Senate's Confirmation of NLRB Nominees Overshadowed by Courts' Invalidation of Previous Recess Appointments

Volume 12, Issue 7
July 31, 2013

After a series of votes on July 30, 2013, the United States Senate confirmed all of President Obama's nominees to the National Labor Relations Board (NLRB) rendering the agency fully staffed with five Members for the first time in a decade.  The NLRB Members consist of the current NLRB Chairman Mark Pearce; Nancy Schiffer, a former AFL-CIO associate general counsel; NLRB attorney Kent Hirozawa, the chief counsel to Chairman Pearce; and two management-side labor law attorneys: Philip Miscimarra and Harry Johnson.

Confirmation of the five NLRB Members ended a months-long blockade of President Obama's nominees by Senate Republicans trying to curb the NLRB's efforts to overturn decades' worth of labor law.  Earlier this month, Senate Majority Leader Harry Reid (D-Nev.) threatened to change the Senate's rules to eliminate filibusters against such executive branch nominees in order to thwart the Senate Republicans' efforts.  Yesterday's Senate votes were part of a brokered agreement between the White House and top Senate leaders, pursuant to which President Obama withdrew two of his more controversial recess appointees to the NLRB, Democrats Sharon Block and Richard Griffin, in exchange for the Senate's swift approval of his new slate of nominees.

Labor unions are excited about the newly reconstituted NLRB with AFL-CIO President Richard Trumka stating that the confirmation of the five NLRB nominees is "[g]ood news for all workers seeking to exercise the rights they are guaranteed by law . . . ." as the "country has qualified public servants on duty to defend America's workers, businesses and families."  However, employers and top Republicans, such as Senator Lamar Alexander (R-Tenn.), are not as enthused.   In a July 30, 2013 statement, Senator Alexander expressed his reservations about Democratic NLRB Members Schiffer and Hirozawa and their ability to transfer from their positions as union advocates to impartial judges when employers come before the NLRB.

News of the NLRB confirmations was heavily overshadowed by a number of pending court challenges to a number of President Obama's prior recess appointments to the NLRB.  The U.S. Supreme Court has already announced it will hear oral arguments during its 2013-2014 judicial term in the case of National Labor Relations Board v. Noel Canning.  In Noel Canning, the U.S. Court of Appeals for the District of Columbia invalidated President Obama's three January 4, 2012 recess appointments to the NLRB finding that they exceeded the scope of the President's authority under the Recess Appointments Clause of the U.S. Constitution as they were made outside of "intersession recesses," the time period between new annual sessions of the Senate.  In addition, on May 16, 2013, the U.S. Court of Appeals for the Third Circuit found that President Obama's purported recess appointment of former NLRB Member Craig Becker on March 27, 2010 was invalid in the case of NLRB v. New Vista Nursing and Rehabilitation.  It remains to be seen if the Supreme Court will review the New Vistacase at the same time it considers the Noel Canning case.  However, if the Supreme Court upholds the circuit courts' invalidation of the NLRB recess appointments in New Vista and Noel Canning, overone thousand NLRB decisions issued since March 27, 2010, along with a large number of other regulatory actions, including interagency appointments, could be vacated and/or subject to additional administrative action and review, resulting in potentially significant costs to taxpayers and the parties involved in such NLRB proceedings.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.