[Senate Hearing 115-374]
[From the U.S. Government Publishing Office]
S. Hrg. 115-374
NOMINATION HEARING FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE
NATIONAL LABOR RELATIONS BOARD
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,
LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
ON
NOMINATION FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE NATIONAL
LABOR RELATIONS BOARD
__________
JULY 13, 2017
__________
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Pensions
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
LAMAR ALEXANDER, Tennessee, Chairman
MICHAEL B. ENZI, Wyoming PATTY MURRAY, Washington
RICHARD BURR, North Carolina BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky AL FRANKEN, Minnesota
SUSAN M. COLLINS, Maine MICHAEL F. BENNET, Colorado
BILL CASSIDY, M.D., Louisiana SHELDON WHITEHOUSE, Rhode Island
TODD YOUNG, Indiana TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas ELIZABETH WARREN, Massachusetts
LISA MURKOWSKI, Alaska TIM KAINE, Virginia
TIM SCOTT, South Carolina MAGGIE HASSAN, New Hampshire
David P. Cleary, Republican Staff Director
Lindsey Ward Seidman, Republican Deputy Staff Director
Evan Schatz, Minority Staff Director
John Righter, Minority Deputy Staff Director
(ii)
C O N T E N T S
----------
STATEMENTS
THURSDAY, JULY 13, 2017
Page
Committee Members
Alexander, Hon. Lamar, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Murray, Hon. Patty, a U.S. Senator from the State of Washington,
opening statement.............................................. 4
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 12
Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana... 15
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 17
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky....... 19
Warren, Hon. Elizabeth, a U.S. Senator from the State of
Massachusetts.................................................. 20
Young, Hon. Todd, a U.S. Senator from the State of Indiana....... 21
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 23
Murphy, Hon. Christopher, a U.S. Senator from the State of
Connecticut.................................................... 25
Hassan, Hon. Maggie, a U.S. Senator from the State of New
Hampshire...................................................... 27
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia....... 28
Witnesses
Pizzella, Patrick, Alexandria, VA, Nominated to be Deputy
Secretary of Labor............................................. 5
Prepared statement........................................... 6
Kaplan, Marvin, Cresskill, NJ, Nominated to be a Member of the
National Labor Relations Board................................. 7
Prepared statement........................................... 8
Emanuel, William, Santa Monica, CA, Nominated to be a Member of
the National Labor Relations Board............................. 10
Prepared statement........................................... 11
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.
New York Times article by Philip Shenon, July 18, 1993....... 39
Preston Gates Ellis & Rouvelas Meeds LLP Lobbying
Registration Form submitted by Senator Franken............. 43
Letters of Support........................................... 46
Response by Patrick Pizella to questions of:
Senator Murkowski........................................ 52
Senator Murray........................................... 53
Senator Casey............................................ 60
Senator Franken.......................................... 61
Senator Whitehouse....................................... 62
Senator Warren........................................... 65
Senator Kaine............................................ 70
(III)
Response by Marvin Kaplan to questions of:
Senator Roberts.......................................... 71
Senator Murray........................................... 71
Senator Casey............................................ 78
Senator Franken.......................................... 79
Senator Whitehouse....................................... 79
Senator Warren........................................... 80
Senator Kaine............................................ 80
Response by William Emanuel to questions of:
Senator Roberts.......................................... 81
Senator Murray........................................... 82
Senator Casey............................................ 86
Senator Franken.......................................... 87
Senator Whitehouse....................................... 88
Senator Warren........................................... 89
Senator Kaine............................................ 90
NOMINATION HEARING FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE
NATIONAL LABOR RELATIONS BOARD
----------
THURSDAY, JULY 13, 2017
U.S. Senate,
Committee on Health, Education, Labor,
and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 9:33 a.m., in
room SD-430, Dirksen Senate Office Building, Hon. Lamar
Alexander, chairman of the committee, presiding.
Present: Senators Alexander, Isakson, Cassidy, Paul, Young,
Murray, Franken, Kaine, Bennet, Murphy, Hassan, Casey and
Warren.
Opening Statement Of Senator Alexander
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
This morning, we're holding a hearing on three nominations,
Patrick Pizzella for Deputy Secretary of the Department of
Labor and Marvin Kaplan and William Emanuel to serve as members
of the National Labor Relations Board. Senator Murray and I
will each have an opening statement. Then I'll introduce the
nominees. After their testimony, Senators will each have 5
minutes of questions, and we'll take whatever time Senators
would like to take for questions after that, if they want a
second round.
Today's hearing is an important one for our Nation's
workers and employers. It's important to get the Department of
Labor properly staffed and to ensure the open seats on the NLRB
are filled. We need a full Board. I'm certainly not the only
one of us who thinks so.
One Democratic Senator said at a hearing on May 16, 2013,
``I strongly support a fully functioning NLRB with
five members. I think confirming the entire slate will
ensure that the NLRB is working for American workers
and employers.''
Another Democratic Senator said at the same hearing,
``What we don't need now--the last thing we need here
in this country is more rancor, more division, more
ideology, at a time when we need the Board fully
functioning. We need five people to get confirmed here.
Any Senator who is standing in the way of getting five
people confirmed and having a functioning Board has a
lot of explaining to do.''
Our chairman then, Senator Harkin, said in September 2014,
``Keeping the NLRB fully staffed and able to do its
work will send a strong message to the American people
that, yes, Washington can work, and our government can
function. It will give certainty to businesses and
ensure workers that someone is looking out for their
rights and ready and able to enforce our Nation's labor
laws.''
Back when we had a requirement for 60 votes on cloture on
the floor of the Senate, I voted for cloture on three of the
NLRB Board members, two of whom I voted against in the end,
just so we could make sure that the Senate had a chance to
consider them by majority vote. I did the same for the NLRB
General Counsel, and I did the same for Secretary Perez. My
hope is that we can have our hearing, move our nominees out
promptly to the floor and confirm them so the government can
function.
The Department of Labor is charged with enforcing laws to
keep workers safe, to ensure workers are paid, to ensure
employers comply with our laws, and the agency also keeps
critical data on our employment market. Secretary Acosta is off
to a fine start with just over 60 days in office. He has many
positions to fill, and today, we're considering the President's
nomination to fill one of the most important ones of those.
Patrick Pizzella brings a wealth of relevant experience in
both Democratic and Republican administrations. He currently
serves as Acting Chairman of the Federal Labor Relations
Authority. Mr. Pizzella has served as a member of the Federal
Labor Relations Authority since November 2013, after being
nominated by President Obama in August 2013, and confirmed by
the Senate on a voice vote.
He served under President George W. Bush from 2001 to 2009
as Assistant Secretary of Labor. He was nominated by President
Bush in April 2001, approved in May without a hearing by the
HELP Committee under Senator Kennedy, and confirmed by the full
Senate 2 days later. He served at the U.S. Office of Personnel
Management, the Small Business Administration, the General
Services Administration.
We received his ethics paperwork on June 23, including his
public financial disclosure and ethics agreement. Based on
these documents, OGE finds that Mr. Pizzella is, ``in
compliance with applicable laws and regulations governing
conflicts of interest.'' The committee received his committee
paperwork on June 29, meeting our requirement that it be at
least 5 days before a hearing.
The NLRB was created in 1935 by the National Labor
Relations Act in response to strife between employees and
employers in the industrial workplace. The Board has five
members with 5-year staggered terms and a general counsel with
a 4-year term. There's no statutory requirement regarding party
affiliation, but the tradition has been for the President to
appoint members on a 3-2 ratio favoring the current
administration, with nominations for the two minority seats
recommended by the Senate minority leader.
The two nominees today are for positions that have been
vacant, one for 23 months, since President Obama declined to
nominate a Republican for the then minority seat, and the other
for 11 months. My hope is that these nominees will help restore
some balance to the Board. After years of playing the role of
advocate, the Board should be restored to the role of neutral
umpire.
Board partisanship didn't start with President Obama.
That's for sure. It became worse in the last several years.
Board decisions designed to help labor unions have contrasted
with the States' movement toward right-to-work laws. Six new
States became right-to-work in the last 6 years, bringing the
total to 28. When the Board is too partisan, it creates
instability in the workplaces. These legal whipsaws create
confusion for employers, employees, and unions and doesn't
serve the intent of the law, which is stable labor relations
and a free flow of commerce.
Here are three actions I considered harmful by the last
administration. One, the joint employer decision. That was the
biggest attack on opportunity for small business men and women
in this country to make their way into the middle class that
anyone has seen in a long time, threatening to destroy the
American dream for owners of the Nation's 780,000 franchise
locations.
The ambush elections rule. The NLRB's ambush election rule
can force a union election in as little as 11 days, before an
employer and many employees even have a chance to figure out
what's going on.
The micro-union decision. Factions of employees within
single stores now have a path to forming their own unions. In
2011, the Board suddenly adopted a new way to define what makes
a local union bargaining unit, changed the law so that any
group of employees with an overwhelming community of interest
could become a bargaining unit and, therefore, a union.
Nominee Marvin Kaplan is currently Chief Counsel for the
Occupational Safety and Health Review Commission, where he has
served since August 2015. From 2009 to 2015, Kaplan worked as
counsel for the House Education and Workforce Committee and the
House Oversight and Government Reform Committee. From 2007 to
2009, he was Special Assistant at the Department of Labor,
Office of Labor-Management Standards.
William Emanuel is currently an attorney at Littler
Mendelson in Los Angeles, working on labor and employment
matters. He spent his career in the private sector,
representing trade associations, hospitals, health care
organizations, schools, and others. He has previously
represented his clients before the NLRB and has filed amicus
briefs on behalf of trade associations.
The committee received Mr. Kaplan's HELP paperwork on June
26. Also on June 26, we received Mr. Kaplan's Office of
Government Ethics paperwork, including his public financial
disclosure and ethics agreement. Based on these documents, OGE
determined that Mr. Kaplan, ``is in compliance with applicable
laws and regulations governing conflicts of interest.''
The committee received Mr. Emanuel's HELP application on
June 30. On July 6, we received his OGE paperwork. Based on
these documents, OGE determined that he is ``in compliance with
applicable laws and regulations governing conflicts of
interest.''
I look forward to hearing the witnesses' testimony.
Senator Murray.
Opening Statement of Senator Murray
Senator Murray. Thank you very much, Chairman Alexander. I
do want to thank Mr. Emanuel and Mr. Kaplan and Mr. Pizzella
for being here today.
Before we begin, Mr. Chairman, I'm sure you're not
surprised that I'm going to once again object to the fact that
we have not had a hearing on the Trumpcare plan. We've heard
reports that the Republicans are considering a variety of ideas
and are planning on introducing a bill today that will be voted
on next week that we haven't had any hearings on or any look
at. What we are hearing is that it will have the same results
of higher costs for working families, loss of coverage for tens
of millions of people, and reverting back to the days when
women were discriminated against by insurance companies.
I just want to remind the Chairman, if Republican leaders
abandon this ideological commitment to undermining our
healthcare system and giving a tax break to corporations and
billionaires, Democrats are willing--we are ready and willing
to work with you to continue fixing our healthcare system in
ways that make healthcare more affordable and workable for
people.
I do want to just say quickly that I really am concerned
about the rushed and unprecedented manner of this hearing
today. The Department of Labor and the National Labor Relations
Board are really vastly different agencies. They operate
independently of each other. I'm disappointed that you did not
hear my request for separate hearings on these extremely
important positions, but we're here today.
Instead, I do think Mr. Emanuel's and Mr. Kaplan's
nominations are being jammed through this committee actually at
a very unprecedented speed while other less controversial
nominees continue to await a hearing. With these appointments,
I'm very concerned that President Trump is once again breaking
his campaign promises of putting workers first and actually
ignoring the core mission of the NLRB.
The National Labor Relations Act gives workers the right to
join together and participate in collective bargaining. It
guarantees workers a voice allowing them to speak up for fair
wages and benefits and for safe working conditions. Strong
unions created our middle class, and for many working families
in the 20th century, a good union job with a right to
collective bargaining helped them move up the economic ladder.
As we all know, over the past few decades, our economy has
favored corporations and those at the top, and we have seen a
decline in unions and union membership across the country, and
with that, the middle class in this country has shrunk, and the
rich got richer, leaving a lot of working families behind. I
believe it is critical now more than ever that we are doing
everything we can to ensure that every worker has a fair shot.
Mr. Emanuel and Mr. Kaplan, as I look at your records, I
see patterns of anti-worker, anti-union, even anti-NLRB
measures.
Mr. Emanuel, you have spent decades advocating for
corporations and special interests by taking on workers by
their efforts to unionize. I have strong reservations about
your ability to protect those workers now, since you've spent a
career fighting against them.
Mr. Kaplan, during your time as a Labor staffer in the
House of Representatives, you prepared and you actually staffed
hearings where your employers railed against the NLRB and the
agency's core mission. In fact, I couldn't find one example of
you supporting the rights of workers and unions. Your lack of
legal experience, as we talked about, practicing before the
NLRB is really concerning to me.
I hope you are prepared today to explain how you believe
your careers, both of you, of fighting against workers' rights
qualifies you to work those issues out now, as the NLRB and its
main goal is to promote collective bargaining and to stand up
for workers.
While the Department of Labor's goals are broader, its main
objective is the same, to stand up for our workers. DOL makes
sure that workers' rights and safety and livelihoods are
protected and seeks to expand economic opportunity to more
workers and families in the country. Yet, as we know, since Day
1, President Trump has rolled back worker protections, he has
promoted policies that make it harder for working families to
be financially secure, and he says he wants to slash the
Department of Labor's budget by 20 percent.
Mr. Pizzella, I will be interested in hearing whether you
agree that rolling back worker protections, prioritizing
corporate special interests, and gutting DOL is in the best
interest of our workers.
I look forward to your testimony today. I will listen to
your responses, and I hope that we can really begin to
understand where the President wants to take our country with
your words today.
Thank you.
The Chairman. Thank you, Senator Murray.
We'll now hear testimony from each of those before us, and
if you could keep your remarks to about 5 minutes, that will
leave more time for questions.
Mr. Pizzella, welcome.
STATEMENT OF PATRICK PIZZELLA, ALEXANDRIA, VA, NOMINATED TO BE
DEPUTY SECRETARY OF LABOR
Mr. Pizzella. Thank you, Mr. Chairman. Chairman Alexander,
Ranking Member Murray, and members of the committee, thank you
for the opportunity to appear before you this morning. I want
to thank you and your staff for all the courtesies shown to me
as I have prepared for this hearing.
Before I begin, I would like to recognize my wonderful
wife, Mary Joy, who is joining me today. She herself previously
served at the Departments of Energy, State, and the General
Services Administration. There is no shortage of Federal
service in our family.
I want to express thanks to my parents, who are no longer
with us, but as members of the greatest generation would be
very proud today. Probably most importantly, I would like to
pay a special thanks to all four of my late grandparents, who
more than 100 years ago, unable to speak, read, or write
English, all got on separate boats and decided to come to
America from somewhere in Italy. And because of their
courageous journey, I sit in this chair today.
This is the fifth time a President of the United States has
nominated me for a position of public trust. I am honored to be
nominated by President Donald Trump for the position of Deputy
Secretary of Labor, and if confirmed, I will do my best to
advance the President and Secretary of Labor Acosta's agenda
for America's workforce.
The Department of Labor's mission is to foster, promote and
develop the welfare of the wage earners, job seekers, and
retirees of the United States; improve working conditions;
advance opportunities for profitable employment; and assure
work-related benefits and rights. With a discretionary budget
of about $10 billion and a mandatory budget of about $34
billion and over 15,000 employees, the challenges are large.
My first experience at a Federal agency was in 1981, and
since then I have spent almost 25 years in the executive branch
at seven different agencies. I believe the nearly 8 years I
spent as Assistant Secretary of Labor for Administration and
Management from 2001 to 2009 has prepared me well for the
position this committee is considering me for today.
I will try to answer your questions, and, if confirmed, I
look forward to working with all of you.
Thank you.
[The prepared statement of Mr. Pizzella follows:]
Prepared Statement of Patrick Pizzella
Thank you Mr. Chairman. Chairman Alexander, Ranking Member Murray
and Members of the committee, thank you for the opportunity to appear
before you this morning. I want to thank you and your staff for all the
courtesies shown to me as I have prepared for this hearing.
Before I begin, I would like to recognize my wonderful wife Mary
Joy (MJ) who is joining me today; she herself previously served at the
Departments of Energy, State and the General Services Administration.
I want to express thanks to my parents who are no longer with us,
but as members of the ``greatest generation'' would be very proud
today.
Probably, most importantly, I would like to pay a special thanks to
all four of my late grandparents. Who more than 100 years ago, unable
to speak, read or write English all got on separate boats and decided
to come to America from somewhere in Italy. And because of their
courageous journey I sit in this chair today.
This is the fifth time a President of the United States has
nominated me for a position of public trust. I am honored to be
nominated by President Donald Trump for the position of Deputy
Secretary of Labor, and if confirmed, I will do my best to advance the
President and Secretary of Labor Acosta's agenda for America's
workforce.
The Department of Labor's mission is to foster, promote and develop
the welfare of the wage earners, job seekers and retirees of the United
States; improve working conditions; advance opportunities for
profitable employment; and assure work-
related benefits and rights. With a discretionary budget of about $10
billion and mandatory budget of $34 billion and over 15,000 employees--
the challenges, are large.
My first experience at a Federal agency was in 1981 and since then
I have spent almost 25 years in the executive branch at seven different
agencies.I believe the nearly 8 years I spent as Assistant Secretary of
Labor for Administration and Management from 2001 to 2009 has prepared
me well for the position this committee is considering me for today.
I will try to answer your questions, and if confirmed, I look
forward to working with all of you.
Thank you.
The Chairman. Thank you, Mr. Pizzella.
Mr. Kaplan.
STATEMENT OF MARVIN KAPLAN, CRESSKILL, NJ, NOMINATED TO BE A
MEMBER OF THE NATIONAL LABOR RELATIONS BOARD
Mr. Kaplan. Thank you, Chairman Alexander, Ranking Member
Murray, and members of the committee. It is a great honor to
appear before you today with my fellow nominees and be
considered as a potential member of the National Labor
Relations Board.
Unfortunately, my wife, Dr. Ladin Yurteri-Kaplan, and son,
Eliaydin Kaplan, are not able to join me today. My wife, a
first generation Muslim American, is my greatest supporter and
critic. My son is the best thing that has ever happened to me
and a constant reminder that it is our responsibility to leave
the world better than we found it. I would like to thank them
for their support and sacrifices so that I may continue my
career in public service.
I would also like to thank my parents, Elliot and Jeanne
Kaplan. My father worked tirelessly to make sure we were
provided for. He instilled in me the importance of fair play,
hard work, and patience. My mother taught me compassion,
acceptance, and understanding. They also imparted to me a deep
love for this country and a desire to serve it.
Finally, I would like to thank my in-laws, Sualp and Gonca
Yurteri. Despite the rigors of running a successful small
marble business, they have found time to help take care of my
son. I would not be able to pursue this opportunity without
their support.
Following graduation from law school at Washington
University in St. Louis, after a short stint at a law firm, I
devoted myself to public service, focusing on labor and
employment law. I began my public service career at the U.S.
Department of Labor's Office of Labor Management Standards in
2007. In 2009, I came to Capitol Hill, working for the House
Oversight and Government Reform Committee and subsequently for
the Education and the Workforce Committee. Currently, I am
chief counsel to the Occupational Safety and Health Review
Commission chairman.
In each of these positions, I have gained extensive labor
and employment law experience and developed skills that are
essential for success at the National Labor Relations Board.
At the Department of Labor, I met and worked with
employees, unions, employers, attorneys, congressional staff,
and various interest groups to ensure union democracy,
financial integrity, transparency. It was a unique professional
opportunity to develop and implement labor policy. During this
time, the Office of Labor Management Standards was regularly
the subject of congressional oversight. We endeavored to be
responsive to all congressional inquiries while simultaneously
protecting the integrity of ongoing investigations and the
deliberative process.
I departed the Department of Labor with a substantive
understanding of union structure and collective bargaining, a
respect for congressional oversight, and a deep understanding
of the administrative policymaking process.
In 2009, I became counsel for the Oversight and Government
Reform Committee. The committee has broad oversight
jurisdiction, covering almost the entire Federal Government.
While oversight can be contentious, I was always respectful of
the Administration's position and attempted to find a mutually
agreeable outcome. My time at the House Oversight and
Government Reform Committee highlighted the importance of
transparency and accountability.
I joined the U.S. House Education and the Workforce
Committee in 2012. As Workforce Policy Counsel, I continued to
conduct oversight of the Department of Labor and the National
Labor Relations Board and provided legal and policy advice on
all workforce issues, from labor/management relations to
pensions. My duties and responsibilities required extensive
study of the National Labor Relations Act.
I regularly met with Members of Congress, minority staff,
employees, administration officials, including the General
Counsel and Members of the National Labor Relations Board,
unions, employers, attorneys, and various interest groups. It
was an unparalleled opportunity to debate the most fundamental
labor and employment policies with a broad range of interested
parties. These discussions were bolstered by dozens of
committee hearings. I always approached these issues with an
open mind.
In 2015, I accepted a position at the Occupational Safety
and Health Review Commission. The Commission, like the National
Labor Relations Board, involves appellate level decisionmaking.
As counsel and now chief counsel, I review appeals of
administrative law judge decisions. That review involves the
examination of an extensive hearing record, the analysis of the
judge's opinion, and the evaluation of competing appellate
arguments. From start to finish, this deliberative process is
collaborative, requiring an open mind and the patience to reach
decisions and flesh out opinions.
If confirmed, I will fairly and faithfully enforce the
National Labor Relations Act as it is written and consistent
with its amendments. I will approach each case impartially,
respect longstanding precedent, stay true to the tenets of
statutory construction, endeavor to bridge the divisions at the
National Labor Relations Board, seek public input when
appropriate, and cooperate with congressional oversight.
Thank you for the opportunity to offer these remarks. I
welcome your questions. I also would like to thank all the
members that took time to meet with us. It was very informative
and very helpful to get your opinions in a one-on-one.
[The prepared statement of Mr. Kaplan follows:]
Prepared Statement of Marvin Kaplan
Thank you Chairman Alexander, Ranking Member Murray, and members of
the committee. It is a great honor to appear before you today with my
fellow nominees and to be considered as a potential member of the
National Labor Relations Board.
Unfortunately, my wife, Dr. Ladin Yurteri-Kaplan, and son, Eliaydin
Kaplan, are not able to join me today. My wife, a first generation
Muslim American, is my greatest supporter and critic. My son is the
best thing that has ever happened to me and a constant reminder that it
is our responsibility to leave the world better than we found it. I
would like to thank them for their support and sacrifices so that I may
continue my career in public service.
I would also like to thank my parents, Elliot and Jeanne Kaplan. My
father worked tirelessly to make sure we were provided for. He
instilled in me the importance of fair play, hard work, and patience.
My mother taught me compassion, acceptance, and understanding. They
also imparted to me a deep love for this country and a desire to serve
it.
Finally, I would like to thank my in-laws, Sualp and Gonca Yurteri.
They have been part of my life for the last 19 years. Over that time,
through hard work and devotion, they have built a successful small
marble and stone business. Despite the rigors of their work, they have
found time to help take care of my son. I would not be able to pursue
this opportunity without their support.
Following graduation from law school at Washington University in
St. Louis, where I concentrated on labor and employment law, and after
a short stint at a law firm, I devoted myself to public service,
focusing on labor and employment law. I began my public service career
at the U.S. Department of Labor's Office of Labor Management Standards
in 2007. In 2009, I came to Capitol Hill, working for the House
Oversight and Government Reform Committee and subsequently, for the
Education and the Workforce Committee. Currently, I am chief counsel to
the chairman of the Occupational Safety and Health Review Commission.
In each of these positions, I have gained extensive labor and
employment law experience and developed skills that are essential for
success as a member of the National Labor Relations Board.
At the Department of Labor, I met and worked with employees,
unions, employers, attorneys, congressional staff, and various interest
groups to ensure union democracy, financial integrity, and
transparency. It was a unique professional opportunity to develop and
implement labor policy. During this time, the Office of Labor
Management Standards was regularly the subject of congressional
oversight. We endeavored to be responsive to all congressional
inquiries while simultaneously protecting the integrity of ongoing
investigations and the deliberative process. I departed the Department
of Labor with a substantive understanding of union structure and
collective bargaining, a respect for congressional oversight, and a
deep understanding of the administrative policymaking process.
In 2009, I became counsel for the U.S. House Oversight and
Government Reform Committee. The committee has broad oversight
jurisdiction, covering almost the entire Federal Government. At the
direction of then-Ranking Member Issa, I was responsible for ensuring
compliance with dozens of oversight requests and conducting numerous
investigations aimed at ensuring that Departments and Agencies were
operating in an open and transparent manner, accountable to all
stakeholders, and acting within the bounds of the authority given to
them by Congress. While oversight can be contentious, I was always
respectful of the Administration's position and attempted to find a
mutually agreeable outcome. My time at the U.S. House Oversight and
Government Reform Committee highlighted the importance of transparency
and accountability.
I joined the U.S. House Education and the Workforce Committee in
2012. As Workforce Policy Counsel, I continued to conduct oversight of
the Department of Labor and the National Labor Relations Board, and
provided legal and policy advice on all workforce issues, from labor/
management relations to pensions. My duties and responsibilities
required extensive study of the National Labor Relations Act. I
regularly met with Members of Congress, minority staff, employees,
administration officials, including the General Counsel and members of
the National Labor Relations Board, unions, employers, attorneys, and
various interest groups. It was an unparalleled opportunity to debate
the most fundamental labor and employment policies with a broad range
of interested parties. These discussions were bolstered by dozens of
committee hearings. I always approached these issues with an open mind.
In 2015, I accepted a position at the Occupational Safety and
Health Review Commission (Commission). The Commission, like the
National Labor Relations Board, involves appellate level
decisionmaking. As counsel and now chief counsel, I review appeals of
administrative law judge decisions. That review involves the
examination of an extensive hearing record, the legal analysis of the
judge's opinion, and the evaluation of competing appellate arguments.
From start to finish, this deliberative and decisional process is
collaborative, requiring an open mind and patience to reach decisions
and flesh out opinions.
If confirmed, I will fairly and faithfully enforce the National
Labor Relations Act as it is written and consistent with its
amendments. I will approach each case impartially, respect longstanding
precedent, stay true to the tenets of statutory construction, endeavor
to bridge the divisions at the National Labor Relations Board, seek
public input when appropriate, and cooperate with congressional
oversight.
Thank you for the opportunity to offer these opening remarks. I
welcome your questions.
The Chairman. Thank you, Mr. Kaplan.
Mr. Emanuel, welcome.
STATEMENT OF WILLIAM EMANUEL OF SANTA MONICA, CA, NOMINATED TO
BE A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD
Mr. Emanuel. Thank you, Senator.
Chairman Alexander, Ranking Member Murray, and members of
the committee, I am honored to appear before you today as a
nominee for the National Labor Relations Board. My wife, Betsy,
is seated directly behind me. She has made it possible for me
to accept this position by agreeing to leave her home and
family in California and move with me to Washington, DC, for
which I am grateful. Our three children are very busy with
their careers and family responsibilities back in California
and could not be here today.
I am grateful to President Trump for nominating me for this
position. There is no greater honor for a labor lawyer than
serving as a member of the National Labor Relations Board.
I believe that I am well-qualified for this position. I
practiced law as a labor and employment lawyer in Los Angeles
for my entire career, which has spanned several decades. During
that time, I have focused primarily on traditional labor law
issues which involve the NLRB and the National Labor Relations
Act. In addition to litigating labor cases before the NLRB and
the courts, my practice has included collective bargaining,
strikes and picket lines, labor arbitration cases, labor
injunction litigation, union organizing campaigns, unfair labor
practice charges, and the other issues that labor lawyers
confront on a daily basis.
In addition, I represented a major hospital association
during the deliberations by Congress over the healthcare
amendments to the National Labor Relations Act which were
enacted in 1974. This involved negotiating the language of the
amendments with labor union representatives and then also
testifying at two hearings before the Senate Labor Committee
regarding the legislation. Subsequently, I testified before the
NLRB when it adopted special rules for hospital bargaining
units, which were adopted in 1989.
I have also served for many years as a contributing editor
of the leading treatise on the National Labor Relations Act,
which is named The Developing Labor Law. In addition, I have
actively participated in committees of the American Bar
Association and other organizations that focus on that statute,
and in 1974, the NLRB asked me to serve on an advisory
committee for that agency regarding the agency's procedures,
which I did. As a result of my experience in the--of my years
of experience in the practice of labor law and my Bar
Association activities, I am personally acquainted with all of
the current Board members, which should be very helpful in
discussing and resolving the complex issues to be decided by
the Board in the years ahead.
In addition to my professional experience in the field of
labor law, I also understand the workplace from a very
practical standpoint, which I think will be helpful in this
position. During my college and high school years, I worked as
a railroad switchman in the Milwaukee freight yards, as a
brewery worker, as a construction worker, as a bartender, as a
grocery clerk, and in several other jobs.
In 1998, I was honored by being elected as a Fellow of the
College of Labor and Employment Lawyers, which includes labor
lawyers on the union side as well as those who represent
employers. I earned my undergraduate degree at Marquette
University and my law degree at Georgetown University here in
Washington.
I look forward to working with the other Board members in
resolving the difficult issues that the Board will face in the
next several years.
Thank you.
[The prepared statement of Mr. Emanuel follows:]
Prepared Statement of William J. Emanuel
Chairman Alexander, Ranking Member Murray, and Members of the
committee: I am honored to appear before you today as a nominee for the
National Labor Relations Board. My wife Betsy is seated behind me. Our
three children are busy with their careers and family responsibilities
in California and could not be here on short notice.
I am grateful to President Trump for nominating me for this
position. There is no greater honor for a labor lawyer than serving as
a member of the NLRB.
I believe I am well-qualified for this position. I have practiced
law as a labor and employment lawyer in Los Angeles for my entire
career, which has spanned several decades. During that time, I have
focused primarily on traditional labor law issues, which involve the
NLRB and the National Labor Relations Act. In addition to litigating
labor cases before the Board and the courts, my practice has involved
collective bargaining, strikes and picket lines, labor arbitration,
labor injunctions, organizing campaigns, unfair labor practice charges,
and the other issues labor lawyers confront on a daily basis.
In addition, I represented a major hospital association during the
deliberations by Congress over the health care amendments to the NLRA,
which were enacted in 1974. This involved negotiating the language of
the amendments with union representatives, and also testifying at two
hearings before the Senate Labor Committee. Subsequently, I testified
before the Board when it adopted special rules for hospital bargaining
units, which were adopted in 1989.
I have also served for many years as a contributing editor of The
Developing Labor Law, which is the leading treatise on the NLRA. In
addition, I have actively participated in committees of the American
Bar Association and other organizations that focus on that statute. In
1994, I served on an advisory committee for the NLRB on agency
procedures.
As a result of my years of experience in the practice of labor law
and my bar association activities, I am personally acquainted with all
of the current Board members, which should be helpful in discussing and
resolving the complex issues to be decided by the Board.
In addition to my professional experience in the field of labor
law, I also understand the workplace from a practical standpoint.
During my college and high school years, I worked as a railroad
switchman, brewery worker, construction worker, bartender, grocery
clerk, and in several other jobs.
In 1998, I was honored by being elected as a Fellow of the College
of Labor and Employment Lawyers, which includes labor lawyers on the
union side as well as those who represent employers.
I earned my undergraduate degree at Marquette University, and my
law degree at Georgetown University.
I look forward to working with the other Board members in resolving
the difficult issues that the Board will face in the next several
years.
Thank you.
The Chairman. Thank you, Mr. Emanuel, and thanks to all of
you.
We'll now have 5-minute rounds of questions by Senators.
I'm going to call on Senator Isakson first.
