Wyatt Employment Law Report

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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.”

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Oral Argument is Set in Case Challenging Recess Appointments to the NLRB

By Edwin S. Hopson

On September 28, 2012, we reported that the U.S. Senate Minority Leader, Mitch McConnell, had announced that he and 41 other Senators had filed an amicus curiae brief in the U.S. Court of Appeals for the District of Columbia in Noel Canning v. NLRB, Nos. 12-1115, 12-1153, challenging the constitutionality of the recess appointments made on January 4, 2012, to the National Labor Relations Board by President Obama. 

Oral argument in this case is now set for December 5, 2012, before Circuit Judges Sentelle, Henderson and Griffith.  A decision can be expected within several months after the argument.

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Judge Rejects NLRB’s Motion to Set Aside Decision Enjoining Implementation of New Election Rules

By Edwin S. Hopson

In Chamber of Commerce of the United States, et al. v. National Labor Relations Board, Civil No. 11-2262, the U.S. District Court for the District of Columbia had enjoined on May 14, 2012, the NLRB’s implementation of its new regulations relating to representation elections based upon a lack of quorum.  Thereafter, the NLRB filed a motion in the district court requesting that the judge alter or amend the judgment to permit it to implement its new election regulations.

On July 27, 2012, the district judge denied the motion and again invited the NLRB to vote again on the new rules.  The Board has yet to take the court up on that move and will likely appeal his ruling to the U.S. Court of Appeals for the District of Columbia Circuit.  The July 27 ruling can be found at:


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Federal Judge Overturns NLRB’s New Rules Regarding Union Representation Elections

By Edwin S. Hopson

A federal judge in Washington, D.C. has ruled in Chamber of Commerce of the United States, et al. v. National Labor Relations Board that the NLRB lacked a quorum when it approved new rules governing union representation elections and that therefore the rules are invalid.  In his May 14, 2012 decision, U.S. District Judge James Boasberg found that NLRB Member Brian Hayes did not participate in the vote on the new rules, and that only Chairman Pearce and Member Becker actually were present for quorum purposes.  Under the Supreme Court’s decision in New Process Steel, it is clear the NLRB cannot effectively act with only two members as a quorum.  The Court pointed out that the NLRB could take up the rules again and consider their passage with a proper quorum.  The decision may be viewed at:


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Federal Judge Overturns NLRB’s Notice Posting Rule Set to Go Into Effect April 30, 2012

By Edwin S. Hopson

On April 13, 2012, U.S. District Judge David C. Norton of the U.S. District Court for South Carolina, ruled in an action brought by the U.S. Chamber of Commerce and others that the National Labor Relations Board’s notice posting rule set to go into effect April 30, 2012, was  “unlawful under the [Administrative Procedure Act] … 5 U.S.C. § 706….”  This rule was applicable to all private employers subject to the National Labor Relations Act.  The ruling conflicts with an earlier ruling by the U.S. District Court for the District of Columbia upholding in part the NLRB’s notice posting rule.

Judge Norton’s decision may be viewed at :


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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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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: