[Senate Hearing 115-374]
[From the U.S. Government Publishing Office]


                                                   S. Hrg. 115-374

  NOMINATION HEARING FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE 
                     NATIONAL LABOR RELATIONS BOARD

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                                   ON

 NOMINATION FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE NATIONAL 
                         LABOR RELATIONS BOARD

                               __________

                             JULY 13, 2017

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman
                  
                  
                  
          
 MICHAEL B. ENZI, Wyoming		PATTY MURRAY, Washington
RICHARD BURR, North Carolina		BERNARD SANDERS (I), Vermont
JOHNNY ISAKSON, Georgia			ROBERT P. CASEY, JR., Pennsylvania
RAND PAUL, Kentucky			AL FRANKEN, Minnesota
SUSAN M. COLLINS, Maine			MICHAEL F. BENNET, Colorado
BILL CASSIDY, M.D., Louisiana		SHELDON WHITEHOUSE, Rhode Island
TODD YOUNG, Indiana			TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah			CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas			ELIZABETH WARREN, Massachusetts
LISA MURKOWSKI, Alaska			TIM KAINE, Virginia
TIM SCOTT, South Carolina		MAGGIE HASSAN, New Hampshire        
          
     
        
       
                David P. Cleary, Republican Staff Director

         Lindsey Ward Seidman, Republican Deputy Staff Director

                  Evan Schatz, Minority Staff Director

              John Righter, Minority Deputy Staff Director

                                  (ii)

  
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        THURSDAY, JULY 13, 2017

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Murray, Hon. Patty, a U.S. Senator from the State of Washington, 
  opening statement..............................................     4
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    12
Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana...    15
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    17
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky.......    19
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    20
Young, Hon. Todd, a U.S. Senator from the State of Indiana.......    21
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    23
Murphy, Hon. Christopher, a U.S. Senator from the State of 
  Connecticut....................................................    25
Hassan, Hon. Maggie, a U.S. Senator from the State of New 
  Hampshire......................................................    27
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia.......    28

                               Witnesses

Pizzella, Patrick, Alexandria, VA, Nominated to be Deputy 
  Secretary of Labor.............................................     5
    Prepared statement...........................................     6
Kaplan, Marvin, Cresskill, NJ, Nominated to be a Member of the 
  National Labor Relations Board.................................     7
    Prepared statement...........................................     8
Emanuel, William, Santa Monica, CA, Nominated to be a Member of 
  the National Labor Relations Board.............................    10
    Prepared statement...........................................    11

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.
    New York Times article by Philip Shenon, July 18, 1993.......    39
    Preston Gates Ellis & Rouvelas Meeds LLP Lobbying 
      Registration Form submitted by Senator Franken.............    43
    Letters of Support...........................................    46
    Response by Patrick Pizella to questions of:
        Senator Murkowski........................................    52
        Senator Murray...........................................    53
        Senator Casey............................................    60
        Senator Franken..........................................    61
        Senator Whitehouse.......................................    62
        Senator Warren...........................................    65
        Senator Kaine............................................    70

                                 (III)
    Response by Marvin Kaplan to questions of:
        Senator Roberts..........................................    71
        Senator Murray...........................................    71
        Senator Casey............................................    78
        Senator Franken..........................................    79
        Senator Whitehouse.......................................    79
        Senator Warren...........................................    80
        Senator Kaine............................................    80
    Response by William Emanuel to questions of:
        Senator Roberts..........................................    81
        Senator Murray...........................................    82
        Senator Casey............................................    86
        Senator Franken..........................................    87
        Senator Whitehouse.......................................    88
        Senator Warren...........................................    89
        Senator Kaine............................................    90



  

 
  NOMINATION HEARING FOR DEPUTY SECRETARY OF LABOR AND MEMBERS OF THE 
                     NATIONAL LABOR RELATIONS BOARD

                              ----------                              


                        THURSDAY, JULY 13, 2017

                                       U.S. Senate,
                    Committee on Health, Education, Labor, 
                                              and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 9:33 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, chairman of the committee, presiding.
    Present: Senators Alexander, Isakson, Cassidy, Paul, Young, 
Murray, Franken, Kaine, Bennet, Murphy, Hassan, Casey and 
Warren.

                 Opening Statement Of Senator Alexander

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    This morning, we're holding a hearing on three nominations, 
Patrick Pizzella for Deputy Secretary of the Department of 
Labor and Marvin Kaplan and William Emanuel to serve as members 
of the National Labor Relations Board. Senator Murray and I 
will each have an opening statement. Then I'll introduce the 
nominees. After their testimony, Senators will each have 5 
minutes of questions, and we'll take whatever time Senators 
would like to take for questions after that, if they want a 
second round.
    Today's hearing is an important one for our Nation's 
workers and employers. It's important to get the Department of 
Labor properly staffed and to ensure the open seats on the NLRB 
are filled. We need a full Board. I'm certainly not the only 
one of us who thinks so.
    One Democratic Senator said at a hearing on May 16, 2013,

          ``I strongly support a fully functioning NLRB with 
        five members. I think confirming the entire slate will 
        ensure that the NLRB is working for American workers 
        and employers.''

    Another Democratic Senator said at the same hearing,

          ``What we don't need now--the last thing we need here 
        in this country is more rancor, more division, more 
        ideology, at a time when we need the Board fully 
        functioning. We need five people to get confirmed here. 
        Any Senator who is standing in the way of getting five 
        people confirmed and having a functioning Board has a 
        lot of explaining to do.''

    Our chairman then, Senator Harkin, said in September 2014,

          ``Keeping the NLRB fully staffed and able to do its 
        work will send a strong message to the American people 
        that, yes, Washington can work, and our government can 
        function. It will give certainty to businesses and 
        ensure workers that someone is looking out for their 
        rights and ready and able to enforce our Nation's labor 
        laws.''

    Back when we had a requirement for 60 votes on cloture on 
the floor of the Senate, I voted for cloture on three of the 
NLRB Board members, two of whom I voted against in the end, 
just so we could make sure that the Senate had a chance to 
consider them by majority vote. I did the same for the NLRB 
General Counsel, and I did the same for Secretary Perez. My 
hope is that we can have our hearing, move our nominees out 
promptly to the floor and confirm them so the government can 
function.
    The Department of Labor is charged with enforcing laws to 
keep workers safe, to ensure workers are paid, to ensure 
employers comply with our laws, and the agency also keeps 
critical data on our employment market. Secretary Acosta is off 
to a fine start with just over 60 days in office. He has many 
positions to fill, and today, we're considering the President's 
nomination to fill one of the most important ones of those.
    Patrick Pizzella brings a wealth of relevant experience in 
both Democratic and Republican administrations. He currently 
serves as Acting Chairman of the Federal Labor Relations 
Authority. Mr. Pizzella has served as a member of the Federal 
Labor Relations Authority since November 2013, after being 
nominated by President Obama in August 2013, and confirmed by 
the Senate on a voice vote.
    He served under President George W. Bush from 2001 to 2009 
as Assistant Secretary of Labor. He was nominated by President 
Bush in April 2001, approved in May without a hearing by the 
HELP Committee under Senator Kennedy, and confirmed by the full 
Senate 2 days later. He served at the U.S. Office of Personnel 
Management, the Small Business Administration, the General 
Services Administration.
    We received his ethics paperwork on June 23, including his 
public financial disclosure and ethics agreement. Based on 
these documents, OGE finds that Mr. Pizzella is, ``in 
compliance with applicable laws and regulations governing 
conflicts of interest.'' The committee received his committee 
paperwork on June 29, meeting our requirement that it be at 
least 5 days before a hearing.
    The NLRB was created in 1935 by the National Labor 
Relations Act in response to strife between employees and 
employers in the industrial workplace. The Board has five 
members with 5-year staggered terms and a general counsel with 
a 4-year term. There's no statutory requirement regarding party 
affiliation, but the tradition has been for the President to 
appoint members on a 3-2 ratio favoring the current 
administration, with nominations for the two minority seats 
recommended by the Senate minority leader.
    The two nominees today are for positions that have been 
vacant, one for 23 months, since President Obama declined to 
nominate a Republican for the then minority seat, and the other 
for 11 months. My hope is that these nominees will help restore 
some balance to the Board. After years of playing the role of 
advocate, the Board should be restored to the role of neutral 
umpire.
    Board partisanship didn't start with President Obama. 
That's for sure. It became worse in the last several years. 
Board decisions designed to help labor unions have contrasted 
with the States' movement toward right-to-work laws. Six new 
States became right-to-work in the last 6 years, bringing the 
total to 28. When the Board is too partisan, it creates 
instability in the workplaces. These legal whipsaws create 
confusion for employers, employees, and unions and doesn't 
serve the intent of the law, which is stable labor relations 
and a free flow of commerce.
    Here are three actions I considered harmful by the last 
administration. One, the joint employer decision. That was the 
biggest attack on opportunity for small business men and women 
in this country to make their way into the middle class that 
anyone has seen in a long time, threatening to destroy the 
American dream for owners of the Nation's 780,000 franchise 
locations.
    The ambush elections rule. The NLRB's ambush election rule 
can force a union election in as little as 11 days, before an 
employer and many employees even have a chance to figure out 
what's going on.
    The micro-union decision. Factions of employees within 
single stores now have a path to forming their own unions. In 
2011, the Board suddenly adopted a new way to define what makes 
a local union bargaining unit, changed the law so that any 
group of employees with an overwhelming community of interest 
could become a bargaining unit and, therefore, a union.
    Nominee Marvin Kaplan is currently Chief Counsel for the 
Occupational Safety and Health Review Commission, where he has 
served since August 2015. From 2009 to 2015, Kaplan worked as 
counsel for the House Education and Workforce Committee and the 
House Oversight and Government Reform Committee. From 2007 to 
2009, he was Special Assistant at the Department of Labor, 
Office of Labor-Management Standards.
    William Emanuel is currently an attorney at Littler 
Mendelson in Los Angeles, working on labor and employment 
matters. He spent his career in the private sector, 
representing trade associations, hospitals, health care 
organizations, schools, and others. He has previously 
represented his clients before the NLRB and has filed amicus 
briefs on behalf of trade associations.
    The committee received Mr. Kaplan's HELP paperwork on June 
26. Also on June 26, we received Mr. Kaplan's Office of 
Government Ethics paperwork, including his public financial 
disclosure and ethics agreement. Based on these documents, OGE 
determined that Mr. Kaplan, ``is in compliance with applicable 
laws and regulations governing conflicts of interest.''
    The committee received Mr. Emanuel's HELP application on 
June 30. On July 6, we received his OGE paperwork. Based on 
these documents, OGE determined that he is ``in compliance with 
applicable laws and regulations governing conflicts of 
interest.''
    I look forward to hearing the witnesses' testimony.
    Senator Murray.

                  Opening Statement of Senator Murray

    Senator Murray. Thank you very much, Chairman Alexander. I 
do want to thank Mr. Emanuel and Mr. Kaplan and Mr. Pizzella 
for being here today.
    Before we begin, Mr. Chairman, I'm sure you're not 
surprised that I'm going to once again object to the fact that 
we have not had a hearing on the Trumpcare plan. We've heard 
reports that the Republicans are considering a variety of ideas 
and are planning on introducing a bill today that will be voted 
on next week that we haven't had any hearings on or any look 
at. What we are hearing is that it will have the same results 
of higher costs for working families, loss of coverage for tens 
of millions of people, and reverting back to the days when 
women were discriminated against by insurance companies.
    I just want to remind the Chairman, if Republican leaders 
abandon this ideological commitment to undermining our 
healthcare system and giving a tax break to corporations and 
billionaires, Democrats are willing--we are ready and willing 
to work with you to continue fixing our healthcare system in 
ways that make healthcare more affordable and workable for 
people.
    I do want to just say quickly that I really am concerned 
about the rushed and unprecedented manner of this hearing 
today. The Department of Labor and the National Labor Relations 
Board are really vastly different agencies. They operate 
independently of each other. I'm disappointed that you did not 
hear my request for separate hearings on these extremely 
important positions, but we're here today.
    Instead, I do think Mr. Emanuel's and Mr. Kaplan's 
nominations are being jammed through this committee actually at 
a very unprecedented speed while other less controversial 
nominees continue to await a hearing. With these appointments, 
I'm very concerned that President Trump is once again breaking 
his campaign promises of putting workers first and actually 
ignoring the core mission of the NLRB.
    The National Labor Relations Act gives workers the right to 
join together and participate in collective bargaining. It 
guarantees workers a voice allowing them to speak up for fair 
wages and benefits and for safe working conditions. Strong 
unions created our middle class, and for many working families 
in the 20th century, a good union job with a right to 
collective bargaining helped them move up the economic ladder.
    As we all know, over the past few decades, our economy has 
favored corporations and those at the top, and we have seen a 
decline in unions and union membership across the country, and 
with that, the middle class in this country has shrunk, and the 
rich got richer, leaving a lot of working families behind. I 
believe it is critical now more than ever that we are doing 
everything we can to ensure that every worker has a fair shot.
    Mr. Emanuel and Mr. Kaplan, as I look at your records, I 
see patterns of anti-worker, anti-union, even anti-NLRB 
measures.
    Mr. Emanuel, you have spent decades advocating for 
corporations and special interests by taking on workers by 
their efforts to unionize. I have strong reservations about 
your ability to protect those workers now, since you've spent a 
career fighting against them.
    Mr. Kaplan, during your time as a Labor staffer in the 
House of Representatives, you prepared and you actually staffed 
hearings where your employers railed against the NLRB and the 
agency's core mission. In fact, I couldn't find one example of 
you supporting the rights of workers and unions. Your lack of 
legal experience, as we talked about, practicing before the 
NLRB is really concerning to me.
    I hope you are prepared today to explain how you believe 
your careers, both of you, of fighting against workers' rights 
qualifies you to work those issues out now, as the NLRB and its 
main goal is to promote collective bargaining and to stand up 
for workers.
    While the Department of Labor's goals are broader, its main 
objective is the same, to stand up for our workers. DOL makes 
sure that workers' rights and safety and livelihoods are 
protected and seeks to expand economic opportunity to more 
workers and families in the country. Yet, as we know, since Day 
1, President Trump has rolled back worker protections, he has 
promoted policies that make it harder for working families to 
be financially secure, and he says he wants to slash the 
Department of Labor's budget by 20 percent.
    Mr. Pizzella, I will be interested in hearing whether you 
agree that rolling back worker protections, prioritizing 
corporate special interests, and gutting DOL is in the best 
interest of our workers.
    I look forward to your testimony today. I will listen to 
your responses, and I hope that we can really begin to 
understand where the President wants to take our country with 
your words today.
    Thank you.
    The Chairman. Thank you, Senator Murray.
    We'll now hear testimony from each of those before us, and 
if you could keep your remarks to about 5 minutes, that will 
leave more time for questions.
    Mr. Pizzella, welcome.

STATEMENT OF PATRICK PIZZELLA, ALEXANDRIA, VA, NOMINATED TO BE 
                   DEPUTY SECRETARY OF LABOR

    Mr. Pizzella. Thank you, Mr. Chairman. Chairman Alexander, 
Ranking Member Murray, and members of the committee, thank you 
for the opportunity to appear before you this morning. I want 
to thank you and your staff for all the courtesies shown to me 
as I have prepared for this hearing.
    Before I begin, I would like to recognize my wonderful 
wife, Mary Joy, who is joining me today. She herself previously 
served at the Departments of Energy, State, and the General 
Services Administration. There is no shortage of Federal 
service in our family.
    I want to express thanks to my parents, who are no longer 
with us, but as members of the greatest generation would be 
very proud today. Probably most importantly, I would like to 
pay a special thanks to all four of my late grandparents, who 
more than 100 years ago, unable to speak, read, or write 
English, all got on separate boats and decided to come to 
America from somewhere in Italy. And because of their 
courageous journey, I sit in this chair today.
    This is the fifth time a President of the United States has 
nominated me for a position of public trust. I am honored to be 
nominated by President Donald Trump for the position of Deputy 
Secretary of Labor, and if confirmed, I will do my best to 
advance the President and Secretary of Labor Acosta's agenda 
for America's workforce.
    The Department of Labor's mission is to foster, promote and 
develop the welfare of the wage earners, job seekers, and 
retirees of the United States; improve working conditions; 
advance opportunities for profitable employment; and assure 
work-related benefits and rights. With a discretionary budget 
of about $10 billion and a mandatory budget of about $34 
billion and over 15,000 employees, the challenges are large.
    My first experience at a Federal agency was in 1981, and 
since then I have spent almost 25 years in the executive branch 
at seven different agencies. I believe the nearly 8 years I 
spent as Assistant Secretary of Labor for Administration and 
Management from 2001 to 2009 has prepared me well for the 
position this committee is considering me for today.
    I will try to answer your questions, and, if confirmed, I 
look forward to working with all of you.
    Thank you.
    [The prepared statement of Mr. Pizzella follows:]
                 Prepared Statement of Patrick Pizzella
    Thank you Mr. Chairman. Chairman Alexander, Ranking Member Murray 
and Members of the committee, thank you for the opportunity to appear 
before you this morning. I want to thank you and your staff for all the 
courtesies shown to me as I have prepared for this hearing.
    Before I begin, I would like to recognize my wonderful wife Mary 
Joy (MJ) who is joining me today; she herself previously served at the 
Departments of Energy, State and the General Services Administration.
    I want to express thanks to my parents who are no longer with us, 
but as members of the ``greatest generation'' would be very proud 
today.
    Probably, most importantly, I would like to pay a special thanks to 
all four of my late grandparents. Who more than 100 years ago, unable 
to speak, read or write English all got on separate boats and decided 
to come to America from somewhere in Italy. And because of their 
courageous journey I sit in this chair today.
    This is the fifth time a President of the United States has 
nominated me for a position of public trust. I am honored to be 
nominated by President Donald Trump for the position of Deputy 
Secretary of Labor, and if confirmed, I will do my best to advance the 
President and Secretary of Labor Acosta's agenda for America's 
workforce.
    The Department of Labor's mission is to foster, promote and develop 
the welfare of the wage earners, job seekers and retirees of the United 
States; improve working conditions; advance opportunities for 
profitable employment; and assure work-
related benefits and rights. With a discretionary budget of about $10 
billion and mandatory budget of $34 billion and over 15,000 employees--
the challenges, are large.
    My first experience at a Federal agency was in 1981 and since then 
I have spent almost 25 years in the executive branch at seven different 
agencies.I believe the nearly 8 years I spent as Assistant Secretary of 
Labor for Administration and Management from 2001 to 2009 has prepared 
me well for the position this committee is considering me for today.
    I will try to answer your questions, and if confirmed, I look 
forward to working with all of you.
    Thank you.

    The Chairman. Thank you, Mr. Pizzella.
    Mr. Kaplan.

 STATEMENT OF MARVIN KAPLAN, CRESSKILL, NJ, NOMINATED TO BE A 
          MEMBER OF THE NATIONAL LABOR RELATIONS BOARD

    Mr. Kaplan. Thank you, Chairman Alexander, Ranking Member 
Murray, and members of the committee. It is a great honor to 
appear before you today with my fellow nominees and be 
considered as a potential member of the National Labor 
Relations Board.
    Unfortunately, my wife, Dr. Ladin Yurteri-Kaplan, and son, 
Eliaydin Kaplan, are not able to join me today. My wife, a 
first generation Muslim American, is my greatest supporter and 
critic. My son is the best thing that has ever happened to me 
and a constant reminder that it is our responsibility to leave 
the world better than we found it. I would like to thank them 
for their support and sacrifices so that I may continue my 
career in public service.
    I would also like to thank my parents, Elliot and Jeanne 
Kaplan. My father worked tirelessly to make sure we were 
provided for. He instilled in me the importance of fair play, 
hard work, and patience. My mother taught me compassion, 
acceptance, and understanding. They also imparted to me a deep 
love for this country and a desire to serve it.
    Finally, I would like to thank my in-laws, Sualp and Gonca 
Yurteri. Despite the rigors of running a successful small 
marble business, they have found time to help take care of my 
son. I would not be able to pursue this opportunity without 
their support.
    Following graduation from law school at Washington 
University in St. Louis, after a short stint at a law firm, I 
devoted myself to public service, focusing on labor and 
employment law. I began my public service career at the U.S. 
Department of Labor's Office of Labor Management Standards in 
2007. In 2009, I came to Capitol Hill, working for the House 
Oversight and Government Reform Committee and subsequently for 
the Education and the Workforce Committee. Currently, I am 
chief counsel to the Occupational Safety and Health Review 
Commission chairman.
    In each of these positions, I have gained extensive labor 
and employment law experience and developed skills that are 
essential for success at the National Labor Relations Board.
    At the Department of Labor, I met and worked with 
employees, unions, employers, attorneys, congressional staff, 
and various interest groups to ensure union democracy, 
financial integrity, transparency. It was a unique professional 
opportunity to develop and implement labor policy. During this 
time, the Office of Labor Management Standards was regularly 
the subject of congressional oversight. We endeavored to be 
responsive to all congressional inquiries while simultaneously 
protecting the integrity of ongoing investigations and the 
deliberative process.
    I departed the Department of Labor with a substantive 
understanding of union structure and collective bargaining, a 
respect for congressional oversight, and a deep understanding 
of the administrative policymaking process.
    In 2009, I became counsel for the Oversight and Government 
Reform Committee. The committee has broad oversight 
jurisdiction, covering almost the entire Federal Government. 
While oversight can be contentious, I was always respectful of 
the Administration's position and attempted to find a mutually 
agreeable outcome. My time at the House Oversight and 
Government Reform Committee highlighted the importance of 
transparency and accountability.
    I joined the U.S. House Education and the Workforce 
Committee in 2012. As Workforce Policy Counsel, I continued to 
conduct oversight of the Department of Labor and the National 
Labor Relations Board and provided legal and policy advice on 
all workforce issues, from labor/management relations to 
pensions. My duties and responsibilities required extensive 
study of the National Labor Relations Act.
    I regularly met with Members of Congress, minority staff, 
employees, administration officials, including the General 
Counsel and Members of the National Labor Relations Board, 
unions, employers, attorneys, and various interest groups. It 
was an unparalleled opportunity to debate the most fundamental 
labor and employment policies with a broad range of interested 
parties. These discussions were bolstered by dozens of 
committee hearings. I always approached these issues with an 
open mind.
    In 2015, I accepted a position at the Occupational Safety 
and Health Review Commission. The Commission, like the National 
Labor Relations Board, involves appellate level decisionmaking. 
As counsel and now chief counsel, I review appeals of 
administrative law judge decisions. That review involves the 
examination of an extensive hearing record, the analysis of the 
judge's opinion, and the evaluation of competing appellate 
arguments. From start to finish, this deliberative process is 
collaborative, requiring an open mind and the patience to reach 
decisions and flesh out opinions.
    If confirmed, I will fairly and faithfully enforce the 
National Labor Relations Act as it is written and consistent 
with its amendments. I will approach each case impartially, 
respect longstanding precedent, stay true to the tenets of 
statutory construction, endeavor to bridge the divisions at the 
National Labor Relations Board, seek public input when 
appropriate, and cooperate with congressional oversight.
    Thank you for the opportunity to offer these remarks. I 
welcome your questions. I also would like to thank all the 
members that took time to meet with us. It was very informative 
and very helpful to get your opinions in a one-on-one.
    [The prepared statement of Mr. Kaplan follows:]
                  Prepared Statement of Marvin Kaplan
    Thank you Chairman Alexander, Ranking Member Murray, and members of 
the committee. It is a great honor to appear before you today with my 
fellow nominees and to be considered as a potential member of the 
National Labor Relations Board.
    Unfortunately, my wife, Dr. Ladin Yurteri-Kaplan, and son, Eliaydin 
Kaplan, are not able to join me today. My wife, a first generation 
Muslim American, is my greatest supporter and critic. My son is the 
best thing that has ever happened to me and a constant reminder that it 
is our responsibility to leave the world better than we found it. I 
would like to thank them for their support and sacrifices so that I may 
continue my career in public service.
    I would also like to thank my parents, Elliot and Jeanne Kaplan. My 
father worked tirelessly to make sure we were provided for. He 
instilled in me the importance of fair play, hard work, and patience. 
My mother taught me compassion, acceptance, and understanding. They 
also imparted to me a deep love for this country and a desire to serve 
it.
    Finally, I would like to thank my in-laws, Sualp and Gonca Yurteri. 
They have been part of my life for the last 19 years. Over that time, 
through hard work and devotion, they have built a successful small 
marble and stone business. Despite the rigors of their work, they have 
found time to help take care of my son. I would not be able to pursue 
this opportunity without their support.
    Following graduation from law school at Washington University in 
St. Louis, where I concentrated on labor and employment law, and after 
a short stint at a law firm, I devoted myself to public service, 
focusing on labor and employment law. I began my public service career 
at the U.S. Department of Labor's Office of Labor Management Standards 
in 2007. In 2009, I came to Capitol Hill, working for the House 
Oversight and Government Reform Committee and subsequently, for the 
Education and the Workforce Committee. Currently, I am chief counsel to 
the chairman of the Occupational Safety and Health Review Commission. 
In each of these positions, I have gained extensive labor and 
employment law experience and developed skills that are essential for 
success as a member of the National Labor Relations Board.
    At the Department of Labor, I met and worked with employees, 
unions, employers, attorneys, congressional staff, and various interest 
groups to ensure union democracy, financial integrity, and 
transparency. It was a unique professional opportunity to develop and 
implement labor policy. During this time, the Office of Labor 
Management Standards was regularly the subject of congressional 
oversight. We endeavored to be responsive to all congressional 
inquiries while simultaneously protecting the integrity of ongoing 
investigations and the deliberative process. I departed the Department 
of Labor with a substantive understanding of union structure and 
collective bargaining, a respect for congressional oversight, and a 
deep understanding of the administrative policymaking process.
    In 2009, I became counsel for the U.S. House Oversight and 
Government Reform Committee. The committee has broad oversight 
jurisdiction, covering almost the entire Federal Government. At the 
direction of then-Ranking Member Issa, I was responsible for ensuring 
compliance with dozens of oversight requests and conducting numerous 
investigations aimed at ensuring that Departments and Agencies were 
operating in an open and transparent manner, accountable to all 
stakeholders, and acting within the bounds of the authority given to 
them by Congress. While oversight can be contentious, I was always 
respectful of the Administration's position and attempted to find a 
mutually agreeable outcome. My time at the U.S. House Oversight and 
Government Reform Committee highlighted the importance of transparency 
and accountability.
    I joined the U.S. House Education and the Workforce Committee in 
2012. As Workforce Policy Counsel, I continued to conduct oversight of 
the Department of Labor and the National Labor Relations Board, and 
provided legal and policy advice on all workforce issues, from labor/
management relations to pensions. My duties and responsibilities 
required extensive study of the National Labor Relations Act. I 
regularly met with Members of Congress, minority staff, employees, 
administration officials, including the General Counsel and members of 
the National Labor Relations Board, unions, employers, attorneys, and 
various interest groups. It was an unparalleled opportunity to debate 
the most fundamental labor and employment policies with a broad range 
of interested parties. These discussions were bolstered by dozens of 
committee hearings. I always approached these issues with an open mind.
    In 2015, I accepted a position at the Occupational Safety and 
Health Review Commission (Commission). The Commission, like the 
National Labor Relations Board, involves appellate level 
decisionmaking. As counsel and now chief counsel, I review appeals of 
administrative law judge decisions. That review involves the 
examination of an extensive hearing record, the legal analysis of the 
judge's opinion, and the evaluation of competing appellate arguments. 
From start to finish, this deliberative and decisional process is 
collaborative, requiring an open mind and patience to reach decisions 
and flesh out opinions.
    If confirmed, I will fairly and faithfully enforce the National 
Labor Relations Act as it is written and consistent with its 
amendments. I will approach each case impartially, respect longstanding 
precedent, stay true to the tenets of statutory construction, endeavor 
to bridge the divisions at the National Labor Relations Board, seek 
public input when appropriate, and cooperate with congressional 
oversight.
    Thank you for the opportunity to offer these opening remarks. I 
welcome your questions.

    The Chairman. Thank you, Mr. Kaplan.
    Mr. Emanuel, welcome.

STATEMENT OF WILLIAM EMANUEL OF SANTA MONICA, CA, NOMINATED TO 
       BE A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD

    Mr. Emanuel. Thank you, Senator.
    Chairman Alexander, Ranking Member Murray, and members of 
the committee, I am honored to appear before you today as a 
nominee for the National Labor Relations Board. My wife, Betsy, 
is seated directly behind me. She has made it possible for me 
to accept this position by agreeing to leave her home and 
family in California and move with me to Washington, DC, for 
which I am grateful. Our three children are very busy with 
their careers and family responsibilities back in California 
and could not be here today.
    I am grateful to President Trump for nominating me for this 
position. There is no greater honor for a labor lawyer than 
serving as a member of the National Labor Relations Board.
    I believe that I am well-qualified for this position. I 
practiced law as a labor and employment lawyer in Los Angeles 
for my entire career, which has spanned several decades. During 
that time, I have focused primarily on traditional labor law 
issues which involve the NLRB and the National Labor Relations 
Act. In addition to litigating labor cases before the NLRB and 
the courts, my practice has included collective bargaining, 
strikes and picket lines, labor arbitration cases, labor 
injunction litigation, union organizing campaigns, unfair labor 
practice charges, and the other issues that labor lawyers 
confront on a daily basis.
    In addition, I represented a major hospital association 
during the deliberations by Congress over the healthcare 
amendments to the National Labor Relations Act which were 
enacted in 1974. This involved negotiating the language of the 
amendments with labor union representatives and then also 
testifying at two hearings before the Senate Labor Committee 
regarding the legislation. Subsequently, I testified before the 
NLRB when it adopted special rules for hospital bargaining 
units, which were adopted in 1989.
    I have also served for many years as a contributing editor 
of the leading treatise on the National Labor Relations Act, 
which is named The Developing Labor Law. In addition, I have 
actively participated in committees of the American Bar 
Association and other organizations that focus on that statute, 
and in 1974, the NLRB asked me to serve on an advisory 
committee for that agency regarding the agency's procedures, 
which I did. As a result of my experience in the--of my years 
of experience in the practice of labor law and my Bar 
Association activities, I am personally acquainted with all of 
the current Board members, which should be very helpful in 
discussing and resolving the complex issues to be decided by 
the Board in the years ahead.
    In addition to my professional experience in the field of 
labor law, I also understand the workplace from a very 
practical standpoint, which I think will be helpful in this 
position. During my college and high school years, I worked as 
a railroad switchman in the Milwaukee freight yards, as a 
brewery worker, as a construction worker, as a bartender, as a 
grocery clerk, and in several other jobs.
    In 1998, I was honored by being elected as a Fellow of the 
College of Labor and Employment Lawyers, which includes labor 
lawyers on the union side as well as those who represent 
employers. I earned my undergraduate degree at Marquette 
University and my law degree at Georgetown University here in 
Washington.
    I look forward to working with the other Board members in 
resolving the difficult issues that the Board will face in the 
next several years.
    Thank you.
    [The prepared statement of Mr. Emanuel follows:]
                Prepared Statement of William J. Emanuel
    Chairman Alexander, Ranking Member Murray, and Members of the 
committee: I am honored to appear before you today as a nominee for the 
National Labor Relations Board. My wife Betsy is seated behind me. Our 
three children are busy with their careers and family responsibilities 
in California and could not be here on short notice.
    I am grateful to President Trump for nominating me for this 
position. There is no greater honor for a labor lawyer than serving as 
a member of the NLRB.
    I believe I am well-qualified for this position. I have practiced 
law as a labor and employment lawyer in Los Angeles for my entire 
career, which has spanned several decades. During that time, I have 
focused primarily on traditional labor law issues, which involve the 
NLRB and the National Labor Relations Act. In addition to litigating 
labor cases before the Board and the courts, my practice has involved 
collective bargaining, strikes and picket lines, labor arbitration, 
labor injunctions, organizing campaigns, unfair labor practice charges, 
and the other issues labor lawyers confront on a daily basis.
    In addition, I represented a major hospital association during the 
deliberations by Congress over the health care amendments to the NLRA, 
which were enacted in 1974. This involved negotiating the language of 
the amendments with union representatives, and also testifying at two 
hearings before the Senate Labor Committee. Subsequently, I testified 
before the Board when it adopted special rules for hospital bargaining 
units, which were adopted in 1989.
    I have also served for many years as a contributing editor of The 
Developing Labor Law, which is the leading treatise on the NLRA. In 
addition, I have actively participated in committees of the American 
Bar Association and other organizations that focus on that statute. In 
1994, I served on an advisory committee for the NLRB on agency 
procedures.
    As a result of my years of experience in the practice of labor law 
and my bar association activities, I am personally acquainted with all 
of the current Board members, which should be helpful in discussing and 
resolving the complex issues to be decided by the Board.
    In addition to my professional experience in the field of labor 
law, I also understand the workplace from a practical standpoint. 
During my college and high school years, I worked as a railroad 
switchman, brewery worker, construction worker, bartender, grocery 
clerk, and in several other jobs.
    In 1998, I was honored by being elected as a Fellow of the College 
of Labor and Employment Lawyers, which includes labor lawyers on the 
union side as well as those who represent employers.
    I earned my undergraduate degree at Marquette University, and my 
law degree at Georgetown University.
    I look forward to working with the other Board members in resolving 
the difficult issues that the Board will face in the next several 
years.
    Thank you.