Just on the question of whether we're rushing the nominees,
Mr. Kaplan's and Mr. Pizzella's nominations have been pending
for 23 days, Mr. Emanuel's for 14 days. We have all your
papers. By comparison, under Chairman Harkin, the HELP
Committee held hearings on several NLRB nominees with far less
time for consideration. Current Board member McFerran's hearing
was 8 days after her nomination. Former Board member Schiffer's
hearing was 7 days after her nomination. The committee marked
her nomination up the next day. Former Board member Hirozawa's
hearing was also 7 days after his nomination. His markup was
also the next day.
Mr. Pizzella offered to meet with all HELP Committee
members before the hearing. He met with 13 of them, including 6
of the Democratic members. Mr. Kaplan and Mr. Emanuel also
offered to meet with all HELP members. Mr. Kaplan met with 10
of them, including 5 Democratic members. Mr. Emanuel met with
nine, including five Democratic members.
Senator Isakson.
Statement of Senator Isakson
Senator Isakson. Thank you, Mr. Chairman.
Thanks to all of you for coming to my office and meeting
with me. I enjoyed the meeting very much, and, as always, I
learned something.
Starting with Mr. Pizzella and going to each member, would
you please tell me in a brief sentence or two a description of
what you think your job and responsibility will be as a
National Labor Relations Board member?
Mr. Pizzella. I'll obviously address the Department of
Labor as the Deputy Secretary possibility. I think having
worked there before for 8 years--I worked under three different
Deputy Secretaries and worked closely with the Secretary.
The Deputy Secretary's role has always been, at least in my
experience, one where--as sort of a chief operating officer,
someone who is making sure that a department with 15,000
employees that administer 180 laws is running in an efficient
and effective way for a few reasons. No. 1, we have that
responsibility to the American people. No. 2, in order to
assist both the President's and the Secretary's agenda, we need
to have a department that runs in an efficient and effective
way.
I believe that the skill set I have and my focus on the
agenda of the President and the Secretary will aid me in the
job as Deputy Secretary.
Senator Isakson. Correcting my question, as Deputy
Secretary, that would be your definition, not as a member of
NLRB.
Mr. Pizzella. Right.
Senator Isakson. But these two gentlemen will be NLRB. In a
couple of sentences, would you describe to me how you see your
role as a member of the NLRB?
Mr. Kaplan. I think it's pretty straightforward, to
expeditiously, fairly, and impartially determine the cases that
come before us in conjunction with our other Board members.
Senator Isakson. A baseball analogy--you call balls and
strikes, you think?
Mr. Kaplan. After an exhaustive review of the record, a
number of meetings with the members, both Republican and
Democrat, meetings with your staff, a review of the statute, a
review of the precedent, a review of court precedent, a review
of the legislative history, yes, et cetera, et cetera. It's a
long process, but when it's done right, it results in good
decisions.
Senator Isakson. Mr. Emanuel.
Mr. Emanuel. I would agree with that, Senator. As Board
members, we would serve in what is known as a quasi-judicial
capacity, which means that we would review cases that come up
from the regions and from the administrative law judges and
make decisions on a case-by-case basis as to whether the
decisions below were correct or not, and if not, how they
needed to be amended.
We would start with the statute as it is written and the
intent of Congress, and then we review the facts of the case,
and many of the NLRB's cases are extremely fact-intensive, and,
of course, Supreme Court precedent is important, and the court
has already decided several fundamental principles. We have to
take that into account. We consider the arguments of the
parties, obviously, and the views of our colleagues, and then
we come to a decision on a case-by-case basis.
Senator Isakson. Mr. Pizzella, as Deputy Secretary, there's
one very important role you're going to have, which I'd like
for you to opine on for just a second. I'm the chairman of the
Veteran Affairs Committee and work very hard for the veterans
of this country, most of whom, or many of whom are married
while on duty. Their spouses work in the workplace in the
community where their husband is transferred to the base of
operation. Many of their jobs require licensing by the
equivalency of a State labor board or a State occupational
licensing board or whatever it might be--plumbers, whatever it
might be.
One of the difficulties we have for our military families
is that when they're transferred from, say, Fort Benning in
Georgia to Fort Hood or to MacDill Air Force Base or to
somewhere in another State, the transferability of the license
of the trailing spouse is not treated with reciprocity in the
State they go to. Do you see a role, or do you see any way you
could help us to get a more seamless approach to that so that
we can have better reciprocity and transferability of
occupational licensing from one State to the next?
Mr. Pizzella. Thank you for that question, Senator. As you
know, the Department of Labor has the Veterans Employment and
Training Service as part of its mission. I see a role, one of
certainly encouraging and trying to bring together States to be
more reciprocal in the way they treat licensing and
occupations. I think--we have one role. I think there's other
roles, and that has to do with the State level.
Second, there's also sort of a litigation role. There's an
organization in Washington called the Institute for Justice
that has made a bit of crusade over the past 10 years or so in
trying to break down these licensing requirements, particularly
for positions that perhaps--we're not talking about doctors or
lawyers. We're talking about individuals in professions that
are--the skills are very transferable and portable.
I think it's threefold. It's the Department of Labor trying
to provide some leadership. I think it's States trying to
coordinate this a little bit. It seems to be something that
everyone should somewhat agree on.
The Chairman. We need to wrap up. We're running out of
time.
Senator Isakson. Thank you, Mr. Chairman.
Mr. Pizzella. Thank you. I'm sorry. I didn't see that.
The Chairman. Senator Murray.
Senator Murray. Thank you, Mr. Chairman.
Mr. Emanuel, let me start with you. You once wrote that
the, ``primary purpose of the national labor law remains to
assist unions in the organization of employees.'' Do you still
believe the National Labor Relations Act is meant to encourage
collective bargaining?
Mr. Emanuel. Certainly. That is one of the principal
purposes of the National Labor Relations Act, and it's stated
right in section 1 of the statute. There are other important
purposes that are stated later in the statute, specifically in
the Taft-Hartley amendments of 1947, and one of those is to
protect the rights of employers as well as the rights of
employees, and also to protect the rights of individual
employees as opposed to labor unions when difficulties arise in
that area. Also, one purpose is to protect the rights of the
public in connection with labor disputes affecting commerce.
All of those purposes are set forth in the statute, and those
are the goals that we would seek to achieve in deciding our
cases.
Senator Murray. The preamble of the NLRA says it is the
policy of the United States to encourage collective bargaining.
I wanted to ask--you have 40 years of experience as a labor
attorney. Can you give me an example of when you represented a
union or advocated for a worker or didn't work to discourage
the practice of collective bargaining?
Mr. Emanuel. I haven't worked to discourage the practice of
collective bargaining, Senator. I would take issue with that.
I've been at the bargaining table on numerous occasions
negotiating agreements with labor unions, and I think that
supports the practice of collective bargaining. I don't
disagree that the purpose of the statute is to promote
collective bargaining when employees want to be unionized and
represented by a union for purposes of collective bargaining.
This is a right that employees have, and if employees
choose to engage in collective bargaining through a labor
organization, they have the right to do that. If that happens,
then the employer has to respect that right and engage in
collective bargaining as the statute says.
Senator Murray. Do you think that the employees have--you
have a responsibility to ensure they have the ability to do
that as part of the NLRB? Or do you think the NLRB should work
to discourage members from doing that?
Mr. Emanuel. The NLRB, I think, is neutral on that. The
NLRB exists to protect the rights of employees if they wish to
engage in collective bargaining, and the NLRB does an
incredibly good job at doing that.
Senator Murray. You couldn't give me an example of when you
did represent a union or advocate for a worker?
Mr. Emanuel. No, Senator. In the field of labor law, as a
practical matter, lawyers practice either on the employer's
side or the union's side, and you just don't do both. It's not
feasible. There is a long tradition at the NLRB of labor
lawyers----
Senator Murray. I've got to move on, because I only have 5
minutes, so I appreciate your----
Mr. Emanuel. I'm sorry. Sure.
Senator Murray. Let me move to Mr. Kaplan. President Trump
claimed to have workers' interests at heart. I'm concerned
about his track record since he's been in office. Let me ask
you this. President Trump's businesses have repeatedly been the
subject of cases at the NLRB. For instance, in November, the
Board held that a Trump Hotel in Las Vegas violated the
National Labor Relations Act by refusing to bargain with the
union that represented housekeeping, food and beverage, and
guest services workers.
While there are a number of cases pending against the Trump
organization that were settled last year, there are still a
number of open cases involving President Trump's businesses
before the Board. This is really an unprecedented situation,
and it's really created by the President's refusal to divest
his business assets.
I wanted to ask you how are you going to address these
cases that may come before you against the business of the
person who actually nominated you?
Mr. Kaplan. The Board is entirely independent. We're
appointed to terms, and we can only be removed for cause. If
and when such a case comes before us, I can pledge I will go
down to my ethics officer to ensure that there's no ethical
issue with us participating in the case or me adjudicating the
case. On top of that, you know, as a fundamental matter, the
name on the business or the owner of the business should not
have any effect on any decision we make. That's the pledge we
take when we go to the NLRB and take an impartial role there.
It's the same sort of thing with any business.
Senator Murray. So you would recuse yourself if the ethics
officer said that that needed to happen?
Mr. Kaplan. Absolutely. I would never argue with my ethics
officer.
Senator Murray. All right. I have other questions,
obviously, and a short amount of time when we have an
Appropriations Committee markup at the same time as this
hearing. I will have to submit them for the record. I'm
especially interested in Mr. Pizzella's take on how he's going
to implement a 20 percent budget cut. I will submit that for
the record.
The Chairman. I'd be interested in that, too, Senator
Murray.
Thank you, Senator Murray, and we understand that you have
other responsibilities with the Appropriations Committee this
morning.
Senator Cassidy.
Statement of Senator Cassidy
Senator Cassidy. Mr. Pizzella, over the last 8 years,
there's been a lot of working families who really have
struggled, and there's been weak GDP growth, tepid productivity
growth, and, in a sense, as we move more toward the information
economy, which should be increasing productivity, it just
doesn't seem to have translated into higher wages. Part of your
position will be to somehow create better job opportunities for
those working families who have suffered over the last 8 years
from everything that they have.
Any thoughts on that? How do you go about that?
Mr. Pizzella. A couple of thoughts. I do subscribe to
former President Kennedy's theory that a rising tide lifts all
boats. I think anything that can be done by the executive
branch with Congress to create more economic growth and an
environment for entrepreneurs and businesses to start will help
everybody.
Second, I think----
Senator Cassidy. Are you suggesting by that, implicitly,
that it's going to be the small businesses which lead job
growth as opposed to the larger corporations?
Mr. Pizzella. Yes. Most new businesses started up in this
country, as you know, are small businesses, and the majority of
businesses that are working today fall into the small category,
though the headlines often deal with the large companies.
Senator Cassidy. So regulatory reform, tax relief would be
kind of, I'm sure, a keystone----
Mr. Pizzella. They both would be important to helping
create a better atmosphere for economic growth. I also think--I
think some of you are probably familiar that President Trump
and many of you and a few of the members I've met with--Senator
Franken, in particular, and Senator Collins--have expressed a
real interest in the apprenticeship effort that President Trump
has laid out. He has issued an Executive order, I think, last
month with some very specific plans and goals that the
Secretary of Labor is now, I believe, in the process of putting
together.
The President wants something to happen sooner rather than
later, and it also involves the Secretaries of Commerce and
Education so that there can be some cooperation among the
executive branch agencies to make sure that some of those
people who are either underemployed or unemployed, in
particular, have another opportunity, another pathway, rather
than what's always been a traditional pathway, and that is to
get a skill through an apprenticeship program that they can
turn into a career, and a skill that is portable, so if they
end up moving to Louisiana from Connecticut, the skill they
have will still be useful there. I think tax and regulatory
relief combined with, particularly, the apprenticeship program
and other aspects of the training effort will go a long way to
help.
Senator Cassidy. You have a couple of guys next to you up
for NLRB. Without passing judgment necessarily on the wisdom,
it's been a very active NLRB and very active in the setting of
small businesses, micro-unions, for example. I keep on thinking
of the immigrant who has a subway sandwich shop in Zachary, LA,
who now has two folks who can unionize on.
Any thoughts as to the impact of those rulings upon the
ability of small businesses to start and grow?
Mr. Pizzella. I think I'd be a little out of my lane on
that. The National Labor Relations Board is the one that----
Senator Cassidy. Let me go over to you, Mr. Kaplan.
Mr. Kaplan. Could you repeat the question one more time? I
just want to make sure I get it correct.
Senator Cassidy. Mr. Pizzella mentioned that regulatory
problems have--I'll put it this way. If we're going to start
growing jobs so that the middle class and the working families
begin to have more opportunity, you have to look at both tax
relief and regulatory relief, because there's been an
environment which has inhibited that growth.
The NLRB has actually put forward a fair number of
regulations which have made it quite difficult for the small
businesses to grow. When I speak to my small businesses back
home, they're kind of pulling their hair out. One guy said, ``I
just spent 2 weeks staying out of jail, vis-a-vis, government
regulations, as opposed to growing my business.''
Any thoughts about the NLRB's decisions over the last 8
years, how that's either improved or decreased the ability of
these small businesses to create jobs?
Mr. Kaplan. I can tell you my in-laws share some of the
frustration that you've stated today. They run a small
business, and they have definitely had their ups and downs.
With regard to the NLRB, we adjudicate the case based on
the facts that are presented to us and look at the case in an
impartial manner. To that effect, we carry out the tenets of
the act and the amendments. I'm not really sure, I assume
you're talking about the joint employer standard and things
like that. In the event that those cases come before us, I can
promise you that I will look at them in a fair and impartial
manner and make a determination based on the facts before me.
I'm not inclined to prejudge an issue without the benefit
of staff 's opinions, and, in fact, in some cases, it might be
appropriate to seek public input, which would give an
opportunity to these small businesses to provide us with what's
happening in their situations.
Senator Cassidy. I'm out of time. I yield back.
The Chairman. Thank you, Senator Cassidy.
Senator Casey.
Statement of Senator Casey
Senator Casey. Thank you, Mr. Chairman.
I wanted to start this morning with a reference that the
Chairman made about the National Labor Relations Act. In my
home State of Pennsylvania, we've had a good portion of our
history, decades and decades and decades, until the more modern
era, where workers were mistreated routinely. It was common
practice, and that was--I think the experience of Pennsylvania
was one of the reasons why we ended up with a National Labor
Relations Act in the first place. It was one of the States
whose experience was a predicate for finally coming together to
enact the NLRA.
The language in the preamble as well as, of course, the
statute itself is critically important. The language that
you've all heard before,
``Experience has proved that protection by law of the
right of employees to organize and bargain collectively
safeguards commerce from injury, impairment, or
interruption and promotes the flow of commerce,''
and it goes on from there.
This isn't simply an act that decided that one group of
Americans were badly treated and, therefore, we should remedy
that with a statute. That's certainly part of the intent. The
focus of the act, one of the intended outcomes, was that there
would be the free flow of commerce. That's critically important
to remind ourselves all these years later, and some of the
reasons that we had to pass this law in the first place are
still with us today, as you know.
I'll start with each of you, and these are simple
questions. I hope we'll get yes, yes, yes. First of all, do you
agree with the National Labor Relations Act in total?
Mr. Emanuel?
Mr. Emanuel. Yes, Senator. Yes.
Senator Casey. Mr. Kaplan?
Mr. Kaplan. We're bound by its language and its amendments,
yes.
Senator Casey. Mr. Pizzella?
Mr. Pizzella. The Department of Labor does not administer
that act. I agree with it, yes.
Senator Casey. Thank you. Should it be the policy of the
United States to protect the rights of employees to bargain
collectively?
Mr. Emanuel?
Mr. Emanuel. Yes, that's one of the statements in the
statute, yes.
Senator Casey. Mr. Kaplan?
Mr. Kaplan. Yes, I would agree.
Senator Casey. Mr. Pizzella?
Mr. Pizzella. Yes, sir.
Senator Casey. I guess I have to ask you, because you're
here to seek support for nominations, what have you done in
your career that would provide evidence that you support those
policies? What would you do, if confirmed to the Board, to
encourage collective bargaining and protecting the rights of
workers?
Mr. Emanuel?
Mr. Emanuel. During my career, Senator, I have represented
many employers, giving them legal guidance on their actions
under the National Labor Relations Act, what they're required
to do and how they're required to do it. By providing that
guidance to my clients, I have furthered the purposes of the
statute, as I see it.
Senator Casey. Any experience representing workers?
Mr. Emanuel. No, Senator. As I mentioned earlier, in the
field of traditional labor law, lawyers either represent
employers or they represent labor unions and workers in
conjunction with that, and you don't cross over. It's just not
feasible for reasons that I don't think we need to go into.
It's just not practical. My entire career was representing
employers, and I've not represented unions or employees.
There are many excellent law firms that represent unions.
We deal with them all the time, and they represent their
clients and we represent our clients, and, hopefully,
everything works out peacefully, and usually it does.
Occasionally, there are disruptions, and then we deal with
them, but that just goes with the territory. In the vast
majority of the cases, that doesn't happen.
Senator Casey. Mr. Kaplan, after your answer, I'll be done.
I'm out of time.
Mr. Kaplan. Yes, 6 seconds. Certainly, when I was working
for Members of Congress, I was doing what they asked me to do
and I was their employee. Oversight, in particular, was one of
the areas where we were ensuring that the Board and the
Department of Labor worked within the confines of the
authorizing statute. More than that, with regard to legislation
that Chairman Kline moved while he was chairman, some of the
provisions in there, I would definitely think, in general,
protected employee rights but were--some of them were union--
would assist a union in organizing.
Senator Casey. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Casey.
Senator Paul.
Statement of Senator Paul
Senator Paul. Congratulations to all of you. I guess the
first question really is to Mr. Kaplan and Mr. Emanuel. The
question is about when you can decide fairly, someone's case.
If a person is a Republican and owns a business, will you treat
them differently than a Democrat? Will you treat a case
differently if it's labor versus owners, unions versus owners?
Can you go into any decisions with presuppositions that would
disallow you from making a fair decision, no matter who owns
the business?
Mr. Kaplan. The short answer is no. We go in with blinders
on, as it should be. It doesn't matter who owns the business.
It doesn't matter who the employees are--he or she employees.
It doesn't matter what they do. It's very fact-intensive, and
we evaluate the facts in an impartial manner, and I can pledge
that I would do that at the NLRB. We do the same thing at
OSHRC. It doesn't matter who the employers are, except for
repeat violations and things like that. We analyze it from the
perspective of looking at the case, looking at the facts, and
coming to a good decision.
Mr. Emanuel. I agree, Senator. Our job is to enforce the
law, and it doesn't matter what the names of the parties are.
Senator Paul. Mr. Pizzella, your position is a different
one, in the sense that you do work for an administration that
is a political party. I think most Americans want people in
government to--I think there's something that I like to refer
to as petty partisanship, that you're just blindly for whatever
Republicans are for.
Will you in your job look at issues based on what's best
for all Americans regardless of what party they're in,
understanding that we all have viewpoints over what would work
best for Americans? Do you think you can do that without
resorting to petty partisanship or blindly being for things
just because Republicans are for them?
Mr. Pizzella. Yes, Senator. I think the administration of
law should have nothing to do with partisan politics. I think
you know that the Secretary of Labor, Secretary Acosta, is by
background a former U.S. Attorney, a former Assistant Attorney
General, and a former member of the NLRB. He's a lawyer's
lawyer, and he has stated before this committee that respect
for the individual and respect for the law are two things that
guide him, and they certainly will guide the department.
Partisanship will have no place in administering the laws.
Senator Paul. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Paul.
Senator Franken.
Senator Franken. I know that Senator Murphy has to go
somewhere. I have nowhere to go, evidently, so I will yield.
[Laughter.]
The Chairman. Senator Warren is next, but if she wants----
Senator Franken. Oh, well.
Senator Warren. We're also trying to cover Banking. That's
part of the problem. Can I go ahead and do mine now? Is that
all right with everybody?
The Chairman. You're next in line.
Senator Warren. I'll do it, then.
The Chairman. Senator Franken defers.
Senator Warren. Is that all right with you?
Senator Franken. I feel tricked.
[Laughter.]
Statement of Senator Warren
Senator Warren. Are we good? OK.
I want to followup on some of these questions about
impartiality. For the last few decades, productivity has
increased but workers haven't shared in that growth. Hourly
wages have been virtually flat, adjusted for inflation, for
about 35 years now. One reason is the decline of unions, which,
according to the Economic Policy Institute, accounts for about
20 percent to 30 percent of the increase in earnings in
equality in the United States.
This wasn't an accident. For decades, giant corporations
and their buddies in Congress have waged attacks on unions, and
it's the NLRB's responsibility to stand up to these efforts by
enforcing the laws that protect workers' rights.
Mr. Emanuel, you've spent most of your career as an
attorney at Littler Mendelson, one of the most ruthless union-
busting law firms in the country. I want to understand how
Americans can trust that you're going to protect workers'
rights when you've spent 40 years siding with employers against
the rights of workers.
Mr. Emanuel. Of course, Senator, I wouldn't agree with your
characterization of my law firm, which is the largest law firm
in the world representing many employers in labor and
employment law matters, primarily employment law, but some of
us practice traditional labor law. Senator, if I am confirmed,
when I join the NLRB, as I said in my opening statement, that
will be the greatest honor of my career, and I plan to be an
excellent Board member and an honest Board member and an
objective one and enforce the law, enforce the statute, the
National Labor Relations Act, as it is written by Congress.
Senator Warren. Let's talk about how it is written by
Congress, because I understand the difference between a lawyer
and a judge, but the National Labor Relations Act says that it
is the policy of the United States to encourage workers to
bargain collectively, not to be neutral about collective
bargaining and unionization. That is the law, and your entire
career has been to discourage union membership, and I just
don't understand how we can rely on you to defend workers after
a long career of making it harder for them to join unions.
Let me push to another point. You've also said, Mr.
Emanuel, that if confirmed, you'll follow the White House's
ethics pledge and refrain from participating in matters
involving any of your former clients, which include companies
like Uber and Rite Aid and Nissan for 2 years. Is that correct?
Mr. Emanuel. That's my understanding.
Senator Warren. That's your commitment.
Mr. Emanuel. That's correct, yes.
Senator Warren. I just wanted to make sure.
Mr. Emanuel. Yes.
Senator Warren. I'm also concerned about your lengthy
history of work on three particular labor law topics that will
result in serious conflict of interest. You have written
extensively on whether employers can require workers to waive
their rights to class actions, whether employers can prevent
union workers from protesting on their property, and what the
boundaries of a bargaining unit should be. Some of your views
are pretty extreme and go to the heart of cases that the NLRB
might decide.
For example, you have argued--and I'll quote you here--that
an arbitration agreement that is inconsistent with the NLRA,
the law, is nevertheless enforceable, and that, ``many
employers suffer when employees are able to organize in the
workplace without being arrested for trespassing.''
In cases involving these three matters--class resolution,
workplace organizing, and bargaining unit boundaries--if they
come before the Board during your tenure, will you recuse
yourself? You've already written about them. Will you recuse
yourself on those?
Mr. Emanuel. Senator, as I understand the recusal rule, I
have to recuse myself from all cases involving my law firm, and
if there are elements of the recusal requirement that go beyond
that, I will learn that in an ethics briefing that I will
undergo after I join the Board. I do not believe, however, that
recusal would apply to issues, and the fact that I may have
advised or written a brief on an issue in the past doesn't mean
I would have to recuse myself on that issue.
Senator Warren. I'm over time, but I just want to say on
this, Mr. Emanuel, it's not the work you did as a lawyer, as an
advocate. It's when you wrote and put your own name on it,
independently, as a scholar and as a person who is an expert in
the field, and I'm just saying you have made it clear that you
have prejudged in three areas in which you've put your name on
it.
Giant corporations have----
The Chairman. Everyone else is----
Senator Warren. Fair enough. Fair enough.
The Chairman. Go ahead and complete your sentence.
Senator Warren. Thank you. All I want to say is I think the
American people deserve better.
Thank you, Mr. Chairman.
The Chairman. Senator Young,
Statement of Senator Young
Senator Young. Thank you, Mr. Chairman. I want to thank our
panelists and welcome them here today.
We'll begin with the skills gap, a really important topic
in my State of Indiana, the most manufacturing-intensive State
in the country. We discussed this, Mr. Pizzella, when you and I
visited in my office. Today's workforce is quickly changing,
with the advent of new technologies seemingly every day that
are disrupting how we work, where we work, the types of
industries in which we work, and our education system is
struggling to keep up.
We try and consult with our community college system in the
State of Indiana, Ivy Tech. It's a statewide system, and they
consult with local companies to inform development of their
curriculum.
In our K through 12 system, we have more Hoosier students
right now than ever before that are taking career and technical
education classes. In fact, as of last year, over 50 percent of
all high school students in Indiana were enrolled in such
classes--over 160 approved courses, and many of these courses,
of course, didn't exist a couple of years ago, 5 years,
certainly 10 years ago.
Mr. Pizzella, if confirmed, as I believe you will be, as
Deputy Secretary of Labor, to what extent should local
industries and businesses be part of the CTE discussion?
Mr. Pizzella. Thank you for your question, Senator. They
should be a big part, and we did have a discussion about
Indiana and the exceptional programs that they have in place
and are growing. I didn't realize--I made a note of it--50
percent of your high school students are in the technical area,
and I don't know how that rates among other States, but I bet
it's very, very high, because it's good that technical training
is coming back. There was, I think, a period in time when maybe
it wasn't looked upon as fondly.
There are States with exceptional stories like that. I'm
familiar with the State of South Carolina, who early on was a
bit of a pioneer in putting in place--working with companies
that they were trying to attract, local communities that had
laid-off workers from industries--be it textiles or tobacco--
that were no longer growing, and working with the State
government, and they put together a series of technical
colleges around their State. I learned about this when I was in
school there, how important it was to attract particular
businesses.
The reason, BMW landed in South Carolina didn't have
anything to do with the sunshine. I think it was a package that
they looked at. I'm a big believer in what you're advocating,
and I hope to work with you on that.
Senator Young. That's great. Do you think, based on your
professional experiences, that our young people are
sufficiently informed about their post-secondary options, about
their workforce options after they finish high school? Because
I'll tell you--I'll reveal my thoughts. As I travel around the
State of Indiana, there are some bright spots where creative
things are occurring in our high schools, even in junior high
and elementary schools. I get the sense that there's a real
need for improvements in this area. If, in fact, you agree, how
at the Federal level might we be a force multiplier?
Mr. Pizzella. I do agree, and I think one of the solutions,
perhaps, would be working with the Department of Education and
maybe nudging guidance counselors across the country to make
sure that the students that they're advising know about these
pathways for technical skills and technical education and a
career afterwards that may not involve a full commitment to a
4-year college, because that might not be what's suitable for
them, or it might not be what they actually will enjoy. I think
cooperation among the DOL and Education would be very helpful
in that area.
Senator Young. Continuing with my line of questioning about
technology-focused curriculum in my State of Indiana, in 2015,
South Bend Code School was launched as a result of a
partnership with Fort Wayne, a major city located in northern
Indiana. This school teaches coding and computer programming to
Hoosier children ages 7 to 18. Over 100 students have completed
the program, and another 600 are in the process.
To what extent, Mr. Pizzella, do you believe technology
should be embedded into our courses as we prepare our next
generation workforce? As Deputy Secretary of Labor, what role
do you envision playing in this constant challenge of adapting
to new technology and its importance in our workforce?
Mr. Pizzella. If I heard your question correctly, Senator,
I don't believe the Department of Labor should be imposing on
local communities and schools. I think we should be encouraging
them to do what you're suggesting there. I also just think it
makes common sense, because that's one of the areas where
there's going to be real growth and real need in the future,
and that's technical skills for particularly light
manufacturing companies that want to expand here in America and
some that want to locate here to be closer to our markets.
The Chairman. Thank you, Senator Young.
Senator Franken.
Senator Franken. Thank you, and Senator Murphy now says I
can go. I feel like such a chump, frankly, for what happened.
[Laughter.]
The Chairman. It was a generous and liberal gesture,
though.
Senator Franken. I guess sometimes being liberal ain't so
smart.
[Laughter.]
Statement of Senator Franken
Senator Franken. I'd like to associate myself with Senator
Young's message about skills gaps, and we talked about that at
great length, Mr. Pizzella, yesterday. I'd like to talk to you
about an issue which we also discussed in my office, and I told
you that I would probably ask you about this in the hearing.
As many people recall, Jack Abramoff is a disgraced
lobbyist who served 43 months in prison for bribing Federal
officials and stealing millions of dollars from his clients,
and he wasn't alone in his actions. Twenty-one other Abramoff
associates were convicted in connection with the Abramoff
scandals.
You were a key member of Jack Abramoff 's lobbying team
from about 1996 to 2001. In fact, Abramoff wrote about you in
his book where he described your 1996 hire as the ``perfect
addition to the quickly emerging Team Abramoff team.''
At the time you were a member of Abramoff 's lobbying
operation, the Northern Mariana Islands--which had become a
U.S. territory in 1975--were not subject to the same minimum
wage, and that was passed in 1978, and immigration laws as the
rest of the United States, and there were widespread reports at
the time that workers faced terrible conditions, including
reports of--many of these employees were women brought from the
Philippines and from China--who were told they were going to
America, and they ended up in these jobs in the Northern
Mariana Islands, and there were forced abortions, prostitution,
and routine beatings.
You've been nominated to a position where you'll be closely
involved with enforcing minimum wage laws and other worker
protections. Yet, as we discussed in my office, one of the key
issues you lobbied on was to block bipartisan legislation for
basic worker protections in the Northern Mariana Islands, where
garment manufacturers could produce clothing labeled made in
the U.S.A. without having to comply with U.S. minimum wage
laws. In fact, the Mariana Islands were your firm's largest
lobbying client.
Obviously, that is a concerning history for someone who
will now be charged with enforcing worker protection laws. Were
you aware of those horrible conditions even while you lobbied
against minimum wage protection for workers?
Mr. Pizzella. First of all, Senator, thank you. You did say
you intended to ask the question, and I appreciate that in our
meeting yesterday, and I'm prepared to address the issue. I was
not aware of any such thing. I did not know. I just learned
that 21 of Mr. Abramoff 's colleagues were also convicted of
wrong----
Senator Franken. Let me just----
Mr. Pizzella. I was not one of them. I just want to be
clear about that. I was never----
Senator Franken. I understand that. Congratulations on
that.
[Laughter.]
Mr. Pizzella. Thank you.
Senator Franken. The fact that you didn't know this while
you were lobbying--in 1992, Representative George Miller held a
hearing on the issue. The New York Times and other major
publications ran a number of stories on the issues dating back
to at least 1993.
In 1997, President Clinton wrote a letter to the Governor
in the Northern Mariana Islands who had hired Team Abramoff to
oppose raising minimum wage. In the letter, Clinton declared
working conditions on the island to be inconsistent with our
country's values.
In 1998, Senator Frank Murkowski, one of our member's
father, visited the islands and found, ``living conditions that
simply should not exist in the United States of America,'' and
he introduced legislation to stop the terrible abuses that were
taking place. Did you and the so-called Team Abramoff lobbyists
lobby against the Murkowski legislation?
Mr. Pizzella. We might have. I don't actually remember if
we lobbied against that legislation, but I would assume we did.
Senator Franken. Would it bother you to know that you were
lobbying against protections for thousands of workers who were
being abused? Would that bother you?
Mr. Pizzella. Of course, it would. What you've mentioned
were allegations made. We were----
Senator Franken. Allegations that were documented many
times over and over again while you were lobbying against----
Mr. Pizzella. Increasing the minimum wage.
Senator Franken [continuing]. Increasing the minimum wage.
Mr. Pizzella. Yes.
Senator Franken. What I'm saying is these were documented.
They aren't just accusations. I just think that these stories
are really sordid, and I think that if someone who is going to
be in your position--I'm sorry. I'm over my time. I think this
is a pretty shocking history to have been involved in, and I'll
put into the record some of the reporting that was done over
this period.
[The information referred to was not available at time of
press.]
