Nuclear Stand Down: Senate Compromise Paves Way for Full Complement of Pro-Labor Controlled NLRB

by Fisher Phillips
Contact

A bold threat by Senate Majority Leader Harry Reid (D-Nev.) to change Senate filibuster rules to reduce the number of votes necessary to approve Executive branch nominees – the so-called “nuclear option” – helped to ensure that the National Labor Relations Board will continue to advance its pro-labor agenda, at least through the current Administration’s term. 

On July 16, 2013, Sen. Reid backed away from this threat, announcing a bipartisan agreement under which the pending nominations of two controversial NLRB recess appointees would be withdrawn and replaced by two new Democratic nominees, in exchange for an agreement by Senate Republicans to forego any further challenges to the confirmation process. 

How Did It Get To This?

In recent months, the five-member NLRB had been on proverbial life-support, functioning with only three members, two of whom (Sharon Block and Richard Griffin) have been deemed unconstitutionally appointed by federal appellate courts, and a third (Chairman Mark Pearce) whose term was set to expire on August 27th.  Members Block and Griffin were appointed by the President back in January 2012, during what he considered to be a “recess” of the Senate. 

Those appointments have since been invalidated by the U.S. Courts of Appeals for both the D.C. Circuit and the 3rd Circuit on the basis that there was no valid recess when the appointments were made.  The U.S. Supreme Court has accepted the D.C. Circuit case for review, but a decision is not expected until early next year.  In the meantime, hundreds of decisions issued by the three-member Board over the past two years are now vulnerable to being reversed.

Republicans have steadfastly objected to the nominations of Block and Griffin, along with those of several other key federal agency posts, including Labor Department nominee Thomas Perez.  Confronting the threat of a rule change that would upset decades of parliamentary procedure and effectively give Democrats what they wanted anyway, Republicans seemingly had little choice but to compromise.  Shortly after reaching the agreement, the President nominated Nancy Schiffer and Kent Hirozawa to replace members Block and Griffin. 

Schiffer is a recently retired associate general counsel for the AFL-CIO, and Hirozawa is currently serving as chief counsel to Chairman Pearce.  The Senate Health, Education, Labor, and Pensions Committee is scheduled to hold a confirmation hearing on the new nominees on July 23.  The full Senate is expected to swiftly consider and approve the nominations, along with those of Pearce and two pending Republican nominees (Harry Johnson and Philip Miscimarra), as early as next week.  Johnson, Miscimarra, and Pearce have already been approved by the committee. 

What It’s Likely To Mean

Tuesday’s political showdown was a win for unions, breathing new life into a Board that has already shown a distinct predilection toward organized labor.  While this development does not necessarily impact the challenges pending before the Supreme Court or the spate of decisions issued up to now, it does clear the way for the Board to exercise legitimized authority in a number of areas. 

Consequently, the agency can be expected to continue down the path of increasingly regulating union and nonunion business alike by scrutinizing policies and procedures for any perceived encroachment on protected concerted activity.  It also has the opportunity to reexamine and potentially reverse decades of long-standing precedent governing such items as representation rights in a nonunion setting, the voting eligibility of temporary employees, and the contractual obligations of successor employers.  Last, but certainly not least, the Board could conceivably revisit its previously proposed “quickie election” rules, which had been temporarily enjoined due to procedural hurdles that have now arguably been overcome. 

Put simply, this development is likely to empower the Board to continue down a “reformist” path by overturning long-standing precedent, engaging in pro-union rulemaking, and otherwise implementing the agenda of Big Labor. 

We’ll be carefully monitoring changing legal developments emanating from this agency over the next several months.  In the meantime you should ensure that your supervisors are properly trained to administer any new requirements. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!