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Labor lawyer Schiffer tells senators she can be impartial on NLRB

Confirmation expected as part of deal to end GOP filibuster threat

By Matthew Hay Brown, The Baltimore Sun

8:17 PM EDT, July 23, 2013

WASHINGTON —

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An Annapolis lawyer who has long represented unions tried to assure Senate Republicans on Tuesday that she could serve impartially on the federal panel that hears disputes between workers and management.

"I understand that this position is different," Nancy Jean Schiffer told the senators at her confirmation hearing.

Schiffer and fellow labor attorney Kent Y. Hirozawa are President Barack Obama's latest picks to fill the long-understaffed National Labor Relations Board. The Senate is expected to confirm the pair to five-year terms as part of the deal last week that ended a GOP filibuster threat and also cleared the way for the Senate confirmation of Marylander Thomas E. Perez as labor secretary. Schiffer and Hirozawa replace two nominees to whom Republicans had objected.

If nominees are not confirmed by next month, the board will lose its quorum to rule on cases.

Schiffer, 63, long advocated for pro-labor legislation as an attorney for the AFL-CIO and the United Auto Workers — experience that drew concern from GOP members of the Senate Committee on Health, Education, Labor and Pensions.

"You've been a very prominent and effective advocate," Republican Sen. Lamar Alexander of Tennessee told her. "What can you say to [assure] employers who would come before a board that might include you that you'll move from the position of advocate — which you've been a pretty fierce one, on behalf of labor — to an impartial judge?"

Schiffer, who was a hearing officer for the National Labor Relations Board earlier in her career, said she was asked the same question in reverse when she left that job to go into private practice: Clients wanted to know how they could trust a former hearing officer to represent their interests.

"I appreciate that these are two different roles: Advocate and neutral arbiter," she said. "I want all litigants who come before the board to feel that they have been dealt with fairly and honestly. … I have no preconceived agenda. I will approach the cases that come before me with an open mind."

The National Labor Relations Board has not operated with a full five members since George W. Bush was president. The parties have been unable to agree on new members since January 2008, and a federal appeals court ruled this year that Obama exceeded his constitutional authority when he tried to fill the panel with recess appointments.

Sen. Tom Harkin, the Democrat who chairs the HELP committee, said a "fully confirmed, fully functional board" would be "a huge step forward for workers, employers, and our country."

"By preventing labor disputes that could disrupt our economy, the work that the board does is vital to every worker and every business across the nation," Harkin said. Losing a quorum, he said, would be "more than an administrative headache — it's a tragedy that denies justice to working men and women across this country."

In recent years, the board has reduced the time requirements for union elections, endorsed the organization of "sub-units" within larger bargaining units, and required employers to post rules in the workplace informing employees of their rights under the National Labor Relations Act. The last rule was invalidated by two federal courts of appeals.

Under the Senate deal last week, GOP senators have agreed to a quick confirmation process, and Democratic Majority Leader Harry Reid has withdrawn a threat to employ "the nuclear option" — a change in Senate rules that would have allowed Democrats to approve Obama's nominees by a simple majority vote.

The HELP committee is expected to vote Wednesdayto send Schiffer and Hirozawa to the full Senate. But that didn't stop Republicans from asking Schiffer about comments she made when she was associate general counsel for the AFL-CIO.

Schiffer testified before a House subcommittee in 2007 in support of the Employee Free Choice Act, legislation that would have enabled union leaders to certify a bargaining unit simply by collecting the signatures of a majority of employees in a workplace, instead of the secret ballot process now required.

The bill, a Democratic priority, has not passed. Its supporters say it would make it easier for workers to organize in the face of intimidation by managers. Its mostly Republican opponents say it would allow unions to coerce workers into joining.

Schiffer testified in 2007 that employers had bribed, harassed, intimidated, spied on, threatened and fired workers to discourage them from organizing.

Sen. Tim Scott, a South Carolina Republican, took exception to that language Tuesday.

"The generic classification of employers … as spies, harassing and threatening, creates an environment or a culture that seems to be inconsistent with most of the employers that I have had the opportunity to converse with," he said. "I would just love to have some sense that there is the ability to be unbiased in the job that your are nominated for."

Schiffer said she was speaking from "personal experiences."

"I saw workers who had been followed into the bathroom while they were at work so that their supervisors could hear who they talked to and what they talked about," she said.

Schiffer grew up in a family of dairy farmers in Michigan, studied at Michigan State University and the University of Michigan Law School and began her career in the Detroit office of the National Labor Relations Board.

She later worked for a private law firm in Detroit that represented labor unions and workers, became a staff attorney for the United Auto Workers, and came to Washington in 2000 to join the office of the general counsel of the AFL-CIO.

She was accompanied at the hearing by her husband of 32 years next month, Goldwin Smith.

Schiffer said a fully confirmed board would include members with a "variety of backgrounds" — meaning both Democrats and Republicans — and reiterated that she wanted it to be viewed as a "fair and honest broker."

Sen. Orrin Hatch said he's heard such pledges before.

"In recent years, we've had former union lawyers nominated for the board who came before this committee and promised that they'd be objective," the Utah Republican said. "Needless to say, I don't think those promises that were made here were kept."

Sen. Al Franken, a Minnesota Democrat, noted that the Senate has confirmed nominees to the board who have represented management.

Harkin said Schiffer and Hirozawa "deserve to be confirmed with strong bipartisan support."

"I hope that this agreement brings a new beginning for the board, so that we can ratchet down the political rhetoric that seems to surround this agency, and instead let the dedicated public servants who work there do their jobs," the Iowa Democrat said. "It's time to put the board back in business."

matthew.brown@baltsun.com

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