Signaling that reversal of two employer-friendly precedents of the George W. Bush-era NLRB is a serious possibility, the NLRB released a series of split decisions granting review over two groupings of cases concerning union recognition. In a series of 3-2 decisions dated August 27, but released on August 31, the full Board opened the door to revisiting two key precedents of the Bush-era NLRB:  Dana Corp., 351 NLRB No. 298 (2007) and MV Transportation, 337 NLRB No. 129 (2002), which themselves reshaped the recognition bar doctrine and the successor bar doctrine, respectively.

In its Dana Corp. decision, the then-majority Republican Board determined that under the “recognition-bar” doctrine, employees possessed a 45-day window to file a petition for an election or decertification after being notified that the employer has voluntarily recognized a union based on a union’s showing of majority support through union-authorization cards signed by employees (i.e., “card-check”). This represented a departure from a 1960s-era precedent that limited challenges after voluntary recognition for a reasonable period of time.

In Dana Corp., the Board held that a petition for a formal Board election is barred only where (1) unit employees have been notified via a Board-authorized posting of the employer’s recognition of the union and have been notified of their right to file decertification petitions or to support petitions of rival unions, and (2) no valid petition is filed within 45 days from the date of notice.  It is possible that the current majority Democratic Board would seek to return to the pre-2007 standard.

In its MV Transportation decision, the then-majority Republican Board held that, a rival union, the successor employer, or the employees themselves may challenge an incumbent union’s majority status in successorship situations. Under this decision, which overturned a Clinton-era NLRB precedent, St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), the majority status of the incumbent union in a successorship situation is tenuous, receiving nothing more than a rebuttable presumption going forward.  The majority Democratic Board could return to the St. Elizabeth Manor, Inc. standard, in which employees of a newly-acquired unionized employer could not seek to decertify the union until after “a reasonable period of time for bargaining” with the new employer has passed.

Democratic Members Craig Becker and Mark Pearce, and Chairman Wilma Liebman voted in favor of the decisions to review, which were issued over the vigorous dissents of Republican Members Peter Schaumber (on the final day of his term) and Brian Hayes. In advance of its review, the NLRB has invited interested parties to file amicus briefs to address both lines of cases.

After eight years of service on the NLRB, including a year as its chairman, Member Peter C. Schaumber left office upon the expiration of his second term on August 27, 2010.

Confirmed to the NLRB as a Republican appointee of President Bush in 2002, and reconfirmed for a second term in 2005, Schaumber, a Washington, D.C. labor arbitrator, served as chairman of the panel from March 2008 until January 2009. His term was notable for the prolonged 27-month period in which he served on a depleted two-member Board with Democrat Wilma B. Liebman, who succeeded him as chairman. The roughly 600 decisions issued by the two-member Board were invalidated by the Supreme Court in June 2010 in New Process Steel LP v. NLRB.  Schaumber, along with Liebman and President Obama’s three recent NLRB appointments, have begun to review and resolve these decisions.

Schaumber’s departure reduces the Board’s composition to four members, and leaves Member Brian Hayes as the sole remaining Republican Board member. 

In a July 1, 2010 press release, in response to the Supreme Court’s June 17 decision in New Process Steel v. NLRB, the NLRB announced that it will seek to review 96 cases currently pending in the federal appellate courts that had been issued by a two-member Board.  The Supreme Court’s decision invalidated nearly 600 decisions issued while the Board was operating with only two members.

The Board is seeking remand of the cases that were pending at the time of the New Process Steel decision - 6 cases in the Supreme Court and 90 cases in federal courts of appeal - and will consider each before a three-member panel comprised of Chairman Wilma Liebman and Member Peter Schaumber (who made up the two-member panel that initially ruled on each case), as well as a third member chosen at random from among Republican member Brian Hayes and Democrat members Mark Pearce and Craig Becker. Consistent with Board practice, the two members not selected to preside over a particular case may nonetheless elect to participate in the case.

With the June 30, 2010 swearing-in of Hayes, the Board has now been restored to its full compliment of five members.  Members Hayes and Pearce were confirmed on June 22 by the Senate.  Becker, who along with Member Pearce received a recess appointment in March 2010, has not been confirmed for a full term and will serve until the Senate adjourns its 2011 session.

It remains uncertain whether or how the Board will address the approximately 500 decisions of the two-member panel which were not challenged in the federal courts.

