[Senate Hearing 115-635]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-635

   DEPARTMENT OF LABOR AND NATIONAL LABOR RELATIONS BOARD NOMINATIONS

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

                                HEARING

                                OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                                   ON

 EXAMINING THE NOMINATIONS OF CHERYL MARIE STANTON, OF SOUTH CAROLINA, 
 TO BE ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, WHO WAS INTRODUCED 
   BY SENATOR SCOTT, AND DAVID G. ZATEZALO, OF WEST VIRGINIA, TO BE 
ASSISTANT SECRETARY FOR MINE SAFETY AND HEALTH, BOTH OF THE DEPARTMENT 
 OF LABOR, AND PETER B. ROBB, OF VERMONT, TO BE GENERAL COUNSEL OF THE 
                     NATIONAL LABOR RELATIONS BOARD

                               __________

                            OCTOBER 4, 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, Democratic Staff Director
             John Righter, Democratic Deputy Staff Director

                                  (ii)

  


                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                       WEDNESDAY, OCTOBER 4, 2017

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, Opening Statement.........................     1
Murray, Hon. Patty, Ranking Member, Committee on Health, 
  Education, Labor, and Pensions, Opening Statement..............     3
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.     5
Young, Hon. Todd, a U.S. Senator from the State of Indiana.......    13
Kaine, Hon. Tim, a U.S. Senator from the State of Virginia.......    15
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    17

                               Witnesses

Stanton, Cheryl, of Columbia, SC, nominated to be Wage and Hour 
  Division Administrator, Department of Labor....................     5
    Prepared statement...........................................     7
Zatezalo, David G., of Wheeling, WV, nominated to be Assistant 
  Secretary of Labor for Mine Safety and Health, Department of 
  Labor..........................................................     8
    Prepared statement...........................................     9
Robb, Peter, of Marlboro, VT, nominated to be General Counsel, 
  National Labor Relations Board.................................     9
    Prepared statement...........................................    11

                                 (iii)
  

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
  Letters of Support for Cheryl Stanton from:
    Thomas C. Alexander, Senator, Oconee and Pickens Counties....    24
    Kevin L. Bryant, State of South Carolina, Office of the 
      Lieutenant Governor, Columbia, SC..........................    24
    Sara S. Fawcett, President, United Way of the Midlands.......    25
    Labor and Employment Lawyers, New Jersey.....................    26
    Scott B. Sanders, Executive Director, National Association of 
      State Workforce Agencies, (NASWA)..........................    26
    James T. McLawhorn, Jr., President and Chief Executive 
      Officer, Columbia Urban League, Inc........................    27
    Patrick Michaels, Chief Executive Officer, Goodwill..........    28
    Eugene Scalia, Gibson Dunn & Crutcher, LLP...................    29
    Craig J. Currey, Colonel, U.S. Army Retired, Transitions 
      Homeless Center CEO........................................    29
    Matt Haller, Senior Vice President of Government Relations & 
      Public Affairs, International Franchise Association (IFA)..    31
    C. Matthew Keen, Managing Shareholder, Ogletree Deakins......    32
  Letter of Support for David G. Zatezalo from:
    Michael W. Johnson, President & CEO, National Stone, Sand, & 
      Gravel Association.........................................    33
  Letters of Support for Peter Robb from:
    Jason E. Todd, Vice President Independent Electrical 
      Contractors (IEC)..........................................    33
    Robert Cresanti, CFE, President and CEO, International 
      Franchise Association (IFA)................................    34
    John V. Callaci, Director, Collective Bargaining and 
      Organizing, United Nurses & Allied Professionals...........    35
  Response by Cheryl Stanton to questions from:
    Senator Alexander............................................    37
    Senator Murray...............................................    37
    Senator Casey, Jr............................................    45
    Senator Franken..............................................    46
    Senator Whitehouse...........................................    48
    Senator Warren...............................................    49
    Senator Kaine................................................    53
    Senator Hassan...............................................    53
  Response by David G. Zatezalo to questions from:
    Senator Murray...............................................    55
    Senator Burr.................................................    59
    Senator Casey, Jr............................................    59
    Senator Franken..............................................    61
    Senator Whitehouse...........................................    62
    Senator Warren...............................................    62
    Senator Kaine................................................    64
  Response by Peter Robb to questions from:
    Senator Murray...............................................    65
    Senator Whitehouse...........................................    70
    Senator Kaine................................................    70
    Senator Hassan...............................................    71



  

 
   DEPARTMENT OF LABOR AND NATIONAL LABOR RELATIONS BOARD NOMINATIONS

                              ----------                              


                       WEDNESDAY, OCTOBER 4, 2017

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:07 p.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, Chairman of the Committee, presiding.
    Present: Senators Alexander [presiding], Scott, Young, 
Murray, Casey, Jr., Bennet, Warren, Hassan, and Kaine.

                 Opening Statement of Senator Alexander

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    This afternoon, we're holding a confirmation hearing on 
Cheryl Stanton, nominated to be Wage and Hour Division 
Administrator at the Department of Labor; David Zatezalo, 
nominated to be Assistant Secretary of Labor for Mine Safety 
and Health, leading the Mine Safety and Health Administration 
at the Department of Labor; and Peter Robb, who has been 
nominated to be the General Counsel of the National Labor 
Relations Board.
    Senator Murray and I will each have an opening statement, 
then we'll introduce our nominees. After their testimony, 
Senators will each have an opportunity to ask the nominees 5 
minutes of questions.
    We have two votes beginning in a few minutes, so at about 
3:35, I'm going to recess the hearing for about 15 minutes so 
we can go over and vote at the end of the first vote and the 
beginning of the second one and then come back and resume the 
hearing. I think that's the only practical way to do it.
    Today, we're considering three nominees who are tasked with 
leading important agencies to protect working Americans. As 
Wage and Hour Division Administrator at the Department of 
Labor, Ms. Stanton will be responsible for enforcing the 
Federal laws that guarantee a minimum wage, overtime pay, and 
protect your job during family or medical leave, as well as 
child labor laws. The division is examining the time card or 
overtime rule, a provision put forward by the previous 
administration that would have more than doubled the salary 
threshold under which employees qualify for overtime pay.
    That rule went too high, too fast, and would have resulted 
in employers, non-profits, colleges, and others cutting 
workers' hours, limiting their benefits and flexibility, as 
well as costing college students more in tuition. A Federal 
court struck down the regulation. Secretary Acosta has already 
started the process to consider a more reasonable rule, and I 
hope Ms. Stanton will work with him and Congress on a more 
moderate approach.
    Ms. Stanton serves as the Executive Director for the South 
Carolina Department of Employment and Workforce. Senator Scott 
is here, and I'll ask him to introduce her when we introduce 
the witnesses in a few minutes. Ms. Stanton served as a law 
clerk to Hon. Samuel Alito, Jr. and received her J.D. from the 
Law School at the University of Chicago.
    President Trump announced his intent to nominate Ms. 
Stanton on September 2nd. She was nominated on September 5th. 
On September 15th, we received her Government Ethics paperwork. 
Based on those documents, the Office of Government Ethics said 
she is in compliance with applicable laws and regulations 
governing conflicts of interest. We received her HELP paperwork 
on September 20.
    As the Assistant Secretary of Labor for Mine Safety and 
Health, Mr. Zatezalo will be responsible for enforcing mine 
safety laws and improving the safety of the mining profession. 
He is uniquely qualified to lead the Mine Safety and Health 
Administration, having started as a union-member miner and 
working his way up to General Superintendent for Southern Ohio 
Coal Company and General Manager of AEP's Windsor Coal Company. 
He later rose to be Vice President of Operations of AEP's 
Appalachian Mining Operations and President and CEO of Rhino 
Resource Partners. He is a Mining Engineering graduate from 
West Virginia University.
    The President announced his intent to nominate Mr. Zatezalo 
on September 2nd. He was nominated on September 5th. We 
received his paperwork on the 8th. On the 11th, we received 
Government Ethics paperwork, all in compliance with laws and 
regulations governing conflicts of interest.
    Finally, as the National Labor Relations Board General 
Counsel, Mr. Robb will be responsible for helping workers who 
feel their right to organize collectively has been violated or 
assisting employers when some of their employees want to form a 
union. Mr. Robb should help restore the Board to the role of 
neutral umpire. While Board partisanship did not start under 
the previous administration, it became far worse. When the 
Board is too partisan, it creates instability in our Nation's 
workplaces and creates confusion for employers, employees, and 
unions.
    For example, a 2015 NLRB decision dramatically expanded the 
so-called joint-employer liability, which means it's more 
likely a company will own and operate its stores, taking away 
the chance for a worker to own and run his or her own 
franchise. This was the biggest attack on the opportunity for 
small businessmen and women 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.
    Mr. Robb currently works as the director of labor and 
employment at a law firm. He served as Chief Counsel to NLRB 
Member Robert Hunter. He was a regional field attorney for the 
NLRB in Baltimore. He earned his degrees from Georgetown and 
the University of Maryland.
    He was nominated on September 25th. We received his 
paperwork on the 22nd. We received his Ethics paperwork on the 
27th, and the OGE said he is in compliance with applicable laws 
and regulations governing conflicts of interest.
    I look forward to your testimony and welcome you and your 
family members.
    Senator Murray.

                  Opening Statement of Senator Murray

    Senator Murray. Thank you, Chairman Alexander.
    Before I begin, I do want to say I'm disappointed we're 
holding this hearing, because there are a lot of conflicts 
occurring this afternoon, including the votes. All three of 
these nominees are going to be in critical roles that impact 
our workers' rights and safety and economic security, and 
working families really deserve to hear if these nominees will 
stand up and fight for them. So it's a challenging afternoon. I 
do want to thank our three nominees, Mr. Robb, Ms. Stanton, and 
Mr. Zatezalo, and all of your families for being here today as 
well.
    Since day one, President Trump has rolled back worker 
protections and made it harder for families to become 
financially secure. It's clear that President Trump is 
committed to helping corporations and billionaires get ahead at 
the expense of working families and the middle class, from 
where I see it. So I look forward to hearing from all of you 
today on your plan to stand up for workers and working families 
in your roles at the Department of Labor and NLRB.
    Mr. Robb, 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 together for fair wages and benefits and for safe 
working conditions. But over the past few decades, we've seen a 
decline in workers' bargaining power and in union membership, 
and with it we have seen a decline in the middle class. While 
the billionaires and corporations are getting richer, 
unfortunately, the reality today is that most workers no longer 
have a voice in advocating for their wages and benefits.
    Without collective bargaining, companies unilaterally 
dictate these terms to workers who can take it or leave it. So 
I think now more than ever, it's important that the NLRB is 
committed to standing up for workers and their right to 
collectively bargain.
    Mr. Robb, you've spent most of your career as a corporate 
lawyer, representing big business and fighting against workers. 
So I hope you're prepared today to talk about how, as General 
Counsel at the NLRB, you would use your position to take on 
cases where workers are being treated unfairly and to work to 
maintain the NLRB's role to proactively promote collective 
bargaining.
    Ms. Stanton, the Wage and Hour Division at the Department 
of Labor plays a very critical role in making sure workers are 
being treated fairly and are paid what they earned, including 
enforcing the Federal minimum wage and overtime pay. As a 
businessman, President Trump has an abysmal record on those 
types of issues. His businesses have actually been involved in 
hundreds of legal actions for failing to pay workers what 
they're owed, including failing to pay overtime and the minimum 
wage. Those issues impact many more workers than those just at 
Trump businesses.
    Wage theft is actually an epidemic today that devastates 
workers across the country. It is estimated that employers 
steal approximately $15 billion from their employees each year, 
and, sadly, immigrants and low-wage workers are the most likely 
to be taken advantage of.
    Ms. Stanton, as I'm sure you're aware, the Trump 
administration is currently deciding whether to defend the 
overtime rule in court. This rule would simply update existing 
standards and make sure over 13 million workers are being paid 
what they deserve. Unfortunately, President Trump and his 
administration have refused to give millions of workers peace 
of mind by committing to defend and uphold that rule.
    We need a Wage and Hour Division Administrator who will 
fight for workers, and I look forward to hearing from you, Ms. 
Stanton, on how you will stand up to this administration to 
combat wage theft and to defend the overtime rule.
    Mr. Zatezalo--did I say that right?
    Mr. Zatezalo. Yes, ma'am.
    Senator Murray. I'm sure you recall President Trump making 
promise after promise to miners during his campaign. He 
promised he would bring back good coal jobs to struggling 
communities. The position that you have been nominated for, the 
Assistant Secretary of Labor for Mine Safety and Health, is 
responsible for promoting health and safety conditions in mines 
across the country.
    As a mining executive, I'm concerned your company had 
historic safety violations, and your company was sued by the 
Equal Employment Opportunity Commission for allowing 
discrimination, and I quote, ``To continue unchecked in the 
workplace and for punishing the employee being targeted rather 
than those doing the harassing.'' That's really troubling to me 
and I fear is another example of a nominee of a fox to guard 
the hen house. So I want to hear from you about that, and I 
want to hear from you on how you're going to plan to put 
workers' health and safety, which is so critical in our mining 
operations, at the forefront.
    I look forward to all three of your testimonies and 
responses on many of these issues, because these are important 
positions all of you hold that people in this country, who may 
not know who you are, or what that job is, are counting on you.
    Thank you very much.
    The Chairman. Thank you, Senator Murray.
    For the Senators who just arrived, I think what I will--
what I'm planning to do is to recess at about 3:35 so we can go 
vote, and maybe vote at the end of the first vote and the 
beginning of the second vote and come back in about 15 minutes 
and resume.
    Each nominee will have up to 5 minutes to give his or her 
testimony. I'm pleased to welcome our three nominees today. I 
thank you for offering to serve our country.
    Cheryl Stanton is the first nominee, and Senator Scott, 
would you like to say a few words about her.

                       Statement of Senator Scott

    Senator Scott. Yes, sir. Thank you, Mr. Chairman.
    It is my pleasure to introduce to the Committee Ms. Cheryl 
Stanton, who has been nominated to serve as the Administrator 
of the Wage and Hour Division of the Department of Labor. Since 
her appointment as Executive Director of the South Carolina 
Department of Employment and Workforce in 2013, Ms. Stanton has 
excelled as a dynamic leader and a true public servant, placing 
the interest of workers, employers, and communities at the 
center of every project.
    Partnering with other state agencies and outside 
organizations, she has implemented numerous trailblazing 
initiatives aimed at boosting economic opportunities for the 
underserved. From the South Carolina Talent Pipeline Project 
and Data Base Talent Development System to the Second Chance 
Program, a transitional job training program for incarcerated 
South Carolinians, Ms. Stanton's record is one of both 
innovation and compassion.
    Her career includes time as a labor and employment attorney 
in both the public and private sectors. In fact, this 
nomination marks her return to DC, it must be about public 
service if you're willing to leave South Carolina. No one does 
that voluntarily. She previously served as Associate White 
House Counsel during the Bush administration, acting as a chief 
liaison between the White House and the Department of Labor.
    With an extensive background in labor issues, agency 
leadership, and workforce services, Cheryl is truly a strongly 
qualified person for this position.
    Thank you, and I look forward to your testimony.
    The Chairman. Thank you, Senator Scott.
    David Zatezalo is joined by his wife Jo Lynn today, 
welcome. He has a wealth of experience in the mining industry, 
as I mentioned, working in it from 1974 until his retirement in 
2014. During that time, he gained experience at every level 
within the industry and even spent 1 year as a general mine 
manager in Australia.
    Peter Robb is in the audience, as is his wife, Kate, and 
his sons, Michael and Sean, and his daughter, Kelly. Welcome to 
all of you. Mr. Robb worked at the NLRB early in his career and 
has been practicing labor law in the private sector since 1985.
    Welcome to all of our witnesses. If you would take about 5 
minutes with your testimony, that will leave us time for 
questions.
    Ms. Stanton.

                  STATEMENT OF CHERYL STANTON

    Ms. Stanton. Thank you, Chairman Alexander, Ranking Member 
Murray, and other Members of the Committee, for having us here 
today. I also want to say thank you to Senator Scott for those 
kind words and for your great leadership and partnership on 
South Carolina Workforce Development issues. So thank you.
    It is with great honor that I speak with you about my 
nomination to the Wage and Hour Division of the Department of 
Labor. Many have asked why I'm interested in the Wage and Hour 
Division and why now. Well, after spending the last four-plus 
years helping people find jobs, I want to help ensure that they 
are protected in those jobs. My current position has shown me 
firsthand the dignity of work and what it means for families to 
be able to earn money to put food on the table. If confirmed, I 
look forward to leveraging the tools that the Wage and Hour 
Division has to allow families to provide for themselves.
    The workforce was often a topic of conversation at my house 
when I was growing up. My father had worked his way through 
college but later became a labor and employment lawyer. We 
talked at the dinner table about the relationships between 
employers and their workers, that a good company is one that is 
fair to employees, and why new employment laws were passed. 
Despite dad's best efforts to the contrary--and they were 
strong--I also grew up to become a labor and employment lawyer.
    In my time as a labor and employment attorney, I spent 
about two-thirds of the time on litigation. The remainder of my 
practice involved counseling employers on whether their 
processes or intended actions complied with the law and, if 
not, how they could become compliant without disrupting their 
business model.
    In 2006, I was given the opportunity to work in the White 
House Counsel's Office. It was my first opportunity to serve 
and to impact labor and employment policy. I especially enjoyed 
looking at proposed legislation or regulations with a view to 
how the proposals would actually impact workers and employers 
in the workplace based on my experience counseling employers in 
the private sector.
    I went back to private practice after my time in 
Washington, but after a few years, I did have the itch to serve 
again. In addition, my parents, Pat and Kathy Stanton, who are 
sitting behind me, had retired to the great State of South 
Carolina, and my sister and her family, who, unfortunately, 
could not be here because of the children's school, had moved 
to North Carolina.
    I was given an opportunity to work with then Governor Nikki 
Haley as her Executive Director for the South Carolina 
Department of Employment and Workforce, and I took it with 
excitement. When I started in the agency, we really were 
focused on the unemployment insurance side of the house. South 
Carolina, like many other states, had gone into debt to pay the 
massive benefits that had been paid during the recession, and 
so we focused on technology upgrades, business process 
improvements, and employee training to improve processes, get 
the loan repaid, and make sure--in fact, we repaid the loan 
early, saving businesses millions of dollars in interest. We 
also were able to cut unemployment insurance taxes for three 
consecutive years, even as we continued to work to build the 
reserves in the trust fund for the next time we have a 
recession.
    While much of the external focus when we started was on the 
unemployment insurance side of the agency, we at the agency 
were doing more and more to ensure people who wanted jobs in 
South Carolina were able to find them. We began looking at 
better processes for our SC Works Centers, which South Carolina 
has branded their American Job Centers, and we increased 
training for frontline staff who work with job seekers.
    We strengthened our partnership with other agencies and 
entities that provide workforce development and training 
services to individuals and businesses, and as the economy got 
better, we started prioritizing our work on what we call 
priority populations, those individuals with the greatest 
barriers to employment, such as veterans, the disabled, out of 
school youth, homeless, and ex-offenders. In fact, the Second 
Chance Initiative that the Senator identified is a partnership 
with the South Carolina Department of Corrections.
    The two agencies literally created an American Job Center 
behind the wire at one of our state prisons. One of our Wagner-
Peyser staff worked behind the wire full time with inmates who 
were due to be released in the next 60 to 90 days. She helps 
them relearn computer skills, work on their resumes, practice 
their interview skills, and search for jobs. Meanwhile, outside 
the wire, DEW's business services reps ask every employer they 
meet whether they are willing to be a Second Chance Employer 
and that is to hire a veteran--excuse me, an ex-offender. To 
date, South Carolina has seen more than 70 percent of those 
released find work.
    If given the opportunity, I welcome the chance to work with 
you, your staff, the very knowledgeable and professional career 
staff at the Wage and Hour Division, and the public at large to 
administer the important laws entrusted to the Division.
    Thank you again, Chairman Alexander and Ranking Member 
Murray. I look forward to answering the questions you and the 
Committee have.
    [The prepared statement of Ms. Stanton follows:]
                  Prepared Statement of Cheryl Stanton
    Chairman Alexander, Ranking Member Murray and other Members of the 
Committee, thank you for having us here today.
    It is with great honor that I speak with you about my nomination to 
the Wage and Hour Administration at the Department of Labor.
    Many have asked me why I am interested in the Wage and Hour 
Division, and why now. Well, after spending the last four plus years 
helping people find jobs, I want to help ensure they are protected in 
those jobs. My current position has shown me first hand the dignity of 
work, and what it means for families to be able to earn money to put 
food on the table. If confirmed, I look forward to leveraging the tools 
that the Wage and Hour Division has to allow families to provide for 
themselves.
    The workplace was often a topic of conversation in my house when I 
was growing up. My dad worked his way through college, and later went 
on to become a labor and employment lawyer. We talked at the dinner 
table about the relationships between employers and their workers, that 
a good company is one that is fair to employees, and why new employment 
laws were passed. Despite Dad's best efforts to the contrary, I also 
grew up to become a labor and employment lawyer.
    In my time as a labor and employment attorney, I spent about two-
thirds of my time on litigation. The remainder of my practice involved 
counseling employers on whether their processes or intended actions 
complied with the law, and if not, how they could become compliant 
without disrupting their business model.
    In 2006, I was given the opportunity to work in the White House 
Counsel's Office. It was my first opportunity to serve, and to impact 
labor and employment policy. I especially enjoyed looking at proposed 
legislation or regulations with a view to how the proposals would 
actually impact workers and employers in the workplace based on my 
experience with counseling employers in the private sector.
    I went back to private practice after my time in Washington, but 
after a few years I had the itch to serve again. In addition, my 
parents had retired to South Carolina and my sister had moved to North 
Carolina with her family. I was given an opportunity to work for 
Governor Nikki Haley as her Executive Director for the South Carolina 
Department of Employment and Workforce, and I took it with excitement.
    When I started in the agency we were focused on the unemployment 
insurance side of the house--South Carolina like many states had gone 
into debt to pay the massive unemployment insurance benefits needed 
during the recession. We focused on technology upgrades, business 
process improvements and employee training to get the loan repaid--and 
repaid the loan early, saving businesses millions of dollars in 
interest. We also cut unemployment insurance taxes for three 
consecutive years, even as we worked to rebuild the reserves in the 
trust fund.
    While much of the external focus was on the unemployment insurance 
side of the agency, we at the agency began doing more and more to 
ensure people who wanted jobs in South Carolina were able to find them. 
We again looked at better processes for our SC Works Centers (which is 
what SC has branded our American Job Centers), and we increased 
training for front line staff who work with job seekers. We 
strengthened our partnerships with other agencies and entities that 
provide workforce development and training services to individuals and 
businesses. As the economy got better we started prioritizing our work 
on what we call ``priority populations'' those individuals with the 
greatest barriers to employment such as veterans, the disabled, out of 
school youth, homeless and ex-offenders.
    One program we started--the Second Chance Initiative--is a 
partnership with the South Carolina Department of Corrections. The two 
agencies literally created an American Jobs Center behind the wire at 
one of South Carolina's state prisons. One of the Department of 
Employment and Workforce's (DEW) Wagner-Peyser staff members works full 
time in the facility. Inmates who are due to be released in the next 
60-90 days relearn computer skills, work on their resumes, practice 
their interview skills and search for jobs. Meanwhile, outside the 
wire, DEW's business services representatives ask every employer they 
meet whether the business is willing to be a ``Second Chance 
Employer''--i.e. whether they will hire ex-offenders. DEW then attempts 
to match ex-offenders as they are being released to those on the Second 
Chance list. To date, SC has seen more than 70 percent of those 
released find work.
    If given the opportunity, I welcome the chance to work with you, 
your staff, the very knowledgeable and professional career staff at the 
Wage and Hour Division, and the public at large to administer the 
important laws entrusted to the Division. I believe that together we 
can ensure the laws protecting American workers are properly enforced.
    Thank you again, Chairman Alexander and Ranking Member Murray. I 
look forward to answering any questions you and the Committee Members 
have.

                                 ______
                                 
    The Chairman. Thank you, Ms. Stanton.
    Mr. Zatezalo.

                 STATEMENT OF DAVID G. ZATEZALO

    Mr. Zatezalo. Thank you, Mr. Chairman.
    Chairman Alexander, Ranking Member Murray, and Members of 
the Committee, thank you for the opportunity to appear before 
you this afternoon. I'd like to thank you and your staffs for 
the manifold courtesies shown to me as I've prepared for this 
hearing.
    Before I begin, I'd like to recognize my wonderful wife, Jo 
Lynn, who is with me here today, and thank her for 40 years of 
help, support, patience, supervision, and three outstanding 
children we've been blessed with. I would also like to express 
my thanks to my parents, who are no longer with us, my extended 
family, and the many great people I have been privileged to 
work with during my 41 years in the mining industry. Their 
friendship, trust, and allowance of my leadership has been more 
important to me than they will likely ever realize.
    It is a great honor for me to be nominated by President 
Trump and supported by Secretary Acosta, and, if confirmed, I 
will support and advance their agenda for the health and safety 
of America's miners. I began my mining career as an underground 
general laborer at the Blacksville No. 2 mine, worked my way 
through West Virginia University to become a mining engineer, 
and later was able to become a registered professional 
engineer.
    I worked as a certified foreman in nearly all areas of 
mining, and later, after completing a Master's in Business, I 
moved into senior management roles before retiring in 2014 as 
chairman of Rhino Resources. During my working career, I have 
managed and operated 39 different mines in both the United 
States and Australia.
    The mining industry in the United States today is safer and 
healthier than at any time in our Nation's history. However, 
further progress needs to be made. I look forward to working 
hard to make that a reality. Though I have not been involved in 
government service previously, I'm confident that the many good 
people at the Mine Safety and Health Administration, Congress, 
and other state and Federal groups will bear me the courtesy of 
working to further enhance and progress more consistent 
enforcement across MSHA districts, adopt technologies which 
promote safety, and safer mining and health behaviors.
    Thank you for your consideration, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Zatezalo follows:]
                Prepared Statement of David G. Zatezalo
    Chairman Alexander, Ranking Member Murray and Members of the 
Committee, thank you for the opportunity to appear before you this 
afternoon. I want to thank you and your staff for the manifold 
courtesies shown to me as I have prepared for this hearing.
    Before I begin I would like to recognize my wonderful wife Jo Lynn 
who is with me today for her help, support, patience, supervision and 
the three outstanding children we have been blessed with.
    I would also like to express thanks to my parents, who are no 
longer with us, and extended family, and the many great people I have 
been privileged to work with during my forty-one years in the mining 
industry. Their friendship, trust, and allowance of my leadership has 
been more important to me than they will likely ever realize.
    It is a great honor for me to be nominated by President Trump and 
supported by Secretary Acosta, and if confirmed, I will support and 
advance their agenda for the health and safety of America's miners.
    I began my mining career as an underground general laborer at the 
Blacksville number 2 mine, worked my way through school to become a 
mining engineer and later was able to become a registered Professional 
Engineer. I worked as a certified foreman in nearly all areas of mining 
and later, after completing an MBA, moved into senior management roles 
before retiring in 2014 as Chairman of Rhino Resources. During my 
working career, I have managed and operated thirty-nine mines, in both 
the United States and Australia.
    The mining industry in the United States is safer and healthier 
that at any time in our history; however, further progress needs to be 
made. I look forward to working hard to make this a reality.
    Though I have not been involved in government service previously, I 
am confident that the many good people at the Mine Safety and Health 
Administration, Congress, and other state and Federal groups will bear 
me the courtesy of working to further enhance and progress more 
consistent enforcement across MSHA districts, adopt technologies which 
promote safety, and safer mining and health behaviors.
    Thank you for your consideration and I look forward to answering 
your questions.
                                 ______
                                 

    The Chairman. Thank you, Mr. Zatezalo.
    Mr. Robb, welcome.

