Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

Now that the National Labor Relations Board is at full strength for the first time in two-and-a-half years, earlier today, the Board issued some guidance regarding how it intends to handle cases remanded in light of the Supreme Court’s New Process Steel decision.  Between December 2007 and March 2010, the Board's only two Members -- current Chairman Wilma Liebman and Member Peter Schaumber -- continued to issue decisions on behalf of the Board.  They decided nearly 600 cases on which they could agree, while holding aside all others for future Board action.

On June 17, 2010, the Supreme Court ruled that the two Members lacked the authority to act on behalf of the Board, effectively rendering all of those Orders invalid.  According to the Board's statement today: 

At the time of the June 17 Supreme Court decision, 96 of the two-member decisions were pending on appeal before the federal courts – six at the Supreme Court and 90 in various Courts of Appeals. The Board is seeking to have each of these cases remanded to the Board for further consideration.

Each of the remanded cases will be considered by a three-member panel of the Board which will include Chairman Liebman and Board Member Schaumber. Consistent with Board practice, the two other Board members not on the panel will have the opportunity to participate in the case if they so desire.

It is unclear at this time how many of the two-member Board rulings not already challenged in the federal appellate courts can or will be contested and how many may now be moot.

Additional commentary:

• "The NLRB's Plan in Wake of New Process Steel" -- Workplace Prof Blog
• "Second Circuit denies NLRB petition in light of New Process Steel" -- Justin F. Keith, Greenberg Traurig (via Lexology)

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The National Labor Relations Board is now at its full complement of five Members for the first time in over two-and-a-half years.  Following his Senate confirmation last week, on Tuesday evening, Brian Hayes was sworn in by Senator Mike Enzi (R-WY) at his offices in the Russell Building.  

According to the press release issued by the Board:

Before joining the Senate staff, Mr. Hayes was in private practice for 25 years representing management clients in labor and employment law. He began his legal career as a clerk for the NLRB’s Chief Administrative Law Judge, and later served as counsel to the Board Chairman. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center.

Regarding the Senate's confirmation of Member Hayes, Sen. Enzi issued the following statement:

Brian Hayes will bring a valuable combination of private sector and prior NLRB experience to this new position,” said Enzi.  “Additionally, Brian has been a trusted member of my staff in the Senate as my Labor Policy Director and he will be missed here in the Senate.  Brian received broad support from Committee Members on both sides of the aisle, met with Senators, answered their written questions in detail and showed that he is well-qualified and would be impartial on the board.  I am pleased that Brian will now begin his service in this important role.

For at least a month now, the Board will find itself at full strength.  Member Peter Schaumber's term expires in August of this year.  Chairman Wilma Liebman’s term will expire in August of 2011, and Member Craig Becker's recess appointment is due to expire at the end of 2011.  Mr. Hayes' confirmed appointment will expire in December 2012, while Member Mark Gaston Pearce's confirmed term will end in August 2013

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A federal judge in the District of Columbia has granted judgment in favor of the National Mediation Board, allowing a rule change in the way union representation elections are decided  to proceed effective July 1, 2010.  In Air Transport Association of America, Inc. et. al. v. National Mediation Board, et al., 10-CV-804, District Court Judge Paul L. Friedman issued a brief Amended Order and Judgment yesterday, denying the airline association's motion for injunctive relief and granting summary for the National Mediation Board (NMB) and intervenor, the International Brotherhood of Teamsters. 

On May 11, 2010, the NMB announced that it was changing a decades-old rule regarding the way votes are counted in union representation elections under the Railway Labor Act (RLA).  Previously, in elections under the RLA, a union would only be certified as a bargaining representative of a group of employees if a majority of all eligible voters cast ballots in favor of unionization -- the "majority in unit" standard.  The new standard, the "majority of votes cast" standard, is essentially the standard applied by the National Labor Relations Board in elections under the NLRA -- a union is declared the representative of a unit of employees if a majority of the employees who cast valid ballots vote for union representation.

On May 17, 2010, the association of airlines filed suit, and a few weeks later, the NMB agreed to hold up implementation of the rule until June 30, while the Court considered the parties' respective motions.  The judge's order allows for the July 1, 2010 implementation of the rule.  A more thorough explanation of the decision is expected early next week.

A Bloomberg Business Week online article reports the reactions of the parties thus:

“Non-participation rates are high,” Tamra Moore, an attorney for the National Mediation Board, the panel that issued the rule, said in a June 21 hearing. “That doesn’t mean they don’t want representation. There are many reasons why people don’t vote.”

 *  *  *

“We are disappointed with the Court’s ruling and believe the National Mediation Board does not have the authority to impose this new rule,” the association said in an e-mailed statement. “We will thoroughly study the decision to determine what, if any steps ATA will take, including exercising our right to appeal the ruling.”

