After a long-evolving bit of brinksmanship over the continuing use of the filibuster in the Senate, a deal reportedly has been struck which paves the way for a five-member National Labor Relations Board to be seated near the end of the summer. Numerous media outlets report that the Senate this morning agreed to allow a number of President Obama’s stalled nominations to proceed to "up or down" confirmation votes. The first of those nominations, Richard Cordray’s nomination to Director of the CFPB, passed a cloture vote earlier.
As part of the reported deal, the President’s nomination of Sharon Block and Richard Griffin to the NLRB will be withdrawn, and two new nominees will be advanced for a confirmation vote to be held before August. Republicans had been voicing ongoing opposition to those two nominees on the grounds that they — and the Board itself — had continued to act following the federal court decisions finding their purported recess appointments unlawful.
What now? Assuming the deal shakes out as being reported, by September there will likely be a full complement of confirmed and properly seated Board members made up of Republican nominees Philip A. Miscimarra and Harry I. Johnson, III, two new Democrat nominees, and current Board Chairman, Democrat Mark Gaston Pearce. It would seem that the Noel Canning case and similar subsequent Court of Appeals decisions will become largely irrelevant, if not moot, in advance of their Supreme Court consideration. And, a Board similarly philosophically disposed to its majority decision-makers the past few years will set out to methodically endorse the rationale in hundreds of 2011 and 2012 decisions cast into doubt by Noel Canning.
In the end, litigants who found themselves affected by a three Member decision including former Member Craig Becker or either of the 2012 "recess appointees" may retain some grounds to appeal, and may ultimately free themselves of the decision for the time-being. But employers, employees and unions generally should expect the Board’s recent efforts to expand the scope of the NLRA’s protections to resume apace. Prudent employers will consider the invalidated 2012 Board decisions as guidance as they assess conduct going forward. They might even revisit our "Labor Law 2012: Year in Review".
What others are saying about today’s developments:
The Hill’s Floor Action blog:
The framework of the agreement calls for Obama to pick two new nominees to the National Labor Relations Board to replace pending nominees Sharon Block and Richard Griffin, Jr., according to Senate aide.
Roll Call’s #WGDB blog:
The end result could be a big win for Democrats: a NLRB at least as liberal as it would have been had the two contested recess appointees been confirmed, since President Barack Obama can nominate essentially anyone he wants to replace them.
It’s up to the White House to get nominees vetted and sent to the Senate before the current terms expire, though as Sen. Lamar Alexander, R-Tenn., told reporters Monday night, he couldn’t “imagine that the White House doesn’t know a couple of very good labor leaders who’d like to serve on the NLRB.”
Having the president submit two new names was a way around the impasse. The Senate must confirm the new NLRB nominees by Aug. 27 or the body would be made effectively inoperable, as it would lack a quorum to conduct business. Since the Senate is due to recess at the start of next month, the deadline is even tighter.
And what do Republicans get? They two new NLRB nominees — which isn’t much of a deal, since the new choices will be just as progressive as the current nominees — and the comfort of knowing the rules of the Senate have not been formally changed.