On July 19, the U.S. Senate confirmed Thomas Perez to be the next Secretary of Labor. The confirmation was part of a bi-partisan compromise over a number of stalled presidential nominations. The deal includes an agreement over appointments to the National Labor Relations Board (NLRB or Board) that is expected to soon give the Board a full complement of five confirmed members for the first time in several years.
The deal enables the Senate to avoid the so-called “nuclear option,” a change in Senate rules that would have made it easier to end a filibuster. Senate Majority Leader Harry Reid threatened to invoke the nuclear option after Republicans threatened to filibuster the confirmations of Perez, of nominees to the NLRB, and of several others.
Perez was serving as the assistant attorney general for the Civil Rights Division of the U.S. Department of Justice at the time of his nomination. He previously served as the secretary of Maryland’s Department of Labor, Licensing and Regulation. He will replace Deputy Secretary Seth Harris, who has been serving as acting secretary since Hilda Solis resigned as Secretary of Labor in January.
As part of the compromise, Pres. Obama agreed to withdraw his February nominations of Democrats Sharon Block and Richard Griffin to the NLRB and to replace them with two new nominees. Block and Griffin are currently serving on the Board under unconfirmed and highly controversial “recess” appointments. The two new nominees are Nancy Schiffer, associate general counsel at the AFL-CIO, and Kent Hirowaza, chief counsel to NLRB Chairman Mark Pearce. Republicans agreed not to oppose the confirmation of the new nominees or the confirmation of Pearce for a new term. Also part of the package to restore a five-member Board is the confirmation of management-side labor lawyers Philip Miscimarra and Harry Johnson, III. Sources say that Pres. Obama intends to nominate Griffin to be the next general counsel of the NLRB, but it is unclear whether this was part of the compromise.
With a new secretary in place, the Department of Labor is expected to move forward on various regulatory initiatives that have been on hold. Of the greatest concern to AGC are regulations coming out of the Office of Federal Contract Compliance Programs (OFCCP). These include a late-stage initiative to change regulations concerning the recruitment and employment of veterans and individuals with disabilities and an early-stage initiative to change regulations concerning the recruitment and employment of women and minorities in construction. (For more information about these initiatives and related advocacy efforts by AGC, click here and here.) Among AGC’s other concerns is a regulatory initiative known as the “persuader rule” that would broaden reporting requirements of certain labor relations consultants. (For more information on AGC’s efforts in this area, click here.)
As for the NLRB, the confirmations will provide a new opportunity for the Board to implement its “quickie election rule.” The rule – which would expedite the election process in union representation elections – has been suspended since a court ruled that the Board adopted it without the necessary quorum. With a full complement restored, the Board could re-adopt the rule without the procedural inadequacy. In its adjudicatory role, we expect that the newly constituted Board will continue to act much like the Board has acted throughout the Obama Administration – issuing decisions that tend to favor organized labor and curtail management rights. One silver lining is that, once the Board has two Republicans again, we can expect more dissenting opinions. Such opinions can be very helpful in court challenges to Board decisions.