Human Resource & Labor News
www.agc.orgAugust 19, 2010 / Issue No. 4-10
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On the Inside
Labor Relations
AGC Persuades Corps of Engineers to Withdraw PLA Requirement
Year-to-Date Collective Bargaining Results in Low and No Increases in Wages and Fringe Benefits
AGC Union Contractors Exchange Views with Carpenters and Operating Engineers General Presidents at New England Regional Meeting
NLRB Finds Regional Carpenters Council was Bound to National Construction Agreement and Plan for Settlement of Jurisdictional Disputes
Supreme Court Invalidates Decisions of Two-Member NLRB; Senate Confirms Two New NLRB Members
Legal Compliance
DOL Revises Interpretation of "Clothes," Changing Time Considered Compensable
Labor Department Clarifies Definition of "Son or Daughter" in FMLA
Labor Department Revises Child Labor Law, Leaves AGC-Supported Apprentice Exemption in Place
DOL Issues Guidance on Breaks for Nursing Mothers Under the FLSA
Homeland Security Department Revises Rule on Electronic Processing and Storage of I-9 Forms
OFCCP Plans to Strengthen the Affirmative Action Obligations Related to Individuals with Disabilities
Employee Benefits
Temporary Pension Relief Legislation Enacted
COBRA Subsidy Expires; Extension Seems Unlikely
HR Professional Development
AGC HR and Training Conference to Highlight Link between Coaching, Workplace Performance and Corporate Results
Supreme Court Invalidates Decisions of Two-Member NLRB; Senate Confirms Two New NLRB Members

On June 17, the U.S. Supreme Court issued an opinion in New Process Steel v. NLRB holding that the National Labor Relations Board lacked authority to issue decisions from the end of 2007 to March 2010, when the five-member Board had only two members.  The decision effectively invalidates nearly 600 Board decisions issued during the 27-month period.

On December 20, 2007, when the Board had one vacancy and anticipated two more, it delegated its powers to a group of three.  On December 31, 2007, one member of the three-member group's term expired, but the remaining two members - Democrat Wilma Liebman and Republican Peter Schaumber -- proceeded to issue decisions as a two-member quorum of a three-member group.  This continued until President Obama made two recess appointments  -- controversial Democrat Craig Becker and Democrat Mark Pearce - in March 2007.

The Court held that the National Labor Relations Act, which provides that "three members of the Board shall, at all times, constitute a quorum of the Board," requires that the Board continuously maintain a membership of three in order to exercise the delegated authority. 

The decision is highly significant to the litigants in the cases decided during the 27-month period, and the fate of those cases is uncertain.  However, the decision is not likely to have a significant impact on the construction industry as a whole, given that the two-member Board - which represented opposing parties and which was cognizant of the possibility of decisions being overturned - avoided deciding highly controversial, high-impact cases.

Less than a week after release of the Court's decision, on June 22, the Senate -- in a surprising turn of events - confirmed Pearce for a regular appointment along with Republican Brian Hayes.  The Senate took no action on Becker.

This gives the Board the following composition:

  1. Chairman Liebman: Democrat - confirmed through August 2011
  2. Member Schaumber: Republican - confirmed through August 2010
  3. Member Pearce: Democrat - confirmed through December 2013
  4. Member Hayes: Republican - confirmed through December 2012
  5. Member Becker: Democrat - recess appointment that expires at the end of 2011

With the impending expirations of Liebman's and Schaumber's terms and the general counsel vacancy created when Bush-appointee Ronald Meisburg stepped down on June 20, it is likely that further political jockeying is in store.
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