Terence Flynn, a Republican, nominated to the Board by President Obama has resigned from the National Labor Relations Board (NLRB) effective July 24, 2012. In the interim, Flynn has recused himself from all agency activities.
Flynn was one of three recess appointments made by the Obama Administration.As the constiutitonality of these appointments remains suspect, each one is currently being contested in court. Specifically, the lawsuit filed against these appointments claims that, becayse Congress was technically in session when the appointments were made, the Administration lacks the authority to make an "interm" appointment.
Flynn’s resignation now leaves the NLRB with three Democratic appointees, and just a single Republican. Considering the current political climate in our nation's capital, its unlikely the President will make another appointment before the 2012 election. And should the President buck conventional widsom and make a new appointment, the odds of such an appointment being Republican are almost zero.
Flynn’s resignation sets the stage for another political battle between the administration and the Congress over a NLRB appointee. This new battle will continue even as litigation over the temporary appointment continues in the court.
It is unlikely we will see a resolution of this issue until after the elections this Fall.
In an important victory for employers and proponents of individual freedom, U.S. District Judge James Boasber threw out a recent NLRB “Snap” election mandate.
Woody Allen and the Quorum Requirement
“According to Woody Allen, eighty percent of life is just showing up,” Boasberg wrote in an opinion issued today. “When it comes to satisfying a quorum requirement, though, showing up is even more important than that.”
In this case, Boasberg held that only two of the three members of the Board actually voted on the rule—3 members are required to constitute a quorum. Although the Board claimed its "snap" election rule was based on a 2-1 vote, the Board’s sole Republican member, Brian Hayes, was not able to cast his vote, as he was given only a few hours notice via the NLRB’s electronic ballot system. Boasberg ruled that, despite the Board’s claims to the contrary, Hayes’ inability to vote did not constitute a vote. Therefore, with a final vote of just 2-0 on what’s supposed to be a five-member Board, the court ruled that there was no quorum and therefore the rule was invalid.
As a result, representation elections will continue under previously established procedures unless the board votes with a proper quorum.
Bottom Line for Employers
Boasberg’s decision is, most likely, a temporary reprieve for employers. Given that Obama has (through dubious recess maneuverings) appointed new members to the Board, the passage of yet another Snap election rule seems likely—as does the another battle over whether a quorum exists. Until the President stops playing games with recess appointment—or a more business friendly President is elected—employers should expect uncertain regulatatory climates to persist.
Last week, we predicted that the NLRB's "employee rights" posting requirement would be postponed. Sure enough, the Board has announced that, in light of the DC Circuit Court of Appeals recent enjoinment against the posting requirement, this new regulation has been delayed.
Therefore, the April 30, 2012 deadline for employer implementation of this rule is no longer in effective. Employers, however, should remain vigiliant, as its likely the Board will continue to press this issue.
This morning, April 17, 2012, the United States Court of Appeals for the District of Columbia granted an emergency injunction delaying the implementation of the NLRB Notice Posting rule. The court will hear oral arguments to fully review the law and issue a ruling expected sometime this summer. This ruling by the court of appeals comes on the heels of the decision on Friday, April 13, 2012 by the District Court of South Carolina invalidating the whole NLRB Notice Posting rule.
The National Association of Manufacturers (NAM) and the Coalition for a Democratic Workplace asked for the injunction after U.S. District Judge Amy Berman dismissed their legal challenge last month.
“The facts in this case and the law have always been on the side of manufacturers, and we believe that granting an injunction is the appropriate course of action for the court. The ‘posting requirement’ is an unprecedented attempt by the board to assert power and authority it does not possess,” said Jay Timmons, NAM’s president and CEO, in a statement.
Other business groups celebrated the injunction.
“For the last several months, [Associated Builders and Contractors (ABC)] has vigorously fought NLRB’s politically motivated policies that threaten to paralyze the construction industry in order to benefit the special interests of politically powerful unions,” said Geoff Burr, ABC’s vice president of federal affairs, in a statement. “The NLRB’s notice posting rule is a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”
Bottom Line for Employers
In our opinion, these decisions will require the NLRB to postpone the April 30, 2012 date. Check back here for more information.
On January 20, 2012, the Acting General Counsel, Lafe Solomon, of the National Labor Relations Board (Board) issued a memorandum recommending the Board revise its policy for deferring unfair labor practice charges to arbitration. Presently, the Board will defer a charge to the parties collectively bargained arbitration process for resolution.
Under the suggested policy, the Board will not permit deferral of Section 8(a)(1) and 8(a)(3) charges unless the arbitration process can be completed in a year. If it cannot be completed in a year, Acting General Counsel expects the Region to conduct a full investigation of the charge and if found to be meritorious, the case should be sent to the Division of Advice for further action. The change in the deferral policy will not effect of the Board’s approach to Section 8(a)(5) allegations involving breach of contract.
The stated rationale for the Acting General Counsel’s position is his concern that undue delay in the arbitration process caused by deferral renders any potential Board remedy meaningless given the passage of time.
