```

[Senate Hearing 113-808]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 113-808

           HEARING ON NATIONAL LABOR RELATIONS BOARD NOMINEES

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

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                                   ON

 EXAMINING THE NOMINATIONS OF KENT YOSHIHO HIROZAWA, OF NEW YORK, AND 
 NANCY JEAN SCHIFFER, OF MARYLAND, BOTH TO BE A MEMBER OF THE NATIONAL 
                         LABOR RELATIONS BOARD

                               __________

                             JULY 23, 2013

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions
                                
                                
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]                                

      Available via the World Wide Web: http://www.gpo.gov/fdsys/
      
      
                  U.S. GOVERNMENT PUBLISHING OFFICE
20-524 PDF                 WASHINGTON : 2016                  

________________________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Publishing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center,
U.S. Government Publishing Office. Phone 202-512-1800, or 866-512-1800 (toll-free).
E-mail, [email protected].  

          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
                                       

                    Pamela J. Smith, Staff Director

        Lauren McFerran, Deputy Staff Director and Chief Counsel

               David P. Cleary, Republican Staff Director

                                  (ii)

                                CONTENTS

                               __________

                               STATEMENTS

                         TUESDAY, JULY 23, 2013

                                                                   Page

                           Committee Members

Harkin, Hon. Tom, Chairman, Committee on Health, Education, 
  Labor, and Pensions, opening statement.........................     1
Alexander, Hon. Lamar, a U.S. Senator from the State of 
  Tennessee, opening statement...................................     3
Warren, Hon. Elizabeth, a U.S. Senator from the State of 
  Massachusetts..................................................    15
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia...    16
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin..    18
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    20
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of 
  Pennsylvania...................................................    22
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina.    25
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....    27

                               Witnesses

Hirozawa, Kent Yoshiho, B.A., J.D., Hastings-on-Hudson, NY.......     5
    Prepared statement...........................................     7
Schiffer, Nancy Jean, B.A., J.D., Annapolis, MD..................     8
    Prepared statement...........................................    10

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Response by Kent Yoshiho Hirozawa to questions of:
        Senator Alexander........................................    32
        Senator Enzi.............................................    34
        Senator Burr.............................................    35
        Senator Isakson..........................................    36
        Senator Hatch............................................    37
        Senator Scott............................................    37
    Response by Nancy Jean Schiffer to questions of:
        Senator Alexander........................................    39
        Senator Enzi.............................................    41
        Senator Burr.............................................    41
        Senator Isakson..........................................    43
        Senator Hatch............................................    44
        Senator Scott............................................    47

                                 (iii)

  

 
           HEARING ON NATIONAL LABOR RELATIONS BOARD NOMINEES

                              ----------                              

                         TUESDAY, JULY 23, 2013

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:06 a.m., in 
room SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
chairman of the committee, presiding.
    Present: Senators Harkin, Casey, Franken, Bennet, Baldwin, 
Murphy, Warren, Alexander, Enzi, Isakson, Hatch, and Scott.

                  Opening Statement of Senator Harkin

    The Chairman. The Committee on Health, Education, Labor, 
and Pensions will please come to order.
    Today's hearing is the result of a bipartisan agreement 
that was reached to allow for a fully confirmed National Labor 
Relations Board for the first time in over a decade. A fully 
confirmed, fully functional Board will be a huge step forward 
for workers and employers in our country. Indeed, I hope that 
this agreement brings a new beginning for the Board so that we 
can ratchet down the political rhetoric that seems to surround 
this agency and instead let the dedicated public servants who 
work there do their jobs.
    The NLRB is an agency that is absolutely critical to our 
country and to our economy and 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 to bargain for a better life. For both union and non-
union workers alike, the Act provides essential protections and 
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 
National Labor Relations Act. The Board is the only place 
workers can go if they've been treated unfairly and denied the 
basic protections that the law provides.
    Thus, the Board plays a vital role in vindicating workers' 
rights. In the past 10 years--I say 10 years, and that 
transcends both Republican and Democratic administrations--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 and pay 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.
    Confirming these nominees is vitally important because in 
the absence of Senate action, the Board will lose a quorum in 
August and will be effectively forced to shut down. That's more 
than an administrative headache. It's a tragedy that denies 
justice to working men and women across the country.
    It affects workers like Dave Preast, a union coal miner in 
West Virginia who was refused a job when a new company 
purchased the mine where he had previously been working. The 
NLRB, with panels including both Democrats and Republicans, has 
ruled twice that the new company's refusal to hire Dave and 84 
of his fellow union supporters was illegal and violated their 
rights under the National Labor Relations Act.
    But Dave and his colleagues have been waiting over 8 years 
for justice. Three of his co-workers, sadly, have passed away 
during this period. Dave has a 16-year-old son who has needed 
several surgeries for a life-threatening heart condition. His 
son's healthcare costs would have bankrupted the family if the 
surgeries hadn't been covered through the State's CHIP program 
and Medicaid.
    Dave is currently doing odd jobs to make ends meet and take 
care of his family. Keep in mind, twice the Board said that he 
had been unjustly denied a job. However, without the 
enforcement of his reinstatement remedy from the Board, he'll 
be forced to live on $500 a month when he retires. Like many 
other miners, Dave just wants to go back to work. He has 
attempted to find other mining jobs, but when he interviews and 
the company finds out how much union time he had accumulated, 
that pretty much ends his chance of a job.
    And let's be clear about why Dave and the other coal miners 
were not hired. They were not hired because of their previous 
union activities. That's against the law. It's not fair, it's 
not right, and it's illegal. That's why we need a strong NLRB.
    Today's nominees will help us restore the Board to its full 
strength and capacity. They both come from diverse backgrounds 
and are deeply steeped in labor and employment law. Their rich 
experiences will serve them well at the Board, and they deserve 
to be confirmed with strong bipartisan support.
    I look forward to hearing their testimony today and to 
moving them expeditiously through this committee. And I might 
say that under our agreement, the committee will meet in 
executive session tomorrow to vote on these nominees.
    With that, I'll turn to our Ranking Member, Senator 
Alexander.

                 Opening Statement of Senator Alexander

    Senator Alexander. Thanks, Mr. Chairman, and welcome to the 
two nominees.
    Thank you for being here, Mr. Hirozawa and Ms. Schiffer.
    The hearing is about nominees whose job it is to be judges, 
not advocates. That's what the Board members of the National 
Labor Relations Board are supposed to do. The National Labor 
Relations Act talks about the job of the Board being to 
prescribe the legitimate rights of both employees and employers 
and their relations affecting commerce, which suggests a high 
level of impartiality.
    Former Senator Baker used to tell the story of the mountain 
judge in Tennessee who, when the lawyers appeared before him 
one morning, said, ``Boys, just give me a little bit on the 
law. I had a phone call last night, and I pretty well know the 
facts.'' That was the kind of impartiality they had in that 
county in Tennessee at the time.
    That's what we hope we don't have at the National Labor 
Relations Board. We want you and the other three nominees, if 
you're confirmed--we want people to be able to approach you in 
a way that causes them actually to know and believe that you 
haven't decided the case before they come, and I know you know 
that. But I think that's what, for me, this hearing is about. I 
want to make sure the Board's mission is carried out without 
any private agenda, such as increasing unionization rates 
without regard for employees' freedom to choose whether or not 
to form a union.
    We've got plenty of information about you. We have the 
committee application, which all Senators received yesterday. 
That includes both public and private financial information. 
Last week, we distributed to all Senators biographical and 
other information about your writings. Today, we have the 
opportunity to ask questions. Today, we also received the 
government's ethics information, so all Senators have that.
    We will have a chance not only to discuss today, but to 
vote tomorrow, and then I'm sure there will be written 
questions that will come to you from Senators. I would hope 
that you'll be mindful of the fact that we hope to proceed to 
an up or down vote sometime next week. We want to make sure 
that all Senators have a chance to see what the result of this 
hearing is, what the result of the markup is, and what your 
responses are to any questions that might come. So the more 
rapidly you can get those in, the better.
    If you're approved tomorrow, I don't expect there would be 
a vote in the Senate, in any event, before next week. So 
Senators would have that time to make their decisions.
    Senator Harkin referred to the fact that this proceeding is 
a little unusual because it comes as a result of an agreement. 
It's an agreement about the President's ability to use recess 
appointments. We now have three Federal courts that have found 
that the President violated the Constitution by making recess 
appointments to the NLRB when the Senate wasn't in recess.
    One was the Noel Canning case in January 2013. One, more 
recently, was a Fourth Circuit case just last week, on 
basically the same issue, and then a related case in May of 
this year in the Third Circuit Court of Appeals. So that's 3 to 
0.
    I don't intend here to re-litigate the whole issue. We've 
had plenty of debates about it both here in the committee and 
on the floor. But it's a very important issue. Under our 
constitutional separation of powers and checks and balances, 
the President has the right to nominate, and the Senate has the 
power to advise and consent. The founders did not want an 
imperial presidency, and they created a check on the 
presidency, and that's one of the most important and certainly 
the best known check that we have.
    I would think after these three Federal courts' decisions 
and after the Senate's rejection of the nomination of two 
nominees--or the President's withdrawal, I should say, at the 
request of the Senate because of the recess appointment 
question, I think it's fair to say that any president in the 
future would not use his or her recess appointment power at a 
time when the Senate was not in recess, and that the Senate, 
not the President, would decide when it was in recess.
    Hopefully, as a result of this discussion, that issue is 
settled. And I think that's an important issue.
    The actions the unconstitutionally appointed NLRB members 
have taken have left quite a mess for citizens who rely on this 
agency. There were more than 1,000 cases decided when there was 
not a valid quorum according to the law as decided by those 
three appellate courts. That leaves thousands of employees, 
unions, and employers in limbo wondering whether they should 
comply with a particular decision.
    By moving ahead on these nominations, hopefully, we will 
have a vote on the Senate floor shortly. And that may result in 
an ability to put a stop to that uncertainty and a misuse of 
taxpayer resources.
    The most important characteristic, as I mentioned, and what 
I will be looking for in this discussion is impartiality. In 
recent years, I'm afraid the NLRB has been moving away from 
that level playing field or that impartiality. The number of 
policy changes and reversals that have come out of the NLRB 
under this administration have caused, in my judgment, great 
confusion. One labor law professor at a major university 
recently said that she can't even use the most recent textbook. 
She has to resort to handing out NLRB decisions instead. 
They're coming out so rapidly.
    The NLRB has ventured into new territory with two efforts 
at rulemaking, both of which have been stalled by the Federal 
courts. They've gone into the legal obligation of employers to 
withhold dues from employees' paychecks even when there is no 
valid collective bargaining agreement in place. The validity of 
arbitration provisions in employment contracts, the legality of 
numerous well-
intentioned employee handbook provisions, the rules governing 
employee discipline when there is no valid collective 
bargaining agreement in place--these are things the NLRB has 
sought to change, as well as other precedents and rules.
    The intent of all of this seems to me to tilt the playing 
field in favor of organized labor, which is not the directive 
of the statute, and which is not my definition of impartiality. 
So fairness and impartiality is what I think we should all be 
looking for in any NLRB nominee.
    I look forward to today's questioning, and I thank you both 
for your willingness to serve.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Alexander.
    We'll proceed to our testimonies. Both of your written 
testimonies will be made a part of the record in their 
entirety. I read them over last evening. They're excellent 
statements. We'll start with Mr. Hirozawa and then Ms. 
Schiffer. We'll ask you to proceed. Take 5 to 7 minutes and 
then we'll get into our questions.
    Mr. Kent Hirozawa has served as Chief Counsel to the 
National Labor Relations Board Chairman Mark Pearce since 2010. 
Before joining the NLRB, Mr. Hirozawa was a partner in the New 
York law firm, Gladstein, Reif and Meginniss, where he advised 
clients on a variety of labor and employment law matters. Mr. 
Hirozawa also served as a field attorney for the NLRB from 1984 
to 1986. He received his B.A. from Yale University and a Juris 
Doctor from New York University School of Law.
    Nancy Schiffer was associate general counsel to the AFL-CIO 
from 2000 to 2012. Prior to that, she was deputy general 
counsel to the United Auto Workers. Earlier in her career, Ms. 
Schiffer was a staff attorney in the Detroit Regional Office of 
the NLRB. Ms. Schiffer received her B.A. from Michigan State 
University and her Juris Doctorate from the University of 
Michigan Law School.
    My congratulations to both of you. You have sterling 
records and careers, and we, I think, are just fortunate to 
have you willing to serve on the NLRB.
    We'll start with you, Mr. Hirozawa. Please take 5 to 7 
minutes. Next we'll go to Ms. Schiffer, and then we'll open it 
up for questions.
    Welcome.

  STATEMENT OF KENT YOSHIHO HIROZAWA, B.A., J.D., HASTINGS-ON-
                           HUDSON, NY

    Mr. Hirozawa. Chairman Harkin, Ranking Member Alexander, 
and members of the committee, thank you for the opportunity to 
appear before you today. I am honored and humbled to be 
considered for a position as a member of the National Labor 
Relations Board. This is something that I could not have 
imagined as a young field attorney with the Board nearly 30 
years ago.
    It has also been pointed out to me that if I am confirmed, 
I would be the first Asian-American member of the Board. That, 
of course, would be a great honor. And it is a tremendous honor 
to be introduced by Chairman Harkin, one of the greatest 
champions of the American worker in the history of the U.S. 
Senate.
    Mr. Chairman, thank you for your kind remarks.
    If I may, I would like to start by telling you a little bit 
about where I come from. My father was born and raised on a 
sugar cane plantation on the Island of Kauai in what was then 
the Territory of Hawaii. He and most of his brothers enlisted 
in the U.S. Army during World War II and went to school on the 
GI bill.
    My mother grew up on the other side of the tracks. Her 
father and grandfather were surgeons who came to Hawaii from 
Japan and helped to found the Japanese Charity Hospital in 
Honolulu. My parents met at the University of Hawaii, got 
married, and went to grad school at Minnesota and Wisconsin. My 
father then took a job as a research chemist with the Wyandotte 
Chemical Company in Wyandotte, MI. He had a long and fulfilling 
career there with many scientific papers and hundreds of 
patents to his credit.
    One of the distinct memories I have of my father's time 
with the company, however, has nothing to do with science. 
Every once in a long while, he would pack a suitcase with 
enough clothes for a couple of weeks and take it to work. The 
reason was that there might be a strike that night. As a 
salaried employee, he would be responsible for helping to keep 
the plants running for as long as the strike lasted.
    Naturally, this was very interesting to us kids. But he did 
not imbue it with any drama. It was just part of the job.
    My mother also had a long and fulfilling career as a 
teacher and beloved member of the community at the Roeper 
School in Bloomfield Hills, MI. They are both retired now and 
are unable to be here today, but it is because of their 
examples of decency and generosity, and their respect for the 
values of hard work and playing by the rules that they passed 
on to their children, that I have been able to achieve what I 
have. So thanks, Mom and Dad.
    I was born in Wyandotte and grew up in southeastern 
Michigan. I went away to college at Yale and later to law 
school at NYU. At NYU, in addition to getting a terrific legal 
education, I met Lynn Kelly, a lovely young woman from 
Minnesota. We have been married for over 25 years, and she is 
here today with our two wonderful children, Nora and Miles.
    After a judicial clerkship, I started my career as a field 
attorney with the Board's Manhattan regional office. After a 
few years, I left to go into private practice, but not before 
gaining a deep appreciation for the importance of the agency's 
work, and a deep respect for the quality and dedication of the 
agency's employees.
    After over 20 years as a partner with a New York City labor 
and employment law firm, I decided to return to the agency when 
Mark Pearce asked me to serve as his chief counsel. The 3-years 
that I have spent at headquarters have been a tremendous 
learning experience and have given me even deeper appreciation 
for the staff's talents, professionalism, and commitment to 
fairness and to the goals of the National Labor Relations Act.
    If I am given the opportunity to serve as a Board member, I 
think that my decades of practice as a labor lawyer, both 
within and before the agency, will serve me well. And I think I 
would also be helped by the perspectives gained from my 20 
years as a co-owner of a small business. With my partners, I 
had to deal with the challenges of making payroll, paying the 
rent, providing health insurance for our employees, and staying 
competitive in our market. I have had to discharge employees, 
and I know that it is always difficult and never taken lightly.
    I believe that these experiences will help me to see all 
sides of the workplace disputes that come before the Board. 
Back when I was a Board agent in Region 2, I once heard another 
employee described as ``pro-Act,'' not pro-union or pro-
management, but pro-Act, dedicated solely to advancing the 
policies and purposes of the National Labor Relations Act 
without regard to the identities or alignments of the parties.
    That has always struck me as an apt term of praise for an 
employee of the Board, and that is what I will aspire to if I 
am confirmed as a member of the Board. I pledge to dedicate 
myself to the fair and even-handed enforcement of the commands 
of the Act, consistent with the Act's purpose of maintaining 
industrial peace.
    Thank you for the opportunity to appear before you today, 
and I look forward to your questions.
    [The prepared statement of Mr. Hirozawa follows:]

        Prepared Statement of Kent Yoshiho Hirozawa, B.A., J.D.

    Chairman Harkin, Ranking Member Alexander, and members of the 
committee, thank you for the opportunity to appear before you today. I 
am honored and humbled to be considered for a position as a member of 
the National Labor Relations Board. This is something that I could not 
have imagined as a young field attorney with the Board nearly 30 years 
ago. It has also been pointed out to me that if I am confirmed, I would 
be the first Asian-American member of the Board. That, of course, would 
be a great honor.
    I would like to start by telling you a little about where I come 
from. My father was born and raised on a sugar cane plantation on the 
island of Kauai, in what was then the Territory of Hawaii. His father 
had come from Japan as a contract laborer around the turn of the 
century, and his mother as a picture bride some years later. He and 
most of his brothers made it off the plantation and got through college 
and grad school as a result of World War II. They enlisted in the U.S. 
Army, came back after the war, and went to school on the GI bill.
    My mother grew up on the other side of the tracks. Her father and 
grandfather were surgeons who came to Hawaii from Japan and helped to 
found the Japanese Charity Hospital in Honolulu.
