[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
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----------
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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
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:]
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[Whereupon, at 12:01 p.m., the subcommittee was adjourned.]