Earlier this week, the Senate confirmed the President’s nominations to the National Labor Relations Board (“NLRB”). For the first time in over 10 years, the NLRB now has a full complement of five members. Those members are:
- Mark Gaston Pearce (D);
- Kent Yoshiho Hirozawa (D);
- Nancy Jean Schiffer (D);
- Harry Johnson III (R) and
- Philip Andrew Miscimarra (R).
Because the Board is now back at full strength, its rulings and decisions can no longer be disputed based on the absence of the required three-person quorum or on constitutionality grounds like they were in the U.S. Court of Appeals for the D.C. Circuit’s Noel Canning decision. Also, because the Board consists of three Democrats and two Republicans, the President now has a majority of the Board ready to rule in favor of his employment policies and rules. This does not bode well for union and non-union employers alike. Regarding the latter, the last several years have seen an unprecedented reach by the Board into the business practices of non-union employers. By eviscerating employer policies ranging from social media, to workplace confidentiality, to at-will employment, the Board has aggressively sought to control companies with non-unionized workforces. These companies should be aware that the reenergized and revitalized NLRB will make their employment practices a focus of its new rule-making efforts and decisions.