President Withdraws Nominations Of NLRB Members That Are The Subject Of The Noel Canning Case, But Impact Of Withdrawals Uncertain


Last week, as part of an agreement between Senate Democrats and Republicans to avoid the "nuclear option" of eliminating the filibuster for executive branch nominations, President Obama agreed to withdraw the pending nominations of Sharon Block and Richard Griffin to the National Labor Relations Board (NLRB), and replace them with two other Democrats: Kent Hirozawa and Nancy Schiffer. Hirozawa is currently the chief counsel to NLRB Chairman Mark Gaston Pearce, and Schiffer is a former AFL-CIO associate general counsel. Block and Griffin were previously appointed to the NLRB by President Obama during a Senate recess, but their appointments were subsequently deemed unconstitutional by the D.C. Circuit Court of Appeals in the Noel Canning case.  At present, the political compromise that led to the withdrawal of the Block and Griffin nominations does not render the Noel Canning decision moot, as there remains the issue of whether or not  the hundreds of decisions involving them made during their recess appointments will be sustained or invalidated.  However, to the extent that President Obama's nominations of Hirozawa and Schiffer are successful (as is the re-appointment of Chairman Pearce), it is potentially possible that they could seek to, retroactively, validate the decisions at issue in Noel Canning as well as decisions made by other recess-appointed NLRB Board Members whose appointments are also the subject of legal dispute. Therefore, while Noel Canning and its companion cases remain viable, the recent political compromises have injected an element of uncertainty into the process.  We will keep you apprised as this dynamic situation continues to unfolds. 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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