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+ - EMERGING TRENDS AT THE NATIONAL LABOR RELATIONS BOARD
+
+[House Hearing, 112 Congress]
+[From the U.S. Government Publishing Office]
+
+
+
+ EMERGING TRENDS AT THE NATIONAL LABOR RELATIONS BOARD
+
+=======================================================================
+
+ HEARING
+
+ before the
+
+ SUBCOMMITTEE ON HEALTH,
+ EMPLOYMENT, LABOR AND PENSIONS
+
+ COMMITTEE ON EDUCATION
+ AND THE WORKFORCE
+
+ U.S. House of Representatives
+
+ ONE HUNDRED TWELFTH CONGRESS
+
+ FIRST SESSION
+
+ __________
+
+ HEARING HELD IN WASHINGTON, DC, FEBRUARY 11, 2011
+
+ __________
+
+ Serial No. 112-4
+
+ __________
+
+ Printed for the use of the Committee on Education and the Workforce
+
+
+ Available via the World Wide Web:
+ http://www.gpoaccess.gov/congress/house/education/index.html
+ or
+ Committee address: http://edworkforce.house.gov
+
+ ----------
+ U.S. GOVERNMENT PRINTING OFFICE
+
+64-230 PDF WASHINGTON : 2011
+
+For sale by the Superintendent of Documents, U.S. Government Printing
+Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
+DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
+Washington, DC 20402-0001
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+ COMMITTEE ON EDUCATION AND THE WORKFORCE
+
+ JOHN KLINE, Minnesota, Chairman
+
+Thomas E. Petri, Wisconsin George Miller, California,
+Howard P. ``Buck'' McKeon, Senior Democratic Member
+ California Dale E. Kildee, Michigan
+Judy Biggert, Illinois Donald M. Payne, New Jersey
+Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
+Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
+Virginia Foxx, North Carolina Virginia
+Duncan Hunter, California Lynn C. Woolsey, California
+David P. Roe, Tennessee Ruben Hinojosa, Texas
+Glenn Thompson, Pennsylvania Carolyn McCarthy, New York
+Tim Walberg, Michigan John F. Tierney, Massachusetts
+Scott DesJarlais, Tennessee Dennis J. Kucinich, Ohio
+Richard L. Hanna, New York David Wu, Oregon
+Todd Rokita, Indiana Rush D. Holt, New Jersey
+Larry Bucshon, Indiana Susan A. Davis, California
+Trey Gowdy, South Carolina Raul M. Grijalva, Arizona
+Lou Barletta, Pennsylvania Timothy H. Bishop, New York
+Kristi L. Noem, South Dakota David Loebsack, Iowa
+Martha Roby, Alabama Mazie K. Hirono, Hawaii
+Joseph J. Heck, Nevada
+Dennis A. Ross, Florida
+Mike Kelly, Pennsylvania
+[Vacant]
+
+ Barrett Karr, Staff Director
+ Mark Zuckerman, Minority Staff Director
+
+ SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS
+
+ DAVID P. ROE, Tennessee, Chairman
+
+Joe Wilson, South Carolina Robert E. Andrews, New Jersey
+Glenn Thompson, Pennsylvania Ranking Minority Member
+Tim Walberg, Michigan Dennis J. Kucinich, Ohio
+Scott DesJarlais, Tennessee David Loebsack, Iowa
+Richard L. Hanna, New York Dale E. Kildee, Michigan
+Todd Rokita, Indiana Ruben Hinojosa, Texas
+Larry Bucshon, Indiana Carolyn McCarthy, New York
+Lou Barletta, Pennsylvania John F. Tierney, Massachusetts
+Kristi L. Noem, South Dakota David Wu, Oregon
+Martha Roby, Alabama Rush D. Holt, New Jersey
+Joseph J. Heck, Nevada Robert C. ``Bobby'' Scott,
+Dennis A. Ross, Florida Virginia
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+ C O N T E N T S
+
+ ----------
+ Page
+
+Hearing held on February 11, 2011................................ 1
+
+Statement of Members:
+ Andrews, Hon. Robert E., ranking minority member,
+ Subcommittee on Health, Employment, Labor and Pensions..... 3
+ Additional submissions for the record:
+ Federal Register Notice, Dec. 16, 1949, 14 FR 7516... 76
+ Letter, dated Feb. 25, 2011, from Lafe Solomon,
+ National Labor Relations Boards (NLRB), including
+ additional materials............................... 79
+ NLRB letter, dated Nov. 26, 2003, sent to attorney
+ general, State of North Dakota..................... 122
+ NLRB letter, dated Feb. 25, 2011, sent to Chairman
+ Roe................................................ 125
+ Roe, Hon. David P., Chairman, Subcommittee on Health,
+ Employment, Labor and Pensions............................. 1
+ Prepared statement of.................................... 3
+
+Statement of Witnesses:
+ Estlund, Cynthia L., Catherine A. Rein professor of law, New
+ York University School of Law.............................. 18
+ Prepared statement of.................................... 20
+ King, G. Roger, partner, Jones Day........................... 27
+ Prepared statement of.................................... 30
+ Additional submissions: Exhibits B, C and D.............. 30
+ Miscimarra, Philip A., senior fellow, the Wharton School,
+ University of Pennsylvania; partner, Morgan Lewis & Bockius
+ LLP........................................................ 6
+ Prepared statement of.................................... 7
+ Rosenfeld, Arthur F., former National Labor Relations Board
+ general counsel............................................ 14
+ Prepared statement of.................................... 16
+
+
+ EMERGING TRENDS AT THE
+ NATIONAL LABOR RELATIONS BOARD
+
+ ----------
+
+
+ Friday, February 11, 2011
+
+ U.S. House of Representatives
+
+ Subcommittee on Health, Employment, Labor and Pensions
+
+ Committee on Education and the Workforce
+
+ Washington, DC
+
+ ----------
+
+ The subcommittee met, pursuant to call, at 10:00 a.m., in
+room 2175, Rayburn House Office Building, Hon. Phil Roe
+[chairman of the subcommittee] presiding.
+ Present: Representatives Roe, Thompson, Walberg,
+DesJarlais, Rokita, Bucshon, Barletta, Noem, Roby, Heck, Ross,
+Andrews, Kucinich, Loebsack, Kildee, Hinojosa, McCarthy,
+Tierney, Holt, and Scott.
+ Also Present: Representative Kline.
+ Staff Present: Kirk Boyle, General Counsel; Ken Serafin,
+Workforce Policy Counsel; Marvin Kaplan, Professional Staff
+Member; Loren Sweatt, Professional Staff Member; Joseph
+Wheeler, Professional Staff Member; Casey Buboltz, Coalitions
+and Member Services Coordinator; Ed Gilroy, Director of
+Workforce Policy; Ryan Kearney, Legislative Assistant; Brian
+Newell, Press Secretary; Molly McLaughlin Salmi, Deputy
+Director of Workforce Policy; Linda Stevens, Chief Clerk/
+Assistant to the General Counsel; Aaron Albright, Minority
+Deputy Communications Director; Tylease Alli, Minority Hearing
+Clerk; Daniel Brown, Minority Staff Assistant Jody Calemine,
+Minority General Counsel; Denise Forte, Minority Director of
+Education Policy; Brian Levin, New Media Press Assistant;
+Celine McNicholas, Minority Labor Counsel; Richard Miller,
+Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority
+Labor Counsel; Julie Peller, Minority Deputy Staff Director;
+Meredith Regine, Minority Policy Associate, Labor; Michele
+Varnhagen, Minority Chief Policy Advisor and Labor Policy
+Director; and Mark Zuckerman, Minority Staff Director.
+ Chairman Roe. I call the meeting to order. Good morning
+everyone. Let me take a moment to welcome my colleagues to our
+first subcommittee hearing of the 112th Congress. This
+subcommittee covers a broad range of programs and policies that
+have a direct impact on the lives of millions of workers and
+their families. There are a number of challenges facing the
+American workforce, including high unemployment and rising
+health care costs. Both will be at the forefront of our
+subcommittee's agenda in the weeks and months ahead.
+ I look forward to working with our senior Democratic
+member, Rob Andrews, who brings his own depth of knowledge and
+ideas to these critical issues. I know we will work together in
+areas where we can find common ground and where we can't, I
+hope we are able to reflect upon this committee and uphold our
+long tradition of agreeing to be agreeable without being
+disagreeable.
+ I would also like to thank or witnesses for taking time out
+of their busy schedules for being with us today and as always,
+our witnesses provide important insight and expertise on the
+issues this subcommittee addresses, and we are grateful all of
+you are here today to share your views with us.
+ As we begin the work of this subcommittee, we are mindful
+that for 21 consecutive months, unemployment in this country
+has been at or above 9 percent. The Department of Labor reports
+nearly 14 million workers are unemployed. Business leaders, and
+especially small business owners express concerns about the
+uncertainty they face and the politics out of Washington that
+continue to exacerbate that uncertainty. That is why today's
+discussion about the National Labor Relations Board is so
+important.
+ The NLRB was created more than 75 years ago to perform two
+functions: First, to determine by free democratic choice
+whether workers desire union representation and if so, by which
+union; and second, to prevent and remedy unfair labor practices
+by employers and unions. The Board serves as a quasi judicial
+body. Its five members are chosen by the President, and the
+majority of members share the President's views on labor
+policy. As a result, the Board has generated a lot of debate
+over the years. However, that debate has recently been elevated
+to new heights since the Board has abandoned its traditional
+sense of fairness and neutrality and instead embraced a far
+more activist approach.
+ Numerous actions by the Board suggest it is eager to tilt
+the playing field in favor of powerful special interests
+against the interests of rank and file workers.
+ Last August, the Board decided to weaken protections for
+employers by redefining secondary boycotts allowing unions to
+banner in front of neutral employers. During that same month,
+the Board expanded its jurisdiction beyond what some argue is
+defined in the law asserting its authority over religious
+institution's child care centers. It also has moved to restrict
+free speech rights of employers as well as increase employer
+penalties.
+ Recently, it threatened legal action against a number of
+States that tried to protect workers' rights to a secret
+ballot. And it has signaled an interest in revising a decision
+critical to preserving the sanctity of the secret ballot.
+ The Board plays an important role in the strength of our
+workforce. At a time of high unemployment, every agency,
+department and board of the Federal Government must set its own
+agenda aside and work toward accomplishing the agenda mandated
+by the American people. Getting this economy back on track and
+getting the employed back to work, I hope today's hearing will
+help determine whether the NLRB is a partner in that effort.
+ I would like now to yield to Mr. Andrews and ranking member
+for his opening comments, and I think Mr. Andrews needs to move
+over to the House floor so I will yield to the ranking member.
+ [The statement of Mr. Roe follows:]
+
+ Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on
+ Health, Employment, Labor and Pensions
+
+ Good morning everyone. Allow me to take a moment to welcome my
+colleagues to our first subcommittee hearing of the 112th Congress.
+ This subcommittee covers a broad range of programs and policies
+that have a direct impact on the lives of millions of workers and their
+families. There are a number of challenges facing the American
+workforce, including high unemployment and rising health care costs.
+Both will be at the forefront of our subcommittee's agenda in the weeks
+and months ahead.
+ I look forward to working with our ranking Democratic member, Rob
+Andrews, who brings his own depth of knowledge and ideas to these
+critical issues. I know we will work together in areas where we can
+find common ground, and where we can't, I hope we are able to reflect
+well upon this subcommittee and uphold our long tradition of
+disagreeing without being disagreeable.
+ I would also like to thank our witnesses for taking time out of
+their busy schedules to be with us today. As always, our witnesses
+provide important insight and expertise on the issues this subcommittee
+addresses, and we are grateful that you all are here today to share
+your views with us.
+ As we begin the work of this subcommittee, we are mindful that for
+21 consecutive months unemployment has been at or above 9 percent. The
+Department of Labor reports nearly 14 million workers are unemployed.
+Business leaders--and especially small business owners--express
+concerns about the uncertainty they face and the policies out of
+Washington that continue to exacerbate that uncertainty.
+ That is why today's discussion about the National Labor Relations
+Board is so important. The NLRB was created more than 75 years ago to
+perform two functions: first, to determine by free democratic choice
+whether workers desire union representation and if so, by which union;
+and second, to prevent and remedy unfair labor practices by employers
+and unions.
+ The board serves as a quasi-judicial body. Its five members are
+chosen by the President and the majority of members share the
+President's views on labor policy. As a result, the board has generated
+a lot of debate over the years. However, that debate has recently been
+elevated to new heights since the board abandoned its traditional sense
+of fairness and neutrality and instead embraced a far-more activist
+approach.
+ Numerous actions by the board suggest it's eager to tilt the
+playing field in favor of powerful special interests against the
+interests of rank-and-file workers.
+ Last August, the board decided to weaken protections for employers
+by redefining secondary boycotts, allowing unions to banner in front of
+neutral employers.
+ During that same month, the board expanded its jurisdiction beyond
+what some argue is defined in the law, asserting its authority over a
+religious institution's child care centers.
+ It has also moved to restrict the free speech rights of employers,
+as well as increase employer penalties. Recently it threatened legal
+action against a number of states that tried to protect workers' right
+to a secret ballot. And it has signaled an interest in revisiting a
+decision critical to preserving the sanctity of the secret ballot.
+ The board plays an important role in the strength of our workforce.
+At a time of high unemployment, every agency, department, and board of
+the federal government must set its own agenda aside and work toward
+accomplishing the agenda mandated by the American people--getting this
+economy back on track and unemployed workers back to work. I hope
+today's hearing will help determine whether the NLRB is a partner in
+that effort.
+ I would like to now yield to Mr. Andrews, the ranking member, for
+his opening remarks.
+ ______
+
+ Mr. Andrews. Well, thank you, Mr. Chairman, good morning.
+Congratulations on your election to the chairmanship of this
+subcommittee, and thank you for the gentile and open spirit
+with which you conduct yourself with your colleagues. You are a
+very well respected person, not just around this committee, but
+around the Congress, and I look forward to working with you. I
+appreciate very much your contributions to our institution.
+ I would like to thank the witnesses for their preparation
+and testimony this morning. I hope that we will learn a lot by
+listening to you.
+ As we meet this morning, there are 15 million Americans
+officially unemployed. And I don't think any of us have lived
+through a time as difficult as this one in the U.S. economy for
+our neighbors and for our friends and for many of our own
+families.
+ I think that the American people have sounded a clarion
+call for us to put aside our differences and work together to
+try to fix this underlying economic problem. And it is for that
+reason that I don't think that this is the most productive use
+of the committee or the Congress' time. The operating
+hypothesis for this hearing, as my friend just stated, is that
+the National Labor Relations Board has ``abandoned its sense of
+fairness and neutrality,'' and embarked on a ``activist
+agenda.''
+ The evidence for that proposition appears to rest on three
+points: The first is that there are a host of controversial
+decisions that have emanated from the Board in recent months
+which are shaking the American economy.
+ I find that to be a curious conclusion given the fact that
+since the Board was fully reconstituted with a quorum in April
+of 2010, 83 percent of its decisions have been unanimous. To
+put that in some historic context, during the Bush years, the
+percentage of NLRB decisions that were unanimous was 67
+percent. So if the standard for abandoning fairness and
+neutrality is the number of controversial decisions, it looks
+like there has been more fairness and neutrality, not less, in
+recent decisions of the Board.
+ The second piece of evidence appears to be that the Board
+has embarked on an admittedly unusual but certainly not
+unprecedented practice of promulgating rules. Most of the
+decisions, as the witnesses will educate us, of the NLRB are
+made by adjudication of decisions before the Board rather than
+by rulemaking. The rule that has triggered today's hearing is a
+rule which essentially says that employers have to download
+from a computer a poster and put it on their bulletin board.
+The poster says, here are your rights as a worker. If you want
+to join a union, here are your rights vis-a-vis your employer,
+and if you are in a union and you think that your union has
+done something illegal to you, here is your rights against your
+union.
+ So the activism that has bred this morning's activities
+consist of employers being required to download a poster and
+put it on their bulletin board.
+ Frankly, the activism that I think that we would need would
+be a bipartisan discussion on how to create jobs in the
+country, not avoid something as relatively modest as that.
+ And then the third piece of evidence is that the Board has
+made evidently a series of decisions with which the majority
+disagrees. Well, I would submit that the majority has three
+remedies if it disagrees with the substance of the Board's
+decision. The first is a political remedy. Obviously, there
+will be a Presidential election in 2012, and the voters will
+decide whom the occupant of the White House should be that
+should make decisions to nominate for advise and consent by the
+Senate members of the Board. And the public will work its will.
+ The second remedy for any perceived decision of the Board
+that is incorrect is judicial. If a party is aggrieved by a
+decision of the National Labor Relations Board, it has the
+right to go to the Court of Appeals and have the courts of this
+country decide whether the Board acted within its purview or
+outside of its purview.
+ And then the third remedy is legislative. If, in fact, the
+committee feels that there has been some interpretation of the
+labor laws which is harmful to the economy, the committee has
+within its jurisdiction and authority the ability to file a
+bill, have hearings, mark up the bill, put it up for a vote on
+the House floor and the Senate floor and see if the President
+will sign it.
+ So it strikes me that what we are doing here this morning
+really refutes the principle or the hypothesis that the Board
+has abandoned its sense of fairness and neutrality. I think
+that what is more accurate is that the majority has abandoned
+its promise to quote, focus like a laser beam on the problem of
+unemployment.
+ And so rather than focusing on these matters this morning,
+it would be our view that we should work together to try to
+create jobs as I am sure we will be able to work together on
+many issues in the future.
+ Again, I congratulate the chairman. I thank him for his
+time. Let me apologize to the witnesses in advance for one
+thing. Our committee is now responsible for time on the House
+floor for the resolution before the House today, and I am
+required to be there for a few minutes to participate in that.
+My departure is by no means a reflection of my lack of interest
+in your testimony. I have read your statements, and I will be
+back as soon as I can. I thank the chairman for that.
+ Chairman Roe. I thank the ranking member for his opening
+comments.
+ Pursuant to committee rule 7(c), all members will be
+permitted to submit written statements to be included in the
+permanent hearing record. And without objection, the hearing
+record will remain open for 14 days to allow such statements
+and other extraneous materials referenced during the hearing to
+be submitted for the official hearing record. I appreciate all
+the witnesses being here.
+ It is now my pleasure to introduce this distinguished panel
+to the committee.
+ Mr. Philip Miscimarra is a partner with Morgan Lewis's
+labor and employment practice, a senior fellow at the
+University of Pennsylvania's Wharton Business School and
+managing director of the Wharton Center for Human Resources
+Research Advisory Group. He received his B.A. degree from
+Duquesne University and his J.D. and MBA from the University of
+Pennsylvania. And thank you for being here.
+ Mr. Arthur Rosenfeld is a former National Labor Relations
+Board general counsel. Mr. Rosenfeld served as NLRB general
+counsel from of June 2001 to June 2005. And prior to that, Mr.
+Rosenfeld was senior Republican labor counsel in the Senate
+Health, Education, Labor, Pensions Committee. Mr. Rosenfeld
+received his B.A. degree from Muhlenberg College in Allentown,
+Pennsylvania, his MBA in labor relations from Lehigh University
+and his J.D. from Villanova. Thank you for being here.
+ Ms. Cynthia Estlund is professor of law at the New York
+University School of Law. And prior to joining the faculty at
+NYU Law, she filled multiple positions at the University of
+Texas Law and Columbia Law School, finally serving as vice dean
+for research. She received her B.A. in government from Lawrence
+University and J.D. from Yale Law School.
+ Mr. Roger King is partner in Jones Day. Mr. King represents
+management in matters arising under the National Labor
+Relations Act. Prior to his work in the private sector, Mr.
+King was labor relations counsel for Senator Robert Taft. He is
+a graduate of Miami University and his J.D. from Cornell
+University. Thank you for being here Mr. King.
+ The lights, as you all have been here probably many times
+before, the green light is 5 minutes, and I am going to try to
+keep my comments to 5 minutes. When the light in the center
+comes on, you have got 1 minute, and I won't cut you off in mid
+sentence, but we are going to hold to the 5-minute rule fairly
+closely. I would appreciate the members doing the same thing.
+ I would like again to thank the witnesses for taking time
+to testify today.
+ And I would appreciate now, Mr. Miscimarra, if you would
+begin with your testimony.
+
+ STATEMENT OF PHILIP MISCIMARRA, PARTNER, MORGAN, LEWIS &
+ BOCKIUS LLP
+
+ Mr. Miscimarra. Chairman Roe, Ranking Member Andrews and
+subcommittee members, thank you for your invitation to
+participate in this hearing. It is an honor to appear before
+you today.
+ My name is Philip Miscimarra. I am a senior fellow at the
+University of Pennsylvania's Wharton School in the Wharton
+Center for Human Resources. I am also a partner in the law firm
+Morgan, Lewis and Bockius.
+ The National Labor Relations Act centers around a
+bargaining model where each side's leverage largely stems from
+economic damage it may inflict on the other side. In a global
+economy, this places unions and companies in a relay race. And
+all too often in the United States, the unions incentive is to
+use the baton to injure the employer instead of running the
+race. Companies and employees and unions suffer from this
+conflict, especially small businesses. Expanding the Act's
+coverage and making the weapons more destructive without
+direction from Congress to do so runs counter to the Act's
+primary objective, which is to foster economic stability.
+ The NLRA incorporates many Congressional policy decisions.
+First, the Act reflects fundamental choices by Congress in a
+balancing of interests between employers, unions, employees and
+the public.
+ Second, the Act was adopted for the overriding purpose of
+eliminating burdens on commerce. Third, a basic policy of the
+Act is to achieve stability of labor relations. Fourth, another
+important policy decision involves the Act's secondary boycott
+provisions which protect neutral parties from labor disputes.
+ The NLRB is charged with the difficult and delicate
+responsibility of administering the Act. I respect the members
+of the Board, its acting general counsel and others who work in
+the agency. The work of the NLRB is not easy, and it is fraught
+with controversy. At the same time, there are definite limits
+on the Board's authority. Recent board decisions raise
+questions concerning the congressional policy choices that I
+have mentioned. I will briefly discuss three lines of cases.
+ First, in several decisions, the Board has concluded it is
+not coercion or picketing when multiple union supporters hold
+20-foot long banners directed at neutral companies. This
+effectively eliminates the Act's secondary boycott protection
+for neutrals, even though it would violate the Act if the same
+number of people walked around carrying smaller signs within
+the same area. In these banner cases, there are well-reasoned
+dissenting opinions by former Member Shaumber and current
+Member Hayes.
+ In another decision, Dana Corporation, the Board, with
+member Hayes dissenting, upheld a written agreement which
+spelled out employment terms for unrepresented employees at
+nonunion facilities with most of the terms to take effect after
+the union received future card check recognition. Section 8(f)
+of the Act permits these non-majority agreements, but only in
+the construction industry. This is another area where policy
+changes should originate in Congress.
+ Finally, recent board decisions include New York University
+where a two-member plurality reinstated a representation
+petition covering college graduate assistance, again, laying a
+foundation for changing existing law and expanding the Act's
+coverage.
+ I will close by quoting a statement of the Supreme Court
+made more than 50 years ago which remains relevant today. It is
+suggested here that the time has come for a re-evaluation of
+the basic content of collective bargaining as contemplated by
+the Federal legislation. But that is for Congress. Congress has
+demonstrated its capacity to adjust the Nation's labor
+legislation to what in its legislative judgment constitutes the
+statutory pattern appropriate to the developing state of labor
+relations in this country. We do not see how the Board can do
+so on its own.
+ This concludes my prepared testimony. I look forward to any
+questions members of the subcommittee may have and thank you.
+ Chairman Roe. Thank you.
