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.
On September 17, 2014, the U.S. Senate’s Health, Education, Labor and Pensions Committee voted 13 to 9, along party lines, to approve the nomination of Sharon Block to be a Member of the National Labor Relations Board. Her nomination now goes to the full Senate who will vote on her nomination. That vote will take place during the Senate’s lame duck session after the November elections when the Democrats will still be in the majority. Therefore, one can assume that Block will be confirmed.
On September 15, 2014, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) proposed a new rule that would prohibit federal contractors from discharging or otherwise disciplining employees who discuss, disclose or inquire about their pay or the pay of another employee or applicant for employment.
“Workers cannot solve a problem unless they are able to identify it. And they cannot identify it if they aren’t free to talk about it without fear of reprisal,” said OFCCP Director Patricia A. Shiu in her press release. “Pay transparency isn’t just good for workers. It’s good for business. Fairness and openness are great qualities for a company’s brand.”
Back in April 2014, the President signed Executive Order 13665, which instructed Secretary of Labor Perez issue a proposed rule within 160 days that required “pay transparency” by federal contractors. The rule proposed would amend the Equal Opportunity clauses in Executive Order 11246. The new rule adds definitions for “compensation,” “compensation information,” and “essential job functions,” terms which appear in the revised clauses of the Executive Order. The proposal also establishes two types of defenses that contractors can use against allegations of discrimination under EO 13665.
The proposed rule will be published in the September 17 issue of the Federal Register and will be open for public comment for 90 days. See http://www.dol.gov/ofccp/PayTransparencyNPRM.
On August 4, 2014, the National Labor Relations Board announced that on July 18, 2014, it had “unanimously ratified all administrative, personnel, and procurement matters taken by the Board from January 4, 2012 to August 5, 2013.” This action was in response to the Supreme Court’s decision in NLRB v. Noel Canning holding that the Members recess-appointed on January 4, 2012 by President Obama were not validly appointed. The current Board was without question validly appointed on August 5, 2013, at which time a quorum was regained.
From January 4, 2012 to August 5, 2013, the NLRB took formal action on numerous matters including the appointment of some Regional Directors and Administrative Law Judges. In addition, there were agency restructurings of regional and headquarters offices. At the time these actions were taken, some parties appearing before the Board took exception to actions taken by some of these persons who they claimed were invalidly appointed. In an effort to eliminate those claims and challenges, the NLRB has taken this action.
In addition, the NLRB expressly authorized the following actions:
■ The selection of Dennis Walsh as Regional Director for Region 4 (Philadelphia);
■ The selection of Margaret Diaz as Regional Director for Region 12 (Tampa);
■ The selection of Mori Rubin as Regional Director for Region 31 (Los Angeles);
■ The selection of Kenneth Chu, Christine Dibble, Melissa Olivero, Susan Flynn, and Donna Dawson as Administrative Law Judges;
■ The restructuring of various Field Offices;
■ The restructuring of Headquarters’ Offices.
On July 30, 2014, the NLRB announced that following the Board’s July 18, 2014 authorization, Regional Directors Walsh, Diaz, and Rubin ratified all actions taken by them or on their behalf from the dates of their initial appointments and July 18, 2014. These ratifications also included all personnel and administrative decisions, all actions in representation case matters, and all actions in unfair labor practice cases taken by these Regional Directors.
Whether this action by the Board and the several Regional Directors will be effective to eliminate pending challenges remains to be seen.
The July 18, 2014 Minute of Board Action can be viewed here.
On July 21, 2014, President Obama signed an Executive Order prohibiting federal government contractors and subcontractors from discriminating in employment decisions on the basis of sexual orientation or gender identity.
The Executive Order is an amendment to Executive Order 11246, issued by President Lyndon Johnson on September 24, 1965, and enforced by the Labor Department’s Office of Federal Contractor Compliance Programs.
Commenting on his action, “…the President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.”
For more information about Executive Order 11246, see:
On July 14, 2014, the White House announced that President Obama was sending to the Senate the nomination of Democrat Sharon Block, currently working as an attorney at the U.S. Department of Labor, to be a Member of the National Labor Relations Board for the term of five years expiring December 16, 2019, replacing Democrat Nancy Jean Schiffer whose term expires in mid-December, 2014.
Block was previously recess-appointed to the NLRB by the President in January 2012. Block and two other recess appointees (including Richard Griffin) were found to have been invalidly appointed in the Noel Canning v. NLRB case by the Supreme Court last month.
In mid 2013, the President nominated new members to the NLRB who were confirmed, and Block and Griffin resigned from the Board. Griffin was later nominated and confirmed as General Counsel of the Board.
This action may forestall a deadlock on the Board should the Republicans win control of the Senate in November 2014, since, if Schiffer is not replaced, that would leave a 2 – 2 split at the Board of Republicans and Democrats. Without a majority, the Democrats would be unable to decide important issues in cases or issue new regulations impacting labor-managment relations based on a pro-union agenda.
On June 26, 2014, the U.S. Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), held in a unanimous decision that President Obama’s purported recess appointment of three members (Richard Griffin, Sharon Block and Terence Flynn) to the National Labor Relations Board in January 2012 was invalid. The opinion written by Justice Breyer was joined in by Justices Kennedy, Ginsburg, Sotomayor and Kagan. Justice Scalia wrote a concurring opinion in which Chief Justice Roberts, and Justices Thomas and Alito joined.
Some of Justice Breyer’s key points in his analysis were:
“Accordingly, we conclude that when the Senate declares that it is in session and possesses the capacity, under its own rules, to conduct business, it is in session for purposes of the [recess appointment] Clause.
“Applying this standard, we find that the pro forma sessions were sessions for purposes of the Clause. First, the Senate said it was in session. The Journal of the Senate and the Congressional Record indicate that the Senate convened for a series of twice-weekly “sessions” from December 20 through January 20. 2011 S. J. 923– 924; 158 Cong. Rec. S1–S11. (The Journal of the Senate for 2012 has not yet been published.) And these reports of the Senate “must be assumed to speak the truth.” Ballin, supra, at 4.
“Second, the Senate’s rules make clear that during its pro forma sessions, despite its resolution that it would conduct no business, the Senate retained the power to conduct business.
“Senate has enacted legislation during pro forma sessions even when it has said that no business will be transacted. Indeed, the Senate passed a bill by unanimous consent during the second pro forma session after its December 17 adjournment. 2011 S. J. 924. And that bill quickly became law. Pub. L. 112–78, 125 Stat. 1280.
“We thus hold that the Constitution empowers the President to fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”
The justices split only over the question of whether the vacancy to be filled had to itself have occurred during the recess or whether it could have occurred prior to the recess. The majority held that the vacancy could occur prior to the recess, based on historical practice.
Justice Scalia, in his concurring opinion, argued that the vacancy to be filled by a recess appointment by the President had to occur during the recess and relied upon the following language contained in the Constitutional provision at issue:
“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
Thus this more restrictive view did not carry the day. However, the NLRB is now left with scores of cases which will have to decided again by the newly constituted Board, which was confirmed by the Senate.
Wyatt Employment Law Report 