    My parents met at the University of Hawaii, got married, and went 
to grad school at Minnesota and Wisconsin. My father then took a job as 
a research chemist at the Wyandotte Chemical Company, later the BASF 
Wyandotte Corporation, in Wyandotte, MI. He had a long and fulfilling 
career there, with many scientific papers and hundreds of patents to 
his credit.
    One of the distinct memories I have of my father's time at the 
company, however, has nothing to do with science. Every once in a long 
while, he would pack a suitcase with enough clothes for a couple of 
weeks and take it to work. The reason was that there might be a strike 
that night. As a salaried employee, he would be one of those 
responsible for keeping the plants running, behind the locked gates, 
for as long as the strike lasted. Naturally, this was very interesting 
to us kids, but he did not imbue it with any drama; it was just part of 
the job.
    My mother also had a long and fulfilling career, as a teacher and 
beloved member of the community at the Roeper School in Bloomfield 
Hills, MI. They are both retired now and are unable to be here today, 
but it is because of their examples of decency and generosity, and 
their respect for the values of hard work and playing by the rules that 
they passed on to their children, that I have been able to achieve what 
I have. So thanks, Mom and Dad.
    I was born in Wyandotte and grew up in southeastern Michigan. I 
went away to college at Yale and then, after a few years in the real 
world, I went to law school at NYU. At NYU, in addition to getting a 
terrific legal education, I met a lovely young woman from Minnesota, 
Lynn Kelly. Lynn is now the executive director of the City Bar Justice 
Center, where she coordinates the pro bono programs of the New York 
City Bar Association. We have been married for over 25 years, and she 
is here today with our two wonderful children, Nora and Miles.
    After a judicial clerkship, I started my career as a labor lawyer 
as a field attorney with the Board's Manhattan regional office. After a 
few years, I left to go into private practice, but not before gaining a 
deep appreciation for the importance of the agency's work, and a deep 
respect for the quality and dedication of the agency's employees. So 
after over 20 years as a partner with a New York City labor and 
employment law firm, I decided to return to the agency when Mark Pearce 
asked me to serve as his chief counsel. The 3-years that I have spent 
at headquarters have been a tremendous learning experience and have 
given me even deeper appreciation for the staff 's talents, 
professionalism, and commitment to fairness and to the goals of the 
National Labor Relations Act.
    If I am given the opportunity to serve as a Board member, I think 
that my decades of practice as a labor lawyer, both within and before 
the agency, will serve me well. And I think I would also be helped by 
the perspectives gained from my time in the world of business and work. 
In addition to my work as a lawyer, I have worked in a chemical plant 
and a printing plant, I have cleaned offices and pumped gas, I have 
been a busboy, a bartender and an unemployment claims examiner. I was 
also, for 20 years, a co-owner of a small business. With my partners, I 
had to deal with the challenges of making payroll, paying the rent, 
providing health insurance for our employees, and staying competitive 
in our market. I was the partner responsible for associate recruitment, 
hiring, compensation and evaluation, and the main trustee of the firm's 
retirement plan. I have had to discharge employees, and I know that it 
is always difficult and never taken lightly. I believe that all of 
these experiences will help me to see all sides of the workplace 
disputes that come before the Board.
    Back when I was a Board agent in Region 2, I once heard another 
employee described as ``pro-Act.'' Not pro-union or pro-management, but 
pro-Act, dedicated solely to advancing the policies and purposes of the 
National Labor Relations Act without regard to the identities or 
alignments of the parties. That has always struck me as an apt term of 
praise for an employee of the Board. And that is what I will aspire to 
if I am confirmed as a member of the Board: I pledge to dedicate myself 
to the fair and even-handed enforcement of the commands of the Act, 
consistent with the Act's purpose of maintaining industrial peace.
    Thank you for the opportunity to appear before you today and I look 
forward to your questions.

    The Chairman. Thank you very much, Mr. Hirozawa. I knew you 
were a smart guy, but I didn't realize how smart you were to 
marry a woman from Minnesota. My wife is from Minnesota. That's 
why I say that.
    Mr. Hirozawa. Best thing I ever did.
    The Chairman. There you go. Same for me.
    Ms. Schiffer, welcome and please proceed.

         STATEMENT OF NANCY JEAN SCHIFFER, B.A., J.D., 
                         ANNAPOLIS, MD

    Ms. Schiffer. Thank you, Chairman Harkin, Ranking Member 
Alexander, and members of the committee. I am honored beyond 
words to be here before you today as a nominee to be a member 
of the National Labor Relations Board.
    First, I would like to introduce my husband, Goldwin Smith, 
who is here today and without whose support I would not be. We 
will celebrate 32 years of marriage next month. Our daughter, 
Amelia Howerton, and her husband, Grant, could not be here 
today because they both just started new jobs in California. 
And our son, Michael, I know, is here with us in spirit.
    I grew up in a small town in southwestern Michigan of about 
3,500 people. My mother was a home economics teacher, and my 
father was a pilot. He taught people how to fly. That was his 
passion. They were both raised on dairy farms in central 
Michigan.
    My grandparents' farm was designated a centennial farm, 
owned and farmed for 100 years by the same family, in 1982. My 
grandparents are in the Michigan Farmers' Hall of Fame. I spent 
my summers on that farm. I helped with haying, and I showed 
cows at the county fair in 4-H and once at the Michigan State 
Fair.
    It was my dream to go to law school, and my parents 
supported that dream at a time when their friends thought it 
was a waste of money to send their daughters to college at all. 
When I went to law school, to the University of Michigan, I did 
not know that I would become a labor lawyer. But while I was 
there, I represented two women, non-union university workers, 
in a management review process.
    The first described to me how she made less than a male 
colleague who was doing the same work. I only talked with her 
on the phone, but I wrote a letter on her behalf, and she got a 
very sizable salary increase, and I was amazed.
    Next, I represented a woman who had worked in her 
department for 20 years, but was passed over for a supervisory 
position in favor of a recent graduate who happened to be white 
and male. She was neither. After a hearing before a faculty 
committee, she got a promotion, and I had fallen in love with 
labor law.
    After law school, I worked at the Detroit Regional Office 
of the National Labor Relations Board, Region 7, the busiest 
regional office at that time. I conducted representation 
elections for workers and served as a hearing officer in cases 
involving election issues. I also investigated and prosecuted 
unfair labor practice cases against both unions and employers. 
I filed briefs to the Board. I brought picket line injunction 
actions against unions in Federal court.
    While I was there, I received a Certificate of Commendation 
from then-General Counsel John Irving. Never, for 1 second, 
during my work at the Detroit Regional office did I think that 
one day I would have the honor of being considered to serve as 
a member of the Board.
    I loved working for the NLRB, in large part because I had 
the opportunity to work under the tutelage of Regional Director 
Bernard Gottfried. He was revered in the region, and there is 
still a memorial symposium every year in his honor. He had a 
deep knowledge and understanding of the law and was open to and 
respectful of all viewpoints and positions presented to him. He 
made sure he knew every fact and every aspect of a case before 
he made a decision on whether to issue a complaint.
    Most importantly, he cared deeply about the impact his 
decisions would have on the workplace, on the employer 
involved, and on the workers. He knew that real people would be 
affected by what he did, and he worked very hard to make sure 
his decisions were fair and honest. He was a role model, and I 
will strive to follow his example should I become a member of 
the Board.
    I also worked at a private law firm in Detroit that 
represented labor unions and workers and then became a staff 
lawyer for the International Union, United Auto Workers, in 
1982. I served as deputy general counsel at the UAW for 2 
years, handling the day-to-day administration of the UAW Legal 
Department, before coming to Washington, DC, in 2000, to join 
the General Counsel's Office of the AFL-CIO, where I advocated 
for their positions, including before Congress.
    My work on NLRA issues over the years has given me a deep 
appreciation for the work that the Board does and how important 
it is to all involved, workers, employers, labor unions, and 
their communities, and how much it matters that disputes get 
resolved fairly and in a timely manner. As a result of my work 
as a Board attorney and as a litigant, I have been repeatedly 
impressed with the dedication of the agency's staff, with their 
sense of pride of purpose and their hard work to make sure the 
agency fulfills its mission.
    I can assure you that I understand the importance of this 
office and how critical it is that Board members be neutral 
arbiters of the law. If I am honored to serve as a member of 
the National Labor Relations Board, I pledge to live up to the 
example of my formative mentor, Bernard Gottfried. I will 
approach every decision with an open mind, give every position 
very serious consideration, and always be guided by the mission 
of the agency and the impact a decision will have on those 
affected.
    I look forward to working with my fellow Board members to 
develop a collegial and productive deliberative process, to 
learn from their experiences and their points of view, and to 
fairly and faithfully enforce the law.
    Thank you for the opportunity to appear before you today. I 
look forward to your questions.
    [The prepared statement of Ms. Schiffer follows:]

         Prepared Statement of Nancy Jean Schiffer, B.A., J.D.

    Thank you Chairman Harkin, Senator Alexander, and members of the 
committee. I am honored beyond words to be here before you today as a 
nominee to be a member of the National Labor Relations Board.
    First, I would like to introduce my husband Goldwin Smith, who is 
here today and has always been my strongest supporter--we will 
celebrate 32 years of marriage next month. Our daughter Amelia Howerton 
and her husband Grant could not be here today as they both just started 
new jobs in California. Our son Michael, I know, is here with us in 
spirit.
    I grew up in a small town in southwestern Michigan--3,500 people. 
My mother was a home economics teacher and my father was a pilot--he 
taught people how to fly. They were both raised on dairy farms in 
central Michigan. My grandparents' farm was designated a centennial 
farm--owned and farmed for 100 years by the same family--in 1982. My 
grandparents are in the Michigan Farmers' Hall of Fame. I spent my 
summers on that farm. I helped with haying and I showed cows at the 
county fair in 4-H--and once at the Michigan State Fair.
    It was my dream to go to law school and my parents supported that 
dream at a time when their friends thought it was a waste of money to 
send their daughters to college at all. When I went to law school, to 
the University of Michigan, I did not know that I would become a labor 
lawyer.
    But while I was there, I represented two women--non-union 
university workers--in a management review process. The first described 
how she made less than a male colleague who did the same work. I only 
talked with her on the phone, but I wrote a letter on her behalf and 
she got a very sizable salary increase--I was amazed. Next, I 
represented a woman who had worked in her department for 20 years, but 
was passed over for a supervisory position in favor of a recent 
graduate who happened to be white and male--she was neither. After a 
hearing before a faculty committee, she got a promotion and I had 
fallen in love with labor law.
    After law school, I worked at the Detroit Regional Office of the 
National Labor Relations Board, Region 7--the busiest regional office 
at that time. I conducted representation elections for workers and 
served as a Hearing Officer in cases involving election issues. I also 
investigated and prosecuted unfair labor practice cases against both 
employers and unions, filed briefs to the Board, and brought picket 
line injunction actions against unions in Federal court. While there, I 
received a Certificate of Commendation from then-General Counsel John 
Irving. Never, for one second, during my work at the Regional office in 
Detroit did I ever think that one day I would have the honor of being 
considered to serve as a Board member.
    I loved working for the NLRB, in large part because I had the 
opportunity to work under the tutelage of Regional Director Bernard 
Gottfried. He was revered in the region and there is still a memorial 
symposium every year in his honor. He had a deep knowledge and 
understanding of the law and was open to and respectful of all 
viewpoints and positions presented to him. He made sure he knew every 
fact and every aspect of a case before he made a decision on whether to 
issue a complaint. Most importantly, he cared deeply about the impact 
his decisions would have on the workplace, on the employer involved, 
and on the workers. He knew that real people would be affected by what 
he did and he worked very hard to make sure his decisions were fair and 
honest. He was a role model and I will strive to follow his example 
should I become a member of the Board.
    I also worked for a private law firm in Detroit that represented 
labor unions and workers and then became a staff lawyer for the 
International Union, UAW, in 1982. I served as Deputy General Counsel 
at the UAW for 2 years, handling the day-to-day administration of the 
UAW Legal Department, before coming to Washington, DC, in 2000, to join 
the General Counsel's Office of the AFL-CIO, where I advocated for 
their positions, including before Congress.
    My work on NLRA issues over the years has given me a deep 
appreciation for the work that the Board does and how important it is 
for all involved--workers, employers and labor unions--and how much it 
matters that disputes get resolved fairly and in a timely manner. As a 
result of my work as a Board attorney and as a litigant, I have been 
repeatedly impressed with the dedication of the Agency's staff, with 
their sense of pride of purpose and their hard work to make sure the 
Agency fulfills its mission.
    I can assure you that I understand the importance of this office 
and how critical it is that Board members be neutral arbiters of the 
law. If I am honored to serve as a member of the National Labor 
Relations Board, I pledge to live up to the example of my formative 
mentor, Bernard Gottfried: I will approach every decision with an open 
mind and give every position serious consideration; and in every 
decision I will be guided by the mission of the Agency and the impact 
of a decision on all affected. I look forward to working with my fellow 
Board members to develop a collegial and productive deliberative 
process, to learn from their experiences and their points of view, and 
to fairly and faithfully enforce the law.
    Thank you for the opportunity to appear before you today and I look 
forward to your questions.

    The Chairman. Thank you very much, Ms. Schiffer. We'll 
start a round of 5-minute questions.
    First, I want to note for the record the tremendous 
background that both of you bring to this, Ms. Schiffer having 
worked in the regional office so many years ago and Mr. 
Hirozawa being with Mr. Pearce for all these years as his 
counsel. I think it's very clear that you both bring a 
tremendous background and a wealth of information and knowledge 
to this position on the NLRB.
    I have a couple of questions. I'll start with Ms. Schiffer.
    As you pointed out, as the counsel for the AFL-CIO, you 
advocated for their positions. That's what a good lawyer does. 
That's what a counsel does.
    Ms. Schiffer. I tried to.
    The Chairman. That's right. So in the past--and I might 
make it very clear for the record that you and I have worked 
together on issues in the past in terms of labor laws. 
Specifically, you had advocated for a bill that I sponsored 
called the Employee Free Choice Act. This legislation had three 
major provisions. One, it allowed workers to form a union 
through the use of signed authorization cards rather than a 
formal election, what was called card check.
    Second, it created a mechanism to ensure that workers who 
formed a union were able to get a first contract through 
binding arbitration. And, third, it strengthened the remedies 
available when there are violations of the National Labor 
Relations Act.
    I've been involved in these issues for most of my adult 
life, both here in the Senate and in the House before that. I 
felt strongly about this legislation. Many of my colleagues do. 
I still would like to make it clear that I'd like to see these 
reforms enacted. I'm speaking for myself, that I'd like to see 
these reforms enacted, and I think a lot of my colleagues would 
like that also. But I want to make some things very clear.
    Ms. Schiffer, could the Board, the NLRB, implement any 
provisions of the Employee Free Choice Act that I just 
described by using its rulemaking authority?
    Ms. Schiffer. They could not. It would require 
congressional action.
    The Chairman. I want to make it very clear for the record. 
Congress would have to pass a law to make these changes. Is 
that correct?
    Ms. Schiffer. Right. The provisions of the Employee Free 
Choice Act require congressional action.
    The Chairman. Which, of course, I hoped we would do--that 
issue--and we never really got to the merits of that. But I'm 
not going to bore the people here and the committee with a 
rehash of that.
    Mr. Hirozawa, the current Board has been criticized by many 
of my colleagues on the Republican side, I might say, as being 
excessively partisan or somehow out of step with previous 
Boards and Board traditions. I know that Chairman Pearce has 
proactively taken steps to foster more collaboration among the 
Board's members, and I have met with him periodically about 
that.
    Mr. Hirozawa, how would you respond to that 
characterization of both the Board--the accusations, but also 
Chairman Pearce's actions? Have Chairman Pearce's efforts led 
to more consensus-based decisionmaking?
    Mr. Hirozawa. Yes, I think they have, and he has made 
tremendous efforts in that direction. It's important to 
recognize the value of having a diversity of viewpoints on the 
Board, and that is and has been very valuable. But it takes 
some work to arrive at a consensus, and he has taken the lead 
in encouraging discussion among Board members, both formally 
and informally, both before and after formal votes, in order to 
try and arrive at a result that everyone can live with.
    One of the concrete things that he's done is reinstituting 
case meetings at which all members of the Board sit down face 
to face to discuss cases. And that is something which, over the 
history of the Board, has not been the norm. He has also 
participated in and encouraged all members to participate in 
one-on-one discussions with each other of legal issues that 
they may not at least start out seeing eye-to-eye on.
    The Chairman. Thank you. Some people say the Board only 
protects the rights of labor unions and union workers. Could 
you both tell us a little bit about how the Board protects the 
rights of non-union employees?
    Mr. Hirozawa.
    Mr. Hirozawa. The Act, for its entire history, has always 
protected the rights of employees to work together with each 
other to address their terms and conditions of employment 
regardless of whether there is a union involved or not. And 
this goes back to the early days of the Act.
    There's a Supreme Court case from the early 1960s, 
Washington Aluminum, which made it very clear that employees 
there in a non-unionized metal shop where there was no question 
of union representation--they were just getting together to try 
and address the freezing conditions in the shop. The Board 
granted them a remedy, and the Supreme Court said that the 
Board was right. It doesn't matter whether you have a union or 
not. You are protected by the Act.
    The Chairman. Do you have anything to add to that, Ms. 
Schiffer?
    Ms. Schiffer. Sure. Section 7 of the Act also protects 
workers' rights to engage in activities for their mutual aid 
and protection, and that's been interpreted for those kinds of 
activities with or without a union. When I was at the NLRB in 
the Detroit regional office in the late 1970s, I had a case 
where a group of workers who worked for a credit card company--
at that time, it was Data Entry--and they passed around a piece 
of paper at their workplace, at their tables, and wrote down a 
list of grievances, and they wanted to meet with their 
supervisor about these grievances. They didn't have a union. 
They didn't want to have a union.
    But they wanted to meet with their supervisor about this 
list of grievances, and they all got fired. So they ended up at 
the National Labor Relations Board, and there was a case on 
their behalf. But they were workers who engaged in activities 
for, ``mutual aid and protection,'' and so their right to do 
that was protected by the Act.