+ [The statement of Mr. Miscimarra follows:]
+
+Prepared Statement of Philip A. Miscimarra, Senior Fellow, the Wharton
+School, University of Pennsylvania; Partner, Morgan Lewis & Bockius LLP
+
+ Chairman Roe, Ranking Member Andrews, and Subcommittee Members,
+thank you for your invitation to participate in this hearing. I am
+honored to appear before you today.
+ By way of introduction, I am a Senior Fellow at the University of
+Pennsylvania's Wharton School and for more than 30 years I have been
+associated with the Wharton Center for Human Resources (previously
+known as the Wharton Industrial Research Unit). The majority of my
+academic work has dealt with the National Labor Relations Act and the
+National Labor Relations Board. I am also a Partner in the law firm of
+Morgan Lewis & Bockius LLP, and I have been a labor lawyer in private
+practice representing management since 1982.\1\
+Summary--Labor Policy and Running the Race
+ The National Labor Relations Act (NLRA or Act) \2\ was adopted when
+there was a national economy, and the Act still centers around a
+bargaining model where each side's leverage largely stems from economic
+damage it may inflict on the other party.\3\
+ In a global economy, this places unions and companies in a relay
+race, and all too often in the United States, the union's incentive is
+to use the baton to injure or maim the employer, instead of running the
+race against international competitors. Companies and employees suffer
+greatly from this type of conflict, especially small businesses.
+Expanding the Act's coverage and making the weapons more destructive--
+without direction to do so from Congress--runs counter to the NLRA's
+primary objective, which is to foster economic stability.
+Legislative Choices in the NLRA
+ Decision-making concerning the scope of our federal labor laws has
+long been the province of Congress. The NLRA,\4\ originally known as
+the Wagner Act, was adopted in 1935 after 18 months of work by the
+House and Senate. Important NLRA amendments were adopted in 1947 as
+part of the Labor Management Relations Act (the Taft-Hartley Act).\5\
+The Act was also substantially amended in 1959 as part of the Labor
+Management Reporting and Disclosure Act (the Landrum-Griffin Act).\6\
+And in 1974 the Act was amended based on the Health Care Amendments to
+the National Labor Relations Act.\7\
+ Perhaps to state the obvious (especially for this Subcommittee's
+Members), substantial debate, deliberation and controversy preceded
+every instance when the Act and proposed amendments were adopted by
+Congress, and also when they were not.\8\
+ The NLRA incorporates many policy decisions made by Congress. I
+will mention four in particular.
+ 1. Balancing of Interests. First, the Act reflects fundamental
+choices by Congress in the balancing of interests between employers,
+unions, employees, and the public.\9\ By comparison, the Supreme Court
+has stated the National Labor Relations Board (NLRB or Board) is not
+vested with ``general authority to define national labor policy by
+balancing the competing interests of labor and management.'' \10\
+ 2. Impact on the Economy. Second, the Act has always been closely
+associated with national economic policy. The Act was created during
+the Great Depression, and it was adopted to permit collective
+bargaining for the overriding purpose of eliminating burdens and
+obstructions on commerce.\11\
+ 3. Stability. Third, a ``basic policy of the Act [is] to achieve
+stability of labor relations.'' \12\ Concerning Section 8(a)(3), the
+Supreme Court has stated: ``To achieve stability of labor relations was
+the primary objective of Congress in enacting the National Labor
+Relations Act. * * * It is not necessary for us to justify the policy
+of Congress. It is enough that we find it in the statute.'' \13\
+Concerning Section 8(a)(5), the Supreme Court has held management
+``must have some degree of certainty beforehand * * * without fear of
+later evaluations labeling its conduct an unfair labor practice.'' \14\
+ The quest for labor relations stability is complicated by changes
+in direction coinciding with differences in the Board's composition.
+Arguments for stability and change at the NLRB are not new.\15\
+However, reducing abrupt changes in position should be a non-partisan
+objective--employers, unions and employees alike are disadvantaged by a
+proliferation of policy reversals at the Board.\16\
+ 4. Protection of Neutrals. Fourth, another important policy
+decision by Congress involves the Act's ``secondary boycott''
+provisions which protect ``neutral'' parties from labor disputes.\17\
+``Neutral'' here means employers, employees, consumers and others who
+have no dispute with a union except they deal with a different company
+that is the target of union organizing, a union corporate campaign, or
+strike.\18\ In 1947 and again in 1959, Congress made major changes in
+the Act to protect ``neutral'' parties from union strikes, refusals to
+handle, threats, coercion and restraint directed against them merely
+because they deal with someone else with whom the union has a
+dispute.\19\
+ The Act's secondary boycott provisions have become more important
+because of our economy's dependence on more numerous, complex
+relationships between manufacturers, service providers, suppliers,
+vendors and contractors.\20\ It is no secret that unions have also
+dramatically increased their reliance on third party pressure to
+promote top-down union organizing, neutrality agreements and corporate
+campaigns.\21\
+Outer Limits on the NLRB's Authority
+ The NLRB is charged with the ``difficult and delicate
+responsibility'' of administering the Act.\22\ I have dealt with the
+Board for nearly 30 years. I respect the Members of the Board, its
+Acting General Counsel, and others who work in the agency.\23\ The work
+of the NLRB is not easy, and it is often fraught with controversy.
+ At the same time, there are definite limits on the Board's
+authority. The Board is entitled to deference when it exercises its
+``informed judgment on matters within its special competence.'' \24\
+But the Supreme Court has held that, when courts review decisions of
+the Board, ``they are not to abdicate the conventional judicial
+function'' and ``Congress has imposed on them responsibility for
+assuring that the Board keeps within reasonable grounds.'' \25\
+ The Board's authority is most narrow when it comes to changing the
+NLRA's scope and altering the balance established by Congress as
+reflected in the Act's provisions. Again to quote the Supreme Court,
+federal labor policy does not permit the Board to create a ``standard
+of properly `balanced' bargaining power'' \26\ nor does it ``contain a
+charter for the [NLRB] to act at large in equalizing disparities of
+bargaining power between employer and union.'' \27\
+Selected Board Decisions--Changing the Balance
+ Recent Board decisions raise questions concerning the legislative
+policy choices built into the NLRA that I have just mentioned--i.e.,
+the balancing of interests (between employers, unions, employees and
+the public), the impact on the economy, labor relations stability, and
+the protection of neutrals. I will briefly discuss three lines of
+cases.
+ 1. Exposing Neutrals to Labor Disputes--Banners as Non-Picketing
+and Non-Coercion. First, in a series of ``banner'' decisions (including
+one handed down last week), the Board has concluded that, when multiple
+union supporters hold or stand beside 20-foot long banners directed at
+neutral companies, it is not coercion or picketing.\28\
+ To appreciate the importance of these cases, one must understand
+that legality of union activity against neutrals can depend almost
+completely on how it is characterized, because the Act prohibits some
+types of secondary activities and protects others. The Act makes it
+unlawful if a union takes action to ``threaten, coerce, or restrain'' a
+neutral employer (or induce a ``strike'' or ``refusal to handle'' by
+the neutral's employees). Picketing is a classic example--but not the
+only example--of potential coercion, threats and restraint against
+neutrals that the Act prohibits.\29\
+ By deciding that large banners do not constitute picketing (or
+threats, coercion or restraint), this effectively eliminates the Act's
+secondary boycott protection for neutrals if unions have people holding
+enormous stationary banners, even though it would violate the Act when
+the same number of people walk while carrying smaller signs within the
+same area.
+ Several additional points about the Board's recent banner decisions
+warrant particular attention:
+ Size of banners. These cases involve banners that are ``3
+or 4 feet high and from 15 to 20 feet long,'' requiring up to 5 people
+to hold them,\30\ and the banners identify the neutral company by name
+using words like ``Shame,'' ``Labor Dispute'' and ``Immigrant Labor
+Abuse,'' without indicating the union's dispute is actually with
+someone else.\31\
+ Banners are equally or more coercive than conventional
+pickets. In these cases, the people holding banners do not engage in
+back-and-forth walking. However, what the Act prohibits are secondary
+union actions which ``threaten, coerce, or restrain'' neutrals.\32\ It
+appears clear that a 4 foot high banner 20 feet long with large
+lettering being held by 3 or 4 stationary people is coercive to the
+same (or a greater) degree as 3 or 4 people holding smaller signs with
+smaller lettering who walk within the same area.\33\
+ Number of affected neutrals. A large number of neutral
+parties--including small businesses--may be affected by the majority
+reasoning in the banner cases. Just taking four of the Board's recent
+banner cases, the union activity affected at least two dozen neutral
+companies, in addition to their own employees, customers, vendors and
+the public.\34\
+ Dissenting opinions. In these banner cases, there are
+dissenting opinions by former Member Schaumber and/or current Member
+Hayes.\35\ I refer the Subcommittee to those opinions for a more
+detailed discussion of relevant issues.
+ 2. Expanding ``Pre-Hire'' Bargaining. In another decision, Dana
+Corp. (UAW),\36\ a two-member plurality of the Board--with Member
+Hayes, dissenting \37\--upheld the legality of a written agreement
+between Dana Corporation and the United Auto Workers (UAW) which laid
+out employment terms for unrepresented employees at nonunion Dana
+facilities, where most of the terms would take effect after the union
+received future card-check recognition. The Dana agreement provided for
+union access to the nonunion facilities, company neutrality, and
+recognition after the union attained a card-check majority.\38\ The
+agreement's other commitments set parameters around premium sharing,
+deductibles, out-of-pocket maximums, and dispute resolution
+(specifically, after the union was recognized, an arbitrator would
+decide what would be in the parties' next contract if the company and
+union failed to agree on that contract by themselves).\39\
+ Arguments can be made for and against these types of
+arrangements.\40\ However, Congress considered the legality of non-
+majority and pre-hire agreements in Section 8(f) of the Act, which
+permits these types of non-majority agreements, but only in the
+construction industry.\41\ For this reason, and because the Act places
+such importance on the right of employees to decide whether or not to
+participate in collective bargaining,\42\ this is another area where
+policy changes should originate in Congress.
+ 3. Other Board Cases. Finally, recent Board decisions include New
+York University,\43\ where a two-member plurality reinstated a
+representation petition covering college graduate assistants. The Board
+plurality--with Member Hayes in dissent \44\--overturned the Regional
+Director's dismissal of the union petition. Again, this lays the
+foundation for changing existing law and expanding the Act's
+coverage.\45\
+ There are other important Board decisions and developments in
+addition to those I have mentioned.\46\ I have limited my comments to
+the authority of the NLRB, but I note that the Board's Acting General
+Counsel in recent months has also announced a variety of new
+enforcement initiatives.\47\
+Conclusion
+ I will close by quoting a statement made by the Supreme Court more
+than 50 years ago, which remains relevant today:
+ It is suggested here that the time has come for a reevaluation of
+the basic content of collective bargaining as contemplated by the
+federal legislation. But that is for Congress. Congress has
+demonstrated its capacity to adjust the Nation's labor legislation to
+what, in its legislative judgment, constitutes the statutory pattern
+appropriate to the developing state of labor relations in the country.
+* * * [W]e do not see how the Board can do so on its own.\48\
+ This concludes my prepared testimony. I have provided an extended
+version of my remarks for the record. I look forward to any questions
+Members of the Subcommittee may have. Thank you for the invitation to
+appear today, and for the Subcommittee's attention to our national
+labor and employment policy.
+ endnotes
+ \1\ My testimony today reflects my own views which should not be
+attributed to The Wharton School, the University of Pennsylvania, or
+Morgan Lewis & Bockius. I am grateful to Ross H. Friedman and Rita
+Srivastava for assistance.
+ \2\ 49 Stat. 449 (1935), 29 U.S.C. Sec. Sec. 151 et seq.
+ \3\ See NLRB v. Insur. Agents' Int'l Union, 361 U.S. 477, 489
+(1960), where the Supreme Court referred to the bargaining contemplated
+by the Act, and observed that the parties ``proceed from contrary and
+to an extent antagonistic viewpoints and concepts of self-interest. * *
+* The presence of economic weapons in reserve, and their actual
+exercise on occasion by the parties, is part and parcel of the system
+that the Wagner and Taft-Hartley Acts have recognized.''
+ \4\ 49 Stat. 449 (1935), 29 U.S.C. Sec. Sec. 151 et seq.
+ \5\ 61 Stat. 136 (1947), 29 U.S.C. Sec. Sec. 141 et seq.
+ \6\ 73 Stat. 541 (1959), 29 U.S.C. Sec. Sec. 401 et seq.
+ \7\ 88 Stat. 395 (1974).
+ \8\ For example, the Employee Free Choice Act (EFCA) introduced
+during the 111th Congress would have substantially changed the NLRA's
+treatment of representation elections, the bargaining of initial
+contracts, and damages available under the Act, but was not adopted.
+See S. 560, 111th Cong., 1st Sess. (2009); H.R. 1409, 111th Cong., 1st
+Sess. (2009). The failure to adopt proposed amendments is sometimes
+regarded as validating prior interpretations of the Act. See NLRB v.
+Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974)
+(``congressional failure to revise or repeal the agency's
+interpretation is persuasive evidence that the interpretation is the
+one intended by Congress'').
+ \9\ The Act's central provision dealing with protected rights is
+Section 7, 29 U.S.C. Sec. 157, which protects the right of employees
+``to bargain collectively through representatives of their own choosing
+* * * and to refrain from any or all of such activities,'' except as
+affected by union security agreements in states that do not prohibit
+such agreements. Cf. NLRA Sec. 14(b), 29 U.S.C. Sec. 164(b)
+(permitting state right-to-work laws prohibiting union security
+agreements).
+ \10\ American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965).
+The Supreme Court has held that, concerning ``a judgment as to the
+proper balance to be struck between conflicting interests, `the
+deference owed to an expert tribunal cannot be allowed to slip into a
+judicial inertia which results in the unauthorized assumption by an
+agency of major policy decisions properly made by Congress.''' NLRB v.
+Brown, 380 U.S. 278, 291-92 (1965) (``Reviewing courts are not obliged
+to stand aside and rubber-stamp their affirmance of administrative
+decisions that they deem inconsistent with a statutory mandate or that
+frustrate the congressional policy underlying a statute'').
+ \11\ NLRA Sec. 1, 29 U.S.C. Sec. 151 (establishing policy ``to
+eliminate the causes of certain substantial obstructions to the free
+flow of commerce and to mitigate and eliminate those obstructions'').
+See also First Nat'l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981),
+citing NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 42 (1937) (``A
+fundamental aim of the National Labor Relations Act is the
+establishment and maintenance of industrial peace to preserve the flow
+of interstate commerce''); Fibreboard Paper Prod. Corp. v. NLRB, 379
+U.S. 203, 211 (1964) (``One of the primary purposes of the Act is to
+promote the peaceful settlement of industrial disputes by subjecting
+labor-management controversies to the mediatory influence of
+negotiation''); Local 24, Int'l Bhd. of Teamsters v. Oliver, 358 U.S.
+283, 295 (1959) (``The goal of federal labor policy, as expressed in
+the Wagner and Taft-Hartley Acts, is the promotion of collective
+bargaining * * * and thereby to minimize industrial strife'').
+ In many contexts, protected NLRA rights also give way if they cause
+substantial economic harm or implicate fundamental business
+considerations. See Fibreboard, supra note 11, 379 U.S. at 223 (Justice
+Stewart, concurring) (bargaining is not mandatory over decisions
+``fundamental to the basic direction of a corporate enterprise,'' which
+``lie at the core of entrepreneurial control'' or which concern ``the
+commitment of investment capital''); First Nat'l Maint., supra note 11,
+452 U.S. at 674, 676-78 (``Congress had no expectation that the elected
+union representative would become an equal partner in the running of
+the business enterprise in which the union's members are employed. * *
+* Management must be free from the constraints of the bargaining
+process to the extent essential for the running of a profitable
+business''); NLRB v. Retail Store Employees Union (Safeco Title Insur.
+Co.), 447 U.S. 607 (1980) (consumer-directed struck product picketing,
+generally permitted under NLRA Sec. 8(b)(4)(B), is unlawful if it
+``reasonably can be expected to threaten neutral parties with ruin or
+substantial loss''); Lear Siegler, Inc., 295 NLRB 857, 861 (1989)
+(NLRB's status quo ante remedy not required where the outcome would be
+``unduly burdensome''); NLRB v. Bildisco & Bildisco, 465 U.S. 513
+(1984) (rejection of collective bargaining agreements in bankruptcy);
+NLRB v. Burns Sec. Serv., 406 U.S. 272, 287-88 (1972) (legal successors
+not required to adopt the predecessor's labor contract because ``[a]
+potential employer may be willing to take over a moribund business only
+if he can make changes in corporate structure, composition of the labor
+force, work location, task assignment, and nature of supervision'').
+ \12\ NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir. 1961).
+ \13\ Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362-63
+(1949).
+ \14\ First Nat'l Maint., supra note 11, 452 U.S. at 678-79.
+ \15\ Not much has changed since Professor Summers made the
+following observation about the NLRB more than 50 years ago: ``The
+labor lawyer's world is not a secure one, for [the lawyer] walks on a
+thin crust of precedents. The body of Board decisions in many areas
+often gives an appearance of firmness only to have tremors beneath the
+surface open unexpected fissures or raise new ranges of decisions. In
+our primitiveness we may see these faults and upheavals in the crust of
+precedents as acts of God or Satan, crediting angels or devils
+incarnate in the bodies of Board members. With the appointment of new
+members the warning rumblings become more noticeable, and we spur our
+efforts to seek out the spirits and identify them as good or evil.'' C.
+Summers, Politics, Policy Making, and the NLRB, 6 Syracuse L. Rev. 93
+(1955). No side has a monopoly on pleas for more stability and fewer
+changes at the Board. Such appeals have also been made at times when
+union proponents complain of changes by a Republican majority. See,
+e.g., L. Bierman, Reflections on the Problem of Labor Board
+Instability, 62 Denv. U. L. Rev. 551 (1985); Cooke & Gautschi,
+Political Bias in NLRB Unfair Labor Practice Decisions, 35 Indus. &
+Lab. Rel. Rev. 539 (1982); Dunau, The Role of Criticism in the Work of
+the National Labor Relations Board, 16 N.Y.U. Conf. Lab. 205 (1963).
+Cf. Hickey, Stare Decisis and the NLRB, 17 Lab. L.J. 451 (1966).
+ \16\ The courts have especially been critical of NLRB changes in
+position that operate to the detriment of parties while litigation is
+pending. See, e.g., Ryan Heating Co., Inc. v. NLRB, 942 F.2d 1287, 1289
+(8th Cir. 1991) (retroactive application of changed interpretation
+would be ``manifestly unjust'' and ``essential demands of fairness''
+require that parties not be ``subject to entrapment'' merely because
+``the Board later departs from its earlier position'') (citation
+omitted); Epilepsy Foundation of Northeast Ohio, 268 F.3d 1095, 1099
+(D.C. Cir. 2001), cert. denied, 536 U.S. 904 (2002) (``It is a fact of
+life in NLRB lore that certain substantive provisions of the NLRA
+invariably fluctuate with the changing compositions of the Board'';
+court denies retroactive enforcement of Board's changed interpretation
+because ``[e]mployees and employers alike must be able to rely on clear
+statements of the law by the NLRB'').
+ \17\ A secondary boycott has been described as an effort ``to
+influence A by exerting some sort of economic or social pressure
+against persons who deal with A.'' F. Frankfurter and N. Greene, THE
+LABOR INJUNCTION 43 (1930). The Act's principal secondary boycott
+provisions include Sec. Sec. 8(b)(4)(B) and 8(e), 29 U.S.C. Sec. Sec.
+158(b)(4)(b). Section 8(b)(4)(A), 29 U.S.C. Sec. 158(b)(4)(A) makes it
+an unfair labor practice, in part, for a union to conduct a strike or
+use threats, coercion or restraint with the object of forcing an
+employer to enter into agreement prohibited by Sec. 8(e). The term
+``boycott'' can be misleading when discussing the Act's secondary
+boycott provisions. The Act prohibits certain types of secondary union
+activity directed at neutrals (e.g., picketing), but permits other
+secondary activity (e.g., publicity other than picketing), even though
+both situations may involve advocating a boycott of the neutral. For
+this reason, as mentioned later, how the NLRB chooses to characterize
+particular types of union activity can dictate whether it is lawful or
+unlawful. See text accompanying notes 28-35, infra.
+ \18\ The courts have indicated: ``The gravamen of a secondary
+boycott * * * is that its sanctions bear, not upon the employer who
+alone is a party to the dispute, but upon some third party who has no
+concern in it. Its aim is to compel him to stop business with the
+employer in the hope that this will induce the employer to give in to
+his employees' demands.'' Bhd. of R.R. Trainmen v. Jacksonville
+Terminal Co., 394 U.S. 369, 388 (1969) (citing IBEW Local 501 v. NLRB,
+181 F.2d 34, 37 (1950), and Nat'l Woodwork Mfr. Ass'n v. NLRB, 386 U.S.
+612, 623 (1967)).
+ \19\ In 1947, as part of the Taft-Hartley Act, Congress added NLRA
+Sec. 8(b)(4), 29 U.S.C. Sec. Sec. 158(b)(4). The Supreme Court in
+NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 692
+(1951), described this addition as reflecting ``dual congressional
+objectives of preserving the right of labor organizations to bring
+pressure to bear on offending employers in primary labor disputes and
+of shielding unoffending employers and others from pressure in
+controversies not their own.'' In 1959, as part of the Landrum-Griffin
+Act, Congress made important changes in Sec. 8(b)(4) and added NLRA
+Sec. 8(e), 29 U.S.C. Sec. 158(e).
+ \20\ As I have written, ``Numerically, the percentage of American
+employees represented by unions has steadily decreased, which might
+suggest unions would have less success in efforts to enmesh `neutrals'
+in their primary disputes. However, declining union membership has also
+prompted unions to exert more pressure on third parties in an effort to
+increase unionization among nonunion employers.'' P. Miscimarra, A.
+Berkowitz, M. Wiener & J. Ditelberg, THE NLRB AND SECONDARY BOYCOTTS at
+16 (3d ed. 2002). The Bureau of Labor Statistics indicates that, in
+2010, the union membership rate was 11.9 percent counting all
+employers, and 6.9 percent counting private sector employers. See U.S.
+Dep't of Labor Bureau of Labor Statistics,, Economic News Release,
+Union Members Summary (2011), http://www.bls.gov/news.release/
+union2.nr0.htm. Concerning the increased reliance by unions on
+secondary pressure, see note 21, infra.
+ \21\ The AFL-CIO's Industrial Union Department has indicated a
+``coordinated corporate campaign applies pressure to many points of
+vulnerability to convince the company to deal fairly and equitably with
+the union,'' ``[i]t means seeking vulnerabilities in all of the
+company's political and economic relationships--with other unions,
+shareholders, customers, creditors, and government agencies--to achieve
+union goals,'' and ``the union is looking for ways in which it can use
+its resources to expand the dispute from the workplace to other arenas.
+* * *'' Ind. Union Dept., AFL-CIO, DEVELOPING NEW TACTICS: WINNING WITH
+COORDINATED CORPORATE CAMPAIGNS at 1-3 (1985). To the same effect, see
+C. Estlund, The Ossification Of American Labor Law, 102 Columbia L.
+Rev. 1527 (2002), which refers to ``alternative forms of economic
+pressure'' and states: ``These tactics target not only the `primary'
+employer, who may often be relatively insulated from public pressure,
+but others who have ties to and leverage over the primary employer. The
+`corporate campaign,' for example, seeks concessions from employers by
+targeting directors, customers, suppliers, lenders, and investors with
+publicity and other forms of pressure.'' ``This aspect of the new
+strategies is potentially in conflict with the secondary boycott
+provisions of the NLRA.'' Id. at 1605 & n.326.
