[Senate Hearing 113-808]
[From the U.S. Government Publishing Office]
S. Hrg. 113-808
HEARING ON NATIONAL LABOR RELATIONS BOARD NOMINEES
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE NOMINATIONS OF KENT YOSHIHO HIROZAWA, OF NEW YORK, AND
NANCY JEAN SCHIFFER, OF MARYLAND, BOTH TO BE A MEMBER OF THE NATIONAL
LABOR RELATIONS BOARD
__________
JULY 23, 2013
__________
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland
PATTY MURRAY, Washington
BERNARD SANDERS (I), Vermont
ROBERT P. CASEY, JR., Pennsylvania
KAY R. HAGAN, North Carolina
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
SHELDON WHITEHOUSE, Rhode Island
TAMMY BALDWIN, Wisconsin
CHRISTOPHER S. MURPHY, Connecticut
ELIZABETH WARREN, Massachusetts
LAMAR ALEXANDER, Tennessee
MICHAEL B. ENZI, Wyoming
RICHARD BURR, North Carolina
JOHNNY ISAKSON, Georgia
RAND PAUL, Kentucky
ORRIN G. HATCH, Utah
PAT ROBERTS, Kansas
LISA MURKOWSKI, Alaska
MARK KIRK, Illinois
TIM SCOTT, South Carolina
Pamela J. Smith, Staff Director
Lauren McFerran, Deputy Staff Director and Chief Counsel
David P. Cleary, Republican Staff Director
(ii)
CONTENTS
__________
STATEMENTS
TUESDAY, JULY 23, 2013
Page
Committee Members
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Alexander, Hon. Lamar, a U.S. Senator from the State of
Tennessee, opening statement................................... 3
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 15
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 16
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin.. 18
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 20
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 22
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina. 25
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 27
Witnesses
Hirozawa, Kent Yoshiho, B.A., J.D., Hastings-on-Hudson, NY....... 5
Prepared statement........................................... 7
Schiffer, Nancy Jean, B.A., J.D., Annapolis, MD.................. 8
Prepared statement........................................... 10
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Response by Kent Yoshiho Hirozawa to questions of:
Senator Alexander........................................ 32
Senator Enzi............................................. 34
Senator Burr............................................. 35
Senator Isakson.......................................... 36
Senator Hatch............................................ 37
Senator Scott............................................ 37
Response by Nancy Jean Schiffer to questions of:
Senator Alexander........................................ 39
Senator Enzi............................................. 41
Senator Burr............................................. 41
Senator Isakson.......................................... 43
Senator Hatch............................................ 44
Senator Scott............................................ 47
(iii)
HEARING ON NATIONAL LABOR RELATIONS BOARD NOMINEES
----------
TUESDAY, JULY 23, 2013
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 10:06 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
chairman of the committee, presiding.
Present: Senators Harkin, Casey, Franken, Bennet, Baldwin,
Murphy, Warren, Alexander, Enzi, Isakson, Hatch, and Scott.
Opening Statement of Senator Harkin
The Chairman. The Committee on Health, Education, Labor,
and Pensions will please come to order.
Today's hearing is the result of a bipartisan agreement
that was reached to allow for a fully confirmed National Labor
Relations Board for the first time in over a decade. A fully
confirmed, fully functional Board will be a huge step forward
for workers and employers in our country. Indeed, I hope that
this agreement brings a new beginning for the Board so that we
can ratchet down the political rhetoric that seems to surround
this agency and instead let the dedicated public servants who
work there do their jobs.
The NLRB is an agency that is absolutely critical to our
country and to our economy and our middle class. 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 non-
union workers alike, the Act provides essential protections and
gives workers a voice in the workplace, allowing 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. 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've been treated unfairly and denied the
basic protections that the law provides.
Thus, the Board plays a vital role in vindicating workers'
rights. In the past 10 years--I say 10 years, and that
transcends both Republican and Democratic administrations--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 and pay were
violated.
The Board doesn't just protect the rights of workers and
unions. It also provides relief and remedies to our Nation's
employers. The Board is an employer's only recourse if, for
example, a union commences a wildcat strike or refuses to
bargain in good faith during negotiations. The NLRB also helps
numerous businesses resolve disputes efficiently. By preventing
labor disputes that could disrupt our economy, the work that
the Board does is vital to every worker and every business
across the Nation.
Confirming these nominees is vitally important because in
the absence of Senate action, the Board will lose a quorum in
August and will be effectively forced to shut down. That's more
than an administrative headache. It's a tragedy that denies
justice to working men and women across the country.
It affects workers like Dave Preast, a union coal miner in
West Virginia who was refused a job when a new company
purchased the mine where he had previously been working. The
NLRB, with panels including both Democrats and Republicans, has
ruled twice that the new company's refusal to hire Dave and 84
of his fellow union supporters was illegal and violated their
rights under the National Labor Relations Act.
But Dave and his colleagues have been waiting over 8 years
for justice. Three of his co-workers, sadly, have passed away
during this period. Dave has a 16-year-old son who has needed
several surgeries for a life-threatening heart condition. His
son's healthcare costs would have bankrupted the family if the
surgeries hadn't been covered through the State's CHIP program
and Medicaid.
Dave is currently doing odd jobs to make ends meet and take
care of his family. Keep in mind, twice the Board said that he
had been unjustly denied a job. However, without the
enforcement of his reinstatement remedy from the Board, he'll
be forced to live on $500 a month when he retires. Like many
other miners, Dave just wants to go back to work. He has
attempted to find other mining jobs, but when he interviews and
the company finds out how much union time he had accumulated,
that pretty much ends his chance of a job.
And let's be clear about why Dave and the other coal miners
were not hired. They were not hired because of their previous
union activities. That's against the law. It's not fair, it's
not right, and it's illegal. That's why we need a strong NLRB.
Today's nominees will help us restore the Board to its full
strength and capacity. They both come from diverse backgrounds
and are deeply steeped in labor and employment law. Their rich
experiences will serve them well at the Board, and they deserve
to be confirmed with strong bipartisan support.
I look forward to hearing their testimony today and to
moving them expeditiously through this committee. And I might
say that under our agreement, the committee will meet in
executive session tomorrow to vote on these nominees.
With that, I'll turn to our Ranking Member, Senator
Alexander.
Opening Statement of Senator Alexander
Senator Alexander. Thanks, Mr. Chairman, and welcome to the
two nominees.
Thank you for being here, Mr. Hirozawa and Ms. Schiffer.
The hearing is about nominees whose job it is to be judges,
not advocates. That's what the Board members of the National
Labor Relations Board are supposed to do. The National Labor
Relations Act talks about the job of the Board being to
prescribe the legitimate rights of both employees and employers
and their relations affecting commerce, which suggests a high
level of impartiality.
Former Senator Baker used to tell the story of the mountain
judge in Tennessee who, when the lawyers appeared before him
one morning, said, ``Boys, just give me a little bit on the
law. I had a phone call last night, and I pretty well know the
facts.'' That was the kind of impartiality they had in that
county in Tennessee at the time.
That's what we hope we don't have at the National Labor
Relations Board. We want you and the other three nominees, if
you're confirmed--we want people to be able to approach you in
a way that causes them actually to know and believe that you
haven't decided the case before they come, and I know you know
that. But I think that's what, for me, this hearing is about. I
want to make sure the Board's mission is carried out without
any private agenda, such as increasing unionization rates
without regard for employees' freedom to choose whether or not
to form a union.
We've got plenty of information about you. We have the
committee application, which all Senators received yesterday.
That includes both public and private financial information.
Last week, we distributed to all Senators biographical and
other information about your writings. Today, we have the
opportunity to ask questions. Today, we also received the
government's ethics information, so all Senators have that.
We will have a chance not only to discuss today, but to
vote tomorrow, and then I'm sure there will be written
questions that will come to you from Senators. I would hope
that you'll be mindful of the fact that we hope to proceed to
an up or down vote sometime next week. We want to make sure
that all Senators have a chance to see what the result of this
hearing is, what the result of the markup is, and what your
responses are to any questions that might come. So the more
rapidly you can get those in, the better.
If you're approved tomorrow, I don't expect there would be
a vote in the Senate, in any event, before next week. So
Senators would have that time to make their decisions.
Senator Harkin referred to the fact that this proceeding is
a little unusual because it comes as a result of an agreement.
It's an agreement about the President's ability to use recess
appointments. We now have three Federal courts that have found
that the President violated the Constitution by making recess
appointments to the NLRB when the Senate wasn't in recess.
One was the Noel Canning case in January 2013. One, more
recently, was a Fourth Circuit case just last week, on
basically the same issue, and then a related case in May of
this year in the Third Circuit Court of Appeals. So that's 3 to
0.
I don't intend here to re-litigate the whole issue. We've
had plenty of debates about it both here in the committee and
on the floor. But it's a very important issue. Under our
constitutional separation of powers and checks and balances,
the President has the right to nominate, and the Senate has the
power to advise and consent. The founders did not want an
imperial presidency, and they created a check on the
presidency, and that's one of the most important and certainly
the best known check that we have.
I would think after these three Federal courts' decisions
and after the Senate's rejection of the nomination of two
nominees--or the President's withdrawal, I should say, at the
request of the Senate because of the recess appointment
question, I think it's fair to say that any president in the
future would not use his or her recess appointment power at a
time when the Senate was not in recess, and that the Senate,
not the President, would decide when it was in recess.
Hopefully, as a result of this discussion, that issue is
settled. And I think that's an important issue.
The actions the unconstitutionally appointed NLRB members
have taken have left quite a mess for citizens who rely on this
agency. There were more than 1,000 cases decided when there was
not a valid quorum according to the law as decided by those
three appellate courts. That leaves thousands of employees,
unions, and employers in limbo wondering whether they should
comply with a particular decision.
By moving ahead on these nominations, hopefully, we will
have a vote on the Senate floor shortly. And that may result in
an ability to put a stop to that uncertainty and a misuse of
taxpayer resources.
The most important characteristic, as I mentioned, and what
I will be looking for in this discussion is impartiality. In
recent years, I'm afraid the NLRB has been moving away from
that level playing field or that impartiality. The number of
policy changes and reversals that have come out of the NLRB
under this administration have caused, in my judgment, great
confusion. One labor law professor at a major university
recently said that she can't even use the most recent textbook.
She has to resort to handing out NLRB decisions instead.
They're coming out so rapidly.
The NLRB has ventured into new territory with two efforts
at rulemaking, both of which have been stalled by the Federal
courts. They've gone into the legal obligation of employers to
withhold dues from employees' paychecks even when there is no
valid collective bargaining agreement in place. The validity of
arbitration provisions in employment contracts, the legality of
numerous well-
intentioned employee handbook provisions, the rules governing
employee discipline when there is no valid collective
bargaining agreement in place--these are things the NLRB has
sought to change, as well as other precedents and rules.
The intent of all of this seems to me to tilt the playing
field in favor of organized labor, which is not the directive
of the statute, and which is not my definition of impartiality.
So fairness and impartiality is what I think we should all be
looking for in any NLRB nominee.
I look forward to today's questioning, and I thank you both
for your willingness to serve.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Alexander.
We'll proceed to our testimonies. Both of your written
testimonies will be made a part of the record in their
entirety. I read them over last evening. They're excellent
statements. We'll start with Mr. Hirozawa and then Ms.
Schiffer. We'll ask you to proceed. Take 5 to 7 minutes and
then we'll get into our questions.
Mr. Kent Hirozawa has served as Chief Counsel to the
National Labor Relations Board Chairman Mark Pearce since 2010.
Before joining the NLRB, Mr. Hirozawa was a partner in the New
York law firm, Gladstein, Reif and Meginniss, where he advised
clients on a variety of labor and employment law matters. Mr.
Hirozawa also served as a field attorney for the NLRB from 1984
to 1986. He received his B.A. from Yale University and a Juris
Doctor from New York University School of Law.
Nancy Schiffer was associate general counsel to the AFL-CIO
from 2000 to 2012. Prior to that, she was deputy general
counsel to the United Auto Workers. Earlier in her career, Ms.
Schiffer was a staff attorney in the Detroit Regional Office of
the NLRB. Ms. Schiffer received her B.A. from Michigan State
University and her Juris Doctorate from the University of
Michigan Law School.
My congratulations to both of you. You have sterling
records and careers, and we, I think, are just fortunate to
have you willing to serve on the NLRB.
We'll start with you, Mr. Hirozawa. Please take 5 to 7
minutes. Next we'll go to Ms. Schiffer, and then we'll open it
up for questions.
Welcome.
STATEMENT OF KENT YOSHIHO HIROZAWA, B.A., J.D., HASTINGS-ON-
HUDSON, NY
Mr. Hirozawa. Chairman Harkin, Ranking Member Alexander,
and members of the committee, thank you for the opportunity to
appear before you today. I am honored and humbled to be
considered for a position as a member of the National Labor
Relations Board. This is something that I could not have
imagined as a young field attorney with the Board nearly 30
years ago.
It has also been pointed out to me that if I am confirmed,
I would be the first Asian-American member of the Board. That,
of course, would be a great honor. And it is a tremendous honor
to be introduced by Chairman Harkin, one of the greatest
champions of the American worker in the history of the U.S.
Senate.
Mr. Chairman, thank you for your kind remarks.
If I may, I would like to start by telling you a little bit
about where I come from. My father was born and raised on a
sugar cane plantation on the Island of Kauai in what was then
the Territory of Hawaii. He and most of his brothers enlisted
in the U.S. Army during World War II and went to school on the
GI bill.
My mother grew up on the other side of the tracks. Her
father and grandfather were surgeons who came to Hawaii from
Japan and helped to found the Japanese Charity Hospital in
Honolulu. My parents met at the University of Hawaii, got
married, and went to grad school at Minnesota and Wisconsin. My
father then took a job as a research chemist with the Wyandotte
Chemical Company in Wyandotte, MI. He had a long and fulfilling
career there with many scientific papers and hundreds of
patents to his credit.
One of the distinct memories I have of my father's time
with the company, however, has nothing to do with science.
Every once in a long while, he would pack a suitcase with
enough clothes for a couple of weeks and take it to work. The
reason was that there might be a strike that night. As a
salaried employee, he would be responsible for helping to keep
the plants running for as long as the strike lasted.
Naturally, this was very interesting to us kids. But he did
not imbue it with any drama. It was just part of the job.
My mother also had a long and fulfilling career as a
teacher and beloved member of the community at the Roeper
School in Bloomfield Hills, MI. They are both retired now and
are unable to be here today, but it is because of their
examples of decency and generosity, and their respect for the
values of hard work and playing by the rules that they passed
on to their children, that I have been able to achieve what I
have. So thanks, Mom and Dad.
I was born in Wyandotte and grew up in southeastern
Michigan. I went away to college at Yale and later to law
school at NYU. At NYU, in addition to getting a terrific legal
education, I met Lynn Kelly, a lovely young woman from
Minnesota. We have been married for over 25 years, and she is
here today with our two wonderful children, Nora and Miles.
After a judicial clerkship, I started my career as a field
attorney with the Board's Manhattan regional office. After a
few years, I left to go into private practice, but not before
gaining a deep appreciation for the importance of the agency's
work, and a deep respect for the quality and dedication of the
agency's employees.
After over 20 years as a partner with a New York City labor
and employment law firm, I decided to return to the agency when
Mark Pearce asked me to serve as his chief counsel. The 3-years
that I have spent at headquarters have been a tremendous
learning experience and have given me even deeper appreciation
for the staff's talents, professionalism, and commitment to
fairness and to the goals of the National Labor Relations Act.
If I am given the opportunity to serve as a Board member, I
think that my decades of practice as a labor lawyer, both
within and before the agency, will serve me well. And I think I
would also be helped by the perspectives gained from my 20
years as a co-owner of a small business. With my partners, I
had to deal with the challenges of making payroll, paying the
rent, providing health insurance for our employees, and staying
competitive in our market. I have had to discharge employees,
and I know that it is always difficult and never taken lightly.
I believe that these experiences will help me to see all
sides of the workplace disputes that come before the Board.
Back when I was a Board agent in Region 2, I once heard another
employee described as ``pro-Act,'' not pro-union or pro-
management, but pro-Act, dedicated solely to advancing the
policies and purposes of the National Labor Relations Act
without regard to the identities or alignments of the parties.
That has always struck me as an apt term of praise for an
employee of the Board, and that is what I will aspire to if I
am confirmed as a member of the Board. I pledge to dedicate
myself to the fair and even-handed enforcement of the commands
of the Act, consistent with the Act's purpose of maintaining
industrial peace.
Thank you for the opportunity to appear before you today,
and I look forward to your questions.
[The prepared statement of Mr. Hirozawa follows:]
Prepared Statement of Kent Yoshiho Hirozawa, B.A., J.D.
Chairman Harkin, Ranking Member Alexander, and members of the
committee, thank you for the opportunity to appear before you today. I
am honored and humbled to be considered for a position as a member of
the National Labor Relations Board. This is something that I could not
have imagined as a young field attorney with the Board nearly 30 years
ago. It has also been pointed out to me that if I am confirmed, I would
be the first Asian-American member of the Board. That, of course, would
be a great honor.
