Total Articles: 110
Littler Mendelson, P.C. • October 21, 2019
On October 10, 2019, the National Labor Relations Board issued an important decision in LA Specialty Produce Co., 368 NLRB No. 93 (2019). In its first ruling applying the standard established in The Boeing Co., 365 NLRB No. 154 (2017) for determining the validity of rules, policies and handbook provisions under the National Labor Relations Act (NLRA), the Board majority simplified and curtailed its analysis, and made short work of challenges to rules pertaining to confidential client and vendor lists and responses to media inquiries made on behalf of the employer. The Board concluded both types of rules are categorically lawful.
Jackson Lewis P.C. • September 23, 2019
National Labor Relations Board Chairman John Ring has again informed Democratic leaders of the U.S. House of Representatives Committee on Education and Labor that the Agency will not release documents they requested related to NLRB members’ recusals from Board cases.
Ogletree Deakins • December 11, 2018
On December 7, 2018, National Labor Relations Board (NLRB) General Counsel Peter Robb issued General Counsel Memorandum 19-02, Reducing Case Processing Time (GC 19-02). The memorandum describes significant changes to unfair labor practice (ULP) charge investigations conducted by the agency’s regional offices. These changes will affect virtually every charge handled by the agency.
Jackson Lewis P.C. • August 30, 2018
Mark Gaston Pearce has been nominated by President Donald Trump to serve a third term on the National Labor Relations Board. Pearce, a 2010 recess-appointee under then-President Barack Obama, was reappointed to a second term in 2013. That term expired on August 27, 2018. Pearce’s nomination now heads to the Senate for consideration.
Jackson Lewis P.C. • July 17, 2018
The National Labor Relations Board has announced it will begin a pilot program to encourage parties to use its Alternative Dispute Resolution program.
Fisher Phillips • April 15, 2018
With the Senate’s confirmation of John Ring to the National Labor Relations Board on April 11 and the administration’s subsequent announcement on April 12 that he will be designated as the agency’s Chair, the Board is once again in a position to restore balance to the nation’s labor laws. During most of the eight years of the Obama administration, the Board was stocked with a majority of Democratic appointees, and the NLRB issued decision after decision tilting the playing field decidedly in favor of unions and workers. However, now that the NLRB has a full complement of five members, three of whom were nominated by President Trump, changes are soon to follow. What do employers need to know about this latest development?
Franczek Radelet P.C • April 12, 2018
Today, the Senate, voting along party lines 50 to 48, confirmed John Ring as a member of the National Labor Relations Board. With Ring’s confirmation, the five-member NLRB is now fully staffed with a 3-2 Republican majority membership.
Nexsen Pruet • March 29, 2018
The National Labor Relations Board (NLRB) is under new leadership and has begun returning the nation to a more balanced labor policy. The NLRB is responsible for enforcing the National Labor Relations Act (NLRA), which governs labor management relations at unionized and non-unionized employers. Under the new administration, the NLRB has returned to a more moderate path for labor relations issues and begun reversing some pro-union rulings generated during the prior administration. For example, the NLRB revised its view of “micro units” and reduced its scrutiny of standard employment policies. At the same time, however, the NLRB recently stumbled regarding the joint employment doctrine.
Jackson Lewis P.C. • March 18, 2018
The Senate Health, Education, Labor and Pensions (HELP) Committee has confirmed Republican John Ring to the National Labor Relations Board by a 12-11 vote. The next step is a vote by the full Senate.
Jackson Lewis P.C. • March 07, 2018
In response to new National Labor Relations Board General Counsel Peter Robb’s proposed changes to case processing and regional office structure, two groups of senior managers and organizations representing the Board’s front-line staff deemed Robb’s ideas an “existential threat” aimed to destroy the NLRB from the inside. A group of NLRB associate regional directors indicated the potential moves have caused general anxiety Agency-wide and have noticeably hurt morale in the field.
Jackson Lewis P.C. • January 22, 2018
Bloomberg BNA reports that 99.4 percent of the National Labor Relations Board’s employees (1,426 out of 1,435) are furloughed beginning January 22, 2018, according to the Board’s contingency plan.
