Page 18 - ABC Indiana: The Hoosier Contractor, Spring 2013

18 The HOOSIER CONTRACTOR SPRING 2013
without a proper quorum. The appeal is pending before the
D.C. Circuit. While the recent Noel Canning decision does
not invalidate the rules, it makes their invalidation by the
D.C. Circuit likely considering the case will turn on whether
the Board had a quorum when the rules were adopted – the
very issue the D.C. Circuit just decided in Noel Canning.
Of course, intervention by the Supreme Court could affect
that certainty.
On July 30, 2012, the Board inBanner Health Systems adopted
a rule that could have sweeping, unforeseen consequences for
employers conducting internal company investigations. This
case involved a hospital employee accused of misconduct
and the internal investigation that followed. The Board
found that the employer’s policy prohibiting employees from
discussing ongoing investigations violated the employees’
Section 7 rights, a decision that effectively forced employers
to carefully document special circumstances in order to
prove that a confidential investigation is justified to protect
witnesses, preserve evidence, or stop cover-ups.
Finally, over a six-day period in December of 2012, the
Board issued a number of last minute, end-of-year decisions
affecting merit shop contractors. These and other end-of-
year decisions could be revisited and overturned after Noel
Canning. For example, in Hispanics United of Buffalo the
Board determined that five employees had been terminated in
violation of their Section 7 rights due to Facebook posts about
a co-worker, posts that the Board deemed to be “concerted
activity.” In another case, Supply Technologies LLC, the
Board struck down an arbitration agreement for a non-union
company, claiming that the agreement was ambiguous in
such a way that an employee might read it to restrict their
right to file charges with the Board. Also, in Alan Ritchey,
Inc., the Board held that a newly unionized employer who
does not yet have a contract with the union must nevertheless
bargain over individual discipline decisions to the extent the
decision involves any measure of discretion by the employer.
And, in WKYC-TV, Gannet Co., the Board overturned 50 years
of established precedent by holding an employer’s obligation
to deduct union dues from an employee’s pay continues even
after the expiration of the agreement.
The Board currently consists of only one member who has
been duly appointed and confirmed by the Senate, thereby
preventing any decision from being re-visited by the Board at
present. Once additional members are appointed, the Board
may or may not voluntarily re-visit the 2012 decisions. The
Board may also be compelled by appellate courts to re-visit
2012 decisions on a case-by-case basis. Notably, the Board
cannot be forced to come to a different result for each decision
it made in 2012. For example, when the U.S. Supreme Court
in 2010 invalidated all two-member decisions made by
the Board, the Board responded by having a three-member
panel review and affirm the two-member decisions, the vast
majority of which were affirmed without additional analysis.
The opportunity to have decisions re-examined, however, is
valuable nevertheless.
Conclusion
Noel Canning v. NLRB is a significant setback for the Obama
Administration and the National Labor Relations Board, not
just because the case calls into question the Board’s power
in hundreds of decisions during 2012, but also because it
casts doubt on the Board’s current power to issue decisions.
The case will almost certainly go to the Supreme Court, as
it implicates balance of power issues between the President
and the Senate that reach beyond labor law. The Supreme
Court’s decision, if in fact the Court accepts a request for
review of the decision, will likely decide the fate of the
sweeping and controversial decisions the Board has made
since January 4, 2012.
1 Mr. Hanson and Mr. Finklea are both partners with Scopelitis, Garvin, Light,
Hanson & Feary, P.C. in the firm’s Indianapolis office. Both Mr. Hanson
and Mr. Finklea focus their practice on labor and employment issues in the
transportation and construction industries.