I would like to start by telling you a little about where I come
from. My father was born and raised on a sugar cane plantation on the
island of Kauai, in what was then the Territory of Hawaii. His father
had come from Japan as a contract laborer around the turn of the
century, and his mother as a picture bride some years later. He and
most of his brothers made it off the plantation and got through college
and grad school as a result of World War II. They enlisted in the U.S.
Army, came back after the war, and went to school on the GI bill.
My mother grew up on the other side of the tracks. Her father and
grandfather were surgeons who came to Hawaii from Japan and helped to
found the Japanese Charity Hospital in Honolulu.
My parents met at the University of Hawaii, got married, and went
to grad school at Minnesota and Wisconsin. My father then took a job as
a research chemist at the Wyandotte Chemical Company, later the BASF
Wyandotte Corporation, in Wyandotte, MI. He had a long and fulfilling
career there, with many scientific papers and hundreds of patents to
his credit.
One of the distinct memories I have of my father's time at the
company, however, has nothing to do with science. Every once in a long
while, he would pack a suitcase with enough clothes for a couple of
weeks and take it to work. The reason was that there might be a strike
that night. As a salaried employee, he would be one of those
responsible for keeping the plants running, behind the locked gates,
for as long as the strike lasted. Naturally, this was very interesting
to us kids, but he did not imbue it with any drama; it was just part of
the job.
My mother also had a long and fulfilling career, as a teacher and
beloved member of the community at the Roeper School in Bloomfield
Hills, MI. They are both retired now and are unable to be here today,
but it is because of their examples of decency and generosity, and
their respect for the values of hard work and playing by the rules that
they passed on to their children, that I have been able to achieve what
I have. So thanks, Mom and Dad.
I was born in Wyandotte and grew up in southeastern Michigan. I
went away to college at Yale and then, after a few years in the real
world, I went to law school at NYU. At NYU, in addition to getting a
terrific legal education, I met a lovely young woman from Minnesota,
Lynn Kelly. Lynn is now the executive director of the City Bar Justice
Center, where she coordinates the pro bono programs of the New York
City Bar Association. We have been married for over 25 years, and she
is here today with our two wonderful children, Nora and Miles.
After a judicial clerkship, I started my career as a labor lawyer
as a field attorney with the Board's Manhattan regional office. After a
few years, I left to go into private practice, but not before gaining a
deep appreciation for the importance of the agency's work, and a deep
respect for the quality and dedication of the agency's employees. So
after over 20 years as a partner with a New York City labor and
employment law firm, I decided to return to the agency when Mark Pearce
asked me to serve as his chief counsel. The 3-years that I have spent
at headquarters have been a tremendous learning experience and have
given me even deeper appreciation for the staff 's talents,
professionalism, and commitment to fairness and to the goals of the
National Labor Relations Act.
If I am given the opportunity to serve as a Board member, I think
that my decades of practice as a labor lawyer, both within and before
the agency, will serve me well. And I think I would also be helped by
the perspectives gained from my time in the world of business and work.
In addition to my work as a lawyer, I have worked in a chemical plant
and a printing plant, I have cleaned offices and pumped gas, I have
been a busboy, a bartender and an unemployment claims examiner. I was
also, for 20 years, a co-owner of a small business. With my partners, I
had to deal with the challenges of making payroll, paying the rent,
providing health insurance for our employees, and staying competitive
in our market. I was the partner responsible for associate recruitment,
hiring, compensation and evaluation, and the main trustee of the firm's
retirement plan. I have had to discharge employees, and I know that it
is always difficult and never taken lightly. I believe that all of
these experiences will help me to see all sides of the workplace
disputes that come before the Board.
Back when I was a Board agent in Region 2, I once heard another
employee described as ``pro-Act.'' Not pro-union or pro-management, but
pro-Act, dedicated solely to advancing the policies and purposes of the
National Labor Relations Act without regard to the identities or
alignments of the parties. That has always struck me as an apt term of
praise for an employee of the Board. And that is what I will aspire to
if I am confirmed as a member of the Board: I pledge to dedicate myself
to the fair and even-handed enforcement of the commands of the Act,
consistent with the Act's purpose of maintaining industrial peace.
Thank you for the opportunity to appear before you today and I look
forward to your questions.
The Chairman. Thank you very much, Mr. Hirozawa. I knew you
were a smart guy, but I didn't realize how smart you were to
marry a woman from Minnesota. My wife is from Minnesota. That's
why I say that.
Mr. Hirozawa. Best thing I ever did.
The Chairman. There you go. Same for me.
Ms. Schiffer, welcome and please proceed.
STATEMENT OF NANCY JEAN SCHIFFER, B.A., J.D.,
ANNAPOLIS, MD
Ms. Schiffer. Thank you, Chairman Harkin, Ranking Member
Alexander, and members of the committee. I am honored beyond
words to be here before you today as a nominee to be a member
of the National Labor Relations Board.
First, I would like to introduce my husband, Goldwin Smith,
who is here today and without whose support I would not be. We
will celebrate 32 years of marriage next month. Our daughter,
Amelia Howerton, and her husband, Grant, could not be here
today because they both just started new jobs in California.
And our son, Michael, I know, is here with us in spirit.
I grew up in a small town in southwestern Michigan of about
3,500 people. My mother was a home economics teacher, and my
father was a pilot. He taught people how to fly. That was his
passion. They were both raised on dairy farms in central
Michigan.
My grandparents' farm was designated a centennial farm,
owned and farmed for 100 years by the same family, in 1982. My
grandparents are in the Michigan Farmers' Hall of Fame. I spent
my summers on that farm. I helped with haying, and I showed
cows at the county fair in 4-H and once at the Michigan State
Fair.
It was my dream to go to law school, and my parents
supported that dream at a time when their friends thought it
was a waste of money to send their daughters to college at all.
When I went to law school, to the University of Michigan, I did
not know that I would become a labor lawyer. But while I was
there, I represented two women, non-union university workers,
in a management review process.
The first described to me how she made less than a male
colleague who was doing the same work. I only talked with her
on the phone, but I wrote a letter on her behalf, and she got a
very sizable salary increase, and I was amazed.
Next, I represented a woman who had worked in her
department for 20 years, but was passed over for a supervisory
position in favor of a recent graduate who happened to be white
and male. She was neither. After a hearing before a faculty
committee, she got a promotion, and I had fallen in love with
labor law.
After law school, I worked at the Detroit Regional Office
of the National Labor Relations Board, Region 7, the busiest
regional office at that time. I conducted representation
elections for workers and served as a hearing officer in cases
involving election issues. I also investigated and prosecuted
unfair labor practice cases against both unions and employers.
I filed briefs to the Board. I brought picket line injunction
actions against unions in Federal court.
While I was there, I received a Certificate of Commendation
from then-General Counsel John Irving. Never, for 1 second,
during my work at the Detroit Regional office did I think that
one day I would have the honor of being considered to serve as
a member of the Board.
I loved working for the NLRB, in large part because I had
the opportunity to work under the tutelage of Regional Director
Bernard Gottfried. He was revered in the region, and there is
still a memorial symposium every year in his honor. He had a
deep knowledge and understanding of the law and was open to and
respectful of all viewpoints and positions presented to him. He
made sure he knew every fact and every aspect of a case before
he made a decision on whether to issue a complaint.
Most importantly, he cared deeply about the impact his
decisions would have on the workplace, on the employer
involved, and on the workers. He knew that real people would be
affected by what he did, and he worked very hard to make sure
his decisions were fair and honest. He was a role model, and I
will strive to follow his example should I become a member of
the Board.
I also worked at a private law firm in Detroit that
represented labor unions and workers and then became a staff
lawyer for the International Union, United Auto Workers, in
1982. I served as deputy general counsel at the UAW for 2
years, handling the day-to-day administration of the UAW Legal
Department, before coming to Washington, DC, in 2000, to join
the General Counsel's Office of the AFL-CIO, where I advocated
for their positions, including before Congress.
My work on NLRA issues over the years has given me a deep
appreciation for the work that the Board does and how important
it is to all involved, workers, employers, labor unions, and
their communities, and how much it matters that disputes get
resolved fairly and in a timely manner. As a result of my work
as a Board attorney and as a litigant, I have been repeatedly
impressed with the dedication of the agency's staff, with their
sense of pride of purpose and their hard work to make sure the
agency fulfills its mission.
I can assure you that I understand the importance of this
office and how critical it is that Board members be neutral
arbiters of the law. If I am honored to serve as a member of
the National Labor Relations Board, I pledge to live up to the
example of my formative mentor, Bernard Gottfried. I will
approach every decision with an open mind, give every position
very serious consideration, and always be guided by the mission
of the agency and the impact a decision will have on those
affected.
I look forward to working with my fellow Board members to
develop a collegial and productive deliberative process, to
learn from their experiences and their points of view, and to
fairly and faithfully enforce the law.
Thank you for the opportunity to appear before you today. I
look forward to your questions.
[The prepared statement of Ms. Schiffer follows:]
Prepared Statement of Nancy Jean Schiffer, B.A., J.D.
Thank you Chairman Harkin, Senator Alexander, and members of the
committee. I am honored beyond words to be here before you today as a
nominee to be a member of the National Labor Relations Board.
First, I would like to introduce my husband Goldwin Smith, who is
here today and has always been my strongest supporter--we will
celebrate 32 years of marriage next month. Our daughter Amelia Howerton
and her husband Grant could not be here today as they both just started
new jobs in California. Our son Michael, I know, is here with us in
spirit.
I grew up in a small town in southwestern Michigan--3,500 people.
My mother was a home economics teacher and my father was a pilot--he
taught people how to fly. They were both raised on dairy farms in
central Michigan. My grandparents' farm was designated a centennial
farm--owned and farmed for 100 years by the same family--in 1982. My
grandparents are in the Michigan Farmers' Hall of Fame. I spent my
summers on that farm. I helped with haying and I showed cows at the
county fair in 4-H--and once at the Michigan State Fair.
It was my dream to go to law school and my parents supported that
dream at a time when their friends thought it was a waste of money to
send their daughters to college at all. When I went to law school, to
the University of Michigan, I did not know that I would become a labor
lawyer.
But while I was there, I represented two women--non-union
university workers--in a management review process. The first described
how she made less than a male colleague who did the same work. I only
talked with her on the phone, but I wrote a letter on her behalf and
she got a very sizable salary increase--I was amazed. Next, I
represented a woman who had worked in her department for 20 years, but
was passed over for a supervisory position in favor of a recent
graduate who happened to be white and male--she was neither. After a
hearing before a faculty committee, she got a promotion and I had
fallen in love with labor law.
After law school, I worked at the Detroit Regional Office of the
National Labor Relations Board, Region 7--the busiest regional office
at that time. I conducted representation elections for workers and
served as a Hearing Officer in cases involving election issues. I also
investigated and prosecuted unfair labor practice cases against both
employers and unions, filed briefs to the Board, and brought picket
line injunction actions against unions in Federal court. While there, I
received a Certificate of Commendation from then-General Counsel John
Irving. Never, for one second, during my work at the Regional office in
Detroit did I ever think that one day I would have the honor of being
considered to serve as a Board member.
I loved working for the NLRB, in large part because I had the
opportunity to work under the tutelage of Regional Director Bernard
Gottfried. He was revered in the region and there is still a memorial
symposium every year in his honor. He had a deep knowledge and
understanding of the law and was open to and respectful of all
viewpoints and positions presented to him. He made sure he knew every
fact and every aspect of a case before he made a decision on whether to
issue a complaint. Most importantly, he cared deeply about the impact
his decisions would have on the workplace, on the employer involved,
and on the workers. He knew that real people would be affected by what
he did and he worked very hard to make sure his decisions were fair and
honest. He was a role model and I will strive to follow his example
should I become a member of the Board.
I also worked for a private law firm in Detroit that represented
labor unions and workers and then became a staff lawyer for the
International Union, UAW, in 1982. I served as Deputy General Counsel
at the UAW for 2 years, handling the day-to-day administration of the
UAW Legal Department, before coming to Washington, DC, in 2000, to join
the General Counsel's Office of the AFL-CIO, where I advocated for
their positions, including before Congress.
My work on NLRA issues over the years has given me a deep
appreciation for the work that the Board does and how important it is
for all involved--workers, employers and labor unions--and how much it
matters that disputes get resolved fairly and in a timely manner. As a
result of my work as a Board attorney and as a litigant, I have been
repeatedly impressed with the dedication of the Agency's staff, with
their sense of pride of purpose and their hard work to make sure the
Agency fulfills its mission.
I can assure you that I understand the importance of this office
and how critical it is that Board members be neutral arbiters of the
law. If I am honored to serve as a member of the National Labor
Relations Board, I pledge to live up to the example of my formative
mentor, Bernard Gottfried: I will approach every decision with an open
mind and give every position serious consideration; and in every
decision I will be guided by the mission of the Agency and the impact
of a decision on all affected. I look forward to working with my fellow
Board members to develop a collegial and productive deliberative
process, to learn from their experiences and their points of view, and
to fairly and faithfully enforce the law.
Thank you for the opportunity to appear before you today and I look
forward to your questions.
The Chairman. Thank you very much, Ms. Schiffer. We'll
start a round of 5-minute questions.
First, I want to note for the record the tremendous
background that both of you bring to this, Ms. Schiffer having
worked in the regional office so many years ago and Mr.
Hirozawa being with Mr. Pearce for all these years as his
counsel. I think it's very clear that you both bring a
tremendous background and a wealth of information and knowledge
to this position on the NLRB.
I have a couple of questions. I'll start with Ms. Schiffer.
As you pointed out, as the counsel for the AFL-CIO, you
advocated for their positions. That's what a good lawyer does.
That's what a counsel does.
Ms. Schiffer. I tried to.
The Chairman. That's right. So in the past--and I might
make it very clear for the record that you and I have worked
together on issues in the past in terms of labor laws.
Specifically, you had advocated for a bill that I sponsored
called the Employee Free Choice Act. This legislation had three
major provisions. One, it allowed workers to form a union
through the use of signed authorization cards rather than a
formal election, what was called card check.
Second, it created a mechanism to ensure that workers who
formed a union were able to get a first contract through
binding arbitration. And, third, it strengthened the remedies
available when there are violations of the National Labor
Relations Act.
I've been involved in these issues for most of my adult
life, both here in the Senate and in the House before that. I
felt strongly about this legislation. Many of my colleagues do.
I still would like to make it clear that I'd like to see these
reforms enacted. I'm speaking for myself, that I'd like to see
these reforms enacted, and I think a lot of my colleagues would
like that also. But I want to make some things very clear.
Ms. Schiffer, could the Board, the NLRB, implement any
provisions of the Employee Free Choice Act that I just
described by using its rulemaking authority?
Ms. Schiffer. They could not. It would require
congressional action.
The Chairman. I want to make it very clear for the record.
Congress would have to pass a law to make these changes. Is
that correct?
Ms. Schiffer. Right. The provisions of the Employee Free
Choice Act require congressional action.
The Chairman. Which, of course, I hoped we would do--that
issue--and we never really got to the merits of that. But I'm
not going to bore the people here and the committee with a
rehash of that.
Mr. Hirozawa, the current Board has been criticized by many
of my colleagues on the Republican side, I might say, as being
excessively partisan or somehow out of step with previous
Boards and Board traditions. I know that Chairman Pearce has
proactively taken steps to foster more collaboration among the
Board's members, and I have met with him periodically about
that.
Mr. Hirozawa, how would you respond to that
characterization of both the Board--the accusations, but also
Chairman Pearce's actions? Have Chairman Pearce's efforts led
to more consensus-based decisionmaking?
Mr. Hirozawa. Yes, I think they have, and he has made
tremendous efforts in that direction. It's important to
recognize the value of having a diversity of viewpoints on the
Board, and that is and has been very valuable. But it takes
some work to arrive at a consensus, and he has taken the lead
in encouraging discussion among Board members, both formally
and informally, both before and after formal votes, in order to
try and arrive at a result that everyone can live with.
One of the concrete things that he's done is reinstituting
case meetings at which all members of the Board sit down face
to face to discuss cases. And that is something which, over the
history of the Board, has not been the norm. He has also
participated in and encouraged all members to participate in
one-on-one discussions with each other of legal issues that
they may not at least start out seeing eye-to-eye on.
The Chairman. Thank you. Some people say the Board only
protects the rights of labor unions and union workers. Could
you both tell us a little bit about how the Board protects the
rights of non-union employees?
Mr. Hirozawa.
Mr. Hirozawa. The Act, for its entire history, has always
protected the rights of employees to work together with each
other to address their terms and conditions of employment
regardless of whether there is a union involved or not. And
this goes back to the early days of the Act.
There's a Supreme Court case from the early 1960s,
Washington Aluminum, which made it very clear that employees
there in a non-unionized metal shop where there was no question
of union representation--they were just getting together to try
and address the freezing conditions in the shop. The Board
granted them a remedy, and the Supreme Court said that the
Board was right. It doesn't matter whether you have a union or
not. You are protected by the Act.
The Chairman. Do you have anything to add to that, Ms.
Schiffer?
Ms. Schiffer. Sure. Section 7 of the Act also protects
workers' rights to engage in activities for their mutual aid
and protection, and that's been interpreted for those kinds of
activities with or without a union. When I was at the NLRB in
the Detroit regional office in the late 1970s, I had a case
where a group of workers who worked for a credit card company--
at that time, it was Data Entry--and they passed around a piece
of paper at their workplace, at their tables, and wrote down a
list of grievances, and they wanted to meet with their
supervisor about these grievances. They didn't have a union.