Nexsen Pruet • January 04, 2018
As we enter the New Year, the National Labor Relations Board (NLRB) is under new leadership and has begun returning the nation to a more balanced labor policy. The NLRB is responsible for enforcing the National Labor Relations Act (NLRA), which governs labor management relations at unionized and non-unionized employers. The NLRB’s composition and leadership fluctuate based on presidential elections. Under the new administration, the NLRB has returned to a more moderate approach to labor relations issues and begun reversing some pro-union rulings generated during the prior administration. Recently, in December 2017, the NLRB changed course on several issues important to employers, including:
Fisher Phillips • January 02, 2018
No other agency so radically changed the law under the Obama Administration; nor galvanized so much management-side resistance as the National Labor relations Board (NLRB). So it seems appropriate that the NLRB would stagger us with numerous end-of-the-year changes in a TWO-WEEK PERIOD.
Jackson Lewis P.C. • December 27, 2017
Philip A. Miscimarra was sworn in as a Member of the National Labor Relations Board on August 7, 2013, for a four-year term. On April 24, 2017, President Donald Trump appointed Miscimarra NLRB Chairman.
Nexsen Pruet • December 15, 2017
Peter Robb, the newly appointed general counsel for the National Labor Relations Board (NLRB), issued a memorandum on December 1, 2017 that suggests he may revisit some of the NLRB’s policy decisions rendered under the Obama administration. A few areas of interest in his relatively brief memorandum are highlighted below.
Jackson Lewis P.C. • December 06, 2017
In a sweeping five-page Memorandum, new National Labor Relations Board General Counsel Peter B. Robb has directed NLRB Regional Offices to submit to his Division of Advice for review cases involving “significant legal issues.” The Board’s chief prosecutor’s guidance describes “significant legal issues” to include many Obama Board decisions that both overruled precedent and “involved one or more dissents.”
Ogletree Deakins • December 06, 2017
The National Labor Relations Board’s (NLRB) new general counsel wasted no time in issuing comprehensive guidelines to the agency unequivocally indicating that the era of unbridled activism and overreach by the Board will likely end. On December 1, 2017, Peter B. Robb issued General Counsel (GC) Memorandum 18-02, providing employers and employees with the proverbial “light at the end of the tunnel.” After eight years of reversing decades of legal precedent and skewing the playing field decidedly against employers, the NLRB seems headed toward creating a less polarized labor environment.
Jackson Lewis P.C. • November 05, 2017
Richard F. Griffin, Jr.’s term as National Labor Relations Board (NLRB) General Counsel (GC) was marked by a dogged defense and pursuit of bolstering the rights of unions and employees under the National Labor Relations Act (NLRA).
Jackson Lewis P.C. • October 25, 2017
A critical National Labor Relations Board nomination was approved by the Senate’s Committee on Health, Education, Labor and Pensions on October 18, 2017, according to Bloomberg BNA. Management-side labor attorney Peter Robb’s nomination to be the Board’s next General Counsel has been long-anticipated by those interested in seeing changes in the agency’s doctrinal jurisprudence. The HELP Committee’s approval of Robb positions him for consideration by the full Senate.
Ogletree Deakins • September 26, 2017
September 25, 2017, marks a significant turning point in the recent saga of the National Labor Relations Board (NLRB). Eight months into the Trump administration, the U.S. Senate confirmed William J. Emanuel to fill the long-vacant and tie-breaking fifth seat on the Board. His elevation to the Board, along with fellow Republican Marvin E. Kaplan, finally gives Chairman Philip A. Miscimarra a majority on the Board. A rebalancing can now begin after eight years of dissents filed by Member Miscimarra and former members Harry I. Johnson III and Brian E. Hayes (who is now a shareholder in Ogletree Deakins’ Washington, D.C., office and the author of the Practical NLRB Advisor).
Jackson Lewis P.C. • September 26, 2017
Management-side lawyer William Emanuel was confirmed late on September 25, 2017 by the United States Senate to fill the last vacant seat on the National Labor Relations Board. Republican Marvin Kaplan was confirmed on August 2, 2017.
Jackson Lewis P.C. • September 25, 2017
In what appears to be the first time he has participated in a National Labor Relations Board decision, new NLRB Member Marvin E. Kaplan, a Republican, has voted to deny an employer’s request to stay an election. He voted with Democrat Mark Gaston Pearce and contrary to Republican Philip Miscimarra. Kaplan was sworn in on August 10, 2017, for a term ending August 27, 2020.
