[Congressional Record Volume 159, Number 151 (Monday, October 28, 2013)]
[Senate]
[Pages S7567-S7569]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GRIFFIN NOMINATION
Mr. ALEXANDER. Madam President, tomorrow, according to the statement
made by the majority leader, we will be voting on the nomination of
Richard Griffin, Jr. for General Counsel of the National Labor
Relations Board.
I will be voting against Mr. Griffin's nomination for general counsel
because I am concerned about the direction of the NLRB as an advocate
more than an umpire, and I do not believe his presence as the general
counsel will improve that situation.
As the senior Republican on the Labor Committee, working with my
friend, the chairman, Senator Harkin, and with others, what I hope we
can do over the next several years is look for a long-term solution for
the restructuring of the National Labor Relations Board--one that will
ensure that it will operate more as an umpire than as an advocate,
whether the President is a Democrat or a Republican.
The Board has become far too politicized under recent
administrations. This did not start with the Obama administration, but
it has gotten worse with this administration, and it has moved more and
more toward the side of union advocacy with such major shifts as ambush
elections, micro-unions, and undermining State right-to-work laws.
Swinging back and forth on important labor policy issues does the
American working man and woman no good in this time of underemployment
and unemployment.
So, later this fall, I will join other Senators in introducing
legislation that will restore balance to the National Labor Relations
Board--a proposal that will retain the rights of workers and employees,
but reduce the swing that occurs from administration to administration
based upon who is in power. What we should be striving for is fairness
and consistency.
There are exceptions, of course, but as a general proposition, I
believe a President should have an up-or-down vote on his nominee, so I
intend to vote for cloture. But Mr. Griffin's nomination does not do
enough for me to show the promise of moving the Board from advocacy
toward umpire and, therefore, I do not intend to vote to confirm his
nomination.
I thank the Presiding Officer and I thank Senator Harkin for his
courtesy in allowing me to go first.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Madam President, again, I want to thank my colleague and
good friend Senator Alexander for a great working relationship on our
committee. Obviously, we have differences of views and opinions on
matters--that is the nature of legislation and this body--but we have
always worked together in a very conciliatory fashion, and open, and
working things out. So I appreciate his approach and the fact that the
Senator is willing to give us cloture so we can get an up-or-down vote.
I understand he has certain reservations about the nominee. I
understand that. But, again, I thank my colleague for being willing to
get us to the point where we can have an up-or-down vote on Mr.
Griffin.
Madam President, tomorrow--we were going to vote today, but the
leader came out and announced there was an agreement on both sides to
put the vote off until tomorrow to consider the nomination of Mr.
Richard Griffin to serve as General Counsel of the National Labor
Relations Board, 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
he will do an outstanding job of enforcing our Nation's labor laws for
workers, unions, and employers.
In July, we confirmed five new NLRB members, preventing the agency
from shutting down, 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 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 relitigating 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 had 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 to
bargain for a better life. For both union and nonunion workers alike,
the act provides essential protections. It gives workers a voice in the
workplace. It allows 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 are not 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 National
Labor Relations Act. The Board is the only place workers can go if they
have been treated unfairly and denied the basic protections 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.
I know many times people think: Well, a lot of these old abuses of
workers whom you read about in your history books--well, that is just
history and we have gotten over that. Quite frankly, I wish that were
the truth. But the fact that in 10 years 22,544 employees were
reinstated because they were unjustly fired indicates there are still
unfair labor practices being committed by businesses today. And $1
billion recovered on behalf of workers just in the last 10 years--that
is $1 billion that unscrupulous companies took from their workers
without the right to do so, and the NLRB got that money back for
workers. Think about that: $1 billion.
The Board does not just protect the rights of workers and unions; it
also provides relief and remedies to our Nation's employers, our
businesses. The Board is an employer's only recourse if a union
commences a wildcat strike, for example, or refuses to bargain in good
faith during negotiations. By preventing labor disputes that could
disrupt our economy, the work the Board does is vital to every worker
and every business across the Nation.
Further, the NLRB, you have to understand, is divided into two
independent sides. There is the Board side, which adjudicates and
interprets the law; then there is 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 these charges--each
charge--are thoroughly investigated and prosecuted if they are
determined to have merit.
