[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
            OVERSIGHT OF THE NATIONAL LABOR RELATIONS BOARD

=======================================================================

                                HEARING

                               before the

                    SUBCOMMITTEE ON HUMAN RESOURCES

                                 of the

                        COMMITTEE ON GOVERNMENT
                          REFORM AND OVERSIGHT
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                             JULY 24, 1997

                               __________

                           Serial No. 105-77

                               __________

Printed for the use of the Committee on Government Reform and Oversight


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                            WASHINGTON : 2003
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              COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois          TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland       ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico            EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida         GARY A. CONDIT, California
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEPHEN HORN, California             THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida                ELEANOR HOLMES NORTON, Washington, 
THOMAS M. DAVIS, Virginia                DC
DAVID M. McINTOSH, Indiana           CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida             DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona             ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio           DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South     JOHN F. TIERNEY, Massachusetts
    Carolina                         JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire        THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas                 HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey                       ------
VINCE SNOWBARGER, Kansas             BERNARD SANDERS, Vermont 
BOB BARR, Georgia                        (Independent)
ROB PORTMAN, Ohio
                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
         William Moschella, Deputy Counsel and Parliamentarian
                       Judith McCoy, Chief Clerk
                 Phil Schiliro, Minority Staff Director
                                 ------                                

                    Subcommittee on Human Resources

                CHRISTOPHER SHAYS, Connecticut, Chairman
VINCE SNOWBARGER, Kansas             EDOLPHUS TOWNS, New York
BENJAMIN A. GILMAN, New York         DENNIS J. KUCINICH, Ohio
DAVID M. McINTOSH, Indiana           THOMAS H. ALLEN, Maine
MARK E. SOUDER, Indiana              TOM LANTOS, California
MICHAEL PAPPAS, New Jersey           BERNARD SANDERS, Vermont (Ind.)
STEVEN SCHIFF, New Mexico            THOMAS M. BARRETT, Wisconsin

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
            Lawrence J. Halloran, Staff Director and Counsel
                   Doris F. Jacobs, Associate Counsel
                       R. Jared Carpenter, Clerk
                    Cherri Branson, Minority Counsel


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 24, 1997....................................     1
Statement of:
    Allen, Robert E., inspector general, National Labor Relations 
      Board, accompanied by John Zielinski and Michael Griffith; 
      and Carlotta Joyner, Director of Education and Employment 
      Issues, U.S. General Accounting Office.....................   137
    Gould, William B., IV, chairman, and Fred L. Feinstein, 
      general counsel, National Labor Relations Board, 
      accompanied by Alfred L. Wolff, chief counsel; Robert A. 
      Giannasi, chief administrative law judge; and Harding 
      Darden, budget officer.....................................    14
    Yager, Daniel V., vice president and general counsel, Labor 
      Policy Association; Jeffrey H. Joseph, vice president for 
      domestic policy, U.S. Chamber of Commerce; and Jonathan P. 
      Hiatt, general counsel, AFL-CIO............................   171
Letters, statements, etc., submitted for the record by:
    Allen, Robert E., inspector general, National Labor Relations 
      Board, prepared statement of...............................   140
    Associated Builders and Contractors, Inc., prepared statement 
      of.........................................................    10
    Feinstein, Fred L., general counsel, National Labor Relations 
      Board, prepared statement of...............................   102
    Gould, William B., IV, chairman, National Labor Relations 
      Board, prepared statement of...............................    17
    Hiatt, Jonathan P., general counsel, AFL-CIO, prepared 
      statement of...............................................   229
    Joseph, Jeffrey H., vice president for domestic policy, U.S. 
      Chamber of Commerce, prepared statement of.................   219
    Joyner, Carlotta, Director of Education and Employment 
      Issues, U.S. General Accounting Office, prepared statement 
      of.........................................................   150
    Shays, Hon. Christopher, a Representative in Congress from 
      the State of Connecticut, prepared statement of............     3
    Yager, Daniel V., vice president and general counsel, Labor 
      Policy Association:
        Response to points raised in the hearing.................   254
        Prepared statement of....................................   175


            OVERSIGHT OF THE NATIONAL LABOR RELATIONS BOARD

                              ----------                              


                        THURSDAY, JULY 24, 1997

                  House of Representatives,
                   Subcommittee on Human Resources,
              Committee on Government Reform and Oversight,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 11 a.m., in 
room 2247, Rayburn House Office Building, Hon. Christopher 
Shays (chairman of the subcommittee) presiding.
    Present: Representatives Shays, Snowbarger, Pappas, Towns, 
Lantos, Barrett, Kucinich, Allen, and Sanders.
    Staff present: Lawrence J. Halloran, staff director and 
counsel; Doris F. Jacobs, associate counsel; R. Jared 
Carpenter, clerk; and Cherri Branson, minority counsel.
    Mr. Shays. I would like to call this hearing to order and 
welcome our distinguished witnesses, the members of this 
committee and our guests.
    This is our first hearing on the National Labor Relations 
Board, the NLRB.
    When my good friend and colleague, Congressman Tom Lantos, 
chaired the former Employment and Housing Subcommittee, we had 
an oversight hearing almost every year on the NLRB. We 
dutifully tried to monitor their performance, primarily as 
measured by the Board's case backlog. Each year, the backlog 
was examined, explained and denounced. Each year, commitments 
were made to do better next year.
    It was repetitive, but necessary, oversight because we had 
no clear benchmarks or standards against which to measure the 
Board's activities from year to year. As successive 
administrations appointed Board members and general counsels, 
and as economic and labor conditions changed, it became more 
difficult to make meaningful comparisons or discern trends in 
NLRB effectiveness and productivity.
    Implementation of the Government Performance and Results 
Act, what we refer to as the ``Results Act,'' promises to free 
us and the NLRB, from the oversight treadmill. By requiring a 
clear mission statement, a long-range strategic plan, outcome 
goals and performance measures, the Results Act will allow 
Board executives, Congress and the public to know how well 
cases are being decided, not just how many.
    The qualitative and quantitative measures required by the 
Results Act could be important, even essential, tools for the 
NLRB, which is often called upon by fiercely competing 
constituencies to justify its actions and defend its 
neutrality. In performing its important mission to enforce the 
laws governing the peaceful, orderly resolution of labor-
management disputes, the NLRB should make measurable progress 
toward objective goals to reassure those on both sides of the 
bargaining table of the Board's effectiveness and fairness.
    Policies of the current Board on the use of injunctive 
relief, or the use of mail ballots, might be better understood 
when expressed as components of a long-range plan, clear goals 
and measurable objectives, just as the Results Act scrutiny 
will require alteration of NLRB practices that do not meet 
legitimate objectives or produce measurable results.
    However, the NLRB's first step toward Results Act 
compliance--the development of a 5-year strategic plan--has, so 
far, fallen significantly short of the mark. While the Board 
calls the plan a ``work in progress,'' that characterization 
may confuse random movement with forward motion.
    Performance measures in the first draft, while poorly 
defined, disappeared altogether from the version provided to 
the subcommittee on July 8. Two days ago some measurable 
performance standards reappeared in a third draft, in response 
to an analysis of the July 8 plan by the General Accounting 
Office, GAO, requested by this subcommittee.
    Based on these versions of the strategic plan, Results Act 
compliance appears to be a paper exercise, far removed from the 
fundamental operations of the NLRB. For example, an audit by 
the NLRB inspector general, IG, last year found long-standing 
performance measurement systems applicable to Results Act 
implementation, yet those systems are only vaguely incorporated 
into the plan.
    More troubling, the GAO found the computerized NLRB case 
tracking system under development, on which the Board will have 
spent more than $10 million through next year, could be 
incompatible with the Results Act requirements and need 
expensive retrofitting. Nor does the plan include provisions to 
get NLRB computers, new or old, across the year 2000 threshold.
    According to the Board's latest strategic plan, its 
mission, ``Is to encourage and promote stable and productive 
labor management relations and thereby to promote commerce and 
strengthen the Nation's economy.'' The subcommittee's mission 
is oversight, to ensure the NLRB meets its statutory mission 
effectively and efficiently. The Results Act requires we pursue 
our missions together, through consultation or on development 
of the strategic plan. That consultation begins today.
    This subcommittee and this chairman welcome the testimony 
of our witnesses today.
    [The prepared statement of Hon. Christopher Shays follows:]

    [GRAPHIC] [TIFF OMITTED] T6442.001
    
    [GRAPHIC] [TIFF OMITTED] T6442.002
    
    Mr. Shays. Before calling on the ranking member, I want to 
say that there is no hidden agenda here. The purpose of this 
hearing is to learn how this department can operate better. It 
is a goal that I am sure is shared by the administration and by 
you, Mr. Gould, in particular.
    I want to apologize to the members who may have statements. 
I have a 15-minute meeting that I have to get to. Because of 
votes, I am going to recognize Mr. Towns. I will miss the 
statements made, but I am going to really hustle back, Mr. 
Gould, to make sure that I am here for your testimony.
    At this time, I would call on Mr. Towns, the ranking 
member.
    Mr. Towns. Thank you, Mr. Chairman. Let me also thank you 
for holding this hearing. It seems to me that today's hearing 
is really about two things: the Government Performance and 
Results Act and the effective performance of the NLRB.
    First, let's talk about the Government Performance and 
Results Act. As the committee which initiated this legislation, 
we should be concerned not only about compliance, but about the 
meaning the law has been given by those who are charged with 
its interpretation.
    It should be remembered that GPRA was never intended to be 
narrowly interpreted. We did not intend for GPRA to operate as 
a noose around the neck of agencies. Our intention in enacting 
GPRA was to create an ongoing dialog between Congress and the 
agencies, which would facilitate increased communications about 
agency performance and the use of appropriated funds.
    The belief was that open communication would foster 
increased discussion, consultation and positive interaction. 
However, that does not seem to be what we have gotten. It is my 
understanding that despite a September 30, 1997 deadline, most 
of the agencies and departments have not submitted their GPRA.
    One reason for this reluctance may be that of the 16 plans 
that GAO has reviewed, only 1 plan has been deemed to meet all 
the criteria. It would seem to me that this overwhelming amount 
of failing grades has more to do with agencies being unsure of 
the requirements than with the lack of agency resolve.
    Years ago I had a teacher who said that if the majority of 
the class fails, two things have happened. The teacher has 
failed to teach and the students have failed to complain. I 
think we may have a similar situation here. I say to the 
chairman, I hope that in addition to examining whether the 
requirements of GPRA have been met, we examine whether the 
spirit of discussion, incorporation and vision by GPRA have 
been met.
    Our second topic today appears to be the economy and 
efficiency of the NLRB. In 1990, the GAO found that the Board 
headquarters were terribly slow in hearing and deciding 
appeals. Some believe that this foot-dragging was politically 
motivated. Today, far from foot-dragging, some are accusing the 
NLRB of moving too fast, issuing injunctions and becoming 
involved in too many disputes. Those who make these allegations 
also charge political motivation.
    Again, let me just bring some facts to light. In an effort 
to eliminate the backlog of cases, Chairman Gould has appointed 
an advisory panel of prolabor and promanagement lawyers to 
recommend ways to improve the processing of cases and improve 
the agency's service to the public, and I applaud him for that. 
Additionally, the chairman has instituted speed teams that 
reduce the time and paperwork involved in hearing a case. These 
procedures have enabled the Board to reduce its backlog. As the 
Committee on Government Reform and Oversight, we should also 
say thank you.
    Finally, there is some concern about whether the Board is a 
partisan body. During the Reagan administration and during the 
Bush years, many accused the Board of being promanagement and 
decidedly antiunion. Therefore, these concerns are not new. It 
seems to me that if the Board's decisions were out of touch 
with the established law, the courts would serve as an 
effective check on the Board's authority. It is my 
understanding that the courts have upheld the Board's decisions 
in over 90 percent of all of the cases. Therefore, it seems to 
me that although these decisions may not be popular with some, 
they are in accord with the law.
    Again, let me say to the chairman, I want to thank you for 
holding today's hearing, and I look forward to hearing the 
testimony of all of the witnesses.
    At this time I yield back.
    Mr. Snowbarger [presiding]. I think I am going to take the 
prerogative of going out of order and just have Mr. Allen, if 
you want to make a statement.
    Mr. Allen. I have no statement at this time.
    Mr. Snowbarger. OK. Mr. Barrett.
    Mr. Barrett. I have no formal statement.
    I just simply want to say, as we talk about the NLRB, that 
the major experience that I have had has been the involvement--
the active involvement in a situation in my district where 
Pabst Brewery pulled out after 140 years in Milwaukee; and 
there were charges made by the union, and the National Labor 
Relations Board has been very active, and I want to thank you 
for that. I think you have responded very well and have given a 
glimmer of hope to what has been otherwise a very sad situation 
in my district.
    Mr. Gould. Thank you, Congressman.
    Mr. Snowbarger. Mr. Lantos.
    Mr. Lantos. I have no formal opening statement, Mr. 
Chairman, but I would like to say a couple of things.
    Chris Shays was correct in saying that when I chaired this 
subcommittee, during the happier days of this body, we did have 
annual hearings concerning the work of the NLRB, and I am 
pleased that Chairman Shays called this hearing.
    I have a number of specific questions I will put to 
Chairman Gould, but let me say at the opening that I have been 
enormously impressed by the Gould chairmanship of the NLRB.
    You have been operating, Mr. Chairman, under enormously 
difficult circumstances, not of your own making, and I want to 
publicly tip my hat to you for having maintained the dignity 
and the decorum and the effectiveness of this body under the 
most extremely difficult circumstances. I hope we will be able 
to remove those circumstances so that an NLRB at full 
complement, fully confirmed, can finally do its job properly.
    I think you have been subjected to unfair criticism from 
many quarters. I have very carefully looked at and analyzed 
those bits of criticism and I have found them to be wanting. I 
think you are performing in a remarkable fashion in an almost 
untenable situation with only three members of a five-member 
Board, with two of the three members not having been confirmed.
    As a matter of fact, may I ask, are you in fact the only 
confirmed member of this Board?
    Mr. Gould. I am, Congressman.
    Mr. Lantos. Well, I think that it is an appalling state of 
affairs that a body of such importance which should have a full 
complement of five members, all five fully and duly confirmed, 
so they can do their job without fear and intimidation, should 
be overlooking the whole labor management picture in the United 
States. It would be analogous to having eight Supreme Court 
justices on temporary appointment, waiting to be confirmed, and 
I would like to see how the Supreme Court's decisions would be 
unfolding under those circumstances.
    So let me commend you and congratulate you, Mr. Chairman, 
and I look forward to asking some specific questions of you.
    Mr. Gould. Thank you, Congressman Lantos.
    Mr. Snowbarger. I would remind Mr. Lantos that happier days 
kind of depend on your perspective, I think, but Mr. Sanders.
    Mr. Sanders. Thank you, Mr. Chairman. I am going to have to 
be leaving in a moment because I have an amendment on the 
floor, but I want to just concur in the statement that Mr. 
Lantos has made.
    It is no secret that the work that Chairman Gould is 
involved in is highly contentious. There are some of us who 
believe that workers in this country have an absolute right to 
come together in union to fight for their rights, and some of 
us believe that one of the reasons that the standard of living 
of American workers has gone down precipitously over the last 
25 years is the weakening of the trade union movement.
    It is no secret that there are other people within the 
Congress who do not hold these views. It is also no secret that 
there are people who are working very hard and are spending 
huge amounts of money trying to destroy the trade union 
movement, making it harder and harder for workers to come 
together in unions.
    One of the real problems that I have--and I have introduced 
legislation to try to address this problem--is that right now 
the truth of the matter is that it is in fact very difficult 
for workers to come together to form a union; that an employer 
with strong consultants, with good legal staff, can stall and 
stall and stall; and if workers do all of the right things, if 
workers play by the rules, some of their most active proponents 
of unionism will be fired, the process will be delayed, and 
there will be no retribution on the part of the employer.
    I find it, as Mr. Lantos just indicated, extremely 
unfortunate and extremely unfair that both Mr. Gould and Mr. 
Gould's department is understaffed, is not given the 
opportunity to do the work that they are supposed to do, which 
is to protect the interests of American workers in a fair way.
    I just want to applaud Mr. Gould for the work that he has 
been doing, and I hope that this Congress can give him the 
staff and the associates so that he can do his job adequately.
    Thank you, Mr. Chairman.
    Mr. Snowbarger. Mr. Kucinich.
    Mr. Kucinich. Thank you, Mr. Chairman. I would like to 
welcome the NLRB Chairman, William Gould, to his first 
appearance before the Human Resources Subcommittee.
    During my 6 months in Congress, I can say that this 
subcommittee has developed an excellent record of adopting a 
reasonable and bipartisan approach to its review of agency 
operations. When it comes to questions of labor management 
relations, however, it may be a challenge to maintain this 
constructive spirit.
    Since its formation in the 1930's, the NLRB has played an 
important role in our society. It is the main government 
organization that ensures that employees can freely decide 
whether or not to band together into labor organizations. It is 
critical, absolutely critical, to the stability of our society 
that the NLRB have the capacity to carry out that mission.
    The Government Performance and Results Act provides an 
opportunity to determine whether the NLRB does have enough 
resources to carry out its mission for the good of our country. 
I would like to echo Mr. Sanders' remarks. Working people have 
rights in this country. The nature of a democratic society is 
that we defend workers' rights. We do that legislatively, we do 
that in speeches, we do that in meetings, and we do that 
through having a national labor relation board to make sure 
that workers' rights have not been stripped covertly through 
tactics which undermine people's right to organize, the right 
to be able to strike, the right to file grievances, the right 
to be able to stand up and protect the interests of their 
fellow workers.
    The National Labor Relations Board has a long and proud 
history of representing American workers, and I have to say 
that Mr. Gould, among all the NLRB chairs that I have been 
familiar with or have read about, stands out as someone who has 
fearlessly defended workers' rights. I want to welcome you to 
this committee and let you know that in this committee there 
are members who are going to defend your ability to stand up 
for American workers and to use the agency of government and 
put it on the side of American workers and their hopes and 
dreams, and I thank you.
    Mr. Towns. Will the gentleman yield?
    Mr. Kucinich. I will yield.
    Mr. Towns. The gentleman is still a Democrat, isn't he?
    Mr. Snowbarger. He is real uncomfortable over here.
    Mr. Kucinich. Imagine if I had crossed over and made that 
statement as a Republican, we would all be singing from the 
same hymn book. I am here as an American first, as a supporter 
of labor, as a Democrat, but also as a friend to the 
Republicans to work with you to make sure that working people 
have the opportunity to be well represented in NLRB.
    Mr. Snowbarger. Has the gentleman's time expired yet?
    Just a few brief comments before we get to the witnesses. 
We want to thank you for your appearance here today, and as the 
chairman indicated, he will be back shortly.
    As has been indicated, though, there are two sides to some 
of these issues. I come from the State of Kansas which is a 
right-to-work State, and about a year ago--I believe a year ago 
in April--there were field hearings held in my district by my 
predecessor and other Members of Congress on the issue of 
salting.
    The thing that concerned me, again in a right-to-work State 
where we have both union members and shops that are open and do 
not have union members, was the practice of unions sending 
organizers into those businesses where there were not labor 
organizations and were not union representatives, and there was 
no interest in union representatives. The workers in those 
companies were pleased with management and were communicating 
very well with management, and very frankly, the NLRB made the 
right decision in most of those cases. The problem was, they 
made the right decision in those cases after the employers were 
forced to spend hundreds of thousands of dollars on legal fees 
in trying to protect their interests and protect even their 
employees.
    So I will be having some questions later on about the 
practice of salting and about NLRB's approach to that.
    I take a different approach to this than Mr. Kucinich. I 
think that the NLRB should be taking a neutral approach to 
these subjects, not to be an advocate; and unfortunately, I 
think that they have in later years become an advocate for 
labor unions as opposed to taking a neutral stance in just 
protecting the rights of both workers and management.
    With that, let me make a couple of business actions here. 
First of all, I would ask unanimous consent to enter into the 
record a statement from the Associated Builders and Contractors 
that has been presented to me and again indicates problems with 
the practice of salting.
    Seeing no objection, then I would ask unanimous consent 
that all members of the subcommittee be permitted to place any 
opening statement into the record and that the record remain 
open for 3 days for that purpose. Without objection, so 
ordered.
    [The prepared statement of the Associated Builders and 
Contractors, Inc., follows:]

