Header graphic for print
Federal Regulations Advisor Insight and Commentary on U.S. Government Regulatory Affairs

Tag Archives: NLRB

Monday Morning Regulatory Review – 1/16/17: WOTUS Jurisdiction & Venue; Arbitration Bars; Deference without Deference; Mandatory Duties & Remedies; Regulatory Accountability Act Reprise; Expedited Removal and Cubans; Good Cause Overdose & Communicable Disease Incaution

Posted in Judicial Process, Judicial Review & Remedies, Legislation, Regulatory Process

The United States Supreme Court (SCOTUS) added to its argument calendar Friday, including several that could implicate future regulatory practice – including jurisdiction to review regulations and the potential scope of arbitration-limiting regulations.  In lesser lights, a Court of Appeals determined that an agency’s interpretation was correct without the agency, while a district court imposed… Continue Reading

Monday Morning Regulatory Review – 7/4/16: Agency Exceeds Authority in Limiting Obamacare Exceptions; Second Persuader Challenge Persuaded; Conviction Guidance as Final Agency Action & Regulatory Deck-Clearing

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Regulatory Flexibility & Small Business

Independence Day – a day to celebrate the right to choose between praising or criticizing the administrative state – or both.  Several courts took exception from Administration regulatory actions in the past week, including a regulation that exceeded the agency’s authority, a regulation that likely failed to comport with a number of superior requirements, and… Continue Reading

Monday Morning Regulatory Review – 8/3/15: WOTUS Litigation IV; Cross-State / Transport Rule Remanded; Refrigeration Standards Settlement; Labor Elections Upheld Again; Tax Court Vacates IRS Rule & Clean Power Plan

Posted in Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

Litigation dominated regulatory affairs last week. Procedural posturing continued in the Waters of the United States (WOTUS) litigation while gaining some clarity and the Clean Air Act (CAA) “good neighbor” regulations returned to the Environmental Protection Agency (EPA) for further refinement. Litigants asked the courts to partially vacate and remand efficiency standards for walk-in refrigerators,… Continue Reading

Monday Morning Regulatory Review – 6/8/15: A Good Week for EPA; NLRB Case Representation Challenges; & More H-2B Litigation

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Flexibility & Small Business

This week, litigation updates: The United States Court of Appeals for the District of Columbia Circuit last week cleared out a myriad of challenges to Environmental Protection Agency (EPA) regulations and decisions based on regulations – all in favor of the EPA. The National Labor Relations Board (NLRB) also succeeded in defending their second union… Continue Reading

Monday Morning Regulatory Review – 4/6/15: Cyber-Threat Executive Order; NLRB Elections Rule; Drones & Privacy; and Confined Spaces in Construction

Posted in Agency Authority, Constitutional Issues in Regulations, Executive - OMB Review, Judicial Review & Remedies

Issues on the periphery of regulatory practice highlighted the last week. The President of the United States (POTUS) unleashed financial regulation resources against cyber-threats by applying regulations and enforcement processes that have historically been used to combat foreign regimes, terrorists, international narcotics traffickers, and the proliferation of weapons of mass destruction. On the other hand,… Continue Reading

Monday Morning Regulatory Review – 1/19/15: Judicial Review of Agency Standards of Discretion; Regulatory Takings Standards; FLSA Home Care Regulations II; NLRB Elections Rule Litigation IIA; Be Sued & Settle

Posted in Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) granted review in several cases with significant regulatory implications last Friday – neither of which is the case that has drawn all the press attention and both of which should be decided early this summer.  In one case, SCOTUS may be approaching the twilight zone of judicial review of… Continue Reading

Monday Morning Regulatory Review – 1/12/14: NLRB Election Rule Litigation II; Regulatory Reform; & Conciliation Prerequisite

Posted in Agency Authority, Judicial Review & Remedies, Legislation

A few small nuggets deserve attention, although no earth shattering developments rocked administrative law last week.  Reopening two old chapters in the annals, a new suit challenges the National Labor Relations Board (NLRB) 2014 union representation election rule and the House of Representatives this week moves reform of the Administrative Procedure Act (APA) near the… Continue Reading

