Total Articles: 64
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 Recess Appoints Three Members to NLRB
Executive Summary: In what House Speaker John Boehner called "an extraordinary and entirely unprecedented power grab by President Obama," on January 4, 2012 the President announced his intent to recess appoint Democrats Sharon Block and Richard Griffin and Republican Terence F. Flynn to the National Labor Relations Board (NLRB). These appointments will restore a quorum to the Board, which fell to two members when Member Craig Becker's recess appointment expired January 3, 2012.
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 Obama Makes Three Recess Appointments to the National Labor Relations Board
This week, President Obama made three recess appointments to the National Labor Relations Board. The appointments return the Board to its full slate of five members for the first time since August, 2010. This fact is important because the Board cannot rule on cases or create new regulations without a quorum of at least two members. The Board lost its quorum on Tuesday when the term of Board member Craig Becker came to an end.
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 Announces Plan to Nominate Two NLRB Members; Board Publishes Procedural Rule for Periods When it Lacks Quorum
Executive Summary: Despite Republican threats to block any appointments to the National Labor Relations Board (NLRB), on December 14, 2011, President Obama announced he intends to nominate Sharon Block and Richard Griffin as Board members.
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 noticeit 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 Courts New Process Steel decision), the NLRB has now begun to issue significant decisions.
NLRB Poised to Overturn Two Critical Bush-Era Board Decisions.
Recently, the National Labor Relations Board signaled its willingness to overturn two Bush-era decisions on union representation. We previously outlined how the Obama-appointed Board, now chaired by Wilma Liebman, likely would reconsider and overrule the 2007 NLRB decision in Dana Corp., 351 NLRB 434 (2007), regarding employees' right to challenge the union's representation after a company's voluntary recognition of the labor union. (See our July 23, 2009 Legal Alert, "Key NLRB Precedents Likely to Fall Under Liebman Board," http://www.fordharrison.com/shownews.aspx?show=5148.)
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).
Senate Confirms Pearce and Hayes as Board Members.
On June 22, 2010, the Senate confirmed Mark Pearce and Brian Hayes to serve as members of the National Labor Relations Board (the "Board"). Pearce has been serving on the Board since April 7, 2010, when he was recess appointed by President Obama. Pearce's term will run through August 27, 2013. Hayes was the labor policy director for the Republicans on the Senate Health, Education, Labor and Pensions Committee prior to his appointment to the Board. His term expires December 16, 2012.
Supreme Court Holds that Two-Member NLRB Lacked Authority to Issue Rulings.
In a 5-4 decision, the U.S. Supreme Court has held that the National Labor Relations Board (NLRB) improperly delegated its authority to a two-member group after the expiration of two Board members' appointments in December 2007. See New Process Steel v. National Labor Relations Board (June 17, 2010). Accordingly, the two-member Board did not have authority to issue decisions on unfair labor practice and representation cases.
Labor Board Lacked Authority to Issue More Than 600 Decisions.
On June 17, 2010, the U.S. Supreme Court ruled
that the National Labor Relations Board did not
have a statutory quorum when it decided over 600
cases during a two-year period. A signifi cant
number of these cases may be reopened.
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 Courts 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 Courts 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.
President Announces Recess Appointment of Craig Becker to NLRB.
On March 27, 2010, President Obama announced the recess appointment of Craig Becker to the National Labor Relations Board (NLRB). Becker's appointment will last until the end of 2011 when the Senate finishes its next term. President Obama also recess- appointed Democrat Mark Pearce to the Board. Pearce was a partner at a union-side law firm in Buffalo, New York. With the recess appointments, the NLRB now consists of 3 Democrats and 1 Republican.
Senate Fails to Confirm Becker as NLRB Member, Could a Recess Appointment Be Lurking?
On February 9, 2010 the Senate failed to invoke cloture on Craig Becker's nomination to the National Labor Relations Board (NLRB) by a vote of 52-33. There is a possibility that President Obama could make a recess appointment for Becker when the Senate goes into recess on President's Day. If that were to happen, Becker's appointment to the Board would last until the end of 2011.
Supreme Court to Address Whether Two-Member Panel of National Labor Relations Board has Authority to Hear Cases and Issue Orders.
The U.S. Supreme Court has agreed to review the Seventh Circuit's decision in New Process Steel, L.P. v. NLRB to determine whether the National Labor Relations Board (NLRB) has authority to decide cases with only two sitting members.
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.
Key NLRB Precedents Likely to Fall Under Liebman Board.
Last week, we began our series NLRB Watch which will analyze 10 critical decisions issued by the Bush-appointed National Labor Relations Board ("NLRB" or "Board") that likely will be overturned in the next few years if reconsidered by an Obama-appointed Board now chaired by Wilma Liebman. In most of the critical Bush-era decisions that favored employers, then Board member Liebman dissented, challenging the reasoning and conclusions reached by the Board majority. Careful analysis of Liebman's dissenting opinions in these major decisions provides a legal roadmap charting the likely course the Liebman Board will take if it is able to reconsider these issues.
Key NLRB Precedents Likely to Fall Under Liebman Board.
Earlier this year we created "e-mail alerts" to keep you better informed of legislative changes and related legal developments in labor and employment law that will significantly impact both union and non-union employers during 2009. We are gratified with the positive feedback we have received from many of our clients and friends on this series of e-alerts. Based on suggestions we received and encouragement from many in our firm, we are expanding the original framework to address the myriad of potential changes in labor law that we will likely see over the next few years from the National Labor Relations Board (NLRB or Board), the federal agency which administers the National Labor Relations Act (NLRA).
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.
President Obama Announces Nominations to fill NLRB Vacancies.
President Obama has announced the nominations of Craig Becker and Mark G. Pearce to fill two vacant seats on the National Labor Relations Board.
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.