Jackson Lewis P.C. • September 20, 2017
As expected, Peter B. Robb has been nominated by President Donald Trump to become the National Labor Relations Board’s next General Counsel. Robb is a long-time management labor law attorney.
Ogletree Deakins • August 13, 2017
In another example of a federal circuit court taking the National Labor Relations Board (NLRB) to task for stretching federal labor law past the point of recognition, the Eight Circuit Court of Appeals recently refused to enforce a NLRB order reinstating several former employees. The former employees were discharged after they posted flyers around town insinuating their employer was selling unsafe, germ-laden sandwiches as part of a campaign to enhance their sick leave. MikLin Enterprises, Inc. v. NLRB, No. 14-3099 (July 3, 2017).
Jackson Lewis P.C. • August 09, 2017
Reportedly citing personal reasons, National Labor Relations Board Chairman Philip Miscimarra has declined consideration for a second term on the Board. Miscimarra’s term expires on December 16, 2017, and the Board is facing a slashed budget.
Jackson Lewis P.C. • August 06, 2017
The United States Senate has narrowly confirmed former counsel to the Commissioner of the Occupational Safety and Health Review Commission Marvin Kaplan to one of two vacant seats on the National Labor Relations Board. Kaplan’s confirmations leaves one vacant seat on the five-member Board.
Ogletree Deakins • August 03, 2017
On August 2, 2017, the Senate confirmed Marvin Kaplan as a member of the National Labor Relations Board (NLRB). Kaplan, whose confirmation was on a strict party-line vote of 50 to 48, will join fellow Republican and Chair, Philip A. Miscimarra, as well as Democrats Mark Gaston Pearce and Lauren M. McFerran. A vote on President Trump’s other NLRB nominee, William Emanuel, has yet to be scheduled. With Kaplan in place, Emanuel’s confirmation would eventually give the NLRB its first Republican majority in roughly a decade. What would Republican control of the NLRB look like? Check out our analysis in our recent article, “President Nominates Two to the NLRB: Will Newcomers Bring Much-Needed Change to the Agency?”
Jackson Lewis P.C. • July 07, 2017
President Donald Trump has nominated management labor attorney William Emanuel to fill one of the two vacant seats on the five-member National Labor Relations Board.
Ogletree Deakins • June 28, 2017
On June 27, 2017, President Trump nominated labor attorney William J. Emanuel to fill one of two vacancies to the National Labor Relations Board (NLRB).
Jackson Lewis P.C. • May 30, 2017
President Donald Trump has released a budget proposal reducing the National Labor Relations Board’s funding in fiscal year 2018 by nearly six percent. It also calls for significant staff reductions at a time when the agency’s caseload is projected to increase.
Jackson Lewis P.C. • May 12, 2017
Attorneys Marvin Kaplan and William Emanuel will be nominated by President Donald J. Trump to fill the two openings on the five-member National Labor Relations Board, according to the Daily Labor Report. Trump plans to nominate Kaplan and Emanuel by June, following completion of their FBI background checks.
Jackson Lewis P.C. • May 02, 2017
The National Labor Relations Board’s wish that its budget for fiscal year 2017 be increased over its FY 2016 budget apparently will not be granted.
Jackson Lewis P.C. • March 28, 2017
The National Labor Relations Board has denied petitions to revoke subpoenas that were issued by an NLRB Regional Director to two companies seeking information about a possible joint employer relationship between the two employers. The subpoenas arose out of the investigation of several unfair labor practice charges filed by a union against the companies, alleging they were joint employers (as well as alter egos and a single employer).
Franczek Radelet P.C • March 27, 2017
The National Labor Relations Board’s General Counsel is an important position. The General Counsel is, among other things, the NLRB’s chief prosecutor and sets the Agency’s prosecutorial agenda. The GC is appointed by the President and must be confirmed by the Senate.