[GRAPHIC] [TIFF OMITTED] T6442.003

[GRAPHIC] [TIFF OMITTED] T6442.004

[GRAPHIC] [TIFF OMITTED] T6442.005

[GRAPHIC] [TIFF OMITTED] T6442.006

    Mr. Snowbarger. I ask further unanimous consent that all 
witnesses be permitted to include their written statements in 
the record.
    Without objection, so ordered.
    It is the practice of this committee, as with most 
congressional committees, to swear in our witnesses. So I would 
like to ask them to stand, if they would, please.
    If you have people that will be testifying with you, I 
would ask them to stand as well.
    [Witnesses sworn.]
    Mr. Snowbarger. I note for the record that the witnesses 
did respond in the affirmative. Thank you, gentlemen.
    I will call on the chairman of the National Labor Relations 
Board, Mr. Gould.

   STATEMENTS OF WILLIAM B. GOULD, IV, CHAIRMAN, AND FRED L. 
  FEINSTEIN, GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD, 
   ACCOMPANIED BY ALFRED L. WOLFF, CHIEF COUNSEL; ROBERT A. 
 GIANNASI, CHIEF ADMINISTRATIVE LAW JUDGE; AND HARDING DARDEN, 
                         BUDGET OFFICER

    Mr. Gould. Thank you, Congressman. It is a pleasure to be 
able to come here and speak to you about our agency, our act, 
and the progress that we have made under it, and to focus on 
GPRA as well.
    With me, to my left, is Fred Feinstein, the general counsel 
of the agency; and to my right, Al Wolff, my chief counsel. 
Also with us is Robert Giannasi, the chief administrative law 
judge; and Harding Darden, our budget analyst. I have asked 
them to stand and be sworn in, because from time to time we may 
want to consult with them.
    I want to say that I have, during these past 3\1/2\ years 
as chairman of the agency, viewed it as an honor and privilege 
to serve the U.S. Government and to accept President Clinton's 
invitation to serve. I regard myself as part of this 
administration, but I want to note for the record, as I have on 
other occasions, that never has there been any communication 
between the White House and myself about any issue that will 
come before our agency, whether it involves adjudication or 
rulemaking.
    This is a great agency, the National Labor Relations Board. 
It consists of competent and professional people throughout the 
United States, who are deeply committed to the rule of law; and 
although I believe that here in Washington in the 1980's and 
the early 1990's, the agency lost its way in terms of meeting 
the goals that are set forth in the statute, it remains a very 
important and great agency.
    In late 1995, our Board brought the backlog--which, as you 
know, reached 1,600 cases in the 1980's--to a historic low, the 
lowest it has ever been since 1974; and I think that this is 
one of the indicia of the success that we have been able to 
obtain over these 3\1/2\ years. Although affirmance by the 
courts of appeals of our orders is not necessarily dispositive 
of our success, we have achieved a record, I think, that we can 
be proud of, that compares favorably with our predecessors in 
obtaining affirmance of our decisions.
    I might say that these statistics which I have set forth 
are deflated by the fact that they don't include our 
settlements, which almost invariably provide for relief and, 
therefore, enforcement, at a minimum, in part; and they don't 
include consent decrees and summary judgments which also are a 
measure of our success in the circuit courts of appeals.
    As I have indicated in my statement, fiscal year 1996 
really represents the first year in which the Board appointed 
by President Clinton has had its success before the courts 
measured, and we have done, I think, appreciably better than 
the boards before us.
    When I came to Washington, I had as my objective three 
important considerations, three important objectives. No. 1, I 
set out to attempt to expedite our administrative process for 
unions and employers, involving unfair labor practice charges 
filed by both sides, as well as representation petitions. No. 
2, I attempted to induce through a number of mechanisms--the 
advisory panel that has been referred to by Congressman Towns--
an environment in which we could bring labor and management 
together and foster a greater measure of cooperation and 
substitute dialog and discussion for strife. I think that we 
have done that as well.
    Finally, I wanted to achieve a better balance in 
administrating our statute than has been done in previous 
years, and I think that this Board has acted as an impartial 
arbiter between the competing claims of labor and management. 
Let me just refer to a few of the specifics, some of which I 
have outlined in my statement.
    Section 10(j) of the statute: We have used 10(j), I think, 
with good results on 258 occasions since March 1994, and we 
have had a success rate on the order of 90 percent. I think 
that we have taken seriously the requirements of GPRA and tried 
to become a more effective agency. This agency historically has 
been concerned with the kinds of concerns that GPRA is focused 
upon.
    Since 1959, since the time of General Counsel Rothman, 
there have been timetables in the regions for the disposition 
of cases. We have moved effectively with our new computer 
system, our CATS system, the initiative that was undertaken in 
1994. We have pursued a number of strategies, superpanels, 
settlement judges, bench decisions, speed teams, time targets 
for our administrative law judges, all of which, I think, have 
made this agency more effective and able to accomplish its 
mission more effectively.
    Now, it may be, Mr. Chairman, that we have not articulated 
all of this as well as we should have in our mission statement. 
We are really learning as we go about the requirements of GPRA. 
This statement, I am sure, is in need of revision; and we 
welcome your input, Mr. Chairman, and the input of all of the 
members of this committee as to how we can make our mission 
statement more compatible with the purposes of the statute. We 
recognize that the purpose of the statute is to involve us in a 
process where we speak with the Congress, where we consult with 
the Congress, and where we get the input of the Congress.
    We have served our mission statement upon not only your 
committee, but all of the other relevant committees, and we 
stand ready to get your advice about how we can do better in 
this regard.
And I am pleased, Mr. Chairman, that you have invited us here 
to be with you and to testify about these matters, and I stand 
ready to answer any questions or comments--respond to comments 
that you and your colleagues may have.
    Thank you very much for your time.
    [The prepared statement of Mr. Gould follows:]

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    Mr. Shays [presiding]. Thank you, Mr. Gould. We are going 
to be asking questions as soon as we hear from Mr. Feinstein.
    My sense is that directing the Board, that you basically 
get your cases, once they have gone through your operation, Mr. 
Feinstein, and that most of the employees would be found in 
your operation as opposed to the Board; is that correct?
    Mr. Feinstein. That is correct.
    Mr. Shays. OK. Why don't you give us your testimony and 
then we will ask you both questions.
    Mr. Feinstein. Thank you, Mr. Chairman, for this 
opportunity to appear before the subcommittee to further 
elaborate a little on the question you just asked.
    The NLRB's statutory functions are vested separately in a 
five-member Board and the general counsel. The general counsel 
has independent supervisory authority over the agency's 
regional offices which, together with the general counsel's 
headquarters division, comprise nearly 90 percent of the 
agency's staff.
    Numerous commentators have recognized this unique 
gatekeeping function of the NLRB general counsel. Acting 
primarily through the regional directors and their regional 
staffs, the Office of General Counsel screens and thereby 
resolves thousands of nonmeritorious allegations each year.
    This year, as in the past, more than 60 percent of the 
unfair labor practice charges have been dismissed or withdrawn 
for lack of merit, putting those disputes to rest for good in a 
relatively short period of time. Our time targets vary from 
about 45 days to 10 weeks in resolving those cases.
    We have also achieved a settlement rate of over 96 percent 
in the remaining cases, and thereby have saved countless 
expense, both public and private dollars, in litigation costs. 
Last year, indeed, more than 90 percent of the charges filed 
with the agency were processed from beginning to end entirely 
in the field without any involvement by Washington.
    This is indeed a record of efficiency that is now being 
tested as never before. Reductions in the agency's staffing 
have presented enormous challenges, notwithstanding the fact, 
as the chairman has indicated, that----
    Mr. Shays. Excuse me. We are going to let you continue. We 
have a vote, and we will just go to it in a little bit, but why 
don't you finish?
    Mr. Feinstein. As I say, the staffing reductions have 
presented enormous challenges, and notwithstanding the fact 
that we have been taking numerous steps to stay on top of 
rising backlogs.
    Now, when I speak of backlogs, I am speaking of field 
backlogs, investigation and trial backlogs, the backlogs that 
measure the time a case takes before it receives attention by 
the Board in Washington. Only about 5 percent of our cases ever 
make it to Board consideration, and when I am referring to 
backlogs, I am referring to that part of our process.
    Our present staffing level of about 1,950 is the NLRB's 
lowest since 1962, notwithstanding the fact that our caseload 
in 1962 was--that our caseload now is more than 60 percent 
greater than it was at that time, when we had a comparable 
staffing level. Of course, the NLRB is required, the general 
counsel's office is required to process all cases filed with 
the agency.
    In addition to this growing number of cases per staff, the 
nature of the cases themselves has been growing in complexity, 
further adding to our workload burden. Because of all of this, 
I spend most of my time working with the excellent agency 
management and others within the agency to try to figure out 
how best to stretch our increasingly limited resources.
    We very much understand the importance of GPRA and the 
development of our strategic plan in meeting this challenge. 
Indeed, a number of the innovations that we have implemented 
over the past few years, I believe, have been very much 
informed by and consistent with the principles of GPRA, and I 
want to just briefly mention some of those initiatives that we 
have undertaken.
    We have eliminated significant layers of review within our 
process. We have cut back on space. That has included the 
closing of two offices and the cutback of more than 40 percent 
of the space in an additional seven offices. All 24 field 
locations have undergone significant space reductions, and our 
total field office space has been reduced by nearly 10 percent 
with further reductions slated in the future.
    We have cut back on travel significantly. These efforts 
have included increasing use of telephone affidavits, the 
development of questionnaires, and other kinds of alternative 
investigative techniques that have allowed us to significantly 
cut back on our travel costs. We have turned back to the 
government nearly 70 government-furnished vehicles, and their 
parking spaces have been eliminated in the last few years. The 
regional travel expenses during fiscal year 1996 were 44 
percent lower than the previous year.
    We have developed a program of resident agents, which makes 
us more efficient and more able to get to the cases quickly. We 
have also been in the process of developing an extensive 
computerization program which has entailed, in addition to the 
development of software systems and hardware systems, the 
restructuring of our office support staff personnel, training, 
and other significant efforts to bring about the transition to 
an automated case-tracking system throughout the agency.
    I might comment, Mr. Chairman on your opening statement 
where you spoke about these efforts. One of the fundamental 
principles of design of these systems is that they be flexible 
and open-ended precisely so that they can be made to be 
compatible with the developing strategies and objectives and 
goals required by GPRA. I recognize that we have not done an 
adequate job of describing that in our plan and to the GAO in 
assessing it. We have begun that process to better describe and 
communicate how that plan, we believe, is very much consistent 
with the dictates of GPRA.
    In addition to these economizing efforts, we have also 
attempted to focus on operational reforms that would best allow 
us to carry out the agency's responsibilities in enforcing the 
act. We have developed a case management system called Impact 
Analysis, which seeks to understand the priority of each case 
when it is filed with the agency, and in accordance with those 
developing priorities, better understand the resources 
necessary to devote to the processing of that case; and we have 
modified our time targets in the processing of those cases 
accordingly.
    There has been a renewed emphasis on all aspects of our 
case processing, including the processing of elections. We have 
attempted to implement greater consistency and uniformity so 
that all parties--employers, employees, unions--understand that 
when a petition for an election is filed with the agency, the 
agency will carry out its most important function of conducting 
that election in a manner that is consistent and uniform.
    Mr. Shays. Mr. Feinstein, let me just say, we have a vote 
in about 8 minutes. Do you think you can finish your comments 
in about 3?
    Mr. Feinstein. I certainly can.
    Mr. Shays. And then what we will do is recess--it will 
probably be about 15 minutes--and then we will come right back. 
We have to go vote.
    Mr. Feinstein. Again, I will skip through these quickly, 
and I will be happy to discuss them further in the question 
period.
    Other operational reforms have included the reinvention of 
our appeals office here in Washington, eliminating layers of 
review and prioritizing cases so that we have significantly cut 
down on the case processing time.
    Each of these three initiatives that I have just mentioned 
have received a Hammer Award from in the Vice President's 
National Performance Review earlier this year.
    Despite these continuing efforts to improve efficiency and 
effectiveness, because of the continued reduction in our 
staffing levels, backlogs at several stages of our case-
handling pipeline have continued to grow. In April 1997, there 
were approximately 7,600 unfair labor practice cases pending 
investigation, nearly double the number of just 3 years ago, 
which of course is of enormous concern to us.
    Our efforts over the past several years have relied very 
much on the principles and concepts of GPRA. In accordance with 
the act, we are now working on the formal development and 
refinement of our strategic plan, and in so doing, you 
certainly continue to be helpful in giving us further insight 
in how to approach the difficult operational issues facing the 
agency.
    Just in the past week we have been discussing our plan with 
the GAO, who have offered important guidance that has already, 
as you have indicated, led to modifications in the plan; and we 
certainly continue to seek the input of the GAO in developing 
and refining the plan. But more importantly, of course, we 
recognize and welcome the consultation with Congress in the 
development of this plan as the chairman has indicated. We 
recognize that we still have a way to go in this process, and 
we look forward to the consultations with the Congress and 
others in tackling these significant operational issues that 
face the agency.
    I thank you for the opportunity to be here today, Mr. 
Chairman.
    [The prepared statement of Mr. Feinstein follows:]

