The intersession/intrasession dichotomy is not controlling.

It makes no difference whether the appointments were made when the Senate was only engaged in pro forma sessions.

Recess appointments are available for preexisting vacancies.

Vacating the decision.

Agreeing to have the case remanded to the Board.

Asking that the court in question expedite the process.

Banner Estrella Medical Center (Banner Health System). In this case, the Board majority struck down a rule prohibiting employees from discussing ongoing investigations of misconduct with other employees. The Board ruled that the employer must show a legitimate justification that outweighs the employees' Section 7 rights. The employer argued that the request not to discuss the on-going investigation was made to preserve the integrity of the investigation. In dissent, Board Member Hayes noted that the employer had not promulgated a work rule but had merely suggested that the employees not discuss the investigation and had made no threat of discipline. (358 N.L.R.B. slip op. 93, (July 30, 2012) and see also Legal Update, Employer Violated NLRA by Asking Employees Not to Discuss Ongoing Investigations with Co-workers: NLRB.)

WKYC-TV, Gannett Co. In this case, the Board majority ruled that an employer must continue to deduct union dues from employees' paychecks after the governing CBA expired. The decision overturned over 50 years of well-established precedent (see Bethlehem Steel, 136 N.L.R.B. 1500 (1962)). As dissenting Board Member Hayes noted, the employer was lawfully entitled to cease deducting and remitting union dues under Bethlehem Steel, but that under the majority's ruling, once dues checkoffs are instituted, employers must continue them past expiration of the underlying CBA forever, or until the parties either agree to discontinue them or reach a valid impasse. (359 N.L.R.B. slip op. 30, (Dec. 12, 2012) and see also Legal Update, 50-year-old Precedent Overruled: Union Dues Checkoff Now Survives Expiring CBA: NLRB.)

Finley Hospital. In this case, the Board majority held that the employer violated the NLRA by failing to provide post-contract expiration wage increases of 3% per year under the expired CBA. In dissent, Board Member Hayes noted that there is neither a contractual nor a statutory duty to make further post-expiration adjustments. He described the majority's holding as "a startling and troubling revelation to employers of a heretofore unknown obligation to continue giving nondiscretionary wage and benefit increases post-expiration at the rate given in the final year of a CBA until the parties reach agreement on a successor contract or impasse." (359 N.L.R.B. slip op. 9, (Sept. 28, 2012) and see also Legal Update, Employer Must Maintain Status Quo by Continuing One-time Pay Raises After Collective Bargaining Agreement Ends: NLRB.)

Alan Ritchey, Inc. In this case, the Board held for the first time in its history that an employer must bargain with the newly-certified union before imposing discretionary discipline during the period before the parties have negotiated a CBA. Board Member Hayes was recused from participating in the decision. (359 N.L.R.B. slip op. 40, (Dec. 14, 2012) see also Legal Update, Unionized Employers Must Bargain about Individual Discipline In Absence of a Collectively-bargained Grievance Process: NLRB.)

Fresenius USA Manufacturing. In this decision, the Board majority held that the employer violated the NLRA when it terminated an employee for writing vulgar, offensive and threatening statements on materials left in a break room and subsequently lying during the employer's investigation of the incident which was called for by female employees who alleged the comments were sexual harassment. The Board majority held the offending employee was privileged to lie during a harassment investigation because his inappropriate comments were related to protected activity during a decertification election. This case presents the dichotomy between an employer's obligations under Title VII of the Civil Rights Act of 1964 (Title VII) and Section 7 of the NLRA. Title VII requires prompt investigation of sexual harassment charges, remedial action and truthfulness by the parties subject to the investigation. While, apparently, the Board majority holds that Section 7 allows the party being investigated to lie if the alleged offense occurred as part of concerted activity. Dissenting Board Member Hayes noted that the majority's ruling "confers on employees engaged in Section 7 activities a degree of insulation from discipline for misconduct that the Act neither requires nor warrants." He continued that the majority "impermissibly fetters the ability of employers to comply with the requirements of other labor laws to maintain civility and order in the workplace by monitoring and enforcing rules nondiscriminatorily prohibiting abusive and profane language, sexual harassment, and verbal, mental and physical abuse." (358 N.L.R.B. slip op. 138, (Sept. 19, 2012) and see also Legal Update, Employee's Offensive and Potentially Harassing Comments Are Protected under the NLRA: NLRB.)

