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National Labor Relations Board
The National Labor Relations Board (NLRB) is an independent agency of the federal government of the United States with responsibilities for enforcing U.S. labor law in relation to collective bargaining and unfair labor practices. Under the National Labor Relations Act of 1935 it supervises elections for labor union representation and can investigate and remedy unfair labor practices. Unfair labor practices may involve union-related situations or instances of protected concerted activity. The NLRB is governed by a five-person board and a General Counsel, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term. The General Counsel acts as a prosecutor and the Board acts as an appellate quasi-judicial body from decisions of administrative law judges.
National Labor Relations Board
NLRB
Agency overview
FormedJuly 5, 1935; 85 years ago
Preceding agencies
JurisdictionFederal government of the United States
HeadquartersWashington, D.C.
Employees1,628 (2008)
Agency executives
Websitenlrb.gov
The NLRB is headquartered at 1015 Half St. SE, Washington, D.C., with over 30 regional, sub-regional and residential offices throughout the United States.
History
This section needs to be updated. Please update this article to reflect recent events or newly available information. (October 2020)
1933–1935: First collective bargaining organization 'National Labor Board'
The history of the National Labor Relations Board (NLRB) can be traced to enactment of the National Industrial Recovery Act in 1933. Section 7(a) of the act protected collective bargaining rights for unions,[5] but was difficult to enforce. The NLRB was not given monitoring powers.[6]:23 A massive wave of union organizing was punctuated by employer and union violence, general strikes, and recognition strikes.[7][8][9] The National Industrial Recovery Act was administered by the National Recovery Administration (NRA). At the outset, NRA Administrator Hugh S. Johnson believed that Section 7(a) would be self-enforcing, but the tremendous labor unrest proved him wrong. On August 5, 1933, President Franklin D. Roosevelt announced the establishment of the National Labor Board, under the auspices of the NRA, to implement the collective bargaining provisions of Section 7(a).[1]
The National Labor Board (NLB) established a system of 20 regional boards to handle the immense caseload. Each regional board had a representative designated by local labor unions, local employers, and a "public" representative. All were unpaid. The public representative acted as the chair. The regional boards could hold hearings and propose settlements to disputes. Initially, they lacked authority to order representation elections, but this changed after Roosevelt issued additional executive orders on February 1 and February 23, 1934.
The NLB, too, proved ineffective. Congress passed Public Resolution No. 44 on June 19, 1934, which empowered the president to appoint a new labor board with authority to issue subpoenas, hold elections, and mediate labor disputes.[10][11] On June 29, President Roosevelt abolished the NLB and in Executive Order 6763 established a new, three-member National Labor Relations Board.[12][13]
Lloyd K. Garrison was the first Chairman of the National Labor Relations Board (often referred to by scholars the "First NLRB" or "Old NLRB").[2] The "First NLRB" established organizational structures which continue at the NLRB in the 21st century. This includes the regional structure of the board; the use of administrative law judges and regional hearing officers to initially rule on cases; an appeal process to the national board; and the use of expert staff, organized into various divisions, at the national level.[14] Formally, Garrison established the:[15]
Within a year, however, most of the jurisdiction of the "First NLRB" was stripped away. Its decisions in the automobile, newspaper, textile, and steel industries proved so volatile that Roosevelt himself often removed these cases from the board's jurisdiction. Several federal court decisions further limited the board's power. Senator Robert F. Wagner (DNY) subsequently pushed legislation through Congress to give a statutory basis to federal labor policy that survived court scrutiny. On July 5, 1935, a new law—the National Labor Relations Act (NLRA, also known as the Wagner Act)—superseded the NIRA and established a new, long-lasting federal labor policy.[17] The NLRA designated the National Labor Relations Board as the implementing agency.
1935–1939: Constitutionality, communism, and organizational changes
J. Warren Madden (left), Nathan Witt, and Charles Fahy (right) reviewing documents before a congressional hearing on December 13, 1937.
The first Chairman of the "new" NLRB was J. Warren Madden, professor of the University of Pittsburgh School of Law.[18] Madden largely confirmed the previous structure of the "first NLRB" by formally establishing five divisions within the agency:
Benedict Wolf served as first Secretary of the NLRB, Charles H. Fahy the first General Counsel, and David J. Saposs the first Chief Industrial Economist.[20] Wolf resigned in mid-1937, and Nathan Witt, an attorney in the Legal Division, was named Secretary in October.[21]
The Economic Division was a critical one for the NLRB. Cause-and-effect was one of the fundamental assumptions of the National Labor Relations Act, and for the causes of labor unrest to be understood economic analysis was needed.[22] From the start, the Economic Division undertook three important tasks: 1) Gather economic data in support of cases before the courts; 2) Conduct general studies of labor relations to guide the board in formulating decisions and policies; and 3) Research the history of labor relations (the history of written agreements, whether certain issues were historically part of collective bargaining, how unions functioned internally, trends in employer activities, trends in collective bargaining, whether certain employer actions led to labor disputes, etc.) so that the board could educate itself, the courts, Congress, and the public about labor relations.[23] The first function proved critical to the survival of the NLRB. It was the Economic Division's data and analysis, more than then NLRB's legal reasoning, which proved critical in persuading the Supreme Court to sustain the Wagner Act in NLRB v. Jones & Laughlin Steel.[24][25] The Court even cited several Economic Division studies in its decision.[26] In the wake of Jones & Laughlin Steel, many labor relations experts outside the agency concluded that economic analysis was "an accepted fact" essential to the proper functioning of the agency.[27] The Economic Division did, too. It asked Madden to pair an economist with an attorney in every important case,[28] and prepared outline of the economic data needed to support each case in case it went before the courts.[29]