    The Chairman. Thank you, Mr. Emanuel, and thanks to all of 
you.
    We'll now have 5-minute rounds of questions by Senators. 
I'm going to call on Senator Isakson first.
    Just on the question of whether we're rushing the nominees, 
Mr. Kaplan's and Mr. Pizzella's nominations have been pending 
for 23 days, Mr. Emanuel's for 14 days. We have all your 
papers. By comparison, under Chairman Harkin, the HELP 
Committee held hearings on several NLRB nominees with far less 
time for consideration. Current Board member McFerran's hearing 
was 8 days after her nomination. Former Board member Schiffer's 
hearing was 7 days after her nomination. The committee marked 
her nomination up the next day. Former Board member Hirozawa's 
hearing was also 7 days after his nomination. His markup was 
also the next day.
    Mr. Pizzella offered to meet with all HELP Committee 
members before the hearing. He met with 13 of them, including 6 
of the Democratic members. Mr. Kaplan and Mr. Emanuel also 
offered to meet with all HELP members. Mr. Kaplan met with 10 
of them, including 5 Democratic members. Mr. Emanuel met with 
nine, including five Democratic members.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman.
    Thanks to all of you for coming to my office and meeting 
with me. I enjoyed the meeting very much, and, as always, I 
learned something.
    Starting with Mr. Pizzella and going to each member, would 
you please tell me in a brief sentence or two a description of 
what you think your job and responsibility will be as a 
National Labor Relations Board member?
    Mr. Pizzella. I'll obviously address the Department of 
Labor as the Deputy Secretary possibility. I think having 
worked there before for 8 years--I worked under three different 
Deputy Secretaries and worked closely with the Secretary.
    The Deputy Secretary's role has always been, at least in my 
experience, one where--as sort of a chief operating officer, 
someone who is making sure that a department with 15,000 
employees that administer 180 laws is running in an efficient 
and effective way for a few reasons. No. 1, we have that 
responsibility to the American people. No. 2, in order to 
assist both the President's and the Secretary's agenda, we need 
to have a department that runs in an efficient and effective 
way.
    I believe that the skill set I have and my focus on the 
agenda of the President and the Secretary will aid me in the 
job as Deputy Secretary.
    Senator Isakson. Correcting my question, as Deputy 
Secretary, that would be your definition, not as a member of 
NLRB.
    Mr. Pizzella. Right.
    Senator Isakson. But these two gentlemen will be NLRB. In a 
couple of sentences, would you describe to me how you see your 
role as a member of the NLRB?
    Mr. Kaplan. I think it's pretty straightforward, to 
expeditiously, fairly, and impartially determine the cases that 
come before us in conjunction with our other Board members.
    Senator Isakson. A baseball analogy--you call balls and 
strikes, you think?
    Mr. Kaplan. After an exhaustive review of the record, a 
number of meetings with the members, both Republican and 
Democrat, meetings with your staff, a review of the statute, a 
review of the precedent, a review of court precedent, a review 
of the legislative history, yes, et cetera, et cetera. It's a 
long process, but when it's done right, it results in good 
decisions.
    Senator Isakson. Mr. Emanuel.
    Mr. Emanuel. I would agree with that, Senator. As Board 
members, we would serve in what is known as a quasi-judicial 
capacity, which means that we would review cases that come up 
from the regions and from the administrative law judges and 
make decisions on a case-by-case basis as to whether the 
decisions below were correct or not, and if not, how they 
needed to be amended.
    We would start with the statute as it is written and the 
intent of Congress, and then we review the facts of the case, 
and many of the NLRB's cases are extremely fact-intensive, and, 
of course, Supreme Court precedent is important, and the court 
has already decided several fundamental principles. We have to 
take that into account. We consider the arguments of the 
parties, obviously, and the views of our colleagues, and then 
we come to a decision on a case-by-case basis.
    Senator Isakson. Mr. Pizzella, as Deputy Secretary, there's 
one very important role you're going to have, which I'd like 
for you to opine on for just a second. I'm the chairman of the 
Veteran Affairs Committee and work very hard for the veterans 
of this country, most of whom, or many of whom are married 
while on duty. Their spouses work in the workplace in the 
community where their husband is transferred to the base of 
operation. Many of their jobs require licensing by the 
equivalency of a State labor board or a State occupational 
licensing board or whatever it might be--plumbers, whatever it 
might be.
    One of the difficulties we have for our military families 
is that when they're transferred from, say, Fort Benning in 
Georgia to Fort Hood or to MacDill Air Force Base or to 
somewhere in another State, the transferability of the license 
of the trailing spouse is not treated with reciprocity in the 
State they go to. Do you see a role, or do you see any way you 
could help us to get a more seamless approach to that so that 
we can have better reciprocity and transferability of 
occupational licensing from one State to the next?
    Mr. Pizzella. Thank you for that question, Senator. As you 
know, the Department of Labor has the Veterans Employment and 
Training Service as part of its mission. I see a role, one of 
certainly encouraging and trying to bring together States to be 
more reciprocal in the way they treat licensing and 
occupations. I think--we have one role. I think there's other 
roles, and that has to do with the State level.
    Second, there's also sort of a litigation role. There's an 
organization in Washington called the Institute for Justice 
that has made a bit of crusade over the past 10 years or so in 
trying to break down these licensing requirements, particularly 
for positions that perhaps--we're not talking about doctors or 
lawyers. We're talking about individuals in professions that 
are--the skills are very transferable and portable.
    I think it's threefold. It's the Department of Labor trying 
to provide some leadership. I think it's States trying to 
coordinate this a little bit. It seems to be something that 
everyone should somewhat agree on.
    The Chairman. We need to wrap up. We're running out of 
time.
    Senator Isakson. Thank you, Mr. Chairman.
    Mr. Pizzella. Thank you. I'm sorry. I didn't see that.
    The Chairman. Senator Murray.
    Senator Murray. Thank you, Mr. Chairman.
    Mr. Emanuel, let me start with you. You once wrote that 
the, ``primary purpose of the national labor law remains to 
assist unions in the organization of employees.'' Do you still 
believe the National Labor Relations Act is meant to encourage 
collective bargaining?
    Mr. Emanuel. Certainly. That is one of the principal 
purposes of the National Labor Relations Act, and it's stated 
right in section 1 of the statute. There are other important 
purposes that are stated later in the statute, specifically in 
the Taft-Hartley amendments of 1947, and one of those is to 
protect the rights of employers as well as the rights of 
employees, and also to protect the rights of individual 
employees as opposed to labor unions when difficulties arise in 
that area. Also, one purpose is to protect the rights of the 
public in connection with labor disputes affecting commerce. 
All of those purposes are set forth in the statute, and those 
are the goals that we would seek to achieve in deciding our 
cases.
    Senator Murray. The preamble of the NLRA says it is the 
policy of the United States to encourage collective bargaining. 
I wanted to ask--you have 40 years of experience as a labor 
attorney. Can you give me an example of when you represented a 
union or advocated for a worker or didn't work to discourage 
the practice of collective bargaining?
    Mr. Emanuel. I haven't worked to discourage the practice of 
collective bargaining, Senator. I would take issue with that. 
I've been at the bargaining table on numerous occasions 
negotiating agreements with labor unions, and I think that 
supports the practice of collective bargaining. I don't 
disagree that the purpose of the statute is to promote 
collective bargaining when employees want to be unionized and 
represented by a union for purposes of collective bargaining.
    This is a right that employees have, and if employees 
choose to engage in collective bargaining through a labor 
organization, they have the right to do that. If that happens, 
then the employer has to respect that right and engage in 
collective bargaining as the statute says.
    Senator Murray. Do you think that the employees have--you 
have a responsibility to ensure they have the ability to do 
that as part of the NLRB? Or do you think the NLRB should work 
to discourage members from doing that?
    Mr. Emanuel. The NLRB, I think, is neutral on that. The 
NLRB exists to protect the rights of employees if they wish to 
engage in collective bargaining, and the NLRB does an 
incredibly good job at doing that.
    Senator Murray. You couldn't give me an example of when you 
did represent a union or advocate for a worker?
    Mr. Emanuel. No, Senator. In the field of labor law, as a 
practical matter, lawyers practice either on the employer's 
side or the union's side, and you just don't do both. It's not 
feasible. There is a long tradition at the NLRB of labor 
lawyers----
    Senator Murray. I've got to move on, because I only have 5 
minutes, so I appreciate your----
    Mr. Emanuel. I'm sorry. Sure.
    Senator Murray. Let me move to Mr. Kaplan. President Trump 
claimed to have workers' interests at heart. I'm concerned 
about his track record since he's been in office. Let me ask 
you this. President Trump's businesses have repeatedly been the 
subject of cases at the NLRB. For instance, in November, the 
Board held that a Trump Hotel in Las Vegas violated the 
National Labor Relations Act by refusing to bargain with the 
union that represented housekeeping, food and beverage, and 
guest services workers.
    While there are a number of cases pending against the Trump 
organization that were settled last year, there are still a 
number of open cases involving President Trump's businesses 
before the Board. This is really an unprecedented situation, 
and it's really created by the President's refusal to divest 
his business assets.
    I wanted to ask you how are you going to address these 
cases that may come before you against the business of the 
person who actually nominated you?
    Mr. Kaplan. The Board is entirely independent. We're 
appointed to terms, and we can only be removed for cause. If 
and when such a case comes before us, I can pledge I will go 
down to my ethics officer to ensure that there's no ethical 
issue with us participating in the case or me adjudicating the 
case. On top of that, you know, as a fundamental matter, the 
name on the business or the owner of the business should not 
have any effect on any decision we make. That's the pledge we 
take when we go to the NLRB and take an impartial role there. 
It's the same sort of thing with any business.
    Senator Murray. So you would recuse yourself if the ethics 
officer said that that needed to happen?
    Mr. Kaplan. Absolutely. I would never argue with my ethics 
officer.
    Senator Murray. All right. I have other questions, 
obviously, and a short amount of time when we have an 
Appropriations Committee markup at the same time as this 
hearing. I will have to submit them for the record. I'm 
especially interested in Mr. Pizzella's take on how he's going 
to implement a 20 percent budget cut. I will submit that for 
the record.
    The Chairman. I'd be interested in that, too, Senator 
Murray.
    Thank you, Senator Murray, and we understand that you have 
other responsibilities with the Appropriations Committee this 
morning.
    Senator Cassidy.

                      Statement of Senator Cassidy

    Senator Cassidy. Mr. Pizzella, over the last 8 years, 
there's been a lot of working families who really have 
struggled, and there's been weak GDP growth, tepid productivity 
growth, and, in a sense, as we move more toward the information 
economy, which should be increasing productivity, it just 
doesn't seem to have translated into higher wages. Part of your 
position will be to somehow create better job opportunities for 
those working families who have suffered over the last 8 years 
from everything that they have.
    Any thoughts on that? How do you go about that?
    Mr. Pizzella. A couple of thoughts. I do subscribe to 
former President Kennedy's theory that a rising tide lifts all 
boats. I think anything that can be done by the executive 
branch with Congress to create more economic growth and an 
environment for entrepreneurs and businesses to start will help 
everybody.
    Second, I think----
    Senator Cassidy. Are you suggesting by that, implicitly, 
that it's going to be the small businesses which lead job 
growth as opposed to the larger corporations?
    Mr. Pizzella. Yes. Most new businesses started up in this 
country, as you know, are small businesses, and the majority of 
businesses that are working today fall into the small category, 
though the headlines often deal with the large companies.
    Senator Cassidy. So regulatory reform, tax relief would be 
kind of, I'm sure, a keystone----
    Mr. Pizzella. They both would be important to helping 
create a better atmosphere for economic growth. I also think--I 
think some of you are probably familiar that President Trump 
and many of you and a few of the members I've met with--Senator 
Franken, in particular, and Senator Collins--have expressed a 
real interest in the apprenticeship effort that President Trump 
has laid out. He has issued an Executive order, I think, last 
month with some very specific plans and goals that the 
Secretary of Labor is now, I believe, in the process of putting 
together.
    The President wants something to happen sooner rather than 
later, and it also involves the Secretaries of Commerce and 
Education so that there can be some cooperation among the 
executive branch agencies to make sure that some of those 
people who are either underemployed or unemployed, in 
particular, have another opportunity, another pathway, rather 
than what's always been a traditional pathway, and that is to 
get a skill through an apprenticeship program that they can 
turn into a career, and a skill that is portable, so if they 
end up moving to Louisiana from Connecticut, the skill they 
have will still be useful there. I think tax and regulatory 
relief combined with, particularly, the apprenticeship program 
and other aspects of the training effort will go a long way to 
help.
    Senator Cassidy. You have a couple of guys next to you up 
for NLRB. Without passing judgment necessarily on the wisdom, 
it's been a very active NLRB and very active in the setting of 
small businesses, micro-unions, for example. I keep on thinking 
of the immigrant who has a subway sandwich shop in Zachary, LA, 
who now has two folks who can unionize on.
    Any thoughts as to the impact of those rulings upon the 
ability of small businesses to start and grow?
    Mr. Pizzella. I think I'd be a little out of my lane on 
that. The National Labor Relations Board is the one that----
    Senator Cassidy. Let me go over to you, Mr. Kaplan.
    Mr. Kaplan. Could you repeat the question one more time? I 
just want to make sure I get it correct.
    Senator Cassidy. Mr. Pizzella mentioned that regulatory 
problems have--I'll put it this way. If we're going to start 
growing jobs so that the middle class and the working families 
begin to have more opportunity, you have to look at both tax 
relief and regulatory relief, because there's been an 
environment which has inhibited that growth.
    The NLRB has actually put forward a fair number of 
regulations which have made it quite difficult for the small 
businesses to grow. When I speak to my small businesses back 
home, they're kind of pulling their hair out. One guy said, ``I 
just spent 2 weeks staying out of jail, vis-a-vis, government 
regulations, as opposed to growing my business.''
    Any thoughts about the NLRB's decisions over the last 8 
years, how that's either improved or decreased the ability of 
these small businesses to create jobs?
    Mr. Kaplan. I can tell you my in-laws share some of the 
frustration that you've stated today. They run a small 
business, and they have definitely had their ups and downs.
    With regard to the NLRB, we adjudicate the case based on 
the facts that are presented to us and look at the case in an 
impartial manner. To that effect, we carry out the tenets of 
the act and the amendments. I'm not really sure, I assume 
you're talking about the joint employer standard and things 
like that. In the event that those cases come before us, I can 
promise you that I will look at them in a fair and impartial 
manner and make a determination based on the facts before me.
    I'm not inclined to prejudge an issue without the benefit 
of staff 's opinions, and, in fact, in some cases, it might be 
appropriate to seek public input, which would give an 
opportunity to these small businesses to provide us with what's 
happening in their situations.
    Senator Cassidy. I'm out of time. I yield back.
    The Chairman. Thank you, Senator Cassidy.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Thank you, Mr. Chairman.
    I wanted to start this morning with a reference that the 
Chairman made about the National Labor Relations Act. In my 
home State of Pennsylvania, we've had a good portion of our 
history, decades and decades and decades, until the more modern 
era, where workers were mistreated routinely. It was common 
practice, and that was--I think the experience of Pennsylvania 
was one of the reasons why we ended up with a National Labor 
Relations Act in the first place. It was one of the States 
whose experience was a predicate for finally coming together to 
enact the NLRA.
    The language in the preamble as well as, of course, the 
statute itself is critically important. The language that 
you've all heard before,

          ``Experience has proved that protection by law of the 
        right of employees to organize and bargain collectively 
        safeguards commerce from injury, impairment, or 
        interruption and promotes the flow of commerce,''

and it goes on from there.
    This isn't simply an act that decided that one group of 
Americans were badly treated and, therefore, we should remedy 
that with a statute. That's certainly part of the intent. The 
focus of the act, one of the intended outcomes, was that there 
would be the free flow of commerce. That's critically important 
to remind ourselves all these years later, and some of the 
reasons that we had to pass this law in the first place are 
still with us today, as you know.
    I'll start with each of you, and these are simple 
questions. I hope we'll get yes, yes, yes. First of all, do you 
agree with the National Labor Relations Act in total?
    Mr. Emanuel?
    Mr. Emanuel. Yes, Senator. Yes.
    Senator Casey. Mr. Kaplan?
    Mr. Kaplan. We're bound by its language and its amendments, 
yes.
    Senator Casey. Mr. Pizzella?
    Mr. Pizzella. The Department of Labor does not administer 
that act. I agree with it, yes.
    Senator Casey. Thank you. Should it be the policy of the 
United States to protect the rights of employees to bargain 
collectively?
    Mr. Emanuel?
    Mr. Emanuel. Yes, that's one of the statements in the 
statute, yes.
    Senator Casey. Mr. Kaplan?
    Mr. Kaplan. Yes, I would agree.
    Senator Casey. Mr. Pizzella?
    Mr. Pizzella. Yes, sir.
    Senator Casey. I guess I have to ask you, because you're 
here to seek support for nominations, what have you done in 
your career that would provide evidence that you support those 
policies? What would you do, if confirmed to the Board, to 
encourage collective bargaining and protecting the rights of 
workers?
    Mr. Emanuel?
    Mr. Emanuel. During my career, Senator, I have represented 
many employers, giving them legal guidance on their actions 
under the National Labor Relations Act, what they're required 
to do and how they're required to do it. By providing that 
guidance to my clients, I have furthered the purposes of the 
statute, as I see it.
    Senator Casey. Any experience representing workers?
    Mr. Emanuel. No, Senator. As I mentioned earlier, in the 
field of traditional labor law, lawyers either represent 
employers or they represent labor unions and workers in 
conjunction with that, and you don't cross over. It's just not 
feasible for reasons that I don't think we need to go into. 
It's just not practical. My entire career was representing 
employers, and I've not represented unions or employees.
    There are many excellent law firms that represent unions. 
We deal with them all the time, and they represent their 
clients and we represent our clients, and, hopefully, 
everything works out peacefully, and usually it does. 
Occasionally, there are disruptions, and then we deal with 
them, but that just goes with the territory. In the vast 
majority of the cases, that doesn't happen.
    Senator Casey. Mr. Kaplan, after your answer, I'll be done. 
I'm out of time.
    Mr. Kaplan. Yes, 6 seconds. Certainly, when I was working 
for Members of Congress, I was doing what they asked me to do 
and I was their employee. Oversight, in particular, was one of 
the areas where we were ensuring that the Board and the 
Department of Labor worked within the confines of the 
authorizing statute. More than that, with regard to legislation 
that Chairman Kline moved while he was chairman, some of the 
provisions in there, I would definitely think, in general, 
protected employee rights but were--some of them were union--
would assist a union in organizing.
    Senator Casey. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Casey.
    Senator Paul.

                       Statement of Senator Paul

    Senator Paul. Congratulations to all of you. I guess the 
first question really is to Mr. Kaplan and Mr. Emanuel. The 
question is about when you can decide fairly, someone's case. 
If a person is a Republican and owns a business, will you treat 
them differently than a Democrat? Will you treat a case 
differently if it's labor versus owners, unions versus owners? 
Can you go into any decisions with presuppositions that would 
disallow you from making a fair decision, no matter who owns 
the business?
    Mr. Kaplan. The short answer is no. We go in with blinders 
on, as it should be. It doesn't matter who owns the business. 
It doesn't matter who the employees are--he or she employees. 
It doesn't matter what they do. It's very fact-intensive, and 
we evaluate the facts in an impartial manner, and I can pledge 
that I would do that at the NLRB. We do the same thing at 
OSHRC. It doesn't matter who the employers are, except for 
repeat violations and things like that. We analyze it from the 
perspective of looking at the case, looking at the facts, and 
coming to a good decision.
    Mr. Emanuel. I agree, Senator. Our job is to enforce the 
law, and it doesn't matter what the names of the parties are.
    Senator Paul. Mr. Pizzella, your position is a different 
one, in the sense that you do work for an administration that 
is a political party. I think most Americans want people in 
government to--I think there's something that I like to refer 
to as petty partisanship, that you're just blindly for whatever 
Republicans are for.
    Will you in your job look at issues based on what's best 
for all Americans regardless of what party they're in, 
understanding that we all have viewpoints over what would work 
best for Americans? Do you think you can do that without 
resorting to petty partisanship or blindly being for things 
just because Republicans are for them?
    Mr. Pizzella. Yes, Senator. I think the administration of 
law should have nothing to do with partisan politics. I think 
you know that the Secretary of Labor, Secretary Acosta, is by 
background a former U.S. Attorney, a former Assistant Attorney 
General, and a former member of the NLRB. He's a lawyer's 
lawyer, and he has stated before this committee that respect 
for the individual and respect for the law are two things that 
guide him, and they certainly will guide the department. 
Partisanship will have no place in administering the laws.
    Senator Paul. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Paul.
    Senator Franken.
    Senator Franken. I know that Senator Murphy has to go 
somewhere. I have nowhere to go, evidently, so I will yield.
    [Laughter.]
    The Chairman. Senator Warren is next, but if she wants----
    Senator Franken. Oh, well.
    Senator Warren. We're also trying to cover Banking. That's 
part of the problem. Can I go ahead and do mine now? Is that 
all right with everybody?
    The Chairman. You're next in line.
    Senator Warren. I'll do it, then.
    The Chairman. Senator Franken defers.
    Senator Warren. Is that all right with you?
    Senator Franken. I feel tricked.
    [Laughter.]

                      Statement of Senator Warren

    Senator Warren. Are we good? OK.
    I want to followup on some of these questions about 
impartiality. For the last few decades, productivity has 
increased but workers haven't shared in that growth. Hourly 
wages have been virtually flat, adjusted for inflation, for 
about 35 years now. One reason is the decline of unions, which, 
according to the Economic Policy Institute, accounts for about 
20 percent to 30 percent of the increase in earnings in 
equality in the United States.
    This wasn't an accident. For decades, giant corporations 
and their buddies in Congress have waged attacks on unions, and 
it's the NLRB's responsibility to stand up to these efforts by 
enforcing the laws that protect workers' rights.
    Mr. Emanuel, you've spent most of your career as an 
attorney at Littler Mendelson, one of the most ruthless union-
busting law firms in the country. I want to understand how 
Americans can trust that you're going to protect workers' 
rights when you've spent 40 years siding with employers against 
the rights of workers.
    Mr. Emanuel. Of course, Senator, I wouldn't agree with your 
characterization of my law firm, which is the largest law firm 
in the world representing many employers in labor and 
employment law matters, primarily employment law, but some of 
us practice traditional labor law. Senator, if I am confirmed, 
when I join the NLRB, as I said in my opening statement, that 
will be the greatest honor of my career, and I plan to be an 
excellent Board member and an honest Board member and an 
objective one and enforce the law, enforce the statute, the 
National Labor Relations Act, as it is written by Congress.
    Senator Warren. Let's talk about how it is written by 
Congress, because I understand the difference between a lawyer 
and a judge, but the National Labor Relations Act says that it 
is the policy of the United States to encourage workers to 
bargain collectively, not to be neutral about collective 
bargaining and unionization. That is the law, and your entire 
career has been to discourage union membership, and I just 
don't understand how we can rely on you to defend workers after 
a long career of making it harder for them to join unions.
    Let me push to another point. You've also said, Mr. 
Emanuel, that if confirmed, you'll follow the White House's 
ethics pledge and refrain from participating in matters 
involving any of your former clients, which include companies 
like Uber and Rite Aid and Nissan for 2 years. Is that correct?
    Mr. Emanuel. That's my understanding.
    Senator Warren. That's your commitment.
    Mr. Emanuel. That's correct, yes.
    Senator Warren. I just wanted to make sure.
    Mr. Emanuel. Yes.
    Senator Warren. I'm also concerned about your lengthy 
history of work on three particular labor law topics that will 
result in serious conflict of interest. You have written 
extensively on whether employers can require workers to waive 
their rights to class actions, whether employers can prevent 
union workers from protesting on their property, and what the 
boundaries of a bargaining unit should be. Some of your views 
are pretty extreme and go to the heart of cases that the NLRB 
might decide.
    For example, you have argued--and I'll quote you here--that 
an arbitration agreement that is inconsistent with the NLRA, 
the law, is nevertheless enforceable, and that, ``many 
employers suffer when employees are able to organize in the 
workplace without being arrested for trespassing.''
    In cases involving these three matters--class resolution, 
workplace organizing, and bargaining unit boundaries--if they 
come before the Board during your tenure, will you recuse 
yourself? You've already written about them. Will you recuse 
yourself on those?
    Mr. Emanuel. Senator, as I understand the recusal rule, I 
have to recuse myself from all cases involving my law firm, and 
if there are elements of the recusal requirement that go beyond 
that, I will learn that in an ethics briefing that I will 
undergo after I join the Board. I do not believe, however, that 
recusal would apply to issues, and the fact that I may have 
advised or written a brief on an issue in the past doesn't mean 
I would have to recuse myself on that issue.
    Senator Warren. I'm over time, but I just want to say on 
this, Mr. Emanuel, it's not the work you did as a lawyer, as an 
advocate. It's when you wrote and put your own name on it, 
independently, as a scholar and as a person who is an expert in 
the field, and I'm just saying you have made it clear that you 
have prejudged in three areas in which you've put your name on 
it.
    Giant corporations have----
    The Chairman. Everyone else is----
    Senator Warren. Fair enough. Fair enough.
    The Chairman. Go ahead and complete your sentence.
    Senator Warren. Thank you. All I want to say is I think the 
American people deserve better.
    Thank you, Mr. Chairman.
    The Chairman. Senator Young,

                       Statement of Senator Young

    Senator Young. Thank you, Mr. Chairman. I want to thank our 
panelists and welcome them here today.
    We'll begin with the skills gap, a really important topic 
in my State of Indiana, the most manufacturing-intensive State 
in the country. We discussed this, Mr. Pizzella, when you and I 
visited in my office. Today's workforce is quickly changing, 
with the advent of new technologies seemingly every day that 
are disrupting how we work, where we work, the types of 
industries in which we work, and our education system is 
struggling to keep up.
    We try and consult with our community college system in the 
State of Indiana, Ivy Tech. It's a statewide system, and they 
consult with local companies to inform development of their 
curriculum.
    In our K through 12 system, we have more Hoosier students 
right now than ever before that are taking career and technical 
education classes. In fact, as of last year, over 50 percent of 
all high school students in Indiana were enrolled in such 
classes--over 160 approved courses, and many of these courses, 
of course, didn't exist a couple of years ago, 5 years, 
certainly 10 years ago.
    Mr. Pizzella, if confirmed, as I believe you will be, as 
Deputy Secretary of Labor, to what extent should local 
industries and businesses be part of the CTE discussion?
    Mr. Pizzella. Thank you for your question, Senator. They 
should be a big part, and we did have a discussion about 
Indiana and the exceptional programs that they have in place 
and are growing. I didn't realize--I made a note of it--50 
percent of your high school students are in the technical area, 
and I don't know how that rates among other States, but I bet 
it's very, very high, because it's good that technical training 
is coming back. There was, I think, a period in time when maybe 
it wasn't looked upon as fondly.
    There are States with exceptional stories like that. I'm 
familiar with the State of South Carolina, who early on was a 
bit of a pioneer in putting in place--working with companies 
that they were trying to attract, local communities that had 
laid-off workers from industries--be it textiles or tobacco--
that were no longer growing, and working with the State 
government, and they put together a series of technical 
colleges around their State. I learned about this when I was in 
school there, how important it was to attract particular 
businesses.
    The reason, BMW landed in South Carolina didn't have 
anything to do with the sunshine. I think it was a package that 
they looked at. I'm a big believer in what you're advocating, 
and I hope to work with you on that.
    Senator Young. That's great. Do you think, based on your 
professional experiences, that our young people are 
sufficiently informed about their post-secondary options, about 
their workforce options after they finish high school? Because 
I'll tell you--I'll reveal my thoughts. As I travel around the 
State of Indiana, there are some bright spots where creative 
things are occurring in our high schools, even in junior high 
and elementary schools. I get the sense that there's a real 
need for improvements in this area. If, in fact, you agree, how 
at the Federal level might we be a force multiplier?
    Mr. Pizzella. I do agree, and I think one of the solutions, 
perhaps, would be working with the Department of Education and 
maybe nudging guidance counselors across the country to make 
sure that the students that they're advising know about these 
pathways for technical skills and technical education and a 
career afterwards that may not involve a full commitment to a 
4-year college, because that might not be what's suitable for 
them, or it might not be what they actually will enjoy. I think 
cooperation among the DOL and Education would be very helpful 
in that area.
    Senator Young. Continuing with my line of questioning about 
technology-focused curriculum in my State of Indiana, in 2015, 
South Bend Code School was launched as a result of a 
partnership with Fort Wayne, a major city located in northern 
Indiana. This school teaches coding and computer programming to 
Hoosier children ages 7 to 18. Over 100 students have completed 
the program, and another 600 are in the process.
    To what extent, Mr. Pizzella, do you believe technology 
should be embedded into our courses as we prepare our next 
generation workforce? As Deputy Secretary of Labor, what role 
do you envision playing in this constant challenge of adapting 
to new technology and its importance in our workforce?
    Mr. Pizzella. If I heard your question correctly, Senator, 
I don't believe the Department of Labor should be imposing on 
local communities and schools. I think we should be encouraging 
them to do what you're suggesting there. I also just think it 
makes common sense, because that's one of the areas where 
there's going to be real growth and real need in the future, 
and that's technical skills for particularly light 
manufacturing companies that want to expand here in America and 
some that want to locate here to be closer to our markets.
    The Chairman. Thank you, Senator Young.
    Senator Franken.
    Senator Franken. Thank you, and Senator Murphy now says I 
can go. I feel like such a chump, frankly, for what happened.
    [Laughter.]
    The Chairman. It was a generous and liberal gesture, 
though.
    Senator Franken. I guess sometimes being liberal ain't so 
smart.
    [Laughter.]

                      Statement of Senator Franken

    Senator Franken. I'd like to associate myself with Senator 
Young's message about skills gaps, and we talked about that at 
great length, Mr. Pizzella, yesterday. I'd like to talk to you 
about an issue which we also discussed in my office, and I told 
you that I would probably ask you about this in the hearing.
    As many people recall, Jack Abramoff is a disgraced 
lobbyist who served 43 months in prison for bribing Federal 
officials and stealing millions of dollars from his clients, 
and he wasn't alone in his actions. Twenty-one other Abramoff 
associates were convicted in connection with the Abramoff 
scandals.
    You were a key member of Jack Abramoff 's lobbying team 
from about 1996 to 2001. In fact, Abramoff wrote about you in 
his book where he described your 1996 hire as the ``perfect 
addition to the quickly emerging Team Abramoff team.''
    At the time you were a member of Abramoff 's lobbying 
operation, the Northern Mariana Islands--which had become a 
U.S. territory in 1975--were not subject to the same minimum 
wage, and that was passed in 1978, and immigration laws as the 
rest of the United States, and there were widespread reports at 
the time that workers faced terrible conditions, including 
reports of--many of these employees were women brought from the 
Philippines and from China--who were told they were going to 
America, and they ended up in these jobs in the Northern 
Mariana Islands, and there were forced abortions, prostitution, 
and routine beatings.
    You've been nominated to a position where you'll be closely 
involved with enforcing minimum wage laws and other worker 
protections. Yet, as we discussed in my office, one of the key 
issues you lobbied on was to block bipartisan legislation for 
basic worker protections in the Northern Mariana Islands, where 
garment manufacturers could produce clothing labeled made in 
the U.S.A. without having to comply with U.S. minimum wage 
laws. In fact, the Mariana Islands were your firm's largest 
lobbying client.
    Obviously, that is a concerning history for someone who 
will now be charged with enforcing worker protection laws. Were 
you aware of those horrible conditions even while you lobbied 
against minimum wage protection for workers?
    Mr. Pizzella. First of all, Senator, thank you. You did say 
you intended to ask the question, and I appreciate that in our 
meeting yesterday, and I'm prepared to address the issue. I was 
not aware of any such thing. I did not know. I just learned 
that 21 of Mr. Abramoff 's colleagues were also convicted of 
wrong----
    Senator Franken. Let me just----
    Mr. Pizzella. I was not one of them. I just want to be 
clear about that. I was never----
    Senator Franken. I understand that. Congratulations on 
that.
    [Laughter.]
    Mr. Pizzella. Thank you.
    Senator Franken. The fact that you didn't know this while 
you were lobbying--in 1992, Representative George Miller held a 
hearing on the issue. The New York Times and other major 
publications ran a number of stories on the issues dating back 
to at least 1993.
    In 1997, President Clinton wrote a letter to the Governor 
in the Northern Mariana Islands who had hired Team Abramoff to 
oppose raising minimum wage. In the letter, Clinton declared 
working conditions on the island to be inconsistent with our 
country's values.
    In 1998, Senator Frank Murkowski, one of our member's 
father, visited the islands and found, ``living conditions that 
simply should not exist in the United States of America,'' and 
he introduced legislation to stop the terrible abuses that were 
taking place. Did you and the so-called Team Abramoff lobbyists 
lobby against the Murkowski legislation?
    Mr. Pizzella. We might have. I don't actually remember if 
we lobbied against that legislation, but I would assume we did.
    Senator Franken. Would it bother you to know that you were 
lobbying against protections for thousands of workers who were 
being abused? Would that bother you?
    Mr. Pizzella. Of course, it would. What you've mentioned 
were allegations made. We were----
    Senator Franken. Allegations that were documented many 
times over and over again while you were lobbying against----
    Mr. Pizzella. Increasing the minimum wage.
    Senator Franken [continuing]. Increasing the minimum wage.
    Mr. Pizzella. Yes.
    Senator Franken. What I'm saying is these were documented. 
They aren't just accusations. I just think that these stories 
are really sordid, and I think that if someone who is going to 
be in your position--I'm sorry. I'm over my time. I think this 
is a pretty shocking history to have been involved in, and I'll 
put into the record some of the reporting that was done over 
this period.
    [The information referred to was not available at time of 
press.]
    Senator Franken. It was hard to miss, and it would be 
especially hard to miss if you were lobbying against Senator 
Murkowski's legislation, which was speaking directly to the 
horrible abuses that were happening in the Northern Mariana 
Islands at the time.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Franken.
    There's an Appropriations markup that I need to go vote in, 
and Senator Isakson has agreed to chair the committee while I'm 
gone. We'll go next to Senator Murphy and then next to Senator 
Kaine, and then I'll be back to ask my own questions after 
that.
    Senator Murphy.

