Pending Nominations To The National Labor Relations Board

S. HRG.
113788
PENDING NOMINATIONS TO THE NATIONAL

LABOR RELATIONS BOARD
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION,

LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
ON
EXAMINING THE NOMINATIONS OF MARK GASTON PEARCE, OF NEW

YORK, TO BE CHAIRMAN, WHO WAS INTRODUCED BY SENATOR SCHUMER, AND RICHARD F. GRIFFIN, JR., OF THE DISTRICT OF COLUMBIA,
WHO WAS INTRODUCED BY SENATOR WARREN, SHARON BLOCK, OF
THE DISTRICT OF COLUMBIA, WHO WAS INTRODUCED BY SENATOR
MURPHY, HARRY I. JOHNSON III, OF VIRGINIA, WHO WAS INTRODUCED BY FORMER SENATOR BYRON DORGAN, AND PHILIP ANDREW
MISCIMARRA, OF ILLINOIS, WHO WAS INTRODUCED BY SENATOR
ALEXANDER, ALL TO BE A MEMBER, ALL OF THE NATIONAL LABOR
RELATIONS BOARD
MAY 16, 2013
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

TOM HARKIN, Iowa, Chairman
BARBARA A. MIKULSKI, Maryland
LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington
MICHAEL B. ENZI, Wyoming
BERNARD SANDERS (I), Vermont
RICHARD BURR, North Carolina
ROBERT P. CASEY, JR., Pennsylvania
JOHNNY ISAKSON, Georgia
KAY R. HAGAN, North Carolina
RAND PAUL, Kentucky
AL FRANKEN, Minnesota
ORRIN G. HATCH, Utah
MICHAEL F. BENNET, Colorado
PAT ROBERTS, Kansas
SHELDON WHITEHOUSE, Rhode Island
LISA MURKOWSKI, Alaska
TAMMY BALDWIN, Wisconsin
MARK KIRK, Illinois
CHRISTOPHER S. MURPHY, Connecticut
TIM SCOTT, South Carolina
ELIZABETH WARREN, Massachusetts
PAMELA J. SMITH, Staff Director
LAUREN MCFERRAN, Deputy Staff Director and Chief Counsel
DAVID P. CLEARY, Republican Staff Director
(II)
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CONTENTS
STATEMENTS
THURSDAY, MAY 16, 2013
Page
COMMITTEE MEMBERS
Harkin, Hon. Tom, Chairman, Committee on Health, Education, Labor, and
Pensions, opening statement ...............................................................................
Alexander, Hon. Lamar, a U.S. Senator from the State of Tennessee, opening
statement ..............................................................................................................
Prepared statement ..........................................................................................
Murphy, Hon. Christopher S., a U.S. Senator from the State of Connecticut ....
Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........
Murray, Hon. Patty, a U.S. Senator from the State of Washington ...................
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia .......................
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ......
Scott, Hon. Tim, a U.S. Senator from the State of South Carolina .....................
Baldwin, Hon. Tammy, a U.S. Senator from the State of Wisconsin ..................
Sanders, Hon. Bernard, a U.S. Senator from the State of Vermont ...................
Franken, Hon. Al, a U.S. Senator from the State of Minnesota ..........................
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GUEST SENATORS
Dorgan, Hon. Byron, a former U.S. Senator from the State of North Dakota ...
Schumer, Hon. Charles, a U.S. Senator from the State of New York .................
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11
WITNESSES
Pearce, Mark Gaston, Chairman, National Labor Relations Board, Buffalo,
NY .........................................................................................................................
Griffin, Richard F., Jr., Member, National Labor Relations Board, Washington, DC .............................................................................................................
Block, Sharon, Member, National Labor Relations Board, Washington, DC .....
Johnson, Harry I., III, Member-Designate, National Labor Relations Board,
Pacific Palisades, CA ...........................................................................................
Miscimarra, Philip Andrew, B.A., MBA, J.D., Member-Designate, National
Labor Relations Board, Hinsdale, IL ..................................................................
12
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ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
The New York Times, Critics Say Labor Board Favors Business, article ....
Union and Management Attorneys, letter ......................................................
American Association of University Women (AAUW), letter ........................
(III)
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PENDING NOMINATIONS TO THE NATIONAL

LABOR RELATIONS BOARD
THURSDAY, MAY 16, 2013
U.S. SENATE,
HEALTH, EDUCATION, LABOR AND PENSIONS,
Washington, DC.
The committee met, pursuant to notice, at 10:03 a.m., in room
430, Dirksen Senate Office Building, Hon. Tom Harkin, chairman
of the committee, presiding.
Present: Senators Harkin, Murray, Sanders, Casey, Franken,
Baldwin, Murphy, Warren, Alexander, Isakson, and Scott.
Also present: Senators Schumer and Dorgan.
COMMITTEE
ON
OPENING STATEMENT
OF
SENATOR HARKIN
The CHAIRMAN. The Senate Committee on Health, Education,

Labor, and Pensions will please come to order.
The hearing this morning is on the nominations for the National
Labor Relations Board.
Over 75 years ago, Congress enacted the National Labor Relations Act, guaranteeing American workers the right to form and
join a union and bargain for a better life. For both union and nonunion workers alike, the Act provides essential protections. It gives
workers a voice, and the ability to join together and speak up for
fair wages and good benefits and safe working conditions. These
rights are one of the pillars of our middle class, ensuring that 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. I think what few people understand or realize is
that workers themselves cannot enforce the National Labor Relations Act. The Board is the only place workers can go if they have
been treated unfairly and denied the basic protections that the law
provides. Thus, the Board plays a critical role in vindicating workers rights. In the past 10 years, the NLRB has secured opportunities of reinstatement for 22,544 employees who were unfairly fired.
It has also recovered more than $1 billion on behalf of workers
whose rights were violated.
The Board is just as essential for our Nations employers. If an
employer, for example, is the victim of a wildcat strike, or is in negotiations with the union and cant get the union to bargain in good
faith, the Board is their only recourse. And the NLRB has helped
numerous businesses resolve disputes efficiently.
(1)
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Because this agency is absolutely critical to our economy and our
country and our middle class, it is deeply disappointing to see what
has happened to the Board in recent years, including the relentless
political attacks endured by the dedicated public servants who
work on the Board. To put it plainly, there are clearly many elected
officials who are actively trying to shut the NLRB down.
In 2011, when the agency needed new Board members to satisfy
its quorum requirements, instead of working together to confirm a
bipartisan package of well-qualified nominees, some prominent
Senators publicly announced their intention to block any nomination to the NLRB. In a well-publicized statement, one of my colleagues on the other side of the aisle said he would filibuster even
if this caused the agency to cease functioning altogether. And to
quote him, he said, The NLRB as inoperable could be considered
progress.
It didnt used to be this way. We used to understand and acknowledge that members of the Board had differing views, different
ideological perspectives, but all of us agreed that the Board itself
should function for the good of our country and our economy. But
in recent years, that shared understanding has broken down. The
Board has not had five Senate-confirmed members in a decade, in
a decade. In my view, that speaks a lot more perhaps to our dysfunction here in the Senate than anything the Board itself has
done.
But what most concerns me is how this political game playing is
impacting the everyday lives of working people across America.
Whether it is the relentless filibustering of nominees that prevents
the Board from having a quorum, or ceaseless litigation that delays
and denies justice, these attacks on the Board have real consequences for real people.
The litigation surrounding President Obamas recess appointments, for example, has impacted countless working Americans:
real people, people like Marcus Hedger, a former printing and
pressman from Lake Villa, IL. Marcus worked for a printing company for 9 years, serving as union steward for most of his time
there. In 2010, when the company was about to be sold, the owners
cracked down hard on Marcus for his role in collective bargaining
negotiations. Marcus was fired.
A unanimous, bipartisan panel of the NLRB determined in September 2012 that Marcus was unlawfully fired and ordered that he
be reinstated with back pay. But the company appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, and in January that case was delayed due to the recess appointment litigation,
leaving Marcus without any recourse. Almost 3 years since his
claim was filed with the Board, Marcus is still looking for justice.
He doesnt have his job back, and the only job that he could find
pays only one-third as much as his previous one. Because of this
financial hardship, Marcus just lost his home to foreclosure. Reallife consequences.
And this wasnt just any home, this was his dream home, the
home he and his family had scrimped and saved for for their entire
lives. It was his slice of the American Dream that was lost through
no fault of his own, because the system is broken and couldnt protect his rights.
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Now, lets be clear about why Marcus was fired. He was fired for
participating in collective bargaining, a process that our Nations
laws protect and encourage. I have often quoted from the National
Labor Relations Act on this point, and I will do so again. The Act
statesthis is the law,
It is 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 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.
So the National Labor Relations Act doesnt just set up the parameters for collective bargaining. It actually encourages the practice and procedure of collective bargaining. And I am proud to be
a citizen of a country that encourages collective bargaining. If my
colleagues dont share this view, then they should be honest about
their intentions and simply try to repeal the National Labor Relations Act. I think that would be much more appropriate than constantly using procedural threats or political obstructionism and
budget game-playing to try to destroy the agencys ability to do the
job that it is required by law to do.
Three people sitting before us today have been dedicated, and
even courageous, in fulfilling the duties they have been sworn to
carry out as members of the Board, despite constant political interference and even personal attacks. The other two nominees before
us today have commendably accepted the Presidents call to serve
and are eager to join the Board, even in these tumultuous times.
These are five incredibly well-qualified candidates for the National
Labor Relations Board. They come from diverse backgrounds, but
all are deeply steeped in labor or employment law and would bring
rich experiences to the Board. It cannot be disputed that this is a
highly skilled, competent, and experienced panel of labor or employment law experts. They deserve to be confirmed. They should
be confirmed.
A letter I recently received from 32 management-side and 15
union-side labor attorneys from across the country made this point
better than I can. It urged the swift confirmation of the full package of five nominees and said,
While we differ in our views over the decisions and actions
of the NLRB over the years, we do agree that our clients interests are best served by the stability and certainty that a full,
confirmed Board will bring to the field of labor-management
relations.
I couldnt agree more.
I was heartened to hear that my good friend and Ranking Member, Senator Alexander, stated on the floor of the Senate a few
months ago that he wants to confirm a full package of Board nominees. I would like to work with Senator Alexander to get that job
done so we have a five-member Board.
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I hope that we can put this political game playing behind us,
have a good hearing, ask our questions, get things on the record,
and confirm a full package of five eminently qualified individuals
to be members of the National Labor Relations Board.
With that, I recognize Senator Alexander.
OPENING STATEMENT
OF
SENATOR ALEXANDER
Senator ALEXANDER. Thank you very much, Mr. Chairman. I look

forward to this hearing with the five nominees, and I thank them
for their willingness to serve.
It is important to have a fully confirmed National Labor Relations Board. This agency is charged, as the Chairman said, with
creating stability for employees, employers and unions to allow
Americas businesses to focus on succeeding and growing. But there
is a troubling lack of respect for the constitutional separation of
powers and for the Senates role of advice and consent that is
standing in the way of this confirmation process.
The Constitution laid out a balance of powers that has worked
pretty well and pretty much as the Founders intended for 227
years. Article I of the Constitution made us different from most
governments at the time. Most of our Founders, not all of them but
most of them did not want a king, and to ensure that we did not
have a king, our country had a Congress, and clear powers were
granted to Congress which could not be abrogated. The clearest
curb on the power of a monarch or the power of an executive in
our Constitution is Article 1 of the Constitution creating the Congress and the Bill of Rights.
Article II enumerates the executive powers of the presidency, and
it recognized a very practical reality of the day, long congressional
recesses. One of the powers reserved to the Senate is probably the
best-known authority of this body. That is Article II, Section 2, requiring the Senate to consent to the appointment of Ambassadors,
public ministers, consuls and other officers. We do that for about
1,000 of the Presidents nominees, and in each of the last two congresses we have worked in a bipartisan way to make it easier for
the President to make the nominations and for the Senate to consider them in a reasonable period of time.
The Founders anticipated there would be periods of time when
the Senate and the House would not be in session, and the Senate
would not be able to consent to such appointments. So they put
into the Constitution a provision saying that during these times,
the President could make a recess appointment for vacancies that
may happen during the recess of the Senate. At the beginning of
this Nation, this was important. In those days, there were long, extended periods of time between the annual sessions of Congress.
Members of Congress were spread all over the country. Senator
Sam Houston of Texas had to go from Texas to New Orleans, get
on a boat, come up the Mississippi River, ride a horse, take a
stagecoach, finally get here and take the same route home. So it
was envisioned that during the times Senators were gone, the
President could make recess appointments.
Some may wonder why we still have recess appointments with
modern communications and modern travel, but it is still there in
the Constitution. But President Obama, on January 4, 2012, acted
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as though it werent there at all. The President made recess appointments while the Senate was not in recess. This is unprecedented. It had never been done. It was done during the time when
the Senate majority leader, Senator Reid, had proposed a resolution which the Senate unanimously adopted that said the Senate
was in session and that it would convene every 3 days.
Now, over time, many Presidents have expanded their use of the
recess appointment power, yet no one has gone as far as President
Obama did on that day. The Senate must decide when we are in
session, not the President. If it were otherwise, there would be no
point to having the advice and consent power in the Constitution
at all. The President could appoint officials anytime he wished. The
Senate could return from lunch and find there is a new Supreme
Court Justice.
On January 4, the President made three appointments to the National Labor Relations Board. Two are still there. They have told
meI have met with them and had good meetingsthat they felt
obligated to stay in their positions, those two members.
After President Obama took this action, the so-called recess appointees began deciding cases, and one of those cases was appealed.
The company appealed because it argued that the Board didnt
have a required quorum of three valid, constitutionally appointed
members. A three-judge panel of the Court of Appeals agreed. It
unanimously said these recess appointments violated Article 2, Section 2 of the Constitution, that the President had made recess appointments when there was no recess. That court holds a special
place in the American judicial system because all NLRB decisions
may be appealed there, and many are.
Therefore, all cases in which these nominees have participated or
will participate may also be vacated if their votes provided the
Board with the necessary quorum.
Since the so-called recess appointees were sworn in, the NLRB
has issued 910 published and unpublished decisions; 206 of those
came after the Noel Canning case, which is the case at subject. All
of these can be appealed to the D.C. Circuit and vacated.
I have met with each of the nominees before us today. I do not
question their qualifications. They all have distinguished backgrounds. I know that Ms. Block and Mr. Griffin feel obligated to
stay in those positions after a preeminent court ruled that they
were invalidly appointed because of the oath they took. I appreciate
their candor and their dedication to public service. My problem is
not with their qualifications. My problem is that they continue to
decide cases after the Federal appellate court unanimously decided
they were unconstitutionally appointed.
Not only has the President shown a lack of respect for the constitutional role of the separation of powers and the curb on the executive branch that Article I provides, but I believe these two individuals have as well. This is part of a disturbing pattern of end
runs around the Congress, whether it is appointing more tsars
than the Romanoffs had or executive orders that stretch the limit
of executive authority, or using waiver authority to create, in effect,
a national school board, or the Secretary of Health raising money
privately for private organizations to do what Congress has refused
to do, or whether it is recess appointments when there is no recess.
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It is important for our countrys liberties to protect the separation of powers. Therefore, I cannot support the nominations of
these two. I also believe their decision to stay on creates enormous
opportunity for confusion and waste. I agree, we want certainty.
The best way to have certainty is to have five confirmed members
of the Board. The President could nominate two equally qualified
members who did not sit on the NLRB when a court had decided
they were unconstitutionally there.
I dont have the same problem with the three other nominees
here today, Chairman Pearce, Mr. Miscimarra, and Harry Johnson.
They have been nominated through the regular process, and the
best way for the President to ensure certainty is to nominate two
well-qualified individuals who did not continue to decide cases after
the court said they were unconstitutionally appointed. If he does,
I will pledge to work with the Chairman for their speedy confirmation.
Thank you, Mr. Chairman.
[The prepared statement of Senator Alexander follows:]
PREPARED STATEMENT
OF
SENATOR ALEXANDER
Thank you for holding a hearing on this slate of nominees to the