+ \22\ NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 499 (1960),
+quoting NLRB v. Truck Drivers Local 449, 353 U.S. 87, 96 (1957). In
+NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963), the Court stated
+``we must recognize the Board's special function of applying the
+general provisions of the Act to the complexities of industrial life''
+(citation omitted). See also NLRB v. Action Automotive, Inc., 469 U.S.
+490, 496-97 (1985); Ford Motor Co. v. NLRB, 441 U.S. 488, 495 (1978);
+Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Phelps Dodge
+Corp. v. NLRB, 313 U.S. 177, 194 (1941).
+ \23\ I have written that the NLRB and the courts have an unenviable
+responsibility under the Act, which becomes even more daunting when
+variations in the law result from periodic changes in the Board's
+composition. Philip A. Miscimarra et al., THE NLRB AND MANAGERIAL
+DISCRETION: SUBCONTRACTING, RELOCATIONS, CLOSINGS, SALES, LAYOFFS, AND
+TECHNOLOGICAL CHANGE at 569 (2d ed. 2010).
+ \24\ Universal Camera, supra note 22, 340 U.S. at 490. The Board's
+factual findings are to be upheld if supported by ``substantial
+evidence on the record considered as a whole.'' NLRA Sec. 10(f), 29
+U.S.C. Sec. 160(f); Universal Camera, supra note 22, 340 U.S. at 478-
+79, 488. See also NLRA Sec. 10(e), 29 U.S.C. Sec. Sec. 160(e). Like
+other agencies, the Board is permitted to change its mind and overrule
+prior determinations although such changes of position must be
+explained and reflect a reasonably defensible interpretation of the
+Act. See, e.g., NLRB v. Int'l Ass'n of Bridge, Structural & Ornamental
+Iron Workers, 434 U.S. 335, 351 (1978).
+ \25\ Universal Camera, supra note 22, 340 U.S. at 490. See also
+American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965) (court denies
+enforcement to NLRB determination where the Board's view was
+``fundamentally inconsistent with the structure of the Act and the
+function of the sections relied upon''); NLRB v. Sheet Metal Workers'
+Int'l Ass'n, Local Union No. 19, 154 F.3d 137, 141 (3d Cir. 1998)
+(Board decision afforded ``limited deference'' concerning common law
+agency principles as to which the NLRB ``has no special expertise'' and
+concerning Sec. 2(13) of the Act, 29 U.S.C. Sec. 152(13), where
+``Congress did not delegate to the Board the power to interpret that
+section'') (citations omitted); NLRB v. Fin. Inst. Employees, 475 U.S.
+192, 202 (1986) (``Deference to the Board `cannot be allowed to slip
+into a judicial inertia which results in the unauthorized assumption *
+* * of major policy decisions properly made by Congress' '') (citation
+omitted). Prior to enactment of the Taft-Hartley Act amendments,
+greater deference was afforded to NLRB decisions by the courts, which
+generated significant controversy and prompted Congress to modify the
+Act's treatment of court review. See Universal Camera, supra note 22,
+340 U.S. at 478-79.
+ \26\ NLRB v. Ins. Agents' Int'l Union, 361 U.S. 477, 497 (1960).
+ \27\ Id. at 490.
+ \28\ See Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.),
+355 NLRB No. 159 (Aug. 27, 2010); Carpenters Local 1506 (Marriott
+Warner Center Woodland Hills), 355 NLRB No. 219 (Sept. 30, 2010);
+Southwest Regional Council of Carpenters (Richie's Installations,
+Inc.), 355 NLRB No. 227 (Oct. 7, 2010); Southwest Regional Council of
+Carpenters (New Star Gen. Contr. Inc.), 356 NLRB No. 88 (Feb. 3, 2011).
+Each of these cases were decided by a majority or plurality of Board
+members, with dissenting opinions by Members Schaumber and/or Hayes.
+See note 35, infra.
+ \29\ Union conduct has been deemed unlawful secondary coercion even
+in the absence of conventional picketing. See, e.g., UFCW Local 1776
+(Carpenters Health & Welfare Fund), 327 NLRB 593 (1999), citing Iron
+Workers Local 433 v. NLRB, 598 F.2d 1154, 1158 n.6 (9th Cir. 1979)
+(union representative stationed at neutral gate wearing ``observer''
+sign held to constitute coercion in the form of ``signal picketing,''
+defined as ``activity short of a true picket line that acts as a signal
+to neutrals that sympathetic action on their part is desired by the
+union''). As explained in the dissenting opinion by Members Schaumber
+and Hayes in Eliason & Knuth, supra note 28, ``The prohibition against
+coercive secondary activity sweeps more broadly and has been held to
+encompass patrolling without signs, placing picket signs in a snowbank
+and then watching them from a parked car, visibly posting union agents
+near signs affixed to poles and trees in front of an employer's
+premises, posting banners on a fence or stake in the back of a truck
+with union agents standing nearby and * * * simply posting agents
+without signs at the entrance to a neutral's facility.'' 355 NLRB No.
+159, slip op. at 19 (footnotes omitted) (Members Schaumber and Hayes,
+dissenting), citing Service Employees Local 399 (Burns Detective
+Agency), 136 NLRB 431, 436--437 (1962); NLRB v. Teamsters Local 182
+(Woodward Motors), 314 F.2d 53 (2d Cir. 1963), enforcing 135 NLRB 851
+(1962); NLRB v. United Furniture Workers, 337 F.2d 936, 940 (2d. Cir.
+1964); Mine Workers Local 1329 (Alpine Construction), 276 NLRB 415, 431
+(1985), remanded on other grounds, 812 F.2d 741 (D.C. Cir. 1987); Mine
+Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 686 (2001). Cf.
+Lawrence Typographical Union No. 570 (Kansas Color Press), 169 NLRB
+279, 283 (1968), enforced, 402 F.2d 452 (10th Cir. 1968) (``the Board
+and the courts have held that patrolling, in the common parlance of
+movement, and the carrying of placards, are not a sine qua non of
+picketing'') (citations omitted).
+ \30\ Eliason & Knuth, supra note 28, slip op. at 2-3, 26-27 (3 or 4
+people holding banners). In some instances, the banners were 4 feet by
+18 feet long, framed on the top and sides, with base legs which allowed
+them to stand by themselves, accompanied by multiple union members or
+employees. See, e.g., Marriott Warner, supra note 28, slip op. at 4
+(ALJ opinion). Up to 5 people were holding or standing by the banners
+in New Star Gen. Contractors Inc., supra note 28, slip op. at 12-13
+(ALJ opinion). See also Richie's Installations, Inc., supra note 28,
+slip op. at 3-5 (ALJ opinion).
+ \31\ Eliason & Knuth, supra note 28, slip op. at 2-3; Marriott
+Warner, supra note 28, slip op. at 4 (ALJ opinion); Richie's
+Installations, Inc., supra note 28, slip op. at 3-5 (ALJ opinion); New
+Star Gen. Contractors Inc., supra note 28, slip op. at 12-13 (ALJ
+opinion).
+ In 1959, while strengthening the Act's secondary boycott
+prohibitions, Congress added a ``publicity proviso'' to Section 8(b)(4)
+which protects ``publicity, other than picketing'' for the purpose of
+truthfully advising the public of a union's primary dispute. 29 U.S.C.
+Sec. 158(b)(4). The Supreme Court has explained this permits conduct
+which, if restricted, could run afoul of the free speech guarantees
+afforded by the First Amendment. Edward J. DeBartolo Corp. v. Florida
+Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988). Cases
+addressing the ``publicity, other than picketing'' language, however,
+have most often interpreted the phrase as relating primarily to the
+distribution of leaflets. See, e.g., DeBartolo, 485 U.S. at 570-71,
+578. When evaluating free speech issues, the Supreme Court has
+distinguished leafleting from picketing, with picketing being defined
+as ``a mixture of conduct and communication,'' where the conduct
+element ``often provides the most persuasive deterrent to third persons
+about the enter a business establishment.'' DeBartolo, 485 U.S. at 580,
+quoting Safeco, supra note 11, 447 U.S. at 619 (Justice Stevens,
+concurring); and citing Babbitt v. Farm Workers, 442 U.S. 289, 311 n.17
+(1979); Hughes v. Superior Court, 339 U.S. 460, 465 (1950). The Board
+majority in Eliason & Knuth relied, in part, on the Ninth Circuit
+decision in Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th
+Cir. 2005), where the court declined to issue an injunction against
+banners and leafleting under NLRA Sec. 10(l), 29 U.S.C. Sec. 160(l),
+based on ``First Amendment concerns'' (id. at 1219), although the court
+indicated that the Board was not entitled to deference as to any First
+Amendment issue because ``constitutional decisions are not the province
+of the NLRB. * * *'' Id.
+ \32\ Union conduct has constituted unlawful coercion under Sec.
+8(b)(4)(B) in the absence of patrolling and/or conventional picketing.
+See note 29, supra.
+ \33\ As indicated in note 30, supra, up to 5 union supporters were
+holding or standing by the banners in New Star Gen. Contr. Inc., supra
+note 28, slip op. at 12-13 (ALJ opinion). Conventional secondary
+picketing has been declared unlawful under Sec. 8(b)(4)(B) based on
+picketing by as few as one person. See, e.g., IBEW v. NLRB, 341 U.S.
+694, 696-67 (1951) (1 picket). See also Iron Workers Local 433 (Aram
+Kazazian Constr., Inc.), 293 NLRB 621 (1989) (2 pickets); Laborers'
+Eastern Region Organizing Fund (Ranches at Mt. Sinai), 346 NLRB
+1251,1253 (2006) (``no minimum number of persons is necessary to create
+a picket line''). Cf. United Bhd. of Carpenters (Wadsworth Bldg. Co.),
+81 NLRB 802, 812 (1949), enforced, 184 F.2d 60 (10th Cir. 1950), cert.
+denied, 341 U.S. 947 (1951): ``It was the objective of the unions'
+secondary activities, as legislative history shows, and not the quality
+of the means employed to accomplish that objective, which was the
+dominant factor motivating Congress'' (emphasis in original).
+ \34\ Eliason & Knuth, supra note 28, slip op. at 26-27; Marriott
+Warner, supra note 28, slip op. at 3-10 (ALJ opinion); Richie's
+Installations, Inc., supra note 28, slip op. at 2-5 (ALJ opinion); New
+Star Gen. Contr. Inc., supra note 28, slip op. at 11-12, 15-23 (ALJ
+opinion). The affected neutrals included medical centers and hospitals,
+restaurants, a hotel, car dealership, spa, consulting company,
+newspaper publisher, mortgage lender, retail furniture store, medical
+device manufacturer, property management company, public transit
+authority, real estate developers, agents and brokers, a credit union,
+a pharmaceutical company, two universities, and a public courthouse.
+Id.
+ \35\ See Eliason & Knuth, supra note 28, slip op. at 15 (Members
+Schaumber and Hayes, dissenting); Marriott Warner, supra note 28, slip
+op. at 2 (Member Hayes, dissenting); Richie's Installations, Inc.,
+supra note 28, slip op. at 2 (Member Hayes, dissenting); New Star Gen.
+Contr. Inc., supra note 28, slip op. at 7 (Member Hayes, dissenting).
+ \36\ 356 NLRB No. 49 (Dec. 6, 2010).
+ \37\ Id., slip op. at 10 (Member Hayes, dissenting).
+ \38\ Id. at 2.
+ \39\ Id. The Board's Dana/UAW decision departs from case law that
+had been in effect for more than 40 years. Majestic Weaving Co., 147
+NLRB 859 (1964), enforcement denied, 355 F.2d 854 (2d Cir. 1966). Cf.
+ILGWU v. NLRB (Bernhard-Altmann), 366 U.S. 731 (1961).
+ \40\ In sale situations, for example, there may be a desire to have
+greater certainty because the law regarding successorship has become so
+difficult to understand. See, e.g., Howard Johnson Co. v. Detroit Local
+Joint Executive Board, 417 U.S. 249, 263 n.9 (1974) (Supreme Court,
+after issuing several successorship decisions, states the term
+``successorship'' is ``simply not meaningful in the abstract'' and a
+new employer ``may be a successor for some purposes and not for
+others''). I have written that such complexity, by itself, undermines
+the stability that Congress hoped to foster when adopting the Act.
+Herbert R. Northrup & Philip A. Miscimarra, GOVERNMENT PROTECTION OF
+EMPLOYEES INVOLVED IN MERGERS AND ACQUISITIONS at 346 (1989) (Congress
+``could hardly have envisioned the massive array of complex legal
+principles that are now imbued in the term `successorship' '').
+ \41\ NLRA Sec. 8(f), 29 U.S.C. Sec. 158(f) (permitting pre-hire
+agreements only where the employer is ``engaged primarily in the
+building and construction industry''). Experience under Sec. 8(f) has
+shown that other issues can require attention when negotiations and
+agreements sett employment terms for employees where there is no
+employee majority favoring union representation. See, e.g., John
+Deklewa & Sons, 282 NLRB 1375 (1987), enforced sub nom. Int'l Ass'n of
+Bridge, Structural & Ornamental Workers Local 3 v. NLRB, 843 F.2d 770
+(3d Cir. 1988), cert. denied, 488 U.S. 889 (1988); Laborers Local 1184
+(NVE Constructors), 296 NLRB 1325 (1989).
+ \42\ NLRA Sec. 9(a), 29 U.S.C. Sec. 159(a).
+ \43\ 356 NLRB No. 7 (Oct. 25, 2010).
+ \44\ Id., slip op. at 2 (Member Hayes, dissenting).
+ \45\ The Regional Director's dismissal of the union petition was
+based on a prior Board decision, Brown University, 342 NLRB 483 (2004),
+which held graduate assistants providing teaching and research services
+are not employees under the Act. In its recent New York University
+ruling, the Board plurality stated there were ``compelling reasons''
+for reconsidering Brown University, but the plurality remanded the case
+so relevant issues could be addressed ``based on a full evidentiary
+record.'' Id., slip op. at 2.
+ \46\ The NLRB in an array of pending cases, each involving
+important issues, has issued public notices and invitations to file
+briefs, and the Board is also engaging in rulemaking as described
+below, raising the possibility that these may lead to further changes
+in position by the Board:
+ Rite Aid Store #6473, Case 31-RD-1578 (notice issued Aug.
+31, 2010), involving potential reconsideration of Dana Corp., 351 NLRB
+434 (2007) where Board held that voluntary recognition bars
+representation or decertification petition for a reasonable time only
+if written notice advises employees of their right to file or support
+such a petition within 45 days after posting of notice;
+ UGL-UNICCO Service Co., Case 1-RC-22447 (notice issued
+Aug. 31, 2010), involving potential reconsideration of MV
+Transportation, 337 NLRB 770 (2002) where Board held a successor
+employer's union recognition will not bar an otherwise valid petition
+or other challenge to the union's majority status, and possible return
+to contrary rule set forth in St. Elizabeth Manor, Inc., 329 NLRB 341
+(1999);
+ Roundy's Inc., Case 30-CA-17185 (notice issued Nov. 12,
+2010), involving denial of union access to private property, and
+potential reconsideration of Register-Guard, 351 NLRB 1110 (2007) where
+Board (in context of e-mail) permitted distinctions regarding access so
+long as the employer did not discriminate between union access and
+other activities of a similar character, and Sandusky Mall Co., 329
+NLRB 618 (1999), where Board held employers could not lawfully deny
+access to non-employee union supporters while permitting charitable
+solicitations on private property;
+ Specialty Healthcare and Rehabilitation Center of Mobile,
+Case 15-RC-8773 (notice issued Dec. 22, 2010), involving potential
+reconsideration of Park Manor Care Center, 305 NLRB 872 (1991), where
+Board held that bargaining units in non-acute healthcare facilities
+would be based on the ``pragmatic'' or ``empirical'' community-of-
+interests test and not the Board's rules regarding acute care
+bargaining units;
+ Proposed Rules Regarding Notice-Posting, 75 Fed. Reg.
+80410 (published Dec. 22, 2010), involving potential notice-posting
+requirement regarding employee rights under the NLRA and the potential
+distribution of such notices ``electronically'' if the employer
+``customarily communicates with its employees by such means.'' Id. at
+80413.
+ \47\ See, e.g., GC Mem. 10-07 (Sept. 30, 2010) (Sec. 10(j)
+injunctions in union organizing); GC Mem. 11-01 (Dec. 20, 2010)
+(hallmark violation remedies in union organizing); GC Mem. 11-04 (Jan.
+12, 2011) (default language in settlement agreements); GC Mem. 11-05
+(Jan. 20, 2011) (deferral to arbitration under Sec. Sec. 8(a)(1) and
+(3)); Am. Med. Response of Conn., Inc., Case 34-CA-12576 (complaint
+involving internet posting policies and Facebook comments; settlement
+announced Feb. 7, 2011).
+ \48\ NLRB v. Insur. Agents, supra note 26, 361 U.S. at 500
+(emphasis added; footnote omitted).
+ ______
+
+ Chairman Roe. Mr. Rosenfeld.
+
+STATEMENT OF ARTHUR ROSENFELD, FORMER NATIONAL LABOR RELATIONS
+ BOARD GENERAL COUNSEL
+
+ Mr. Rosenfeld. Chairman Roe and members of the
+subcommittee, I want to thank you for the opportunity to
+testify before the subcommittee regarding emerging trends at
+the National Labor Relations Board. I served as general counsel
+of the Labor Board from June of 2001 to January of 2006, and
+therefore, I will attempt to focus on arising issues within the
+general counsel's purview.
+ But I would like to take a few moments to discuss
+something. First, I would request that my written statement be
+made a part of the record.
+ I would like to take a few moments to discuss something
+that is an issue of concern. In January of 2011, acting general
+counsel Solomon sent letters to four States: Arizona, South
+Carolina, South Dakota and Utah. What the States had in common
+was that the voters, the respective voters in those States in
+the November elections had approved and the States had enacted
+secret ballot amendments providing, and the language from State
+to State varies a little, but providing that the designation or
+selection of union representatives only be done by secret
+ballot.
+ Board law, of course, acknowledges other means such as
+voluntary recognition, card check, voice votes, whatever.
+Acting general counsel Solomon's letter also indicated that he
+was authorized by the Board, if necessary, to initiate legal
+action, declaring that the State amendments violated the
+supremacy clause in article 6.
+ The States responded I understand on January 27. The
+attorneys general of the four States in a single letter
+responded, and there may be a softening of the general
+counsel's position on this at this point. I am not sure of
+that. But without opining on the merits of the issue itself, I
+have to applaud the Board's quick authorization, the quick
+action in the authorizing the acting general counsel in order
+to protect the Board's jurisdiction.
+ I raise the issue, however, and am concerned that the Board
+may not continue to be as vigilant when future State
+regulations threaten to encroach on the Board's jurisdiction.
+In this case it was clear, unfortunately, it had to do with
+secret ballot elections which is part and parcel of what the
+Employee Free Choice Act was directed at eliminating.
+ But I have had personal experience with these preemption
+issues. And in the summer of 2003, I urged the Board to
+authorize an amicus in a case in California pertaining to AB,
+assembly bill 1889, which basically prohibited employers from
+receiving State--excuse me, prohibiting employers who receive
+State funds from using those funds to assist, promote or deter
+union organizing. In other words, it forced neutrality
+provision.
+ I urged the Board to allow me to file this brief. It was
+not an easy sell, quite frankly. I finally was authorized by
+the Board to so do and in footnote 2 of the brief that we
+filed, it notes that the Board authorized my going forward by a
+3-2 vote. One of the two dissenters, of course, is current
+chairman Liebman.
+ In June of 2008, the United States Supreme Court in that
+particular case held that AB 1889 was preempted. I believe the
+vote was 7-2.
+ Again, I raise this issue only because I hope that when
+other State intrusions into what is Board's jurisdiction that
+don't necessarily parallel what was in the Employer Free Choice
+Act arise, that the Board will authorize the general counsel to
+go forward.
+ The only other thing I would state in regard to that issue
+is that, and again, I want to opine on whether I think the
+floor actions are preempted or not, I think that will be worked
+out ultimately, but there is probably a better way of skinning
+that particular cat, and that might be for Congress to enact
+the Secret Ballot Protection Act. And that would be an Act of
+Federal Congress.
+ With that, I will conclude my remarks by saying I welcome
+any questions, and I will try to answer them.
+ Chairman Roe. Thank you, Mr. Rosenfeld.
+ [The statement of Mr. Rosenfeld follows:]
+
+ Prepared Statement of Arthur F. Rosenfeld, Former National Labor
+ Relations Board General Counsel
+
+ Chairman Roe and members of the Subcommittee: Thank you for this
+opportunity to testify before the Subcommittee regarding ``Emerging
+Trends at the National Labor Relations Board.''
+ The National Labor Relations Board (NLRB) is an independent federal
+agency that administers the National Labor Relations Act (NLRA). The
+Board has two primary functions: to prevent and remedy unlawful acts,
+i.e., unfair labor practices by either employers or unions, and to
+determine, through secret-ballot elections, whether or not a unit of
+employees wish to be represented by a union in dealing with their
+employer and, if so, which union.
+ The NLRB has two major, separate components. The Board itself,
+consisting of up to five members, adjudicates unfair labor practice
+complaints on the basis of formal records in administrative proceedings
+and resolves election case issues. The second component is the Office
+of General Counsel. The General Counsel has independent prosecutorial
+authority and is responsible for the investigation and prosecution of
+unfair labor cases and for the general supervision of the NLRB's 32
+Regional Offices and satellite offices in the processing of both unfair
+labor practice and representation cases.
+ I served as General Counsel from June of 2001 to January of 2006.
+Therefore, this statement will attempt to focus on arising issues
+within the General Counsel's purview. There are, however, compared to
+Board side activities, fewer clear guideposts from which to derive
+General Counsel prognoses. First, Acting General Counsel Lafe E.
+Solomon only has headed the Office since late June of 2010. The Obama
+Board, conversely, has nearly two years of published decisions, plus
+nearly a decade of dissents by Member Liebman (now Chairman) from which
+to glean an anticipated decisional proclivity for the current Board.
+ Secondly, and most significant, the General Counsel's influence
+often is exercised subtly, e.g., through enhanced enforcement of a
+certain class of cases, or through instructions to the Regional
+Directors, or in the way a case is presented, or even in performance
+evaluations of General Counsel Office employees. President Truman
+vetoed the Taft-Hartley Act (subsequently overridden by Congress in
+1947), in part because of the concern that creation of an independent
+General Counsel, would result in creation of a labor czar. Prior to the
+vote to override the President's veto, Senator Taft answered criticism
+that the Act placed too much power in the hands of a single official,
+explaining:
+ In order to make an effective separation between the judicial and
+prosecuting functions of the Board and yet avoiding the cumbersome
+device of establishing a new independent agency in the executive branch
+of the Government, the conferees created the office of general counsel
+of the Board. * * * We invested in this office final authority to issue
+complaints (and) prosecute them before the Board. * * *
+ (H)e, of course, must respect the rules of decision of the Board
+and of the courts. In this respect his function is like that of the
+Attorney General of the United States or a State attorney general.
+ In practice, President Truman's concerns have proven unfounded. In
+large part, I believe, because of the integrity, as well as respect for
+the institution, of those who have served, and continue to serve, as
+General Counsel. And, of course, because of the extraordinary career
+staff in the Office of the General Counsel.
+ Consistent with its duties under the NLRA, the Office of the
+General Counsel should have no reluctance to present cases to the Board
+seeking reversal of current law when the Board signals some willingness
+to change its view or where a Supreme Court decision has called current
+Board law into question. The process, however, is not self-initiating.
