US Senate Committee on Health, Education, Labor, & Pensions

Statement by Senator Tom Harkin on the Nomination of Richard Griffin as NLRB General Counsel

Tuesday, October 29, 2013

WASHINGTON, D.C.—Last night, Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions (HELP) Committee delivered a speech on the floor of the Senate on the nomination of Richard Griffin to serve as General Counsel of the National Labor Relations Board (NLRB).

Following is the full text of his remarks, as prepared for delivery.

"Mr. President, today we are voting to proceed to consider the nomination of Dick Griffin to serve as General Counsel of the National Labor Relations Board [NLRB], a very important role as the top prosecutor for violations of this country’s labor laws.  Given his depth of experience and knowledge of the Act, Mr. Griffin is exceptionally well-qualified for this position, and I have no doubt that he will do a fine job of enforcing our nation’s labor laws for workers, unions, and employers. 

"In July, we confirmed five new NLRB Board Members, preventing the agency from shutting down and giving it a full slate of members for the first time in a decade.  With a fully-functional, five-member Board and a new Senate-confirmed General Counsel, it is my hope that we can provide this important agency with some much needed certainty, mark a new positive chapter for the NLRB, and finally put an end to the delay and obstruction that has recently become all too familiar every time a new NLRB nominee is appointed.

"Without re-litigating the previous controversies, I think it is fair to say that over the past few years the NLRB has been the target of unnecessary political attacks and obstruction.  What most concerns me about this political game-playing is how it affects the everyday lives of working people across America.  These attacks on the Board have real consequences for real people.

"Working Americans need and deserve a fully functioning agency to protect their rights and enforce our nation’s labor laws.  That is why over 75 years ago, Congress enacted the National Labor Relations Act, guaranteeing American workers the right to form and join a union and bargain for a better life.  For both union and non-union workers alike, the Act provides essential protections – it gives workers a voice in the workplace, allowing them to join together and speak up for fair wages, good benefits, and safe working conditions.  These rights ensure that the people who do the real work in this country see the benefits when our economy grows, and aren’t mistreated or put at risk on the job.

"The National Labor Relations Board is the guardian of these fundamental rights.  Workers themselves cannot enforce the NLRA – the Board is the only place workers can go if they have been treated unfairly and denied the basic protections that the law provides.  Thus, the Board plays a vital role in vindicating workers’ rights.  In the past 10 years, the NLRB has secured opportunities for reinstatement for 22,544 employees who were unjustly fired.  It has also recovered more than $1 billion on behalf of workers whose rights were violated. 

"The Board doesn’t just protect the rights of workers and unions; it also provides relief and remedies to our nation’s employers.  The Board is an employer’s only recourse if a union commences a wildcat strike or refuses to bargain in good faith during negotiations.  By preventing labor disputes that could disrupt our economy, the work that the Board does is vital to every worker and every business across the nation. 

"The NLRB is divided into two independent sides: the Board side which adjudicates and interprets the law and the General Counsel side which investigates filed charges, prosecutes violations, and generally supervises the processing of cases.  The General Counsel position is important because the NLRB receives about 20,000 to 30,000 charges per year from employees, unions, and employers, and it is the primary function of the General Counsel to make sure each charge is thoroughly investigated and prosecuted if it is determined to have merit.

"The General Counsel also serves an important role that some of my colleagues may not know about—his attorneys help facilitate settlements to resolve business disputes efficiently.  For example, when two unions picketed Wal-Mart in 2012, Wal-Mart filed a claim with the NLRB and the agency negotiated a settlement.  Indeed, settlements are not rare at the NLRB, but encouraged.  In fact, over 90% of meritorious unfair labor practice cases are settled by agreement, either through a Board settlement or a private agreement.

"Now that I have discussed the importance of the NLRB in protecting rights and the role the General Counsel plays at the agency, I would like to turn the page and tell you about Mr. Griffin and why I strongly support his nomination.  Dick Griffin has a wealth of experience as a labor lawyer and is deeply steeped in labor and employment law.  He most recently served as an NLRB Board Member from January 2012 until this past August.  Prior to that, Griffin was General Counsel for the International Union of Operating Engineers (IUOE) for more than 17 years.  Mr. Griffin actually began his legal career over 30 years ago at the NLRB as a counsel to Board Members.