                    STATEMENT OF PETER ROBB

    Mr. Robb. Chairman Alexander, Ranking Member Murray, and 
Members of the Committee, I come before you today as the 
nominee for General Counsel of the National Labor Relations 
Board. As always, my wife, Kate, is here with me, as are my 
sons, Mike and Sean. My son James and lovely daughter, Kelley, 
unfortunately could not be here due to their schedules.
    I will try to summarize my life and career, which is set 
forth in more detail in the statement previously submitted. 
Upon returning from the Pacific theater in World War II, my 
father packed up his small family and moved from New York City 
to Meriden, Connecticut. Meriden was very much a working 
person's town in tune with America's heartbeat. So my friends' 
parents were machinists, tool and die makers, farmers, 
laborers, as well as some professionals.
    My pop was a physician. I often rode with him as he made 
house calls and marveled at how people paid what they could in 
jars of pennies and baked goods, including fudge, which I 
especially liked. Later, I would see him sleep at the hospital 
next to the critically ill. My gracious mom did what moms do, 
taught me to care and love others. Thus, treating all people 
with respect and compassion was ingrained in me from the 
outset.
    I graduated from Georgetown University here in Washington, 
DC with a degree in economics. I then drove a truck for 3 
years. Two weeks after our first child arrived a little late, I 
entered the University of Maryland School of Law. There, my 
economics background, desire to work directly with people, and 
love of litigation found a home in labor law.
    Because the NLRB was not hiring, I worked for a year with 
the Maryland Office on Aging, where I represented the elderly 
in a variety of actions and advised the Director on Aging. Then 
I was hired as an NLRB field attorney in Region 5. I did all 
the functions that field attorneys and agents do. I 
investigated scores of unfair labor practice charges, conducted 
representation elections, served as a Hearing Officer, and 
prosecuted unfair labor practice cases. The vast majority 
involved charges brought by unions and employees against 
employers.
    My public service continued at the fledgling Federal Labor 
Relations Authority in its Washington regional office. There, I 
trained trial attorneys and helped adapt the NLRB forms and 
procedures to the new agency, which helped me gain a detailed 
understanding of the inner workings of the NLRB's regions and a 
keen appreciation of the critical role that staff play within 
the organization. I also litigated about 40 unfair labor 
practice cases, almost all of which were against agency 
employers.
    Well versed in NLRB procedures and field operations, I 
moved back to the NLRB as Deputy and then Chief Counsel to Bob 
Hunter. I learned the nuances of the Act as well as the inner 
workings of the Board's headquarters operation and budget. At 
the end of Member Hunter's term, we went to Proskauer Rose, a 
large private law firm that was noted for its expertise in 
labor law, where I honed my negotiation and settlement skills.
    After a decade at Proskauer, I left to fulfill a dream of 
returning to New England, this time to the emerald mountains of 
Vermont and the law firm of Downs Rachlin Martin. I was 
fortunate enough to continue with national clients, providing 
advice and representation with respect to all aspects of labor 
law, and served as deputy managing partner just as the firm was 
facing the effects of the great recession. I received an in-
depth education in law firm administration, economics, and best 
practices.
    Over the years, I learned firsthand about the pressures 
that drive management: maintaining profitability, acquiring new 
technology, satisfying stockholders, recruiting and retaining 
employees, as well as dealing with the myriad and oft-changing 
laws and regulations that apply to the workplace. My union 
counterparts educated me on the concerns of labor organizations 
and their members: improving wages and benefits, job retention, 
addressing work conditions, as well as internal union issues.
    After all these years of private practice and living in 
beautiful Vermont, I've been asked why I would want to be 
General Counsel for the National Labor Relations Board, and 
that is a fair question, which I've asked myself, especially 
lately. I've always believed in the core values expressed in 
the Act, which can be paraphrased as protecting the rights of 
employees to engage in union or other protected concerted 
activity with respect to wages, hours, and working conditions, 
as well as the rights of employees to refrain from such 
activity, and once employees have freely chosen the labor 
organization to represent them, the Act promotes collective 
bargaining. I believe these principles are part of the 
foundation of our successful economic system.
    I've spent most of my life studying labor law and the 
National Labor Relations Board. I've learned the lessons, and 
I've acquired the experience that will enable me to maintain 
and improve the agency. In that regard, I will strive for an 
effective and efficient administration in all aspects.
    Therefore, Honorable Senators, I respectfully ask your 
consent to be the General Counsel of the National Labor 
Relations Board.
    Thank you.
    [The prepared statement of Mr. Robb follows:]
                    Prepared Statement of Peter Robb
    Chairman Alexander, Ranking Member Murray and Members of the U.S. 
Senate Committee on Health, Education, Labor, and Pensions, I come 
before you today, as a nominee for General Counsel of the National 
Labor Relations Board. As always, my wife Kate is here with me. I am 
very pleased that my sons Mike, James and Sean and my daughter Kelley 
were able to take time off from their busy schedules and families to be 
here with me today.
    I am very grateful to the President for nominating me, and each of 
you for taking the time to consider my nomination. I am honored and 
humbled.
    First, I would like to tell you a little about me, which will help 
you understand how I came to be here. In so doing, I will honor some of 
those people who have meant so much to me in fashioning my career and 
my life.
    Upon returning from the Pacific Theatre in World War II, my father 
packed up his small family and moved from New York City to Meriden, 
Connecticut. Meriden was then called the Silver City because it 
produced much of the country's silverware. Meriden also was very much a 
working person's town--in tune with America's heartbeat. So my friends' 
parents were machinists, tool and die makers, farmers, laborers as well 
as some professionals. My Pop was a physician--a urologist--or, as he 
described himself--a plumber. I often rode with him as he made house 
calls and marveled at how people paid what they could in jars of 
pennies and baked goods, including fudge, which I especially liked. 
Later, I would see him sleep at the Hospital, next to the critically 
ill. My gracious Mom did what moms do--taught me to care, and love 
others. Thus, treating all people with respect and compassion was 
ingrained in me from the outset.
    I attended Fairfield College Preparatory School, where the Jesuits 
gave me first-hand lessons in discipline--self-discipline and 
otherwise. Out of necessity, I developed a keen sense of the importance 
of the rules of law. I was heavily involved in playing sports. Prep 
also instilled in all of us a keen sense of teamwork. Indeed, it was 
evident at our 50th reunion that we remained a Band of Brothers. The 
deep respect for the rule of law, including enforcement of those rules, 
and working together positively have never left me.
    I went on to Georgetown University, where I took as many philosophy 
and theology courses as I could. In between, I studied economics and 
received honors for my presentation in my oral comprehensive 
examination, which I found just as daunting as appearing before you 
here today. The marriage of philosophy and economics taught me how 
conflicts, and sometimes unpredictable human factors, influence the 
choices people make. Therefore, when giving advice and making 
decisions, I have always tried to understand how others feel and take 
those feelings into account.
    Along the way, I had many opportunities to apply these principles. 
I have worked as a hospital porter and orderly, construction laborer, 
highway sign maker, welder, forklift operator, medic at Army hospitals, 
and a truck driver. Throughout, I tried to apply my Depression-era 
parents--philosophy of working hard and harder. So, after college, I 
drove a truck, delivering barricades and lights for 60 hours a week for 
3 years--outdoors, staying in shape by repeatedly lifting metal 
barricades, getting paid by the hour and saving some money.
    The dreams of law school intervened. Two weeks after our first 
child arrived--a little late--I entered the University of Maryland 
School of Law. Our classes were very small, often less than 15; and the 
Socratic method was vigorously applied. It was in those small classes 
that I learned how much I did not know; how to think and how to write. 
Those developing skills were applied with a keen sense of representing 
clients ethically and with total commitment. In my final year, I 
experienced two epiphanies. The first was in the Juvenile Law Clinic--a 
full-semester clinical law program where I represented a 13-year old 
accused of murder. The issue was whether the child should be kept in 
the juvenile system for rehabilitation or tried as an adult where he 
would face the death penalty. Our team literally worked day and night 
for months as my law school partner and I prepared to present the case. 
We succeeded. Our client would get a chance at rehabilitation. That 
case, which I have been told is still cited in child waiver litigation, 
impressed on me the way the law and lawyers can help people. It also 
raised in me a keen desire to be a litigator. As much as I grew in the 
law, I did not find a particular focus until I took labor law in my 
final semester. Suddenly, my economic background, desire to work 
directly with people and love of litigation found a home. I also 
discovered how best to proceed. I would start working for the National 
Labor Relations Board--public service and excellent training.
    Unfortunately, the Federal Government was in a hiring freeze that 
year, so I took a job as an attorney for the Maryland Office on Aging 
where I represented the elderly and advised the Director on Aging. I 
testified before the Maryland legislature on a variety of issues 
including a new law creating guardianship for the elderly which I had 
drafted. I even had my own television show where I educated the elderly 
on social security, Medicare and other issues early Sunday mornings 
between the cartoons. I also called the NLRB Regional Attorney often.
    Finally giving in to my relentless calls and with the hiring freeze 
lifted, the Regional Attorney hired me as a Field Attorney for the NLRB 
in Region 5 about a year later. I quickly tried my three mandatory 
training cases, attended trial training and was approved to conduct 
trials on my own. All of my trials were against employers and based on 
charges filed by unions or employees. I did virtually all of the 
functions that field attorneys and agents do. I conducted 
representation elections, served as a Hearing Officer, and even took a 
case into Federal district court to enforce a subpoena. I also 
investigated scores of unfair labor practice charges, with the vast 
majority being against employers. I became proficient at quickly and 
thoroughly investigating charges and settling most, which earned me a 
Sustained Superior Performance Award early in my career.
    My public service continued at the fledgling Federal Labor 
Relations Authority in its Washington Regional Office. There, I trained 
trial attorneys and helped adapt the NLRB forms and procedures to the 
new agency, which helped me gain a detailed understanding of the inner 
workings of the NLRB's regions and a keen appreciation for the critical 
role that staff play within the organization. During my FLRA tenure, I 
also litigated about 40 unfair labor practice cases, almost all of 
which were against agency employers.
    Now well versed in NLRB procedures as well as NLRB and FLRA field 
operations, I moved back to the NLRB as Chief Counsel to Robert P. 
Hunter, who had previously served as Counsel to Senator Hatch as well 
as Republican Counsel to the Senate Labor Committee. I learned the 
nuances of the NLRA as well as the inner workings of the NLRB's 
headquarters operation. At the end of Member Hunter's term, we went to 
Proskauer Rose--a large private law firm that was noted for its 
expertise in labor law. I was lucky enough to have two of the most 
respected labor lawyers, Saul Kramer and Ed Silver (often called the 
Prince of New York's labor law community), take me under their wings. 
From them, I honed my negotiation and settlement skills. I was also 
involved in complex NLRA litigation and advice issues for many of the 
most prominent employers in the world.
    After a decade at Proskauer, I left to fulfill a dream of returning 
to New England--this time, to the emerald mountains of Vermont and the 
law firm of Downs Rachlin Martin. I was fortunate enough to continue 
with national clients in providing advice and representation with 
respect to all aspects of labor law. I also helped develop their Labor 
and Employment practice group, which I chaired for many years. I was 
selected as Deputy Managing Partner just as the firm was facing the 
effects of the Great Recession. I received an in-depth education in law 
firm administration, economics and best practices--indeed, we studied 
the practices of many law firms, large and small, including ways in 
which to motivate and retain attorneys and staff. This refined my 
administrative experience and put me in a leadership position for a 
large group of attorneys and staff. Nonetheless, I continued to 
maintain virtually a full load of representation of my clients, mostly 
in the labor law area dealing with collective bargaining.
    Over the years I gained extensive knowledge in negotiation and the 
resolution of labor disputes. In the private practice of labor law, 
attorneys rarely represent management and unions a practice with which 
I believe this Committee is familiar. I represented management 
primarily in labor cases. I learned first-hand about the pressures that 
drive management? maintaining profitability, acquiring new technology, 
satisfying stockholders, and recruiting and retaining employees as well 
as dealing with the myriad and oft-changing laws and regulations that 
apply to the workplace. My union counterparts presented the concerns of 
labor organizations and their members improving wages and benefits, and 
addressing working conditions as well as dealing with internal union 
issues. I have learned that consideration and appreciation of all these 
factors is essential to negotiating and administering collective-
bargaining agreements successfully. Recently, I was amused to see 
comments about the lack of published decisions where I was representing 
a party. This really is not an accident. My focus has always been to 
resolve labor disputes and reach collective-bargaining agreements. I 
have been successful in both.
    Now, after all these years in private practice and living in 
beautiful Vermont, I have been asked why I would want to be General 
Counsel of the National Labor Relations Board. That is a fair question, 
which I have asked myself--especially lately. I've always believed in 
the core values expressed in the National Labor Relations Act, which 
can be paraphrased as protecting the rights of employees to engage in 
union or other protected, concerted activity with respect to wages, 
hours and working conditions, as well as the rights of employees to 
refrain from such activities. Then, once employees have freely chosen a 
labor organization to represent them, the Act promotes collective 
bargaining. I believe these principles are part of the foundation of 
our successful economic system. I've spent most of my lifetime studying 
labor law and the National Labor Relations Board. I have learned the 
lessons. I have acquired the experience that will enable me to maintain 
and improve the agency. In that regard, I will strive for an effective 
and efficient administration in all aspects.
    Therefore, Honorable Senators, I respectfully ask your consent to 
be the General Counsel of the National Labor Relations Board. Thank 
you.
                                 ______
                                 
    The Chairman. Thank you, Mr. Robb.
    I'll begin--after conferring with Senator Murray, I'm going 
to begin questioning with Senator Young. Then I'll recess for 
about 15 minutes, and we'll go vote and then come back and 
resume with Senator Murray's questioning, if she's back.
    Senator Young.

                       Statement of Senator Young

    Senator Young. Well, thank you for the courtesy, Mr. 
Chairman.
    I want to thank all our nominees for your interest in 
serving our country.
    Mr. Zatezalo, I'd like to ask you a series of questions, 
because the mining industry in the State of Indiana is really 
important to our economy. We have a diverse presence of that 
industry in our state. The Small Mines Office, which you're 
likely familiar with, was created back in 2003, and the purpose 
of this office was to provide technical assistance and 
education and counsel to smaller operators, and by almost all 
accounts, this office worked. It really did a good job.
    According to MSHA's numbers, small mines that utilize the 
supports of this Small Mines Office saw fatalities reduced by 
86 percent, 86 percent, from the previous 10-year rate after 
they consulted with this office after the office was created. 
In contrast, those small mine operators that did not utilize 
the services of this office only saw a fatality rate reduction 
of 32 percent. So it seems like a fair benchmark of success 
from this Senator's viewpoint.
    In 2014, the Small Mines Office was absorbed into a 
different division, rendering feedback less available to our 
small mine operators.
    In your opinion sir, do you believe the Small Mines Office 
was, in fact, effective, as it seems to be by the numbers, in 
promoting and increasing utilization for safety measures in 
small mines?
    Mr. Zatezalo. Yes sir, it certainly sounds as if it's been 
effective. I don't have any personal experience with it. It was 
my understanding that it had been rolled into the education 
section of MSHA. Why it seems to have disappeared within the 
education sector is something I'd be happy to look into, if 
confirmed. It's a good point that our first priority is 
preventing people from getting hurt and improving the 
compliance regime across the board. Small operators are 
typically more vulnerable because they don't usually have the 
staff to stay on top of these things as well.
    Senator Young. Right. So you'll make it a priority to make 
sure that technical assistance, educational assistance is 
available to these small operators in a way that they're likely 
to utilize?
    Mr. Zatezalo. I certainly will.
    Senator Young. All right. Thank you. Do you foresee any 
barriers as you step into this position in providing customized 
assistance, whether it's of the technical, the educational, or 
any other nature, to our smaller operators?
    Mr. Zatezalo. The only barriers that I can imagine sir, 
would be the budget constraints within MSHA. I'm not familiar 
enough to say that there is ample money for all that, but if 
there is, we will certainly do that, because compliance, 
compliance assistance, and reduction of accidents is what MSHA 
is all about.
    Senator Young. If there are those resource constraints 
after further investigation, I hope you'll let me know and the 
Committee know, sir.
    Mr. Zatezalo. Yes, sir.
    Senator Young. I'd like to turn to technological 
advancements within the mining industry and to your testimony. 
You indicated that adopting the latest technologies can help 
reduce the rate of fatalities but also promote safety more 
generally. You mentioned, I think, highly specialized sensors, 
night vision cameras.
    Are there some examples of perhaps other necessary and 
immediate improvements in technology that need to be made by 
our operators, and if so, are there barriers in approving some 
of these technologies that hinder their adoption?
    Mr. Zatezalo. One of the biggest areas that I want to focus 
on is early technology adoption, because the mining industry 
has not been at the forefront of technology advancement, 
especially for safety. The first case that comes to mind is 
proximity detection. Proximity detection was mandated on 
continuous mining equipment some time ago. It seems to be 
fairly effective. However, there are further refinements that 
need to be made to that.
    Proximity detection relies upon a proximity sensor that's 
to be worn by the operator. There are two groups out there 
today that are, for example, making proximity detection that is 
embedded within the cap lamp of a continuous miner. We've had 
issues, accidents, and, sadly, a fatality since then because of 
people who removed the proximity detection badge because it was 
a nuisance to them.
    We can put those in cap lights, which miners will not 
remove. The hold-up on that seems to be that that has to be 2G 
approved. In the electrical approval group of MSHA, all 
electrical devices have to be approved as explosion proof in a 
methane and air mixture. That technological support is 
currently backlogged at MSHA, and I believe it needs some 
additional resources put to it so that we can get some of the 
new innovations, especially the innovations that affect safety 
of miners, approved and in use underground.
    Senator Young. Well, to the extent barriers still exist 
after your confirmation vote, sir, and to the extent that 
Congress can be of assistance in pushing through some of these 
barriers, count me in. I'll look forward to working together.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Young.
    We'll recess for about 15 minutes while we vote, and then 
we'll resume.

    [Whereupon, at 3:39 p.m., the Committee recessed, to 
reconvene at 4:05 p.m., the same day.]
                                ------                                

    The Chairman. The hearing will come to order, and we'll go 
to Senator Kaine.

                       Statement of Senator Kaine

    Senator Kaine. Thank you, Mr. Chair, and I appreciate the 
witnesses.
    Congratulations on your nominations by the White House. I'm 
going to direct my questions to Mr.--I want to make sure--is it 
Zatezalo?
    Mr. Zatezalo. Yes.
    Senator Kaine. Thank you, Mr. Zatezalo. There has been a 
controversial matter dealing with the mining accident at the 
Upper Big Branch Mine that was significantly investigated, 
including by MSHA.
    Mr. Zatezalo. Yes, sir.
    Senator Kaine. The CEO of Massey Energy, Don Blankenship, 
who served a 1-year sentence for that--for conspiracy to 
violate mine safety laws, has asked President Trump and MSHA to 
reopen the investigation into that incident in which 29 miners 
were killed. Would you honor that request should you be 
confirmed?
    Mr. Zatezalo. Senator, absent any new evidence, I don't see 
any reason why it should be reopened.
    Senator Kaine. My understanding is that there have been six 
investigation reports. All of them found the same thing, that 
Upper Big Branch was a preventable coal dust explosion ignited 
by methane fire caused by failure to abide by certain 
regulations, especially a ventilation plan. So your testimony 
here today is that unless there's some new factor that's never 
been looked at or some new information that hasn't been seen, 
there would be no reason to reopen that investigation.
    Mr. Zatezalo. That's correct, sir.
    Senator Kaine. Thank you for that. There's a difference 
between--you were a CEO of a regulated entity and obviously 
head of the entity doing the regulating. There's no bar to 
that. We often put people in those positions who have a private 
sector background. When you were the CEO of Rhino Resources, 
the Eagle No. 1 mine was put on a proposed pattern of 
violation, PPOV, notice in November 2010 and then again in 
August 2011. A PPOV is issued--am I correct about that? Do I 
have the dates right?
    Mr. Zatezalo. Yes, sir, you do.
    Senator Kaine. My understanding is a PPOV is issued to a 
mine if safety violations are extensive and the enforcement 
actions are not immediately addressing the problems. Do you 
think those sanctions of your company in those instances were 
fair and appropriate?
    Mr. Zatezalo. I think that the management of that 
particular group and that particular site was not doing what 
they should have been doing. I was not proud of the fact that 
we got designated as a PPOV mine. I did not try to lawyer up 
and stop anything from happening. I felt that if you haven't 
done your job, then we should be big kids and deal with it as 
such.
    Incidentally, I replaced that management, because I wasn't 
too happy with their performance and I hadn't been for some 
time. So I replaced that management.
    Senator Kaine. Was that one of the reasons in the matter 
that we're talking about?
    Mr. Zatezalo. That was one of the reasons, yes sir.
    Senator Kaine. Do you think you would have any challenge 
working with the senior career staff at MSHA given that some of 
them were involved in taking enforcement action against your 
company?
    Mr. Zatezalo. No, sir. I don't. They did what they were 
supposed to do.
    Senator Kaine. In southwest Virginia, there's been an 
epidemic of the progressive massive fibrosis, PMF, and that's 
the most severe form of black lung disease, and it's a disabler 
of hundreds of coal miners. Miners are contracting this 
disabling illness in very significant clusters, in their 30's, 
at a very young age. The largest cluster of this disease ever 
documented was found there in southwest Virginia last year and 
more are being uncovered every week at a clinic in Saint 
Charles, Virginia.
    In your staff interview, it's been reported to me that some 
of the severe lung damage is caused by mining rock mixed with 
thinner coal seams causing miners to then inhale the 
crystalline silica, which is far more toxic than coal dust.
    Mr. Zatezalo. Yes, sir.
    Senator Kaine. You said during a staff interview, it's been 
reported to me, that the technology to monitor silica dust in 
real time does not exist. Talk to me a little bit about that. 
Is there the possibility, the technological possibility, of 
getting to a point where we can more effectively monitor the 
real time----
    Mr. Zatezalo. I would hope so, sir. I mean, we have been 
successful with the assistance of NIOSH of being able to 
monitor coal dust in real time. NIOSH had to develop that 
technology, and, to date, there is only one manufacturer who 
has a device like that that's available for purchase. My 
understanding is that with the assistance of that device, we've 
been able to reduce the amount of black lung exposure that we 
have had.
    MSHA has had laws on the books for many years that regulate 
quartz, which is a mineral that is predominately silica, that 
sets a statutory limit on that of 5 percent. However, in order 
to do that, you have to collect the sample; it has to weigh a 
certain amount; you have to send it to a lab; you have to get 
it back; and by the time you get it back, there could have been 
a couple of weeks elapsed.
    I am not aware of any technology that allows you to monitor 
silica in real time. It is certainly something that I would be 
interested in. Incidentally, I understand that the National 
Academy of Sciences, as well as NIOSH and MSHA--it's being 
coordinated by the National Academy of Sciences--is putting 
together a report that should be available in January to 
delineate and, hopefully, offer suggestions on how to address 
this.
    Silicosis is not an acceptable thing for our people to be 
exposed to. It has been prevalent within Virginia and in 
eastern Kentucky, I believe, because of the amount of out of 
seam dilution.
    Senator Kaine. Right.
    Mr. Zatezalo. Coal dust is something that we think at this 
point in time we can handle fairly well. Silica is much more 
difficult to handle, and we're going to have to go to some 
engineering type controls and really increase ventilation and 
really increase some water to be able to control that, sir. 
That's my thoughts.
    Senator Kaine. Thank you for answering those questions.
    Thank you, Mr. Chair.
    The Chairman. Thank you, Senator Kaine.
    Senator Casey.

                    Statement of Senator Casey, Jr.

