The U.S. Senate on Tuesday confirmed President Obama’s nomination of Richard F. Griffin, Jr. to serve as general counsel of the National Labor Relations Board (NLRB). The vote was 55-to-44 and fell along party lines; Senator Lisa Murkowski (R-Alaska) joined Senate Democrats and independents in approving the nomination. With Griffin’s confirmation, the final piece is now in place in what for employers should be a very challenging four years.
Griffin formerly served for many years as general counsel of the International Union of Operating Engineers (IUOE) before becoming a member of the NLRB in 2012, following a “recess” appointment by the president. As a Board member he decided cases that may prove to be invalid pending a challenge of his recess appointment before the District of Columbia Circuit Court of Appeals, which has already ruled that his recess appointment was unconstitutional. That decision is now under review before the Supreme Court of the United States in NLRB v. Noel Canning.
The White House ultimately withdrew Griffin’s reppointment as Board member and nominated him to be the agency’s powerful general counsel. At the NLRB, the general counsel has unreviewable prosecutorial discretion in the issuance of complaints based on unfair labor practice charges, authority over the agency and all of its lawyers (except for the personal staffs of Board members), and is in charge of all NLRB regional offices across the country.
Now that he has been confirmed by the Senate for a full four-year term, Griffin will serve as general counsel beyond the 2016 elections.
He will join the five Senate-confirmed Board members at the NLRB, which now has a decidedly pro-union majority:
- Chairman Mark Gaston Pearce, a former union lawyer whose term expires in August 2018;
- Kent Y. Hirozawa, former chief counsel to Chairman Pearce and also a former union lawyer whose term expires in August 2016;
- Nancy J. Schiffer, former associate general counsel of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and former deputy general counsel of the United Auto Workers (UAW),whose term expires in December 2014;
- Philip A. Miscimarra, former management-side lawyer from Chicago whose term expires in December 2017; and
- Harry I. Johnson, former management-side lawyer from Los Angeles whose term expires in August 2015.
All five Board members and General Counsel Griffin were confirmed by the Senate to avert Senate Majority Leader Harry Reid’s (D-NV) exercise of the so-called “nuclear option,” which would have changed the Senate rules to prohibit Senate filibusters on presidential nominations to federal agencies.
With a decidedly pro-union tilt to the agency for at least four years and beyond, employers should expect a continuation of unfavorable decisions and issuance of pro-union rules such as the so-called “quickie,” “quick snap,” or “ambush” election rules governing representation elections, which strongly favor unions.
Harold P. Coxson is a principal with Ogletree Governmental Affairs, Inc. and a shareholder in the Washington, D.C. office of Ogletree Deakins.