Wyatt Employment Law Report

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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.

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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.

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NLRB Announces Case Statistics for Fiscal Yeal 2012

By Edwin S. Hopson

On October 16, 2012, the National Labor Relations Board announced that in the fiscal year just ended on September 30, 2012, it had issued 341 decisions in contested cases.  Of that total, 277 were unfair labor practice cases and 64 were representation cases.  It also stated that the median age of pending cases was reduced from 219 days to 108 days.

It was also noted that there was considerable turnover in board members during this past fiscal year:  the recess appointment of Member Craig Becker expired on Jan. 3, 2012; three new members – Richard F. Griffin, Jr., Sharon Block and Terence Flynn – were recess-appointed by the President and took office in early January, 2012; and Member Flynn resigned his position effective July 24, 2012. The Board currently has four of the five board member positions filled by Chairman Mark Pearce, and Members Hayes, Griffin and Block.  Hayes’ term expires on December 16, 2012.

In its October 16 press release, the Board listed a number of cases of significance that were decided this past fiscal year:

“Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.”

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NLRB Member Terence Flynn Tenders His Resignation

By Edwin S. Hopson

The National Labor Relations Board announced on May 27, 2012, that Board Member Terence F. Flynn, a Republican, had submitted his resignation the day before to President Obama and to NLRB Chairman Mark Pearce. Flynn’s resignation came after allegations surfaced that he had provided confidential information to former Board members including his former boss, Peter Schaumber who has worked on the Romney campaign.

Flynn’s resignation is effective July 24, 2012, but, according to the Board’s press release, Flynn has recused himself from all NLRB business effective immediately.

Flynn had received a recess appointment on January 4, 2012, and had been nominated many months earlier by President Obama. 

Chairman Pearce, who early in the controversy over Flynn’s alleged actions publicly expressed concern, was quoted in the press release as follows:  “Chairman Pearce informed NLRB employees of the resignation and, on behalf of the entire Board, thanked them for their ‘hard work and commitment to excellence through even the most difficult circumstances.’ 

The Flynn resignation reduces the Board to four Members—three Democrats and one Republican.

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U.S. Chamber of Commerce Challenges Legality of NLRB Recess Appointments

By Edwin S. Hopson

On March 15, 2012, the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) filed a motion to intervene with the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. National Labor Relations Board, Case No. 12-1115, an appeal by Noel Canning of an unfair labor practice decision by the Board issued February 8, 2012 by Members Block, Flynn and Hayes.  The Chamber and CDW seek to challenge the authority of the National Labor Relations Board to adjudicate charges absent a proper three-member quorum.  It claims that the President’s recess appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB in January 2012, unlawfully circumvented the U.S. Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. According to the motion to intervene, the three recess appointments to the Board were not legally effective because the President made them when the Senate was in actually session, not in recess. Since at that time there were only two confirmed Members of the five-Member Board, the Chamber and CDW contend, that there was lacking a legal quorum as required by the Supreme Court’s New Process Steel decision.  Therefore, the Board had no authority to issue its decision involving Noel Canning, according to the Chamber and CDW.

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Federal Judge Issues Ruling on NLRB’s Rule Requiring Notice Posting

By Edwin S. Hopson

In National Association of Manufacturers v. National Labor Relations Board, et al., Civil No. 11-1629 (ABJ), U.S. District Judge Amy Berman Jackson, an appointee of President Obama’s, issued her decision on March 2, 2012, granting in part and denying in part the plaintiff association’s request to block the NLRB’s new notice posting rule which is to go into effect April 30, 2012. JudgeJackson ruled that the NLRB did not exceed its authority under the National Labor Relations Act by requiring all employers subject to the Act to post a notice advising employees of their rights under the Act.  However, she also ruled that the portion of the rule which would deem an employer’s failure to post the NLRB notice to be an unfair labor practice, and the provision that tolls the statute of limitations in the case of unfair labor practice charges where the employer failed to post the notice, do in fact violate the Act and are therefore invalid as a matter of law.

The district judge declined to take up a challenge to the recess appointments by President Obama to the NLRB that occurred after the Board’s issuance of the notice-posting regulation in question.

The full text of the ruling may be found at:


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Joint Resolutions Proposed in the House and Senate to Overrule NLRB’s New Election Rules

By Edwin S. Hopson

On February 16, 2012, the U.S. House Education and the Workforce Chairman John Kline (R-MN), joined by Rep. Phil Gingrey (R-GA) and Rep. Phil Roe (R-TN), introduced H.J. Resolution 103 under the Congressional Review Act (5 U.S.C. §§801-808) that would block the National Labor Relations Board’s December 21, 2011, new representation election rules intended to speed up and streamline the Board’s union representation election process, to be effective April 30, 2012. Sixty-five House members as of now support the resolution.

A companion resolution (S. J. Res. 63) was also introduced in the U. S. Senate by Senator Mike Enzi (R-WY) and Senator Johnny Isakson (R-GA).  S. J. Res. 63 has the support so far from 44 Senators.

The December 2011 rules were only a portion of proposed changes announced in June, 2011.  Since December, NLRB Chairman Pearce has indicated he intended to bring up for consideration later this year the remaining proposals designed to speed up the election process. 

At a press conference on February 16, Chairman Kline stated: “With the addition of these three non-recess ‘recess’ appointees [to the NLRB], it’s very clear to us that Chairman Pearce from the NLRB intends to go back and pick up some of those provisions that were left out from the rule passed last year. We are very concerned about this board and its agenda. We’re pleased the Senate is going forward with this resolution of disapproval and we look forward to being right there with them.”

The Congressional Review Act was enacted by the Congress as a part of the Contract with America Advancement Act of 1996 and is also known as the Small Business Regulatory Enforcement Fairness Act of 1996. The law permits the Congress to review, on an expedited basis, new federal regulations issued by government agencies and, by passage of a joint resolution, overrule the regulations.  It would appear that the Republicans in the House may be able to pass the resolution, but it would seem more doubtful in the Democrat-controlled Senate.