    Senator Casey. Thanks very much, Mr. Chairman.
    I wanted to start with a similar line of questioning that 
Senator Kaine pursued with regard to--first and foremost, I 
wanted to ask you about mine safety. There have been 13 coal 
mine fatalities, including Andrew Oxenrider, who was killed in 
an accident in Schuylkill County, Pennsylvania. That was in 
July of this year. This is the highest total since 2014 or 2013 
killed. In the previous administration, improved enforcement 
efforts by MSHA led to a decrease in violations and fewer 
deaths. President Trump didn't nominate you to head MSHA until 
September 2nd.
    Do you believe that there's a lack of leadership at MSHA 
that might have contributed to lax enforcement?
    Mr. Zatezalo. No, sir. I have not--I do not believe that 
the fatalities we've had have been due to lack of enforcement. 
But I don't have all the details on that. All I have is the 
little one-page summary, so it's probably inappropriate for me 
to comment on that.
    Senator Casey. Do you have a sense, for any of those 
fatalities, of what caused them?
    Mr. Zatezalo. I do know that one of them was caused by 
proximity detection being taken off of the worker.
    Senator Casey. I'm sorry. By----
    Mr. Zatezalo. Proximity detection being removed from the 
worker. The remainder of them--and it was my understanding that 
six of those were in metal, nonmetal. It's my understanding 
that the remainder of them were all separate isolated 
incidents, of course.
    Senator Casey. I guess that one of the main issues here in 
terms of preventing deaths or preventing injuries is how many 
inspectors you have. Do you have any sense of the adequacy of 
the number of inspectors?
    Mr. Zatezalo. It seems to me that the number of inspectors 
is pretty good today. I mean, from the data that I see, MSHA 
has still been making--they have made all of their required 
inspections, which is four per year. We certainly don't want to 
let that fall down, I mean, just as I wouldn't want to drive on 
the highways without police and constables to take control of 
speeders and drunk drivers. Inspections in mines in the United 
States are a necessity, and they have to continue, and I don't 
think they should continue at a diminished rate, either.
    Senator Casey. Well, I hope, Mr. Zatezalo, if you were to 
be confirmed, that you would--and you did not see the number of 
inspectors at a level you would expect, that you would advocate 
for more funding, more support, and make that clear to 
Congress.
    Mr. Zatezalo. I absolutely would, sir.
    Senator Casey. Let me go back to the black lung issues, the 
progressive massive fibrosis question. You may have answered a 
good part of this already. But the last administration, by way 
of rulemaking and enforcement, allowed protection for both 
health and safety of coal miners, including those in my home 
state. The respirable dust rule reduces the exposure of mines 
to coal mine dust that causes lung diseases, including black 
lung.
    Tell me about how you would approach enforcement of those 
rules or those laws and regulations.
    Mr. Zatezalo. Sir, that enforcement is ongoing today and 
would have to continue. I would not propose any reduction in 
the enforcement in that. That's very prescribed in the laws as 
enacted by Congress, and I would not see that diminished. The 
only thing that remains--that has to be investigated further is 
probably the silicosis and the silicon issues that, hopefully, 
we'll have some better light on in the January report by the 
National Academy of Sciences that's going to, hopefully, lay 
out a plan for that.
    Silicosis is a much different dust to control than is black 
lung, which is really lighter carbonaceous material that can 
be--that we have the technologies to handle. We may have to 
develop some technologies to handle silicosis better and take 
some interim steps in the meantime. The increase that's been 
discussed is certainly unacceptable, and it's something that, 
until it's explained more fully, I can't elaborate on what we 
would have to do. But we would have to start by taking some 
engineering type control, sir.
    Senator Casey. I'm out of time, but I'll just read a 
headline from the December report--Advanced Black Lung Cases 
Surge in Appalachia. That, among other pieces of evidence, I 
think, indicates that we've got some work to do. I hope you 
would advocate for resources and resist or push back on efforts 
to undermine those rules and regulations.
    Mr. Zatezalo. Absolutely.
    Senator Casey. Thank you.
    The Chairman. Thank you, Senator Casey.
    Senator Murray.
    Senator Murray. Thank you very much.
    Ms. Stanton, let me start with you. Last year, the Wage and 
Hour Division finished a rule to make overtime pay a reality 
for about 13 million workers. In putting together that rule, 
the agency went through a very strenuous 2-year process. They 
incorporated input from workers and businesses and unions and 
stakeholders. A Texas court's decision has blocked that rule, 
and the Trump administration has the opportunity to stand up 
for workers. It can appeal the decision and defend that rule in 
court.
    Will you commit to standing with the 13 million workers 
affected who would benefit from the updated overtime rule and 
appeal this court decision?
    Ms. Stanton. Thank you, Senator, for that question. The 
rule that went into effect, as you mentioned, last year has 
been stopped by a Texas court judge right now. I think before 
any decision is being made on whether to appeal would always 
involve, whether I was confirmed as the Administrator or 
someone else--would always need to involve talking to the 
lawyers.
    My first question, if I were to be confirmed--my first 
question when I went to ask about this would be to say, ``What 
do we think our legal chances are here? How do we see this case 
progressing? How long do we see this case progressing?'' 
Because one of the concerns I would have is every day we're 
fighting in court is one more day that we don't have a 
regulation on the books.
    The questions I would want to ask of the lawyers are 
whether it would be more prudent to fight this, which is 
definitely one action that we could do, or whether we would 
want to look at promulgating a different rule that would be 
more likely to withstand a litigation, that would then go into 
effect faster than the litigation. If I were confirmed, I would 
have a lot of questions about which avenue would get us 
protections for workers faster.
    Senator Murray. Do you think those 13 million workers 
should be paid more?
    Ms. Stanton. I don't think there's any dispute that it has 
been a very long time since that salary test was adjusted and 
that it's time to re-look at it and find a better benchmark for 
today.
    Senator Murray. More than 5 years ago, the Department of 
Labor finalized a rule that stipulates that tips are the 
property of tipped employees. The rule said that employers 
cannot take workers' tips to pad their own pockets or pay 
untipped workers, even if the employer has paid tipped 
employees the minimum wage. This rule has helped a lot of 
workers become more financially secure, especially women, who 
make up two of every three tipped workers, many of them moms.
    Do you believe that tips are workers' property?
    Ms. Stanton. I did see that there is on the regulatory 
agenda an intent to look at that rule. I don't know--I have not 
talked to anyone at the Department and don't know what the view 
behind that is. I do know that--I do believe that workers 
should be entitled--that we need to comply with the statute and 
ensure that people who are paid in accordance with the law 
receive the money they're entitled to. I don't know, as I say, 
what the intent was behind that going on there.
    I know that, like any other rulemaking, it's very hard to 
pre-judge where you are going to go with a regulation if you go 
into the rulemaking process. It's hard for me to sit here right 
now to know what that looks like, including what the legal 
parameters on something like that would be.
    Senator Murray. President Trump has announced he's going to 
rescind the rule. I wanted to know if you would advocate to 
keep the current rule. It doesn't sound to me like you're----
    Ms. Stanton. I did not mean to suggest I was taking a 
position, Senator. What I should have said more clearly is if I 
were confirmed, I'd want to go in and hear more about both 
sides of the issue. I'd want to understand what comments came 
through in the rulemaking process. Again, I would also--
recognizing that the regulation can only be enacted to the 
extent that Congress has authorized the Department to act under 
a statute--would want to understand from the lawyers what the 
options, legally, are, and then turn to the policy issues, 
particularly, as we learn more through a rulemaking process.
    Senator Murray. I want to ask both Ms. Stanton and Mr. 
Robb--President Trump has owned a number of businesses that 
have come under investigation for mistreating workers and have 
been cited for numerous labor violations.
    Ms. Stanton, according to USA Today's investigation, 
President Trump's businesses have been involved in hundreds of 
legal actions for failing to pay workers the wages they are 
owed. His businesses have been cited by the division of the 
Department of Labor that you would lead for 24 wage violations.
    Mr. Robb, at least 40 cases involving President Trump's 
businesses have come before the NLRB.
    I wanted to ask both of you, broadly, how will you handle 
ethical issues raised when your agencies have cases involving 
businesses owned by the President when he has appointed you to 
your job? Will you recuse yourself? What will you do? I'll ask 
both of you.
    Ms. Stanton.
    Ms. Stanton. I would start by saying I would go to the 
Department of Labor ethics officer. In my limited experience in 
Federal Government, we have a very strong group of 
professionals who handle ethics and conflict of interest issues 
like that, and I would seek guidance on what the best course of 
action would be.
    Senator Murray. Mr. Robb.
    Mr. Robb. Similarly, the National Labor Relations Board has 
an office on ethics with a number of people in it, and I would 
consult with them to make an appropriate determination.
    Senator Murray. My time is up, but thank you, Mr. Chairman.
    The Chairman. Senator Murray, if you have any other 
questions, you're welcome to ask them, and then after that, I'm 
going to ask my questions and conclude the hearing.
    Senator Murray. OK. I do have a number of questions, and I 
would like to submit them for the record. Unfortunately, 
today's hearing was amidst budget hearings and votes and 
everything else, and these are three important witnesses. But I 
will submit them for the record and would like answers in 
writing.
    The Chairman. Thank you, Senator Murray. They'll be--I'm 
sure they will answer your questions.
    Mr. Robb, in August 2015, the NLRB declined to assert 
jurisdiction over football players at Northwestern University 
who were seeking to form a union. In spite of this conclusion, 
the NLRB General Counsel issued a memorandum in October 2016 
stating that scholarship football players at private colleges 
and universities should be considered employees and protected 
by the National Labor Relations Act.
    A General Counsel memo is not binding. It doesn't have the 
force of law, however, it does direct NLRB officers how to 
apply the law. Twenty-five years ago, when I was president of 
the University of Tennessee, I was on the Knight Commission on 
Intercollegiate Athletics. It was headed by Bill Friday, the 
president of North Carolina, and Ted Hesburgh, the head of 
Notre Dame. Today, it includes Arne Duncan, the former 
Secretary of Education, and Paul Tagliabue, the former NFL 
Commissioner, and some very distinguished people.
    Here's something that this group of university presidents 
and others emphasized. They said, quote, ``We reject the 
argument that the only realistic solution to the problem of 
intercollegiate athletics--there's always been some--is to drop 
the student athlete concept, put athletes on the payroll, and 
reduce or even eliminate their responsibilities as students. 
Such a scheme has nothing to do with education,'' the Knight 
Commission said, ``the purpose for which colleges and 
universities exist. Scholarship athletes are already paid in 
the most meaningful way possible with a free education.
    ``The idea of intercollegiate athletics is that teams 
represent their institutions as true members of the student 
body, not as hired hands. Surely, American higher education has 
the ability to devise a better solution to the problems of 
intercollegiate athletics than making professionals out of the 
players, which is no solution at all, but rather an 
unacceptable surrender to despair.''
    Mr. Robb, do you believe it's appropriate for the NLRB 
General Counsel to tell the regional divisions that athletic 
scholarship students should be considered employees when the 
NLRB has clearly and very recently declined to assert 
jurisdiction?
    Mr. Robb. The scheme of the National Labor Relations Act 
has the Board as deciding the cases and the issues. The General 
Counsel acts more as a prosecutor for unfair labor practices. 
In terms of overseeing the regional directors, the General 
Counsel's job is to ensure that the regional directors are 
following the law. I would not expect to act any differently if 
I become a General Counsel. I would expect them to follow the 
laws the Board sets forth. I'm not specifically aware of why 
that particular memo was issued, but it doesn't seem to be 
consistent with the direction that I would think regional 
directors should take in following the law.
    The Chairman. Well, thank you. I hope you would give your 
attention to that, because it's a very important issue to me. I 
was a student athlete at Vanderbilt University, and I didn't 
feel like I was an employee of Vanderbilt University. I felt 
like I got a good education.
    Mr. Robb. I certainly will, sir.
    The Chairman. Thank you.
    Ms. Stanton, Senator Murray mentioned the overtime 
regulation. My primary concerns with the overtime rule were, 
although I agree with what you said, that it was time to 
address it. But the way it was addressed caused a lot of 
bipartisan consternation in the U.S. Congress, and several 
bipartisan bills were introduced to try to change it.
    My concerns were the rapid rate of increase--the salary 
threshold was set to double overnight--the harm it would cost 
to nonprofits, colleges, universities. I've got all sorts of 
letters from private colleges and universities about how they 
would have to increase tuition in order to deal with the 
overtime rule. The proposed rule included annual increases 
based on inflation with only 2 months' notice. If the salary 
level is indexed to inflation, there should be plenty of time 
for employers to prepare, and the top number of $47,000 was 
just too high for many parts of the country.
    Now, raising the threshold would have a different effect in 
New York City than it would in Maryville, Tennessee, where I 
live. Should regional variance be taken into consideration when 
setting a national threshold in a new rule?
    Ms. Stanton. Senator, that is a very important question. I 
will tell you that when we in South Carolina were looking at 
complying with the regulation, we recognized that salary 
disparity--the regional disparity, rather, and the impact it 
was having on South Carolina versus some other places.
    If confirmed as the Wage and Hour Administrator, I 
recognize that I don't go in on a blank slate. I go in to 
enforce the laws that Congress has set and the statutes set by 
Congress, and because of that, I know that there are certain 
parameters. My first question to the lawyers would be, ``Would 
it be possible to have regional variations?'' If legally 
possible to do that under the statute as it exists, then the 
second question would be, ``We need to look at the policy and 
at the labor information behind it to make a decision.''
    The Chairman. Well, I would hope you would focus on that, 
because common sense just tells you that a threshold in 
Manhattan is different than a--New York is different than a 
threshold in Manhattan, Kansas, and some accommodation ought to 
be taken on that. Also, I would hope that you would especially 
look at the impact of whatever rule you develop on nonprofits. 
We had stories of Boy Scout districts having to lay off one or 
two employees, of church camps having to close, and a whole 
variety. Senator Isakson made that point here.
    I would hope you would focus on that. I think this is an 
excellent opportunity for the Department to show the country a 
good example of how to write a good regulation on overtime 
regulation. I look forward to what you do.
    I ask consent to introduce two letters of support for Ms. 
Stanton, one letter of support for David Zatezalo, and three 
letters of support for Peter Robb, including from a union, into 
the record.
    [The following information can be found in the Additional 
Material section.]
    If Senators wish to ask additional questions of the 
nominees, questions for the record are due by 5 p.m. Friday, 
October 6th. For all other matters, the hearing record will 
remain open for 10 days. Members may submit additional 
information for the record within that time. We will meet in 2 
weeks to consider these nominees.
    Thank you for being here today. The Committee will stand 
adjourned.
    [Additional Material follows:]

                          ADDITIONAL MATERIAL

                               Thomas C. Alexander,
                                 Walhalla, SC,
                                                September 27, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.

    Dear Chairman Alexander and Ranking Member Murray: What a sincere 
pleasure to share my enthusiastic support for Ms. Cheryl Stanton. 
President Donald J. Trump's nominee as the next Administrator or the 
United States Department of Labor's Wage and Hour Division. I am 
confident you will witness a consistent theme of those from the public 
and private sector here in South Carolina and across our great Nation 
who believe in Ms. Stanton for this prestigious position.

    Personally, as Chairman of the Committee that oversees Director 
Stanton' s agency, the South Carolina Department of Employment and 
Workforce (SC DEW) I have witnessed firsthand her success in 
streamlining the agency and making sure it serves the people of South 
Carolina. Further, as Chairman, I have asked the tough questions and 
have firsthand knowledge of Director Stanton's management that has 
transformed the agency with enhanced customer service for all 
stakeholders.

    In her service as the Director or SC DEW she has taken the agency 
from disarray to one that is nationally recognized as a best practice 
model for placing returning veterans and families in jobs. Ms. Stanton 
and her leadership has been a guiding light within our state, as our 
citizens and businesses have faced not one but three natural disasters. 
Her efforts have consistently been recognized as helping to ensure 
benefits to those who were entitled and helping to get citizens back to 
work.

    I believe you will appreciate the transition from various 
complaints by constituents about the agency prior to Director Stanton 
to virtually no complaints now. This speaks directly to the 
transformation of the agency that I attribute directly to Ms. Stanton. 
In Director Stanton's four short years we see SC DEW dedicated to our 
workforce by matching workers with employers, lifting up the disabled 
and giving former inmates and the homeless hope for a better tomorrow. 
Morale is improving. benefits provided to those who qualify, and while 
taxes on our state' s businesses are lower for the third consecutive 
year. Also, I have observed how she has brought people together, 
community advocates. business leaders, to partner with the agency and 
members of the General Assembly as well.

    It is my hope and desire that this letter relates to you my belief 
that Ms. Cheryl Stanton will serve with distinction as Administrator of 
the United States Department of Labor's Wage and Hour Division. I am 
honored to support her nomination and humbly request she be confirmed 
by your Committee and the United States Senate.

            With warm personal regards,

                                       Thomas C. Alexander.

                                 ______
                                 
                           State of South Carolina,
                 Office of The Lieutenant Governor,
                           Columbia, SC,
                                                   October 3, 2017.

    Dear Chairman Alexander, Ranking Member Murray and the other 
Members of the Health, Education, Labor, and Pensions Committee: I 
write in advance of your October 4, 2017, hearing to highlight the 
outstanding work that the South Carolina Department of Employment and 
Workforce's Executive Director Cheryl Stanton has done for South 
Carolina, and to enthusiastically support her nomination to serve as 
the Administrator of the Wage and Hour Division at the United States 
Department of Labor.

    I served as the Chair of the Labor and Employment Subcommittee of 
the South Carolina Senate Labor, Commerce and Industry Committee from 
the start of Director Stanton's tenure at DEW until January of this 
year. When Director Stanton began, South Carolina's debt to the federal 
government was $531,557,413.41, the state's unemployment rate was 8.1 
percent, and my office was flooded with constituent calls complaining 
about how badly the department was handling unemployment claims.

    Today, South Carolina's unemployment trust fund has a positive 
balance of more than $700,000,000, and the unemployment rate is 4.0 
percent. Furthermore, I never hear complaints from constituents -
employers or claimants -about how DEW has handled an unemployment 
insurance claim. Moreover, DEW has cut employer's state unemployment 
taxes in three consecutive years, for an average savings of more than 
30 percent in taxes for class rates 1 through 19. In fact, in 2017, 
more than 69,000 employers will pay less in taxes than they would have 
paid under the previous tax system.

    Under Director Stanton's tenure, the workforce system has put 
392,193 South Carolinians to work. DEW has issued 171,843 Work 
Opportunity Tax Credit certifications to employers (for a potential 
savings of $478,300,750) to incentivize them to hire job seekers with 
the greatest barriers to employment. Additionally, South Carolina 
leveraged a grant issued by the Department of Defense to save 1090jobs 
-and create 490 more jobs -by helping defense contractors who were 
impacted by budget cuts/sequestration diversify their product lines.

    Director Stanton has brought a practical, but empathetic approach 
to solving South Carolina's workforce development issues, and in 
ensuring individuals who want jobs get jobs.

    Director Stanton, as I have told people across South Carolina, was 
the best decision former Governor Nikki Haley ever made in South 
Carolina. She transformed an agency overnight and made it work for 
employers, employees, and taxpayers. I offer you my full and 
unqualified recommendation, because I know that she will do for our 
country what she did for South Carolina.

            With Warmest Regards,

            Sincerely,

                                           Kevin L. Bryant,
                                               Lieutenant Governor.

                                 ______
                                 
                        United Way of The Midlands,
                             Columbia, SC,
                                                September 28, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.

    Dear Senator Alexander and Senator Murray: I write in support of 
Cheryl M. Stanton's nomination for Administrator of the U.S. Department 
of Labor Wage and Hour Division. I have known Ms. Stanton for several 
years in professional and volunteer capacities. I am a former human 
resources executive for a major firm in South Carolina, so have worked 
with her as she has led South Carolina Department of Employment and 
Workforce. Additionally, she and I have worked together as volunteers 
for several years with the area wide United Way campaign.

    Ms. Stanton is not only a committed public servant but also a 
committed community volunteer, working to improve the lives of the most 
vulnerable in our area. She is passionate about providing opportunities 
for economic mobility for disadvantaged individuals as well as being 
willing to work to raise money to support community programs towards 
these opportunities. This busy state executive volunteered to lead the 
South Carolina state employees' charitable giving campaign for two 
years in a row, raising over $625,000 and increasing state employee 
participation in the campaign by over 20 percent. She did this by not 
only recruiting and motivating an outstanding team of volunteers but 
also with her personal involvement and personal asks.

    While I believe her accomplishments leading DEW are enough to 
support a successful nomination, her community service and commitment 
provide additional proof of her commitment to opportunity and success 
for all--particularly the most vulnerable.

    I am happy to answer any questions you may have regarding Ms. 
Stanton. Thank you for the opportunity to address her nomination. I 
believe she will serve all of us very well as the nation's Wage and 
Hour Division Administrator, and I encourage you to approve her 
nomination.

            Sincerely,
                                           Sara S. Fawcett,
                             President and Chief Executive Officer.

                                 ______
                                 
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
    Dear Chairman, Senator Murray and Committee Members: It is with 
great pleasure that we write to recommend Cheryl Stanton for Wage and 
Hour Administrator at the United States Department of Labor.

    We are labor and employment lawyers in New Jersey who represent 
management, individuals and unions. Some of us have competed with Ms. 
Stanton for clients and others of us have been on the other side of the 
table advocating on behalf of employees and labor unions. In all 
instances, Ms. Stanton has behaved professionally and collegially in 
our dealings with her. Consistently, she has been courteous to both 
counsel and litigants and holds herself to the highest ethical 
standards in her role as an advocate.

    The undersigned have interacted with Ms. Stanton in the courtroom 
and/or though either the Executive Committee of the Labor and 
Employment Law Section of the New Jersey Bar and/or the Sidney Reitman 
Employment Law American Inn of Court. There were many instances in 
which one of us would contact Ms. Stanton regarding a case to seek her 
advise regarding legal issues, and we saw first hand her knowledge of 
the law and ability to analyze legal problems practically and 
emphatically to real life situations and real people.

    Many of us have disagreed with Ms. Stanton on legal issues at 
times, but we believe Ms. Stanton demonstrates sensitivity and 
understanding toward issues facing workers despite her representation 
of management. Her confirmation to the Wage and Hour Division would be 
an asset to the Department of Labor, employers and American workers.

            Respectfully submitted,

                               Labor and Employment Lawyers
                                             of New Jersey.

                                 ______
                                 
                            National Association of
                          State Workforce Agencies,
                                                   October 3, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.

    Dear Chairman Alexander and Ranking Member Murray: I am delighted 
to write this letter of support for Ms. Cheryl Stanton's confirmation 
as Administrator of the United States Department of Labor's Wage and 
Hour Division. As the Executive Director of the National Association of 
State Workforce Agencies, I have had an opportunity to observe Ms. 
Stanton's performance as Executive Director of the South Carolina 
Department of Employment and Workforce, and as NASWA's inaugural Chair 
of the Technology Committee and inaugural member of the WIOA 
Information Technology Support Center steering committee.

    I continue to be impressed by Ms. Stanton's professional leadership 
and organizational skills. Her ability to facilitate discussion on how 
improvements in technology can result in improved performance and 
service in the public workforce system exemplify her knowledge, 
dedication and expertise in these areas. During our national meetings 
of workforce agency leaders, she has shared best practices on serving 
ex-offenders, launching apprenticeship programs, and serving veterans 
all in an effort to return individuals to gainful employment.

    I believe her work in South Carolina will transfer over to the U.S. 
Department of Labor where she will represent both employees and 
employers fairly and work to improve employment in the United States. 
Please join me in endorsing Ms. Cheryl Stanton for the position of 
Administer of the United States Department of Labor's Wage and Hour 
Division.

            Sincerely,
                                          Scott B. Sanders,
                                         Executive Director.

                                 ______
                                 
                        Columbia Urban League, Inc.
                            South Carolina,
                                                September 26, 2017.
Hon. Lamar Alexander, Chairman,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
Joel E. Soloman Federal Building,
Chattanooga, TN.

Hon. Patty Murray, Ranking Member,
154 Russell Senate Office Building,
Washington, DC.

    Dear Senators Alexander and Murray: I am delighted to write this 
letter of support for Ms. Cheryl Stanton's confirmation as 
Administrator of the United States Department of Labor's Wage and Hour 
Division. As a member of the South Carolina Workforce Development 
Board, I had an opportunity to observe Ms. Stanton's performance as 
Executive Director of the South Carolina Department of Employment and 
Workforce. I was impressed with her professional leadership and 
organizational skills in restructuring the Agency's Workforce and 
Economic Development Division, resulting in enhanced employment 
opportunities for veterans, individuals with disabilities, youth and 
the homeless. Also, she partnered with the South Carolina Department of 
Corrections-Manning Correction's Second Chance employment training 
program, resulting in a 75 percent employment rate upon release for 
those inmates participating in this program.

    In South Carolina, Ms. Stanton has demonstrated a commitment to 
supporting opportunities for employees, as well as working effectively 
with employers. She is well qualified to serve as Administer of the 
United States Department of Labor's Wage and Hour Division.

            Sincerely,

                                   James T. McLawhorn, Jr.,
                     President and Chief Executive Officer.

                                 ______
                                 
                                  Corporate Office,
                                  115 Haywood Road,
                                  Greenville, SC.
                                 Midlands Division,
                               2119 Sunset Boulevard,
                                 W. Columbia, SC,
                                 
                                                September 27, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.

    Dear Senator Alexander and Senator Murray: I am honored to write 
this letter of support for Cheryl M. Stanton, Executive Director of the 
South Carolina Department of Employment and Workforce (DEW). I have 
known Cheryl since her appointment and have worked closely with her in 
my capacity as a South Carolina State Workforce Development Board 
member as DEW provides staff coordination for the SWDB. I also serve as 
an appointed member of the South Carolina Department of Employment and 
Workforce Review Committee and in this capacity participant in the 
performance review of its Executive Director (Cheryl Stanton). As such, 
I am comfortable and qualified to write this letter to you.

    As you know, Ms. Stanton has led the South Carolina Department of 
Employment and Workforce admirably since 2013. Here list of 
accomplishments is long. Cheryl is one of the strongest administrators 
I have seen.

      Ms. Stanton improved business processes across all 
programs to begin meeting nearly every federal performance measure.
      South Carolina was the first state in the nation to have 
every county fully certified as an ACT Work Ready Community.
      Cheryl brought in more than $7.17 million in funds from 
the sale of ten unneeded DEW properties.
      From 2013-2017 under her leadership, DEW issued Work 
Opportunity Tax Credit Certifications that may result in potential tax 
savings of $508,281,350.

    Ms. Stanton is admired by the business community in our state for a 
number of accomplishments.

      She reduced UI tax on businesses for four consecutive 
years, with an average savings of 30.9% across tax rates since 2013.
      In 2017, nearly 70,000 of our state's businesses will pay 
lower taxes than the lowest rate prior to the 2010 tax reform.
      Cheryl helped defense contractors diversify their product 
lines to retain over 1000 jobs, create 490 new jobs, retain over $420 
million in sales and generate new sales of $219 million through a 
defense diversification grant.

    Cheryl is also a good friend to those in (and who want to be in) 
the South Carolina workforce.

      From July 2013 to August 2017, DEW has put 392,193 South 
Carolinians to work.
      DEW is recognized as a national best practice model for 
placing returning veterans into jobs so they can support their 
families.
      In partnership with the leadership of other agencies, 
Cheryl initiated a program that begins serving soon-to-be-released 
inmates while they are still in prison. Through her leadership this 
program helped 389 inmates (75% of total) find work after completing 
the Second Chance program at Manning Correctional Facility's Re-Entry/
Work Release program.

    Ms. Stanton continues to be one of South Carolina's most respected 
officials. I think this is due, in large part, because of her ability 
to bring different stakeholders together, build consensus among them 
and solve the workforce development challenges facing our state. I 
heartily endorse Cheryl and hope you will, too.

            Sincerely,

                                          Patrick Michaels,
                                   Chief Executive Officer.

                                 ______
                                 
                      Gibson, Dunn & Crutcher, LLP,
                            Washington, DC,
                                                September 27, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.

    Dear Chairman Alexander and Ranking Member Murray: I am writing in 
support of the President's nomination of Cheryl M. Stanton to serve as 
Administrator of the U.S. Department of Labor's Wage and Hour Division.

    I have known Cheryl since she was in law school, when I recruited 
her to accept a summer position at the Gibson Dunn Law Firm. She 
accepted, and then joined the firm full time after her clerkship; I 
worked closely with her in the approximately year-and-half she was with 
the firm before returning home to the New York-New Jersey area. Cheryl 
and I have remained in touch since. (I also know Cheryl's parents; her 
father is a respected employment lawyer whom I came to know from 
professional events.)

    Cheryl would be an outstanding Administrator of the Wage and Hour 
Division. She is an exceptionally experienced, knowledgeable employment 
lawyer who now has substantial government management experience as head 
of South Carolina's Department of Employment and Workforce. She also 
would bring familiarity with the operation of government agencies in 
Washington, DC, having served in the White House Counsel's Office (in 
addition to her time in Washington with my firm). And of course, as her 
resume reflects, she's a very smart, capable lawyer. I served as 
Solicitor at the Department of Labor in the administration of President 
George W. Bush, and have followed the Labor Department fairly closely 
during most of my 27-year career as a practitioner-I believe that 
Cheryl brings experience and credentials as strong as any recent Wage-
Hour Administrator.

    Cheryl is also a warm, decent person, as I believe you will see 
when you meet her. As confident as I am that she would manage Wage-Hour 
effectively, I am equally confident that she would also do so in a 
manner that is mindful of the importance and often very personal impact 
of the decisions she would be called upon to make, and that is 
respectful toward all whom she encounters as Administrator. Even where 
there is disagreement, I think, Cheryl will learn and make better 
decisions by having weighed and genuinely considered the different 
points of view on matters that come before her.

    I hope that this letter is helpful. Please let me know, of course, 
if there is more information I can provide as you consider Cheryl's 
nomination.

            Very truly yours,

                                             Eugene Scalia.

                                 ______
                                 
                           COL (R) Craig J. Currey,
                          27 Wateree Key Court,
                              Winnsboro, SC,
                                                September 29, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.
    Dear Committee Members: I want to give my highest recommendation to 
Ms. Cheryl Stanton for appointment to serve as Administrator of the 
U.S. Department of Labor's Wage and Hour Division. Her selection will 
benefit not only American businesses but also American workers.

    While serving on the State Workforce Development Board under her 
tenure as the leader of the Department of Employment and Workforce for 
South Carolina, I had the opportunity to watch her form a Back to Work 
Program to help unemployed homeless people at the shelter where I am 
currently the CEO. She moved her staff to create the program and made 
it effective at helping homeless. The program was incredibly successful 
at placing homeless into jobs that have led to successful placement 
into housing for many of them. The program is presently being modeled 
to be used elsewhere in the state. She also formed the Special 
Population Committee for the SWDB of which I am a member. The committee 
has given added attention to the homeless, disabled, and veterans. As a 
34-year veteran of the Army, I am glad that Cheryl cares enough about 
those who need extra effort to get back into the workforce.

    Cheryl Stanton has run the Board and committees with excellence. 
She is organized, articulate, and caring. She will do well in whatever 
job she does. Please appoint her, so she can help our nation.

            Respectfully,

                                           Craig J. Currey,
                                          Colonel, US Army Retired,
                                   Transitions Homeless Center CEO.
               International Franchise Association,
                                                   October 3, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.

    Dear Chairman Alexander and Ranking Member Murray: As the oldest 
and largest trade association in the world devoted to representing the 
interests of the franchising industry, the IFA writes to express its 
support for the President's nomination of Cheryl Stanton as the 
Administrator of the Wage and Hour Division of the Department of Labor. 
The IFA's membership includes franchisers, franchisees and suppliers. 
IFA's membership currently spans more than 300 different industries, 
including more than 11,000 franchisee, 1,100 franchiser and 575 
supplier members nationwide. The IFA's mission is to protect, enhance 
and promote franchising through government relations, public relations 
and educational programs on issues that affect franchising.

    The Wage and Hour Division is critical to the franchising industry 
because it plays a key role in the regulation of the workplace and 
oversees the enforcement of the federal minimum wage, overtime pay, 
record-keeping and child labor requirements of the Fair Labor Standards 
Act and the Family and Medical Leave Act. The IFA believes that Ms. 
Stanton would be a strong Administrator of the Wage and Hour Division, 
who could fairly balance the workplace needs of both business and 
employees.

    The new Administrator of the Wage and Hour Division will need to 
provide a balanced approach to workplace policies and reverse the Obama 
Administration's Wage and Hour Administrator, David Weil's, 
unprecedented and over-reaching rules and regulations. President Trump 
has already made clear that the promotion of entrepreneurs and small 
businesses lies at the heart of his regulatory policy. The new 
Administrator needs to tear down the Obama era regulatory barriers, 
such as unrealistic overtime rules and expanded joint employer 
liability, and create an environment that protects the health of the 
economy by allowing small businesses to create businesses and jobs.

    Ms. Stanton is an excellent choice for fostering an environment 
conducive to small business growth and job creation. She has served as 
the Executive Director of the South Carolina Department of Employment 
and Workforce for the last four years. Under her leadership, the S.C. 
Department of Employment and Workforce expanded the effectiveness of 
its workforce department and transformed its unemployment insurance 
division. The number of people working in South Carolina increased by 
ten percent and unemployment in the state is at a record low. Ms. 
Stanton focused on the workforce needs of South Carolina's business 
community, while also giving individuals the education and skills 
required to meet those needs. Ms. Stanton also has substantial working 
knowledge of the U.S. Department of Labor because she previously worked 
in the White House under President George W. Bush as his principal 
legal liaison to that agency, the National Labor Relations Board and 
the Equal Employment Opportunity Commission. She also worked as a 
shareholder at a major employment law firm and clerked for a federal 
circuit court judge after graduating from Williams College and 
University of Chicago Law School.

