Senate Committee Approves President’s Nominations to the NLRB

By Edwin S. Hopson

On May 22, 2013, the Senate Committee on Health, Education, Labor & Pensions voted to approve the nominations of Mark Pearce, Richard Griffin, Sharon Block, Harry Johnson, and Phillip Miscimarra to be Members of the National Labor Relations Board.  The committee vote for Johnson and Misimarra, both Republicans, was 22 to 0 in favor.  The vote for Pearce, the current Chairman of the Board, whose term expires in August, 2013, was 18 to 4 in favor.  The votes for Griffin and Block, both of whom are Democrats and currently serving as Board Members, were 13 to 9 in favor.  Several Republican Senators voiced opposition to Griffin and Block based on the fact that their recess appointments were held to be invalid by the D.C. Circuit Court of Appeals in the Noel Canning v. NLRB case, and they have continued to serve on the Board.

Senate Committee Approves Perez to be Secretary of Labor and Holds Hearing on NLRB Nominees

By Edwin S. Hopson

On May 16, 2013, the U.S. Senate Health, Education, Labor and Pensions Committee voted 12 to 10 along party lines in favor of Thomas Perez’ nomination to be Secretary of Labor. 

The committee also on that date held a hearing on the five nominations by President Obama to the National labor Relations Board.  A vote by the committee on the NLRB nominations is expected on May 22, 2013.  It can be anticipated that Republican senators will oppose the Perez nomination, and several of the nominations to the NLRB once the Democrat majority seeks to move for a vote by the entire Senate on these nominations.

Third Circuit Court of Appeals Invalidates Recess Appointment to the NLRB

By Edwin S. Hopson

On May 16, 2013, a panel of the U.S. Court of Appeals for the Third Circuit (in a 2 – 1 decision) in National Labor Relations Board v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936 (3^rd Cir. 2013), decided that the orders issued by the NLRB in this case could not be enforced because former NLRB Member Craig Becker’s recess appointment in March 2010 was invalid.  This is the second federal court of appeals to rule that a recess appointment to the NLRB by President Obama was invalid—the first being the D.C. Circuit Court of Appeals, in Noel Canning v. NLRB, as to which the NLRB has petitioned the U.S. Supreme for review.

House Passes Comp Time Law

 By Edwin S. Hopson

On May 8, 2013, the U.S. House of Representatives passed the Working Families Flexibility Act of 2013 (H.R. 1406), a law that would amend the Fair Labor Standards Act of 1938 to give employees the opportunity to accrue paid time off or “comp time” for working overtime hours in lieu of receiving overtime pay.

The bill provides as follows:

• Allows employers to offer employees a choice between cash wages and accruing comp time for overtime hours worked during a workweek.
• Protects employees by requiring the employer and the employee to complete a written agreement to use comp time, entered into knowingly and voluntarily by the employee. If the employee is represented by a labor organization, the agreement to take comp time must be negotiated as part of the union contract.
• Retains all existing employee protections in current law, including how overtime pay is calculated.
• Allows employees to accrue up to 160 hours of comp time each year.  An employer would be required to pay cash wages for any unused time at the end of the year. Workers would be free to cash out their accrued comp time whenever they choose to do so.
• Requires the nonpartisan Government Accountability Office to report to Congress on the extent private-sector employers and employees are using comp time, and the number of complaints filed with and enforcement actions taken by the U.S. Department of Labor.

 The measure is expected to face stiff opposition in the Senate.

Court Invalidates NLRB’s Notice Posting Rule

 By Edwin S. Hopson

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013), regarding the NLRB’s issuance of a regulation in August 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, post a NLRB notice to employees regarding employee rights under the NLRA. The regulation had been stayed pending resolution of the National Association of Manufacturers case.

The court of appeals held that the notice posting regulation was contrary to Sections 8(c) and 10(b) of the NLRA and therefore invalid in its entirety. 

While the court found that the NLRB had a lawful quorum at the time the rule was issued in 2011, it nevertheless stated (without deciding) that former NLRB Member Craig Becker, a recess appointee, was not validly appointed, citing its recent decision in Noel Canning v. NLRB.

The notice posting decision may be found at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/E16F1375FA672CCE85257B64004E8BB2/$file/12-5068-1434608.pdf