Labor Relations Counsel - Legal Insight into Labor Relations Developments

President Obama has announced his intent to re-name Mark Gaston Pearce as Chairman of the National Labor Relations Board (NLRB), as well as seat Harry I. Johnson, III and Philip A. Miscimarra as new members. It is likely that all three nominees will be presented to the Senate as a package. However, it remains to be seen if, and when, the Senate will act on their nominations. Continue reading this entry at Littler's DC Employment Law Update.

The Acting General Counsel of the National Labor Relations Board continues his efforts to promote change and implement new standards. However, in a refreshing change of pace, the Acting GC Lafe Solomon recently issued a memorandum and new directive that could benefit employers. Indeed, the Acting GC’s modification to prior Board settlement protocol could prove an asset for employers seeking to resolve NLRB cases. Specifically, the recent memorandum (pdf) explains and directs that National Labor Relations Board settlement agreements may now include front pay to charging parties. This is a significant departure from prior Board precedent and alters the NLRB’s institutional approach towards the monetary elements of brokering settlements.

For those familiar with employment litigation and disputes involving other federal administrative agencies, the concept of front pay – compensation in lieu of a claimant’s reinstatement – as a remedy is well known. Yet, Board policy had required that settlements involving a waiver of reinstatement for payments that exceed 100% backpay be set forth in non-Board “side letters” that would accompany the official Board-endorsed settlement. In Acting GC Solomon’s memorandum, he explains that the NLRB’s policy should favor settlements. In this spirit, the memorandum further advises that the Board’s Compliance Casehandling Manual (CHM) §10592.8 has been revised – specifically, so as to permit the inclusion of front pay in Board settlements of discriminatory discharge or layoff cases. This represents a new approach by the Board to handling resolution options pertaining to unfair labor practice litigation.

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In anticipation of the April 30, 2012 implementation date for the new National Labor Relations Board representation election rule, the Board’s Office of the General Counsel has issued guidance (pdf) on the representation case procedure changes. The Board has also released a set of frequently asked questions (FAQs) on the impact of the new election procedures. As discussed in the Board guidance, the new election rule makes the following changes to existing practices:

• Stipulates that the statutory purpose of a pre-election hearing is to determine if a question concerning representation exists;
• Clarifies that hearing officers presiding over pre-election hearings have the authority to limit the presentation of evidence to that which supports a party’s contentions and is relevant to the existence of a question concerning representation;
• Gives hearing officers presiding over pre-election hearings discretion over the filing of post-hearing briefs, including over the issues to be addressed and the time for filing, subject to the authority of the regional director;
• Defers most requests for Board review—with the exception of special permission to appeal—until after the election;
• Eliminates the recommendation that the regional director should ordinarily not schedule an election sooner than 25 days after the decision and direction of election;
• Clarifies and narrows the circumstances under which a request for special permission to appeal to the Board will be granted; and
• Creates a uniform procedure for resolving election objections and potentially outcome-determinative challenges in stipulated and directed election cases and provides that Board review of regional directors’ resolution of such disputes is discretionary.

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Littler Shareholder Stefan Marculewicz was among the panelists testifying on Tuesday before the House Committee on Education and the Workforce about the legal and practical implications of the President’s decision to make recess appointments to the National Labor Relations Board (NLRB or Board) last month. On January 4, 2012, President Obama sat three new members to the NLRB, as well as a new director to lead the Consumer Financial Protection Bureau (CFPB), while the Senate was still holding periodic pro forma sessions. This move has provoked a pointed response from various sectors, inviting a lawsuit from a group of business advocacy groups, a resolution and bill condemning the appointments, and a series of congressional hearings to discuss the legitimacy of the President’s actions. Continue reading this entry at Littler's Washington DC Employment Law Update.

On January 4, 2012, President Obama announced his intention to make three recess appointments to the National Labor Relations Board. According to the White House press release, the President will seat Sharon Block (D), Richard Griffin (D), and Terence Flynn (R) to the Board via recess appointment. Anticipating that in 2012 the five-member Board would be left with just two sitting members – Chairman Mark Gaston Pearce (D) and Brian Hayes (R) – Obama nominated Block and Griffin to serve on the Board last month. The third recess appointee, Terence Flynn, was named as an NLRB candidate last year, but the Senate did not act on any of these nominations in 2011.

