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Total Articles: 136

Meet Illinois’ Newest Power Couple: NLRB Region 13 and Illinois DOL Enter Into Formal Cooperation Agreement; NLRB Softens Strict Default Judgment Language, Gives Regions More Discretion

The past few weeks have brought potentially important developments for employers at both the local and national level. First, in Chicago, the Regional Director for Region 13 of the National Labor Relations Board, Peter Sung Ohr, and the Director of the Illinois Department of Labor (DOL), Joseph Costigan, recently signed a Memorandum of Understanding (MOU) to strengthen cooperation and collaboration between the two agencies. Under the MOU, the agencies have agreed to refer charges to each other if they receive information while processing a case that may be within the jurisdiction of the other agency, if the individual consents to the referral. The MOU also provides for cross-training between the two agencies and procedures for sharing information “where appropriate.”

Littler Shareholders Maury Baskin and Michael Lotito Testify at NLRB Public Meeting

Nearly 50 speakers have or are slated to testify during the National Labor Relations Board’s 2-day public meeting on the proposed expedited or “ambush” election rule. The Board sought input on approximately 20 different issues stemming from the proposed rule, which would make significant changes to pre- and post- representation election process. Among the speakers were Littler Shareholders Michael Lotito and Maury Baskin, who testified specifically about the proposal’s expedited timing of the pre-election hearing; the requirement that an employer identify all potential bargaining unit issues in its statement of position or forever waive them; the types of matters that should be resolved at the pre-election hearing; and how the rules should address voter lists. A live stream of the public meeting – which is scheduled to run through 4:30 today – can be viewed here.

NLRB Acting GC Lacked Authority to Serve, But Still had Authority to Act, Court Says

Former National Labor Relations Board Acting General Counsel, Lafe Solomon, lacked authority to continue serving in that capacity after President Barack Obama nominated him for the General Counsel position early in 2011, the U.S. District Court for the District of Alaska has held. Hooks v. Remington Lodging & Hospitality, LLC, No. 13-00213 (D. Alaska Mar. 18, 2014). However, the Court also held that unfair labor practice (ULP) complaints Solomon issued against a hotel management company were nevertheless valid under the “de facto officer doctrine.” Solomon left the agency in November, 2013. Richard F. Griffin, Jr., was sworn in as General Counsel of the NLRB on November 4, 2013, for a four-year term, after being confirmed by the Senate.

Revitalized National Labor Relations Board Sets an Aggressive Course

The National Labor Relations Board is now operating at full strength with five Board members who were properly nominated and confirmed. As a result, employers should expect increased activity as the Board seeks to make up for lost time. All signs point to a fully engaged Board as it seeks to resuscitate its “quickie” election rule and churns out decisions that play a role in shaping the workplace for union and non-union employers. The following provides an update on recent Board decisions and developments, including the latest “quickie” election developments.

Supreme Court Expressed Skepticism Regarding Validity of President Obama's NLRB Recess Appointments

During Monday’s oral arguments of the closely watched case NLRB v. Noel Canning, several members of the Supreme Court – including those considered the most liberal – took issue with the government’s legal justifications in support of President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board. On January 25, 2013, the D.C. Circuit held in Noel Canning that the appointments of former members Sharon Block, Terence Flynn, and Richard Griffin to the Board while the Senate was holding pro forma sessions were unconstitutional. While it is always difficult to read the tea leaves during a Supreme Court argument, it appears that there is a good chance that the Court will uphold Noel Canning, placing hundreds of Board decisions in legal limbo.

Senate Confirms New Top Board Attorney

The full Senate confirmed a new General Counsel (“GC”), or top attorney, for the National Labor Relations Board (“Board”), Richard Griffin. Griffin replaces Lafe Solomon who was named Acting GC by President Obama in June 2010 following the resignation of Ronald Meisburg.

Two Names You May Not Know and May Never Hear Much About

But if you are at all interested in what may be coming out of new NLRB General Counsel Richard Griffin's office, and if you are an employer you should be, then you should at least know of Jennifer Abruzzo and Rachel Lennie, the new deputy general counsel and assistant general counsel respectively. See Corporate Counsel's, New NLRB GC Begins Building Labor Legal Team.

Senate Confirms Griffin to be National Labor Relations Board General Counsel

The U.S. Senate on Tuesday confirmed President Obama’s nomination of Richard F. Griffin, Jr. to serve as general counsel of the National Labor Relations Board (NLRB). The vote was 55-to-44 and fell along party lines; Senator Lisa Murkowski (R-Alaska) joined Senate Democrats and independents in approving the nomination. With Griffin’s confirmation, the final piece is now in place in what for employers should be a very challenging four years

NLRB Issues Post-Shutdown Notice on Filing Deadlines

Now that the government shutdown has finally ended, federal agencies have been fielding questions about adjusted filing deadlines and procedures. As previously discussed, when the shutdown first began, the National Labor Relations Board issued a directive granting parties an extension of time to file or serve any document “for which the grant of an extension is permitted by law.” Now that the government has re-opened and the Board’s electronic filing system is back up and running, the agency released a notice clarifying the new deadlines.

Senate Set to Consider NLRB General Counsel Nomination

While attention was diverted to the eleventh-hour efforts to craft and pass a deal avoiding a fiscal crisis and reopening the federal government, Senate Majority Leader Harry Reid (D-NV) on Wednesday filed a motion to proceed with consideration of Richard Griffin, Jr., to be the General Counsel of the National Labor Relations Board. Griffin was one of the three controversial recess appointees to the Board. In July, Griffin’s nomination to the Board was withdrawn – along with fellow recess appointee Sharon Block – as part of the Senate deal to confirm a full slate of Board candidates.

Federal Judge Invalidates Appointment of Top Board Attorney

A U.S. District Court for the Western District of Washington held that Lafe Solomon, Acting General Counsel of the National Labor Relations Board (“Board”), was improperly appointed and as a result, dismissed a Board petition for injunctive relief. Solomon was appointed by President Obama as the top Board attorney in June 2010.

Legal Alert: NLRB Releases Notice of Procedures for Government Shutdown

Executive Summary: The National Labor Relations Board has released a notice of procedures that will apply during the shutdown of government agencies resulting from the failure of Congress to reach an agreement on appropriations. The Notice will be published in the Federal Register and is available at: http://mynlrb.nlrb.gov/documents/FRNGovernmentShutdown2013.pdf.

Nomination of Richard Griffin for NLRB General Counsel Moves Forward

On Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-9 to advance the nomination of Richard F. Griffin, Jr., to serve as General Counsel of the National Labor Relations Board. Griffin was one of the three controversial recess appointees to the Board. Earlier this summer, Griffin’s nomination to the Board was withdrawn – along with fellow recess appointee Sharon Block –as part of the Senate deal to confirm a full slate of Board candidates.

Is a New NLRB Sheriff Coming to Town?

For the first time in a decade, the National Labor Relations Board is operating with a full slate of five members. But Congress still needs to confirm—or not—a general counsel to enforce the board’s agenda. On August 1, the Obama administration quietly nominated Richard Griffin, former union attorney and NLRB member (by recess appointment). We should all take note—as NLRB GC, Griffin would wield the authority to reshape the legal landscape for union and non-union employers alike.

Legal Alert: Federal Court Finds NLRB Acting General Counsel Solomon's Appointment Invalid

Executive Summary: A federal trial court in Washington state has held that the President violated the Federal Vacancies Reform Act (5 U.S.C. § 3345, et. seq.) when he appointed Lafe Solomon as Acting General Counsel for the National Labor Relations Board (the Board) on June 21, 2010. See Hooks ex rel. NLRB v. Kitsap Tenant Support Servs. (W.D. Wa. 2013). Given that Solomon was improperly appointed, the court also held that neither he nor Regional Director Hooks had the authority to issue an unfair labor practice complaint against the employer. Furthermore, without a valid complaint, Hooks was without the authority to file for a § 10(j) preliminary injunction.

Lafe Solomon's Appointment Was Invalid? (Can that be right?)

As the validity of President Obama's "recess" appointments to the National Labor Relations Board remains in question, now a court has determined that the appointment of the NLRB's Acting General Counsel Lafe Solomon was invalid. In Hooks v. Kitsap Support Tenant Services, Inc., a federal judge in Washington state held that the appointment did not comply with the Federal Vacancies Reform Act of 1998. The decision is likely to have a big impact if it survives a motion for reconsideration or appeal. But whether it will do so remains to be seen.

NLRB Recess-Appointment Problem Sinks NLRB Regional Director’s Complaint Authority

Acting General Counsel Lafe Solomon did not have the authority to delegate to a Regional Director the authority to issue an unfair labor practice complaint, the U.S. District Court for the Western District of Washington has ruled. Hooks v. Kitsap Tenant Support Services, Inc., No. 13-5470 (W.D. Wash. Aug. 13, 2013).

Federal Judge Rules NLRB Acting General Counsel Lafe Solomon’s Appointment is Invalid, Throws out Injunction Lawsuit

Further complicating the beleaguered Agency’s ability to carry out its mission, a federal court has determined that National Labor Relations Board Acting General Counsel (GC) Lafe Solomon was not properly appointed to his position.

Federal District Court First to Rule “Acting” General Counsel Lafe Solomon’s Appointment Invalid

In a decision that is likely to generate numerous questions and perhaps some confusion, a federal district court judge in the U.S. District Court for the Western District of Washington issued an order on August 13 that found the Federal Vacancies Reform Act appointment of the ”Acting” General Counsel of the National Labor Relations Board (NLRB), Lafe Solomon, to be invalid.

Why the NLRB Is Its Own Worst Enemy

The NLRB’s social-media war has been front and center for employers since 2010. Decisions by administrative law judges and by the Board itself, as well as advisory memoranda from the Acting General Counsel have created an impossible patchwork of prohibitions and rules that, if followed, would make managing an efficient workforce effectively impossible. And it doesn’t stop there.

Supreme Court Will Hear Noel Canning Next Term

On June 24, 2013, the U.S. Supreme Court granted review of Noel Canning, a D.C. Circuit Court case invalidating three recess appointments to the National Labor Relations Board made by President Obama.

NLRB: How Senate Compromise Could Adversely Affect Employers

A bold threat by Majority Leader Harry Reid (D-Nev.) to reduce the number of votes necessary to approve Executive branch nominees - the so-called "nuclear option" - has helped to ensure that the National Labor Relations Board (NLRB) will continue to advance its current agenda for the foreseeable future.

Another Federal Appellate Court Holds NLRB Recess Appointments Unconstitutional

President Barack Obama’s 2012 recess appointments to the National Labor Relations Board were invalid, and therefore, the NLRB did not have a quorum when it issued decisions, the Fourth Circuit Court of Appeals in Richmond has held, joining the federal appellate courts for the D.C. and Third Circuits. Huntington Ingalls Inc. v. National Labor Relations Board and National Labor Relations Board v. Enterprise Leasing Co. SE, LLC, 2013 U.S. App. LEXIS 14444 (4th Cir. July 17, 2013).

NLRB Statistics Show Unexpected Numbers

The National Labor Relations Board (“Board”) releases statistics regarding its caseload and operations in a report called a “Performance and Accountability Report” (“Report”) and other memoranda. In 2012, the information showed a decrease in overall case numbers, both unfair labor practice charges and representation cases. This is not surprising. The Board has been attacking non-union companies in recent year in part due to this lack of its traditional business

NLRB Back at Full Strength after Senate Approves Slate of Nominees

As we reported earlier this month, Senate leaders reached a compromise to return a full complement of five members to the National Labor Relations Board after President Obama agreed to withdraw his February 2013 nominations of recess appointees Richard Griffin and Sharon Block and nominate a full slate of five Members to the Board. Yesterday, the Senate confirmed all five nominees, marking the first time that the NLRB has carried five Senate-confirmed members since August 2003, when R. Alexander Acosta’s term expired. Democrats Kent Hirowaza and Nancy Schiffer were confirmed by identical, nearly party-line 54-44 votes while Republicans Philip Miscimarra and Harry Johnson, III were confirmed by voice votes. Current Chairman Mark Gaston Pearce, a Democrat, was reconfirmed by a 59-38 margin.

Senate Confirms All Five NLRB Nominations

In a series of votes stretching into the early evening, the Senate on Tuesday confirmed all five nominations to the National Labor Relations Board, restoring the agency to full operational capacity. The Board now comprises Chairman Mark Gaston Pearce (D), Kent Hirozawa (D), Nancy Schiffer (D), Harry I. Johnson, III (R), and Philip A. Miscimarra (R).

HELP Committee Advances NLRB Nominations

The National Labor Relations Board is one step closer to operating with a full complement of members. On Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-9 largely along party lines to send the nominations of Kent Yoshiho Hirozawa and Nancy Jean Schiffer to the full Senate for confirmation. Yesterday, the Committee held a hearing to consider these two Board nominees, who were picked to replace outgoing recess appointees Sharon Block and Richard Griffin.

Senate Panel Considers New NLRB Nominees

During a Tuesday morning hearing, members of the Senate Committee on Health, Education, Labor and Pensions (HELP) questioned whether National Labor Relations Board nominees Kent Yoshiho Hirozawa and Nancy Jean Schiffer could impartially serve as Board members given their pro-labor backgrounds. Last week President Obama named Hirozawa and Schiffer as his choices to replace recess appointees Richard Griffin and Sharon Block. The selection of two new candidates was part of the contentious Senate deal to avoid changing the chamber’s filibuster rules.

Four New National Labor Relations Board Members Expected

An agreement reached on July 16, 2013, between Senate Democrats and Republicans to avoid filibuster reform should result in four new members of the National Labor Relations Board (NLRB) and the reappointment of its controversial chair, Mark Gaston Pearce. Concerned over lengthy delays with confirmation of seven of President Barack Obama’s nominees, including five appointments to the NLRB, Democrats threatened to use the so-called “nuclear option” on Senate rules, a change that would have drawn Republicans ire and stalled major legislation.

Nuclear Stand Down: Senate Compromise Paves Way for Full Complement of Pro-Labor Controlled NLRB

A bold threat by Senate Majority Leader Harry Reid (D-Nev.) to change Senate filibuster rules to reduce the number of votes necessary to approve Executive branch nominees – the so-called “nuclear option” – helped to ensure that the National Labor Relations Board will continue to advance its pro-labor agenda, at least through the current Administration’s term.

Agreement Not to Filibuster Nominations for Secretary of Labor and NLRB Avoids “Nuclear Option” in the Senate, But Poses “Time Bomb” for Employers

Yesterday, the U.S. Senate avoided the “nuclear option” on pending nominations for Secretary of Labor-Designate Thomas Perez and for a package of nominees to the National Labor Relations Board (NLRB). The nuclear option would have changed Senate rules by a simple majority vote (rather than the required 67 votes) to end filibusters on presidential executive branch nominations rather than the required 60 votes for “cloture” to cut off debate.

