By: Bryan Bienias, Esq.

Seyfarth Synopsis: Former management-side labor attorney Peter Robb was confirmed as the General Counsel for the National Labor Relations Board, the last key piece to what many employers hope will result in the Board’s reversals of several Obama-era rulings.

On Wednesday, the U.S. Senate confirmed Peter Robb as the next General Counsel for the National Labor Relations Board.  Robb replaces former President Obama appointee, Richard Griffin, whose term expired at the end of October.

Robb is a former management-side labor and employment attorney and NLRB veteran, serving as field attorney and Chief Counsel to former Board Member Robert Hunter. In his private practice, Robb represented management in various aspects of labor and employment law and published a number of articles critical of some of the Obama-era Board’s more “anti-employer” decisions.

Robb’s ascension as General Counsel, the agency’s chief prosecutor, along with the Board’s newly comprised 3-2 Republican majority — its first in over a decade — sets the stage for the Board to likely begin the process of overturning some of those decisions toward more “business-friendly” policies. Among the rulings many hope to see reversed under this new regime are the Obama Board’s expansion of the joint employer standard, its decisions barring class-action waivers in employment agreements, and its sometimes draconian interpretations on innocuous workplace rules, to name a few.

Only time will tell which cases Robb and the Office of the General Counsel will use as vehicles to facilitate the anticipated reversals of the Obama Board’s more controversial rulings. But for now, it remains business as usual for employers, as the process of litigating these issues up to the newly comprised Board could take several years.

Stay tuned.

By: Christopher W. Kelleher, Esq.

Seyfarth Synopsis: After this week’s Senate confirmation, William J. Emanuel becomes the fifth member on the National Labor Relations Board and creates a 3-2 Republican majority. But employers must still play the waiting game to see a change in course from the Obama-era rulings.

The National Labor Relations Board took another big step away from the Obama-era Board composition earlier this week as William J. Emanuel gained Senate approval and was subsequently sworn in as the fifth and final (for now) Board member.  Mr. Emanuel brings extensive management-side experience to the Board, and he will be the third Republican member on the Board, giving Republicans a 3-2 majority over Democrats for the first time in over a decade.

While this may give employers reason to celebrate, on December 16, 2017, Chairman Philip Miscimarra will be stepping down. As we previously reported, President Trump will then have the opportunity to appoint another Board member.

Member Emanuel’s confirmation continues a flurry of activity surrounding the NLRB in recent months. Member Marvin Kaplan was confirmed in August, and President Trump recently nominated Peter Robb to succeed Richard Griffin as NLRB General Counsel.

While we expect to see the new “Trump Board” reverse many Obama-era decisions, it must wait for these issues to “percolate” before it can do so.

By: Marjorie Soto, Esq.

After being reportedly close to nominating retired Jones Day partner Roger King for the role, the White House announced last Friday that President Donald Trump will nominate Peter Robb, a management-side labor and employment attorney from Vermont, as the new NLRB General Counsel. If confirmed, he will replace former President Barack Obama’s current appointee, Richard F. Griffin, Jr., whose term expires this November.

Since 1995, Robb has been with Downs Rachlin Martin, a Vermont-based law firm. Robb represents corporations in all aspects of labor and employment law. Robb has recently published articles critical of the NLRB’s rules designed to speed up the representation election process and of the Board’s recent decisions that have struck down common workplace rules. Robb has experience working for the NLRB. He worked as a NLRB field attorney and Chief Counsel to former Board Member Robert Hunter.

This announcement comes as the Board commences to change to a Republican-majority Board– the first time this has occurred in over a decade. As a result, we expect to see policy shifts in the next upcoming years.

 

By: Howard M. Wexler, Esq.

As we previously reported (http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/), President Trump nominated two candidates for vacancies on the five-member National Labor Relations Board – William Emanuel and Marvin Kaplan.  The Senate approved Mr. Kaplan to fill one of the vacancies on August 2, 2017 by a 50-48 vote, but has yet to schedule a date to vote on Mr. Emanuel’s appointment.

Just as the Board was about to have its full complement of five members, Chairman Philip Miscimarra, in a letter to President Trump, announced that he will leave the Board when his term expires on December 16, 2017.  Accordingly, even if Mr. Emanuel is confirmed by the Senate, the Board will be back down to four members and President Trump will have the opportunity to appointment another Board member (and Chairperson) to replace Mr. Miscimarra.   In addition,  the term of Richard F. Griffin Jr. as the Board’s general counsel is set to expire in December as well. A Republican appointment to fill his position is likely to follow.

