Richard Griffin’s Nomination To Be NLRB General Counsel Will Be Considered by HELP Committee

By Edwin S. Hopson

On September 18, 2013, the Senate Health, Education, Labor and Pensions Committee will hold an executive session at which it will discuss the nomination of Richard Griffin to be General Counsel of the National Labor Relations Board.  It will also take up the nominations of Chai Feldblum to serve as a Commissioner of the Equal Employment Opportunity Commission and Scott Dahl to be Inspector General of the Department of Labor.

The nomination of Griffin to be NLRB General Counsel may be controversial.  Griffin was one of the President’s recess appointments to the NLRB in January 2012, which were held invalid by the D.C. Circuit Court of Appeals in Noel Canning v. NLRB, now pending before the U.S. Supreme Court.  A number of Republican Senators opposed Griffin’s nomination to be a confirmed NLRB Member.  As part of a deal to avoid the “nuclear option” regarding the fillibuster, Griffin’s nomination to be a Board Member was withdrawn by the President in July 2013.  It is unclear whether Griffin’s later nomination to be General Counsel was part of the July 2013 deal.

NLRB Inspector General Finds No Evidence Member Hayes Was Enticed to Resign

By Edwin S. Hopson

As we reported in a blog article on December 6, 2011, NLRB Republican Member Brian Hayes was being investigated by the NLRB’s Inspector General over an allegation that he had been enticed to resign his position as a Member of the Board, which at the time would have reduced the number of board members to two, leaving the Board unable to issue decisions. Mr. Hayes had earlier threatened to resign in a letter to the Chairman of the Board over certain proposed regulations being considered by the Board’s other two members. Mr. Hayes decided later and announced that he was not resigning.

In an article by Kevin Bogardus posted on the website of The Hill on January 26, 2012, it was reported that the Inspector General had completed his investigation and concluded that Mr. Hayes had not been enticed to resign his post.  “As a result of our investigative efforts, we found no evidence that enticements were made to Member Hayes to resign his position as a Board Member,” Dave Berry, the NLRB’s Inspector General wrote in a January 23 memo to Mr. Hayes and NLRB Chairman Mark Pearce. The Inspector General did note, however, that Mr. Hayes had sought employment with the law firm of Morgan, Lewis & Bockius. Nevertheless, Mr. Berry found no wrongdoing by Member Hayes.  Apparently, Mr.Hayes had recused himself from any matters before the Board where the Morgan firm was involved.  By December 22, 2011, according to the report, Member Hayes advised the Morgan firm that he was no longer interested in employment with them.

This may not be the end of the matter.  The Hill also reported that U.S. Representative George Miller, a Democrat from California and the ranking member on the House Education and the Workforce Committee, wrote a letter on January 26, 2012, to U.S. Attorney General Eric Holder requesting that the Justice Department initiate its own investigate of Mr.Hayes’ resignation threat.

NLRB’s Inspector General May Have Opened an Investigation as to Whether Member Hayes Received an Offer Tied to a Resignation

By Edwin S. Hopson

On December 5, 2011, Holly Rosenkrantz of www.Bloomberg.com reported that the Inspector General of the National Labor Relations Board may have opened an investigation into whether Republican Member, Brian Hayes, received offers or enticements to resign his position on the five-member Board which would cripple the agency by reducing it to only two Members that would have no authority to issue decisions. 

There had been speculation that Hayes might resign in order to defeat an attempt by the two Democratic Members, Chairman Mark Pearce and Member Craig Becker, to implement a rule speeding up the union representation election process.  At the Board’s November 30 hearing on that proposed rule, Hayes indicated he was not going to resign.  At the same time, Hayes voted against the proposed rule.