The NLRB is Back at Full Throttle

Bruce Vail
In These Times
November 04, 2013

On Tuesday, the U.S. Senate took the final measure to restore the National Labor Relations Board (NLRB) to full strength with its approval of Richard F. Griffin Jr. as general counsel. Though Griffin's start date has yet to be determined, his instatement marks the last step in the board's resumption of its role as the principal agency of the federal government for settling labor-management disputes in the private sector. Given Griffin's long history as a union lawyer, his confirmation also signifies a rare victory for organized labor on Captol Hill.

The Senate action brings to a close a nearly two-year struggle between the White House and Senate Republicans over nominations to the labor board. The partisan bitterness—which is likely to continue—was reflected in Tuesday’s 55-44 vote, in which Lisa Murkowski (R-Alaska) was the only Republican to back Griffin's appointment.

Griffin’s nomination will likely go down in NLRB history as one of the most unusual, not so much for his official actions but for the partisan rancor and legal maneuvering that accompanied his selection.

Griffin's contentious confirmation process was part of a deal struck in July to end a standoff between Republicans and Democrats over a number of disputed Obama nominations, including Secretary of the Department Labor and Environmental Protection Agency administrator. The deal saw the NLRB restored to its full capacity of five board members (three Democrats and two Republicans), with the delayed confirmation of Griffin as general counsel, who acts as a sort of chief prosecutor for the agency.

Along with fellow nominee Sharon Block, Griffin was originally named as a board member by President Obama in early 2012 in a “recess appointment” that did not require Senate confirmation. But Senate Republicans objected strongly that such appointments were unconstitutional and backed the U.S. Chamber of Commerce's court challenge of them. The Chamber’s challenge was successful: A federal district court ruled in January of this year that the appointments were illegal. The White House, however, continues to insist on the validity of the nominations, and the U.S. Supreme Court is scheduled to rule on the issue next year.

Throughout the process, much of the focus has been on Griffin as a supposed symbol of Obama’s pro-union sympathies. Formerly the top lawyer for the International Union of Operating Engineers (IUOE), Griffin has been a lifelong advocate for the rights of union members. He had been involved in many aspects of the union’s affairs, including arguing cases at the NLRB. And while not especially prominent in Washington, D.C. labor circles, Griffin is seen by opponents as emblematic of "big labor"—so much so that Griffin’s continued presence on the NLRB itself became a political impossibility, remarks former chairman William B. Gould IV, who served on the board in the 1990s. As part of the political bargain between Sen. Harry Reid (D-Nev.) and Sen. Mitch McConnell (R-Ky.) to break the overall impasse about nominations, McConnell and other Republicans insisted that both Griffin and Block resign their seats.

But in a little-noticed addendum alongside the wider-ranging negotiations, top Senate Republicans reportedly agreed to confirm Griffin as general counsel later in the year. “I think this is [a] real testament to Sen. Reid’s tactical skill to get Griffin approved [as general counsel]. Going back to the time when I served on the board in the 1990s, there was no way we could have ever gotten a labor union lawyer confirmed as general counsel. It just would have been politically impossible; it just couldn’t be discussed,” Gould says.

Gould adds the general counsel’s position is one of “great power and responsibility.” In his new role, Gould points out, Griffin has the power both to issue unfair labor practice complaints against employers or unions and to prevent such complaints from being made. "That’s a significant power, and as a presidential appointee confirmed by the Senate, he can’t be fired by the NLRB chairman or even be ordered by the chairman to take specific actions," he continues. Further, the general counsel has major influence over the future direction of the NLRB by controlling the hiring of new staff, both at the D.C. headquarters and at the agency’s regional offices, Gould said.

Communications Workers of America CWA) President Larry Cohen welcomed the confirmation, saying, "Richard Griffin will be a strong advocate for workers' rights, and we look to him and this board to help restore” the agency as a place where workers' rights are given full legal protection.

Cohen was organized labor’s point person in the fight in the Senate concerning the other nominations. He continues in that role as a partner in The Democracy Initiative, a coalition of labor, environmental and progressive policy groups dedicated to reforming Senate rules so that presidential appointments can no longer be easily blocked by opponents in the Senate. The group has now turned its attention to several controversial appointments to federal judgeships.

Gould predicts, however, that the NLRB will continue to be a flash point in the political contest between Republicans and Democrats. “Unfortunately, it's likely that Republicans will continue to vilify Griffin and the board in general. They have gone too far down that road to turn back now.”

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