President Reportedly Names Two New NLRB Nominees

As part of the newly-announced deal to avoid changes to the Senate rules, President Obama has reportedly named Nancy Schiffer and Kent Hirozawa as National Labor Relations Board nominees to replace recess appointees Sharon Block and Richard Griffin, whose nominations have been withdrawn. According to an article in Politico, the President selected Schiffer and Hirozawa after conferring with AFL-CIO head Richard Trumka. Politico also reports that part of the Senate deal includes a guaranteed vote on a nominee slot that will open on the Board in 2014.

U.S. Supreme Court Will Review D.C. Circuit's Noel Canning Decision Invalidating NLRB Recess Appointments

As anticipated, the U.S. Supreme Court announced that it will review the U.S Court of Appeals for the D.C. Circuit’s decision invalidating the president’s recess appointments to the National Labor Relations Board, in NLRB v. Noel Canning. On January 25, 2013, the D.C. Circuit held that President Obama’s January 4, 2012, recess appointments of Members Sharon Block, Terence Flynn, and Richard Griffin were unconstitutional and, thus, the Board lacked a legitimate quorum to proceed since the recess appointments were made. The D.C. Circuit’s decision passes doubt on hundreds of decisions issued by the Board, including many significant precedent-departing decisions. The Noel Canning decision further implicates the president’s recess appointment powers, generally.

Five NLRB Nominations To Go To Full Senate

The Senate Health, Education, Labor, and Pensions Committee recently voted on each of President Obama's five pending nominations to the National Labor Relations Board. Separate votes were taken on each nominee, and each was approved. The two Republican nominees, Harry I. Johnson, III, and Philip A. Miscimarra, received unanimous approval, while the Democrats, current Chairman Mark Gaston Pearce, and "recess" appointees Richard F. Griffin, Jr., and Sharon Block, were approved with a vote largely along party lines.

NOEL CANNING WITH A VENGEANCE: Court Says Craig Becker's "Recess" Appointment Was Not Valid, Calling Into Question Many NLRB Decisions Dating Back at Least to 2010

Last week, a panel of the U.S. Court of Appeals for the Third Circuit held 2-1 in NLRB v. New Vista Nursing and Rehabilitation that President Obama's purported "recess" appointment of former Member Craig Becker to the National Labor Relations Board on March 27, 2010, was an invalid "intrasession" recess appointment. Accordingly, the decision of a Board panel that included Becker was void because the panel did not have at least three members. The court ruled that the three-member minimum for a "delegee" panel of the Board was a jurisdictional issue – in other words, it went to the very power of the panel to act – and therefore could be raised by a party at any time, or by a court acting on its own.

Senate Panel Advances NLRB Nominees

On Wednesday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted to send the nominations of Mark Gaston Pearce (D), Sharon Block (D), Richard Griffin (D), Harry I. Johnson, III (R) and Philip A. Miscimarra (R) to the full Senate for consideration. While the votes in favor of Johnson and Miscimarra were unanimous, the Committee voted 18-4 in favor of Pearce, and 13-9 in favor of Block and Griffin. The votes approving Block and Griffin were the most divisive, as they are the two members seated via recess appointment in January 2012. Federal courts are divided as to the constitutionality of these appointments, a matter that is likely headed to the Supreme Court.

Another Appointment to NLRB Declared Invalid

Former National Labor Relations Board Member Craig Becker’s appointment to the agency was invalid, the United States Court of Appeals in Philadelphia has ruled. NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 & 12-1936 (3d Cir. May 16, 2013). Becker was selected by President Barack Obama to serve a “recess” appointment on the Board from March 27, 2010 until early in 2012.

Legal Alert: Another Federal Court Invalidates the Recess Appointment of an NLRB Member

Executive Summary: In a 2-1 decision, the Third Circuit has held that the President's recess appointment of Craig Becker to the National Labor Relations Board was invalid because he was not appointed during an intersession break of Congress as required by the Recess Appointments Clause. Accordingly, the court held that a three-member panel of the Board, which included Becker, could not exercise the Board's authority, and the court vacated an unfair labor practice decision issued by the panel.

Next Stop Supreme Court for Noel Canning

Three months have passed since the D.C. Circuit Court held three appointments to the National Labor Relations Board (“Board”) were invalid in the Noel Canning decision. The Board decided not to seek an en banc rehearing before the D.C. Circuit Court and instead filed a petition for writ of certiorari on April 25, 2013 with the United States Supreme Court.

Third Circuit Invalidates President Obama’s Appointment of former NLRB Member Becker; Becomes Second Appellate Court To Rule NLRB Recess Appointments Unconstitutional

In late January, the D.C. Circuit ruled in Noel Canning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National Labor Relations Board were unconstitutional because they did not occur during an intersession recess of the Senate. Yesterday, the Third Circuit invalidated the earlier recess appointment of former NLRB Member Craig Becker and became the second appellate court to rule that President Obama’s recess appointments to the Board were unconstitutional.

Senate Committee Questions NLRB Nominees as Third Circuit Declares Recess Appointments Unconstitutional

The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency.

ANOTHER ONE BITES THE DUST: The NLRB’s Assault on Social Media and Internet Policies Continues

An administrative law judge for the National Labor Relations Board recently issued an opinion invalidating two of a healthcare provider’s policies regarding the use of email, company computers and company Internet, finding the policies violated the National Labor Relations Act. This ruling is another in a long line of NLRB decisions and “guidance” intent on broadening employee communication rights under the guise of Section 7.

Being Tricked into Firing an Employee is Not a Defense – More From the NLRB on Facebook Firings

We’re extremely pleased to have another guest blogger this week – our colleague, Karen Schanfield. Karen is a shareholder in Fredrikson & Byron’s Employment & Labor Law Group, and, among other accolades, has been named by her peers as one of the Top 40 Labor and Employment Law Attorneys and one of the Top 50 Women Attorneys in Minnesota. Thank you, Karen, for this post!

Controversy over NLRB Appointments Continues

The National Labor Relation Board’s petition to the U.S. Supreme Court for review of Noel Canning was filed on April 25. The Supreme Court will be the most important battleground for resolution of the question whether President Barack Obama’s recess appointments of NLRB Members Sharon Block, Richard Griffin and former-Member Terence F. Flynn were constitutional. (For more on Noel Canning, see our article, Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.)

The NLRB's Quorum Quandary

The ongoing saga over composition of the National Labor Relations Board took several twists last month, and uncertainty continues to swirl around the agency’s authority to do business. As of today, the Board consists of Democrat Chairman Mark Pearce (whose term is set to expire in August), along with two recess appointees, Richard Griffin and Sharon Block, both also Democrats. The two other seats, which by tradition should be held by Republicans, have remained vacant for some time.

Entire NLRB Awaiting Senate Approval

Following the Noel Canning decision in which the D.C. Circuit Court held three appointments to the National Labor Relations Board (“Board”) were invalid, President Obama announced on April 9, 2013, the three nominees he intends to nominate to the Board. The remaining two Board members, Richard F. Griffin, Jr. and Sharon Block, are up for renomination.

Labor Board Battles Challenges to Authority

National Labor Relations Board authority is being challenged on several fronts following the U.S. Court of Appeals for the District of Columbia Circuit’s ruling that the NLRB did not have the authority to act. A case involving a representation petition filed at the NLRB by a union seeking to represent a group of an employer’s employees is one example.

WILL THE NLRB GET A FULL SLATE? Obama Adds Three to Pending Nominations

This week, in an apparent attempt to minimize the damage from the Noel Canning decision, President Obama announced three more nominations to the National Labor Relations Board – two Republicans, and one Democrat. These new nominations, coupled with the February nominations of current "recess appointees" Sharon Block and Richard Griffin, would give the Board its first full slate since August 2010 if approved by the Senate.