Senator Franken. It was hard to miss, and it would be
especially hard to miss if you were lobbying against Senator
Murkowski's legislation, which was speaking directly to the
horrible abuses that were happening in the Northern Mariana
Islands at the time.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Franken.
There's an Appropriations markup that I need to go vote in,
and Senator Isakson has agreed to chair the committee while I'm
gone. We'll go next to Senator Murphy and then next to Senator
Kaine, and then I'll be back to ask my own questions after
that.
Senator Murphy.
Statement of Senator Murphy
Senator Murphy. Thank you very much, Mr. Chairman.
As the Chairman departs, I know I'm going to sound like a
broken record on this issue, but this hearing is really
important. It's part of our obligation as a committee to review
the nominations of those that are appointed to boards under
this committee's jurisdiction, departments under this
committee's jurisdiction.
It's also the responsibility of this committee to oversee
the healthcare policy of this country, and though there is a
meeting that many people are leaving for in the Appropriations
Committee, there's also an 11:30 meeting behind closed doors
attended only by Republican Senators today in which they are
going to talk about a healthcare bill that reorders one-fifth
of the American economy that does not come before the Health
Committee. That continues to be an outrage that is worth
addressing every time that we meet.
I appreciate, Mr. Kaplan and Mr. Emanuel, your answers to
Senator Paul and Senator Warren in which you stated that you
were going to let the facts lead where they may, let the law
dictate to these cases, not bring in to the consideration of
these cases your employment history or your political views.
You do understand that there are a lot of folks outside this
place who follow employment law, who follow the NLRB, who do
think the fix is in, who think that when the two of you are put
on the Board, you are going to automatically begin the process
of overturning some very important decisions that were made
during the Obama administration because of your political views
and because of your employment history.
I'll just remind you of something that a great
Connecticutian once said, which is that when in doubt, tell the
truth. It will confound your enemies and astound your friends.
That is Mark Twain, and if you heed his advice, you will do
just fine.
Along those lines, let me just ask you both two questions
based upon a conversation we had in our office regarding a
matter pending in Connecticut regarding the ability of graduate
teachers to organize. I won't get into the details of the case,
because I know it's not appropriate for you to opine on that.
Let me ask you two more general questions. First, on the
subject of whether teachers who are also graduate students
would have the ability to organize, here's the general
question. Would you agree that the ability to organize, the
ability to be treated as an employee, is not dependent on your
compensation coming in the form of a paycheck, that there are a
whole host of factors that may include compensation coming in a
form other than a paycheck that would allow you to be
considered an employee with the right to bargain?
Mr. Emanuel. Senator, I would say that the question about
whether a certain individual is an employee under the statute
would depend on various factors. That might be one of them. We
would have to look at, again, all the facts involving those
faculty members and the statute as it's written and the
arguments of the parties and make a determination as best we
can, as objectively as we can, as to whether those students are
employees under the statute.
Senator Murphy. Mr. Kaplan.
Mr. Kaplan. I think the issue raises a relatively novel
one, and we would--I agree with Bill on this, that we would--it
would be very fact-intensive. We talked about this when we
spoke in your office. Something like this that's so new and
hasn't been adjudicated in a thorough fashion--it would
probably be a good idea to reach out to the community and get
amicus briefs and understand the positions of all the parties
involved without--to help inform us as we make those
determinations.
Senator Murphy. Just to be clear, this has been
adjudicated, so this is a decision by the NLRB that gives
rights very clearly to students who are under these
circumstances to organize. You would be overturning existing
precedent should you decide that graduate students who get
compensation in the form of tuition are not allowed to
organize.
Mr. Kaplan. I never meant to imply that I was going to
overturn or anything like that. We would have to look at the
facts, though, if a case like this came before us.
Senator Murphy. Let me ask a second question, which is on
the issue of units within an employer being able to organize
distinct from the overall pool of employees. Again, I just want
to make sure that this is a fact-intensive question when you
are looking at what we might call micro-units, what we might
call smaller units, department units, and their ability to
organize. That is a fact-dependent question as to whether they
have the legal ability to negotiate separate and aside from the
entirety of the employees at the company.
Mr. Emanuel. It's a fact-intensive issue, and we would have
to consider the facts and also the existing Board law and make
a determination. In that particular case that we discussed in
your office yesterday, we're familiar with that case, and I
went back and checked it, and there were nine separate
departmental units that were approved in that case, which is
quite extraordinary. In my experience of many years, I've never
encountered a bargaining structure like that with nine separate
departmental units. We would, in that case or any other case,
look at the facts and decide how to apply the law and make a
decision.
Senator Murphy. I'll let it go there. I'm over my time. I
would just say that, as you know, institutions of higher
education are extraordinary in that each one of them has a very
different way of administering departments. At Yale, the
regional board found very clearly that because each department
is autonomous in terms of how they treat their employees that
those department employees were allowed to organize by
department, and I look forward to you reviewing the facts of
that case and the precedent that has already been established
by the regional board.
Thank you, Mr. Chairman.
Senator Isakson [presiding]. Senator Hassan.
Statement of Senator Hassan
Senator Hassan. Thank you very much to the Chair and
Ranking Member and to all of our nominees here this morning.
Congratulations on your nominations.
Historically, working class families have been able to gain
ground economically because of the advocacy of their unions.
Many important rights and protections can be attributed to
workers joining forces through unions, including, but not
limited to, workplace safety and wage and hour regulations.
We know that working class families today are struggling.
Wages are stagnant, and benefits many rely on continue to roll
back. The nominations before us today, the three of you, will
help determine whether workers will be able to continue to
effectively join together to protect their interests, and
that's what I really want to touch on this morning.
I want to start, Mr. Pizzella, with you. During our
conversation--and thank you for making time to come see me--all
of us--on short notice. Thank all three of you for spending
time.
Mr. Pizzella, during our conversation, you expressed the
importance of agencies being more efficient so they're able to
cut costs. With the Department of Labor's proposed 21 percent
budget reduction, important programs will be severely reduced
and even eliminated well beyond implementing efficiencies. New
Hampshire, for instance, receives $6 million annually under the
Workforce Innovation and Opportunity Act. That money funds
meeting workforce demands of our State's employers, training
dislocated workers, and ensuring that our youth are prepared to
join the workforce.
Can you explain how the major cuts in this budget proposal
supports the President's and the Department's mission to expand
apprenticeship and other workforce development? In the past,
have you supported the reduction of official time used by union
representatives to reduce costs?
Mr. Pizzella. OK. Let me take that first question. As you
well know, the President's budget is pending here before
Congress, and over the course of the next several months,
there'll be some final resolution of what that budget comes out
as, and it will be the job of the Department of Labor, and if I
should be confirmed, I'll be part of the team that will be
implementing that budget. I do believe that there are always
efficiencies that can be made and improved.
I would also point out that part of the budget that the
President has proposed specifically places increases, slight
increases, in the enforcement agencies, which is the core part
of the mission, historically, of the Department of Labor. In
the area of EBSA, there's an uptick. In the Wage and Hour
Division, there's an uptick. In OSHA, there's an uptick.
Senator Hassan. I'm going to interrupt a little bit because
I've got three of you here. Just in terms of the apprenticeship
and training programs, how are we going to strengthen those
programs with a 21 percent cut in the budget?
Mr. Pizzella. The apprenticeship program is a major
priority of the Administration, and I believe it will get the
appropriate amount of focus and resources that are needed to
carry out what the President would like to see carried out. I
can't tell you about that now, because I'm not there, and the
Executive order was just signed last month. I know there's a
lot of activity to implementing that, to getting cooperation
from both the Secretaries of Commerce and Education, and I know
this is a major priority for Secretary Acosta. The
apprenticeship program----
Senator Hassan. I'm sorry to cut you off, but I have two
other witnesses in a hearing that we're trying to have on three
different nominations. Thank you for that, and I'll ask you to
respond to my question about the use of official time on the
record, please.
Mr. Emanuel, you've had a long career as an employment
lawyer and certainly have spent that time advocating for
business interests in both the labor and employment side on the
management's side of negotiating. As we discussed, I'm a former
labor and business attorney myself, and I've represented large
employers, too.
In my previous position, often on the management side of
the bargaining table, I developed a great appreciation for the
value that unions brought to workers from ensuring safe
workplaces to good pay and benefits that help people live
middle-class lives. Can you explain a case or reference a case
you've worked on where you were able to recognize the positive
impact unions have on a contract outcome?
Mr. Emanuel. In the typical case in which I was involved at
the bargaining table, the wages and benefits generally tended
to increase, so I would have to say that that's an example.
It's a recurring example. It didn't happen in every case.
Sometimes there were reductions, but they were necessary, and
sometimes the wage and benefits stayed the same. As a general
rule, when a new contract was negotiated, the wages would go
up, at least some, and benefits tended to go up, too, and
that's a real generalization, but it's sort of typical.
Senator Hassan. Thank you. I see my time is up. Mr.
Emanuel, I'll submit a question or two for you, especially
about joint employer rulings, to the record.
Thank you, Mr. Chair.
The Chairman [resuming the chair]. Thank you, Senator
Hassan.
Senator Kaine.
Statement of Senator Kaine
Senator Kaine. Thank you, Mr. Chair, and thanks to the
witnesses. Congratulations on your nominations.
To begin with the nominees for the NLRB, Mr. Emanuel, I
understand that you authored a brief on behalf of Republican
lawmakers, including Senator Enzi, who was then ranking member
of the committee, and others against the NLRB's 2011 decision
in the Specialty Healthcare case. Is that correct?
Mr. Emanuel. I assisted in that brief, yes.
Senator Kaine. If I understand correctly, Mr. Kaplan, after
that decision was rendered, you, as a member of a congressional
staff, helped draft legislation to try to overturn it. Is that
correct?
Mr. Kaplan. It would have been Chairman Kline's
legislation. Yes, that's correct. I was his counsel.
Senator Kaine. Since you're here--and I'm going to put you
under oath--you don't have to be modest. You can say you were
involved. I recognize it was the chair's bill. Thank you for
that.
The employer community and many Republicans in Congress
after that ruling vehemently denounced it, and they said that
the Board's decision would allow for micro-units that would
make it impossible for employers to prevail in union elections
and it would open up employers to these tiny gerry-mandered
units. Do you know what the average bargaining unit size was in
2011 before the Board issued its decision in the Specialty
Healthcare case?
Mr. Kaplan. It's one of the reasons why, frankly, saying
micro-units is probably a poor way to address this issue. In
fact, some of the units that they talk about even now are
smaller than the units that they've objected to with regard
to--under the Specialty Healthcare----
Senator Kaine. The average size of the bargaining unit was
26. Do you know what the average bargaining unit size was last
year?
Mr. Kaplan. No, I don't.
Senator Kaine. Exactly the same, 26. It didn't have the
effect that many were worried that it was going to have.
Do you know, either of you, Mr. Emanuel or Mr. Kaplan, how
many Federal appeals courts have upheld the Board's decision in
Specialty Healthcare since that decision was rendered in 2011?
Mr. Emanuel. There have been several decisions by the
appellate courts, and I would add that on the subject of
appropriate bargaining units, the appellate courts give the
NLRB extreme deference. So it's not surprising that that was
the result by the appellate courts.
Senator Kaine. For the record, seven appellate courts have
upheld decisions that apply to the Specialty Healthcare
decision, and there have been none that have reversed
decisions. The appellate courts have generally found that OK,
and it didn't change the size of the bargaining units as many
predicted that it would, and I think that's important.
Mr. Pizzella, I want to ask you a question. We talked about
workforce issues. You indicated one of the Department's top
priorities in your conversations with the Secretary has been on
the apprenticeship side, and just to follow the line of
questions you were having with Senator Hassan, the President's
proposed budget to us has the apprenticeship funding level at
pretty much exactly the same level as it was under the previous
administration.
Mr. Pizzella. That's correct.
Senator Kaine. The President's proposal with respect to all
other workforce programs is a 40 percent cut. I think the
proposed DOL cut might be 21 percent, but the cut to all other
workforce programs is about 40 percent. Tell me what you
understand about why workforce programs are suggested to be cut
by such a dramatic amount.
Mr. Pizzella. I was obviously not involved in the
formulation or development of it. From my past experience,
there's, I'll say, often a healthy skepticism as to whether or
not a lot of training programs deliver real outcomes that lead
to successful careers and jobs for folks.
Senator Kaine. In your previous experience--what experience
are you talking about?
Mr. Pizzella. When I was at the Department of Labor, and we
were putting together budgets----
Senator Kaine. Just for the record, the years you were at
the Department of Labor?
Mr. Pizzella. 2001 to 2009--January 2009.
Senator Kaine. You're aware that the Senate and the House
together did significant reforms in 2014.
Mr. Pizzella. I am.
Senator Kaine. This committee worked in a bipartisan manner
on those reforms. One of the hallmarks of the reform was some
significant streamlining of the workforce programs, correct?
Mr. Pizzella. Yes, I'm aware of that.
Senator Kaine. Is it your opinion--skepticism about whether
training dollars are being used at their maximum efficiency
would seem normal. We always should want to use programs at
their maximum efficiency. Is it your opinion that we spend too
much on job training in this country?
Mr. Pizzella. No. My opinion would be more that we're not
as focused as we should be on how we spend those dollars, and I
think that's what's part of the--what has propelled this real
interest in apprenticeship training right now, which has seemed
to have taken off with a life of its own just in the last
couple of years, and it wasn't mentioned as prominently 10
years ago as it is now. Meeting not only with you--you
obviously have a lot of expertise in this--but meeting with
just about every one of your colleagues, that was the first
thing they brought up.
Senator Kaine. Can I just say--and I agree that
apprenticeship is great. I like to see that that budget is not
slashed by 40 percent. Spending money better on job training--
what a great idea, but cutting job training by 40 percent--what
a bad idea. I know you didn't prepare the budget. That is more
a question for the OMB director.
At a time when the President is saying, skills are where
it's at, and we need to give people more skills, taking 40
percent out of job training causes us some very significant
concern about whether that's a hollow promise or a promise that
is going to be met. I hope you'll be a strong advocate for job
training programs.
Mr. Pizzella. I'm going to----
Senator Kaine. That are effective.
Mr. Pizzella. Yes, absolutely, that are effective, of
course, yes.
Senator Kaine. No further questions, Mr. Chair.
The Chairman. Thank you, Senator Kaine.
I have not asked my questions yet, but I think Senator
Franken wanted to ask a second round of questions. Does any
other Senator wish to do that?
Senator Franken. I do, but, I mean----
The Chairman. No, no, I'm just checking to see. If no one
else does, what we'll do is go to your questions, and then I'll
ask mine, and then we'll conclude the hearing.
Senator Franken. Thank you for that.
The Chairman. Senator Franken.
Senator Franken. Thank you very much. I'd like to enter
into the record the Preston Gates lobbying registration
disclosure from September--I guess it was filed by the
Secretary of the Senate--September 6, 2000, and includes that
lobbying disclosure on the Commonwealth of the Northern Mariana
Islands against the--on the Murkowski legislation, and it has
Patrick Pizzella's name on it. I'd like to enter that into the
record, please, because he wasn't clear whether he had lobbied
on that.
[The information referred to may be found in Additional
Material.]
In 2014, the NLRB modernized rules that apply when workers
seek to form a union. Under the updated rules, workers who
petition for union representation will be able to have a vote
as soon as it is practical rather than potentially facing
months or years of delays by companies seeking to avoid
recognizing a union.
Mr. Kaplan, when you were a congressional staffer, you
drafted the Workforce Democracy and Fairness Act. Is that
right?
Mr. Kaplan. As a staffer of Chairman Kline, yes.
Senator Franken. One key provision of that bill would
change the NLRB's election rules to say that workers can't vote
on union representation for at least 35 calendar days, even if
there's no other valid reason to delay the election. Is that
right?
Mr. Kaplan. I'm not sure about that second part. I'd have
to go back and review the legislation itself. Chairman Kline,
when he pushed that forward, he would regularly say,
``No one voted for me in less than 35 days, and I
would afford employees the same opportunity to be able
to make an informed decision with regard to choosing
their union representation.''
Senator Franken. Do you know how many days it's been since
you were nominated to the NLRB?
Mr. Kaplan. I believe someone said 23.
Senator Franken. Yes, that's right. If the nomination
markup takes place as scheduled on Wednesday, July 19, the
markup will be 29 days after your nomination. Mr. Emanuel's
hearing would be--today is 14 days after your nomination and 20
days--the markup would be 20 days after your nomination. I
guess the same rules don't apply for this very important job as
a member of the NLRB? I guess that same thinking that Chairman
Kline had doesn't apply to you guys.
I just think that's interesting, and it seems likely that
big business will probably push you to change the NLRB's
modernized election rule if you're confirmed. I just wanted to
point that out, that, evidently, members of the NLRB just--we
don't need as much time for them as--what I'm saying is that
unions should be able to vote sooner than 35 days.
I want to talk about forced arbitration. Mr. Emanuel, you
devoted a considerable amount of time to defending employers'
use of forced arbitration clauses and class action waivers
which prevent workers from banning together to seek justice in
a public court of law when they've been cheated or mistreated
by their employer. Given this experience, I'm concerned about
your willingness to defend workers' rights under the NLRB Act
and the Constitution.
Let's talk about forced arbitration for a moment here. Take
the case of Gretchen Carlson. She's a former Fox News anchor.
Last summer, Ms. Carlson sued Roger Ailes for sexual
harassment. Mr. Ailes' lawyer has tried to force her in a
private arbitration, arguing that Ms. Carlson had breached a
forced arbitration clause in her employment contract. Even
worse, the arbitration clause in Ms. Carlson's contract also
prohibited her from speaking out about the claims.
Ultimately, because the contract was with Fox News and not
Roger Ailes, it was determined that the arbitration clause did
not cover her dispute. Had her case been forced into
arbitration, her colleagues at Fox News, many of whom were also
victims of sexual harassment, would have been left in the dark
about her case and may never have come forward with their own
claims, and the well-documented abuse of women at Fox News may
well have continued.
Mr. Emanuel, would you agree that one benefit of our civil
justice system is ensuring that other victims, including
workers who have faced harassment, are made aware of widespread
wrongdoing and that such awareness allows them to mitigate the
harm to themselves?
Mr. Emanuel. Senator, I am not aware of that case, except
for reading the headlines in the news, so I can't----
Senator Franken. What I said was accurate, so can you take
it as accurate.
Mr. Emanuel. I'm sorry. Would you repeat it, please?
Senator Franken. What I said to you is accurate, and why
don't you just assume it's accurate for the moment instead of
saying you're not familiar with the case--my depiction of it.
Mr. Emanuel. What is your question, please, Senator?
Senator Franken. I'll repeat the question. Would you agree
that one benefit of our civil justice system is ensuring that
other victims, including workers who have faced harassment, are
made aware of widespread wrongdoing, and that such awareness
allows them to mitigate the harm to others?
Mr. Emanuel. As a generalization, I would say that the
civil justice system exists for plaintiffs to sue another
party. In the employment context, that would be their employer.
Whatever derivative effect of that might exist, I don't think
is part of the civil justice system. So, I'm not sure I would
agree with your statement.
Senator Franken. May I just followup?
The Chairman. You are over your time, Senator.
Senator Franken. OK. Thank you.
The Chairman. We can come back to it.
Senator Franken. OK. I'll stay here.
The Chairman. Senator Hassan.
Senator Hassan. Thank you.
Mr. Emanuel, I wanted to take this opportunity to talk
about the issue of misclassification of employees as
independent contractors, because it's an issue that comes up
repeatedly. We have seen misclassification lawsuits regarding,
for example, drivers who were told that they were independent
contractors and not employees. In many of these cases, the
drivers were actually found to be employees.
More recently, the NLRB's general counsel made public that
the agency had settled a case with a company which had
continued to misclassify its employees even in the face of
multiple administrative decisions finding that its drivers were
actually employees.
First, let me ask you: Have you represented any employers
facing allegations of misclassifications, either at the NLRB or
elsewhere?
Mr. Emanuel. Yes.
Senator Hassan. And, second, I understand that you can't
speak to the specifics of any case, but do you agree that when
an employer misclassifies employees as independent contractors,
not only does it undermine competitors who are following the
rules, but do you agree that it illegally interferes with the
workers' right to form unions or act collectively?
Mr. Emanuel. If the individual is properly classified as an
employee and not as an independent contractor--and that's a
very fact-intensive question also involving legal principles,
obviously--then I would agree.
Senator Hassan. My question is if they're misclassified as
independent contractors, and they are told they don't have the
same rights to collectively bargain or organize as an employee
would, is that correct?
Mr. Emanuel. Yes.
Senator Hassan. Thank you. If you're confirmed, what steps
will you take as a Board member to curb this epidemic of
misclassifi-
cation?
Mr. Emanuel. I'm not sure I would agree with the
characterization that it's an epidemic. It does occur. I've
known of cases where employees were misclassified. Like any
other issue that comes before the NLRB, I would consider the
facts of the case--and, again, this is a very fact-intensive
issue--and consider the legal precedents and what the Supreme
Court has held on the issue and the arguments of the parties
and the views of all of my colleagues on the Board and make a
decision as to whether that person was or was not misclassified
as an independent contractor.
Senator Hassan. Thank you. I'd suggest you might want to
look at some of the literature, in particular, in certain
industries like the construction industry, where the rate of
misclassification is high.
Mr. Kaplan, I did want to take this opportunity with a
second round to touch on the NLRB's joint employer ruling, and
I want to do it by way of an example. Let's say if employees at
a janitorial company organized to advocate for the use of safer
cleaning supplies on the job. They go to negotiate with their
employer about it, and the company says that they can't
negotiate with the employees over the supplies because their
contract with the building owner says that they have to use the
supplies provided, for instance, by the building owner.
So now, the employees approach the building owner, but the
building owner refuses to negotiate about safe cleaning
supplies because she says she's not their employer. In a
situation like that, where are employees supposed to go? How do
they get a chance to sit down with decisionmakers, which, in my
example, includes the building owner, to address their health
and safety concerns? Do you agree that there's an issue here?
Mr. Kaplan. I think identifying the employer that can
actually fix it, who has the authority to fix it, to actually
bargain with them to some kind of settlement or some kind of
agreement is a very important part of this. Not to get off
topic, but we see that a lot in the OSHA world as well,
identifying the person that can actually effectuate change.
It's interesting, but I'm not inclined to pontificate on
the appropriateness, and it's very fact-intensive, trying to
figure out who the right employer is; working out whether it is
a joint employer relationship; looking at who controls what;
what they can do; do they actually exert control; don't they
exert control; are they controlling these employees; are they
not controlling these employees. I think to an extent if you
don't go through that entire process and that fact-intensive
process, you rob those employees of the opportunity.
Senator Hassan. I understand that point. Look, you've
worked on legislation to overturn the NLRB's Browning-Ferris
decision on the standard for finding two employers to be joint
employers. I want you to answer this question within the
following context. We are in an increasingly fissured
workplace. If Browning-Ferris isn't the law, and you think it
was wrongly decided, how can we protect the rights of workers
now in this kind of fissured, fragmented workplace?
We have so-called perma-temps, people who are told they're
temporary employees, but that's always going to be their
status. We have contractors and other employees. Do you think
Browning-Ferris was wrongly decided, and, if so, on what
grounds, and how do we address this?
Mr. Kaplan. I don't have--I think that the facts need to be
looked at. I look forward to going to the Board, working with
my staff, working with the other members to determine what the
proper standard is for the units in a collective bargaining
situation. That's a fundamental issue of the Act that the NLRB
must determine, and it's written into the Act. It couldn't be
clearer in the language.
Senator Kaine raised--there's seven cases out there. I
think that's going to be part of the analysis, looking at what
the court has done, recognizing where the court has been,
looking at the facts. I do think when it comes to this multi-
employer bargaining situation, again, I think it's important
that the public participate, because I think there's a lot of
cases that maybe have been the highlights, but maybe it would
be better to understand how it's actually worked out in the
workplace in maybe the less public situations.
Senator Hassan. I thank you.
Thank you, Mr. Chair, for letting me go over time.
I will likely followup with you in writing about this as
well. Thank you.
The Chairman. Thank you, Senator Hassan.
Mr. Emanuel, earlier questions brought up two cases of
NLRB, one involving micro-unions, one involving graduate
students as employees. The intersection of those two cases
produces some interesting questions to me. I'm a former
university president trying to understand the impact of those.
For example, at Yale University, 9 of 56 academic departments
of graduate students have organized into a micro-union as a
result of the combination of those two decisions, the
Northwestern and the Specialty decisions.
Could one of the elements of bargaining between those
students and the university be whether it was appropriate to
teach American Studies at Yale University?
Mr. Emanuel. Senator, I'm not sure of that and----
The Chairman. Would it be appropriate for them to bargain
about whether Yale should have classes before noon?
What if they wanted to bargain about whether they should
either give grades--what if they found it too oppressive as
graduate students to teaching or helping to teach a course to
give grades to all those smart undergraduates, and they decided
they just would give pass or fail instead of grades. Would that
be an appropriate subject of bargaining?
Mr. Emanuel. Sounds unlikely, but for all of these
questions, we really can't prejudge them. We would have to wait
until we get on the Board and look at all the facts and the
legal precedent and make a decision at that time.
The Chairman. I know a common complaint that I had when I
was president of the University of Tennessee was that many of
the brightest graduate students who helped teach didn't speak
English well enough for the undergraduate students to
understand what they were talking about. Would that be an
appropriate subject of bargaining, if Yale decided that it
wanted to require its graduate students to be more proficient
in, say, English if they were going to teach in the graduate
program there?
Mr. Emanuel. That's very difficult to say. That's a
difficult issue, Senator. We would really have to study that.
The Chairman. Can you tell me whether the Northwestern
decision applies to undergraduates as well as graduate
students?
Mr. Emanuel. The Northwestern decision was the football----
The Chairman. I believe the Northwestern also was the
decision about private schools that said that graduate students
were employees and could organize a micro-union. Am I correct?
There was a decision. Maybe it wasn't the--there was a
Northwestern football decision.
Mr. Emanuel. Football, yes, right.
The Chairman. There was a decision that said that graduate
students are employees----
Mr. Emanuel. That's correct.
The Chairman [continuing]. And could form a micro-union.
Mr. Emanuel. That's correct.
The Chairman. Would that also apply to undergraduate
students?
Mr. Emanuel. If that principle--it probably could be
extended, but we would have to take a close look at that and
decide whether other students in addition to teaching
assistants----
The Chairman. I know that in asking this series of
questions, I'm asking you to do something you probably
shouldn't do at a hearing, which is prejudge a case.
Mr. Emanuel. Yes, right.
The Chairman. These decisions lead me to some unreasonable
results. For example, if undergraduate students could organize
into a micro-union and negotiate whether they wanted to go to
class before noon and whether they wanted to take American
Studies or maybe they did not want to take geology, or if it
were extended to say that--on many campuses, particularly for
low-income students, they have work-study programs. They're
employed by the university so they can afford to go to college,
and if all of those students are suddenly employees who can
organize a union, that would discourage universities from
giving those students work-study help.
The suggestion, apparently, was even made while I was out
of the room that tuition help might make a student eligible to
organize a union. If that were the case, clearly, a majority of
students who go to colleges and universities in the United
States have tuition aid, and we would have micro-unions
organized on most of the 6,000 campuses around the country. So,
I would hope that this Board would be very skeptical about
extending that line of thinking.
My time is up. I'll go back to Senator Franken.
Senator Franken. I'll grant you more time.
[Laughter.]
Maybe I don't know my place here.
Mr. Emanuel, I'd like to followup on your last response to
my last question, given that my understanding is that you do
not agree that one benefit of our civil justice system is that
it is public. Is that correct?
Mr. Emanuel. No, I would agree that the civil justice
system is public.
Senator Franken. Is that a benefit? I mean, in other words,
I was talking about being forced into arbitration. We were
talking about this Gretchen Carlson case, where she would have
had to go to arbitration under the contract with Fox about
sexual harassment. She ended up suing Mr. Ailes, so she was
able to have it be public. Part of the arbitration is that it's
private, and nothing gets out. You said that you didn't think
there was any benefit to there being awareness about the harms.
Carlson recently wrote that,
``The arbitration process, often argued to be a
quicker and cheaper method of dispute resolution for
employees, instead has silenced millions of women who
otherwise may have come forward if they knew they were
not alone.''
Is it your position that every woman who faces
discrimination at the hands of their employer should go it
alone and go at it without the knowledge that their co-workers
have faced similarly horrendous behavior?
Mr. Emanuel. Senator, I can't comment on the Gretchen
Carlson case. I'm only vaguely aware of it.
Senator Franken. I'm not asking you to.
Mr. Emanuel. OK.
Senator Franken. What I'm asking you--I don't understand
why you seem so confused about this. Let me explain maybe.
Mr. Emanuel. Thank you.
Senator Franken. OK. In arbitration, you're forced into an
arbitration situation. The information stays within--does not
become public. If you're sexually harassed in an organization
by--at a company, you can't sue them, because there's a
mandatory arbitration clause in your contract, in your
employment contract. Therefore, if you go through that system,
it isn't public. It means that women who are at the same
workplace don't hear from other women that they're being
sexually harassed. I think that's a harm of the mandatory
arbitration system.
If you're sexually harassed at a workplace, you should be
able to go outside the arbitration system so that you're heard
in court, so that your fellow employees can know what's going
on. Very often, it gives the other women the courage--in this
case, women at Fox--gives them the courage to come forward and
the knowledge to come forward. That's what I'm asking you. Do
you understand that?
Mr. Emanuel. I do, Senator, and my reaction is that the
Federal Arbitration Act allows arbitration agreements, and it
provides expressly that the agreements must be enforced as
written. I'm a traditional labor lawyer, and I'm not an expert
on the Federal Arbitration Act. I would think that that would
be a very important part of the answer to your question, that
the agreement very well might be enforceable under that Federal
statute, which has existed----
Senator Franken. I think that's a problem. I want to ask
both you and Mr. Kaplan a question----
The Chairman. He didn't have a chance to finish his
sentence.
Senator Franken. Oh, I'm sorry.
Mr. Emanuel. That's fine. Thank you, Senator.
Senator Franken. I thought he had. OK. This is for both Mr.
Emanuel and Mr. Kaplan. If you take up changes to the NLRB
election rule, do you think the rule should go through the
traditional rulemaking process, requiring public comment in
order to allow all stakeholders to give input?
Mr. Emanuel. Senator, I'm not an expert on rulemaking under
the Administrative Procedure Act, but it seems to me the answer
is that it probably would be required, but I'm not sure.
Senator Franken. Mr. Kaplan?
Mr. Kaplan. I'm not entirely sure if it is required or is
not required, but I do think that public input is an important
part of--if that rule is brought up or if many of these things
are before the Board, I think public comment is helpful.
Senator Franken. My time is up. Thank you.
The Chairman. Thank you, Senator Franken.
Thanks to the three of you for being here. I have a final
question I'd like to ask about the right-to-work laws. Twenty-
eight States now have them, including my own State of
Tennessee. Kentucky and Missouri enacted right-to-work
legislation in 2017. In my experience, these have been
enormously helpful laws to raising family incomes in our State.
We've attracted the American automobile industry to
Tennessee, and nothing has come close to helping to create the
kind of environment that made that a competitive set of
businesses with more than a thousand suppliers providing good
wages to families than our right-to-work law. In 2015, the NLRB
took steps to question whether employees in right-to-work
States who are not union members should be forced to pay
grievance processing fees to the union if they work in a
unionized workplace.
In one example, a Florida union was asking a nonmember to
pay the equivalent of union dues for the remainder of the term
of the collective bargaining agreement in order to raise a
grievance. In this case, it was 4 years' worth of union dues.
For both of the two nominees for the NLRB here, I have two
questions. In Tennessee, it's unlawful to force any employee to
join a union or pay union dues. Do you believe an NLRB decision
or regulation could legally overturn that protection?
Mr. Emanuel. Not in any way that I'm aware of.
The Chairman. Mr. Kaplan.
Mr. Kaplan. Right-to-work rules built into the NLRA was
passed by this body and signed by the President, and I'm not--I
don't think we could--I do not believe that the NLRB could
overturn it.
