ALM Properties, Inc.
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Wobbly Agency Staggers Sideways
President Barack Obama stepped back into the fray over the National Labor Relations Board last week, nominating two lawyers to fill vacant seats at an agency whose membership has drawn criticism from Republicans and questions of legality from a federal appeals court.
Obama tapped two Republican attorneys to join the panel, seeking to fill open slots as the U.S. Department of Justice prepared to defend the constitutionality of two controversial recess appointments to the five-member, bipartisan board.
Republicans who oppose the recess appointments heralded the April 9 nominations of Arent Fox partner Harry Johnson III and Morgan, Lewis & Bockius partner Philip Miscimarra as a step in the right direction. But that didn't stop Republicans in the House from pushing through legislation three days later that would shut down the board until the Senate confirms new members, or the U.S. Supreme Court rules on the recess appointments.
The Democrat-controlled Senate is viewed as highly unlikely to pass the House bill. But with legal challenges unsettled, labor and employment lawyers say the White House faces a tough fight in bringing stability back to the moribund board.
The U.S. Court of Appeals for the D.C. Circuit in January invalidated the president's recess picks, and federal appellate courts in Philadelphia and Richmond are still reviewing the constitutionality of the appointments in separate challenges. The administration said it plans to ask the Supreme Court to overturn the D.C. Circuit decision, which could invalidate hundreds of board decisions.
With their legal status in limbo, Obama renominated the recess appointees, Sharon Block and Richard Griffin Jr., both Democrats, in February. He also renominated board chairman Mark Gaston Pearce, a Democrat, on April 9, meaning that the Senate has a full slate of candidates to vote on.
Republicans have called upon Block and Griffin to resign. Harold Coxson, chairman of the governmental affairs practice at Ogletree, Deakins, Nash, Smoak & Stewart, says the GOP push-back was a bad omen for the chances of confirmation for the newly nominated board members. "I think that package, as a package, is doomed," Coxson says.
Following the announcement of Johnson's and Miscimarra's nominations, Senator Lamar Alexander (R-Tennessee), ranking member of the Committee on Health, Education, Labor, and Pensions, repeated his call for Block and Griffin to step down. "As the Senate considers the nominees, the two individuals who were unconstitutionally appointed should leave, because the decisions in which they continue to participate are invalid," he said in a statement.
In a joint statement, Representatives John Kline (R-Minnesota), chairman of the Education and the Workforce Committee, and Phil Roe (R-Tennessee), who leads the subcommittee on health, employment, labor, and pensions, said the new nominations were welcome, but that action was needed to address the board's "legal uncertainty."
Given Republicans' historical involvement in picking Republican board nominees, however, University of North Carolina School of Law professor and former NLRB attorney Jeffrey Hirsch says that Johnson's and Miscimarra's nominations could be a sign of progress. "The fact that names came up to be nominated tells me there's probably Republicans who think this might happen or are willing to let this happen," he says.
Holland & Knight partner Michael Starr, a member of the firm's labor and employment practice group, who writes on employment law issues for The National Law Journal, says the uncertainty facing the board has made it difficult for employers and employees to know how to proceed. "It works much better when labor and management know the rules of the game," he says.
Obama nominated Block and Griffin in mid-December 2011. Several weeks later, facing Republican opposition, Obama announced that he was exercising his recess appointment authority during a Senate recess. At the time, the Senate was meeting in pro forma sessionswhere one member, in a nearly empty chamber, opened and closed the session in just minutes every three days. Justice Department lawyers argued the Senate was in de facto recess and not conducting business.
The D.C. Circuit this year concluded that the appointments were unconstitutional, however, because they didn't occur during "the recess"that is, the intersession breakof the Senate. "Allowing the president to define the scope of his own appointments power would eviscerate the Constitution's separation of powers," thenChief Judge David Sentelle wrote for the unanimous three-judge panel in Noel Canning v. NLRB.
William Kilberg, a partner in the labor and employment practice group at Gibson, Dunn & Crutcher, says the Senate used to be more willing to accept five-member packages as a compromise of "some of your guys, some of our guys." Growing distrust between Republicans and Democrats, however, has made it harder in recent years to put those packages together for the Senate, he says.
Johnson and Miscimarra were "very strong choices," Kilberg says, but that likely wouldn't be enough for Republicans to approve them without scrutinizing all of the nominees. "They may confirm them at one time . . . but I think each one of them is going to have to stand on his or her own merit," he adds.
Both handle management-side labor matters. Johnson, who works in Arent Fox's Los Angeles office, said in a statement that he was "honored and thrilled" to be appointed. Miscimarra, who works in Morgan Lewis's Chicago office, said in an email, "It would be a privilege to serve."
AFL-CIO president Richard Trumka said in a formal statement that although Johnson and Miscimarra had "views on labor relations matters that we do not agree with," he urged the Senate to confirm the full group. "Working people need and deserve a functioning NLRB, and confirmation of a full package will provide that stability," he said.
The NLRB hasn't had a full panel of Senate-confirmed members since 2003. "That's pretty pitiful," says former board chairwoman Wilma Liebman, who left the agency in 2011. "I would like to think that there's enough will to have government work . . . that there would be enough sentiment on both sides that it's not good to have a federal agency under such a cloud and at risk of not being able to operate."
A version of this story appeared in The National Law Journal, a sibling publication of Corporate Counsel.