The National Labor Relations Board now will have something it hasn’t had in a decade: five full-term members. Just one hour ago, the full Senate approved all five nominees to the board following a deal two weeks ago to break a logjam over two recess appointments. And it’s Republicans who appear to have been taken. On July 16, President Obama had named Democrats Nancy Schiffer and Kent Hirozawa to slots vacated by Sharon Block and Richard Griffin, the result of a federal appeals court ruling this past January. Schiffer until last year served as AFL-CIO associate general counsel; Hirozawa is chief counsel to current NLRB Chairman Mark Pearce. These two were on top of three other persons, including Pearce, named by Obama in May. Then, on July 24, a Senate panel approved all five nominees. And just now, Schiffer and Hirozawa each were approved by a 54-44 margin; Pearce by 59-38; and two Republicans by voice vote. That all this occurred with such speed is a testament, most of all, to the wiles of Senate Majority Leader Harry Reid (see photo).
Union Corruption Update has covered this controversy several times, explaining why President Obama’s apparent disregard for constitutional procedure set this whole thing in motion. On January 4, 2012, the president named Sharon Block and Richard Griffin, both Democrats, to the NLRB. The board had been operating short-handed for quite a while. For a 27-month period starting in January 2008, in fact, it had just two members, which was insufficient for a quorum on rulings, as the U.S. Supreme Court’s eventual ruling in New Process Steel v. NLRB would determine in June 2010. With resignations happening as quickly as replacements, the board entered 2012 with a lengthy and mounting backlog of cases – and potentially inoperative. Chaos by now seemed a default setting. The last time the board had operated with five full-term (five-year) members simultaneously, in fact, was in 2003.
President Obama responded on January 4, 2012 by announcing three recess appointments each of whose term would be good for one year beyond the current one – Block, Griffin, and a Republican, Terence Flynn. All were sworn in days later. Unfortunately, there was real doubt as to whether Congress formally was in recess. As such, these might not have been “recess appointments.” Flynn would resign for unrelated reasons last summer. That left the status of Block and Griffin highly cloudy. Things would get cloudier still on January 25 of this year when a District of Columbia federal appeals court, in Noel Canning v. NLRB, unanimously invalidated the appointments. The board now was down to one undisputed member: Chairman Mark Pearce. Literally hundreds and possibly more than 1,200 decisions could be undone.
The National Labor Relations Board continued to issue dozens of rulings per month. President Obama was determined to get Block and Griffin full-term appointments. In February, the month after Noel Canning, Obama renominated the pair. And in April, he named Pearce, whose term expires this August 27, for a full term. For good measure, he also nominated two Republicans, Harry Johnson and Philip Miscimarra. On May 22, the Senate Health, Education, Labor and Pensions (HELP) Committee approved the three nominees, but by a less than filibuster-proof (three-fifths vote) margin. Only six of 10 Republican committee members voted to approve Pearce. And only one – Sen. Lisa Murkowski, R-Alaska – voted to approve Block and Griffin. A GOP filibuster in the Senate appeared certain. Meanwhile, House Republicans, led by Rep. Phil Roe, R-Tenn., in March introduced the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), which would force the board to cease any activity requiring a three-member quorum. The full House approved the bill on April 12 by a 219-209 margin. Sen. Lamar Alexander, R-Tenn., introduced a companion bill (S.850) on April 25. A standoff at this point wasn’t simply a possibility; it was reality.
Senate Majority Leader Harry Reid, D-Nev., had other ideas. Angered over what he saw as Republican obstructionism, on July 11 he filed a motion to invoke cloture (i.e., end debate) on the NLRB nominations and several other stalled cabinet-level appointments including Richard Cordray (Consumer Financial Protection Bureau); Gina McCarthy (Environmental Protection Agency); and Thomas Perez (Department of Labor). What’s more, he threatened to employ a “nuclear option” by which all nominees would be voted on in a single action. To move the process along, Reid also vowed to change longstanding Senate filibuster rules, so that a simple majority of 51 votes, rather than a three-fifths majority, would be needed to invoke cloture. “We’re not interested in cutting a deal to pass one or two or three nominees,” said Reid. “The president deserves to have his team in place, and there are no more major objections to the qualifications of any of these nominees. All we need is six [GOP votes] to invoke cloture. Let them vote against these people.”
Senate Minority Leader Mitch McConnell, R-Ky., wasn’t having any of this. Eliminating the right to a filibuster, which is what Reid effectively would do, he argued, would end the Senate’s role as a deliberative body. “No majority leader wants written on his tombstone that he presided over the end of the Senate,” said McConnell of Reid. “Well, if this majority leader caves in to the fringes and lets this happen, I’m afraid that’s exactly what they’ll write.” Even a key member of Reid’s own party, Sen. Carl Levin, D-Mich., opposed this parliamentary maneuver. McConnell and Reid on Monday, July 15 led a marathon evening session in hopes of breaking the impasse. The effort proved fruitless. But an agreement would come the next day. Reid called off his filibuster rule change and yielded to the GOP demand for substitutes for Block and Griffin. McConnell in turn vowed not to block the replacement nominees and accepted that any window of opportunity for hearings and debate would be narrow. At first glance, the deal looked even. On closer inspection, however, Reid got the upper hand, thanks in part to some help from the White House.
On that day President Obama nominated Nancy Schiffer and Kent Hirozawa for the NLRB. Both had been vetted by the AFL-CIO. As a matter of political custom (though not law), the NLRB at full strength long has operated with three members of one major party and two members of the other. The 3-2 advantage for the Democrats, in other words, was to be expected under a Democratic administration. The Senate Labor Committee held a brief hearing last Tuesday and then conducted a vote, approving Schiffer and Hirozawa along party lines. So who are these two people?
