Unnoticed and with no fanfare, the Board brought the two member era to a close with its adoption of the last of the two member Board decisions, The Fremont-Rideout Health Group, 359 NLRB No. 51 (January 15, 2013). The Board adopted the previous decision in the same case, reported at 354 NLRB 453, which had issued on August 27, 2009.
The issue addressed in the Fremont-Rideout case involved whether the Board should issue a bargaining order as part of the standard relief when an employer has been found to have unlawfully withdrawn recognition from an incumbent union. The Board applied extant case law for the proposition that it would issue such an order only after considering the extent to which, in the context of an individual case, such an order would infringe on the NLRA right of employees to select their representative for collective bargaining; whether other purposes of the NLRA would override that right; and whether alternative remedies were available.
In that sense, the Fremont-Rideout decision is unremarkable, because – like the two member Board – the current Board simply adopted existing, controlling law. (However, in adopting the previous decision, the current Board did omit the footnotes of Member Schaumber, criticizing existing law and suggesting that he would favor revisiting and possibly changing it.)
Of greater interest is what the case tells us about the current imbroglio involving the recess appointment issue. When that issue is finally resolved, there will still be months and years of follow-up, perhaps lasting as long as the three and one-half years in this case, before cases decided by the current, improperly constituted Board, are eventually reviewed by a future, properly constituted Board. Beyond that, it is possible that the employer here in the Fremont-Rideout case will simply take the latest ruling back to the court of appeals, this time on a different Board jurisdictional defect. And perhaps another three and one-half years or longer will pass before this case is finally finished at the Board.
