Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Two weeks after the U.S. Supreme Court held in Noel Canning that the three January 4, 2012 recess appointments to the National Labor Relations Board were invalid, the President has re-nominated one of these recess appointees to the Board. On July 10, President Obama announced his intent to nominate Sharon Block to once again be a member of the Board. Block, along with Richard Griffin and Terence Flynn, was seated on the Board while the Senate was still holding brief pro forma sessions every three days. The Court in Noel Canning determined that these sessions did not constitute a recess for appointment purposes.
While Terrence Flynn resigned from the Board in 2012, former members Block and Griffin continued to serve until August 2013, when a deal was struck by Senate leaders permitting a floor vote on pending Board nominees Chairman Mark Gaston Pearce, Kent Hirozawa, Nancy Schiffer, Harry I. Johnson, III and Philip A. Miscimarra, and requiring the withdrawal of Block and Griffin's nominations. Griffin was later nominated and confirmed to serve as the Board's General Counsel, a position he holds today.
Block has worked as an attorney in both the private and public sectors. She currently serves in the Office of the Secretary at the Department of Labor (DOL), a position she has held since August 2013. Her other positions have included Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor, and Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy, and senior attorney to former NLRB Chairman Robert Battista.
The Board is operating at full five-member capacity. The next vacancy will occur on December 16, 2014, when member Nancy Schiffer's term ends. Part of the initial Senate deal to confirm the additional NLRB members was predicated on Sen. Majority Leader Harry Reid's agreement not to invoke the so-called "nuclear option" and change Senate rules to permit certain presidential nominations to be confirmed with a simple majority vote. The Senate has since enacted such a rule change, which could facilitate Block's confirmation. Stay tuned.