Posts belonging to Category National Labor Relations Board

No Notice Required

courtroomYou’re always welcome to remind employees of their right to form a union, but it looks like you won’t have to if you don’t want to.

According to a statement issued by the National Labor Relations Board this week, the organization has chosen not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post notifications in the workplace reminding employees of their right to unionize.

In August 2011, the National Labor Relations Board approved a rule obliging employers to display a poster informing workers of the rights afforded to them by the National Labor Relations Act, including the right of employees to organize and bargain collectively with their employers. A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2013, with another panel for the Fourth Circuit doing the same the following month. The NLRB had until last week to file an appeal to the U.S. Supreme Court, which the agency ultimately decided against doing.

That decision was “not unexpected,” says Ronald Meisburg, the Washington, D.C.-based co-head of Proskauer’s labor management relations group and former NLRB general counsel.

“The chance of obtaining Supreme Court review—much less reversal—was very small,” says Meisburg, “and carried the risk of a ruling placing even greater restrictions on the NLRB’s rulemaking authority.”

This development figures to go down well with many business groups, some of which had accused the NLRB of overstepping its bounds in its efforts to make posting the notifications mandatory. Associated Builders and Contractors Inc., for example, had previously described the posting rule as “a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”

The National Association of Manufacturers, meanwhile, quickly issued its own statement on the heels of the NLRB’s announcement that it wouldn’t seek Supreme Court review in the posting requirement rule case. In a press release, the organization states the NLRB “has acknowledged its overreach in the case, permanently validating the NAM’s victory.”

“This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations,” said Jay Timmons, NAM president and CEO.

Nevertheless, the NLRB appears to remain undaunted in its effort to make employees aware of their right to unionize.

In the aforementioned statement, the agency reiterated its commitment to “ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”

There’s A Lot Goin on With Labor This Labor Day

On the heels of Michael J. O’Brien’s blog post below on the growing numbers of over-connected workers celebrating Labor Day this coming Monday, I thought it would also be fitting to call labor union - 164548731attention to the current state of flux — for lack of a better word — involving labor unions as well.

Indeed, there is much to keep your eyes on – this Labor Day and beyond. Here are three developments I thought worthiest, from most recent to least, though they’re all pretty recent and they seem to keep coming:

1) On Aug. 15, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, affirming that the NLRB has broad discretion to determine appropriate bargaining units for union representation elections, including narrow so-called “micro-units.” (Paul Salvatore, our legal columnist, mentioned such micro-units in this recent column.)

This alert from Littler lays it out pretty completely and spells out toward the end what should be of concern to employers:

Targeting smaller groups within an employer’s workforce provides labor unions with a great deal of flexibility. Such groups may be more susceptible to organizing activity than the larger, traditional employee complement that would have been included in a proposed bargaining unit under the [NLRB's] prior standard.  While it is expected that the board and courts will continue to refine the application of Specialty Healthcare in the coming years, employers should be aware that a finding of an appropriate “micro-unit” will be very difficult to avoid in most employer operations.

2) On Aug. 13, U.S. District Court Judge Benjamin H. Settle entered a ruling in favor of an employer based, in part, on what he deemed to be an invalid appointment of the NLRB’s acting general counsel, Rafe Solomon. Specifically, he granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating its employees for engaging in protected activity.

In its motion to dismiss, the employer argued (1) only the NLRB has the authority, after issuing an unfair labor practice complaint, to petition a federal court for injunctive relief, and the NLRB did not at that time have a quorum of three lawfully appointed members; and (2) the NLRB could not lawfully delegate its authority to Solomon because Solomon’s own appointment was also invalid.

This rundown, also from Littler, spells out what the impact and ramifications of this may be, including the fact that the decision “will likely prompt a strong response among employers currently facing unfair labor-practice litigation before the NLRB. The validity, or lack thereof, of Solomon’s appointment will provide an additional affirmative defense for employers.”

3) Lastly, we’re all keeping our eyes on the development I blogged about last month, involving the growing swell of discontent unions seems to be having over the Affordable Care Act. Specifically, three sizeable unions — the Teamsters, UNITE-HERE and the United Food and Commercial Workers — sent a joint letter in mid-July to Democratic congressional leaders blasting the very same healthcare-reform plan they once lauded.