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    Mr. Shays. Thank you, Mr. Feinstein. What we will do, Mr. 
Gould and Mr. Feinstein, is vote and come back, so we will 
recess for about 15 minutes.
    [Recess.]
    Mr. Shays. I will call the hearing back to order.
    I am going to just have both of you describe to me where 
you interact and where your roles are clearly different. I 
mean, it is kind of interesting to me that you have one Results 
Act for the two of you, yet you are a separate Board.
    You are, in a sense, almost in a prosecutorial role. You 
funnel things through--funnel is a bad word. You basically--it 
flows through your agency to the Board, some things get there 
and some things don't. But describe to me where you would sit 
down and talk together as partners and where you would 
basically shut the door and not have dialog.
    Mr. Gould. Well, the area, Mr. Chairman, where we would 
shut the door and not have dialog and where the general counsel 
is in an adversarial position vis-a-vis respondents. He is 
independent of the Board insofar as his prosecutorial function 
is concerned. That is to say, he has the responsibility to 
investigate charges which are filed with our regions and to 
determine whether a complaint should issue, and then he is a 
party litigant in that posture before us.
    Once we issue an order, then his role changes. Then he 
becomes, and I recognize that there are some people who are 
puzzled about this, but this is the statutory scheme which you 
in Congress have created for us, he becomes our lawyer, and we 
consult with him, provide him with instructions on a wide 
variety of matters that we may want him to pursue, and he 
represents us in the circuit courts of appeals and in matters 
involving issues that might go to the U.S. Supreme Court.
    He also represents us if we vote to authorize injunctive 
relief in a so-called section 10(j) proceeding.
    So he is independent of us for the purpose of a 
prosecutorial function and acts as our lawyer, and we, of 
course, are the judicial component of the Board. It is our 
responsibility to interpret the statute and to provide guidance 
as the expert agency.
    On matters involving GPRA, we would, of course, discuss 
these issues together. We met yesterday to talk about this 
hearing. There is no bar between us insofar as our 
responsibilities under the statute are concerned.
    Mr. Shays. I am going to have you jump right in, but just a 
real quick answer. Would it be improper for you to discuss a 
case with Mr. Feinstein that was pending before you?
    Mr. Gould. It would be improper for me to discuss a case.
    Mr. Shays. Or any of your staff?
    Mr. Gould. Or any of my staff, or any part of the Board, to 
discuss a case that is pending before us where he is the party 
litigant in a matter before us; and I do not and would not 
discuss such a matter with him.
    Mr. Shays. I am tempted to ask who is first among equals 
here, because you responded first, but maybe I should already 
know the answer.
    Mr. Feinstein. Well, to further elaborate on the chairman's 
answer, he has described my role as prosecutor and where the 
divisions lie, that there is a wall. It really is a two-sided, 
two-headed agency. That is how it has always been described in 
the past. The general counsel side of the agency and the Board 
side of the agency, and the chairman has described, in terms of 
case processing, how that division works.
    I am one of the parties to every case, virtually every 
proceeding, that is before the Board, and for that reason, any 
communications with the Board about the case has to be in the 
formal proceeding. Any other kind of communication would be an 
ex parte communication. So there is a very pronounced, defined 
wall between the two sides of the agency for that reason.
    In terms of administering the agency, managing the agency, 
that division is likewise carried through. I have the 
supervisory, managerial, administrative task of directing the 
general counsel side of the agency, and that is indeed, as I 
suggested in my testimony, what I spend a good part of my time 
doing, is managing the agency, the regional offices, their 
operations, and the headquarters staff of the general counsel.
    So there is that clear separation between the general 
counsel's office and the Offices of the Board.
    The areas, as the chairman has indicated, where we are able 
to discuss and work together are the general issues that affect 
the whole agency. One of those, for example, would be the 
budget, where I consult with the chairman and the Board members 
about budgetary issues, because we have to obviously--we are 
given--we are not funded separately. The agency is funded as a 
whole, and once we get the funding, then it is allocated 
between the different sides of the agency.
    So there are issues that are not case issues, more of an 
administrative nature, where we are able to discuss and 
exchange thoughts about what is transpiring; and one of those 
issues is in the development of a strategic plan. The general 
counsel's office's efforts are focused on the general counsel 
side of the agency, which again, as I suggested, covers about 
90 percent of the staff of the agency; and the chairman's 
efforts and the initiatives that he describes have to do with 
efforts and initiatives that pertain to the Board side of the 
agency. But there are certainly issues which overlap, and we 
certainly do try to work together on those issues.
    Mr. Shays. I think this is obviously an interesting 
relationship.
    Mr. Feinstein. It is very interesting, Mr. Chairman.
    Mr. Gould. I will echo that.
    Mr. Shays. Who decides where you have disputes, who would 
referee an honest disagreement among two Presidential nominees 
confirmed by the Senate? I mean, you both go to the Senate, 
correct?
    Mr. Gould. That is correct.
    Mr. Feinstein. Correct.
    Mr. Shays. So you didn't hire Mr. Feinstein, he was 
selected by the President.
    Mr. Gould. Correct.
    Mr. Shays. Who decides disputes between the two of you? 
Where do you logically----
    Mr. Feinstein. Well, largely, Mr. Chairman, we try to work 
them out. If there are issues where there is disagreement, then 
the Board could take a vote on it. Of course there are other--
--
    Mr. Shays. Let me ask you this, though. So then the Board 
which you serve with, in a sense, oversees the operation?
    Mr. Gould. Well, the Board delegates this managerial 
responsibility to the general counsel, it is referred to the 
general counsel, and by virtue of its delegation, the general 
counsel administers the regional offices. Now, the Board has 
responsibility for the Board. There is no outside party that 
would referee a dispute between us.
    Mr. Shays. Maybe I am on sensitive ground, because maybe 
this happens more by agreement than----
    Mr. Gould. It does.
    Mr. Shays. But by law, is the counsel's office a creature 
of the Board?
    Mr. Gould. It is not a creature of the Board. Since the 
Taft-Hartley amendments to the law, the general counsel became 
an independent party for the purpose of his or her 
prosecutorial functions; and as I say, the peculiar thing--and 
this is the statutory scheme which Congress has created--is 
that once we issue an order subsequent to litigation before us, 
the general counsel on one side, the respondent on the other 
side, then the general counsel becomes our lawyer for the 
purpose of obtaining enforcement.
    Mr. Shays. I understand that part.
    You wanted to say something.
    Mr. Feinstein. Right. Just to say again, to further 
elaborate on what the chairman has said, the basic part of the 
responsibility of the general counsel is statutorily 
established under section 3(d) of the act which establishes 
this authority. There are additional responsibilities that the 
general counsel's office has exercised for 50 years that come 
through delegation from the Board.
    The chairman was referring to acting as the counsel, the 
lawyer for the Board after the Board has made a decision, for 
example, and there are some others. But the basic part of the 
general counsel's responsibility is statutorily based.
    Mr. Shays. I am going to have specific questions about 
10(j) and I am going to have questions about how the flow comes 
to the Board, so I will get into some more detailed issues.
    At this time I would like to recognize Mr. Towns, the 
ranking member.
    Mr. Towns. Thank you, Mr. Chairman.
    Let me begin with you, Mr. Feinstein. In your testimony you 
discuss the current backlogs at the regional level. Can you 
tell us how these backlogs adversely affect the employers and 
employees and threaten a healthy, growing economy?
    Mr. Feinstein. I think they adversely affect all concerned. 
They certainly adversely affect the parties to the dispute.
    What we have found is, the quicker that we are able to get 
to a case to resolve the issues, to conduct an investigation, 
amongst other things, the better able we are to settle that 
dispute. The longer we have a dispute before us, the harder it 
is to settle it. The parties get more locked in, the 
differences perhaps get magnified, the liability might increase 
if we are talking about back pay as part of the remedy, so that 
one of the definite advantages of our ability to get to our 
cases quickly is our ability to settle them.
    I think perhaps, more fundamentally, a workplace dispute 
that festers, a workplace dispute that lingers, is more 
destructive to that workplace for both employee and employer 
alike. The quicker that that dispute is resolved, the quicker 
we are able to come to a determination, and the quicker it goes 
away, the quicker that a productive relationship between those 
involved in that dispute is able to be resumed. So I think 
fundamentally the benefit of our ability to process cases 
quickly is that we resolve those cases quickly and the 
workplace itself is more productive.
    Mr. Towns. Let me ask both of you this, and I am not trying 
to put you on the spot, but I think that a hearing, we always 
want to try to learn as much as we can, and in some instances I 
think that we can--in terms of the Congress, can be helpful.
    Can you tell us what the Congress can do or what we have 
done to contribute to your backlog at the regional level, and 
what we can do maybe to help alleviate this?
    Mr. Gould. Well, the principal--of course, the principal 
problem we are confronted with is our budget, and because of 
the slight increase that we received in the last budget, we 
were able to hire a number of people in the regional offices. 
We need people to process the cases. We need new people, that 
are really the lifeblood of the agency; and the inability to 
obtain an adequate budget is a major factor in the backlog 
problem.
    Mr. Feinstein. If I could further elaborate, as the 
chairman has said, our agency is people. Eighty percent of the 
agency budget goes to salaries and benefits, another 10 percent 
goes to rent, and that leaves 10 percent over. So what our 
budget is about is basically paying the salaries of the staff.
    As I suggested in my statement, the staff of the agency now 
is at about the level it was in 1962 when we had a little more 
than half--we had a little more than half the number of cases 
we have now. The number of cases per staff member in just the 
last 8 or 9 years has increased about 30 percent.
    While what we have is a situation where each person is 
handling more and more cases, I have to emphasize again that it 
is not just a question of numbers here. As GPRA keeps telling 
us, we have to look at quality issues and at what is actually 
going on in those cases; and there are numerous indications 
that the cases that we handle are also more complex, difficult 
cases for a number of reasons. We have instituted screening 
mechanisms, changes in the economy itself have contributed. So 
we have fewer people doing more cases that are more difficult.
    That, I think, put very simply, is the reason that we have 
seen the backlogs increasing. Everything that we know about how 
the agency functions, while there are lots of efficiencies 
which we can and should and have been considering, the basic 
element in reducing our backlog has to do with our staffing 
level.
    Mr. Towns. Thank you very much.
    Let me just ask one more question, Mr. Chairman.
    This happened I guess really before you got there, Mr. 
Gould. In 1990, GAO issued a report which found that the NLRB 
headquarters was slow in processing cases. Can you tell me what 
steps the Board has taken to address the 1990 concerns of GAO 
and how these concerns affect the day-to-day work of deciding 
cases?
    Mr. Gould. Well, we have taken a number of steps, 
Congressman. One of them, the first one at the Board level and 
in Washington was to institute a speed team procedure whereby 
the staff of Board members are advised to try to identify cases 
that are factual or involve credibility issues and either a 
hearing officer or an administrative law judge has already made 
the determination on that, and to put those cases on the fast 
track. We have been successful in using the speed team 
mechanism in connection with 30 percent of our cases, to get 
them out in less than a couple of months.
    Second, we have instituted a so-called ``superpanel 
system'' where we have met the Board members every Tuesday and 
dealt with representation cases. Sometimes we are able to get 
those out in a matter of a week or so of the time that they 
come into Washington.
    Third, we have made certain reforms as they relate to 
administrative law judges. We have authorized our 
administrative law judges to issue so-called ``bench 
decisions'' where the issue is factual, it is a one-issue case, 
or where the law is very clear. They don't need to get briefs 
which take up 4 months of the time of the administrative 
process.
    We have also established time targets for our 
administrative law judges. We are in the process of creating 
time targets for the handling of representation cases after a 
union has been certified in a controversy, or has not been 
certified and a controversy arises out of the conduct of our 
election.
    Mr. Towns. I am really impressed with the things that you 
have been able to do.
    Let me ask this, Mr. Chairman. This is really my last 
question.
    It is my understanding that there is some concern about 
using mail ballots in union elections. I just find that to be a 
little strange. I think I recall, I think it is the State of 
Oregon conducted a congressional election, Senate, a senatorial 
election as well, by mail in 1994-1995. I have not heard any 
allegations of any kind of widespread fraud in those elections. 
Can you tell me how mail ballots would be helpful and what 
antifraud assurances are available, if you use mail ballots?
    Mr. Gould. Yes, Congressman. We have of course as an agency 
used mail ballots from the beginning of the agency in the 
1930's, and the National Mediation Board, functioning under the 
Railway Act, conducts all its ballots by mail and has done so 
for a decade.
    When I first came to the agency, one of the first cases 
that I was confronted with involved an election where some of 
the employees were on strike. The regional director wanted to 
have an election in the plant. Well, there was no way that the 
strikers could participate in the ballot. Some of them were 
working out of State. So we ordered, and it had not been done 
so previously, a mail ballot in that situation.
    Second, where employees' work schedules are irregular, 
where they are part-timers and they are coming in under a 
number of different schedules, sometimes in a number of 
different facilities, we have conducted mail ballots then.
    Third, of course, where the strain upon our resources is 
considerable, where vast distances exist between the Board 
offices and the plant premises, that has been a factor in my 
judgment in which it is appropriate to conduct a mail ballot.
    Now, we issued on June 20 of this year two lead decisions 
on this matter, and one of them was the London's Farm Dairy 
case, 323, NLRB No. 186, which was decided by us on June 20. We 
noted that under our mail ballot procedures, instructions to 
employees specifically state that they are to be marked in 
secret. They emphasize that it is important to maintain that 
secrecy and direct the employee not to show the ballot to 
anyone after it is marked. The ballots are typically mailed to 
an employee's home address, and in that setting, the employee 
has, as we said in London Dairy, ample opportunity to cast 
their ballots in accord with instructions and in complete 
privacy.
    During our entire 62-year history, there has been only one 
situation which was brought to us involving the invasion of 
privacy--in that case, a decision in 1994 where we found that 
the employer had invaded the employee's privacy. The National 
Mediation Board has had only, I think, three or four cases in 
the entire 71-year history that it has had conducting mail 
ballots. Actually, their statute has been in existence for 71 
years; they have only been doing this since 1934.
    So I think that our procedures which we have put in place 
protect the employee's right to privacy, and what we have done 
through the mail ballot is provide an opportunity to 
enfranchise workers who would otherwise be disenfranchised 
because of their inability to participate in the process at a 
particular facility.
    I am very proud of what we have been able to do in this 
regard, Congressman Towns, and I hope that we continue to use 
mail ballots in the circumstances that I have alluded to.
    Mr. Towns. Thank you very much. I thank both of you for 
your testimony. I want you to know that I am impressed with the 
things that you are doing. Thank you very, very much.
    Mr. Shays. Thank you, Mr. Towns.
    Mr. Snowbarger.
    Mr. Snowbarger. Thank you, Mr. Chairman. I have several 
different lines of questioning, so maybe I will take several 
rounds here or something.
    First of all, I just want to try to get a handle, we have 
talked about the number of employees that the NLRB has, and I 
am trying to get a handle on how workload is distributed here. 
How many employees are there here in Washington?
    Mr. Gould. In Washington, there are about 600----
    Mr. Feinstein. It is between 600 and 700, the general 
counsel side of the agency and the Board side of the agency. 
Someone is checking to see if we have an exact figure.
    Mr. Snowbarger. OK.
    Mr. Feinstein. 700 roughly in that area.
    Mr. Snowbarger. In your testimony you indicated that there 
are 1,950 full-time. Was that just on general counsel side, or 
is that the whole agency?
    Mr. Gould. The whole agency throughout the entire United 
States.
    Mr. Snowbarger. So of that 1,950, roughly 700 or maybe a 
little less than that are here in Washington?
    Mr. Gould. Yes.
    Mr. Feinstein. Right. And there are about 1,400 in the 
field.
    Mr. Snowbarger. OK. I guess my concern is that in your 
testimony you indicated that of the 39,000 charges of unfair 
labor practices last year, 90 percent of the cases were 
resolved in the field with no Washington involvement 
whatsoever, and yet you have more than a third of your work 
force located here in Washington. Yet I hear you complaining 
that you don't have enough folks out in the field.
    I am missing something here.
    Mr. Feinstein. Well, if I can, those 90 percent of our 
cases that are settled are the cases in which we have 
investigated or dismissed the case, of which 60 to 65 percent 
of the cases fall into that category. There are others where a 
determination is made to proceed, that the case has merit, and 
the case is settled in the field, either prior to the 
institution--prior even to the issuance of a complaint or after 
the issuance of a complaint and prior to an administrative 
hearing, or even during process of the administrative hearing.
    Mr. Snowbarger. So now we are up to what, 96 percent of all 
cases?
    Mr. Feinstein. No.
    Mr. Snowbarger. Well, 60 percent plus 96 percent of 20 
percent, it gets you awful close to the mid-90's, I would 
think. I haven't done the math on it.
    Mr. Feinstein. The point I was about to make is that some 
of those cases that settle, there is Washington involvement. We 
have a Division of Advice in Washington, for example, which is 
the arm of the general counsel's office that is used to 
consider the most difficult cases, the most complex cases, the 
cases in which the region is not quite sure where the law 
stands. So those cases might get sent in and then sent back to 
the region for a determination.
    Mr. Snowbarger. How many of the 700 employees would be 
advisors in that capacity?
    Mr. Feinstein. Working in our Advice Division? I think it 
is between 30 and 40, close to 40, counting support staff.
    Mr. Snowbarger. And in how many regions? I apologize for my 
ignorance here, but how many regions does the NLRB break down 
into?
    Mr. Feinstein. We have 33 regional offices and an 
additional 19 subregional offices.
    Mr. Snowbarger. And 40 advisors. It is like you could have 
an advisor per office out in the field and perhaps the days 
they weren't giving advice, they could be pursuing other 
things.
    Mr. Feinstein. Again, these are the people that are perhaps 
most expert in the complexities of the law, and they have the 
assignment of taking the most complex cases and developing the 
positions that the general counsel would take in those cases. 
It is also an office that allows us to have some uniformity and 
consistency in the development of approaches the general 
counsel's office would take.
    Mr. Snowbarger. So normally those 40 people all work 
together to come up with a solution for a particular problem?
    Mr. Feinstein. Well, in some cases, they may confer 
together, but each case is assigned to an individual within 
that office, and they work in teams and they work together. 
There are other----
    Mr. Snowbarger. That can be done by teleconferencing or 
something of that nature, or they need to meet together?
    Mr. Feinstein. As I say, it depends on the nature of the 
case. Each case is assigned to an individual, depending on the 
nature of case and the complexity of the issue--if I could 
proceed, others who work in Washington within the general 
counsel's office include an office that hears all of the 
appeals from the region about cases that are dismissed.
    Again, according to our statute, anyone has a right to 
appeal the dismissal of a case, so we have a division in 
Washington that hears, that gives, in effect, parties a second 
chance to make their case before the agency that their case has 
merit. The case gets an independent review in that office to 
determine whether or not the case has merit.
    This is an important aspect of the quality review, in 
effect, of our regional operations, and it gives us a chance to 
make sure that what is happening in the regions is consistent 
throughout the country and consistent with the perspectives of 
the general counsel's office.
    We have another division which is our Enforcement Division. 
As the chairman alluded to, the general counsel serves a role 
that once the Board has made its decisions, none of those 
decisions are self-enforcing. They all have to be enforced 
through action in the Federal courts, and we have a Division of 
Enforcement which handles all of our appellate court litigation 
in enforcing Board orders.
    We also have a special--we have a Supreme Court Division 
which handles appeals to the Supreme Court, and we have a 
division which handles other kinds of issues that might arise 
when the agency is involved in other kinds of legal actions. 
When novel things happen, we have some who work in that 
division as well.
    We also have a division which we now call our Compliance 
Division, which deals with cases once they have gone through 
the courts and there still is a failure of compliance; we have 
some experts in the field seeking ultimate compliance under 
those circumstances.
    We also have a Division of Administration which is the--we 
have a centralized Administration Office that does all kinds of 
things like procurement and personnel actions, and it also runs 
our entire computerization program. So there is an 
Administration Office as well, and that I have described as 
what is in the general counsel's office. There is an additional 
staff of about, I think 100 or 125 that are the Board staff.
    Mr. Snowbarger. OK. I understand that you have a number of 
functions that you have to perform. Again, I am still 
perplexed, though, that we have a third of your force here in 
DC when, by your statistics, we have between 90 and 95 percent 
perhaps of all cases being settled at the field level and then 
a complaint that we don't have enough people in the field, when 
they are already doing 96 percent of the work. So I am not 
quite sure why we are centralizing things.
    Let me----
    Mr. Gould. If I may, Congressman, our hiring since we have 
been in Washington has been in the field; we are 
decentralizing. We have hired people in the field and we have 
allowed our staff in Washington to attrit, so our whole 
movement has been toward the field.
    But I think there is another point that you must be aware 
of, and that is that when the case is settled or withdrawn, you 
are talking about a relatively abbreviated period, and----
    Mr. Snowbarger. That depends on your perspective, I think.
    Mr. Gould. Well, that is the fact. I am saying, compared to 
the litigation that is involved with our administrative law 
judges who come from Washington or a number of other places in 
the country and compared to the procedures that go on 
thereafter.
    Mr. Snowbarger. I understand that it can be quite an 
ordeal.
    Mr. Gould. So you are talking about work which is very 
important to our agency, but which, in terms of time, takes a 
relatively abbreviated period. But we are trying to put more of 
our resources into the field.
    Mr. Snowbarger. With again, mid-90 percent of these things 
either settled or dismissed or withdrawn, why do we have such 
backlogs?
    Mr. Feinstein. If I may, when we refer to backlogs, we are 
referring to--we have two essential measures of backlogs: that 
is, how long it takes us to get to the investigation of a case 
and how long it takes us to get to that case. What we have--so 
what we are talking about, in essence, is how long it takes us 
to process that case. Again, we have to process every case that 
comes to us.
    As I have suggested, the reason we have backlogs is because 
we have fewer people handling more cases and they are more 
complicated cases. It takes them longer to get to that case, to 
resolve that case, and that is the definition of our backlog.
    Mr. Gould. Also, Congressman, you know in the mid-1980's we 
did have in Washington an enormous backlog problem that was in 
the order, as I have indicated in my opening statement, of 
1,600 cases. We have brought that down in late 1995 to the low 
300's, and a historic, all-time low since 1974.
    So I think that our record since our term in office has 
been, relatively speaking, a very good one in that regard here 
in Washington.
    Mr. Snowbarger. We have a vote to get to in just a minute. 
Let me see if I can ask one more question.
    We keep referring back to staff loads way back when; I 
don't remember the timeframe that you are going back to to 
compare staff loads and caseloads. I guess my question is, 
whatever this time period was that we were comparing to back 
there, how many of those cases were as a percentage, were 
deemed to lack merit or settled? Would it be roughly the same 
percentage?
    Mr. Gould. The merit factor and settlement factor has 
remained very constant throughout the history of this Board. 
The merit factor and the general counsel, of course, makes a 
determination as to whether the case is going to--unfair labor 
practice case is going to be prosecuted has remained around 30 
percent, or the low 30's, mid-30's, in that area. The 
settlement rate has remained very constant.
    Now, the one thing that we have done since we came here is 
to recognize that while we have always done a very good job in 
settling cases in the region, historically the agency did not 
do as well once the battle lines were drawn and once the matter 
was about to go before an administrative law judge; and that is 
why we introduced the settlement judge concept, which has 
enjoyed a great deal of success over these past couple of 
years. We have used it in more than 200 cases and settled 
approximately 140 of them, and those would be cases which would 
consume weeks and, in some instances, months of both the 
agency's resources--the taxpayers', if you will, resources, as 
well as those of private parties.
    So our record historically in the settlement area has been 
good. What we have done is improve upon it by focusing upon the 
need for settlement at other stages of the process where--
beyond the early investigative stage.
    Mr. Snowbarger. Is it fair to say that if the percentage of 
nonmeritorious claims has stayed the same and yet you have had 
a dramatic rise in the number of cases, that means you have 
also had a dramatic rise in the number of nonmeritorious cases?
    Mr. Feinstein. No. The caseload itself, the number of 
charges brought before the agency, peaked in around 1980, and 
it came down somewhat steadily until 1985 and 1986. Since about 
1988 it has stayed about level--come up a little, gone down a 
little, but stayed. So the number of cases brought before the 
agency has stayed the same.
    What has changed significantly is our staffing level. That 
has come down, so we have less staff doing the same number of 
cases. But within the cases that we have, as the chairman has 
indicated, the merit factor has remained essentially the same, 
the settlement rate has remained essentially the same; and our 
litigation success rate has remained essentially the same. The 
basic indicators along those lines have all remained 
essentially constant.
