Wyatt Employment Law Report


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Measures Introduced in the Senate and the House to Block Actions by Members of the NLRB

By Edwin S. Hopson

On March 21, 2013, the ranking member of the Senate Health, Education Labor and Pensions Committee, Lamar Alexander (R-TN), offered an amendment that would defund the enforcement of any decisions or regulations made by the National Labor Relations Board, citing the decision in Noel Canning by the U.S. Court of Appeals for the D.C. Circuit this past January holding that President Obama’s recess appointments to the NLRB were invalid.  In a press release, Alexander stated: “The NLRB has just one member today—just one Senate-confirmed, constitutional member—so it has no quorum. Not a single cent should go to enforce or fund any of the invalid decisions made by a board that counts as members two unconstitutionally ‘appointed’ individuals.”

The amendment is co-sponsored by 17 Republican senators. The press release noted that since January’s D.C. Circuit Court ruling, the NLRB has issued 30 published decisions and 62 unpublished decisions and orders.

Earlier, on March 20, 2013, the House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), approved H.R. 1120 (by a vote of 23 to 15) requiring the NLRB “to cease all activity requiring a three member quorum until the legal crisis surrounding the board is appropriately resolved.” According to a press release on the House Committee’s website, H.R. 1120 will:

  • Require the NLRB to cease all activity that requires a three board member quorum.
  • Prohibits the board from enforcing any action taken after January 2012 or making any interagency appointments that require a quorum.
  • Not prevent the NLRB regional offices from accepting and processing unfair labor practice charges filed by an injured party – worker, employer, or union.
  • Remove the restrictions on the NLRB’s authority after one of the following events occurs:
    • The U.S. Supreme Court rules on the constitutionality of the recess appointments; or
    • A Board quorum is constitutionally confirmed by the Senate; or
    • The terms of the unconstitutional recess appointees expire when the First Session of the 113th Congress adjourns.
  • Ensure any action involving the recess appointees is reviewed and approved by a future NLRB that has been constitutionally appointed.

It is doubtful, given the make-up of the Senate, that either measure will ultimately be passed into law.


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House Committee to Hold Hearings on President’s Recess Appointments to NLRB

By Edwin S. Hopson

On February 1, 2012, the U.S. House Oversight and Government Reform Committee was to hold a hearing entitled “Uncharted Territory: What are the Consequences of President Obama’s Unprecedented ‘Recess’ Appointments.” The purpose of the hearing was to explore the possible consequences of the President’s three recess appointments to the National Labor Relations Board and the recess appointment of the Director of the Consumer Financial Protection Bureau on January 4, 2012.

 Republican Committee Chairman Darrell Issa stated in a preview statement posted on the committee’s website:

 “If the United States Senate can pass a bill and send it to the President for his signature, it is clearly not in recess. But a “recess” is exactly what President Obama has argued in justifying four recent appointments.”

 In prepared testimony, opponents of the appointments argue that with respect to the NLRB that all future decisions and regulations issued by the Board will be under a “cloud” and subject to constitutional challenge until the issue is resolved.  They argue that the Senate had not recessed and was holding a series of “pro forma” sessions. 

Proponents of the President’s action argue he had no choice since, in the case of the NLRB, it was about to be shutout from issuing decisions for lack of a quorum with the expiration of Member Becker’s recess appointment in early January.

It is not clear what if any action could be taken by the House of Representatives other than to perhaps develop a “road map” for use in a later court challenge of the appointments.

 The U.S. House Education and the Workforce Committee is planning a similar hearing for February 7, 2012.


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President Makes Recess Appointments to NLRB

On January 4, 2012, President Obama announced three recess appointments to the National Labor Relations Board:  Terrence Flynn, a Republican, who had earlier been nominated by the President about a year ago, but whose nomination had not been acted upon by the Democratically-controlled Senate; and Democrats Sharon Block, a Department of Labor official, and Richard Griffin, the General Counsel of the International Union of Operating Engineers.

This action was immediately challenged by various Republicans including House Education and the Workforce Committee Chairman JohnKline(R-MN) and Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) who have formally asked the National Labor Relations Board and the White House Counsel to provide documents and information concerning the appointments. The information request sought details of the qualifications of the appointees, and president’s legal authority to grant recess appointments while the Senate is in pro forma session.

