By a party-line 49-46 vote, the Senate voted yesterday to confirm the nomination of Vermont labor lawyer Peter Robb to serve as the next General Counsel of the National Labor Relations Board. Robb replaces former union lawyer Richard Griffin whose term ran from November 2013 until last month. (Longtime Board official Jennifer Abruzzo has been serving as Acting General Counsel thusfar during November.)
The hyper-partisan tally is consistent with the 2013 confirmation of Mr. Griffin by a 55-44 party-line vote, following a negotiated compromise in the Senate to preserve the filibuster. Mr. Griffin served following a prolonged period during which there was no properly authorized General Counsel, as the U.S. Supreme Court invalidated the tenure of Lafe Solomon, who for years performed the General Counsel role without Senate confirmation. Prior to Mr. Solomon, General Counsel appointments — like many presidential appointments — were generally less controversial. Ron Meisburg, for example, who served 2006-2010, was confirmed by a voice vote.
Senate Democrats, however, are concerned that a confirmed Republican General Counsel setting the agenda for a Republican majority Board will pursue a roll back of the more extreme and overreaching policy directions of the Obama Board. The likely targets of such an agenda include:
- the amorphous Browning-Ferris standard for finding joint employment status;
- the equally broad Miller & Anderson standard for including third-party employees and regular employees in single units without mutual consent;
- the largely discredited D.R. Horton holding that class and collective class action waivers violate the Act;
- the status of graduate teaching assistants as “employees” under the Act;
- the Purple Communications case’s creation of employee and union rights to use company equipment for organizing and union activity;
- the ever-expanding scope of “protected concerted activity” and its impact on all manner of unrelated workplace and handbook policies; and
- the expedited representation election rules — and the extreme interpretations which Regional Offices have enforced during elections.
As we have noted previously, however, there will not be much time during the five weeks (including Thanksgiving) before Chairman Miscimarra’s term expires on December 16, 2017, for the Board to effectuate much — if any — of this. Accordingly, one may expect even more aggressive Democratic opposition to whomever is nominated to that upcoming vacancy.