Alexander: America’s Workers Deserve a Properly Staffed Labor Department, Full Board at the NLRB

WASHINGTON, D.C., July 13, 2017 – At today’s confirmation hearing in the Senate labor committee, Chairman Lamar Alexander (R-Tenn.) said, “America’s workers deserve a properly staffed Labor Department and a full board at the National Labor Relations Board.”

Today’s hearing is to consider the nominations of Patrick Pizzella to serve as Deputy Secretary of the Department of Labor (DOL) and Marvin Kaplan and William Emanuel to serve as members of the National Labor Relations Board (NLRB).

“Today’s hearing is important for our nation’s workers and employers—it’s important to get the Department of Labor properly staffed, and to ensure the open seats on the National Labor Relations Board are filled,” Alexander said. “The Department of Labor is charged with enforcing laws to keep workers safe on the job, to ensure workers are paid the wages they’re owed, ensure employers comply with our laws and regulations, and the agency also keeps critical data on our employment market. Secretary Acosta is off to a fine start with just over 60 days in office. He has many positions to fill and today we are considering the president’s nomination to fill one of the most important ones. Mr. Pizzella brings a wealth of relevant experience in both Democratic and Republican administrations.” 

Regarding the nominees for the NLRB, Alexander said, “The two nominees today are for positions that have sat vacant - one for 23 months since President Obama declined to nominate a Republican for the then-minority seat, and the other for 11 months. My hope is that these nominees will help restore some balance to the labor board. After years of playing the role of advocate, the NLRB should be restored to the role of neutral umpire. When the board is too partisan, it creates instability in our nation's workplaces. These legal whipsaws create confusion for employers, employees and unions.  It does not serve the intent of the law – which is stable labor relations and free flow of commerce.”

Mr. Pizzella is currently the Acting Chairman of the Federal Labor Relations Authority (FLRA) and previously served as a member of the FLRA after being nominated by President Obama in August 2013 and was confirmed by the Senate by a voice vote in October 2013. Under President Bush, Mr. Pizzella served as Assistant Secretary of Labor for Administration and Management at DOL.  

Mr. Kaplan is currently Chief Counsel for the Occupational Safety and Health Review Commission, where he has served since August 2015. Mr. Emanuel is currently an attorney working on labor and employment matters and has previously represented clients before the NLRB. The committee is scheduled to vote next Wednesday on the nominations of Mr. Kaplan and Mr. Emanuel.

Alexander’s full prepared remarks are below:

Today’s hearing is an important one for our nation’s workers and employers.

It’s important to get the Department of Labor properly staffed, and to ensure the open seats on the National Labor Relations Board are filled.

We need a full board. And I’m certainly not the only one of us who thinks so.

Senator Baldwin said at a hearing on May 16, 2013: “I strongly support a fully functioning NLRB with five members. I think confirming the entire slate will ensure that the NLRB is working for American workers and American employers.”

Senator Casey said at the same hearing: “What we don't need now--the last thing we need here in Washington or across the country--is 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…”

Then-Chairman Harkin said in September 2014: “Keeping the NLRB fully staffed and able to do its work will send a strong message to the American people that yes, Washington can work, and our government can function. It will give certainty to businesses and assure workers that someone is looking out for their rights and ready and able to enforce our Nation's labor laws.”

Pizzella nomination

The Department of Labor is charged with enforcing laws to keep workers safe on the job, to ensure workers are paid the wages they’re owed, ensure employers comply with our laws and regulations, and the agency also keeps critical data on our employment market.

Secretary Acosta is off to a fine start with just over 60 days in office. 

He has many positions to fill and today we are considering the president’s nomination to fill one of the most important ones.  

Patrick Pizzella brings a wealth of relevant experience in both Democratic and Republican administrations. He currently serves as Acting Chairman of the Federal Labor Relations Authority, a position to which he was designated by President Trump on January 23rd.

Mr. Pizzella has served as a Member of the Federal Labor Relations Authority since November 2013, after being nominated by President Barack Obama in August 2013 and confirmed by the U.S. Senate by voice vote on October 16, 2013.