As established by the Supreme Court in the 2010 opinion New Process Steel, the Board requires at least three sitting members to exercise its full authority. When former member Craig Becker’s recess appointment expired on January 3, 2012, the Board ceased to have the ability to exercise that authority. Some have contended that the Senate has been holding pro forma sessions – in which it convenes every few days but carries out no substantive work – in order to prevent the President from making new Board appointments. The President contends, however, that he has the authority to make recess appointments when the Senate is “effectively” in recess.

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President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s recess appointment expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so.

According to information published by the White House, Block has worked as an attorney in both the private and public sectors. She currently serves as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Her other positions have included Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy, and senior attorney to former NLRB Chairman Robert Battista.

Griffin is a long-term attorney for the International Union of Operating Engineers (IUOE). He is currently the union’s General Counsel, and has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee for the past 17 years. Griffin also has worked as a counsel to NLRB Board Members.

By David Kadela

In an unprecedented development, and by a 2-1 vote, the National Labor Relations Board on November 30, 2011, approved a resolution to prepare a final rule adopting a subset of the controversial election rule amendments the Board published for comment in June 2011. The two-member majority was made up of Chairman Mark Pearce and Member Craig Becker, both of whom come from union backgrounds. The Board's lone Republican, Member Brian Hayes, voted against the resolution, criticizing the proposed amendments and the process by which they had been vetted as fundamentally flawed.

What makes this development unprecedented, and radical in the eyes of many, is that it defies a decades-old practice of the Board, regardless of the political party in the majority.  Continue reading about this development here.

Anticipating that the National Labor Relations Board may be left with only two sitting members come January, the agency has issued an order (pdf) temporarily granting the General Counsel (GC) full authority over litigation matters that would otherwise require Board authorization and the ability to certify the results of any secret ballot election conducted under the National Emergency provisions of the Labor Management Relations Act (LMRA). Currently, the Board is comprised of Chairman Mark Gaston Pearce and Members Brian Hayes and Craig Becker. Terence F. Flynn’s nomination to fill the vacant Republican seat on the Board is still pending, and Becker’s controversial recess appointment is set to expire at the end of 2011. While President Obama re-nominated Becker to serve a full term, it is virtually assured that the Senate will not confirm him. Procedural maneuvers may prevent the President from making recess appointments, leaving just two sitting members in 2012. Continue reading this entry at Littler's Washington DC Employment Law Update.

While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012.

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By Peter Petesch

In a move consistent with organized labor’s push for an accelerated collective bargaining process for airlines and railroads, the National Mediation Board (NMB) announced the implementation of its expedited mediation project. (pdf) The new program is designed ostensibly to move the mediation process – whose purpose is to resolve collective bargaining disputes in the airline and railroad industries – along. In a press release, Larry Gibbons, NMB Director for Mediation, said the program was in response to a report (pdf) issued in 2010 by the Dunlop II Committee, a joint labor-management committee formed to examine the internal functions, policies and procedures of the NMB and make recommendations for procedural or policy changes. Gibbons explained that the report “...recommended, among other things, that case management strategies be developed to help address [mediation] disputes in a timely and methodical manner.” From this general recommendation in Dunlop II, the NMB developed protocols for expedited mediation. The initiative stops far short of recommendations principally from unions for explicit time limits on mediation. Yet, the initiative works to dispel the perception held by some that mediation is an endless process.

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The NLRB’s Office of the General Counsel has issued a new memorandum (pdf) outlining the categories of cases that must be submitted to the agency’s Division of Advice.

Acting General Counsel (GC) Lafe Solomon has indicated that the current list, which was last updated in 2007, needs to be revised on account of the new agency and court decisions, as well as policy issues that have emerged in recent years.

The revised list provides some insight into the nature of cases the GC considers to be of particular importance from a policy standpoint. It also reflects current areas of the law where the GC may be seeking to overturn existing precedent or decisions issued by the Board during the previous presidential administration. The GC Memorandum also includes many of the other types of cases to be submitted to the Division of Advice that were listed in the 2007 version of this document.

