The three National Labor Relations Board members up for reconsideration and two new Board nominees faced pointed questions from the Senate Committee on Health, Education, Labor and Pensions (HELP) on Thursday. Last month, President Obama announced his intent to re-name Mark Gaston Pearce (D) as Chairman of the National Labor Relations Board (NLRB), as well as seat the two Republican nominees, Harry I. Johnson, III and Philip A. Miscimarra, to the agency. In February, the President re-nominated Democrats Sharon Block and Richard Griffin to the Board after the U.S. Court of Appeals for the D.C. Circuit ruled that their January 4, 2012 recess appointments were unconstitutional. The hearing was held the same day the Third Circuit released its decision in NLRB v. New Vista Nursing & Rehabilitation, which reached a similar conclusion. Specifically, the Third Circuit held that the recess appointment of former Board member Craig Becker was invalid because it was not made during an intersession recess, which would invalidate the Block and Griffin appointments as well.

Committee Chairman Tom Harkin (D-IA) claimed that it was “deeply disappointing” to see what is happening to the Board in recent years, and placed the blame on “political squabbling.” According to Harkin, the Board has not had five confirmed members in a decade.

Ranking member Lamar Alexander (R-TN) agreed that it is important to have five confirmed members, but emphasized that there exists “a troubling lack of respect” for the constitutional mandate that there be a separation of powers in our government, namely the Senate’s responsibility to provide advice and consent over executive nominees. He claimed that President Obama “made recess appointments while the Senate was not in recess. This was unprecedented.” Said Alexander, “the Senate must decide when we’re in session. Not the President.”

Alexander explained that since the January 4, 2012 recess appointments, the Board has issued 910 published and unpublished decisions; 206 of which were issued after Noel Canning, the case in which the U.S. Court of Appeals for the D.C. Circuit ruled that the recess appointments were unconstitutional. All of these decisions, Alexander noted, can be appealed and vacated.

Alexander supported the nominations of Pearce, Johnson and Miscimarra, but said he would not approve the nominations of Griffin and Block, the two recess nominees.

Sen. Patty Murray (D-WA), on the other hand, urged the Senate to consider all five nominees as a package. Sen. Elizabeth Warren (D-MA) agreed, even though she expressed concern that one of the nominees was specifically hired by the Chamber of Commerce to curb NLRB’s regulatory authority. She believed that the need to have a fully functioning Board overrode any concerns she had about individual members.

During the hearing, each member was asked specific questions about their philosophies about labor law in general, and how the Board has acted in certain situations in particular.

Chairman Pearce was grilled the most given his leadership role. Sen. Harkin asked him why he feels the Board should continue to operate given the Noel Canning decision. Pearce responded that the decision conflicts with the conclusions of three other courts of appeals, and that “historically, the NLRB has functioned in the wake of constitutional challenges. We owe it to the public to continue to work.” He pointed out that the National Labor Relations Act affords no private right of action. Therefore, “the Board is the only forum. . . .the statute of limitations on unfair labor practices continues to run,” and that the Board’s obligations are not suspended while litigation over the legitimacy of the Board is pending.

Sen. Alexander asked Pearce about the Board’s efforts to expand the information that must be provided on the Excelsior list. He said that under Pearce’s direction, the Board has led a regulatory effort to include other information such as email addresses and telephone numbers. Alexander asked whether, if re-confirmed, would Pearce continue to pursue these efforts, and if so, why would he not allow employees to opt out of this requirement? Pearce answered that “Excelsior is decades old. . . . We are creatures or victims of technology,” and that it is “appropriate and responsible” for the Board to “look at technological advances that are typical in communications between employees and employers.” He said that all manners of communication would be evaluated and taken into consideration. Alexander urged Pearce to consider privacy considerations as well as technological ones.

Sen. Johnny Isakson (R-GA) asked Pearce why the NLRB has undone decades of precedent in its Specialty Healthcare decision. In this case, the Board changed the criteria for assessing appropriate bargaining units. Under the new standard, employers have the burden of proving excluded employees share an “overwhelming community of interest” with the proposed unit – a new and uncertain standard. The decision essentially makes it easier for unions to create smaller “micro” units within a workplace. Pearce responded that “it has been a tenet of the law to determine an appropriate – not the most appropriate – unit,” and that the decision in Specialty Healthcare is “consistent with assessments of what would be an appropriate bargaining unit.”

Recess nominees Richard Griffin and Sharon Block were asked why they have not resigned in the wake of Noel Canning. Richard Griffin claimed that since the Supreme Court has not rendered a final judgment on the matter, “I felt it was important to conduct the work I took an oath to continue to do.” Nominee Sharon Block agreed, saying that the “public we serve relies on us. It is incumbent upon me to continue to provide this service while the issue is being resolved.”

When asked what his concerns would be if confirmed, nominee Harry Johnson stated that “if good faith employers cannot operate” due to regulatory impediments, “there will not be jobs, not be employees, and there would not be viable labor unions.” Nominee Philip Miscimarra said that one factor every labor law case has in common is that “at least two people see something different. If confirmed, I will approach every decision with an open mind . . . and be open to differing views.” In addition, he stated that it is important to “apply the law as written in keeping with what Congress intended.”

Sen. Robert Casey, Jr. (D-PA) asked whether he supports the Board’s rulemaking authority. Miscimarra answered that he does, but that any consideration would depend on careful consideration of the need for the rule, any authorization in the NLRA for the rulemaking, the content of the rule, and the process for receiving public input.

Sen. Bernard Sanders (I-VT) predicted that the Committee would approve the five nominees along party lines, and that once the nominations are put before the full Senate, Republicans would threaten to filibuster the nominations, and that the Democrats would not be able to garner the 60 votes needed to overcome a filibuster. Thus, come the end of August when Chairman Pearce’s term ends, the Board would be left without a quorum and thus be rendered dysfunctional.

Sen. Harkin concluded the hearing by noting that the Committee will meet to vote on advancing the nominations next Wednesday, May 22, 2013.

A webcast of the hearing can be found here.

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