The main gripe — directed to Senate Majority Leader Harry Reid and Minority House Leader Nancy Pelosi by Teamsters President James P. Hoffa, UFCW International President Joseph Hansen and UNITE-HERE President Donald “D” Taylor — is that no one on Capitol Hill seems to be listening to the unions’ fears that the massive reform bill could put an end to nonprofit health-insurance plans “like the ones in which most of our members participate,” as the letter states.

Again, much to mull and keep abreast of. We’ll be addressing these and many more aspects of the state of unions today in an upcoming news analysis on our HREOnline website, so watch for that as well.

And Happy (or at least a highly interesting) Labor Day!




Looking Beyond NLRB Confirmations

Looks like the impasse over National Labor Relations Board appointments might soon be over. Perhaps as early as next week.

President Obama announced yesterday two new nominees for the National Labor Relations Board —Kent Hirozawa and Nancy Schiffer—as part of a Senate deal that averted making changes to filibuster rules. The two replace Richard Griffin and Sharon Block, who were recess appointments.

In a statement, President Obama said:

The National Labor Relations Board is responsible for enforcing protections that are fundamental to growing the economy and creating jobs from the middle class. It gives me great confidence that such dedicated and capable individuals have agreed to join the Board and I look forward to the agency continuing its work to promote better wages and conditions for all American workers.”

courtKent Hirozawa is currently chief counsel to NLRB Chairman Mark Pearce. Before joining the NLRB staff in 2010, he was a partner in the New York law firm Gladstein, Reif and Meginniss LLP, where he advised clients on a variety of legal and strategic issues, including federal and state labor and employment law matters.

Nancy Schiffer was associate general counsel to the AFL-CIO from 2000 to 2012.  Prior to that, she was deputy general counsel to the United Auto Workers from 1998 to 2000.

So what’s this going to mean for employers and HR executives?

Earlier today, I posed that question to Larry Lorber, a partner in Proskauer’s Washington office.

While the new nominees would replace the recess appointments (assuming they’re confirmed), he said, “in terms of ideology and decision making, I’m not sure [Hirozawa and Schiffer] will make any kind of difference.”  (No doubt basing his comment on the backgrounds of the two nominees.)

Nor with a five-member full board finally in place, does it clear up what’s going to happen with the previous decisions that involved recess appointees. “How far back do they go?” Lorber asks. “Do they go back to the decisions involving [Craig] Becker [another recess appointment]?  In all candor, I don’t know. But some of the decisions were quite controversial.”  (As we previously reported, the U.S. Supreme Court in June agreed to hear a case involving President Obama’s recess appointments to the NLRB.)

So stay tuned (we certainly will). Even with these anticipated confirmations, lots of questions still remain.

Supreme Court Will Hear NLRB Appointments Case

The U.S. Supreme Court decided today to hear the highly disputed case involving President Obama’s recess appointments to the National Labor Relations Board.

95527899 -- supreme courtThe decision could ultimately affect hundreds of decisions by the NLRB, many of them made after two appeals-court decisions declared the recess appointments to be unconstitutional. (Here is my past blog post on those decisions, including links with some comments and “no comments” from the NLRB.)

The high court’s decision today to hear the appeal in the case of Noel Canning v. NLRB hasbroad ramifications for the [board], and all employers who may come before the agency,” says Steven Bernstein, an attorney with Fisher & Phillips. If upheld on appeal, the case not only threatens to overturn hundreds of cases decided in the past 18 months, as mentioned above, but “may ultimately put the agency into cold storage for some time, barring any political compromises that would allow the board to continue functioning prospectively,” says Bernstein.

The next big question, says Ronald Meisburg, Washington-based partner and co-head of Proskauer’s Labor-Management Relations Group, “is whether the D.C. Circuit or the Supreme Court will order the board to stop issuing decisions.” That group of cases [decided after the Noel Canning ruling declared the recess appointments -- and therefore the makeup of the NLRB -- unconstitutional] will be argued in September in the D.C. Circuit.

I blogged about these post-Noel Canning cases as well, just after the House Education and the Workforce Committee’s passage during the March 18 week of a bill requiring the NLRB to cease all decision-making until the legal status of the board’s members is resolved. That link also includes one to the entire case history. Complete with a boxing-match illustration, it also suggests a standoff was going on between the NLRB and the House. And this analysis on our website, HREOnline, offers a detailed look at the political chess game and legal tug-of-war Obama and other presidents have played with NLRB appointments.

No date has been set yet for the Supreme Court hearing, but this link from the LegalTimes blog does include the high court’s orders list.