Littler Mendelson, P.C. • March 23, 2017
On March 21, 2017, the U.S. Supreme Court affirmed the D.C. Circuit’s holding that Lafe Solomon, who was appointed by former President Barack Obama to serve as acting general counsel to the NLRB in June 2010 when the prior general counsel resigned his position, was prohibited by the Federal Vacancies Reform Act (FVRA) from continuing to serve in that role following his January 5, 2011 nomination to the general counsel position. The decision in NLRB v. SW General does not invalidate all NLRB decisions issued during Solomon’s tenure, and it is not comparable in scope to the Court’s 2014 decision in Noel Canning.
Ogletree Deakins • March 23, 2017
On March 21, 2017, the Supreme Court of the United States ruled that the Federal Vacancies Reform Act of 1998 (FVRA) prevents a person nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity.
FordHarrison LLP • March 22, 2017
Executive Summary: The U.S. Supreme Court has held that Lafe Solomon did not validly serve as Acting General Counsel for the National Labor Relations Board (NLRB) after former President Barak Obama nominated him to permanently fill that position in January 2011. See National Labor Relations Board v. SW General Inc., No. 15–1251 (March 21, 2017) (6-2). According to the Court, the provisions of the Federal Vacancies Reform Act (FVRA) precluded Solomon from serving as acting General Counsel after his nomination.
Jackson Lewis P.C. • March 22, 2017
Former National Labor Relations Board Acting General Counsel Lafe Solomon’s continuing to serve as Acting NLRB General Counsel after President Barack Obama nominated him to the General Counsel position violated the Federal Vacancies Reform Act of 1998, the U.S. Supreme Court has decided in a 6-2 decision. National Labor Relations Board v. SW General, Inc., dba Southwest Ambulance, No. 15-1251 (Mar. 21, 2017).
Fisher Phillips • March 21, 2017
In a decision released today, a 6 to 2 majority of the Supreme Court restricted the president’s power to fill high-level administrative positions without the Senate’s advice and consent, handing a victory to an employer in a labor dispute. The decision has wide-ranging implications for this and future presidents’ ability to choose nominees for important positions in administrative agencies such as the National Labor Relations Board (NLRB), and continues a recent trend of limiting presidential power recently seen in the Court’s June 2016 immigration decision.
Jackson Lewis P.C. • February 26, 2017
President Donald J. Trump has narrowed his list of candidates to fill the two open seats on the five-member National Labor Relations Board to Marvin Kaplan, William Emanuel, and Douglas Seaton, according to Bloomberg BNA. Emanuel and Seaton are labor attorneys and Kaplan is counsel to the Commissioner of the Occupational Safety and Health Review Commission.
Jackson Lewis P.C. • February 21, 2017
R. Alexander Acosta, President Donald Trump’s nominee as the next Secretary of Labor, served on the National Labor Relations Board from December 17, 2002, to August 21, 2003. He was confirmed by the United States Senate on November 22, 2002, having been nominated by President George W. Bush. Acosta, a Republican, served with fellow Board members Wilma Liebman (Democrat), Peter Schaumber (Republican), Dennis Walsh (Democrat), and Chairman Robert Battista (Republican). During his term, Acosta participated in the issuance of more than 120 opinions.
Littler Mendelson, P.C. • February 20, 2017
President Trump announced today that he intends to nominate R. Alexander Acosta as the Secretary of Labor. Mr. Trump’s initial nominee for the position, Andrew Puzder, withdrew his candidacy yesterday.
Ogletree Deakins • January 27, 2017
On January 26, President Donald Trump announced the designation of current National Labor Relations Board Member Philip Miscimarra as the Board's Acting Chairman, replacing former Board Chairman Mark Gaston Pearce. Miscimarra is the lone Republican on the Board along with Democrats Pearce and Lauren McFerran. Currently there are two vacancies on the Board, which will be filled by Republican nominees to reconstitute a Board majority from the president's political party, as required by the National Labor Relations Act.
Jackson Lewis P.C. • May 02, 2016
Board Member Kent Y. Hirozawa has been reappointed by President Barack Obama to a second term on the National Labor Relations Board, according to the White House.
Ogletree Deakins • April 22, 2016
On March 22, 2016, National Labor Relations Board (NLRB) General Counsel Richard Griffin released Memorandum GC 16-01, entitled "Mandatory Submissions to the Division of Advice." The memorandum instructs the Board's regional attorneys to submit certain high profile cases to the general counsel's Division of Advice before taking action. As such, the memorandum reflects those priority areas in which the general counsel is likely to seek to change the law.
