Over the past several months (ok, years really) the NLRB has become a source of pain for many small business owners and managers. After the failure of “Card Check” legislation in Congress, the NLRB took on the crusade to incorporate many of the concepts from the Card Check legislation into individual policies.
And without much success…
In January, the DC Court of Appeals ruled that President Obama violated the Constitution when he bypassed the Senate to fill NLRB vacancies on the board with new nominations. The case was overturned primarily due to the argument One if the Senate was in recess or not. This case led to even bigger issues – other recess appointments occurred, including the Consumer Finance Protection Bureau, which allows any decision made during these “illegal” appointments to be challenged, even reversed.
The Coalition for a Democratic Workplace (CDW) has been encouraging its membership (trade associations, small businesses, etc.) to ask their employers to challenge decisions made since January 2012. Starbucks, Time Warner, Lab Corp, and others have taken up this challenge, which in many cases, included hefty fines for back-pay or wrongfully terminating employees.
The employer community heard there wouldn’t be much of a battle, and the NLRB would continue to do business as is. President Obama did in fact re-nominate the exact same candidates shortly after the ruling came out.. Additionally, on Tuesday, the NLRB issued a statement saying that they were skipping a repeal process in the Noel Canning v. NLRB case, and will go directly to the Supreme Court. This petition must be filed by April 25, 2013.
With so many potential solutions – re-nominating candidates, repealing a court decision, introduced legislation and more – what employers will actually be held accountable for is one of the greatest unknowns out there.
Stay tuned for more on this issue.