"My colleagues on the other side of the aisle have agreed that Dick Griffin is well-qualified to serve as General Counsel – indeed, I think his expertise in labor law is difficult to question – but some of them continue to oppose his nomination because of an outstanding legal issue that has nothing to do with Mr. Griffin’s previous public service or his ability to function in this new position.  Much has been made about the process by which Mr. Griffin was previously recess appointed to serve as a Board Member.  The controversy began when the D.C. Circuit issued a ruling in a case called  Noel Canning that diverged from the decisions of three other courts of appeals (2nd, 9th, and 11th), and questioned the validity of an appointment process that has been in place for over 220 years.  Subsequently, two other appeals courts have addressed the issue, and the Supreme Court is set to resolve the legal issue once and for all during this current Session. 

"Although litigation is still pending and the legal question remains unresolved, a number of my colleagues called for Mr. Griffin to resign his position at the Board even though he had personally done nothing wrong and had already taken an oath of office to fulfill his duties. 

"I believe that request was unreasonable.  There was clear precedent at the Board for Griffin to continue to serve until the final legal matter was ultimately resolved.  When there is a split among the circuit courts of appeals, the Board has a longstanding history of waiting until the legal question is resolved by the Supreme Court before taking action, particularly when the issue involves the Board’s operability.  The situation facing the Board after Noel Canning is directly parallel to a similar circumstance facing the Board a few years ago, when the Board had only two members and the D.C. Circuit ruled in a case called Laurel Baye that the two-member board lacked a quorum to do business.  Even after the D.C. Circuit’s decision, the two-member Board – consisting of one Republican member and one Democratic member – continued to hear and issue cases until the Supreme Court ruled on the question.  Not a single Republican Senator called on either one of those two Board Members to resign simply because they refused to acquiesce to the decision of the D.C. Circuit. 

"Mr. Griffin and his fellow recess appointee, Sharon Block, acted appropriately in following this direct precedent and continuing to serve on the Board until the Supreme Court addressed the validity of their recess appointments. To argue that Mr. Griffin’s decision to upheld his oath of office and follow the Board’s prior practice makes him unqualified to now serve in a different position as the Board’s General Counsel is disappointing and short-sighted.

"In addition to this questionable objection, Republicans also continue to claim that recent NLRB nominees, including Mr. Griffin, are unacceptable simply because they have worked on behalf of workers or unions and support our system of collective bargaining.  These nominees have been accused of being biased and called unfit to serve.  But I’d like to point out what the law actually says.  I have often quoted from the National Labor Relations Act on this point, and I will do so again on the Senate Floor today.  The Act states:

“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 and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

"That’s what the law says.  The purpose of the act is to promote collective bargaining and freedom of association, for the good of our workers, for the good of our economy, and for the good of our nation.  The fact that Mr. Griffin takes that purpose seriously makes him more qualified, not less qualified, to serve as General Counsel.

"His past career is not cause for concern.  Most labor lawyers devote their careers either to representing workers and unions or management.  That’s just the nature of practicing labor and employment law.  We have confirmed NLRB nominees in decades past—some of whom have been union-side and some management-side—without substantial controversy.  The fact that Mr. Griffin happens to come from union-side practice does not make him inherently biased. 

"For years, Republican and Democratic Presidents have appointed pro-management attorneys to fill positions at the NLRB.  There is even one example where a Board member came directly from an in-house position at the Chamber of Commerce.  But I don’t hear anyone on the Republican side accusing those nominees of bias.  I would also like to point out that – while I certainly haven’t agreed with the politics or ideology of every past NLRB nominee – I have voted to support Republican nominees like Phillip Miscimarra and Harry Johnson because, given their experience and diverse backgrounds, they were qualified to serve. 

"Board members can and do separate their past work as an advocate from their work as a neutral interpreter of the Act once they are confirmed, and I am sure that Mr. Griffin would do the same if confirmed as General Counsel.  I have every confidence that Mr. Griffin will be – in the words of one of the current Board Members – not pro-union, pro-worker, or pro-management, but “pro-Act.” 

"With this in mind and for all the reasons I have already mentioned, I urge my Republican colleagues to consider voting for Mr. Griffin because he deserves a strong bipartisan vote.

"As I stated earlier, I am hopeful that today will mark a new beginning for the National Labor Relations Board.  A new era where the agency is no longer haunted by political attacks and games.  It is long past time to allow the NLRB to function like the law intends and let the dedicated public servants who work there do their jobs."   

 

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