On July 30, 2013, the U.S. Senate confirmed five nominees to the
National Labor Relations Board, including Chairman Mark Gaston
Pearce, who was re-nominated for a second term. In addition to
Chairman Pearce, the Senate confirmed as new members two Democrats
– Nancy Schiffer and Kent Hirozawa – and two
Republicans – Philip Miscimarra and Harry Johnson. Both Ms.
Schiffer and Mr. Hirozawa served as counsel to the AFL-CIO in the
past, and Mr. Hirozawa more recently served as Chairman
Pearce's Chief Counsel. Mr. Miscimarra and Mr. Johnson are both
management-side lawyers in private practice. The Senate's
action returns the Board to full strength for the first time in
over a year and establishes a full panel of Senate-confirmed
members for the first time in over 10 years.
For over a year the Board has been in a membership crisis as the
D.C. Circuit Court of Appeals ruled that two of its members, Sharon
Block and Richard Griffin, had received improper recess
appointments by President Obama and were thus not authorized to
serve. That case, which is now before the U.S. Supreme Court on
review (Noel Canning v. NLRB), would have reduced the
Board to only one member – Chairman Pearce, whose term was
set to expire in August.
The confirmations were part of a package deal between Senate
Democrats and Republicans. As part of the deal, Republicans agreed
not to filibuster against Democratic nominees if the Democrats
agreed to abandon attempts to confirm Members Block and Griffin and
substitute two new Democratic nominees. While this action returns
the Board to full strength, it does not settle the issue in the
Noel Canning case concerning the validity of the recess
appointments of Members Block and Griffin. The outcome of that case
could impact the validity of hundreds of NLRB decisions in which
either Member Block or Member Griffin took part.
The deal gives pro-labor Democrats a 3-2 majority on the Board,
and most observers believe the new panel will continue the
aggressive pro-labor agenda followed by the Board under President
Obama. Among the more controversial issues expected to be dealt
with by the Board in the near future is the status of NLRB
rulemaking concerning a workplace poster on employee rights and
expedited union election procedures. Employers are cautioned to pay
close attention to these and other developments at the Board now
that the agency is fully back in business.
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