    Mr. Gould. Our average productivity of an employee at the 
Board has increased in this past decade by 30 percent, and our 
administrative law judges who are handling this caseload, which 
has remained, as the general counsel indicated over this past 
decade constant, our staff of administrative law judges has 
been halved since the early 1980's. We did not hire one single 
administrative law judge from 1981 through 1994.
    Mr. Snowbarger. Mr. Chairman, I have some other questions, 
but I think----
    Mr. Shays. What we will do is, we have another vote and we 
are sorry that we have these interruptions. Some days we don't, 
but today we have a lot of votes, so we will recess for about 
10 to 15 minutes.
    [Recess.]
    Mr. Snowbarger [presiding]. At the chairman's suggestion, 
we are going to go ahead and get started and try to wrap up 
this round of questioning. He will be back shortly. And since I 
am the only one here, I guess I will do the questioning.
    I would like some help. Although I have been an attorney 
and have been in private practice, I have not handled a labor 
case, an NLRB case, and so I need some questions answered, kind 
of about the process, so that I can get a better handle on 
this.
    How does one of these cases start? Normally a worker comes 
in, I presume, and files a complaint?
    Mr. Gould. Any person, any person; it could be a worker, it 
could be an employer. Our rules say that any person may file a 
charge with our agency; and it would be filed in one of the 
regional offices or one of the subregional or resident offices.
    Mr. Snowbarger. I presume that person has to be aggrieved 
in one way or another.
    Mr. Gould. No. The rules say, relating to the filing of a 
charge, do not provide for any kind of standing to sue 
requirement. A party may file a charge and the general counsel, 
through the regional director, is obliged to investigate that 
charge and to determine whether there is cause to believe that 
a violation of the statute exists. That is in connection with 
unfair labor practice cases.
    The representation cases, to which the general counsel is 
not a party, are filed through petitions which can be lodged by 
an individual employee, a union or employer, in the field 
offices, regional offices also.
    Mr. Snowbarger. Well, I guess--I really didn't want to 
pursue this at this point, but I guess I will.
    If anybody can walk in off the street and file a complaint 
and we are finding out that 60 percent of these are 
nonmeritorious claims to begin with, is there something we need 
to do with our labor laws that would prevent someone that does 
not have a legitimate grievance from filing these claims?
    Mr. Gould. Well, the difficulty, as I see it, Congressman, 
is that, you know, this question of who is aggrieved and who 
has standing to sue is really a very big area of litigation in 
our courts as a general matter. You know that there are many 
Supreme Court decisions on this issue. The whole thrust of the 
handling of cases at the regional level is informality, 
handling them in an expeditious way. We are not really involved 
at that stage in litigation.
    Now, the general counsel becomes a party and the respondent 
becomes a party if the general counsel issues a complaint.
    I would also point out----
    Mr. Snowbarger. Let's go on to that next stage, though.
    Mr. Gould. Well, if I could just complete my answer, we 
also have in the regions an information officer, and an 
information program, which is designed to weed out complaints, 
charges that have no merit or have nothing to do with our 
statute.
    For instance, a lot of people are under the impression 
that, well, if they have a grievance against their employer or 
if the employer is dissatisfied with his or her employees that 
they can lodge a claim with our agency, and we have information 
offices at all of our regions which are designed to weed these 
out.
    Mr. Snowbarger. Is a complaint required to go through the 
information officer?
    Mr. Gould. There is no requirement to go through the 
information officer.
    Mr. Snowbarger. So if you have already predetermined that 
you want to file a grievance----
    Mr. Feinstein. This was a program that we instituted in 
1980, and I think we have had considerable success with it. It 
is designed to deal with the person calling for information or 
coming into the office wanting to know what their rights are. 
We get about 200,000 such inquiries a year, only 5 percent of 
which result in complaints. We think that that is a significant 
filter of nonmeritorious or irrelevant cases, and is one of the 
contributing factors to the growing complexity of our cases, 
because these kinds of irrelevant or inappropriate charges are 
filtered out.
    Mr. Snowbarger. And that is not included in the 60 percent 
that you talked about earlier?
    Mr. Feinstein. That is correct. Those are numbers that 
relate to charges that have been filed.
    If I could amplify on one point, it seems to me that one of 
the key successes of our agency, unlike some other agencies, is 
the historic ability to get to that charge very quickly. Our 
historic time line has been 45 days to make that merit 
determination.
    Now, it requires a lot of work within that 45-day period. 
We have--obviously the case has to be staffed and investigated. 
We are not doing as well as 45 days anymore because of all of 
the factors I have mentioned, but it is still within a 7-, 8-, 
9-week period.
    From the filing of that charge, the nonmeritorious charges 
are weeded out of the process, so that within a relatively 
short period of time, any charge that lacks merit is disposed 
of and the case is closed. And that is again--as I suggested 
earlier, I think one of the success stories of the agency is 
the ability to deal with the nonmeritorious cases quickly.
    Mr. Snowbarger. I would agree that is probably a success 
story for the agency. I think it may be a terrible record for 
the law if we have that many people who feel that they are 
entitled to make claims, and it turns out that they don't have 
any merit.
    Mr. Gould. Well, if I could----
    Mr. Snowbarger. Let me get some questions in on other 
cases. I am going to run out of time--in fact, I have, and I 
appreciate the extra time by the timekeeper.
    Let's go on to the next step. We have a claim that has been 
filed. Now, can you kind of walk me through what happens then?
    Mr. Feinstein. Yes. It is assigned to an investigator who 
immediately contacts the party filing the charge to present 
evidence to sustain the allegations and the charge, and the 
parties are contacted and it is investigated. Again, we have 
specific time targets for the completion of that investigation, 
and now we also have a process of trying to prioritize that 
case somewhat, and the resources that we will devote 
immediately depends somewhat on that.
    A determination is made whether or not the case has merit. 
There is what we call an agenda meeting, and there is a 
decision made, that the regional director has responsibility 
for, as to whether the case has merit or not. If it doesn't 
have merit, it is dismissed. If it does have merit, the first 
thing that we do is try to settle it. If we are unable a settle 
it, a complaint will issue alleging a violation of the act.
    Mr. Snowbarger. How many of these are settled before the 
complaint is issued? Do you have any feel for that?
    Mr. Feinstein. I would--again, this would be a rough 
estimate; I don't know. Of the cases that have merit, I would 
say, oh, a quarter to a third perhaps are settled.
    Mr. Shays. Let me just say, if some are here who can assist 
us in this, I think it might be helpful to have them testify. I 
mean, these are questions that you shouldn't be surprised that 
would be asked, so----
    Mr. Feinstein. Well, we are looking for a specific number 
of the percent of precomplaint settlements.
    Mr. Shays. I just want to say, there is nothing 
embarrassing about having other staff respond to these 
questions, so if there is other staff that has been sworn in 
that can answer these questions, I would be happy to have them 
come sit up here. You weren't sworn in?
    Mr. Snowbarger. One of the few.
    Mr. Shays. Well, let me do this. Do you have a few 
questions along this line?
    Mr. Snowbarger. Well, they are actually trying to walk me 
through the process. It seems we get into deep holes every time 
we take a step.
    Mr. Feinstein. If I could continue, a complaint would 
issue, and again, settlement efforts continue, and the 
complaint is set for a hearing before an administrative law 
judge. If we are not able to settle that case before that time, 
the case would proceed to a full hearing before an 
administrative law judge in which the general counsel 
represents the charging party and there is a respondent to 
reply.
    The administrative law judge hears the case and issues a 
decision, an administrative decision of the ALJ. That decision 
is appealable to the Board here in Washington. After the Board 
renders its decision, that decision can only be enforced 
through action in the Federal courts.
    Mr. Snowbarger. OK. Now, who pays the cost of pursuing 
these allegations--the investigation, the complaint, pursuing 
it through the ALJ? Who pays the cost of those?
    Mr. Gould. Insofar as the--of course, insofar as our agency 
is involved, the taxpayer pays the cost of it. Insofar as 
private parties are concerned, they pay the cost of it.
    Mr. Snowbarger. OK. So we have the business paying its own 
attorney's fees, the aggrieved party, presuming there is a 
valid grievance, he is having all of his expenses paid by the 
taxpayer.
    Mr. Gould. Let me just make two additional points. One is 
that, of course, given the fact that we are an administrative 
agency, you do not have to be a lawyer to be--to appear before 
the agency and frequently charging parties are represented by 
lay people. And the other point I would like to make is that 
there is a statute which allows a party to recover attorney's 
fees where it is found that the general counsel did not have a 
substantial reason for pursuing the matter in the first 
instance.
    I would like to quote from the language of the statute, 
``but in a limited number of circumstances, attorney's fees 
where the person does use an attorney before the agency are 
recoverable.''
    Mr. Snowbarger. How often does that occur?
    Mr. Gould. It occurs--I don't know what the precise number 
of cases is. It occurs obviously in a small minority of cases, 
because generally the general counsel has a substantial reason 
for proceeding.
    Mr. Shays. Let me do this. Mr. Sanders will be recognized, 
and we are just going to come back and just have you walk us 
through. You will be able to finish your line of questioning. 
We will go back and forth.
    Mr. Sanders, you have been very patient and you have as 
much time as you want.
    Mr. Sanders. Thank you very much, Mr. Chairman.
    Gentlemen, it is my understanding that the Board has used 
more procedures which call for voluntary compliance. Can you 
tell me how encouraging voluntary compliance in settlements 
aids in the helping of the economy and the efficiency of the 
agency? In other words, what is the short-term financial 
benefit and what is the long-term financial benefit of 
encouraging voluntary settlements?
    Mr. Gould. Well, it is enormously important because what it 
does is move our society away from litigation and lawyers, 
which are time-consuming, and impose a burden both upon the 
taxpayers and upon private parties.
    What we have done is--and we think that this is of enormous 
benefit to the economy. What we have done is to discourage 
litigation through our settlement judge initiative, through our 
bench decision initiative, and also through devising approaches 
toward the resolution of controversies which----
    Mr. Sanders. Would I be correct in assuming that expedites 
the process as well?
    Mr. Gould. It does expedite the process as well, 
Congressman, particularly the bench decision initiative that I 
alluded to.
    Mr. Feinstein. If I might add one other thing, we would be 
lost, really, if we did not have a settlement rate in the 90's. 
Each percent in our settlement rate we have estimated saves us 
$2 million.
    Mr. Sanders. Is that right?
    Mr. Feinstein. Right. Each fluctuation up or down in our 
settlement rate has a $2 million consequence, either up or 
down.
    Mr. Sanders. OK. Much has been made of the Board's 
increased use of 10(j) injunctions. Can you tell me how the 
issuance of a 10(j) injunction helps in resolving a labor 
dispute?
    Mr. Gould. Well, it helps because so many of the cases 
where we speak about--talk about the possibility of 10(j) 
result in voluntary settlements where the parties don't even 
have to use our normal unfair labor practice machinery, let 
alone the judiciary.
    The rate of settlement, as well as success for the Board, 
in 10(j) cases in Federal district court is very high. We 
either win or settle in the high 80's or 90 percent of the 
cases in which we pursue 10(j). Of course, what 10(j) does by 
producing a settlement in those contexts is to really make 
unnecessary the very arduous and time-consuming process that 
otherwise needs to be pursued, which in many instances would 
take 3 or 4 years of litigation. 10(j) moves very quickly 
compared to normal litigation and thus is a savings to both the 
parties and the judiciary.
    Mr. Sanders. Thank you. I apologize, I have been in and 
out, and if you have answered this question, just tell me; all 
right?
    It is no secret that business interests have accused you of 
being biased in favor of labor at the expense of business. Do 
you think--is it your judgment that that is a fair charge and 
how would you respond?
    In other words, presumably your job is to be fair and you 
are being attacked for not being fair. Can you respond to that?
    Mr. Gould. I would say two things, Congressman. One is 
that, in the first instance, I don't think it is accurate to 
say business interests have attacked us. Some business 
interests, those who, I think, are recidivist employers, the 
rogue employers who do not believe in compliance with our 
statute.
    Many business interests have spoken favorably, supported us 
in the appropriations process and have said that while they 
disagree with some of our approaches to the statute, they 
believe that we have functioned in a responsible manner. But I 
think that the proof of the pudding lies in the fact that we 
have acted as an impartial arbiter, we have reached out to 
representatives of both labor and management.
    I mentioned my advisory panel, which is composed equally of 
union and employer representatives. We have facilitated 
cooperative initiatives through our interpretations of section 
8(a)2. I think that the hallmark of my chairmanship has been a 
balanced approach to labor and management which takes into 
account the competing interests of both.
    Mr. Feinstein. If I may, Congressman, in terms of the 
operation of the general counsel's office, we have a number of 
means of trying to assure neutrality and evenhanded treatment 
of cases. We do an extensive quality review in each of our 
regional offices each year in which actual files are examined 
to see the thoroughness and the completeness of the 
investigations and that all of the relevant procedures and 
necessary procedures are employed.
    The statute itself, I think, builds in some measure of 
neutrality, and that is that any Board decision, as I mentioned 
before, has to be enforced in the courts. Our success rate in 
the courts has held steady. It is consistent with past success 
rates, another measure, I believe, of the evenhanded record of 
the current administration of the agency.
    We also have an appeals process whereby the decisions of 
the regional offices are appealable to Washington for further 
or second level of review, if the party so desires it. Our rate 
of appeals, of the acceptance of appeals, has also stayed 
consistent.
    Mr. Sanders. Do you think the evidence is pretty clear that 
based on the work that you have done and what you have 
accomplished, you are not being prejudiced?
    Mr. Feinstein. Yes. I just wanted to note these specific 
measures and what we have to gauge them.
    Mr. Sanders. Let me just ask another question, and I should 
give you a little background and tell you that I am very 
unhappy with the current state of labor law in America. I think 
it--and that is obviously not your problem. Your problem and 
your job is to enforce the existing law.
    I think, in fact--in terms of the needs of working people 
in this country who want to join unions, it is in fact very 
difficult for them to do so. Maybe you would comment on this 
scenario.
    I have talked to workers who have been active in trying to 
form a union, and they tell us that the people who are working 
hard to form a union are fired. They tell us that sometimes 
after they negotiate a first contract, the company refuses to 
sit down and in good faith negotiate, and people then give up 
in a year or two. And there are some people who are now telling 
me that in order to form a union, they don't even want to go 
through the NLRB process because it just takes so long, that 
you are understaffed, and they think that all of the appeals 
that the well-funded companies have make it almost impossible, 
if you can believe this, in the United States of America to 
form a union.
    You know, for example, in Canada, if 50 percent of the 
workers in a shop, plus one, sign a card wanting a union, they 
have a union. That is the end of the process. And it is my 
understanding that labor law in the United States is far more 
backward, far more antiworker than it is in any country, 
compared to any country in Europe or Canada.
    Do some of those workers have a concern?
    Mr. Gould. Well, I think that since the 1970's, 
deficiencies in our labor law, as written, have become more 
apparent. The ability to delay our processes exists in the 
procedures. The main tool in appropriate circumstances that we 
have is section 10(j) where, in appropriate circumstances, we 
can effectively combat the problem of delay. But the situations 
that you refer to--the dismissal of employees, the inability to 
negotiate a collective bargaining agreement in a fledgling 
relationship--is a very difficult one and one which in some 
instances highlights the deficiencies of our law. I have long 
advocated reform of our statute, which would overcome some of 
these problems.
    Mr. Sanders. Mr. Snowbarger, a moment ago, wanted you to 
run through a scenario, and that is not a bad way to learn 
information, but let me pose another problem. Let us just say 
Mr. Snowbarger was a militant worker who wanted to form a 
union.
    Mr. Snowbarger. We do have fantasies around here, don't we?
    Mr. Sandler. And I was an employer who had a lot of money, 
was prepared to pay big bucks for some antilabor consultant, 
which is going on all over the country, and I fired him, and 
his union said that was unfair. How long could I stall that out 
to get him his job back and get him his compensation if he did 
what an American citizen has the constitutional right to do?
    Mr. Gould. Well, on the order of 3 years or more, it 
takes--we have described the various steps of this process. You 
file a charge, you investigate it, you issue a complaint, you 
hold a hearing, you take an appeal from the decision by the 
administrative law judge, you come here to Washington a year or 
so, or a couple of years later, and then you go to the circuit 
courts of appeals. Then a petition for----
    Mr. Sanders. So if Mr. Snowbarger is a worker earning $7 or 
$8 an hour and he forms a union, or tries to, and he is fired, 
it could take--and I have all kinds of resources and lawyers 
behind me--it could take him 3 years before he got his job back 
or was compensated?
    Mr. Snowbarger. Will the gentleman yield? Who would be 
paying my legal costs at that point in time?
    Mr. Gould. You would not need to, if you were a worker, 
you----
    Mr. Snowbarger. So what we have is this rigid----
    Mr. Sanders. Let him answer the question.
    Mr. Shays. Gentlemen, gentlemen, excuse me, excuse me. This 
committee has always allowed everyone to ask questions and 
always allowed witnesses to answer. You are on your 11th minute 
and we have to go through 15.
    I do think he should answer the question, but I will take 
control.
    So the question you asked was----
    Mr. Snowbarger. Well, we have talked about the large 
company with the large legal budget and all of this kind of 
thing. Who is paying my costs as the supposedly aggrieved 
employee?
    Mr. Gould. You would be responsible for your costs, or if 
you had a union that was willing to take up your cause, it 
might pay for the cost. It would depend on the individual 
circumstances.
    Mr. Snowbarger. OK.
    Mr. Sanders. All right. But my only point was that if you 
have somebody who is trying to get by on $7 or $8 an hour, who 
loses his or her job for a period of years, that person is at a 
real disadvantage; and every employer knows it. I mean, I have 
seen, I have heard of cases where even after a worker has 
actually managed to form a union, the company refuses to 
negotiate with them, and workers get beaten down and they 
finally give up.
    So I would say that it seems to me, based on my knowledge 
of the situation, that we need sweeping labor law reform. My 
impression is that Mr. Gould and Mr. Feinstein and the others 
are doing the best they can with the existing law, but the 
truth of the matter is, the law, in my view, is very prejudiced 
toward workers in this country, very much in favor of those 
people who have the resources, the financial resources, who are 
antiunion; and the result--the proof is in the pudding, the 
proof is that time after time, workers who are trying to form 
unions are unable to do so. Hopefully, we are seeing some 
changes in that regard.
    Mr. Gould. If I may, just in response to Congressman 
Snowbarger again, the--I said that you would pay your own costs 
and fees, and you would if you had your own lawyer or if the 
union became your lawyer. If the general counsel issues a 
complaint on behalf of a union or an employer, the general 
counsel proceeds with the matter; and the charging party, be it 
an employer or a union, would have to find some way, if they 
wanted to use counsel, to pay their own costs.
    Mr. Feinstein. I want to mention that about one-quarter of 
the cases before the agency are cases that are initiated by 
employers, where the employer is the charging party.
    Mr. Sanders. So here I am, Mr. Snowbarger, trying to 
protect your rights to go out and form a union as the low-wage 
worker. You may lose the next election, so you should be more 
sympathetic with what we are trying to do.
    Mr. Snowbarger. Very frankly, to the gentleman from 
Vermont, I find it easier to get a job in a right-to-work State 
than I do in a labor State anyway, so I will stay in Kansas.
    Mr. Sanders. Some of us will try to make legislation 
available so you do have the right to do that.
    Mr. Snowbarger. I do agree with the gentleman that we need 
major revisions in the labor law.
    Mr. Sanders. But you are not going to support my 
legislation probably. OK, thank you very much.
    Mr. Shays. Mr. Barrett, do you have any questions?
    Mr. Barrett. No questions, Mr. Chairman.
    Mr. Shays. OK. I have a general bias that when Republicans 
are in control, we walk in the moccasins of people who are 
trying to run a business and trying to--trying to make a 
payroll, and so we tend to be a little more sympathetic to that 
view, because those are the moccasins we walk in; and when 
Democrats were in control, they just seemed to have a little 
more sense of what some workers, particularly in some areas, 
they have really struggled in.
    And so I tend to think, when Republicans are in, they have 
a slant one way, and when Democrats are in, they have a slant 
the other way. I think that is unavoidable, based on the 
experiences we have in our lifetime.
    Mr. Feinstein, how do you--let me back up and say, you have 
immense powers, because those cases you choose not to move as 
quickly on, those cases you choose not to prosecute, you in a 
sense have become a judge, as most prosecutors have, so I know 
you know that is an immense power.
    How do you get to make sure that you are trying to walk in 
someone else's moccasins and be as fair as possible? What 
process do you try to instill in your staff?
    Mr. Feinstein. Well, I think that is obviously an important 
question, and I know the agency has historically--the general 
counsels through the years have taken very seriously, for 
exactly the reason you have suggested, that the--that 
responsibility to make that initial determination as to whether 
a case has merit or not.
    We have, as I began to suggest, very just processes, 
systems, if you will, within the agency to try to assure the 
quality of that decision, to try to assure the consistency and 
that that decision is based on all of the available facts, and 
that that decision is indeed the right decision. We have a 
process of reviewing files in all of our regional offices on an 
annual basis.
    Mr. Shays. How many regional offices do you have?
    Mr. Feinstein. Thirty-three regional offices and 
subregional offices. Some of those have satellite offices so 
that there is a total of 52. We have random audits of files 
conducted by people who have expertise in that area in each of 
these offices to get a sense of what is happening in those 
cases and to make sure that the offices are following----
    Mr. Shays. If you reject a case, dismiss a case, then that 
can go directly to the courts?
    Mr. Feinstein. No. If an individual case is dismissed--and 
that was going to be the next thing I mentioned--there is a 
right of appeal to our Office of Appeals here in Washington and 
that case gets a de novo review. We have people who have 
developed expertise in that area.
    Mr. Shays. And your offices are out of----
    Mr. Feinstein. The general counsel's office gives a 
thorough review of that case and makes a determination either 
to sustain the decision in the region, to dismiss the charge, 
or they can overturn the decision in the region. As I say, we 
consistently have from 3 to 5 percent reversal rate in that 
appeals process.
    We also, again, as I have suggested, have another 
significant check on the agency's deliberations: how we fare in 
litigation both before administrative law judges and ultimately 
in the courts. If the Board has had to decide the case, that 
case is appealable, in effect, into the Federal courts, and our 
success rate in that litigation, I think is another important 
of the ability that we have to oversee the efficacy, the 
appropriateness of the decisions that are being made.
    We also--as you alluded to, we measure the number of cases 
where there is merit and where there isn't merit to get some 
sense of the consistency of those kinds of determinations.
    All of these suggest different ways that we have tried to 
do the best we possibly can to assure that that original 
decision on whether or not to go on a case is the right 
decision, is the appropriate decision.
    Mr. Shays. Now, when you take over from a previous 
administration that happens to have been the other party--in 
this case, it would have been the Bush administration, they 
probably had an emphasis that went in one direction.
    Where did you change the emphasis in terms of the kinds of 
cases you wanted to see move more quickly and those that you 
didn't?
    Mr. Feinstein. First of all, the terms of general counsels 
don't directly coincide with administrations. We serve a fixed 
4-year term, so the previous general counsel, who was nominated 
by President Bush, served a year-and-a-half into the----
    Mr. Shays. But then there was a change?
    Mr. Feinstein. Right. And I am sure that there are 
differences in approach. Every general counsel brings----
    Mr. Shays. There was criticism by labor that certain cases 
weren't moving along. I have to believe that--were you the next 
appointment from the Bush administration?
    Mr. Feinstein. I was appointed by President Clinton.
    Mr. Shays. Right. So you were the first appointment done by 
the Clinton administration?
    Mr. Feinstein. Yes.
    Mr. Shays. So you were from this direction to this 
direction, but, there is nothing wrong with that. I just want 
to know, when you came in, did you agree with certain 
criticisms that said, yes, we weren't paying enough attention 
here and we should do something here; or did you just carry on 
just like the previous administration had done?
    Mr. Feinstein. Well, my emphasis was certain areas of 
priority concern. The first one was to be more consistent in 
our ability to get to an election after the filing of a 
petition so that we would have a more uniform record in that 
area. Another area of priority concern was the uniform 
deployment of appropriate injunctive relief.
    What we had found--one of the things that really stood out 
to me--is that in seeking injunctive relief about a quarter of 
our offices, maybe eight or nine of our regional offices, were 
doing 70 or 80 percent of the injunction cases, while the rest 
of the offices were doing little, if any, injunction work.
    So we decided--we determined that there was a lack of 
consistency among the offices, and so what we did was, we put 
together a manual based on documents that had long been the 
documents that were informing or processing in this area. We 
did training, we restructured our offices a little to make sure 
that injunctive relief was being considered in all of the 
regions, not just in a few; and that, I think, is the reason 
that we sought increased utilization.
    What happened was not so much a change of approach, it was 
the fact, in terms of the standards under which we would seek 
injunctive relief, but we had offices that for various reasons 