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Yesterday's BNA Daily Labor Report (subscription required) repeated a comment Senator Tom Harkin (D-IA) made this week on a liberal talk show regarding the Employee Free Choice Act's prospects:

Harkin told the Bill Press radio show that he is “still trying to maneuver” in an effort to get the necessary 60 votes to move the bill through the Senate.

 

“To those who think it's dead, I say think again,” Harkin said, adding “…a lot can happen before Election Day, or maybe in lame duck too.”

The piece then chronicles the Senator's past statements about the bill's fate, which BNA suggests tend to depend on the audience to which they are made:

Harkin made the comments about a week after telling the United Auto Workers that he would fight for the legislation “for as long as it takes” (114 DLR C-1, 6/16/10).

 

In May, however, Harkin acknowledged to a legal conference, where participants were largely against the bill, that he still does not have enough votes to pass the bill as written (92 DLR A-8, 5/14/10). Also, just days before that, he told the International Association of Machinists that he had “no higher priority” than getting EFCA signed into law (90 DLR A-7, 5/12/10).

It remains nearly impossible for EFCA in its current form to pass a Senate filibuster in the current Congress.  In a previous statement on the bill, Senator Harkin asserted that he had the 60 votes needed on an undisclosed alternative bill -- but that was prior to the passing of the late Sen. Ted Kennedy (D-MA) and his replacement in the Senate by Sen. Scott Brown (R-MA).  As partisan lines have been drawn sharper since then, it may be questionable whether even some modified version of the bill could pass between now and the next Congress.  

In the run-up to the 2010 midterm elections, however, EFCA is certain to keep labor law reform in the news.

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Earlier today,the Senate unanimously confirmed the nominations of Mark Gaston Pearce and Brian Hayes to be Members of the NLRB.  For the first time since December 2007, the Board now has a full complement of Members... until August.  That is when Member Peter Schaumber's term expires. 

This afternoon, Member Schaumber released a statement criticizing an environment which allows Board vacancies to go unfilled for long periods of time:

The Act contemplated the nomination and confirmation of one Board member each year as a term expired. The practice has developed in recent years, however, of packaging nominees for two or more vacancies and of using short-term recess appointments to fill in while the package is nominated and confirmed.   The result is a merry-go-round in Board appointments with resulting delays in the issuance of the Board’s most significant cases.

Today’s Senate confirmation of two long-pending nominees to the Board, while welcome, does not change the fundamental problem that exists. We are a full board now, but it is only for a short time as my term expires this August and the Chairman’s term expires the following year.

The Court’s decision and the events that precipitated it call for reconsidering the entire process for the selection of Board members, the wisdom of packaging Board nominees and the impact of that practice on the Act’s promise of a National Labor Relations Board composed of “impartial government employees.”

We have speculated a number of times that the endgame on the Board's make-up will likely involve some brokered packaging of Member confirmations and a new General Counsel. 

Writing in a January 2009 white paper on the Employee Free Choice Act, and possible alternative labor law reforms, we similarly noted the problems caused by Board vacancies, often prolonged by partisan politics, suggesting:

Any procedural amendments to prevent the crisis of the last year, or to provide a stronger sense of the value of precedent in Board decisions, would serve only to stabilize labor relations overall.

In a Policy Essay published in the 2008 Harvard Journal on Legislation, Senator Arlen Specter, then a Republican from Pennsylvania, struck a similar note.  The Senator suggested numerous questions that might be asked in any serious effort to advance labor law reform.  Among them:

Would the Board gain legitimacy if Board Members were more insulated from the political appointment process, perhaps through longer terms or a different appointment process?

Time will tell if the current events and developments of the next few months provide an opportunity for the exploration Member Schaumber invites today.

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The Senate today has unanimously confirmed Mark Gaston Pearce and Brian Hayes as members of the National Labor Relations Board.  President Obama had nominated the two, along with nominee Craig Becker, in July, 2009.  After a Senate filibuster held the nominations up on account of Mr. Becker's inclusion, in March, 2010, President Obama made recess appointments of Mr. Becker and Mr. Pearce.  At that time, the President declined to take any action on the nomination of Mr. Hayes, the sole Republican nominee.

Mr. Hayes' confirmed appointment will expire in December 2012, while Mr. Pearce's term will end in August 2013.  The National Labor Relations Board (NLRB) issued a press release noting:

When Mr. Hayes joins the Board, the NLRB will be at full five-member strength for the first time since December 2007. The Board operated with only two members for 27 months, until April 2010, as confirmation of nominees named by Presidents Bush and Obama were stalled. The two members issued about 600 decisions in matters on which they could agree. However, last week a divided Supreme Court ruled that they were not authorized to do so.

