[Senate Hearing 115-789]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 115-789

                       NOMINATION OF JOHN F. RING
                         TO BE A MEMBER OF THE
                     NATIONAL LABOR RELATIONS BOARD

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

                                HEARING

                                OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                                   ON

EXAMINING THE NOMINATION OF JOHN F. RING, OF THE DISTRICT OF COLUMBIA, 
          TO BE A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD

                               __________

                             MARCH 1, 2018

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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                    U.S. GOVERNMENT PUBLISHING OFFICE                    
28-881 PDF                  WASHINGTON : 2020                     
          
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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			MICHAEL F. BENNET, Colorado
	SUSAN M. COLLINS, Maine			TAMMY BALDWIN, Wisconsin
	BILL CASSIDY, M.D., Louisiana		CHRISTOPHER S. MURPHY, Connecticut
	TODD YOUNG, Indiana			ELIZABETH WARREN, Massachusetts
	ORRIN G. HATCH, Utah			TIM KAINE, Virginia
	PAT ROBERTS, Kansas			MAGGIE HASSAN, New Hampshire
	LISA MURKOWSKI, Alaska			TINA SMITH, Minnesota
	TIM SCOTT, South Carolina		DOUG JONES, Alabama                                                                          
	                                         
	               David P. Cleary, Republican Staff Director
	         Lindsey Ward Seidman, Republican Deputy Staff Director
	                  Evan Schatz, Democrat Staff Director
	              John Righter, Democrat Deputy Staff Director

                            
                            
                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                        THURSDAY, MARCH 1, 2018

                                                                   Page

                           Committee Members

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, 
  Labor, and Pensions, Opening statement.........................     1
Murray, Hon. Patty, Ranking Member, a U.S. Senator from the State 
  of Washington, Opening statement...............................     2

                               Witnesses

Ring, John F., Washington, DC....................................     4
    Prepared statement...........................................     6

 
                       NOMINATION OF JOHN F. RING                       
                         TO BE A MEMBER OF THE
                     NATIONAL LABOR RELATIONS BOARD

                              ----------                              


                        Thursday, March 1, 2018

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:04 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Lamar 
Alexander, Chairman of the Committee, presiding.
    Present: Senators Alexander [presiding], Isakson, Cassidy, 
Hatch, Murray, Bennet, Baldwin, Warren, Kaine, Hassan, and 
Smith.

                 OPENING STATEMENT OF SENATOR ALEXANDER

    The Chairman. The Senate Committee on Health, Education, 
Labor, and Pensions will please come to order.
    This morning, we are holding a hearing on the nomination of 
John Ring to serve as a member of the National Labor Relations 
Board. Senator Murray and I will each have an opening 
statement. Then I'll introduce Mr. Ring. After his testimony, 
Senators will each have 5 minutes of questions.
    Mr. Ring, you have been nominated to a position that is 
important both to workers and employers. The National Labor 
Relations Board was created in 1935 by the National Labor 
Relations Act in response to strife between employees and 
employers in the industrial workplace. The Board has five 
members with 5-year staggered terms and a General Counsel with 
a 4-year term.
    Last year, this Committee approved Marvin Kaplan and Bill 
Emanuel and Peter Robb as General Counsel. You have been 
nominated to fill the vacancy created in December, when Philip 
Miscimarra's term ended.
    Mr. Ring, you have varied experience. You worked for the 
International Brotherhood of Teamsters while attending college 
and law school. You have been a management lawyer with Morgan 
Lewis and Bockius since 1988. You earned your Bachelor's and 
J.D. from Catholic University.
    We received your nomination on January 18. The Committee 
received your Committee paperwork and Office of Government 
Ethics paperwork on January 24. Based on these documents, the 
Office of Government Ethics has determined that you're in 
compliance with applicable laws and regulations governing 
conflicts of interest. I am looking forward to your testimony.
    Under the previous administration, the Board too often 
acted as an advocate rather than an umpire. The additions of 
Mr. Kaplan and Mr. Emanuel last year helped restore some 
balance to the Labor Board and to our Nation's workplaces. 
First, the Board overturned its micro unions decision which 
disrupted workplaces and made it harder for employers to manage 
their workplace and do business.
    For example, a local department store could splinter into 
dozens of factions that the employer would negotiate with--the 
men's clothing department, the bedding department, the 
fragrance department, and the women's shoe department--all 
represented by separate unions fighting over who gets the 
better raises and break rooms.
    Then, second, this NLRB has requested comments on whether 
it should keep or modify the ambush elections rule, another 
rule that previous decisions upended stability in labor law. 
The rule means a union election can be forced in as little as 
11 days, before an employer and many employees even have a 
chance to figure out what is going on. It also forces employers 
to hand over a lot of employees' personal information to 
unions. I hope confirming you, Mr. Ring, will continue this 
trend of returning balance to the administration of our labor 
laws.
    Senator Murray.

