The National Labor Relations Board has pursued an infamously activist agenda during the Obama administration, issuing hundreds of new rulings that regulate – and penalize – both unionized and non-union employers. With recent legal challenges to the NLRB’s authority to do so resolved in 2014, the pace of that agenda will quicken, affecting both unionized and non-union employers alike.
In Noel Canning v. NLRB, an employer successfully challenged President Obama’s 2012 recess appointments (that is, appointments made between Congressional sessions and without Congressional approval) to the NLRB, since without those appointments the NLRB lacked the quorum it needed to act. (Noel Canning is now on appeal to the U.S. Supreme Court.) Since that time, however, the President has duly appointed – without resort to the “recess appointment” process – a duly constituted NLRB. The new NLRB can be expected to re-issue decisions that might be invalidated on Noel Canning grounds, as well as to continue to pursue an activist agenda, including requiring employers to allow employees to use Company e-mail to discuss unionizing, implementing “quickie election” rules that deny employers a chance to communicate effectively with employees during union campaigns, and finding that the arbitration agreements and employment policies even of non-union employers violate the National Labor Relations Act. We can help you anticipate these developments as they unfold in 2014.