Client Bulletin #505
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The Senate Health, Education, Labor, and Pensions Committee recently voted on each of President Obama's five pending nominations to the National Labor Relations Board. Separate votes were taken on each nominee, and each was approved. The two Republican nominees, Harry I. Johnson, III, and Philip A. Miscimarra, received unanimous approval, while the Democrats, current Chairman Mark Gaston Pearce, and "recess" appointees Richard F. Griffin, Jr., and Sharon Block, were approved with a vote largely along party lines.
Senate Majority Leader Harry Reid (D-Nev.), said that he would wait until July to bring all nominations for key positions for a vote by the full Senate, including that of Thomas Perez to Secretary of Labor, whose nomination was approved by the HELP Committee in a 12-10 party-line vote the week before the committee voted on the five Board nominations. Another nomination that may be brought to a vote in July is that of the NLRB's Acting General Counsel, Lafe Solomon, who was re-nominated for the General Counsel position last week. The nomination of Solomon, who has been serving since June 2010 in an "acting" role pursuant to the Federal Vacancies Reform Act of 1998, may face strong Republican opposition in the Senate HELP Committee, but ultimately he is expected to be approved with another party-line vote.
Reid is reportedly concerned that a filibuster from the Republican side might block certain nominations, including those of Griffin and Block. Sen. Lamar Alexander (R-Tenn.), Minority Ranking Member of the HELP Committee, has indicated that he is opposed to the nominations of Griffin and Block because they continued to serve after their recess appointments were found to be invalid in the Noel Canning case. The NLRB has petitioned the Supreme Court to review the Noel Canning decision and, as we recently reported, may do likewise with the New Vista decision. Republicans generally contend that the Board should hold off on issuing new decisions while the Noel Canning case is pending. Democrats and their allies in organized labor counter that the Board's work is needed and should continue pending the ultimate outcome. Meanwhile, Chairman Pearce's current term ends in August, and the Board needs a quorum of at least three members to issue decisions and take other actions.
In the event of a filibuster, current rules require a vote of 60 senators (three-fifths of the Senate) to invoke cloture, which limits the time for consideration, breaks the filibuster and brings the nominations for a vote. Reid and others of his party have indicated that Reid may seek a change of the Senate rules to deal with the filibuster issue. If that occurs, the politics will go far beyond the Board and these nominees.
About Constangy, Brooks & Smith, LLP
Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit www.constangy.com.