The U.S. Senate’s July 30 vote to confirm nominees for all five seats of the National Labor Relations Board (NLRB) means the Board will have a full slate of confirmed members for the first time in more than a decade.
Republicans Harry I. Johnson III and Philip A. Miscimarra and Democrats Kent Hirozawa and Nancy Schiffer were confirmed for first-time membership on the Board. The Senate also voted to confirm current Board Chairman Mark Gaston Pearce for a second term. His first term expires on August 27.
Johnson and Miscimarra are partners at law firms that represent employers. Schiffer is a former associate general counsel of the AFL-CIO, and Hirozawa has been serving as chief counsel to Pearce.
The road to full membership has been rocky for the NLRB, which is tasked with upholding the National Labor Relations Act (NLRA). Since July 2012, the normally five-member Board has had just enough members—three—to maintain a quorum. But the status of two members was uncertain after a federal appeals court’s ruling on January 25, 2013, declared their appointments unconstitutional. The members—Democrats Sharon Block and Richard Griffin—went on the Board as recess appointments on January 9, 2012.
The normal process for filling NLRB vacancies is for the president to send nominations to the Senate for confirmation. When the Senate didn’t take action on President Barack Obama’s nominees, he used a constitutional provision that allows the president to put members on the Board without confirmation when the Senate is in recess.
The Senate was on a holiday break when Obama made the recess appointments, but the body wasn’t in an official recess because it remained in pro forma session, meaning some kind of action was taken at least every few days even though most senators were on break.
The administration argued that the Senate was essentially in recess, but the U.S. Court of Appeals for the District of Columbia Circuit ruled that the recess appointments were invalid because the Senate wasn’t in an official recess. The NLRB asked the U.S. Supreme Court to review the appeals court’s decision, and in June, the high court agreed to hear the case. A ruling is expected in 2014.
After the D.C. Circuit ruled that Block’s and Griffin’s appointments were invalid, Obama sent the nominations to the Senate for confirmation, but the nominations weren’t acted on after the two nominees faced opposition because they remained on the Board after the court ruled that their appointments were unconstitutional. Obama then dropped the Block and Griffin nominations in favor of Hirozawa and Schiffer.
In mid-July, the Senate reached a bipartisan agreement that removed the obstacles that were holding up a vote on the NLRB nominees as well as nominees for other positions.