Labor Relations & Wages Hours Update


Nov 18, 2013 (7 years and 10 days ago)


Labor Relations & Wages Hours Update



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Thomas E. Perez confirmed as Secretary of Labor

By Pamela Wolf, J.D.

Near the end of a particularly tense week in the Senate, that Chamber today has
confirmed, by a vote of 54
46, President Barack Obama’s nomination of Thomas E.
Perez as Secretary of Labor. Yesterday, with a

of 60
40, the Senate agreed to cloture
on the nomination. As a result, debate on the nomination was

to up to 30 hours.

The cloture vote followed on the heels of a last
minute bargain to avert a threat by Senate
Majority Leader Ha
rry Reid (D
Nev) to pursue the so
called “nuclear option”

a rules
change that would nix the filibuster as an option with regard to executive branch

if Senate Republicans refused to give Obama’s nominations for vacant
NLRB and some other positi
ons an up or down vote. As part of the bargain, the president
withdrew his nomination of two controversial recess appointees to the Board, Sharon
Block and Richard F. Griffin, Jr., and quickly submitted two replacements, Kent
Hirozawa and Nancy Schiffer. T
he Senate Health, Education, Labor, and Pensions
(HELP) Committee has slated hearings on the NLRB nominations for July 23 and 24.

Senator Tom Harkin (D
IA), HELP Committee Chairman, quickly issued a

following Perez’s confirmation, noting that Perez was favorably reported out of the
committee in April. “Without que
stion, Tom Perez has the knowledge and experience
needed to guide the U.S. Department of Labor. Through his professional experiences

and especially his work as Secretary of the Maryland Department of Labor, Licensing
and Regulation

he has developed strong
policy expertise about the many important
issues for American workers and businesses that come before DOL each day,” Harkin

“As the Senate author of the Americans with Disabilities Act, I have been particularly
impressed by Mr. Perez’s record of str
ong leadership on disability rights issues,” Harkin
continued. “From his time as head of the Office of Civil Rights at the Department of
Health and Human Services in the Clinton Administration, and continuing through to this


day in his role as Assistant At
torney General for Civil Rights at the Justice Department,
he has helped ensure that people with disabilities have the choice to live in their own
homes and communities

rather than only in institutional settings

and to receive
supports and services to make

this possible. Indeed, throughout his career Mr. Perez has
fought to enforce all of our most critical civil rights laws and has worked to safeguard the
rights of every American.”

Although Senator Lamar Alexander (R
Tenn) voted in favor of cloture on the P
nomination, he issued a

yesterday clarifying that he would vote against
confirmation of the nominee. Referr
ing to Perez’s prior stints at the DOJ and as an
Assistant Attorney General, Alexander said: “Mr. Perez did not discharge the duty he
owed to the government to try to collect the money owed to taxpayers. He did not
discharge the duty to protect the whistle
blowers who were left hanging in the wind. And
at the same time he was manipulating the legal process to remove a case from the
Supreme Court in a way that is inappropriate for the Assistant Attorney General of the
United States.”

“My view of his record r
aises troubling questions about his actions while at the
Department of Justice and his candor in discussing his actions with [the HELP
Committee],” Alexander said.

Senate Republican leader faces mounting pressure to put NLRB nominees to a vote
before agenc
y is shut down

By Pamela Wolf, J.D.

On Tuesday, July 9, U.S. Representative Linda Sanchez (D
Cal) and Communication
Workers of America (CWA) President Larry Cohen held a press conference to bring
attention to what they characterize as the “obstruction by
Senate Republicans that is
blocking action on President Obama’s executive nominations to the National Labor
Relations Board and other agencies.” Earlier in the day, with a letter directed to Mitch
McConnell (R
Ky) that was signed by some 200 members of Con
gress, Sanchez, along
with Representative Joe Courtney (D
Conn), called on the Senate Republican Leader to
stop threatening to block a Senate vote on the full package of NLRB nominees.

President Obama has nominated Phil Miscimarra, Harry Johnson, and Chair
man Mark
Pearce, along with two controversial recess appointees, Sharon Block and Richard
Griffin, to serve as Board Members. On May 22, the Senate HELP Committee approved,
largely along party lines, all five nominees. The slate of candidates, however, mus
t be
approved by the full Senate. Unless the candidates are approved, the NLRB will
effectively cease to function on August 27, when the term of Pearce, the only confirmed
member, expires.

Recently, rallies and actions were held in 26 states, with CWA memb
ers joined by Sierra
Club, Blue Green Alliance, Jobs with Justice, and AFL
CIO activists, according to the
CWA. At last count, 3,350 letters were delivered to Senate offices in seven states, and
meetings with senators and staff were held in states includin
g Delaware, Illinois, Indiana,
Michigan, Missouri, New York, Ohio, West Virginia, and Wisconsin, among others.


At the press conference, Representative Sanchez said that Senate Republicans should stop
their “shameless attempt” to shut down the NLRB and prev
ent the agency from
protecting the rights of hardworking Americans. By refusing to the let the nominations
face an up or down vote in the Senate, McConnell is not permitting the normal function
of government to proceed, according to Sanchez. Working Americ
ans “deserve a
Congress that works to make their lives easier, not harder,” she said, noting that the
government cannot protect workers’ rights if there is no quorum at the NLRB.

Cohen pointed out that the Supreme Court will not take up the
Noel Canning

challenging the president’s recess appointments to the NLRB until next term. He called
on the Senate to do its job before the NLRB is forced to shut down. Cohen also noted that
the NLRB is not the only agency whose nominees have been stalled. Richard Co
nomination to the Consumer Financial Protection Bureau, for example, also has not been
put to a vote.

Cohen said he expects that if McConnell fails to permit a vote on the package of NLRB
nominees, the Democratic Caucus will take up rules changes
that would dissolve the
current obstructionist strategy. If necessary, that action is anticipated to be taken next
week or the following week.

As Cohen observed, if the Senate refuses to vote on the nominees, there may be no
NLRB on Labor Day.

Harry Reid
files cloture on NLRB, Secretary of Labor nominees

By Pamela Wolf, J.D.

In a move that has escalated the stakes in battle over President Obama’s nominees,
Senate Majority Leader Harry Reid (D
Nev) on July 11 filed

on several pending
nominations, including the five candidates for the NLRB and Secretary of Labor nominee
Thomas Perez, all of whom were favorably reported out of the Se
nate Health, Education,
Labor, and Pensions Committee (HELP) in May.

Cloture is the only procedure by which the Senate can vote to place a time limit on
consideration of the nominees and thereby overcome filibuster.

The move comes on the heels of a press

conference on Tuesday, July 9, held by
Representative Linda Sanchez (D
Cal) and Communication Workers of America (CWA)
President Larry Cohen in order to bring attention to what they characterized as the
“obstruction by Senate Republicans that is blocking
action on President Obama’s
executive nominations to the National Labor Relations Board and other agencies.”

In a letter to Mitch McConnell (R
Ky) earlier that day, Sanchez, along with
Representative Joe Courtney (D
Conn), called on the Senate Republican
Leader to stop
threatening to block a Senate vote on the full package of NLRB nominees. The letter was
signed by some 200 members of Congress. There have also been rallies and other actions
in 26 states, according to the CWA. Thousands of letters were also

delivered to Senate


President Obama has nominated Phil Miscimarra, Harry Johnson, and Chairman Mark
Pearce, along with two controversial recess appointees, Sharon Block and Richard
Griffin, to serve as Board Members. On May 22, the Senate HELP C
ommittee approved,
largely along party lines, all five nominees. The slate of candidates, however, must be
approved by the full Senate. Unless the candidates are approved, the

effectively cease to function on August 27, when the term of Pearce, t
he only confirmed
member, expires.

From the Senate floor, Reid said: “It is a disturbing trend when Republicans are willing to
block executive branch nominees even when they have no objection to the qualifications
of the nominee. Instead, they are blocking

qualified nominees to circumvent the
legislative process, force wholesale changes to laws or restructure entire executive branch
departments. They are blocking qualified nominees because they refuse to accept the law
of the land … Yet the Republican Leade
r says there is no problem here. The status quo is

“In the meantime, the term of one of the three remaining NLRB members expires next
month,” Reid pointed out. “And soon the board will once again be unable to function. Of
course, Republicans conside
r that a victory. In 2011, the senior Senator from South
Carolina, Lindsay Graham, said, quote, ‘the NLRB as inoperable could be considered

“Because Republicans refuse to accept the law of the land, they have denied the NLRB
the ability to safe
guard workers’ rights and monitor unions. Workers who have been
illegally terminated from their jobs will have no appeal. The results of contested union
elections could be thrown out. And labor abuses and unfair employment practices would
go unchallenged.
Yet the Republican Leader says there is no problem here. The status
quo is fine.”