Whatever comes of the hearing, “one thing remains certain,” says Bernstein. “The agency’s authority will continue to swirl in uncertainty until the matter is resolved, which may not happen until early next year. In the meantime, employers and unions alike are expected to continue asserting challenges to the NLRB’s legal authority.”



More Fire-Stoking in NLRB Recess-Appointment Saga

A second slam against President Obama’s recess appointments to the National Labor Relations Board has pundits talking not just about the appointments, but about the overall SO001506impact on the notion of recess appointments altogether.

The decision Thursday by the U.S. Court of Appeals for the Third Circuit in NLRB v. New Vista Nursing and Rehabilitation is the second decision by a circuit court to hold that intracession recess appointments (those made during a recess within a session) violate the Recess Appointments Clause of the U.S. Constitution.

As this alert from Ballard Spahr points out, in the earlier ruling in Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit concluded Obama acted unconstitutionally when he made three recess appointments to the NLRB. As Ballard Spahr noted previously, ”if upheld by the Supreme Court — which is considering the NLRB’s petition for certiorari [or the high court's review] — Noel v. Canning will invalidate the hundreds of board decisions in which the three appointees participated,” its latest alert states.

One issue at stake in this most recent New Vista ruling is the legitimacy (make that the illegitimacy) of the appointment of former NLRB board member Craig Becker, who was appointed during an intrasession recess of the Senate and was part of the panel that ruled against New Vista. At the Third Circuit, says the Ballard Spahr alert, “essentially adopting the reasoning of Noel Canning, a divided panel concluded that the words ‘the Recess’ in the RAC refers only to an intercession [between-sessions] recess of Congress … .”

Michael Lotito, employment attorney and co-chair of San Francisco-based Littler’s Workplace Policy Institute, cites what you might call the crux of the ruling in this comment on a LinkedIn group site: “Footnote 22 beginning on page 61 [of the New Vista ruling] sums it  up: The president could not do what he did. The recess appointments are toast.” (Look it up in my link above.)

For additional background on all this, including case synposes, here is Morgan Lewis’ take, as posted on the National Law Review website, and here is my latest post on this blog, with links to past posts explaining the controversy around Noel Canning. Also, though the NLRB has not issued a statement about this latest ruling on its website, it does provide this link to a video and opening statements “for the May 16, 2013, Senate committee hearing on pending nominations to the National Labor Relations Board.”

As for the implications of the two rulings, Morgan Lewis paints a pretty clear picture:

The Third Circuit’s decision, particularly when paired with Noel Canning, is far-reaching and critically important, particularly for employers involved in [NLRB] proceedings since March 2010. The invalidation of Becker’s appointment also affects a number of board actions during that time, including the ‘quickie’ election rules — providing for a much faster [union] election process — and the decision in D.R. Horton — invalidating class and collective-action waivers in employment-arbitration agreements. The Third Circuit and the D.C. Circuit have drawn a roadmap for challenging the validity of three years’ worth of board decisions and are now the likely forums of choice for such challenges.”

More succinctly, as this release on the Hot Air site puts it, the rulings have “the potential, not just to mess with these appointments, but with the tradition of the recess appointment, more broadly.”


Another Blow to the NLRB: Poster Rule Struck Down

Gavel and PapersJust in case you missed this, the U.S. Court of Appeals for the District of Columbia struck down yesterday a federal rule that would have required employers to nail posters to their bulletin boards or common-area walls informing employees of their rights to unionize.

This Associated Press account on the Newsday site calls the decision against the National Labor Relations Board in National Association of Manufacturers v. NLRB “another blow to the nation’s dwindling labor unions.”

It also specifies details of the ruling, stating that the NLRB violated employers’ free-speech rights in trying to force them to display the posters or face charges of committing an unfair labor practice.

“The court’s ruling is the latest success for business groups that have worked to prevent the NLRB from shifting the legal landscape in favor of labor unions, despite President Barack Obama’s appointment of several labor-friendly board members,” the AP account says.

Here is my latest blog post on this poster controversy, containing links to my previous posts, which should give you a good chronological journey through this tussle.

Meanwhile, this legal alert on the Arent Fox site reminds us that Tuesday’s appeals-court decision on the poster rule comes less than four months after the same court invalidated Obama’s recess appointments of three NLRB members.

Here are three separate blog posts by me on this recess-appointments controversy — from April 2, March 20, and Feb. 19 — for your reading pleasure.

