CDW Letter

CDW Members:

I want to alert you to some recent developments, as CDW has had a busy September, and share with you a comprehensive update on our litigation efforts, which you will find below my signature line.

On Wednesday, September 19, CDW filed our opening brief in Noel Canning v. NLRB.  As you may remember, the Noel Canning case is our pending challenge to President Obama’s unlawful recess appointments to the NLRB.  The case is before the U.S. Court of Appeals for the DC Circuit (known as the DC Circuit).

Last week, we also had oral argument before the DC Circuit in CDW’s challenge to the NLRB’s notice posting rule.  Our counsel, Maury Baskin of Venable, did an outstanding job.

In the last few weeks, CDW has decided to move forward with amicus briefs in two new cases, Banner Health Systems and Huntington Ingalls Inc. v. NLRB.  We will be filing our briefs in both cases in the next few months.  More details on those cases and other pending litigation are set forth in the update below.

Finally, we are planning a post-election presentation for members on the NLRB agenda for 2013 and beyond.  We will let you know details about the presentation in the coming weeks.  In the meantime, please don’t hesitate to contact us with any questions.


CDW Litigation Update – September 2012

CDW’s Challenge to the NLRB’s Notice Posting Suit: The US Court of Appeals for the DC Circuit heard oral arguments in CDW’s challenge to the NLRB’s notice posting rule on September 11.   Each side had 15 minutes.  We expect a decision from the DC Circuit as early as mid to late November.

CDW appealed the case to the DC Circuit following a decision by a DC federal district court judge finding that the NLRB had the authority to require employers post the notice, but limiting the Board’s ability to automatically sanction employers for noncompliance (but the court said the NLRB could impose sanctions if it found after an investigation that the employer’s failure interfered with employees’ NLRA rights).  Back in the spring, the DC Circuit granted our request for an injunction preventing the NLRB from enforcing the rule while our appeal is pending.

Keep in mind the US Chamber of Commerce has mounted a separate challenge to the notice posting rule.  A South Carolina federal district court in that case found the NLRB could not require the poster.  The NLRB appealed the decision to the US Court of Appeals for the 4th Circuit.  We do not expect a ruling from the Fourth Circuit until late Spring/Summer 2013.

You can find CDW’s comments and briefs on the NLRB’s notice posting rule here.

CDW’s Challenge to the NLRB’s “Ambush” Election Rule: On August 7, the NLRB appealed to the US Court of Appeals for the DC Circuit a DC federal district court decision striking down the “ambush” election rule as well as the district court’s rejection of the Board’s motion requesting that the court reconsider its initial decision.  The district court agreed with CDW that the rule was invalid because NLRB Member Hayes had not participated in the vote to issue the rule.  Under Supreme Court precedent, the NLRB must have 3 members to issue decisions or promulgate rules and without Hayes, the Board only had two members at that time.

The DC Circuit has yet to set a briefing schedule.  The earliest we would expect a ruling from the DC Circuit is late Spring/Summer 2013.

You can find CDW’s comments and briefs on the NLRB’s ambush election rule here.

CDW’s Challenge to the Unlawful Recess Appointees:  CDW filed its initial brief in Noel Canning v. NLRB on September 19.  The Noel Canning case, which is pending before the US Court of Appeals for the DC Circuit, challenges President Obama’s unlawful appointments to the NLRB, which the President made in January of this year.

The briefing on the case is scheduled to conclude in January 2013.  The court has yet to schedule oral arguments.  We do not expect a ruling until late Spring/Summer 2013.

The issue also continues to be raised in other cases in other US Courts of Appeals.  While to date we have not filed amicus briefs in any of these cases (we did file briefs in some district court cases), we may do so in the future.

You can find CDW’s briefs on this issue here.

CDW Amicus briefs:  


Board Member Sharon Block has suggested several times this summer that the Board may issue its decision in Roundy’s in the near future.  The decision could set new standards for physical and electronic access to employer property (such as access to employer email systems) by non-employee union organizers.  As you may remember, the case involves a grocery store that used a nonunion construction company to make renovations.  The union argued that the store must allow union agents access to the store’s private property for union run boycotts because the store had allowed charitable organizations, such as the Salvation Army and the girl scouts, to access the property (i.e., the union argued it would be unlawful discrimination for the store to bar the union access where it had granted access to other organizations).  CDW filed a brief in Roundy’s on January 7, 2011, arguing there is fundamental difference between consumer boycotts intended to harm the business and the presence of organizations that benefit the business.  Furthermore, CDW contended that the Board should not require employers to allow nonemployee union agents to trespass on private property for the purpose of harming the employer’s business, under any circumstances.  Our brief is available here.

