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National Labor Relations Act
Hawaii One Of The Worst States For Businesses, Again

This morning, the Star-Advertiser reported that Hawaii has made yet another list of worst states for businesses.  This time, the list was compiled by the American Economic Development Institute (AEDI) and Pollina Corporate Real Estate, Inc.  In this list, Hawaii was ranked as the 10th worst state (41 out of 50) for doing business.  The Advertiser also noted that the AEDI study examined 32 factors over which “states have control, relative to becoming pro-business.”  (The AEDI website did not expound on what 32 factors were examined for this study.)

This unfavorable ranking for Hawaii is probably not a surprise for a lot of people.  After all, Hawaii has consistently ranked poorly on similar studies and lists.  For example, last year, ChiefExecutive.Net (and Chief Executive magazine) ranked Hawaii as the 10th worst state for doing business.  Similarly, Entrepreneur.com also noted that Hawaii ranked at the bottom of the list in a study conducted by Thumbtack.com’s Small Business Survey.  Thumbtack.com gave Hawaii a failing grade of “F” for doing business.

I realize this blog entry is different from the types of entries I usually write, but I wanted to highlight Hawaii’s poor rankings in “worst states for business” type studies in light of the fact that we are currently at the end of another legislative session.  This year, many of the anti-employer bills already died, but there is still some pending legislation that would have an adverse impact on businesses, such as bills dealing with (1) successor employers and (2) the minimum wage.  (For further discussion on pending legislation, please see this blog post here:  HEC Legislative Digest Updated.)

Therefore, this blog post is a call-to-action for businesses to remind their legislators that Hawaii has consistently ranked among the worst states for businesses, and that we cannot afford further legislation that would hamper the ability of businesses to operate in Hawaii.  When businesses cannot prosper, the economy is adversely affected.  Interestingly, an announcement by AEDI on their website noted that nine of the worst states all have high budget deficits for fiscal year 2013, and that Hawaii had a budget deficit of $500 million.

If you want to get in touch with your legislature about any issues pertaining to the 2013 legislative session, you can find their phone numbers and email addresses here:  Legislative Directory.

You can view the original article on the AEDI website here:  AEDI Ranks Hawaii 41 out of 50 For Doing Business.

 
NLRB Will Appeal Canning Decision To US Supreme Court

Just today, the NLRB announced that it will file a petition for certiorari for the Canning v. NLRB case, where the DC Circuit invalidated three appointments by President Obama to the NLRB.

The NLRB issued the following statement on its website:

The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid.  The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013.

Earlier this year, I wrote about the Canning decision and how the DC court ruled that the NLRB could not operate because it did not have a quorum of members.  In response, the NLRB stated that it would continue to operate.  You can read the original DC Circuit’s decision here:  Canning v. NLRB, and my blog post on the DC court’s decision here:  NLRB Cannot Operate.

You can view the NLRB’s office News Release on their website here: NLRB Canning News Release.

 
NLRB Member Terence Flynn Resigns

Terence Flynn has resigned from his position as a member of the National Labor Relations Board (“NLRB”) in light of findings that he leaked sensitive board information to outside lawyers.  Flynn was a recess appointment of President Obama, and was one of two republican members of the Board.  He (quietly) tendered his resignation to the Board and President Obama over the Memorial Day Weekend.

According to the NLRB’s press release, Flynn’s resignation will become effective July 24, 2012.  Cases that have been assigned to Flynn are in the process of being reassigned.  The other Board members have also stated that they will “immediately resume deliberations and processing of cases.”

You can read the NLRB’s press releases regarding Flynn’s resignation here and here.

 
D.C. Court Strikes Down NLRB’s New “Quickie Election” Procedures

On May 14, 2012, a federal district court in Washington, D.C. struck down the NLRB’s new Quickie Election (or “Ambush Election”) procedures based on the conclusion that the the NLRB failed to assemble a quorum of members when it made its “final vote” on the proposed new rules.

Under the National Labor Relations Act and a Supreme Court case called New Process Steele, three (or more) members of the Board are required to constitute a quorum for Board action.  In this case, only two Board members participated in the final vote to approve the new Quickie Election procedures.  Therefore, the D.C. court concluded, the final vote on the new Quickie Election procedures was made without a quorum.

In creating the “Woody Allen Rule,” the D.C. court noted:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to satisfying a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters – even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal quote in question, the Court must hold that the challenged rule is invalid.

Following the court’s decision, the NLRB issued a press release stating that it will temporarily suspend the new Quickie Election procedures.  The Acting General Counsel has also instructed regional directors to revert to the old representation election procedures.

It will be interesting to see whether the NLRB appeals the court’s decision, or just tries to establish a quorum now that it has five sitting members, and vote again on the new representation election procedures.  Either way, the legal battles are sure to continue.

You can read the D.C. court’s decision here and the NLRB’s press release here.

 
NLRB General Counsel Issues Guidance Memo On “Quickie Election” Procedures

On April 26, 2012, the General Counsel (“GC”) of the National Labor Relations Board issued a Guidance Memorandum on the NLRB’s new “Quickie Election” procedures, which are set to take effect on April 30, 2012.  In the memorandum, the GC first “justified” the NLRB’s need to make changes to the way representation elections are conducted, and then outlined the major changes to the process.

In a nutshell, the changes will speed up the way representation elections are conducted, which in turn, will hinder employers’ abilities to oppose union representation campaigns.  Some people – including the U.S. Chamber of Commerce – have referred to these new procedures as “ambush” elections, because of the way that employers could be prevented from effectively challenging a union representation campaign.

For instance, the new rules eliminate the current restriction that elections cannot be held until at least 25 days after a direction of election.  In addition, the NLRB has amended – or should I say, taken away – the ways that employers can challenge whether representation elections are even appropriate or whether certain individuals should even be voting in the elections.  The NLRB has also amended – or again, should I say, taken away – employers’ rights to appeal decisions by hearing officers on pre-election rulings.  Finally, the NLRB has eliminated the practice of giving parties the right to file post-hearing briefs for pre-election hearings, and instead, has given the hearing officer discretion on whether the parties should be filing briefs.

In addition to the GC’s memo, the NLRB has also issued a set of FAQs regarding the new election procedures.

Overall, these changes are certainly bad for employers.  The U.S. Chamber has lodged a legal challenge to the new representation election procedures, but has not yet received a ruling from the court.

You can read the GC’s memo here, and the NLRB’s FAQs here.  Also, prior blog posts on this topic can be seen here and here.