[Senate Hearing 113-788]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 113-788
 
       PENDING NOMINATIONS TO THE NATIONAL LABOR RELATIONS BOARD

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                                   ON

  EXAMINING THE NOMINATIONS OF MARK GASTON PEARCE, OF NEW YORK, TO BE 
    CHAIRMAN, WHO WAS INTRODUCED BY SENATOR SCHUMER, AND RICHARD F. 
   GRIFFIN, JR., OF THE DISTRICT OF COLUMBIA, WHO WAS INTRODUCED BY 
  SENATOR WARREN, SHARON BLOCK, OF THE DISTRICT OF COLUMBIA, WHO WAS 
 INTRODUCED BY SENATOR MURPHY, HARRY I. JOHNSON III, OF VIRGINIA, WHO 
   WAS INTRODUCED BY FORMER SENATOR BYRON DORGAN, AND PHILIP ANDREW 
 MISCIMARRA, OF ILLINOIS, WHO WAS INTRODUCED BY SENATOR ALEXANDER, ALL 
       TO BE A MEMBER, ALL OF THE NATIONAL LABOR RELATIONS BOARD

                               __________

                              MAY 16, 2013

                               __________

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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                       TOM HARKIN, Iowa, Chairman

BARBARA A. MIKULSKI, Maryland            LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington                 MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont             RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania       JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina             RAND PAUL, Kentucky
AL FRANKEN, Minnesota                    ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado              PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island         LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin                 MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut       TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts

                               
                                       

                    Pamela J. Smith, Staff Director

        Lauren McFerran, Deputy Staff Director and Chief Counsel

               David P. Cleary, Republican Staff Director

                                  (ii)

  




                                CONTENTS

                               __________

                               STATEMENTS

                         THURSDAY, MAY 16, 2013

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, opening statement...................................     4
    Prepared statement...........................................     6
Murphy, Hon. Christopher S., a U.S. Senator from the State of 
  Connecticut....................................................     9
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................     9
Murray, Hon. Patty, a U.S. Senator from the State of Washington..    29
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    31
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    33
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.    35
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin..    37
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont..    38
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    43

                             Guest Senators

Dorgan, Hon. Byron, a former U.S. Senator from the State of North 
  Dakota.........................................................    10
Schumer, Hon. Charles, a U.S. Senator from the State of New York.    11

                               Witnesses

Pearce, Mark Gaston, Chairman, National Labor Relations Board, 
  Buffalo, NY....................................................    12
    Prepared statement...........................................    13
Griffin, Richard F., Jr., Member, National Labor Relations Board, 
  Washington, DC.................................................    14
    Prepared statement...........................................    16
Block, Sharon, Member, National Labor Relations Board, 
  Washington, DC.................................................    17
    Prepared statement...........................................    19
Johnson, Harry I., III, Member-Designate, National Labor 
  Relations Board, Pacific Palisades, CA.........................    20
    Prepared statement...........................................    22
Miscimarra, Philip Andrew, B.A., MBA, J.D., Member-Designate, 
  National Labor Relations Board, Hinsdale, IL...................    23
    Prepared statement...........................................    24

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    The New York Times, Critics Say Labor Board Favors Business, 
      article....................................................    46
    Union and Management Attorneys, letter.......................    47
    American Association of University Women (AAUW), letter......    48

                                 (iii)

  


       PENDING NOMINATIONS TO THE NATIONAL LABOR RELATIONS BOARD

                              ----------                              


                         THURSDAY, MAY 16, 2013

                                       U.S. Senate,
        Committee on Health, Education, Labor and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m., in 
room 430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Murray, Sanders, Casey, Franken, 
Baldwin, Murphy, Warren, Alexander, Isakson, and Scott.
    Also present: Senators Schumer and Dorgan.

                  Opening Statement of Senator Harkin

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    The hearing this morning is on the nominations for the 
National Labor Relations Board.
    Over 75 years ago, Congress enacted the National Labor 
Relations Act, guaranteeing American workers the right to form 
and join a union and bargain for a better life. For both union 
and non-union workers alike, the Act provides essential 
protections. It gives workers a voice, and the ability to join 
together and speak up for fair wages and good benefits and safe 
working conditions. These rights are one of the pillars of our 
middle class, ensuring that people who do the real work in this 
country see the benefits when our economy grows.
    The National Labor Relations Board is the guardian of these 
fundamental rights. I think what few people understand or 
realize is that workers themselves cannot enforce the National 
Labor Relations Act. The Board is the only place workers can go 
if they have been treated unfairly and denied the basic 
protections that the law provides. Thus, the Board plays a 
critical role in vindicating workers' rights. In the past 10 
years, the NLRB has secured opportunities of reinstatement for 
22,544 employees who were unfairly fired. It has also recovered 
more than $1 billion on behalf of workers whose rights were 
violated.
    The Board is just as essential for our Nation's employers. 
If an employer, for example, is the victim of a wildcat strike, 
or is in negotiations with the union and can't get the union to 
bargain in good faith, the Board is their only recourse. And 
the NLRB has helped numerous businesses resolve disputes 
efficiently.
    Because this agency is absolutely critical to our economy 
and our country and our middle class, it is deeply 
disappointing to see what has happened to the Board in recent 
years, including the relentless political attacks endured by 
the dedicated public servants who work on the Board. To put it 
plainly, there are clearly many elected officials who are 
actively trying to shut the NLRB down.
    In 2011, when the agency needed new Board members to 
satisfy its quorum requirements, instead of working together to 
confirm a bipartisan package of well-qualified nominees, some 
prominent Senators publicly announced their intention to block 
any nomination to the NLRB. In a well-publicized statement, one 
of my colleagues on the other side of the aisle said he would 
filibuster even if this caused the agency to cease functioning 
altogether. And to quote him, he said, ``The NLRB as inoperable 
could be considered progress.''
    It didn't used to be this way. We used to understand and 
acknowledge that members of the Board had differing views, 
different ideological perspectives, but all of us agreed that 
the Board itself should function for the good of our country 
and our economy. But in recent years, that shared understanding 
has broken down. The Board has not had five Senate-confirmed 
members in a decade, in a decade. In my view, that speaks a lot 
more perhaps to our dysfunction here in the Senate than 
anything the Board itself has done.
    But what most concerns me is how this political game 
playing is impacting the everyday lives of working people 
across America. Whether it is the relentless filibustering of 
nominees that prevents the Board from having a quorum, or 
ceaseless litigation that delays and denies justice, these 
attacks on the Board have real consequences for real people.
    The litigation surrounding President Obama's recess 
appointments, for example, has impacted countless working 
Americans: real people, people like Marcus Hedger, a former 
printing and pressman from Lake Villa, IL. Marcus worked for a 
printing company for 9 years, serving as union steward for most 
of his time there. In 2010, when the company was about to be 
sold, the owners cracked down hard on Marcus for his role in 
collective bargaining negotiations. Marcus was fired.
    A unanimous, bipartisan panel of the NLRB determined in 
September 2012 that Marcus was unlawfully fired and ordered 
that he be reinstated with back pay. But the company appealed 
that decision to the U.S. Court of Appeals for the D.C. 
Circuit, and in January that case was delayed due to the recess 
appointment litigation, leaving Marcus without any recourse. 
Almost 3 years since his claim was filed with the Board, Marcus 
is still looking for justice. He doesn't have his job back, and 
the only job that he could find pays only one-third as much as 
his previous one. Because of this financial hardship, Marcus 
just lost his home to foreclosure. Real-life consequences.
    And this wasn't just any home, this was his dream home, the 
home he and his family had scrimped and saved for for their 
entire lives. It was his slice of the American Dream that was 
lost through no fault of his own, because the system is broken 
and couldn't protect his rights.
    Now, let's be clear about why Marcus was fired. He was 
fired for participating in collective bargaining, a process 
that our Nation's laws protect and encourage. I have often 
quoted from the National Labor Relations Act on this point, and 
I will do so again. The Act states--this is the law,

          ``It is declared to be the policy of the United 
        States to eliminate the causes of certain substantial 
        obstructions to the free flow of commerce and to 
        mitigate and eliminate these obstructions when they 
        have occurred by encouraging the practice and procedure 
        of collective bargaining, and by protecting the 
        exercise by workers of full freedom of association, 
        self-organization, and designation of representatives 
        of their own choosing for the purpose of negotiating 
        the terms and conditions of their employment or other 
        mutual aid or protection.''

    So the National Labor Relations Act doesn't just set up the 
parameters for collective bargaining. It actually encourages 
the practice and procedure of collective bargaining. And I am 
proud to be a citizen of a country that encourages collective 
bargaining. If my colleagues don't share this view, then they 
should be honest about their intentions and simply try to 
repeal the National Labor Relations Act. I think that would be 
much more appropriate than constantly using procedural threats 
or political obstructionism and budget game-playing to try to 
destroy the agency's ability to do the job that it is required 
by law to do.
    Three people sitting before us today have been dedicated, 
and even courageous, in fulfilling the duties they have been 
sworn to carry out as members of the Board, despite constant 
political interference and even personal attacks. The other two 
nominees before us today have commendably accepted the 
President's call to serve and are eager to join the Board, even 
in these tumultuous times. These are five incredibly well-
qualified candidates for the National Labor Relations Board. 
They come from diverse backgrounds, but all are deeply steeped 
in labor or employment law and would bring rich experiences to 
the Board. It cannot be disputed that this is a highly skilled, 
competent, and experienced panel of labor or employment law 
experts. They deserve to be confirmed. They should be 
confirmed.
    A letter I recently received from 32 management-side and 15 
union-side labor attorneys from across the country made this 
point better than I can. It urged the swift confirmation of the 
full package of five nominees and said,

          ``While we differ in our views over the decisions and 
        actions of the NLRB over the years, we do agree that 
        our clients' interests are best served by the stability 
        and certainty that a full, confirmed Board will bring 
        to the field of labor-management relations.''

I couldn't agree more.
    I was heartened to hear that my good friend and Ranking 
Member, Senator Alexander, stated on the floor of the Senate a 
few months ago that he wants to confirm a full package of Board 
nominees. I would like to work with Senator Alexander to get 
that job done so we have a five-member Board.
    I hope that we can put this political game playing behind 
us, have a good hearing, ask our questions, get things on the 
record, and confirm a full package of five eminently qualified 
individuals to be members of the National Labor Relations 
Board.
    With that, I recognize Senator Alexander.

                 Opening Statement of Senator Alexander

    Senator Alexander. Thank you very much, Mr. Chairman. I 
look forward to this hearing with the five nominees, and I 
thank them for their willingness to serve.
    It is important to have a fully confirmed National Labor 
Relations Board. This agency is charged, as the Chairman said, 
with creating stability for employees, employers and unions to 
allow America's businesses to focus on succeeding and growing. 
But there is a troubling lack of respect for the constitutional 
separation of powers and for the Senate's role of advice and 
consent that is standing in the way of this confirmation 
process.
    The Constitution laid out a balance of powers that has 
worked pretty well and pretty much as the Founders intended for 
227 years. Article I of the Constitution made us different from 
most governments at the time. Most of our Founders, not all of 
them but most of them did not want a king, and to ensure that 
we did not have a king, our country had a Congress, and clear 
powers were granted to Congress which could not be abrogated. 
The clearest curb on the power of a monarch or the power of an 
executive in our Constitution is Article 1 of the Constitution 
creating the Congress and the Bill of Rights.
    Article II enumerates the executive powers of the 
presidency, and it recognized a very practical reality of the 
day, long congressional recesses. One of the powers reserved to 
the Senate is probably the best-known authority of this body. 
That is Article II, Section 2, requiring the Senate to consent 
to the appointment of Ambassadors, public ministers, consuls 
and other officers. We do that for about 1,000 of the 
President's nominees, and in each of the last two congresses we 
have worked in a bipartisan way to make it easier for the 
President to make the nominations and for the Senate to 
consider them in a reasonable period of time.
    The Founders anticipated there would be periods of time 
when the Senate and the House would not be in session, and the 
Senate would not be able to consent to such appointments. So 
they put into the Constitution a provision saying that during 
these times, the President could make a recess appointment for 
``vacancies that may happen during the recess of the Senate.'' 
At the beginning of this Nation, this was important. In those 
days, there were long, extended periods of time between the 
annual sessions of Congress. Members of Congress were spread 
all over the country. Senator Sam Houston of Texas had to go 
from Texas to New Orleans, get on a boat, come up the 
Mississippi River, ride a horse, take a stagecoach, finally get 
here and take the same route home. So it was envisioned that 
during the times Senators were gone, the President could make 
recess appointments.
    Some may wonder why we still have recess appointments with 
modern communications and modern travel, but it is still there 
in the Constitution. But President Obama, on January 4, 2012, 
acted as though it weren't there at all. The President made 
recess appointments while the Senate was not in recess. This is 
unprecedented. It had never been done. It was done during the 
time when the Senate majority leader, Senator Reid, had 
proposed a resolution which the Senate unanimously adopted that 
said the Senate was in session and that it would convene every 
3 days.
    Now, over time, many Presidents have expanded their use of 
the recess appointment power, yet no one has gone as far as 
President Obama did on that day. The Senate must decide when we 
are in session, not the President. If it were otherwise, there 
would be no point to having the advice and consent power in the 
Constitution at all. The President could appoint officials 
anytime he wished. The Senate could return from lunch and find 
there is a new Supreme Court Justice.
    On January 4, the President made three appointments to the 
National Labor Relations Board. Two are still there. They have 
told me--I have met with them and had good meetings--that they 
felt obligated to stay in their positions, those two members.
    After President Obama took this action, the so-called 
recess appointees began deciding cases, and one of those cases 
was appealed. The company appealed because it argued that the 
Board didn't have a required quorum of three valid, 
constitutionally appointed members. A three-judge panel of the 
Court of Appeals agreed. It unanimously said these recess 
appointments violated Article 2, Section 2 of the Constitution, 
that the President had made recess appointments when there was 
no recess. That court holds a special place in the American 
judicial system because all NLRB decisions may be appealed 
there, and many are.
    Therefore, all cases in which these nominees have 
participated or will participate may also be vacated if their 
votes provided the Board with the necessary quorum.
    Since the so-called recess appointees were sworn in, the 
NLRB has issued 910 published and unpublished decisions; 206 of 
those came after the Noel Canning case, which is the case at 
subject. All of these can be appealed to the D.C. Circuit and 
vacated.
    I have met with each of the nominees before us today. I do 
not question their qualifications. They all have distinguished 
backgrounds. I know that Ms. Block and Mr. Griffin feel 
obligated to stay in those positions after a preeminent court 
ruled that they were invalidly appointed because of the oath 
they took. I appreciate their candor and their dedication to 
public service. My problem is not with their qualifications. My 
problem is that they continue to decide cases after the Federal 
appellate court unanimously decided they were 
unconstitutionally appointed.
    Not only has the President shown a lack of respect for the 
constitutional role of the separation of powers and the curb on 
the executive branch that Article I provides, but I believe 
these two individuals have as well. This is part of a 
disturbing pattern of end runs around the Congress, whether it 
is appointing more tsars than the Romanoffs had or executive 
orders that stretch the limit of executive authority, or using 
waiver authority to create, in effect, a national school board, 
or the Secretary of Health raising money privately for private 
organizations to do what Congress has refused to do, or whether 
it is recess appointments when there is no recess.
    It is important for our country's liberties to protect the 
separation of powers. Therefore, I cannot support the 
nominations of these two. I also believe their decision to stay 
on creates enormous opportunity for confusion and waste. I 
agree, we want certainty. The best way to have certainty is to 
have five confirmed members of the Board. The President could 
nominate two equally qualified members who did not sit on the 
NLRB when a court had decided they were unconstitutionally 
there.
    I don't have the same problem with the three other nominees 
here today, Chairman Pearce, Mr. Miscimarra, and Harry Johnson. 
They have been nominated through the regular process, and the 
best way for the President to ensure certainty is to nominate 
two well-qualified individuals who did not continue to decide 
cases after the court said they were unconstitutionally 
appointed. If he does, I will pledge to work with the Chairman 
for their speedy confirmation.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Alexander follows:]

