For the first time in many years, the NLRB will have a full five-member complement. In order to achieve this, President Obama withdrew the nomination of two controversial, anti-employer recess-appointed members, Robert F. Griffin and Sharon Block. In their place, he nominated two replacements with similar philosophies, who will be confirmed by the Senate if they haven’t been already.
Robert Griffin has now been nominated by the president to be General Counsel of the NLRB. This position, theoretically, is more powerful than a simple membership on the Board. The General Counsel, for example, decides what unfair labor practice charges to take to trial. Because most cases are settled to avoid the cost of litigation, the ability to bring charges is more dangerous than the ability, as a Board member, to decide a case that has already been tried. As you might recall, the Boeing case never went to trial.
Sharon Block, the other member whose nomination was withdrawn, is being appointed to a top position in the Department of Labor, reporting to the new, controversial Secretary of Labor, Tom Perez. The confirmation of Mr. Perez was also part of the deal that resulted in the withdrawal of Griffin and Block’s nominations.
If both of these individuals were not qualified, by philosophy or other factor, to be on the NLRB, how are they now fit to be in such important positions? While I understand the president’s desire to have the people he wants in governmental positions, specifically agreeing to the withdrawal of nominations, then putting them in similar, important positions, boggles my mind. Then again, many of the actions of this administration have boggled my mind. When it comes to government, whether the actions are generated by the Republican or Democratic Party, mind-boggled seems to be my normal state.
I just hope my clients understand in the coming years that it will be very difficult to get reliably fair treatment from these individuals and their departments. Yes, the president has been transformative, especially in the field of labor relations.