Obama's picks for NLRB confirmed

By Jessica M. Karmasek | Jul 31, 2013

WASHINGTON (Legal Newsline) -- After months-long fighting, President Barack Obama's nominees for the National Labor Relations Board were confirmed Tuesday.

Confirmed on voice vote were Philip Miscimarra and Harry Johnson III, who Obama nominated in April. Miscimarra is a partner in the labor and employment group of Morgan Lewis & Bockius LLP. Johnson is a partner with Arent Fox LLP.

In a roll call vote, Mark Pearce was confirmed for a second term on the board, 59-38. Pearce currently serves as chairman of the board, a position he has held since 2011. He has served as a member since March 2010.

Also confirmed in a roll call vote were Kent Hirozawa and Nancy Schiffer, in place of previous board members and nominees Sharon Block and Richard Griffin.

Hirozawa, chief counsel to Pearce, was confirmed 54-44. Schiffer, who has worked for the AFL-CIO and the United Auto Workers, also was confirmed 54-44.

Earlier this month, Obama withdrew Block and Griffin's nominations as part of a deal to avoid the so-called "nuclear option" in the Senate and preserve the use of the filibuster in the chamber.

Democrats threatened to change the Senate rules so that it would only take 51 votes to confirm executive branch nominees, including the NLRB nominees.

Without confirmation of at least one of the nominees, the board would have ceased to function in August. Pearce's five-year term expires at the end of next month, which would have left the board with just two members -- short of the legally-required three.

Still, some questions about the board's legitimacy remain.

Obama's recess appointments to the board last year are now under U.S. Supreme Court review, prompting questions about the board's decisions made since the appointments.

In January, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the President's "intrasession appointment" of three new members to the board was an unconstitutional abuse of power because he could not make those appointments without U.S. Senate confirmation because the Senate was not in recess.

Sen. Lamar Alexander, R-Tenn., who vehemently opposed Block and Griffin's nominations, said ahead of the Senate votes Tuesday that he planned to vote against Hirozawa and Schiffer.

"Both of them have excellent legal backgrounds, but the problem is that I'm not persuaded -- and I hope I will be proven wrong -- that they're able to transfer their positions of advocacy to positions of judge, that they can be impartial when employers come before them," the ranking member on the U.S. Senate labor committee said in a statement.

The U.S. Chamber of Commerce also has expressed its concern over Hirozawa and Schiffer's nominations.

The Chamber's Institute for Legal Reform owns Legal Newsline.

Meanwhile, Alliance for Justice President Nan Aron said she was pleased with Tuesday's votes.

"With these votes the Senate restores the National Labor Relations Board to full functioning. That will ensure fundamental protections not just for union members but for all American workers," she said in a statement.

"For 75 years, the National Labor Relations Act has been the rulebook for relations between businesses and their workers. But a rulebook is useless without an umpire. The members of the NLRB are the umpires. Soon they'll be back on the field."

But Aron said confirmation of the NLRB nominees is not enough.

"Obstruction of judicial nominees is every bit as debilitating as obstruction of executive branch nominees," she said. "The same willingness to allow, at long last, yes-or-no votes on the NLRB nominees must extend to the nominees for the D.C. Circuit and other judgeships."

Alliance for Justice is a national association of more than 100 organizations, representing a broad array of groups committed to "progressive values and the creation of an equitable, just and free society."

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

More News

The Record Network