Senate Labor Committee Presses NLRB Nominees During Confirmation Hearing

Senate is expected to decide on all five NLRB nominees next week

Sen. Lamar Alexander / AP
• July 23, 2013 12:19 pm


President Barack Obama's last-minute National Labor Relations Board nominees continued their rush through confirmation on Tuesday, appearing for the first time before the Senate labor committee.

Committee Republicans grilled former AFL-CIO attorney Nancy Schiffer and Democratic NLRB attorney Kent Hirozawa about their pro-union approach to labor law.

"The NLRB is not meant to be a part of the president's team, but a neutral arbiter," Sen. Tim Scott (R., S.C.) said.

Schiffer has repeatedly testified before Congress to do away with secret ballots in union elections, calling company's "inherently coercive environments." She attempted to distance herself from her consistent support for easing unionization.

"I … joined the General Counsel's office of the AFL-CIO, where I advocated for their positions, including before Congress," she said in her opening statement.

"You were advocating for the AFL-CIO's position, that's what a good lawyer does," Committee on Health, Education, Labor and Pensions Chairman Sen. Tom Harkin (D., Iowa) said.

Sen. Lamar Alexander (R., Tenn.), ranking member, grilled Schiffer on her work for AFL-CIO and challenged Hirozawa for touting "the labor movement as ‘our movement'" in a 2008 union publication.

"What can you say to employers [to assure them] that you have moved away from the position of advocate—and you've been a pretty fierce one on behalf of labor—to an impartial judge?" Alexander asked.

"I have no preconceived agenda," Schiffer said, a sentiment echoed by Hirozawa.

Sen. Orrin Hatch (R., Utah) challenged the pair's assurances of objectivity.

"We've had numerous union lawyers assure this committee that they'd be objective … I don't think the promises they made here were kept," Hatch said.

While Schiffer is a well-known labor attorney and long-time supporter of forced unionism, Hirozawa's background is murkier. He has served as NLRB chairman Mark Gaston Pearce's chief counsel for three years. Much of the work he has prepared has been published under Pearce's name.

Hatch and Sen. Johnny Isakson (R., Ga.) took Hirozawa to task for some of the opinions issued by Pearce during his tenure on the board. Hirozawa dodged the inquiries into his work at the board, citing attorney-client privilege.

"Can you explain to the committee why the chairman decided to undo decades of precedent?" Isakson asked, regarding the board's determination that unions can form smaller units that are easier to organize within shops.

Hirozawa conceded that these micro unions "would make labor relations much more complicated," but refused to say whether he agreed with Pearce's decision.

"My duty is to advise him … I really can't go into what my personal views at that time may or may not have been," Hirozawa said. "My view is that board members should honor precedent and only depart from it on very rare occasions."

Union watchdogs are skeptical of Hirozawa's nomination, especially because it has been difficult to review his work at the NLRB.

"You can't see his signature on Pearce's briefings," said National Right to Work Legal Defense Foundation president Mark Mix. "Apparently Trumka knows him well enough and Obama and Harkin are willing to take him at his word."

AFL-CIO President Richard Trumka handpicked Schiffer and Hirozawa after meeting with Obama on Tuesday. The president withdrew the nominations of his unconstitutional recess appointees Sharon Block and Richard Griffin last week in a deal to avoid the nuclear option.

The lack of public information disturbed former NLRB general counsel Jerry Hunter.

"It is even more important that he be properly vetted because he appears to be a Pearce twin," he said. "Maybe that's what labor is counting on."

The Senate had just one day to vet the candidates before the hearing. Schiffer and Hirozawa met with GOP staffers on Monday, submitting questionnaires regarding their backgrounds in labor law. The White House handed over conflict of interest documents to the Senate on Tuesday morning.

The Supreme Court will decide in its next session whether to overturn more than 1,000 rulings issued by the board during Block and Griffin's tenure, including controversial policies on collective bargaining, micro unions, and ambush union elections. The new NLRB nominees could cement those dubious rulings, according to Hunter.

"They could just rubber-stamp the previous questionable decisions that are pending in the courts," Hunter said.

Alexander said he is wary of confirming two new solid union votes to the board.

"The NLRB has been moving away from a level playing field and impartiality" under the Obama administration, he said. "This hearing is about jobs that are supposed to be judges, not advocates … I want to make sure the board's mission is carried out, rather than a private agenda, such as forcing employees to join unions."

The labor committee approved two Republican nominees, as well as Pearce in May. Senate Majority Leader Harry Reid is attempting to confirm all five nominees by August, in order to maintain a Democratic majority board.

The committee will vote to approve Schiffer and Hirozawa on Wednesday. The Senate is expected to take up all five NLRB nominees next week.