Wyatt Employment Law Report


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Griffin Nomination to be NLRB General Counsel Moves Forward in Senate

By Edwin S. Hopson

On October 29, 2013, the Senate, in a vote of 62 to 37, invoked cloture on the nomination of Richard Griffin, Jr., to be General Counsel of the National Labor Relations Board.  This vote clears the way for his confirmation since clearly a majority of Senators favor his appointment.


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Griffin’s Nomination to be NLRB General Counsel to be Voted on by Senate

By Edwin S. Hopson

Senate Majority Leader, Harry Reid, has placed the nomination of Richard Griffin, Jr. to be General Counsel of the National Labor Relations Board on the Senate’s Executive Calendar for October 28, 2013, at which time there will be up to one hour of debate, equally divided, on the nomination.  His nomination was previously approved by the Senate HELP Committee, generally along party lines.  If confirmed, Griffin’s term will be for four years.


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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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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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Former Recess-Appointed NLRB Member Griffin Nominated to be NLRB General Counsel

By Edwin S. Hopson

On August 1, 2013, President Obama nominated Richard Griffin to be General Counsel of the National Labor Relations Board.  Griffin was one of the NLRB recess-appointed Members whose nomination was withdrawn by the President as part of the filibuster deal in mid-July.  The other recess-appointed NLRB Member, SharonBlock, whose nomination was also withdrawn, has been appointed as senior counselor to U.S. Labor Secretary Thomas Perez, according to an article in today’s New York Times.  Lafe Solomon continues to be Acting General Counsel at the NLRB.


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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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NLRB Nominees in the Middle of Senate Dispute Over Proposed Changes to Filibuster Rules

By Edwin S. Hopson

On July 11, 2013, Senate Majority Leader Harry Reid (D-NV) filed cloture on seven nominations including Richard Griffin, Sharon Block and Mark Pearce, all Democrats, to be Members of the National Labor Relations Board.  His motion also included Thomas Perez to be Secretary of Labor.  Republican Minority Leader Mitch McConnell (R-KY) then asked consent for the Senate to vote on Pearce, and NLRB nominees Harry Johnson and Philip Miscimarra, both of whom are Republican (the Republican Senators’ opposition to Members Griffin and Block centers on the fact that they were recess appointed at a time when Republicans contend the Senate was in session).  Reid objected to McConnell’s request setting up a debate over changing the filibuster rules in the Senate, sometimes called the “nuclear option.”

Reid publicly stated that he wants to amend the filibuster rule to exclude the President’s nominations to positions in Executive Departments and Agencies.  Reid contends that it takes only 51 Senators to pass such an amendment to the Senate’s rules.

McConnell and other Republican Senators have come out in strong opposition, indicating that if that takes place, the Senate will evolve into a simple majority institution, like the House of Representatives.

The final outcome may not be known until late on July 15 or sometime the next day.

In the meantime, the NLRB and the two recess appointees, Members Griffin and Block, have come to be in the center of what may turn out to be a major crisis in the Senate.