As part of an announcement of 14 administration appointments issued by the White House on July 10, 2014, President Barack Obama announced that he was nominating pro-labor Democrat Sharon Block — currently serving as Senior Counselor in the Office of the Secretary at the Department of Labor — to a term as a member of the National Labor Relations Board (NLRB) starting on December 17, 2014. Once confirmed, Block will hold an NLRB term that does not expire until December 16, 2019, and keep the board in the control of pro-labor Democrats until member Kent Y. Hirozawa’s term expires on August 27, 2016.
If Block’s name sounds familiar, it is because she previously served as one of President Obama’s recess appointments to the NLRB, from January 9, 2012, through August 2, 2013. She left the board as part of a July 2013 Senate deal to avoid the “Nuclear Option,” a change in Senate filibuster rules on confirmations of Presidential appointments. However, this deal only lasted four months. In November 2013, the Senate voted 52-48, with all Republicans and three Democrats voting against, to eliminate the use of the filibuster against all executive branch nominees and judicial nominees other than to the Supreme Court. Ironically, this rule change now virtually assures that Block will be confirmed as a member of the NLRB by the Democrats in control of the Senate to replace departing board member Nancy J. Schiffer, also a Democrat.
The re-appointment of Block to the NLRB will effectively guarantee that the Supreme Court’s ruling in NLRB v. Noel Canning, 573 U.S. ___ (June 26, 2014), while remaining an important constitutional law precedent on the subject of presidential recess appointments, will have no impact on any of the decisions issued by the NLRB during the period that the Supreme Court determined that it operated without a lawful quorum.
According to NLRB spokesperson Gregory King, “there were about 100 cases in federal appellate court that challenged decisions made by recess appointees.” While the NLRB may publicize that it is swamped reviewing all of those appealed decisions that have or will be returned to the NLRB by those circuit courts, with both Block and Mark Gaston Pearce as part of the board majority that will be reviewing the same decisions that it issued previously, the same outcomes are virtually assured.
The other Democrat recess appointment to the board that was the subject of Noel Canning, Richard F. Griffin, Jr., has already made his return to the NLRB, but not as a board member. After being confirmed by the Senate, Griffin was sworn in as General Counsel of the NLRB on November 4, 2013, for a four-year term. As General Counsel, Griffin sets the agenda for the regional offices of the National Labor Relations Board to follow in enforcing the National Labor Relations Act. His confirmation virtually guarantees that this important job will remain in the hands of the former General Counsel of the International Union of Operating Engineers. (The lone Republican recess appointment to the NLRB made at the same time as Block and Griffin, Terence Flynn, resigned from the board effective July 24, 2012, in anticipation of a critical ethics report.)
Noel Canning has clarified the president’s ability to make appointments when the Senate is considered to be in recess. However, its impact on the hundreds of decisions issued by the improperly seated NLRB should be minimal. With the new board virtually the same as the old board, there should be little, if any, changes when the NLRB reviews and reissues those decisions.
The following chart sets forth the terms and alignments of the current members of the NLRB:
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