NLRB 2013 Year In Review And 2014 Initiatives

David J. Santeusanio is a Partner and Brian M. Doyle is an Associate in our Boston office.

HIGHLIGHTS:

Key labor law developments of 2013 are reviewed here for employers to consider as they look ahead to National Labor Relations Board (NLRB) developments in 2014. Employers should prepare to respond to the NLRB's continued scrutiny of employer policies and practices concerning social media, confidential information and class action waivers, and new NLRB initiatives such as the reissuance of the "quickie election" rules. After an active 2013, the National Labor Relations Board (NLRB or Board) will continue to advance its agenda in 2014, including resuming its scrutiny of employer policies and practices. This alert highlights the major labor law developments of 2013 – including Board decisions regarding social media and confidentiality provisions – and identifies certain NLRB initiatives for the coming year, including the Board's recent decision to reintroduce expedited union election rules. We offer practical guidance to help employers navigate potential National Labor Relations Act (NLRA) issues.

(For a review of the Board's activity in 2012, see a previous Holland & Knight alert, " NLRB's Actions in 2012 Highlight Critical Labor Issues for Nonunion Employers").

Composition of the Board and New General Counsel

In 2013, the NLRB – for the first time since 2004 – became a fully constituted five-member Board, with all members confirmed by the Senate. Three of the five Board members have a background working for or on behalf of unions. The Senate confirmed the Board's new members in August 2013:

Kent Hirozawa is the former chief counsel to NLRB Chairman Mark Gaston Pearce. Member Hirozawa began his legal career as a field attorney in the Board's New York, New York Region (Region 2) and then represented unions and employees for more than 20 years in private practice. Nancy Schiffer most recently was the former associate general counsel at the AFL-CIO. Before her time with the AFL-CIO, Member Schiffer was Deputy General Counsel with the United Auto Workers. She began her career as a field attorney in the Detroit, Michigan Region (Region 7) of the Board before leaving for private practice. Philip A. Miscimarra and Harry I. Johnson III are former labor attorneys who have been in private practice representing management and employers. Mark Gaston Pearce is the fifth member of the Board and current Chairman. Chairman Pearce was sworn in to a second term on August 23, 2013 (his term expires on August 27, 2018). He is a former Board attorney in the Buffalo, New York Region (Region 3), and was later in private practice representing unions and employees. President Obama nominated him to the Board in 2009, and he began his term in April 2010.

The NLRB's Office of the General Counsel is separate and independent from the five-member Board. Its responsibilities include the prosecution of unfair labor practice cases. In November 2013, Richard F. Griffin, Jr., was sworn in as the NLRB's new general counsel for a four-year term. Before assuming this role, Mr. Griffin served as a Board member between January 2013 and August 2013. He previously served as general counsel for the International Union of Operating Engineers.

The Forthcoming Noel Canning Decision

The Noel Canning case, which addresses whether President Obama had the power to appoint three members to the Board in January 2012 during a Senate "recess," will be decided by the U.S. Supreme Court. The Court's decision has the potential to create uncertainty as to the validity of perhaps hundreds of Board decisions.

In January 2013, the Court of Appeals for the D.C. Circuit issued its decision in Noel Canning v. NLRB, ruling that President Obama's "recess appointments" to the NLRB were unconstitutional. See 705 F.3d 490 (D.C. Cir. 2013). The case began when the Board issued an adverse decision to Noel Canning Corp., a canning and bottling company, in an unfair labor practices dispute. The company appealed. Arguing that the Board lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members; the Board was then comprised of three members appointed by the president under the Recess Appointments Clause of the U.S. Constitution.

The Court of Appeals concluded that the three "recess" appointments made by President Obama on January 4, 2012, were "invalid from their inception" because the President exceeded the scope of his authority under the Recess Appointments Clause. The court's holding was supported by two grounds. First, it held that recess appointments may only be made during the recess between each Session of Congress (an "inter-session" recess, which happens only once per year), rather than on a break in Congress that occurs while Congress is still in session (an "intra-session" recess, which occurs rather frequently, such as during holidays). Second, it held that recess appointments can be made to fill only those positions that become vacant during the recess, such that the president cannot make recess appointments to fill preexisting or long-standing vacancies.

The NLRB appealed the decision to the Supreme Court, which heard oral argument on January 13, 2014, and will likely issue a decision before its term ends in June 2014.

If the Supreme Court concludes that the Board did not have authority to act during the relevant period, it is not certain what affect that ruling will have on the Board's decisions issued after January 2012. The full impact of the ruling will depend, in part, on whether the Court provides guidance to the Board concerning how to address decisions and actions that were taken during the period at issue. If the Court's decision invalidates prior Board actions, the Board will need to address not only the decisions it issued, but also the appointment of regional directors and the promulgation of new rules. Depending on the ruling and any guidance offered by the Supreme Court, the Board might assert the position that a Noel...