President Obama Announces Three Nominees to NLRB

Today President Obama announced his intent to nominate current Chairman Mark Gaston Pearce and management-side labor and employment attorneys Harry I. Johnson, III and Philip A. Miscimarra to the National Labor Relations Board.

Quorum, Heck a Fully Appointed NLRB?

Doubtful for awhile, but at least five nominees are now pending Senate action., with the announcement today of the appointment of two new members and the renomination of the current Chairman of the Board, Mark Pearce. President Obama Announces More Key Administration Posts.

Obama Re-Nominates Pearce, Names Two Others to Fill Republican NLRB Seats

President Obama has announced his intent to re-name Mark Gaston Pearce as Chairman of the National Labor Relations Board (NLRB), as well as seat Harry I. Johnson, III and Philip A. Miscimarra as new members. It is likely that all three nominees will be presented to the Senate as a package. However, it remains to be seen if, and when, the Senate will act on their nominations.

Is the NLRB a Dysfunctional Union Advocate?

According to a staff report from the Oversight and Government Reform Committee entitled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” the National Labor Relations Board has a pro-union bias.

Senate Fails to Consider NLRB Defunding Amendment, Approves Other Amendments to Budget Resolution

The Senate approved a budget resolution last week that omits an amendment that would have withheld funds from the National Labor Relations Board to prevent it from enforcing decisions or regulations issued after three members were seated to the Board via recess appointment on January 4, 2012. In the wake of the recent federal court decision finding that the recess appointments were unconstitutional, several measures have been considered in Congress to limit the Board’s authority. Just last week, the House Committee on Education and the Workforce approved a bill that would require the Board to suspend all activities that require a three member quorum and prohibit the enforcement of any quorum-required action taken after January 4, 2012. The amendment (S. Amdt. 349) to the budget resolution (S. Con. Res. 8) was the most recent maneuver to accomplish this end.

House Committee Approves Bill Limiting NLRB Activities until Recess Appointment Issue is Resolved

The U.S. House Committee on Education and the Workforce approved along party lines the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120). The bill would require the NLRB to suspend all activities that require a three member quorum and prohibit the enforcement of any quorum-required action taken after President Obama seated three members via recess appointment on January 4, 2012. As previously discussed, the impetus for this bill – and several others – was the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that the recess appointments to the NLRB were unconstitutional.

NLRB Appeals Noel Canning Decision to the Supreme Court

As we discussed at the end of January, in Noel Canning, the D.C. Circuit ruled that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully.

Will All 2012 NLRB Decisions Be Invalidated?

The U.S. Court of Appeals for the D.C. Circuit just ruled that three appointments to the National Labor Relations Board (NLRB) made by President Obama on January 4, 2012, were unconstitutional.

Noel Canning Aftermath: Perspectives for Employers Three Weeks after D.C. Circuit’s Important NLRB Decision

Three weeks after the D.C. Circuit invalidated President Barack Obama’s January 2012 recess appointments to the National Labor Relations Board (NLRB), we can provide some better perspective on what the decision means for employers, both those affected by recent NLRB decisions and those just monitoring developments going forward. As we discussed at the end of January, in Noel Canning, the D.C. Circuit ruled that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully.

APPELLATE PANEL INVALIDATES PRESIDENT OBAMA’S RECESS APPOINTMENT TO THE NLRB

One of the hottest labor issues in Washington is whether the President exceeded his powers on January 4, 2012 when he unilaterally filled three vacancies on the National Labor Relations Board. Two of the Obama appointees were openly pro-union Democrats with significant ties to organized labor. The other was a Republican, who resigned on May 26, 2012 in the midst of an ethics investigation.

House Subcommittee Conducts Hearing to Discuss Future of the NLRB

As a result of the recent federal court decision that President Obama’s three recess appointments to the NLRB were unconstitutional, past and future Board decisions and agency actions are constitutionally suspect and open to judicial challenge, according to lawmakers and panelists during a congressional subcommittee hearing held on Wednesday. The House Subcommittee on Health, Employment, Labor, and Pensions conducted this hearing, entitled: “The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions” to examine the implications of the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning v. NLRB decision.

Senate Responds to Noel Canning Decision

Following the U.S. Court of Appeals for the D.C. Circuit’s finding in Noel Canning v. NLRB that President Obama’s three January 2012 recess appointments to the NLRB were unconstitutional, the Senate reacted by introducing a number of measures that take aim at the Board’s current authority.

APPELLATE PANEL INVALIDATES PRESIDENT OBAMA’S RECESS APPOINTMENT TO THE NLRB

One of the hottest labor issues in Washington is whether the President exceeded his powers on January 4, 2012 when he unilaterally filled three vacancies on the National Labor Relations Board. Two of the Obama appointees were openly pro-union Democrats with significant ties to organized labor. The other was a Republican, who resigned on May 26, 2012 in the midst of an ethics investigation.

D.C. Circuit Court Finds No "Recess" Existed For Obama's Three NLRB Recess Appointments In 2012

As we reported on Friday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit has struck down the "recess appointments" to the National Labor Relations Board of Members Sharon Block and Richard Griffin, both Democrats, and former Member Terence Flynn, a Republican who resigned in 2012. The three so-called "recess appointees" were named by President Barack Obama on January 4, 2012, when the Senate was holding short "pro forma" sessions at least once every three days between December 20, 2011, and January 23, 2012, to avoid being in recess. The Obama Administration contended the Senate was effectively in recess beginning December 20, 2011, that the pro forma sessions meant nothing, and that it had the power to make recess appointments during this period. The Administration held to this position despite the fact that the Senate took some substantive actions during the pro forma sessions, which included votes approving a temporary extension of a payroll tax provision on December 23, 2011, and commencing a second session of the 112th Congress on January 3, 2012.

NLRB Appointments Ruled Unconstitutional

A federal court overturned the President's latest recess appointments.

D.C. Circuit Invalidates NLRB Recess Appointments, Creating Period of Uncertainty for Employers

For the past year, unionized and nonunionized employers across the United States have been alarmed by the National Labor Relations Board's expansive interpretation of the National Labor Relations Act and the resulting potential impact on their businesses. On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board, Nos. 12-1115 & 12-1153 (D.C. Cir. Jan 25, 2013), dealt a significant blow to the NLRB's expansive actions. The D.C. Circuit held that President Obama's recess appointments of Members Sharon Block, Terence Flynn, and Richard Griffin to the NLRB on January 4, 2012 were invalid and, thus, the NLRB lacked a legitimate quorum of members to act since such appointments were made.

Court Finds President's Recess Appointments to NLRB Unconstitutional

A three-judge panel of the D.C. Circuit Court of Appeals has held that President Obama's recess appointment of three members to the National Labor Relations Board (NLRB) violated the U.S. Constitution. See Noel Canning v. NLRB, No. 12-1115 (January 25, 2013). While the NLRB likely will appeal this decision to the U.S. Supreme Court, if it stands, the decision could mean that hundreds of Board decisions issued over the last year are invalid.

D.C. Court of Appeals Rules NLRB Recess Appointments Were Unconstitutional; Calls into Question Hundreds of Decisions Issued Last Year

The U.S. Court of Appeals for the D.C. Circuit ruled this morning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National Labor Relations Board were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully. If the court’s ruling stands, it would invalidate all the decisions made by the NLRB since Member Becker’s term ended on January 3, 2012. It also would leave the NLRB with just one validly appointed member.

What Now for the NLRB? Recess Appointments Invalid

Although undoubtedly not the last word, today's opinion by the D. C. Circuit Court of Appeals limiting the President to make "recess appointments" only between sessions of Congress, is a major break in precedent, not so much with prior court decisions but with prior practice by Presidents of both parties. Obama Labor Board Recess Appointments Are Unconstitutional, Federal Court Rules.

Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules

National Labor Relations Board Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were not properly named to the Board as interim appointees by President Barack Obama at the beginning of 2012, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013). The three-judge panel said President Obama did not have the power to make the three recess appointments to the Board because the Senate was officially still in session at the time and therefore they were not made during “the recess” that takes place between sessions, as required by the Constitution.

For Want of a Quorum: Court Rules Against NLRB

Mid-morning on Friday, January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued a long-awaited ruling refusing to enforce the National Labor Relations Board’s bargaining order against a petitioning employer. The basis for the court’s decision was the improper appointment of three members of the NLRB. Noel Canning v. NLRB

NLRB Recess Appointments Invalid, D.C. Court Holds

In a decision that could potentially invalidate hundreds of Board decisions, the U.S. Court of Appeals for the D.C. Circuit has held that President Obama’s three recess appointments to the NLRB were unconstitutional. In the decision, Noel Canning v. NLRB, the court vacated an unfair labor practice determination on the grounds that the Board lacked a legitimate quorum when it issued its decision.

D.C. Circuit Holds Recess Appointments to NLRB Invalid

On January 25, 2013, a three-member panel of the D.C. Circuit Court of Appeals issued a decision finding that the recess appointments to the National Labor Relations Board (NLRB) by President Obama on January 4, 2012 were unconstitutional. Specifically, the court held that the Board lacked a quorum of three members when it issued the decision in this case because the appointments did not occur during a “recess” of the Senate. This ruling stands to have broad ramifications as it calls into question the validity of the Board’s decisions dating back to January 4, 2012. Noel Canning v. NLRB, No. 12-1115, D.C. Circuit Court of Appeals (January 25, 2013).

BREAKING: D.C. Circuit strikes down Obama's "recess appointments" to NLRB

The U.S. Court of Appeals for the District of Columbia Circuit struck down today the "recess appointments" of Sharon Block and Richard Griffin to the National Labor Relations Board. Without Members Block and Griffin, most of the Board decisions issued in 2012 and all issued in 2013 are void for lack of a quorum. If this decision stands, the only validly appointed member of the Board still serving is Chair Mark Gaston Pearce. The decision also calls into question the "recess appointment" of Richard Condray to head the Consumer Financial Protection Bureau.

NLRB Asserts Jurisdiction over Chicago Nonprofit Corporation that Operates Charter School

In a 3-1 decision in Chicago Mathematics & Science Academy Charter School, Inc. and Chicago Alliance of Charter Teachers & Staff, IFT, AFT, AFL-CIO, the National Labor Relations Board (NLRB) asserted jurisdiction over a private, nonprofit corporation that operates a public charter school in Chicago.

Recess Appointments at NLRB – Front and Center for 2013

The U.S. Court of Appeals for the District of Columbia Circuit will soon decide whether National Labor Relations Board Members Sharon Black and Richard Griffin, both Democrats, as well as former Member Terence F. Flynn, a Republican, were properly named to the panel as interim appointees by President Barack Obama at the beginning of 2012. An adverse ruling could cast into doubt the validity of many recent Board decisions and other actions in which they participated, and leave the agency in disarray. The Court recently heard oral argument in Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153, which presents the Court with this issue. Challengers of the recess appointments contend that the Senate was not in recess at the time President Obama named the three interim Members to the Board on January 4, 2012, as constitutionally required, and therefore, the President did not have authority to make such appointments. Interim appointments are those made by a president when the Senate is not in session. Such appointees typically serve until the end of the next Senate session.

House Committee Report Contains Sharp Criticism of NLRB

Last week the House Committee on Oversight and Government Reform released a staff report highlighting rulemaking, decisions, and other actions taken in recent years by the National Labor Relations Board (NLRB or “Board”) that the Committee contends are indicative of the agency’s pro-union bias. Rep. Darrell Issa (R-CA) chairs the Committee. The report – President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate (pdf) – claims that these legislative, regulatory, and internal missteps “compromise the perceived fairness of the NLRB that Congress deemed necessary for its successful operation,” and have created a “rogue agency plagued by systemic problems.” The 33-page report touched on a number of perceived faults with the Board’s operation and decision-making process, including the following:

NLRB Blasted by House Oversight Committee

On December 13, 2012, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a 33-page report accusing the National Labor Relations Board (NLRB or Board) of express pro-union bias, pursuing a program of aggressive tactics designed to promote union agendas, making substantive decisions without legal authority, violating its own ethical and procedural rules, and hostility to Congressional oversight. The report, titled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” can be accessed here. For employers that have been involved in cases brought before NLRB this year, the implications of this report could raise questions about those decisions or even cast them into doubt.

NLRB Attacks Managerial Discretion

Thinking of vesting your managers with discretion? According to a trio of decisions by the National Labor Relations Board (“NLRB”), you may be violating the National Labor Relations Act (“NLRA”) if that discretion would apply to enforcing “access restrictions.”

NLRB Decides that Employer Has Duty to Respond to Union’s Information Request—Even if Requested Information is Irrelevant

In a 2-1 decision in IronTiger Logistics, Inc., the NLRB recently held that an employer has a duty to respond in a timely manner to a union’s information request, even where the requested information is ultimately deemed to be irrelevant.

NLRB is finding ways to implement its Employee Rights Notice posting, in spite of legal challenges.

On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a Facebook posting. But it also found a way to include its Notice of Employee Rights poster in the resolution of the case. Karl Knauz Motors, Inc. Case 13-CA-036452 (Sept. 28, 2012).

April 17th Brings More Bad Luck for NLRB

In the Legal Alert we published on April 16, ("Friday the 13th An Unlucky Day For the NLRB") we referenced the decision of South Carolina District Court Judge David C. Norton last Friday afternoon, which marked the first time the NLRB's proposed notice-posting rule has been invalidated in its entirety. We also predicted that, in light of that April 13th decision, the U.S. Court of Appeals for the DC Circuit (which had been hearing arguments on the appeal of the surviving parts of this rule from another U.S. District Court) now "has an opportunity to lend some clarity to the picture in the days to come."

Unanimous NLRB Rejects Recess Appointment Quorum Argument; Chamber of Commerce's Quickie Election, Quorum Challenge Still Pending

Sandwiched between two recent conflicting U.S. District Court rulings on the question of the National Labor Relations Board's (NLRB) authority to promulgate a notice posting requirement, the NLRB recently turned aside a challenge to the recess appointments of Members Richard Griffin, Terrence Flynn, and Sharon Block. In Center for Social Change, Inc., a refusal to bargain case, the Board unanimously rejected an employer's challenge to the validity of President Obama's January recess appointments in a decision issued on March 29. Although the Board split along party lines over the reasoning, the decision illustrates the often insurmountable hurdle that parties challenging an agency over its own authority to act will face.

Love's Labor Lost: Legal Challenges to President Obama's NLRB Recess Appointments

As anticipated, business groups have begun filing legal motions challenging the legality of President Obama's recess appointment of three members to the National Labor Relations Board. The motions, filed in federal district court in Washington, D.C. on January 13, 2012 by The National Federation of Independent Business (NFIB) and the National Right to Work Foundation (NRWF), claim that President Obama's appointments are illegal because they circumvented the Senate confirmation process. The NFIB's challenge called the action a "brazen circumvention of the Congressional appointment process." The challenges are part of the prior lawsuit filed against the NLRB to prevent the Board from requiring businesses to post information advising workers of their right to form a union.

Responding To The (New) NLRB

For the past 75 years, the National Labor Relations Board (NLRB) has been responsible for conducting union representation elections and investigating unfair labor practice charges. Because the agency is comprised of members who are appointed by the standing President, it has been vulnerable to the occasional pendulum shifts that flow from the political process. That being said, the agency has traditionally steered clear of major controversies by confining itself to the application of long-standing principles that have typically stood the test of time.

