Noel Canning has been decided; the Supreme Court invalidated President Obama's NLRB recess appointments. Approximately 436 decisions were issued over the 18 month period by the "recess" Board. So now what? Chaos? The Board won't function? Probably not. The aftermath of the Supreme Court's New Process Steel decision invalidating the two member Board was not the nightmare it could have been. Many cases had been settled or compliance had been completed. There are about 100 cases in various federal courts that will be affected by the Noel Canning decision [lexis.com subscribers may access Supreme Court briefs and the opinion for this case]. The Supreme Court's decision will not have any impact on the how the Obama Board will decide cases. Employers who expect the end to the NLRB's foray into the non-union sector with its oversight of employer personnel policies and practices will be disappointed. The rationale of the "recess" Board is alive and well in the current Board with respect to the broad interpretation of concerted, protected activity and the tendency to find employer policies either directly violated or tend to chill the exercise of employee § 7 rights. Current General Counsel Griffin was one of the recess Board members, and his views will shape the litigation strategy of the General Counsel's office. What has gotten lost in the aftermath of the Noel Canning decision is the fact that Member Schiffer's term expires on December 16, 2014 after the November election. One thing that will be certain is after that time, absent a new appointment, the Board will be comprised on an even number of Democratic and Republican members. Employers can expect a major push to implement as much of the Obama Board's agenda as possible, including the overturning of Register Guard and the implementation of the new streamlined and expedited representation procedure. Things are going to get very interesting.
For additional Labor and Employment law insights from John Holmquist, visit the Michigan Employment Law Connection.
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