National Labor Relations Board.
It is important to have a fully confirmed NLRB. This agency is
charged with creating stability for employees, employers and
unions to allow American businesses to focus on succeeding and
growing.
But there is a troubling lack of respect for the Constitution, and
for Congresss role of advice and consent, that is standing in the
way of this confirmation process.
The Constitution laid out a balance of powers that has worked
well, and pretty much as the founders intended, for 227 years.
Article I of the Constitution made us different from most other
governments of the time. It ensured that we would have no king
by granting clear power to Congress which could not be abrogated.
Article II of the Constitution enumerates the executive powers of
the Presidency, and it recognized a very practical reality of the
daylong congressional recesses.
One of the powers reserved for the Senate is probably the best
known authority of this body. That is the advice and consent clause
of Article II, section 2, requiring the Senate to consent to the appointment of Ambassadors, public ministers, counsels and other officers.
The Founders anticipated that there would be periods of time
when the Senate and the House would not be in session and the
Senate would not be able to consent to such appointments.
They put into the Constitution a provision saying that during
those times, the President may make a recess appointment for vacancies that may happen during the recess of the Senate.
At the beginning of this Nation, this was important. In those
days, there were long, extended periods between the annual sessions of the Congress, when the Members of Congress were spread
all over the country.
Senator Sam Houston of Texas, had to go from Texas to New Orleans, get on a boat, come up the Mississippi River, and then ride
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a horse and take a stagecoach to get here. It took him weeks
same to go home.
With todays modern transportation systems, the practical reality
the founders were concerned about is less of a concern.
In fact, although some may wonder why we still have a recess
appointment clause, the fact is that its still there.
But President Obama on January 4, 2012, acted as though it
wasnt there at all.
This is the first time any President has made a recess appointment while the Senate wasnt in recess. It was unprecedented. The
Senate had unanimously adopted a resolution that it was in session
and would convene every 3 days.
Over time, Presidents have expanded their use of the recess appointment power more and more, yet no one has gone as far as
President Obama.
The Senate must decide when we are in session, not the President. If it were otherwise, there would be no point to having an advice and consent power in the Constitution at all.
A President could simply appoint any officials at any time. The
Senate could return from lunch to find theres a new Supreme
Court justice.
On January 4, the President made three appointments to the National Labor Relations Board. Two are still there.
After President Obama took this action, the so-called recess appointees began deciding cases. The Noel Canning company is a
small bottling firm in Washington State which lost a case before
the NLRB. This company appealed that decision based on the fact
that the Board did not have the required quorum of three valid,
constitutionally appointed members at the time that the decision
was issued.
This January, a three-judge panel of the District of Columbias
U.S. Circuit Court of Appeals agreed. It ruled unanimously that
these recess appointments violated Article II, Section 2 of the
U.S. Constitution. They ruled that the President had made a recess
appointment when the Senate was in session.
This court holds a special place in the American judicial system
because all NLRB decisions may be appealed here, no matter
where the action was initiated. So, it gets a large percentage of
those cases.
Therefore, all the cases in which these nominees have participated or will participate may also be vacated, if their votes provided the Board with the necessary quorum.
Since this important court ruled that their decisions would not
be upheld, the invalid recess appointees have continued to decide
cases.
Since the so-called recess appointees were sworn in, the NLRB
has issued 910 published and unpublished decisions206 of those
came after the Noel Canning decision. All of these can be appealed
to the DC Circuit and vacated.
Let me be clear, I have met with each of the nominees before us
today and they are all fine people. I do not question their qualifications.
I know that Sharon Block and Richard Griffin feel obligated to
stay in their positions even after a preeminent court ruled that
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they were invalid because of the oath they took when they were
sworn in at the NLRB. I appreciate their candor and dedication to
public service.
The problem here is not the qualifications of these two nominees.
The problem is that they continued to decide cases after the Federal appellate court unanimously decided they were unconstitutionally appointed.
Not only has the President shown a lack of respect for the Constitutional role of the separation of powers and the curb on executive power that Article I provides, but I believe that these two individuals have as well.
Therefore, I cannot support their nominations.
In addition, I believe their decision to stay on creates enormous
opportunity for confusion and waste. If the Supreme Court agrees
with the unanimous Federal court, this creates that many more
cases that will be vacated and that much more uncertainty.
I do agree that the best way to create certainty is to have five
more confirmed members of the Board. And the best way for that
to happen is for the President to nominate five well-qualified persons and to do it in a way that follows his prerogatives under the
Constitution.
I dont have the same problem with the other three nominees
here today, Chairman Pearce and Phil Miscimarra and Harry
Johnson. They have been nominated through the regular process.
And the best way for the President to ensure certainty is to nominate two well-qualified individuals who will respect the constitutional prerogatives of the power of advice and consent.
Finally, I want to address any claim that the Senate was holding
up these nominations. It simply holds no weight when you look at
the calendar.
The two unconstitutional appointees here today were originally
nominated for their positions on December 15, 2011, just 20 days
before the President took this unprecedented action.
This committee did not even receive these nominees applications
until January 25thats 21 days after they were appointed on Jan
4. Members had no opportunity to conduct background checks or
otherwise evaluate the nominees.
Adding insult to injury, the President chose to take this action
on January 4, rather than January 2 when the Senate did adjourn
between sessions. This 2-day difference means these unconstitutional appointments last a full 2 years, rather than one.
Again, I urge these two individuals to respect the courts ruling
and leave the Board immediately. And I urge the President to submit two new nominees for these two positions.
Should he do so, I pledge to work for their swift consideration
here at the HELP Committee.
The CHAIRMAN. Thank you, Senator Alexander.
First, I will recognize Senator Alexander for purposes of an introduction.
Senator ALEXANDER. Thank you, Mr. Chairman.
I am pleased to introduce the distinguished nominee, Phil
Miscimarra. He is currently a partner in the Labor and Employment Group of Morgan Lewis and Bockius in Chicago, where he
has been since 2005. He has been a senior fellow at the Wharton
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School of Business. He received his B.A. from Duquesne, an MBA
from Wharton, and a J.D. from the University of Pennsylvania Law
School. I met with him, as I have the other nominees. I find him
to be knowledgeable about our system. He has written entire books
about the NLRB. I am glad to present him to the committee.
Now I will recognize Senator Murphy for purposes of an introduction.
STATEMENT
OF
SENATOR MURPHY
Senator MURPHY. Thank you very much, Chairman Harkin,

Ranking Member Alexander, for letting me introduce a dedicated
public servant and very capable member of the National Labor Relations Board. Sharon Block is a current Board member who has
dedicated her life to public service. She has served with integrity
as a Board member since January 2012, and previously she served
as Deputy Assistant Secretary for Congressional Affairs at the Department of Labor and as the senior labor and employment council
for this committee, where she worked for Senator Kennedy.
Ms. Block has also served as a senior attorney to Chairman Robert Battista at the National Labor Relations Board. From 1994 to
1996, she was the Assistant General Counsel at the National Endowment for the Humanities after receiving her degree from
Georgetown University Law Center, where she won the John F.
Kennedy Labor Law Award.
Ms. Block grew up in Westport, CT, and her parents, who I believe are here today, still reside in Wilton, CT. We are very proud
of the work that she has done, and Americas workers and businesses are counting on us to make sure that she can continue this
important work as a Board member at the NLRB.
Thank you, Mr. Chairman, for allowing me to introduce Ms.
Block before the committee today.
The CHAIRMAN. Thank you, Senator Murphy.
Next I will recognize Senator Warren for the purposes of an introduction.
STATEMENT
OF
SENATOR WARREN
Senator WARREN. Thank you, Mr. Chairman.

It is my pleasure to introduce Richard F. Griffin, Jr., who has
served on the NLRB since January 2012. Richard is a law school
graduate of Northeastern University in Boston, and for 28 years he
has worked for the International Union of Operating Engineers.
Seventeen of those years he spent as their general counsel. The operating engineers have a special place in my heart. My big brother
operated a big crane and was a member of this union. I have had
a chance to meet many of their members. They are honest people,
hard workers who have literally helped build our country.
As counsel, Mr. Griffin has helped cleanup the union and has
served as a trustee for the central pension fund to assure the retirement security of over 100,000 participants, including my brother. Thank you.
He has also had extensive experience working as counsel for the
NLRB. He served both Democratic Board member John Fanning
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and President Reagans appointee, Republican Chairman Donald
Dotson.
We are pleased to have you here today with us and to share your
testimony, and we are very pleased to welcome your wife and your
daughter, who I understand are also with you. Thank you very
much for being with us. Massachusetts is proud of you, and we look
forward to your testimony today and your service on the NLRB.
The CHAIRMAN. Thank you very much, Senator Warren.
I would like to call to the table our former colleague and good
friend, former Senator Byron Dorgan of North Dakota, for the purposes of an introduction.
Senator Dorgan, welcome back to the Senate.
STATEMENT
OF
SENATOR DORGAN
Senator DORGAN. Mr. Chairman, thank you very much. Members

of the committee, it is nice to be here and nice to see all of you.
I will be mercifully brief. I know you have five nominees, and you
have already had another hearing earlier this morning.
I was just thinking as I was sitting here that with all the difficulty of nominations, it is still an enormously hopeful sign that
when their country calls, people come to these tables and say I will
serve, and that is the case again this morning.
I am here to introduce a friend and colleague named Harry Johnson. Harry is someone who has a distinguished career. He is a native Virginian. He is a friend. He is a Harvard graduate, has a very
distinguished career in law in California working for Arent Fox,
and I have had the opportunity to work with him and know him
well and commend him to you.
He is smart, honest, and experienced. I am convinced he will
make a very positive contribution to this Board. It seems to me
that when you put someone who is both serious and thoughtful on
a board like this at this time, it certainly will help, not hurt, the
workings of that board.
If I might make just one additional comment. Our country is
blessed, I think, that over time, when the question is asked who
will lead, that there are always people who stand up in this country and say I will lead and answer that call, and Harry Johnson
is one of them. They, as you know, and their families often pack
up, including their children and their belongings, and move halfway across the country to serve their country. That is the case
today with Harry Johnson. He is an awfully good choice. I am
proud that the President has asked him to serve, proud that he has
volunteered to serve, and hope that he will have very strong support among the committee members this morning.
Mr. Chairman, thank you very much.
The CHAIRMAN. Senator Dorgan, thank you very much for being
here and for that introduction. You are always welcome to appear
before this committee, on this or anything else. Thank you very
much, Senator Dorgan.
Senator Schumer was going to be here for the purposes of an introduction of Chairman Pearce, but I think he is tied up in the immigration hearing in the Judiciary Committee. So if Mr. Pearce
doesnt mind, I will take Mr. Schumers place and introduce the
Chairman.
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Mark Gaston Pearce is currently the Chairman of the National
Labor Relations Board, and has served as a member of the NLRB
since March 2010. Formerly a founding partner at Creighton
Pearce Johnson and Giroux, Chairman Pearce has been in the
practice of labor and employment law for more than three decades.
At the start of his career, Chairman Pearce worked as a field attorney and later a district trial specialist with Region III of the National Labor Relations Board.
Senator Schumer, we welcome you. I didnt know if you were
going to get out of that immigration markup or not.
STATEMENT
OF
SENATOR SCHUMER
Senator SCHUMER. A few minutes respite is welcome. Its much

more pleasant to be here.
The CHAIRMAN. Thank you, and welcome to the committee. I just
started to introduce Mr. Pearce, but I will yield to you for the purposes of an introduction.
Senator SCHUMER. Thank you, Chairman Harkin and Ranking
Member Alexander, and all of my colleagues here today. I know
you are pressed for time, so I will try to be brief.
I am so pleased to be able to introduce an esteemed attorney and
a native of Brooklyn, NY, my home borough, who made his home
at the other end of our great State in a wonderful place called Buffalo, NY, and that is Mark Pearce to this committee.
For some of you, this is a reintroduction. President Obama appointed Mark to serve on the NLRB and was confirmed by the full
Senate for a term ending August 27, 2013. After a year as a member of the Board, Mark was sworn in as its chairman, and today
I would ask the committee to approve his nomination so he can
continue his important work and the Board can be productive
under his continued leadership.
Marks intellect, his experience and his dedication make him not
only an outstanding public servant but also a tireless advocate for
the issues he cares so much about, the unquestionable need for fair
labor practices and fair representation for union workers.
Before coming to Washington, Mark was a founding member of
the Buffalo, NY law firm of Creighton Pearce Johnson and Giroux.
Mark practiced labor and employment law before State and Federal
courts and agencies. He served by appointment of the Governor on
the New York State Industrial Board of Appeals, and throughout
his career he has represented individuals, as well as public and private sector labor unions, in all matters involving employment and
labor relations, including civil service, employment discrimination,
collective bargaining contract compliance, arbitration, and Taylor
Law prosecution.
Mark has not just served on the Board and in the courtroom, but
he has been committed to helping the next generation by working
in the classroom. He taught at Cornell Universitys School of Industrial Labor Relations. He is a Fellow in the College of Labor and
Employment Lawyers. So Marks unquestionable dedication, experience and intelligence make him extremely qualified to serve on
the NLRB, and I recommend his nomination without reservation
and urge his swift confirmation.
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The CHAIRMAN. Senator Schumer, thank you very much for being
here and for appearing before this committee, and Godspeed on immigration reform. Thank you very much, Senator Schumer.
Now I will call to the witness table our nominees. It will be, from
left to right, Chairman Pearce, Mr. Griffin, Ms. Block, Mr. Johnson,
Mr. Miscimarra.
Again, we welcome you all here to the committee. I thank each
and every one of you, as a lot of the introducers have said, for your
willingness to serve on this very crucial and important independent
board.
Your statements will all be made a part of the record in their entirety. I would ask if you would sum up in 5 minutes or less so that
we can then get into our question-and-answer period.
We will start with our distinguished Chairman, Mr. Pearce.
Again, welcome back to the committee, and please proceed as you
so desire.
STATEMENT OF MARK GASTON PEARCE, CHAIRMAN,
NATIONAL LABOR RELATIONS BOARD, BUFFALO, NY
Mr. PEARCE. Thank you, Chairman Harkin, Senator Alexander,

