When is a Full House Worse Than Two of a Kind? When the NLRB Is Involved

On July 30, 2013, the U.S. Senate confirmed five nominees for appointment to the NLRB.full house The three Democrat-backed confirmations include Kent Hirozawa, Nancy Jean Schiffer and Mark Gaston Pearce (former union attorney and current NLRB Chairman whose term was set to expire this month). 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. You may recall that in January of this year the U.S. District Court for the District of Columbia ruled that President Obama’s three “recess” appointments to the NLRB unconstitutional, leaving only two validly-seated members of the Board.

Former union employees and supporters now comprises a majority of the full Board. Hirozawa spent most of his career representing unions and for the past three years, he has served as chief counsel to NLRB Chairman Pearce. Not an especially distinguished or fair-minded period of time in the history of the Board.

For the past 12 years, Schiffer has been employed as associate general counsel for the AFL-CIO. Before 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, legislation which would have deprived workers and employers of the right to secret ballot elections. 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.” Schiffer’s pro-union sympathies are well documented.

Employers should expect that a pro-union agenda will continue at the NLRB. And, confirmation of the full Board ensures that its decisions going forward will not be subject to invalidity challenges based on a lack of quorum. The prior decisions of the quorum-less board will be before the U.S. Supreme Court this term, which begins on October 7, 2013. The Court will review a decision by the U.S. Court of Appeals for the District of Columbia holding that President Obama’s January 4, 2012 appointment of two Board members (Sharon Block and Richard Griffin) was invalid. If the Supreme Court affirms this decision, the ruling would call into question approximately 900 decisions that the Board issued between January 4, 2012 and July 30, 2013.

Unfortunately, one can assume that the new Board will be just as pro-union and activist in its rulings as the prior, partial Board. We can expect to see renewed efforts by the Board to promote Employee Free Choice Act like policies. It is more important than ever that employers remain abreast of the current developments in this area and maintain close and open communications with your employees.

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