Senate ready to take up NLRB nominations

July 25, 2013 0 COMMENTS

by Tammy Binford

The full Senate is expected to vote on all five nominations to the National Labor Relations Board (NLRB) within the next few days, a move that could give the NLRB its full membership confirmed by the Senate for the first time in more than a decade.

The Senate Committee on Health, Education, Labor, and Pensions held a hearing on the nominations of Democrats Kent Hirozawa and Nancy Schiffer on July 23, and on July 24, it voted 13-9 to send their nominations to the full Senate.

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High court agrees to hear NLRB recess appointments case

June 24, 2013 0 COMMENTS

The U.S. Supreme Court has agreed to hear an appeal in Noel Canning v. NLRB.

In the Noel Canning case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that three of President Barack Obama’s so-called recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Without the three appointees, the Board lacked a necessary quorum to act. Thus, the D.C. Circuit’s ruling raised questions about the validity of hundreds of NLRB actions, including union-friendly decisions on social media, confidentiality rules, and off-duty employees’ access to workplaces.

The U.S. Constitution provides that the Senate must consent to the president’s nominees to federal agencies. The Constitution gives the president the authority to fill vacancies that “may happen” during the Senate’s recess that “shall expire at the end of the next session.”

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Another NLRB recess appointment ruled invalid

May 20, 2013 0 COMMENTS

Nearly four months after an appeals court ruled that recess appointments to the National Labor Relations Board (NLRB) made in 2012 were invalid, another appellate court has ruled a previous recess appointment unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled May 16 in NLRB v. New Vista Nursing & Rehab. that President Barack Obama’s 2010 recess appointment of Craig Becker to the NLRB was invalid. Becker, a Democrat, served on the Board from April 5, 2010, through January 3, 2012.

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Obama urges swift confirmation of new NLRB nominees

April 09, 2013 0 COMMENTS

The National Labor Relations Board (NLRB), crippled by a January court ruling against two recess appointees, has the potential to get back to full strength if the Senate confirms nominations President Barack Obama made April 9. Previous attempts to fill the NLRB have failed over congressional opposition to Board actions and Obama’s nominees.

On April 9, Obama nominated Republicans Harry I. Johnson, III, and Philip A. Miscimarra along with Democrat Mark Gaston Pearce. Pearce is the current NLRB chair. His term is set to expire August 27. Johnson and Miscimarra are both management-side employment attorneys.

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NLRB wants Supreme Court review of recess appointments decision

March 14, 2013 0 COMMENTS

The National Labor Relations Board (NLRB) announced on March 12 it will ask the U.S. Supreme Court to review an appeals court decision that says the appointment of two Board members is invalid.

In consultation with the Justice Department, the NLRB said it intends to file a petition by the April 25 deadline for Supreme Court review.

On January 25, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in Noel Canning v. NLRB that President Barack Obama acted unconstitutionally when he made three recess appointments to the Board on January 4, 2012.

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Court ruling puts NLRB future in jeopardy

January 25, 2013 0 COMMENTS

A court ruling has put the brakes on the National Labor Relations Board (NLRB) and possibly invalidated decisions the Board has made for the last year.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on January 25 that President Barack Obama acted unconstitutionally when he made three recess appointments to the NLRB on January 4, 2012.

The court’s ruling is seen as good news for employers because it seems to thwart what many in the business community see as the NLRB trying to rewrite labor law to benefit unions.

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NLRB ruling ends proemployer automatic exemption

December 31, 2012 0 COMMENTS

A recent ruling from the National Labor Relations Board (NLRB) means employers are no longer automatically exempted when unions ask them to turn over witness statements related to employee discipline.

Now, the employer’s confidentiality interest must be balanced with the union’s need for information. The American Baptist Homes of the West d/b/a Piedmont Gardens case overruled the Board’s 1978 decision in Anheuser-Busch, Inc., which established a categorical exemption for witness statements in such cases.

In the Piedmont case, the NLRB’s acting general counsel and the charging party argued that the bright-line rule established in 1978 was “inappropriate.” The Board agreed, finding it should instead apply a balancing test articulated by the U.S. Supreme Court’s decision in Detroit Edison Co. v. NLRB, which was decided in 1979.

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