                  OPENING STATEMENT OF SENATOR MURRAY

    Senator Murray. Thank you very much, Mr. Chairman, for 
having this hearing.
    Let me just say, in light of the President's ongoing 
efforts to undermine workers' rights and bargaining power, I'm 
especially glad we have the opportunity to talk about the 
future and vital work of the National Labor Relations Board.
    As we are beginning a conversation that is fundamentally 
about workers' rights, I do want to start by noting that we 
should be doing everything we can today to protect workers, and 
that, by the way, includes protection from sexual harassment. 
We are seeing more and more men and women coming forward, 
sharing their stories, and it's clear we have to take much more 
action to prevent sexual harassment in workplaces, especially 
in those industries outside of the spotlight today.
    Mr. Chairman, six weeks ago, the Democratic Members of this 
Committee asked to hold a hearing on this question of sexual 
harassment in the workplace. It's been almost four decades 
since the HELP Committee's last hearing on this, and I hope we 
can get that scheduled soon. I just want to put that on your 
radar that we do care about that.
    The Chairman. Thank you.
    Senator Murray. Mr. Ring, thank you for being here and your 
willingness to serve in this critically important role.
    Over the past year, President Trump, as we've seen it, has 
broken promise after promise to our workers and made it easier 
for corporations to put workers' lives and safety at risk. He 
wants to allow businesses to deny workers the money they've 
earned, both in overtime pay and in tips, and, most relevant to 
today's hearing, he's launched a full-fledged assault on 
workers' right to speak up together, to join a union, to 
negotiate collectively for better wages and conditions.
    Mr. Ring, it is the policy of the United States to 
encourage collective bargaining. To be very clear, that is not 
my opinion. That is what the National Labor Relations Act 
states. The NLRA gives workers a voice, the ability to come 
together, advocate for higher pay and better working 
conditions, and to fight against unfair or predatory practices 
by their employers.
    Unions and collective bargaining helped create in our 
country the middle class and helped millions of families become 
economically secure today. But over the past few decades, we 
know our economy has started to favor big corporations, those 
at the top. Corporate special interests have sought to 
undermine unions and workers' ability to negotiate with their 
employers. And as union membership has declined, we've seen 
more and more workers fall behind, struggling with stagnant 
wages and no real voice in the workplace, all while we are 
seeing big corporations make record profits.
    I believe that in order to rebuild this middle class, we've 
got to get back to the core mission of our Nation's labor laws 
and give workers a fair shot to get ahead. Unfortunately, the 
Trump Administration is taking the National Labor Relations 
Board in the wrong direction.
    Mr. Ring, as I'm sure, the NLRB is the only place workers 
can turn to to enforce their rights under the NLRA. But since 
President Trump's nominees were confirmed last year, they've 
worked to drastically erode workers' rights and to undermine 
the NLRB's ability to carry out its mission.
    Last December, right before the Republican Chair's term 
expired, the Board made a number of 11th-hour decisions to 
undercut workers' protections, including, with its joint 
employment decision in Hy-Brand, permitting corporations to 
shirk responsibility to negotiate with workers for fair pay, 
scheduling, and working conditions. And despite his firm's work 
on this very case, William Emanuel participated in actions 
related to the joint employer standard.
    Mr. Emanuel then made contradicting and potentially false 
statements when I asked him about his participation in this 
matter. The Board's independent watchdog, the Inspector 
General, is currently investigating Mr. Emanuel. In light of 
the IG's findings so far, the Board has already vacated its 
decision to overturn the Obama administration-era ruling on the 
joint employer standard.
    We've also heard reports that the Board's General Counsel, 
Peter Robb, is proposing a drastic reorganization of the NLRB, 
including taking power away from career, nonpartisan Regional 
Directors and increasing the burden on workers to bring a case 
before the Board. These decisions are exactly the kinds of 
changes designed to advantage corporate special interests at 
the expense of workers' rights, bargaining power, and economic 
security.
    Democrats are committed to shining a spotlight on them and 
doing everything we can to make sure workers and families know 
what's going on. Given all this--the last-minute, 11th-hour 
decisions to disempower workers, the proposals to reorganize 
the Board's operations in favor of big corporations, and the 
conflicts of interest already identified by the Inspector 
General--it's clear the last thing our Nation's labor board 
needs is another champion for those at the top.
    Mr. Ring, I know you have spent your years as a corporate 
lawyer representing the interests of companies, not workers, 
and you opposed the Board's reforms that stop companies from 
unnecessarily delaying union elections, and you've encouraged 
the Board to undermine long-established rights, like the right 
to coworker representation in disciplinary interviews. You have 
written advice for corporations on how to avoid providing 
workers with protections and how to deny them their rights.
    After years of aiding corporate management in skirting 
worker protections, I find it difficult to believe that you 
will be able to uphold that core mission of the NLRA that I 
referred to. I'm here today to hope that your testimony will 
persuade me otherwise. So I'm looking forward to this.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Murray.
    I'm pleased to welcome our nominee, John Ring, to the 
hearing. I thank him for his willingness to serve our country. 
I welcome your family, Mr. Ring, and you're welcome to 
introduce them if you'd like as you begin your testimony.
    As I mentioned in my opening statement, Mr. Ring worked for 
the International Brotherhood of Teamsters when he went to law 
school at night, and since then, he's been with Morgan Lewis 
and Bockius where he leads the Washington office's Labor and 
Management Practice Group. He's also a member of the American 
Bar Association, where he's held multiple positions, including 
on the NLRB Practice and Procedures Committee and the Committee 
on Development of the Law under the National Labor Relations 
Act.
    Mr. Ring, welcome. You may begin your testimony.

