Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Becker’s fate seemed sealed after Republican Scott Brown was sworn in last Thursday as a Massachusetts senator, eliminating the Democrat’s 60-seat filibuster-proof majority. Any hope that at least one Republican would cross party lines to vote in Becker’s favor was all but lost when it was announced on Monday that Democratic Senator Ben Nelson (D-NE) opposed Becker’s nomination. In a press release, Nelson stated, “Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the Administration.” Nelson added that many of Becker’s positions he advocated in scholarly works “fly in the face” of Right to Work laws. Senator Blanche Lincoln (D-AR) joined Senator Nelson in opposing cloture on Becker’s nomination.

Senator Nelson highlighted some of the positions taken by Becker, including his belief outlined in a 1993 Minnesota Law Review article that “[o]n account of the asymmetry between representation elections in the workplace and the polity . . . employers should have no legally sanctioned role in union elections."  In this article Becker also suggested that employees should be compelled to join labor unions: “…it could be argued that industrial democracy should be made more like political democracy by altering the nature of the choice presented to workers in union elections. Such a reform would mandate employee representation, and the question posed on the ballot would simply be which representative.”

Although Becker testified at a hearing before the HELP Committee that such statements were intended to be provocative and that he would respect the role of Congress in creating labor law policy, many lawmakers and members of the business community have feared that Becker would try to implement his views through Board decisions or rule-making.

It is unclear when or if the Senate will vote on President Obama’s two other NLRB nominees, Mark Pearce and Brian Hayes. There has been some speculation that Becker could be seated by means of a recess appointment when the Senate adjourns for the Presidents Day recess. According to an article in The Hill’s Blog Briefing Room, Obama is not adverse to this possibility, saying: “If the Senate does not act to confirm these nominees, I will consider making several recess appointments over the upcoming recess, because we cannot allow politics to stand in the way of a well-functioning government.” If the President takes this route, the recess appointment would expire by the end of the next Congressional session, roughly the end of the next calendar year, unless the Senate confirms the appointment.

Photo credit:  MBPHOTO, INC.

It is unclear whether Becker’s nomination will face a similar fate this time around. To complicate the matter, the NLRB is currently operating with only two members. Whether the traditionally five-member Board has the authority to decide cases with only two sitting members is an issue the U.S. Supreme Court will determine this term in New Process Steel v. NLRB. At stake in this case are hundreds of Board decisions. It is believed that if the Supreme Court effectively invalidates those two-member decisions, a full Board would simply re-issue those opinions. The failure of the three NLRB nominees to be confirmed, however, will necessarily impact this strategy.

Arbitration

Senator Russ Feingold (D-WI) has reintroduced the Arbitration Fairness Act (S. 931), a bill that would render unenforceable predispute agreements mandating arbitration of employment, consumer, franchise or civil rights claims.

Business Restructuring

The recently-introduced Alert Laid off Employees in Reasonable Time (ALERT) Act (H.R. 2077) would require employers to provide Worker Adjustment Retraining Notification (WARN) Act notices to employees in the event of mass layoffs that occur at more than one worksite, and would double the penalties for violations.

Congressional Leadership

Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary, bringing Democrats closer to a filibuster-proof majority.

Discrimination in the Workplace

The Fair Pay Act (S. 904, H.R. 2151) was reintroduced in both the House and Senate. This bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Immigration

Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced the H-1B and L-1 Visa Reform Act (S. 887), legislation that would completely reform the H-1B and L-1 visa guest worker programs.

Labor-Management Relations

The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form.

Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations 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.

Work/Family Balance

Two bills were introduced this week that seek to amend the Family and Medical Leave Act (FMLA) and its regulations. The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act. The Family and Medical Leave Inclusion Act (H.R. 2132) would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent who has a serious health condition.

Workplace Safety

Employers are advised to establish a workplace safety plan to specifically address the public health emergency surrounding the swine flu outbreak.  On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way.

In legislative news, the Protecting America’s Workers Act (PAWA) (H.R. 2067), a bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, was reintroduced.  Additionally, on April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating OSH laws. Lawmakers in both chambers stressed the need for OSH reform.

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.

First appointed by former President Clinton, Liebman has served on the Board since November 14, 1997. Prior to joining the NLRB, Liebman worked at the Federal Mediation and Conciliation Service as Special Assistant to the Director and then as Deputy Director. In addition, Liebman has worked as a lawyer for the NLRB, the International Brotherhood of Teamsters, and the International Union of Bricklayers and Allied Craftsman. She is also an elected member of the Executive Board of the Industrial Relations Research Association and of the College of Labor and Employment Lawyers, Inc.

In testimony before the House Committee on Education and Labor, and in an article published in the Working USA: Journal of Labor and Society, Liebman takes issue with the NLRB’s focus on protecting an employee’s right to decline union representation over the promotion of collective bargaining. In the abstract to her article: Labor Law Inside Out, Liebman writes:

Today, some sixty years after passage of the Taft-Hartley amendments to the National Labor Relations Act, it seems that the centerpiece of the Act has become the right to refrain from protected, concerted or union activity. The original 1935 legislation was enacted, of course, to protect the right to engage in that activity, and to encourage the practice of collective bargaining. For nearly sixty years after Taft-Hartley added the right to refrain to Section 7's employee protections, the Board has struggled to reconcile the sometimes competing statutory goals of promoting the stability of collective bargaining relationships and the individual freedom of choice, preserved by Section 7. That has changed, however, as the National Labor Relations Board, in several recent decisions, has said for the first time, that freedom of choice - which is to say, the freedom to reject union representation - prevails in the statutory scheme. It is as if the law, in abandoning the primacy of achieving economic justice through collective action, has been turned inside out. The stakes for this shift in policy are great.

In essence, Liebman bemoans the fact that the NLRB has focused its efforts on preserving an employee’s freedom of choice. This theme continues in the last page of her article, where Liebman emphasizes that:

[A]n exclusive orientation toward an individual-rights regime could have troubling political and social consequences. Workers may view the employment relationship in purely individual terms and may fail to grasp common economic interests and the potential of collective action at work, as well as in the public sphere. Collective action at work encourages engagement in the community and in politics. Without a functioning collective bargaining system, fundamental economic issues are placed off the table: distribution of wealth, control, and direction of economic enterprises. What institution will be as effective in efforts to minimize the randomness of fortune of democratic capitalism? And without a strong independent trade union movement, what institution will stand effectively as a counterweight in our democracy to the growing political influence of corporations? What institution will speak for working people—indeed for the middle class—as effectively?

It is evident by this passage that Liebman views with disdain the “political influence” of the business community. As Chairman of the NLRB, it can be reasonably expected that she will direct the Board’s energies to enforcing labor laws, promoting collective bargaining, and issuing rulings that effectively overturn a number of Bush-era NLRB rulings that organized labor and some Democratic Senators are determined to reverse. Moreover, if the Employee Free Choice Act (EFCA) is ever enacted, the NLRB will have the regulatory opportunity to shape how the new law will operate in practice in a way that is favorable to organized labor. As a proponent of unions, Liebman will surely do just that if given the opportunity.