The 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
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.
For 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.
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.
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.
Wilson 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.
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.