           STATEMENT OF JOHN F. RING, WASHINGTON, DC

    Mr. Ring. Thank you, Mr. Chairman. Chairman Alexander, 
Ranking Member Murray, and Members of the Committee, I'm 
honored to appear before you today as a nominee for the 
National Labor Relations Board.
    I'd like to start by thanking my family, many of whom are 
with me today, for their support and their many sacrifices. I'd 
also like to acknowledge my parents, who are no longer with us, 
but to whom I owe so much. They instilled in me the value of 
hard work, fair play, and respect for others.
    I want to thank President Trump for his confidence in me. 
There really is no greater honor for a labor lawyer than to 
serve on the NLRB. For me, this honor is somewhat more 
personal, because if it were not for the opportunities afforded 
to me by so many in the labor-management field, both labor and 
management, I would not be here today. I truly view my chance 
to serve on the NLRB as an extraordinary opportunity to give 
back.
    I came to Washington in 1981 with virtually nothing but a 
strong work ethic and a belief that anything was possible. Upon 
graduating from public high school in my hometown of Clinton, 
Connecticut, college was only an option if I could figure out a 
way to pay for it. Fortunately, the Catholic University here in 
Washington offered me scholarships and financial aid. That 
tremendous help, plus student loans and a lot of what I saved 
in high school working in a grocery store and in fast food, 
made college possible.
    Nevertheless, I needed to work to earn money for books and 
living expenses. I found a part-time, $5 an hour file clerk job 
at the Teamsters Union headquarters just across the plaza from 
here. At the time, I wasn't really sure what the Teamsters did, 
but it was a paying job that I needed.
    I worked at the Teamsters 20 to 30 hours a week, starting 
my first week of classes. Gradually, I moved up from my file 
clerk position to positions of more responsibility, and when I 
graduated from college in 1985, the Teamsters offered me a full 
time job. That job allowed me to put myself through law school 
in the evenings.
    My almost 7 years at the Teamsters gave me a unique 
perspective, and I've never forgotten what I learned. I saw 
labor-management relations, collective bargaining, and union 
representation from that side. I also came to know a number of 
good, committed union officials. It was my completely 
accidental experience at the Teamsters that sparked my interest 
in labor law.
    I ultimately decided to pursue labor law on the management 
side. As the Committee knows, lawyers in labor law typically 
represent either management or unions, but almost never both. 
In moving to the management side, I selected my law firm very 
carefully, considering reputation and approach to labor-
management relations. I started at Morgan Lewis as a summer 
associate in May 1988 and I never left. I am now fortunate to 
co-lead the firm's Labor-Management Relations Practice Group 
and serve as the practice group leader for the Washington 
office Labor and Employment Group.
    My almost 30 years of practice have involved representing 
corporate clients on all issues under the National Labor 
Relations Act. A focus has been collective bargaining and 
labor-management relations in heavily unionized industries. I 
have come to know many employers working hard to provide good 
jobs for their employees and fully committed to meeting all of 
their legal obligations. Thus, much of my work has involved 
counseling clients on NLRA compliance and avoiding NLRB 
litigation, although I have handled cases at all levels of the 
Board.
    More recently, my practice has involved working on the 
Taft-Hartley plans. These plans, which are created and funded 
through collective bargaining and overseen by an equal number 
of labor and management trustees provide benefits for many 
unionized workplaces. If confirmed, I will bring this 
background and experience to my role at the NLRB.
    From my past work, I know firsthand the importance of the 
NLRA being interpreted and enforced as it was written and 
consistent with its amendments. I understand the practical 
realities of how the Board's actions affect labor-management 
relations across the country, and I have seen the impact the 
Board's decisions can have on how people run their businesses 
as well as how employees, both union and non-union, work to 
support their families.
    Finally, I would be remiss if I did not say that my years 
of practice have given me a tremendous respect for the NLRB and 
for the many career professionals who do the hard work of the 
agency. If I am fortunate enough to be confirmed, it will be my 
honor to work with them.
    Thank you for the opportunity to offer these opening 
remarks, and I welcome your questions.
    [The prepared statement of Mr. Ring follows:]
                   prepared statement of john f. ring
    Chairman Alexander, Ranking Member Murray and Members of the 
Committee:
    I am honored to appear before you today as a nominee for the 
National Labor Relations Board.
    I would like to start by thanking my family, many of whom are here 
with me today, for their support and many sacrifices. I also would like 
to acknowledge my parents, who are no longer with us but to whom I owe 
so much. They instilled in me the value of hard work, fair play, and 
respect for others.
    I want to thank President Trump for his confidence in me. There 
really is no greater honor for a labor lawyer than to serve on the 
NLRB. For me, this honor is somewhat more personal. If it were not for 
the opportunities afforded to me by so many in the labor-management 
relations field--both labor and management--I would not be here today. 
I truly view my chance to serve on the NLRB as an extraordinary 
opportunity to give back.
    I came to Washington in 1981 with virtually nothing but a strong 
work ethic and the belief that anything was possible. Upon graduating 
from public high school in my home town of Clinton, Connecticut, 
college was only an option if I could figure out a way to pay for it. 
Fortunately, Catholic University offered me scholarships and financial 
aid. That tremendous help, plus student loans and what I had saved in 
high school working at a grocery store and in fast food, made college 
possible.
    Nevertheless, I still needed to work to earn money for books and 
living expenses, and I found a part-time, $5-an-hour file clerk job at 
the Teamsters Union headquarters just across the plaza from here. At 
the time, I wasn't exactly sure what the Teamsters did, but it was a 
paying job. I worked at the Teamsters 20 to 30 hours a week starting my 
first week of classes. Gradually, I moved up from file clerk to 
positions of more responsibility, and when I graduated from college in 
1985, the Teamsters offered me a full-time job. That job allowed me to 
put myself through law school in the evenings.
    My almost 7 years at the Teamsters gave me a unique perspective, 
and I have never forgotten what I learned. I saw labor-management 
relations, collective bargaining, and union representation from that 
side. I also came to know a number of good, committed union officials. 
It was my completely accidental experience at the Teamsters that 
sparked my interest in labor law.
    I ultimately decided to pursue labor law on the management side. As 
this Committee knows, lawyers in labor law either represent management 
or unions, but almost never both. In moving to the management side, I 
selected the law firm carefully, considering reputation and approach to 
labor-management relations. I started at Morgan Lewis as a summer 
associate in May 1988, and I never left. I now am fortunate to co-lead 
the firm's Labor/Management Relations Practice Group and serve as the 
Practice Leader for the Washington Office Labor and Employment Group.
    My almost 30 years of practice has involved representing corporate 
clients on all issues arising under the National Labor Relations Act. A 
focus has been collective bargaining and labor-management relations in 
heavily unionized industries. I have been involved at the bargaining 
table in some of the largest, industry-wide negotiations as well as 
worked with small and medium-sized companies negotiating local labor 
contracts and resolving labor disputes. I have come to know many 
employers working hard to provide good jobs for their employees and 
fully committed to meeting all of their legal obligations. Thus, much 
of my work has involved counseling clients on NLRA compliance and 
avoiding NLRB litigation, although I have handled cases at all levels 
of the Board.
    More recently, my law practice has involved working with Taft-
Hartley benefit plans. These plans, which are created and funded 
through collective bargaining and overseen by an equal number of labor 
and management trustees, provide benefits for many unionized work 
places. Serving as employer co-counsel on a number of these 
multiemployer pension and health and welfare plans, I advise the 
trustees on the wide range of issues required to administer benefits 
for tens of thousands of participants.
    If confirmed, I will bring this background and experience to my 
role at the NLRB. From my past work, I know firsthand the importance of 
the NLRA being interpreted and enforced as it is written and consistent 
with its amendments. I understand the practical realities of how the 
Board's actions affect labor-management relations across the county, 
and I have seen the impact the Board's decisions can have on how people 
run their businesses as well as how employees union and non-union work 
to support their families.
    Additionally, in the world of labor negotiations and labor-
management relations, whether in collective bargaining or at a trustees 
table, there can be sharp disagreements and strongly held views. It 
sometimes can be difficult to find common ground. I've learned during 
my years of practice that you must develop constructive relationships, 
treat people and their views with respect, and approach differences 
with an open mind. It does not necessarily mean abandoning your 
position or principles, but it does require working constructively to 
forge agreements in a positive manner. My experiences will help in 
dealing with the difficult issues that often come before the NLRB.
    Finally, I would be remiss if I did not say that my years of 
practice have given me tremendous respect for the NLRB and for the many 
career professionals who do the hard work of the Agency. If I am 
fortunate enough to be confirmed, it will be an honor to work with 
them.
    Thank you for the opportunity to offer these opening remarks. I 
welcome your questions.
                                 ______
                                 
