In late June the U.S. Supreme Court issued many decisions. One of those dealt with a question that had been open for several years. In January of 2010 President Obama made some recess appointments to the National Labor Relations Board. There was a hue and cry that the President exceeded his authority in making these appointments. The SCOTUS has answered that question.
For those of you not familiar with the National Labor Relations Board you may not understand the impact of this decision, especially if you are a non-union company. The National Labor Relations Board (NLRB) is the governing body that oversees the National Labor Relations Act (NLRA). This is the law passed in 1935 that gives most employees (managers, supervisor and HR excluded) the right to work together to improve their working conditions, wages and hours. They can form a union, solicit the help of a union or negotiate on their own. The law prohibits employers from interfering with this right. The NLRB oversees the cases that people have brought claiming their rights have been interfered with.
The NLRB make-up is based on which political party controls the White House. There are five members, three from the controlling party and two from the non-controlling party. Currently, since we have a Democrat in the White House, the NLRB is controlled by members associated with the Democrat Party. Democrats are historically supportive of union efforts thus the current NLRB makes decisions that are on whole more favorable to union positions.
The NLRB has, under the current administration, expanded the reach of the NLRA by taking on cases that deal with social media, employment-at-will, and confidentiality and have also expanded and loosened the view of what falls into “protected, concerted activity” that is covered by the law.
The issue and outcome
The issue decided by the SCOTUS dealt with the constitutionality of the appointments made to the NLRB. There is a provision that allows the President to make appointments during a Senate recess. On January 4, 2012 the President appointed three members to the board. The SCOTUS ruled that the Senate did not officially go into recess thus he exceeded the powers granted to him under the Recess Appointments Clause. This voided those appointments and made them illegal. The impact of this is that all the decisions they made were also voided. This amounts to over 700 cases that have to be decided on again and included some major decisions that had an impact on many non-union companies.
The impact on employers
According to Frederick Warren of FordHarrison:
The Court’s decision today means the Board lacked a valid quorum when it issued over 700 decisions, a number of which will have to be reconsidered. Many of the Board’s decisions in 2012 were decided against employers and some were very high profile, including Costco Wholesale Corp., 358 NLRB No. 106 (Sep. 7, 2012), where the Board struck down an employer’s social media policy, and Banner Health System, 2012 NLRB LEXIS 466 (July 30, 2012), where the Board adopted a new approach, holding that an employer commits an unfair labor practice if it asks an employee, who is the subject of an internal investigation, to refrain from discussing the matter while the employer conducts its investigation.
Today there is a full board so many of the decisions that have to be reviewed will most likely be upheld, so employers still need to pay attention to how policies are worded and how they deal with social media actions by employers. But the backlog of cases that will have to be reviewed may slow down their actions on other issues that may have an impact on non-union and union employers. These include redefining who is a supervisor, the “quickie election” process and the use of arbitration in contract negotiations. That slowdown could have a bigger impact than we know.