NLRB argues DC Circuit’s quorum ruling “erroneously” departs from Supreme Court precedent, seeks rehearing

The National Labor Relations Board filed a Petition May 28, 2009, in the US Court of Appeals for the District of Columbia Circuit for a rehearing of Laurel Baye Healthcare. In its Petition, the Board argues that the decision is in conflict with decisions of the Seventh Circuit and the First Circuit, which hold that the plain meaning of Section 3(b) authorizes a two-member quorum of a three-member group to issue Board decisions, even when, as here, the Board has only two sitting members. Further, the Board claims the decision erroneously departs from principles that the Supreme Court has previously recognized should govern the construction of the quorum and vacancy provisions applicable to federal administrative agencies. The previous decision was issued May 1, 2009.

Background. In Laurel Baye Healthcare, the court vacated and remanded the Board's Decision and Order, finding that the Board—composed of only two members instead of the required three—was not properly constituted and did not have the authority to issue the order. The court reasoned that the Board's interpretation of NLRA, Section 3(b) violated the "principal of statutory interpretation" by steering clear of various portions of the statutory language. The interpretation by the Board, noted the court, seemed to ignore the requirement that the quorum requirement of at least three members be satisfied "at all times."

The court found that the Board seemed to treat its group quorum requirements and those of a delegee group as mutually exclusive—which was not the case. The language of a delegee group quorum requirement did not do away with the Board's requirement of at least three members; rather, it stated that "only the quorum of any three-member delegee group shall be two." Thus, the court stressed, the Board quorum requirement of a three-member panel still had to be satisfied, irrespective of whether the Board's authority was delegated to a group of its members.

The court concluded that, while the language of the two quorum provisions (those used by the Board to advance its argument) allows for a three-member Board to delegate its powers to a three-member group, and this delegee group can act with two members, it can only do so as long as the Board quorum is "at all times" satisfied—which was not the situation presented in this case. Therefore, in finding that the Board was not properly constituted when it issued its decision, the court granted Laurel Baye's Petition and vacated the decision. The case was remanded to the Board for decision at such time as a proper quorum is established.

Sotomayor's employment decisions under scrutiny

The recent nomination by President Obama of Sonia Sotomayor as his pick for US Supreme Court Justice has sparked debate on whether her judicial “tendencies” fall more to the left, right, or somewhere near the center. From an employment law perspective, her opinions have often sided with the plaintiffs, and this may have some employers concerned that her vote may tip the scales against them.

Sotomayor’s opinions have dealt with race, sex, age and disability discrimination. In particular, look to her reasonings in:

• Norville v. Staten Island University Hospital, 196 F.3d 89 (2d Cir. 1999);
• Cruz v. Coach Stores, 202 F.3d 560 (2d Cir. 2000);
• Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000);
• Malesko v. Correctional Services Corp., 229 F.3d 374 (2000);
• Raniola v. Bratton, 243 F.3d 610 (2d Cir. 2001);
• Hankins v. Lyght, 441 F.3d 96 (2d Cir. 2006);
• Washington v. County of Rockland, 373 F.3d 310 (2d Cir. 2004); and
• Ricci v. DeStefano, 530 F.3d 87 (2008), (an unsigned opinion now awaiting the Supreme Court's final determination due in June).

A comprehensive review of these and other decisions has been prepared by Akin Gump’s Tom Goldstein and a group of summer associates. The resulting summary of civil cases, including several noteworthy rulings, are posted on ScotusBlog.

Pyett line of cases promises wide umbrella

On April 1, 2009, the US Supreme Court issued its decision in 14 Penn Plaza LLC v Pyett, holding that unions, through arbitration provisions in collective bargaining agreements, may waive the rights of individual employees to litigate discrimination claims. A little over one month later, the first cases comprising the future Pyett line were released. From these two decisions, it seems likely that lower courts hearing mandatory arbitration cases will cite the Supreme's decision in Pyett in support of their holdings, regardless of whether the facts suit the rather unique circumstances underlying the Pyett decision.

In Mathews v Denver Newspaper Agency LLP, the District Court for the District of Colorado found that an employee's right to litigate his retaliation and discrimination claims was waived and cited Pyett for the proposition that discrimination claims are waivable through grievance arbitration. Unlike Pyett, the plaintiff had the opportunity to litigate his claims, but instead opted for binding arbitration, as his CBA allowed. In essence, the plaintiff himself waived his right to litigate his claims. The waiver did not stem from the CBA, as in Pyett, but rather from the plaintiff's own choice.

The District Court for the Southern District of New York has also weighed in. In Kravar v Triangle Services, Inc, the court cited Pyett for the proposition that CBAs which effectively preclude plaintiffs from raising discrimination claims in any forum cannot be upheld. The Supreme Court's decision in Pyett expressly declined to consider whether the CBA in that case acted as a substantive waiver of the plaintiff's ADEA rights; although the provision allowed the union to block arbitration, the plaintiffs failed to brief the issue. The Southern District faced exactly that question. The CBA in question stated that all discrimination claims would be settled through arbitration, but only if the union requested it. The union decided not to arbitrate, and in so doing, blocked the plaintiff's substantive rights. If anything, this case suggests that the questions raised by Pyett will continue to fuel debate, until the Supreme Court rules on this final point.

The Court may not get the chance, however. The Senate version of the Arbitration Fairness Act includes a provision that would expressly overturn the US Supreme Court’s ruling in Pyett. Russ Feingold, the measure's author, has said that the proposed bill would "make it clear that such agreements may not waive employees’ rights to take federal and state statutory or constitutional claims to court.”

Hobby Lobby bucks economic trend

Hobby Lobby, a retail chain of more than 400 arts and crafts stores, has increased the wages of full-time hourly employees to a minimum of $10 per hour, more than 52 percent above the national minimum wage of $6.55 per hour. This increase and other pay raises for full-time hourly employees earning up to $13 per hour will raise the pay of more than 6,900 employees, some by up to nearly $600 per month. “Our employees are the backbone of our company, and we believe that giving them the opportunity to share in our success is the right thing to do,” said David Green, CEO and founder. It’s not the first time Hobby Lobby has bucked the trend in trying times: last year the company gave raises to offset cost of living increases when gas prices rose.

RIF by bumper sticker

Workplace Prof blogger Jeffrey M. Hirsch has a new hypo for his employment law course, he notes, in the form of a company president who claims to have selected workers for layoff by walking through the company parking lot and finding employee cars whose bumpers have Obama stickers on them. “I can't think of a more fair way to approach this problem,” the boss writes. “They voted for change, I gave it to them.”

When a staffer switches genders

While most employers will likely never have to deal with a transgender worker, gender identity has become the latest battleground issue in employment discrimination law, which no employer can ignore, reports CNNMoney.com. Quoted in the article, Ramapo College law professor Jillian Weiss, who discusses these issues in her Transgender Workplace Diversity Blog, stresses workplace civility. It is not about trying to convince your workforce to endorse a transgender lifestyle, she said, but employers must create a work environment that is tolerant and respectful of all employees.