On March 21, 2017, the United States Supreme Court ruled that the National Labor Relations Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel.

By a 6 to 2 vote, the Justices affirmed an August 2015 decision by the D.C. Circuit, which found that Solomon improperly served as Acting General Counsel during the almost three-year period between January 2011 and late 2013 while his nomination for confirmation as  the Board’s General Counsel languished in the Republican-controlled Senate.  Ultimately, Obama withdrew Solomon’s nomination and put forward Richard F. Griffin, Jr., who was eventually confirmed on October 29, 2013.

Background

As we explained in our prior post, the position of NLRB General Counsel is just one of approximately 1,200 senior level positions within the federal government (including Cabinet secretaries and deputies, heads of most independent agencies, and ambassadors) that may only be filled by an individual nominated by the President and confirmed by the Senate (so-called “PAS” positions).  The FVRA, enacted in 1998, gives the President authority to appoint acting officers to serve in these positions until the President’s nominee completes the sometimes lengthy Senate confirmation process.

Pursuant to the FVRA, therefore, when former NLRB General Counsel Ronald Meisburg vacated that position on June 20, 2010, Obama appointed Solomon, then a 10-year agency veteran who was serving as Director of the NLRB’s Office of Representation Appeals, to become the agency’s Acting General Counsel.  Six months later, Obama sent Solomon’s name to the Senate, when he nominated Solomon to fill the General Counsel position.  The Senate, however, did not take action on Solomon’s nomination and returned it to the President at the expiration of the Congressional term.  Although Obama resubmitted Solomon’s nomination in May 2013, he later withdrew it and nominated Richard F. Griffin, Jr., whom the Senate confirmed as General Counsel in November 2013.

After one of the Board’s Regional Directors, acting as an agent of the General Counsel, issued as  a complaint alleging Southwest General had committed unfair labor practices, the company argued that Solomon lacked authority to issue and litigate that complaint because his service as Acting General Counsel during the pendency of his nomination to the General Counsel position violated the FVRA.  While the Administrative Law Judge who heard the case and the Board, when it reviewed the ALJ’s decision, rejected that argument, the D.C. Circuit agreed with the employer, and interpreted the FVRA to prohibit any individual (subject to certain limited statutory exceptions that did not apply to Solomon) from serving as an acting officer for a PAS position while he or she was also a nominee to fill that same position for a full term.

The Supreme Court’s Decision

Writing for the majority in NLRB v. SW General, Inc., Chief Justice Roberts wrote “[a]pplying the FVRA to this case is straightforward,” and concluded that once Obama submitted Solomon’s nomination to fill the General Counsel position for a full term, the FVRA prohibited Solomon from continuing in the Acting General Counsel role.  Chief Justice Roberts noted that Obama could have appointed any one of the approximately 250 senior NLRB employees or hundreds of other individuals in PAS positions throughout the federal government to serve as Acting General Counsel during the pendency of Solomon’s nomination.  Because the President did not do so, and Solomon continued to serve as Acting General Counsel, Chief Justice Roberts concluded, Solomon’s continued service as Acting General Counsel after his nomination was submitted to the Senate violated the FVRA.

Chief Justice Roberts also rejected the Board’s argument that, in the past, three different presidents have submitted the nominations of 112 persons for Senate confirmation while they simultaneously served as acting officers under FVRA.  As Chief Justice Roberts pointed out, the FVRA was enacted in 1998, and those 112 nominations made up a small percentage of the total number of nominations for PAS positions that the Senate considered during that time.

Impact of the Court’s Decision

The Court’s ruling will most certainly have an impact on the administration of President Donald Trump, who faces the daunting task of filling the multitude of PAS positions that are either already vacant or will become vacant shortly, as Obama’s appointees transition out.  The decision in SW General will likely have a more limited impact on employers.  When the D.C. Circuit issued SW General, it made clear that it considered the holding to be a narrow one:  Acting General Counsel Solomon served in violation of the FVRA as of the date the President nominated him to be General Counsel.  Moreover, the D.C. Circuit held that any FVRA defect in Acting General Counsel Solomon’s authority to take action could be readily cured if a subsequent, properly-serving General Counsel were to ratify his actions.  Finally, the Circuit made clear that it addressed the FVRA issue only because the employer in Southwest General had timely preserved and raised that objection early in the proceedings.  The Court did not expand the effects of the D.C. Circuit’s ruling with this decision.  The real benefit from the ruling to employers, unions, and others with business before the NLRB may become apparent after Griffin’s four-year term expires in November 2017, when President Trump or any other future President will not be able to designate his or her choice to fill a future vacancy in the position of General Counsel (or in any other PAS position) to serve in such role on an acting basis while their nomination works its way through the Senate confirmation process.