had not been considering that.
    We also made an emphasis on quality, what could we do to 
improve quality?
    Finally, we implemented the program of impact analysis, but 
that was a response to the funding situation. As our backlogs 
were going up, we got concerned.
    Mr. Shays. Let me get to that point. When you have a lead 
case--you basically have like seven or eight cases that are 
similar, you are not quite sure of the outcome--do you take one 
of those cases and move it forward to the Board--tell me what a 
``lead case'' means.
    Mr. Feinstein. I am not sure what you are referring to.
    Mr. Gould. Mr. Chairman, you are confusing his role with 
mine.
    Mr. Shays. OK. Let me say this--I don't want you to answer 
yet. Just describe to me the whole issue--I am going to make an 
assumption, Mr. Gould, that you have a number of cases that are 
the same, and you group them together; but I will come back and 
have you explain if that is right or not. Just explain to me 
what ``impact analysis'' actually is.
    Mr. Feinstein. Impact analysis was largely a response to 
the growing backlogs. We wanted to make sure--we wanted to make 
sure that the cases that were taking longer than the target 
time for that case were the cases that were perhaps the least 
time sensitive. Impact analysis is an effort to say, there are 
some cases, clearly, where timeliness is of greater importance 
than others; let us make sure we are focusing resources that 
accomplish a more timely result in those kinds of cases.
    There are certain cases which affect far more people than 
other cases. There are certain cases that are much more 
critical to the process of collective bargaining itself than 
others.
    Mr. Shays. Those would set trends for other decisions?
    Mr. Feinstein. No, not necessarily set trends. There is 
more a notion of the effect, the real-world effect, if you 
will, of the case. We could have a case in which the 
determination of the case determines the rights of 1,000 
employees or more.
    Mr. Shays. Do you have categories 1, 2 and 3?
    Mr. Feinstein. Right.
    Mr. Shays. Now, which gets the highest priority?
    Mr. Feinstein. Category 3.
    Mr. Shays. And tell me what fits into 3.
    Mr. Feinstein. Well, they are cases generally that have--
that affect the most people, that are most central to the 
process. An example, as I started to say, might be a case in 
which the rights of 1,000 people are at stake; or it might be a 
violence case in which there is some violence on a picket line 
that is occurring, and a determination is made. It is important 
that we get to this case before we get to a case, for example, 
where there is collective bargaining ongoing, and someone is 
seeking information, and one party feels that they haven't been 
provided enough information. Rather than saying, we are going 
to get to both of those cases at the same time, we are going to 
say, no, we need to get to the former case more quickly.
    It took us about a year for a task force of career people 
throughout the agency making a determination as to what were 
the kinds of decisions to go into making these kinds of 
priority assessments, and then once the assessment was made, 
how we could focus the resources.
    Another point to this process is, there are certain kinds 
of cases where we wanted to utilize different kinds of 
investigative techniques, questionnaires or telephone 
affidavits or other investigative techniques that might be 
appropriate to a case of that nature, but not all cases. So we 
wanted to be able to make those kinds of differentiations 
between cases as well.
    Mr. Shays. I am going to finish with just these two 
questions, but just a quick answer to this.
    A timely case is a category three still? Does category 
three get your highest attention?
    Mr. Feinstein. What we have done is adjusted the time 
target. The time target for a category three case is 7 weeks; 
the time target for a category two case is 11 weeks, and the 
time target for a category one case is 15 weeks.
    Mr. Shays. So whether it is for when you render a decision 
to bring it to an administrative judge----
    Mr. Feinstein. No, to the time we complete the 
investigation and make the determination as to whether the case 
has merit and to issue a complaint, if appropriate, or to 
dismiss.
    Mr. Shays. OK. Just since I raised it, the whole issue of 
the lead case, and then I am going to--Mr. Kucinich, do you 
have questions that you would like to ask? We are going to move 
on to the next panel, if we don't, in just a second.
    Mr. Barrett, just 1 second.
    Since I threw out ``lead case'' as an issue, tell me the 
concept of ``lead case.''
    Mr. Gould. Mr. Chairman, what we try to do where there are 
a number of cases congregated on a particular issue, we try to 
select a case or a few cases which we think, when we get the 
answer to it, will govern a number of other cases that are 
pending with us, and that is ``lead case.''
    Mr. Shays. OK. What would be the basis on how you would 
select the criteria of what makes--how do you group it 
together? What would be the basis for that?
    Mr. Gould. You would group it together where the case 
involved a theory that was very closely related or a charge 
that was very closely related subject matter-wise.
    Mr. Shays. How would you decide which case to take?
    Mr. Gould. Which case you would take as a lead case?
    Mr. Shays. Yes, of the seven or six or five?
    Mr. Gould. Well, I think the one that would probably 
present the full array of issues which would govern the cases 
that will follow.
    You might have--for instance, we have had these Beck cases 
and there are a number of issues that are posed in these cases, 
and what you would try to do is try to find a case that would 
raise most or all of the important issues, and you would look 
at--you would survey when other cases were pending with you. 
You might pick one or two or three or four cases that would--
the resolution of which would spring all of these other cases 
loose automatically. You would know, once you have the answer 
to this one case, or two or three, that you would have the 
answer in connection with a wide variety of others that would 
follow in its wake.
    Mr. Shays. Thank you.
    Let me tell you the Chair's intention. We are already at 
1:35. I am going to go to Mr. Barrett. I know that Mr. 
Snowbarger has a number of questions, and I am happy to have 
that proceed, walking us through this issue. But then I want to 
feel that we then come to the other side and have some dialog 
there.
    We do have two other panels, and I am getting a little 
concerned about that, so I would just share that with the 
Members. Mr. Snowbarger has been here the whole time, so 
obviously he has been asking more questions.
    Mr. Barrett.
    Mr. Barrett. Thank you, Mr. Chairman. I apologize to the 
panel for missing the testimony and not hearing some of the 
issues that have been touched on.
    I would like to get a better feel for the usefulness of the 
10(j) proceeding and how it is helpful. I know it has been 
under some criticism, but how does it help and if you didn't 
have that, too, what would be left for the parties?
    Mr. Gould. Well, the classic kinds of cases that 10(j) 
would be applicable to--and this is not an example which is 
exclusive--would be where an employer has dismissed a large 
number of employees or has acted in--has engaged in misconduct 
toward those employees, where a union has engaged in violent 
conduct or other forms of misconduct vis-a-vis, the employer. 
And where a violation could be established, we could say that 
there is reasonable cause to believe, as most of the circuits 
have said, that there is a violation and where the passage of 
time through our normal administrative process would erode the 
fashioning of an effective remedy.
    In the case of employees who are dismissed, if we go 
through this process, which we described earlier, where a 
charge is filed, a complaint is issued and so forth and so on, 
when you get to the end of the hearing, it might be difficult 
to even find the employees who are entitled to recover under 
the status, let alone to compensate them.
    So what you are able to do, through section 10(j), which 
again is applicable to both union and employer misconduct, is 
to get into Federal district court and obtain temporary 
injunctive relief while the administrative process proceeds.
    Now, the other, I think, major point that has to be made is 
that in many of these cases where 10(j) is used or there exists 
the prospect of 10(j), what we have done is to enhance our 
processes where the parties are more likely and more able to 
voluntarily resolve their differences with one another. We have 
had settlements in a very high number of instances, a 
substantial number of instances where we have resorted to 10(j) 
in the Federal courts. And the reason is reported to me, as I 
go around the country, that the prospect of 10(j) has produced 
the same result in many instances.
    So two major results: expediting the process, and making it 
more likely a voluntary resolution without the resort which 
would otherwise lead to arduous, time-consuming, expensive 
litigation.
    Mr. Barrett. In a typical case, does the party seeking the 
relief come to you, or is it something that you typically would 
say it is appropriate?
    Mr. Gould. Well, generally what happens is that the charge 
is filed in the region and the regional director, usually as a 
result of a request by a charging party, but it need not be 
that way, makes a recommendation to the general counsel. The 
general counsel then determines whether the general counsel 
will make a recommendation to us, and then on the basis of the 
papers submitted by the general counsel and by the other 
parties, the Board votes as to whether the Board will authorize 
the general counsel to go into Federal district court to obtain 
injunctive relief.
    Mr. Feinstein. It can happen, and it typically does happen, 
either way. The parties can request it, but that is not 
necessarily the only circumstance. There are many instances in 
which the parties request it, and it is our view that 
injunctive relief is not appropriate. There are other instances 
in which the parties do not request it, but in our analysis of 
the case, we make a determination that injunctive relief would 
be appropriate.
    Mr. Gould. As you point out, Congressman, this is the way 
the practice has evolved over the years long before we got to 
Washington. You won't find this process described in section 
10(j) itself.
    Mr. Barrett. I am assuming that it is used more often on 
behalf of employees; is that correct?
    Mr. Gould. That is correct.
    Mr. Feinstein. I might add, we have another provision in 
the act, which is section 10(l), in which there is no 
discretion. If there is a certain kind of a violation alleged, 
then we are required to seek injunctive relief, and those are 
instances where employers have been charged. They largely have 
to do with a secondary pressure, inappropriate pressures being 
brought by unions in a labor dispute.
    Mr. Barrett. I know there has been some criticism about the 
backlogs at the regional level. How has Congress contributed to 
this? Is there something that we can do to help with this?
    Mr. Gould. Well, I think that the major thing that Congress 
can do to help the problem of the backlog at the regional level 
is to provide us with an adequate budget along the lines of 
what the President has requested. Most of our work is staff 
work, it is employees. We need people to be able to investigate 
and, where necessary, where settlement or withdrawal doesn't 
come about, or where we don't find merit, to litigate. And in 
order to have people, we must have an adequate budget, and I 
think that that is the major way in which the Congress can be 
of help in connection with the backlog in the field.
    Mr. Barrett. What about the case tracking, automatic case 
tracking? Is that helping, or is that helping to reduce the 
backlog, or what is the purpose of that?
    Mr. Gould. The case tracking system is designed to allow us 
to be able to identify particular kinds of cases, to know what 
it is that we have before us. We really, at this stage, don't 
know whether a particular case involves, as it might, an 
employee protest over working conditions, or whether it might 
involve alleged discrimination of union activity. We can, I 
think more effectively, discharge our responsibilities if we 
know what is coming, what is coming before us.
    Mr. Feinstein. If I could add to that as well, I think the 
short answer is yes. The case tracking system that we are 
seeking to implement to automate our case tracking process 
will, in addition to what the chairman has indicated, affect 
the thoroughness of our processing; it will also make us more 
efficient. It is a more efficient way of processing cases. So 
that too could indeed contribute to getting our case handling 
load down.
    Mr. Barrett. You have not had an automatic tracking system 
before now?
    Mr. Feinstein. We do have one, but it is one that was 
established 15 or 20 years ago that is quite antiquated by 
today's standards. We have significantly upgraded, of course; 
we have become computerized, and we are now into the second or 
third year of a process of switching over to a new automated 
case tracking system which will be light-years ahead of the 
system that we currently employ.
    Mr. Barrett. No further questions.
    Mr. Shays. Mr. Kucinich, do you have any questions?
    Mr. Kucinich. No questions.
    Mr. Shays. We are going to have a vote fairly soon. We have 
10 minutes, and then being that you have been a faithful person 
here the whole time, you have 10 minutes, if you want to go.
    Mr. Snowbarger. Thank you, Mr. Chairman. With the help of 
the panel, we will get through this quickly, if you could keep 
your answers relatively brief.
    Going back to the process here, I presume that once a case 
has been completed, the administrative law judge makes his 
decision and then there are consequences, presuming that the 
person that you have--who had the complaint filed against them, 
I presume there are consequences, I presume back wages to 
employees?
    Mr. Gould. There is no immediate consequence of the 
administrative law judge decision unless the parties agree to 
be bound by the decision at that particular point. The law has 
an obligation to fashion a decision in accordance with the law 
as it is written and to provide recommended relief. But the 
order is not self-enforcing, nor is our order self-enforcing.
    Mr. Snowbarger. What you mean is that they would always 
have the right to appeal that decision?
    Mr. Gould. That is correct.
    Mr. Snowbarger. But if they presumed that they wanted to 
stop at a certain--at your level, then there are some----
    Mr. Gould. In 30 percent of the cases, exceptions are not 
taken to administrative law judge decisions. The parties decide 
right then and there to either abide by the decision or resolve 
their differences in some other way.
    Mr. Snowbarger. Again, typical of the decision, what are 
the consequences?
    Mr. Feinstein. Well, of course it depends on the nature of 
the case. If what the case is about is that some unfair 
bargaining tactics have been employed and one party has not 
been bargaining fairly, the remedy would be an order to the 
recalcitrant party to commence bargaining fairly. So some of 
the remedies are in the nature of an order to simply stop doing 
what you are doing and do it correctly.
    There are situations in which discrimination has been 
alleged where the remedy would be to cease the discrimination 
and to compensate--not to punish, but to compensate--to punish 
the wrongdoer, but to compensate the person who has been 
wronged for that wrongdoing. Typically, if a person, for 
example, is unlawfully discharged, then they would be entitled 
to back pay, offset by any earnings that they have had in the 
meantime to compensate that person.
    Mr. Gould. Or that they would have obtained with reasonable 
diligence; both interim earnings and that which they would have 
obtained with reasonable diligence are deducted from the back 
pay.
    Mr. Snowbarger. All right. Let us take that as an example. 
I realize that we can't get into all of the examples or all the 
different kinds of remedies.
    Let us say that we have a case where someone says they have 
been wrongfully discharged--and we have talked about what the 
consequences are to the employer if that turns out to be the 
case. What are the consequences to the employee if it is 
determined that the employer was within his rights to fire in 
that situation?
    Mr. Gould. The employee--if the case is dismissed, the 
employee will not be able to obtain any form of relief 
requested.
    Mr. Snowbarger. But is there any consequence to it for 
putting an employer through a claim that was not meritorious?
    Mr. Gould. Well, if the general counsel determines to issue 
a complaint, there is a statute; and we made some brief 
reference to this before, the Equal Access to Justice Act, 
which allows a party to recover against us, the U.S. 
Government, if it has been determined that the general counsel 
undertook the case without a reasonable basis for so doing.
    Mr. Snowbarger. Is that something that the ALJ can take up 
on their own, or does that have to be brought before them by 
one of the parties?
    Mr. Gould. That would be brought before them by one of the 
parties. There have been 278 instances of that since this was 
enacted in the early 1980's, and 100 applications of those 
cases have come before the Court of Appeals. And these 
applications before the Board have resulted in awards totaling 
$897,000, and those before the courts have resulted in 16 
awards, totaling $390,000.
    Mr. Feinstein. That is over the last 17 or 18 years.
    Mr. Snowbarger. Let me shift the line of questioning.
    Are you familiar with the term ``salting''?
    Mr. Gould. Yes.
    Mr. Snowbarger. Could you just again briefly tell me what 
your understanding is of that term?
    Mr. Gould. Well, ``salting'' is generally applied--and I 
must say it is a modern term; it is a concept that has existed 
for many years, but it is a modern term because it appears as 
though some unions are using this technique with greater 
frequency. It involves the attempt by the union to use somebody 
who is paid by them, or assisted by them in some cases, inside 
a particular establishment, to recruit employees and to get 
them to affiliate in the union so that there will be a 
collective bargaining relationship.
    Mr. Snowbarger. I would agree. That is my understanding of 
what the concept means.
    In the context of backlogs, insufficient staff to handle 
all the workload, 60 percent of these cases being 
nonmeritorious, these being all of your cases, not just the 
ones that might be salting--well, maybe I ought to ask. What 
percentage of your cases would fall in that category?
    Mr. Feinstein. What percent fall within the salting 
category?
    Mr. Snowbarger. Right.
    Mr. Feinstein. We are not able with our current tracking 
system to differentiate cases by allegation. Also, most salting 
cases are not pure salting cases; there are always ones that 
are mixed. Under our new tracking system, that is precisely the 
kind of determination that we will be able to make.
    Mr. Gould. We are able to give you an answer to that from 
the Board's perspective.
    Mr. Feinstein. And we have surveyed the regions in terms of 
trying to get some sense of it, and there are certain regions 
where we have seen hundreds of such cases. The percentage. 
Nationwide I don't think we have ever been able to get.
    Mr. Snowbarger. Let me followup on that. You say that this 
perhaps is a regional phenomenon?
    Mr. Feinstein. We certainly have seen more of the salting 
kinds of cases in certain regions than others, but I would say 
it is probably--there are probably some salting cases in every 
region, but there is certainly a stronger concentration in some 
than in others.
    Mr. Gould. In fiscal year 1995, according to our operations 
management department, 358 cases were filed in the region; in 
fiscal year 1996, 578 cases were filed in the region; and in 
fiscal year 1997, up to June 6 of this year, 406 cases were 
filed in the region. That is a total of 1,342 cases.
    We, I think, had filed with us during that time about 
120,000 charges, so that is 1,342, of about 120,000. In 
Washington we see about 1,000 cases a year, a little under 
1,000 cases a year. We have had 75 salting cases in Washington 
that we have been able to identify; 44 have issued as Board 
decisions, 41 unfair labor practice cases, 3 representation 
cases. I think that that is over approximately a 4- to 5-year 
period.
    There are 24 salting cases pending before our agency now.
    Mr. Snowbarger. Before the Board?
    Mr. Gould. Before the Board. Before the Board in 
Washington.
    Mr. Snowbarger. Let me just make a couple of observations 
and ask you to respond.
    No. 1, the figures that you just gave me--358 in 1995, 578 
in 1996, and in the first 8 months or something of that fiscal 
year, or even--are we doing that by fiscal year?
    Mr. Gould. Yes.
    Mr. Snowbarger. So the first 8 months of this year, we have 
406, so we are probably up around 700 or something of that 
nature. I mean, I know they don't fall in any given year all 
the way through.
    Mr. Gould. With about 4 months to go in the year----
    Mr. Snowbarger. But, in theory, we have another increase, a 
significant increase in that kind of case.
    Mr. Gould. I am not a mathematician, but it looks as though 
we will come out along the lines of what we came out with in 
fiscal year 1996.
    Mr. Feinstein. If I may add, too, these figures are based 
on a survey that we have done basically in response to 
congressional inquiries; and I just want to----
    Mr. Snowbarger. My other observation is this, and I would 
ask your reflections on this.
    I was given a statement that was entered into the record 
earlier that just talked about six different companies, and I 
only have these figures that I am going to give you for three 
of those six companies. One of the companies had 14 unfair 
labor charges filed against it; in other words, they were 
either dismissed or they won it at the ALJ or whatever. Another 
company is 47 out of 48. Another company was 80 out of 80.
    As you were tracking these cases, does it begin to look 
suspicious that some of these companies may be targeted for 
these charges and unfairly targeted?
    Mr. Feinstein. Well, again, our tracking system hopefully 
will get more sophisticated.
    Mr. Snowbarger. Well, certainly you would have it by 
companies--I mean, by----
    Mr. Feinstein. Right. Let me suggest that these cases of 
course are investigated region by region. If the region has 
reason to suggest that charges that are being filed are 
frivolous, that they are based on perjured testimony, that they 
are unreliable in any way, shape or form, that certainly is 
accounted for in the investigation. Indeed, if we have good 
evidence of perjury or malicious prosecution, we can and have, 
in certain instances, referred that to the Justice Department 
for appropriate action.
    It is not a perfect system, but in these kinds of repeated 
filings of charges that are frivolous, that are totally without 
merit, that are baseless, there are ways in which the regions 
can and do account for that in their investigation of the 
cases. The bottom line is, we are required by statute to take 
each and every one of those charges and investigate them and 
make the merit determination. We don't really have an 
alternative. We can't simply say, we are tired of these kinds 
of cases; we are not going to investigate them anymore, we are 
not going to consider them. That would require an act of 
Congress.
    Mr. Snowbarger. Should you have that authority?
    Mr. Feinstein. Should we have the authority not to 
investigate a case?
    Mr. Snowbarger. Yes.
    Mr. Feinstein. You are asking me a policy question?
    Mr. Snowbarger. Well, you just said that you would need a 
law to change your responsibilities. I am asking, should you 
have that authority to make the decision if you want to pursue 
a certain number of cases, and perhaps these are cases that you 
don't want to pursue.
    Mr. Feinstein. Right. Well, what I tend to say when asked a 
policy question is that for 17 long, wonderful years I worked 
here at Congress, and it was my job to help answer those kinds 
of questions. But, since I have become an enforcer, I try to 
shy away from those kinds of policy issues.
    I would simply suggest----
    Mr. Snowbarger. Well, then let me ask Mr. Gould, because I 
notice in several pieces of information I have had from him he 
says, ``such as I have advocated,'' and on and on.
    Mr. Feinstein. I am sure that the chairman would have 
something to say. But I would suggest that in any kind of 
situation like that, many of these salting cases are merit 
cases. They are cases in which the rights of employees are 
being denied because of their union affiliation; and any kind 
of an adjustment would have to, in my view, acknowledge the 
fact that in any kind of a statutory scheme you are going to 
have meritorious cases and nonmeritorious cases, and you have 
to have some means of being able to separate the two.
    Mr. Snowbarger. Sure. I understand that, and I guess what I 
am trying to suggest in my line of questioning is that when 
there is a meritorious case, there are consequences to that 
case, to the person who brought it or to the person who is 
charged.
    When there is a nonmeritorious case that is pursued and the 
aggrieved party is the loser, there is no consequence to that 
party; and perhaps there ought to be a way to weed those cases 
out, either changing your authority or changing the 
consequences to those who file nonmeritorious cases.
    Thank you, Mr. Chairman.
    Mr. Shays. We are going to go to the next panel. We think 
we are going to have a vote right away, and I was just thinking 
that we might just have a break, because we are going to have 
two votes at once.
    Let me conclude by saying, Mr. Gould and Mr. Feinstein, is 
there any point that you want to make before we go to the next 
panel?
    Mr. Gould. Well, the only point I would like to make, Mr. 
Chairman, is one of the points that I started with, and that 
is, we have taken--we have read your statement about our work 
on GPRA and we regard this as a work in progress. We are really 
learning, and we want to consult with you, learn from you, and 
work with you toward providing a more effective statement.
    I think that we have undertaken a wide variety of 
initiatives that are designed to make our agency a more 
effective one. I am very proud of the record that we have 
obtained over these past 3\1/2\ years as an impartial, neutral 
and effective agency in this world of labor law.
    We look forward to working with you and to devising a more 
effective statement to bring ourselves into full compliance 
with what you deem to be the requirements of the statute; and I 
thank you very much, Mr. Chairman, for the opportunity to be 
here.
    Mr. Shays. Let me just say, it is good to have you here. We 
really haven't had enough interaction with your agency in 
particular and labor issues in general. We have been focused on 
HHS and Education and Labor and HUD issues, so it is important 
that we get a little more involved. Some of our questions were 
a little more generic; it is good to have you here.
    We also are learning how we make the Results Act work, but 
it is more than just a statement, it is really a whole way of 
evaluat- ing your operation; it is helpful to you and it will 
be helpful to us.
    Mr. Gould. I recognize that, and I hope you will also 
recognize how active we have been in employing strategies which 
are de- signed to make our agency effective and efficient and 
to accomplish our objective, because I think in this regard, no 
Board has under- taken more and more that is effective in this 
regard than what we have done these past 3\1/2\ years.
    Mr. Shays. We have seen that, and we do appreciate it. 
Thank you for it.
    Mr. Feinstein. Mr. Chairman, I would just simply add, I 
hear the bells, simply associate myself with the comments of 
the chair- man. We do find this a very useful process. We 
believe in the GPRA, and we certainly understand the need and 
the benefit that we can get through consultation with you all 
and GAO and others who are interested, and we certainly look 
forward to that process.
    Mr. Shays. I thank you both very much, as well as your 
support staff.
    I am going to say to the next panel, we have two votes. I 
have been here 10 years and we have five lights, and I finally 
figured out we have more than one vote. My understanding is we 
have two votes, a 15-minute and a 5-minute, but they will leave 
the machine open, so I suspect we are not going to be starting 
until 2:30.
    We will see you back here at 2:30, God willing. Thank you 
very much.
    [Recess.]
    Mr. Shays. I would like to call this hearing to order and 
to wel- come testimony from Robert Allen, who is the inspector 
general, National Labor Relations Board, and Ms. Carlotta 
Joyner, who is Director of Education and Employment Issues for 
the U.S. General Accounting Office.
    And I believe that, Mr. Allen, you are accompanied by Mr. 
Mi- chael Griffith and Mr. John Zielinski. Do I say that----
    Mr. Allen. That is correct.
    Mr. Shays. OK. What we do is, first we owe you, obviously, 
an apology that we've gone so long. And I apologize that you've 
had to wait so long. But we do need to swear you in, as we 
swear in even our Members of Congress when they come before us.
    [Witnesses sworn.]
    Mr. Shays. Thank you.
    For the record, all four witnesses have responded in the 
affirma- tive. We have testimony from two of them, Mr. Allen, 
inspector general, and Ms. Joyner as well.
    So, Mr. Allen.