    The Chairman. Thank you both very much.
    Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman.
    Welcome again. I appreciate the chairman's question about 
the Employee Free Choice Act, because I would have asked it 
myself if he had not, and I appreciate the answer as well. Let 
me ask a similar question about what we call the right-to-work 
law, or Section 14(b) of the Taft-Hartley Act.
    In our State of Tennessee, we're one of 24 States with a 
right-to-work law. We strongly support that, and it's been the 
primary driver of the expansion of our auto industry over the 
last 30 years. It includes both the General Motors plant, which 
has a United Auto Workers partnership, and it includes plants 
like Nissan and Volkswagen, which do not, and hundreds of 
suppliers. So it's very important to us that the right-to-work 
law be protected.
    To each of you, I'll ask the same sort of question we ask 
about what we call the card-check law, or what Senator Harkin 
calls the Employee Free Choice Act, which has to do with the 
secret ballot. Do you believe that the right-to-work law can be 
changed, that the freedoms granted to workers under the right-
to-work law can be changed by members of the National Labor 
Relations Board, or does that require an act of the Congress?
    Ms. Schiffer.
    Ms. Schiffer. What you're describing is in section 14(b), 
as you mentioned, of the National Labor Relations Act. It's 
statutory. It cannot be changed by the members of the National 
Labor Relations Board. It would require congressional action to 
make changes in that area. It's fairly straightforward in the 
Act.
    Senator Alexander. Mr. Hirozawa.
    Mr. Hirozawa. Yes, that's absolutely clear. The right-to-
work is a matter for Congress and the States to decide. The 
Board has nothing to say about it.
    Senator Alexander. Does that then mean that you would not 
consider it an unfair labor practice if an employer in a non-
right-to-work State sought to expand in a right-to-work State?
    Mr. Hirozawa. I think that as a general matter, that 
wouldn't make out a violation. But I think that any case that 
might come before the Board would have to be considered on the 
facts of the particular case, and it's very difficult to draw a 
conclusion from a broad hypothetical.
    Senator Alexander. Ms. Schiffer.
    Ms. Schiffer. That, in and of itself, would not be a basis 
for a violation. There might be a violation, given additional 
circumstances and facts that aren't in what you just posed.
    Senator Alexander. It wouldn't be a prima facie case of a 
violation.
    Ms. Schiffer. Not the way that you just said it.
    Senator Alexander. It's not a far-fetched example. We just 
had a pretty big argument about the NLRB's Acting General 
Counsel's actions with the Boeing case, which sent shudders 
through employers all over the country. Let me ask you one 
other question and go back to the impartiality thing.
    Ms. Schiffer, you've been one of the senior members of the 
AFL-CIO at a time when, in 2007, the National Organizing 
Director, Stewart Acuff, said the Labor Board should be closed 
for renovations until a new Board could be appointed by a new 
president, and the director of the Voice@Work Campaign said 
it's time to shut the Board down and close it for renovation. 
You've testified for what we call the card-check legislation. 
You've been a very prominent and effective advocate.
    Mr. Hirozawa, you wrote a 2008 article in the AFL-CIO 
Lawyers Coordinating Committee newsletter referring to the 
union movement as, ``our movement.''
    You've made some statements to reassure employers of your 
impartiality. But what can you say to assure employers who will 
come before a Board that might include you, that you will move 
from the position of advocate--which you've been a pretty 
fierce one--on behalf of labor to an impartial judge? How could 
you assure an employer that when they come before the Board, if 
you're on it, that you'll do that?
    Ms. Schiffer. It's an interesting way that you've posed the 
question, because it reminded me that when I went from the NLRB 
as a field attorney for the NLRB to private practice, clients 
that would come before us, when I was assigned their case, I 
knew were thinking and would sometimes say, ``How do I know 
that you're going to be an advocate for me? You just came from 
the National Labor Relations Board.''
    So I appreciate that these are two different roles, 
advocate and neutral arbiter. But I believe in the Act, and I 
want all litigants who come before the Board to feel that they 
have been dealt with fairly and honestly. You mentioned that in 
your statement, and I'm committed to that. I think it's 
important that that happen, and that's what I will do.
    I have no pre-conceived agenda. I will approach the cases 
that come before me with an open mind. I will carefully 
consider all the facts, the positions of the parties. I'll have 
the opportunity to engage with the experience and background of 
the other members, the other nominees for the National Labor 
Relations Board--we have some diverse backgrounds--and an 
opportunity to take advantage of the experience and the 
knowledge of the career staff people. I want to make sure that 
decisions that I reach are done in a fair manner and an honest 
manner.
    Senator Alexander. Thank you, Ms. Schiffer.
    Mr. Chairman, my time is up. I don't know if Mr. Hirozawa 
may want to give a short answer.
    Would you like to make a short answer to that?
    Mr. Hirozawa. Yes, if I might. I just want to assure you, 
Senator, that I have a very clear understanding of the 
difference between someone who is an advocate and someone who 
is an impartial adjudicator, and I've had experience in both 
roles. I think that I've been able to act appropriately in both 
roles, and I promise to you and all of the other members of the 
committee that I will do my absolute best to look at every case 
that comes before the Board impartially and fairly and without 
regard to who the parties might be.
    Senator Alexander. Thanks, Mr. Chairman.
    The Chairman. Thank you, Senator Alexander.
    In order of appearance, we'll have the following: Senator 
Warren, Isakson, Murphy, Hatch, Bennet, Scott, Baldwin, Casey, 
and Franken, in that order.
    Senator Warren.

                      Statement of Senator Warren

    Senator Warren. Thank you very much, Mr. Chairman.
    Welcome to Mr. Hirozawa and to Ms. Kelly, to Miles and to 
Nora. I'm glad you're all here today. You must be very proud.
    I also want to say welcome to Ms. Schiffer and to your 
husband, Mr. Smith. It's good to see you all here.
    The NLRB has a double set of duties, to resolve workplace 
disputes and to monitor union elections. Both Republicans and 
Democrats sit on the NLRB Board, and it is my understanding 
that the overwhelming majority of your decisions are, in fact, 
unanimous, that you achieve unanimous decisions, 
notwithstanding the fact that there are certainly some times 
that there are disagreements.
    But the Nation respects the rule of law and due process, 
and the NLRB gives an opportunity to employers and employees to 
get their disputes resolved and to make sure that elections are 
free and fair for unions. And I want to say I'm delighted to 
see two very highly qualified nominees here. I think this is 
great.
    Mr. Hirozawa, I wanted to start by saying that as I looked 
through your resume, I was very impressed by the wide range of 
experience you have, starting with being a clerk on the Second 
Circuit, your extensive experience in the private sector, a 
wealth of experience working directly for the NLRB, in addition 
to your role as chief counsel. You also served as a field 
attorney, dating back to the 1980s.
    What I wanted to ask you to do is take a minute or two and 
describe how your experiences in these different roles, both as 
a junior and a senior attorney at the NLRB, as a private 
attorney, as a law clerk, will affect your performance as a 
member of the Board.
    Mr. Hirozawa. Thank you, Senator Warren. I think that there 
are a lot of ways in which those experiences will be helpful. 
In addition to what I described in my opening statement, from 
my experience as a field attorney, not only am I familiar with 
the quality and dedication of the employees that we have in the 
field, but I know from personal experience the reality on the 
ground. I know how cases are investigated, how most of them are 
settled before any kind of formal proceeding. I have been a 
hearing officer in representation cases, so I have a practical 
understanding of how that process works.
    In my work as an attorney in private practice, I'm familiar 
with what lawyers and parties appearing before the National 
Labor Relations Board have to contend with and what makes their 
jobs easier and more difficult. And I've tried, since I've been 
here at headquarters, to do things that would make it easier 
for them.
    Senator Warren. I appreciate it. Go ahead, but I need to 
make it short so I can ask Ms. Schiffer a question, too.
    Mr. Hirozawa. OK. Also, in private practice and at the 
Board, I had an opportunity to work with a lot of management 
attorneys who were very professional, and I've always had good 
relationships with them.
    Senator Warren. Thank you so much. I very much appreciate 
it. Thank you.
    Ms. Schiffer, it seems a little shocking to me that in 2013 
we are still talking about equal pay for equal work. But 
according to the Department of Labor, women earn 77 cents on 
the dollar earned by men. Pay equity is an important issue for 
American women, and Congress has taken good steps in the right 
direction by passing the Lilly Ledbetter Fair Pay Act. I am 
also proud to have co-sponsored the Paycheck Fairness Act, 
which would move us further still.
    But no matter what Congress does, the reality is that a 
fully functioning NLRB is an essential tool to promoting pay 
equity. Now, the NLRB is essential to protecting gains that 
workers have achieved through collective bargaining, and that's 
becoming increasingly important, because now union membership 
is 45 percent women and on target for women to make up a 
majority by 2020. So could you discuss very briefly how the 
NLRB helps women workers who are pursuing equal pay for equal 
work?
    Ms. Schiffer. The NLRB has no specific jurisdiction over 
pay equity or equal pay claims. But the NLRA does protect 
workers' rights to be able to talk about these issues, to be 
protected if they want to reach out to other workers to be able 
to engage in any discussion or collective action about these 
kinds of issues, and is able to provide that level of 
protection for workers so that they can learn about what's 
going on with themselves and their co-workers and be 
knowledgeable until they can, if they decide to do so, take 
collective action about those issues.
    Senator Warren. Thank you very much, Ms. Schiffer. I see 
that I am out of time. I want to apologize. I'm going to have 
to leave. We have a Banking hearing running simultaneously. 
But, again, thank you both for your willingness to serve.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Warren.
    Senator Isakson.

                      Statement of Senator Isakson

    Senator Isakson. Thank you, Mr. Chairman.
    Mr. Hirozawa, I want to comment that you're about to go up 
for confirmation in a position that takes the role of a judge. 
You have the voice of a judge--very melodic, and I just wanted 
to make that comment.
    Mr. Hirozawa. Thank you.
    Senator Isakson. You are also chief counsel to Mr. Pearce. 
Is that correct?
    Mr. Hirozawa. That's right.
    Senator Isakson. During the time that the Specialty 
Healthcare decision was made? Is that correct?
    Mr. Hirozawa. That's correct.
    Senator Isakson. Could you explain to the committee why the 
chairman decided to undo decades of precedent in the Specialty 
Healthcare case?
    Mr. Hirozawa. Senator Isakson, thank you for bringing this 
subject up, because it's an important issue and it's been, with 
good reason, the subject of a lot of discussion. It's been my 
privilege to serve as Chairman Pearce's chief counsel at the 
Board for the past several years, including when he was a 
member on the Specialty Healthcare decision.
    My service is governed by the ethical standards that govern 
attorney-client relationships. So I'm really not in a position 
to be able to discuss his particular views on that, other than 
what has been expressed in detail in the decision. And I'm 
constrained to let that speak for itself.
    Senator Isakson. Well, in light of that answer, let me ask 
your opinion on a question that doesn't involve Mr. Pearce's 
opinion. In your opinion, do you agree with the Board's 
decision to apply a decision concerning an acute nursing 
facility to all matter of industries, including those having 
nothing to do with medical health, like Bergdorf Goodman or 
Macy's? In your opinion, not his.
    Mr. Hirozawa. Yes, I understand the distinction. The 
trouble is that in my capacity as counsel to the chairman--at 
the time of that decision, he wasn't the chairman. He was a 
member. But my duty is to advise him. I tell him what I think, 
we discuss it, and I really can't go into what my personal 
views at the time may or may not have been. And, of course, I 
can't be in the position of prejudging any case that might come 
before the Board in the future.
    I think what I can say is that Specialty Healthcare is the 
controlling decision of the Board right now. And my view of how 
Board members should do the job is to show great respect for 
precedent and to depart from it only on very rare occasions.
    Senator Isakson. Excuse me for interrupting, but I want to 
make sure my time doesn't run out. Since you can't give me a 
statement on your opinion in those two cases, let me ask you 
about your testimony. You talked about your father packing a 
bag for 2 weeks and going to the workplace because he 
anticipated a strike and a disruption of the operation of the 
business. Is that correct?
    Mr. Hirozawa. That's right.
    Senator Isakson. If a company had 35 departments within 
their facility, like a hardware store or a lumber yard or a 
manufacturing company or an automobile manufacturing company--
they had 35 different departments, a shoe department, a paint 
department, whatever it might be, can you imagine how 
disruptive it would be if all 35 were individually organized as 
a union?
    Mr. Hirozawa. That would make labor relations much more 
complicated, absolutely.
    Senator Isakson. That's what the Specialty Healthcare 
decision did, because it effectively opened the opportunity for 
fragmented representation within the same entity, which, as you 
stated in your own testimony of your father's experience, would 
be terribly, terribly disruptive. I've got enough time for one 
other quick question.
    Assuming that you're confirmed, there are any number, over 
1,000, I think, decisions made by the previous Board that have 
been rendered invalid because of their appointment during the 
recess in the circuit court decision. Do you think it would be 
appropriate for you to ratify those decisions retroactively 
before the U.S. Supreme Court decides on the circuit court 
case?
    Mr. Hirozawa. That's a question that the Board may have to 
decide.
    Senator Isakson. And you would be one of those Board 
members.
    Mr. Hirozawa. That's right. And it's something that I would 
have to consider carefully. I haven't given a great deal of 
thought to it at this point, and if I were to become a member, 
it's something that I would need to discuss with my colleagues 
and try and arrive at a sensible conclusion.
    Senator Isakson. Well, I'm a little over, but since the 
chairman is not listening, I'm going to take liberty.
    [Laughter.]
    In the interest of equal opportunity, can you answer that 
question, Ms. Schiffer?
    Ms. Schiffer. I agree with Kent that this is a question 
that very likely will come to the new Board. And because, as 
I've stated, I do not want to become a Board member with any 
preconceived agenda, I wouldn't be in a position to indicate a 
position on that now, and I don't have a position on that now. 
I haven't been privy to all of the circumstances, the number of 
cases, where they are in the process, and I just wouldn't be in 
a position to answer at this point.
    Senator Isakson. Thank you very much.
    The Chairman. Thank you, Senator Isakson.
    Senator Baldwin.

                      Statement of Senator Baldwin

    Senator Baldwin. Thank you, Mr. Chairman and Ranking Member 
Alexander and today's nominees. It's a pleasure to have you 
here. I want to say how heartened I am that we are here today 
and seeing this confirmation process moving forward. Our 
country needs a well-functioning National Labor Relations Board 
with a full slate of members, and this need is, I think, 
particularly acute in my own home State of Wisconsin.
    Wisconsin is, at its very core, a manufacturing State. And 
during the great recession, and I would say even in the years 
and perhaps decades prior to that, our manufacturing sector in 
Wisconsin and certainly throughout big portions of the country 
have taken a real hit. And when companies sought to close or 
cut jobs or have employees take concessions, the NLRB helped to 
enforce employers' duties, to bargain with organized employees, 
and to try to achieve the best possible outcomes. As a result, 
workers' rights were realized.
    I think about the impact it would have if the NLRB were to 
lose its enforcement authority. The duty to bargain would lack 
teeth, and many middle class families in my State and across 
the country would be harmed. I have a very broad question, sort 
of looking at the Board at 50,000 feet, if you will. I'd like 
each of you to comment on the role that you see the Board 
playing in both vindicating the rights of working families and 
their employers, and also the role in strengthening an economy 
that has gone through a lot in recent years.
    I'll start with you, Mr. Hirozawa.
    Mr. Hirozawa. As Chairman Harkin pointed out in his 
introductory remarks, the Board has a unique role in giving 
American workers a place to come in order to make sure that 
their ability to have something to say about the conditions 
that they work under is protected. That's something that is 
crucial to having a well-functioning economy, and it's 
something that I think has proved its value over the 75-plus 
years of the Board's existence and continues to be crucially 
important.
    Senator Baldwin. Thank you.
    Ms. Schiffer.
    Ms. Schiffer. The Act itself indicates that it was designed 
to help promote industrial peace. And I believe that when it 
works in a way that is fair, people view it as a neutral, and 
when it is able to function in an efficient manner and be able 
to expeditiously resolve labor disputes for the parties, and 
when people can have clear rules about what they're supposed to 
do--by rules, I mean rules of law--guidelines, and have some 
certainty with that, that promotes industrial stability, and 
that does help our economy.
    Senator Baldwin. I know that the Board looks at individual 
disputes and also oversees elections. But given this broad look 
at the situation and the reference to industrial peace, what do 
you think the greatest challenges are to that--what are the 
biggest challenges facing businesses and workers in the 21st 
century? And how are you qualified to help us address those 
challenges?
    Ms. Schiffer. As a member of the Board, in the capacity of 
enforcing the mission of the Act, that would be what I could 
do. But I know that the challenges are great in trying to work 
in a global economy, trying to work to keep up with 
technological changes and the advances there, and trying to 
keep up with the workforce challenges and workforce demands. 
All of these are very difficult problems, and there's certainly 
lots more that I could mention.
    But as a member of the Board, my role would be to sort of 
effectuate the purposes of the Act and, to the extent that that 
then helps allow people the space for resolution of labor 
disputes so that they can resolve and compete and meet these 
other challenges, that would be the role.
    Mr. Hirozawa. The challenges are great, and the fact is 
that the Board's role is actually pretty narrow. The Act is 
very specific in the rights that it confers and in the powers 
that it gives the Board. So there's a tremendous amount to be 
done. The Board's role covers what, in some ways, I think, is a 
very small slice of that. All I can say is that we all have to 
do our part, and I'm committed, if I'm confirmed, to doing the 
part that's been assigned to the Board.
    Senator Baldwin. Thank you both for stepping forward to 
meet those challenges.
    The Chairman. Thank you, Senator Baldwin.
    Now we'll go to Senator Hatch.

                       Statement of Senator Hatch

    Senator Hatch. Thank you, Mr. Chairman.
    I welcome both of you to the committee. We appreciate your 
willingness to serve. I remember many years ago, Irving Brown 
came to me, who was the international vice president of the 
AFL-CIO. He had gone into Paris before the end of the second 
World War in the underground and helped to win the war. And, of 
course, afterwards, the Soviets had a phony trade union that 
they were going to impose all over Europe, and Irving Brown 
took them on and beat them, beat them at the French docks.
