Updated 8:15 p.m.
The Senate confirmed a full slate of National Labor Relations Board nominations today, giving the board all five confirmed members for the first time in a decade.
The votes Tuesday afternoon came as part of a deal struck between Democrats and Republicans over executive nominations. It clears some of the legal uncertainty that has hung over the board since President Barack Obama's controversial NLRB recess appointments in January 2012.
By confirming the five nominees before leaving for the congressional summer recess, the Senate also avoids a shutdown of the NLRB in August. Otherwise, the board would have been without a quorum because one of the current member's term would end later that month.
"A critical part of our effort to strengthen the middle class is ensuring that every American who works hard has a chance to succeed," Obama said in a written statement. "That means providing wages people can live on, safe working conditions and real opportunities to get ahead."
Still, legal questions remain. Three federal appeals courts have ruled Obama’s two appointments to the NLRB were unconstitutional because the Senate was not in recess at the time the president made the picks. The U.S. Supreme Court will review a case from the U.S. Court of Appeals for the D.C. Circuit, National Labor Relations Board v. Noel Canning.
The Supreme Court assessment could determine the scope of the president's power under the recess-appointments clause in the Constitution, but also the validity of months of decisions that the NRLB made after the recess appointments. No argument date is set.
"I think it's likely there will be no effect on the pending Supreme Court case," Elizabeth Wydra, chief counsel of the Constitutional Accountability Center, said of the planned Tuesday confirmation votes in the Senate.
The administration, Wydra said, does not want to keep in place the D.C. Circuit's ruling because it doesn't just affect the NLRB. It's possible but unlikely the newly constituted labor board would revisit all of the NLRB’s decisions during the contested time, she said.
The first step toward the five NLRB confirmations—three Democrats, two Republicans—was a vote Tuesday morning to move forward on the nomination of Kent Hirozawa, now the NLRB general counsel, which was approved 64-34. The nomination needed 60 votes to overcome a filibuster.
Hirozawa and Nancy Schiffer, a former AFL-CIO associate general counsel, were replacement nominees forwarded by the White House as part of the agreement on executive nominations reached earlier this month.