                Prepared Statement of Senator Alexander

    Thank you for holding a hearing on this slate of nominees 
to the National Labor Relations Board.
    It is important to have a fully confirmed NLRB. This agency 
is charged with creating stability for employees, employers and 
unions to allow American businesses to focus on succeeding and 
growing.
    But there is a troubling lack of respect for the 
Constitution, and for Congress's role of advice and consent, 
that is standing in the way of this confirmation process.
    The Constitution laid out a balance of powers that has 
worked well, and pretty much as the founders intended, for 227 
years.
    Article I of the Constitution made us different from most 
other governments of the time. It ensured that we would have no 
king by granting clear power to Congress which could not be 
abrogated.
    Article II of the Constitution enumerates the executive 
powers of the Presidency, and it recognized a very practical 
reality of the day--long congressional recesses.
    One of the powers reserved for the Senate is probably the 
best known authority of this body. That is the advice and 
consent clause of Article II, section 2, requiring the Senate 
to consent to the appointment of Ambassadors, public ministers, 
counsels and other officers. 
    The Founders anticipated that there would be periods of 
time when the Senate and the House would not be in session and 
the Senate would not be able to consent to such appointments.
    They put into the Constitution a provision saying that 
during those times, the President may make a recess appointment 
for ``vacancies that may happen during the recess of the 
Senate.''
    At the beginning of this Nation, this was important. In 
those days, there were long, extended periods between the 
annual sessions of the Congress, when the Members of Congress 
were spread all over the country. 
    Senator Sam Houston of Texas, had to go from Texas to New 
Orleans, get on a boat, come up the Mississippi River, and then 
ride a horse and take a stagecoach to get here. It took him 
weeks--same to go home.
    With today's modern transportation systems, the practical 
reality the founders were concerned about is less of a concern.
    In fact, although some may wonder why we still have a 
recess appointment clause, the fact is that it's still there.
    But President Obama on January 4, 2012, acted as though it 
wasn't there at all.
    This is the first time any President has made a recess 
appointment while the Senate wasn't in recess. It was 
unprecedented. The Senate had unanimously adopted a resolution 
that it was in session and would convene every 3 days.
    Over time, Presidents have expanded their use of the recess 
appointment power more and more, yet no one has gone as far as 
President Obama.
    The Senate must decide when we are in session, not the 
President. If it were otherwise, there would be no point to 
having an advice and consent power in the Constitution at all.
    A President could simply appoint any officials at any time. 
The Senate could return from lunch to find there's a new 
Supreme Court justice.
    On January 4, the President made three appointments to the 
National Labor Relations Board. Two are still there.
    After President Obama took this action, the so-called 
recess appointees began deciding cases. The Noel Canning 
company is a small bottling firm in Washington State which lost 
a case before the NLRB. This company appealed that decision 
based on the fact that the Board did not have the required 
quorum of three valid, constitutionally appointed members at 
the time that the decision was issued.
    This January, a three-judge panel of the District of 
Columbia's U.S. Circuit Court of Appeals agreed. It ruled 
unanimously that these ``recess appointments'' violated Article 
II, Section 2 of the U.S. Constitution. They ruled that the 
President had made a recess appointment when the Senate was in 
session.
    This court holds a special place in the American judicial 
system because all NLRB decisions may be appealed here, no 
matter where the action was initiated. So, it gets a large 
percentage of those cases.
    Therefore, all the cases in which these nominees have 
participated or will participate may also be vacated, if their 
votes provided the Board with the necessary quorum.
    Since this important court ruled that their decisions would 
not be upheld, the invalid recess appointees have continued to 
decide cases.
    Since the so-called recess appointees were sworn in, the 
NLRB has issued 910 published and unpublished decisions--206 of 
those came after the Noel Canning decision. All of these can be 
appealed to the DC Circuit and vacated.
    Let me be clear, I have met with each of the nominees 
before us today and they are all fine people. I do not question 
their qualifications.
    I know that Sharon Block and Richard Griffin feel obligated 
to stay in their positions even after a preeminent court ruled 
that they were invalid because of the oath they took when they 
were sworn in at the NLRB. I appreciate their candor and 
dedication to public service.
    The problem here is not the qualifications of these two 
nominees. The problem is that they continued to decide cases 
after the Federal appellate court unanimously decided they were 
unconstitutionally appointed.
    Not only has the President shown a lack of respect for the 
Constitutional role of the separation of powers and the curb on 
executive power that Article I provides, but I believe that 
these two individuals have as well.
    Therefore, I cannot support their nominations.
    In addition, I believe their decision to stay on creates 
enormous opportunity for confusion and waste. If the Supreme 
Court agrees with the unanimous Federal court, this creates 
that many more cases that will be vacated and that much more 
uncertainty.
    I do agree that the best way to create certainty is to have 
five more confirmed members of the Board. And the best way for 
that to happen is for the President to nominate five well-
qualified persons and to do it in a way that follows his 
prerogatives under the Constitution.
    I don't have the same problem with the other three nominees 
here today, Chairman Pearce and Phil Miscimarra and Harry 
Johnson. They have been nominated through the regular process. 
And the best way for the President to ensure certainty is to 
nominate two well-qualified individuals who will respect the 
constitutional prerogatives of the power of advice and consent.
    Finally, I want to address any claim that the Senate was 
holding up these nominations. It simply holds no weight when 
you look at the calendar.
    The two unconstitutional appointees here today were 
originally nominated for their positions on December 15, 2011, 
just 20 days before the President took this unprecedented 
action.
    This committee did not even receive these nominees' 
applications until January 25--that's 21 days after they were 
appointed on Jan 4. Members had no opportunity to conduct 
background checks or otherwise evaluate the nominees.
    Adding insult to injury, the President chose to take this 
action on January 4, rather than January 2 when the Senate did 
adjourn between sessions. This 2-day difference means these 
unconstitutional appointments last a full 2 years, rather than 
one.
    Again, I urge these two individuals to respect the court's 
ruling and leave the Board immediately. And I urge the 
President to submit two new nominees for these two positions.
    Should he do so, I pledge to work for their swift 
consideration here at the HELP Committee.

    The Chairman. Thank you, Senator Alexander.
    First, I will recognize Senator Alexander for purposes of 
an introduction.
    Senator Alexander. Thank you, Mr. Chairman.
    I am pleased to introduce the distinguished nominee, Phil 
Miscimarra. He is currently a partner in the Labor and 
Employment Group of Morgan Lewis and Bockius in Chicago, where 
he has been since 2005. He has been a senior fellow at the 
Wharton School of Business. He received his B.A. from Duquesne, 
an MBA from Wharton, and a J.D. from the University of 
Pennsylvania Law School. I met with him, as I have the other 
nominees. I find him to be knowledgeable about our system. He 
has written entire books about the NLRB. I am glad to present 
him to the committee.
    The Chairman. Thank you, Senator Alexander.
    Now I will recognize Senator Murphy for purposes of an 
introduction.

                      Statement of Senator Murphy

    Senator Murphy. Thank you very much, Chairman Harkin, 
Ranking Member Alexander, for letting me introduce a dedicated 
public servant and very capable member of the National Labor 
Relations Board. Sharon Block is a current Board member who has 
dedicated her life to public service. She has served with 
integrity as a Board member since January 2012, and previously 
she served as Deputy Assistant Secretary for Congressional 
Affairs at the Department of Labor and as the senior labor and 
employment council for this committee, where she worked for 
Senator Kennedy.
    Ms. Block has also served as a senior attorney to Chairman 
Robert Battista at the National Labor Relations Board. From 
1994 to 1996, she was the Assistant General Counsel at the 
National Endowment for the Humanities after receiving her 
degree from Georgetown University Law Center, where she won the 
John F. Kennedy Labor Law Award.
    Ms. Block grew up in Westport, CT, and her parents, who I 
believe are here today, still reside in Wilton, CT. We are very 
proud of the work that she has done, and America's workers and 
businesses are counting on us to make sure that she can 
continue this important work as a Board member at the NLRB.
    Thank you, Mr. Chairman, for allowing me to introduce Ms. 
Block before the committee today.
    The Chairman. Thank you, Senator Murphy.
    Next I will recognize Senator Warren for the purposes of an 
introduction.

                      Statement of Senator Warren

    Senator Warren. Thank you, Mr. Chairman.
    It is my pleasure to introduce Richard F. Griffin, Jr., who 
has served on the NLRB since January 2012. Richard is a law 
school graduate of Northeastern University in Boston, and for 
28 years he has worked for the International Union of Operating 
Engineers. Seventeen of those years he spent as their general 
counsel. The operating engineers have a special place in my 
heart. My big brother operated a big crane and was a member of 
this union. I have had a chance to meet many of their members. 
They are honest people, hard workers who have literally helped 
build our country.
    As counsel, Mr. Griffin has helped cleanup the union and 
has served as a trustee for the central pension fund to assure 
the retirement security of over 100,000 participants, including 
my brother. Thank you.
    He has also had extensive experience working as counsel for 
the NLRB. He served both Democratic Board member John Fanning 
and President Reagan's appointee, Republican Chairman Donald 
Dotson.
    We are pleased to have you here today with us and to share 
your testimony, and we are very pleased to welcome your wife 
and your daughter, who I understand are also with you. Thank 
you very much for being with us. Massachusetts is proud of you, 
and we look forward to your testimony today and your service on 
the NLRB.
    The Chairman. Thank you very much, Senator Warren.
    I would like to call to the table our former colleague and 
good friend, former Senator Byron Dorgan of North Dakota, for 
the purposes of an introduction.
    Senator Dorgan, welcome back to the Senate.

                      Statement of Senator Dorgan

    Senator Dorgan. Mr. Chairman, thank you very much. Members 
of the committee, it is nice to be here and nice to see all of 
you. I will be mercifully brief. I know you have five nominees, 
and you have already had another hearing earlier this morning.
    I was just thinking as I was sitting here that with all the 
difficulty of nominations, it is still an enormously hopeful 
sign that when their country calls, people come to these tables 
and say I will serve, and that is the case again this morning.
    I am here to introduce a friend and colleague named Harry 
Johnson. Harry is someone who has a distinguished career. He is 
a native Virginian. He is a friend. He is a Harvard graduate, 
has a very distinguished career in law in California working 
for Arent Fox, and I have had the opportunity to work with him 
and know him well and commend him to you.
    He is smart, honest, and experienced. I am convinced he 
will make a very positive contribution to this Board. It seems 
to me that when you put someone who is both serious and 
thoughtful on a board like this at this time, it certainly will 
help, not hurt, the workings of that board.
    If I might make just one additional comment. Our country is 
blessed, I think, that over time, when the question is asked 
who will lead, that there are always people who stand up in 
this country and say I will lead and answer that call, and 
Harry Johnson is one of them. They, as you know, and their 
families often pack up, including their children and their 
belongings, and move halfway across the country to serve their 
country. That is the case today with Harry Johnson. He is an 
awfully good choice. I am proud that the President has asked 
him to serve, proud that he has volunteered to serve, and hope 
that he will have very strong support among the committee 
members this morning.
    Mr. Chairman, thank you very much.
    The Chairman. Senator Dorgan, thank you very much for being 
here and for that introduction. You are always welcome to 
appear before this committee, on this or anything else. Thank 
you very much, Senator Dorgan.
    Senator Schumer was going to be here for the purposes of an 
introduction of Chairman Pearce, but I think he is tied up in 
the immigration hearing in the Judiciary Committee. So if Mr. 
Pearce doesn't mind, I will take Mr. Schumer's place and 
introduce the Chairman.
    Mark Gaston Pearce is currently the Chairman of the 
National Labor Relations Board, and has served as a member of 
the NLRB since March 2010. Formerly a founding partner at 
Creighton Pearce Johnson and Giroux, Chairman Pearce has been 
in the practice of labor and employment law for more than three 
decades. At the start of his career, Chairman Pearce worked as 
a field attorney and later a district trial specialist with 
Region III of the National Labor Relations Board.
    Senator Schumer, we welcome you. I didn't know if you were 
going to get out of that immigration markup or not.

                      Statement of Senator Schumer

    Senator Schumer. A few minutes respite is welcome. It's 
much more pleasant to be here.
    The Chairman. Thank you, and welcome to the committee. I 
just started to introduce Mr. Pearce, but I will yield to you 
for the purposes of an introduction.
    Senator Schumer. Thank you, Chairman Harkin and Ranking 
Member Alexander, and all of my colleagues here today. I know 
you are pressed for time, so I will try to be brief.
    I am so pleased to be able to introduce an esteemed 
attorney and a native of Brooklyn, NY, my home borough, who 
made his home at the other end of our great State in a 
wonderful place called Buffalo, NY, and that is Mark Pearce to 
this committee.
    For some of you, this is a reintroduction. President Obama 
appointed Mark to serve on the NLRB and was confirmed by the 
full Senate for a term ending August 27, 2013. After a year as 
a member of the Board, Mark was sworn in as its chairman, and 
today I would ask the committee to approve his nomination so he 
can continue his important work and the Board can be productive 
under his continued leadership.
    Mark's intellect, his experience and his dedication make 
him not only an outstanding public servant but also a tireless 
advocate for the issues he cares so much about, the 
unquestionable need for fair labor practices and fair 
representation for union workers.
    Before coming to Washington, Mark was a founding member of 
the Buffalo, NY law firm of Creighton Pearce Johnson and 
Giroux. Mark practiced labor and employment law before State 
and Federal courts and agencies. He served by appointment of 
the Governor on the New York State Industrial Board of Appeals, 
and throughout his career he has represented individuals, as 
well as public and private sector labor unions, in all matters 
involving employment and labor relations, including civil 
service, employment discrimination, collective bargaining 
contract compliance, arbitration, and Taylor Law prosecution.
    Mark has not just served on the Board and in the courtroom, 
but he has been committed to helping the next generation by 
working in the classroom. He taught at Cornell University's 
School of Industrial Labor Relations. He is a Fellow in the 
College of Labor and Employment Lawyers. So Mark's 
unquestionable dedication, experience and intelligence make him 
extremely qualified to serve on the NLRB, and I recommend his 
nomination without reservation and urge his swift confirmation.
    Thank you, Mr. Chairman.
    The Chairman. Senator Schumer, thank you very much for 
being here and for appearing before this committee, and 
Godspeed on immigration reform. Thank you very much, Senator 
Schumer.
    Now I will call to the witness table our nominees. It will 
be, from left to right, Chairman Pearce, Mr. Griffin, Ms. 
Block, Mr. Johnson, Mr. Miscimarra.
    Again, we welcome you all here to the committee. I thank 
each and every one of you, as a lot of the introducers have 
said, for your willingness to serve on this very crucial and 
important independent board.
    Your statements will all be made a part of the record in 
their entirety. I would ask if you would sum up in 5 minutes or 
less so that we can then get into our question-and-answer 
period.
    We will start with our distinguished Chairman, Mr. Pearce. 
Again, welcome back to the committee, and please proceed as you 
so desire.

   STATEMENT OF MARK GASTON PEARCE, CHAIRMAN, NATIONAL LABOR 
                  RELATIONS BOARD, BUFFALO, NY

    Mr. Pearce. Thank you, Chairman Harkin, Senator Alexander, 
and members of the committee. It is a great honor to appear 
before you today, as well as to be considered for another term 
as a member of the National Labor Relations Board.
    I am joined here by my wife, Nancy. My daughter, Naima, 
could not make it.
    I was born, as Senator Schumer said, in Brooklyn, one of 
five children. My parents, Jamaican and Cuban-born immigrants, 
came to the United States with the idea that with honest, hard 
work, one can accomplish almost anything in this great country.
    My mother was a factory worker, and my father worked as a 
laborer and handyman. They saved, bought real estate, started 
small businesses, and turned their hopes into reality. Although 
possessed of little formal schooling, my parents instilled in 
their children a sense of the importance of education. They 
lived to see me become a practicing attorney, and my mother 
proudly saw me confirmed as a member of the National Labor 
Relations Board. I graduated from Erasmus Hall High School in 
Brooklyn, Cornell University, and several of my college summers 
were spent working electrical construction as a college helper. 
The recent installation of the Freedom Tower in New York City 
reminded me that during two of these summers, I had the amazing 
experience of working on the original Twin Towers, a monument 
to American labor and ingenuity that will not be forgotten.
    I received my law degree from the State University of New 
York at Buffalo, and it was in Buffalo, that great working-
class city, where I fell in love with my wife and with labor 
law, in that order. As a law student, I was assigned to the 
NLRB's Buffalo regional office through the school's work-study 
program. This exposure was transforming. I saw that through the 
enforcement of the Act, significant issues affecting workers, 
employers and unions were being addressed and industrial peace 
was being attained. I knew immediately that this was what I 
wanted to do.
    This became the focus of my studies and my subsequent 
employment. I worked for 15 wonderful years in Buffalo at the 
regional office as a field attorney and district trial 
specialist, enforcing the Nation's primary labor law throughout 
the United States. I eventually left the NLRB to go into 
private practice. I co-founded a Buffalo law firm specializing 
in labor and employment law. I practiced extensively before the 
National Labor Relations Board and also represented clients 
before State and Federal courts and agencies. I taught courses 
at Cornell, and I served as a certified mediator for the U.S. 
District Court of the western District of New York. Mediation 
training became a valuable tool in my efforts at the Board to 
seek common ground where there are divergent views.
    In 2010, I had the honor and privilege to be nominated, 
appointed and confirmed as a member of the National Labor 
Relations Board, the very agency in which I started my career. 
The following year, that honor and privilege was even further 
heightened by being named Chairman of the Board. As Chairman, I 
have gained an even deeper appreciation for the work of the 
agency and its importance to employees, employers and unions.
    In the last fiscal year alone, over 20,000 unfair labor 
practice charges were filed with the agency by members of the 
public. As a result of effective Board enforcement of the Act, 
more than 1,200 workers were offered reinstatement, and over 
$44 million were recovered by employees in back pay and 
reimbursement of union fees, dues or fines. And during the same 
period, the Board processed close to 2,500 election petitions 
and conducted more than 1,600 representation elections. For a 
small agency, the Board has touched the lives of many 
Americans.
    For almost 2 years I have represented the agency as one of 
the leaders and principal spokespersons. I have embraced the 
responsibility of Chairman, and I am grateful for the 
opportunity to serve in this manner. If it pleases the Senate, 
it would be my privilege to continue to serve on the Board.
    I thank you for this opportunity to offer these remarks, 
and I welcome your questions.
    [The prepared statement of Mr. Pearce follows:]

