During a Tuesday morning hearing, members of the Senate Committee on Health, Education, Labor and Pensions (HELP) questioned whether National Labor Relations Board nominees Kent Yoshiho Hirozawa and Nancy Jean Schiffer could impartially serve as Board members given their pro-labor backgrounds. Last week President Obama named Hirozawa and Schiffer as his choices to replace recess appointees Richard Griffin and Sharon Block. The selection of two new candidates was part of the contentious Senate deal to avoid changing the chamber’s filibuster rules.

Opening the hearing, HELP Chairman Tom Harkin (D-IA) said that a fully confirmed, fully functional Board will play “a vital role in vindicating worker’s rights.” He said that in the past decade, the Board has recovered more than $1 billion on behalf of workers, and has reinstated 22,000 employees who were unlawfully fired. In the absence of Senate action on the Board nominees, the agency “will lose a quorum in August and will have to effectively shut down.”

Ranking member Lamar Alexander (R-TN) emphasized that Board members “should be judges, not advocates,” and said that “by moving ahead with these nominations, we will be able to end the uncertainty” that has been created as a result of the potential unconstitutionality of the recess appointments. Alexander said during the hearing the Committee “will be looking at impartiality.” He stated that in recent years the Board has “been moving away from impartiality,” and “ventured into new territory” through rulemaking that “tilts the playing field in favor of organized labor.”

Schiffer is the former Associate General Counsel of the AFL-CIO and Hirozawa is Chief Counsel to Board Chairman Mark Pearce. Before panel questioning, both candidates claimed that they would be “pro-Act,” and pledged themselves to its fair and evenhanded enforcement. Hirozawa and Schiffer were asked about a number of topics, including the following:

EFCA

Many members of the HELP Committee brought up the Employee Free Choice Act (EFCA) and Schiffer’s past support for it. Sen. Tim Scott (R-SC) noted that she has twice testified before Congress in favor of the bill

Chairman Harkin noted that EFCA contains three major provisions: the ability to certify a union based on a majority of signed authorization cards (the “card check” provision); a mechanism for ratifying a first contract through binding arbitration; and strengthened enforcement of certain unfair labor practices. Harkin noted that he feels strongly about this legislation, but asked Schiffer whether the Board could implement any of these provisions through its rule-making authority. Schiffer responded that the Board could not, and that EFCA could only be implemented through congressional action.

Right to Work Laws

Ranking member Alexander expressed his state’s strong support for right-to-work laws, and asked the candidates whether these laws should be changed. Schiffer answered that the right-to-work law is a statutory right that “cannot be changed by members of the NLRB,” but rather requires legislative action. Hirozawa agreed that “right to work is a matter for Congress and the states to decide. . . . The Board has nothing to say about it.”

Alexander asked whether it would be an unfair labor practice for a unionized employer to expand in a right to work state. Hirozawa said that “as a general matter” this would not be a violation, but that this, as in any ULP case, would have to be decided on the facts. Schiffer said that Alexander’s hypothetical is “in and of itself not a violation,” but that it “might be” depending on other factors.

Board Decisions

Sen. Johnny Isakson (R-GA) mentioned that Hirozawa was Board Chairman Mark Pearce’s chief counsel when the Board issued its decision in Specialty Healthcare, the so-called “micro bargaining unit” case. Isakson asked Hirozawa why Pearce decided to deviate from established precedent. Hirozawa avoided a clear answer, however, on the grounds that as chief counsel he was subject to privilege obligations, and therefore could not discuss Pearce’s views on the matter. He said he would let the decision speak for itself.

Isakson then asked whether Hirozawa would ratify the more than 1,000 decisions that have been issued while members Block and Griffin served as recess appointees, or whether he would wait until the Supreme Court decides the constitutionality of those appointments in Noel Canning. Hirozawa said that this is something for the full Board to decide, and that he has not given it a great deal of thought at this point. Schiffer agreed, saying that “this is a question that will likely come to the new Board,” and that she did not want to become a member with a preconceived agenda. She claimed that she has “not been privy to a lot of information,” and therefore is not in a position to answer this question at this time.

Notice Posting Rule

Sen. Orrin Hatch (R-UT) brought up the Notice Posting rule, which would have required employers to conspicuously display a notice informing employees of their rights under the NLRA. This rule was recently invalidated by the D.C. Circuit. Hatch expressed concern whether Hirozawa – who served as Pearce’s chief counsel when this rule was issued – could be objective. Hatch asked Hirozawa about his role in developing this and other Board rules. Hirozawa responded that he “naturally spent a lot of time discussing” the rules with Pearce, but due to the nature of his attorney role, he was “not at liberty” to say anything substantive about those conversations. He noted that the Board recently filed a petition for rehearing in this case. With respect to other rules that have been invalidated, Hirozawa said that the new Board “will have some serious issues to consider and to decide about what, if anything, to do in the future concerning [the Notice Posting] rule.”

Ambush Election Rule

In June 2011, the NLRB issued an extremely controversial proposed rule that would, among other things, dramatically change pre- and post-representation election case procedures. In December 2011, the Board finalized a pared-down version of the rule that contained certain expedited election provisions. The enforcement of this rule, however, was stayed after the U.S. District Court for the District of Columbia in May 2012 found the rule invalid because the Board lacked a quorum when it issued the rule.

Several Senators expressed fear that once the Board is fully constituted, it would be free to revisit not only the expedited election provisions of the rule, but also the portions of the proposed rule that were omitted from the final rule.

Excelsior List

In addition to the ambush election provisions of the proposed rule, the NLRB proposed requiring employers to provide a final voter or “Excelsior” list that includes the employees’ names, addresses, phone numbers and email addresses to the union within two days after the representation election is scheduled. While the final rule issued in December 2011 did not contain these provisions, Chairman Pearce has stated that he intends to proceed with consideration of the omitted portions of the earlier proposed rule. In addition to facilitating union organizing, providing an expedited Excelsior list to unions potentially raises employee privacy issues, Sen. Alexander commented during the hearing. He asked both candidates whether either of them would continue to pursue this portion of the proposed regulation if confirmed.

Schiffer said that these portions of the proposal are still pending, so if the Excelsior list provisions were to once again come before the Board, “I would consider it at that point in time.” Both Schiffer and Hirozawa claimed that they would not want to prejudge the issue before considering it with other members, but acknowledged that the potential privacy issue raised “legitimate concerns that would have to be considered.” Hirozawa noted that these privacy concerns “are very substantial.” Both candidates said they would be willing to consider an employee “opt out” provision that Alexander suggested.

In response to repeated questions about the candidates’ impartiality, both explained that the role of advocate and neutral arbiter are distinct, and that if confirmed, they would take on the role of the latter.

The HELP Committee is scheduled to reconvene tomorrow for an executive session to vote on whether to report the candidates to the full Senate. A vote by the full senate on the package of all five outstanding NLRB nominations is expected next week.