Employers take notice, as of August 12, the President’s appointments to the National Labor Relations Board (“NLRB”) have been confirmed by the Senate and sworn in. What does this mean? It means that for the first time in nearly a decade, all five seats on the NLRB are filled with confirmed members. More importantly it means that the Board’s authority to act, which has been in question for some time and has stymied the Board’s ability to effectuate its agenda, is no longer in question.

From here on out – at least until 2016 when only two of current Board members will still have time before their terms expire -- employers are no longer going to be able to challenge actions by the Board by arguing that it lacked a proper quorum and authority. Instead, employers will need to deal with the merits of any Board action head on.

How we got here:

The NLRB was created in 1935. It was created in an effort to promote bargaining between companies and unions on workers’ pay and other benefits granted under the National Labor Relations Act (“NLRA”). In 1937 the United States Supreme Court upheld the creation of the Board and its authority. Since then it has operated through a set of rules and procedures that begins at a regional level and works its way up to a five member Board; even though that authority to rule on cases has often been delegated to three members.

Typically, when the Board had a vacancy due to the expiration of a member’s term or a resignation, the President would nominate a replacement and the Senate would conduct a confirmation process. Because of political opposition towards the Board based on a belief that it was overly pro-union, however, the Board membership dropped back to only two confirmed members. In 2010, the United States Supreme Court ruled in the New Process Steel case, that if the Board membership drops below three members it could not Constitutionally exercise its duties.

Consequently, when the Board membership again dropped to two members back in January 2012, the Board was again about to lose its requisite quorum and authority to act. To avoid this, President Obama chose three new members for the Board on January 4. Because the Senate was not in session at the time, the appointees could only be established as temporary recess appointments. As such, under Article II of the Constitution, when the next term of the Senate ended and the three appointees were not confirmed, the authority of the President’s appointments also expired and the Board was effectively again left with only two members.

When the NLRB’s decision that the Noel Canning company had violated the NLRA was appealed to the D.C. Court of Appeals, it was concluded that the Board did not have the authority to act. More specifically, the Court found that President Obama’s January 4 appointments to the Board were not proper and the Board therefore did not have the three member quorum required for it to have the authority under the Constitution to act. That ruling set off a series of events that in part, lead up to the eventual standoff in the Senate. The Democrats threatened the so called “nuclear option” which involved certain changes to the Senate’s rules regarding confirmations if the appointments weren’t confirmed by the Republicans. As a compromise, the President ultimately made four new appointments to the Board that the Senate ultimately confirmed and the last of whom was sworn in on August 12, 2013.

Which brings us to where we are today:

The NLRB is now comprised of 3 democrats and 2 republicans. Not surprisingly, several of these Board members have had long careers or ties with the unions. Given that fact, employers should not expect that the Board’s agenda will change from what we have been seeing and hearing.

Items including the “poster rule” (the requirement that employers post the rights granted under Section 7 of the NLRA, in the workplace, so as to inform employees of their right to organize and bargain collectively); defining what workers are considered “supervisors” for union election purposes; efforts to expand the use of company email for solicitation of employees during a union election campaign; further expediting the union election process; reinstituting the applicability of the “Weingarten rights” to non-union employees; and the Board’s review of company policies affecting employee’s rights in the workplace (i.e. social media policies, confidentiality policies, etc.) regardless of whether the workplace is unionized, will likely continue as high priorities for this Board. Employers can further expect the Board to find other ways to breathe new life into the NLRA and take an active stance with regard to both union and non-unionized employers.

Employers who don’t know about the NLRA and/or the NLRB, need to take notice. All employers -- especially those in a state like Texas where employers have not traditionally concerned themselves with the NLRB -- need to prepare. They need to take steps to revise their workplace policies to ensure compliance or get ready to argue the merits of these issues.
The days when an employer could rely on a claim that the NLRB did not have the power or authority to institute and enforce their determinations and rulings because they did not have a quorum, are gone. For at least the foreseeable future, the Board has its quorum and therefore has the authority to carry out its duties. Duties which employers should expect to be carried out to the furthest limits of the Board’s legal authority and power.