Alert: Recent NLRB appointments invalid, says D.C. Circuit Court of Appeals

The President didn’t have the power to appoint three people to the National Labor Relations Board on January 4, 2012, ruled the District of Columbia Circuit U.S. Court of Appeals. The court’s ruling throws serious doubt on the validity of recent Board decisions, many of which have been highly controversial.

The court determined that the Senate was technically still in session, so the U.S. Constitution’s provision permitting the President to make appointments without Senate consent during “the Recess” didn’t apply. Therefore only two out of the five people on the Board at the time were validly appointed (because they had been confirmed by the Senate). This means that the Board hasn’t had a quorum since at least January 3, 2012, when Board member Craig Becker’s appointment expired. In the eyes of the D.C. Circuit Court of Appeals, all of the Board’s decisions issued from at least that date through the present time are invalid (Noel Canning v. NLRB, D.C. Cir, Jan. 25, 2013).

Tips: The Board will certainly appeal this decision to the U.S. Supreme Court. The Board’s Chairman has issued a press release stating that the Board intends to keep operating. This may indicate that local Board offices outside the D.C. Circuit’s area of jurisdiction may continue to apply recent Board decisions as if nothing had happened, unless the Supreme Court steps into the fray. If the D.C. Circuit’s decision is eventually upheld, here’s a sampling of just a few of the Board decisions interpreting the National Labor Relations Act (NLRA) that we’ve reported on since January 4, 2012, that would be thrown on the trash heap:

• Employers must disclose witness statements to a union representing an employee who was disciplined for misconduct, unless the employer can show a legitimate and substantial need for confidentiality. The burden is on the employer to prove why it shouldn’t turn over the documents. This overrules Board precedent dating back to 1979 (American Baptist Homes of the West dba Piedmont Gardens, NLRB, Dec. 2012).

• A dues check-off clause (where the employer agrees to withhold union dues from an employee’s paycheck) now survives the expiration of a collective bargaining agreement. This overrules Board precedent dating back to 1962 (WKYC-TV, Inc, NLRB, Dec. 2012).

• If a union represents employees, but doesn’t yet have an agreement with the employer on how to handle disciplinary matters (e.g., through a grievance process), then employers must bargain with the union before imposing discipline. The Board found that the decision to discipline or terminate is no different than any other decision about wages, hours, or working conditions—which an employer generally must bargain over before changing (Alan Ritchey, Inc, NLRB, Dec. 2012).

• Employers who are found to have violated the NLRA and owe back pay to workers, must reimburse the workers for any additional tax liability they incur as a result of receiving the payments in a lump sum. Employers must also report all the wages to the Social Security Administration (Latino Express, Inc, NLRB, Dec., 2012).

• Facebook postings of coworkers who complained of a co-worker’s criticism of their work performance were protected under the NLRA (Hispanics United of Buffalo, Inc, NLRB, Dec., 2012).

• Prohibiting employees from leaving work during working hours without permission violates the NLRA because it could reasonably be interpreted by employees as forbidding them from striking, which they have the right to do under the NLRA (Ambassador Services, Inc., NLRB, Sept. 2012).

• An employer’s handbook policy barring employees from “bearing false witness” against the company was improper. The problem: while the employer only intended to stop employees from maliciously making false statements against the company, the policy did not narrowly define its reach. Employees may think that inadvertently false statements could result in their termination (TT&W Farm Products, Inc., NLRB, Sept. 2012).

• The NLRB struck down a rule prohibiting employees from posting statements that damage the company or any person’s reputation. The problem: the rule is likely to “chill” employee speech and stop them from engaging in protected concerted activity, which they are allowed to do under the NLRA (Costco Wholesale Club, NLRB, Sept. 2012).

• A hospital’s policy prohibiting off-duty employees from coming inside except for “hospital-related business” violated the National Labor Relations Act (NLRA), (Sodexo America, LLC, NLRB, July 2012).

• An employer’s policy of requiring witnesses in an investigation of employee misconduct to maintain confidentiality may violate the NLRA. Only under four circumstances may an employer legally prevent employees from discussing an investigation: if witnesses need protection; if evidence is in danger of being destroyed; if testimony is in danger of being fabricated; or if there is a need to prevent a cover up (Banner Health System, NLRB, July 2012).

Vigilant will continue to keep members informed as developments occur. If you have any specific questions, please contact your Vigilant staff representative for help.