[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.]