The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board’s August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their rights under the National Labor Relations Act (the “Act”). In National Association of Manufacturers, et al. v. NLRB, the court invalidated the rule because it found all three of the rule’s enforcement mechanisms unlawful. A majority of the court also found that the rule exceeded the Board’s rulemaking authority as delegated by Congress. To learn more about the decision, please continue reading at Littler's Labor Relations Counsel.
The House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.” Continue reading this entry at Littler’s Labor Relations Counsel.
After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”
Schaumber was nominated to the Board in 2002 by former President George W. Bush, and served as the agency’s Chair from 2008 until January 20, 2009, when President Obama appointed Wilma Liebman to that position. According to a press release, (pdf) Schaumber intends to take some time off before “returning to work in traditional labor law, government affairs and the legislative arena.”
Remaining on the Board are Chair Wilma Liebman (D) and Members Craig Becker (D), Mark Pearce (D), and Brian Hayes (R). There is no time table for nominating a replacement for Schaumber – which will be a Republican – to maintain the Board’s traditional minority party representation.
Photo credit: nlrb.gov
NLRB Ratifies General Counsel's Litigation and 2-Member Board's Administrative and Procedural Authority During 27-Month Period
The National Labor Relations Board (“NLRB” or “Board”) has announced (pdf) that it has ratified the General Counsel’s (GC) litigation authority and the Board’s administrative, personnel, and procurement actions taken during the 27-month period when the Board operated with only two acting members. The Board’s ratification does not extend to the unfair labor practice decisions and representation case rulings issued by members Wilma Liebman (D) and Peter Schaumber (R) during that time. It is estimated that from January 2008 through the beginning of April 2010, the two-member panel issued more than 600 Board opinions. In June, the Supreme Court held in New Process Steel that at least three members are needed to exercise the Board’s authority, thus calling into question the legitimacy of the cases decided and other actions taken during that period.
The NLRB’s announcement explains that in 2007, when the Board was anticipating that as of January 2008 it would be operating with only two members, it gave the agency’s GC:
full and final authority on behalf of the Board to initiate and prosecute injunction proceedings under Section 10(j), or Section 10(e) and (f) of the National Labor Relations Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.
In order to “remove any lingering questions” regarding the GC’s litigation authority exercised during this time, the now five-member Board formally ratified this delegation, explaining: “[a]lthough we believe that the court litigation delegation has always been valid, this ratification is intended to remove any question that has arisen or may arise regarding this delegation.”
With respect to the two-member Board’s administrative and other actions taken – including but not limited to appointments of regional directors, administrative law judges, and senior executives – the complete Board, “in an abundance of caution” ratified all actions taken and/or approved by the two-member Board between January 1, 2008 and April 5, 2010.
The Board recently explained how it would deal with 96 cases decided during the contested period that have been returned to the agency from various federal courts of appeal.
Photo credit: MBPHOTO, INC.
In the wake of the recent Supreme Court decision holding that the National Labor Relations Act (NLRA) requires that the National Labor Relations Board (NLRB) must operate with at least three members in order to exercise its full authority, the NLRB has issued a roadmap (pdf) explaining how it will handle cases sent back to the agency that were decided by only two acting members. It is estimated that nearly 600 cases were adjudicated in this fashion during the 27-month period before President Obama used his recess appointment power in March to seat members Craig Becker (D) and Mark Pearce (D). The Senate confirmed the nominations of Pearce and Brian Hayes (R) in June, restoring the NLRB to full power.
According to the NLRB, at the time the Supreme Court issued its June 17 decision, “96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.” As discussed in the NLRB press release, each of the remanded cases will be considered by a three-member panel of the Board, which will include Chairman Wilma Liebman (D) and NLRB Member Peter Schaumber (R), the two members who initially decided the remanded cases. “Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.” With respect to two-member Board rulings not already challenged in the federal appellate courts, the press release stated that it is unclear at this time how many of such rulings can or will be contested and how many may now be moot.
On Tuesday, the Senate officially confirmed (pdf) the nominations of Mark Hayes and Brian Pearce to be members of the National Labor Relations Board (NLRB). The two were included in a package of more than 60 nominees confirmed by voice vote. President Obama previously gave recess appointments to Pearce and Craig Becker, whose nomination failed to advance in the Senate. Controversial nominee Craig Becker, whose recess appointment expires at the end of 2011, was not among those nominees confirmed today. With the addition of Hayes, the Republican nominee, the current composition of the Board and the duration of the members’ terms are as follows:
- Chairman Wilma Liebman (D), whose term expires at the end of August 2011;
- Mark Schaumber (R), whose term expires at the end of August 2010;
- Craig Becker (D), whose recess appointment expires at the end of 2011;
- Mark Pearce (D), whose term expires at the end of August 2013; and
- Brian Hayes (R), whose term expires at the end of December 2012.
