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S. HRG. 113–852 

NOMINATION OF SHARON BLOCK TO SERVE AS 

A MEMBER OF THE NATIONAL LABOR RELATIONS BOARD 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

ON

NOMINATION OF SHARON BLOCK TO SERVE AS A MEMBER OF THE 

NATIONAL LABOR RELATIONS BOARD 

SEPTEMBER 9, 2014 

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

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

TOM HARKIN, Iowa, Chairman 

BARBARA A. MIKULSKI, Maryland 

PATTY MURRAY, Washington 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

KAY R. HAGAN, North Carolina 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

LAMAR ALEXANDER, Tennessee 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

DEREK MILLER, Staff Director 

LAUREN MCFERRAN, Deputy Staff Director and Chief Counsel 

DAVID P. CLEARY, Republican Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

TUESDAY, SEPTEMBER 9, 2014 

Page 

COMMITTEE MEMBERS

Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and 

Pensions, opening statement ............................................................................... 1 

Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, opening 

statement .............................................................................................................. 2 

Murphy, Hon. Christopher, a U.S. Senator from the State of Connecticut ........ 9 

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 10 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 12 

Scott, Hon. Tim, a U.S. Senator from the State of South Carolina ..................... 14 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 16 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 18 

WITNESS

Block, Sharon, nominee for Member, National Labor Relations Board, Washington, DC ............................................................................................................. 4 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Response to questions of Senator Alexander, Senator Isakson, and Senator Scott by Sharon Block .......................................................................... 22 

(III) 

(1) 

NOMINATION OF SHARON BLOCK TO SERVE 

AS A MEMBER OF THE NATIONAL LABOR 

RELATIONS BOARD 

TUESDAY, SEPTEMBER 9, 2014 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 10 a.m., in room SD– 

430, Dirksen Senate Office Building, Hon. Tom Harkin, chairman 

of the committee, presiding. 

Present: Senators Harkin, Alexander, Casey, Whitehouse, Murphy, Warren, Isakson, Hatch, and Scott. 

OPENING STATEMENT OF SENATOR HARKIN

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor, and Pensions will please come to order. 

We are holding this hearing today because at the end of the year, 

there will be a vacancy at the National Labor Relations Board resulting from the departure of Member Nancy Schiffer. I would like 

to take a moment first to thank Ms. Schiffer for her service. The 

President has nominated an exceptionally well qualified and dedicated public servant, Ms. Sharon Block, to fill the opening, and I 

look forward to her speedy confirmation. 

A little over a year ago, for the first time in over a decade, we 

were able to confirm a fully functional five-member NLRB. It is my 

hope that by promptly confirming Ms. Block’s nomination to fill the 

looming vacancy we can continue the progress that has been made 

and begin a new era where orderly transitions are the norm, not 

the exception. 

The NLRB is an agency that is absolutely critical to our country, 

to our economy, and to our middle class. Over 75 years ago, Congress enacted the National Labor Relations Act guaranteeing 

American workers the right to form and join a union and bargain 

for a better life. For both union and non-union workers alike, the 

Act provides essential protections. It gives workers a voice in the 

workplace, allowing them to join together and speak up for fair 

wages, good benefits, and safe working conditions. These rights ensure that the people who do the real work in this country see the 

benefits when our economy grows. 

The National Labor Relations Board is the guardian of these fundamental rights. Workers themselves cannot enforce the NLRA. 

The Board is the only place workers can go if they have been treated unfairly or denied the basic protections that the law provides. 

2 

In the past 10 years, the NLRB has secured opportunities for reinstatement for 22,544 employees who were unjustly fired. It has also 

recovered more than $1 billion on behalf of workers whose rights 

were violated. 

The Board doesn’t just protect the rights of workers and unions. 

It also provides relief and remedies to our Nation’s employers. The 

Board is an employer’s only recourse if, for example, a union commences a wildcat strike or refuses to bargain in good faith during 

negotiations. 

The NLRB also helps numerous businesses resolve disputes efficiently. By preventing labor disputes that could disrupt our economy, the work that the Board does is vital to every worker and 

every business across the Nation. 

During our last NLRB hearing, one of the nominees described 

himself as being not pro-worker or pro-union or pro-employer, but 

instead he said he was pro-Act, pro-NLRA. I believe any nominee 

that comes before this committee should be pro-Act, and I am confident that Ms. Block, with her labor and employment law expertise, her expertise of having worked on this committee and on the 

Board, will be such a person. Two of the qualities that have always 

impressed me about Ms. Block are her commitment to public service and her ability and willingness to work with Democrats, Republicans, or whomever as long as they are committed to upholding 

and enforcing our Nation’s labor and employment laws. 

Much has been made by some of my colleagues about Ms. Block’s 

previous service at the Board as a recess appointee. During that 

period, I watched as she courageously fulfilled the duties she had 

sworn to carry out as a member of the Board, even in the face of 

constant political interference and even some personal attacks. 

Those criticisms and attacks were unfair then and they are unfair 

now. 

Ms. Block conducted herself appropriately at all times during her 

previous service and instead of attacks, she deserves our appreciation because without her service, the Board would have lacked a 

functioning quorum and would have had to shut down. We would 

be hard pressed to find a more qualified nominee than Sharon 

Block. 

Keeping the NLRB fully staffed and able to do its work will send 

a strong message to the American people that yes, Washington can 

work, and our government can function. It will give certainty to 

businesses and assure workers that someone is looking out for 

their rights and ready and able to enforce our Nation’s labor laws. 

I look forward to hearing Ms. Block’s testimony today and to moving her nomination expeditiously through this committee and 

through the Senate. 

I’ll turn now to Senator Alexander. 

OPENING STATEMENT OF SENATOR ALEXANDER

Senator ALEXANDER. Thanks, Senator Harkin. 

Ms. Block, welcome. It’s good to see you. 

As we meet here today, the National Labor Relations Board has 

hundreds of decisions that it must re-decide, 436 decisions made 

between January 2012 and July 2013 that were made invalid by 

the U.S. Supreme Court’s unanimous ruling this summer. This 

3 

enormous load of cases to re-decide is no surprise to me, and it 

shouldn’t be a surprise to anybody. 

In December 2011, 47 Republican Senators sent a letter to the 

President urging him not to go around Congress with his appointments to the NLRB. The President ignored our request and appointed Ms. Block along with two other individuals to the NLRB 

in January 2012. He wasn’t just ignoring our opinion. The President ignored the Constitution. He used the recess appointment 

power at a time when the Senate wasn’t in recess. That’s not just 

my opinion. It’s a fact. 

The D.C. Circuit said the appointments, including Ms. Block’s, 

were unconstitutional. The Fourth Circuit Court of Appeals 

weighed in and said the recess appointment of Ms. Block violated 

the Constitution. This summer, the Supreme Court unanimously 

said it was unconstitutional. The only people who seem not to realize that were the President and the nominees themselves, including 

Ms. Block. Her appointment, along with Richard Griffin, is why the 

NLRB has before it today 436 decisions that must be re-decided. 

This has created a lot of wasted time and money, a great deal 

of extra work, confusion for workers, confusion for employers, who 

count on the Board to properly and fairly adjudicate their disputes. 

The Board’s own website says it has a, ‘‘daily impact on the way 

America’s companies, industries, and unions conduct business.’’ 

The process for re-deciding the cases will extend the legal expenses and uncertainty for hundreds of employees, employers, and 

unions who are party to the case. Instead of being able to focus on 

strengthening and growing a business, these folks are trapped in 

NLRB limbo. 

Ms. Block is here today to be considered to serve on the Board, 

this time proposed in the constitutional way. She has been nominated for a term that would begin in December, a little over 3 

months from now. The President has submitted her nomination 

with adequate opportunity for Congress to consider that nomination. That’s a good start. But I’m concerned that the American 

businesses and workers who count on the NLRB for stability are 

being asked to rely on the judgment of someone who chose instead 

to create confusion and instability. 

Ms. Block served on this Board under an unconstitutional recess 

appointment. She stayed in that position 18 months. She participated in hundreds of decisions. I said then that her actions revealed a troubling lack of respect for the Constitution’s separation 

of powers and the Senate’s constitutional role to advise and consent. 

Putting that aside, I am concerned, too, that in her time on the 

Board, Ms. Block has demonstrated a willingness to tilt the playing 

field toward organized labor. I’ll have some questions about that 

when my time comes. This nominee would not be the first to tilt 

the playing field of the NLRB one way or the other. The NLRB has, 

in my opinion, become more partisan in recent decades. Policy reversals and dramatic shifts are becoming regular expectations with 

each new administration. 

So I intend, with Senator McConnell of Kentucky, next week to 

introduce legislation to restore the National Labor Relations Board 

to its intended role of acting as an umpire and applying the law 

4 

fairly and impartially instead of acting as an advocate for one side 

over the other. That’s how important I think the Board is and how 

important I think it is that it be a stabilizing force. 

Ms. Block, I thank you for being here. I look forward to hearing 

your thoughts and having a chance to ask some questions. 

The CHAIRMAN. Thank you, Senator Alexander. 

We welcome you, Ms. Block, and for purposes of introduction, I’ll 

yield to Senator Murphy. 

Senator MURPHY. Thank you, Mr. Chairman, and thank you, 

Senator Alexander, for holding this hearing. I’m proud to be back 

again to introduce a dedicated public servant from Westport, CT, 

whose parents made the trip down from Connecticut to see their 

daughter’s nomination considered by this committee. 

I’ve had the pleasure of getting to know Ms. Block during her 

previous confirmation process but also through her work as a senior counselor to Secretary Perez at the Department of Labor where 

she worked very hard on getting long-term unemployed Americans 

back to work and helping at-risk youth develop the job skills necessary to succeed in today’s economy. We thank her for her great 

work there. 

