• Three Republican Senators put forward legislation to prohibit the NLRB from drawing on government funds to issue decisions and carry out activities that require a quorum of three or more members. The legislation follows a January 2013 decision by the U.S. Court of Appeals for the District of Columbia, which held that President Obama’s recess appointments of NLRB Board members were unconstitutional. Without these recess appointees, the Board lacks a quorum. Following the D.C. Circuit’s Noel Canning decision, NLRB Chairman Mark Gaston Pearce, the only Senate-confirmed Board appointee, issued a statement saying that the Board would continue to decide cases while awaiting resolution of the recess-appointments issue by other Courts of Appeals and potentially the U.S. Supreme Court.
  • Congressman Rand Paul (R-Texas) put forward legislation that would amend the NLRA to prohibit union security clauses from being included in labor contracts. Union security clauses force employees to pay union dues as a condition of employment. Twenty-four states have passed so-called “right to work” laws that prohibit the enforcement of union security clauses. Winston & Strawn’s briefing on Michigan’s recent right to work law is available here. While the NLRA permits individual states to enact right to work laws, Representative Paul’s legislation would effectively qualify as a national right to work law. The bill currently has 10 Republican co-sponsors.
  • A group of labor unions filed a lawsuit in the Eastern District of Michigan alleging that the state’s new “right to work” law is unconstitutional. The Michigan law, enacted in December, outlaws union security agreements, which require an employee to pay union dues as a condition of employment. The challengers, which include the Michigan State AFL-CIO, allege the Michigan law contravenes the Constitution’s supremacy clause, because the law prohibits union security agreements that the Labor-Management Relations Act and the NLRA protect.
  • In response to the D.C. Circuit’s Noel Canning decision, which held that President Obama’s NLRB recess appointments were unconstitutional, the President nominated two NLRB recess-appointees, Richard F. Griffin Jr. and Sharon Block, to be confirmed by the Senate. While some Senate Democrats cheered the President’s action, several House Republicans, including Speaker John Boehner, wrote a letter to the NLRB’s Chairman, Mark Gaston Pearce, calling for the Board to cease all business until the Supreme Court can rule on the constitutionality of the recess appointments.
  • Republicans in the House of Representatives and the Senate introduced legislation to abolish preferential treatment for union contractors working on federal government-paid construction projects. The preferential treatment for union contractors was created by an executive order issued by President Obama during his first term, which mandated that agencies consider using project-labor deals to set compensation and site rules for federal construction jobs.
  • In Texas, state legislators introduced measures in the House and Senate that would require union elections to be held by a secret ballot. The bills would further require that unions obtain a majority of votes from employees affected by the election—rather than a majority of votes from those voting in the election—to win representation. Texas attorney general Greg Abbott said the proposed measures would help protect Texas’ “right to work” law, which prohibits union contract provisions that require all employees to pay union dues as a condition of employment. The Texas AFL-CIO, however, argued that the measures were pure “partisan political attacks on labor unions.” In addition, union leaders argued that the measures would solely affect unions representing police and firefighters, because the state’s remaining unions are subject to federal labor laws.
  • In Virginia, the state legislature passed two bills that seek to limit the influence of unions. First, H.B. 1385 provides that employees shall have the right to cast secret ballots in union elections. Second, H.B. 1931 provides that employers shall not be required to disclose to “third parties” particular employee information, including shift schedules and employee contact information. Virginia’s Republican Governor Bob McDonnell is expected to sign the bills into law. Democratic legislator Mark Sickles stated that the bills have no practical impact because federal law already includes these protections. Virginia AFL-CIO president Doris Crouse-Mays asserted that the bills are preempted by the NLRA.
  • NLRB Acting General Counsel Lafe Solomon released a guidance memorandum instructing regional offices on how to calculate the tax liability an employee will incur when receiving a back pay award in a lump sum and how to inform the Social Security Administration of an employee’s back pay award. The memorandum comes in response to the NLRB’s recent decision in Latino Express Inc., 359 N.L.R.B. No. 44 (2012), where the Board ruled that employers must compensate complainants for the adverse tax consequences of receiving a back pay award in a lump sum, and must ensure the Social Security Administration properly allocates the award over the calendar periods for which the award corresponds.