  STATEMENTS OF ROBERT E. ALLEN, INSPECTOR GENERAL, NATIONAL 
   LABOR RELATIONS BOARD, ACCOMPANIED BY JOHN ZIELINSKI AND 
 MICHAEL GRIFFITH; AND CARLOTTA JOYNER, DIRECTOR OF EDUCATION 
    AND EMPLOYMENT IS- SUES, U.S. GENERAL ACCOUNTING OFFICE

    Mr. Allen. Thank you for the----
    Mr. Shays. I'm going to ask you to pull that mic a little 
closer. I'm going to have you put it on the other side of that 
sign, if you can, because you're going to be looking toward me. 
So lift it up a little bit. OK.
    Mr. Allen. I appreciate the opportunity to appear here.
    Can you hear me?
    Mr. Shays. Yes, I can. I'm going to have you just lower the 
mic a little bit. You know, and my esthetic sense bothers me. 
I'm sorry. My wife complains. Can you take that name tag and 
put it back up there.
    Thank you.
    Mr. Allen. I've seen it all too much.
    Mr. Shays. OK. Well, thank you, Mr. Allen. Happy to hear 
your testimony.
    Mr. Allen. I'm the inspector general for the National Labor 
Relations Board. I've been so since September of last year. And 
before that, I served approximately 30, 35 years with the Board 
in various capacities, and it's been said I've had every job 
that they offer there. I do bring to the office a background of 
the experience to the Labor Board that probably most inspector 
generals do not have with their agency.
    We have a small staff. We have three auditors and two 
investigators. The chief auditor is here, and counsel in chief 
investigator is here. We carry, or are carrying right now, 40 
cases, open cases. And I came into this position with the grand 
idea of engaging in a program of what I call preventive 
medicine, because I believe it's better through education and 
information to forestall or the happening of bad events than 
try to cure them after they happen. Unfortunately, the press of 
time and the case load has just not allowed me to do that.
    We are simply flooded with cases. You have our last two 
semi-annual reports. And I think our cases run pretty much the 
gamut of what you find at any inspector general. As far as the 
auditing goes, we are nearing the end of--or will in a couple 
of months--of our financial audit of the 1996 appropriations. 
We are in the middle of doing an audit and several 
investigations into contract performance by one of our largest 
contracts that we have led. And we, as soon as time permits, 
plan to review the procurement functions through an audit 
review and possibly investigation, and our property control, 
and the back pay procedures used by the agency.
    In June 1996, before I came upon this job, my predecessor 
was John Higgins. He issued a report which the committee has 
and which reviews the agency's process for measuring and 
reporting on his performance.
    I had nothing to do with that report. I only read it this 
week. The supervisor auditor here today did. And so between us, 
we can address it to you.
    I would only initially say that, in my opinion, in 30 
years, one thing that the Labor Board does good--and I can't 
imagine anybody disagreeing--is that they do know how to 
measure. And I'd invite anybody over to look at the chart room. 
I've never seen any
agency or any business measure that works as well. And in the 
way Mr. Higgins describes, it comports with my 30 to 35 years 
experience.
    And with that, if you have any questions, I'll be glad to 
address them.
    [The prepared statement of Mr. Allen follows:]