Hayes’s and Pearce’s confirmation comes after the Supreme Court ruled that the NLRB cannot act with only two members. Earlier this week, Obama named long-term NLRB attorney Lafe Solomon (pdf) to serve as the agency’s acting General Counsel (GC). Earlier this month, current GC Ronald Meisburg announced his intention to step down before his term expires in August. The GC wields a significant amount of power, as it is he or she who determines which cases to put before the Board. According to the NLRB press release, Solomon began working for the agency as a Seattle field examiner in 1972, and served in a variety of positions on the GC and Board side of the agency, including staff attorney, before becoming Director of the NLRB’s Office of Representation Appeals, a job he has held for the last decade.
The National Labor Relations Board (NLRB or “Board”) is inviting “all interested parties” to file amicus briefs in pending cases involving whether employers should be required to electronically post Board-ordered remedial notices, and whether the Board should routinely order compound interest on back pay and other monetary awards in unfair labor practice (ULP) cases. The NLRB considers these issues to be “significant” for employees, employers and unions.
According to a press release, (pdf) the first set of cases addresses whether remedial notices – which announce steps an employer has taken to remedy a violation of the National Labor Relations Act (NLRA) – should be posted electronically, such as through a company-wide email system. Such notices are usually posted in paper form on workplace bulletin boards. If this policy is changed, the Board notes that it would have to reconsider its decision in Nordstrom, Inc., 347 NLRB 294 (2006), and also determine what legal standard should apply to electronic posting. The cases at issue that address this topic include: Arkema, Inc., 16-CA-26371; Stevens Creek Chrysler Jeep Dodge, Inc., 20-CA-33367, and Custom Floors, Inc., 28-CA-21226.
The second set of cases deals with whether the Board “should routinely order compound interest on back pay and other monetary awards in unfair labor practice cases, and if so, what the standard period should be for compounding (daily, quarterly, annually?).” This issue is presented in Bashas’ Food City, 28-CA-21435; Atlantic Scaffolding Company, 16-CA-26108; and Kentucky River Medical Center, 9-CA-42249.
Briefs for either issue must be 25 pages or fewer, and be filed on or before June 11, 2010 with the NLRB in Washington, D.C. The NLRB advises those seeking additional information to contact the Office of the Executive Secretary at (202) 273-1067.
According to a report by the Associated Press, Labor Secretary Hilda Solis hinted during the AFL-CIO annual meeting that President Obama would institute controversial nominee Craig Becker as a member of the National Labor Relations Board (NLRB) by means of a recess appointment, possibly during the Easter recess. On February 9, the Senate failed to pass a cloture motion on his nomination, fueling speculation that Obama would appoint Becker – who currently serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO – during the President’s Day recess. According to the AP story, Solis told AFL-CIO members that they would be “very pleased” with how the stalled nomination issue would be resolved. The Senate is set to adjourn for the Easter recess from March 29 through April 9.
Sen. Harry Reid (D-Nev.) has filed cloture on the nomination of Craig Becker to be a member of the National Labor Relations Board (NLRB). According to the Hill.com’s Blog Briefing Room, Sen. Richard Shelby (R-Ala.) has put a hold on all of Obama’s nominations pending before the Senate, including Becker’s. Therefore, at least 60 Senators must vote to end debate on the nomination – a feat likely made more difficult now that Republican Scott Brown has been sworn in as a Massachusetts senator. The Senate House, Education, Labor and Pensions (HELP) Committee cleared Becker’s nomination on Thursday on a party-line vote. Becker’s cloture vote is scheduled for Monday at 5:00 pm.
On Thursday, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 13-10 along party lines in favor of Craig Becker’s nomination to be a member of the National Labor Relations Board (NLRB). This vote follows a contentious hearing over Becker’s nomination that was held on Tuesday. It was widely believed that once the HELP Committee cleared Becker’s nomination, it would be sent quickly to the Senate floor for a final vote before Republican Scott Brown was sworn in as senator, an event originally scheduled for next Thursday. This plan might be derailed, however, as it was announced yesterday that Brown could be sworn in as early as 5:00 pm today, raising the chances that Senate Republicans will be able to stop Becker’s confirmation.
