Today President Obama announced three nominees to the National Labor Relations Board: current Board Chairman Mark Gaston Pearce (Democrat), as well as Republicans Harry I. Johnson and Philip A. Miscimarra. Both Johnson and Miscimarra are labor and employment attorneys that exclusively represent management.
If the three nominees are confirmed, the Board’s five seats would be filled, and the Board would have a confirmed quorum of three members, avoiding the complications created by the District of Columbia Circuit’s ruling earlier this year in Noel Canning v. NLRB that the president’s three recess appointments to the Board were unconstitutional. Although the administration has appealed the ruling, the issue likely will not be resolved until at least October of this year, creating uncertainty as to whether any decisions issued by the Board since January 2012 will be enforceable. The confirmation of the three nominees announced today would resolve that issue. Earlier this year, President Obama nominated Democrats Sharon Block and Richard Griffin (two of his recess appointments) to full terms, but the Senate has not yet confirmed them. It is unclear whether or when the Senate will move to confirm the five outstanding nominees.
Despite the President’s nominations, House Republicans plan to move ahead with a vote on a bill introduced last month that would prevent the Board from taking any quorum-requiring action pending the Supreme Court’s review of the Noel Canning case.