On July 30, 2013, the Senate confirmed all five of President Obama's nominations for the National Labor Relations Board (NLRB). This is the first time in a decade the NLRB has had a full complement of Senate-confirmed board members. The Senate's action replaces the President's controversial January 2012 "recess appointments" of members Sharon Block and Richard Griffin (whom the President re-nominated in February 2013) with Democrats Kent Hirozawa and Nancy Shiffer. The Senate also confirmed the re-nomination for a new term of Board Chairman Mark Gaston Pearce, whose term was set to expire this month. Hirozawa, Shiffer and Pearce will be joined by Republicans Philip Miscimarra and Harry I. Johnson III.
The Senate's actions were part of a bi-partisan deal struck in which Republicans agreed not to filibuster the two new Democrat nominees or Pearce's re-nomination in exchange for Senate Majority Leader Harry Reid's (D-Nev.) promise not to carry out his threat to push through a rule change that would end filibusters of executive branch nominations. Since the NLRB must have three members to issue decisions and Pearce's term was set to expire in August, this move avoids a forced August NLRB shutdown.
These confirmations do not, however, resolve the issue of the propriety of the President's recess appointments, which the D.C. Circuit found in Noel Canning v. NLRB were unconstitutional. That case is now pending consideration by the United States Supreme Court. Thus, while the installation of these new board members clears up any question about the new board's authority, it does not moot the issue of the validity of the decisions the prior board issued. Should the Supreme Court rule that President Obama's recess appointments were unconstitutional, the new board potentially would have to reissue all of the invalid decisions. It is uncertain whether, given that possibility, the new board will start reissuing these decisions immediately or wait for the Supreme Court ruling and then do so if necessary. Either way, given the new board's make-up, most believe that the new board would re-decide those cases using the same approach as that taken by the prior board.
Democrat Nancy Schiffer is a retired associate general counsel for the AFL-CIO, who previously worked as deputy general counsel for the United Auto Workers. Democrat Kent Hirozawa has been serving since 2010 as NLRB Chairman Mark Gaston Pearce's chief counsel and previously worked as a labor-side attorney. Thus, they are expected to continue the pro-union/pro-employee stances Griffin and Block established during their terms. Since, joined with Pearce, there are three Democrat and just two Republican board members, the full board likely will split 3-2 on most issues, continuing to expand upon the National Labor Relations Act's employee and union protections and the prior board's campaign to promote unionization. Unlike the prior board, however, they will act without the uncertainty plaguing the prior board's potentially unconstitutionally rendered decisions.