According to Reid, “The Republican Leader has failed to live up to his commitments. He
has failed to do what he said he would: move nominations by regular order except in
raordinary circumstances. And I refuse to unilaterally surrender my right to respond to
this breach of faith.

“If Senator McConnell wants to continue to defend the status quo of gridlock in
Washington, that is his right. If Senator McConnell wants to conti
nue to believe there is
no problem in the United States Senate, that is his choice. But the American people are
fed up the gridlock, fed up with the obstruction and fed up with these politics as usual.
They want Washington to work for American families onc
e again. I try every day to be
on their side. And I will wait not wait another month, another year, another Congress to
take action.”

Senator Reid has scheduled a procedural vote around 5:30 pm on Monday, July 15, and a
joint Democratic and Republican caucus meeting at 6:00 pm on Monday. If no agreement
on the nominations can be reached, the first cloture vote is slated for early Tuesday

morning. If cloture is invoked on any of the nominations, up to 8 hours of debate would
be permitted prior to a vote on confirmation of the nomination, except for the Perez


nomination, which would have up to 30 hours of post
cloture debate. If cloture is
invoked on a particular nomination, the Senate would proceed to vote on cloture on the
next nomination.

At the press conference earlier this week, Cohen suggested that if McConnell fails to
permit a vote on the package of NLRB nominees, the Democratic
Caucus will take up
rules changes that would dissolve the current obstructionist strategy. Indeed, Democrats
could vote to change the rules to eliminate the filibuster on executive nominees.

President withdraws two NLRB nominations, Bureau of Consumer Fin
Protection nominee is confirmed

By Pamela Wolf, J.D.

Today, as a result of a brokered deal to avert a potential disaster, President Obama
withdrew the nominations of his two recess appointments to the NLRB, the question of
whether the Senate rules s
hould be changed to get rid of the filibuster with regard to
executive nominations has been delayed, and one of the president’s nominees has been
confirmed by the Senate.

At about 11:00 am (ET) this morning, the Senate, by a

of 71
29, agreed to a

motion to limit the debate on President Obama’s nomination of Richard Cordray to be
Director of the Bureau of Consumer Financial Protection for a term of five years. The
move signaled a halt to Majority Leader Harry Rei
d’s (D
Nev) threat to impose the so
called “nuclear option,” under which he would move forward with a plan to change the
Senate rules to eliminate filibusters with regard to executive branch nominations.

The battle between the parties over the stall on Oba
ma’s nominations reached fever pitch
this week, particularly with regard to Cordray, the five slated candidates to serve as
members of the NLRB, and the pending nominee for Secretary of Labor. Without action
on the NLRB nominees, the agency would be effect
ively shut down when the term of the
only confirmed board member expires on August 27.

Good for the Senate.

In floor statements leading up to the cloture vote, Senator John
McCain (R
Ariz) noted that a meeting last night between 98 senators working to avo
the nuclear option was a “productive discussion” on resolving issues. Reid noted this was
“not a time to flex muscles” and was appreciative of McCain’s “advocacy and
persistence.” Reid concluded that compromise was “good for the Senate.” Senator Bob
ker (R
Tenn), a member of the Senate Banking Committee, noted that after moving
past the cloture vote on Cordray it was time to “work constructively” on the country’s

Deal to end stand

Under a deal forged to avoid the nuclear option, the pre
sident has
withdrawn the nominations of his two recess appointments to the NLRB, members
Richard Griffin and Sharon Block, and will nominate two other individuals with input
from organized labor, which traditionally has been aligned with Democrats, accordi
ng to
media reports. In exchange, Reid agreed to delay action on the question of whether the
Senate rules should be modified.


Senator Lamar Alexander (R
Tenn), the senior Republican on the Senate HELP
Committee, released a

confirming the agreement reached by Senate leadership
and the White House, under which the administration will send two new nominees to the
and pull the Griffin and Block nominations. The White House, Alexander said,
will submit two new nominations shortly. The HELP Committee has already scheduled a
hearing for 10 a.m. on July 23 on the two new nominees, he noted.

HELP Committee Chairman Senat
or Tom Harkin (D
Iowa) also issued a
“Today’s deal, while not ideal, will allow for a fully
confirmed Board for t
he first time in
a decade, and that is a step forward for our country. It is my hope that Republicans will
make good on their word to give swift consideration to these nominees, and that this
could bring a new beginning for the Board, so that the dedicated

public servants at the
agency can do their jobs without the constant political attacks and interference that we
have seen in recent years.”

“While today’s agreement on nominees leaves the necessary work of Senate rules reform
still to be done,” he continu
ed, “I am pleased that the minority appears to be willing to
allow the Senate to move on a number of important executive nominations, consistent
with the history of the Senate and, I believe, with the framers’ intent. In particular, I
welcome the news that

the Senate will act to advance the nomination of Thomas Perez to
serve as Labor Secretary.”

Meanwhile, Cordray’s nomination was

in the Senate by a vote of 66

President submits two new nominations to NLRB as Senate deal moves forward

By Pamela Wolf, J.D.

President Barack Obama on July 16 withdrew two of his nominations to the NLRB and
announced the nominat
ions of Kent Hirozawa and Nancy Schiffer to fill those two spots.
The move was part of an agreement that led to Senate action resulting in the confirmation
of Richard Cordray, another of the president’s nominees, to be Director of the Bureau of
Consumer Fi
nancial Protection.

After mounting tension this week over the executive nominations stalled in the Senate,
and Majority Leader Harry Reid’s (D
Nev) threat to deploy the so
called “nuclear
option” to change the Chamber’s rules so that filibuster would be e
liminated as an option
with regard to executive branch nominations, a deal was struck that averted a full

As part of the eleventh
hour bargain, the president withdrew his nominations of Sharon
Block and Richard F. Griffin, Jr., both of whom
were serving under controversial recess
appointments, the lawfulness of which will be tested in the Supreme Court next term in
NLRB v Noel Canning

Dkt No 12
). Republicans re
portedly agreed to permit
confirmation of replacement nominees, and Reid has delayed action on any change to the
Senate rules.


Announcing the nominations, the president said, “The National Labor Relations Board is
responsible for enforcing protections that

are fundamental to growing the economy and
creating jobs for the middle class. It gives me great confidence that such dedicated and
capable individuals have agreed to join the Board and I look forward to the agency
continuing its work to promote better wa
ges and conditions for all American workers.”

Kent Hirozawa, whom the president nominated for a five
year term expiring on August
27, 2016 (formerly held by Wilma B. Liebman), is currently chief counsel to NLRB
Chairman Mark Pearce. Before joining the NLRB

staff in 2010, Hirozawa was a partner
in the New York law firm Gladstein, Reif and Meginniss LLP, where he advised clients
on a variety of legal and strategic issues, including federal and state labor and
employment law matters. He previously served as a
field attorney for the NLRB from
1984 to 1986. Hirozawa was a pro se law clerk for the U.S. Court of Appeals for the
Second Circuit from 1982 to 1984. He received a B.A. from Yale University and a J.D.
from New York University School of Law.

Nancy Schiffer
, who has been nominated to serve a five
year term expiring December 16,
2014 (formerly held by Craig Becker), was Associate General Counsel to the AFL
from 2000 to 2012. Prior to working for the AFL
CIO, she was Deputy General Counsel
to the UAW from
1998 to 2000. She had previously worked as Associate General
Counsel for the UAW from 1982 to 1998. Earlier in her career, Schiffer was a staff
attorney in the Detroit Regional Office of the NLRB and worked as an attorney in private
practice. She received
her B.A. from Michigan State University and her J.D. from the
University of Michigan Law School.

Senate HELP committee advances two new NLRB nominees, full slate now ready
for Senate vote

By Pamela Wolf, J.D.

The Senate Health, Education, Labor, and Pensions (HELP) Committee on Wednesday,
July 24, approved President Obama’s nominations of Kent Hirozawa and Nancy Schiffer
to serve on the National Labor Relations Board. The committee has now approved a full

of nominees, having voted on May 22 to advance the nominations of Phil
Miscimarra, Harry Johnson, and Chairman Mark Pearce, along with two recess
appointees whose nominations were withdrawn by the president last week as part of the
called “nuclear opti
on” deal that ended the standoff on executive nominations.