    The Chairman. Thank you, Mr. Ring. We'll now begin a round 
of 5-minute questions.
    Mr. Ring, Senator Murray referenced the joint employer 
decision and NLRB member Emanuel. Here's what I understand 
happened. Mr. Emanuel apparently was assigned the Hy-Brand case 
when he came to the NLRB through the Board's normal process. 
The normal process involves the Ethics Office and the Executive 
Secretary's Office at the NLRB working together to develop a 
recusal list for Board members. Then the Executive Secretary's 
Office assigns cases based on that recusal list. Hy-Brand 
apparently was not on Mr. Emanuel's recusal list because, on 
its face, there was no conflict with his participating in the 
case.
    It's my understanding that how the decision in Hy-Brand was 
reached, along with a number of other things that occurred 
after the case was assigned, led the Ethics official to then 
determine that Mr. Emanuel should have been recused, although 
the initial process in which the Ethics official participated 
said he should not be recused. So under the circumstances, I 
think the Board did the only thing it could have done and 
vacated the Hy-Brand decision.
    Now, Mr. Ring, that puts us back to where we were before 
the Hy-Brand decision, which was the Obama era joint employer 
standard announced in the Board's Browning-Ferris case in 2015. 
In my opinion, that decision by the NLRB in 2015 was the 
biggest attack on the owners of 780,000 franchise locations 
this country has seen in a long time. It reversed a 30 year old 
standard that was in effect and stated that mere indirect 
control or even unexercised potential to control working 
conditions could make a business a joint employer. So my view 
of the joint employer standard is the same as it's always been. 
I'd like to see us return to the decades-old precedent that 
made a business a joint employer only if it had direct control 
over the terms and conditions of a worker's employment.
    You've had extensive experience counseling clients in the 
wake of the Browning-Ferris decision. What real-world effects 
did the Browning-Ferris decision have on employers as far as 
expansion and daily business operations? How did it complicate 
compliance for employers? And how important is it to have 
clarity for employers, unions, and employees on the issue of 
joint employment?
    Mr. Ring. Senator, thank you for the question. As you know, 
if confirmed as a Board member, my role will be to fairly and 
impartially adjudicate the cases that come before the Board, 
and for that reason, I need to take care not to prejudge the 
case. And if the joint employer issue comes before the Board, I 
commit to looking at the facts of that case with an open mind.
    I understand the concerns that you have raised, and I will 
speak to the clarity aspect of this. There are whole industries 
that were built up based on certain laws and the structures of 
certain laws, and in the last year or so now, we've had a flip-
flop of those laws, and employers, unions, employees need to 
have some clarity, some predictability in the way they can 
conduct their business and conduct their lives. So I think it's 
very important for the integrity of the Board to have some 
finality and clarity on the joint employer issue as soon as 
possible.
    The Chairman. Mr. Ring, the former NLRB General Counsel 
issued a memorandum in October 2016 stating that scholarship 
football players at private colleges and universities should be 
considered employees under the National Labor Relations Act. 
That memorandum has been withdrawn by the new General Counsel 
in December 2017.
    I was a student athlete at Vanderbilt University. I did not 
have an athletic scholarship. But I did not think of myself as 
an employee of the university or would not have had I had a 
scholarship. Senator Byrd did have a scholarship. He was on the 
Wake Forest football team. I was on the Knight Commission on 
Intercollegiate Athletics, which included a distinguished group 
of college presidents and others who strongly disagreed with 
the idea that scholarship college athletes should be considered 
employees of the schools they attend. Should they be?
    Mr. Ring. Senator, I'm very familiar with the issue, but, 
once again, I will say that that is an issue that could come 
before the Board, and so I want to take care not to prejudge 
the issue. The issue of students or teaching assistants being 
able to organize is a very fact-intensive one, and if a case 
comes before the Board, I would look forward to reviewing the 
facts with an open mind, looking at the position of the 
parties, the precedent, and giving a fair decision.
    The Chairman. Teaching assistants is yet a separate issue, 
but----
    Mr. Ring. Right.
    The Chairman----. my time is up.
    Senator Murray.
    Senator Murray. Thank you very much, and let me visit this 
one more time.
    Mr. Ring, our ethics laws are supposed to make sure people 
serving in government are making decisions in the best interest 
of the public. However, as we have talked about, Member William 
Emanuel of the NLRB, who, like you, came from a large law firm, 
is now under investigation for participating in a case that 
involved his former law firm, even though he actually told me 
in written questions that his firm represented a party in that 
case.
    As we know, the Inspector General took a highly unusual 
step of issuing a report that occurs only in instances where 
there are particularly serious or flagrant problems, abuses, or 
divisions. She is calling into question the very validity of a 
significant Board ruling.
    I wanted to ask you today: Can you give me a commitment 
that you will be rigorous in your approach to ensuring that you 
do not participate in cases where there is a conflict of 
interest or an appearance of a conflict?
    Mr. Ring. Senator, I appreciate the opportunity to talk 
about this. I think these ethical issues are something that are 
very concerning, and they kind of cast a shadow on the good 
work of the Board. Let me address--I can't speak to Member 
Emanuel, but I can speak from my situation. I take the ethical 
commitment very, very seriously, as does my law firm. I think 
one of my primary responsibilities--the primary responsibility 
of any Board member is to ensure that the stakeholders of the 
Board know that there's impartiality in decision-making. So, 
for me, I take that commitment very, very seriously.
    I have signed a commitment to comply with all government 
ethics rules. I can make that commitment to you today. I am 
working now--my law firm and I are working with the Board and 
the Board's Ethics Office to compile a list, and I'm going to 
make sure that list is complete, because I don't want to have 
an issue--anything like has happened. I will say, as I 
mentioned in my opening statement, my practice has been in 
assisting employers in compliance and trying to avoid 
litigation at the Board.
    I will have a list of clients that, obviously, will require 
recusal. My hope is that my list will be shorter and that the 
conflicts will be less.
    Senator Murray. Okay. I appreciate that. That's what I 
wanted to hear.
