The Fourth Circuit has now joined the D.C. Circuit in striking down the NLRB’s proposed notice posting rules. The Board sought to have all employers post notices in their workplace informing employees of their right to form and join unions, among other things. Our previous coverage of this controversial initiative can be found here.

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As all of us competing in the marketplace know, the last five to six years have been about preservation and survival. And while there are signs of improvement and recovery in some sectors, no one really thinks this economy is a sure bet yet.

While the economy is down, it’s easy to just focus on survival – and ignore other issues that might be just around the corner. Maintaining a union-free status is one such issue that can get lost in the shuffle. But, as things improve, the economic consequences of ignoring this issue can be severe.

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Since it was decided in January, the D.C. Circuit’s Noel Canning decision has been easy ammunition for employers to shoot at the NLRB in response to any adverse decision. As we previously reported, the NLRB’s response has been to effectively “put their fingers their ears” and refuse to recognize the ruling of the D.C. Circuit as controlling.

Most recently, the ability of the NLRB to act was challenged by the Respondent in Ampersand Publishing, LLC, 359 NLRB No. 127 (May 31, 2013). In response, the NLRB again “shooed” away the argument that the NLRB lacks a quorum.  In doing so, the Board relied upon the same rationale that it did in previous decisions, dismissed the legitimacy of the Noel Canning decision by arguing that it is still in litigation and no “definitive resolution” on the recess appointments issue has been reached.  However, in doing so, the Board completely ignored the more recent Third Circuit decision in New Vista Nursing that adopted much of the D.C. Circuit’s reasoning in Noel Canning and also found that the Board’s actions could be invalidated due to improper recess appointments.

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While much of the initial fervor related to Michigan passing right to work legislation has subsided, a lawsuit that could collaterally challenge the law silently proceeds. As we previously reported, a lawsuit was filed under Michigan’s Open Meetings Act to challenge the process used by the Michigan’s Legislature to pass the controversial legislation. In January, the ACLU stepped in to litigate on behalf of the groups challenging the law.

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An NLRB Administrative Law Judge has determined that the confidentiality-related policies of the American Red Cross were overbroad and could be read to chill the exercise of employee rights under the National Labor Relations Act.

The ALJ’s decision in American Red Cross Blood Services, Case No. 08-CA-090132, underscores two key points:  (1) handbooks, codes of conduct and independent confidentiality agreements with personnel will be read together to discern the intent behind polices and whether restrictions on dissemination of confidential information are sufficiently narrowly tailored to prevent the chilling of Section 7 rights; and (2) despite the Board’s initial indication that savings clauses might help, this ALJ found no savings in the savings clause.

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An associate in a small law firm in Alabama has been found by an NLRB administrative law judge to meet the statutory definition of a supervisor under the National Labor Relations Act and, as a result, her termination by the firm did not violate the Act.

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Indiana Operators Local 150 is appealing the recent dismissal of its challenge to Indiana's Right-to-Work law to the Seventh Circuit and asserting that the law is preempted by the National Labor Relations Act and the U.S. Constitution's protections on free speech. The Union's preemption argument incorporates the common "free rider" argument, specifically contending that:

“The Indiana Right to Work law burdens union members and the union itself by requiring them to bear the full cost  of representing 'free riders,' which in turn diverts union resources away from voluntary First Amendment activity…”

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The Senate took a step closer to confirming five nominees to the NLRB this week when the Health, Education, Labor, and Pensions Committee (HELP) Committee voted to recommend that the full Senate confirm the nominations of Democrats (and current Board members) Mark Gaston Pearce, Richard F. Griffin, and Sharon Block and Republicans Harry I. Johnson and Philip A. Miscimarra. Two of the nominees, Richard Griffin and Sharon Block, were opposed by Republican members of the Committee because their current recess appointments to the NLRB have been invalidated by the D.C. Circuit’s Noel Canning decision.

The Obama Administration has pushed to get the bipartisan slate of nominees confirmed in an attempt to end the continuing effect of Noel Canning (which was bolstered by the recent New Vista Nursing decision) which continues to put in jeopardy all decisions made by the Board with the participation of the disputed recess appointees. It is unclear when the Senate would vote on the current nominees.

Our full coverage of the recess appointments issue is available here.

Can you imagine an issue that Speaker of the House John Boehner and the President of the UFCW agree on? Well, we may have found it and you’d be surprised what it is - Obamacare!

There’s an interesting article today in The Hill reporting on how several unions – the United Food and Commercial Workers International Union, UNITE HERE, the Teamsters and the United Union of Roofers, Waterproofers and Allied Workers – are all now complaining about how the Affordable Care Act is being rolled out.

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The National Labor Relations Board (NLRB) has posted a summary of decisions for the week of May 6-10, 2013 on their website. The summary can be accessed by visiting the NLRB's website here or by clicking on the link below.

National Labor Relations Baord: Summary of Decisions - May 6-10, 2013.