On July 30, 2013, the U.S. Senate confirmed all five members of the National Labor Relations Board (Board). The nominees, Harry Johnson III, Philip Miscimarra, Nancy Schiffer, Kent Hirozawa and Mark Pearce, were approved as part of a brokered deal with Republican Senators and President Obama. The deal allowed the U.S Senate to avoid Senate rule changes which would virtually eliminate filibusters on executive branch nominates. Two of the members – Johnson and Miscimarra – were Republican selections, while the other three were Democratic nominees.
The last time that the National Labor Relations Board had all five full-term members was in 2003. Since that time, the Board has frequently operated with a less than full complement of five members, including a period when it had less than a quorum. It is unlikely that the confirmation of these members will impact the appeal of Noel Canning v. National Labor Relations Board, the District of Columbia Court of Appeals case which held that President Obama’s recess appointments to the Board were unconstitutional. All decisions by the Board following those recess appointments remain in doubt as the U.S. Supreme Court plans to take up Noel Canning during its upcoming term.
We predict that the Board will take up the issue of quickie elections, required posters in the workplace and other controversial decisions made in the last two years. We’ll be watching.
Feel free to contact any member of Spencer Fane’s Labor and Employment Group for assistance with your traditional labor needs.