Gibbons Law Alert
On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.
As predicted, the Supreme Court of the United States announced today that it will address the constitutionality of President Obama’s purported “recess” appointments of Members to the National Labor Relations Board. The Supreme Court’s decision, which could invalidate hundreds of Board decisions made during the past two years, is expected by July 2014.
On May 16, 2013, in NLRB v. New Vista Nursing & Rehab., a divided panel of the Court of Appeals for the Third Circuit joined the D.C. Circuit in holding that the Recess Appointment Clause of the Constitution allows the President to make “recess appointments” (that is, without the advice and consent of the Senate) only when the Senate is on a formal intersession recess, as opposed to an intra-session break. Both the Third Circuit’s decision and the D.C. Circuit’s recent decision in Canning v. NLRB (as elaborated upon in Nat’l Ass’n of Mfrs. v. NLRB) arise from actions taken by the National Labor Relations Board (the “Board” or the “NLRB”) some of whose members had been appointed during an intra-session break. To summarize: (1) at least three Board members must participate in a Board decision; (2) according to these courts, the Board has not had three validly-appointed Members since August 27, 2011; and (3) although the NLRB has had four sitting Members between April 5, 2010 and August 27, 2011, it has issued some three-Member decisions during this time wherein one decision-maker, Craig Becker, was arguably unconstitutionally-appointed, rendering those decisions invalid. Potentially hundreds of decisions by the Board over the past three years are at risk of being declared invalid.
On May 7, 2013, in Nat’l Ass’n of Mfrs. v. NLRB, the United States Court of Appeals for the District of Columbia decided that a rule implemented by the National Labor Relations Board (“Board” or “NLRB”) requiring most private sector employers to post a notice about workers’ rights to unionize was invalid. As previously reported, the Board issued the rule almost two years ago, and has repeatedly postponed its effective date pending the outcome of legal challenges to the rule by business groups.
Earlier this week, the National Labor Relations Board (the “Board” or the “NLRB”) announced it will petition the United States Supreme Court to review Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013). As previously reported, in Canning the Federal Court of Appeals for the District of Columbia held that three appointments of officers to the NLRB by President Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause.
Now well over a year ago, the National Labor Relations Board (the “Board” or “NLRB”) issued a rule requiring most private sector employers to post a notice of employee rights to unionize in their workplaces. The posting requirement was initially to take effect on November 14, 2011. The requirement was postponed, first, until January 31, 2012, and, then again, until April 30, 2012 in light of legal challenges to the rule. Prior to the April 2012 “effective date,” the NLRB announced that it would once again postpone the rule–this time indefinitely “until the legal issues are resolved.” As recently reported, the Board’s great laid plans may go further awry in light of a federal appellate court decision challenging the NLRB’s ability to take any further action until at least one more Board Member is lawfully appointed. For answers to questions regarding the posting, or the Boards’s current state of affairs, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.
In a groundbreaking opinion, the District of Columbia Court of Appeals has ruled that three appointments of officers to the National Labor Relations Board (the “Board” or the “NLRB”) by President Barrack Obama were unconstitutional because they lacked the “Advice and Consent” of the Senate and were not authorized by the Constitution’s so-called Recess Appointments Clause. As a result, the Court vacated the underlying Board decision that gave rise to the appeal, concluding that the NLRB had no authority to issue the decision because only two of its five members were validly appointed. Thus the Board lacked the quorum necessary for it to take action. The ruling has widespread implications for the NLRB as well as the President’s overall “recess appointment” powers.
Over the past two years, the National Labor Relations Board (the “Board”) has attacked various employment policies of union and non-union employers alike, ranging from social media policies to policies that establish protocol for employees to follow when responding to media inquiries. The Board also has been critical of at-will language commonly found in employee handbooks and policies used by employers throughout the country. In light of the Board’s recent actions, some employers–particularly non-union employers that have not historically focused on Board developments–have begun to reassess policy language that has long existed in their handbooks. Due to a recent administrative law judge (“ALJ”) decision, employers should add employment agreements to their list of employment practices to review and Board developments to watch in 2013.
In a recent decision, a NLRB administrative law judge (the “ALJ”) found three policies in the Dish Network’s nationally-distributed handbook unlawful: a social media policy, a policy that restricts contact with the media, and a policy that restricts contact with government agencies. While the challenge to the social media policy is nothing new, the decision serves as a reminder for union and non-union employers alike that no policy is safe from scrutiny by the National Labor Relations Board (the “Board” or the “NLRB”).
In light of recent guidance by the National Labor Relations Board (the “Board”), non-union employers should review the “at-will” language found in their handbooks (and many standalone policies) to make sure it does not constitute an unlawful waiver of an employee’s right to engage in union activity. By now, it should come as no surprise that the Board has an interest in non-union workplaces. From promoting a mandatory workplace posting requirement to challenging seemingly innocuous social media policies, the Board should be on the radar screen for all employers. Most recently, the Board has weighed in on at-will disclaimers found in most handbooks or manuals. Such disclaimers typically explain that the employment relationship is not a contractual one, and the employer or employee can end employment at any time for any reason so long as that reason is not unlawful.