It has been an eventful few years for the National Labor Relations Board, and that isn’t expected to change anytime soon. 

 While a lot of what has put the Board in the news recently has revolved around the dispute over whether it has been operating with or without a quorum of members at varying periods of time, the U.S. Senate recently ensured there won’t be a dispute about that going forward, as it confirmed President Obama’s five recent nominees to the National Labor Relations Board and brought the agency back to its full capacity.  The Board now consists of Chariman Mark Gaston Pearce (D), Kent Hirozawa (D), Nancy Schiffer (D), Harry Johnson III (R), and Philip Miscimarra (R).

What can we expect now that the Board is operating with a full slate?  Employers should anticipate a Board that may be even more active than before.  The Senate confirmations ensure that the Board is validly appointed and can issue decisions without concern that they’ll be challenged for lack of quorum.  It also may go back and revisit the decisions and issues which have been called into question since Noel Canning was first decided by the D.C. Circuit Court of Appeals. 

In Noel Canning, the Court found that the Board’s recess appointments, which President Obama made on January 4, 2012, were unconstitutional.  As a result of these unconstitutional appointments of Sharon Block and Richard Griffin, the Board lacked the required quorum to rule on Noel Canning’s appeal, and that meant the Board similarly issued determinations in other matters without the required quorum.  The Supreme Court subsequently accepted Noel Canning for review, and it will likely be one of the largest labor and employment cases decided by the Supreme Court during its 2013-2014 term. 

One other thing employers need to be on the lookout for in the aftermath of a fully confirmed NLRB is the possibility that the Board may revisit many of the rulemaking efforts which it initiated prior to Noel Canning.  Expedited union election procedures, of course, loom the largest on that front.  

Visit the Employment Essentials blog often for updates on how the Board’s decisions and rulemaking going forward may affect your workplace.

Lindsay Bouffard focuses her practice in the area of labor and employment law.
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