Obama Gives Senate One Day to Vet NLRB Nominees

Nuclear option deal provided little time to perform background checks

July 22, 2013

President Barack Obama gave the Senate just one day to vet his new nominees to the National Labor Relations Board.

The White House presented the Senate Committee on Health, Education, Labor, and Pensions (HELP) with vetting documents for former AFL-CIO lawyer Nancy Schiffer and NLRB Democratic lawyer Kent Hirozawa on the eve of their confirmation hearing, according to Senate sources.

Federal law mandates that NLRB nominees undergo tax, criminal, and conflict of interest background checks performed by the IRS, FBI, and Office of Government Ethics, respectively. The HELP committee rules require the White House to turn over vetting documents at least five days before a confirmation hearing, but Republicans waived those requirements as part of the nuclear option deal.

Senate Majority Leader Harry Reid (D., Nev.) demanded that Senate Republicans confirm Hirozawa and Schiffer in a package that includes board chairman Mark Gaston Pearce and two Republican nominees by August, in order to avoid approving a GOP-controlled board.

Hirozawa and Schiffer met with GOP staffers for the first time on Monday and also submitted committee questionnaires as part of the Senate vetting process.  They will appear before the committee on Tuesday and are expected to move forward to the full Senate on Wednesday, just eight days after Obama announced the nominations.

Former NLRB general counsel Jerry Hunter called the expedited confirmation process "unprecedented," emphasizing that executive background checks typically take months to perform.

"I don’t know how the hell the FBI could perform these checks that quickly," he said. "One day is not enough time for the Senate to vet these nominees."

This is not the first time the Obama administration has pushed the Senate to confirm NLRB appointees on short notice.

He nominated union attorneys Richard Griffin and Sharon Block to the board in 2010 just one day before the Senate adjourned, leaving Republicans no time to vet the candidates. He then used his recess authority to appoint the pair while the Senate was still session. Three federal courts have ruled that Obama made unconstitutional appointments to the NLRB, fueling GOP opposition.

Obama withdrew Block and Griffin and nominated Schiffer and Hirozawa after meeting with AFL-CIO boss Richard Trumka on Tuesday. The move sparked outrage from union watchdogs and conservative labor activists.

"Advise and consent has been turned into a bowl of porridge," said National Right to Work Legal Defense Foundation president Mark Mix. "Schiffer and Hirozawa are well known commodities to Richard Trumka and the AFL-CIO."

Hunter said the GOP did not gain anything from the nuclear option deal, as "they substituted two pro-union nominees for another two."

The GOP may have to prepare for another NLRB confirmation battle in the near future, which could lead Reid to put the nuclear option back on the table.

Obama offered to appoint Griffin to NLRB general counsel soon after withdrawing his nomination, according to the Huffington Post.

That post is "arguably the most powerful job at the agency," according to Hunter, who held the position from 1989 to 1993.

The general counsel decides on whether the NLRB will issue complaints against employers and unions. Unlike board decisions, the general counsel’s proclamations cannot be appealed to a higher court.

"That nomination will make employers very uneasy; they’ve seen his decisions and it looks like labor [groups] will end up coming out ahead on the nuclear deal," Hunter said. "Even though Republicans think they avoided the nuclear option, there’s nothing to stop Harry Reid from going to the mat for Griffin the way he did before."

Mix agreed that Griffin’s potential nomination could put Republicans "on their heels," as they consider whether to block an Obama appointee they once opposed and risk triggering the nuclear option.

"Apparently a guy who was unacceptable on NLRB will now be put up as general counsel where he has unreviewable discretion," he said. "It’s almost surreal that the separation of powers are being broken down before our eyes."