The National Labor Relations Board (NLRB), crippled by a January court ruling against two recess appointees, has the potential to get back to full strength if the Senate confirms nominations President Barack Obama made April 9. Previous attempts to fill the NLRB have failed over congressional opposition to Board actions and Obama’s nominees.
On April 9, Obama nominated Republicans Harry I. Johnson, III, and Philip A. Miscimarra along with Democrat Mark Gaston Pearce. Pearce is the current NLRB chair. His term is set to expire August 27. Johnson and Miscimarra are both management-side employment attorneys.
“With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation,” Obama said in announcing the nominees. “I urge the Senate to confirm them swiftly so that this bipartisan Board can continue its important work on behalf of the American people.”
Pearce is the only current member of the NLRB to have been confirmed by the Senate. Two others, Democrats Sharon Block and Richard Griffin, went on the Board on January 4, 2012, as recess appointments, but the January U.S. court of appeals ruling found that those appointments were unconstitutional because the Senate wasn’t technically in recess when they were made. The Obama administration has appealed that ruling to the U.S. Supreme Court.
With their status as recess appointees uncertain, Obama sent nominations of Block and Griffin to the Senate on February 13.
Another recess appointment made January 4, 2012, put Republican Terence Flynn on the NLRB, but he resigned his seat in July 2012 after reports that he had inappropriately shared nonpublic Board information with a former NLRB member.
With the recess appointments, the normally five-member NLRB was briefly at full force. But with Flynn’s resignation and Republican member Brian Hayes’ term expiring on December 16, 2012, the membership fell to three–Pearce, Block, and Griffin. With the court determining the appointments of Block and Griffin were unconstitutional, the status of the Board was up in the air.
The nominations come at a time when the House is expected to vote on a bill that would prevent the NLRB from doing business until it has a quorum of members confirmed by the Senate.
Organized labor reacted to Obama’s latest nominations by urging confirmation. “For America’s workers, businesses, and the promotion of healthy commerce, putting forward a full, bipartisan package of nominees to the NLRB is the right thing to do,” AFL-CIO President Richard Trumka said. “The package includes individuals who have challenged recent actions by the NLRB and who have views on labor relations matters that we do not agree with. But working people need and deserve a functioning NLRB, and confirmation of a full package will provide that stability.”
The Communications Workers of America released a statement commending Obama for making the nominations and pointing out that confirmation of Pearce, Johnson, and Miscimarra along with two previously announced nominees would restore the NLRB to its full membership.