During his time on the NLRB, Madden was often opposed by the American Federation of Labor (AFL), which believed that Madden was using the NLRA and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations (CIO).[30][31] The NLRB and NLRA were also under intense pressure from employers, the press, congressional Republicans, and conservative Democrats.[32][33]
The NLRB's Economic Division proved critical in pushing for a congressional investigation into employer anti-union activities, and ensuring that investigation was a success. The Economic Division was deeply aware of employer use of labor spies, violence, and company unions to thwart union organizing, and quietly pressed for a congressional investigation into these and other tactics. Senator Robert M. La Follette, Jr. took up the suggestion, on June 6, 1936, the Senate Committee on Education and Labor established a Subcommittee Investigating Violations of Free Speech and the Rights of Labor chaired by La Follette.[34] Better known as the "La Follette Committee", the subcommittee held extensive hearings for five years and published numerous reports. The committee uncovered extensive evidence of millions of company dollars used to pay for spies and fifth columnists within unions, exposed the culpability of local law enforcement in acts of violence and murder against union supporters (particularly in the Harlan County War),[35] revealed the wide extent of illegal blacklisting of union members, and exposed the use of armed strikebreakers and widespread stockpiling of tear gas, vomit gas, machine guns, mortars, and armor by corporations to use against strikers.[36] Some of the evidence the committee used was provided by the Economic Division,[37] and the investigation proved critical for a time in defending the agency from business and congressional attack.[34]
The biggest issue the NLRB faced was constitutional. The Justice Department and NLRB legal staff wanted the Supreme Court to rule as quickly as possible on the constitutionality of the NLRA. But the Board and Justice Department also realized that the Court's Lochner era legal philosophy made it unlikely for the Court to uphold the Act. Subsequently, Madden strove to resolve minor cases before they could become court challenges, and worked to delay appeals as long as possible until the best possible case could be brought to the Court.[38] This legal strategy paid off. The Supreme Court upheld the NLRA in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).[39] Afterward, Madden continued to strategically guide the NLRB's legal efforts to strengthen the federal courts' view of the NLRA and the board's actions.[38] Because of the efforts of Madden and NLRB General Counsel Charles H. Fahy, the Supreme Court reviewed only 27 cases between August 1935 and March 1941, even though the board had processed nearly 5,000 cases since its inception. The Supreme Court enforced the NLRB's rulings in 19 cases without modifying them, enforced them with modification in six more, and denied enforcement in two cases. Additionally, the Board won all 30 injunction and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.[40]
AFL opposition to the "Madden Board" grew after decisions in Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002 (1938), enf'd American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (1940) (awarding a longshoremen's unit to the CIO rather than the AFL), and American Can Co., 13 NLRB 1252 (1939) (unit's history of collective bargaining outweighs desire of workers to form craft-only unit).[41]
The AFL began pushing for an investigation into the NLRB, and this investigation led to allegations of communist influence within the agency. In June 1938, the House Un-American Activities Committee (led by Chairman Martin Dies, Jr. [D-TX]) heard testimony from AFL leader John P. Frey, who accused Madden of staffing the NLRB with communists.[42] The allegations were true, in at least one case: Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the Communist Party of the United States.[43][44] These allegations and discoveries significantly damaged the agency's support in Congress and with the public.
A second investigation into the NLRB led to organizational changes at the board. On July 20, 1939, Republicans and conservative Democrats formed a coalition to push through the House of Representatives a resolution establishing a Special Committee to Investigate the National Labor Relations Board (the "Smith Committee"), chaired by conservative, anti-labor Rep. Howard W. Smith (D-VA).[45][46] On March 7, 1940, the Smith Committee proposed legislation to abolish the NLRB, reconstitute it, and radically amend the NLRA.[47][48][49] President Roosevelt opposed the bill, although he conceded that perhaps the Board's membership should be expanded to five from three.[50] The Smith bill won several early tests in the House, which also voted to substantially cut the NLRB's budget.[51] Smith won a vote in the House Rules Committee permitting him to bring his bill to the floor for a vote.[52] In an attempt to defuse the legislative crisis, Madden fired 53 staff and forced another five to resign, and decentralized the NLRB's trial process to give regional directors and field agents more authority.[53] But the House still passed the Smith bill by a vote of 258 to 129 on June 7, 1940.[54] To protect the NLRB, Roosevelt convinced Senator Elbert D. Thomas, Chairman of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.[55][56]
The Smith Committee investigation had a lasting effect on labor law in the U.S., and was the basis for the Taft-Hartley Act of 1947.[57][58] Madden's term on the NLRB came to an end after just four years. On November 15, 1940, President Roosevelt nominated Harry A. Millis to the NLRB and named him Chairman, and nominated Madden to a seat on the U.S. Court of Claims.[59]
1940–1945: The Economics Division and World War II
Another major structural change occurred at the same time that Madden left the NLRB. The Smith committee's anti-communist drive also targeted David J. Saposs, the NLRB Chief Industrial Economist. Saposs had been surreptitiously assessed by members of the Communist Party USA for membership, and rejected as a prospect.[60] But Smith and others attacked Saposs as a communist, and Congress defunded his division and his job on October 11, 1940.[61][62][63] Although the Smith committee's investigation proved critical, the disestablishment of the Economic Division was due to many reasons—both internal and external to the NLRB, and only some of which involved allegations of communist infiltration. As historian James A. Gross observed:.[64]
The Division was eliminated for all kinds of reasons which had nothing to do with the merits and importance of its work: political pressures and maneuverings, jealousy and empire building between and among lawyers and economists inside the Board, opposition to leftist ideologies, a personal attack on the Chief Economist, David Saposs, and a mighty hostility to the administrative process.
