The United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013, which struck, as unconstitutional, President Obama’s recess appointments to the National Labor Relations Board (“NLRB”). Noel Canning v. NLRB (Case No. 12-1115) Typically, recess appointments to the NLRB,  pursuant to the Recess Appointments Clause of the Constitution, are made during Senate recess.  In its Opinion, the D.C. Circuit Court held that because the appointments at issue were not made during the intersession recess (the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued), these appointments were invalid from their inception. Therefore, because the Board lacked a quorum of three members when it issued its decision in Noel Canning, the D.C. Circuit Court vacated the holding.

In response, Chairman Mark Gaston Pearce issued the following statement: “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

Regardless, this is a major development that could invalidate all NLRB decisions during the time in which President Obama’s appointees were on the NLRB.  Below are summaries of the major decisions in 2012 that may be impacted by this ruling:

  • In Hispanics United of Buffalo, the NLRB held that the discharges of five employees regarding posts made on Facebook violated the NLRA. The NLRB indicated that the Facebook posts and comments were protected under the NLRA because they concerned job performance, and because they involved the preparation of co-workers to defend against allegations of poor work performance.
  • In Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, the NLRB held that Costco’s policy prohibiting employees from making statements that “damage the Company, defame any individual or damage any person’s reputation” violated the NLRA.  The NLRB reasoned that the policy was broad enough to chill employee rights under the NLRA.
  • In WKYC-TV, Inc., the NLRB overruled fifty years of its own precedent holding that a union dues check-off provision in a collective bargaining agreement, which provides for the automatic deduction of union dues from unionized employees’ paychecks, survives the expiration of a collective bargaining agreement.
  • In D.R.Horton, Inc., the NLRB held that it is a violation of federal labor law to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court. Employees cannot be asked to waive a judicial form and to not bring class or collective claims in arbitration. Arbitration may be individual, as long as judicial forum is open to class or collective actions, or judicial may be prohibited as long as class and collective arbitration is open.
  • In Latino Express, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned.
  • Finally, in Banner Health System, the Board held that an employer’s policy of asking its employees involved in an investigation into an internal complaint to its human resources division to refrain from discussing that ongoing investigation with co-workers, violated the NLRA.  The NLRB held that this policy was overbroad and violated employees’ rights under Section 7 of the NLRA because it prevented employees from discussing discipline and investigations of discipline.