Monday Morning Regulatory Review –12/15/14: FLSA Security Screenings; NLRB Elections Rule; Contractor Rehab Act Rule; Contractor Inversions & Minimum Wage Rules

Posted in Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

For some reason, today seems to be Labor Day – that is, all of the significant actions we cover deal with the regulation of employment of some type.  Today focuses on two rules of general applicability and three rules dealing with employment requirements of government contractors.  The United States Supreme Court (SCOTUS) surprised many with… Continue Reading

Monday Morning Regulatory Review – 8/11/14: EPA Power Plant Litigation; NLRB Ratifies Administrative Actions; FCC Open Internet / Fast Lane Comments & Attorney General Habeas Corpus Certifications

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The dog days of summer mean that this column is filled with many odds and few ends.  In new litigation, a dozen states sued the Environmental Protection Agency (EPA) claiming that the agency lacks authority to issue a rule that it has not yet been issued.  On the other hand, the National Labor Relations Board… Continue Reading

SCOTUS Holds Obama Made Unconstitutional NLRB Recess Appointments – Regulations and Adjudications at Risk

Posted in Agency Authority, Constitutional Issues in Regulations

The United States Supreme Court (SCOTUS), in NLRB v. Noel Canning,  today affirmed the United States Court of Appeals for the District of Columbia decision that President Obama (POTUS) unconstitutionally appointed members of the National Labor Relations Board (NLRB) as “recess appointments” when the Senate was not in recess.  SCOTUS unanimously affirmed on narrower grounds… Continue Reading

Monday Morning Regulatory Review – 2/10/14: NLRB Election Rule Resurrection; Auto Auto Communications; & Lithium Batteries

Posted in Regulatory Process

Among few highlights from the regulatory world last week other than one problematic court decision previously noted, the National Labor Relations Board (NLRB) resurrected a union election process rule that had been vacated for want of a quorum.  The Department of Transportation (DOT) took two interesting steps – moving forward with new technology for light… Continue Reading

Monday Morning Regulatory Review – 1/27/14: SCOTUS Enjoins Obamacare Preventive Contraception Rule; NLRB Rescinds Vacated Rule; OMB Economically Significant Reviews; and Social Cost of Carbon & Crystalline Silica Extensions

Posted in Judicial Review & Remedies, Regulatory Process

The United States Supreme Court (SCOTUS) last Friday enjoined enforcement of the Department of Health and Human Services (HHS) regulations on preventive contraception minimum regulations under Obamacare against several non-profit organizations in a procedural order that may be a guidepost for future litigation.  Regulatory activity of interest included the National Labor Relations Board (NLRB) best… Continue Reading

Monday Morning Regulatory Review – 1/13/14: Electric Generating Emissions; Demise of the NLRB Posting Rule; Obamacare Regulation by Blog Post; Aircraft Repair Stations Coordination; Unified Agendas & Regulatory Plans

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The beginning of a new year raises several process questions for regulatory practitioners.  The Environmental Protection Agency (EPA) published a new proposed rule to limit emissions from new electric power generators – a rule EPA released several months ago, but only published last week.  The National Labor Relations Board (NLRB) threw in the towel on… Continue Reading

Monday Morning Regulatory Review – 12/23/13: Obamacare Guidance, not Rules, & More Exceptions; Carbon Capture & Sequestration; OMB Reviews; Contracts, Dogs & Cats

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Flexibility & Small Business, Regulatory Process

As the end of year holidays and the health insurance deadline nears, the patchwork of Obamacare fixes and court decisions creating exceptions grows geometrically, making Obamacare less and less universal: at least two core policy changes and three new court decisions highlight the week.  The Environmental Protection Agency (EPA) released a final rule that may… Continue Reading

Monday Morning Regulatory Review – 12/16/13: Obamacare Deadlines; Labor Elections Rule; Swaps Litigation; Vacating Empty Rules; & the Volcker Rule

Posted in Agency Authority, Judicial Process, Judicial Review & Remedies, Regulatory Process

Regulatory highlights from the past week include the Administration pushing back the deadline for applying for Obamacare and then begging insurance companies for even more time and leniency.  Two independent agencies – the Commodities Futures Trading Commission (CFTC) and the National Labor Relations Board (NLRB) threw in the towel on litigation and proposed new rules… Continue Reading