Many on this committee, of course, will remember Ms. Block 

from her time as the senior labor and employment counsel for this 

committee under Chairman Kennedy. She did a lot of good work 

there, but, most notably, helped pass a crucial piece of legislation 

that will ensure fairness in the workplace and pay equity for 

women, the Lilly Ledbetter Fair Pay Act. 

As you know, Mr. Chairman, the NLRB is the most important 

safeguard for both employees and employers that we have today. 

I’m glad that we’re considering such a fair and diligent member to 

serve on the NLRB. Ms. Block has served with integrity as a Board 

member since January 2012, where at her last confirmation hearing, even many of my Republican colleagues who opposed her nomination noted her long career in public service and her stellar qualifications to be an NLRB Board member. 

We welcome you back to the committee and look forward to your 

testimony. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murphy. 

Welcome again, Ms. Block, back to the place where you—I think 

you almost started here, if I’m not mistaken, on this committee. 

Your statement will be made a part of the record in its entirety. 

Please proceed as you so desire. 

STATEMENT OF SHARON BLOCK, NOMINEE FOR MEMBER, 

NATIONAL LABOR RELATIONS BOARD, WASHINGTON, DC 

Ms. BLOCK. Thank you so much, Chairman Harkin, Senator Alexander, Senator Murphy, members of the committee. I am honored and humbled to appear before you again as a nominee for the 

National Labor Relations Board. 

The Board, for the first time in a decade, is operating under regular order with five confirmed members and only one vacancy on 

the horizon. As a result, the Board has a chance to undergo an orderly transition from one Board to the next, without the uncertainty and disruption that comes with multiple Board member vaVerDate Nov 24 2008 14:01 Mar 27, 2017 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\DOCS\24455.TXT DENISE
5 

cancies that in the recent past have extended for long periods of 

time and threatened the existence of a quorum. This allows the 

Board members and their staffs to concentrate on doing the public’s 

work. 

I have spent the largest part of my career as a career civil servant with the Board. I started my career in private practice representing management in employment cases at Steptoe and Johnson, but I came to the Board when my career was still in its formative stage. I had the privilege to serve Boards in both Democratic 

and Republican administrations. 

My service as a career attorney culminated with my position on 

the staff of former Republican Chairman Bob Battista. When I 

served as senior counsel to Chairman Battista, I always appreciated the frank case discussions and respect he showed the dedicated career attorneys on his staff. As a former career attorney, I 

would never underestimate the value of the expertise of the Agency’s exceptional career staff. 

As Senator Harkin suggested, since the last time I appeared before you, the Supreme Court has issued its decision in Noel Canning. Although my expertise is in labor law, not constitutional law, 

as a lawyer, I assure you I have an unwavering respect for our judicial process in resolving difficult legal issues like those involved 

in that case. So I have a keen appreciation of the process that 

brought us to this point and the utmost gratitude for the opportunity to sit before you again today as a nominee. 

I am also grateful to this committee and the Senate for confirming a full Board. As someone who has spent the better part of 

my career at the Board, I can unreservedly say that it was a good 

day for the Board when Nancy Schiffer and Kent Hirozawa began 

the process that culminated in their confirmation with Chairman 

Pearce and Members Johnson and Miscamarra. 

I am especially grateful to Member Schiffer who came out of retirement to answer the call to public service and who has so ably 

led the staff that I had had the honor to work with. Anyone who 

cares about the Board and the efficient functioning of government 

on either the labor or management side of the Board’s cases must 

agree that a fully confirmed, five-member Board is the ideal, as the 

statute prescribes. 

If fortunate enough to be confirmed for a seat on the Board, I 

would bring with me passion for the kinds of cases that make up 

the heart of the Board’s docket, the cases where the parties have 

no interest in making law or grabbing headlines. In such cases the 

Board, as a neutral adjudicator, brings resolution to parties who 

just want to have their voices heard and their views fairly considered. Throughout my different tenures at the Board, these are the 

cases that have dominated the Board’s docket and which I have 

found the most rewarding. 

The reality of my time on the Board, as with most Board members, is that the majority of cases that I participated in were unanimous decisions that applied longstanding precedent. They are the 

cases where we make a difference in people’s lives by getting them 

their jobs back after they have been unlawfully discharged or facilitating the bargaining process by allowing companies to move forward running their businesses when a genuine impasse in negotiaVerDate Nov 24 2008 14:01 Mar 27, 2017 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\DOCS\24455.TXT DENISE
6 

tions has been reached. I remain dedicated to moving these cases 

as fairly and efficiently as possible. 

I would also bring with me lessons learned in this room during 

my tenure on the committee’s staff. When I was here last year, I 

shared the important lessons that I learned from participating in 

this committee’s work on the MINER Act. This committee continues a strong tradition of working across party lines to pass significant bipartisan legislation. The committee’s great accomplishments are examples that I would carry with me to the Board of 

what good work for the American people can be achieved when we 

work amicably across the aisle. 

In closing, I would like to thank Secretary Perez for having given 

me the opportunity over the past year to continue to serve the public in this administration. He is a remarkable leader from whom I 

have learned so much. 

And I would like to thank my family that is here with me for all 

their love and support during the ups and downs since they last 

sat in those seats. Since I was here last year, my children have 

graduated from high school. So my son, Eli, who started at Oberlin 

College just a few weeks ago, is not here today. But my daughter, 

Charlotte, who will be starting at University of Chicago in a couple 

of weeks, is here, with my husband, Kevin, my parents, Lois and 

Joseph Block, my uncle, Michael Fuchs, and my aunt, Froma Sandler. 

Thank you for the opportunity to offer these remarks. I welcome 

your questions. 

The CHAIRMAN. Thank you very much. I’m sorry about the sound 

system. I don’t know what’s going on here, but I think it’s a little 

bit better now. 

First of all, we welcome you and all your family members who 

are here. Welcome to the Senate and the Senate Committee on 

Health, Education, Labor, and Pensions. 

We’ll start a round of 5-minute questions. 

First of all, Ms. Block, some of my colleagues, in my opinion, I 

believe, have unfairly criticized your previous service as a member 

of the Board. If anything, I believe that they should be praising 

your commitment to public service. 

I know the last few years have been a bit of an ordeal for you 

and your family with multiple nominations, public criticism, a lot 

of uncertainty, all of which was due to factors entirely beyond your 

control. You have done nothing but answer a call to public service 

and do your best to do your duty, and I commend you for your continued willingness to serve after all that you’ve been through. 

You mentioned your previous service at the Board and the Supreme Court’s decision in Noel Canning in your opening statement. 

I’d like to give you the opportunity to share with the committee the 

thinking that went into your decision to continue to serve when the 

President’s recess appointment authority was challenged in Federal 

court. I’m also interested in learning more about your decision to 

continue to issue case decisions at that time. If you could respond 

to that and tell us about your thinking at that time, I would appreciate it. 

Ms. BLOCK. Thank you, Senator. Thank you for the question and 

I appreciate the opportunity to continue this conversation that we 

7 

started last summer on this issue. If I start at the beginning, I was 

asked whether I was willing to be nominated, and I was honored 

to be asked, and I made a commitment in accepting the opportunity to be nominated. I made a commitment to serve, and I took 

that commitment very seriously. 

When I got to the Board, I then took an oath to serve to the best 

of my ability. And, again, I took that oath very seriously. I made 

my commitment and took that oath in the context of understanding 

that obligations under the National Labor Relations Act aren’t suspended during disputes over composition of the Board. 

While I was aware, of course, of the disputes over the Board’s 

composition during my service, I was also aware of the system in 

place to resolve those kinds of disputes. I have a deep respect for 

the judiciary and that process by which the Federal courts resolve 

constitutional questions subject, obviously, ultimately to Supreme 

Court review. 

During my tenure, the Supreme Court had not made that ultimate decision. As you noted, the decision came just this past summer. But the process of review moving toward the Supreme Court’s 

resolution was ongoing. When the D.C. Circuit issued its decision 

in Noel Canning, again, that process continued. The solicitor general filed a Petition for Certiorari. The court granted that petition. 

So we knew we were moving toward the ultimate resolution of the 

question. That was true during the entirety of my service. 

When I looked at the importance to me of the oath that I had 

taken to serve and to serve to the best of my ability, the fact that 

I knew that the process was underway to ultimately resolve the 

issue, I thought the best way to honor that oath was to continue 

to serve and to ensure that that process that the Constitution prescribed for resolving constitutional questions was in place and 

would move toward that resolution. 

The CHAIRMAN. And isn’t it true at that time that there was a 

split in the different circuits on this issue? 

Ms. BLOCK. In fact, as the D.C. Circuit noted in its decision in 

Noel Canning that there had been, to the extent that the issues 

raised in that case had been addressed at all by other circuits— 

that there was a split in the reasoning in those cases. 

The CHAIRMAN. So here you are. You’re on the Board. The D.C. 

Circuit issues one opinion. There are opinions in other circuits that 

contradict that, and, of course, those are the times when, hopefully, 

the Supreme Court then takes it up and resolves those differences, 

which it did, but not until this summer. 

So let me understand this. While you took an oath of office to 

serve and to fulfill your oath, your service was not circumvented 

by just the D.C. Circuit, because you’ve got to look to another circuit for just the opposite result. Therefore, it seems to me that in 

those cases, you have an obligation. Any public servant has an obligation to continue to serve and to fulfill their oath of office until 

such time as this is resolved by the Supreme Court. 