Federal District Court Rejects Challenge to President Obama's NLRB Recess Appointments

A federal district court judge today rejected attempts by several business groups to challenge President Obama's recent recess appointments to the National Labor Relations Board (NLRB).

NLRB Nominations Sent to the Senate

On February 13, 2012 President Obama formally sent the nominations of Sharon Block, Terence Flynn, and Richard Griffin, Jr. to the Senate for confirmation as National Labor Relations Board members.

Littler Shareholder Stefan Marculewicz Testifies at Congressional Hearing Addressing NLRB Recess Appointments

Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions.

Congress Responds to NLRB Recess Appointments

As expected, members of the House of Representatives opposed to the President’s recent recess appointments to the National Labor Relations Board have voiced their disapproval legislatively. On January 10, 2012, Rep. Diane Black (R-TN) introduced a resolution formally condemning Obama’s controversial decision to make recess appointments while the Senate was holding periodic pro forma sessions. Although the Department of Justice issued a memorandum opinion (pdf) sanctioning the President’s authority to make these appointments, Rep. Black claimed that “[t]hese appointments are an affront to the Constitution.” According to Black, “the appointments in question were made while the Senate was in pro forma session and the House had not consented to a Senate adjournment,” as is required under article 1, section 5, clause 4 of the U.S. Constitution.

NLRB Recess Appointment Decision Receives First Legal Challenge

The President’s move to seat three new members to the National Labor Relations Board via recess appointment has its first official court challenge. On January 13, 2012, the National Right to Work Foundation (NRTW) along with other business advocacy groups filed a motion (pdf) in the U.S. District Court for the District of Columbia to contest the constitutionality of the President’s actions.

President Bypasses Senate to Make Recess Appointments to the NLRB

On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board, filling vacancies that otherwise would have left the Board without the authority to carry out its functions. Faced with the prospect of losing a quorum upon the expiration of the recess appointment of Craig Becker the day before, the President moved forward with the recess appointments, despite procedural moves in Congress to curb his power to do so.

President Makes Three Recess Appointments to NLRB

On Wednesday, January 4, President Barack Obama announced three recess appointments to the NLRB. They are Democrats Sharon Block and Richard Griffin and Republican Terence F. Flynn. The last time the Board had its full complement of members was in August 2010.

It's All in the Timing: President Obama's Recess Appointments to the NLRB

President Obama, on January 4th, took advantage of the U.S. Senate's recess to appoint three controversial and previously blocked nominees to the vacancies at the National Labor Relations Board (NLRB).

Obama's "Recess" Appointments To NLRB: Will They Stand?

Last week President Barack Obama announced "recess" appointments to the National Labor Relations Board of his three currently-pending Board nominees, two Democrats and one Republican. With these appointments the Board again will be at full strength with five members: three Democrats and two Republicans. The two Board members before the appointments were Chairman Mark Pearce, a Democrat, and Brian Hayes, a Republican. (Member Craig Becker's recess appointment expired on December 31.)

President Obama Announces NLRB Recess Appointments

Yesterday afternoon President Obama announced his intent to recess appoint Sharon Block, Richard Griffin and Terence F. Flynn as Members of the National Labor Relations Board.

NLRB Appointments Spur More Controversy as New Year Begins

The White House has added to the controversy surrounding the National Labor Relations Board and its recent actions by announcing the President intended to make three recess appointments to the agency. Despite the recent request of 47 Republican Senators to President Barack Obama to refrain from making recess appointments between the Sessions of Congress, it was announced that the President would do just that. On January 4, the White House Press Secretary said the President would nominate Sharon Block, Terence F. Flynn and Richard Griffin to fill the three empty seats on the NLRB. They would join Chairman Mark Gaston Pearce and Member Brian E. Hayes, giving Democrats a 3-2 majority on the Board. With the end of Member Craig Becker’s recess appointment on January 3, the Board now lacks a quorum to make decisions.

President Appoints Three to NLRB

The "recess" appointments fill up the Board to 5 members. Guess what? The full Board is not stacked with pro-management Board members. Read the announcement and bios here.

NLRB Wraps Up a Busy Year with More Commotion

While work had slowed down for many during the holiday season, those following the National Labor Relations Board (NLRB) have seen a flurry of activity. On January 4, 2012, President Obama announced his intent to make three new controversial recess appointments to the NLRB. In addition, the Board postponed its new notice posting rule and adopted a final rule amending its election (“R-Case”) procedures. A summary of each of these key developments follows.

Obama Makes Three Recess Appointments to the NLRB

On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment.

NLRB Revises Representation Case Handling Procedures for Two-Member Board

Anticipating the loss of a quorum next week, the National Labor Relations Board has issued a final rule (pdf) revising its representation case certification process. Specifically, the Board is amending its rule requiring the automatic impoundment of representation election ballots when a party files a request for review.

NLRB In Transition as Year Draws to a Close

The NLRB has been in the news as the year draws to an end. Just a few weeks ago the National Labor Relations Board approved a Resolution to move forward with some earlier-proposed changes of rules for union representation election procedures. Within the last two weeks, the Board dismissed the Boeing unfair labor practice complaint, and now, the Board has issued new rules to maintain some semblance of normal operation when the Board loses a three-member quorum, as is about to happen when Congress again goes on recess and the recess appointment of Member Craig Becker (D) ends. With this backdrop, President Obama nominated two members to the Board, but their confirmation by the Senate appears unlikely given the current political environment in Washington.

President Obama Announces Two Nominees to NLRB

Yesterday, President Obama announced his plan to nominate attorneys Sharon Block and Richard Griffin to the National Labor Relations Board.

Obama Names Two New NLRB Nominees

President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s term expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination.

NLRB Issues Rule Governing Procedural Instructions in Anticipation of Losing Quorum

The National Labor Relations Board has issued a new rule (pdf) outlining special procedures governing the filing of certain motions and appeals with the Board in the event it lacks a quorum and thus cannot exercise its full authority.

NLRB Acting General Counsel Solomon Ends Case Against Boeing; Other Challenges Lie Ahead for NLRB

The National Labor Relations Board often toils in anonymity and regularly enjoys periods of time during which no one pays much attention to what it does or the identity of its members. Over the past two years, however, the Democrat-dominated NLRB has been under white hot scrutiny for a variety of reasons including the views of its members (see former Chairman Wilma Liebman and soon-to-be-former Member Craig Becker), its handling of social media issues, its controversial rulemaking initiatives, and its recent reversal of past decisions. In addition, NLRB critics have zeroed in on the the enforcement efforts of the NLRB's Acting General Counsel, Lafe Solomon and, in particular, his efforts to prosecute Boeing for its allegedly unlawful decision to build a plant in South Carolina.

NLRB Issues New Order Anticipating the Loss of One or More Members as Concern Mounts over Potential Hayes Resignation

The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members.

NLRB Concerned It May Lose Quorum; Will Vote On Proposed Election Procedure Rule Amid Signs Of Board Member Conflict

We have written in the past about the National Labor Relations Board's proposed rule to streamline the union election process. On November 18, the NLRB announced that it has scheduled a vote for November 30 on whether to adopt only portions of the proposed rule and to defer the rest of the proposed changes for further consideration. In a press release, the NLRB explained that it was moving forward on portions of the proposed rule due to the possibility that it may soon lose a quorum when Member Becker's recess appointment expires at the end of the current congressional session. The NLRB's press release claims that the November 30 proceedings will be limited to consideration of several provisions designed to reduce unnecessary litigation in the election process.

