Posted on December 23, 2011 by Seth Borden

NLRB Again Postpones Implementation of Notice-Posting Rule in Face of Legal Challenges

Days after oral argument was heard in the National Association of Manufacturers (NAM) suit to enjoin the rule, the National Labor Relations Board has agreed to postpone the effective date of its new rule requiring all employers to post notices advising employees of rights under the NLRA.  

The Board announced today that it has determined that:

postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  

The rule's effective date was previously postponed from November 14, 2011 to January 31, 2012.  Since that time, additional groups have filed suit seeking to invalidate the rule. 

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Posted on December 21, 2011 by Seth Borden

NLRB Announces Final Rule to Expedite Elections; Senator Announces Effort to Block Rule Via Congressional Resolution

The National Labor Relations Board announced today that it has adopted a final rule amending its election case procedures to shorten the time between the filing of a petition and the conduct of an election. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.

The Board asserts that under the new rule:

...regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

There have been various attempts by lawmakers to undo this rule, including John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) which passed by a vote of 235-188 late last month.  That bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. 

But it is not just the substance of the changes that opponents question.  Days before the NLRB held a unique "public" session to vote upon the proposed rule changes, Member Brian Hayes sent a highly critical letter to the House Committee on Education and the Workforce.  Member Hayes accused the Board majority of intentionally:

breach[ing] the Board’s internal operating rule and, for the first time in the history of this agency, not allow[ing] the requisite time for preparing or circulating a dissent. 

This afternoon, hours after the Board announcement of the final rule, Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, asserted that he would challenge the Board's actions:  

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law.  I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. 

The Congressional Review Act (CRA) allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation.  According to Senator Enzi's office, a resolution of disapproval introduced under the CRA cannot be filibustered and needs only a simple majority in the Senate to pass if acted upon during a 60-day window.

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Posted on December 19, 2011 by Seth Borden

Department of Interior at Odds With National Labor Relations Board Over NLRA Application to Indian Tribes

Earlier this month, Patrice Kunesh the Department of Interior's Deputy Solicitor for Indian Affairs sent a letter to National Labor Relations Board Acting General Counsel Lafe Solomon, urging the Board to exempt Indian tribes from coverage by the National Labor Relations Act.

Until 2004, the NLRB's position regarding jurisdiction over Indian tribes as employers was that tribes were exempt from the NLRA.  That year, however, the Board shifted course entirely, asserting jurisdiction over the San Manuel Indian Bingo and Casino -- a tribal casino owned and operated by the San Manuel Band of Serrano Mission Indians on tribal land in California.  The Court of Appeals for the D.C. Circuit affirmed. 

Deputy Solicitor Kunesh writes:

…I seek an opportunity to advance the Department’s position on the applicability of the NLRA to Indian tribes, articulated by the Tenth Circuit Court of Appeals, that Indian nations acting within their jurisdictions are exempt from the NLRA. See Dobbs v. Anthem Blue Cross and Blue Shield, 600 F.3d 1275, 1284-84 (10th Cir. 2010); NLRB v. Pueblo of San Juan, 276 F.3d 1186 (10th Cir. 2002). As stated by the Tenth Circuit: “[R]espect for Indian sovereignty means that federal regulatory schemes do not apply to tribal governments exercising their sovereign authority absent express congressional authorization. Dobbs, 600 F.3d at 1283.

Rather than advancing this position in a litigation context, I believe that there may be an opportunity to work together to address whether Congress intended the NLRA to apply to tribal government employers. It is undoubtedly within the NLRB’s power to consider whether its original interpretation of the government employer exemption, 29 U.S.C. §152(2), as implicitly exempting tribal governments acting within their territorial jurisdictions, correctly interpreted congressional intent, as Member Schaumber argued in his dissent in San Manuel.

This reaffirmation of Interior's view, and a request to resolve the issue with its fellow Executive agency outside of a "litigation context," comes as Rep. Kristi Noem's (R-SD) bill, "To clarify the rights of Indians and Indian tribes on Indian lands under the National Labor Relations Act," (H.R. 2335), sits in Committee.  Rep. Noem's bill, which has eighteen co-sponsors including Rep. Dan Boren (D-OK), would  clarify that the National Labor Relations Board does not have jurisdiction over tribally owned businesses on reservation land as a matter tribal sovereignty.  Over the summer, the U.S. District Court for the Western District of Oklahoma issued a preliminary injunction in The Chickasaw Nation v. National Labor Relations Board, Case No. CIV-11-506-W, enjoining the National Labor Relations Board from proceeding with an unfair labor practice hearing against the Chickasaw Nation, a federally-recognized Indian Tribe.

 

It would certainly seem that a larger consensus is gathering among administrative agencies, federal courts and at least some lawmakers with which the Board's current interpretation (San Manuel) is at odds.

 

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Posted on December 15, 2011 by Brennan W. Bolt

President Plans to Nominate Two Democrats to the NLRB

President Obama announced yesterday plans to nominate two Democrats to the National Labor Relations Board. The planned nominees are Sharon Block, deputy assistant secretary for congressional affairs at the Department of Labor, and Richard Griffin, who is currently general counsel for the International Union of Operating Engineers. According to news sources, both have backgrounds in Democratic policy making.

Currently, there are only three out of five members of the NLRB. However, at the end of the year, Craig Becker's recess appointment expires leaving the Board with just two members: Chairman Mark Pearce and Brian Hayes. With only two members, the Board will lack authority to issue any decisions or rules.

Once nominated, Ms. Block and Mr. Griffin will have to be confirmed by the Senate. However, Senator Lindsey Graham (R-SC) has vowed to block President Obama from making any further appointments to the Board. Moreover, the House Republicans have been taking steps in recent months to prevent the Senate from going into a full recess, thus precluding the President from making any recess appointments. Most expect the House Republicans to continue this practice.

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Posted on December 2, 2011 by Seth Borden

NLRB Approves Changes to Union Election Rules, 2 to 1

On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.

The approved changes will include:

a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”

b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs

c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election

d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election

e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board

f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.

 

At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes.  John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188.  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

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