Agreement Not to Filibuster Nominations for Secretary of Labor and NLRB Avoids “Nuclear Option” in the Senate, But Poses “Time Bomb” for Employers

Yesterday, the U.S. Senate avoided the “nuclear option” on pending nominations for Secretary of Labor-Designate Thomas Perez and for a package of nominees to the National Labor Relations Board (NLRB). The nuclear option would have changed Senate rules by a simple majority vote (rather than the required 67 votes) to end filibusters on presidential executive branch nominations rather than the required 60 votes for “cloture” to cut off debate.

As a result, Senate Republicans agreed not to filibuster the Perez nomination, which is expected to be approved shortly on a simple majority vote, and not to filibuster the pending NLRB nominations, which now include AFL-CIO General Counsel Nancy Schiffer and union lawyer Kent Hirozawa (currently chief counsel to NLRB chairman Mark Gaston Pearce). Schiffer and Hirozawa were nominated to replace the currently invalid recess appointees Richard Griffin and Sharon Block whose nominations were dropped. Schiffer and Hirozawa were selected by the AFL-CIO. The others in the five-member package are former union lawyer and current NLRB chairman Mark Gaston Pearce and management-side labor lawyers Philip Miscimarra and Harry I. Johnson, III. If confirmed, this will result in a 3-to-2 pro-union majority with terms lasting well into 2016 beyond President Obama’s tenure in office.

U.S. Senate Committee on Health, Education, Labor, & Pensions (HELP) hearings on the Schiffer and Hirozawa nominations have been set for July 23, followed by committee mark-up the following day, after which the nominations will be voted out of committee and sent to the Senate floor for a simple majority vote.

The agreement to avoid the “nuclear option” was hammered out between Senate Majority Leader Harry Reid (D-Nev.) and Senate Republicans after an unusual closed-door meeting that lasted more than three hours. Nearly all 100 senators attended the meeting, which was held in the rarely-used Old Senate Chambers on the evening of July 15. In exchange for the Democrats’ agreement to drop the pending threat of the rules change, Republicans agreed to allow votes on various executive branch nominees, including those pending for the U.S. Department of Labor and the NLRB. They did not agree to eliminate future threats of the nuclear option.

As for several other nominations covered by the agreement yesterday, the long-blocked nomination of Richard Cordray to be the head of the Consumer Financial Protection Bureau was approved on a simple majority vote of 66-to-34. A vote on the nomination of Gina McCarthy to be Administrator of the U.S. Environmental Protection Agency will follow shortly.

The immediate effects of the confirmation of the labor agency nominations are to accelerate action on the proposed revisions to “persuader activity” regulations pending at the Department of Labor and restoration of the original representation election (“ambush election”) rules at the NLRB.