+The General Counsel can issue a complaint only upon the filing of a
+charge alleging an impropriety.
+ In performing the duties of chief prosecutor and investigator under
+the NLRA, the General Counsel, through the Regional Office staffs,
+investigates, determines merit, and thereafter either dismisses the
+unfair labor practice charges or, absent settlement, commences formal
+adjudication by issuing administrative complaints. In making these
+merit determinations, the General Counsel is guided by the body of
+decisions and orders of the Board.
+ In fiscal year 2010, more than 23,000 unfair labor practice cases
+were filed in the Regional Offices. Of these, slightly more than 35.5%
+were found meritorious, with the reminder dismissed or withdrawn by the
+charging party. 95% of the merit cases were settled. A high settlement
+rate is important, not only in preserving agency resources, but because
+it allows the parties to get back to work by putting the conflict to
+rest. This result was a major goal of Congress when creating the NLRB.
+ With the foregoing in mind, let us examine some GC memoranda issued
+by Acting General Counsel Solomon. They may prove revealing in terms of
+what can be expected of the Office of General Counsel in the next few
+years.
+Memorandum GC 11-04
+ GC 11-04 was issued on January 12, 2011. It has the potential to
+adversely impact the aforementioned settlement rate. The issue
+addressed is inclusion of default provisions, and the language used in
+those provisions, in informal settlement agreements. Heretofore,
+Regions had utilized default language where there was a substantial
+likelihood that the charged party/respondent would be unwilling or
+unable to fulfill its settlement obligations. Regional Directors had
+discretion to use, and modify, default language based on case
+circumstances.
+ GC 11-04 now requires the Regions to ``* * * routinely include
+default language in all informal settlement agreement. * * *'' The
+concern, of course, is that charged parties may refuse to enter into
+informal settlements containing affirmative obligations. Clearly,
+default language may save agency resources in the event of a breach of
+a settlement agreement. However, these resource savings are lost, and
+other costs to the agency incurred, if charged parties/respondents
+avoid settlement. GC 11-04 cites experience of three regions (out of
+32) to imply that settlement percentages will not be affected by the
+new policy. There is concern that this will not prove to be correct,
+particularly when default language subjects charged parties to a
+remedial order for all complaint allegations, not only the affirmative
+obligations contained in the settlement agreement.
+GC 10-07
+ The Acting General Counsel here attempts to increase scrutiny
+afforded to unlawful discharges, referred to as nip-in the-bud
+violations, which occur during a union organizing campaign. The
+justification for this lies in the argument that other employees are
+chilled in the exercise of their section 7 rights because of fear that
+active participation in the campaign will result in similar punishment.
+Further, it is argued, that the discharge of union adherents deprives
+remaining employees of leadership of union supporters.
+ Countering these arguments, it should be noted that over 92% of the
+1790 initial representation elections conducted in fiscal year 2010
+were held pursuant to agreement of the parties, and over 95% of these
+elections were conducted within 56 days of the filing of the election
+petition. And, of course, these elections were conducted by secret
+ballot. Nonetheless, it cannot be gainsaid that unlawful discharges
+that occur during an organizing campaign should and must be remedied.
+The question that arises, and may be answered through review in the
+future of representation case statistics, is whether the remedial
+efforts can be justified.
+ GC 10-07 shortens in time frames for agency action in nip-in-the-
+bud cases. In addition, the use of 10(j) injunctive relief is to be
+considered in most cases, and the Acting General Counsel will
+personally review all pending organizing discharge cases found to have
+merit, to decide whether 10(j) authorization should be sought from the
+Board.
+ GC 10-07 notes that its required approach to nip-in-the-bud cases
+can drain resources in the field. Devoting scarce resources to a
+problem that may not be critical means that resources will be shifted
+from other issues, perhaps such as illegal secondary boycotts.
+GC 11-01
+ GC 11-01 builds on GC 10-07, by outlining non-traditional remedies
+to be sought by the Regions for employer violations occurring during
+organizing campaigns. The memorandum both sets forth these remedies,
+and provides a rationale to be used by the Regions when arguing that
+certain extraordinary remedies are necessary to ``* * * restore an
+atmosphere in which employees can freely exercise their Section 7
+rights.''
+ The remedies set forth in GC 11-01 include:
+ Public reading of Board notices, to the widest possible
+audience, by a responsible management official;
+ Access to bulletin boards;
+ Provide union with list of employee names and addresses,
+earlier than the current Excelsior list requirements;
+ Union access to employer property;
+ Access and time for union pre-election speeches.
+ GC 11-01 and GC 11-07 are directed only at employer misconduct.
+GC 11-05
+ For over a half century, the NLRB has, through deferral to final
+and binding arbitration awards, encouraged parties to resolve their
+disputes by voluntary methods agreed upon by the parties. This approach
+recognizes that the NLRA was designed by Congress to promote industrial
+peace and stability, and that a collective bargaining agreement that
+contains a final and binding grievance/arbitration provision
+contributes to this objective.
+ The Board's deferral policy has not always been a smooth road. Over
+the years, some commentators, and some courts, have expressed concerns
+regarding possible abdication of the NLRB's role in protecting
+statutory rights by deferring that role to an arbitrator. However, at
+least 1984, the parameters of post-arbitral deferral have been
+relatively clear, and accepted and understood by the parties. The
+process is referred to as Spielberg/Olin deferral.
+ In a nutshell, where disputes involve both contract and NLRA issues
+(e.g., did the termination of an employee violate the just cause
+provisions of the collective bargaining agreement, and also constitute
+an unfair labor practice), the Board has consistently deferred to an
+arbitration award if the process was fair and regular, all parties
+agreed to be bound by the determination, and the award was not
+repugnant to the purposes and policies of the NLRA. The arbitrator is
+considered to have adequately the alleged unfair labor practice where
+the contract issue was factually parallel to the unfair labor practice
+issue, and the arbitrator was presented with facts generally relevant
+to resolving the unfair labor practice. The burden of showing that
+these requisites were not met is placed on the party objecting to
+deferral.
+ GC 11-05 would turn this well-established practice on its head. The
+memorandum, in effect, urges the Board to revise its approach to
+deferral. Regional Directors are therein instructed to defer only where
+it is shown that the statutory right in question is incorporated in the
+collective bargaining agreement or that the statutory issue was
+presented to the arbitrator, and the ``arbitrator correctly enunciated
+the applicable statutory principles and applied them in deciding the
+issue.'' Further, the burden is now placed on the party seeking
+deferral.
+ The Acting General Counsel seeks to revise the ground rules in all
+deferral cases, including pre-arbitral deferral, where an employer is
+alleged to have violated a collective bargaining agreement provision,
+and to have committed an unfair labor practice. If adopted, I fear that
+there will be fewer deferrals, greater expenditure of agency resources,
+and diminution in achievement of the Congressional goal of promoting
+industrial peace and stability.
+ Thank you for the opportunity to address these issues before the
+Subcommittee. I would be happy to try and answer any questions you may
+have.
+ ______
+
+ Chairman Roe. Ms. Estlund.
+
+ STATEMENT OF CYNTHIA ESTLUND, PROFESSOR OF LAW,
+ NEW YORK UNIVERSITY SCHOOL OF LAW
+
+ Ms. Estlund. Good morning. I want to thank the committee
+for the opportunity to offer my perspective on recent
+developments at the NLRB.
+ Let me start off with my conclusion. In my view, the recent
+proposals and actions by the Board and the acting general
+counsel are fully consistent with the Board's statutory
+responsibilities and well within the boundaries of both the
+board's authority and traditional scope within which past
+boards have exercised that authority. So far from running amok,
+the Board and general counsel have taken or considered some
+modest steps to improve the efficiency, efficacy and
+transparency of the Board's administration of the statute.
+Nothing that the Board is doing or has proposed to do will work
+a major change in the labor relations landscape.
+ First, on rulemaking. The Board has traditionally announced
+changes in its interpretation of the Act in the course of
+deciding particular cases. And it unquestionably has the
+authority to do that.
+ On the other hand, courts and commentators across the
+political spectrum have often urged the Board to make better
+use of its well established rulemaking powers. Rulemaking is
+more time consuming, but it allows for a more thorough
+consideration of a range of views on recurring policy issues.
+ While the Board may or may not undertake additional
+rulemaking beyond the one rule proposed so far, its decision to
+do so should be welcomed. As to the one rule the Board has
+proposed so far, which would require employers to post a notice
+informing employees of their rights under the Act, I think that
+should be pretty uncontroversial, but I am happy to take
+questions on that if there are any.
+ Also on the procedural front, the Board has got some
+attention from soliciting amicus briefs from interested parties
+on several issues raised by pending cases. I don't think anyone
+actually thinks that is a bad idea. And I am happy to discuss
+any of those cases and questions, but I don't think it serves
+any real purpose here to speculate about the Board's eventual
+answers to questions on which it has sensibly sought a range of
+views.
+ That raises an important point about the Board's role.
+There is no question that the Board has an important policy
+making role under the Act, and that Presidential appointments
+affect the mix of policy considerations that board members
+bring to that role. That is all by congressional design. When
+the Board overturns its own precedent, as the previous board
+majority did in many cases, we may debate whether the new
+decision is good policy or whether it is consistent with the
+statute, a question on which the courts will, of course, have
+the last word. But there is nothing wrong or unusual in the
+Board's reconsidering its own precedents. That is a true even
+if the Board has fewer than five members due to vacancies as
+long as there are three votes to overrule. And I can explain
+that more in questions if there are any.
+ As to the Board's actual decisions so far, I am fairly
+confident that none has broken new ground and none has squarely
+overruled existing precedent. In fact, as Congressman Andrews
+pointed out, over 80 percent of its nearly 300 decisions since
+April 2010 were unanimous. In one that was not that has
+attracted some attention, the Board held that a union's
+peaceful display of stationary banners informing the public
+about a labor dispute with no patrolling, no obstruction of
+traffic did not violate the Act, and that serious First
+Amendment questions would be raised if it did violate the Act.
+ The Board overruled no prior decisions in holding that, but
+it did respond to several court decisions citing exactly these
+same reasons for rejecting prior general counsel's efforts to
+seek an injunction against stationary bannering of this nature.
+ I would also be happy to talk more about the Dana II
+decision, allowing for some pre-recognition framework
+discussions between unions and employers. That decision was
+actually welcomed by many employers. But in the interest of
+time, let me move to the general counsel's office briefly.
+ Two recent memoranda by Acting General Counsel Solomon
+addressed appropriate remedies for serious unfair labor
+practices in the context of union organizing, especially in
+cases where the employer may hope to stop an organizing drive
+in its tracks by firing a leading union activist.
+ In the interest of time, I will just talk about the first
+one, which declared the general counsel's intent to give a high
+priority to unlawful discharges in organizing cases, and to
+consider seeking preliminary reinstatement in Federal Court
+under section 10(j) of the Act. Past general counsels of both
+parties, including Mr. Rosenfeld, have recognized the essential
+role of 10(j) injunctions in addressing discriminatory
+discharges in the organizing context.
+ The Board has since authorized more 10(j) petitions than it
+had in recent months. But those numbers are not outside the
+range of historic practice. And the fact that it has had such
+an extremely high success rate in those cases indicates that
+these are all very strong cases.
+ One final point on preemption of State and local laws. As
+Mr. Rosenfeld has noted, the Federal preemption is decidedly a
+double-edged sword. In the last decade, courts at the urging of
+the Board have struck down on preemption grounds numerous State
+and local laws that were supported by organized labor, and some
+now criticize the Board for challenging four recent State
+ballot initiatives requiring secret ballot elections.
+ In some cases, as in the California case that Mr. Rosenfeld
+mentioned, it is debatable whether a State law is preempted.
+But in the four State secret ballot amendments in this case,
+there is really no debate. These laws are clearly preempted. I
+am aware of no straight-faced argument to the contrary.
+ In conclusion, the current board and acting general counsel
+are doing no more and no less than conscientiously carrying out
+their statutory responsibilities as prescribed by Congress and
+underscored by the Supreme Court. Thank you very much.
+ Chairman Roe. Thank you, Ms. Estlund.
+ [The statement of Ms. Estlund follows:]
+
+ Prepared Statement of Cynthia L. Estlund, Catherine A. Rein Professor
+ of Law, New York University School of Law
+
+ My name is Cynthia Estlund, and I am a law professor at the New
+York University School of Law. Since 1989, after several years of
+practicing labor law at the firm of Bredhoff & Kaiser here in
+Washington, I have taught at the University of Texas School of Law,
+Columbia Law School, and Harvard Law School, as well as at NYU. I have
+published and lectured extensively over the past twenty-two years on
+the law of the workplace, including on various aspects of the National
+Labor Relations Act.
+ I want to thank the Committee for inviting me to offer my
+perspective on recent developments within the National Labor Relations
+Board (NLRB or Board). Recent actions or statements by the Board and
+its Acting General Counsel have attracted interest, and even some
+controversy and criticism. Those include the Board's decision to
+challenge four recent state ballot initiatives on preemption grounds;
+two General Counsel memoranda regarding the use of preliminary
+injunctions and other remedies for unfair labor practices during union
+organizing campaigns; the use or consideration of rulemaking to address
+certain issues; and the solicitation of briefs on significant policy
+issues raised by several pending cases.
+ Before turning to some of the particulars, let me start with my
+conclusion: In my view, these recent proposals and actions are modest
+by any measure, and well within both the boundaries of the Board's
+statutory authority and the traditional scope within which past Boards
+and General Counsels have exercised that authority. Indeed, some of
+what has spurred controversy amounts to no more than the solicitation
+of comments from interested parties on how certain issues should best
+be resolved. Far from running amok or striking out in radical new
+directions, the Board and General Counsel have taken or considered a
+few cautious steps to improve the efficiency and efficacy of the
+Board's administration of the statute and to improve the transparency
+of its decisionmaking. Moreover, in examining the recent developments,
+it is worth keeping in mind that any substantive decisions that the
+Board or its General Counsel do make--whether embodied in a decision on
+an unfair labor practice complaint, a rulemaking, or petition for
+preliminary injunctive relief--are subject to judicial review or
+approval to ensure that they are consistent with the statute and the
+Board's authority. In short, nothing that the Board is doing or has
+proposed to do will work a major change in the labor relations
+landscape.
+ These recent developments should be understood in the context of
+the statutory scheme over which the Board presides. The National Labor
+Relations Act was passed in 1935, amended significantly in 1947 and
+less significantly in 1959 and 1974. In the past fifty years Congress
+has enacted no significant amendments to the basic provisions of the
+Act in spite of dramatic changes in the labor force, the economy, the
+organization of work, and the surrounding legal landscape. That is the
+context within which one should examine proposals, decisions, and
+actions by the current Board and the Acting General Counsel pursuant to
+their statutory responsibility to interpret and administer the nation's
+labor relations regime.
+Some Issues of Process and the Institutional Role of the Board
+ Let me first distinguish process from substance, as law professors
+are wont to do. Some recent developments are procedural in nature, or
+relate to the institutional role of the Board, rather than affecting
+the substance of labor relations policy.
+ Rulemaking: The Board has traditionally announced changes in its
+interpretation of the Act in the course of deciding particular cases;
+and it unquestionably has the statutory authority to do so.\1\ On the
+other hand, courts and commentators, regardless of ideological
+leanings, have often urged the Board to consider acting more often
+through rulemaking,\2\ as it also unquestionably has the authority to
+do.\3\ As the Supreme Court put it, ``rulemaking would provide the
+Board with a forum for soliciting the informed views of those affected
+in industry and labor before embarking on a new course.'' \4\
+Rulemaking--the issuance of a proposed rule, solicitation and
+consideration of public comments, and then issuance of a final rule--
+has several advantages: It allows for more thorough consideration of a
+wider range of views on policy issues with implications that extend
+beyond the parties to a particular case; it facilitates the more
+efficient adjudication of cases raising recurring issues; and it tends
+to promote policy stability because rules tend to last longer than
+precedents adopted through adjudication. But of course the last
+advantage follows from the disadvantage that the rulemaking process
+itself is quite time-consuming. While the Board has only rarely
+proceeded through rulemaking, and may or may not do so beyond the one
+proposed rule issued so far, its decision to do so would be greeted by
+many mainstream observers as a victory for transparency and
+administrative regularity in Board decisionmaking.\5\
+ Solicitation of Briefs: Another recent development has been the
+Board's solicitation of briefs on a number of issues posed by pending
+cases.\6\ As a procedural matter, that approach represents a middle
+ground between simply rendering revised policy judgments through
+adjudication, which has been the well-established norm at the Board,
+and initiating rulemaking proceedings, which is bound to be a rare
+undertaking.\7\ The practice of inviting submission of briefs has at
+least one of the virtues of rulemaking: It allows interested parties
+who may be affected by the Board's deliberations to make their case and
+to introduce relevant viewpoints and considerations that may not
+otherwise enter the adjudication process. The Board's approach in this
+handful of cases in which significant policy issues are raised
+represents a clear advance in terms of public notice, participation,
+and transparency. Moreover, the solicitation of views from a wide range
+of interested parties should not be taken to signal any particular
+outcome on the merits.
+ The Board's Policymaking Role: It is probably not a concern about
+process, but rather speculation about substance, that has brought
+attention to the initiation of one rulemaking and the solicitation of
+briefs in several cases. But that brings us to a related set of issues
+that relate to the Board's institutional role under our nation's labor
+laws. To begin with, the Board's role includes a significant
+policymaking component. The Supreme Court ``has emphasized often that
+the NLRB has the primary responsibility for developing and applying
+national labor policy.'' \8\ That is the scheme that Congress
+established.\9\ The Board's latitude under the NLRA to establish labor
+relations policy has grown narrower over the years. Although the text
+of many key provisions of the NLRA leaves room for interpretation, much
+of that interpretive latitude has been whittled down over the past 75
+years by Supreme Court decisions that have narrowed the scope of the
+Board's discretion. Still, within those constraints, there is no
+question that the Board has an important role in interpreting and
+administering the statute.
+ There is also no question that presidential appointments alter the
+mix of policy considerations that Board members bring to the process of
+statutory interpretation.\10\ That is by congressional design.
+Especially in recent decades, that has led to a degree of policy
+oscillation (or ``flip-flopping'') on a number of recurring issues
+whenever presidential appointments shift majority control of the
+Board.\11\ The previous Board majority in particular gained some
+notoriety for overturning numerous precedents, some recent and some
+well-established. When the Board overturns one of its precedents, it
+may provoke debate among Board members, advocates, and scholars over
+whether the new decision is consistent with the statute (a matter on
+which the courts have the last word), or justified as a matter of
+policy. But there is nothing unusual or illegitimate about the Board's
+reconsidering some of its own precedents. If the current Board does
+so--and that remains largely a matter of speculation so far--its
+decisions will be subject to the normal processes of judicial review
+that confine the Board to carrying out the statute as written by
+Congress and interpreted by the Supreme Court.
+ Preemption: Another dimension of the Board's role in our national
+labor relations framework relates to the preemption of state and local
+laws regulating labor relations. Some have criticized the Board and the
+Acting General Counsel for the decision to threaten suit against four
+states--Arizona, South Carolina, South Dakota, Utah--to enjoin the
+enforcement of constitutional amendments approved by voters in those
+states last November.\12\ Each of these new provisions, with small
+variations, would prohibit workers from seeking union representation,
+and would prohibit employers from voluntarily recognizing a union,
+other than through a secret ballot election; they would prohibit
+reliance by either side on union authorization cards. To understand how
+unexceptional the Board's action is here, it is necessary to understand
+another aspect of the federal labor laws.
+ With the enactment of the NLRA in 1935, and then the major Taft-
+Hartley amendments in 1947, Congress created a comprehensive nationwide
+scheme of labor relations. The Supreme Court has long held that the
+NLRA preempts state and local laws and actions that regulate labor
+relations (with one large explicit exception allowing state right-to-
+work laws). Under the Supreme Court's decisions, the NLRA preempts not
+only state and local actions that directly conflict with the federal
+scheme, but those that regulate virtually any aspect of labor
+relations, including activity that the Act arguably or actually
+protects, arguably or actually prohibits, or intentionally leaves
+unregulated.\13\
+ The Supreme Court has long recognized the power of the NLRB, acting
+through its General Counsel, to sue to enjoin the implementation of
+preempted state laws, and has often done so.\14\ Of course, the Board
+may sometimes be able to protect the federal interest in other ways,
+for example, by intervening in a private suit or supporting one as
+amicus curiae.
+ Preemption doctrine is decidedly a double-edged sword. Especially
+in the last decade, the doctrine has most often blocked state and local
+actions supported by organized labor (and the Board joined in many of
+these lawsuits); unions and their advocates have thus argued for a
+narrower preemption doctrine that gave more room for state variation
+and experimentation. For example, the Supreme Court's most recent labor
+law preemption decision reversed the U.S. Court of Appeals for the
+Ninth Circuit and struck down a California statute that sought to
+ensure that private employers that received state funds (as
+contractors, for example) did not use those funds to support or oppose
+employees' efforts to form a union; the Court held that the law
+infringed employers' ability to speak to their employees on the matter
+of unionization, as Section 8(c) of the Act left them free to do.\15\
+ Sometimes (as in Brown), it is debatable whether the law was
+preempted. In the case of the four state ``secret ballot'' laws, there
+is little room for debate. These laws would take away a well-
+established non-electoral route to union representation, long
+recognized by the courts, and would prohibit voluntary recognition of a
+union on the basis of a card majority. Employees' statutory right to
+seek, and employers' power to grant, union recognition on the basis of
+authorization cards was reaffirmed by the Board during the Bush
+Administration in the Dana decision of 2007.\16\ Of course the Dana
+decision also imposed some new qualifications on voluntary recognition
+based on card check; but that only underscores the extent to which the
+four state laws tread on the core of the Board's regulatory authority.
+Just as a state law requiring employers covered by the NLRB to honor
+card check requests would be pre-empted by federal law, so is its
+prohibition.
+ So, far from being extraordinary, the Board's decision to file suit
+is an unexceptional exercise of its duty to assert its Congressionally-
+granted jurisdiction over the regulation of labor relations in the bulk
+of the private sector, and to oppose state and local laws that are
+``preempted'' by the NLRA. In this context, it would be extraordinary
+had the Board not taken action against the states. This is an
+obligation imposed upon the Board, regardless of the views its members
+may have of the underlying policy decisions reflected in the NLRA. The
+fact that the Acting General Counsel promptly notified the states of
+the NLRB's position, and sought voluntary correction, should be
+commended.
+The Recent Board Decisions and Actions
+ The Board has recently proposed and sought public comment on a new
+rule that would require employers to post a notice informing employees
+of their rights under the NLRA. The proposed rule would merely bring
+practices under the NLRA into line with those under every other major
+federal employment statute (and some minor ones): Currently, employers
+must post notices informing employees of their rights under the Fair
+Labor Standards Act, Title VII of the Civil Rights Act and other
+antidiscrimination statutes, the Occupational Health and Safety Act,
+the Family and Medical Leave Act, among others. That uniformity of
+practice is based on the self-evident fact that employees' statutory
+rights can be more fully realized if they are aware of those rights. It
+is thus an entirely appropriate exercise of the Board's authority under
+Section 6 of the Act to ``make * * * such rules and regulations as may
+be necessary to carry out'' the Act.
+ With regard to adjudications, since April 2010, when the NLRB
+gained a Democratic majority, it has issued almost 300 decisions.
