The EEOC in late December sets forth its strategic enforcement plan for 2013-2016. The Commission has identified priorities for national enforcement including issues that would have broad impact, issues involving developing areas of the law, issues affecting workers who may lack an awareness of their legal protections, and issues that may be best addressed by government enforcement. These criteria resulted in the following national priorities.

1. Eliminating Barriers in Recruitment and Hiring. The EEOC will target class-based recruitment and hiring discrimination and facially neutral recruitment and hiring practices that adversely impact particular racial, ethnic, and religious groups, older workers, women, and people with disabilities. These include exclusionary policies and practices, the channelling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes, and the use of screening tools (e.g., pre-employment tests, background checks, date-of-birth inquiries).

2. Protecting Immigrant, Migrant and Other Vulnerable Workers. The EEOC will target disparate pay, job segregation, harassment, trafficking and other discriminatory practices and policies affecting immigrant, migrant and other vulnerable workers.

3. Addressing Emerging and Developing Issues. For example, the Commission recognizes that elements of the following issues are emerging or developing:

(a) Certain ADA issues, including coverage, reasonable accommodation, qualification standards, undue hardship, and direct threat;

 b) Accommodating pregnancy-related limitations; and

 (c) Coverage of lesbian, gay, bi-sexual and transgender individuals under Title VII’s sex discrimination provisions;

4. Enforcing Equal Pay Laws.

5. Preserving Access to the Legal System. These policies or practices include retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges with the EEOC or providing information to assist in the investigation or prosecution of claims of unlawful discrimination, and failure to retain records required by EEOC regulations.

6. Preventing Harassment Through Systemic Enforcement and Targeted Outreach.

For over 50 years, the National Labor Relations Board (NLRB) ruled that an employer may cease honoring union dues-check off arrangements after the expiration of the collective bargaining agreement, without prior bargaining with the union. The theory has always been that the union dues check-off is a contractual provision only, much like the no-strike clause and arbitration provisions of a collective bargaining agreement that expire when the contract expires. All this has now changed with the December ruling of the NLRB in WKYC-TV, 359 NLRB No. 30.

Three Democratic appointees on the Board, all with union backgrounds, ruled that the NLRB has been wrong all these years, and that the union dues check-off should be treated like other provisions of the labor agreement that set forth terms and conditions of employment, which the law has traditionally required be the subject of bargaining prior to changes being made. According to the ruling, before an employer may discontinue this check-off provision, the employer and union must agree to such changes or the parties must first bargain to impasse over the employer’s proposals to eliminate or discontinue the check-off provisions. The Republican appointee on the Board dissents, noting that the NLRB knows well that an employer’s ability to cease dues check-off upon contract expiration has long been recognized as a legitimate economic weapon in bargaining for a successor agreement.

The majority does note two situations in which check-offs can be discontinued by employees outside the normal annual ten-day escape period set forth in union check-off authorization forms. First, employees may revoke their check-off authorizations at any time after contract expiration, assuming no new contact is in effect. Second, the Board states that its ruling does not preclude parties from expressly agreeing in a union contract that, following contract expiration, the employer may unilaterally discontinue honoring a dues check-off arrangement.

The National Labor Relations Act states that the NLRB will order those found to have committed unfair labor practice to take such affirmative action including reinstatement of employees with or without back pay, as well effectuate the policies of the Act. Backpay is generally designed to support that public policy by making employees whole for losses suffered on account of an unfair labor practice. Traditionally, backpay has been rewarded computed on a quarterly basis, with interest. In December, the NLRB rules that in the future employers will be required to compensate employees for adverse tax consequences where the backpay awards cover periods longer than one year. Latino Express, Inc., 359 NLRB No. 44. The Board concludes that, in this manner, employees who receive lump-sum backpay rather than regular income are truly made whole, rather than suffering adverse tax consequences. In addition, the Board will now require the filing of a report with the Social Security Administration allocating back pay awards to the appropriate calendar quarters.

Editor’s Note - Although the Board notes that some courts or agencies have applied similar remedies to avoid adverse tax consequences to claimants, such cases are extremely rare. The WKYC-TV and the Latino Express, Inc. cases, both issued in December, demonstrates the NLRB is expanding claimant and union rights and overruling years of NLRB precedents in the process.

The U.S. Supreme Court ruled during 2010 that the National Labor Relations Board (NLRB or Board) cannot act without a quorum of three members. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). In a decision issued on January 25, the United States Court of Appeals for the District of Columbia Circuit has taken the issue one step further, and ruled that the purported appointments of the last three members of the Board were invalid under the Recess Appointments Clause of the U.S. Constitution. Noel Canning v. NLRB.

