The Beltway Blues: A Lingering NLRB Vacancy And A Perpetual Nominee

by | Sep 14, 2023 | DOL, Labor Relations Ink, Legal, News, NLRB, Politics

The National Labor Relations Board’s recent decisions, including Cemex, have been delivered by a Democrat majority intent upon carving out Biden’s goal of broadening paths for union organizing. The resulting effects now leave employers to navigate sweeping changes in a procedural maze, which has been woven by a quasi-judicial body of five members nominated by the president and approved by the Senate. 

Any shuffle in NLRB members can present a great impact, but it sounds like the board’s new normal will remain, at least for now. 

The current board’s makeup only includes four members after the departure of Republican John Ring last December. That leaves one Republican (Marvin E. Kaplan) and three Democrats (Lauren McFerran, David M. Prouty, and Gwynne A. Wilcox) to issue far-reaching decisions for the workplace. Wilcox was recently re-upped to a second five-year term after a short absence, yet the vacant seat remains.

The process of naming and approving Ring’s replacement was not expected to be speedy, yet the 3-1 edge is a glaring one. A mystery candidate was recently offered to the White House, according to Sen. Lisa Murkowski, who says that Senate Majority Leader Chuck Schumer assured her that there would be no problem with confirmation after Biden gave the all-clear on vetting. That promise is one reason why Murkowski crossed party lines and voted for Wilcox to receive a second term.

Two veteran management-side labor lawyers—Terrence Kilroy of Polsinelli PC and Mark Carter of Dinsmore & Shohl LLP—are rumored to be under consideration for the GOP seat, according to reports from Bloomberg.

How long will that process take? Stay tuned.

In the meantime, Biden’s choice for Secretary of Labor replacement, Deputy Secretary Julie Su, remains no closer to Senate confirmation than she did back in May. Yet Su, pursuant to DOL policy, is permitted to indefinitely serve as acting secretary because she was previously confirmed as deputy.

Accordingly, Su has declared that she has “no intention” to leave her temporary post and is forging ahead with major moves. Those include a notice of proposed rulemaking to “restore and extend overtime protections” for salaried workers who earn $55,000 or less per year. That adds up to around 3.6 million workers, and the proposal will be subject to the customary 60-day public comment period before going into effect. 

Quite possibly, Su will still be unconfirmed throughout those 60 days, and the slim Senate majority currently held by Democrats and opposition from Kyrsten Sinema and Joe Manchin does not bode well for a smooth outcome. However, the U.S. Government Accountability Office is now reviewing how long Su can continue to be acting secretary despite such a divided and stalemated Congress.

The pushback on Su’s nomination has much to do with her history as California Secretary of Labor under Governor Gavin Newsom. She championed a law that came close to eliminating the gig economy, which caused chaos for the trucking industry and gig worker app companies. Su’s dissenters worry that she would spread the law nationally, which could upend the business models of several companies, arguably creating more turmoil in an already fraught economy.


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