Wyatt Employment Law Report

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Democrat McFerran Approved by Senate HELP Committee to be NLRB Member

By Edwin S. Hopson

On December 2, 2014, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved the nomination of Democrat Lauren McFerran to serve as a Member of the NLRB. Her nomination now goes to the Senate floor for consideration. It would appear she will be confirmed during the lame duck session, barring something unforeseen, meaning that the NLRB will continue to have three Democrat and two Republican Members.

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President Withdraws NLRB Nominee and Sends a New NLRB Nominee to the Senate

By Edwin S. Hopson

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.

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Republican Senators Block GPO Nominee Over Senate’s Failure to Confirm NLRB Nominee

By Edwin S. Hopson

In an article by Josiah Ryan posted on www.thehill.com on October 19, 2011, it was reported that Senators Orrin Hatch (R) and Johnny Isakson (R) have prevented confirmation of William J. Boarman, the President’s nominee for head of the U.S. Government Printing Office, because the Democratically-controlled Senate has not scheduled a vote on the nomination of Terence Flynn, a Republican, to be a Member of the National Labor Relations Board. Mr.Flynn was nominated by President Obama on January 5, 2011, but to-date the Senate Health, Education, Labor and Pensions Committee has not approved the nomination, the first step in the Senate’s process.

Currently, there are three Members on the five-member Board:  Chairman Mark Pearce (D), Member Craig Becker (D) and Member Brian Hayes (R).  It appears that on December 31, 2011, the recess appointment of Member Becker will expire.  Should Mr.Flynn be confirmed by the Senate, then after December 31, 2011, the Republican Members would be in the majority.  If Mr. Flynn (or another nominee) is not confirmed this year, then the NLRB would likely be reduced to just two Members and be unable after December 31, 2011, to issue decisions or take other actions under the recent Supreme Court decision in New Process Steel v. NLRB, 30 S. Ct. 635 (2010).

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President Obama Orders Regulatory Agencies to Allow More Public Input Into Regulations

By Edwin S. Hopson

On July 11, 2011,President Obama issued an Executive Order directed at regulatory agencies requiring them, consistent with existing law, to do what his Executive Order 13563 did regarding executive branch agencies.  That is each agency, such as the National Labor Relations Board and the Equal Employment Opportunity Commission, is directed to:

”Within 120 days of the date of this order, each independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency’s regulatory program more effective or less burdensome in achieving the regulatory objectives.”

It also instructs agencies as follows:

“Wise regulatory decisions depend on public participation and on careful analysis of the likely consequences of regulation. Such decisions are informed and improved by allowing interested members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after consideration of their costs and benefits (both quantitative and qualitative).”

The new Order also states “Executive Order 13563 set out general requirements directed to executive agencies concerning public participation, integration and innovation, flexible approaches, and science. To the extent permitted by law, independent regulatory agencies should comply with these provisions as well.”

The effect of this new Executive Order on the NLRB’s proposed regulations that would speed up the representation election process is not known.  However, Senator MikeEnzi(R-Wyo.), the Rrnking member on the Senate Health, Education, Labor and Pensions Committee called on the NLRB to follow the new Executive Order and criticized the Board for not permitting more public participation prior to issuance of its proposed regulations. See http://help.senate.gov/newsroom/press/release/?id=c08f491c-6363-4529-8cf2-a1df744a2a7a&groups=Ranking