In the wake of the 2011 Specialty Healthcare decision by the National Labor Relations Board (NLRB), the country has seen a proliferation of so-called “micro-units” instead of the traditional “wall-to-wall” bargaining units. The change in the test for determining the appropriate size of a bargaining unit has led to the creation of these smaller micro-units even when every other factor, especially common sense, points in the opposite direction. (continue reading…)
For reasons not entirely clear to legal experts, the NLRB opted to not appeal a Fifth Circuit ruling in D.R. Horton, Inc. v. NLRB reversing their stance that a company cannot require its employees to consent to mandatory arbitration and class action waivers. The Fifth Circuit is not alone; other federal and state courts have also disfavored the NLRB’s viewpoint. Despite this trend and although the NLRB allowed the deadline to pass without requesting certiorari, attorneys involved in the controversial issue expect the that the agency will not change its position.
When the case entered federal court, the NAM filed an amicus brief. on June 6, 2012 arguing that prohibiting mandatory arbitration and class action waivers upon employment will increase costs for companies and result in unnecessary litigation. Furthermore, the NAM challenged the NLRB’s authority to regulate individual contracts dealing with rights not covered by the National Labor Relations Act. The court agreed and determined that the NLRB’s decision went beyond its statutory authority.
As the landscape now stands, companies will likely prevail in federal court on the issue, but will still battle the NLRB at the agency level. It is possible that the NLRB refused to appeal the case to the high court because it feared an adverse ruling. If this clash between agency and federal court continues, the Supreme Court will likely have to review the issue. The NAM will continue to weigh in on this issue and take whatever steps appropriate to prohibit the NLRB from stepping outside its statutory authority.
Ryan Sims is a Law Clerk for the Manufacturing Center for Legal Action
Individual cases before the National Labor Relations Board (NLRB) rarely get noticed by anyone other than labor or employment lawyers, but that doesn’t mean they aren’t worth watching. These decisions have broad implications for all employers, not just the one involved directly in the case.
Recently, an NLRB administrative law judge (ALJ) issued a decision that, if allowed to stand, would have significant implications for manufacturers and their intellectual property. The judge concluded that Boeing’s prohibition of cameras—a policy that has been in place for 35 years—constitutes an unfair labor practice because Boeing has no credible business need to protect its manufacturing process. Of course, as technology has developed, the rule has captured additional devices, and today smartphones fall under the ban.
Boeing has good reason to be cautious about allowing unfettered photographic access to its shop floor. For one, its competitors and some foreign governments would love to get their hands on Boeing’s proprietary information. The ALJ would make that easy for corporate spies—just go to an employee’s Facebook page and study photos from inside Boeing. In addition, many of Boeing’s products are subject to strict export controls. Making photos of these products or processes public could violate federal law.
The NLRB’s decision puts Boeing in a tough spot, creating a problem where none existed. And, besides, NLRB lawyers shouldn’t be in the business of creating new rights for employees in the first place.
Because of the dangerous precedent this case could set for future disputes before the NLRB, the NAM filed a brief highlighting this overreach and the impact it would have on businesses, particularly manufacturers. For more information about the case, click here.
When the Senate confirmed nominees to the National Labor Relations Board (NLRB) late last month, it marked the first time that all five seats had been filled since 2003. It also marked a turning point in labor policy. Recently, decisions rested with an unbalanced configuration that almost never had a dissenting view. That did not seem right. After all, the NLRB is an extension of a government founded on the belief that tyranny of the majority is just as undemocratic as dictatorial rule.
Although the National Association of Manufacturers does not tend to agree with NLRB on a lot of its more recent opinions, we welcome a fully-staffed board ready to engage in the kind of robust debate of the issues that should take place before making decisions that impact our labor law system. Dissenting opinions are an important part of litigation. They often help to clarify a ruling, even when the overall outcome leaves something to be desired. A dissenting opinion could become the basis for why a law should change or why a previous ruling should be overturned.
Completing the NLRB roster brings the agency’s legitimacy back into play. Manufacturers are hopeful that the board’s members will avoid partisan politics as they carefully weigh all the options and opinions at hand. Our democracy depends on a healthy dose of dissent to properly function. So does our labor law system.
Amanda Wood is the director of employment policy for the National Association of Manufacturers.
It seems like each new week brings another setback for the National Labor Relations Board. This morning, the U.S. Court of Appeals for the Third Circuit issued a ruling invalidating President Obama’s recess appointments to the Board. The Third Circuit ruling was essentially the same as the conclusion reached by the Court of Appeals for the D.C. Circuit – the President’s recess appointment power was intended for times between sessions of Congress not simply short breaks taken during a session for lawmakers to return home to their states.
This week’s ruling follows on the heels of another defeat for the Board last week that invalidated its notice posting rule after nearly two years of legal wrangling. The U.S. Court of Appeals for the D.C. Circuit invalidated the notice posting rule as a result of a suit filed by the NAM in September of 2011.