“Once these five nominations are approved by the Senate, our country will have a fully
confirmed, fully
functional Board for the first time in more than a decade

a huge step
forward for workers,
businesses, and our economy,” said HELP Committee Chairman
Tom Harkin (D

“All five nominees to the NLRB are highly qualified experts in the field of labor and
employment law, and I am confident that all five will serve the Board well,” Harkin
d. “I am hopeful that my Senate colleagues on both sides of the aisle will join me
in supporting these nominees when their nominations come before the Senate, so that the
Board can continue its important work.”


At the July 23 hearing on the nominations, S
enator Lamar Alexander (R
Tenn), the
senior Republican on the committee pressed the two nominees to protect state right
work laws. Alexander cautioned against the Board trying to make an end run around
Congress to undermine these laws, citing a case in
which acting general counsel moved
to stop Boeing, located in non
work state Washington, from expanding into
state South Carolina, according to his press release.

“Tennessee is one of 24 states with a right
work law, and we stron
gly support that
law,” Alexander said. “It’s been the primary driver of the expansion of our auto industry
over the last 30 years. It includes both a General Motors plant, which has United Auto
Workers’ partnership/membership, and it includes plants like N
issan and Volkswagen,
which do not, as well as hundreds of suppliers. So it is very important to us that the right
work law be protected.”

“The hearing is about nominees whose job it is to be judges, not advocates

that’s what
the board members of the

National Labor Relations Board are supposed to do,”
Alexander observed. “The National Labor Relations Act talks about the job being ‘to
prescribe the legitimate rights of both employees and employers in their relations
affecting commerce,’ which suggests
a high level of impartiality.”

Senate Majority Leader Harry Reid (D
Nev) previously indicated that the two new
nominations could proceed to a vote in the full Senate as early as tomorrow, according
media reports.

Cloture filed on NLRB nominations

Senate Ma
jority Leader Harry Reid (D
Nev) filed cloture during Thursday’s Senate
session on three of the president’s NLRB nominations as well as his nomination for FBI
director. The Senate is in adjournment until Monday, July 29. There will be a cloture vote
at 5:3
0 pm that day on the FBI nominee, the first of Reid’s cloture filings.

Presumably, the Senate will later proceed to cloture votes on the NLRB nominations in
the following order: (1) Kent Yoshiho Hirozawa, of New York, to be a Member of the
Board; (2) Nanc
y Jean Schiffer, of Maryland, to be a Member of the Board; and (3) Mark
Gaston Pearce, of New York, to be a Member of Board.

Schiffer is a former associate general counsel to the AFL
CIO. Pearce is the current
NLRB chairman. Hirozawa is currently chief co
unsel to Pearce.

If cloture is invoked on any of the nominations, there would be up to 8 hours of post
cloture debate time on each nomination. Once disposition of a nomination is reached, the
Senate would proceed to a cloture vote on the next nomination in

the order listed.

Full Board is confirmed

By Pamela Wolf, J.D.

On Tuesday, July 30, the Senate confirmed all of President Barack Obama’s nominations
to the National Labor Relations Board. The NLRB now has a full complement of five


members: Mark Gaston Pea
rce, Nancy Jean Schiffer, Kent Yoshiho Hirozawa, Harry I.
Johnson, and Philip Andrew Miscimarra.

Schiffer is a former associate general counsel to the AFL
CIO. Pearce is the current
NLRB chairman, and Hirozawa is currently chief counsel to Pearce. Johnson

is currently
partner with Arent Fox LLP, and Miscimarra is a partner in the Labor and Employment
Group of Morgan Lewis & Bockius LLP.

After invoking cloture yesterday on the nominations of Pearce, Schiffer and Hirozawa,
each nomination proceed to a vote t
hat fell along party lines. Pearce’s, however, was
confirmed by a vote of 59
38, with Republican Senators Lamar Alexander (Tenn.), Susan
Collins (Maine), Saxby Chambliss (Ga.), Christopher Coons (Del.), John McCain (Ariz.),
Lisa Murkowski (Alaska), and Rob

Portman (Ohio) voting in favor of his confirmation.

Schiffer and Hirozawa were both confirmed by a vote of 54
44. Senator Murkowski was
the lone Republican casting a vote in favor of each of their nominations. Johnson and
Miscimarra were confirmed by voi
ce vote.

The road to the first full complement of Board Members in a decade came only after
Majority Leader Harry Reid threatened to use the so
called “nuclear option” that would
have altered Senate rules to eliminate the option of filibuster in executive
nominations. In a resulting bipartisan bargain, the president withdrew the nominations of
two recess appointees and replaced them with two new ones. The Board will now have
three Democratic and two Republican members.

President Obama quickly issued

praising the confirmation of the five
nominations: “A critical part of our effort to strengthen th
e middle class is ensuring that
every American who works hard has a chance to succeed. That means providing wages
people can live on, safe working conditions and real opportunities to get ahead. Every
day, the NLRB is focused on the concerns of working Ame
ricans, from eliminating
unfair labor practices to upholding the right of employees to join a union and bargain
collectively with their employers. I applaud the Senate for putting in place a full board
and look forward to working together on other steps we

can take to grow our economy.”

CIO President Richard also a statement,
: “With today’s vot
e, our country has
qualified public servants on duty to defend America’s workers, businesses, and families.
We congratulate all of the nominees and look forward to having a functioning NLRB that
will fairly and impartially oversee the workplace rights of m
illions of Americans.”

Cable companies want a ruling from the Court as to whether all NLRB agents are
barred from acting due to unlawful recess appointments

By Pamela Wolf, J.D.

In a move that could put the NLRB out of business, CSC Holdings, LLC, and
evision New York City Corp have filed an
emergency application

with the Supreme
Court that raises the question of whether, if the NLRB lacks a quorum and thus authority


to act becaus
e of the purportedly unlawful recess appointments of three of its board
members, the impotence extends all the way to all of the Board’s agents.

The companies have asked for a stay of administrative proceedings on unfair labor
practice charges currently scheduled for hearing before a law judge, pending adjudication
of their petition for mandamus or prohibition in the D.C. Circuit that seeks to prev
ent the
NLRB from prosecuting ULP complaints and related proceedings, including any request
for Sec. 10(j) injunctive relief. Alternatively, the companies would like the Supreme
Court to treat their application as a petition for certiorari in advance of ju
dgment, grant a
stay of the NLRB administrative proceedings pending consideration of the cert petition,
or at a minimum to delay determination pending the Court’s decision in

v Noel

The D.C. Circuit denied the companies’ request for a stay of the NLRB proceedings and
put their mandamus petition in abeyance pending determination of another mandamus
petition to prevent further action by the Board and its agents.
According to the
companies, the D.C. Circuit’s resolution of the other mandamus request will come too
late to provide the companies with any relief.

The companies argue that the issues raised in their mandamus petition below

the Board may lawfully
prosecute the agency proceedings against them

plainly warrants
Supreme Court review. The issue turns on the legality of the President’s January 2012
recess appointments, which the Court has already agreed to decide, via the
Noel Canning

case. Moreover, the

companies assert, the question of “whether the Board’s agents may
exercise the agency’s statutory authority if the Board itself cannot implicates a separate
circuit split regarding the meaning of a federal statute and this Court’s decision in

Meanwhile, NLRB Chairman Mark Gaston Pearce today issued a statement
commemorating the 78th anniversary of the signing of the National Labor Relations Act.
“For 78 years, the National Labor Relations Board has worked to fulfill the promise made
working Americans by FDR and Congress when they enacted the National Labor
Relations Act,” he said.

“Our job today, just as it has been since the Great Depression, is to ensure the right of
millions of working men and women to organize and bargain collect
ively for better
wages, benefits and working conditions, to protect companies from unfair labor practices
and to resolve disputes by enforcing the law,” he continued.

“The National Labor Relations Board is proud of our on
going work to guarantee
in the workplace and sustain a strong and expanding middle class. Across the
country today, businesses and workers are pulling together to emerge from the worst
economy since the 1930s. We look forward to continuing our work to help them resolve
disputes a
nd build an economy that works for every American family.”


As to whether the agency will be able to continue on an uninterrupted path to meet its
laudable goals will depend in large part on what the Supreme Court determines next term
Noel Canning

and pe
rhaps, beyond.

4th Cir.: NLRB recess appointments constitutionally invalid; “recess” means only
“intersession” break

By Joy Waltemath, J.D.

