[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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