• No More Musical Chairs in Washington, and Employers Now Face the Music
  • September 2, 2013 | Author: David P. Phippen
  • Law Firm: Constangy, Brooks & Smith, LLP - Fairfax Office
  • Now that the Senate confirmed the appointments of five members of the National Labor Relations Board on July 30, we have our first full Board in more than a decade. The confirmations came after President Obama reacted to a Republican filibuster threat by withdrawing the nominations of two Democratic "recess appointees," Sharon Black and Richard Griffin. Instead, he nominated Mary Schiffer, former counsel for the AFL-CIO and the United Auto Workers, and Kent Hirozawa, former Chief Counsel for Board Chair Mark Gaston Pearce. The Senate approved the two by a vote that split largely along party lines. The Senate also confirmed Pearce for another term, and management-side Republicans Harry Johnson, III, and Philip Miscimarra.

    With a 3-2 Democrat majority and no more "recess appointment cloud," commentators expect the Board to renew and possibly accelerate a "union-friendly" agenda, including expedited representation elections. The so-called "quickie elections" rule has been on hold since it was struck down by a U.S. District Court judge (the U.S. Court of Appeals for the District of Columbia Circuit has been holding the Board's appeal in abeyance pending a Supreme Court decision in Noel Canning). Regardless of the outcome of Noel Canning, employers should not expect this Board to be any less pro-organized labor than it has ever been. Employers can expect decisions that give unions increased power and new avenues for organizing, more findings that employers have violated the Board's interpretation of the law, and general tilting of the field toward the interests of organized labor.

    President Obama withdrew the nomination of Acting General Counsel Lafe Solomon to the General Counsel position after the Senate failed to confirm him, and Solomon is expected by some to retire. In Solomon's place, Obama nominated Richard Griffin, one of the two withdrawn "recess" appointees. The General Counsel's office acts as a "prosecutor" under the National Labor Relations Act. Griffin may face stiff opposition from Senate Republicans based on his failure to resign over the recess appointment controversy.

    The Senate also confirmed the controversial Thomas Perez as the new Secretary of Labor, succeeding Hilda Solis and Acting Secretary Seth Harris. Perez is expected to continue the course set by his predecessor, including a final rule on the "persuader rule" under the Labor Management Reporting and Disclosure Act, which is expected in November with an effective date of January 1. However, in recent announcements Perez has indicated a willingness to consider all views.

    The Senate also confirmed three members to the National Mediation Board, which handles labor-management matters in the railroad and airline industries, renewing the terms of Chair Linda Puchala and Member Harry Hoglander, both Democrats and former union officials. Republican Nicholas Geale, a former staffer for Sen. Lamar Alexander (R-TN), will begin his first term.