Lastly, this link from Practical Law Co. spells out the reasons behind the DC Circuit decision regarding posters. The court, it says, “held that the NLRB’s poster rule is invalid because each of the three ways in which the NLRB would enforce its poster rule was invalid. In particular, the court found that the NLRB could not lawfully:

  • Make a failure to post the notice an unfair labor practice (ULP).
  • Interpret a failure to post the notice as evidence of anti-union animus in NLRB proceedings.
  • Toll the six-month statute of limitations indefinitely for employees to file ULP charges against an employer that fails to post the notice.”

As always, I will try to keep you posted on developments.

Is There a Face-Off Under Way Over NLRB Decisions?

104240128--legal, business conflictI know I’ve been writing a lot about the National Labor Relations Board on this blog, but I am truly no authority. Just a curious observer, especially considering the weight the board’s decisions hold and the impact they have on the readers of our magazine.

So my latest curiosity has to do with this recent post on the HR Policy Association’s website, detailing the House Education and the Workforce Committee’s passage during the week of March 18 to 22 of a bill requiring the NLRB to cease all decision-making until the legal status of the Board’s members has been resolved.

As the post states, the “Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) was prompted by the recent decision in Noel Canning by the D.C. Circuit effectively nullifying the recess appointments of two of the three sitting Board members, thus bringing the Board below the three-Member quorum required for Board decisions.”

For reference sake, here is my latest blog post on the NLRB’s decision to seek the U.S. Supreme Court’s review of Noel Canning v. the National Labor Relations Board, along with a link to the actual decision in that case. As I note there, the NLRB has until April 25 to get its review petition to the highest court. The HRPA says in its post that the Supreme Court review probably won’t happen until “next fall at the earliest.”

Here’s how Committee Chairman John Kline (R-Minn.) sums it up in the HRPA piece:

The best way to avoid further damage is for the President to work with the Senate to confirm a full slate of qualified nominees.  In the meantime, Congress must take action to prevent a bad situation from becoming much worse.  H.R. 1120 is an appropriate congressional response that will help ensure America’s workplaces aren’t forced to confront even more uncertainty.

Meanwhile, and this is where my curiousity comes in, here is the NLRB’s summary of decisions for the week of March 25 through 29. Looks like there’s no slowing down there. And I’m not hearing or seeing any evidence that this committee’s bill passage has gotten the NLRB’s attention or raised its concern. No statements or news stories there that I can find.

Just curious. Just sayin.

Clarity Coming Soon on NLRB Recess Appointments

95527899 -- supreme courtIn case you haven’t heard, the sticky wicket involving those recess appointments to the National Labor Relations Board that President Obama made back in January 2012 will be going to the U.S. Supreme Court for final resolution.

No surprise really. Just official.

Here’s the NLRB’s very brief statement on the matter. It says its review petition (a.k.a.,  certiorari) must be to be on the top court’s desk by April 25.

I was alerted to this through this commentary from Tom Donohue, president and CEO of the Washington-based United States Chamber of Commerce, which appeared in the Weekly Standard and the Washington Examiner, stating that clarity could be on the way for those regulated by the NLRB.

As Donohue writes:

Finally heeding calls by the business community to address the issue soon, the NLRB announced last week that it will seek U.S. Supreme Court review of the decision. This is an important step toward resolving the tremendous confusion created by the controversial recess appointments. In the meantime, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future.”

For review’s sake, here’s my most recent blog post on the appointments and how the recent appeals-court decision in Noel Canning v. the National Labor Relations Board invalidating them came into play in a subsequent court case.

Could get dicey. Donohue’s commentary sounds like he’s up for a fight:

Our preference is always to work within the legislative and regulatory processes to protect the interests of job creators and employers. But when the administration oversteps its bounds, when it tramples the rights of businesses and individuals, when it seeks to bypass other branches of government, we’ll take the fight to the courts. And we’ve got a pretty good record of winning.”




NLRB Constitutionality Issue Raised in Hearing

Had an interesting chat recently with Ron Chapman — Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart, and outside counsel for D.R. Horton Inc.

Gavel and JudgeHorton, a Fort Worth, Texas-based homebuilder, is appealing the National Labor Relations Board’s January 2012 ruling that its individual-arbitration mandate every employee was required to sign, waiving their rights to class action, violated Section 7 of the National Labor Relations Act protecting employees’ rights to take such action to improve their working conditions.

