As I indicated a few weeks ago, one of the goals of this blog this year is to stop chasing headlines.   The latest story about the NLRB demonstrates why.

Photo courtesy of Library of Congress circa 1947

Late last month, the D.C. Circuit Court of Appeals (which, as you might imagine, only covers Washington D.C.) ruled that recess appointments to the NLRB were invalid, calling into question dozens of decisions by the NLRB.  The case, Canning v. NLRB, is not a light read; it’s nearly 50 pages long. 

(As an aside, this recess decision should not be confused with the Connecticut General Assembly’s attempt to have labor law taught in the schools, presumably after recess.)

Unfortunately, the first instinct of some employment law blogs was to treat this decision as some type of watershed moment in history without providing the context for private employers — particularly those without unions. 

A notable exception was a thoughtful post by the Employer Law Report which was quick to note that “since the various appeals courts are not bound to adopt each other’s opinions, the impact will depend on where the NLRB’s decisions are being challenged and how those courts rule.” 

For employers in Connecticut — which falls within the Second Circuit Court of Appeals, and not the D.C. Circuit — that means that the decision is notable, but not yet binding.

Indeed, the decision itself is hardly final.  The NLRB has indicated that it would appeal the decision (likely directly to the U.S. Supreme Court) and keep pursuing business as usual.

Thus, employers in Connecticut should pay little attention to the D.C. Circuit decision at this point.  Yes, the Supreme Court may ultimately invalidate some of the NLRB’s decisions, but the vast majority of private employers have never needed to pay much attention to the NLRB in the first place.

But what of the NLRB’s supposed growing influence in employers that don’t have a union? Again, that too seems overblown.

Unions — even in Connecticut — are waning in influence and numbers.  The latest statistics from the Bureau of Labor Statistics show that union membership in the state dropped a dramatic 16.8 percent in 2012.

The reasons for the decline are still being debated, but the numbers demonstrate that unions are losing their grip in the state. 

Ultimately, unions and the NLRB are going through a time of transition.  What will be the role for unions over the next decade? Will debated changes to election rules stop the declining membership rolls of unions? How will the economy shape the role of unions going forward? Will right-to-work rules (adopted in a growing number of states) ever make their way to Connecticut?  

All of these questions are more important, in my view, than the D.C. Circuit court’s opinion.  Unions are down and their influence is waning, but the future of unions lies not with one agency, but with how unions adapt to the challenges they currently face. 

And that story is still being written.

  • I think employers can choose to appeal to the DC Circuit, even if they’re not in DC:

    “Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.”29 U.S.C.A. § 160 (West)

  • tschranck

    Dan, I certainly agree with you about the waning influence of unions, but I respectfully suggest it would be mistake to ignore the D.C. Circuit’s opinion in Canning v. NLRB as “non-binding.”  Under the NLRA, an employer has an appeal of right to challenge NLRB orders in the D.C. Circuit, regardless of the geographic location of the employer or the origin of the charge.  Thus, if I was counseling a client facing an adverse order from the Board (because they didn’t call me first…), I would have to advise them of their right of appeal to the D.C. Circuit and note, under Canning, they would win in the D.C. Cir., whereas the Board wins I think something like 85% of appeals nationally.  Of course if a client does not want to pay the costs associated with such forum shopping that is their right, but we should be advising them of this strategy unless and until Canning is overturned.  Or am I missing something?

    • Agree. My overall point is merely that Canning has yet to be the “law of the land” by the Supreme Court and I fully expect that court to rule on it promptly upon appeal. And moreover, most employers don’t ever have to worry about the NLRB so the impact of Canning is overstated in my view.