Will a major critic of the National Labor Relations Board get a seat on it? That is the possibility created by Senate Majority Leader Mitch McConnell’s recommendation of lawyer G. Roger King to serve on it.
King was formerly with the management-side law firm Jones Day and was lead counsel in the Supreme Court case Noel Canning v. NLRB, where he successfully argued that President Obama’s 2012 recess appointments to the board were unconstitutional.
He also has offered pointed criticism of the labor board in testimony before Congress, telling the House Education and Workforce Committee in 2011 that the board, the main agency that enforces federal labor law, was engaged in an “activist labor-oriented agenda.”
Noel Francisco, the lawyer who argued Noel Canning before the Supreme Court, said his former colleague was a natural choice for the board based on his a deep understanding of federal labor law.
“If you are looking over the qualified candidates the majority leader would look to I think Roger would be at the top of the list. He’s been for many years one of the most prominent labor lawyers in the country,” Francisco said. “If there is a debate [over his nomination] I think Roger is prepared to stand up.”
He described King as a “very personable, friendly, funny, self-deprecating, humble guy.”
King, who currently serves as senior labor and employment counsel for HR Policy Association, a trade group for human resources officers, said he could not comment.
The choice has prompted anger from organized labor. AFL-CIO labor federation spokesman Josh Goldstein told Politico the pick was a “finger in the eye to the president and all working people.”
A spokesman for McConnell’s office said they had not received any response from the White House since the majority leader suggested King last month and did not know if President Obama would actually forward the nomination.
King does not appear on the White House’s official list of pending nominations.
He would replace departing board member Harry Johnson, whose term expires Aug. 27.
The board has five members who serve staggered terms and rules by simple majority. The president picks three of the nominees while two go to the minority party. However, the president officially forwards all the nominations to the Senate for approval.
Johnson was a Republican pick, so King would reaffirm the board’s status quo of three Democrats and two Republicans.
King would hardly be the first person on the board to clearly hail from one side of the labor-management divide. Obama nominated Nancy Schiffer, the former associate general counsel of the AFL-CIO, to serve on the board from 2013 to 2014. Obama also nominated the board’s current general counsel, Richard Griffin, who was formerly the top lawyer for the International Union of Operating Engineers.
Griffin had previously been recess-appointed by Obama to serve as a board member in 2012. The Supreme Court in the Noel Canning case subsequently declared his appointment unconstitutional. The ruling meant an entire year’s worth of board rulings were retroactively voided.
King was “intimately involved” in every aspect of Noel Canning, Francisco said. He noted that the ruling in the case was unanimous, with even both of Obama’s own Supreme Court picks agreeing the recess appointments were wrong.
That’s not the only thing that would result in awkward conversations around the NLRB’s office. In his 2011 congressional testimony, King said the board had been acting with a “zeal” that violated the Administrative Procedures Act, the law governing federal agency rulemakings.
“Unfortunately, the present board majority, controlled by the party occupying the White House, appears to be significantly deviating from past practice and self-imposed restraint,” King said.
The “activist nature” of the board raised “substantial legal and policy issues” that presented a “clear need for close congressional scrutiny of its budget,” he told lawmakers.
James Sherk, labor policy analyst for the conservative Heritage Foundation, seconded the assessment and said that was why King should serve on the board.
“King is a highly qualified lawyer with a deep understanding of the proper role of the NLRB, as well as how badly the Obama board has departed from it,” Sherk said.