The loss of the Economic Division was a major blow to the NLRB. It had a major tactical impact: Economic data helped the NLRB fulfill its adjudicatorial and prosecutorial work in areas such as unfair labor practices (ULPs), representation elections, and in determining remedial actions (such as reinstatement, back pay awards, and fines).[65] Economic data also undermined employer resistance to the agency by linking that opposition to employer ULPs.[66] The loss also left the board dependent on the biased information offered by the parties in dispute before it, leading to poor decision-making and far less success in the courts.[67] It also had a major strategic impact: It left the board unable to determine whether its administration of the law was effective or not.[68] Nor could the board determine whether labor unrest was a serious threat to the economy or not. As labor historian Josiah Bartlett Lambert put it: "Without the Economic Research Division, the NLRB could not undertake empirical studies to determine the actual impact of secondary boycotts, jurisdictional strikes, national emergency strikes, and the like."[69] The Economic Division was critical to a long-range NLRB process to lead to the long-term evolution of industrial labor relations in the U.S., but that goal had to be abandoned.[28][70] Most importantly, however, the evisceration of the Economic Division struck at the fundamental purpose of federal labor law, which was to allow experts to adjudicate labor disputes rather than use a legal process. With this data and analysis, widespread skepticism about the board's expertise quickly spread through Congress and the courts. It also left the board largely unable to engage in rulemaking, forcing it to make labor law on an inefficient, time-consuming case-by-case basis.[71] As of 1981, NLRB was still the only federal agency forbidden to seek economic information about the impact of its activities.[72]
The second Chairman of the NLRB, Harry A. Millis, led the board in a much more moderate direction.[69] Lacking an economic division to give it ammunition to fight with Millis deliberately made the NLRB dependent on Congress and the executive branch for its survival.[73] Millis made a large number of organizational changes. He stripped the office of Secretary of its power, set up an Administrative Division to supervise the 22 regional offices, initiated a study of the Board's administrative procedures, and genuinely delegated power to the regional offices.[74] He removed casehandling and regional office communication from the jurisdiction of the Office of the Secretary and created a Field Division.[75][76] He also adopted procedures requiring the board made its decisions based solely on the trial examiner's report, authorized NLRB review attorneys to review trial examiner report, required decisions to be drafted ahead of time and distributed for review, authorized review attorneys to revise drafts before a final decision was issued, required trial examiners to emphasize findings of fact and to address points of law, and began holding board meetings when there were differences of opinion over decisions.[75]
Millis eliminated the Review Division's decisive role in cases, which had been established under Madden and Witt.[77] Madden and Witt had adopted a highly centralized Board structure so that (generally speaking) only the cases most favorable to the board made it to the courts. The centralized structure meant that only the strongest cases made it to national board, so that the board could apply all its economic and legal powers to crafting the best decision possible. This strategy enabled the NLRB to defend itself very well before the Supreme Court. But Madden and Witt had held on to the centralized strategy too long, and made political enemies in the process. Millis substituted a decentralized process in which the board was less a decision-maker and more a provider of services to the regions.[77] Many of the changes Millis instituted were designed to mimic requirements placed on other agencies by the Administrative Procedure Act.[64]
American entry into World War II on December 8, 1941, significantly changed the NLRB. On January 12, 1942, President Roosevelt created the National War Labor Board (NWLB), which displaced the NLRB as the main focus of federal labor relations for the duration of the war. The NWLB was given the authority to "finally determine" any labor dispute which threatened to interrupt war production, and to stabilize union wages and benefits during the war. Although Roosevelt instructed the NWLB not to intrude on jurisdiction exercised by the NLRB, the War Labor Board refused to honor this request. From 1942 to 1945, Millis tried to secure a jurisdictional agreement with NWLB Chairman George W. Taylor. But these discussions proved fruitless, and Millis broke them off in June 1945. The NWLB also heavily raided the NLRB for staff, significantly hindering NLRB operations.[78]
Additional changes came with the passage of the War Labor Disputes Act (WLDA) on June 25, 1943. Enacted over Roosevelt's veto after 400,000 coal miners, their wages significantly lower due to high wartime inflation, struck for a $2-a-day wage increase,[79][80] the legislation (in part) required the NLRB to issue a ballot outlining all the collective bargaining proposals and counter-proposals, wait 30 days, and then hold a strike vote.[81] The War Labor Disputes Act proved very burdensome. The NLRB processed 2,000 WLDA cases from 1943 to the end of 1945, of which 500 were strike votes. The act's strike vote procedures did little to stop strikes, however, and Millis feared unions were using the referendums to whip up pro-strike feelings among their members. Millis also believed the law's strike vote process permitted more strikes to occur than the NLRB would have allowed under its old procedures. There were so many strike vote filings in the six months after the war ended that NLRB actually shut down its long-distance telephone lines, cancelled all out of town travel, suspended all public hearings, and suspended all other business to accommodate the workload.[82] By early 1945, Millis was in ill health.[83] He resigned from the NLRB on June 7, 1945,[84] and Paul M. Herzog was named his successor.
1947–1965: Taft-Hartley
A major turning point in the history of the NLRB came in 1947 with passage of the Taft-Hartley Act. Disruptions caused by strikes during World War II as well as the huge wave of strikes that followed the end of the war fueled a growing movement in 1946 and 1947 to amend the NLRA to correct what critics saw as a pro-labor tilt in federal law.[85][86] Drafted by the powerful Republican Senator Robert A. Taft and the strongly anti-union Representative Fred A. Hartley, Jr., the Taft-Hartley Act banned jurisdictional strikes, wildcat strikes, political strikes, secondary boycotts, secondary picketing, mass picketing, union campaign donations made from dues money, the closed shop, and unions of supervisors. The act also enumerated new employer rights, defined union-committed ULPs, gave states the right to opt out of federal labor law through right-to-work laws, required unions to give an 80-days' strike notice in all cases, established procedures for the President to end a strike in a national emergency, and required all union officials to sign an anti-Communist oath. Organizationally, the act made the General Counsel a presidential appointee, independent of the board itself, and gave the General Counsel limited powers to seek injunctions without referring to the Justice Department. It also banned the NLRB from engaging in any mediation or conciliation, and formally enshrined in law the ban on hiring personnel to do economic data collection or analysis.[64]
