Sen. Lamar Alexander, R-Tennessee, urged his colleagues to confirm the nominees and move away from partisan divides. But it was clear that the NLRB will continue to be seen as a political agency. Democrats said Trump’s two nominees to the labor board are a sign that unions will further be weakened.
Several issues certain to divide parties were brought up during the hearing, including the issue over who qualifies as a joint employer for liability and bargaining purposes, the ability to form “micro-units,” arbitration agreements and the right of graduate students to form unions. Emanuel and Kaplan indicated they would approach each issue in a fact-sensitive manner.
Business-friendly and GOP groups have said they hope the new NLRB members will bring “balance” to what they believe was a radical board under the Obama administration. Workers rights and union advocates say the new members are inappropriate for the agency and will likely push ideological rulings in support of corporations at the expense of workers.
“It’s critical we are doing everything we can to make sure that every worker has a fair shot,” said Sen. Patty Murray, D-Washington. She said she has “strong questions” about Emanuel’s ability to protect workers, since he spent a career fighting them. She said she could not find any example in Kaplan’s career at government agencies where he supported unions.
“The primary mission of the board is to stand up for workers,” Murray said.
Emanuel disputed the characterization that he has never worked with unions or discouraged collective bargaining. He argued that he has negotiated with labor unions, but does not believe that promoting collective bargaining extends to situations where employees are forced to pay union dues.
Recusals in Focus
Warren pressed Emanuel over whether and when he would recuse from issues that arose before the NLRB. Emanuel identified 49 former clients in his financial disclosure that would present potential ethics complications at the agency for a year. These companies include Uber Technologies Inc., Rite Aid Corp., Nissan North America Inc. and MasTec Inc.
She also noted that Emanuel has written on topics about employers’ authority to require workers to waive rights to participate in class actions, to prevent employees from protesting on property and what the boundaries of bargaining units should be. The U.S. Supreme Court this coming term is set to look at arbitration agreements that restrict employee class actions.
“The views are extreme and go to the heart of what the NLRB will decide,” Warren said. She added, “You have made it clear that you have prejudged in areas where you have put your name on it.”
Emanuel insisted that he does not believe recusal applies to issues that he’s written about.
Sen. Al Franken, D-Minnesota, questioned Emanuel on representing companies that seek to stop class actions through forced arbitration agreements. He responded that federal arbitration laws allow those agreement to be enforced as written.
Franken also questioned Pizzella, now a member of the U.S. Federal Labor Relations Authority, about his ties to Abramoff, the former lobbyist in Washington who was sentenced in 2008 to four years in prison in a corruption scheme. Pizzella reportedly worked with Abramoff at the then-law firm Preston Gates & Ellis from 1996 to 2001.
Other senators asked Pizzella how he would promote programs that help grow the workforce with a dramatically reduced budget for the Labor Department. Pizzella said Labor officials would use the budget wisely to promote programs and eliminate waste. “I do believe that there are efficiencies that can be made and improved,” he said.
The committee will vote July 19 on the nominations for Pizzella, Kaplan and Emanuel.
