The U.S. Court of Appeals for the District of Columbia Circuit has ruled in Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), that President Obama’s “Recess Appointments” of three new NLRB members in January 2012 were unconstitutional and, as a result, the Board lacked any constitutional authority to act since that time. For details of that decision, click here.

Noel Canning will likely be appealed to the U.S. Supreme Court. However, for those Board rulings that have been issued since January 4, 2012, like Banner Health System d/b/a Banner Estrella Med. Ctr., 358 NLRB 93 (July 30, 2012), there is a strong argument that they are similarly invalid. In Banner Health System, the Board ruled an Arizona hospital violated the NLRA when its human resources consultant asked employees interviewed in connection with an internal investigation not to discuss the matter with co-workers while the investigation was ongoing. The Board found that the employer’s “generalized concern” regarding the need to protect the integrity of its investigation was insufficient to outweigh employees’ Section 7 rights. Instead, the Board explained it was “the [employer’s] burden to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up.” The Board then determined that, in applying a “blanket approach” to maintaining confidentiality with respect to the internal investigation, the employer did not meet the requirement of evaluating whether an actual threat to the integrity of the investigation existed to justify the need for such confidentiality.

Check back for additional postings on the status of Noel Canning, Banner Health System and best practices for handling internal investigations in the healthcare industry. Employers seeking to raise a Noel Canning defense to existing unfair labor practice charges should carefully review the issue with legal counsel.