NLRB Has Five Board Members for First Time in a Decade

On Monday, the National Labor Relations Board announced that the Senate has filled all five of its Board Member seats for the first time since August 21, 2003. Moving forward, this ends the debate as to whether the Board has the constitutional authority to take action, such as issuing decisions, so long as three of these Senate-confirmed members are present when the Board takes action.

As previously reported, the NLRB must have three members present to take action, and, according to multiple Courts of Appeals, the Board has not had the minimally-required three members since August 27, 2011. Several Circuit Courts have deemed prior Board appointments by President Obama unconstitutional because he never secured the advice and consent of the Senate. (The United States Court of Appeals for the Fourth Circuit recently became the third Appellate Court to deem President Obama’s prior appointments unconstitutional in NLRB v. Enter. Leasing Co. Se., LLC and Huntington Ingalls Inc. v. NLRB.) This week’s announcement marks an end to legal challenges about the Board’s constitutional authority to take action. As reported earlier this Summer, the U.S. Supreme Court will address the President’s earlier appointments, which may render hundreds of Board decisions invalid once and for all.

Notably, there is no indication that the Board, which has expanded its role in recent years by attempting to implement pro-union work rules, and challenging seemingly innocuous policies by non-union employers as “anti-union,” will change its ideology despite its new makeup. Mark Gaston Pearce will continue to serve as Chairman of the Board. Nancy Schiffer, who previously served as a lawyer for a large international union, and Kent Hirowaza, who previously worked as a lawyer on Chairman’s Pearce’s staff, are expected to form a pro-union majority with Chairman Pearce. Rounding out the Board are two lawyers who previously represented businesses in labor matters, namely, Harry I. Johnson, III, and Philip A. Miscimarra.

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