The National Labor Relations Board recently issued a number of precedent-changing decisions with significant implications for employers, many reached in the final days of Member Brian Hayes’ term ending Dec. 16, 2012. This month’s column is the first of two articles discussing these board rulings touching on a variety of issues, including the confidentiality of internal investigations and witness statements, the obligation to bargain over discipline of bargaining unit employees where there is no collective bargaining agreement in place, whether a mandatory dispute resolution policy interferes with Section 7 rights and employer obligations in connection with backpay awards.
Over the last year, there were five board members, including Chairman Mark Pearce (D), Brian Hayes (R) and three members who were recess appointments by President Barack Obama on Jan. 4, 2012: Terence Flynn (R) who resigned July 2012, Richard Griffin (D) and Sharon Block (D). Significantly, on Jan. 25, 2013, the U.S. Court of Appeals for the D.C. Circuit issued a decision finding Obama’s three recess appointments unconstitutional, in part because the appointments did not occur during a recess of the Senate. Noel Canning v. NLRB, No. 12-1115, D.C. Circuit (Jan. 25, 2013). We can expect the board to seek review of the D.C. Circuit’s ruling by the U.S. Supreme Court. However, if upheld, this ruling calls into question the validity of the board’s decisions dating back to Jan. 4, 2012, including the cases discussed here, on the basis that they were not made with the required three-member quorum.
