That may be what the NLRB and others are thinking right now. Remember all those rather aggressive decisions made by the NLRB about a couple of years ago? It is as if they never happened. In a unanimous decision, the United States Supreme Court has invalidated all decisions of the NLRB since January 2012, when President Obama appointed 3 of the 5 member NLRB during a time when Congress was convening every 3 days, to July 2013, when the Senate confirmed a 5 member board. In National Labor Relations Board v. Noel Canning, the Supreme Court held that the president lacked authority to make the appointments as they were made at a time that did not constitute a congressional recess during which the president is permitted to make such appointments.
As a result of Noel Canning, the NLRB lacked a quorum to act on cases during the 18 month period from the January 2012 appointment until Congress voted to confirm 5 NLRB members in July of 2013. Accordingly, the decisions made during this time, many of which were considered controversial, are invalid and will now have to be reconsidered by the newly formed NLRB. These include rulings that the following policies violated the National Labor Relations Act: social media policies that prohibited statements damaging the employer or defaming any individual, or prohibited postings that are disrespectful, profane, or injurious to the image or reputation of the employer; a policy limiting employee discussions of ongoing investigations into potential employee misconduct; a policy restricting employees’ off-duty access to the workplace; and a policy to stop deducting union dues from paychecks after the expiration of the collective bargaining agreement.
But the dream may still become a reality. Since the post-July 2013 NLRB seems to hold views similar to its ill-conceived predecessor, it is likely that many of these issues will be decided along the same lines in the future. A prudent employer should therefore consider using the invalid decisions as a guide pending new decisions by the NLRB.
