U.S. Senator Lamar Alexander, (R-TN), has called upon two members of the National Labor Relations Board "to resign immediately, pack their bags and go home" after a federal appellate court ruled their presidential "recess" appointments were illegal.
On January 25, the U.S. Court of Appeals in Washington D.C. struck down President Obama's recess appointments leaving the NLRB without a legal quorum and calling into question all of the labor board's 219 decisions last year. The decision was made in the matter of Noel Canning, a Division of Noel Corporation, Petitioner v. NLRB, Respondent and the International Brotherhood of Teamsters Local 760, Intervenor.
The three-judge panel ruled that President Obama improperly claimed to have made a recess appointment of Democrats Richard Griffin and Sharon Block and Republican Terence Flynn a year ago. Flynn resigned later in the year, but Griffin and Block have remained on the board.
The court said the Senate, which previously balked at approving the president's NLRB nominations, was not actually in recess in January 2012 as Obama claimed when he made the NLRB appointments without Senate confirmation. Senator Alexander claimed those decisions are no longer binding - "All of these are invalid because two of the member on the NLRB were unconstitutionally appointed."
The NLRB chairman, Mark Gaston Pearce, said the labor board will continue to meet and issue opinions. But Alexander said the NLRB board cannot issue binding decisions after the court ruling.
The logic of the ruling may well affect a significant portion of the tenure of Craig Becker, which includes a regulation that would replace decades of practice in union-recognition elections with "ambush" elections that deprive employees and employers the opportunity to have a fair discussion.
On January 30, the Chamber of Commerce of U.S.A. and the Coalition for a Democratic Workplace filed the 28(j) motion in question as part of its ongoing litigation to block ambush elections. "Today's filing represents a second strong legal argument to overturn the unwise and unfair ambush elections regulation forced through by President Obama and Craig Becker," said CDW chairman Geoffrey Burr. "The impact on our nation's labor law could be even broader, as an application of the Court's recent recess appointment ruling could invalidate decisions going as far back as August 2011." It questions Becker's recess appointment on March 27, 2010 as unconstitutional which would affect the Board's election rules for quorum purposes adopted on December 16, 2011 as having been valid. CDW is an advocate for workplace democracy in the business community and represents over 600 associations, organizations, and businesses.
The CDW, along with ISPLA and other investigative and security professional associations, has been lobbying to protect the right to a federally supervised private ballot when workers are deciding whether or not to join a union. We are opposed to the so-called Employee Free Choice Act because it would strip Americans of that right and replace it with a system where one's vote is no longer private, and it is made public to the employer, the union organizers and to co-workers.
The NLRB has pushed forward labor's agenda to enact key portions of EFCA through executive action and regulation that would decrease the ability for employers to speak to employees and decrease the ability of employees to access information from both sides and make an informed choice, thus increasing the number of dues-paying union members.
The only way to guarantee worker protection from coercion and intimidation is through the continued use of a federally supervised private ballot election so that personal decisions about whether to join a union remain private.
Another NLRB decision of note was previously commented upon to just members of ISPLA in August 2012 concerning workplace imvestigations which may now be invalid. The NLRB's decision in Banner Health System prohibits an employer from requesting participating employees not discuss a workplace misconduct investigation until the employer has first determined there is a need for confidentiality based on one of four criteria. The otherwise common practice of instructing employees to keep an investigation confidential would be subject to only the following criteria:
Witnesses needing protection;
Evidence in danger of being destroyed;
Testimony in danger of being fabricated; or,
There is a need to prevent a cover-up.
After an October 31, 2011 administrative law judge's determination, the case was eventually heard before the NLRB. The above named sterile equipment technician was asked not to discuss the investigation with his co-workers. The employee filed an unfair labor practice charge against the hospital claiming that the request for confidentiality violated his right to discuss workplace conditions with other workers. The ALJ ruled in favor of the employer, after which the employee appealed to the NLRB, who determined that the hospital's "blanket approach" to the issue was over-broad and established the above prerequisites to what was heretofore a routine instruction in handling workplace investigations.
The ruling presented potential chilling effects on victims and witnesses as well as set limitations on an employer's ability to make accurate credibility determinations, conduct a focused investigation, and serve its self interest and that of its employees in curtailing workplace misconduct.
As long as the NLRB remains valid, employers (and our clients) need to review their policies and practices governing internal investigations for blanket instructions to employees regarding communication during an investigation. If a workplace investigation is to be commenced, the employer should first determined whether confidentiality is necessary. If so, it should be done in contemplation of the four factors noted above, and be documented in curtailing the risks of witness contamination, evidence tampering, spoliation of evidence, fabrication, and other concerns.
The Noel Canning Court of Appeals decision also has implications for the recess appointee Richard Corday, Chairman of the Consumer Financial Protection Bureau which has jurisdiction over the Fair Credit Reporting Act. Corday's name has now been put before the Senate for confirmation.
The 47-page opinion of the U.S. Court of Appeals in Washington, DC is available at:
ISPLA Director of Government Affairs
Your Proactive Voice from State Capitols to the Nation's Capitol
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