    He was one of the people I most admired in all of my 
service in the Senate. He got me involved in free trade unions 
from all around the world and solidarity. It was a privilege 
for me to go and meet with Lech Walesa and others in Gdansk. We 
helped get them the materials that they needed to be able to 
keep up their effort. It was all due to Irving Brown--helped to 
formulate the National Endowment for Democracy, which is very, 
very important to him and to us.
    I remember one time he was over at the ILO, the 
International Labor Organization, the largest U.N. affiliated 
organization, and he called me, and he said, ``We need you to 
come over here.'' He said, ``They've got a resolution against 
Israel, and if it passes, we have to pull out of the ILO, which 
would be catastrophic for the world.''
    So at his request, I flew over there, and he took me to all 
the non-aligned delegations. And I left before the vote, but 
they had a secret ballot vote, and we won. I admired him as 
much as anybody I've met in politics.
    Lane Kirkland, the former head of the AFL-CIO, said to me 
one day, ``Senator, if only you were as good in domestic policy 
as you are in foreign policy,'' and I said, ``Lane, I was 
thinking precisely the same thing about you.'' And he went, 
``Oh, oh,'' and then caught on to it and actually laughed about 
it.
    But I have a lot of respect for what you're trying to do. 
We all are worried about whether either of you or both will be 
partisan in this job, and it's a natural concern.
    Ms. Schiffer, with all of the controversy surrounding the 
NLRB in recent years, I believe that it is vital that we have 
qualified and objective members appointed to the Board. And 
given your credentials, it's obvious that you are a talented 
lawyer.
    I can say the same thing about you, Mr. Hirozawa. In terms 
of your resume, I don't doubt that you're qualified to serve on 
the Board.
    However, I have serious concerns about your ability to be 
objective, because it's really important that you are and that 
you will be. I won't name names, but in recent years, we've had 
former union lawyers nominated to the Board who came before 
this committee and promised that they would be objective, that 
they wouldn't let their former employment cloud their judgment 
when it comes to resolving disputes between labor and 
management. Needless to say, I don't think those promises they 
made here were kept.
    It seems like we're in a similar position with your 
nomination. You spent the vast majority of your career working 
directly for unions, and you've spoken and written extensively 
in favor of the unions' positions with regard to public policy. 
On top of that, we read all the news reports prior to the 
announcement of your nomination that President Obama was 
actually consulting with the AFL-CIO about who he should 
nominate to the Board.
    Given all this, how can you assure us that once you are on 
the Board you will remain objective? How can we be sure that 
you won't become yet another union partisan on the NLRB and 
that you will treat all people who come before the Board fairly 
and objectively?
    Ms. Schiffer. Thank you for your question, and I appreciate 
the concern--that you would have that concern. As I said, I 
started at the Detroit regional office. I had an exemplary role 
model there. And while I was there, I was, as Mr. Hirozawa 
said, a pro-Act field attorney, and my job was to fulfill the 
mission of the Act, and that's exactly what I did. And then I 
became an advocate, and I understand that this position is 
different.
    I think it is also important in thinking about this that we 
will have, hopefully, the benefit of a full Board, and we will 
have varying backgrounds there. I had the opportunity, for 
example, to work with Phil Miscimarra, who is another nominee 
to the Board, within the last couple of years on an ABA 
project. We did a webinar together. It was a webinar to explain 
the election rules.
    When we approached this, I knew that he has on occasion 
advocated on behalf of the Chamber of Commerce. I think I had 
made the suggestion that we really need to do this sort of 
straight up. We need to do it not with ideological rhetoric in 
it. We just really need to do it straight up, and that's 
exactly what we did.
    My point is that I developed a lot of respect for him. He 
was very knowledgeable about the law, and that's how we did the 
presentation. So I'm looking forward to be able to have this 
kind of engagement at the Board and develop a very collegial 
and productive relationship with the other nominees.
    Senator Hatch. I'll take your word on that.
    Mr. Chairman, might I have the liberty of asking a question 
of Mr. Hirozawa?
    The Chairman. I'm sorry. I didn't hear that, Orrin.
    Senator Hatch. May I have the liberty of just asking one 
question of Mr. Hirozawa?
    The Chairman. Sure. Go ahead.
    Senator Hatch. Thank you so much.
    Mr. Hirozawa, I'm impressed with both of you, and I'm 
hopeful that you'll be great members of the Board. Mr. 
Hirozawa, prior to 2011, the NLRB had engaged in rulemaking on 
one occasion. Yet in 2011, the Board finalized two rules, both 
of which were extremely controversial.
    The first was the notice posting rule requiring all 
employers to display a poster informing employees of their 
rights to join a union, or form a union, rather. The second was 
what some have called the ambush elections rule, which would 
have greatly accelerated the pace of union certification 
elections. Both of these rules have been invalidated by the 
Federal courts as of today.
    Now, I have three questions. First, as chief counsel to the 
NLRB Chairman Pearce, what role did you have in developing the 
substance of these two failed rules? Second, do you believe 
that these rules represent good policy? And, finally, do you 
believe that the Board's limited history with successful 
rulemaking should give Board members pause when considering 
whether to engage in rulemaking in the future?
    Mr. Hirozawa. Thank you, Senator Hatch. I understand that 
the rules have been the subject of a great deal of attention. 
And I think that from that experience, both of the rulemaking 
and the litigation following the issuance of the rules, there 
are lessons for the new Board to learn.
    Because I was Chairman Pearce's chief counsel, naturally, I 
spent a great deal of time discussing the substance of those 
rules with him. But for the same reason, I'm just not at 
liberty to say anything about the substance of those 
discussions or my role as counsel with respect to the 
rulemaking.
    In the employee rights notice rule discussion, or 
litigation, I should say, I understand that a petition for re-
hearing was filed earlier this week. But the new Board will 
have some serious issues to consider and to decide about what, 
if anything, to do in the future concerning that rule, 
concerning the rule about representation in case procedure, and 
also the remainder of the proposed rule. And that's clearly 
something that the new Board will have to decide and----
    Senator Hatch. I understand. The third part of my question, 
though, was do you believe that the Board's limited history 
with successful rulemaking should give Board members pause when 
considering whether to engage in rulemaking in the future? 
That's not asking you to make a determination.
    Mr. Hirozawa. I would say, yes, it's something that a 
reasonable person in that position would have to take a very 
close look at and consider carefully.
    Senator Hatch. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Hatch.
    Senator Casey.

                       Statement of Senator Casey

    Senator Casey. Thank you, Mr. Chairman.
    I want to thank both of our nominees for not just your 
testimonies today, but your willingness to serve and your 
demonstrated commitment to the goals of the Act. Listening to 
both of your stories, your life experience as well as your 
professional experience, it's a remarkable tribute to the 
American experience. And we tend to see that on a regular basis 
in this room, but today is especially noteworthy, and you and 
your families should be proud of your service so far and I hope 
will be proud as well by your continued service.
    Sometimes we get caught up in Washington in the back and 
forth about politics or also about the National Labor Relations 
Board. And we need to remind ourselves not just once in a while 
but on a more frequent basis what undergirds this Act.
    I represent Pennsylvania, and we had about as difficult a 
set of chapters in our history as any State in the Union when 
it came to labor-management disputes, where violence led to 
people being killed, literally, because of labor disputes; 
where industries would grind to a halt because we had no way of 
resolving differences. So that was one of the historical 
antecedents to the National Labor Relations Act in the 1930s.
    And, unfortunately, we still need the Act. I wish things 
were otherwise, and we wouldn't need the Act and wouldn't need 
a Board, that these disputes could be settled in another way. 
But I think it's important to remind ourselves what the Act 
says. Throughout the findings of Congress when they passed the 
Act, it talks about the free flow of commerce, and making sure 
that we take steps to safeguard commerce from injury, 
impairment, or interruption--that's on the negative side--and 
on the positive side, to promote the free flow of commerce.
    But then at the very end of this five-paragraph section in 
the first section of the Act, it says,

          ``It is declared to be policy of the United States to 
        eliminate the causes of certain substantial 
        obstructions to the free flow of commerce and to 
        mitigate and eliminate those obstructions when they 
        have occurred by encouraging the practice and procedure 
        of collective bargaining.''

    It's very important that we have each of you in place, that 
we have a functioning Board. Your willingness to serve and this 
confirmation process will ensure that we have a functioning 
Board for all the reasons and many more set forth in the Act. 
So it's vitally important that we get this done.
    I wanted to ask in the short time that I have, about 2 
minutes, if you could focus--and I know there are a number of 
aspects of your record and your work and your life history that 
you could point to--but if you could focus on one or two life 
experiences or political and governmental experiences you've 
had that would particularly focus on your ability to be 
objective and balanced.
    We don't ask you to come before us as if you were a 
machine, to achieve scientific certainty that you will be 
balanced. You're both human beings. All of us are. No one of us 
can achieve perfect balance, but to the extent that you can, 
focus on life experiences that will give us a clue as to how 
you're going to be balanced in this role.
    Ms. Schiffer, if you could start.
    Ms. Schiffer. Life experiences. When I worked at the 
National Labor Relations Board in Detroit as a representative 
of the agency's regional office, one of the things I did was 
conduct secret ballot elections. I would typically go into a 
workplace--that's where most of them were conducted--and I 
would pass out the ballots, and people would mark the ballots, 
and we would count them at the workplace.
    There would be the workers and the company representatives, 
and we would announce the results. It was an amazing 
demonstration of democracy in the workplace, that workers had 
the opportunity to do that.
    Also when I was at the Board and after, I was involved in 
collective bargaining situations where we really had to try to 
work out what would be best. One of my practice areas was 
retiree health insurance, situations where the union believed 
it had negotiated continuing benefits for retirees, and then 
the company, for various reasons, changed or terminated those 
benefits.
    When that happened, we represented those retirees. We 
needed to be able to reach across the table and to reach an 
agreement about what would happen to their healthcare, so that 
the issue could be resolved in a way that the company would be 
able to provide those benefits, financially, and that the 
retirees would have some measure of continuance and coverage in 
their retirement.
    Another experience--and Senator Baldwin mentioned this with 
respect to manufacturing. In the early 1980s, there was a 
difficult economic period. I remember once going up to a city 
in the upper peninsula of Michigan that was a one-horse town, 
and the one horse was leaving.
    I went up there on behalf of the UAW represented membership 
there to try to reach a shut-down agreement with the company. 
We worked very hard to reach an agreement so that the employer 
could have an orderly and efficient shut-down, and so that the 
workers would be able to regroup and retrain or find new jobs 
or whatever they needed to do, because all of a sudden their 
whole life was being changed as well. And we did that, and we 
really accomplished a very satisfying, I think, on both sides, 
shut-down agreement.
    So those, I think, are the kinds of experiences that I've 
had that will help me as a member of the Board if I'm 
confirmed.
    Senator Casey. Mr. Hirozawa.
    Mr. Hirozawa. Hearing that makes me wish I had worked in 
the Detroit regional office. I have to say that one of the best 
kinds of experiences that I've had during my many years in 
private practice was as union co-counsel to jointly trusteed 
employee benefit funds.
    And there, on several different funds, I had the 
opportunity to work very closely with my management co-counsel, 
who was also generally the representative of the employer or 
the employer association, in collective bargaining matters and 
with the union and employer trustees in solving problems, which 
really were common problems. For the health funds, it was 
typically what to do about the rising cost of healthcare. And 
with the retirement funds, it was how to handle the investments 
in order to try and maximize the benefit that you can provide 
for the covered employees.
    What I learned from that experience is that most employers 
and most employer representatives want the best for their 
employees in terms of wages and benefits. But the environment 
can be very challenging sometimes, and nothing beats 
cooperation, working together and trying to achieve those 
goals.
    Senator Casey. Thank you.
    The Chairman. Thank you, Senator Casey.
    Senator Scott.

                       Statement of Senator Scott

    Senator Scott. Thank you, Mr. Chairman.
    Senator Casey, I actually enjoyed listening to your 
comments about how it would be nice to achieve the scientific 
certainty that our folks here may have a balanced approach. I 
would settle for just an ounce of optimism toward that.
    We've heard very consistently questions around finding a 
way to be objective in this process. And, certainly, with you 
two, we are looking for those answers, because it's an 
important part of the equation. One thing that I think is 
noteworthy is that the NLRB is not designed to be an extension 
of the President's team.
    We've had a lot of conversation of late of creating teams, 
of letting the President finish his team, and, ultimately, your 
nominations have been stuck in the quagmire pit of the 
President's team. And I hope that we all realize that the NLRB 
should not be a part of the President's team, but that the goal 
of the NLRB should be to become neutral arbiters. And I say 
``become'' because the activities of late of the NLRB have been 
anything but neutral.
    I hope your roles, if you are confirmed, will include 
perhaps a paradigm shift from your experience in the workforce, 
it seems to me, to one that allows you to take a look at things 
from a neutral perspective.
    I think, Ms. Schiffer, as I look at your experience, 
certainly, you've had lots of experience on the labor side that 
gives me a reason to pause and be concerned. And I would love 
to hear your answer at the end of my comments as it relates to 
how we could have greater confidence in your ability, as well 
as yours, sir, to be objective.
    As I looked through the experience in your history on the 
side of labor, I noted that for the last 12 years, you've been 
the assistant general counsel for the AFL-CIO. And we just 
heard you talk about card check. You've testified twice before 
Congress on card check, in a position where you don't 
necessarily like the secret ballot concepts, or the 18 years 
that you spent working at the AFL-CIO's department of the 
United Auto Workers in Detroit, or as recently as 2004, when 
you were a member of the UAW 1981.
    Those are some of the reasons that I find myself concerned 
in looking for not scientific certainty, but just an ounce of 
hope; that would be fantastic from my perspective. You said 
today that you believe in the Act, the NLRA. In 2007, you said 
that the NLRA, the Act itself, was being used as a sword by 
employers to frustrate employees' freedom of choice. And you 
also said that the Act no longer protects workers' rights to 
form a union. Further, comments that you've made about 
employers have ranged from they spy, harass, threaten, 
intimidate, bribe, and suppress.
    It seems to me that there is a perspective that may have 
been tainted on one side or the other. And in 2010, you 
commented that we really need to streamline the election 
process and eliminate so much delay that is now built into the 
National Labor Relations Act process.
    I'm not sure if you realize that the Acting General 
Counsel's fiscal year 2011 summary of operations set a target 
of about 42 days for a union to be formed, and the fact is that 
we are below target, around 38 days. But it seems to indicate a 
strong position for what we call the ambush election process, 
which only takes about 10 days.
    One of my favorites, of course, is your attack on the House 
Republicans in 2012 that I was a part of when you made your 
comments. You attacked, I think, my bill, specifically, H.R. 
2587, that prohibited the NLRB from destroying jobs created in 
one State in order to move them to another State.
    Your comments,

          ``Passing legislation in the House to deny the NLRB 
        authority to remedy illegal conduct when a company 
        eliminates or transfers work in order to deny workers 
        their rights,''
I take great exception to.

    First, there's no question that--as you are, I'm sure, well 
aware of--the NLRB has a number of weapons in their arsenal. 
The one that H.R. 2587 eliminated, had it passed both chambers, 
and the President signed it, which was obviously not going to 
happen--had it happened, however, it would have eliminated the 
opportunity for the NLRB to transfer jobs from South Carolina 
back to Washington.
    The premise of your comments was, in fact, that somehow, 
some way, there was an elimination of jobs in Puget Sound, WA, 
when, in fact, there were 2,000 jobs added to Puget Sound while 
we were adding 5,000 jobs in South Carolina.
    So my real question really is the same question we've heard 
asked a number of times: How can we have a high level of 
confidence of objectivity or impartiality or what we used to 
call the neutral arbiter, the NLRB?
    Ms. Schiffer. As I stated, I started my career as a lawyer. 
I've been primarily involved in traditional NLRA issues for 37 
years. But I started at the National Labor Relations Board, and 
I started in the capacity of being a neutral Board agent. And, 
as I said, I received a commendation from John Irving for that.
    But my point is that I take what I do very seriously, and I 
understand the importance of doing the job in the appropriate 
way. And I did that when I was at the National Labor Relations 
Board, and I hoped that I did that when I worked for the United 
Auto Workers and in private practice and for the AFL-CIO.
    I spoke when I testified from my own personal experiences. 
I saw workers who had been spied on. I saw workers who had been 
followed into the bathroom while they were at work so that 
their supervisors could hear who they talked to and what they 
talked about. So I tried to bring those experiences----
    Senator Scott. I certainly see your point. I was just 
saying that the generic classification of employers, 
generically speaking, as spies, harassing, and threatening 
creates an environment or a culture that seems to be 
inconsistent with most of the employers that I have had the 
opportunity to converse with and pay attention to. But I would 
just love to have some sense that there is the ability to be 
unbiased in the job that you are nominated for.
    Ms. Schiffer. I appreciate that, and I want the Act to 
succeed. I'm committed to the Act. I want this, now that we 
have this opportunity, possibly, for a full National Labor 
Relations Board with confirmed members, that it can be viewed 
as a fair and honest broker in these cases.
    And I'm committed to working with the Board staff to 
develop good relationships--I indicated that I have some 
experience with that already with Phil Miscimarra--and to 
develop that with the other Board members so that we can be 
productive and take advantage of each other's differing 
backgrounds and experiences, and be able to reach fair, 
reasoned decisions that are viewed that way so that people will 
have confidence in the Board. That will be my role if I'm 
confirmed as a member of the Board.
    Senator Scott. Thank you, ma'am.
    Thank you, Mr. Chairman.
    The Chairman. Senator Franken.

                      Statement of Senator Franken

    Senator Franken. Thank you, Mr. Chairman.
    I want to thank both of you for agreeing to serve on the 
NLRB. The NLRB was created to protect Americans' rights under 
the National Labor Relations Act. However, Board vacancies are 
threatening the NLRB's ability to operate, which has had a real 
impact on the lives of workers and employers.
