Wyatt Employment Law Report


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Richard Griffin’s Nomination To Be NLRB General Counsel Will Be Considered by HELP Committee

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee will hold an executive session at which it will discuss the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It will also take up the nominations of Chai Feldblum to serve as a Commissioner of the Equal Employment Opportunity Commission and Scott Dahl to be Inspector General of the Department of Labor.

The nomination of Griffin to be NLRB General Counsel may be controversial.  Griffin was one of the President’s recess appointments to the NLRB in January 2012, which were held invalid by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB, now pending before the U.S. Supreme Court.  A number of Republican Senators opposed Griffin’s nomination to be a confirmed NLRB Member.  As part of a deal to avoid the “nuclear option” regarding the fillibuster, Griffin’s nomination to be a Board Member was withdrawn by the President in July 2013.  It is unclear whether Griffin’s later nomination to be General Counsel was part of the July 2013 deal.


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Fourth Circuit Court of Appeals Rules NLRB Recess-Appointments Were Invalid

By Edwin S. Hopson

On July 17, 2013, the U.S. Court of Appeals for the Fourth Circuit in NLRB v. Enterprise Leasing Company Southeast and Huntington Ingalls Inc. v. NLRB, joined the D.C. and Third Circuits in deciding that the President’s recess appointments to the NLRB were invalid.  The Court’s panel was  split 2 to 1, with Senior Judge Hamilton writing for the majority, joined by Judge Duncan, and with dissenting Judge Diaz arguing in favor of the government’s position.


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NLRB Members Griffin and Block to be Replaced as Part of Filibuster Deal

By Edwin S. Hopson

Politico.com and other media are reporting that on July 16, 2013, as part of the agreement to resolve the deadlock over possibly changing the filibuster rules in the Senate, Democrats in consultation with AFL-CIO President Richard Trumka agreed that Recess-Appointee Members Richard Griffin and Sharon Block of the NLRB would be removed and replaced by Nancy Schiffer, former Associate General Counsel at the AFL-CIO, and Kent Hirozawa, currently Chief Counsel to NLRB Chairman, Mark Pearce.  A hearing is to be scheduled the week of July 22 before the Senate HELP Committee to approve Schiffer and Hirozawa.  The GOP also agreed not to block the nominee for an opening next year on the NLRB. 

This agreement does not affect the pending case before the Supreme Court in Noel Canning v. NLRB regarding the validity of the President’s recess appointments to the NLRB in January 2012.

See http://www.politico.com/story/2013/07/white-house-consults-with-afl-cio-head-on-nlrb-picks-94280.html#ixzz2ZJKIhWik


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Senate Committee Approves President’s Nominations to the NLRB

By Edwin S. Hopson

On May 22, 2013, the Senate Committee on Health, Education, Labor & Pensions voted to approve the nominations of Mark Pearce, Richard Griffin, Sharon Block, Harry Johnson, and Phillip Miscimarra to be Members of the National Labor Relations Board.  The committee vote for Johnson and Misimarra, both Republicans, was 22 to 0 in favor.  The vote for Pearce, the current Chairman of the Board, whose term expires in August, 2013, was 18 to 4 in favor.  The votes for Griffin and Block, both of whom are Democrats and currently serving as Board Members, were 13 to 9 in favor.  Several Republican Senators voiced opposition to Griffin and Block based on the fact that their recess appointments were held to be invalid by the D.C. Circuit Court of Appeals in the Noel Canning v. NLRB case, and they have continued to serve on the Board.


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Third Circuit Court of Appeals Invalidates Recess Appointment to the NLRB

By Edwin S. Hopson

On May 16, 2013, a panel of the U.S. Court of Appeals for the Third Circuit (in a 2 – 1 decision) in National Labor Relations Board v. New Vista Nursing and Rehabilitation, Nos. 11-3440, 12-1027, and 12-1936 (3rd Cir. 2013), decided that the orders issued by the NLRB in this case could not be enforced because former NLRB Member Craig Becker’s recess appointment in March 2010 was invalid.  This is the second federal court of appeals to rule that a recess appointment to the NLRB by President Obama was invalid—the first being the D.C. Circuit Court of Appeals, in Noel Canning v. NLRB, as to which the NLRB has petitioned the U.S. Supreme for review.


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Senate Committee to Hold a Hearing on NLRB Nominees

By Edwin S. Hopson

On May 16, 2013, the full U.S. Senate Committee on Health, Education, Labor & Pensions will conduct a hearing on the pending nominations to be Members on the National Labor Relations Board.  Currently, there are five nominations pending for the five-member board. They are for:

●Curent Chairman Mark Pearce, for another term (his current term expires in August, 2013);

●Current Member, Richard Griffin, who is serving a recess appointment;

●Current Member, Sharon Block, who is also serving a recess appointment;

●Harry Johnson, a recent nominee who is a Republican; and

●Phillip Miscimarra, a recent nominee who is also a Republican. 

Griffin and Block’s recess appointments have been under fire after the D.C. Circuit Court of Appeals ruled in Noel Canning v. NLRB in January 2013 that they were invalid.


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Measures Introduced in the Senate and the House to Block Actions by Members of the NLRB

By Edwin S. Hopson

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.