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    Mr. Shays. OK.
    Ms. Joyner.
    Ms. Joyner. Mr. Chairman, I'm very pleased to be here today 
to talk about the National Labor Relations Board's strategic 
plan required by the Government Performance and Results Act. My 
written statement focuses primarily on NLRB's July 8, 1997, 
draft strategic plan. As you requested, we determined whether 
the draft plan complied with the Results Act and the guidance 
on developing strategic plans from OMB. To judge the overall 
quality of the plan and its components, we use GAO's May 1997 
guidance for congressional review of the plans.
    Agency strategic plans are to provide the framework for 
implementing all the other pieces of the Results Act and a key 
part of improving performance. But the act anticipated that it 
might take several planning cycles to perfect the process.
    Agencies, as you know, are not required to submit their 
plans to Congress until September 30, 1997. So we knew when we 
reviewed the draft plan that it would probably be revised 
before submission to Congress. In fact, as you have noted 
before, it was revised, and we got a revised version on Tuesday 
of this week, on the 22nd. We've reviewed that plan as well.
    In summary, the draft plan of July 8 has deficiencies in 
several critical areas and often omits important information 
required by the act.
    The Results Act requires the strategic plan to have six 
specific elements. Regarding the first two of those, mission 
and the goals and the objective, the first draft that we 
reviewed, the July 8 draft, did not articulate well the mission 
and the goals and objectives and how the various functions were 
going to carry out the mission of the NLRB.
    It also listed strategies but did not describe them. And it 
entirely omitted three of the basic elements of a strategic 
plan. Those elements are the relationship of the long-term 
goals to performance goals that will be in the annual 
performance plan that's due to the Congress in February of next 
year; a discussion of external factors that could affect 
achieving the goals; and a discussion of how pertinent 
evaluations were used in establishing the goals and a schedule 
of future evaluations.
    We did find that the plan recognized some of the key 
challenges facing the agency, including managing a large case 
load and improving, with acknowledging to be deficiencies in 
their information management system, the management information 
systems.
    But with respect to the management system, as you noted in 
your opening statement, there were several important omissions 
as well. One that you also noted that I would like to reinforce 
is the idea that they are moving ahead with improving their 
case activity tracking system, but they have not yet finalized, 
as we understand it, what measures they are actually going to 
be using in their annual performance plan. So there is a 
serious concern that those not being linked may lead to 
significant rework in the tracking system that they are 
developing.
    As I said, they produced a new plan after we discussed with 
them our concerns about their other plan, and it is attached, 
as you know, to the chairman's statement. This plan, in our 
opinion, is a significant improvement over the previous plan.
    With respect to the six required elements, the mission 
statement focuses more on why the agency exists, its purpose, 
and the issues that the agency is charged to address. The goals 
and objectives move to progressively more detailed focus on 
what they hope to achieve. For example, the plan moves 
logically from mission, ``encouraging and promoting stable and 
productive labor management relations,'' down to a goal, 
``preventing and remedying unfair labor practices.'' And that 
one, you can see, is further broken down into one objective 
about doing so expeditiously and another objective about doing 
it effectively--which they think of as quality and thoroughness 
as well as ensuring compliance. So there is a logical flow. And 
the strategies are presented. This time, unlike before, they're 
clearly linked to the goals and objectives. However, there is 
not very much discussion, as there ought to be, of what 
resources will be needed and how the strategies will be carried 
out.
    Another problem with that portion of their strategic plan--
the mission goals, objectives, and the strategies--is, what's 
missing is any sense of how they're going to communicate this 
process, these goals and objectives, throughout the agency, 
including across, as you spoke of earlier, the two 
compartments, if you will, of the agency and who--how 
responsibility will be assigned to accountability to managers 
and staff for achieving the objectives.
    The other three requirements are included in the revised 
draft plan, but they need to be more fully developed, 
especially the relationship between the long-term goals and the 
annual performance goals.
    For example, NLRB, we believe, should not have a false 
sense of confidence that the work to develop an adequate set of 
performance measures, which links to their strategic goals--
that that work is all done.
    Assessing whether a set of performance measures is 
consistent with the Results Act, we believe, can only be done 
after the other elements of a strategic plan have been defined, 
and NLRB has now made substantial progress toward defining 
those other elements, such as the mission, goals, and 
objectives.
    I'll be glad to answer any questions that you might have.
    [The prepared statement of Ms. Joyner follows:]

