As part of the Senate’s recent compromise on filibusters, Republicans and Democrats agreed to give an up or down vote on a full slate of members for the National Labor Relations Board. In exchange, President Obama agreed to withdraw two previously nominated labor-friendly members who had been the subject of a heated battle over the President’s power to make recess appointments under the Constitution. Instead, President Obama intends to nominate Nancy Schiffer, a retired associate general counsel at the AFL-CIO, and Kent Hirozawa, who currently serves as chief counsel to NLRB Chairman Mark Gaston Pearce – both labor-friendly nominees. If the Senate confirms their nominations, as expected, the NLRB will have a majority of labor-friendly members. Pearce’s term expires on August 27, 2013, and he too is expected to be confirmed.
This compromise does not affect the validity of the Board’s decision dating back to when the recess appointments were made. If the U.S. Supreme Court were to find that the recess appointments were improper, then all Board decisions dating back to January 2012 – including important decisions on social media, arbitration agreements, internal investigations and employee handbooks — would likely be deemed invalid for lack of a quorum.