Senate ready to take up NLRB nominations

by Tammy Binford

The full Senate is expected to vote on all five nominations to the National Labor Relations Board (NLRB) within the next few days, a move that could give the NLRB its full membership confirmed by the Senate for the first time in more than a decade.

The Senate Committee on Health, Education, Labor, and Pensions held a hearing on the nominations of Democrats Kent Hirozawa and Nancy Schiffer on July 23, and on July 24, it voted 13-9 to send their nominations to the full Senate.

Hirozawa is chief counsel to NLRB Chairman Mark Gaston Pearce, and Schiffer is a former associate general counsel at the AFL-CIO.

In addition to the Hirozawa and Schiffer nominations, the Senate will vote on the nominations of Republicans Harry I. Johnson, III, and Philip A. Miscimarra as well as the nomination of Pearce, a Democrat. Pearce’s term expires on August 27, but he has been nominated for a new term. The Johnson, Miscimarra, and Pearce nominations were approved by the Senate committee in May.

If the nominees are confirmed by the Senate, it will be the first time in over a decade that the NLRB hasn’t operated with some members serving as recess appointments that were never confirmed by the Senate. Currently, Pearce is the only member to have received Senate confirmation. He began his term in April 2010 as a recess appointee but was confirmed by the Senate on June 22, 2010.

NLRB membership went from five to four in July 2012 when member Terence F. Flynn resigned after allegations that he inappropriately shared nonpublic Board information with former NLRB member Peter Schaumber. Board membership was reduced to three when Republican member Brian Hayes’ term expired in December 2012.

The status of Democratic members Sharon Block and Richard Griffin came into question in January when the U.S. Court of Appeals for the District of Columbia Circuit ruled in Noel Canning v. NLRB that their appointments were invalid. They went on the NLRB as recess appointments in January 2012. The normal process for Board appointments is for the president to send nominees to the Senate for confirmation, but the president is allowed to make appointments without confirmation if the Senate is in recess.

The appointments of Block and Griffin were disputed because the Senate was on a holiday break when they were made, but it remained in pro forma session instead of being in official recess. The NLRB has asked the U.S. Supreme Court to review the Noel Canning decision, and Block and Griffin have kept their Board seats pending Supreme Court action.

Senator Lamar Alexander, a Tennessee Republican and ranking committee member, was among those voting against the nominations of Schiffer and Hirozawa. “My primary concern is the ability of these two to set aside their pro-union advocacy past and act as neutral arbiters between employees and employers, so those parties can trust them to fairly adjudicate labor disputes,” Alexander said. “Will they be judges and not advocates? That is what the National Labor Relations Act requires. So far, my concerns haven’t been lessened.”

Senator Tom Harkin, an Iowa Democrat, praised the committee’s vote. “Once these five nominations are approved by the Senate, our country will have a fully confirmed, fully functional Board for the first time in more than a decade—a huge step forward for workers, businesses, and our economy,” he said.