He served under President George W Bush from 2001-2009, as Assistant Secretary of Labor for Administration and Management at the U.S. Department of Labor.

He was nominated by President Bush in April 2001—approved in May without a hearing by the HELP committee under Senator Ted Kennedy--and confirmed by the full Senate two days later.

He has served at the U.S. Office of Personnel Management, the U.S. Small Business Administration and the U. S. General Services Administration.

The committee received Mr. Pizzella’s Office of Government Ethics paperwork on June 23, including his public financial disclosure and ethics agreement.  Based on these documents, OGE finds that Pizzella “is in compliance with applicable laws and regulations governing conflicts of interest.”

The Committee received his committee paperwork on June 29, meeting our requirement that paperwork be submitted to the committee at least five days before a hearing.

NLRB nominees

The National Labor Relations Board was created in 1935 by the National Labor Relations Act in response to significant strife between employees and employers in industrial workplaces. 

The board has five members with five-year, staggered terms, and a General Counsel with a four-year term.  There is no statutory requirement regarding party affiliation, but the tradition has been for the president to appoint members on a 3-2 ratio favoring the Administration, with nominations for the two minority seats recommended by the Senate minority leader. 

The two nominees today are for positions that have sat vacant – one for 23 months since President Obama declined to nominate a Republican for the then-minority seat, and the other for 11 months.   

My hope is that these nominees will help restore some balance to the labor board.

After years of playing the role of advocate, the board should be restored to the role of neutral umpire.

Board partisanship didn’t start under President Obama but it became worse under him.

Board decisions designed to help labor unions have contrasted with the states’ movement toward right-to-work laws.  Six new states became right to work in the last 6 years – bringing the total to 28.

When the board is too partisan, it creates instability in our nation's workplaces.

These legal whipsaws create confusion for employers, employees and unions.  It does not serve the intent of the law – which is stable labor relations and free flow of commerce.  

For example, here are three harmful actions by the board under President Obama:

Joint employer decision: The board’s joint-employer decision was the biggest attack on the opportunity for small businessmen and women in this country to make their way into the middle class that anyone has seen in a long time—threatening to destroy the American Dream for owners of the nation’s 780,000 franchise location

Ambush elections rule: The National Labor Relations Board’s ambush election rule can force a union election in as little as 11 days, before an employer and many employees even have a chance to figure out what is going on.

The rule forces employers to hand over an employee's personal information, like email addresses and work locations, so union organizers can track them down, regardless of whether the employee wants anything to do with it.

Micro-union decision:  Factions of employees within single stores now have a path to forming their own unions.  In 2011, the Board suddenly adopted a new way to define what makes a local union bargaining unit.  The Board changed the law so that any group of employees with an overwhelming community of interest could become a bargaining unit and therefore a union. 

Nominee Marvin Kaplan is currently Chief Counsel for the Occupational Safety and Health Review Commission, where he has served since August 2015.

From 2009-2015, Kaplan worked as Counsel for the House Education and Workforce Committee and the House Oversight and Government Reform Committee. From 2007-2009, he was Special Assistant at the Department of Labor, Office of Labor-Management Standards. 

William Emanuel is currently an attorney at Littler Mendelson in Los Angeles working on labor and employment matters. 

Mr. Emanuel has spent his career in the private sector, representing trade associations, hospitals and health care organizations, schools, as well as transportation, logistics, and manufacturing companies. 

Mr. Emanuel has previously represented his clients before the NLRB and has filed amicus briefs on behalf of trade associations.

The Committee received Mr. Kaplan’s HELP paperwork on June 26.  Also, on June 26, the committee received Mr. Kaplan’s Office of Government Ethics paperwork, including his public financial disclosure and ethics agreement.  Based on these documents, OGE determined that Mr. Kaplan “is in compliance with applicable laws and regulations governing conflicts of interest.”

The Committee received Mr. Emanuel’s HELP application on June 30.   On July 6, the committee received Mr. Emanuel’s Office of Government Ethics paperwork, including his public financial disclosure and ethics agreement.  Based on these documents, OGE determined that Mr. Emanuel “is in compliance with applicable laws and regulations governing conflicts of interest.”

I look forward to hearing our witness’s testimony.

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