When the Supreme Court decided National Labor Relations Board v. Noel Canning on June 26, 2014, it invalidated the cases that the NLRB decided between January 4, 2012 and August 3, 2013. Here are some of the key cases affected by this opinion:
- Costco Wholesale Co. – Here the Board held unlawful an employer’s handbook policy prohibiting employees from electronically posting statements that damage the company, defame any individual, or damage any person’s reputation.
- Fresenius – The Board decided that the employer violated the Act when it terminated employee for writing vulgar, offensive, and threatening statements on materials; left the materials in employee break rooms; and then lied about writing the statements.
- Hispanics United of Buffalo – The Board found that the employer violated the Act by firing five employees for making bullying and harassing Facebook comments in response to a co-worker’s criticism of their job performance.
- D.R. Horton – The Board held that the employer violated the Act by maintaining a mandatory arbitration policy that required all disputes be arbitrated on an individual basis, thereby precluding class or collective treatment of the arbitration.
- Alan Ritchey, Inc. – The Board concluded that an employer must bargain with a union before imposing discretionary discipline on an employee during the period after the union has become the bargaining representative but before the parties have agreed to a first contract.
- Banner Health – Here the Board found that the employer violated the Act by maintaining a policy that asked employees subject to an internal union investigation to refrain from discussing the matter during an ongoing investigation.
- Piedmont Gardens – The Board overruled longstanding precedent exempting witness statements gathered during an employer’s internal investigation from disclosure to a union.
- WKYC-TV – The Board overruled a fifty-year precedent and concluded that an employer is obligated to continue deducting union dues after expiration of a collective bargaining agreement that includes a dues check-off clause.
- Micro-union decisions – The Board has announced that it will approve a bargaining unit proposed by a union if the group is readily identifiable as a unit and shares a community of interests. This new standard would permit a union to organize a single department even if a majority of the employees at that location voted against a union.
Many of these cases reflect the Board’s continuing efforts to stretch its reach to non-union workplaces. While the decisions are invalid for now, the current Board will likely readopt them. So the safest practice may be to follow them for the time being. One notable exception is D.R. Horton, which has been rejected by federal and state courts (including the recent Iskanian decision in California). Even a reconstituted Board will have difficulty resuscitating that one.
Thanks to Chip Zuver for helping to pull this post together.