President Obama made three appointments to the NLRB during what he stated was a Senate recess in January 2012.  The Supreme Court ruled the Senate was not formally in recess at the time, making the appointments unconstitutional.  As a result, a whole slew of NLRB decisions which were issued when these three appointees sat on the Board will have to be revisited.  The NLRB needs a three-member quorum to have the authority to operate.

There are several notable cases that may require review in light of this decision.  A few of these affect non-unionized as well as unionized workplaces.  The first is the Banner Health case, in which the Board ruled that employers could not maintain a blanket policy of requiring employees to keep any internal investigation confidential.  The Board held that employers must justify any confidentiality requirements by pointing to a legitimate business need not to have the employees discussing the investigation.  Two other critical cases, Costco Wholesale Corp. and Hispanics United, both related to social media policies.  In Costco Wholesale, the Board struck down a policy banning statements which harmed the company's reputation.  The Board found the policy overbroad, stating it could be read as prohibiting any comments criticizing the company or working conditions.  In Hispanics United, five employees were fired after they responded on Facebook to another employee's criticism of their job performance.  The employer maintained the employees were fired for harassing and bullying the original poster online, but the Board said the Facebook posts were concerted action relating to job conditions and were therefore protected by the NLRA.

It is still unclear how or when these decisions will be revisited, but we will keep you posted on further consequences of the Supreme Court ruling.

National Labor Relations Board v. Noel Canning et al., (2014) 573 U.S. – [case number 12-1281]