Wyatt Employment Law Report

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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.