Thursday, January 5, 2012

Holidays Were No Vacation At NLRB

Happy New Year!  The National Labor Relations Board was very busy at the end of the year, despite the holiday season.  And judging from the Board's gift to employers (in the form of a rule for expedited union elections), it appears the Board believes that employers have been naughty, not nice.  Here is a brief recap of what has been happening at the Board while many were enjoying egg nog and a warm fire.

On December 21, 2011, the Board approved on a 2-1 vote, a sweeping new rule changing its election procedures.  According to the Board, the new election procedures will "reduce unnecessary litigation and delays."  Chairman Mark Gaston Pearce and Member Craig Becker, both Democrats, voted in favor of the rule.  Republican Member Brian Hayes dissented.  The final rule was published in the December 22, 2011 Federal Register, just before the Christmas weekend.  The Board was pressured to act before the end of 2011 when Member Becker's recess appointment ended and the Board lost its 3-member quorum necessary to take official actions.  The expedited election procedures will become effective on April 30, 2012.  The new procedures are expected to make it easier for unions to organize employees and will representation elections.

Meanwhile, the Senate attempted to avoid a recess that would permit the Obama Administration from making further recess appointments to the Board.  Undeterred, on January 4, 2012, President Obama announced three recess appoints to the Board: two Democrats and one Republican. Democrat Sharon Block was serving as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor.  Democrat Richard Griffin was most recently employed as General Counsel for International Union of Operating Engineers (IUOE). According to the Board's press release, Griffin also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.  The Republican appointee, Terrence F. Flynn currently serves as Chief Counsel to Republican Board Member Brian Hayes.

These recess appointments are sure to face a legal as critics of the appointments argue that they violate the advice and consent clause of the U.S. Constitution because the Senate was not in recess when the appointments were made.  The Republican contingent in the Senate made it clear that they would not approve President Obama's appointments and took steps to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, which limited any recess to two days.  Traditionally, the President has not made recess appointments during recesses of less than ten days. If the recess appointments stand, the Board could operate with a quorum through the remainder of 2012.

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