While employers hoped for sweeping changes at the Board with the election of President Trump, especially in connection with some of the Board’s more controversial rulings, such as those dealing with class action waivers in employment agreements, use of an employer’s email systems for union purposes, and unlawful handbook rules, we’ve previously cautioned our readers (http://www.employerlaborrelations.com/2017/05/25/change-to-occur-slowly-at-nlrb/) that such change tends to move more slowly at the Board.  With Chairman Miscimarra’s Beatles-esque decision to “say goodbye as [Mr. Kaplan and Emanuel] say hello“ we expect it to take even longer for the Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency’s history.  Stay tuned!

 

 

NLRB By: Samuel Sverdlov, Esq.

Seyfarth Synopsis: President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.

Five months after his inauguration, President Donald Trump has finally nominated a candidate for the remaining vacancy on the five-member National Labor Relations Board. The nominee, William Emanuel, is a management-side labor attorney with decades of labor and employment experience. President Trump’s nomination comes just days after the President nominated another Republican lawyer, Marvin Kaplan, to the other vacancy on the NLRB. Currently, the Democrats enjoy a 2-1 majority on the NLRB. However, if confirmed, Emanuel and Kaplan would join fellow Republican, Philip Miscimarra, in a 3-2 majority for Republicans on the NLRB.

President Trump’s recent nominations should give hope to private-sector employers. The business community has roundly criticized the Obama Board for a number of rulings that they argued overreached the Board’s authority, resulting in unreasonably pro-union decisions. With a Republican majority, the NLRB is poised to take a more employer-friendly approach. This is especially critical for employers as the Board may see fit to evaluate high-profile issues such as graduate student employment status, “micro-unit” issues, and “joint employer” relationships.

Emanuel’s nomination would be for a five-year term set to expire on August 27, 2021. At present, no confirmation hearing dates have been made public, and it is unclear whether the candidates will be confirmed before the August recess. As always, we will continue to update you with more information as it becomes available.

By: Jaclyn W. Hamlin, Esq.

Seyfarth Synopsis: A review and analysis of select NLRB cases decided by President Trump’s new appointee as Secretary of Labor and former NLRB Member Alexander Acosta.

With the withdrawal of Andrew Puzder from consideration for the Secretary of Labor vacancy on President Donald Trump’s cabinet, former NLRB Member Alexander Acosta has emerged as the candidate for the role. If confirmed, Mr. Acosta will become the first Hispanic member of the Trump Cabinet.  While his confirmation has not yet been accomplished, and it is impossible to predict precisely the direction the Department of Labor will take if and when Mr. Acosta assumes the mantle of leadership, reviewing some of his words from his time as an NLRB Member is an interesting exercise, and may provide a few clues about his priorities and possible goals.  One thing that stands out in the opinions is his desire to follow precedent and established law, even where it results in an outcome that he may not support philosophically.

Mr. Acosta was appointed to the NLRB by President George W. Bush, and served his tenure in 2002 and 2003, as a member of the Majority. Nonetheless, Mr. Acosta occasionally availed himself of concurring or dissenting opinions to highlight his views on particular issues.  Below, we review just a few.

Alexandria Clinic, P.A., 339 NLRB No. 162 (2003) – In a concurring opinion, Mr. Acosta agreed with his majority colleagues that the employer did not violate the NLRA when it discharged several employees for participating in a strike without giving the requisite notice under Section 8(g) of the Act.  Mr. Acosta explained his view that the statutory language was clear and that “because the statutory language is unambiguous, we cannot depart from it.”  Mr. Acosta further warned against the dangers of ignoring the plain language of the statute – from increased litigation to uncertainty for employers.

