by: Adam C. Abrahms and Steven M. Swirsky
On July 30th the Senate confirmed career union lawyer Kent Hirozawa (D) and retired AFL-CIO Associate General Counsel Nancy Schiffer (D) as well as seasoned management labor lawyers Philip Miscimarra (R) and Harry Johnson (R) to serve on the National Labor Relations Board. The Senate also confirmed current NLRB Chairman Mark Gaston Pearce (D).
The confirmations are of course the result of the Senate Republicans backing down in the face of the threat by Senate Democrats to change Senate rules so that they could force a vote, up or down, on President Obama’s nominations for the Board and other positions. The “deal”, inspired by the threat, included the withdrawal of President Obama’s nomination of his recess appointees, Sharon Block and Richard Griffin , whose appointments were held unconstitutional recess. The President, however, merely replaced Block and Griffin with Hirozawa and Miscimarra, and only after consultation with and approval from AFL-CIO President Richard Trumka and Organized Labor.
So with the first fully confirmed five member Board in ten years, the question for employers is now what? Unfortunately the answer is it is probably going to get worse.
As noted Hirozawa spent most of his career representing unions, most recently with New York labor-side firm Gladstein, Reif & Meginniss. For the past three years he served as chief counsel to NLRB Chairman Mark Gaston Pearce. One of his key undertakings in that post involved preparing for the implementation of the Board’s “ambush election rules,” which would have seriously impacted the ability of employers to communicate and campaign in representation elections. Unfortunately, based on his three years at the Board it seems Hirozawa may never have stopped being an advocate for organized labor’s agenda, reportedly working directly on the Board’s invalidated Ambush Election Rules and Notice Posting. This is of course is in addition to the numerous employer-unfriendly decisions Pearce participated in while Hirozawa was his chief counsel.
Schiffer’s background brings no more welcome news to employers. Before working directly for the AFL-CIO, Schiffer spent almost twenty years as counsel for the United Auto Workers. She may be best known for her advocacy on the Employer Free Choice Act and similarly advocating that employer’s free speech and Section 8(c) rights should be limited and union’s should be provided additional organizing rights.
Hirozawa and Schiffer join Pearce who, prior to being appointed to the Board in 2010, was also a partner at a firm representing unions. The three former union lawyers will now constitute a majority of the fully confirmed Board. During the Senate floor debate Senator Lamar Alexander (R-TN) questioned their ability to be impartial, stating “I’m not persuaded… that they’re able to transfer their position of advocacy to positions of judge, that they can be impartial when employers come before them.”
If the Senator’s fears are right, employers are actually in a worse position than they were under the recess appointments. Obviously, any new Board decisions cannot be challenged under Noel Canning. Substantively, there is every reason to believe that the new Board will continue the same pro-union agenda that has plagued employers and often defies common sense. The fully confirmed Board may even feel more emboldened to expand union rights and restrict employers’ ability to run their businesses.