A full-strength NLRB: Preparing new battles for union elections, notice rule?
For the first time since 2003, all of the members of the the National Labor Relations Board have actually been confirmed by the Senate. So what’s that going to mean for employers?
Here’s the short version of how the confirmation deal went down:
Senate Republicans had been dragging their feet on confirming President Obama’s nominees until last July, when a political deal was cut: The Dems wouldn’t change the rules on filibusters if the GOP members would confirm the NLRB nominees.
The GOP got one other concession: The administration agreed to replace nominees Richard Griffin and Sharon Block, who were named as “recess appointments” when Congress wasn’t in formal session in January, 2012.
You’ll remember that last January, a federal appeals court in Washington, DC ruled that President Obama’s recent appointments to the National Labor Relations Board violated the Constitution.
The Obama administration claimed the president used his recess appointment powers to name Block and Griffin — both Democrats — and Republican Terence Flynn during the holidays, when the Senate was supposedly not in session.
But the DC judge ruled that the Senate was in “pro-forma” session — so Obama’s NLRB appointments were unconstitutional.
The ruling came out of a case filed by Noel Canning, which was challenging an NLRB ruling that the company violated labor law during negotiations for a new collective bargaining agreement with union employees.
The case is slated to go before the Supreme Court next term.
3 Dems, 2 Republicans
Quick sketches of the current NLRB members:
- Mark Pearce is currently chairman of the panel, a position he has held since August 2011. He has served as a member of the NLRB since March 2010. Mr. Pearce was a founding partner at Creighton, Pearce, Johnsen & Giroux and previously a partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was a district trial specialist for the NLRB in Buffalo, NY.
- Nancy Schiffer was Associate General Counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) from 2000 to 2012. Previously, she was Deputy General Counsel to the United Auto Workers (UAW) from 1998 to 2000. She also worked as Associate General Counsel for the UAW from 1982 to 1998. Earlier in her career, Ms. Schiffer was a staff attorney in the Detroit Regional Office of the National Labor Relations Board and worked as an attorney in private practice.
- Harry Johnson, III was a partner with law firm Arent Fox LLP, a position he held since 2010. Previously, Mr. Johnson worked at the Jones Day law firm as a partner from 2006 to 2010 and as an associate from 1994 to 2005.
- Kent Hirozawa was chief counsel to Pearce before becoming a member of the board. Prior to joining the NLRB staff in 2010, Mr. Hirozawa was a partner in the New York law firm Gladstein, Reif and Meginniss LLP, where he advised clients on a variety of legal and strategic issues, including Federal and state labor and employment law matters. Mr. Hirozawa previously served as a field attorney for the NLRB from 1984 to 1986.
- Philip Miscimarra was a partner in the Labor and Employment Group of Morgan Lewis & Bockius LLP, a position he held since 2005. Since 1997, Mr. Miscimarra has been a senior fellow at the University of Pennsylvania’s Wharton Business School. Mr. Miscimarra worked at Seyfarth Shaw LLP as a partner from 1990 to 2005 and as an associate from 1987 to 1989.
Pearce, Hirozawa and Schiffer are Democrats; Johnson and Miscimarra are Republicans.
Agenda likely unchanged
Although there’s been the normal blather about “fresh starts” and “open minds,” it’s not likely the board will change its aggressive approach to workplace issues, the experts say.
Consider this comment from the Workplace Fairness Institute blog:
How can they be open-minded if they’ve spent entire careers working for Big Labor? … Schiffer spent decades working for the AFL-CIO and the United Auto Workers, and Hirozawa was formerly the top lawyer for … Pearce. ….
Don’t let the new NLRB fool you. It’s up to the same job-killing nonsense it’s always been up to.
Attorney Marc Bloch, wrtiting on the Crain Cleveland Business blog, says that now that the NLRB’s at full strength, the board will likely just pick up where the old board left off. The issues Bloch expects the panel to dive into:
- More “rule making” — The so-called quickie or expedited election and the “poster rule” will be revisited
- The supervisory status of certain classes of employees will be revisited. This issue revolves around “supervisors” not being permitted to vote in union elections
- Expanded use of company e-mail for employee solicitation in union election campaigns
- Representational rights for non-union employees who request a representative to be present during disciplinary interviews, and
- Wholesale review of policies that affect non-union employees’ “rights”, e.g. social media and confidential investigations.
Better buckle up. Employers could be in for a bumpy ride.
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