Wyatt Employment Law Report

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NLRB Issues Rule to Speed Up the Scheduling of NLRB Representation Elections

By Edwin S. Hopson

The National Labor Relations Board, by a vote of 3 to 2, has issued a final rule published in the Federal Register on December 15, 2014, amending the Board’s representation–case procedures to, among other things, reduce the time between the filing of a petition for representation election with the NLRB and the date of the NLRB election. The rule is to take effect on April 14, 2015.

The final rule was approved by Democrats Mark Gaston Pearce, Kent Y. Hirozawa and Nancy Schiffer, with Republicans Philip A. Miscimarra and Harry I. Johnson III dissenting.

The final rule:

■ Provides for electronic filing and transmission of election petitions and other documents;

■ Adopts best practices and uniform procedures across all NLRB regional offices;

■ Requires that additional contact information for employees voting in the election (personal telephone numbers and email addresses) be included on voter lists to be turned over to the union, to the extent that information is available to the employer; and

■ Consolidates all election-related appeals to the Board into a single appeals process post-election.

The bottom line is, unions will be able to obtain much faster scheduling of elections, substantially reducing the time between the filing of the petition and the election during which the employer can campaign.

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NLRB May Be Expanding Definition of Joint Employer

By Edwin S. Hopson

On May 13, 2014, the National Labor Relations Board (Members Hirozawa and Schiffer; Member Johnson, dissenting) announced that in Browning-Ferris Industries and Leadpoint Business Services, Case No. 32-RC-109684, a union representation election case, that it had granted review of the regional director’s decision in order to determine if the Board’s current joint employer standard should be modified. The current Board consists of three Democratic and two Republican Members. One can assume that the Democratic Members wish to loosen the standard so that union bargaining units can be expanded to include persons formerly considered independent contracts or employees of another employer.

The Board has invited the filing of briefs by not only the parties but also interested amici. The issues identified to be addressed are:

  1. Under the Board’s current joint-employer standard, as articulated in TLI, Inc., 271 NLRB 798 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985), and Laerco Transportation, 269 NLRB 324 (1984), is Leadpoint Business Services the sole employer of the petitioned-for employees?
  2. Should the Board adhere to its existing joint-employer standard or adopt a new standard? What considerations should influence the Board’s decision in this regard?
  3. If the Board adopts a new standard for determining joint-employer status, what should that standard be? If it involves the application of a multifactor test, what factors should be examined? What should be the basis or rationale for such a standard?

The briefs may be filed on or before June 26, 2014.

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Full Complement of Five Members Assume Office at the NLRB

By Edwin S. Hopson

On August 12, 2013, the National Labor Relations Board announced that, for the first time since August 21, 2003, it has a full complement of five Senate-confirmed Members.  The last of four new members, Harry Johnson, III, was sworn in on August 12, 2013. NLRB Chairman Mark Pearce was also confirmed last month to an additional five year term on the NLRB.

Chairman, Mark Pearce has served as a Member of the NLRB since March 2010. His new term ends August 27, 2018.  Pearce is a Democrat.

New Member Nancy Schiffer’s term ends December 16, 2014.  She is also a Democrat.

New Member Kent Hirozawa’s term ends August 27, 2016.  He is a Democrat.

New Member Harry I. Johnson, III’s term ends August 27, 2015.  He is a Republican.

New Member Philip A. Miscimarra’s term ends December 16, 2017.  He also is a Republican.

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NLRB Nominations Considered by the Senate HELP Committee

By Edwin S. Hopson

As part of the agreement regarding the Senate filibuster rules, on July 23, 2013, the Senate Health, Education, Labor and Pensions Committee held about a two hour hearing on the President’s recent nominations of Kent Yoshiho Hirozawa and Nancy Jean Schiffer to be Members of the National Labor Relations Board.  Both faced stiff questioning from Republican Senators on the Committee.  On July 24, 2013, the Committee is scheduled to vote on the nominations, to be followed by a vote by the full Senate later in the week on the nominations of Hirozawa, Schiffer and current NLRB Chairman, Mark Pearce.  It is not clear whether the full Senate will also vote on the confirmation of Republicans Harry Johnson and Philip Miscamarra, whose nominations were earlier favorably voted out of committee.

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NLRB Nominees in the Middle of Senate Dispute Over Proposed Changes to Filibuster Rules

By Edwin S. Hopson

On July 11, 2013, Senate Majority Leader Harry Reid (D-NV) filed cloture on seven nominations including Richard Griffin, Sharon Block and Mark Pearce, all Democrats, to be Members of the National Labor Relations Board.  His motion also included Thomas Perez to be Secretary of Labor.  Republican Minority Leader Mitch McConnell (R-KY) then asked consent for the Senate to vote on Pearce, and NLRB nominees Harry Johnson and Philip Miscimarra, both of whom are Republican (the Republican Senators’ opposition to Members Griffin and Block centers on the fact that they were recess appointed at a time when Republicans contend the Senate was in session).  Reid objected to McConnell’s request setting up a debate over changing the filibuster rules in the Senate, sometimes called the “nuclear option.”

Reid publicly stated that he wants to amend the filibuster rule to exclude the President’s nominations to positions in Executive Departments and Agencies.  Reid contends that it takes only 51 Senators to pass such an amendment to the Senate’s rules.

McConnell and other Republican Senators have come out in strong opposition, indicating that if that takes place, the Senate will evolve into a simple majority institution, like the House of Representatives.

The final outcome may not be known until late on July 15 or sometime the next day.

In the meantime, the NLRB and the two recess appointees, Members Griffin and Block, have come to be in the center of what may turn out to be a major crisis in the Senate.

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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.

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President Obama Announces Three Nominations To Be Members of the NLRB

By Edwin S. Hopson

On April 9, 2013, President Obama announced his intent to nominate three additional persons to serve as Members of the National Labor Relations Board. If confirmed, this would bring the number of Board Members to five, including two recess appointments.

The three persons to be nominnated are: Current Board Chairman Mark GastonPearce, Harry I. Johnson, III, and Philip A. Miscimarra.

Pearce has served as NLRB Chairman since August 2011, and has served as a Member of the Board since March 2010. His current term expires in August, 2013. He is currently the only Member who has been confirmed by the Senate.

Harry I. Johnson, III is a partner with the law firm of Arent Fox LLP, a position he has held since 2010.  He is based in Los Angeles, California. Previously, Johnson worked at the Jones Day law firm as partner from 2006 to 2010, and as an associate from 1994 to 2005. Johnson received a B. A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School. He has regularly represented employers in labor and employment matters.

Philip A. Miscimarra is partner with the law firm of Morgan Lewis & Bockius LLP, a position he has held since 2005.  He is based in Chicago, Illinois. Also, since 1997, Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton School of Business. Miscimarra also practiced law at Seyfarth Shaw LLP from 1987 to 2005.  Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School. He has represented management in labor and employment matters.

Nominations for the five-member Board were previously submitted by the President and are still pending for recess-appointees Richard F. Griffin, Jr. and Sharon Block.  The recess appointment are under attack in many cases now pending in the federal courts.  In one of those cases, Noel Canning v. NLRB, the D.C. Circuit Court of Appeals ruled the appointments were invalid.  The NLRB is seeking review of that decision by the U.S. Supreme Court.