President Obama announced his intention today to nominate three individuals to the NLRB. The President’s action comes at a time when the authority of the NLRB to act in cases and rulemaking activities is on appeal to the U.S. Supreme Court and when only one of the sitting NLRB members has been confirmed by the U.S. Senate.
The three individuals nominated are Mark Pearce (D), Harry Johnson, III (R), and Philip Miscimarra (R). Mr. Pearce currently serves as the NLRB Chairman, and is the only Senate-confirmed member of the NLRB. His term, however, ends in August 2013. If he is not renominated, and confirmed, the NLRB will fall below three members and be unable to carry out its statutory duties. President Obama’s nomination intends for Mr. Pearce to continue as Chairman.
Mr. Johnson is a partner with the firm of Arent Fox, and is a labor and employment law attorney representing employers. Mr. Miscimarra is a partner with the firm of Morgan, Lewis, and Bockius, and is also a labor and employment law attorney representing employers. Additional information about Messrs. Johnson and Miscimarra can be found in the NLRB’s press release.
Already pending are the nominations of Richard Griffin (D) and Sharon Block (D). Unlike Messrs. Johnson and Miscimarra, however, Mr. Griffin and Ms. Block already serve on the NLRB as a result of recess appointments President Obama made at the beginning of 2012. Whether those appointments are constitutional is the issue currently on appeal to the Supreme Court in Noel Canning.
For the labor professional, the President’s action today holds the possibility that an agreement can be reached on the membership of the NLRB. The nominees for the NLRB now at least reflect the traditional bipartisan make-up of the five-member board, with the majority of members being of the President’s party.
Given the divisiveness of some of the NLRB’s decisions and rulemaking efforts in the last few years, however, prompt Senate action is not at all guaranteed. In fact, some may view it as a positive for employers if the NLRB is unable to decide cases and issue new administrative rules. Inaction by the Senate ensures this outcome by August 2013 at the latest, when Chairman Pearce’s term expires.