In August 1947, Robert N. Denham became the NRLB's general counsel. He held "conservative views" and wielded "considerable influence" on labor-management relations and interpretations of the newly passed Taft-Hartley Act. In 1950, US President Harry S. Truman fired Denham (New York Times: "left at the behest of the President").[87][88] While NLRB general counsel, Denham received considerable news coverage as a "quasi-Republican." Nominated by US President Harry S. Truman,[89] Denham received unanimous approval by the US Senate Labor Committee. He received "full and independent powers to investigate violations, file complaints and prosecute offenders before the board."[90] In August 1947, he supported an "Anti-Red Affidavit Rule" and so sided with US Senator Robert A. Taft.[91] In October 1947, the NRLB overruled him, which meant that top officers of the American Federation of Labor (AFL) and Congress of Industrial Organizations (CIO) would not have to sign an anti-Communist oath per the Taft-Hartley Act.[92]
Herzog publicly admitted the need for some change in the NLRA, but privately he opposed the proposed Taft-Hartley amendments. He felt the communist oath provisions were unconstitutional, that the amendments would turn the NLRA into a management weapon, that creation of an independent General Counsel would weaken the NLRB, and that the law's dismantling of the agency's economic analysis unit deprived the NLRB of essential expertise.[93] Nonetheless, Congress overrode Truman's veto of the Taft-Hartley Act on June 23, 1947, and the bill became law.[94]
The Taft-Hartley Act fundamentally changed the nature of federal labor law, but it also seriously hindered the NLRB's ability to enforce the law. The loss of the mediation function left the NLRB unable to become involved in labor disputes, a function it had engaged in since its inception as the National Labor Board in 1933. This hindered the agency's efforts to study, analyze, and create bulwarks against bad-faith collective bargaining; reduced its ability to formulate national labor policy in this area; and left the agency making labor law on an ineffective, time-consuming case-by-case basis.[69] The separation of the General Counsel from supervision by the national board also had significant impact on the agency. This separation was enacted against the advice of the Justice Department, contradicted the policy Congress had enacted in the Administrative Procedure Act of 1946, and ignored Millis' extensive internal reforms. The change left the NLRB as the only federal agency unable to coordinate its decision-making and legal activities, and the only agency exempted in this manner under the Administrative Procedure Act. The separation of the General Counsel was not discussed by the committee or by any witnesses during the legislation's mark-up. Indeed, there was no basis for it at all in the public record.[64] It was, in the words of sociologist Robin Stryker, "little-noted" and "unprecedented."[22]
The anti-communist oath provisions generated extensive public debate, and generated disputes before the Supreme Court several times. The Taft-Hartley oath first reached the court in American Communications Ass'n v. Douds, 339U.S. 382 (1950), in which the court held 5-to-1 that the oath did not violate the First Amendment, was not an ex post facto law or bill of attainder in violation of Article One, Section 10, and was not a "test oath" in violation of Article Six. The issue again came before the court in Garner v. Board of Public Works, 341 U.S. 716 (1951), in which the court unanimously held that a municipal loyalty oath was not an ex post facto law or bill of attainder. It came before the court yet a third time in Wieman v. Updegraff, 344 U.S. 183 (1952). This time, the outcome was radically different. The Supreme Court unanimously ruled that state loyalty oath legislation violated the due process clause of the Fourteenth Amendment. In 1965, the Supreme Court held 5-to-4 that the anti-communist oath was a bill of attainder in United States v. Brown, 381 U.S. 437 (1965).[95] The Supreme Court essentially overturned Douds, but did not formally do so.[96]
1966–2007: Expansion of jurisdiction
In 1974, Congress amended the National Labor Relations Act to protect employees of non-profit hospitals and allow the Board to adjudicate their claims. The 1935 Wagner Act had protected non-profit hospital workers, but the Taft-Hartley Act removed those protections in 1947. Congress had expressed concern about the impact of potential labor strikes on patient care, but decided that the proposed legislation was an appropriate compromise.[97][98]
In July 1987, the Board began work on a comprehensive regulation for collective-bargaining units in health care organizations. The Board held 14 days of hearings and considered testimony from 144 witnesses and over 1,800 public comments, and finally issued the rule in April 1989. The rule was challenged in court and ultimately reached the Supreme Court, which unanimously upheld the rule in April 1991.[99]
2007–2014: Lack of quorum and legal challenges
From December 2007 to mid-July 2013, the agency never had all five members, and not once did it operate with three confirmed members, creating a legal controversy.[100] Three members' terms expired in December 2007, leaving the NLRB with just two members—Chairman Wilma B. Liebman and Member Peter Schaumber.[101] President George W. Bush refused to make some nominations to the Board and Senate Democrats refused to confirm those which he did make.[101][102][103]
On December 28, 2007, just before the Board lost its quorum, the four members agreed to delegate their authority to a three-person panel per the National Labor Relations Act.[103][104] Only Liebman and Schaumber remained on the Board, but the Board concluded that the two constituted a quorum of the three-person panel and thus could make decisions on behalf of the Board.[103][104] Liebman and Schaumber informally agreed to decide only those cases which were in their view noncontroversial and on which they could agree, and issued almost 400 decisions between January 2008 and September 2009.​[101]​[102]​[103]​[105]​[​full citation needed][106]
In April 2009, President Obama nominated Craig Becker (Associate General Counsel of the Service Employees International Union), Mark Gaston Pearce (a member on the Industrial Board of Appeals, an agency of the New York State Department of Labor), and Brian Hayes (Republican Labor Policy Director for the Senate Committee on Health, Education, Labor and Pensions) to fill the three empty seats on the NLRB.[101]
The U.S. Courts of Appeals for the First, Second, and Seventh Circuits upheld the two-member NLRB's authority to decide cases, while the U.S. Court of Appeals for the D.C. Circuit rejected its authority.​[101]​[102]​[105]​[​full citation needed][106] In September 2009, the Justice Department asked the U.S. Supreme Court to immediately hear its appeal from the Seventh Circuit's decision in New Process Steel, L.P. v. NLRB and settle the dispute, given the high stakes involved.[102] The Supreme Court granted certiorari in October and agreed to decide the issue.[107]
