Five-Member Board Called ‘Ready to Go' As NLRB Transitions to New General Counsel

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By Lawrence E. Dubé  

Nov. 12 -- For the first time in a decade, the National Labor Relations Board has a full complement of five Senate-confirmed members, and Chairman Mark Gaston Pearce (D) told lawyers attending the annual conference of the American Bar Association's Section of Labor and Employment Law in New Orleans Nov. 8, “We are all in place and we're ready to go.”

Pearce was joined at the conference by members Kent Y. Hirozawa (D), Harry I. Johnson (R), Philip A. Miscimarra (R), and Nancy J. Schiffer (D). The board members said they will approach cases under the National Labor Relations Act from different perspectives and professional backgrounds, but all said they already have launched a working relationship marked by cooperation and mutual respect.

Richard F. Griffin (D), who was sworn in Monday as the NLRB's general counsel, spoke to the ABA group along with Lafe E. Solomon (D), who was acting general counsel for more than three years. Solomon told the audience he had “a remarkable ride” as the agency's chief lawyer, and both Pearce and Griffin praised his contributions to the agency he first joined in 1972.

Senate Confirmed Agency Leaders

Pearce reviewed events over the year, which saw the U.S. Court of Appeals for the District of Columbia Circuit holding in January in NLRB v. Noel Canning Division of Noel Corp., 705 F.3d 490, 194 LRRM 3089 (D.C. Cir. 2013), that President Obama's January 2012 recess appointments were constitutionally invalid. Griffin, along with Sharon Block (D) and Terence F. Flynn (R), received the recess appointments; Flynn resigned from the board in July 2012, in an action unrelated to the recess appointment issue.

Pearce said an agreement eventually was reached to end a Senate impasse over NLRB nominations when the White House withdrew the Block and Griffin nominations. Obama nominated Pearce for a second term, and nominated Hirozawa, Johnson, Miscimarra and Schiffer as new members. The president also withdrew a nomination of Solomon to a four-year term as general counsel, and nominated Griffin for the position. The board members were confirmed by the Senate July 30 (146 DLR A-1, 7/30/13), and Griffin was confirmed Oct. 29 (210 DLR A-13, 10/29/13).

Board Members Report Good Working Relationship

All of the new board members said they have gotten off to a cordial start, with Schiffer, a former AFL-CIO associate general counsel, saying the recent government shutdown left the five board members working at the NLRB headquarters without their staffs in an unusually close working relationship. The board members continued to hold agendas, or case-handling conferences, during the shutdown and Schiffer said they got to know each other during conferences that included “very frank dialogue” about some of the cases pending before the NLRB.

Miscimarra, who represented management in private practice before coming to the NLRB, said his high regard for the board has been reinforced by seeing the open discussion of substantive legal issues that takes place in board agendas. Board members consider cases carefully and ask each other “penetrating” questions, Miscimarra said, adding that board members “do not just do what feels good in the moment” when they decide cases.


All of the new board members said they have gotten off to a cordial start, with Schiffer, a former AFL-CIO associate general counsel, saying the recent government shutdown left the five board members working at the NLRB headquarters without their staffs in an unusually close working relationship.  

Johnson, who also represented employers before becoming a board member, said the board has been both productive and thorough in handling cases. He also told the audience that board members don't limit themselves to reading briefs, but have access to the full record made in each case facing the board, and they are able to retrieve transcripts and exhibits.

Johnson said the enactment of the NLRA allows a resolution of labor disputes without the disruptions, including violence, that preceded the act. Board members now function as “gardeners and guardians” who are responsible for tending to the growth of the act's general principles, he said.

Hirozawa, a former union lawyer who most recently served as Pearce's chief counsel, said the board's challenge is to adapt legislation originally passed in the 1930s to the modern workplace. Congress used very broad language in the NLRA, Hirozawa said, and lawmakers established the NLRB to apply the act's general principles and to “deal with variations across industries and across time.”