On February 16, 2017, tens of thousands of individuals across the country stayed home from work as part of the “Day Without Immigrants,” a social activism campaign organized in response to President Donald Trump’s recent executive orders concerning immigration and increased enforcement, deportation actions, and raids by Immigration and Customs Enforcement. The “Day Without Immigrants” action was apparently not coordinated by any centralized organization, but was promoted on social media and by word-of-mouth just days before.

Now, the same groups that organized the January 21, 2017 Women’s March on Washington – an action participated in by millions of individuals across the county – has called for a “Day Without Women” to be held on Wednesday, March 8, 2017. Organizers are encouraging women to participate by taking the day off from paid and unpaid labor, and by wearing red – which the organizers note “may be a great act of defiance for some uniformed workers.”

Employers should be prepared to address any difficult questions that might arise in connection with the upcoming “Day Without Women” strike: Do I have to give my employees time off to participate in Day Without events? Can I still enforce the company dress code – or do I need to permit employees to wear red? Can I discipline an employee who is “no call, no show” to work that day? Am I required to approve requests for the day off by employees who want to participate? As we explained in our prior blog post, guidance from the National Labor Relations Board’s General Counsel suggests that an employer can rely on its “lawful and neutrally-applied work rules” to make decisions about granting requests for time off, enforcing its dress code, and disciplining employees for attendance rule violations. An employer’s response, however, to a given employee’s request for time off or for an exception to the dress code, may vary widely based upon the individual facts and circumstances of each case.

As we previously noted, participation in events such as these may be protected concerted activity under the National Labor Relations Act (the “Act”). When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In GC Memo 08-10, issued in 2008, the Board’s General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

However, even if employees’ participation in these mass demonstrations and strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to participate in Day Without Women activities – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

This week, an activist group calling itself “Strike4Democracy” has called for a day of “coordinated national actions” – purportedly including more than 100 “strike actions” across the country – on February 17, 2017. The group envisions the February 17th strike as the first in “a series of mass strikes,” including planned mass strikes on March 8 (organized by International Women’s Day and The Women’s March) and May Day, and a general “heightening resistance throughout the summer.” The organizers are encouraging people not to work or shop that day.

What Is Strike4Democracy Planning?

The February 17th strikes appear intended to be “community-based events,” and so while Strike4Democracy apparently intends for these strikes to serve as an overall protest against President Trump’s actions and policy pronouncement since taking office, the specific message of each strike may vary at the local level. For example, one organizing website in Cleveland describes the “demands” of its local February 17th strike to include “No Ban, No Wall,” “Healthcare For All,” “No Pipelines,” “End the Global Gag Rule,” and “Disclose and Divest” (including demands that President Trump release his tax returns and sell his businesses). According to Strike4Democracy, people are being encouraged to participate on “official strike days” by refusing to work, or they can use their lunch breaks “to disrupt and participate” by, for example, posting social media messages “that support democracy . . . to show how you #BreakLunch.”

What Does This Mean For Employers?

Employers may find themselves with some very difficult questions to answer on February 17th (and potentially after that): Do I have to grant a request for time off by one (or many) employees to attend these events? Can I discipline an employee who does not show up to work because he or she has chosen to participate in a mass strike action? Should I send out a message ahead of time to my employees regarding this event? If so, what can I (or shouldn’t I) say? The answers to these questions are largely going to depend on the particular facts of each case. While in many respects these are uncharted waters, the case law developed under the National Labor Relations Act (the “Act”) over the past 80 years does however offer some potentially meaningful guidance for analyzing these questions.