and members of the committee. It is a great honor to appear before
you today, as well as to be considered for another term as a member of the National Labor Relations Board.
I am joined here by my wife, Nancy. My daughter, Naima, could
not make it.
I was born, as Senator Schumer said, in Brooklyn, one of five
children. My parents, Jamaican and Cuban-born immigrants, came
to the United States with the idea that with honest, hard work, one
can accomplish almost anything in this great country.
My mother was a factory worker, and my father worked as a laborer and handyman. They saved, bought real estate, started small
businesses, and turned their hopes into reality. Although possessed
of little formal schooling, my parents instilled in their children a
sense of the importance of education. They lived to see me become
a practicing attorney, and my mother proudly saw me confirmed as
a member of the National Labor Relations Board. I graduated from
Erasmus Hall High School in Brooklyn, Cornell University, and
several of my college summers were spent working electrical construction as a college helper. The recent installation of the Freedom
Tower in New York City reminded me that during two of these
summers, I had the amazing experience of working on the original
Twin Towers, a monument to American labor and ingenuity that
will not be forgotten.
I received my law degree from the State University of New York
at Buffalo, and it was in Buffalo, that great working-class city,
where I fell in love with my wife and with labor law, in that order.
As a law student, I was assigned to the NLRBs Buffalo regional
office through the schools work-study program. This exposure was
transforming. I saw that through the enforcement of the Act, significant issues affecting workers, employers and unions were being
addressed and industrial peace was being attained. I knew immediately that this was what I wanted to do.
This became the focus of my studies and my subsequent employment. I worked for 15 wonderful years in Buffalo at the regional
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office as a field attorney and district trial specialist, enforcing the
Nations primary labor law throughout the United States. I eventually left the NLRB to go into private practice. I co-founded a Buffalo law firm specializing in labor and employment law. I practiced
extensively before the National Labor Relations Board and also
represented clients before State and Federal courts and agencies.
I taught courses at Cornell, and I served as a certified mediator for
the U.S. District Court of the western District of New York. Mediation training became a valuable tool in my efforts at the Board to
seek common ground where there are divergent views.
In 2010, I had the honor and privilege to be nominated, appointed and confirmed as a member of the National Labor Relations Board, the very agency in which I started my career. The following year, that honor and privilege was even further heightened
by being named Chairman of the Board. As Chairman, I have
gained an even deeper appreciation for the work of the agency and
its importance to employees, employers and unions.
In the last fiscal year alone, over 20,000 unfair labor practice
charges were filed with the agency by members of the public. As
a result of effective Board enforcement of the Act, more than 1,200
workers were offered reinstatement, and over $44 million were recovered by employees in back pay and reimbursement of union
fees, dues or fines. And during the same period, the Board processed close to 2,500 election petitions and conducted more than
1,600 representation elections. For a small agency, the Board has
touched the lives of many Americans.
For almost 2 years I have represented the agency as one of the
leaders and principal spokespersons. I have embraced the responsibility of Chairman, and I am grateful for the opportunity to serve
in this manner. If it pleases the Senate, it would be my privilege
to continue to serve on the Board.
I thank you for this opportunity to offer these remarks, and I
welcome your questions.
[The prepared statement of Mr. Pearce follows:]
PREPARED STATEMENT
OF
MARK GASTON PEARCE
Thank you, Chairman Harkin, Senator Alexander, and members of the committee.
It is a great honor to appear before you today as well as to be considered for another term as member of the National Labor Relations Board.
I am joined here by my wife, Nancy McCulley. Our daughter Naima could not be
here today.
I was born and raised in Brooklyn, NY as one of five siblings. My parents, Jamaican and Cuban immigrants, came to the United States with the idea that with honest hard work one can accomplish almost anything in this great country.
My mother was a factory worker and my father worked as a laborer and handyman. They saved, bought real estate, started small businesses and turned their
hopes into reality. Although possessed of little formal schooling, my parents instilled
in their children a sense of the importance of education. They lived to see me become a practicing attorney and my mother proudly saw me confirmed as a member
of the National Labor Relations Board.
After graduating from Erasmus Hall High School in Brooklyn, I earned a bachelors degree from Cornell University. Several of my college summers were spent
working electrical construction as a college helper in New York City. During two of
these summers I had the amazing experience of working on the World Trade Center,
a monument of American labor and ingenuity that will never be forgotten.
I received my law degree from the State University of New York at Buffalo. And
it was in Buffalo, that great working-class city, where I fell in love with my wife
and with labor law (in that order).
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As a law student, I had the good fortune to be assigned to the NLRBs Buffalo
regional office through the schools work-study program. This exposure was transforming. I saw that through the enforcement of the Act, significant issues affecting
workers, employers and unions were being addressed and industrial peace was
being attained.
I knew immediately that this was what I wanted to do and it became the focus
of my studies and subsequent employment. I worked for 15 wonderful years at that
Buffalo regional office as a field attorney and District trial specialist enforcing the
Nations primary labor law throughout the United States.
I eventually left the NLRB to go into private practice. I co-founded a Buffalo law
firm specializing in labor and employment law. I practiced extensively before the
National Labor Relations Board and also represented clients before State and Federal courts and agencies. I taught courses at Cornell Universitys labor extension
program and served as a certified mediator for the U.S. District Court for the western District of New York. Mediation training became a valuable tool in my efforts
at the Board to seek common ground where there are divergent views.
By appointment of the Governor, I served the State of New York as a board member of the Industrial Board of Appeals. There, I worked with the other members of
a bipartisan board to resolve appeals of findings of the New York State Department
of Labor.
In 2010, I had the honor and privilege to be nominated, appointed and confirmed
as a member of the National Labor Relations Board, the very agency in which I
started my legal career. The following year the honor and privilege took new heights
when I was designated as chairman. As chairman I have gained an even deeper appreciation for the work of the agency and its importance to employees, employers
and unions.
In the last fiscal year alone, over 20,000 unfair labor practice charges were filed
with this agency by members of the public. As a result of effective Board enforcement of the Act, more than 1,200 workers were offered reinstatement, and over $44
million were recovered for employees in back pay or reimbursement of union fees,
dues or fines. And during the same period, the Board processed close to 2,500 election petitions and conducted more than 1,600 representation elections. For a small
agency, the Board has touched the lives of many Americans.
For almost 2 years I have represented the agency as one of its leaders and principal spokesperson. I have embraced the responsibilities of chairman and am grateful for the opportunity to serve in this manner. If it pleases the Senate it would
be my privilege to continue to serve on the Board.
Thank you for the opportunity to offer these opening remarks. I welcome your
questions.
The CHAIRMAN. Your timing is perfect, 5 minutes exactly. Thank

you.
Mr. Griffin, welcome, and please proceed.
STATEMENT OF RICHARD F. GRIFFIN, JR., MEMBER,
NATIONAL LABOR RELATIONS BOARD, WASHINGTON, DC
Mr. GRIFFIN. Chairman Harkin, Senator Alexander, and members of the committee, I am honored to appear before you today as
a nominee for the National Labor Relations Board. When I started
as an NLRB staff lawyer in 1981, I did not hope that such an opportunity, the pinnacle of any labor lawyers career, would be possible for me. I am humbled by the opportunity to serve and greatly
appreciate the confidence that President Obama expressed by
nominating me.
I am joined by my wife Claire, my daughter Emma, and my son
Charlie. It is impossible for me to express the full extent of my appreciation for my familys love and support.
I also want to credit my parents, Richard F. Griffin, Sr., and
Jane Flanagan Griffin. They have set the example in their life
which I have tried to emulate throughout mine. Their work ethic
they are both 80 years old and working more than full-time; my father is a lawyer, my mother is a research scientistis a standard
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I can only aspire to. Their active engagement in numerous civic
and professional committees in my hometown of Buffalo, NY has
been an inspiration.
I was educated in the Catholic schools in Buffalo, at Yale University, and at Northeastern University School of Law. During law
school, through the schools unique co-op program, I worked for the
United Auto Workers in Detroit and for a small labor law firm in
Chicago. These experiences confirmed my desire to practice labor
law. The field offered an opportunity for bridging differences, solving problems, and making peoples lives better that suited my interests and engaged my abilities.
After law school I went to work at the NLRB on the staff of
Board Member John Fanning. Appointed by President Eisenhower
in 1957, Mr. Fanning is an NLRB legend. He served 25 years as
a Board member. He truly believed in the national labor policies
stated in Section 1 of the Act,
to encourage collective bargaining and to protect 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 for other mutual aid or protection.
Grave respect for these statutory principles was ingrained in me
by the fine lawyers who worked for Mr. Fanning. I took what I
learned from them to work for the new Board Chairman, Donald
Dotson, when Mr. Fannings term was up and our staff was reassigned. You would be hard-pressed to find any two Board members
who were farther apart on the ideological spectrum than Mr. Fanning and Chairman Dotson, yet I worked successfully for both of
them and, in fact, received the exact same annual evaluation from
both.
In 1983, I went to work in the legal department in the International Union of Operating Engineers and stayed there for the
next 28 years. I advised the officers and staff of the union on organizing representation issues, pension and healthcare issues, and internal governance requirements. I also served for 9 years as a
union trustee on the Operating Engineers central pension fund, a
very large jointly trusteed fund where I worked closely with the
funds management trustees to assure the retirement security of
the funds more than 100,000 participants.
In my last 17 years at the Operating Engineers, I was the
unions general counsel. During that time, I represented an organization that in terms of assets, employees, and receipts was the
equivalent of a mid-sized business enterprise. I dealt with the legal
issues that the lawyer for any such enterprise would face, from
property tax appeals to complying with the Financial Accounting
Standard Boards pronouncements. The union had responsibilities
as an employer to comply with all laws governing employers, as
well as to abide by the collective bargaining agreements with several unions that represented that organizations employees.
These experiences, as a staff lawyer at the NLRB, as a union
lawyer, and as the general counsel of a mid-sized enterprise, give
me a useful and, I believe, fairly unique perspective on the cases
coming before the Board. Since my recess appointment I have tried
to bring that perspective to bear, working with wonderful col-
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leagues, Chairman Pearce and Member Block, both of whom bring
their own broad range of labor law experiences, as well as deep
knowledge of the Act, to our deliberations. I have done so guided
by the talented, diverse and experienced career NLRB staff. There
are no finer lawyers in government service than those working for
the Board. I hope to do so in the future with two new learned and
capable colleagues, Phil Miscimarra and Harry Johnson.
If confirmed, I pledge to work impartially and to the best of my
ability with my colleagues and the Boards career staff to strike the
appropriate balance between employee rights and management interests that is the Boards central task. Thank you very much for
your consideration of my nomination, and I look forward to your
questions.
[The prepared statement of Mr. Griffin follows:]
PREPARED STATEMENT
OF
RICHARD F. GRIFFIN, JR.
Chairman Harkin, Ranking Member Alexander and members of the committee.

I am honored to appear before you today as a nominee for the National Labor Relations Board. When I started as an NLRB staff lawyer in 1981, I did not hope that
such an opportunitythe pinnacle of any labor lawyers careerwould be possible
for me. I am humbled by the chance to serve on the Board and greatly appreciate
the confidence President Obama expressed by nominating me.
I would like to introduce my wife Claire and my daughter Emma; my son Charlie
is unable to be here today. It is impossible for me to express the full extent of my
appreciation for my familys love and support.
I also want to credit my parentsRichard F. Griffin, Sr. and Jane Flanigen Griffin. They set the example, both in their professional and personal lives, which I
have tried to emulate throughout mine. Their work ethicthey are both 80 years
old and still working more than full-time, my father as a lawyer and my mother
as a research scientistis a standard I can only aspire to; their active engagement
in numerous civic and professional activities in my hometown of Buffalo, NY has
been an inspiration.
I was educated in the Catholic schools in Buffalo, at Yale University and at
Northeastern University School of Law. While at Northeasternthrough the
schools unique co-op program, where students alternate work quarters with academic quartersI worked in the United Auto Workers General Counsels office in
Detroit and for a small labor law firm in Chicago. These experiences confirmed my
desire to practice labor lawthe field offered an opportunity for bridging differences, solving problems and making peoples lives better that suited my interests
and engaged my abilities.
After law school, I went to work at the NLRB on the staff of Board Member John
Fanning. Appointed by President Eisenhower in 1957, Mr. Fanning was the longest
serving Board member in the history of the agencyhe served 25 years. He truly
believed in the national labor policies stated in Section 1 of the Act:
to encourage the practice and procedure of collective bargaining and to protect
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 for other mutual aid or protection.
Grave respect for these guiding statutory principles was ingrained in me by the
fine lawyers who worked for Mr. Fanning. I took what I learned from them to work
for the new Board Chairman appointed by President Reagan, Donald Dotson, when
Mr. Fannings term was up and our staff was reassigned. You would be hard
pressed to find any two Board members who were farther apart on the ideological
spectrum than Mr. Fanning and Chairman Dotson. Yet, I worked successfully for
both of them and, in fact, received the exact same annual evaluation from both.
In 1983 I went to work in the legal department of the International Union of Operating Engineers and stayed there for the next 28 years. I advised the officers and
staff of the International Union on organizing and representation issues under the
National Labor Relations Act, on the pension and health care requirements of
ERISA, and on internal governance requirements under the Labor-Management Reporting and Disclosure Act, to name just a few of my responsibilities. I also served
for 9 years as a union trustee on a very large jointly trusteed pension fund, where
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I worked with the management trusteesmany of whom were executives of large
employer associationsto assure the retirement security of the funds more than
100,000 participants.
For my last 17 years at the Operating Engineers, I was the International Unions
general counsel. In that capacity, in addition to dealing with all the organizations
union-side labor law questions, I represented an organization that, in terms of number of employees, annual receipts, and assets approximated a mid-sized business enterprise. I dealt with the legal issues that the in-house general counsel of any such
enterprise would faceeverything from property tax appeals on the headquarters
building to how to comply with the Financial Accounting Standards Board pronouncements on the unions financial statements. In the employment law area, the
union had responsibilities as an employer to comply with all of the laws governing
employers, as well as to abide by the collective bargaining agreements with several
unions that represented the organizations employees.
My combination of work experiencesas an NLRB staff attorney, as a union lawyer, and as the general counsel of a mid-sized enterprisegive me a useful and, I
believe, fairly unique perspective on the cases coming before the Board. Since my
recess appointment in January 2012, I have tried to bring that perspective to bear
working with wonderful colleagues, Chairman Pearce and member Block, both of
whom bring their own broad range of labor law experiences, as well as deep knowledge of the Act, to our deliberations. I have done so guided by the talented, diverse
and extremely experienced career NLRB staffthere are no finer lawyers in government service than those working for the Board. And, I hope to do so in the future
with two new learned and capable colleaguesPhilip Miscimarra and Harry Johnson III. If confirmed, I pledge to continue to work impartially and to the best of my
ability with my colleagues and the Boards career staff to strike the appropriate balance between employees rights and legitimate management interests that is the
Boards central task.
Thank you very much for your consideration of my nomination and I look forward
to your questions.
The CHAIRMAN. Thank you again, Mr. Griffin. You all are right
on 5 minutes. I appreciate that.
Now we will turn to Ms. Block. I remember not too long ago, you
used to sit right here. Welcome back, Ms. Block.
STATEMENT OF SHARON BLOCK, MEMBER, NATIONAL LABOR
RELATIONS BOARD, WASHINGTON, DC
Ms. BLOCK. Thank you, Chairman Harkin, Senator Alexander,

