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New NLRB Nominee Would Strengthen Big Labor's Agenda

The left has a troubling Big Labor agenda that can only be accomplished by a pen-and-phone strategy to evade the U.S. Senate and House. The strategy centers largely upon the National Labor Relations Board (NLRB) that will need the key fifth board member to cast the deciding votes for the agenda.

With the December 16 expiration of Nancy Schiffer’s term on the NLRB, Big Labor is scrambling to see someone confirmed before then to take her place. Their surprise answer is to withdraw Sharon Block, who had already had her confirmation hearing, had passed in a bipartisan fashion out of committee, and had been placed on the Senate Executive Calendar for a vote.

Now President Obama and Big Labor have taken three steps back and on November 12 nominated Lauren McFarren, chief labor counsel and deputy staff director of the jurisdictional Senate Health, Education, Labor and Pensions Committee.

McFerran should not be slid through a committee hearing a mere week after she is nominated. Given the issues at hand, full advice and consent cannot be provided in such time.

Big Labor Agenda

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 Big Labor’s allies 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 are concerned by Big Labor attempts to obtain workers’ private information so that, in addition to knocking at the doors of their homes, unions can email, text, and instant message workers.

Property rights defenders are worried that Big Labor wants to use businesses’ email systems for their unionization purposes unrelated to the business.

Businesses large and small 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 organizing activity.

The NLRB wants to give unions the ability to put up anti-business posters in the business in plain view of the customers.

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 headaches.

The NLRB is attempting to speed up union elections to as few as 10 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 Big Labor’s problematic agenda.

Background and Timeline

In January of 2012 President Obama made four recess appointments, three of which were for the National Labor Relations Board.

Also in January of 2012, groups sued over the constitutionality of these appointments. The Competitive Enterprise Institute filed an amicus brief against the appointments.

In the deal of July 2013, Democrats agreed not to re-nominate Sharon Block and Richard Griffin their seats on the NLRB. Republicans agreed to confirm substitutes. Politico described the deal, “In return for removing Obama’s recess appointees to the board, Democrats won agreement to have a functioning NLRB through 2014, including a nominee for a slot opening on the board next year. In return, the GOP was able to scuttle the recess appointees that have been declared illegal by Republicans and whose constitutionality will come before the Supreme Court later this year.”

Block and Griffin were the subjects of Republican ire because they kept serving on the NLRB after a United States Court of Appeals ruled their recess appointments unconstitutional in January 2013. As The Wall Street Journal reported, “Republicans said she and another Democratic recess appointee defiantly stayed on the board even though lower courts ruled their appointments invalid.”

Block and Griffin stayed until the U.S. Supreme Court confirmed the unconstitutionality of the recess appointments in the case of National Labor Relations Board v. Noel Canning.

Later in October of 2013, when Democrats were rumbling about reneging on the deal and proceeding with the nuclear option anyway, Republicans tried appeasement by confirming Richard Griffin as general counsel of the NLRB—a role akin to CEO, where the board largely ratifies his actions.

Appeasement did not work, and in November of 2013 Majority Leader Harry Reid exercised the nuclear option to end filibusters for nominees other than for the U.S. Supreme Court.

In July 2014, President Obama nominated Sharon Block to somebody else’s NLRB seat, not technically the same seat she had held. Some would call that a distinction without a difference.

In September 2014, Block had her confirmation hearing and was voted out of the Senate Committee on Health, Education, Labor and Pensions in bipartisan fashion with Republican Lisa Murkowski supporting the nomination. The Hill and others reported, “Block's confirmation is all but assured after [the committee vote], given Senate rule changes allowing most presidential appointments to advance with support from a simple majority.” 

On November 12, 2014, President Obama’s abruptly withdrew the nomination of Sharon Block to the NLRB.

The White House issued a statement that Republicans communicated staunch opposition to confirming Block. A White House spokesperson said, “Unfortunately, Senate Republicans continue to object to her confirmation due to their protest of the president’s recess appointments to the NLRB.”

While Block and Griffin both served after the U.S. Court of Appeals ruled their appointments unconstitutional, Block’s nomination has been pulled, whereas Griffin was confirmed, arguably to a more damaging position.

“The move, coming as Congress returned to Washington for its lame duck session following the Republican romp last week, is not part of any larger deal on nominees, the White House said, but centered purely on Republican opposition to Block because she was a recess appointment,” reports Politico.

A piece of the puzzle may be missing.

While HELP Committee Chair Sen. Tom Harkin initially expressed dismay last week at Block remaining at the Department of Labor, now the left-wing spin machine is furiously praising the move.

Public Policy Law 360 featured the headline, “Obama's NLRB Nominee Swap Seen As Shrewd Strategic Play,” and stated, “With National Labor Relations Board Member Nancy Schiffer's term nearing its end, the Obama administration made a shrewd strategic move to replace nominee Sharon Block with a Senate labor lawyer because it will be easier for Republican lawmakers to accept a familiar face from Capitol Hill than an unknown nominee or someone tied to the Noel Canning controversy, lawyers say.”

The Big Labor aim remains to confirm a nominee before the term of Nancy Schiffer expires on December 16, 2014. That motive would answer the question in part, but is it the whole story? Did Block somehow irritate someone on the left?

U.S. Senate floor time becomes a precious commodity in a lame duck session, and Democrats seem to be banking on the idea that any delay in moving McFarren on the floor would be less than a delay in moving Block.

Perhaps the swap in nominees is as simple as that.

Regardless of the nominee and for whatever reason, the real problem for the center-right is the radical Big Labor agenda that any new liberal nominee represents and enables.