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With all five members finally in place, the National Labor Relations Board faces a packed agenda for 2014, although a number of unknowns, including a potential landmark U.S. Supreme Court decision, are looming.
The issues before the board provided fodder for a recent American Bar Association program, “National Labor Relations Board Update: What’s on the NLRB’s Agenda in 2014.” The 90-minute program covered various topics that the board will likely take up and featured attorneys representing employers and unions as well as the NLRB’s newly appointed general counsel.
“This is an extraordinary group now confirmed as board members,” said Richard F. Griffin Jr., the new general counsel. Griffin, a former board member, was sworn in on Nov. 11.
“They really do get along with each other,” he continued. “They are collegial, and they really do have respect for each other.”
This was not always the case with the NLRB, an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative.
From December 2007 until June 2010, the board operated with only two members, and until this summer, it had not had five Senate-confirmed members in about a decade. A compromise between the White House and a bipartisan group of senators allowed five new members to be confirmed on July 30.
One big unknown is whether the earlier recess appointments of Griffin and two others to the board in 2012 by President Barack Obama were legal. The NLRB is appealing a lower court decision that effectively ruled they were not. Overall, around 135 NLRB cases could be affected. The U.S. Supreme Court is scheduled to hear oral arguments on Jan. 13 on a NLRB case that tests Obama’s use of his recess appointment power.
Panelist Tanja L. Thompson, a shareholder at Littler Mendelson P.C. in Memphis, Tenn., said the case before the high court, NLRB v. Noel Canning, could have a significant impact on the new board.
An attorney who represents employers, Thompson said she was “not sure if the new board is very helpful from the employer perspective,” given its breakdown of three Democrats and two Republicans.
Gwynne A. Wilcox, a partner at Levy Ratner P.C. in New York and associate general counsel of the local union 1199SEIU, said from the union perspective, “we are very excited that there is a full board.”
She noted that the five board members have more than 140 years of collective “real-life experience” in these issues, adding that, “I think we feel energized on both sides.”
Richard A. Williams Jr., a principal at the R.A. Williams Law Firm P.A. in St. Paul, Minn., discussed some of the trends and cases affecting employees in general, such as defining managers and independent contractors. Many employees, he said, “have been told they are independent contractors. They may not be.”
The program was presented by the ABA Section of Labor and Employment Law and the ABA Center for Professional Development. Steven D. Wheeless, a partner at Steptoe & Johnson LLP in Phoenix, moderated the panel discussion.