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NLRB v. Noel Canning, Recess Appointments Found Invalid


NLRB logoThe Supreme Court issued its opinion in the Noel Canning case in late June. The Court found that three recess appointments made by President Obama during 2011 were ineffective because the President lacked the power to make the appointments. This is the first Supreme Court case interpreting the Recess Appointments Clause of the Constitution. In years past, there have been other executive branch appointments under the Clause.

The NLRB is comprised of five individuals, thus the invalidation of three of its members means that the Board did not have a sufficient quorum to act. The Court considered several aspects of how recesses occur and what authority exists under the Clause.

This decision raises a question involving the actions taken by the NLRB. Between early January 2012 and early August 2013, the time impacted by the decision, the NLRB issued hundreds of decisions and appointed several directors. The full extent of this opinion on the decisions previously rendered is yet to be seen, as many will be back before the NLRB for reconsideration.

Read the latest Wilson Worley employment newsletter: The National Labor Relations Board Revives its “Ambush” Election Rules

ImageSam Booher offers our most recent newsletter:

The National Labor Relations Board (“NLRB”) has once again proposed amendments to its rules that will further hinder the ability of businesses to defend against union organizing efforts. Those proposed amendments, commonly referred to as the “ambush election rules,” would allow union elections to be held in as little as 10 days after a union representation petition is accepted by NLRB. . . .

To read the full newsletter, click here.

Senate Confirms NLRB Appointments

NLRB logoFor the first time in ten years, the National Labor Relations Board has five board members who have been confirmed by the Senate.  In a July 31 press release, Chairman Pearce stated, “Yesterday’s votes in the Senate to confirm all five of President Obama’s nominees to the National Labor Relations Board will revitalize our commitment to protect the rights of American employers and employees under the National Labor Relations Act.”  The full press release is available on the NLRB website by following this link.  The board is made up of three members of the administration’s party.  With Senate endorsement, the board is expected to conduct rulemaking activity and begin releasing new decisions.

Remember that actions by the NLRB often affect nonunion workplaces as well as union shops.

What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies, Part 2

Confidentiality Policy

The NLRB found a confidentiality policy to be overbroad.  While employers have a legitimate, business interest in restricting the improper disclosure of propriety information, a policy may violate Section 7 if confidential information is defined too broadly.  This violation could happen if the definition prevented an employee from discussing the terms or conditions of employment.  For example, a prohibition against disclosing personnel information to any person outside the business when the employee could face legal action or firing may be too broad because is prohibits employees from talking about their own personal wages or job conditions.

At-Will Policy

Tennessee is an at-will employment state.  Many employers adopt policies making clear that employees are working at-will.  The NLRB ruled that policy language saying that the at-will employment relationship cannot be modified or altered would violate the NLRA because employees may request to change at-will status.  The NLRB Acting General Counsel then released Advice Memoranda reviewing at-will employment clauses from two employee handbooks, noting that both were lawful under the NLRA.

Policy impacting use of Social Media

Whether in the context of harassment, bullying, social media, or communications, policies that restrict comments made on social media could arguably have a chilling effect on an employee’s Section 7 rights.  Policies that have zero tolerance language are ripe for concern.  Comments or communications by the employee may constitute concerted activity if they are for the purpose of mutual aid or protection.  If the comments are made as a step toward group action to defend workers, then the action may be protected.

Policy restricting Negative or Adverse Comments

A policy that restricts employees from making statements that purportedly damage the business, defame another individual, or damage another person’s reputation may be considered overbroad because it could prevent an employee from engaging in protected communications critical of the employer or its representatives.  Policies against malicious, abusive, or unlawful behavior are not objectionable.

What You Need to Know About NLRB Actions in 2012 on Common Employee Handbook Policies

POLICY MANUALEven though the NLRB is currently under fire and courts are striking down its rulings made after the recess appointments, it may still be useful to consider the rulings related to employment policies.  The NLRB was very active last year reviewing policies from employee handbooks.  Many of these policies had been utilized without question by employers for years.   The basis for the scrutiny has been that some of these policies interfere with rights to protected concerted activity under Section 7 of the NLRA.  These considerations are important because Section 7 does not apply merely to union workplaces.

Section 7 of the NLRA, in effect since 1935, offers employees the right to engage in protected concerted activity for their mutual aid or protection concerning the terms and conditions of their employment.  An employee may prove a violation by establishing:

  1. Employees would reasonably construe the language to prohibit protected activity;
  2. The rule was created in response to union activity; or
  3. The rule has been applied to restrict the exercise of protected rights.

In 2012, the NLRB called these types of policies into question:

  1. Confidentiality Policy;
  2. At-Will Policy;
  3. Policy impacting use of Social Media
  4. Policy restricting Negative or Adverse Comments.

My next post will discuss the issues raised about these four categories of policies.

Wilson Worley Employment Newsletter Available

WWMGS-logo-4Wilson Worley employment attorney Sam Booher covers several topics in the April 2013 newsletter:  (1)  The proposed Fair Minimum Wage Act of 2013;  (2)  Request for Supreme Court review of the ruling that invalidated recess appointments to the NLRB; and  (3)   Yahoo’s decision to discontinue allowing employees to work from home.  Click here to read the full newsletter.


New Wilson Worley newsletter available on ruling involving NLRB

WWMGS-logo-4Wilson Worley attorney Sam Booher summarizes the recent federal court opinion regarding the NLRB.  For the full newsletter, click here:  President Obama’s NLRB Recess Appointments Invalidated, NLRB Moving Forward With Business As Usual.

Court Invalidates NLRB Recess Appointments

An appellate federal court struck down Presidential appointments to the National Labor Relations Board in an opinion released this week.  The case may now move to the Supreme Court.  The court found that the recess appointments used by President Obama while Congress was in recess violated the Constitution.  The appointments had been made after inaction by congressional Republicans blocked nominees that had been presented for consideration.  Long-term implications for the President and the NLRB are unclear.  While we await appeal, the NLRB is left with one serving member and the status of recent rulings, which have been the subject of many business and legal discussions, are now in question and vulnerable to challenge.

NLRB Concerted Activity Map

The NLRB has added a new interaction map to its website that has pushpins allowing visitors to read about recent Board activity related to protected concerted activity.

The Board says, “If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court. Recent cases involving a range of industries and employees are highlighted on the map below; please hover over a pin for a summary or click and the full story will appear below.”

Here is a link to the map:

NLRB Poster Requirement On Hold

A federal court in Washington has issued an injunction delaying the date on which employers must post a notice of employee rights under the NLRA.  The final rule requiring the posting was slated to take effect on April 30, 2012, but has now been postponed indefinitely pending briefing and argument, with argument expected in September.  Due to conflicting federal court opinions regarding the final rule, the court issued the injunction.  The NLRB has instructed its regional offices to comply with the injunction.