                      Statement of Senator Murphy

    Senator Murphy. Thank you very much, Mr. Chairman.
    As the Chairman departs, I know I'm going to sound like a 
broken record on this issue, but this hearing is really 
important. It's part of our obligation as a committee to review 
the nominations of those that are appointed to boards under 
this committee's jurisdiction, departments under this 
committee's jurisdiction.
    It's also the responsibility of this committee to oversee 
the healthcare policy of this country, and though there is a 
meeting that many people are leaving for in the Appropriations 
Committee, there's also an 11:30 meeting behind closed doors 
attended only by Republican Senators today in which they are 
going to talk about a healthcare bill that reorders one-fifth 
of the American economy that does not come before the Health 
Committee. That continues to be an outrage that is worth 
addressing every time that we meet.
    I appreciate, Mr. Kaplan and Mr. Emanuel, your answers to 
Senator Paul and Senator Warren in which you stated that you 
were going to let the facts lead where they may, let the law 
dictate to these cases, not bring in to the consideration of 
these cases your employment history or your political views. 
You do understand that there are a lot of folks outside this 
place who follow employment law, who follow the NLRB, who do 
think the fix is in, who think that when the two of you are put 
on the Board, you are going to automatically begin the process 
of overturning some very important decisions that were made 
during the Obama administration because of your political views 
and because of your employment history.
    I'll just remind you of something that a great 
Connecticutian once said, which is that when in doubt, tell the 
truth. It will confound your enemies and astound your friends. 
That is Mark Twain, and if you heed his advice, you will do 
just fine.
    Along those lines, let me just ask you both two questions 
based upon a conversation we had in our office regarding a 
matter pending in Connecticut regarding the ability of graduate 
teachers to organize. I won't get into the details of the case, 
because I know it's not appropriate for you to opine on that.
    Let me ask you two more general questions. First, on the 
subject of whether teachers who are also graduate students 
would have the ability to organize, here's the general 
question. Would you agree that the ability to organize, the 
ability to be treated as an employee, is not dependent on your 
compensation coming in the form of a paycheck, that there are a 
whole host of factors that may include compensation coming in a 
form other than a paycheck that would allow you to be 
considered an employee with the right to bargain?
    Mr. Emanuel. Senator, I would say that the question about 
whether a certain individual is an employee under the statute 
would depend on various factors. That might be one of them. We 
would have to look at, again, all the facts involving those 
faculty members and the statute as it's written and the 
arguments of the parties and make a determination as best we 
can, as objectively as we can, as to whether those students are 
employees under the statute.
    Senator Murphy. Mr. Kaplan.
    Mr. Kaplan. I think the issue raises a relatively novel 
one, and we would--I agree with Bill on this, that we would--it 
would be very fact-intensive. We talked about this when we 
spoke in your office. Something like this that's so new and 
hasn't been adjudicated in a thorough fashion--it would 
probably be a good idea to reach out to the community and get 
amicus briefs and understand the positions of all the parties 
involved without--to help inform us as we make those 
determinations.
    Senator Murphy. Just to be clear, this has been 
adjudicated, so this is a decision by the NLRB that gives 
rights very clearly to students who are under these 
circumstances to organize. You would be overturning existing 
precedent should you decide that graduate students who get 
compensation in the form of tuition are not allowed to 
organize.
    Mr. Kaplan. I never meant to imply that I was going to 
overturn or anything like that. We would have to look at the 
facts, though, if a case like this came before us.
    Senator Murphy. Let me ask a second question, which is on 
the issue of units within an employer being able to organize 
distinct from the overall pool of employees. Again, I just want 
to make sure that this is a fact-intensive question when you 
are looking at what we might call micro-units, what we might 
call smaller units, department units, and their ability to 
organize. That is a fact-dependent question as to whether they 
have the legal ability to negotiate separate and aside from the 
entirety of the employees at the company.
    Mr. Emanuel. It's a fact-intensive issue, and we would have 
to consider the facts and also the existing Board law and make 
a determination. In that particular case that we discussed in 
your office yesterday, we're familiar with that case, and I 
went back and checked it, and there were nine separate 
departmental units that were approved in that case, which is 
quite extraordinary. In my experience of many years, I've never 
encountered a bargaining structure like that with nine separate 
departmental units. We would, in that case or any other case, 
look at the facts and decide how to apply the law and make a 
decision.
    Senator Murphy. I'll let it go there. I'm over my time. I 
would just say that, as you know, institutions of higher 
education are extraordinary in that each one of them has a very 
different way of administering departments. At Yale, the 
regional board found very clearly that because each department 
is autonomous in terms of how they treat their employees that 
those department employees were allowed to organize by 
department, and I look forward to you reviewing the facts of 
that case and the precedent that has already been established 
by the regional board.
    Thank you, Mr. Chairman.
    Senator Isakson [presiding]. Senator Hassan.

                      Statement of Senator Hassan

    Senator Hassan. Thank you very much to the Chair and 
Ranking Member and to all of our nominees here this morning. 
Congratulations on your nominations.
    Historically, working class families have been able to gain 
ground economically because of the advocacy of their unions. 
Many important rights and protections can be attributed to 
workers joining forces through unions, including, but not 
limited to, workplace safety and wage and hour regulations.
    We know that working class families today are struggling. 
Wages are stagnant, and benefits many rely on continue to roll 
back. The nominations before us today, the three of you, will 
help determine whether workers will be able to continue to 
effectively join together to protect their interests, and 
that's what I really want to touch on this morning.
    I want to start, Mr. Pizzella, with you. During our 
conversation--and thank you for making time to come see me--all 
of us--on short notice. Thank all three of you for spending 
time.
    Mr. Pizzella, during our conversation, you expressed the 
importance of agencies being more efficient so they're able to 
cut costs. With the Department of Labor's proposed 21 percent 
budget reduction, important programs will be severely reduced 
and even eliminated well beyond implementing efficiencies. New 
Hampshire, for instance, receives $6 million annually under the 
Workforce Innovation and Opportunity Act. That money funds 
meeting workforce demands of our State's employers, training 
dislocated workers, and ensuring that our youth are prepared to 
join the workforce.
    Can you explain how the major cuts in this budget proposal 
supports the President's and the Department's mission to expand 
apprenticeship and other workforce development? In the past, 
have you supported the reduction of official time used by union 
representatives to reduce costs?
    Mr. Pizzella. OK. Let me take that first question. As you 
well know, the President's budget is pending here before 
Congress, and over the course of the next several months, 
there'll be some final resolution of what that budget comes out 
as, and it will be the job of the Department of Labor, and if I 
should be confirmed, I'll be part of the team that will be 
implementing that budget. I do believe that there are always 
efficiencies that can be made and improved.
    I would also point out that part of the budget that the 
President has proposed specifically places increases, slight 
increases, in the enforcement agencies, which is the core part 
of the mission, historically, of the Department of Labor. In 
the area of EBSA, there's an uptick. In the Wage and Hour 
Division, there's an uptick. In OSHA, there's an uptick.
    Senator Hassan. I'm going to interrupt a little bit because 
I've got three of you here. Just in terms of the apprenticeship 
and training programs, how are we going to strengthen those 
programs with a 21 percent cut in the budget?
    Mr. Pizzella. The apprenticeship program is a major 
priority of the Administration, and I believe it will get the 
appropriate amount of focus and resources that are needed to 
carry out what the President would like to see carried out. I 
can't tell you about that now, because I'm not there, and the 
Executive order was just signed last month. I know there's a 
lot of activity to implementing that, to getting cooperation 
from both the Secretaries of Commerce and Education, and I know 
this is a major priority for Secretary Acosta. The 
apprenticeship program----
    Senator Hassan. I'm sorry to cut you off, but I have two 
other witnesses in a hearing that we're trying to have on three 
different nominations. Thank you for that, and I'll ask you to 
respond to my question about the use of official time on the 
record, please.
    Mr. Emanuel, you've had a long career as an employment 
lawyer and certainly have spent that time advocating for 
business interests in both the labor and employment side on the 
management's side of negotiating. As we discussed, I'm a former 
labor and business attorney myself, and I've represented large 
employers, too.
    In my previous position, often on the management side of 
the bargaining table, I developed a great appreciation for the 
value that unions brought to workers from ensuring safe 
workplaces to good pay and benefits that help people live 
middle-class lives. Can you explain a case or reference a case 
you've worked on where you were able to recognize the positive 
impact unions have on a contract outcome?
    Mr. Emanuel. In the typical case in which I was involved at 
the bargaining table, the wages and benefits generally tended 
to increase, so I would have to say that that's an example. 
It's a recurring example. It didn't happen in every case. 
Sometimes there were reductions, but they were necessary, and 
sometimes the wage and benefits stayed the same. As a general 
rule, when a new contract was negotiated, the wages would go 
up, at least some, and benefits tended to go up, too, and 
that's a real generalization, but it's sort of typical.
    Senator Hassan. Thank you. I see my time is up. Mr. 
Emanuel, I'll submit a question or two for you, especially 
about joint employer rulings, to the record.
    Thank you, Mr. Chair.
    The Chairman [resuming the chair]. Thank you, Senator 
Hassan.
    Senator Kaine.

                       Statement of Senator Kaine

    Senator Kaine. Thank you, Mr. Chair, and thanks to the 
witnesses. Congratulations on your nominations.
    To begin with the nominees for the NLRB, Mr. Emanuel, I 
understand that you authored a brief on behalf of Republican 
lawmakers, including Senator Enzi, who was then ranking member 
of the committee, and others against the NLRB's 2011 decision 
in the Specialty Healthcare case. Is that correct?
    Mr. Emanuel. I assisted in that brief, yes.
    Senator Kaine. If I understand correctly, Mr. Kaplan, after 
that decision was rendered, you, as a member of a congressional 
staff, helped draft legislation to try to overturn it. Is that 
correct?
    Mr. Kaplan. It would have been Chairman Kline's 
legislation. Yes, that's correct. I was his counsel.
    Senator Kaine. Since you're here--and I'm going to put you 
under oath--you don't have to be modest. You can say you were 
involved. I recognize it was the chair's bill. Thank you for 
that.
    The employer community and many Republicans in Congress 
after that ruling vehemently denounced it, and they said that 
the Board's decision would allow for micro-units that would 
make it impossible for employers to prevail in union elections 
and it would open up employers to these tiny gerry-mandered 
units. Do you know what the average bargaining unit size was in 
2011 before the Board issued its decision in the Specialty 
Healthcare case?
    Mr. Kaplan. It's one of the reasons why, frankly, saying 
micro-units is probably a poor way to address this issue. In 
fact, some of the units that they talk about even now are 
smaller than the units that they've objected to with regard 
to--under the Specialty Healthcare----
    Senator Kaine. The average size of the bargaining unit was 
26. Do you know what the average bargaining unit size was last 
year?
    Mr. Kaplan. No, I don't.
    Senator Kaine. Exactly the same, 26. It didn't have the 
effect that many were worried that it was going to have.
    Do you know, either of you, Mr. Emanuel or Mr. Kaplan, how 
many Federal appeals courts have upheld the Board's decision in 
Specialty Healthcare since that decision was rendered in 2011?
    Mr. Emanuel. There have been several decisions by the 
appellate courts, and I would add that on the subject of 
appropriate bargaining units, the appellate courts give the 
NLRB extreme deference. So it's not surprising that that was 
the result by the appellate courts.
    Senator Kaine. For the record, seven appellate courts have 
upheld decisions that apply to the Specialty Healthcare 
decision, and there have been none that have reversed 
decisions. The appellate courts have generally found that OK, 
and it didn't change the size of the bargaining units as many 
predicted that it would, and I think that's important.
    Mr. Pizzella, I want to ask you a question. We talked about 
workforce issues. You indicated one of the Department's top 
priorities in your conversations with the Secretary has been on 
the apprenticeship side, and just to follow the line of 
questions you were having with Senator Hassan, the President's 
proposed budget to us has the apprenticeship funding level at 
pretty much exactly the same level as it was under the previous 
administration.
    Mr. Pizzella. That's correct.
    Senator Kaine. The President's proposal with respect to all 
other workforce programs is a 40 percent cut. I think the 
proposed DOL cut might be 21 percent, but the cut to all other 
workforce programs is about 40 percent. Tell me what you 
understand about why workforce programs are suggested to be cut 
by such a dramatic amount.
    Mr. Pizzella. I was obviously not involved in the 
formulation or development of it. From my past experience, 
there's, I'll say, often a healthy skepticism as to whether or 
not a lot of training programs deliver real outcomes that lead 
to successful careers and jobs for folks.
    Senator Kaine. In your previous experience--what experience 
are you talking about?
    Mr. Pizzella. When I was at the Department of Labor, and we 
were putting together budgets----
    Senator Kaine. Just for the record, the years you were at 
the Department of Labor?
    Mr. Pizzella. 2001 to 2009--January 2009.
    Senator Kaine. You're aware that the Senate and the House 
together did significant reforms in 2014.
    Mr. Pizzella. I am.
    Senator Kaine. This committee worked in a bipartisan manner 
on those reforms. One of the hallmarks of the reform was some 
significant streamlining of the workforce programs, correct?
    Mr. Pizzella. Yes, I'm aware of that.
    Senator Kaine. Is it your opinion--skepticism about whether 
training dollars are being used at their maximum efficiency 
would seem normal. We always should want to use programs at 
their maximum efficiency. Is it your opinion that we spend too 
much on job training in this country?
    Mr. Pizzella. No. My opinion would be more that we're not 
as focused as we should be on how we spend those dollars, and I 
think that's what's part of the--what has propelled this real 
interest in apprenticeship training right now, which has seemed 
to have taken off with a life of its own just in the last 
couple of years, and it wasn't mentioned as prominently 10 
years ago as it is now. Meeting not only with you--you 
obviously have a lot of expertise in this--but meeting with 
just about every one of your colleagues, that was the first 
thing they brought up.
    Senator Kaine. Can I just say--and I agree that 
apprenticeship is great. I like to see that that budget is not 
slashed by 40 percent. Spending money better on job training--
what a great idea, but cutting job training by 40 percent--what 
a bad idea. I know you didn't prepare the budget. That is more 
a question for the OMB director.
    At a time when the President is saying, skills are where 
it's at, and we need to give people more skills, taking 40 
percent out of job training causes us some very significant 
concern about whether that's a hollow promise or a promise that 
is going to be met. I hope you'll be a strong advocate for job 
training programs.
    Mr. Pizzella. I'm going to----
    Senator Kaine. That are effective.
    Mr. Pizzella. Yes, absolutely, that are effective, of 
course, yes.
    Senator Kaine. No further questions, Mr. Chair.
    The Chairman. Thank you, Senator Kaine.
    I have not asked my questions yet, but I think Senator 
Franken wanted to ask a second round of questions. Does any 
other Senator wish to do that?
    Senator Franken. I do, but, I mean----
    The Chairman. No, no, I'm just checking to see. If no one 
else does, what we'll do is go to your questions, and then I'll 
ask mine, and then we'll conclude the hearing.
    Senator Franken. Thank you for that.
    The Chairman. Senator Franken.
    Senator Franken. Thank you very much. I'd like to enter 
into the record the Preston Gates lobbying registration 
disclosure from September--I guess it was filed by the 
Secretary of the Senate--September 6, 2000, and includes that 
lobbying disclosure on the Commonwealth of the Northern Mariana 
Islands against the--on the Murkowski legislation, and it has 
Patrick Pizzella's name on it. I'd like to enter that into the 
record, please, because he wasn't clear whether he had lobbied 
on that.
    [The information referred to may be found in Additional 
Material.]
    In 2014, the NLRB modernized rules that apply when workers 
seek to form a union. Under the updated rules, workers who 
petition for union representation will be able to have a vote 
as soon as it is practical rather than potentially facing 
months or years of delays by companies seeking to avoid 
recognizing a union.
    Mr. Kaplan, when you were a congressional staffer, you 
drafted the Workforce Democracy and Fairness Act. Is that 
right?
    Mr. Kaplan. As a staffer of Chairman Kline, yes.
    Senator Franken. One key provision of that bill would 
change the NLRB's election rules to say that workers can't vote 
on union representation for at least 35 calendar days, even if 
there's no other valid reason to delay the election. Is that 
right?
    Mr. Kaplan. I'm not sure about that second part. I'd have 
to go back and review the legislation itself. Chairman Kline, 
when he pushed that forward, he would regularly say,

          ``No one voted for me in less than 35 days, and I 
        would afford employees the same opportunity to be able 
        to make an informed decision with regard to choosing 
        their union representation.''

    Senator Franken. Do you know how many days it's been since 
you were nominated to the NLRB?
    Mr. Kaplan. I believe someone said 23.
    Senator Franken. Yes, that's right. If the nomination 
markup takes place as scheduled on Wednesday, July 19, the 
markup will be 29 days after your nomination. Mr. Emanuel's 
hearing would be--today is 14 days after your nomination and 20 
days--the markup would be 20 days after your nomination. I 
guess the same rules don't apply for this very important job as 
a member of the NLRB? I guess that same thinking that Chairman 
Kline had doesn't apply to you guys.
    I just think that's interesting, and it seems likely that 
big business will probably push you to change the NLRB's 
modernized election rule if you're confirmed. I just wanted to 
point that out, that, evidently, members of the NLRB just--we 
don't need as much time for them as--what I'm saying is that 
unions should be able to vote sooner than 35 days.
    I want to talk about forced arbitration. Mr. Emanuel, you 
devoted a considerable amount of time to defending employers' 
use of forced arbitration clauses and class action waivers 
which prevent workers from banning together to seek justice in 
a public court of law when they've been cheated or mistreated 
by their employer. Given this experience, I'm concerned about 
your willingness to defend workers' rights under the NLRB Act 
and the Constitution.
    Let's talk about forced arbitration for a moment here. Take 
the case of Gretchen Carlson. She's a former Fox News anchor. 
Last summer, Ms. Carlson sued Roger Ailes for sexual 
harassment. Mr. Ailes' lawyer has tried to force her in a 
private arbitration, arguing that Ms. Carlson had breached a 
forced arbitration clause in her employment contract. Even 
worse, the arbitration clause in Ms. Carlson's contract also 
prohibited her from speaking out about the claims.
    Ultimately, because the contract was with Fox News and not 
Roger Ailes, it was determined that the arbitration clause did 
not cover her dispute. Had her case been forced into 
arbitration, her colleagues at Fox News, many of whom were also 
victims of sexual harassment, would have been left in the dark 
about her case and may never have come forward with their own 
claims, and the well-documented abuse of women at Fox News may 
well have continued.
    Mr. Emanuel, would you agree that one benefit of our civil 
justice system is ensuring that other victims, including 
workers who have faced harassment, are made aware of widespread 
wrongdoing and that such awareness allows them to mitigate the 
harm to themselves?
    Mr. Emanuel. Senator, I am not aware of that case, except 
for reading the headlines in the news, so I can't----
    Senator Franken. What I said was accurate, so can you take 
it as accurate.
    Mr. Emanuel. I'm sorry. Would you repeat it, please?
    Senator Franken. What I said to you is accurate, and why 
don't you just assume it's accurate for the moment instead of 
saying you're not familiar with the case--my depiction of it.
    Mr. Emanuel. What is your question, please, Senator?
    Senator Franken. I'll repeat the question. Would you agree 
that one benefit of our civil justice system is ensuring that 
other victims, including workers who have faced harassment, are 
made aware of widespread wrongdoing, and that such awareness 
allows them to mitigate the harm to others?
    Mr. Emanuel. As a generalization, I would say that the 
civil justice system exists for plaintiffs to sue another 
party. In the employment context, that would be their employer. 
Whatever derivative effect of that might exist, I don't think 
is part of the civil justice system. So, I'm not sure I would 
agree with your statement.
    Senator Franken. May I just followup?
    The Chairman. You are over your time, Senator.
    Senator Franken. OK. Thank you.
    The Chairman. We can come back to it.
    Senator Franken. OK. I'll stay here.
    The Chairman. Senator Hassan.
    Senator Hassan. Thank you.
    Mr. Emanuel, I wanted to take this opportunity to talk 
about the issue of misclassification of employees as 
independent contractors, because it's an issue that comes up 
repeatedly. We have seen misclassification lawsuits regarding, 
for example, drivers who were told that they were independent 
contractors and not employees. In many of these cases, the 
drivers were actually found to be employees.
    More recently, the NLRB's general counsel made public that 
the agency had settled a case with a company which had 
continued to misclassify its employees even in the face of 
multiple administrative decisions finding that its drivers were 
actually employees.
    First, let me ask you: Have you represented any employers 
facing allegations of misclassifications, either at the NLRB or 
elsewhere?
    Mr. Emanuel. Yes.
    Senator Hassan. And, second, I understand that you can't 
speak to the specifics of any case, but do you agree that when 
an employer misclassifies employees as independent contractors, 
not only does it undermine competitors who are following the 
rules, but do you agree that it illegally interferes with the 
workers' right to form unions or act collectively?
    Mr. Emanuel. If the individual is properly classified as an 
employee and not as an independent contractor--and that's a 
very fact-intensive question also involving legal principles, 
obviously--then I would agree.
    Senator Hassan. My question is if they're misclassified as 
independent contractors, and they are told they don't have the 
same rights to collectively bargain or organize as an employee 
would, is that correct?
    Mr. Emanuel. Yes.
    Senator Hassan. Thank you. If you're confirmed, what steps 
will you take as a Board member to curb this epidemic of 
misclassifi-
cation?
    Mr. Emanuel. I'm not sure I would agree with the 
characterization that it's an epidemic. It does occur. I've 
known of cases where employees were misclassified. Like any 
other issue that comes before the NLRB, I would consider the 
facts of the case--and, again, this is a very fact-intensive 
issue--and consider the legal precedents and what the Supreme 
Court has held on the issue and the arguments of the parties 
and the views of all of my colleagues on the Board and make a 
decision as to whether that person was or was not misclassified 
as an independent contractor.
    Senator Hassan. Thank you. I'd suggest you might want to 
look at some of the literature, in particular, in certain 
industries like the construction industry, where the rate of 
misclassification is high.
    Mr. Kaplan, I did want to take this opportunity with a 
second round to touch on the NLRB's joint employer ruling, and 
I want to do it by way of an example. Let's say if employees at 
a janitorial company organized to advocate for the use of safer 
cleaning supplies on the job. They go to negotiate with their 
employer about it, and the company says that they can't 
negotiate with the employees over the supplies because their 
contract with the building owner says that they have to use the 
supplies provided, for instance, by the building owner.
    So now, the employees approach the building owner, but the 
building owner refuses to negotiate about safe cleaning 
supplies because she says she's not their employer. In a 
situation like that, where are employees supposed to go? How do 
they get a chance to sit down with decisionmakers, which, in my 
example, includes the building owner, to address their health 
and safety concerns? Do you agree that there's an issue here?
    Mr. Kaplan. I think identifying the employer that can 
actually fix it, who has the authority to fix it, to actually 
bargain with them to some kind of settlement or some kind of 
agreement is a very important part of this. Not to get off 
topic, but we see that a lot in the OSHA world as well, 
identifying the person that can actually effectuate change.
    It's interesting, but I'm not inclined to pontificate on 
the appropriateness, and it's very fact-intensive, trying to 
figure out who the right employer is; working out whether it is 
a joint employer relationship; looking at who controls what; 
what they can do; do they actually exert control; don't they 
exert control; are they controlling these employees; are they 
not controlling these employees. I think to an extent if you 
don't go through that entire process and that fact-intensive 
process, you rob those employees of the opportunity.
    Senator Hassan. I understand that point. Look, you've 
worked on legislation to overturn the NLRB's Browning-Ferris 
decision on the standard for finding two employers to be joint 
employers. I want you to answer this question within the 
following context. We are in an increasingly fissured 
workplace. If Browning-Ferris isn't the law, and you think it 
was wrongly decided, how can we protect the rights of workers 
now in this kind of fissured, fragmented workplace?
    We have so-called perma-temps, people who are told they're 
temporary employees, but that's always going to be their 
status. We have contractors and other employees. Do you think 
Browning-Ferris was wrongly decided, and, if so, on what 
grounds, and how do we address this?
    Mr. Kaplan. I don't have--I think that the facts need to be 
looked at. I look forward to going to the Board, working with 
my staff, working with the other members to determine what the 
proper standard is for the units in a collective bargaining 
situation. That's a fundamental issue of the Act that the NLRB 
must determine, and it's written into the Act. It couldn't be 
clearer in the language.
    Senator Kaine raised--there's seven cases out there. I 
think that's going to be part of the analysis, looking at what 
the court has done, recognizing where the court has been, 
looking at the facts. I do think when it comes to this multi-
employer bargaining situation, again, I think it's important 
that the public participate, because I think there's a lot of 
cases that maybe have been the highlights, but maybe it would 
be better to understand how it's actually worked out in the 
workplace in maybe the less public situations.
    Senator Hassan. I thank you.
    Thank you, Mr. Chair, for letting me go over time.
    I will likely followup with you in writing about this as 
well. Thank you.
    The Chairman. Thank you, Senator Hassan.
    Mr. Emanuel, earlier questions brought up two cases of 
NLRB, one involving micro-unions, one involving graduate 
students as employees. The intersection of those two cases 
produces some interesting questions to me. I'm a former 
university president trying to understand the impact of those. 
For example, at Yale University, 9 of 56 academic departments 
of graduate students have organized into a micro-union as a 
result of the combination of those two decisions, the 
Northwestern and the Specialty decisions.
    Could one of the elements of bargaining between those 
students and the university be whether it was appropriate to 
teach American Studies at Yale University?
    Mr. Emanuel. Senator, I'm not sure of that and----
    The Chairman. Would it be appropriate for them to bargain 
about whether Yale should have classes before noon?
    What if they wanted to bargain about whether they should 
either give grades--what if they found it too oppressive as 
graduate students to teaching or helping to teach a course to 
give grades to all those smart undergraduates, and they decided 
they just would give pass or fail instead of grades. Would that 
be an appropriate subject of bargaining?
    Mr. Emanuel. Sounds unlikely, but for all of these 
questions, we really can't prejudge them. We would have to wait 
until we get on the Board and look at all the facts and the 
legal precedent and make a decision at that time.
    The Chairman. I know a common complaint that I had when I 
was president of the University of Tennessee was that many of 
the brightest graduate students who helped teach didn't speak 
English well enough for the undergraduate students to 
understand what they were talking about. Would that be an 
appropriate subject of bargaining, if Yale decided that it 
wanted to require its graduate students to be more proficient 
in, say, English if they were going to teach in the graduate 
program there?
    Mr. Emanuel. That's very difficult to say. That's a 
difficult issue, Senator. We would really have to study that.
    The Chairman. Can you tell me whether the Northwestern 
decision applies to undergraduates as well as graduate 
students?
    Mr. Emanuel. The Northwestern decision was the football----
    The Chairman. I believe the Northwestern also was the 
decision about private schools that said that graduate students 
were employees and could organize a micro-union. Am I correct? 
There was a decision. Maybe it wasn't the--there was a 
Northwestern football decision.
    Mr. Emanuel. Football, yes, right.
    The Chairman. There was a decision that said that graduate 
students are employees----
    Mr. Emanuel. That's correct.
    The Chairman [continuing]. And could form a micro-union.
    Mr. Emanuel. That's correct.
    The Chairman. Would that also apply to undergraduate 
students?
    Mr. Emanuel. If that principle--it probably could be 
extended, but we would have to take a close look at that and 
decide whether other students in addition to teaching 
assistants----
    The Chairman. I know that in asking this series of 
questions, I'm asking you to do something you probably 
shouldn't do at a hearing, which is prejudge a case.
    Mr. Emanuel. Yes, right.
    The Chairman. These decisions lead me to some unreasonable 
results. For example, if undergraduate students could organize 
into a micro-union and negotiate whether they wanted to go to 
class before noon and whether they wanted to take American 
Studies or maybe they did not want to take geology, or if it 
were extended to say that--on many campuses, particularly for 
low-income students, they have work-study programs. They're 
employed by the university so they can afford to go to college, 
and if all of those students are suddenly employees who can 
organize a union, that would discourage universities from 
giving those students work-study help.
    The suggestion, apparently, was even made while I was out 
of the room that tuition help might make a student eligible to 
organize a union. If that were the case, clearly, a majority of 
students who go to colleges and universities in the United 
States have tuition aid, and we would have micro-unions 
organized on most of the 6,000 campuses around the country. So, 
I would hope that this Board would be very skeptical about 
extending that line of thinking.
    My time is up. I'll go back to Senator Franken.
    Senator Franken. I'll grant you more time.
    [Laughter.]
    Maybe I don't know my place here.
    Mr. Emanuel, I'd like to followup on your last response to 
my last question, given that my understanding is that you do 
not agree that one benefit of our civil justice system is that 
it is public. Is that correct?
    Mr. Emanuel. No, I would agree that the civil justice 
system is public.
    Senator Franken. Is that a benefit? I mean, in other words, 
I was talking about being forced into arbitration. We were 
talking about this Gretchen Carlson case, where she would have 
had to go to arbitration under the contract with Fox about 
sexual harassment. She ended up suing Mr. Ailes, so she was 
able to have it be public. Part of the arbitration is that it's 
private, and nothing gets out. You said that you didn't think 
there was any benefit to there being awareness about the harms.
    Carlson recently wrote that,

          ``The arbitration process, often argued to be a 
        quicker and cheaper method of dispute resolution for 
        employees, instead has silenced millions of women who 
        otherwise may have come forward if they knew they were 
        not alone.''

    Is it your position that every woman who faces 
discrimination at the hands of their employer should go it 
alone and go at it without the knowledge that their co-workers 
have faced similarly horrendous behavior?
    Mr. Emanuel. Senator, I can't comment on the Gretchen 
Carlson case. I'm only vaguely aware of it.
    Senator Franken. I'm not asking you to.
    Mr. Emanuel. OK.
    Senator Franken. What I'm asking you--I don't understand 
why you seem so confused about this. Let me explain maybe.
    Mr. Emanuel. Thank you.
    Senator Franken. OK. In arbitration, you're forced into an 
arbitration situation. The information stays within--does not 
become public. If you're sexually harassed in an organization 
by--at a company, you can't sue them, because there's a 
mandatory arbitration clause in your contract, in your 
employment contract. Therefore, if you go through that system, 
it isn't public. It means that women who are at the same 
workplace don't hear from other women that they're being 
sexually harassed. I think that's a harm of the mandatory 
arbitration system.
    If you're sexually harassed at a workplace, you should be 
able to go outside the arbitration system so that you're heard 
in court, so that your fellow employees can know what's going 
on. Very often, it gives the other women the courage--in this 
case, women at Fox--gives them the courage to come forward and 
the knowledge to come forward. That's what I'm asking you. Do 
you understand that?
    Mr. Emanuel. I do, Senator, and my reaction is that the 
Federal Arbitration Act allows arbitration agreements, and it 
provides expressly that the agreements must be enforced as 
written. I'm a traditional labor lawyer, and I'm not an expert 
on the Federal Arbitration Act. I would think that that would 
be a very important part of the answer to your question, that 
the agreement very well might be enforceable under that Federal 
statute, which has existed----
    Senator Franken. I think that's a problem. I want to ask 
both you and Mr. Kaplan a question----
    The Chairman. He didn't have a chance to finish his 
sentence.
    Senator Franken. Oh, I'm sorry.
    Mr. Emanuel. That's fine. Thank you, Senator.
    Senator Franken. I thought he had. OK. This is for both Mr. 
Emanuel and Mr. Kaplan. If you take up changes to the NLRB 
election rule, do you think the rule should go through the 
traditional rulemaking process, requiring public comment in 
order to allow all stakeholders to give input?
    Mr. Emanuel. Senator, I'm not an expert on rulemaking under 
the Administrative Procedure Act, but it seems to me the answer 
is that it probably would be required, but I'm not sure.
    Senator Franken. Mr. Kaplan?
    Mr. Kaplan. I'm not entirely sure if it is required or is 
not required, but I do think that public input is an important 
part of--if that rule is brought up or if many of these things 
are before the Board, I think public comment is helpful.
    Senator Franken. My time is up. Thank you.
    The Chairman. Thank you, Senator Franken.
    Thanks to the three of you for being here. I have a final 
question I'd like to ask about the right-to-work laws. Twenty-
eight States now have them, including my own State of 
Tennessee. Kentucky and Missouri enacted right-to-work 
legislation in 2017. In my experience, these have been 
enormously helpful laws to raising family incomes in our State.
    We've attracted the American automobile industry to 
Tennessee, and nothing has come close to helping to create the 
kind of environment that made that a competitive set of 
businesses with more than a thousand suppliers providing good 
wages to families than our right-to-work law. In 2015, the NLRB 
took steps to question whether employees in right-to-work 
States who are not union members should be forced to pay 
grievance processing fees to the union if they work in a 
unionized workplace.
    In one example, a Florida union was asking a nonmember to 
pay the equivalent of union dues for the remainder of the term 
of the collective bargaining agreement in order to raise a 
grievance. In this case, it was 4 years' worth of union dues.
    For both of the two nominees for the NLRB here, I have two 
questions. In Tennessee, it's unlawful to force any employee to 
join a union or pay union dues. Do you believe an NLRB decision 
or regulation could legally overturn that protection?
    Mr. Emanuel. Not in any way that I'm aware of.
    The Chairman. Mr. Kaplan.
    Mr. Kaplan. Right-to-work rules built into the NLRA was 
passed by this body and signed by the President, and I'm not--I 
don't think we could--I do not believe that the NLRB could 
overturn it.
    The Chairman. And, finally, in non-right-to-work States, 
employees in unionized workplaces who fail to pay union dues 
are sometimes fired under the terms of the collective 
bargaining contract. In Tennessee, it is unlawful to fire any 
employee for failure to pay union dues. Do you believe the NLRB 
has the power to overturn that protection?
    Mr. Emanuel. My answer would be the same as before. I'm not 
aware of any way that could happen.
    Mr. Kaplan. Yes, I would agree.
    The Chairman. Thank you.
    I ask consent to introduce nine letters of support for Mr. 
Kaplan and William Emanuel and a letter of support for Patrick 
Pizzella into the record.
    [The information referred to may be found in Additional 
Material.]
    I thank the three of you for your willingness to serve our 
country in positions that are important to millions of 
Americans. This will conclude our hearing. We would hope to 
bring your nominations before the committee shortly and approve 
them and send them to the Senate floor for its consideration 
and support and hopeful approval.
    If Senators wish to ask additional questions of the 
nominees, questions for the record are due by 5 p.m. Friday, 
July 14. For all other matters, the hearing record will remain 
open for 10 days. Members may submit additional information for 
the record within that time.
    As a matter just for the record, I referred to a case 
earlier as the Northwestern case. I should have said the 
Columbia case.
    Mr. Emanuel. Oh, yes.
    The Chairman. The Northwestern case was a case about 
organizing football players----
    Mr. Emanuel. Right.
    The Chairman [continuing]. Which also strikes me as 
misguided. I meant the Columbia case.
    Our next meeting will be on Wednesday, July 19, at 10 a.m. 
to vote on nominations.
    Thank you for being here today. The committee will stand 
adjourned.
    [Additional Material follows.]

