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.