Member Peter Schaumber's term expires in August of this year.  Chairman Wilma Liebman’s term will expire in August of 2011, and Member Craig Becker's recess appointment is due to expire at the end of 2011.  In our post this past weekend about the appointment of Lafe Solomon to be Acting General Counsel, we speculated

With two Republican seats to be open, two Democrats sitting temporarily via recess appointment, and the GC position to be filled permanently, we might look for the White House and Senate to approach a comprehensive compromise to obtain Senate confirmation on all these positions sometime in the late Summer or early Fall. 

Today's announcement may not change that overall approach, but it certainly removes the questions regarding the status of Mr. Hayes and Mr. Pearce.  And in light of the recent New Process Steel decision, ensures that the Board will continue to have at least three Members sitting beyond the expiration of Mr. Schaumber's term.

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The National Labor Relations Board late today announced that President Obama has named veteran NLRB attorney Lafe Solomon to serve as Acting General Counsel.  The designation is effective Monday, June 21, 2010 -- the day after the recently announced resignation of current General Counsel Ronald Meisburg becomes effective.

The Board's announcement notes:

Mr. Solomon, who began his agency career as a field examiner in Seattle in 1972, directed the NLRB’s Office of Representation Appeals for the past decade. Previously he served in various positions on the General Counsel and Board side of the agency, including as staff attorney to 10 Board members. (The Board members were Don Zimmerman, Donald Dotson, Jerry Hunter, John Higgins, James Stephens, Mary Cracraft, John Raudabaugh, William Gould, Sarah Fox and Wilma Liebman). He earned a B.A. degree in Economics from Brown University and a J.D. from Tulane University.

Longtime observers of the NLRB will note that the Members named above for whom Mr. Solomon has served are fairly evenly split between Republicans and Democrats. 

We know what at least one current Board Member thinks of Mr. Solomon via LinkedIn.  While a partner at Creighton, Pearce, Johnsen & Giroux, current Member Mark Gaston Pearce described Mr. Solomon as an “outstanding and efficient director of a very busy and detail oriented Unit of the National Labor Relations Board”.

Mr. Solomon comes into his position just as the Board will be trying to figure out how to address the numerous possible Orders it will find vacated and remanded in the wake of last week's SCOTUS decision in New Process Steel.  General Counsel Meisburg's term was set to expire in August 2010 -- around the same time as the term of sole Republican Member Peter Schaumber.  With two Republican seats to be open, two Democrats sitting temporarily via recess appointment, and the GC position to be filled permanently, we might look for the White House and Senate to approach a comprehensive compromise to obtain Senate confirmation on all these positions sometime in the late Summer or early Fall.

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The United States Supreme Court today handed down its long-awaited decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.  The Court ruled that for 27 months, beginning in December 2007 and ending when President Obama's March 2010 recess appointments were sworn-in, Chairwoman Wilma Liebman and Member Peter Schaumber alone were not authorized to act on behalf of the Board.  This decision calls into question the status of some 600 decisions handed down by the "two-member Board" during this time.

The 5-4 decision describes its holding thus:

The first sentence of [29 U.S.C.] §3(b), the so-called delegation clause, authorizes the Board to delegate its powers only to a "group of three or more members." This clause is best read to require that the delegee group maintain a membership of three in order for the delegation to remain valid.

The majority opinion posits that ""had Congress intended to authorize two members to act on an ongoing basis, it could have used straightforward language."   Justice Stevens' opinion acknowledges the Board's "understandable desire to keep its doors open," and "the costs that delay imposes on ...litigants."  Still, the majority concluded that until Congress decides to amend the law, it's clear language requiring delegation "to no fewer than three members" must prevail. 

Justice Kennedy filed a dissent on behalf of four Justices, arguing:

...the objectives of the statute,which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court.

Additional commentary:

• "Supreme Court rules two-member NLRB lacked authority to issue decisions" -- NLRB Press Release
• New Process Steel v. National Labor Relations Board -- SCOTUS Wiki
• "Supreme Court Rules on NLRB, Texting and Judicial Takings" -- The BLT
• "Supreme Court Rules NLRB Needs 3-Member Quorum for Rulings" -- ShopFloor.org
• "Supreme Court Ruling Wipes Out 600 NLRB Decisions" -- FireDogLake
• "NLRB Loses Two-Member Board Case (New Process Steel)" -- Workplace Prof Blog

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We noted in May that the UAW had begun the process of challenging a 2004 decision by the National Labor Relations Board related to teaching assistants at private universities. Today the NLRB issued a press release announcing that the Regional Director had dismissed the petition, which sets the stage for the UAW to request that the Board reverse Brown University, 342 NLRB 483 (2004) and remand the petition to the Region for an election. 

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