July 31, 2013

Senate Confirms 5 Members Of NLRB, Leaving It With A Quorum

For the first time since January 2012, the National Labor Relations Board (NLRB) unquestionably has a quorum to issue rulings.  This comes on the heels of the U.S. Senate’s votes yesterday to confirm a 5 members of the Board, three of whom are labor-friendly and two of whom have a management background.  They are: Mark Gaston Pearce, the current Board Chairman whose term was set to expire in August; Kent Hirozawa, Pearce’s chief counsel; Nancy Schiffer, a retired associate general counsel at the AFL-CIO; and Philip A. Miscimarra and Harry I. Johnson III, both partners at large law firms.  The votes for the Democratic nominees were along party lines.

This means that for the first time in over 18 months, there is no question whether the Board has a quorum which empowers it to issue rulings.  Since January 2012, the Board has issued controversial decisions which allow employees who criticize their employers on social media, invalidate class action waivers in arbitration agreements, prohibit confidentiality in internal investigations, and invalidate common at-will employment disclaimers in employee handbooks.  With a full panel, there is no legal uncertainty as to whether the Board can issue those, and other controversial decisions in the future.

This does not, however, resolve the uncertainty as to the Board’s decisions since January 2012, which were first called into question when the U.S. Court of Appeals for the D.C. Circuit issued a ruling in Noel Canning v. NLRB, finding that President Obama’s recess appointments to the NLRB were improper.  If the U.S. Supreme Court affirms that decision, then all Board precedent since January 2012 is likely to fall.  The Supreme Court will hear that case in the Fall.