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Obama NLRB Picks Seen as Pro-Union as Two Republican Oust

U.S. President Barack Obama
The actions of the National Labor Relations Board have been in question since January, when a federal appeals court in Washington ruled U.S. President Barack Obama’s appointments to the board were unconstitutional because the Senate wasn’t in a recess. Photographer: Jewel Samad/AFP via Getty Images

July 23 (Bloomberg) -- President Barack Obama’s labor board nominees are seen as being at least as pro-union as the two forced out by Republicans last week, giving businesses little reason to expect a change in board decision-making.

The new National Labor Relations Board nominees -- Nancy Schiffer, a former AFL-CIO associate general counsel, and Kent Hirozawa, chief lawyer for the board’s Democratic chairman -- testified today to the Senate’s labor panel after Obama agreed to drop two picks he named in 2012. The swap helped end a stalemate and allowed confirmation of other stalled nominees.

Business can’t breathe easy, because Schiffer, 63, and Hirozawa, 58, have views on labor issues that are similar to the positions of the candidates they would succeed, said Randel Johnson, senior vice president at the U.S. Chamber of Commerce.

“They are both pro-union and they will likely follow the same tack as the people that they replace,” Johnson said yesterday in an interview. “Business faces some tough battles in front of the newly appointed board.”

The actions of the five-member board have been in question since January, when a federal appeals court in Washington ruled Obama’s appointments to the board were unconstitutional because the Senate wasn’t in a recess. More than 100 challenges of board decisions are pending in courts citing the appeals court ruling, board spokesman Gregory King said.

The board hasn’t had five confirmed members since Obama took office.

Senate Confirmations

Senate Majority Leader Harry Reid said today he wants confirmation votes as early as this week. If the committee approves Schiller and Hirozawa tomorrow, the full Senate could vote on all five nominees. In addition to the Democrats, the Senate would vote on Republicans Phil Miscimarra and Harry Johnson, lawyers who represent management in labor disputes, and Chairman Mark Pearce, a Democrat. Miscimarra, Johnson and Pearce were approved by the Senate Health, Education, Labor and Pensions Committee on May 22.

Obama last week withdrew Sharon Block and Richard Griffin, who are serving on the board as Obama’s recess appointees.

Both of the new nominees have long-standing ties to labor.

From 2000 to 2012, Schiffer was general counsel for the AFL-CIO, the federation led by Richard Trumka that represents 57 labor unions with 12 million members. Schiffer also worked for the United Auto Workers Union.

Board Employee

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.

In 2007, Schiller told a House panel that U.S. laws designed to ensure a workers’ right to join a union were failing. The panel was weighing a bill sponsored by the late Democratic Senator Edward Kennedy that would have made it easier for employees to form or join unions. The Employee Free Choice Act wasn’t passed.

Both nominees sought to diffuse Republican concerns that a pro-labor board would seek to create rules absent action by Congress. Provisions of the act “require congressional action,” Schiffer told the panel in response to a question.

Congress, States

Laws that govern agreements between employers and labor unions over issues such as how to collect union dues are “a matter for Congress and the states to decide,” Hirozawa said.

Both nominees today said they hadn’t decided whether the board should ratify decisions issued after the appeals court ruled the two appointees were unconstitutional. They were responding to a question from Senator Johnny Isakson, a Georgia Republican.

The nominees testified today that they have backgrounds that aid their ability to be neutral decision-makers.

Schiffer testified that she represented the interests of both business and labor during time she spent as an NLRB field attorney in Detroit after she graduated from law school. Hirozawa said he co-owned a small business for 20 years and knows the pressures of keeping with tight budgets and dealing directly with employees.

“I have a very clear understanding of the difference between someone who’s an advocate and someone who’s an impartial adjudicator,” Hirozawa said. “I’ve had experience in both roles.”

Obama’s Board

Still, there is sure to be speculation about whether Senate Republicans who demanded two fresh Democratic nominees “went from the frying pan into the fire,” said Gary Chaison, a labor-law professor at Clark University in Worcester, Massachusetts.

“What they do know is that there’s an Obama labor board and there’s always a labor board that’s slanted in one direction or another,” Chaison said.

The appointments of Block and Griffin 18 months ago were ruled invalid in January by the U.S. Court of Appeals in Washington, which said naming both without Senate 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 the case.

Block, Griffin

Like Schiffer, Griffin had ties to labor groups.

He worked at the NLRB from 1981 to 1983 as general counsel. He spent 11 years at the International Union of Operating Engineers, which represents heavy equipment operators and mechanics in the construction industry, and was associate general counsel when he left in 1994. Griffin was a director of the AFL-CIO Lawyers Coordinating Committee until 2012.

Before she joined the board, Block was a deputy Labor secretary for congressional affairs and from 2006 to 2009 was a senior counsel for the Senate Health, Education, Labor & Pensions Committee where she worked for Kennedy.

Obama appointed Block and Griffin after Senate Republicans stalled their confirmation. At the time, Republicans refused to declare a congressional recess, then held brief pro-forma sessions without passing legislation. Obama said the Senate was in recess.

“Republicans found the nominations of the two incumbent Democrats to be repugnant largely because they were there under questionable circumstances,” said Steve Bernstein, a labor attorney in Tampa, Florida, who represents management. “What you seem to find from the business community is the notion that we seem to have replaced two Democratic candidates with predispositions toward organized labor with two others that share the same predispositions.”

To contact the reporters on this story: Laura Litvan in Washington at llitvan@bloomberg.net; Jim Efstathiou Jr. in New York at jefstathiou@bloomberg.net

To contact the editor responsible for this story: Jon Morgan at jmorgan97@bloomberg.net

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