On July 30, 2013, the U.S. Senate confirmed five nominees to the National Labor Relations Board (NLRB), marking the first time since 2003 that the NLRB will be functioning at full strength. The NLRB will be composed of three Democrats and two Republicans.
The Senate voted to confirm Democrat Kent Hirozawa by a 54-44 vote. Hirozawa is currently the Chief Counsel to NLRB Chairman Mark Pearce. The Senate then voted to confirm Democrat Nancy Schiffer, the former AFL-CIO associate general counsel, also by a 54-44 vote. The Senate voted to confirm Democrat, and current NLRB Chairman, Mark Pearce by a 59-38 vote. The Senate confirmed two Republicans, Phil Miscimarra and Harry Johnson III, by voice vote. Miscimarra is a partner with Morgan Lewis & Bockius LLP and Johnson is a partner with Arent Fox LLP.
Had the Senate not acted this week, the NLRB would have been left without a quorum and functionless after August 27, when Chairman Pearce’s term was set to expire. Prior to yesterday’s vote the NLRB had only three members: Chairman Pearce and 2012 recess appointees Richard Griffin and Sharon Block, both Democrats. Earlier this year, however, the D.C. Circuit Court of Appeals invalidated the recess appointments in Noel Canning v. NLRB. See our General Memorandum 13-016 (February 15, 2013). That case will be heard by the U.S. Supreme Court in the upcoming term.
President Obama re-nominated Griffin and Block shortly after the Noel Canning ruling. President Obama nominated Miscimarra, Johnson, and Pearce in April. After the Senate Republicans refused to advance the NLRB nominations, as well as several other Cabinet nominations, Senate Majority Leader Harry Reid threatened to exercise the so-called “nuclear option” which would change the Senate rules so that it would only take 51 votes to confirm executive branch nominees. Senate Republicans agreed to drop their opposition to the nominees but insisted that they would not agree to reappoint Griffin and Block. President Obama agreed to withdraw their nominations and substitute Hirozawa and Schiffer instead.
The NLRB issued approximately 900 rulings since President Obama’s 2012 recess-appointments that were invalidated in the Noel Canning case. Of those rulings, employers have challenged over 100 in court. It is unlikely, but possible, that the new NLRB may decide to revisit the unchallenged cases and vote to “ratify” those decisions. The NLRB recently decided three cases against tribal interests in Little River Band of Ottawa Indians, 359 NLRB 84 (2013), Soaring Eagle Casino and Resort, 359 NLRB 92 (2013), and Chickasaw Nation, 359 NLRB 163 (2013). The Tribes are appealing those decisions in federal appellate courts.
The new NLRB is likely to move forward on new rules that would shorten the time between the filing of a petition and the conduct of an election (“quickie elections”) and micro-unit organizing which breaks away from the traditional rule that where employees share a “community of interest” then the appropriate bargaining unit in a union election should include all employees similarly situated (the so-called “wall to wall” bargaining unit). The Board will most likely not move forward with the poster rule. See our General Memorandum 11-129 (November 4, 2011). There is also a possibility that President Obama may name blocked nominee Richard Griffin as the NLRB General Counsel.
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