The Chairman. And, finally, in non-right-to-work States,
employees in unionized workplaces who fail to pay union dues
are sometimes fired under the terms of the collective
bargaining contract. In Tennessee, it is unlawful to fire any
employee for failure to pay union dues. Do you believe the NLRB
has the power to overturn that protection?
Mr. Emanuel. My answer would be the same as before. I'm not
aware of any way that could happen.
Mr. Kaplan. Yes, I would agree.
The Chairman. Thank you.
I ask consent to introduce nine letters of support for Mr.
Kaplan and William Emanuel and a letter of support for Patrick
Pizzella into the record.
[The information referred to may be found in Additional
Material.]
I thank the three of you for your willingness to serve our
country in positions that are important to millions of
Americans. This will conclude our hearing. We would hope to
bring your nominations before the committee shortly and approve
them and send them to the Senate floor for its consideration
and support and hopeful approval.
If Senators wish to ask additional questions of the
nominees, questions for the record are due by 5 p.m. Friday,
July 14. For all other matters, the hearing record will remain
open for 10 days. Members may submit additional information for
the record within that time.
As a matter just for the record, I referred to a case
earlier as the Northwestern case. I should have said the
Columbia case.
Mr. Emanuel. Oh, yes.
The Chairman. The Northwestern case was a case about
organizing football players----
Mr. Emanuel. Right.
The Chairman [continuing]. Which also strikes me as
misguided. I meant the Columbia case.
Our next meeting will be on Wednesday, July 19, at 10 a.m.
to vote on nominations.
Thank you for being here today. The committee will stand
adjourned.
[Additional Material follows.]
ADDITIONAL MATERIAL
[The New York Times,* July 18, 1993]
Made in the U.S.A,?--Hard Labor on a Pacific Island/A special report;
Saipan Sweatshops Are No American Dream
(By Philip Shenon)
Saipan--On this tiny, tropical outpost of the United States, many
people describe what happens to foreign workers here as something close
to servitude.
Every year, thousands of laborers from China, the Philippines and
elsewhere in Asia are flown here. The workers are often bused straight
from the airport to squalid barracks where they live--sometimes for
years--as many as a dozen to a room.
---------------------------------------------------------------------------
* Visit www.nytreprints.com for samples and additional information.
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They are put to work almost immediately in nearby factories within
view of Saipan s pristine beaches, many of them laboring 6 days a week
at about half the Federal minimum wage, stitching together American
brand-name clothes. Familiar Labels.
The labels would be familiar to anyone who has strolled through an
American shopping mall. Over the last year, Arrow, Liz Claiborne, The
Gap, Montgomery Ward, Geoffrey Beene, Eddie Bauer and Levi's have all
made clothes on this palm-fringed island that is part of the American
commonwealth in the Western Pacific, 5,000 miles from the continental
United States.
While many of these garments are manufactured in foreign-owned
factories by foreign workers, the apparel made in the Northern Marianas
often bears another familiar label: ``Made in the U.S.A.'' The American
flag flies over several of the factories.
An estimated $279 million worth of wholesale clothing, virtually
all of it made by foreign labor, was shipped from here last year to the
United States.
part of america: at $2.15 an hour
``We come here because we make more money here than in China,
and because the recruiters in China tell us that Saipan is part
of America,''
said a $2.l5-an-hour factory worker from a village near Shanghai.
The woman, who is in her early 20s, invited a visitor into the
cramped barracks room that she shares with seven other women, their
beds separated only by flimsy cloth sheets. The room also serves as a
kitchen.
``They are not good conditions,'' she says, wrinkling her nose and
pointing to a mildewy hallway strewn with litter. ``If we complain,
then our bosses would send us back to China and take away all of our
money. Our families need the money.''
the sweatshops: no comment from the mall
The biggest industries here--garment manufacturing, tourism and
construction--are all dependent on poorly paid foreign labor, which
explains why--of the 42,000 people who live in the Northern Marianas,
of which Saipan is the largest--more than half are foreign workers.
While clothing from the Northern Marianas made up only about 1
percent of the $29 billion in clothing imported into the United States
last year, it accounts for as much as 20 percent of the clothing sold
by some large American companies.
Several big manufacturers doing business here are silent when asked
about labor practices or about the volume of clothing they import.
Spokesmen for Arrow, The Gap and Montgomery Ward either did not return
phone calls or said they had no comment on labor conditions in the
islands.
A Claiborne spokeswoman acknowledged that the company did make ``a
small percentage of its clothing in the Northern Marianas. A
spokeswoman for Eddie Bauer said the factories here produced only ``an
insignificant percentage of the company's goods. Neither company would
discuss import figures.
industry battles abuses
The industry's trade group, the American Apparel Manufacturers
Association, said its members were doing their best to end labor abuses
in the islands.
``We oppose sweatshops wherever they are,'' said Larry Martin, the
association's spokesman. ``We believe and hope that our members are
abiding by all labor laws.''
One clothing manufacturer, Levi Strauss & Co., has been notably
aggressive in trying to end labor abuses in Saipan. While it continues
to make shirts at five plants on the island, it ended its contracts
last year with the island's largest clothes maker, Willie Tan, after an
investigation by Levi's found evidence of ``unsatisfactory treatment of
workers and violation of the law'' in his factories.
While insisting that his companies never abused or cheated workers,
Mr. Tan, a Philippine-born American businessman, did agree last year to
pay $9 million in back wages and damages to laborers, most of them
Chinese, under a settlement with the U.S. Labor Department.
legal servitude
The plight of foreign workers in the Commonwealth of Northern
Mariana Islands has outraged the few Federal investigators who have
made the long journey across the Pacific--Saipan is far closer to China
and the Philippines than it is to Hawaii--even as they acknowledge that
most of what goes on here is within the law. Visitors to the islands
are also startled by what they see.
``It certainly has its parallels to slavery or indentured
servitude,'' said Neils Jensen, a Christian missionary from New Zealand
who has lived intermittently on Saipan since 1983.
``Many of these workers go into debt for what they think will
be the privilege of working on Saipan. Because they're so
deeply in debt, they can't afford to retaliate or complain or
leave. Their conditions are horrendous.''
Over the years, Washington has granted a variety of concessions to
businesses in Saipan to encourage economic growth and to end
generations of subsistence living for the local islanders. For decades,
the largest employer had been the U.S. Trust Territory government.
Under an agreement approved in 1976, the islands were exempted from
the Federal minimum wage. The Commonwealth government now sets its own
minimum wage, which has been $2.15 an hour since 1984.
(Other American territories, including Guam, which is only 120
miles from Saipan, use the higher Federal guaranteed minimum of $4.25
an hour.)
the exploited: a life of misery under old glory
Yet the Chinese garment workers almost certainly have it better
than many of the other foreign laborers here.
Thousands of Filipinos are employed in the Northern Marianas as
construction workers or maids, jobs that are currently exempted from
the islands' $2.15 minimum wage. Many young Filipino women are brought
to Saipan to work in bars where, they say, they are forced by their
employers to serve as prostitutes for the islands tourists, most of
them Japanese visitors on package tours.
The plight of Asian immigrants who are willing to take great risks
to live and to work in the United States drew international attention
in May, when a rusty freighter carrying 300 undocumented Chinese
immigrants ran aground in New York.
In Saipan, Asian laborers arrive legally, usually in the comfort of
a commercial jet. There is plenty of evidence to suggest that many of
the estimated 23,000 foreign laborers in these islands, like their
undocumented counterparts in the continental United States, face a life
of exploitation and misery under the American flag.
Saipan is the largest of the 14 volcanic islands that make up the
Northern Marianas, scene of some of the bloodiest fighting of World War
II.
mcdonald's and tv reruns
After the war, the islands became a territory of the United States
and eventually a commonwealth. The islanders are American citizens, and
there are reminders everywhere of their ties to the United States, from
the new McDonald's restaurant to a cable-television system that
rebroadcasts ``Murphy Brown'' and the ``Today Show.''
The garment industry was established in the early 1980s as a result
of Federal rules that allow manufacturers here to export clothing to
the American mainland duty free and largely without quotas.
There are now more than 20 factories, most often owned by foreign
investors who were also lured here by the islands' liberal investment
and immigration laws.
Under commonwealth law, foreign investors are welcome, and they
have brought with them a flood of foreign workers who are willing to
accept minimum-wage jobs that local islanders routinely reject. Most of
the islanders work for the local government and receive much more than
the minimum wage.
The commonwealth's Governor, Lorenzo I. DeLeon Guerrero, said that
he had heard the slave-labor comparisons in discussions of foreign
workers. ``It is an insult to us,'' he said. ``There's no slavery
here.''
He also readily acknowledged that some employers take advantage of
foreign workers. ``It's very true that the conditions of these people
should be far better,'' the Governor said. ``We have to be honest about
that.''
the reformers: 30 cents an hour raise and barbed wire
The local legislature approved a law this year to raise the minimum
wage by 30 cents a year for each of the next 7 years and to apply the
minimum to construction workers. The Governor has proposed the creation
of a human rights commission to protect the rights of workers.
The reforms do not go far enough to satisfy many of the
commonwealth's critics--under the new law, Saipan's minimum wage will
not match the current Federal minimum of $4.25 until 1999--and there
are threats in Congress this year to cut off more than $120 million in
Federal subsidies.
``I'm afraid that an awful lot of time and motion is being
wasted trying to give the appearance of reform instead of
actually making real, structural changes,''
said Representative George Miller, a California Democrat who is
chairman of the House Natural Resources Committee, which oversees
American territories.
American labor unions charge that, because of the low wages paid to
foreign workers, the Northern Marianas are stealing jobs from textile
workers in the United States. The unions want the Government to crack
down on the labor abuses here.
``We have rules for protecting products, such as copyright
laws, but seemingly we have no rules to protect the workers who
produce the product--if they happen to be in Saipan,''
said Arthur Gundersheim, director of international affairs for the
Amalgamated Clothing & Textile Workers Union.
no water or electricity
While commonwealth officials insist they are trying to improve the
living conditions of foreign workers, the improvements are not evident
in large Saipan neighborhoods like Susupe, where several oversize tin-
roof plywood shacks serve as workers' barracks. Often they have no
regular water or electricity.
In larger barracks, workers complain of living in virtual
captivity, their housing ringed with barbed wire and patrolled by teams
of uniformed guards.
``The girls have no freedom,'' said a 29-year-old Filipino who
worked in a bar for 5 months before ``escaping'' last year and finding
a different job. She asked that her name not be used for fear that her
family in the Philippines would learn that she had worked as a
prostitute.
While working at the bar, she lived with 20 other women in a three-
bedroom house that they were rarely allowed to leave. ``We were told
that we could not go outside by ourselves, ever,'' she said. ``The boss
was afraid that we would have boyfriends and would sleep with them
without getting money for him.''
going to america
The exploitation of workers often begins long before they arrive
here. Many pay large recruitment fees to middlemen in their homelands
who find them jobs in Saipan. No matter how terrible the working
conditions, they say, they cannot think of going home until the money
is earned back.
Masudur Rahman, 30, said his impoverished family in Bangladesh sold
off much of its farmland outside Dhaka, the capital, to raise the
$4,000 fee demanded by the recruiters for a construction job ``where
the American flag is flying.'' Although the recruiter promised a job
paying $1,500 a month, Mr. Rahman said, he never received more than
$250 a month.
He said he was startled to discover once he arrived in Saipan that
he, like virtually all other foreign laborers, had no right to travel
to the United States.
The recruitment agent said we were going to America, Mr. Raliman
recalled. ``He never said Saipan.''
the exploiters: the harsh lessons of free enterprise
Among the garment industry employers, no one here had been more
successful than Mr. Tan, whose family controls clothing factories that
employ hundreds of foreign workers and ship millions of dollars worth
of clothing each year to the mainland United States.
Mr. Tan's luck appeared to run out last year, when he agreed to pay
$9 million in back wages and damages to more than 1,000 factory workers
to settle the Labor Department charges. The department's investigators
said that workers in Mr. Tan's factories put in as many as 90 hours a
week without overtime and were routinely paid as little as $1.65 an
hour.
Separately, the Occupational Safety and Health Administration
announced last year that its investigation had found ``appalling living
and working conditions'' in Saipan garment factories and barracks,
including those controlled by Mr. Tan.
Although Federal regulations require that workers receive a minimum
of 100 square feet of space per person to cook and sleep, six of Mr.
Tan's workers were found living in one room of 190 square feet. Toilet
facilities were primitive.
charges are dropped
The Occupational Safety and Health Administration dropped the
charges after the Tan companies made $1.3 million in repairs to the
factories and barracks and agreed to pay $76,000 in penalties.
His lawyer, Robert J. O'Connor, said that Mr. Tan agreed to pay the
back wages only because the Labor Department was harassing some of the
factories' clients.
``The Labor Department was putting pressure on our buyers by
putting out press releases implying that they were linked to
slave labor,'' he said. ``We were coerced into the
settlement.''
Mr. O'Connor said that the wages had been withheld not by Mr. Tan's
companies, but by Chinese Government supervisors under a longstanding
agreement with the workers.
``We know that 97 percent of all the workers who work for Mr. Tan
have asked to have their contracts extended,'' Mr. O'Connor said.
``When they are here,'' he said of the Chinese laborers, ``they
learn about free enterprise, democracy--they become good-will
Ambassadors of our precepts of democracy.''
That is not borne out by the scores of affidavits gathered by the
Labor Department from the Chinese workers. The company ``makes use of
all kinds of illegal methods to steal our blood money,'' said Hu Li
Yue, a factory mender in one of Mr. Tan's factories.
the forgotten: workers stranded without a job
Some workers arriving here on contracts receive nothing, not even
jobs. Near the airport, a crumbling cinder block house without
electricity or running water is home to 47 laborers from the province
of Guangdong in southeastern China.
The workers arrived on Salpan in December 1991 on 2-year contracts
as construction workers, but the jobs they had been promised
disappeared. ``Now they're pretty much stranded,'' said their lawyer,
Brian McMahon.
The South Korean businessmen who brought them here, Kim Choon Suk,
says that because of a downturn in the local construction industry, he
had no work for the Chinese laborers and no money to send them home.
``I do not write home anymore because I do not want my wife and my
two children to know the truth of our terrible conditions,'' said Liu
Lin Yong, a 30-year-old construction worker.
He leaned against one of the long sheets of plywood that Mr. Rim
supplied to the workers to serve as beds. In one room, 22 of the men
sleep side by side on the platforms. The toilets are flushed with
rainwater, and the men bathe by swimming in the ocean.
``We have no money to pay for tickets to go home,'' Mr. Liu said,
opening his wallet to show that it was empty. All it contained were a
few photographs of his family. ``I would go home today if I had a
ticket. I would run to the airport.''
Lobbying Registration Form
______
Letters of Support
American Hotel & Lodging Association (AHLA),
July 13, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
American Hotel & Lodging Association (AHLA), I write in strong support
of President Trump's nominations of Patrick Pizzella to be Deputy Labor
Secretary; and Marvin Kaplan and William Emanuel to be Members of the
National Labor Relations Board (NLRB). All three nominees are extremely
qualified to serve in the roles to which they have been nominated and
their swift confirmation is necessary to ensure that the Department of
Labor (DOL) and the NLRB can fulfill their missions.
Founded in 1910, AHLA is the sole national association representing
all sectors and stakeholders in the U.S. lodging industry, including
owners, REITs, chains, franchisees, management companies, independent
properties, suppliers, and State associations. The lodging industry is
one of the Nation's largest employers. With nearly 8 million employees
in cities and towns across the country, the hotel industry provides $75
billion in wages and salaries to our associates and generates $600
billion in economic activity from the 5 million guestrooms at the more
than 52,000 lodging properties nationwide. It's particularly important
to note that this industry is comprised largely of small businesses,
with nearly 60 percent of all hotels falling under the Small Business
Administration's definition of what constitutes a small business in the
lodging sector.
Hotels are an integral part of the fabric of each community across
the United States. From coast to coast, the industry proudly invests in
the communities in which they call home by creating jobs, supporting
long-term career opportunities, generating significant tax revenue,
contributing to the local and State economies, and encouraging
community development. Hoteliers strive each day to make sure those
opportunities continue to grow.
Mr. Pizzella currently serves as Acting Chairman of the Federal
Labor Relations Authority (FLRA) and has served as a member of the FLRA
since November 2013 after being nominated by President Barack Obama. He
has also served as Assistant Secretary of Labor for Administration and
Management at the U.S. Department of Labor under President George W.
Bush.
Appointed to serve under both Democratic and Republican
administrations, Mr. Pizzella has nearly two decades of experience in
the Federal Government, nearly half of those focusing on labor policy
matters, to call upon when driving DOL's mission forward.
Mr. Kaplan, counsel to the commissioner of the Occupational Safety
and Health Review Commission, and Mr. Emanuel, a shareholder at the law
firm Littler Mendelson PC in Los Angeles, are experts in the field of
labor relations. Together they have decades of experience interpreting
the NLRA in a manner that is balanced and without favor to political
party. They have the expertise to ensure the Board remains true to its
mission of enforcing the National Labor Relations Act (NLRA) and, by
serving as a neutral arbiter of labor law, will create a climate for
economic growth by freeing employers from the unnecessary red-tape and
uncertainty associated with recent Board activities.
I urge the Committee on Health, Education, Labor, and Pensions to
approve the nominees promptly following this hearing, so the Senate may
confirm them and the DOL and NLRB can fulfill their missions.
Sincerely,
Brian Crawford,
Vice President,
Government & Political Affairs.
Coalition for a Democratic Workplace,
July 6, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Coalition for a Democratic Workplace (CDW), we urge the Senate to
quickly confirm Marvin Kaplan and William Emanuel to serve on the
National Labor Relations Board (NLRB). Kaplan and Emanuel both are
extremely qualified to serve as members of the Board and have the
expertise to ensure the Board remains true to its mission of enforcing
the National Labor Relations Act (NLRA) and serving as a neutral
arbiter of labor law.
CDW is a broad-based coalition of over 600 organizations
representing hundreds of thousands of employers and millions of
employees in various industries across the country concerned with the
disruption caused by the NLRB's 8-year campaign to re-write labor law.
CDW was originally formed in 2005 in opposition to the so-called
Employee Free Choice Act (EFCA), which would have replaced secret
ballots in unionization elections with ``card check,'' a process that
would have forced employees to choose whether or not to sign union
authorization cards in front of coworkers and union organizers,
exposing employees to potential intimidation and harassment by those in
favor of unionization. When EFCA was defeated, CDW turned its focus to
regulatory overreach by the NLRB, which has tried to enact the goals of
EFCA through its decisions and regulations.
Mr. Kaplan, counsel to the commissioner of the Occupational Safety
and Health Review Commission, and Mr. Emanuel, a shareholder at the law
firm Littler Mendelson PC in Los Angeles, are experts in the field of
labor relations. Together they have decades of experience interpreting
the NLRA in a manner that is balanced and without favor to political
party.
Over the last 8 years, the NLRB has overturned an astounding 4,559
years' worth of longstanding precedent, blurred numerous bright-line
tests, and dramatically overhauled the union election process--all in
an effort to tilt the scales in favor of organized labor.\1\ The Board
embarked upon this campaign with little regard as to the negative
impact these policy decisions would have on workers, employers and the
economy in general. Despite the employer community's efforts to
demonstrate these negative effects and caution the Board of these
consequences, the NLRB continued pursuing its radical agenda at the
expense of worker and employer rights and our economy.
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\1\ http://myprivateballot.com/wp-content/uploads/2016/12/CDW-NLRB-
Precedents-.pdf.
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We therefore applaud President Trump for his choices to serve as
the next members of the NLRB. Kaplan and Emanuel will interpret the
NLRA in a manner that is fair to workers, unions and employers alike,
restoring much-needed balance to the agency. They will help to return
the Board to its traditional role as a neutral arbiter of labor
disputes and will create a climate for economic growth by freeing
employers from the unnecessary red-tape and uncertainty associated with
recent Board activities.
We urge the Committee on Health, Education, Labor, and Pensions to
approve the nominees promptly following a hearing, so the Senate may
confirm them and the NLRB can return to fulfilling its statutory
mission.
Sincerely,
Coalition for a Democratic Workplace.
Independent Electrical Contractors (IEC),
Alexandria, VA 22302.
July 11, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Independent Electrical Contractors (IEC), I urge the Senate to quickly
confirm Marvin Kaplan and William Emanuel to serve on the National
Labor Relations Board (NLRB). Mr. Kaplan and Mr. Emanuel are both
extremely qualified to serve as members of the Board and have the
expertise to ensure the Board remains true to its mission of enforcing
the National Labor Relations Act (NLRA) and serving as a neutral
arbiter of labor law.
The Independent Electrical Contractors is an association of over 50
affiliates and training centers, representing over 2,100 electrical
contractors nationwide. While IEC membership includes many of the top
20 largest firms in the country, most of our members are considered
small businesses. Our purpose is to establish a competitive environment
for the merit shop--a philosophy that promotes free enterprise, open
competition and economic opportunity for all. In addition, IEC and its
training centers conduct apprenticeship training programs under
standards approved by the U.S. Department of Labor's (DOL) Office of
Apprenticeship. Collectively, IEC trains more than 10,000 electrical
apprentices annually.
Mr. Kaplan, counsel to the commissioner of the Occupational Safety
and Health Review Commission, and Mr. Emanuel, a shareholder at the law
firm Littler Mendelson PC in Los Angeles, are experts in the field of
labor relations. Together they have decades of experience interpreting
the NLRA in a manner that is balanced and without favor to political
party.
Over the last 8 years, the NLRB has overturned an astounding 4,559
years' worth of longstanding precedent, blurred numerous bright-line
tests, and dramatically overhauled the union election process--all in
an effort to tilt the scales in favor of organized labor. The Board
embarked upon this campaign with little regard as to the negative
impact these policy decisions would have on workers, employers and the
economy in general. Despite the employer community's efforts to
demonstrate these negative effects and caution the Board of these
consequences, the NLRB continued pursuing its radical agenda at the
expense of worker and employer rights and our economy.
IEC applauds President Trump for his choices to serve as the next
members of the NLRB. Mr. Kaplan and Mr. Emanuel will interpret the NLRA
in a manner that is fair to workers, unions and employers alike,
restoring much-needed balance to the agency. They will help to return
the Board to its traditional role as a neutral arbiter of labor
disputes and will create a climate for economic growth by freeing
employers from the unnecessary red-tape and uncertainty associated with
recent Board activities.
IEC urges the Committee on Health, Education, Labor, and Pensions
to approve the nominees promptly following a hearing, so the Senate may
confirm them and the NLRB can return to fulfilling its statutory
mission.
Sincerely,
Jason E. Todd,
Vice President,
Independent Electrical Contractors.
International Foodservice Distributors Association
(IFDA),
McLean, VA 22102,
July 10, 2017.
Hon. Lamar Alexander,
U.S. Senate,
455 Dirksen Senate Office Building,
Washington, DC 20510-4206.
Dear Senator Alexander: On behalf of the Nation's foodservice
distributors, I am writing to urge you to support the nominations of
Marvin Kaplan and William Emanuel to serve on the National Labor
Relations Board. Both of these nominees are well-qualified and the
Senate should act quickly in order to bring the Board to its full
membership.
The National Labor Relations Act is designed to create a level
playing field, favoring neither employers nor unions. Unfortunately the
last 8 years have seen a considerable move away from this policy as the
Board has actively worked to overturn more than 4,500 years of labor
law precedent to favor organized labor. As a result employers have
faced a variety of initiatives such as the ambush election rule which
limited the ability of employees to hear from their employer on the
issues around unionization and the joint employer rule which threatens
the franchise business model.
Mr. Kaplan and Mr. Emanuel have considerable experience with the
National Labor Relations Act both in public service and private
practice. Their confirmation will help return the Board to its
traditional position of fairness to ensure that the rights of workers,
employers and unions are protected. This is a critical feature of our
Nation's labor laws and restoring this balance will help to grow our
economy so that all parties can benefit from increased opportunity.
I hope you will support these nominations and work to ensure they
come before the Senate in a timely fashion.
Sincerely,
Mark S. Allen,
President and CEO.
International Franchise Association (IFA),
Washington, DC 20006,
July 13, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Senate Dirksen Office Building,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
International Franchise Association (IFA), the world's oldest and
largest organization representing franchising worldwide, I write to you
in support of the nomination of Marvin Kaplan, and William Emanuel for
the two vacant positions on the National Labor Relations Board (NLRB).
America's small businesses have created 74 percent of the jobs
since the recession, according to the U.S. Small Business
Administration. Local franchise business owners have led much of this
growth, outpacing employment in all businesses for the last 6 years.
However, small business owners everywhere have faced uncertainty in the
wake of decisions from the National Labor Relations Board. In recent
years, economic growth has been stifled by overregulation. Notably, in
August 2015, the Board dramatically expanded the basis for forcing an
employer to bargain alongside a subsidiary or contractor company in
ruling for a Teamsters local in Browning-Ferris Industries of
California, Inc. The new standard included situations in which
``indirect'' and/or ``potential'' control can originate from the top
curtailing job creation by franchise business owners and other small
businesses. The traditional joint employer test had existed with
bipartisan support for decades; yet the previous administration decided
to reverse decades of precedent and settled law to change that
standard.
By contrast, Marvin Kaplan and William Emanuel, seem highly capable
of interpreting the law being well-qualified on labor policy. Each
brings with them vast experience and qualifications in labor law
providing proof of their dedication to service.
On behalf of the Nation's 733,000 franchised small businesses, I
strongly urge you to push forward with the confirmation of the two
nominees so the new National Relations Labor Board can address the
regulatory issues facing the franchise business model.
Thank you for considering our views.
Best Regards,
Robert Cresanti, CFE,
President and CEO.
International Warehouse Logistics Association
(IWLA),
Des Plaines, IL 60018,
July 13, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
International Warehouse Logistics Association (IWLA), I write to urge
the Senate HELP Committee to move quickly to hold hearings and
subsequently advance the nominations of Marvin Kaplan and William
Emanuel to the National Labor Relations Board (NLRB). Kaplan and
Emanuel are well-equipped with the experience and qualifications
necessary to enforce the National Labor Relations Act (NLRA) and to
serve as neutral interpreters and enforcers of our Nation's labor laws.
Founded in 1891, IWLA is the trade association that represents the
interests of warehouse-based third-party logistics (3PL) providers
across North America. Headquartered in Des Plaines, IL, IWLA's 500+ 3PL
member companies and partners are independent warehouses that store,
distribute and add value to manufacturers' products as they move
through the supply chain.
IWLA member companies provide a range of services including
warehousing; fulfillment; reverse logistics; transportation; freight-
forwarding and brokerage services; inventory and supply chain
management; and a broad range of manufacturing and value-added
services. In total, IWLA's member companies manage up to 70 million
square feet of warehouse space and move more than three trillion pounds
of goods each year.
Over the last 8 years, the NLRB has reversed decades of standing
precedent regarding the union election process. This has been done with
little regard for the negative impact these policy decisions would have
on workers, employers, and the economy. The IWLA feels confident that
Kaplan and Emanuel will interpret the NLRA in a manner that is fair to
workers, unions and employers alike, restoring much-needed balance to
the agency.
To that end, we again urge the Senate HELP Committee to
expeditiously take up and approve these distinguished nominees so that
the Senate can follow suit and return the NLRB to a body that fairly
and objectively applies the law.
Sincerely,
Steve DeHaan,
President and CEO.
National Restaurant Association,
Washington, DC 20036
July 12, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: Thank you for
holding a timely hearing on the nominations of Marvin Kaplan and
William Emanuel to serve on the National Labor Relations Board (NLRB).
They are outstanding nominees with exceptional legal expertise in
complex labor and employment law matters. Each will help the President
meet his goal of eliminating job-crushing rules and regulations,
keeping government agencies accountable and restoring fairness and
balance to Federal labor law.
The National Restaurant Association is the leading business
organization representing the restaurant and food service industry. The
industry is comprised of more than one million restaurant and
foodservice outlets employing almost 14.5 million people. Despite being
an industry of predominately small businesses, the restaurant industry
is the Nation's second-largest private-sector employer, employing about
10 percent of the U.S. workforce.
Over the last 8 years, the previous administration's NLRB engaged
in unbridled overreach in their decisions. Rather than acting in a
transparent and impartial manner, the Board aggressively carried out a
one-sided agenda aimed at growing unionization to the detriment of
workers and their employers. We are encouraged by the President's
nomination of these well-qualified nominees and support their
confirmation.
We urge the committee to move quickly to approve these nominations
to allow for Senate confirmation before the August recess period.
Sincerely,
Shannon Meade,
Director of Labor and Workforce Policy.
National Retail Federation (NRF),
Washington, DC 20005,
June 28, 2017.
Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Dear Chairman Alexander and Ranking Member Murray: On behalf of the
Nation's retail industry, I write to share the National Retail
Federation's (NRF) strong support for the nominations of Marvin Kaplan
and William Emanuel to serve on the National Labor Relations Board
(NLRB). Both nominees are highly qualified and well-respected labor
attorneys who should be confirmed without delay.
NRF is the world's largest retail trade association, representing
discount and department stores, home goods and specialty stores, Main
Street merchants, grocers, wholesalers, chain restaurants and Internet
retailers from the United States and more than 45 countries. Retail is
the Nation's largest private sector employer, supporting one in four
U.S. jobs--42 million working Americans. Contributing $2.6 trillion to
annual GDP, retail is a daily barometer for the Nation's economy.
Over the past 8 years, the retail industry and employers across the
country have faced a crushing regulatory burden that has created
immense uncertainty in labor relations and made it much harder to grow.
Much of this uncertainty has stemmed from the NLRB's pursuit of an
activist agenda that consistently put the interests of labor unions
before the rights of employers and employees. The Board's unprecedented
changes to the long-held joint employer standard, sanctioning of
disruptive micro-unions, and radical changes to union election
procedures represent just a fraction of the detrimental NLRB policies
impacting retailers in recent years.
Both job creators and employees will benefit from a more balanced
approach in labor relations and a Board majority that puts the needs of
American businesses and workers before union politics. The President's
Board nominees have significant expertise and experience in labor
policy matters, and NRF is confident that both will serve as neutral
arbiters of the law. We urge Members of this committee and the Senate
to support the nominations of Marvin Kaplan and William Emanuel and
move toward confirmation without delay.
Sincerely,
David French,
Senior Vice President,
Government Relations.
Retail Industry Leaders Association (RILA),
Arlington, VA 22209,
July 13, 2017.
Senator Lamar Alexander, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Office Building,
Washington, DC 20510.
Senator Patty Murray, Ranking Member,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Office Building,
Washington, DC 20510.
Chairman Alexander and Ranking Member Murray: Thank you for holding
a hearing on the President's nominees for the National Labor Relations
Board (NLRB). The Retail Industry Leaders Association (RILA) fully
supports the nominations of Marvin Kaplan and Bill Emanuel as each of
them has demonstrated throughout their careers to have a deep knowledge
of the law and an ability to balance the interests of employees and
employers.
By way of background, RILA is the trade association of the world's
largest and most innovative retail companies. RILA members include more
than 200 retailers, product manufacturers, and service suppliers, which
together account for more than $1.5 trillion in annual sales, millions
of American jobs and more than 100,000 stores, manufacturing facilities
and distribution centers domestically and abroad.
As RILA members are leaders in the workforce arena, a full and
complete NLRB has been one of our top priorities as retailers continue
to grabble with the impacts of controversial Board decisions in
Specialty Healthcare, Browning-Ferris, as well as several important
handbook policy cases. Taken together, these decisions have not only
threatened the flexibility and upward mobility that retail employees
value but also the effective operation of retail establishments across
the country.
It is critical that the Board is made whole so it can begin the
important work to interpret the law in a way that supports innovation,
growth, and opportunity rather than tying the hands of the largest
private job creators in the country. We strongly encourage the Senate
to move swiftly and look forward to a smooth and seamless confirmation
process.
Sincerely,
Evan Armstrong
Vice President,
Government Affairs.
