National Labor Board Shutdown Averted as Senate Approves New Members

Bruce Vail

The U.S. Senate on Tuesday approved the nominations of five members of the National Labor Relations Board (NLRB), averting a threatened shutdown of the agency amid continuing attacks by Republican Party lawmakers that the Obama-era NLRB is too pro-union.

The votes confirmed a deal struck earlier this month that saw Senate Majority Leader Harry Reid (D-Nev.) withdraw his threat to overhaul Senate filibuster rules in return for Republican agreement to allow confirmation of a small numbers of presidential appointments to federal agencies. Among the contested appointments approved under the deal were Thomas Perez as the new Secretary of the Department of Labor, four new members of the NLRB and the re-confirmation of the board’s current chairman Mark Gaston Pearce.

With the confirmations fight concluded for now, the NLRB can resume its role of enforcing federal collective bargaining law without fear of imminent shutdown. An estimated 80 million private sector workers are covered by the rules of the NLRB, which would have been forced to suspend normal operations next month when the expiration of Pearce’s original term of office threatened to leave the agency without the legally required quorum to issue decisions or enforce its orders. 

AFL-CIO President Richard Trumka applauded the confirmation votes, stating: America’s working families applaud the Senate for confirming President Obama’s outstanding and highly qualified nominees to the National Labor Relations Board. This is the first time in more than a decade that the NLRB has been fully staffed. That is good news for all workers seeking to exercise the rights they are guaranteed by law. Those essential rights include the ability to bargain together for fair wages and living standards, and a workplace safe from abuse, harassment, and intimidation.”

The challenge to this board is to go forward,” adds Larry Cohen, president of the Communications Workers of America (CWA), who was critical of the original deal. The NLRB is facing a number of difficult legal challenges inspired by the U.S. Chamber of Commerce, Cohen tells Working In These Times, and is certain to face continued hostile scrutiny from Republicans in Congress. The Republican Party of today doesn’t seem to believe in the concept of any workers’ rights at all, so the NLRB is going to have to fight its way ahead every inch of the way,” Cohen predicts.

Proof of this was provided during the Tuesday Senate votes themselves, Cohen adds. Two key votes in the process were passed on margins of 54-44, with all Republicans voting against labor-supported NLRB candidates. Nobody raised any objections to the qualifications, or to the quality, of these candidates. They [Republicans] voted against them just because they seem to be opposed to any enforcement of workers’ rights at all.” 

The Senate deal was marked by unprecedented swiftness in the appointment and confirmation of two of the new NLRB members — Kent Hirozawa and Nancy Schiffer. Obama named the two to the posts on July 16, a hurried confirmation hearing was held on July 23, and the final confirmation votes concluded on the evening of July 30. Quick action was part of the Democrat-Republican deal in the Senate, which included agreement by the Democrats to jettison sitting board members Richard R. Griffin Jr. and Sharon Block, both of whom had received controversial recess appointments” from Obama early last year.

Both Hirozawa and Schiffer enjoyed labor support, and were the subjects of the Republican anti-labor votes referred to by CWA’s Cohen. Hirozawa is currently the top lawyer on the staff of the NLRB Chairman Pearce, and Schiffer is a retired lawyer for the AFL-CIO, with experience in her early career working for the United Auto Workers.

Sen. Lamar Alexander (R-Tenn.), the top Republican on the Health, Education, Labor, and Pensions Committee (HELP), had raised questions at the hearing last week as to whether the pro-labor credentials of the two would prevent then from treating employers fairly once they became NLRB members. He seemed to speak for most Republicans when he issued the following statement Tuesday:

I am voting against two of the nominees…and I want to explain why. One is Mr. Hirozawa and one is Miss Schiffer. Both of them have excellent legal backgrounds, but the problem is that I’m not persuaded — and I hope I will be proven wrong — that they’re able to transfer their positions of advocacy to positions of judge, that they can be impartial when employers come before them.

The other two nominees approved Tuesday are experienced labor lawyers associated with large law firms that represent corporations in legal struggles against their own employees. They are Harry I. Johnson III, a partner in the firm Arent Fox, and Philip A. Miscimarra, of the firm Morgan, Lewis & Bockius. Both were approved on voice votes, with no Democratic Party opposition recorded.

The final element of the Senate NLRB deal will fall into place in September, when ex-member Griffin is expected to be confirmed as the new NLRB General Counsel, a position that also requires Senate confirmation, Cohen further reports.

Griffin, formerly the top lawyer of International Union of Operating Engineers, is slated to replace Acting General Counsel Lafe Solomon, who was appointed to the post by Obama in 2010, but never confirmed. Early reports of Griffin’s new appointment provoked howls of outrage from some ultra-conservative groups, but Cohen says top Senate Republicans have quietly agreed to his confirmation sometime after Labor Day.

Sen. Tom Harkin (D-Iowa), chairman of the HELP Committee, summed up Democratic Party frustration over NLRB appointment fights in a statement on Tuesday: The time has come to start a new chapter for the NLRB. It’s time to ratchet down the political rhetoric that has recently haunted this agency, and let the dedicated public servants who work there do their jobs. Indeed, I hope today’s votes mark a new beginning for the Board. A revitalized NLRB is a critical part of our continued efforts to rebuild a strong economy and a strong middle class.”

United Auto Workers and the Communications Workers of America are sponsors of InThe​se​Times​.com.

Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.
In These Times August 2022 Cover
Subscribe and Save 66%

Less than $1.67 an issue