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.

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Griffin Approved by HELP Committee to be NLRB General Counsel

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee hold an executive session at which it approved by a vote of 13 to 9 the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It also unanimously approved the nomination of Scott Dahl to be Inspector General of the Department of Labor.

The ranking member of the HELP Committee, Lamar Alexander (R-TN), stated in a press release that he expected Griffin to be confirmed by the full senate in an up or down vote.   Alexander also indicated he was looking for a long-term fix to take partisanship out of the NLRB.

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Secretary of Labor-Designate Thomas Perez Faces Questioning at His Confirmation Hearing Over Deal Made in Whistleblower Case

By Edwin S. Hopson

On April 18, 2013, the U.S. Senate Health, Education, Labor and Pensions Committee held a hearing on the nomination of Thomas Perez to be the U.S. Secretary of Labor.  The ranking Republican on the committee, Senator Lamar Alexander (R-Tenn.), questioned Perez regarding his role in the Justice Department’s deciding not to intervene in a whistleblower case pending in Minnesota during the time Perez has been in charge of the Civil Rights Division at the Department of Justice.  Under the federal False Claims Act, if a recipient of federal funds misuses or misappropriates federal funds, it can be prosecuted under that law and any person (relator) who pursues that case can receive a portion of the recovery.  At the outset of such cases, the federal government is permitted time to consider whether it wants to intervene as a party to the case.

Senator Alexander asked Perez if there had been an agreement with city officials in St. Paul, Minnesota that they would not appeal a specific case to the Supreme Court that could have resulted in a decision unfavorable to the Civil Rights Division’s position on discrimination law in exchange for not intervening in the pending whistleblower case against St. Paul. Perez indicated that while he had requested the St. Paul officials to not appeal the discrimination case, it was not his decision as to whether the government would intervene in a whistleblower case. Perez testified that that was a decision to be made by a colleague—the head of the Justice Department’s Civil Division.  Perez did indicate that such an agreement was ultimately reached, however, but that it had been initially proposed by St. Paul officials and the decision not to intervene had been made by the Civil Division not his Division . Perez further testified that it was his understanding that the Civil Division had concluded that the St. Paul case lacked merit.

Alexander contended that by not intervening in the whistleblower case in Minnesota, the federal government had in fact missed out on a $200,000,000 recovery that ultimately resulted in the St. Paul False Claims Act litigation.

During the hearing, Alexander stated:

“Here is the way it looks to me: You are in one division of the Department of Justice. You see St. Paul in the Supreme Court with a case that you are afraid would produce the wrong result. To me it is an extraordinary thing that you would then become involved with the city of St. Paul – with another division of the Department of Justice and with the Department of Housing and Urban Development which had originally recommended that the whistleblower case be taken by the Department of Justice. And the end result after you’re involved with all this is that the Department of Justice declines to become involved in the whistleblower case.  We know that 90 percent of the time, when the Justice Department does get involved, the case succeeds. So it declines to become involved, the case doesn’t collect the money. St. Paul agrees to withdraw the lawsuit that might produce the result that you don’t like. That seems to me to be an extraordinary amount of wheeling and dealing outside the normal responsibilities of the Assistant Attorney General for Civil Rights.  It seems you have a duty to the government to collect the money [owed to taxpayers], a duty to protect the whistleblower who is left hanging in the wind, and at the same time it seems to me that you are manipulating the legal process to try to get the result you want in the Supreme Court in a way that seems inappropriate for the Assistant Attorney General of the US.”

Alexander also called on Perez to provide emails and other documents for which there is an outstanding subpoena.  Additionally, Alexander has requested copies of transcribed interviews obtained during the Department of Justice Inspector General’s earlier investigation of these allegations.

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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.