Chapman had argued before the Fifth Circuit Court of Appeals in Horton’s behalf on Feb. 5 and said the hearing “went well.” (Here is a link to recordings of all the oral arguments presented in that case that day. Scroll down; you’ll find it. Here, too, is a piece that ran recently in the Dallas Business Journal offering some additional background.) Chapman expects the court to rule within 60 to 90 days.

What was especially interesting, Chapman told me, was the follow-up he received from the court three days after the argument. The court, he said, was directing both sides’ attorneys to draft additional briefs arguing whether they think the constitutionality of the NLRB board make-up at the time of its decision needs to be addressed before a ruling can be made. (As you’ll recall, in its recent decision in Noel Canning v. the National Labor Relations Board, a panel of the U.S. Court of Appeals for the D.C. Circuit invalidated the recess appointments of three members of the NLRB because, the court found, the U.S. Senate was not in recess at the time President Barack Obama made the appointments.)

For reference, here is an HREOnline blog post by Web Editor Mike O’Brien about that appeals-court ruling declaring Obama violated the Constitution when he bypassed the Senate to fill the NLRB vacancies. Here, too, is a Q&A O’Brien conducted with Joel S. Barras of Reed Smith on the ramifications and implications of that ruling.

Interestingly, this is the first case I’ve come across in which attorneys for both sides are being asked for their opinions as to whether a ruling can go forward or not without first addressing the constitutionality of the NLRB make-up in question.

Obviously, if Chapman and his counterpart both rule the appeals court’s decision should proceed without any bearing from the Canning case, then it will proceed. But, as Chapman told me, “if we both were to say it should not proceed until the constitutionality issue is addressed, then the board would not decide this case at this time.”

If you consider Barras’ description of such scenarios and multiply them out to all the cases decided by the NLRB with the Obama appointees, it could get messy:

It is important to note that, even if [regional] cases are invalid and the NLRB members lack the authority to take direct action, many of the board’s processes will continue. The various NLRB regions will continue to investigate unfair labor practice charges, issue complaints and try cases. Administrative law judges will continue to issue decisions and find violations of the Act.

The losing party, however, will likely appeal the decision to the board, which will effectively stay the [administrative law judge's] decision. That case will then be left in limbo until a quorum is properly appointed and rules on the decision, which would likely be delayed given the tremendous backlog of cases. In some limited instances, the board’s general counsel may seek injunctive relief in federal court to force a losing party who has appealed the decision to comply with the [administrative law judge’s] order, pending the NLRB’s eventual decision.




Employer Required to Give Union Sensitive Information

Yet another court decision you should file away somewhere — in your memory for starters. This one’s courtesy of Ballard Spahr, via a legal alert that came across my desk.

It seems the U.S. Court of Appeals for the District of Columbia Circuit upheld on Dec. 4 a controversial National Labor Relations Board ruling that required an employer to provide a union with sensitive information about customers and pricing. The union sought the information to support the employer’s claim that it must reduce employee wages due to competitive pressures. The ruling, says the alert, “demonstrates that employers must be careful when explaining proposed contract provisions.”

The case, KLB Industries Inc. vs. NLRB, involves the bargaining of a new contract. The employer sought in September 2007 to reduce wages 10 percent over two years in a final contract offer, claiming that the wage reductions were needed to address competitive market pressures. The next day, the union made a written request for information that sought a list of   current customers, price quotes, market information, outsourcing data and savings that would result from a wage cut. KLB refused to turn over the information, citing a desire to remain competitive. After a lockout, the union filed an unfair labor charge that the NLRB eventually upheld.

In its 2-1 vote in this ruling last week, the D.C. Circuit found that, because the union tailored its information request to the employer’s competitive-pressures claim, a denial of that request would constitute an unfair labor practice. The ruling, says the alert, affirms NLRB’s application of a “liberal discovery-type standard” when reviewing a union request for proof of an employer’s assertion of competitive pressure.

The dissenting judge, by the way, disagreed, stating that, because the employer made only generalized statements, it triggered no duty to produce information. Nevertheless, the majority opinion shows that even seemingly general statements can create a duty to produce sensitive information under the NLRB’s “liberal discovery-type standard.”

Ballard Spahr cautions that the case “represents yet another example of how broadly the current NLRB views the duty of employers to provide information to unions both during contract negotiations and when otherwise monitoring the collective-bargaining agreement on behalf of the employees they represent.”

File away.