Judicial Review of An Orderly Shutdown of Government – Regulatory Process

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The Government is closed – somewhat – and the regulatory process surely is winding down but will not entirely stop.  The funding lapse with closing the books on FY2013 and no appropriations in place for FY2014 set in motion an “orderly shutdown” yesterday.  What that means from a regulatory process perspective is as varied as… Continue Reading

Monday Morning Regulatory Review – 9/2/13

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

The week before Labor Day – the final week of summer vacation – the Government might be expected to slow down, but the contrary was true.  The Consumer Financial Protection Bureau (CFPB) published an obscure “ratification” of its Director’s previous acts, further raising questions of the efficacy of those acts.  The Internal Revenue Service, on… Continue Reading

Monday Morning Regulatory Review – 8/26/13: Recess Appointments; Food Safety; Sewage Sludge Incinerators; Crystalline Silica & H-2B Wage Methodology

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

Summer recess is the time for judicial details and major regulatory actions.  This week, two more very different opinions arise in the National Labor Relations Board (NLRB) recess appointments scrum, more delay in the Food and Drug Administration (FDA) food safety regulations is denied, and a small element of the Environmental Protection Agency (EPA)’s sewage… Continue Reading

Monday Morning Regulatory Review – 7/22/13

Posted in Constitutional Issues in Regulations, Judicial Review & Remedies, Regulatory Process

Two recent cases of interest deserve at least a summary review – the vacation of an Environmental Protection Agency (EPA) rule that deferred regulation and permitting of some carbon dioxide emissions in scientific uncertainty and rejection of a Securities and Exchange Commission (SEC) rule on whistleblowers in private litigation.  In response to litigation and Congressional… Continue Reading

NLRB Has No Authority for Posting Rule: 4th Circuit Joins D.C. Circuit, with Broader Reasoning that the NLRB Exceeded Statutory Authority

Posted in Agency Authority, Judicial Review & Remedies

The United States Court of Appeals for the Fourth Circuit affirmed a district court judgment that the National Labor Relations Board (NLRB) had no statutory authority to promulgate its Notification of Employee Rights Under the National Labor Relations Act, or “posting rule.”  The Fourth Circuit thus joined the District of Columbia Circuit.  The latest opinion… Continue Reading

Monday Morning Regulatory Review – 5/27/13

Posted in Agency Authority, Judicial Review & Remedies, Regulatory Process

This week, a little more movement toward the Supreme Court resolving the constitutionality of intrasession recess appointments – and the impact on a number of regulations approved by such recess appointees.  A new study outlines to some extent the (environmental) agency practice of being sued by environmental supportive groups and settling on regulatory timing and… Continue Reading

Monday Morning Regulatory Review – 5/20/13

Posted in Agency Authority, Constitutional Issues in Regulations, Judicial Process, Judicial Review & Remedies

This week’s review is all about litigation updates:  A new decision from the United States Court of Appeals for the Third Circuit struck down President Obama (POTUS)’s recess appointments to the National Labor Relations Board (NLRB) as unconstitutional.  The ongoing authority feud surrounding the Food and Drug Administration (FDA) limitation of the emergency contraceptives for… Continue Reading

Monday Morning Regulatory Review – 5/13/13

Posted in Judicial Review & Remedies, Regulatory Process

This week a sprinkling of interesting events flavors administrative law.  Recess appointments litigation may get closer to sweetening the United States Supreme Court (SCOTUS) calendar.  A court decision on timing of electronic filing soured one agency’s day, and provides lessons for others.  Another court fed a bitter pill to the Department of Justice (DOJ) in… Continue Reading

D.C. Circuit Vacates NLRB Posting Rule – Enforcement Provisions Violated NLRA and Posting Requirement Could Not Be Severed

Posted in Judicial Review & Remedies, Regulatory Process

The United States Court of Appeals for the District of Columbia today vacated – in National Association of Manufacturers v. NLRB – the National Labor Relations Board (NLRB) Notification of Employee Rights under the National Labor Relations Act {NLRA), or “Posting Rule.”  The court’s decision clarified the starting point for judicial review of final agency… Continue Reading