Wyatt Employment Law Report


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Joint Resolutions Proposed in the House and Senate to Overrule NLRB’s New Election Rules

By Edwin S. Hopson

On February 16, 2012, the U.S. House Education and the Workforce Chairman John Kline (R-MN), joined by Rep. Phil Gingrey (R-GA) and Rep. Phil Roe (R-TN), introduced H.J. Resolution 103 under the Congressional Review Act (5 U.S.C. §§801-808) that would block the National Labor Relations Board’s December 21, 2011, new representation election rules intended to speed up and streamline the Board’s union representation election process, to be effective April 30, 2012. Sixty-five House members as of now support the resolution.

A companion resolution (S. J. Res. 63) was also introduced in the U. S. Senate by Senator Mike Enzi (R-WY) and Senator Johnny Isakson (R-GA).  S. J. Res. 63 has the support so far from 44 Senators.

The December 2011 rules were only a portion of proposed changes announced in June, 2011.  Since December, NLRB Chairman Pearce has indicated he intended to bring up for consideration later this year the remaining proposals designed to speed up the election process. 

At a press conference on February 16, Chairman Kline stated: “With the addition of these three non-recess ‘recess’ appointees [to the NLRB], it’s very clear to us that Chairman Pearce from the NLRB intends to go back and pick up some of those provisions that were left out from the rule passed last year. We are very concerned about this board and its agenda. We’re pleased the Senate is going forward with this resolution of disapproval and we look forward to being right there with them.”

The Congressional Review Act was enacted by the Congress as a part of the Contract with America Advancement Act of 1996 and is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. The law permits the Congress to review, on an expedited basis, new federal regulations issued by government agencies and, by passage of a joint resolution, overrule the regulations.  It would appear that the Republicans in the House may be able to pass the resolution, but it would seem more doubtful in the Democrat-controlled Senate.


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Republican Senators Block GPO Nominee Over Senate’s Failure to Confirm NLRB Nominee

By Edwin S. Hopson

In an article by Josiah Ryan posted on www.thehill.com on October 19, 2011, it was reported that Senators Orrin Hatch (R) and Johnny Isakson (R) have prevented confirmation of William J. Boarman, the President’s nominee for head of the U.S. Government Printing Office, because the Democratically-controlled Senate has not scheduled a vote on the nomination of Terence Flynn, a Republican, to be a Member of the National Labor Relations Board. Mr.Flynn was nominated by President Obama on January 5, 2011, but to-date the Senate Health, Education, Labor and Pensions Committee has not approved the nomination, the first step in the Senate’s process.

Currently, there are three Members on the five-member Board:  Chairman Mark Pearce (D), Member Craig Becker (D) and Member Brian Hayes (R).  It appears that on December 31, 2011, the recess appointment of Member Becker will expire.  Should Mr.Flynn be confirmed by the Senate, then after December 31, 2011, the Republican Members would be in the majority.  If Mr. Flynn (or another nominee) is not confirmed this year, then the NLRB would likely be reduced to just two Members and be unable after December 31, 2011, to issue decisions or take other actions under the recent Supreme Court decision in New Process Steel v. NLRB, 30 S. Ct. 635 (2010).