Bottom Line for Employers
This memorandum by the Acting General Counsel continues his trend to revisit long-settled legal principles of the National Labor Relations Board and revise them where he deems it appropriate.
In a shocking political powerplay, Present Obama made three recess appointments to the National Labor Relations Board: Sharon Block, Terence Flynn, and Richard Griffin. Block and Flynn are Democrats, while Griffin is a Republican.
While Obama's appointments ensure the NLRB will not be powerless for the next 12 months, questions have already begun to swirl as to whether the President's actions are constitutional. Specifically, Article One, section Five of the Constitution states:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days...
As The Washington Examiner has pointed out, this clause "presents a problem for President Obama, who claims to have just made a recess appointment when the Senate is not actually in recess. The Constitution says the Senate cannot recess for more than three days without the House's permission. The House has not granted permission, and as a result both houses have been holding pro forma sessions out of constitutional necessity."
Regardless of whether the President's actions are ultimately constitutional, they ensure that the Board will remain both active and Labor-friendly throughout 2012.
Bottom Line for Employers
Today's NLRB appointments look to be cut from the same partisan cloth as Obama's previous appointments. Look for the Labor-friendly approach of the 2011 Board to continue through the end of the year.
On Wednesday, November 30, the Board adopted a resolution incorporating some of its prior proposals for “quickie” or "snap" elections. While the Board did not adopt its previously proposed rule, it did vote to accelerate the voting process for union elections.
As presently constituted, the Board has only three members, two of whom are union attorneys appointed by President Obama. And of these two union attorneys, one was a recess appointment whose term expires at the end of 2011. Therefore, beginning next year, the Board will only have two members left—and without a quorum of at least 3 members, the Board cannot enforce its decisions. Any wonder why the current Board is rushing to get such unpopular rules, such as “snap elections,” passed?
Danger: New Board Rules Ahead
The new “snap” or “quickie” election rule must be drafted and approved by the Board. The new rule will:
- Empower the hearing officer the authority to limit evidence to be introduced at the representation hearing;
- Allow the submission of a post-hearing brief only at the discretion of the hearing officer;
- Eliminate the employer’s right to seek review of the Regional Director’s pre-election rulings;
- Eliminate the present requirement that the Regional Director normally not schedule an election until 25 to 30 days after the direction of the election; and
- Make post-election Board review of Regional Director’s and ALJ’s post-election disputes discretionary.
Fortunately for employers, the Board resolution did not include parts of the earlier proposed rule including a the requirement that employers make available the email address and telephone numbers of employees on the Excelsior list, and change the period of filing for the Excelsior list from seven to two days.
Bottom Line for Employers
If the Snap Election Rule as presented above is adopted, it will significantly aid the unions and union representatives in their attempts to organize employees. Employers will have considerable less time to communicate their positions on unionization to employees.
These proposed changes also hurt employees, who will now be denied the opportunity to learn what unions can, and cannot, do.
If this proposed rule is adopted, the National Labor Relations Board will do what the United States Congress could not when it failed to pass the union’s “card check” bill: Attempt to reverse a decade-long decline in private sector union membership—at the expense of both employers and employees.
-Bud O’Donnell specializes in matters before the National Labor Relations Board including representation elections and unfair labor practice hearings. He also advises clients on plant closings and relocation issues, and has represented clients in collective bargaining, grievance arbitration and strike consultation in numerous industries.
In a shocking decision, the NLRB has scheduled for Nov. 30 a vote on a modified version of the proposal to shorten union election periods.
As Siegel O’Connor previously noted, current Board member Craig Becker’s term is due to expire at the end of the year, leaving the ordinarily five-member Board with just two members. The Supreme Court recently held that the NLRB must have a “quorum of three members” in order to fully exercise its powers. Therefore, in order to secure passage of this controversial SNAP election regulation, the two Democratic members of the Board have decided to rush forward with a vote next week.
And not only are the two Democratic members of the Board rushing this vote but, as Tina Korbe at Hot Air documents, they’ve excluded the sole Republican member of the Board, Brian Hayes, from the revision process. Specifically:
- Hayes has not been informed of how the rest of the Board plans to address the responses received during the proposed rulemaking comment period last summer;
- Hayes has not been informed of what portions of the proposed rule will be excluded, included, or modified in the final version; and
- Hayes was offered a “take-it-or-leave-it proposal last Tuesday, and he was given three days—3 days—to respond. Potentially dissenting members are traditionally given 90 days to act on a proposed draft.
In response to this treatment, Hayes has sent a letter to Members of Congress. Unfortunately, given the current political make-up of Washington, any remedial actions taken by the House will likely be defeated in the Senate.
Bottom Line for Employers
Can anyone stop the Board from imposing SNAP elections on employers across America? Board Member Hayes still has one card left to play: He can resign immediately, leaving the Board with only two members, and stripping it of rulemaking power. Such a move would be drastic, to be sure. But with employers still struggling to survive in a tough economy, this country simply cannot afford SNAP elections.