They didn't want to have a union.
But they wanted to meet with their supervisor about this
list of grievances, and they all got fired. So they ended up at
the National Labor Relations Board, and there was a case on
their behalf. But they were workers who engaged in activities
for, ``mutual aid and protection,'' and so their right to do
that was protected by the Act.
The Chairman. Thank you both very much.
Senator Alexander.
Senator Alexander. Thanks, Mr. Chairman.
Welcome again. I appreciate the chairman's question about
the Employee Free Choice Act, because I would have asked it
myself if he had not, and I appreciate the answer as well. Let
me ask a similar question about what we call the right-to-work
law, or Section 14(b) of the Taft-Hartley Act.
In our State of Tennessee, we're one of 24 States with a
right-to-work law. We strongly support that, and it's been the
primary driver of the expansion of our auto industry over the
last 30 years. It includes both the General Motors plant, which
has a United Auto Workers partnership, and it includes plants
like Nissan and Volkswagen, which do not, and hundreds of
suppliers. So it's very important to us that the right-to-work
law be protected.
To each of you, I'll ask the same sort of question we ask
about what we call the card-check law, or what Senator Harkin
calls the Employee Free Choice Act, which has to do with the
secret ballot. Do you believe that the right-to-work law can be
changed, that the freedoms granted to workers under the right-
to-work law can be changed by members of the National Labor
Relations Board, or does that require an act of the Congress?
Ms. Schiffer.
Ms. Schiffer. What you're describing is in section 14(b),
as you mentioned, of the National Labor Relations Act. It's
statutory. It cannot be changed by the members of the National
Labor Relations Board. It would require congressional action to
make changes in that area. It's fairly straightforward in the
Act.
Senator Alexander. Mr. Hirozawa.
Mr. Hirozawa. Yes, that's absolutely clear. The right-to-
work is a matter for Congress and the States to decide. The
Board has nothing to say about it.
Senator Alexander. Does that then mean that you would not
consider it an unfair labor practice if an employer in a non-
right-to-work State sought to expand in a right-to-work State?
Mr. Hirozawa. I think that as a general matter, that
wouldn't make out a violation. But I think that any case that
might come before the Board would have to be considered on the
facts of the particular case, and it's very difficult to draw a
conclusion from a broad hypothetical.
Senator Alexander. Ms. Schiffer.
Ms. Schiffer. That, in and of itself, would not be a basis
for a violation. There might be a violation, given additional
circumstances and facts that aren't in what you just posed.
Senator Alexander. It wouldn't be a prima facie case of a
violation.
Ms. Schiffer. Not the way that you just said it.
Senator Alexander. It's not a far-fetched example. We just
had a pretty big argument about the NLRB's Acting General
Counsel's actions with the Boeing case, which sent shudders
through employers all over the country. Let me ask you one
other question and go back to the impartiality thing.
Ms. Schiffer, you've been one of the senior members of the
AFL-CIO at a time when, in 2007, the National Organizing
Director, Stewart Acuff, said the Labor Board should be closed
for renovations until a new Board could be appointed by a new
president, and the director of the Voice@Work Campaign said
it's time to shut the Board down and close it for renovation.
You've testified for what we call the card-check legislation.
You've been a very prominent and effective advocate.
Mr. Hirozawa, you wrote a 2008 article in the AFL-CIO
Lawyers Coordinating Committee newsletter referring to the
union movement as, ``our movement.''
You've made some statements to reassure employers of your
impartiality. But what can you say to assure employers who will
come before a Board that might include you, that you will move
from the position of advocate--which you've been a pretty
fierce one--on behalf of labor to an impartial judge? How could
you assure an employer that when they come before the Board, if
you're on it, that you'll do that?
Ms. Schiffer. It's an interesting way that you've posed the
question, because it reminded me that when I went from the NLRB
as a field attorney for the NLRB to private practice, clients
that would come before us, when I was assigned their case, I
knew were thinking and would sometimes say, ``How do I know
that you're going to be an advocate for me? You just came from
the National Labor Relations Board.''
So I appreciate that these are two different roles,
advocate and neutral arbiter. But I believe in the Act, and I
want all litigants who come before the Board to feel that they
have been dealt with fairly and honestly. You mentioned that in
your statement, and I'm committed to that. I think it's
important that that happen, and that's what I will do.
I have no pre-conceived agenda. I will approach the cases
that come before me with an open mind. I will carefully
consider all the facts, the positions of the parties. I'll have
the opportunity to engage with the experience and background of
the other members, the other nominees for the National Labor
Relations Board--we have some diverse backgrounds--and an
opportunity to take advantage of the experience and the
knowledge of the career staff people. I want to make sure that
decisions that I reach are done in a fair manner and an honest
manner.
Senator Alexander. Thank you, Ms. Schiffer.
Mr. Chairman, my time is up. I don't know if Mr. Hirozawa
may want to give a short answer.
Would you like to make a short answer to that?
Mr. Hirozawa. Yes, if I might. I just want to assure you,
Senator, that I have a very clear understanding of the
difference between someone who is an advocate and someone who
is an impartial adjudicator, and I've had experience in both
roles. I think that I've been able to act appropriately in both
roles, and I promise to you and all of the other members of the
committee that I will do my absolute best to look at every case
that comes before the Board impartially and fairly and without
regard to who the parties might be.
Senator Alexander. Thanks, Mr. Chairman.
The Chairman. Thank you, Senator Alexander.
In order of appearance, we'll have the following: Senator
Warren, Isakson, Murphy, Hatch, Bennet, Scott, Baldwin, Casey,
and Franken, in that order.
Senator Warren.
Statement of Senator Warren
Senator Warren. Thank you very much, Mr. Chairman.
Welcome to Mr. Hirozawa and to Ms. Kelly, to Miles and to
Nora. I'm glad you're all here today. You must be very proud.
I also want to say welcome to Ms. Schiffer and to your
husband, Mr. Smith. It's good to see you all here.
The NLRB has a double set of duties, to resolve workplace
disputes and to monitor union elections. Both Republicans and
Democrats sit on the NLRB Board, and it is my understanding
that the overwhelming majority of your decisions are, in fact,
unanimous, that you achieve unanimous decisions,
notwithstanding the fact that there are certainly some times
that there are disagreements.
But the Nation respects the rule of law and due process,
and the NLRB gives an opportunity to employers and employees to
get their disputes resolved and to make sure that elections are
free and fair for unions. And I want to say I'm delighted to
see two very highly qualified nominees here. I think this is
great.
Mr. Hirozawa, I wanted to start by saying that as I looked
through your resume, I was very impressed by the wide range of
experience you have, starting with being a clerk on the Second
Circuit, your extensive experience in the private sector, a
wealth of experience working directly for the NLRB, in addition
to your role as chief counsel. You also served as a field
attorney, dating back to the 1980s.
What I wanted to ask you to do is take a minute or two and
describe how your experiences in these different roles, both as
a junior and a senior attorney at the NLRB, as a private
attorney, as a law clerk, will affect your performance as a
member of the Board.
Mr. Hirozawa. Thank you, Senator Warren. I think that there
are a lot of ways in which those experiences will be helpful.
In addition to what I described in my opening statement, from
my experience as a field attorney, not only am I familiar with
the quality and dedication of the employees that we have in the
field, but I know from personal experience the reality on the
ground. I know how cases are investigated, how most of them are
settled before any kind of formal proceeding. I have been a
hearing officer in representation cases, so I have a practical
understanding of how that process works.
In my work as an attorney in private practice, I'm familiar
with what lawyers and parties appearing before the National
Labor Relations Board have to contend with and what makes their
jobs easier and more difficult. And I've tried, since I've been
here at headquarters, to do things that would make it easier
for them.
Senator Warren. I appreciate it. Go ahead, but I need to
make it short so I can ask Ms. Schiffer a question, too.
Mr. Hirozawa. OK. Also, in private practice and at the
Board, I had an opportunity to work with a lot of management
attorneys who were very professional, and I've always had good
relationships with them.
Senator Warren. Thank you so much. I very much appreciate
it. Thank you.
Ms. Schiffer, it seems a little shocking to me that in 2013
we are still talking about equal pay for equal work. But
according to the Department of Labor, women earn 77 cents on
the dollar earned by men. Pay equity is an important issue for
American women, and Congress has taken good steps in the right
direction by passing the Lilly Ledbetter Fair Pay Act. I am
also proud to have co-sponsored the Paycheck Fairness Act,
which would move us further still.
But no matter what Congress does, the reality is that a
fully functioning NLRB is an essential tool to promoting pay
equity. Now, the NLRB is essential to protecting gains that
workers have achieved through collective bargaining, and that's
becoming increasingly important, because now union membership
is 45 percent women and on target for women to make up a
majority by 2020. So could you discuss very briefly how the
NLRB helps women workers who are pursuing equal pay for equal
work?
Ms. Schiffer. The NLRB has no specific jurisdiction over
pay equity or equal pay claims. But the NLRA does protect
workers' rights to be able to talk about these issues, to be
protected if they want to reach out to other workers to be able
to engage in any discussion or collective action about these
kinds of issues, and is able to provide that level of
protection for workers so that they can learn about what's
going on with themselves and their co-workers and be
knowledgeable until they can, if they decide to do so, take
collective action about those issues.
Senator Warren. Thank you very much, Ms. Schiffer. I see
that I am out of time. I want to apologize. I'm going to have
to leave. We have a Banking hearing running simultaneously.
But, again, thank you both for your willingness to serve.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Warren.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Thank you, Mr. Chairman.
Mr. Hirozawa, I want to comment that you're about to go up
for confirmation in a position that takes the role of a judge.
You have the voice of a judge--very melodic, and I just wanted
to make that comment.
Mr. Hirozawa. Thank you.
Senator Isakson. You are also chief counsel to Mr. Pearce.
Is that correct?
Mr. Hirozawa. That's right.
Senator Isakson. During the time that the Specialty
Healthcare decision was made? Is that correct?
Mr. Hirozawa. That's correct.
Senator Isakson. Could you explain to the committee why the
chairman decided to undo decades of precedent in the Specialty
Healthcare case?
Mr. Hirozawa. Senator Isakson, thank you for bringing this
subject up, because it's an important issue and it's been, with
good reason, the subject of a lot of discussion. It's been my
privilege to serve as Chairman Pearce's chief counsel at the
Board for the past several years, including when he was a
member on the Specialty Healthcare decision.
My service is governed by the ethical standards that govern
attorney-client relationships. So I'm really not in a position
to be able to discuss his particular views on that, other than
what has been expressed in detail in the decision. And I'm
constrained to let that speak for itself.
Senator Isakson. Well, in light of that answer, let me ask
your opinion on a question that doesn't involve Mr. Pearce's
opinion. In your opinion, do you agree with the Board's
decision to apply a decision concerning an acute nursing
facility to all matter of industries, including those having
nothing to do with medical health, like Bergdorf Goodman or
Macy's? In your opinion, not his.
Mr. Hirozawa. Yes, I understand the distinction. The
trouble is that in my capacity as counsel to the chairman--at
the time of that decision, he wasn't the chairman. He was a
member. But my duty is to advise him. I tell him what I think,
we discuss it, and I really can't go into what my personal
views at the time may or may not have been. And, of course, I
can't be in the position of prejudging any case that might come
before the Board in the future.
I think what I can say is that Specialty Healthcare is the
controlling decision of the Board right now. And my view of how
Board members should do the job is to show great respect for
precedent and to depart from it only on very rare occasions.
Senator Isakson. Excuse me for interrupting, but I want to
make sure my time doesn't run out. Since you can't give me a
statement on your opinion in those two cases, let me ask you
about your testimony. You talked about your father packing a
bag for 2 weeks and going to the workplace because he
anticipated a strike and a disruption of the operation of the
business. Is that correct?
Mr. Hirozawa. That's right.
Senator Isakson. If a company had 35 departments within
their facility, like a hardware store or a lumber yard or a
manufacturing company or an automobile manufacturing company--
they had 35 different departments, a shoe department, a paint
department, whatever it might be, can you imagine how
disruptive it would be if all 35 were individually organized as
a union?
Mr. Hirozawa. That would make labor relations much more
complicated, absolutely.
Senator Isakson. That's what the Specialty Healthcare
decision did, because it effectively opened the opportunity for
fragmented representation within the same entity, which, as you
stated in your own testimony of your father's experience, would
be terribly, terribly disruptive. I've got enough time for one
other quick question.
Assuming that you're confirmed, there are any number, over
1,000, I think, decisions made by the previous Board that have
been rendered invalid because of their appointment during the
recess in the circuit court decision. Do you think it would be
appropriate for you to ratify those decisions retroactively
before the U.S. Supreme Court decides on the circuit court
case?
Mr. Hirozawa. That's a question that the Board may have to
decide.
Senator Isakson. And you would be one of those Board
members.
Mr. Hirozawa. That's right. And it's something that I would
have to consider carefully. I haven't given a great deal of
thought to it at this point, and if I were to become a member,
it's something that I would need to discuss with my colleagues
and try and arrive at a sensible conclusion.
Senator Isakson. Well, I'm a little over, but since the
chairman is not listening, I'm going to take liberty.
[Laughter.]
In the interest of equal opportunity, can you answer that
question, Ms. Schiffer?
Ms. Schiffer. I agree with Kent that this is a question
that very likely will come to the new Board. And because, as
I've stated, I do not want to become a Board member with any
preconceived agenda, I wouldn't be in a position to indicate a
position on that now, and I don't have a position on that now.
I haven't been privy to all of the circumstances, the number of
cases, where they are in the process, and I just wouldn't be in
a position to answer at this point.
Senator Isakson. Thank you very much.
The Chairman. Thank you, Senator Isakson.
Senator Baldwin.
Statement of Senator Baldwin
Senator Baldwin. Thank you, Mr. Chairman and Ranking Member
Alexander and today's nominees. It's a pleasure to have you
here. I want to say how heartened I am that we are here today
and seeing this confirmation process moving forward. Our
country needs a well-functioning National Labor Relations Board
with a full slate of members, and this need is, I think,
particularly acute in my own home State of Wisconsin.
Wisconsin is, at its very core, a manufacturing State. And
during the great recession, and I would say even in the years
and perhaps decades prior to that, our manufacturing sector in
Wisconsin and certainly throughout big portions of the country
have taken a real hit. And when companies sought to close or
cut jobs or have employees take concessions, the NLRB helped to
enforce employers' duties, to bargain with organized employees,
and to try to achieve the best possible outcomes. As a result,
workers' rights were realized.
I think about the impact it would have if the NLRB were to
lose its enforcement authority. The duty to bargain would lack
teeth, and many middle class families in my State and across
the country would be harmed. I have a very broad question, sort
of looking at the Board at 50,000 feet, if you will. I'd like
each of you to comment on the role that you see the Board
playing in both vindicating the rights of working families and
their employers, and also the role in strengthening an economy
that has gone through a lot in recent years.
I'll start with you, Mr. Hirozawa.
Mr. Hirozawa. As Chairman Harkin pointed out in his
introductory remarks, the Board has a unique role in giving
American workers a place to come in order to make sure that
their ability to have something to say about the conditions
that they work under is protected. That's something that is
crucial to having a well-functioning economy, and it's
something that I think has proved its value over the 75-plus
years of the Board's existence and continues to be crucially
important.
Senator Baldwin. Thank you.
Ms. Schiffer.
Ms. Schiffer. The Act itself indicates that it was designed
to help promote industrial peace. And I believe that when it
works in a way that is fair, people view it as a neutral, and
when it is able to function in an efficient manner and be able
to expeditiously resolve labor disputes for the parties, and
when people can have clear rules about what they're supposed to
do--by rules, I mean rules of law--guidelines, and have some
certainty with that, that promotes industrial stability, and
that does help our economy.
Senator Baldwin. I know that the Board looks at individual
disputes and also oversees elections. But given this broad look
at the situation and the reference to industrial peace, what do
you think the greatest challenges are to that--what are the
biggest challenges facing businesses and workers in the 21st
century? And how are you qualified to help us address those
challenges?
Ms. Schiffer. As a member of the Board, in the capacity of
enforcing the mission of the Act, that would be what I could
do. But I know that the challenges are great in trying to work
in a global economy, trying to work to keep up with
technological changes and the advances there, and trying to
keep up with the workforce challenges and workforce demands.
All of these are very difficult problems, and there's certainly
lots more that I could mention.
But as a member of the Board, my role would be to sort of
effectuate the purposes of the Act and, to the extent that that
then helps allow people the space for resolution of labor
disputes so that they can resolve and compete and meet these
other challenges, that would be the role.
Mr. Hirozawa. The challenges are great, and the fact is
that the Board's role is actually pretty narrow. The Act is
very specific in the rights that it confers and in the powers
that it gives the Board. So there's a tremendous amount to be
done. The Board's role covers what, in some ways, I think, is a
very small slice of that. All I can say is that we all have to
do our part, and I'm committed, if I'm confirmed, to doing the
part that's been assigned to the Board.
Senator Baldwin. Thank you both for stepping forward to
meet those challenges.