and members of the committee. I am so honored to appear before
you as a nominee for the National Labor Relations Board. I assure
you that I fully appreciate the seriousness of your task in assessing
my fitness for the position for which the President has nominated
me. As Chairman Harkin alluded to, I have spent a fair amount
of time in this room, sitting behind Senator Kennedy when I served
as senior labor and employment counsel to the committee, or sitting in one of the chairs just behind me in my role as Deputy Assistant Secretary of Labor for Congressional Affairs when department witnesses testified here. And I welcome the same scrutiny of
my nomination that I have witnessed in this room of others.
Watching the members of this committee do their work I believe
prepared me well for taking on the role of member of the National
Labor Relations Board. My experience working on the MINER Act
for the committee has been particularly instructive for my tenure
as a Board member.
I first came to work for Senator Kennedy in the wake of the terrible Sago Mine disaster. Senators Kennedy, Enzi, Murray and
Isakson recognized the urgency of the need to protect American
miners and told us, their staff, to get a bill done to improve mine
safety. I learned from participating in those negotiations many important lessons, the value of considering the perspectives of all
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stakeholders, the necessity of finding practical solutions that do
more than just sound good on paper, and the virtue of principled
compromise. No senator involved in the negotiations got everything
he or she wanted in the resulting legislation, but through your
hard work, open dialog, and willingness to compromise, you
achieved a great bill that has made a difference for workers and
employers, and I have tried to apply these lessons to my work as
a Board member.
My service as a long-time career attorney at the NLRB also has
prepared me well for service as a Board member. At the Board, I
learned from the most talented and dedicated government attorneys how to represent the public interest. While I was fortunate to
represent the Board in many high-profile cases during my earlier
tenure at the Board, what made the biggest impact on me were the
smaller cases, the cases where the parties have no interest in making law or engaging in ideological debate. Instead, they are the
cases where the Board, as a neutral adjudicator, brings resolution
to parties who just want to have their voices heard and their views
fairly considered.
These are the kinds of cases that dominate the Boards docket
today, as in the past. The overwhelming majority of cases that I
have participated in as a Board member, serving with both Democrats and Republicans, have been unanimous decisions that applied
long-standing precedent. The importance of these cases cannot be
overstated. It is through these cases that the Board fulfills its mission of preserving industrial peace. We bring resolution and repose
to the worker who seeks reinstatement after being unlawfully discharged, and we affirm the right of an employer to move forward
in running his or her business when the facts show that a genuine
impasse in negotiations exists so that the collective bargaining
process will and can continue.
As you know, as Chairman Harkin alluded to, there is no private
right of action under the Act. So employees, employers, and unions
are dependent on the Board to ensure that the system for resolving
their disputes that Congress created still works. So it is incumbent
on us to move all cases as efficiently and fairly as possible.
In my experience on the Board, again with both Democrats and
Republicans, we have done so in the spirit of respectful collegiality.
I discuss every case with the career attorneys on my staff who have
both management and labor experience. When I served as senior
counsel to former Board Chairman Robert Battista, I always appreciated the frank case discussions he not only allowed but encouraged, and I have continued that tradition with my staff. They know
that as a former career attorney, I will never underestimate the
value of their contributions.
I would just like to add that being nominated and serving as a
Board member is the greatest honor of my professional life. I have
been in public service almost all of my career. The longest span of
my service has been as a career civil servant with the Board. When
I first came to the Board as a staff attorney and during the 10
years I served in that role, I never dreamed that I would one day
be a Board member. But when the President asked me to serve, I
was surprised, humbled and awed. This nomination means so much
to me because I believe the mission of the Board means so much
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to the tradition of fairness and dignity in the American workplace,
and I believe a fully confirmed Board is the best way to honor and
support that important tradition.
In closing, I would like to thank two sets of people here who have
been so important to me during the past 17 months. First, my colleagues Mark Pearce and Richard Griffin. The Board has had no
finer members, and I am so grateful for the experience of serving
with them. I would also like to thank my family who are here with
me, my husband Kevin Hovland, my children Charlotte and Eli, my
parents Lois and Joseph Block, and my uncle Michael Fuchs, for
all their love and support.
Thank you for the opportunity to offer these opening remarks,
and I welcome your questions.
[The prepared statement of Ms. Block follows:]
PREPARED STATEMENT
OF
SHARON BLOCK
Thank you Chairman Harkin, Senator Alexander, and members of the committee.
I am so honored and humbled to appear before you as a nominee to be a member
of the National Labor Relations Board.
I assure you that I fully appreciate the seriousness of your task in assessing my
fitness for the position for which the President has nominated me. I have spent a
fair amount of time in this roomsitting behind Senator Kennedy when I served
as Senior Labor and Employment Counsel to the committee or sitting in one of the
chairs just behind me in my role as Deputy Assistant Secretary of Labor for Congressional Affairs when Department witnesses testified here. I welcome the same
scrutiny of my nomination that I have witnessed in this room of others.
Watching the members of this committee do their work, I believe, prepared me
well for taking on the role of member of the National Labor Relations Board. My
experience working on the MINER Act for the committee has been particularly instructive for my tenure as a Board member. I first came to work for Senator Kennedy in the wake of the terrible Sago mine disaster. Senators Kennedy, Enzi, Murray, and Isakson recognized the urgency of the need to protect American miners and
told us, their staff, to get a bill done to improve mine safety.
I learned from participating in those negotiations many important lessons: the
value of considering the perspectives of all stakeholders; the necessity of finding
practical solutions that do more than sound good on paper; and the virtue of principled compromise. No Senator involved in the negotiations got everything he or she
wanted in the resulting legislation, but through your hard work, open dialogue, and
willingness to compromise you achieved a great bill that has made a difference for
workers and employers. I have tried to apply these lessons to my work as a Board
member.
My service as a long-time career attorney at the NLRB also has well-prepared me
for service as a Board member. I started my career representing management in
employment law matters at Steptoe and Johnson. I then came to the Board when
my career was still in a formative stage. At the Board, I learned from the most talented and dedicated government attorneys how to represent the public interest.
While I was fortunate to represent the Board in many high profile cases during
my earlier tenure at the Board, what made the biggest impact on me were the
smaller casesthe cases where the parties have no interest in making law or engaging in ideological debate. Instead, they are the cases where the Board, as a neutral
adjudicator, brings resolution to parties who just want to have their voices heard
and their views fairly considered.
These are the kind of cases that dominate the Boards docket today as in the past.
The overwhelming majority of cases I have participated in as a Board member
serving with both Democrats and Republicanshave been unanimous decisions that
applied long-standing precedent. The importance of these cases cannot be overstated. It is through these cases that the Board fulfills its mission of preserving industrial peace. We bring resolution and repose to the worker who seeks reinstatement after being unlawfully discharged. We affirm the right of an employer to move
forward in running his or her business when the facts show that a genuine impasse
in collective-bargaining negotiations exists so the bargaining process will continue.
As you know, there is no private right of action under the Act. Employees, employers and unions are dependent on the Board to ensure that the system for resolv-
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20
ing their disputes that Congress created works. So it is incumbent on us to move
all cases as efficiently and fairly as possible.
In my experience on the Board, with both Democrats and Republicans, we have
done so in a spirit of respectful collegiality. I discuss every case with the career attorneys on my staff, who have both management and labor experience. When I
served as senior counsel to former Board Chairman Robert Battista, I always appreciated the frank case discussions he not only allowed, but encouraged. I have continued that tradition with my staff. They know that as a former career attorney, I will
never underestimate the value of their contributions.
I would just like to add that being nominated and serving as a Board member
is the greatest honor of my professional life. I have been a public servant almost
all of my career. The longest span of my service has been as a career civil servant
with the Board. When I first came to the Board as a staff attorney, I never dreamed
that I would one day be a Board member. When the President asked me to serve,
I was surprised, humbled, and awed. This nomination means so much to me because
I believe that the mission of the Board means so much to the tradition of fairness
and dignity in the American workplace and that a fully confirmed Board is the best
way to honor and support that tradition.
In closing, I would like to thank two sets of people here who have been so important to me during the past 17 months. First, my colleagues Mark Pearce and Richard Griffin. The Board has had no finer members, and I am so grateful for the experience of serving with them, debating with them, and learning from them. I also
would like to thank my family who are here with me today, my husband, Kevin
Hovland, my children, Charlotte and Eli, my parents, Lois and Joseph Block, and
my uncle, Michael Fuchs, for all their love and support.
Thank you for the opportunity to offer these opening remarks. I welcome your
questions.
The CHAIRMAN. Thank you, Ms. Block, and we welcome you, and
we welcome all the members of your family who are here also.
Mr. Johnson, welcome again, and please proceed as you so desire.
STATEMENT OF HARRY I. JOHNSON III, MEMBER-DESIGNATE,
NATIONAL LABOR RELATIONS BOARD, PACIFIC PALISADES,
CA
Mr. JOHNSON. Chairman Harkin, Ranking Member Alexander,

and other members of this committee, thank you for the privilege
of my being with you here today and of being able to meet with
you, some of you previously, and your staffs. Id like to thank Senator Dorgan for his extremely gracious introduction. I would like to
thank President Obama for the great honor of this nomination.
And thanks finally to the folks sitting with me here at this table,
the three Democratic nominees and the other Republican nominee,
for their own personal courtesy to me as we move through this
post-nomination process together.
I would also appreciate the brief privilege of introducing you to
some people who are here with me today as well, my family. My
wife Monica, sitting a few rows back over my right shoulder, has
had an impressive career herself after graduating from Harvard
Law School. She served as a lawyer and a mediator, and then
chose to stay home to create a home for our family. I couldnt be
here before you today at this proceeding without her support.
I would like to introduce you to our 10-year-old daughter Sophia,
and our 8-year-old daughter Natalia, a few rows behind me again,
both impressive students, hard-working athletes, and most importantly to us, young people with kind and generous hearts.
I would like to introduce you to my parents, Captain Harry I.
Johnson, Jr., a retired enlistee in the Navy in World War II, served
on the USS Wisconsin as an electricians mate and then as a physician in the Naval Reserves, for a total of 43 years of service; and
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my mother Jolene Johnson, Lieutenant Commander retired, who
served in the Navy Nurse Corps for 21 years; and finally my brother Dr. Scott Johnson, an accomplished economist who came down
here from Boston today, and I had some friends come up from my
hometown of Roanoke, VA. And I thank them.
To the matter at hand, this is the second half of the most important job interview that I have ever had. Confirmation by the Senate is a crucial part of this process, and in the remaining time I
hope to give you a brief window into who I am and what I believe.
I am currently in private practice with the law firm of Arent Fox
LLP, founded in the District in 1942, with its founders having all
come from distinguished careers in government service. I work in
the firms Los Angeles office. My practice since I graduated from
Harvard Law School in 1994 has been in employment law, mostly
representing companies from the very large to the very small. It
has included a good deal of traditional labor law, including proceedings in unfair labor practice cases and representation cases before the National Labor Relations Board.
In the end, however, what I just told you is merely a list of relevant qualifications and achievements. For nomination to the
Board, beliefs are just as important. So let me tell you what I believe concerning the National Labor Relations Act.
The Board is one of the oldest Federal agencies, and thanks to
the hard work of its dedicated career staff, it serves an incredibly
important and multifaceted role in our country and its free enterprise system. I believe in free enterprise. But we cannot have a free
enterprise system without a system of labor law, just like we cant
have a free enterprise system without property law or contract law.
I believe that the Board must serve as an honest broker when it
decides labor law cases and should never pick winners and losers
based on ideology rather than the law.
In my mind, the Board should always remember that if goodfaith employers cannot operate because of a regulatory environment that suffocates their ability to create economic success, then
there will not be jobs, there will not be employees, and ultimately
there cannot be viable labor unions. I think we would all be saddened, and justifiably saddened, at such a result.
We cannot choose the times in which we live, and I did not
choose the time back in July of last year when someone would call
and ask me to serve my country in this capacity. If I could have
chosen, I would have preferred my potential service on the Board
to come at a time when the agency was not enmeshed in profound
constitutional and political disagreements, but here we are, and
here I am because I said yes.
If confirmed, I would translate that yes into working as hard as
I could that we have a functioning Board fairly adjudicating the
important issues that come before it. To paraphrase Winston
Churchill, I can only give the American people my blood, toil, tears,
and sweat, and nearly two decades of salient experience. But if confirmed, I will give you the full measure of all my efforts in serving
as a guardian of the Act and all it represents.
Thank you, and I look forward to answering all of your questions.
[The prepared statement of Mr. Johnson follows:]
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PREPARED STATEMENT
OF
HARRY I. JOHNSON III
Chairman Harkin, Ranking Member Alexander, and other committee members,

thank you for the privilege of being here with you today and of allowing me to meet
previously with some of you and your staff members.
Senator Dorgan, thank you also for such a gracious introduction. Thanks, finally,
to the three Democratic nominees and the other Republican nominee for their personal courtesy to me as we moved through the post-nomination process together.
I would also appreciate the privilege of briefly introducing you to some people
whom I would like to thank as well. I would like you to meet my wife Monica, sitting here behind me, who has had an impressive career in her own right from Harvard Law School through private practice as a lawyer and mediator, and then who
chose to create a home for our family. I could not be before you here today without
her support. I would like to introduce the committee to our 10-year-old daughter,
Sophia, and 8-year-old daughter, Natalia. They are both impressive students, hardworking athletes (especially at basketball), and most importantly to us, young people with kind and generous hearts.
I would like to introduce you to my parents, Captain Harry I. Johnson, Jr. (retired) who enlisted in the Navy in World War Two, served on the USS Wisconsin
as an electricians mate and later in the Naval Reserves as a physician for a total
of 43 years, and my mother Jolene Johnson, Lieutenant Commander (retired), who
served in the U.S. Navy Nurse Corps for 21 years. And I would like to introduce
you to my brother, Dr. Scott Johnson, an accomplished economist.
They have all been my constant guidance and inspiration. Finally, I thank my
friends who have traveled here from my hometown of Roanoke, VA to attend today.
This is the second half of the most important job interview that I have ever had.
Confirmation by the Senate is a crucial part of this process, and with my remaining
time, I hope to give you a brief window into who I am and what I believe.
I am currently in private practice with the law firm of Arent Fox LLP, founded
in the District in 1942, with its founding partners having come from distinguished
careers in government service. I work in the firms Los Angeles office. My practice
since I graduated from Harvard Law School in 1994 has been in employment law,
mostly representing companies, from the very large to the very small. That has included a good deal of traditional labor law, representing employers in both adversarial proceedings and representation cases before the National Labor Relations
Board.
In the end, however, that is merely a list of relevant achievements and qualifications. For a nomination to the Board, beliefs are just as important. Let me tell you
what I believe concerning the National Labor Relations Act.
The Board is one of the oldest Federal agencies, and thanks to the hard work of
its dedicated career staff serves an incredibly important and multifaceted role in our
country and its free enterprise system. I believe in free enterprise. But we cannot
have a free enterprise system in a modern America without labor law, just like we
cannot have a free enterprise system without property law or contract law. I believe
that the Board must serve as an honest broker when it decides labor law cases and
should never attempt to pick winners and losers based on ideology rather than the
law. In my mind, the Board should always remember that if good faith employers
cannot operate because of a regulatory environment that suffocates their ability to
create economic success, then there will not be jobs, there will not be employees,
and ultimately there cannot be viable labor unions. I think we would all be justifiably saddened by those results.
We cannot choose the times in which we live. And I did not choose the time
back in July of last yearwhen someone would call and ask me to serve my country
in this capacity. If I could have chosen, I would have preferred my potential service
on the Board to have come at a time when the agency was not enmeshed in profound constitutional and political disagreements. But here we are, and here I am,
because I said yes. If confirmed, I would translate that yes into working as hard
as I could that we have a functioning Board fairly adjudicating the important issues
coming before it. To paraphrase Winston Churchill, I can only give the American
people my blood, toil, tears and sweat, but that is exactly what I will give you, along
with nearly two decades of salient experience. Thank you and I look forward to answering all of your questions.
The CHAIRMAN. Thank you very much, Mr. Johnson.

Mr. Miscimarra, again, welcome, and please proceed.
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STATEMENT OF PHILIP ANDREW MISCIMARRA, B.A., MBA, J.D.,
MEMBER-DESIGNATE, NATIONAL LABOR RELATIONS BOARD,
HINSDALE, IL
Mr. MISCIMARRA. Thank you. Chairman Harkin, Ranking Member Alexander and other committee members, thank you for the opportunity to testify today. Senator Alexander, thank you for your
introduction.
My wife Mary Lynn and my three sons, Andrew, Joseph and
Eric, are here today, also seated behind me, and Im grateful to
have their support. If Im confirmed, they will be making their own
sacrifice in the interest of public service similar to the sacrifices
made by your own family members.
I also appreciate President Obamas nomination. For a labor lawyer, there is no higher honor than being considered for the National Labor Relations Board. The Board deals with rights that are
important to nearly everyone, affecting whether and how people
can work to support their families or run successful businesses,
with a big impact on communities and State and local governments.
For me, these have never been abstract concepts. I grew up in
Pittsburgh, PA. My father was the son of Italian immigrants and
he worked for the city of Pittsburgh. My brother Tony spent a summer working in a steel mill. I began work at age 14 as a caddie.
I worked in a movie theater. Then I got a job at the local Carnegie
Library in Pittsburgh. For many years I worked as a musician represented by Local 6471 of the American Federation of Musicians.
In my family, I learned firsthand about keeping an open mind regarding labor-management issues. At one point, my mother was a
member of the Pittsburgh Public School Board. My older sister Pat,
while living at home, was a Pittsburgh public school teacher who
participated in a 57-day strike that kept 62,000 students from
going to school. The affected students included my younger sister
Julie, whose high school graduation was jeopardized by the dispute.
The teachers picketed every day. Some teachers, my older sisters
friends, regularly came to our house. They put their picket signs
outside with the signs facing the street, and everybody came inside
where my mother invariably made them breakfast or served them
coffee in the kitchen. Everybody was treated with respect, and nobody was forced to abandon their very different, strongly held opinions.
I have applied the same principles while representing employers
and dealing with unions and employees for 30 years. I have advanced clients interests by focusing on substantive issues and
working to foster constructive relationships with opposing counsel
and unions. I have lived in the Chicago area for most of my career,
since 2005 as a partner with Morgan Lewis and Bockius. I have
also had the good fortune of being affiliated for over three decades
with the Center for Human Resources at the University of Pennsylvanias Wharton Business School in Philadelphia.
If Im confirmed, three things would guide my service on the
Board. First, I have great respect for the years of work done by
Congress and by this committee which produced the National
Labor Relations Act, including the Acts amendments. If confirmed,
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I will remember that labor law policy originates with Congress, not
with members of the NLRB.
Second, Board members come and go. But if confirmed, I will do
everything I can to recognize the Boards many career professionals
and staff members who do much of the Boards hard work and contribute so much in their public service.
Finally, labor lawyers operate in a world where it can be difficult
to find common ground. I embrace the reality that parties and
often Board members can have sharp disagreements and strongly
held views. Former Chairman John Fanning stated the one factor
every NLRB case has in common is the presence of at least two
people who see things completely different. I respect everyone who
has served or is willing to serve on the Board. Regarding some policy issues, my fellow nominees and I may not always agree. If confirmed, I will approach every decision with an open mind. I will
share my opinions in a constructive way. I will try to forge agreements with fellow Board members, I will be open to differing views.
Above everything else, I will do my best to discharge the responsibility placed on every NLRB member, which is to apply the law
as written consistent with what Congress intended. I recognize the
Senate and this committee must carefully evaluate every nominee,
and that includes myself. It is a privilege to be here. I look forward
to the committees questions. Thank you.
[The prepared statement of Mr. Miscimarra follows:]
PREPARED STATEMENT
OF
PHILIP ANDREW MISCIMARRA, B.A., MBA, J.D.
Chairman Harkin, Ranking Member Alexander, and other committee members,

