When the U.S. Supreme Court decided in June that President Barack Obama’s three recess appointments to the National Labor Relations Board in January 2012 were invalid, NLRB Chairman Mark Gaston Pearce stated, “[The Board is] committed to resolving any cases affected by today’s decision as expeditiously as possible.”
Now, the Board has issued a 21-page list of 416 “contested cases in which one or more of [the] challenged appointees [under the Supreme Court’s NLRB v. Noel Canning decision] participated in the issuance of a decision.” See Supreme Court Issues Historic Decision on President’s Recess Appointment Power.
While the NLRB does not now indicate any plans for review of the cases, given Chairman Pearce’s statement, the Board may reconsider all of the decisions on the list and reconfirm them. The composition of the current Board is not unlike that of the Board that decided the cases earlier.
The cases deal with important issues:
- unlawful confidentiality policy
- “inability to pay” argument made at bargaining table
- Facebook/protected concerted activity
- duty to bargain over discretionary discipline post-certification of representative but pre-contract
- confidentiality of witness statements/work product doctrine
- unlawful grievance-arbitration policy restricting employees’ rights to access NLRB processes
- dues deduction after expiration of collective bargaining agreement
- unlawful “courtesy” rule in handbook
- miscellaneous work rules, including unlawful rule prohibiting employees from electronically posting statements that “damage the Company . . . or damage any person’s reputation.”
- confidentiality of investigations policy