Piedmont Gardens. In this case, the Board majority overturned the long-standing and well-established rule adopted in Anheuser-Busch, which held that an employer's general obligation to provide relevant information in response to a union's request does not include the duty to provide witness statements obtained during an employer's investigation of employee misconduct (237 N.L.R.B. 982 (1978)). As dissenting Board Member Hayes noted, the rule in Anheuser-Busch had provided a bright-line test for over 30 years which "protects the integrity of the arbitration process, protects employee witnesses who participate in workplace investigations from coercion and intimidation, and enables employers to conduct effective investigations into workplace misconduct." In addition, he noted, by overturning that rule, the Board Majority conflicts with guidance from the Equal Employment Opportunity Commission (EEOC) regarding confidentiality. (359 N.L.R.B. slip op. 46, (Dec. 15, 2012), set aside by Order, (June 27, 2014) and see also Legal Update, 34-year-old Precedent Overturned: Employers Obligated to Provide Witness Statements at Union's Request: NLRB.)

Costco Wholesale Corp. In this decision, the Board held that the company's social media policy violated the NLRA. The company's social media policy provided that employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person's reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment. The Board found that employees would reasonably construe the rule as one that prohibits Section 7 activity because it clearly encompasses concerted communications. (358 N.L.R.B. slip op. 106, (Sept. 7, 2012) and see also Legal Update, NLRB Invalidates Electronic Posting Rule in First Published Opinion Concerning Employers Limiting How Employees Use Social Media.)

Knauz BMW. In this decision, issued a few weeks after its Costco decision, the Board again analyzed the lawfulness of an employer's social media policy which required employees to be courteous and avoid being disrespectful in their dealings with customers, vendors and suppliers and their fellow employees. The Board majority found the policy was unlawful because employees would reasonably construe the prohibition against "disrespectful" conduct and "language which injures the image or reputation of the Dealership" as affecting their ability to engage in protected Section 7 activity. The Board added that employees would interpret the rule as meaning that "statements of protest or criticism" would violate the policy. Dissenting Member Hayes criticized the Majority's method of "reading words and phrases in isolation" effectively "invalidat[ing] any handbook policy that employees conceivably could construe to prohibit protected activity, regardless of whether they reasonably would do so." (358 N.L.R.B. slip op. 164, (Sept. 28, 2012) and see also Legal Update, Facebook Firing Lawful; Employer's "Courtesy" Rule Prohibiting Disrespectful Speech Was a ULP: NLRB.)

J.W. Marriott Los Angeles at L.A. In this case, the Board majority found that a company rule prohibiting off-duty employee access to interior areas of the hotel or to hotel property without managerial approval violated the NLRA. The majority determined the policy was unlawful under a three-part test announced nearly 40 years ago (see Tri-Cnty. Med. Ctr. 222 N.L.R.B. 1089 (1976)) because it did not "uniformly prohibit access to off-duty employees seeking entry to the property for any purpose." Dissenting Member Hayes argued that the Tri-County test "does not require a blanket prohibition on all off-duty access." In support of that position Hayes posed a rhetorical question: "what if an employee forgets her medication at the workplace and faces a medical emergency if she cannot retrieve it?" In response to his own query, Hayes provided the common-sense answer that the NLRA cannot reasonably be interpreted to force employers to choose between "inhuman rigidity and giving off-duty employees free rein to the interior of their facilities." (359 N.L.R.B. slip op. 8, (Sept. 28, 2012) and see also Sodexo Am. LLC, 358 N.L.R.B. slip op. 79, (July 3, 2012) and Legal Updates, Employer's Off-duty Employee Access Rule Invalid; Theoretically, Narrow Exceptions to a No-access Rule Could Be Valid: NLRB and Employer-related Business Exception to Off-duty Access Ban is Unlawful: NLRB).

