NLRB Update:Recess Appointments and More

January 10, 2012

In recent weeks, there has been a good deal of activity at the National Labor Relations Board (NLRB). During Congress’ winter break, President Barack Obama made three recess appointments to the NLRB. Also, the NLRB found that an arbitration agreement unlawfully barred employees from engaging in “concerted activity,” and recently announced they will delay to April 30 their new requirement that employers post a notification to employees of their right to unionize.

Recess Appointments
On Jan. 4 the administration announced three recess appointments made by President Obama to the National Labor Relations Board.  These appointments have proved controversial since Congress remains in pro forma session, and therefore many have questioned the constitutionality of such an appointment.

Those appointed were: Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor; Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes; and Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE).

It is virtually certain that the legality of these appointments will be litigated.

Arbitration Agreements
On Jan. 6, 2012, NLRB announced their ruling that it is an unfair labor practice to require employees to sign arbitration agreements that prevent them from joining together to pursue employment-related legal claims in any forum, whether in arbitration or in court. The agreement at issue prohibited the arbitrator from consolidating claims, fashioning a class or collective action, or awarding relief to a group or class of employees

The Board found that the agreement unlawfully barred employees from engaging in “concerted activity” protected by the National Labor Relations Act.  The Board emphasized that the ruling does not require class arbitration as long as the agreement leaves open a judicial forum for group claims.  Chairman Mark Gaston Pearce and Member Craig Becker  joined in finding the agreement unlawful. Member Brian Hayes was recused from the case.

Click here to read the decision.

Poster Requirements
NLRB has once again delayed the effective date of its employee rights notice-posting rule to April 30, 2012. The rule was originally set take effect Nov. 14, but was first pushed back to Jan. 31, 2012, and now to April 30, 2012.

Click here for more details on that proposal.