Unfair Labor Practice Charges Increased Slightly, Representation Election Petitions Decreased Significantly in 2009, According to NLRB Report
On Tuesday, the National Labor Relations Board (NLRB) released its year-end report detailing its summary of operations for fiscal year 2009. A copy of this report can be downloaded from the agency’s press release (pdf) on this subject. According to this report, while the agency’s caseload remained steady, union representation election petitions dropped dramatically from the previous year, while unfair labor practices increased slightly. Specifically, the total number of unfair labor practice (ULP) charges and representation petitions filed for FY 2009 came to 25,853, compared to 25,901 in FY 2008. Of the overall case intake, unfair labor practice case intake was 22,941, a 1.96 percent increase from the previous year. However, the total intake for representation cases this year equaled 2,912, a 14.4 percent decline from the previous year’s tally of 3,400. In addition, the NLRB conducted 1,690 initial representation elections in FY 2009, 395 fewer than in 2008, amounting to a nearly 19 percent decrease. The drop in petitions is likely due, at least in part, to the proposed Employee Free Choice Act (EFCA), which, if enacted as currently written, would make it substantially easier for unions to be certified as the employees’ collective bargaining representative. It is possible that unions are holding out hope for EFCA’s passage before initiating any new organizing drives.
Of special note in the report was the fact that 95.5 percent of all initial elections in FY 2009 were conducted within 56 days of the filing of the petition. Additionally, initial elections in union representation elections were conducted in a median of 37 days from the filing of the petition.
Littler Shareholder Ilyse Schuman commented that: “The report is particularly telling in that unfair labor cases only marginally increased while the Board saw more dramatic decreases in representation cases, suggesting both a continued decline in union organizing as well as the prospect of EFCA passage to facilitate these organizing efforts.”
The NLRB claims that it reached all three of its over overarching goals, closing 84.35 percent of all representation cases within 100 days, 70.93 percent of all unfair labor practice cases within 120 days, and 79.69 percent of all meritorious unfair labor practice cases within 365 days. The agency intends to increase its target goals for FY 2010.
Other highlights of the report include the following:
- A 95.2 percent settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
- NLRB Regional Offices won 89.8 percent of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2009.
- A total of $77,611,322 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines, with 1,549 employees offered reinstatement.
More details of the NLRB’s year-end activities can be found in the agency’s Performance & Accountability Report for Fiscal Year 2009 (pdf).
Photo credit: timmy
NLRB Order Provides Insight into How UNITE HERE, Workers United Representation Disputes Will be Handled
A recent order issued by the National Labor Relations Board (NLRB or Board) may herald the agency’s handling of other petitions seeking to resolve questions of union representation brought about by the UNITE HERE / Workers United split. The Board’s Order, issued July 21, 2009, affirmed the Regional Director’s decision issued July 12 dismissing the employer’s petition. Although the Board’s apparent adoption of a unified response to petitions filed in the wake of the UNITE HERE / Workers United split may provide some guidance as to how the Board will address these questions in the future, its chosen course of action avoids any discussion of whether a schism in the union occurred, and should lay the groundwork for potential federal court challenges.
In the case at issue, the employer, Royal Laundry, was faced with competing claims by UNITE HERE and the Western States Regional Joint Board (WSRJB) to represent its employees. Each union claimed to be the legitimate union representative of the bargaining unit. Prior to this, the employees had been members of Local 75 of UNITE HERE, but their executive board chose to endorse a petition to disaffiliate from UNITE HERE and join other Joint Boards and Locals to form a new union, Workers United. In the process, the local’s executive board retained its shop stewards and Joint Board staff representatives.
Royal Laundry filed a petition for an election to determine which union it needed to recognize. In this type of election, the employees also could choose not to be represented by a union at all. The Regional Director, as affirmed by the Board, ultimately denied Royal Laundry’s petition on the grounds that Local 75 (now of Workers United) remained the employees’ certified bargaining representative. The decision reasoned that the same standard used to determine whether an employer must recognize a union in the event of a union affiliation or merger, should be applied. According to the decision, the choice to disaffiliate from a union is “merely the flip side of the affiliation coin.” In the case at hand, because Local 75 continued to operate much as it had before deciding to disaffiliate, it would remain the bargaining representative.
