Labor Board Seen at Full Strength After U.S. Senate Deal

The U.S. labor board may return to full strength next month after Senate leaders struck a deal to jettison two nominees opposed by Republicans and vote on replacements.

Senate Republicans agreed yesterday to speed confirmation of the National Labor Relations Board nominees in return for President Barack Obama dropping the Democrats he appointed in 2012 when the Senate wasn’t meeting. Obama nominated Nancy Schiffer, former AFL-CIO associate general counsel, and Kent Hirozawa, chief lawyer for the board’s chairman, and withdrew the names of Sharon Block and Richard Griffin.

Hearings on Schiffer and Hirozawa are planned July 23, Senate Majority Leader Harry Reid said. The Senate will move to confirm all the NLRB nominees by month’s end, he said. The board, its legitimacy clouded after a court said the appointees were invalid, hasn’t had five confirmed members since Obama took office.

“It’s a mess that absolutely has to be cleaned up,” Gary Chaison, a labor-law professor at Clark University in Worcester, Massachusetts, said in an interview. “The first order of business would be to take a look at everything it’s decided over the last year and to decide whether it wants to continue with that.”

Court Decision

The nominations of Block and Griffin 18 months ago were ruled invalid in January by the U.S. Court of Appeals in Washington, which said Obama violated the Constitution by appointing both without Senate confirmation. The administration said the ruling on their legitimacy applied to a single case reviewed by the court, and the board has continued to issue decisions. The case has been appealed to the U.S. Supreme Court.

As of May, about 120 challenges of board decisions were pending in courts citing the appeals court ruling, board spokesman Gregory King said. The Washington-based U.S. Chamber of Commerce created a website to provide information for employers seeking to challenge decisions involving board members whose eligibility was questioned by the court.

The decision “gave employers who were trying to resist the efforts of workers to form unions a chance to use their most effective tactic, which is to delay,” Michael Wasser, a senior policy analyst with Jobs With Justice-American Rights at Work, a group that advocates for worker rights, said in an interview. The most important thing is we’re going to have a functioning NLRB.’’

Rules Change

The deal on the labor board was reached after Democrats threatened a change in Senate rules to prevent the minority party from blocking executive appointments to federal agencies.

From 2000 to 2012, Schiffer represented the AFL-CIO, the umbrella federation of 57 unions led by Richard Trumka that represents 12 million workers. Prior to that Schiffer worked for the United Auto Workers Union.

In 2007, she spoke before a House panel in support of a bill sponsored by former Senator Edward Kennedy that would have made it easier for employees to form or join unions. The measure was not passed.

“Its’ unseemly that you come directly from being Richard Trumka’s associate counsel to the board,” Fred Wszolek, spokesman for the Workforce Fairness Institute, a business owners group, said in an interview. “It just sends a message to employers: ‘Don’t bother.’”

‘Labor Ideologues’

Prior to becoming chief counsel to board chairman Mark Gaston Pearce, Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP. The firm “is organized around the principal that workers and their organizations deserve top-quality legal representation just as much as corporations,” according to its website.

“They seem to be fairly staunch labor ideologues,” Wszolek said.

Obama’s previous NLRB nominees -- Block, a former U.S. Labor Department official, and Griffin, former general counsel for the International Union of Operating Engineers -- also drew criticism from a business group.

In May, a Senate committee approved Block, Griffin, Pearce and Republicans Phil Miscimarra and Harry Johnson, lawyers who represent management in labor disputes.

The board, now with three members, loses a quorum when Pearce’s term expires Aug. 27 unless the nominees are confirmed.

“It won’t go out of business,” Reid said.

Board Options

As of May, the board had ruled on 919 cases since the disputed appointments, including 215 after the court decision, Senator Lamar Alexander of Tennessee, the top Republican on the Senate Health, Education, Labor and Pensions Committee, said at a May hearing.

The board can ratify past decisions that haven’t been appealed, as well as internal appointments that have been challenged, said John Elwood, a former Justice Department official now at the law firm Vinson & Elkins LLP in Washington. The board can’t revisit decisions that have been appealed until the courts act.

The Supreme Court probably will move ahead with the recess-appointment challenge even though the disputed board members are being removed, he said.

“It’s conceivable that they might decide that they would rather not take the case given that the problem is solved for the near term,” Elwood said in an interview. “It’s still kind of an open question in this case. The odds are better that they’ll take it.”

The case speaks to a larger question than the board appointees, Chaison said.

President’s Powers

“It really comes down to the question of the power of the presidency,” Chaison said. “There has been a tradition of presidents selecting people for the NLRB who are affiliated with that president’s party who are like thinking. No one in Congress would be aghast that the National Labor Relations Board is slanted in one way or another.”

Obama appointed Block and Griffin in 2012 after Senate Republicans blocked confirmation. At the time, House and Senate Republicans refused to declare a recess. The Senate held pro-forma sessions every few days, often lasting less than 2 minutes, to avoid calling a recess during which Obama could make appointments. Obama said the Senate was in recess when he named the two Democrats.

Senator Tom Harkin, an Iowa Democrat and chairman of the Senate labor committee, said Republicans also agreed that when another slot opens on the board in late 2014, they won’t filibuster Obama’s nominee.

“We have a guarantee that for the remainder of Barack Obama’s term we will have a fully functioning NLRB,” Harkin told reporters. “That’s pretty nice.”

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