    I asked previous nominees before this committee about the 
case of Susie Stetler, a school bus driver from Elk River, MN. 
Ten months ago, the Board issued a decision, but her case has 
been in legal limbo as a result of the D.C. Circuit's Noel 
Canning decision. Ms. Stetler still has not been rehired, and 
she's still waiting for $40,000 in back pay.
    Mr. Hirozawa, I'm sure you're aware of many similar cases. 
In a world in which the Senate confirms NLRB nominees in a 
timely manner, what should the process have been for someone 
like Ms. Stetler compared to how it actually played out for 
her?
    Mr. Hirozawa. The Board should have been able to obtain 
reasonably prompt enforcement of the order granting the remedy 
and I think would have if it didn't have to contend with the 
quorum issues in litigation.
    Senator Franken. And that's what's at stake here. I like 
what you said in your testimony--and it's been referred to--
hearing another employee describe this pro-Act, not pro-union 
or pro-management. We've heard a lot today about potential bias 
that you might have because you've worked for--Ms. Schiffer for 
the AFL-CIO--because you worked for the Board of the NLRB or 
worked for the chair.
    In the history of the NLRB, have there been people who have 
been nominated and confirmed before who have worked for labor? 
And have there been people before who have worked for 
management? Has that happened before, ever?
    Mr. Hirozawa. Yes, I think it has been--I think most recent 
members of the Board have either been management lawyers or 
have----
    Senator Franken. This isn't the first time this has 
happened.
    Ms. Schiffer. If I could just say, one of the members of 
the Board came directly from the Labor Policy Department of the 
Chamber of Commerce.
    Senator Franken. I heard Senator Warren say that an awful 
lot of the decisions that are made by the NLRB are unanimous. 
Is that correct?
    Mr. Hirozawa. Yes, that's correct.
    Senator Franken. So that would suggest to me that once 
you're a member of the NLRB, you're able to set aside--or maybe 
the issues that come before you are clear cut enough, or are 
such that people who have had a career as pro-labor or pro-
management can come together and be pro-Act.
    Mr. Hirozawa. Yes, I think it's a combination of all of 
those factors.
    Senator Franken. I think that has been our experience here.
    Mr. Hirozawa, while you worked at the NLRB, the number of 
Board members serving has ranged from two to five. Meanwhile, 
the NLRB received over 20,000 unfair labor practice charges 
last year alone. Tell me about the difference that a full Board 
makes in terms of handling the case volume before the NLRB.
    Mr. Hirozawa. It makes a huge difference. That was 
precisely the reason why in the Taft-Hartley Act in 1947 
Congress increased the size of the Board from three to five 
members, so that the Board could process cases more quickly and 
efficiently. And it does make a tremendous difference to have a 
full complement of Board members.
    It will also make a big difference to have a fully 
confirmed complement of Board members, because recess 
appointees are there for a very short period of time. What that 
means is that you have a lot of turnover, and each time you get 
a new member, there's a learning curve, and, naturally, that 
doesn't do anything for the goal of trying to move the cases 
expeditiously.
    Senator Franken. Again, I want to thank you both for 
offering yourselves or being willing to take this job.
    And thank you, Mr. Chairman, for this very important 
meeting, and I'd like to thank the Ranking Member as well.
    The Chairman. Thank you, Senator Franken.
    Senator Alexander.
    Senator Alexander. Thanks, Mr. Chairman. I only have a 
couple of questions, as Senator Franken's questions set me to 
thinking.
    Ms. Schiffer, can you think of anyone other than Craig 
Becker and yourself who came directly from employment by a 
union as a lawyer to the NLRB Board? I couldn't.
    Ms. Schiffer. None come to mind right now.
    Senator Alexander. Let me ask about what's called the 
Excelsior List. The current law requires employers to provide 
union organizers with a list of employees' names and home 
addresses. That's called the Excelsior List.
    The NLRB is pursuing a regulatory effort to expand that 
requirement to include cell phone numbers, email addresses, 
employee work location, shifts, and job classifications. A lot 
of employees have said that seems to them like an invasion of 
privacy. They don't want all that personal information shared 
without their consent.
    If you are confirmed, would either of you continue to 
pursue the portion of the proposed regulation that allows this 
invasion of employees' privacy?
    Ms. Schiffer. It's my understanding that there are still 
portions of the notice of proposed rulemaking previously issued 
regarding the election procedures--that's still pending. And if 
that were to come before the Board, then I would be considering 
it at that point in time, and I wouldn't want to prejudge that.
    I appreciate the issues of privacy. I appreciate the 
current Excelsior List. The rule dated from a Board decision in 
1960, 1966. So it's a fairly old rule. There wasn't the 
technology then. There is now. We communicate differently, I 
think----
    Senator Alexander. Well, we do. But we also have heightened 
concerns about invasion of privacy.
    Ms. Schiffer. Yes, right.
    Senator Alexander. And I would think as an advocate for 
employees, one would care about that.
    Ms. Schiffer. Yes. I think all of those are very legitimate 
considerations that would have to be reviewed by the Board in 
the event that there is further consideration of those portions 
of that outstanding notice of proposed rulemaking. So I 
couldn't prejudge it now. I don't have an opinion about that 
now.
    Senator Alexander. Would you consider, if it were to come 
up, at least allowing employees to opt out of such personal 
information requests? Do you think that's reasonable?
    Ms. Schiffer. That would certainly be something that would 
be considered, I assume, at the time and part of the 
consideration.
    Senator Alexander. Mr. Hirozawa.
    Mr. Hirozawa. Thank you, Senator. I agree that the privacy 
concerns raised by that kind of proposed rule are very 
substantial and would need to be considered very carefully by 
the Board in addressing that kind of proposal. Again, it would 
be inappropriate for me to prejudge any of those issues. We are 
going to be getting a new complement of members, it appears, 
and if I end up being one of those members, that's something 
that I would have to discuss very seriously with my colleagues.
    Senator Alexander. Would you also consider the opt-out 
provision should you go forward with a rule like this?
    Mr. Hirozawa. Yes, I would certainly consider it.
    Senator Alexander. The concerns about privacy in an era of 
social media and the Internet are not an exclusively Republican 
issue in the U.S. Senate. We hear as much about that from the 
Democratic side as we do from the Republican side. And I would 
hope that would be the kind of issue that would be considered.
    My last question is this. Ms. Schiffer, in an ABA meeting 
in 2012, you made a presentation, ``Congressional Review of the 
NLRB: Oversight or Over the Top.'' You said,

          ``Congressional efforts to oversee the NLRB through 
        information requests, letters, and hearings was an 
        unfocused or meandering witch hunt.''

    Does that suggest that you won't be willing to comply with 
letters or requests that we make of you if you were to be a 
member of the National Labor Relations Board?
    Ms. Schiffer. Not at all. And I believe that Congress does 
have the responsibility and the obligation to provide 
oversight. I respect the role of Congress. I would cooperate in 
any efforts in that regard.
    Senator Alexander. Thank you.
    Mr. Chairman, all I would ask, again, as I did at the 
beginning, is--we have scheduled a markup tomorrow, which means 
a vote. My guess would be, while it would be up to the 
leadership to decide that, that the first time this could be on 
the floor for consideration, should you be reported to the full 
Senate, would be next week.
    If you, Mr. Hirozawa and Ms. Schiffer, are reported, I 
would think there would be an up or down vote on your 
nominations. At least, I think there should be. However, 
Senators have a right to have answers to their questions and 
information that you provide. We have now all the information 
that we normally receive for Presidential nominees, and we've 
had this hearing.
    But I would ask the two of you that if Senators have 
additional questions--we will urge them to get them to you 
right away, and I would urge you to respond to them as fully 
and as completely as you can so that all members of the Senate 
could have your answers to the questions before the Senate 
might be asked to vote on your nominations next week.
    Thank you, Mr. Chairman.
    Ms. Schiffer. We certainly want to do that.
    Mr. Hirozawa. We'll do our absolute best.
    The Chairman. I would add that I hope the questions are 
pertinent to this position, reasonable, rational, and limited. 
I hope we don't have the kind of questions that were submitted 
to someone not on this committee--McCarthy, I guess her name 
was, Ms. McCarthy at the EPA, who had 1,200 questions. It would 
be impossible, I think, for anyone to respond to 1,200 
questions within that period of time we're discussing.
    Senators have an absolute right to ask questions and 
should. For the record, we call them QFRs, questions for the 
record. But I would hope, again, that they would be reasonable 
in number so that our proposed nominees can have a decent 
chance to examine them and respond to them. I hope that people 
will exercise some restraint in how many they ask without going 
overboard.
    I'd like to read, as I always like to read this from the 
National Labor Relations Act, Section 1, right in the beginning 
of the National Labor Relations Act.

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

    It is the policy of the United States to encourage the 
practice and procedure of collective bargaining. That's in the 
Act. Now, if people don't like that, I suppose they could offer 
to change the Act, but I haven't heard of any of that yet.
    Again, I thank you both. I thank your families for being 
here. I thank you both for your public service in the past. And 
I hope with the Ranking Member that we can get to this tomorrow 
on the vote, and then I encourage you both to respond to the 
QFRs, the questions for the record, as rapidly as possible and 
as thoroughly as you can answer those questions.
    On the other hand, I hope, Senators' staffs who are here 
and Senators listening in, that we not have an unreasonable 
number of questions that need to be responded to.
    If there's nothing more, I thank you both for your 
willingness to serve on this extremely important Board. As I 
said in the beginning, this Board really is the Board that 
helps both businesses and workers move ahead. I am aware of the 
fact that 91 percent--I believe I'm right on this--91 percent 
of all the cases that come into regional offices are settled at 
the regional level, 9 out of 10. So that means the Board is 
functioning, and it's functioning well.
    Every once in a while, a tough case comes up or something 
happens to get the Board to have to think about the application 
of the Act to modern circumstances. Perhaps, sometimes, that's 
when problems arise.
    But I have every reason to believe that now, having a full 
complement of the Board--for the first time in over a decade, 
we'll have a full Board able to meet, as you said, Mr. 
Hirozawa, and consult together. The kind of processes that Mr. 
Pearce has set up in the Board, I think, bode well for the 
future in terms of people working together and making the Board 
fully functional once again.
    I thank you all, and if there's nothing more to come before 
the committee, the committee will stand adjourned. Thank you.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

 Response by Kent Yoshiho Hirozawa to Questions of Senator Alexander, 
Senator Enzi, Senator Burr, Senator Isakson, Senator Hatch, and Senator 
                                 Scott
                           senator alexander
    Question 1a. At today's hearing you testified that you spent ``a 
great deal of time working on the NLRB's two regulatory efforts.'' In 
August 2011, the Board issued a new rule requiring employers to post a 
biased employee rights poster in the workplace. Two separate Federal 
courts have struck the rule down. In December 2011, the Board issued a 
new rule shortening the time in which a union election is held, 
otherwise known as the ``ambush'' or ``quickie'' elections rule. The 
D.C. Circuit struck down the rule on the grounds it lacked a quorum.
    What percentage of your time was devoted to these regulatory 
efforts?
    Answer 1a. I am not required to maintain the sort of detailed time 
records that would be necessary for me to accurately determine what 
percentage of my time was spent on work related to rulemaking. As a 
general matter, the clear majority of my work time was spent on other 
matters, primarily case adjudication.

    Question 1b. If confirmed, will you continue to pursue continued or 
new regulatory initiatives at the NLRB? Please describe the efforts you 
would support.
    Answer 1b. I support the Board's rulemaking authority, as reflected 
in Section 6 of the National Labor Relations Act. I believe that the 
Board should exercise that authority judiciously and consistent with 
all legal requirements. What, if any, further rulemaking the Board 
should undertake is an issue which, if confirmed, I would have to 
carefully consider with all of my colleagues on the Board and with the 
Board's professional staff.

    Question 1c. You also testified that there were lessons to be 
learned from the Board's experience with the two rulemakings. What 
specifically were those lessons you learned?
    Answer 1c. The lessons to be learned from recent rulemaking include 
the importance of seeking broad public participation in the process, 
which I believe that the Board successfully achieved by holding public 
hearings and by accepting public comments electronically, as well as 
the importance of carefully considering and addressing the public 
comments received, which I believe that the Board did.
    If I become a Board member, I would favor a discussion with all of 
my colleagues concerning the conclusions to be drawn from the 
litigation.

    Question 2. The Board has shown a specific interest in reversing 
prior precedent regarding whether graduate teaching assistants may 
organize. In 2004, the Board ruled in Brown University that graduate 
teaching and research assistants are students rather than employees. 
Last year, the Board took the first step in reversing Brown by saying 
they would review that decision. If the Board decides to reverse the 
2004 decision, this would be the third time in 12 years the Board has 
changed its policy in this area. Besides the practical effect a 
reversal has on universities, I think there could be a larger effect on 
the credibility of the Board in the eyes of the courts and the public.
    Do you think a reversal will have a detrimental effect on 
universities' academic relationships with their graduate students?
    Does another reversal undermine the concept of impartiality and 
instead shift to whoever makes up the current majority?
    What do you suggest the Board do to stop this negative trend of 
constant reversals?
    Answer 2. Because pending cases before the Board raise the issue 
addressed in Brown University, I do not believe it would be appropriate 
for me to address the potential effects of any particular outcome. I 
would approach those cases with an open mind, and, if confirmed, look 
forward to discussing them with my colleagues.
    As a historical matter, reversals of precedent by the Board are 
relatively rare. In the great majority of cases, the Board follows 
prior precedent. I believe that norm should continue.

    Question 3a. In August 2011, the Board issued the Specialty 
Healthcare decision, which dramatically lowered the standard used to 
determine the size and scope of a bargaining unit. This decision allows 
unions to essentially gerrymander a bargaining unit among its 
supporters at a worksite. The result will be to further fracture 
employees' relationships with the employer, and their fellow employees. 
A key component of every secret ballot election, including our own as 
Senators, is that the majority rules.
    Does the decision in Specialty Healthcare preserve the notion of 
``majority rule'' in determining whether employees want to join a 
union?
    Answer 3a. Yes. Most Board elections are conducted in the units 
agreed to by the parties. Where the parties are unable to reach 
agreement, the appropriate unit is determined by the Board or a Board 
regional director. The Union is certified only upon winning a majority 
of the votes cast.

    Question 3b. Does Specialty Healthcare conflict with the 
congressional intent that the Board not rely on the extent of 
organizing when determining the appropriate bargaining unit?
    Answer 3b. Because the Board's obligation is to choose an 
appropriate unit, not the most appropriate unit, it has always begun 
the appropriate unit inquiry in a particular case by considering the 
petitioned-for unit. That practice is not in conflict with Section 
9(c)(5) of the National Labor Relations Act.

    Question 4a. On several occasions over the last few years, the 
Board has taken a case which presents a narrow question of law and used 
it as a platform to overrule precedent and institute major changes to 
our understanding of labor law. The Specialty Healthcare decision is 
one example of this trend.
    Do you think it is appropriate for the Board to reach out and 
decide issues and address arguments not raised by the parties?
    Answer 4a. As a general rule, it is preferable for the Board not to 
reach out and decide issues not raised by the parties, unless required 
to do so. With respect, I do not believe that the Board did so in 
Specialty Healthcare.

    Question 4b. If so, are you concerned that this practice violates 
the parties' due process rights? Please explain.
    Answer 4b. Concerns about the parties' due process rights are one 
reason why it is generally not advisable for the Board to reach out and 
decide issues not raised by the parties.

    Question 4c. During the hearing, you claimed that Specialty 
Healthcare, which overruled decades of precedent, is the law and that 
the Board should respect it as precedent. Don't you think the Board in 
Specialty Healthcare should have respected the previous decades of 
precedent instead of significantly changing the law?
    Answer 4c. In deciding Specialty Healthcare, the Board expressly 
adopted the standard enunciated by the U.S. Court of Appeals for the 
District of Columbia Circuit in Blue Man Vegas, LLC v. NLRB, 529 F.3d 
417, 421-23 (2008), a case that raised the same issue in a non-
healthcare context. That standard was already in use in cases not 
involving non-acute healthcare facilities, and in Specialty Healthcare, 
the Board explained that it had simply ``return[ed] to the application 
of [its] traditional community of interest approach'' in that one set 
of cases. My ethical obligation to maintain confidentiality concerning 
advice I gave to then-Member Pearce at the time the Board was 
considering Specialty Healthcare prohibits me from commenting further 
on the decision. That obligation is discussed in more detail below in 
my response to question 6.

    Question 5a. Several of the Board's recent decisions overruling 
decades of precedent were not applied to the parties before it. Rather, 
the Board decided to apply the new rules only prospectively.
    In your view, does this approach violate the Administrative 
Procedure Act inasmuch as the Board has effectively promulgated rules 
not used to adjudicate the cases before it without following the APA's 
notice and comment procedures?
    Answer 5a. Where the Board has determined to apply a new legal 
rule, established in a case adjudication, only prospectively, it has 
followed longstanding Board precedent on the issue of retroactivity. I 
am not presently aware of any judicial decision concluding that the 
Board's precedent was contrary to the Administrative Procedure Act.

    Question 5b. If confirmed, would you work to end this practice of 
exclusive prospective application of Board precedents?
    Answer 5b. The Board does not have a ``practice of exclusive 
prospective application of Board precedents.''

    Question 6. You testified at the hearing that the current Board has 
made a tremendous effort to build consensus and collaboration Board 
decisions. You also spoke about the importance of having a diversity of 
viewpoints.
    Did you support the decision to finalize the Representation Case 
Procedures rule on December 22, 2011, without a written dissent by the 
minority member?
    If confirmed, what will you do to ensure that the minority members 
will be afforded the opportunity to voice their dissent when a decision 
or rule is issued?
    Answer 6. As I explained at the committee's July 23, 2013 hearing, 
I believe that it would be inappropriate for me to discuss my views 
with respect to Board actions or decisions that Chairman Pearce joined 
during my tenure as his Chief Counsel.
    In my role as Chief Counsel, I provided legal advice to the 
Chairman concerning the rulemaking that is the subject of your question 
and I participated, as a staff member, in the Board's related 
deliberations. Discussing my views publicly would be inconsistent with 
the confidential professional relationship that I have had with the 
Chairman. It would also be contrary to the required confidentiality of 
the Board's deliberative process. Confidentiality is maintained to 
promote sound decisionmaking by ensuring the full and free discussion 
of legal issues.