                          ADDITIONAL MATERIAL

                  [The New York Times,* July 18, 1993]

 Made in the U.S.A,?--Hard Labor on a Pacific Island/A special report; 
                Saipan Sweatshops Are No American Dream

                           (By Philip Shenon)

    Saipan--On this tiny, tropical outpost of the United States, many 
people describe what happens to foreign workers here as something close 
to servitude.
    Every year, thousands of laborers from China, the Philippines and 
elsewhere in Asia are flown here. The workers are often bused straight 
from the airport to squalid barracks where they live--sometimes for 
years--as many as a dozen to a room.
---------------------------------------------------------------------------
    * Visit www.nytreprints.com for samples and additional information.
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    They are put to work almost immediately in nearby factories within 
view of Saipan s pristine beaches, many of them laboring 6 days a week 
at about half the Federal minimum wage, stitching together American 
brand-name clothes. Familiar Labels.
    The labels would be familiar to anyone who has strolled through an 
American shopping mall. Over the last year, Arrow, Liz Claiborne, The 
Gap, Montgomery Ward, Geoffrey Beene, Eddie Bauer and Levi's have all 
made clothes on this palm-fringed island that is part of the American 
commonwealth in the Western Pacific, 5,000 miles from the continental 
United States.
    While many of these garments are manufactured in foreign-owned 
factories by foreign workers, the apparel made in the Northern Marianas 
often bears another familiar label: ``Made in the U.S.A.'' The American 
flag flies over several of the factories.
    An estimated $279 million worth of wholesale clothing, virtually 
all of it made by foreign labor, was shipped from here last year to the 
United States.
                   part of america: at $2.15 an hour
          ``We come here because we make more money here than in China, 
        and because the recruiters in China tell us that Saipan is part 
        of America,''

said a $2.l5-an-hour factory worker from a village near Shanghai.
    The woman, who is in her early 20s, invited a visitor into the 
cramped barracks room that she shares with seven other women, their 
beds separated only by flimsy cloth sheets. The room also serves as a 
kitchen.
    ``They are not good conditions,'' she says, wrinkling her nose and 
pointing to a mildewy hallway strewn with litter. ``If we complain, 
then our bosses would send us back to China and take away all of our 
money. Our families need the money.''
                the sweatshops: no comment from the mall
    The biggest industries here--garment manufacturing, tourism and 
construction--are all dependent on poorly paid foreign labor, which 
explains why--of the 42,000 people who live in the Northern Marianas, 
of which Saipan is the largest--more than half are foreign workers.
    While clothing from the Northern Marianas made up only about 1 
percent of the $29 billion in clothing imported into the United States 
last year, it accounts for as much as 20 percent of the clothing sold 
by some large American companies.
    Several big manufacturers doing business here are silent when asked 
about labor practices or about the volume of clothing they import. 
Spokesmen for Arrow, The Gap and Montgomery Ward either did not return 
phone calls or said they had no comment on labor conditions in the 
islands.
    A Claiborne spokeswoman acknowledged that the company did make ``a 
small percentage of its clothing in the Northern Marianas. A 
spokeswoman for Eddie Bauer said the factories here produced only ``an 
insignificant percentage of the company's goods. Neither company would 
discuss import figures.
                        industry battles abuses
    The industry's trade group, the American Apparel Manufacturers 
Association, said its members were doing their best to end labor abuses 
in the islands.
    ``We oppose sweatshops wherever they are,'' said Larry Martin, the 
association's spokesman. ``We believe and hope that our members are 
abiding by all labor laws.''
    One clothing manufacturer, Levi Strauss & Co., has been notably 
aggressive in trying to end labor abuses in Saipan. While it continues 
to make shirts at five plants on the island, it ended its contracts 
last year with the island's largest clothes maker, Willie Tan, after an 
investigation by Levi's found evidence of ``unsatisfactory treatment of 
workers and violation of the law'' in his factories.
    While insisting that his companies never abused or cheated workers, 
Mr. Tan, a Philippine-born American businessman, did agree last year to 
pay $9 million in back wages and damages to laborers, most of them 
Chinese, under a settlement with the U.S. Labor Department.
                            legal servitude
    The plight of foreign workers in the Commonwealth of Northern 
Mariana Islands has outraged the few Federal investigators who have 
made the long journey across the Pacific--Saipan is far closer to China 
and the Philippines than it is to Hawaii--even as they acknowledge that 
most of what goes on here is within the law. Visitors to the islands 
are also startled by what they see.
    ``It certainly has its parallels to slavery or indentured 
servitude,'' said Neils Jensen, a Christian missionary from New Zealand 
who has lived intermittently on Saipan since 1983.

          ``Many of these workers go into debt for what they think will 
        be the privilege of working on Saipan. Because they're so 
        deeply in debt, they can't afford to retaliate or complain or 
        leave. Their conditions are horrendous.''

    Over the years, Washington has granted a variety of concessions to 
businesses in Saipan to encourage economic growth and to end 
generations of subsistence living for the local islanders. For decades, 
the largest employer had been the U.S. Trust Territory government.
    Under an agreement approved in 1976, the islands were exempted from 
the Federal minimum wage. The Commonwealth government now sets its own 
minimum wage, which has been $2.15 an hour since 1984.
    (Other American territories, including Guam, which is only 120 
miles from Saipan, use the higher Federal guaranteed minimum of $4.25 
an hour.)
            the exploited: a life of misery under old glory
    Yet the Chinese garment workers almost certainly have it better 
than many of the other foreign laborers here.
    Thousands of Filipinos are employed in the Northern Marianas as 
construction workers or maids, jobs that are currently exempted from 
the islands' $2.15 minimum wage. Many young Filipino women are brought 
to Saipan to work in bars where, they say, they are forced by their 
employers to serve as prostitutes for the islands tourists, most of 
them Japanese visitors on package tours.
    The plight of Asian immigrants who are willing to take great risks 
to live and to work in the United States drew international attention 
in May, when a rusty freighter carrying 300 undocumented Chinese 
immigrants ran aground in New York.
    In Saipan, Asian laborers arrive legally, usually in the comfort of 
a commercial jet. There is plenty of evidence to suggest that many of 
the estimated 23,000 foreign laborers in these islands, like their 
undocumented counterparts in the continental United States, face a life 
of exploitation and misery under the American flag.
    Saipan is the largest of the 14 volcanic islands that make up the 
Northern Marianas, scene of some of the bloodiest fighting of World War 
II.
                        mcdonald's and tv reruns
    After the war, the islands became a territory of the United States 
and eventually a commonwealth. The islanders are American citizens, and 
there are reminders everywhere of their ties to the United States, from 
the new McDonald's restaurant to a cable-television system that 
rebroadcasts ``Murphy Brown'' and the ``Today Show.''
    The garment industry was established in the early 1980s as a result 
of Federal rules that allow manufacturers here to export clothing to 
the American mainland duty free and largely without quotas.
    There are now more than 20 factories, most often owned by foreign 
investors who were also lured here by the islands' liberal investment 
and immigration laws.
    Under commonwealth law, foreign investors are welcome, and they 
have brought with them a flood of foreign workers who are willing to 
accept minimum-wage jobs that local islanders routinely reject. Most of 
the islanders work for the local government and receive much more than 
the minimum wage.
    The commonwealth's Governor, Lorenzo I. DeLeon Guerrero, said that 
he had heard the slave-labor comparisons in discussions of foreign 
workers. ``It is an insult to us,'' he said. ``There's no slavery 
here.''
    He also readily acknowledged that some employers take advantage of 
foreign workers. ``It's very true that the conditions of these people 
should be far better,'' the Governor said. ``We have to be honest about 
that.''
         the reformers: 30 cents an hour raise and barbed wire
    The local legislature approved a law this year to raise the minimum 
wage by 30 cents a year for each of the next 7 years and to apply the 
minimum to construction workers. The Governor has proposed the creation 
of a human rights commission to protect the rights of workers.
    The reforms do not go far enough to satisfy many of the 
commonwealth's critics--under the new law, Saipan's minimum wage will 
not match the current Federal minimum of $4.25 until 1999--and there 
are threats in Congress this year to cut off more than $120 million in 
Federal subsidies.

          ``I'm afraid that an awful lot of time and motion is being 
        wasted trying to give the appearance of reform instead of 
        actually making real, structural changes,''

said Representative George Miller, a California Democrat who is 
chairman of the House Natural Resources Committee, which oversees 
American territories.
    American labor unions charge that, because of the low wages paid to 
foreign workers, the Northern Marianas are stealing jobs from textile 
workers in the United States. The unions want the Government to crack 
down on the labor abuses here.
          ``We have rules for protecting products, such as copyright 
        laws, but seemingly we have no rules to protect the workers who 
        produce the product--if they happen to be in Saipan,''

said Arthur Gundersheim, director of international affairs for the 
Amalgamated Clothing & Textile Workers Union.
                        no water or electricity
    While commonwealth officials insist they are trying to improve the 
living conditions of foreign workers, the improvements are not evident 
in large Saipan neighborhoods like Susupe, where several oversize tin-
roof plywood shacks serve as workers' barracks. Often they have no 
regular water or electricity.
    In larger barracks, workers complain of living in virtual 
captivity, their housing ringed with barbed wire and patrolled by teams 
of uniformed guards.
    ``The girls have no freedom,'' said a 29-year-old Filipino who 
worked in a bar for 5 months before ``escaping'' last year and finding 
a different job. She asked that her name not be used for fear that her 
family in the Philippines would learn that she had worked as a 
prostitute.
    While working at the bar, she lived with 20 other women in a three-
bedroom house that they were rarely allowed to leave. ``We were told 
that we could not go outside by ourselves, ever,'' she said. ``The boss 
was afraid that we would have boyfriends and would sleep with them 
without getting money for him.''
                            going to america
    The exploitation of workers often begins long before they arrive 
here. Many pay large recruitment fees to middlemen in their homelands 
who find them jobs in Saipan. No matter how terrible the working 
conditions, they say, they cannot think of going home until the money 
is earned back.
    Masudur Rahman, 30, said his impoverished family in Bangladesh sold 
off much of its farmland outside Dhaka, the capital, to raise the 
$4,000 fee demanded by the recruiters for a construction job ``where 
the American flag is flying.'' Although the recruiter promised a job 
paying $1,500 a month, Mr. Rahman said, he never received more than 
$250 a month.
    He said he was startled to discover once he arrived in Saipan that 
he, like virtually all other foreign laborers, had no right to travel 
to the United States.
    The recruitment agent said we were going to America, Mr. Raliman 
recalled. ``He never said Saipan.''
          the exploiters: the harsh lessons of free enterprise
    Among the garment industry employers, no one here had been more 
successful than Mr. Tan, whose family controls clothing factories that 
employ hundreds of foreign workers and ship millions of dollars worth 
of clothing each year to the mainland United States.
    Mr. Tan's luck appeared to run out last year, when he agreed to pay 
$9 million in back wages and damages to more than 1,000 factory workers 
to settle the Labor Department charges. The department's investigators 
said that workers in Mr. Tan's factories put in as many as 90 hours a 
week without overtime and were routinely paid as little as $1.65 an 
hour.
    Separately, the Occupational Safety and Health Administration 
announced last year that its investigation had found ``appalling living 
and working conditions'' in Saipan garment factories and barracks, 
including those controlled by Mr. Tan.
    Although Federal regulations require that workers receive a minimum 
of 100 square feet of space per person to cook and sleep, six of Mr. 
Tan's workers were found living in one room of 190 square feet. Toilet 
facilities were primitive.
                          charges are dropped
    The Occupational Safety and Health Administration dropped the 
charges after the Tan companies made $1.3 million in repairs to the 
factories and barracks and agreed to pay $76,000 in penalties.
    His lawyer, Robert J. O'Connor, said that Mr. Tan agreed to pay the 
back wages only because the Labor Department was harassing some of the 
factories' clients.

          ``The Labor Department was putting pressure on our buyers by 
        putting out press releases implying that they were linked to 
        slave labor,'' he said. ``We were coerced into the 
        settlement.''

    Mr. O'Connor said that the wages had been withheld not by Mr. Tan's 
companies, but by Chinese Government supervisors under a longstanding 
agreement with the workers.
    ``We know that 97 percent of all the workers who work for Mr. Tan 
have asked to have their contracts extended,'' Mr. O'Connor said.
    ``When they are here,'' he said of the Chinese laborers, ``they 
learn about free enterprise, democracy--they become good-will 
Ambassadors of our precepts of democracy.''
    That is not borne out by the scores of affidavits gathered by the 
Labor Department from the Chinese workers. The company ``makes use of 
all kinds of illegal methods to steal our blood money,'' said Hu Li 
Yue, a factory mender in one of Mr. Tan's factories.
             the forgotten: workers stranded without a job
    Some workers arriving here on contracts receive nothing, not even 
jobs. Near the airport, a crumbling cinder block house without 
electricity or running water is home to 47 laborers from the province 
of Guangdong in southeastern China.
    The workers arrived on Salpan in December 1991 on 2-year contracts 
as construction workers, but the jobs they had been promised 
disappeared. ``Now they're pretty much stranded,'' said their lawyer, 
Brian McMahon.
    The South Korean businessmen who brought them here, Kim Choon Suk, 
says that because of a downturn in the local construction industry, he 
had no work for the Chinese laborers and no money to send them home.
    ``I do not write home anymore because I do not want my wife and my 
two children to know the truth of our terrible conditions,'' said Liu 
Lin Yong, a 30-year-old construction worker.
    He leaned against one of the long sheets of plywood that Mr. Rim 
supplied to the workers to serve as beds. In one room, 22 of the men 
sleep side by side on the platforms. The toilets are flushed with 
rainwater, and the men bathe by swimming in the ocean.
    ``We have no money to pay for tickets to go home,'' Mr. Liu said, 
opening his wallet to show that it was empty. All it contained were a 
few photographs of his family. ``I would go home today if I had a 
ticket. I would run to the airport.''
                       Lobbying Registration Form








                                 ______
                                 
                           Letters of Support
       American Hotel & Lodging Association (AHLA),
                                             July 13, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
American Hotel & Lodging Association (AHLA), I write in strong support 
of President Trump's nominations of Patrick Pizzella to be Deputy Labor 
Secretary; and Marvin Kaplan and William Emanuel to be Members of the 
National Labor Relations Board (NLRB). All three nominees are extremely 
qualified to serve in the roles to which they have been nominated and 
their swift confirmation is necessary to ensure that the Department of 
Labor (DOL) and the NLRB can fulfill their missions.
    Founded in 1910, AHLA is the sole national association representing 
all sectors and stakeholders in the U.S. lodging industry, including 
owners, REITs, chains, franchisees, management companies, independent 
properties, suppliers, and State associations. The lodging industry is 
one of the Nation's largest employers. With nearly 8 million employees 
in cities and towns across the country, the hotel industry provides $75 
billion in wages and salaries to our associates and generates $600 
billion in economic activity from the 5 million guestrooms at the more 
than 52,000 lodging properties nationwide. It's particularly important 
to note that this industry is comprised largely of small businesses, 
with nearly 60 percent of all hotels falling under the Small Business 
Administration's definition of what constitutes a small business in the 
lodging sector.
    Hotels are an integral part of the fabric of each community across 
the United States. From coast to coast, the industry proudly invests in 
the communities in which they call home by creating jobs, supporting 
long-term career opportunities, generating significant tax revenue, 
contributing to the local and State economies, and encouraging 
community development. Hoteliers strive each day to make sure those 
opportunities continue to grow.
    Mr. Pizzella currently serves as Acting Chairman of the Federal 
Labor Relations Authority (FLRA) and has served as a member of the FLRA 
since November 2013 after being nominated by President Barack Obama. He 
has also served as Assistant Secretary of Labor for Administration and 
Management at the U.S. Department of Labor under President George W. 
Bush.
    Appointed to serve under both Democratic and Republican 
administrations, Mr. Pizzella has nearly two decades of experience in 
the Federal Government, nearly half of those focusing on labor policy 
matters, to call upon when driving DOL's mission forward.
    Mr. Kaplan, counsel to the commissioner of the Occupational Safety 
and Health Review Commission, and Mr. Emanuel, a shareholder at the law 
firm Littler Mendelson PC in Los Angeles, are experts in the field of 
labor relations. Together they have decades of experience interpreting 
the NLRA in a manner that is balanced and without favor to political 
party. They have the expertise to ensure the Board remains true to its 
mission of enforcing the National Labor Relations Act (NLRA) and, by 
serving as a neutral arbiter of labor law, will create a climate for 
economic growth by freeing employers from the unnecessary red-tape and 
uncertainty associated with recent Board activities.
    I urge the Committee on Health, Education, Labor, and Pensions to 
approve the nominees promptly following this hearing, so the Senate may 
confirm them and the DOL and NLRB can fulfill their missions.
            Sincerely,
                                            Brian Crawford,
                                                    Vice President,
                                    Government & Political Affairs.

              Coalition for a Democratic Workplace,
                                              July 6, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
Coalition for a Democratic Workplace (CDW), we urge the Senate to 
quickly confirm Marvin Kaplan and William Emanuel to serve on the 
National Labor Relations Board (NLRB). Kaplan and Emanuel both are 
extremely qualified to serve as members of the Board and have the 
expertise to ensure the Board remains true to its mission of enforcing 
the National Labor Relations Act (NLRA) and serving as a neutral 
arbiter of labor law.
    CDW is a broad-based coalition of over 600 organizations 
representing hundreds of thousands of employers and millions of 
employees in various industries across the country concerned with the 
disruption caused by the NLRB's 8-year campaign to re-write labor law. 
CDW was originally formed in 2005 in opposition to the so-called 
Employee Free Choice Act (EFCA), which would have replaced secret 
ballots in unionization elections with ``card check,'' a process that 
would have forced employees to choose whether or not to sign union 
authorization cards in front of coworkers and union organizers, 
exposing employees to potential intimidation and harassment by those in 
favor of unionization. When EFCA was defeated, CDW turned its focus to 
regulatory overreach by the NLRB, which has tried to enact the goals of 
EFCA through its decisions and regulations.
    Mr. Kaplan, counsel to the commissioner of the Occupational Safety 
and Health Review Commission, and Mr. Emanuel, a shareholder at the law 
firm Littler Mendelson PC in Los Angeles, are experts in the field of 
labor relations. Together they have decades of experience interpreting 
the NLRA in a manner that is balanced and without favor to political 
party.
    Over the last 8 years, the NLRB has overturned an astounding 4,559 
years' worth of longstanding precedent, blurred numerous bright-line 
tests, and dramatically overhauled the union election process--all in 
an effort to tilt the scales in favor of organized labor.\1\ The Board 
embarked upon this campaign with little regard as to the negative 
impact these policy decisions would have on workers, employers and the 
economy in general. Despite the employer community's efforts to 
demonstrate these negative effects and caution the Board of these 
consequences, the NLRB continued pursuing its radical agenda at the 
expense of worker and employer rights and our economy.
---------------------------------------------------------------------------
    \1\ http://myprivateballot.com/wp-content/uploads/2016/12/CDW-NLRB-
Precedents-.pdf.
---------------------------------------------------------------------------
    We therefore applaud President Trump for his choices to serve as 
the next members of the NLRB. Kaplan and Emanuel will interpret the 
NLRA in a manner that is fair to workers, unions and employers alike, 
restoring much-needed balance to the agency. They will help to return 
the Board to its traditional role as a neutral arbiter of labor 
disputes and will create a climate for economic growth by freeing 
employers from the unnecessary red-tape and uncertainty associated with 
recent Board activities.
    We urge the Committee on Health, Education, Labor, and Pensions to 
approve the nominees promptly following a hearing, so the Senate may 
confirm them and the NLRB can return to fulfilling its statutory 
mission.
            Sincerely,
                      Coalition for a Democratic Workplace.

          Independent Electrical Contractors (IEC),
                                      Alexandria, VA 22302.
                                                     July 11, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
Independent Electrical Contractors (IEC), I urge the Senate to quickly 
confirm Marvin Kaplan and William Emanuel to serve on the National 
Labor Relations Board (NLRB). Mr. Kaplan and Mr. Emanuel are both 
extremely qualified to serve as members of the Board and have the 
expertise to ensure the Board remains true to its mission of enforcing 
the National Labor Relations Act (NLRA) and serving as a neutral 
arbiter of labor law.
    The Independent Electrical Contractors is an association of over 50 
affiliates and training centers, representing over 2,100 electrical 
contractors nationwide. While IEC membership includes many of the top 
20 largest firms in the country, most of our members are considered 
small businesses. Our purpose is to establish a competitive environment 
for the merit shop--a philosophy that promotes free enterprise, open 
competition and economic opportunity for all. In addition, IEC and its 
training centers conduct apprenticeship training programs under 
standards approved by the U.S. Department of Labor's (DOL) Office of 
Apprenticeship. Collectively, IEC trains more than 10,000 electrical 
apprentices annually.
    Mr. Kaplan, counsel to the commissioner of the Occupational Safety 
and Health Review Commission, and Mr. Emanuel, a shareholder at the law 
firm Littler Mendelson PC in Los Angeles, are experts in the field of 
labor relations. Together they have decades of experience interpreting 
the NLRA in a manner that is balanced and without favor to political 
party.
    Over the last 8 years, the NLRB has overturned an astounding 4,559 
years' worth of longstanding precedent, blurred numerous bright-line 
tests, and dramatically overhauled the union election process--all in 
an effort to tilt the scales in favor of organized labor. The Board 
embarked upon this campaign with little regard as to the negative 
impact these policy decisions would have on workers, employers and the 
economy in general. Despite the employer community's efforts to 
demonstrate these negative effects and caution the Board of these 
consequences, the NLRB continued pursuing its radical agenda at the 
expense of worker and employer rights and our economy.
    IEC applauds President Trump for his choices to serve as the next 
members of the NLRB. Mr. Kaplan and Mr. Emanuel will interpret the NLRA 
in a manner that is fair to workers, unions and employers alike, 
restoring much-needed balance to the agency. They will help to return 
the Board to its traditional role as a neutral arbiter of labor 
disputes and will create a climate for economic growth by freeing 
employers from the unnecessary red-tape and uncertainty associated with 
recent Board activities.
    IEC urges the Committee on Health, Education, Labor, and Pensions 
to approve the nominees promptly following a hearing, so the Senate may 
confirm them and the NLRB can return to fulfilling its statutory 
mission.
            Sincerely,
                                             Jason E. Todd,
                                                    Vice President,
                                Independent Electrical Contractors.

International Foodservice Distributors Association 
                                            (IFDA),
                                          McLean, VA 22102,
                                                     July 10, 2017.

Hon. Lamar Alexander,
U.S. Senate,
455 Dirksen Senate Office Building,
Washington, DC 20510-4206.

    Dear Senator Alexander: On behalf of the Nation's foodservice 
distributors, I am writing to urge you to support the nominations of 
Marvin Kaplan and William Emanuel to serve on the National Labor 
Relations Board. Both of these nominees are well-qualified and the 
Senate should act quickly in order to bring the Board to its full 
membership.
    The National Labor Relations Act is designed to create a level 
playing field, favoring neither employers nor unions. Unfortunately the 
last 8 years have seen a considerable move away from this policy as the 
Board has actively worked to overturn more than 4,500 years of labor 
law precedent to favor organized labor. As a result employers have 
faced a variety of initiatives such as the ambush election rule which 
limited the ability of employees to hear from their employer on the 
issues around unionization and the joint employer rule which threatens 
the franchise business model.
    Mr. Kaplan and Mr. Emanuel have considerable experience with the 
National Labor Relations Act both in public service and private 
practice. Their confirmation will help return the Board to its 
traditional position of fairness to ensure that the rights of workers, 
employers and unions are protected. This is a critical feature of our 
Nation's labor laws and restoring this balance will help to grow our 
economy so that all parties can benefit from increased opportunity.
    I hope you will support these nominations and work to ensure they 
come before the Senate in a timely fashion.
            Sincerely,
                                             Mark S. Allen,
                                                 President and CEO.

         International Franchise Association (IFA),
                                      Washington, DC 20006,
                                                     July 13, 2017.

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

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Senate Dirksen Office Building,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
International Franchise Association (IFA), the world's oldest and 
largest organization representing franchising worldwide, I write to you 
in support of the nomination of Marvin Kaplan, and William Emanuel for 
the two vacant positions on the National Labor Relations Board (NLRB).
    America's small businesses have created 74 percent of the jobs 
since the recession, according to the U.S. Small Business 
Administration. Local franchise business owners have led much of this 
growth, outpacing employment in all businesses for the last 6 years. 
However, small business owners everywhere have faced uncertainty in the 
wake of decisions from the National Labor Relations Board. In recent 
years, economic growth has been stifled by overregulation. Notably, in 
August 2015, the Board dramatically expanded the basis for forcing an 
employer to bargain alongside a subsidiary or contractor company in 
ruling for a Teamsters local in Browning-Ferris Industries of 
California, Inc. The new standard included situations in which 
``indirect'' and/or ``potential'' control can originate from the top 
curtailing job creation by franchise business owners and other small 
businesses. The traditional joint employer test had existed with 
bipartisan support for decades; yet the previous administration decided 
to reverse decades of precedent and settled law to change that 
standard.
    By contrast, Marvin Kaplan and William Emanuel, seem highly capable 
of interpreting the law being well-qualified on labor policy. Each 
brings with them vast experience and qualifications in labor law 
providing proof of their dedication to service.
    On behalf of the Nation's 733,000 franchised small businesses, I 
strongly urge you to push forward with the confirmation of the two 
nominees so the new National Relations Labor Board can address the 
regulatory issues facing the franchise business model.
    Thank you for considering our views.
            Best Regards,
                                      Robert Cresanti, CFE,
                                                 President and CEO.

     International Warehouse Logistics Association 
                                            (IWLA),
                                     Des Plaines, IL 60018,
                                                     July 13, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
International Warehouse Logistics Association (IWLA), I write to urge 
the Senate HELP Committee to move quickly to hold hearings and 
subsequently advance the nominations of Marvin Kaplan and William 
Emanuel to the National Labor Relations Board (NLRB). Kaplan and 
Emanuel are well-equipped with the experience and qualifications 
necessary to enforce the National Labor Relations Act (NLRA) and to 
serve as neutral interpreters and enforcers of our Nation's labor laws.
    Founded in 1891, IWLA is the trade association that represents the 
interests of warehouse-based third-party logistics (3PL) providers 
across North America. Headquartered in Des Plaines, IL, IWLA's 500+ 3PL 
member companies and partners are independent warehouses that store, 
distribute and add value to manufacturers' products as they move 
through the supply chain.
    IWLA member companies provide a range of services including 
warehousing; fulfillment; reverse logistics; transportation; freight-
forwarding and brokerage services; inventory and supply chain 
management; and a broad range of manufacturing and value-added 
services. In total, IWLA's member companies manage up to 70 million 
square feet of warehouse space and move more than three trillion pounds 
of goods each year.
    Over the last 8 years, the NLRB has reversed decades of standing 
precedent regarding the union election process. This has been done with 
little regard for the negative impact these policy decisions would have 
on workers, employers, and the economy. The IWLA feels confident that 
Kaplan and Emanuel will interpret the NLRA in a manner that is fair to 
workers, unions and employers alike, restoring much-needed balance to 
the agency.
    To that end, we again urge the Senate HELP Committee to 
expeditiously take up and approve these distinguished nominees so that 
the Senate can follow suit and return the NLRB to a body that fairly 
and objectively applies the law.
            Sincerely,
                                              Steve DeHaan,
                                                 President and CEO.

                   National Restaurant Association,
                                       Washington, DC 20036
                                                     July 12, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: Thank you for 
holding a timely hearing on the nominations of Marvin Kaplan and 
William Emanuel to serve on the National Labor Relations Board (NLRB). 
They are outstanding nominees with exceptional legal expertise in 
complex labor and employment law matters. Each will help the President 
meet his goal of eliminating job-crushing rules and regulations, 
keeping government agencies accountable and restoring fairness and 
balance to Federal labor law.
    The National Restaurant Association is the leading business 
organization representing the restaurant and food service industry. The 
industry is comprised of more than one million restaurant and 
foodservice outlets employing almost 14.5 million people. Despite being 
an industry of predominately small businesses, the restaurant industry 
is the Nation's second-largest private-sector employer, employing about 
10 percent of the U.S. workforce.
    Over the last 8 years, the previous administration's NLRB engaged 
in unbridled overreach in their decisions. Rather than acting in a 
transparent and impartial manner, the Board aggressively carried out a 
one-sided agenda aimed at growing unionization to the detriment of 
workers and their employers. We are encouraged by the President's 
nomination of these well-qualified nominees and support their 
confirmation.
    We urge the committee to move quickly to approve these nominations 
to allow for Senate confirmation before the August recess period.
            Sincerely,
                                             Shannon Meade,
                            Director of Labor and Workforce Policy.

                  National Retail Federation (NRF),
                                      Washington, DC 20005,
                                                     June 28, 2017.

Hon. Lamar Alexander, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Patty Murray, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
Nation's retail industry, I write to share the National Retail 
Federation's (NRF) strong support for the nominations of Marvin Kaplan 
and William Emanuel to serve on the National Labor Relations Board 
(NLRB). Both nominees are highly qualified and well-respected labor 
attorneys who should be confirmed without delay.
    NRF is the world's largest retail trade association, representing 
discount and department stores, home goods and specialty stores, Main 
Street merchants, grocers, wholesalers, chain restaurants and Internet 
retailers from the United States and more than 45 countries. Retail is 
the Nation's largest private sector employer, supporting one in four 
U.S. jobs--42 million working Americans. Contributing $2.6 trillion to 
annual GDP, retail is a daily barometer for the Nation's economy.
    Over the past 8 years, the retail industry and employers across the 
country have faced a crushing regulatory burden that has created 
immense uncertainty in labor relations and made it much harder to grow. 
Much of this uncertainty has stemmed from the NLRB's pursuit of an 
activist agenda that consistently put the interests of labor unions 
before the rights of employers and employees. The Board's unprecedented 
changes to the long-held joint employer standard, sanctioning of 
disruptive micro-unions, and radical changes to union election 
procedures represent just a fraction of the detrimental NLRB policies 
impacting retailers in recent years.
    Both job creators and employees will benefit from a more balanced 
approach in labor relations and a Board majority that puts the needs of 
American businesses and workers before union politics. The President's 
Board nominees have significant expertise and experience in labor 
policy matters, and NRF is confident that both will serve as neutral 
arbiters of the law. We urge Members of this committee and the Senate 
to support the nominations of Marvin Kaplan and William Emanuel and 
move toward confirmation without delay.
            Sincerely,
                                              David French,
                                             Senior Vice President,
                                              Government Relations.

        Retail Industry Leaders Association (RILA),
                                       Arlington, VA 22209,
                                                     July 13, 2017.

Senator Lamar Alexander, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Office Building,
Washington, DC 20510.

Senator Patty Murray, Ranking Member,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Dirksen Office Building,
Washington, DC 20510.