    The NLRA actually gives workers the right to speak up 
together and act collectively to assist each other. The Board 
has ruled a worker is protected when she seeks her co-worker's 
help in dealing with a workplace problem. Under President Bush, 
the NLRB effectively carved out an exception to the rule for 
sexual harassment claims. They said sexual harassment is a rare 
occurrence, and co-workers have less of an interest in 
assisting each other to confront sexual harassment than they 
would if other issues were at stake.
    Now, fortunately, during the Obama presidency, the Board 
overturned that poorly reasoned decision, but now General 
Counsel Robb has indicated he might urge the Board to return to 
that Bush era standard. I wanted to ask you: Do you believe 
workplace sexual harassment is a rare occurrence?
    Mr. Ring. Well, I can't speak to the prevalence, but I will 
say any sexual harassment in the workplace is too many. There 
should be no place for sexual harassment in the workplace. I 
can't speak to the General Counsel's views----
    Senator Murray. I would not expect you to. But let me just 
ask you: Do you believe a worker seeking help from a co-worker 
on a problem related to any term or condition of employment 
should be protected from punishment from her employer for doing 
so?
    Mr. Ring. Well, again, that is an issue that may come 
before the Board, so I have to take care not to prejudge it. 
But I think what we've seen in the public is that having the 
ability for those who have been harassed to publicize and make 
known the concerns advances the protections.
    Senator Murray. Okay. One more quick question on joint 
employment. You know, corporations are making record profits, 
and working families are struggling. So we are watching this 
issue and trying to figure out how we can change that. And for 
millions of workers, their working conditions are controlled by 
more than one company. In some cases, both an individual store 
and a corporate headquarters make decisions that impact that 
worker. As you know, the Board recently attempted to narrow its 
joint employer standard, which would make it impossible for a 
lot of workers to exercise their rights.
    You just said a minute ago that certainty is important for 
workers, and I agree. But changes in the economy have really 
frustrated workers' attempt to exercise their right to 
collective bargaining, and I wanted to ask you: Do you agree 
that changes in the economy have created some new challenges 
for workers, especially low-income workers? And how should we 
ensure that meaningful collective bargaining is not out of 
reach for millions of our workers today?
    Mr. Ring. Well, Senator, I appreciate that question. I do 
think there have been a number of changes in the workplace and 
created a number of challenges for workers and for companies. 
As a Board member, if confirmed, my role is to enforce the 
National Labor Relations Act as it is written with its 
amendments. So if Congress were to make changes to address 
changes in the economy and issues that have created those kinds 
of challenges that you mentioned, I would enforce those. But I 
think as a Board member, my responsibility is to enforce the 
National Labor Relations Act.
    Senator Murray. I've run out of time, Mr. Chairman.
    The Chairman. Thank you, Senator Murray.
    Senator Isakson.
    Senator Isakson. Thank you, Mr. Chairman.
    Mr. Ring, congratulations on your nomination. Glad to have 
you.
    Mr. Ring. Thank you, Senator.
    Senator Isakson. Does the NLRB have a standard they go by 
in terms of double checking to make sure there is no conflict 
of interest on a decision rendered by the Board?
    Mr. Ring. Well, Senator, during the nomination process, I 
haven't been privy to the Board's ethics process. But I can 
assure you that the first thing I'm going to do when I get to 
the Board is to understand what that ethics process is and to 
make sure that I am covered and that I can be confident that 
when the Ethics officer at the Board says I can decide a case 
that I can.
    Senator Isakson. The reason I asked the question is that 
Wednesday, one of my--or last week, actually, one of my 
employees in my Washington office came to me to ask for a 
recommendation of an attorney to potentially represent them in 
a matter that she and her husband were facing, and I called a 
good friend of mine who is with a firm that has offices not 
only here, but in Atlanta, Dallas, Houston, Los Angeles, and 
some overseas--a big law firm.
    I posed a question--I said, ``I have a young lady here, and 
I have recommended that you talk to her to see if you could 
represent her in a matter before''--and I said, ``I'll leave 
the room and let you all discuss it.'' He said, ``Don't leave 
the room.'' I put her on the phone, and the first thing he 
asked her were the names of the parties involved and her name, 
former name, and things like that. He said, ``Well, let me run 
this against our company records and make sure there's no 
conflict of interest, and I'll call you back and we'll set up 
an appointment.'' I assumed that was his regular response 
because it sounded like it, and I'm not a lawyer.
    In most cases, don't people--attorneys pre-check before 
they accept a client that they don't have any conflict of 
interest with another plaintiff from the case or a defendant?
    Mr. Ring. That's standard practice. It's been my experience 
in my law firm that that's one of the first questions you have 
to ask.
    Senator Isakson. You know a conflict of interest when you 
see it, don't you?
    Mr. Ring. Well, most often. But there are times when you 
have to check the records and make sure you've got the--you 
know, sometimes there's corporate relationships and so forth 
that you need to check. So it's a process.
    Senator Isakson. Sometimes that process is not at the 
beginning of the relationship but in the middle. I'm the 
Chairman of the Ethics Committee in the Senate, and I have been 
for 11 years, and I have found that on more than one occasion, 
we find a case before us that gets to a point where somebody 
else arises as an interested party or a party affected or 
whatever, where I might have had a relationship, and I have to 
think, ``Now, can I make a decision in this case now, given the 
fact that this person is in there?'' So that happen in 
something before the NLRB, too.
    Mr. Ring. Absolutely.
    Senator Isakson. My point is that it's very important to 
avoid the appearance of a conflict of interest, it's very 
important not to have a conflict of interest, so you have 
integrity in the decisions that you're making. So it's not just 
what you knew when the case came to the NLRB Board, but it's 
what you know as it develops to always measure yourself against 
that standard so you never knowingly have a situation where 
you're opining one way or another on something where there's a 
conflict of interest.
    Mr. Ring. I absolutely agree, Senator.
    Senator Isakson. Second, I'm not an attorney, but I've 
learned after 41 years in elected office as a legislator that 
most everything we do creates a market for a bunch of consumers 
