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Policy: Labor

Senate panel approves replacement NLRB nominees

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In a crisp 10 minutes, the Senate Health, Education, Labor and Pensions Committee voted along strict party lines Wednesday to approve the nominations of Kent Yoshiho Hirozawa and Nancy Jean Schiffer to serve on the National Labor Relations Board.

The committee’s action sets the stage for a Senate floor vote on a full slate of five NLRB nominees, which is likely to come during the week of July 29. In addition to Hirozawa and Schiffer, current board chairman Mark Pearce is up for a second term. Republican picks Harry Johnson and Philip Miscimarra will take the the board’s remaining two seats. (The minority party gets to pick two of the five board members.)

“I will not vote to report these two nominees favorably out of committee, but I will not support any effort to delay their consideration on the floor,” said Sen. Lamar Alexander, R-Tenn., the committee’s ranking Republican. “The nominees will have an up or down vote.”

If all five are approved by the full Senate, the board will have a 3-2 Democratic majority, ending months of inaction caused by the board’s lack of a valid quorum.

Under President Obama, the NLRB has shown a marked pro-labor tilt. It has pushed to speed up organizing elections, required business to post notices on union organizing rights (both actions since struck down by courts) and allowed unions to organize “micro-units” at businesses, a reversal of long-held precedent.

Hirozawa, who is currently Pearce’s chief counsel, and Schiffer, a top AFL-CIO lawyer, were only nominated by Obama July 16. Today’s vote marked a lightning pace for the committee. The nominees met with the senators July 22, who then held a confirmation hearing the following day.

The rapid pace was the result of a deal Republicans struck with the Democratic majority July 16 to avoid a showdown on the 60-vote filibuster rule. As part of the deal, the renominations of two of the NLRB’s current members, Richard Griffin and Sharon Block, were dropped by the White House.

Republicans objected to Block and Griffin because Obama appointed them while claiming the Senate was in recess. Three courts have since ruled such nominations unconstitutional because only the Senate can decide when it is in recess. Republicans argued the nominations were tainted as result. The Supreme Court is set to rule on the nominations later this year.

Obama’s replacement picks of Hirozawa and Schiffer were made in consultation with the AFL-CIO, which has pushed Democrats hard to get a working pro-labor quorum on the NLRB. The board has been essentially frozen since Block and Griffin’s recess appointments were found unconstitutional.

Alexander lamented that the White House was stocking the board with pro-labor picks. “This administration has been pushing the NLRB further and further toward the side of union advocacy, rather than fair adjudication,” he said.

Sen. Tom Harkin, D-Iowa, the committee’s chairman, bristled at the notion that NLRB nominees should have to affirm they would be neutral arbiters of the law.

“I don’t remember anyone on our side asking [GOP picks Johnson and Miscimarra] to set aside their past pro-business, anti-union views,” Harkin said.

What Harkin didn’t say was that a three-vote majority rules in all board decisions, so it doesn’t matter much what the other two members think.

In a final jab at the GOP, Obama is now reportedly moving to appoint Griffin as the NLRB’s general counsel, one of its most powerful positions. While the position requires Senate approval, the current general counsel, Lafe Solomon, has served without Senate confirmation for three years.

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Sean Higgins

Senior Writer
The Washington Examiner