The general counsel also serves an important role that some of my
colleagues may not know about. The attorneys in the General Counsel's
Office help facilitate settlements to resolve disputes efficiently. For
example, when two unions picketed Walmart in 2012, Walmart filed a
claim with the NLRB, and the agency negotiated a settlement. Indeed,
settlements are not the
[[Page S7568]]
exception at the NLRB but the rule, and they are encouraged. In fact,
over 90 percent of meritorious unfair labor practice cases are settled
by agreement, either through a Board settlement or a private agreement
by the two sides.
Now that I have discussed the importance of the NLRB in protecting
rights and the role the General Counsel plays at that agency, I want to
turn the page and talk about Mr. Griffin, the nominee who is before us
now to be the General Counsel, and I want to again indicate why I
strongly support his nomination.
Richard Griffin has a wealth of experience as a labor lawyer. He is
deeply steeped in labor and employment law. He most recently served as
an NLRB board member himself from January 2012 until this past August.
Prior to that, Mr. Griffin was general counsel for the International
Union of Operating Engineers 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.
Some of 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
my friends on the Republican side continue to oppose his nomination
because of an outstanding legal issue that has nothing to do with Mr.
Griffin's previous public service, his background, or his ability to
function in this new position.
Here is what this is all about: 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 District of Columbia
Circuit Court issued a ruling in a case which is called the Noel
Canning case that diverged from the decisions of three other courts of
appeals--the Second Circuit, the Ninth Circuit, and the Eleventh
Circuit--and my friends on the Republican side are questioning the
validity of an appointment process that has been in place for over 220
years. And that was the decision in the Noel Canning case.
Subsequently, two other appeals courts have addressed this issue. The
Supreme Court is set to resolve the legal issue once and for all during
this session of the Supreme Court.
Again, to sum it up, we have different circuit courts deciding
differently on an appointment process that any President uses to fill
recess appointments. This litigation is still pending. The legal
question remains unresolved until the Supreme Court decides it. But a
number of my colleagues during that period when we had different
circuit courts deciding differently on this appointment issue called
for Mr. Griffin to resign his position on the Board, even though he had
done nothing personally wrong and he had taken an oath of office to
fulfill his duties.
I believe that request from my Republican colleagues was
unreasonable. There was clear precedent at the Board for Mr. 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 NLRB has
a longstanding history of waiting until the legal question is resolved
by the Supreme Court before they take action, particularly when the
issue involves the Board's operability.
The situation that was facing the Board after this Noel Canning case
is directly parallel to a circumstance by the Board a few years ago
when the Board only had two members--only had two members. The DC
Circuit ruled in a case called the Laurel Baye case that the two-member
Board lacked a quorum to do business. Even after the DC Circuit's
decision, the two-member Board, one Republican, one Democrat, 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 DC Circuit. So here is what happened. 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 uphold his oath of office and
follow the Board's prior practice, that somehow that makes him
unqualified to now serve as the Board's General Counsel is, quite
frankly, a position I think is not only disappointing but I think
without substance.
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 unfit to serve.
But now I want to point out what the law actually says. Keep in mind,
when Board members, as well as general counsel, are appointed to the
Board and we confirm them, they take an oath of office to uphold the
law. So it is kind of interesting to note what the law actually says
that they are sworn by oath to uphold.
I have often quoted from the National Labor Relations Act on this
point. I will do so again. Here is what the law says, the National
Labor Relations Act--the law that Board members and eventually Mr.
Griffin, if he is confirmed--and I believe he will be--will take an
oath of office to uphold. Here is the law. I will quote it exactly as
it is written:
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.
Those are the exact words. That is what the law says. The purpose and
the policy is to promote collective bargaining, to promote collective
bargaining and freedom of association, protecting workers and their
rights of self-organization, the designation of representatives of
their own choosing. That is what the law says.
I think 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 the
management. That is the nature of practicing labor and employment law.
We have confirmed NLRB nominees in the past, some of whom have been
union side and some have been management side. We have done so without
substantial controversy. The fact that Mr. Griffin happens to come from
the union side practice does not make him inherently biased. For years,
Republican and Democratic Presidents have appointed promanagement
attorneys to fill positions at the NLRB.
There is even the one example of where a Board member came directly
from an in-house position at the U.S. Chamber of Commerce. But I do not
hear anyone on the Republican side accusing those nominees of bias. I
guess it is only when you represent labor unions that you are biased,
not when you represent the Chamber of Commerce.