Deja Vu or Something New? Shrinking NLRB Delegates Its Authority to the General Counsel

It's déjà vu for the National Labor Relations Board. With Member Craig Becker's recess appointment set to expire on December 31, the federal agency responsible for conducting union elections and processing unfair labor practice charges must again prepare for the loss of its required quorum. Upon the expiration of Becker's term, the Board's membership will be reduced to two. Given the Supreme Court's decision last year in New Process Steel v. NLRB – in which the Court held that the NLRB's grant of authority depends on a minimum of three members – the Board must again anticipate the loss of its powers under the National Labor Relations Act, and the resulting stagnation of the agency's highest authority.

Order Grants General Counsel Certain Powers in the Event NLRB is Left with Two Sitting Members

Anticipating that the National Labor Relations Board may be left with only two sitting members come January, the agency has issued an order (pdf) temporarily granting the General Counsel (GC) full authority over litigation matters that would otherwise require Board authorization and the ability to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act (LMRA). Currently, the Board is comprised of Chairman Mark Gaston Pearce and Members Brian Hayes and Craig Becker. Terence F. Flynn’s nomination to fill the vacant Republican seat on the Board is still pending, and Becker’s controversial recess appointment is set to expire at the end of 2011. While President Obama re-nominated Becker to serve a full term, it is virtually assured that the Senate will not confirm him. Procedural maneuvers may prevent the President from making recess appointments, leaving just two sitting members in 2012.

Pro-Union NLRB Presents Challenges to Employers: Employment Law Update - October 2011

The National Labor Relations Board (NLRB) regulates union and management rights in the workplace. Currently under the Obama Administration, the board has two Democrats, one Republican and two vacancies. Recent pro-union cases and proposed rules by the NLRB pose some challenges ahead for employers.

NLRB Postpones Union Rights Posting Deadline

The National Labor Relations Board has postponed from November 14, 2011 to January 31, 2012 the implementation date of its controversial rule requiring employers to post a notice of employees' rights under the National Labor Relations Act. While the Board claims that the decision, which was announced October 5, was made "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses," a federal judge overseeing one of several lawsuits challenging the rule had requested the delay. The postponement suggests that the Obama NLRB is feeling the heat from Congress and the business community over its perceived overreaching.

NLRB Delays Deadline for Posting New Notice

The National Labor Relations Board announced on October 5, 2011, that it will delay the requirement that most private employers in the U.S. post a controversial new notice until January 31, 2012. The Board had issued a Final Rule in August, requiring all employers covered by the National Labor Relations Act to post an 11" x 17" "Notification of Employee Rights under the National Labor Relations Act." At the time, the posting requirement was to become effective 75 days after publication of the Final Rule in the Federal Register, which would have been November 14, 2011.

NLRB Implements its Final Rule Requiring Posting of a Notice Regarding the Right to Organize

In our March 4, 2011 Alert we described the proposed rule of the National Labor Relations Board (NLRB) concerning the posting of a workplace notice informing employees of their rights under the National Labor Relations Act (NLRA). The NLRB has now issued its final rule regarding this notice. The required notice informs employees of their rights to act together to improve wages and working conditions, organize or join a union, bargain collectively, or choose not to take part in any of these activities. The notice also provides examples of unlawful employer and union conduct, and informs workers how to contact the NLRB with questions or complaints.

Congressional Hearing Examines Recent NLRB Actions

During a hearing conducted by the House Committee on Education and the Workforce to address perceived union favoritism by the National Labor Relations Board, a number of witnesses and members of Congress primarily criticized the Board’s recent decisions and regulatory activity. Lawmakers focused their inquiries on the Board’s decision in Specialty Healthcare, in which the Board adopted a new standard for determining appropriate bargaining units, the agency’s proposed expedited election rule, and its final Notification of Employee Rights Under the National Labor Relations Act posting rule. According to Committee Chairman Rep. John Kline (R-MN), the current labor Board “is especially active,” and it is incumbent upon Congress to provide the Board with continued checks and legislative oversight.

House Passes Bill Curbing NLRB's Authority

As expected, the House of Representatives voted 238-186 in favor of a bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), would amend Section 10(c) of the National Labor Relations Act by adding the following provision:

House Passes Bill Curbing NLRB's Authority

As expected, the House of Representatives voted 238-186 in favor of a bill that would prevent the National Labor Relations Board from ordering an employer to close, relocate, or transfer its operations under any circumstances. The Protecting Jobs From Government Interference Act (H.R. 2587), introduced on July 19 by Rep. Tim Scott (R-SC) and co-sponsored by Reps. John Kline (R-MN), Phil Roe (R-TN), Joe Wilson (R-SC), and Trey Gowdy (R-SC), would amend Section 10(c) of the National Labor Relations Act by adding the following provision:

Hurricane Wilma Finally Blows Away

No, the National Weather Service has not reached the "w's" on its list of hurricane names for the year (and hopefully will not). But Chairman Wilma Liebman left the National Labor Relations Board on August 27, and employers will be dealing with the aftermath of "Hurricane Wilma" for many years to come. She will not soon be forgotten because of the three precedent-setting cases decided on the last business day of her term.

Aggressive NLRB Takes On Handbook Policies And More

In previous issues of The Employment Law Authority, we have stressed that employers must ensure that their handbooks are scrutinized and updated to ensure compliance with the National Labor Relations Act (NLRA) and other federal and state laws. We also have warned that the reconstituted National Labor Relations Board (NLRB) has taken on labor reform and shifted the focus from legislative action to administrative changes. In two recent NLRB decisions, the Board has given merit to both of our forecasts. These deci-sions have shed more light on the types of drastic changes the new Board will undertake.

Reconstituted NLRB Moving Quickly To Enact Reform Agenda

The November 2010 election results appear to have stalled attempts to reform national labor policy through federal legislation. The focus of the reform effort has quickly shifted from legislative action - seeking passage of the Employee Free Choice Act (EFCA) and other amendments to the National Labor Relations Act (NLRA) - to equally significant administrative and regulatory changes enacted directly by the National Labor Relations Board (NLRB).

NLRB Changes Its Approach to Allow for Electronic Unfair Labor Practice Notices and Daily Compound Interest on Backpay Awards

Under the National Labor Relations Act, the National Labor Relations Board can require employers to post notices regarding their violations of the Act, remedies ordered by the Board, and the rights employees enjoy under the Act. Traditionally, these notices have been prepared in paper format and posted on bulletin boards or similar areas where employees will likely see them. In a recent case, J. Picicini Flooring, the Board changed its approach and will now require employers who customarily communicate with employees by electronic means to provide electronic notices to those employees. For most employers, this will mean distributing notices through e-mail or posting them on an internet or intranet website, but the posting obligation could encompass other forms of electronic communication depending upon how the employer communicates with employees. Employers should understand that electronic notice posting does not replace the traditional paper notice—it simply adds an additional layer of notice for employers that primarily use electronic communication.

NLRB Activism Picks Up Speed

Predictions of a wave of pro-union NLRB decisions, and new rules that could profoundly change the direction of modern labor law, appear to be coming true. In the weeks preceding the midterm elections, the Board has begun changing national labor policy administratively.

NLRB General Counsel's New Guidelines Regarding Injunctive Relief: Is this "EFCA Lite"?

Last week, the Acting General Counsel for the National Labor Relations Board issued new guidelines to all field offices regarding injunctive relief under section 10(j) of the National Labor Relations Act. Normally, General Counsel memos do not attract much attention. This one, however, may deserve closer scrutiny because it looks in some respects like the stagnant Employee Free Choice Act (EFCA) that was introduced in the House and Senate in early 2009.