Supply Technologies, LLC. In this case, the Board majority found that the nonunion employer's mandatory grievance-arbitration program violated the NLRA because it prohibited employees from filing unfair labor practice (ULP) charges or otherwise accessing the Board's processes. The majority noted that the arbitration agreement did not expressly designate complaints to the NLRB as exempt, and that its "ambiguity" made it unlawful. In dissent, Member Hayes criticized the majority's apparent shift from a standard of evaluating whether ambiguous language would reasonably tend to interfere with employees' Section 7 rights to a standard under which any ambiguity in a grievance and arbitration provision not clarified by an express guarantee of an employee's right to file ULP charges with the NLRB and to access the NLRB's processes is unlawful. (359 N.L.R.B. slip op. 38, (Dec. 14, 2012) and see also Legal Update, Disclaimer in Mandatory Arbitration Policy for Nonunion Workers Failed to Make Policy Unambiguous About Section 7 Rights: NLRB.)

Hispanics United of Buffalo, Inc. In this case, the Board majority found that the employer violated the NLRA by firing five employees for comments they posted on Facebook after learning a co-worker criticized their work performance. Member Hayes dissented stating the Facebook exchange was nothing more than griping around the "virtual water cooler." He argued that while the exchange was concerted (in the sense that it was group activity), it was not undertaken for the mutual aid and protection of the employees involved. (359 N.L.R.B. slip op. 37, (Dec. 14, 2012) and see also Legal Update, Employees' Facebook Posts about Coworker's Job Performance Criticisms was Protected Concerted Activity: Facebook Firings Unlawful: NLRB.)

Nurses and Allied Professionals (Kent Hospital). In this case, the Board majority held that unions may charge Beck objectors (bargaining unit employees who object to union dues being withdrawn from their pay to be used for certain union expenses) for lobbying expenses in some circumstances. In dissent, Member Hayes argued that the union improperly charged the Beck objectors for lobbying activities that were not so related to the union's representational duties to employees as to justify their compelled financial support of them. (359 N.L.R.B. slip op. 42, (Dec. 14, 2012).)

Flex Frac Logistics, LLC. In this case, the Board majority held that a confidentiality agreement that prohibited employees from, among other things, disclosing personnel information and documents to persons outside the organization was unlawfully overbroad in violation of the NLRA. The majority found that employees would reasonably construe this language as prohibiting them from discussing their wages and other terms and conditions of work with non-employees such as union representatives. In dissent, Board Member Hayes criticized the majority for cherry picking words or phrases in isolation thereby failing to read the entire rule in context and with appropriate consideration of its obvious legitimate business justifications, which included ensuring that the employer could bid for contracts without its competitors discovering its cost structure. (358 N.L.R.B. slip op. 127, (Sept. 11, 2012), enforced by 746 F.3d 205 (5th Cir. 2014) and see also Legal Update, Confidentiality Policy That Can Reasonably Be Interpreted To Restrict Discussion of Wages Violates NLRA: Fifth Circuit.)

Guide Dogs for the Blind. While Noel Canning does not impact Specialty Healthcare & Rehabilitation Center of Mobile (357 NL.R.B. slip op. 83, (Aug. 26, 2011)), it does impact several decisions relying on it, including Guide Dogs for the Blind, because the Board used the Specialty Healthcare ruling to affirm a micro-unit. The Board affirmed an NLRB regional director's Decision and Direction of Election finding the petitioned-for bargaining unit of canine welfare technicians and instructors was appropriate because they shared a substantial community of interest. The employer argued that the smallest appropriate unit needed to include employees from five additional departments, including breeding, puppy-raising, kennel, admissions and graduate services and veterinary. The Board found that the employer had not met its burden under Specialty Healthcare of demonstrating those employees shared an overwhelming community of interest with the petitioned-for employees, so as to require their inclusion in the unit. (359 N.L.R.B. slip op. 151, (July 3, 2013).) For information about Specialty Healthcare, see Legal Update, NLRB Changes Standard for Determining an Appropriate Bargaining Unit.