By using this rationale, the Board avoided any discussion as to whether a schism had occurred in the union, which would entitle employees to hold an election to determine which union would represent them. If the Board were to rule that a schism had occurred, it would likely face hundreds of such elections throughout the country, which would be tremendously disruptive to the Board and employers alike.
As a result of this week’s NLRB order, the Board presumably will uphold decisions by other Regional Directors, which have been fairly uniform and have come to the same conclusion with respect to UNITE HERE / Workers United employer petitions. Additionally, on June 18, the Board issued an operations-management (OM) memorandum to NLRB regional directors and officers on how to process unfair labor practice charges arising out the UNITE HERE, Workers United and SEIU dispute. In essence, this OM stated that decisions related to the UNITE HERE dispute must be cleared by the NLRB General Counsel’s office. On a related note, the above affirmation also may allow the field offices to begin processing the Unfair Labor Practice charges filed in connection with the UNITE HERE split.
In the longer term, employers may have recourse in the event the Board certifies a bargaining unit and orders an election. At least one employer will likely challenge the certification or “test cert” before a Federal Circuit Court of Appeals. Given the Board has avoided any discussion of schism, a federal court may be more willing to overrule the Board’s decision based upon prior Board law. Moreover, although the decisions by NLRB Regional Directors have been fairly consistent in deciding that disaffiliation is the flip side of affiliation, this argument is somewhat thinly supported by the law, and is ripe for challenge.
This article was written by H. Tor Christensen.
President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.
According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.
It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.
The U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board (“NLRB” or “Board”) acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act (NLRA). In Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB (pdf), the only issue before the appellate court was whether the Board had the statutory authority make its decision, not whether its findings, conclusions and remedies were justified.
Prior to issuing its order in the underlying decision, one Board member’s term had expired. The remaining four members of the five-member Board voted to delegate its powers to a three-member group, pursuant to Section 3(b) of the NLRA, which reads:
The Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.
29 U.S.C. § 153(b).
As two additional members’ terms were set to expire on December 31, 2007, it was anticipated that the Board would be left with only two members due to the Senate’s failure to confirm any new nominees for the open and expiring positions; and President Bush’s inability to make recess appointments for procedural reasons. Thus, according to the D.C. Circuit, the purpose of delegating powers to a three-member group was to ensure that the remaining two Board members whose terms had not yet expired would be able to operate as a fully-functioning Board. The question before the D.C. Circuit, therefore, was whether two members constituted an effective quorum. Finding that they did not, the court reasoned that had Congress intended a two-member Board to be able to function as a quorum “the existing statutory language would be an unlikely way to express that intention.” Thus, according to the D.C. Circuit, three members are necessary for the Board to exercise any real authority. Under that reasoning, any order issued by the two-member Board would be unenforceable.
This issue is far from resolved. The Seventh Circuit also issued a decision today, New Process Steel, L.P. v NLRB (pdf) that upholds a two-member Board decision. In March, the First Circuit similarly upheld the two-member panel’s authority to issue orders in Northeastern Land Services, Ltd. v. NLRB. It is anticipated that other circuit courts that address this question will differ as to the ability of a two-member Board to issue enforceable decisions.
The practical implications of the D.C. Circuit’s decision will be few for employers. President Obama recently announced his decision to nominate Democrats Craig Becker and Mark Pearce to fill two of the three remaining open Board seats. Obama, however, failed to announce the nomination of a Republican member to fill the remaining seat which may cause Senate Republicans to put a hold on the expected nominations of Becker and Pearce until a Republican is named as well. The longer it takes to fill the vacant seats, the longer it will be until the Board’s orders are deemed legitimate by every appellate court. Assuming Becker and Pearce are eventually seated, they – along with Democratic Chair Wilma Liebman – will constitute a quorum able to re-issue or adopt all of the decisions made by the 2-member Board, including the immediate decision in Laurel Baye.
Parties who file documents with the National Labor Relations Board (NLRB) may now serve such documents on other parties via e-mail, according a final rule published in today’s Federal Register. This represents a departure from previous NLRB policy, requiring a party who filed a document electronically with the Agency to notify all other parties via telephone about the filing, then serve them with a physical copy of the document the following day at the latest.
Under the new rule, if a document is filed electronically and if e-mail service is not possible, a party must notify the other party(ies) by phone, then provide a copy of the document via personal service no later than the next day, by overnight delivery service, or with consent, via facsimile.