Yesterday, the Senate effectively put an end to the ambiguity surrounding the current validity of the National Labor Relations Board (NLRB) by confirming all five of President Obama’s Board nominees. The Board’s authority to act had been under scrutiny for quite some time, as several Circuit Courts of Appeal, beginning with January’s Noel Canning decision, had held that President Obama’s intrasession recess appointments to the NLRB did not pass constitutional scrutiny. However, that cloud of uncertainty seemed to lift a a little over a week ago during negotiations in the Senate over the "nuclear option." The President agreed to drop members Sharon Block and Richard Griffin from consideration and in exchange, he nominated Nancy Shiffer and Kent Hirozawa to serve as Board members instead.
The Board will now include a full complement of five members for the first time in a decade. Those members, led by current Chairman Mark Gaston Pearce, will also include fellow Democrats Shiffer, a former attorney for the AFL-CIO, and Hirozawa, Pearce’s former chief counsel. Republicans Harry I. Johnson III and Philip A. Miscimarra, who were nominated by the President back in April of this year, round out the five confirmations.
President Obama expressed his delight at the confirmations in a short written statement.
“I applaud the Senate for putting in place a full board and look forward to working together on other steps we can take to grow our economy.”
Others, however, including Randy Johnson of the U.S. Chamber of Commerce, were much more skeptical of the Board’s new members.
"Frankly, we’re concerned about the composition on the board and we can only hope that they’ll bring objectivity to their decisions."
Senator Lamar Alexander (R-TN), further expressed doubts that Hirozawa and Shiffer would be able to act impartially while serving as Board members.
“Fairness and impartiality is what I look for in an NLRB nominee,” Alexander said Tuesday. “Two of those nominees do not meet that standard.”
Last week, we wrote a piece on this Blog discussing what labor watchers can expect from this new Board. With the now-confirmed Board made up of two Republicans and three Democrats, the bottom-line is that employers can expect the NLRB to continue its aggressive agenda. In particular, it is likely that the Board will attempt to push its "Quickie Election" procedures forward, despite the fact that it is currently on-hold because the rule was invalidated on procedural grounds. Furthermore, the Board will in all probability allow for the proliferation of "micro-units," wherein unions seek to organize a very small group of employees within a workplace.
As the Board will likely continue along its pro-employee bent, employers would do well to take a look at the @LRToday Year in Review, wherein we summarize the major 2012 decision handed down by the Board and make predictions about where labor law is headed in 2013 and thereafter. Please note that we will be following President Obama’s new Board very closely here, so keep checking @LRToday in order to stay up to date on all things labor law.
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