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Two NLRB Nominees Withdrawn, Two New Ones Nominated

By Allen Smith  7/17/2013
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As part of a deal the Senate reached to facilitate approval of presidential agency nominees, President Barack Obama on July 16, 2013, withdrew National Labor Relations Board (NLRB) recess appointees Sharon Block and Richard Griffin Jr. as nominees for the board. He nominated instead Kent Yoshiho Hirozawa from New York and Nancy Jean Schiffer of Maryland. If confirmed by Congress, Hirozawa’s term would end Aug. 27, 2016. Schiffer’s term would end Dec. 16, 2014.

Nominees in the Spotlight

Senate Majority Leader Harry Reid, D-Nev., has been on the warpath to end the stalemate on presidential nominees, threatening to do away with Senate rules that permit filibustering, a proposal some referred to as “the nuclear option.”

On July 11, 2013, Reid expressed his displeasure with Republicans’ opposition to certain presidential nominees, stating, “Not a single cabinet secretary nominee was filibustered in President Carter’s administration. Not a single cabinet secretary nominee was filibustered in President George H.W. Bush’s administration. Only one cabinet secretary was filibustered in President Reagan’s administration. And only one cabinet secretary was filibustered in President George W. Bush’s administration. But already in President Obama’s administration, four cabinet secretaries have been filibustered, and more filibusters are likely. Yet the Republican leader says there is no problem here, the status quo is fine.”

According to Politico, the real battle over presidential nominees was centered on the nomination of NLRB recess appointees Block and Griffin.

In announcing the new NLRB nominees, Obama remarked, “The National Labor Relations Board is responsible for enforcing protections that are fundamental to growing the economy and creating jobs from the middle class. It gives me great confidence that such dedicated and capable individuals have agreed to join the board, and I look forward to the agency continuing its work to promote better wages and conditions for all American workers.”

Reacting to the deal, Obama said, “I’m pleased that the Senate took action today to move forward on the nominees who have waited far too long for a vote. Over the last two years, I’ve nominated leaders to fill important positions required to do the work of the American people, only to have those positions remain unfilled—not because the nominees were somehow unqualified, but for purely political reasons. I want to thank the senators from both parties—including Leader Reid, Leader McConnell and Sen. McCain—who have worked together to find a path forward and give these nominees the votes they deserve.”

Schiffer was associate general counsel to the AFL-CIO from 2000 to 2012, and before that was counsel to the United Auto Workers. Hirozawa is currently chief counsel to board Chairman Mark Pearce.

‘End the Era of Dysfunction’

House Education and the Workforce Committee Chairman John Kline, R-Minn., welcomed the withdrawal of Block and Griffin as nominees. “I welcome the president’s decision to withdraw two board nominees tainted by unconstitutional recess appointments,” he remarked. “For more than a year, the board has operated under a cloud of legal uncertainty”—a veiled reference to the D.C. Circuit’s decision earlier this year in Noel Canning that Obama did not have authority to fill board seats on Jan. 4, 2012, with two recess appointments, Block and Griffin.

“With a full slate of constitutionally confirmed members, we will have an opportunity to restore the credibility of the NLRB and end the era of dysfunction,” Kline said. “To achieve this goal all board members should respect the appropriate role of the NLRB and reject efforts to rewrite the law through bureaucratic fiat. In the midst of a national jobs crisis, America’s workers and job creators cannot afford a board driven by an activist agenda.”

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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