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With EFCA on the ropes, unions shift their focus to the NLRB

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in Employment Law,Human Resources

by Hal Coxson, Esq.

As we approach the Nov. 2 midterm congressional elections, chances for passage of the Employee Free Choice Act (EFCA) grow dimmer and dimmer. The union lobby lacks the votes in the Senate to stop a filibuster to take EFCA to the floor, and Congress lacks the stomach for tough labor votes so close to the election.

That hasn’t diminished unions’ push for EFCA-like reforms through the National Labor Relations Board (NLRB)—especially now that a solid three-vote majority of former union lawyers is serving on the board. The battleground clearly has shifted to the NLRB.

NLRB’s new composition

The NLRB is finally up to its five-member complement, after operating as a two-member board for over two years. The Senate recently confirmed two new members: Democrat Mark Gaston Pearce and Republican Brian Hayes, both Obama appointees.

They join Chairman Wilma Liebman (D), member Peter Schaumber (R) and member Craig Becker (D), the controversial former assistant general counsel of the Service Employees International Union and the AFL-CIO. The Senate had blocked Becker’s confirmation, but he will continue to serve as President Obama’s “recess appointee” until Congress adjourns at the end of 2011.

Obama has also named career NLRB lawyer Lafe Solomon as the acting general counsel.

Supreme Court rebukes NLRB

During the more than two-year span in which there were only two NLRB members, the board decided more than 600 relatively straightforward cases, while deferring consideration of some 100 cases on which Liebman and Schaumber could not agree or that would reverse NLRB precedent.

Now the new NLRB is rushing to issue new decisions that reverse NLRB precedent while the board still consists of five members.

At the same time it also will have its hands full reconsidering a series of cases previously decided by the two-member board following the U.S. Supreme Court’s stunning rebuke to the board’s authority to issue such rulings. In New Process Steel v. NLRB, the court ruled that the NLRB did not have the authority to issue two-member orders.

The court stated: “We are not insensitive to the board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the board’s full power be delegated to no fewer than three members, and to provide for a board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances.”

Now-retired Justice John Paul Stevens concluded with the following memorable words: “Section 3(b), as it currently exists, does not authorize the board to create a tail that would not only wag the dog, but would continue to wag after the dog died.”

Back to the board

As a result of that decision, on July 1 the board asked that its orders from the 96 two-member decisions pending in all federal courts of appeals be remanded to the NLRB for further consideration. Each of those cases will be considered by a three-member panel of the board, which will include Liebman and Schaumber. Consistent with board practice, the new board members will have the opportunity to participate in the case if they want to.

But while some courts have complied with the NLRB’s remand request, others have refused—inviting the argument that the board has no mechanism to reconsider the decision. For example, in June, the 8th Circuit Court of Appeals denied enforcement in NLRB v. Whitesell Corp. and NLRB v. American Directional Boring, Inc.

Pending issues

Although the new board has been distracted by the New Process Steel decision, there are several significant issues that have been recently decided or are awaiting board action, including:

  • NLRB member Becker’s (who is believed to be the first member to have worked for a labor union immediately prior to service on the board) stance on recusal.
  • The advancement of members-only, nonmajority bargaining
  • Electronic balloting in union representation elections.


Author: Hal Coxson is a principal with Ogletree Governmental Affairs and a shareholder in the Washington, D.C., office of Ogletree Deakins.

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