She Admitted She Disagrees With The Law She Would Enforce And Thought Nobody Would Notice

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[00:00:00]My job, if confirmed, would be to to um enforce the National Labor Relations Board's decision. So, you've been very critical of it. You just said that you stand by it. You're not going to retract anything, but you're going to be in charge of enforcing it. Doesn't that seem like a problem to you? It does not, because my job >> to me.

[00:00:15]My job, if confirmed as General Counsel, would be to enforce Board orders.

[00:00:19]However, if cases involving those similar issues come back and are filed by charging parties at the regional level, they are investigated on a fact-by-fact basis and we are determined that there is merit to those, there is prosecutorial discretion for the General Counsel to determine whether or not and how to move that case forward. Yes, that's what worries me. It's the prosecutorial discretion that worries me.

[00:00:41]You've been very vociferously, I think it's safe to say, critical of the NLRB's standing precedent in this area.

[00:00:48]And you will have the discretion to enforce it or not, as you just said. I understand your concern, but every General Counsel prior to me has also had the same prosecutorial discretion. I'm committed to enforcing the Act.

[00:01:01]>> They've all been as openly critical and indeed as steadfastly so as you are on what is a key part of now your enforcement responsibility. Again, I will be committed to enforcing the Act and the Act itself, which was, you know, um approved by Congress and established by Congress by >> Well, your job is not to enforce the Act in the first instance. Your job is to enforce what the what the Board has decided is the controlling law, not >> Well, those would be separate procedures that you're describing. Okay, so in other words, you don't you don't see your role as enforcing what the NLRB has done in the past.

[00:01:32]>> My job, if there is questions about the Board Pause. Did you just see that?

[00:01:37]Because I need a second before we watch the rest of this. What you just witnessed is a senator doing exactly what senators are supposed to do. Asking hard questions and refusing to let slippery answers slide. That was Senator Josh Hawley and whether you love him or hate him politically, you cannot watch that clip and tell me he wasn't prepared. This woman is being nominated to be the General Counsel of the NLRB, the person responsible for enforcing labor law in this country. And she is sitting there telling him to his face that she personally disagrees with standing precedent, but don't worry, she'll enforce it. Probably, when she feels like it. And Holly caught it immediately. No grandstanding, no speech making, just sharp focused questioning.

[00:02:23]The kind that makes a nominee visibly uncomfortable for all the right reasons.

[00:02:27]We are going to watch the full video and I promise you it only gets more interesting. But before we do, if you're new here and you care about accountability and workers rights, hit that subscribe button right now. This is exactly the kind of content we break down on this channel. All right, let's get >> Congratulations to the nominees. Thank you all for being here.

[00:02:46]Um Ms. Cherry, let me just start with you if I could. I want to talk a little bit about some NLRB precedents and your views on them. Let's start with captive audience meetings.

[00:02:55]The NLRB decided last year, I believe it was, that captive audience meetings, these are the meetings where workers are forced to sit through mandatory sessions with the employer, often being told by the employer why they should not unionize, perhaps being threatened implicitly or explicitly. I emphasize these are mandatory meetings now, employer with employee. The NLRB decided last year that these captive audience meetings are not consistent with labor law. You've been very critical of this decision. So just explain this to me.

[00:03:29]Thanks for the question and I'm sorry we haven't been able to connect prior to today. I know we've missed a few um opportunities, but I have been critical of that decision and I stand by everything that I have said publicly in relation >> be able to enforce it then?

[00:03:44]My job, if confirmed, would be to to um enforce the National Labor Relations Board's decision. So you've been very critical of it. You just said that you stand by it. You're not going to retract anything, but you're going to be in charge of enforcing it. Doesn't that seem like a problem to you?

[00:03:57]>> It does not because my job >> Explain that to me.

[00:04:00]My job at confirmed as General Counsel would be to enforce board orders.

[00:04:03]However, if cases involving those similar issues come back and are filed by charging parties at the regional level, they are investigated on a fact-by-fact basis and we are determined that there is merit to those. There is prosecutorial discretion for the General Counsel to determine whether or not and how to move that case forward.

[00:04:22]>> Yes, but what worries me, it's the prosecutorial discretion that worries me.

[00:04:26]You've been very vociferously, I think, it's safe to say critical of the NLRB's standing precedent in this area.

[00:04:33]And you will have the discretion to enforce it or not, as you just said. I understand your concern, but every General Counsel prior to me has also had the same prosecutorial discretion. I am committed to enforcing the act.

[00:04:46]>> been as openly critical and indeed as steadfastly so as you are on what is a key part of now your enforcement responsibility. Again, I will be committed to enforcing the act and the act itself, which was, you know, um approved by Congress and established by Congress >> Well, your job is not to enforce the act in the first instance. Your job is to enforce what the what the board has decided is the controlling law, no?

[00:05:10]>> Well, those would be separate procedures that you're describing. Okay, so in other words, you don't you don't see your role as enforcing what the NLRB has done in the past.

[00:05:17]>> My job, if there is questions about the board order, which is not a self-enforcing action, my job would be to to enforce that action in the courts.

[00:05:25]And and you're telling me you would do that despite being critical of it. That would be my job. Despite Well, right, but you have discretion to do it or not.