When employees take action to “improve their lot as employees through channels outside the immediate employee-employer relationship,” that activity is protected concerted activity under Section 7 of the Act so long as it has a direct connection to the employees’ working conditions. GC Memorandum 08-10 (2008), pgs. 1, 10 (citing Eastex, Inc. v. NLRB, 437 U.S. 556, 565 (1978)). There are, of course, some limitations on employees’ right to engage in concerted political activity. In 2008, the National Labor Relations Board’s (the “Board”) General Counsel issued a “Guidance Memorandum” that is relevant to the current situation, after the Board considered a series of unfair labor practice charges involving employees who missed work to attend nationwide and local protests concerning proposed legislation to restrict employers’ hiring of immigrants as employees. In GC Memo 08-10, the General Counsel concluded that under existing Supreme Court and Board precedent, when employees exert economic pressure on their employer by leaving work to support a political cause, that activity may not be protected if the employer has “no control over the outcome of that dispute.” GC Memo 08-10, pg. 10.

As an initial matter, therefore, the question whether an employee engages in protected activity by attending a February 17th rally or demonstration may largely depend on the cause or “demand” at the center of that that local event. A local rally focused on trying to convince the President to release his tax returns likely will not be found to have a direct connection to most employees’ working conditions. Protests concerning issues like immigration reform or opposing repeal of the Affordable Care Act with its implications for employer-provided health benefits, by contrast, might be found to have a more direct nexus to employees’ working conditions – particularly if those employees are immigrants or work in an industry that relies heavily upon immigrant employees.

However, even if employees’ participation in these mass strikes is considered protected concerted activity (as it concerns a specific issue directly connected to their work conditions and terms), an employer may still regulate that activity through its “lawful and neutrally-applied work rules.” GC Memo 08-10, pg. 13. Therefore, an employer can discipline an employee who violates a work rule by improperly using her cell phone on the work floor to tweet with the hashtag #BreakLunch so long as that work rule is lawful (i.e., it would not be found to violate the Act for some other reason) and has been uniformly applied to impose equivalent discipline on other employees in similar circumstances.

Similarly, an employer can rely on its lawful, uniformly-applied policies to evaluate whether to grant a request for time off to attend a February 17th rally – by asking, for example, whether the employee has sufficient accrued time, or has given enough advance notice, or has found someone to cover his work shift if that is ordinarily required. An employer may also apply its neutral attendance policy (which complies with all applicable leave laws, including local paid sick leave laws) to discipline an employee who simply fails to report to work without calling out.

An employer considering whether to distribute a message to employees in advance of the February 17th events must remain mindful that Section 7 of the Act also protects communications about political matters.  Accordingly, a rule prohibiting communications about political matters without clarifying context of examples may be unlawfully overbroad because employees could reasonably construe it to cover communications protected by the Act.

Similarly, a broad admonition against missing work could be considered by the Board to be an unlawful interference with employees’ rights to engage in otherwise protected concerted protected activity. For example in GC-Memo 15-08, which offered guidance on a broad range of employee handbook provisions, the Board’s General Counsel wrote that Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.” As we noted at the time, GC-Memo 15-08 recognized that not all rules concerning absences and leaving the workstations are unlawful, and that a rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”

What Employers Should Do Now

All employers should be prepared to address these issues as they arise – if not this week, then in the coming weeks and months if these types of mass protests continue. As described above, an employer’s reaction to its employees’ expressed desire to participate in these events will vary widely based on the individual circumstances at issue.

Supreme Court Agrees to Review D.C. Circuit’s Decision That Former NLRB Acting General Counsel Served in Violation of Federal Law

On June 20, 2016, the United States Supreme Court granted a request by the National Labor Relations Board (“NLRB” or the “Board”) to review a decision from the D.C. Circuit Court of Appeals, which found that the Board’s former Acting General Counsel Lafe Solomon served in violation of the Federal Vacancies Reform Act, 5 U.S.C. §§ 3345, et seq. (“FVRA”) when he remained in that position after President Barack Obama nominated him to permanently fill the General Counsel role.

