NLRB Top Lawyer Pick’s Prospects Clouded by GOP Questions (1)

President Donald Trump’s pick to be general counsel of the National Labor Relations Board faced aggressive questioning and tough criticism from a Republican senator key to her confirmation.

Crystal Carey, an attorney with Morgan, Lewis, & Bockius LLP, didn’t appear to satisfy the concerns of Sen. Josh Hawley (R-Mo.) during a hearing before the Senate Health, Education, Labor and Pensions Committee on Wednesday.

“I have to say, I’m pretty concerned with your record and, frankly, the answers you’ve given me today,” Hawley said.

Hawley said he’s worried about Carey refusing to enforce NLRB precedent that she disagrees with, particularly the board’s 2024 decision outlawing mandatory anti-union meetings. Carey has publicly criticized that ruling, arguing it went too far in limiting employers’ ability to communicate with workers.

Carey—whose nomination was sent to the panel more than 110 days ago—needs committee approval before she can head to the full Senate for a confirmation vote. The HELP committee has 12 Republicans and 11 Democrats, so her nomination could fail if Hawley and all the Democrats vote against her.

If confirmed, Carey is expected to lead an effort to dismantle worker-friendly NLRB precedents set during the Biden administration.

The NLRB has been without a functioning quorum for most of the year because of Trump’s unprecedented termination of a board member. The NLRB’s inability to issue decisions will limit what Carey could accomplish as general counsel if the board continues with fewer than three members.

Discretion Flashpoint

Hawley’s grilling of Carey—which was more extensive than from any Democrat on the committee—matched the Missouri senator’s increasingly labor-friendly approach. Earlier this year, he proposed a bill designed to help new unions reach labor contracts, which followed circulation of his larger pro-labor policy framework.

While Hawley spoke positively about the NLRB’s decision barring captive audience meetings, Carey said that she stood by her criticism of the ruling.

“So you’ve been very critical of it, you just said you stand by it, you’re not going to retract anything, but you’re going to be in charge of enforcing it,” Hawley said. “Doesn’t that seem like a problem to you?”

Carey said she would have prosecutorial discretion—like all other NLRB general counsels—to determine what to do with administrative cases, but that she would be required to enforce board orders in court.

“Nothing you’ve said so far have allayed my concerns,” Hawley said. “In fact, you’re worsening them as I sit here.”

Independence Clear, Constitutionality Hazy

Later in the hearing, HELP Committee Chair Bill Cassidy (R-La.) asked Carey how she would soothe Hawley’s concerns about her choices related to captive audience meeting cases being determined by her discretion rather than board precedent.

“I believe that the agency is an independent agency and I believe that the authority to make those prosecutorial decisions lies with the confirmed general counsel,” she said.

Her statements about NLRB autonomy contrasted with those of Brittany Panuccio, a nominee for the Equal Employment Opportunity Commission who was also at the hearing. Panuccio testified that the EEOC is a part of the executive branch and subject to direct presidential control.

But Carey refused to say whether the NLRB is constitutional, dodging direct questions from Sen. Bernie Sanders (I-Vt.), the committee’s ranking member.

“I’m sitting here as a nominee for general counsel of the National Labor Relations Board, and my position is that case will be decided in the courts, and once there is an answer, we will move forward,” she said.

“You have no answer as to whether or not the agency you hope to work for is constitutional,” Sanders replied.