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By Michael Rose
Two current Democratic members of the National Labor Relations Board whose recess appointments and renominations have been called into question by a court decision and Senate Republicans will be replaced by new nominees as a result of an agreement reached in the Senate to avoid a controversial change of the chamber's rules, Senate leaders announced July 16.
In addition, as a result of the same compromise on the so-called “nuclear option,” which would have involved a simple majority of senators voting to change the rules to allow executive nominations to be subject to a 51-vote threshold, Thomas Perez, President Obama's pick for labor secretary, could see a confirmation vote in the coming days.
The agreement hammered out between Senate Majority Leader Harry Reid (D-Nev.) and Senate Republicans came after a meeting of nearly all 100 senators the evening of July 15 that lasted more than three hours. In exchange for dropping the threat of the rules change, Republicans agreed to allow votes on various executive branch nominees, including Perez. However, both sides agreed that new NLRB nominees were needed.
Meanwhile, the White House announced late July 16 that President Obama intends to nominate Democrats Kent Hirozawa, chief counsel to current NLRB Chairman Mark Gaston Pearce; and Nancy Schiffer, a former AFL-CIO associate general counsel, as new board members.
Schiffer served in her position at the AFL-CIO from 2000 until her retirement last year. Prior to that, she worked for 18 years as deputy general counsel of the United Auto Workers, and also worked in NLRB's regional office in Detroit. She holds a J.D. from the University of Michigan Law School.
Prior to his work for Pearce, Hirozawa was a partner at Gladstein, Reif, and Meginniss in New York, a firm representing unions and workers. He also worked as a field attorney in NLRB's New York office. He holds a B.A. from Yale University and a J.D. from New York University.
The Senate Committee on Health, Education, Labor, and Pensions has scheduled a confirmation hearing for July 23 on Hirozawa and Schiffer.
The full Senate is expected to consider the nominations of Pearce, and two Republicans--Harry Johnson and Philip Miscimarra. All three previously were voted out of the HELP committee (27 LRW 998, 5/29/13).
Reid said July 16 that votes on all five nominees could be expected by the time Congress departs for the August recess, possibly as early as late next week.
Sharon Block (D) and Richard Griffin (D) currently are serving on the board after being recess appointed by President Obama in January 2012 (26 LRW 9, 1/5/12). Those appointments were challenged in the U.S. Court of Appeals for the District of Columbia Circuit, which ruled they were invalid (27 LRW 183, 1/30/13). The U.S. Supreme Court has agreed to review the decision during its next term (27 LRW 1211, 6/26/13). In the meantime, the board has continued to issue decisions.
But with Pearce's term set to expire next month, the board would find itself hobbled in the absence of new nominees being confirmed, because a quorum of three members is required for the board to issue decisions. Democrats in recent weeks have stepped up their efforts to bring President Obama's nominations up for a vote.
Republicans have maintained that Griffin and Block have been serving illegally. They have repeatedly called for their resignations, and have suggested that Obama nominate new candidates for the board positions.
Senators on both sides hailed the agreement as one that would allow the nominations to move forward without a rules change that would have incensed Republicans.
“I recommended back in January that the president send up two new nominees for the NLRB, since obviously the two nominees who were currently on the NLRB were unconstitutionally appointed,” Senate Minority Leader Mitch McConnell (R-Ky.) told reporters. “A couple of weeks ago, I renewed the conversation with the vice president and suggested that the way out of the dilemma that seemed to be heading our way was to send up two new nominees. So I'm pleased that the administration is going to send up two nominees.”
McConnell said that Sen. Lamar Alexander (R-Tenn.), the ranking member on the HELP Committee, already was involved in talks about how to go forward with the new nominations.
Sen. Tom Harkin (D-Iowa), the HELP Committee chairman, on the Senate floor July 15 said that Griffin and Block should continue to serve until the Supreme Court resolves the issue of their appointments, especially since various courts of appeal had ruled on the issue differently.
But speaking to reporters July 16, Harkin was pleased with the agreement.
“All in all it's going to turn out just fine,” Harkin said. “We now have a path forward to having a functioning NLRB for the remainder of Barack Obama's term and even into the next presidency. I'm very happy about that.”
In a written statement, Harkin said the agreement reached on the nominees was “not ideal,” but that it would “allow for a fully-confirmed Board for the first time in a decade, and that is a step forward for our country.”
“It is my hope that Republicans will make good on their word to give swift consideration to these nominees, and that this could bring a new beginning for the Board, so that the dedicated public servants at the agency can do their jobs without the constant political attacks and interference that we have seen in recent years,” Harkin said.
Alexander, meanwhile, in a statement said the agreement “allows the Senate to make clear that this president, or any president, cannot thumb his nose at the Senate's constitutional role in our system of checks and balances.”
He also emphasized that he previously had suggested that Obama send new nominations to the Senate instead of Griffin and Block.
President Obama, meanwhile, in a statement said he was “pleased that the Senate took action today to move forward on the nominees who have waited far too long for a vote.”
“Over the last two years, I've nominated leaders to fill important positions required to do the work of the American people, only to have those positions remain unfilled--not because the nominees were somehow unqualified, but for purely political reasons,” Obama said. “
Reaction from unions, which have pressed for board members to be confirmed for months, was mixed.
“Our top priority remains confirming a full National Labor Relations Board as soon as possible,” Service Employees International Union President Mary Kay Henry said in a statement. “We believe that this compromise, which will enable new nominees to receive up or down votes without obstruction in the Senate, is a step toward this goal. However, it is unfortunate that Sharon Block and Richard Griffin, two highly qualified nominees, were unfairly used as political pawns in the debate over Senate rules.”
Larry Cohen, president of the Communications Workers of America, also tempered his reaction.
“This agreement means that a Secretary of Labor, an administrator for the Environmental Protection Agency and a director for the Consumer Financial Protection Bureau, among others, finally will be confirmed. Several of these nominees have been held up by Senate gridlock for two years,” Cohen said. “Today's Senate action does raise this question: of the seven nominations, why were the two nominees to the National Labor Relations Board singled out?”
A representative of the AFL-CIO did not respond to a request for comment.
Mark Mix, president of the National Right to Work Legal Defense Foundation, in a statement called the agreement a “backroom deal” intended to “sell out independent-minded workers.”
“Even though the American people who are outraged by this rouge [sic] NLRB were not included in these discussions, Obama's NLRB appointments will pave the way for at least three more years of the very forced-unionism giveaways union bosses failed to obtain through the legislative process,” Mix said.
In addition to Perez and the NLRB nominees, under the agreement the Senate is expected to consider the nominations of Gina McCarthy to head the Environmental Protection Agency, and Fred Hochberg to be president of the Export-Import Bank.
The Senate also voted July 16 to confirm Richard Cordray as head of the Consumer Financial Protection Bureau.
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