                Prepared Statement of Mark Gaston Pearce

    Thank you, Chairman Harkin, Senator Alexander, and members of the 
committee.
    It is a great honor to appear before you today as well as to be 
considered for another term as member of the National Labor Relations 
Board.
    I am joined here by my wife, Nancy McCulley. Our daughter Naima 
could not be here today.
    I was born and raised in Brooklyn, NY as one of five siblings. My 
parents, Jamaican and Cuban immigrants, came to the United States with 
the idea that with honest hard work one can accomplish almost anything 
in this great country.
    My mother was a factory worker and my father worked as a laborer 
and handyman. They saved, bought real estate, started small businesses 
and turned their hopes into reality. Although possessed of little 
formal schooling, my parents instilled in their children a sense of the 
importance of education. They lived to see me become a practicing 
attorney and my mother proudly saw me confirmed as a member of the 
National Labor Relations Board.
    After graduating from Erasmus Hall High School in Brooklyn, I 
earned a bachelor's degree from Cornell University. Several of my 
college summers were spent working electrical construction as a college 
helper in New York City. During two of these summers I had the amazing 
experience of working on the World Trade Center, a monument of American 
labor and ingenuity that will never be forgotten.
    I received my law degree from the State University of New York at 
Buffalo. And it was in Buffalo, that great working-class city, where I 
fell in love with my wife and with labor law (in that order).
    As a law student, I had the good fortune to be assigned to the 
NLRB's Buffalo regional office through the school's work-study program. 
This exposure was transforming. I saw that through the enforcement of 
the Act, significant issues affecting workers, employers and unions 
were being addressed and industrial peace was being attained.
    I knew immediately that this was what I wanted to do and it became 
the focus of my studies and subsequent employment. I worked for 15 
wonderful years at that Buffalo regional office as a field attorney and 
District trial specialist enforcing the Nation's primary labor law 
throughout the United States.
    I eventually left the NLRB to go into private practice. I co-
founded a Buffalo law firm specializing in labor and employment law. I 
practiced extensively before the National Labor Relations Board and 
also represented clients before State and Federal courts and agencies. 
I taught courses at Cornell University's labor extension program and 
served as a certified mediator for the U.S. District Court for the 
western District of New York. Mediation training became a valuable tool 
in my efforts at the Board to seek common ground where there are 
divergent views.
    By appointment of the Governor, I served the State of New York as a 
board member of the Industrial Board of Appeals. There, I worked with 
the other members of a bipartisan board to resolve appeals of findings 
of the New York State Department of Labor.
    In 2010, I had the honor and privilege to be nominated, appointed 
and confirmed as a member of the National Labor Relations Board, the 
very agency in which I started my legal career. The following year the 
honor and privilege took new heights when I was designated as chairman. 
As chairman I have gained an even deeper appreciation for the work of 
the agency and its importance to employees, employers and unions.
    In the last fiscal year alone, over 20,000 unfair labor practice 
charges were filed with this agency by members of the public. As a 
result of effective Board enforcement of the Act, more than 1,200 
workers were offered reinstatement, and over $44 million were recovered 
for employees in back pay or reimbursement of union fees, dues or 
fines. And during the same period, the Board processed close to 2,500 
election petitions and conducted more than 1,600 representation 
elections. For a small agency, the Board has touched the lives of many 
Americans.
    For almost 2 years I have represented the agency as one of its 
leaders and principal spokesperson. I have embraced the 
responsibilities of chairman and am grateful for the opportunity to 
serve in this manner. If it pleases the Senate it would be my privilege 
to continue to serve on the Board.
    Thank you for the opportunity to offer these opening remarks. I 
welcome your questions.

    The Chairman. Your timing is perfect, 5 minutes exactly. 
Thank you.
    Mr. Griffin, welcome, and please proceed.

 STATEMENT OF RICHARD F. GRIFFIN, JR., MEMBER, NATIONAL LABOR 
                RELATIONS BOARD, WASHINGTON, DC

    Mr. Griffin. Chairman Harkin, Senator Alexander, and 
members of the committee, I am honored to appear before you 
today as a nominee for the National Labor Relations Board. When 
I started as an NLRB staff lawyer in 1981, I did not hope that 
such an opportunity, the pinnacle of any labor lawyer's career, 
would be possible for me. I am humbled by the opportunity to 
serve and greatly appreciate the confidence that President 
Obama expressed by nominating me.
    I am joined by my wife Claire, my daughter Emma, and my son 
Charlie. It is impossible for me to express the full extent of 
my appreciation for my family's love and support.
    I also want to credit my parents, Richard F. Griffin, Sr., 
and Jane Flanagan Griffin. They have set the example in their 
life which I have tried to emulate throughout mine. Their work 
ethic--they are both 80 years old and working more than full-
time; my father is a lawyer, my mother is a research 
scientist--is a standard I can only aspire to. Their active 
engagement in numerous civic and professional committees in my 
hometown of Buffalo, NY has been an inspiration.
    I was educated in the Catholic schools in Buffalo, at Yale 
University, and at Northeastern University School of Law. 
During law school, through the school's unique co-op program, I 
worked for the United Auto Workers in Detroit and for a small 
labor law firm in Chicago. These experiences confirmed my 
desire to practice labor law. The field offered an opportunity 
for bridging differences, solving problems, and making people's 
lives better that suited my interests and engaged my abilities.
    After law school I went to work at the NLRB on the staff of 
Board Member John Fanning. Appointed by President Eisenhower in 
1957, Mr. Fanning is an NLRB legend. He served 25 years as a 
Board member. He truly believed in the national labor policies 
stated in Section 1 of the Act,

        ``to encourage collective bargaining and to protect 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 for 
        other mutual aid or protection.''

    Grave respect for these statutory principles was ingrained 
in me by the fine lawyers who worked for Mr. Fanning. I took 
what I learned from them to work for the new Board Chairman, 
Donald Dotson, when Mr. Fanning's term was up and our staff was 
reassigned. You would be hard-pressed to find any two Board 
members who were farther apart on the ideological spectrum than 
Mr. Fanning and Chairman Dotson, yet I worked successfully for 
both of them and, in fact, received the exact same annual 
evaluation from both.
    In 1983, I went to work in the legal department in the 
International Union of Operating Engineers and stayed there for 
the next 28 years. I advised the officers and staff of the 
union on organizing representation issues, pension and 
healthcare issues, and internal governance requirements. I also 
served for 9 years as a union trustee on the Operating 
Engineers central pension fund, a very large jointly trusteed 
fund where I worked closely with the fund's management trustees 
to assure the retirement security of the fund's more than 
100,000 participants.
    In my last 17 years at the Operating Engineers, I was the 
union's general counsel. During that time, I represented an 
organization that in terms of assets, employees, and receipts 
was the equivalent of a mid-sized business enterprise. I dealt 
with the legal issues that the lawyer for any such enterprise 
would face, from property tax appeals to complying with the 
Financial Accounting Standard Board's pronouncements. The union 
had responsibilities as an employer to comply with all laws 
governing employers, as well as to abide by the collective 
bargaining agreements with several unions that represented that 
organization's employees.
    These experiences, as a staff lawyer at the NLRB, as a 
union lawyer, and as the general counsel of a mid-sized 
enterprise, give me a useful and, I believe, fairly unique 
perspective on the cases coming before the Board. Since my 
recess appointment I have tried to bring that perspective to 
bear, working with wonderful colleagues, Chairman Pearce and 
Member Block, both of whom bring their own broad range of labor 
law experiences, as well as deep knowledge of the Act, to our 
deliberations. I have done so guided by the talented, diverse 
and experienced career NLRB staff. There are no finer lawyers 
in government service than those working for the Board. I hope 
to do so in the future with two new learned and capable 
colleagues, Phil Miscimarra and Harry Johnson.
    If confirmed, I pledge to work impartially and to the best 
of my ability with my colleagues and the Board's career staff 
to strike the appropriate balance between employee rights and 
management interests that is the Board's central task. Thank 
you very much for your consideration of my nomination, and I 
look forward to your questions.
    [The prepared statement of Mr. Griffin follows:]

             Prepared Statement of Richard F. Griffin, Jr.

    Chairman Harkin, Ranking Member Alexander and members of the 
committee.
    I am honored to appear before you today as a nominee for the 
National Labor Relations Board. When I started as an NLRB staff lawyer 
in 1981, I did not hope that such an opportunity--the pinnacle of any 
labor lawyer's career--would be possible for me. I am humbled by the 
chance to serve on the Board and greatly appreciate the confidence 
President Obama expressed by nominating me.
    I would like to introduce my wife Claire and my daughter Emma; my 
son Charlie is unable to be here today. It is impossible for me to 
express the full extent of my appreciation for my family's love and 
support.
    I also want to credit my parents--Richard F. Griffin, Sr. and Jane 
Flanigen Griffin. They set the example, both in their professional and 
personal lives, which I have tried to emulate throughout mine. Their 
work ethic--they are both 80 years old and still working more than 
full-time, my father as a lawyer and my mother as a research 
scientist--is a standard I can only aspire to; their active engagement 
in numerous civic and professional activities in my hometown of 
Buffalo, NY has been an inspiration.
    I was educated in the Catholic schools in Buffalo, at Yale 
University and at Northeastern University School of Law. While at 
Northeastern--through the school's unique co-op program, where students 
alternate work quarters with academic quarters--I worked in the United 
Auto Workers General Counsel's office in Detroit and for a small labor 
law firm in Chicago. These experiences confirmed my desire to practice 
labor law--the field offered an opportunity for bridging differences, 
solving problems and making people's lives better that suited my 
interests and engaged my abilities.
    After law school, I went to work at the NLRB on the staff of Board 
Member John Fanning. Appointed by President Eisenhower in 1957, Mr. 
Fanning was the longest serving Board member in the history of the 
agency--he served 25 years. He truly believed in the national labor 
policies stated in Section 1 of the Act:

        ``to encourage the practice and procedure of collective 
        bargaining and to protect 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 for 
        other mutual aid or protection.''

    Grave respect for these guiding statutory principles was ingrained 
in me by the fine lawyers who worked for Mr. Fanning. I took what I 
learned from them to work for the new Board Chairman appointed by 
President Reagan, Donald Dotson, when Mr. Fanning's term was up and our 
staff was reassigned. You would be hard pressed to find any two Board 
members who were farther apart on the ideological spectrum than Mr. 
Fanning and Chairman Dotson. Yet, I worked successfully for both of 
them and, in fact, received the exact same annual evaluation from both.
    In 1983 I went to work in the legal department of the International 
Union of Operating Engineers and stayed there for the next 28 years. I 
advised the officers and staff of the International Union on organizing 
and representation issues under the National Labor Relations Act, on 
the pension and health care requirements of ERISA, and on internal 
governance requirements under the Labor-Management Reporting and 
Disclosure Act, to name just a few of my responsibilities. I also 
served for 9 years as a union trustee on a very large jointly trusteed 
pension fund, where I worked with the management trustees--many of whom 
were executives of large employer associations--to assure the 
retirement security of the fund's more than 100,000 participants.
    For my last 17 years at the Operating Engineers, I was the 
International Union's general counsel. In that capacity, in addition to 
dealing with all the organization's union-side labor law questions, I 
represented an organization that, in terms of number of employees, 
annual receipts, and assets approximated a mid-sized business 
enterprise. I dealt with the legal issues that the in-house general 
counsel of any such enterprise would face--everything from property tax 
appeals on the headquarters building to how to comply with the 
Financial Accounting Standards Board pronouncements on the union's 
financial statements. In the employment law area, the union had 
responsibilities as an employer to comply with all of the laws 
governing employers, as well as to abide by the collective bargaining 
agreements with several unions that represented the organization's 
employees.
    My combination of work experiences--as an NLRB staff attorney, as a 
union lawyer, and as the general counsel of a mid-sized enterprise--
give me a useful and, I believe, fairly unique perspective on the cases 
coming before the Board. Since my recess appointment in January 2012, I 
have tried to bring that perspective to bear working with wonderful 
colleagues, Chairman Pearce and member Block, both of whom bring their 
own broad range of labor law experiences, as well as deep knowledge of 
the Act, to our deliberations. I have done so guided by the talented, 
diverse and extremely experienced career NLRB staff--there are no finer 
lawyers in government service than those working for the Board. And, I 
hope to do so in the future with two new learned and capable 
colleagues--Philip Miscimarra and Harry Johnson III. If confirmed, I 
pledge to continue to work impartially and to the best of my ability 
with my colleagues and the Board's career staff to strike the 
appropriate balance between employees' rights and legitimate management 
interests that is the Board's central task.
    Thank you very much for your consideration of my nomination and I 
look forward to your questions.

    The Chairman. Thank you again, Mr. Griffin. You all are 
right on 5 minutes. I appreciate that.
    Now we will turn to Ms. Block. I remember not too long ago, 
you used to sit right here. Welcome back, Ms. Block.

  STATEMENT OF SHARON BLOCK, MEMBER, NATIONAL LABOR RELATIONS 
                     BOARD, WASHINGTON, DC

    Ms. Block. Thank you, Chairman Harkin, Senator Alexander, 
and members of the committee. I am so honored to appear before 
you as a nominee for the National Labor Relations Board. I 
assure you that I fully appreciate the seriousness of your task 
in assessing my fitness for the position for which the 
President has nominated me. As Chairman Harkin alluded to, I 
have spent a fair amount of time in this room, sitting behind 
Senator Kennedy when I served as senior labor and employment 
counsel to the committee, or sitting in one of the chairs just 
behind me in my role as Deputy Assistant Secretary of Labor for 
Congressional Affairs when department witnesses testified here. 
And I welcome the same scrutiny of my nomination that I have 
witnessed in this room of others.
    Watching the members of this committee do their work I 
believe prepared me well for taking on the role of member of 
the National Labor Relations Board. My experience working on 
the MINER Act for the committee has been particularly 
instructive for my tenure as a Board member.
    I first came to work for Senator Kennedy in the wake of the 
terrible Sago Mine disaster. Senators Kennedy, Enzi, Murray and 
Isakson recognized the urgency of the need to protect American 
miners and told us, their staff, to get a bill done to improve 
mine safety. I learned from participating in those negotiations 
many important lessons, the value of considering the 
perspectives of all stakeholders, the necessity of finding 
practical solutions that do more than just sound good on paper, 
and the virtue of principled compromise. No senator involved in 
the negotiations got everything he or she wanted in the 
resulting legislation, but through your hard work, open dialog, 
and willingness to compromise, you achieved a great bill that 
has made a difference for workers and employers, and I have 
tried to apply these lessons to my work as a Board member.
    My service as a long-time career attorney at the NLRB also 
has prepared me well for service as a Board member. At the 
Board, I learned from the most talented and dedicated 
government attorneys how to represent the public interest. 
While I was fortunate to represent the Board in many high-
profile cases during my earlier tenure at the Board, what made 
the biggest impact on me were the smaller cases, the cases 
where the parties have no interest in making law or engaging in 
ideological debate. Instead, they are the cases where the 
Board, as a neutral adjudicator, brings resolution to parties 
who just want to have their voices heard and their views fairly 
considered.
    These are the kinds of cases that dominate the Board's 
docket today, as in the past. The overwhelming majority of 
cases that I have participated in as a Board member, serving 
with both Democrats and Republicans, have been unanimous 
decisions that applied long-standing precedent. The importance 
of these cases cannot be overstated. It is through these cases 
that the Board fulfills its mission of preserving industrial 
peace. We bring resolution and repose to the worker who seeks 
reinstatement after being unlawfully discharged, and we affirm 
the right of an employer to move forward in running his or her 
business when the facts show that a genuine impasse in 
negotiations exists so that the collective bargaining process 
will and can continue.
    As you know, as Chairman Harkin alluded to, there is no 
private right of action under the Act. So employees, employers, 
and unions are dependent on the Board to ensure that the system 
for resolving their disputes that Congress created still works. 
So it is incumbent on us to move all cases as efficiently and 
fairly as possible.
    In my experience on the Board, again with both Democrats 
and Republicans, we have done so in the spirit of respectful 
collegiality. I discuss every case with the career attorneys on 
my staff who have both management and labor experience. When I 
served as senior counsel to former Board Chairman Robert 
Battista, I always appreciated the frank case discussions he 
not only allowed but encouraged, and I have continued that 
tradition with my staff. They know that as a former career 
attorney, I will never underestimate the value of their 
contributions.
    I would just like to add that being nominated and serving 
as a Board member is the greatest honor of my professional 
life. I have been in public service almost all of my career. 
The longest span of my service has been as a career civil 
servant with the Board. When I first came to the Board as a 
staff attorney and during the 10 years I served in that role, I 
never dreamed that I would one day be a Board member. But when 
the President asked me to serve, I was surprised, humbled and 
awed. This nomination means so much to me because I believe the 
mission of the Board means so much to the tradition of fairness 
and dignity in the American workplace, and I believe a fully 
confirmed Board is the best way to honor and support that 
important tradition.
    In closing, I would like to thank two sets of people here 
who have been so important to me during the past 17 months. 
First, my colleagues Mark Pearce and Richard Griffin. The Board 
has had no finer members, and I am so grateful for the 
experience of serving with them. I would also like to thank my 
family who are here with me, my husband Kevin Hovland, my 
children Charlotte and Eli, my parents Lois and Joseph Block, 
and my uncle Michael Fuchs, for all their love and support.
    Thank you for the opportunity to offer these opening 
remarks, and I welcome your questions.
    [The prepared statement of Ms. Block follows:]

