Senate Labor Committee Approves Five NLRB Nominees; Old Issues Remain

The National Labor Relations Board, strictly speaking, should have shut down nearly five months ago. But it has kept on going anyway. And even if President Obama’s slate of five nominees takes office, the issues surrounding its legal limbo almost certainly will continue onward to the Supreme Court.  On May 22, the Senate Labor Committee approved all five and sent their names in one package for a full floor Senate vote.  In February the president had re-nominated two members, Sharon Block and Richard Griffin, both of whose recess appointments were declared unconstitutional on January 25 by a federal appeals court. And in April, Obama named three more persons to round out the five-member board – Harry Johnson, Philip Miscimarra and Mark Pearce. Sound complicated? It’s even more so in light of a new bill passed by the House that could shut down the agency indefinitely.

The National Labor Relations Board (NLRB) was established in 1935 as part of the National Labor Relations Act to serve as a neutral arbiter in private-sector labor disputes. Aided by staffers at headquarters and in 26 regional offices, the board investigates alleged unfair labor practices, issues decisions, holds hearings and establishes regulations. At full strength, it has five members. Unfortunately, full strength, even with recess appointments, has been a rare condition these last half-dozen years. And the last time that five full-term members served simultaneously was in 2003. For the last several months, the NLRB has had just one legitimate member: Mark Pearce. Though that’s two short of the three necessary to constitute a quorum, the board seems not to have noticed. As of June 14, the NLRB has issued 265 decisions since the District of Columbia federal circuit court’s Noel Canning v. NLRB ruling on January 25. If one goes back to August 27, 2011, at least 1,235 published and unpublished board decisions could be undone. The court in Noel Canning ruled that President Obama’s provisional January 4, 2012 recess appointments of Block, Griffin and Terence Flynn (the latter would resign several months later) occurred when Congress technically wasn’t in recess. NLPC, here and here, provided detailed explanations of the controversy and why the decision ultimately was a sound one.

Perturbed over this paralysis, President Obama re-nominated Block and Griffin in February. And in April, he submitted to the Senate the names of Pearce, Johnson and Miscimarra. The Senate Health, Education, Labor and Pensions (HELP) Committee on Wednesday, May 22, cleared all five nominees and sent their names to the full Senate for confirmation. The committee unanimously approved the two Republican nominees, Johnson and Miscimarra. But only six of the 10 Republican senators voted to approve Pearce. And only one, Sen. Lisa Murkowski, R-Alaska, said yes to Block and Griffin. In the case of Griffin, the reticence to approve by certain members was understandable; last October he was named as a defendant in a racketeering suit in Los Angeles federal court dating back to his days as lead counsel for the International Union of Operating Engineers.

As befits political custom, the National Labor Relations Board normally operates with three members from one major party and two from the other. Under a Democratic administration, the board effectively has three Democrats and two Republicans when all vacancies are filled. NLPC has discussed the backgrounds of Democrats Block, Griffin and Pearce earlier. The two Republicans – Johnson and Miscimarra – thus far are unknown to readers of this site.

Harry I. Johnson III, nominated to serve two years of a five-year term, has been a partner with the Labor Employment & OSHA practice group in the Los Angeles office of the Washington, D.C.-based law firm Arent Fox LLP since 2010. Before that, he served as an associate and then as a partner with Washington-based litigation powerhouse Jones Day. A graduate of Johns Hopkins University, Tufts University’s Fletcher School of Law and Diplomacy, and Harvard Law School, Johnson has represented numerous employers in collective bargaining, arbitration, mediation and injunction cases. Recent clients include Chevron, Walt Disney Company, ConAgra, Macy’s Inc. and Penske Automotive Group.

Philip Miscimarra, a native of Pittsburgh, has been a lawyer specializing in labor issues for at least 30 years. He has served since 2005 as partner in the Chicago office of the Philadelphia-based Morgan Lewis & Bockius LLP, and prior to that, with Seyfarth Shaw LLP, headquartered in Chicago. For more than 15 years, Miscimarra also has been a senior fellow at the University of Pennsylvania’s Wharton Business School. He has extensive experience in the area of labor law and has written three books on the NLRB. In February 11, 2011 testimony before a subcommittee of the House Committee on Education and the Workforce, he argued against further moving labor law toward favoring union interests: “All too often in the United States,” he stated, “the union’s incentive is to use the baton to injure or maim the employer, instead of running the race against international competitors. Companies and employees suffer greatly from this type of conflict, especially small businesses. Expanding the Act’s coverage and making the weapons more destructive – without direction from Congress – runs counter to the NLRA’s primary objective, which is to foster economic stability.”

