Wyatt Employment Law Report


Leave a comment

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.


Leave a comment

House Committee Holds Hearing on Proposed Legislation to Roll Back/Block NLRB Actions

On October 12, 2011, the U.S. House Education and the Workforce Committee held a hearing on the proposed “Workforce Democracy and Fairness Act” (H.R.3094) recently introduced by Republicans.  The purpose of the legislation is to the proposed legislation is to roll back some recent decisions of the National Labor Relations Board and block its proposed rule that would speed up the representation election process.  Specifically, H.R. 3094 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.

Witnesses testifying were: attorney Charles Cohen, a Republican and former Member of the National Labor Relations Board, Robert Sullivan, President of R.G. Sullivan Consulting, on behalf of the Retail Industry Leaders Association, attorneys Michael J. Hunter, who represents unions, and Phillip B. Russell, who represents employers. 

The proposed legislation may pass the House, but most certainly cannot pass in the Senate at this point in time.


Leave a comment

House Committee Holds Another Hearing on the NLRB

By Edwin S. Hopson

On September 22, 2011, the U.S. House Education and the Workforce Committee, chaired by Rep. John Kline (R-MN), held a hearing entitled, “Culture of Union Favoritism: Recent Actions of the National Labor Relations Board.” The hearing focused on several decisions issued by the National Labor Relations Board (NLRB) in late August just before the term of Chairman Liebman expired.  According to a press release, the Committee Chairman in his opening statement noted, “[t]hrough three decisions handed down in one afternoon, the board restricted workers’ right to a secret ballot election, undermined employers’ ability to maintain unity in the workplace, and created new barriers for those who wish to challenge union representation.  For anyone following the Obama board, this barrage of activist decisions – however unacceptable – was not unexpected. But for workers and job creators struggling to move this country forward, it is an outrage.”

 NLRB Chairman Mark Pearce’s response was:  “The National Labor Relations Board takes very seriously its obligation to enforce the law as enacted by Congress in a fair and even-handed way. Since August of last year, the Board issued more than 400 decisions, finding for employer interests in some, labor union interests in others, and individual employee interests in still others. In its hearing today, the Committee chose to focus on three decisions issued in late August. Two of them reversed previous Board rulings that were themselves highly controversial when they issued. The third clarified a confusing standard, allowing a group of Certified Nursing Assistants at a nursing home in Alabama to exercise their choice on union representation through a secret ballot election. Finally, the Board issued a rule which requires employers under the jurisdiction of the NLRB to post a notice of employee rights under our law, including the right to refrain from union activity, available for free download from our website. To my mind, these actions represent pursuit of the mission that Congress gave this agency – to protect worker free choice, promote collective bargaining and preserve labor peace.”