+Nearly 100 of those readopted previous unanimous decisions issued by
+the two-member Board (one Democratic and one Republican appointee)
+whose authority to act was struck down by the Supreme Court in the New
+Process decision.\17\ Of the total of 292 decisions issued since last
+April, over 80 percent were unanimous.\18\
+ The remaining decisions were divided, but not always along party
+lines. For example, Chairman Liebman joined Member Becker in holding
+that a union flyer to employees about union dues obligations
+constituted an unlawful threat and an unfair labor practice.\19\
+Democratic Member Pearce dissented, and would have dismissed the
+complaint. In another case, a Board majority required a union to
+rescind its requirement that employees who object to paying full union
+dues under Beck renew their objection annually (a requirement that had
+first been permitted by Republican-appointed General Counsel Rosemary
+Collyer).\20\ Members Schaumber and Hayes filed individual opinions,
+concurring in part & dissenting in part; and Member Pearce filed a
+dissent.
+ In several decisions, Board panels split along party lines--much as
+past Boards have done--but the majority's decision broke no new ground
+and overruled no precedents. So, for example, a Board decision required
+employers who post other employment-related notices electronically to
+post remedial NLRB notices in the same manner.\21\ Another split
+decision attracted more attention, but in fact hewed closely to
+traditional Board law and judicial precedents: The Board held that a
+union's peaceful display of stationary banners advising the public of
+the existence of a labor dispute--with no patrolling and no obstruction
+of sidewalk traffic or building entrances--did not violate the NLRA
+because it was not ``coercive.'' \22\ The Board majority recognized
+that a contrary ruling would raise serious First Amendment concerns--
+concerns that in recent years had led several federal district courts
+and the Ninth Circuit Court of Appeals to reject the previous Board's
+petitions to enjoin these peaceful informational displays. The decision
+is long, methodical, and balanced in its assessment of the caselaw both
+under the Act and under the First Amendment.
+ Another long pending case also split the Board panel, with Chair
+Liebman and Member Pierce producing a decision, over Member Hayes'
+dissent, that was welcomed by many employers: The Board held that an
+employer and a union did not violate the Act by agreeing on a framework
+for future bargaining prior to the union's gaining majority support
+among the employees, noting that the employer in this case neither
+recognized the union nor negotiated the terms of a contract before the
+union was selected by a majority of employees to represent them.\23\
+The Board cited the argument of several management attorneys, as well
+as scholars, that employers' ability to negotiate a framework of this
+sort lays the foundation for a productive collective bargaining
+relationship, and promotes their business interests, in the event the
+employees choose to be represented by the union.\24\ The Board quoted
+two management attorneys to this effect:
+ As in other potential business relationships, the employer should
+be able to talk to the other side and perhaps even reach some
+preliminary understandings before it determines whether it wants to
+avoid such a relationship or not.\25\
+ Moreover, as the Board majority held, employees' ability to make a
+free and informed choice regarding unionization was fully protected,
+and even advanced, by their ability to examine the rough outlines of
+what they would gain through union representation and collective
+bargaining.
+ Then there are a number of cases in which the Board has not decided
+anything, but has solicited briefs from interested parties on a number
+of questions that might arise in the cases. In Roundy's, Inc. (Case No.
+30-CA-17185), the question is under what circumstances an employer's
+refusal to allow non-employee union speakers access to private property
+constitutes discrimination in violation of the Act. Current Board law
+on this issue has been rejected by some courts of appeals, including
+the 6th Circuit in Sandusky Mall v. NLRB,\26\ which take a narrower
+view of what constitutes discrimination; other courts of appeals have
+affirmed the Board's decisions in this area. In its request for briefs,
+the Board has simply asked the parties to address the question of
+whether the Board should reconsider the question in light of what these
+reviewing courts have held. It is entirely proper, given the judicial
+reception the Board's current caselaw has received, that the Board
+should give careful consideration, and seek a range of views, on this
+difficult statutory question.
+ In Lamons Gasket Co., Case No. 16-RD-1597, the Board has solicited
+briefing on whether it should modify or rescind the Dana I rule. Dana I
+(which itself overruled a 40year old Board precedent) held that that an
+employer's voluntary recognition of a union based on a card majority
+does not immediately trigger the ``recognition bar'' that normally
+follows voluntary recognition--that is, a year-long bar of rival or
+decertification petitions; rather, the recognition bar would begin only
+after the employer had posted for 45-days a Board-approved notice
+advising employees on their right to file a petition to oust the
+recently recognized union. This rule has required the expenditures of
+Board resources, and probably delayed the onset of collective
+bargaining in some cases; but it has apparently reversed very few
+outcomes. After more than two years, the parties now have sufficient
+experience with this new rule to offer valuable input into the Board's
+deliberations. The solicitation of briefs on this issue thus makes good
+adjudicatory sense.
+ The Board has also solicited views in several additional cases
+involving bargaining units in long term care facilities,\27\ the duties
+of successor employers toward an incumbent union,\28\ and to consider
+whether the Board should assert jurisdiction over an Illinois charter
+school or whether it is instead exempt from NLRA coverage as a
+government entity.\29\ These cases are all standard grist for the
+Board's mill. There is no reason to believe that Board will decide
+these cases in a manner that is any less responsible than that
+exhibited by other cases it has decided over the last year. But perhaps
+most important for present purposes, the Board has not decided
+anything. It is hard to understand why the Board would court
+controversy by calling attention to these pending cases and soliciting
+views on these issues if it did not intend to actually consider those
+views.
+Recent General Counsel Memos
+ Two recent memoranda by the Acting General Counsel have drawn some
+attention. Both address the appropriate remedial response to serious
+unfair labor practices in the context of union organizing. Many
+commentators and past General Counsels of the Board--Republican as well
+as Democratic appointees--have lamented the narrow range of remedies
+available under the statute to address employer interference with
+employees' statutory right to choose whether to form a union and engage
+in collective bargaining.\30\ The statute permits only equitable
+remedies, which are neither fully compensatory nor calculated to deter
+illegal conduct; they fall far short of the remedies that Congress has
+seen fit to prescribe in employee rights statutes enacted in the past
+50 years, such as the employment discrimination laws.
+ The weaknesses of the standard equitable remedies, and the duration
+of the standard adjudicative process, are especially problematic in
+cases in which the employer may hope to stop an organizing drive in its
+tracks by firing a leading union activist. Absent prompt reinstatement,
+this illegal firing will predictably chill others from joining the
+union, as well as remove from the workplace a leading union advocate.
+The fact and the fear of retaliation will ``nip in the bud'' efforts to
+unionize, even if a remedy is eventually forthcoming years later. And
+employers facing only a long-distant threat of being ordered to
+reinstate the employee (which is often unrealistic years after a
+discharge) and to pay backpay (offset by what the employee earned or
+should have earned in the interim) are sorely tempted to violate the
+Act.
+ The Acting GC issued a Memorandum on September 30th, 2010 declaring
+his effort ``to give all unlawful discharges in organizing cases
+priority action and a speedy remedy.'' \31\ The Memorandum outlined
+procedures to expedite investigations of discriminatory firing, and to
+secure prompt GC approvals of requests from the Regional Offices for
+preliminary injunctive relief from the federal courts under Section
+10(j) of the NLRA. That means that the Board's attorneys may sue in
+federal court, and if the court concludes that they meet all the normal
+requirements for preliminary relief--in particular a strong probability
+of success on the merits--the court may order the employer to reinstate
+the discharged employee.
+ Following this memo, there was a significant uptick in the number
+of 10(j) cases.\32\ Of the 59 cases submitted to the General Counsel's
+office by the Regional Offices, only 16 were submitted to the Board for
+authorization, and the Board approved 15 to proceed with litigation.
+The very high success rate on those cases that have been concluded
+(total or partial success in all cases)\33\ indicates that, far from
+pushing the boundaries of what the law authorizes, the General Counsel
+and Board have acted cautiously and prudently, and brought only strong
+cases to the courts.
+ The number of Section 10(j) injunctions has ebbed and flowed over
+the years, but their usefulness has long been widely recognized.
+Several General Counsels in the past have emphasized the essential role
+of these injunctions in redressing the impact of discriminatory
+discharges, especially in the organizing context. For example, former
+General Counsel Meisburg observed that, ``[d]uring my tenure as General
+Counsel, I continued to support the use of Section 10(j) as an
+essential tool in the effective administration of the Act. As has long
+been recognized, in some unfair labor practice cases, the passage of
+time inherent in the Board's normal administrative process render its
+ultimate remedial orders inadequate to protect statutory rights and to
+restore the status quo ante.'' \34\ The current GC's guidelines and
+practices do evince a strong focus on protecting employees' right to
+decide whether to form a union, but they break no new ground, nor is it
+likely that they will do so, given the need to present every one of
+these cases to a federal court before any injunction can issue.
+ In December, 2010, the Acting General Counsel issued a second
+memorandum in which he outlined additional remedies the Board could use
+to more effectively protect employees' freedom of choice against
+serious misconduct by employers in the context of union organizing
+campaigns. In addition to the standard remedies that the Board
+generally pursues--reinstatement and backpay (in discharge cases) and
+cease-anddesist and posting of notices (in other cases)--the General
+Counsel's memo outlined additional remedies that are designed to
+mitigate the chilling effect that unlawful acts, particularly
+``hallmark violations'' such as discriminatory discharges and the
+threat of job loss and plant closing, can have on employees' ability to
+exercise their rights under the Act. Those remedies may include
+additional provisions for affording employees' notice of prior
+violations, measures to improve unions' ability to communicate with
+workers both at work and away from work. The purpose of all of these
+remedies would be to help recreate an atmosphere in which workers feel
+free to exercise their Section 7 rights.
+ It is crucial to recall that these additional remedies are to be
+sought only against employers that have been found to have committed
+serious violations of the Act. The GC's memo emphasized that the
+decision to pursue these remedies would be evaluated on a case-by-case
+basis and only when there was strong evidence of the ``lasting or
+inhibitive coercive impact'' of the violation and of the potential
+remedial impact of the proposed remedy. Moreover, none of the Board's
+remedies can take effect without an opportunity for judicial review or
+judicial enforcement. All three of these additional remedies have been
+repeatedly affirmed by courts--again, in appropriate cases in which the
+standard remedies are shown to be inadequate to remedy the effects of
+serious employer illegality--as well within the range of discretion
+granted the Board as the institution with ``the primary responsibility
+* * * [for] devis[ing] remedies that effectuate the policies of the
+Act.'' \35\ Once again, there is simply no room under the statute for
+the Board to overreach its authority, even if it were moved to do so;
+and nothing in what the Board or its General Counsel has done so far
+suggests any such inclination.
+Conclusion
+ In conclusion, the current Board and Acting General Counsel are
+doing no more and no less than conscientiously carrying out their
+responsibilities, as prescribed by Congress and underscored by the
+Supreme Court, in administering and enforcing the National Labor
+Relations Act.
+ endnotes
+ \1\ See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (``The
+Board is not precluded from announcing new principles in an
+adjudicative proceeding[;] the choice between rulemaking and
+adjudication lies in the first instance within the Board's
+discretion''); NLRB v. Wyman-Gordon, 394 U.S. 759 (1969).
+ \2\ See Bell Aerospace, supra note 1, at 295; NLRB v. Majestic
+Weaving Co., 355 F.2d 854, 860 (2d. Cir. 1966). Encouragement of
+rulemaking is a recurring refrain among commentators. See James J.
+Brudney, Isolated and Politicized: The NLRB's Uncertain Future, 26
+COMP. LAB. L. & POL'Y. J. 221 (2005); Samuel Estreicher, Policy
+Oscillation at the Labor Board: A Plea for Rulemaking, 37 ADMIN. LAW
+REV. 163 (1985); Catherine L. Fisk & Deborah C. Malamud, The NLRB in
+Administrative Exile: Problems with its Structure and Function and
+Suggestions for Reform, 58 DUKE L. J., 2013 (2009); Kenneth Kahn, The
+NLRB and Higher Education: The Failure of Policymaking through
+Adjudication, 21 U.C.L.A. L. REV. 63 (1975); Cornelius J. Peck, The
+Atrophied Rule-Making Powers of the National Labor Relations Board, 70
+YALE L.J. 729 (1960).
+ \3\ See Section 6 of the NLRA: ``The Board shall have authority
+from time to time to make, amend and rescind, in the manner prescribed
+by subchapter II of chapter 5 of Title 5, such rules and regulations as
+may be necessary to carry out provisions of this subchapter.'' The
+Supreme Court upheld this authority in American Hospital Association v
+NLRB, 499 U.S.606 (1991), having previously encouraged its more
+frequent use in Bell Aerospace, supra note 1.
+ \4\ Bell Aerospace, supra note 1, at 295.
+ \5\ The one rule that the Board has actually proposed through
+rulemaking proceeding, as discussed below, is well-grounded and long-
+overdue.
+ \6\ So for example, in one such amicus brief, a group supporting
+the employer on behalf of ``businesses of all sizes from every industry
+sector in every region of the country'' noted that it ``welcome[d] the
+opportunity'' to express its views to the Board. Brief for Coalition
+for a Democratic Workplace as Amicus Curiae Supporting Respondent,
+Roundy's, Inc., Case No. 30-CA-17185 (2011).
+ \7\ This process has been used by the Board before, but not often
+enough in the view of Professor Samuel Estreicher, for example. Samuel
+Estreicher, Policy Oscillation at the Board: A Plea for Rulemaking, 37
+ADMIN. L. REV. 163, 174 (1985).
+ \8\ Curtin Matheson Scientific v. NLRB, 494 U.S. 775, 786 (1990)
+(citing Beth Israel Hospital v. NLRB, 437 483, 500-501 (1978); NLRB v.
+Erie Resistor Corp., 373 U.S. 221, 236 (1963); NLRB v. Truck Drivers,
+353 87, 96 (1957)).
+ \9\ As the Court has explained, ``it is to the Board that Congress
+entrusted the task of `applying the Act's general prohibitory language
+in the light of the infinite combinations of events which might be
+charged as violative of its terms' ''; if the Board ``is to accomplish
+the task which Congress set for it, [it] necessarily must have
+authority to formulate rules to fill the interstices of the broad
+statutory provisions.''Curtin Matheson, 494 U.S. at 786 (citing Beth
+Israel Hospital, 437 U.S. at 500-501, and Republic Aviation Corp. v.
+NLRB, 324 U.S. 793, 798 (1945)).
+ \10\ As the Supreme Court has emphasized, ``[t]o hold that the
+Board's earlier decisions froze the development of this important
+aspect of the national labor law would misconceive the nature of
+administrative decisionmaking.'' NLRB v. J. Weingarten, Inc., 420 U.S.
+251, 265-266 (1975). See also Curtin Matheson, 494 U.S. at 786 (``A
+Board rule is entitled to deference even if it represents a departure
+from the Board's prior policy'').
+ \11\ Samuel Estreicher, Policy Oscillation at the Labor Board: A
+Plea for Rulemaking, 37 ADMIN. L. REV. 163 (1985).
+ \12\ The Acting General Counsel's letter to the Attorneys General
+sought to secure voluntary resolution of the preemption conflict
+without ligitation. But the Attorneys General of the four states vowed
+to defend the new provisions, and called the decision to threaten suit
+against them ``extraordinary.'' A.G. Response to NLRB Concerning Secret
+Ballots, January 27, 2011, available at http://
+attorneygeneral.utah.gov/cmsdocuments/nlrb012711.sol.pdf.
+ \13\ The Supreme Court concisely summarized its preemption doctrine
+recently in Chamber of Commerce v. Brown, 554 U.S. 60, 64 (2008):
+Although the NLRA itself contains no express pre-emption provision, we
+have held that Congress implicitly mandated two types of pre-emption as
+necessary to implement federal labor policy. The first, known as Garmon
+pre-emption, see San Diego Building Trades Council v. Garmon, 359 U.S.
+236 (1959), ``is intended to preclude state interference with the
+National Labor Relations Board's interpretation and active enforcement
+of the `integrated scheme of regulation' established by the NLRA.''
+Golden State Transit Corp. v. Los Angeles, 475 U.S. 608, 613 (1986). To
+this end, Garmon preemption forbids States to ``regulate activity that
+the NLRA protects, prohibits, or arguably protects or prohibits.''
+Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986).
+The second, known as Machinists pre-emption, forbids both the [NLRB]
+and States to regulate conduct that Congress intended ``be unregulated
+because left `to be controlled by the free play of economic forces.' ''
+Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S. 132, 140
+(1976) (quoting NLRB v. Nash-Finch Co., 404 U.S. 138, 144 (1971)).
+ \14\ NLRB v. Nash-Finch Co., 404 U.S. 138 (1971).
+ \15\ Chamber of Commerce v. Brown, 554 U.S. 60 (2008).
+ \16\ Dana Corp., 351 N.L.R.B. 434 (2007) (``We do not question the
+legality of voluntary recognition agreements based on a union's showing
+of majority support. Voluntary recognition itself predates the National
+Labor Relations Act and is undisputedly lawful under it.'').
+ \17\ BNA Daily Labor Report, January 21, 2011, NLRB Has a Full
+Docket, Major Cases, and Plans for an Active Year.
+ \18\ For example, in Jackson Hospital Corp., d/b/a Kentucky River
+Medical Center, 356 NLRB No. 8 (October 22, 2010), the Board
+unanimously authorized daily compounding of interest on backpay awards,
+in response to requests by past General Counsels, both Republican and
+Democratic appointees, over ten years, and consistent with the
+universal practice of awarding compound interest on damage awards in
+other areas of the law.
+ \19\ SEIU, Local 121RN, 355 NLRB No. 40 (2010)
+ \20\ Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB No.
+174 (2010).
+ \21\ J & R Flooring, Inc., d/b/a J. Picini Flooring, 356 NLRB No. 9
+(2010).
+ \22\ Local 1506, UBC (Eliason & Knuth of Arizona, Inc.), 355 NLRB
+No. 159 (2010):
+ \23\ Dana Corp. and International Union, UAW, Cases 7-CA-46965, 7-
+CA-47078, 7-CB-14083, 7-CA47079, 7-CB-14119, 7-CB-14120 (Dec. 6, 2010)
+(Dana II).
+ \24\ See, e.g., Marshall Babson, Bargaining Before Recognition in a
+Global Market: How Much Will It Cost?, 58 LAB. & EMPL. REL. ASS'N
+SERIES 113 (2006), available athttp://www.press.uillinois.edu/journals/
+irra/ proceedings2006/babson.html; Stanley J. Brown & Henry Morris,
+Jr., Pre-recognition Discussions with Unions in U.S. LABOR LAW AND THE
+FUTURE OF LABOR-MANAGEMENT COOPERATION: SECOND INTERIM REPORT--A
+WORKING DOCUMENT 98, 99 (U.S. Dep't of Labor, 1988).
+ \25\ Dana II, citing Brown & Morris, supra.
+ \26\ 242 F3d 682 (2011).
+ \27\ Specialty Healthcare, Case No. 15-RC-8773
+ \28\ UGL-Unicco Service Co., Case No. 1-RC-22447; Grocery Haulers,
+Inc., Case No. 3-RC-11944
+ \29\ Chicago Mathematics & Science Academy Charter School, Inc.,
+Case No. 13-RM-1768
+ \30\ Former General Counsel Ronald Meisburg focused much attention,
+for example, on the need for stronger and faster remedies in first
+contract bargaining cases: Where there are bad faith bargaining tactics
+or other violations in the initial bargaining process that
+substantially delay or otherwise hinder negotiations, merely ordering
+the parties to bargain may not return the parties to the status quo
+ante. I believe that additional measures are often necessary in these
+situations to truly restore the conditions and the parties'
+relationships to what would have existed absent the violations * * *
+[In these circumstances] certain remedies specifically tailored to
+restore the pre-unfair labor practice status quo, make whole the
+affected parties, and promote good-faith bargaining should regularly be
+sought in initial bargaining cases where violations have interfered
+with contract negotiations. Memorandum GC 07-08, Additional Remedies in
+First Contract Bargaining Cases (May 29, 2007).
+ \31\ Memorandum GC 10-07, Effective Section 10(j) Remedies for
+Unlawful Discharges in Organizing Campaigns, from Lafe Solomon to all
+Regional Directors, September 30, 2010.
+ \32\ From October 1 through December 31, 2010, regional offices
+submitted 59 recommendations for Section 10(j) relief to NLRB
+headquarters--43 petitions more than were submitted by the regions
+during the same quarter in FY 2009. BNA Daily Labor Report, January 21,
+2011, NLRB Has a Full Docket, Major Cases, and Plans for an Active
+Year.
+ \33\ NLRB Statistics, 10(j) Authorizations, 1st quarter FY 11; 11
+of 15 cases were concluded, while 4 remained open at the end of the
+quarter. Of the 11 cases pursued to conclusion, 7 were settled and 4
+concluded in court (all 4 of which resulted in either a complete or
+partial win for the NLRB).
+ \34\ End-of-Term Report on Utilization of Section 10(j) Injunction
+Proceedings, January 4, 2006 through April 30, 2010 (June 2, 2010). See
+also GC 07-01, December 16, 2006 (``Section 10(j) relief is
+particularly well suited to accomplish the goal of protecting the
+representational choice of employees, collective bargaining, and labor
+peace, while also encouraging the use of Board election processes.'')
+ \35\ Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 899 (1984). See, e.g.,
+United Steelworkers of America v. NLRB, 646 F.2d 616, 640 (D.C. Cir.
+1981) (upholding a Board order granting the union broad rights of
+access to a plant where repeated unfair labor practices occurred, as
+well as to two plants where organizational activity had been conducted
+and all other company locations where no organizational drives had yet
+begun, as ``within the authority of the Board to impose''; ``the Board
+was clearly entitled, in shaping its remedial order in this case, to
+consider the extensive record of past unlawful activity. * * *''); J.
+P. Stevens & Co. v. NLRB, 388 F.2d 896, 906 (2d Cir. 1967) (upholding
+Board order granting union access to company bulletin boards in order
+``to dissipate the fear in the atmosphere within the Company's plants
+generated by its anti-union campaign.''); Montgomery Ward & Co. v.
+NLRB, 339 F.2d 889 (6th Cir. 1965) (enforcing a Board order granting
+the union equal time to address employees after the employer unlawfully
+prohibited employee solicitation in nonworking areas of the store
+during nonworking time).
+ ______
+
+ Chairman Roe. Mr. King.
+
+ STATEMENT OF G. ROGER KING, PARTNER, JONES DAY
+
+ Mr. King. Thank you Chairman Roe. Thank you again for
+having me before this committee. I appreciate the opportunity.
+And ranking members and minority members, thank you also for
+having me.
+ I am going to start with preemption, since that seems to be
+a subject of some interest. It is debatable whether we are in a
+preemptive mode with respect to State actions just described.
+One solution to that is for this body to pass the Secret Ballot
+Protection Act to avoid all of the litigation that might be
+attendant thereto, and hopefully this committee will take that
+up in this Congress.
+ Let me move to my remarks. I am going to go through them,
+and they are summarized at page 2 through page 5.
+ We can debate about what the Board does or does not do.
+Reasonable people can differ. The distinguished panel I am with
+here today I would share some of their viewpoints, I would
+differ with some of the professor's viewpoints. I do think that
+people serving on the Board are of high integrity and they are
+trying to do the best they can, including the acting general
+counsel.
+ One of the principle problems we have at the very outset of
+this discussion is we don't have a fully confirmed board. We
+only have two confirmed Democrat members and only one confirmed
+Republican. That is not a good policy irrespective of one's
+viewpoint. We ought to have a fully confirmed five member board
+to make these important decisions that impact our Nation's
+labor laws.
+ The Chair of the Board, Chairman Liebman, has so stated,
+and I mention it in my testimony, her statement on the record
+in a case where she states there is a long held tradition at
+the Board to have five members making decisions. I think we
+should pause a moment here before we engage particularly in
+rulemaking until we get a full five member complement. Then we
+can proceed to have whatever discussions and whatever the case
+adjudication we might have.
