Obama Will Again Nominate Block to NLRB; Attorney Held Invalid Recess Appointment

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By Lawrence E. Dubé  

July 11 — President Barack Obama July 10 announced his intent to nominate attorney Sharon Block (D) to be a member of the National Labor Relations Board.

Block is currently a Labor Department lawyer, but she served as a board member for more than a year under a presidential recess appointment that the U.S. Supreme Court recently held was unconstitutional.

The White House announced the president's intention without specifying which of the board's five seats the veteran lawyer would be nominated to fill. There are no board vacancies at present, but Member Nancy J. Schiffer (D) is serving a term that will expire Dec. 16.

Obama is likely to want to achieve Senate confirmation of a nominee for Schiffer's seat—whether it's Block, Schiffer or another nominee—while Democrats hold a majority in the Senate.

Obama is likely to want to achieve Senate confirmation of a nominee for Schiffer's seat—whether it's Block, Schiffer or another nominee—while Democrats hold a majority in the Senate. NLRB members are appointed for five-year terms, and confirming a nominee this year could preserve the board's 3-2 Democratic majority for at least several more years.

Experienced Lawyer, Former Member

Block is presently a senior counselor in the DOL's Office of the Secretary, a position she's held since August 2013.

Earlier in her career, Block served as deputy assistant secretary for congressional and intergovernmental affairs at the DOL, worked as senior labor and employment counsel for the Senate Health, Education, Labor and Pensions Committee, and served as a special assistant in the Office of the General Counsel at the Equal Employment Opportunity Commission.

Block was a senior attorney to NLRB Chairman Robert Battista from 2003 to 2006 and was an attorney in the NLRB's appellate court branch from 1996 to 2003. Before going to the NLRB, she began her legal career as an associate at Steptoe & Johnson and was assistant general counsel at the National Endowment for the Humanities.

Block earned a bachelor's degree in history from Columbia University and a law degree from Georgetown University.

Appointment Fight Entangled Earlier Nomination

Obama first nominated Block, along with Terence F. Flynn (R) and Richard F. Griffin (D) for seats on the NLRB in December 2011. The Senate had taken no action on the nominations by January 2012, when the expiring recess appointment of then-Member Craig Becker (D) threatened to leave the agency without a three-member quorum required for the board to decide cases and take other official actions.

The president announced Jan. 4, 2012, that he was giving recess appointments to Block, Flynn, and Griffin, and the three appointees were sworn in a few days later. Joining Chairman Mark Gaston Pearce (D) and then-Member Brian E. Hayes (R), they gave the board its first full five-member complement since August 2010.

The recess appointments touched off a prolonged series of legal challenges over the president's authority to make appointments without the advice and consent of the Senate. The White House contended that the Senate was effectively in a recess in January 2012 that allowed the president to take action, while senators contended that holding periodic pro forma sessions supported their contention they were in session, not in a recess.

Block Left Board in 2013 Deal

The Supreme Court held June 26 in NLRB v. Noel Canning, 2014 BL 177533, that the Senate was in session when the president announced recess appointments.

The Noel Canning ruling means the NLRB lacked a properly appointed three-member quorum from January 2012 until mid-2013, when Democrats and Republicans reached an agreement that allowed Senate confirmation votes on four nominees and brought the board up to a full complement of five members.

In that July 2013 agreement, Obama withdrew his nominations of Block and Griffin to serve on the board, and nominated Democrat Schiffer for the seat held by Block and Kent Y. Hirozawa for Griffin's seat. The Senate voted July 30 to confirm all of the president's nominees.

Griffin was later nominated and confirmed to serve as NLRB's general counsel, but Block left the NLRB and went to DOL.

Senate Confirmation Now Likely

Block will likely be able to win Senate approval for her to return to the NLRB. The Senate has changed its procedures to allow confirmation of executive branch nominees by a simple majority, and Democrats presently control Congress's upper chamber.

Block and Griffin both drew some criticism from Republicans who argued they shouldn't have accepted presidential appointments that were later determined to have been made without constitutional authority. But the two lawyers addressed the argument during a May 2013 confirmation hearing in the Senate HELP Committee that took place before the White House withdrew their nominations.

Both nominees pointed out that the legal dispute ultimately resolved in Noel Canning was a complex one. Block stressed that the public relied on the NLRB to process and resolve cases and it was important to maintain the quorum that allowed the agency to function while the legal issue of the president's appointment power was resolved by the courts.

Ranking Member Lamar Alexander (R-Tenn.) expressed dissatisfaction with Block and Griffin over the recess appointments, but said they had “distinguished backgrounds,” and the HELP committee cleared both nominations.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com