NLRB Issues Numerous Controversial Anti-Business Decisions

After a slow start due to the Senate confirmation fight over National Labor Relations Board (NLRB) Member Craig Becker (eventually given a recess appointment by President Barack Obama) and the need to reconsider scores of decisions from the former two-Member Board (as a result of the U.S. Supreme Court’s New Process Steel decision), the NLRB has now begun to issue significant decisions.

Organized Labor's Focus Shifts From EFCA To The NLRB.

As we approach the November 2nd mid-term Congressional elections, chances for passage of the Employee Free Choice Act (EFCA) grow dimmer and dimmer. The union lobby lacks the votes in the Senate to stop a filibuster to take EFCA to the floor, and members in both Houses of Congress are reluctant to take on tough labor votes so close to the election. Now, even passage of an EFCA alternative bill, which might allow "quickie" union representation elections within two or three weeks from a union petition and include limitations on free speech rights of employers, seems unlikely before the November election (but watch the post-election "lame duck" session).

Supreme Court Says Two Is Too Few

In a stunning blow to the National Labor Relations Board, the Supreme Court, in a 5-4 decision, invalidated more than 500 decisions issued by the Board during a 27-month period in which the Board was operating with only two members. The decision, issued yesterday, is New Process Steel, L.P. v. NLRB.

Supreme Court Rules That Two-Member NLRB Did Not Have Authority To Act.

On June 17, 2010 the U. S. Supreme Court ruled that the National Labor Relations Board (NLRB) was not authorized to act during the 27-month period after December 2007 when the Board had only two of its five members. The case required the Court to interpret the language of the National Labor Relations Act (NLRA), which provides for a five-member Board, but permits delegation to three-member panels, and also contains an exception for two-member quorums.

Supreme Court Hands Down Blockbuster Decision Invalidating Two-Member NLRB Decisions; Effect for Employers Remains Uncertain.

The Supreme Court issued its long-awaited decision in New Process Steel, L.P.v. NLRB, ruling that the National Labor Relations Board (the Board) does not have the authority to issue decisions without at least three members currently sitting on the Board. The Court’s decision invalidates in one fell swoop some 600 decisions that had been issued by the Board during a recent 27-month period in which the Board had only two members. While the Court’s decision is not expected to significantly impact the eventual outcome of those particular cases, the decision may reenergize the drive by Democrats in Congress to appoint Craig Becker and other union-friendly persons to full terms on the Board, thus creating a dramatic pro-union shift in the labor law landscape for years to come.

Supreme Court Invalidates Decisions Made by Two-Member NLRB Panel.

In a decision this morning, the U.S. Supreme Court ruled that two-member decisions made by the National Labor Relations Board (NLRB) are invalid, necessitating 600 decisions by the Board to be reconsidered. The NLRB is a five-member board when fully appointed, and statute calls for three-member quorums.

U.S. Supreme Court Invalidates 600 NLRB Decisions.

Labor-law attorneys had quite a day. The U.S. Supreme Court, in an unexpected decision announced today, has held that the two members of the 5-person National Labor Relations Board (NLRB), who remained after the other members’ terms expired and Congress failed to act on proposed new members did not have the statutory authority to issue rulings. As a result, nearly 600 cases have been voided. The four strict constructionists on the Court were joined by departing Justice John Paul Stevens, who wrote the opinion. Justice Anthony Kennedy, usually a swing vote, wrote a dissenting opinion joined by the liberal wing of the Court. The decision is New Process Steel v. National Labor Relations Board (08-1457).

President Obama Makes Key NLRB Appointments

On March 27, 2010, President Obama bypassed the Senate and made two recess appointments to the National Labor Relations Board (NLRB). These recess appointees will serve at least until the end of the next session of Congress-December 31, 2011. President Obama appointed Craig Becker, the highly controversial Service Employees International Union (SEIU) and AFL-CIO attorney, whose nomination to the NLRB has generated widespread controversy and prompted strong opposition from employers. Becker believes that employers should have no role in union organizing campaigns and representation elections. President Obama also named Mark Pearce, a New York labor lawyer and union side advocate, to fill the fourth seat on the NLRB. With these appointments, the NLRB-operating with a Democratic majority for the first time since 2001-is poised to reconsider several decisions from the last decade which are largely viewed as pro-management.

NLRB Vacancies Finally Filled… By Union Attorneys.

As the healthcare drama recedes from center stage, the next labor reform domino has already fallen. For nearly two years, the National Labor Relations Board (NLRB) has operated with only two of its five seats filled. But with the commencement of Easter recess on March 27, President Obama moved swiftly to change that by unilaterally appointing SEIU counsel Craig Becker and union attorney Mark Pearce to seats on the Board.

Recess Appointments Give Unions a 3-1 Majority at the NLRB and Fill Vacancies at the EEOC.

On Saturday, March 27, which was the first day of the congressional Easter Recess, President Barack Obama announced the recess appointment of highly controversial SEIU and AFL-CIO lawyer Craig Becker from Washington, D.C. and practicing union lawyer Mark Pearce from Buffalo, N.Y., to be Board Members on the five-member National Labor Relations Board (NLRB). The two recess appointees will join current Chair Wilma Liebman to give the NLRB a three-member Democratic majority of former union-side lawyers. Under a recess appointment, Becker and Pearce will serve until the end of the next session of Congress, that is, until the end of 2011.

Craig Becker: Unions' Man on the NLRB.

On July 9, 2009, President Obama nominated Craig Becker to be a member of the National Labor Relations Board (NLRB). This is bad news for employers. Becker goes beyond espousing pro-labor positions; he occupies the very fringe of the left wing of the labor movement. As a member of the NLRB, he would be in a position to radically change the rules for retailers and all other businesses.

NLRB Asks Supreme Court to Uphold Two-Member Decisions.

On September 29, 2009, the National Labor Relations Board (NLRB) asked the Supreme Court to resolve a split in the United States Circuit Courts of Appeals as to whether a panel of only two members of the NLRB has the authority to issue final orders under the National Labor Relations Act (NLRA). As of today, three Circuit Courts - the 1st, 2nd, and 7th Circuits - have ruled that a two-member panel of the NLRB may issue decisions, while the District of Columbia Circuit has held that two-member decisions are illegitimate.

The Pendulum And the Pit.

In late April, less than 100 days after his term began, President Obama appointed a pair of union-side labor lawyers – both Democrats – to fill two of the three vacancies on the National Labor Relations Board (NLRB). Craig Becker currently serves as Associate General Counsel to the Service Employees International Union (SEIU); in addition, he advises the AFL-CIO in a similar capacity. He is a graduate of the Yale Law School, and except for a brief stint teaching at UCLA Law School, he has been a practicing labor lawyer most of his career.

D.C. Circuit Invalidates Two-Member NLRB Decision.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit has invalidated an opinion by the National Labor Relations Board on the ground that the decision was issued by only two Board members. Writing for the court in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, Chief Judge David B. Sentelle held that the two-member Board acted beyond its lawful authority and that Section 3(b) of the National Labor Relations Act requires a three-member quorum "at all times."

Obama to Nominate Pro-Union Lawyers to NLRB.

President Barack Obama has announced his intention to nominate two new members of the National Labor Relations Board. Both nominees are Democrats, and both are attorneys who currently represent labor unions.

Fasten Your Seatbelts, It's Going To Be A Bumpy Night!

President Barack Obama has officially nominated Wilma B. Liebman to be the new chair of the National Labor Relations Board, marking an important policy change. While a member of the NLRB, Liebman has openly disagreed with the Bush Administration on labor-management relations. Thus, her appointment is one more indication that employers will face a different world under the Obama Administration.