New Members to the National Labor Relations Board Will Be Appointed

While England awaits the birth of Prince William and Princess Kate’s first baby, we in the US await the anointing of our next Members to the National Labor Relations Board. OK, I concede more Englanders are waiting with baited breath than we are on this side of the pond. Let’s face it, this fully functioning NLRB is not good news for companies.

President Barack Obama will nominate Nancy Schiffer and Kent Hirozawa to replace Richard Griffin and Sharon Block on the National Labor Relations Board. The two new Members were handpicked after close consultations supposedly between the Obama Administration and Richard Trumka, head of the AFL-CIO.

As expected, the two new Board nominees have spent much of their professional lives advocating on behalf of unions. Ms. Schiffer was most recently associate general counsel at the AFL-CIO from 2000-2012. Before that, she was counsel to the UAW. Her term would expire on Dec. 16, 2014. As counsel for the AFL-CIO, Schiffer testified in 2007 in favor of the Employee Free Choice Act (EFCA) in person and in writing. Her written testimony, “Strengthening America’s Middle Class Through the Employee Free Choice Act” states:

The Employee Free Choice Act would reform the NLRA so that workers can choose union representation and collective bargaining without fear and intimidation. When a majority of workers demonstrate their choice to form a union their representative can be certified by the NLRB without the need for the delay-ridden, coercive, and divisive NLRB election process. Federal labor law would finally, and again, assure that workers who want collective bargaining are able to have it. And it would guarantee that collective bargaining would be conducted effectively and efficiently and would result in a contract. Finally, it would create real penalties as a deterrent to unlawful employee conduct. We urge your support of the Employee Free Choice Act.

Mr. Hirozawa is currently chief counsel to NLRB Chairman Mark Gaston, and if confirmed, his term would end Aug. 27, 2016. Hirozawa’s career basically mirrors Gaston’s, as he was an NLRB field attorney (Region 2, covering New York) before spending over 20 years in private practice representing unions. I expect Hirozawa’s votes will also mirror Gaston’s.

The Senate will also vote on the remaining Board nominees, Republicans Harry I. Johnson, III and Philip A. Miscimarra. The deal also clears the way for approval of Thomas Perez’s nomination for Labor Secretary.

This deal averted the “nuclear option” but also removes obstacles to the NLRB proceeding with its aggressive pro-labor agenda. A fully functioning Board is poised to make sweeping changes, including issuing more expansive “quickie” or “ambush” election rules, moving forward with its persuader reporting rules, and continuing to change legal precedent as it has done over the past few years like this, this, this, and this to name a few.

Matt Austin is a Columbus, Ohio employment lawyer who owns Austin Legal, LLC, a boutique law firm with offices in central and northeast Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can email Matt at Austin@LaborEmploymentOSHA.com or call him at 614.285.5342.

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