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Sep 11, 2014

By Michael J. Lotito

A day after the U.S. Senate returned from its summer recess, the Senate Committee on Health, Education, Labor and Pensions held a hearing to discuss the nomination of former recess appointee Sharon Block to be a member of the National Labor Relations Board.

President Obama announced his intent to re-nominate Block to the NLRB in July. Block previously served as a member of the Board from January 2012 – when the President seated her and two other members via recess appointment – until the summer of 2013, when her nomination was withdrawn as part of a Senate deal to allow votes on the five current NLRB members.

Re-seating when term was ruled unconstitutional

In June of this year, the U.S. Supreme Court in the Noel Canning decision held that Block’s recess appointment was invalid.

During the hearing, several lawmakers questioned the appropriateness of re-seating a member whose prior term was held unconstitutional.

Sen. Lamar Alexander, R-TN, noted that there are 436 NLRB decisions that were issued between January 2012 and July 2013 that are no longer good law and must be re-decided. He questioned Block’s ability to be impartial should she be involved in that reconsideration process, as he claimed she has “demonstrated a willingness to tilt the playing field in favor of organized labor.”

Block evaded several questions about specific cases and regulatory activity, including the pending changes to election rules and Excelsior list information, organizing student athletes, the Board’s 2012 decision in Fresenius USA Manufacturing, Inc. and International Brotherhood of Teamsters, and the propriety of the NLRB General Counsel taking a position on joint employment when a Board case on this very issue is still pending. Block claimed that since she might be confirmed to the Board, it would not be appropriate to weigh in on these issues at this time.

A “lack of equilibrium” on the Board?

Sen. Orrin Hatch, R-UT, asked Block whether she planned to recuse herself from cases she participated in that now must be reconsidered. Block responded that “if a party were to make a request to recuse, I would take that request seriously.” In addition, she said she would consult with the agency’s ethics officials to determine whether recusal was necessary. She noted that the deliberation process would be different, as she would be working with new colleagues this time around should she be confirmed.

Sen. Tim Scott, R-SC, focused his inquiry on the Board’s finding in Karl Knauz Motors, Inc. that an employer’s “courtesy” rule was over broad and thus violated the National Labor Relations Act. Scott asked how such a rule could possibly be inappropriate, and found fault with what he perceived as a “lack of equilibrium” on the Board.

Block responded that the NLRB  is often faced with “competing interests,” and tries to “draw a line” between policies that seek professionalism and decorum and those that could be seen as limiting an employee’s ability to “speak frankly and honestly about their working conditions.”

Vote on Block expected by December

While the Board is currently operating at full capacity, Member Nancy Schiffer‘s term is set to end on Dec. 16, 2014. Therefore, a vote on Block’s nomination is expected to take place before then.

Meanwhile, Sen. Alexander announced that next week he and Sen. Mitch McConnell, R-KY, would introduce legislation “to restore the NLRB to its original purpose,” which is to “act as an umpire instead of an advocate.”

This was originally published on Littler Mendelson’s Workplace Policy Update blog. © 2014 Littler Mendelson. All Rights Reserved. Littler®, Employment & Labor Law Solutions Worldwide® and ASAP® are registered trademarks of Littler Mendelson, P.C.