    Further, Ms. Stanton would bring a balanced approach to meeting 
workplace needs to the Wage and Hour Division. While in South Carolina, 
Ms. Stanton fostered partnerships with other agencies to identity 
workforce opportunities while sharing resources and assets. These 
partnerships include initiatives for veterans, individuals with 
disabilities, youth, and the homeless, and programs to enhance skills, 
address training for industry clusters and effectively match job 
seekers to businesses. For instance, Ms. Stanton partnered with the 
S.C. Department of Commerce, S.C. Technical College System and the S.C. 
Department of Education to create the S.C. Talent Pipeline project, 
which creates a steady stream of workforce-qualified candidates for 
state jobs. Ms. Stanton also partnered with the S.C. Department of 
Corrections for the Second Chance program, which works with inmates to 
search for work when released. Seventy five percent of the participants 
found work after completing the Second Chance program.

    Ms. Stanton would act as a responsible steward of the agency's 
resources. Under her leadership, the S.C. Department of Employment and 
Workforce repaid an almost $1 billion loan used to pay state 
unemployment insurance benefits between 2008 and 2011. Early repayment 
of the loan ensured S.C. businesses did not pay Federal unemployment 
insurance surcharge taxes and saved businesses more than $12.5 million.

    Ms. Stanton would also work to streamline the regulatory process at 
the Wage and Hour Division. At the S.C. Department of Employment and 
Workforce, she simplified the unemployment insurance benefits process 
to give individuals benefits faster and reduce fraud and overpayments. 
The resulting efficiencies saved the state money and have allowed South 
Carolina to reduce unemployment insurance taxes on average of 30 
percent for three years, which put nearly $200 million dollars back 
into the state's economy. At the same time, unemployment in the state 
dropped from 8.1 percent to 3.9 percent during her tenure at the 
agency. The IFA believes that Ms. Stanton would bring this same 
innovative problem solving to her tenure as Administrator of the Wage 
and Hour Division.

    For these reasons, IFA believes that Ms. Stanton would be an 
excellent choice to lead the Wage and Hour Division and urges the 
Committee to move as expeditiously as possible to ensure that the 
Administration has the benefit of her experience, innovation and 
expertise. Thank you for considering our views.

            Sincerely,
                                               Matt Haller,
                               Senior Vice President of Government,
                                        Relations & Public Affairs,
                               International Franchise Association.

                                 ______
                                 
                           Ogletree, Deakins, Nash,
                                     Smoak & Stewart, P.C.,
                                       Attorneys at Law,
                                        Raleigh, NC,
                                                   October 2, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC.

Re: Nomination of Cheryl Stanton as Wage and Hour Division 
    Administrator

    Dear Chairman Alexander and Ranking Member Murray: It is with great 
pleasure that I write to support Cheryl Stanton's nomination for Wage 
and Hour Administrator at the United States Department of Labor on 
behalf of myself and the lawyers and staff at Ogletree Deakins.

    Cheryl was an associate at Ogletree Deakins from January 2004 until 
January 2006 when she became a Shareholder in the firm. She left in 
October 2006 to join. President Bush's administration, but we were 
pleased when she returned in July of 2008 (again as a Shareholder).

    Shortly after she returned to Ogletree Deakins in July 2008, Cheryl 
was asked to serve as the General Counsel for the entire firm, in 
addition to her regular duties as a Shareholder representing clients. I 
was on the Board of Directors of Ogletree Deakins during the two years 
that Cheryl was the firm's General Counsel, and worked closely with her 
on important issues. I saw first hand not only Cheryl's legal acumen 
and problem solving skills, but also her practical and empathetic 
approach to issues.

    In addition to providing valued legal advice to the firm, Cheryl 
was well liked and often requested by our clients needing legal 
assistance in litigation as well as counseling. Cheryl was known for 
understanding the law and requirements, but also for taking the time to 
learn the client's business and needs to help them get to their desired 
outcomes within the confines of the law.

    Cheryl also managed several very large cases that involved 
supervising attorneys across many offices in the firm, spanning the 
east coast from Florida to Boston, and extending to Denver and Kansas 
City. She was able to handle multiple complex projects at the same 
time, a skill that would serve her well in running the Wage and Hour 
Division.

    We were disappointed for our firm and clients when Cheryl left to 
become Governor Nikki Haley's Executive Director for the SC Department 
of Labor and Employment, but we were excited for her. We are proud of 
the great work she has done there, and believe her leadership and 
talent would benefit the Wage and Hour Division.

    Please do not hesitate to contact me if you have questions or if I 
can provide additional information to the Committee, thank you.

            Sincerely,

                                           C. Matthew Keen,
                                              Managing Shareholder.

                                 ______
                                 
                                    National Stone,
                                 Sand & Gravel Association,
                                                   October 3, 2017.
Hon. Lamar Alexander, Chairman,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC.

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

    Dear Chairman and Ranking Member: As the Committee on Health, 
Employment, Labor, and Pensions prepares to vote on the nomination of 
David Zatezalo to serve as Assistant Secretary of Labor for Mine Safety 
and Health, the National Stone, Sand and Gravel Association (NSSGA) 
would like to express its strong support for his nomination.

    NSSGA represents stone, sand and gravel producers who are 
responsible for the essential raw materials found in every building, 
road, bridge and public works project. The emphasis on the regulatory 
reform at the Department of Labor is one of our highest priorities. We 
are deeply committed to the wellness of our workers. For this reason, 
our operators have committed themselves to constant improvements in 
safety performance. This has led annual reductions in injury rates from 
previous years' levels for 16 consecutive years. Last year, we attained 
our sector's lowest injury rate in history: 1.95 injuries per 200,000 
hours worked.

    Mr. Zatezalo's wide range of experiences in the mining sector 
render him well-prepared for administering the important work 
undertaken by MSHA. Mr. Zatezalo began his career as a laborer, and 
ascended to the position of President and CEO. Furthermore, Mr. 
Zatezalo attained academic degrees in both mine engineering and 
business administration.

    NSSGA appreciates your consideration of these views.

            Sincerely,

                                        Michael W. Johnson,
                                        President & CEO.

                                 ______
                                 
                Independent Electrical Contractors,
                                            Alexandria, VA,
                                                   October 4, 2017.
Hon. Lamar Alexander, Chairman,
Hon.Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
Washington, DC.

    Dear Chairman Alexander and Ranking Member Murray: On behalf of the 
Independent Electrical Contractors (IEC), I want to urge your swift 
approval of Peter Robb as the next general counsel of the National 
Labor Relations Board (NLRB) and urge you to quickly fill the vacancy 
that will occur when NLRB Chairman Phil Miscimarra's term ends on 
December 16,2017.

    Based in Alexandria, Virginia, the Independent Electrical 
Contractors is an association of over 50 affiliates and training 
centers, representing over 2,300 electrical and systems contractors 
nationwide. IEC's membership consists of primarily small businesses, 
with the average contractor member having around 30 employees, 20 of 
which are electricians. IEC's purpose is to establish a competitive 
environment for the merit shop, a philosophy that promotes free 
enterprise, open competition and economic opportunity for all. 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, in the 2017 school year, IEC will train 
more than 10,000 electrical apprentices.

    Reports have indicated that John Ring, a partner with Morgan Lewis, 
is the frontrunner for Mr. Miscimarra's position. Mr. Ring, who has 
served in various leadership positions in his firm and has decades of 
experience practicing labor law, is an excellent candidate and would 
have IEC's full support as a nominee for NLRB chair.

    Regardless of who the Trump administration nominates, IEC requests 
that you move forward with that nomination as quickly as possible. Once 
Chairman Miscimarra's term ends, the NLRB will be left with 2 Democrat 
Members and 2 Republican Members. Without a third Republican member to 
break the tie, the Board is unlikely to revisit the many Obama-era 
decisions it issued, which have caused disruption and uncertainty in 
labor relations at the expense of entrepreneurs, small businesses, 
workers and job growth.

    Thank you for your swift consideration of Mr. Robb, and we 
encourage you to move forward quickly with a replacement for Chairman 
Miscimarra, be it with Mr. Ring, or another equally qualified 
candidate.

            Sincerely,

                                             Jason E. Todd,
                                            Vice President,
                        Independent Electrical Contractors.

                                 ______
                                 
               International Franchise Association,
                                                   October 2, 2017.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington DC.

    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 
to expeditiously vote to support the nomination of Mr. Peter Robb as 
the General Counsel of the National Labor Relations Board. Franchising 
is made up of 733,000 establishments across the country, directly 
contributing $674.3 billion in economic output, and accounting for 
roughly 2.5 percent of the private sector U.S. GDP.

    The IFA and its members have come to know firsthand the important 
role the General Counsel plays in the Administration of the National 
Labor Relations Act and the functioning of the Board and its multiple 
regions. For example, the ongoing litigation brought by the current 
General Counsel against a worldwide franchise brand has created 
uncertainty for an entire business model. Further, the General 
Counsel's Division of Advice has issued a letter involving yet another 
franchise business model which sadly failed to articulate clear 
standards for others seeking to avoid joint employer liability. 
Moreover, the legal theories advanced by the incumbent General Counsel 
has produced similar allegations of joint employment liability under 
other Federal statutes and state laws resulting in confusion, 
unnecessary legal exposure and expense causing some franchisor and 
franchises to even curtail the job creation franchising is known to 
produce.

    The new General Counsel of the NLRB enters office at an important 
time for franchising given what has been described above. More than 
anything, IFA members will benefit from clear direction to help guide 
the further development of franchising without hindering it through 
novel legal theories tested at the expense of many franchises who 
simply lack the resources, let alone expertise, to defend against the 
full force of an Agency of the US Government.

    Peter Robb's decades of experience as a practicing labor lawyer 
uniquely qualifies him for the position of General Counsel. He has 
worked in NLRB Regional offices where he has investigated hundreds of 
unfair labor practice charges on behalf of employees. He has litigated 
on behalf of employees who were disadvantaged under the Act achieving 
remedies for them. This is a person who not only understands and 
supports the underlying principles of the NLRA which fully protect the 
rights of employees to engage in protected and union activity but who 
has spent countless hours defending their rights to do so.

    In addition to his work at the Regional levels of the NLRB, Mr. 
Robb has served as Deputy Chief Counsel and then Chief Counsel for 
former NLRB member Robert Hunter. In such capacity, he provided 
balanced, objective input enabling distinguished Member Hunter to issue 
decisions in hundreds of cases before the Board.

    Mr. Robb understands fully, then, the way the Board operates in the 
field and at the Board level. Such understanding is critical since the 
General Counsel has many administrative responsibilities to carry out 
in his official capacity. Among them are budgeting for the Agency 
ensuring it can accomplish its critical mission efficiently within 
Administrative and congressional guidelines.

    More recently, Mr. Robb has been in private practice devoting his 
efforts exclusively to labor law. For many years, he has participated 
in multi-employer bargaining for an industry where union members are 
provided with extremely competitive pay and benefits. His mature 
guidance and balanced approach to labor management relations has 
contributed to the negotiation of those agreements.

    In short, Mr. Robb has been an employee advocate under the NLRA, 
has performed the functions the General Counsel's office must oversee 
and carry out and appreciates the way the NLRB members must decide 
cases with a healthy respect for the facts before them, existing 
precedent and the underlying principles of the NLRA. He has our 
complete confidence and we urge the Committee to vote for his 
confirmation as quickly as possible thereby avoiding any break in 
service between the incumbent General Counsel and his successor.

            Best Regards,
                                      Robert Cresanti, CFE,
                                                 President and CEO,
                               International Franchise Association.

                                 ______
                                 
                            United Nurses & Allied,
                                     Professionals,
                                         Unda McDonald, RN,
                                                         President,
                                                    Providence, RI.
Hon. Lamar Alexander, Chairman,
Hon. Patty Murray, Ranking Member,
U.S. Senate Committee on Health,
Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC,
September 28, 2017.

    Dear Chairman Alexander and Ranking Member Murray: I am writing 
this letter in support of the nomination of Peter B. Robb, Esq. to the 
position of General Counsel, National Labor Relations Board.

    I have spent 35 years on the Union side of the bargaining table 
representing health care workers in Rhode Island and Vermont. I have 
worked in all aspects of union work including organizing, negotiating 
contracts, representing the Union before the NLRB and in countless 
arbitrations. During that time my path has crossed with many management 
labor attorneys. Peter Robb stands out among them.

    First and foremost, I consider Mr. Robb a solid honest man of 
unquestioned integrity. He was always good to his word. While Mr. Robb 
is a very talented attorney and able advocate for his client, I felt he 
worked hard to settle disputes fairly whether they were in the 
grievance forum or at the negotiating table. Mr. Robb had an excellent 
grasp of the technical aspects of our challenges but I think his sense 
of people and the dynamics of labor relations were exceptional. He was 
always respectful to the people I represent demonstrating a steady, 
calm temperament whether in arbitration, at the NLRB or at the 
negotiating table. I have to confess that my dealings with Mr. Robb 
were not all serious business. I also enjoyed his good sense of humor.

    Because of his unquestioned integrity, knowledge, skill and 
decency, I am proud to offer this letter of support.