That’s why I have said that I think it has been unfair for people 

to say that you should have resigned simply because of one circuit, 

or you can’t issue decisions. The wheels of government and other 

entities go on regardless of whether one court says this—there’s always a final adjudication, whether it’s an appeal process in civil or 

8 

criminal courts, and until that final adjudication is made, people 

are not denied their right or their obligation to fulfill their contractual agreements or their, in this case, oaths of office. 

That’s why I’ve always felt that it was just not fair to criticize 

you for fulfilling what was your oath of office in the face of two disparate rulings by circuit courts. Now, today, obviously, that’s different because the Supreme Court has made the decision on that. 

Thank you, Ms. Block. 

Senator Alexander. 

Senator ALEXANDER. Ms. Block, during an organizing campaign, 

the current law requires employers to provide union organizers 

with a list of employee names and home addresses. This is called 

the Excelsior List. For example, in Chattanooga, TN, we have an 

ongoing organizing effort at the Volkswagen plant. In a secret ballot election last February, the majority of employees rejected the 

United Auto Workers bid to unionize the plant. The vote was 712 

to 626. 

The NLRB is in the middle of a regulatory effort to expand the 

requirement that more information about these employees be given 

to the organizing union. They are proposing including the telephone number of the employee, the email address, the employee’s 

work location, the shifts, the job classifications. It seems like everything but attaching a GPS to the employee. 

So my question is if you were one of the 712 Volkswagen employees who voted no, that you didn’t want to organize the union at the 

Chattanooga plant, would you want your boss to hand over to the 

union your email address to the union organizers? 

Ms. BLOCK. Senator, thank you for the question. I think what 

you are alluding to is the proposed rule that’s currently pending 

with the Board that does address this issue over information that 

needs to be provided. As you mentioned, it’s now currently—— 

Senator ALEXANDER. No. What I’m asking is if you were one of 

those who voted no, you didn’t want the union to organize, would 

you want the NLRB to order your email address turned over to the 

union organizers? 

Ms. BLOCK. My understanding of the way that the process works 

is that, as you pointed out, the information now, which is name 

and home address, is turned over prior to the election when, presumably, employees are in the position of making a decision about 

how they want to vote in the election. 

Senator ALEXANDER. And the proposal is to expand that, but I’m 

asking would you want your work location, your shift, your job 

classification, all that information to be turned over to the union 

organizers prior to the election? 

Ms. BLOCK. My understanding is that that is part of the proposal 

that’s currently pending before the Board, a proposal that was 

made after I left the Board. I don’t think it’s appropriate for me 

to voice an opinion on what the law should be or whether that particular provision should be—— 

Senator ALEXANDER. I’m not asking what the law should be. I’m 

just asking whether you think, if you were an employee, you would 

like to have all that information turned over. 

Ms. BLOCK. I think a lot of people know that information about 

employees. I’m trying to be appropriate about the kinds of positions 

9 

when there’s been issue—the answer to that question necessarily 

implicates an issue that there is a possibility if I’m fortunate 

enough to be confirmed that I would have to consider. I do understand, although I wasn’t on the Board when the latest proposed 

rule was—— 

Senator ALEXANDER. So you don’t want to say whether you would 

like to have all that information turned over to the union organizer 

if you were an employee. 

Ms. BLOCK. I just think it’s more appropriate to be sure that 

were I to return to the Board that I have the benefit of an open 

mind in deliberations with my colleagues about that. 

Senator ALEXANDER. Would you at least insist that if this rule 

goes forward that employees have an opportunity to opt out of this? 

If an employee says, ‘‘Look, I want some privacy. I don’t want to 

be bothered at home. They already have my name and home address, but I don’t want them to have my telephone number, my 

email, my work location, my shift, my job classification. I’d like to 

opt out of that,’’ do you think that would be a reasonable right for 

an employee to have? 

Ms. BLOCK. Although I haven’t been privy to the comments that 

have been submitted pursuant to the current proposal, I would 

imagine that issue is addressed in the comments. And if I have the 

opportunity to be at the Board and be in a position to consider that 

issue and consider comments raised, I can assure you I would take 

those comments very seriously as part of the deliberative process, 

consider the reasons why a commenter made that argument, and 

deliberate with my colleagues about the best way to address the 

concerns raised or the suggestions made in the comments. 

Senator ALEXANDER. Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you. In order, I have Senator Murphy, 

Senator Hatch, Senator Casey, Senator Scott, Senator Isakson. 

Senator Murphy. 

STATEMENT OF SENATOR MURPHY

Senator MURPHY. Thank you very much. 

Good to see you again, Ms. Block. 

Thank you, Mr. Chairman, for having this hearing. 

One thing I always struggle to understand are two very different 

numbers that exist in the workforce today. Polls consistently show 

that about 53 percent of workers want to be part of a union to be 

able to negotiate for better working conditions, and yet only 7 percent of workers are represented. 

Maybe part of the explanation for that is that there’s at least one 

study out there that shows that amongst workers who have openly 

advocated for a union during an election campaign, over a period 

of time after they advocated for the union, one out of five of those 

workers ended up getting fired. Another is that the process of going 

through the election has gotten longer and longer in part because 

of litigation that gets introduced and disputes that get sent to the 

NLRB in the middle of the election process. 

I wanted to ask a question about the NLRB regulations that 

have started to make a little bit more sense of the election process. 

They’ve been criticized as requiring quickie elections where—and, 

as I understand it, this is really about saying to both employers 

10 

and employees that if you have disputes, let’s litigate those after 

the elections rather than hold up the process. 

I wanted to just ask you a very general question about how you 

see the implementation of that new set of rules going and then 

whether you think that there are additional steps that need to be 

taken in order to make sure that that election happens in a timeframe that is fair, not advantageous to employers or employees, but 

that gets the job done with enough time in order for both sides to 

make their case, but not so much time that it becomes a barrier 

to the majority of workers who, I would argue, are interested in 

having a discussion about organization. 

Ms. BLOCK. Thank you for the question, Senator. I have to start 

at the same place where I left off with Senator Alexander. To the 

extent that the proposal is still pending before the Board—and, 

again, it was a proposal that was promulgated after I left the 

Board—if I was fortunate enough to come back, I would certainly 

take very seriously the opportunity to review the record, and to the 

extent that there are comments in the record that present that 

point of view or the point of view that Senator Alexander offered, 

I would take those comments very seriously, but also to deliberate 

with my colleagues who were on the Board at the time that the 

proposal was made to understand the thinking behind the proposal 

and to hear all of the Board members’ views on what they believe 

the objective of the rulemaking was and participate in that deliberative process to come to a conclusion. 

Senator MURPHY. Thank you. I’m going to have mercy, given the 

state of your microphone. 

Mr. Chairman, I would add that the oath that we all take to 

serve is a very serious one, and Ms. Block took that oath. Notwithstanding the controversy in the courts, she was still bound by the 

oath that she took to carry out her duties as a member of the 

NLRB and to carry out the administration of the laws of the 

United States. I’m glad that she took that oath seriously enough 

to make sure that she served her country, as she has during her 

entire career, even while there was a legitimate controversy pending before our Federal court system. 

I thank you again, Ms. Block, for your perseverance in pursuit 

of justice for employers and employees and your willingness to 

come back and serve again despite often the personal nature of this 

controversy over the last several years, and I look forward to supporting your nomination. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murphy. 

Senator Hatch. 

STATEMENT OF SENATOR HATCH

Senator HATCH. Thank you, Mr. Chairman. 

Ms. Block, welcome to the committee that you know well. As you 

know, there are scores of NLRB decisions that have to be reconsidered after the Supreme Court’s decision in Noel Canning, including 

many decisions in which you’ve participated. Obviously, there is 

some question as to your ability to be impartial as the Board reconsiders these cases. That being the case, would you be willing to 

11 

recuse yourself from participating again in those same cases where 

you participated before that the court has found improper? 

Ms. BLOCK. Thank you for the question, Senator. I can assure 

you that if I was fortunate enough to come back to the Board and 

a party was to make a request that I recuse myself from a case, 

I would, of course, take that request very seriously, whether the 

basis of it was my prior service on the Board in a case impacted 

by Noel Canning or for any other reason. And I would certainly 

consult with the agency’s ethics officials to determine—to look at 

those arguments made and to determine whether recusal was necessary or not. I can assure you that I would do that. 

More generally, though, in thinking about approaching cases that 

could come back that I had acted on before in my prior service, I 

can certainly pledge that if a recusal motion was not made, I think 

even in that respect, I have an obligation to assure the committee 

and my colleagues that I would keep an open mind regarding the 

decision. 

One big factor that would be different in looking at a case that 

came back to the Board than the first time is the deliberations with 

my colleagues, which I did find during my prior service to be a very 

important part of the process of making a decision. And, obviously, 

I would have different colleagues at the Board today, and I happen 

to have the privilege of knowing all four continuing Board members, some of them because I served with them, like Chairman 

Pearce, and some I don’t know as well. But I know all of them well 

enough to know that I have a great deal of respect for their experience, and I would have a great deal of respect for their opinions 

in that deliberative. 

Senator HATCH. Ms. Block, I want to ask you about a particular 

case you decided when you were on the Board the first time, which 

was held in abeyance by the D.C. Circuit pending the Supreme 

Court’s decision in Noel Canning. The decision I’m referring to was 

in the Fresenius case. 

To refresh your memory, that case involved allegations of sexual 

harassment where a pro-union employee scrawled sexually obscene, 

threatening, and harassing statements on union literature left in 

a common area in the workplace directed at women whom he believed might vote to decertify the union. Naturally, the women employees felt threatened, and they asked their employer to undertake a sexual harassment investigation, as the employer was required to do under Title VII of the Civil Rights Act. 

