On April 9, 2013, President Obama announced his intention to nominate three members to the National Labor Relations Board (NLRB), renominating current Democratic NLRB Chairman Mark Gaston Pearce, whose term expires on August 27, 2013, and making two new nominations of management-side labor lawyers—Republicans Philip A. Miscimarra and Harry I. Johnson, III. Miscimarra is a partner with Morgan, Lewis & Bockius in Chicago; Johnson is a partner with Arent Fox in Los Angeles. Pearce was formerly a union-side lawyer who practiced in Buffalo, New York.
These three nominees join previously nominated Democrats Richard F. Griffin, Jr. and Sharon Block, who currently serve as “recess” appointees on the Board. Griffin was the former General Counsel of the International Union of Operating Engineers; Block was a former Senate staff member for the late Senator Edward M. Kennedy (D-MA) and an official under former Secretary of Labor Hilda L. Solis.
The resulting proposal is a five-member package, which includes the two invalid and unconstitutionally-appointed members, Griffin and Block. Senate Republicans appear unlikely to confirm the package, however, especially with the two “recess” appointees.
Congressional Republicans demanded that Griffin and Block resign once their recess appointments were declared unconstitutional by the District of Columbia Circuit Court of Appeals.
The recess appointments of Griffin and Block were made when the Senate was not in “recess.” The recess appointments were declared unconstitutional and therefore invalid by the D.C. Circuit in Noel Canning v. NLRB. Pursuant to Noel Canning, all decisions of the invalidly-constituted Board since the recess appointments were announced on January 4, 2012 are void due to the lack of a three-member quorum consistent with the U.S. Supreme Court’s New Process Steel precedent. The NLRB is expected to file a petition for certiorari by April 25, seeking the U.S. Supreme Court to review the D.C. Circuit’s Noel Canning decision.
Since the Noel Canning decision, the D.C. Circuit has stayed all further consideration of pending NLRB decisions before the court. Chairman Pearce, however, announced the Board’s non-acquiescence with the Noel Canning decision and his intent to continue issuing decisions by the three Board members, including the two recess appointees. Of course, since the D.C. Circuit is the default circuit under the National Labor Relations Act where all appeals may be filed regardless of where the matter arose, many employers have rushed to file appeals with the D.C. Circuit before the NLRB can seek enforcement in a different circuit.
This constitutional cloud over NLRB decisions has caused the House of Representatives to introduce H.R. 1120, the Preventing Greater Uncertainty in Labor-Management Relations Act. The bill requires the Board to cease all activity until the uncertainty surrounding the NLRB is resolved. The legislation also requires a constitutionally confirmed quorum of Board members to review all decisions issued since January 4, 2012. The House is expected to consider the bill during the week of April 8.
Thus, the recent nominations are unlikely to be confirmed, especially if the “package” contains the two recess appointees. But even if the Senate confirms the five-member package, or perhaps a smaller package of four members leaving the Board at a two-to-two stalemate where routine cases could be decided but not precedent-reversing cases, the constitutional crisis created by the unconstitutional “recess” appointments from January 4, 2012 would still have to be decided by the Supreme Court.