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. With legal challenges to the recess appointments unsettled, however, labor and employment lawyers said 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, Va., are still reviewing the constitutionality of the appointments in separate challenges. The government said it plans to ask the U.S. Supreme Court to overturn the D.C. Circuit decision, which, if left in place, could invalidate hundreds of board decisions. The petition is due on April 25. The U.S. House of Representatives voted April 12 to pass a bill to shut down the board until the legal question is resolved.
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 the U.S. Senate has a full slate of candidates to assess and 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, said 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 said.
Following the announcement of Johnson’s and Miscimarra’s nominations, U.S. Senator Lamar Alexander (R-Tenn.), 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.
SIGN OF PROGRESS?
In a joint statement, U.S. representatives John Kline (R-Minn.), chairman of the Education and the Workforce Committee, and Phil Roe (R-Tenn.), 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 said 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 said.
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, said 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 said.
Obama nominated Block and Griffin in mid-December 2011. Several weeks later, facing Republican opposition, Obama announced he was exercising his recess appointment authority during a Senate recess. At the time, the Senate was meeting in pro forma sessions — where 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 the appointments were unconstitutional, however, because they didn’t occur during "the recess" — that is, the intersession break — of the Senate. "Allowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers," then-Chief Judge David Sentelle wrote for the unanimous three-judge panel in Noel Canning v. NLRB.
In March, the Third and Fourth circuits took up labor board recess-appointment disputes. In the Fourth Circuit, Michael Shebelskie, arguing for the defense contractor Huntington Ingalls Industries Inc., said the Senate, and not the president, decides when it is in recess.
"We shouldn’t think it is wrong, we shouldn’t think it is weird, we shouldn’t think it’s a breakdown in the constitutional system if the senators want to say no," said Shebelskie, a Hunton & Williams business and appellate partner. "They could be in session, even under the board’s standard, 365 days a year and refuse to appoint anyone. That would be constitutionally permissible."
William Kilberg, a partner in the labor and employment practice group at Gibson, Dunn & Crutcher, said 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 said.
Johnson and Miscimarra were "very strong choices," Kilberg said, 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 said.
Both handle management-side labor matters. Johnson, who works in Arent Fox’s Los Angeles office, said in a statement he was "honored and thrilled" to be appointed. Miscimarra, who works in Morgan Lewis’ Chicago office, said in an email, "[I]t 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. "[W]orking 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," said 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," Liebman said.