Wyatt Employment Law Report


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House Committee Conducts Hearing on NLRB’s Proposed Changes to Election Rules

By Edwin S. Hopson

On March 5, 2014, the House Committee on Education and the Workforce conducted a hearing entitled, “Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.” During the hearing, chaired by Representative John Kline (R-MN), some members of the committee claimed that the recently proposed changes to union representation election rules by the National Labor Relations Board would undermine long-standing rights of workers, employers, and unions.

In opening remarks, Kline stated, in part: “For many of my colleagues, this hearing might evoke a sense of déjà vu. Not too long ago we debated a nearly identical ambush election rule proposed by the National Labor Relations Board that would stifle employers’ free speech and cripple workers’ free choice. In 2011 the House passed with bipartisan support a bill that would have protected the rights of workers, employers, and unions by reining in this radical proposal.”

The rule changes were first proposed in 2011, but were struck down by a federal judge on procedural grounds.  They were then revived last month.  According to Kline, the NLRB’s proposed rule changes would (1) significantly shorten the time between the filing of a union election petition and the actual election, (2) provide employers just 7 days to find legal counsel and prepare for a representation election hearing before the NLRB,  (3) force employers to raise all issues before the hearing or lose the right to raise those issues during the hearing; and (4) delay answers to important legal questions until after employees have voted. Additionally, Kline claimed that the proposed rule changes would jeopardize workers’ privacy by divulging sensitive information, such as email addresses, to union organizers. Continue reading


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NLRB Announces its Government Shutdown Contingency Plan

By Edwin S. Hopson

The National Labor Relations Board released its government shutdown contingency plan which is posted on its website at:

http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1718/NLRB%20Contingency%20Plan%20Revised%20Draft%209-27-2013.pdf

It states that “[i]n the event of an appropriations hiatus, it is the policy of the NLRB to:

A. Commence the orderly and expeditious shutting down of all but emergency

NLRB functions by securing files, property, and office facilities.

B. Ensure that the NLRB meets its responsibilities to the parties in current unfair

labor practice and election case proceedings consistent with the Anti-Deficiency

Act.

C. Ensure that NLRB employees are fully informed as to the reasons for the

shutdown; and that payroll and other employee benefit responsibilities are met.

D. Ensure that the NLRB retains the ability to respond to unfair labor practice

incidents that might result in irreparable harm to the private sector economy.”

The plan states that 1600 of its 1611 employees will be furloughed in the event of a shutdown, which could happen tomorrow.

The plan assumes that NLRB headquarters will have a minimal staff on the job, namely, the NLRB’s Chairman, and four other Board Members, the Acting General Counsel, the Deputy/Assistant General Counsel, the Executive Secretary, Solicitor, Chief Information Officer and Chief of Security, a total of 11.  Contacts by the public with field offices will be by voicemail.

 


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NLRB Responds to Adverse Ruling on Recess Appointments

By Edwin S. Hopson

In the wake of the D.C. Circuit Court of Appeals January 25, 2013 ruling in Noel Canning v. National Labor Relations Board, the NLRB’s Chairman issued the following statement on the same date which is posted on the Board’s website:

“The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.

In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”


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Court of Appeals Rules Recess Appointments to the NLRB Were Invalid

By Edwin S. Hopson

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. National Labor Relations Board, et al., No. 12-1115, holding that the order issued by the NLRB in the case was invalid in that the NLRB lacked a quorum of properly appointed members.  On January 4, 2012, President Obama had purported to recess-appoint new members to the five-member board so as to permit the NLRB to have a quorum and continue to operate.  At the time, Republican members of the Senate objected, contending that the Senate was not in recess.  The NLRB’s decision in Noel Canning was issued after the January 4, 2012 recess appointments.

The D.C. circuit court, in an opinion by Chief Judge Sentelle, stated, in part:

“In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.”

The effect of this decision will be wide-spread.  Every Respondent against whom the NLRB issues an unfavorable decision has the right to appeal it to the D.C. Circuit (as well as the circuit court in which the Respondent does business).  Therefore the validity of virtually all the NLRB’s decisions going forward are placed in doubt as to their validity.

The fastest and best solution would be for the Democrats and Republicans in the Senate to put together a consensus package of nominees to be quickly confirmed and put in place at the NLRB.  As it stands, there is only one member (out of 5 slots) filled by a properly confirmed board member, Chairman Pearce.