Nancy Jean Schiffer, who previously served with the NLRB’s Detroit regional office, the United Auto Workers legal department, and then as associate general counsel for the AFL-CIO until stepping down last year, is a proven advocate of union interests. On perhaps no issue has this tendency been more apparent than the Employee Free Choice Act (EFCA). This legislation, which has been introduced more than once over the years, would have forced private-sector employers to recognize a union as a collective bargaining agent in lieu of an NLRB-supervised election, if that union during an organizing drive secured signatures from more than 50 percent of affected workers at a given work site indicating a desire to join. This “card check” provision met with strong opposition from Republican senators, enough in 2007 and again in 2009 for a successful filibuster. Supporters of the measure fumed. Nancy Schiffer had been fuming over the opposition well before that. Back in 2004, Schiffer explained her support for EFCA at a hearing before the House Committee on Education and the Workforce: “The Employee Free Choice Act is needed to address a severe violation of human rights: the pervasive denial of America’s workers’ freedom to form unions and bargain collectively.” The workplace, she added, is an “inherently coercive environment.”
Such a view is, and remains, way off the mark. Nobody in either party has sought to deny workers the right to form a union and bargain collectively – these rights have been the core of the National Labor Relations Act for over 75 years. The ulterior motive behind forced card check recognition is not to restore rights that were never taken away in the first place. It is to boost union membership by closing off secret-ballot elections as a means for deciding whether to unionize. And in triggering automatic employer recognition of a union with a simple majority of signed cards, the EFCA legislation would have made card check campaigns, already fraught with high-pressure face-to-face persuasion, even more coercive. The Employee Free Choice Act offered anything but freedom of choice to workers not wishing to join a union. Schiffer merely was echoing the AFL-CIO line. She seems to be backtracking lately, if for strategic purposes. At her confirmation hearing last week, in response to a question from Sen. Orrin Hatch, R-Utah, she asserted that she understood the distinction between advocacy and neutrality, the latter being required of any member of the NLRB. Yet that doesn’t amount to a reversal of her previous position on EFCA or any other labor issue.
The other National Labor Relations Board replacement nominee, Kent Hirozawa, is a labor lawyer who currently serves as chief counsel to NLRB Chairman Mark Gaston Pearce. Previous to that, he was a longtime partner with the New York-based litigation shop of Gladstein, Reif and Meginniss. While his current boss, Pearce, is a Democrat with lengthy experience as a Buffalo, N.Y. union lawyer prior to his tenure at NLRB, he appears less partisan than Schiffer. At his own committee hearing, Hirozawa, a resident of Hastings-on-Hudson, N.Y. pledged to be “not pro-union or pro-management,” but “pro-National Labor Relations Act.” His previous experience as co-owner of a small business, he remarked, would “help me see all sides of workplace disputes that come before the before the board.” Still, having represented hundreds of clients in the world of organized labor, it’s easy to understand why he passed muster with the AFL-CIO.
In addition to extracting a pledge from Mitch McConnell not to fight these nominations, Harry Reid also reportedly secured the job of NLRB general counsel for Richard Griffin. Though no formal announcement has been made yet, the Huffington Post, citing anonymous sources, reported on July 17 that the job is all but reserved for Griffin. The position of general counsel, which requires Senate confirmation, has been occupied on a provisional basis, without formal approval, for the last three years by Acting General Counsel Lafe Solomon.
It’s important to realize that the general counsel isn’t just a lawyer, but also the “sixth man” on the board. “When it comes to unfair labor practices,” explains Patrick Semmens, spokesman for the Springfield, Va.-based National Right to Work Legal Defense Foundation, “the general counsel decides what gets prosecuted (and potentially decided by the board) and what doesn’t. He can effectively nullify entire sections of the law by refusing to issue complaints.” It was Lafe Solomon, in fact, who filed a complaint against Boeing a few years ago to prevent the company from opening a second, nonunion plant in South Carolina to assemble its 787 “Dreamliner” commercial jets, even though no members of the International Association of Machinists and Aerospace Workers at the main plant in Washington State were being laid off. As Union Corruption Update reported at the time, Solomon eventually dropped the suit in December 2011, but on terms that could be construed as less than favorable to Boeing. As Griffin, who was named as a defendant in a federal racketeering suit filed last October in Los Angeles based on events dating back to his years as general counsel for the International Union of Operating Engineers, he may have an ethics problem in a Senate confirmation hearing. An alternative and realizable route would be for Griffin to serve as perennial acting general counsel; i.e., the capacity in which Solomon has been serving since 2010.
Senate action on Schiffer and Hirozawa, meanwhile, was quick. A few hours ago, a Health, Education, Labor and Pensions Committee staff member told NLPC that the full Senate would take up a cloture vote on the five NLRB nominees tonight, with all voting done on a case-by-case basis. By around 6:30 PM, not just the cloture vote but the whole deed was done. The Senate had approved all five nominations. The NLRB shortly will convene for the first time in a decade at full strength – and with a natural pro-union majority. The approval of Republicans Harry Johnson and Philip Miscimarra by voice vote was a mere formality.
The National Labor Relations Board during the Obama years, as it is, has displayed a pattern of support for union goals. In August 2011, for example, the board ruled 3-1 in Specialty Healthcare to substantially broaden the circumstances under which a union could organize “micro-units” at a nonunion employer for bargaining purposes. And last December it ruled in WKYC Inc., also by 3-1, that an employer must continue to collect dues from union members on behalf of the union (“dues checkoff”) even after a collective bargaining agreement expires. Each decision overturned longstanding precedent. With Richard Griffin as general counsel – and his nomination is virtually inevitable – the pro-union tilt at NLRB will become even more pronounced. Say this for Harry Reid: He knows how to deliver for his allies.