Employers and workers no longer in limbo: Following a Senate vote, the NLRB has been restored to full membership and will have unquestioned enforcement authority

For the first time since August 2003, the National Labor Relations Board (NLRB) is back to full strength. Following a bipartisan deal and a series of Senate confirmation votes on July 30, 2013, the NRLB has five fully approved members again.

The Board now consists of three Democrats, Kent Hirozawa, Nancy Schiffer, and Mark Gaston Pearce, and two Republicans, Harry I. Johnson III and Philip A. Miscimarra. Biographical background on each member, as well as the expiration dates of their appointments, was shared in the Board’s announcement of the appointments.

A deadlock over President Obama’s originally proposed candidates, which lasted over 18 months, resulted in the Board only having one or two Senate-confirmed members after President Obama made appointments during a Senate recess in January 2012. The empty seats were filled by controversial, and unapproved, recess appointments. Because the validity of those appointments is being challenged in court, the Board’s decisions since January 2102 have been in question.

The U.S. Supreme Court has agreed to rule on whether the D.C. Circuit U.S. Court of Appeals was correct when it said the recess appointments were invalid, and the Board therefore lacked a quorum (Noel Canning v. NLRB, D.C. Cir, Jan. 2013). According to the Supreme Court’s online docket, the parties are still filing briefs and oral argument has not yet been scheduled. A decision is expected by June 2014.

Vigilant anticipates that the Board’s composition, three Democrats and two Republicans, will not significantly change its overall direction. This means aggressive enforcement and broad interpretations of employee rights. Because the NLRB has Senate-approved authority, employers and workers will no longer be in limbo; the Board now unquestionably has the power to issue decisions and enforce the National Labor Relations Act (NLRA). Furthermore, the new Board may feel empowered to plow onward with some controversial rules proposed by previous Boards, such as speeding up the timelines for union representation elections and greatly expanding the reporting requirements for labor relations consultants (“persuaders”) and their client employers.

For more questions about the implications of the new NLRB for employers, or to speak with a Vigilant staff representative,contact Vigilant today.

About Vigilant

Vigilant (www.vigilantcounsel.org) helps employers in the Northwest and California navigate complex employment issues. Vigilant offers unlimited consulting with on-staff labor and employment attorneys, strategic HR professionals, and safety experts for a predictable, flat monthly membership fee. Membership includes employment law advice and resources for employee relations and human resources compliance. Vigilant’s professionals act as an extension of a business’s management team, allowing managers to focus on their core business objectives. For more information, visit www.vigilantcounsel.org.

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