                   Prepared Statement of Sharon Block

    Thank you Chairman Harkin, Senator Alexander, and members of the 
committee. I am so honored and humbled to appear before you as a 
nominee to be a member of the National Labor Relations Board.
    I assure you that I fully appreciate the seriousness of your task 
in assessing my fitness for the position for which the President has 
nominated me. I have spent a fair amount of time in this room--sitting 
behind Senator Kennedy when I served as Senior Labor and Employment 
Counsel to the committee or sitting in one of the chairs just behind me 
in my role as Deputy Assistant Secretary of Labor for Congressional 
Affairs when Department witnesses testified here. I welcome the same 
scrutiny of my nomination that I have witnessed in this room of others.
    Watching the members of this committee do their work, I believe, 
prepared me well for taking on the role of member of the National Labor 
Relations Board. My experience working on the MINER Act for the 
committee has been particularly instructive for my tenure as a Board 
member. I first came to work for Senator Kennedy in the wake of the 
terrible Sago mine disaster. Senators Kennedy, Enzi, Murray, and 
Isakson recognized the urgency of the need to protect American miners 
and told us, their staff, to get a bill done to improve mine safety.
    I learned from participating in those negotiations many important 
lessons: the value of considering the perspectives of all stakeholders; 
the necessity of finding practical solutions that do more than sound 
good on paper; and the virtue of principled compromise. No Senator 
involved in the negotiations got everything he or she wanted in the 
resulting legislation, but through your hard work, open dialogue, and 
willingness to compromise you achieved a great bill that has made a 
difference for workers and employers. I have tried to apply these 
lessons to my work as a Board member.
    My service as a long-time career attorney at the NLRB also has 
well-prepared me for service as a Board member. I started my career 
representing management in employment law matters at Steptoe and 
Johnson. I then came to the Board when my career was still in a 
formative stage. At the Board, I learned from the most talented and 
dedicated government attorneys how to represent the public interest.
    While I was fortunate to represent the Board in many high profile 
cases during my earlier tenure at the Board, what made the biggest 
impact on me were the smaller cases--the cases where the parties have 
no interest in making law or engaging in ideological debate. Instead, 
they are the cases where the Board, as a neutral adjudicator, brings 
resolution to parties who just want to have their voices heard and 
their views fairly considered.
    These are the kind of cases that dominate the Board's docket today 
as in the past. The overwhelming majority of cases I have participated 
in as a Board member--serving with both Democrats and Republicans--have 
been unanimous decisions that applied long-standing precedent. The 
importance of these cases cannot be overstated. It is through these 
cases that the Board fulfills its mission of preserving industrial 
peace. We bring resolution and repose to the worker who seeks 
reinstatement after being unlawfully discharged. We affirm the right of 
an employer to move forward in running his or her business when the 
facts show that a genuine impasse in collective-bargaining negotiations 
exists so the bargaining process will continue.
    As you know, there is no private right of action under the Act. 
Employees, employers and unions are dependent on the Board to ensure 
that the system for resolving their disputes that Congress created 
works. So it is incumbent on us to move all cases as efficiently and 
fairly as possible.
    In my experience on the Board, with both Democrats and Republicans, 
we have done so in a spirit of respectful collegiality. I discuss every 
case with the career attorneys on my staff, who have both management 
and labor experience. When I served as senior counsel to former Board 
Chairman Robert Battista, I always appreciated the frank case 
discussions he not only allowed, but encouraged. I have continued that 
tradition with my staff. They know that as a former career attorney, I 
will never underestimate the value of their contributions.
    I would just like to add that being nominated and serving as a 
Board member is the greatest honor of my professional life. I have been 
a public servant almost all of my career. The longest span of my 
service has been as a career civil servant with the Board. When I first 
came to the Board as a staff attorney, I never dreamed that I would one 
day be a Board member. When the President asked me to serve, I was 
surprised, humbled, and awed. This nomination means so much to me 
because I believe that the mission of the Board means so much to the 
tradition of fairness and dignity in the American workplace and that a 
fully confirmed Board is the best way to honor and support that 
tradition.
    In closing, I would like to thank two sets of people here who have 
been so important to me during the past 17 months. First, my colleagues 
Mark Pearce and Richard Griffin. The Board has had no finer members, 
and I am so grateful for the experience of serving with them, debating 
with them, and learning from them. I also would like to thank my family 
who are here with me today, my husband, Kevin Hovland, my children, 
Charlotte and Eli, my parents, Lois and Joseph Block, and my uncle, 
Michael Fuchs, for all their love and support.
    Thank you for the opportunity to offer these opening remarks. I 
welcome your questions.

    The Chairman. Thank you, Ms. Block, and we welcome you, and 
we welcome all the members of your family who are here also.
    Mr. Johnson, welcome again, and please proceed as you so 
desire.

 STATEMENT OF HARRY I. JOHNSON III, MEMBER-DESIGNATE, NATIONAL 
          LABOR RELATIONS BOARD, PACIFIC PALISADES, CA

    Mr. Johnson. Chairman Harkin, Ranking Member Alexander, and 
other members of this committee, thank you for the privilege of 
my being with you here today and of being able to meet with 
you, some of you previously, and your staffs. I'd like to thank 
Senator Dorgan for his extremely gracious introduction. I would 
like to thank President Obama for the great honor of this 
nomination. And thanks finally to the folks sitting with me 
here at this table, the three Democratic nominees and the other 
Republican nominee, for their own personal courtesy to me as we 
move through this post-nomination process together.
    I would also appreciate the brief privilege of introducing 
you to some people who are here with me today as well, my 
family. My wife Monica, sitting a few rows back over my right 
shoulder, has had an impressive career herself after graduating 
from Harvard Law School. She served as a lawyer and a mediator, 
and then chose to stay home to create a home for our family. I 
couldn't be here before you today at this proceeding without 
her support.
    I would like to introduce you to our 10-year-old daughter 
Sophia, and our 8-year-old daughter Natalia, a few rows behind 
me again, both impressive students, hard-working athletes, and 
most importantly to us, young people with kind and generous 
hearts.
    I would like to introduce you to my parents, Captain Harry 
I. Johnson, Jr., a retired enlistee in the Navy in World War 
II, served on the USS Wisconsin as an electrician's mate and 
then as a physician in the Naval Reserves, for a total of 43 
years of service; and my mother Jolene Johnson, Lieutenant 
Commander retired, who served in the Navy Nurse Corps for 21 
years; and finally my brother Dr. Scott Johnson, an 
accomplished economist who came down here from Boston today, 
and I had some friends come up from my hometown of Roanoke, VA. 
And I thank them.
    To the matter at hand, this is the second half of the most 
important job interview that I have ever had. Confirmation by 
the Senate is a crucial part of this process, and in the 
remaining time I hope to give you a brief window into who I am 
and what I believe.
    I am currently in private practice with the law firm of 
Arent Fox LLP, founded in the District in 1942, with its 
founders having all come from distinguished careers in 
government service. I work in the firm's Los Angeles office. My 
practice since I graduated from Harvard Law School in 1994 has 
been in employment law, mostly representing companies from the 
very large to the very small. It has included a good deal of 
traditional labor law, including proceedings in unfair labor 
practice cases and representation cases before the National 
Labor Relations Board.
    In the end, however, what I just told you is merely a list 
of relevant qualifications and achievements. For nomination to 
the Board, beliefs are just as important. So let me tell you 
what I believe concerning the National Labor Relations Act.
    The Board is one of the oldest Federal agencies, and thanks 
to the hard work of its dedicated career staff, it serves an 
incredibly important and multifaceted role in our country and 
its free enterprise system. I believe in free enterprise. But 
we cannot have a free enterprise system without a system of 
labor law, just like we can't have a free enterprise system 
without property law or contract law. I believe that the Board 
must serve as an honest broker when it decides labor law cases 
and should never pick winners and losers based on ideology 
rather than the law.
    In my mind, the Board should always remember that if good-
faith employers cannot operate because of a regulatory 
environment that suffocates their ability to create economic 
success, then there will not be jobs, there will not be 
employees, and ultimately there cannot be viable labor unions. 
I think we would all be saddened, and justifiably saddened, at 
such a result.
    We cannot choose the times in which we live, and I did not 
choose the time back in July of last year when someone would 
call and ask me to serve my country in this capacity. If I 
could have chosen, I would have preferred my potential service 
on the Board to come at a time when the agency was not enmeshed 
in profound constitutional and political disagreements, but 
here we are, and here I am because I said yes.
    If confirmed, I would translate that yes into working as 
hard as I could that we have a functioning Board fairly 
adjudicating the important issues that come before it. To 
paraphrase Winston Churchill, I can only give the American 
people my blood, toil, tears, and sweat, and nearly two decades 
of salient experience. But if confirmed, I will give you the 
full measure of all my efforts in serving as a guardian of the 
Act and all it represents.
    Thank you, and I look forward to answering all of your 
questions.
    [The prepared statement of Mr. Johnson follows:]

               Prepared Statement of Harry I. Johnson III

    Chairman Harkin, Ranking Member Alexander, and other committee 
members, thank you for the privilege of being here with you today and 
of allowing me to meet previously with some of you and your staff 
members.
    Senator Dorgan, thank you also for such a gracious introduction. 
Thanks, finally, to the three Democratic nominees and the other 
Republican nominee for their personal courtesy to me as we moved 
through the post-nomination process together.
    I would also appreciate the privilege of briefly introducing you to 
some people whom I would like to thank as well. I would like you to 
meet my wife Monica, sitting here behind me, who has had an impressive 
career in her own right from Harvard Law School through private 
practice as a lawyer and mediator, and then who chose to create a home 
for our family. I could not be before you here today without her 
support. I would like to introduce the committee to our 10-year-old 
daughter, Sophia, and 8-year-old daughter, Natalia. They are both 
impressive students, hardworking athletes (especially at basketball), 
and most importantly to us, young people with kind and generous hearts.
    I would like to introduce you to my parents, Captain Harry I. 
Johnson, Jr. (retired) who enlisted in the Navy in World War Two, 
served on the USS Wisconsin as an electrician's mate and later in the 
Naval Reserves as a physician for a total of 43 years, and my mother 
Jolene Johnson, Lieutenant Commander (retired), who served in the U.S. 
Navy Nurse Corps for 21 years. And I would like to introduce you to my 
brother, Dr. Scott Johnson, an accomplished economist.
    They have all been my constant guidance and inspiration. Finally, I 
thank my friends who have traveled here from my hometown of Roanoke, VA 
to attend today.
    This is the second half of the most important job interview that I 
have ever had. Confirmation by the Senate is a crucial part of this 
process, and with my remaining time, I hope to give you a brief window 
into who I am and what I believe.
    I am currently in private practice with the law firm of Arent Fox 
LLP, founded in the District in 1942, with its founding partners having 
come from distinguished careers in government service. I work in the 
firm's Los Angeles office. My practice since I graduated from Harvard 
Law School in 1994 has been in employment law, mostly representing 
companies, from the very large to the very small. That has included a 
good deal of traditional labor law, representing employers in both 
adversarial proceedings and representation cases before the National 
Labor Relations Board.
    In the end, however, that is merely a list of relevant achievements 
and qualifications. For a nomination to the Board, beliefs are just as 
important. Let me tell you what I believe concerning the National Labor 
Relations Act.
    The Board is one of the oldest Federal agencies, and thanks to the 
hard work of its dedicated career staff serves an incredibly important 
and multifaceted role in our country and its free enterprise system. I 
believe in free enterprise. But we cannot have a free enterprise system 
in a modern America without labor law, just like we cannot have a free 
enterprise system without property law or contract law. I believe that 
the Board must serve as an honest broker when it decides labor law 
cases and should never attempt to pick winners and losers based on 
ideology rather than the law. In my mind, the Board should always 
remember that if good faith employers cannot operate because of a 
regulatory environment that suffocates their ability to create economic 
success, then there will not be jobs, there will not be employees, and 
ultimately there cannot be viable labor unions. I think we would all be 
justifiably saddened by those results.
    We cannot choose the times in which we live. And I did not choose 
the time--back in July of last year--when someone would call and ask me 
to serve my country in this capacity. If I could have chosen, I would 
have preferred my potential service on the Board to have come at a time 
when the agency was not enmeshed in profound constitutional and 
political disagreements. But here we are, and here I am, because I said 
``yes.'' If confirmed, I would translate that ``yes'' into working as 
hard as I could that we have a functioning Board fairly adjudicating 
the important issues coming before it. To paraphrase Winston Churchill, 
I can only give the American people my blood, toil, tears and sweat, 
but that is exactly what I will give you, along with nearly two decades 
of salient experience. Thank you and I look forward to answering all of 
your questions.

    The Chairman. Thank you very much, Mr. Johnson.
    Mr. Miscimarra, again, welcome, and please proceed.

STATEMENT OF PHILIP ANDREW MISCIMARRA, B.A., MBA, J.D., MEMBER-
    DESIGNATE, NATIONAL LABOR RELATIONS BOARD, HINSDALE, IL

    Mr. Miscimarra. Thank you. Chairman Harkin, Ranking Member 
Alexander and other committee members, thank you for the 
opportunity to testify today. Senator Alexander, thank you for 
your introduction.
    My wife Mary Lynn and my three sons, Andrew, Joseph and 
Eric, are here today, also seated behind me, and I'm grateful 
to have their support. If I'm confirmed, they will be making 
their own sacrifice in the interest of public service similar 
to the sacrifices made by your own family members.
    I also appreciate President Obama's nomination. For a labor 
lawyer, there is no higher honor than being considered for the 
National Labor Relations Board. The Board deals with rights 
that are important to nearly everyone, affecting whether and 
how people can work to support their families or run successful 
businesses, with a big impact on communities and State and 
local governments.
    For me, these have never been abstract concepts. I grew up 
in Pittsburgh, PA. My father was the son of Italian immigrants 
and he worked for the city of Pittsburgh. My brother Tony spent 
a summer working in a steel mill. I began work at age 14 as a 
caddie. I worked in a movie theater. Then I got a job at the 
local Carnegie Library in Pittsburgh. For many years I worked 
as a musician represented by Local 6471 of the American 
Federation of Musicians.
    In my family, I learned firsthand about keeping an open 
mind regarding labor-management issues. At one point, my mother 
was a member of the Pittsburgh Public School Board. My older 
sister Pat, while living at home, was a Pittsburgh public 
school teacher who participated in a 57-day strike that kept 
62,000 students from going to school. The affected students 
included my younger sister Julie, whose high school graduation 
was jeopardized by the dispute.
    The teachers picketed every day. Some teachers, my older 
sister's friends, regularly came to our house. They put their 
picket signs outside with the signs facing the street, and 
everybody came inside where my mother invariably made them 
breakfast or served them coffee in the kitchen. Everybody was 
treated with respect, and nobody was forced to abandon their 
very different, strongly held opinions.
    I have applied the same principles while representing 
employers and dealing with unions and employees for 30 years. I 
have advanced clients' interests by focusing on substantive 
issues and working to foster constructive relationships with 
opposing counsel and unions. I have lived in the Chicago area 
for most of my career, since 2005 as a partner with Morgan 
Lewis and Bockius. I have also had the good fortune of being 
affiliated for over three decades with the Center for Human 
Resources at the University of Pennsylvania's Wharton Business 
School in Philadelphia.
    If I'm confirmed, three things would guide my service on 
the Board. First, I have great respect for the years of work 
done by Congress and by this committee which produced the 
National Labor Relations Act, including the Act's amendments. 
If confirmed, I will remember that labor law policy originates 
with Congress, not with members of the NLRB.
    Second, Board members come and go. But if confirmed, I will 
do everything I can to recognize the Board's many career 
professionals and staff members who do much of the Board's hard 
work and contribute so much in their public service.
    Finally, labor lawyers operate in a world where it can be 
difficult to find common ground. I embrace the reality that 
parties and often Board members can have sharp disagreements 
and strongly held views. Former Chairman John Fanning stated 
the one factor every NLRB case has in common is the presence of 
at least two people who see things completely different. I 
respect everyone who has served or is willing to serve on the 
Board. Regarding some policy issues, my fellow nominees and I 
may not always agree. If confirmed, I will approach every 
decision with an open mind. I will share my opinions in a 
constructive way. I will try to forge agreements with fellow 
Board members, I will be open to differing views.
    Above everything else, I will do my best to discharge the 
responsibility placed on every NLRB member, which is to apply 
the law as written consistent with what Congress intended. I 
recognize the Senate and this committee must carefully evaluate 
every nominee, and that includes myself. It is a privilege to 
be here. I look forward to the committee's questions. Thank 
you.
    [The prepared statement of Mr. Miscimarra follows:]

    Prepared Statement of Philip Andrew Miscimarra, B.A., MBA, J.D.

