Developments in four different areas last week deserve some attention.  All of them touch on issues that this blog has tracked in the past, and all of them will be of interest to the labor professional.

NLRB Nominations. The President's nominations to the NLRB continue to move through the Senate confirmation process. The Senate's Health, Education, Labor and Pension ("HELP") Committee approved the nominations, although certainly not unanimously, and sent them to the full Senate.  Most of the dispute grew out of the nominations of Members Griffin and Block, who were recess appointed by the President last year.  Many of the Republican Senators on the HELP committee believe Members Griffin and Block should have stepped down after a federal court of appeals held that their appointments were unconstitutional.  Two things to watch as the nominations move to the full Senate:

  • Will the Senate eliminate the filibuster so that the NLRB nominees (among others) can be confirmed?
  • Will the Senate be able to act before Chairman Pearce's term expires in August, leaving the NLRB without the quorum necessary to act?

Persuader Rulemaking. The Chairman of the House Education and the Workforce Committee sent a letter to the DOL requesting that the agency withdraw its proposed regulation that would alter the interpretation of the LMRDA's "advice" exemption.  Perhaps the more significant development in this rulemaking activity, however, is the absence of the final rule. While appearing on the rulemaking agenda with an intended April 2013 publication date, the DOL has still not released a final rule. For labor professionals working for or representing management, no news is good news on this rule.

Recess Appointments.  Two significant briefs were filed with the Supreme Court this past week in the Noel Canning case, which held that the President's appointments of Members Griffin and Block were unconstitutional.  First, the employer filed its brief.  It didn't oppose review by the Court, but did argue that the D.C. Circuit correctly decided the case.  Second, all 45 Senate Republicans filed a brief, urging the Court to take the case, and criticizing the NLRB's presentation of the issue for decision as to narrow.

NLRB's General Counsel Nomination.  President Obama has again nominated Lafe Solomon to serve as the NLRB's General Counsel ("GC").  The GC is the "prosecutor" of alleged violations of the NLRA.  Mr. Solomon is currently serving as the Acting GC, and has been since 2010 given the Senate's refusal to confirm him the last time the President nominated him.