HR Management & Compliance

Potential deal in works to fill NLRB seats

by Tammy Binford

With the clock ticking on the term of the only confirmed member of the National Labor Relations Board (NLRB), reports are circulating that President Barack Obama will send two new nominees to the Senate and abandon his two previous appointees, who face opposition because of their disputed recess appointment status.

On July 16, news organizations reported that Obama plans to nominate Nancy Schiffer, former associate general counsel of the AFL-CIO, and Kent Hirozawa, chief counsel to NLRB Chairman Mark Gaston Pearce, the only current member who has been confirmed by the Senate. Pearce’s term expires on August 27, but he has been nominated for a new term.

Senate Majority Leader Harry Reid was quoted as saying a hearing for Schiffer and Hirozawa will be held on July 23. Senate confirmation could come by the end of that week.

Schiffer and Hirozawa would replace Democrats Richard Griffin and Sharon Block, who have sat on the Board since they were appointed on January 4, 2012, when the Senate was on a holiday break.

The normal process for appointments to the NLRB is for the president to send nominees to the Senate for confirmation, but the U.S. Constitution allows the president to make appointments without confirmation if the Senate is in recess. The appointments of Griffin and Block were disputed early on because of claims that although the Senate wasn’t meeting regularly, it remained in pro forma session, meaning some kind of session was gaveled in and out every few days.

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled in Noel Canning v. NLRB that the appointments of Griffin and Block were invalid because the Senate wasn’t officially in recess. In April, the NLRB asked the U.S. Supreme Court to review the D.C. Circuit’s decision, and Block and Griffin remained on the Board pending a decision from the Supreme Court.

With the Board’s status uncertain, Obama sent nominations of Block and Griffin to the Senate in February, and the Senate Health, Education, Labor and Pensions Committee held a hearing on the nominations in May. Senator Lamar Alexander, a Tennessee Republican and the committee’s ranking member, announced that he would oppose Block’s and Griffin’s nominations because they continued to sit on the Board after the D.C. Circuit ruled that their appointments were invalid.

In April, Obama nominated Republicans Harry I. Johnson, III, and Philip A. Miscimarra. He also nominated Pearce, a Democrat, for another term. If all the nominations are confirmed, the NLRB will have its full complement of five members.

Reports that Schiffer and Hirozawa would be nominated were met with approval from a prominent union official and disapproval from the National Right to Work Legal Defense Foundation (NRWLDF).

“Our top priority remains confirming a full [NLRB] as soon as possible,” Mary Kay Henry, president of the Service Employees International Union (SEIU), said after word of the new nominees got out. “We believe that this compromise, which will enable new nominees to receive up-or-down votes without obstruction in the Senate, is a step toward this goal. However, it is unfortunate that Sharon Block and Richard Griffin, two highly qualified nominees, were unfairly used as political pawns in the debate over Senate rules.”

Mark Mix, president of the NRWLDF, criticized the agreement.

“Union bosses know their coercive agenda is overwhelmingly unpopular with the American people. This is why they’ve turned to unelected administrative agencies like the NLRB to push through much of what they cannot get through Congress,” Mix said. “And after Senator John McCain apparently struck a backroom deal today with Senate Democrats to sell out independent-minded workers, the Obama White House wasted no time meeting with union bosses to determine who they want on the agency to enact their radical agenda.”