NLRB Appointments: High Stakes for Workers and Employers
Big Business Lawmakers Aiming to Immobilize NLRB

With the expiration of National Labor Relations Board (NLRB) Member Craig Becker’s recess term at the end of this session of Congress, there is a high risk that the NLRB—left with only two members—will grind to a halt. The U.S. Supreme Court has ruled that the NLRB needs three members to exercise its authority, so unless the Senate moves swiftly to confirm President Obama’s recent nominees to the Board, employers and employees alike will be stuck in legal limbo. Unfortunately, despite the steep cost to everyday Americans and their employers, corporate-backed politicians in Congress have made it clear that shutting down the Board is precisely their goal.  

What would a Board shutdown mean for employers and employees?
There are several pending cases and cases expected to go before the Board that are of concern to employers and employees—both union and non-union. Without Board guidance on these issues, employers would be left vulnerable to potential legal challenges of their employment policies, while employees would be left not knowing what their rights are under the law.

• Social media communication: As frequent news coverage suggests, there is great employer interest in the social media cases that have come before the NLRB. All employees covered by the National Labor Relations Act (NLRA) have the right to join together in the workplace, so the NLRB is now addressing how these rights translate to the virtual world. While employees can’t demean their boss on Facebook as an individual gripe, there are instances where co-workers have the right to post messages on Facebook related to a work issue without being fired/subject to disciplinary action. Currently, the NLRB General Counsel’s office is sorting out these social media issues. Without a functioning Board, many of these questions will be left unanswered, leaving employers and employees stuck in legal limbo. 
  
  
• Rights to organize and collectively bargain: Two major cases are pending before the Board that address whether or not a classification of workers is covered by the law: New York University deals with graduate student employees, and BWI Taxi 7 Supershuttle DFW covers drivers who may or may not be independent contractors. Without rulings on these cases, shuttle bus drivers and graduate student employees across the country are left not knowing whether or not they have the right to form a union under the NLRA. Additionally, since the issue of who is an independent contractor versus an employee under the NLRA is a far-reaching question, many more workers beyond shuttle bus drivers could be impacted by a decision on BWI Taxi.
     
• Mandatory arbitration agreements: Mutual arbitration agreements contractually oblige parties to resolve employment disputes through binding arbitration rather than taking their disputes to court. One case pending before the Board, D.R. Horton, charges that enforcement of a mutual arbitration agreement by the employer denies employees’ rights to engage in concerted activity under the NLRA. Without a functioning Board to rule on the legality of these agreements, workplaces across the country are left in a legal gray area: Employers with these agreements are without an understanding of how they could be fashioned to accommodate employees’ concerted activity rights. Likewise, employees could be prevented from rightfully joining together to seek redress to workplace issues.

 
General concerns with a Board shutdown
In addition to the specific concerns raised in the above cases, it is also worth noting some of the Board’s more routine functions that would cease with a shutdown:

• If administrative law judge rulings on unfair labor practice cases are appealed, unlawfully fired employees could wait years before winning their jobs back or receiving backpay.
   
• The agency would be unable to seek an injunction from a federal court when an employer or union engages in certain violations of the law, such as when a company fires workers during an organizing campaign or a union engages in an illegal strike or boycott.
   
• If a group of employees votes to form a union, and the employer challenges the Regional Director’s decision that the employees are covered under the law, the employees could wait years before advancing into bargaining for a first contract. 

To speak with an expert on the NLRB, please contact Zoe Bridges-Curry at (202) 822-2127 x122 or by email at This e-mail address is being protected from spam bots, you need JavaScript enabled to view it .