Last week, the United States Supreme Court held that the purported “recess appointments” of NLRB Members Block, Flynn and Griffin were unconstitutional. See N.L.R.B. v. Canning, 12-1281, 2014 WL 2882090 (U.S. June 26, 2014). Therefore, the Board will have to reconsider and reissue hundreds of prior opinions.

This is good news for employers because many of the opinions issued by the Board between January of 2012 (the date of the unconstitutional recess appointments) and July of 2013 (the date the current Board was confirmed by the Senate) were highly controversial and tended to promote the interests of organized labor at the expense of management.

Some of the pro-union decisions that the Board will most likely be forced to reconsider include:

  1. D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012). – The Board argued that class action litigation qualified as protected concerted activity for the purpose of mutual aid or protection. Therefore, it held an arbitration clause, which required employees to individually arbitrate all employment-related claims, was unenforceable because it unlawfully interfered with employees’ rights under Section 7 of the National Labor Relations Act.  
  2. Specialty Healthcare Voting Cases – “Micro Bargaining Units” – The Board consistently held that small bargaining units were appropriate units for the purpose of NLRB sponsored elections. These rulings are significant because they allow unions to win elections by defining the bargaining unit such that it only includes pro-union groups of employees. For example, the Board held that rental car service agents constituted an appropriate bargaining unit even though they only made up 1/3 of the rental car facility’s hourly workforce. See Dtg Operations, Inc. & Teamsters Local Union No. 455, Int'l Bhd. of Teamsters, 357 NLRB No. 175 (Dec. 30, 2011).  
  3. WKYC-TV, 359 NLRB No. 30 (Dec. 12, 2012). – The Board held that employers must continue to pay the union check-off dues even if the collective bargaining agreement which gave rise to their obligation to do so has expired.

The bad news is that the new Board will most likely reaffirm many of these controversial decisions. Additionally, the review process will be lengthy and will limit the Board’s ability to process newly filed cases. Therefore, employers with cases that are currently pending before the Board may experience delays in having their cases resolved.