Election Rule Changes Under Discussion

Hirozawa confirmed that the NLRB continues to consider changes to its regulations on representation case procedures.

In December 2011, Pearce joined with then-Member Craig Becker (D), over a dissent by then-Member Brian E. Hayes (R), to give final approval to some, but not all, of a set of proposed amendments (245 DLR AA-1, 12/21/11).

The U.S. District Court for the District of Columbia held the that amendments were not properly adopted (Chamber of Commerce v. NLRB, 879 F. Supp. 2d 18, 193 LRRM 2316 (D.D.C. 2012); 93 DLR AA-1, 5/14/12), and the board suspended implementation of the adopted rule changes.

The NLRB's appeal of the district court ruling remains pending in the U.S. Court of Appeals for the District of Columbia Circuit (No. 12-5250), which has deferred action in the case because of the quorum controversy pending in Noel Canning (34 DLR A-19, 2/20/13).

Hirozawa noted that the NLRB's original notice of proposed rulemaking, encompassing both the proposed changes which were adopted in December 2011 and those which were not approved, remains pending.

Hirozawa said board members have received briefings on the rulemaking issue, and have had “some discussion” on the issue of whether to go forward with the rulemaking, and what to do with the pending litigation over representation case rule changes.

Solomon, Griffin Discuss Noel Canning

Solomon gave participants an update on the impact of the Noel Canning case, which will be argued before the Supreme Court Jan. 13, 2014.

There are 86 cases pending in the D.C. Circuit in which validity of board decisions depends on whether the 2012 recess appointments of Block, Flynn and Griffin were constitutionally valid. The appeals court has held the cases in abeyance because of Noel Canning and the unresolved legal dispute over the appointments. Solomon said there are about 50 similar cases now pending in other federal appellate courts.

Solomon said there were 317 published and 520 unpublished board decisions decided by board panels, including the recess appointees. If the Supreme Court finds the recess appointments were invalid, that number represents the “universe” of cases that would be affected.

The former acting general counsel said he is confident that the NLRB will win the Noel Canning case, but he said the agency will manage the aftermath even if the Supreme Court rules against the government.

When the Supreme Court held in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 188 LRRM 2833 (2010) (116 DLR AA-1, 6/18/10), that the authority of the five-seat board could not be delegated to a panel with fewer than three members, the board faced the possibility that it would have to rehear or reconsider approximately 600 decisions that were decided during a period when the board had only two members.

In fact, Solomon observed, only about 100 cases had to be reheard after New Process; the remainder had been settled or resolved or did not require further board action.

Griffin said deferring appellate court action on dozens of unfair labor practice cases means that if the board wins Noel Canning, cases stalled in the courts would have to be resolved on their merits. Some of the cases would undoubtedly “go away” if the NLRB quorum issue is resolved in favor of the board, Griffin said. However, he added the NLRA would become a “full employment act” for appellate court lawyers scrambling to deal with a ruling in the agency's favor.

Injunction Petitions, Guidance Memos to Continue

Griffin said he intends to continue programs and activities that were successes during Solomon's tenure, including petitioning federal district courts for injunctive relief under Section 10(j) of the NLRA, and providing guidance to practitioners and the public with guidance memoranda in appropriate areas of the law.

The new general counsel stressed Specialty Healthcare & Rehabilitation Center, 357 N.L.R.B. No. 83, 191 LRRM 1137 (2011) (169 DLR AA-1, 8/31/11) as a case that has been given the misnomer of a “micro-unit” ruling that enables unions to organize employees in smaller groups than ever before.

As early as the 1940s, Griffin said, NLRB approved bargaining units consisting of as few as two employees where appropriate. Griffin said he is happy to discuss whether applying Specialty Healthcare in a particular case would lead to a “fractured” workforce, but he said it is inaccurate to describe the case as establishing new authority for the creation of micro-units.

Griffin said he anticipates that after the board issues more decisions on bargaining unit issues, his office will put out some form of written guidance on representation cases.

 

To contact the reporter on this story: Lawrence E. Dube in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com