During a Senate Health, Education, Labor, and Pensions Committee hearing Wednesday, Sen. Josh Hawley (R-MO) sparred with President Trump's nominee to be General Counsel of the National Labor Relations Board Crystal Carey about the legality of captive audience meetings.
00:00Congratulations to the nominees. Thank you all for being here.
00:03Ms. Carey, let me just start with you, if I could.
00:06I want to talk a little bit about some NLRB precedents and your views on them.
00:10Let's start with captive audience meetings.
00:12The NLRB decided last year, I believe it was, that captive audience meetings,
00:17these are the meetings where workers are forced to sit through mandatory sessions with the employer,
00:24often being told by the employer why they should not unionize,
00:28perhaps being threatened implicitly or explicitly.
00:31I emphasize these are mandatory meetings now, employer with employee.
00:35The NLRB decided last year that these captive audience meetings are not consistent with labor law.
00:41You've been very critical of this decision.
00:43So just explain this to me.
00:46Thanks for the question, and I'm sorry we haven't been able to connect prior to today.
00:50I know we've missed a few opportunities, but I have been critical of that decision,
00:55and I stand by everything that I have said publicly in relation to you.
00:59So you wouldn't be able to enforce it then?
01:01My job, if confirmed, would be to enforce the National Labor Relations Board's decision.
01:07So you've been very critical of it.
01:09You just said that you stand by it.
01:10You're not going to retract anything, but you're going to be in charge of enforcing that.
01:13Doesn't that seem like a problem to you?
01:14It does not, because my job...
01:15Explain that to me.
01:17My job, if confirmed as general counsel, would be to enforce board orders.
01:20However, if cases involving those similar issues come back and are filed by charging parties at the regional level,
01:27they are investigated on a fact-by-fact basis, and we are determined that there is merit to those.
01:33There is prosecutorial discretion for the general counsel to determine whether or not and how to move that case forward.
01:39That's what worries me.
01:40It's the prosecutorial discretion that worries me.
01:43You've been very vociferously, I think, it's safe to say, critical of the NLRB's standing precedent in this area.
01:50And you will have the discretion to enforce it or not, as you just said.
01:54I understand your concern, but every general counsel prior to me has also had the same prosecutorial discretion.
02:01I am committed to enforcing the act.
02:03I've not been as openly critical and, indeed, as steadfastly so as you are on what is a key part of now your enforcement responsibility.
02:11Again, I will be committed to enforcing the act.
02:14And the act itself, which was, you know, approved by Congress and established by Congress.
02:20Well, your job is not to enforce the act in the first instance.
02:22Your job is to enforce what the board has decided is the controlling law.
02:27Those would be separate procedures that you're describing.
02:30Okay.
02:30So, in other words, you don't see your role as enforcing what the NLRB has done in the past.
02:34My job, if there is questions about the board order, which is not a self-enforcing action, my job would be just to enforce that action in the courts.
02:42And you're telling me you would do that, despite being critical of it?
02:45That would be my job.
02:47Well, right.
02:48But you have discretion to do it or not.
02:49And nothing you've said so far has allayed my concerns.
02:52In fact, you're worsening them as I sit here.
02:54Well, Senator, I think you're confusing two issues.
02:56Enforcing a board order is separate if a new case is filed in a region.
03:01And I'm able to investigate that.
03:03The hardworking field attorneys take a look at that case, determine whether or not there is merit.
03:07At that point, that is a different case.
03:09That is not the Amazon case.
03:11Standing precedent would be the Amazon case.
03:14So, my question to you is, will you enforce the precedents of the NLRB, even if you disagree with them?
03:21I will enforce the board's order, but I will utilize prosecutorial discretion where necessary and I think is appropriate.
03:28Okay.
03:28That's not reassuring.
03:29You mentioned Amazon.
03:31So, let's just talk about Amazon.
03:33They're a client of yours?
03:34They are.
03:35So, is Apple, I think?
03:37Correct.
03:38Activision?
03:39Correct.
03:40You'll recuse yourself from any enforcement decisions or actions involving any of these people, I assume?
03:45Yes, Senator.
03:46When it comes to Amazon, are you familiar with Amazon's Delivery Service Partner Program?
03:51I am aware of it.
03:53Amazon uses this program to operate its delivery vehicle fleet.
03:56Now, you may know drivers wear Amazon vests.
03:59They drive Amazon-branded vehicles.
04:01They deliver Amazon-branded packages to Amazon customers.
04:05The company controls their time schedule, their delivery, their terms of service, the terms of their employment.
04:13But the company says at the same time, actually, they're not really our employees.
04:17They're wearing their gear.
04:18They are driving their trucks.
04:20But they say, oh, these are not our employees.
04:23They say that these are, in fact, subcontractors.
04:27Now, it's hard to imagine that this actually satisfies the joint employer rule.
04:34What's your view on this?
04:35The joint employer rule has been, for lack of better terms, one of the issues that has flip-flopped a lot in the labor and legal community generally.
04:45And, you know, depending on what happens, and it is an incredibly fact-intensive investigation that has to take place to determine whether or not someone is a joint employer or not.
04:56So, do you think that Amazon's attempt to control every detail of its drivers' lives, schedules, deliveries, while simultaneously treating them as non-employees, you think that doesn't violate the joint employer rule?
05:08Well, I'm not going to comment on Amazon directly or the program you've described.
05:11But I will say that any case that comes before me, I've confirmed.
05:14I will take a very hard look at because it is an incredibly fact-intensive analysis.
05:19Yeah, it's fact-intensive.
05:20But it's more than just fact-intensive in some legal way.
05:22It really matters for the livelihood of thousands and thousands of workers.
05:26Which is why it's incredibly important that whoever is investigating that, and if I am confirmed as general counsel, will ultimately land in my lap, that we do a really good job in making sure that we're analyzing all of the facts before us.
05:40All right. Thank you, Mr. Chairman.
05:41I have a lot more questions for you, Ms. Carey.
05:43I have to say, I'm pretty concerned with your record and, frankly, the answers you've given me today.