[00:05:32]And what nothing you've said so far has allayed my concerns. In fact, it's you're you're worsening them as I sit here. Well, Senator, I think you're confusing two issues. Enforcing a board order is separate if a new case is filed in a region and I'm able to investigate that. The hard-working field attorneys take a look at that case, determine whether or not there is merit. At that point, that is a different case. That is not the Amazon case. Standing precedent would be the Amazon case.

[00:05:57]So, my question to you is, will you enforce the precedents of the NLRB even if you disagree with them? I will enforce the board's order, but I will utilize prosecutorial discretion where necessary and I think is appropriate.

[00:06:10]Okay, that's not reassuring. Um you mentioned Amazon, so let's just let's just talk about Amazon. They're a client of yours?

[00:06:17]They are.

[00:06:18]So is Apple, I think.

[00:06:20]Correct. Activision? Correct. You'll recuse yourself from any enforcement decisions or actions involving any of these people, I assume? Yes, Senator.

[00:06:29]Um when it comes to Amazon, are you familiar with Amazon's delivery service partner program?

[00:06:34]I am I'm aware of it. Amazon uses this program to operate its delivery vehicle fleet. Now, you may know drivers wear Amazon vests, they drive Amazon branded vehicles, they deliver Amazon branded packages to Amazon customers. The company controls their time schedule, their delivery, uh their terms of service, uh the terms of their employment, but the company says at the same time, actually they're not really our employees. They're wearing their gear, they are driving their trucks, but they say, "Oh, these are not our employees."

[00:07:06]Um they say that they these are in fact subcontractors. Now, it's hard to imagine that this actually satisfies the joint employer rule.

[00:07:16]What's what's your view on this? The 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. And, you know, depending on what happens and it is an incredibly fact-intensive um investigation that has to take pet place to determine whether or not someone is a joint employer or not. So, 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? Well, I'm [snorts] not going to comment on Amazon directly or the program you've described, but I will say that any case that comes before me I've confirmed I will take a very hard look at because it is an incredibly fact-intensive analysis.

[00:08:01]>> Yeah, it's fact-intensive, but it's it's more than just fact-intensive in some legal way. It really matters for the livelihood of thousands and thousands of workers. Which 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.

[00:08:22]Um all right, thank you, Mr. Chairman. I have a lot more questions for you, Ms. Kerry. I have to say, I'm pretty concerned with your record and frankly the answers you've given me today. Thank you, Mr. Chairman.

[00:08:33]into it. All right, now we've seen the whole thing. Let me go through this properly because there is a lot to unpack. First, the captive audience meeting issue. This is where Holly set the tone for the entire hearing. He didn't come in swinging emotionally. He came in with one very specific, very targeted question. You've been critical of this decision. You'll now be responsible for enforcing it. How does that work? And her answer?

[00:08:59]I stand by everything I've said publicly. That is an extraordinary thing to say in a confirmation hearing. She is essentially telling the Senate, telling the public, that she personally disagrees with the law she is about to be tasked with upholding. And she said it with confidence, like it wasn't even a problem. She tried to use prosecutorial discretion as a shield, and look, prosecutorial discretion is real. It exists in law, but Holly's point wasn't a legal technicality. It was a character and integrity point. He was saying every other general counsel had that same discretion. None of them came in openly hostile to the precedents they were supposed to enforce. She never had a good answer for that. Then we get to Amazon. She represented Amazon, Apple, and Activision. She says she'll recuse herself. Fine. But think about the scope of that recusal. Amazon alone has hundreds of ongoing labor disputes.

[00:09:56]Apple, Activision, same story. These are some of the biggest labor fights in the country right now. So, how much of this job can she actually do without hitting a conflict of interest? Hawley didn't need to belabor it. He planted the seed and moved on. Smart. Then the Amazon delivery driver section, and this was my favorite part of the whole exchange.

[00:10:19]Hawley laid out the facts so plainly, there was nowhere for her to go. Drivers in Amazon vests, Amazon trucks, Amazon packages, Amazon controlled schedules, and Amazon says not our employees.

[00:10:33]Hawley basically said, "Come on. Does that actually pass the straight-face test?" And she couldn't answer it. She retreated straight to it's very fact-intensive, which sure, everything in law is fact-intensive, but sometimes facts are also just obvious, and Hawley was pointing right at the obvious. What I respect most about how he handled this is that he never lost his composure. He wasn't performing outrage for the camera. He was doing the actual work of oversight. When she tried to tell him he was conf- using two issues, he didn't get rattled. He just redirected back to the central concern. And at the end, he was straight with it.

[00:11:14]"I'm pretty concerned with your record and the answers you've given me today."

[00:11:18]No drama, just an honest assessment.

[00:11:21]Here is my overall take. What you want in someone running labor enforcement in this country is someone who respects the institution they are walking into.

[00:11:29]Someone who can separate their personal views from their professional obligations. This hearing raised serious, legitimate questions about whether this nominee can do that, and Holly was the one willing to ask them out loud. That is not partisan. That is accountability, and we need a lot more of it. If this video gave you something to think about, share it because these hearings matter, and not enough people are watching them. Drop your thoughts in the comments. I want to know what you think. Did she give satisfying answers?

[00:11:58]Did Holly push too hard?

[00:12:00]Let's talk about it. I'll see you in the next one.