Issues remain despite NLRB confirmations

The Senate’s confirmation of all five nominees to the National Labor Relations Board may end some of the uncertainty that has loomed over the controversial agency for years. But it does not signal an end to the battles over the NLRB’s authority or the president’s appointment powers.

The July 30 vote to confirm Mark Pearce, Nancy Schiffer, Kent Hirozawa, Harry Johnson III and Philip Miscimarra marks the first time in a decade that the agency has been fully staffed by Senate-confirmed members.

The move was part of a deal struck between Republican and Democratic lawmakers that ended a stalemate over  President Barack Obama’s nominees to the NLRB, Consumer Financial Protection Bureau and other agencies and prevented a controversial proposed rule change that would have limited lawmakers’ ability to filibuster nominees to federal agencies. As part of that deal, Obama agreed to withdraw the nominations of two NLRB members who had been installed via controversial recess appointments: Sharon Block and Richard F. Griffin Jr.

The confirmations came less than a month before the NLRB would have fallen below its statutory minimum quorum requirement of three members — as established by the U.S. Supreme Court’s 2010 ruling in New Process Steel v. NLRB — and thus lose its authority to operate.

But the recess appointment controversy is not entirely over: the Supreme Court is still poised to decide NLRB v. Noel Canning next term. In that case, the justices will consider whether the president had the constitutional authority to install members via recess appointments during a brief break in the congressional session, as he did in January 2012, or if such appointments can only be made during formal intersession recesses.

Depending on how the court decides, “all the decisions that the board has made for more than the last year could still be invalidated,” said William P. Barrett, a partner in the Raleigh, N.C., office of Williams Mullen PC.

Lawmakers take sides

Lawmakers are still lined up on opposite sides of this issue.

Sen. Tom Harkin, D-Iowa, who chairs the Senate Committee on Health, Education, Labor and Pensions, said he hoped the confirmations end what had become a fierce political battle.

“The time has come to start a new chapter for the NLRB,” Harkin said.  “It’s time to ratchet down the political rhetoric that has recently haunted this agency and let the dedicated public servants who work there do their jobs.”

But Sen. Lamar Alexander, R-Tenn., the ranking member of the committee, said that while he supported the decision to hold up-or-down votes on Obama’s picks, he still firmly believes that the president overstepped his authority in 2012. Those appointments came after several efforts by House GOP lawmakers to keep Congress from going into recess by gaveling in pro forma sessions during which no business was conducted.

“If the president could make recess appointments while the Senate’s not in recess, the Senate could adjourn for lunch and come back and find we have a new Supreme Court justice,” Alexander said on the Senate floor before the vote.

Court could sidestep

The recent confirmations lessen the urgency of the issue the justices will take up some time next fall in Noel Canning.  The case will require the court to weigh in on the limits of executive authority and the balance of political powers — a broad subject of immense consequence that it may want to avoid now that all of the people installed as recess appointments to the NLRB and the Consumer Financial Protection Bureau have either been confirmed by the Senate or withdrawn from consideration.

“I’m not sure the Supreme Court wants to reach that issue,” said Frank L. Kollman, founding partner of the Timonium, Md., firm of Kollman & Saucier.

Barrett agreed.

“The impact of the ruling will reach not just the NLRB and the [CFPB], but other agencies as well,” he said.

The confirmations don’t immediately end circuit court challenges to many of the hundreds of NLRB rulings that were made when the board was mostly constituted of recess-appointed members. Even after the D.C. Circuit struck down the appointments in January, the board continued to operate, handing down decisions, rules and guidance on issues such as the use of social media in the workplace, confidentiality in internal investigations and other matters that have led to litigation across the country.

Despite the controversy, attorneys expect little to change on the ground. Most NLRB-related litigation happens at the regional offices and would have remained largely unaffected even if the board had fallen below its statutory quorum requirement. And even if the Supreme Court strikes down the decisions and rules handed down by the recess-appointed members, the new board also has a Democratic majority and will likely come to the same conclusions as their predecessors when the matters are re-adjudicated.

But when there is an administration change, everything will be different again.

“This is still an Obama labor board,” Barrett said. “If you are a student of history, you know that the board’s jurisprudence vacillates greatly depending on the administration.”