thank you for the opportunity to testify today.
My wife, Mary Lynn, and my three sonsAndrew, Joseph and Ericare seated
behind me. I am grateful to have their support, and if I am confirmed, they will
be making their own sacrifices in the interest of public service.
I also appreciate President Obamas nomination. For a labor lawyer, there is no
higher honor than being considered for the National Labor Relations Board (NLRB).
The Board deals with rights that are important to nearly everyone: affecting whether and how people can work, support their families, or run successful businesses,
with a big impact on communities and State and local governments.
For me, these have never been abstract concepts. I grew up in Pittsburgh, PA.
My father was the son of Italian immigrants, and he worked for the city of Pittsburgh. My brother, Tony, spent a summer working in a steel mill. I began work at
age 14 as a caddy, I worked at a movie theater, then I got a job at the local Carnegie Library. For many years, I worked as a musiciana pianist, arranger, and
musical directorrepresented by Local 60471 of the American Federation of Musicians.
In my family, I learned first-hand about keeping an open mind regarding labormanagement issues.
At one point, my mother was a member of the Pittsburgh Public School Board;
my older sister, Patwhile living at homewas a Pittsburgh Public School teacher
who participated in a 57-day strike that kept 62,000 students from going to school;
and the affected students included my younger sister, Julie, whose high school graduation was jeopardized by the dispute.
The teachers picketed every day, and some teachersmy older sisters friends
regularly came to our house, they put their picket signs outside (facing the street),
and everybody came inside where my mother made them breakfast or served them
coffee in the kitchen. Everyone was treated with respect. And nobody was forced to
abandon their very different, strongly held opinions.
I have applied these same principles while representing employersand dealing
with unions and employeesfor 30 years. I have advanced clients interests by focusing on substantive issues and working to foster constructive relationships with
opposing counsel and unions.
I have lived in the Chicago area for most of my careersince 2005, as a partner
with Morgan Lewis & Bockius LLP.
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I have also been affiliated, over three decades, with the Center for Human Resources at the University of Pennsylvanias Wharton Business School in Philadelphia. My Wharton work has included research and writing, including three books
about the NLRB. Rather than choosing sides, my books are directed to practitioners
on all sides by summarizingand hopefully making it easier to understandthe
sometimes complicated legal principles developed by the Board and the courts.
If I am confirmed, three things would guide my service on the Board.
First, I have great respect for the years of work done by Congressand by this
committeewhich produced the National Labor Relations Act (NLRA) including the
Acts amendments. If confirmed, I will remember that labor law policy originates
with Congress, not with members of the NLRB.
Second, Board members come and go, but, if confirmed, I will do everything I can
to recognize the Boards many career professionals and staff members who do much
of the Boards hard work and contribute so much in their public service.
Finally, labor lawyers operate in a world where it can be difficult to find common
ground. I embrace the reality that partiesand, often, Board memberscan have
sharp disagreements and strongly held views. Former Chairman John Fanning
served on the Board under Democrats and Republicans, and he stated:
As someone who . . . participated in some 25,000 decisions of the Board, I
can assure you that the one factor every [NLRB] case has in common . . . is
the presence of at least two people who see things completely different. 1
I respect everyone who has served or is willing to serve on the Board. Regarding
some policy issues, my fellow nominees and I may not always agree. If confirmed,
I will approach every decision with an open mind, and I will share my opinions in
a constructive way. I will try to forge agreements with fellow Board members, and
I will be open to differing views. Above all, I will do my best to discharge the difficult and delicate responsibility placed on every NLRB member,2 which is to apply
the law as written, consistent with what Congress intended.
I recognize that the Senate and this committee must carefully evaluate every
nominee, including myself. It is a privilege to be here, and I look forward to the
committees questions. I ask to have an extended version of my opening placed in
the record.
Thank you.
The CHAIRMAN. Thank you, Mr. Miscimarra, and I welcome you

and your family members who are all here also.
Thank you. I think just from listening to all of you and reading
your testimony, I think it is clear that every single one of you is
eminently qualified for this position, no doubt in my mind.
We will start a series of 5-minute questions.
My first question is for Mr. Pearce. I want to ask that, despite
the Boards important role in creating industrial peace I just discussed and others have discussed, it has come under increasing attack in the last several years. Most recently, concerns have been
raised about the legitimacy of the National Labor Relations Boards
continued operations following the D.C. Circuit Court decision in
the Noel Canning case. While the D.C. Circuit itself acknowledged
that its decision in this matter was in conflict with three other circuit courts of appeals, and despite the fact that the case has been
appealed to the Supreme Court, some of my colleagues have argued
that the Board should have shut down in the wake of the decision.
Chairman Pearce, why do you feel the Board can continue to operate after the Noel Canning decision was issued?
Mr. PEARCE. Thank you, Chairman. In addition to the points that
you have made, there is also the fact that historically the NLRB
has functioned in the wake of constitutional challenges. We were
1 John Fanning, The National Labor Relations Act: Its Past and Its Future, in William
Dolson and Kent Lollis, eds., First Annual Labor and Employment Law Institute 59, 63 (1984),
quoted in Matthew M. Bodah, Congress and the National Labor Relations Board: A Review of
the Recent Past, 22 J. LAB. RES. 699, 713 (Fall 2001).
2 (NLRB v. Ins. Agents Intl Union, 361 U.S. 477, 499 (1960), quoting NLRB v. Truck Drivers
Local 449, 353 U.S. 87, 96 (1957)).
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born of controversy. In 1935 through 1937, our legitimacy was challenged in the courts. We continued to function. And when the Supreme Court finally decided the issue, we still had managed to
serve the public.
But most importantly, we owe it to the public to continue to
work. Every day the Board provides a forum for workers, employees, employers, and unions to come forward and to air their issues.
This forum ensures that economic security is provided and protected from industrial unrest. There is no private right to action,
as has been said several times. The NLRB is the only forum. It is
the only recourse that a lot of people have.
The statute of limitations for unfair labor practices continues to
run. Obligations under the National Labor Relations Act are not
suspended while litigation goes on over the issue of whether or not
the Boards composition is correct. And such issues hold no countenance for a person who has lost their job because they wanted
to join a union and they are about to lose their home. It does not
hold any consequence for an employee or worker who was being
discriminated against by a union because they are not a member
of a union.
The CHAIRMAN. Before my time runs out, I want to ask Mr. Griffin and Ms. Block a followup to that. Some have suggested, in fact
requested, that you resign from your positions because of the Noel
Canning case. Since that is on appeal, I have often thought that
was an Alice in Wonderland approach, first the sentence, then the
verdict. I just wonder if you have any comment on why you feel
that you can continue to function in light of the Noel Canning case.
Mr. Griffin.
Mr. GRIFFIN. Well, Chairman Harkin, you have indicated the
conflict that the D.C. Circuit expressed with the other circuits and
its own decision in Noel Canning with respect to the issue of intrasession versus inter-session appointments arising during the recess
questions. So there is a conflict under our system. The Supreme
Court decides the conflict. The Solicitor General on our behalf has
asked the Supreme Court to resolve the matter.
I was appointed and asked to serve. I took an oath to serve, and
under the circumstances, since the Supreme Court had not rendered a final judgment on the constitutional question, and for all
the reasons that the Chairman indicated in terms of the important
work that we do, I felt it was very important to continue to do the
important work of the Board that I took an oath to do.
The CHAIRMAN. Ms. Block, do you have anything to add, why you
feel you should continue to serve rather than resign?
Ms. BLOCK. Thank you, Chairman. I appreciate the opportunity
to address that, and I certainly agree with everything that my colleagues have said.
The public that we serve relies on us to give them a fair hearing
and to bring resolution. So in thinking about how I could best uphold my oath that I took to do that and to protect the institution
of the Board, as my colleagues have said, I thought it was incumbent upon me to continue to provide that service while these issues
were worked out in the litigation. I want to share with you a little
bit of what my thought process was quickly.
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I thought about some of the people who had brought their cases
to us during the year. We know that during the past year and a
half, while these issues have been percolating, employers have continued to consent to elections, parties have continued to settle cases
with us. Parties have also not filed petitions for review when we
have issued decisions.
So when I thought about some of those people who brought cases
to us, I thought about a discriminatee in a case, Carrie Salt. The
employer we found, in a bipartisan, unanimous decision of the
Boardit was Member Hayes, Member Griffin, and myselfthe
employer had engaged in bad-faith bargaining. They just came to
the bargaining table, didnt really want to come to an agreement,
and then started unlawfully imposing unilateral actions on the employees throughout seniority. As a result of this unlawful action,
there was a 73-year-old employee who had worked for the employer
for 42 years who, as a result of these unlawful actions, was forced
to change his job from being a truck driver on the surface of the
mine to working 11-hour shifts underground.
He came to us because he wanted a fair hearing, and he wanted
some resolution. When I thought about him and people like him
who rely on the Board, in light of the circumstances, the ongoing
litigation, I felt the best way that I could fulfill the oath that I took
when I accepted this job was to continue to function.
The CHAIRMAN. Thank you both very much. My time is obviously
out.
Senator Alexander.
Senator ALEXANDER. Thanks, Mr. Chairman.
This morning, the Third Circuit Court of Appeals issued a decision concluding that an NLRB panel lacked the requisite number
of members to exercise the Boards authority, because one panel
member was invalidly appointed during an intra-session break.
We have yet another circuit that agrees with the D.C. Circuit,
and is consistent with the decision of the D.C. Circuit, that recess
appointments are supposed to be made during recesses. Otherwise
we have a situation where the President can just ignore Article I,
the principal curb upon the power of the executive.
I would observe also that while I agree its better to have a
quorum, its better to have five members, and Ive said in my earlier remarks that I admire the qualifications of all five of the individuals here, that my problem is with continuing to serve after
such an unprecedented lack of respect for the prerogatives of Congress and the separation of powers.
In the meantime, even if there werent a quorum, the NLRB
would still be able to function. The NLRB could investigate unfair
labor practices, prosecute unfair labor practices, and conduct elections. Administrative law judges could adjudicate unfair labor practices. The General Counsel could issue memoranda. So there are a
number of actions the NLRB can continue to take while matters
are resolved.
You have to balance, it seems to me, the confusion that is going
to be caused when hundreds of cases are vacated, or subject to
being vacated, when it is decided that the Board decides so many
cases without a quorum.
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The chairman noted that there are strong passions, that sometimes people on the Republican side wish the NLRB werent, I
think you said, its progress if it werent in session.
There are strong passions on the other side, too. I would ask to
put in the record a New York Times article from 2007. It talks
about how the union leaders discontent with the labor board had
grown so intense that several hundred union sympathizers demonstrated in front of the NLRB headquarters, chanting shut it
down for renovations.
[The article referred to can be found in Additional Material.]
And so they would be happy if the board did nothing until a
Democrat was in the White House. And Senator Reid, the majority
leader at that time, said that the Senate was considering holding
pro forma sessions of the Senate to prevent President Bush from
naming Mr. Battista as a recess appointment. Senator Reid then
did that, and President Bush respected the Senates own decision
about when it was in session and when it was not.
Mr. Pearce, I have a question for you, if I may, about the Excelsior list. During an organizing campaign, the current law requires
employers to provide union organizers with a list of employee
names and home addresses. This is called the Excelsior list.
You led a regulatory effort to expand that requirement to include
telephone numbers, email addresses, employee work locations,
shifts, and job classifications. I would think a lot of employees
wouldnt want all of that personal information shared without their
consent and wouldnt want to be harassed about whether or not to
join a union.
If you are confirmed, will you continue to pursue this broad expansion of information that started with only names and addresses? Wasnt that rule adopted at a time when there werent so many
other pieces of personal information? A name and address was one
piece of information, but now you are asking for email addresses,
telephone numbers, work locations, shifts, and job classifications.
Are you going to continue to insist on that? And if you are, why
wouldnt you allow employees to at least opt out of providing that
kind of personal information?
Mr. PEARCE. Thank you, Senator.
Currently, the boards regulation asks for the Excelsior list, requires the Excelsior list, and that was pursuant to a decision that
is decades old.
Senator ALEXANDER. Right. Before the Internet invaded our privacy.
Mr. PEARCE. Of course. Of course.
We all are creatures or victims of technology. The National Labor
Relations Board evolves with the technology. Otherwise, it couldnt
effectively enforce the act.
In so doing, it is appropriate and responsible for us to look at the
technological advances that are typical in the communication between workers and between employers.
Senator ALEXANDER. So you have to have a list of employees
email addresses to keep up with modern technology?
Mr. PEARCE. What I am saying, Senator, is that
Senator ALEXANDER. Yes or no?
Mr. PEARCE. I cant answer that yes or no.
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Senator ALEXANDER. Good. Maybe there is progress here.
Mr. PEARCE. What I am saying is that all of that has to be evaluated and taken into consideration. There is a proposal that has not
become a rule that is under consideration by the Board as to what
would be appropriate in this day and age for fair and equal contact
of employees.
Now, there are cases that we have decided with respect to unfair
and unreasonable harassment. And if those circumstances come up,
those things would be addressed.
But right now, Excelsior Underwear is the regulation. How we
evolve from that remains the consideration of the Board.
Senator ALEXANDER. Thank you for your answer. And I hope the
Board will think of privacy, as well as technology.
The list I have is Senator Murray, Senator Isakson, and Senator
Casey, Senator Scott, and Senator Baldwin, and then Senator Warren.
Senator Murray.
STATEMENT
OF
SENATOR MURRAY
Senator MURRAY. Mr. Chairman, thank you very much for holding this hearing. This is not a routine hearing by any stretch of the
imagination. This is a hearing very much about the vision and future of our country. Its a hearing about whether we believe the
laws of our country that protect workers and employers alike
should be enforced. It is a hearing about the future opportunities
we have to have good jobs in our economy, protect our shrinking
middle class, providing opportunities for workers to improve their
conditions, and ensuring smooth relations between workers and
employers to make sure that we have an efficient operation of our
economy.
I have heard some claim that this is a hearing about our unions.
But that is inaccurate, because the NLRB and its rulings protect
all private sector workers in the American workplace, regardless of
whether they are in a union, for exercising their rights.
And those rights have led to many significant improvements
across our economy: higher pay and better benefits, safer working
conditions, fewer injuries and death, and the strongest economy in
the world.
Its no shock that as collective bargaining and the unionization
rates have declined, wages have stagnated, and income inequality
has arisen, and our economy has struggled. And its noteworthy
that many of these problems arose about the same time that a prolonged attack on the NLRB commenced.
For well over 30 years now, the normal process of nominating
and confirming board members has been nonexistent. Partisan
blocking of nominees has now largely prevented this Board from
operating on a routine basis and has made enforcement of worker
rights very difficult.
For 35 years, recess appointments have become all too routine.
And for nearly 30 years, the Senate has been forced to regularly
consider packages of nominees in order to get any nominees on the
Board.
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This is no way to run an agency. And I suspect that is exactly
why we are where we are now.
Many people just dont want the NLRB to function at all. But I
worry about what that says about our values and what will happen
to our economy and our society if we allow that to happen, where
workers rights are protected, where there is one fewer check on
rising income equality, and where individuals are increasingly left
on their own in an economy that is very indifferent to those without protections.
That is why I believe it is really important, Mr. Chairman, that
we move to act quickly, approve this package of five nominees, not
because I agree with each and every one of them individually. I
have some concerns about some of the individuals. But I dont deny
at all that they are all qualified and experienced and can and
should serve.
And I thank each one of you for your willingness to do this.
I hope that we can move quickly to this. And I will just ask a
series of questions, if you can each just respond yes or no.
First of all, do you agree that the Senate should consider your
nominations as a package?
Mr. PEARCE. Yes.
Mr. GRIFFIN. Yes.
Ms. BLOCK. Yes.
Mr. JOHNSON. I would like to say that the political and constitutional questions are way above and beyond my purview. I can only
represent myself.
If I were a Senator, I would confirm me.
[Laughter.]
Mr. MISCIMARRA. I wouldnt presume to advise the Senate with
respect to how they should address these nominations.
I will say that the fellow nominees, all of them, have been very
gracious in my dealings with them. I would be willing to serve on
the Board with any nominees that the Senate would choose to confirm.
Mr. JOHNSON. That goes for me as well.
Senator MURRAY. Good. Then I will just ask you directly: Do you
agree that each of the nominees sitting at the table this morning
is highly qualified to serve and deserves to be considered as part
of a package?
Mr. PEARCE. Yes.
Mr. GRIFFIN. Yes.
Ms. BLOCK. Yes.
Mr. JOHNSON. I have no doubt as to all the nominees qualifications.
Mr. MISCIMARRA. I agree.
Senator MURRAY. Very good.
And if confirmed, will each of you pledge to meet the highest
standards of integrity, professionalism, and objectivity?
Mr. PEARCE. Certainly.
Mr. GRIFFIN. Yes.
Ms. BLOCK. Absolutely.
Mr. JOHNSON. Of course.
Mr. MISCIMARRA. Yes.
Senator MURRAY. All right.
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If confirmed, does each of you agree that your job is to apply existing law and congressional intent first, and to recognize that
while each of you brings different experiences and background, to
not allow your personal biases to interfere with your impartial application of the law?
Mr. PEARCE. Yes.
Mr. GRIFFIN. Yes.
Ms. BLOCK. Yes.
Mr. JOHNSON. Of course, squared.
Mr. MISCIMARRA. Yes.
Senator MURRAY. Mr. Chairman, I think that says very specifically to us as a committee that this is a group that is highly qualified and that we should move forward as a package to confirm.
I would just add one thing, and that is I spoke a minute ago
about the growing income inequality. Pay equity is a very important tool for American women to help close the income gap. I want
to submit for the record a letter from 30 organizations concerned
about what women are paid and pay equity, and are calling for a
smoothly functioning NLRB. And it says why we need to move all
five nominees quickly and confirm them.
The CHAIRMAN. Without objection, we will include those.
[The information referred to can be found in Additional Material.]
The CHAIRMAN. Senator Isakson.
STATEMENT
OF
SENATOR ISAKSON
Senator ISAKSON. Thank you, Mr. Chairman.

