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 Griffin and Block’s nominations were withdrawn as part of a deal reached in the Senate to secure a vote on all five Members.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.