Important NLRB Rulings Impacted by the Supreme Court’s Noel Canning Decision

As reported in a recent Breaking News elert, on June 26th the Supreme Court ruled in Noel Canning that President Obama exceeded his authority in January 2012 by appointing three people to the National Labor Relations Board (“NLRB”) while the Senate was not in recess. This means that the 436 cases, decided by the NLRB during the 18 month period in which two of the three now-invalid appointees were seated, are also invalid. Some of those decisions significantly impacted non-union workplaces.

So, what happens now?

The answer is that the NLRB’s current board members (all of whom received appropriate Senate confirmation) must decide whether to revisit those 436 cases and “redecide” them so as to make them effective. Although the vast majority of the decisions affected by Noel Canning are not considered significant, several of the decisions were highly controversial, including each of the following cases:

• Banner Health Systems – In this decision, the NLRB found that an employer violated the National Labor Relations Act (“NLRA”) by maintaining a policy requiring employees not to discuss internal investigations with co-workers during the pendency of the investigation
• Costco Wholesale Corp – The NLRB held unlawful an employer’s policy prohibiting employees from electronically posting statements that could damage the company, defame an individual, or damage any person’s reputation;
• D.R. Horton – This decision, which has already been contradicted by several Federal Circuits, held that an employer violated the NLRA by maintaining a mandatory arbitration policy that required all disputes to be arbitrated on an individual basis, thereby precluding class or collective treatment of the arbitration
• Fresenius USA Manufacturing – This controversial decision found that an employer violated the NLRA when it terminated an employee for writing vulgar, offensive, and threatening statements on materials which he left in company break rooms, and subsequently lied about doing so
• Hispanics United of Buffalo – Another highly controversial decision in which the NLRB ruled that a non-unionized employer violated the NLRA by firing five employees for making bullying and harassing Facebook comments in response to a co-worker’s criticism of their job performance

Although each of these decisions are technically invalid, as a practical matter, the current Board is expected to re-adopt the holdings in future proceedings. Therefore, the safest practice may be to remain mindful of these decisions in the interim.

If you have questions about how your organization may be affected by the Supreme Court’s Noel Canning decision, please contact your Elarbee Thompson attorney, a member of the firm’s Labor Relations Practice Group, or respond to this email.