August 13, 2013 

 Compliance Matters ™

 

Full Five-Member NLRB Confirmed for the First Time in a Decade

 

            For the first time in almost 10 years, the National Labor Relations Board has a full complement of five Senate-confirmed members. The Board, which regulates union representation elections and adjudicates allegations of unfair labor practices against unions and employers, has been the subject of a long-running battle between the President and Senate Republicans. In January 2012, the President made an end run around Republican opposition to his nominees by making three "recess" appointments to the Board. The legitimacy of those appointments was challenged in the courts, and they have now been ruled unconstitutional by three federal appellate courts, potentially invalidating hundreds of Board decisions and many internal agency appointments and rule changes made over the last 20 months. The fate of those matters will ultimately be decided by the U.S. Supreme Court in its next session.

 

            However, to allow the Board to get back to business on a going-forward basis, a bipartisan agreement was worked out whereby the President agreed to replace the two remaining "recess appointees" with new nominees and Senate Democrats agreed not to seek a change in Senate rules which give a minority party the ability to block nominations. Two Republican nominees were nominated and confirmed as part of the package deal between the Senate and the White House. This continues the tradition of the Board consisting of three members from the President's party and two members from the opposite party.

 

            What impact will the NLRB getting back to business have on employers?

 

            Given that the three Democrats on the Board have extensive histories of representing organized labor, many employers are concerned that the Board will continue pushing the same pro-union, pro-employee agenda that was put forward by the "recess" appointees. These include rulings which have made it easier for unions to organize and win representation elections. This agenda has also extended the NLRB's jurisdiction further into the non-unionized work force by, for example, striking down arguably innocuous employer policies and overturning discipline for what appears to be inappropriate comments by employees on social media.
  
            If you have any questions about the matters discussed in this issue of Compliance Matters, you may contact any member of the Firm. We are reachable at 818-508-3700 or www.brgslaw.com.

 

Richard S. Rosenberg

Founding Partner       

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


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