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NLRB Developments

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Days before the Senate adjourned for the month-long August recess, the chamber moved to confirm several key Obama appointments as part of a deal to avoid one of the most sweeping procedural changes in Senate history.  Senate Democrats and Republicans agreed to vote on several long-awaited confirmations as part of a deal with Senate Majority Leader Harry Reid to avoid Senate rule changes limiting the minority's right to filibuster executive branch nominations.

On July 18, the Senate confirmed Tom Perez as Secretary of the U.S. Department of Labor by a 54-46 vote.  Obama nominated Perez, formerly an assistant attorney general for the Justice Department’s Civil Rights Division, to serve as Labor Secretary in March and the Senate Health, Education, Labor and Pensions Committee approved his nomination in early-June.

As another part of the deal, the Senate confirmed President Obama’s recent nominees to the National Labor Relations Board (NLRB) on July 30. Two Democrats, Kent Hirozawa and Nancy Schiffer, were both confirmed on near party line votes of 54-44, including the support of one Republican, Lisa Murkowski from Alaska.  President Obama nominated the two labor lawyers after he withdrew (as part of the deal) two earlier nominees, Sharon Block and Richard Griffin, whose appointments to the NLRB during a congressional recess are currently being challenged in court.  The Senate also voted by voice vote to confirm two Republican lawyers, Philip Miscimarra and Harry Johnson, as well as Democratic Chairman Mark Gaston Pearce by a vote of 59-38 on the same day.

For the first time in a decade, the NLRB will have a full complement of members confirmed by the Senate. The current members of the NLRB are:

  • Chairman Mark Pearce (D) (chair since 2011 and former lawyer representing unions in private practice);
  • Kent Hirozawa (D) (who most recently served as chief counsel to Pearce and previously was a partner at Gladstein, Reif, and Meginniss in New York, a firm representing unions and workers);
  • Nancy Schiffer (D) (a long time union attorney, who most recently served as associate general counsel at the AFL-CIO prior to her retirement last year);
  • Phil Miscimarra (R) (who most recently represented management as a partner in the Chicago office of Morgan, Lewis & Bockius); and
  • Harry Johnson (R) (who most recently represented management as a partner in the Los Angeles office of Arent Fox).

Yet to Be Determined

The U.S. Supreme Court is reviewing Noel Canning v. NLRB; the challenge to the 2012 Block and Griffin recess appointments, and is expected to issue a decision sometime early 2014. In the meantime, it remains uncertain as to whether any of the Board's decisions or rules in which Block or Griffin participated will be ruled as valid. 

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