In June 2010, President Obama named Solomon as Acting General Counsel for the Board. Then, just six months later, the President nominated Solomon to serve as General Counsel permanently.  Solomon, whose nomination was later returned by the Senate, ultimately served as Acting General Counsel until November 2013.  In NLRB v. SW General, Inc., the D.C. Circuit ruled that the FVRA prohibits one individual from simultaneously serving as both an acting officer and a nominee to permanently fill that same position.  The Circuit concluded, therefore, that Solomon had become ineligible to continue serving as Acting General Counsel as of January 5, 2011 – the date on which the President nominated him as General Counsel.  Accordingly, the Circuit found that Solomon lacked authority to issue an unfair labor practice complaint against SW General, Inc. (“Southwest”) in January 2013, and it vacated the Board’s subsequent decision that Southwest had, in fact, committed the  unfair labor practices alleged in that complaint.

In its petition for certiorari, the Board argued that the D.C. Circuit’s decision conflicted with past interpretations of the FVRA “upon which every president since the statute’s enactment has relied,” and insisted that the FVRA’s prohibition against permanent nominees simultaneously serving as acting officers applies only to individuals who initially served as “first assistants” to the office in question.  Because Solomon was never a “first assistant” to the General Counsel, the Board continued, the FVRA did not prohibit him from continuing to serve as Acting General Counsel during the pendency of his nomination to serve as  General Counsel.  The Board warned that the Circuit’s decision could significantly impede the President from temporarily filling open positions with the individuals whom he or she “deems most qualified to fill them permanently.”  Moreover, given the upcoming presidential election, the Board urged the Supreme Court to grant review “to ensure that the new President will not face uncertainty . . . regarding the legal constraints that govern his or her selection of acting officers and nominees.”

As we noted in a prior post, when the D.C. Circuit issued its decision in SW General, it emphasized the limited immediate impact of its finding that Solomon lacked authority to issue ULP complaints after January 5, 2011.  Indeed, the Circuit expressly stated that its decision was “not the Son of Noel Canning” – a reference to the Supreme Court’s decision in Noel Canning v. NLRB, which resulted in the retroactive invalidation of hundreds of Board decisions.  Instead, the Circuit made clear that if an employer failed to timely object to the invalidity of the Acting General Counsel’s service, that issue would be waived.

Nonetheless, the Supreme Court’s decision in this matter is expected to have wide-reaching ramifications, particularly given that many agencies will likely see new incoming acting officers once the newly-elected President takes office in January.  We will keep you updated with further developments in this case.

The recent decision by the National Labor Relations Board (“NLRB” or the “Board”) in Blommer Chocolate Company of California (PDF) addresses one of the issues left open in the wake of the Board’s earlier ruling in Purple Communications, Inc. – namely, the extent to which an employer may regulate the content of its employees’ emails sent over the workplace email system.  In Purple Communications, the Board concluded that an employee who is permitted to use the employer’s email system for non-work purposes is presumptively permitted to use that email system (during non-work time) to communicate with others about union-related issues.  While the Board did preserve an employer’s right to monitor its email system for “legitimate management reasons,” such as ensuring productivity or preventing harassment, it did not expressly define the contours of an employer’s ability to regulate the content of employees’ emails sent over the workplace email system.

In Blommer Chocolate Company of California, the Board addressed this very issue, and concluded that a work rule that allowed employees to use their work computers for personal reasons but prohibited them from expressing any personal opinions in their emails was impermissibly overboard.  The Board further concluded that this objectionable work rule (along with two others) interfered with a representation election, and directed that a second election take place.

Given the somewhat extreme nature of the work rule at issue in Blommer, the Board did not engage in much analysis before finding it overbroad.  Nonetheless, this decision demonstrates the Board’s willingness to review (and potentially invalidate) employers’ attempts to regulate or control the content of emails exchanged over the workplace email system.  It remains to be seen whether the Board will scrutinize an employer’s email usage rules in the same way that it has reviewed corporate social media policies in the last few years.  For example, will a work rule prohibiting an employee from using profanity in emails sent over the workplace email system be found to unlawfully restrict employees’ statutorily protected communication rights?  Indeed, as the Board and Second Circuit have recently made clear, employees’ Facebook and social media activity does not lose its protected status merely because it contains profanity.  Similarly, would work rules that attempt to regulate employees’ tone over email, or instruct employees to remain mindful that their communications reflect on their employer’s image withstand Board scrutiny?

As this area of the law continues to develop, employers should review their existing policies and practices regarding their employees’ use of the workplace email system, and give particular consideration to any policies or practices that restrict, regulate, or otherwise limit the content of employees’ emails.