Kline, in his press release, predicted that the process followed by the President will lead to legal challenges to any decisions issued by the new Members of the Board.


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NLRB Member Hayes Accuses Colleagues of Misleading House Committee on New Election Rule

By Edwin S. Hopson

In an unusual move, Member Brian Hayes, the only Republican on the National Labor Relations Board, has written a letter to the Chairman of the U.S. House Education and Workforce Committee criticizing the other two Democratic Members of the Board for scheduling a meeting on November 30, 2011, at which they will make a decision on the Board’s proposed new rule aimed at speeding the union representation election process.  Hayes claims that the meeting will violate Board rules and practice involving its deliberative process.  He also asserts that he has been left out of that process and has, for instance, not seen any summary of the some 65,000 comments received by the NLRB concerning the proposed new rule, nor been given adequate time to prepare a dissent regarding the new rule.  

Hayes also seems to accuse the majority on the Board of misleading the House Committee in a letter dated November 10, 2011, responding to a request from the Committee for a status report and timeline on the proposed new election rule. 

In a letter dated October 27, 2011, Committee Chairman John Kline had requested a number of items of information from the Board in order “[t]o better understand the process and timeline for the issuance of the new rule….”  In its November 10 response, the Board advised the Committee:

“The following is a timeline of past and anticipated actions on the rulemaking:

June 22, 2011 – Publication of proposed rule.

July 18-19, 2011 – Public meeting on proposed rule. 66 witnesses testified before the Board.

August 22, 2011 – Deadline for filing initial public comments.

Sept. 6, 2011 – Deadline for filing reply comments.

Unknown – Board vote on how to proceed on final rule.

Unknown – Draft of final rule circulated to Board Members.

Unknown – Publication of final rule in Federal Register.”

Hayes in his November 18 correspondence to the Committee states:

“The central fact omitted from the November 10 response letter is that there is a timeline for anticipated actions.  My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  Indeed, I was advised of this fact by the Board’s Chairman on the very day that the response letter was forwarded to your office.” [Emphasis in the original].

On November 18, 2011, Board Chairman Pearce announced the scheduling of the November 30 meeting at which a decision on the new rule will be made.  See prior post below dated November 18, 2011.

Also on November 18, 2011, Committee Chairman Kline wrote another letter to Board Chairman Pearce seeking information not supplied in the NLRB’s November 10 response and also stating:

“Needless to say, Member Hayes’ assertions are extremely troubling, as they would suggest you deliberately withheld information from the committee, if not knowingly provided the committee with misleading information.”

Kline requested a response from Board Chairman Pearce by November 29, 2011.

 The letters in question may be found on the Committee’s website at:

http://edworkforce.house.gov/News/DocumentSingle.aspx?DocumentID=269877


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Legislation Proposed to Curb/Roll Back Recent NLRB Actions

By Edwin S. Hopson

On October 5, 2011,Congressman John Kline(R-MN), the Chairman of the U.S. House Committee on Education and the Workforce, announced that he had introduced H.R. 3094 entitled, the “Workforce Democracy and Fairness Act.”  The proposed legislation is meant to curb/roll back some recent decisions and actions of the National Labor Relations Board including its proposal to speed up the representation election process.  According to a press release issued October 5, 2011, the proposed legislation would:

 ●Provide employers at least 14 days to prepare their case to present before a NLRB election hearing officer and an opportunity to raise additional concerns throughout the hearing process up to the close of the hearing.

 ●Provide that no NLRB representation election will be held in less than 35 days after filing of the petition.

 ●Reinstates the traditional standard for determining which employees will be eligible to vote in the union election.

 ●Provides that once an election is directed, eligible voters in the election must select in writing what sort of personal contact information they want released to the petitioning union in addition to their name, i.e., telephone number, email address, or mailing address.

Original cosponsors of H.R. 3094 include: Representatives Howard “Buck” McKeon (R-CA), Joe Wilson (R-SC), Virginia Foxx (R-NC), Duncan Hunter (R-CA), Phil Roe (R-TN), Glenn Thompson (R-PA), Tim Walberg (R-MI), Scott DesJarlais (R-TN), Todd Rokita (R-IN), Larry Bucshon (R-IN), Trey Gowdy (R-SC), Martha Roby (R-AL), Dennis Ross (R-FL), and Mike Kelly (R-PA).

A hearing by the committee on the measure will take place on October 12, 2011.