Supreme Court to Decide Validity of NLRB Appointments

May 20, 2014

President Obama has asked the United States Supreme Court to reverse a lower court decision and hold that the President’s appointment of three members to the National Labor Relations Board (NLRB) was constitutional and proper.

These appointments took place in January, 2012 at a time when the Congress was in a recess between sessions of Congress but were not, under the Constitution on an official break between sessions of Congress. While it is hard to understand the distinction, the more important issue is that the National Labor Relations Board has lost its power to influence union/management activities because of the questions regarding the enforceability of any NLRB decision.

The NLRB under President Obama has been very active, especially in the area of enforcing employee rights to pursue unionizing or engaging in conduct that could lead to unionizing efforts. This is particularly noted in the area of social media where the NLRB has been very forceful in issuing decisions and legal guidance limiting the right of an employer to discipline an employee because of their postings on social media that are critical of the company. While there is a significant question regarding the enforceability of these decisions because of the lack of a majority of NLRB members, employers must still be sensitive to taking discipline against individuals because of their social media commentary.

Employers do not want to be scrutinized by the National Labor Relations Board even if there is a question regarding its ability to enforce an order against a company. The NLRB scrutiny could result in employees looking favorably upon union representation. To avoid this scrutiny, employers should be careful when considering discipline for social media commentary and give progressive warnings before making a decision to terminate an employee.

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