Senate Confirms New Five-Member NLRB: What Just Happened and What’s Next?

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact

On the evening of July 30, the U.S. Senate confirmed all five pending nominations to the National Labor Relations Board (NLRB), giving the agency a fully operational complement of Board members for the first time in over a decade.

Meet the New Board Members

The new members and their terms are: Nancy Schiffer (D) for a term expiring on December 16, 2014; Harry I. Johnson, III (R) for a term expiring on August 27, 2015; Kent Hirozawa (D) for a term expiring on August 27, 2016; Philip A. Miscimarra (R) for a term expiring on December 16, 2017; and Chairman Mark Gaston Pearce (D) for a term expiring on August 27, 2018.

Board Members Schiffer and Hirozawa were confirmed by the identical, nearly party-line vote of 54-to-44, with two Senators not voting and only Republican Senator Lisa Murkowski (AK) crossing party lines to vote for confirmation. Chairman Pearce was confirmed by a vote of 59-to-38, with three Senators not voting. Republican Senators Lamar Alexander (TN), Saxby Chambliss (GA), Susan Collins (ME), Johnny Isakson (GA), John McCain (AZ), Rob Portman (OH), and Murkowski (AK) crossed party lines to vote in favor of confirmation. Board Members Miscimarra and Johnson were confirmed by voice vote.

Schiffer is a former associate general counsel with the AFL-CIO and earlier was a staff lawyer with the United Auto Workers and the NLRB. Hirozawa was chief counsel to Board Chairman Pearce after spending most of his career as a union lawyer. Pearce, of course, was a long-time union lawyer in private practice in Buffalo, New York, while Miscimarra and Johnson both practiced with management-side labor law firms in Chicago and Los Angeles, respectively.

What Happened?

Among the group of Republican Senators who voted for the confirmation of Chairman Pearce were the Senators, led by Senator McCain, who negotiated a “deal” not to filibuster the Board nominations and to allow a simple majority vote for confirmation. The “deal” involved a majority vote for confirmation in exchange for: (1) an agreement by the White House to withdraw the nominations of recess appointees Richard Griffin (D) and Sharon Block (D); and (2) an agreement by Majority Leader Harry Reid (NV) to drop the threat of a “nuclear option” to advance presidential nominations. Senate Republicans strongly opposed and had threatened to filibuster the nominations of Griffin and Block who were both serving recess appointments at the Board—which three federal courts of appeals ruled were unconstitutional. Their continued service meant that while the Supreme Court of the United States reviewed the D.C. Circuit Court of Appeals’ decision in Noel Canning v. NLRB on the constitutionality of their recess appointments, each decision Griffin and Block rendered was invalid for lack of a legitimately-confirmed or appointed quorum of three members required to decide cases.

The “nuclear option” would have eliminated filibusters on executive branch nominations and, Senate Republicans feared, in the future on judicial nominations and perhaps even on legislation as well. The threat to eliminate the filibuster was termed the “nuclear option” because Majority Leader Reid threatened to blow up the long-standing requirement for 67 votes to change Senate rules and instead allow rules to be changed by a simple majority vote—what Republican Minority Leader Mitch McConnell (KY) referred to as “breaking the rules in order to change the rules.”

What’s Next at the NLRB?

So what’s next? Business can count on Chairman Pearce revisiting the Board’s representation  election (or “ambush election”) rule, which he promised to do when he was forced to drop some of the most objectionable provisions from the rule as originally proposed in order to issue the rule before then-Member Craig Becker’s recess term expired thus losing a quorum.

Since then, the rule has been blocked by the U.S. District Court for the District of Columbia. Chairman Pearce has promised to “keep his eyes on the prize” for when he had a majority of confirmed Board members to restore the original rule. Some predict that the new ambush election rule will be even more extreme, dramatically reducing the time employers have to fully inform employees regarding unionization before a union representation election is held.

Employers also should expect the issuance of several controversial decisions pending before the Board, including an expansion of Specialty Healthcare to rubber stamp a union’s petitioned-for bargaining units of multiple small, single job classifications unless the employer can overcome the nearly impossible hurdle of proving that other employees have an “overwhelming” community of interest—which the Board describes as nearly a complete overlap of job duties and interests with the petitioned-for unit. By, in effect, picking their voters to the extent of their ability to organize, unions obviously will be able to win far more elections.

Non-union employers should also expect a continued expansion of the concept of “protected concerted activity,” which the Board applies to union and non-union workplaces through policies, work rules, handbooks, employment arbitration agreements, and even at-will employment policies, which may “chill” employees’ rights to engage in concerted activity.

Of course, the newly-confirmed Board may be slowed down depending on the Supreme Court’s ruling in Noel Canning on the validity of the “recess” Board’s prior decisions. The new Board may be forced to spend considerable time recalling and reconsidering the more than 1,000 decisions issued by the previous “recess” Board—although the new Board majority will be able to “rubber stamp” the 30-40 most problematic decisions fairly quickly. Either way, do not expect many of those decisions to change. However, the Board’s new members will be forced to reconsider them under de novo review.

Finally, there is the issue of the “persuader activity” rule, requiring public reporting and disclosure of confidential legal and labor relations “advice” from law firms and consultants during union organizing campaigns and collective bargaining under the Labor-Management Reporting and Disclosure Act of 1959. If, in November, as forecast, the U.S. Department of Labor (DOL) issues a final “persuader activity” rule, employers can expect the NLRB to work hand-in-glove with the DOL in identifying violations of the public reporting and disclosure requirements for employers and outside parties.

The effect would be to make it more difficult for employers to retain outside counsel—which would be especially damaging for small businesses without in-house labor counsel. Uncounseled employers are more likely to commit unfair labor practices and, as a result, could possibly face bargaining orders from the NLRB to recognize and bargain with a union without a secret ballot election, but instead based purely on signed union authorization cards. In other words, implementing “back door” card check without the need for Congress to pass the so-called “Employee Free Choice Act.”

Stay tuned.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

Written by:

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Contact
more
less

Ogletree, Deakins, Nash, Smoak & Stewart, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.