Wyatt Employment Law Report


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President Nominates Sharon Block to be a Member of the NLRB

By Edwin S. Hopson

On July 14, 2014, the White House announced that President Obama was sending to the Senate the nomination of Democrat Sharon Block, currently working as an attorney at the U.S. Department of Labor, to be a Member of the National Labor Relations Board for the term of five years expiring December 16, 2019, replacing Democrat Nancy Jean Schiffer whose term expires in mid-December, 2014.

Block was previously recess-appointed to the NLRB by the President in January 2012. Block and two other recess appointees (including Richard Griffin) were found to have been invalidly appointed in the Noel Canning v. NLRB case by the Supreme Court last month.

In mid 2013, the President nominated new members to the NLRB who were confirmed, and Block and Griffin resigned from the Board. Griffin was later nominated and confirmed as General Counsel of the Board.

This action may forestall a deadlock on the Board should the Republicans win control of the Senate in November 2014, since, if Schiffer is not replaced, that would leave a 2 – 2 split at the Board of Republicans and Democrats.  Without a majority, the Democrats would be unable to decide important issues in cases or issue new regulations impacting labor-managment relations based on a pro-union agenda.


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Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration

By Edwin S. Hopson

The U.S. Court of Appeals for the Fifth Circuit in a split decison in D.H. Horton v. NLRB, No. 12-60031, decided December 3, 2013, rejected the NLRB’s ruling that an agreement between employees and Horton requiring arbitration and prohibiting class or collective actions in arbitration was a violation of the National labor Relations Act.  That agreement also required that all employment related disputes be resolved individually through arbitration.  The Board panel of Pearce and Becker (Hayes had recused himself) had concluded that prohibiting employees from pursuing class or collective action claims in arbitration infringed on substantive rights under Section 7 of the Act. It also held that the agreement discouraged employees from filing charges with the Board.

The court in rejecting the Board’s position on class or collective actions focused on the Federal Arbitration Act which favors arbitration.  After a detailed analysis of the NLRB’s arguments as to why the NLRA should govern, rather than the FAA, the court concluded that the Board’s arguments lacked merit.  However, the court did enforce the Board’s order pertaining to discouragement of employees from filing charges with the Board.

The court also rejected challenges to the underlying Board decision based on the invalidity of Member Becker’s recess appointment and the timing of the expiration of his recess appointment.

The full text of the decision can be found at:

http://www.ca5.uscourts.gov/opinions/pub/12/12-60031-CV0.pdf


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11th Circuit Rejects Recess Appointments Argument in NLRB Case

By Edwin S. Hopson

On November 15, 2013, the U.S. Court of Appeals for the 11th Circuit in Ambassador Services v. NLRB, No. 12-15124, rejected the employer’s argument that the NLRB lacked authority to issue the decision in its case because recess appointments to the Board made by President Obama in January 2012 were invalid.  The per curiam decision is not to be published.  The case conflicts with the Noel Canning v. NLRB decision of the D.C. Circuit which is now before the U.S. Supreme Court.


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NLRB Nominees in the Middle of Senate Dispute Over Proposed Changes to Filibuster Rules

By Edwin S. Hopson

On July 11, 2013, Senate Majority Leader Harry Reid (D-NV) filed cloture on seven nominations including Richard Griffin, Sharon Block and Mark Pearce, all Democrats, to be Members of the National Labor Relations Board.  His motion also included Thomas Perez to be Secretary of Labor.  Republican Minority Leader Mitch McConnell (R-KY) then asked consent for the Senate to vote on Pearce, and NLRB nominees Harry Johnson and Philip Miscimarra, both of whom are Republican (the Republican Senators’ opposition to Members Griffin and Block centers on the fact that they were recess appointed at a time when Republicans contend the Senate was in session).  Reid objected to McConnell’s request setting up a debate over changing the filibuster rules in the Senate, sometimes called the “nuclear option.”

Reid publicly stated that he wants to amend the filibuster rule to exclude the President’s nominations to positions in Executive Departments and Agencies.  Reid contends that it takes only 51 Senators to pass such an amendment to the Senate’s rules.

McConnell and other Republican Senators have come out in strong opposition, indicating that if that takes place, the Senate will evolve into a simple majority institution, like the House of Representatives.

The final outcome may not be known until late on July 15 or sometime the next day.

In the meantime, the NLRB and the two recess appointees, Members Griffin and Block, have come to be in the center of what may turn out to be a major crisis in the Senate.


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Court Invalidates NLRB’s Notice Posting Rule

 By Edwin S. Hopson

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013), regarding the NLRB’s issuance of a regulation in August 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, post a NLRB notice to employees regarding employee rights under the NLRA. The regulation had been stayed pending resolution of the National Association of Manufacturers case.

The court of appeals held that the notice posting regulation was contrary to Sections 8(c) and 10(b) of the NLRA and therefore invalid in its entirety. 

While the court found that the NLRB had a lawful quorum at the time the rule was issued in 2011, it nevertheless stated (without deciding) that former NLRB Member Craig Becker, a recess appointee, was not validly appointed, citing its recent decision in Noel Canning v. NLRB.

The notice posting decision may be found at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/E16F1375FA672CCE85257B64004E8BB2/$file/12-5068-1434608.pdf

 


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NLRB Seeks Review of the Recess Appointments Case in the U.S. Supreme Court

By Edwin S. Hopson

 On April 25, 2013, the government filed its petition for certiorari in the U.S. Supreme Court in NLRB v. Noel Canning, seeking review of the D.C. Circuit Court of Appeals’ decision invalidating President Obama’s January 2012 recess appointments to the Board.  In its 31 page brief, the Justice Department and NLRB lawyers presented two questions for review:

 “1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

 2. Whether the President’s recess appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

 Should the Supreme Court agree to take the case, it would then be briefed and heard, in the ordinary course, during the next term of the Court and a decision would not likely come until some time next year.

 A copy of the petition can be found at:

 http://www.nlrb.gov/sites/default/files/documents/5142/nlrb_v_noel_canning_pet.pdf


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U.S. House of Representatives Passes Bill to Block Certain NLRB Actions Until Recess Appointments Issue is Resolved

By Edwin S. Hopson

On April 12, 2013, the U.S. House of Representatives passed H.R. 1120 which would require the National Labor Relations Board to cease all activity that requires a three-Member quorum until the legality of President Obama’s recess appointments to the NLRB is resolved by the courts or a proper quorum is obtained through Senate confirmation of the President’s nominees to the Board.

In all likelihood, the measure will not pass in the Democrat-controlled Senate.