Kindred Healthcare v. NLRB

In Specialty Healthcare, the NLRB announced a new standard for determining which employees should be included in a bargaining unit represented by a union.   Member Brian Hayes, who dissented in the case said under the new standard, the Board agents “will have little option but to find almost any petitioned-for unit appropriate,” and that it will encourage unions to organize in smaller units.  The decision allows union organizers to gerrymander the bargaining units by composing units of a subset of employees most likely to organize, with little regard for whether those employees on their own constitute a practical bargaining unit. The company in the case refused to bargain with the union and challenged the standard. The Board determined the company had committed an unfair labor practice by refusing to bargain. The company has appealed that decision to the US Court of Appeals for Sixth Circuit – that case is Kindred Healthcare v. NLRB.   CDW filed a brief in the case on April 23.  The brief is available here.

D.R. Horton v. NLRB

In D.R. Horton, the Board ruled that the NLRA prohibits waivers for class and collective action lawsuits in arbitration agreements that are a condition of employment.  The Board reasoned the collective/class action suits are protected by the NLRA because employees are acting collectively when suing.  D.R. Horton appealed the case to the US Court of Appeals for the Fifth Circuit.  CDW filed a brief in the case on June 6 arguing, among other things, that the decision conflicts with the Federal Arbitration Act.  The brief is available here.

The Neiman Marcus Group d/b/a Bergdorf Goodman

One of the Board’s Regional Directors applied the standard set forth in Specialty Healthcare to issue a decision finding a unit consisting only of sales people in the women’s shoe department was an appropriate bargaining unit.  The company appealed and the Board invited amicus briefs.  On June 13, CDW filed a brief, which is available here.

Nestle Dreyer’s Ice Cream Company v. NLRB

On December 28, 2011, a majority of the Board relied on the standard in Specialty Healthcare to uphold a regional director’s determination that maintenance employees at a Nestle Dreyer plant were an appropriate unit.  The union had failed three times previously to organize a larger unit consisting of both production and maintenance employees, which was the most common unit in similar settings prior to Specialty Healthcare.   The union won the election and the company refused to bargain.  On May 18, the Board issued a decision finding the company committed an unfair labor practice. Nestle Dryer appealed the decision to the U.S. Court of Appeals for the Fourth Circuit.  CDW’s brief, which was filed on July 10, is available here.

Banner Health Systems

We will be joining as amicus in Banner Health Systems appeal to the US Court of Appeals for the DC Circuit from NLRB’s July 30 decision in Banner Health Systems.  In that case, the Board ruled that the employer violated employees’ NLRA rights to engage in concerted activity because it had a blanket policy of requesting employees keep confidential discussions about ongoing investigations of employee misconduct.  The Board said that instead, the employer must justify requesting confidentiality on a case-by-case basis.  Member Hayes dissented.  The Board’s decision and other documents are available here.  The case is the latest effort by the Board to increase its regulation of conduct at nonunion workplaces (see Morgan Lewis Alert on this trend here).  We will forward a link to the brief after it has been filed.

Huntington Ingalls Inc. v. NLRB

The Huntington Ingalls case is on appeal from the Board to the US Court of Appeals for the Fourth Circuit.  The Board proceedings, including the decision, can be viewed here.  The Board applied the bargaining unit determination standard announced in Specialty Healthcare to find that an appropriate unit consists solely of a small subset of technical employees working in the Radiological Control department of the employer’s Newport News Shipbuilding facility.  Member Hayes dissented, finding the unit “excludes thousands of other technical employees working at the same facility.  In spite of departmental homogeneity, this fragmented technical employee unit is clearly inappropriate, particularly in light of the high degree of functional integration of their duties with those of other technical employees in this defense contractor Employer’s workforce.”   We will forward a link to the brief once it has been filed.




Geoff Burr

Vice President, Federal Affairs

Associated Builders & Contractors, Inc.

4250 N. Fairfax Drive, 9th Floor

Arlington, VA 22203