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Senate Expected to Approve Block’s Nomination to NLRB

By Allen Smith  7/21/2014
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[Editor's note: Sharon Block's nomination to serve on the board was withdrawn on Nov. 12,  2014.]

“The White House is taking no chances” of leaving the National Labor Relations Board (NLRB) deadlocked with two Republicans and two Democrats, nominating Democrat Sharon Block to serve on it, according to Michael Lotito, an attorney with Littler in San Francisco.


Democrats currently have a 3-2 edge on the board, which traditionally has a majority from the president’s party. Block would replace board member Nancy Schiffer, whose term expires Dec. 16, 2014.

Block already served as a member of the NLRB from 2012 to 2013, a recess appointment that the Supreme Court ruled on June 26, 2014, was unconstitutional.

This time, President Barack Obama is seeking the Senate’s approval. Lotito expects her nomination to sail through the Senate, “so the pro-union NLRB agenda will continue without a hiccup,” he remarked. The president’s intent to nominate her was announced July 10, 2014.

“Block is highly regarded by many. The White House to me is saying even if the Senate flips” to Republican control in the November election, during the lame-duck Congress, Sen. Majority Leader Harry Reid, D-Nev., “will use the nuclear option approach and get Block on the board,” said Lotito.

The nuclear option refers to Senate Democrats’ elimination of the procedural use of a filibuster (requiring 60 votes to bring to a close) against bringing a presidential nominee to a full Senate vote, which requires only a simple majority to confirm.

Block is more middle-of-the-road than Schiffer, says Steven Bernstein, an attorney with Fisher & Phillips in Tampa. “That’s why you’ve not seen the level of opposition you might expect.”

“The president learned his lesson and put her nomination well in advance of the end of the term,” Bernstein added. Obama put the nomination out there in the summer, so “it may fly under the radar.”

Going Back on Deal?
Yet one reason Block’s nomination might have been expected to be controversial, aside from her serving already as an invalid recess appointment, is that Senate Democrats and Republicans reached a deal in July 2013 on five board nominees that was conditioned on the president’s agreement that Block would not be a part of that package deal.

“The president’s decision to nominate Block now, if it does not violate an express term of that agreement, certainly violates the spirit of the compromise,” said Tom Davis, an attorney with Ogletree Deakins in Nashville, Tenn.

“Block was unacceptable to Senate Republicans in part because she served nearly 19 months on the NLRB as a recess appointee in violation of the Constitution,” Davis added. “Nothing about that objection has changed, and we now have confirmation from the Supreme Court of the United States that her service on the NLRB was improper.”

Sen. Tom Harkin, D-Iowa, has said Block will receive “prompt consideration” and that the current Democratic majority in the Senate will likely result in her confirmation.

“That also means any change in the Senate’s make-up occurring as a result of the midterm elections will not impact this issue,” Davis added. “Likewise, since the House is not involved in providing ‘advice and consent’ on presidential nominees, Republican control of that body also cannot stop Block’s confirmation.”

Reading the Tea Leaves

Davis described Block’s nomination as “political payback” to labor leaders who opposed the withdrawal of her nomination in 2013. And Davis said “this move also signals the president’s hope that the decisions voided by Noel Canning will be decided by the current NLRB in the same way.”

Although her nomination “will be controversial for Senate Republicans since it is such an affront to the compromise,” Davis said that “ultimately, however, those Senate Republicans know they cannot win this vote in the current Senate under the current Senate rules. As a result, the Republican opposition will be measured, but will not derail Block’s nomination.”

Fierce Opposition

Still, some fierce opposition is brewing in some quarters.

Patrick Semmens, vice president of the National Right to Work Foundation, issued the following remarks in response to her nomination: “President Obama’s decision to nominate Sharon Block to sit on the NLRB is an insult to our constitutional form of government. In 2012, President Obama, determined to do Big Labor’s bidding at every turn, illegally installed pro-forced unionism radical Sharon Block to the NLRB. Last month, the U.S. Supreme Court ruled 9-0 that Block and her fellow purported ‘recess’ appointees were illegal under the U.S. Constitution.

“Despite illegally serving on the board, Block received a salary of $155,500 in 2012. Instead of being considered to serve on the NLRB, Block should be made to pay back the money she collected at taxpayer expense while illegally serving in violation of the Constitution.”

Block currently is senior counselor in the Office of the Secretary at the Department of Labor, a position she has held since August 2013.

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


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