    Chairman Harkin, Ranking Member Alexander, and other committee 
members, thank you for the opportunity to testify today.
    My wife, Mary Lynn, and my three sons--Andrew, Joseph and Eric--are 
seated behind me. I am grateful to have their support, and if I am 
confirmed, they will be making their own sacrifices in the interest of 
public service.
    I also appreciate President Obama's nomination. For a labor lawyer, 
there is no higher honor than being considered for the National Labor 
Relations Board (NLRB). The Board deals with rights that are important 
to nearly everyone: affecting whether and how people can work, support 
their families, or run successful businesses, with a big impact on 
communities and State and local governments.
    For me, these have never been abstract concepts. I grew up in 
Pittsburgh, PA. My father was the son of Italian immigrants, and he 
worked for the city of Pittsburgh. My brother, Tony, spent a summer 
working in a steel mill. I began work at age 14 as a caddy, I worked at 
a movie theater, then I got a job at the local Carnegie Library. For 
many years, I worked as a musician--a pianist, arranger, and musical 
director--represented by Local 60-471 of the American Federation of 
Musicians.
    In my family, I learned first-hand about keeping an open mind 
regarding labor-management issues.
    At one point, my mother was a member of the Pittsburgh Public 
School Board; my older sister, Pat--while living at home--was a 
Pittsburgh Public School teacher who participated in a 57-day strike 
that kept 62,000 students from going to school; and the affected 
students included my younger sister, Julie, whose high school 
graduation was jeopardized by the dispute.
    The teachers picketed every day, and some teachers--my older 
sister's friends--regularly came to our house, they put their picket 
signs outside (facing the street), and everybody came inside where my 
mother made them breakfast or served them coffee in the kitchen. 
Everyone was treated with respect. And nobody was forced to abandon 
their very different, strongly held opinions.
    I have applied these same principles while representing employers--
and dealing with unions and employees--for 30 years. I have advanced 
clients' interests by focusing on substantive issues and working to 
foster constructive relationships with opposing counsel and unions.
    I have lived in the Chicago area for most of my career--since 2005, 
as a partner with Morgan Lewis & Bockius LLP.
    I have also been affiliated, over three decades, with the Center 
for Human Resources at the University of Pennsylvania's Wharton 
Business School in Philadelphia. My Wharton work has included research 
and writing, including three books about the NLRB. Rather than choosing 
sides, my books are directed to practitioners on all sides by 
summarizing--and hopefully making it easier to understand--the 
sometimes complicated legal principles developed by the Board and the 
courts.
    If I am confirmed, three things would guide my service on the 
Board.
    First, I have great respect for the years of work done by 
Congress--and by this committee--which produced the National Labor 
Relations Act (NLRA) including the Act's amendments. If confirmed, I 
will remember that labor law policy originates with Congress, not with 
members of the NLRB.
    Second, Board members come and go, but, if confirmed, I will do 
everything I can to recognize the Board's many career professionals and 
staff members who do much of the Board's hard work and contribute so 
much in their public service.
    Finally, labor lawyers operate in a world where it can be difficult 
to find common ground. I embrace the reality that parties--and, often, 
Board members--can have sharp disagreements and strongly held views. 
Former Chairman John Fanning served on the Board under Democrats and 
Republicans, and he stated:

          ``As someone who . . . participated in some 25,000 decisions 
        of the Board, I can assure you that the one factor every [NLRB] 
        case has in common . . . is the presence of at least two people 
        who see things completely different.'' \1\
---------------------------------------------------------------------------
    \1\ John Fanning, ``The National Labor Relations Act: Its Past and 
Its Future,'' in William Dolson and Kent Lollis, eds., First Annual 
Labor and Employment Law Institute 59, 63 (1984), quoted in Matthew M. 
Bodah, Congress and the National Labor Relations Board: A Review of the 
Recent Past, 22 J. Lab. Res. 699, 713 (Fall 2001).

    I respect everyone who has served or is willing to serve on the 
Board. Regarding some policy issues, my fellow nominees and I may not 
always agree. If confirmed, I will approach every decision with an open 
mind, and I will share my opinions in a constructive way. I will try to 
forge agreements with fellow Board members, and I will be open to 
differing views. Above all, I will do my best to discharge the 
``difficult and delicate responsibility'' placed on every NLRB 
member,\2\ which is to apply the law as written, consistent with what 
Congress intended.
---------------------------------------------------------------------------
    \2\ (NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 499 (1960), 
quoting NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96 (1957)).
---------------------------------------------------------------------------
    I recognize that the Senate and this committee must carefully 
evaluate every nominee, including myself. It is a privilege to be here, 
and I look forward to the committee's questions. I ask to have an 
extended version of my opening placed in the record.
    Thank you.

    The Chairman. Thank you, Mr. Miscimarra, and I welcome you 
and your family members who are all here also.
    Thank you. I think just from listening to all of you and 
reading your testimony, I think it is clear that every single 
one of you is eminently qualified for this position, no doubt 
in my mind.
    We will start a series of 5-minute questions.
    My first question is for Mr. Pearce. I want to ask that, 
despite the Board's important role in creating industrial peace 
I just discussed and others have discussed, it has come under 
increasing attack in the last several years. Most recently, 
concerns have been raised about the legitimacy of the National 
Labor Relations Board's continued operations following the D.C. 
Circuit Court decision in the Noel Canning case. While the D.C. 
Circuit itself acknowledged that its decision in this matter 
was in conflict with three other circuit courts of appeals, and 
despite the fact that the case has been appealed to the Supreme 
Court, some of my colleagues have argued that the Board should 
have shut down in the wake of the decision.
    Chairman Pearce, why do you feel the Board can continue to 
operate after the Noel Canning decision was issued?
    Mr. Pearce. Thank you, Chairman. In addition to the points 
that you have made, there is also the fact that historically 
the NLRB has functioned in the wake of constitutional 
challenges. We were born of controversy. In 1935 through 1937, 
our legitimacy was challenged in the courts. We continued to 
function. And when the Supreme Court finally decided the issue, 
we still had managed to serve the public.
    But most importantly, we owe it to the public to continue 
to work. Every day the Board provides a forum for workers, 
employees, employers, and unions to come forward and to air 
their issues. This forum ensures that economic security is 
provided and protected from industrial unrest. There is no 
private right to action, as has been said several times. The 
NLRB is the only forum. It is the only recourse that a lot of 
people have.
    The statute of limitations for unfair labor practices 
continues to run. Obligations under the National Labor 
Relations Act are not suspended while litigation goes on over 
the issue of whether or not the Board's composition is correct. 
And such issues hold no countenance for a person who has lost 
their job because they wanted to join a union and they are 
about to lose their home. It does not hold any consequence for 
an employee or worker who was being discriminated against by a 
union because they are not a member of a union.
    The Chairman. Before my time runs out, I want to ask Mr. 
Griffin and Ms. Block a followup to that. Some have suggested, 
in fact requested, that you resign from your positions because 
of the Noel Canning case. Since that is on appeal, I have often 
thought that was an Alice in Wonderland approach, first the 
sentence, then the verdict. I just wonder if you have any 
comment on why you feel that you can continue to function in 
light of the Noel Canning case.
    Mr. Griffin.
    Mr. Griffin. Well, Chairman Harkin, you have indicated the 
conflict that the D.C. Circuit expressed with the other 
circuits and its own decision in Noel Canning with respect to 
the issue of intra-session versus inter-session appointments 
arising during the recess questions. So there is a conflict 
under our system. The Supreme Court decides the conflict. The 
Solicitor General on our behalf has asked the Supreme Court to 
resolve the matter.
    I was appointed and asked to serve. I took an oath to 
serve, and under the circumstances, since the Supreme Court had 
not rendered a final judgment on the constitutional question, 
and for all the reasons that the Chairman indicated in terms of 
the important work that we do, I felt it was very important to 
continue to do the important work of the Board that I took an 
oath to do.
    The Chairman. Ms. Block, do you have anything to add, why 
you feel you should continue to serve rather than resign?
    Ms. Block. Thank you, Chairman. I appreciate the 
opportunity to address that, and I certainly agree with 
everything that my colleagues have said.
    The public that we serve relies on us to give them a fair 
hearing and to bring resolution. So in thinking about how I 
could best uphold my oath that I took to do that and to protect 
the institution of the Board, as my colleagues have said, I 
thought it was incumbent upon me to continue to provide that 
service while these issues were worked out in the litigation. I 
want to share with you a little bit of what my thought process 
was quickly.
    I thought about some of the people who had brought their 
cases to us during the year. We know that during the past year 
and a half, while these issues have been percolating, employers 
have continued to consent to elections, parties have continued 
to settle cases with us. Parties have also not filed petitions 
for review when we have issued decisions.
    So when I thought about some of those people who brought 
cases to us, I thought about a discriminatee in a case, Carrie 
Salt. The employer we found, in a bipartisan, unanimous 
decision of the Board--it was Member Hayes, Member Griffin, and 
myself--the employer had engaged in bad-faith bargaining. They 
just came to the bargaining table, didn't really want to come 
to an agreement, and then started unlawfully imposing 
unilateral actions on the employees throughout seniority. As a 
result of this unlawful action, there was a 73-year-old 
employee who had worked for the employer for 42 years who, as a 
result of these unlawful actions, was forced to change his job 
from being a truck driver on the surface of the mine to working 
11-hour shifts underground.
    He came to us because he wanted a fair hearing, and he 
wanted some resolution. When I thought about him and people 
like him who rely on the Board, in light of the circumstances, 
the ongoing litigation, I felt the best way that I could 
fulfill the oath that I took when I accepted this job was to 
continue to function.
    The Chairman. Thank you both very much. My time is 
obviously out.
    Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman.
    This morning, the Third Circuit Court of Appeals issued a 
decision concluding that an NLRB panel lacked the requisite 
number of members to exercise the Board's authority, because 
one panel member was invalidly appointed during an intra-
session break.
    We have yet another circuit that agrees with the D.C. 
Circuit, and is consistent with the decision of the D.C. 
Circuit, that recess appointments are supposed to be made 
during recesses. Otherwise we have a situation where the 
President can just ignore Article I, the principal curb upon 
the power of the executive.
    I would observe also that while I agree it's better to have 
a quorum, it's better to have five members, and I've said in my 
earlier remarks that I admire the qualifications of all five of 
the individuals here, that my problem is with continuing to 
serve after such an unprecedented lack of respect for the 
prerogatives of Congress and the separation of powers.
    In the meantime, even if there weren't a quorum, the NLRB 
would still be able to function. The NLRB could investigate 
unfair labor practices, prosecute unfair labor practices, and 
conduct elections. Administrative law judges could adjudicate 
unfair labor practices. The General Counsel could issue 
memoranda. So there are a number of actions the NLRB can 
continue to take while matters are resolved.
    You have to balance, it seems to me, the confusion that is 
going to be caused when hundreds of cases are vacated, or 
subject to being vacated, when it is decided that the Board 
decides so many cases without a quorum.
    The chairman noted that there are strong passions, that 
sometimes people on the Republican side wish the NLRB weren't, 
I think you said, ``it's progress if it weren't in session.''
    There are strong passions on the other side, too. I would 
ask to put in the record a New York Times article from 2007. It 
talks about how the union leaders' discontent with the labor 
board had grown so intense that several hundred union 
sympathizers demonstrated in front of the NLRB headquarters, 
chanting shut it down for renovations.
    [The article referred to can be found in Additional 
Material.]
    And so they would be happy if the board did nothing until a 
Democrat was in the White House. And Senator Reid, the majority 
leader at that time, said that the Senate was considering 
holding pro forma sessions of the Senate to prevent President 
Bush from naming Mr. Battista as a recess appointment. Senator 
Reid then did that, and President Bush respected the Senate's 
own decision about when it was in session and when it was not.
    Mr. Pearce, I have a question for you, if I may, about the 
Excelsior list. During an organizing campaign, the current law 
requires employers to provide union organizers with a list of 
employee names and home addresses. This is called the Excelsior 
list.
    You led a regulatory effort to expand that requirement to 
include telephone numbers, email addresses, employee work 
locations, shifts, and job classifications. I would think a lot 
of employees wouldn't want all of that personal information 
shared without their consent and wouldn't want to be harassed 
about whether or not to join a union.
    If you are confirmed, will you continue to pursue this 
broad expansion of information that started with only names and 
addresses? Wasn't that rule adopted at a time when there 
weren't so many other pieces of personal information? A name 
and address was one piece of information, but now you are 
asking for email addresses, telephone numbers, work locations, 
shifts, and job classifications.
    Are you going to continue to insist on that? And if you 
are, why wouldn't you allow employees to at least opt out of 
providing that kind of personal information?
    Mr. Pearce. Thank you, Senator.
    Currently, the board's regulation asks for the Excelsior 
list, requires the Excelsior list, and that was pursuant to a 
decision that is decades old.
    Senator Alexander. Right. Before the Internet invaded our 
privacy.
    Mr. Pearce. Of course. Of course.
    We all are creatures or victims of technology. The National 
Labor Relations Board evolves with the technology. Otherwise, 
it couldn't effectively enforce the act.
    In so doing, it is appropriate and responsible for us to 
look at the technological advances that are typical in the 
communication between workers and between employers.
    Senator Alexander. So you have to have a list of employees' 
email addresses to keep up with modern technology?
    Mr. Pearce. What I am saying, Senator, is that----
    Senator Alexander. Yes or no?
    Mr. Pearce. I can't answer that yes or no.
    Senator Alexander. Good. Maybe there is progress here.
    Mr. Pearce. What I am saying is that all of that has to be 
evaluated and taken into consideration. There is a proposal 
that has not become a rule that is under consideration by the 
Board as to what would be appropriate in this day and age for 
fair and equal contact of employees.
    Now, there are cases that we have decided with respect to 
unfair and unreasonable harassment. And if those circumstances 
come up, those things would be addressed.
    But right now, Excelsior Underwear is the regulation. How 
we evolve from that remains the consideration of the Board.
    Senator Alexander. Thank you for your answer. And I hope 
the Board will think of privacy, as well as technology.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Alexander.
    The list I have is Senator Murray, Senator Isakson, and 
Senator Casey, Senator Scott, and Senator Baldwin, and then 
Senator Warren.
    Senator Murray.