In two consolidated cases in which the NLRB petitioned for enforcement, the Fourth
Circuit found that the Board lac
ked a quorum at the time it issued its 2012 decisions,
concluding that the President’s three January 4, 2012, Board appointments were
constitutionally infirm because the appointments were not made during “the Recess of the
Senate” (
NLRB v Enterprise Leasing Co Southeast, LLC
, July 17, 2013, Hamilton, C).
Accordingly, the court denied the Board’s applications for enforcement. The issue of the
constitutionality of the President’s recess appo
intments is currently pending before the
U.S. Supreme Court, which granted review in Noel Canning last month.

Both underlying disputes involved alleged refusals to bargain following a representation
election. Both employers raised constitutional and non
onstitutional arguments that were
addressed initially by the court, noting it would attempt to resolve the disputes on non
constitutional grounds, if possible. In each case, after a careful and thorough analysis of
the facts and relevant precedent, the cou
rt found that the Board’s determination was
supported by substantial evidence and that the employers could not prevail on their
statutory challenges under the NLRA

, that election results should not be
set aside, and in
, that the
bargaining unit determination was appropriate.

Turning then to the constitutional issues, the court addressed the validity of the three
recess appointments. Citing the Supreme Court decision in
New Process Steel

determined what constituted a valid NL
RB quorum, the court reiterated that if the
appointments were invalid, the Board’s quorum requirement was not met at the time it
issued the 2012 decisions.

Senate not adjourned.

The parties agreed that the Senate was not adjourned pursuant to
the Adjournme
nts Clause when the President made the three 2012 recess appointments to
the Board at issue here. Noting that the Board’s view was supported by decisions of the
Second, Ninth, and Eleventh Circuits, while the employers’ positions were buttressed by
two rec
ent decisions by the D.C. Circuit and the Third Circuit, the court addressed
specifically and exhaustively the following precedent: the Eleventh Circuit’s decision in
, the D.C. Circuit’s decision in
Noel Canning
, and the Third Circuit’s decision in
ew Vista Nursing

What does “recess” mean?

All parties agreed that the President may exercise his recess
appointment power only “during the Recess of the Senate.” To the court, there were three
plausible definitions of the term “the Recess” as used in the

Recess Appointments Clause.
First is the definition adopted by the
Noel Canning

New Vista Nursing


breaks of the Senate; that is, the time period between an adjournment sine
die and the start of the Senate’s next session. Second is

the definition adopted by the


court in Evans: intersession breaks as well as

breaks (an intrasession break is
the time period between a non
sine die adjournment and the time the Senate reconvenes).

Although the Board agreed with the definiti
on of the term “the Recess” as developed in
, it offered another definition: a period when the Senate is not open for business
and, thus, unable to provide advice and consent on the President’s nominations. Under
this unavailable
definition, when the Senate holds pro forma sessions, the
President may exercise his recess appointment power because the Senate is neither doing
business nor available to provide its advice and consent, argued the Board.

Recess defined.

Agreeing with the
Noel Canning

New Vista Nursing

courts, the
Fourth Circuit held that the term “the Recess,” as used in the Recess Appointments
Clause, refers to the legislative break that the Senate takes between its sessions. In other
words, the term “the Recess” mean
s the

break between an adjournment sine
die and the start of the Senate’s next session. Such an interpretation adheres to the plain
language of the Appointments and Recess Appointments Clauses, said the court, finding
it consistent with the st
ructure of the Constitution, the history behind the enactment of
these clauses, and the recess appointment practice of at least the first 132 years of the
U.S. government.

The court did not agree that the case was about the propriety of legislative pro for
sessions, as it indicated the Board would have it believe. “While the use of such sessions
arguably can have an impact on the President’s ability to make recess appointments, the
practice does not alter our conceptual understanding of the Recess Appoint
ments Clause,
especially since the Senate is more than capable of conducting business during this time,”
it pointed out. The court specifically referenced the passage of the payroll tax extension
during a pro forma session on December 23, 2011, which the P
resident signed the same
day, as evidence of coordination between legislative and executive branches showing the
Senate can perform its advice and consent function during such pro forma sessions.

Decrying the politicization of the issue “rather than a gen
uine, meaningful debate
regarding the true meaning of the clause,” the court accepted as its duty “to set forth that
meaning irrespective of political fortunes.” Accordingly, it concluded that the President’s
three January 4, 2012 appointments to the Board

were not made during an intersession
recess because Congress began a new session on January 3, 2012. Consequently, the
appointments were invalid from their inception, the Board lacked a quorum of three
members when it issued its 2012 unfair labor practice
s decisions in both the


cases, and the court vacated the Board decisions and denied enforcement.


Judge Duncan, concurring in a brief opinion, suggested that the majority’s
careful textual analysis of the interplay of

“recess” and “adjourn/adjournment” and the
framers’ use of “Session” tipped the scale in favor of the majority’s intersession
reading of the Recess Appointments Clause. The concurrence also found fault with the
dissent’s focus on the purpose of the c
lause and its “skating past the constitutional text.”
Finally, the concurring judge said the majority’s approach offered a more judicially
manageable interpretation of “the Recess” than that offered by the dissent.



Judge Diaz, in a 37
page dissen
ting opinion, challenged the majority’s
interpretation of “the Recess” as referring only to the break between the end of one
regular session of the Senate and the convening of the next (the so
called “intersession
recess”). As the Board pointed out, the ma
jority’s view of the Recess Appointments
Clause, notwithstanding its textual analysis and early historical reference, “also deems
invalid over 500 appointments by fourteen Presidents dating back to the 1860s.”

The dissent suggested that the majority’s def
inition of “the Recess” presumed a textual
clarity not found in the clause and “upsets the Framers’ carefully crafted allocation of
power between the President and the Senate in the appointments process.” Consequently,
the dissenting judge would instead ha
ve ruled that “the Recess” refers to both intra

intersession recesses because the Senate can be unavailable to provide advice and consent
during both. That interpretation, said the dissent, looked at the clause’s original purpose,
provided a pragmatic

understanding of the scope of the authority it conferred, and
maintained “the delicate balance of power that the Framers intended.”

The case numbers are
1514 and 12


Beth S. Brinkmann, U.S. Department of Justice, for NLRB. Daniel R. Begian
(The Lowenbaum Partnership) for Enterprise Leasing Company Southeast, LLC. Gregory
Branch Robertson, (Hunton & Williams) for Huntington Ingalls Incorporated. James B.
Coppess, AFL
IO, for International Association of Machinists and Aerospace Workers.

President nominates Smithsonian’s Inspector General to serve as DOL’s IG

On Thursday, July 18, President Barack Obama sent to the Senate his nomination of Scott
S. Dahl for the job of I
nspector General, Department of Labor. Dahl is currently the
Inspector General at the Smithsonian Institution.

Dahl began his stint at the Smithsonian in January 2012, according to a White House
announcement. He has also been an adjunct professor at Georgetown University Law
Center since 1992. Dahl previously served as Deputy Inspector General for the U.S.
nt of Commerce from October 2010 until January 2012, and Deputy Inspector
General for the Office of the Director of National Intelligence from 2007 until 2010.
Before that, he worked at the U.S. Department of Justice for more than 15 years,
including as Se
nior Counsel to the Inspector General, a prosecutor in the Public Integrity
Section of the Criminal Division, and trial attorney for the Civil Fraud Section in the
Civil Division.

Prior to his government service, Dahl was an associate at the D.C. law firm

Arnold &
Porter. He received a B.A. from the University of Texas at Austin and a J.D. from the
University of Texas School of Law.

D.C. Cir.: Without notice and comment rulemaking, DOL’s 2010 Administrator
Interpretation deeming mortgage loan officers none
xempt invalid

By Ronald Miller, J.D.


The D.C. Circuit reversed a district court order dismissing the Mortgage Bankers
Association’s (MBA) challenge to a DOL Wage and Hour Division “Administrator
Interpretation” concluding that mortgage loan officers were n
onexempt under the FLSA
Mortgage Bankers Association v Harris
, July 2, 2013, Brown, J). Without addressing the
merits of the DOL’s interpretation, the appeals court remanded the case with instructions
to vacate it.

Administrator interpretations.

Reflecting a change in direction for compliance
assistance, the Depart
ment of Labor in 2010 announced that in lieu of opinion letters, it
would issue more generalized guidance in the form of
Administrator Interpretations

it finds it necessary to provide further clarity regarding the proper interpretation of a
statutory or regulatory issue. Administrator Interpretations would set forth a general
interpretation of the law and regulations that are applicable across
to an entire
industry, category of employees, or to all employees, the agency explained. In the DOL’s
view, the approach represented a more efficient use of resources than attempting to
provide definitive opinion letters in response to fact
specific reques
ts submitted by
individuals and organizations.