    Section 18020 of the Guide for Staff Counsel of the National Labor 
Relations Board (Sept. 1994) provides that ``[s]taff counsel are 
confidential employees of the Board Member for whom they work'' and 
that staff counsel are generally prohibited from disclosing information 
about Board cases, whether before or after a case has been issued.
    In addition, such disclosures might in certain circumstances 
violate both the Standards of Ethical Conduct for Employees of the 
executive branch and the State ethical rules that apply to attorneys, 
such as Rule 1.6 of the New York Rules of Professional Conduct (2009).
    On March 19, 2012, the Board's Inspector General issued a Report of 
Investigation (OIG-I-468) with respect to public disclosures of 
deliberative information by a prior Chief Counsel, who served another 
Board Member. The Inspector General's report addresses the standards 
that govern this area, and I am guided by that report.
    I do believe that the representation of diverse viewpoints is very 
beneficial to the deliberative process. If I am confirmed to serve as a 
Board member, I will strive to allow and encourage all members 
participating in a case or rule to express their views both in 
deliberations and in written decisions, concurrences, or dissents.
                              senator enzi
Federal Labor Law on Tribal Lands
    Question 1. Wyoming is home to the Wind River Reservation where 
tribal governments and enterprises are recognized to have sovereignty 
over activities which take place on tribal lands. In a number of cases, 
the Supreme Court has recognized that Federal law does not infringe on 
this sovereignty unless Congress expressly says Federal law applies on 
tribal land. Do you believe that the National Labor Relations Act 
should override tribal employment codes?
    Answer 1. Under existing Board precedent, the National Labor 
Relations Act may effectively override tribal employment codes, 
depending on various factors. The leading Board decision in this area 
is San Manuel Indian Bingo & Casino, 341 NLRB 1055 (2004). The U.S. 
Court of Appeals for the District of Columbia Circuit affirmed the 
Board's decision, and the Board has followed it subsequently.

    Question 2. Do you believe Congress intended the National Labor 
Relations Act to apply to tribal businesses?
    Answer 2. The National Labor Relations Act does not contain an 
express exclusion for tribal businesses, in contrast to certain other 
entities identified in Section 2(2). In San Manuel Indian Bingo & 
Casino, cited above, the Board concluded that the Act could be applied 
to tribal businesses, depending on various factors.
Notice Posting Rulemaking

    Question 3. The NLRB's 2011 rulemaking that requires employers to 
post a notice of only certain employee rights was invalidated recently 
by two Federal courts. This notice rule emphasizes posters advertising 
an employee's right to unionize and collectively bargain but does not 
include information about the right for employees to object to the use 
of their union dues and fees to go toward political purposes. Do you 
defend the NLRB using a rulemaking to cherry pick what it requires 
employers to post when at least one study suggests 67 percent of 
workers are unaware of their right under the NLRA to withhold mandatory 
union fees for political purposes?
    Answer 3. In its preamble to the final rule, published in the 
Federal Register, the Board addressed the issue that you raise. 76 Fed. 
Reg. 54023 (Aug. 30, 2011). The Board observed that the rights to which 
you refer (known as Beck rights)

          ``apply only to employees who are represented by unions under 
        collective bargaining agreements containing union-security 
        provisions'' and that ``unions that seek to obligate employees 
        to pay dues and fees under those provisions are required to 
        inform those employees of their Beck rights'' under existing 
        Board precedent.

    The Board also stated that it:

          ``was presented with no evidence during this rulemaking that 
        suggests that unions are not generally complying with their 
        notice obligations.''

    In sum, the Board concluded that:

          ``because Beck does not apply to the overwhelming majority of 
        employees in today's private sector workplace, and because 
        unions already are obliged to inform the employees to whom it 
        does apply of their Beck rights, the Board is not including 
        Beck notification in the final notice.''
                              senator burr
    Question 1. If you are ever served with a congressional subpoena, 
will you commit to complying with said subpoena to the satisfaction of 
the issuing authority?
    Answer 1. I will make every effort to comply with a congressional 
subpoena.

    Question 2. In your experience as a lawyer, how frequently do you 
see an agent of a party in ongoing disputes be made a judge in such 
disputes?
    Answer 2. It would be highly unusual for an agent of a party in 
ongoing litigation to be made a judge in that case. I don't believe I 
have ever seen such a case. In addition, the ethical rules applicable 
to judges require a judge to recuse him or herself from adjudicating a 
case based on certain prior or ongoing relationships with a party to 
the case.
    I take my ethical obligations very seriously. This includes any 
obligation that I might have to recuse myself from a specific case. If 
any case or issue brought before me raised a question about my ethical 
obligations, I would consult with the Designated Agency Ethics Official 
(DAEO) at the National Labor Relations Board, and, if advisable with 
the Office of Government Ethics (OGE). It is my understanding that if I 
am confirmed to the Board, before I am sworn in, I will be fully 
briefed on all applicable ethical guidelines. I pledge that I will 
fully comply with all of them.

    Question 3. Chairman Harkin said, based on his reading of an 
introductory portion of the NLRA that the job of the NLRB is to 
encourage collective bargaining. Do you share his belief or do you 
believe a more complete reading of the law says that the NLRB should be 
a fair arbiter between the parties in dispute and should protect the 
rights of employees to either choose or reject unions?
    Answer 3. The National Labor Relations Act states very clearly that 
the policy of the United States is to promote the free flow of commerce 
by encouraging collective bargaining. The NLRB's statutory duty is to 
implement and enforce the Act consistent with that policy. The NLRB is 
charged with protecting all the rights that employees, unions, and 
employers have under the law, including the right of employees to 
choose whether or not to be represented by a union. The NLRB is 
designed to be a neutral arbiter of disputes that arise under the Act.

    Question 4. Do you believe employers should have a right to legal 
counsel regarding unionization matters?
    Answer 4. The National Labor Relations Act does not require parties 
coming before the NLRB to retain counsel, but any party who wishes to 
be represented by counsel in such matters is of course welcome to be so 
represented.

    Question 5. Could you provide three instances in your career where 
you have taken a stance in opposition to a union?
    Answer 5. Local 32B-32J, Service Employees International Union, 
AFL-CIO (Pritchard Services, Inc.), Case No. 2-CB-1513 (charge filed, 
complaint issued, hearing held 1986). The charge was filed by an 
individual employee against the union alleging that the union had 
caused the employer to discriminate against her with respect to bumping 
rights for reasons other than failure to tender periodic dues and 
initiation fees. As a Board attorney, I investigated the charge, the 
regional director issued a complaint against the union, and I litigated 
the Board General Counsel's case against the union in a hearing before 
an administrative law judge and filed a post-hearing brief urging that 
the judge find a violation by the union.
    Regional Import & Export Trucking Co. and Truck Drivers Local No. 
807 a/w International Brotherhood of Teamsters, 318 NLRB 816 (1995), 
323 NLRB 1206 (1997). I litigated the compliance stage of this case on 
behalf of a group of truck drivers and warehouse workers against a 
trucking company and a local union. The two respondents were held 
jointly and severally liable for back pay and interest totaling over $1 
million.
    Rabbitt v. Gallo, No. 01-CV-7583 (NG) (E.D.N.Y. 2001). I filed a 
lawsuit in Federal district court against a union on behalf of several 
members, seeking an injunction requiring the union to place on the 
ballot a candidate for union office who had been ruled ineligible to 
run.

    Question 6. Public-sector/public safety employees can be prohibited 
from volunteering due to employment contracts. The AFL-CIO has 
supported these clauses. Do you believe that such clauses are ever 
appropriate regardless of whether or not an organization is governed by 
the National Labor Relations Act?
    Answer 6. To the best of my understanding, the National Labor 
Relations Act does not address the issue that you raise, nor am I 
familiar enough with the issue to have formed an opinion.

    Question 7. Do you believe threats of physical violence by pro-
union supporters is ever acceptable? Do you consider such behavior to 
be coercive and an unfair labor practice?
    Answer 7. Under existing case law under the National Labor 
Relations Act, threats of physical violence by pro-union supporters may 
be, depending on the circumstances (including the identity of the 
persons making threats and the credibility of the threats), 
objectionable conduct requiring a representation election to be set 
aside and may also be an unfair labor practice. I believe that such 
behavior can be coercive and an unfair labor practice.

    Question 8. Do you envision a scenario in which you would support 
an effort by employees to preserve an open shop?
    Answer 8. As a Board Member, my responsibility would be to 
neutrally adjudicate any case that presented the issue you raise, based 
on the record evidence and applicable law.
                            senator isakson
    Question 1. In your opinion, do you agree with the Board's decision 
to apply a decision concerning an acute nursing facility to all manner 
of industries, including those having nothing to do with medical or 
health care? For example, Bergdorf Goodman's in New York City as well 
as a Macy's outside of Boston are both facing serious fragmentations of 
their workforce because of the application of the Specialty Healthcare 
decision.
    Answer 1. Governing law in Board representation proceedings 
typically applies across industry lines. The question addressed in 
Specialty Healthcare--how to determine an appropriate unit where one 
party contends that the unit sought by another party must include 
additional employees--was not specific to health care. Moreover, the 
standard the Board adopted in Specialty Healthcare was enunciated by 
the U.S. Court of Appeals for the District of Columbia Circuit in Blue 
Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-23 (2008), a case involving a 
unit of stage crew employees for a theatrical show performed in a 
casino hotel. Thus, the formulation adopted by the Board was one 
already in use outside the area of non-acute health facilities.

    Question 2. During the hearing, when you were asked why the NLRB 
overruled decades of precedent in Specialty Healthcare, you stated that 
due to attorney-client confidentiality, you could not speak as to 
Chairman Pearce's views or your personal views at the time the decision 
was issued. You also stated that you could not pre-judge future 
questions. But you acknowledged that a department store with 35 
different unions representing 35 different departments would be 
``disruptive'' to labor relations. As such, my question is not about 
the past or the future, but rather about the present and the experience 
of employers living under the Specialty Healthcare decision. What is 
your personal opinion (not Chairman Pearce's) of the Specialty 
Healthcare decision at present (not when the decision was issued) in 
light of the reported fragmentation of bargaining units in several 
department stores, including Macy's and Bergdorf Goodman?
    Answer 2. As I stated in my testimony at the July 23, 2013 hearing, 
my personal opinion of the Board's decision in Specialty Healthcare is, 
in a sense, a moot point: Specialty Healthcare is now Board law. (It is 
also the law of the U.S. Court of Appeals for the District of Columbia 
Circuit. In Specialty Healthcare, the Board expressly adopted the D.C. 
Circuit's standard enunciated in Blue Man Vegas, LLC v. NLRB, 529 F.3d 
417, 421-23 (2008), a case that raised the same issue in a non-
healthcare context.) I am therefore obligated to treat it as I would 
any prior Board precedent.
    Macy's and Bergdorf Goodman are two cases currently pending before 
the Board. In each case, the employer and the union disagree over the 
appropriateness of the petitioned-for bargaining unit. It is the 
Board's obligation to determine whether the petitioned-for units are 
fragmented, that is, whether they would be appropriate without the 
inclusion of other employees. With respect, I do not believe that I can 
address those issues here consistent with my ethical obligations to 
maintain confidentiality regarding internal deliberations in pending 
cases.

    Question 3. There seems to be a very consistent theme of the 
Board's recent history. When you look at the so-called ``ambush'' 
election rulemaking, the courts overturned the decision based on the 
fact that there wasn't a sufficient quorum. In the poster rule, we now 
have three courts, one in South Carolina and two in DC, which have 
deemed the ruling invalid. Specialty Healthcare is another case 
decision that is under review by the courts; and these are just naming 
a few. I am very concerned that the ``independent'' NLRB has become one 
that has had to be kept in check by the judicial branch. How can you 
assure to us that you will work in the spirit of impartiality that is 
supposed to be at the core of the Board's mission?
    Answer 3. As I stated in my testimony before the committee, if 
confirmed, I pledge to dedicate myself to the fair and even-handed 
enforcement of the commands of the National Labor Relations Act, 
consistent with the Act's purpose of maintaining industrial peace. I 
would carry out my duties fairly and impartially and enforce the Act 
without bias or agenda.
                             senator hatch
    Question. As a result of the D.C. Circuit's decision in Noel 
Canning, a number of the Board's past decisions will likely be up for 
reconsideration. As Chief Counsel to NLRB Chairman Pearce, you likely 
wrote many of the decisions that will likely be reconsidered by the 
Board.
    Given your close connection to these decisions, how can we believe 
that you will give these decisions a fair and independent review if you 
are confirmed?
    Answer. If confirmed, I would take my role as a neutral adjudicator 
of the law very seriously. I pledge to carry out my duties as a Board 
member fairly, impartially, and in strict accordance with the law.
    It has been my privilege to serve as Chairman Pearce's chief 
counsel at the Board for the past few years. I will use that 
experience, along with my experience as a field attorney in the 
Manhattan regional office of the National Labor Relations Board, and my 
20 years of experience working with labor law issues in the private 
sector to inform my decisions as a Board member. I fully understand, 
however, that my role as a Board member would be to exercise 
independent judgment as a neutral adjudicator. I would evaluate each 
case with an open mind.
                             senator scott
    Question 1a. In your testimony, you vowed to dedicate yourself ``to 
the fair and even-handed enforcement of the commands of the Act, 
consistent with the Act's purpose of maintaining industrial peace.'' 
However, the Board has pursued rulemakings that represent a gross 
overreach of the NLRB's statutory authority under the NLRA. The 
``Notice Posting Rule'' issued in 2011 was struck down by the U.S. 
Court of Appeals for the Fourth Circuit for this very reason. The Court 
held that the Board ``exceeded its authority in promulgating the 
challenged rule'' and that the NLRA

          ``only empowers the Board to carry out its statutorily 
        defined reactive roles in addressing unfair labor practice 
        charges and conducting representation elections upon request.''

    Given that support of the ``Notice Posting Rule'' would contradict 
a commitment to work within the bounds of the Act in an impartial and 
reactive manner, as a Board member will you support the rulemaking 
going forward?
    Answer 1a. The ``Notice Posting Rule'' remains the subject of 
ongoing litigation. The issue of how the Board should proceed with 
respect to the rule is a pending issue that must be deliberated and 
decided by the full Board. If confirmed, I would give the issue careful 
consideration, in consultation with my fellow Board members and the 
Board's professional staff.

    Question 1b. Do you think the Board has used its resources 
efficiently by pursuing unprecedented rulemakings that have been 
repeatedly challenged and struck down in Federal courts?
    Answer 1b. Rulemaking by the Board is not unprecedented. The Board 
has issued procedural rules on dozens of occasions. It has also issued 
a significant rule, the Health Care Rule, that was challenged in the 
Federal courts, but ultimately upheld by the Supreme Court. The 
litigation involving recent Board rules remains ongoing. I believe that 
rulemaking is an appropriate exercise of the Board's statutory 
authority and that the Board has used its resources efficiently in this 
area.

    Question 1c. You indicated in your nomination hearing that 
following the aftermath of the litigation surrounding these 
rulemakings, ``there are lessons to be learned for a new Board.'' 
Please elaborate further on what those lessons are in your opinion and 
how you will incorporate them as a Board member.
    Answer 1c. The lessons to be learned from recent rulemaking include 
the importance of seeking broad public participation in the process, 
which I believe that the Board successfully achieved by holding public 
hearings and by accepting public comments electronically, as well as 
the importance of carefully considering and addressing the public 
comments received, which I believe that the Board did.
    If I become a Board member, I would favor a discussion with all of 
my colleagues concerning the conclusions to be drawn from the 
litigation.

    Question 2a. The Board under this Administration has not acted as a 
neutral arbiter and has pursued numerous decisions that upend decades 
of precedent. You have indicated on multiple occasions that precedent 
is imperative for stability and should only be overturned in the rarest 
of circumstances.
    Please identify which of the below Board decisions meet that rare 
instance in which you believe precedent should be overturned:

     WKYC-TV, Gannet Co., Inc. (08-CA-039190)
     Alan Ritchey, Inc. (32-CA-018149)
     IronTiger Logistics, Inc. (16-CA-027543)
     Piedmont Gardens (32-CA-063475)
     United Nurses & Allied Professionals (Kent Hospital) (01-
CB-011135)
     Hispanics United of Buffalo (03-CA-027872)
     Karl Knauz BMW (13-CA-046452)
     Dish Network (16-CA-062433A)
     Fresenius USA Manufacturing (02-CA-039518)

    Answer 2a. With respect, I do not share your view that the Board 
has ``not acted as a neutral arbiter.'' I do believe that reversals of 
precedent should remain relatively rare and should always reflect 
careful consideration. Examples of cases in which the Board may well be 
justified in reversing precedent are where 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.
    Of the decisions cited above, IronTiger Logistics, United Nurses 
and Allied Professionals (Kent Hospital), Hispanics United of Buffalo, 
Karl Knauz BMW, Dish Network, and Fresenius USA Manufacturing, did not 
overturn precedent. WKYC-TV overturned a decision issued in 1962, whose 
rationale (or lack thereof) had been rejected repeatedly by the U.S. 
Court of Appeals for the Ninth Circuit over more than a decade. Alan 
Ritchey, Inc. overturned a 2002 decision, which lacked rationale. 
Piedmont Gardens overturned a 1978 decision that had created an 
automatic exemption from disclosure for witness statements, rather than 
apply the interest-
balancing test governing union information requests articulated by the 
Supreme Court in Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979).

    Question 2b. In your nomination hearing, you agreed that micro-
unions would make labor relations much more complicated. Can you please 
describe what you believe is an appropriate bargaining unit?
    Answer 2b. Section 9(a) of the National Labor Relations Act begins 
as follows:

          ``Representatives designated or selected for the purposes of 
        collective bargaining by the majority of the employees in a 
        unit appropriate for bargaining for such purposes, shall be the 
        exclusive representatives of all the employees in such unit for 
        the purposes of collective bargaining in respect to rates of 
        pay, wages, hours of employment, or other conditions of 
        employment . . .''