Becker's nomination appeared to fail on February 8, 2010, after Republican Senators (led by John McCain) threatened to filibuster his nomination.​[103]​[108]​[109] President Obama said he would consider making recess appointments to the NLRB due to the Senate's failure to move on any of the three nominations.[108] On March 27, 2010, Obama recess appointed Becker and Pearce.[110]
On June 17, 2010, the Supreme Court ruled in New Process Steel, L. P. v. NLRB that the two-member Board had no authority to issue decisions, invalidating all rulings made by Liebman and Schaumber.[111]
On June 22, 2010, a voice vote in the Senate confirmed Pearce to a full term, allowing him to serve until August 27, 2013. The same day, the Senate confirmed Republican nominee Brian Hayes of Massachusetts by voice vote. Effective August 28, 2011, Pearce was named Chairman to replace Democrat Wilma Liebman, whose term had expired.[112] Becker's term, as a recess appointee, ended on December 31, 2011.[113] Hayes' term ended on December 16, 2012.[114]
On January 4, 2012, Obama announced recess appointments to three seats on the board: Sharon Block, Terence F. Flynn, and Richard Griffin.[115] The appointments were criticized by Republicans, including the House Speaker John Boehner, as unconstitutional and "a brazen attempt to undercut the role of the Senate to advise and consent the executive branch on appointments."[116] Although made as recess appointments, critics questioned their legality, arguing that Congress had not officially been in recess as pro forma sessions had been held.[117] Former U.S. attorney general Edwin Meese stated that in his opinion, since the appointments were made when the Senate was "demonstrably not in recess," they represented "a constitutional abuse of a high order."[118] On January 12, 2012 the U.S. Justice Department released a memo stating that appointments made during pro forma sessions are supported by the Constitution and precedent.[119]
On January 25, 2013, in Noel Canning v. NLRB, a panel of the D.C. Circuit ruled that President Obama's recess appointments were invalid as they were not made during an intersession recess of the Senate, and the President moved to fill them during the same recess.[120] On May 16, 2013, in National Labor Relations Board v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit became the second federal appellate court to rule that the recess appointments to the NLRB were unconstitutional. In a split decision, it also found that the March 27, 2010 recess appointment of Craig Becker was unconstitutional.[121]
On July 14, 2013, Senate Majority Leader Harry Reid threatened to exercise the "nuclear option" and allow a simple majority (rather than a supermajority) of the Senate to end a filibuster. This threat to end the filibuster's privileged position in the Senate was intended to end Republican filibustering of NLRB nominees.[122] On July 16, 2013, President Obama and Senate Republicans reached an agreement to end the impasse over NLRB appointees. Obama withdrew the pending nominations of Block and Griffin, and submit two new nominees: Nancy Schiffer, associate general counsel at the AFL-CIO, and Kent Hirozawa, chief counsel to NLRB Chairman Mark Gaston Pearce. Republicans agreed not to oppose a fourth nominee, to be submitted in 2014.[123]
On July 30, 2013, the Senate confirmed all five of Obama's nominees for the NLRB: Kent Hirozawa, Harry I. Johnson III, Philip A. Miscimarra, Mark Gaston Pearce and Nancy Schiffer. Johnson and Miscimarra represented the Republican nominees for the board.[124] Pearce was confirmed for a second five-year term.[125]
On June 26, 2014, in National Labor Relations Board v. Noel Canning, the U.S. Supreme Court unanimously ruled that President Obama's recess appointments to the NLRB in 2013 were unconstitutional, affirming the D.C. Circuit's decision in Noel Canning v. NLRB.[126][127]
Nancy Schiffer's term ended on December 15, 2014. She was succeeded by Lauren McFerran on December 16, 2014. Harry I. Johnson III's term ended on August 27, 2015.[128]
Structure
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Plaque on the exterior of 1099 14th Street NW in Washington, D.C., the NLRB headquarters as of 2013.
Union members picketing NLRB rulings outside the agency's Washington, D.C., headquarters in November 2007.
In 1947, the Taft–Hartley Act created a formal administrative distinction between the Board and the General Counsel of the NLRB. In broad terms, the General Counsel is responsible for investigating and prosecuting unfair labor practice claims and for the general supervision of the NLRB field offices.[129] The General Counsel is appointed by the President to a four-year term and independent from the Board; it has limited independence to argue for a change in the law in presenting cases to the Board. The General Counsel oversees four divisions: the Division of Operations Management, the Division of Administration, the Division of Advice, and the Division of Enforcement Litigation.
The Board, on the other hand, is the adjudicative body that decides the unfair labor practice cases brought to it. Once the Board has decided the issue, it is the General Counsel's responsibility to uphold the Board's decision, even if it is contrary to the position it advocated when presenting the case to the Board. The Board is also responsible for the administration of the Act's provisions governing the holding of elections and resolution of jurisdictional disputes. It is a reactive and not a proactive power. The NLRB rarely promulgates administrative rules.[130]
The Board has more than thirty regional offices. The regional offices conduct elections, investigate unfair labor practice charges, and make the initial determination on those charges (whether to dismiss, settle, or issue complaints). The Board has jurisdiction to hold elections and prosecute violations of the Act in Puerto Rico and American Samoa.
Jurisdiction
The Board's jurisdiction is limited to private sector employees and the United States Postal Service; other than Postal Service employees, it has no authority over labor relations disputes involving governmental, railroad and airline employees covered by the Adamson Railway Labor Act, or agricultural employees. On the other hand, in those parts of the private sector its jurisdictional standards are low enough to reach almost all employers whose business has any appreciable impact on interstate commerce.
Processing of charges
Charges are filed by parties against unions or employers with the appropriate regional office. The regional office will investigate the complaint. If a violation is believed to exist, the region will take the case before an Administrative Law Judge who will conduct a hearing. The decision of the Administrative Law Judge may be reviewed by the five member Board. Board decisions are reviewable by United States Courts of Appeals. The Board's decisions are not self-executing: it must seek court enforcement in order to force a recalcitrant party to comply with its orders. (For greater detail on this process see the entry for unfair labor practice.)
