Can you imagine an issue that Speaker of the House John Boehner and the President of the UFCW agree on? Well, we may have found it and you’d be surprised what it is - Obamacare!

There’s an interesting article today in The Hill reporting on how several unions – the United Food and Commercial Workers International Union, UNITE HERE, the Teamsters and the United Union of Roofers, Waterproofers and Allied Workers – are all now complaining about how the Affordable Care Act is being rolled out.

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The National Labor Relations Board (NLRB) has posted a summary of decisions for the week of May 6-10, 2013 on their website. The summary can be accessed by visiting the NLRB's website here or by clicking on the link below.

National Labor Relations Baord: Summary of Decisions - May 6-10, 2013.

A Barnes and Thornburg legal alert analyzing yesterday's New Vista Nursing Third Circuit case regarding recess appointments is now available on the firm's website. Our previous coverage of the case from yesterday can be found here.

One issue analyzed is the Third Circuit's distinction between the NLRB quorum requirement and the Board's ability to delegate authority to three members.The Third Circuit found that even if the Board as a whole has a valid quorum, if any member of a three-person Board panel that decides a case is not validly appointed, that is enough to invalidate the decision. This distinction is broader than the D.C. Circuit's in Noel Canning and potentially puts many more Board decisions in jeopardy. Read our full analysis in our alert available here.

Our complete coverage of the recess appointments issue is available here.

In another groundbreaking decision against the NLRB, the Third Circuit has followed the D.C. Circuit's reasoning in Noel Canning regarding presidential recess appointments and as a consequence, has found former Board member Craig Becker's recess appointment in March 2010 invalid.

In an opinion issued today in NLRB v. New Vista Nursing, the Third Circuit held that presidential recess appointments are only valid if they occur during the intersession break of the Senate, not during any break of significant time during a Senate session (as has been the commonly held interpretation of presidential administrations for the last several decades). The Court therefore found that NLRB member Becker's appointment in March 2010 was invalid because it did not occur during a recess of the Senate. Accordingly, any decisions made by a three-member Board with Member Becker participating (which as we previously noted go back to August 2011) are also invalid under the U.S. Supreme Court's decision in New Process Steel. 

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Back in March, AFL-CIO President Richard Trumka summarized his view of the state of union representation in America: “To be blunt, our basic system of workplace representation is failing to meet the needs of America’s workers by every critical measure.” Last week in a Washington Post Op-Ed, this view was echoed by columnist and long-time advocate of big labor’s policies Harold Meyerson. Meyerson identified an “existential problem” facing unions, which are continuing to see membership numbers decline. 

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The 6th Circuit in Bailey v. Callahan, decided Thursday, May 9, has vacated an injunction entered by the District Court and has upheld Michigan’s Public Act 53 which prohibits Michigan’s public schools from assisting in the collection of dues and service fees for unions. The Court summarized the Union’s First Amendment challenge to the statute in this way:

“Unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.” 

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Yesterday in its NAM v. NLRB decision which struck down the NLRB posting rule, the D.C. Circuit observed a further possible extension of its earlier Noel Canning decision, noting that under the reasoning of Noel Canning, Member Craig Becker’s recess appointment to the NLRB would also be considered invalid.  In the course of its opinion, the D.C. Circuit stated “To the extent that Noel Canning applies—we assume, without deciding, that it does—Becker’s appointment was constitutionally invalid.”

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On April 30, 2013, the NLRB for the first time in a decision addressed the D.C. Circuit’s controversial Noel Canning decision and held that it does not prevent the agency from continuing to act while the case is litigated.

In Bloomingdale’s Inc., 359 NLRB No. 113 (April 30, 2013), the employer filed a Motion to Dismiss arguing that based on the Noel Canning decision that President Obama’s recess appointments to the NLRB were invalid, all actions of the agency, including the issuance of unfair labor practice complaints, were invalid for a lack of quorum.

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The Court of Appeals for the D.C. Circuit today struck down one of the centerpieces of the Obama Administration’s Labor agenda when it invalidated the NLRB’s rule requiring employers to post an NLRB-drafted “Notification of Employee Rights under the National Labor Relations Act.”  Under that rule, employers failing to post the notice would be subject to an unfair labor practice charge. The D.C. Circuit today held that the NLRB departed from its “historic practice” and “negative attitude” toward promulgating rules for employers and in doing so violated the NLRA.

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Pro-employer interests received an energizing shot in the arm from a recent D.C. Circuit opinion. In Flagstaff Medical Center Inc. v. NLRB, the D.C. Circuit Court of Appeals was reviewing the NLRB's 2011 ruling that the company president's remarks that “I would not be negotiating with the union” or "”you won't be negotiating with me” constituted threats that unionization would be futile and were evidence of anti-union animus. The D.C. Circuit disagreed, stating that “[t]he record does not support this interpretive leap.”

The D.C. Circuit found that these statements were made in regard to the president's attendance at the meetings and not the company's willingness to negotiate. The full opinion can be found here.