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Capitol Hill Update

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This week, Senate leaders agreed to a deal to hold a simple majority vote on the long-stalled nominations of Thomas E. Perez of Maryland (pictured) for Secretary of Labor and a full, five-member slate of National Labor Relations Board (NLRB) members. In doing so, the Senate avoided launching the controversial “nuclear option” that would have eliminated the use of the filibuster for executive branch nominations.

Facing Republican opposition in the Senate to a host of President Obama’s executive and judicial branch nominees, Senate Majority Leader Harry Reid (D-NV) had publicly weighed changing Senate rules to reduce from 60 to 51 the votes necessary to end filibusters on presidential nominations for executive branch positions. But the deal reached between Senate leaders ensures that Democrats will leave the Senate rules intact and Republicans will not filibuster the pending nominations of Perez or the NLRB nominees.

On July 18, the Senate narrowly approved Perez’s nomination by a vote of 54 to 46.  Prior to the vote, Perez served as head of the Civil Rights Division within the U.S. Justice Department and was a former Maryland Labor Secretary.

Turning to the NLRB, the Obama administration has nominated current NLRB chairman Mark Pearce (D) and management attorneys Philip Miscimarra (R) and Harry I. Johnson III (R) to the NLRB. The other two pending NLRB nominees, labor union attorneys Kent Hirozawa (D) and Nancy Schiffer (D), will be considered at a U.S. Senate Committee on Health, Education, Labor & Pensions hearing on July 23. The committee will then vote on their nominations on July 24, and the full Senate may vote to approve their nominations before the August congressional recess.  Hirozawa is a top counsel to NLRB Chairman Mark Gaston Pearce, and Schiffer is the associate general counsel at the AFL-CIO.

As part of the Senate agreement, the Obama administration nominated Hirozawa and Schiffer to replace current recess appointees Richard Griffin and Sharon Block, whose appointments have been ruled unconstitutional by a series of federal courts considering the case NLRB v. Noel Canning. The U.S. Supreme Court has already agreed to hear the Noel Canning case next year, which would likely impact all of the NLRB’s actions taken from January 2012 to the ultimate Senate confirmation of this full slate of NLRB members.

For HR professionals, the Senate deal means that the Department of Labor’s proposed rule on "persuader activity" and a new version of the NLRB’s “quick election” rule to artificially speed up representation elections may be forthcoming soon.

Both parties claimed victory in the nomination deal. Democrats are pleased to be nearing approval of all of President Obama’s delayed nominees, including nominees to the Consumer Financial Protection Bureau, Export-Import Bank and Environmental Protection Agency. Republicans, conversely, boasted about averting the nuclear option and defeating Griffin and Block as unlawful NLRB nominations.

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