Double D Construction Group, Inc., 339 NLRB No. 48 (2003) – Concurring with his majority colleagues, Mr. Acosta expressed a strong view on the rights of undocumented immigrant workers.  Mr. Acosta explained that the Administrative Law Judge discredited an employee’s testimony because he had used a false Social Security number to apply for work, and concluded from that act that the employee might offer false testimony.  Mr. Acosta firmly rejected this view, explaining that undocumented workers are statutory employees entitled to the protections of the NLRA.  He stated that a blanket policy of discrediting any “once-undocumented worker, who to obtain work provides a false social security number,” was inconsistent with the Act and that “such an automatic sanction makes it exceedingly difficulty for the General Counsel to establish an unlawful discharge or other unfair labor practice directed against an undocumented worker.”  While Mr. Acosta acknowledged that providing a false social security number is relevant to a credibility determination, he warned that the NLRB’s “continued commitment to prosecuting unfair labor practices directed against undocumented workers requires an understanding of the workplace and life realities faced by these individuals.”

Comcast Cablevision-Taylor, 338 NLRB No. 166 (2003) – Concurring in a decision related to a representation case, Mr. Acosta used his platform to highlight “potential inconsistencies in Board case law.”  Mr. Acosta expressed concern that the Sixth Circuit had used a Board holding in a previous case to rule on enforcement issues, but that the Board had not considered whether the case itself, or some other related inconsistent precedent, remained good law.  Mr. Acosta encouraged the Board to reconcile its precedent so as to avoid inconsistent results.

While Mr. Acosta’s confirmation is not yet accomplished, Republicans and Democrats alike have characterized him as a longtime public servant with experience enforcing labor laws. This small sampling of his concurrences indicates that he values logical decision-making based on the plain language of the law, where appropriate, and that he considers the consistency of precedent to be of importance.  His concurring opinion in Double D Construction reveals that he considers the government as having a role in protecting the rights of undocumented workers.  If confirmed as Secretary of Labor, Mr. Acosta will – of course – not be responsible for enforcing the NLRA.  His concurrences as a Member of the NLRB, however, provide interesting insights into the Department of Labor he may soon run.

NLRB 2By: Marjorie C. Soto, Esq., Jeffrey A. Berman, Esq., and Mary Kay Klimesh, Esq.

Seyfarth Synopsis: Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) ask NLRB General Counsel Griffin to either immediately rescind his January 31 report regarding the purported rights of faculty, students and scholarship athletes, or “step aside as general counsel.”

Yesterday, we reported that Richard F. Griffith, Jr., the General Counsel of the National Labor Relations Board, issued a report titled “General Counsel’s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.” A copy of  yesterday’s Management Alert can be found here.

It did not take long for Griffin’s Report to catch the attention of Congress. Yesterday, Representative Virginia Foxx (R-NC), Chairwoman of the House Committee on Education and the Workforce, and Representative Tim Walberg (R-MI), Chairman of the House Subcommittee on Health, Employment, Labor, and Pensions, jointly issued a response to the Report, calling for Griffin to “rescind his memorandum immediately” or  “step aside as general counsel.”   In support of their request, the Representatives jointly stated that the “memorandum puts the interests of union leaders over America’s students, and it has the potential to create significant confusion at college campuses across the nation.”

Even if Griffin refuses to withdraw the Report, it reasonably can be anticipated that the General Counsel appointed by President Trump at the conclusion of Griffin’s appointment in November, or the soon-to-be Trump appointed Board majority, will revisit not only the Report but also the underlying decisions in Pacific Lutheran, Columbia and Northwestern.

NLRB 2On Thursday, January 26, 2017, the NLRB announced that President Trump named Board Member Philip A. Miscimarra to serve as Acting Chairman of the NLRB.  Miscimarra will replace former Chairman Mark Gaston Pearce, who will continue as a Board Member.  Pearce’s term expires on August 27, 2018.  Acting Chairman Miscimarra’s current term expires on December 16, 2017.

The Board currently has three members: Board Member Lauren McFerran being the third member.  Her term expires on December 16, 2019. Two Board Member seats are currently vacant.  President Trump gets to nominate these two members.  The two nominees must then be confirmed by the Senate.

Prior to the Board, Acting Chairman Miscimarra practiced labor and employment law as a partner with Morgan Lewis & Bockius LLP.   Prior to Morgan Lewis, Miscimarra was a partner at Seyfarth Shaw LLP.

 

By:  John J. Toner, Esq.

The Supreme Court today issued its much anticipated decision in NLRB v. Noel Canning, regarding the President’s authority to avoid the Senate’s confirmation procedure by granting recess appointments to fill  vacant positions. The decision specifically involved the legitimacy of the President’s recess appointment of Terence Flynn, Sharon Block, and Richard Griffin to be Members of the National Labor Relations Board. A unanimous Court found that those appointments were beyond the President’s authority and, therefore, unconstitutional.