    Chairman Alexander and Ranking Member Murray: Thank you for holding 
a hearing on the President's nominees for the National Labor Relations 
Board (NLRB). The Retail Industry Leaders Association (RILA) fully 
supports the nominations of Marvin Kaplan and Bill Emanuel as each of 
them has demonstrated throughout their careers to have a deep knowledge 
of the law and an ability to balance the interests of employees and 
employers.
    By way of background, RILA is the trade association of the world's 
largest and most innovative retail companies. RILA members include more 
than 200 retailers, product manufacturers, and service suppliers, which 
together account for more than $1.5 trillion in annual sales, millions 
of American jobs and more than 100,000 stores, manufacturing facilities 
and distribution centers domestically and abroad.
    As RILA members are leaders in the workforce arena, a full and 
complete NLRB has been one of our top priorities as retailers continue 
to grabble with the impacts of controversial Board decisions in 
Specialty Healthcare, Browning-Ferris, as well as several important 
handbook policy cases. Taken together, these decisions have not only 
threatened the flexibility and upward mobility that retail employees 
value but also the effective operation of retail establishments across 
the country.
    It is critical that the Board is made whole so it can begin the 
important work to interpret the law in a way that supports innovation, 
growth, and opportunity rather than tying the hands of the largest 
private job creators in the country. We strongly encourage the Senate 
to move swiftly and look forward to a smooth and seamless confirmation 
process.
            Sincerely,
                                             Evan Armstrong
                                                    Vice President,
                                                Government Affairs.
                                 ______
                                 
 Response by Patrick Pizella to Question of Senator Murkowski, Senator 
  Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator 
                        Warren and Senator Kaine
                           senator murkowski
    Question. During the period in which you worked with Jack Abramoff 
at Preston Gates, the working conditions for immigrant labor in the 
Northern Marianas were horrible in the extreme. At that time, you 
worked on behalf of Preston Gates' client, the Commonwealth of the 
Northern Marianas Islands, to block legislation sponsored by then-
Senator Frank Murkowski that was intended to improve those working 
conditions. During a recent hearing of the Senate Energy and Natural 
Resources Committee, the committee took testimony that some of these 
foreign labor issues exist now. If you are confirmed as Deputy 
Secretary for the Department of Labor, what will you do to ensure that 
Federal laws are being followed and that companies in the Commonwealth 
of the Northern Marianas Islands are following all Federal labor laws 
and regulations? Will you work with other Federal agencies to ensure 
that companies hiring workers in the Commonwealth of the Northern 
Marianas Islands are doing so legally?
    Answer. If I am confirmed as Deputy Secretary of Labor it will be 
my statutory responsibility to ensure that Federal laws are being 
followed and that companies in the Commonwealth of the Northern Mariana 
Islands (CNMI) are following all Federal labor laws. I will also work 
with other Federal agencies as appropriate. Coordination with other 
Federal agencies--particularly the Department of Interior--is very 
important given the distance of CNMI from the U.S. mainland.
                             senator murray
    Question 1. President Trump has proposed a 20 percent budget cut 
for the Department of Labor (DOL), including a 40 percent cut to our 
Nation's system of education, skills training, and employment services 
designed to support current and future workers, particularly low-income 
workers, dislocated workers, and at-risk and out-of-school youth. If 
you are confirmed as Deputy Secretary, you will be responsible for 
overseeing DOL operations, including budgetary issues. Please address 
the following questions related to the development of the President's 
budget:

    With regard to the Education and Training Administration, do you 
commit to maintaining current funding levels for job training, worker 
dislocation and employment service programs?
    Will you commit to preserving the International Labor Affairs 
Bureau?
    Will you commit to keeping OFCCP at the Department of Labor?
    Will you commit to preserving the Women's Bureau at the Department 
of Labor?
    Will you commit to providing no less than level funding for the 
Office of Disability Employment Programs?
    Will you commit to maintain current levels of inspection and 
enforcement by the Wage and Hour Division and the Occupational Safety 
and Health Administration?
    Answer 1. As a nominee, I did not participate in the development of 
the President's budget proposal. The President's budget is pending 
before Congress and ultimately Congress will determine which programs 
are funded, at what level, and which authorizing proposals to adopt. If 
I am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated. I believe there are always efficiencies that can 
improve programs and will commit to make the most of the dollars 
Congress appropriates to the Department. The agencies you mention are 
important to the mission of the Department of Labor and, if confirmed, 
I look forward to working with Congress regarding departmental 
priorities.

    Question 2. If confirmed, what process will you use in implementing 
the President's budget cuts? If furloughs are necessary, what process 
will you employ?
    Answer 2. As a nominee, I did not participate in the development of 
the President's budget proposal. The President's budget is pending 
before Congress and ultimately Congress will determine which programs 
are funded, at what level, and which authorizing proposals to adopt. If 
I am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated. Furloughs should always be a last-resort. I 
believe there are always efficiencies that can improve programs and 
will commit to make the most of the dollars Congress appropriates to 
the Department.

    Question 3. As we discussed, the President has touted the 
importance of job training, and in particular apprenticeships. If you 
are confirmed, how will you seek to implement the President's agenda 
with the proposed $2 billion-plus reduction from the Education and 
Training Administration budget that funds these same programs around 
the country?
    Answer 3. As a nominee, I did not participate in the development of 
the President's budget proposal. The President's budget is pending 
before Congress and ultimately Congress will determine which job 
training programs are funded and at what level. If I am confirmed, I 
will work to maximize every dollar the Department of Labor is 
appropriated. I believe there are always efficiencies that can improve 
programs and will commit to make the most of the dollars Congress 
appropriates to the Department.

    Question 4. The President's Executive order issued on June 15, 2017 
appears to direct the Department of Labor to create a new 
apprenticeship program that would exist outside of the Registered 
Apprenticeship program at the Department of Labor. Registered 
apprenticeships are known for having certain requirements in place for 
workers, including on-the-job training and rewards for skills gained. 
Registered apprenticeships also culminate in a portable credential. The 
President's Executive order permits qualified third-parties to 
recognize apprenticeship programs. If confirmed, how will you work with 
your colleagues to ensure that any apprenticeship programs that are 
recognized by these third-parties and that receive Federal funding meet 
the same quality standards as registered apprenticeship programs?
    Answer 4. As with many Executive orders, the Department of Labor 
will likely need to write regulations or guidance to implement the 
Executive order. Secretary Acosta has been clear that he believes, and 
I agree, that these apprenticeship programs should be high-quality. As 
I understand the Executive order, the premise is to create industry 
standards for training--so that an employer in Louisiana knows a worker 
who was in an apprenticeship in Connecticut was provided the same 
quality training he or she is accustomed to in an employee. If there is 
not continuity and a high-standard, it will be difficult to achieve 
portability. As a nominee, I am not involved with the drafting of any 
regulations or guidance. If I am confirmed, I look forward to assisting 
in the implementation of the Executive order.

    Question 5. Secretary Acosta and the Administration have talked 
extensively about job training. If confirmed as Deputy Secretary, how 
would you actually meet these goals while simultaneously reducing job 
training funding?
    Answer 5. The President's budget is pending before Congress and 
ultimately Congress will determine which job training programs are 
funded and at what level. If I am confirmed, I will work to maximize 
every dollar the Department of Labor is appropriated. I believe there 
are always efficiencies that can improve programs and will commit to 
make the most of the dollars Congress appropriates to the Department.

    Question 6. The Trump administration's budget proposes a drastic 
$255 million cut to the Wagner-Peyser Employment Service program. This 
is a service that matches dislocated workers to jobs that match their 
skills and background. Do you support the Administration's cuts to this 
program?
    Answer 6. Matching workers with the jobs that require their skill 
set and background is incredibly important and is the focus of the 
President's Executive order on apprenticeships. As a nominee, I did not 
participate in the development of the President's budget proposal. The 
President's budget is pending before Congress and ultimately Congress 
will determine which job training programs are funded and at what 
level. If I am confirmed, I will work to maximize every dollar the 
Department of Labor is appropriated. I believe there are always 
efficiencies that can improve programs and will commit to make the most 
of the dollars Congress appropriates to the Department.

    Question 7. You stated in your confirmation hearing that the 
President's budget increased the budgets of DOL's enforcement agencies. 
In reality, the President's budget decreased the budget of the 
Occupational Safety and Health Administration (OSHA)--the agency 
responsible for enforcing workers' rights to safe and healthful 
workplaces--by $8.479 million. In your view, is OSHA an enforcement 
agency? If the answer is yes, then please explain why you stated that 
the President's budget increased enforcement resources.
    Answer 7. The President's budget leaves enforcement agencies 
largely untouched. Enforcement agencies are at the core of the 
Department of Labor's mission. The Occupational Safety and Health 
Administration (OSHA) is one of the Department's enforcement agencies. 
Generally, the President's fiscal year 2018 budget proposal provides 
increases to enforcement agencies. My understanding is that a majority 
of the decrease in OSHA was not for enforcement activities, but to 
eliminate training grants and shift some of those resources to other 
OSHA programs.

    Question 8. Do you believe that existing regulations should only be 
changed where there is empirical evidence suggesting that they are 
flawed, or do you believe that rules should be revised, even if such 
revisions are not supported by concrete evidence?
    Answer 8. As Secretary Acosta has stated, the law sets specific 
limits and establishes procedures to follow when regulating and 
deregulating, including the Administrative Procedure Act. Any changes 
to existing regulations generally must meet the requirements set forth 
in the Administrative Procedure Act including public notice and comment 
on any changes.

    Question 9. The overtime and fiduciary rules were promulgated after 
lengthy rulemaking processes that included extensive stakeholder 
outreach. In your view, what new information must be produced in order 
to support changes to these rules?
    Answer 9. As Secretary Acosta has stated, the law sets specific 
limits and establishes procedures to follow when regulating and 
deregulating, including the Administrative Procedure Act. The overtime 
and fiduciary rules are at the Request for Information stage, where the 
Department of Labor will request the public provide comments on 
questions and then determine what to do, if anything, based on that 
information. As a nominee, I am not privy to the specific information 
that would, or would not, influence a decision to make changes.

    Question 10. During the process of formulating rules and other 
policies, will you commit to advocating for and ensuring that senior 
Department leadership meet with all affected stakeholders, including 
groups that represent workers?
    Answer 10. I support outreach and involvement of the regulated 
community in rulemaking. Under the Administrative Procedure Act, all 
stakeholders may comment and their views must be considered by the 
Department when the Department issues regulations. I believe it is 
important to hear from stakeholders in the rulemaking process to ensure 
the most robust record is made and the best information is considered 
from which to make regulatory decisions.

    Question 11. What is your view on when opinion letters are 
appropriate?
    Answer 11. Opinion letters are an appropriate and useful tool to 
help employees and employers understand and comply with the law. These 
letters were a practice of the Wage and Hour Division (WHD) for more 
than 70 years. WHD exercises its discretion when determining which 
questions or issues should be addressed through an opinion letter. As 
Secretary Acosta said, and I agree, employers should focus on growing 
their businesses and creating jobs and the Department of Labor is 
committed to helping employers understand and comply with the law so 
they can do just that.

    Question 12. How will you weigh advice from Department lawyers when 
they advise that a particular action is legally indefensible, or is 
effectively indefensible given the risk of an adverse decision in 
litigation?
    Answer 12. If confirmed, I will listen to, and fully consider, all 
advice provided by attorneys at the Department of Labor.

    Question 13. The President has signed two Congressional Review Act 
resolutions of disapproval for two DOL retirement rules thought sought 
to help works save for retirement. With 10,000 workers from the ``baby 
boom'' generation retiring every single day and most of them woefully 
unprepared for retirement, do you support the elimination of the Senior 
Community Service Employment Program? Please explain why or why not. If 
you do support its elimination, please explain how the DOL should help 
seniors who need to work during their retirement years.
    Answer 13. A very important part of the Department of Labor's 
mission is to ``foster, promote, and develop the welfare . . . of 
retirees in the United States'' and I support that mission 
wholeheartedly. With regard to the Senior Community Service Employment 
Program, I would need to learn more about the program and examine its 
recent metrics before opining on it. However, as a nominee, I did not 
participate in the development of the President's budget proposal. The 
President's budget is pending before Congress and ultimately Congress 
will determine which programs are funded, at what level, and which 
authorizing proposals to adopt. If I am confirmed, I will work to 
maximize every dollar the Department of Labor is appropriated. I 
believe there are always efficiencies that can improve programs and 
will commit to make the most of the dollars Congress appropriates to 
the Department.

    Question 14. Historically, compared to other agencies, DOL has 
spent one of the smallest percentages of its budget on information 
technology (IT). Given the Administration's proposal to cut the 
Department's budget, how will you ensure that necessary IT 
improvements, including enhancing cybersecurity protections, are 
adequately funded?
    Answer 14. If I am confirmed, the Department will need to take a 
hard look at its funding and prioritize necessary IT improvements, 
especially cybersecurity protections.

    Question 15. The Frances Perkins Building is in need of costly 
upgrades. The Obama administration attempted to secure a new building 
through an exchange process, but the process was canceled by the Trump 
administration. Given the budget cuts proposed for the Department, if 
confirmed, what is your plan for upgrading the building?
    Answer 15. If confirmed, and if Congress determines budget 
reductions are necessary, the Department will need to take a hard look 
at its funding and prioritize necessary building upgrades. If 
confirmed, I expect to be briefed on what upgrades may be necessary to 
the Frances Perkins Building.

    Question 16. DOL has a long history of using data, evidence, and 
performance metrics to guide decisionmaking. How will you use data, 
evidence, and performance metrics to guide policymaking and budget 
decisions?
    Answer 16. I will use data, evidence, performance metrics, and 
other measures to guide my decisionmaking.

    Question 17. There is strong evidence that tougher enforcement--and 
publication of enforcement results--leads to safer working conditions. 
How do you reconcile this evidence with the Administration's stated 
desire to move away from enforcement to greater compliance assistance?
    Answer 17. Compliance assistance helps employers understand how to 
comply with the law, particularly small businesses who may not have 
robust legal departments. I believe compliance assistance and 
enforcement go hand-in-hand.

    Question 18. The Department has currently halted almost all 
communication with the public about enforcement activities. Do you 
believe that it is an efficient and effective use of resources to 
communicate about such enforcement activities to increase voluntary 
compliance?
    Answer 18. I am not aware of the Department halting communication 
with the public about enforcement activities. Generally, I believe 
there is deterrent value to communicating with the public about 
enforcement actions.

    Question 19. Please describe your views on when transparency is a 
useful deterrent to violations and when it is ``shaming.'' Please be 
specific with your views on the posting of press releases and the OSHA 
Severe Violators program.
    Answer 19. Generally, I believe there is deterrent value to 
communicating with the public about enforcement actions. Congress has 
determined that workers should be protected from hazards in the 
workplace and I believe it makes sense to focus resources on employers 
who ignore those responsibilities. If confirmed, I look forward to 
working with Occupational Safety and Health Administration staff and 
learning more about the Severe Violator Enforcement Program.

    Question 20. Please State the steps that you will take to ensure 
that the work of the Department's Chief Evaluation Office is free of 
political interference.
    Answer 20. As I stated at my confirmation hearing, the 
administration of law should have nothing to do with partisan politics. 
I agree with Secretary Acosta's position that respect for the 
individual and respect for the law will guide the Department. The 
policy of the Chief Evaluation Office states, ``independence and 
objectivity are core principles of evaluation.'' If confirmed, I have 
no plans to change that.

    Question 21. In recent years, the Department of Labor has made 
significant improvements in employee engagement. If confirmed, how will 
you ensure that these improvements continue?
    Answer 21. If I am confirmed, after a careful review of the 
Department of Labor performance management system and meeting with 
agency administrative officers and human resources professionals, I 
will be in a position to properly assess employee engagement.

    Question 22. Will you commit to protecting the rights of DOL 
employees to express their disagreement with Administration policies? 
If so, how?
    Answer 22. There are many legal protections for civil servants. 
Political views should not be considered in the hiring of career civil 
servants and the government has a selection process that must be 
followed. If confirmed, I will follow the law and commit to protecting 
the rights of all civil servants at the Department of Labor. 
Inappropriate or unlawful conduct will be subject to appropriate 
disciplinary action, if I am confirmed.

    Question 23. During your staff interview with the committee's 
minority staff, you mentioned how you were an integral part of the 
Department meeting all elements of then-OMB Director Mitch Daniels' 
Management Plan. As Deputy Secretary, what kind of management systems 
will you put in place to ensure that the Department continues to meet 
its statutory mandates? Do you commit to sharing established or new 
operating/management metrics with the committee?
    Answer 23. If I am confirmed, and after a careful review of the 
Department of Labor (DOL) performance management system and budget 
formulation process, I will be in a position to determine what kind of 
management systems, if any, need to be in place to ensure DOL continues 
to meet its statutory mandates. Any new operating or management metrics 
will be part of DOL's annual report to Congress and the public.

    Question 24. Do you think that the Department's resources are 
correctly allocated between training and enforcement, and, if not, why 
not?
    Answer 24. If confirmed, I expect to be briefed about the operation 
and possible needs of all of the Department's agency components--
including the enforcement agencies and Employment and Training 
Administration. These agency components have different missions and 
goals and if confirmed, I look forward to working with the agencies to 
improve efficiency and meet the agency needs.

    Question 25. Do you think that the Department's resources are 
correctly allocated between compliance assistance and enforcement, and, 
if not, why not?
    Answer 25. If confirmed, I look forward to learning more from each 
enforcement agency about its compliance and enforcement efforts. 
Compliance assistance helps employers understand how to comply with the 
law, particularly small businesses who may not have robust legal 
departments. I believe compliance assistance and enforcement go hand-
in-hand.

    Question 26. If you find that the Department's funding is not 
sufficient to meet operating goals and mandates, if confirmed, do you 
commit to sharing that information with the committee?
    Answer 26. The Department's budget justification describes the 
needs and effects of changes being proposed to programs. If I am 
confirmed, I will work to maximize every dollar the Department of Labor 
is appropriated. I believe there are always efficiencies that can 
improve programs and will commit to make the most of the dollars 
Congress appropriates to the Department.

    Question 27. Will you commit, if confirmed, to responding in a 
timely and complete manner to requests from all Members of Congress?
    Answer 27. If confirmed, I will provide responses to all Members of 
Congress.

    Question 28. Curtis Ellis, a current DOL political appointee, has 
written that former President Barack Obama and Secretary Hillary 
Clinton planned the ``liquidation of white, blue-collar working 
families.'' Do you agree with that statement? Do you believe it is 
appropriate that Mr. Ellis hold a high-level government position?
    Answer 28. As I am not confirmed, I am not involved in personnel 
decisions and am not privy to information regarding particular 
individuals.

    Question 29. In most cases before the Federal Labor Relations 
Authority (FLRA), it is typical practice for the union to be listed as 
the filing party instead of the individual employee. However, as a 
Member and as Chairman of the FLRA, in the dissents and concurrences 
you authored, you routinely named the grievant in cases when the 
individual is not the filing party. Why did you employ this practice 
when it is not the FLRA's normal practice?
    Answer 29. As the only non-lawyer Member of the Federal Labor 
Relations Authority (FLRA), I sometimes approach issues a little 
differently than my current colleagues and previous Members. I believe 
that transparency is important.

    Question 30. Generally an arbitrator's findings of facts are 
entitled to deference unless there is an error in the arbitrator's 
legal analysis. It seems, however, that during your tenure as a Member 
and Chairman of the FLRA, you did not always give arbitrators that 
deference. Can you explain this deviation from typical practice as a 
Member of the FLRA?
    Answer 30. As the only non-lawyer Member of the Federal Labor 
Relations Authority (FLRA), I sometimes approach issues a little 
differently than my current colleagues and previous Members. The FLRA 
has a statutory charge to review such decisions and I performed my 
responsibility as a Member of the FLRA.

    Question 31. In your exchange with Senator Isakson during your 
confirmation hearing, you mentioned the Institute for Justice's 
``crusade'' against licensing. Do you agree with the Institute's stance 
on licensing?
    Answer 31. In my response to Senator Isakson, I was referring to 
the Institute for Justice's ``Braiding Initiative'' where the Institute 
for Justice filed suits challenging State hair braiding regulations. I 
am concerned that State occupational licensing laws may create 
artificial barriers to employment and I believe tackling these 
artificial barriers requires a broad-based approach at the Federal, 
State, and local government levels.

    Question 32. Democrats and Republicans have tended to agree that 
licensing is a State issue. I worked with Chairman Lamar Alexander to 
provide funding to DOL to support State and regional efforts in this 
area. Do you believe that the Department of Labor, and therefore the 
Federal Government, should take over control of licensing issues in 
this country? If so, what role do you think the Department of Labor and 
the Federal Government should play in deciding for States how licensing 
requirements should be designed and implemented? What criteria would 
you suggest using to evaluate licenses?
    Answer 32. I share your concerns that the patchwork of State 
occupational licenses may create artificial barriers to employment. As 
I stated at my confirmation hearing, I believe the Federal Government 
has a role to bring together States to enter into reciprocal 
relationships to allow for the portability of occupational licenses 
across State lines, but that States also play a large role in working 
together. If confirmed, I look forward to learning more about the 
Department's efforts regarding occupational licensing, including the 
grant program established by Congress.

    Question 33. In response to one of Senator Rand Paul's questions 
during your nomination hearing, you stated that there should not be 
partisanship at the agency. Despite your record of Federal service, you 
have also worked for incredibly partisan organizations, such as the 
Council for National Policy, which has been called ``a little-known 
club of a few hundred of the most powerful conservatives in the 
country,'' and the Conservative Action Project, which describes itself 
as

          ``a united conservative movement to assure, by 2020, policy 
        leadership and governance that restores religious and economic 
        freedom, a strong national defense, and Judeo-Christian values 
        under the Constitution.''

    Given your history with these partisan organizations, how will you 
leave partisanship behind while you are at DOL?
    Answer 33. I have never engaged in partisanship in my nearly 25 
years in Federal service in the executive branch and, if confirmed, 
will not engage in partisanship as Deputy Secretary of Labor.

    Question 34. In your interview with committee minority staff, you 
stated that you stopped working for the Council for National Policy on 
December 31, 2012, because you knew that you were going to be nominated 
for the Federal Labor Relations Authority. The Council for National 
Policy filed a 2013 Form 990 showing that you were paid $116,667 for 
the calendar year beginning January 1, 2013 and ending December 31, 
2013. Can you please explain this discrepancy?
    Answer 34. The Council for National Policy owed me that amount of 
money for services performed in 2012. My contract with them and all 
work for them ended on December 31, 2012.

    Question 35. You were an original signer of the 2010 Mount Vernon 
statement, which has been described as an effort to bring together 
disparate conservative groups. How will the principles of the Mount 
Vernon statement inform your service as the Deputy Secretary of Labor 
if you are confirmed?
    Answer 35. If confirmed as Deputy Secretary, I will follow the law 
and the oath I take as a Federal employee.

    Question 36. President Trump has made comments about corruption in 
the Federal workforce, at times referring to many Federal workers as 
disloyal and ``leakers.'' Do you agree with his assessment of Federal 
employees?
    Answer 36. I believe Federal employees serve an important role and 
are vital to the operation of the government.

    Question 37. You have expressed some troubling views in your 
opinions at the Federal Labor Relations Authority (FLRA). For example, 
in the case, 69 FLRA No. 75, you refer to the grievant by name and 
repeatedly refer to the individual in a demeaning manner. In the past, 
you have called employees ``boorish and unprofessional,'' and called 
their grievances ``frivolous.'' The mission of the Department of Labor 
is to promote and protect the rights and well-being of workers. Given 
your past statements, what assurances can you provide the committee 
that you will support and protect the Department's employees?
    Answer 37. My record of over almost 25 years of experience in the 
executive branch is one of following the laws and regulations governing 
the Federal workforce. If I am confirmed as Deputy Secretary I will 
continue that approach.

    Question 38. In some of your opinions at the FLRA--69 FLRA 75; 70 
FLRA 63; 68 FLRA 846--you deride the use of official time, i.e., work 
Federal employees perform on agency-related work such as ensuring 
workplace safety, developing training materials for new employees, and 
resolving grievances. Do you support Federal employees' statutory 
protection of official time under the Federal Service Labor-Management 
Relations Statute? If yes, will you commit to protecting and in no way 
restricting or combating Department of Labor employees' statutory and 
contractual rights to utilize official time?
    Answer 38. If confirmed, I will abide by all statutory protections 
under the Federal Service Labor-Management Relations Statute and any 
collective bargaining agreement in place between Department of Labor 
employees and its union.

    Question 39. The labor conditions in the Northern Marianas are 
notoriously bad and have been since you were a registered lobbyist at 
Preston Gates lobbying on behalf of the Commonwealth of the Northern 
Mariana Islands (CNMI) to oppose extending Federal labor laws there. 
Recent reports have found outrageous violations at one of the largest 
employers on the island, Imperial Pacific Casino, which has faced at 
least five serious workplace safety issues, including an amputation and 
even a death. Do you still defend your position that Federal labor laws 
should not be extended to the CNMI? How can you be trusted to help 
oversee the Wage and Hour and OSHA divisions at the DOL, which are so 
important to workers across the country and in U.S. territories, given 
your prior work?
    Answer 39. The Commonwealth of the Northern Mariana Islands (CNMI) 
is covered by Federal labor laws and if confirmed as Deputy Secretary 
of Labor, I will fully and fairly enforce those laws.

    Question 40. In your confirmation hearing, you responded to a 
question asked by Senator Al Franken about the working conditions in 
the Northern Marianas by stating that you were unaware of the terrible 
working conditions there. It is estimated that you organized trips for 
more than 100 individuals, including Members of Congress. How many 
times did you visit the Northern Marianas? How many trips did you run 
there in your lobbyist position at Preston Gates?
    Answer 40. The Commonwealth of the Northern Mariana Islands (CNMI) 
was a client of Preston Gates, the firm at which I was employed. Over a 
5-year period from 1996 to 2000, I visited the CNMI--at the invitation 
of the CNMI--about 20 times. Those trips involved Members of Congress, 
congressional staff, and public policy advocates, all of whom were 
invited to visit CNMI by the CNMI government.

    Question 41. Disgraced lobbyist Jack Abramoff called you ``a very 
ethical person'' and has endorsed you to be the Deputy Secretary. 
Despite the fact that Abramoff and 21 of his associates either pled 
guilty or were found guilty of various corruption charges, you were 
never charged with any crimes related to your work with Abramoff. The 
Senate Finance Committee investigated Mr. Abramoff 's practice of money 
laundering through tax-exempt organizations and issued a report that 
states,

          ``Patrick Pizzella, a colleague of Mr. Abramoff 's at Preston 
        Gates, wrote to Mr. Abramoff on July 1, 1996, to explain how 
        they planned to funnel money to NCPPR to pay expenses related 
        to a trip to the CNMI.''

    Specifically, you wrote to Mr. Abramoff:

          Jack, the airplane tickets were paid by PG [Preston Gates]; 
        the hotel bills were paid by CNMI (each traveler just signed 
        bill--no credit requested); that leaves basically the fees for 
        Bandow's services and report; and the reimbursement for the 
        bills he accumulated (mostly hotel and food) in Guam and Samoa. 
        That should come to about $10,000. That is the amount CNMI 
        should provide as a grant to NCPPR. Then they can cut check to 
        Bandow. I do not see need for us to send airplane bills to 
        NCPPR and then CNMI sending money ($30,000) to cover those--do 
        you? Let me check further with Doug to nail down amount of 
        bills he accumulated. I would like to finish up the $$ aspect 
        of this as soon as possible--it will impress Doug and Amy--both 
        of who we will want to call on again in the future. Thanks.

    Please explain the context for this e-mail and the arrangement 
between Preston Gates, CNMI, and Mr. Bandow. Were ``Bandow's services 
and report'' related to the articles for which Mr. Abramoff paid and 
resulted in the scandal forcing Mr. Bandow to resign from the Cato 
Institute?
    Answer 41. I last worked with Jack Abramoff 17 years ago. To the 
best of my recollection the ``Bandow's services and report'' had to do 
with Mr. Bandow's visit to Guam and American Samoa (a place I have 
never visited) and an economic report/analysis he prepared about those 
two islands. I am not certain if they are related to the articles you 
reference because that event happened 18 or 19 years ago.

    Question 42. Mr. Abramoff compared the Federal regulation of the 
Northern Marianas to the Nazis' Nuremberg laws, stating that ``The[y] 
are immoral laws to destroy the economic lives of a people.'' Do you 
agree with Mr. Abramoff 's statement?
    Answer 42. No, I do not agree with Mr. Abramoff 's statement.

    Question 43. During your time with the Trump transition team, did 
you participate in vetting President Trump's first nominee for 
Secretary of Labor, Andrew Puzder? If so, please explain your role in 
the vetting process. Did you raise any concerns about Mr. Puzder's 
potential nomination during vetting?
    Answer 43. I did not participate in the vetting of Mr. Puzder.
                             senator casey
    Question 1. Workers in Pennsylvania as well as my office have been 
waiting on responses from the Department of Labor on a Trade Adjustment 
Assistance appeal for Fuzion Technologies in Freeport, PA. Our workers 
can't get an answer out of DOL, and neither can my staff. When can we 
expect a response from you all to get a determination for our workers 
in Pennsylvania? Why has it taken so long and why has DOL not been 
responsive to requests from my staff? What will be done to improve the 
responsive of DOL to Congress? Is the Office of congressional and 
Intergovernmental Affairs fully staffed?
    Answer 1. As I am not confirmed, I am not privy to your request of 
the Department or the specifics of the staffing of the Office of 
Congressional and Intergovernmental Affairs. I believe it is important 
to respond to requests of Members of Congress and, if confirmed, I will 
look into your concerns regarding the Office of Congressional and 
Intergovernmental Affairs.

    Question 2. President Trump has made deregulation a priority. He 
also proposed massive cuts to the Department of Labor's budget. Will 
you pledge to continue tough enforcement of these laws and regulations 
to protect coal miners and commit to not gutting or undoing these 
regulations?
    Answer 2. I'm unsure as to the particular laws and regulations to 
which you refer. I do believe mine safety is of the utmost importance 
and, if confirmed, will work to enforce the laws under the Department's 
jurisdiction fully and fairly.

    Question 3. How do you propose to have robust enforcement given 
these proposed budget cuts? Please provide a yes or no response.
    Answer 3. I am unable to provide a yes or no response to this 
question; however, if confirmed, using taxpayer resources and 
appropriated funds wisely will be one of my responsibilities and one I 
will take very seriously. Enforcement is a core responsibility of the 
Department of Labor and I will prioritize enforcement regardless of 
funding levels. As a nominee, I did not participate in the development 
of the President's budget proposal. The President's budget is pending 
before Congress and ultimately Congress will determine which programs 
are funded, at what level, and which authorizing proposals to adopt. If 
I am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated.

    Question 4. What specifically will you do at the Department of 
Labor to help workers who have lost their jobs to technology or trade?
    Answer 4. Helping Americans who have lost their jobs due to 
technology or trade is very important. If confirmed, I look forward to 
being briefed on all of the available programs and learning more about 
what is working well and areas that may need improvement. I also 
believe it is important to work with the private sector, States and 
localities to further understand the successes and challenges of these 
programs and to ensure that the displaced workers are being trained or 
retrained in industries where there are available jobs and demand for 
workers.

    Question 5. How specifically will you ensure thorough investigation 
and enforcement of violations of the Fair Labor Standards Act?
    Answer 5. Investigation and enforcement of violations of the Fair 
Labor Standards Act should involve strategic enforcement and individual 
complaints. As Secretary Acosta has said as well, if confirmed, I will 
work to enforce the laws under the Department's jurisdiction fully and 
fairly.

    Question 6. How can the Department of Labor help economically 
disadvantaged areas attract new business investment and new jobs?
    Answer 6. As I stated at my confirmation hearing, I subscribe to 
President Kennedy's theory that a rising tide lifts all boats. Actions 
by the executive branch and Congress to create more economic growth and 
an environment for entrepreneurs and businesses to thrive will help 
everybody. Regulatory reform and tax reform are both key to helping 
increase economic growth. The President's Executive order regarding 
apprenticeships will help make sure that those who are unemployed, or 
underemployed, have another pathway and opportunity to gain new skills 
for which there are job opportunities, and these portable skills will 
be useful wherever they live.

    Question 7. Do you think that cutting Federal funding for job 
training will make workers better or worse prepared to find jobs to 
support their families?
    Answer 7. The President's Executive order regarding apprenticeships 
will help make sure that those who are unemployed, or underemployed, 
have another pathway and opportunity to gain new skills for which there 
are job opportunities. Obtaining these portable skills will help 
workers find jobs and be able to support their families.

    Question 8. Do you think that cutting Federal funding for job 
training will make it harder for employers to find workers with the 
skills they need?
    Answer 8. The President's Executive order regarding apprenticeships 
will help those who are unemployed, or underemployed, gain portable 
skills for which there are job opportunities. It will lead to greater 
numbers of workers who possess the requisite skills for the jobs that 
are in demand, helping employers find workers with the skills they 
need.

    Question 9. How do you propose to close the skills gap and help 
workers compete at home and abroad?
    Answer 9. Reducing the skills gap is a priority for this 
Administration and a goal we can all agree upon. The President's 
Executive order regarding apprenticeships will ensure workers are 
trained for the jobs that are in demand. These portable skills will 
follow the worker wherever he or she moves, and will lead to greater 
numbers of workers who possess the requisite skills for the jobs that 
are in demand, helping employers find workers with the skills they 
need.
                            senator franken
    Question 1. Currently on the Department of Labor Web site, under 
the Wage and Hour section, it describes how the department has entered 
in partnerships with 37 States and is:

          ``working with the IRS and many States to combat employee 
        misclassification and to ensure that workers get the wages, 
        benefits, and protections to which they are entitled.''

    What is your view on better coordination across enforcement 
agencies to improve their ability to identify companies who violate 
multiple Federal laws administered by the DOL?
    Answer 1. If confirmed, I look forward to being briefed on the 
extent to which agencies already coordinate and the specific procedures 
the agencies follow. I certainly support using government resources in 
the most efficient manner possible but it would be premature for me to 
suggest changes before examining all of the relevant information.

    Question 2. Should you be confirmed how do you plan to help the 
Department of Labor deal with Federal contractors who have a history of 
violations under the multiple laws administered by the Department?
    Answer 2. Government agencies, including the Department of Labor, 
have certain suspension and debarment authorities granted to them in 
statute and through the Federal Acquisition Regulations. However, it's 
not one-size-fits-all--for example, a repeat or willful violator is not 
the same as a contractor who perhaps has an allegation that has not yet 
been adjudicated.

    Question 3. Given your responsibility as Deputy Secretary, how do 
you intend to make sure that business owners that follow the law aren't 
at a competitive disadvantage to contractors with a history of 
violating our Federal workplace statutes now that the Obama 
administration's Executive order requiring the disclosure and 
consideration of illegal activity when awarding Federal contract has 
been reversed.
    Answer 3 Government agencies, including the Department of Labor, 
have certain suspension and debarment authorities granted to them in 
statute and through the Federal Acquisition Regulations. However, it's 
not one-size-fits-all--for example, a repeat or willful violator is not 
the same as a contractor who perhaps has a minor infraction or an 
allegation that has not yet been adjudicated.

