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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Supreme Court in Noel Canning Invalidates NLRB Recess Appointments

By Edwin S. Hopson

On June 26, 2014, the U.S. Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), held in a unanimous decision that President Obama’s purported recess appointment of three members (Richard Griffin, Sharon Block and Terence Flynn) to the National Labor Relations Board in January 2012 was invalid. The opinion written by Justice Breyer was joined in by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Scalia wrote a concurring opinion in which Chief Justice Roberts, and Justices Thomas and Alito joined.

Some of Justice Breyer’s key points in his analysis were:

“Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the [recess appointment] Clause.

“Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923– 924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.

“Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business.

“Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125 Stat. 1280.

“We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”

The justices split only over the question of whether the vacancy to be filled had to itself have occurred during the recess or whether it could have occurred prior to the recess. The majority held that the vacancy could occur prior to the recess, based on historical practice.

Justice Scalia, in his concurring opinion, argued that the vacancy to be filled by a recess appointment by the President had to occur during the recess and relied upon the following language contained in the Constitutional provision at issue:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Thus this more restrictive view did not carry the day. However, the NLRB is now left with scores of cases which will have to decided again by the newly constituted Board, which was confirmed by the Senate.


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NLRB General Counsel Reveals Agenda for Change in Board Law

By Edwin S. Hopson

On February 25, 2014, the NLRB’s General Counsel, Richard F. Griffin, Jr., issued a memorandum to Regional Directors and others in the field setting forth mandatory submissions to the Advice Section of the General Counsel’s Office in Washington, D.C.

Many of the matters cited are areas of the law that the new GC (and probably a majority of the Obama Board) wish to change.  The list of matters was divided into three groups.  The first group consisted of cases “that involve General Counsel initiatives or areas of the law and labor policy that are of particular concern to me.”  The other areas involve difficult legal issues or cases where there is no governing precedent.  The final list includes updates regarding case handling that have traditionally been slated for submission to the Advice Section, as outlined in the NLRB Case Handling Manuel.

The first list includes cases involving the applicability of Weingarten principles in non-unionized settings as enunciated in IBM Corp., 341 NLRB 1288 (2004).  Current Board law (established by the Bush Board) only requires application of Weingarten rights to the union setting.  That is, when an employee represented by a union is to be questioned by management, and that questioning could lead to discipline, the employee may request that a representative be present during the questioning.  Previously, the Clinton Board in IBM Corp had expanded the doctrine to the non-union setting.

Thus, it appears that the new GC is going to attempt to change current Board law and will authorize issuance of complaint and require that any case in the non-union setting raising Weingarten issues must be litigated before an Administrative Law Judge and the Board in Washington, D.C. Continue reading


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Supreme Court Hears Arguments in NLRB Recess Appointments Case

By Edwin S. Hopson

The U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning earlier this week.  This case, involved the recess appointment of three members to the National Labor Relations Board in early January 2102 by President Obama. The several issues to be resolved, as specified by the High Court are:

“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.”

The Court also stated:  “In addition to the questions presented by the Petition, the parties are directed to brief and argue the following question:  whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

According to various news reports, many of the Justices appeared skeptical of the government’s position during oral argument.

It may be several months before the Court issues its decision.


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Supreme Courts Sets Date for Oral Argument in Recess Appointments Case

By Edwin S. Hopson

The U.S. Supreme Court has set oral arguments in NLRB v. Noel Canning for January 13, 2014.  This case, involving the recess appointment of three members to the National Labor Relations Board in early January 2102 by President Obama, has several issues to be resolved, as specified by the High Court:

“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.”

The Court also stated:  “In addition to the questions presented by the Petition, the parties are directed to brief and argue the following question:  whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”


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Griffin is Sworn in As NLRB General Counsel

By Edwin S. Hopson

On November 4, 2013, Richard Griffin, Jr. was sworn in as NLRB General Counsel. His term will be for four years.  Griffin had served on the NLRB as a Board Member, having been recess appointed by President Obama in early January 2012.  His appointment, along with another recess appointee, was attacked as invalid.  The Supreme Court will hear that case this term.  As part of a deal this past summer, Griffin and one other recess-appointed Member vacated their position on the Board and President Obama nominated others to fill the vacant positions. Griffin, prior to being appointed to the Board, had been general counsel to the International Union of Operating Engineers.

Also, Griffin announced that Jennifer Abruzzo would be appointed as his Deputy General Counsel and that Rachel Gartner Lennie would be his Assistant General Counsel.


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Griffin Confirmed by the Senate to be NLRB General Counsel

By Edwin S. Hopson

After a successful cloture vote on October 29, 2013, the Senate conducted a roll call vote on the nomination of Richard Griffin, Jr. to be General Counsel at the National Labor Relations Board.  He was confirmed by a vote of 55 to 44.  Once sworn in, Griffin will take over from Lafe Solomon who has been Acting General Counsel since June 2010. Griffin was previously general counsel of a major labor union, and one of the Board Members whose recess appointment was challenged in, among other cases, Noel Canning v. NLRB, which is pending in the Supreme Court.  Griffin’s appointment to the NLRB was withdrawn by the President in a deal this summer to install a fully confirmed Board.