On November 12, 2014, President Obama unexpectedly advised the U.S. Senate that he was withdrawing the nomination of Sharon Block to be a Member of the National Labor Relations Board and that he was submitting the nomination of Lauren McGarity McFerran to be on the NLRB, replacing Democrat Nancy Schiffer whose term expires December 16, 2014.
Block’s nomination had already cleared the Senate’s HELP Committee and was set to be voted on by the lame-duck Senate before it recessed next month.
This development could mean that there is insufficient time to get McFerran confirmed and, therefore, her nomination will be taken up by the new Senate after the first of the year.
McFerran is currently Deputy Staff Director to the HELP Committee.
If McFerran is not confirmed prior to the end of the lame-duck session, that means that the NLRB will be operating with two Democrat Members and two Republican Members. Thus, the chances of the NLRB advancing a “liberal” agenda including speeding up representation elections, etc., will be virtually nil.
McFerran’s background would appear to be pro-labor. However, at this time it is not possible to say whether she can be confirmed by a Republican Senate.
The Senate Committee on Health, Education, Labor & Pensions has announced it is going to conduct an executive session on May 8, 2013, starting at 10 a.m. on the nomination of Thomas Perez to be U.S. Secretary of Labor. A number of Republican Senators have voiced possible opposition to Perez’ nomination. Since the Democrats constitute the majority on the HELP committee, it is assumed that Perez’ nomination will ultimately be voted favorably out of committee.
On March 21, 2013, the ranking member of the Senate Health, Education Labor and Pensions Committee, Lamar Alexander (R-TN), offered an amendment that would defund the enforcement of any decisions or regulations made by the National Labor Relations Board, citing the decision in Noel Canning by the U.S. Court of Appeals for the D.C. Circuit this past January holding that President Obama’s recess appointments to the NLRB were invalid. In a press release, Alexander stated:“The NLRB has just one member today—just one Senate-confirmed, constitutional member—so it has no quorum. Not a single cent should go to enforce or fund any of the invalid decisions made by a board that counts as members two unconstitutionally ‘appointed’ individuals.”
The amendment is co-sponsored by 17 Republican senators. The press release noted that since January’s D.C. Circuit Court ruling, the NLRB has issued 30 published decisions and 62 unpublished decisions and orders.
Earlier, on March 20, 2013, the House Committee on Education and the Workforce, chaired by Rep. John Kline (R-MN), approved H.R. 1120 (by a vote of 23 to 15) requiring the NLRB “to cease all activity requiring a three member quorum until the legal crisis surrounding the board is appropriately resolved.” According to a press release on the House Committee’s website, H.R. 1120 will:
Require the NLRB to cease all activity that requires a three board member quorum.
Prohibits the board from enforcing any action taken after January 2012 or making any interagency appointments that require a quorum.
Not prevent the NLRB regional offices from accepting and processing unfair labor practice charges filed by an injured party – worker, employer, or union.
Remove the restrictions on the NLRB’s authority after one of the following events occurs:
The U.S. Supreme Court rules on the constitutionality of the recess appointments; or
A Board quorum is constitutionally confirmed by the Senate; or
The terms of the unconstitutional recess appointees expire when the First Session of the 113th Congress adjourns.
Ensure any action involving the recess appointees is reviewed and approved by a future NLRB that has been constitutionally appointed.
It is doubtful, given the make-up of the Senate, that either measure will ultimately be passed into law.
Wyatt Employment Law Report 