Joe Trauger is vice president of human resources policy, National Association of Manufacturers.
Is it possible for an entire federal agency to be in denial? The National Labor Relations Board has been rebuked, rebuffed and reminded by the Courts that its powers are not limitless. Yet, the Board remains curiously silent about the ruling last week that served as a body-blow to an agency that just two years ago was sticking out its chest and poking its proverbial bully-finger at businesses.
The NLRB website still has a page dedicated to an out-of-date poster with no mention of the fact that it has been rejected by the Courts. It’s like returning to your parents’ home and finding they still haven’t torn down the New Kids on the Block poster in your sister’s room. It’s kind of cute, but also a little discomforting. It might be time for the Board to acknowledge its poster idea was ill-conceived and take it down once and for all.
Yesterday, the U.S. Court of Appeals for the DC Circuit announced its ruling in a case the NAM filed with regard to posting notices in the workplace. The legal questions raised by the Board issuing a rule proactively regulating virtually every employer in the country are unique in some ways and very simple in others.
During oral argument before the Court of Appeals, one judge asked the attorney representing the Board a basic question. What, if any, limits are there on the NLRB’s authority? The attorney quickly – and shockingly – responded that in the Board’s view there are no limits to their power. Yesterday, the Court issued a strong rebuke to that line of thinking and highlighted the shaky ground the NLRB is on with regard to its agenda.
In the four-page concurring opinion, Judges Henderson and Brown stated: “And the Congress, in enacting the NLRA, prescribed that the Board use reactive means to enforce its policies – namely, through an unfair labor practice proceeding initiated by a charging party or by resolving representations and election issues when so petitioned by a party.” (Emphasis in original) In concluding the concurring opinion, Judge Henderson wrote, “In sum, given the Act’s language and structure are manifestly remedial, I do not believe Congress intended to authorize a regulation so aggressively prophylactic as the posting rule.”
The NAM agrees, which is why the lawsuit was filed. The ruling and concurring opinion released yesterday were spot on – and now the Board has been put on the spot. Do they double-down and petition the Supreme Court or do they finally acknowledge there are limits to the power they wield?
This afternoon, the Administration petitioned the Supreme Court to take up the case regarding the recess appointments to the National Labor Relations Board (NLRB) in the Noel Canning case. On January 25 the U.S. Circuit Court of Appeals for the D.C. Circuit definitively decided these appointments, made on January 4, 2012, were unconstitutional, thus bringing the NLRB down to one member and lacking a quorum to issue case decisions or issue rules. Despite the strong and clear opinion by the D.C. Circuit, the NLRB continues to flaunt the Court’s ruling with two invalid recess appointees and only one member confirmed by the Senate. This situation is leaving those in the labor community to wonder if the cases being decided are valid and have to be followed.
It was expected the Administration would seek to have clarity and final say on this issue; however, it is curious that in a quick read of the petition, the Administration argues that the appointments are valid based on decades of precedent established by former Presidents, cites the British House of Commons Parliamentary practice from 1772, the Articles of Confederation from 1781 and the Constitutional Convention of 1787. It will now be up to the Supreme Court to settle this dispute once and for all.
Today, President Obama announced his nomination of Mark Pearce for Chairman of the National Labor Relations Board and two other individuals to join current recess appointee/nominees Richard Griffin and Sharon Block. What this means is every slot on the NLRB currently has someone nominated, but only one has actually been confirmed by the Senate – Chairman Pearce, whose term expires in a few months. The new nominees, both Republicans, are Harry I. Johnson III and Phillip A. Miscimarra.
Mr. Johnson is a partner with Arent Fox in Los Angeles, CA and is a graduate of Harvard Law. Mr. Miscimarra is a partner at the law firm of Morgan Lewis in Chicago and holds a J.D. and M.B.A. from the University of
Today, the NAM filed comments with the NLRB responding to the Board’s request to gather opinions on altering the way employees can challenge union dues’ expenditures. As you will recall, employees have every right to do according the U.S. Supreme Court decision in the Beck case. Last week’s blog about this case, Kent Hospital, referenced a “sneak attack” by the Board in making this change. Reason being, the NLRB rarely asks for public comments prior to issuing a final decision in a case, so one has to wonder, why would they now?
The NLRB is not shy to overturn decades of precedent, change policy, or issue new rules, so it is likely they are going through this exercise simply to check the box that they took the public’s views into consideration – even though it is likely the three members have already made up their minds to create a presumption that unions are spending dues appropriately and not for political purposes. Why would the union ever be wrong and why should an employee dare to question the union on its expenditures?
The fact of the matter is what the Board will be doing is making it more difficult, perhaps impossible, for employees to call a union into question. Through this change, the Board will assure a union’s First Amendment right is more important than an employee, who has differing political views. Our comments strongly oppose the Board’s proposal. Employers and employees would well-advised to prepare for more of these “sneak attacks.”