            Sincerely,

                                           John V. Callaci,
                                                          Director,
                              Collective Bargaining and Organizing,
                            United Nurses and Allied Professionals.
 Response by Cheryl Stanton to questions of Senator Alexander, Senator 
   Murray, Senator Casey, Jr., Senator Franken, Senator Whitehouse, 
           Senator Warren, Senator Kaine, and Senator Hassan
                           senator alexander
    Service Contract Act: The Service Contract Act (Act) requires that 
service employees who perform work ongovernment contracts in excess of 
$2,500 be paid locality-specific wage rates and fringe benefits, or the 
particular rates found in a predecessor contractor's collective 
bargaining agreement. Currently, there is confusion as to whether 
commercial motor carriers that haul government freight are exempt from 
the Act.
    Question 1. If confirmed, will you examine the Department of 
Labor's Service Contract Act guidance and clarify whether commercial 
motor carriers that haul government freight are exempt from the Act?
    Answer 1. If confirmed, I look forward to briefings with the Wage 
and Hour Division staff and the Department's attorneys, concerning 
whether commercial motor carriers that haul government freight are 
exempt from the Service Contract Act.
    Independent Contractor: The definition of who constitutes an 
independent contractor, as opposed to an employee, can vary 
significantly for purposes of federal and state laws. The multitude of 
tests used to determine a worker's status in different contexts can 
make predictability impossible for contracting parties, and can result 
in situations where an individual is an independent contractor in one 
instance, but an employee in another.
    Question 2. Would a harmonized employee definition allow federal 
agencies to more efficiently determine proper worker classification and 
enhance predictability among contracting parties?
    Answer 2. It would be premature for me to make a determination on 
this matter, but, if confirmed, I look forward to being briefed by Wage 
and Hour staff regarding matters pertaining to independent contractors, 
especially the laws enforced by the Wage and Hour Division. Generally 
speaking, harmonized rules and definitions can benefit workers and 
employers.
                             senator murray
    Question 1. As the Administrator of the Wage and Hour Division 
(WHD), how will you carry out the mission of the Division and protect 
America's most vulnerable workers? What will your priorities be?
    Answer 1. If confirmed, I look forward to joining the Wage and Hour 
Division and administering and enforcing the laws within the Division's 
jurisdiction. Together with the Division's staff, I will assist in 
fulfilling the Division's longstanding mission ``to promote and achieve 
compliance with labor standards to protect and enhance the welfare of 
the Nation's workforce.'' The Division is instrumental in promoting 
access to opportunities--opportunities for workers to move into the 
middle class, opportunities for workers to balance their family and 
work obligations, and opportunities for employers to compete on a level 
playing field.
    Question 2. Do you have experience enforcing the Fair Labor 
Standards Act (FLSA) or the prevailing wage laws commonly known as the 
Davis-Bacon Act and the Service Contract Act?
    Answer 2. As the Executive Director at the South Carolina 
Department of Employment and Workforce, I was responsible for ensuring 
that the agency was in compliance with the FLSA. While in private 
practice as a labor and employment lawyer, I spent approximately one-
third of my time counseling individual employers. That counseling 
included providing guidance to clients to ensure they were in 
compliance with wage and hour laws or, if they were not in compliance, 
advising them how to become compliant without disrupting their business 
model.
    Question 3. During your time in private practice, did you ever 
represent a worker in a case to recover unpaid wages, overtime or any 
other matter?
    Answer 3. While in private practice, I mostly represented workers 
in the restrictive covenant area--i.e., ensuring that workers were not 
subject to overly broad or unduly burdensome restrictions on their 
ability to work, compete with a former employer, or solicit former 
clients.
    Question 4. How do you believe your previous role representing 
employers will affect your judgment as the head of an agency charged 
with enforcing laws that protect workers?
    Answer 4. If confirmed, I will fully and fairly enforce the laws 
within the Wage and Hour Division's jurisdiction. I believe that my 
experience in representing employers will assist me in developing an 
effective outreach strategy within the confines of the Division's 
resources and available data to provide educational assistance to 
employers on becoming compliant and repaying workers and also taking 
full enforcement measures for willful violations of the law.
    Question 5. Looking at the history of the WHD under the Clinton, 
Bush, and Obama Administrations, which of those periods best captures 
your approach to a reasonable use of regulatory authority that provides 
greater certainty to the regulated community?
    Answer 5. I believe there are lessons to be learned from each 
Administration. If confirmed, I look forward to working with the Wage 
and Hour Division to assist the regulated community in navigating and 
complying with the numerous laws and regulations the Division covers. 
Given the scope of the Division's responsibilities, making the most of 
resources to achieve the greatest impact is paramount. Partnering with 
stakeholders to produce meaningful compliance assistance resources and 
focusing enforcement and compliance assistance efforts can increase and 
promote compliance with the laws the Division enforces.
    Question 6. What are three areas of wage and hour law that you 
believe need strengthening in order to better protect workers in the 
21st Century?
    Answer 6. I believe we need to (1) have a viable, lawful updated 
overtime regulation; (2) ensure that the Division's precious resources 
are being used to maximize enforcement to protect workers; and (3) 
establish how the existing wage and hour laws can lawfully be used to 
protect workers in the emerging ``sharing economy.'' However, if 
confirmed, I would seek the guidance and input from the Wage and Hour 
Division career professionals and many stakeholders to ensure that my 
current beliefs are in alignment with their experience and 
observations.
    Question 7. What do you see as the top five most important needs of 
workers in the 21st Century?
    Answer 7. Workers in the 21st Century need (1) opportunities for 
good paying jobs that allow them to provide for their families; (2) the 
skills to obtain and perform those jobs (which might require additional 
education/training); (3) enforcement of existing worker protections 
(i.e., wage and hour; safety; leave; etc.); (4) identification of any 
additional protections needed; and (5) clear, understandable 
information about their legal rights.
    Question 8. What is your management and leadership philosophy and 
how did it evolve during your time running the South Carolina 
Department of Employment and Workforce?
    Answer 8. My management and leadership philosophy is to set 
priorities for the agency (in consultation with career professional 
experts and external stakeholders); verbalize those priorities clearly; 
hold individuals to the expectations regarding those priorities; and 
clear any hurdles, barriers or problems for employees to meet the 
expectations so the priorities can be accomplished.
    One way this philosophy evolved during my time as Executive 
Director of the South Carolina Department of Employment and Workforce 
was to make sure I found time to listen to the perspective of front 
line staff. When I began meeting in small groups of front line staff, I 
learned that the picture and information that I was given from their 
senior management was not always accurate, and/or that the senior 
management was not properly conveying to their front line the 
priorities that the rest of senior leadership had established. We 
created more avenues for employees to verbalize what they were seeing, 
and gave employees exposure to leaders across the agency, not only to 
their specific managers. I encouraged leadership to get to know, listen 
and support people not just in their own chain of command but across 
the agency.
    Question 9. How will criticisms of your management and leadership, 
including from Republican Members of the South Carolina Senate, shape 
your approach to running the far larger WHD?
    Answer 9. As stated above, if confirmed, I would want to ensure 
that my direct reports and their direct reports are clear about the 
Division's priorities and the expectations to work toward those 
priorities and that those managers clearly provide that same 
information to all employees in their unit. I would want to ensure that 
employees have multiple avenues for sharing truthful information about 
what is happening in their units and workplaces and that their direct 
manager does not prevent crucial information from being shared, either 
to more senior management or to front line staff.
    Question 10. President Trump's Budget proposal for FY18 included a 
cut of 21 percent below last year's enacted level to the Department of 
Labor. If confirmed, will you publicly advocate for maintaining current 
funding levels and for increased resources for WHD enforcement 
activities?
    Answer 10. I did not participate in the budget process, nor as a 
nominee, could I have been involved in this process. If I am confirmed, 
I will maximize every dollar the Wage and Hour Division is 
appropriated. I look forward to working with Congress regarding Wage 
and Hour Division priorities.
    Question 11. What steps will you take to ensure that you retain 
staff at the Department of Labor (DOL)?
    Answer 11. The career Wage and Hour staff members bring a wealth of 
experience, knowledge, and passion to their individual areas of 
expertise. If confirmed, I will strive to ensure that the Wage and Hour 
Division retains and supports its current staff, whose institutional 
knowledge is invaluable, so they can continue to protect American 
workers.
    Question 12. How will you make decisions about how to deploy the 
limited number of investigators at the WHD to oversee some 7.3 million 
workplaces?
    Answer 12. Decisions on how to deploy resources should be based on 
an evidence and data-driven approach that ensures the effective 
combination of complaint response, directed enforcement, and compliance 
assistance. If confirmed, I look forward to working with the Division's 
committed staff and helping the Division realize efficiencies that 
maximize its resources to achieve the greatest impact on compliance.
    Question 13. How will you address egregious, repeat, and pervasive 
violators as Administrator?
    Answer 13. The central role of the Wage and Hour Division is to 
promote and achieve compliance with labor standards to protect and 
enhance the welfare of the Nation's workforce. In some cases, however, 
employers may egregiously, repeatedly, and pervasively violate the law. 
These unacceptable practices deny employees of wages and critical 
benefits and protections to which they are afforded under the law. 
Another consequence of such pervasive actions is the loss to the 
federal government and state governments who rely on compliance. If 
confirmed, I will work to fully and fairly enforce the laws within the 
Division's jurisdiction, including laws that penalize those who are 
repeat and pervasive violators of the FLSA. Further, I look forward to 
partnering with other Department of Labor agencies, such as the Office 
of the Solicitor and the Office of the Inspector General, on such 
issues.
    Question 14. What is the appropriate role of the WHD Administrator 
in determining when and how to dedicate resources to pursuing major 
violations of the FLSA?
    Answer 14. If confirmed, I look forward to helping the Wage and 
Hour Division use its limited resources appropriately and strategically 
to pursue all violations of the FLSA, particularly with the guidance 
and input of career professionals. I look forward to being briefed on 
the current use of certain tools and will work to address major 
violators within the Division's jurisdiction.
    Question 15. As Administrator, how will you pursue settlements that 
strike a balance between compensating employees for individual 
violations and promoting longer-term structural employer reforms?
    Answer 15. If confirmed, I would look to the investigators who have 
worked on individual investigations to make recommendations on the best 
avenue for ensuring the workers involved in that particular situation 
are protected and receive the best outcome possible. I would then 
discuss how that approach fits into and can further the greater 
enforcement strategy. In particular, I would be interested in analyzing 
the information we see in each settlement to see if there is a pattern 
of violations and whether the Division would need to reallocate its 
resources to ensure greater compliance with the laws it enforces.
    Question 16. What is the respective value of litigation, civil 
monetary penalties, and publicity in the case of egregious violations?
    Answer 16. If confirmed, I look forward to helping the Wage and 
Hour Division use these tools, and all of its tools, appropriately and 
strategically. I look forward to being briefed on the current use of 
these tools and will work to address egregious violators within the 
Division's jurisdiction.
    Question 17. In recent years, the WHD has utilized a data-driven 
approach in its work, which has helped the Agency more efficiently 
identify employers most likely to violate workers' rights or where 
employees face barriers to file complaints. What is your opinion and 
using data in wage and hour enforcement?
    Answer 17. If confirmed, I look forward to being briefed by the 
Wage and Hour Division staff on the various data and analytical tools 
available to identify employers most likely to violate workers' rights 
in order to protect the American worker. Using the available evidence 
and tools, the Division can prioritize enforcement resources, 
compliance assistance, and other tools to not only uncover violations, 
but assist troubled employers with future compliance with such laws.
    Question 18. Do you favor deploying the WHD's enforcement resources 
through strategic enforcement efforts like compliance agreements that 
apply to multiple establishments owned or licensed by the same company? 
What types of strategic enforcement methods do you expect to utilize?
    Answer 18. The determination concerning the best way to deploy 
enforcement resources with any particular matter or industry will 
likely depend on the particular circumstances of that industry or case. 
However, I believe effective enforcement requires the proper balance of 
responding to individual complaints and strategic enforcement in high-
violation areas. If confirmed, I look forward to being briefed by the 
Wage and Hour Division staff on the various data and analytical tools 
available to identify employers most likely to violate workers' rights 
in order to protect the American worker.
    Question 19. Will you commit to maintain the coordination 
agreements that the WHD has entered into with 37 state agencies around 
the country?
    Answer 19. If confirmed, I look forward to being briefed on these 
memoranda of understanding. I believe that mutual beneficial 
partnerships and cooperative enforcement between federal, state, and 
local agencies can benefit the American worker.
    Question 20. The Obama Administration discontinued the use of 
Opinion Letters by the WHD. Secretary Acosta has relaunched the use of 
the program. Do you believe that the case by case nature of the opinion 
letter process is an effective use of limited WHD resources?Why or why 
not?
    Answer 20. The Wage and Hour Division issued opinion letters for 
more than 70 years. The opinion letters provided specific facts and 
circumstances and the Division's interpretation to assist both 
employees and employers comply with the law. Because of the uniqueness 
of each opinion letter response and the lasting value, I support 
Secretary Acosta's relaunch of this program.
    Question 21. Do you believe that there should be transparency in 
the opinion letter process including requests as well as all responses 
whether signed by the WHD Administrator or others?
    Answer 21. For more than 70 years, the Wage and Hour Division 
exercised its discretion to determine which questions or issues should 
be addressed via opinion letters. Although the Division did not 
typically make requests publicly available, it did make its opinions 
publicly available. If confirmed, I intend to continue that process.
    Question 22. The WHD has a longstanding policy of not issuing 
opinion letters to parties under active investigation or in litigation. 
Will you retain and follow that policy?
    Answer 22. If confirmed, I will continue the policy of not issuing 
opinion letters concerning parties that the Wage and Hour Division 
knows are in litigation or under active investigation.
    Question 23. How do you respond to the perspective that violations 
of the FLSA undermine good actors who seek to comply with the law?
    Answer 23. A central role of the Wage and Hour Division is to 
ensure that employers have clear guidance from the Division on how to 
comply with the FLSA. Employers who intentionally violate the FLSA, 
however, undermine law-abiding employers that are paying their workers 
properly. If confirmed, I will work to fully and fairly enforce the 
laws within the Wage and Hour Division's jurisdiction, including the 
FLSA, to ensure the protection of both workers and law-abiding 
employers.
    Question 24. In 2013, you represented the Chamber of Commerce in 
challenging the National Labor Relations Board (NLRB) rule which 
required posting a notice of employee rights under the National Labor 
Relations Act. The Labor Department has a very similar rule (29 CFR 
516.4) which, like the NLRB's, was written to ensure workers are aware 
of their rights under the FLSA. Do you believe that the FLSA notice-
posting requirement is lawful and appropriate?
    Answer 24. I am not aware of any challenge to or argument that the 
FLSA notice-posting requirement is unlawful or that the Division is 
unlawfully or inappropriately enforcing that requirement.
    Question 25. Will you advocate for the phasing out of the tipped 
wage for customarily tipped workers?
    Answer 25. If confirmed, I will fully and fairly enforce the law as 
established by Congress, which provides for a tipped wage. States and 
localities may also set a tip minimum wage. I do recognize that cost of 
living and other economic factors vary greatly across the United States 
and that many states and localities have increased their tipped wage 
above the federal floor. If confirmed, I look forward to being briefed 
on various tip credit laws and regulations.
    Question 26. One of the most frequently violated labor standards is 
the ``80/20 rule'' that limits the amount of time tipped workers can 
spend on work that is not directly tipped work. What measures will you 
take to enforce the 80/20 rule and ensure that tipped workers spend no 
more than 20 percent of their work time on non-tipped work?
    Answer 26. If confirmed, I am committed to listening to interested 
stakeholders to understand the rule's impact on tipped workers and 
businesses. I will work to enforce the laws under the Department of 
Labor's jurisdiction fully and fairly.
    Question 27. Please provide your understanding of the role that the 
salary threshold and the duties tests play in determining if workers 
are exempt from overtime pay requirements for hours worked over 40 
hours a week under the FLSA?
    Answer 27. For more than 75 years, the Department of Labor's 
regulations implementing the exemptions that Congress set under Section 
13(a)(1) of the Fair Labor Standards Act have generally defined the 
terms ``bona fide executive, administrative, or professional capacity'' 
by the use of three criteria. With some exceptions, for an employee to 
be exempt: (1) The employee must be paid on a salary basis (``salary 
basis test''); (2) the employee must receive at least a minimum 
specified salary amount (``salary level test''); and (3) the employee's 
job must primarily involve executive, administrative, or professional 
duties (``duties test''). If confirmed, I look forward to working with 
the Wage and Hour Division staff in reviewing the more than 160,000 
comments received in response to the Request for Information.
    Question 28. With regard to the overtime rule, as you are likely 
aware, when adjusted for inflation, the salary level set in the 2016 
Rule is lower than the short test salary threshold set by DOL in 1975. 
If the 1975 short test salary threshold were adjusted for 2013 dollars, 
it would result in salary level of $1,083 per week. Do you believe 
working people in the United States should be earning less today 
relative to the incomes of working people in 1975?
    Answer 28. The Fair Labor Standards Act's overtime exemption salary 
threshold has not been updated since 2004. I look forward to briefings 
from the Wage and Hour Division staff on the Fair Labor Standards Act, 
the history of the Division's updates to the law, as well as from the 
Office of the Solicitor as to the legal authority the Division has, and 
the review of more than 160,000 comments received in response to the 
Request for Information as we develop the Department's regulatory 
policies and priorities.
    Question 29. If you are confirmed as the Administrator of the WHD, 
what steps would you take to ensure that the salary level for 
Executive, Administrative, and Professional (EAP) exemption is set 
sufficiently high so that it ensures that those who are not bona fide 
exempt employees would be protected by the FLSA's overtime rules?
    Answer 29. As I referenced earlier, the Fair Labor Standards Act's 
overtime exemption salary threshold has not been updated since 2004. I 
look forward to briefings from the Division's staff on the Fair Labor 
Standards Act, the history of the Department's updates to the law, as 
well as from the Office of the Solicitor as to the legal authority the 
Division has, and the review of more than 160,000 comments received in 
response to the Request for Information as we develop the Department's 
regulatory policies and priorities.
    Question 30. Do you commit to reviewing the more than 293,000 
comments that DOL weighed and considered before promulgating the 2016 
Final Rule prior to making a decision on appealing the adverse decision 
on the 2016 Final Rule?
    Answer 30. I understand that the Department recently issued a 
Request for Information concerning potentially new overtime regulations 
and received more than 160,000 comments. If confirmed, I look forward 
to analyzing comments concerning the overtime regulations, as well as 
receiving briefings from staff concerning comments received both before 
the promulgation of the 2016 Final Rule and in response to the most 
recent Request for Information.
    Question 31. A 2011 Department of Labor rule (the home care rule) 
requires home care workers to be paid at least the minimum wage and to 
be paid fairly for overtime work. Will you commit to maintaining this 
rule so that workers are not forced back to a time when they were paid 
subminimum wages and forced to work overtime hours without pay?
    Answer 31. If confirmed, I look forward to briefings from the Wage 
and Hour Division as we develop the Department's regulatory policies 
and priorities. I would need to thoroughly review the rule before I 
committed to supporting or opposing the 2011 home care rule.
    Question 32. According to 2011 data from the Rehabilitation 
Research and Training Center on Disability Statistics and Demographics 
(StatsRRTC), the median wage for a worker with a disability is less 
than two thirds the median wage for a worker without a disability. In 
his campaign's response to a questionnaire from the American 
Association of People with Disabilities, the National Council on 
Independent Living, and the REV UP Campaign, then President-elect Trump 
stated, ``People with disabilities have the right to be paid on parity 
with all others in the work force so they may earn a fair day's wage 
for a fair day's work. My administration will work with Congress to 
ensure that labor laws treat people with disabilities fairly.'' A 
significant barrier to fair wages for workers with disabilities is 
section 14(c) of the Fair Labor Standards Act (FLSA) of 1937, which 
authorizes employers to pay subminimum wages to workers with 
disabilities. In your staff interview, you stated the 14(c) subminimum 
wage certificate program was a priority issue for you.
      a. Do you agree with President Trump that workers with 
disabilities have the right to be paid on parity with all others in the 
workforce?
      b. Under 14(c), workers with disabilities are denied the 
guarantee of a minimum wage and instead are paid wages matching their 
productivity. Is it your opinion that paying workers with disabilities 
differential wages according to their output is discriminatory?
      c. Do you support phasing out the 14(c) subminimum wage 
certificate program? Do you support the Raise the Wage Act or other 
legislation that would eliminate 14(c)?
    Answer 32. As stated at the hearing, I believe that if confirmed, I 
would not be acting as the Wage and Hour Administrator on a blank 
slate, but rather would enforce the laws that Congress has passed. 
14(c) of the FLSA remains a statutory requirement that the Wage and 
Hour Division must enforce and implement. It is the duty of the Wage 
and Hour Division to enforce the laws which Congress enacts. If 
confirmed, I look forward to being briefed by career staff who have 
expertise on the 14(c) subminimum wage issues. I will support efforts 
to assist individuals with disabilities to achieve and maintain 
meaningful workforce participation.
    Question 33. The Advisory Committee on Increasing Competitive 
Integrated Employment for individuals with Disabilities was created by 
the Workforce Innovation and Opportunity Act. In September 2016 they 
issued a report to Congress and Secretary Perez, which included 
recommendations for both a phase out and, in the interim, improved 
oversight of the 14(c) subminimum wage certificate program.
      a. Will you commit to reading the report issued by the 
Advisory Committee on Increasing Competitive Integrated Employment for 
Individuals with Disabilities?
      b. What steps will the WHD take to limit the use of 14(c) 
certificates, including the issuance and renewal of certificates?
      c. Will you make public data collected by the WHD on the 
14(c) subminimum wage certificate program?
    Answer 33. As stated at the hearing, I believe that if confirmed, I 
would not be acting as the Wage and Hour Administrator on a blank 
slate, but rather would enforce the laws that Congress has passed. 
14(c) of the FLSA remains a statutory requirement that the Wage and 
Hour Division must enforce and implement. While I would need to 
thoroughly review any particular program (or changes thereto) before I 
committed to supporting or opposing it, I support efforts to assist 
individuals with disabilities achieve and maintain meaningful workforce 
participation.
    Question 34. Section 511 of the Workforce Innovation and 
Opportunity Act (WIOA) requires youth under age 24 explore and try 
competitive integrated employment before they can be placed in a 
subminimum wage setting, prohibits schools from contracting with 
entities holding subminimum wage certificates, and requires at least 
annual engagement of anyone in a subminimum wage setting to discuss 
opportunities for competitive integrated employment. The WHD has 
authority and jurisdiction to enforce these WIOA requirements.
      a. As the Administrator of the WHD, will you commit to 
the implementation and enforcement of section 511 of WIOA?
      b. How will the WHD ensure schools no longer contract or 
have other arrangements with entities holding subminimum wage 
certificates to employ or train transition-age youth with disabilities?
      c. How will the WHD ensure both youth under 24 and 
current 14(c) employees receive the career counseling on competitive 
integrated employment they are entitled to under section 511?
    Answer 34. If confirmed, I look forward to being briefed by staff 
at the Wage and Hour Division on these issues. I will work to ensure 
all provisions of the statutes enforced by the Division are applied 
fairly and fully to ensure compliance with the law.
    Question 35. The misclassification of employees as independent 
contractors harms workers who are not paid what they are owed, 
taxpayers who are subsidizing companies that evade their obligations 
and responsible employers who play by the rules. In your view what is 
most effective way for the WHD to signal that misclassification will 
not be tolerated?
    Answer 35. As I referenced earlier, a central role of the Wage and 
Hour Division is to ensure that employers have clear guidance from the 
Department on how to comply with the FLSA. Using independent 
contractors is a lawful and longstanding business option for employers. 
However, I understand some employers may violate the law by 
inappropriately classifying an employee as an independent contractor. 
Employees incorrectly classified as independent contractors may be 
denied access to critical benefits and protections to which they are 
entitled under the law and negatively impact federal and state 
governments Employers who intentionally violate the FLSA undermine law-
abiding employers that are paying their workers properly. If confirmed, 
I will work to fully and fairly enforce the laws within the Wage and 
Hour Division's jurisdiction, including laws prohibiting the 
misclassification of employees as independent contractors, to ensure 
the protection of both workers and law-abiding employers.
    Question 36. Many parts of the US are dealing with the devastating 
aftermath of Hurricanes Harvey, Irma, and Jose. The recovery in Puerto 
Rico is particularly devastating. What is your view of the appropriate 
prevailing wage for work funded by the federal government and what role 
should the WHD play in policing violations of prevailing rates by 
contractors in the course of reconstruction?
    Answer 36. The Davis-Bacon Act, the Service Contract Act, and the 
Public Contracts Act are the law. The Wage and Hour Division and 
contracting agencies share responsibility for enforcing that law. If 
confirmed, I intend to assure full and fair enforcement of the 
provisions under the authority of the Division.
    Question 37. If complaints are filed by workers in multiple 
locations of a large nationwide employer with a history of labor law 
violations, would you investigate those individual complaints, or would 
this type of circumstance warrant a systemic investigation of the 
company?
    Answer 37. The determination concerning the best way to proceed 
with any particular matter, including whether to proceed with an 
investigation on an individual or systemic basis, will depend on the 
particular facts in each given case. If confirmed, I look forward to 
briefings from, and consultations with, the Department on the most 
effective way to promote compliance with the laws under the 
jurisdiction of the Wage and Hour Division.
    Question 38. Under what circumstances would a repeat violator of 
wage and hour laws that is also a federal contractor warrant debarment?
    Answer 38. The determination concerning repeat violators and 
debarment proceedings depend on the particular facts in each given 
case. I understand that government agencies have suspension and 
debarment authorities and that the Department of Labor has existing 
capacity in the context of some statutes, including Davis-Bacon and the 
Service Contract Act. If confirmed, I look forward to being briefed on 
matters pertaining to this issue and will work to enforce the laws 
under the Department of Labor's jurisdiction, full and fairly, to 
ensure protection of all workers.
    Question 39. Many workers, including restaurant workers in 
particular, are subject to unpredictable scheduling of their work. As 
the WHD Administrator will you advocate for legislation providing 
workers with scheduling protections at work, including greater say over 
their hours?
    Answer 39. If confirmed, I look forward to working with Congress to 
provide the relevant information and technical assistance for Congress 
to best determine the necessary and appropriate legislation going 
forward.
    Question 40. Green Tobacco Sickness and nicotine poisoning are real 
hazards for 16- and 17-year-olds whose bodies and brains are still 
developing, leading to nausea, vomiting, headaches, dizziness, 
lightheadedness, and more. Human Rights Watch surveyed 26 children ages 
16 and 17 who worked on tobacco farms in the summer of 2015 and found 
that 25 of the 26 reported sickness, pain, and discomfort while 
working. What is the proper role of the WHD when it comes to protecting 
kids from nicotine poisoning and green tobacco? What tools would you 
use to address this problem?
    Answer 40. I share your concerns regarding the safety and health of 
children and young workers. If confirmed, I will fully and fairly 
enforce the FLSA provisions as they pertain to child labor. I will work 
with staff at the Wage and Hour Division and receive briefings on 
matters pertaining to children working on tobacco farms. I look forward 
to ongoing dialogue with Congress as to how we can advance the goal of 
child safety in the workplace.
    Question 41. The Family and Medical Leave Act (FMLA) guarantees 
eligible employees up to 12 weeks of unpaid leave each year to care for 
a newborn, a newly adopted child or a seriously ill family member, to 
recover from one's own serious health condition, including pregnancy, 
or address certain needs of military families. As the WHD 
Administrator, you would have responsibility for educating employees 
and employers about the FMLA, for investigating potential violations, 
and for enforcing this law. Will you defend the FMLA against efforts to 
gut the law or undermine its enforcement through the defunding of your 
agency?
    Answer 41. I recognize both the importance of the Family and 
Medical Leave Act and the critical role the Wage and Hour Division 
plays in increasing employee awareness, enforcing violations, and 
providing the necessary tools and resources to foster compliance. If 
confirmed, I will enforce the law fully and fairly. Although I have not 
participated in any budget discussions, I am happy to work with 
Congress to ensure that the Wage and Hour Division can meet its 
objectives. I also look forward to being briefed on all aspects of the 
Wage and Hour Division's budget and will work to ensure that workers 
are protected while the taxpayers' dollars are spent in the most 
effective ways possible.
    Question 42. Will you commit to advocating for adequate funding to 
maintain or increase staffing levels for FMLA enforcement in the budget 
the Administration submits to Congress?
    Answer 42. I recognize both the importance of the Family and 
Medical Leave Act and the critical role the Wage and Hour Division 
plays in increasing employee awareness, enforcing violations, and 
providing the necessary tools and resources to foster compliance. If 
confirmed, I will enforce the law fully and fairly. Although I have not 
participated in any budget discussions, I am happy to work with 
Congress to ensure that the Wage and Hour Division can meet its 
objectives. I also look forward to being briefed on all aspects of the 
Wage and Hour Division's budget and will work to ensure that workers 
are protected while the taxpayers' dollars are spent in the most 
effective ways possible.
    Question 43. DOL's own research and that of other academics shows 
that somewhere between 15 and 30 percent of employers' leave policies 
violate the FMLA. How will you address these violations?
    Answer 43. If confirmed, I commit that I will fully and fairly 
enforce the laws within the jurisdiction of the Wage and Hour Division, 
including the Family and Medical Leave Act. Additionally, I look 
forward to briefings with the Division concerning how to most 
effectively and efficiently increase employee awareness, promote 
employer compliance, and enforce violations of the law.
    Question 44. Will you support statutory updates to the FMLA to 
include some or all of the 40 percent of employees who are currently 
excluded from the law?
    Answer 44. If confirmed, I look forward to discussing how to 
support FMLA's protections with the Wage and Hour Division's staff, 
stakeholders, and Congress.
    Question 45. Will you support updates to the FMLA to allow 
grandchildren and grandparents to care for one another?
    Answer 45. Amending the Family and Medical Leave Act would require 
Congressional action. If confirmed, I look forward to working with 
Congress on important issues such as the need for families to have 
additional resources in an every changing economy.
    Question 46. Will you support an update to the FMLA to allow 
parents to take leave to attend meetings at their children's schools?
    Answer 46. Amending the Family and Medical Leave Act would require 
Congressional action. If confirmed, I look forward to working with 
Congress on important issues such as the need for families to have 
additional flexibility in an ever-changing economy.
    Question 47. Thirty-two percent of the private sector workforce--
more than 37 million people--have no paid sick leave. One recent study 
found that just 14 percent of women in the fast food industry report 
having access to paid sick days. When workers lack paid sick days, they 
are forced into impossible choices between taking care of their 
personal health, family health and the public health and meeting basic 
expenses like food and rent. For the typical family without paid sick 
days, just a few unpaid days away from work costs the family an amount 
equivalent to its entire monthly grocery budget. Workers without paid 
sick days are nearly 1.5 times more likely than those with paid sick 
days to go to work while sick, at significant cost to public health. 
Studies of the 2009 H1N1 pandemic show that access to paid sick days 
correlated with lower worker incidence of illness and shorter outbreaks 
in workplaces. Do you agree that workers' lack of access to paid sick 
days is a public health problem?
    Answer 47. I recognize that many states and localities have 
implemented paid leave laws. I believe attempts to expand paid leave 
beyond federal contractors would require Congressional action. If 
confirmed, I look forward to working with Congress as discussions 
regarding paid leave move forward.
    Question 48. Do you agree that employers have a role to play in 
ensuring workers have access to paid sick days?
    Answer 48. Attempts to expand federally-mandated paid leave beyond 
federal contractors would require Congressional action. If confirmed, I 
look forward to being briefed on this issue and working with Congress 
to provide the Wage and Hour Division's perspective on this important 
issue.
    Question 49. Would you support or oppose a national paid sick days 
standard like the standard set out in the Healthy Families Act?
    Answer 49. I would need to review any legislation or policies 
before I committed to supporting it. Attempts to expand federally-
mandated paid leave beyond federal contractors would require 
Congressional action. If confirmed, I look forward to being briefed on 
this issue and as needed, working with Congress to provide the Wage and 
Hour Division's perspective on this important issue.
    Question 50. You were on the board of directors of the South 
Carolina Chamber of Commerce, an organization that supported a bill to 
block local governments from enacting laws providing paid sick days or 
other employment benefits. Do you believe that state and local 
government are entitled to enact paid sick days legislation?
    Answer 50. Congress has set certain parameters for leave and other 
employee benefits, but states and local governments also weigh in on 
those issues. I recognize that cost of living and other economic 
factors vary greatly across the United States and that many states and 
localities have passed legislation that meet their local and regional 
needs.
    Ultimately it is the decision of legislatures at the federal, state 
and local levels what laws to pass regarding sick days and employee 
benefits; the Wage and Hour Division has no authority to act 
unilaterally. If confirmed, I will faithfully enforce the laws Congress 
enacts.
    Question 51. Do you believe that there are systemic concerns 
regarding wage and work conditions in the restaurant industry? If yes, 
what would you do to address these concerns?
    Answer 51. The Wage and Hour Division should use data and evidence 
to identify industries in which serious violations may be widespread. 
If confirmed, I look forward to being briefed on the work the Division 
is doing and I am committed to fully and fairly enforcing the FLSA and 
all its provisions while also providing meaningful compliance 
assistance to achieve the greatest impact.
    Question 52. Do you commit to inform the Members of this Committee 
if you intend to undertake any review or revision of any existing 
guidance?
    Answer 52. If confirmed, I look forward to working with Congress 
and keeping the Committee apprised of significant developments.
    Question 53. What is your opinion about whether minority Members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of the Department of Labor?
    Answer 53. Performing oversight of the executive branch is a 
longstanding responsibility of Congress.
    Question 54. If confirmed, do you agree to provide briefings on the 
Department of Labor to Members of the HELP Committee, including 
minority Members, if requested?
    Answer 54. If confirmed, I will answer requests for briefings from 
all Members of Congress.
    Question 55. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual Members of the HELP 
Committee including request for Department of Labor documents, 
communications, or other forms of data?
    Answer 55. If confirmed, I will provide responses to all Members of 
Congress.
                           senator casey, jr.
    Question 1. The Department of Labor has played an important role in 
enhancing protections for LGBT Americans. This includes the Wage and 
Hour Division's steps to interpret the Family and Medical Leave Act in 
a way that recognizes LGBT relationships. Can you assure us that, if 
confirmed, you will continue to enforce these orders and protect LGBT 
Americans?
    Answer 1. I believe discrimination on the basis of sexual 
orientation or gender identity is wrong, although I support religious 
entities' freedom to hire consistent with their faith. If confirmed, I 
will enforce anti-discrimination laws to protect employees of all 
protected statuses, including the Family Medical Leave Act.
    Question 2. How specifically will you ensure thorough investigation 
and enforcement of violations of the Fair Labor Standards Act?
    Answer 2. The determination concerning the best way to proceed with 
any particular matter will depend on the particular facts in each given 
case. If confirmed, I will strive to fully and fairly enforce the laws 
within the jurisdiction of the Wage and Hour Division. I look forward 
to being briefed by career staff on the various investigation and 
enforcement methods available to the Division under the Fair Labor 
Standards Act to ensure through investigations and lawful enforcement.
    Question 3. Many law-abiding employers are at a disadvantage 
because they are being undercut by other companies that misclassify 
their workers as independent contractors. Do you agree this is a 
problem? What will you do to crack down on the misclassification of 
workers as independent contractors?
    Answer 3. A central role of the Wage and Hour Division is to ensure 
that employers have clear guidance from the Department on how to comply 
with the FLSA. Using independent contractors is a lawful and 
longstanding business option for employers. However, I understand some 
employers may violate the law by inappropriately classifying an 
employee as an independent contractor. Employees incorrectly classified 
as independent contractors may be denied access to critical benefits 
and protections to which they are entitled under the law and negatively 
impact federal and state governments Employers who intentionally 
violate the FLSA undermine law-abiding employers that are paying their 
workers properly. If confirmed, I will work to fully and fairly enforce 
the laws within the Wage and Hour Division's jurisdiction, including 
laws prohibiting the misclassification of employees as independent 
contractors, to ensure the protection of both workers and law-abiding 
employers.
    Question 4. The Department of Labor has provided support to many 
states, including Pennsylvania, to provide assistance in studying 
systems to provide paid family leave. Will you and the Department of 
