President Will Withdraw Controversial NLRB Nominee

By Michael J, Lotito

Perhaps sensing former recess appointee Sharon Block‘s confirmation to the National Labor Relations Board would be an uphill battle, President Obama has reportedly announced that he is withdrawing her nomination.

According to a report by Edward-Isaac Dovere of Politico, the President will instead name Lauren McFerran, chief labor counsel for the Senate Committee on Health, Education, Labor and Pensions (known as HELP), as his choice to be the fifth NLRB member.

Many U.S. Senators have been of the mindset that Block should not be “rewarded” with a Board position after the U.S. Supreme Court deemed hers and current Board General Counsel Richard Griffin’s recess appointments unconstitutional in Noel Canning v. NLRB.

Clock is ticking for current NLRB

If HELP counsel McFerran is indeed nominated, she will likely be considered by the “new” HELP Committee of the 114th Congress in January 2015. Now that the Republicans have taken control of the Senate, the HELP Committee is expected to be chaired by current ranking member Lamar Alexander, R-TN, who has been critical of the NLRB’s perceived activist slant, and has introduced legislation to curb partisanship at the Board and provide oversight of the General Counsel’s activities.

This future hearing will give HELP Committee members a chance to question the nominee about her views of the impending expedited election rule, scope of joint employment relationship for liability purposes, and boundaries of employees’ Section 7 rights, among other contentious issues currently on the NLRB’s radar.

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The clock is ticking for the Board, as NLRB member Nancy Schiffer‘s term expires on Dec. 16, 2014. Once Schiffer leaves, the NLRB  will be operating with two Democratic and two Republican members. Thus, there is even more pressure from the current Board to release its election representation rule and issue decisions in controversial cases before Schiffer’s term expires.

A push for presidential nominees in lame-duck session

While it is unclear when the Senate would consider McFerran’s nomination if she is indeed named as Block’s replacement, the HELP Committee is scheduled to hold a hearing today to discuss the nominations of P. David Lopez to serve as General Counsel of the Equal Employment Opportunity Commission, and Charlotte Burrows to serve as an EEOC Commissioner.

Although the current lame duck session of Congress is unlikely to result in any significant legislation, the Senate will be very active in pushing through as many Presidential appointees as possible. Stay tuned.

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.

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