On July 30th the U.S. Senate moved to avoid what is known as the “nuclear option.” This is a political maneuver that refers to voting procedures the details of which are not really important here. What it resulted in was an agreement by the Republicans to not block Presidential appointees in the confirmation process. Several of these appointees were the ones that made up the National Labor Relations Board, thus resulting in a complete board for the first time in a dozen years. My question then is what does having a full NLRB mean for employers now?
The National Labor Relations Board has been in the news quite a bit in the last three or four years rendering decisions that impacted how employers deal with social media use in the workplace, language in employee handbooks and confidentiality statements. Many of their decisions were considered controversial by employers. This declaration stemmed from the fact that many of the board members were “recess appointees” made President Obama during a period when the Senate was not actually in an official recess. To offset these decisions lawsuits were filed, and prime among these was one that declared that these decisions were made by an illegal and unconstitutional Board. The reason for this is that the law requires that a quorum vote on decisions and with some appointees being “illegal” then the decisions were considered by many to be null and void.
On April 15, 2013 I wrote Why the NLRB Nominees Are Unlikely to Get Approved which gives a more complete explanation if you are interested. At that time the “nuclear option” was not on the table. But now that we have a complete board what happens to all those decisions that were made by the illegal board?
One possible course of action is that the new board will rubber stamp approve all of the previous decisions. That would mean all the rulings about social media and Section 7 language inclusions will stand as they are and employers will definitely have to abide by them. However, there has been another wrinkle introduced into the mix. The Supreme Court has agreed to review the constitutionality question of the previous board. According to Alejandra Cancino of the Chicago Tribune “The issue stems from an appellate court ruling in January that presidential appointments to the NLRB in 2012 were unconstitutional because they were made during a short Senate recess. In June, the U.S. Supreme Court agreed to review the lower court’s decision at the request of the Obama administration.” This move has changed what this new, complete board is expected to do.
Many experts now think that the new board will only make decisions and rulings on cases going forward while the constitutionality of the 2012 board is under review. They feel there will not be a rubber stamp process until the Supreme Court renders a decision. If the SCOTUS determines that the previous decisions were made by an illegal board then at that time a review of previous decisions might be undertaken. If the SCOTUS does not make a decision or says the decisions made by the 2012 Board can stand then we are back to square one.
What employers should do
In my opinion I feel it is just a matter of time before the Democratic member controlled board gets to where is wanted to be in 2012. Even if the SCOTUS declares those 2012 rulings to be null and void this current board will go back and approve them. After all the members now are the former appointees that made the decisions. So employers need to understand and be prepared to comply with the rulings of the board. You need to be prepared to put statements in you “at-will” policies that specifically reference employees Section 7 rights. You need to make sure that confidentiality statements, social media policies and dress codes are not overly broad and prohibit rights that are available to employees under Section 7 of the NLRA.
Here are some of my previous posts that discuss some of these points.
The NLRB Hinders Confidentiality in Nonunion Companies
Social Media Use and the NLRB Again
Ban them All or Ban No One: The NLRB at it Again