More NLRB uncertainty created for labor lawyers

One of the most contentious years in the National Labor Relations Board’s history ended amid controversy, and now the New Year has begun with a brand new political hailstorm that could spell more confusion and uncertainty for labor attorneys.

When member Craig Becker’s term expired at the start of the year, it left the board with only two members: Chairman Mark G. Pearce and Brian Hayes. That put the board in peril; in 2010, the U.S. Supreme Court ruled in New Process Steel v. NLRB that the board does not have the statutory authority to act with fewer than three members.

Three nominees were pending before the Senate: Sharon Block, deputy assistant secretary for congressional affairs at the U.S. Department of Labor; Richard Griffin, general counsel for the International Union of Operating Engineers; and Terence F. Flynn, Hayes’ chief counsel at the NLRB.

But Republican members of the House and Senate, angered over recent NLRB rulemaking, kept both chambers of Congress in pro forma session over the holidays to prevent President Barack Obama from making recess appointments to the NLRB or other agencies.

Despite that, on Jan. 4 Obama announced recess appointments of all three members to the board, noting that White House counsel advised him that Congress was in recess despite the pro forma sessions.

Congressional Republicans and business groups accused Obama of unconstitutionally usurping Congress’s authority. GOP lawmakers say they are mulling a legal challenge to the appointments, while U.S. Chamber of Commerce president Thomas J. Donohue said the group is taking a wait-and-see approach, but are reserving the right to head to court later.

“We are not going to sue today because one has to see [what] the three new guys on the NLRB do,” Donohue told reporters  on Jan. 12.

On Jan. 13, the National Right to Work Foundation became the first group to file a challenge to the appointments in court (see sidebar on page 16).

Given that ongoing uncertainly over likely legal challenges to the new NLRB members’ authority, labor lawyers are still in the lurch in terms of their ability to advise clients.

“Right now, we can tell an employer that a certain [workplace policy] is OK, but at some point that could change,” said Howard M. Bloom, a partner in the Boston office of Jackson Lewis.

New election, posting rules fuel conflict

The prospect of a potentially powerless NLRB has been on the radar for months, since Senate Republicans threatened to block confirmation of Obama’s nominees, including GOP nominee Flynn.

Among the issues that have angered GOP lawmakers and business groups is a newly minted rule that will, according to the board, streamline the union election and appeal process.

Opponents say the rule hurts employers by making it too easy for workers to unionize, and too difficult for employers to convince workers not to.

Under the new rule, which was approved by the board on Nov. 30, the question of whether a particular election should be conducted will be decided by hearing officers at regional NLRB offices, who will have the authority to limit testimony to relevant issues and decide whether briefs will be submitted.

The rule also provides that appeals to the board will be consolidated in a single post-election review request rather than in multiple interlocutory reviews, allowing the election process to conclude more quickly.

The rule adopted by the board is a modified version of the original proposed rule, which spurred such division among NLRB members that the sole Republican, Hayes, threatened to quit before the board’s November meeting — a move that would have dropped the NLRB to only two active members, rendering it unable to act on the measure.

Hayes ultimately stayed on and voted against the rule.

Still, the new rule immediately divided lawmakers along political lines, with Sen. Tom Harkin, D-Iowa, calling the measure a way to “restore workers’ basic rights” and Sen. Mike Enzi, R-Wyo., labeling it a “union election ambush.”

Almost immediately, the U.S. Chamber of Commerce and other organizations sued to block implementation of the election rule, arguing that it would make it difficult for employers, particularly small businesses, to respond to union campaigns.

Randy Johnson, the chamber’s senior vice president of labor, immigration and employee benefits, called the rule an early holiday gift to unions.

“This rule has no conceivable purpose but to make it easier for unions to win elections,” Johnson said in a statement announcing the lawsuit. “While couched in technicalities, the purpose of this regulation is to cut off free speech rights to educate employees about the effects of unionization.”

The chamber also sued to block implementation of an NLRB rule requiring nearly every American employer to post rules in workplaces notifying employees of their rights under the National Labor Relations Act, including the right to form a union and collectively bargain.

That rule was originally set to go into effect Nov. 14, 2011, but due to the pending legal challenge, the board postponed the effective date to April 30 — the same day the new union election rule is currently set to take effect.

For lawyers, limbo and unanswered questions

The drama at the NLRB has already taken attorneys on a topsy-turvy ride, and now they are left in limbo.

Nelson D. Cary of Columbus, Ohio, noted that the board issued a flurry of rules and opinions in recent weeks in anticipation of a potential shutdown. “That had us pretty busy,” Cary said.

Bloom, of Boston’s Jackson Lewis, said the recent flood of opinions and rulemaking has gotten the attention of his clients.

“Clients are more interested in what they can do [to avoid problems] and what we see coming down the road,” he said, adding that his clients are particularly concerned about the new election rules.

At the same time, lawyers who have cases that are set to go before the NLRB on appeal are faced with a potential court ruling down the road that the president acted without authority in the recess appointments, and that could throw the current board’s authority to rule into question.

That prospect is causing headaches for lawyers and their clients.

“That puts you in a deep freeze in terms of your ability to navigate [cases] that might be subject to scrutiny before the board,” said William P. Barrett, an attorney in Raleigh, N.C.

But Bloom said that while the uncertainty in Washington is problematic, the majority of labor law practice involves regional offices, and that will not change.

“On a day-to-day basis, I don’t see it impacting my practice or my clients much,” he said. “Charges are going to get filed, and they are going to get investigated. The process is the same.”