What is No Longer the Law after Noel Canning Invalidated Obama’s Recess Appointments to the NLRB

Although many controversial cases were decided by the radical pro-union NLRB between the end of 2011 and mid-2013, what follows are some of the more notable decisions that are likely no longer the law – until, at least, the current Board has the opportunity to make them law again.

  • In Re Piedmont Gardens held that employers were required to turn over witness statements to the union obtained during internal investigations if the statements are requested for arbitration or grievance.
  • Alan Ritchey, Inc. held that newly unionized employers must bargain with the union before imposing discretionary discipline on employees represented by the union even before a collective bargaining agreement has been executed.
  • Hispanics United of Buffalo, Inc. held that the termination of five employees for posts they made on Facebook was unlawful and employers were urged to be cautious when making any employment decision based on social media sources.
  • Banner Estrella Medical Center held that employers must have a legitimate reason for ordering employees to maintain confidentiality during company investigations of employee complaints or misconduct. Further, “blanket rules” prohibiting employees from discussing the matters being investigated are prohibited.
  • WKYC-TV held that employers could no longer unilaterally suspend dues check off after the expiration of a collective bargaining agreement.

While these cases are no longer good law, they will likely become law as soon as the NLRB has the opportunity to rule on cases with the same legal issues. For example, the Board will soon hear Lincoln Lutheran of Racine and will likely re-implement the WKYC-TV holding. Hat tip to Reinhart Boerner, Van Deuren, S.C.

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