Senate Committee Holds Hearing on Nomination of Sharon Block to be a Member of the NLRB

By  Edwin S. Hopson

On September 9, 2014, the U.S. Senate’s Health, Education, Labor and Pensions Committee (HELP) conducted a hearing on the nomination of Sharon Block, a Democrat, to once again be a Member of the National Labor Relations Board. She was nominated to take the place of Nancy Schiffer, a Democrat, who apparently did not seek another term on the Board.

Schiffer’s term expires December 16, 2014. If Block is not confirmed, the NLRB after December 16, 2014, would effectively be deadlocked, with 2 Democrat Members, and 2 Republican Members.

The ranking member on the committee, Lamar Alexander (R-Tenn.), raised objections to the nomination citing Block’s earlier service on the Board as a recess-appointee, which appointment was invalidated by a unanimous Supreme Court in NLRB v. Noel Canning et al., 573 U.S. ___ (2014), as well as Block’s refusal to step down when the D.C. Circuit found the recess appointments of Block and two other Board Members to be invalid.  Senator Alexander and other Republican Senators had called for her and the other recess-appointees to resign after the D.C. Circuit Court ruling.

Block was also asked if she had a conflict of interest in sitting on cases invalidated by the Supreme Court’s Noel Canning ruling which she had previously decided as a Board Member; Block indicated she would refer any such question, if confirmed, to the appropriate government ethics person.

The committee did not vote on Block’s nomination at the conclusion of the hearing, and Chairman Harkin left the record of the hearing open several days for any additional comments or questions.

Since the Democrats hold majorities on both the HELP committee and in the Senate at the present time, and in light of Senator Reid and the Democrat’s change in the filibuster rules, Block is likely to be confirmed.

NLRB Ratifies Actions of Prior Board Found in Noel Canning to Lack a Quorum Due to Improper Recess Appointments

By Edwin S. Hopson

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.

http://www.nlrb.gov/sites/default/files/attachments/basic-page/node-3302/7-18-14.pdf

 

 

 

 

Supreme Court in Noel Canning Invalidates NLRB Recess Appointments

By Edwin S. Hopson

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.

Supreme Court Hears Arguments in NLRB Recess Appointments Case

By Edwin S. Hopson

The U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning earlier this week.  This case, involved the recess appointment of three members to the National Labor Relations Board in early January 2102 by President Obama. The several issues to be resolved, as specified by the High Court are:

“1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”

“2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

The Court also stated:  “In addition to the questions presented by the Petition, the parties are directed to brief and argue the following question:  whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

According to various news reports, many of the Justices appeared skeptical of the government’s position during oral argument.

It may be several months before the Court issues its decision.

Supreme Courts Sets Date for Oral Argument in Recess Appointments Case

By Edwin S. Hopson

The U.S. Supreme Court has set oral arguments in NLRB v. Noel Canning for January 13, 2014.  This case, involving the recess appointment of three members to the National Labor Relations Board in early January 2102 by President Obama, has several issues to be resolved, as specified by the High Court:

“1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.”

“2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

The Court also stated:  “In addition to the questions presented by the Petition, the parties are directed to brief and argue the following question:  whether the President’s recess appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

Griffin is Sworn in As NLRB General Counsel

By Edwin S. Hopson

On November 4, 2013, Richard Griffin, Jr. was sworn in as NLRB General Counsel. His term will be for four years.  Griffin had served on the NLRB as a Board Member, having been recess appointed by President Obama in early January 2012.  His appointment, along with another recess appointee, was attacked as invalid.  The Supreme Court will hear that case this term.  As part of a deal this past summer, Griffin and one other recess-appointed Member vacated their position on the Board and President Obama nominated others to fill the vacant positions. Griffin, prior to being appointed to the Board, had been general counsel to the International Union of Operating Engineers.

Also, Griffin announced that Jennifer Abruzzo would be appointed as his Deputy General Counsel and that Rachel Gartner Lennie would be his Assistant General Counsel.

Griffin Confirmed by the Senate to be NLRB General Counsel

By Edwin S. Hopson

After a successful cloture vote on October 29, 2013, the Senate conducted a roll call vote on the nomination of Richard Griffin, Jr. to be General Counsel at the National Labor Relations Board.  He was confirmed by a vote of 55 to 44.  Once sworn in, Griffin will take over from Lafe Solomon who has been Acting General Counsel since June 2010. Griffin was previously general counsel of a major labor union, and one of the Board Members whose recess appointment was challenged in, among other cases, Noel Canning v. NLRB, which is pending in the Supreme Court.  Griffin’s appointment to the NLRB was withdrawn by the President in a deal this summer to install a fully confirmed Board.