When the culprit was questioned by management, he lied and denied any involvement. However, later he called a number which he 

believed belonged to his union business agent and blurted out a 

confession that he was responsible. The only problem was that he 

had mistakenly called the company’s human resources department. 

And when they identified that they were not the union but the employer’s HR department, the culprit denied his own identity. He 

was subsequently terminated for lying. 

The NLRB, however, ruled that since his conduct occurred during the union decertification program or campaign, he was engaging in protected concerted activity and that his termination violated Section (8)(a)(3) of the National Labor Relations Act and that 

he should be reinstated. To me, the reasoning behind this decision 

12 

is mind boggling. It puts the employer in a dilemma of having to 

choose between violating Section 8 of the NLRA as you saw it and 

Title VII of the Civil Rights Act regarding prompt investigation of 

sexual harassment allegations where EEOC guidelines require 

truthfulness in the investigation and prompt remedial action. 

In your opinion, in these types of situations, which law should 

the employer be required to obey, the NLRA under the Board’s reasoning in Fresenius or Title VII under the Civil Rights Act? Which 

law better protects employees? 

Ms. BLOCK. Thank you for the question, Senator. Again, I want 

to be careful because, as you noted, the cases that I participated 

in before could come back to the Board if I’m fortunate enough to 

be confirmed, and I would have to look at them again, and I would 

want to keep the pledge that I just made, keeping an open mind. 

So discussing these issues outside of the particulars of Fresenius— 

because I do think, one, that decision speaks for itself certainly better than I can relate my reasoning to you sitting here now a year 

or so later. 

But, I think that what you touched on is a case of—it involves 

competing interests, the employer’s legitimate interest in investigating what they perceive as misconduct in the workplace and the 

Board’s obligation to protect employees who engage in concerted activities. So, again, without addressing the particulars in Fresenius, 

things that the Board will traditionally look at to balance those interests are whether the employer has tolerated that kind of behavior in the past, and the Board, on the particular issue of employees 

not being truthful about their protected activity—that’s a Board 

doctrine that had existed for a long time, and the Board has found 

ways to balance those interests with employers’ perception of their 

responsibilities under Title VII. 

These cases bring to the Board a need to look at the particular 

facts and circumstances, what’s the history of how the employer 

has dealt with similar situations in the past, and to figure out how 

to make those two interests balance. 

Senator HATCH. Mr. Chairman, my time is up. 

The CHAIRMAN. Thank you, Senator Hatch. 

Senator Casey. 

STATEMENT OF SENATOR CASEY

Senator CASEY. Mr. Chairman, thank you very much. 

Ms. Block, we’re grateful you’re here and grateful for your service. Just by way of a brief statement on the question of your remaining in the aftermath of a circuit court decision, I would argue 

that there are at least four reasons, either individually or conjunctively, that would warrant you staying. 

First, there was an outstanding matter that had not been resolved by the Supreme Court. Second, you did take an oath of office 

which is a grave, serious decision. Third, if you resigned and Mr. 

Griffin did as well, there would be no functioning quorum. And, 

fourth, there is precedent for a member remaining in the aftermath 

of an adverse circuit court decision. I would argue for all those reasons that your decision was appropriate. 

I wanted to talk to you about two issues. One is your previous 

experience and, two, more generally, public service. I think often 

13 

we might need a little reminder around here about the origins of 

the National Labor Relations Act, the findings that undergirded 

the statute. I was reading from the findings today, and I’ll read in 

pertinent part, because I think it bears repeating. 

One of the findings says as follows, 

‘‘Experience has proved that protection by law of the right of 

employees to organize and bargain collectively safeguards commerce from injury, impairment, or interruption, and promotes 

the flow of commerce by removing certain recognized sources 

of industrial strife and unrest.’’ 

Then it goes on to say a similar thing that relates to labor practices 

that would hurt the free flow of commerce. 

So you have the Act, the statute, focused on the question of the 

free flow of commerce and also the constitutional right to associate. 

That’s what we’re talking about here in terms of the Act that we’re 

debating. I think sometimes the unfortunate reality is that some 

people in Washington don’t agree with the Act. They might disagree with the interpretation of the Act or recent decisions, but 

some of them seem to have a real problem with the National Labor 

Relations Act itself. At least, that’s my reading of some of the reaction. 

But I wanted to raise something with you. You said in your testimony—and I’m quoting it from the last page of the testimony— 

talking about, ‘‘the important lessons I learned from participating 

in this committee’s work on the MINER Act.’’ And then you go on 

and talk about working across the aisle. 

I had a hearing as the chairman of a subcommittee, Employment 

and Workplace Safety, about the problem we’re having with getting 

miners their benefits in a timely fashion. It’s the ultimate manifestation of justice delayed is justice denied. So we had an important hearing here, one of the few hearings involving miners in a 

long, long time. But I wanted to ask you about your experience 

working on the committee in the context not just of that Act, but 

working across the aisle. 

Ms. BLOCK. Thank you, Senator, for the question. It is a fond 

memory that I have of working on this committee, generally, for 

Senator Kennedy but also, in particular, having had the privilege 

to work with the committee on the MINER Act. I think it was an 

example of what this committee does best in terms of that great 

tradition of moving important bipartisan legislation. 

There are a few sort of big lessons that I learned. The first is the 

value of considering the perspectives of all stakeholders. In the 

mining community, mining issues, as you all know, are interesting 

in that there are very defined stakeholders, and you just can’t get 

anywhere not listening to all of the stakeholders and only engaging 

with one side, and I thought that was something that the committee did very well and together. 

Also, the necessity of finding practical solutions. To have big 

grand ideas about things might sort of be fun, but when you’re 

talking about what goes on in a mine, you have to be very practical. You have to really think it through. Is the solution that 

you’re coming up with something that’s actually going to work for 

those people who are going to be affected by what you do. That was 

a big part of what we struggled with, again, together to figure out 

14 

whether these new requirements are going to make sense underground in a mine. 

And, finally, and I think maybe especially for my service on the 

Board, the most important lesson I learned was the virtue of principles compromise, which I think was a lesson that Senator Kennedy taught particularly well. But as I talked about when I was 

here last summer, I know from being privy to the negotiations that 

went on that neither side got everything they wanted in that bill. 

But it was important in light of the context in which the impetus 

for negotiating the bill—a terrible tragedy that revealed the fact 

that things needed to be better. It was just vitally important, and 

Senator Enzi, Senator Isakson, Senator Murray, and Senator Kennedy told us to get something done. And, again, it just would have 

been a tragedy to hold out for everything and not take the opportunity to get something done. So I think that virtue of principle 

compromise was really the most important lesson that I’ve learned 

and I’ve tried to take with me. 

Senator CASEY. Thanks very much. Thanks for your commitment 

to public service. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you very much, Senator Casey. 

Senator Scott. 

STATEMENT OF SENATOR SCOTT

Senator SCOTT. Thank you, Mr. Chairman. 

Ms. Block, thank you for being here with us this morning, and 

we’ve heard—not well, because we can’t hardly hear you, but I’m 

sitting in a position where I can, at least, and I also know that you 

and I will probably, hopefully respectfully, disagree on a number of 

issues as we have in the past, and I have a feeling that we’ll continue to disagree on those issues in the future. 

But I don’t believe that it’s the Act that we do not like. It’s the 

lack of common sense that really seems to be a challenge from my 

perspective in looking for, as you said, the very practical solutions 

to some of the challenges that we face and seeing the NLRB as an 

arbiter, an unbiased, impartial arbiter. 

In reading your statement, one of the quotes I like is, 

‘‘Although my expertise is in labor law, not constitutional 

law, as a lawyer, I have an unwavering respect for our judicial 

process in resolving difficult legal issues,’’ like those involved 

in the case that you are referring to. 

And, certainly, we both know that the five-member Board is supposed to be a Board that is fair and unbiased. It seems to me that 

over the last several years, and certainly during the time that you 

were on the Board, it seems to have tilted in the direction of just 

being more of a pro-union Board as opposed to a fair, unbiased 

Board. 

I highlight the comments—referring to another case—made by 

U.S. District Judge Arthur Schwab in speaking about the NLRB 

subpoenas and the UPMC documents. He said, 

‘‘The court has never seen a document request or subpoena 

of such a massive nature. The requests seek highly confidential 

and proprietary information that has little to do with the unVerDate Nov 24 2008 14:01 Mar 27, 2017 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6601 S:\DOCS\24455.TXT DENISE
15 

derlying labor dispute’’ and ‘‘arguably moves the NLRB from 

its investigatory function and enforcer of Federal labor law to 

serving as the litigation arm of the union and a co-participant 

in the ongoing organization effort of the union.’’ 

It appears to me that the sense that I’ve read from the judge is 

consistent with the direction in which I have great concerns about 

the NLRB heading. I’d love to hear your comments on how that 

will be different this time around if you’re on the Board. And I will 

note just one example that really causes me to scratch my head— 

and I would pull my hair out, but as you can see, I’ve already done 

that serving in Congress—and that is the Karl Knauz Motors BMW 

case from 2012 where you all struck down a courtesy rule. 

Let me read that rule, because if we’re looking for a very practical, common sense courtesy rule, here it is. It simply says, 

‘‘Courtesy is the responsibility of every employee. Everyone 

is expected to be courteous, polite, and friendly to our customers, vendors, and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any 

other language which injures the image or reputation of the 

dealership.’’ 

The Board found this rule unlawful. I can’t get my arms around 

that decision. 

Ms. BLOCK. Senator, thank you for the question. I appreciate the 

opportunity to continue this conversation about this issue. I do 

want to be careful, though, because, as I said previously, to the extent that we discuss cases that I participated in before that could 

be before the Board again, if I were fortunate enough to be confirmed, I want to be careful not to offer opinions that would suggest 

that I didn’t have an open mind if the parties chose to come back 

to the Board. 

