For the past several years, the political stalemate in Washington, D.C. has resulted in the National Labor Relations Board operating with fewer than its standard complement of five members. Earlier this month, an agreement between Senate Republicans and the Obama administration resulted in the confirmation of new NLRB members, breaking an impasse that has resulted in numerous legal challenges to decisions made while the NLRB was operating with members who had not been confirmed by the Senate. This article examines the backgrounds of the new Board members, and offers insights as to what the new membership composition will mean for employers in the coming years.
As part of a political compromise to maintain the current filibuster rules, senators from both parties agreed to proceed with votes on President Obama’s NLRB nominees. The Senate confirmed four new NLRB members, who were sworn in on August 12, 2013. NLRB Chairman Mark Gaston Pearce was also confirmed for an additional five-year term on the Board. Here are the current Board members:
- Mark Gaston Pearce is currently Chairman of the National Labor Relations Board, a position he has held since August 2011. He served as a member of the NLRB since March 2010. Mr. Pearce was the founding partner at Creighton, Pearce & Johnsen & Jiroux, a highly regarded union-side law firm. His term expires August 27, 2018.
- Nancy Schiffer was Associate General Counsel to the American Federation of Labor and Congress of Industrial Organization (AFL-CIO) from 2000 to 2012. Previously, she was Deputy Counsel to the United Auto Workers (UAW) from 1998 to 2000. She also worked as Associate General Counsel for the UAW from 1982 to 1998. Schiffer’s term expires December 16, 2014.
- Harry I. Johnson III is a partner with Arent Fox, LLP, a position he has held since 2010. Previously, Johnson worked at Jones Day as a partner and as an associate. Johnson’s term expires August 27, 2015.
- Kent Hirozawa was Chief Counsel to National Labor Relations Board (NLRB) Chairman Mark Pearce. Before joining the NLRB in 2010, Hirozawa was a partner in Gladstein, Reif & Meginniss, LLP, a well-known union-side law firm. There, he advised clients on a variety of legal and strategic issues concerning federal and state labor and employment law matters. Mr. Hirozawa’s term expires on August 27, 2016.
- Philip Miscimarra was a partner in the labor and employment group at Morgan Lewis & Bockius, LLP, a position he held since 2005. Since 1997, Miscimarra has been a Senior Fellow with the University of Pennsylvania’s Wharton Business School. Miscimarra previously worked at Seyfarth Shaw, LLP, as a partner from 1990 to 2005. Miscimarra’s term expires December 16, 2017.
Takeaway for Employers: Because decisions of the NLRB require the support of only three out of five members, the current Board is certain to continue the recent trend of pro-union and pro-employee decisions on a host of workplace issues. The confirmation of a full set of Board members also signals the end of an extended period of uncertainty relating to the effect of those Board decisions made during the recent period when multiple members were recess appointees. Although those decisions will remain the subject of legal challenges, the presence of a full Board – with all members confirmed by the Senate – will remove that concern as to future cases. While this eliminates a certain amount of uncertainty for employers, it also eliminates an issue that was providing some degree of restraint on the Board’s agenda.