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Currently, the five-seat National Labor Relations Board (NLRB) is operating with only three members, all of whom are Democrats: Mark Gaston Pearce (Chairman), Sharon Block and Richard Griffin. On April 9, 2013, President Obama took steps to fill the NLRB's two empty seats by appointing Republicans Harry Johnson and Philip Miscimarra. Both Johnson and Miscimarra are private practice attorneys representing management in labor and employment matters. Along with Johnson and Miscimarra, President Obama also renominated Chairman Pearce, whose current appointment ends in August 2013, to serve another term on the NLRB.
If the Senate approves the President's nominations, the board would have a full complement of five members. Its makeup of three Democrats and two Republicans would be in line with the tradition of the NLRB having three members from the president's party and two members from the opposing party.
However, as we informed you in January 2013, the D.C. Circuit determined that President Obama's January 2012 recess appointments of Members Block and Griffin were unconstitutional. Shortly after this decision, President Obama renominated Block and Griffin to fill seats on the NLRB. Their renominations are currently pending before the Senate. The NLRB has announced that it will appeal the D.C. Circuit's decision, so the ultimate legitimacy of Block's and Griffin's recess appointments, and the validity of all of the NLRB's decisions since January 2012, will likely be determined by the United States Supreme Court.
It is unknown whether the Senate will confirm President Obama's nominations of Miscimarra and Johnson, as well as the renominations of Chairman Pearce and Members Block and Griffin.
Stay tuned, as we will keep you updated on any further NLRB developments. In the meantime, if you have questions about how this development affects your business, contact any of Faegre Baker Daniels' labor and employment lawyers.
