On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board.    The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).

The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on  President Obama's  nominations for the Board and other positions. The "deal", inspired by the threat, included the withdrawal  of President Obama's nomination  of his recess appointees,  Sharon Block and Richard Griffin , whose  appointments were held unconstitutional recess.   The President, however, merely replaced Block and Griffin with Hirozawa and Miscimarra, and only after consultation with and approval from AFL-CIO President Richard Trumka and Organized Labor.

So with the first fully confirmed five member Board in ten years, the question for employers is now what?  Unfortunately the answer is it is probably going to get worse.

As noted Hirozawa spent most of his career representing unions, most recently with New York labor-side firm Gladstein, Reif & Meginniss.  For the past three years he served as chief counsel to NLRB Chairman Mark Gaston Pearce.  One of his key undertakings in that post involved preparing for the implementation of the Board’s “ambush election rules,” which would have seriously impacted the ability of employers to communicate and campaign in representation elections.  Unfortunately, based on his three years at the Board it seems Hirozawa may never have stopped being  an advocate for organized  labor’s agenda, reportedly working directly on the Board's invalidated Ambush Election Rules and Notice Posting.  This is of course is in addition to the numerous employer-unfriendly decisions Pearce participated in while Hirozawa was his chief counsel.

Schiffer's background brings no more welcome news to employers.  Before working directly for the AFL-CIO, Schiffer spent almost twenty years as counsel for the United Auto Workers.  She may be best known for her advocacy on the Employee Free Choice Act and similarly  advocating  that employer's free speech and Section 8(c) rights should be limited and union's should be provided additional organizing rights.

Hirozawa and Schiffer join Pearce who, prior to being appointed to the Board in 2010,  was also a partner at a firm representing unions.  The three former union lawyers will now constitute a majority of the fully confirmed Board.  During the Senate floor debate Senator Lamar Alexander (R-TN) questioned their ability to be impartial, stating "I'm not persuaded... that they're able to transfer their position of advocacy to positions of judge, that they can be impartial when employers come before them."

If the Senator's fears are right, employers are actually in a worse position than they were under the recess appointments.  Obviously, any new Board decisions cannot be challenged under Noel Canning.  Substantively, there is every reason to believe that the new Board will continue the same pro-union agenda that has plagued employers and often defies common sense.  The fully confirmed Board may even feel more emboldened to expand union rights and restrict employers' ability to run their businesses.

Back to Management Memo Blog

Search This Blog

Blog Editors

Authors

Related Services

Topics

Archives

Jump to Page

Subscribe

Sign up to receive an email notification when new Management Memo posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.