Of particular interest is the fact that the GC Memorandum lists a number of cases that are to be submitted to the Division of Advice because they “involve identified policy priorities.” Several of these cases may be of particular interest to those following the policy directions of the Board under the current administration, and they include the following:

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The NLRB has issued an invitation to file briefs (pdf) to help the agency define the scope of an employer’s duty to provide to the union “witness statements” it obtains in the course of an investigation. This issue arose in Stephens Media, LLC d/b/a Hawaii Tribune-Herald, (pdf) a case recently decided by the Board. In that case, the Board found that the employer had committed unfair labor practices related to the termination of an employee for insubordination.  Among other things, the Board found that the employer had violated Sections 8(a)(5) and (1) of the National Labor Relations Act by refusing to provide or delaying the provision of relevant information requested by the union. In deciding the case, however, the Board separated the question of whether the employer had a duty to provide the union with statements it obtained during the course of its investigation of the employee’s alleged misconduct. In discussing the reasons for severing this issue from the other ULP charges, the NLRB explained that:

Board precedent establishes that the duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Fleming Cos., 332 NLRB 1086, 1087 (2000), quoting Anheuser-Busch, Inc., 237 NLRB 982, 985 (1978). Compare Northern Indiana Public Service Co., 347 NLRB 210 (2006) (employer notes of investigatory interviews of employees held confidential). This case illustrates, however, that Board precedent does not clearly define the scope of the category of “witness statements.” This case also illustrates that the Board’s existing jurisprudence may require the parties as well as judges and the Board to perform two levels of analysis to determine whether there is a duty to provide a statement: first asking if the statement is a witness statement under Fleming and Anheuser-Busch and then, if the statement is not so classified, asking if it is nevertheless attorney work product.

In its invitation, the Board asks whether it should continue to adhere to its decision in Anheuser-Busch, Inc. (pdf) that an employer’s duty to furnish information under Section 8(a)(5) of the Act does not encompass the duty to furnish witness statements. If commenters believe that it should not rely on this precedent, the Board seeks input on the standard that should be applied to requests for such statements or any other statements that an employer obtains in the course of its investigation into alleged employee misconduct. Also, if the statements at issue are not witness statements, the Board asks whether such documents are “nevertheless [] privileged from disclosure to the union as attorney work product.”

Interested parties may electronically submit briefs no longer than 25 pages in length to the Board on or before April 1, 2011. Responsive briefs no longer than 10 pages may be filed by April 15.

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The DOL’s Office of Labor Management Standards (OLMS) has announced the initiation of its Persuader Reporting Orientation Program (PROP). According to the agency, this program is “designed to provide compliance assistance to employers and labor relations consultants that are likely to enter into reportable agreements or arrangements pursuant to LMRDA section 203.” Specifically, under this initiative, the OLMS compiles contact information of employers and their attorneys based on representation petitions filed with the NLRB. The OLMS will then use this information to send an orientation letter to the employers and to their representatives in the NLRB proceeding “informing them of their potential reporting obligations under the LMRDA, where to locate the reporting forms and instructions, and how to contact OLMS to ask questions or receive additional information.”

Section 203 requires an employer to report on Form LM-10 any agreement or arrangement with a third-party consultant to persuade employees regarding their collective bargaining rights or to gather certain information about employee activities or a labor organization in connection with a labor dispute. The labor relations consultant must report on Form LM-20 information about such an agreement or arrangement. Currently, the LMRDA provides for certain “advice” exemptions from these reporting requirements. As explained by the OLMS, these exemptions “provide, in part, that no report is required covering the services of a consultant or other person by reason of his or her giving or agreeing to give advice to such employer, or representing or agreeing to represent the employer in administrative, arbitral, or court proceedings or in collective bargaining.” More information on the various disclosure forms can be found here.

During a recent web chat to discuss the OLMS’s regulatory agenda, OLMS Director John Lund said that the agency intends to publish a proposed rule by June of this year that would narrow the scope of the advice exemption and expand persuader reporting under Section 203. If the new regulations are enacted in the manner expected, they could significantly impair employer speech rights and the right to legal counsel during union organizing campaigns.

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Although it is considered a long-shot attempt, President Obama is trying once again to seat controversial nominee Craig Becker to the National Labor Relations Board for a full term. First nominated in July 2009 and seated via recess appointment in April 2010, Becker, who served as Associate General Counsel to both the SEIU and the AFL-CIO, has not tread an easy path to the NLRB and faces certain opposition in light of Obama’s latest move.