for attorneys. I mean, every time we pass new laws, every time 
we pass new regulations and things of that nature--and the 
joint employer situation, in terms of the NLRB, but in terms of 
practice, opens a whole new field of litigation or potential of 
regulated people by bringing in the old joint employer 
standard--people who previously were not considered an employee 
or employer because of relationship. Is that not true?
    Mr. Ring. It potentially expands the Browning-Ferris 
decision--it potentially expands the number of employee-
employer relationships, yes.
    Senator Isakson. My point is--and that also could 
potentially bring about a lot of interesting consequences if 
you take a standard like that and broaden it. For example, the 
IRS has a standard for independent contractors. I ran a company 
that was taken to court by the Nixon administration years ago 
in the 1960's over a case of whether or not we should withhold 
on independent contractors for social security and taxes.
    We defended we should not because an independent contractor 
is not our employee. They're associated with us through a 
contract. That went all the way to the--it went all the way, 
ultimately, to the highest court in the land to determine what 
an independent contractor was, and they put an independent 
contractor's standard in there. So you now know if you're a 
company and you form yourself as an employer-employee company, 
you have one set of rules with the IRS, and if you have an 
independent contractor standard, you have another, and how you 
treat those people determines which standard you have.
    My only point being that by going into a situation where 
you broaden the definition of employer, which you would 
certainly do by expanding the Browning-Ferris decision, then 
you're opening a whole new ground and territory for potential 
litigation or potential regulation for people that previously 
were not affected and also would end up running--putting 
somebody in afoul of the very regulations that affect them by 
the government under the IRS, because under the IRS, you can't 
have control. Under joint employer, you have to have control 
to, in fact, be liable.
    My point is the conflict of interest thing--you have to 
constantly be aware of not crossing the line and making sure--
we need to be sure we don't expand those who might be guilty. 
You need to make sure you're never opining on a case that, at 
some point along the way, a conflict of interest could have 
been developed or could come about. So I'm confident from what 
I've read about what you've done from your obvious level of law 
and labor-management law from the beginning of your career, and 
I'm sure you'll do that, and I wish you the best of luck.
    Mr. Ring. I appreciate that, Senator.
    The Chairman. Thank you, Senator Isakson.
    Senator Hassan.
    Senator Hassan. Thank you, Chairman Alexander and Ranking 
Member Murray.
    Thank you as well to our nominee and congratulations, Mr. 
Ring, on your nomination. I enjoyed our conversation in my 
office very much.
    The National Labor Relations Board is critical in ensuring 
the rights of workers and safeguarding against unfair labor 
practices. Over the course of my service in the New Hampshire 
State Senate, as Governor, and now here, I have spent 
considerable time learning about the issues that impact 
employers and their employees, and I'm really looking forward 
to continuing our discussion today.
    The National Labor Relations Board's General Counsel, Peter 
Robb, recently proposed a reorganization of regional offices 
that would be supervised by agency officials who would directly 
report to the General Counsel. Right now, regional directors 
who are career employees resolve roughly 85 percent of NLRB 
cases without bringing them to the General Counsel level at 
all.
    These regional directors regularly work with local 
employers, employees, and the unions, providing important 
perspective when deciding a case. The change that has been 
suggested by the General Counsel would move the decision-making 
power from the regional offices to agency officials who may be 
politically appointed and are far removed from the case and its 
stakeholders.
    In addition, Mr. Robb has also proposed changes to case 
processing procedures which would increase filing burdens on 
workers who file charges for violations of their rights, 
including a change to enable Board staff to dismiss workers' 
charges without the approval of regional leadership.
    Mr. Ring, given the significant implications of these 
changes, as a Board member, would you require that General 
Counsel Robb seek the approval of the Board and seek public 
comment before moving forward with implementing these plans?
    Mr. Ring. Senator, thank you for the question, and I will 
just say I appreciated our conversation as well. It was 
interesting to hear about your experience in collective 
bargaining and to share experiences about where labor-
management relations actually work.
    To your question, I have not had the opportunity to see in 
detail General Counsel Robb's proposal, and I haven't had the 
opportunity to talk to him about the proposal and the effort 
variant counsel of why such a proposal may be proposed. So it 
would be unfair for me to try to comment on it here, but I will 
say----
    Senator Hassan. Well, let me--and I'm sorry to interrupt. 
But, look, it's a significant--if the reports of the proposal 
are true, the question isn't what do you think of the proposal, 
but do you think the scope of the proposal is such that it 
should require Board approval?
    Mr. Ring. Well, my understanding, again, just from what 
I've read of what General Counsel Robb is proposing--part of 
the structure within the regional directors and the regional 
offices requires a delegation from the Board, and so it would--
again, my understanding, based on just what I've seen, is what 
he is proposing would require Board action in order to amend 
the delegation.
    Senator Hassan. That is helpful to understand. I look 
forward to following up with you on that. I also wanted to 
point out that the General Counsel has suggested that one of 
the reasons for the proposed changes is budgetary concerns that 
the Board has. So, if confirmed, do you plan to appeal to 
Congress for additional appropriated funds to ensure that 
public service needs are met? Similarly, are you expecting to 
be involved in developing and ultimately approving any NLRB 
spending recommendations or plans?
    Mr. Ring. I appreciate that. As a nominee, I haven't been 
involved in the budget issue, either. But I have seen a number 
of the press accounts about General Counsel Robb's 
justification for some of his changes based on budgetary cuts. 
What I would say to you is, if confirmed, I would make it a 
priority to come up to speed on the budget issues at the Board 
immediately. I think there's always--you know, as stewards of 
taxpayers' moneys, we are obligated to look for ways to do 
things more efficiently, although my experience with the Board 
is that it runs fairly efficiently. But I would look forward to 