In the agency’s inaugural Interpretation Letter, the exempt status of mortgage loan
officers was addressed “to provide needed guidance on this important and frequently
litigated area of the law.” The
2010 Administrator Interpretation

rescinded a 2006
opinion letter and held that mortgage loan officers did not qualify for the administrative
exemption. The appeals
court found that the agency’s 2010 interpretation was
inconsistent with its white
collar exemption regulation, 29 CFR Sec. 541.203(b), as
revised in 2004. Because the agency’s new interpretation was at odds with the agency’s
prior interpretation, it had to

conduct notice and comment rulemaking.

Notice and comment required.

Relying on its decisions in
Paralyzed Veterans of
America v D.C. Arena L.P.

Alaska Professional Hunters Ass’n v FAA
, the appeals
court reaffirmed that when an agency has given its re
gulation a definitive interpretation,
and later significantly revises that interpretation, the agency has in effect amended its
rule, which it could not accomplish under the Administrative Procedure Act (APA)
without notice and comment.

The appeals court f
ound itself in general agreement with the association that there is no
“separate and independent” requirement of reliance in determining whether an agency’s
interpretation qualifies as definitive. Rather, reliance is just one of several factors courts
look to. Because the DOL conceded the existence of two definitive


agency interpretations at oral argument, the association prevailed. Thus, the
appeals court reversed a lower court order and remanded the case with instructions to
vacate the

2010 Administrator Interpretation.

Contentious debate.

Whether mortgage loan officers qualify for the administrative
exemption is a difficult and at times contentious question. In fact, DOL has found itself
on both sides of the debate. In 2006, the agency

issued an opinion letter concluding on
the facts presented that mortgage loan officers with archetypal job duties fell within the


administrative exemption. Just four years later, in 2010, the agency issued an
Administrator’s Interpretation declaring that
“employees who perform the typical job
duties” of the hypothetical mortgage loan officer “do not qualify as bona fide
administrative employees.” The 2010 pronouncement “explicitly withdrew the 2006
Opinion Letter.”

Paralyzed Veterans
, the MBA challe
nged DOL’s decision to change their
“definitive interpretation without first undergoing notice
comment rulemaking as a
violation of the APA. The district court rejected this argument. In this appeal, the court
noted that
Alaska Hunters
’s takeaway is cl
ear: reliance is but one factor courts must
consider in assessing whether an agency interpretation qualifies as definitive or
authoritative. DOL pushed back against this framework by treating reliance as a separate
and independent third element. However, t
he D.C. Circuit noted that “definitive” is a
term of art as used in the
Paralyzed Veterans

context. Once a court has classified an
agency interpretation as such, it cannot be significantly revised without notice and
comment rulemaking.

The case number is

Attorneys: Michael W. Steinberg (Morgan, Lewis & Bockius) for Mortgage Bankers
Association. Anthony J. Steinmeyer, U.S. Department of Justice, for Seth D. Harris.

Staffing company

workers were not temps

at least as to the agency that
dispatched them; regional director calls for election

By Lisa Milam
Perez, J.D.

In what may represent a significant win for the nation’s ever
growing number of
contingent workers, an NLRB regional di
rector has recently certified an election among
workers employed by a staffing agency who are dispatched to client companies on a
project basis.

Bergman Brothers Staffing, Inc. contended that the six certified asbestos abatement
workers who it assigned out

to client companies had no reasonable expectation of
continued employment, and thus were temporary workers under the NLRA. But Region 5
Regional Director Wayne R. Gold on June 20 concluded that the workers were in fact
statutory employees, and constituted

an appropriate bargaining unit. Accordingly, he
issued a
decision and direction of election

based on a petition filed by a Maryland local of
the Laborers union (LIUNA).

Client agreement

Under the terms of the agreements signed by client companies, the
staffing company employer provides the compensation (including payroll taxes) while the
client directs and supervises the dispatched employees at the jobsite and records the hours
worked. T
he client also is to verify the accuracy of employees’ time records, and is
required to acknowledge that it will be billed for overtime, if applicable. The agreement
also states that the staffing company employer has expended “considerable time, effort,


d expense in recruiting, screening, and training temporary employees” who fill the
clients’ positions; as such, clients are restricted under the agreement from hiring the
staffing company’s employees directly or through a competing agency.

Employment relat

For their part, employees sign an application and agreement
attesting that: “I am an employee of Bergman Brothers staffing (BBS) … and only BBS
or I can terminate my employment.” They also must affirm that they will not accept
employment from clie
nts until the employee has worked for the client (through the
staffing agency placement) for 120 days, or 688 hours. Further, upon conclusion of an
assignment with a client, they agree to contact the staffing company immediately for
additional assignments.

Specifically, the agreement provides, “as a condition of
employment, I understand that I must contact BBS for available work by reporting to
BBS within 24 hours of the conclusion of each work assignment.” Failure to do so would
be construed as a voluntary

quit, and a denial of unemployment benefits.

The average client project lasts from one to two
half weeks. At the end of a given
project, the staffing company employees are released directly by the client. If the
company doesn’t immediately dispatch
them for additional jobs, they are not terminated,
but rather, they are laid off until there’s more work, according to testimony from the
company’s president and CEO. Nonetheless, the CEO argued that the employees were

that they had no expectation
of continued employment.

Not temps.

On these facts, the regional director disagreed, concluding that the unit
employees were not temps under Board law but permanent employees of the staffing
company, even if they worked inconsistent hours. “Their employmen
t is only temporary
vis the Employer’s clients,” he wrote. “[W]hile the employees’ work for the
Employer’s clients may be for a specific project or set duration, their employment with
the Employer is indefinite.”

The record evidence reflected that em
ployees had reason to expect the staffing company
would look to its current employee roster to fill future client project orders. In fact, the
staffing company

employees to contact the employer for future work at the
conclusion of any project. And

it contractually restricted their right to work directly for
clients and competitors, the regional director observed. In fact, the admonition to clients
that they may not directly hire the staffing company’s workers conveys that these
employees are hardly

term, transient workers with no interest in future working
conditions.” The conclusion that they are permanent employees was further buttressed by
the CEO’s testimony that employees were laid off, not terminated, at the end of a client



The employer also argued without success that the election
petition should be dismissed under
Oakwood Care Center

because the union did not
name the staffing company clients in the amended petition. In
, the Board held
that an ele
ction petition seeking to combine employees who are solely employed by a
user employer and employees who are jointly employed by the user employer and a
supplier employer would constitute a multiemployer unit and would only be an


appropriate bargaining uni
t with the consent of the parties. Combining such employees
into one unit contravened Sec. 9(b), the Board found, by requiring different employers to
bargain together regarding employees in the same unit.

Here, though, the union was not seeking to impose a

bargaining obligation on different
employers; the staffing company’s clients did not need to consent. Also unavailing was
the employer’s contention that, under Oakwood, a petition naming only one employer of
a joint employer relationship is inappropriate
and diminishes employees’ Sec. 7 rights.

The staffing company’s business model involved successive joint employer relationships
with its clients. There was no indication that the company had any intention of
performing asbestos abatement work itself as a sole employer. Therefore, the petition did

not implicate the Board’s concerns in
, where one group of employees had its
terms set by Employer A and another’s by Employers A/B.

The heart of the problem.

Gold deftly articulated the crux of the problem for contingent
workers seeking to organiz
e. “Were I to conclude that

requires any petition to
name both joint employers, the employees herein would effectively be denied any
opportunity to exercise their statutory rights,” the regional director explained. “The
Employer receives little adv
ance notice of when its clients will need employees, and
those client projects typically are of relatively short duration. Even assuming a labor
organization could file a petition simultaneously with the Employer securing the project
from its client, it is

unlikely that the Board would be able to conduct an election before
the project was complete, let alone engage in any meaningful bargaining. Moreover, this
futile process would have to be repeated for each of the Employer’s clients, despite that
the same
employees of the Employer may immediately transition from Client A’s jobsite
to Client B’s jobsite,” he added.

“The result would be a fleeting and ultimately illusory opportunity for the Employer’s
employees to exercise their rights to bargain collectively
. In reality, it would leave them
permanently unable to organize. Instead, by focusing on the employees’ broader and
ongoing relationship with the Employer, their Section 7 rights are not lost by focusing on
the narrow and brief duration of each client ass

rightly keeping the forest more
prominent than its trees.”

Hyatt and UNITE HERE reach national framework agreement that would end
global boycott

By Pamela Wolf, J.D.