But on this issue, in general, about courtesy rules, I certainly 

agree, and I hope that most people would agree that employers and 

employees have an interest in having a courteous, professional 

workplace with proper decorum. And I think, in general, these 

cases can be very fact specific, but they do present, again, as most 

cases that come before the Board do, or often do, competing interests. 

Employers certainly have a legitimate interest in being able to 

maintain that professionalism and decorum in the workplace. Employees have interest in being able to discuss their concerns about 

the workplace with each other and the public. So these cases, 

again, come down to trying to see how those competing interests 

work out. My memory of the Board’s cases, though, is that the 

Board does try to draw a line to the extent that the rule deals 

strictly with professionalism and decorum, that those rules don’t 

create that conflict. 

Senator SCOTT. Let me ask you just a quick question. I know my 

time is about done. Five minutes isn’t what it used to be. 

The Board found this rule unlawful, contending that employees 

would reasonably believe that it prohibited statements of protest or 

criticism of the employer. My question is: Please help me understand how, pray tell, does that courtesy rule somehow infer that it 

would be inappropriate for folks to stand in opposition to someVerDate Nov 24 2008 14:01 Mar 27, 2017 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6601 S:\DOCS\24455.TXT DENISE
16 

thing that they didn’t believe in while the rule specifically and 

clearly states the desire for a professional environment where 

coarse language and respect for others was the only objective. 

Ms. BLOCK. Again, I want to be careful about not commenting on 

the facts of that particular case. 

Senator SCOTT. How about just the thought process put into 

making the decision as it relates to why a courtesy rule is somehow 

not courteous? 

Ms. BLOCK. Again, I think what the Board looks at is does the 

rule extend beyond simply requiring courtesy and professionalism 

in the workplace and instead extend to behavior that would be perceived by the employees as limiting their ability to speak frankly 

and honestly about their concerns about their terms and conditions 

of employment, and that’s an area that’s protected by the Act. 

Senator SCOTT. Let me just close my comments by suggesting 

that a courtesy rule asking the employees to be responsible with 

their conversation and respectful to one another and not to use profanity toward one another somehow doesn’t seem to fall into the 

category that we are talking about today. I’ll finally say that there 

are just a number of other indicators that give me reason to pause 

and be concerned for the lack of an equilibrium on the Board and 

during the time in which you served on that Board as well. Thank 

you very much. 

The CHAIRMAN. Thank you, Senator Scott. 

Senator Isakson. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman. 

I appreciate you mentioning the MINER Act because we worked 

on that together, and I think it’s a good example of what’s not true 

right now in terms of the labor management conundrums that we 

have in Washington. But in the MINER Act, Senator Kennedy and 

Senator Enzi operated under the 80–20 rule. They didn’t rush to 

judgment, but they tried to find common ground on the problem. 

As it turned out, the unions were immediately blaming the management for shortcomings causing the explosion. Management was 

overly defensive of itself. The committee didn’t rush to judgment. 

And as it turns out, after months of investigation, a lightening 

strike that hit an underground cable that had been abandoned was 

the cause of the explosion. 

The MINER Act, instead of rushing to judgment, ended up bringing about new standards in terms of re-breathers and equipment 

that would be available in the mine for the safety of miners, but 

didn’t create an enemy out of management or an enemy out of 

labor. It approached the situation based on the problem at hand 

after it had all the facts. 

Use that as a preface to my first question, which I’m going to try 

and ask in a way that you can answer without prejudicing yourself 

on a future decision. Do you think the general counsel for the Department of Labor should opine on a decision with a similar decision pending before the NLRB, meaning should the general counsel 

make law themselves while a question before the NLRB is pending 

and not yet decided? 

17 

Ms. BLOCK. I’m sorry. I’m trying to follow that. The general counsel—are you saying at the Department of Labor or at the NLRB? 

Senator ISAKSON. At the NLRB. 

Ms. BLOCK. Whether the NLRB general counsel should opine on 

an issue that will ultimately be before the Board? 

Senator ISAKSON. There’s a similar case pending before the 

Board, and they go ahead and opine on another case before it gets 

to the Board, but it’s the same question. 

Ms. BLOCK. The general counsel, as a party before the Board, 

will always put forth their theory of the case. So in the way that 

the Board system works, I think that the general counsel always 

has to act first. I guess if your question is going more to whether 

to continue to subsequently pursue the same theory before the 

Board has had a chance to act on the question, again, that’s, I 

guess, a strategic decision that the general counsel has to make. 

Until the Board resolves an issue, the general counsel obviously 

can’t know whether those subsequent decisions will stand up or 

not. 

Senator ISAKSON. What I’m referring to, specifically—and I know 

you probably will take an out on this, and I respect that because 

of what may or may not happen. But the general counsel opined 

on a case involving McDonald’s that the employees of a franchisee 

were equal employees of the master franchisor, meaning that a 

McDonald’s franchise employee is also an employee of McDonald’s 

Corporation, which is a joint employer relationship, which is a sea 

change in terms of the way that we’ve ever looked at franchise or 

franchisee and responsibility. At the time they made the McDonald’s case ruling, the Browning-Ferris Industries case, a Pennsylvania company, is still before the NLRB on exactly the same question, a question that represents a sea change in the treatment of 

master franchisors and franchisees and will have a dramatic effect 

on business. 

I traveled the State the month of August going to most every 

major MSA in my State and a lot of smaller ones as well. In Columbus, GA, I ran into a franchisee of McDonald’s Corporation that 

has 23 franchise stores. This opinion is going to threaten to put 

him out of business, raise the cost of his business to be a non-competitive environment, and all over a decision that was made by a 

general counsel in the absence of a final decision by the Board 

that’s pending in another case which is the exact same question. 

So my point is when you prefaced your remarks earlier about referring to the MINER Act, if we would blow a time-out at the 

NLRB and look for the 80 percent common ground and look for all 

the facts before we do harm, we would be a whole lot better off in 

those relationships between management and labor. 

I think the problem we have in the country right now is a 

skewed attitude on management and labor. One side favors labor 

and one side favors management, and it’s almost like a contest to 

see who can play ‘‘gotcha’’ first. So I’m not going to ask you to answer a question because that’s a pending decision. But it’s a very 

serious decision for the health and future of the American economy, 

and I hope that the Board will be very judicious in what they decide to do on that case. 

Thank you, Mr. Chairman. 

18 

The CHAIRMAN. Senator Warren. 

STATEMENT OF SENATOR WARREN

Senator WARREN. Thank you, Mr. Chairman. 

Welcome, Ms. Block. It’s good to have you here. You’re being 

nominated to fill the Board seat that Nancy Schiffer will leave in 

December. 

Before I begin with my questions, I just want to take a minute 

to acknowledge Ms. Schiffer and thank her for her service. Her intelligence and dedication to the work of the NLRB has served our 

country well, and we are all grateful. I am pleased now that with 

Ms. Block, we will have a qualified nominee to take over and to 

keep up the good work. 

Ms. Block, I have heard some of my colleagues across the aisle 

attack you for accepting a recess appointment. However, over the 

past 35 years spanning three Democratic Presidents and three Republican Presidents, there have been 29 recess appointments to the 

NLRB, 16 Republican nominees and 13 Democratic nominees. 

The President of the United States asked you to serve your country by joining the NLRB, and your first appointment was consistent with this long, bipartisan tradition of recess appointments. 

Later, when the D.C. District Court decision came out advancing 

a split among the courts, you and other members of the Board followed the longstanding NLRB policy and waited for the Supreme 

Court to resolve the conflict that existed among the courts. 

Can you explain why the NLRB has this policy of waiting for the 

Supreme Court to resolve disputed decisions reached by the circuit 

courts? 

Ms. BLOCK. Thank you, Senator. I think it just comes from an 

understanding of how our Federal court system works. Again, Noel 

Canning was a constitutional issue, but the context in which I’m 

more familiar is just when the Board issues decisions, the Board 

issues those decisions for the country as a whole, not for particular 

geographic areas. 

And it can happen that there are splits in the circuits. The circuit courts sitting in different parts of the country can come to different conclusions. We know that the way our Federal court system 

works is whether it’s an interpretation of the National Labor Relations Act, even more importantly when it’s a constitutional question, the Supreme Court is the ultimate arbiter of those questions. 

Senator WARREN. So in your particular case—but this is part of 

longstanding tradition with the NLRB—we waited for the resolution in the dispute among the circuits about what the appropriate 

rule was in this case on recess appointments, and when the Supreme Court spoke to it, then we knew what the law was. Is that 

a fair statement? 

Ms. BLOCK. Yes, absolutely, and, obviously, I left the Board before the Supreme Court ruled. But, as I mentioned in answer to the 

first question that Chairman Harkin asked, it was important to 

me, and I did know that that process was moving forward throughout the entire tenure that I had on the Board, that after the Noel 

Canning decision came out from the D.C. Circuit, the solicitor general filed a petition for certiorari ensuring that the process toward 

resolution would continue to move in that direction. 

19 

Senator WARREN. Good. I just want to say thank you for your 

willingness to serve and thank you, in particular, for your willingness to serve at the NLRB so that we can have a Board that fairly 

represents the people of this country. 

I have one other question I’d like to ask you about, and that is 

about scheduling. Unpredictable and last-minute scheduling is a 

very serious problem for a lot of low-income and part-time workers. 

Many of these workers want a full time job with stable hours, but 

many jobs today, particularly in service and retail industries, are 

part-time, or if they are full time, they’re often on shifting schedules. 

