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Issue link: https://read.dmtmag.com/i/108236
Separately, and more recently, legal wrangling has injected some uncertainty into past rulings of the NLRB, as well as the legitimacy of some of its board members. The court battle has thrown the board into a kind of "legal limbo," labor law experts said. The D.C. Circuit Court of Appeals ruled on January 25 that President Obama's recess appointments of three members to NLRB—made a year earlier, in January 2012—were invalid. As a result, some 300 decisions made while those members served on the board could be voided. The Obama administration is expected to appeal the court ruling, experts said, but no announcement had been made as of this writing. What are the implications for employers? That remains to be seen, according to Nagle. The NLRB over the past year issued some decisions that employers "really didn't like," Nagle said. These included a policy designed to restrict employers' authority to limit off-duty employees' access to the workplace. This, Nagle explained, would favor unions as it could allow off-duty employees access to the workplace to organize fellow workers. Another decision by the board limited employers' ability to restrict what their employees said about them on Facebook and via other social media. Another worry for employers had to do with the possible shortening of election spans; such a development would hamper management efforts to campaign against a union organizing effort, management advocates said. In all, Nagle said, the ruling could nullify "some very significant decisions" by the board that "benefited employees and unions at the expense of employers. All of those decisions are now in legal limbo." But, Nagle warned, the court didn't issue an order saying "everything the NLRB has done since January 2012 is unenforceable." For that reason, Nagle advised, "Until further notice, employers should continue to comply with the board's decisions from last year because they are still binding law." NLRB regional offices will continue to enforce those laws, Nagle added, and will continue to apply NLRB decisions from last year "unless and until they are ordered by a court not to." The board issued a statement after the federal appeals court ruling, saying that it would continue to function as usual. The disputed recess appointees were called upon to resign by some members of Congress. As of this writing they had not done so, nor responded to the demand. www.npnweb.com n NPN Magazine Nagle said that most of the NLRB's activity is not at the federal, but at the regional level, "and that's not going to change at all" as a result of the federal appeals court ruling. "If a bunch of employees decide they want to unionize and they file a petition for an election, the (relevant) regional office of the NLRB would still process that," Nagle said. Likewise, he said, if an employee anywhere were to file an unfair labor practices charge against their employer, the relevant regional office would handle it. "They would still receive that, they would still investigate," Nagle said. "If they thought there was merit they would issue a complaint." Administrative law judges continue to hearing cases, he added. Steven Wheeless, a labor law expert, said that one possible repercussion for employers, resulting from the NLRB's uncertain standing, is that the board "may accelerate its pace of issuing controversial, pro-union decisions to get them 'on the table,' and get the employer community desensitized to them before the Supreme Court potentially removes (the recess appointees) from their positions." Wheeless, a partner in the law firm Steptoe & Johnson, Washington D.C., represents unionized employers in collective bargaining, contract interpretation, and grievance/arbitration processing. "The ruling also means that the D.C. Circuit Court of Appeals will not enforce any of the board's recent decisions," Wheeless said. "However, other Circuit Courts may come to a different conclusion, and, of course, most employers do not have the financial wherewithal to appeal Board decisions, so they are stuck with what the Board does." In advising how employers should conduct themselves in the meantime, both Wheeless and Nagle employed sports metaphors. Wheeless said that, long before they are ever confronted with a union organizing campaign, employers should be taking steps to counter it. Employers should play "offense and defense," he said. On defense, "it boils down to inoculating the workforce and controlling union access to employees," Wheeless said. By "inoculating," Wheeless said, he meant "educating." "The conventional wisdom is, if I talk about unions to my employees they'll want to run off and join a union," Wheeless said. "The exact opposite is true." Non-union workers need to know "what unions are, and they need to know how unions drive a wedge between them and their management team," January/February 2013 27