Full House: The Newly Confirmed NLRB Is Not One to Bet On

Contributed by Beverly Alfon

The National Labor Relations Board (NLRB) now has three of a kind and a pair of another.  As a result of a bipartisan deal, on July 30, 2013, the U.S. Senate confirmed five nominees for appointment to the NLRB.  The three Democrat-backed confirmations include Kent Hirozawa, Nancy Jean Schiffer and Mark Gaston Pearce (current NLRB Chairman).  Two Republican-backed nominees, Philip Miscimarra and Harry Johnson III, were also confirmed. This is the first time in ten years that the NLRB has had a fully confirmed five-member Board. 

The normally long nomination and confirmation process advanced at quicker pace than usual, likely because NLRB Chairman Mark Gaston Pearce’s term was set to end this month – leaving the NLRB without the required quorum to conduct business.  NLRB Chairman Pearce, a former union attorney, will now be joined by pro-union Hirozawa and Schiffer – constituting a majority of the confirmed Board.

Hirozawa spent most of his career representing unions.  For the past three years, he has served as chief counsel to NLRB Chairman Pearce.  This is the same time period in which the NLRB attempted to implement its “ambush” election rules and notice posting requirements – both of which were invalidated.  It is also the time period during which Pearce took part in rendering numerous unfavorable decisions for employers. 

Schiffer’s propensities are also pro-labor.  For the past 12 years, she has been working as an associate general counsel for the AFL-CIO.  Prior to that, she worked for 18 years in the legal department of the United Auto Workers (UAW) Union.  In 2007, she testified before a House subcommittee in support of the Employee Free Choice Act.  That legislation would have enabled unions to be certified as the collective bargaining representative of a unit of employees simply by collecting signatures from a majority of those employees, instead of allowing the employer to demand a secret ballot election process as required under existing NLRB procedures.  When Senator Tim Scott, a South Carolina Republican, expressed concern about Schiffer’s ability to be unbiased in light of her testimony generalizing employers as bribing and threatening in face of union organization, Schiffer responded that she was speaking from “personal experiences.”  See, http://www.scott.senate.gov/press-release/senator-tim-scott-questions-nlrb-nominees. 

In short, employers should expect that for the foreseeable future, a pro-union agenda will continue at the NLRB.   Indeed, confirmation of the full Board ensures that its decisions going forward will not be subject to invalidity challenges based on a lack of quorum. 

What about the decisions of the “invalid” Board?  All eyes will be on the U.S. Supreme Court’s next term, which will begin on October 7, 2013.  The Court will be reviewing a decision that the U.S. Court of Appeals for the District of Columbia issued earlier this year, ruling that President Obama’s January 4, 2012 appointment of two Board members (Sharon Block and Richard Griffin) was invalid (Noel Canning Div. of Noel Corp., U.S., No. 12-1281, cert. granted 6/24/13).  If the Supreme Court agrees that the recess appointments were invalid, the ruling would call into question approximately 900 decisions that the Board issued between January 4, 2012 and July 30, 2013, including key decisions that overturned established precedent. 

Bottom line:  Employers should expect that the NLRB be very active in its policy and rule making efforts – including a renewed effort to promote the principles of the failed Employee Free Choice Act.  It is now more important than ever to read the cards with eyes wide open and remain on top of changes in federal labor law.