On July 1, Hyatt Hotels Corporation and UNITE HERE announced a national agreeme
that creates a framework for the company and the union to work together moving
forward. Both UNITE HERE and Hyatt look at the pact as a positive development.

The agreement, however, will not go into effect until the settlement and ratification of
contracts by Hyatt associates in San Francisco, Honolulu, Los Angeles, and


Chicago. Pending associate approval, the contracts will provide retroactive wage
increases and maintain quality health care and pension benefits. These new contracts
would cover Hya
tt associates into 2018.

The announcement follows protests held nearly a month ago at Hyatt Corporation's
annual shareholders meeting held at McDonalds Corporation’s Oak Brook campus on
June 10. There, hotel workers had been calling on Hyatt to reform alle
gedly longstanding
labor abuses and to add a hotel worker to the board of directors to provide front
employee leadership and help reform labor practices from the top down, according to

Workers protested against Hyatt and supported the addi
tion of a hotel worker to the board
because the chain had “singled itself out as the worst employer in the hotel industry by
abusing its housekeepers, replacing longtime employees with minimum wage temporary
workers, and imposing health
threatening workloa
ds on those who remain,” the union
said. The federal government had also issued a letter to Hyatt last year, warning the
company of certain hazards their housekeepers face, according to the union.

A key provision of the newly penned agreement is a “fair p
rocess” that includes a
mechanism for employees at a number of Hyatt hotels to vote on whether they wish to be
represented by UNITE HERE. As part of the accord, once the union contracts are ratified,
UNITE HERE will end its global boycott of Hyatt.

“We loo
k forward to a new collaborative relationship with Hyatt,” said UNITE HERE
President D. Taylor. “This agreement shows that when workers across the hotel industry
stand together, they can move forward, even in a tough economy. Both organizations
deserve cre
dit for working out this constructive step forward.”

“We are delighted that our associates in Chicago, Los Angeles, San Francisco, and
Waikiki will have contracts and the pay raises that go with them,” said Doug Patrick,
Senior Vice President, Human Resour
ces for the Hyatt.

Oakland, California, public employees hold one
day strike to call attention to
breakdown in contract negotiations

By Pamela Wolf, J.D.

After a one
day strike on Monday, 3,500 employees in Oakland, California, have left
their picket line
s and returned to work, with city services returned to full operation by
Tuesday morning. The workers, represented by Service Employees International Union
(SEIU) Local 1021 and International Federation of Professional and Technical Engineers
(IFPTE) Local

21, called a strike after Bay Area Rapid Transit District (BART)
management purportedly left the bargaining table on June 30 just hours before the
expiration of union contracts.


“We sat at the table for 10 hours on Saturday without any new proposals from

management,” SEIU Local 1021 said in a statement. “We offered a cost
saving plan that
would have cut the District’s retiree medical costs by $30 million that produced no
response. We declined a proposal that attempted to divide the two largest BART u
on economic issues.”

“Now that the recession is over and city coffers are full, the City has not been straight
with employees or residents about the budget,” said IFPTE Local 21Representative
Vickie Carson. “They continue to put forward dishonest bud
get numbers and not engage
in substantive and meaningful contract negotiations. There is enough funding in the city
budget to strengthen public safety, expand economic development, restore core services
and hire key employees. There is money to help civili
an employees who lost 27% of their
paycheck purchasing power to begin to recover with a small cost
living increase.”

Over the course of the last five years, Oakland civilian employees agreed to $150 million
in wage cuts, developed $20 million in budget
efficiencies and streamlining, urged hiring
freezes, and proposed retirement incentive programs, in order to preserve core services
for Oakland residents during the economic downturn, according to IFPTE Local 21.
Nonetheless, in 15 weeks of negotiations th
e city failed to engage in meaningful and
substantial negotiations that might have deterred a strike, the union said, noting this was
the first strike in its history against the city.

IFPTE Local 21 also said that it filed an Unfair Labor Practice complain
t against the city
on June 30 for failing to negotiate seriously and substantively.

Pete Castelli, SEIU Local 1021’s Lead Negotiator for the Oakland contract, complained
that Oakland Mayor Jean Quan was untruthful when she told the media that the Local
t with city negotiators last Friday and that the city put proposals on the table, offering
workers a raise.

Announcing the end to the one
day strike, Castelli said: “Today we took our struggle to
the streets with a successful one
day strike intended to dr
aw the public’s attention to the
City’s inaction. We hope that the administration and Mayor Jean Quan got the message
and will come to bargaining on July 9 ready to settle a fair, no
concessions contract that
bolsters much
needed services and treats worker
s with respect.”

AFGE launches campaign to prevent additional work furloughs at EEOC

The American Federation of Government Employees (AFGE) is on a mission to prevent further
work furloughs of EEOC employees. On July 1, the EEOC began a reassessment perio
d to
decide whether to go forward with a plan to order employees home for a second round of unpaid
furlough days to accommodate sequestration budget cuts, according to the AFGE. The EEOC
already has required employees to take five unpaid furlough days. The

AFGE is urging the EEOC
to halt action on plans for an additional three days of furloughs.

The AFGE says that the EEOC’s employees, friends, and supporters are relying on a full range of
media to communicate to the civil rights agency that furloughs are not the way to go. Employees
are sending emails, friends are tweeting the agency, and support
ers are changing their Facebook


profile photos to a picture of a stop sign that says, “Stop EEOC furloughs,” according to the union,
which is also helping to support the effort with action emails to Congress.

The EEOC’s employees have also taken part in a
writing campaign to Commission Chair
Jacqueline Berrien to share their personal stories about the harmful effects of furloughs on their
work and finances.

“EEOC is facing a full court press as it deliberates more furloughs,” said Gabrielle Martin,
resident of the AFGE’s National Council of EEOC Locals, No. 216. “Nobody but EEOC thinks
furloughs are a good idea. Workers facing discrimination on the job want EEOC frontline staff at
their desks to help. EEOC’s own employees are suffering from the lost
pay and shortened time to
do the same work. Congress says furloughs should be a last resort.”

Martin added, “EEOC’s backlog was over 70,000 cases before this year’s employee furloughs.
Average discrimination charge processing time was over nine months befo
re furloughs. Unless
Congress undoes sequestration, it is here to stay for 10 years. EEOC must find a better way to
manage than furloughing its entire workforce. Furloughs harm EEOC’s mission and its workers.”

Martin sent said she sent a letter to Chair Be
rrien on June 24, citing cost
savings measures that
should be employed instead of furloughs, such as reducing wasteful management travel,
reducing district budgets 5 percent commensurate with the sequestration reduction, discontinuing
the service contracts

that allow contract support staff, paralegals, and mediators to get paid for
work EEOC employees perform, and canceling the EEOC’s August EXCEL and FEPA

NLRB, OSC enter MOU to permit collaboration between agencies

The DOJ announced on July 9

that the Civil Rights Division’s Office of Special Counsel for
Related Unfair Employment Practices (OSC) has entered into a Memorandum of
Understanding (MOU) with the NLRB, formalizing a collaborative relationship that allows both
agencies to
share information, refer matters to each other, and coordinate investigations as
appropriate. The OSC is responsible for enforcing the antidiscrimination provision of the
Immigration and Nationality Act, which prohibits citizenship status discrimination an
d national
origin discrimination in hiring, firing, and recruitment or referral for a fee, as well as discriminatory
Form I
9 and E
Verify practices.

The MOU will permit the NLRB to make referrals to the OSC, with the express authority of the
NLRB chargin
g party, when a matter before the Board suggests a possible violation of the INA
antidiscrimination provision, such as verification of employment authorization in the I
9 or E
process that appears to be discriminatory based on citizenship status or
national origin.

Likewise, the DOJ will refer matters to the NLRB that appear to fall within that agency’s authority,
such as infringement on the right to form, join, decertify, or assist a labor organization, and to
bargain collectively through represent
atives of their own choosing or to refrain from such
activities. In addition, the MOU provides for cross
training and technical assistance to ensure that
staff within each agency can identify appropriate referrals.

“Employers cannot avoid liability under t
he law just because an employee has turned to the
wrong agency or is unaware of additional protections available under a different law,” said
Gregory Friel, Deputy Assistant Attorney General for the Civil Rights Division. “Employees
deserve to benefit from

the efficiency of government cooperation, and employers will continue to
benefit from agency guidance on how to comply with the antidiscrimination provision and the
National Labor Relations Act.”

NLRB’s final rule on representation case procedures has no
target date, OLMS’
“persuader agreement” rule to be finalized this November


By Pamela Wolf, J.D.

