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 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.
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.
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.
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.”
Wyatt Employment Law Report 