On June 22, 2010, the Senate, by voice vote, approved Mark G. Pearce (D) and Brian E. Hayes (R) for full terms as members of the NLRB, along with 63 other of President Obama’s stalled nominees. The deal followed a year-long impasse over the nomination of union attorney Craig Becker (D), who was initially nominated to the Board by President Obama in July 2009, along with Pearce and Hayes.

Becker, who, along with Pearce, was provided a recess appointment by President Obama in March 2010, was excluded from the package of 65 nominees after Senate Minority Leader Mitch McConnell (R-KY) and Senate Republicans raised objections to his inclusion. Pro-labor Senate Democrats initially balked at Becker’s exclusion, but eventually relented to the compromise package.

Becker’s nomination previously stalled in the Senate after opposition by Senate Republicans and business groups. His nomination for a full term on the Board is still pending, but his exclusion from the compromise likely ends any chance of overcoming a Republican-led filibuster to that nomination.

Pearce, a labor lawyer in private practice in Buffalo, New York, had not drawn significant opposition, but his nomination had been held up by the impasse over Becker’s nomination.  Hayes, a Republican Senate staffer whose nomination has been pending since July 2009, did not receive a recess appointment.

The compromise follows last week’s Supreme Court decision in New Process Steel L.P. v. NLRB, striking down hundreds decisions by the depleted two-member Board. The confirmations of Pearce and Hayes, along with the recess appointment of Becker, returns the Board to its full compliment of five members.

The terms of Hayes and Pearce run until Dec. 16, 2012 and Aug. 27, 2013, respectively. Becker’s recess appointment expires when the Senate adjourns its 2011 session.

On June 17, 2010, in a 5-4 decision, the Supreme Court declared that the National Labor Relations Board lacked the statutory authority to issue orders once its membership fell to two members in January 2008. The Board operated with two members until March 2010, when President Obama made two recess appointments. A summary of the Court’s opinion in New Process Steel, LP v. NLRB is available at SCOTUSblog.

In a press release, the current Board defended its effort under “difficult circumstances” to delegate the Board’s powers to a two-member quorum to prevent a “Board shut-down,” but stated it “will now do [its] best to rectify the situation in accordance with the Supreme Court’s decision.” The Board indicated that the issue had been raised in five other cases pending before the Supreme Court and 69 cases pending before the Courts of Appeal. Expecting these cases to be remanded to the Board, “[t]he now-four member Board will decide the appropriate means for further considering and resolving them.” The sole Republican member’s term expires in August.

The Supreme Court gave no guidance as to how the Board should proceed, but noted that “[i]f Congress wishes to allow the Board to decide cases only with two members, it can easily do so.” While Congress could legislatively overrule the Supreme Court, as it did in passing the Lilly Ledbetter Fair Pay Act in 2009 to overrule Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), it is not clear whether there is the time or the votes for such action. Any legislative fix is likely complicated by the controversial recess appointment by President Obama of Board chairman Craig Becker, whose nomination had been returned at the end of the 2009 Senate session after Majority Leader Harry Reid was unable to muster 60 votes to move the nomination forward.

Absent a legislative cure, the Board now faces novel and potentially complicated questions regarding the nearly 600 orders affected by the Supreme Court’s ruling. One possible solution would be for the Board to just re-affirm or re-issue its prior orders without further reconsideration. In general, the orders handed down by the Board involved non-controversial issues where Democrat member Wilma Liebman and Republican member Peter Schaumber were able to agree, and thus the result would not likely change with an additional Democrat vote. But there were instances where Liebman signed on to orders “solely for institutional reasons and to expedite final resolution of [a] case,” even though she disagreed with the underlying Board precedent. See, e.g., Fluor Daniel, Inc., 353 NLRB No. 15 (Sept. 25, 2008). With a Democrat majority, the Board may be interested in revisiting some orders which applied precedent it would no longer apply.

In addition, in situations where an unfair labor practice charge has been resolved through withdrawal or settlement, the Board may lack jurisdiction to issue new orders affirming the prior unlawful orders. For example, the Fluor Daniel case discussed above was subsequently settled during compliance proceedings, and so the issues decided by the Board are now moot. In situations where orders are not re-issued, ALJs will not be bound to follow the original orders, but as a practical matter, they may find such opinions persuasive until told otherwise.