General Counsel
Lafe Solomon was named Acting General Counsel on June 21, 2010. His nomination was sent to the Senate on January 5, 2011. Solomon's authority came into question on August 13, 2013, when Judge Benjamin Settle for the United States District Court for the Western District of Washington denied a petition for injunctive relief, ruling that Solomon had not been properly appointed under the Federal Vacancies Reform Act of 1998 (FVRA).[131] Although other district courts had enforced Solomon's requests, Settle's decision called into question all of Solomon's activity since June 21, 2010, focusing on subsections (a)(1) and (2) of the FVRA; some pundits claimed that Solomon's appointment was allowed under subsection (a)(3).[132] President Obama withdrew Solomon's nomination.[133]
On July 31, 2013, President Obama nominated former NLRB nominee Richard Griffin as General Counsel, calling Griffin "a kind of prosecutor at the board" who would fill "one of the most critical roles at the agency."[134] The Senate approved Griffin's nomination on October 29, 2013, by a vote of 55 to 44.[135]
Peter B. Robb was nominated by President Donald J. Trump in September 2017 and was confirmed by the U.S. Senate on November 8, 2017. He was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017 for a four-year term. Immediately following President Joe Biden's inauguration on January 20, 2021, the White House sent a letter to Robb requesting his resignation. Just hours later, Robb refused, replying that he "respectfully decline[s] to resign" because the "removal of an incumbent General Counsel ... is unprecedented" and "would set an unfortunate precedent for the labor relations of this country."[136] He was fired that evening.[137] In response, Representative Virginia Foxx (R–NC) said that the "outrageous ultimatum ... is unacceptable and flouts the National Labor Relations Act, while Representative Andy Levin (D–MI) called Robb a "toxic figure in the NLRB" who "worked to undermine its mission."[137] Supporters of the firing argued that it was legal, citing the recent Supreme Court decision in Seila Law LLC v. Consumer Financial Protection Bureau (2020).[137] The general counsel had never been fired previously.[138]
On January 25, 2021, President Biden appointed Peter Sung Ohr, a veteran employee of the NLRB, to serve as Acting General Counsel.[139][140] On February 17, 2021, Biden nominated Jennifer Abruzzo, a former Acting General Counsel of the NLRB, to serve as the new General Counsel.[141]
Board members
Current board members
Each seat is named for the first board member to hold the position. The Smith Seat was originally held by Edwin S. Smith (D), the Madden Seat was originally held by J. Warren Madden (D), the Carmody Seat was originally held by John M. Carmody (D), the Murdock Seat was originally held by Abe Murdock (D), and the Gray Seat was originally held by J. Copeland Gray (R).[142]
Seat[142]MemberEntered officeTerm expiresPartyOriginally appointed by
Carmody
(Term expires in years ending 8 and 3)
VacantAugust 27, 2023
Gray
(Term expires in years ending 9 and 4)
Lauren McFerran
Chair
July 29, 2020[143]December 16, 2024DemocraticBarack Obama
Smith
(Term expires in years ending 6 and 1)
William EmanuelSeptember 28, 2017August 27, 2021RepublicanDonald Trump
Murdock
(Term expires in years ending 7 and 2)
John F. RingApril 16, 2018December 16, 2022RepublicanDonald Trump
Madden
(Term expires in years ending 5 and 0)
Marvin KaplanAugust 10, 2017[144]August 27, 2025RepublicanDonald Trump
Recent appointments
Donald Trump’s appointments
On January 25, 2017, President Donald Trump appointed Philip Miscimarra the acting Chairman of the NLRB.[145] Miscimarra's term expired on December 16, 2017. Marvin Kaplan succeeded him as NLRB Chairman on December 21, 2017.[146][147] Kaplan was replaced as Chairman in April 2018 by John F. Ring, who currently holds that position.[148]
President Trump announced on March 2, 2020 that he would renominate Republican Marvin Kaplan and Democrat Lauren McGarity McFerran to seats on the board.[149] On July 29, 2020, Kaplan was confirmed by the Senate by a vote of 52–46 to a second term of five years expiring August 27, 2025, and McFerran was confirmed by the Senate by a vote of 53–42 to a second term of five years expiring December 16, 2024.
Joe Biden's appointments
On January 20, 2021, President Joe Biden appointed current Democratic member Lauren McFerran as chair of the NLRB.[138]
Past board members[150]
NameTerm StartTerm End
Edwin S. SmithAugust 27, 1935August 27, 1941
J. Warren MaddenAugust 27, 1935August 26, 1940
John M. CarmodyAugust 27, 1935August 31, 1936
Donald Wakefield SmithSeptember 23, 1936May 31, 1939
William M. LeisersonJune 1, 1939February 23, 1943
Harry A. MillisNovember 26, 1940July 4, 1945
Gerard D. ReillyOctober 11, 1941August 26, 1946
John M. HoustonMarch 15, 1943August 27, 1953
Paul M. HerzogJuly 5, 1945June 30, 1953
James J. ReynoldsAugust 28, 1946December 31, 1951
Abe MurdockAugust 1, 1947December 16, 1957
J. Copeland GrayAugust 1, 1947December 16, 1949
Paul L. StylesFebruary 27, 1950August 31, 1953
Ivar H. PetersonMarch 21, 1952August 27, 1956
Guy Otto FarmerJuly 13, 1953August 27, 1963
Philip Ray RodgersAugust 28, 1953August 27, 1963
Albert C. BeesonMarch 2, 1954December 16, 1954
Boyd S. LeedomApril 4, 1955December 16, 1954
Stephen S. BeanDecember 1, 1955August 27, 1960
Joseph Alton JenkinsMarch 28, 1957March 27, 1961
John H. FanningDecember 20, 1957December 16, 1982
Arthur A. KimballSeptember 13, 1960March 6, 1961
Frank W. McCullochMarch 7, 1961August 27, 1970
Gerald A. BrownApril 14, 1961August 27, 1971
Howard Jenkins Jr.August 28, 1963August 27, 1983
Sam ZaogriaApril 20, 1965December 16, 1969
Edward B. MillerJune 3, 1970December 16, 1974
Ralph E. KennedyDecember 14, 1970July 31, 1975
John A. PenelloFebruary 22, 1972January 14, 1981
Betty S. MurphyFebruary 18, 1975December 14, 1979
Peter D. WaltherNovember 26, 1957August 31, 1977
John C. Truesdale[151]October 25, 1977August 27, 1980
October 23, 1980January 26, 1981
January 24, 1994March 3, 1994
December 24, 1994January 3, 1996
December 4, 1998October 1, 2001
Don A. ZimmermanSeptember 17, 1980December 16, 1984