Welcome to all of the nominees.
Chairman Pearce, thank you for your service. I have a question
for you.
Under your leadership as chairman, or during your term as
chairman, why did the NLRB undo decades of precedent in the
Specialty Healthcare decision?
Mr. PEARCE. Specialty Healthcare was a decision involving certified nursing assistants. These were 53 certified nursing assistants
that wanted to unionize to form their own bargaining unit without
having people in the cafeteria or people in other areas of the facility that had nothing to do with their jobs be included in the unit.
What we did do was apply traditional standards to assessing
what an appropriate unit is.
It has been a tenet of the law that we determine an appropriate
union, not the most appropriate unit. And these 53 people were
just that.
The National Labor Relations Boards decision was consistent
with assessments of what would be an appropriate bargaining unit
where were consistent with what the courts have considered. The
D.C. Circuit in Blue Man Vegas made the determination that our
assessment and the factors that we take into consideration were
the correct ones.
Senator ISAKSON. Then let me ask you this question, taking the
term appropriate, which were the words that you used, that you
considered, your regional director, following that decision, ruled
that the second and fifth floor shoe departments of Bergdorf Good-
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man could form a union. Was that appropriate, in the same context
that the Specialty Healthcare was?
Mr. PEARCE. The assessment, again, was whether or not there
was a sufficient community of interest to constitute a bargaining
unit.
The median bargaining unit in this country is 27 employees. The
Bergdorf Goodman group was much larger than that. So if nothing
else, we remained consistent with what the median has been in
this country.
Senator ISAKSON. But is it appropriateexcuse me, I dont want
to lose all my timeis it appropriate, in the sense of common
sense, to allow micro-unions within a single establishment, to have
multiple unions that you have to deal with in terms of all negotiations, the limitation that puts on cross-training for employees to
serve in different departments within the same building, in the
same unit?
It seems to me, taking the Specialty Healthcare decision, if appropriate, and applying it to a retail establishment with a plethora
of different departments within it, and saying each one of them can
organize and bargain as a unit, is counterproductive to consistency,
customer service, and the health of the environment in which the
people live and work.
Mr. PEARCE. This is all fact specific. Each case is assessed based
on its particular facts.
For example, we decided a case in Home Depot where we determined, using that same Specialty Healthcare standard, that a unit
of the entire staff of employees was the appropriate unit. Furthermore, employers have used Specialty Healthcare to assess whether
or not their petitions for units have been correct.
One case, Odwalla, which was a petition for a group of employees
that carved out another set of employees, it was the employer who
cited Specialty Healthcare for the proposition that there was an
overwhelming and community of interest between the excluded employees and those that had been included in the unit, and we
agreed with them.
Senator ISAKSON. Thank you for your answer.
Mr. Griffin, let me ask you a question, and I guess Ms. Block as
well. And thank you for your comments in your statement about
the MINER Act. You did outstanding work, as did Senator Murray
and Senator Kennedy and Senator Enzi, on that piece of legislation.
You both were publicly nominated for your position in December
before the January appointment, is that correct?
Mr. GRIFFIN. That is correct, Senator.
Senator ISAKSON. As I understand it, the paperwork had not
even gotten to the committee to go through the confirmation process by January 4, when you were appointed in a recess appointment, is that correct?
Mr. GRIFFIN. I dont know what the status of the paperwork was,
Senator. We had completed all the forms that we were responsible
for when we were nominated.
Senator ISAKSON. I think I am correct in both of those statements. Assuming that I am, do you know of any reason why the
President chose, when he could have waited 10 more days and gone
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through the regular order, to go ahead and make a recess appointment on January 4, given the fact you had been nominated on the
11th of December?
Mr. GRIFFIN. Senator, I was not consulted by the President with
respect to his exercise
Senator ISAKSON. You wouldnt know one way or another.
Mr. GRIFFIN. But the one thing that I will point to is that, because member Beckers appointment was up January 3, the Board
could not function. It was down to only two Board members.
So in order for the Board to function, it was necessary for the
President to act, so that there would be a sufficient number of
Board members to process the Boards business.
Senator ISAKSON. Other than that reason, Ms. Block, do you
know of any reason why they would move ahead and expedite the
appointment?
Ms. BLOCK. No. Like member Griffin, I wasnt consulted about
the decision.
Senator ISAKSON. OK.
The CHAIRMAN. Senator Casey.
STATEMENT
OF
SENATOR CASEY
Senator CASEY. Mr. Chairman, thank you very much.

I want to thank all of the nominees for your willingness to serve,
your appearance here, and of course the commitment and sacrifice
of your families. We are grateful for that.
I think in this hearing and throughout what will be a long debate about these issues, it is instructive, and I think, more than
that, essential to recall at least two eras of our history. One, the
bad news, the before; and then the good news, the afterbefore
and after the National Labor Relations Act was enacted.
The bad news played out in my home State of Pennsylvania in
ways that probably no other State can match, unfortunately for
Pennsylvania, where you had for decades, for generations, awesome
corporate power that didnt allow workers to haveforget having
a uniondidnt allow them to have basic rights and would grind
people into the pavement on a regular basis.
That was the history of our State. Homestead in Pittsburgh is
one example of that.
I grew up in northeastern Pennsylvania, where anthracite coal
miners lives were completely dominated by a company, the kind of
low-wage servitude which we cant even imagine today.
That was the history prior to the enactment of the National
Labor Relations Act.
The good news is the country took a turn in the right direction
after a lot of struggle and a lot of blood and literally people dying.
Chairman Harkin was mentioning before about the declared policy in the act itself. The declared policy of the United States, to
eliminate the causes of certain substantial obstructions to the free
flow of commercethe free flow of commerceand to mitigate
and eliminate these obstructions, and it goes on from there.
Earlier in the findings, it says this,
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Experience has proved that protection by law of the right of
employees to organize and bargain collectively safeguards commerce
Commerce, I will say it again,
from injury, impairment, or interruption, and promotes the
flow of commerce by removing certain recognized sources of industrial strife and unrest.
And it goes on from there.
When we talk about the Act, when we talk about the Board that
carries out the requirements of the Act, we are talking about commerce. We are not talking about one side being favored over the
other.
I think it is important that we remember that. We should also
remember, I think, the history of some of our Presidents. We have
had Democratic and Republican Presidents using recess appointments for a generation at least.
In fact, if you look at the record, whether it was an intra-session
recess appointment or inter-session, every President since Reagan
has recess appointed a member to the Board.
Ronald Reagan made 240 recess appointments. Bill Clinton made
139. George W. Bush, 171. And George H.W. Bush, 74.
So as we debate this, we should remember our history and make
sure that we dont go in the direction where we were at the turn
of the last century. Unfortunately, we have been taking a turn in
that direction lately.
What are we confronted with now? Today we have a conflict
about the National Labor Relations Board. It is a political conflict.
Some might call it an ideological conflict.
What we dont need nowthe last thing we need here in Washington or across the countryis more rancor, more division, more
ideology, at a time we need this Board fully functioning. We need
five people to get confirmed here.
Any Senator who is standing in the way of getting five people
confirmed and having a functioning Board has a lot of explaining
to do, certainly in light of that history, but also in light of the urgency of today, which is to have the free flow of commerce and the
jobs that come from that.
We have a lot to cover, and I know my time is just about over,
but I will submit some questions for the record. But I do want to,
first of all, thank the first person Ill question, and then Ill submit
other questions, Mr. Miscimarra, for your mentioning of various
parts of Pennsylvania, but more importantly growing up in Pittsburgh and having a lot of education in Philadelphia.
I want to thank you especially for the words in your statement
about common ground, about being open and having an open mind.
And I would ask you, in the context of that, and I know we are
short on time, I would just ask a very specific question about the
Board itself. Do you support the Boards rulemaking authority?
Mr. MISCIMARRA. The Act specifically authorizes the Board to engage in certain types of rulemaking. The Board is engaged
Senator CASEY. Give me a yes or no to that, and then, of course,
you can
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Mr. MISCIMARRA. I do, and I believe any consideration of rulemaking, if I were concerned, would depend on a couple of things.
It would be a careful consideration of the need for the rule, also
the authorization in the Act for any rulemaking, the content of any
rule, and the process adhered to or followed by the Board for purposes of getting input and otherwise complying with the requirements of the Administrative Procedures Act.
Senator CASEY. I have more questions, but I am way over time
now.
The CHAIRMAN. Thank you, Senator.
Senator Scott.
STATEMENT
OF
SENATOR SCOTT
Senator SCOTT. Thank you, Mr. Chairman.

Thank you all for taking the time to meet with me this week.
And certainly, this is a time in our history when public service is
not necessarily as comfortable as it used to be, so I truly appreciate
your willingness to continue to serve.
And while we will obviously have some disagreements with our
questions, our goal is to make sure that we continue to find the
ability to have our economy firing on all cylinders.
When I think about the recent days, it seems to me that the rule
of law has been under attack. We have seen in the news the IRS.
We have seen the AP phone records scandal. The HHS. And these
issues have undermined the confidence the American people should
have in their government.
And when I think about the NLRB over the past few years, this
seems to be a Board that has been about picking winners and creating losers through its decisions in the two rules.
The NLRB should be a neutral arbitrator, an impartial and unbiased board protecting the rights of both the employers and employees. But instead, the Board has become an activist board, from my
perspective.
Several examples of such, when we look at things like the rule
on deducting union dues even after the agreement has ended, it appears to me that there is a theme that suggests that we are no
longer looking at an impartial board, but a board that has within
its intent the desire to create an outcome. Forcing employers to
continue to deduct union dues after a bargaining agreement has expired seems to me to overturn 51 years of precedents.
The second issue that we just discussed was the case of microunions. As few as two employees with the same classification having an opportunity to form a union seems to strip away some of the
opportunities and the authority of the employers.
I think of, specifically, the Northrop Grumman Shipbuilding,
where 223 technicians out of 2,400 employees formed what I would
consider a micro-union. This is troublesome, from my perspective.
The third example is the courtesy work rules. I think that was
the case where a motor company, Knauz Motors, Inc., had a courtesy rule that was struck down. This was, to me, just a common
sense rule.
As a former employer, I will tell you that this is just mind-boggling, from my perspective. I read what the rule was:
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Courtesy is the responsibility of every employee. Everyone is
expected to be courteous, polite, friendly to our customers, our
vendors, our suppliers, as well as to their fellow employees. No
one should be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.
The Board found this to be unlawful, continued that employees
would reasonably believe that this prohibits statements of protest
or criticism of the employer.
That, to me, just boggles the mind, when in fact, a common-sense
courtesy rule has been the practice forever in business. You want
your employees to be as courteous as possible. Yet that simple rule
was struck down and found to be unlawful.
I think of the notice of posting rule that requires the display of
posters making sure that employees know that they can join
unions. It would seem that if you were looking for a balanced approach, not picking winners or losers, you would have a poster that
said that you could decertify a union as well.
A fifth example would be the ambush or the quickie elections. We
see the average election, I understand, takes 38 days. And yet,
with the ambush elections, we whittle it down to 10 days. That
does not provide the employer or the employee to go through the
process of making a sound decision.
And finally, I know this is not a case that the NLRB, the Board
itself, decided on, but without question, when you look at the opportunity to create a better economy, without any question, you
look no further than the Boeing case when the general counsel
made a decision to try to shift jobs away from one State to another
State.
My question to you is, how can we expect the Board to return
to being a neutral arbitrator when there are so many examples of
anything but an impartial application of the law?
Mr. Pearce.
Mr. PEARCE. Thank you.
I respectfully disagree with the premise of your question that we
are not a neutral arbitrator. We have been a neutral body, and I
speak for my colleagues to say that this Board has made its decisions with full integrity.
Remember, half of my career I was a field attorney with the National Labor Relations Board. That is what I did. I enforced the
Act.
You listed several different areas that you have taken issue with.
I have to say with respect to rules, and you cited the courtesy
rules, rules are the province of the employer. The employer has a
lot of control over their workplace, and the Board respects that.
Any rule, however, that is so vague as to infringe upon or tends
to infringe upon the section 7 rights of their employees to engage
in protected, concerted activity will be scrutinized and considered
problematic if a reasonable employee can conclude from reading
that rule that the protected activity under the law, a law decided
by Congress, that protected activity under the law would be curtailed.
Senator SCOTT. Thank you, Mr. Pearce.
Let me just end with this: I want to once again read this rule.
That, to me, is interesting, your response.
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Courtesy is a responsibility of every employee. Everyone is expected to be courteous, polite, and friendly to our customers, vendors, and suppliers, as well as to fellow employees. No one should
be disrespectful or use profanity or any other language which injures the image or reputation of the dealership.
I would simply suggest, sir, that this, I would not consider vague.
And I do not see how this has to be struck down or found unlawful.
Thank you, sir.
The CHAIRMAN. Thank you, Senator Scott.
Senator Baldwin.
STATEMENT
OF
SENATOR BALDWIN
Senator BALDWIN. Thank you, Chairman Harkin. And thank you

