The U.S. Senate voted July 30 in favor of five presidential nominees to the National Labor Relations Board (NLRB). They included new members Nancy Schiffer (D) and Kent Hirozawa (D), as well as NLRB Chairman Mark Pearce (D), who was reconfirmed. Two Republicans, Harry Johnson III (R) and Philip Miscimarra (R), were also confirmed by voice vote. 

With these confirmations, the board is now fully staffed, meaning it can issue rules and decisions requiring a quorum unencumbered by the legal obstructions that have plagued it over the last two years, including the circuit court rulings in the Noel Canning case that is now headed to the U.S. Supreme Court. In Noel Canning, the validity of an NLRB ruling was challenged because two of the members sitting on the board, Sharon Block and Richard Griffin, were unconstitutionally recess appointed, leaving the board without a quorum to issue the decision.

Block and Griffin were re-nominated in February despite rulings by three appeals courts declaring their appointments invalid (here, here and here) but their nominations were withdrawn July 16 as part of a deal to avert a plan by Senate Majority Leader Harry Reid (D-Nev.) to radically change long-standing rules of the Senate in a way that would have allowed him to place them back on the board.
Schiffer, former associate general counsel to the AFL-CIO, and Hirozawa, former chief counsel for Pearce, were nominated in their place. 

ABC sent a letter to members of the Senate before the confirmation vote opposing the nominations of Schiffer, Hirozawa and Pearce, pointing out Pearce has pursued a radical agenda heavily favoring unions at the expense of employers and employees. In addition, he has presided over some of the most aggressive and egregious policy changes the board has ever attempted.

“To make matters worse, Pearce has overseen these changes for more than a year-and-a-half with an unlawfully appointed quorum—an alarming abuse of power that is currently under review by the U.S. Supreme Court,” ABC wrote.

ABC opposed Hirozawa’s confirmation because as Pearce’s chief counsel for more than three years, he played a direct role in:

• crafting a rulemaking to silence employers during the union election process through rushed and unjust “ambush” style elections; and
• defending a regulation designed to supply employees with biased information about their workplace rights under federal labor law. 

Schiffer especially concerns ABC because her previous statements and longtime affiliations make it clear she supports the Employee Free Choice Act (EFCA), or card check legislation. Despite recent remarks that the implementation of explicit provisions of EFCA would “require congressional action,” her past remarks and actions indicate that she will look for ways to implement some of the overall goals of EFCA—including curbing the rights of employers and neutralizing their voices during organizing campaigns—through board decisions or regulations. 

Based on these issues, ABC is concerned the new nominees will continue to push detrimental policies and initiatives, including a possible second attempt at the ambush elections rule.