                      Statement of Senator Murray

    Senator Murray. Mr. Chairman, thank you very much for 
holding this hearing. This is not a routine hearing by any 
stretch of the imagination. This is a hearing very much about 
the vision and future of our country. It's a hearing about 
whether we believe the laws of our country that protect workers 
and employers alike should be enforced. It is a hearing about 
the future opportunities we have to have good jobs in our 
economy, protect our shrinking middle class, providing 
opportunities for workers to improve their conditions, and 
ensuring smooth relations between workers and employers to make 
sure that we have an efficient operation of our economy.
    I have heard some claim that this is a hearing about our 
unions. But that is inaccurate, because the NLRB and its 
rulings protect all private sector workers in the American 
workplace, regardless of whether they are in a union, for 
exercising their rights.
    And those rights have led to many significant improvements 
across our economy: higher pay and better benefits, safer 
working conditions, fewer injuries and death, and the strongest 
economy in the world.
    It's no shock that as collective bargaining and the 
unionization rates have declined, wages have stagnated, and 
income inequality has arisen, and our economy has struggled. 
And it's noteworthy that many of these problems arose about the 
same time that a prolonged attack on the NLRB commenced.
    For well over 30 years now, the normal process of 
nominating and confirming board members has been nonexistent. 
Partisan blocking of nominees has now largely prevented this 
Board from operating on a routine basis and has made 
enforcement of worker rights very difficult.
    For 35 years, recess appointments have become all too 
routine. And for nearly 30 years, the Senate has been forced to 
regularly consider packages of nominees in order to get any 
nominees on the Board.
    This is no way to run an agency. And I suspect that is 
exactly why we are where we are now.
    Many people just don't want the NLRB to function at all. 
But I worry about what that says about our values and what will 
happen to our economy and our society if we allow that to 
happen, where workers' rights are protected, where there is one 
fewer check on rising income equality, and where individuals 
are increasingly left on their own in an economy that is very 
indifferent to those without protections.
    That is why I believe it is really important, Mr. Chairman, 
that we move to act quickly, approve this package of five 
nominees, not because I agree with each and every one of them 
individually. I have some concerns about some of the 
individuals. But I don't deny at all that they are all 
qualified and experienced and can and should serve.
    And I thank each one of you for your willingness to do 
this.
    I hope that we can move quickly to this. And I will just 
ask a series of questions, if you can each just respond yes or 
no.
    First of all, do you agree that the Senate should consider 
your nominations as a package?
    Mr. Pearce. Yes.
    Mr. Griffin. Yes.
    Ms. Block. Yes.
    Mr. Johnson. I would like to say that the political and 
constitutional questions are way above and beyond my purview. I 
can only represent myself.
    If I were a Senator, I would confirm me.
    [Laughter.]
    Mr. Miscimarra. I wouldn't presume to advise the Senate 
with respect to how they should address these nominations.
    I will say that the fellow nominees, all of them, have been 
very gracious in my dealings with them. I would be willing to 
serve on the Board with any nominees that the Senate would 
choose to confirm.
    Mr. Johnson. That goes for me as well.
    Senator Murray. Good. Then I will just ask you directly: Do 
you agree that each of the nominees sitting at the table this 
morning is highly qualified to serve and deserves to be 
considered as part of a package?
    Mr. Pearce. Yes.
    Mr. Griffin. Yes.
    Ms. Block. Yes.
    Mr. Johnson. I have no doubt as to all the nominees' 
qualifications.
    Mr. Miscimarra. I agree.
    Senator Murray. Very good.
    And if confirmed, will each of you pledge to meet the 
highest standards of integrity, professionalism, and 
objectivity?
    Mr. Pearce. Certainly.
    Mr. Griffin. Yes.
    Ms. Block. Absolutely.
    Mr. Johnson. Of course.
    Mr. Miscimarra. Yes.
    Senator Murray. All right.
    If confirmed, does each of you agree that your job is to 
apply existing law and congressional intent first, and to 
recognize that while each of you brings different experiences 
and background, to not allow your personal biases to interfere 
with your impartial application of the law?
    Mr. Pearce. Yes.
    Mr. Griffin. Yes.
    Ms. Block. Yes.
    Mr. Johnson. Of course, squared.
    Mr. Miscimarra. Yes.
    Senator Murray. Mr. Chairman, I think that says very 
specifically to us as a committee that this is a group that is 
highly qualified and that we should move forward as a package 
to confirm.
    I would just add one thing, and that is I spoke a minute 
ago about the growing income inequality. Pay equity is a very 
important tool for American women to help close the income gap. 
I want to submit for the record a letter from 30 organizations 
concerned about what women are paid and pay equity, and are 
calling for a smoothly functioning NLRB. And it says why we 
need to move all five nominees quickly and confirm them.
    Thank you, Mr. Chairman.
    The Chairman. Without objection, we will include those.
    [The information referred to can be found in Additional 
Material.]
    The Chairman. Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman.
    Welcome to all of the nominees.
    Chairman Pearce, thank you for your service. I have a 
question for you.
    Under your leadership as chairman, or during your term as 
chairman, why did the NLRB undo decades of precedent in the 
Specialty Healthcare decision?
    Mr. Pearce. Specialty Healthcare was a decision involving 
certified nursing assistants. These were 53 certified nursing 
assistants that wanted to unionize to form their own bargaining 
unit without having people in the cafeteria or people in other 
areas of the facility that had nothing to do with their jobs be 
included in the unit.
    What we did do was apply traditional standards to assessing 
what an appropriate unit is.
    It has been a tenet of the law that we determine an 
appropriate union, not the most appropriate unit. And these 53 
people were just that.
    The National Labor Relations Board's decision was 
consistent with assessments of what would be an appropriate 
bargaining unit where we're consistent with what the courts 
have considered. The D.C. Circuit in Blue Man Vegas made the 
determination that our assessment and the factors that we take 
into consideration were the correct ones.
    Senator Isakson. Then let me ask you this question, taking 
the term ``appropriate,'' which were the words that you used, 
that you considered, your regional director, following that 
decision, ruled that the second and fifth floor shoe 
departments of Bergdorf Goodman could form a union. Was that 
appropriate, in the same context that the Specialty Healthcare 
was?
    Mr. Pearce. The assessment, again, was whether or not there 
was a sufficient community of interest to constitute a 
bargaining unit.
    The median bargaining unit in this country is 27 employees. 
The Bergdorf Goodman group was much larger than that. So if 
nothing else, we remained consistent with what the median has 
been in this country.
    Senator Isakson. But is it appropriate--excuse me, I don't 
want to lose all my time--is it appropriate, in the sense of 
common sense, to allow micro-unions within a single 
establishment, to have multiple unions that you have to deal 
with in terms of all negotiations, the limitation that puts on 
cross-training for employees to serve in different departments 
within the same building, in the same unit?
    It seems to me, taking the Specialty Healthcare decision, 
if appropriate, and applying it to a retail establishment with 
a plethora of different departments within it, and saying each 
one of them can organize and bargain as a unit, is 
counterproductive to consistency, customer service, and the 
health of the environment in which the people live and work.
    Mr. Pearce. This is all fact specific. Each case is 
assessed based on its particular facts.
    For example, we decided a case in Home Depot where we 
determined, using that same Specialty Healthcare standard, that 
a unit of the entire staff of employees was the appropriate 
unit. Furthermore, employers have used Specialty Healthcare to 
assess whether or not their petitions for units have been 
correct.
    One case, Odwalla, which was a petition for a group of 
employees that carved out another set of employees, it was the 
employer who cited Specialty Healthcare for the proposition 
that there was an overwhelming and community of interest 
between the excluded employees and those that had been included 
in the unit, and we agreed with them.
    Senator Isakson. Thank you for your answer.
    Mr. Griffin, let me ask you a question, and I guess Ms. 
Block as well. And thank you for your comments in your 
statement about the MINER Act. You did outstanding work, as did 
Senator Murray and Senator Kennedy and Senator Enzi, on that 
piece of legislation.
    You both were publicly nominated for your position in 
December before the January appointment, is that correct?
    Mr. Griffin. That is correct, Senator.
    Senator Isakson. As I understand it, the paperwork had not 
even gotten to the committee to go through the confirmation 
process by January 4, when you were appointed in a recess 
appointment, is that correct?
    Mr. Griffin. I don't know what the status of the paperwork 
was, Senator. We had completed all the forms that we were 
responsible for when we were nominated.
    Senator Isakson. I think I am correct in both of those 
statements. Assuming that I am, do you know of any reason why 
the President chose, when he could have waited 10 more days and 
gone through the regular order, to go ahead and make a recess 
appointment on January 4, given the fact you had been nominated 
on the 11th of December?
    Mr. Griffin. Senator, I was not consulted by the President 
with respect to his exercise----
    Senator Isakson. You wouldn't know one way or another.
    Mr. Griffin. But the one thing that I will point to is 
that, because member Becker's appointment was up January 3, the 
Board could not function. It was down to only two Board 
members.
    So in order for the Board to function, it was necessary for 
the President to act, so that there would be a sufficient 
number of Board members to process the Board's business.
    Senator Isakson. Other than that reason, Ms. Block, do you 
know of any reason why they would move ahead and expedite the 
appointment?
    Ms. Block. No. Like member Griffin, I wasn't consulted 
about the decision.
    Senator Isakson. OK.
    Thank you, Mr. Chairman.
    The Chairman. Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Mr. Chairman, thank you very much.
    I want to thank all of the nominees for your willingness to 
serve, your appearance here, and of course the commitment and 
sacrifice of your families. We are grateful for that.
    I think in this hearing and throughout what will be a long 
debate about these issues, it is instructive, and I think, more 
than that, essential to recall at least two eras of our 
history. One, the bad news, the before; and then the good news, 
the after--before and after the National Labor Relations Act 
was enacted.
    The bad news played out in my home State of Pennsylvania in 
ways that probably no other State can match, unfortunately for 
Pennsylvania, where you had for decades, for generations, 
awesome corporate power that didn't allow workers to have--
forget having a union--didn't allow them to have basic rights 
and would grind people into the pavement on a regular basis.
    That was the history of our State. Homestead in Pittsburgh 
is one example of that.
    I grew up in northeastern Pennsylvania, where anthracite 
coal miners' lives were completely dominated by a company, the 
kind of low-wage servitude which we can't even imagine today.
    That was the history prior to the enactment of the National 
Labor Relations Act.
    The good news is the country took a turn in the right 
direction after a lot of struggle and a lot of blood and 
literally people dying.
    Chairman Harkin was mentioning before about the declared 
policy in the act itself. The declared policy of the United 
States, ``to eliminate the causes of certain substantial 
obstructions to the free flow of commerce''--the free flow of 
commerce--``and to mitigate and eliminate these obstructions,'' 
and it goes on from there.
    Earlier in the findings, it says this,

          ``Experience has proved that protection by law of the 
        right of employees to organize and bargain collectively 
        safeguards commerce''----

Commerce, I will say it again,

        ``from injury, impairment, or interruption, and 
        promotes the flow of commerce by removing certain 
        recognized sources of industrial strife and unrest.''

And it goes on from there.
    When we talk about the Act, when we talk about the Board 
that carries out the requirements of the Act, we are talking 
about commerce. We are not talking about one side being favored 
over the other.
    I think it is important that we remember that. We should 
also remember, I think, the history of some of our Presidents. 
We have had Democratic and Republican Presidents using recess 
appointments for a generation at least.
    In fact, if you look at the record, whether it was an 
intra-session recess appointment or inter-session, every 
President since Reagan has recess appointed a member to the 
Board.
    Ronald Reagan made 240 recess appointments. Bill Clinton 
made 139. George W. Bush, 171. And George H.W. Bush, 74.
    So as we debate this, we should remember our history and 
make sure that we don't go in the direction where we were at 
the turn of the last century. Unfortunately, we have been 
taking a turn in that direction lately.
    What are we confronted with now? Today we have a conflict 
about the National Labor Relations Board. It is a political 
conflict. Some might call it an ideological conflict.
    What we don't need now--the last thing we need here in 
Washington or across the country--is more rancor, more 
division, more ideology, at a time we need this 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, certainly in light of that history, but also 
in light of the urgency of today, which is to have the free 
flow of commerce and the jobs that come from that.
    We have a lot to cover, and I know my time is just about 
over, but I will submit some questions for the record. But I do 
want to, first of all, thank the first person I'll question, 
and then I'll submit other questions, Mr. Miscimarra, for your 
mentioning of various parts of Pennsylvania, but more 
importantly growing up in Pittsburgh and having a lot of 
education in Philadelphia.
    I want to thank you especially for the words in your 
statement about common ground, about being open and having an 
open mind. And I would ask you, in the context of that, and I 
know we are short on time, I would just ask a very specific 
question about the Board itself. Do you support the Board's 
rulemaking authority?
    Mr. Miscimarra. The Act specifically authorizes the Board 
to engage in certain types of rulemaking. The Board is 
engaged----
    Senator Casey. Give me a yes or no to that, and then, of 
course, you can----
    Mr. Miscimarra. I do, and I believe any consideration of 
rulemaking, if I were concerned, would depend on a couple of 
things. It would be a careful consideration of the need for the 
rule, also the authorization in the Act for any rulemaking, the 
content of any rule, and the process adhered to or followed by 
the Board for purposes of getting input and otherwise complying 
with the requirements of the Administrative Procedures Act.
    Senator Casey. I have more questions, but I am way over 
time now.
    The Chairman. Thank you, Senator.
    Senator Scott.

                       Statement of Senator Scott

    Senator Scott. Thank you, Mr. Chairman.
    Thank you all for taking the time to meet with me this 
week. And certainly, this is a time in our history when public 
service is not necessarily as comfortable as it used to be, so 
I truly appreciate your willingness to continue to serve.
    And while we will obviously have some disagreements with 
our questions, our goal is to make sure that we continue to 
find the ability to have our economy firing on all cylinders.
    When I think about the recent days, it seems to me that the 
rule of law has been under attack. We have seen in the news the 
IRS. We have seen the AP phone records scandal. The HHS. And 
these issues have undermined the confidence the American people 
should have in their government.
    And when I think about the NLRB over the past few years, 
this seems to be a Board that has been about picking winners 
and creating losers through its decisions in the two rules.
    The NLRB should be a neutral arbitrator, an impartial and 
unbiased board protecting the rights of both the employers and 
employees. But instead, the Board has become an activist board, 
from my perspective.
    Several examples of such, when we look at things like the 
rule on deducting union dues even after the agreement has 
ended, it appears to me that there is a theme that suggests 
that we are no longer looking at an impartial board, but a 
board that has within its intent the desire to create an 
outcome. Forcing employers to continue to deduct union dues 
after a bargaining agreement has expired seems to me to 
overturn 51 years of precedents.
    The second issue that we just discussed was the case of 
micro-unions. As few as two employees with the same 
classification having an opportunity to form a union seems to 
strip away some of the opportunities and the authority of the 
employers.
    I think of, specifically, the Northrop Grumman 
Shipbuilding, where 223 technicians out of 2,400 employees 
formed what I would consider a micro-union. This is 
troublesome, from my perspective.
    The third example is the courtesy work rules. I think that 
was the case where a motor company, Knauz Motors, Inc., had a 
courtesy rule that was struck down. This was, to me, just a 
common sense rule.
    As a former employer, I will tell you that this is just 
mind-boggling, from my perspective. I read what the rule was:

          Courtesy is the responsibility of every employee. 
        Everyone is expected to be courteous, polite, friendly 
        to our customers, our vendors, our suppliers, as well 
        as to their fellow employees. No one should be 
        disrespectful or use profanity or any other language 
        which injures the image or reputation of the 
        dealership.

    The Board found this to be unlawful, continued that 
employees would reasonably believe that this prohibits 
statements of protest or criticism of the employer.
    That, to me, just boggles the mind, when in fact, a common-
sense courtesy rule has been the practice forever in business. 
You want your employees to be as courteous as possible. Yet 
that simple rule was struck down and found to be unlawful.
    I think of the notice of posting rule that requires the 
display of posters making sure that employees know that they 
can join unions. It would seem that if you were looking for a 
balanced approach, not picking winners or losers, you would 
have a poster that said that you could decertify a union as 
well.
    A fifth example would be the ambush or the quickie 
elections. We see the average election, I understand, takes 38 
days. And yet, with the ambush elections, we whittle it down to 
10 days. That does not provide the employer or the employee to 
go through the process of making a sound decision.
    And finally, I know this is not a case that the NLRB, the 
Board itself, decided on, but without question, when you look 
at the opportunity to create a better economy, without any 
question, you look no further than the Boeing case when the 
general counsel made a decision to try to shift jobs away from 
one State to another State.
    My question to you is, how can we expect the Board to 
return to being a neutral arbitrator when there are so many 
examples of anything but an impartial application of the law?
    Mr. Pearce.
    Mr. Pearce. Thank you.
    I respectfully disagree with the premise of your question 
that we are not a neutral arbitrator. We have been a neutral 
body, and I speak for my colleagues to say that this Board has 
made its decisions with full integrity.
    Remember, half of my career I was a field attorney with the 
National Labor Relations Board. That is what I did. I enforced 
the Act.
    You listed several different areas that you have taken 
issue with. I have to say with respect to rules, and you cited 
the courtesy rules, rules are the province of the employer. The 
employer has a lot of control over their workplace, and the 
Board respects that.
    Any rule, however, that is so vague as to infringe upon or 
tends to infringe upon the section 7 rights of their employees 
to engage in protected, concerted activity will be scrutinized 
and considered problematic if a reasonable employee can 
conclude from reading that rule that the protected activity 
under the law, a law decided by Congress, that protected 
activity under the law would be curtailed.
    Senator Scott. Thank you, Mr. Pearce.
    Let me just end with this: I want to once again read this 
rule. That, to me, is interesting, your response.
    Courtesy is a responsibility of every employee. Everyone is 
expected to be courteous, polite, and friendly to our 
customers, vendors, and suppliers, as well as to fellow 
employees. No one should be disrespectful or use profanity or 
any other language which injures the image or reputation of the 
dealership.
    I would simply suggest, sir, that this, I would not 
consider vague. And I do not see how this has to be struck down 
or found unlawful.
    Thank you, sir.
    The Chairman. Thank you, Senator Scott.
    Senator Baldwin.

