DOL and NLRB Nominations Move Forward

June 5, 2013

pic-court-gavelRecently, there has been action on a handful of nominations to federal agencies that deal with business and labor issues, namely the Department of Labor and National Labor Relations Board (NLRB).

Department of Labor Nomination

On May 16, the Senate Health, Education, Labor and Pensions (HELP) Committee approved the nomination of Thomas Perez to be Secretary of Labor with a party line vote.  His nomination is controversial and may be filibustered on the floor of the Senate.

NLRB Nominations

In February of this year, President Barack Obama re-nominated Block and Griffin to be members of the NLRB.  In April, he nominated Mark Gaston Pearce to be reappointed as a member and as Chairman; he also nominated Harry I. Johnson, III  and Philip A. Miscimarra to be members.

On May 22, the Senate Health, Education, Labor and Pensions (HELP) Committee approved all five nominations.  All but one of the committee Republicans opposed Block and Griffin.  Their appointments are embroiled in controversy and litigation.

NLRB Recess Appointment Litigation Update

On Jan. 4, 2012, the President made recess appointments of Sharon Block, Terence F. Flynn and Richard Griffin to the NLRB. Flynn has since resigned. At the time of the President’s recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from Dec. 20, 2011, through Jan. 23, 2012. The agreement stated that no business would be conducted during those sessions. During the Dec. 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax reduction.  During the Jan. 3 pro forma session, the Senate acted to convene the second session of the 112th Congress.

The D.C. Appeals Court held that the President’s recess appointments to the NLRB made Jan. 4, 2012, were not constitutionally valid since the Senate was not in recess.  Since Block and Griffin are now not valid members, that leaves only one validly appointed member (Chairman Pearce).  The decision also puts in doubt every decision made by the NLRB since Jan. 2012 –an estimated 300 decisions — because the NLRB did not have the legal authority to act. Moreover, the NLRB says that over 100 decisions are currently pending.

On April 25, 2013, the NLRB filed its petition for a writ of certiorari from the Supreme Court.  On May 13, 2013, the respondent Noel Canning filed its brief.  Various amicus curiae briefs have been filed, including one from Republican Leader, Mitch McConnell.