The deal reached in the U.S. Senate last week goes a long way toward reconstituting a broken
NLRB. Republicans in the Senate agreed to allow an up or down vote on President Obama’s
appointments to the National Labor Relations Board (NLRB) as a trade‐off for Democrats not
scuttling the filibuster rule. Given the majority Democrats hold in the Senate, these nominations
are virtually certain to be confirmed.
Once this confirmation process is over, which may happen before the Senate recesses on August
5 but certainly by no later than the end of this year, the Noel Canning case, presently before the
U.S. Supreme Court, could become an academic exercise.
This well‐publicized case centers around President Obama’s recess appointments of members
Sharon Block and Richard Griffin to the NLRB. The President has now proposed four brand new
members to join Chairman Mark Gaston Pearce, who will be reappointed. The four new
members are: Nancy Schiffer, Associate General Counsel of AFL‐CIO; Ken Hirozawa, Chief
Counsel to NLRB Chairman Pearce; Harry Johnson, a management side labor lawyer; and Phil
Miscimarra, also a management labor lawyer.
Once the confirmations are completed, the imbalance of power will then be restored. Three pro‐
labor Democrats and two pro‐management Republicans will decide the cases nearly 100%
consistent with their career genealogy. Unfortunately, for employers most decisions are issued
by a three‐member panel, and the deck is always stacked by the majority.
Even if the Supremes affirm Noel Canning, the disposition of the hundreds of cases potentially
affected by it will remain the same. The cases will be remanded to the NLRB regional offices,
where they will be decided exactly as they were initially; the new NLRB will rule exactly as its
predecessor did. New Process Steel established the precedent for this when the issue before the
Court was the definition of an NLRB quorum. Business as usual.
What is not business as usual is the fact that after, or possibly concurrent with, rubber‐stamping
the recess Board decisions, the new Board will turn to the President’s activist agenda, e.g., the
Quickie Election, social media constraints, and government published union organizing
promotional posters.
The Department of Labor is expected to implement proposed changes to the Labor
Management Reporting and Disclosure Act (Landrum Griffin), which will dramatically
marginalize employers’ legal representation.
The President’s anti‐business/pro‐union plan will add one more slash to the bloody throat of our
already fragile and lackluster economy.
Who could possibly be surprised?
Best regards,
William R. Adams, Ph.D.
President & CEO
Adams, Nash, Haskell & Sheridan
1‐800‐237‐3942
wadams@anh.wpengine.com