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Tuesday, July 23, 2019

NLRB consolidates in-house legal services at D.C. headquarters

By Jessica M. Karmasek | Aug 26, 2013

WASHINGTON (Legal Newsline) -- The National Labor Relations Board has created a new Division of Legal Counsel at its Washington D.C. headquarters.

The board said Thursday the new division consists of three branches created by the consolidation of several of the headquarters' offices.

The agency, charged with investigating and remedying unfair labor practices, said the consolidation will "eliminate duplication of functions, improve delivery of services, streamline operations and integrate services."

The new division is headed by Associate General Counsel Margery Lieber.

Specifically, the three branches of the Division of Legal Counsel are:

- The Ethics, Employment and Administrative Law Branch, which provides the NLRB with legal counsel and advice in the areas of ethics, labor relations, employment and personnel law, government contracting and Federal Tort Claims Act matters;

- The Contempt, Compliance and Special Litigation Branch, which provides compliance and contempt advice and conducts litigation when external statutes, programs or outside proceedings threaten the board's ability to carry out its mission; and

- The Freedom of Information Act, or FOIA, Branch, which coordinates the processing of all FOIA requests in the regional offices and directly handles all FOIA requests at its headquarters, as well as all FOIA appeals.

The new division's Lead Technology Counsel also renders advice and assistance regarding e-litigation and e-discovery matters.

The move comes nearly a month after President Barack Obama's nominees to the board were confirmed.

After months-long fighting, Philip Miscimarra and Harry Johnson III, who Obama nominated in April, were confirmed on voice vote in July. Miscimarra is a partner in the labor and employment group of Morgan Lewis & Bockius LLP. Johnson is a partner with Arent Fox LLP.

In a roll call vote last month, Mark Pearce was confirmed for a second term on the board, 59-38. Pearce currently serves as chairman of the board, a position he has held since 2011. He has served as a member since March 2010.

Also confirmed in a roll call vote last month were Kent Hirozawa and Nancy Schiffer, in place of previous nominees Sharon Block and Richard Griffin.

Hirozawa, chief counsel to Pearce, was confirmed 54-44. Schiffer, who has worked for the AFL-CIO and the United Auto Workers, also was confirmed 54-44.

Obama withdrew Block and Griffin's nominations as part of a deal to avoid the so-called "nuclear option" in the Senate and preserve the use of the filibuster in the chamber.

Democrats threatened to change the Senate rules so that it would only take 51 votes to confirm executive branch nominees, including the NLRB nominees.

Without confirmation of at least one of the nominees, the board would have ceased to function this month. Pearce's five-year term expires at the end of the month, which would have left the board with just two members -- short of the legally-required three.

Still, some questions about the board's legitimacy remain.

Obama's recess appointments to the board last year are now under U.S. Supreme Court review, prompting questions about the board's decisions made since the appointments.

In January, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the President's "intrasession appointment" of three new members to the board was an unconstitutional abuse of power because he could not make those appointments without U.S. Senate confirmation because the Senate was not in recess.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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