The National Labor Relations Board’s (NLRB or Board) General Counsel, Richard Griffin, issued a memorandum (GCM 14-01) in late February to the Board’s Regional Directors highlighting legal issues the Regions are required to submit to the Board’s Division of Advice. The General Counsel’s memorandum allows a glimpse into the crystal ball to see how the NLRB will chart its course for the upcoming year. Although some of the destinations are expected (e.g., a return to the applicability of Weingarten rights to non-union employees), others represent an aggressive policy of furthering the Board’s pro-labor agenda. If the General Counsel succeeds in advancing his agenda, dramatic changes are on the horizon for employers.
Articles Discussing The National Labor Relations Board (NLRB).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.