On December 16, 2012, the term of National Labor Relations Board Member Brian Hayes expired, leaving the five-member NLRB at three members: Chairman, Mark Pearce, and Members Sharon Block and Richard Griffin. Block and Griffin are recess appointees. Pearce is the only current member who has been confirmed by the Senate. Hayes is a Republican and all the current Board members are Democrats.
On October 16, 2012, the National Labor Relations Board announced that in the fiscal year just ended on September 30, 2012, it had issued 341 decisions in contested cases. Of that total, 277 were unfair labor practice cases and 64 were representation cases. It also stated that the median age of pending cases was reduced from 219 days to 108 days.
It was also noted that there was considerable turnover in board members during this past fiscal year: the recess appointment of Member Craig Becker expired on Jan. 3, 2012; three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn – were recess-appointed by the President and took office in early January, 2012; and Member Flynn resigned his position effective July 24, 2012. The Board currently has four of the five board member positions filled by Chairman Mark Pearce, and Members Hayes, Griffin and Block. Hayes’ term expires on December 16, 2012.
In its October 16 press release, the Board listed a number of cases of significance that were decided this past fiscal year:
“Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.
Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.
Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.
Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment.
Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.
A federal judge in Washington, D.C. has ruled in Chamber of Commerce of the United States, et al. v. National Labor Relations Board that the NLRB lacked a quorum when it approved new rules governing union representation elections and that therefore the rules are invalid. In his May 14, 2012 decision, U.S. District Judge James Boasberg found that NLRB Member Brian Hayes did not participate in the vote on the new rules, and that only Chairman Pearce and Member Becker actually were present for quorum purposes. Under the Supreme Court’s decision in New Process Steel, it is clear the NLRB cannot effectively act with only two members as a quorum. The Court pointed out that the NLRB could take up the rules again and consider their passage with a proper quorum. The decision may be viewed at:
On June 22, 2011, the National Labor Relations Board issued a notice of proposed rulemaking proposing various amendments of its rules governing the filing and processing of representation election petitions. On December 22, 2011, the NLRB issued a final rule amending its regulations which takes effect today. The final rule provided that any dissenting or concurring statements would be published separately in the Federal Register prior to the rule’s effective date.
Member Hayes’ dissent was just published in the Federal Register, along with a separate concurrence by Chairman Pearce responding to Hayes’ dissent.
In his dissent, Hayes points out that the new rule (1) eliminates the right to seek pre-election review of a regional director’s decision and direction of election; (2) alters the role of the hearing officer in deciding what evidence may be introduced in a pre-election hearing; (3) generally prohibits the filing of briefs after a pre-election hearing; (4) eliminates the automatic right to seek review at the Board in post-election disputes, a right previously included in stipulated election agreements; and (5) most importantly, eliminates the pre-election right to litigate all issues not deemed relevant to the question concerning representation, such as voter eligibility or unit placement of individuals who would constitute 20% or more of a bargaining unit.
Member Hayes points out that the new rule is the subject of pending litigation in the U.S. District Court for the District of Columbia brought by the U.S. Chamber of Commerce.
The full text of the concurrence and dissent can be found at:
As we reported in a blog article on December 6, 2011, NLRB Republican Member Brian Hayes was being investigated by the NLRB’s Inspector General over an allegation that he had been enticed to resign his position as a Member of the Board, which at the time would have reduced the number of board members to two, leaving the Board unable to issue decisions. Mr. Hayes had earlier threatened to resign in a letter to the Chairman of the Board over certain proposed regulations being considered by the Board’s other two members. Mr. Hayes decided later and announced that he was not resigning.
In an article by Kevin Bogardus posted on the website of The Hill on January 26, 2012, it was reported that the Inspector General had completed his investigation and concluded that Mr. Hayes had not been enticed to resign his post. “As a result of our investigative efforts, we found no evidence that enticements were made to Member Hayes to resign his position as a Board Member,” Dave Berry, the NLRB’s Inspector General wrote in a January 23 memo to Mr. Hayes and NLRB Chairman Mark Pearce. The Inspector General did note, however, that Mr. Hayes had sought employment with the law firm of Morgan, Lewis & Bockius. Nevertheless, Mr. Berry found no wrongdoing by Member Hayes. Apparently, Mr.Hayes had recused himself from any matters before the Board where the Morgan firm was involved. By December 22, 2011, according to the report, Member Hayes advised the Morgan firm that he was no longer interested in employment with them.
This may not be the end of the matter. The Hill also reported that U.S. Representative George Miller, a Democrat from California and the ranking member on the House Education and the Workforce Committee, wrote a letter on January 26, 2012, to U.S. Attorney General Eric Holder requesting that the Justice Department initiate its own investigate of Mr.Hayes’ resignation threat.
In a decision issued January 3, 2012, a two Member NLRB, with Member Hayes recusing himself, ruled in D.R. Horton, Inc., 357 NLRB No. 184 (2012), that an employer may not require employees covered by the National Labor Relations Act to sign arbitration agreements which prevent them from pursuing class or collective action claims in court or arbitration. Such agreements, according to Chairman Pearce and Member Becker, violate Section 7 of the Act. In reaching this decision, the Board rejected a 2006 NLRB General Counsel internal opinion to the contrary.
The agreement in question prohibited an arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees. Prior to its decision, the Board had sought amicus briefs on the issues raised by the case from interested parties and received more than a dozen.
The Board’s order requires D.R. Horton to rescind the agreement or revise it to make clear to employees that they are not waiving their right to pursue a class or collective action in all other possible forums including the courts and arbitration.
On December 20, 2011, the U.S. Chamber of Commerce filed a suit in the U.S. District Court for the District of Columbia challenging the NLRB’s amendments to its regulations governing union representation elections and seeking injunctive relief to stop the Board’s enforcement of the new rules.
The suit claims that the amendments violate the Administrative Procedure Act, the Regulatory Flexibility Act and the National Labor Relations Act, as well as the First and Fifth Amendments to the U.S. Constitution. The Chamber also alleges that:
“The Board rushed through the rulemaking process because it was committed to put the Rule in place before the end of Member Becker’s recess appointment, following which there would be no majority support among Board members in favor of the Resolution or the Final Rule and the Board itself would be reduced to two members, rendering it incapable of further action.”
As to many of its claims and bases for relief, the Chamber relies upon statements made by Republican Member of the Board, Brian Hayes, in his dissent to the proposed rule making.