The U.S. Constitution provides that the members of the Board are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution, which provides that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… particular officers of the United States…” It was undisputed that the purported appointments of the three members were not made by and with the advice and consent of the Senate, however but the so-called “Recess Appointments Clause” of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.” The case thus turned on whether the Senate was in recess at the time of the period of appointments, plus the issue of whether the vacancies happened during the Recess of the Senate.

 The court finds that the NLRB’s interpretation of “the Recess” would defeat the purpose of the Framers of the Constitution and the careful separation of power structure reflected in the Appointments Clause, and that such appointment structure used the term “Recess” to refer only to the Recess between Sessions, when the Senate simply cannot provide advice and consent. The court finds that the appointment structure would have been turned upside down if the President could make appointments any time the Senate so much as broke for lunch.

The court further found the Appointments invalid as the vacancies did not “happen” during “the Recess.” That is, it is insufficient that the qualifying vacancy “exists” during the recess; it must actually “arise” during the recess. Thus, the President may only make recess appointments to fill vacancies that arise during the recess. Because none of the three appointments were valid, the NLRB lacked a quorum and the NLRB decision was vacated.

The issue in the Noel Canning case will likely end up in the U.S. Supreme Court. The President will argue that he is unable to fulfill his chief constitutional obligation to “take care that the laws be faithfully executed,” or that the interpretation could even pose national security risks. The court answered this issue by stating that if Congress wished to alleviate such problems, it could certainly create Board members whose service extended until the qualification of the successor, or provide for action by less than the current quorum, or deal with the problems in some other fashion, noting that the executive branch has provided for the temporary filling of a vacancy by statute allowing an “acting officer” to perform all the duties and exercise all the powers of the office.

The case is a classic dispute involving the so-called “separation of powers” between the executive, legislative, and judicial branches of our government. In the Noel Canning case, the District of Columbia Circuit ruled in favor of the legislative branch, citing the laws creating the NLRB as well as the Constitutional provisions providing for certain appointments to be only with the “advice and consent” of the Senate.

Since the NLRB is allowed to issue decisions only with a quorum of at least three members, the Noel Canning decision leaves the Board with only one validly appointed member, thus currently shutting it down. The court’s ruling would thus not only invalidate the NLRB’s ruling in Noel Canning, but hundreds of other NLRB decisions issued by the Board for more than a year.

It is hard to tell which branch of government will act first; the courts, in some type of appellate role, or Congress, in some type of amendment to the Labor Act, or some sort of agreement worked out between the parties for new appointments to the NLRB. For example, there is a possibility that the President and the Senate can work out an agreement to have two Democrats and two Republicans on the Board, thus establishing a quorum. Such a two-two split would allow the Board to function normally in non-controversial cases, but prevent controversial rulings. Or, perhaps such an agreement will not be worked out, and the NLRB will simply be shut down for an indeterminate period of time, at least pending an appellate ruling or the Administration’s ability to get the “advise and consent” of the Senate to new appointments.

The question then arises what actions the NLRB can take, in light of the fact that the Board in Washington does not have a functioning quorum. The General Counsel of the NLRB has been delegated authority to take many actions, including the seeking of temporary court injunctions, and presumably the many NLRB regional offices across the country will continue to operate, including holding elections and the possibility of issuing complaints and litigating cases before administrative law judges. But any appeal of such matters to the Board in Washington, and enforcement of such decisions by the courts may be postponed until a quorum at the Board is established.

The same concept would seem to apply to representation elections. That is, a union could file an election petition and an election could be held and the question would arise whether the election could be certified where an appeal of the representation issue was made to the NLRB in Washington. It likely could not be so certified under the court’s ruling. The ruling may also provide another legal basis for attacking the Board’s “quickie election” rule, as one of the members making the rule was a recess appointment.

Some initial answers to the above questions quickly followed the ruling, as White House Press Secretary Jay Carney has announced that the ruling would not affect the Board’s operations, referring other questions to the Justice Department. NLRB Chairman Mark Pearce has announced the Board would keep conducting its business, noting that the rule applies only to a single case in a single circuit, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. Thus, one interpretation of the current situation is that the Board will continue to carry out its normal functions, and simply ignore the ruling. The issue is more complex than that, however, as virtually all NLRB final rulings can be appealed to the District of Columbia Circuit, the court that issued the Noel Canning ruling. Therefore, if the ruling stands, every NLRB final ruling could be set aside by an appeal to the District of Columbia Circuit, at least until the NLRB quorum is legally established.

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