Articles Discussing The National Labor Relations Board (NLRB).

In a late afternoon vote, the Senate on Monday confirmed the nomination of Lauren McFerran to serve as member of the National Labor Relations Board. The final tally was 54-40 along party lines. McFerran – who will replace outgoing member Nancy Schiffer – will remain a member of the Board until December 16, 2019.

During the waning days of the 113th Congress, the Senate voted to confirm the nominations of Charlotte Burrows as a Commissioner, and David Lopez as General Counsel, of the U.S. Equal Employment Opportunity Commission. The December 3, 2014 votes come a week after Sen. Lamar Alexander (R-TN) issued a report criticizing the agency’s recent activities: EEOC: An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.

During a relatively sedate hearing to consider the nomination of Lauren McFerran to serve as a member of the National Labor Relations Board, the issue of joint employment and franchisor liability took center stage, at least for the Republican members of the Senate Committee on Health, Education, Labor and Pensions (HELP).

Perhaps sensing former recess appointee Sharon Block’s confirmation to the National Labor Relations Board would be an uphill battle, President Obama has reportedly announced that he is withdrawing her nomination. In her stead, as reported by Edward-Isaac Dovere of Politico, the President will name Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions, as his choice to be the fifth Board member.

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.

On September 16, 2014, Senate Republican Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) introduced the National Labor Relations Board Reform Act. In a press release, Sen. McConnell said, “it’s past time to restore the NLRB to its proper role as umpire, instead of advocate for the Right or Left.” Co-sponsor Alexander said, “The board is too partisan, swinging from one side to the other with each new administration . . . It’s time for the board to restore stability to our nation’s workplaces, with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”

A day after the Senate returned from its summer recess, the Committee on Health, Education, Labor and Pensions held a hearing to discuss the nomination of former recess appointee Sharon Block to be a member of the National Labor Relations Board. President Obama announced his intent to re-nominate Block to the Board on July 10, 2014. Block previously served as a member of the Board from January 2012 – when the President seated her and two other members via recess appointment – until the summer of 2013, when her nomination was withdrawn as part of a Senate deal to allow votes on the five current NLRB members. In June of this year, the U.S. Supreme Court in Noel Canning held that Block’s recess appointment was invalid.

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.

Two weeks after the U.S. Supreme Court held in Noel Canning that the three January 4, 2012 recess appointments to the National Labor Relations Board were invalid, the President has re-nominated one of these recess appointees to the Board. On July 10, President Obama announced his intent to nominate Sharon Block to once again be a member of the Board. Block, along with Richard Griffin and Terence Flynn, was seated on the Board while the Senate was still holding brief pro forma sessions every three days. The Court in Noel Canning determined that these sessions did not constitute a recess for appointment purposes.

Last week the U.S. Supreme Court issued its highly anticipated decision in Noel Canning v. NLRB. Affirming the D.C. Circuit’s January 2013 ruling in favor of beverage distributor Noel Canning, the Court held that President Obama’s January 2012 recess appointments to the National Labor Relations Board were unconstitutional because the Congressional recess was of insufficient length.

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.

The U.S. Supreme Court issued its long-awaited opinion in Noel Canning v. NLRB this morning, upholding the D.C. Circuit’s finding that the President’s three recess appointments to the National Labor Relations Board when the Senate was still holding pro forma sessions were invalid. The decision, however, is a relatively narrow one, upholding the President’s ability under the Constitution’s Recess Appointments Clause to “fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” The problem with the NLRB appointments, therefore, was that the recess was of insufficient length. The appointments at issue were made on January 4, 2012, while the Senate was operating in pro forma sessions, meeting every third business day but conducting no substantive business. According to the Court, the Recess Appointments Clause “does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short.” Moreover, the Court noted that “[f]or purposes of the Recess Appointments Clause, the Senate is in session when it says that it is.” The scope of Presidential powers aside, the practical impact of this decision is that potentially hundreds of Board decisions issued by the recess appointees are invalid and must now be re-examined.

The National Labor Relations Board (NLRB) recently issued two significant decisions on the same day (May 9) that highlight contrasting methods of issuing dissents.

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.

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.