The last year or so has not been a good one for the NLRB. Time and time again the courts have shot down the Board in a number of matters, including the Board’s notice posting rule, its attempt to modify its own election rules for processing representation petitions, as well as D.R. Horton being denied enforcement and otherwise ignored by every court of appeals which has reviewed the issue. And now, the Administration’s recess appointments to the Board have been found to be unconstitutional by the U.S. Supreme Court in the case of NLRB v. Noel Canning. Any one of these defeats, by itself, would not have much of an impact upon the Board and its policymaking. But, at this point, there will definitely be a reassessment by the NLRB, given the cumulative effect of all these adverse decisions. In other words, attempts to move forward on a number of these items will decelerate. The NLRB is going to have to be very judicious in how it moves forward due to the embarrassing nature of its many losses over the recent months. Moreover, its resources are going to be taxed in terms of reviewing the many cases issued by those members who were appointed via the recess appointment process.
The number of representation petitions being filed and processed by the Board has dropped precipitously in recent years, so the Board does not have a great number of cases to push forth its agenda through its case decisions in that area. However, it obviously can do so through its unfair labor practice proceedings. Some of the larger issues in play right now before the Board include modification of the rules regarding employee and union access to an employer’s e-mail system, redefinition of the joint employer doctrine, and expanding Weingarten to the non-union context, once again. It is this process and procedure, where the majority of the changes will take place in terms of the NLRB’s reach into the workplace.
Many of these issues should be flushed out by the time the Labor & Employment seminar takes place later this year. But, in the interim, please feel free to review our labor blog at LaborRelationsLawInsider.com.