Wyatt Employment Law Report


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NLRB Members Griffin and Block to be Replaced as Part of Filibuster Deal

By Edwin S. Hopson

Politico.com and other media are reporting that on July 16, 2013, as part of the agreement to resolve the deadlock over possibly changing the filibuster rules in the Senate, Democrats in consultation with AFL-CIO President Richard Trumka agreed that Recess-Appointee Members Richard Griffin and Sharon Block of the NLRB would be removed and replaced by Nancy Schiffer, former Associate General Counsel at the AFL-CIO, and Kent Hirozawa, currently Chief Counsel to NLRB Chairman, Mark Pearce.  A hearing is to be scheduled the week of July 22 before the Senate HELP Committee to approve Schiffer and Hirozawa.  The GOP also agreed not to block the nominee for an opening next year on the NLRB. 

This agreement does not affect the pending case before the Supreme Court in Noel Canning v. NLRB regarding the validity of the President’s recess appointments to the NLRB in January 2012.

See http://www.politico.com/story/2013/07/white-house-consults-with-afl-cio-head-on-nlrb-picks-94280.html#ixzz2ZJKIhWik


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President Obama Announces Three Nominations To Be Members of the NLRB

By Edwin S. Hopson

On April 9, 2013, President Obama announced his intent to nominate three additional persons to serve as Members of the National Labor Relations Board. If confirmed, this would bring the number of Board Members to five, including two recess appointments.

The three persons to be nominnated are: Current Board Chairman Mark GastonPearce, Harry I. Johnson, III, and Philip A. Miscimarra.

Pearce has served as NLRB Chairman since August 2011, and has served as a Member of the Board since March 2010. His current term expires in August, 2013. He is currently the only Member who has been confirmed by the Senate.

Harry I. Johnson, III is a partner with the law firm of Arent Fox LLP, a position he has held since 2010.  He is based in Los Angeles, California. Previously, Johnson worked at the Jones Day law firm as partner from 2006 to 2010, and as an associate from 1994 to 2005. Johnson received a B. A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School. He has regularly represented employers in labor and employment matters.

Philip A. Miscimarra is partner with the law firm of Morgan Lewis & Bockius LLP, a position he has held since 2005.  He is based in Chicago, Illinois. Also, since 1997, Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton School of Business. Miscimarra also practiced law at Seyfarth Shaw LLP from 1987 to 2005.  Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School. He has represented management in labor and employment matters.

Nominations for the five-member Board were previously submitted by the President and are still pending for recess-appointees Richard F. Griffin, Jr. and Sharon Block.  The recess appointment are under attack in many cases now pending in the federal courts.  In one of those cases, Noel Canning v. NLRB, the D.C. Circuit Court of Appeals ruled the appointments were invalid.  The NLRB is seeking review of that decision by the U.S. Supreme Court.


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Federal Court Rejects NLRB Challenge to State “Secret Ballot” Law

By Edwin S. Hopson

On September 5, 2012, U.S. District Court Judge Frederick J. Martone ruled that an Arizona state constitutional amendment addressing how employees choose a union was not on its face preempted by the National Labor Relations Act.  The NLRB had filed suit in federal court in Phoenix, Arizona in 2011, challenging the Arizona provision which essentially compelled union elections to be by secret ballot.  The NLRB contended that the so-called “secret ballet amendment” conflicted with longstanding federal labor law on how employees choose a union.  The judge in dismissing the NLRB’s lawsuit stated: “[i]t is possible that state litigation invoking (the amendment) may impermissibly clash with the NLRB’s jurisdiction to resolve disputes over employee recognition, conduct secret ballot elections, and address unfair labor practices.”  However, while leaving open the possibility of a meritorious future challenge, the judge declined to assume the amendment to the Arizona constitution would conflict with the NLRA since the amendment to the had not yet actually been applied.

Judge Martone also stated: “[a] bargaining representative may be voluntarily recognized by an employer if there is convincing evidence of majority support. Alternatively, the NLRB may certify a union as the bargaining representative after it conducts a secret ballot election.”

According to an NLRB press release, the state of Arizona had “represented to the court that there was no preemption because the state’s ‘guarantee’ of a secret ballot election would only apply if and when the voluntary recognition option is not selected.”

In that same press release, NLRB Chairman Mark Gaston Pearce states: “Although we continue to believe that a preemption finding should have been made, we are very pleased that the court recognized that these choices are guaranteed to employees by federal law and cannot be taken away by the states.”


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NLRB Members File Dissenting and Concurring Statements Regarding New Election Rules

By Edwin S. Hopson

On June 22, 2011, the National Labor Relations Board issued a notice of proposed rulemaking proposing various amendments of its rules governing the filing and processing of representation election petitions. On December 22, 2011, the NLRB issued a final rule amending its regulations which takes effect today. The final rule provided that any dissenting or concurring statements would be published separately in the Federal Register prior to the rule’s effective date.

Member Hayes’ dissent was just published in the Federal Register, along with a separate concurrence by Chairman Pearce responding to Hayes’ dissent.

In his dissent, Hayes points out that the new rule (1) eliminates the right to seek pre-election review of a regional director’s decision and direction of election; (2) alters the role of the hearing officer in deciding what evidence may be introduced in a pre-election hearing; (3) generally prohibits the filing of briefs after a pre-election hearing; (4) eliminates the automatic right to seek review at the Board in post-election disputes, a right previously included in stipulated election agreements; and (5) most importantly, eliminates the pre-election right to litigate all issues not deemed relevant to the question concerning representation, such as voter eligibility or unit placement of individuals who would constitute 20% or more of a bargaining unit.

Member Hayes points out that the new rule is the subject of pending litigation in the U.S. District Court for the District of Columbia brought by the U.S. Chamber of Commerce.

The full text of the concurrence and dissent can be found at:

https://www.federalregister.gov/articles/2012/04/30/2012-10263/representation-case-procedures#h-24


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Senate Approves Nominations of Mark Gaston Pearce and Brian Hayes to Serve on NLRB

By Edwin S. Hopson

The Washington Post reported today that the U.S. Senate confirmed some 60 Obama nominations including two National Labor Relations Board Member nominations.

Mark Gaston Pearce, a Democrat and lawyer who formerly represented unions and who was given a recess appointment to the NLRB in March, 2010 by President Obama, was confirmed for a term ending August 27, 2013.

Brian Hayes, a Republican who was a member of Republican Senator Mike Enzi’s staff on the Health, Employment, Labor and Pensions Committee and former management-side lawyer, was confirmed for a term ending December 16, 2012.

Craig Becker, also a Democrat and former union lawyer, who was given a recess appointment in March, 2010, was not confirmed.  His current recess appointment will expire at the end of December, 2011, if not later confirmed.  Becker had been nominated in July, 2009, by President Obama for a term that is to expire December 16, 2014.

Member Schaumber, a Republican, is serving a term that expires August 27, 2010.  Chairman Wilma Liebman’s term expires August 27, 2011.

Once Hayes is sworn in, the Board will then be at full compliment for the first time since December 31, 2007.