All five nominees to the National Labor Relations Board appeared Thursday before a sharply divided U.S. Senate committee. Democrats urged their speedy confirmation while Republicans called the board biased and called upon two nominees serving under recess appointments to resign.
The board has not had five Senate-confirmed members in a decade, and it’s not clear the current slate of candidates is likely to change that—even though no senator questioned any nominee’s qualifications to serve.
"These candidates know, and everybody else up here knows, that this discussion is not about them," Senator Bernard Sanders (I–Vt.) said during the two-hour hearing before the Committee on Health, Education, Labor and Pensions.
He suggested that the ramifications of the impasse could go well beyond the NLRB. If Republicans filibuster the nominations, Sanders said, Democrats "should change the [Senate] rules and take a majority vote," he said. "At the end of the day in America, the majority is supposed to rule."
The fate of the nominees—three Democrats and two Republicans—is tied in part to a January decision by the U.S. Court of Appeals for the D.C. Circuit, which ruled in Noel Canning v. NLRB that the recess appointments of two board members were unconstitutional.That decision is on appeal to the U.S. Supreme Court. If it’s upheld, it’s likely that all board decisions since the appointments were made in January 2012 would be vacated for lack of a quorum.
Also on Thursday, a divided panel of the U.S. Court of Appeals for the Third Circuit fell in line with the D.C. Circuit, also ruling that an NLRB recess appointment was invalid because it was made when the Senate was not in recess.
Senator Lamar Alexander (R–Tenn.) pointed to the Third Circuit decision, suggesting that the recess appointees should step down now. "Recess appointments are supposed to be made during recess," he said. "My problem is in continuing to serve after such an unprecedented lack of respect for the prerogatives of Congress and the separation of powers."
One of the recess appointees, Richard Griffin Jr., who has been re-nominated as a board member, explained why he’s stayed on the job. "I took an oath to serve, and under the circumstances, since the Supreme Court has not rendered a final judgment, I felt it was very important to continue to do the important work of the board," said Griffin, who previously was general counsel to International Union of Operating Engineers.
Sharon Block, the other recess appointee who has also been re-nominated added, "The public that we serve relies on us to give them a fair hearing and bring resolution…. I thought it was incumbent on me to continue to provide that service while these issues are worked out in the litigation." A former official at the Department of Labor, Block previously served as the Senate Health, Education, Labor and Pensions Committee’s senior labor and employment counsel.
For the five-member board to continue to function, it urgently needs new members. Only one sitting member, Chairman Mark Gaston Pearce, has been confirmed by the Senate, and his term expires in August. A former plaintiffs-side labor lawyer, Pearce, a Democrat, has been re-nominated for a second term. Griffin and Block also are Democrats.
Also nominated is Republican Harry Johnson III, a labor and employment partner at Arent Fox in Los Angeles and Philip Andrew Miscimarra, a partner at Morgan, Lewis & Bockius in Chicago, who represented the U.S. Chamber of Commerce in a challenge to NLRB union election rules.
In his opening remarks, Johnson defended the NLRB’s mission. "We cannot have a free enterprise system in a modern America without labor law," he said. "I believe that the board must serve as an honest broker when it decides labor law cases."
Miscimarra acknowledged that "labor lawyers operate in a world where it can be difficult to find common ground," he said. "If confirmed, I will approach every decision with an open mind….I will try to forge agreements with fellow board members."
Senator Tim Scott (R–S.C.) criticized the existing board as "activist" and "about picking winners." He was particularly disdainful of a decision striking down a policy by BMW dealer Karl Knauz Motors Inc. that required employees to be courteous, calling the action "mind boggling."
Senator Elizabeth Warren (D–Mass.) followed up, noting that Scott "seemed to imply that the NLRB is working hard to make sure all employees in America are not courteous," and offered Pearce another chance to explain.
"We don’t have an issue with courtesy," Pearce said. "We had an issue with the sentence that prohibited [employees from] saying anything unfavorable about the employer."
For Warren, the fate of the NLRB nominees hits close to home—she was the force behind the creation of the Consumer Financial Protection Bureau, whose director, Richard Cordray, is also serving under a recess appointment. Obama made the appointments after Republicans refused to allow votes on the nominees.
"I am very concerned when senators use procedural technicalities or filibusters to block any nominations to the NLRB," she said. "This is not based on any substantive problems with the nominees, but on fundamental hostility to the work of the board."
The committee will vote on the nominees on May 29, chairman Tom Harkin (D–Iowa)said. "I certainly don’t agree with the politics or ideology of every candidate sitting before me, but it cannot be disputed that this is a highly skilled, competent, and experienced panel of labor or employment law experts," he said. "They deserve to be confirmed. They should be confirmed."
Jenna Greene is a reporter for The National Law Journal, a Legal affiliate based in New York.