Robert P. HunterAugust 14, 1981August 27, 1985
John R. Van de WaterAugust 18, 1981December 16, 1982
John C. MillerDecember 23, 1982March 7, 1983
Donald L. DotsonMarch 7, 1983December 16, 1987
Patricia Diaz DennisMay 5, 1983June 24, 1986
Wilford W. JohnsonMay 28, 1985June 15, 1989
Marshall B. BabsonJuly 1, 1985July 31, 1988
James M. StephensOctober 16, 1985August 27, 1995
Mary M. CarcraftNovember 7, 1986August 27, 1991
John E. Higgins Jr.August 29, 1988November 22, 1989
September 3, 1996November 13, 1997
Dennis M. DevaneyNovember 22, 1988December 16, 1994
Clifford R. OviattDecember 14, 1989May 28, 1993
John N. RaudabaughAugust 27, 1990November 26, 1993
William B. Gould IVMarch 7, 1994August 27, 1998
Margaret A. BrowningMarch 9, 1994February 28, 1997
Charles I. CohenMarch 18, 1994August 27, 1996
Sarah M. FoxFebruary 2, 1996December 15, 2020
Joseph Robert Brame IIINovember 17, 1997August 27, 2000
Peter J. HurtgenNovember 14, 1997August 27, 2001
August 31, 2001August 1, 2002
Wilma B. LiebmanNovember 14, 1997August 27, 2011
Dennis P. WalshDecember 30, 2000December 20, 2001
December 17, 2002December 16, 2004
January 17, 2006December 31, 2007
Michael J. BartlettJanuary 22, 2002November 22, 2002
William B. CowenJanuary 22, 2002November 22, 2002
Alexander AcostaDecember 17, 2002August 21, 2003
Robert J. BattistaDecember 17, 2002December 16, 2007
Peter C. SchaumberDecember 17, 2002August 27, 2005
September 1, 2005August 27, 2010
Ronald E. MeisburgJanuary 12, 2004December 8, 2004
Peter KirsanowJanuary 4, 2006December 31, 2007
Craig BeckerApril 5, 2010January 3, 2012
Mark Gaston PearceApril 7, 2010August 27, 2018
Brian HayesJune 29, 2010December 16, 2012
Sharon BlockJanuary 9, 2012August 2, 2013
Terence F. FlynnJanuary 9, 2012July 24, 2012
Richard F. Griffin Jr.January 9, 2012August 2, 2013
Nancy J. SchifferAugust 2, 2013December 15, 2014
Kent Y. HirozawaAugust 5, 2013August 27, 2016
Philip A. MiscimarraAugust 7, 2013December 16, 2017
Harry I. Johnson IIIAugust 12, 2013August 27, 2015
Lauren McFerranDecember 16, 2014December 16, 2019
Chairpersons
J. Warren Madden, the first Chairman of the NLRB, working at his desk at the NRLB in Washington, D.C., in June 1937.
The President designates one member of the board to serve as chairman. Chairmen serve at the pleasure of the President, and the President can designate another member as chairman at any time.[152][153] The Chairman's powers are limited. The Chairman, like other Board Members, has a chief legal counsel and a legal staff.[154] Except for certain limited and purely administrative functions (such as being the recipient of appeals or Freedom of Information Act requests),[155] one former NLRB Chairman has said "the chairmanship—given the authority of the general counsel to appoint regional staff and recommend regional directors to the entire Board (not just to the chairman)—is more like a bully pulpit than a position of authority."[156] The Chairman does, however, work with the Office of Management and Budget to craft the NLRB's budget proposal to Congress, may propose to the Board changes to NLRB procedures and guidance manuals, and may propose that the Board engage in rulemaking.[157]
From 1935 to 1953, it was customary for the Chairman (like all Members of the NLRB) to be a neutral career government employee rather than an advocate of either labor unions or management.[158] President Dwight Eisenhower's appointment of Guy Farmer in 1953 broke this two-decade-old tradition (Farmer was a management attorney).[159][160] Presidents John F. Kennedy and Lyndon B. Johnson both returned to the tradition of appointing neutral third parties to the position of Board Chairman, but President Richard M. Nixon appointed a management-side attorney.[159] The Board as a whole was under intense Congressional scrutiny from its inception until the 1960s.[161] This ended in the 1960s and 1970s, but resumed in the 1980s.[161] Subsequent appointments to the position of Chairman have been heavily partisan and from either a strongly pro-union or pro-management position.[162]
Chairpersons[163]
NamePartyTerm StartTerm EndNotes
J. Warren MaddenDemocraticAugust 27, 1935August 26, 1940 
Harry A. MillisDemocraticNovember 26, 1940July 4, 1945 
Paul M. HerzogDemocraticJuly 5, 1945June 30, 1953 
Guy FarmerRepublicanJuly 13, 1953August 27, 1955 
Boyd LeedomRepublicanNovember 2, 1955March 6, 1961[164]
Frank W. McCullochDemocraticMarch 7, 1961June 2, 1970 
Edward B. MillerRepublicanJune 3, 1970December 16, 1974 
John H. FanningRepublicanFebruary 19, 1974February 19, 1975
April 14, 1977August 14, 1981[165]
Betty S. MurphyDemocraticFebruary 18, 1975April 13, 1977[166]
John R. Van de WaterRepublicanAugust 18, 1981December 16, 1982
John C. MillerRepublicanDecember 27, 1982March 7, 1983[167]
Donald L. DotsonRepublicanMarch 7, 1983December 16, 1987 
James M. StephensRepublicanDecember 17, 1987March 6, 1994[168]
William B. Gould IVDemocraticMarch 7, 1994August 27, 1998[169]
John C. TruesdaleDemocraticDecember 4, 1998May 14, 2001[170]
Peter J. HurtgenRepublicanMay 16, 2001August 1, 2002[171]
Robert J. BattistaRepublicanDecember 17, 2002December 16, 2007 
Peter B. SchaumberRepublicanMarch 19, 2008January 19, 2009[172]
Wilma B. LiebmanDemocraticJanuary 20, 2009August 27, 2011[173]
Mark G. PearceDemocraticAugust 28, 2011January 22, 2017[174][175]
Philip A. MiscimarraRepublicanApril 24, 2017December 16, 2017[176]
Marvin KaplanRepublicanDecember 21, 2017April 15, 2018
John F. RingRepublicanApril 16, 2018January 20, 2021
Lauren McFerranDemocraticJanuary 20, 2021present
See also
Organized labour portal
Notes
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  2. ^ a b Vittoz 1987, p. 145.
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  5. ^ Morris 2005, p. 8.
  6. ^ Van Loo, Rory (2018-08-01). "Regulatory Monitors: Policing Firms in the Compliance Era". Faculty Scholarship. Archived from the original on 2020-06-04. Retrieved 2020-10-10.
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  8. ^ Bernstein & Piven 1969, pp. 217–18.
  9. ^ Rayback, pp. 328–29.
  10. ^ Morris 2005, p. 47.
  11. ^ Schlesinger 2003, p. 151.
  12. ^ Vittoz 1987, p. 144.
  13. ^ Gross 1974, pp. 71–72.
