NLRB Chairman Wilma Liebman and Acting General Counsel Lafe Solomon have submitted letters to a House subcommittee in response to witness testimony criticizing recent activity of the Board and the Acting General Counsel. The testimony was given at a February 11th hearing on “Emerging Trends at the National Labor Relations Board” before the House Subcommittee on Health, Employment, Labor and Pensions. (View a webcast of the hearing and related documents, including the testimony, here.)

Chairman Liebman said in an eight-page letter that she felt “obliged” to address what she characterized as the “main thrust” of the critical testimony, i.e., “that the Board is somehow overreaching its statutory authority, invading the province of Congress and abandoning long-established institutional norms.”

Chairman Liebman defended the Board’s (1) right to act on important issues even when there are vacancies and recess appointments on the Board, (2) authority to shape federal labor policy in the absence of Congressional involvement, and (3) discretion to request amicus briefs in certain cases, noting that such action should not be considered “indirect rulemaking.”

According to Chairman Liebman, the three “emerging trends” at the Board are:

First, greater productivity in decision-making, reflecting the Board’s new quorum and with it, the ability to decide cases and to avoid deadlock. Second, greater transparency and public participation in its decision-making – perhaps at the price of greater controversy, but with a corresponding gain in the fairness and quality of the Board’s decision-making process. Third, a willingness to take carefully considered steps to keep the National Labor Relations Act vital, as exemplified in the Board’s unanimous decision to begin awarding compound interest on backpay awards to employees victimized by unfair labor practices – more than 20 years after the Board was first urged to adopt that remedial change.

In his letter, Acting General Counsel Solomon sought to explain the “genesis and rationale” of four initiatives that were discussed by witnesses at the hearing:

  • GC Memorandum 11-05: Urging the Board to defer to an arbitrator’s decision or grievance settlement as the resolution of an unfair labor practice charge only if the arbitrator or parties had the authority to, and did, consider the statutory claim under applicable Board law. It was necessary to establish a more “stringent standard” than the current Spielberg/Olin doctrine, the Acting General Counsel explained, because the D.C. Circuit has disagreed with the Board’s approach on post-arbitral deferral and has refused to enforce the Board’s decisions. (Read Proskauer’s blog post on GC Memo 11-05.)  
  • GC Memoranda 10-07 and 11-01: Emphasizing the need for more effective remedies for unlawful discharges and other violations that “nip-in-the-bud” union organizing activities, Solomon stated that the initiative is aimed only at “serious” violations of the Act which significantly impact an organizing effort. The initiatives are necessary, in his view, because (1) such violations affect the “entire workforce” -- not just the direct victim of the violation, and (2) terminated employees may become unavailable for reinstatement if too much time passes between a violation and the remedy, thus preventing restoration of the status quo and protection of employee rights.  
  • GC Memorandum 11-04: Instructing Regional Offices to use default language in informal settlement agreements to more effectively and efficiently restrain “recidivist violators”, this initiative was pursued because, without the default language, the Agency’s only recourse for a settlement breach was to reinstitute litigation. Now, with the default language, a breach of the settlement agreement results in an admission of the allegations and consent to “the entry of a Board order and enforcing court judgment.”  

There is no doubt that opinions are sharply divided over some of the actions of the Board and the Acting General Counsel, but this is nothing new. The NLRB has long been a lightening rod for criticism of the "ins" by the "outs". What is new is the striking amount of activity undertaken in the relatively brief period that the new Obama Board majority and the Acting General Counsel have been in office. This is the product of the high expectations of the labor movement and the fact that two members of the current Board majority, Chairman Liebman and Member Craig Becker, have terms that will be ending this year. Adding to the mix are the changes and uncertainties in both the political and bugetary situations. All of this adds up to a very busy year for the NLRB as well as labor and human resource professionals.