NLRB, now with all members confirmed by Senate, begins first week reviewing labor cases
By Olivera Perkins, The Plain Dealer
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on August 13, 2013 at 6:42 PM, updated August 14, 2013 at 3:57 PM
This week marked the first in a decade in which all five National Labor Relations Board members were confirmed by the U.S. Senate.
August 21, 2003 was the last time the board was fully staffed, according to a NLRB news release. But perhaps the most recent case of the panel operating with members who hadn’t gotten Senate confirmation is the most politically charged.
The Senate confirmed four new members in July, all of whom were nominated by President Barack Obama. Before the new members were confirmed and sworn in, the board included two members who had not received confirmation by the Senate. Former members Richard Griffin and Sharon Block joined the board after the president appointed them in January 2012 while the Senate was in recess.
In July, Republicans agreed not to challenge the nominees to replace Griffin and Block. The Senate confirmed Nancy Schiffer, who served as associate General Counsel to the AFL-CIO from 2000 to 2012 and Kent Hirozawa who was chief counsel to current NLRB Chairman Mark Gaston Pearce.
The NLRB is a federal agency charged with protecting employers and employees from unfair labor practices. While it is often associated with complaints brought by organized labor, the agency is designed to protect the right of private sector employees “to join together, with or without a union, to improve wages, benefits and working conditions.” The NLRB’s functions include conducting hundreds of workplace elections and investigating thousands of unfair labor practice charges each year.
Many unions expressed elation at the board now being fully staffed.
“With these confirmations, the one body of government whose sole purpose is to protect workers’ rights and enforce their protections under the law has been returned to full strength for the first time in over a decade,” said Teamsters General President Jim Hoffa in a release. “The path to this compromise was not easy — strong leadership in the Senate was the key to finally moving the NLRB forward.”
Hans Bader, senior attorney with the Competitive Enterprise Institute in Washington, D.C., which supports free market principles, said having a fully-staffed board doesn’t resolve issues relating to the recess appointments. The Supreme Court has agreed to decide if Obama’s NLRB appointments last year violated the Constitution. The court will review a decision earlier this year by a three-judge federal appeals court panel that ruled against the administration. In fact, the panel broadly called into question the constitutionality of many recess appointments by presidents of either party.
If Obama’s appointments weren’t valid, that means the board lacked a quorum. Bader said that would also mean hundreds of NLRB decisions could be called into question. He said one solution for avoiding this would be for the NLRB to reaffirm decisions made without a quorum.
“They can’t reaffirm those decisions all en masse,” Bader said. “They will have to look at them individually.
“They have to look at them again, while pretending it is not a rubber stamp,” he said. “They have to pretend they have an open mind. They have to go back and look at the record and reach the conclusion. It is going to take a lot of time.”
In the addition to Schiffer, Hirozawa and Pearce, who has been chairman since August 2011, the other NLRB members are: Harry Johnson, III, who was a partner with law firm Arent Fox LLP in Los Angeles and Philip Miscimarra, who was a partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP in Chicago.