NLRB Wraps Up a Busy Year with More Commotion

While work had slowed down for many during the holiday season, those following the National Labor Relations Board (NLRB) have seen a flurry of activity. On January 4, 2012, President Obama announced his intent to make three new controversial recess appointments to the NLRB. In addition, the Board postponed its new notice posting rule and adopted a final rule amending its election (“R-Case”) procedures. A summary of each of these key developments follows.

Controversial Recess Appointments to NLRB

In a challenge to Congressional confirmation authority, President Obama announced on January 4, 2012 during the “intersession” period between the first and second sessions of Congress his intent to make the recess appointments of Democrats Richard Griffin and Sharon Block and Republican Terence Flynn as Board Members. The three recess appointees will join confirmed Chairman Mark Pearce (D) and Brian Hayes (R).

To avoid recess appointments of top officials without Senate confirmation, Republicans have attempted to block the maneuver by refusing to recess and holding “pro forma” sessions over the holidays. The recess appointments will last until the adjournment of the next session of Congress, after the 2012 elections.

Griffin is the general counsel of the International Union of Operating Engineers. Block, formerly on the staff of Senator Edward Kennedy (D-MA), is the Deputy Assistant Secretary of Labor for Congressional Affairs under Labor Secretary Hilda Solis. Flynn was formerly Chief Counsel to NLRB Chairman Peter Schaumber and currently is on the Board staff.

The most recent recess appointments will continue the controversy begun by the recess appointment of NLRB Member Craig Becker, which ended with the adjournment of the last Congress. Before nominating the current recess appointees, President Obama recently withdrew his nomination of Becker for another term. Becker formerly served as associate general counsel to the AFL-CIO and the Service Employees International Union (SEIU). His confirmation was denied following a contentious hearing before the Senate Health, Education, Labor and Pensions Committee in which his controversial writings in support of pro-union labor law reforms were fully exposed. Becker wrote that many of those reforms could be achieved by the Board itself, without involving Congress. During his tenure on the Board, Becker helped institute several of those reforms through decisions and rulemaking.

On December 19, 2011, all 47 Republican Senators spearheaded by Senator Orrin Hatch wrote to President Obama warning against a repeat of the Becker controversial tenure on the NLRB through future intersession recess appointments of unconfirmed Members to the NLRB. According to the Senators, doing so would “set a dangerous precedent that would most certainly be exploited in future cases to further marginalize the Senate’s role in confirming nominees” and that such a maneuver “could needlessly provoke a constitutional conflict between the Senate and the White House.”

According to Harold P. Coxson, Jr., a shareholder in Ogletree Deakins’ Washington, D.C. office: “President Obama’s intersession recess appointments of three Members to the NLRB only exacerbate the already controversial political actions that have engulfed this once proud agency. The appointments are likely to continue the pro-union legacy left by former Member Becker, whose recess term just ended, and almost certainly will trigger another battle with Congress, which will challenge the appointments, and the Board itself, in an election year.”

Postponement of Effective Date of Posting Rule to April 30, 2012

On December 23, 2011, the NLRB announced that the effective date of its new notice posting rule has been postponed “at the request of the federal court in Washington, D.C. hearing a legal challenge regarding the rule.” As a result, the new implementation date for the rule is April 30, 2012. The NLRB 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.” For more information, visit the NLRB’s website.

Issuance of Final R-Case (“Quickie Election”) Rule Effective April 30, 2012

The Board also adopted a final rule amending its election case procedures, which was published in the Federal Register on December 22, 2011 and which is scheduled to take effect on April 30, 2012. Under the new rule, the regional hearings used to resolve issues on which parties cannot agree will be limited expressly to issues relevant to the question of whether an election should be conducted. Also, the hearing officer will have the authority to limit testimony to relevant issues and to decide whether or not to accept post-hearing briefs.

In addition, all appeals of regional director decisions to the Board, under the new rule, will be consolidated into a single post-election request for review. The new rule also makes all Board review of regional directors’ decisions discretionary.

Chairman Pearce and former Member Becker voted in favor of the rule while Member Hayes dissented. Chairman Pearce commented that, ”This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation.” A description of the amendments can be found here.

Ogletree Deakins Hosts Informative Webinar

Harold P. Coxson, Jr., a shareholder in the firm’s Washington, D.C. office, and Wade Fricke, a shareholder in the firm’s Cleveland office, will discuss these and other key developments in more detail in our upcoming webinar, “An NLRB Overview: How Has the Law and Practice Changed and What We Can Expect in 2012.” The webinar will be held on January 17. To register, please click here.