When work schedules are more stable and more predictable, families experience greater economic security and they’re better able to 

plan for child care and for other family obligations. But I’ve met 

with employees who have been retaliated against solely for asking 

for more stable schedules, not demanding, just asking for some 

scheduling help to attend a college course or to manage child care 

obligations. 

So I am pleased to have joined Chairman Harkin in introducing 

the Schedules that Work Act. This is a bill that would guarantee 

that all employees could request certain scheduling free of retaliation. It would also discourage last-minute scheduling while still giving employers flexibility to make changes based on their business 

needs. 

I understand that it is Congress’ job to write the laws, and the 

NLRB’s job to enforce the rules. But with scheduling practices as 

a growing area of concern, I wanted to ask you if the NLRB has 

been involved in settling disputes on scheduling issues, and if you 

might just help inform us a bit about this issue. 

Ms. BLOCK. Thank you for the question. The Board has long been 

involved in these kinds of issues as a result of them being important to employees and employees joining collectively to ask their 

employers to address the issue. 

Clearly, scheduling is a critical aspect of an employee’s terms 

and conditions of employment, and the National Labor Relations 

Act gives employees the right, either through a collective bargaining representative, if the employees choose that vehicle for expressing their collective action, or just through protected concerted 

activity to raise concerns about terms and conditions of employment. The Act does, in fact, give a way for employees to express 

those concerns, share them with employees in a manner that’s protected. 

Senator WARREN. Thank you very much. I understand that securing a predictable work schedule is one of the reasons that workers often decide to unionize. I hope to continue to work with Senator Harkin to advance our bill so that some flexibility and some 

sensibleness is appropriate and available to all workers in the case 

of trying to make reasonable schedules. 

Thank you very much, Ms. Block. I’m looking forward to seeing 

you on the NLRB. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Warren. 

Before I yield to Senator Alexander, I want to kind of clear up 

something that I keep hearing come up, and that is I think there’s 

20 

a confusion in some minds about the general counsel of NLRB. 

Usually, when you hear of the general counsel to the Department 

of Agriculture or the general counsel to Veterans Affairs, you think 

of them as the advisers to that entity, that that’s their lawyer. 

But that’s not true under the NLRA. People have to understand 

that when you talk about the general counsel—maybe we have to 

have a different name for that person. That person is really sort 

of the prosecutor in some ways, and they take in the information 

on the cases that come to them, and they present the case to the 

Board. 

The NLRB general counsel is not an adviser to the NLRB. That’s 

not their lawyer. That general counsel has a different obligation. I 

think there’s some confusion about how that works. I heard the 

question by Senator Isakson and I think some others that indicate 

to me that the role of the general counsel in the NLRB is different 

than the role of general counsels to other departments and agencies in the Federal Government, very, very, very different under 

the law. 

With that, I’ll yield to Senator Alexander. 

Senator ALEXANDER. Thanks, Mr. Chairman. I only have one 

question. 

Ms. Block, do you believe that Congress, when it wrote the National Labor Relations Act, intended that the quarterback at Vanderbilt University or the women’s basketball player at Iowa State 

who is on scholarship be considered an employee of the university? 

Ms. BLOCK. Again, Senator, as that is an issue that I think is 

likely or may already be pending before the Board, I think it would 

not be appropriate for me at this time to give an opinion. I can assure you, though, that I will look carefully, if I’m fortunate enough 

to be at the Board, at the arguments made by the parties in addressing that issue. 

Senator ALEXANDER. May I offer a statement by the Knight Commission? About 25 years ago, the Knight Commission organized a 

group of university presidents and others, including the president 

of the University of Tennessee—and I don’t know who that was— 

but we considered very carefully all the issues of intercollegiate 

athletics. And the whole point of the recommendation of the Knight 

Commission was that presidents of the universities should step up 

and take the responsibility for the problems—and there always are 

some problems—with intercollegiate athletics. 

But this is what these presidents said, and they included some 

really terrific people—I mean, Father Hesburgh of Notre Dame, 

Bill Friday of the University of North Carolina—some of the finest 

leaders in higher education in the country. 

‘‘We reject the argument that the only realistic solution of 

the problems of intercollegiate athletics—and there always 

have been some—is to drop the student athlete concept, put 

athletes on the payroll, and reduce or even eliminate their responsibilities as students.’’ 

The Knight Commission went on to say, 

‘‘Such a scheme has nothing to do with education, the purpose for which colleges and universities exist. Scholarship athletes are already paid in the most meaningful way possible 

21 

with a free education. The idea of intercollegiate athletics is 

that the 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.’’ 

That was the Knight Commission on intercollegiate athletics 25 

years ago. I would hope very much that should you be a member 

of the National Labor Relations Board, you will take into account 

those opinions. Student athletes are not employees of a university. 

Student athletes—for example, universities are taking steps to deal 

with the various problems, which include the money that athletes 

may have to spend. Student athletes, like other students—about 

half of them if they’re low-income—are eligible for a Pell grant in 

addition to their student scholarship. 

I was a student athlete without a scholarship at Vanderbilt University, and there are enormous advantages to the privilege of 

being a student athlete. So I would hope the NLRB would reject 

what I consider to be a fairly preposterous claim that Congress, 

when it talked about employees, had in mind student athletes. And 

I would respectfully suggest the 2-year deliberations of the Knight 

Commission to you and anyone else who might be a member of the 

National Labor Relations Board. 

Mr. Chairman, I have no other comments. 

The CHAIRMAN. Thank you very much, Senator Alexander. 

Ms. Block, thank you again for your appearance and for your 

forthright answers to our questions. 

The record will remain open for 10 days. If there are additional 

questions or questions by any Senators, I ask that those be submitted by this Friday before close of business here in the Senate. 

Again, thank you, Ms. Block. We look forward to getting your 

nomination before the Senate in due order so that we can continue 

after December with a full NLRB. 

With that, the committee will stand adjourned. 

[Additional material follows.] 

22 

ADDITIONAL MATERIAL 

RESPONSE TO QUESTIONS OF SENATOR ALEXANDER, SENATOR ISAKSON, AND SENATOR

SCOTT BY SHARON BLOCK

SENATOR ALEXANDER

Question 1. Do you think NLRB decisions that are de facto invalid by the Supreme 

Court’s Noel Canning decision should be given priority over the Board’s new cases 

or over finalizing the Board’s other business, for example, the proposed representation-case procedures rule? 

Answer 1. I am aware that Chairman Pearce issued a statement following the decision affirming the Board’s commitment to resolving any cases that may have been 

impacted by Noel Canning as expeditiously as possible. If I am fortunate enough 

to be confirmed, I would share my colleagues’ commitment to resolve these cases as 

expeditiously as possible. I am not privy to the Board’s intended process, so I am 

unable to comment on the specifics. As a Board member, I would make efficient case 

processing a priority. 

Question 2a. Do you think the Board should notify the parties to cases affected 

by Noel Canning that the Board’s decisions have been invalidated? If yes, how 

would you propose doing so? If no, please explain why. 

Answer 2a. I believe that the Agency should be transparent in its operations. I 

am not privy to the Board’s intended process for dealing with cases that may have 

been impacted by the Supreme Court’s Noel Canning decision. However, following 

the Supreme Court decision in New Process Steel, I am aware that the Agency included a list of cases impacted by the decision on its public website. I believe that 

promoted transparency. If I am fortunate enough to be confirmed to the Board, I 

look forward to discussing with my colleagues additional steps that could be taken 

to promote transparency. 

Question 2b. Do you think those parties should have a time limit on how long they 

have to ask the Board to reconsider their case? Please explain your answer. 

Answer 2b. I am not privy to the Board’s intended process. I do believe that some 

reasonable time limit may be appropriate to ensure that parties involved are assured a final resolution of their dispute. 

Question 3. Do you think the Board should inform the public, and in particular 

those parties impacted, about how it plans to process the cases invalidated by Noel 

Canning? If yes, how would you propose processing the cases? If no, please explain 

why. 

Answer 3. Again, I believe that the Agency should be transparent in its operations. I am not privy to the Board’s intended process for dealing with cases that 

may have been impacted by the Supreme Court’s Noel Canning decision. If I were 

fortunate enough to be confirmed to the Board, I would look forward to discussing 

with my colleagues an efficient, effective, and transparent process. 

Question 4. Do you think the Board should allow new briefs to be filed in the invalidated cases that are going to be reconsidered? Please explain why or why not. 

Answer 4. I am not privy to the Board’s intended process for dealing with cases 

that may have been impacted by the Supreme Court’s Noel Canning decision. However, I am aware that following the Supreme Court’s decision in New Process Steel, the Board did not permit the filing of new briefs as to the matters that had been 

fully briefed during original consideration, but did permit parties to bring to the 

Board’s attention any relevant new authority that issued since the time of the initial 

decision. I believe that was an appropriate process. 

Question 5. In how many of the 436 decisions that are de facto invalid by the Supreme Court’s Noel Canning ruling did you participate? 

Answer 5. I did not keep a log of cases in which I participated, nor do I have the 

list of 436 decisions to which you refer; therefore, I do not know the number of those 

cases in which I participated. I would be happy to work with the National Labor 

Relations Board’s Congressional Affairs staff to ensure that you receive this information. 

Question 6a. The Board has been criticized for overturning longstanding precedent. What factors would you consider when deciding to follow or overturn a Board 

precedent? 

Answer 6a. I have a great deal of respect for the principle of stare decisis. Stability and certainty in the law are important values. But there are times when staVerDate Nov 24 2008 14:01 Mar 27, 2017 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6621 S:\DOCS\24455.TXT DENISE
23 

bility and certainty are better served by re-examining precedent. I believe that reversal of precedent should remain rare and should always reflect careful consideration. I believe that it is important to consider whether existing Board law lacks 

a clear and coherent rationale and/or where the Board has been directed by a Federal court to reconsider its approach to a particular legal issue. 

