Wyatt Employment Law Report

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Chamber of Commerce Files Suit Challenging the NLRB’s New Rules on Union Elections

By Edwin S. Hopson

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.

The following is a link to the lawsuit: 


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NLRB’s Inspector General May Have Opened an Investigation as to Whether Member Hayes Received an Offer Tied to a Resignation

By Edwin S. Hopson

On December 5, 2011, Holly Rosenkrantz of www.Bloomberg.com reported that the Inspector General of the National Labor Relations Board may have opened an investigation into whether Republican Member, Brian Hayes, received offers or enticements to resign his position on the five-member Board which would cripple the agency by reducing it to only two Members that would have no authority to issue decisions. 

There had been speculation that Hayes might resign in order to defeat an attempt by the two Democratic Members, Chairman Mark Pearce and Member Craig Becker, to implement a rule speeding up the union representation election process.  At the Board’s November 30 hearing on that proposed rule, Hayes indicated he was not going to resign.  At the same time, Hayes voted against the proposed rule.

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NLRB Republican Member Hayes Threatens Resignation Over Proposed Election Rule

By Edwin S. Hopson

In an article by Holly Rosenkrantz on the Bloomberg Businessweek website dated November 23, 2011, it reported that National Labor Relations Board Member Brian Hayes, the only Republican on the Board, is threatening to resign rather than allow a vote now scheduled for November 30, 2011, on a controversial new rule aimed at speeding up union representation elections. 

According to the article, NLRB Chairman Mark Pearce is quoted in a November 22 letter to Hayes as stating, “[y]ou indicated that, if the board proceeded with consideration of the matter, you would consider resigning your position.”

There are currently only three members on the five-member NLRB, and under last year’s Supreme Court decision in New Process Steel v. NLRB, if the Board is reduced to fewer than three members, it cannot continue to issue decisions. See posts below dated November 21 and 18.

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NLRB Delegates Certain Powers in Anticipation That the Board Could Be Down to Two Members Soon

By Edwin S. Hopson

Facing the prospect that the five-member National Labor Relations Board could be down to two Members on January 1, 2012, with the expiration of Member Becker’s recess appointment on December 31, 2011, on November 9, 2011, the Board announced that it was delegating to the Board’s General Counsel “full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization; and to institute and conduct appeals to the Supreme Court by writ of error or on petition for certiorari.”  

After the Supreme Court’s decision in the New Process Steel case last year, it is settled law that the Board cannot delegate its decision making authority in unfair labor practice and representation cases to a Board Member panel of less than three Members.  Thus, there was no mention of any such delegation in the Board’s announcement.

Whether any of the delegations mentioned in the Board’s order will be challenged as happened in New Process Steel, will remain to be seen.

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Republican Senators Block GPO Nominee Over Senate’s Failure to Confirm NLRB Nominee

By Edwin S. Hopson

In an article by Josiah Ryan posted on www.thehill.com on October 19, 2011, it was reported that Senators Orrin Hatch (R) and Johnny Isakson (R) have prevented confirmation of William J. Boarman, the President’s nominee for head of the U.S. Government Printing Office, because the Democratically-controlled Senate has not scheduled a vote on the nomination of Terence Flynn, a Republican, to be a Member of the National Labor Relations Board. Mr.Flynn was nominated by President Obama on January 5, 2011, but to-date the Senate Health, Education, Labor and Pensions Committee has not approved the nomination, the first step in the Senate’s process.

Currently, there are three Members on the five-member Board:  Chairman Mark Pearce (D), Member Craig Becker (D) and Member Brian Hayes (R).  It appears that on December 31, 2011, the recess appointment of Member Becker will expire.  Should Mr.Flynn be confirmed by the Senate, then after December 31, 2011, the Republican Members would be in the majority.  If Mr. Flynn (or another nominee) is not confirmed this year, then the NLRB would likely be reduced to just two Members and be unable after December 31, 2011, to issue decisions or take other actions under the recent Supreme Court decision in New Process Steel v. NLRB, 30 S. Ct. 635 (2010).

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U.S. House Seeks to Block President Obama’s Ability to Recess Appoint Officials

By Edwin S. Hopson

In July, 2011, Congressman Jeff Landry, a Republican from Louisiana, announced that he was part of an effort in the U.S. House of Representatives intent on keeping the House of Representatives in session continuously in order to prevent the U.S. Senate from going into recess without the House’s consent.  The purpose is to prevent President Obama from issuing recess appointments.  The last recess appointment, according to Representative Landry, was Craig Becker to the National Labor Relation Board.  In a July 1, 2011, press release, Landry stated:

“This morning – under the instruction of Speaker Boehner, Leader Cantor, and Whip McCarthy – I presided over a pro forma session in the United States House of Representatives, preventing Congress from going into recess and blocking President Obama from issuing recess appointments. * * *  Under Article 1, Section 5 of the Constitution, the House of Representatives can prevent the Senate from recessing by withholding its consent.  Simply put:  we do so by voting down, or not considering, a Senate adjournment resolution.  And when we do so, we block the Administration’s ability to make recess appointments.”

Congressman Landry, in his press release, stated that he is leading a coalition of 77 freshmen Congressmen requesting that the House Republican leadership take measures to prevent any recess appointment by President Obama for the remainder of the 112th Congress.

The impact of this action could be a cessation of the National Labor Relations Board’s ability to issue decisions after December 31, 2011, when Member Becker’s recess appointment expires.  At that time it will be down to two members.  Under the U.S. Supreme Court’s decision in New Process Steel v. National Labor Relations Board, 130 S. Ct. 2635 (2010), the NLRB lacks the power under the National Labor Relations Act to issue decisions once the five member board gets down to less than three members.

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New Complication to Resolving Two-Member NLRB Decisions Found Defective by the Supreme Court in New Process Steel v. NLRB

By Edwin S. Hopson

After the June 17, 2010, U.S. Supreme Court decision in New Process Steel v. NLRB in which the court invalidated National Labor Relations Board decisions issued while there were only two Board Members serving during the period January 1, 2008 to April 5, 2010, the NLRB announced it would begin reviewing about 100 two-Member Board cases in order to correct the defect found by the court.  During that two Board Member “era” the two Members were Wilma Liebman and Peter Schaumber.  It was thought that it would be a simple matter to have another one of the new Members recently appointed by President Obama to review each case record and then either join in Liebman and Schaumber’s decision or file a dissent in order to correct the defect.

However, the various reviewing federal courts of appeal have not returned all the cases to the Board.  Many remain to be remanded.  See:


On Friday, August 27, 2010, the term of Peter Schaumber, a Republican appointee member of the National Labor Relations Board, expires and the NLRB goes from five members down to four:  three Democrats and one Republican.  More significantly, it will now take TWO of the new Members to review each remaining case and either join Liebman’s decision or file a dissent.

The “new” panel could even reverse the prior decision since only Liebman remains on the Board from the original two member Board after August 27, 2010.

This result could add further delay to resolving the cases affected by the New Process Steel v. NLRB decision.