National Labor Relations Board (NLRB)

The Senate took a step closer to confirming five nominees to the NLRB this week when the Health, Education, Labor, and Pensions Committee (HELP) Committee voted to recommend that the full Senate confirm the nominations of Democrats (and current Board members) Mark Gaston Pearce, Richard F. Griffin, and Sharon Block and Republicans Harry I. Johnson and Philip A. Miscimarra. Two of the nominees, Richard Griffin and Sharon Block, were opposed by Republican members of the Committee because their current recess appointments to the NLRB have been invalidated by the D.C. Circuit’s Noel Canning decision.

The Obama Administration has pushed to get the bipartisan slate of nominees confirmed in an attempt to end the continuing effect of Noel Canning (which was bolstered by the recent New Vista Nursing decision) which continues to put in jeopardy all decisions made by the Board with the participation of the disputed recess appointees. It is unclear when the Senate would vote on the current nominees.

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

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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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.  

The National Labor Relations Board (NLRB) has updated their website with a summary of decisions for the week of April 22-26, 2013. The summary of NLRB decisions can be accessed by visiting the NLRB's website here, or by clicking on the link below.

National Labor Relations Board: Summary of Decisions - April 22-26, 2013

The Solicitor General of the United States, Donald B. Verrilli, has filed a Writ of Certiorari on behalf of the National Labor Relations Board (the NLRB), asking the Supreme Court to review the decision by the D.C. Circuit, which we discussed here. In the Writ of Certiorari, Verrilli asks the Court to overturn the D.C. Circuits decision, which found President Obama’s recess appointment to the NLRB unconstitutional, on the grounds that…

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