The Midterm Elections and the NLRB

Board Member Nancy Schiffer’s term will expire on December 16, 2014 during the Senate’s lame-duck session, and President Obama has appointed Sharon Block to replace her

On November 12, the Senate will begin its lame-duck session, which is the last chance for the Democratic majority to act before Republicans take over in January. In addition to a few substantive pieces of legislation, Harry Reid is planning to confirm a large number of President Obama’s judicial and executive appointees. With so much to do in a limited time and Republican obstruction likely, the Democratic leadership must make decisions about its priorities. One pending nomination is that of Sharon Block to the NLRB. The President appointed Block to replace Member Nancy Schiffer when the latter’s term expires on December 16, 2014. The Democrats can and likely will confirm Block during the lame-duck session, but her approval may prove costly in terms of floor time and inter-party goodwill. Block’s appointment is as consequential as any pending before the Senate today.

Sharon Block was one of President Obama’s Supreme Court-invalidated recess appointees, and many Republicans consequently oppose her nomination

President Obama appointed Block to the Board in January 2012 as part of a slate of recess appointments made in response to Republicans’ decision to block all confirmations to the NLRB so as to prevent the Board from having enough members to function. In January 2013, the D.C. Circuit ruled in Noel Canning v. NLRB that the recess appointments, including Block’s, were constitutionally invalid. Block ignored the D.C. Circuit’s opinion and continued to act as a Member while the Board appealed the case to the Supreme Court, a move that incensed Republicans (the Supreme Court affirmed the D.C. Circuit’s decision in June 2014). Block served as a Board Member for 18 months, until July 2013, when Republicans agreed to fill all five Board slots (three selected by Democrats, two by the G.O.P.) on condition that Block and another Member step down.

In November 2013, Senate Democrats enacted filibuster reform so that a simple majority can now confirm executive and non-Supreme Court judicial appointees. Obama appointed Block to return to the Board in July 2014, and then in September the Senate HELP Committee voted to send her confirmation to the full Senate for final approval. Block’s appointment has aroused intense opposition in some quarters of the Republican Party. Some, including soon-to-be HELP Chairman Lamar Alexander, fault her for failing to step down immediately when the D.C. Circuit declared her appointment invalid. Others oppose her because they consider her too supportive of unions.

Block’s confirmation can and likely will take place, but may be costly in terms of time and goodwill

If no one is confirmed to replace Schiffer, the Board will be left with two Democratic members and two Republican members. The Board will thus be deadlocked at least until Republican Member Harry Johnson’s term expires on August 27, 2015. Favoring this deadlocked status, Republicans will almost certainly block any nominee that they can (just as they did in 2011 and early 2012), and they are especially likely to oppose Block given her time as a recess appointee. This is why it is so critical that Democrats move swiftly to confirm Block’s appointment during the lame-duck session, even if doing so comes with some costs—once the Republicans take control of the Senate in January, they will again have the power to stop the Board from functioning and the smart money is that they will use it.

Because of the way Board Members’ terms are laid out, Block’s confirmation will guarantee a functioning Democratic majority on the Board for the remainder of President Obama’s administration. With all of today’s critical labor issues, from the fast food industry upheaval to college athletes’ efforts to organize, the Board needs such a majority to protect NLRA rights.

The only threat to Block’s confirmation is that Reid will decide it is not a priority and so will use the limited time available to him to act on other business. Alternatively, he may decide against confirming Block because he believes doing so will lead to greater acrimony after the Republican takeover.Republicans have numerous delay tactics available to them, which they have used extremely effectively since the Democrats reformed the filibuster, and some Republican senators are sure to vigorously protest Block’s confirmation. But if Reid wants to confirm Block, he can, since she is virtually certain to have the support of more than the simple majority of senators needed to confirm her. Whatever the costs, the benefits of a long-term functioning Democratic Board majority mean that Reid should place confirming Block near the top of his list of priorities.

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