Almost immediately after Obama announced his intent to nominate Becker in April 2009, many in the business community voiced concern about his divisive views regarding an employer’s role during a representation election campaign, as well as his perceived willingness to use Board decisions to effectively institute elements of the proposed Employee Free Choice Act. Likely due to this outcry, in the Fall of 2009, Sen. John McCain (R-AZ) put a hold on Becker’s nomination. Before the 2009 holiday recess, the Senate returned his nomination to the White House for reconsideration.

Despite this concern, the President re-submitted Becker’s nomination to the Senate in January 2010. Following a Senate hearing on his nomination, during which Becker tried to allay concerns about his ability to be impartial, the Senate failed to advance his nomination by a vote of 52-33 in February 2010. His supporters needed at least 60 votes to limit debate on his selection and allow a confirmation vote to occur. Despite the decisive outcome in the Senate vote, Obama used his recess appointment power to seat Becker on the Board in March 2010.

Given the current political composition of the Senate, it is unlikely that lawmakers will have a change of heart and agree to confirm Becker for a full term. If not confirmed, Becker’s term will end on December 31 of this year.

In a new General Counsel (GC) memo – Revised Casehandling Instructions Regarding the Use of Default Language in Informal Settlement Agreements and Compliance Settlement Agreements – to all NLRB regional directors, officers-in-charge and resident officers, acting GC Lafe Solomon has instructed that all settlement agreements—including both informal and compliance settlements—should include the following default language:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party /Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

The memo further instructs that if a complaint has not already been issued, regional directors should incorporate language stating a complaint will be filed and that by signing the agreement, the party waives any right to file an answer. If the compliance specification has not been issued in a compliance case, the memo states the default language should provide that the Regional Director will issue a compliance specification that lists all liquidated backpay or other remedial provisions and provides that signing the agreement constitutes a wavier of any right to file an answer.

According to Solomon, using default language in settlement agreements “is an effective and appropriate means to ensure that a charged party/respondent will comply with the affirmative provisions of the settlement agreement.” In practice, however, such language may put employers at a disadvantage in the event the union believes the employer is in violation of the settlement.

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In keeping with the National Labor Relations Board’s recent efforts to comport with the Obama Administration’s efforts to enhance regulatory enforcement, including penalties, the Board’s Acting General Counsel (GC) has announced a new initiative targeting employers during union election campaigns. In a memorandum (pdf) sent to regional directors and officers, Acting GC Lafe Solomon urges all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. It should be noted that the so-called Employee Free Choice Act (EFCA) also called for enhanced penalties for alleged violations of the NLRA during a union organizing campaign. This new Board initiative is consistent with the Board’s efforts to administratively implement substantive portions of EFCA previously discussed in this blog.

Specifically, in such “nip-in-the-bud” cases, local Board regions are directed to seek a notice-reading remedy when an employee discharge is involved, and are encouraged to do so when an employer is believed to have committed any serious Section 8(a)(1) violation. If the ULP is believed to have interfered with communications between employees, or between employees and a union, regions are also directed to seek union access to an employer’s bulletin boards as well as employee names and addresses. This initiative builds upon a program introduced in September designed to streamline and expedite the process of seeking section 10(j) preliminary injunctions from federal courts in cases involving employee discharges during organizing drives.

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After serving eight years on the National Labor Relations Board (NLRB or “Board”), Member Peter C. Schaumber (R) has left the agency now that his second term has expired. Notably, for 27 months Schaumber served as one of only two members of the Board, issuing rulings in approximately 600 unfair labor practice cases during that period. The U.S. Supreme Court in New Process Steal v. NLRB recently invalidated those decisions, holding that the Board must operate with at least three acting members. Of this decision, Schaumber stated: “While the Supreme Court ultimately determined that a three-member quorum is necessary to issue decisions, Chairman Liebman and I set a tone for collegiality and dedication to case processing that I hope will carry forward to future Boards.”

Schaumber was nominated to the Board in 2002 by former President George W. Bush, and served as the agency’s Chair from 2008 until January 20, 2009, when President Obama appointed Wilma Liebman to that position. According to a press release, (pdf) Schaumber intends to take some time off before “returning to work in traditional labor law, government affairs and the legislative arena.”

Remaining on the Board are Chair Wilma Liebman (D) and Members Craig Becker (D), Mark Pearce (D), and Brian Hayes (R). There is no time table for nominating a replacement for Schaumber – which will be a Republican – to maintain the Board’s traditional minority party representation.

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