NLRB Notice to Employees

White House announces recess appointments of three to fill Board vacancies

President Obama today announced his intent to recess appoint the following three individuals to serve as Members of the National Labor Relations Board.

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

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NLRB Approves Changes to Union Election Rules, 2 to 1

by Seth Borden

On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.

The approved changes will include:

a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”
b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs
c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election
d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election
e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board
f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.

At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes. John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188. The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

Obama Names Two New NLRB Nominees

by Ilyse Schuman

President Obama has announced that he intends to nominate Sharon Block (D) and Richard Griffin (D) to fill two vacancies on the National Labor Relations Board. When Member Craig Becker’s recess appointment expires at the end of this year, the Board will be left with only two members, Chairman Mark Gaston Pearce (D) and Member Brian Hayes (R). As the Supreme Court decided in last year’s New Process Steel decision, the Board must operate with at least three members to exercise its full authority. In January of 2011, Obama nominated Terence Flynn (R) to fill one of the vacant slots on the five-member Board, but the Senate has not yet acted on his nomination. It is expected that the Senate will similarly take no action on the latest nominees. The possibility of the President seating Block and Griffin by recess appointment is also low, as the House will likely take steps to block his ability to do so.

According to information published by the White House, Block has worked as an attorney in both the private and public sectors. She currently serves as the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Her other positions have included Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy, and senior attorney to former NLRB Chairman Robert Battista.

Griffin is a long-term attorney for the International Union of Operating Engineers (IUOE). He is currently the union’s General Counsel, and has served on the board of directors for the AFL-CIO Lawyers Coordinating Committee for the past 17 years. Griffin also has worked as a counsel to NLRB Board Members.

Review Officer Opposes Amalgamated Union

Click to enlarge.

On December 13, 2011 Review Officer Dennis Walsh wrote to Judge Berman requesting the Court hold a hearing and also direct Mr. Bisceglie (Counsel to Amalgamated Carpenters and Joiners Union) to appear, to address the question of "whether the purpose and methods employed by the Amalgamated Union and its intended business interferes with the implementation of the Consent Decree and the Stipulation and Order."

Judge Berman requested Bisceglie to respond to Walsh's letter and has put the matter on the agenda for the scheduled December 20th conference with the Court.

The Dockbuilders are seeking to break away from the UBC and form a new carpenter union affiliate with the International Union of Painters and Allied Trades (IUPAT) and has filed the necessary petitions with the NLRB to conduct a representation election.

In his response, Bisceglie among other things wrote, "the Court should not interfere in any way with the proceedings before the National Labor Relations Board, which is the body with jurisdiction to resolve representation proceedings."

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