The Chairman. Thank you, Senator Baldwin.
Now we'll go to Senator Hatch.
Statement of Senator Hatch
Senator Hatch. Thank you, Mr. Chairman.
I welcome both of you to the committee. We appreciate your
willingness to serve. I remember many years ago, Irving Brown
came to me, who was the international vice president of the
AFL-CIO. He had gone into Paris before the end of the second
World War in the underground and helped to win the war. And, of
course, afterwards, the Soviets had a phony trade union that
they were going to impose all over Europe, and Irving Brown
took them on and beat them, beat them at the French docks.
He was one of the people I most admired in all of my
service in the Senate. He got me involved in free trade unions
from all around the world and solidarity. It was a privilege
for me to go and meet with Lech Walesa and others in Gdansk. We
helped get them the materials that they needed to be able to
keep up their effort. It was all due to Irving Brown--helped to
formulate the National Endowment for Democracy, which is very,
very important to him and to us.
I remember one time he was over at the ILO, the
International Labor Organization, the largest U.N. affiliated
organization, and he called me, and he said, ``We need you to
come over here.'' He said, ``They've got a resolution against
Israel, and if it passes, we have to pull out of the ILO, which
would be catastrophic for the world.''
So at his request, I flew over there, and he took me to all
the non-aligned delegations. And I left before the vote, but
they had a secret ballot vote, and we won. I admired him as
much as anybody I've met in politics.
Lane Kirkland, the former head of the AFL-CIO, said to me
one day, ``Senator, if only you were as good in domestic policy
as you are in foreign policy,'' and I said, ``Lane, I was
thinking precisely the same thing about you.'' And he went,
``Oh, oh,'' and then caught on to it and actually laughed about
it.
But I have a lot of respect for what you're trying to do.
We all are worried about whether either of you or both will be
partisan in this job, and it's a natural concern.
Ms. Schiffer, with all of the controversy surrounding the
NLRB in recent years, I believe that it is vital that we have
qualified and objective members appointed to the Board. And
given your credentials, it's obvious that you are a talented
lawyer.
I can say the same thing about you, Mr. Hirozawa. In terms
of your resume, I don't doubt that you're qualified to serve on
the Board.
However, I have serious concerns about your ability to be
objective, because it's really important that you are and that
you will be. I won't name names, but in recent years, we've had
former union lawyers nominated to the Board who came before
this committee and promised that they would be objective, that
they wouldn't let their former employment cloud their judgment
when it comes to resolving disputes between labor and
management. Needless to say, I don't think those promises they
made here were kept.
It seems like we're in a similar position with your
nomination. You spent the vast majority of your career working
directly for unions, and you've spoken and written extensively
in favor of the unions' positions with regard to public policy.
On top of that, we read all the news reports prior to the
announcement of your nomination that President Obama was
actually consulting with the AFL-CIO about who he should
nominate to the Board.
Given all this, how can you assure us that once you are on
the Board you will remain objective? How can we be sure that
you won't become yet another union partisan on the NLRB and
that you will treat all people who come before the Board fairly
and objectively?
Ms. Schiffer. Thank you for your question, and I appreciate
the concern--that you would have that concern. As I said, I
started at the Detroit regional office. I had an exemplary role
model there. And while I was there, I was, as Mr. Hirozawa
said, a pro-Act field attorney, and my job was to fulfill the
mission of the Act, and that's exactly what I did. And then I
became an advocate, and I understand that this position is
different.
I think it is also important in thinking about this that we
will have, hopefully, the benefit of a full Board, and we will
have varying backgrounds there. I had the opportunity, for
example, to work with Phil Miscimarra, who is another nominee
to the Board, within the last couple of years on an ABA
project. We did a webinar together. It was a webinar to explain
the election rules.
When we approached this, I knew that he has on occasion
advocated on behalf of the Chamber of Commerce. I think I had
made the suggestion that we really need to do this sort of
straight up. We need to do it not with ideological rhetoric in
it. We just really need to do it straight up, and that's
exactly what we did.
My point is that I developed a lot of respect for him. He
was very knowledgeable about the law, and that's how we did the
presentation. So I'm looking forward to be able to have this
kind of engagement at the Board and develop a very collegial
and productive relationship with the other nominees.
Senator Hatch. I'll take your word on that.
Mr. Chairman, might I have the liberty of asking a question
of Mr. Hirozawa?
The Chairman. I'm sorry. I didn't hear that, Orrin.
Senator Hatch. May I have the liberty of just asking one
question of Mr. Hirozawa?
The Chairman. Sure. Go ahead.
Senator Hatch. Thank you so much.
Mr. Hirozawa, I'm impressed with both of you, and I'm
hopeful that you'll be great members of the Board. Mr.
Hirozawa, prior to 2011, the NLRB had engaged in rulemaking on
one occasion. Yet in 2011, the Board finalized two rules, both
of which were extremely controversial.
The first was the notice posting rule requiring all
employers to display a poster informing employees of their
rights to join a union, or form a union, rather. The second was
what some have called the ambush elections rule, which would
have greatly accelerated the pace of union certification
elections. Both of these rules have been invalidated by the
Federal courts as of today.
Now, I have three questions. First, as chief counsel to the
NLRB Chairman Pearce, what role did you have in developing the
substance of these two failed rules? Second, do you believe
that these rules represent good policy? And, finally, do you
believe that the Board's limited history with successful
rulemaking should give Board members pause when considering
whether to engage in rulemaking in the future?
Mr. Hirozawa. Thank you, Senator Hatch. I understand that
the rules have been the subject of a great deal of attention.
And I think that from that experience, both of the rulemaking
and the litigation following the issuance of the rules, there
are lessons for the new Board to learn.
Because I was Chairman Pearce's chief counsel, naturally, I
spent a great deal of time discussing the substance of those
rules with him. But for the same reason, I'm just not at
liberty to say anything about the substance of those
discussions or my role as counsel with respect to the
rulemaking.
In the employee rights notice rule discussion, or
litigation, I should say, I understand that a petition for re-
hearing was filed earlier this week. But the new Board will
have some serious issues to consider and to decide about what,
if anything, to do in the future concerning that rule,
concerning the rule about representation in case procedure, and
also the remainder of the proposed rule. And that's clearly
something that the new Board will have to decide and----
Senator Hatch. I understand. The third part of my question,
though, was do you believe that the Board's limited history
with successful rulemaking should give Board members pause when
considering whether to engage in rulemaking in the future?
That's not asking you to make a determination.
Mr. Hirozawa. I would say, yes, it's something that a
reasonable person in that position would have to take a very
close look at and consider carefully.
Senator Hatch. Thank you.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Hatch.
Senator Casey.
Statement of Senator Casey
Senator Casey. Thank you, Mr. Chairman.
I want to thank both of our nominees for not just your
testimonies today, but your willingness to serve and your
demonstrated commitment to the goals of the Act. Listening to
both of your stories, your life experience as well as your
professional experience, it's a remarkable tribute to the
American experience. And we tend to see that on a regular basis
in this room, but today is especially noteworthy, and you and
your families should be proud of your service so far and I hope
will be proud as well by your continued service.
Sometimes we get caught up in Washington in the back and
forth about politics or also about the National Labor Relations
Board. And we need to remind ourselves not just once in a while
but on a more frequent basis what undergirds this Act.
I represent Pennsylvania, and we had about as difficult a
set of chapters in our history as any State in the Union when
it came to labor-management disputes, where violence led to
people being killed, literally, because of labor disputes;
where industries would grind to a halt because we had no way of
resolving differences. So that was one of the historical
antecedents to the National Labor Relations Act in the 1930s.
And, unfortunately, we still need the Act. I wish things
were otherwise, and we wouldn't need the Act and wouldn't need
a Board, that these disputes could be settled in another way.
But I think it's important to remind ourselves what the Act
says. Throughout the findings of Congress when they passed the
Act, it talks about the free flow of commerce, and making sure
that we take steps to safeguard commerce from injury,
impairment, or interruption--that's on the negative side--and
on the positive side, to promote the free flow of commerce.
But then at the very end of this five-paragraph section in
the first section of the Act, it says,
``It is declared to be policy of the United States to
eliminate the causes of certain substantial
obstructions to the free flow of commerce and to
mitigate and eliminate those obstructions when they
have occurred by encouraging the practice and procedure
of collective bargaining.''
It's very important that we have each of you in place, that
we have a functioning Board. Your willingness to serve and this
confirmation process will ensure that we have a functioning
Board for all the reasons and many more set forth in the Act.
So it's vitally important that we get this done.
I wanted to ask in the short time that I have, about 2
minutes, if you could focus--and I know there are a number of
aspects of your record and your work and your life history that
you could point to--but if you could focus on one or two life
experiences or political and governmental experiences you've
had that would particularly focus on your ability to be
objective and balanced.
We don't ask you to come before us as if you were a
machine, to achieve scientific certainty that you will be
balanced. You're both human beings. All of us are. No one of us
can achieve perfect balance, but to the extent that you can,
focus on life experiences that will give us a clue as to how
you're going to be balanced in this role.
Ms. Schiffer, if you could start.
Ms. Schiffer. Life experiences. When I worked at the
National Labor Relations Board in Detroit as a representative
of the agency's regional office, one of the things I did was
conduct secret ballot elections. I would typically go into a
workplace--that's where most of them were conducted--and I
would pass out the ballots, and people would mark the ballots,
and we would count them at the workplace.
There would be the workers and the company representatives,
and we would announce the results. It was an amazing
demonstration of democracy in the workplace, that workers had
the opportunity to do that.
Also when I was at the Board and after, I was involved in
collective bargaining situations where we really had to try to
work out what would be best. One of my practice areas was
retiree health insurance, situations where the union believed
it had negotiated continuing benefits for retirees, and then
the company, for various reasons, changed or terminated those
benefits.
When that happened, we represented those retirees. We
needed to be able to reach across the table and to reach an
agreement about what would happen to their healthcare, so that
the issue could be resolved in a way that the company would be
able to provide those benefits, financially, and that the
retirees would have some measure of continuance and coverage in
their retirement.
Another experience--and Senator Baldwin mentioned this with
respect to manufacturing. In the early 1980s, there was a
difficult economic period. I remember once going up to a city
in the upper peninsula of Michigan that was a one-horse town,
and the one horse was leaving.
I went up there on behalf of the UAW represented membership
there to try to reach a shut-down agreement with the company.
We worked very hard to reach an agreement so that the employer
could have an orderly and efficient shut-down, and so that the
workers would be able to regroup and retrain or find new jobs
or whatever they needed to do, because all of a sudden their
whole life was being changed as well. And we did that, and we
really accomplished a very satisfying, I think, on both sides,
shut-down agreement.
So those, I think, are the kinds of experiences that I've
had that will help me as a member of the Board if I'm
confirmed.
Senator Casey. Mr. Hirozawa.
Mr. Hirozawa. Hearing that makes me wish I had worked in
the Detroit regional office. I have to say that one of the best
kinds of experiences that I've had during my many years in
private practice was as union co-counsel to jointly trusteed
employee benefit funds.
And there, on several different funds, I had the
opportunity to work very closely with my management co-counsel,
who was also generally the representative of the employer or
the employer association, in collective bargaining matters and
with the union and employer trustees in solving problems, which
really were common problems. For the health funds, it was
typically what to do about the rising cost of healthcare. And
with the retirement funds, it was how to handle the investments
in order to try and maximize the benefit that you can provide
for the covered employees.
What I learned from that experience is that most employers
and most employer representatives want the best for their
employees in terms of wages and benefits. But the environment
can be very challenging sometimes, and nothing beats
cooperation, working together and trying to achieve those
goals.
Senator Casey. Thank you.
The Chairman. Thank you, Senator Casey.
Senator Scott.
Statement of Senator Scott
Senator Scott. Thank you, Mr. Chairman.
Senator Casey, I actually enjoyed listening to your
comments about how it would be nice to achieve the scientific
certainty that our folks here may have a balanced approach. I
would settle for just an ounce of optimism toward that.
We've heard very consistently questions around finding a
way to be objective in this process. And, certainly, with you
two, we are looking for those answers, because it's an
important part of the equation. One thing that I think is
noteworthy is that the NLRB is not designed to be an extension
of the President's team.
We've had a lot of conversation of late of creating teams,
of letting the President finish his team, and, ultimately, your
nominations have been stuck in the quagmire pit of the
President's team. And I hope that we all realize that the NLRB
should not be a part of the President's team, but that the goal
of the NLRB should be to become neutral arbiters. And I say
``become'' because the activities of late of the NLRB have been
anything but neutral.
I hope your roles, if you are confirmed, will include
perhaps a paradigm shift from your experience in the workforce,
it seems to me, to one that allows you to take a look at things
from a neutral perspective.
I think, Ms. Schiffer, as I look at your experience,
certainly, you've had lots of experience on the labor side that
gives me a reason to pause and be concerned. And I would love
to hear your answer at the end of my comments as it relates to
how we could have greater confidence in your ability, as well
as yours, sir, to be objective.
As I looked through the experience in your history on the
side of labor, I noted that for the last 12 years, you've been
the assistant general counsel for the AFL-CIO. And we just
heard you talk about card check. You've testified twice before
Congress on card check, in a position where you don't
necessarily like the secret ballot concepts, or the 18 years
that you spent working at the AFL-CIO's department of the
United Auto Workers in Detroit, or as recently as 2004, when
you were a member of the UAW 1981.
Those are some of the reasons that I find myself concerned
in looking for not scientific certainty, but just an ounce of
hope; that would be fantastic from my perspective. You said
today that you believe in the Act, the NLRA. In 2007, you said
that the NLRA, the Act itself, was being used as a sword by
employers to frustrate employees' freedom of choice. And you
also said that the Act no longer protects workers' rights to
form a union. Further, comments that you've made about
employers have ranged from they spy, harass, threaten,
intimidate, bribe, and suppress.
It seems to me that there is a perspective that may have
been tainted on one side or the other. And in 2010, you
commented that we really need to streamline the election
process and eliminate so much delay that is now built into the
National Labor Relations Act process.
I'm not sure if you realize that the Acting General
Counsel's fiscal year 2011 summary of operations set a target
of about 42 days for a union to be formed, and the fact is that
we are below target, around 38 days. But it seems to indicate a
strong position for what we call the ambush election process,
which only takes about 10 days.
One of my favorites, of course, is your attack on the House
Republicans in 2012 that I was a part of when you made your
comments. You attacked, I think, my bill, specifically, H.R.
2587, that prohibited the NLRB from destroying jobs created in
one State in order to move them to another State.
Your comments,
``Passing legislation in the House to deny the NLRB
authority to remedy illegal conduct when a company
eliminates or transfers work in order to deny workers
their rights,''
I take great exception to.
First, there's no question that--as you are, I'm sure, well
aware of--the NLRB has a number of weapons in their arsenal.
The one that H.R. 2587 eliminated, had it passed both chambers,
and the President signed it, which was obviously not going to
happen--had it happened, however, it would have eliminated the
opportunity for the NLRB to transfer jobs from South Carolina
back to Washington.
The premise of your comments was, in fact, that somehow,
some way, there was an elimination of jobs in Puget Sound, WA,
when, in fact, there were 2,000 jobs added to Puget Sound while
we were adding 5,000 jobs in South Carolina.
So my real question really is the same question we've heard
asked a number of times: How can we have a high level of
confidence of objectivity or impartiality or what we used to
call the neutral arbiter, the NLRB?
Ms. Schiffer. As I stated, I started my career as a lawyer.
I've been primarily involved in traditional NLRA issues for 37
years. But I started at the National Labor Relations Board, and
I started in the capacity of being a neutral Board agent. And,
as I said, I received a commendation from John Irving for that.
But my point is that I take what I do very seriously, and I
understand the importance of doing the job in the appropriate
way. And I did that when I was at the National Labor Relations
Board, and I hoped that I did that when I worked for the United
Auto Workers and in private practice and for the AFL-CIO.
I spoke when I testified from my own personal experiences.
I saw workers who had been spied on. I saw workers who had been
followed into the bathroom while they were at work so that
their supervisors could hear who they talked to and what they
talked about. So I tried to bring those experiences----
Senator Scott. I certainly see your point. I was just
saying that the generic classification of employers,
generically speaking, as spies, harassing, and threatening
creates an environment or a culture that seems to be
inconsistent with most of the employers that I have had the
opportunity to converse with and pay attention to. But I would
just love to have some sense that there is the ability to be
unbiased in the job that you are nominated for.
Ms. Schiffer. I appreciate that, and I want the Act to
succeed. I'm committed to the Act. I want this, now that we
have this opportunity, possibly, for a full National Labor
Relations Board with confirmed members, that it can be viewed
as a fair and honest broker in these cases.
And I'm committed to working with the Board staff to
develop good relationships--I indicated that I have some
experience with that already with Phil Miscimarra--and to
develop that with the other Board members so that we can be
productive and take advantage of each other's differing
backgrounds and experiences, and be able to reach fair,
reasoned decisions that are viewed that way so that people will
have confidence in the Board. That will be my role if I'm
confirmed as a member of the Board.
Senator Scott. Thank you, ma'am.
Thank you, Mr. Chairman.
The Chairman. Senator Franken.