    Section 9(b) begins as follows:

          ``The Board shall decide in each case whether, in order to 
        assure to employees the fullest freedom in exercising the 
        rights guaranteed by this Act, the unit appropriate for the 
        purposes of collective bargaining shall be the employer unit, 
        craft unit, plant unit, or subdivision thereof . . .''

    Since the passage of the Act, the Board and the Federal courts have 
developed an extensive and detailed body of law interpreting those 
provisions to determine what constitutes an appropriate unit for 
bargaining. That body of law is best summed up by the term ``community 
of interest.'' Employees have a community of interest, such that they 
constitute an appropriate unit for bargaining, if they have substantial 
mutual interests in wages, hours, or other conditions of employment.

    Question 3. Do you agree with the Board's decision in Specialty 
Healthcare? Please answer yes or no.
    Answer 3. With respect, I do not believe that I can answer that 
question consistent with my ethical obligations to maintain 
confidentiality regarding advice I gave to then-Member Pearce at the 
time the Board was considering Specialty Healthcare. In addition, and 
as I believe I stated at my confirmation hearing, whether I agree with 
the Board's decision in Specialty Healthcare is, in a sense, a moot 
point: Specialty Healthcare is now Board law. (It is also the law of 
the U.S. Court of Appeals for the District of Columbia Circuit. In 
Specialty Healthcare, the Board expressly adopted the D.C. Circuit's 
standard enunciated in Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-
23 (2008), a case that raised the same issue in a non-healthcare 
context.) I am therefore obligated to treat it as I would any prior 
Board precedent.
  Response by Nancy Jean Schiffer to Questions of Senator Alexander, 
Senator Enzi, Senator Burr, Senator Isakson, Senator Hatch, and Senator 
                                 Scott
                           senator alexander
    Question 1a. In 2007, while you were employed as asociate general 
counsel with the AFL-CIO, your employer hosted a rally and march to 
``close the NLRB.'' AFL-CIO national organizing director Stewart Acuff 
said, ``the Labor Board should be closed for renovations until a new 
governing board could be appointed by a new President,'' and the AFL-
CIO Director of the Voice at Work Campaign said, ``It's time to shut 
the board down and close it for renovation.'' Please answer each 
question.
    As a senior AFL-CIO official at the time, did you agree that the 
NLRB should be shut down because Republicans were in the majority?
    Answer 1a. In 2007, I was working as Associate General Counsel for 
the AFL-CIO and my role was to advocate for the union and its 
positions. I recognized then and continue to recognize the vital role 
the National Labor Relations Board plays in enforcing the rights of 
employers, unions and employees. Further, I am fully aware of the 
differences between working as an adjudicator and an advocate. If 
confirmed, I would take my role as a neutral adjudicator of the law 
very seriously.

    Question 1b. Do you believe now or did you believe then that it is 
the role of the NLRB to reward particular special interests?
    Answer 1b. No, I do not believe it is the role of the NLRB to 
reward special interests.

    Question 1c. In fact, the NLRB did dwindle to two Board members at 
the end of 2007 and the Senate did not confirm any new members until 
June 2010. The Supreme Court ruled that the Board did not have a quorum 
to issue valid decisions during that time. Was this the outcome the 
AFL-CIO sought?
    Answer 1c. No, it was not the outcome the AFL-CIO sought. When the 
Supreme Court issued its decision in New Process Steel, the AFL-CIO 
issued a statement expressing disappointment. I believe in the Act and 
in the mission of the Agency. I believe that a fully functioning Board 
of five confirmed Members is in the best interests of the Act and its 
mission. I do not believe that the National Labor Relations Board 
should be shut down or reward special interests. I do not believe the 
decision of the Supreme Court referenced in your question was 
anticipated.

    Question 2a. At today's hearing, you said that you believe in the 
National Labor Relations Act and hope to be viewed as ``pro-Act.'' But 
in recent past statements, it is clear that you had very strong 
negative feelings about the ability of the NLRB to carry out its 
mission, particularly in the conduct of secret ballot elections. You've 
said, ``The union election process is broken, NLRB elections are 
conducted in an inherently coercive environment--the workplace,'' and 
called it ``the delay-ridden, divisive, coercive representation 
election process.''
    Yet, unions have won 63 percent of all secret ballot elections over 
the last 5 years, reaching historic highs. In fiscal year 2012, 93.9 
percent of all initial union elections were held within 56 days of the 
petition's filing, and in each of the past 3 years (fiscal year 2010-
2012), the median time period between petition filing and union 
election has been 38 days, a timeframe which Acting General Counsel 
Lafe Solomon touted as ``well below our target median of 42 days.''
    Have you changed your views?
    Answer 2a. I testified as an advocate representing the positions of 
the AFL-CIO. I fully understand the differences in the role of an 
advocate and a neutral arbiter of the law. In testimony I gave in 2004, 
I referenced a specific case in which an election was conducted soon 
after a petition for representation was filed and in which 
approximately 500 workers chose union representation by an almost 100 
vote margin. Yet those workers were not able to be represented or 
engage in collective bargaining for 6\1/2\ years because of post-
election litigation brought by the employer. That case was recounted in 
my testimony for the purpose of illustrating that, in that case, 
conducting an election within the Board's targeted median timeframe 
that resulted in the selection of union representation did not insure 
that the election process was not fraught with delays. Whether the 
election process is fair depends on the circumstances in which the 
process is conducted.

    Question 2b. If you still believe the secret ballot election 
process is broken, do you have plans to try to make changes to the 
ballet election process if confirmed as a Board member?
    Answer 2b. If I am confirmed as a member of the National Labor 
Relations Board, I will apply the law impartially to all parties that 
come before the Board and make sure that cases are decided in a fair 
and expeditious manner. I have no preconceived agenda. If confirmed, I 
will consider each issue before the Board with an open mind and make my 
decision based on the facts of the particular case and in consultation 
with my colleagues and career Board staff and with due consideration to 
the positions of the parties and the facts of the case.

    Question 3. You have an extensive history with cases and parties 
that will be coming before the NLRB during your tenure, if you are 
confirmed.
    Will you recuse yourself from all cases involving your former 
employer, the AFL-CIO, and their affiliate unions? Please explain in 
detail your answer.
    Answer 3. I take my ethical obligations very seriously. This 
includes any obligation that I may have to recuse myself from a 
specific case. I will fully comply with the ethics agreement I have 
entered into with the NLRB and with the standards of recusal applicable 
to executive branch officials set forth in 5 CFR 2635 and in Executive 
Order No. 13490. If any case brought before me raises a question about 
my ethical obligations, I would consult with the Designated Agency 
Ethics Official (DAEO) at the National Labor Relations Board. It is my 
understanding that if I am confirmed to the Board, before I am sworn 
in, I will be fully briefed on all applicable ethical guidelines. I 
pledge that I will make every effort to fully comply with all of them.

    Question 4. The National Labor Relations Act states that employees 
have the right to organize a union and bargain with their employer, and 
they ``also have the right to refrain from any or all such 
activities,'' except that they can be forced to pay dues in order to 
work at a unionized employer in non-Right-to-Work States.
    Do you agree that all employees should have a right to refrain from 
joining or assisting a labor organization?
    Answer 4. Section 7 of the National Labor Relations Board provides 
that

          ``[e]mployees shall have the right to self-organization, to 
        form, join, or assist labor organizations, to bargain 
        collectively through representatives of their own choosing, and 
        to engage in other concerted activities for the purpose of 
        collective bargaining or other mutual aid or protection, and 
        shall also have the right to refrain from any and all of such 
        activities except to the extent that such right may be affected 
        by an agreement requiring membership in a labor organization as 
        a condition of employment as authorized in section 8(a)(3).''

    If confirmed as a Member of the National Labor Relations Board, I 
will enforce these rights.

    Question 5a. In August 2011, the Board issued the Specialty 
Healthcare decision, which dramatically lowered the standard used to 
determine the size and scope of a bargaining unit. This decision allows 
unions to essentially gerrymander a bargaining unit among its 
supporters at a worksite. The result will be to further fracture 
employees' relationships with the employer, and their fellow employees. 
A key component of every secret ballot election, including our own as 
Senators, is that the majority rules.
    Does the decision in Specialty Healthcare preserve the notion of 
``majority rule'' in determining whether employees want to join a 
union?
    Answer 5a. The decision in Specialty Healthcare preserves majority 
rule as, a majority of employees must select or designate the union in 
order to have union representation. It is my understanding that 
Specialty Healthcare adopted a single description for the standard to 
be applied in cases where an employer challenges a proposed bargaining 
unit on the particular ground that other employees share such a strong 
community of interest that they must be included as well, and that the 
description adopted there was taken from a D.C. Circuit opinion by 
Judge Douglas Ginsberg, who explained its basis in prior NLRB 
decisions. If I am confirmed as a member of the National Labor 
Relations Board, I will consider any such positions and arguments 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.

    Question 5b. Does Specialty Healthcare conflict with the 
congressional intent that the Board not rely on the extent of 
organizing when determining the appropriate bargaining unit?
    Answer 5b. No. The decision in Specialty Healthcare does not give 
any more weight to the extent of organizing than prior decisions and 
does not conflict with congressional intent.
                              senator enzi
Federal Labor Law on Tribal Land
    Question 1. Wyoming is home to the Wind River Reservation where 
tribal governments and enterprises are recognized to have sovereignty 
over activities which take place on tribal lands. In a number of cases, 
the Supreme Court has recognized that Federal law does not infringe on 
this sovereignty unless Congress expressly says Federal law applies on 
tribal land. Do you believe that the National Labor Relations Act 
should override tribal employment codes?
    Answer 1. I do not have a view on this question. If I am confirmed, 
I will approach the issue with an open mind, taking into consideration 
the views of my colleagues, the professional staff of the Agency, and 
the parties that would be affected, and the specific facts of the case 
at issue.

    Question 2. Do you believe Congress intended the National Labor 
Relations Act to apply to tribal businesses?
    Answer 2. The National Labor Relations Act does not contain an 
express exclusion for tribal businesses, in contrast to certain other 
entities identified in Section 2(2) of the Act. In San Manuel Indian 
Bingo & Casino, the Board concluded that the Act could be applied to 
certain tribal businesses.
Congressional Oversight

    Question 3. In a 2012 presentation before the American Bar 
Association you authored a paper in your capacity as Associate General 
Counsel of the AFL-CIO suggesting that congressional oversight of the 
National Labor Relations Board (NLRB) was ``over the top.'' 
Specifically, you noted that ``information requests were rampant'' and 
identified specific bills introduced in the House and Senate which you 
consider as attacks on the NLRB.
    Is it your opinion that Congress does not have an institutional 
prerogative to conduct oversight over Federal agency activities?
    Additionally, is it your opinion that Congress cannot consider 
legislation amending organic statutes including those which created the 
NLRB?
    Answer 3. The Constitution grants Congress the authority to conduct 
oversight over Federal agency activities and to amend statutes 
including the NLRA. My presentation did not state otherwise. I believe 
Congress has the right to consider such matters.
                              senator burr
    Question 1. If you are ever served with a congressional subpoena, 
will you commit to complying with said subpoena to the satisfaction of 
the issuing authority?
    Answer 1. I will make every effort to comply with any congressional 
subpoena.

    Question 2. Your public financial disclosure form lists pensions 
with AFL-CIO and UAW that provide you with monthly financial benefits. 
Do you plan to recuse yourself from all rulemakings and other matters 
that would have a direct financial impact on the AFL-CIO and UAW?
    Answer 2. I take my ethical obligations very seriously. This 
includes any obligation that I may have to recuse myself from a 
specific case. I will fully comply with the ethics agreement I have 
entered into with the NLRB and with the standards of recusal applicable 
to executive branch officials set forth in 5 CFR 2635 and in Executive 
Order No. 13490. If any particular matter brought before me raises a 
question about my ethical obligations, I would consult with the 
Designated Agency Ethics Official (DAEO) at the National Labor 
Relations Board. It is my understanding that if I am confirmed to the 
Board, before I am sworn in, I will be fully briefed on all applicable 
ethical guidelines. I pledge that I will make every effort to fully 
comply with all of them.
    I am receiving retirement benefits from the International Union, 
UAW and the AFL-CIO. Because I will continue to participate in these 
defined benefit plans, I will not participate personally and 
substantially in any particular matter that will have a direct and 
predictable effect on the ability or willingness of either entity to 
provide me with this contractual benefit, unless I first obtain a 
written waiver under 18 U.S.C.  208(b)(1), or qualify for a regulatory 
exemption under 18 U.S.C.  208(b)(2).

    Question 3. What is your justification for your statement that the 
AFL-CIO is seldom before the Board? The record is replete with 
organizations under the authority of the AFL-CIO coming before the 
Board. The NLRB's Web site's Case Search engine calls up over 100 pages 
of results listing specific parties identifying themselves as AFL-CIO 
organizations.
    Answer 3. Various unions that come before the Board are affiliated 
with the AFL-CIO, but that does not make the AFL-CIO a party to a case. 
Likewise, the Chamber of Commerce does not become a party by virtue of 
one of its members coming before the Board.
    The reason a search of the NLRB's Web site finds cases listing the 
AFL-CIO is that affiliated unions and their locals include the name of 
the AFL-CIO to indicate the affiliation of their national union. There 
is a well-established body of law, including decades-old Supreme Court 
precedent, that the voluntary unincorporated association which is the 
AFL-CIO and those national unions which are its affiliates constitute 
legally separate and distinct entities.

    Question 4. In your experience as a lawyer, how frequently do you 
see an agent of a party in ongoing disputes be made a judge in such 
disputes?
    Answer 4. I have not, in my own experience as a lawyer, frequently 
seen a representative of a party in a particular case be called upon to 
adjudicate the particular case in which s/he represented one of the 
parties.
    However, I have seen multiple situations where advocates become 
adjudicators. For example, many NLRB Board Members have come from 
private practice where they represented employers and the Chamber of 
Commerce. I do not anticipate that any of my fellow nominees will be 
biased or unduly influenced by their experiences working for 
management-side law firms representing employers and the Chamber of 
Commerce, or that Chairman Pearce would be biased based on his prior 
work history, my work experience will not inhibit me from being a 
neutral arbiter of the law.

    Question 5. Chairman Harkin said, based on his reading of an 
introductory portion of the NLRA that the job of the NLRB is to 
encourage collective bargaining. Do you share his belief or do you 
believe a more complete reading of the law says that the NLRB should be 
a fair arbitrator between the parties in dispute and should protect the 
rights of employees to either choose or reject unions?
    Answer 5. I agree with both articulations and do not think they are 
inherently in conflict. Chairman Harkin correctly quoted from the 
preamble to the Act; and the Act, in section 7, protects, inter alia, 
the rights of employees to refrain from engaging in activities 
articulated therein.

    Question 6. Do you believe employers should have a right to legal 
counsel regarding unionization matters?
    Answer 6. I believe that employers should be free to retain legal 
counsel to represent them if they so choose.

    Question 7. Could you provide three instances in your career where 
you have taken a stance in opposition to a union?
    Answer 7. While I was employed by the International Union, United 
Auto Workers and by the AFL-CIO, I occasionally represented both 
entities in their capacities as employers and advised them on internal 
grievance matters. During the course of such grievance procedures, I 
represented my client in positions taken in opposition to the labor 
unions.
    As a Field Attorney of Region 7 of the National Labor Relations 
Board, I brought picket line injunction cases against unions, I 
investigated unfair labor charges against unions, and I prosecuted at 
least one discharge case against a labor union.
    Also during my tenure with Region 7, I recall issuing a decision in 
an NLRB post-election objection case in which I dismissed objections to 
conduct affecting an election, which had been filed by a union.

    Question 8. You've stated that you recognize the difference between 
being an advocate and being an arbitrator. Could you name three policy 
positions you were required to speak for as an employee of the AFL-CIO 
which you do not currently hold?
    Answer 8. The fact that as an employee of the AFL-CIO I advocated 
specific policy positions does not mean that if I am confirmed as a 
member of the NLRB that I would not be a neutral arbiter of the law. 
Regarding specific policy positions for which I advocated as an 
employee of the AFL-CIO, the advocacy and advice I provided are subject 
to attorney-client privilege and I cannot elaborate on internal 
deliberations I engaged in with my client. If I am confirmed as a 
member of the National Labor Relations Board, I will approach cases 
with an open mind, carefully consider the specific facts and arguments 
presented, seek out the experience and expertise of career Board staff, 
engage in collegial and productive discussions with my colleagues on 
the Board to have the benefit of their experience and knowledge, and 
fairly consider the issues presented. I know the difference between 
advocating on behalf of my client, having personal viewpoints, and 
fairly applying the law. I am committed to doing the latter if I become 
a member of the National Labor Relations Board.

    Question 9. Public-sector/public safety employees can be prohibited 
from volunteering due to employment contracts. The AFL-CIO has 
supported these clauses. Do you believe that such clauses are ever 
appropriate regardless of whether or not an organization is governed by 
the National Labor Relations Act?
    Answer 9. The National Labor Relations Act does not apply to public 
sector/public safety employees and I do not believe that it speaks to 
this issue which would be governed by State law and the Fair Labor 
Standards Act.
    I am not familiar with this issue and do not believe I have ever 
taken a position relating to this issue.

    Question 10. Do you believe threats of physical violence by pro-
union supporters is ever acceptable? Do you consider such behavior to 
be coercive and an unfair labor practice?
    Answer 10. I believe that threats of violence are not acceptable 
and are coercive. Whether the threats constitute an unfair labor 
practice would depend on whether they were made on behalf of an 
employer or a union and on the objective in making the threat. The 
unfair labor practices set forth in the National Labor Relations Act 
apply to conduct by employers and unions. Threats by individuals are a 
matter for local law enforcement.

    Question 11. Do you envision a scenario in which you would support 
an effort by employees to preserve an open shop?
    Answer 11. I would neutrally enforce the National Labor Relations 
Act to protect employees engaged in protected activity without regard 
to their support for or opposition to union organizing or membership. I 
would approach any case that raised the issue presented in your 
question based on the facts of the case and the applicable law.
