Washington Retail Insight

House to Vote on NLRB Bill as Obama Submits Nominations to Senate

By J. Craig Shearman
Washington Retail Insight
April 10, 2013

The battle over National Labor Relations Board efforts to make it easier to unionize retail stores and other businesses is continuing this week as the House prepares to vote on legislation barring enforcement of recent actions and the Senate considers three nominations for NLRB seats submitted by President Obama.

The House is tentatively expected to vote Friday on the Preventing Greater Uncertainty in Labor Management Relations Act, which would block the NLRB from enforcing any action taken since January 2012. That was when Obama made three appointments to the panel during a Senate recess to avoid the usual requirement for Senate confirmation. A federal appeals court ruled this year that Obama violated the Constitution, leaving all decisions made by the board since then in question.

The legislation would also bar new votes that require a quorum, and the prohibitions would last until the U.S. Supreme Court rules on the constitutionality of the appointments, new board members are confirmed by the Senate or the terms of the recess appointees expire next year.

Obama moved on Tuesday to make the bill moot by submitting three nominations to the Senate. The President re-nominated Chairman Mark Pearce, a Democrat, and asked the Senate to approve labor-law attorneys Harry Johnson III and Philip Miscimarra, both Republicans. Obama already asked the Senate in February to approve Democrats Sharon Block and Richard Griffin, two of the 2012 appointees who were challenged in the court case. Confirmation of the five nominees would give the NLRB a full slate of Senate-approved members with a 3-2 Democratic majority.

NRF Senior Vice President for Government Relations David French said he looked forward to confirmation hearings on the nominees “so we can learn more about them.”

“NRF supports a lawful, balanced and functional NLRB that upholds its responsibility for fairness and impartiality when it comes to union organizing and elections,” French said. “We truly hope that the president’s nominees are not just rubber stamps for one point of view.”

Enactment of the legislation could block NLRB plans to re-pass “ambush” election rules opposed by NRF while confirmation of the nominees could allow the vote to go forward.

The ambush rules, which would allow a union organizing election to be held in as little as two weeks rather than the current median of five weeks for most elections and 100 days for those involving legal challenges by employers, were passed before the recess appointments took place. But they were struck down last year in a separate court case backed by NRF and need to be passed again before they can be enforced.

A ruling allowing micro unions within a company – such as a single retail store within a chain or even a single department within a store – came before the recess appointments and will not be affected.

© 2013 National Retail Federation