As a result of the Court’s decision, NLRB decisions in which Block, Griffin, or Flynn participated will most likely be invalidated and will need to be reconsidered by the current Board, which already has a considerable backlog of pending cases and is devoting substantial efforts to issue the “quickie” election regulations. Among the decisions that the NLRB will have to revisit are those involving highly controversial issues such an employer’s ability to issue reasonable rules regarding employee behavior at work or to limit access to its facilities by off-duty employees; an employer’s obligation to continue dues deduction after expiration of the collective bargaining agreement; the duty to bargain discipline during first contract negotiations; confidentiality instructions to employees during employer investigations; and an employer’s obligation to provide a union with documents previously considered confidential.

In addition to the case decisions that now may be invalidated, any administrative actions in which Block, Flynn, or Griffin participated may also be invalid — including the appointments of Regional Directors and Administrative Law Judges. As a result, many decisions issued by these Regional Directors or Administrative Law Judges also may be invalid.

The total fallout from this important decision will not be known for some time and we will continue to monitor and advise you of recent developments. To be sure, however, no matter how extensive the repercussions ultimately extend, the decision is a tremendous victory for employers.

By: Anne D. Harris, Esq.

The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s grant of a temporary injunction brought by the NLRB under Section 10(j) of the National Labor Relations Act to prevent an operator of a group of long-term elder care facilities from engaging in alleged unfair labor practices.  See Kreisberg v. HealthBridge Mgmt. LLC, Case No. 12-4890 (Oct. 15, 2013). Notably, the Second Circuit declined to address the constitutional issue regarding President Obama’s recess appointments to the NLRB (that we have blogged about here and here) noting that when “a case may be resolved on other grounds, courts may decline to reach a constitutional question to avoid deciding constitutional issues needlessly.” Instead, the Second Circuit relied on authority granted to the Board’s General Counsel over a decade ago and concluded that the acting General Counsel’s delegation of authority to authorize such petitions remained intact regardless of the validity of the Board’s appointments. 

HealthBridge and the union representing its workers engaged in contentious  negotiations for a new collective bargaining agreement. Negotiations remained unsuccessful during the year-and-a-half of bargaining and resulted in a lockout of employees followed by a strike declared by the union. During this time period, HealthBridge implemented changes to employee wages, hours, and working conditions. The union filed unfair labor practice charges and the Acting General Counsel of the NLRB authorized a petition for injunctive relief under Section 10(j) of the Act, asking the federal district court to prevent HealthBridge from implementing the terms of its final contract offer pending resolution of unfair labor practice allegations. The district court granted the 10(j) petition finding reasonable cause to support the Board’s allegations that HealthBridge engaged in unfair labor practices. 

The Second Circuit rejected Healthbridge’s argument on appeal that the Board lacked a quorum to authorize a Section 10(j) petition based on two prior delegations of authority to the Board’s General Counsel in 2001 and 2002. Although HealthBridge argued that a 2011 delegation of authority was invalid based on the lack of a quorum, the Second Circuit emphasized that the 2002 delegation confirmed that existing delegations of authority remained in effect and delegated additional authority not included in the 2001 delegation. As such, these delegations of authority had no expiration date and were in effect regardless of the validity of the 2011 delegation. Additionally, the panel rejected the contention that a loss of quorum negated the grant of authority and held that it now “join[s] those of our sister Circuits that have concluded that the delegation of § 10(j) authority to the General Counsel at issue survives even when the Board subsequently lacks quorum.” 

The Second Circuit also shot down Healthbridge’s argument that the U.S. Supreme Court’s 2008 decision in Winter v. Natural Resources Defense Council, 555 U.S. 7, changed the standard for issuing a Section 10(j) injunction under the Act. The Court of Appeals concluded that Winter addressed the standard for preliminary injunctions in general, but did not address or alter the standard for issuing Section 10(j) injunctions.

This case underscores another court’s willingness to reach back to authority delegated by the Board more than a decade ago and find it to remain in effect and applicable despite the lack of a Board quorum and despite Noel Canning. Until the Supreme Court rules on the constitutional arguments raised in Noel Canning, such defenses should be carefully analyzed to determine whether the Board has acted on retained authority regardless of the validity of the January 2012 recess appointments.