Supreme Court Sends Hundreds of NLRB Cases Back to the Drawing Board


Hundreds of decisions issued by the National Labor Relations Board (NLRB) must be re-decided after the U.S. Supreme Court's recent ruling that President Obama did not have the authority to appoint three members of the board in 2012 during a brief Senate break.

At issue in the case is the U.S. Constitution's recess-appointments clause, which allows the president to legally appoint government officials without Senate approval during congressional recesses in an effort to ensure the government keeps functioning.

In 2012, however, President Obama appointed three individuals to the NLRB — without Senate approval — when the Senate was meeting in "pro forma" sessions (brief meetings, sometimes only a few minutes long) over a span of three days. In examining the meaning and scope of the clause, the Supreme Court determined that three days is not long enough to qualify as a recess. Consequently, since the Senate’s pro forma sessions counted as legitimate sessions, the president was not authorized to make the recess appointments at issue.

The NLRB will now have to revisit each case on which the appointees ruled, despite the fact that many of the decisions have likely already been implemented and would either be difficult to undo, or not worthwhile for the parties to challenge. The bulk of those decisions is not controversial and will not widely impact anyone outside the individuals and companies involved.

A few, however, could have significant implications for labor and employment laws and policies, such as a decision protecting employees from retaliation for complaining about working conditions on social media sites.

Other decisions allowed unions more authority to seek information in employee-discipline cases and reduced the burden on unions with respect to the kind of financial information they must provide to those who object to being members.

Despite some uncertainty surrounding the possibility that a fresh perspective could produce different results, many expect the cases to be re-decided with similar outcomes given that both the current board and the one that issued the original opinions consisted of Democratic majorities.

It is the additional workload however, that will most likely have the largest impact by delaying other NLRB initiatives and expanding its case backlog.

Given that the NLRB's enforcement of the National Labor Relations Act (NLRA) entails scrutiny of workplace policies, it is important that employers are up to date with NLRB developments. The NLRA prohibits employer policies that potentially "interfere with, restrain or coerce employees in the exercise of the rights guaranteed in Section 7" to engage in a wide range of protected, "concerted activity." NLRA violations have been found in policies requiring that employees follow certain grievance procedures that restrict employees from making negative statements about an employer and prohibit employees from soliciting union information or distributing it to other employees. Social media and email policies are also the targets of greater NLRB scrutiny.

Given the labor board’s inclination to broadly interpret the NLRA's provisions, employers need to take steps to ensure their policies are in line with recent decisions.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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