+ Second, I am quite concerned, as many employers are, about
+the accelerated nature of the decision making process.
+ What is really happening, ladies and gentlemen, is the
+Board is hurrying up its agenda apparently to accommodate one
+very controversial member, the recess member, Craig Becker, and
+apparently the Chair, whose term will expire in August. That is
+not good sound public policy, irrespective of how we come out
+on these issues.
+ Why not use the Administrative Procedure Act with all its
+safeguards and proceed in a thoughtful manner? There is
+precedent for that. I was involved when the health care rule
+was promulgated. There the Board held multiple hearings, took
+testimony, went to great lengths to be careful about how it
+proceeded. That is not the picture we are seeing here today.
+ Third, the procedural framework that some of the cases are
+coming to the Board and the requests for amicus briefs, which
+might help in part, but they don't substitute for the
+Administrative Procedure Act. Simply filing a brief does not
+substitute for thorough hearings, thoughtful analysis. That is
+a misnomer. There is no middle ground here. I differ with my
+colleague on that point. We need to be careful. But this board
+has, sua sponte, raised issues that are not even the cases
+before them.
+ Next, there is precedent for this body to withhold funding
+for this or any other agency that engages in particularly
+rulemaking that is not appropriate. That has happened in the
+past. This body, for 3 fiscal years, as noted in my testimony,
+refused to fund an initiative, a rulemaking initiative of the
+Board. Subsequently, the Board withdrew that rule.
+ With respect to the Office of General Counsel, yes, very
+active, we all would agree but the action regarding deferral
+with respect to arbitrations and how that works has been turned
+upside down. Not a good idea. We can talk more about that. But
+it is going to chill the use of private dispute resolution
+procedures used by both unions and employers.
+ Furthermore, the 10(j) injunction approach, where virtually
+any and every case is a 10(j) injunction, makes no sense. It
+chills particularly small business and its ability to respond.
+They can't afford to win.
+ Finally, I would points out to this committee that the
+President, through his executive order on January 18, asked the
+entire government to be more careful about rules and
+regulations. Now traditionally, such an executive order is not
+applicable to administrative agencies. OMB then earlier this
+month said, yes, all administrative agencies should so proceed.
+U.S. Chamber of Commerce has also asked that each
+administrative agency so proceed.
+ Hopefully, the National Labor Relations Board will follow
+the dictate of the President's executive order. I have not seen
+anything at all from the Board, but to reexamine these rules
+and regulations.
+ Mr. Chairman, I would be pleased to answer questions as we
+proceed. Thank you.
+ Chairman Roe. Thank you.
+ [The statement of Mr. King follows:]
+
+ [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
+
+ [Exhibits C and D submitted by Mr. King may be accessed at
+the following Internet address:]
+
+ http://www.nlrb.gov/search/nlrbdocsearch/Roger%20King%2030-CA-
+ 017185?page=1
+
+ ______
+
+ Chairman Roe. And our first questioner will be Dr. Heck.
+ Mr. Heck. Thank you. My question is for Mr. King. Mr. King,
+on December 22 of last year the Board invited briefs on
+Specialty Healthcare and Rehabilitation Center of Mobile to
+determine what constitutes an appropriate bargaining unit.
+Although the case involved nursing homes directly, the Board
+requested comments that appeared to cover hospitals both acute
+and nonacute health care facilities. It is my understanding
+that you represent a number of health care facilities.
+ Currently, how are bargaining units determined in acute and
+nonacute health care facilities? And what is your opinion of
+the current procedures? And how would it change to the
+determination of bargaining units affect hospitals and patient
+care?
+ Mr. King. A number of points to your question. First of
+all, the specialty health care case is of a questionable
+vehicle, Congressman, to even raise these issues. Nowhere in
+the underlying facts of that decision were the broad policy
+issues the Board is now trying to tee up, if you will. So that
+is a questionable procedural backbone.
+ Second, the rulemaking process for nonacute care, long-term
+care facilities, there is no support to even engage in that. We
+have already done some support analysis and research. The
+number of cases that are contested in that area are virtually
+nil that get to the Board. We don't even understand why this is
+going on.
+ Third, this approach in question 7 and question 8 of the
+notice for amica participation, interested party participation,
+would expand it to all industries. Why are we doing that in a
+rather run-of-the-mill representation case and potentially
+overturning law in all areas, including hospitals perhaps? It
+makes no sense, Mr. Congressman, and I don't know we are
+proceeding that way. And that is one of the underlying problems
+here. We have a very activist board that appears to go by the
+back door, not through rulemaking. This is not a rulemaking
+approach. They refuse to do so. So I think your questions raise
+serious policy concerns.
+ Mr. Heck. Do you believe that this type of rulemaking
+decision making has an impact on patient care?
+ Mr. King. Absolutely. I can tell you as an active
+practitioner, I am in a hospital maybe 3 or 4 times a week
+somewhere in the country. We right now are having to litigate
+issues over access.
+ I was talking to the chairman earlier today. If a hospital
+lets in the Red Cross or the American Heart Association, for
+example, for some charitable activity, under the Chair's view,
+at least in a dissent, and existing board law, that hospital
+has to let everyone else in, including any union or any other
+group. And that causes chaos. We have here in the District of
+Columbia just recently had to escort out of our corridors union
+organizers. They are up on nursing floors. And the hospital is
+not sure how far it can go because it might get an unfair labor
+practice charge.
+ This interferes just in that area alone. Banners and
+picketing, these banners that are so mild apparently to some
+are very disruptive to others. We have had in Florida
+institutes where a union put in front of a hospital caskets,
+albeit they weren't real, skeletons, albeit they are not real,
+and someone dressed up as the grim reaper marching back and
+forth. What kind of an environment is that for a patient coming
+into a hospital? I could go on. I know my time is limited. But
+absolutely, you are right on your question.
+ Mr. Heck. Thank you, Mr. King. Thank you, Mr. Chairman. I
+yield back.
+ Chairman Roe. Thank you. Ranking Member Andrews.
+ Mr. Andrews. Thank you, Mr. Chairman. Again, thank the lady
+and gentlemen for their testimony which I apologize for not
+being present when you spoke, but I did read it and it was all
+very well thought out and very helpful. Thank you.
+ I wanted to ask Mr. Miscimarra, did I pronounce your name
+correctly? And also Mr. King, welcome back to the committee, I
+think in both cases. Could you outline for me your concerns
+about the general counsel's letter to the States that are
+enacting or attempting to enact State law that the general
+counsel believes are preempted with card check or whatever.
+What are your concern about those letters?
+ Mr. Miscimarra. I share the same concerns that were
+articulated by Arthur Rosenfeld to my left. I think that the
+better way to approach those particular issues is for them to
+be addressed by the Congress. And one of the themes that
+really, I think, goes through many of the things we are
+discussing at the hearing is the lead from these, on many of
+these issues, should come from the Congress rather than have
+the Board at the forefront of some of them.
+ Mr. Andrews. Mr. King, what do you think?
+ Mr. King. Good to see you again.
+ Mr. Andrews. Nice to see you.
+ Mr. King. Your Cornell Law School education I am sure will
+get you through this analysis.
+ Mr. Andrews. People from Cornell Law School have a way to
+seeing things well, don't we? We are proud to have you in our
+alumni body.
+ Mr. King. Thank you very much. The preemption discussion is
+a difficult one. In the California case that was mentioned
+earlier by Mr. Rosenfeld, our firm litigated. We were
+successful in the United States Supreme Court having that
+statute overturned as being preempted.
+ However, what we are dealing with with respect to the
+different State initiatives are constitutional initiatives.
+That, I think, is the important distinguishing characteristic.
+But the preemption issue, Mr. Andrews, is a difficult one. You
+know that. I think the better course of action would be for the
+Congress to enact the Secret Ballot Protection Act to avoid all
+of this litigation.
+ Mr. Andrews. I am asking something of a different question.
+And that is, do you think there is anything inappropriate about
+the general counsel sort of taking the lead on writing the
+letters that were written, statements made to the States trying
+to do constitutional amendments?
+ Do you have any problem with that?
+ Mr. King. I believe it is appropriate to the general
+counsel to raise the question. I would ask the general counsel,
+the acting general counsel, to raise those same concerns in the
+literally hundreds of initiatives that organized labor is
+pursuing, that would also be exempted which we don't see.
+ Mr. Andrews. Because in reading your testimony, I think it
+is a fair statement that you would characterize those actions
+by the general counsel as part of the culture of the labor
+board that discomforts you. Is that a fair statement?
+ Mr. King. It clearly falls within the definition of the
+very activist nature of this present board and its general
+counsel.
+ Mr. Andrews. I think it is actually one of the points that
+you make in your written testimony about what is wrong with the
+sort of aggressive and unbiased board. Is that fair to say
+that?
+ Mr. King. It would fit within those remarks yes, sir.
+ Mr. Andrews. I just want to ask, one of your fellow
+panelists, Mr. Rosenfeld, on November 26, 2003, when he was
+general counsel, wrote a letter to the attorney general of
+North Dakota. And North Dakota, at the time, was considering, I
+believe, statutory law that afforded employees certain rights
+not afforded by the National Labor Relations Act. And the
+letter which I would ask be entered in the record from Mr.
+Rosenfeld essentially said, these would be preempted, we think
+that North Dakota shouldn't do what it is doing, and he said he
+was hopeful that the State of North Dakota would agree to take
+voluntary measures to repeal the statute, which, of course, is,
+I am from New Jersey, so I know what the implication there was,
+if you don't take the voluntary measures there are other things
+that we could do. I am suggesting they would have been legally
+appropriate measures obviously in this case. So was he wrong,
+Mr. King, when he wrote that letter?
+ Mr. King. Mr. Rosenfeld?
+ Mr. Andrews. Yes.
+ Mr. King. He was acting pursuant to his statutory duties at
+the time.
+ Mr. Andrews. Isn't the general counsel doing exactly that
+now?
+ Mr. King. I would concur, as I said earlier, that Acting
+General Counsel Solomon had a duty to raise the issue. I think
+it would not be wise to initiate litigation. And again, the
+proper place to settle this discussion is here in this body.
+ Mr. Andrews. Mr. Rosenfeld, did you have to initiate
+litigation against North Dakota? Do you remember?
+ Mr. Rosenfeld. I honestly don't remember that particular
+issue. I do note, however, that the tone of the letter was more
+gentile as you described it.
+ Mr. Andrews. It was much more gentile than New Jersey
+language, I will give you that. But you did say, you hoped it
+could be dealt with voluntary, but obviously you had the
+authority as general counsel to initiate litigation. Is there
+anything wrong with initiating litigation if they had refused
+to voluntarily repeal the statute?
+ Mr. Rosenfeld. No.
+ Mr. Andrews. Thank you very much. I yield back the balance
+of my time.
+ Chairman Roe. Thank you. Mrs. Roby.
+ Mrs. Roby. Thank you, Mr. Chairman. And thank you to the
+witnesses for your thoughtful testimony. Representing a
+district that is a right-to-work State, the activist agenda of
+the current National Labor Relations Board greatly concerns me.
+And while I strongly feel that employees' rights should be
+protected and that they should have a right to organize and
+negotiate with their employer, I feel equally strong about
+protecting an individual from being forced to join a union or
+an employer being coerced by a national labor union.
+ Just this week, the U.S. Bureau of Labor Statistics
+reported that in my State of Alabama, the number of workers
+belonging to a union was 183,000. This accounts for 10.1
+percent of wage and salaried workers. An additional 20,000 wage
+and salary workers were represented by a union in their main
+job or were covered by an employee association contract while
+not being union members themselves.
+ Nationally, the number of workers belonging to unions fell
+by 612,000 to 14.7 million in 2010, which, on the national
+level, is 11.9 percent of employed wage and salary workers.
+Even though Alabama is slightly lower than the national
+average, it is far ahead of many other States. It concerns me
+the attempts of the national union groups and the current NLRB
+attempts to remove the constitutional right to freedom of
+association that Alabama and other right-to-work States are
+committed to protecting.
+ The recent rulings of the NLRB have demonstrated a pro
+union approach in an attempt to erode Alabama and other right-
+to-work State status.
+ So my question is for Mr. Miscimarra, regarding the
+December 21, 2010 publishing of a substantive notice of
+proposed rulemaking requiring almost all covered employers to
+post a notice of employee rights in the workplace. So does the
+Board have the authority to require the posting of a notice
+covering the employee rights in the workplace, and then
+following that, ignoring whether the Board has the authority to
+require the posting of such notice, what should be included in
+the notice to provide employees with an unbiased understanding
+of their rights?
+ Mr. Miscimarra. Thank you, Congresswoman. I will also
+address the point made by Professor Estlund, which is, and many
+people look at those notice issues and say, well, it is just
+another notice. And I think there are a couple of points that
+are relevant which indicate that this is really not
+appropriately within the Board's authority.
+ First, a number of statutes, and the Board has identified
+this in their proposed rule, the Age Discrimination in
+Employment Act, title 7, the Fair Labor Standards Act, the
+Occupational Safety and Health Act, that have explicit
+provisions in the statutes that require the posting of a
+notice. And what is conspicuously absent from the National
+Labor Relations Act is a similar requirement.
+ I also think that there is some overreaching at the present
+time, union membership constitutes 6.9 percent of the private
+sector, but the Board would have these notices posted in almost
+all of the employers that are subject to the Act. And I also
+think that the content of the proposed notice that has been
+distributed by the Board is troublesome in a couple of
+different respects.
+ First, there is nothing in the proposed notice that relates
+to decertification union representative status. And if you are
+going to instruct somebody to ride the bus, you should cover
+getting on the bus and getting off the bus.
+ Also there is no reference to right to work State laws,
+there is no reference to Beck financial core membership rights,
+and the last two things that I find most troubling is that the
+proposed rule that would relate to the posting of the notice
+actually creates a new unfair labor practice. We have been
+calling it section 8(a)(6), a new one for labor practice that
+could also result in an adverse inference in certain types of
+cases against the employer if the notice hasn't been posted.
+ And also if there is a failure to provide the notice, the
+Board's proposed rule indicates that there would be a tolling,
+basically an overriding of the statute of limitations.
+ And the last two things that I have mentioned really
+represent changes, substantive changes in explicit provisions
+of the Federal Act.
+ Mrs. Roby. Thank you so much, Mr. Chairman. I yield back.
+ Chairman Roe. Thank you. Mr. Kildee.
+ Mr. Kildee. Thank you, Mr. Chairman. Ms. Estlund, has the
+authority of the NLRB to issue substantive regulations been
+upheld by the courts? Your testimony said that the courts have
+actually encouraged NLRB to use more rulemaking.
+ Could you tell us what why this is so?
+ Ms. Estlund. Yes, certainly. Commentators across the
+spectrum have encouraged the Board to make greater use of its
+rulemaking powers. The court has specifically upheld its
+rulemaking powers. And I think this particular rule, I am kind
+of amazed that it has become controversial at all. The National
+Labor Relations Act is the only statute as to which there isn't
+already a requirement that employers post notices informing
+workers of their rights.
+ Now, of course the issue of the content of the posters is
+something that will be discussed in the rulemaking proceeding
+but the contents that has been proposed seems to me quite a
+fair, balanced, and concise description of what employees'
+rights are. Some of the particular omissions that Mr.
+Miscimarra referred to are only relevant once there is a union
+in place.
+ It might be actually more important, given the very low
+percentage of workers who are involved in unions, to alert
+workers to their rights in general. All workers have rights
+under the National Labor Relations Act.
+ So I think it is an excellent example of the Board's power
+under section 6 of the Act to pass rules in order to further
+the purposes of the Act.
+ Mr. Kildee. Thank you. Historically, the National Labor
+Relations Board has operated under both Democratic and
+Republican administrations, it was passed in 1935 under the
+Wagner Act, it was operated under both those administrations to
+uphold Federal law.
+ Professor Estlund, how have the recent decisions of the
+Board been consistent with rulings from previous
+administrations?
+ Ms. Estlund. Well, the decisions that I have seen, very few
+of them have been, have departed remotely from prior precedent.
+They have simply carried forward the mission of the Board. None
+has squarely overruled precedent as best I can tell. I am quite
+sure about that. They have shown a renewed focus on enforcing
+employees' rights under the Act. That is in the nature of the
+process in which different administrations bring different
+focus to their approach to the Act. But they seem to me to be
+very careful, very meticulous, and very consistent with
+existing board precedent, and in some cases, the reception that
+the Board has gotten from the courts to some of its decisions
+and efforts by the past general counsel. So I think it has been
+actually a model of the Board's role in enforcing its statutory
+authority.
+ Mr. Kildee. Can you discuss with us how the National Labor
+Relations Board has operated in a more open and transparent
+process compared to previous years?
+ Ms. Estlund. Well, I think the effort to use rulemaking is
+one example of that. Rulemaking is a model of open and
+relatively transparent decision making. They may or may not do
+that in future cases, we don't know. But I think the invitation
+of briefs in several cases is a very good example of something
+that given the Board's authority to make policy judgments in
+the course of deciding cases, it is a good idea to solicit a
+wide range of views when there are those policy issues raised.
+ Now we shouldn't prejudge the Board's decisions on those
+policy issues. All of the rather alarmist discussion recently
+about what might happen down the line, we have to remember the
+Board hasn't even ruled in these cases yet, and if it does, its
+rulings will be subject to judicial review.
+ Mr. Kildee. And the changes in different views that we
+receive reflected in NLRB, these are found in every agency, are
+they not? These are not unique, these are people or even in
+courts, you find permutations.
+ Ms. Estlund. Yes. And given the fact that Congress has not
+made any significant amendments to the core of the Act since
+1959, one can make an argument for 1947 on that score, the
+Board's policy-making authority and efforts to keep the Board
+law up to date to the extent that the statute allows that, is
+really important.
+ The Board was set up to reflect to some extent changing
+political determinations by the people. And so it has had some
+oscillation back and forth. Nothing that this board has done or
+proposed to do seems to go beyond the historic modest back and
+forth in a narrow range of issues.
+ Mr. Kildee. 1947 was the Taft Hartley law.
+ Ms. Estlund. Yes, that was a big change. In 1959 there was
+some significant but not huge changes. Since then, the changes
+have been relatively minor other than the health care
+amendments were significant for the health care industry but
+not the Board.
+ Mr. Kildee. Thank you very much for your testimony.
+ Chairman Roe. Thank you. Mr. Thompson.
+ Mr. Thompson. Thank you, Mr. Chairman. Thanks to the panel
+for bringing your expertise on this issue today.
+ Mr. Miscimarra, I am looking at something that the Board
+did on August 27, 2010 when they requested briefs on the Dana
+Corporation, commonly referred to as the Dana/Metaldyne and
+Dana/Metaldyne the Board modified its recognition bar
+principles giving employees and rival unions 45 days in which
+to demand a secret ballot election if their employer
+voluntarily recognized a union.
+ Now, according to the NLRB, as of August 18, 2010, the NLRB
+has received 1,111 requests for voluntary recognition notices,
+85 election petitions were filed and 54 elections were
+conducted. In 15 of those elections, employees voted against
+voluntary recognized unions, including two elections in which a
+petitioning union was selected over the recognized union.
+ And here is my question. That was kind of background.
+ If the NLRB reverses Dana/Metaldyne, what recourse would
+employees have if their employers agreed to recognize a union
+based on authorization cards?
+ Mr. Miscimarra. In your question is really the answer,
+Congressman. What is happening in these cases is an employer
+has made the decision in extending voluntary recognition to the
+union and employees have not had an opportunity to have what
+governs the political process in this country, secret ballot
+election. And so in the situation that you have just described,
+you have an employer that makes the decision to extend
+voluntary recognition, and we have already seen a significant
+number of employees subsequently pursuant to the opportunity
+afforded them in Dana/Metaldyne to turn around after they
+receive a notice of voluntary recognition, they then have 45
+days in order to, they have a window in which to submit to file
+a decertification petition.
+ If that window is taken away from them, then you are in a
+situation where the employer has made a decision to extend
+recognition to the union, you have employees, at least a
+showing of 30 percent of employees, who have expressed an
+interest in decertification, and they don't have the
+opportunity, the decertification petition will be dismissed if
+the precedent established by Dana/Metaldyne goes away.
+ Ms. Estlund. If I could just answer the Congressman's
+question directly, after 1 year, if there isn't a collective
+bargaining agreement, the workers can always vote out the
+union, and I would like to point out the numbers, 99 percent of
+the cases in which a Dana notice was requested have resulted in
+no change. It has been a very, very tiny percentage of workers
+that, in which this made any difference.
+ Mr. King. If I may, Congressman, that is exactly the point.
+Why are we reconsidering this well-thought-out, and, well-
+established principle? This board has asked for briefs on this
+issue. It has given every indication it is going to overturn
+this basic right of employees to vote on whether they want this
+particular arrangement to go forward or not. That is one of the
+reasons why we are here today. Why are we even spending time
+revisiting that issue? Your question is an excellent one.
+ Mr. Thompson. My second question is kind of an issue that
+you had raised, Mr. King, before and I wanted to get some
+follow-up from you and Mr. Miscimarra, and it had to do with
+the NLRA provide that it is unlawful for a union to quote
+threaten, coerce or restrain a secondary employer not directly
+involved in a primary labor dispute with the objective of
+forcing or requiring any person to cease doing business with
+any other person.
+ However, in this specific incident I point to, is in the
+United Brotherhood of Carpenters and Joiners of America, local
+1506, the Board held that the unions may display large
+stationary banners including, and you describe mock coffins and
+skeletons also was used in another situation, inflatable rats
+in front of a neutral employer's business.
+ And in light of this holding, what is left of the
+prohibition against secondary boycotts? And frankly, how does
+this affect employers?
+ Mr. King. Mr. Thompson, I think in large part, I would
+disagree with my colleague. The Board has really read out of
+the statute any secondary activity. There are some limits, I
+would concede that.
+ Another important point here is the Board not focusing on
+the truthfulness or lack thereof of some of the statements that
+go with the inflatable rat, inflatable cockroach, the coffins,
+the skeletons. In fact, in the jobs issue, this type of
+activity is designed to put businesses on point if they don't
+go to the direction that the labor union in question wants them
+to go to, they are out of business. It is pressure. It is just
+pressure. But they are secondary. They are not even involved in
+the dispute in the first instance.
+ Mr. Miscimarra. If I could add to that, Congressman, what
+is happening in these cases, we are using the term ``neutral,''
+we are talking about union pressure and including these large
+banners, 4-foot by 20-foot banners that are being set up in
+front of an employer with whom the union has no dispute. So
+this is all secondary pressure that is directed towards
+employers that don't even have a dispute with the union except
+the union wants to pressure somebody else.
+ And if you were a union representative after these cases
+have been issued, and if you have a dispute with me, I do
+business with eight other people, and you want to pressure me
+by setting up big displays and banners at eight different
+places for eight different companies who themselves don't have
+any dispute with a union, your choice is to go up with small
+picket signs and have people walk around in front of the eight
+different establishments, and that would be declared unlawful,
+or you could get a 20-foot banner, put it up at eight different
+establishments, and that would be declared lawful.
+ I think that goes against the grain of provisions in the
+act that weren't simply added to the act in 1947. The Congress
+two separate times, in 1947 and 1959, devoted significant
+attention to the act's secondary boycott provisions, and I
+think these banner cases really do violence to the scheme----
+ Chairman Roe. Commissioner, can you wrap that up?
+ Mr. Miscimarra. Yes, thank you. That has been long
+established.
+ Mr. Thompson. Thank you, Mr. Chairman.
+ Chairman Roe. I would appreciate it if you stay to the 5-
+minute, Mr. Holt.
+ Mr. Holt. Thank you, Chairman Roe.
