National Labor Relations Board General Counsel Richard Griffin discussed various steps the Board is taking in light of the Noel Canning decision, as well as his office's priorities during a July 9 webinar sponsored by the American Bar Association.
During the first part of the program, Griffin provided an update on the Board's pending cases following the Supreme Court's finding in Noel Canning that the three January 2012 recess appointments to the Board were invalid. Griffin explained that there were a total of 98 cases in the federal courts of appeals involving the January 2012 recess appointees. Of those cases, 43 were "no record" cases in which the Board had not yet filed a record in the court. Therefore, pursuant to Section 10(d) of the NLRA, which provides: "Until the record in a case shall have been filed in a court, as hereinafter provided, the Board may at any time, upon reasonable notice and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it," the Board was able to set aside the orders in those cases, and filed motions to dismiss.
In the 55 cases in which the record had been filed with the court, the Board has filed motions in 49 of those cases asking the court to vacate and remand the matter. The Board has yet to file such motions in the remaining six cases. The courts of appeal have returned eight of these record cases, and one of the 43 "no record" cases.
With respect to the challenges to cases involving former member Craig Becker, 34 cases are still pending, and have been held in abeyance. Because Griffin said Noel Canning did not invalidate Becker's recess appointment, his office has filed motions asking that those cases be taken out of abeyance.
Overall, Griffin said that the Board is "still working" to address the impact Noel Canning has had on the case backlog.
With respect to regional directors appointed during the January 2012 recess appointment period, Griffin said that while the formulation of the Board's position on this issue is "still in process," there were only three regional directors appointed during the time in question, so the matter is somewhat limited. In addition, he said that in 2011 the Board published an Order delegating appointment authority to the General Counsel, which Griffin said may wind up serving as the basis for the Board's position on this topic.
When asked about the various regional directors' direction of elections during the disputed Noel Canning period, Griffin said the same response applies.
As for the precedential value of the cases not appealed, Griffin said that while the decisions do not have precedential value, his position is the reasoning behind those decisions should be considered persuasive and adopted.
Griffin then pivoted to a discussion of his priorities as General Counsel. He emphasized that NLRA Section 10(j) injunctions are "a very important priority." In April 2014 he issued GC Memo 14-03, which he said "reiterates the importance of seeking section 10(j) relief." As he stated in the memo, "During my tenure as General Counsel, I intend to aggressively seek 10(j) relief where necessary to preserve the status quo and the efficacy of final Board orders..."
Griffin also reiterated support for former General Counsel Ronald Meisberg's initiative on first-contract bargaining cases and former Acting General Counsel Lafe Solomon's initiative concerning unlawful discharges in organizing campaigns.
Other priorities Griffin flagged include:
- Successorship cases, particularly those involving refusal to hire.
- Issues that trigger mandatory submission to the office of advice. As discussed in a February 2014 GC memo, the GC's office is looking at a number of legal issues to address, many of which have been on the list before. Some of Griffin's new initiatives include, for example, cases involving an employer's bargaining position that it is unable to pay. Griffin said that the problem is that employers may genuinely be unable to pay for a particular union demand, but because it is concerned about disclosing as much, it makes other assertions during the collective bargaining process. The GC said such "shadow boxing does not lead to good faith negotiations."
- Employees' Section 7 right to use an employer's e-mail system. Griffin said he has taken the position that the Board should overturn Register Guard, in which a prior Board had held that employees do not have a right to use their employer's email system for organizing activities.
- Remedial issues concerning undocumented workers.
The remainder of the ABA's webinar focused on such issues as the Northwestern University student athlete case, proposed representation election rules, and other areas in which the Board has solicited public input.
Littler's WPI is closely monitoring post-Noel Canning Board positions, and will continue to advise on these developments as events warrant.
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