Yesterday, the Senate voted to confirm five Members to the NLRB, marking the first time in a decade that the Board has consisted of five Senate-confirmed Members. In addition to current NLRB Chairman Mark Pearce, the new Board consists of two Democrats, Nancy Schiffer and Kent Hirozawa; and two Republicans, Harry Johnson III and Philip Miscimarra.

Hirozawa served as Chairman Pearce’s chief counsel prior to his confirmation as a Board Member and Schiffer is a former associate general counsel (retired) for the ALF-CIO. Both of the Republican Members were previously in private practice.

Schiffer and Hirozawa will replace the two Democrats (Richard Griffin and Sharon Block) who were appointed by the President on January 4, 2012. As we’ve reported in the past, these appointments have been challenged in court. To date, three courts of appeals (the Third, Fourth, and D.C. Circuits) have held that the recess appointments were invalid because they were not made during an intersession break in the Senate. Griffin and Block’s nominations were withdrawn as part of a deal reached in the Senate to secure a vote on all five Members.

The legal issues surrounding the Board’s composition are far from over though. Challenges to the recess appointments are pending in other circuits, and the Supreme Court will be hearing arguments in Noel Canning next term. We will continue to monitor these developments and report on them.

 

 

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Photo of Justin Keith Justin Keith

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs

Justin F. Keith represents employers in all areas of labor and employment law—including reductions in force, litigation of discrimination, harassment, whistleblower, and retaliation claims, and numerous other personnel and workplace issues—before state and federal agencies and in courts throughout the country.

Justin Co-Chairs the firm’s Labor & Employment Practice’s Labor-Management Relations group and advises clients in all areas of traditional labor law, including union organizing campaigns, collective bargaining negotiations, unfair labor practice charges and representation case proceedings before the NLRB, union avoidance strategy and training, strike response and contingency planning, grievance arbitration proceedings, and appellate litigation before the NLRB and the Courts of Appeals. Justin was co-counsel to New Process Steel in the landmark Supreme Court case, New Process Steel v. NLRB, 560 U.S. 674 (2010). He is also a contributing editor of The Developing Labor Law, the leading treatise on U.S. labor law, and a frequent speaker to legal and industry groups on labor and employment issues.

Justin has litigated dozens of wage and hour class actions brought under the Massachusetts Wage Act and nationwide collective actions under the Fair Labor Standards Act. He represents employers across a broad spectrum of industries, including retail, transportation, delivery services, and telecom services in nationwide class and collective actions brought throughout the country.

Justin regularly provides counsel to senior management and human resource personnel on employment law compliance matters, such as reductions in force, leaves of absence, exempt status classification under the FLSA and state law, employee discipline, sexual harassment, discrimination and retaliation, and restrictive covenant agreements.