______
Response by Patrick Pizella to Question of Senator Murkowski, Senator
Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator
Warren and Senator Kaine
senator murkowski
Question. During the period in which you worked with Jack Abramoff
at Preston Gates, the working conditions for immigrant labor in the
Northern Marianas were horrible in the extreme. At that time, you
worked on behalf of Preston Gates' client, the Commonwealth of the
Northern Marianas Islands, to block legislation sponsored by then-
Senator Frank Murkowski that was intended to improve those working
conditions. During a recent hearing of the Senate Energy and Natural
Resources Committee, the committee took testimony that some of these
foreign labor issues exist now. If you are confirmed as Deputy
Secretary for the Department of Labor, what will you do to ensure that
Federal laws are being followed and that companies in the Commonwealth
of the Northern Marianas Islands are following all Federal labor laws
and regulations? Will you work with other Federal agencies to ensure
that companies hiring workers in the Commonwealth of the Northern
Marianas Islands are doing so legally?
Answer. If I am confirmed as Deputy Secretary of Labor it will be
my statutory responsibility to ensure that Federal laws are being
followed and that companies in the Commonwealth of the Northern Mariana
Islands (CNMI) are following all Federal labor laws. I will also work
with other Federal agencies as appropriate. Coordination with other
Federal agencies--particularly the Department of Interior--is very
important given the distance of CNMI from the U.S. mainland.
senator murray
Question 1. President Trump has proposed a 20 percent budget cut
for the Department of Labor (DOL), including a 40 percent cut to our
Nation's system of education, skills training, and employment services
designed to support current and future workers, particularly low-income
workers, dislocated workers, and at-risk and out-of-school youth. If
you are confirmed as Deputy Secretary, you will be responsible for
overseeing DOL operations, including budgetary issues. Please address
the following questions related to the development of the President's
budget:
With regard to the Education and Training Administration, do you
commit to maintaining current funding levels for job training, worker
dislocation and employment service programs?
Will you commit to preserving the International Labor Affairs
Bureau?
Will you commit to keeping OFCCP at the Department of Labor?
Will you commit to preserving the Women's Bureau at the Department
of Labor?
Will you commit to providing no less than level funding for the
Office of Disability Employment Programs?
Will you commit to maintain current levels of inspection and
enforcement by the Wage and Hour Division and the Occupational Safety
and Health Administration?
Answer 1. As a nominee, I did not participate in the development of
the President's budget proposal. The President's budget is pending
before Congress and ultimately Congress will determine which programs
are funded, at what level, and which authorizing proposals to adopt. If
I am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated. I believe there are always efficiencies that can
improve programs and will commit to make the most of the dollars
Congress appropriates to the Department. The agencies you mention are
important to the mission of the Department of Labor and, if confirmed,
I look forward to working with Congress regarding departmental
priorities.
Question 2. If confirmed, what process will you use in implementing
the President's budget cuts? If furloughs are necessary, what process
will you employ?
Answer 2. As a nominee, I did not participate in the development of
the President's budget proposal. The President's budget is pending
before Congress and ultimately Congress will determine which programs
are funded, at what level, and which authorizing proposals to adopt. If
I am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated. Furloughs should always be a last-resort. I
believe there are always efficiencies that can improve programs and
will commit to make the most of the dollars Congress appropriates to
the Department.
Question 3. As we discussed, the President has touted the
importance of job training, and in particular apprenticeships. If you
are confirmed, how will you seek to implement the President's agenda
with the proposed $2 billion-plus reduction from the Education and
Training Administration budget that funds these same programs around
the country?
Answer 3. As a nominee, I did not participate in the development of
the President's budget proposal. The President's budget is pending
before Congress and ultimately Congress will determine which job
training programs are funded and at what level. If I am confirmed, I
will work to maximize every dollar the Department of Labor is
appropriated. I believe there are always efficiencies that can improve
programs and will commit to make the most of the dollars Congress
appropriates to the Department.
Question 4. The President's Executive order issued on June 15, 2017
appears to direct the Department of Labor to create a new
apprenticeship program that would exist outside of the Registered
Apprenticeship program at the Department of Labor. Registered
apprenticeships are known for having certain requirements in place for
workers, including on-the-job training and rewards for skills gained.
Registered apprenticeships also culminate in a portable credential. The
President's Executive order permits qualified third-parties to
recognize apprenticeship programs. If confirmed, how will you work with
your colleagues to ensure that any apprenticeship programs that are
recognized by these third-parties and that receive Federal funding meet
the same quality standards as registered apprenticeship programs?
Answer 4. As with many Executive orders, the Department of Labor
will likely need to write regulations or guidance to implement the
Executive order. Secretary Acosta has been clear that he believes, and
I agree, that these apprenticeship programs should be high-quality. As
I understand the Executive order, the premise is to create industry
standards for training--so that an employer in Louisiana knows a worker
who was in an apprenticeship in Connecticut was provided the same
quality training he or she is accustomed to in an employee. If there is
not continuity and a high-standard, it will be difficult to achieve
portability. As a nominee, I am not involved with the drafting of any
regulations or guidance. If I am confirmed, I look forward to assisting
in the implementation of the Executive order.
Question 5. Secretary Acosta and the Administration have talked
extensively about job training. If confirmed as Deputy Secretary, how
would you actually meet these goals while simultaneously reducing job
training funding?
Answer 5. The President's budget is pending before Congress and
ultimately Congress will determine which job training programs are
funded and at what level. If I am confirmed, I will work to maximize
every dollar the Department of Labor is appropriated. I believe there
are always efficiencies that can improve programs and will commit to
make the most of the dollars Congress appropriates to the Department.
Question 6. The Trump administration's budget proposes a drastic
$255 million cut to the Wagner-Peyser Employment Service program. This
is a service that matches dislocated workers to jobs that match their
skills and background. Do you support the Administration's cuts to this
program?
Answer 6. Matching workers with the jobs that require their skill
set and background is incredibly important and is the focus of the
President's Executive order on apprenticeships. As a nominee, I did not
participate in the development of the President's budget proposal. The
President's budget is pending before Congress and ultimately Congress
will determine which job training programs are funded and at what
level. If I am confirmed, I will work to maximize every dollar the
Department of Labor is appropriated. I believe there are always
efficiencies that can improve programs and will commit to make the most
of the dollars Congress appropriates to the Department.
Question 7. You stated in your confirmation hearing that the
President's budget increased the budgets of DOL's enforcement agencies.
In reality, the President's budget decreased the budget of the
Occupational Safety and Health Administration (OSHA)--the agency
responsible for enforcing workers' rights to safe and healthful
workplaces--by $8.479 million. In your view, is OSHA an enforcement
agency? If the answer is yes, then please explain why you stated that
the President's budget increased enforcement resources.
Answer 7. The President's budget leaves enforcement agencies
largely untouched. Enforcement agencies are at the core of the
Department of Labor's mission. The Occupational Safety and Health
Administration (OSHA) is one of the Department's enforcement agencies.
Generally, the President's fiscal year 2018 budget proposal provides
increases to enforcement agencies. My understanding is that a majority
of the decrease in OSHA was not for enforcement activities, but to
eliminate training grants and shift some of those resources to other
OSHA programs.
Question 8. Do you believe that existing regulations should only be
changed where there is empirical evidence suggesting that they are
flawed, or do you believe that rules should be revised, even if such
revisions are not supported by concrete evidence?
Answer 8. As Secretary Acosta has stated, the law sets specific
limits and establishes procedures to follow when regulating and
deregulating, including the Administrative Procedure Act. Any changes
to existing regulations generally must meet the requirements set forth
in the Administrative Procedure Act including public notice and comment
on any changes.
Question 9. The overtime and fiduciary rules were promulgated after
lengthy rulemaking processes that included extensive stakeholder
outreach. In your view, what new information must be produced in order
to support changes to these rules?
Answer 9. As Secretary Acosta has stated, the law sets specific
limits and establishes procedures to follow when regulating and
deregulating, including the Administrative Procedure Act. The overtime
and fiduciary rules are at the Request for Information stage, where the
Department of Labor will request the public provide comments on
questions and then determine what to do, if anything, based on that
information. As a nominee, I am not privy to the specific information
that would, or would not, influence a decision to make changes.
Question 10. During the process of formulating rules and other
policies, will you commit to advocating for and ensuring that senior
Department leadership meet with all affected stakeholders, including
groups that represent workers?
Answer 10. I support outreach and involvement of the regulated
community in rulemaking. Under the Administrative Procedure Act, all
stakeholders may comment and their views must be considered by the
Department when the Department issues regulations. I believe it is
important to hear from stakeholders in the rulemaking process to ensure
the most robust record is made and the best information is considered
from which to make regulatory decisions.
Question 11. What is your view on when opinion letters are
appropriate?
Answer 11. Opinion letters are an appropriate and useful tool to
help employees and employers understand and comply with the law. These
letters were a practice of the Wage and Hour Division (WHD) for more
than 70 years. WHD exercises its discretion when determining which
questions or issues should be addressed through an opinion letter. As
Secretary Acosta said, and I agree, employers should focus on growing
their businesses and creating jobs and the Department of Labor is
committed to helping employers understand and comply with the law so
they can do just that.
Question 12. How will you weigh advice from Department lawyers when
they advise that a particular action is legally indefensible, or is
effectively indefensible given the risk of an adverse decision in
litigation?
Answer 12. If confirmed, I will listen to, and fully consider, all
advice provided by attorneys at the Department of Labor.
Question 13. The President has signed two Congressional Review Act
resolutions of disapproval for two DOL retirement rules thought sought
to help works save for retirement. With 10,000 workers from the ``baby
boom'' generation retiring every single day and most of them woefully
unprepared for retirement, do you support the elimination of the Senior
Community Service Employment Program? Please explain why or why not. If
you do support its elimination, please explain how the DOL should help
seniors who need to work during their retirement years.
Answer 13. A very important part of the Department of Labor's
mission is to ``foster, promote, and develop the welfare . . . of
retirees in the United States'' and I support that mission
wholeheartedly. With regard to the Senior Community Service Employment
Program, I would need to learn more about the program and examine its
recent metrics before opining on it. However, as a nominee, I did not
participate in the development of the President's budget proposal. The
President's budget is pending before Congress and ultimately Congress
will determine which programs are funded, at what level, and which
authorizing proposals to adopt. If I am confirmed, I will work to
maximize every dollar the Department of Labor is appropriated. I
believe there are always efficiencies that can improve programs and
will commit to make the most of the dollars Congress appropriates to
the Department.
Question 14. Historically, compared to other agencies, DOL has
spent one of the smallest percentages of its budget on information
technology (IT). Given the Administration's proposal to cut the
Department's budget, how will you ensure that necessary IT
improvements, including enhancing cybersecurity protections, are
adequately funded?
Answer 14. If I am confirmed, the Department will need to take a
hard look at its funding and prioritize necessary IT improvements,
especially cybersecurity protections.
Question 15. The Frances Perkins Building is in need of costly
upgrades. The Obama administration attempted to secure a new building
through an exchange process, but the process was canceled by the Trump
administration. Given the budget cuts proposed for the Department, if
confirmed, what is your plan for upgrading the building?
Answer 15. If confirmed, and if Congress determines budget
reductions are necessary, the Department will need to take a hard look
at its funding and prioritize necessary building upgrades. If
confirmed, I expect to be briefed on what upgrades may be necessary to
the Frances Perkins Building.
Question 16. DOL has a long history of using data, evidence, and
performance metrics to guide decisionmaking. How will you use data,
evidence, and performance metrics to guide policymaking and budget
decisions?
Answer 16. I will use data, evidence, performance metrics, and
other measures to guide my decisionmaking.
Question 17. There is strong evidence that tougher enforcement--and
publication of enforcement results--leads to safer working conditions.
How do you reconcile this evidence with the Administration's stated
desire to move away from enforcement to greater compliance assistance?
Answer 17. Compliance assistance helps employers understand how to
comply with the law, particularly small businesses who may not have
robust legal departments. I believe compliance assistance and
enforcement go hand-in-hand.
Question 18. The Department has currently halted almost all
communication with the public about enforcement activities. Do you
believe that it is an efficient and effective use of resources to
communicate about such enforcement activities to increase voluntary
compliance?
Answer 18. I am not aware of the Department halting communication
with the public about enforcement activities. Generally, I believe
there is deterrent value to communicating with the public about
enforcement actions.
Question 19. Please describe your views on when transparency is a
useful deterrent to violations and when it is ``shaming.'' Please be
specific with your views on the posting of press releases and the OSHA
Severe Violators program.
Answer 19. Generally, I believe there is deterrent value to
communicating with the public about enforcement actions. Congress has
determined that workers should be protected from hazards in the
workplace and I believe it makes sense to focus resources on employers
who ignore those responsibilities. If confirmed, I look forward to
working with Occupational Safety and Health Administration staff and
learning more about the Severe Violator Enforcement Program.
Question 20. Please State the steps that you will take to ensure
that the work of the Department's Chief Evaluation Office is free of
political interference.
Answer 20. As I stated at my confirmation hearing, the
administration of law should have nothing to do with partisan politics.
I agree with Secretary Acosta's position that respect for the
individual and respect for the law will guide the Department. The
policy of the Chief Evaluation Office states, ``independence and
objectivity are core principles of evaluation.'' If confirmed, I have
no plans to change that.
Question 21. In recent years, the Department of Labor has made
significant improvements in employee engagement. If confirmed, how will
you ensure that these improvements continue?
Answer 21. If I am confirmed, after a careful review of the
Department of Labor performance management system and meeting with
agency administrative officers and human resources professionals, I
will be in a position to properly assess employee engagement.
Question 22. Will you commit to protecting the rights of DOL
employees to express their disagreement with Administration policies?
If so, how?
Answer 22. There are many legal protections for civil servants.
Political views should not be considered in the hiring of career civil
servants and the government has a selection process that must be
followed. If confirmed, I will follow the law and commit to protecting
the rights of all civil servants at the Department of Labor.
Inappropriate or unlawful conduct will be subject to appropriate
disciplinary action, if I am confirmed.
Question 23. During your staff interview with the committee's
minority staff, you mentioned how you were an integral part of the
Department meeting all elements of then-OMB Director Mitch Daniels'
Management Plan. As Deputy Secretary, what kind of management systems
will you put in place to ensure that the Department continues to meet
its statutory mandates? Do you commit to sharing established or new
operating/management metrics with the committee?
Answer 23. If I am confirmed, and after a careful review of the
Department of Labor (DOL) performance management system and budget
formulation process, I will be in a position to determine what kind of
management systems, if any, need to be in place to ensure DOL continues
to meet its statutory mandates. Any new operating or management metrics
will be part of DOL's annual report to Congress and the public.
Question 24. Do you think that the Department's resources are
correctly allocated between training and enforcement, and, if not, why
not?
Answer 24. If confirmed, I expect to be briefed about the operation
and possible needs of all of the Department's agency components--
including the enforcement agencies and Employment and Training
Administration. These agency components have different missions and
goals and if confirmed, I look forward to working with the agencies to
improve efficiency and meet the agency needs.
Question 25. Do you think that the Department's resources are
correctly allocated between compliance assistance and enforcement, and,
if not, why not?
Answer 25. If confirmed, I look forward to learning more from each
enforcement agency about its compliance and enforcement efforts.
Compliance assistance helps employers understand how to comply with the
law, particularly small businesses who may not have robust legal
departments. I believe compliance assistance and enforcement go hand-
in-hand.
Question 26. If you find that the Department's funding is not
sufficient to meet operating goals and mandates, if confirmed, do you
commit to sharing that information with the committee?
Answer 26. The Department's budget justification describes the
needs and effects of changes being proposed to programs. If I am
confirmed, I will work to maximize every dollar the Department of Labor
is appropriated. I believe there are always efficiencies that can
improve programs and will commit to make the most of the dollars
Congress appropriates to the Department.
Question 27. Will you commit, if confirmed, to responding in a
timely and complete manner to requests from all Members of Congress?
Answer 27. If confirmed, I will provide responses to all Members of
Congress.
Question 28. Curtis Ellis, a current DOL political appointee, has
written that former President Barack Obama and Secretary Hillary
Clinton planned the ``liquidation of white, blue-collar working
families.'' Do you agree with that statement? Do you believe it is
appropriate that Mr. Ellis hold a high-level government position?
Answer 28. As I am not confirmed, I am not involved in personnel
decisions and am not privy to information regarding particular
individuals.
Question 29. In most cases before the Federal Labor Relations
Authority (FLRA), it is typical practice for the union to be listed as
the filing party instead of the individual employee. However, as a
Member and as Chairman of the FLRA, in the dissents and concurrences
you authored, you routinely named the grievant in cases when the
individual is not the filing party. Why did you employ this practice
when it is not the FLRA's normal practice?
Answer 29. As the only non-lawyer Member of the Federal Labor
Relations Authority (FLRA), I sometimes approach issues a little
differently than my current colleagues and previous Members. I believe
that transparency is important.
Question 30. Generally an arbitrator's findings of facts are
entitled to deference unless there is an error in the arbitrator's
legal analysis. It seems, however, that during your tenure as a Member
and Chairman of the FLRA, you did not always give arbitrators that
deference. Can you explain this deviation from typical practice as a
Member of the FLRA?
Answer 30. As the only non-lawyer Member of the Federal Labor
Relations Authority (FLRA), I sometimes approach issues a little
differently than my current colleagues and previous Members. The FLRA
has a statutory charge to review such decisions and I performed my
responsibility as a Member of the FLRA.
Question 31. In your exchange with Senator Isakson during your
confirmation hearing, you mentioned the Institute for Justice's
``crusade'' against licensing. Do you agree with the Institute's stance
on licensing?
Answer 31. In my response to Senator Isakson, I was referring to
the Institute for Justice's ``Braiding Initiative'' where the Institute
for Justice filed suits challenging State hair braiding regulations. I
am concerned that State occupational licensing laws may create
artificial barriers to employment and I believe tackling these
artificial barriers requires a broad-based approach at the Federal,
State, and local government levels.
Question 32. Democrats and Republicans have tended to agree that
licensing is a State issue. I worked with Chairman Lamar Alexander to
provide funding to DOL to support State and regional efforts in this
area. Do you believe that the Department of Labor, and therefore the
Federal Government, should take over control of licensing issues in
this country? If so, what role do you think the Department of Labor and
the Federal Government should play in deciding for States how licensing
requirements should be designed and implemented? What criteria would
you suggest using to evaluate licenses?
Answer 32. I share your concerns that the patchwork of State
occupational licenses may create artificial barriers to employment. As
I stated at my confirmation hearing, I believe the Federal Government
has a role to bring together States to enter into reciprocal
relationships to allow for the portability of occupational licenses
across State lines, but that States also play a large role in working
together. If confirmed, I look forward to learning more about the
Department's efforts regarding occupational licensing, including the
grant program established by Congress.
Question 33. In response to one of Senator Rand Paul's questions
during your nomination hearing, you stated that there should not be
partisanship at the agency. Despite your record of Federal service, you
have also worked for incredibly partisan organizations, such as the
Council for National Policy, which has been called ``a little-known
club of a few hundred of the most powerful conservatives in the
country,'' and the Conservative Action Project, which describes itself
as
``a united conservative movement to assure, by 2020, policy
leadership and governance that restores religious and economic
freedom, a strong national defense, and Judeo-Christian values
under the Constitution.''
Given your history with these partisan organizations, how will you
leave partisanship behind while you are at DOL?
Answer 33. I have never engaged in partisanship in my nearly 25
years in Federal service in the executive branch and, if confirmed,
will not engage in partisanship as Deputy Secretary of Labor.
Question 34. In your interview with committee minority staff, you
stated that you stopped working for the Council for National Policy on
December 31, 2012, because you knew that you were going to be nominated
for the Federal Labor Relations Authority. The Council for National
Policy filed a 2013 Form 990 showing that you were paid $116,667 for
the calendar year beginning January 1, 2013 and ending December 31,
2013. Can you please explain this discrepancy?
Answer 34. The Council for National Policy owed me that amount of
money for services performed in 2012. My contract with them and all
work for them ended on December 31, 2012.
Question 35. You were an original signer of the 2010 Mount Vernon
statement, which has been described as an effort to bring together
disparate conservative groups. How will the principles of the Mount
Vernon statement inform your service as the Deputy Secretary of Labor
if you are confirmed?
Answer 35. If confirmed as Deputy Secretary, I will follow the law
and the oath I take as a Federal employee.
Question 36. President Trump has made comments about corruption in
the Federal workforce, at times referring to many Federal workers as
disloyal and ``leakers.'' Do you agree with his assessment of Federal
employees?
Answer 36. I believe Federal employees serve an important role and
are vital to the operation of the government.
Question 37. You have expressed some troubling views in your
opinions at the Federal Labor Relations Authority (FLRA). For example,
in the case, 69 FLRA No. 75, you refer to the grievant by name and
repeatedly refer to the individual in a demeaning manner. In the past,
you have called employees ``boorish and unprofessional,'' and called
their grievances ``frivolous.'' The mission of the Department of Labor
is to promote and protect the rights and well-being of workers. Given
your past statements, what assurances can you provide the committee
that you will support and protect the Department's employees?
Answer 37. My record of over almost 25 years of experience in the
executive branch is one of following the laws and regulations governing
the Federal workforce. If I am confirmed as Deputy Secretary I will
continue that approach.
Question 38. In some of your opinions at the FLRA--69 FLRA 75; 70
FLRA 63; 68 FLRA 846--you deride the use of official time, i.e., work
Federal employees perform on agency-related work such as ensuring
workplace safety, developing training materials for new employees, and
resolving grievances. Do you support Federal employees' statutory
protection of official time under the Federal Service Labor-Management
Relations Statute? If yes, will you commit to protecting and in no way
restricting or combating Department of Labor employees' statutory and
contractual rights to utilize official time?
Answer 38. If confirmed, I will abide by all statutory protections
under the Federal Service Labor-Management Relations Statute and any
collective bargaining agreement in place between Department of Labor
employees and its union.
Question 39. The labor conditions in the Northern Marianas are
notoriously bad and have been since you were a registered lobbyist at
Preston Gates lobbying on behalf of the Commonwealth of the Northern
Mariana Islands (CNMI) to oppose extending Federal labor laws there.
Recent reports have found outrageous violations at one of the largest
employers on the island, Imperial Pacific Casino, which has faced at
least five serious workplace safety issues, including an amputation and
even a death. Do you still defend your position that Federal labor laws
should not be extended to the CNMI? How can you be trusted to help
oversee the Wage and Hour and OSHA divisions at the DOL, which are so
important to workers across the country and in U.S. territories, given
your prior work?
Answer 39. The Commonwealth of the Northern Mariana Islands (CNMI)
is covered by Federal labor laws and if confirmed as Deputy Secretary
of Labor, I will fully and fairly enforce those laws.
Question 40. In your confirmation hearing, you responded to a
question asked by Senator Al Franken about the working conditions in
the Northern Marianas by stating that you were unaware of the terrible
working conditions there. It is estimated that you organized trips for
more than 100 individuals, including Members of Congress. How many
times did you visit the Northern Marianas? How many trips did you run
there in your lobbyist position at Preston Gates?
Answer 40. The Commonwealth of the Northern Mariana Islands (CNMI)
was a client of Preston Gates, the firm at which I was employed. Over a
5-year period from 1996 to 2000, I visited the CNMI--at the invitation
of the CNMI--about 20 times. Those trips involved Members of Congress,
congressional staff, and public policy advocates, all of whom were
invited to visit CNMI by the CNMI government.
Question 41. Disgraced lobbyist Jack Abramoff called you ``a very
ethical person'' and has endorsed you to be the Deputy Secretary.
Despite the fact that Abramoff and 21 of his associates either pled
guilty or were found guilty of various corruption charges, you were
never charged with any crimes related to your work with Abramoff. The
Senate Finance Committee investigated Mr. Abramoff 's practice of money
laundering through tax-exempt organizations and issued a report that
states,
``Patrick Pizzella, a colleague of Mr. Abramoff 's at Preston
Gates, wrote to Mr. Abramoff on July 1, 1996, to explain how
they planned to funnel money to NCPPR to pay expenses related
to a trip to the CNMI.''
Specifically, you wrote to Mr. Abramoff:
Jack, the airplane tickets were paid by PG [Preston Gates];
the hotel bills were paid by CNMI (each traveler just signed
bill--no credit requested); that leaves basically the fees for
Bandow's services and report; and the reimbursement for the
bills he accumulated (mostly hotel and food) in Guam and Samoa.
That should come to about $10,000. That is the amount CNMI
should provide as a grant to NCPPR. Then they can cut check to
Bandow. I do not see need for us to send airplane bills to
NCPPR and then CNMI sending money ($30,000) to cover those--do
you? Let me check further with Doug to nail down amount of
bills he accumulated. I would like to finish up the $$ aspect
of this as soon as possible--it will impress Doug and Amy--both
of who we will want to call on again in the future. Thanks.
Please explain the context for this e-mail and the arrangement
between Preston Gates, CNMI, and Mr. Bandow. Were ``Bandow's services
and report'' related to the articles for which Mr. Abramoff paid and
resulted in the scandal forcing Mr. Bandow to resign from the Cato
Institute?
Answer 41. I last worked with Jack Abramoff 17 years ago. To the
best of my recollection the ``Bandow's services and report'' had to do
with Mr. Bandow's visit to Guam and American Samoa (a place I have
never visited) and an economic report/analysis he prepared about those
two islands. I am not certain if they are related to the articles you
reference because that event happened 18 or 19 years ago.
Question 42. Mr. Abramoff compared the Federal regulation of the
Northern Marianas to the Nazis' Nuremberg laws, stating that ``The[y]
are immoral laws to destroy the economic lives of a people.'' Do you
agree with Mr. Abramoff 's statement?
Answer 42. No, I do not agree with Mr. Abramoff 's statement.
Question 43. During your time with the Trump transition team, did
you participate in vetting President Trump's first nominee for
Secretary of Labor, Andrew Puzder? If so, please explain your role in
the vetting process. Did you raise any concerns about Mr. Puzder's
potential nomination during vetting?
Answer 43. I did not participate in the vetting of Mr. Puzder.
senator casey
Question 1. Workers in Pennsylvania as well as my office have been
waiting on responses from the Department of Labor on a Trade Adjustment
Assistance appeal for Fuzion Technologies in Freeport, PA. Our workers
can't get an answer out of DOL, and neither can my staff. When can we
expect a response from you all to get a determination for our workers
in Pennsylvania? Why has it taken so long and why has DOL not been
responsive to requests from my staff? What will be done to improve the
responsive of DOL to Congress? Is the Office of congressional and
Intergovernmental Affairs fully staffed?
Answer 1. As I am not confirmed, I am not privy to your request of
the Department or the specifics of the staffing of the Office of
Congressional and Intergovernmental Affairs. I believe it is important
to respond to requests of Members of Congress and, if confirmed, I will
look into your concerns regarding the Office of Congressional and
Intergovernmental Affairs.
Question 2. President Trump has made deregulation a priority. He
also proposed massive cuts to the Department of Labor's budget. Will
you pledge to continue tough enforcement of these laws and regulations
to protect coal miners and commit to not gutting or undoing these
regulations?
Answer 2. I'm unsure as to the particular laws and regulations to
which you refer. I do believe mine safety is of the utmost importance
and, if confirmed, will work to enforce the laws under the Department's
jurisdiction fully and fairly.
Question 3. How do you propose to have robust enforcement given
these proposed budget cuts? Please provide a yes or no response.
Answer 3. I am unable to provide a yes or no response to this
question; however, if confirmed, using taxpayer resources and
appropriated funds wisely will be one of my responsibilities and one I
will take very seriously. Enforcement is a core responsibility of the
Department of Labor and I will prioritize enforcement regardless of
funding levels. As a nominee, I did not participate in the development
of the President's budget proposal. The President's budget is pending
before Congress and ultimately Congress will determine which programs
are funded, at what level, and which authorizing proposals to adopt. If
I am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated.
Question 4. What specifically will you do at the Department of
Labor to help workers who have lost their jobs to technology or trade?
Answer 4. Helping Americans who have lost their jobs due to
technology or trade is very important. If confirmed, I look forward to
being briefed on all of the available programs and learning more about
what is working well and areas that may need improvement. I also
believe it is important to work with the private sector, States and
localities to further understand the successes and challenges of these
programs and to ensure that the displaced workers are being trained or
retrained in industries where there are available jobs and demand for
workers.
Question 5. How specifically will you ensure thorough investigation
and enforcement of violations of the Fair Labor Standards Act?
Answer 5. Investigation and enforcement of violations of the Fair
Labor Standards Act should involve strategic enforcement and individual
complaints. As Secretary Acosta has said as well, if confirmed, I will
work to enforce the laws under the Department's jurisdiction fully and
fairly.
Question 6. How can the Department of Labor help economically
disadvantaged areas attract new business investment and new jobs?
Answer 6. As I stated at my confirmation hearing, I subscribe to
President Kennedy's theory that a rising tide lifts all boats. Actions
by the executive branch and Congress to create more economic growth and
an environment for entrepreneurs and businesses to thrive will help
everybody. Regulatory reform and tax reform are both key to helping
increase economic growth. The President's Executive order regarding
apprenticeships will help make sure that those who are unemployed, or
underemployed, have another pathway and opportunity to gain new skills
for which there are job opportunities, and these portable skills will
be useful wherever they live.
Question 7. Do you think that cutting Federal funding for job
training will make workers better or worse prepared to find jobs to
support their families?
Answer 7. The President's Executive order regarding apprenticeships
will help make sure that those who are unemployed, or underemployed,
have another pathway and opportunity to gain new skills for which there
are job opportunities. Obtaining these portable skills will help
workers find jobs and be able to support their families.
Question 8. Do you think that cutting Federal funding for job
training will make it harder for employers to find workers with the
skills they need?
Answer 8. The President's Executive order regarding apprenticeships
will help those who are unemployed, or underemployed, gain portable
skills for which there are job opportunities. It will lead to greater
numbers of workers who possess the requisite skills for the jobs that
are in demand, helping employers find workers with the skills they
need.
Question 9. How do you propose to close the skills gap and help
workers compete at home and abroad?
Answer 9. Reducing the skills gap is a priority for this
Administration and a goal we can all agree upon. The President's
Executive order regarding apprenticeships will ensure workers are
trained for the jobs that are in demand. These portable skills will
follow the worker wherever he or she moves, and will lead to greater
numbers of workers who possess the requisite skills for the jobs that
are in demand, helping employers find workers with the skills they
need.
senator franken
Question 1. Currently on the Department of Labor Web site, under
the Wage and Hour section, it describes how the department has entered
in partnerships with 37 States and is:
``working with the IRS and many States to combat employee
misclassification and to ensure that workers get the wages,
benefits, and protections to which they are entitled.''
What is your view on better coordination across enforcement
agencies to improve their ability to identify companies who violate
multiple Federal laws administered by the DOL?
Answer 1. If confirmed, I look forward to being briefed on the
extent to which agencies already coordinate and the specific procedures
the agencies follow. I certainly support using government resources in
the most efficient manner possible but it would be premature for me to
suggest changes before examining all of the relevant information.
Question 2. Should you be confirmed how do you plan to help the
Department of Labor deal with Federal contractors who have a history of
violations under the multiple laws administered by the Department?
Answer 2. Government agencies, including the Department of Labor,
have certain suspension and debarment authorities granted to them in
statute and through the Federal Acquisition Regulations. However, it's
not one-size-fits-all--for example, a repeat or willful violator is not
the same as a contractor who perhaps has an allegation that has not yet
been adjudicated.
Question 3. Given your responsibility as Deputy Secretary, how do
you intend to make sure that business owners that follow the law aren't
at a competitive disadvantage to contractors with a history of
violating our Federal workplace statutes now that the Obama
administration's Executive order requiring the disclosure and
consideration of illegal activity when awarding Federal contract has
been reversed.
Answer 3 Government agencies, including the Department of Labor,
have certain suspension and debarment authorities granted to them in
statute and through the Federal Acquisition Regulations. However, it's
not one-size-fits-all--for example, a repeat or willful violator is not
the same as a contractor who perhaps has a minor infraction or an
allegation that has not yet been adjudicated.
