Wyatt Employment Law Report


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Court Rejects NLRB’s D.H. Horton Decision Invalidating Limits on Class Arbitration

By Edwin S. Hopson

The U.S. Court of Appeals for the Fifth Circuit in a split decison in D.H. Horton v. NLRB, No. 12-60031, decided December 3, 2013, rejected the NLRB’s ruling that an agreement between employees and Horton requiring arbitration and prohibiting class or collective actions in arbitration was a violation of the National labor Relations Act.  That agreement also required that all employment related disputes be resolved individually through arbitration.  The Board panel of Pearce and Becker (Hayes had recused himself) had concluded that prohibiting employees from pursuing class or collective action claims in arbitration infringed on substantive rights under Section 7 of the Act. It also held that the agreement discouraged employees from filing charges with the Board.

The court in rejecting the Board’s position on class or collective actions focused on the Federal Arbitration Act which favors arbitration.  After a detailed analysis of the NLRB’s arguments as to why the NLRA should govern, rather than the FAA, the court concluded that the Board’s arguments lacked merit.  However, the court did enforce the Board’s order pertaining to discouragement of employees from filing charges with the Board.

The court also rejected challenges to the underlying Board decision based on the invalidity of Member Becker’s recess appointment and the timing of the expiration of his recess appointment.

The full text of the decision can be found at:

http://www.ca5.uscourts.gov/opinions/pub/12/12-60031-CV0.pdf


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Richard Griffin’s Nomination To Be NLRB General Counsel Will Be Considered by HELP Committee

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee will hold an executive session at which it will discuss the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It will also take up the nominations of Chai Feldblum to serve as a Commissioner of the Equal Employment Opportunity Commission and Scott Dahl to be Inspector General of the Department of Labor.

The nomination of Griffin to be NLRB General Counsel may be controversial.  Griffin was one of the President’s recess appointments to the NLRB in January 2012, which were held invalid by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB, now pending before the U.S. Supreme Court.  A number of Republican Senators opposed Griffin’s nomination to be a confirmed NLRB Member.  As part of a deal to avoid the “nuclear option” regarding the fillibuster, Griffin’s nomination to be a Board Member was withdrawn by the President in July 2013.  It is unclear whether Griffin’s later nomination to be General Counsel was part of the July 2013 deal.


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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 (4th 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.


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Federal Judge Dismisses NLRB Court Case on Grounds of Lack of Quorum and Improper Appointment of Acting GC Solomon

By Edwin S. Hopson

On August 13, 2013, U.S. District Judge Benjamin Settle of the Western District of Washington, issued an opinion and order in Hooks v. Kitsap Tenant Support Services, Civil No. C13-5470 BHS, 2013 WL 4094344, dismissing an action initiated by the NLRB against the company brought under Section 10(j) of the National Labor Relations Act.  The bases on which Judge Settle issued his decision was (a) that the NLRB did not have a quorum of its members when the case was filed and (b) that Acting General Counsel Lafe Solomon’s appointment as acting general counsel was an improper appointment.  Solomon had authorized the court filing.

As to the lack of quorum issue, Judge Settle relied upon N.L.R.B. v. Enterprise Leasing Co. Southeast, LLC, ––– F.3d ––––, 2013 WL 3722388 (4th Cir.2013), and N.L.R.B. v. New Vista Nursing and Rehabilitation, 719 F.3d 203 (3rd Cir.2013).

The Board’s argument that Solomon had properly authorized the case to be filed was rejected based upon the court’s analysis of the Federal Vacancies Reform Act, which permits appointment of a person as an acting official if that person has in the last year served as a “personal assistant” to the departing officer.  The court found that Solomon’s appointment did not fit within the scheme of the Vacancies Reform Act and concluded his appointment was invalid.

Since Solomon was appointed Acting General Counsel on June 21, 2010, he has made scores if not hundreds of decisions which could now be called into question based upon this decision.

 


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NLRB Nominees Hirozawa and Schiffer Are Approved By the Senate HELP Committee

By Edwin S. Hopson

On July 24, 2013, the Senate Health, Education, Labor and Pensions Committee held an executive session to discuss and vote on the President’s recent nominations of Democrats Kent Yoshiho Hirozawa and NancyJeanSchiffer to be Members of the National Labor Relations Board.  Hirozawa is currently Chief Counsel to NLRB Chairman Pearce.  Schiffer was most recently Associate General Counsel of the AFL-CIO.

Ranking Member Alexander (R-TN) voiced objections to both nominees, opining that he doubted their impartiality.  He also noted that some outstanding written questions to the two nominees remained to be answered.   On motion of Committee Chairman Harkin (D-Iowa) to report the two nominations favorably out of committee, both nominations were approved by a vote of 13 to 9. 

Harkin also agreed that the record should remain open for the consideration of answers to the outstanding questions, and stated that he expected a vote on the nominations by the full Senate during the week of July 29.


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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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A Second Court of Appeals Invalidates NLRB’s Notice Posting Rule

By Edwin S., Hopson

On June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit in South Carolina Chamber of Commerce v. NLRB,  No. 12-1757 (4th Cir. 2013) became the second federal Court of Appeals to reject the NLRB’s notice posting rule.  On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit had also invalidated the NLRB’s notice posting rule in National Association of Manufacturers et al. v. National Labor Relations Board, et al., Civil No. 12-5068, 12-5138 (D.C. Cir. 2013).

The Fourth Circuit Court of Appeals stated, in part:

“We agree with the district court that the rulemaking function provided for in the NLRA, by its express terms, only empowers the Board to carry out its statutorily defined reactive roles in addressing unfair labor practice charges and conducting representation elections upon request. Indeed, there is no function or responsibility of the Board not predicated upon the filing of an unfair labor practice charge or a representation petition. We further note that Congress, despite having enacted and amended the NLRA at the same time it was enabling sister agencies to promulgate notice requirements, never granted the Board the statutory authority to do so. We therefore hold that the Board exceeded its authority in promulgating the challenged rule, and affirm.”