Senate confirmation of five U.S. labor board members yesterday, including two Republicans, will give businesses a dissenting voice on the board for the first time in seven months.
The addition of Phil Miscimarra and Harry Johnson, lawyers who represent management in labor disputes, to the National Labor Relations Board fills two Republican seats vacant since December. The Senate also confirmed Democrats Nancy Schiffer, a former AFL-CIO associate general counsel, and Kent Hirozawa, chief lawyer for board Chairman Mark Gaston Pearce, who also was approved. All five seats will be filled by confirmed members for first time since President Barack Obama took office.
The board has been led by Democrats since 2010, with no Republicans since December as the appointment process stalled amid a stalemate between the administration of President Barack Obama and Congress. With two Republican members, the board will at least consider a business agenda, said Steve Bernstein, a labor attorney in Tampa, Florida, who represents management.
“For the first time in quiet a while, you’ll have the prospect for real dissent,” Bernstein said in an interview. “Dissents are very valuable for the courts on appeal because they have an opportunity to perhaps gauge both sides of an issue more effectively.”
The Senate confirmed the Republicans by voice vote, the two Democrats 54-44 and Pearce 59-38. Lawmakers voted after Obama agreed to drop two Democrats he appointed without Senate confirmation in 2012, substituting Schiffer and Hirozawa. The swap helped end a stalemate and allowed confirmation of stalled nominees to other administration posts. The labor board has lacked five confirmed members since late August 2003.
“We congratulate all of the nominees and look forward to having a functioning NLRB that will fairly and impartially oversee the workplace rights of millions of Americans,” AFL-CIO President Richard Trumka said in a statement.
The board with Sharon Block and Richard Griffin, appointed by Obama without Senate action, has ruled on over 900 cases, Senator Lamar Alexander of Tennessee, the top Republican on the Senate Health, Education, Labor and Pensions Committee, said at a May hearing. Employers have challenged about 120 of those decisions citing the appeal court ruling.
It’s possible though unlikely that the new board will try to ratify past decisions that are not pending in appeals courts, Bernstein said. It would be even more difficult to ratify decisions that are before courts, he said.
Such a move may lead to a scenario “in which the board members attempts to rubber stamp these cases and then the Supreme Court hands down a decision a year from now that takes it in a very different direction,” Bernstein said. “I’m not saying it’s impossible, but I’m saying it’s unlikely.”
Both of the new Democratic members have long-standing ties to labor, according to Randel Johnson, a senior vice president at the U.S. Chamber of Commerce, the nation’s largest business lobbying group. The board’s pro-union tilt will continue, even though the NLRB will now have all five slots filled and two Republicans will be part of the deliberations, he said.
The Republicans “will write some great dissents, but the votes will still remain 3-2 in most cases,” Johnson said.
Some in the Republican party have characterized the labor board under Obama as a rogue agency that has tried to grab power by issuing rules rather than just hearing disputes between labor and management. At a hearing last week, Senator Orrin Hatch, a Utah Republican, said the agency in 2011 issued two “controversial” rules, both of which were invalidated in federal court.
Republican suspicion of the NLRB deepened after a ruling in January by the U.S. Court of Appeals in Washington that Obama’s appointments to the board in 2012 were unconstitutional. More than 100 challenges to board decisions are pending in courts citing the appeals court ruling, board spokesman Gregory King said.
“Few agencies are as politicized as the National Labor Relations Board,” Angela Cornell, director of the Labor Law Clinic at Cornell Law School in Ithaca, New York, said in an interview. “Sometimes I think opposition to nominations is more an issue with the purpose of the underlying statute rather than the individuals involved.”
Fred Feinstein, general counsel to the NLRB from 1994 to 1999, said the board is united on most decisions. Rhetoric that paints the agency as controversial is out of touch with reality, he said.
“I don’t think its a view that’s shared very widely, even within the management community,” Feinstein said in an interview. “You need an umpire, even if you don’t like the particular umpire.”
Obama this month withdrew Obama appointed Block and Griffin 18 months ago after Senate Republicans stalled their confirmation, refused to declare a congressional recess, then held brief pro-forma sessions without passing legislation. Obama said the Senate was in recess.
Their appointments were ruled invalid by a federal court, which said naming both without confirmation was a violation of the Constitution. The administration said the decision applied to a single case and the board would continue to issue decisions. The U.S. Supreme Court has agreed to hear an appeal of the court decision.
Schiffer from 2000 to 2012 was general counsel for the AFL-CIO, the federation that represents 57 labor unions with 12 million members. Schiffer also worked for the United Auto Workers Union.
Hirozawa worked at the labor board from 1984 to 1986 as an attorney in the region that includes New York City. Hirozawa then was a partner in the New York law firm Gladstein, Reif and Meginniss LLP, which “is organized around the principal that workers and their organizations deserve top-quality legal representation just as much as corporations,” according to its website. He returned to the board in 2010 a counsel to Pearce.
“It seems increasingly in recent years, and some would say it was even true under the Bush W. administration, that the pendulum has had a tendency to swing a little more wildly,” Bernstein said. “ We can no longer it seems rely upon battle tested doctrine. That’s something new for all of us.”
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