Labor board in limbo

Cloud over the NLRB makes it tricky to advise on labor matters

During the first Obama administration, the National Labor Relations Board (NLRB) became the major nemesis for union and nonunion employers alike. With Congress stalemated, the administration was largely shut out from passing new worker-friendly laws. With the exception of the Lilly Ledbetter Fair Pay Act, Congress added no significant new labor and employment laws to the books during Obama’s first term. This frustrated unions, which had hoped a Democratic administration would propel the Employee Free Choice Act (EFCA) and other pro-union legislation.

So attention turned to the agencies, especially the NLRB, where the president appointed an activist acting general counsel and pro-union board members. The board proposed union election rules that incorporated the goals of the EFCA by speeding up the election process and a regulation requiring posting of a notice in all workplaces alerting workers to their rights under the National Labor Relations Act. The acting GC took an active interest in curtailing employer control of employees’ use of social media. And he stirred up a hornet’s nest by threatening to force Boeing to move production from a new plant in the right-to-work state of South Carolina to the state of Washington, where most of its workers are unionized—a case that later settled, but not without incurring lasting wrath from the business community and legislators.

Additionally, if the Noel Canning decision stands, it is possible that all NLRB decisions starting Aug. 27, 2011, will be invalidated. On that date, the terms of Chairman Wilma Liebman and Member Peter Schaumber expired, leaving three members on the labor board: Mark Gaston Pearce, Brian Hayes and Craig Becker, another Obama recess appointee who has since left the board. If, under the appeals court’s reasoning in Noel Canning, Becker’s recess appointment was also unconstitutional, the board has been acting without the necessary quorum since Aug. 27, 2011. Thus, all decisions from that date on—including the quickie election rule and such important decisions as D.R. Horton, Inc., which limited an employer’s ability to restrict employee joint, class or collective actions—could be thrown out. An appeal of D.R. Horton is pending in the 5th Circuit, and Horton’s counsel has cited Noel Canning in challenging the validity of Becker’s recess appointment and therefore the board’s decision.

Noel Canning is the specter that is above anything and everything that is going on at the board,” says Philip Rosen, a Jackson Lewis partner.

House Action

While the Senate has the power to approve or deny appointments, the Republican-controlled House found its own way to express discontent with the labor board. On April 11, the House narrowly passed the Preventing Greater Uncertainty in Labor-Management Relations Act by a vote of 219-209, largely along party lines. This bill would limit NLRB activities until the Senate confirms at least three members, the recess appointees’ terms expire or the Supreme Court rules on the legitimacy of the recess appointments. Specifically, it would prevent the board from implementing, administering or enforcing any decision, rule or other action that required a quorum vote on or after Jan. 4, 2012—the date of the recess appointments. If additional board members are validly confirmed, they would be required to review all of the actions of the prior board.

According to news reports, during floor debate, Rep. John Kline, R-Minn., chairman of the House Committee on Education and the Workforce, said, “Never has [the board] faced this level of confusion and uncertainty. … Roughly 600 board decisions are constitutionally suspect, and that number continues to grow.”

Senior Editor

Mary Swanton

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