Jackson Lewis P.C. • March 22, 2016
The National Labor Relations Board’s General Counsel has directed the Board’s regional offices to institute cost-cutting measures in light of a significant budget deficit facing the agency for the balance of fiscal year 2016 (ending September 30).
Littler Mendelson, P.C. • March 15, 2016
On March 9, 2016, the Office of the General Counsel issued an operations memorandum (OM-16-09) to the NLRB’s regional offices directing them to implement cost-saving measures to address a significant budget deficit facing the agency. The measures are similar to those adopted in recent fiscal years, and include instructions to redouble existing efforts to obtain settlements in unfair labor practice cases; promote election agreements in representation (election) cases; and reduce litigation expenses with some common-sense efficiencies.
Jackson Lewis P.C. • August 20, 2015
Vacating a Board order adopting an Administrative Law Judge’s decision holding that an employer violated Sections 8(a)(1) and (5) of the National Labor Relations Act by ceasing to pay longevity pay under a collective bargaining agreement between the employer and the union representing its employees, the U.S. Court of Appeals for the D.C. Circuit has held that Acting General Counsel Lafe Solomon could not have lawfully delegated authority to an NLRB Regional Director to issue the underlying unfair labor practice complaint against Southwest Ambulance because Mr. Solomon, at the time, was not lawfully appointed as the Board’s Acting General Counsel. SW General, Inc. v. National Labor Relations Board, No. 14-1107, 2015 U.S. App. LEXIS 13812 (D.C. Cir. Aug. 7, 2015).
Jackson Lewis P.C. • August 03, 2015
In a case with potentially far-reaching implications, the National Labor Relations Board has issued a decision invalidating a confidentiality policy similar to that applied by many employers during workplace investigations. Banner Health System d/b/a Banner Estrella Medical Center, 362 NLRB No. 137 (June 26, 2015). The decision recapitulates a 2012 Board determination (discussed here) which was rendered invalid by the Supreme Court’s holding in NLRB v. Noel Canning in 2014.
Franczek Radelet P.C • November 05, 2014
Last week, the National Labor Relations Board found that HTH Corporation had committed multiple violations of the National Labor Relations Act and went to extraordinary lengths to craft a remedy for the employer’s “egregious and pervasive” unfair labor practices. The Board’s decision on the merits of the unfair labor practice charges was relatively routine; its remedy for the violations was not.
FordHarrison LLP • October 27, 2014
Since the U.S. Supreme Court's landmark decision in Republic Aviation v. NLRB almost seventy years ago, courts and the National Labor Relations Board have been weighing employers' property rights against union rights under federal labor law in determining whether to allow union organizers access to work sites.
Franczek Radelet P.C • July 15, 2014
The White House announced on Friday that it will re-nominate former Member Sharon Block to the NLRB, likely to replace Nancy Schiffer, whose appointment expires later this year. Block was one of the recess appointees to the Board that the Supreme Court held to be unconstitutional in its Noel Canning decision.
Goldberg Segalla LLP • July 15, 2014
As part of an announcement of 14 administration appointments issued by the White House on July 10, 2014, President Barack Obama announced that he was nominating pro-labor Democrat Sharon Block — currently serving as Senior Counselor in the Office of the Secretary at the Department of Labor — to a term as a member of the National Labor Relations Board (NLRB) starting on December 17, 2014. Once confirmed, Block will hold an NLRB term that does not expire until December 16, 2019, and keep the board in the control of pro-labor Democrats until member Kent Y. Hirozawa’s term expires on August 27, 2016.
FordHarrison LLP • June 27, 2014
In a long-awaited decision, the U.S. Supreme Court has held that President Obama's recess appointments of Members Block, Griffin, and Flynn to the National Labor Relations Board (NLRB) on January 4, 2012, were unconstitutional. See NLRB v. Noel Canning (June 26, 2014). Although the Court broadly interpreted the President's power under the Recess Appointments Clause, it held that the three-day session during which the appointments were made was too short to fall within the Clause. Accordingly, the Court found that the President lacked the authority to make these appointments. Although the positions held by these members have since been filled by validly appointed members, the decision calls into question the validity of hundreds of Board opinions issued during the time these members served because the Board lacked a valid quorum during that time.
