Richard Griffin, the National Labor Relations Board nominee who was forced to bow out Tuesday as part of a Senate deal to avert a filibuster showdown, will reportedly be getting a major consolation prize: he will be named the board’s top attorney, according to the Huffington Post.
Since Griffin already sits on the board through a disputed recess appointment that multiple federal courts have found unconstitutional, the change will be a lateral move from one high-profile NLRB position to another.
The news is the cherry on the top for Senate Democrats and their Big Labor allies after their earlier big win on the filibuster showdown — and a major rebuke of the Republicans who fought them over the NLRB nominations.
The GOP had drawn the line in the sand over Griffin and second nominee, Sharon Block. The one fig leaf they got out of the showdown was that Griffin and Block would be leaving the NLRB.
Only now it turns out that Griffin will be hanging around in one of the NLRB’s most powerful posts, general counsel.
The Huffington Post reports was based on” sources who confirmed the arrangement (but) asked not to be named in order to speak freely, since no White House announcement had yet been made.”
It is not clear if any similar arrangement has been made for Block.
The general counsel position requires Senate confirmation as well, though the current one, Lafe Solomon, has been serving without confirmation for three years now. The president can simply designate an acting general counsel.
Griffin had been a top lawyer with the International Union of Operating Engineers before he was nominated by President Obama to the NLRB along with Block and a third nominee, Terrence Flynn, in December 2011. Just three weeks later the three were put on the NLRB through recess nominations.
Contrary to some reports, their nominations were never filibustered. The Senate never even had time to hold hearings on them. Obama simply decided to ignore the Senate and the Constitution’s balance of powers doctrine and unilaterally appoint the three.
In January, an appeals court ruled Griffin and Block’s recess appointments were unconstitutional. Two other courts have since made similar rulings. That not only denied the NLRB a functioning quorum, it potentially invalidated much of the NLRB’s actions since the appointments.
Obama then renominated Griffin and Block (Flynn had since dropped out) and three others to the NLRB: current chairman Mark Pearce and two Republicans, Harry Johnson and Robert Miscimarra. (By tradition, the minority party gets two of the five NLRB seats.)
Big Business was in no hurry to get the NLRB, which has been pro-labor under Obama, back in action. Senate Republicans filibustered Block and Griffin, claiming that they were tainted because of the recess appointments.
That was likely a convenient excuse for the GOP though. What they really wanted to do was to further stymie the NLRB. Allowing just votes on the other three would give the NLRB a 2-1 Republican majority.
The NLRB’s inability to act became a major concern for Big Labor, which pressed Senate Majority Leader Harry Reid, D-Nev., hard to end the filibuster deal.
The deal that ultimately emerged Tuesday was for Griffin and Block to drop out and be replaced by two other Obama nominees.
Reportedly, Obama will pick AFL-CIO Associate General Counsel Nancy Schiffer and Kent Hirozawa, chief counsel to chairman Pearce, as the replacements.
Both were reportedly picked in consultation with the AFL-CIO. Both are now guaranteed Senate confirmation votes.
Republicans defended the deal. “The president’s going to send us two new names. That’s what we asked for. I don’t know how we caved,” said Sen.Richard Burr, R-N.C.
In effect, the Democrats and Big Labor just swapped one two pro-labor picks for two other pro-labor picks and will get a fully-functioning NLRB as a result, which had been their goal from the start.
And now the capper is that one of the people the Republicans fought to keep off NLRB will be staying there after all.