Statement of Senator Franken
Senator Franken. Thank you, Mr. Chairman.
I want to thank both of you for agreeing to serve on the
NLRB. The NLRB was created to protect Americans' rights under
the National Labor Relations Act. However, Board vacancies are
threatening the NLRB's ability to operate, which has had a real
impact on the lives of workers and employers.
I asked previous nominees before this committee about the
case of Susie Stetler, a school bus driver from Elk River, MN.
Ten months ago, the Board issued a decision, but her case has
been in legal limbo as a result of the D.C. Circuit's Noel
Canning decision. Ms. Stetler still has not been rehired, and
she's still waiting for $40,000 in back pay.
Mr. Hirozawa, I'm sure you're aware of many similar cases.
In a world in which the Senate confirms NLRB nominees in a
timely manner, what should the process have been for someone
like Ms. Stetler compared to how it actually played out for
her?
Mr. Hirozawa. The Board should have been able to obtain
reasonably prompt enforcement of the order granting the remedy
and I think would have if it didn't have to contend with the
quorum issues in litigation.
Senator Franken. And that's what's at stake here. I like
what you said in your testimony--and it's been referred to--
hearing another employee describe this pro-Act, not pro-union
or pro-management. We've heard a lot today about potential bias
that you might have because you've worked for--Ms. Schiffer for
the AFL-CIO--because you worked for the Board of the NLRB or
worked for the chair.
In the history of the NLRB, have there been people who have
been nominated and confirmed before who have worked for labor?
And have there been people before who have worked for
management? Has that happened before, ever?
Mr. Hirozawa. Yes, I think it has been--I think most recent
members of the Board have either been management lawyers or
have----
Senator Franken. This isn't the first time this has
happened.
Ms. Schiffer. If I could just say, one of the members of
the Board came directly from the Labor Policy Department of the
Chamber of Commerce.
Senator Franken. I heard Senator Warren say that an awful
lot of the decisions that are made by the NLRB are unanimous.
Is that correct?
Mr. Hirozawa. Yes, that's correct.
Senator Franken. So that would suggest to me that once
you're a member of the NLRB, you're able to set aside--or maybe
the issues that come before you are clear cut enough, or are
such that people who have had a career as pro-labor or pro-
management can come together and be pro-Act.
Mr. Hirozawa. Yes, I think it's a combination of all of
those factors.
Senator Franken. I think that has been our experience here.
Mr. Hirozawa, while you worked at the NLRB, the number of
Board members serving has ranged from two to five. Meanwhile,
the NLRB received over 20,000 unfair labor practice charges
last year alone. Tell me about the difference that a full Board
makes in terms of handling the case volume before the NLRB.
Mr. Hirozawa. It makes a huge difference. That was
precisely the reason why in the Taft-Hartley Act in 1947
Congress increased the size of the Board from three to five
members, so that the Board could process cases more quickly and
efficiently. And it does make a tremendous difference to have a
full complement of Board members.
It will also make a big difference to have a fully
confirmed complement of Board members, because recess
appointees are there for a very short period of time. What that
means is that you have a lot of turnover, and each time you get
a new member, there's a learning curve, and, naturally, that
doesn't do anything for the goal of trying to move the cases
expeditiously.
Senator Franken. Again, I want to thank you both for
offering yourselves or being willing to take this job.
And thank you, Mr. Chairman, for this very important
meeting, and I'd like to thank the Ranking Member as well.
The Chairman. Thank you, Senator Franken.
Senator Alexander.
Senator Alexander. Thanks, Mr. Chairman. I only have a
couple of questions, as Senator Franken's questions set me to
thinking.
Ms. Schiffer, can you think of anyone other than Craig
Becker and yourself who came directly from employment by a
union as a lawyer to the NLRB Board? I couldn't.
Ms. Schiffer. None come to mind right now.
Senator Alexander. Let me ask about what's called the
Excelsior List. The current law requires employers to provide
union organizers with a list of employees' names and home
addresses. That's called the Excelsior List.
The NLRB is pursuing a regulatory effort to expand that
requirement to include cell phone numbers, email addresses,
employee work location, shifts, and job classifications. A lot
of employees have said that seems to them like an invasion of
privacy. They don't want all that personal information shared
without their consent.
If you are confirmed, would either of you continue to
pursue the portion of the proposed regulation that allows this
invasion of employees' privacy?
Ms. Schiffer. It's my understanding that there are still
portions of the notice of proposed rulemaking previously issued
regarding the election procedures--that's still pending. And if
that were to come before the Board, then I would be considering
it at that point in time, and I wouldn't want to prejudge that.
I appreciate the issues of privacy. I appreciate the
current Excelsior List. The rule dated from a Board decision in
1960, 1966. So it's a fairly old rule. There wasn't the
technology then. There is now. We communicate differently, I
think----
Senator Alexander. Well, we do. But we also have heightened
concerns about invasion of privacy.
Ms. Schiffer. Yes, right.
Senator Alexander. And I would think as an advocate for
employees, one would care about that.
Ms. Schiffer. Yes. I think all of those are very legitimate
considerations that would have to be reviewed by the Board in
the event that there is further consideration of those portions
of that outstanding notice of proposed rulemaking. So I
couldn't prejudge it now. I don't have an opinion about that
now.
Senator Alexander. Would you consider, if it were to come
up, at least allowing employees to opt out of such personal
information requests? Do you think that's reasonable?
Ms. Schiffer. That would certainly be something that would
be considered, I assume, at the time and part of the
consideration.
Senator Alexander. Mr. Hirozawa.
Mr. Hirozawa. Thank you, Senator. I agree that the privacy
concerns raised by that kind of proposed rule are very
substantial and would need to be considered very carefully by
the Board in addressing that kind of proposal. Again, it would
be inappropriate for me to prejudge any of those issues. We are
going to be getting a new complement of members, it appears,
and if I end up being one of those members, that's something
that I would have to discuss very seriously with my colleagues.
Senator Alexander. Would you also consider the opt-out
provision should you go forward with a rule like this?
Mr. Hirozawa. Yes, I would certainly consider it.
Senator Alexander. The concerns about privacy in an era of
social media and the Internet are not an exclusively Republican
issue in the U.S. Senate. We hear as much about that from the
Democratic side as we do from the Republican side. And I would
hope that would be the kind of issue that would be considered.
My last question is this. Ms. Schiffer, in an ABA meeting
in 2012, you made a presentation, ``Congressional Review of the
NLRB: Oversight or Over the Top.'' You said,
``Congressional efforts to oversee the NLRB through
information requests, letters, and hearings was an
unfocused or meandering witch hunt.''
Does that suggest that you won't be willing to comply with
letters or requests that we make of you if you were to be a
member of the National Labor Relations Board?
Ms. Schiffer. Not at all. And I believe that Congress does
have the responsibility and the obligation to provide
oversight. I respect the role of Congress. I would cooperate in
any efforts in that regard.
Senator Alexander. Thank you.
Mr. Chairman, all I would ask, again, as I did at the
beginning, is--we have scheduled a markup tomorrow, which means
a vote. My guess would be, while it would be up to the
leadership to decide that, that the first time this could be on
the floor for consideration, should you be reported to the full
Senate, would be next week.
If you, Mr. Hirozawa and Ms. Schiffer, are reported, I
would think there would be an up or down vote on your
nominations. At least, I think there should be. However,
Senators have a right to have answers to their questions and
information that you provide. We have now all the information
that we normally receive for Presidential nominees, and we've
had this hearing.
But I would ask the two of you that if Senators have
additional questions--we will urge them to get them to you
right away, and I would urge you to respond to them as fully
and as completely as you can so that all members of the Senate
could have your answers to the questions before the Senate
might be asked to vote on your nominations next week.
Thank you, Mr. Chairman.
Ms. Schiffer. We certainly want to do that.
Mr. Hirozawa. We'll do our absolute best.
The Chairman. I would add that I hope the questions are
pertinent to this position, reasonable, rational, and limited.
I hope we don't have the kind of questions that were submitted
to someone not on this committee--McCarthy, I guess her name
was, Ms. McCarthy at the EPA, who had 1,200 questions. It would
be impossible, I think, for anyone to respond to 1,200
questions within that period of time we're discussing.
Senators have an absolute right to ask questions and
should. For the record, we call them QFRs, questions for the
record. But I would hope, again, that they would be reasonable
in number so that our proposed nominees can have a decent
chance to examine them and respond to them. I hope that people
will exercise some restraint in how many they ask without going
overboard.
I'd like to read, as I always like to read this from the
National Labor Relations Act, Section 1, right in the beginning
of the National Labor Relations Act.
``It is hereby 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''--mark that word,
`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.''
It is the policy of the United States to encourage the
practice and procedure of collective bargaining. That's in the
Act. Now, if people don't like that, I suppose they could offer
to change the Act, but I haven't heard of any of that yet.
Again, I thank you both. I thank your families for being
here. I thank you both for your public service in the past. And
I hope with the Ranking Member that we can get to this tomorrow
on the vote, and then I encourage you both to respond to the
QFRs, the questions for the record, as rapidly as possible and
as thoroughly as you can answer those questions.
On the other hand, I hope, Senators' staffs who are here
and Senators listening in, that we not have an unreasonable
number of questions that need to be responded to.
If there's nothing more, I thank you both for your
willingness to serve on this extremely important Board. As I
said in the beginning, this Board really is the Board that
helps both businesses and workers move ahead. I am aware of the
fact that 91 percent--I believe I'm right on this--91 percent
of all the cases that come into regional offices are settled at
the regional level, 9 out of 10. So that means the Board is
functioning, and it's functioning well.
Every once in a while, a tough case comes up or something
happens to get the Board to have to think about the application
of the Act to modern circumstances. Perhaps, sometimes, that's
when problems arise.
But I have every reason to believe that now, having a full
complement of the Board--for the first time in over a decade,
we'll have a full Board able to meet, as you said, Mr.
Hirozawa, and consult together. The kind of processes that Mr.
Pearce has set up in the Board, I think, bode well for the
future in terms of people working together and making the Board
fully functional once again.
I thank you all, and if there's nothing more to come before
the committee, the committee will stand adjourned. Thank you.
[Additional material follows.]
ADDITIONAL MATERIAL
Response by Kent Yoshiho Hirozawa to Questions of Senator Alexander,
Senator Enzi, Senator Burr, Senator Isakson, Senator Hatch, and Senator
Scott
senator alexander
Question 1a. At today's hearing you testified that you spent ``a
great deal of time working on the NLRB's two regulatory efforts.'' In
August 2011, the Board issued a new rule requiring employers to post a
biased employee rights poster in the workplace. Two separate Federal
courts have struck the rule down. In December 2011, the Board issued a
new rule shortening the time in which a union election is held,
otherwise known as the ``ambush'' or ``quickie'' elections rule. The
D.C. Circuit struck down the rule on the grounds it lacked a quorum.
What percentage of your time was devoted to these regulatory
efforts?
Answer 1a. I am not required to maintain the sort of detailed time
records that would be necessary for me to accurately determine what
percentage of my time was spent on work related to rulemaking. As a
general matter, the clear majority of my work time was spent on other
matters, primarily case adjudication.
Question 1b. If confirmed, will you continue to pursue continued or
new regulatory initiatives at the NLRB? Please describe the efforts you
would support.
Answer 1b. I support the Board's rulemaking authority, as reflected
in Section 6 of the National Labor Relations Act. I believe that the
Board should exercise that authority judiciously and consistent with
all legal requirements. What, if any, further rulemaking the Board
should undertake is an issue which, if confirmed, I would have to
carefully consider with all of my colleagues on the Board and with the
Board's professional staff.
Question 1c. You also testified that there were lessons to be
learned from the Board's experience with the two rulemakings. What
specifically were those lessons you learned?
Answer 1c. The lessons to be learned from recent rulemaking include
the importance of seeking broad public participation in the process,
which I believe that the Board successfully achieved by holding public
hearings and by accepting public comments electronically, as well as
the importance of carefully considering and addressing the public
comments received, which I believe that the Board did.
If I become a Board member, I would favor a discussion with all of
my colleagues concerning the conclusions to be drawn from the
litigation.
Question 2. The Board has shown a specific interest in reversing
prior precedent regarding whether graduate teaching assistants may
organize. In 2004, the Board ruled in Brown University that graduate
teaching and research assistants are students rather than employees.
Last year, the Board took the first step in reversing Brown by saying
they would review that decision. If the Board decides to reverse the
2004 decision, this would be the third time in 12 years the Board has
changed its policy in this area. Besides the practical effect a
reversal has on universities, I think there could be a larger effect on
the credibility of the Board in the eyes of the courts and the public.
Do you think a reversal will have a detrimental effect on
universities' academic relationships with their graduate students?
Does another reversal undermine the concept of impartiality and
instead shift to whoever makes up the current majority?
What do you suggest the Board do to stop this negative trend of
constant reversals?
Answer 2. Because pending cases before the Board raise the issue
addressed in Brown University, I do not believe it would be appropriate
for me to address the potential effects of any particular outcome. I
would approach those cases with an open mind, and, if confirmed, look
forward to discussing them with my colleagues.
As a historical matter, reversals of precedent by the Board are
relatively rare. In the great majority of cases, the Board follows
prior precedent. I believe that norm should continue.
Question 3a. In August 2011, the Board issued the Specialty
Healthcare decision, which dramatically lowered the standard used to
determine the size and scope of a bargaining unit. This decision allows
unions to essentially gerrymander a bargaining unit among its
supporters at a worksite. The result will be to further fracture
employees' relationships with the employer, and their fellow employees.
A key component of every secret ballot election, including our own as
Senators, is that the majority rules.
Does the decision in Specialty Healthcare preserve the notion of
``majority rule'' in determining whether employees want to join a
union?
Answer 3a. Yes. Most Board elections are conducted in the units
agreed to by the parties. Where the parties are unable to reach
agreement, the appropriate unit is determined by the Board or a Board
regional director. The Union is certified only upon winning a majority
of the votes cast.
Question 3b. Does Specialty Healthcare conflict with the
congressional intent that the Board not rely on the extent of
organizing when determining the appropriate bargaining unit?
Answer 3b. Because the Board's obligation is to choose an
appropriate unit, not the most appropriate unit, it has always begun
the appropriate unit inquiry in a particular case by considering the
petitioned-for unit. That practice is not in conflict with Section
9(c)(5) of the National Labor Relations Act.
Question 4a. On several occasions over the last few years, the
Board has taken a case which presents a narrow question of law and used
it as a platform to overrule precedent and institute major changes to
our understanding of labor law. The Specialty Healthcare decision is
one example of this trend.
Do you think it is appropriate for the Board to reach out and
decide issues and address arguments not raised by the parties?
Answer 4a. As a general rule, it is preferable for the Board not to
reach out and decide issues not raised by the parties, unless required
to do so. With respect, I do not believe that the Board did so in
Specialty Healthcare.
Question 4b. If so, are you concerned that this practice violates
the parties' due process rights? Please explain.
Answer 4b. Concerns about the parties' due process rights are one
reason why it is generally not advisable for the Board to reach out and
decide issues not raised by the parties.
Question 4c. During the hearing, you claimed that Specialty
Healthcare, which overruled decades of precedent, is the law and that
the Board should respect it as precedent. Don't you think the Board in
Specialty Healthcare should have respected the previous decades of
precedent instead of significantly changing the law?
Answer 4c. In deciding Specialty Healthcare, the Board expressly
adopted the standard enunciated by the U.S. Court of Appeals for the
District of Columbia Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d
417, 421-23 (2008), a case that raised the same issue in a non-
healthcare context. That standard was already in use in cases not
involving non-acute healthcare facilities, and in Specialty Healthcare,
the Board explained that it had simply ``return[ed] to the application
of [its] traditional community of interest approach'' in that one set
of cases. My ethical obligation to maintain confidentiality concerning
advice I gave to then-Member Pearce at the time the Board was
considering Specialty Healthcare prohibits me from commenting further
on the decision. That obligation is discussed in more detail below in
my response to question 6.
Question 5a. Several of the Board's recent decisions overruling
decades of precedent were not applied to the parties before it. Rather,
the Board decided to apply the new rules only prospectively.
In your view, does this approach violate the Administrative
Procedure Act inasmuch as the Board has effectively promulgated rules
not used to adjudicate the cases before it without following the APA's
notice and comment procedures?
Answer 5a. Where the Board has determined to apply a new legal
rule, established in a case adjudication, only prospectively, it has
followed longstanding Board precedent on the issue of retroactivity. I
am not presently aware of any judicial decision concluding that the
Board's precedent was contrary to the Administrative Procedure Act.
Question 5b. If confirmed, would you work to end this practice of
exclusive prospective application of Board precedents?
Answer 5b. The Board does not have a ``practice of exclusive
prospective application of Board precedents.''
Question 6. You testified at the hearing that the current Board has
made a tremendous effort to build consensus and collaboration Board
decisions. You also spoke about the importance of having a diversity of
viewpoints.
Did you support the decision to finalize the Representation Case
Procedures rule on December 22, 2011, without a written dissent by the
minority member?
If confirmed, what will you do to ensure that the minority members
will be afforded the opportunity to voice their dissent when a decision
or rule is issued?
