The last three days have brought a flurry of important developments for employers. On Wednesday, the Fourth Circuit joined the D.C. Circuit (Noel Canning) and Third Circuit (New Vista Nursing) in overturning President Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National Labor Relations Board. In NLRB v. Enterprise Leasing Company Southeast, the Fourth Circuit largely agreed with its sister courts, concluding that “the term ‘the Recess,’ as used in the Recess Appointments Clause, refers to the legislative break that the Senate takes between its ‘Session[s].’ In other words, the term ‘the Recess’ means the intersession period of time between an adjournment sine die and the start of the Senate’s next session.” The D.C. Circuit’s Noel Canning decision is currently pending before the Supreme Court.
The Fourth Circuit’s ruling comes on the heels of the Senate’s announcement of a compromise on several of President Obama’s nominees, including controversial Department of Labor Secretary Thomas Perez. The Senate confirmed Mr. Perez yesterday by a slim 54-46 margin. He previously served as an Assistant Attorney General in the Department of Justice’s Civil Rights Division and headed Maryland’s Department of Labor.
Another part of the compromise hammered out by Senators includes returning a full complement of five members to the National Labor Relations Board late this summer. President Obama has agreed to withdraw his February 2013 nominations of recess appointees Griffin and Block and to replace them with Democrats Kent Hirowaza and Nancy Schiffer.
Mr. Hirozawa is currently chief counsel to Chairman Pearce. Before joining the NLRB staff in 2010, he was a partner in a labor-side law firm in New York City. Mr. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986, and as a pro se law clerk for the U.S. Court of Appeals for the Second Circuit from 1982 to 1984. He will be appointed to former Member Liebman’s seat, and his term would expire in August 2016.
Ms. Schiffer was Associate General Counsel to the AFL-CIO from 2000 to 2012, after spending nearly twenty years as Associate and later Deputy General Counsel at the UAW. Earlier in her career, Ms. Schiffer was a staff attorney in the NLRB’s Detroit Regional Office and worked in private practice. President Obama is nominating her to fill former Member Becker’s seat, meaning that her term would expire next August.
The other nominees we discussed in April, Republicans Philip Miscimarra and Harry Johnson, III and current Chairman Mark Gaston Pearce, a Democrat, will also be confirmed as part of the Senate deal. News outlets are reporting that the President will soon nominate Member Griffin as the Board’s new General Counsel. The White House has not made any announcements about the futures of Member Block or current Acting General Counsel Lafe Solomon, who was nominated two years ago but never confirmed by the Senate.