Question 4. Should the government, especially when spending
taxpayer dollars, set an example by rewarding and working with
businesses that obey the law and respect the rights of their workers?
Please explain.
Answer 4. The Federal Government should strive to be a model
employer and comply with the law when hiring a contractor.
Question 5. Do you believe that a contracting officer should
consider a company's record of labor law violations (and remedial
actions) when determining whether the bidder is a responsible party and
whether a bid is the best value bid?
Answer 5. There are a number of requirements that contracting
officers have to meet in awarding contracts, including evaluations of
the contractor's compliance with the law historically. However, it's
not one-size-fits-all--for example, a repeat or willful violator is not
the same as a contractor who perhaps has an allegation that has not yet
been adjudicated.
Question 6. Would consideration of a company's history of labor law
compliance (and any remedial actions) contribute to economy and
efficiency in contracting?
Answer 6. There are a number of requirements that contracting
officers have to meet in awarding contracts, including evaluations of
the contractor's compliance with the law historically. The contracting
officer looks at those issues and others as part of a determination of
the economy and efficiency of the contract.
Question 7. When asked about whether you had knowledge of abuses of
workers in the Northern Mariana Islands when you were a lobbyist on
behalf of the islands' government, you said ``I was not aware of any
such thing,'' and later described the abuses as ``allegations,''
despite clear evidence of abuses offered at the time in press reports,
government reports, and congressional hearings. Were you unaware of the
reports or did you simply find them not to be credible?
Answer 7. I replied to the question asking if I had knowledge of
abuses of workers--and I had no knowledge of abuses of workers. I was
aware of news reports and comments by some Members of Congress.
Question 8. At the time, were you aware that the Senate Committee
on Energy and Natural Resources held a hearing in March 1998 on abuses
of workers in the Northern Mariana Islands?
Answer 8. I do recall that a hearing was held, but 18 years later I
do not recall the details.
Question 9. According to Jack Abramoff 's 2011 book, Capitol
Punishment: The Hard Truth About Washington Corruption From America's
Most Notorious Lobbyist, for a period in 1998, the government of the
Commonwealth of the Northern Mariana Islands (CNMI) ended its contract
with Preston Gates. In order to support your representation, Willie
Tan, one of the largest sweatshop owners in the islands, organized
private sector funding for your contract. Were you aware that only a
few years before, Willie Tan had been assessed the then-largest fine in
Department of Labor history for abuses of workers?
Answer 9. These events occurred nearly 20 years ago so I do not
know precisely when I became aware that Mr. Tan had been assessed a
fine by the Department of Labor (DOL). I became aware sometime while I
was employed by Preston Gates.
Question 10. Did it concern you to be lobbying on behalf of an
individual with such an egregious record of worker abuses?
Answer 10. It was a concern and caused me to insist that any
visitors I accompanied to the Commonwealth of the Northern Mariana
Islands (CNMI) be allowed to visit the manufacturing, hotels, and
worker housing facilities and receive a briefing from CNMI officials on
the status of any outstanding or pending issues or violations. Also, if
Department of Labor or Department of Interior officials visited CNMI at
the time we would arrange a meeting for the visitors with Department of
Labor and/or Interior officials.
senator whitehouse
Question 1. During your time at DOL, according to a GAO report, the
Wage and Hour Division (WHD) systematically failed workers. The 2009
GAO report found that WHD's response to complaints was frequently
inadequate, leaving low wage workers vulnerable to wage theft. Their
investigation found, ``sluggish response times, a poor complaint intake
process, and failed conciliation attempts, among other problems.'' What
role did you play overseeing WHD when you were at DOL? Do you agree
with GAO's findings? If not, explain the basis for your disagreement.
Answer 1. While I was at the Department of Labor (DOL) as Assistant
Secretary for Administration and Management (2001-9), the Wage and Hour
Division staff reported to a presidentially appointed and Senate-
confirmed Administrator and an Assistant Secretary for Employment
Services Administration. The 2009 Government Accountability Office
report you reference was published after I was no longer employed at
DOL. However, it was recently brought to my attention in my meeting
with Senator Warren (D-MA). I have since reviewed the report and its
findings on the performance of certain wage and hour investigators
seemed well-documented.
Question 2. Additionally, WHD employees often provided inaccurate
responses and, in one investigative case, an investigator, ``lied about
investigative work performed and did not investigate GAO's fictitious
complaint.'' Do you believe that WHD employees should have to answer
complaints truthfully and should investigate claims in a timely manner?
As Deputy, what steps would you take to ensure that all DOL employees
follow high ethical and performance standards?
Answer 2. I believe all Federal employees should respond to
complaints truthfully, should investigate claims in a timely manner,
and follow high ethical and performance standards. If confirmed, I will
work with agency ethics officers and the agencies to ensure they are
following high ethical and performance standards.
Question 3. During your testimony before the HELP Committee, you
describe the position of Deputy Secretary as that of a COO, tasked with
running the department ``efficiently and effectively''. What specific
steps have you taken in your prior government roles that demonstrate
your ability to do so?
Answer 3. The most specific steps I can cite involved my role as
Assistant Secretary of Labor for Administration and Management (2001-
9). In that role, I helped the Department of Labor (DOL) to be the
first cabinet department to achieve all ``green'' ratings on President
George W. Bush's governmentwide management agenda in June 2005. I was
also involved with: (1) helping DOL's annual Performance and
Accountability Report receive a first-place ranking 4 years in a row
(fiscal year 2002-5) from George Mason University's Mercatus Center;
(2) helping DOL receive four President's Quality Awards between 2004
and 2006; (3) helping DOL receive eight straight clean audits (2001-8);
and (4) coordinating the consolidation of DOL office space.
Question 4. Will you personally cooperate fully with any inquiries
from the GAO, the DOL IG?
Answer 4. Yes.
Question 5. The Office of Legal Counsel has issued an opinion
stating:
``Members who are not committee or subcommittee chairmen
sometimes seek information about executive branch programs or
activities, whether for legislation, constituent service, or
other legitimate purposes (such as Senators' role in providing
advice and consent for presidential appointments) in the
absence of delegated oversight authority. In those non-
oversight contexts, the executive branch has historically
exercised its discretion in determining whether and how to
respond, following a general policy of providing only documents
and information that are already public or would be available
to the public through the Freedom of Information Act, 5 U.S.C.
Sec. 552.''
Do you believe that Members of Congress in the minority are
entitled to no more information than is required to be disclosed under
FOIA? What is your position on responding to minority oversight
requests?
Answer 5. If confirmed, I will provide responses to all Members of
Congress.
Question 6. During your hearing before the HELP committee, you
repeatedly cited your intention to advance President Trump and
Secretary Acosta's agenda at the DOL. The Trump Budget Proposed to cut
the DOL budget by 19.8 percent. How will reducing the budget help DOL
achieve its mission of helping wage earners, job seekers, retirees,
and, ``improve working conditions, advance opportunities for profitable
employment and assure work-related benefits and rights''? As the Deputy
Secretary at DOL, would you advocate against a proposed 20 percent
budget cut? If such a cut were to come to DOL, what would your
priorities be in responding to cuts of that size?
Answer 6. If confirmed, I will take the mission of the Department
of Labor very seriously when executing my duties. As a nominee, I did
not participate in the development of the President's budget proposal.
The President's budget is pending before Congress and ultimately
Congress will determine which programs are funded, at what level, and
which authorizing proposals to adopt. If I am confirmed, I will work to
maximize every dollar the Department of Labor is appropriated. I
believe there are always efficiencies that can improve programs and
will commit to make the most of the dollars Congress appropriates to
the Department.
Question 7. In your opinion from your prior experience at DOL, what
are the three most important DOL offices or programs under the Deputy
Secretary? The three least?
Answer 7. All Department of Labor offices make an important
contribution to the overall mission of the Department.
Question 8. In your opinion what were the three most significant
enforcement actions taken by Obama's DOL? What were the three most
significant enforcement actions taken during your tenure at DOL?
Answer 8. I do not have a thorough knowledge of all of the Obama
administration Department of Labor (DOL) enforcement actions to comment
fairly. I did not oversee an enforcement agency during my previous
tenure at DOL so I do not think it would be fair for me to offer such
an opinion.
Question 9. You previously advocated to Member of Congress,
congressional staff, and others on issues related to the Commonwealth
of the Northern Mariana Islands, where documented labor abuses included
workers who were essentially indentured servants, coerced abortions,
guarded labor barracks, and systematic underpayment. These are
longstanding issues and were reported on in a 1993 New York Times
article, titled ``Made in the U.S.A.?--Hard Labor on a Pacific Island/A
special report; Saipan Sweatshops Are No American Dream.'' How many
trips did you personally make to CNMI? How many trips for others did
you organize and for whom? What was the itinerary? Did any of these
trips include visits to factories, labor barracks, or any workplaces
with alleged labor violations? Did any of these itineraries address
labor conditions?
Answer 9. The Commonwealth of the Northern Mariana Islands (CNMI)
was a client of Preston Gates, the firm at which I was employed. Over a
5-year period from 1996 to 2000, I visited the CNMI--at the invitation
of the CNMI--about 20 times. Those trips involved Members of Congress,
congressional staff, and public policy advocates, all of whom were
invited to visit CNMI by the CNMI government. To the best of my
recollection every trip involved visits to factories, labor housing
facilities, and some workplaces where labor violations had occurred.
Visitors would also be briefed from local CNMI officials involved with
workplace safety and U.S. Department of Labor representatives.
Question 10. Did you engage in advocacy to oppose Senator Frank
Murkowski's Northern Mariana Islands Covenant Implementation Act, which
passed the Senate unanimously in 2000? Who were your clients? How many
meetings did you have with then-Republican House Whip Tom DeLay on CNMI
issues?
Answer 10. While employed by Preston Gates and representing the
Commonwealth of the Northern Mariana Islands (CNMI) I probably engaged
in advocacy to oppose the Northern Mariana Islands Covenant
Implementation Act, but most of my activity was focused on the House of
Representatives. I was in very few meetings with House Whip Tom DeLay
on CNMI issues--most contact with him was handled by Mr. Abramoff.
Question 11. During your interview with Senate staff, you indicated
that you resigned from your consulting position with the Council of
National Policy on December 31, 2012. However, CNP's tax form 990 for
2013 lists you as a contractor receiving $116,667 in compensation. How
do you reconcile that discrepancy? What work did you do for the Council
of National Policy in 2013?
Answer 11. That was a payment for prior work and part of the terms
of the employment agreement. I performed no work in 2013.
Question 12. The Council of National Policy worked to encourage and
support the 2013 government shut down. In your position with CNP, did
you do anything in conjunction with the government shutdown? If so,
what, and when?
Answer 12. My contract with the Council of National Policy ended on
December 31, 2012. The government shutdown occurred in October 2013. I
did nothing in conjunction with the government shutdown. Ultimately,
Congress determines whether and when to fund the government.
Question 13. NOAA, NASA, the U.S. National Academies of Sciences,
and 31 leading, nonpartisan scientific societies all agree that climate
change is real and humans are major contributors to it. Do you believe
climate change is real? Do you personally believe that human activity
contributes to climate change? If a matter involving climate change
were to come before you at the Department of Labor, on what sources of
scientific information would you rely?
Answer 13. Like Secretary Acosta and President Trump, I am
committed to helping stimulate the economy and help businesses increase
the number of jobs. As with any issue that comes before me, I will use
data, evidence, performance metrics, and other measures to guide my
decisionmaking.
Question 14. Will you sign the Trump Ethics pledge? Do you expect
to request any waivers to the Trump Ethics pledge? If so, what would
they be for?
Answer 14. If confirmed, I will sign the ethics pledge and will not
request any waivers.
Question 15. Have you ever solicited money for a 501(c)(4) groups,
such as the Council for National Policy Action Inc.? If so, from whom?
In what amounts? When were these donations solicited?
Answer 15. No.
Question 16. For anyone listed in 15, will you recuse yourself from
any issues involving these individuals or organizations in your role as
Deputy Secretary?
Answer 16. Not applicable.
senator warren
budget
Question 1. The President has proposed significant budget cuts to
the Department of Labor. Have you assessed the potential impact of
these changes?
If so, what have you concluded?
Answer 1. As a nominee, I did not participate in the development of
the President's budget proposal. The President's budget is pending
before Congress and ultimately Congress will determine which programs
are funded, at what level, and which authorizing proposals to adopt. If
I am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated. I believe there are always efficiencies that can
improve programs and will commit to make the most of the dollars
Congress appropriates to the Department.
Question 2. To the extent that you believe that budget cuts do not
undermine the Department's mission, what changes would you recommend so
that the Department is more efficient and can continue to meet its
mission despite budget cuts?
Answer 2. As Congress will ultimately determine agency funding
levels, it would be premature for me to recommend any specific changes
based on funding levels. If I am confirmed I will work to maximize
every dollar the Department of Labor is appropriated. I believe there
are always efficiencies that can improve programs and will commit to
make the most of the dollars Congress appropriates to the Department.
Question 3. If you believe that the President proposes cuts that
undermine the Department's ability to fulfill its mission, will you
commit to advocating for a larger Department budget to the White House?
Answer 3. Yes.
Question 4. In the same circumstances, or if you believe that
Congress proposes cuts that undermine the Department's ability to
fulfill its mission, will you commit to advocating for a larger
Department budget to Congress?
Answer 4. Yes.
Question 5. Will you commit to informing the HELP Committee if the
budget is insufficient to fulfill the Department of Labor's mission?
Answer 5. Yes.
Question 6. The President's budget proposes cuts to some of the
Department's enforcement agencies, including the Occupational Safety
and Health Administration and the Office of Federal Contract Compliance
Programs.\1\ Do you believe these cuts will result in a reduction in
the number or scope of enforcement actions taken by the Department?
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\1\ https://www.dol.gov/sites/default/files/FY2018BIB_0.pdf.
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Answer 6. As Congress will ultimately determine agency funding
levels and make any authorizing legislative changes, and as I have not
spoken with the agencies, it would be premature for me to opine on the
extent to which reductions would affect agency action. My understanding
of the proposed reduction to the Occupational Safety and Health
Administration (OSHA) is that a majority of the decrease was not for
enforcement activities, but to eliminate training grants and shift some
resources to other OSHA programs. If I am confirmed, I will work to
maximize every dollar the Department of Labor is appropriated. I
believe there are always efficiencies that can improve programs and
will commit to make the most of the dollars Congress appropriates to
the Department.
Question 7. The Government Accountability office released two
reports in 2008 and 2009, respectively, detailing alarmingly inadequate
intake and enforcement at the Department of Labor's Wage and Hour
Division, based on complaints, case studies, case data analysis, and
interviews with Division staff. According to the reports, these
failures were due at least in part to flaws in the investigative
process, data reliability issues, and resource limitations.\2\ The
Department's comments on those findings acknowledged ``significant
shortcomings in WHD's program.''\3\ With the exception of the final 2
months of one of the GAO's investigations, you were serving as
Assistant Secretary for Administration and Management and Chief
Information Office at the Department during the period that the
reports' findings cover.
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\2\ http://www.gao.gov/products/GAO-08-973T; http://www.gao.gov/
products/GAO-09-458t.
\3\ http://www.gao.gov/assets/300/291496.pdf.
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To what extent were you involved in the budget, management of
intake and investigative functions, and data management at the Wage and
Hour Division between 2001 and 2009?
Please describe, to your knowledge, the causes of the problems that
GAO discovered at the Wage and Hour Division during your time at the
Department?
How do you believe that the management and budget of the Wage and
Hour Division should have been handled differently in order to avoid
the problems that GAO discovered?
If confirmed, what specific measures will you take to ensure that
similar failures do not take place at the Wage and Hour Division or
anywhere else at the Department of Labor?
Answer 7. While I was at the Department of Labor (DOL) as Assistant
Secretary for Administration and Management (2001-9), the Wage and Hour
Division staff reported to a presidentially appointed and Senate-
confirmed Administrator and an Assistant Secretary for Employment
Services Administration. The 2009 Government Accountability Office
report you reference was published after I was no longer employed at
DOL. However, you recently brought it to my attention in our meeting in
your office. I have since reviewed the report and its findings on the
performance of certain wage and hour investigators seemed well-
documented.
Question 8. During your hearing, you expressed support for the
Department's job training programs. Yet the President has proposed
major cuts to those programs. Do you believe these cuts will harm or
reduce the impact of these programs?
If so, in what ways? If not, why not?
How will you and other DOL officials improve these programs so they
can accomplish their full mission with fewer resources?
Answer 8. The President's budget is pending before Congress and
ultimately Congress will determine which job training programs are
funded and at what level. If I am confirmed, I will work to maximize
every dollar the Department of Labor is appropriated. I believe there
are always efficiencies that can improve programs and will commit to
make the most of the dollars Congress appropriates to the Department.
Question 9. President Trump's budget proposes completely
eliminating the Senior Community Service Employment Program, which
helps low-income seniors seeking employment.\4\
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\4\ https://www.dol.gov/sites/default/files/FY2018BIB_0.pdf.
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Do you believe that eliminating or significantly reducing funding
to the Senior Community Service Employment Program would be a wise
decision?
If so, why?
If not, will you commit to aggressively advocating for funding for
the Senior Community Service Employment Program?
Answer 9. If confirmed, with regard to the Senior Community Service
Employment Program, I would need to learn more information about the
program and examine its recent metrics before opining on it. However,
as a nominee, I did not participate in the development of the
President's budget proposal. The President's budget is pending before
Congress and ultimately Congress will determine which programs are
funded, at what level, and which authorizing proposals to adopt. If I
am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated. I believe there are always efficiencies that can
improve programs and will commit to make the most of the dollars
Congress appropriates to the Department.
Question 10. President Trump's budget proposes significant cuts to
Job Corps, a DOL program that helps disadvantaged youth enter the
workforce.\5\
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\5\ Id.
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Do you believe that making large cuts to Job Corps would be a wise
decision?
If so, why?
If not, will you commit to aggressively advocating for Job Corps
funding?
Answer 10. Job Corps is a longstanding program at the Department of
Labor (DOL). It is also a program that has raised significant safety
and security concerns. As a nominee, I did not participate in the
development of the fiscal year 2018 budget proposal and it is
ultimately Congress that determines which programs are funded and at
what levels. If I am confirmed, I will work to maximize every dollar
DOL is appropriated and take a close look at each Job Corps center and
its metrics. Improvements in Job Corps are necessary and the safety and
security of the students in these centers must remain a top priority.
Question 11. President Trump's budget proposes significant cuts to
the Office of Disability Employment Policy, which helps people with
disabilities succeed in the workplace.\6\
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\6\ Id.
---------------------------------------------------------------------------
Do you believe that making large cuts to the Office of Disability
Employment Policy would be a wise decision?
If so, why?
If not, will you commit to aggressively advocating for funding for
the Office of Disability Employment Policy?
Answer 11. The Office of Disability Employment Policy (ODEP) serves
an important mission at the Department of Labor, helping to increase
workplace success for individuals with disabilities. Increasing the
labor force participation rate of individuals with disabilities is a
goal everyone can support. As a nominee, I did not participate in the
development of the President's budget proposal. The President's budget
is pending before Congress and ultimately Congress will determine which
programs are funded and at what level. If I am confirmed, I will work
to maximize every dollar ODEP is appropriated.
Question 12. President Trump's budget proposes eliminating the
Susan Harwood Training Grant Program, which helps provide training for
workers and employers on addressing dangers to workers' safety and
health in the workplace.\7\
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\7\ https://www.osa.gov/dte/sharwood/.
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Do you believe that eliminating the program would be a wise
decision?
If so, why?
If not, will you commit to aggressively advocating for funding for
the Program?
Answer 12. If confirmed, I would need to review the Susan Harwood
Training Grant Program and its recent metrics before opining on it.
However, as a nominee, I did not participate in the development of the
President's budget proposal. The President's budget is pending before
Congress and ultimately Congress will determine which programs are
funded, at what level, and which authorizing proposals to adopt. If I
am confirmed, I will work to maximize every dollar the Department of
Labor is appropriated. I believe there are always efficiencies that can
improve programs and will commit to make the most of the dollars
Congress appropriates to the Department.
Question 13. What process will you use to prioritize resources
between compliance assistance and enforcement functions of the
Department?
Answer 13 If confirmed, I look forward to learning more from each
enforcement agency about its compliance and enforcement efforts,
including reviewing metrics and outcomes. Compliance assistance helps
employers understand how to comply with the law, particularly small
businesses who may not have robust legal departments. I believe
compliance assistance and enforcement go hand-in-hand.
Question 14. As part of this process, what metrics will you use to
assess the success or failure of compliance assistance and enforcement
efforts, respectively, within the Department's enforcement agencies?
Answer 14. If confirmed, I look forward to learning more from each
enforcement agency about its compliance and enforcement efforts.
Compliance assistance helps employers understand how to comply with the
law, particularly small businesses who may not have robust legal
departments. I believe compliance assistance and enforcement go hand-
in-hand. Each agency has its own performance metrics and, if confirmed,
those will guide any evaluation of an agency.
Question 15. Do you believe that the Department's resources are
currently allocated between compliance assistance and enforcement
functions in an appropriate manner? If not, what specific changes to
those allocations will you support if you are confirmed?
Answer 15. If confirmed, I look forward to learning more from each
enforcement agency about its compliance and enforcement efforts,
including reviewing metrics and outcomes. Compliance assistance helps
employers understand how to comply with the law, particularly small
businesses who may not have robust legal departments. I believe
compliance assistance and enforcement go hand-in-hand.
Question 16. If confirmed, will you ensure that compliance
assistance does not become a substitute for aggressive enforcement at
the Department's enforcement agencies?
If so, what metrics will you use to ensure that compliance
assistance does not become a substitute for aggressive enforcement?
Will you commit to providing the HELP committee with updates of
these metrics on a quarterly basis?
Answer 16. If confirmed, I look forward to learning more from each
enforcement agency about its compliance and enforcement efforts,
including reviewing metrics and outcomes. Compliance assistance helps
employers understand how to comply with the law, particularly small
businesses who may not have robust legal departments. I believe
compliance assistance and enforcement go hand-in-hand.
workforce
Question 17. If confirmed, your duties will include overseeing the
Department of Labor's workforce. When Secretary Acosta served as
Assistant Attorney General for the Civil Rights Division of the
Department of Justice (DOJ), the DOJ's Inspector General discovered
that Secretary Acosta failed to adequately supervise a Deputy who
engaged in politicized hiring and other seriously improper personnel
actions.\8\
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\8\ https://oig.justice.gov/special/s0901/final.pdf.
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If confirmed, what safeguards will you use to ensure that similarly
improper actions do not take place at the Department of Labor during
your tenure?
If confirmed, what steps will you take to ensure that you and other
members of the Department's leadership would be in a position to
discover improper actions such as politicized hiring if they were to
take place?
Will you commit to reporting such activity to the HELP Committee if
you were to discover that it had taken place?
Will you commit to actively preventing politicization of the
Department of Labor in general? If so, what specific steps will you
take to do so?
Answer 17. There are many legal protections for civil servants.
Political views should not be considered in the hiring of career civil
servants and the government has a selection process that must be
followed. If confirmed, I will follow the law and commit to protecting
the rights of all civil servants at the Department of Labor.
Inappropriate or unlawful conduct will be subject to appropriate
disciplinary action and, if confirmed, I will work to make sure the
Department keeps the committee informed generally on this issue and
others that are important to the committee.
Question 18. What steps would you take to protect the professional
staff of the Bureau of Labor Statistics (BLS) from political
interference if the President, White House staff, or any other members
of the executive branch were to attack the credibility or objectivity
of the BLS?
Answer 18. The Bureau of Labor Statistics is an independent
statistical agency within the Department of Labor. For more than 130
years, BLS has provided statistical economic information. If confirmed,
I will commit to defending the independence of BLS.
Question 19. Will you commit to closing the revolving door and
preventing Labor Department employees from personally profiting from
their activities at the Department?
Will you prevent Labor Department employees from working on issues
that directly impact a previous employer?
What specific steps will you take to ensure that Department
employees are complying the ethics pledge required by President Trump's
``Ethics Commitments by executive branch appointees'' Executive order?
Will you commit to informing the HELP Committee if you discover
that a Department of Labor employee has violated that ethics pledge or
related regulations or statutes?
Will you demand that, prior to appointment, political appointees
pledge that they will not work in industries related to or
significantly subject to Labor Department regulation for 3 or more
years upon leaving Federal service?
Answer 19. Employees of the Department of Labor must fully comply
with all ethics laws and regulations, including the restrictions
contained in 18 U.S.C. 208 and 5 C.F.R. 2635.502. Non-career employees
are also subject to additional restrictions contained in Executive
Order 13770 (``Ethics Commitments by Executive Branch Appointees''),
which includes a requirement that they sign an ethics pledge. By
signing this pledge, the non-career employee commits to,
`` . . . not, within 5 years after the termination of my
employment as an appointee in any executive agency in which I
am appointed to serve, engage in any lobbying activities with
respect to that agency.''
All employees, including non-career appointees, are also subject to
the applicable post-employment conflict-of-interest provisions in 18
U.S.C. 207.
Question 20. During President Trump's campaign, there were reports
that even volunteers were required to sign non-disclosure agreements.
Following his election, there were also reports that transition
officials were requesting information about career employees who worked
on issues such as climate change at the Energy Department or women's
issues at the State Department.\9\ Any implication that career staff
who worked on advancing policies that the new President disagrees with
may be targeted or retaliated against could create a chilling effect on
non-political Federal employees simply trying to do their jobs.
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\9\ https://www.washingtonpost.com/news/josh-rogin/wp/2016/12/22/
trump-team-asked-state
-department-for-info-on-womens-issues-programs-stoking-fears-of-
another-witch-hunt/?utm_term
=.50b42eb8cf86.
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If you are confirmed, will you commit to protect the rights of all
civil servants in the Department of Labor?
Those rights include the right for civil servants to communicate
with Congress, and in fact it is against the law to deny or interfere
with their right to do so.\10\ If you are confirmed, do you commit to
protect this fundamental right as well?
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\10\ 5 U.S.C. Sec. 7211.
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Answer 20. There are many legal protections for civil servants.
Political views should not be considered in the hiring of career civil
servants and the government has a selection process that must be
followed. If confirmed, I will follow the law and commit to protecting
the rights of all civil servants at the Department of Labor.
Inappropriate or unlawful conduct will be subject to appropriate
disciplinary action.
procurement
Question 21. In some of your prior positions within the Federal
Government, you have overseen procurement for various agencies. Do you
believe that the Federal Government should ever award contracts to
companies that have been found to have committed serious or repeated
violations of Federal labor law?
If so, in what circumstances would this be an appropriate use of
Federal dollars?
If not, will you commit to advocating for aggressive oversight of
the labor records of Federal contractors and prospective Federal
contractors?
Answer 21. Government agencies, including the Department of Labor,
have certain suspension and debarment authorities granted to them in
statute and through the Federal Acquisition Regulations. I believe
fully adjudicated labor law violations can and should be considered,
especially with regard to repeat or willful violators. However, it's
not one-size-fits-all--for example, a repeat or willful violator is not
the same as a contractor who perhaps has an allegation that has not yet
been adjudicated.
Question 22. Do you believe that there any circumstances in which
it is not necessary for a Federal contracting officer to review the
labor record of a contractor seeking a contract from the Federal
Government?
Answer 22. There are a number of requirements that contracting
officers must follow in the process of awarding a contract and I will
make sure those requirements are followed if I am confirmed. For
example, I understand that before awarding certain contracts, a
contracting officer is required to see if the potential contractor was
recently audited by the Office of Federal Contract Compliance Programs.
Question 23. Do you believe that sufficient procedures exist for
coordination between agencies that award contracts and the Department
of Labor's enforcement agencies, in order to ensure contracting
officers are able to thoroughly review the accurate labor record of a
company seeking a Federal contract? a. If not, what policies to
implement sufficient procedures would you support?
Answer 23. If confirmed, I look forward to being briefed on the
extent to which agencies currently coordinate and the specific
procedures the agencies follow. It would be premature for me to suggest
policies or changes before examining all of the relevant information.
senator kaine
Question 1. The projected insolvency of the Pension Benefit
Guaranty Corporation's (PBGC) multi-employer pension program remains
unaddressed.
In your view, what is the role of the Department of Labor in this
debate?
Will you work proactively to address the PBGC's insolvency issues
before a large multi-employer pension plan fails?
Answer 1. The Secretary of Labor is Chair of the Pension Benefit
Guaranty Corporation's (PBGC) Board of Directors. The PBGC's multi-
employer pension program is woefully underfunded and is facing the
insolvency of several large multi-employer pension plans in the near
future. This is a serious issue that requires thoughtful consideration.
I believe most, if not all, potential solutions would require
congressional action. If confirmed, and as Congress continues to have
these discussions, I look forward to working with the President,
Congress, and other stakeholders to find a solution to protect workers'
pensions.
Question 2. In May, Department of Labor guidance for States that
established payroll-deduction IRA plans for workers without access to a
retirement savings plan through their employers was repealed by
Congress and signed by the President.
Do you support the original guidance?
What steps should the Department of Labor take to increase access
to retirement savings options for employees who do not have access to
such plans through an employer?
Answer 2. I understand the rules you reference were nullified by a
Congressional Review Act resolution of disapproval and, if confirmed, I
look forward to being briefed by Employee Benefits Security
Administration (EBSA) staff regarding options to encourage more
Americans to save for retirement, including those who do not have
access to a retirement plan through their employer.
Question 3. The Rehabilitation Act is a critical law that
authorizes the formula grant programs for vocational rehabilitation,
supported employment, independent living, and client assistance
throughout the Nation. Sections 501 of the law directs the Federal
Government to recruit and hire people with disabilities. Section 503
requires Federal contractors to recruit and hire people with
disabilities. Section 508 describes accessibility requirements for
federally funded programs. While the Rehabilitation Act has helped
advance and expand the opportunities of people with disabilities in the
workforce, people with disabilities still face many barriers when
compared to people without disabilities. Because the Rehabilitation Act
and State vocational rehabilitation agencies have been incorporated
into the broader workforce development system under the Workforce
Innovation and Opportunity Act, will your Department work closely with
the Department of Education to ensure that people with disabilities
seeking employment and training services are able to avail themselves
of all necessary services under State workforce systems? How will your
Department engage in this work?
Answer 3. If confirmed, I look forward to being briefed on the
coordination that has occurred between the Department of Labor's
Employment and Training Administration and Office of Disability
Employment Policy and the Department of Education. I believe it is
important to ensure that individuals with disabilities have access to
services in the State workforce systems and, to the extent the programs
may be duplicative, that they are streamlined so that funding is
maximized to help as many individuals with disabilities access services
as possible.
Question 4. As the agency responsible for enforcing many of the
laws that ensure safe and fair employment practices, the Department of
Labor has a heightened responsibility to ensure its own labor and
employment practices are unimpeachable. Will you commit to ensuring
that hiring, transfers, and workplace practices are not politicized at
the Department of Labor, and that employees at the Department of Labor
comply with all labor and employment laws, including the Civil Service
Reform Act?
Answer 4. There are many legal protections for civil servants.
Political views should not be considered in the hiring of career civil
servants and the government has a selection process that must be
followed. If confirmed, I will follow the law and commit to protecting
the rights of all civil servants at the Department of Labor.
Inappropriate or unlawful conduct will be subject to appropriate
disciplinary action.
Response by Marvin Kaplan to Questions of Senator Roberts, Senator
Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator
Warren, and Senator Kaine
senator roberts
Question 1. Mr. Kaplan, as you know, in a 1979 case called NLRB v.
Catholic Bishop of Chicago, the U.S. Supreme Court held that the NLRB
had no jurisdiction over instructors at church-operated schools. In a
2014 case called Pacific Lutheran University, the NLRB chose in a
divided 3-2 opinion to disregard that judicial precedent and instead
adopted a test where the NLRB will assert jurisdiction unless a
religious-affiliated institution in part proves to the NLRB's
satisfaction that it holds out its faculty as performing a ``specific
religious function.''