    Question 4. Should the government, especially when spending 
taxpayer dollars, set an example by rewarding and working with 
businesses that obey the law and respect the rights of their workers? 
Please explain.
    Answer 4. The Federal Government should strive to be a model 
employer and comply with the law when hiring a contractor.

    Question 5. Do you believe that a contracting officer should 
consider a company's record of labor law violations (and remedial 
actions) when determining whether the bidder is a responsible party and 
whether a bid is the best value bid?
    Answer 5. There are a number of requirements that contracting 
officers have to meet in awarding contracts, including evaluations of 
the contractor's compliance with the law historically. However, it's 
not one-size-fits-all--for example, a repeat or willful violator is not 
the same as a contractor who perhaps has an allegation that has not yet 
been adjudicated.

    Question 6. Would consideration of a company's history of labor law 
compliance (and any remedial actions) contribute to economy and 
efficiency in contracting?
    Answer 6. There are a number of requirements that contracting 
officers have to meet in awarding contracts, including evaluations of 
the contractor's compliance with the law historically. The contracting 
officer looks at those issues and others as part of a determination of 
the economy and efficiency of the contract.

    Question 7. When asked about whether you had knowledge of abuses of 
workers in the Northern Mariana Islands when you were a lobbyist on 
behalf of the islands' government, you said ``I was not aware of any 
such thing,'' and later described the abuses as ``allegations,'' 
despite clear evidence of abuses offered at the time in press reports, 
government reports, and congressional hearings. Were you unaware of the 
reports or did you simply find them not to be credible?
    Answer 7. I replied to the question asking if I had knowledge of 
abuses of workers--and I had no knowledge of abuses of workers. I was 
aware of news reports and comments by some Members of Congress.

    Question 8. At the time, were you aware that the Senate Committee 
on Energy and Natural Resources held a hearing in March 1998 on abuses 
of workers in the Northern Mariana Islands?
    Answer 8. I do recall that a hearing was held, but 18 years later I 
do not recall the details.

    Question 9. According to Jack Abramoff 's 2011 book, Capitol 
Punishment: The Hard Truth About Washington Corruption From America's 
Most Notorious Lobbyist, for a period in 1998, the government of the 
Commonwealth of the Northern Mariana Islands (CNMI) ended its contract 
with Preston Gates. In order to support your representation, Willie 
Tan, one of the largest sweatshop owners in the islands, organized 
private sector funding for your contract. Were you aware that only a 
few years before, Willie Tan had been assessed the then-largest fine in 
Department of Labor history for abuses of workers?
    Answer 9. These events occurred nearly 20 years ago so I do not 
know precisely when I became aware that Mr. Tan had been assessed a 
fine by the Department of Labor (DOL). I became aware sometime while I 
was employed by Preston Gates.

    Question 10. Did it concern you to be lobbying on behalf of an 
individual with such an egregious record of worker abuses?
    Answer 10. It was a concern and caused me to insist that any 
visitors I accompanied to the Commonwealth of the Northern Mariana 
Islands (CNMI) be allowed to visit the manufacturing, hotels, and 
worker housing facilities and receive a briefing from CNMI officials on 
the status of any outstanding or pending issues or violations. Also, if 
Department of Labor or Department of Interior officials visited CNMI at 
the time we would arrange a meeting for the visitors with Department of 
Labor and/or Interior officials.
                           senator whitehouse
    Question 1. During your time at DOL, according to a GAO report, the 
Wage and Hour Division (WHD) systematically failed workers. The 2009 
GAO report found that WHD's response to complaints was frequently 
inadequate, leaving low wage workers vulnerable to wage theft. Their 
investigation found, ``sluggish response times, a poor complaint intake 
process, and failed conciliation attempts, among other problems.'' What 
role did you play overseeing WHD when you were at DOL? Do you agree 
with GAO's findings? If not, explain the basis for your disagreement.
    Answer 1. While I was at the Department of Labor (DOL) as Assistant 
Secretary for Administration and Management (2001-9), the Wage and Hour 
Division staff reported to a presidentially appointed and Senate-
confirmed Administrator and an Assistant Secretary for Employment 
Services Administration. The 2009 Government Accountability Office 
report you reference was published after I was no longer employed at 
DOL. However, it was recently brought to my attention in my meeting 
with Senator Warren (D-MA). I have since reviewed the report and its 
findings on the performance of certain wage and hour investigators 
seemed well-documented.

    Question 2. Additionally, WHD employees often provided inaccurate 
responses and, in one investigative case, an investigator, ``lied about 
investigative work performed and did not investigate GAO's fictitious 
complaint.'' Do you believe that WHD employees should have to answer 
complaints truthfully and should investigate claims in a timely manner? 
As Deputy, what steps would you take to ensure that all DOL employees 
follow high ethical and performance standards?
    Answer 2. I believe all Federal employees should respond to 
complaints truthfully, should investigate claims in a timely manner, 
and follow high ethical and performance standards. If confirmed, I will 
work with agency ethics officers and the agencies to ensure they are 
following high ethical and performance standards.

    Question 3. During your testimony before the HELP Committee, you 
describe the position of Deputy Secretary as that of a COO, tasked with 
running the department ``efficiently and effectively''. What specific 
steps have you taken in your prior government roles that demonstrate 
your ability to do so?
    Answer 3. The most specific steps I can cite involved my role as 
Assistant Secretary of Labor for Administration and Management (2001-
9). In that role, I helped the Department of Labor (DOL) to be the 
first cabinet department to achieve all ``green'' ratings on President 
George W. Bush's governmentwide management agenda in June 2005. I was 
also involved with: (1) helping DOL's annual Performance and 
Accountability Report receive a first-place ranking 4 years in a row 
(fiscal year 2002-5) from George Mason University's Mercatus Center; 
(2) helping DOL receive four President's Quality Awards between 2004 
and 2006; (3) helping DOL receive eight straight clean audits (2001-8); 
and (4) coordinating the consolidation of DOL office space.

    Question 4. Will you personally cooperate fully with any inquiries 
from the GAO, the DOL IG?
    Answer 4. Yes.

    Question 5. The Office of Legal Counsel has issued an opinion 
stating:

          ``Members who are not committee or subcommittee chairmen 
        sometimes seek information about executive branch programs or 
        activities, whether for legislation, constituent service, or 
        other legitimate purposes (such as Senators' role in providing 
        advice and consent for presidential appointments) in the 
        absence of delegated oversight authority. In those non-
        oversight contexts, the executive branch has historically 
        exercised its discretion in determining whether and how to 
        respond, following a general policy of providing only documents 
        and information that are already public or would be available 
        to the public through the Freedom of Information Act, 5 U.S.C. 
        Sec. 552.''

    Do you believe that Members of Congress in the minority are 
entitled to no more information than is required to be disclosed under 
FOIA? What is your position on responding to minority oversight 
requests?
    Answer 5. If confirmed, I will provide responses to all Members of 
Congress.

    Question 6. During your hearing before the HELP committee, you 
repeatedly cited your intention to advance President Trump and 
Secretary Acosta's agenda at the DOL. The Trump Budget Proposed to cut 
the DOL budget by 19.8 percent. How will reducing the budget help DOL 
achieve its mission of helping wage earners, job seekers, retirees, 
and, ``improve working conditions, advance opportunities for profitable 
employment and assure work-related benefits and rights''? As the Deputy 
Secretary at DOL, would you advocate against a proposed 20 percent 
budget cut? If such a cut were to come to DOL, what would your 
priorities be in responding to cuts of that size?
    Answer 6. If confirmed, I will take the mission of the Department 
of Labor very seriously when executing my duties. As a nominee, I did 
not participate in the development of the President's budget proposal. 
The President's budget is pending before Congress and ultimately 
Congress will determine which programs are funded, at what level, and 
which authorizing proposals to adopt. If I am confirmed, I will work to 
maximize every dollar the Department of Labor is appropriated. I 
believe there are always efficiencies that can improve programs and 
will commit to make the most of the dollars Congress appropriates to 
the Department.

    Question 7. In your opinion from your prior experience at DOL, what 
are the three most important DOL offices or programs under the Deputy 
Secretary? The three least?
    Answer 7. All Department of Labor offices make an important 
contribution to the overall mission of the Department.

    Question 8. In your opinion what were the three most significant 
enforcement actions taken by Obama's DOL? What were the three most 
significant enforcement actions taken during your tenure at DOL?
    Answer 8. I do not have a thorough knowledge of all of the Obama 
administration Department of Labor (DOL) enforcement actions to comment 
fairly. I did not oversee an enforcement agency during my previous 
tenure at DOL so I do not think it would be fair for me to offer such 
an opinion.

    Question 9. You previously advocated to Member of Congress, 
congressional staff, and others on issues related to the Commonwealth 
of the Northern Mariana Islands, where documented labor abuses included 
workers who were essentially indentured servants, coerced abortions, 
guarded labor barracks, and systematic underpayment. These are 
longstanding issues and were reported on in a 1993 New York Times 
article, titled ``Made in the U.S.A.?--Hard Labor on a Pacific Island/A 
special report; Saipan Sweatshops Are No American Dream.'' How many 
trips did you personally make to CNMI? How many trips for others did 
you organize and for whom? What was the itinerary? Did any of these 
trips include visits to factories, labor barracks, or any workplaces 
with alleged labor violations? Did any of these itineraries address 
labor conditions?
    Answer 9. The Commonwealth of the Northern Mariana Islands (CNMI) 
was a client of Preston Gates, the firm at which I was employed. Over a 
5-year period from 1996 to 2000, I visited the CNMI--at the invitation 
of the CNMI--about 20 times. Those trips involved Members of Congress, 
congressional staff, and public policy advocates, all of whom were 
invited to visit CNMI by the CNMI government. To the best of my 
recollection every trip involved visits to factories, labor housing 
facilities, and some workplaces where labor violations had occurred. 
Visitors would also be briefed from local CNMI officials involved with 
workplace safety and U.S. Department of Labor representatives.

    Question 10. Did you engage in advocacy to oppose Senator Frank 
Murkowski's Northern Mariana Islands Covenant Implementation Act, which 
passed the Senate unanimously in 2000? Who were your clients? How many 
meetings did you have with then-Republican House Whip Tom DeLay on CNMI 
issues?
    Answer 10. While employed by Preston Gates and representing the 
Commonwealth of the Northern Mariana Islands (CNMI) I probably engaged 
in advocacy to oppose the Northern Mariana Islands Covenant 
Implementation Act, but most of my activity was focused on the House of 
Representatives. I was in very few meetings with House Whip Tom DeLay 
on CNMI issues--most contact with him was handled by Mr. Abramoff.

    Question 11. During your interview with Senate staff, you indicated 
that you resigned from your consulting position with the Council of 
National Policy on December 31, 2012. However, CNP's tax form 990 for 
2013 lists you as a contractor receiving $116,667 in compensation. How 
do you reconcile that discrepancy? What work did you do for the Council 
of National Policy in 2013?
    Answer 11. That was a payment for prior work and part of the terms 
of the employment agreement. I performed no work in 2013.

    Question 12. The Council of National Policy worked to encourage and 
support the 2013 government shut down. In your position with CNP, did 
you do anything in conjunction with the government shutdown? If so, 
what, and when?
    Answer 12. My contract with the Council of National Policy ended on 
December 31, 2012. The government shutdown occurred in October 2013. I 
did nothing in conjunction with the government shutdown. Ultimately, 
Congress determines whether and when to fund the government.

    Question 13. NOAA, NASA, the U.S. National Academies of Sciences, 
and 31 leading, nonpartisan scientific societies all agree that climate 
change is real and humans are major contributors to it. Do you believe 
climate change is real? Do you personally believe that human activity 
contributes to climate change? If a matter involving climate change 
were to come before you at the Department of Labor, on what sources of 
scientific information would you rely?
    Answer 13. Like Secretary Acosta and President Trump, I am 
committed to helping stimulate the economy and help businesses increase 
the number of jobs. As with any issue that comes before me, I will use 
data, evidence, performance metrics, and other measures to guide my 
decisionmaking.

    Question 14. Will you sign the Trump Ethics pledge? Do you expect 
to request any waivers to the Trump Ethics pledge? If so, what would 
they be for?
    Answer 14. If confirmed, I will sign the ethics pledge and will not 
request any waivers.

    Question 15. Have you ever solicited money for a 501(c)(4) groups, 
such as the Council for National Policy Action Inc.? If so, from whom? 
In what amounts? When were these donations solicited?
    Answer 15. No.

    Question 16. For anyone listed in 15, will you recuse yourself from 
any issues involving these individuals or organizations in your role as 
Deputy Secretary?
    Answer 16. Not applicable.
                             senator warren
                                 budget
    Question 1. The President has proposed significant budget cuts to 
the Department of Labor. Have you assessed the potential impact of 
these changes?
    If so, what have you concluded?
    Answer 1. As a nominee, I did not participate in the development of 
the President's budget proposal. The President's budget is pending 
before Congress and ultimately Congress will determine which programs 
are funded, at what level, and which authorizing proposals to adopt. If 
I am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated. I believe there are always efficiencies that can 
improve programs and will commit to make the most of the dollars 
Congress appropriates to the Department.

    Question 2. To the extent that you believe that budget cuts do not 
undermine the Department's mission, what changes would you recommend so 
that the Department is more efficient and can continue to meet its 
mission despite budget cuts?
    Answer 2. As Congress will ultimately determine agency funding 
levels, it would be premature for me to recommend any specific changes 
based on funding levels. If I am confirmed I will work to maximize 
every dollar the Department of Labor is appropriated. I believe there 
are always efficiencies that can improve programs and will commit to 
make the most of the dollars Congress appropriates to the Department.

    Question 3. If you believe that the President proposes cuts that 
undermine the Department's ability to fulfill its mission, will you 
commit to advocating for a larger Department budget to the White House?
    Answer 3. Yes.

    Question 4. In the same circumstances, or if you believe that 
Congress proposes cuts that undermine the Department's ability to 
fulfill its mission, will you commit to advocating for a larger 
Department budget to Congress?
    Answer 4. Yes.

    Question 5. Will you commit to informing the HELP Committee if the 
budget is insufficient to fulfill the Department of Labor's mission?
    Answer 5. Yes.

    Question 6. The President's budget proposes cuts to some of the 
Department's enforcement agencies, including the Occupational Safety 
and Health Administration and the Office of Federal Contract Compliance 
Programs.\1\ Do you believe these cuts will result in a reduction in 
the number or scope of enforcement actions taken by the Department?
---------------------------------------------------------------------------
    \1\ https://www.dol.gov/sites/default/files/FY2018BIB_0.pdf.
---------------------------------------------------------------------------
    Answer 6. As Congress will ultimately determine agency funding 
levels and make any authorizing legislative changes, and as I have not 
spoken with the agencies, it would be premature for me to opine on the 
extent to which reductions would affect agency action. My understanding 
of the proposed reduction to the Occupational Safety and Health 
Administration (OSHA) is that a majority of the decrease was not for 
enforcement activities, but to eliminate training grants and shift some 
resources to other OSHA programs. If I am confirmed, I will work to 
maximize every dollar the Department of Labor is appropriated. I 
believe there are always efficiencies that can improve programs and 
will commit to make the most of the dollars Congress appropriates to 
the Department.

    Question 7. The Government Accountability office released two 
reports in 2008 and 2009, respectively, detailing alarmingly inadequate 
intake and enforcement at the Department of Labor's Wage and Hour 
Division, based on complaints, case studies, case data analysis, and 
interviews with Division staff. According to the reports, these 
failures were due at least in part to flaws in the investigative 
process, data reliability issues, and resource limitations.\2\ The 
Department's comments on those findings acknowledged ``significant 
shortcomings in WHD's program.''\3\ With the exception of the final 2 
months of one of the GAO's investigations, you were serving as 
Assistant Secretary for Administration and Management and Chief 
Information Office at the Department during the period that the 
reports' findings cover.
---------------------------------------------------------------------------
    \2\ http://www.gao.gov/products/GAO-08-973T; http://www.gao.gov/
products/GAO-09-458t.
    \3\ http://www.gao.gov/assets/300/291496.pdf.
---------------------------------------------------------------------------
    To what extent were you involved in the budget, management of 
intake and investigative functions, and data management at the Wage and 
Hour Division between 2001 and 2009?
    Please describe, to your knowledge, the causes of the problems that 
GAO discovered at the Wage and Hour Division during your time at the 
Department?
    How do you believe that the management and budget of the Wage and 
Hour Division should have been handled differently in order to avoid 
the problems that GAO discovered?
    If confirmed, what specific measures will you take to ensure that 
similar failures do not take place at the Wage and Hour Division or 
anywhere else at the Department of Labor?
    Answer 7. While I was at the Department of Labor (DOL) as Assistant 
Secretary for Administration and Management (2001-9), the Wage and Hour 
Division staff reported to a presidentially appointed and Senate-
confirmed Administrator and an Assistant Secretary for Employment 
Services Administration. The 2009 Government Accountability Office 
report you reference was published after I was no longer employed at 
DOL. However, you recently brought it to my attention in our meeting in 
your office. I have since reviewed the report and its findings on the 
performance of certain wage and hour investigators seemed well-
documented.

    Question 8. During your hearing, you expressed support for the 
Department's job training programs. Yet the President has proposed 
major cuts to those programs. Do you believe these cuts will harm or 
reduce the impact of these programs?
    If so, in what ways? If not, why not?
    How will you and other DOL officials improve these programs so they 
can accomplish their full mission with fewer resources?
    Answer 8. The President's budget is pending before Congress and 
ultimately Congress will determine which job training programs are 
funded and at what level. If I am confirmed, I will work to maximize 
every dollar the Department of Labor is appropriated. I believe there 
are always efficiencies that can improve programs and will commit to 
make the most of the dollars Congress appropriates to the Department.

    Question 9. President Trump's budget proposes completely 
eliminating the Senior Community Service Employment Program, which 
helps low-income seniors seeking employment.\4\
---------------------------------------------------------------------------
    \4\ https://www.dol.gov/sites/default/files/FY2018BIB_0.pdf.
---------------------------------------------------------------------------
    Do you believe that eliminating or significantly reducing funding 
to the Senior Community Service Employment Program would be a wise 
decision?
    If so, why?
    If not, will you commit to aggressively advocating for funding for 
the Senior Community Service Employment Program?
    Answer 9. If confirmed, with regard to the Senior Community Service 
Employment Program, I would need to learn more information about the 
program and examine its recent metrics before opining on it. However, 
as a nominee, I did not participate in the development of the 
President's budget proposal. The President's budget is pending before 
Congress and ultimately Congress will determine which programs are 
funded, at what level, and which authorizing proposals to adopt. If I 
am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated. I believe there are always efficiencies that can 
improve programs and will commit to make the most of the dollars 
Congress appropriates to the Department.

    Question 10. President Trump's budget proposes significant cuts to 
Job Corps, a DOL program that helps disadvantaged youth enter the 
workforce.\5\
---------------------------------------------------------------------------
    \5\ Id.
---------------------------------------------------------------------------
    Do you believe that making large cuts to Job Corps would be a wise 
decision?
    If so, why?
    If not, will you commit to aggressively advocating for Job Corps 
funding?
    Answer 10. Job Corps is a longstanding program at the Department of 
Labor (DOL). It is also a program that has raised significant safety 
and security concerns. As a nominee, I did not participate in the 
development of the fiscal year 2018 budget proposal and it is 
ultimately Congress that determines which programs are funded and at 
what levels. If I am confirmed, I will work to maximize every dollar 
DOL is appropriated and take a close look at each Job Corps center and 
its metrics. Improvements in Job Corps are necessary and the safety and 
security of the students in these centers must remain a top priority.

    Question 11. President Trump's budget proposes significant cuts to 
the Office of Disability Employment Policy, which helps people with 
disabilities succeed in the workplace.\6\
---------------------------------------------------------------------------
    \6\ Id.
---------------------------------------------------------------------------
    Do you believe that making large cuts to the Office of Disability 
Employment Policy would be a wise decision?
    If so, why?
    If not, will you commit to aggressively advocating for funding for 
the Office of Disability Employment Policy?
    Answer 11. The Office of Disability Employment Policy (ODEP) serves 
an important mission at the Department of Labor, helping to increase 
workplace success for individuals with disabilities. Increasing the 
labor force participation rate of individuals with disabilities is a 
goal everyone can support. As a nominee, I did not participate in the 
development of the President's budget proposal. The President's budget 
is pending before Congress and ultimately Congress will determine which 
programs are funded and at what level. If I am confirmed, I will work 
to maximize every dollar ODEP is appropriated.

    Question 12. President Trump's budget proposes eliminating the 
Susan Harwood Training Grant Program, which helps provide training for 
workers and employers on addressing dangers to workers' safety and 
health in the workplace.\7\
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    \7\ https://www.osa.gov/dte/sharwood/.
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    Do you believe that eliminating the program would be a wise 
decision?
    If so, why?
    If not, will you commit to aggressively advocating for funding for 
the Program?
    Answer 12. If confirmed, I would need to review the Susan Harwood 
Training Grant Program and its recent metrics before opining on it. 
However, as a nominee, I did not participate in the development of the 
President's budget proposal. The President's budget is pending before 
Congress and ultimately Congress will determine which programs are 
funded, at what level, and which authorizing proposals to adopt. If I 
am confirmed, I will work to maximize every dollar the Department of 
Labor is appropriated. I believe there are always efficiencies that can 
improve programs and will commit to make the most of the dollars 
Congress appropriates to the Department.

    Question 13. What process will you use to prioritize resources 
between compliance assistance and enforcement functions of the 
Department?
    Answer 13 If confirmed, I look forward to learning more from each 
enforcement agency about its compliance and enforcement efforts, 
including reviewing metrics and outcomes. Compliance assistance helps 
employers understand how to comply with the law, particularly small 
businesses who may not have robust legal departments. I believe 
compliance assistance and enforcement go hand-in-hand.

    Question 14. As part of this process, what metrics will you use to 
assess the success or failure of compliance assistance and enforcement 
efforts, respectively, within the Department's enforcement agencies?
    Answer 14. If confirmed, I look forward to learning more from each 
enforcement agency about its compliance and enforcement efforts. 
Compliance assistance helps employers understand how to comply with the 
law, particularly small businesses who may not have robust legal 
departments. I believe compliance assistance and enforcement go hand-
in-hand. Each agency has its own performance metrics and, if confirmed, 
those will guide any evaluation of an agency.

    Question 15. Do you believe that the Department's resources are 
currently allocated between compliance assistance and enforcement 
functions in an appropriate manner? If not, what specific changes to 
those allocations will you support if you are confirmed?
    Answer 15. If confirmed, I look forward to learning more from each 
enforcement agency about its compliance and enforcement efforts, 
including reviewing metrics and outcomes. Compliance assistance helps 
employers understand how to comply with the law, particularly small 
businesses who may not have robust legal departments. I believe 
compliance assistance and enforcement go hand-in-hand.

    Question 16. If confirmed, will you ensure that compliance 
assistance does not become a substitute for aggressive enforcement at 
the Department's enforcement agencies?
    If so, what metrics will you use to ensure that compliance 
assistance does not become a substitute for aggressive enforcement?
    Will you commit to providing the HELP committee with updates of 
these metrics on a quarterly basis?
    Answer 16. If confirmed, I look forward to learning more from each 
enforcement agency about its compliance and enforcement efforts, 
including reviewing metrics and outcomes. Compliance assistance helps 
employers understand how to comply with the law, particularly small 
businesses who may not have robust legal departments. I believe 
compliance assistance and enforcement go hand-in-hand.
                               workforce
    Question 17. If confirmed, your duties will include overseeing the 
Department of Labor's workforce. When Secretary Acosta served as 
Assistant Attorney General for the Civil Rights Division of the 
Department of Justice (DOJ), the DOJ's Inspector General discovered 
that Secretary Acosta failed to adequately supervise a Deputy who 
engaged in politicized hiring and other seriously improper personnel 
actions.\8\
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    \8\ https://oig.justice.gov/special/s0901/final.pdf.
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    If confirmed, what safeguards will you use to ensure that similarly 
improper actions do not take place at the Department of Labor during 
your tenure?
    If confirmed, what steps will you take to ensure that you and other 
members of the Department's leadership would be in a position to 
discover improper actions such as politicized hiring if they were to 
take place?
    Will you commit to reporting such activity to the HELP Committee if 
you were to discover that it had taken place?
    Will you commit to actively preventing politicization of the 
Department of Labor in general? If so, what specific steps will you 
take to do so?
    Answer 17. There are many legal protections for civil servants. 
Political views should not be considered in the hiring of career civil 
servants and the government has a selection process that must be 
followed. If confirmed, I will follow the law and commit to protecting 
the rights of all civil servants at the Department of Labor. 
Inappropriate or unlawful conduct will be subject to appropriate 
disciplinary action and, if confirmed, I will work to make sure the 
Department keeps the committee informed generally on this issue and 
others that are important to the committee.

    Question 18. What steps would you take to protect the professional 
staff of the Bureau of Labor Statistics (BLS) from political 
interference if the President, White House staff, or any other members 
of the executive branch were to attack the credibility or objectivity 
of the BLS?
    Answer 18. The Bureau of Labor Statistics is an independent 
statistical agency within the Department of Labor. For more than 130 
years, BLS has provided statistical economic information. If confirmed, 
I will commit to defending the independence of BLS.

    Question 19. Will you commit to closing the revolving door and 
preventing Labor Department employees from personally profiting from 
their activities at the Department?
    Will you prevent Labor Department employees from working on issues 
that directly impact a previous employer?
    What specific steps will you take to ensure that Department 
employees are complying the ethics pledge required by President Trump's 
``Ethics Commitments by executive branch appointees'' Executive order?
    Will you commit to informing the HELP Committee if you discover 
that a Department of Labor employee has violated that ethics pledge or 
related regulations or statutes?
    Will you demand that, prior to appointment, political appointees 
pledge that they will not work in industries related to or 
significantly subject to Labor Department regulation for 3 or more 
years upon leaving Federal service?
    Answer 19. Employees of the Department of Labor must fully comply 
with all ethics laws and regulations, including the restrictions 
contained in 18 U.S.C. 208 and 5 C.F.R. 2635.502. Non-career employees 
are also subject to additional restrictions contained in Executive 
Order 13770 (``Ethics Commitments by Executive Branch Appointees''), 
which includes a requirement that they sign an ethics pledge. By 
signing this pledge, the non-career employee commits to,

          `` . . . not, within 5 years after the termination of my 
        employment as an appointee in any executive agency in which I 
        am appointed to serve, engage in any lobbying activities with 
        respect to that agency.''

    All employees, including non-career appointees, are also subject to 
the applicable post-employment conflict-of-interest provisions in 18 
U.S.C. 207.

    Question 20. During President Trump's campaign, there were reports 
that even volunteers were required to sign non-disclosure agreements. 
Following his election, there were also reports that transition 
officials were requesting information about career employees who worked 
on issues such as climate change at the Energy Department or women's 
issues at the State Department.\9\ Any implication that career staff 
who worked on advancing policies that the new President disagrees with 
may be targeted or retaliated against could create a chilling effect on 
non-political Federal employees simply trying to do their jobs.
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    \9\ https://www.washingtonpost.com/news/josh-rogin/wp/2016/12/22/
trump-team-asked-state
-department-for-info-on-womens-issues-programs-stoking-fears-of-
another-witch-hunt/?utm_term
=.50b42eb8cf86.
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    If you are confirmed, will you commit to protect the rights of all 
civil servants in the Department of Labor?
    Those rights include the right for civil servants to communicate 
with Congress, and in fact it is against the law to deny or interfere 
with their right to do so.\10\ If you are confirmed, do you commit to 
protect this fundamental right as well?
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    \10\ 5 U.S.C. Sec. 7211.
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    Answer 20. There are many legal protections for civil servants. 
Political views should not be considered in the hiring of career civil 
servants and the government has a selection process that must be 
followed. If confirmed, I will follow the law and commit to protecting 
the rights of all civil servants at the Department of Labor. 
Inappropriate or unlawful conduct will be subject to appropriate 
disciplinary action.
                              procurement
    Question 21. In some of your prior positions within the Federal 
Government, you have overseen procurement for various agencies. Do you 
believe that the Federal Government should ever award contracts to 
companies that have been found to have committed serious or repeated 
violations of Federal labor law?
    If so, in what circumstances would this be an appropriate use of 
Federal dollars?
    If not, will you commit to advocating for aggressive oversight of 
the labor records of Federal contractors and prospective Federal 
contractors?
    Answer 21. Government agencies, including the Department of Labor, 
have certain suspension and debarment authorities granted to them in 
statute and through the Federal Acquisition Regulations. I believe 
fully adjudicated labor law violations can and should be considered, 
especially with regard to repeat or willful violators. However, it's 
not one-size-fits-all--for example, a repeat or willful violator is not 
the same as a contractor who perhaps has an allegation that has not yet 
been adjudicated.

    Question 22. Do you believe that there any circumstances in which 
it is not necessary for a Federal contracting officer to review the 
labor record of a contractor seeking a contract from the Federal 
Government?
    Answer 22. There are a number of requirements that contracting 
officers must follow in the process of awarding a contract and I will 
make sure those requirements are followed if I am confirmed. For 
example, I understand that before awarding certain contracts, a 
contracting officer is required to see if the potential contractor was 
recently audited by the Office of Federal Contract Compliance Programs.

    Question 23. Do you believe that sufficient procedures exist for 
coordination between agencies that award contracts and the Department 
of Labor's enforcement agencies, in order to ensure contracting 
officers are able to thoroughly review the accurate labor record of a 
company seeking a Federal contract? a. If not, what policies to 
implement sufficient procedures would you support?
    Answer 23. If confirmed, I look forward to being briefed on the 
extent to which agencies currently coordinate and the specific 
procedures the agencies follow. It would be premature for me to suggest 
policies or changes before examining all of the relevant information.
                             senator kaine
    Question 1. The projected insolvency of the Pension Benefit 
Guaranty Corporation's (PBGC) multi-employer pension program remains 
unaddressed.
    In your view, what is the role of the Department of Labor in this 
debate?
     Will you work proactively to address the PBGC's insolvency issues 
before a large multi-employer pension plan fails?
    Answer 1. The Secretary of Labor is Chair of the Pension Benefit 
Guaranty Corporation's (PBGC) Board of Directors. The PBGC's multi-
employer pension program is woefully underfunded and is facing the 
insolvency of several large multi-employer pension plans in the near 
future. This is a serious issue that requires thoughtful consideration. 
I believe most, if not all, potential solutions would require 
congressional action. If confirmed, and as Congress continues to have 
these discussions, I look forward to working with the President, 
Congress, and other stakeholders to find a solution to protect workers' 
pensions.

    Question 2. In May, Department of Labor guidance for States that 
established payroll-deduction IRA plans for workers without access to a 
retirement savings plan through their employers was repealed by 
Congress and signed by the President.
    Do you support the original guidance?
    What steps should the Department of Labor take to increase access 
to retirement savings options for employees who do not have access to 
such plans through an employer?
    Answer 2. I understand the rules you reference were nullified by a 
Congressional Review Act resolution of disapproval and, if confirmed, I 
look forward to being briefed by Employee Benefits Security 
Administration (EBSA) staff regarding options to encourage more 
Americans to save for retirement, including those who do not have 
access to a retirement plan through their employer.

    Question 3. The Rehabilitation Act is a critical law that 
authorizes the formula grant programs for vocational rehabilitation, 
supported employment, independent living, and client assistance 
throughout the Nation. Sections 501 of the law directs the Federal 
Government to recruit and hire people with disabilities. Section 503 
requires Federal contractors to recruit and hire people with 
disabilities. Section 508 describes accessibility requirements for 
federally funded programs. While the Rehabilitation Act has helped 
advance and expand the opportunities of people with disabilities in the 
workforce, people with disabilities still face many barriers when 
compared to people without disabilities. Because the Rehabilitation Act 
and State vocational rehabilitation agencies have been incorporated 
into the broader workforce development system under the Workforce 
Innovation and Opportunity Act, will your Department work closely with 
the Department of Education to ensure that people with disabilities 
seeking employment and training services are able to avail themselves 
of all necessary services under State workforce systems? How will your 
Department engage in this work?
    Answer 3. If confirmed, I look forward to being briefed on the 
coordination that has occurred between the Department of Labor's 
Employment and Training Administration and Office of Disability 
Employment Policy and the Department of Education. I believe it is 
important to ensure that individuals with disabilities have access to 
services in the State workforce systems and, to the extent the programs 
may be duplicative, that they are streamlined so that funding is 
maximized to help as many individuals with disabilities access services 
as possible.

    Question 4. As the agency responsible for enforcing many of the 
laws that ensure safe and fair employment practices, the Department of 
Labor has a heightened responsibility to ensure its own labor and 
employment practices are unimpeachable. Will you commit to ensuring 
that hiring, transfers, and workplace practices are not politicized at 
the Department of Labor, and that employees at the Department of Labor 
comply with all labor and employment laws, including the Civil Service 
Reform Act?
    Answer 4. There are many legal protections for civil servants. 
Political views should not be considered in the hiring of career civil 
servants and the government has a selection process that must be 
followed. If confirmed, I will follow the law and commit to protecting 
the rights of all civil servants at the Department of Labor. 
Inappropriate or unlawful conduct will be subject to appropriate 
disciplinary action.
  Response by Marvin Kaplan to Questions of Senator Roberts, Senator 
  Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator 
                       Warren, and Senator Kaine
                            senator roberts
    Question 1. Mr. Kaplan, as you know, in a 1979 case called NLRB v. 
Catholic Bishop of Chicago, the U.S. Supreme Court held that the NLRB 
had no jurisdiction over instructors at church-operated schools. In a 
2014 case called Pacific Lutheran University, the NLRB chose in a 
divided 3-2 opinion to disregard that judicial precedent and instead 
adopted a test where the NLRB will assert jurisdiction unless a 
religious-affiliated institution in part proves to the NLRB's 
satisfaction that it holds out its faculty as performing a ``specific 
religious function.''
    If confirmed, should a situation arise where a case is brought 
before the NLRB, will you give this issue the careful attention it 
deserves and be sure to give proper weight to precedent in similar 
cases?
    Answer 1. If confirmed, all my decisions will be based on the facts 
before us, legislative text, legislative history, Board and court 
precedent, an analysis of the party's briefs, staff recommendations, 
and discussions with my fellow Board members.