                      Statement of Senator Baldwin

    Senator Baldwin. Thank you, Chairman Harkin. And thank you 
for holding this hearing on the five individuals before us to 
sit on the National Labor Relations Board.
    I am very pleased that we are holding this hearing today 
with the nominees in attendance. But as a new member of this 
body, I am baffled that the Senate has failed to confirm 
members to the National Labor Relations Board in many, many 
years.
    The main purpose behind the NLRB is rather simple, to 
administer the National Labor Relations Act, and certainly to 
provide a venue to remedy unfair labor practices.
    Yet, I fear that some of my colleagues believe that it is 
more important to ensure that the NLRB is not able to function 
properly. And that is deeply disappointing.
    I am hoping that this nomination hearing is a step in the 
right direction of ensuring that millions of private sector 
workers in America have a place that will provide a remedy to 
such unfair labor practices that are found to exist.
    I strongly support a fully functioning NLRB with five 
numbers. I think confirming the entire slate will ensure that 
the NLRB is working for American workers and American 
employers.
    I hail from a State which has had a lot of focus recently 
on collective bargaining rights, particularly in the public 
sector. I know we are here with a focus on the private sector, 
but Wisconsin has certainly been an area where many citizens 
have tuned into the importance of collective bargaining.
    I think many believe the collective bargaining between 
employers and unions is just about a fight over money. And my 
experience is that collective bargaining often encompasses more 
than just dollars. And I wonder if you can all speak to the 
examples of the kinds of concerns that you have seen, and 
issues around negotiations, that are beyond compensation.
    As I said, we've gotten a quick study on all of those 
issues in the public sector in the State of Wisconsin. You have 
expertise in the private sector. I know there are five of you. 
Our time is limited, but why don't I start with you, Chairman 
Pearce, to address that topic.
    Mr. Pearce. I would just point out one example that 
apparently is very germane to the consideration of this 
esteemed body, and that is the Noel Canning case. In Noel 
Canning, it was determined by this Board that a negotiated 
collective bargaining agreement that an employer refused to 
execute constituted a violation of the law. That was agreed to 
by the D.C. Circuit Court.
    They agreed that our assessment of the unfair labor 
practice was the correct one.
    I'll turn this over to my colleague.
    Mr. Griffin. Certainly, there are many areas of collective 
bargaining that are other than wages--health care benefits, 
pension benefits.
    In my service prior when I worked for the Operating 
Engineers Union, a major focus of negotiations was jointly 
trusteed training funds that train people on heavy equipment 
and on new pieces of equipment. And when you work out of a 
hiring hall in the construction industry, the more pieces of 
equipment that you know how to operate, the more employable you 
are, and the more valuable you are and the more able you are to 
support your family.
    So that was a focus of negotiations, because these pieces 
of equipment are very expensive. Employers want people to be 
adequately trained. Financing and providing training was a 
major portion of the collective bargaining with respect to the 
union that I represented.
    Ms. Block. I would add that this is one that I think is 
incredibly important. It's something I had some experience with 
when I worked with the committee. It's safety and health.
    We actually recently had a case where we upheld the right 
of the union to bargain with the employer over access to a 
workplace where there had been a fatal accident, and the union 
thought it was important for them to be able to come in and see 
the scene of the accident in order to ensure that the employees 
who remained in the workplace had a safe and healthful 
workplace.
    I think we frequently see safety and health issues raised 
in collective bargaining, again, completely apart from any 
monetary interest but, really, a vital employee interest.
    Mr. Johnson. Thank you, Senator.
    Really quickly, I would echo that safety is an important 
issue that is frequently addressed in collective bargaining. 
But things sometimes come up in contracts that wouldn't 
necessarily spring to mind immediately.
    Some employers, employees, there was the case recently that 
the Board adjudicated involving a cell phone policy. Under what 
circumstances can you make calls from your work phone?
    Mr. Miscimarra. I will just briefly add that in my career, 
I have seen a multitude of issues, ranging from innovative 
health care solutions, issues with technology and training, 
very difficult specific customer issues or manufacturing 
problems that have been dealt with jointly at the bargaining 
table.

                      Statement of Senator Sanders

    Senator Sanders. Thank you very much, Mr. Chairman.
    Let me say from the onset that I think we have five 
qualified candidates, and I intend to support them.
    What I think these candidates know, and everybody up here 
knows, this discussion is not about them. They are qualified. 
They should be voted out. They should take their position 
immediately.
    What this debate is about is Republican obstructionism. As 
soon as I leave this meeting, I am going to the Environment and 
Public Works Committee meeting, which I sit on the Environment 
and Public Works Committee, to see if we can get Gina McCarthy 
appointed as EPA director.
    At the last meeting, Republicans did not show up at that 
meeting. They boycotted it.
    Mr. Chairman, let me just quote from an article written by 
James Fallows on the Atlantic Web site. This is what he said,

          ``Since the Democrats regained majority control of 
        the Senate 6 years ago, the Republicans under Mitch 
        McConnell have applied filibuster threats under a 
        variety of names at a frequency not seen before in 
        American history. Filibusters used to be exceptional. 
        Now they are used as blocking tactics for nearly any 
        significant legislation or nomination. The goal of this 
        strategy, which maximizes minority blocking power in a 
        way not foreseen in the Constitution, has been to make 
        the 60-vote requirement seem routine.''

That is what Mr. Fallows said.
    Senate Republicans have been intent to bottleneck, 
obstruct, delay, and derail nearly every order of Senate 
business as part of a dedicated political strategy.
    In fact, since Democrats took control of the upper chamber 
in 2007, the Senates of the 110th, 111th, and 112th Congress 
witnessed the three highest totals of filibusters ever 
recorded.
    So what we are seeing here is nothing new. You guys just 
happen to be in the way right now. It has nothing to do with 
you personally, so do not take it personally.
    What we are seeing now on almost every single level is to 
make government dysfunctional. And everybody knows, and I know 
my good friend Senator Alexander, and he is a good friend, 
understands this is a political tactic.
    And I am not here to criticize that tactic. You are in the 
minority. You are using your position to advance your ideas in 
the best way that you can. I think it is a great disservice to 
the American people, but you are doing what you can in terms of 
using the rules.
    Now the real question is, what does the majority do? That, 
to me, is the question. The minority is doing everything it can 
in this case to make it impossible for working people who are 
on the job to have their rights protected, so that tomorrow if 
some fellow out there, some woman out there, tries to organize 
a union, gets fired against the law, that worker will have no 
recourse.
    If an employer abuses an employee against the law, that 
worker will have no recourse.
    The function of the NLRB is to protect the rights of 
workers in terms of labor negotiations, and the right to form a 
union. If there is no NLRB, those workers will have no rights, 
and I think that is a terrible, terrible thing.
    But that is very clear about what the Republicans want. We 
shouldn't beat around the bush. These are qualified candidates. 
They should be allowed to do the job that the NLRB provides for 
them to do.
    Now the question, Mr. Chairman, is what happens. My guess 
is that they will in fact get a majority vote out of this 
committee, probably with everybody on this side voting for 
them, everybody on that side voting against them. Their 
nominations will then go to the floor of the U.S. Senate.
    Everything being equal, our Republican friends will once 
again filibuster and demand 60 votes. We will not get 60 votes.
    The NLRB come August, I believe, will then become 
dysfunctional, and millions of workers will lose the 
protections that have been enshrined by law for decades. What 
happens then?
    I am not here to criticize the Republicans. They are doing 
what they believe is best. It is part of a long-term strategy 
to obstruct, make it impossible for the President or any of us 
to do what we is think is right, in terms of protecting, in 
this case, American workers.
    Mr. Chairman, let me suggest to you what I think we should 
do. If, once again, this effort is obstructed, if the goal is 
to prevent the NLRB from functioning in terms of protecting the 
rights of American workers, I think we should change the rules 
and take a majority vote to not only see that these people are 
seated so that they can do their job, but that other nominees 
who have been clearly obstructed also have a chance to do their 
job.
    I think the American people see this institution as 
dysfunctional and one of the main reasons is that the minority, 
who has every right in the world to make their case--if Senator 
Alexander wants to go on the floor for 15 hours, I will support 
his right to do that.
    But at the end of the day in America, majority is supposed 
to rule. That's what elections are about. We won with a 
majority rule. The President won with a majority.
    The majority does not rule anymore, and millions of working 
people are suffering as result.
    So, Mr. Chairman, here is my suggestion. If these nominees 
in fact get the votes that they need, which I suspect they 
will, they go to the floor, I will be very distraught if we do 
not seat them because of another filibuster.
    And I would hope that we would use the rules of the Senate 
so that majority rules. And if we need 51 votes to seat them, 
let us do it.
    Thank you, Mr. Chairman.
    The Chairman. Senator Alexander's name was invoked. I will 
recognize him.
    Senator Alexander. Thanks, Mr. Chairman.
    I respect the Senator from Vermont. He has a different view 
of the Senate than I do.
    I was reading John Meacham's book about Thomas Jefferson 
the other night, and there was an evening when Jefferson and 
Adams sat down after dinner. And I am paraphrasing very 
carefully from memory, but Adams said to Jefferson, Jefferson 
wrote, that ``without a Senate, we would lose the Republic.''
    The idea that a popularly elected assembly majority vote 
could protect our liberties is a chimera of the imagination. So 
our Founders have always envisioned the Senate as different 
than a majority rule body.
    You go over to the House of Representatives. They have a 
Rules Committee, and if you win the House of Representatives by 
one vote, you have nine Democrats in the majority and four 
Republicans. That is a majority body and it runs like a fast 
train through there.
    And if we had a majority party here, why then you would 
have the tea party express run through the Senate and then some 
liberal group the next Congress. So that is just a different 
view.
    As far as filibusters go, I introduced into the record 
earlier the information from the Washington Post that on March 
18, President Obama's Cabinet nominations have been treated 
more rapidly than the last three Presidents in the second term. 
By now, I suppose it would be about even.
    And I would remind the Senator that the number of Supreme 
Court justices in the history of the Senate who have been 
defeated by a filibuster, who have been denied their seats by a 
filibuster has been zero.
    The number of district judges who have been defeated, who 
have been denied their seat by filibuster is zero. The number 
of Cabinet members who have been denied their seat by a failed 
cloture vote is zero. And the number of circuit judges who have 
been denied their seat by cloture votes is five Republicans, 
all started by the Democrats in the 1990s, and two Democrats.
    So I favor up or down votes. And this dispute is about 
respect for Article I. I won't repeat that since I said it 
earlier.
    I respect the Senator's different view of the Senate, but I 
disagree with it.
    Senator Sanders. If I could, very briefly, I understand 
where Senator Alexander is coming from. But when one party 
chooses to use the rules in an unprecedented way to make this 
institution dysfunctional, then I think we have to look at new 
ways.
    Senator Alexander. Mr. Chairman, the President has made 
recess appointments in an unprecedented way when there wasn't a 
recess. I mean, if Senator Byrd were here, I think he would be 
talking about that.
    Senator Sanders. We have strong disagreements. Thank you.
    The Chairman. Really.
    Senator Warren.
    Senator Warren. Thank you very much, Mr. Chairman.
    Mr. Chairman, I actually have to start out I think here 
with an apology, and that is to Charlie Griffin.
    When I welcomed Mr. Griffin, I welcomed his wife and his 
daughter. Charlie, I did not know you were here, so you are 
very welcome here. And we are very pleased you are here.
    I hope you are enjoying this.
    [Laughter.]
    I will add, though, into this. I am very concerned when 
Senators use procedural technicalities or filibusters to block 
any nominations to the NLRB. This is not based on any 
substantive problem with the nominees but on fundamental 
hostility to the work of the Board.
    Like the consumer agency, the Environmental Protection 
Agency and the Department of Labor, the NLRB is an agency of 
the Federal Government that was created by Congress. Its 
existence is part of our Federal law. And yet, the NLRB 
nominees face the same problems that Rich Cordray has faced at 
the consumer agency, that Gina McCarthy faces at the 
Environmental Protection Agency, and that Tom Perez faces at 
the Department of Labor.
    This is about complete obstructionism because a minority of 
Senators don't like the agencies, and they don't like the work 
these agencies do.
    In my view, this kind of a obstructionism is a violation of 
the Senate's fundamental constitutional role to advise and 
consent on nominations.
    By all means, Senators can vote against nominees with whom 
they disagree. But these nominees deserve a vote, and I hope 
they get a vote. And I think that's what this is about today.
    I also want to make it clear, we have heard from five 
qualified individuals who will be voted on as a package. I 
certainly don't agree with the views of all five of the 
individuals. I find it very troubling, for example, that one of 
the nominees was hired by the Chamber of Commerce specifically 
to curb the NLRB's regulatory authority. But this is not about 
whether I agree or any of us agree with individual views of the 
ideology of each nominee.
    This is about whether or not the NLRB can function at all. 
It is about giving both workers and employers a fair chance to 
have their voices heard and their disputes resolved. That's 
what we are here today to move forward.
    And I will support a package of five nominees.
    Now, I have a couple questions, but one of them comes from 
what Senator Scott raised. He seemed to imply that the NLRB is 
working hard to make sure that all employees in America are not 
courteous. And I surely think that cannot be the case.
    So I tried to find out what I can about the case in 
particular that he talked about. And there are two parts to it 
that interested me.
    The first is that--I understand that the Karl Knauz Motors 
case is the one we are talking about here--is a case where the 
employee used social media that affected the employer, 
complained about his or her job. And in that case, the NLRB 
ruled that the company could terminate the employee for 
derogatory comments about the company. Is that correct?
    Mr. Pearce. Yes. I'd like to clear a couple of things up.
    First of all, if I can say a little bit about that courtesy 
rule. We do not have an issue with courtesy. We had an issue 
with the sentence that said, prohibiting saying anything 
unfavorable about the employer, was the problem.
    And consequently, that rule had to be dealt with because of 
that vagueness.
    Now Karl Knauz, with respect to the social media piece, you 
had two postings. One posting was by the salesman of a video of 
the son of the customer, a 13-year-old son of a customer, 
jumping into the car that the customer had just test drove, 
running over his father's foot and crashing the car into a pond 
at the dealership. And the posting was ``whoops.''
    The other posting, this was a BMW dealership and they were 
having a promotional celebration. They were offering water and 
hot dogs. That posting was: What kind of low-rent outfit is 
this? Words to this effect. We're trying to sell fancy cars, 
and this is what they're offering to the customers.
    Now, the first posting involving the accident was the 
posting that was the basis for which the employer terminated 
the employee. We concluded that that was not protected 
activity. That was done on an individual basis as a lark. It 
was kind of snarky. It had nothing to do with terms and 
conditions of employment. Consequently, we found there was no 
violation.
    With respect to the hot dogs----
    Senator Warren. I am sorry, let me just make sure, for all 
of us who don't do labor law all the time, it means the 
employer could fire the employee for that posting?
    Mr. Pearce. That's right.
    Senator Warren. Thank you.
    Mr. Pearce. And the other one about the hot dogs, we 
reserved on it, because it wasn't in front of us.
    Senator Warren. OK, good. I just wanted to be clear about 
what's happening to the American workplace. Thank you.
    Mr. Chairman, I see I am out of time. I will submit 
questions for the record.
    Thank you all very much. And I do want to say again, I know 
this is tough, to take on public service like this, 
particularly now, and particularly when there are much larger 
debates that go on that are not having to do with you 
specifically.
    I am grateful to all of you for your willingness to serve, 
and I have no doubt that all five of you would serve the NLRB 
and serve this country well.
    Thank you.
    The Chairman. Thank you, Senator.
    Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Sorry, I'm going to be able to ask only 
one question. I have to get back to the Judiciary Committee, 
and I'm sorry that I missed the rest of the hearing.
    How's it going?
    [Laughter.]
    First, I want to thank all of you for agreeing to serve on 
the National Labor Relations Board. This Board plays the 
important role of protecting the rights of both employers and 
workers. However, the lack of a full board and the D.C. 
Circuit's Noel Canning decision has hampered the Board's 
ability to protect these rights.
    Susie Stetler is one of the workers waiting for her rights 
to be vindicated. Susie is a school bus driver from Elk River, 
MN. She was terminated because her employer wanted to ``get rid 
of '' employees who previously tried to organize a union. The 
NLRB found that Ms. Stetler's rights had been violated and 
ordered the company to rehire Ms. Stetler and provide back pay.
    Ms. Stetler's employer appealed the NLRB decision to the 
D.C. Circuit. Because of the Noel Canning decision, the court 
will not rule on the merits of her case. It is now 8 months 
after the NLRB decision. Susie has not been rehired. She is 
still waiting for $40,000 in back pay.
    Either Mr. Griffin or Ms. Block, if the Senate confirmed a 
full five-member board, what would that mean for workers like 
Ms. Stetler, who are waiting for their cases to be resolved? 
And would it keep future workers from being put in that same 
horrible situation of waiting?
    Ms. Block. Thank you, Senator. I remember Ms. Stetler's 
case.
    I think if we were to be confirmed as a Board, we would 
have to figure out what to do about the pending cases. But I 
think your second point is absolutely right and crucial, that 
there would not be any more Susie Stetler's, because we would 
be able to move forward, make our decisions, and then seek 
enforcement in the Courts of Appeals, and get, essentially, an 
up-and-down vote from the court as to whether we made the right 
decision under the labor law or not.
    Mr. Griffin. I agree with member Block completely.
    The answer to the uncertainty that is caused by the 
constitutional challenge under Noel Canning is to have a 
confirmed board.
    Senator Franken. OK, thank you. I'm sorry I have to go back 
because I have an amendment that I have to introduce in the 
Judiciary Committee, but thank you all.
    I had questions for you guys too.
    It was nice meeting you, Mr. Johnson, before.
    Mr. Miscimarra, I'm sorry I did not get a chance to meet 
you.
    Mr. Miscimarra. Likewise.
    Senator Franken. But good luck. It seems like everything is 
falling into place.
    [Laughter.]
    The Chairman. I thank everyone, for your attendance and for 
the questions.
    I thank the nominees for being here. And for their 
willingness to serve.
    I am almost tempted to engage in a little bit of give-and-
take on the constitutional background of the U.S. Senate, but I 
will reserve that for some other time on the floor or 
something.
    I have just been involved in trying to get rid of the 
filibuster for 20-some years, so I do have views on Senate 
rules and the ability of the minority to block legislation. I 
would just say very succinctly that I have long felt that there 
should be a rule for the Senate to be able to slow things down, 
not to rush to judgment, to be able to have due deliberations 
so that the rights of the minority are not run roughshod over.
    But in the end, at some point, the majority must be enabled 
to act. It should be the right of the minority to be able to 
amend, to offer amendments, and, yes, to be able to slow things 
down, to get the public aware of what the majority is trying to 
do. But not to, in the end, be able to absolutely stop 
something with a minority of the vote.
    But that is one person's opinion.
    Again, I thank you all very much. I am hopeful that we can 
move these nominations very rapidly, with the concurrence of 
our Ranking Member. I hope to be able to move them sometime 
very soon.
    The record will remain open for 10 days. Written questions 
must be submitted by close of business of this Friday, and then 
we will keep the record open for the responses to those written 
questions. But after 10 days, we will do our duty and move the 
nominees.
    Again, thank you all very much. Does anyone have anything 
else they wanted to add before we adjourn?
    Mr. Johnson. Thank you for your time, Senators. Thank you 
very much.
    The Chairman. I am sorry, Mr. Johnson.
    Mr. Johnson. I just said thank you for your time, Senator.
    The Chairman. Thank you.
    It was Senator Leahy who first said this, maybe it has been 
around longer than that. But he once said that ``Senators are a 
constitutional impediment to the smooth functioning of staff.''
    [Laughter.]
    I just learned that we are moving the nominees next 
Wednesday morning, so thank you.
    The committee will stand adjourned.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                [The New York Times, December 14, 2007]

