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With Senate signing off on general counsel nominee, NLRB fully functional for first time in a decade

October 30th, 2013  |  Lisa Milam-Perez

By Lisa Milam-Perez, J.D.

The Senate on Tuesday confirmed the nomination of Richard F. Griffin, Jr., to be general counsel of the National Labor Relations Board. When he takes his post, the agency, remarkably, will find itself legitimately staffed by Senate-approved appointments for the first time in more than 10 years.

That this feat was accomplished at all was a marvel amid the current political climate. Senate Majority Leader Harry Reid threatened filibuster rule changes to unplug the stopped-up nomination process, while Republican Lindsey Graham vowed to block every Obama nominee until the President delivered to Congress the survivors of the 2012 Benghazi attack. A motion for cloture was filed in the Senate on October 16. Ultimately, Griffin was approved by a 55-44 party-line vote, with only Alaska Republican Lisa Murkowski breaking ranks in the nominee’s favor.

Agency under fire. President Obama could have opted for a less contentious candidate. Griffin, formerly general counsel to the International Union of Operating Engineers, served as NLRB member under the controversial recess appointments of January 2012, now pending Supreme Court review. His nomination to the Board was withdrawn by the President last summer as part of an eleventh-hour deal with Senate Republicans in the face of their staunch opposition. Instead, Griffin was tapped for the GC post, which did not please Republicans. Indeed, in September, Republicans on the Senate HELP committee opposed moving Griffin’s nomination as general counsel out of committee and onto the Senate floor. The move was not surprising given that the NLRB had been under relentless fire. The House had passed a bill defunding the agency until the recess appointments issue is resolved. A similar measure was introduced, with weaker prospects, in the Senate. The House also passed a $50 million cut in the NLRB budget—on top of sequestration.

“The NLRB is truly at an unprecedented place in its history; we’re being attacked politically, judicially, and legislatively,” said NLRB Acting General Counsel Lafe Solomon, speaking at a conference last May. “There are some very important decisions being challenged on the basis that the Board was invalid. There are tangential, collateral attacks on us judicially. Some employers are going into the D.C. Circuit court seeking writs of mandamus against us. It’s unprecedented.”

Nay votes and defunding measures notwithstanding, the NLRB now has a full complement of bona fide, Senate-sanctioned appointees: five Board members and a general counsel. What else does this mean for the agency and its constituents?

More of the same? Many management attorneys contend that the NLRB has “gone rogue” in recent years, citing, for example, its controversial notice-posting rule (invalidated by the Fourth Circuit), its “ambush election” rules (currently held in abeyance), and its aggressive scrutiny of employer policies such as blanket confidentiality agreements, social media rules, mandatory arbitration, and at-will employment. Employers are girding themselves for more of the same, only now from an agency emboldened by imprimatur.

Griffin is generally expected to follow the trail forged by the embattled Solomon — whose constitutional authority to act has been called into question as well — and whose tenure was marked by criticism from employers for what they construed as an unprecedented foray into the nonunion workplace. (Solomon, a career NLRB lawyer, also has been criticized by several of the agency’s administrative law judges, with three decisions of late that have expressly questioned the conduct of the GC’s office in issuing complaints.)

“I am often accused of applying the NLRB to the nonunion workforce in a novel way,” Solomon said. But the notion of nonunion workers banding together to seek improvements in terms and conditions of employment “was embedded in the Act in 1935, and all Boards and GCs have enforced the law against nonunion employers,” he pointed out. “I would argue that the current Board and I have not done anything novel or unprecedented.”

“The NLRB does not solicit any charges; we only act on what complaints are filed with the office,” he added. “I don’t say this flippantly, but it is a price of doing business in this country that there are protections for workers’ rights.”

Practical effect. For labor unions and employees, a fully functioning NLRB is a welcome development, as AFL-CIO President Richard Trumka noted after yesterday’s confirmation vote. “The NLRB is now running on all cylinders to meet its duty to fairly and impartially oversee the workplace rights of millions of Americans,” he noted. “A functioning NLRB is good news for all workers — whether they belong to a union or not — seeking to exercise the rights they are guaranteed by law.” Moreover, with a fully approved NLRB, the agency’s rulings are now impervious to court challenge on constitutionality grounds.

The Board’s rulemaking function, though, will face obstacles, even with its Senate-approved makeup. In vacating the Board’s contested rules, the circuit courts based their decisions not on the validity of the recess appointments but rather, on free speech grounds under Sec. 8(c) or on the theory that the Board’s limited authority under Sec. 6 allows it to serve merely in a “reactive” capacity — addressing unfair labor practice charges and conducting representation elections upon request. The circuit courts’ reasoning on these points applies with equal force when the Board’s composition is constitutionally sound.

Much will turn on the Supreme Court’s decision in Noel Canning, for which oral argument has yet to be scheduled. A ruling that the recess appointments were improper would invalidate hundreds of NLRB decisions issued since 2010 (as well as, arguably, Board complaints, subpoenas, regional director appointments, and other prosecutorial and adjudicatory functions carried out in recent years). While the validly constituted Board could simply affirm these prior actions, such rubber-stamping could keep the agency sidetracked for a while.

Republicans look to “restructure.” Urging that the NLRB needs to be “umpire rather than advocate,” Lamar Alexander, senior Republican on the Senate HELP committee, opposed Griffin’s nomination, noting that his “background as a union advocate and his work as general counsel for one of the major unions doesn’t do anything to help me believe that he will improve the situation at the NLRB.” In a statement following Tuesday’s vote, Alexander contended that the Board had become “far too politicized under recent administrations. That didn’t start with the Obama administration, but it’s gotten worse with this administration as it has moved toward the side of union advocacy.”

Alexander said he will introduce legislation later this fall that would offer “long-term solutions” to “restore balance” to the agency. His proposal, he promised, would “retain the rights of workers and employees, but reduce the swing that occurs from administration to administration based upon who is in power. What we should be striving for is fairness and consistency.”

What lies ahead? Will the newly constituted NLRB tread carefully, having been humbled by its critics? Or will the duly appointed members come out swinging, taking full advantage of the Board’s Democratic majority and its newfound legitimacy? Will the agency revive its rulemaking and policy initiatives? Will it continue its effort to “expand” its reach to nonunion workers? Or will Senate Republicans convince wayward Dems to join them in a wholesale restructuring of the labor agency? Stay tuned.

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