working with General Counsel Robb and being very involved in 
that budget process.
    Senator Hassan. Well, I appreciate that, and I just would 
add that there's a difference between being efficient and 
effective and strategic with taxpayer dollars and being penny-
wise and pound-foolish. And at a certain point, we need to have 
staff and capacity to do the work to protect workers' rights 
and make sure that the process runs in a way that's good for 
both employers and employees so that they can get resolution. 
So I would urge you to get very involved in that.
    I have another question. I'm out of time, but I will submit 
it for the record--just about the way the Board has been 
actively reversing precedent recently. It's something you and I 
talked about in my office, and I look forward to getting your 
response. Thank you very much.
    Mr. Ring. Thank you.
    The Chairman. Thank you, Senator Hassan.
    Senator Baldwin.
    Senator Baldwin. Thank you, Mr. Chairman and Ranking 
Member.
    Thank you, Mr. Ring, for your willingness to serve. I want 
to focus on the issue of joint employment. For a majority of 
the NLRA's existence, the Board found joint employment when a 
company directly or indirectly controlled workers' employment. 
This is important because meaningful collective bargaining can 
only occur if every company controlling workers' employment is 
sitting at the bargaining table.
    Do you believe that employers must exercise direct and 
immediate control in order to be employers under the NLRA?
    Mr. Ring. Senator, I appreciate the opportunity to talk 
about the joint employer issue. I know it's a very 
controversial issue, as we can tell from the various questions. 
Under the prior standard, the standard is direct control. Under 
the newer standard, it is the right to control, and that's 
setting the difference that has been the struggle.
    I have always thought of the joint employer issue as 
something that's very, very fact-specific, and it's very fact-
intensive. Whether an employer controls or doesn't control or 
has the right to control is very, very fact-intensive. So if a 
joint employer issue comes before the Board, I would look at 
those facts with an open mind and consider the parties, 
consider the past precedents, and make a ruling on the case. I 
just want to be careful not to prejudge any joint employer case 
that may come before me.
    Senator Baldwin. I'll get to the fact-specific issues in a 
moment. But in terms of the way the NLRB looks at this question 
over time, are there specific legal authorities that back up 
the direct or immediate control conclusion that has been taken?
    Mr. Ring. Well, I think the precedent where the direct 
control has been in place is pretty well documented.
    Senator Baldwin. Is it in the NLRA?
    Mr. Ring. Oh, is it in the NLRA?
    Senator Baldwin. No, I----
    Mr. Ring. Oh, no, no, it's not in the NLRA.
    Senator Baldwin. Okay. And is it elsewhere in specific 
legal authorities? Is it in the restatement of the agency?
    Mr. Ring. I'm not familiar with that. But I will say that I 
think one of the arguments that has been made with respect to 
the Hy-Brand position--the prior position before Browning-
Ferris--is that the direct control is more in line with the 
common law thought of employer status.
    Senator Baldwin. Again, we'll get to fact-specific issues 
in a second. But do you believe that reserved but unexercised 
control over workers is at least probative of employer status?
    Mr. Ring. Senator, if a joint employer case comes before 
me, I will consider all of the positions of the parties, and 
I'm sure that would be one of them. So I would not want to 
prejudge that, but it would be something I would look at.
    Senator Baldwin. Well, let's do a look at the principle 
without a case before you. In principle, do you think that if 
Company A caps wages for workers at Company B, both companies 
need to be at the bargaining table for a meaningful collective 
bargaining to take place? And I'm not asking you about a 
specific case, but if that's all, I'm asking you about that 
principle.
    Mr. Ring. I think your example illustrates the fact-
intensiveness of this issue, because how an employer caps those 
wages could be very probative about whether or not there's 
control or not control or whether there's indirect control. So 
I think while in principle you could make a position known, I 
think it really would vary based on the facts.
    Senator Baldwin. I'm noticing that my time is running out. 
I will be submitting some additional questions for the record 
on this matter, as well as some of the late breaking news about 
the Board hiring freeze that has been announced.
    Mr. Ring. I'd welcome that.
    The Chairman. Thank you, Senator Baldwin.
    Senator Hatch, do you have comments or questions?
    Senator Hatch. I just want to congratulate you and welcome 
you to the Committee. These are tough jobs, and you are very 
qualified, and I intend to support you.
    Mr. Ring. Thank you very much, Senator Hatch.
    The Chairman. That was right to the point from the senior 
member of the Senate.
    [Laughter.]
    The Chairman. Senator Smith.
    Senator Smith. Thank you very much, Chair Alexander and 
Ranking Member Murray. I appreciate it.
    Mr. Ring, thank you so much for being here and thank you 
also for your willingness to serve. I appreciate it.
    In 2016, just a couple of days before Thanksgiving, a 
Minnesota trucking company which had collective bargaining 
closed its doors and began to reorganize as a non-union 
company. The workers at the company that had collective 
bargaining--they lost their jobs, and many of them also didn't 
receive their final paychecks.
    Unfortunately, this is not a rare occurrence. It happens 
all too often where company owners attempt to set up new firms 
to avoid having to bargain with a union at an older firm that 
they own. We've seen this occur not just in the trucking 
industry but also in building trades and other industries where 
it's pretty easy to shift assets from one corporate legal 
entity to another. Of course, this practice of shifting work 
from a union company to a non-union company, if one company is 
just the alter ego of the other, is illegal.
    My first question is: Do you agree that that's illegal?
    Mr. Ring. Senator, I appreciate the question, and I will 
tell you I spent most of my career working in the trucking 
industry, so I know it well. Under Board law, shifting assets 
to an alter ego in order to avoid a collective bargaining 
agreement--my understanding is that that is illegal.
    Senator Smith. That's my understanding, too. So the 
question is: What should be done about it, and what are sort of 
the--the problem is that it's very easy to do, and it's 
difficult to track what's happening. So what do you think, from 
the position of the NLRB, ought to be done to kind of let 
employers know that this is not acceptable, and there will be, 
accountability for doing it?
    Mr. Ring. Well, I believe there is accountability under the 
National Labor Relations Act and enforced by the NLRB 
currently, and I believe the sanctions for an employer that 