The Board may also need to address quickly decisions that either remanded a case to the ALJ for further proceedings or led to a compliance proceeding before an ALJ. If, for example, the Board found a violation of the Act and the General Counsel initiated a compliance proceeding, the ALJ may suddenly be without jurisdiction to proceed. If the Board reissues an order, the Board will have to work out the mechanics of reinstituting compliance proceedings.

Finally, the Board may face continued litigation over whether its delegation of certain powers to the General Counsel (such as the ability to approve the commencement of litigation seeking section 10(j) injunctions) was lawful. While the Court’s opinion stated that its decision did not address that question, the dissent noted that the Court was not rejecting such a view.

In a report made public on June 15, 2010, outgoing NLRB General Counsel Ronald Meisburg reviewed the 112 injunction proceedings authorized under Section 10(j) of the National Labor Relations Act since the beginning of his tenure in January 2006. Of these proceedings, 58 went forward without being settled, withdrawn, or otherwise not filed.

Under Section 10(j), the Board may seek injunctive relief from the federal courts to preserve the rights of employees engaged in administrative proceedings before the Board. The Board pursues Section 10(j) relief in only a fraction of cases - of the more than 90,000 cases before the Board in Meisburg’s term, the Board authorized Section 10(j) relief in only those112 cases. Nevertheless, Meisburg noted that those 112 cases “represent an active and vital 10(j) program” and compared favorably with other four-year periods.

In his report, Meisburg noted that the Board pursued Section 10(j) relief most commonly in cases involving interference with organizing campaigns, withdrawal of recognition from the incumbent union, undermining of the bargaining representative, and the refusal to bargain by a successor employer. The report further noted that of the 58 Section 10(j) cases that went forward, the Board won 42 and lost 12, with four cases still pending.

Following a flury of recess appointments on March 27, President Obama resubmitted to the Senate the names of those 15 officials to serve out full terms, including newly-installed Democratic NLRB Board Members Craig Becker and Mark Pearce. If the pending nominations are not approved by the Senate, the recess appointments expire when the Senate adjourns its 2011 session.

The nominations of all three of President Obama’s Board appointments stalled in the Senate over opposition to Becker by Senate Republicans and business groups. Under longstanding Senate practice, NLRB nominations are considered in a group, with opposition to a single nominee holding up confirmation of the remaining nominees. After a hold on Becker’s nomination by Sen. John McCain (R-AZ) in 2009 prevented Becker’s nomination from coming to the Senate floor before it adjourned for the year, the Senate returned Becker’s nomination to the White House on December 24, 2009. President Obama renominated Becker on January 20, 2010, and Becker cleared the Senate HELP Committee by a party-line vote.  However, Senate Republicans, joined by two conservative Democrats, blocked a floor vote on Becker’s nomination on February 9 by a 52-33 vote, with 60 votes necessary to move the nomination forward. The recess appointments of Becker and Pearce soon followed.

The nomination of Republican Senate staffer Brian Hayes, who did not receive a recess appointment, is still pending. If approved by the Senate for full terms, Becker’s and Pearce’s terms would expire on December 16, 2014 and July 1, 2013, respectively.

On March 27, 2010, after the Senate went out of session for the Passover and Easter holidays, President Obama announced 15 recess appointments, including two appointments to the NLRB.  The President used recess appointments to place Democratic lawyers Craig Becker and Mark Pearce on the NLRB, after their nominations have lingered for more than eight months.  The Senate HELP Committee had previously voted both nominations out of committee, but the nominations remain stalled in the Senate.

The appointments come on the heels of President Obama’s legislative victory on health care and resolve an impasse stretching back more than two years that has left the Board with only two of its five slots filled.  The term of one of those Board members, Peter Schaumber, is also set to expire on August 27, 2010, which would have left the Board with only one member. 

Becker, associate general counsel for the Service Employees International Union (SEIU), has drawn fire from business groups and Senate Republicans who have alleged that he is unduly pro-labor and intends to use his post to administratively implement the Employee Free Choice Act (”EFCA”), which has floundered in Congress.  In February, in a rare nominations hearing before the Senate HELP Committee, Becker explicitly denied any intention of administratively implementing EFCA, but his testimony failed to assuage Senate Republicans and a cloture vote on his nomination failed on February 9, 2010.

Pearce, a labor lawyer in private practice in Buffalo, New York, has not drawn significant opposition, but his nomination had been held up by the impasse over Becker’s nomination. The  Senate’s longstanding practice of considering NLRB nominees together in a package has effectively prevented the nominations of Pearce and Republican Senate staffer Brian Hayes, who was also nominated in July 2009, from reaching the Senate floor.  Hayes did not receive a recess appointment.

In making the recess appointments, President Obama cited a multitude of holds and procedural delays by Senate Republicans and accused Senate Republicans from “refus[ing] to exercise” their responsibility to allow his nominees an up-or-down vote. Appointments to fill the NLRB vacancies are particularly timely following last week’s Supreme Court oral arguments in New Process Steel L.P. v. NLRB, which will resolve the legality of hundreds of two-member Board decisions. At oral argument on March 23, Chief Justice Roberts appeared to suggest that the impasse over the depleted Board could be resolved by recess appointments.

On March 23, 2010, the Supreme Court heard oral arguments in New Process Steel L.P. v. N.L.R.B., paving the way for it to resolve the validity of hundreds of decisions issued by the depleted two-member National Labor Relations Board since January 25, 2008.

The case hinges on seemingly contradictory language in the National Labor Relations Act (”NLRA”), which states that “three members of the Board shall, at all times, constitute a quorum of the Board,” but authorizes the Board to delegate its power to any group of three or more of its members “except that” two members of any such delegated group “shall constitute a quorum” of that delegated group. Following impasses between the executive branch and the Senate in the final year of the Bush administration and the first year of the Obama administration, three vacancies have gone unfilled, leaving only two Board members, Democrat Wilma Liebman and Republican Peter Schaumber, to issue decisions. The four-member NLRB in December 2007 delegated its powers to a three-member panel which was eventually reduced to just members Liebman and Schaumber upon the expiration of the third member’s term.

In oral arguments, Deputy Solicitor General Neal Katyal defended the two-member NLRB, focusing on the “except that” language, which he argued permitted two-member quorums where the Board’s membership was depleted. Katyal also pointed to the hundreds of pre-1947 decisions issued by two members when the NLRB’s regular membership was only three. New Process Steel - which was on the losing side of a two-member panel decision - was represented by Sheldon E. Richie, who argued the delegation to the two-member panel was an evasion of the NLRA and represented delegation to a “phantom group” unable to engage in the robust debate intended under the statute.

In questioning, Justice Scalia seemed to reject the two-member panel, calling it an “evasion” of the statutory three-member quorum requirement for the full Board, while Justice Breyer seemed more sympathetic, posing a hypothetical about a delegated panel depleted after the death of a member. Chief Justice Roberts questioned the necessity for the two-member quorum, asking why the President could not fill out the Board with recess appointments.

Five federal courts of appeal have upheld the decisions of the two-member Board, while the D.C. Circuit ruled that the decisions were invalid.

President Obama’s three appointments to the NLRB, Democrats Craig Becker and Mark Pearce and Republican Brian Hayes, are in limbo following a Republican-led filibuster of Becker and the failure to achieve cloture on his nomination on February 9, 2010. All three nominations have cleared the Senate HELP Committee twice - both in 2009 and 2010 - and continue to await action by the full Senate.

For more coverage of the argument, please see SCOTUSblog.com:

http://www.scotusblog.com/2010/03/todays-transcript-13/

http://www.scotusblog.com/2010/03/identifying-quorum-requirements-for-the-national-labor-relations-board/

On February 9, 2010, Republican Senators, joined by two Democrats, blocked a floor vote on the controversial nomination of Craig Becker to the National Labor Relations Board. By a 52-33 vote, Senate Democrats fell short of the 60 votes necessary to move Becker’s nomination to a floor vote. Sens. Ben Nelson (D-NE) and Blanche Lincoln (D-AR) voted against Becker, who is associate general counsel to the Service Employees International Union (SEIU). Newly-seated Massachusetts Sen. Scott Brown (R-MA) joined his Republican colleagues in voting against the Becker nomination.

Becker was originally nominated to the NLRB in 2009, but Sen. John McCain (R-AZ) placed a “hold” on the nomination and requested that Sen. Tom Harkin (D-IA) hold a hearing. After the nomination was returned to the White House when the Senate adjourned in December, President Obama re-nominated Becker and Sen. Harkin agreed to hold a hearing. A summary of the February 2 hearing is posted here.