In an eleventh-hour compromise to prevent the so-called “nuclear option” that would have changed the rules for approving executive branch nominations, Senate leaders have tentatively agreed to a proposal that will potentially reinstate the National Labor Relations Board to full operational capacity, albeit with different members than originally anticipated. According to the purported deal, President Obama would withdraw his nominations of Sharon Block and Richard Griffin, the two controversial recess appointees. In their stead, the President would propose two alternate Democratic nominees, whom the Senate would agree to consider without delay.
As part of this deal, the Senate would take votes on the remaining Board nominees, Chairman Mark Gaston Pearce and Republican nominees Harry I. Johnson, III and Philip A. Miscimarra. The Senate would also agree to vote on Thomas Perez’s nomination for Labor Secretary. The other nomination that will receive an up-or-down vote as part of the deal is Richard Cordray to head the Consumer Financial Protection Bureau. This morning the Senate voted 71-29 to advance his nomination.
While this development is a relief for those who did not want the Senate’s filibuster rules changed, it sets in motion some of the same events that would likely have transpired had the nuclear option been triggered. Namely, the NLRB will become fully operational, with the necessary quorum to pursue an aggressive pro-labor agenda that has already changed the landscape of labor relations law. Employers can expect even more sweeping changes ahead, including further changes to the regulations governing the union election procedures – the so-called “quickie” or “ambush” election rules. Perez as Labor Secretary is expected to proceed with the DOL’s far-reaching regulatory agenda that includes imminent final persuader, affirmative action, and companionship exemption rules, among others. The combination of forthcoming changes to a fully operational NLRB and a DOL with a newly-installed Secretary may be more dramatic than legislative proposals that have remained stalled in Congress.
Details of the deal on the nuclear option are expected later today.