Question 6b. Do you believe that overturning the Board’s longstanding precedent 

creates uncertainty and confusion for employers and employees? 

Answer 6b. I believe that predictability is an important value under the law and 

that reversals of precedent should remain rare and reflect careful consideration. Reversals of precedent must be understood in the context of the Supreme Court’s observation that ‘‘[t]o hold that the Board’s earlier decisions froze the development . . . 

of the national labor law would misconceive the nature of administrative decisionmaking,’’ which the Court described as ‘‘the constant process of trial and error.’’ 

NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265–66 (1975). 

Question 6c. Do you agree that the purpose of the National Labor Relations Act 

is to create stability in labor relations? 

Answer 6c. I believe that the purpose of the National Labor Relations Act, as declared in the preamble to the Act, is to ‘‘eliminate the causes of certain substantial 

obstruction to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of 

collective bargaining . . . ’’ 

Question 6d. How does overturning Board precedent help create such stability? 

Answer 6d. Again, I believe stability and certainty in the law are important values. But, there are times when stability and certainty are better served by re-examining precedent. I believe that reversal of precedent should remain rare and should 

always reflect careful consideration. I believe that it is important to consider whether existing Board law lacks a clear and coherent rationale and/or where the Board 

has been directed by a Federal court to reconsider its approach to a particular legal 

issue. 

Question 7a. In your opinion, how much weight and deference should be given to 

congressional intent? Should the Board members consider current policy concerns, 

or should they solely apply the law as Congress intended when deciding cases? 

Answer 7a. Board members should apply existing law, as articulated by Congress, 

impartially to all parties. 

Question 7b. When you previously served on the Board, did you weigh policy concerns when deciding cases, or did you strictly apply the law as Congress intended? 

Answer 7b. I took my role as a neutral adjudicator of the law very seriously. I 

strove to understand all sides of a case, to consider carefully the arguments of every 

party regarding how the law applies, and to render a fair decision based solely on 

the record evidence and the applicable legal principles. 

Question 8. At what point do you believe that a franchisor should be responsible 

for unfair labor practices by a franchisee? 

Answer 8. Cases involving joint employment are very fact-specific. This is a complicated area of the law and I would approach it with an open mind, and with a 

focus on the specific facts of the particular case. Because this is an issue that could 

come before the Board in a future case, it would not be appropriate for me to address this issue in substance. 

Question 9. If a franchisor is found to be a joint employer with its franchisees, 

do you think a union could demand to have collective bargaining agreements with 

both the franchisee owner, and the corporate franchisor? 

Answer 9. Again, if I am fortunate enough to be confirmed, this issue could come 

before the Board, so it would not be appropriate for me to address it in substance. 

Question 10. If the joint employer doctrine under the National Labor Relations Act 

is going to be changed, do you think it would result in more certainty for interested 

parties if Congress changed it or if the NLRB changed it? 

Answer 10. Because I cannot know the feelings of interested parties, I cannot 

speculate as to which course of action may result in more certainty for interested 

parties. 

Question 11a. In a book chapter you authored entitled, ‘‘Perspectives from a New 

Member of the NLRB,’’ you opined, ‘‘the web of rights that we have afforded workers 

in the country is not without serious flaws.’’ What are the rights contained in the 

24 

‘‘web’’ you describe? And what specifically do you believe are the serious flaws in 

that ‘‘web?’’ 

Answer 11a. I was referring to the various labor and employment laws Congress 

has enacted governing our Nation’s workplaces. As discussed in the chapter, I believe that the lack of protection against workplace discrimination for members of the 

LGBT community is a serious flaw. I also mentioned that many of our worker protection statutes are outdated and outmoded. 

Question 11b. In the same chapter you asserted, ‘‘we should not expect Congress 

to change or clarify the legal landscape for workers or employers any time too soon.’’ 

If you do not expect Congress to change the legal landscape, do you believe that is 

an appropriate role for the NLRB? 

Answer 11b. I understand that as a Board member I would be charged with enforcing the law as it currently exists and not enacting changes that can only be accomplished by legislation. 

Question 12. Four Federal circuit courts have rejected the NLRB’s decision in D.R. 

Horton, which held that class action waivers in an arbitration agreement violate the 

National Labor Relations Act. In the book chapter referenced above, you wrote, ‘‘[i]t 

remains to be seen how D.R. Horton will fare in the courts . . ..’’ Now that it is welldocumented that D.R. Horton fared poorly in the courts, do you believe it is appropriate for the Board to continue to apply it, especially if the Board does not plan 

to file cert with the Supreme Court? 

Answer 12. Because this is an issue that could likely come before the Board in 

a future case, it would not be appropriate for me to address this issue. 

Question 13. In the book chapter referenced above, you state, ‘‘misclassification is 

one of the most important labor and employment issues of our time,’’ the ‘‘Board 

. . . has a role to play’’ in resolving this issue and ‘‘the debate engaged [about independent contractor status] in St. Joseph is an important one for the current Board 

to continue.’’ If confirmed, do you support the Board changing the factors it considers to determine employee versus independent contractor status? 

Answer 13. Because this is an issue that could likely come before the Board in 

a future case, it would not be appropriate for me to address this issue in substance. 

Question 14. In the book chapter referenced above, you appear to disagree with 

the Supreme Court’s opinion in Hoffman Plastic Compounds, which, as you stated, 

‘‘held that the Board had no authority to award backpay to an undocumented worker who—violating immigration law—had presented fraudulent work-authorization 

documents to get his job.’’ You argue this decision, from a policy perspective, has 

‘‘serious negative consequences.’’ If confirmed, will you abide by the Supreme Court’s 

precedent in Hoffman or look for ways to distinguish it from other cases before the 

Board that involve awarding undocumented workers backpay? 

Answer 14. I have a great deal of respect for the judiciary and understand that 

the Supreme Court’s decision in Hoffman Plastic Compounds is the law of the land. 

Question 15. During your confirmation hearing, you indicated there was conflicting reasoning in the Federal courts about whether your recess appointment was 

unconstitutional. Please name what Federal court found President Obama’s January 

4, 2013, recess appointment of you to the NLRB constitutional. 

Answer 15. The D.C. Circuit itself acknowledged in Noel Canning that its decision 

was at odds with the views expressed by the Second, Ninth, and Eleventh Circuit 

courts. I was referring to the reasoning employed by the courts, which was in conflict, not the ultimate holding of the courts. 

Question 16. The NLRB Office of Inspector General and congressional investigations have uncovered inappropriate ex parte communications between the Board and 

the Office of General Counsel in recent years. In your time on the Board, please 

describe how you took care to follow the Board’s ex parte rules and how you plan 

to do so moving forward, especially in light of the fact that your former colleague 

on the Board, Richard Griffin, is now the General Counsel. 

Answer 16. I understand that the NLRB has a unique structure. Agency personnel serve as both prosecutor (the Office of the General Counsel) and adjudicator 

(the Board and the Division of Judges) of unfair labor practice cases. As a result, 

due process requires that there be a wall of separation between both sides of the 

Agency to ensure the separate and independent nature of these functions. I understand that the wall is intended to ensure that Agency employees on the General 

Counsel’s staff who play a role in the investigation and prosecution of unfair labor 

practice cases do not discuss confidential case-related information with employees 

25 

of the Board who are involved in the adjudicatory function. With respect to cases 

that are pending before the Board, this requirement is codified in Sections 102.126– 

102.133 of the Board’s Rules and Regulations (Subpart P—Ex Parte Communications), which prohibit all parties to a case from engaging in ex parte communications. 

I assure you that I fully understand the Agency’s rules regarding ex parte communications and did make every effort to adhere to them during my prior service and 

would make every effort to adhere to the Agency’s policies in all of my communications, if I am fortunate enough to be confirmed. 

Question 17. If confirmed, will you commit to cooperating with congressional oversight of the NLRB, including document requests, and to work with the NLRB Office 

of Inspector General and Government Accountability Office in any studies/investigations that they may undertake? 

Answer 17. If confirmed, I would make every effort to cooperate with congressional oversight of the NLRB and to work with the NLRB Office of Inspector General and Government Accountability Office in any studies/investigations they may 

undertake. 

Question 18. If confirmed and you are asked to personally meet with Members of 

Congress or their staff, are you willing to do so? 

Answer 18. If confirmed, I would make every effort to, when requested, personally 

meet with Members of Congress or their staff. 

Question 19. Please describe in detail your role in preparing or approving responses to congressional inquiries during your time serving as Senior Counselor to 

Secretary of Labor, Thomas Perez. Have you ever advised against providing Congress with the information they requested? If yes, please describe the background 

of such requests and your reasoning for advising the Secretary to withhold the requested information. 

Answer 19. The Department of Labor’s Office of the Executive Secretariat, in coordination with the Office of Congressional and Intergovernmental Affairs, manages 

the process of responding to congressional inquiries. As a part of the standard Departmental clearance process, staff from a number of agencies—including the Office 

of the Secretary—are afforded the opportunity to review correspondence. The clearance process is designed to ensure that information provided to Members of Congress is both accurate and responsive. 

SENATOR ISAKSON

Question 1. Recently, the NLRB’s General Counsel issued an opinion that 

McDonalds’s Corporation is responsible for the employees of their independently operated franchisees. This opinion changes decades of legal precedence harming the 

very essence of the American franchise business model—that is the independence 

of the franchisees to run their own business. I recently heard from my constituent, 

who owns 23 franchised restaurants. He was petrified of what a joint employer ruling would do to the business he has grown from one store to 23 stores. I have two 

questions: Do you think the General Counsel should be ‘‘making’’ law on his own 

prior to the Board decision on the Browning Ferris case? Do you understand the effects a joint employer relationship will have on independent franchisees—the loss 

of their business and any of their established equity? I think it is important to hear 

from you on what you believe a joint employer relationship is. 