The NLRB and the DOL’s Office of Labor
Management Standards (OLMS) have
released their Spring 2013 regulatory agendas outlining the rulemaking they expect
rtake during the next six months. Among the most notable items are the NLRB’s
controversial amendment of its rules on representation case procedures and the OLMS’
anticipated final rule on so
called “persuader agreements.”


The NLRB lists only one long
term action on its regulatory agenda:
Case Procedures
. The agency made a controversial proposal to amend its
rules and regulations governing the filing and processing of petitions relating to the
representation of employees for collective bargaining purposes. The notice of
rulemaking (NPRM) expressed the NLRB’s tentative view that the proposed amendments
would: (1) remove unnecessary barriers to the fair and expeditious resolution of questions
concerning representation; (2) simplify representation
case procedures an
d render them
more transparent and uniform across regions, eliminate unnecessary litigation, and
consolidate requests for Board review of regional directors' pre

and post
determinations into a single, post
election request; and (3) permit the Boa
rd to more
promptly determine if there is a question concerning representation and, if so, to resolve
it by conducting a secret ballot election.

The NLRB issued a final rule addressing a number of the proposed amendments on
December 22, 2011, which took e
ffect on April 30, 2012. However, on May 14, 2012, the
U.S. District Court for the District of Columbia issued a decision setting aside the final
rule (
Chamber of Commerce v. NLRB
, No 11
2262). On May 15, 2012, the Board

implementation of the amendments adopted in the final rule. The
Board is appealing the court's decision and also continuing to deliberate on
the rest of the
proposed amendments. The date for final action on the proposed rule is yet to be


Two regulatory actions by the OLMS are related to so
called “persuader
agreements.” First, in a final rule,
Employer and Labor Relations Consultant Reporting
Under the LMRDA
, the DOL intends to publish a final rule revising its interpretation of
section 203(c) of the Labor
Management Repo
rting and Disclosure Act (LMRDA). That
provision creates an “advice” exemption from reporting requirements that apply to
employers and other persons in connection with persuading employees about the right to
organize and bargain collectively. The revised i
nterpretation would narrow the scope of
the advice exemption. The new rule would use the common definition of advice, thereby
expanding the number of contacts that would have to be reported. The DOL expects to
finalize this rulemaking in November 2013.

a related proposed rulemaking,
Persuader Agreements: Consultant Form LM
Receipts and Disbursements Report
, the DOL intends to publish a notice and se
comments on consideration of the Form LM
21, Receipts and Disbursements Report,
which is required pursuant to section 203(b) of the LMRDA. The rulemaking will
propose mandatory electronic filing for Form LM
21 filers and will review the layout of


the Fo
rm LM
21 and its instructions, including the detail required to be reported. The
DOL anticipates that it will issue a notice of proposed rulemaking in June 2014.

The entire Spring 2013 Agenda is available at

wage airport workers protest outside US Airways shareholder meeting

wage airport workers and supporters held a Midtown Manhattan rally outside the
US Airways shareholder meeting on Friday, July 12. They protested

the fact that
executive pay is skyrocketing while passenger service workers remain mired in poverty
wages, according to SEIU local 32BJ.

Over 100 airport workers from Boston, Philadelphia, Fort Lauderdale, Newark, and New
York City said US Airways' busine
ss model is unjust because it calls for them to labor in
a shadow economy with no job security, working for minimum wage, relying on tips, and
lacking basic benefits while the airlines' top executives rake in millions of dollars.

32BJ SEIU President Hector

Figueroa called the system unfair because it rewards a few
executives at the top at the expense of the worker bees for the good fortunes of the entire
industry. “Inside, US Airways' CEO, Douglas Parker, is asking shareholders for a 44%
pay raise,” Figuero
a told workers protesting outside the meeting. “Imagine that. He wants
$5.5 million and the possibility of up to $86 million in total compensation for himself and
other top executives. That should be an embarrassment to US Airways. What about the
r attendant, the cabin cleaner, the security officer? Who is looking out for

The union says that US Airways' shareholders are expected to cast the final vote to
approve an $11 billion merger with American Airlines

effectively creating the world’s
largest airline

but the airline still fails to address wage and working conditions for
thousands of contracted security officers, cleaners, and wheelchair attendants who
struggle to get by.

“With wages as low as $4.77 an hour plus tips and with no health

insurance, many airport
workers can barely cover the basic needs of their families,” the union said. The median
wage for airline subcontracted workers at Philadelphia International Airport, the nation's
leading big city for poverty, is $7.85 an hour. At t
he Port Authority of New York and
New Jersey airports, it is $8 an hour. Meanwhile, US Airways CEO Parker makes $2,640
an hour, according to the union.

Alaska Airlines’ pilots ratify new five
year contract

Alaska Airlines’ pilots have approved a new five
ear contract, according to the Air Line
Pilots Association, International (ALPA). With nearly 94 percent of 1,343 eligible voters
casting a ballot, 67 percent voted in favor of the agreement. The new contract increases
pay by nearly 20 percent over the lif
e of the agreement and contains job security and
work rule improvements. It also protects the pilots’ retirement and insurance benefits.

ALPA called it “particularly significant” that the pilots and Alaska management reached
the new contract agreement a li
ttle more than a month beyond the last agreement’s April


1, 2013, amendable date. Contracts in the airline industry do not expire; they only
become amendable, and it is common for negotiations to last for years beyond the
amendable date, according to the u
nion. The parties’ full negotiating teams began
meeting in summer 2012.

Alaska’s pilots and management now will begin the process of implementing the new
agreement and preparing to discuss changes needed to accommodate new flight
time rules that
are scheduled to go into effect on January 4, 2014.

“This agreement improved and protected the four cornerstones of our contract

pay, job
security, work rules, and benefits

in a way that allows the pilots to share in our
company’s prosperity and allows

our company to continue to succeed,” said Captain
Chris Notaro, chairman of the Alaska Airlines Master Executive Council of ALPA.

“The pilots and management both approached these negotiations with the mindset that
they wanted to change the paradigm of pro
tracted negotiations. The fact that we were
able to reach an agreement in a timely manner is a product of a mutual commitment to
find terms that would work for both the pilots and for the company,” Notaro said.

NLRB’s Puerto Rico and Milwaukee regions to become subregions of Tampa and
Minnesota regions, respectively

The NLRB is changing its regional offices in Puerto Rico and Milwaukee to subregional
offices assigned to the supervision of the Tampa and Minneapol
is Regional Offices,
respectively, according to a

slated for publication in the
Federal Register

tomorrow. The Board is also revising its Statement of Organization and Functions

Specifically, the Board’s Puerto Rico office will be redesignated as Subregion 24, and the
Milwaukee office will be redesignated as Subregion 30. The changes were prompted by a
decline in unfair labor practice and representation case filings in eac
h of the regional
offices subject to restructuring and the Board’s desire to equalize caseload and case
management responsibilities in all affected offices, according to the notice.

The Puerto Rico and Milwaukee Regional Offices have been headed by a regio
director with full authority for the processing of both unfair labor practice and
representation cases. However, the newly designated subregional offices will now be
headed by an officer
charge, each of whom will report to the respective regional
rectors in Tampa and Minneapolis, the NLRB said. The changes will vest these
regional directors with case
handling authority for the geographical area covered by their
newly designated subregional office. The geographical areas covered by the subregional
ffices, however, will remain the same as when they were designated as regional offices.

The NLRB is also revising its Statement of Organization and Functions to reflect the
addition of Subregions 24 and 30 supervised by their respective regional offices an
d the
elimination of Regions 24 and 30 as regional offices.


Since April 2013, the Board has solicited and received feedback on the proposed
restructuring of these offices. The Board’s decision to restructure operations as set forth
in the notice was infor
med by comments from stakeholders, members of Congress, and
agency employees, the Board stated.

Effective dates.

The changes with respect to the Puerto Rico and Tampa offices will be
effective September 1, 2013. The changes announced above with respect to

Milwaukee and Minneapolis offices will be effective August 1, 2013.

NLRB will have new division with three branches; headquarters offices realigned

The NLRB is restructuring and realigning the location and lines of authority of certain
agency headquar
ters offices to create an independent Division of Legal Counsel that
reports to the Office of the General Counsel, according to a

scheduled for
publication in the
Federal Register

n July 25. The move is intended to centralize the
services of several headquarters’ offices; eliminate duplication of functions; improve the
delivery of services; and streamline, integrate and enhance management functions.

