Several weeks ago, the NLRB filed a petition for certiorari in the U.S. Supreme Court asking it to reverse the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB. In Noel Canning, the Supreme Court found that President Obama’s recess appointments to the NLRB were unconstitutional and that since January 2012, the NLRB has lacked a quorum. You can read our post on it here.
As that petition awaits the Supreme Court, another appeals court, the Third Circuit, threw its hat into the ring, issuing a 2-1 decision that accords with Noel Canning. Now the only two appellate courts to have considered the issue have found that the NLRB is not properly constituted. If the Supreme Court declines cert in Noel Canning or affirms the decision, it will mean that all decisions from the NLRB since January 2012 are invalid. That would include groundbreaking decisions the NLRB has reached on social media, arbitration agreements, investigations and other issues affecting both non-union and union employers.
In the meantime, the President has nominated new members to the NLRB. Traditionally, the NLRB has been constituted by five members, three from the President’s party and two from the other party. The President nominated three Democrats (the current Chairman and the two purported recess appointees) and two Republicans. The Senate has taken those nominations under consideration and they are expected to be voted on in committee next week.
The NLRB has also doubled down on its much maligned decision in Banner Health Systems that purported to limit an employer’s ability to require confidentiality in internal investigations of the workplace. While that decision is being reviewed by an appellate court, the NLRB issued an Advice Memo in which it found that an employer’s policy requiring confidentiality in all investigations was improper. The NLRB suggested that the employer should change its policy to clarify that it can only require confidentiality “in some circumstances.”
And if that was not enough, a decision is expected any day from the Fifth Circuit in its review of the NLRB’s controversial decision in D.R. Horton. In that case, the NLRB found that class action waivers in mandatory arbitration agreements violated Section 7 of the Act. Although there is no consensus, many employment lawyers expect the Fifth Circuit to vacate the NLRB’s decision.