In a series of votes stretching into the early evening, the Senate on Tuesday confirmed all five nominations to the National Labor Relations Board, restoring the agency to full operational capacity. The Board now comprises Chairman Mark Gaston Pearce (D), Kent Hirozawa (D), Nancy Schiffer (D), Harry I. Johnson, III (R), and Philip A. Miscimarra (R).
On July 16, President Obama named Hirozawa and Schiffer as replacements for Sharon Block and Richard Griffin, the two recess appointees, as part of the Senate deal to reinstitute leadership to the Department of Labor, restore power to the NLRB, and avoid filibuster reform. As previously discussed, both candidates have strong pro-labor backgrounds.
Last week the Senate Committee on Health, Education, Labor and Pensions (HELP) considered and voted to advance the nominations of Hirozawa and Schiffer. The HELP Committee approved the nominations of Johnson and Miscimarra in May.
With a full slate of members, the Board is now free to issue decisions and rules without fear that such actions will be challenged on lack of quorum or legitimacy grounds. The U.S. Supreme Court in Noel Canning will ultimately decide whether the recess appointments of Block and Griffin were constitutional. If the Court upholds Noel Canning, in which the U.S. Court of Appeals for the D.C. Circuit found the appointments invalid, it is unclear how the newly-constituted Board will handle the more than 1,000 decisions since the January 4, 2012 appointments. What is clear is that employers should anticipate a reinvigorated Board capable of revisiting many of the policies and rulemaking efforts that have languished in the past few months.