  14. ^ Gross 1974, p. 156.
  15. ^ Gross 1974, pp. 79–80.
  16. ^ The "first NLRB" was barred from initiating or responding to lawsuits itself. It could only ask the Department of Justice to act on its behalf.
  17. ^ Schlesinger 2003, pp. 400–06.
  18. ^ "President Names New Labor Board." New York Times. August 24, 1935.
  19. ^ Gross 1974, p. 219.
  20. ^ Gross 1974, pp. 79, 170, 174–75.
  21. ^ Gross 1974, pp. 111, 143.
  22. ^ a b Stryker 1989, p. 344.
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  24. ^ Gross 1974, pp. 176–79, 191.
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  147. ^ National Labor Relations Board. "Marvin E. Kaplan". Archived from the original on December 9, 2018. Retrieved December 7, 2018.
  148. ^ "President Donald J. Trump Announces Intent to Nominate Personnel to Key Administration Posts". whitehouse.gov. January 12, 2018. Archived from the original on January 20, 2021. Retrieved January 16, 2018 – via National Archives.
    This article incorporates text from this source, which is in the public domain.
  149. ^ "Trump nominates two to National Labor Relations Board". www.washingtontimes.com​. Archived from the original on 4 August 2020. Retrieved 29 July 2020.
  150. ^ "Archived copy". Archived from the original on 2020-11-28. Retrieved 2020-11-25.
  151. ^ When a member has served multiple terms, the terms are shown together by default for clarity.
  152. ^ "Who's Who at the National Labor Relations Board". www.kmm.com. Archived from the original on 2020-09-18. Retrieved 2020-12-07.
  153. ^ Strauss, Peter. "The Place of Agencies in Government: Separation of Powers and the Fourth Branch." Columbia Law Review. 84:573 (1984).
  154. ^ "National Labor Relations Board." Archived May 27, 2010, at the Wayback Machine 20 F.R. 2175. Accessed February 7, 2010.
  155. ^ Gould, Labored Relations: Law, Politics, and the NLRB—A Memoir, 2001, p. 120.
  156. ^ Gould, Labored Relations: Law, Politics, and the NLRB—A Memoir, 2001, p. 52.
  157. ^ Gould IV, William B. Labored Relations: Law, Politics, and the NLRB—A Memoir. Cambridge, Mass.: MIT Press, 2001. ISBN 0-262-57155-2
  158. ^ Gross, James A. The Making of the National Labor Relations Board: A Study in Economics, Politics, and the Law. Albany, N.Y.: SUNY Press, 1974. ISBN 0-87395-270-7; Bernstein, Irving. The Turbulent Years: A History of the American Worker 1933–41. Paperback ed. Boston: Houghton-Mifflin Co., 1970. ISBN 0-395-11778-X (Originally published 1969.)
  159. ^ a b Flynn, Joan. "A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935–2000." Ohio State Law Journal. 61:1361 (2000).
  160. ^ Five of President Eisenhower's appointees to the Board during his administration were neutral career bureaucrats, while two were management-side attorneys. Eisenhower also broke the tradition of appointing neutral parties to the position of General Counsel of the NLRB, appointing three management-side attorneys and one career government attorney to the position. See: Gross, James A. Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947–1994. Philadelphia, Pa.: Temple University Press, 2003. ISBN 1-59213-225-1; Flynn, "A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935–2000," Ohio State Law Journal, 2000.
  161. ^ a b Bodah, Matthew M. "Congress and the National Labor Relations Board: A Review of the Recent Past." Journal of Labor Research. 22:4 (December 2001).
  162. ^ Gould IV, William B. Labored Relations: Law, Politics, and the NLRB—A Memoir. Cambridge, Mass.: MIT Press, 2001. ISBN 0-262-57155-2
  163. ^ "Board Members Since 1935 | National Labor Relations Board". www.nlrb.gov. Archived from the original on 2020-11-28. Retrieved 2020-12-07.
  164. ^ Boyd S. Leedom also served as a Member of the NLRB from April 4, 1955, to December 16, 1964.
  165. ^ John H. Fanning also served as a Member of the NLRB from December 20, 1957, to December 16, 1982.
  166. ^ Betty S. Murphy also served as a Member of the NLRB from February 18, 1975, to December 14, 1979.
  167. ^ John C. Miller also served as a Member of the NLRB from December 23, 1982, to March 7, 1983.
  168. ^ James M. Stephens also served as a Member of the NLRB from October 16, 1985, to August 27, 1995.
  169. ^ William B. Gould IV also served as a Member of the NLRB from March 7, 1994, to August 27, 1998.
  170. ^ John C. Truesdale also served as a Member of the NLRB on several occasions: October 25, 1977, to August 27, 1980; October 23, 1980, to January 26, 1981; January 24, 1994, to March 3, 1994; December 23, 1994, to January 3, 1996; and December 4, 1998, to October 1, 2001. Truesdale served as Chairman under a recess appointment from December 4, 1998, to November 19, 1999. He was confirmed by the U.S. Senate on November 19, 1999, and resigned as Chairman on May 14, 2001. He continued to serve as a Member of the NLRB until October 1, 2001.
  171. ^ Peter J. Hurtgen also served as a Member of the NLRB from November 14, 1997, to August 1, 2002. Hurtgen served as Chairman under a recess appointment from May 15, 2001.
  172. ^ Peter C. Schaumber also served as a Member of the NLRB from December 17, 2002 to August 27, 2005, and again from September 1, 2005 to August 27, 2010.
  173. ^ Wilma B. Liebman also served as a Member of the NLRB from November 14, 1997, to January 19, 2009.
  174. ^ Greenhouse, Steven (August 29, 2011). "Labor Board's Exiting Leader Responds to Critics". The New York Times. Retrieved September 4, 2016; Hoover, Kent (July 31, 2013). "Full speed ahead for NLRB; Senate confirms Obama's five nominees". Phoenix Business Journal.
  175. ^ Mark Gaston Pearce served a recess appointment as a Member of the NLRB from April 7, 2010, to June 21, 2010. He was confirmed by the Senate to a five-year term on June 22, 2010. He was confirmed to a second five-year term on July 30, 2013, for a second term to expire on August 27, 2018.
  176. ^ Acting from January 23, 2017 to April 23, 2017
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