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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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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New NLRB Members Confirmed by the Senate

By Edwin S. Hopson

On July 30, 2013, the Senate voted to confirm the President’s recent nominations of Democrats Kent Hirozawa and Nancy Schiffer 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.  The Senate also confirmed the reappointment of Chairman Mark Pearce, also a Democrat.

The vote for confirmation as to Hirozawa and Schiffer was 54 to 44.  Pearce was confirmed by a vote of 59 to 38.

The nominations of Republicans Harry Johnson and Phillip Miscimarra to the NLRB were confirmed by “voice vote.”

Thus, for the first time in about 10 years, there is a five member Board in place as confirmed by the Senate.

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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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Senate Committee to Hold a Hearing on NLRB Nominees

By Edwin S. Hopson

On May 16, 2013, the full U.S. Senate Committee on Health, Education, Labor & Pensions will conduct a hearing on the pending nominations to be Members on the National Labor Relations Board.  Currently, there are five nominations pending for the five-member board. They are for:

●Curent Chairman Mark Pearce, for another term (his current term expires in August, 2013);

●Current Member, Richard Griffin, who is serving a recess appointment;

●Current Member, Sharon Block, who is also serving a recess appointment;

●Harry Johnson, a recent nominee who is a Republican; and

●Phillip Miscimarra, a recent nominee who is also a Republican. 

Griffin and Block’s recess appointments have been under fire after the D.C. Circuit Court of Appeals ruled in Noel Canning v. NLRB in January 2013 that they were invalid.