Over the past several years, the National Labor Relations Board (“NLRB” or “Board”) has engaged in an aggressive campaign to extend its reach into non-union workplaces with the goal of facilitating unionization. In areas such as social media, employee confidentiality as to company investigations, and waivers of class arbitrations, the Board has attempted to expand its oversight under the rationale of protecting employees’ rights to engage in “concerted activity” under the National Labor Relations Act (“NLRA”). Over the past year, however, the Board has run into several judicial roadblocks in implementing its agenda:
On May 14, 2012, a federal district court in the District of Columbia held that the Board lacked the requisite authority when it adopted a rule designed to shorten the time for union representation elections – otherwise known as the “Quickie Election” rule. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012). U.S. District Judge James E. Boasberg concluded that the rule was invalid because less than three members of the statutorily-constituted five-member Board voted on the adoption of the final rule. (See BakerHostetler’s Executive Alert 5/15/2012).
On January 25, 2013, the United States Court of Appeals for the D.C. Circuit struck down President Obama’s “recess appointments” of three NLRB members as unconstitutional. Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013). By striking down the appointments, the court placed into question the legitimacy of numerous (mostly pro-union/employee) decisions issued during 2012. (See BakerHostetler’s Executive Alert 2/4/2013).
On May 7, 2013, the D.C. Circuit invalidated the Board’s 2011 rule requiring employers to post on their properties and websites a notice advising employees of their rights under the NLRA – including the right to unionize. National Ass’n of Mfrs. v. N.L.R.B., — F.3d —, 2013 WL 1876234 (D.C. Cir. May 7, 2013). Specifically, the court held that the notice-posting rule violated Section 8(c) of the NLRA, which prohibits the NLRB from finding employer speech that is not coercive to be an unfair labor practice or evidence of an unfair labor practice. (See BakerHostetler’s Executive Alert 5/14/2013).
Most recently, on June 14, 2013, the United States Court of Appeals for the Fourth Circuit also struck down the Board’s notice-posting rule. Chamber of Commerce of the United States v. N.L.R.B. — F.3d —, 2013 WL 2678592 (4th Cir. June 14, 2013). Taking a different tact than the D.C. Circuit, the Fourth Circuit ruled that the Board lacked the authority under the NLRA to issue the notice-posting rule since the purpose of the rule went beyond the Board’s two statutory duties of addressing unfair labor practice charges and conducting representation elections upon request. (See BakerHostetler’s Executive Alert 6/24/2013).
Despite these decisions, the Board remains committed to expanding its sphere of influence, issuing decisions on a regular basis regarding practices in which employers traditionally engaged without having to worry about the potential issuance of an unfair labor practice charge.
Given the current climate, employers (even those in non-union workplaces) should make sure to consult with their labor counsel as to their rights and obligations vis-à-vis recent Board pronouncements.