Labor continue to provide financial and technical assistance to states 
seeking to implement paid family leave?
    Answer 4. If confirmed, I look forward to reviewing this issue with 
staff from the Wage and Hour Division and stakeholders. I will 
certainly ask to be briefed on the support the Department provides to 
states such as Pennsylvania, in a continued effort to provide technical 
assistance to states.
    Question 5. Will you make the enforcement of equal pay laws a 
priority?
    Answer 5. If confirmed, I will fully and fairly enforce the laws 
within the jurisdiction of the Wage and Hour Division, including laws 
related to lawful pay.
    Question 6. Do you think that the Department of Labor's past 
enforcement of equal pay laws have been beneficial to women and their 
families?
    Answer 6. Pay discrimination on the basis of sex is unlawful. If 
confirmed, I will ensure the Wage and Hour Division enforces the laws 
under its jurisdiction fully and fairly to protect the rights of all 
Americans, including women and their families.
    Question 7. Do you support the Davis-Bacon and the payment of 
prevailing wages for public works projects? Will you fully enforce 
Davis-Bacon and resist efforts to weaken Davis-Bacon through regulation 
or legislation?
    Answer 7. The Davis-Bacon Act is the law. The Wage and Hour 
Division enforces the Davis-Bacon Act, and any modifications thereto 
must come from Congress. If confirmed, I look forward to briefings with 
my staff concerning how to most effectively and efficiently enforce and 
promote compliance with this law.
    Question 8. In April 2017, President Trump said that he was ``going 
to make an announcement in two weeks'' regarding Davis-Bacon. No 
announcement was made. Do you know what announcement or changes he was 
referencing?
    Answer 8. I have not spoken with the President concerning this 
comment, and do not know what the President did or did not intend to 
announce. As I referenced above, however, the Davis-Bacon Act is the 
law and, if confirmed, I look forward to briefings with Wage and Hour 
staff concerning how to most effectively and efficiently enforce and 
promote compliance with the law.
                            senator franken
    Question 1. During Secretary Acosta's confirmation hearing he was 
asked if he would continue the previous Administrations efforts to 
offer administrative interpretations to provide clarity when the 
meaning of a statute was too plain or unambiguous. He said, ``I support 
giving guidance to the regulated community to ensure compliance with 
the law'' and that ``I think there's a particular value to opinion 
letters.'' If confirmed, would you support the issuance of Wage and 
Hour administrative interpretations and opinion letters to provide 
clarity and guidance to the public?
    Answer 1. I agree with Secretary Acosta's testimony regarding the 
unique value in providing guidance to the regulated community to ensure 
compliance with the law. Opinion letters provide specific facts and 
circumstances and the Division's own interpretation to assist both 
employees and employers comply with the law. Because of the uniqueness 
of each opinion letter response and the lasting value, I support 
Secretary Acosta's relaunch of this program.
    Question 2. Worker misclassification is a growing problem that 
threatens workers and undercuts law-abiding employers. And worker 
misclassification is a significant problem in Minnesota, particularly 
in the construction industry. Why do you think worker misclassification 
is so prevalent?
    Answer 2. A central role of the Wage and Hour Division is to ensure 
that employers have clear guidance from the Department on how to comply 
with the FLSA. Using independent contractors is a lawful and 
longstanding business option for employers. However, I understand some 
employers may violate the law by inappropriately classifying an 
employee as an independent contractor. Employees incorrectly classified 
as independent contractors may be denied access to critical benefits 
and protections to which they are entitled under the law and negatively 
impact federal and state governments Employers who intentionally 
violate the FLSA undermine law-abiding employers that are paying their 
workers properly. If confirmed, I will work to fully and fairly enforce 
the laws within the Wage and Hour Division's jurisdiction, including 
laws prohibiting the misclassification of employees as independent 
contractors, to ensure the protection of both workers and law-abiding 
employers.
    Question 3. When it comes to the enforcement of worker 
misclassification violations, one of the biggest problems on the state 
and federal level is a lack of communication and coordination with 
investigations and the sharing of information between agencies. Does 
DOL plan to work with state and other federal enforcement agencies to 
ensure compliance and identify employers who misclassifying their 
employees?
    Answer 3. Employers who intentionally misclassify workers undermine 
law-abiding employers who are making contributions to these systems and 
paying their workers properly. If confirmed, I look forward to being 
briefed on matters pertaining to the classification of employees.
    Question 4. The misclassification of workers puts law-abiding 
employers at a competitive disadvantage, robs workers of protections 
such as workers compensation and unemployment insurance, and allows 
employers to avoid paying state and federal taxes. A 2009 Government 
Accountability Office (GAO) report estimated that independent 
contractor misclassification cost federal revenues $2.72 billion in 
2006.
      a. If confirmed, would you continue the Wage and Hour 
Division's past practice of identifying worker misclassification by 
specifically scrutinizing companies that classify workers as 
independent contractors?
      b. Do you agree that these efforts are important for the 
security of workers and to the nation's revenue stream?
      c. Is it fair to say that those employers who are paying 
unemployment taxes and worker's compensation premiums are also paying 
for employers who misclassify their employees?
      d. Is it possible that unemployment taxes and worker's 
compensation premiums could be reduced if some employers weren't 
misclassifying their employees and everybody was paying their fair 
share?
      e. If confirmed, would the Wage & Hour Division share 
information with the IRS to help identify employers who may be 
misclassifying their workers as independent contractors and avoiding 
their tax obligations?
    Answer 4. The use of independent contractors is a valuable business 
practice, and is legally permissible. However, in some circumstances, 
when an employer incorrectly treats a worker as an independent 
contractor instead of an employee, the employer may not be abiding by 
their responsibilities to compensate the worker according to the 
requirements of the law. Employees incorrectly classified as 
independent contractors may be denied access to critical benefits and 
protections they are entitled to by law. An important role of the Wage 
and Hour Division is to ensure that employers have clear compliance 
guidance from the Division. If confirmed, I will work to enforce the 
laws under the Wage and Hour Division's jurisdiction, including these 
employment laws, fully and fairly to ensure the protection of workers.
    Question 5. In 2015, the Wage and Hour division issued 
Administrative Interpretation No. 2015-1 to assist employers and 
workers by providing clarity as to when a worker is an employee and 
when they are an independent contractor. On June 7th Secretary Acosta 
withdrew this interpretation. If confirmed, how do you plan to provide 
clarity and guidance to employers and workers who have questions about 
their status as an employer, joint employer, or independent contractor?
    Answer 5. I support giving guidance to the regulated community to 
ensure compliance with the law. I believe this is essential for good 
governance. If confirmed, I look forward to being briefed on matters 
pertaining to the classification of employees and will work to enforce 
the laws under the Wage and Hour Division's jurisdiction, fully and 
fairly to ensure protection of all workers.
    Question 6. During our meeting in my office, you said that you 
weren't aware of internal discussion regarding the Department of 
Labor's overtime rule. Based on what you know now and the limited 
discussion you have had, what are your personal views on the overtime 
rule?Do you believe $47,000 is an appropriate threshold? Would you 
inform Congress if you believe that you need additional legal authority 
beyond your current authorization to set an appropriate overtime 
threshold?
    Answer 6. I believe that if confirmed as Wage and Hour 
Administrator I would not be there to impose my personal views on 
topics but rather to enforce the law set by Congress and I would 
certainly inform Congress if I believed there were legal limitations to 
what the Wage and Hour Division could do so that Congress could act as 
it deemed best with that information.
    Question 7. The federal minimum wage was last raised to $7.25 an 
hour, effective in 2009. By comparison, the value of the minimum wage 
peaked in 1968, and adjusted for inflation in today's dollars would be 
worth $11.03 per hour. Do you think it is fair that the American 
worker, earning minimum wage, has taken over thirty percent cut in pay 
due to fact the hourly wage rate has not kept up with inflation?
      a. Do you think the current federal minimum wage of $7.25 
is a fair or living wage?
      b. Would you support efforts to adjust the federal 
minimum wage to a living wage?
      c. Would you support efforts to regularly index the 
minimum wage to inflation?
    Answer 7. Congress sets the federal minimum wage and it is the duty 
of Wage and Hour Division to enforce the set minimum wage. Ultimately 
it is Congress' decision whether to raise the federal minimum wage and 
the Wage and Hour Administrator does not have the lawful ability to 
effectuate a change to the federal minimum wage. If confirmed, I will 
faithfully enforce the rate Congress enacts.
    Question 8. If confirmed, how would you address worker wage 
complaints filed against a large company, with sizable government 
contracts, with multiple operations across the country, and a history 
of labor violations?
    Answer 8. The determination concerning the best way to proceed with 
any particular matter will likely depend on the particular facts in 
each given case. If confirmed, I intend to fully and fairly enforce all 
laws that the Wage and Hour Division administers. This would include 
development of compliance assistance and enforcement strategies that 
are designed to have a broad impact on compliance.
    Question 9. Would you simply investigate those individual 
complaints, or would these circumstances trigger your agency to look 
beyond those individual complaints and see if there is a nationwide, 
systemic problem with this particular contractor?
    Answer 9. The determination concerning the best way to proceed with 
any particular matter will likely depend on the particular facts in 
each given case. If confirmed, I intend to enforce the law fully and 
fairly, including by enforcing individual complaints as part of a 
balanced enforcement strategy. This would include the development of 
compliance assistance and enforcement strategies that are designed to 
have a broad impact on compliance.
                           senator whitehouse
    Question 1. Regarding overtime salary thresholds, do you believe 
the salary threshold in 1975, which covered more than half of all full-
time salaried workers, applied to too many workers?
    Answer 1. If confirmed, I look forward to being briefed by the Wage 
and Hour Division staff on the FLSA, the history of the Division's 
updates to the FLSA, and the review of more than 160,000 comments 
received in response to the Request for Information.
    Question 2. In 2015, the salary threshold covered only 8% of full-
time salaried workers--do you believe that level of coverage is too 
low?
    Answer 2. If confirmed, this is an issue I will look at very 
closely and commit to examining the rule and the legal basis of the 
judge's decision invalidating the 2016 overtime rule.
    Question 3. The DOL's 2016 overtime rule updated the threshold to 
the 40th percentile of earnings of full-time salaried employees in the 
lowest-wage Census Region, resulting in a salary threshold of $913 per 
week or $47,476 per year--do you believe covering the 40th percentile 
of earnings for full-time salaried employees is an appropriate level?
    Answer 3. The Fair Labor Standards Act's overtime exemption salary 
threshold has not been updated since 2004. I look forward to briefings 
from the Wage and Hour Division staff on the Fair Labor Standards Act, 
the history of the Division's updates to the law, as well as from the 
Office of the Solicitor as to the legal authority the Division has, and 
the review of more than 160,000 comments received in response to the 
Request for Information as we develop the Department's regulatory 
policies and priorities.
    Question 4. Do you commit to not using non-commercial airplane or 
helicopter travel paid for at taxpayer expense?
    Answer 4. If confirmed, I commit to fully complying with all 
federal government travel policies.
                             senator warren
    Question 1. During your time as an attorney in the private sector, 
you defended large employers such as Domino's FedEx, and Barnes & Noble 
\1\1 from accusations that they violated wage-and-hour laws. How can 
workers count on your to protect them, rather than employers, as WHD 
Administrator position requires?
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    \1\ https://www.bgov.com/core/news/#!/articles/OW4HF73H0JK0
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    Answer 1. As an attorney in the private sector, my job was to 
advocate legal positions for my client, which I did. If confirmed as 
the WHD Administrator, I would enforce the laws Congress has passed to 
protect workers.
    Question 2. As Executive Director of South Carolina's Department of 
Employment and Workforce, were you responsible for any enforcement of 
wage-and-hour laws? If so, please describe those responsibilities in 
detail. If not, please list other experiences you have with the 
enforcement of wage-and-hour laws, if any.
    Answer 2. As Executive Director at the Department of Employment and 
Workforce, I was responsible for ensuring that agency was in compliance 
with the FLSA. While in private practice as a labor and employment 
lawyer, I spent approximately one-third of my time counseling 
individual employers. That counseling included providing guidance to 
clients to ensure they were in compliance with wage and hour laws or, 
if they were not in compliance, advising them how to comply while still 
achieving their business objectives.
    Question 3. South Carolina law allows the Department of Employment 
and Workforce to waive overpayments of unemployment insurance if the 
recipient was not at fault for the overpayment or if requiring payment 
would be against equity and good conscience.\2\ But you have said that 
you favor wage garnishment of employees who have received overpayments 
and that recoupments from overpayment rose from $300,000 to $8 million 
under your leadership at DEW.\3\ While you were Executive Director, did 
DEW garnish the wages of employees who received overpayments due to no 
fault of their own?
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    \2\ http://www.scstatehouse.gov/code/t41c041.php
    \3\ https://www.youtube.com/watch?v=8R8Bh8W-KsM
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    Answer 3. As a point of clarification, I favor the recoupment of 
money from claimants who received more benefits than they should--even 
in cases of administrative fraud--over prosecuting such individuals. 
One of the core missions of DEW is to ensure that the trust fund is 
adequately funded to ensure that all claimants eligible for 
unemployment insurance benefits receive payments and that if the money 
was improperly paid, it can be recouped so that eligible claimants can 
be paid--even in a time of recession.
    Moreover, no collection effort was conducted unless and until an 
overpayment determination was made, and the claimant had full 
opportunity to appeal the overpayment determination. During the 
overpayment determination and appeal, the claimant has the opportunity 
to present evidence to seek a waiver of repayment of the benefits paid 
to the claimant. During my tenure, we used involuntary wage 
withholdings (i.e., garnishments) from former claimants' paychecks only 
after the appeal process was complete and only after attempting to 
obtain repayment directly from the claimant through a variety of 
mechanisms including payment plans.
      a. Did you make individual assessments of the impact of 
the garnishment on families before you initiated the garnishment 
proceeding?
    Answer a. See above as to a claimant's opportunity to seek a waiver 
long before a collection effort of any kind is initiated. Moreover, DEW 
not only complies with United States Department of Labor minimum wages 
requirements for involuntary wage withholdings (IWW), but it actually 
has set a higher threshold of what an individual's wages must be in a 
quarter before IWW is used. Also, if the claimants call to ask that 
less than the full 25% permitted by law be deducted from their 
paychecks, DEW will negotiate with them on a case by case basis to set 
the amount to be deducted via IWW.
      b. Please describe how the use of this practice changed 
under your leadership of DEW.
    Answer b. The process for establishing an overpayment and for a 
claimant to seek a waiver has not changed. The IWW process is used only 
after other collection efforts have failed has not changed. The process 
for a claimant to negotiate a reduction in the IWW has not changed. We 
increased the number of IWW that DEW has sent to employers so to ensure 
the health of the trust fund for claimants who were lawfully entitled 
to benefits.
    Question 4. If you are confirmed, what metrics will you use to 
assess the effectiveness of your enforcement efforts?
    Answer 4. If confirmed, I look forward to being briefed by the Wage 
and Hour Division staff on all current measurement tools. Additionally, 
I will bring my experience and knowledge as the Executive Director of 
the South Carolina Department of Employment and Workforce to the 
Division.
    Question 5. In 2009, the Government Accountability Office released 
a report detailing the WHD's failure to properly process and 
investigate complaints.\4\ What lessons do you take from this report, 
and what will you do to ensure that the Division does not have similar 
problems under your leadership?
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    \4\ http://www.gao.gov/products/GAO-09-458T
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    Answer 5. If confirmed, I look forward to being fully briefed by 
the Wage and Hour Division staff about actions they have taken to 
address the findings described in the report. Further, I am committed 
to a balanced approach to achieve the Division's mission that includes 
a focus on customer service and responding to complaints.
    Question 6. President Trump has expressed criticism of the DOL 
Overtime Rule. Will you commit to defending the Rule, which would 
extend overtime protections for millions of American workers, in court, 
starting by appealing the injunction that is currently in place 
preventing implementation of this rule?
      a. If not, what are your specific plans for updating 
regulations so that only bona fide executives, rather than low-income 
workers, are exempt from overtime protections, as the FLSA requires?
    Answer 6 (a). I am sensitive to the fact that the overtime rule has 
not been updated since 2004. I look forward to briefings from the Wage 
and Hour Division staff on the Fair Labor Standards Act, the history of 
the Division's updates to the law, as well as from the Office of the 
Solicitor as to the legal authority the Division has, and the review of 
more than 160,000 comments received in response to the Request for 
Information as we develop the Department's regulatory policies and 
priorities
    Question 7. President Trump has taken several different positions 
on the federal minimum wage, including proposing to raise it to ten 
dollars. \5\ Considering that the minimum wage has not been raised in 
nearly a decade, \6\ and that a full-time minimum-wage worker earns 
less than the poverty line for a household of two, \7\ do you support 
any increase in the federal minimum wage? If so, approximately what 
level do you believe would be appropriate? If not, why not?
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    \5\ http://www.cnn.com/2016/07/27/politics/donald-trump-minimum-
wage/index.html/
    \6\ http://www.pewresearch.org/fact-tank/2017/01/04/5-facts-about-
the-minimum-wage/
    \7\ http://www.epi.org/publication/minimum-wage-workers-poverty-
anymore-raising/
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    Answer 7. Congress sets the federal minimum wage and it is the duty 
of Wage and Hour Division to enforce the set minimum wage. Ultimately 
it is Congress' decision whether to raise the federal rate. The Wage 
and Hour Administrator does not have the legal capacity to effectuate a 
change to the federal minimum wage. If confirmed, I will faithfully 
enforce the rate Congress enacts.
    Question 8. Do you believe that federal law should allow employers 
to pay employees with disabilities less than the minimum wage? If so, 
why? Should federal law also allow employers to pay any other groups 
less than the minimum wage?
    Answer 8. As stated at the hearing, I believe that if confirmed, I 
would not be acting as the Wage and Hour Administrator on a blank 
slate, but rather would enforce the laws that Congress has passed. 
14(c) of the FLSA remains a statutory requirement that the Wage and 
Hour Division must enforce and implement. It is the duty of the Wage 
and Hour Division to enforce the laws which Congress enacts. If 
confirmed, I look forward to being briefed by career staff who have 
expertise on the 14(c) subminimum wage issues. However, I will support 
efforts to assist individuals with disabilities achieve and maintain 
meaningful workforce participation.
    Question 9. I am concerned about DOL's duty to ensure that all 
employers are held accountable for abuses of their employees--including 
large corporations that try to shirk responsibility through franchises, 
over whose policies and balance sheets they maintain significant 
control. Will you hold parent companies responsible for violations of 
the minimum wage or overtime laws of the workers in their franchises 
where the parent company is legally culpable?
    Answer 9. This answer would be dependent on a specific set of facts 
of each given case. If confirmed, I will work to enforce the laws under 
the Wage and Hour Division's jurisdiction fully and fairly.
    Question 10. What are your specific plans to protect the rights of 
workers of franchised companies?
    Answer 10. If confirmed, I look forward to receiving input from the 
Wage and Hour Division staff and Congress to improve the working 
conditions and opportunities for all Americans. The determination 
concerning the best way to proceed with any particular matter will 
likely depend on the particular facts in each given case.
    Question 11. Workers' ability to collect back wages is a crucial 
part of the enforcement of Wage and Hour Laws. Yet reports indicate 
that some workers are turning down back pay because they fear 
deportation in light of President Trump's anti-immigrant policy and 
rhetoric.\8\
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    \8\ https://www.bna.com/workers-turn-down-n57982084889/
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      a. If confirmed, will you commit to investigating this 
phenomenon to determine whether workers are declining back pay because 
they fear deportation?
      b. If you find that this is taking place, what is your 
plan for ensuring that all workers who experience wage theft are able 
to access back wages, regardless of immigration status?
    Answer 11(a)(b). If confirmed, I look forward to being briefed by 
the Wage and Hour Division staff and learning more about these concerns 
and I will work to enforce the laws under the Division's jurisdiction 
fully and fairly, including wage and hour laws, to protect all workers' 
rights.
    Question 12. As you know, federal contractors have unique wage and 
hour obligations, such as those codified by the David-Bacon Act and the 
Service Contract Act. Now that Congressional Republicans and President 
Trump have rescinded the Fair Pay and Safe Workplaces Executive Order, 
what authorities does DOL have to ensure that contracting agencies have 
access to and can consider prior labor violations in procurement 
decisions (as federal law and acquisition regulation requires) \9\ Will 
you implement these authorities?
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    \9\ https://fas.org/sgp/crs/misc/R40633.pdf
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    Answer 12. I understand that the Wage and Hour Division has 
existing suspension and debarment authorities in the context of some 
statutes, including Davis-Bacon and the Service Contract Act. If 
confirmed, I look forward to being briefed on matters pertaining to 
this issue and will work to enforce the laws under the Wage and Hour 
Division's jurisdiction, full and fairly to ensure protection of all 
workers.
    Question 13. Existing Wage and Hour data indicate that violations 
of wage and hour laws are common among large federal contractors.\10\ 
What specific steps will you take to improve the enforcement of wage 
and hour laws among federal contractors?
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    \10\ https://www.warren.senate.gov/files/documents/2017-3-6--
Warren--Contractor--Report.pdf
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    Answer 13. If confirmed, I look forward to a briefing by the Wage 
and Hour Division staff on existing strategies that are being 
implemented. Additionally, I will bring my experience and knowledge as 
the Executive Director of the South Carolina Department of Employment 
and Workforce to the Division.
    Question 14. What steps will you take to assist contracting 
agencies in enforcing contractors' wage-and-hour obligations, such as 
through suspension and debarment proceedings?
    Answer 14. I understand that the Wage and Hour Division has 
suspension and debarment authorities in the context of some statutes, 
including the Davis-Bacon Act and the Service Contract Act. If 
confirmed, I look forward to being briefed on matters pertaining to 
this issue and will work to enforce the laws under the Division's 
jurisdiction full and fairly to ensure protection of all workers.
    Question 15. Some employers misclassify their employees as 
independent contractors in order to avoid wage and hour laws and other 
basic worker protections, paying taxes, and fair competition with other 
employers. In what specific ways should the Division improve its 
efforts to (a) identify misclassified workers and (b) conduct 
enforcement actions against employers that misclassify them?
    Answer 15. A central role of the Wage and Hour Division is to 
ensure that employers have clear guidance from the Department on how to 
comply with the FLSA. Using independent contractors is a lawful and 
longstanding business option for employers. However, I understand some 
employers may violate the law by inappropriately classifying an 
employee as an independent contractor. Employees incorrectly classified 
as independent contractors may be denied access to critical benefits 
and protections to which they are entitled under the law and negatively 
impact federal and state governments Employers who intentionally 
violate the FLSA undermine law-abiding employers that are paying their 
workers properly. If confirmed, I will work to fully and fairly enforce 
the laws within the Wage and Hour Division's jurisdiction, including 
laws prohibiting the misclassification of employees as independent 
contractors, to ensure the protection of both workers and law-abiding 
employers.
    Question 16. Will you continue all ongoing investigations at the 
Wage and Hour Division of DOL to ensure that workers will not suffer 
setbacks in their effort to recover lost wages as a result of the 
change in leadership?
    Answer 16. As a nominee, I do not have specific information about 
any ongoing enforcement matters. If confirmed, I intend to enforce the 
law fully and fairly.
    Question 17. Will you continue with debarment proceedings of 
Restaurant Associates to ensure that the workers who feed federal 
workers and Senate employees aren't cheated out of their wages and to 
ensure that federal taxpayer dollars are being used responsibly?
    Answer 17. It is my understanding from public reporting that this 
case recently closed with a compliance agreement and $1 million in 
back-pay payments. I have no information regarding internal 
deliberation about this enforcement action.
    Question 18. Will you continue with any other ongoing debarment 
proceedings?
    Answer 18. As a nominee, I do not have specific information about 
any ongoing enforcement matters. If I am confirmed, I will consult with 
Wage and Hour Division staff and the Solicitor's Office to determine 
the appropriate course of action for this an all other matters in 
litigation. I intend to enforce the law fully and fairly.
    Question 19. Will you promise to continue the Department's ongoing 
investigation of wage and hour violations at Wells Fargo?
    Answer 19. As a nominee, I do not have specific information about 
any ongoing enforcement matters. If I am confirmed, I will consult with 
the Wage and Hour Division staff concerning matters under investigation 
and will enforce the law fully and fairly.
    Question 20. Will you commit to enforcing wage and hour laws and 
regulations against The Trump Organization if the company violates 
these laws and harms its employees?
    Answer 20. If confirmed, I will enforce the laws under the 
jurisdiction of the Wage and Hour Division fully and fairly and 
regardless of association or ownership.
    Question 21. What is your specific plan for insulating yourself and 
WHD from conflicts of interest related to WHD actions that may impact 
the Trump Organization?
    Answer 21. If confirmed, I will enforce the laws under the 
jurisdiction of the Wage and Hour Division fully and fairly and 
regardless of association or ownership. Further, I will work with 
career ethics staff at the Department of Labor and the Office of 
Government Ethics to ensure any possible conflict of interest, if any, 
are addressed and handled appropriately.
    Question 22. Will you commit to closing the revolving door and 
preventing WHD employees from personally profiting from their 
activities at the Division?
      a. Will you prevent WHD employees from working on issues 
that directly impact a previous employer?
      b. 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 three or more 
years upon leaving federal service?
    Answer 22(a)(b). If confirmed, I work with career ethics staff at 
the Department of Labor and the Office of Government ethics to ensure 
that all the Division's employees comply with all ethics rules and 
laws.
    Question 23. Please describe your views on the role of Congress in 
conducting oversight of the Division.
    Answer 23. Performing oversight of the executive branch is a 
longstanding responsibility of Congress.
    Question 24. Will you commit to promptly and comprehensively 
answering any requests for information that you receive from any member 
of Members of the HELP committee?
    Answer 24. If confirmed, I will answer requests from all Members of 
Congress.
    Question 25. Will you treat requests for information from Majority 
Members of Congress differently than you will treat requests from 
Minority Members? If so, how?
    Answer 25. If confirmed, I will provide responses to requests for 
information from all Members of Congress.
    Question 26. Will you commit to maintain the public availability of 
all Wage and Hour enforcement data that is currently available online, 
including the ``Wage and Hour Compliance Action Data'' dataset?\11\
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    \11\ https://enforcedata.dol.gov/views/data--summary.php
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    Answer 26. Open data is a hallmark of good government. If 
confirmed, I intend to maintain the Wage and Hour Division's publicly 
available enforcement data.
    Question 27. What ideas do you have for improving the quality, 
accuracy, comprehensiveness, and availability of WHD compliance and 
enforcement data?
    Answer 27. With the guiding principle of transparency, if 
confirmed, I intend to learn from Wage and Hour Division staff about 
its data practices to improve the quality, accuracy, comprehensiveness 
and availability of its compliance and enforcement data.
                             senator kaine
    Question 1. The national minimum wage was last increased in 2007 to 
$7.25 an hour, an increase which went into effect in 2009.
      a. Do you believe that determinations regarding 
adjustments to the minimum wage and the frequency of such adjustments 
should take larger economic influencers such as inflation into account? 
Please explain.
      b. In your opinion, how frequently should the national 
minimum wage be reviewed?
      c. Do you support an increase in the national minimum 
wage? Yes or No? Please explain your reasoning.
      d. Do you think that it is appropriate for the Federal 
Government to set a minimum wage floor? Or do you think that this is a 
determination best left to the states? Please explain.
    Answer 1(a)(b)(c)(d). Congress sets the federal minimum wage and it 
is the duty of Wage and Hour Division to enforce the set minimum wage. 
The Wage and Hour Administrator does not have the lawful ability to 
effectuate a change to the federal minimum wage. If confirmed, I will 
faithfully enforce the rate Congress enacts.
                             senator hassan
    Question 1. You have said that one of the major challenges facing 
the Wage and Hour Division is how to handle the provision of the Fair 
Labor Standards Act which permits the payment of subminimum wage to 
individuals who experience disabilities. Often times, this type of 
employment occurs in a secluded environment known as a sheltered 
workplace. As you and I discussed in our one-on-one meeting, in 2015, 
with the support of the NH business community, New Hampshire was the 
first state to eliminate the payment of thesubminimum wage and there 
have been efforts in Congress to end this practice.
      a. Do you support individuals who experience disabilities 
being paid a subminimumwage?
      b. Would you work toward and support efforts to phase out 
this practice if confirmed as Wage and Hour Administrator?
    Answer 1(a)(b). It is the duty of the Wage and Hour Division to 
enforce the laws which Congress enacts. If confirmed, I look forward to 
being briefed by career staff who have expertise on the 14(c) 
subminimum wage issues. However, I will support any effort to assisting 
individuals with disabilities achieve the resources, training, or other 
support necessary to achieve and maintain meaningful workforce 
participation.
    Question 2. In 2008, a survey reported 68 percent of low wage 
workers not being paid what they were owed on at least one occasion in 
the previous week--a practice known as wage theft. Wage theft is 
estimated to rob workers of $15 billion every year.To address this 
issue--which no worker should have to face in 2017--the Wage and Hour 
Division has proactively investigated industries with a pattern of wage 
violations and high numbers of vulnerable workers. The Wage and Hour 
Division has also worked to launch more proactive investigations rather 
than relying solely on complaints from workers. As of last year, 50 
percent of all of the Division's investigations were proactive and the 
Division had recovered over $1.8 billion for workers.
      a. Will you continue to use data and to focus proactively 
on industries to ensure that workers are paid the wages they are owned?
      b. Will you commit to maintaining the fifty percent 
threshold of proactive investigations?
    Answer 2(a)(b). If confirmed, I would be responsible for enforcing 
the Fair Labor Standards Act and will work to enforce this and other 
laws under the Wage and Hour Division's jurisdiction fully and fairly. 
Wage and hour laws protect our nation's workforce and their abilities 
to provide for themselves and their families. I support strategic 
enforcement alongside individual complaints.
    Question 3. During our meeting, we discussed how worker 
misclassification is often use to exploit vulnerable individuals, many 
times in cases of undocumented workers. In cases like these, 
individuals may not report when they are being mistreated or choose to 
not seek medical care when hurt on the job out of fear of being 
deported.
    President Trump's aggressive tactics to deport individuals who are 
undocumented has resulted in lower crime reporting in a number of 
cities and will likely have a chilling effect on workers reporting 
employer violations as well.
      a. Do you believe that undocumented workers are protected 
by the Fair Labor Standards Act (FLSA)?
      b. If confirmed, how will you work to ensure that 
employers are held accountable for employee misclassification and that 
workers, included those who are undocumented feel empowered to report 
violations without fear of retaliation?
    Answer 3(a)(b). If confirmed, I will work to fully and fairly 
enforce the laws within the Wage and Hour Division's jurisdiction. This 
includes ensuring that all workplace protections are enforced 
regardless of workers' immigration status.
 Response by David G. Zatezalo to questions of Senator Murray, Senator 
Burr, Senator Casey, Jr., Senator Franken, Senator Whitehouse, Senator 
                       Warren, and Senator Kaine
                             senator murray
    Question 1. MSHA under the Obama Administration followed a roadmap 
for mine safety and health that aimed to implement the Mine Act to the 
fullest extent possible. This resulted in the safest years in mining 
history with the fewest deaths and injuries, the lowest respirable dust 
levels and silica levels in coal mines, and the strongest enforcement 
of miners' rights. Under your leadership, will MSHA continue to follow 
this approach to full implementation?
    Answer 1. MSHA has an important responsibility to promote miners' 
safety and health. If confirmed, I would ensure that the requirements 
of the Federal Mine Safety and Health Act are fully and fairly 
enforced.
    Question 2. MSHA completes health and safety compliance inspections 
on underground mines in the U.S. four times annually and on surface 
mines twice annually. During the Obama Administration, MSHA completely 
satisfied this requirement. Do you commit to ensuring this statutory 
requirement is met?
    Answer 2. Yes.
    Question 3. Twelve coal miners have died on the job in 2017, 
already 50 percent more fatalities than in all of 2016, with three 
months still left in the year. Please provide specific examples of the 
steps you will take to ensure MSHA enforcement efforts reduce 
fatalities.
    Answer 3. I will work with MSHA's enforcement staff to identify 
additional innovative strategies to reduce injuries and fatalities. 
These strategies will include a mix of enforcement, and compliance and 
technical assistance.
    Question 4. In your opinion, what is the role of compliance 
assistance within MSHA's mission to prevent death, illness, and injury 
from mining and promote safe and healthful workplaces for U.S. miners?
    Answer 4. Compliance assistance that includes outreach and training 
on MSHA's mandatory safety and health standards complements a rigorous 
enforcement strategy.
    Question 5. In your hearing you stated that your priority, if 
confirmed, would be to help the industry adopt new technologies sooner. 
Will you expand on which technologies you think the industry needs to 
adopt and how you will engage with the industry to achieve this 
objective?
    Answer 5. I believe that technology has the potential to improve 
miners' safety and health. For example, as I noted at my hearing, I 
believe that proximity detection is a technology that can improve 
miners' safety. If confirmed, I would work with staff to determine how 
this technology could be improved, for example by placing a sensor in 
the miner's cap lamp.
    Question 6. Do you have any suggestions for amendments to the Mine 
Safety and Health Act that Congress should consider in order to 
strengthen MSHA's enforcement authority?
    Answer 6. I do not have any specific suggestions at this time, but 
if confirmed I look forward to maintaining an open dialogue with you 
and your Congressional colleagues regarding all aspects of mine safety.
    Question 7. MSHA has been working on a new silica rule for a number 
of years. If you are confirmed, how soon will you aim to issue a 
proposed rule addressing miners' exposure to silica?
    Answer 7. If confirmed, I will meet with MSHA staff to discuss all 
possible policy, technology, and engineering options for addressing 
miners' exposure to respirable silica.
    Question 8. Will you commit to adopting the recommendations of the 
forthcoming National Academy of Science's report recommendations?
    Answer 8. If confirmed, I will commit to reviewing the forthcoming 
National Academy of Sciences' report recommendations and discussing all 
possible policy, technology, and engineering options with NIOSH.
    Question 9. How will you work to align MSHA's actions on silica 
with OSHA's 2016 silica rule?
    Answer 9. In discussing with MSHA and NIOSH staff all possible 
policy, technology, and engineering options for addressing miners' 
exposure to respirable silica, I would view OSHA's 2016 silica rule as 
an important consideration.
    Question 10. Do you intend to propose altering or revisiting the 
2013 final Pattern of Violations rule?
    Answer 10. The President has directed a review of all rules and to 
make determinations if any rules should be revised. Though I have no 
present reason to disturb this rule, if confirmed I will have an 
obligation to comply with the President's directive.
    Question 11. Will you defend the final 2013 Pattern of Violations 
rule in any legal challenge?
    Answer 11. If confirmed, I will consult the Department of Labor's 
Office of the Solicitor regarding all such matters.
    Question 12. Will you commit that the effective date of the Metal/
Nonmetal Examination Rule, published at 82 Fed. Reg. 7680 (Jan. 23, 
2017), will not be delayed further than June 2, 2018?
    Answer 12. As a nominee I cannot make an affirmative determination 
at this time; however, if confirmed I will strive to ensure that MSHA 
provides stakeholders with the requisite training and compliance 
assistance in advance of the June 2, 2018 date.
    Question 13. Which is more likely to prevent injury to miners: 1) 
workplace exams that occur before miners enter a mine or 2) workplace 
exams that occur as miners are entering a mine?
    Answer 13. MSHA has published a proposed rule that would address 
the timing of a workplace examination. If confirmed, I will review and 
give due consideration to comments and testimony received, and work 
with staff to determine an appropriate response to stakeholder 
comments.
    Question 14. Do you agree that the timing for inspections of metal 
and nonmetal mines should be aligned with the timing of inspections of 
underground coal mines? Or do you believe that some mines should be 
inspected before workers begin work and other mines can be inspected 
after workers are allowed to begin working?
    Answer 14. MSHA has published a proposed rule that would address 
the timing of a workplace examination. If confirmed, I will review and 
give due consideration to comments and testimony received, and work 
with staff to determine an appropriate response to stakeholder 
comments.
    Question 15. Will you commit to maintaining the requirement of the 
Metal/Nonmetal Examination Rule that mines be inspected before work 
begins?
    Answer 15. I believe it is important to allow the rulemaking 
process to conclude. If confirmed, I will review and give due 
consideration to comments and testimony received, and work with staff 
to determine an appropriate response to stakeholder comments.
    Question 16. Which specific statutory purpose of the Mine Safety 
and Health Act is furthered by the proposed modifications published at 
82 Fed. Reg. 42757 (Sept. 12, 2017)?
    Answer 16. As a nominee, I am not involved in the rulemaking 
process, but if confirmed I will give due consideration to comments and 
testimony received.
    Question 17. What were Rhino Eastern LLC's Eagle Mine #1 NFDL 
(Nonfatal Days Lost) injury incidence rates for each of the years 
during which you were CEO of Rhino Resource Partners? What percent 
larger or smaller were these rates than the national NFDL incidence 
rate in each year?
    Answer 17. The table below compares the NFDL injury incidence rates 
for the mine to which you refer.

