The fact that it's being appealed doesn't negate the existence of a prior ruling, and your act of parroting does not make you a parrot. Finally, yes, the NLRB

The fact that it's being appealed doesn't negate the existence of a prior ruling, and your act of parroting does not make you a parrot. Finally, yes, the NLRB has exactly that authority, including determining the standard to be used to make the distinction, no matter how many times you baselessly and falsely claim otherwise. Your confidence in facts and reality is commendable, but your grasp of those terms may not be as strong as you assume.