Labor Law Pending NLRB shutdown means more uncertainty for labor lawyers

By Kimberly Atkins The Daily Record Newswire BOSTON -- As one of the most contentious years in the National Labor Relations Board's history ends amid even more controversy, the new year brings new problems for the agency as well as labor lawyers. Unless the Senate approves at least one of three nominees to fill vacancies on the Board -- or President Barack Obama is able to make at least one recess appointment in the Senate's absence -- the NLRB will fall below its statutory quorum in 2012, rendering it unable to issue opinions or engage in rulemaking. For labor attorneys, that looming uncertainty is making the already difficult task of advising clients even tougher. "Certainly, there are some areas where we really aren't certain how the Board may rule [in the future], and we can only guess where the Board will come down," said Howard M. Bloom, a partner in the Boston office of Jackson Lewis. "Right now we can tell an employer that a certain [workplace policy] is okay, but at some point that could change." The new year brings the expiration of NLRB member Craig Becker's term, leaving the Board with only two members: Chairman Mark G. Pearce and Brian Hayes. Earlier in December, Obama nominated two Democrats to the Board: Sharon Block, who is currently Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, and Richard Griffin, general counsel for International Union of Operating Engineers. In January 2011, Obama nominated Republican Terence F. Flynn, who currently serves as Hayes' chief counsel at the NLRB, to the Board. The Senate has yet to act on Flynn's nomination. But recent controversial actions by the Board, including the enactment of a new rule aimed at speeding up the process of unionizing, have angered business groups and Republican lawmakers, who are keeping both chambers of Congress in pro forma session over the holidays to prevent Obama from making recess appointments to the NLRB or other agencies. Since Senate action on any of the three current nominees is unlikely, and because the U.S. Supreme Court ruled in the 2010 decision New Process Steel v. NLRB that the Board does not have the statutory authority to act with fewer than three members, the agency will begin the new year without the power to take up case appeals or engage in rulemaking. (The hearing officers and regional directors at the NLRB's regional offices will continue to adjudicate disputes.) "That puts you in a deep freeze in terms of your ability to navigate [cases] that might be subject to scrutiny before the Board," said William P. Barrett, a partner in the Raleigh, N.C., office of Williams Mullen. New election, posting rules fuel conflict The prospect of a powerless NLRB has been on the radar for months, since Senate Republicans, angered by the Board's recent actions and rulemaking, have threatened to block any of Obama's nominees from confirmation, including GOP nominee Flynn. Among the things that have angered GOP lawmakers and business groups is a newly minted rule that will, according to the Board, streamline the union election and appeal process. Opponents say the rule hurts employers by making it too easy for workers to unionize, and too difficult for employers to convince workers not to. Under the new rule, the question of whether a particular election should be conducted will be decided by hearing officers at regional NLRB offices, who will have the authority to limit testimony to relevant issues and decide whether briefs will be submitted. The rule also provides that appeals to the Board will be consolidated in a single post-election review request rather than in multiple interlocutory reviews, allowing the election process to conclude more quickly. The rule adopted by the Board is a modified version of the original proposed rule, which spurred such division among NLRB members that the sole Republican, Hayes, threatened to quit before the Board's November meeting -- a move that would have dropped the NLRB to only two active members, rendering it unable to act on the measure. Hayes ultimately stayed on and voted against the rule. Still, the new rule immediately divided lawmakers along political lines, with Sen. Tom Harkin, D-Iowa, calling the measure a way to "restore workers' basic rights." The rule is "an important step toward ensuring that every American worker has the same right that powerful CEOs take for granted - the right to negotiate the terms of their employment with an enforceable contract," said Harkin, who chairs the Senate Committee on Health, Education, Labor and Pensions, in a statement. But Sen. Mike Enzi, R-Wyo., called the measure a "union election ambush." "The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law," Enzi said in a statement. Almost immediately, the U.S. Chamber of Commerce and other organizations sued to block implementation of the election rule, arguing that it would make it difficult for employers, particularly small businesses, to respond to union campaigns. Randy Johnson, the Chamber's senior vice president of Labor, Immigration and Employee Benefits, called the rule an early holiday gift to unions. "This rule has no conceivable purpose but to make it easier for unions to win elections," Johnson said in a statement announcing the lawsuit. "While couched in technicalities, the purpose of this regulation is to cut off free speech rights to educate employees about the effects of unionization. The elimination of these rights has long been on the wish list of organized labor and the Board has dutifully granted that wish today." The Chamber also sued to block implementation of an NLRB rule requiring nearly every American employer to post rules in workplaces notifying employees of their rights under the National Labor Relations Act, including the right to form a union and collectively bargain. That rule was originally set to go into effect Nov. 14, but due to the pending legal challenge the Board postponed the effective date to April 30, 2012 -- the same day the new union election rule is currently set to take effect. For lawyers, limbo and unanswered questions The drama at the NLRB has already taken lawyers on a topsy-turvy ride, and now they are left in limbo with more questions than answers. Nelson D. Cary, a partner in the Columbus, Ohio, office of Vorys, Sater, Seymour and Pease, noted that the Board issued a flurry of rules and opinions in recent weeks in anticipation of the shutdown. "That has us pretty busy," Cary said. Bloom said the recent flood of opinions and rulemaking has gotten the attention of his clients. "Clients are more interested in what they can do [to avoid problems] and what we see coming down the road," said Bloom, adding that his clients are particularly concerned about the new election rules. At the same time, the appeals process before the Board, which is already slow, will grind to a complete halt with the Board out of operation, causing a headache for lawyers and their clients. "There is one case that has been pending for more than a year," Cary said. "Unless we get a decision in the next couple of days, it is not going to happen, potentially, until after the next presidential election, unless members of the Senate work out their differences" and confirm a nominee. Bloom noted that while the uncertainty in Washington is problematic, the majority of labor law practice involves regional offices, and that won't change. "On a day-to-day basis, I don't see it impacting my practice or my clients much," he said. "Charges are going to get filed, and they are going to get investigated. The process is the same." Published: Tue, Jan 3, 2012