for holding this hearing on the five individuals before us to sit on
the National Labor Relations Board.
I am very pleased that we are holding this hearing today with
the nominees in attendance. But as a new member of this body, I
am baffled that the Senate has failed to confirm members to the
National Labor Relations Board in many, many years.
The main purpose behind the NLRB is rather simple, to administer the National Labor Relations Act, and certainly to provide a
venue to remedy unfair labor practices.
Yet, I fear that some of my colleagues believe that it is more important to ensure that the NLRB is not able to function properly.
And that is deeply disappointing.
I am hoping that this nomination hearing is a step in the right
direction of ensuring that millions of private sector workers in
America have a place that will provide a remedy to such unfair
labor practices that are found to exist.
I strongly support a fully functioning NLRB with five numbers.
I think confirming the entire slate will ensure that the NLRB is
working for American workers and American employers.
I hail from a State which has had a lot of focus recently on collective bargaining rights, particularly in the public sector. I know we
are here with a focus on the private sector, but Wisconsin has certainly been an area where many citizens have tuned into the importance of collective bargaining.
I think many believe the collective bargaining between employers
and unions is just about a fight over money. And my experience is
that collective bargaining often encompasses more than just dollars. And I wonder if you can all speak to the examples of the kinds
of concerns that you have seen, and issues around negotiations,
that are beyond compensation.
As I said, weve gotten a quick study on all of those issues in the
public sector in the State of Wisconsin. You have expertise in the
private sector. I know there are five of you. Our time is limited,
but why dont I start with you, Chairman Pearce, to address that
topic.
Mr. PEARCE. I would just point out one example that apparently
is very germane to the consideration of this esteemed body, and
that is the Noel Canning case. In Noel Canning, it was determined
by this Board that a negotiated collective bargaining agreement
that an employer refused to execute constituted a violation of the
law. That was agreed to by the D.C. Circuit Court.
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They agreed that our assessment of the unfair labor practice was
the correct one.
Ill turn this over to my colleague.
Mr. GRIFFIN. Certainly, there are many areas of collective bargaining that are other than wageshealth care benefits, pension
benefits.
In my service prior when I worked for the Operating Engineers
Union, a major focus of negotiations was jointly trusteed training
funds that train people on heavy equipment and on new pieces of
equipment. And when you work out of a hiring hall in the construction industry, the more pieces of equipment that you know how to
operate, the more employable you are, and the more valuable you
are and the more able you are to support your family.
So that was a focus of negotiations, because these pieces of
equipment are very expensive. Employers want people to be adequately trained. Financing and providing training was a major portion of the collective bargaining with respect to the union that I
represented.
Ms. BLOCK. I would add that this is one that I think is incredibly
important. Its something I had some experience with when I
worked with the committee. Its safety and health.
We actually recently had a case where we upheld the right of the
union to bargain with the employer over access to a workplace
where there had been a fatal accident, and the union thought it
was important for them to be able to come in and see the scene of
the accident in order to ensure that the employees who remained
in the workplace had a safe and healthful workplace.
I think we frequently see safety and health issues raised in collective bargaining, again, completely apart from any monetary interest but, really, a vital employee interest.
Mr. JOHNSON. Thank you, Senator.
Really quickly, I would echo that safety is an important issue
that is frequently addressed in collective bargaining. But things
sometimes come up in contracts that wouldnt necessarily spring to
mind immediately.
Some employers, employees, there was the case recently that the
Board adjudicated involving a cell phone policy. Under what circumstances can you make calls from your work phone?
Mr. MISCIMARRA. I will just briefly add that in my career, I have
seen a multitude of issues, ranging from innovative health care solutions, issues with technology and training, very difficult specific
customer issues or manufacturing problems that have been dealt
with jointly at the bargaining table.
STATEMENT
OF
SENATOR SANDERS
Senator SANDERS. Thank you very much, Mr. Chairman.

Let me say from the onset that I think we have five qualified
candidates, and I intend to support them.
What I think these candidates know, and everybody up here
knows, this discussion is not about them. They are qualified. They
should be voted out. They should take their position immediately.
What this debate is about is Republican obstructionism. As soon
as I leave this meeting, I am going to the Environment and Public
Works Committee meeting, which I sit on the Environment and
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Public Works Committee, to see if we can get Gina McCarthy appointed as EPA director.
At the last meeting, Republicans did not show up at that meeting. They boycotted it.
Mr. Chairman, let me just quote from an article written by
James Fallows on the Atlantic Web site. This is what he said,
Since the Democrats regained majority control of the Senate
6 years ago, the Republicans under Mitch McConnell have applied filibuster threats under a variety of names at a frequency
not seen before in American history. Filibusters used to be exceptional. Now they are used as blocking tactics for nearly any
significant legislation or nomination. The goal of this strategy,
which maximizes minority blocking power in a way not foreseen in the Constitution, has been to make the 60-vote requirement seem routine.
That is what Mr. Fallows said.
Senate Republicans have been intent to bottleneck, obstruct,
delay, and derail nearly every order of Senate business as part of
a dedicated political strategy.
In fact, since Democrats took control of the upper chamber in
2007, the Senates of the 110th, 111th, and 112th Congress witnessed the three highest totals of filibusters ever recorded.
So what we are seeing here is nothing new. You guys just happen to be in the way right now. It has nothing to do with you personally, so do not take it personally.
What we are seeing now on almost every single level is to make
government dysfunctional. And everybody knows, and I know my
good friend Senator Alexander, and he is a good friend, understands this is a political tactic.
And I am not here to criticize that tactic. You are in the minority. You are using your position to advance your ideas in the best
way that you can. I think it is a great disservice to the American
people, but you are doing what you can in terms of using the rules.
Now the real question is, what does the majority do? That, to me,
is the question. The minority is doing everything it can in this case
to make it impossible for working people who are on the job to have
their rights protected, so that tomorrow if some fellow out there,
some woman out there, tries to organize a union, gets fired against
the law, that worker will have no recourse.
If an employer abuses an employee against the law, that worker
will have no recourse.
The function of the NLRB is to protect the rights of workers in
terms of labor negotiations, and the right to form a union. If there
is no NLRB, those workers will have no rights, and I think that
is a terrible, terrible thing.
But that is very clear about what the Republicans want. We
shouldnt beat around the bush. These are qualified candidates.
They should be allowed to do the job that the NLRB provides for
them to do.
Now the question, Mr. Chairman, is what happens. My guess is
that they will in fact get a majority vote out of this committee,
probably with everybody on this side voting for them, everybody on
that side voting against them. Their nominations will then go to
the floor of the U.S. Senate.
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Everything being equal, our Republican friends will once again
filibuster and demand 60 votes. We will not get 60 votes.
The NLRB come August, I believe, will then become dysfunctional, and millions of workers will lose the protections that have
been enshrined by law for decades. What happens then?
I am not here to criticize the Republicans. They are doing what
they believe is best. It is part of a long-term strategy to obstruct,
make it impossible for the President or any of us to do what we
is think is right, in terms of protecting, in this case, American
workers.
Mr. Chairman, let me suggest to you what I think we should do.
If, once again, this effort is obstructed, if the goal is to prevent the
NLRB from functioning in terms of protecting the rights of American workers, I think we should change the rules and take a majority vote to not only see that these people are seated so that they
can do their job, but that other nominees who have been clearly obstructed also have a chance to do their job.
I think the American people see this institution as dysfunctional
and one of the main reasons is that the minority, who has every
right in the world to make their caseif Senator Alexander wants
to go on the floor for 15 hours, I will support his right to do that.
But at the end of the day in America, majority is supposed to
rule. Thats what elections are about. We won with a majority rule.
The President won with a majority.
The majority does not rule anymore, and millions of working people are suffering as result.
So, Mr. Chairman, here is my suggestion. If these nominees in
fact get the votes that they need, which I suspect they will, they
go to the floor, I will be very distraught if we do not seat them because of another filibuster.
And I would hope that we would use the rules of the Senate so
that majority rules. And if we need 51 votes to seat them, let us
do it.
The CHAIRMAN. Senator Alexanders name was invoked. I will
recognize him.
Senator ALEXANDER. Thanks, Mr. Chairman.
I respect the Senator from Vermont. He has a different view of
the Senate than I do.
I was reading John Meachams book about Thomas Jefferson the
other night, and there was an evening when Jefferson and Adams
sat down after dinner. And I am paraphrasing very carefully from
memory, but Adams said to Jefferson, Jefferson wrote, that without a Senate, we would lose the Republic.
The idea that a popularly elected assembly majority vote could
protect our liberties is a chimera of the imagination. So our Founders have always envisioned the Senate as different than a majority
rule body.
You go over to the House of Representatives. They have a Rules
Committee, and if you win the House of Representatives by one
vote, you have nine Democrats in the majority and four Republicans. That is a majority body and it runs like a fast train through
there.
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And if we had a majority party here, why then you would have
the tea party express run through the Senate and then some liberal group the next Congress. So that is just a different view.
As far as filibusters go, I introduced into the record earlier the
information from the Washington Post that on March 18, President
Obamas Cabinet nominations have been treated more rapidly than
the last three Presidents in the second term. By now, I suppose it
would be about even.
And I would remind the Senator that the number of Supreme
Court justices in the history of the Senate who have been defeated
by a filibuster, who have been denied their seats by a filibuster has
been zero.
The number of district judges who have been defeated, who have
been denied their seat by filibuster is zero. The number of Cabinet
members who have been denied their seat by a failed cloture vote
is zero. And the number of circuit judges who have been denied
their seat by cloture votes is five Republicans, all started by the
Democrats in the 1990s, and two Democrats.
So I favor up or down votes. And this dispute is about respect
for Article I. I wont repeat that since I said it earlier.
I respect the Senators different view of the Senate, but I disagree with it.
Senator SANDERS. If I could, very briefly, I understand where
Senator Alexander is coming from. But when one party chooses to
use the rules in an unprecedented way to make this institution
dysfunctional, then I think we have to look at new ways.
Senator ALEXANDER. Mr. Chairman, the President has made recess appointments in an unprecedented way when there wasnt a
recess. I mean, if Senator Byrd were here, I think he would be talking about that.
Senator SANDERS. We have strong disagreements. Thank you.
The CHAIRMAN. Really.
Senator Warren.
Senator WARREN. Thank you very much, Mr. Chairman.
Mr. Chairman, I actually have to start out I think here with an
apology, and that is to Charlie Griffin.
When I welcomed Mr. Griffin, I welcomed his wife and his
daughter. Charlie, I did not know you were here, so you are very
welcome here. And we are very pleased you are here.
I hope you are enjoying this.
[Laughter.]
I will add, though, into this. I am very concerned when Senators
use procedural technicalities or filibusters to block any nominations
to the NLRB. This is not based on any substantive problem with
the nominees but on fundamental hostility to the work of the
Board.
Like the consumer agency, the Environmental Protection Agency
and the Department of Labor, the NLRB is an agency of the Federal Government that was created by Congress. Its existence is
part of our Federal law. And yet, the NLRB nominees face the
same problems that Rich Cordray has faced at the consumer agency, that Gina McCarthy faces at the Environmental Protection
Agency, and that Tom Perez faces at the Department of Labor.
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This is about complete obstructionism because a minority of Senators dont like the agencies, and they dont like the work these
agencies do.
In my view, this kind of a obstructionism is a violation of the
Senates fundamental constitutional role to advise and consent on
nominations.
By all means, Senators can vote against nominees with whom
they disagree. But these nominees deserve a vote, and I hope they
get a vote. And I think thats what this is about today.
I also want to make it clear, we have heard from five qualified
individuals who will be voted on as a package. I certainly dont
agree with the views of all five of the individuals. I find it very
troubling, for example, that one of the nominees was hired by the
Chamber of Commerce specifically to curb the NLRBs regulatory
authority. But this is not about whether I agree or any of us agree
with individual views of the ideology of each nominee.
This is about whether or not the NLRB can function at all. It is
about giving both workers and employers a fair chance to have
their voices heard and their disputes resolved. Thats what we are
here today to move forward.
And I will support a package of five nominees.
Now, I have a couple questions, but one of them comes from
what Senator Scott raised. He seemed to imply that the NLRB is
working hard to make sure that all employees in America are not
courteous. And I surely think that cannot be the case.
So I tried to find out what I can about the case in particular that
he talked about. And there are two parts to it that interested me.
The first is thatI understand that the Karl Knauz Motors case
is the one we are talking about hereis a case where the employee
used social media that affected the employer, complained about his
or her job. And in that case, the NLRB ruled that the company
could terminate the employee for derogatory comments about the
company. Is that correct?
Mr. PEARCE. Yes. Id like to clear a couple of things up.
First of all, if I can say a little bit about that courtesy rule. We
do not have an issue with courtesy. We had an issue with the sentence that said, prohibiting saying anything unfavorable about the
employer, was the problem.
And consequently, that rule had to be dealt with because of that
vagueness.
Now Karl Knauz, with respect to the social media piece, you had
two postings. One posting was by the salesman of a video of the
son of the customer, a 13-year-old son of a customer, jumping into
the car that the customer had just test drove, running over his fathers foot and crashing the car into a pond at the dealership. And
the posting was whoops.
The other posting, this was a BMW dealership and they were
having a promotional celebration. They were offering water and hot
dogs. That posting was: What kind of low-rent outfit is this? Words
to this effect. Were trying to sell fancy cars, and this is what
theyre offering to the customers.
Now, the first posting involving the accident was the posting that
was the basis for which the employer terminated the employee. We
concluded that that was not protected activity. That was done on
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an individual basis as a lark. It was kind of snarky. It had nothing
to do with terms and conditions of employment. Consequently, we
found there was no violation.
With respect to the hot dogs
Senator WARREN. I am sorry, let me just make sure, for all of us
who dont do labor law all the time, it means the employer could
fire the employee for that posting?
Mr. PEARCE. Thats right.
Senator WARREN. Thank you.
Mr. PEARCE. And the other one about the hot dogs, we reserved
on it, because it wasnt in front of us.
Senator WARREN. OK, good. I just wanted to be clear about
whats happening to the American workplace. Thank you.
Mr. Chairman, I see I am out of time. I will submit questions for
the record.
Thank you all very much. And I do want to say again, I know
this is tough, to take on public service like this, particularly now,
and particularly when there are much larger debates that go on
that are not having to do with you specifically.
I am grateful to all of you for your willingness to serve, and I
have no doubt that all five of you would serve the NLRB and serve
this country well.
Thank you.
The CHAIRMAN. Thank you, Senator.
Senator Franken.
STATEMENT
OF
SENATOR FRANKEN
Senator FRANKEN. Sorry, Im going to be able to ask only one