Franczek Radelet P.C • June 27, 2014
As we reported to you in March 2013, in Noel Canning v. NLRB, the U.S. Court of Appeals for the DC Circuit ruled that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who resigned prior to DC Circuit decision), and Sharon Block to the National Labor Relations Board (NLRB) were unconstitutional because they did not occur during an inter-session recess of the Senate. Without those three members, the DC Circuit held that the NLRB did not have a quorum and could not act lawfully, calling into question the continuing validity of literally hundreds of NLRB decisions issued between January 3, 2012 (when Member Becker’s term ended) and August 2013, when the current NLRB members were confirmed by the Senate.
Fisher Phillips • June 27, 2014
Dealing the agency its second major setback on the legitimacy of its quorum, the Supreme Court has invalidated a trio of recess appointments made to the NLRB back in January of 2012. Moments ago, the Court handed down its landmark decision in NLRB v. Noel Canning, upholding a challenge to the agency’s authority to issue hundreds of decisions over the 18 months that followed the invalid appointments.
Franczek Radelet P.C • April 16, 2014
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.”
Franczek Radelet P.C • March 04, 2014
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.
Ogletree Deakins • November 06, 2013
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.
Ogletree Deakins • October 30, 2013
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
FordHarrison LLP • October 03, 2013
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.
Fisher Phillips • September 11, 2013
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.
FordHarrison LLP • August 30, 2013
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.
Ogletree Deakins • August 22, 2013
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.
Fisher Phillips • August 08, 2013
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.
Franczek Radelet P.C • August 01, 2013
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.
Goldberg Segalla LLP • July 23, 2013
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.
Fisher Phillips • July 18, 2013
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.
Ogletree Deakins • July 18, 2013
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.
FordHarrison LLP • May 21, 2013
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.
Franczek Radelet P.C • May 17, 2013
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.
Fisher Phillips • May 01, 2013
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.
Franczek Radelet P.C • April 10, 2013
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.
Ogletree Deakins • April 10, 2013
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.
Franczek Radelet P.C • March 14, 2013
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.
Franczek Radelet P.C • February 18, 2013
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.
FordHarrison LLP • January 28, 2013
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.
Franczek Radelet P.C • January 28, 2013
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.
Ogletree Deakins • January 28, 2013
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.
Fisher Phillips • January 28, 2013
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
Ogletree Deakins • January 28, 2013
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).
Franczek Radelet P.C • January 04, 2013
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.
Goldberg Segalla LLP • December 18, 2012
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.
Franczek Radelet P.C • October 29, 2012
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.
Ogletree Deakins • October 09, 2012
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).
Fisher Phillips • April 18, 2012
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."
Franczek Radelet P.C • April 17, 2012
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.
Fisher Phillips • April 04, 2012
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.
Franczek Radelet P.C • March 05, 2012
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).
Franczek Radelet P.C • January 06, 2012
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.
Ogletree Deakins • January 05, 2012
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 (â€œR-Caseâ€) procedures. A summary of each of these key developments follows.
Franczek Radelet P.C • December 16, 2011
Yesterday, President Obama announced his plan to nominate attorneys Sharon Block and Richard Griffin to the National Labor Relations Board.
Franczek Radelet P.C • December 12, 2011
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.
Franczek Radelet P.C • November 22, 2011
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.
Nexsen Pruet • October 13, 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.
Fisher Phillips • October 07, 2011
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.
Fisher Phillips • September 08, 2011
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.
Ogletree Deakins • June 10, 2011
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.
Ogletree Deakins • February 08, 2011
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).
Franczek Radelet P.C • November 04, 2010
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.
Franczek Radelet P.C • October 08, 2010
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.
Ogletree Deakins • October 05, 2010
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.
Ogletree Deakins • August 23, 2010
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).
Fisher Phillips • June 18, 2010
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.
Franczek Radelet P.C • June 18, 2010
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.
Fisher Phillips • April 02, 2010
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.
Ogletree Deakins • April 01, 2010
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.
Fisher Phillips • December 02, 2009
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.
Fisher Phillips • October 02, 2009
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.
Fisher Phillips • June 03, 2009
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.