Wyatt Employment Law Report


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Sharon Block’s Nomination for Seat on NLRB is Approved by Senate Committee

By Edwin S. Hopson

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.


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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’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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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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NLRB Nominees Hirozawa and Schiffer Are Approved By the Senate HELP Committee

By Edwin S. Hopson

On July 24, 2013, the Senate Health, Education, Labor and Pensions Committee held an executive session to discuss and vote on the President’s recent nominations of Democrats Kent Yoshiho Hirozawa and NancyJeanSchiffer to be Members of the National Labor Relations Board.  Hirozawa is currently Chief Counsel to NLRB Chairman Pearce.  Schiffer was most recently Associate General Counsel of the AFL-CIO.

Ranking Member Alexander (R-TN) voiced objections to both nominees, opining that he doubted their impartiality.  He also noted that some outstanding written questions to the two nominees remained to be answered.   On motion of Committee Chairman Harkin (D-Iowa) to report the two nominations favorably out of committee, both nominations were approved by a vote of 13 to 9. 

Harkin also agreed that the record should remain open for the consideration of answers to the outstanding questions, and stated that he expected a vote on the nominations by the full Senate during the week of July 29.


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NLRB Nominations Considered by the Senate HELP Committee

By Edwin S. Hopson

As part of the agreement regarding the Senate filibuster rules, on July 23, 2013, the Senate Health, Education, Labor and Pensions Committee held about a two hour hearing on the President’s recent nominations of Kent Yoshiho Hirozawa and Nancy Jean Schiffer to be Members of the National Labor Relations Board.  Both faced stiff questioning from Republican Senators on the Committee.  On July 24, 2013, the Committee is scheduled to vote on the nominations, to be followed by a vote by the full Senate later in the week on the nominations of Hirozawa, Schiffer and current NLRB Chairman, Mark Pearce.  It is not clear whether the full Senate will also vote on the confirmation of Republicans Harry Johnson and Philip Miscamarra, whose nominations were earlier favorably voted out of committee.


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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