There has been quite a lot of tumult associated with the National Labor Relations Board (NLRB) under President Obama, and the past few weeks have been no different. Just this past week, before heading out for the August recess, the U.S. Senate voted to confirm five members to the Board, including four news ones.
Chairman Mark Pearce was confirmed, as were Democratic nominees Kent Hirozawa and Nancy Schiffer. According to The Associated Press “both have long experience as labor lawyers,” with Schiffer last serving as associate general counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The Senate also confirmed the two Republicans nominees, Philip A. Miscimarra and Harry I. Johnson III.
Now, the Board moves forward. It has a variety of significant issues pending before it; some have lingered for quite some time. In addition, if the U.S. Supreme Court affirms the D.C. Circuit Court’s decision in Noel Canning and declares that President Obama’s recess appointments to the Board were unlawful, the new Board will have its work cut out for it. Such a decision would invalidate as many as one thousand decisions and orders requiring the new Board to consider each one anew.
But for most in the business community, the new Board looks like the previous Obama Labor Boards. Chairman Pearce, who has been on the Board since 2010, has supported sweeping changes in Board law and procedure for the sole purpose of making union organizing easier. Nancy Schiffer is the third appointment to the Board made by President Obama of a person who comes directly to the Board from working for Big Labor. Prior to this administration, a lawyer working for a union would first have to serve a period of time in a neutral capacity before they could sit on the Board. It will be difficult for Schiffer to be impartial and we do not anticipate she will be. During her career at the AFL-CIO she zealously argued in favor of card check and against continuation of the secret ballot. Her testimony on the issue turns a blind eye to the pressure employees would be under if they were required to cast a vote for or against the union on a card in public.
Lafe Solomon appears to have been unceremoniously shoved aside and in his place Richard Griffin has been nominated as general counsel. Griffin is one of the two recess appointees to the Board who continued to issue decisions after the D.C. Circuit held they were without authority to do so. Some of the decisions they issued further developed the law under controversial Obama Board precedent. This decision-making continued even after two other circuit courts joined the D.C. Circuit in holding they were non-members.