5th Circuit Poised to Hear Class-Waiver Appeal: Abigail Rubenstein of Law360 ($$) reports that the Fifth Circuit Court of Appeals will hear oral arguments on Tuesday in the appeal of the National Labor Relations Board’s decision in D.R. Horton, 357 NLRB No. 184 (3 Jan. 2012). In D.R. Horton, the Board controversially held that the company’s workers could not be compelled as a condition of employment to sign an arbitration agreement containing a class-action waiver. The ruling seemed to fly in the face of the Supreme Court’s ruling in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2011).
Furthermore, the court will also entertain whether the Board constituted a quorum when it made its ruling in 2010. Recently, the D.C. Circuit held that the Board had fallen below a quorum because President Obama’s purported intra-session recess appointments of Board members was an invalid exercise of executive power.
“It’s a big case that has gotten bigger because of this constitutional issue,” said Ronald Meisburg of Proskauer Rose LLP, a former NLRB general counsel and board member.
We here at @LRToday will be watching this decision closely because of the major implications it could have on the world of labor law. We will keep you posted as developments occur.
Board Approves of NYC Bus Drivers’ Strike: Deborah Young of the Staten Island Advance reports that the National Labor Relations Board on Friday dismissed a request for an injunction filed by the New York City School Bus Contractors’ Coalition that would have put a stop to the now several-weeks old New York City school bus drivers’ strike.
"The bus companies will continue to do everything we can to get the buses rolling so we can get New York City’s school children back to school safely," said Jeffrey Pollack, the chief labor attorney for the New York City School Bus Contractors Coalition, which filed the action. "We believe the NLRB’s decision is incorrect and plan an immediate appeal.
Union leaders, however, expressed hope that the Board’s ruling would incentivize the Coalition and the City to seek ways to end the strike. Now in its third week, the bus drivers’ strike has affected over 150,000 school children, with disabled students feeling the brunt of the impact. We will keep you posted as this situation develops further.
Republican Senators Urge Board Members to Resign: Political News has published a letter from Senator Orrin Hatch (R-Utah) and signed by 39 other Republican Senators insisting that National Labor Relations Board Members Sharon Block and Richard Griffin resign immediately from the Board.
In the letter, Senator Hatch makes reference to the D.C. Circuit’s recent ruling in Noel Canning, which held that President Obama’s intra-session recess appointments to the Board were unconstitutional. As such, Members Block and Griffin are not valid Board appointments and should “withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold.”
The Board will most likely appeal the Noel Canning decision, so this is certainly not the last we’ve heard regarding President Obama’s recess appointments. We will keep you posted as new issues develop.