                                                 NFDL--TABLE 1.
                                   Nonfatal Days Lost (Injury Incident Rates)
----------------------------------------------------------------------------------------------------------------
                Year                           Eagle Mine #1 NFDL                         Coal NFDL
----------------------------------------------------------------------------------------------------------------
                          2009 Q1-4                                 17.69                                  3.21
----------------------------------------------------------------------------------------------------------------
                          2010 Q1-4                                 14.99                                  2.90
----------------------------------------------------------------------------------------------------------------
                          2011 Q1-4                                 12.27                                  2.83
----------------------------------------------------------------------------------------------------------------
                          2012 Q1-4                                  5.28                                  2.70
----------------------------------------------------------------------------------------------------------------
                          2013 Q1-4                                  0.00                                  2.69
----------------------------------------------------------------------------------------------------------------

    NOTES:

      1. Rhino Eastern LLC began operating Eagle Mine #1 during 
November 2008 after rescuing it out of bankruptcy. I became CEO in 
September 2009.
      2. Eagle Mine #1 exhausted reserves and was sealed and 
closed during November 2013.
      3. Data excludes contractors; includes office workers.
    It is important to recognize, however, that a single mine 
considered in isolation does not necessarily reflect a company's 
overall safety record. Indeed, as a company Rhino's data for All Injury 
Rates and Fatalities during my tenure fell well below the industry 
average, as illustrated in the following table.

