On June 26, 2014, the Supreme Court invalidated 426 National Labor Relations Board (NLRB) decisions in NLRB v. Noel Canning, 134 S. Ct. 2550 (2014). The effect of Noel Canning was to invalidate every contested Board decision between January 3, 2012, and August 4, 2013, as the Board had two or fewer properly appointed members during that time. No decisions on or after August 5, 2013, were affected.
The Board has been taking an increasing interest in common workplace policies, and has invalidated a number as violating employees’ Section 7 rights to engage in concerted activity,e.g., discussing the terms and conditions of employment. We discussed some of these decisions in our January 2013 ELC, but many are no longer valid.
Here are five important workplace rules decisions that have been invalidated by Noel Canning that affect nonunion workplaces:
Banner Health System d/b/a Banner Estrella Medical Center, 358 NLRB No. 93 (2012). This decision held that a blanket confidentiality rule governing employer investigations violated the National Labor Relations Act (NLRA), and the employer must show a particularized “legitimate business justification” before requiring confidentiality for any given investigation.
- Commenting in the media. DirectTV, 359 NLRB No. 50 (2012). In this case, the Board invalidated rules prohibiting employees from contacting the media or commenting to the media about DirectTV and from responding to law enforcement inquiries without first contacting DirectTV’s security department.
- Restricting off-duty access. Sodexo Am. LLC, 358 NLRB No. 79 (2012). This decision invalidated a provision restricting off-duty access to the hospital, because it discriminatorily allowed access for “hospital-related business.”
- Prohibiting “walking off” the job. Ambassador Services, Inc., 358 NLRB No. 130 (2012). Here the Board invalidated a work rule that prohibited “walking off the job” since that phrase was similar to a “walk out,” which is protected, concerted activity.
- Requiring “courtesy.” Karl Knauz Motors, 358 NLRB No. 164 (2012). In this case, the Board found a car dealership’s courtesy policy invalid, and the case has been cited by several other decisions regarding similar policies.
So what is the Board doing about these and other cases?
None of these cases have been addressed by the Board yet, but we know the Board is moving forward. The same day Noel Canning was issued, the Board announced it was analyzing the impact of the case and was “committed to resolving any cases affected by” the decision.1 Although the Board has issued no further formal statement, the General Counsel, Richard Griffin, has commented publicly and stated there were 98 cases in the U.S. Court of Appeals, and in 49 of those cases the Board has filed motions to have the cases remanded to the Board. In four of the above five cases the Board has sought a remand: Banner Health, Sodexo, DirectTV, and Ambasador Services. The fifth case, Karl Knauz Motors, was closed, meaning it was not on appeal and the Board will not reexamine the decision. Karl Knauz Motors no longer has precedential value. However, while affected decisions in closed cases no longer have precedential value, the General Counsel has publicly indicated the reasoning behind those decisions should be considered persuasive and adopted.
What do we think the Board will do?
There are two reasons to believe that the Board will rubber stamp its prior decisions in these and other invalidated cases. First, the Board has been properly constituted for nearly a year, and, in that year has continued to take a broad view of Section 7 rights and their interplay with employer policies. Second, this is not the first time the Supreme Court has invalidated a large number of Board decisions, as it invalidated nearly 600 Board rulings in 2010 with its decision in New Process Steel, L.P. v NLRB, 136 S.Ct. 2635 (2010).2 So far, the Board has been approaching Noel Canning the same way it responded to New Process Steel. Both times, the Board first took action ratifying all of the personnel, administrative, and procurement actions taken,3 and then sought prompt remand of the cases pending in the Courts of Appeal. Most importantly, after New Process Steel—and perhaps in our near future—the Board rubber stamped many of the affected decisions with very brief opinions simply stating that the Board was adopting the prior decision “for the reasons stated” in the invalidated decision.4