If confirmed, should a situation arise where a case is brought
before the NLRB, will you give this issue the careful attention it
deserves and be sure to give proper weight to precedent in similar
cases?
Answer 1. If confirmed, all my decisions will be based on the facts
before us, legislative text, legislative history, Board and court
precedent, an analysis of the party's briefs, staff recommendations,
and discussions with my fellow Board members.
Question 2. Mr. Kaplan, in the 2004 decision in Lutheran Heritage
Village-Livonia, the Board has determined work rules and handbook
provisions are unlawful if employees ``would reasonably construe'' them
to prohibit protected activities under Section 7 of the NLRA. Under
this standard, the Board has found dozens of facially neutral
employment policies to be unlawful, raising real questions about how
employers can draft, let alone implement, responsible employment
policies.
If confirmed, should a situation arise where a case is brought
before the NLRB, will you give this issue the careful attention it
deserves?
Answer 2. If confirmed, I will give each case that comes before the
Board the careful attention it deserves.
senator murray
Question 1. What, in your view, is the mission of the agency to
which you have been nominated?
Answer 1. The National Labor Relations Board is responsible, as the
National Labor Relations Act and its amendments provide, for ensuring
employees 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 refrain from any or all 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 [the Act].''
Question 2. Do you believe that the purpose of the National Labor
Relations Act (NLRA), enforced by the National Labor Relations Board
(NLRB or Board), is to encourage and protect workers' rights to
organize and engage in collective bargaining with their employers? If
not, please describe in detail your views on the purpose of the NLRA
and the Board.
Answer 2. Taken together, the NLRA and the Taft-Hartley amendments
encourage and protect workers' rights to organize and collective
bargain if they so choose. As a corollary, employees have the right to
refrain from any of these activities, as well, if they so choose.
Question 3. Please describe your views on the role and importance
of labor unions in today's workplaces and economy.
Answer 3. Labor unions are one important avenue through which
employees can strive to achieve better working conditions, including
higher wages and better benefits. Labor organizations can also provide
a means through which employees can express their opinions in the
workplace if they so choose.
Question 4. What, in your view, is a scenario in which it would be
appropriate for the NLRB to take action against a company who is
unfairly retaliating against workers based on antiunion hostility?
Answer 4. It would be appropriate for the NLRB to find a violation
and provide relief when an employer discharges an employee for
supporting a labor organization in violation of section 8(a)(3) of the
National Labor Relations Act.
Question 5. Do you agree that the workplace and the employer-
employee relationship has changed dramatically in recent years, and can
you describe what you see as the key changes affecting workers' ability
to join together and engage in collective bargaining? What are some of
those challenges and how would you address them?
Answer 5. The overwhelming change that has occurred is globalized
competition, but any changes that would fundamentally alter the
application of the National Labor Relations Act should come from
Congress, through the legislative process, not the Board.
Question 6. Do you believe the designation of workers as
independent contractors rather than employees is a practice that is
increasing?
Answer 6. There is evidence the designation of workers as
independent contractors is increasing. According to a report published
by the National Bureau of Economic Research, more than 16 percent of
U.S. workers participate in flexible contract work as their primary
job, a 56 percent increase over the past 10 years.
Question 7. Please provide your view on when the NLRB should
overturn settled precedents, and what the standard should be in doing
so.
Answer 7. The NLRB should endeavor to maintain stability in labor
law. Among other things, deference to precedent should be based on the
length of time it has been precedent and the number of times it has
been upheld by subsequent Boards.
Question 8. What specific considerations will you rely upon when
deciding whether to authorize petitions to have a recidivist violator
of the NLRA held in contempt of court for violating a court order?
Answer 8. The Board has long had a unit responsible for considering
whether recidivist violators of the NLRA who disobey court-enforced
NLRB orders should be held in contempt of court. To the best of my
knowledge that office operates well. If confirmed, I would be inclined
to respect its recommendations.
Question 9. Do you believe there were instances where the Board
exceeded its authority during the Obama administration? In what cases?
Answer 9. I have not prejudged any of the issues addressed by the
Board during the previous administration. If confirmed, my decisions
will be based on the facts before us, legislative text, legislative
history, Board and court precedent, an analysis of the party's briefs,
staff recommendations, and discussions with my fellow Board members.
Question 10. The Board has been the target of criticism for its use
of adjudication rather than rulemaking to establish policy. Under
President Obama, the Board conducted two major notice-and-comment
rulemakings for the first time in decades. If confirmed, do you intend
to continue this practice of making new rules or altering existing
rules through notice-and-comment procedures?
Answer 10. The Board has the authority to establish policy through
rulemaking. Whether rulemaking is an appropriate mechanism to establish
specific policies must be evaluated on a case-by-case basis. Among
other things, in the event that the Board does take part in rulemaking,
I would strongly advocate for providing the public ample opportunity to
review, analyze, and comment on the particular rule.
Question 11. The Administrative Conference of the United States has
recommended that agencies ``should develop processes for systematic
review of existing regulations'' and that they ``should provide
adequate opportunity for public involvement in both the priority-
setting and review processes.'' If confirmed, will you conduct robust,
transparent retrospective reviews prior to any revision or reversal of
existing NLRB law?
Answer 11. Your premise deals with regulations. See my answer to
question 10 above. Regarding revision or reversal of existing NLRB law,
please see my answer on precedent above.
Question 12. Do you believe that existing doctrines and regulations
should only be changed where there is empirical evidence suggesting
that they are flawed, or is it appropriate for the Board to revise
rules even if such revisions are not supported by concrete evidence?
Answer 12. As stated above, if confirmed, my decisions will be
based on the facts before us, potentially including empirical evidence,
legislative text, legislative history, Board and court precedent, an
analysis of the party's briefs, staff recommendations, and discussions
with my fellow Board members.
Question 13. Please describe in detail your experience working on
issues involving the National Labor Relations Act.
Answer 13. At the direction of the Chairmen of both the House
Committee on Oversight and Government Reform and the Committee on
Education and the Workforce , I conducted oversight of the National
Labor Relations Board. True oversight requires a thorough understanding
of the authorizing statute, in this case the National Labor Relations
Act, and Board and court cases interpreting the Act. This work also
involved considering the interest of employees, unions, and employers
covered by the Act. Additionally, at the Committee on Education and the
Workforce, as Workforce Policy Counsel, I counseled the Chairman on
labor policy, which required a thorough review of the National Labor
Relations Act, the legislative history, and Board and court cases
interpreting the Act.
Question 14a. Please describe your experience representing
employers, workers, or unions in proceedings before the National Labor
Relations Board. Specifically:
Have you ever filed a charge with the Board?
Answer 14a. No.
Question 14b. Have you ever handled an unfair labor practice case
or representation case before the Board?
Answer 14b. No.
Question 14c. Have you ever represented a party in the court of
appeals related to a petition for review of a Board order?
Answer 14c. No.
Question 15. Have you ever represented a worker in an employment
matter?
Answer 15. No.
Question 16. During your confirmation hearing before the committee,
I asked whether you have ever been involved in efforts to protect
workers' right to organize. In response, you cited the oversight you
conducted as a staff member in the House of Representatives, which you
testified ``made sure the agency operated within its statutory
authority.'' Can you provide a specific example of oversight you
conducted that was not critical of the NLRB's decisions or actions, and
additionally how that oversight advanced workers' rights to organize?
Answer 16. In 2011, Inspector General David Berry issued a report
entitled ``Case Processing Costs'' which indicated the NLRB regional
offices could achieve greater efficiencies by consolidating offices and
eliminating positions in overstaffed regions by attrition. In 2012, as
Workforce Policy Counsel for the House Education and the Workforce
Committee, I worked extensively with NLRB Inspector General and the
National Labor Relations Board to institute reforms related to the IG's
2011 findings. Ultimately, the NLRB consolidated offices from 32 to 26.
Greater efficiency is essential to the expeditious handling of both
unfair labor practice charges and elections which, in turn, is
essential to protecting the rights of workers to organize. See also my
answer to #13 above.
Question 17. With regard to your positions with the U.S. House of
Representatives' Committee on Oversight and Government Reform and the
Committee on Education and Workforce, please provide a list of all
hearings, oversight requests, and legislation (including appropriations
riders) pertaining to the NLRB in which you participated during your
tenure on Capitol Hill.
Answer 17. I do not have records of all hearings, oversight
requests, and legislation pertaining to the NLRB in which I
participated during my time on Capitol Hill.
While serving as counsel for the House Committee on Oversight and
Government Reform, the committee did not hold hearings or advance
legislation pertaining to the NLRB. Unfortunately, the House Committee
on Oversight and Government Reform Activity Reports do not appear to
include specific oversight activities of the minority. In an attempt to
provide the information requested, I reached out to House Committee on
Oversight and Government Reform, but they could not provide the
information. As such, I cannot provide a list of oversight requests
pertaining to the NLRB in which I participated during my time at the
House Committee on Oversight and Government Reform.
The following list includes the hearings, oversight requests, and
legislation, based on the House Committee on Education and the
Workforce Activity Reports available on the committees' Web sites,
pertaining to the NLRB in which I participated during my time at the
House Committee on Education and the Workforce.
Committee on Education and the Workforce Hearings
February 11, 2011--``Emerging Trends at the National Labor Relations
Board''
March 31, 2011--``The Future of Union Transparency and Accountability''
May 26, 2011--``Corporate Campaigns and the NLRB: The Impact of Union
Pressure on Job Creation''
July 7, 2011--``Rushing Union Elections: Protecting the Interests of
Big Labor at the Expense of Workers' Free Choice''
September 22, 2011--``Culture of Union Favoritism: Recent Actions of
the National Labor Relations Board''
October 12, 2011--H.R. 3094, ``Workforce Democracy and Fairness Act''
February 7, 2012--``The NLRB Recess Appointments: Implications for
America's Workers and Employers''
July 25, 2012--``Examining Proposals to Strengthen the National Labor
Relations Act''
September 12, 2012--``Expanding the Power of Big Labor: The NLRB's
Growing Intrusion into Higher Education' ''
February 13, 2013--``The Future of the NLRB: What Noel Canning vs. NLRB
Means for Workers, Employers and Unions''
June 26, 2013--H.R. 2346, ``Secret Ballot Protection Act,'' and H.R.
2347, ``Representation Fairness Restoration Act''
September 19, 2013--``The Future of Union Organizing''
March 5, 2014--``Culture of Union Favoritism: The Return of the NLRB's
Ambush Election Rule''.
May 8, 2014--``Big Labor on College Campuses: Examining the
Consequences of Unionizing Student Athletes''
June 24, 2014--``What Should Workers and Employers Expect Next From the
National Labor Relations Board?''
September 9, 2014--``Expanding Joint Employer Status: What Does it Mean
for Workers and Job Creators?''
June 3, 2015--``Compulsory Unionization through Grievance Fees: The
NLRB's Assault on Right-to-Work''
June 16, 2015--H.R. 511, ``Tribal Labor Sovereignty Act of 2015''
September 29, 2015--H.R. 3459, ``Protecting Local Business Opportunity
Act''
Committee on Education and the Workforce Oversight
March 3, 2011--Letter to Chairman Wilma Liebman, National Labor
Relations Board (NLRB), regarding the NLRB budget.
March 4, 2011--Letter to Chairman Wilma Liebman, National Labor
Relations Board (NLRB), regarding NLRB advertisements.
March 7, 2011--Letter to Chairman Wilma Liebman, National Labor
Relations Board, regarding the Specialty Healthcare case.
May 5, 2011--Letter to Acting General Counsel Lafe Solomon, National
Labor Relations Board, regarding the Boeing case.
May 11, 2011--Letter to Chairman Wilma Liebman, National Labor
Relations Board, regarding the Specialty Healthcare case.
October 14, 2011--Letter to Chairman Mark Pearce, National Labor
Relations Board, regarding a request for information on pending
union election challenges.
October 27, 2011--Letter to Chairman Mark Pearce, National Labor
Relations Board, regarding the June 22, 2011 proposed rule on union
election procedures.
November 18, 2011--Letter to Chairman Mark Pearce, National Labor
Relations Board, regarding the June 22, 2011 proposed rule on union
election procedures.
December 16, 2011--Letter to Acting General Counsel Lafe Solomon,
National Labor Relations Board, requesting documents and
communications related to the Board's complaint against the Boeing
Corporation.
January 6, 2012--Letter to Chairman Mark Pearce, National Labor
Relations Board, requesting documents drafted in whole or in part
by the January 2012 recess appointees to the National Labor
Relations Board during their time of employment by the Board.
January 12, 2012--Letter to President Barack Obama opposing the January
2012 recess appointments to the National Labor Relations Board
while the Senate was regularly meeting in pro forma session.
March 28, 2012--Letter to Chairman Mark Pearce, National Labor
Relations Board, regarding the Board's information campaign
focusing on workers' rights to engage in protected concerted
activity.
April 13, 2012--Letter to Inspector General David Berry, National Labor
Relations Board, regarding possible ex parte communications in the
Boeing case by Acting General Counsel Solomon.
May 9, 2012--Letter to Acting General Counsel Lafe Solomon, National
Labor Relations Board, regarding a request for information relating
to the Board's policy changing the timing for representational pre-
elections.
May 17, 2012--Letter to Acting General Counsel Lafe Solomon, National
Labor Relations Board, regarding the Board's position on nationwide
enforcement of a regulation in the event of a split in the Federal
circuit courts.
August 8, 2012--Letter to Chairman Mark G. Pearce, National Labor
Relations Board, regarding a request for a briefing related to the
Board's newly established Office of the Chief Financial Officer.
September 17, 2012--Letter to Attorney General Eric H. Holder, U.S.
Department of Justice, regarding allegations by the National Labor
Relations Board Office of Inspector General that the Acting General
Counsel for the National Labor Relations Board, Lafe Solomon,
engaged in ethical and criminal misconduct.
November 29, 2012--Letter to Chairman Mark G. Pearce, National Labor
Relations Board, and Acting General Counsel Lafe Solomon, National
Labor Relations Board, regarding Office of Inspector General's
finding that personnel in the Division of Advice and Region 19
infringed upon statutory prohibitions regarding ex parte
communications to Board Members.
March 15, 2013--Letter to Chairman Mark G. Pearce, National Labor
Relations Board and to Lafe E. Solomon, Acting General Counsel,
National Labor Relations Board regarding the effect of
sequestration under the Budget Control Act of 2011 on the National
Labor Relations Board.
May 14, 2013--Letter to Ms. Kathryn Ruemmler, Counsel to the President,
The White House, requesting information related to the nomination
of Richard Griffin to the National Labor Relations Board.
March 25, 2014--Letter to Chairman Mark Pearce, National Labor
Relations Board (NLRB), requesting a 30-day extension of the
comment period for the NLRB's February 6, 2014, representation-case
procedures proposed rule.
April 7, 2014--Letter to Chairman Mark Pearce, National Labor Relations
Board (NLRB), stating opposition to the NLRB's February 6, 2014,
representation-case procedures proposed rule.
July 8, 2014--Letter to Chairman Mark Pearce, National Labor Relations
Board (NLRB), requesting a briefing regarding the NLRB's planned
response to the Supreme Court's Noel Canning decision, holding that
President Obama's January 2012 recess appointments to the NLRB are
unconstitutional.
September 16, 2014--Letter to General Counsel Richard Griffin, National
Labor Relations Board, requesting information regarding the joint-
employer test under the National Labor Relations Act.
November 14, 2014--Letter to General Counsel Richard Griffin, National
Labor Relations Board, requesting a briefing regarding NLRB's
August 8, 2014 guidance to personnel concerning steps they should
take to identify alleged wrongdoing under the Occupational Safety
and Health Act and the Fair Labor Standards Act.
February 2, 2015--Letter to Chairman Mark Pearce, National Labor
Relations Board, requesting documents and communications related to
the timing of the Board's publication of the ``ambush election' ''
rulemaking when it failed to be reported as a short-term action in
the 2014 Fall Unified Agenda.
Committee on Education and the Workforce Legislation
H.R. 3094, Workforce Democracy and Fairness Act
H.R. 2587, Protecting Jobs From Government Interference Act
H.R. 2346, Secret Ballot Protection Act
H.R. 2347, Representation Fairness Restoration Act
H.R. 1120, The Preventing Greater Uncertainty in Labor-Management
Relations Act
H.R. 4321, Employee Privacy Protection Act
H.R. 511, Tribal Labor Sovereignty Act of 2015
H.R. 3459, Protection Local Business Opportunity Act
H.J. Res. 29, ``Providing for congressional disapproval under chapter
8 of title 5, United States Code, of the rule submitted by the
National Labor Relations Board relating to representation case
procedures''
Question 18. On March 8, 2011, Congressmen John Kline and Darrell
Issa sent a letter to former NLRB Chairman Wilma Liebman requesting, in
part, an extension of the comment period on the invitation to file
briefs in Specialty Healthcare, and specific information including
communications and financial analysis related to that case. Congressman
Kline sent a followup letter about this issue to Chairman Liebman on
May 11 repeating the request for documents. Did you participate in
drafting these letters? Do you believe that the process in the
Specialty Healthcare case, which has now been affirmed by seven courts
of appeals, was insufficient?
Answer 18. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of the
letters for Chairmen Kline and Issa. The positions taken in this letter
do not necessarily represent my views. The National Labor Relations
Board did not provide sufficient information to judge the sufficiency
of the process.
Question 19. Did you participate in drafting legislation to reverse
and override the NLRB's decision in Specialty Healthcare (involving the
standard for determining appropriate bargaining units)?
Answer 19. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of
legislation for the Chairman and Members of Congress, including the
Workforce Democracy and Fairness Act and the Representation Fairness
Restoration Act. The positions taken in these bills do not necessarily
represent my views. They express the views of the Congressmen that
introduced them. See also answer 20 below.
Question 20. Do you believe that the Specialty Healthcare decision
should be overturned?
Answer 20. I have not prejudged the issues presented in Specialty
Healthcare. If confirmed, my decision in a case that requires the Board
to evaluate the appropriateness of a bargaining unit will be based on
the facts before us, legislative text, legislative history, Board and
court precedent, an analysis of the party's briefs, staff
recommendations, and discussions with my fellow Board members.
Question 21. On October 27, 2011 Congressman John Kline sent a
letter to Chairman Mark Pearce regarding the proposed NLRB rule to
shorten the time between a petition for an election and the actual
election. The letter expressed that he ``reject[ed] both the need for
this rule change and the appropriateness of the Board's proposal.'' The
letter also requested information related to the rulemaking including a
list of NLRB staff who were working on the rule and a timeline of
planned Board actions regarding the rulemaking. Did you participate in
drafting the letter? If so, will you recuse yourself from matters
relating to the NLRB election rule?
Answer 21. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of the
letter for Chairman Kline. The positions taken in this letter do not
necessarily represent my views. I have had general discussions
regarding the standards for recusal with the NLRB ethics office. If I
am confirmed, I will continue to seek their advice and act
appropriately. See also my answer to #24 below.
Question 22. Did you participate in the preparation of hearings
critical of the NLRB's election rules?
Answer 22. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I assisted in the preparation of hearings
related to the NLRB, including those analyzing NLRB election rules. See
also my answer to #24 below.
Question 23. Did you participate in the drafting of legislation to
overturn the election rules?
Answer 23. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of
amendments to the National Labor Relations Act as directed by the
Chairman and Members of Congress, including the Workforce Democracy and
Fairness Act which addressed union elections. The positions taken in
the bill does not necessarily represent my views. It expresses the
views of the Congressmen that introduced it. See also answer 24 below.
Question 24. Do you believe the election rules, which have been
upheld in their entirety by the three courts and have had their desired
effect of reducing delay from the time of an election petition to an
election, should be revised?
Answer 24. If I am confirmed and the Board revisits the election
rules through the adjudicatory process or formal rulemaking, any
revisions to the election rules to which I agree will be based on the
facts before us, legislative text, legislative history, Board and court
precedent, an analysis of the party's briefs or public comments, staff
recommendations, and discussions with my fellow Board members.
Question 25. Did you work on legislation to overturn the NLRB's
Browning-Ferris decision on the standard for finding two employers to
be joint employers?
Answer 25. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of
amendments to the National Labor Relations Act as directed by the
Chairman and Members of Congress. This includes the Protecting Local
Business Opportunity Act which set out a standard for determining
whether two employers are joint employers. The positions taken in the
bill does not necessarily represent my views. It expresses the views of
the Congressmen that introduced it. See also answer 26 below.
Question 26. Do you believe that the NLRB's Browning-Ferris
decision should be overturned?
Answer 26. I have not prejudged the issues presented in Browning-
Ferris. If confirmed, my decision in a case that raises joint employer
issues will be based on the facts before us, legislative text,
legislative history, Board and court precedent, an analysis of the
party's briefs, staff recommendations, and discussions with my fellow
Board members.
Question 27. If you are confirmed, please explain the approach that
you will take with regard to recusal on issues that come before the
Board where you have directly engaged in efforts that suggest you may
have prejudged the issues including the Browning-Ferris decision, the
Specialty Healthcare decision, and the election rule.
Answer 27. I have had general discussions regarding the standards
for recusal with the NLRB ethics office. If I am confirmed, I will
continue to seek their advice and act appropriately. See also my
answers to #20 and #26 above.
Question 28. On May 5, 2011, Congressmen John Kline and Phil Roe
sent a letter to former Acting General Counsel Lafe Solomon regarding
the NLRB's complaint that Boeing officials publicly acknowledged moving
jobs for the Dreamliner production to South Carolina as a result of
work stoppages in Washington State. The letter questioned the
``appropriateness and evolution'' of the complaint and requested
information including all documents and communications between NLRB
Region 19 office and the NLRB National office about Boeing complaint as
well as an explanation of why NLRB made its decision. Did you
participate in drafting that letter? Do you believe it is appropriate
for Congress to seek these types of communications from the NLRB?
Answer 28. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of the
letter for Chairman Kline and Congressman Roe. The positions taken in
this letter do not necessarily represent my views. Congressional
oversight is implied by the Constitution since Congress possesses ``all
legislative powers.'' The Supreme Court has ruled congressional
oversight must have a ``legislative purpose.'' Chairman Kline and
Congressman Roe requested the information to evaluate the issue and
determine whether legislation was necessary. Ultimately, then-
Congressman Tim Scott introduced the Protecting Jobs From Government
Interference Act. If confirmed, I will confer with NLRB staff and the
other members of the Board on all oversight requests and, as has been
the tradition for previous Boards, endeavor to cooperate regarding
oversight requests.
Question 29. On December 16, 2011, Congressmen John Kline and Phil
Roe sent another letter to former Acting General Counsel Lafe Solomon
regarding the NLRB complaint against Boeing related to transfer of work
from Washington State, which had subsequently been withdrawn by the
complainant. The letter accuses Mr. Solomon of intending to ``apply
government pressure on a private employer in the middle of a labor
dispute,'' and calls the action ``bureaucratic overreach.'' The letter
also requests information including all communication between the NLRB
and outside parties and all communication between the Acting General
Counsel and NLRB Board members related to the case. Did you participate
in drafting that letter? Do you believe it is appropriate for Congress
to seek these types of communications from the NLRB?
Answer 29. As Workforce Policy Counsel of the House Committee on
Education and the Workforce, I participated in the drafting of the
letter for Chairman Kline and Congressman Roe. The positions taken in
this letter do not necessarily represent my views. As stated
previously, congressional oversight is implied by the Constitution
since Congress possesses ``all legislative powers.'' The Supreme Court
has ruled congressional oversight must have a ``legislative purpose.''
Chairman Kline and Congressman Roe requested the information to
evaluate the issue and determine whether legislation was necessary.
Ultimately, then-Congressman Tim Scott introduced the Protecting Jobs
From Government Interference Act. If confirmed, I will confer with NLRB
staff and the other members of the Board on all oversight requests and,
as has been the tradition for previous Boards, endeavor to cooperate
regarding oversight requests.
Question 30. Do you believe it was appropriate for the House
Oversight Committee to subpoena the NLRB Acting General Counsel to
testify at a field hearing at the site of the Boeing facility that was
the subject of the NLRB complaint?
Answer 30. I have no knowledge of the events surrounding the
subpoena of Acting General Counsel Solomon. As such, I have no opinion
as to the appropriateness of the subpoena.
Question 31. What is the appropriate role of an NLRB member in
facilitating oversight by Members of Congress?
Answer 31. Members of Congress should confer with NLRB staff and
the other members of the Board, and, as has been the tradition for
previous Boards, endeavor to cooperate regarding oversight requests.
Question 32. Is it appropriate for a single NLRB member to respond
to an oversight request without consulting counsel's office and working
with the other NLRB members?
Answer 32. Board Members should generally attempt to work together,
and with their professional staff, to appropriately respond to
congressional oversight requests.
Question 33. Will you commit to working with other NLRB members to
fully respond to congressional oversight requests made during your
tenure at NLRB?
Answer 33. If confirmed, I will confer with NLRB staff and the
other members of the Board on all oversight requests and, as has been
the tradition for previous Boards, endeavor to cooperate regarding
oversight requests.
senator casey
Question 1. Do you support the Board's rulemaking authority?
Answer 1. Yes.
Question 2. Who did you speak with to prepare for your July 13,
2017 NLRB confirmation hearing?
Answer 2. NLRB staff; NLRB Chairman Philip Miscimarra; Senate
Health, Education, Labor, and Pension Majority Staff; Former-NLRB
member Charles Cohen; Former-NLRB member Brian Hayes; Former-NLRB
General Counsel Ronald Meisburg; Loren Sweatt, Senior Policy Advisor,
House Committee on Education and the Workforce; and John Martin,
Professional Staff Member, House Committee on Education and the
Workforce.
Question 3. What is your view on the authority of precedent: is the
Board bound by its precedent?
Answer 3. The NLRB should endeavor to maintain stability in labor
law. Among other things, deference to precedent should be based on the
time it has been precedent and the number of times it has been upheld
by subsequent Boards. If, after a thorough analysis of the facts,
legislative text, and legislative history, evaluation of the briefs,
meetings with staff, and discussions with fellow members, a change in
longstanding settled precedent is appropriate, the Board should adhere
to the tradition of requiring three votes in the affirmative.
Question 4. Will you recuse yourself from any cases before the NLRB
that involve President Trump's business--especially the businesses he
visits and promotes as President?
Answer 4. I will confer with the NLRB ethics office to determine
whether recusal is necessary.
Question 5. List and discuss specific examples of how workers have
benefited from the result of your professional actions.
Answer 5. At the direction of the Chairmen of both the House
Committee on Oversight and Government Reform and the Committee on
Education and the Workforce, I conducted oversight of the National
Labor Relations Board. True oversight requires a thorough understanding
of the authorizing statute, in this case the National Labor Relations
Act, and Board and court cases interpreting the Act. This work also
involved considering the interest of employees, unions, and employers
covered by the Act.
In 2011, Inspector General David Berry issued a report entitled
``Case Processing Costs'' which indicated the NLRB regional offices
could achieve greater efficiencies by consolidating offices and
eliminating positions in overstaffed regions by attrition. In 2012, as
workforce policy counsel for the House Education and the Workforce
Committee, I worked extensively with NLRB Inspector General and the
National Labor Relations Board to institute reforms related to the IG's
2011 findings. Ultimately, the NLRB consolidated offices from 32 to 26.
Greater efficiency is essential to the expeditious handling of both
unfair labor practice charges and elections, which, in turn, is
essential to protecting the rights of workers to organize.
senator franken
Question. Would you agree that in general, a company is not allowed
to avoid an existing union contract simply by reincorporating under a
new name, with substantially the same ownership, management, and
assets? Please explain.
Answer. Yes. However, determining whether a company is an alter
ego, single employer, or successor is a very fact-intensive process. If
confirmed, any decision I render will be based on the facts before us,
legislative text, legislative history, Board and court precedent, an
analysis of the party's briefs, staff recommendations, and discussions
with my fellow Board members.
senator whitehouse
Question 1. 1. At your nomination hearing, you committed to
``respect longstanding precedent.'' What is your interpretation of
``longstanding precedent?'' Does the Board's decision in Browning-
Ferris count as ``longstanding precedent''?
Answer 1. I believe longstanding precedent is precedent that has
stood for a substantial period and has been upheld by subsequent
Boards. I would not characterize the Board's Browning-Ferris decision
as longstanding precedent. However, as precedent, if confirmed, I would
afford the Browning-Ferris decision the respect and deference it
deserves.
I have not prejudged the issues presented in Browning-Ferris. If
confirmed, my decision in a case that raises joint employer issues will
be based on the facts before us, legislative text, legislative history,
Board and court precedent, an analysis of the party's briefs, staff
recommendations, and discussions with my fellow Board members.
Question 2. Can you pledge that there will be no preferential
treatment for any businesses owned by President Trump that may have
cases that come before the NLRB?
Answer 2. If confirmed, I pledge I will give no preferential
treatment to any businesses owned by President Trump or any other
individual.
Question 3. Will you fully cooperate with any inquiries from the
GAO, or the NLRB IG?
Answer 3. Yes.
Question 4. The Trump Budget proposed to cut NLRB staff by 18
percent. How would such a funding cut affect the NLRB's work?
Answer 4. I am not familiar with the current disposition of NLRB
funds. However, if confirmed, I look forward to working with the
General Counsel and my fellow Board members to determine the best
distribution of NLRB funds and identify areas where efficiency can be
improved to maximize those funds.
Question 5. NOAA, NASA, the U.S. National Academies of Sciences,
and 31 leading, nonpartisan scientific societies all agree that climate
change is real and humans are major contributors to it. Do you believe
climate change is real? Do you personally believe that human activity
contributes to climate change?
Answer 5. Yes and yes.
Question 6. Will you sign the Trump Ethics pledge? Do you expect to
request any waivers to the Trump Ethics pledge? If so, please explain.
Answer 6. Yes, I will sign the Trump Ethics pledge. I do not plan
to seek a waiver.
Question 7. Have you ever solicited money for a 501(c)(4) political
organizations.? If so, for what organization? From whom? In what
amounts? When were these donations solicited?
Answer 7. No, I have not solicited money for a 501(c)(4) political
organization.
Question 8. For anyone listed above, will you recuse yourself from
any issues involving these individuals or organizations in your role as
Board Member?
Answer 8. N/A.
senator warren
Question 1a. If confirmed, do you believe that it is appropriate
for you to rule on a case to which a company owned by the President who
nominated you is a party?
Answer 1a. Yes.
Question 1b. If so, do you believe that such circumstances create a
perceived, if not real, conflict of interest?
Answer 1b. If confirmed, I will rely on the NLRB ethics staff to
ensure there are no conflicts of interest and I will abide by their
determinations.
Question 1c. If not, will you commit to recusing yourself from any
such case?
Answer 1c. N/A.
Question 2. Please describe your view on the weight of NLRB
precedent as the Board considers a case with relevant precedent.
Answer 2. Among other things, deference to precedent should be
based on the length of time a decision has stood as precedent and the
number of times it has been upheld by subsequent Boards.
Question 3a. Please describe what you believe to be the role of a
member of the Board in accommodating oversight requests by Members of
Congress.
Answer 3a. As has been the tradition for previous Boards, the NLRB
should endeavor to cooperate regarding oversight requests.
Question 3b. Will you commit to responding in full to any requests
from chairs or ranking members of relevant committees, or requests from
Members of Congress on NLRB matters?
Answer 3b. If confirmed, I will confer with NLRB staff and the
other members of the Board on all oversight requests and, as has been
the tradition for previous Boards, endeavor to cooperate regarding
oversight requests.
senator kaine
Question 1a. In hearing cases on unfair labor practices and union
representation, the National Labor Relations Board (NLRB) must enforce
the National Labor Relations Act in light of the prior decisions of the
board and the present-day circumstances of the case at issue. While
precedent is often a guiding force in such determinations, the board
does occasionally overturn or clarify aspects of prior decisions. For
example, in Browning-Ferris, the NLRB reversed a decades-old standard
regarding when two or more businesses should be considered ``joint
employers'' for the same set of employees, modifying the standard to
include ``indirect control'' over the terms and conditions of
employment or the capability for exerting such control. In discussing
the rationale for this decision, the NLRB noted that the previous joint
employer standard was anachronistic and needed to be updated to reflect
new economic conditions and the increased prevalence of contingent
employment relationships.
