The U.S. Senate’s confirmation of all five nominees to the National Labor Relations Board (NLRB) received plenty of news coverage on Tuesday.
“For the first time in a decade, the National Labor Relations Board will have a full complement of Board members confirmed by the Senate,” said NLRB Chairman Mark Gaston Pearce in a statement. Pearce added that the confirmations will “revitalize” the NLRB.
The NLRB has been extremely active the past few years, especially in protecting the rights of all workers (both union and nonunion) to discuss the terms and conditions of their work.
The NLRB now has a full five members: Chairman Mark Gaston Pearce (D); Kent Hirozawa (D); Nancy Schiffer (D); Harry I. Johnson, III (R); and Philip A. Miscimarra (D).
Prior to the Senate’s confirmation, the NLRB was functioning with only three members. For the NLRB’s decisions or rules to be valid, a vote by a three-member quorum is necessary. The NLRB can now issues decisions or rules without fear that they will be challenged on the ground that there is not a proper quorum. In addition, the Senate dodged a shutdown of the NLRB in August by confirming the five nominees before leaving for the congressional summer recess.
Despite the Senate’s confirmation of all five appointees, one issue is still unsettled – whether the U.S. Supreme Court will rule that the earlier “recess appointments” made by President Obama were valid. More than one year ago, the president made appointments to the NLRB using his power to make appointments without Senate confirmation while the Senate is in recess. But the president’s appointments were challenged on the ground that the Senate was not officially in recess when the appointments were made.
Three separate federal circuit courts have ruled that the recess appointments were not valid. These decisions call into question the legitimacy of a number of precedent-setting decisions issued by the NLRB since January of 2012, including decisions regarding the use of social media and the rights of employees in all workforces to discuss the terms and conditions of their work.
Most recently, he Fourth Circuit Court of Appeals ruled on July 17, 2013, that President Obama’s January 4, 2012 “recess” appointments to the NLRB were unconstitutional because the Senate was not actually in recess at the time of the appointments.
Earlier this year, a different federal court, the U.S. Court of Appeals for the District of Columbia Circuit, ruled that that President Obama’s January 4, 2012 recess appointments to the NLRB were “constitutionally invalid” because the U.S. Senate was not actually in recess at the time President Obama made three appointments to the NLRB. The Third Circuit similarly invalidated the March 27, 2010, recess appointment of Craig Becker.
The U.S. Supreme Court will have the final say on this matter. The Court recently granted review of the District of Columbia case. The case is National Labor Relations Board v. Noel Canning (Docket No. 12-1281).
The case will be decided in the Supreme Court’s next term, which will begin on the first Monday in October 2013.