Wyatt Employment Law Report

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The NLRB Rules “Bannering” Is Not Picketing or Otherwise Conduct Violative of Section 8(b)(4)(ii)(B) of the NLRA

By Edwin S. Hopson

In United Brotherhood of Carpenters Local 1506 (Eliason & Knuth of Arizona),, 355 NLRB No. 159 (2010), the National Labor Relations Board held that “bannering” by a union at locations associated with secondary employers did not constitute picketing nor was it sufficiently akin to picketing to constitute a threat or coercion within the meaning of Section 8(b)(4)(ii)(B) – secondary boycott provisions of the National Labor Relations Act.

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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.

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Supreme Court Issues Decision Invalidating Two-Member NLRB Decisions

By Edwin S. Hopson

On June 17, 2010, in New Process Steel, LP v. NLRB, 560 U.S. ____ (2010), the U.S. Supreme Court, in a 5 to 4 decision, ruled that the National Labor Relations Board could not operate as a two member Board due to vacancies which reduced its number from five members down to two.  The majority opinion by Justice Stevens was supported by Chief Justice Roberts, and Justices Scalia, Thomas and Alito.  Justice Kennedy wrote a dissent which was joined in by Justices Ginsberg, Breyer and Sotomayor.

 Toward the end of December, 2007, when it appeared that the Board would be reduced from four members to two due to vacancies occasioned by expiring recess appointments, the four members delegated their authority to a three member panel consisting of Members Liebman, Schaumber and Kirsanow, although Kirsanow’s recess appointment was about to expire.  It was believed that although Kirsanow was about to depart, that the remaining two members were a quorum of the three member panel to which the delegation had been made.  This was based primarily on an opinion from the Office of Legal Counsel of the U.S. Department of Justice, and limited prior practice.  The four member Board also delegated the Board’s authority to authorize certain litigation to the Board’s General Counsel.  That delegation was not under review by the Supreme Court in the instant case.

 Over the next 27 months, the Board operated with only two members and issued close to 600 cases.  The validity of those decisions appears now to be nonexistent.

 The majority construed Section 3(b) of the National Labor Relations Act to permit two member Board decisions only when the three member panel was reduced to two based on disqualification rather than vacancy.

 How the NLRB will deal with the almost 600 cases remains to be seen.  It is also possible that the Board’s 2007 delegation to the General Counsel of certain authority to litigate cases under the NLRA may now be challenged.