Washington Insider Update: What are the Labor and Employment Implications of the Senate's Recent Activities?

According to the latest from Capitol Hill “insiders,” the Senate will likely confirm all five pending nominees to the National Labor Relations Board before the chamber’s August recess. Board Chairman Mark Gaston Pearce’s term was set to expire at the end of August, leading many to initially believe that the Board would once again be left without a functioning quorum. Instead, due torecent Senate deal-making to avoid the so-called “nuclear option,” which includes the nomination of two new pro-union members to replace the recess appointees, the Board will be fully operational in a month’s time. Once confirmed, there will be a solid pro-union majority prepared to implement the aggressive agenda that was under way before the recess appointment hiatus, albeit with dissenting opinions from the Republicans. As Littler’s Ilyse Schuman, co-chair of the firm’s Workplace Policy Institute, stated in today’s interview on NPR, these new members will be able to act without the specter of illegality hanging over them: “With this cloud of uncertainty removed from the authority of the Board, it is going to return full speed ahead, if not even faster, on implementing . . . enormous changes to labor-management relations."

Recess appointee Richard Griffin – whose nomination was withdrawn as part of the Senate deal (along with that of fellow recess appointee Sharon Block) – is rumored to be in line for the NLRB General Counsel (GC) position. If so, Griffin would replace beleaguered candidate Lafe Solomon, who has been serving in an acting capacity. Confirming either Solomon or Griffin as GC was not part of the Senate deal, but as Solomon has demonstrated over the past couple of years, the acting GC has all the power he needs to enforce the National Labor Relations Act (absent a successful challenge to his authority).

Griffin and Block will remain on the Board only until the new members are confirmed. Although there has been some question as to whether candidates Nancy Schiffer and Kent Hirozawa can be vetted in so short a time period, there exists precedent for doing so.

The withdrawal of the controversial recess appointees can be viewed as a veiled concession that their appointment was unconstitutional, or legally questionable at the very least. The Supreme Court recently agreed to review the U.S Court of Appeals for the D.C. Circuit’s decision invalidating the recess appointments in NLRB v. Noel Canning. If the Court upholds Noel Canning, the fate of more than 1,000 decisions decided by recess appointees would be uncertain. After the Court held in the 2010 New Process Steel decision that the Board must operate with at least three sitting members, the NLRB had to revisit and resolve more than 600 cases.

Briefs in the Noel Canning case are due in November-December of this year with oral argument expected in January, 2014. The Court is expected to issue an opinion in this case in late spring of next year. The Obama administration has indicated (so far) that it will continue to seek Supreme Court resolution of the recess appointment issue.

The new Board members cannot immediately act to “reaffirm” the recess appointees’ decisions that are pending in the court of appeals, though they could seek voluntary remands for the purpose of reconsidering those cases. But there are reasons for them not to do that unless and until the Supreme Court forces their hand.

Rulemaking Options

It is too soon to tell what the new Board strategy will be on the “ambush” election rule, which the D.C. Circuit stayed pending Noel Canning. The Board could seek voluntary remand, or could just have a new vote on either the previously enacted rule or an even worse one. The new Board is expected to forge ahead to get a speedier elections rule in place, one way or the other.

As Ilyse Schuman explained during the NPR interview, “In the face of the legislative logjam . . . there are other avenues – administrative avenues – that are being turned to to try to achieve those same objectives . . . to facilitate union organizing and increase the sort of record low numbers of union membership.”

The Notice Poster rule – which would have required employers to conspicuously display a notice informing employees of their rights under the NLRA but was invalidated by the D.C. Circuit – is not affected by the Noel Canning issue, so the Board’s only option there is to seek rehearing en banc in the D.C. and 4th Circuits and/or petition for Supreme Court review. Notably, the deadline for en banc petitioning to the D.C. Circuit is this Monday. Littler continues to represent a broad coalition of business groups opposing the NLRB’s efforts to implement the Notice Poster rule, and will be opposing any petition for Supreme Court review.

NLRB Decisions

The host of NLRB decisions that reversed or expanded precedent in the last couple of years all remain on the books. These include Specialty Healthcare (micro-units), Horton (class action waivers), Banner Health (confidentiality policies re internal investigations), and cases dealing with union access, bargaining, social media, and concerted activity, to name only a few. The new Board is not expected to wait for appellate rulings to expand their reach. On the other hand, virtually all of the foregoing issues are still pending in the appeals courts, so there is no telling how they will play out, leaving hard calls for employers (and their advisors) in making basic labor relations decisions.

Department of Labor

Turning to the Labor Department, Thomas Perez was confirmed as the new Secretary of Labor yesterday by a party line vote of 54-46. His confirmation is expected to release a flood of DOL regulations that have been held up over the last year. Prominent among them are the Persuader Rule and the OFCCP vets/disability rule. Littler is taking a leading role in opposing both of these rules, along with other actions by the administration to change the rules affecting employers (OSHA inspections, Davis-Bacon enforcement, worker classification issues, to name a few).

There will be many significant labor law developments in the coming months as a result of this week’s actions in Washington. We will keep you posted.

If you are interested in joining the Workplace Policy Institute, please contact Michael Lotito atmlotito@littler.com

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.