Answer 6. As I explained at the committee's July 23, 2013 hearing,
I believe that it would be inappropriate for me to discuss my views
with respect to Board actions or decisions that Chairman Pearce joined
during my tenure as his Chief Counsel.
In my role as Chief Counsel, I provided legal advice to the
Chairman concerning the rulemaking that is the subject of your question
and I participated, as a staff member, in the Board's related
deliberations. Discussing my views publicly would be inconsistent with
the confidential professional relationship that I have had with the
Chairman. It would also be contrary to the required confidentiality of
the Board's deliberative process. Confidentiality is maintained to
promote sound decisionmaking by ensuring the full and free discussion
of legal issues.
Section 18020 of the Guide for Staff Counsel of the National Labor
Relations Board (Sept. 1994) provides that ``[s]taff counsel are
confidential employees of the Board Member for whom they work'' and
that staff counsel are generally prohibited from disclosing information
about Board cases, whether before or after a case has been issued.
In addition, such disclosures might in certain circumstances
violate both the Standards of Ethical Conduct for Employees of the
executive branch and the State ethical rules that apply to attorneys,
such as Rule 1.6 of the New York Rules of Professional Conduct (2009).
On March 19, 2012, the Board's Inspector General issued a Report of
Investigation (OIG-I-468) with respect to public disclosures of
deliberative information by a prior Chief Counsel, who served another
Board Member. The Inspector General's report addresses the standards
that govern this area, and I am guided by that report.
I do believe that the representation of diverse viewpoints is very
beneficial to the deliberative process. If I am confirmed to serve as a
Board member, I will strive to allow and encourage all members
participating in a case or rule to express their views both in
deliberations and in written decisions, concurrences, or dissents.
senator enzi
Federal Labor Law on Tribal Lands
Question 1. Wyoming is home to the Wind River Reservation where
tribal governments and enterprises are recognized to have sovereignty
over activities which take place on tribal lands. In a number of cases,
the Supreme Court has recognized that Federal law does not infringe on
this sovereignty unless Congress expressly says Federal law applies on
tribal land. Do you believe that the National Labor Relations Act
should override tribal employment codes?
Answer 1. Under existing Board precedent, the National Labor
Relations Act may effectively override tribal employment codes,
depending on various factors. The leading Board decision in this area
is San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004). The U.S.
Court of Appeals for the District of Columbia Circuit affirmed the
Board's decision, and the Board has followed it subsequently.
Question 2. Do you believe Congress intended the National Labor
Relations Act to apply to tribal businesses?
Answer 2. The National Labor Relations Act does not contain an
express exclusion for tribal businesses, in contrast to certain other
entities identified in Section 2(2). In San Manuel Indian Bingo &
Casino, cited above, the Board concluded that the Act could be applied
to tribal businesses, depending on various factors.
Notice Posting Rulemaking
Question 3. The NLRB's 2011 rulemaking that requires employers to
post a notice of only certain employee rights was invalidated recently
by two Federal courts. This notice rule emphasizes posters advertising
an employee's right to unionize and collectively bargain but does not
include information about the right for employees to object to the use
of their union dues and fees to go toward political purposes. Do you
defend the NLRB using a rulemaking to cherry pick what it requires
employers to post when at least one study suggests 67 percent of
workers are unaware of their right under the NLRA to withhold mandatory
union fees for political purposes?
Answer 3. In its preamble to the final rule, published in the
Federal Register, the Board addressed the issue that you raise. 76 Fed.
Reg. 54023 (Aug. 30, 2011). The Board observed that the rights to which
you refer (known as Beck rights)
``apply only to employees who are represented by unions under
collective bargaining agreements containing union-security
provisions'' and that ``unions that seek to obligate employees
to pay dues and fees under those provisions are required to
inform those employees of their Beck rights'' under existing
Board precedent.
The Board also stated that it:
``was presented with no evidence during this rulemaking that
suggests that unions are not generally complying with their
notice obligations.''
In sum, the Board concluded that:
``because Beck does not apply to the overwhelming majority of
employees in today's private sector workplace, and because
unions already are obliged to inform the employees to whom it
does apply of their Beck rights, the Board is not including
Beck notification in the final notice.''
senator burr
Question 1. If you are ever served with a congressional subpoena,
will you commit to complying with said subpoena to the satisfaction of
the issuing authority?
Answer 1. I will make every effort to comply with a congressional
subpoena.
Question 2. In your experience as a lawyer, how frequently do you
see an agent of a party in ongoing disputes be made a judge in such
disputes?
Answer 2. It would be highly unusual for an agent of a party in
ongoing litigation to be made a judge in that case. I don't believe I
have ever seen such a case. In addition, the ethical rules applicable
to judges require a judge to recuse him or herself from adjudicating a
case based on certain prior or ongoing relationships with a party to
the case.
I take my ethical obligations very seriously. This includes any
obligation that I might have to recuse myself from a specific case. If
any case or issue brought before me raised a question about my ethical
obligations, I would consult with the Designated Agency Ethics Official
(DAEO) at the National Labor Relations Board, and, if advisable with
the Office of Government Ethics (OGE). It is my understanding that if I
am confirmed to the Board, before I am sworn in, I will be fully
briefed on all applicable ethical guidelines. I pledge that I will
fully comply with all of them.
Question 3. Chairman Harkin said, based on his reading of an
introductory portion of the NLRA that the job of the NLRB is to
encourage collective bargaining. Do you share his belief or do you
believe a more complete reading of the law says that the NLRB should be
a fair arbiter between the parties in dispute and should protect the
rights of employees to either choose or reject unions?
Answer 3. The National Labor Relations Act states very clearly that
the policy of the United States is to promote the free flow of commerce
by encouraging collective bargaining. The NLRB's statutory duty is to
implement and enforce the Act consistent with that policy. The NLRB is
charged with protecting all the rights that employees, unions, and
employers have under the law, including the right of employees to
choose whether or not to be represented by a union. The NLRB is
designed to be a neutral arbiter of disputes that arise under the Act.
Question 4. Do you believe employers should have a right to legal
counsel regarding unionization matters?
Answer 4. The National Labor Relations Act does not require parties
coming before the NLRB to retain counsel, but any party who wishes to
be represented by counsel in such matters is of course welcome to be so
represented.
Question 5. Could you provide three instances in your career where
you have taken a stance in opposition to a union?
Answer 5. Local 32B-32J, Service Employees International Union,
AFL-CIO (Pritchard Services, Inc.), Case No. 2-CB-1513 (charge filed,
complaint issued, hearing held 1986). The charge was filed by an
individual employee against the union alleging that the union had
caused the employer to discriminate against her with respect to bumping
rights for reasons other than failure to tender periodic dues and
initiation fees. As a Board attorney, I investigated the charge, the
regional director issued a complaint against the union, and I litigated
the Board General Counsel's case against the union in a hearing before
an administrative law judge and filed a post-hearing brief urging that
the judge find a violation by the union.
Regional Import & Export Trucking Co. and Truck Drivers Local No.
807 a/w International Brotherhood of Teamsters, 318 NLRB 816 (1995),
323 NLRB 1206 (1997). I litigated the compliance stage of this case on
behalf of a group of truck drivers and warehouse workers against a
trucking company and a local union. The two respondents were held
jointly and severally liable for back pay and interest totaling over $1
million.
Rabbitt v. Gallo, No. 01-CV-7583 (NG) (E.D.N.Y. 2001). I filed a
lawsuit in Federal district court against a union on behalf of several
members, seeking an injunction requiring the union to place on the
ballot a candidate for union office who had been ruled ineligible to
run.
Question 6. Public-sector/public safety employees can be prohibited
from volunteering due to employment contracts. The AFL-CIO has
supported these clauses. Do you believe that such clauses are ever
appropriate regardless of whether or not an organization is governed by
the National Labor Relations Act?
Answer 6. To the best of my understanding, the National Labor
Relations Act does not address the issue that you raise, nor am I
familiar enough with the issue to have formed an opinion.
Question 7. Do you believe threats of physical violence by pro-
union supporters is ever acceptable? Do you consider such behavior to
be coercive and an unfair labor practice?
Answer 7. Under existing case law under the National Labor
Relations Act, threats of physical violence by pro-union supporters may
be, depending on the circumstances (including the identity of the
persons making threats and the credibility of the threats),
objectionable conduct requiring a representation election to be set
aside and may also be an unfair labor practice. I believe that such
behavior can be coercive and an unfair labor practice.
Question 8. Do you envision a scenario in which you would support
an effort by employees to preserve an open shop?
Answer 8. As a Board Member, my responsibility would be to
neutrally adjudicate any case that presented the issue you raise, based
on the record evidence and applicable law.
senator isakson
Question 1. In your opinion, do you agree with the Board's decision
to apply a decision concerning an acute nursing facility to all manner
of industries, including those having nothing to do with medical or
health care? For example, Bergdorf Goodman's in New York City as well
as a Macy's outside of Boston are both facing serious fragmentations of
their workforce because of the application of the Specialty Healthcare
decision.
Answer 1. Governing law in Board representation proceedings
typically applies across industry lines. The question addressed in
Specialty Healthcare--how to determine an appropriate unit where one
party contends that the unit sought by another party must include
additional employees--was not specific to health care. Moreover, the
standard the Board adopted in Specialty Healthcare was enunciated by
the U.S. Court of Appeals for the District of Columbia Circuit in Blue
Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-23 (2008), a case involving a
unit of stage crew employees for a theatrical show performed in a
casino hotel. Thus, the formulation adopted by the Board was one
already in use outside the area of non-acute health facilities.
Question 2. During the hearing, when you were asked why the NLRB
overruled decades of precedent in Specialty Healthcare, you stated that
due to attorney-client confidentiality, you could not speak as to
Chairman Pearce's views or your personal views at the time the decision
was issued. You also stated that you could not pre-judge future
questions. But you acknowledged that a department store with 35
different unions representing 35 different departments would be
``disruptive'' to labor relations. As such, my question is not about
the past or the future, but rather about the present and the experience
of employers living under the Specialty Healthcare decision. What is
your personal opinion (not Chairman Pearce's) of the Specialty
Healthcare decision at present (not when the decision was issued) in
light of the reported fragmentation of bargaining units in several
department stores, including Macy's and Bergdorf Goodman?
Answer 2. As I stated in my testimony at the July 23, 2013 hearing,
my personal opinion of the Board's decision in Specialty Healthcare is,
in a sense, a moot point: Specialty Healthcare is now Board law. (It is
also the law of the U.S. Court of Appeals for the District of Columbia
Circuit. In Specialty Healthcare, the Board expressly adopted the D.C.
Circuit's standard enunciated in Blue Man Vegas, LLC v. NLRB, 529 F.3d
417, 421-23 (2008), a case that raised the same issue in a non-
healthcare context.) I am therefore obligated to treat it as I would
any prior Board precedent.
Macy's and Bergdorf Goodman are two cases currently pending before
the Board. In each case, the employer and the union disagree over the
appropriateness of the petitioned-for bargaining unit. It is the
Board's obligation to determine whether the petitioned-for units are
fragmented, that is, whether they would be appropriate without the
inclusion of other employees. With respect, I do not believe that I can
address those issues here consistent with my ethical obligations to
maintain confidentiality regarding internal deliberations in pending
cases.
Question 3. There seems to be a very consistent theme of the
Board's recent history. When you look at the so-called ``ambush''
election rulemaking, the courts overturned the decision based on the
fact that there wasn't a sufficient quorum. In the poster rule, we now
have three courts, one in South Carolina and two in DC, which have
deemed the ruling invalid. Specialty Healthcare is another case
decision that is under review by the courts; and these are just naming
a few. I am very concerned that the ``independent'' NLRB has become one
that has had to be kept in check by the judicial branch. How can you
assure to us that you will work in the spirit of impartiality that is
supposed to be at the core of the Board's mission?
Answer 3. As I stated in my testimony before the committee, if
confirmed, I pledge to dedicate myself to the fair and even-handed
enforcement of the commands of the National Labor Relations Act,
consistent with the Act's purpose of maintaining industrial peace. I
would carry out my duties fairly and impartially and enforce the Act
without bias or agenda.
senator hatch
Question. As a result of the D.C. Circuit's decision in Noel
Canning, a number of the Board's past decisions will likely be up for
reconsideration. As Chief Counsel to NLRB Chairman Pearce, you likely
wrote many of the decisions that will likely be reconsidered by the
Board.
Given your close connection to these decisions, how can we believe
that you will give these decisions a fair and independent review if you
are confirmed?
Answer. If confirmed, I would take my role as a neutral adjudicator
of the law very seriously. I pledge to carry out my duties as a Board
member fairly, impartially, and in strict accordance with the law.
It has been my privilege to serve as Chairman Pearce's chief
counsel at the Board for the past few years. I will use that
experience, along with my experience as a field attorney in the
Manhattan regional office of the National Labor Relations Board, and my
20 years of experience working with labor law issues in the private
sector to inform my decisions as a Board member. I fully understand,
however, that my role as a Board member would be to exercise
independent judgment as a neutral adjudicator. I would evaluate each
case with an open mind.
senator scott
Question 1a. In your testimony, you vowed to dedicate yourself ``to
the fair and even-handed enforcement of the commands of the Act,
consistent with the Act's purpose of maintaining industrial peace.''
However, the Board has pursued rulemakings that represent a gross
overreach of the NLRB's statutory authority under the NLRA. The
``Notice Posting Rule'' issued in 2011 was struck down by the U.S.
Court of Appeals for the Fourth Circuit for this very reason. The Court
held that the Board ``exceeded its authority in promulgating the
challenged rule'' and that the NLRA
``only empowers the Board to carry out its statutorily
defined reactive roles in addressing unfair labor practice
charges and conducting representation elections upon request.''
Given that support of the ``Notice Posting Rule'' would contradict
a commitment to work within the bounds of the Act in an impartial and
reactive manner, as a Board member will you support the rulemaking
going forward?
Answer 1a. The ``Notice Posting Rule'' remains the subject of
ongoing litigation. The issue of how the Board should proceed with
respect to the rule is a pending issue that must be deliberated and
decided by the full Board. If confirmed, I would give the issue careful
consideration, in consultation with my fellow Board members and the
Board's professional staff.
Question 1b. Do you think the Board has used its resources
efficiently by pursuing unprecedented rulemakings that have been
repeatedly challenged and struck down in Federal courts?
Answer 1b. Rulemaking by the Board is not unprecedented. The Board
has issued procedural rules on dozens of occasions. It has also issued
a significant rule, the Health Care Rule, that was challenged in the
Federal courts, but ultimately upheld by the Supreme Court. The
litigation involving recent Board rules remains ongoing. I believe that
rulemaking is an appropriate exercise of the Board's statutory
authority and that the Board has used its resources efficiently in this
area.
Question 1c. You indicated in your nomination hearing that
following the aftermath of the litigation surrounding these
rulemakings, ``there are lessons to be learned for a new Board.''
Please elaborate further on what those lessons are in your opinion and
how you will incorporate them as a Board member.
Answer 1c. The lessons to be learned from recent rulemaking include
the importance of seeking broad public participation in the process,
which I believe that the Board successfully achieved by holding public
hearings and by accepting public comments electronically, as well as
the importance of carefully considering and addressing the public
comments received, which I believe that the Board did.
If I become a Board member, I would favor a discussion with all of
my colleagues concerning the conclusions to be drawn from the
litigation.
Question 2a. The Board under this Administration has not acted as a
neutral arbiter and has pursued numerous decisions that upend decades
of precedent. You have indicated on multiple occasions that precedent
is imperative for stability and should only be overturned in the rarest
of circumstances.
Please identify which of the below Board decisions meet that rare
instance in which you believe precedent should be overturned:
WKYC-TV, Gannet Co., Inc. (08-CA-039190)
Alan Ritchey, Inc. (32-CA-018149)
IronTiger Logistics, Inc. (16-CA-027543)
Piedmont Gardens (32-CA-063475)
United Nurses & Allied Professionals (Kent Hospital) (01-
CB-011135)
Hispanics United of Buffalo (03-CA-027872)
Karl Knauz BMW (13-CA-046452)
Dish Network (16-CA-062433A)
Fresenius USA Manufacturing (02-CA-039518)
Answer 2a. With respect, I do not share your view that the Board
has ``not acted as a neutral arbiter.'' I do believe that reversals of
precedent should remain relatively rare and should always reflect
careful consideration. Examples of cases in which the Board may well be
justified in reversing precedent are where existing Board law lacks a
clear and coherent rationale and/or where the Board has been directed
by a Federal court to reconsider its approach to a particular legal
issue.
Of the decisions cited above, IronTiger Logistics, United Nurses
and Allied Professionals (Kent Hospital), Hispanics United of Buffalo,
Karl Knauz BMW, Dish Network, and Fresenius USA Manufacturing, did not
overturn precedent. WKYC-TV overturned a decision issued in 1962, whose
rationale (or lack thereof) had been rejected repeatedly by the U.S.
Court of Appeals for the Ninth Circuit over more than a decade. Alan
Ritchey, Inc. overturned a 2002 decision, which lacked rationale.
Piedmont Gardens overturned a 1978 decision that had created an
automatic exemption from disclosure for witness statements, rather than
apply the interest-
balancing test governing union information requests articulated by the
Supreme Court in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).