    Question 2. Mr. Kaplan, in the 2004 decision in Lutheran Heritage 
Village-Livonia, the Board has determined work rules and handbook 
provisions are unlawful if employees ``would reasonably construe'' them 
to prohibit protected activities under Section 7 of the NLRA. Under 
this standard, the Board has found dozens of facially neutral 
employment policies to be unlawful, raising real questions about how 
employers can draft, let alone implement, responsible employment 
policies.
    If confirmed, should a situation arise where a case is brought 
before the NLRB, will you give this issue the careful attention it 
deserves?
    Answer 2. If confirmed, I will give each case that comes before the 
Board the careful attention it deserves.
                             senator murray
    Question 1. What, in your view, is the mission of the agency to 
which you have been nominated?
    Answer 1. The National Labor Relations Board is responsible, as the 
National Labor Relations Act and its amendments provide, for ensuring 
employees have the

          ``right to self-organization, to form, join, or assist labor 
        organizations, to bargain collectively through representatives 
        of their own choosing, and to engage in other concerted 
        activities for the purpose of collective bargaining or other 
        mutual aid or protection, and refrain from any or all such 
        activities except to the extent that such right may be affected 
        by an agreement requiring membership in a labor organization as 
        a condition of employment as authorized in [the Act].''

    Question 2. Do you believe that the purpose of the National Labor 
Relations Act (NLRA), enforced by the National Labor Relations Board 
(NLRB or Board), is to encourage and protect workers' rights to 
organize and engage in collective bargaining with their employers? If 
not, please describe in detail your views on the purpose of the NLRA 
and the Board.
    Answer 2. Taken together, the NLRA and the Taft-Hartley amendments 
encourage and protect workers' rights to organize and collective 
bargain if they so choose. As a corollary, employees have the right to 
refrain from any of these activities, as well, if they so choose.

    Question 3. Please describe your views on the role and importance 
of labor unions in today's workplaces and economy.
    Answer 3. Labor unions are one important avenue through which 
employees can strive to achieve better working conditions, including 
higher wages and better benefits. Labor organizations can also provide 
a means through which employees can express their opinions in the 
workplace if they so choose.

    Question 4. What, in your view, is a scenario in which it would be 
appropriate for the NLRB to take action against a company who is 
unfairly retaliating against workers based on antiunion hostility?
    Answer 4. It would be appropriate for the NLRB to find a violation 
and provide relief when an employer discharges an employee for 
supporting a labor organization in violation of section 8(a)(3) of the 
National Labor Relations Act.

    Question 5. Do you agree that the workplace and the employer-
employee relationship has changed dramatically in recent years, and can 
you describe what you see as the key changes affecting workers' ability 
to join together and engage in collective bargaining? What are some of 
those challenges and how would you address them?
    Answer 5. The overwhelming change that has occurred is globalized 
competition, but any changes that would fundamentally alter the 
application of the National Labor Relations Act should come from 
Congress, through the legislative process, not the Board.

    Question 6. Do you believe the designation of workers as 
independent contractors rather than employees is a practice that is 
increasing?
    Answer 6. There is evidence the designation of workers as 
independent contractors is increasing. According to a report published 
by the National Bureau of Economic Research, more than 16 percent of 
U.S. workers participate in flexible contract work as their primary 
job, a 56 percent increase over the past 10 years.

    Question 7. Please provide your view on when the NLRB should 
overturn settled precedents, and what the standard should be in doing 
so.
    Answer 7. The NLRB should endeavor to maintain stability in labor 
law. Among other things, deference to precedent should be based on the 
length of time it has been precedent and the number of times it has 
been upheld by subsequent Boards.

    Question 8. What specific considerations will you rely upon when 
deciding whether to authorize petitions to have a recidivist violator 
of the NLRA held in contempt of court for violating a court order?
    Answer 8. The Board has long had a unit responsible for considering 
whether recidivist violators of the NLRA who disobey court-enforced 
NLRB orders should be held in contempt of court. To the best of my 
knowledge that office operates well. If confirmed, I would be inclined 
to respect its recommendations.

    Question 9. Do you believe there were instances where the Board 
exceeded its authority during the Obama administration? In what cases?
    Answer 9. I have not prejudged any of the issues addressed by the 
Board during the previous administration. If confirmed, my decisions 
will be based on the facts before us, legislative text, legislative 
history, Board and court precedent, an analysis of the party's briefs, 
staff recommendations, and discussions with my fellow Board members.

    Question 10. The Board has been the target of criticism for its use 
of adjudication rather than rulemaking to establish policy. Under 
President Obama, the Board conducted two major notice-and-comment 
rulemakings for the first time in decades. If confirmed, do you intend 
to continue this practice of making new rules or altering existing 
rules through notice-and-comment procedures?
    Answer 10. The Board has the authority to establish policy through 
rulemaking. Whether rulemaking is an appropriate mechanism to establish 
specific policies must be evaluated on a case-by-case basis. Among 
other things, in the event that the Board does take part in rulemaking, 
I would strongly advocate for providing the public ample opportunity to 
review, analyze, and comment on the particular rule.

    Question 11. The Administrative Conference of the United States has 
recommended that agencies ``should develop processes for systematic 
review of existing regulations'' and that they ``should provide 
adequate opportunity for public involvement in both the priority-
setting and review processes.'' If confirmed, will you conduct robust, 
transparent retrospective reviews prior to any revision or reversal of 
existing NLRB law?
    Answer 11. Your premise deals with regulations. See my answer to 
question 10 above. Regarding revision or reversal of existing NLRB law, 
please see my answer on precedent above.

    Question 12. Do you believe that existing doctrines and regulations 
should only be changed where there is empirical evidence suggesting 
that they are flawed, or is it appropriate for the Board to revise 
rules even if such revisions are not supported by concrete evidence?
    Answer 12. As stated above, if confirmed, my decisions will be 
based on the facts before us, potentially including empirical evidence, 
legislative text, legislative history, Board and court precedent, an 
analysis of the party's briefs, staff recommendations, and discussions 
with my fellow Board members.

    Question 13. Please describe in detail your experience working on 
issues involving the National Labor Relations Act.
    Answer 13. At the direction of the Chairmen of both the House 
Committee on Oversight and Government Reform and the Committee on 
Education and the Workforce , I conducted oversight of the National 
Labor Relations Board. True oversight requires a thorough understanding 
of the authorizing statute, in this case the National Labor Relations 
Act, and Board and court cases interpreting the Act. This work also 
involved considering the interest of employees, unions, and employers 
covered by the Act. Additionally, at the Committee on Education and the 
Workforce, as Workforce Policy Counsel, I counseled the Chairman on 
labor policy, which required a thorough review of the National Labor 
Relations Act, the legislative history, and Board and court cases 
interpreting the Act.

    Question 14a. Please describe your experience representing 
employers, workers, or unions in proceedings before the National Labor 
Relations Board. Specifically:
    Have you ever filed a charge with the Board?
    Answer 14a. No.

    Question 14b. Have you ever handled an unfair labor practice case 
or representation case before the Board?
    Answer 14b. No.

    Question 14c. Have you ever represented a party in the court of 
appeals related to a petition for review of a Board order?
    Answer 14c. No.

    Question 15. Have you ever represented a worker in an employment 
matter?
    Answer 15. No.

    Question 16. During your confirmation hearing before the committee, 
I asked whether you have ever been involved in efforts to protect 
workers' right to organize. In response, you cited the oversight you 
conducted as a staff member in the House of Representatives, which you 
testified ``made sure the agency operated within its statutory 
authority.'' Can you provide a specific example of oversight you 
conducted that was not critical of the NLRB's decisions or actions, and 
additionally how that oversight advanced workers' rights to organize?
    Answer 16. In 2011, Inspector General David Berry issued a report 
entitled ``Case Processing Costs'' which indicated the NLRB regional 
offices could achieve greater efficiencies by consolidating offices and 
eliminating positions in overstaffed regions by attrition. In 2012, as 
Workforce Policy Counsel for the House Education and the Workforce 
Committee, I worked extensively with NLRB Inspector General and the 
National Labor Relations Board to institute reforms related to the IG's 
2011 findings. Ultimately, the NLRB consolidated offices from 32 to 26. 
Greater efficiency is essential to the expeditious handling of both 
unfair labor practice charges and elections which, in turn, is 
essential to protecting the rights of workers to organize. See also my 
answer to #13 above.

    Question 17. With regard to your positions with the U.S. House of 
Representatives' Committee on Oversight and Government Reform and the 
Committee on Education and Workforce, please provide a list of all 
hearings, oversight requests, and legislation (including appropriations 
riders) pertaining to the NLRB in which you participated during your 
tenure on Capitol Hill.
    Answer 17. I do not have records of all hearings, oversight 
requests, and legislation pertaining to the NLRB in which I 
participated during my time on Capitol Hill.
    While serving as counsel for the House Committee on Oversight and 
Government Reform, the committee did not hold hearings or advance 
legislation pertaining to the NLRB. Unfortunately, the House Committee 
on Oversight and Government Reform Activity Reports do not appear to 
include specific oversight activities of the minority. In an attempt to 
provide the information requested, I reached out to House Committee on 
Oversight and Government Reform, but they could not provide the 
information. As such, I cannot provide a list of oversight requests 
pertaining to the NLRB in which I participated during my time at the 
House Committee on Oversight and Government Reform.
    The following list includes the hearings, oversight requests, and 
legislation, based on the House Committee on Education and the 
Workforce Activity Reports available on the committees' Web sites, 
pertaining to the NLRB in which I participated during my time at the 
House Committee on Education and the Workforce.

    Committee on Education and the Workforce Hearings

February 11, 2011--``Emerging Trends at the National Labor Relations 
    Board''
March 31, 2011--``The Future of Union Transparency and Accountability''
May 26, 2011--``Corporate Campaigns and the NLRB: The Impact of Union 
    Pressure on Job Creation''
July 7, 2011--``Rushing Union Elections: Protecting the Interests of 
    Big Labor at the Expense of Workers' Free Choice''
September 22, 2011--``Culture of Union Favoritism: Recent Actions of 
    the National Labor Relations Board''
October 12, 2011--H.R. 3094, ``Workforce Democracy and Fairness Act''
February 7, 2012--``The NLRB Recess Appointments: Implications for 
    America's Workers and Employers''
July 25, 2012--``Examining Proposals to Strengthen the National Labor 
    Relations Act''
September 12, 2012--``Expanding the Power of Big Labor: The NLRB's 
    Growing Intrusion into Higher Education' ''
February 13, 2013--``The Future of the NLRB: What Noel Canning vs. NLRB 
    Means for Workers, Employers and Unions''
June 26, 2013--H.R. 2346, ``Secret Ballot Protection Act,'' and H.R. 
    2347, ``Representation Fairness Restoration Act''
September 19, 2013--``The Future of Union Organizing''
March 5, 2014--``Culture of Union Favoritism: The Return of the NLRB's 
    Ambush Election Rule''.
May 8, 2014--``Big Labor on College Campuses: Examining the 
    Consequences of Unionizing Student Athletes''
June 24, 2014--``What Should Workers and Employers Expect Next From the 
    National Labor Relations Board?''
September 9, 2014--``Expanding Joint Employer Status: What Does it Mean 
    for Workers and Job Creators?''
June 3, 2015--``Compulsory Unionization through Grievance Fees: The 
    NLRB's Assault on Right-to-Work''
June 16, 2015--H.R. 511, ``Tribal Labor Sovereignty Act of 2015''
September 29, 2015--H.R. 3459, ``Protecting Local Business Opportunity 
    Act''

    Committee on Education and the Workforce Oversight

March 3, 2011--Letter to Chairman Wilma Liebman, National Labor 
    Relations Board (NLRB), regarding the NLRB budget.
March 4, 2011--Letter to Chairman Wilma Liebman, National Labor 
    Relations Board (NLRB), regarding NLRB advertisements.
March 7, 2011--Letter to Chairman Wilma Liebman, National Labor 
    Relations Board, regarding the Specialty Healthcare case.
May 5, 2011--Letter to Acting General Counsel Lafe Solomon, National 
    Labor Relations Board, regarding the Boeing case.
May 11, 2011--Letter to Chairman Wilma Liebman, National Labor 
    Relations Board, regarding the Specialty Healthcare case.
October 14, 2011--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, regarding a request for information on pending 
    union election challenges.
October 27, 2011--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, regarding the June 22, 2011 proposed rule on union 
    election procedures.
November 18, 2011--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, regarding the June 22, 2011 proposed rule on union 
    election procedures.
December 16, 2011--Letter to Acting General Counsel Lafe Solomon, 
    National Labor Relations Board, requesting documents and 
    communications related to the Board's complaint against the Boeing 
    Corporation.
January 6, 2012--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, requesting documents drafted in whole or in part 
    by the January 2012 recess appointees to the National Labor 
    Relations Board during their time of employment by the Board.
January 12, 2012--Letter to President Barack Obama opposing the January 
    2012 recess appointments to the National Labor Relations Board 
    while the Senate was regularly meeting in pro forma session.
March 28, 2012--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, regarding the Board's information campaign 
    focusing on workers' rights to engage in protected concerted 
    activity.
April 13, 2012--Letter to Inspector General David Berry, National Labor 
    Relations Board, regarding possible ex parte communications in the 
    Boeing case by Acting General Counsel Solomon.
May 9, 2012--Letter to Acting General Counsel Lafe Solomon, National 
    Labor Relations Board, regarding a request for information relating 
    to the Board's policy changing the timing for representational pre-
    elections.
May 17, 2012--Letter to Acting General Counsel Lafe Solomon, National 
    Labor Relations Board, regarding the Board's position on nationwide 
    enforcement of a regulation in the event of a split in the Federal 
    circuit courts.
August 8, 2012--Letter to Chairman Mark G. Pearce, National Labor 
    Relations Board, regarding a request for a briefing related to the 
    Board's newly established Office of the Chief Financial Officer.
September 17, 2012--Letter to Attorney General Eric H. Holder, U.S. 
    Department of Justice, regarding allegations by the National Labor 
    Relations Board Office of Inspector General that the Acting General 
    Counsel for the National Labor Relations Board, Lafe Solomon, 
    engaged in ethical and criminal misconduct.
November 29, 2012--Letter to Chairman Mark G. Pearce, National Labor 
    Relations Board, and Acting General Counsel Lafe Solomon, National 
    Labor Relations Board, regarding Office of Inspector General's 
    finding that personnel in the Division of Advice and Region 19 
    infringed upon statutory prohibitions regarding ex parte 
    communications to Board Members.
March 15, 2013--Letter to Chairman Mark G. Pearce, National Labor 
    Relations Board and to Lafe E. Solomon, Acting General Counsel, 
    National Labor Relations Board regarding the effect of 
    sequestration under the Budget Control Act of 2011 on the National 
    Labor Relations Board.
May 14, 2013--Letter to Ms. Kathryn Ruemmler, Counsel to the President, 
    The White House, requesting information related to the nomination 
    of Richard Griffin to the National Labor Relations Board.
March 25, 2014--Letter to Chairman Mark Pearce, National Labor 
    Relations Board (NLRB), requesting a 30-day extension of the 
    comment period for the NLRB's February 6, 2014, representation-case 
    procedures proposed rule.
April 7, 2014--Letter to Chairman Mark Pearce, National Labor Relations 
    Board (NLRB), stating opposition to the NLRB's February 6, 2014, 
    representation-case procedures proposed rule.
July 8, 2014--Letter to Chairman Mark Pearce, National Labor Relations 
    Board (NLRB), requesting a briefing regarding the NLRB's planned 
    response to the Supreme Court's Noel Canning decision, holding that 
    President Obama's January 2012 recess appointments to the NLRB are 
    unconstitutional.
September 16, 2014--Letter to General Counsel Richard Griffin, National 
    Labor Relations Board, requesting information regarding the joint-
    employer test under the National Labor Relations Act.
November 14, 2014--Letter to General Counsel Richard Griffin, National 
    Labor Relations Board, requesting a briefing regarding NLRB's 
    August 8, 2014 guidance to personnel concerning steps they should 
    take to identify alleged wrongdoing under the Occupational Safety 
    and Health Act and the Fair Labor Standards Act.
February 2, 2015--Letter to Chairman Mark Pearce, National Labor 
    Relations Board, requesting documents and communications related to 
    the timing of the Board's publication of the ``ambush election' '' 
    rulemaking when it failed to be reported as a short-term action in 
    the 2014 Fall Unified Agenda.

    Committee on Education and the Workforce Legislation

H.R. 3094, Workforce Democracy and Fairness Act
H.R. 2587, Protecting Jobs From Government Interference Act
H.R. 2346, Secret Ballot Protection Act
H.R. 2347, Representation Fairness Restoration Act
H.R. 1120, The Preventing Greater Uncertainty in Labor-Management 
    Relations Act
H.R. 4321, Employee Privacy Protection Act
H.R. 511, Tribal Labor Sovereignty Act of 2015
H.R. 3459, Protection Local Business Opportunity Act
H.J.  Res. 29, ``Providing for congressional disapproval under chapter 
    8 of title 5, United States Code, of the rule submitted by the 
    National Labor Relations Board relating to representation case 
    procedures''

    Question 18. On March 8, 2011, Congressmen John Kline and Darrell 
Issa sent a letter to former NLRB Chairman Wilma Liebman requesting, in 
part, an extension of the comment period on the invitation to file 
briefs in Specialty Healthcare, and specific information including 
communications and financial analysis related to that case. Congressman 
Kline sent a followup letter about this issue to Chairman Liebman on 
May 11 repeating the request for documents. Did you participate in 
drafting these letters? Do you believe that the process in the 
Specialty Healthcare case, which has now been affirmed by seven courts 
of appeals, was insufficient?
    Answer 18. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of the 
letters for Chairmen Kline and Issa. The positions taken in this letter 
do not necessarily represent my views. The National Labor Relations 
Board did not provide sufficient information to judge the sufficiency 
of the process.

    Question 19. Did you participate in drafting legislation to reverse 
and override the NLRB's decision in Specialty Healthcare (involving the 
standard for determining appropriate bargaining units)?
    Answer 19. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of 
legislation for the Chairman and Members of Congress, including the 
Workforce Democracy and Fairness Act and the Representation Fairness 
Restoration Act. The positions taken in these bills do not necessarily 
represent my views. They express the views of the Congressmen that 
introduced them. See also answer 20 below.

    Question 20. Do you believe that the Specialty Healthcare decision 
should be overturned?
    Answer 20. I have not prejudged the issues presented in Specialty 
Healthcare. If confirmed, my decision in a case that requires the Board 
to evaluate the appropriateness of a bargaining unit will be based on 
the facts before us, legislative text, legislative history, Board and 
court precedent, an analysis of the party's briefs, staff 
recommendations, and discussions with my fellow Board members.

    Question 21. On October 27, 2011 Congressman John Kline sent a 
letter to Chairman Mark Pearce regarding the proposed NLRB rule to 
shorten the time between a petition for an election and the actual 
election. The letter expressed that he ``reject[ed] both the need for 
this rule change and the appropriateness of the Board's proposal.'' The 
letter also requested information related to the rulemaking including a 
list of NLRB staff who were working on the rule and a timeline of 
planned Board actions regarding the rulemaking. Did you participate in 
drafting the letter? If so, will you recuse yourself from matters 
relating to the NLRB election rule?
    Answer 21. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of the 
letter for Chairman Kline. The positions taken in this letter do not 
necessarily represent my views. I have had general discussions 
regarding the standards for recusal with the NLRB ethics office. If I 
am confirmed, I will continue to seek their advice and act 
appropriately. See also my answer to #24 below.

    Question 22. Did you participate in the preparation of hearings 
critical of the NLRB's election rules?
    Answer 22. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I assisted in the preparation of hearings 
related to the NLRB, including those analyzing NLRB election rules. See 
also my answer to #24 below.

    Question 23. Did you participate in the drafting of legislation to 
overturn the election rules?
    Answer 23. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of 
amendments to the National Labor Relations Act as directed by the 
Chairman and Members of Congress, including the Workforce Democracy and 
Fairness Act which addressed union elections. The positions taken in 
the bill does not necessarily represent my views. It expresses the 
views of the Congressmen that introduced it. See also answer 24 below.

    Question 24. Do you believe the election rules, which have been 
upheld in their entirety by the three courts and have had their desired 
effect of reducing delay from the time of an election petition to an 
election, should be revised?
    Answer 24. If I am confirmed and the Board revisits the election 
rules through the adjudicatory process or formal rulemaking, any 
revisions to the election rules to which I agree will be based on the 
facts before us, legislative text, legislative history, Board and court 
precedent, an analysis of the party's briefs or public comments, staff 
recommendations, and discussions with my fellow Board members.

    Question 25. Did you work on legislation to overturn the NLRB's 
Browning-Ferris decision on the standard for finding two employers to 
be joint employers?
    Answer 25. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of 
amendments to the National Labor Relations Act as directed by the 
Chairman and Members of Congress. This includes the Protecting Local 
Business Opportunity Act which set out a standard for determining 
whether two employers are joint employers. The positions taken in the 
bill does not necessarily represent my views. It expresses the views of 
the Congressmen that introduced it. See also answer 26 below.

    Question 26. Do you believe that the NLRB's Browning-Ferris 
decision should be overturned?
    Answer 26. I have not prejudged the issues presented in Browning-
Ferris. If confirmed, my decision in a case that raises joint employer 
issues will be based on the facts before us, legislative text, 
legislative history, Board and court precedent, an analysis of the 
party's briefs, staff recommendations, and discussions with my fellow 
Board members.

    Question 27. If you are confirmed, please explain the approach that 
you will take with regard to recusal on issues that come before the 
Board where you have directly engaged in efforts that suggest you may 
have prejudged the issues including the Browning-Ferris decision, the 
Specialty Healthcare decision, and the election rule.
    Answer 27. I have had general discussions regarding the standards 
for recusal with the NLRB ethics office. If I am confirmed, I will 
continue to seek their advice and act appropriately. See also my 
answers to #20 and #26 above.

    Question 28. On May 5, 2011, Congressmen John Kline and Phil Roe 
sent a letter to former Acting General Counsel Lafe Solomon regarding 
the NLRB's complaint that Boeing officials publicly acknowledged moving 
jobs for the Dreamliner production to South Carolina as a result of 
work stoppages in Washington State. The letter questioned the 
``appropriateness and evolution'' of the complaint and requested 
information including all documents and communications between NLRB 
Region 19 office and the NLRB National office about Boeing complaint as 
well as an explanation of why NLRB made its decision. Did you 
participate in drafting that letter? Do you believe it is appropriate 
for Congress to seek these types of communications from the NLRB?
    Answer 28. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of the 
letter for Chairman Kline and Congressman Roe. The positions taken in 
this letter do not necessarily represent my views. Congressional 
oversight is implied by the Constitution since Congress possesses ``all 
legislative powers.'' The Supreme Court has ruled congressional 
oversight must have a ``legislative purpose.'' Chairman Kline and 
Congressman Roe requested the information to evaluate the issue and 
determine whether legislation was necessary. Ultimately, then-
Congressman Tim Scott introduced the Protecting Jobs From Government 
Interference Act. If confirmed, I will confer with NLRB staff and the 
other members of the Board on all oversight requests and, as has been 
the tradition for previous Boards, endeavor to cooperate regarding 
oversight requests.

    Question 29. On December 16, 2011, Congressmen John Kline and Phil 
Roe sent another letter to former Acting General Counsel Lafe Solomon 
regarding the NLRB complaint against Boeing related to transfer of work 
from Washington State, which had subsequently been withdrawn by the 
complainant. The letter accuses Mr. Solomon of intending to ``apply 
government pressure on a private employer in the middle of a labor 
dispute,'' and calls the action ``bureaucratic overreach.'' The letter 
also requests information including all communication between the NLRB 
and outside parties and all communication between the Acting General 
Counsel and NLRB Board members related to the case. Did you participate 
in drafting that letter? Do you believe it is appropriate for Congress 
to seek these types of communications from the NLRB?
    Answer 29. As Workforce Policy Counsel of the House Committee on 
Education and the Workforce, I participated in the drafting of the 
letter for Chairman Kline and Congressman Roe. The positions taken in 
this letter do not necessarily represent my views. As stated 
previously, congressional oversight is implied by the Constitution 
since Congress possesses ``all legislative powers.'' The Supreme Court 
has ruled congressional oversight must have a ``legislative purpose.'' 
Chairman Kline and Congressman Roe requested the information to 
evaluate the issue and determine whether legislation was necessary. 
Ultimately, then-Congressman Tim Scott introduced the Protecting Jobs 
From Government Interference Act. If confirmed, I will confer with NLRB 
staff and the other members of the Board on all oversight requests and, 
as has been the tradition for previous Boards, endeavor to cooperate 
regarding oversight requests.

    Question 30. Do you believe it was appropriate for the House 
Oversight Committee to subpoena the NLRB Acting General Counsel to 
testify at a field hearing at the site of the Boeing facility that was 
the subject of the NLRB complaint?
    Answer 30. I have no knowledge of the events surrounding the 
subpoena of Acting General Counsel Solomon. As such, I have no opinion 
as to the appropriateness of the subpoena.

    Question 31. What is the appropriate role of an NLRB member in 
facilitating oversight by Members of Congress?
    Answer 31. Members of Congress should confer with NLRB staff and 
the other members of the Board, and, as has been the tradition for 
previous Boards, endeavor to cooperate regarding oversight requests.

    Question 32. Is it appropriate for a single NLRB member to respond 
to an oversight request without consulting counsel's office and working 
with the other NLRB members?
    Answer 32. Board Members should generally attempt to work together, 
and with their professional staff, to appropriately respond to 
congressional oversight requests.

    Question 33. Will you commit to working with other NLRB members to 
fully respond to congressional oversight requests made during your 
tenure at NLRB?
    Answer 33. If confirmed, I will confer with NLRB staff and the 
other members of the Board on all oversight requests and, as has been 
the tradition for previous Boards, endeavor to cooperate regarding 
oversight requests.
                             senator casey
    Question 1. Do you support the Board's rulemaking authority?
    Answer 1. Yes.

    Question 2. Who did you speak with to prepare for your July 13, 
2017 NLRB confirmation hearing?
    Answer 2. NLRB staff; NLRB Chairman Philip Miscimarra; Senate 
Health, Education, Labor, and Pension Majority Staff; Former-NLRB 
member Charles Cohen; Former-NLRB member Brian Hayes; Former-NLRB 
General Counsel Ronald Meisburg; Loren Sweatt, Senior Policy Advisor, 
House Committee on Education and the Workforce; and John Martin, 
Professional Staff Member, House Committee on Education and the 
Workforce.

    Question 3. What is your view on the authority of precedent: is the 
Board bound by its precedent?
    Answer 3. The NLRB should endeavor to maintain stability in labor 
law. Among other things, deference to precedent should be based on the 
time it has been precedent and the number of times it has been upheld 
by subsequent Boards. If, after a thorough analysis of the facts, 
legislative text, and legislative history, evaluation of the briefs, 
meetings with staff, and discussions with fellow members, a change in 
longstanding settled precedent is appropriate, the Board should adhere 
to the tradition of requiring three votes in the affirmative.

    Question 4. Will you recuse yourself from any cases before the NLRB 
that involve President Trump's business--especially the businesses he 
visits and promotes as President?
    Answer 4. I will confer with the NLRB ethics office to determine 
whether recusal is necessary.

    Question 5. List and discuss specific examples of how workers have 
benefited from the result of your professional actions.
    Answer 5. At the direction of the Chairmen of both the House 
Committee on Oversight and Government Reform and the Committee on 
Education and the Workforce, I conducted oversight of the National 
Labor Relations Board. True oversight requires a thorough understanding 
of the authorizing statute, in this case the National Labor Relations 
Act, and Board and court cases interpreting the Act. This work also 
involved considering the interest of employees, unions, and employers 
covered by the Act.
    In 2011, Inspector General David Berry issued a report entitled 
``Case Processing Costs'' which indicated the NLRB regional offices 
could achieve greater efficiencies by consolidating offices and 
eliminating positions in overstaffed regions by attrition. In 2012, as 
workforce policy counsel for the House Education and the Workforce 
Committee, I worked extensively with NLRB Inspector General and the 
National Labor Relations Board to institute reforms related to the IG's 
2011 findings. Ultimately, the NLRB consolidated offices from 32 to 26. 
Greater efficiency is essential to the expeditious handling of both 
unfair labor practice charges and elections, which, in turn, is 
essential to protecting the rights of workers to organize.
                            senator franken
    Question. Would you agree that in general, a company is not allowed 
to avoid an existing union contract simply by reincorporating under a 
new name, with substantially the same ownership, management, and 
assets? Please explain.
    Answer. Yes. However, determining whether a company is an alter 
ego, single employer, or successor is a very fact-intensive process. If 
confirmed, any decision I render will be based on the facts before us, 
legislative text, legislative history, Board and court precedent, an 
analysis of the party's briefs, staff recommendations, and discussions 
with my fellow Board members.
                           senator whitehouse
    Question 1. 1. At your nomination hearing, you committed to 
``respect longstanding precedent.'' What is your interpretation of 
``longstanding precedent?'' Does the Board's decision in Browning-
Ferris count as ``longstanding precedent''?
    Answer 1. I believe longstanding precedent is precedent that has 
stood for a substantial period and has been upheld by subsequent 
Boards. I would not characterize the Board's Browning-Ferris decision 
as longstanding precedent. However, as precedent, if confirmed, I would 
afford the Browning-Ferris decision the respect and deference it 
deserves.
    I have not prejudged the issues presented in Browning-Ferris. If 
confirmed, my decision in a case that raises joint employer issues will 
be based on the facts before us, legislative text, legislative history, 
Board and court precedent, an analysis of the party's briefs, staff 
recommendations, and discussions with my fellow Board members.

    Question 2. Can you pledge that there will be no preferential 
treatment for any businesses owned by President Trump that may have 
cases that come before the NLRB?
    Answer 2. If confirmed, I pledge I will give no preferential 
treatment to any businesses owned by President Trump or any other 
individual.

    Question 3. Will you fully cooperate with any inquiries from the 
GAO, or the NLRB IG?
    Answer 3. Yes.

    Question 4. The Trump Budget proposed to cut NLRB staff by 18 
percent. How would such a funding cut affect the NLRB's work?
    Answer 4. I am not familiar with the current disposition of NLRB 
funds. However, if confirmed, I look forward to working with the 
General Counsel and my fellow Board members to determine the best 
distribution of NLRB funds and identify areas where efficiency can be 
improved to maximize those funds.

    Question 5. NOAA, NASA, the U.S. National Academies of Sciences, 
and 31 leading, nonpartisan scientific societies all agree that climate 
change is real and humans are major contributors to it. Do you believe 
climate change is real? Do you personally believe that human activity 
contributes to climate change?
    Answer 5. Yes and yes.

    Question 6. Will you sign the Trump Ethics pledge? Do you expect to 
request any waivers to the Trump Ethics pledge? If so, please explain.
    Answer 6. Yes, I will sign the Trump Ethics pledge. I do not plan 
to seek a waiver.

    Question 7. Have you ever solicited money for a 501(c)(4) political 
organizations.? If so, for what organization? From whom? In what 
amounts? When were these donations solicited?
    Answer 7. No, I have not solicited money for a 501(c)(4) political 
organization.

    Question 8. For anyone listed above, will you recuse yourself from 
any issues involving these individuals or organizations in your role as 
Board Member?
    Answer 8. N/A.
                             senator warren
    Question 1a. If confirmed, do you believe that it is appropriate 
for you to rule on a case to which a company owned by the President who 
nominated you is a party?
    Answer 1a. Yes.

    Question 1b. If so, do you believe that such circumstances create a 
perceived, if not real, conflict of interest?
    Answer 1b. If confirmed, I will rely on the NLRB ethics staff to 
ensure there are no conflicts of interest and I will abide by their 
determinations.

    Question 1c. If not, will you commit to recusing yourself from any 
such case?
    Answer 1c. N/A.

    Question 2. Please describe your view on the weight of NLRB 
precedent as the Board considers a case with relevant precedent.
    Answer 2. Among other things, deference to precedent should be 
based on the length of time a decision has stood as precedent and the 
number of times it has been upheld by subsequent Boards.

    Question 3a. Please describe what you believe to be the role of a 
member of the Board in accommodating oversight requests by Members of 
Congress.
    Answer 3a. As has been the tradition for previous Boards, the NLRB 
should endeavor to cooperate regarding oversight requests.