+ I would like to direct some questions to Ms. Estlund.
+Actually, first of all, since the ranking member began our
+attention to our alumni allegiances, I would like to point out
+that I was a graduate student at New York University, relevant
+to the discussion here, although my time there preceded any
+litigation, and I was not in the law school, rather in the
+physics department.
+ I would also like to point out hanging on the wall over
+here the portrait of Mary Norton, chairman of this committee in
+the 1930s, who oversaw the passage of the NLRA, the Fair Labor
+Standards Act and other such important legislation.
+ Ms. Estlund, you commented that the rulings, meaning both
+the adjudications as well as the rulemaking, in the last couple
+of years or last year hasn't really broken new ground, and I
+think--I do want to make sure that I am clear that you say that
+the law is really quite stable.
+ And I wanted to talk about the posting of employee rights.
+As you understand it, this is not breaking new ground either in
+requiring posting or in what is being posted. For example, it
+says under the NLRA, you, whether you are a union member or
+not, can form, join or assist a union, bargain collectively,
+discuss the terms of your employment with coworkers, take
+action to improve your working conditions, or choose not to do
+any of these activities.
+ Your employer may not prohibit you from soliciting for a
+union during break time, question you about your union support,
+fire or demote you in connection with that, prohibit you from
+wearing T-shirts, spy on you for peaceful activities; and the
+union may not refuse to process a grievance if you have
+criticized union officials not being a member of the union, and
+so forth.
+ Am I clear that this is pretty standard established
+language?
+ Ms. Estlund. It seems to me to be clear and balanced and
+about as much information as you could get on a poster that
+workers are supposed to be able to read and understand. If
+there are particular problems, this is exactly the kind of
+thing that people can comment on in rulemaking, but it strikes
+me as a very balanced presentation of the law.
+ Mr. Holt. What is the importance of having something like
+this in light of the 6-month statute of limitation on seeking
+enforcement of one's rights, also in light of workers' level of
+knowledge about their rights?
+ Could you say something about what has--you know, from
+opinion polling or other sources, what workers know about their
+rights, and what we know about employers' statements or
+misstatements about workers' rights?
+ Ms. Estlund. Well, there is a lot of research on workers'
+misunderstanding and lack of understanding of their rights. I,
+myself, with my entering employment law students have often
+conducted a little poll to see what they know about the law.
+And the one thing they are most wrong about, of all the
+employment issues that might arise, is rights under the NLRA.
+ And, in fact, there is a lot of evidence that employers,
+especially small employers, don't know about rights under the
+NLRA, especially with respect to nonunion workers.
+ So every once in a while there is a--you know, an alarmist
+article from management lawyers saying, employers, be aware,
+your employees may have rights even if there is no union
+organizing on the scene. And it is clear that many employers
+don't know what the law is under the National Labor Relations
+Act.
+ Mr. Holt. But that has been the law since 1938; has it not?
+ Ms. Estlund. That has been the law since it was passed in
+1935.
+ Mr. Holt. 1935, I beg your pardon.
+ Ms. Estlund. I think it is kind of an embarrassment that
+the only significant Federal employment statute that we have
+that doesn't include--it doesn't have to be presented to
+employees so that they recognize their rights is the National
+Labor Relations Act. And as you point out, given the unusually
+short statute of limitations period that workers have to file
+complaints under the NLRA, that is particularly concerning.
+ Mr. Holt. Now the, OSHA, Fair Labor Standards Act and
+others require postings. Is there anything peculiar to the NLRA
+that would forbid postings, or is there anything about the
+structure of the law that would make postings unsuitable?
+ Ms. Estlund. Not at all. In some of the statutes, the
+notice posting is explicit, but under the Fair Labor Standards
+Act, for example, which is also one of the early New Deal
+statutes, it was put into effect by regulation first, I
+believe, in 1949.
+ So this has become standard practically because it is so
+obviously important in order to enforce rights under these
+statutes that workers be made aware of their rights.
+ Mr. Holt. Thank you. Thank you, Mr. Chairman.
+ Chairman Roe. Thank you.
+ Dr. DesJarlais.
+ Mr. DesJarlais. Thank you, Chairman Roe, and thank you,
+panel, for your thoughtful testimony today.
+ Mr. Miscimarra, I would like to start with you mainly
+because I empathize with a difficult last name.
+ Mr. Miscimarra. Yes.
+ Mr. DesJarlais. The Board has issued a number of
+significant decisions governing employer issues ranging from
+employer speech to NLRB jurisdiction. Looking forward, what can
+we expect from the Board in the next 10 months?
+ Mr. Miscimarra. Well, you know, I brought my crystal ball
+with me today, and that is a very difficult question to answer.
+I think the one point that Professor Estlund made is that the
+number of the things that we have discussed today involve
+rulemaking and pending decisions where there has not yet been a
+resolution.
+ But, you know, I think the most reliable indication of what
+the current Board may do prospectively is to look backwards.
+And there are a couple of unique things that relate to the
+context which surrounds many of these things right now. You
+know, first of all, there has been--as most people know, there
+is a significant backlog of cases that confronted the Board
+because there was a 2-year period where the Board was down to
+two members. And when with the two members were Chairman--
+excuse me, Peter Schaumber and Chairman Liebman, they didn't
+resolve controversial cases, so those really were backed up to
+the Board.
+ And then the other thing that I think is one of the
+reasons, from a contextual perspective, that there is some
+concern right now is looking backwards, there are dozens, three
+dozen or so, decisions that were issued during the Bush
+administration where all of the Democratic Board members
+dissented, all of them, and many of those are very important
+decisions. And if the current members who are in the majority--
+the Democrats are in the majority--decide those issues the same
+way in new cases, then we could be looking at very significant
+changes in the direction and focus of the act that would be
+different from what at least I have experienced in the 28 years
+I have been practicing.
+ Mr. DesJarlais. Thank you.
+ Mr. Rosenfeld----
+ Mr. Rosenfeld. Yes, sir.
+ Mr. DesJarlais. The acting general counsel directed regents
+to consider using uncommon remedies with greater frequency,
+including notice readings, giving union names and addresses of
+employees, and access to company bulletin boards.
+ When you held this position, did you have a policy with
+regard to uncommon remedies; and, in follow-up, are these
+remedies effective, and when should they be used?
+ Mr. Rosenfeld. Well, our policy with these remedies
+basically was that these remedies are extraordinary remedies
+and only to be used in cases where extraordinary remedies were
+called for. The difficulty with the new approach is what
+heretofore have been extraordinary remedies will become
+routine, and it will, at least according to what has been
+suggested in the memorandum--it would require an employer, for
+example, to open up his workplace to an outside third-party
+union organizer and allow that union organizer perhaps to give
+speeches on the employer's premises and on and on. So these
+remedies are extraordinary.
+ And though we have used these remedies, some of these
+remedies, in the past, we have only done it in cases--I hate to
+mention a recidivist company, but J.P. Stevens, for example, in
+the 1980s, okay, was considered to be a recidivist employer,
+well before my time. But these types of remedies were used with
+that type of situation.
+ Ms. Estlund. Could I just point out that the current memo
+does suggest that those sorts of remedies that Mr. Rosenfeld
+just mentioned would be for pretty extraordinary cases, and the
+Board has to pass these rulings through the court. The courts
+will decide whether it is an appropriate case.
+ Mr. DesJarlais. Thank you.
+ Mr. Chairman, I yield back my time.
+ Chairman Roe. Thank you.
+ Mr. Hinojosa.
+ Mr. Hinojosa. Thank you, Chairman Roe, and thank you,
+Ranking Member Andrews.
+ In the current economic recession, I believe that it is
+vitally important that our Nation protect the rights of
+American workers. It is my opinion that to achieve this goal,
+the NLRB must be allowed to do its job effectively.
+ I would like to ask two or three questions of Professor
+Estlund.
+ The NLRB proposed a regulation to require posting of
+notices of employees' rights under its rulemaking authority in
+section 6 of the NLRA, and we have been discussing that, but I
+want some clarification. Is this an overreach by the NLRB?
+ Ms. Estlund. In my opinion, it is very long overdue. I
+think, again, it could hardly be surprising to propose that for
+workers' rights under the act that Congress has put in place to
+be enforced, workers need to know about their rights under the
+law, and we really have very good reason to believe that
+workers are quite ignorant of their rights under the National
+Labor Relations Act.
+ Mr. King. If I may, Congressman, I would agree. I think
+reasonable people can differ as to what the notice says. The
+dispute is what the notice says, how it is articulated, how
+broad it is, whether employees have the right, as my panelists
+said, to decide whether they wish to join or not to join, and
+whether they wish to vote in or vote out, whether they wish to
+decertify, if you will, and whether they wish to pay dues or
+not to pay dues. In right-to-work States the notice is lacking
+considerably.
+ So it is the content, by and large, where I think we are
+having our differences.
+ Mr. Hinojosa. Thank you, Dr. King.
+ Professor Estlund, from your bio, I can see that you have a
+very impressive background in labor law. In your expert
+opinion, are the current policies for the decisions reached by
+the NLRB well within the bounds of our Federal law?
+ Ms. Estlund. Yes, I think they clearly are, and I actually
+haven't heard anything today from any of the witnesses that
+suggests that they have really gone beyond their statutory
+authority.
+ Take, for example, the stationary banner case that has
+gotten a lot of attention. At least five Federal courts have
+refused to issue injunctions against stationary bannering,
+somewhat similar to this, stationary displays, on free speech
+grounds or on statutory grounds that are informed by unions'
+free speech rights.
+ Nonpicketing publicity, the Supreme Court has said in a
+couple of decisions, is within the First Amendment. And so it
+seems to me responsible and appropriate for the Board to
+respond to that, again, without overruling any of its prior
+decisions, by recognizing that these stationary displays,
+without any patrolling, without any effect of causing a work
+stoppage or any such thing, are within the free speech rights
+and within the room that the statute affords for this kind of
+publicity.
+ Mr. Andrews. Would the gentleman yield, Mr. Hinojosa?
+ Mr. Hinojosa. Yes, I will yield.
+ Mr. Andrews. If I could just follow up on one of your
+questions of Mr. King. If I understand your answer about the
+rulemaking that if the content of the poster were satisfactory,
+you have no objection to the actual rulemaking itself?
+ Mr. King. Rulemaking has a place.
+ Mr. Andrews. You think it has a place here?
+ Mr. King. Yes.
+ Mr. Andrews. Thank you.
+ I would yield back to Mr. Hinojosa.
+ Mr. Hinojosa. Thank you.
+ The Board has solicited amicus briefs in five pending cases
+before it from potential interested parties. Do you think,
+Professor Estlund, that it is better for the Board to have
+increased openness and transparency and invite multiple
+perspectives before deciding important cases?
+ Ms. Estlund. I think that would be--that would obviously be
+a move forward. I think the past Board, for example, exercised
+its authority under the statute. It overruled a very large
+number of precedents, including some precedents that had
+existed for decades. In some of those cases, they didn't take
+the opportunity to solicit a full range of views.
+ So I think this Board, having solicited views in a handful
+of cases--and we don't know what direction they are going to go
+on those cases--that is only a good thing.
+ Mr. King. If I may, Congressman, per the ranking member's
+questions, rulemaking, as opposed to just filing amicus briefs,
+is certainly preferable. More rights, more protections
+proceeding in that manner. The filing of the amicus brief,
+frankly, has been given a lot of attention by the Board. While
+it may be important, it is not a good substitute for the
+protections and procedures of the merit----
+ Mr. Hinojosa. It wasn't meant for it to be a substitute. It
+was prior to actually having hearings and so forth so that they
+could get a better understanding of their case.
+ It looks like I have run out of time. I yield back.
+ Chairman Roe. I thank the gentleman.
+ Mrs. Noem.
+ Mrs. Noem. Thank you, Mr. Chairman.
+ I am from the State of South Dakota, which obviously is a
+wonderful State, but very cold this time of year. But we have
+our right-to-work State, and we are also one of the four States
+that recently passed the constitutional amendment that would
+protect a worker's right to a secret-ballot election and a
+union election. So these conversations have been going on in
+our State over the last year or 2 and have been very important
+to us, and we have a community and a population that is very
+well aware and concerned with these issues.
+ So I appreciate the discussion that all the witnesses have
+brought to the table today. Actually when it did pass the
+legislature. I served there in that body as well.
+ So I know we have discussed the idea of preemption, but my
+question is specifically for Mr. Rosenfeld. You know, in your
+previous role, I think you have some insight that would be very
+good for our subcommittee, and I would like to ask you your
+opinion on does the NLRA preempt State anti-card-check
+legislation, constitutional amendments, and what would have to
+be done to protect an employee's right to an election free from
+coercion, from intimidation and from irregularities?
+ Could you tell me--give me your personal opinion on that?
+What would have to be done to protect employees in those
+situations and those elections, and what specific insight do
+you have considering your previous role?
+ Mr. Rosenfeld. Well, you know, we have discussed here
+briefly the benefits of the Secret Ballot Protection Act, okay,
+passed by Congress, Federal Congress.
+ But employees are protected. They are protected not
+necessarily in terms of what process is used, but they are
+protected by the act itself and by the National Labor Relations
+Board, and that is the purpose of the Board is to administer
+the act. It is not necessarily to set labor policy. You all set
+labor policy.
+ Therefore, if an employee--if a petition is filed for an
+election, for example, the Board has been very vigilant in
+making sure that laboratory conditions are adhered to and
+during the critical period certain conduct which is
+impermissible is remedied.
+ The problem I have with your question, quite frankly, is I
+don't feel competent to opine specifically on the merits of
+whether or not what South Dakota has done, okay, violates the
+Constitution.
+ But what I said before is that I am pleased to see that the
+Board, if it believes that it is preempted, that conduct is
+preempted, I am pleased to see that the Board has gone forward
+this quickly to raise those issues. And then what I said before
+was I hope they do the same thing in other types of issues,
+because over the last 10 or 12 or 15 years, there has been an
+attempt by organized labor to Balkanize the Board, to get back
+to prior to 1935, because it is easier to get States and
+municipalities and localities to pass certain sorts of
+neutrality provisions, for example, to muffle an employer's
+voice.
+ When I was general counsel, we tried to be very vigorous in
+opposing those sorts of things. I mentioned before that in one
+of the hallmark cases, which was decided as Chamber of Commerce
+v. Brown, for the Board to authorize me to go forward, there
+was still a dissent, and one of the dissents was by current
+Chairman Liebman.
+ And so I hope that if that type of case were to come up
+again, and the general counsel were wise enough to seek
+authorization, that Chairman Liebman would vote to authorize
+going forward, not necessarily in your particular case, but in
+other types of cases.
+ Ms. Estlund. Could I just add on, 15 seconds, there are
+hard cases under preemption, and there are easy cases under
+preemption. The Brown case was a hard case because obviously
+States have some power to control the use of their own funds
+and make sure they don't get misused. And so that was a hard
+case. That is why it went to the Supreme Court, and the court
+below had reached a different decision.
+ In this case Mr. Rosenfeld has declined to opine, but I
+feel comfortable opining. This is a pretty easy case. Congress
+has the power to change the law. But under the law as it
+exists, these State enactments are preempted.
+ Mr. Rosenfeld. If I would argue just quickly that there are
+hard cases and easy cases, but when you get a 7-2 Supreme Court
+decision saying something is preempted, that is darn close to
+being a slam dunk.
+ Mr. King. If I may, the California case was a State
+statute. We are talking about a constitutional amendment. Put
+aside where we may be in the law. As a matter of policy, does
+it make sense for a regulatory agency, whether it be the NLRB
+or any other agency, to tell a State where an overwhelming
+number of their voters have passed a proposition, have passed a
+constitutional amendment, that it can't, in fact, go into
+effect?
+ I am glad to see that the acting general counsel has
+withdrawn his initial letter. Perhaps there will be some
+thoughtful dialogue. But this does pose policy issues that need
+to be thought out.
+ Chairman Roe. Thank you.
+ Mr. Tierney.
+ Mr. Tierney. Thank you, Mr. Chairman.
+ Mr. Chairman, I can't help but think that Mr. King was
+mentioning he thought that the Board was taking a lot of its
+time up with things it probably shouldn't be considering. And I
+am looking at what we are doing here today, how many unemployed
+Americans are sitting home watching this hearing when we are
+sitting here doing things that really don't make a lot of
+sense.
+ This is an extraordinary gripe session, I guess, for the
+employers' labor bar. They are complaining about First
+Amendment rights and have clearly decided it is a free speech
+issue, but we are going to complain about it today anyway. The
+apparently unbelievable burden of actually e-mailing a notice
+out, that must be working people up to a real sweat.
+ The decisions of how work--that workers can wear a T-shirt
+with an insignia on it, I am glad we are spending a lot of time
+on that one. And the fact that people have got amicus briefs to
+help them inform a decision, all these pressing matters, you
+know, certainly aren't helping anybody in this country get a
+job, or get back to work, or even get a wage that is decent and
+sustain their families.
+ But one issue that we talked about, I would like to talk a
+little bit, is one of the witnesses questioned whether it is
+uncommon or bad policy to overturn precedents with recess
+appointments, well, when you have fewer than five Senate-
+confirmed Board members. The disturbing part about that
+question, because we have a totally dysfunctional Senate going
+on where certain obstructionists could, I suppose, by not ever
+confirming or letting them----
+ Mr. Kline. I ask unanimous consent that we agree to that.
+ Mr. Tierney. No objection.
+ I mean, they could just do as they were doing and obstruct,
+and you would never get five members on the Board, and
+therefore you would basically freeze out the Board's action on
+that.
+ So I want to just question the professor here a second.
+Isn't it a case that Board members who were seated through
+Presidential recess appointment have the same authority as ones
+who were confirmed by the Senate?
+ Ms. Estlund. They do.
+ Mr. Tierney. All right. I mean, President Eisenhower
+appointed William Brennan to the bench, Earl Warren to the
+bench, Potter Stewart to the bench by recess appointments.
+Their decisions were as effective as any judge that was on the
+Supreme Court that was appointed and approved by the Senate; is
+that right?
+ Ms. Estlund. Yes.
+ Mr. Tierney. All right. So, it doesn't--I don't understand
+quite why we are spending a lot of time worrying about recess
+appointments. It is still the reverse of past precedent. They
+are still requiring three votes, right?
+ Ms. Estlund. That is right.
+ Mr. Tierney. On that. So do you see any notion of this
+being a dangerous thing that is going on here?
+ Ms. Estlund. I don't. I think the law is pretty clear.
+Section 3(b) of the act says a vacancy in the Board shall not
+impair the right of the remaining members to exercise all the
+powers of the Board.
+ The practice has been not to overrule precedent when there
+are not three votes, at least three votes, to do so, and that--
+and nothing the Board has done has departed from that
+traditional practice. So the Board has many times voted to
+reverse prior decisions in the rare cases when it has had only
+three members, as long as all three of them went along with
+that.
+ Mr. Tierney. Thank you for clearing that up. I yield back.
+ Chairman Roe. I thank the gentleman.
+ Mr. Rokita.
+ Mr. Rokita. Thank you, Mr. Chairman. I want to thank all
+the witnesses as well.
+ Just to follow up to the last line of questioning, I would
+make a comment for the record that this is all about jobs. When
+you are talking about businesses that are trying to grow them
+and manage their internal affairs--we are talking about unions,
+for that matter, trying to do the same thing--not having
+certainty about these kinds of things is very detrimental,
+especially when you are talking about an activist Board like,
+in my opinion, we are talking about.
+ A couple of questions. The Board has issued a number of
+significant decisions. This one is from Mr. King. It has
+requested briefs on a wide array of controversial issues and
+proposed substantive rulemaking that will affect almost all
+private employers. At the same time we have an acting general
+counsel-issued memoranda addressing remedies during union
+organizing, the scope of Board deference to a contract
+arbitration award, and the use of default language in informal
+compliance settlement agreements. How has this active agenda
+affected your dealings with regional NLRB offices and
+employees? Is there a general sense that regional employees are
+now acting more aggressively or not, or have they changed their
+behavior?
+ Mr. King. Congressman, there is no question, and this is
+based on personal practice, experience throughout the country,
+that each and every regional office I have dealt with has felt
+great pressure from Washington to be more aggressive. That
+requires expenditure of more agency resources, which could be
+better utilized elsewhere; and, second, it requires the
+employer, frankly, to retain counsel if it can afford counsel
+and causes the employer to spend more resources.
+ With respect to jobs, how much regulation is too much? What
+we are talking about here is a full-out approach by the Office
+of General Counsel and the Board to change the law in a number
+of areas. I would differ with my colleague in that we have
+already had reversals with precedent, and what a lot of
+employers tell me is, Mr. King, I can't understand why the law
+keeps going back and forth and back and forth. How are we
+supposed to follow some national labor policy? How are we
+supposed to comply with the law? And we have this oscillation
+back and forth.
+ I think we would agree that it has been too much. And it
+does get to the point of why don't we get full five confirmed
+Board members as a matter of principle? Put aside whether we
+have had three in the past or four in the past voting, and go
+about it in a more thoughtful way, in a more uniform way.
+ Mr. Rokita. Thank you, Mr. King.
+ Mr. Miscimarra, in your practice, and considering the last
+line of questioning, what is the potential cost to all these
+different changes to employers? What have your clients seen?
+Any particular data that you can provide?
+ Mr. Miscimarra. Well, I would echo the sentiments that were
+just expressed by Mr. King. You know, we are talking here
+about, in the case of general counsel initiatives, the general
+counsel plays a prosecutorial role and determines whether
+employers, where there hasn't even been an adjudged violation,
+are going to be in 3 to 5 years of litigation, frequently
+because the Board prosecutes complaints.
+ An employer ends up being the only party in litigation
+before the Board that is responsible for attorneys' fees, and
+the biggest problem that I have seen and the companies that I
+work with, every day, end up talking about how can we make
+decisions because of the process that is associated with the
+Board, and much of it is unavoidable.
+ Mr. Rokita. The uncertainty.
+ Mr. Miscimarra. Yes. It takes 3 to 5 years in order for
+Board cases to get to their conclusion, and people are making
+business decisions right now and hiring decisions right now
+that are heavily influenced by uncertainty about many of the
+issues we have talked about today.
+ Mr. Rokita. Thank you very much.
+ This is a one-word answer for all four of you. I will set
+the question up by saying I am holding up a proposed neutrality
+agreement that was offered one of the employers in my district
+after he was called and visited by the regional NLRB office. A
+neutrality agreement, for the Record, of course, everyone here
+probably knows, contains language that not only makes the
+employer stay neutral as to any statements they made, but also
+got rid of the secret ballot.
+ The employer claims that there was a good cop-bad cop
+situation going on between the union and the NLRB. Is he
+reasonable in that accusation?
+ Mr. Miscimarra. I haven't experienced anything like that in
+my dealings with the Board.
+ Mr. Rokita. Thank you.
+ Mr. Rosenfeld.
+ Mr. Rosenfeld. Possibly. I mean, I would have to see, you
+know, the facts to be able to make that determination. It is a
+possibility. You are dealing with, you know, 2,000 employees of
+the NLRB, and you are dealing with whomever in the union, and
+there could be--I can't say, categorically.
+ Mr. Rokita. Is that a possibly? Thank you very much.
+ Ms. Estlund.
+ Ms. Estlund. I would have to know more about the facts, for
+example, whether this was a situation where the employer had a
+long record of violations. Without knowing----
+ Mr. Rokita. No, he has got no violations. He has won every
+one of his cases.
+ Ms. Estlund. It sounds very unusual.
+ Mr. Rokita. Mr. King.
+ Mr. King. Assuming it did occur, I would hope and think the
+acting general counsel would stop it immediately.
+ Mr. Rokita. Thank you.