Question 2b. In your nomination hearing, you agreed that micro-
unions would make labor relations much more complicated. Can you please
describe what you believe is an appropriate bargaining unit?
Answer 2b. Section 9(a) of the National Labor Relations Act begins
as follows:
``Representatives designated or selected for the purposes of
collective bargaining by the majority of the employees in a
unit appropriate for bargaining for such purposes, shall be the
exclusive representatives of all the employees in such unit for
the purposes of collective bargaining in respect to rates of
pay, wages, hours of employment, or other conditions of
employment . . .''
Section 9(b) begins as follows:
``The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercising the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof . . .''
Since the passage of the Act, the Board and the Federal courts have
developed an extensive and detailed body of law interpreting those
provisions to determine what constitutes an appropriate unit for
bargaining. That body of law is best summed up by the term ``community
of interest.'' Employees have a community of interest, such that they
constitute an appropriate unit for bargaining, if they have substantial
mutual interests in wages, hours, or other conditions of employment.
Question 3. Do you agree with the Board's decision in Specialty
Healthcare? Please answer yes or no.
Answer 3. With respect, I do not believe that I can answer that
question consistent with my ethical obligations to maintain
confidentiality regarding advice I gave to then-Member Pearce at the
time the Board was considering Specialty Healthcare. In addition, and
as I believe I stated at my confirmation hearing, whether I agree with
the Board's decision in Specialty Healthcare is, in a sense, a moot
point: Specialty Healthcare is now Board law. (It is also the law of
the U.S. Court of Appeals for the District of Columbia Circuit. In
Specialty Healthcare, the Board expressly adopted the D.C. Circuit's
standard enunciated in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-
23 (2008), a case that raised the same issue in a non-healthcare
context.) I am therefore obligated to treat it as I would any prior
Board precedent.
Response by Nancy Jean Schiffer to Questions of Senator Alexander,
Senator Enzi, Senator Burr, Senator Isakson, Senator Hatch, and Senator
Scott
senator alexander
Question 1a. In 2007, while you were employed as asociate general
counsel with the AFL-CIO, your employer hosted a rally and march to
``close the NLRB.'' AFL-CIO national organizing director Stewart Acuff
said, ``the Labor Board should be closed for renovations until a new
governing board could be appointed by a new President,'' and the AFL-
CIO Director of the Voice at Work Campaign said, ``It's time to shut
the board down and close it for renovation.'' Please answer each
question.
As a senior AFL-CIO official at the time, did you agree that the
NLRB should be shut down because Republicans were in the majority?
Answer 1a. In 2007, I was working as Associate General Counsel for
the AFL-CIO and my role was to advocate for the union and its
positions. I recognized then and continue to recognize the vital role
the National Labor Relations Board plays in enforcing the rights of
employers, unions and employees. Further, I am fully aware of the
differences between working as an adjudicator and an advocate. If
confirmed, I would take my role as a neutral adjudicator of the law
very seriously.
Question 1b. Do you believe now or did you believe then that it is
the role of the NLRB to reward particular special interests?
Answer 1b. No, I do not believe it is the role of the NLRB to
reward special interests.
Question 1c. In fact, the NLRB did dwindle to two Board members at
the end of 2007 and the Senate did not confirm any new members until
June 2010. The Supreme Court ruled that the Board did not have a quorum
to issue valid decisions during that time. Was this the outcome the
AFL-CIO sought?
Answer 1c. No, it was not the outcome the AFL-CIO sought. When the
Supreme Court issued its decision in New Process Steel, the AFL-CIO
issued a statement expressing disappointment. I believe in the Act and
in the mission of the Agency. I believe that a fully functioning Board
of five confirmed Members is in the best interests of the Act and its
mission. I do not believe that the National Labor Relations Board
should be shut down or reward special interests. I do not believe the
decision of the Supreme Court referenced in your question was
anticipated.
Question 2a. At today's hearing, you said that you believe in the
National Labor Relations Act and hope to be viewed as ``pro-Act.'' But
in recent past statements, it is clear that you had very strong
negative feelings about the ability of the NLRB to carry out its
mission, particularly in the conduct of secret ballot elections. You've
said, ``The union election process is broken, NLRB elections are
conducted in an inherently coercive environment--the workplace,'' and
called it ``the delay-ridden, divisive, coercive representation
election process.''
Yet, unions have won 63 percent of all secret ballot elections over
the last 5 years, reaching historic highs. In fiscal year 2012, 93.9
percent of all initial union elections were held within 56 days of the
petition's filing, and in each of the past 3 years (fiscal year 2010-
2012), the median time period between petition filing and union
election has been 38 days, a timeframe which Acting General Counsel
Lafe Solomon touted as ``well below our target median of 42 days.''
Have you changed your views?
Answer 2a. I testified as an advocate representing the positions of
the AFL-CIO. I fully understand the differences in the role of an
advocate and a neutral arbiter of the law. In testimony I gave in 2004,
I referenced a specific case in which an election was conducted soon
after a petition for representation was filed and in which
approximately 500 workers chose union representation by an almost 100
vote margin. Yet those workers were not able to be represented or
engage in collective bargaining for 6\1/2\ years because of post-
election litigation brought by the employer. That case was recounted in
my testimony for the purpose of illustrating that, in that case,
conducting an election within the Board's targeted median timeframe
that resulted in the selection of union representation did not insure
that the election process was not fraught with delays. Whether the
election process is fair depends on the circumstances in which the
process is conducted.
Question 2b. If you still believe the secret ballot election
process is broken, do you have plans to try to make changes to the
ballet election process if confirmed as a Board member?
Answer 2b. If I am confirmed as a member of the National Labor
Relations Board, I will apply the law impartially to all parties that
come before the Board and make sure that cases are decided in a fair
and expeditious manner. I have no preconceived agenda. If confirmed, I
will consider each issue before the Board with an open mind and make my
decision based on the facts of the particular case and in consultation
with my colleagues and career Board staff and with due consideration to
the positions of the parties and the facts of the case.
Question 3. You have an extensive history with cases and parties
that will be coming before the NLRB during your tenure, if you are
confirmed.
Will you recuse yourself from all cases involving your former
employer, the AFL-CIO, and their affiliate unions? Please explain in
detail your answer.
Answer 3. I take my ethical obligations very seriously. This
includes any obligation that I may have to recuse myself from a
specific case. I will fully comply with the ethics agreement I have
entered into with the NLRB and with the standards of recusal applicable
to executive branch officials set forth in 5 CFR 2635 and in Executive
Order No. 13490. If any case brought before me raises a question about
my ethical obligations, I would consult with the Designated Agency
Ethics Official (DAEO) at the National Labor Relations Board. It is my
understanding that if I am confirmed to the Board, before I am sworn
in, I will be fully briefed on all applicable ethical guidelines. I
pledge that I will make every effort to fully comply with all of them.
Question 4. The National Labor Relations Act states that employees
have the right to organize a union and bargain with their employer, and
they ``also have the right to refrain from any or all such
activities,'' except that they can be forced to pay dues in order to
work at a unionized employer in non-Right-to-Work States.
Do you agree that all employees should have a right to refrain from
joining or assisting a labor organization?
Answer 4. Section 7 of the National Labor Relations Board provides
that
``[e]mployees shall have the right to self-organization, to
form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and
shall also have the right to refrain from any and all of such
activities except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment as authorized in section 8(a)(3).''
If confirmed as a Member of the National Labor Relations Board, I
will enforce these rights.
Question 5a. In August 2011, the Board issued the Specialty
Healthcare decision, which dramatically lowered the standard used to
determine the size and scope of a bargaining unit. This decision allows
unions to essentially gerrymander a bargaining unit among its
supporters at a worksite. The result will be to further fracture
employees' relationships with the employer, and their fellow employees.
A key component of every secret ballot election, including our own as
Senators, is that the majority rules.
Does the decision in Specialty Healthcare preserve the notion of
``majority rule'' in determining whether employees want to join a
union?
Answer 5a. The decision in Specialty Healthcare preserves majority
rule as, a majority of employees must select or designate the union in
order to have union representation. It is my understanding that
Specialty Healthcare adopted a single description for the standard to
be applied in cases where an employer challenges a proposed bargaining
unit on the particular ground that other employees share such a strong
community of interest that they must be included as well, and that the
description adopted there was taken from a D.C. Circuit opinion by
Judge Douglas Ginsberg, who explained its basis in prior NLRB
decisions. If I am confirmed as a member of the National Labor
Relations Board, I will consider any such positions and arguments with
an open mind and carefully consider the facts of the case, the
viewpoints of my colleagues, career Board staff and the parties, and
apply the law in a fair and honest manner.
Question 5b. Does Specialty Healthcare conflict with the
congressional intent that the Board not rely on the extent of
organizing when determining the appropriate bargaining unit?
Answer 5b. No. The decision in Specialty Healthcare does not give
any more weight to the extent of organizing than prior decisions and
does not conflict with congressional intent.
senator enzi
Federal Labor Law on Tribal Land
Question 1. Wyoming is home to the Wind River Reservation where
tribal governments and enterprises are recognized to have sovereignty
over activities which take place on tribal lands. In a number of cases,
the Supreme Court has recognized that Federal law does not infringe on
this sovereignty unless Congress expressly says Federal law applies on
tribal land. Do you believe that the National Labor Relations Act
should override tribal employment codes?
Answer 1. I do not have a view on this question. If I am confirmed,
I will approach the issue with an open mind, taking into consideration
the views of my colleagues, the professional staff of the Agency, and
the parties that would be affected, and the specific facts of the case
at issue.
Question 2. Do you believe Congress intended the National Labor
Relations Act to apply to tribal businesses?
Answer 2. The National Labor Relations Act does not contain an
express exclusion for tribal businesses, in contrast to certain other
entities identified in Section 2(2) of the Act. In San Manuel Indian
Bingo & Casino, the Board concluded that the Act could be applied to
certain tribal businesses.
Congressional Oversight
Question 3. In a 2012 presentation before the American Bar
Association you authored a paper in your capacity as Associate General
Counsel of the AFL-CIO suggesting that congressional oversight of the
National Labor Relations Board (NLRB) was ``over the top.''
Specifically, you noted that ``information requests were rampant'' and
identified specific bills introduced in the House and Senate which you
consider as attacks on the NLRB.
Is it your opinion that Congress does not have an institutional
prerogative to conduct oversight over Federal agency activities?
Additionally, is it your opinion that Congress cannot consider
legislation amending organic statutes including those which created the
NLRB?
Answer 3. The Constitution grants Congress the authority to conduct
oversight over Federal agency activities and to amend statutes
including the NLRA. My presentation did not state otherwise. I believe
Congress has the right to consider such matters.
senator burr
Question 1. If you are ever served with a congressional subpoena,
will you commit to complying with said subpoena to the satisfaction of
the issuing authority?
Answer 1. I will make every effort to comply with any congressional
subpoena.
Question 2. Your public financial disclosure form lists pensions
with AFL-CIO and UAW that provide you with monthly financial benefits.
Do you plan to recuse yourself from all rulemakings and other matters
that would have a direct financial impact on the AFL-CIO and UAW?
Answer 2. I take my ethical obligations very seriously. This
includes any obligation that I may have to recuse myself from a
specific case. I will fully comply with the ethics agreement I have
entered into with the NLRB and with the standards of recusal applicable
to executive branch officials set forth in 5 CFR 2635 and in Executive
Order No. 13490. If any particular matter brought before me raises a
question about my ethical obligations, I would consult with the
Designated Agency Ethics Official (DAEO) at the National Labor
Relations Board. It is my understanding that if I am confirmed to the
Board, before I am sworn in, I will be fully briefed on all applicable
ethical guidelines. I pledge that I will make every effort to fully
comply with all of them.
I am receiving retirement benefits from the International Union,
UAW and the AFL-CIO. Because I will continue to participate in these
defined benefit plans, I will not participate personally and
substantially in any particular matter that will have a direct and
predictable effect on the ability or willingness of either entity to
provide me with this contractual benefit, unless I first obtain a
written waiver under 18 U.S.C. 208(b)(1), or qualify for a regulatory
exemption under 18 U.S.C. 208(b)(2).
Question 3. What is your justification for your statement that the
AFL-CIO is seldom before the Board? The record is replete with
organizations under the authority of the AFL-CIO coming before the
Board. The NLRB's Web site's Case Search engine calls up over 100 pages
of results listing specific parties identifying themselves as AFL-CIO
organizations.
Answer 3. Various unions that come before the Board are affiliated
with the AFL-CIO, but that does not make the AFL-CIO a party to a case.
Likewise, the Chamber of Commerce does not become a party by virtue of
one of its members coming before the Board.
The reason a search of the NLRB's Web site finds cases listing the
AFL-CIO is that affiliated unions and their locals include the name of
the AFL-CIO to indicate the affiliation of their national union. There
is a well-established body of law, including decades-old Supreme Court
precedent, that the voluntary unincorporated association which is the
AFL-CIO and those national unions which are its affiliates constitute
legally separate and distinct entities.
Question 4. In your experience as a lawyer, how frequently do you
see an agent of a party in ongoing disputes be made a judge in such
disputes?
Answer 4. I have not, in my own experience as a lawyer, frequently
seen a representative of a party in a particular case be called upon to
adjudicate the particular case in which s/he represented one of the
parties.
However, I have seen multiple situations where advocates become
adjudicators. For example, many NLRB Board Members have come from
private practice where they represented employers and the Chamber of
Commerce. I do not anticipate that any of my fellow nominees will be
biased or unduly influenced by their experiences working for
management-side law firms representing employers and the Chamber of
Commerce, or that Chairman Pearce would be biased based on his prior
work history, my work experience will not inhibit me from being a
neutral arbiter of the law.
Question 5. Chairman Harkin said, based on his reading of an
introductory portion of the NLRA that the job of the NLRB is to
encourage collective bargaining. Do you share his belief or do you
believe a more complete reading of the law says that the NLRB should be
a fair arbitrator between the parties in dispute and should protect the
rights of employees to either choose or reject unions?
Answer 5. I agree with both articulations and do not think they are
inherently in conflict. Chairman Harkin correctly quoted from the
preamble to the Act; and the Act, in section 7, protects, inter alia,
the rights of employees to refrain from engaging in activities
articulated therein.
Question 6. Do you believe employers should have a right to legal
counsel regarding unionization matters?
Answer 6. I believe that employers should be free to retain legal
counsel to represent them if they so choose.
Question 7. Could you provide three instances in your career where
you have taken a stance in opposition to a union?
Answer 7. While I was employed by the International Union, United
Auto Workers and by the AFL-CIO, I occasionally represented both
entities in their capacities as employers and advised them on internal
grievance matters. During the course of such grievance procedures, I
represented my client in positions taken in opposition to the labor
unions.
As a Field Attorney of Region 7 of the National Labor Relations
Board, I brought picket line injunction cases against unions, I
investigated unfair labor charges against unions, and I prosecuted at
least one discharge case against a labor union.
Also during my tenure with Region 7, I recall issuing a decision in
an NLRB post-election objection case in which I dismissed objections to
conduct affecting an election, which had been filed by a union.
Question 8. You've stated that you recognize the difference between
being an advocate and being an arbitrator. Could you name three policy
positions you were required to speak for as an employee of the AFL-CIO
which you do not currently hold?
Answer 8. The fact that as an employee of the AFL-CIO I advocated
specific policy positions does not mean that if I am confirmed as a
member of the NLRB that I would not be a neutral arbiter of the law.
Regarding specific policy positions for which I advocated as an
employee of the AFL-CIO, the advocacy and advice I provided are subject
to attorney-client privilege and I cannot elaborate on internal
deliberations I engaged in with my client. If I am confirmed as a
member of the National Labor Relations Board, I will approach cases
with an open mind, carefully consider the specific facts and arguments
presented, seek out the experience and expertise of career Board staff,
engage in collegial and productive discussions with my colleagues on
the Board to have the benefit of their experience and knowledge, and
fairly consider the issues presented. I know the difference between
advocating on behalf of my client, having personal viewpoints, and
fairly applying the law. I am committed to doing the latter if I become
a member of the National Labor Relations Board.
Question 9. Public-sector/public safety employees can be prohibited
from volunteering due to employment contracts. The AFL-CIO has
supported these clauses. Do you believe that such clauses are ever
appropriate regardless of whether or not an organization is governed by
the National Labor Relations Act?
Answer 9. The National Labor Relations Act does not apply to public
sector/public safety employees and I do not believe that it speaks to
this issue which would be governed by State law and the Fair Labor
Standards Act.
I am not familiar with this issue and do not believe I have ever
taken a position relating to this issue.
Question 10. Do you believe threats of physical violence by pro-
union supporters is ever acceptable? Do you consider such behavior to
be coercive and an unfair labor practice?
Answer 10. I believe that threats of violence are not acceptable
and are coercive. Whether the threats constitute an unfair labor
practice would depend on whether they were made on behalf of an
employer or a union and on the objective in making the threat. The
unfair labor practices set forth in the National Labor Relations Act
apply to conduct by employers and unions. Threats by individuals are a
matter for local law enforcement.
Question 11. Do you envision a scenario in which you would support
an effort by employees to preserve an open shop?
