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Don't Get "Grubered" by the Lauren McFerran Nomination to NLRB

Chief Labor Counsel and Deputy Staff Director of the jurisdictional Senate Health, Education, Labor & Pensions Committee Lauren McFerran has her confirmation hearing at 10:00AM on Thursday, November 20, to become a new National Labor Relations Board (NLRB) Member. She was just nominated on November 12, and the committee vote is expected just after Thanksgiving. Democrats will likely push for a floor vote in advance of the expiration of NLRB Member Nancy Schiffer’s term on December 16. Don’t get “Grubered” The Competitive Enterprise Institute played a significant role in bringing recordings of Jonathan Gruber to light. Beyond meeting with the President, writing portions of Obamacare, and modeling its effects, Gruber was giving speeches. It took quite some time for these speeches to come to light. Now that they have, they are proving blockbuster. McFerran has also given many speeches and participated in numerous roundtables. Has she said anything controversial? Should the people know about what she has had to say? The answer is a resounding yes, and it will take time to obtain and examine such speeches. Especially after Gruber has emphasized this Administration’s penchant, notwithstanding their propaganda to the contrary, for blocking transparency, rushing processes, and banking on people’s stupidity, the American people do not want to be “Grubered” again. Union Advocate In her time at the Big-Labor law firm of Bredhoff & Kaiser, McFerran advocated for unions. Republicans have been unhappy about this Administration’s nomination of union advocates, literally union attorneys, to positions entrusted with balancing concerns in an environment that has, by statute (the National Labor Relations Act), the principle purpose of ensuring robust interstate commerce, “It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce…” Clubby Elistism McFerran’s nomination reprises the clubby elitism of Yale appointees, which elitism wears thin, especially in a movement that cloaks itself as men and women of the people rather than special-interest tools for Big-Labor bosses’ wallets. Obamacare and Dodd-Frank People may not realize that both Obamacare and Dodd-Frank bills have labor-related provisions in them. People deserve to know what role, as the top Senate labor staffer, McFarren had in these bills. Any role in these controversial bills would be controversial. By the same token, no role would also be controversial, as labor provisions in these bills would then have gone through the Senate without jurisdictional oversight. What are the merits of these labor provisions? Are they aimed at sweetheart deals for unions? To wade through these bills alone will take a good amount of time—time necessary for a thorough review. Obama: Don’t Short-Circuit the Process President Obama commented last week that he did not want to “short-circuit” the existing process, “I’ve been clear in the past … and my position hasn’t changed, that this is a process that is supposed to be followed.” The process for the Keystone XL pipeline extension that has had six and a quarter years of examination by this Administration, that is. The existing process for National Labor Relations Board nominees? Meh, fudging that would likely work exceedingly well, thank you. Haste Barometer Some of the best nomination statistics have been compiled by University of Richmond Law School Professor Carl Tobias, who has been monitoring judicial appointments for several years. Commenting on 35 days from nomination to confirmation of Geoffrey Crawford to the federal bench, Tobias said “I think it is warp speed. I think it is the fastest of the 310 Obama [judicial] nominees.” The President has nominated 6,700 people since his first election. Again using judges as a barometer, Tobias notes that judicial confirmations have been averaging between 180 and 210 days to pass through the Senate. The Ink on Obama’s Pen-and-Phone Labor Policy Agenda Moreover, this nominee would be the deciding vote on many contentious issues about which employers and employees alike have great concern. Put another way, this nominee would serve as the ink on the labor policy for Obama’s pen-and-phone strategy to obviate the need for the Senate and House. For many union concerns—unions being the bulk of the foot soldiers and funders and policy-makers of the left—she is the key to the imperial presidency. Elements of Big-Labor Policy Agenda The NLRB wants to move the country in a vastly new direction for employers in a significant array of issues. This nominee represents the swing vote on these issues. What is on the Big-Labor agenda? Commercial concerns include whether franchises, staffing agencies, and contractors/subcontractors will suffer major changes to their businesses, as leftist theories attempt to make businesses joint employers and transform everyone into an employee of a big conglomerate that faces huge liabilities and expenses and is more easily unionized. Privacy advocates have their back up at NLRB attempts to give Big Labor workers’ private information so that, in addition to knocking at the doors of workers’ homes, Big-Labor can email, text, FaceTime, Gchat, Snapchat, Facebook message, Instagram, and Tweet workers. Property rights defenders are worried that the NLRB wants to give Big-Labor use of businesses’ email systems for unionization purposes unrelated to the business. Businesses small and large are disturbed at the NLRB concept that profane and insubordinate actions—cursing out and telling off bosses, even in front of customers—is to be considered protected unionization activity. The NLRB wants to give Big Labor the ability to put up anti-business posters in the business in plain view of the customers. Collegiate student athletes worry that the United Steelworkers would unionize them if the NLRB reverses precedent and re-categorizes grant-in-aid students as employees. Employers have been alarmed at the NLRB push to have unions and bargaining units as small as two people—micro-unions—which creates massive administrative havoc. The NLRB is attempting to speed up union elections to as few as ten days from the request to unionize, thereby ambushing businesses that are left without time to discuss downsides. These examples only begin to paint the picture of the NLRB’s advancement of Big Labor’s problematic agenda. Senate Comity Senate comity is the consideration afforded the other party. The idea is that when and where one party affords favor and courtesy to the other party, such favor and courtesy is to be reciprocated. That is a concept to ponder for a moment. On nominations for agencies, commissions, and boards, you will commonly see pairings of a Democrat and a Republican together. The paired nominations will often move smoothly through the process together. Here we have no such pairing of nominees. Rather, this nominee would be moving solo. This nominee will be the key deciding vote on labor policy. In such a situation, would the Democrats confirm a Republican nominee in three weeks? Methinks not. Thus, Senate comity is not a valid consideration. Leader McConnell Senator Mitch McConnell has explained how to govern stably and durably, “An executive order can’t [create consensus]… The only institution that can make stable and enduring laws is the one we have in which all 50 states are represented equally, and where every single senator has a say in the laws that we pass.” Swinging policy wildly with repeated reversals of decades of NLRB precedent is not the way to govern. Senator McConnell and his staff are quiet cognizant of the huge swing in labor policy under the union advocates whom Obama is nominating. Houston, We Have a Problem In response to the wild policy swing, McConnell has cosponsored Senator Lamar Alexander’s National Labor Relations Board Reform Act, S. 2814, to utilize the model of the Federal Election Commission, among others, that would place an even number of Democrats and Republicans on the National Labor Relations Board. Congress has targeted the NLRB in numerous other bills too, with ideas ranging from defunding it to cutting various powers. When leadership and committee heads are pushing wholesale reform bills, then, Houston, we have a problem at the NLRB. NLRB Is Fine with Four Members Less than a month from now, on December 16th, with the expiration of the term of one of the NLRB Members, Nancy Schiffer, the Board will have an even number of Democrats and Republicans. The Board certainly can operate with four Members—in fact, recent litigation has confirmed that three Members would suffice. Do not rush to grease the pendulum that could swing labor policy so radically. The NLRB will operate just fine without the swing Member. Do a thorough vetting and do not “short-circuit” the process. Do not allow us to be “Grubered” again.