The National Labor Relations Board ("NLRB") recently ruled in Target Corp., 359 NLRB No. 103 (Apr. 26, 2013), that Target Corporation maintained policies in violation of the National Labor Relations Act ("NLRA"). The case arose after a union challenged the election results after it lost an organizing drive to unionize Target employees in a New York store. The NLRB found that Target had engaged in unlawful election activity, and it also scrutinized Target's policies and found overbroad information security, dress code and access policies. In addition, the NLRB found Target's no-solicitation and no-distribution policy overbroad because it prohibited certain activity, including "commercial" solicitation, at all times on Target premises. As a result of the unlawful policies, the NLRB required Target to distribute revised policies and post an NLRB notice relating to the violations in all its stores nationwide.
The NLRB also rejected Target's argument that the NLRB lacked the authority to rule based on Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), in which the United States Court of Appeals for the D.C. Circuit found the NLRB lacks a quorum because the President's recess appointments were constitutionally invalid. The NLRB held that until the issue is definitively settled through litigation, it must fulfill its responsibility under the NLRA to act.
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