On July 30, the Senate (finally) confirmed five nominees to serve on the National Labor Relations Board. Chairman Mark Gaston Pearce (D) will continue in his position. The other members – Kent Hirozawa (D), Nancy Schiffer (D), Philip Miscimarra (R), and Harry Johnson (R) – are new to the Board. President Obama withdrew the nominations of the two Members who had been serving under the purported recess appointment – Sharon Block and Richard Griffin – as part of a deal with the Senate.
Board Members are appointed by the President to 5-year terms, with the term of one Member expiring each year. It is tradition that three of the members are of the President’s party. The Board typically delegates its authority to decide cases to a three-member panel, representing a quorum of the Board.
The Board has not had a full complement of five members since 2004. From January 1, 2008 until March 27, 2010, the Board had only two members (Wilma Liebman and Peter Schaumber). As we previously reported, in 2010, the U.S. Supreme Court ruled that the Board needed at least three members to decide cases. New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010).
Due to Senate roadblocks, President Obama had been using “recess appointments” to fill Board vacancies, but this approach had been challenged in the courts. At present, three circuit courts have found that the President’s recess appoints were invalid and, without the requisite three members, the Board was without authority to decide cases. Next term, the U.S. Supreme Court will likely decide whether the recess appointments were valid. NLRB v. Noel Canning, No. 12-1281, cert. granted (June 24, 2013).
Bottom Line
Confirmation of the new Board members has eliminated any uncertainty regarding the Board’s authority to issue decisions on a go-forward basis. We anticipate the Board will continue to issue Labor-friendly decisions and rule changes. We will watch any developments closely.