                                                    TABLE 2.
----------------------------------------------------------------------------------------------------------------
                Year                          All Rhino Properties                       All Mining
----------------------------------------------------------------------------------------------------------------
                               2009                                  2.17                                  3.01
----------------------------------------------------------------------------------------------------------------
                               2010                                  1.53                                  2.81
----------------------------------------------------------------------------------------------------------------
                               2011                                  1.64                                  2.75
----------------------------------------------------------------------------------------------------------------
                               2012                                  1.27                                  2.56
----------------------------------------------------------------------------------------------------------------
                               2013                                  1.36                                  2.49
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 
    Question 18. Why Did Eagle Mine #1 enter PPOV status in 2010? 
Please explain in detail what violations led to MSHA's decision to send 
a PPOV letter. Did Rhino Eastern LLC change its practices after MSHA's 
August 25, 2011 letter informing the company that Eagle Mine #1 had 
entered PPOV status for the second time? If so, what changes occurred? 
Please describe the specific ways in which you were involved with any 
such changes.
    Answer 18. In 2010, Eagle #1 mine was placed on a PPOV status 
because it met two of the three screening criteria MSHA applies. MSHA 
relied on enforcement data from September 1, 2009 to August 31, 2010 to 
determine the number and rates of enforcement actions cited to the mine 
during the timeframe. As a result of being placed on PPOV status I 
replaced the existing management. After a fatal injury in June of 2011, 
the VP for Rhino Eastern was unable to continue in those duties. I 
eventually replaced him with a retired MSHA District Manager, whereupon 
the mine continued on an acceptable improvement rate for safety 
measures.
    Question 19. Why did Eagle Mine #1 enter PPOV status for the second 
time in 2011? Please explain in detail what violations led to MSHA's 
decision to send a PPOV letter.
    Answer 19. In 2010, MSHA identified the Eagle #1 mine as exhibiting 
a PPOV, but MSHA did not issue a POV notice because the mine 
successfully reduced its Significant and Substantial (S&S) rates to the 
goals set forth in the mine's MSHA-approved corrective action plan.
    In August 2011, after the previously mentioned fatal injury, MSHA 
found that the S&S rate for the mine again increased. As a result, MSHA 
issued a second PPOV letter to the mine. At that time, I made several 
changes in the management of the operation.
    Question 20. How should MSHA deal with mine operators that 
repeatedly demonstrate a lack of concern for miners' safety and health?
    Answer 20. MSHA should continue to use the Agency's POV process to 
deal with mine operators who repeatedly demonstrate a lack of concern 
for miners' safety and health.
    Question 21. How significant a safety problem is created by 
advanced notice of MSHA inspections? How will you address this problem?
    Answer 21. Advanced notice of MSHA inspections is a serious 
violation. If confirmed, I will work with enforcement staff to 
determine how best to aggressively address this issue, which may 
include the use of targeted enforcement.
    Question 22. MSHA obtained an injunction against one of your mines, 
Cam Mine #28, in order to ensure your company not illegally tip your 
mines to clean up violations before inspectors arrived. This is a step 
that MSHA is rarely forced to take, and in fact, the injunction against 
your company was one of very few injunctions of this type that MSHA has 
had to seek since 2010. What was your responsibility for the advanced 
notice violation? What steps did you take in response to reports that 
your employees gave advanced notice of an MSHA inspection?
    Answer 22. CAM Mine #28 was one of approximately eighteen mines 
being operated by Rhino at that time. I generally visited the mine on a 
quarterly basis. In an effort to improve safety performance we had 
previously moved the superintendent from that mine to another 
operation. The replacement superintendent, hired from a different 
company, erroneously believed advanced notice was acceptable. After I 
and several other managers investigated this incident, we discharged 
this superintendent and conducted training for all employees of Mine 
#28 stressing the unacceptability of this practice.
    Question 23. What are the lessons MSHA and mine operators should 
learn from the Upper Big Branch disaster?
    Answer 23. The primary lesson from the UBB disaster is that 
management must remain ever vigilant in its approach to miners' safety 
and health, especially in regard to the mine ventilation system. In 
addition, management must seek input from miners, who must feel free to 
provide their input into improving safety and health.
    Question 24. Did you apply lessons learned from the Upper Big 
Branch disaster at the Eagle #1 mine you ran? If yes, please provide 
specific provide examples.
    Answer 24. After the Upper Big Branch disaster, I had our 
engineering and safety groups review all underground mine ventilation 
systems. I also instructed human resource staff to conduct spot reviews 
at underground mines to gauge employee relations with respect to 
feeling free to express concerns.
    Question 25. If confirmed, will you continue to ensure that miners 
have a voice by aggressively enforcing whistleblower protections?
    Answer 25. Yes.
    Question 26. How will you protect miners who make safety 
complaints, complain of discrimination, or refuse to work in unsafe 
conditions?
    Answer 26. I will work with staff to ensure that miners who make 
safety complaints, complain of discrimination, or refuse to work in 
genuinely unsafe conditions are protected from discrimination.
    Question 27. Do you believe the requirement that MSHA inspect each 
underground mine four times a year and each surface mine twice a year 
is adequate, or will you advocate for increased inspections?
    Answer 27. If confirmed, I will commit to ensuring that MSHA 
fulfills its statutory inspection mandate.
    Question 28. Do you believe that MSHA's current enforcement 
approach adequately identifies mines that need extra enforcement 
attention? Please explain.
    Answer 28. If confirmed, I will review MSHA's current enforcement 
approach to determine if it adequately identifies mines that need extra 
enforcement attention.
    Question 29. Between 1968 and 2015, 76,000 miners died from black 
lung disease, and miners continue to suffer and die from this 
devastating disease. MSHA finalized the Respirable Dust Rule in 2014 to 
help prevent black lung disease in miners. Do you intend to propose 
altering or revisiting the final 2014 Respirable Dust Rule?
    Answer 29. The President has directed a review of all rules and to 
make determinations if any rules should be revised. Though I have no 
present reason to disturb this rule, if confirmed I will have an 
obligation to comply with the President's directive.
    Question 30. President Trump's Budget proposal for FY18 included a 
cut of 21 percent below last year's enacted level to the Department of 
Labor. If confirmed, will you publicly advocate for maintaining current 
funding levels and for increased resources for MSHA enforcement 
activities?
    Answer 30. As a nominee, I did not participate in the development 
of the President's current budget proposal. If I am confirmed, I will 
work to maximize every dollar MSHA 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 MSHA.
    Question 31. While you were CEO of Rhino, one of your workers was 
subjected to degrading and humiliating comments, taunts, and slurs 
based on his Polish ancestry. Rhino was subsequently sued by the Equal 
Employment Opportunity Commission for violating Title VII of the Civil 
Rights Act by subjecting this worker to pervasive national origin 
discrimination and for retaliating against him when he reported the 
harassment. How can you assure miners across the country that as the 
head of MSHA you will protect them from retaliation for exercising 
their rights?
    Answer 31. Though the EEOC concluded its action approximately 
fourteen months after I retired as Chairman of Rhino, I am aware of the 
need to foster an environment in which employees feel comfortable 
voicing concerns without fear of retribution, and the Mine Act 
explicitly protects miners from retaliation when they report safety and 
health concerns. If confirmed, I will fully and fairly enforce Section 
105(c) of the Mine Act.
    Question 32. Were there other instances of worker complaints of 
unlawful discrimination at your company during the time that you were 
CEO or on the Board of Directors? Please describe your process for 
handling any such complaints.
    Answer 32. I established a toll-free number that we posted for all 
stakeholders to contact the Board of Directors of Rhino directly. The 
Audit Committee, consisting of all outside Directors, was charged with 
investigating any complaints.
    Question 33. Do you commit to inform the Members of this Committee 
if you intend to undertake any review or revision of any existing 
guidance?
    Answer 33. I am unable to commit at this time as I unfamiliar with 
MSHA's existing guidance.
    Question 34. What is your opinion about whether minority Members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of MSHA?
    Answer 34. It is my understanding that various committees and their 
Members, spanning both chambers of Congress, have jurisdiction over the 
Department of Labor and its constituent agencies, such as MSHA, 
including an oversight role in addition to legislative, budgeting and, 
in the case of the Senate, the advice and consent role for nominations.
    Question 35. If confirmed, do you agree to provide briefings on 
MSHA business to Members of the HELP Committee, including minority 
Members, if requested?
    Answer 35. If confirmed, I look forward to maintaining an open 
dialogue with you and your Congressional colleagues regarding all 
aspects of mine safety.
    Question 36. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual Members of the HELP 
Committee including request for MSHA documents, communications, or 
other forms of data?
    Answer 36. If confirmed, I will provide responses to all Members of 
Congress.
                              senator burr
    Question 1. What would you do as Assistant Secretary of Labor for 
Mine Safety and Health to ensure consistency in the enforcement and 
interpretation of agency regulations?
    Answer 1. I believe that enforcement and interpretation of MSHA's 
regulations must be consistent across all MSHA district and field 
offices. If confirmed, I will meet with staff to determine appropriate 
options to ensure consistent enforcement.
    Question 2. What steps would you take to ensure agency inspectors 
are adequately trained in the mining sectors they are assigned? More 
specifically, what would you do to ensure inspectors who primarily 
served in coal mining are trained and qualified to inspect aggregate 
mining operations?
    Answer 2. I believe that enforcement staff must be trained in the 
mining sectors to which they are assigned. If confirmed, I will meet 
with staff to determine appropriate options to ensure that MSHA's coal 
inspectors are trained to inspect aggregate mining operations, if 
required.
    Question 3. It is my understanding that MSHA is required to engage 
in a conferencing process with mine operators prior to the issuance of 
a citation. What steps would you take to ensure good faith pre-
assessment conferencing procedures?
    Answer 3. As a nominee viewing the process from the outside, I need 
to better understand MSHA's conferencing process. However, if 
confirmed, I will meet with staff to determine appropriate options to 
ensure that MSHA follows good-faith pre-assessment conferencing 
procedures.
                           senator casey, jr.
    Question 1. What are your top priorities for MSHA?
    Answer 1. My top my priority is the safety and health of the 
nation's more than 300,000 miners. Therefore, my top priority will be 
the completion of MSHA's statutorily mandated inspections. I further 
believe that miners' safety and health can be improved through faster 
adoption of innovative technology. I also will seek to expand training 
and technical assistance to ensure compliance with mandatory safety and 
health standards.
    Question 2. If confirmed, how would you measure the success of your 
tenure?
    Answer 2. I would measure success by ensuring that MSHA has the 
necessary resources and tools to carry out the Agency's mission to 
ensure miners' safety and health. I will also apply outcome goals and 
measures to assess MSHA's programs and determine if the Agency's 
strategic objective to prevent death, disease, and injury from mining 
is achieved.
    Question 3. What mine health and safety education have you received 
and from where did you receive this education?
    Answer 3. My extensive lifelong mine health and safety education 
began in 1974 with new miner's safety and health training at Consol's 
Blacksville #2 Mine in Wana, WV, followed by: Safety Systems training 
at West Virginia University while earning my BS in mining engineering 
in the 1970's; Behavioral Based Safety Training; first aid and mine 
rescue training; and foreman's certification training at AEP during the 
1980's and early 1990's. I furthered my education through NOSA Safety 
Systems Training in Melbourne, Australia with BHP in the late 1990's, 
as well as annual refresher training on all of the above in Kentucky, 
West Virginia, and Ohio. I obtain additional safety training and new 
laws training each year at various Professional Engineering seminars.
    Question 4. During the Bush Administration the Mine Safety and 
Health Administration failed to fulfill its statutory mandate under the 
Federal Mine Safety and Health Act to inspect every underground mine 4 
times per year, and every surface mine 2 times per year. This is known 
as the ``4s and 2s.'' In fact, MSHA's budget was cut so deep during the 
Bush Administration that MSHA did not even have enough qualified 
inspectors to carry out these inspections. Will you commit to that MSHA 
will implement this mandate to carry out the 4s and 2s every year?
    Answer 4. Yes. If confirmed, I would enforce the Mine Act, 
including mandatory inspections.
    Question 5. The Obama Administration took a number of steps through 
rulemaking and enforcement that protected the health and safety of coal 
miners, including those in the Commonwealth of Pennsylvania. 
Previously, MSHA failed to implement the ``Pattern of Violations 
requirement'' included in the Federal Mine safety and Health Act to 
ensure that serial violators will face elevated sanctions if they 
repeatedly place miners in harm's way by violating mandatory safety 
standards. That was fixed by MSHA after the Upper Big Branch Mine 
Disaster which killed 29 miners in the worst coal mine disaster in the 
US in 40 years. Will you commit to maintain, implement and enforce this 
rule and its implementing guidance?
    Answer 5. The President has directed a review of all rules and to 
make determinations if any rules should be revised. Though I have no 
present reason to disturb this rule, if confirmed I will have an 
obligation to comply with the President's directive.
    Question 6. The respirable dust rule implemented by MSHA and the 
industry will reduce the exposure of miners to coal dust that causes 
disabling lung diseases, like black lung. Will you commit to maintain 
this rule and fully enforce it?
    Answer 6. As I noted at my hearing, I support efforts to reduce 
black lung disease and believe that the respirable dust rule has been 
generally successful. The President has directed a review of all rules 
and to make determinations if any rules should be revised. Though I 
have no present reason to disturb this rule, if confirmed I will have 
an obligation to comply with the President's directive.
    Question 7. What are your plans to further protect miners from 
black lung?
    Answer 7. If confirmed, I will ensure that MSHA continues to work 
with NIOSH, and labor and industry, to reduce miners' exposures to 
respirable coal mine dust.
    Question 8. How will you assist families of miners impacted by 
black lung?
    Answer 8. MSHA has and will continue to work with DOL's Division of 
Coal Mine Workers' Compensation, also known as the Federal Black Lung 
Program, to assist miners' families impacted by black lung.
    Question 9. What are your plans to address the rising incidents of 
Progressive Massive Fibrosis?
    Answer 9. If confirmed, I will meet with NIOSH staff to discuss all 
possible policy, technology, and engineering options for addressing 
rising occurrences of PMF.
    Question 10. Please explain whether you think that miners 
exercising their ``walk around'' rights benefits the mine inspection 
process.
    Answer 10. Section 103(f) of the Mine Act provides that a miners' 
representative must be given an opportunity to accompany an MSHA 
inspector ``for the purpose of aiding'' an inspection and ``to 
participate in pre- or post-inspection conferences held at the mine.'' 
If confirmed, I would ensure that the requirements of the Mine Act are 
fully and fairly enforced.
    Question 11. Is the Compliance Assistance Program effective? Would 
it be more effective if MSHA were to increase its focus on Technical 
Support, Ventilation Surveys, and Roof Control Surveys?
    Answer 11. I believe that compliance assistance, especially 
compliance assistance provided to small mine operators who lack 
resources relative to larger mining concerns, is an effective strategy 
to ensure increased compliance with mandatory safety and health 
standards. In addition, I believe effective strategies that reduce the 
risk of injury and disease include ensuring that roof control and 
ventilation plans address hazards and that equipment, materials, and 
structures meet MSHA's standards. Compliance and technical assistance 
are complementary approaches, and both enhance enforcement to ensure 
compliance with MSHA's standards.
    Question 12. MSHA issued a rule to keep miners from being crushed 
by continuous mining machine. It is known as the Proximity Detection 
Rule, which requires operators to install equipment to automatically 
shut down the movement of the machine if a worker is caught in a zone 
where they can be crushed. Will you commit to maintain this rule and 
fully enforce it?
    Answer 12. I have no present reason to disturb this rule, as I 
support the use of innovative technology, such as proximity detection, 
to prevent accidents. However, the President has directed a review of 
all rules and to make determinations if any rules should be revised. If 
confirmed, I will have an obligation to comply with that directive.
    Question 13. The DOL issued a new Black Lung Benefits Act rule 
which improves the claims process to give black lung claimants better 
access to information and helps level the playing field. Will you 
commit to maintain and implement this rule?
    Answer 13. DOL's Division of Coal Mine Workers' Compensation, also 
known as the Federal Black Lung Program, is responsible for the 
implementation of this rule.
    Question 14. Will you advocate on behalf of coal miners and their 
health and pension benefits by pushing the Republican leadership in 
Congress and President Trump to pass and sign the Miners Protection 
Act?
    Answer 14. If confirmed, I look forward to maintaining an open 
dialogue with you and your Congressional colleagues regarding all 
aspects of mine safety, including specific legislation pending in both 
chambers of Congress.
                            senator franken
    Question 1. Some employer practices intended to promote safety are 
believed by experts to actually inhibit injury reporting. These include 
incentive programs where workers are rewarded if they, or their work 
team, does not suffer (i.e. report) an accident; policies which punish 
injured workers for vague rule violations like ``eyes not on task'' and 
``lack of situational awareness;'' as well as post-accident drug 
testing of injured workers whose judgement or actions could not have 
led to the accident.
    Question 1(a). Do you support these types of incentive programs and 
post-accident drug testing? If so, when do you believe they are 
appropriate, and when are they not appropriate?
    Answer 1. If confirmed, I would consider incentive programs on a 
case-by-case basis before making any determinations.
    Question 1(b). Should you be confirmed, would you take actions 
regarding these practices in an effort to promote more accurate injury 
data reporting?
    Answer 1(b). I support innovative actions that encourage accurate 
injury data reporting.
    Question 2. OSHA recently updated its silica dust standard, cutting 
the permissible exposure level limit in half. When asked about the 
rising number of black lung cases during your interview with HELP 
Committee staff, you said the rise in black lung cases could be related 
to silica dust exposure rather than coal dust exposure.
    Question 2(a). If confirmed, would you pursue a silica standard if 
evidence suggests miners are getting sick from silica dust exposure?
    Answer 2(a). If confirmed, I will consult all valid studies and 
evidence, including the forthcoming National Academy of Sciences' 
report, before formulating possible policy, technology, and engineering 
options for addressing miners' exposure to silica dust.
    Question 2(b). During your staff interview you also said you wish 
the technology existed to monitor silica dust exposure in real time, 
like coal dust is monitored with personal dust monitors (PDM). If 
confirmed, would you reach out to manufacturers to explore these types 
of technologies and how they could be useful in protecting miners?
    Answer 2(b). Yes.
    Question 3. On April 5, 2010 twenty-nine miners were killed in a 
coal dust explosion at Massey's Upper Big Branch mine. The mine 
disaster was the worst in the United States since 1970. According to 
the Charleston Gazette, ``MSHA, the Governor's Independent 
Investigation Panel, the West Virginia State Office of Miners Health, 
Safety and Training, and the United Mine Workers all agreed that the 
mine disaster was caused by a longtime pattern of safety violations by 
Massey Energy and by the insistence of CEO Don Blankenship that the 
company put coal production and profits ahead of safety protections for 
miners.''
    Question 3(a). During your interview with HELP Committee staff, you 
said that there are a few bad operators that give the mining industry a 
bad name. Was Don Blankenship one of those bad operators? Is Bob Murray 
of Murray Energy one of those bad operators?
    Answer 3(a). From what I have seen and read, it appears that 
Massey's leadership did not devote full attention to miners' safety and 
health.
    Question 4. Don Blankenship was convicted and sentenced to the 
maximum penalty allowable for a criminal mine safety violation of one 
year in prison and a $250,000 fine. Yet he continues to deny 
responsibility for the Upper Big Branch mine disaster and blames MSHA 
for the accident via his website.
    Question 4(a). Do you think that the penalty imposed on Don 
Blankenship of one year in prison and a $250,000 fine was an 
appropriate penalty for his role in the death of 29 miners?
    Answer 4(a). I am not sufficiently familiar with the specific facts 
in the criminal case to provide an informed conclusion on this 
question.
    Question 4(b). MSHA has the power to request criminal sanctions for 
especially egregious violations. If you were the Assistant Secretary 
for Mine Safety and Health at the time the Upper Big Branch report was 
released, would you have pursued those sanctions?
    Answer 4(b). I agree with MSHA's actions taken at that time.
    Question 4(c). Should Congress consider raising the potential 
penalty to determine operators from ignoring mine safety rules?
    Answer 4(c). I believe that this decision falls under the 
jurisdiction of Congress. If confirmed I look forward to maintaining an 
open dialogue with you and your Congressional colleagues regarding all 
aspects of mine safety, including specific legislation pending in both 
chambers of Congress.
    Question 5. Don Blankenship runs a website he calls ``The American 
Political Prisoner'' where he criticizes MSHA, mine safety 
investigators, the courts, judges, and elected officials.
    Question 5(a). Do you agree with Blankenship's claims that ``the 
Mine Safety and Health Administration (MSHA) likely caused the UBB mine 
explosion?''
    Answer 5(a). No.
    Question 5(b). Do you agree with Blankenship's claims that ``MSHA 
issued a false investigation report following the UBB mine Explosion?''
    Answer 5(b). No.
                           senator whitehouse
    Question 1. In litigation over MSHA's 2013 POV rule, the Ohio Coal 
Association and Kentucky Coal Association and other industry groups 
have argued in court that between 27% and 33% of all ``serious and 
substantial'' citations issued by MSHA inspectors are later vacated or 
modified. In your staff interview you said that you believe the error 
rate is more along the lines of 10%-is this still your view?
    Answer 1. Yes.
    Question 2. In the same suit, industry groups claim that because 
the rule allows MSHA to use citations instead of final orders as the 
basis for a pattern of violations mine owners are deprived of their due 
process rights. Citations are frequently challenged by owners in 
administrative proceedings that can take over a year to complete. If 
MSHA had to wait until citations were fully litigated to use them as a 
basis for its POV enforcement authority, dangerous conditions could 
linger for months without a corrective action plan. In your staff 
interview you indicated that you believe it is appropriate for MSHA to 
use citations to determine whether a mine should be subject to 
corrective action under the rule-is this still your view?
    Answer 2. Yes.
    Question 3. The prior rule required MSHA to give mine owners a 
warning, or ``potential pattern of violation'' notice, a procedural 
hurdle not required by law that in many cases would delay effective 
remediation of a mine. In your staff interview you disagreed with the 
argument that the 2013 rule, which eliminates the potential pattern of 
violation notice, would undermine incentives for mine owners to address 
safety concerns-is this still your view?
    Answer 3. Yes.
    Question 4. Do you commit to maintaining public access to all 
information currently available in the online Mine Data Retrieval 
System?
    Answer 4. Yes.
    Question 5. Do you commit to not using non-commercial airplane or 
helicopter travel paid for at taxpayer expense?
    Answer 5. If confirmed, I will fully comply with all Federal 
Government travel policies.
    Question 6. In your staff interview you said that you had no role 
in the decision to file the lawsuit against MSHA regarding the 2013 
PPOV rule by the Ohio Coal Association or the Kentucky Coal 
Association-is that still your recollection?
    Answer 6. Yes.
    Question 7. Will you recuse yourself from all matters related to 
Rhino Resource Partners LP or any of its or partly or wholly owned 
subsidiaries before MSHA?
    Question 7(a)1. Will you do so even if you are not required to 
under the ethics agreement you have with MSHA?
    Answer 7,7(a). If confirmed, I will fully comply with all Federal 
Government ethics policies, including conflict of interest policies, 
and will rely on the Department's Designated Agency Ethics Officer for 
guidance.
                             senator warren
    Question 1. A September Intelligencer/Wheeling News-Register story 
about your nomination reported that you view running MSHA as a 
``natural extension of [your] formal work in running a coal company.'' 
Is that an accurate portrayal of your views on this position?
    Answer 1. I believe that my leadership and operations expertise 
complements my earlier hands-on experience as a coal miner, mining 
engineer, and veteran of coal mine rescues.
    Question 2. Do you view the obligations of a mining executive and 
the MSHA Administrator as substantially different when it comes to 
miners' health and safety? Please explain.
    Answer 2. I believe both the mining executive and the MSHA 
Administrator have an obligation to ensure miners' safety and health.
    Question 3. If you are confirmed, what metrics will you use to 
assess the effectiveness of your enforcement efforts?
    Answer 3. If confirmed, I will use outcome goals and measures to 
assess MSHA's programs and determine if the Agency's strategic 
objective to prevent death, disease, and injury from mining are 
achieved.
    Question 4. MSHA recently expressed openness to settling a lawsuit 
by industry groups over MSHA's 2013 Pattern of Violations rule. Do you 
believe that the rule should be modified from its current form? Why or 
why not?
    Answer 4. The President has directed a review of all rules and to 
make determinations if any rules should be revised. Though I have no 
present reason to disturb this rule, if confirmed I will have an 
obligation to comply with the President's directive.
    Question 5. Considering that Rhino Resources received two Potential 
Pattern of Violation letters while you were CEO of the company, your 
involvement in future related rulemaking would create the appearance of 
impropriety, especially considering that the 2013 Pattern of Violations 
rule was designed to address problems like those at Rhino mines. In 
addition, the Kentucky Coal Association and the Ohio Coal Association 
challenged that rule in court while you were in the leadership of both 
organizations. If MSHA promulgates a new Pattern of Violation Rule, 
will you commit to recusing yourself from that rulemaking process?
    Answer 5. If confirmed, I will fully comply with all Federal 
Government ethics policies, including conflict of interest policies, 
and will rely on the Department's Designated Agency Ethics Officer for 
guidance.
    Question 6. Will you commit to advocating to President Trump and 
the Secretary of Labor on behalf of the MSHA budget?
    Answer 6. As a nominee, I did not participate in the development of 
the President's current budget proposal. If I am confirmed, I will work 
to maximize every dollar MSHA 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 MSHA.
    Question 7. If you believe that MSHA is underfunded or in any way 
under-resourced during your tenure, will you commit to informing the 
Members of the HELP Committee?
    Answer 7. Again, if I am confirmed, I will work to maximize every 
dollar MSHA is appropriated. My top priority will be the completion of 
MSHA's statutorily mandated inspections, and if I ever conclude that 
funding levels jeopardize this priority, I will be sure to alert the 
relevant stakeholders.
    Question 8. You referred in both your staff interview and your 
confirmation hearing to the importance and usefulness of research 
published by the National Institute for Occupational Safety and Health 
(NIOSH) for mine safety. But earlier this year, the Trump 
administration proposed a massive, 40 percent cut to NIOSH. Will you 
commit to advocating to President Trump and the Secretary of Health and 
Human Services on behalf of the NIOSH budget?
    Answer 8. As you indicate, NIOSH is part of the Centers for Disease 
Control and Prevention (CDC) within the U.S. Department of Health and 
Human Services (HHS); accordingly, those agencies are responsible for 
working with the Administration and Congress to ensure adequate funding 
to fulfill their mission.
    Question 9. If you believe that NIOSH's work related to mine safety 
is underfunded or in any way under-resourced during your tenure, will 
you commit to informing the Members of the HELP Committee?
    Answer 9. As part of the Centers for Disease Control and Prevention 
(CDC) within the U.S. Department of Health and Human Services (HHS), 
NIOSH officials are responsible for communicating their resource needs 
directly to the relevant policymakers.
    Question 10. Now that 22 miners have died on the job in 2017, there 
appears to be a major uptick in mining deaths this year, considering 
that there were no more than 30 fatalities in 2015 and 2016, 
respectively. At what point would you consider a rise in fatalities to 
be a trend that requires corrective action the part of MSHA?
    Question 10(a). What are your plans to address such an increase in 
fatalities?
    Answer 10,10(a). If confirmed, as an immediate priority I will meet 
with MSHA's enforcement staff to discuss trends in all injuries and 
fatalities to determine appropriate next actions.
    Question 11. As part of MSHA's new compliance assistance 
initiative, there are reports that inspectors have been required to 
leave behind their Authorized Representative cards while conducting 
inspections. Do you support this practice?
    Answer 11. The Obama Administration, though MSHA, created the 
Compliance Assistance Program after my retirement from the industry; 
accordingly, I do not have firsthand experience with it.
    Question 11(a). If so, why? If not, will you commit to ending it by 
publicly clarifying inspectors' responsibilities and authorities to 
issue violations when they observe unsafe conditions?
    Answer 11(a). It appears that the CAP initiative has not impeded 
MSHA's ability to conduct its statutorily mandated inspections of coal 
and metal/non-metal mines, which will be my top priority if confirmed.
    Question 12. Please describe your views on the role of Congress in 
conducting oversight of MSHA.
    Answer 12. It is my understanding that various committees and their 
Members, spanning both chambers of Congress, have jurisdiction over the 
Department of Labor and its constituent agencies, such as MSHA, 
including an oversight role in addition to legislative, budgeting and, 
in the case of the Senate, the advice and consent role for nominations.
    Question 13. Will you commit to promptly and comprehensively 
answering any requests for information that you receive from any member 
of Members of the HELP committee?
    Answer 13. If confirmed, I will provide responses to all Members of 
Congress.
    Question 14. Will you treat requests for information from Majority 
Members of Congress differently than you will treat requests from 
Minority Members? If so, how?
    Answer 14. If confirmed, I look forward to maintaining an open 
dialogue with you and your Congressional colleagues regarding all 
aspects of mine safety.
    Question 15. Will you commit to maintain the public availability of 
all MSHA enforcement data that is currently available online?
    Answer 15. Yes.
    Question 16. What ideas do you have for improving the quality, 
accuracy, comprehensiveness, and availability of MSHA compliance and 
enforcement data?
    Answer 16. I believe that MSHA must ensure that the Agency's 
compliance and enforcement data are accurate, comprehensive, and 
available to the public. If confirmed, I will meet with MSHA staff to 
determine appropriate options to improve the quality, accuracy, and 
comprehensiveness of MSHA's data.
                             senator kaine
    Question 1. Pattern of Violations was put in the Mine Act in 1977. 
In 2013, MSHA issued a rule to implement the law as it was intended and 
eliminating the Potential Pattern of Violations (PPOV). Now certain 
mine operators want to roll back the MSHA Pattern of Violations rule. 
Some want to relax its criteria for screening mines that might be 
placed on a Pattern of Violations sanction. In your staff interview you 
said that PPOV would not incentivize operators to come into compliance. 
Will you commit to keeping the MSHA Pattern of Violations rule and the 
criteria that has been developed?
    Answer 1. The President has directed a review of all rules and to 
make determinations if any rules should be revised. Though I have no 
present reason to disturb this rule, if confirmed I will have an 
obligation to comply with the President's directive.
    Response by Peter Robb to questions of Senator Murray, Senator 
             Whitehouse, Senator Kaine, and Senator Hassan
                             senator murray
    Question 1. If confirmed, in what ways would you as the General 
Counsel of the National Labor Relations Board (NLRB or Board) seek to 
strengthen worker protections?
    Answer 1. I would enforce the NLRA as enacted by Congress and 
interpreted by the NLRB and courts.
    Question 2. Since your previous tenure at the NLRB, we have seen 
huge changes in the economy, including increased numbers of part-time 
workers, contract workers, and temporary workers and more recently, the 
gig/on-demand economy. In your view, what if any challenges do these 
changes present to making sure workers' rights are protected under the 
National Labor Relations Act (NLRA), and how would you approach those 
challenges as General Counsel?
    Answer 2. The changing workplace often presents new challenges to 
the interpretation and application of the NLRA. If unfair labor 
practices involving such issues are filed, I would strive to ensure the 
charges are appropriately investigated, the laws applied to the facts 
and a proper disposition is achieved in a timely manner.
    Question 3. What is your view on the role of, and importance of, 
unions in our economy today? Do you believe that unions are crucial to 
our economy and fairness in the workplace?
    Answer 3. Unions have a central role under the NLRA in collective-
bargaining after an appropriate group of employees has freely chosen 
the union as their exclusive representative. As I have told the 
Committee, I view the NLRA as part of the foundation of the country's 
successful economic system.
    Question 4. You stated in your testimony that you hope to bring 
modern law firm practices to the NLRB. Please elaborate on the 
practices you would seek to bring to the agency.
    Answer 4. Modern technology has enabled private law firms to avoid 
duplication, inefficiency and unnecessary administrative actions. If 
confirmed, I plan to review current practices including sharing legal 
research, the use of forms and the ability to shift resources to meet 
short term demands to ensure best practices are utilized.
    Question 5. You have been a management-side attorney in private 
practice for the past several decades. During that time, you have 
represented employers who worked to maintain a positive relationship 
with their employees' union as well as employers who have hired you to 
help challenge and delay organizing drives and elections. You were also 
Chief Counsel to an NLRB member who was widely viewed as anti-union. 
Given this history, what do you point to as evidence that you will 
vigorously defend and enforce employees'rights to organize and engage 
in collective bargaining?
    Answer 5. Leaving aside the characterization of my ``history,'' my 
public sector experience at the Board as well as at the FLRA 
demonstrates that I have been, and can be, an effective advocate for 
enforcing rights protected by the Act. My private sector experience in 
negotiating labor contracts and resolving labor disputes shows that I 
have been, and can be, a proponent of collective bargaining.
    Question 6. During your years in private practice have you ever 
represented a worker or a union in a labor or employment case?
    Answer 6. Not to my recollection.
    Question 7. What is your view of precedent, and when is it 
appropriate for the NLRB to changeprecedent?
    Answer 7. In making determinations, the General Counsel should 
review legal precedent and give weight as appropriate in each 
circumstance. The Board sets precedent and decides when precedent 
should be changed.
    Question 8. Do you believe that it is ever proper for the General 
Counsel to ask the Board to overturn pro-worker precedent and thereby 
take rights away from employees? If so, under what circumstances?
    Answer 8. I have not prejudged any application of Board precedent, 
and it would be inappropriate for a candidate for the position of the 
NLRB General Counsel to comment on or set forth specific opinions on 
legal precedent or fact situations. Employees, unions and/or employers 
should not refrain from filing unfair labor practice charges where they 
have a legitimate belief that a violation has occurred because of 
general comments made by a candidate for the position of NLRB General 
Counsel.
    Question 9. If the Board were to change precedent, how will you 
protect the rights of all employees who have relied upon existing Board 
precedent?
    Answer 9. I will enforce the NLRA as written by Congress and 
interpreted by the Board and courts. As to specific applications please 
see my response to your question 8, above.
    Question 10. As General Counsel, you may be called upon to 
represent the Board in court to defend a decision whose rationale you 
do not agree with. How do you intend to handle thissituation?
    Answer 10. I will represent the Board consistent with the ethical 
responsibilities all attorneys have in representing clients.
    Question 11. Will you commit to recuse yourself from the defense of 
any Board decision that you are simultaneously seeking to have 
overruled?
    Answer 11. I will review all potential recusal situations with the 
Board's ethics attorneys and makean appropriate decision.
    Question 12. At times, the NLRB has found itself in conflict with 
the Solicitor General's office or other agencies with respect to what 
position the government should take before the Supreme Court. Do you 
believe that the NLRB has authority to represent itself before the 
Supreme Court?
    Answer 12. I've have not had occasion to examine this issue and 
consequently have no opinion.
    Question 13. Will you commit to defending the positions of the NLRB 
before the Supreme Court, evenwhere the Solicitor General's office has 
refused to do so?
    Answer 13. Please see my answer to your question 12, above.
    Question 14. Current Board law holds that mandatory arbitration 
agreements are invalid where they prohibit joint, class or collective 
litigation in any forum. Will you commit to awaiting the outcome of the 
current Supreme Court case before advocating a departure from current 
law?
    Answer 14. I have not prejudged this issue or any other issue that 
is or may become before the NLRB General Counsel or the Board, and 
therefore express no view.
    Question 15. Do you intend to retain the current practice of 
maintaining a list of priority issues that should be submitted to 
headquarters by the regional offices before issuing a complaint on 
those issues? If so, how will you make decisions regarding issues that 
should be added to or removed from the current list?
    Answer 15. If confirmed, it is likely the Division of Advice will 
continue to be used to provide guidance to Regions. I have not 
developed a list of priority issues or criteria for determining such a 
list. If confirmed, I will review any current list of priority issues.
    Question 16. The NLRB General Counsel is responsible for ensuring 
the smooth and efficient functioning of the agency and overseeing the 
management of the agency's 1,500 employees. However, the Trump 
Administration has proposed cuts to the agency budget. Will you 
publicly advocate for restoration of funding and increased resources 
for the NLRB?
    Answer 16. If confirmed, I will provide information to the 
Administration and Congress to enable them to evaluate the impact of 
any proposed budget, as other NLRB General Counsels have.
    Question 17. The NLRA has frequently been criticized for weak 
remedies that do not deter employersfrom committing unfair labor 
practices. What steps will you take to ensure the NLRA effectively 
remedies and deters unfair labor practices?
    Answer 17. If confirmed, I will evaluate each case and strive to 
develop an effective remedy within the framework of the Act for 
violations.
    Question 18. Do you believe the investigative timelines currently 
in place are appropriate?
    Answer 18. If confirmed, I plan to examine the timeliness of case 
processing. I'm not yet in a position to judge whether cases are being 
processed appropriately.
    Question 19. Do you believe that investigative subpoenas are an 
important investigative tool for the NLRB's field offices?
    Answer 19. Investigative subpoenas are appropriate in some 
circumstances. It depends on the facts of each case.
    Question 20. What criteria do you intend to use in determining 
whether to seek preliminary injunctions against unfair labor practices?
    Answer 20. Generally, 10(j) relief has been sought in cases where 
the Board believes it will be left without an effective remedy if 
immediate relief is not secured. If confirmed, I would generally follow 
that doctrine and review all other criteria developed by the Board in 
seeking Board approval for 10(j)s.
    Question 21. One of the most important functions of the NLRB 
General Counsel is to investigate situations where employers have 
broken the law and workers are suffering immediate harm. In recent 
years, the NLRB General Counsel has successfully sought such relief in 
cases where employers illegally fired union activists. These include 
cases like El Super in California, where the NLRB won an injunction to 
get union activist Fermin Rodriguez his job back, and Affinity Medical 
Center in Ohio, where the NLRB won an injunction to get a nurse and 
union activist--Ann Wayt--her job back. What is your view of the 
importance of the 10(j) program? Will you commit to vigorously pursuing 
cases under that program? Under what circumstances is it necessary to 
seek 10(j) relief?
    Answer 21. The ability to security 10(j) relief is part of the 
framework of the Act and should be used where appropriate. Please see 
also my response to your question 20, above.
    Question 22. Do you intend to continue the initiatives of the past 
three General Counsels in seeking more injunctions in organizing-drive 
and first-contract-bargaining cases?
    Answer 22. I do not know how often such injunctions have been 
utilized. I have not formulatedmy own initiatives.
    Question 23. Do you believe that it is important for the NLRB to 
engage in public outreach about its activities and initiatives? If 
confirmed, which outreach programs or initiatives do you intend to 
promote?
    Answer 23. If confirmed, I would make public initiatives and 
activities of the General Counsel's office as appropriate. I have not 
developed any specific plans in this area.
    Question 24. Do you think that when an employer shares or has the 
ability to co-determine an employee's essential terms and conditions of 
employment that it matters whether the control is actually exercised?
    Answer 24. I believe it would be inappropriate for me to answer 
this question because it involves issues that are before the General 
Counsel and/or the Board and are likely to be considered in the future. 
I have not prejudged any issues.
    Question 25. Upon the filing of meritorious charges, will you 
continue to issue complaints against employers possessing only indirect 
control over workers who have filed the unfair labor practice charges 
unless and until current Board law (articulated in Browning Ferris 
Industries) is modified?
    Answer 25. Please see my answer to your question 24, above.
    Question 26. Currently, there are a number of high-profile joint-
employer cases pending, including the NLRB's consolidated complaint 
against McDonalds. If confirmed, how do you intend to prosecute these 
cases going forward?
    Answer 26. I have no knowledge of the status of these cases. Please 
see also my answer to your question 24, above.
    Question 27. Upon the filing of meritorious charges, will you 
continue to issue complaints against employers who prohibit non-
worktime use of their email systems for protected activity unless and 
until current Board law (articulated in Purple Communications) is 
modified?
    Answer 27. Please see my answer to your question 24, above.
    Question 28. Current precedent on deferral of unfair labor practice 
charges to collectively bargained procedures is set forth in Babcock & 
Wilcox Const. Co., 361 NLRB No. 132 (2014). Doyou agree with the 
analysis of the Board in this case?
    Answer 28. Please see my answer to your question 24, above.
    Question 29. You have referred to the NLRB's 2014 rule that 
streamlined the union election process as the ``long-dreaded ambush 
election rules.'' In the past two-plus years, elections held before the 
NLRB have occurred at a noticeably faster pace because of the NLRB's 
recent changes to its election rules. Under the Government Performance 
and Results Act, the NLRB currently reports the percentage of elections 
held within 56 days of the filing of a petition. Do you intend, in 
consultation with the Board, to revisit and lower this number?
    Answer 29. I have no intentions one way or the other on this issue 
at this point.
    Question 30. Do you intend to instruct regional offices to change, 
in any respect, the way in which they process representation cases? If 
so, please state the intended changes.
    Answer 30. Please see my answer to your question 29, above.
    Question 31. Will you commit to continuing the efforts of your 
predecessor to supervise the effective implementation of the recent 
changes to the Board's election rules?
    Answer 31. I have not reviewed and analyzed General Counsel 
Griffin's efforts.
    Question 32. You represented Dominion Energy in an organizing 
campaign by the workers at Millstone Power Station in Connecticut. Your 
firm's website states that ``the employer won the election which took 
place more than two years after the day the petition was filed.'' It 
also notes that you led an effort to delay this campaign, including 34 
days of hearings that contested 80 different employee classifications.
    Question 32(a). Given your personal experience with slowing down 
elections, please explain what steps you will take to hold companies 
accountable if they violate workers' rights during an organizing 
campaign?
    Answer 32,32(a). If confirmed, I will apply the decisions of the 
Board and courts after review and consideration of all the facts 
including appropriate remedies for alleged unfair labor practices.
    Question 32(b). Do you believe that this election would have 
occurred more quickly under the NLRB rules that are currently in 
effect?
    Answer 32(b). No.
    Question 32(c). Do you believe that would have been unfair to the 
employer in this case?
    Answer 32(c). Not applicable.
    Question 32(d). What in your mind does it mean to ``win'' an 
election?
    Answer 32(d). Unions typically consider they win an election if a 
majority of the eligible voters have voted yes for union 
representation. Employers typically consider that they have won an 
election if a majority of the eligible voters have not voted yes for 
union representation.
    Question 33. According to its public filings, Dominion Energy paid 
$138,658 to consultants from Labor Information Services during the 
union organizing drive.
    Question 33(a). Were you aware of these expenditures?
    Answer 33,33(a). No.
    Question 33(b). Did you provide any services to Dominion Nuclear in 
connection with their reporting obligations for ``persuader'' 
consultants under 29 U.S.C. 433?
    Answer 33(b). No.
    Question 33(c). Did you collaborate in any way with the Labor 
Information Services consultants?
    Answer 33(c). I'm not familiar with the name Labor Information 
Services. I was aware that the company used consultants. I was retained 
to provide legal services in connection with the representation 
proceedings before the Board. The attorney-client relationship prevents 
me from providing specific information about that representation.
    Question 33(d). Did you encourage or discourage Dominion to employ 
these consultants?
    Answer 33(d). Please see my answer to your question 33.c., above.
    Question 33(e). Did you ever discuss the work of the Labor 
Information Services consultants with any Dominion official? Please 
describe any such discussions in detail.
    Answer 33(e). Please see my answer to your question 33.c., above.
    Question 34. Have you ever provided legal services to an employer 
that also employed the services of ``persuader'' consultants for which 
the employer was required to file a report pursuant to 29 U.S.C. 433?
    Answer 34. Yes.
    Question 35. What is your view as to the appropriate role of 
appellate court precedent in cases before the Board?
    Answer 35. In processing cases, the General Counsel should consider 
all precedent and argue as appropriate to the Board.
    Question 36. Do you believe that the NLRB should continue or change 
its current policy of declining to acquiesce in the ruling of a single 
court of appeals on a labor-law issue? If you believe that policy 
should be changed, please explain what position you believe the agency 
should take.
    Answer 36. I have not had occasion to review that policy in decades 
and therefore have no opinion.
    Question 37. Do you agree with current case law that nonunion 
workers have the right to strike?
    Answer 37. Employees do not have to be members of a union to engage 
in activity protected by the Act or to refrain from such activity. I 
have not pre-judged any Board cases, and it would be inappropriate for 
me to comment on specific issues.
    Question 38. Assume fast-food workers go on a one-day strike on 
January 1, then another one-day strike on February 1. Aside from the 
timing of the strikes, there are no facts that could render either 
strike unprotected. In your opinion is the second strike protected or 
unprotected?
    Answer 38. I have not pre-judged any Board cases, and it would be 
inappropriate for me to comment on specific cases or issues that have 
been, or may be, placed before the General Counsel.
    Question 39. Please state your view on whether the NLRA prohibits 
unions from enacting stationary displays in front of ``secondary'' 
targets, and, if so, why such a prohibition on speech is 
constitutional.
    Answer 39. Please see my answer to your question 38, above.
    Question 40. Please state your view on whether the NLRA prohibits 
unions from non-coercively asking the employees of ``secondary'' 
employers to engage in strikes, and, if so, why such a prohibition on 
speech is constitutional.
    Answer 40. Please see my answer to your question 38, above.
    Question 41. Do you believe employers should be permitted to 
discharge employees for ``disloyalty'' even when the employees' speech 
is truthful, accurate, and discloses no confidential employer 
information?
    Answer 41. Please see my answer to your question 38, above.
    Question 42. The current General Counsel has opined that 
misclassification of employees is an unfair labor practice in an advice 
memorandum in the Pacific-9 Trucking case. Do you agree? Why or why 
not?
    Answer 42. Please see my answer to your question 38, above. In 
addition, I have not reviewed and analyzed that memorandum.
    Question 43. Do you agree with current Board law with respect to 
assertion of jurisdiction over Indian tribal enterprises?
    Answer 43. Please see my answer to your question 38, above.
    Question 44. Congress is currently considering legislation that 
would change the law on NLRB jurisdiction over Indian tribal 
enterprises. Will you commit to respecting the results of that 
legislative process and not seeking to alter current law 
administratively?
    Answer 44. I will follow the laws properly enacted by Congress. As 
to specific legislation, please see my answer to your question 38, 
above.
    Question 45. The NLRA has been held to preempt most state laws in 
the field of labor relations. Are there any current state or local laws 
that you believe are preempted?
    Answer 45. I have not had occasion to review any preemption issues 
in decades and have no opinion. Please see also my answer to your 
question 38, above.
    Question 46. Do you believe that states may grant collective-
bargaining rights to workers not covered by the NLRA?
    Answer 46. I believe states have done so, but I have not analyzed 
such laws.
    Question 47. Undocumented immigrants are protected by the NLRA, but 
simultaneously barred from receiving backpay. What initiatives do you 
intend to pursue to deter employers from committing unfair labor 
practices against such employees?
    Answer 47. I have not developed a set of initiatives.
    Question 48. The current General Counsel has undertaken several 
initiatives to provide remedies for undocumented workers, including 
providing assistance to obtain visas and seeking conditional 
reinstatement of employees, which would take effect when they obtain 
valid work authorization. Will you commit to continuing these 
initiatives?
    Answer 48. Please see my answers to your questions 38 and 47, 
above.
    Question 49. In a memorandum, the current General Counsel has asked 
the Board to hold that employers may no longer unilaterally withdraw 
recognition from unions based upon alleged loss of majority support, 
but must instead petition the Board for an election. Do you agree with 
this analysis? If not, why not?
    Answer 49. I have not analyzed that memorandum and have no opinion.
    Question 50. Under which circumstances should the General Counsel 
or Regional Directors seek a Gissel bargaining order?
    Answer 50. Please see my answer to your question 38, above.
    Question 51. You have indicated your intent to continue to hold 
certain individual securities pursuant to the de minimus exemption 
found at 5 CFR 2640.202. While this exemption generally applies to 
holdings under $15,000, it is possible that if you are confirmed as 
General Counsel of the NLRB some of these entities could come before 
you. Do you agree to recuse yourself from any matter involving a party 
in which you hold a financial interest pursuant to this regulation?
    Answer 51. If confirmed, I will consult with the Board's ethics 
attorneys and make an appropriate decision.
    Question 52. Do you commit to inform the Members of this Committee 
if you intend to undertake any review or revision of any existing 
guidance?
    Answer 52. I'm not aware that the NLRB General Counsel is required 
to inform Congress before issuing guidance. If confirmed, I will seek 
guidance and formulate an appropriate response to any requests from 
Congress.
    Question 53. What is your opinion about whether minority Members of 
the Health, Education, Labor, and Pensions (``HELP'') Committee have 
the authority to conduct oversight of the NLRB?
    Answer 53. I have not analyzed that issue and have no opinion.
    Question 54. If confirmed, do you agree to provide briefings on the 
NLRB to Members of the HELP Committee, including minority Members, if 
requested?
    Answer 54. If confirmed, I will seek guidance and formulate an 
appropriate response to any requests from Congress. I recognize the 
important oversight role Congress performs and intend to be responsive 
to requests from both majority and minority Members.
    Question 55. If confirmed, do you commit to answer promptly any 
letters or requests for information from individual Members of the HELP 
Committee including request for NLRB documents, communications, or 
other forms of data?
    Answer 55. Please see my response to your question 54, above.
                           senator whitehouse
    Question 1. Please list the most significant case in which you 
successfully advocated for the rights of employees or a union that 
brought a claim before the NLRB. Why was that case significant to you?
    Answer 1. The cases I have litigated as counsel for General 
Counsels based on unfair labor practice charges filed by employees and 
unions were numerous and many years ago. I have no access to those 
records and cannot rank them by significance.
    Question 2. Do you commit to not using non-commercial airplane or 
helicopter travel paid for at taxpayer expense?
    Answer 2. If confirmed, I will follow the rules and regulations 
with respect to travel and expense reimbursement.
                             senator kaine
    Question 1. 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.
    The general counsel of the NLRB has significant discretion over how 
vigorously the decisions of the board, including the new joint employer 
standard, are enforced. The general counsel is also the chief 
prosecutorial officer at the NLRB and the key decision-maker regarding 
the issuance of complaints, enforcement priorities, the legal theories 
that should be pursued in a given case, and the content of legal 
memoranda for staff and the public. Given these responsibilities, the 
general counsel also plays an important role in setting legal policy 
for the NLRB regional directors and influencing the manner in 
whichemployers and employees seek to comply with the law.
    Question 1(a). What factors would you consider in deciding whether 
or not to issue a complaint?
    Answer 1,1(a). I would expect Regions would fully investigate all 
unfair labor practice charges, review all applicable decisions of the 
Board and courts as well as General Counsel guidance, seek guidance 
from the Division of Advice as appropriate, and attempt to effectuate 
an appropriate settlement before deciding whether a complaint should 
issue.
    Question 1(b). More specifically, what factors would you consider 
in deciding whether or not to name a company as a joint employer in a 
complaint?
    Answer 1(b). I have not pre-judged any Board cases, and it would be 
inappropriate for me to comment on specific cases or issues that have 
been, or may be, placed before the General Counsel or the Board.
    Question 1(c). If confirmed as general counsel, would you advocate 
for a review of the new joint employer standard? Do you feel that the 
board's approach to this issue in Browning-Ferris was appropriate? 
Please explain.
    Answer 1(c). Please see my answer to your question 1.b., above.
    Question 1(d). What would be your top five enforcement priorities 
in your role as general counsel?
    Answer 1(d). I have not developed any enforcement priorities.
    Question 2. 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 2. The impact of the scope of the definition of employer on 
collective bargaining would depend on the facts and circumstances of 
each case.
    Question 2(a). What challenges could arise from more liberal 
interpretations of what constitutes an appropriate bargaining unit or 
an employer?
    Answer 2(a). The impact of the Board's determination of an 
appropriate unit for collective bargaining will depend on the facts of 
each case.
    Question 2(b). In your opinion, would such interpretations of the 
NLRA ultimately put employees in stronger or weaker bargaining 
positions?
    Answer 2(b). A union's bargaining strength will depend on the facts 
of each case.
    Question 2(c). In your opinion, what effect, if any, would such 
interpretations of the NLRA haveon franchises, staffing agencies, and 
the way that such entities approach business operations?
    Answer 2(c). I have not analyzed franchise or staffing agency 
employer issues and have no opinion.
                             senator hassan
    Question 1. Mr. Robb, as I'm sure you know, the issue of 
misclassification of employees as ``independent contractors'' has come 
up over and over again. We have seen misclassification lawsuits 
regarding drivers who were told they were independent contractors, and 
not employees; in many of these cases, the drivers were actually found 
to be employees.
    Question 1(a). 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 its drivers were employees.
    Question 1(b). If confirmed, you will have ability to determine 
whether similar complaints of employee misclassification is brought 
before the NLRB.
    Answer 1,1(a),1(b). I am not familiar with the settlement 
referenced in the statement.
    Question 2. Have you represented any employers facing allegations 
of misclassification, either at the NLRB or elsewhere?
    Answer 2. I have represented employers in cases involving whether 
workers should be considered employees within the definition of the 
Act.
    Question 3. I understand that you can't speak to any specific 
cases, but do you agree that misclassifying employees as independent 
contractors illegally interferes with workers' right to form unions or 
act collectively?
    Answer 3. I have not pre-judged any Board cases and it would be 
inappropriate for me to comment on specific cases or issues that have 
been, or may be, placed before the General Counsel or the Board.
    Question 4. If you are confirmed, what steps will you take as the 
General Counsel to curb the practice of misclassification?
    Answer 4. I have not developed specific steps that I would take if 
confirmed.
    Question 5. Worker misclassification is often use to exploit 
vulnerable individuals, many times incases of undocumented workers. In 
cases like these, individuals may not report when they are being 
mistreated or choose to not seek medical care when hurt on the job out 
of fear of being deported. They may also choose to not engage in 
employee organizing, though they have the right to do so.
    Question 5(a). President Trump's aggressive tactics to deport 
individuals who are undocumented has resulted in lower crime reporting 
in a number of cities and will likely have a chilling effect on workers 
reporting employer violations as well.
    Answer 5,5(a). I have no comment on this statement.
    Question 6. Do you believe that undocumented workers are protected 
by the National Labor RelationsAct?
    Answer 6. Please see my answer to your question 3, above.
    Question 7. If confirmed will you work to ensure that these workers 
are knowledgeable of their rights under the law?
    Answer 7. If confirmed, I will review the ways in which workers may 
become aware of the Act and consult with the Board if I believe changes 
are indicated.

    [Whereupon, at 4:30 p.m., the hearing was adjourned.]

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