NLRB’s Notice-Posting Rule Finally Rejected By Two Courts of Appeals

By Edwin S. Hopson

Previously, the U.S. Court of Appeals for the D.C. Circuit in National Association of Manufacturers et al. v. National Labor Relations Board, et al., __ F.3d __, Civil Nos. 12-5068, 12-5138 (D.C. Cir. 2013), had invalidated the NLRB’s regulation issued in 2011 requiring all employers subject to the National Labor Relations Act (NLRA), estimated at some 6 million businesses, to post an NLRB notice to employees regarding employee rights under the NLRA.  On September 4, 2013, that court denied a petition by the NLRB for rehearing in the case.

In addition, the Fourth Circuit Court of Appeals in Chamber of Commerce v. NLRB, __ F.3d __,  Civil No. 12-1757 (4^th Cir. 2013), had ruled against the NLRB on the challenge to its notice-posting rule, and, on August 13, 2013, refused to rehear its decision in that case.

The only option left, should the NLRB wish to revive its notice posting rule, is to appeal these cases to the U.S. Supreme Court.

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

 

NLRB Seeks Review of the Recess Appointments Case in the U.S. Supreme Court

By Edwin S. Hopson

 On April 25, 2013, the government filed its petition for certiorari in the U.S. Supreme Court in NLRB v. Noel Canning, seeking review of the D.C. Circuit Court of Appeals’ decision invalidating President Obama’s January 2012 recess appointments to the Board.  In its 31 page brief, the Justice Department and NLRB lawyers presented two questions for review:

 “1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.

 2. Whether the President’s recess appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

 Should the Supreme Court agree to take the case, it would then be briefed and heard, in the ordinary course, during the next term of the Court and a decision would not likely come until some time next year.

 A copy of the petition can be found at:

 http://www.nlrb.gov/sites/default/files/documents/5142/nlrb_v_noel_canning_pet.pdf

NLRB Decides to Appeal the Recess Appointment Case to the Supreme Court

By Edwin S. Hopson

On March 12, 2013, the National Labor Relations Board announced that it had decided not to seek en banc rehearing in Noel Canning v. NLRB, a case in which the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments of three members to the Board were invalid.  Instead, the NLRB announced that it intends to file a petition for certiorari with the U. S. Supreme Court for review of the Noel Canning decision.  The deadline for the petition is April 25, 2013.

Union Official Calls on President Obama to Fix the Recess Appointment Problems at the NLRB

By Edwin S. Hopson

In late February, the AFL-CIO Executive Council called on Senate Democrats to empower the National Labor Relations Board or else.  “Now we demand that the president name all five people to fill those NLRB positions and that the Senate vote promptly,” according to Communications Workers of America union (CWA) President Larry Cohen, a member of the council in a press release found on the CWA website.  Cohen went on to say:  “We expect the Democrats to use every option, including the talking filibuster or rules changes to prevent the Republicans from blocking this. If they don’t, they can expect us to go after them like we never have before — in the nation’s capital and in their districts — wherever they go.”

According to the CWA, “as it stands, the NLRB is toothless,” referring to the US Court of Appeals for the District of Columbia Circuit decision in Noel Canning v. NLRB issued in January 2013, which invalidated President Obama’s three recess appointments to the NLRB.  Again, according to the CWA, “[i]n knocking down three of the board’s five members, the Noel Canning ruling completely vaporized the NLRB’s ability to enforce US labor law.”

NLRB Members Block and Griffin Are Re-Nominated by President Obama

By Edwin S. Hopson

Recently, the President re-nominated Sharon Block and Richard Griffin, both Democrats, to be Members of the National Labor Relations Board.  Last month, the U.S. Court of Appeals for the D.C. Circuit ruled in Noel Canning v. NLRB that their recess appointments to the NLRB made in early January 2012, were not valid.  The five-member board is chaired by Mark Pearce, whose term will expire August 27, 2013. The two Republican seats are currently vacant.  A number of Republican Senators have called upon Block and Griffin to resign in light of the D.C. Circuit decision.

Court of Appeals Rules Recess Appointments to the NLRB Were Invalid

By Edwin S. Hopson

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. National Labor Relations Board, et al., No. 12-1115, holding that the order issued by the NLRB in the case was invalid in that the NLRB lacked a quorum of properly appointed members.  On January 4, 2012, President Obama had purported to recess-appoint new members to the five-member board so as to permit the NLRB to have a quorum and continue to operate.  At the time, Republican members of the Senate objected, contending that the Senate was not in recess.  The NLRB’s decision in Noel Canning was issued after the January 4, 2012 recess appointments.

The D.C. circuit court, in an opinion by Chief Judge Sentelle, stated, in part:

“In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.”

The effect of this decision will be wide-spread.  Every Respondent against whom the NLRB issues an unfavorable decision has the right to appeal it to the D.C. Circuit (as well as the circuit court in which the Respondent does business).  Therefore the validity of virtually all the NLRB’s decisions going forward are placed in doubt as to their validity.

The fastest and best solution would be for the Democrats and Republicans in the Senate to put together a consensus package of nominees to be quickly confirmed and put in place at the NLRB.  As it stands, there is only one member (out of 5 slots) filled by a properly confirmed board member, Chairman Pearce.