After months of partisan political jujitsu, the U.S. Senate last week confirmed all five of President Obama’s nominations to the National Labor Relations Board. The three Democratic and two Republican members include Chairman Mark Gaston Pearce (D), Kent Hirozawa (D), Nancy Schiffer (D), Harry I. Johnson, III (R), and Philip A. Miscimarra (R). This marks the first in over a decade that there will be a fully confirmed five-member panel.
The confirmations came just in time to avoid administrative paralysis, as Chairman Pearce’s term was set to end on August 27th, leaving the remaining two-member Board without a valid quorum and unable to act.
Now with a full complement, the Board can continue conducting business without the nagging legitimacy issues which have plagued the agency since the D.C. Circuit dropped its bombshell in the Noel Canning decision earlier this year (discussed here).
So, change is afoot? Maybe. With three Democratic Board members, employers should expect more “labor-friendly” decisions to come. However, the presence of two new Republican voices may help temper what has been viewed as an activist Board. Time will tell.
On a related note, the political dust had barely settled on the Board confirmations when President Obama last Thursday nominated Richard Griffin (the controversial recess appointee to the Board) to serve as the Board’s General Counsel. Obama’s withdrawal of Griffin’s nomination to the Board (as well as that of Sharon Block) was an essential component of the political deal that allowed the confirmations to proceed in the first place.
As the Board’s top lawyer, Griffin will decide which labor cases to prosecute and help guide the agency’s interpretation of labor law.
That’s if the Senate confirms Griffin, right? Not necessarily. If the Senate were to deadlock on Griffin’s nomination as General Counsel, the President arguably could appoint Griffin to fill the temporary GC vacancy. If that were to happen, Griffin, like Lafe Solomon before him, would be the Acting General Counsel.
So, expect the Board’s Regional Field Offices under Griffin’s direction to continue pursuing many of the controversial positions the Board has staked out in recent years. In the meantime, employers are advised to brace themselves and prepare for more of the, well, very similar.