Supreme Court to Decide NLRB Recess Appointment Issue
Michael G. Trachtman |
How Will You Be Affected?
On January 4, 2012, President Obama made three highly controversial “recess appointments” to the National Labor Relations Board, an administrative agency that can have a profound effect on both union and (contrary to a widely held belief) non-union workplaces. The Supreme Court just decided to determine if these recess appointments are valid – and the result could have a profound effect on how employers will be required to manage their workplaces.
For decades, both Republican and Democratic administrations have routinely made these kinds of “recess appointments” of government officials – that is, appointments when the Senate is in recess – as a way to circumvent the Senate approval process, claiming that they had the authority to do so based on some vague constitutional language. (President Obama has actually made far less of these kinds of appointments than his most recent predecessors.) But President Obama’s NLRB appointments proved particularly controversial. All were lifelong union adherents, and shortly after being appointed, they began to issue pro-union rulings that many in the business community found to be intolerable and, in some cases, unlawful.
For example, you may recall the edict requiring companies to place a “how to unionize” poster in the workplace – a requirement that was recently struck down by the courts. More recently, the NLRB has issued a series of puzzling and contentious rulings finding both union and non-union employers liable for “unfair labor practices” for disciplining employees who complained about their employers in public social media forums, such as Facebook and Twitter. The NLRB appointees reasoned that employees are permitted by law to discuss their working conditions among themselves in order to consider their workplace options and strategies – so-called “Section 7” rights — and that the prohibition of these kinds of social media postings could infringe on those rights. But in these rulings, the NLRB inexplicably ignored the fact that Internet postings are not the functional equivalent of employee discussions, and can be seen by competitors, potential employees and customers.
The scope of these NLRB rulings have even gone so far as label as unlawful employer policies that prohibit the dissemination of confidential information (like employee compensation), and that require employees to behave in a “civil manner,” since such policies might inhibit employee discussions and compromise their Section 7 entitlements. It is no exaggeration to conclude that these NLRB appointees have sought to reshape some of the fundamentals of workplace law.
Enter the courts … Earlier this year, in a hotly contested and very significant ruling, the D.C. Circuit Court, an appeals court just below the Supreme Court, invalidated these recess appointments, finding that they unconstitutional. That raised an obvious issue: if the NLRB members who issued these rulings were not properly appointed, do their rulings have any legal effect? The upshot has been a legal maelstrom of competing claims. The NLRB has continued to issue rulings as if no court ruling had been issued. Employers who face NLRB scrutiny have taken the position that, being comprised of unlawful appointees, the NLRB has no power to make its decisions. President Obama has appointed a slate of replacement NLRB members but, no surprise, the Senate has not yet taken a confirmation vote, and the process remains in an incomprehensible limbo.
On June 24, the Supreme Court agreed to wade in to this legal and governmental morass. It is expected that the Supreme Court will decide, once and for all, when the Constitution allows a President to make a recess appointment. In the process, the Court will likely determine whether the NLRB’s recess-appointed members were or were not properly appointed, and if not properly appointed, whether their prior decisions have any legal effect. The Supreme Court’s ruling is not expected until 2014 – until then (and maybe even thereafter), virtually anything and everything to do with the NLRB remains in a legal tizzy.
In the meantime, the key for employers stuck in NLRB proceedings will be to preserve their right to contend that the NLRB as presently constituted has no authority to proceed. That does not add much to the need for legal certainty that businesses require but, for what it may be worth, this unseemly chapter in our labor law seems to be stumbling toward a conclusion.
[author] [author_image timthumb=’on’]https://meainfo.org/app/uploads/2014/10/michael-trachtman.jpg[/author_image] [author_info]Michael G. TrachtmanBusiness Attorney and MEA General CounselPowell Trachtman Logan Carrle & Lombardo P.C.[/author_info] [/author]