This new Division of Legal Counse
l will have three branches, according to the notice:

Ethics, Employment and Administrative Law Branch
, which will provide
legal counsel and advice in the areas of labor relations, employment, and
personnel law (including claims involving MSPB, FLRA, EEOC,

US Office of
Special Counsel), government contracting, Federal Tort Claims Act matters, and
government and bar ethics.

Contempt, Compliance and Special Litigation Branch
, which will provide
compliance and contempt advice and litigation involving, among ot
her things, the
Bankruptcy Code, the Federal Debt Collection Procedures Act, and compliance
with outstanding court judgments; conduct litigation and provide the agency with
advice and assistance when programs, statutes, or outside proceedings threaten its
ability to carry out its mission; ensure agency compliance with government
regulations that affect its work, such as the Administrative Procedures Act (APA),
statutes relating to agency rulemaking, the Sunshine Act, the Health Insurance
Portability and Acc
ountability Act, and the Right to Financial Privacy Act; and
provide guidance and conduct litigation involving FOIA and Privacy Act issues.

Freedom of Information Act (FOIA) Branch
, which will provide advice on
FOIA and some related Privacy Act issues; han
dle all FOIA requests and appeals
for headquarters and regional offices; and prepare FOIA guideline memoranda
and annual FOIA reports.

When dealing with matters on behalf of the five
member Board or the various Board side
offices, the Division of Legal Co
unsel will coordinate through the Office of the Solicitor.
Lead Technology Counsel will conduct litigation and provide advice and assistance
involving e
litigation matters.

The following Headquarters’ offices will be affected by these administrative change


Labor Relations and Special Counsel moves from the Division of Operations
Management to the Ethics, Employment and Administrative Law Branch of the
Division of Legal Counsel;

Government Ethics moves from the Administration Division and Bar Ethics
moves from the Division of Enforcement Litigation to the Ethics, Employment
and Administrative Law Branch of the Division of Legal Counsel;

Special Litigation Branch, and Contempt Lit
igation and Compliance Branch
moves from Enforcement Litigation Division to Contempt, Compliance and
Special Litigation Branch of the Division of Legal Counsel;

FOIA processing and preparation of FOIA guidance and reporting functions of
the Research and P
olicy Planning Branch move from the Division of Advice to
the FOIA Branch of the Division of Legal Counsel.

FOIA appeals processing on the Board side moves from the Solicitor’s Office,
and FOIA appeals processing on the General Counsel side moves from the

of Appeals in the Enforcement Litigation Division to the FOIA Branch of the
Division of Legal Counsel, with Jennifer Abruzzo as the Chief FOIA Officer for
the Agency;

Lead Technology Counsel moves from the Division of Enforcement Litigation
and wi
ll report directly to the Associate General Counsel of the Division.

These administrative changes are effective August 11, 2013. Because they relate to the
internal management of the agency, pursuant to 5 U.S.C. 553, they are exempted from the
notice and c
omment requirements of the APA, the NLRB said.

General Counsel takes issue with policies banning photography on company
premises, in one of several advice memos recently released

By Lisa Milam
Perez, J.D.

Social media policies that restrict employees from
taking photographs or videos on
company premises may run afoul of the NLRA, according to an advice memorandum
dated March 21, 2012, but only recently released by the NLRB. To the extent the
guidance signals increased Board scrutiny of employers’ efforts to

protect confidential
and proprietary information and guard against liability for improper conduct in our smart
phone age, employers should take heed.

The guidance was one of several advice memos released by the Division of Advice in
recent weeks.


policy provisions.
Giant Food LLC

implemented a social media policy
(without bargaining with the union) that banned employees from photographing or video
recording the company’s facility. Specifically, employees were barred from
photographing or videotaping the employer’s “premises, proce
sses, operations, or


products” that included confidential company
owned information without prior approval.
Such a provision would reasonably be construed as preventing employees “from using
social media to communicate and share information regarding their

Section 7 activities
through pictures or videos, such as of employees engaged in picketing or other concerted
activities,” the NLRB’s associate legal counsel concluded.

The policy also generally prohibited the disclosure

“either externally or to any
uthorized [a]ssociate”

of confidential or “non
public” information about the
company, its employees, customers, or business partners. Without clarification, the
associate general counsel said the phrase “non
public information” was so vague that
s would reasonably construe it to include subjects related to terms and
conditions of their employment. As for the ban on disclosing “confidential” information,
the Board has long recognized that this phrase, without limiting language, would
reasonably be
interpreted to include information concerning working conditions.

A restriction on employee use of the company logo, trademark, or graphics also was
unlawful. Such a prohibition could be seen by employees as prohibiting their use of the
logo or trademark i
n their online Sec. 7 communications, such as electronic leaflets,
cartoons, “or even photos of picket signs containing” the logo. The employer’s
proprietary interest in its trademark would not be “remotely implicated” by employees’
noncommercial use of th
e images while engaged in Sec. 7 activity, the associate general
counsel advised.

Savings clause no cure.

Moreover, a savings clause contained in the social media policy
did not cure the violations of employees’ protected rights. Although the policy expres
stated that it would not be applied “in a manner that improperly interferes with or limits
employees’ rights under any state or federal laws, including the National Labor Relations
Act,” the associate general counsel noted that “an employer may not pro
hibit specific
employee activity protected by the Act and then escape the consequences of the
prohibition by a general reference to rights protected by the Act.”

When certain protected activities are specifically prohibited, employees would reasonably
eve that the general statement of rights set forth in the savings clause did not include
the activities at issue. “Furthermore, with regard to overbroad prohibitions that
reasonably would be interpreted to prohibit protected activities, a general disclaime
r is
insufficient where employees would not understand from the disclaimer that protected
activities are in fact permitted.”

Lawful policies.

On the other hand, a rule prohibiting employees from defaming or
discrediting company products or services did not

run afoul of the Act, since such
conduct is not protected under Sec. 7. Nor did a rule encouraging employees to report
violations of the social media policy to management; it did not expressly restrict
communication or threaten discipline. Moreover, the d
irective would not serve to chill
Sec. 7 activity, at least once the policy’s unlawful terms are stricken, the associate
general counsel reasoned.


Casino access.

In another advice memo released on July 18, the general counsel’s office
concluded that
Maryland Live Casino

did not unlawfully deny access to employees of an
site restaurant that had leased space inside the casino because they were distributing
UNITE HERE literature to casino e
mployees at the employee entrance reserved for the
casino workers. The restaurant employees were “strangers or outsiders” at that site, so
their statutory interests were more closely aligned with the narrower access rights of non
employee organizers than t
hose of off
duty employees.

related advice memo

found the casino did not violate Sec. 8(a)(2) by insisting that any
union seeking access to the casino sign a labor peace agreement requir
ing that it waive its
right to take economic action against the employer, at any of its facilities, for a five
period. Because the casino didn’t unlawfully assist or support any union that did sign the
agreement in exchange for access, and did not dis
criminate among unions by denying
access solely to the union that refused to sign the pact, the general counsel’s office
recommended dismissal of this allegation of the unfair labor practice charge.

Election agreement.

Also last week, the Division of Advic
e released a January 28, 2009
advice memorandum regarding issues arising from an election procedure agreement
(EPA) between
Tenet Healthcare

and the California Nurses Association (CNA).
First, the
Division concluded the agreement did not unlawfully supplant the Board’s role in the
representation election because parties may lawfully agree to limit their election conduct
and to bring any election disputes to arbitration. Nor did the EPA am
ount to unlawful
assistance, in that it required the employer to grant union access to its hospitals and to
provide information about potential bargaining unit members. Such conduct on the
employer’s part would not tend to coerce employees, the associate g
eneral counsel found.

The associate general counsel also advised that the EPA did not infringe on protected
speech by limiting employer communication with employees about the union

specifically, by prohibiting supervisors from discussing the union with e
mployees. The
right of supervisors to express their views about the union is not protected under the
NLRA, the associate general counsel noted. Finally, an interest arbitration provision in
the EPA did not amount to unlawful pre
recognition bargaining; it
did not have the
immediate effect of establishing terms and conditions of employment.

However, the employer did violate Sec. 8(a)(1) by denying antiunion employees the use
of conference rooms while granting all other requests for such access. Such a policy

amounted to unlawful content
based discrimination.

Union role at unrepresented facility.

Levi Strauss & Co
, the associate general
counsel concluded that an employer did not unlawfully as
sist and support a union that
represents employees at one of its facilities by allowing the union to participate
temporarily on a “redesign team” charged with improving operations at an unrepresented
plant. Further, the employer did not improperly express
support for the employer
partnership by suggesting to unrepresented employees that establishing a permanent
partnership (by selecting the union as their bargaining rep) would be good for the