I would also like to point out that while I certainly have not agreed
with the politics or ideology of every past NLRB nominee, I voted to
supported Republican nominees, such as Phillip Miscimarra and Harry
Johnson, who are on the Board now, not because I agreed with them but
because, given their experience and their diverse backgrounds, they
were qualified to serve. They were qualified, as is Mr. Griffin,
eminently well qualified.
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.
I am absolutely sure Mr. Griffin will 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 prounion, not
proworker, not promanagement, but pro-act, pro-Labor Relations Act or
put maybe more succinctly prolaw, prolaw enforcement.
With this in mind, and for all of the reasons I have mentioned, I
urge all of my colleagues, my Republican colleagues, to consider voting
for Mr. Griffin because he deserves a strong bipartisan vote.
[[Page S7569]]
As I stated earlier, I voted for Republican members. When we had
Board members earlier this year, in July if I am not mistaken, in July
of this year, Democrats voted for the two Republican nominees, again
not because we agreed with them ideologically, maybe where they were
coming from, but they were qualified to serve.
Yet when we have nominees with whom the Republicans are opposed
ideologically, even though they are well qualified, Republicans vote
no. Think about that. When we have nominees to the National Labor
Relations Board, whom the Republicans support, to whom we may be
opposed ideologically but they are qualified, we vote for them.
Democrats vote for them. When we have nominees to the National Labor
Relations Board who are well qualified but whom the Republicans
disagree with ideologically, they vote against them--quite a
difference.
Now is the time to start breaking that down. It did not used to be
this way. It never was this way in the past. If they were qualified
under a Republican President, we would support them; a Democratic
President, we would support them. We wanted to know what were their
qualifications, what were their backgrounds, were they vetted
properly--no criminal activity, nothing in their background that would
indicate they could not judiciously act openly and fairly.
I am sorry it has gotten to this position now where Republicans feel
they have to vote against someone to the National Labor Relations Board
simply because that person was a lawyer for a labor union. I voted for
NLRB members who were lawyers for businesses. That is fine. I have no
problem with that. Why do my Republican colleagues have such a problem
voting for someone who was a lawyer for a labor union? Labor unions are
legal entities protected by national law, the National Labor Relations
Act.
So I hope again that my Republican colleagues will look at Mr.
Griffin for who he is, for what he is, for his background, eminently
well qualified, has always been fair, has always been judicious--a good
lawyer.
Yes, he represents labor unions. But in all of the vetting we had in
our committee on Mr. Griffin, we had people from the business side and
others who all said he represented labor unions, but he did so fairly.
He did that fairly, with competence and with the ability to work out
agreements with the other side. What more can you ask?
I am hopeful this vote tomorrow will mark a new beginning for the
National Labor Relations Board. We will have a vote on cloture and then
we will have an up-or-down vote. So we have 60 votes for cloture to
bring it to a close. Then there will be up to 8 hours of debate on the
nominee. I do not think we need to take that long. I am hopeful some of
my Republican colleagues will vote for Mr. Griffin and start to break
this thing down, where if it is someone appointed by a Democratic
President, Republicans vote no; if it is someone appointed by a
Republican President, Democrats vote no. That should not be the way it
should be, not the way it has been in my lifetime here, in all of my
time in the Senate.
I have served with three Republican Presidents in the Senate. They
have made nominations to the National Labor Relations Board. I have
been on this committee since then. We always supported them. As long as
they were qualified and they went through the vetting process and they
were qualified, it was fine. The President should have his nominees. We
would vote for them.
I am hopeful we will get back to that. I hope we will have a new era,
where the agency is no longer haunted by political attacks, political
games. It is time, long past time, to allow the NLRB to function as the
law intends and let the dedicated public servants who work there do
their jobs.
We will have this vote, I am told, tomorrow afternoon on cloture. As
I said for the benefit of Senators, we will have up to 8 hours. I do
not imagine we will take all of that. We will have up to 8 hours of
debate on the nominee. Again, I hope we have a good strong vote on both
cloture and on the nominee himself. Mr. Griffin, as I said, is
eminently well qualified--eminently well qualified. Nothing in his
background would ever indicate that he would be anything less than an
outstanding counsel at the National Labor Relations Board.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Donnelly). Without objection, it is so
ordered.
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