• Senate Confirms NLRB Nominees, Returns Board to Full Strength
  • August 1, 2013
  • Law Firm: Kilpatrick Townsend Stockton LLP - Atlanta Office
  • 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.