The Senate HELP Committee has sent the names of all five nominees to the full Senate to be voted on as a group, a sure sign that committee leaders anticipate a rough going for Block and Griffin. Senate Minority Leader Mitch McConnell, R-Ky., has vowed to oppose the deal if those two are a part of it. Leading Democrats are countering with a “let’s get this done” attitude. Committee Chairman Tom Harkin, D-Iowa, explained his position this way: “While it is disappointing that some of my Republican colleagues refused to support the entire package of nominees in today’s Committee vote, I hope that as we move to the floor we can put politics aside and do our duty to consider all of these nominees fairly on their own merits.” Senate Majority Leader Harry Reid, D-Nev., in rebuking Sen. McConnell, stated: “The problem of gridlock in Washington is real and it needs to be fixed. Despite the agreement we reached in January, Republican obstruction continues unabated.” Reid spokesperson Adam Jentleson indicated that his boss wants “something dramatic” to change soon, or “he will pursue other options.” Knowing how Reid masterminded the circumvention of parliamentary rules that secured passage of the Obama health care bill back in March 2010, the term “other options” has a certain ominous ring.

Chairman Mark Gaston Pearce’s current term expires on August 27. In lieu of Senate approval of the nominee package, the National Labor Relations Board literally would have no members at that point. A good many members of Congress, mainly Republicans, believe such an outcome would make a mockery of the whole idea of having a board. And they’ve put forth legislation to make their point.

On March 13, the House, led by Rep. Phil Roe, R-Tenn., introduced a bill, the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), that would force the NLRB to cease all activity requiring a three-member quorum. The measure also would prohibit the board from enforcing any action taken after January 2012. The restrictions on the board’s authority would be removed in the event: 1) the Supreme Court rules on the constitutionality of the recess appointments; 2) the Senate approves a constitutional board quorum; or 3) the terms of the unconstitutional recess appointees expire when the First Session of the 113th Congress adjourns. The Republican-controlled House on April 12 approved the bill by a 219-209 margin. The Senate, led by Sen. Lamar Alexander, R-Tenn., introduced its own version (S.850) on April 25, but no committee action so far has been taken.

Republican lawmakers argue they are putting principle above expediency. Rep. John Kline, R-Minn., stated that in absence of such legislation, the U.S. Court of Appeals for the District of Columbia Circuit’s Noel Canning decision, though sound in reasoning, would create enormous uncertainty for employers and employees alike who depend on the board to enforce the law. “You can’t go there and get a determination, or you get one that is immediately suspect and open to an appeal to a court that has already said it is unconstitutional,” Kline said on the House floor prior to the vote. “Every time this board makes a decision, it pours more uncertainty into an economy that is still struggling to come out.” Senator Alexander, the chief sponsor of the Senate bill, argues the bill would discourage unconstitutional appointments. Griffin and Block, he added, showed an “unprecedented lack of respect” for Congress by remaining on the board and recommended that they step down.

In the end, the Supreme Court is likely to have the final say. Already the case is headed there. The Justice Department on April 25 filed a petition for certiorari seeking Supreme Court review. The (Noel Canning) decision, wrote Solicitor General Donald Verrilli, “threatens a significant disruption of the federal government’s operations – including, most immediately, those of the National Labor Relations Board. Moreover, those effects can also be expected to extend to a wider range of federal agencies and offices because venue lies in the District of Columbia.” The company is in agreement on this. The appeals court decision, noted attorneys for Noel Canning in an amicus brief, presents a “constitutional question of extreme importance” and “calls into question the current authority of two major executive agencies.” The company is represented by the National Chamber Litigation Center, a division of the U.S. Chamber of Commerce, which served as an intervener when the case went before the circuit court.

The Senate, in the meantime, can facilitate this process by considering the NLRB nominees – or at least Sharon Block and Richard Griffin – separately. Rolling the approval of all five persons into a single vote would extend the uncertainty rather than remove it. By piggybacking a vote on Block and Griffin onto a vote on the others, supporters would be diminishing the ability of Congress to make informed choices in an atmosphere of open debate. Why shouldn’t the nominees be considered separately on their own merits? Had President Obama addressed the question more fully a year and a half ago, the current stalemate wouldn’t have happened, and NLRB’s reputation wouldn’t be so diminished.