question. I have to get back to the Judiciary Committee, and Im
sorry that I missed the rest of the hearing.
Hows it going?
[Laughter.]
First, I want to thank all of you for agreeing to serve on the National Labor Relations Board. This Board plays the important role
of protecting the rights of both employers and workers. However,
the lack of a full board and the D.C. Circuits Noel Canning decision has hampered the Boards ability to protect these rights.
Susie Stetler is one of the workers waiting for her rights to be
vindicated. Susie is a school bus driver from Elk River, MN. She
was terminated because her employer wanted to get rid of employees who previously tried to organize a union. The NLRB found
that Ms. Stetlers rights had been violated and ordered the company to rehire Ms. Stetler and provide back pay.
Ms. Stetlers employer appealed the NLRB decision to the D.C.
Circuit. Because of the Noel Canning decision, the court will not
rule on the merits of her case. It is now 8 months after the NLRB
decision. Susie has not been rehired. She is still waiting for
$40,000 in back pay.
Either Mr. Griffin or Ms. Block, if the Senate confirmed a full
five-member board, what would that mean for workers like Ms.
Stetler, who are waiting for their cases to be resolved? And would
it keep future workers from being put in that same horrible situation of waiting?
Ms. BLOCK. Thank you, Senator. I remember Ms. Stetlers case.
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I think if we were to be confirmed as a Board, we would have
to figure out what to do about the pending cases. But I think your
second point is absolutely right and crucial, that there would not
be any more Susie Stetlers, because we would be able to move forward, make our decisions, and then seek enforcement in the Courts
of Appeals, and get, essentially, an up-and-down vote from the
court as to whether we made the right decision under the labor law
or not.
Mr. GRIFFIN. I agree with member Block completely.
The answer to the uncertainty that is caused by the constitutional challenge under Noel Canning is to have a confirmed board.
Senator FRANKEN. OK, thank you. Im sorry I have to go back because I have an amendment that I have to introduce in the Judiciary Committee, but thank you all.
I had questions for you guys too.
It was nice meeting you, Mr. Johnson, before.
Mr. Miscimarra, Im sorry I did not get a chance to meet you.
Mr. MISCIMARRA. Likewise.
Senator FRANKEN. But good luck. It seems like everything is falling into place.
[Laughter.]
The CHAIRMAN. I thank everyone, for your attendance and for the
questions.
I thank the nominees for being here. And for their willingness to
serve.
I am almost tempted to engage in a little bit of give-and-take on
the constitutional background of the U.S. Senate, but I will reserve
that for some other time on the floor or something.
I have just been involved in trying to get rid of the filibuster for
20-some years, so I do have views on Senate rules and the ability
of the minority to block legislation. I would just say very succinctly
that I have long felt that there should be a rule for the Senate to
be able to slow things down, not to rush to judgment, to be able
to have due deliberations so that the rights of the minority are not
run roughshod over.
But in the end, at some point, the majority must be enabled to
act. It should be the right of the minority to be able to amend, to
offer amendments, and, yes, to be able to slow things down, to get
the public aware of what the majority is trying to do. But not to,
in the end, be able to absolutely stop something with a minority
of the vote.
But that is one persons opinion.
Again, I thank you all very much. I am hopeful that we can move
these nominations very rapidly, with the concurrence of our Ranking Member. I hope to be able to move them sometime very soon.
The record will remain open for 10 days. Written questions must
be submitted by close of business of this Friday, and then we will
keep the record open for the responses to those written questions.
But after 10 days, we will do our duty and move the nominees.
Again, thank you all very much. Does anyone have anything else
they wanted to add before we adjourn?
Mr. JOHNSON. Thank you for your time, Senators. Thank you
very much.
The CHAIRMAN. I am sorry, Mr. Johnson.
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Mr. JOHNSON. I just said thank you for your time, Senator.
The CHAIRMAN. Thank you.
It was Senator Leahy who first said this, maybe it has been
around longer than that. But he once said that Senators are a constitutional impediment to the smooth functioning of staff.
[Laughter.]
I just learned that we are moving the nominees next Wednesday
morning, so thank you.
The committee will stand adjourned.
[Additional material follows.]
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ADDITIONAL MATERIAL
[The New York Times, December 14, 2007]
CRITICS SAY LABOR BOARD FAVORS BUSINESS
(By Steven Greenhouse)
Senate and House Democrats attacked the Republican-led National Labor Relations Board at a congressional hearing on Thursday, saying its recent decisions had
favored employers over workers.
The Democrats focused on 61 board decisions issued in September that, among
other things, made it harder for unions to organize workers and harder for illegally
fired employees to collect back pay.
This board has undermined collective bargaining at every turn, putting the
power of the law behind lawbreakers, not law victims, said Senator Edward M.
Kennedy, the Massachusetts Democrat who is Chairman of the Senate Health, Education, Labor, and Pensions Committee.
At the hearing. Wilma B. Liebman, a Democratic member of the five-member
board, which oversees unionization rules for workers in private industry, repeatedly
clashed with the boards Republican chairman, Robert J. Battista.
Virtually every recent policy choice by the board, Ms. Liebman said, impedes
collective bargaining, creates obstacles to union representation or favors employer
interests.
Mr. Battista, whose term expires Sunday, took strong issue with the Democrats
criticism.
Notwithstanding the special interest group rhetoric we may be hearing about the
N.L.R.B., the agency is carrying out its statutory mission, said Mr. Battista, a labor
lawyer from Detroit who represented many corporations.
He said the labor board had significantly cut delays in handling unfair labor practice cases and had collected $110 million in back pay last year for workers who had
been improperly retaliated against for union activity.
The White House has remained mum on whether it will reappoint Mr. Battista.
A senior Democratic Senate staff member said yesterday that Democratic Senators
were likely to resist confirming him.
Republican leaders mocked the combined hearing by House and Senate members,
saying it was improper to summon members of an adjudicatory panel before Congress to defend their decisions. The Republicans asserted that the hearing was reward to organized labor for helping Democrats in their campaigns.
Representative Howard P. McKeon of California, the ranking Republican on the
House Education and Labor Committee said,
Todays hearing is a transparent attempt by Democratic leaders to appease
the labor union special interests that helped put them in office by attacking decisions of the N.L.R.B. that they do not view as sufficiently pro-union.
Labor leaders are pressing the Democratic presidential candidates and congressional Democrats to back legislation that would make it far easier for workers to
unionize.
In the decision that came under fiercest attack yesterday, the labor board ruled
3 to 2 in September that when a company agrees to grant union recognition after
a majority of workers sign cards or a petition saying they want one, an election
must be heldin effect vacating the union recognitionif 30 percent of the workers
sign another petition within 45 days saying they want a vote to get rid of the union.
Ms. Liebman and the Democratic legislators said that the decision showed an
anti-union tilt and that it gave 30 percent of the workers the power to overrule majority sentiment. Mr. Battista defended the ruling, saying it merely gave workers
the chance to vote in a secret ballot election on whether they wanted to keep the
union.
Several Democrats accused the boards majority of hypocrisy because on the same
day it decided this case it issued another ruling that allowed a company to cut off
recognition of its union after a majority of workers submitted a petition seeking a
vote to get rid of it. The Democrats asked why the labor board did not insist on
a secret ballot election under such circumstances.
The union movements discontent with the labor board has grown so intense that
several hundred union sympathizers demonstrated in front of the boards Washington headquarters last month, chanting that it should be shut down for renovations.
Labor leaders say they would be happy if the board did nothing until a Democrat
was in the White House. In addition to the expiration of Mr. Battistas term Sun-
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day, the appointments of two other members end later this month when the congressional session ends.
An aide to the Senate majority leader, Harry Reid, said the Senator was considering holding pro forma sessions of the Senate to prevent President Bush from renaming Mr. Battista as a recess appointment.
At Thursdays hearing, a hotel housekeeper, Feliza Ryland, testified about her
fight to win back pay after the board ruled in 2001 that she and 43 other workers
had been illegally fired in 1996 in a labor dispute with Grosvenor Resorts in Orlando, FL.
It has now been more than 11 years since I was unlawfully fired, Ms. Ryland
said, and I am still waiting to see the back pay, still waiting to see justice.
In a decision in September, the board sharply reduced the workers back pay, saying they forfeited the right to full back pay because they picketed for several weeks
in an effort to get their jobs back instead of looking for new jobs. The boards majority wrote that giving full back pay would reward idleness.
MAY 14, 2013.
Hon. TOM HARKIN, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
428 Dirksen Senate Office Building,
Washington, DC 20510.
Hon. LAMAR ALEXANDER, Ranking Member,
428 Dirksen Senate Office Building,
DEAR CHAIRMAN HARKIN AND RANKING MEMBER ALEXANDER: As management
lawyers representing employers and union lawyers representing unions and employees, we are writing to urge swift confirmation of the full package of five members
of the National Labor Relations Board (NLRB): Mark Pearce, Philip Miscimarra,
Richard Griffin, Harry Johnson, III, and Sharon Block.
This is a highly experienced group of nominees. Each of the nominated individuals
brings decades of experience under the National Labor Relations Act and our labormanagement system.
While we differ in our views over the decisions and actions of the NLRB over the
years, we do agree that our clients interests are best served by the stability and
certainty that a full, confirmed Board will bring to the field of labor-management
relations. The last several years have been tumultuous, and the recent decision by
the U.S. Court of Appeals for the DC Circuit in Noel Canning has thrown greater
uncertainty into our labor-management system.
We urge the Senate to confirm the full bipartisan package of nominees to the
NLRB without delay.
Respectfully submitted,
Darryl Anderson, Washington, DC (U) 1; Duane Beeson, Oakland, CA (U); Howard
L. Bernstein, Chicago, IL (M) 2; Burton Boltuch, Oakland, CA (M); Robert Bonsall,
Sacramento, CA (U); Max Brittain, Chicago, IL (M); Ronald W. Brown, Sacramento,
CA (M); Barbara Camens, Washington, DC (U); Wendy Chierici, Philadelphia, PA
(U); Irwin H. Cutler, Jr., Louisville, KY (U); Joel A. DAlba, Chicago, IL (U); Robert
A. Dufek, Potomac, MD (M); Charles Elbert, St. Louis, MO (M); Philip C. Eschels,
Louisville, KY (M); John H. M. Fenix, Westlake, OH (M); Ronald Fisher, St. Louis,
MO (M); Joe Gagliardo, Chicago, IL (M); Brent Garren, New York, NY (U); Gerald
A. Golden, Chicago, IL (M); Joyce Goldstein, Cleveland, OH (U); Barry A. Hartstein,
Chicago, IL (M); H. Victoria Hedian, Baltimore, MD (U); Judith Droz Keyes, San
Francisco, CA (M); Richard Laner, Chicago, IL (M); Gregory T. Lodge, Toledo, OH
(M); Stanley Lubin, Phoenix, AZ (U); Stephen Macri, New York, NY (M); Thomas
Mandler, Chicago, IL (M); Matt Miklave, New York, NY (M); Deb Millenson, Washington, DC (M); Fred A. Ricks Jr., St. Louis, MO (M); Laurence Rosoff, Camden Co.,
NJ (M); Steven B. Rynecki, Milwaukee, WI (M); Richard Seryak, Detroit, MI (M);
Stephen D. Shawe, Baltimore, MD (M); W.V. (Bernie) Siebert, Denver, CO (M); Stanley Silverstone, White Plains, NY (M); Gary L. Simpler, Baltimore, MD (M); Leslie
Tarantola, Camp Springs, MD (U); Marilyn Teitelbaum, St. Louis, MO (U); Carl
Tomenberg, Chicago, IL (M); John J. Toner, Washington, DC (M); Carl E. Ver Beek,
Grand Rapids, MI (M); Marc G. Whitefield, Farmington Hills, MI (M); Joe Yastrow,
1 (U)
2 (M)
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= Management Attorney.
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Chicago, IL (M); Amy Young, Washington, DC (U); and Barbara Zibordi, Washington, DC (U).
AMERICAN ASSOCIATION
OF
UNIVERSITY WOMEN (AAUW)

MAY 15, 2013.
Hon. TOM HARKIN, Chairman,

Hon. LAMAR ALEXANDER, Ranking Member,
428 Senate Dirksen Office Building,
DEAR CHAIRMAN HARKIN AND RANKING MEMBER ALEXANDER: On behalf of the undersigned organizations, all of whom work to promote economic opportunity and security for women, we write to urge the committee to do its part to ensure a smoothly
functioning National Labor Relations Board. To that end, we urge you to carefully
consider the bipartisan package of five nominees before you, and facilitate their
movement through the confirmation process. Without swift action on the bipartisan
package, the NLRB will be left without the necessary quorum of at least three members. As the economic recovery picks up steam, now is not the time to undermine
an agency so critical to the Nations workforce.
As organizations devoted to advancing policies in support of fair pay, we know
that there is much work to be done to close the gender wage gap. As we continue
to urge Congress to pass the Paycheck Fairness Act (S. 84/H.R. 377), we also believe
working families need a functioning, fully staffed National Labor Relations Board
to protect their right to an important strategy in the fight for economic security: collective bargaining.
The National Labor Relations Board has long worked to ensure the rights of employees to bargain collectively, if they choose to do so. This work is particularly
meaningful for women. Throughout our Nations history, women have played a significant role in improving workers lives. Their courage and contributions changed
the labor movement and in turn helped shape our society. Today, close to half of
all the Nations workers are women, and women make up roughly 45 percent of
union members. If their share of the unionized workforce continues to grow at the
current pace, by 2020 the majority of union members will be women.1
Unions have always been important to advancing womens economic security.
Union wage and benefit structures are typically more transparent than those for
non-union workplaces, which in turn helps to decrease wage discrimination. According to the U.S. Department of Labor, the typical full-time woman union worker has
weekly earnings equal to 88 percent of a male union worker.2 In contrast, women
overall make only 77 cents on average for every dollar earned by a man.3 Further,
the Center for Economic and Policy Research found there is not only wage improvement but also a benefit advantage for women in unions relative to their non-union
counterparts. According to that report:
The data suggest that even after controlling for systematic differences between union and non-union workers, union representation substantially improves the pay and benefits that women receive. On average, unionization
raised womens wages by 11.2 percentabout $2.00 per hourcompared to nonunion women with similar characteristics. Among women workers, those in
unions were about 19 percentage points more likely to have employer-provided
health insurance and about 25 percentage points more likely to have an employer-provided pension. 4
Pay equity is particularly critical in todays economy, where approximately 40 percent of women are acting as the primary breadwinners in their households and more
than 60 percent are breadwinners or co-breadwinners.5 Giving women more tools to
1 John Schmitt, Center for Economic and Policy Research. (December 2008). Unions and Upward Mobility for Women. Retrieved May 13, 2013 from www.cepr.net/index.php/publications/
reports/unions-and-upward-mobility-for-women-workers/.
2 U.S. Department of Labor, Bureau of Labor Statistics. (January 23, 2013). Union Members
2012. Retrieved May 13, 2013, from www.bls.gov/news.release/union2.nr0.htm.
3 U.S. Census Bureau. (September 2012). Income, Poverty, and Health Insurance Coverage in
the United States: 2011Report and Detailed Tables. Retrieved May 13, 2013, from
www.census.gov/prod/2012pubs/p60-243.pdf.
4 Ibid.
5 American Progress. (2009). The Shriver Report: A Womens Nation Changes Everything; The
New Breadwinners. Retrieved May 13, 2013, from www.americanprogress.org/issues/2009/10/
pdf/awn/chapters/economy.pdf.
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49
help them take home every dollar they earn is crucial not only to families economic
security, but also to growth of the Nations economy as a whole.
The National Labor Relations Board also plays an important role in the American
economy and the growing recovery. We urge the committee to take action on the
full bipartisan package of nominees so that the Board has the full complement of
members necessary to conduct the peoples business.
Please feel free to contact Lisa Maatz at the American Association of University
Women, 2027857720 or [email protected], with any questions.
Sincerely,
American Association of University Women (AAUW); 9 to 5; Alliance for Justice;
American Federation of State, County and Municipal Employees (AFSCME); American Federation of Teachers; Catalyst; Clearinghouse on Womens Issues; Coalition
of Labor Union Women (CLUW); Digital Sisters; Equal Pay Coalition NYC; Equal
Rights Advocates; Family Forward Oregon; Feminist Majority; Institute for Science
and Human Values, Inc.; International Brotherhood of Teamsters; Legal Momentum; MomsRising; National Coalition on Black Civic Participation (NCBCP)/Black
Womens Round Table; National Committee on Pay Equity; National Council of Jewish Women; National Council of Womens Organizations; National Gay and Lesbian
Task Force; National Partnership for Women & Families; National Womens Law
Center; National Womens Political Caucus; People For the American Way; Secular
Women; Turning Anger into Change; Ultra Violet; US Womens Chamber of Commerce; Women Employed; Womens Law Project.
[Whereupon, at 12:05 p.m., the hearing was adjourned.]
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Pending Nominations To The National Labor Relations Board

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S. HRG.

PENDING NOMINATIONS TO THE NATIONAL

COMMITTEE ON HEALTH, EDUCATION,

EXAMINING THE NOMINATIONS OF MARK GASTON PEARCE, OF NEW

MAY 16, 2013

For sale by the Superintendent of Documents, U.S. Government Publishing Office

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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

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PENDING NOMINATIONS TO THE NATIONAL

The CHAIRMAN. The Senate Committee on Health, Education,

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Senator ALEXANDER. Thank you very much, Mr. Chairman. I look

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Thank you for holding a hearing on this slate of nominees to the

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Senator MURPHY. Thank you very much, Chairman Harkin,

Senator WARREN. Thank you, Mr. Chairman.

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Senator DORGAN. Mr. Chairman, thank you very much. Members

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Senator SCHUMER. A few minutes respite is welcome. Its much

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Mr. PEARCE. Thank you, Chairman Harkin, Senator Alexander,

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MARK GASTON PEARCE

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The CHAIRMAN. Your timing is perfect, 5 minutes exactly. Thank

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RICHARD F. GRIFFIN, JR.

Chairman Harkin, Ranking Member Alexander and members of the committee.