For the first time in a decade, the National Labor Relations Board will have a full complement of five members. But several federal court challenges to NLRB decisions and policies will keep the panel under a cloud of uncertainty for the foreseeable future.
The NLRB decides cases that directly affect employers and unions, including those in the construction industry. In recent years, the board has ruled on issues such as union members' rights to display banners criticizing labor practices of contractors working at construction sites.
On July 30, the U.S. Senate confirmed all five of President Obama's NLRB nominees—three Democrats and two Republicans—ending a long stalemate between the White House and Congress over the board's composition. The Senate vote was part of a deal among the White House and top Democrats and Republicans. Under the agreement, Obama withdrew two controversial recess appointees to the board—Democrats Sharon Block and Richard Griffin, whom he had renominated for full terms—in exchange for swift Senate approval of a new slate of nominees.
As of Aug. 5, Schiffer and Hirozawa had been sworn in. The two Republicans are expected to be sworn in the next several weeks, says an NLRB spokesman.
But hundreds of cases the board decided between January 2012 and July 2013 could be in question. The U.S. Supreme Court will hear arguments later this year in a case that deals with the constitutionality of the president's recess appointments of Block and Griffin. Some employer groups argue the board's rulings were overturned in light of three federal appeals-court rulings that invalidated the recess appointments, while the NLRB asserts the board's decisions were legal.
The AFL-CIO also disputes the appeals-court rulings' contention that Block and Griffin were appointed illegally. "It is grossly unfair that Republican intransigence prevented two superb and highly qualified NLRB members, Dick Griffin and Sharon Block, from continuing to serve the American people," AFL-CIO President Richard Trumka said in a statement. But Trumka praised Schiffer's and Hirozawa's qualifications and experience.
Construction industry officials are watching to see whether the NLRB reissues a rule streamlining the precertification process for union representation elections. Unions supported the changes, but construction groups said the regulation would have denied employers sufficient time to prepare for the elections. The U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2012, saying the NLRB lacked a quorum when it issued the rule. But the court also said the board could reinstate the rule if a quorum is present to approve it. When its board is in place, NLRB may choose to revisit its changes, says Geoff Burr, Associated Builders & Contractors vice president of federal affairs. "Our fear is not that they are going to make the rule more business-friendly, but less," Burr says. "Based on pretty much every action of the board under Chairman Pearce," he adds, "we have no reason to believe that there will be much to like" about the rule, if it is reissued.