Answer 11. I would neutrally enforce the National Labor Relations
Act to protect employees engaged in protected activity without regard
to their support for or opposition to union organizing or membership. I
would approach any case that raised the issue presented in your
question based on the facts of the case and the applicable law.
senator isakson
Question 1. In 2007, while you were at the AFL-CIO, your
organization called for the NLRB to be ``shut down'' until a Democratic
president could appoint a Board more favorable to organized labor.
Ironically, in the past year, the same organization whom you used to
work for called on the Senate to ensure that NLRB was a fully
functioning Board. Should the Board's existence merely be a matter of
convenience to the agenda of organized labor?
Answer 1. No. I believe in the Act and in the mission of the
National Labor Relations Act and I do not think it should be shut down.
Question 2. In January 2012, when the Senate was in a pro forma
session, President Obama ``recess''-appointed Sharon Block and Richard
Griffin to the NLRB. Since then, three Federal circuit courts have
ruled that the President's recess appointments violated the
Constitution and the Supreme Court is expected to hear arguments
surrounding this issue in the near future. In your opinion, do you
believe that the President acted responsibly and appropriately when he
chose to appointment Ms. Block and Mr. Griffin during a pro forma
session of the Senate?
Answer 2. The question of the January 2012 recess appointments is
currently pending before the Supreme Court. Only the Supreme Court can
answer that question, and it is not within my purview.
Question 3. In a case involving Bergdorff Goodman, the Board's
regional director used Specialty Healthcare as the premise for allowing
the Retail, Wholesale, Department Store Union to represent both full-
time and regular part-time women's shoes associates on the 2d floor and
5th floor of the store. Wouldn't common sense dictate that creating
various, small collective bargaining units within the same workplace
lead to increased labor relations costs as well as hostility among
employees regarding wages, benefits and pensions? How does that help an
employer stay in business? How does that create jobs?
Answer 3. The case involving Bergdorff Goodman is currently pending
before the Board. I do not want to prejudge any case that may, if I am
confirmed, come before the Board. I need the opportunity to review the
record and consider the views of career Board staff, my colleagues, and
the parties. I am aware of cases where employers have invoked Specialty
Healthcare in support of their own positions regarding appropriate
bargaining units, so it seems to depend on the specific facts of the
case.
Question 4. Do you believe that it is within the purview and
Constitutional authority of the Congress of the United States to hold
hearings, conduct investigations and deliberate matters in the interest
of transparency and accountability?
If no, then please explain. If yes, then please explain why at the
2012 American Bar Association Midwinter Meeting you characterized
recent efforts by the Congress to conduct its responsibility of
providing oversight of the NLRB as an ``attack.''
Answer 4. I believe in the right and obligation of Congress to
engage in oversight. In my presentation, I listed certain rhetoric,
some of which was directed personally at the Acting General Counsel and
career staff and was not attributed to Members of Congress or linked to
any congressional action which, in my opinion, constituted a personal
attack and not a congressional inquiry.
senator hatch
Question 1. In early 2012, you gave a presentation for the American
Bar Association criticizing Congress's oversight of the NLRB. In that
paper, you listed what you called the ``Top Ten Attacks on the National
Labor Relations Board.'' Taking the top spot on your list were actions
taken by Members of Congress to, among other things, ``create a
construct to prevent the President from exercising his Constitutional
power to make recess appointments.'' You wrote this less than 2 months
after the President unlawfully appointed two nominees to the Board.
It seems evident that you were implying that the President was
justified in making these two appointments. That certainly would have
been in line with statements made by other officials at the AFL-CIO,
your former employer. But, I want to make sure your views are clear on
the matter.
In your view, did the ``construct'' created by Senate Republicans
justify the President's decision to make those unconstitutional
appointments?
Answer 1. The question of the January 2012 recess appointments is
currently pending before the Supreme Court. Only the Supreme Court can
answer that question, and it is not within my purview.
Question 2. In the same 2012 presentation, you argued that several
pieces of legislation constituted ``attacks'' on the NLRB. Among
others, your list included bills that would mandate secret ballot
representation elections, create a national right to work, and exercise
Congress's prerogatives under the Congressional Review Act to block
administrative regulations.
Is it still your opinion that these and other bills amending U.S.
labor policy constitute unfair ``attacks'' on the NLRB?
Answer 2. The Constitution grants Congress the authority to amend
statutes including the National Labor Relations Act. My presentation
did not state otherwise. I believe Congress has the right to amend
statutes.
In my presentation at the Midwinter meeting of the ABA Committee on
Practice & Procedure before the National Labor Relations Board, I
highlighted actions by Congress which sought to change, influence, and
affect the National Labor Relations Act and the National Labor
Relations Board, in connection with my role as an advocate on behalf of
the AFL-CIO. The purpose of my presentation was to provide a thorough
list of congressional actions relating to the National Labor Relations
Board since the Agency is the subject matter of the ABA Committee on
Practice & Procedure before the National Labor Relations Board and the
primary practice area of its members, including management and union
representatives as well as neutrals. I understand that such measures
are within the legitimate authority of Congress and respect Congress'
right to take such actions.
Question 3a. One of the most high-profile actions taken by the
Board in recent years was the decision by the Acting General Counsel to
file a complaint against Boeing for building a new plant to perform new
work in South Carolina, a right-to-work State.
In your 2012 ABA presentation, you publicly criticized Members of
Congress who took issue with the Boeing Complaint, saying that, with
the complaint, ``Republicans had an issue they believed they could ride
all the way to the 2012 elections.'' In addition, leaders at the AFL-
CIO, your former employer, cheered the Boeing Complaint and expressed a
hope that similar complaints would be filed elsewhere.
What are your personal legal views on the merits of the Boeing
Complaint?
Answer 3a. I was not privy to the deliberations that led to the
issuance of the Boeing Complaint. It is the role of the General Counsel
to make determinations regarding charges brought before him and to
refer such cases for hearing and adjudication on the merits. The
General Counsel's determination is not a final determination on the
merits on the case. I have no view on the ultimate merits of the case.
Since no hearing was ever completed in connection with the Boeing
Complaint, there is no public record of testimony and documents; and no
publicly available briefs were filed. It is my understanding that the
matter was resolved to the satisfaction of the parties and that the
complaint was therefore withdrawn.
Question 3b. Is it still your opinion that congressional inquiries
into the Acting General Counsel's decisionmaking process with regard to
the Boeing Complaint constituted personal and unfair attacks?
Answer 3b. I believe in the right and obligation of Congress to
engage in oversight. In my ABA presentation, I also listed certain
rhetoric, some of which was directed personally at the Acting General
Counsel and career staff and was not attributed to Members of Congress
or linked to any specific congressional action. If confirmed, I pledge
to cooperate with congressional inquiries and oversight.
Question 4a. In your 2012 ABA presentation, you also listed 10
hearings in the House of Representatives in 2011 and 2012 examining the
NLRB's actions and processes. These hearings were among the ``attacks''
on the NLRB discussed throughout your presentation.
Is it still your opinion that these oversight hearings constituted
unfair attacks on the Board?
Answer 4a. The Constitution grants Congress the authority to
conduct oversight over Federal agency activities. My presentation did
not state otherwise. I believe Congress has the right to consider such
matters. Again, if confirmed, I pledge to cooperate with congressional
inquiries and oversight.
Question 4b. In your view, is Congress entitled to hold hearings to
examine activities by the NLRB that it finds questionable?
Answer 4b. Congress is entitled to hold oversight hearings
regarding the National Labor Relations Board.
Question 5a. You have written and spoken very extensively in
support of the so-called Employee Free Choice Act. Specifically, you've
made a number of public statements praising the ``card check'' process
for unionization and disparaging secret ballot votes in union
representation elections.
For example, in congressional testimony you gave in 2004, you said
that,
``The NLRB representation process has become really a
confrontational mechanism that forces workers through this sort
of endurance process in order to be able to form a union,'' . .
. ``the process has become so gamed by employers as to create
delay.''
In 2007, you testified before Congress that the NLRB election
process
``has become perverted. It now acts as a sword which is used
by employers to frustrate employee freedom of choice and deny
them their right to collective bargaining.''
You also said that the election process ``provides a virtually
insurmountable series of practical, procedural, and legal obstacles.''
With these and other statements, you seem to be describing a world
that doesn't exist in our current reality. The truth is this: the
average time between the filing of union petition and a representation
election is 38 days. That hardly seems like a system fraught with undue
delays. And, over the last 5 years, unions have been successful in 63
percent of secret ballot representation elections. That hardly sounds
like union supporters face insurmountable obstacles.
Given these realities, what is the basis for your outspoken support
of the Employee Free Choice Act?
Answer 5a. I testified as an advocate representing the positions of
the AFL-CIO. I fully understand the differences in the role of an
advocate and a neutral arbiter of the law. In testimony I gave in 2004,
I referenced a specific case in which an election was conducted soon
after a petition for representation was filed and in which
approximately 500 workers chose union representation by an almost 100-
vote margin. Yet those workers were not able to be represented or
engage in collective bargaining for 6\1/2\ years because of post-
election litigation brought by the employer. That case was recounted in
my testimony for the purpose of illustrating that, in that case,
conducting an election within 38 days (i.e., within the 38 day
statistic) that resulted in the selection of union representation
(i.e., within the 63 percent statistic) did not insure that the
election process was not fraught with delays.
Question 5b. Is it still your opinion that the current NLRB
election process is inherently unfair?
Answer 5b. Whether the election process is fair depends on the
circumstances in which the process is conducted.
Question 5c. Can you cite anything beyond anecdotal evidence to
support that opinion?
Answer 5c. As discussed in my answer to question three, the
specific case I discussed in my 2004 testimony provides an example of
election certification delays.
One of the key functions of the NLRB is to oversee the conduct of
representation elections and to assure, so far as possible, that
employees are able to make a free and un-coerced choice as to whether
they want union representation. If I am confirmed as a member of the
National Labor Relations Board, I will apply the law impartially to all
parties that come before the Board and make sure that cases are decided
in a fair and expeditious manner. I have no preconceived agenda to
change the election process. If presented with such positions, I will
consider them with an open mind and make my decision based on the facts
of the particular case and in consultation with my colleagues and
career Board staff and with due consideration to the positions of the
parties and the facts of the case.
Regarding the Employee Free Choice Act specifically, I believe that
the changes it set forth could be achieved only through legislative
action by Congress.
Question 6. In 2009, you gave a presentation at the Tulane Law
School Multistate Labor and Employment Law Seminar about the Employee
Rights Act. In that presentation, you wrote that,
``those who decry the loss of secret ballots must recognize
that the democracy they advocate is the `democracy' of Saddam
Hussein--he had secret ballot elections, but no one thinks of
his regime as democratic.''
Does this statement accurately reflect your current views of those
who oppose ``card check'' union certifications and support secret
ballot union representation elections?
Answer 6. In my 2009 presentation at the Tulane Law School
Multistate Labor and Employment Law Seminar about the Employee Rights
Act, the purpose of the statement cited was to illustrate that just
because an election process results in the use of secret ballots
doesn't mean that the process is fair. Fairness depends on the facts,
circumstances and procedures involved in the election process. When I
was a Board agent at the NLRB's Detroit Regional Office, I conducted
secret ballot elections in workplaces and was inspired by the
demonstration of workplace democracy I had the opportunity to
experience. But I also had experiences where the process was not fair,
as determined after adjudication and a decision on the merits. What is
essential is that voters be able to exercise their right to vote free
from coercion, intimidation or other interference from either the
employer or the union. This is true with respect to political
elections, here and around the world, and it is also true with respect
to the election process of the National Labor Relations Board.
Question 7. As was discussed during the hearing, in the history of
the NLRB, only two other members were appointed to the Board directly
after working in-house for a labor union, but neither was confirmed by
the Senate. If confirmed, you would be the first such member. As you
may know, the first union lawyer appointed to the Board made numerous
commitments to the committee to recuse himself in matters involving his
former employer. Yet, during his time on the Board, he never fully
recused himself.
What standard will you use in determining whether to recuse
yourself in matters before the Board that involve your former
employers?
Answer 7. I take my ethical obligations very seriously. This
includes any obligation that I may have to recuse myself from a
specific case. I will fully comply with the ethics agreement I have
entered into with the NLRB and with the standards of recusal applicable
to executive branch officials set forth in 5 CFR 2635 and in Executive
Order No. 13490. If any case brought before me raised a question about
my ethical obligations, I would consult with the Designated Agency
Ethics Official (DAEO) at the National Labor Relations Board. It is my
understanding that if I am confirmed to the Board, before I am sworn
in, I will be fully briefed on all of the applicable ethical
guidelines. Further, I pledge that I will make every effort to fully
comply with all of them.
senator scott
Question 1a. Ms. Schiffer, you asserted in 2010, ``We really need
to streamline the election process and eliminate so much delay that is
now built into the National Labor Relations Act process.''
How can you feel this way, given that the median election time is
38 days, which according to the Acting General Counsel's fiscal year
2011 Summary of Operations is ``below [the] target median election time
of 42 days?''
Answer 1a. I testified and made statements about the election rule
in my capacity as an advocate for the AFL-CIO. I fully understand the
differences in the role of an advocate and a neutral arbiter of the
law. In testimony I gave in 2004, I referenced a specific case in which
an election was conducted soon after a petition for representation was
filed and in which approximately 500 workers chose union representation
by an almost 100-vote margin. Yet those workers were not able to be
represented or engage in collective bargaining for 6\1/2\ years because
of post-election litigation brought by the employer. That case was
recounted in my testimony for the purpose of illustrating that, in that
case, conducting an election within the Board's target median election
timeframe that resulted in the selection of union representation did
not insure that the election process was not fraught with delays.
Whether the election process is fair depends on the circumstances in
which the process is conducted.
Question 1b. Can you please explain how decreasing this critical
window down to as few as 10 days would not fundamentally chill the
rights of employers to make their case and the rights of employees to
make informed decisions?
Answer 1b. As I understand it, the Board's proposed election rule
does not set any minimum or maximum time in which an election must be
held. This issue may come before the Board and therefore it is
inappropriate for me to prejudge it. I have no preconceived agenda. If
presented with such positions, I will consider them with an open mind
and make my decision based on the facts of the particular case and in
consultation with my colleagues and career Board staff and with due
consideration to the positions of the parties and the facts of the
case.
Question 1c. How can you portray the election process as riddled
with intimidation and lacking protections for workers seeking to
organize when the facts suggest just the opposite?
Unions won 66 percent of elections in 2009, up from a 51
percent success rate in 1997.
However, the NLRB only accepted 44 percent of employee
petitions to hold decertification elections in fiscal year 2010, down
from 54 percent in fiscal year 2007.
Answer 1c. Again, in testimony I gave in 2004, I referenced a
specific case in which an election was conducted soon after a petition
for representation was filed and in which approximately 500 workers
chose union representation by an almost 100 vote margin. Yet those
workers were not able to be represented or engage in collective
bargaining for 6\1/2\ years because of post-election litigation brought
by the employer. That case was recounted in my testimony for the
purpose of illustrating that, in that case, conducting an election
within the Board's target median timeframe that resulted in the
selection of union representation (i.e., within the 66 percent
statistic) did not insure that the election process was not fraught
with delays. Whether the election process is fair depends on the
circumstances in which the process is conducted.
It is my understanding that the Board will accept any timely
petition to hold a decertification election where there is a sufficient
showing of interest.
Question 1d. Given your extensive partiality toward unions and your
characterization of the NLRA as a ``sword which is used by employers to
frustrate employee freedom of choice'' that ``no longer protects
workers' rights to form a union,'' can you commit to carry out the
mission of the Act in a neutral manner?
Answer 1d. If confirmed, I would take my role as a neutral
adjudicator of the law very seriously. I pledge that if I was confirmed
as Board member, I will apply the law impartially to all parties that
come before the Board with no preconceived agenda and make sure that
cases are decided in a fair and expeditious manner.
Question 2. You extensively rebuked two critical functions of
Congress, oversight and legislative, in your ``Congressional Review of
the National Labor Relations Board: Oversight or Over-the-Top.'' By
characterizing my House Republican colleagues and me as being on a
``meandering witch hunt'' against the NLRB, you made a broad
presumption that House oversight activities were unfounded. Are you
aware that the subpoena for emails of the Office of General Counsel
relating to the Boeing case revealed troubling violations of the NLRB's
own ex parte rules, the separation principle between the Office of
General Counsel and the Board, as well as an extreme lack of
professionalism and neutrality?
Answer 2. The Constitution grants Congress the authority to conduct
oversight over Federal agency activities and to amend statutes
including the NLRA. My presentation did not state otherwise. I believe
Congress has the right to consider such matters. If confirmed, I pledge
to cooperate with congressional inquiries and oversight.
Question 3. Since you have so openly discussed your views on the
Boeing case, please confirm whether or not you believe that a company
located in a non-Right-to-Work State, in this case Boeing, seeking to
expand and create new jobs in a Right-to-Work State should be charged
with an unfair labor practice when no jobs were lost.
Answer 3. I do not believe that a company located in a non-Right-
to-Work State seeking to expand and create new jobs in a Right-to-Work
State should be charged with an unfair labor practice on that basis
alone. Whether the company's actions could be alleged to have violated
the National Labor Relations Act would depend on other facts and
circumstances.
[Whereupon, at 11:50 a.m., the hearing was adjourned.]
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