In my almost two years of writing about workplace investigations from the employer’s perspective on this blog, I’ve developed a healthy cynicism towards the National Labor Relations Board (NLRB). Many of the experts I have interviewed for blog posts and articles - HR practitioners, investigators, employment lawyers - have expressed frustration at the power the NLRB holds over employers, dictating what sometimes seem to be unfair and even ridiculous rules that effectively restrict their abilities to protect their own, and their clients’, businesses.

NLRB Confidentiality Ruling

The most recent example of the NLRB’s long arm, which we have written about, talked about, and even conducted a webinar on, is the controversial ruling that an employer is not permitted to require employees involved in internal investigations to keep the details confidential, unless it can demonstrate a “legitimate business need” for confidentiality. Naturally, that business need would have to fall under certain criteria, and an employer would have to document this business need before instructing employees to keep an investigation confidential.

The ruling sparked some strong reactions. Phillip Wilson, author and President of the Labor Relations Institute, told me that the NLRB was “off its rocker”, a sentiment that was echoed by many of the other employment lawyers and human resources experts I talk to. Wilson accused the NLRB of making decisions that “fly in the face of both years of NLRB precedent and the realities of the modern workplace.”

A Powerless NLRB

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The feeling that the NLRB is out of touch with reality, seems to be widespread among US employers and their attorneys. Therefore, the DC Circuit’s opinion last Friday in Noel Canning v. NLRB, invalidating the President’s recess appointments to the NLRB, effectively making the NLRB powerless in some opinions, garnered much attention.

US Chamber of Commerce President and CEO, Thomas Donohue, issued a statement confirming the Chamber’s approval of the DC Circuit’s ruling that President Obama's recess appointments to the NLRB were unconstitutional, adding that the President's appointments placed a cloud of uncertainty over the agency and its work.

Rulings Nullified?

Writer Steven Greenhouse, in a New York Time article, wrote that:

The National Labor Relations Board has been thrown into a strange legal limbo — with the possibility that more than 300 of its decisions over the last year could be nullified …

By ruling that Mr. Obama's three recess appointments last January were illegal, the federal appeals court ruling, if upheld, would leave the board with just one member, short of the quorum needed to issue any rulings. If the Supreme Court were to uphold Friday’s ruling, issued by the United States Court of Appeals for the District of Columbia Circuit, it would mean that the labor board did not have a quorum since last January and that all its rulings since then should be nullified.

I'm not sure what this would mean for the controversial confidentiality ruling in particular, but it could certainly strip the NLRB of what seems to be an absolute power to make rulings that fly in the fact of logic and fairness.

A Canadian Perspective

Here in Ontario, we are going through some labor upheaval as the Ontario government wrestles with teachers unions after imposing two-year contracts on them. Teachers maintain that they had no say in the contracts, which have been forced on them without consultation. The controversial legislation curbed their bargaining rights, cut sick days from 20 to 11, froze wages for some teachers and ended the practice of unused sick-day payouts at retirement.

While the bill was recently repealed, its future is uncertain and the fight continues. I can’t help but wonder about the good that an impartial mediator (which the NLRB should ideally be) could have done in such a situation.

The NLRB is a necessary institution, with the power to negotiate a fair deal for all US employers and employees. But hubris breeds contempt, and I'm sure there are a lot of employers who would be happy to see the board lose its legs.