The Senate has avoided a "nuclear" confrontation over several pending appointments, including the appointments of all five members of the NLRB. As readers of this blog know, President Obama’s appointments to the NLRB generated significant controversy because they included two individuals, Members Griffin and Block, whose recess appointments in 2012 have been held to be unconstitutional by various courts of appeal. In fact, only yesterday yet another court of appeals came to the same conclusion (pdf).
Republicans were holding up all of the President’s appointments because they objected to the appointments of Members Griffin and Block, asserting that their continuing service on the NLRB in light of the court rulings was improper. Had this dispute continued, the NLRB would have been left without a quorum of members next month, and thus unable to decide cases or issue new regulations. Unions had called on Senate Democrats to "go nuclear" by changing Senate rules to deprive the minority of the use of the filibuster to block the NLRB appointments (among others).
Yesterday’s compromise avoids this outcome, and appears to clear the way for the confirmation of President Obama’s NLRB appointments. The President will withdraw the nominations of Members Griffin and Block. In their place, it is anticipated that the President will nominate Nancy Schiffer and Kent Hirozawa. Ms. Schiffer retired last year as an associate general counsel at the AFL-CIO. Mr. Hirozawa is currently the chief counsel to NLRB Chairman Mark Pearce.
For the labor professional, these developments would appear to signal the return of stability to the NLRB. Confirmation of these nominations will result in an NLRB with a majority of members from the President’s party, which is how membership on that panel is traditionally divided. For employers, while confirmation will result in less uncertainty, it will probably not result in more favorable rulings from the NLRB. Confirmation of the President’s nominations would, however, install the first Republican members to the NLRB in almost a year.