A January 25 decision by the U.S. Court of Appeals for the D.C. Circuit declared unconstitutional President Obama’s most recent recess appointments to the National Labor Relations Board. Under this decision, Noel Canning v. NLRB, No. 12-115 (D.C. Cir. Jan. 25, 2013), two of the three current board members lacked authority to issue decisions for the board and lacked that authority since January 2012. During that period, more than 300 board decisions were issued, including several noteworthy decisions that expanded the scope of the National Labor Relations Act (NLRA) and declared unlawful some significant workplace policies of both union and nonunion companies.
Although many people believe that the NLRA governs only strikes, unionization and collective bargaining, the truth is that labor board rulings can also affect the policies adopted by companies that do not employ any unionized workers and are not confronting a union organization campaign. Several NLRB decisions in 2012 continued its recent expansive definition of what are called "Section 7 rights" in ways that regulate workplace policies for virtually all nonsupervisory private-sector employment. The Noel Canning decision puts these expansive rulings into question, but they are still legally binding. And, if recent history is any guide, they will be effectively reinstated once the Obama administration finds a way to correct the technical defects identified by Noel Canning, even if that ruling is affirmed in an anticipated U.S. Supreme Court appeal.