Answer 1. Because this is an issue that could likely come before the Board in a 

future case, it would not be appropriate for me to address this issue in substance. 

I can say that this is a complicated area of the law and I would approach it with 

an open mind. 

Question 2. In the Specialty Healthcare decision, the NLRB reversed the longstanding precedent for establishing a traditional bargaining unit. This board decision now allows for labor organizations to cherry pick certain employees within a 

workplace in order to gain access to those places of work. This can obviously create 

conflict within the workplace amongst employees, impossible management hurdles 

for employers who could potentially have to deal with multiple collective bargaining 

contracts within the same workplace, and ultimately affect American consumers 

who benefit from the products and services from so many of these workplaces. Do 

you support this new ‘‘same work, same facility’’ test despite it not having been developed through any transparent rulemaking process? 

Answer 2. Because this is an issue that could likely come before the Board in a 

future case, it would not be appropriate for me to address this issue in substance. 

26 

If I am fortunate enough to be confirmed to the Board, I will examine these issues 

with an open mind and carefully consider the facts of the case, the viewpoints of 

my colleagues, career Board staff and the parties, and apply the law in a fair and 

honest manner. 

SENATOR SCOTT

Question 1a. The Board under the current Administration has embarked on truly 

unprecedented rulemakings and issued a multitude of decisions that seem to be solutions in search of a problem. In your opinion, has the confluence of the decline 

of private-sector unionization to 6.7 percent and the defeat of card check prompted 

the NLRB to serve as the vehicle for mitigating these losses? 

Answer 1a. No. 

Question 1b. Is there an expectation on behalf of union organizations that the 

Board, particularly the Democrat members, should act in this way? 

Answer 1b. If I am fortunate enough to be confirmed to the Board, I can assure 

you that I will uphold my oath to administer the National Labor Relations Act in 

a fair and impartial manner, consistent with the requirements of the Act. I cannot 

speak to the expectations of others. 

Question 2a. Many of the decisions issued during your tenure on the Board noticeably tilt the playing field toward organized labor. Some of these include WKYC–TV, 

Gannet Co., Inc. (08–CA–039190); Alan Ritchey, Inc. (32–CA–018149); Hispanics 

United of Buffalo (03–CA–027872); Karl Knauz BMW (13–CA–046452); and 

Fresenius USA Manufacturing (02–CA–039518). 

In the Knauz case, the Board found a commonsense courtesy rule to be unlawful. 

While the decision in this case does not ban courtesy rules, it clearly has far-reaching impacts. Do you stand by your decision in this case? 

Answer 2a. The decision in the Karl Knauz case speaks for itself. The Board found 

a handbook statement encouraging ‘‘courteous, polite, and friendly’’ behavior to be 

lawful. It found a statement that prohibited ‘‘disrespectful’’ conduct and ‘‘language 

which injures the image or reputation’’ of the employer to be unlawful because employees could reasonably think that those prohibitions would cover activity protected 

by the National Labor Relations Act. 

Question 2b. Please explain how an employee could perceive this courtesy rule as 

infringing on their rights. 

Answer 2b. Again, the Karl Knauz decision speaks for itself. The Board found a 

handbook statement encouraging ‘‘courteous, polite, and friendly’’ behavior to be 

lawful. It found a statement that prohibited ‘‘disrespectful’’ conduct and ‘‘language 

which injures the image or reputation’’ of the employer to be unlawful because employees could reasonably think that those prohibitions would cover activity protected 

by the National Labor Relations Act. 

Question 3a. The Board’s decision in Specialty Healthcare, along with subsequent 

cases that upend board precedent to allow the gerrymandering of bargaining units, 

will have major consequences on employees and employers. 

Why did the Board expand the Specialty Healthcare decision to industries beyond 

non-acute health facilities? 

Answer 3a. I was not on the Board when it issued its decision in Specialty 

Healthcare. I was not privy to the Board’s reasoning other than what is in the decision itself. 

Question 3b. Commonsense says that the creation of ‘‘micro-unions’’ could lead to 

perpetual contract negotiations and strike threats as well as acrimony amongst employees. How is this good for our economy and labor relations? 

Answer 3b. The Board’s obligation under Section 9 of the Act is to determine 

whether a petitioned-for unit is an appropriate unit. If I am fortunate enough to 

be confirmed, I would do my best to carry out this obligation in a fair and unbiased 

manner. 

Question 3c. Do you agree that micro-unions could restrict the cross-training of 

employees and thus career advancement? 

Answer 3c. The Board’s obligation under Section 9 of the Act is to determine 

whether a petitioned-for unit is an appropriate unit. If I am fortunate enough to 

be confirmed, I would do my best to carry out this obligation in a fair and unbiased 

manner. 

27 

Question 3d. How many decades of precedent were overturned in Specialty 

Healthcare? 

Answer 3d. Again, I was not on the Board when it issued its decision in Specialty 

Healthcare. In the Specialty Healthcare decision, the Board states that it ‘‘return[ed] 

to the application of our traditional community of interest approach in this [nursing 

home] context’’ and overruled Park Manor Care Center, a case decided in 1991. 

Question 3e. Would you deem as few as two employees as an appropriate bargaining unit in any circumstance? Please provide a yes or no response. 

Answer 3e. Yes, if a petitioned-for unit of two employees otherwise met the test 

for an appropriate bargaining unit, I would find such a unit appropriate, as the 

Board has throughout its history. See, e.g., Tennessee Valley Broadcasting Company, 73 NLRB 1509, 1510 (1947) (units of all regular staff announcers and all radio technicians—each composed of two employees—constitute two separate appropriate 

units). 

Question 4a. In 2012, you said that your driving motivations for being a labor lawyer would inform your thinking about cases and issues before the Board. Do you 

believe that your past work experiences and motivations will hamper your ability 

to be an unbiased arbiter should you return to the Board? 

Answer 4a. No. 

Question 4b. Do you believe that your previous record at the Board reflects that 

of a neutral arbiter? 

Answer 4b. Yes. 

Question 4c. U.S. District Judge Arthur Schwab recently remarked that the overly 

broad scope of requests from the Board in NLRB v. UPMC ‘‘arguably moves the 

NLRB from its investigatory function and enforcer of Federal labor law, to serving 

as the litigation arm of the Union, and a co-participant in the ongoing organization 

effort of the Union.’’ In light of this assertion and similar findings by other courts, 

do you agree that the Board must act in a more impartial manner to avoid further 

damage to its reputation? 

Answer 4c. If I am fortunate enough to be confirmed, I would take my role as 

a neutral arbiter very seriously and would conduct myself in a fair and impartial 

manner. I believe that the current Board members share this commitment. 

Question 5a. For 30 years, under its joint-employer standard, the NLRB has taken 

the position that one business cannot be held liable for the unfair labor practices 

of another business unless that business had direct control over the employees in 

question. However, the NLRB is attempting to alter this long-standing standard, 

which will create immense uncertainty in the business community and further tilt 

the playing field in favor of big labor and their organizing efforts. 

In light of the General Counsel’s recent decision to ignore this established standard and authorize McDonald’s USA, LLC to be named as a joint employer, how do 

you think this classification of a franchisor as a joint employer will affect the economy and the general business environment? 

Answer 5a. Because this is an issue that could likely come before the Board in 

a future case, it would not be appropriate for me to address this issue in substance. 

I can say that this is a complicated area of the law and I would approach it with 

an open mind. 

Question 5b. Do you believe that this classification would be isolated solely to 

McDonald’s, or would it impact a variety of businesses that use similar models, including real estate agencies, insurance companies, and car dealerships? 

Answer 5b. Again, this is an issue that could likely come before the Board in a 

future case, so it would not be appropriate for me to address this issue in substance. 

Question 5c. In your opinion, what impact would this joint employer classification 

have on union organizing efforts in industries like the fast food sector? 

Answer 5c. Again, this is an issue that could likely come before the Board in a 

future case, so it would not be appropriate for me to address this issue in substance. 

Question 5d. In August, the California Supreme Court ruled that Domino’s Pizza 

LLC was not liable for alleged sexual harassment at one of its franchises because 

the company is not sufficiently involved in the hiring, firing, and supervision of employees to warrant liability. Do you think this decision and others will give the General Counsel’s office pause? 

Answer 5d. I am not familiar with that decision. 

28 

Question 5e. If confirmed and presented with this issue before the Board, would 

you lend credence to the courts’ opinions on the joint employer standard? 

Answer 5e. If confirmed, I will take my role as neutral arbiter very seriously. I 

will work to understand all sides of a case, to consider carefully the arguments of 

every party, and to render a fair decision based solely on the record evidence and 

the applicable legal principles. 

Question 5f. Knowing that this issue is a priority of Administrator Weil’s, do you 

have any preconceived notions on the joint employer issue due to your work at the 

Department of Labor? 

Answer 5f. I do not have preconceived notions with regards to the joint employment issue. Again, if I am fortunate enough to be confirmed, I will approach each 

case before me with an open mind. 

Question 5g. Have you assisted the Department in developing priorities or policies 

pertaining to this issue? 

Answer 5g. Staff from the Office of the Secretary is afforded the opportunity to 

review agency priorities and policies on a range of issues. I was one of many individuals at the Department of Labor who reviewed the Wage and Hour Division Administrator’s Interpretation (2014-2) and fact sheet to help potential joint employers of 

home care workers determine their obligations under the Fair Labor Standards Act. 

[Whereupon, at 11:15 a.m., the hearing was adjourned.] 

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