does something like that can be quite severe.
    Senator Smith. Related to that, one of the concerns that 
I've heard from employees is that from the perspective of the 
employees, it can be really difficult to figure out who owns 
and controls a company, and, often, it's very difficult to 
prove that two companies have common management or common 
assets or even have, characteristics that would lead them to be 
treated as a single employer or alter ego.
    What legal standard do you think should be applied to 
figuring out--in helping employees determine what information 
they can ask for to try to establish this alter ego problem we 
have?
    Mr. Ring. You raise a good question, and it goes to the 
joint employer issue we've been talking about. I think Chairman 
Alexander asked about clarity and I spoke mostly about clarity 
on the part of employers. But I think the uncertainty happens 
with employees, too, where employees don't know who their 
employer is. So I think, without prejudging, any case in the 
joint employer area, I would say that it is important that 
there be clarity so that employees can understand who is 
responsible to them as their employer.
    Senator Smith. Do you think that if an employee has a 
reasonable basis for believing that a non-union company may be 
an alter ego for the company that they were formerly employed 
by, which is what happened in Minnesota--do you think that kind 
of having them have a reasonable basis is sufficient to allow 
that employee to ask for further information? Or would they be 
required, do you think, to provide specific facts before they 
could kind of take that next step? Because that's the problem 
that I understand people are having. Again, you can't get the 
information because you don't have the facts, but you don't 
have the facts because you don't have the information.
    Mr. Ring. Well, if I'm understanding your question and your 
fact pattern correctly, it would seem to me that part of the 
process that would be effective is by filing a charge with the 
Board, with the NLRB, and the Board has--and the investigatory 
process, and Board agents have wide discretion in many cases to 
seek information. So I think the Board processes provide a good 
avenue for that.
    Senator Smith. Thank you.
    Mr. Chair, I'm almost out of time. I have one final 
question, which I ask permission to submit, having to do with 
the problem we have in this country with wage theft and people 
who are not paid the money that they've earned.
    Mr. Ring, I'd like very much to hear your perspective on 
that. It's a bigger problem than robbery in this country in 
terms of the money that people earn and aren't able to get.
    Mr. Ring. I welcome the question.
    The Chairman. Thank you, Senator Smith.
    Senator Murray has another important appointment she has to 
leave for, so I'm going to call on her and then go to Senator 
Warren, if that's all right.
    Senator Murray. Mr. Ring, I just want to thank you for 
being here and for your ability to answer questions. I will 
have some that I will submit for the record that we need to get 
back expeditiously.
    Senator Murray. But I appreciate you being here and all of 
our Members' questions.
    Mr. Chairman, thank you for accommodating us.
    The Chairman. Thank you, Senator Murray.
    Senator Warren.
    Senator Warren. Thank you, Mr. Chairman.
    A big ethics cloud now hangs over the National Labor 
Relations Board. President Trump's last nominee for the NLRB, 
William Emanuel, faces an investigation by the agency's 
Inspector General because he broke the ethics rules by 
participating in a case that his former law firm is involved 
in. The Board has now vacated one of its most consequential 
decisions because the IG determined that it was tainted by Mr. 
Emanuel's conflict of interest.
    Mr. Ring, you have a background that is very similar to 
that of Mr. Emanuel. You've spent decades representing the 
interests of large corporations for a notoriously anti-union 
law firm. This Committee needs to dot every I and cross every T 
when it comes to making sure that you are able to serve without 
the kinds of ethical conflicts that have been created by Mr. 
Emanuel.
    Let me ask: If confirmed, you've said you'll follow the 
White House's Ethics Pledge and refrain from participating in 
matters involving your former clients, which include companies 
like Amazon, Marriott, Pratt and Whitney. Is that correct?
    Mr. Ring. Right. Yes, Senator.
    Senator Warren. Good. I also want to ask--Mr. Emanuel gave 
me exactly that same assurance. Do you understand that you must 
recuse yourself in any matter in which your former law firm, 
Morgan Lewis, represents a party?
    Mr. Ring. That's my understanding of the ethics rules, yes.
    Senator Warren. Okay. And in order to ensure that you do 
so, will you commit to providing me and other Members of this 
Committee a list of cases currently pending before the NLRB in 
which your law firm represents a party?
    Mr. Ring. Senator, we discussed this earlier, and I want to 
just say that I take this issue very, very seriously, and for 
that reason, we are compiling a list for the very reason you 
discussed, because I do not want to be in the position that 
Member Emanuel finds himself in, and I do not want to put 
another cloud over the NLRB.
    Senator Warren. I'm sorry. So is that a yes, that you will 
provide this list?
    Mr. Ring. Yes.
    Senator Warren. Because the only reason we know about Mr. 
Emanuel's apparent ethics violations is because we were able to 
dig up information after he was confirmed, it would be nothing 
short of negligent at this point for this Committee to let it 
come to that again. So I want to be sure about this, and I want 
to know we're going to get this list of all the clients before 
we have to take a vote on your nomination. Is that right?
    Mr. Ring. That's my understanding, yes.
    Senator Warren. Okay. Good. Will you also commit to 
providing a list of cases that have been decided by the NLRB 
but that are currently on appeal in which your law firm 
represents a party?
    Mr. Ring. On appeal before an appellate court?
    Senator Warren. Right. We need--yes, the ones that are 
still not resolved finally.
    Mr. Ring. I believe that's part of the list that we're 
compiling.
    Senator Warren. Good. All right. I'll take that as a yes.
    Mr. Ring. Yes.
    Senator Warren. All right. Thank you very much. Thank you, 
Mr. Ring. That's it for me.
    The Chairman. Thank you, Senator Warren.
    I see no other senator. So thank you, Mr. Ring, for being 
here.
    If Senators wish to ask additional questions of the 
nominee, the questions for the record are due by 5 p.m. Friday, 
March 2d. For all other matters, the hearing record will remain 
open for 10 days. Members may submit additional information for 
the record within that time. The next meeting of our Committee 
will be Wednesday, March 7, to vote on the nomination of Mr. 
Ring and others.
    Thank you for being here. The Committee will stand 
adjourned.
    [Whereupon, at 10:58 a.m., the hearing was adjourned.]

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