United States: 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 to recent 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Recess appointee Richard Griffin – whose nomination was withdrawn as part of the Senate deal (along with that of fellow recess appointee Sharon Block) – is rumored to be in line for the NLRB General Counsel (GC) position.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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Michael J. Lotito
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.