    Question 3b. Will you commit to responding in full to any requests 
from chairs or ranking members of relevant committees, or requests from 
Members of Congress on NLRB matters?
    Answer 3b. If confirmed, I will confer with NLRB staff and the 
other members of the Board on all oversight requests and, as has been 
the tradition for previous Boards, endeavor to cooperate regarding 
oversight requests.
                             senator kaine
    Question 1a. In hearing cases on unfair labor practices and union 
representation, the National Labor Relations Board (NLRB) must enforce 
the National Labor Relations Act in light of the prior decisions of the 
board and the present-day circumstances of the case at issue. While 
precedent is often a guiding force in such determinations, the board 
does occasionally overturn or clarify aspects of prior decisions. For 
example, in Browning-Ferris, the NLRB reversed a decades-old standard 
regarding when two or more businesses should be considered ``joint 
employers'' for the same set of employees, modifying the standard to 
include ``indirect control'' over the terms and conditions of 
employment or the capability for exerting such control. In discussing 
the rationale for this decision, the NLRB noted that the previous joint 
employer standard was anachronistic and needed to be updated to reflect 
new economic conditions and the increased prevalence of contingent 
employment relationships.
    In your opinion, what factors should be taken into consideration 
when deciding whether to uphold, modify, or reverse existing legal 
standards?
    Answer 1a. The NLRB should endeavor to maintain stability in labor 
law. Among other things, deference to precedent should be based on the 
length of time a decision has stood as precedent and the number of 
times it has been upheld by subsequent Boards. If, after a thorough 
analysis of the facts, legislative text, and legislative history, 
evaluation of the briefs, meetings with staff, and discussions with 
fellow members, a change in long standing settled precedent is 
appropriate, the Board should adhere to the tradition of requiring 
three votes in the affirmative.

    Question 1b. How reactive should the interpretation of existing law 
be to emerging trends and changes in the workforce and the employer-
employee relationship?
    Answer 1b. If confirmed, I will apply the language of the National 
Labor Relations Act and its amendments to matters that come before the 
Board. Emerging trends and changes in the workforce and the employer-
employee relationship should be dealt with by Congress through the 
legislative process.

    Question 2a. Do you feel that interpretations of the NLRA that 
could potentially increase the amount of collective bargaining in a 
business or industry through allowing for the unionization of subsets 
of employees (i.e., ``micro units'') within the larger employee pool or 
expanding the scope of the definition of an employer would make 
collective bargaining more or less effective for employers and 
employees?
    Answer 2a. The Specialty Healthcare and Browning-Ferris decisions 
are relatively new. It is unclear whether or not they have made 
collective bargaining more or less effective for employers and 
employees.
    I have not prejudged the issues presented in Specialty Healthcare 
or Browning-Ferris. If confirmed, my decision in a case that requires 
the Board to evaluate the appropriateness of a bargaining unit or 
raises joint employer issues will be based on the facts before us, 
legislative text, legislative history, Board and court precedent, an 
analysis of the party's briefs, staff recommendations, and discussions 
with my fellow Board members.

    Question 2b. What challenges could arise from more liberal 
interpretations of what constitutes an appropriate bargaining unit or 
an employer?
    Answer 2b. Different interpretations could create confusion or 
uncertainty. Segmented workplaces may raise issues for employees, 
potentially limiting their opportunities for cross training, 
advancement, and additional work hours. Increasing the number of 
employers at the bargaining table could complicate the bargaining 
process, delaying collective bargaining agreements and increasing the 
likelihood of impasse.

    Question 2c. In your opinion, would such interpretations of the 
NLRA ultimately put employees in stronger or weaker bargaining 
positions?
    Answer 2c. It would depend on the facts of a particular case.

    Question 2d. In your opinion, what effect, if any, would such 
interpretations of the NLRA have on franchises, staffing agencies, and 
the way that such entities approach business operations?
    Answer 2d. I have no personal experience with franchising or 
staffing agencies and thus, I am not in a position to comment as to 
what effect these decisions would have on business operations.
    Again, I have not prejudged the issues presented in Specialty 
Healthcare or Browning-Ferris. If confirmed, my decision in a case that 
requires the Board to evaluate the appropriateness of a bargaining unit 
or raises joint employer issues will be based on the facts before us, 
legislative text, legislative history, Board and court precedent, an 
analysis of the party's briefs, staff recommendations, and discussions 
with my fellow Board members.

    Question 3a. In Murphy Oil, the Fifth Circuit ruled that 
arbitration agreements containing class waivers are enforceable, 
directly contradicting the NLRB's prior decision to invalidate such 
agreements in D.R. Horton. In Epic Systems and Ernst & Young, the 
Seventh and Ninth Circuits interpreted this question differently and 
upheld the NLRB's position in D.R. Horton. The Supreme Court has agreed 
to hear all three of these cases and will review this issue in its 
2017-18 term.
    In your opinion, how far does the NLRA's protection of the right of 
employees to engage in ``concerted activity'' extend?
    Answer 3a. With few exceptions, the National Labor Relations Act 
protects union and non-union employees who engage in concerted activity 
for mutual aid or protection.

    Question 3b. Could the right to engage in concerted activities be 
interpreted to create a substantive right to bring class or collective 
actions that trumps the terms of arbitration agreements?
    Answer 3b. The courts have split on this question and the Supreme 
Court is likely to rule soon. The objectives of the Federal Arbitration 
Act must be balanced against those of the National Labor Relations Act. 
I have not prejudged the issues presented in Murphy Oil and similar 
cases. If confirmed, my decision in such cases will be based on the 
facts before us, legislative text, legislative history, Board and court 
precedent, an analysis of the party's briefs, staff recommendations, 
and discussions with my fellow Board members.
 Response by William Emmanuel to Questions of Senator Roberts, Senator 
  Murray, Senator Casey, Senator Franken, Senator Whitehouse, Senator 
                       Warren, and Senator Kaine
                            senator roberts
    Question 1. Mr. Emanuel, as you know, in a 1979 case called NLRB v. 
Catholic Bishop of Chicago, the U.S. Supreme Court held that the NLRB 
had no jurisdiction over instructors at church-operated schools. In a 
2014 case called Pacific Lutheran University, the NLRB chose in a 
divided 3-2 opinion to disregard that judicial precedent and instead 
adopted a test where the NLRB will assert jurisdiction unless a 
religious-affiliated institution in part proves to the NLRB's 
satisfaction that it holds out its faculty as performing a ``specific 
religious function.''
    If confirmed, should a situation arise where a case is brought 
before the NLRB, will you give this issue the careful attention it 
deserves and be sure to give proper weight to precedent in similar 
cases?
    Answer 1. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    1Question 2. Mr. Emanuel, in the 2004 decision in Lutheran Heritage 
Village-Livonia, the Board has determined work rules and handbook 
provisions are unlawful if employees ``would reasonably construe'' them 
to prohibit protected activities under Section 7 of the NLRA. Under 
this standard, the Board has found dozens of facially neutral 
employment policies to be unlawful, raising real questions about how 
employers can draft, let alone implement, responsible employment 
policies.
    If confirmed, should a situation arise where a case is brought 
before the NLRB, will you give this issue the careful attention it 
deserves?
    Answer 2. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.
                             senator murray
    Question 1. What, in your view, is the mission of the agency to 
which you have been nominated?
    Answer 1. To enforce the National Labor Relations Act as enacted by 
Congress.

    Question 2. Do you believe that the purpose of the National Labor 
Relations Act (NLRA), enforced by the National Labor Relations Board 
(NLRB or Board), is to encourage and protect workers' rights to 
organize and engage in collective bargaining with their employers? If 
not, please describe in detail your views on the purpose of the NLRA 
and the Board.
    Answer 2. As stated in Section 1 of the NLRA, one purpose is

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

    In 1947, the NLRA was amended to add several additional purposes:

    (1) ``to prescribe the legitimate rights of both employees and 
employers in their relations affecting commerce,''
    (2) ``to provide orderly and peaceful procedures for preventing the 
interference by either with the legitimate rights of the other,''
    (3) ``to protect the rights of individual employees in their 
relations with labor organizations whose activities affect commerce,''
    (4) ``to define and proscribe practices on the part of labor and 
management which affect commerce and are inimical to the general 
welfare,'' and
    (5) ``to protect the rights of the public in connection with labor 
disputes affecting commerce.''

    Question 3. During your confirmation hearing before the committee, 
I asked you whether protecting and promoting workers' right to organize 
was the mission of the NLRB. You responded that this was one of the 
Board's missions, along with protecting employers, individual employees 
and the public. Are all of these interests of equal weight, or are some 
of them more important than others?
    Answer 3. It is up to Congress to decide the relative importance of 
these statutory goals. The Board's responsibility is to enforce the 
NLRA as enacted by Congress.

    Question 4. During your confirmation hearing before the committee, 
you were asked whether your work ever benefited workers or unions. In 
response, you stated that you have engaged in collective bargaining and 
that workers benefited from this process through higher wages and 
benefits. Has an employer you have represented in collective bargaining 
ever been charged with a failure to bargain in good faith in violation 
of section 8(a)(5) of the National Labor Relations Act? If yes, please 
provide additional details.
    Answer 4. I have represented employers for many years. It is 
possible that such a charge has been filed although I do not recall a 
specific case where that has occurred. Of course, a charge is only an 
allegation, and not a decision by the Board that a violation of the Act 
has occurred.

    Question 5. Arthur Mendelson, the founder of your firm Littler 
Mendelson once said of your firm's specialization in union avoidance 
tactics: ``our clients pay a lot of money . . . if they want 
aggressiveness, they are entitled to it.'' If you are confirmed, please 
describe the steps that you will take to transition from a practitioner 
and senior partner at a firm with this philosophy to a neutral arbiter 
as a Member on the NLRB?
    Answer 5. Attorneys have a responsibility to zealously represent 
their clients' interests. I understand that, if confirmed, my role and 
responsibilities as a member of the NLRB will be different than my role 
and responsibilities as an advocate in private practice. If I am 
confirmed, I will do my best to objectively decide the issues that come 
before the Board after considering the facts of each case, the intent 
of Congress as expressed in the NLRA, the Supreme Court's precedent, 
the Board's precedent, the arguments of the parties, and the views of 
the other members of the Board.

    Question 6. In a 2012 pod cast, you indicated that you ``come 
from'' a perspective of valuing worker protection laws far less than 
creating an employer-friendly legal climate. You said,

          ``My topic is California employment laws from a broad brush 
        prospective and how the employment laws in California create a 
        horrible anti-employer climate. It's a terrible climate for job 
        creation and job retention. Now you know at the outset where I 
        come from.''

    Is this the perspective you will bring to the Board?
    Answer 6. Based on my experience, there is a consensus among 
employers that many of the State employment laws in California are as I 
described them. However, this is not relevant to how I would decide 
cases under the NLRA, which is a separate Federal statute that is 
unrelated to State employment laws.
    If I am confirmed, I will do my best to objectively decide the 
issues that come before the Board after considering the facts of each 
case, the intent of Congress as expressed in the NLRA, the Supreme 
Court's precedent, the Board's precedent, the arguments of the parties, 
and the views of the other members of the Board.

    Question 7. Please describe your views on the role and importance 
of labor unions in today's workplaces and economy.
    Answer 7. Unions have certain rights under the NLRA, and I will 
enforce that statute faithfully and impartially.

    Question 8. What, in your view, would be a scenario in which it 
would be appropriate for the NLRB to take action against a company who 
is unfairly retaliating against workers based on antiunion hostility?
    Answer 8. If a violation of the NLRA by an employer is proven, an 
appropriate remedy should be ordered.

    Question 9. Do you agree that the workplace and the employer-
employee relationship has changed dramatically in recent years? If so, 
can you describe what you see as the key changes affecting workers' 
ability to join together and engage in collective bargaining? What are 
some of those challenges and how would you go about addressing them?
    Answer 9. These questions would be beyond the scope of my 
responsibilities as a Board member, if I am confirmed. The 
responsibility of Board members is to enforce the NLRA.

    Question 10. Do you believe that the designation of workers as 
independent contractors rather than employees is a practice that is 
increasing?
    Answer 10. This would be beyond the scope of my responsibilities as 
a Board member if I am confirmed. The responsibility of Board members 
is to enforce the NLRA.

    Question 11. Please provide your view on when the NLRB should 
overturn settled precedents, and what the standard should be in doing 
so.
    Answer 11. By tradition, the Board does not change precedent 
without the votes of three Board members. Otherwise, precedent has not 
been treated as binding. My view is that precedent should not be 
followed if it is in conflict with the NLRA as enacted by Congress. The 
Board's responsibility is to enforce that statute.

    Question 12. What specific considerations do you intend to rely 
upon in deciding whether to authorize petitions to have a recidivist 
violator of the NLRA held in contempt of court for violating a court 
order?
    Answer 12. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 13. Do you believe that there were instances where the 
Board has exceeded its authority during the Obama administration? If 
so, when?
    Answer 13. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 14. The Board has been the target of criticism for its use 
of adjudication rather than rulemaking to establish policy. Under 
President Obama, the Board conducted two major notice-and-comment 
rulemakings for the first time in decades. If confirmed, do you intend 
to continue this practice of making new rules or altering existing 
rules through notice-and-comment procedures?
    Answer 14. It would be inappropriate for me to comment on this 
question. If rulemaking proposals are submitted, I will consider them 
at that time.

    Question 15. The Administrative Conference of the United States has 
recommended that agencies ``should develop processes for systematic 
review of existing regulations'' and that they ``should provide 
adequate opportunity for public involvement in both the priority-
setting and review processes.'' If confirmed, will you conduct robust, 
transparent retrospective reviews prior to any revision or reversal of 
existing NLRB law?
    Answer 15. I am not familiar with this recommendation, but I will 
study the issue, if confirmed.

    Question 16. Do you believe that existing doctrines and regulations 
should only be changed when there is empirical evidence suggesting that 
they are flawed, or is it appropriate to revise rules even if such 
revisions are not supported by concrete evidence?
    Answer 16. They should be changed if they are contrary to the NLRA. 
The Board's responsibility is to enforce that statute.

    Question 17. Please provide a list of all cases currently pending 
before the NLRB in which Littler Mendelson represents a party. For each 
of these cases, please indicate whether you authored, edited, revised, 
or reviewed materials related to the case. If yes, please describe the 
services you performed and indicate at what stage of the process you 
participated.
    Answer 17. A list of these cases is attached\1\ to this document. I 
did not author, edit, revise or review materials related to any of the 
cases.
---------------------------------------------------------------------------
    \1\ All attachments are being retained in committee files.

    Question 18. Please provide a list of all cases decided by the NLRB 
and that are currently on appeal in which Littler Mendelson represents 
a party. For each of these cases, please indicate if you authored, 
edited, revised, or reviewed materials related to the case. If yes, 
please describe the services you performed and indicate at what stage 
of the process you participated.
    Answer 18. A list of these cases is attached to this document. I 
did not author, edit, revise or review materials related to any of the 
cases.

    Question 19. Please provide a list of cases pending before the 
NLRB, or on appeal, in which you provided pro bono services including 
any case or matter in which you authored, edited, revised, or reviewed 
materials related to the case without receiving compensation.
    Answer 19. I do not recall providing pro bono services in such a 
case.

    Question 20. Please confirm that you intend to recuse yourself for 
2 years from all cases that come before the NLRB in which Littler 
Mendelson represents a party.
    Answer 20. That is my understanding of the requirement. I will do 
whatever is required by law.

    Question 21. Leadpoint Services, a party in the Board's Browning-
Ferris case, is represented by Littler Mendelson. Will you recuse 
yourself for the required period from any action by the Board that 
involves Leadpoint Services?
    Answer 21. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 22. Please provide a list of all writings and all matters 
during the past 10 years that involve arbitration agreements or class 
action litigation. Please include matters that were not litigated but 
on which you advised or otherwise engaged with a client on these 
subjects. Do not include client names but provide a number of matters 
and a general description of the issue.
    Answer 22. The requested articles are attached to this document. I 
have represented several employers in cases involving class and 
collective action waivers in employment arbitration agreements.

    Question 23. In your view are there limits to an employer's ability 
to require employees to waive their rights to class actions/group 
actions as a condition of employment?
    Answer 23. It would be inappropriate for me to comment on this 
subject. If I am confirmed, I will do my best to objectively decide the 
issues that come before the Board after considering the facts of each 
case, the intent of Congress as expressed in the NLRA, the Supreme 
Court's precedent, the Board's precedent, the arguments of the parties, 
and the views of the other members of the Board.

    Question 24. Your writings include at least six articles critical 
of the NLRB's decision in D.R. Horton, including one article entitled 
``NLRA v. FAA: Why the NLRB Got It Wrong in D.R. Horton.'' Do you 
believe that you can be a neutral arbiter on the issue of arbitration 
clauses limiting employees' rights in class action cases?
    Answer 24. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 25. Given the extent of your personal views, and your 
involvement in the issue of arbitration agreements and class action 
litigation, do you believe you will be free of an appearance of a 
conflict should these issues come before you as a Member of the NLRB?
    Answer 25. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 26. As a specific example to the preceding question, you 
have expressed views that D.R. Horton and Murphy Oil, currently pending 
before the Supreme Court, was wrongly decided. You also filed an amicus 
brief in the case on behalf of the National Retail Federation. Will you 
recuse yourself from involvement with these cases with regard to action 
by the Board?
    Answer 26. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 27. Please provide a list of all writings and all matters 
during the past 10 years that involve union activity and private 
property and/or trespass. Please include matters that were not 
litigated but on which you advised or otherwise engaged with a client 
on these subjects. Do not include client names but provide a number of 
matters and a general description of the issue.
    Answer 27. Copies of the articles are attached to this document. 
This question involves State trespass laws and it does not involve the 
NLRB. I have advised various employers on the absence of private 
property rights for employers in California. This is distinct from the 
right of unions and employees to engage in union activity on private 
property under the NLRA, which has not been involved in the articles 
referred to above.

    Question 28. Your writings include at least seven articles that 
discuss your views that employers should have broad rights to limit 
access for union supporters to the employer's private property. In a 
2009 article titled ``Union Trespassers Roam Corridors of California 
Hospitals--Is a Return to the Rule of Law Possible?'' you wrote,

          ``The trespass laws are not adequately enforced against labor 
        unions. Many employers suffer from this unequal protection of 
        the laws. [. . .] This situation is unfair.''

    Given the extent of your personal views, and your involvement as a 
client advocate in this issue, do you believe that you will be free of 
an appearance of a conflict should these issues come before you as a 
member of the NLRB?
    Answer 28. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 29. With regard to the Specialty Healthcare case, 
involving rules for determining the make-up of bargaining units, when 
the case was pending in the U.S. Court of Appeals for the Sixth 
Circuit, you authored a brief on behalf of a group of House and Senate 
Republicans. Please provide additional details regarding the brief 
including whether you were compensated for the work, and if so by whom.
    Answer 29. I assisted in writing the brief, but I was not involved 
in the client relationship, and I am not aware of the extent of 
compensation.

    Question 30. What is the appropriate role of an NLRB Member in 
facilitating oversight by Members of Congress?
    Answer 30. Because I do not have prior experience with responding 
to congressional oversight requests, I plan to work with other members 
of the Board, as well as the Board's professional staff, to ensure that 
the Board responds to oversight requests received from Congress in an 
appropriate manner.

    Question 31. Is it appropriate for a single NLRB member to respond 
to an oversight request without working with counsel's office and 
working with the other NLRB Members?
    Answer 31. Board members should attempt to work together, and with 
the guidance and input of the Board's professional staff, to the 
fullest extent possible to respond to oversight requests received from 
Congress in an appropriate manner.

    Question 32. If confirmed, will you commit to working with other 
NLRB Members to fully respond to congressional oversight requests made 
during your tenure at NLRB?
    Answer 32. If confirmed, I will attempt to work together with other 
Board members and the Board's professional staff to the fullest extent 
possible to respond to oversight requests received from Congress in an 
appropriate manner.

    Question 33. Please provide copies of your contribution to the 
following publications:

     California Employment Law, a Guide to California Laws 
Regulating Employment in the Private Sector, Merchants and 
Manufacturers Association, 1990.
     California Employment Law, a Guide to California Laws 
Regulating Employment in the Private Sector, 2d edition, Merchants and 
Manufacturers Association, 1992.
     California Employment Law, a Guide to California Laws 
Regulating Employment in the Private Sector, 3d edition, The Employers 
Group, 1997.
     Model Affirmative Action Program for Hospitals, California 
Hospital Association, 1973, Supreme Court Bans the Use of Sex-Based 
Mortality Tables in Employee Fringe Benefit Plans, Corporate Law 
Departments Section Newsletter, Los Angeles County Bar Association, 
December 1983.

    The first three items above are three editions of a book written 
several decades ago, which consist of five volumes and would be very 
difficult to copy. The last edition of the book was published in 1997. 
Copies of the other items requested above are attached to this 
document.
                             senator casey
    Question 1. Do you support the Board's rulemaking authority?
    Answer 1. It is my understanding that the Board has the authority 
to adopt rules under the NLRA.

    Question 2. Who did you speak with to prepare for your July 13, 
2017 NLRB confirmation hearing?
    Answer 2. The NLRB's ethics office and congressional office staff, 
the HELP committee's majority staff, and attorneys.

    Question 3. What is your view on the authority of precedent: is the 
Board bound by its precedent?
    Answer 3. By tradition, the Board does not change precedent without 
the votes of at least three members. Otherwise, precedent has not been 
viewed as binding.

    Question 4. Will you recuse yourself from any cases before the NLRB 
that involve President Trump's business--especially the businesses he 
visits and promotes as President?
    Answer 4. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 5. List and discuss specific examples of how workers have 
benefited from the result of your professional actions.
    Answer 5. My law firm and I advise employers on how to comply with 
the NLRA and numerous other complex employment laws. We also train 
managers on the importance of respecting employees and avoiding 
harassment. We conduct audits of employment practices to ensure 
compliance. We provide advice on frequent changes in the various 
employment laws to ensure compliance. We advise on internal complaint 
systems so employees will have a voice in the workplace. Employees 
benefit from all of these actions and others.
                            senator franken
    Question 1. Please list all cases you personally handled, your firm 
handled or are currently handling involving the D.R. Horton issue. 
Please include the name of each case, forum, parties involved, and 
disposition.
    Answer 1. My firm represents amicus parties in the Murphy Oil and 
related cases on this issue now pending before the U.S. Supreme Court, 
and I have had a minor role in that representation. I have also handled 
cases involving this issue for CBRE, Inc., Genesis Heathcare LLC, 
SolarCity, MasTec, Inc., and Handy Technologies, Inc.. All of these 
cases are still pending before the Board at various levels. I also 
represented Securitas Security Services USA, Inc., in a case on appeal 
at the Fifth Circuit in which the employer prevailed. In addition, I 
worked on an amicus brief filed with the Fifth Circuit in the D.R. 
Horton case, in which the employer prevailed. I am not aware of any 
other cases currently being handled by my law firm.

    Question 2. Please provide any public comments you have made, and 
copies of all articles or publications you or your firm were involved 
with on the D.R. Horton/Murphy Oil issue.
    Answer 2. Copies of the articles are attached to this document.

    Question 3. Based on some of your writings on the D.R. Horton and 
Murphy Oil case it appears like you believe the case have been wrongly 
decided. Will you recuse yourself from consideration of any case 
raising the D.R. Horton/Murphy Oil issue? Please explain.
    Answer 3. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 4. Are there limits to an employer's ability to require 
employees to waive their rights to class actions/group actions as a 
condition of employment? Please elaborate.
    Answer 4. It would be inappropriate for me to comment on this 
subject. If I am confirmed, I will do my best to objectively decide the 
issues that come before the Board after considering the facts of each 
case, the intent of Congress as expressed in the NLRA, the Supreme 
Court's precedent, the Board's precedent, the arguments of the parties, 
and the views of the other members of the Board.

    Question 5. Since you have not already agreed to recuse yourself 
from any D.R. Horton/Murphy Oil issue-related cases, please identify 
any case in which you think you should need to recuse yourself and 
explain in detail the basis for your decision.
    Answer 5. f recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 6. Would you agree that in general, a company is not 
allowed to avoid an existing union contract simply by reincorporating 
under a new name, with substantially the same ownership, management, 
and assets? Please explain.
    Answer 6. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the NLRA, the Supreme 
Court's precedent, the Board's precedent, the arguments of the parties, 
and the views of the other members of the Board.
                           senator whitehouse
    Question 1. During your nomination hearing, you agreed that you 
would recuse yourself from any cases involving law firm, but that you 
``do not believe that recusal would apply to issues.'' This is 
concerning as you have previously stated your opinions on several 
issues that are directly related to this position. In particular, you 
submitted an amicus briefs in the pending Supreme Court case, Murphy 
Oil, related to binding arbitration clauses that prohibit class action 
by employees and whether they are a violation of the NLRA. Will you 
recuse yourself on issues on which have already publicly taken a side?
    Answer 1. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 2. You have been a management-side attorney for your 
entire legal career. What specific actions will you take to ensure that 
you do not bring a bias toward employers to your role at the NLRB?
    Answer 2. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 3. Your nomination was met with support by the National 
Right to Work Committee and its President, Mark Mix, said in a June 28 
fundraising e-mail that your nomination would, ``effectively end Big 
Labor's stranglehold over the NLRB.'' The NRLA's preamble states the 
intent is to, ``encourage collective bargaining'' and, as a member of 
the NLRB, your responsibility is to protect workers. Will you commit to 
promoting the interests of workers and encouraging the right to 
collective bargaining as outlined in statute?
    Answer 3. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 4. Can you pledge that there will be no preferential 
treatment for any businesses owned by President Trump that may have 
cases that come before the NLRB?
    Answer 4. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 5. Will you fully cooperate with any inquiries from the 
GAO, or the NLRB IG?
    Answer 5. Although I have no experience responding to inquiries 
received from the GAO or the Board's Inspector General, I will work 
with other Board members, as well as the Board's professional staff, to 
ensure that any such inquiries are responded to in an appropriate 
manner.

    Question 6. The Trump Budget proposed to cut NLRB staff by 18 
percent. How would such a funding cut affect the NLRB's work?
    Answer 6. As I am not currently a member of the Board, I do not 
have a sufficient basis to provide an answer to this question.

    Question 7. NOAA, NASA, the U.S. National Academies of Sciences, 
and 31 leading, nonpartisan scientific societies all agree that climate 
change is real and humans are major contributors to it. Do you believe 
climate change is real? Do you personally believe that human activity 
contributes to climate change?
    Answer 7. Climate Change is beyond the scope of the 
responsibilities that I would assume, if I were confirmed to be a 
member of the Board.

    Question 8. Will you sign the Trump Ethics pledge? Do you expect to 
request any waivers to the Trump Ethics pledge? If so, what would they 
be for?
    Answer 8. I will sign the Ethics pledge, and follow all appropriate 
procedures.

    Question 9. Have you ever solicited money for a 501(c)(4) political 
organizations? If so, for what organization? From whom? In what 
amounts? When were these donations solicited?
    Answer 9. Not to my knowledge.

    Question 10. For anyone listed above, will you recuse yourself from 
any issues involving these individuals or organizations in your role as 
Board Member?
    Answer 10. I do not understand this question, but if questions 
arise regarding recusal, I will request the advice of the Board's 
ethics office.
                             senator warren
    Question 1a. As you know, ethics regulations require that you 
recuse yourself from cases that involve a former client. Your law 
firm's biography notes that your former clients include trade 
associations, and you have written briefs on behalf of trade 
associations including the National Association of Manufacturers and 
the National Retail Federation.
    Have you received compensation from any trade associations over the 
past 10 years?
    Answer 1a. I have not received any compensation directly. In some 
cases, fees were paid to my law firm.

    Question 1b. If so, please list them and the total amount of 
compensation you received from each of them, and describe the terms of 
your agreements with them.
    Answer 1b. I have not received any compensation directly. In some 
cases, fees were paid to my law firm. I am not aware of the terms of 
the firm's agreements with any of the current clients in this category.

    Question 1c. Regardless of its legality, do you believe that it 
would be appropriate for you to hear and rule on a case in which a 
member of a trade association that you have represented is a party?
    Answer 1c. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 1d. If so, why do you believe that it is inappropriate for 
you to rule on a case in which a former client is a party, but 
appropriate for you to rule on a case in which a member of a former 
client is a party?
    Answer 1d. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 1e. If not, will you commit to recusing yourself from 
cases in which a party is a member of an association that you have 
represented?
    Answer 1e. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 2a. The financial disclosure report that you submitted to 
the Office of Government Ethics lists 49 companies that qualify as 
``sources of compensation exceeding $5,000 in a year.''
    Answer 2a. I did not receive any compensation directly from a 
client. The information in the OGE report was provided by my law firm 
at the request of the NLRB ethics office, which prepared the report. I 
understand the information in the report includes fees paid by clients 
to the law firm that were attributable to work performed by me. I 
further understand that this was consistent with the interpretation of 
the question on the OGE form by the NLRB's ethics office.

    Question 2b. Are there additional clients for whom you worked for 
which you received compensation of less than $5,000 annually?
    Answer 2b. I have provided the financial information required by 
law. Please see my 278 filing.

    Question 2c. If so, please list these clients, and the total amount 
of compensation you have received from each of them.
    Answer 2c. I have provided the financial information required by 
law. Please see my 278 filing.

    Question 2d. According to OGE, Part 4 of your financial disclosure 
covers only ``the preceding 2 calendar years and the current calendar 
year up to the date of filing.'' Please provide a list of all sources 
of compensation for the past 5 years that are not listed in Part 4 of 
your financial disclosure.
    Answer 2d. I have provided the financial information required by 
law. Please see my 278 filing.

    Question 3a. If confirmed, do you believe that it is appropriate 
for you to rule on a case to which a company owned by the President who 
nominated you is a party?
    Answer 3a. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 3b.  If so, do you believe that such circumstances create 
a perceived, if not real, conflict of interest?
    Answer 3b. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 3c. If not, will you commit to recusing yourself from any 
such case?
    Answer 3c. If recusal questions arise with regard to any particular 
matter, I will request the advice of the Board's ethics office.

    Question 4. Please describe your view on the weight of NLRB 
precedent as the Board considers a case with relevant precedent.
    Answer 4. By tradition, the Board does not change precedent without 
the votes of three Board members. Otherwise, precedent has not been 
treated as binding. My view is that precedent should not be followed if 
it is in conflict with the NLRA as enacted by Congress. The Board's 
responsibility is to enforce that statute.

    Question 5a. Please describe what you believe to be the role of a 
member of the Board in accommodating oversight requests by Members of 
Congress.
    Answer 5a. As noted above, Board members should attempt to work 
together, and with the guidance and input of the Board's professional 
staff, to the fullest extent possible to respond to oversight requests 
received from Congress in an appropriate manner.

    Question 5b. Will you commit to responding in full to any requests 
from chairs or ranking members of relevant committees, or requests from 
Members of Congress on NLRB matters?
    Answer 5b. If confirmed, I will attempt to work together with other 
Board members and the Board's professional staff to the fullest extent 
possible to respond to oversight requests received from Congress in an 
appropriate manner.
                             senator kaine
    Question 1a. In hearing cases on unfair labor practices and union 
representation, the National Labor Relations Board (NLRB) must enforce 
the National Labor Relations Act in light of the prior decisions of the 
board and the present-day circumstances of the case at issue. While 
precedent is often a guiding force in such determinations, the board 
does occasionally overturn or clarify aspects of prior decisions. For 
example, in Browning-Ferris, the NLRB reversed a decades-old standard 
regarding when two or more businesses should be considered ``joint 
employers'' for the same set of employees, modifying the standard to 
include ``indirect control'' over the terms and conditions of 
employment or the capability for exerting such control. In discussing 
the rationale for this decision, the NLRB noted that the previous joint 
employer standard was anachronistic and needed to be updated to reflect 
new economic conditions and the increased prevalence of contingent 
employment relationships.
    In your opinion, what factors should be taken into consideration 
when deciding whether to uphold, modify, or reverse existing legal 
standards?
    Answer 1a. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 1b. How reactive should the interpretation of existing law 
be to emerging trends and changes in the workforce and the employer-
employee relationship?
    Answer 1b. If I am confirmed, I will do my best to objectively 
decide the issues that come before the Board after considering the 
facts of each case, the intent of Congress as expressed in the NLRA, 
the Supreme Court's precedent, the Board's precedent, the arguments of 
the parties, and the views of the other members of the Board.

    Question 2a. Do you feel that interpretations of the NLRA that 
could potentially increase the amount of collective bargaining in a 
business or industry through allowing for the unionization of subsets 
of employees (i.e., ``micro units'') within the larger employee pool or 
expanding the scope of the definition of an employer would make 
collective bargaining more or less effective for employers and 
employees?
    Answer 2a. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    Question 2b. What challenges could arise from more liberal 
interpretations of what constitutes an appropriate bargaining unit or 
an employer?
    Answer 2b. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    Question 2c. In your opinion, would such interpretations of the 
NLRA ultimately put employees in stronger or weaker bargaining 
positions?
    Answer 2c, It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    Question 2d. In your opinion, what effect, if any, would such 
interpretations of the NLRA have on franchises, staffing agencies, and 
the way that such entities approach business operations?
    Answer 2d. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    Question 3a. In Murphy Oil, the Fifth Circuit ruled that 
arbitration agreements containing class waivers are enforceable, 
directly contradicting the NLRB's prior decision to invalidate such 
agreements in D.R. Horton. In Epic Systems and Ernst & Young, the 
Seventh and Ninth Circuits interpreted this question differently and 
upheld the NLRB's position in D.R. Horton. The Supreme Court has agreed 
to hear all three of these cases and will review this issue in its 
2017-18 term.
    In your opinion, how far does the NLRA's protection of the right of 
employees to engage in ``concerted activity'' extend?
    Answer 3a. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    Question 3b. Could the right to engage in concerted activities be 
interpreted to create a substantive right to bring class or collective 
actions that trumps the terms of arbitration agreements?
    Answer 3b. It would be inappropriate for me to comment on this 
question. If I am confirmed, I will do my best to objectively decide 
the issues that come before the Board after considering the facts of 
each case, the intent of Congress as expressed in the statute as 
written, the Supreme Court's precedent, the Board's precedent, the 
arguments of the parties, and the views of the other members of the 
Board.

    [Whereupon, at 11:32 a.m., the hearing was adjourned.]

                                   [all]