There has been much crowing and breaking-out-of-champagne on the management side over the recent case saying President Obama's recess appointments to the NLRB were unconstitutional.
The case applies to that one NLRB matter and that one only. Other NLRB cases that have pending appeals may get similar decisions, or they may not. Right now, NLRB is proceeding as normal, until a court rules otherwise.The Supreme Court has declined to take the issue up, so the decision won't have a wide-ranging impact yet. Business lobbyists want employers to appeal all NLRB decisions they don't like so they can benefit from the decision.
Employers may now think it's safe to fire employees for objecting to working conditions on Facebook and other social media. They may also get excited about the possibility that some of the other recent decisions on key issues may disappear. They're wrong.
As to the Facebook firing cases, the first one came
down in 2011. That means the case is likely completely unaffected by the court decision, as is the NLRB’s stance that employees cannot be fired for discussing working conditions on Facebook and in other social media.
Companies who decide the law no longer applies to them do so at their own risk. The President will eventually appoint NLRB members successfully. In the meantime, the agency itself continues its investigation and decision-making process. Some recent decisions about confidentiality of investigations, at-will policies and arbitration agreements might be affected, but they might not.
What it really means is that Republican Senators who hold up the President's appointments to the Board for spite will cause cases to pile up. Staff at NLRB are still busy processing cases. Those that move up to the Board level will find that no hearings can be held. Our tax dollars are being used to backlog an agency that usually moves quickly, and whose decisions benefit both employers and employees, depending on the case. If a union engages in unfair practices, how will aggrieved employers get relief under this new genius gridlock plan? They won't, that's how. When the Board is finally back up to quorum, they'll have to work with rocket speed to catch up, meaning they'll need extra staff to help them process cases.
In the meantime, employers shouldn't celebrate too much. The Board will be back.
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