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NLRB Archives - Page 2 of 24 - Shopfloor

Ask an Expert: What’s the deal with the NLRB?

By | Labor Unions | No Comments

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.

More Bad News for NLRB

By | Labor Unions | No Comments

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.

NLRB Website ‘Hanging Tough’ with Poster Rule

By | Labor Unions | No Comments

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.

NLRB Authority Does Have Limits

By | Labor Unions | No Comments

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?

U.S. Supreme Court Next Stop for NLRB Recess Appointees

By | Labor Unions | No Comments

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.

NLRB Nominations Full

By | Labor Unions | No Comments

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
Pennsylvania.

NLRB Bolstering Unions at Expense of Worker’s Free Speech

By | Labor Unions | No Comments

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.”

NLRB Sneak Attack on First Amendment

By | Labor Unions | No Comments

The NLRB is up to its sneaky ways and they are hoping to slip another precedent shattering decision under the radar.  According to the U.S. Supreme Court in the Beck decision, employees can object to a portion of union dues’ expenditures if the dues are being used to fund political activity not related to collective bargaining or contract administration.  In a recent case, the United Nurses and Allied Professionals (Kent Hospital) and Jeanette Geary, case, however, the NLRB decided an employee, who objected to the union’s expenditures, did not deserve to have any verification showing proof how the union was spending its funds.

Even more alarming, however, is what the Board has planned next.  The NLRB proposes to go a step further to give the unions the upper hand by presuming the union is, indeed, spending all the dues correctly.  The effect would be the Board is telling employees they have to prove the union is spending money on lobbying and political activity with no means of independently verifying the union claims.

The NLRB asked for comments on this proposal and the NAM is responding forcefully by outlining how the Board’s new idea would unfairly and unnecessarily stack the deck against employees who have to pay dues, but disagree with the union politically.  Under the proposal any lobbying activity the union would engage in on Capitol Hill down to state and local seats of government would go unchecked. With an impossible standard to meet, employees’ rights under the Supreme Court would be muted.  And here I thought the NLRB was established to protect employees and employees’ rights—I guess that’s only true if you never disagree with the union.

NLRB in Damage Control Mode

By | General | No Comments

This afternoon, National Labor Relations Board Chairman, Mark Pearce, issued a press statement in response to three of his Board Members’ appointments being invalidated by the Appeals Court. In his statement, Chairman Pearce tries to make the assertion that all is well with the Board and they will continue to go about their business, because the Court is wrong and even if they’re right it only applies to one case. Nothing could be farther from the truth and he ought to know that.

The U.S. Court of Appeals for the DC Circuit ruled today that President Obama’s recess appointments of Sharon Block, Richard Griffin and Terry Flynn were invalid at their inception – as far as court opinions go that’s pretty clear and unambiguous language. If the appointments were never valid then the Board has been operating without a quorum, which would be in violation of Supreme Court decisions requiring at least three Board members in order to issue regulations or case decisions.

If the Board is then violating the precedent set by the Supreme Court, how is it that today’s ruling would only apply to the case in which the ruling was made?

The facts suggest Chairman Pearce may be keeping his eye on whatever prize it is he’s been keeping an eye on, but the Courts showed they are keeping an eye on whether the Board is acting within its power and authority. Soon, the DC Circuit will issue a ruling on a case the NAM filed against the NLRB on a regulation that was clearly asserting more authority than the Board was intended to have.

The last year of actions by the Board has just been thrown into limbo. It will be up to the Supreme Court to decide if the Appeals Court was right, but to suggest it only applies to one case is misleading at best. Acting as if the ruling changes nothing is, well, you know.

NLRB Composition Ruled Unconstitutional

By | Labor Unions | No Comments

The NLRB’s activist and aggressive actions in recent years have raised significant concerns, including challenges to the constitutionality of the Board’s composition. Today’s ruling gives strong confirmation to those concerns and is a significant rebuke of what has become an increasingly overreaching NLRB with an intent to ignore its statutory authority.

The NLRB, currently made up of only three members without a dissenting voice, has had two of those member’s appointments invalidated by the U.S. Court of Appeals for the D.C. Circuit. If this ruling stands, Chairman Mark Pearce will be the only properly seated member of the NLRB until August when his term expires. This ruling speaks volumes about the way the Board has been constituted and throws a significant roadblock in its rulemaking ability.

For manufacturers that have been forced to deal with increased burdensome regulations, this is an important moment—perhaps a sign that we may see an NLRB in the future that will exist to improve employer–employee relations in this country rather than tear them down.

The NAM will be reviewing the opinion thoroughly to determine what impact this significant development will have on any and all decisions made by the Board over the past year.