As in the previous hearing on NLRB nominees, today’s hearing on two new nominees – Nancy Schiffer and Kent Hirozawa – went off about as expected.  There were questions about the role of the Board, the importance of unbiased Board members, the place rulemaking might play in expressing Board policy, and concerns regarding specific Board decisions and actions over the past few years. 

The concern expressed most often in questioning was whether the nominees, both of whom have backgrounds representing organized labor, could to be truly neutral and unbiased as they approached the important questions that come before the Board.  A number of Senators expressed this concern.

Senator Casey perhaps put it most eloquently.  While we cannot expect “scientific certainty”, he asked each of the nominees to point to an experience in their lives that would demonstrate “objectivity and balance”.  Both nominees spoke – movingly, I thought – of times in their respective careers when they were called upon to work with employers and their counsel in order to achieve agreement on a matter of importance to both the businesses and the workers involved. 

Persons called to public service as political appointees at the NLRB generally have had distinguished careers prior to their appointment.  We cannot realistically expect them to completely set aside a lifetime of experiences, and viewpoints based on those experiences.  But the principal driver of decision making should not be experiences and viewpoints, but the law and its application to the facts of each case.  It was this concern that was front and center at today’s hearing.