The United States Court of Appeals for the District of Columbia Circuit in the case of Noel Canning v. National Labor Relations Board (“NLRB”) threw the area of employment law into a state of turmoil. On January 25, 2013, the Court ruled that three of President Obama’s appointments to the NLRB were invalid.  If this decision is not overturned it means that more than 200 decisions by the NLRB may no longer be valid and may have to be revisited.  Included in the decisions are a number of rulings dealing with employers’ attempts to restrict employees’ use of social media.
The most controversial decisions by the NLRB during this time were the rulings that employees can use social media to complain about or comment on management, without retribution.  As an example, see the Costco case decided on September 7, 2012.  These were also other decisions concerning employers’ social media policies and what restrictions were overly broad.  These cases are likely to be appealed and the state of the law will be in some state of turmoil until these issues are resolved.
Sharon Block, Richard Griffin and Terence Flynn’s appointments were all ruled invalid.  They were all appointed prior to January 4, 2012.  There are only five members on the NLRB.  These three members were part of the quorum necessary for the NLRB to decide cases since January 4, 2012.  Without them the NLRB did not have a proper quorum and thus each of its decisions would be in question.  
The NLRB continues to stand by its rulings, and therefore, it appears that this case is headed for the Supreme Court to ultimately decide this issue.  There have been contrary decisions by other appeals courts.  This split in decisions and the importance of the issue presented make it likely that the Supreme Court will take the case and make a decision on the matter.  One of the issues will be: if this decision is upheld, there have been a large number of other appointments and actions that could also be found to be unconstitutional.   Also, it appears that Presidents going back to James Madison and certainly all the recent Presidents have made the same type of appointments, which would now be considered unconstitutional.  
We’ll just have to wait and see what the NLRB and the Supreme Court do.



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