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President Obama's Five-Member National Labor Relations Board and General Counsel Fired Up and Ready To Go With the Senate's Nuclear Option as a Backdrop




by:
David P. Phippen
Constangy, Brooks & Smith, LLP - Fairfax Office

 
December 30, 2013

Previously published on December 2013

National Labor Relations Board Chairman Mark Gaston Pearce, the four other Board Members, and the newly-confirmed NLRB General Counsel, Richard Griffin, have given public statements indicating that they are now fully engaged and moving forward after the federal government shutdown. According to a statement from Chairman Pearce, it has been more than a decade since the Board last had a full complement of Senate-confirmed members. A continued aggressive pro-organized-labor approach is expected from the Board's Democrat majority and General Counsel.

One item on the Board's agenda, the "quickie election rule," may encounter resistance from the courts. The rule was blocked by a decision from a U.S. District Court in the District of Columbia, finding that the Board had violated the legal procedure for issuing regulations because the required quorum of three Board members had not voted on issuing the regulations. The Board suspended implementation of the regulations and appealed to the U.S. Court of Appeals for the District of Columbia Circuit, but action in that appeal was deferred pending a decision from the Supreme Court in the Noel Canning case. Although former Member Craig Becker's recess appointment is not directly at issue in Noel Canning, the Court's decision could mean that Becker's appointment was invalid. If so, only Chairman Pearce, alone with no other validly sitting Board Member, would have voted to amend the regulations. The Board cannot amend regulations without a quorum of at least three Members.

But the Board apparently is not waiting for the courts to wade through the defective rulemaking and appointments swamp. On December 10, the Board dismissed its appeal in the D.C. Circuit on the "quickie elections" rulemaking issue, in what may have been a prelude to issuing new regulations. Moreover, in a recent public statement, newly confirmed Member Kent Y. Hirozawa, who was Chief Counsel to Pearce when the expedited election regulations were rolled out, confirmed that the Board is considering changes to the election rules. Hirozawa noted that the original formal notice of rulemaking on which the December 2011 rule was based remains in place. Because the notice of rulemaking was more far-reaching than the December 2011 rule, a revised rule could likewise be more far-reaching than the December 2011 rule. Although it is impossible to predict with certainty, any new election regulation by the Board might include the following: (1) a short time (possibly as short as 10-25 days) from election petition filing to election date; (2) limited hearing rights to clarify issues such as the appropriate scope of the election unit and supervisory status of employees before the election takes place; (3) union access to employer property; and (4) union access to employee contact information so that unions can communicate with employees.

Also on the Board agenda may be dealing with any fallout from a decision of the U.S. Supreme Court in the Noel Canning case, which is expected sometime in 2014. Griffin and his predecessor, former Acting General Counsel Lafe Solomon, have each gone on record with statements indicating confidence that the Board's position will be upheld. (Griffin himself was one of the recess appointees). According to Griffin, if the Board's position is upheld the Board will be faced with a slew of cases requiring merit determinations, a situation he apparently believes will be a "full-employment act" for appellate lawyers. On the other hand, a ruling adverse to the Board could affect as many as 837 cases, according to Solomon. And if the holding means that former Member Becker's appointment was also invalid, decisions of the Board even before January 2012 may be tainted. No doubt such a ruling would create "full employment" work for some - maybe the Board and the General Counsel?

The Senate's Democrat majority, having exercised the "nuclear option" to do away with the filibuster of federal district and appellate court judge confirmations, means that President Obama will be able to appoint more judges to the federal courts, which may reverse or at least end the stinging series of losses that the Board has experienced, including the NLRB poster cases, the "quickie elections" case, Noel Canning, and D.R. Horton. No doubt the 3-2 Democrat majority on the Board will be feeling emboldened and confident.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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