Q&A with Adam Childers
Quroum issue casts doubt
on labor relations decisions
Q: I understand rulings by the National Labor Relations Board may be in limbo. Can you explain?
A: In Noel v. NLRB, the Court of Appeals for the District of Columbia considered whether three NLRB appointments by President Barack Obama violated the Recess Appointment Clause of the Constitution. Appointments to the NLRB ordinarily are made only after the Senate has had an opportunity to advise and consent. The Constitution makes exceptions for appointments that are made when the Senate is in recess. Obama appointed three members to the NLRB Jan. 4, 2012 — one day after the Senate had begun its session, but while it was on a legislative break. The court held that a legislative break is not a “recess,” and therefore the appointments were unconstitutional. The NLRB therefore did not have a quorum, and its decision was nullified. As a result of this ruling, many experts believe every other decision made by the NLRB since Jan. 4 may now be in limbo.
Q: What are some of the decisions in limbo?
A: Two of the biggest decisions now in doubt involve social media and “ambush elections.” Last September, the NLRB issued a ruling that gave broad protection to union and nonunion employees who use social media to engage in “concerted activities for the purpose of collective bargaining.” The ruling placed restrictions on how far employers can go when restricting employees from making negative comments about the company on social media. The NLRB ruling warned employers that social media policies that are too broadly crafted may impermissibly impede on an employee's right to free speech. In April, the NRLB issued a controversial rule concerning ambush elections, which allows union elections to be held within 14 days and limits the ability of employers to provide information concerning election issues, and which critics argue could deny employees access to critical information. The ambush election rule is likewise under attack because of a lack of quorum.
Q: How should employers proceed regarding NLRB rules?
A: The NLRB's chairman issued a statement disagreeing with the court's decision and announcing that the NLRB will continue to conduct its business as usual, which means that unless and until the Supreme Court weighs in and settles the issue of whether or not the NLRB has the authority to interpret and implement the National Labor Relations Act, employers must proceed as if all of the decisions still stand.
Q: When do you expect the Supreme Court to make a decision on this?
A: It is unclear at this point, but all indications are that it will be sooner rather than later. The five-member NLRB board is down to one member who was confirmed by the Senate. Two other members' appointments have been deemed invalid by the D.C. Circuit. The other two members resigned in July and December. So, the quorum issue is not going away soon, and the Supreme Court will probably have to intervene.
PAULA BURKES, BUSINESS WRITER