On August 30, 2011, with the then-one Republican member dissenting, the National Labor Relations Board promulgated a rule that would require for the first time that all private employers in the country post a notice advising employees in detail of their statutory rights to unionize and engage in union activities.  Employers who fail to post the notice would be guilty of a new, Board-created unfair labor practice, could lose the protection of the National Labor Relations Act’s six-month statute of limitations, and could have that failure be considered as evidence against them in cases involving other unfair labor practices.  The posting requirement is not yet effective, due to litigation brought against the Board challenging its authority to promulgate this rule. In a case brought by the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, and others, the United States District Court for the District of Columbia held that the Board has the authority to require all employers to post the notice.  It struck down the penalty provisions insofar as they would be blanket rules, but permitted the Board to apply them on a case-by-case basis.  However, soon thereafter, in a case brought by the U.S. Chamber of Commerce, the United States District Court for the District of South Carolina held that the Board lacked statutory authority to promulgate the notice-posting rule.  Both district court decisions have been appealed.  The D.C. Circuit enjoined enforcement of the rule pending its decision, and heard argument on September 11, 2012.  The Fourth Circuit heard oral argument on March 19, 2013 in the Board's appeal from the South Carolina district court’s decision.  Maury Baskin of Venable LLP, who argued for the D.C. plaintiffs, and SEIU Associate General Counsel Walter Kamiat discuss the issues and give their assessment of the arguments in the two courts of appeals.

Featuring:

• Mr. Maurice Baskin, Partner, Venable LLP
• Mr. Walter Kamiat, Associate General Counsel, Service Employees International Union
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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This case involves an epic clash between two federal statutes enacted many decades ago.  On one side is the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms.  On the other side is the National Labor Relations Act, which protects the right of employees to engage in protected concerted activity.  The clash is over mandatory arbitration agreements that waive the right of employees to file class or collective actions under federal or state employment laws.  The U.S. Supreme Court has repeatedly upheld these waivers in arbitration agreements under the Federal Arbitration Act.  However, the National Labor Relations Board held in D.R. Horton that requiring such a waiver in a mandatory arbitration agreement is an unfair labor practice because it restricts the right of employees to engage in concerted activity affecting their working conditions.  In so holding, the NLRB rejected the contrary opinion of its former General Counsel.  The employer in that case appealed to the Fifth Circuit, which held oral argument on February 5, 2013.  Meanwhile, numerous other federal and state courts around the country have rejected the D.R. Horton reasoning in litigation involving the enforceability of class waivers in arbitration agreements.

Our experts offered their perspectives on the oral arguments and on the merits of the case, and answered questions.

Featuring:

• Mr. Ron Chapman, Jr., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
• Hon. Ronald Meisburg, Partner, Proskauer Rose LLP; former Member and General Counsel, National Labor Relations Board
• Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching the Executive Branch Review Project, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide objective resources that identify major government activity, and will provide a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach. The first component of this project is a new blog dedicated to highlighting action or inaction by the executive branch, http://www.executivebranchproject.com/.

To kickoff this new endeavor, U.S. Senator Michael S. Lee (Utah) and Federalist Society founder and Vice Chairman David M. McIntosh discussed the project and provided their perspectives on the use of executive power.

Featuring:

• Hon. Michael S. Lee, United States Senate, Utah
• Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice Chairman, The Federalist Society
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which means the Board lacks a quorum to conduct business.  The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these unusual circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The government has not yet decided whether to appeal the D.C. Circuit's decision, and the NLRB has stated that it will continue to conduct business as usual. Meanwhile, the Noel Canning decision is being invoked to challenge NLRB decisions in dozens of other cases around the country. On this previously recorded conference call held in February, the speakers discuss the Noel Canning case itself, whether the Board can continue to function without Supreme Court resolution of the validity of the recess appointments, and what the decision means for current and past recess appointments to other agencies.

Featuring:

• John P. Elwood, Partner, Vinson & Elkins LLP
• Hon. Howard M. Radzely, Boeing, Inc.
• Moderator: Mrs. Rachel L. Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce
• Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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