In the recent case of Noel Canning v. National Labor Relations Board, the U.S. Court of Appeals for the District of Columbia’s Circuit ruled that three of President Obama’s recess NLRB appointments unconstitutional.


Sharon Block (D), Richard F. Griffin (D), and Terence F. Flynn (R) were appointed after the opening of the second session of the 112th Congress; Members Block and Griffin were formally re-nominated, but Flynn has since resigned. The NLRB is composed of five members and cannot issue decisions or take other action in the absence of a valid three-member quorum.

Noel Canning has the possibility of overturning more than 100 Board decisions, including several regarding labor relations, from January 4, 2012 to the present. Essentially, since the Board technically did not have the required quorum, all decisions made during this period could be deemed invalid.
Specific, high-profile cases that may be impacted include the following:

Social Media
Costco Wholesale Corp., 358 NLRB No. 106 (2012) (holding that employer’s electronic communication policy that prohibited electronic postings that “damage the Company, defame any individual or damage any person’s reputation” unlawfully restricted employees’ protected rights).

Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012) (holding that employer’s handbook rule prohibiting “disrespectful” language or “any other language which injures the image or reputation of the Dealership” was unlawful).

Employer Confidentiality Rules
Costco Wholesale Corp., 358 NLRB No. 106 (2012) (adopting the Administrative Law Judge’s ruling that the employer’s rule that prohibited employee discussion of “private matters of members and other employees” was unlawfully overbroad).

Banner Health System, 358 NLRB No. 93 (2012) (holding that the employer violated the NLRA by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the employer conducted the investigation).

Off-Duty Employee Access Rules
Sodexo America LLC, 358 NLRB No. 79 (2012) (holding that employer’s off-duty access rule was invalid because the rule granted the employer “unfettered discretion” to determine which employees could access the facility while off duty).

Marriott Int’l, Inc., 359 NLRB No. 8 (2012) (holding that the employer’s policy of prohibiting off-duty employees from accessing the employer’s property without managerial approval was unlawful).

Dues Check-Offs
WKYC-TV, Gannett Co., 359 NLRB No. 30 (2012) (holding that an employer’s duty to collect union dues from employees pursuant to a dues check-off provision continues even after the expiration of the collective bargaining agreement).

Employee Discipline
Alan Ritchey, Inc., 359 NLRB No. 40 (2012) (holding that unionized employers must give the union notice and an opportunity to bargain before imposing discretionary discipline involving demotions, suspensions, and terminations where the applicable collective bargaining agreement does not establish a grievance-arbitration process).

Despite the D.C. Circuit’s ruling in Noel Canning, the Board has vowed to continue with business as usual, although any decisions made will also be in jeopardy. Thus, until this issue is decided by the Supreme Court, any decision issued by the Board will be questionable.