NLRB, Deputy Labor Secretary Nominees Face Tough Questions from Senators

How can management-side lawyers and lobbyists stick up for workers?

By Allen Smith, J.D. Jul 18, 2017
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National Labor Relations Board (NLRB) nominees William Emanuel and Marvin Kaplan and Deputy Labor Secretary nominee Patrick Pizzella were in the hot seat July 13 when Democrats on the Senate Health, Education, Labor and Pensions Committee asked the candidates how they could represent workers given their pro-management pasts.

Sen. Patty Murray, D-Wash., criticized Committee Chairman Sen. Lamar Alexander, R-Tenn., for holding Emanuel and Kaplan's hearings simultaneously with Pizzella's, saying that Alexander was trying to ram through the nominations.

"The nominees repeatedly refused to offer straightforward answers to simple questions posed by senators and provided no real assurances that they are committed to protecting the rights of workers, as opposed to the interests of employers and corporations," said Christine Owens, executive director with the National Employment Law Project, in a statement. 

However, the Coalition for a Democratic Workplace's chairwoman, Kristen Swearingen, said in a statement that her organization is "confident both nominees [to the NLRB] will interpret the National Labor Relations Act (NLRA) in a manner that is fair to workers, unions and employers." The coalition is made up of more than 600 organizations representing millions of businesses nationwide.

Alexander said it was time to fill the positions at the NLRB and the DOL, noting that "Pizzella brings a wealth of relevant experience in both Democratic and Republican administrations."

As for the NLRB nominees, Alexander said, "The two nominees today are for positions that have sat vacant—one for 23 months since President Obama declined to nominate a Republican for the then-minority seat, and the other for 11 months. My hope is that these nominees will restore some balance to the labor board. After years of playing the role of advocate [for unions], the NLRB should be restored to the role of neutral umpire."

Emanuel and Kaplan Questioned

Sen. Elizabeth Warren, D-Mass., asked Emanuel, a lawyer at Littler in Los Angeles, how he could impartially defend the rights of workers when for decades he'd represented corporations at a "union-busting firm."

Emanuel answered that he didn't agree with Warren's characterization of his firm and said he would be "honest and enforce the law." In his introductory remarks, he noted that he has served as a labor lawyer for his entire career spanning several decades. He has focused primarily on traditional labor law issues involving the NLRB and the NLRA.

He is a contributing editor to a leading treatise on the NLRA, The Developing Labor Law (Bloomberg BNA, 2012), and has served on an NLRB advisory committee regarding agency procedures. Emanuel said he understands the workplace from a practical standpoint, and noted his experience during college and high school working as a railroad switchman in Milwaukee railyards, as well as stints as a brewery worker, construction worker, bartender and grocery clerk. Emanuel also is a fellow in the College of Labor Lawyers, which includes lawyers representing employees and employers.

[SHRM members-only HR Q&A: What is the function of the NLRA?]

But Warren called some of his views "pretty extreme," taking issue with his argument that arbitration agreements inconsistent with the NLRA nevertheless are enforceable and that employers suffer when employees are allowed to organize in the workplace without being arrested for trespassing.

Sen. Rand Paul, R-Ky., asked Kaplan and Emanuel if they have presuppositions when unions bring cases against business owners. Both responded, "no."

In his introductory remarks, Kaplan noted that he began working at the Office of Labor-Management Standards in 2007 as special assistant before moving to the House Committee on Oversight and Government Reform in 2009, where he served as counsel. In 2012 he became workforce policy counsel for the House Education and the Workforce Committee before switching to the Occupational Safety and Health Review Commission to serve as counsel in 2015. He noted that at the House Education and Workforce Committee, he oversaw NLRB policy and regularly met with NLRB members, unions, employers and interest groups and "always approached issues with an open mind."

However, Sen. Tim Kaine, D-Va., criticized Kaplan for helping draft legislation that would have overturned the NLRB's 2011 Specialty Healthcare decision, which approved micro-unions—unions with only a handful of members.

Kaine said that Republicans "vehemently denounced" the ruling, but noted that the average size of bargaining units before the ruling was 26 and remains 26 today.

Pizzella Taken to Task

Sen. Al Franken, D-Minn., asked tough questions of Pizzella, pointing out that from 1996 to 2001, Pizzella worked for disgraced lobbyist Jack Abramoff, who was imprisoned for bribing federal officials.  Franken criticized Pizzella for being part of the Abramoff team that lobbied against a minimum wage in the Northern Mariana Islands, a territory of the United States that at the time was not subject to minimum-wage and immigration laws. Workers in the Northern Mariana Islands faced terrible conditions, Franken said. Many employees were told they were going to America and ended up in the Northern Mariana Islands facing forced prostitution and beatings. Abramoff and his associates lobbied to block protections for these workers, all the while allowing products from the islands to bear the "Made in USA" label without having to comply with U.S. laws. Franken asked Pizzella if he was aware of these conditions.

Pizzella said he wasn't.

Franken, however, said the allegations would have been "hard to miss," especially if someone had been lobbying against legislation addressing the abuses happening in the islands, which Franken said Pizzella did.

Pizzella noted that this was the fifth time a president had nominated him for a position of public trust. If confirmed, he promised to do his best to advance President Donald Trump's and Secretary of Labor Alexander Acosta's mission for the workforce, advance the welfare of wage earners and assure work-related benefits are protected. Pizzella spent much of the hearing talking about his commitment to apprenticeship programs, a priority of Acosta's and Trump's, and to finding ways to improve efficiencies in the department, which faces a 21 percent reduction under Trump's budget.

 

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