The Senate confirmed all five of the President’s nominees to serve as National Labor Relations Board (the “Board”) members on July 30, 2013. This gives the Board a full complement of Senate-confirmed members for the first time in a decade.
The Board now includes Democrats Board Chairman Mark Gaston Pearce, whose term was set to expire in August, Kent Hirozawa, who has served as Pearce’s chief counsel, and Nancy Schiffer, a retired associate general counsel at the AFL-CIO. The two Republican members are Philip Miscimarra, a partner at Morgan Lewis & Bockius LLP, and Harry I. Johnson III, a partner at Arent Fox LLP.
The nominations of Hirozawa and Schiffer on July 16, 2013 were part of a Senate deal to avert a filibuster showdown. Hirozawa and Schiffer replaced the previous renominations of Richard F. Griffin, Jr. and Sharon Block, on February 13, 2013. One may recall that it was their appointment as Board Members on January 4, 2012, during what the President considered to be a recess, that led to the D.C. Circuit’s Noel Canning decision that the Senate was not actually in recess and the appointments were unconstitutional. That decision is currently on appeal to the U.S. Supreme Court.
Republicans engaged in efforts to block the Griffin and Block nominations, as well as several other nominations, and Democrats countered by threatening a rule change to end filibusters of executive nominations. As a compromise, Democrats agreed not to force the rule change, and Republications agreed not to filibuster the two new nominees or Pearce’s renomination.
The new nominations remove any doubt about Board authority going forward and are not expected to cause a shift in the Board’s approach to labor law issues, because the Board still contains a Democrat majority. Further, even if Noel Canning is upheld on appeal to the U.S. Supreme Court, the new Board will be able to reissue all the decisions called into question.