                Critics Say Labor Board Favors Business

                         (By Steven Greenhouse)

    Senate and House Democrats attacked the Republican-led National 
Labor Relations Board at a congressional hearing on Thursday, saying 
its recent decisions had favored employers over workers.
    The Democrats focused on 61 board decisions issued in September 
that, among other things, made it harder for unions to organize workers 
and harder for illegally fired employees to collect back pay.
    ``This board has undermined collective bargaining at every turn, 
putting the power of the law behind lawbreakers, not law victims,'' 
said Senator Edward M. Kennedy, the Massachusetts Democrat who is 
Chairman of the Senate Health, Education, Labor, and Pensions 
Committee.
    At the hearing. Wilma B. Liebman, a Democratic member of the five-
member board, which oversees unionization rules for workers in private 
industry, repeatedly clashed with the board's Republican chairman, 
Robert J. Battista.
    ``Virtually every recent policy choice by the board,'' Ms. Liebman 
said, ``impedes collective bargaining, creates obstacles to union 
representation or favors employer interests.''
    Mr. Battista, whose term expires Sunday, took strong issue with the 
Democrats' criticism.
    ``Notwithstanding the special interest group rhetoric we may be 
hearing about the N.L.R.B., the agency is carrying out its statutory 
mission,'' said Mr. Battista, a labor lawyer from Detroit who 
represented many corporations.
    He said the labor board had significantly cut delays in handling 
unfair labor practice cases and had collected $110 million in back pay 
last year for workers who had been improperly retaliated against for 
union activity.
    The White House has remained mum on whether it will reappoint Mr. 
Battista. A senior Democratic Senate staff member said yesterday that 
Democratic Senators were likely to resist confirming him.
    Republican leaders mocked the combined hearing by House and Senate 
members, saying it was improper to summon members of an adjudicatory 
panel before Congress to defend their decisions. The Republicans 
asserted that the hearing was reward to organized labor for helping 
Democrats in their campaigns.
    Representative Howard P. McKeon of California, the ranking 
Republican on the House Education and Labor Committee said,

          ``Today's hearing is a transparent attempt by Democratic 
        leaders to appease the labor union special interests that 
        helped put them in office by attacking decisions of the 
        N.L.R.B. that they do not view as sufficiently pro-union.''

    Labor leaders are pressing the Democratic presidential candidates 
and congressional Democrats to back legislation that would make it far 
easier for workers to unionize.
    In the decision that came under fiercest attack yesterday, the 
labor board ruled 3 to 2 in September that when a company agrees to 
grant union recognition after a majority of workers sign cards or a 
petition saying they want one, an election must be held--in effect 
vacating the union recognition--if 30 percent of the workers sign 
another petition within 45 days saying they want a vote to get rid of 
the union.
    Ms. Liebman and the Democratic legislators said that the decision 
showed an anti-union tilt and that it gave 30 percent of the workers 
the power to overrule majority sentiment. Mr. Battista defended the 
ruling, saying it merely gave workers the chance to vote in a secret 
ballot election on whether they wanted to keep the union.
    Several Democrats accused the board's majority of hypocrisy because 
on the same day it decided this case it issued another ruling that 
allowed a company to cut off recognition of its union after a majority 
of workers submitted a petition seeking a vote to get rid of it. The 
Democrats asked why the labor board did not insist on a secret ballot 
election under such circumstances.
    The union movement's discontent with the labor board has grown so 
intense that several hundred union sympathizers demonstrated in front 
of the board's Washington headquarters last month, chanting that it 
should be ``shut down for renovations.''
    Labor leaders say they would be happy if the board did nothing 
until a Democrat was in the White House. In addition to the expiration 
of Mr. Battista's term Sunday, the appointments of two other members 
end later this month when the congressional session ends.
    An aide to the Senate majority leader, Harry Reid, said the Senator 
was considering holding pro forma sessions of the Senate to prevent 
President Bush from renaming Mr. Battista as a recess appointment.
    At Thursday's hearing, a hotel housekeeper, Feliza Ryland, 
testified about her fight to win back pay after the board ruled in 2001 
that she and 43 other workers had been illegally fired in 1996 in a 
labor dispute with Grosvenor Resorts in Orlando, FL.
    ``It has now been more than 11 years since I was unlawfully 
fired,'' Ms. Ryland said, ``and I am still waiting to see the back pay, 
still waiting to see justice.''
    In a decision in September, the board sharply reduced the workers' 
back pay, saying they forfeited the right to full back pay because they 
picketed for several weeks in an effort to get their jobs back instead 
of looking for new jobs. The board's majority wrote that giving full 
back pay would ``reward idleness.''
                                 ______
                                 
                                              May 14, 2013.
Hon. Tom Harkin, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.

Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.

    Dear Chairman Harkin and Ranking Member Alexander: As management 
lawyers representing employers and union lawyers representing unions 
and employees, we are writing to urge swift confirmation of the full 
package of five members of the National Labor Relations Board (NLRB): 
Mark Pearce, Philip Miscimarra, Richard Griffin, Harry Johnson, III, 
and Sharon Block.
    This is a highly experienced group of nominees. Each of the 
nominated individuals brings decades of experience under the National 
Labor Relations Act and our labor-management system.
    While we differ in our views over the decisions and actions of the 
NLRB over the years, we do agree that our clients' interests are best 
served by the stability and certainty that a full, confirmed Board will 
bring to the field of labor-management relations. The last several 
years have been tumultuous, and the recent decision by the U.S. Court 
of Appeals for the DC Circuit in Noel Canning has thrown greater 
uncertainty into our labor-management system.
    We urge the Senate to confirm the full bipartisan package of 
nominees to the NLRB without delay.
            Respectfully submitted,

    Darryl Anderson, Washington, DC (U) \1\; Duane Beeson, Oakland, CA 
(U); Howard L. Bernstein, Chicago, IL (M) \2\; Burton Boltuch, Oakland, 
CA (M); Robert Bonsall, Sacramento, CA (U); Max Brittain, Chicago, IL 
(M); Ronald W. Brown, Sacramento, CA (M); Barbara Camens, Washington, 
DC (U); Wendy Chierici, Philadelphia, PA (U); Irwin H. Cutler, Jr., 
Louisville, KY (U); Joel A. D'Alba, Chicago, IL (U); Robert A. Dufek, 
Potomac, MD (M); Charles Elbert, St. Louis, MO (M); Philip C. Eschels, 
Louisville, KY (M); John H. M. Fenix, Westlake, OH (M); Ronald Fisher, 
St. Louis, MO (M); Joe Gagliardo, Chicago, IL (M); Brent Garren, New 
York, NY (U); Gerald A. Golden, Chicago, IL (M); Joyce Goldstein, 
Cleveland, OH (U); Barry A. Hartstein, Chicago, IL (M); H. Victoria 
Hedian, Baltimore, MD (U); Judith Droz Keyes, San Francisco, CA (M); 
Richard Laner, Chicago, IL (M); Gregory T. Lodge, Toledo, OH (M); 
Stanley Lubin, Phoenix, AZ (U); Stephen Macri, New York, NY (M); Thomas 
Mandler, Chicago, IL (M); Matt Miklave, New York, NY (M); Deb 
Millenson, Washington, DC (M); Fred A. Ricks Jr., St. Louis, MO (M); 
Laurence Rosoff, Camden Co., NJ (M); Steven B. Rynecki, Milwaukee, WI 
(M); Richard Seryak, Detroit, MI (M); Stephen D. Shawe, Baltimore, MD 
(M); W.V. (Bernie) Siebert, Denver, CO (M); Stanley Silverstone, White 
Plains, NY (M); Gary L. Simpler, Baltimore, MD (M); Leslie Tarantola, 
Camp Springs, MD (U); Marilyn Teitelbaum, St. Louis, MO (U); Carl 
Tomenberg, Chicago, IL (M); John J. Toner, Washington, DC (M); Carl E. 
Ver Beek, Grand Rapids, MI (M); Marc G. Whitefield, Farmington Hills, 
MI (M); Joe Yastrow, Chicago, IL (M); Amy Young, Washington, DC (U); 
and Barbara Zibordi, Washington, DC (U).
---------------------------------------------------------------------------
    \1\ (U) = Union Attorney.
    \2\ (M) = Management Attorney.
---------------------------------------------------------------------------
                                 ______
                                 
    American Association of University Women (AAUW)
                                              May 15, 2013.
Hon. Tom Harkin, Chairman,
Hon. Lamar Alexander, Ranking Member,
Senate Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.

    Dear Chairman Harkin and Ranking Member Alexander: On behalf of the 
undersigned organizations, all of whom work to promote economic 
opportunity and security for women, we write to urge the committee to 
do its part to ensure a smoothly functioning National Labor Relations 
Board. To that end, we urge you to carefully consider the bipartisan 
package of five nominees before you, and facilitate their movement 
through the confirmation process. Without swift action on the 
bipartisan package, the NLRB will be left without the necessary quorum 
of at least three members. As the economic recovery picks up steam, now 
is not the time to undermine an agency so critical to the Nation's 
workforce.
    As organizations devoted to advancing policies in support of fair 
pay, we know that there is much work to be done to close the gender 
wage gap. As we continue to urge Congress to pass the Paycheck Fairness 
Act (S. 84/H.R. 377), we also believe working families need a 
functioning, fully staffed National Labor Relations Board to protect 
their right to an important strategy in the fight for economic 
security: collective bargaining.
    The National Labor Relations Board has long worked to ensure the 
rights of employees to bargain collectively, if they choose to do so. 
This work is particularly meaningful for women. Throughout our Nation's 
history, women have played a significant role in improving workers' 
lives. Their courage and contributions changed the labor movement and 
in turn helped shape our society. Today, close to half of all the 
Nation's workers are women, and women make up roughly 45 percent of 
union members. If their share of the unionized workforce continues to 
grow at the current pace, by 2020 the majority of union members will be 
women.\1\
---------------------------------------------------------------------------
    \1\ John Schmitt, Center for Economic and Policy Research. 
(December 2008). Unions and Upward Mobility for Women. Retrieved May 
13, 2013 from www.cepr.net/index.php/publications/reports/unions-and-
upward-mobility-for-women-workers/.
---------------------------------------------------------------------------
    Unions have always been important to advancing women's economic 
security. Union wage and benefit structures are typically more 
transparent than those for non-union workplaces, which in turn helps to 
decrease wage discrimination. According to the U.S. Department of 
Labor, the typical full-time woman union worker has weekly earnings 
equal to 88 percent of a male union worker.\2\ In contrast, women 
overall make only 77 cents on average for every dollar earned by a 
man.\3\ Further, the Center for Economic and Policy Research found 
there is not only wage improvement but also a benefit advantage for 
women in unions relative to their non-union counterparts. According to 
that report:
---------------------------------------------------------------------------
    \2\ U.S. Department of Labor, Bureau of Labor Statistics. (January 
23, 2013). Union Members--2012. Retrieved May 13, 2013, from 
www.bls.gov/news.release/union2.nr0.htm.
    \3\ U.S. Census Bureau. (September 2012). Income, Poverty, and 
Health Insurance Coverage in the United States: 2011--Report and 
Detailed Tables. Retrieved May 13, 2013, from www.census.gov/prod/
2012pubs/p60-243.pdf.

          ``The data suggest that even after controlling for systematic 
        differences between union and non-union workers, union 
        representation substantially improves the pay and benefits that 
        women receive. On average, unionization raised women's wages by 
        11.2 percent--about $2.00 per hour--compared to non-union women 
        with similar characteristics. Among women workers, those in 
        unions were about 19 percentage points more likely to have 
        employer-provided health insurance and about 25 percentage 
        points more likely to have an employer-provided pension.'' \4\
---------------------------------------------------------------------------
    \4\ Ibid.

    Pay equity is particularly critical in today's economy, where 
approximately 40 percent of women are acting as the primary 
breadwinners in their households and more than 60 percent are 
breadwinners or co-breadwinners.\5\ Giving women more tools to help 
them take home every dollar they earn is crucial not only to families' 
economic security, but also to growth of the Nation's economy as a 
whole.
---------------------------------------------------------------------------
    \5\ American Progress. (2009). The Shriver Report: A Women's Nation 
Changes Everything; The New Breadwinners. Retrieved May 13, 2013, from 
www.americanprogress.org/issues/2009/10/pdf/awn/chapters/economy.pdf.
---------------------------------------------------------------------------
    The National Labor Relations Board also plays an important role in 
the American economy and the growing recovery. We urge the committee to 
take action on the full bipartisan package of nominees so that the 
Board has the full complement of members necessary to conduct the 
people's business.
    Please feel free to contact Lisa Maatz at the American Association 
of University Women, 202-785-7720 or [email protected], with any 
questions.
            Sincerely,

    American Association of University Women (AAUW); 9 to 5; Alliance 
for Justice; American Federation of State, County and Municipal 
Employees (AFSCME); American Federation of Teachers; Catalyst; 
Clearinghouse on Women's Issues; Coalition of Labor Union Women (CLUW); 
Digital Sisters; Equal Pay Coalition NYC; Equal Rights Advocates; 
Family Forward Oregon; Feminist Majority; Institute for Science and 
Human Values, Inc.; International Brotherhood of Teamsters; Legal 
Momentum; MomsRising; National Coalition on Black Civic Participation 
(NCBCP)/Black Women's Round Table; National Committee on Pay Equity; 
National Council of Jewish Women; National Council of Women's 
Organizations; National Gay and Lesbian Task Force; National 
Partnership for Women & Families; National Women's Law Center; National 
Women's Political Caucus; People For the American Way; Secular Women; 
Turning Anger into Change; Ultra Violet; US Women's Chamber of 
Commerce; Women Employed; Women's Law Project.

    [Whereupon, at 12:05 p.m., the hearing was adjourned.]

                                   