                            senator isakson
    Question 1. In 2007, while you were at the AFL-CIO, your 
organization called for the NLRB to be ``shut down'' until a Democratic 
president could appoint a Board more favorable to organized labor. 
Ironically, in the past year, the same organization whom you used to 
work for called on the Senate to ensure that NLRB was a fully 
functioning Board. Should the Board's existence merely be a matter of 
convenience to the agenda of organized labor?
    Answer 1. No. I believe in the Act and in the mission of the 
National Labor Relations Act and I do not think it should be shut down.

    Question 2. In January 2012, when the Senate was in a pro forma 
session, President Obama ``recess''-appointed Sharon Block and Richard 
Griffin to the NLRB. Since then, three Federal circuit courts have 
ruled that the President's recess appointments violated the 
Constitution and the Supreme Court is expected to hear arguments 
surrounding this issue in the near future. In your opinion, do you 
believe that the President acted responsibly and appropriately when he 
chose to appointment Ms. Block and Mr. Griffin during a pro forma 
session of the Senate?
    Answer 2. The question of the January 2012 recess appointments is 
currently pending before the Supreme Court. Only the Supreme Court can 
answer that question, and it is not within my purview.

    Question 3. In a case involving Bergdorff Goodman, the Board's 
regional director used Specialty Healthcare as the premise for allowing 
the Retail, Wholesale, Department Store Union to represent both full-
time and regular part-time women's shoes associates on the 2d floor and 
5th floor of the store. Wouldn't common sense dictate that creating 
various, small collective bargaining units within the same workplace 
lead to increased labor relations costs as well as hostility among 
employees regarding wages, benefits and pensions? How does that help an 
employer stay in business? How does that create jobs?
    Answer 3. The case involving Bergdorff Goodman is currently pending 
before the Board. I do not want to prejudge any case that may, if I am 
confirmed, come before the Board. I need the opportunity to review the 
record and consider the views of career Board staff, my colleagues, and 
the parties. I am aware of cases where employers have invoked Specialty 
Healthcare in support of their own positions regarding appropriate 
bargaining units, so it seems to depend on the specific facts of the 
case.

    Question 4. Do you believe that it is within the purview and 
Constitutional authority of the Congress of the United States to hold 
hearings, conduct investigations and deliberate matters in the interest 
of transparency and accountability?
    If no, then please explain. If yes, then please explain why at the 
2012 American Bar Association Midwinter Meeting you characterized 
recent efforts by the Congress to conduct its responsibility of 
providing oversight of the NLRB as an ``attack.''
    Answer 4. I believe in the right and obligation of Congress to 
engage in oversight. In my presentation, I listed certain rhetoric, 
some of which was directed personally at the Acting General Counsel and 
career staff and was not attributed to Members of Congress or linked to 
any congressional action which, in my opinion, constituted a personal 
attack and not a congressional inquiry.
                             senator hatch
    Question 1. In early 2012, you gave a presentation for the American 
Bar Association criticizing Congress's oversight of the NLRB. In that 
paper, you listed what you called the ``Top Ten Attacks on the National 
Labor Relations Board.'' Taking the top spot on your list were actions 
taken by Members of Congress to, among other things, ``create a 
construct to prevent the President from exercising his Constitutional 
power to make recess appointments.'' You wrote this less than 2 months 
after the President unlawfully appointed two nominees to the Board.
    It seems evident that you were implying that the President was 
justified in making these two appointments. That certainly would have 
been in line with statements made by other officials at the AFL-CIO, 
your former employer. But, I want to make sure your views are clear on 
the matter.
    In your view, did the ``construct'' created by Senate Republicans 
justify the President's decision to make those unconstitutional 
appointments?
    Answer 1. The question of the January 2012 recess appointments is 
currently pending before the Supreme Court. Only the Supreme Court can 
answer that question, and it is not within my purview.

    Question 2. In the same 2012 presentation, you argued that several 
pieces of legislation constituted ``attacks'' on the NLRB. Among 
others, your list included bills that would mandate secret ballot 
representation elections, create a national right to work, and exercise 
Congress's prerogatives under the Congressional Review Act to block 
administrative regulations.
    Is it still your opinion that these and other bills amending U.S. 
labor policy constitute unfair ``attacks'' on the NLRB?
    Answer 2. The Constitution grants Congress the authority to amend 
statutes including the National Labor Relations Act. My presentation 
did not state otherwise. I believe Congress has the right to amend 
statutes.
    In my presentation at the Midwinter meeting of the ABA Committee on 
Practice & Procedure before the National Labor Relations Board, I 
highlighted actions by Congress which sought to change, influence, and 
affect the National Labor Relations Act and the National Labor 
Relations Board, in connection with my role as an advocate on behalf of 
the AFL-CIO. The purpose of my presentation was to provide a thorough 
list of congressional actions relating to the National Labor Relations 
Board since the Agency is the subject matter of the ABA Committee on 
Practice & Procedure before the National Labor Relations Board and the 
primary practice area of its members, including management and union 
representatives as well as neutrals. I understand that such measures 
are within the legitimate authority of Congress and respect Congress' 
right to take such actions.

    Question 3a. One of the most high-profile actions taken by the 
Board in recent years was the decision by the Acting General Counsel to 
file a complaint against Boeing for building a new plant to perform new 
work in South Carolina, a right-to-work State.
    In your 2012 ABA presentation, you publicly criticized Members of 
Congress who took issue with the Boeing Complaint, saying that, with 
the complaint, ``Republicans had an issue they believed they could ride 
all the way to the 2012 elections.'' In addition, leaders at the AFL-
CIO, your former employer, cheered the Boeing Complaint and expressed a 
hope that similar complaints would be filed elsewhere.
    What are your personal legal views on the merits of the Boeing 
Complaint?
    Answer 3a. I was not privy to the deliberations that led to the 
issuance of the Boeing Complaint. It is the role of the General Counsel 
to make determinations regarding charges brought before him and to 
refer such cases for hearing and adjudication on the merits. The 
General Counsel's determination is not a final determination on the 
merits on the case. I have no view on the ultimate merits of the case. 
Since no hearing was ever completed in connection with the Boeing 
Complaint, there is no public record of testimony and documents; and no 
publicly available briefs were filed. It is my understanding that the 
matter was resolved to the satisfaction of the parties and that the 
complaint was therefore withdrawn.

    Question 3b. Is it still your opinion that congressional inquiries 
into the Acting General Counsel's decisionmaking process with regard to 
the Boeing Complaint constituted personal and unfair attacks?
    Answer 3b. I believe in the right and obligation of Congress to 
engage in oversight. In my ABA presentation, I also listed certain 
rhetoric, some of which was directed personally at the Acting General 
Counsel and career staff and was not attributed to Members of Congress 
or linked to any specific congressional action. If confirmed, I pledge 
to cooperate with congressional inquiries and oversight.

    Question 4a. In your 2012 ABA presentation, you also listed 10 
hearings in the House of Representatives in 2011 and 2012 examining the 
NLRB's actions and processes. These hearings were among the ``attacks'' 
on the NLRB discussed throughout your presentation.
    Is it still your opinion that these oversight hearings constituted 
unfair attacks on the Board?
    Answer 4a. The Constitution grants Congress the authority to 
conduct oversight over Federal agency activities. My presentation did 
not state otherwise. I believe Congress has the right to consider such 
matters. Again, if confirmed, I pledge to cooperate with congressional 
inquiries and oversight.

    Question 4b. In your view, is Congress entitled to hold hearings to 
examine activities by the NLRB that it finds questionable?
    Answer 4b. Congress is entitled to hold oversight hearings 
regarding the National Labor Relations Board.

    Question 5a. You have written and spoken very extensively in 
support of the so-called Employee Free Choice Act. Specifically, you've 
made a number of public statements praising the ``card check'' process 
for unionization and disparaging secret ballot votes in union 
representation elections.
    For example, in congressional testimony you gave in 2004, you said 
that,

          ``The NLRB representation process has become really a 
        confrontational mechanism that forces workers through this sort 
        of endurance process in order to be able to form a union,'' . . 
        . ``the process has become so gamed by employers as to create 
        delay.''

    In 2007, you testified before Congress that the NLRB election 
process

          ``has become perverted. It now acts as a sword which is used 
        by employers to frustrate employee freedom of choice and deny 
        them their right to collective bargaining.''

    You also said that the election process ``provides a virtually 
insurmountable series of practical, procedural, and legal obstacles.''
    With these and other statements, you seem to be describing a world 
that doesn't exist in our current reality. The truth is this: the 
average time between the filing of union petition and a representation 
election is 38 days. That hardly seems like a system fraught with undue 
delays. And, over the last 5 years, unions have been successful in 63 
percent of secret ballot representation elections. That hardly sounds 
like union supporters face insurmountable obstacles.
    Given these realities, what is the basis for your outspoken support 
of the Employee Free Choice Act?
    Answer 5a. I testified as an advocate representing the positions of 
the AFL-CIO. I fully understand the differences in the role of an 
advocate and a neutral arbiter of the law. In testimony I gave in 2004, 
I referenced a specific case in which an election was conducted soon 
after a petition for representation was filed and in which 
approximately 500 workers chose union representation by an almost 100-
vote margin. Yet those workers were not able to be represented or 
engage in collective bargaining for 6\1/2\ years because of post-
election litigation brought by the employer. That case was recounted in 
my testimony for the purpose of illustrating that, in that case, 
conducting an election within 38 days (i.e., within the 38 day 
statistic) that resulted in the selection of union representation 
(i.e., within the 63 percent statistic) did not insure that the 
election process was not fraught with delays.

    Question 5b. Is it still your opinion that the current NLRB 
election process is inherently unfair?
    Answer 5b. Whether the election process is fair depends on the 
circumstances in which the process is conducted.

    Question 5c. Can you cite anything beyond anecdotal evidence to 
support that opinion?
    Answer 5c. As discussed in my answer to question three, the 
specific case I discussed in my 2004 testimony provides an example of 
election certification delays.
    One of the key functions of the NLRB is to oversee the conduct of 
representation elections and to assure, so far as possible, that 
employees are able to make a free and un-coerced choice as to whether 
they want union representation. If I am confirmed as a member of the 
National Labor Relations Board, I will apply the law impartially to all 
parties that come before the Board and make sure that cases are decided 
in a fair and expeditious manner. I have no preconceived agenda to 
change the election process. If presented with such positions, I will 
consider them with an open mind and make my decision based on the facts 
of the particular case and in consultation with my colleagues and 
career Board staff and with due consideration to the positions of the 
parties and the facts of the case.
    Regarding the Employee Free Choice Act specifically, I believe that 
the changes it set forth could be achieved only through legislative 
action by Congress.

    Question 6. In 2009, you gave a presentation at the Tulane Law 
School Multistate Labor and Employment Law Seminar about the Employee 
Rights Act. In that presentation, you wrote that,

          ``those who decry the loss of secret ballots must recognize 
        that the democracy they advocate is the `democracy' of Saddam 
        Hussein--he had secret ballot elections, but no one thinks of 
        his regime as democratic.''

    Does this statement accurately reflect your current views of those 
who oppose ``card check'' union certifications and support secret 
ballot union representation elections?
    Answer 6. In my 2009 presentation at the Tulane Law School 
Multistate Labor and Employment Law Seminar about the Employee Rights 
Act, the purpose of the statement cited was to illustrate that just 
because an election process results in the use of secret ballots 
doesn't mean that the process is fair. Fairness depends on the facts, 
circumstances and procedures involved in the election process. When I 
was a Board agent at the NLRB's Detroit Regional Office, I conducted 
secret ballot elections in workplaces and was inspired by the 
demonstration of workplace democracy I had the opportunity to 
experience. But I also had experiences where the process was not fair, 
as determined after adjudication and a decision on the merits. What is 
essential is that voters be able to exercise their right to vote free 
from coercion, intimidation or other interference from either the 
employer or the union. This is true with respect to political 
elections, here and around the world, and it is also true with respect 
to the election process of the National Labor Relations Board.

    Question 7. As was discussed during the hearing, in the history of 
the NLRB, only two other members were appointed to the Board directly 
after working in-house for a labor union, but neither was confirmed by 
the Senate. If confirmed, you would be the first such member. As you 
may know, the first union lawyer appointed to the Board made numerous 
commitments to the committee to recuse himself in matters involving his 
former employer. Yet, during his time on the Board, he never fully 
recused himself.
    What standard will you use in determining whether to recuse 
yourself in matters before the Board that involve your former 
employers?
    Answer 7. I take my ethical obligations very seriously. This 
includes any obligation that I may have to recuse myself from a 
specific case. I will fully comply with the ethics agreement I have 
entered into with the NLRB and with the standards of recusal applicable 
to executive branch officials set forth in 5 CFR 2635 and in Executive 
Order No. 13490. If any case brought before me raised a question about 
my ethical obligations, I would consult with the Designated Agency 
Ethics Official (DAEO) at the National Labor Relations Board. It is my 
understanding that if I am confirmed to the Board, before I am sworn 
in, I will be fully briefed on all of the applicable ethical 
guidelines. Further, I pledge that I will make every effort to fully 
comply with all of them.
                             senator scott
    Question 1a. Ms. Schiffer, you asserted in 2010, ``We really need 
to streamline the election process and eliminate so much delay that is 
now built into the National Labor Relations Act process.''
    How can you feel this way, given that the median election time is 
38 days, which according to the Acting General Counsel's fiscal year 
2011 Summary of Operations is ``below [the] target median election time 
of 42 days?''
    Answer 1a. I testified and made statements about the election rule 
in my capacity as an advocate for the AFL-CIO. I fully understand the 
differences in the role of an advocate and a neutral arbiter of the 
law. In testimony I gave in 2004, I referenced a specific case in which 
an election was conducted soon after a petition for representation was 
filed and in which approximately 500 workers chose union representation 
by an almost 100-vote margin. Yet those workers were not able to be 
represented or engage in collective bargaining for 6\1/2\ years because 
of post-election litigation brought by the employer. That case was 
recounted in my testimony for the purpose of illustrating that, in that 
case, conducting an election within the Board's target median election 
timeframe that resulted in the selection of union representation did 
not insure that the election process was not fraught with delays. 
Whether the election process is fair depends on the circumstances in 
which the process is conducted.

    Question 1b. Can you please explain how decreasing this critical 
window down to as few as 10 days would not fundamentally chill the 
rights of employers to make their case and the rights of employees to 
make informed decisions?
    Answer 1b. As I understand it, the Board's proposed election rule 
does not set any minimum or maximum time in which an election must be 
held. This issue may come before the Board and therefore it is 
inappropriate for me to prejudge it. I have no preconceived agenda. If 
presented with such positions, I will consider them with an open mind 
and make my decision based on the facts of the particular case and in 
consultation with my colleagues and career Board staff and with due 
consideration to the positions of the parties and the facts of the 
case.

    Question 1c. How can you portray the election process as riddled 
with intimidation and lacking protections for workers seeking to 
organize when the facts suggest just the opposite?

     Unions won 66 percent of elections in 2009, up from a 51 
percent success rate in 1997.
     However, the NLRB only accepted 44 percent of employee 
petitions to hold decertification elections in fiscal year 2010, down 
from 54 percent in fiscal year 2007.

    Answer 1c. Again, in testimony I gave in 2004, I referenced a 
specific case in which an election was conducted soon after a petition 
for representation was filed and in which approximately 500 workers 
chose union representation by an almost 100 vote margin. Yet those 
workers were not able to be represented or engage in collective 
bargaining for 6\1/2\ years because of post-election litigation brought 
by the employer. That case was recounted in my testimony for the 
purpose of illustrating that, in that case, conducting an election 
within the Board's target median timeframe that resulted in the 
selection of union representation (i.e., within the 66 percent 
statistic) did not insure that the election process was not fraught 
with delays. Whether the election process is fair depends on the 
circumstances in which the process is conducted.
    It is my understanding that the Board will accept any timely 
petition to hold a decertification election where there is a sufficient 
showing of interest.

    Question 1d. Given your extensive partiality toward unions and your 
characterization of the NLRA as a ``sword which is used by employers to 
frustrate employee freedom of choice'' that ``no longer protects 
workers' rights to form a union,'' can you commit to carry out the 
mission of the Act in a neutral manner?
    Answer 1d. If confirmed, I would take my role as a neutral 
adjudicator of the law very seriously. I pledge that if I was confirmed 
as Board member, I will apply the law impartially to all parties that 
come before the Board with no preconceived agenda and make sure that 
cases are decided in a fair and expeditious manner.

    Question 2. You extensively rebuked two critical functions of 
Congress, oversight and legislative, in your ``Congressional Review of 
the National Labor Relations Board: Oversight or Over-the-Top.'' By 
characterizing my House Republican colleagues and me as being on a 
``meandering witch hunt'' against the NLRB, you made a broad 
presumption that House oversight activities were unfounded. Are you 
aware that the subpoena for emails of the Office of General Counsel 
relating to the Boeing case revealed troubling violations of the NLRB's 
own ex parte rules, the separation principle between the Office of 
General Counsel and the Board, as well as an extreme lack of 
professionalism and neutrality?
    Answer 2. The Constitution grants Congress the authority to conduct 
oversight over Federal agency activities and to amend statutes 
including the NLRA. My presentation did not state otherwise. I believe 
Congress has the right to consider such matters. If confirmed, I pledge 
to cooperate with congressional inquiries and oversight.

    Question 3. Since you have so openly discussed your views on the 
Boeing case, please confirm whether or not you believe that a company 
located in a non-Right-to-Work State, in this case Boeing, seeking to 
expand and create new jobs in a Right-to-Work State should be charged 
with an unfair labor practice when no jobs were lost.
    Answer 3. I do not believe that a company located in a non-Right-
to-Work State seeking to expand and create new jobs in a Right-to-Work 
State should be charged with an unfair labor practice on that basis 
alone. Whether the company's actions could be alleged to have violated 
the National Labor Relations Act would depend on other facts and 
circumstances.

    [Whereupon, at 11:50 a.m., the hearing was adjourned.]

                                   [all]
```