In your opinion, what factors should be taken into consideration
when deciding whether to uphold, modify, or reverse existing legal
standards?
Answer 1a. The NLRB should endeavor to maintain stability in labor
law. Among other things, deference to precedent should be based on the
length of time a decision has stood as precedent and the number of
times it has been upheld by subsequent Boards. If, after a thorough
analysis of the facts, legislative text, and legislative history,
evaluation of the briefs, meetings with staff, and discussions with
fellow members, a change in long standing settled precedent is
appropriate, the Board should adhere to the tradition of requiring
three votes in the affirmative.
Question 1b. How reactive should the interpretation of existing law
be to emerging trends and changes in the workforce and the employer-
employee relationship?
Answer 1b. If confirmed, I will apply the language of the National
Labor Relations Act and its amendments to matters that come before the
Board. Emerging trends and changes in the workforce and the employer-
employee relationship should be dealt with by Congress through the
legislative process.
Question 2a. Do you feel that interpretations of the NLRA that
could potentially increase the amount of collective bargaining in a
business or industry through allowing for the unionization of subsets
of employees (i.e., ``micro units'') within the larger employee pool or
expanding the scope of the definition of an employer would make
collective bargaining more or less effective for employers and
employees?
Answer 2a. The Specialty Healthcare and Browning-Ferris decisions
are relatively new. It is unclear whether or not they have made
collective bargaining more or less effective for employers and
employees.
I have not prejudged the issues presented in Specialty Healthcare
or Browning-Ferris. If confirmed, my decision in a case that requires
the Board to evaluate the appropriateness of a bargaining unit or
raises joint employer issues will be based on the facts before us,
legislative text, legislative history, Board and court precedent, an
analysis of the party's briefs, staff recommendations, and discussions
with my fellow Board members.
Question 2b. What challenges could arise from more liberal
interpretations of what constitutes an appropriate bargaining unit or
an employer?
Answer 2b. Different interpretations could create confusion or
uncertainty. Segmented workplaces may raise issues for employees,
potentially limiting their opportunities for cross training,
advancement, and additional work hours. Increasing the number of
employers at the bargaining table could complicate the bargaining
process, delaying collective bargaining agreements and increasing the
likelihood of impasse.
Question 2c. In your opinion, would such interpretations of the
NLRA ultimately put employees in stronger or weaker bargaining
positions?
Answer 2c. It would depend on the facts of a particular case.
Question 2d. In your opinion, what effect, if any, would such
interpretations of the NLRA have on franchises, staffing agencies, and
the way that such entities approach business operations?
Answer 2d. I have no personal experience with franchising or
staffing agencies and thus, I am not in a position to comment as to
what effect these decisions would have on business operations.
Again, I have not prejudged the issues presented in Specialty
Healthcare or Browning-Ferris. If confirmed, my decision in a case that
requires the Board to evaluate the appropriateness of a bargaining unit
or raises joint employer issues will be based on the facts before us,
legislative text, legislative history, Board and court precedent, an
analysis of the party's briefs, staff recommendations, and discussions
with my fellow Board members.
Question 3a. In Murphy Oil, the Fifth Circuit ruled that
arbitration agreements containing class waivers are enforceable,
directly contradicting the NLRB's prior decision to invalidate such
agreements in D.R. Horton. In Epic Systems and Ernst & Young, the
Seventh and Ninth Circuits interpreted this question differently and
upheld the NLRB's position in D.R. Horton. The Supreme Court has agreed
to hear all three of these cases and will review this issue in its
2017-18 term.
In your opinion, how far does the NLRA's protection of the right of
employees to engage in ``concerted activity'' extend?
Answer 3a. With few exceptions, the National Labor Relations Act
protects union and non-union employees who engage in concerted activity
for mutual aid or protection.
Question 3b. Could the right to engage in concerted activities be
interpreted to create a substantive right to bring class or collective
actions that trumps the terms of arbitration agreements?
Answer 3b. The courts have split on this question and the Supreme
Court is likely to rule soon. The objectives of the Federal Arbitration
Act must be balanced against those of the National Labor Relations Act.
I have not prejudged the issues presented in Murphy Oil and similar
cases. If confirmed, my decision in such cases will be based on the
facts before us, legislative text, legislative history, Board and court
precedent, an analysis of the party's briefs, staff recommendations,
and discussions with my fellow Board members.
Response by William Emmanuel to Questions of Senator Roberts, Senator
Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator
Warren, and Senator Kaine
senator roberts
Question 1. Mr. Emanuel, as you know, in a 1979 case called NLRB v.
Catholic Bishop of Chicago, the U.S. Supreme Court held that the NLRB
had no jurisdiction over instructors at church-operated schools. In a
2014 case called Pacific Lutheran University, the NLRB chose in a
divided 3-2 opinion to disregard that judicial precedent and instead
adopted a test where the NLRB will assert jurisdiction unless a
religious-affiliated institution in part proves to the NLRB's
satisfaction that it holds out its faculty as performing a ``specific
religious function.''
If confirmed, should a situation arise where a case is brought
before the NLRB, will you give this issue the careful attention it
deserves and be sure to give proper weight to precedent in similar
cases?
Answer 1. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
1Question 2. Mr. Emanuel, in the 2004 decision in Lutheran Heritage
Village-Livonia, the Board has determined work rules and handbook
provisions are unlawful if employees ``would reasonably construe'' them
to prohibit protected activities under Section 7 of the NLRA. Under
this standard, the Board has found dozens of facially neutral
employment policies to be unlawful, raising real questions about how
employers can draft, let alone implement, responsible employment
policies.
If confirmed, should a situation arise where a case is brought
before the NLRB, will you give this issue the careful attention it
deserves?
Answer 2. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
senator murray
Question 1. What, in your view, is the mission of the agency to
which you have been nominated?
Answer 1. To enforce the National Labor Relations Act as enacted by
Congress.
Question 2. Do you believe that the purpose of the National Labor
Relations Act (NLRA), enforced by the National Labor Relations Board
(NLRB or Board), is to encourage and protect workers' rights to
organize and engage in collective bargaining with their employers? If
not, please describe in detail your views on the purpose of the NLRA
and the Board.
Answer 2. As stated in Section 1 of the NLRA, one purpose is
``to eliminate the causes of certain substantial obstructions
to the free flow of commerce and to mitigate and eliminate
these obstructions when they have occurred by encouraging the
practice and procedure of collective bargaining and by
promoting 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.''
In 1947, the NLRA was amended to add several additional purposes:
(1) ``to prescribe the legitimate rights of both employees and
employers in their relations affecting commerce,''
(2) ``to provide orderly and peaceful procedures for preventing the
interference by either with the legitimate rights of the other,''
(3) ``to protect the rights of individual employees in their
relations with labor organizations whose activities affect commerce,''
(4) ``to define and proscribe practices on the part of labor and
management which affect commerce and are inimical to the general
welfare,'' and
(5) ``to protect the rights of the public in connection with labor
disputes affecting commerce.''
Question 3. During your confirmation hearing before the committee,
I asked you whether protecting and promoting workers' right to organize
was the mission of the NLRB. You responded that this was one of the
Board's missions, along with protecting employers, individual employees
and the public. Are all of these interests of equal weight, or are some
of them more important than others?
Answer 3. It is up to Congress to decide the relative importance of
these statutory goals. The Board's responsibility is to enforce the
NLRA as enacted by Congress.
Question 4. During your confirmation hearing before the committee,
you were asked whether your work ever benefited workers or unions. In
response, you stated that you have engaged in collective bargaining and
that workers benefited from this process through higher wages and
benefits. Has an employer you have represented in collective bargaining
ever been charged with a failure to bargain in good faith in violation
of section 8(a)(5) of the National Labor Relations Act? If yes, please
provide additional details.
Answer 4. I have represented employers for many years. It is
possible that such a charge has been filed although I do not recall a
specific case where that has occurred. Of course, a charge is only an
allegation, and not a decision by the Board that a violation of the Act
has occurred.
Question 5. Arthur Mendelson, the founder of your firm Littler
Mendelson once said of your firm's specialization in union avoidance
tactics: ``our clients pay a lot of money . . . if they want
aggressiveness, they are entitled to it.'' If you are confirmed, please
describe the steps that you will take to transition from a practitioner
and senior partner at a firm with this philosophy to a neutral arbiter
as a Member on the NLRB?
Answer 5. Attorneys have a responsibility to zealously represent
their clients' interests. I understand that, if confirmed, my role and
responsibilities as a member of the NLRB will be different than my role
and responsibilities as an advocate in private practice. If I am
confirmed, I will do my best to objectively decide the issues that come
before the Board after considering the facts of each case, the intent
of Congress as expressed in the NLRA, the Supreme Court's precedent,
the Board's precedent, the arguments of the parties, and the views of
the other members of the Board.
Question 6. In a 2012 pod cast, you indicated that you ``come
from'' a perspective of valuing worker protection laws far less than
creating an employer-friendly legal climate. You said,
``My topic is California employment laws from a broad brush
prospective and how the employment laws in California create a
horrible anti-employer climate. It's a terrible climate for job
creation and job retention. Now you know at the outset where I
come from.''
Is this the perspective you will bring to the Board?
Answer 6. Based on my experience, there is a consensus among
employers that many of the State employment laws in California are as I
described them. However, this is not relevant to how I would decide
cases under the NLRA, which is a separate Federal statute that is
unrelated to State employment laws.
If I am confirmed, I will do my best to objectively decide the
issues that come before the Board after considering the facts of each
case, the intent of Congress as expressed in the NLRA, the Supreme
Court's precedent, the Board's precedent, the arguments of the parties,
and the views of the other members of the Board.
Question 7. Please describe your views on the role and importance
of labor unions in today's workplaces and economy.
Answer 7. Unions have certain rights under the NLRA, and I will
enforce that statute faithfully and impartially.
Question 8. What, in your view, would be a scenario in which it
would be appropriate for the NLRB to take action against a company who
is unfairly retaliating against workers based on antiunion hostility?
Answer 8. If a violation of the NLRA by an employer is proven, an
appropriate remedy should be ordered.
Question 9. Do you agree that the workplace and the employer-
employee relationship has changed dramatically in recent years? If so,
can you describe what you see as the key changes affecting workers'
ability to join together and engage in collective bargaining? What are
some of those challenges and how would you go about addressing them?
Answer 9. These questions would be beyond the scope of my
responsibilities as a Board member, if I am confirmed. The
responsibility of Board members is to enforce the NLRA.
Question 10. Do you believe that the designation of workers as
independent contractors rather than employees is a practice that is
increasing?
Answer 10. This would be beyond the scope of my responsibilities as
a Board member if I am confirmed. The responsibility of Board members
is to enforce the NLRA.
Question 11. Please provide your view on when the NLRB should
overturn settled precedents, and what the standard should be in doing
so.
Answer 11. By tradition, the Board does not change precedent
without the votes of three Board members. Otherwise, precedent has not
been treated as binding. My view is that precedent should not be
followed if it is in conflict with the NLRA as enacted by Congress. The
Board's responsibility is to enforce that statute.
Question 12. What specific considerations do you intend to rely
upon in deciding whether to authorize petitions to have a recidivist
violator of the NLRA held in contempt of court for violating a court
order?
Answer 12. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 13. Do you believe that there were instances where the
Board has exceeded its authority during the Obama administration? If
so, when?
Answer 13. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 14. The Board has been the target of criticism for its use
of adjudication rather than rulemaking to establish policy. Under
President Obama, the Board conducted two major notice-and-comment
rulemakings for the first time in decades. If confirmed, do you intend
to continue this practice of making new rules or altering existing
rules through notice-and-comment procedures?
Answer 14. It would be inappropriate for me to comment on this
question. If rulemaking proposals are submitted, I will consider them
at that time.
Question 15. The Administrative Conference of the United States has
recommended that agencies ``should develop processes for systematic
review of existing regulations'' and that they ``should provide
adequate opportunity for public involvement in both the priority-
setting and review processes.'' If confirmed, will you conduct robust,
transparent retrospective reviews prior to any revision or reversal of
existing NLRB law?
Answer 15. I am not familiar with this recommendation, but I will
study the issue, if confirmed.
Question 16. Do you believe that existing doctrines and regulations
should only be changed when there is empirical evidence suggesting that
they are flawed, or is it appropriate to revise rules even if such
revisions are not supported by concrete evidence?
Answer 16. They should be changed if they are contrary to the NLRA.
The Board's responsibility is to enforce that statute.
Question 17. Please provide a list of all cases currently pending
before the NLRB in which Littler Mendelson represents a party. For each
of these cases, please indicate whether you authored, edited, revised,
or reviewed materials related to the case. If yes, please describe the
services you performed and indicate at what stage of the process you
participated.
Answer 17. A list of these cases is attached\1\ to this document. I
did not author, edit, revise or review materials related to any of the
cases.
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\1\ All attachments are being retained in committee files.
Question 18. Please provide a list of all cases decided by the NLRB
and that are currently on appeal in which Littler Mendelson represents
a party. For each of these cases, please indicate if you authored,
edited, revised, or reviewed materials related to the case. If yes,
please describe the services you performed and indicate at what stage
of the process you participated.
Answer 18. A list of these cases is attached to this document. I
did not author, edit, revise or review materials related to any of the
cases.
Question 19. Please provide a list of cases pending before the
NLRB, or on appeal, in which you provided pro bono services including
any case or matter in which you authored, edited, revised, or reviewed
materials related to the case without receiving compensation.
Answer 19. I do not recall providing pro bono services in such a
case.
Question 20. Please confirm that you intend to recuse yourself for
2 years from all cases that come before the NLRB in which Littler
Mendelson represents a party.
Answer 20. That is my understanding of the requirement. I will do
whatever is required by law.
Question 21. Leadpoint Services, a party in the Board's Browning-
Ferris case, is represented by Littler Mendelson. Will you recuse
yourself for the required period from any action by the Board that
involves Leadpoint Services?
Answer 21. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 22. Please provide a list of all writings and all matters
during the past 10 years that involve arbitration agreements or class
action litigation. Please include matters that were not litigated but
on which you advised or otherwise engaged with a client on these
subjects. Do not include client names but provide a number of matters
and a general description of the issue.
Answer 22. The requested articles are attached to this document. I
have represented several employers in cases involving class and
collective action waivers in employment arbitration agreements.
Question 23. In your view are there limits to an employer's ability
to require employees to waive their rights to class actions/group
actions as a condition of employment?
Answer 23. It would be inappropriate for me to comment on this
subject. If I am confirmed, I will do my best to objectively decide the
issues that come before the Board after considering the facts of each
case, the intent of Congress as expressed in the NLRA, the Supreme
Court's precedent, the Board's precedent, the arguments of the parties,
and the views of the other members of the Board.
Question 24. Your writings include at least six articles critical
of the NLRB's decision in D.R. Horton, including one article entitled
``NLRA v. FAA: Why the NLRB Got It Wrong in D.R. Horton.'' Do you
believe that you can be a neutral arbiter on the issue of arbitration
clauses limiting employees' rights in class action cases?
Answer 24. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 25. Given the extent of your personal views, and your
involvement in the issue of arbitration agreements and class action
litigation, do you believe you will be free of an appearance of a
conflict should these issues come before you as a Member of the NLRB?
Answer 25. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 26. As a specific example to the preceding question, you
have expressed views that D.R. Horton and Murphy Oil, currently pending
before the Supreme Court, was wrongly decided. You also filed an amicus
brief in the case on behalf of the National Retail Federation. Will you
recuse yourself from involvement with these cases with regard to action
by the Board?
Answer 26. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 27. Please provide a list of all writings and all matters
during the past 10 years that involve union activity and private
property and/or trespass. Please include matters that were not
litigated but on which you advised or otherwise engaged with a client
on these subjects. Do not include client names but provide a number of
matters and a general description of the issue.
Answer 27. Copies of the articles are attached to this document.
This question involves State trespass laws and it does not involve the
NLRB. I have advised various employers on the absence of private
property rights for employers in California. This is distinct from the
right of unions and employees to engage in union activity on private
property under the NLRA, which has not been involved in the articles
referred to above.
Question 28. Your writings include at least seven articles that
discuss your views that employers should have broad rights to limit
access for union supporters to the employer's private property. In a
2009 article titled ``Union Trespassers Roam Corridors of California
Hospitals--Is a Return to the Rule of Law Possible?'' you wrote,
``The trespass laws are not adequately enforced against labor
unions. Many employers suffer from this unequal protection of
the laws. [. . .] This situation is unfair.''
Given the extent of your personal views, and your involvement as a
client advocate in this issue, do you believe that you will be free of
an appearance of a conflict should these issues come before you as a
member of the NLRB?
Answer 28. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 29. With regard to the Specialty Healthcare case,
involving rules for determining the make-up of bargaining units, when
the case was pending in the U.S. Court of Appeals for the Sixth
Circuit, you authored a brief on behalf of a group of House and Senate
Republicans. Please provide additional details regarding the brief
including whether you were compensated for the work, and if so by whom.
Answer 29. I assisted in writing the brief, but I was not involved
in the client relationship, and I am not aware of the extent of
compensation.
Question 30. What is the appropriate role of an NLRB Member in
facilitating oversight by Members of Congress?
Answer 30. Because I do not have prior experience with responding
to congressional oversight requests, I plan to work with other members
of the Board, as well as the Board's professional staff, to ensure that
the Board responds to oversight requests received from Congress in an
appropriate manner.
Question 31. Is it appropriate for a single NLRB member to respond
to an oversight request without working with counsel's office and
working with the other NLRB Members?
Answer 31. Board members should attempt to work together, and with
the guidance and input of the Board's professional staff, to the
fullest extent possible to respond to oversight requests received from
Congress in an appropriate manner.
Question 32. If confirmed, will you commit to working with other
NLRB Members to fully respond to congressional oversight requests made
during your tenure at NLRB?
Answer 32. If confirmed, I will attempt to work together with other
Board members and the Board's professional staff to the fullest extent
possible to respond to oversight requests received from Congress in an
appropriate manner.
Question 33. Please provide copies of your contribution to the
following publications:
California Employment Law, a Guide to California Laws
Regulating Employment in the Private Sector, Merchants and
Manufacturers Association, 1990.
California Employment Law, a Guide to California Laws
Regulating Employment in the Private Sector, 2d edition, Merchants and
Manufacturers Association, 1992.
California Employment Law, a Guide to California Laws
Regulating Employment in the Private Sector, 3d edition, The Employers
Group, 1997.
Model Affirmative Action Program for Hospitals, California
Hospital Association, 1973, Supreme Court Bans the Use of Sex-Based
Mortality Tables in Employee Fringe Benefit Plans, Corporate Law
Departments Section Newsletter, Los Angeles County Bar Association,
December 1983.
The first three items above are three editions of a book written
several decades ago, which consist of five volumes and would be very
difficult to copy. The last edition of the book was published in 1997.
Copies of the other items requested above are attached to this
document.
senator casey
Question 1. Do you support the Board's rulemaking authority?
Answer 1. It is my understanding that the Board has the authority
to adopt rules under the NLRA.
Question 2. Who did you speak with to prepare for your July 13,
2017 NLRB confirmation hearing?
Answer 2. The NLRB's ethics office and congressional office staff,
the HELP committee's majority staff, and attorneys.
Question 3. What is your view on the authority of precedent: is the
Board bound by its precedent?
Answer 3. By tradition, the Board does not change precedent without
the votes of at least three members. Otherwise, precedent has not been
viewed as binding.
Question 4. Will you recuse yourself from any cases before the NLRB
that involve President Trump's business--especially the businesses he
visits and promotes as President?
Answer 4. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 5. List and discuss specific examples of how workers have
benefited from the result of your professional actions.
Answer 5. My law firm and I advise employers on how to comply with
the NLRA and numerous other complex employment laws. We also train
managers on the importance of respecting employees and avoiding
harassment. We conduct audits of employment practices to ensure
compliance. We provide advice on frequent changes in the various
employment laws to ensure compliance. We advise on internal complaint
systems so employees will have a voice in the workplace. Employees
benefit from all of these actions and others.
senator franken
Question 1. Please list all cases you personally handled, your firm
handled or are currently handling involving the D.R. Horton issue.
Please include the name of each case, forum, parties involved, and
disposition.
Answer 1. My firm represents amicus parties in the Murphy Oil and
related cases on this issue now pending before the U.S. Supreme Court,
and I have had a minor role in that representation. I have also handled
cases involving this issue for CBRE, Inc., Genesis Heathcare LLC,
SolarCity, MasTec, Inc., and Handy Technologies, Inc.. All of these
cases are still pending before the Board at various levels. I also
represented Securitas Security Services USA, Inc., in a case on appeal
at the Fifth Circuit in which the employer prevailed. In addition, I
worked on an amicus brief filed with the Fifth Circuit in the D.R.
Horton case, in which the employer prevailed. I am not aware of any
other cases currently being handled by my law firm.
Question 2. Please provide any public comments you have made, and
copies of all articles or publications you or your firm were involved
with on the D.R. Horton/Murphy Oil issue.
Answer 2. Copies of the articles are attached to this document.
Question 3. Based on some of your writings on the D.R. Horton and
Murphy Oil case it appears like you believe the case have been wrongly
decided. Will you recuse yourself from consideration of any case
raising the D.R. Horton/Murphy Oil issue? Please explain.
Answer 3. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 4. Are there limits to an employer's ability to require
employees to waive their rights to class actions/group actions as a
condition of employment? Please elaborate.
Answer 4. It would be inappropriate for me to comment on this
subject. If I am confirmed, I will do my best to objectively decide the
issues that come before the Board after considering the facts of each
case, the intent of Congress as expressed in the NLRA, the Supreme
Court's precedent, the Board's precedent, the arguments of the parties,
and the views of the other members of the Board.
Question 5. Since you have not already agreed to recuse yourself
from any D.R. Horton/Murphy Oil issue-related cases, please identify
any case in which you think you should need to recuse yourself and
explain in detail the basis for your decision.
Answer 5. f recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 6. Would you agree that in general, a company is not
allowed to avoid an existing union contract simply by reincorporating
under a new name, with substantially the same ownership, management,
and assets? Please explain.
Answer 6. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the NLRA, the Supreme
Court's precedent, the Board's precedent, the arguments of the parties,
and the views of the other members of the Board.
senator whitehouse
Question 1. During your nomination hearing, you agreed that you
would recuse yourself from any cases involving law firm, but that you
``do not believe that recusal would apply to issues.'' This is
concerning as you have previously stated your opinions on several
issues that are directly related to this position. In particular, you
submitted an amicus briefs in the pending Supreme Court case, Murphy
Oil, related to binding arbitration clauses that prohibit class action
by employees and whether they are a violation of the NLRA. Will you
recuse yourself on issues on which have already publicly taken a side?
Answer 1. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 2. You have been a management-side attorney for your
entire legal career. What specific actions will you take to ensure that
you do not bring a bias toward employers to your role at the NLRB?
Answer 2. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 3. Your nomination was met with support by the National
Right to Work Committee and its President, Mark Mix, said in a June 28
fundraising e-mail that your nomination would, ``effectively end Big
Labor's stranglehold over the NLRB.'' The NRLA's preamble states the
intent is to, ``encourage collective bargaining'' and, as a member of
the NLRB, your responsibility is to protect workers. Will you commit to
promoting the interests of workers and encouraging the right to
collective bargaining as outlined in statute?
Answer 3. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 4. Can you pledge that there will be no preferential
treatment for any businesses owned by President Trump that may have
cases that come before the NLRB?
Answer 4. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 5. Will you fully cooperate with any inquiries from the
GAO, or the NLRB IG?
Answer 5. Although I have no experience responding to inquiries
received from the GAO or the Board's Inspector General, I will work
with other Board members, as well as the Board's professional staff, to
ensure that any such inquiries are responded to in an appropriate
manner.
Question 6. The Trump Budget proposed to cut NLRB staff by 18
percent. How would such a funding cut affect the NLRB's work?
Answer 6. As I am not currently a member of the Board, I do not
have a sufficient basis to provide an answer to this question.
Question 7. NOAA, NASA, the U.S. National Academies of Sciences,
and 31 leading, nonpartisan scientific societies all agree that climate
change is real and humans are major contributors to it. Do you believe
climate change is real? Do you personally believe that human activity
contributes to climate change?
Answer 7. Climate Change is beyond the scope of the
responsibilities that I would assume, if I were confirmed to be a
member of the Board.
Question 8. Will you sign the Trump Ethics pledge? Do you expect to
request any waivers to the Trump Ethics pledge? If so, what would they
be for?
Answer 8. I will sign the Ethics pledge, and follow all appropriate
procedures.
Question 9. Have you ever solicited money for a 501(c)(4) political
organizations? If so, for what organization? From whom? In what
amounts? When were these donations solicited?
Answer 9. Not to my knowledge.
Question 10. For anyone listed above, will you recuse yourself from
any issues involving these individuals or organizations in your role as
Board Member?
Answer 10. I do not understand this question, but if questions
arise regarding recusal, I will request the advice of the Board's
ethics office.
senator warren
Question 1a. As you know, ethics regulations require that you
recuse yourself from cases that involve a former client. Your law
firm's biography notes that your former clients include trade
associations, and you have written briefs on behalf of trade
associations including the National Association of Manufacturers and
the National Retail Federation.
Have you received compensation from any trade associations over the
past 10 years?
Answer 1a. I have not received any compensation directly. In some
cases, fees were paid to my law firm.
Question 1b. If so, please list them and the total amount of
compensation you received from each of them, and describe the terms of
your agreements with them.
Answer 1b. I have not received any compensation directly. In some
cases, fees were paid to my law firm. I am not aware of the terms of
the firm's agreements with any of the current clients in this category.
Question 1c. Regardless of its legality, do you believe that it
would be appropriate for you to hear and rule on a case in which a
member of a trade association that you have represented is a party?
Answer 1c. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 1d. If so, why do you believe that it is inappropriate for
you to rule on a case in which a former client is a party, but
appropriate for you to rule on a case in which a member of a former
client is a party?
Answer 1d. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 1e. If not, will you commit to recusing yourself from
cases in which a party is a member of an association that you have
represented?
Answer 1e. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 2a. The financial disclosure report that you submitted to
the Office of Government Ethics lists 49 companies that qualify as
``sources of compensation exceeding $5,000 in a year.''
Answer 2a. I did not receive any compensation directly from a
client. The information in the OGE report was provided by my law firm
at the request of the NLRB ethics office, which prepared the report. I
understand the information in the report includes fees paid by clients
to the law firm that were attributable to work performed by me. I
further understand that this was consistent with the interpretation of
the question on the OGE form by the NLRB's ethics office.
Question 2b. Are there additional clients for whom you worked for
which you received compensation of less than $5,000 annually?
Answer 2b. I have provided the financial information required by
law. Please see my 278 filing.
Question 2c. If so, please list these clients, and the total amount
of compensation you have received from each of them.
Answer 2c. I have provided the financial information required by
law. Please see my 278 filing.
Question 2d. According to OGE, Part 4 of your financial disclosure
covers only ``the preceding 2 calendar years and the current calendar
year up to the date of filing.'' Please provide a list of all sources
of compensation for the past 5 years that are not listed in Part 4 of
your financial disclosure.
Answer 2d. I have provided the financial information required by
law. Please see my 278 filing.
Question 3a. If confirmed, do you believe that it is appropriate
for you to rule on a case to which a company owned by the President who
nominated you is a party?
Answer 3a. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 3b. If so, do you believe that such circumstances create
a perceived, if not real, conflict of interest?
Answer 3b. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 3c. If not, will you commit to recusing yourself from any
such case?
Answer 3c. If recusal questions arise with regard to any particular
matter, I will request the advice of the Board's ethics office.
Question 4. Please describe your view on the weight of NLRB
precedent as the Board considers a case with relevant precedent.
Answer 4. By tradition, the Board does not change precedent without
the votes of three Board members. Otherwise, precedent has not been
treated as binding. My view is that precedent should not be followed if
it is in conflict with the NLRA as enacted by Congress. The Board's
responsibility is to enforce that statute.
Question 5a. Please describe what you believe to be the role of a
member of the Board in accommodating oversight requests by Members of
Congress.
Answer 5a. As noted above, Board members should attempt to work
together, and with the guidance and input of the Board's professional
staff, to the fullest extent possible to respond to oversight requests
received from Congress in an appropriate manner.
Question 5b. Will you commit to responding in full to any requests
from chairs or ranking members of relevant committees, or requests from
Members of Congress on NLRB matters?
Answer 5b. If confirmed, I will attempt to work together with other
Board members and the Board's professional staff to the fullest extent
possible to respond to oversight requests received from Congress in an
appropriate manner.
senator kaine
Question 1a. In hearing cases on unfair labor practices and union
representation, the National Labor Relations Board (NLRB) must enforce
the National Labor Relations Act in light of the prior decisions of the
board and the present-day circumstances of the case at issue. While
precedent is often a guiding force in such determinations, the board
does occasionally overturn or clarify aspects of prior decisions. For
example, in Browning-Ferris, the NLRB reversed a decades-old standard
regarding when two or more businesses should be considered ``joint
employers'' for the same set of employees, modifying the standard to
include ``indirect control'' over the terms and conditions of
employment or the capability for exerting such control. In discussing
the rationale for this decision, the NLRB noted that the previous joint
employer standard was anachronistic and needed to be updated to reflect
new economic conditions and the increased prevalence of contingent
employment relationships.
In your opinion, what factors should be taken into consideration
when deciding whether to uphold, modify, or reverse existing legal
standards?
Answer 1a. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 1b. How reactive should the interpretation of existing law
be to emerging trends and changes in the workforce and the employer-
employee relationship?
Answer 1b. If I am confirmed, I will do my best to objectively
decide the issues that come before the Board after considering the
facts of each case, the intent of Congress as expressed in the NLRA,
the Supreme Court's precedent, the Board's precedent, the arguments of
the parties, and the views of the other members of the Board.
Question 2a. Do you feel that interpretations of the NLRA that
could potentially increase the amount of collective bargaining in a
business or industry through allowing for the unionization of subsets
of employees (i.e., ``micro units'') within the larger employee pool or
expanding the scope of the definition of an employer would make
collective bargaining more or less effective for employers and
employees?
Answer 2a. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
Question 2b. What challenges could arise from more liberal
interpretations of what constitutes an appropriate bargaining unit or
an employer?
Answer 2b. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
Question 2c. In your opinion, would such interpretations of the
NLRA ultimately put employees in stronger or weaker bargaining
positions?
Answer 2c, It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
Question 2d. In your opinion, what effect, if any, would such
interpretations of the NLRA have on franchises, staffing agencies, and
the way that such entities approach business operations?
Answer 2d. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
Question 3a. In Murphy Oil, the Fifth Circuit ruled that
arbitration agreements containing class waivers are enforceable,
directly contradicting the NLRB's prior decision to invalidate such
agreements in D.R. Horton. In Epic Systems and Ernst & Young, the
Seventh and Ninth Circuits interpreted this question differently and
upheld the NLRB's position in D.R. Horton. The Supreme Court has agreed
to hear all three of these cases and will review this issue in its
2017-18 term.
In your opinion, how far does the NLRA's protection of the right of
employees to engage in ``concerted activity'' extend?
Answer 3a. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
Question 3b. Could the right to engage in concerted activities be
interpreted to create a substantive right to bring class or collective
actions that trumps the terms of arbitration agreements?
Answer 3b. It would be inappropriate for me to comment on this
question. If I am confirmed, I will do my best to objectively decide
the issues that come before the Board after considering the facts of
each case, the intent of Congress as expressed in the statute as
written, the Supreme Court's precedent, the Board's precedent, the
arguments of the parties, and the views of the other members of the
Board.
[Whereupon, at 11:32 a.m., the hearing was adjourned.]
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