+ Mr. Rosenfeld. Yes, if I may comment on that, that is
+exactly right. If there is a problem of that nature, somebody
+should get on the phone immediately with the General Counsel's
+Office.
+ Mr. Rokita. I will recommend that. Thank you.
+ Chairman Roe. Thank you.
+ Mr. Scott.
+ Mr. Scott. Thank you, and I thank our witnesses for being
+with us.
+ Mr. King you have suggested several times the fact that
+these four States have passed constitutional amendments makes
+some difference in whether or not the laws ought to be
+preempted. Is it true that if it is a constitutional amendment,
+it is more protected from preemption than if it is a statute,
+or Executive Order, or regulatory rulemaking or any other way
+you can make State law, or are all State laws preempted by
+Federal law, however they come about?
+ Mr. King. Mr. Scott, in any of those scenarios, preemption
+is a factor.
+ Mr. Scott. Whether it is a constitutional amendment or not.
+ Mr. King. A constitutional amendment would have scrutiny
+just like a State statute, perhaps a different type of
+scrutiny.
+ Mr. Scott. And if it is clearly inconsistent with Federal
+law, then Federal law would preempt even if it is a
+constitutional amendment; is that right?
+ Mr. King. The Supreme Court has spoken to that issue, yes.
+ Mr. Scott. And what did the Supreme Court say?
+ Mr. King. The Supreme Court, at least in the Brown case,
+said that we have a uniform set of Federal labor laws, and that
+this body and the other body, when it has passed legislation in
+that area, preempts as a general rule State and local
+initiatives.
+ Mr. Scott. And if the NLRA allows voluntary recognition,
+and the State Constitution prohibits voluntary recognition,
+would not the State--would not the Federal law preempt the
+State Constitution?
+ Mr. King. It may. You know, Mr. Scott, what is really
+troubling me here is the State of Oregon, for example, right
+now, has enacted a statute that won't permit, apparently,
+employers to have so-called required meetings with their
+employees. I haven't heard the National Labor Relations Board
+of the Office of General Counsel say one word about that.
+ Mr. Scott. Well, my question was just because it is a
+State's constitutional amendment doesn't make any difference.
+ Mr. King. I understand.
+ Mr. Scott. I think you have acknowledged that. We have
+heard in another testimony that seemed to imply that an
+employer could pick any union that it wanted without regard to
+the workers' desires.
+ Ms. Estlund, when with the employer voluntarily recognizes
+a union, do they pick this union out of the blue, or how does
+the union come to the employers' attention?
+ Ms. Estlund. No, it is very clear that employers are only
+allowed to recognize and collectively bargain with the union
+that represents a majority of the employees. Now, in the recent
+Dana II case, a decision that was welcomed by many employers,
+the Board said the union and the employer can have some
+discussions to put out a framework so that the employees, when
+they are making that choice whether to select a union, will
+know a little bit about what they might be getting into. But
+that was not recognition, and it was not collective bargaining.
+That requires majority support from the employees.
+ Mr. Scott. So when the employer recognizes a union, it is a
+union that has demonstrated majority support within the
+bargaining unit?
+ Ms. Estlund. That is right.
+ Mr. Scott. It is my understanding that about over 2,200
+employees were reinstated because they were victims of unfair
+labor practices. Are you familiar with many of those cases, Ms.
+Estlund?
+ Ms. Estlund. Yes. And I was struck by the rhetoric about
+the current Board and general counsel's aggressive approach to
+the law. Yes, there has been a more assertive approach to
+enforces employees' rights, but aggressive is exactly the term
+that has been used repeatedly by scholars to describe the very
+typical employer approach when they learn that one or more of
+their employees may be interested in forming a union.
+ This is a key right. The central right in the act is the
+right of employees to decide whether or not to join a union.
+That right requires, yes, aggressive enforcement, given the
+aggressive response that employees very often meet when they
+attempt to organize a union.
+ Mr. Scott. And can you describe some of these cases so we
+know what we are talking about?
+ Ms. Estlund. Well, without describing any particular cases,
+discriminatory discharges of union activists have become quite
+common. Threats of plant closing, threats of job loss, these
+kinds of threats that the Board and the Supreme Court have
+repeatedly condemned, have become almost routine. In fact,
+there is a whole industry of management consultants that advise
+employers how to hold captive audience meetings, repeated one-
+on-one meetings between employees and their supervisors to
+impress the views, the employers' views, upon the employees.
+ The comprehensiveness and aggressiveness of these campaigns
+has become pretty common knowledge, I think, among--I am not
+saying all employers do this, and not all employers violate the
+law, but it has become all too common, and it does require a
+very assertive remedial response, given the rights under the
+act.
+ Mr. King. Mr. Scott, I only would add that I know of no
+employer that actively goes out and violates the law. I don't
+know of anyone that we represent that goes out and discharges
+union activists. To the contrary, they are protected in their
+activities under the statute, as they should be.
+ Chairman Roe. I thank the gentleman.
+ Mr. Barletta.
+ Mr. Barletta. Thank you, Mr. Chairman, and I would like to
+thank the Board, the panel for coming in and taking your time
+today.
+ To follow up on an earlier question dealing with uncommon
+remedies, my question is to Mr. Rosenfeld. If a union decides
+to use one of these uncommon remedies proposed by Mr. Solomon,
+mainly giving unions the names and addresses of employees, what
+protections do the employees have, and shouldn't this be a
+concern for the privacy of those employees?
+ Mr. Rosenfeld. Under current Board policy there is
+something called an excelsior list, which has to be provided by
+the employer, incorporating names and addresses of the unit
+employees, I think, 7 days before an election. Is that correct?
+ The reason why this list is provided only 7 days before an
+election is basically to protect the privacy and sanctity of
+the employees. Organized labor, unions, can go to an employee's
+home--of course, an employer can't do that. They can go to
+wherever an employee may be having a drink after work.
+ The only protection would be for an employee, okay, to
+claim that he was coerced by union activity. The problem with
+that, of course, is that these are the fellows you work next
+to, day in and day out. It is a very difficult situation to be
+put in.
+ Ms. Estlund. It is worth mentioning that this name--that
+the names and addresses would only be made available. This is
+one of the remedies that would be made available in cases where
+employers have already violated the law and shown that they are
+not respecting employee rights.
+ Mr. Barletta. Mr. King, drawing from your professional
+experience and past work with the NLRB, how truly assertive is
+this current Board specifically in terms of their
+interpretation of precedent and their willingness to overstep
+traditional boundaries in asserting their authority?
+ Mr. King. I think quite activist, Mr. Congressman, and that
+is why we are here today.
+ I know that you can put anything on a spin basis, but they
+are just deciding cases, they are not going outside of the
+parameters of past Boards, that is simply not correct. What
+this Board has done recently is ask for amicus briefs more
+times than have been asked by a Democrat or a Republican Board
+in my history, in my memory.
+ Second of all, this is only the third time in the agency's
+history that it has engaged in rulemaking. That is certainly
+not the norm.
+ Further, to the contrary of what has been said today, this
+Board has already reversed precedent. Further, it has teed up,
+if you will, another very important question, including in the
+specialty health care case, in question number 7 and question
+number 8, how we go about determining who is in a voting unit
+and who ultimately might be in a bargaining unit. That is
+nowhere on that case. But just the ramifications of that, to
+perhaps turn upside down our whole Nation's labor laws on
+selection of the bargaining or voting unit approach, is very
+troubling.
+ So for anyone to suggest that this Board is not an activist
+Board and its general counsel is clearly wrong. Now, we can
+disagree about where this Board comes out, where this general
+counsel comes out, I would concur. Decisions are still yet to
+be made. But you have to look at this objectively and walk out
+of this room today and say, yes, this Board is extremely
+active, and this committee, I would submit, needs to be
+concerned.
+ Mr. Barletta. Mr. Miscimarra, drawing on my question to Mr.
+King, on December 21, 2010, in a rare exercise of formal NLRB
+rulemaking, the Board published a Notice of Proposed Rulemaking
+requiring almost all covered employers to post a notice of
+employees' rights in the workplace.
+ My question is does the Board have the authority to do
+this?
+ Mr. Miscimarra. I think the Board does not, and this is an
+issue, Congressman, that I have already addressed to some
+degree. But, you know, the Railway Labor Act, I think, was
+passed in 1926. It has a notice-posting requirement. The
+National Labor Relations Act was passed in 1935. It does not.
+ Congress makes the decisions when you insert in laws
+whether they have notice-posting requirements or other
+requirements, and I haven't heard anything that I have found to
+be convincing to suggest that the Board should make that
+determination rather than Congress.
+ Mr. Barletta. Thank you.
+ Chairman Roe. Mrs. McCarthy.
+ Mrs. McCarthy. Thank you, thank you, Mr. Chairman.
+ Mr. Rosenfeld, I know when one of my colleagues asked you
+the question on whether you believe that anti-card-check State
+law is preempting, I really don't think you answered the
+question correctly.
+ Now, I know Mr. King tried to answer that question, too,
+but looking at the statute of the State of South Dakota, which
+one of my other colleagues had talked about, basically what
+they are saying, that in their legislation was the rights of
+individuals--this is put up--the rights of individuals to vote
+by secret ballot is fundamental. If any State or Federal law
+requires or permits an election for public office, or any
+initiative or referendum, or for any designation, authorization
+of employee representation, the right of any individual to vote
+by secret ballot shall be guaranteed.
+ So with that being said, do you think that you would want
+to reanswer the question on anti-check State laws preempting
+the Federal?
+ Mr. Rosenfeld. No, I wouldn't, but I am going to, okay.
+ No, what I try to say is that on its face there is no
+question in my mind that the language read that way should be
+preempted.
+ However, again, there has been a letter sent by the four
+attorneys general referring to how that language is going to be
+interpreted, such that it would not be preempted. At least this
+is an argument being made by the acting general counsel. And so
+I would not opine on whether that is correct or not correct
+because that is beyond my purview.
+ But I wasn't trying to avoid the language that you read. I
+would say definitely. I mean, that is clearly--but it depends
+on how it is enforced and how it is administered.
+ Mr. King. I would only add, Congresswoman, I think this
+shows how concerned certain States are, and they are really
+almost begging, I think, the Congress to say, let us get into
+this discussion, and if it is preempted, let us have some clear
+guidance on it. This is extraordinary to have these many States
+pass these type of constitutional referendums.
+ Mrs. McCarthy. Well, I am going to disagree with you just
+on one level. Basically I think an awful lot of States are
+antiunion, and, in my opinion, when they are antiunion, they
+are actually antiworker.
+ When you see how many--unfortunately, workers, whether it
+is unionized or not unionized, we still have the high rate of
+people that die on the job. We still have a high rate of people
+that are seriously injured. And I think that is why, when you
+start looking at why so many of us try to defend safety, work
+safety, anything--listen, there are a lot of good employers out
+there, and they take their job very seriously on protecting
+their workers. We also know there are an awful lot out there
+that do not treat workers as human beings.
+ I come from a family that were all union, hard-working
+people; gave us, myself, a chance to move up into middle-income
+families. So when I hear people talk about unions like they are
+not human beings or they are not good people, I get very upset,
+because you are talking about my family. And so with that being
+said, that is why I believe that the NLRB, the Board, is doing
+the best they can to protect workers.
+ Now, I know, I have watched you answer an awful lot of the
+questions, Ms. Estlund. Would you like to also answer to what
+we have been discussing?
+ Ms. Estlund. Well, I do think that we need to recognize
+that we have--we do have a serious unemployment problem. We
+have a serious problem in the economy. Many other countries,
+Canada and Europe, have weathered the recession better, and
+they do happen to have significantly higher levels of
+unionization.
+ I am not suggesting that that is the entire explanation;
+there are many differences between how different countries run
+their economies and their labor relations. But clearly one
+problem with declining union density that many economists have
+pointed to is that it has eroded purchasing power in the middle
+class and contributed to increasing economic inequality.
+ So I would agree with you.
+ Mrs. McCarthy. Thank you.
+ With that, I yield back.
+ Chairman Roe. Thank you.
+ Mr. Ross.
+ Mr. Ross. Thank you, Mr. Chairman.
+ I do want to point out there was an article and editorial
+in the Wall Street Journal 2 weeks ago that indicated that the
+22 right-to-work States have much better economies than the
+remaining States. So I think there is some causal relationship
+between right to work and strong employment.
+ Ms. Estlund, I am intrigued by the preemption argument, and
+I have--I will admit right up front that I have a shallow
+understanding of the National Labor Relations Act.
+ But I also have a question, because it seems to me that
+this is a broad brush that we paint. And, for example, in the
+State of Florida, we have a drug-free workplace that requires
+certain requirements of the employee and obligations, of
+course, of the employer.
+ If, in fact, there was a union in the State of Florida that
+collective bargained so that their employees, their union
+employees, would not have to take the--or apply to the drug-
+free workplace, would that be an adequate preemption of the
+NLRB's jurisdiction over the State of Florida so that you would
+have nonunion employees subject to the drug-free workplace and
+the union employees who have collective bargained not?
+ Ms. Estlund. No, preemption is not that broad. There is a
+domain of State authority over many of these issues, and
+collective bargaining may be constrained by it----
+ Mr. Ross. So you would agree, then, that there are certain
+States' rights that would allow for the absence of a Federal
+preemption under the NLRB?
+ Ms. Estlund. Certainly. States have power in the workplace
+arena generally. It is in the labor relations context
+particularly that preemption is so very broad.
+ Mr. Ross. Speaking of the Employee Free Choice Act, Ms.
+Estlund, do you have an opinion whether any of the provisions
+of that act could be administered strictly through rulemaking
+authority absent congressional intervention?
+ Ms. Estlund. I don't think any of them could be enacted as
+written, not even close, no.
+ Mr. Ross. So that the secret ballot would only then be
+allowed through congressional legislation?
+ Ms. Estlund. To ban the use of card check, in other words,
+to prohibit employers from recognizing a union on the basis of
+card check, that would definitely take congressional action
+because that is a right that the Supreme Court has recognized,
+that the Bush Board in 2007 recognized, the right of employees
+to seek voluntary recognition on the basis of cards. So that
+would require congressional action, yes.
+ Mr. King. Congressman, if I may, you touch upon a very
+important point. That is one of the concerns the employer
+community has about this Board, whether a number of provisions
+that were put forth in the Employee Free Choice Act might, in
+fact, result from this Board's activist agenda.
+ By the way, the Lakeland Regional Medical Center is a
+client, and you have a great community.
+ Mr. Ross. Yes, we do. Thank you.
+ Ms. Estlund, about the publication of notice, I note that
+the notice is not inclusive; in other words, it is incomplete
+of all the rights, would you say?
+ Ms. Estlund. Well, it is incomplete in the sense that there
+are 75 years' worth of decisions elaborating these rights, and
+it struck me as a very fair-minded summary in a way that could
+be understood by employees, and it takes pains to recognize in
+every case that employees have the right to do these things,
+they have the right not to.
+ Mr. Ross. Exactly. And I think in your opening comments you
+said that it is one of these things that should be
+uncontroverted and shouldn't have any problem being
+implemented. But yet don't you think that it should also
+include that the employees have the right not to form, join or
+assist in any labor organizations?
+ Ms. Estlund. I believe it says that. They also have the
+right not to engage. I am sorry, I don't have the actual text.
+ Mr. Ross. I think you might want to go back and take a look
+at that, and also whether they also have the right to pay only
+a portion of union dues attributable to collective bargaining,
+contract administration and grievance adjustments.
+ Ms. Estlund. That is an interesting one because that right
+only becomes relevant once there is a union, and that notice
+is--some notice to that effect is already required.
+ Mr. Ross. And so when he talk about rights, because that is
+what the NLRB is existing for is to make sure employees have
+rights, but then on the same token you have also got
+obligations. So if an employer wanted to make sure that,
+enforcing the rights of the employees, they also made known the
+obligations of the employees by way of performance and
+production standards, would you have an opinion whether it
+would be an intimidating communication and, therefore, an
+unfair labor practice if they were to post, the employer were
+to post, notice of what was required of the employees in terms
+of production and performance?
+ Ms. Estlund. I think it is absolutely routine for employers
+to do that. They have the right to do that. They manage the
+workforce. They notify employees all the time in many forms, by
+orally, handbooks, rules. They have the power to do that
+already.
+ This is one effort to notify employees that they have some
+rights that sometimes are exercisable against their employers
+as well, because that is what Congress----
+ Mr. Ross. Thank you. I see my time is up.
+ Chairman Roe. I thank the gentleman.
+ I will finish this up by asking a few questions, and
+basically, since it is my first day to chair, I want to
+introduce myself to the committee and just tell you I grew up
+in a union household. My father was a member of United Rubber
+Workers Union. I have been out on many strikes. I have seen
+that occur in my hometown. I also spent 30-plus years as an
+employer and working in--certainly on the medical industry
+side.
+ My good friend, the ranking member who just left, had
+mentioned in his opening remarks that the Board agreed 83
+percent of the time and 67 percent of the time under Bush.
+Well, I would say it depends on what you are agreeing to.
+ I think the Republicans and Democrats have agreed pretty
+well to name post offices and congratulate Confucius, but it
+would be depending on what we were discussing that particular
+day. So I think major issues like that you will find some
+disagreement on.
+ I want to go where Mr. Ross was momentarily. You know, I
+don't know about you, if you have ever been in a workplace
+recently. In my office, the bulletin board looks like a NASCAR
+driver's suit with all of the stuff that you have to tell
+people about. I can barely read the statutes of Fair Labor
+Standards Act; Title VII, Civil Rights Act of 1964;
+Occupational Safety and Health Act; Family Medical Leave Act.
+But the NLRA does not require postings of those things, it does
+not require that. So this is an activist rulemaking, and I have
+gotten a lot of employer feedback about where is this going?
+ And, Mr. King, I would like for you--I know you are out
+there every day in the field working. Have you seen the same
+thing I have?
+ Mr. King. Absolutely, Mr. Chairman. Where does it stop? And
+how much regulation does the employer, particularly a small
+business employer, have to put up with? How do you interpret
+what a class-action lawsuit standards might be these days? This
+activist OSHA group that we have now at the Department of Labor
+frequently has gone out on a limb in saying we are going to be
+very, very aggressive. Now they have pulled back perhaps a
+little bit recently.
+ So the employer community is at risk every day of a lawsuit
+from a private practitioner or from a regulatory agency. I
+mean, how much does this economy have to bear of this
+regulation is really, I think, perhaps what we are talking
+about.
+ Chairman Roe. I have seen numbers and so forth, and I would
+wonder, if I would just have an opinion from you all briefly,
+about why--because I absolutely agree with you that worker
+rights have to be protected, but so do employer rights.
+Employers have rights also. And I wonder what your opinion is
+about why the public-sector unions are the only unions that are
+growing now.
+ And what worried me was my father lost his job in 1974
+making shoe heels in a factory to Mexico because of one more
+strike that occurred, and they could do business less
+expensively somewhere else. And that is why that company left,
+and my father, at 50 years old, post-World War II, didn't have
+a job.
+ So I would look at that, and I would just like to solicit
+your opinion about that, what you think the reasons for, our
+decreasing private-sector unions?
+ Mr. Miscimarra. There are probably, Congressman--you can
+ask 10 people, and you will get 1,000 different reasons. But
+the one thing that I will come back to, and I mentioned this in
+my opening remarks, is the act was passed at a time where we
+had a national economy.
+ It is, at its essence, an adversarial system. So the thing
+that really makes collective bargaining work--and I have
+embraced collective bargaining in my practice. I have many
+clients that have mature bargaining relationships and
+constructive relationships with their unions. Bargaining ends
+up reducing to leverage. I think many employees recognize that
+this system is one that is not conducive to cooperativeness and
+efficiency, and confrontation and dissension ends up being
+unpleasant and harmful to everybody. In spite of everybody's
+best efforts, the act's structure really makes it very
+difficult to avoid confrontation.
+ Ms. Estlund. This is actually a question, Mr. Chairman,
+that I have spent a lot of time thinking and reading and
+writing about, and I completely agree that there are many
+reasons why private-sector unionism has declined. Clearly, in
+my mind, one of them is that employers have become increasingly
+aggressive in opposing and resisting employees' efforts to
+unionize. That is the one part of the picture that the National
+Labor Relations Board is obligated to address.
+ But the question of the adversarial system that we have set
+up, I also completely agree that it is important to think about
+ways to allow for more cooperative labor-management relations,
+and some provisions of the existing law may be problematic in
+that regard.
+ Strike levels in our country are at literally the lowest
+level in a century. And, secondary, picketing and activities of
+that nature is also at historically low levels.
+ Workers at this point need to be able to exercise the right
+to get together and sit down with their employer and discuss
+what is the best way to move forward.
+ Mr. King. Mr. Chairman, if I could highlight for just a
+minute, I couldn't agree more, and hopefully this body and the
+other body will look at the TEAM Act that was, in fact, passed
+by the Congress a number of years ago that allows for
+cooperation in the workplace. The law in this area is outdated,
+and perhaps my colleague would join me here in urging this
+committee and other committees of the Congress to pass the TEAM
+Act.
+ Chairman Roe. Thank you.
+ Does the ranking member have any closing remarks?
+ Mr. Kildee. I just have two points that I would like to
+make. You know, I listened with interest, as a history major,
+the preemption discussion. It takes me back to John Calhoun and
+nullification. And then it was he--Andrew Jackson finessed that
+one very well. But the Civil War, after he settled the question
+of nullification--so I think we have a basic constitutional
+question here.
+ This is a type of nullification that Calhoun embraced so
+strongly. I think we should all agree to our history, and we
+are celebrating the 150th anniversary of the beginning of the
+Civil War right now.
+ Also, you know, for employees who--employers who are
+government contractors, what is displayed there talks about the
+rights under the NLRA, and it has to choose not to do any of
+these activities, activities including joining or remaining a
+member of a union. And they are circulating now opinions from
+all employees to have that included in the display to say that
+under the NLRA, you have the right to choose not to do any of
+these activities, those previous ones, including joining or
+remaining a member of the union. So I think that should clarify
+that.
+ But the preemption scares me. You know, you have the
+Governor of Texas talking about secession. You have Utah doing
+certain things, South Dakota doing certain things. We have a
+Federal Constitution, which makes us one Nation. You have
+States kind of almost capriciously defying that fact is a
+little scary, as the nullification under John Calhoun was scary
+back 180 years ago.
+ Chairman Roe. Thank you.
+ Just, in closing, I put on a uniform and left this country
+37 years ago and spent 13 months in a foreign country in an
+infantry division. I did that willingly, and I am proud of the
+service that I did, as many, many veterans are. And we did that
+to give you the right for a secret ballot. My wife claimed she
+voted for me in the election. I don't know that she did or
+didn't. And that is not necessarily a bad thing. I think we
+have a right to do that. I think it is one of the most
+fundamental rights. The President was elected that way; every
+Member of Congress was elected that way. And I think it makes
+Ms. Estlund's point that if you think someone is putting
+pressure on you from the employee standpoint or the employer
+standpoint, you have a right to go in a secret place to cast
+your ballot, and the majority wins.
+ That is what is the most important thing I can think of.
+And I believe that you are correct, Mr. King, that we need to
+make sure that we put that in statute where, once again, the
+Constitution gives us that right, and every worker and every
+employee in this country should have that right. We should
+never take that right away.
+ I can't thank you all enough. It has been a great panel,
+good questions, and I look forward to carrying on this
+discussion.
+ Any further comments?
+ Without any further comments, the meeting is adjourned.
+ [Additional submissions of Mr. Andrews follow:]
+
+[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
+
+ ------
+
+ [Whereupon, at 12:01 p.m., the subcommittee was adjourned.]
+
+
+
+