HELP Committee Members Must Ask Tough Questions of NLRB Nominees

Fred Wszolek
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Posted: May 07, 2013 9:35 AM
HELP Committee Members Must Ask Tough Questions of NLRB Nominees

On May 16th, the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP) will conduct a hearing on the pending nominations to the National Labor Relations Board (NLRB). All five nominees will go before the committee seeking a vote in an effort to move their nominations to the floor of the U.S. Senate.

The legislative action comes on the heels of the U.S. Court of Appeals for the D.C. Circuit finding that President Obama’s so-called recess appointments of Richard Griffin and Sharon Block to the Board were unconstitutional due to the fact the Senate was not in recess, but convening regularly in pro-forma sessions.

The President rolled the dice with the recess appointments and lost. The Department of Justice is now challenging the Noel Canning v. NLRB decision in the United State Supreme Court. The White House’s effort to seek a vote on a full slate of nominees to the NLRB is a concession that the previous tactic of bypassing the same house of Congress the President served in was a failure.

Going before the HELP Committee will be the aforementioned Block and Griffin, but also Board Chairman Mark Pearce, and Republican nominees Harry I. Johnson III and Philip A. Miscimarra. Johnson currently serves as a partner with Arent Fox LLP, while Miscimarra is a partner with Morgan Lewis & Bockius LLP and a senior fellow at the Wharton School of the University of Pennsylvania.

The hearing later his month will offer Senators a unique opportunity to ask the current members of the Obama Labor Board tough questions about their background, and how and why they reached certain decisions.

With regard to Griffin, being he has never actually been vetted, it seems reasonable to query why he is suited for a taxpayer-funded job serving in a role akin to a judge refereeing disputes between labor and businesses in the private sector considering as general counsel of the International Union of Operating Engineers (IUOE), he was the chief legal representative for a union whose locals were overrun by organized crime.

According to Fox News, “[t]he rap sheet for members of the International Union of Operating Engineers reads like something out of Goodfellas. Embezzlement. Wire fraud. Bribery. That’s just scratching the surface of crimes committed by the IUOE ranks.”

“Public documents…show that more than 60 IUOE members have been arrested, indicted or jailed in the last decade on charges that include labor racketeering, extortion, criminal enterprise, bodily harm and workplace sabotage.”

“In some of the more egregious examples, federal prosecutors alleged in February 2003 that the Genovese and Colombo crime families wrested control of two IUOE locals, and stole $3.6 million from major New York area construction projects – including the Museum of Modern Art and minor league baseball stadiums for the Yankees and Mets in Staten and Coney Islands.”

Next, Griffin should explain how – as a defendant in a racketeering and embezzlement case specifically dealing with a cover up – he should serve on a federal agency.

According to The Wall Street Journal, “Mr. Griffin is named in a federal complaint filed in October by 10 members of IUOE Local 501, out of Los Angeles, which describes a ‘scheme to defraud [the local] out of revenue, cost savings and membership,’ by means of kickbacks, bribery, violent threats and extortion. The suit names dozens of IUOE officials as defendants, and Mr. Griffin is highlighted in a section describing an embezzlement and its subsequent hush-up.”

The Washington Free Beacon reports, “According to the lawsuit filed by 10 members of Los Angeles-based IUOE Local 501, which represents workers in Southern California and Southern Nevada, Griffin participated in a conspiracy to manipulate the operation of Local 501 ‘through a pattern of racketeering activity.’ Griffin was served with the complaint and a court summons relating to the lawsuit at his Washington, D.C., home on Dec. 4, according to documents filed in court.”

And the questions for Obama’s nominees to the NLRB shouldn’t stop there. Regarding Pearce, Senators should ask the NLRB Chairman why he told a media outlet in 2012 that the Board intended to “require businesses to hand over lists of employee phone numbers and emails to union leaders before an election.”

Pearce should be queried on why the Board sought to ram through an “ambush” election rule, which was later found to be invalid on technical grounds by a court. Quickie elections would afford a business owner less than three weeks to respond a unionization effort in their workplace and unnecessarily pressure employees, while limiting their ability to receive the necessary information to make a knowledgeable decision about forming a collective bargaining unit, which would have a profound impact on their workplace.

Also, Pearce and company should be asked about their intentions to pursue electronic off-site voting – a form of computerized card check – that would allow union organizers to scrutinize a worker’s vote in labor elections.

And lastly, the Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile should be raised. It allowed for the formation of “micro-unions” and undid decades of precedent in labor law. The decision reached in August 2011 has the practical effect of placing various, mini unions under one employer’s roof resulting in increased labor relations costs and the balkanization of the workforce.

The only limit to the questions posed is the amount of time allotted for the hearing. Senators must ensure these important issues and others are raised before any serious consideration can be given to President Obama’s nominees to the National Labor Relations Board.