Back in February 2013, I wrote about an appellate court that ruled that President Obama’s appointments to the National Labor Relations Board (NLRB) were unconstitutional. That case was appealed to the United States Supreme Court, and on June 26, 2014, the Supreme Court issued its decision in the case of National Labor Relations Board v. Noel Canning. In a unanimous decision, the US Supreme Court held that President Obama did not have authority when he appointed three members to the NLRB on January 4, 2012.
While I could go into quite a bit of legal analysis of the Supreme Court’s decision, I’ll spare you the details. Instead, I’ll focus on the possible implications the decision may have on social media and employment law. To put all this in context, however, a short explanation of the constitutional issue in this case is necessary.
What the Case Is About:
A fully staffed NLRB consists of at least five members. In late 2011, there appeared to be the possibility of 3 vacancies on the NLRB, and thus, the NLRB would not have a quorum to issue decisions and conduct its work. During a three-day Senate recess, President Obama appointed three members to the NLRB. The Supreme Court determined that the three-day recess was not an appropriate length of time to meet the requirements of the Recess Appointments Clause that generally gives the President the power to fill existing vacancies during recesses. Thus, the US Supreme Court found that President Obama did not have the authority under the Constitution to make the three appointments to the NLRB.
Though this is a short and quick nutshell of the case, the decision is quite a significant decision regarding constitutional law, and I encourage you to read the US Supreme Court decision on National Labor Relations Board v. Noel Canning.
How This Case Impacts Social Media and Employment Law:
1. The NLRB Will Review Approximately 1,000 Cases, Some Are Important Social Media Rulings
As a result of the US Supreme Court case, it is clear that the NLRB was not properly constituted from at least January 2012 to July 2013. Thus, it lacked authority, and therefore all acts of the NLRB are considered null and void. As a result, the new NLRB will need to revisit each and every case (approximately 1,000) the old NLRB decided during the subject time period. So, employers and employees involved in each of those cases will go through another round with the NLRB.
Thus, NLRB cases regarding employer terminations of employees for engaging in “protected concerted activities” by posting on social media, for example, will be re-reviewed. The NLRB’s decisions on these “Facebook Firing cases,” and what employers can and cannot do regarding social media in the workplace will all be revisited. And as you may recall, the NLRB was particularly active during this time period. While it is possible (maybe even likely) that the new NLRB will make the same determinations made by the former NLRB, it is not a guarantee, particularly since there are four new members (two of them Republican) on the NLRB.
2. The NLRB Won’t Be Able To Act On Its Agenda As Quickly As Before
While the NLRB’s review of cases decided between January 2012 and August 2013 may not result in much change in the actual decisions, the time and energy necessary to devote to this undertaking will have a ripple effect that may impact bigger picture issues. First, now the NLRB will deal with a greater backlog of cases than normal (the 1,000 old cases plus all the new ones it is processing now, or already in the queue). Indeed, in a very short statement, NLRB Chairman Mark Gaston Pearce announced that “The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”
Delays in case determination are generally favorable to employers and more difficult for employees to face. As a result, some employees who otherwise would have brought a claim to the NLRB may choose to go through a different forum if they believe their cases will be stuck in any backlog at the NLRB. This too is more good news for employers since, at least in the recent past, the NLRB has been very pro-employee during the Obama administration.
And, while the NLRB turns its attention to cases that need reconsideration, the NLRB’s ability to focus on its own agenda may be delayed. The NLRB has made no secret that it wishes to push forward with its pro-employee agenda, but now that push may be stalled a bit. This too is good news for employers, and a potential setback for employees. Furthermore, the complexion of the NLRB will also change over time, and it is not guaranteed that the generally pro-labor NLRB members will be replaced by others we are also pro-labor. For example, one NLRB member’s term will expire in December 2014, so this November’s election may make it more difficult (depending on the makeup of the Senate) for President Obama to fill the vacancy with another pro-labor member.
Have you or your business ever had a matter with the NLRB? Did your matter involve employee use of social media, or employer limitations on the use of social media? Was your matter concluded by the NLRB anytime between January 2012 and July 2013?
Information provided on this website is not legal advice, nor should you act on anything stated in this article without conferring with the Author or other legal counsel regarding your specific situation. No attorney-client relationship is created via this website.