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    Mr. Shays. Thank you.
    Mr. Allen, I'm not clear where you see trouble areas in the 
Department. Where do you see trouble areas? Where are the areas 
that concern you most in the NLRB?
    Mr. Allen. I think if we're talking systemic matters, I 
think the workman compensation claims is certainly a problem, 
and we have engaged in a program to improve that. And we have 
even referred some cases to the U.S. attorneys.
    But as you know, the Department of Labor makes the ruling 
on that, but the various agencies pay for it. So there's not, 
in my view, a lot of incentive for the Department of Labor to 
deny them. And the agency ends up with a bill in it--and I 
forget what it is, but it is substantial in my--that's one 
area.
    And we have done--well, actually Mr. Higgins, my 
predecessor, started the program, and it's been continued.
    I think maybe the other area that there may be some 
concerns is in the performance by outside contractors and 
possibly procurement problems. I won't--I really won't know the 
answer to those questions until we complete ongoing 
investigations that are going on now.
    We also investigate--the question of bias came up and how 
to--how does the agency control bias investigations and 
determination of cases. We do have some investigations going on 
on that. They're isolated, of course.
    Now, one thing we do not do, whatever the--we do not 
second-guess the case decisions of the general counsel of the 
Board or regional directors. That's not within the jurisdiction 
of an IG. There's a fine distinction, because we had a lot of 
complaints. People, say, hey, you know, this case is not 
decided right, and we have to tell them this. But then if they 
go further and make some showing, well, maybe it wasn't decided 
right because it's a misconduct, and maybe bias so blatant that 
it rendered the investigation or the decision, it tainted it.
    Mr. Shays. With the Department, you said the workers 
compensation is one concern, out contractors.
    How much progress do you believe the NLRB has made in 
establishing the whole issue of objectives in establishing 
performance goals and performance measurements as required by 
the Results Act?
    Mr. Allen. Well, the IG's office has not looked into that. 
We've had no input into it, and we've not participated in it, 
other than for the June report of John Higgins. And, as I said, 
I wasn't present then, but the last thing that the Office of 
the Inspector General did was that report. And of course I 
preceded the strategic plan and everything that followed.
    Mr. Shays. OK. I just have to tell you, it leaves me uneasy 
that you, as inspector general, can't tell me how you think the 
Department is doing with the Results Act.
    Mr. Allen. I think if we're forced to tell you that, we're 
going to have to make a review or investigation on audit, and 
we have simply not done that yet. It is certainly--it is 
certainly something that we can do.
    And, Mike, would you address that?
    Mr. Griffith. Mr. Allen mentioned that we did issue a 
report back in June 1996. And that did include the agency's 
progress in terms of meeting GPRA.
    At that time, it was our assessment that the agency was 
moving forward appropriately. We have not, as he indicated, 
done any audit work or review work since that time until this 
week when I did look at the agency's most recent strategic 
plan, and, like GAO, I saw the need for improvement in that.
    As the chairman indicated this morning, the agency is 
making considerable improvements in that strategic plan to meet 
the provisions of the law, but they still have a lot to go. And 
as GAO mentioned, one of the big things would be the 
performance measures, before they get too along in their 
information system.
    So we are looking at it, we just have not done extensive 
audit work since that time.
    Mr. Shays. Could you, Mr. Allen, give me a sense of why the 
agency paid $1 million to a contractor for services which were 
not performed satisfactorily or were not performed at all?
    Mr. Allen. That's the allegation that's in--that's noted.
    Mr. Shays. Allegation that's what?
    Mr. Allen. That is an allegation that has been made and is 
the subject of an investigation.
    Mr. Shays. Right.
    Mr. Allen. I----
    Mr. Shays. Has the IG yet responded to that? Isn't there 
some documentation?
    Mr. Allen. We issued a draft audit. The inquiry since then 
has expanded substantially. We're investigating it. We have 
approximately three or four maybe--yes, four, at least, related 
cases which we have grown out of it which we're investigating.
    I cannot--I'll be glad to share the report with you, of 
course, once we're finished. I do not think that it would be 
appropriate at this time to get into it, because, as you make 
your report, you interview your witnesses--for example, I've 
subpoenaed over 1,000 documents, pages of documents, also 
that----
    Mr. Shays. How many work in your office?
    Mr. Allen. There's myself, there's my chief counsel, one 
investigator and three auditors.
    Mr. Shays. That's it?
    Mr. Allen. And an assistant secretary. Yes, that's it.
    Mr. Shays. So you have not had a preliminary finding that 
there was misuse of this money? There wasn't----
    Mr. Allen. I--I have not made any finding.
    Mr. Shays. OK.
    Mr. Allen. That is correct.
    Mr. Shays. Would you explain to me what we call the CATS, 
the Case Activity Tracking System. Explain to me what this 
system is supposed to do.
    Mr. Allen. Well, that--once again, we have not made a 
review of that. It is a new system to case tracking to replace 
the old system which functioned for years. But we haven't--the 
agency has more needs now, and such has been explained. You 
can--under CATS, you'll be able to track a case from its 
beginning to its end, and you can arrange it by subject matter, 
which, for example, you cannot do now.
    The part of our investigations that are going on now do not 
involve the CATS matter. It involves other matters in computer 
and computer maintenance, but it does not involve the----
    Mr. Shays. Well, let me just say to you, though, that the 
thing that concerns me is, if we have a problem with $1 
million, we're going to at least be uneasy if the--the CATS 
system is going to cost how much?
    Mr. Allen. It's going to be more than that.
    Mr. Shays. No; that's an understatement.
    Mr. Allen. I'm sorry, I don't know.
    Do you know, Mike?
    Mr. Griffith. Well, a good bit of CATS expenditures has 
been the actual PC, the hardware, that type of thing, and it's 
several million dollars.
    Mr. Shays. Have they spent 10 already?
    Mr. Griffith. It will approach 10 certainly, once it's all 
completed.
    Mr. Shays. OK. Well, I have a little bit of discomfort, if 
we're concerned how $1 million is spent, how they're going to 
do with $10 million.
    Mr. Allen. Well, you'll notice, Congressman, that we do 
have an inquiry planned, complete audit review on our 
procurement practices, and largely the concern growing out of 
the investigations we're doing now, and that will be 
accomplished as soon as our small staff can do it.
    But we do have--one thing we do have, and I point out in my 
report, we do have the power of subpoena duces tecum, which I 
have used extensively for this for outside parties.
    You know, inside the agencies, everybody is required to 
produce documents and to cooperate. But when you have to go out 
to, say, outside contractors, the only power you've got or 
witnesses who may know something is your power to subpoena 
documents. And I have subpoenaed----
    Mr. Shays. Power to what?
    Mr. Allen. To subpoena documents.
    Mr. Shays. The other power is, you have the power to----
    Mr. Allen. Well, within the agency, I have the power to 
interview people, take affidavits, personal interviews, which 
we have done, but I do not have the power--the Inspector 
General Act does not give us the power to subpoena testimony.
    Mr. Shays. But let me ask you this. You can take testimony. 
But if you're the inspector general and you have an outside 
contractor supplying a good or a service to a Department, the 
mere fact that you have concerns, it seems to me, you would get 
tremendous cooperation. If you didn't get cooperation, I would 
think you would recommend that they discontinue the contract.
    Is this a contract that's already been completed?
    Mr. Allen. The--the one we're investigating is, yes.
    Mr. Shays. It's----
    Mr. Allen. It's been renewed.
    Mr. Shays. It's what?
    Mr. Allen. It's been renewed, yes. It's a 1996 computer 
maintenance contract.
    Mr. Shays. If you think you have any trouble getting 
documents, I would like to know.
    Mr. Allen. I have no trouble getting documents.
    Mr. Shays. Do you have any trouble getting cooperation or 
testimony?
    I don't understand. If I had a contract and that contract 
meant something to me and I had an inspector general come in 
and ask questions, I would throw open my books to you in any 
way possible. I realize you've got few people, and that's 
certainly a restraint, but you have a tremendous power.
    Mr. Allen. Well, in the beginning we did not have that 
problem. I just had a subpoena returned with a letter from an 
attorney which says, hey, we don't give this; it's irrelevant. 
Now I fight that battle next week.
    Mr. Shays. Well, you know, I have to be careful that I 
don't, you know, interpret your nice kind of western southern 
drawl as being an easy kind of guy, because I hope that when 
you get that kind of reaction, that you are loaded for bear 
here.
    Mr. Allen. Well, I think we are loaded for bear, and----
    Mr. Shays. Well, this is what we're going to do. I'm going 
to ask my staff to personally inquire about this case and to 
followup with you. And if we have to get the contractor before 
this committee, we'll do it. We will get the contractor before 
this committee if you don't get the cooperation. And we want 
some answers pretty quick on it.
    Mr. Allen. I expect the report on this----
    Mr. Shays. Will be due when?
    Mr. Allen. Certainly within weeks. Personally, if I can get 
5 days away from the other cases, I can finish it, if you want 
to have a specific answer.
    Mr. Shays. We'll look to see some answers to this case.
    Mr. Allen. In a few weeks, yes.
    Mr. Shays. In September or a little earlier, I guess. But 
I'll just leave it up to you discussing with our staff.
    Mr. Allen. Sure.
    Mr. Shays. We're happy to followup. And we're happy to--if 
you do not get cooperation from an organization that's doing 
business with the Government, we're very happy to have them 
explain to us why they're not cooperating with the inspector 
general of the United States overseeing a very important 
Department.
    Ms. Joyner, how do you think the NLRB is progressing in 
linking its strategic plan annual performance goals to the 
activities and operations that are in the budget?
    I mean, how well are they--how well are they coordinating 
what are strategic plans and so on with their--and their annual 
performance goals to the activities and operations of the 
budget?
    Ms. Joyner. Well, in this most recent plan that we saw, 
they have made some progress toward that, in that this time 
what they present is what they call performance measures, which 
we take to mean their statement of the kind of performance 
goals.
    As you know, they're called upon now to have their 
strategic goals laid out and, in fact, to go ahead and describe 
the specific performance goals that they'll be submitting along 
with their budget, which in fact need to go to OMB for review 
in September. So it's not way off in the future in terms of 
getting clear on that.
    So they do list some performance measures. The measures 
seem to be well-linked, and they seem to be ones that probably 
would provide some useful information.
    My concern is about the set of overall performance 
measures. It's not that I would be critical of any one of the 
measures that they provide, but what's missing seems to be a 
comprehensive look at the goal and the objective and then 
delineation of the whole range of measures that would give me 
some sense that I'm accomplishing these.
    So whereas they have lots of measures--they have several in 
the plan, and I understand they have many, many more--they have 
lots of numbers and lots of measures.
    For example, they've get a timeliness. They can talk about 
timeliness and various segments and various goals, that that 
part of their--their mission and their goals and objectives 
that relates to the effect, the result, of what they've done 
and, as they call it, even the quality of the decision.
    To go back to the example I gave before on unfair labor 
practices, what's missing in that set of performance measures 
is any assessment of the effect of their enhanced compliance 
efforts. So the biggest problem is the gap, the gap in the 
kinds of measures that they're presenting.
    Mr. Shays. OK. In terms of--I'm uneasy about the whole Case 
Activity Tracking System. Is my uneasiness justified?
    Ms. Joyner. On the basis of what's in the strategic plan, I 
would say that this uneasiness is well-justified. There may be 
more information than either of us has about the planning that 
has gone into that.
    Mr. Shays. Are you saying----
    Ms. Joyner. But it's not in the plan. It is not written for 
us to know about.
    Mr. Shays. So are you saying in terms of the Results Act, 
the whole CATS operation is not part of that Results Act? I 
mean, you don't see it connecting between the two?
    Ms. Joyner. What's missing right now is a delineation of 
what measures they need to be able to demonstrate to themselves 
and to the Congress that they've met the goals and objectives 
that they've laid out.
    Until they've decided what measures they need--and 
essentially we talked with you about those, talked with you 
about those measures in their consultation process and received 
agreement that if we use these measures and perform according 
to the standards we've set, we will be demonstrating success.
    Until they've done that, they don't know what they need to 
put in their Case Assignment Tracking System. They don't know 
all the things that they need to have in there. So our concern 
is that if they step back and say, ``we've been measuring lots 
of things for 40 years but maybe we haven't measured all of the 
right things and now we need to design some new measures,'' if 
they were to do that, as the strategic process calls for, then 
they would perhaps need to build into their tracking system 
something that they're not currently planning to build in.
    So until they've looked at the measures in the context of 
what they're trying to achieve, they won't know that they have 
all the right measures.
    Mr. Shays. I'm going to ask in a second the staff to ask a 
question, too, if we need to.
    But, Mr. Allen, when you started out, you made reference to 
measurements, and you said that the NLRB knows how to measure, 
if anything knows how to measure. I lost the beginning of it, 
so I didn't quite get your point.
    Mr. Allen. The point--that's the point my predecessor makes 
in this memorandum and I was trying to say.
    Mr. Shays. His point was?
    Mr. Allen. That historically going back to 1960----
    Mr. Shays. Yes?
    Mr. Allen. As a matter of fact, the NLRB has an impressive 
measuring system. Now that's not to say that it meets the 
requirements of the Results Act. I didn't mean to indicate 
that. I'm just saying, historically, I agree with John Higgins 
that I don't know of any agency or personally of any business 
where you can walk in one room and it's charted all the way 
around on any--on any single case activity will tell you 
exactly where the performance is.
    Mr. Shays. Well, I'm wondering if they can tell you, you 
know, how many and what they've done. The question is, can they 
answer the questions of why and----
    Mr. Allen. No.
    Mr. Shays [continuing]. And how well. You know, those are 
the measurements that you know we're going to need to get into.
    Mr. Allen. I understand that the Results Act does require 
additional--additional measurements.
    I might add, you were asking--you know, the IG really 
hadn't been in on this. The IG Act does provide, in addition to 
all wastes and abuse, that we should be in on the agency 
programs on the economy and efficiency of it, and I assume 
that's what you're referring to. The problem being the NLRB--
our staff has--has been so small, we have never, never been 
involved in--for example, on the planning of--of how you--of 
how you made a strategic plan or GPRA.
    Now what happens, we will review it later at times, but as 
far as being in up front----
    Mr. Shays. Let me just ask you up front about this.
    Mr. Allen. Yes.
    Mr. Shays. What I think I hear you saying is, you're a 
small office.
    Mr. Allen. Yes.
    Mr. Shays. And I would be the first to acknowledge that the 
Government has required GPRA Results Act performance 
measurements and so on.
    And are you saying that even within your own office, you 
have limited ability to determine a good plan and so on? I 
mean, that would be a fair statement to say. And one very----
    Mr. Allen. That wasn't what I was saying, though.
    Mr. Shays. Does that happen to be true, though?
    Mr. Allen. That happens to be true, yes.
    Mr. Allen. But what I was saying is, looking at the 
National Labor Relations Board, just not the inspector general 
part of it, the IG Act provides that we should be in up front 
on planning and function in such things as the strategic plan. 
We have never, never to my knowledge, been able to do that, 
either me or my predecessors, because of the smallness of the 
staff.
    Mr. Shays. Yes. Fair enough.
    Mr. Griffith. Mr. Chairman, may I make a comment?
    Mr. Shays. Sure.
    Mr. Griffith. Just in regards what you're talking about, we 
did go in, as I said, 15 months ago and assess where the agency 
was on its strategic plan and meeting the various provisions of 
GPRA as part of the overall review of measuring its ability to 
fulfill its mission.
    At that time, we made the assessment that they were moving 
forward in an appropriate fashion. But they at that point did 
not have a strategic plan finalized that we could actually 
review.
    What they had done, that we were able to confirm, is 
they're dealing with theoretical experts in the area, quizzing 
their employees, this type of thing. And they were also 
establishing data bases by which they could compile their 
information.
    Mr. Shays. What I'm trying to get at is if you know, if I 
had to come and set up a performance program in my own office, 
as we try to do, we're pretty elementary in doing it; we don't 
have someone who's going to graduate school with how you do 
performance measurements. I have a graduate degree, and I've 
had some background in this.
    But I guess the point I'm trying to say is, this is new 
territory for a lot of us, including the committee. I'm trying 
to have a little sympathy for a small office that may not have 
the expertise, because it's clear to me this isn't a primary 
focus of your unit right now, and my first reaction is to think 
this is really terrible, and then I'm thinking, wait a second, 
we've got a small group of people.
    Were you given any training yourselves in how to set up 
such a process? Did you hire someone new to----
    Mr. Allen. We did not.
    Mr. Shays. Exactly. And so I'm just trying to sort it out a 
bit here.
    One last question. Then I am going to get to staff. The 
Board is five members; correct? And, NLRB has only three 
members sitting?
    Mr. Allen. Three members sitting.
    Mr. Shays. And only three members sitting for how long now?
    Mr. Griffith. Since this past--let's see here.
    Mr. Zielinski. Remember, Browning died.
    Mr. Shays. February. A few months ago.
    Has the administration brought forward any appointments yet 
or nominations?
    Mr. Allen. Not that I know of.
    Of course, two of them sitting are not--you know, are not 
confirmed members.
    Mr. Shays. So we only have one confirmed member.
    Mr. Allen. Yes. That's the chairman.
    Mr. Shays. We have two that aren't confirmed, and we have 
two vacancies.
    Mr. Allen. Yes.
    Mr. Shays. That's a pretty pathetic situation. I was going 
to get into that, but we have so many other questions. That's 
pretty pathetic.
    What is the impact of having the three-member Board and two 
of the three not permanent members?
    Mr. Allen. Well, I think--of course, the chairman addressed 
that. In my view, based on my experience of the agency as IG, 
it means that I think some of the probably more difficult cases 
do not get out, more important cases, in my view, because you 
would want--you would want a bona fide five-member Board to 
rule on those matters, and I think--I think it was--I think 
that would be one of the biggest drawbacks.
    Mr. Shays. Well, I'm going to talk with Mr. Towns about the 
value of our weighing in on this, because, casting no 
aspersions, it just simply needs to happen.
    Ms. Joyner, any response to a three-member Board of which 
only one is a permanent member?
    Ms. Joyner. I really wouldn't have any basis to respond on 
that.
    Mr. Shays. OK. You haven't looked at that?
    Ms. Joyner. No.
    Mr. Shays. OK. Let me do this.
    Ms. Joyner. We've not looked at this issue recently. We 
did--back when we did a study in 1990, we issued a report in 
1991. We talked about the high turnover in Board members as 
being a problem contributing to some of the backlogs at the 
Board level.
    And, in fact, related to that, if I might expand on a 
discussion that occurred earlier today, is that the backlog 
after at the Board level--after decisions get up to that point 
when we based on data from the end of 1996, it's now as bad as 
it was back when we did this study, 1989; 16 percent of the 
cases that reach the five-member Board stay there for over 2 
years.
    Mr. Shays. OK.
    Ms. Joyner. And that was the----
    Mr. Shays. Say that again now.
    Ms. Joyner. After we----
    Mr. Shays. Say exactly what you said again.
    Ms. Joyner. Sixteen percent of the cases after they reach 
the state of the five-member Board decisionmaking are there 
over 2 years.
    Mr. Shays. OK.
    Ms. Joyner. And that's what they had set as, after we did 
our work in 1991. And we looked at the backlog just at that--at 
that level, at the Board level. We recommended that they set 
some clear criteria for how long was too long and some 
processes in order to make sure that they don't exceed that. 
And that's what they said. And it did get better.
    Mr. Shays. OK.
    Ms. Joyner. But in the last few years it got worse again.
    Mr. Shays. The committee needs to look at that again. I'm 
going to work with my ranking member to see if we can make an 
effort to encourage the administration to move forward.
    At this time I would ask Cherri Branson if she has any 
questions.
    Ms. Branson. Yes, we have just a few questions for Ms. 
Joyner.
    Ms. Joyner. Yes.
    Ms. Branson. First of all, GPRA requires that all the 
agencies submit their plans by September 30, 1997.
    Ms. Joyner. Yes.
    Ms. Branson. What does the law provide if that doesn't 
happen and if the agency fails to submit their plan?
    Mr. Shays. I didn't notice that southern accent until we 
had Mr. Allen.
    Ms. Branson. I've had it for quite some time.
    Mr. Shays. OK.
    Ms. Joyner. We have to be careful, or mine will start 
coming out too. That's what happens when I'm around it.
    Mr. Allen. If you get two of us together, it will happen 
every time.
    Ms. Joyner. What happens if agencies don't submit their 
plans? I have to admit, I really don't know. I'm not--I have 
not heard any discussion of the consequences. I'm not sure what 
there might be in the way of penalties for an agency that does 
not submit their plan by then.
    Ms. Branson. If the act doesn't have any penalties, then 
what do you think may happen?
    Ms. Joyner. I think that all the agencies will submit 
something, and they will be quite variable in their quality.
    OMB, of course, is a control point for this, agencies are 
required to submit their plans to OMB first. I believe they're 
due there no later than August 15. And then there--with the 
feedback they get from OMB, they are to submit them to 
Congress.
    So I think the administration does take very seriously the 
fact that they're a control point and they're supposed to get 
some plans submitted. GAO has--on the basis of some earlier 
work--looked at the progress agencies were making and issued a 
report saying that, really, we do feel they're going to be a 
very uneven quality.
    Ms. Branson. Has GAO--is GAO working on a report now that 
discusses overall GPRA compliance?
    Ms. Joyner. One thing we're doing right now, upon request 
from several Members of the House leadership, is we are--we 
have reviewed the draft strategic plans for the 25 major 
agencies. And this was a joint request from the House 
leadership. And we have gone in using the same criteria that I 
described earlier--in fact, that we used with the NLRB's 
strategic plan. And we have reported in correspondence on each 
agency as we got them finished.
    I was responsible, for example, for the ones on education 
and on the Department of Labor. And there will be a product 
that pulls together what we found across those. And I think the 
deadline for issuing that will be sometime in August that we'll 
be issuing a report, if you will, what we call correspondence, 
probably, that reflects our observations over these.
    Again, these are the draft plans, and we recognize and we 
try to be sensitive to the fact that the agencies have more 
time to improve them. But--but we will be issuing some comment 
about where they looked at least at that draft stage.
    Ms. Branson. And it's my understanding that you have 
reviewed, in preparation for this hearing, at least two 
reports, draft reports, for the NLRB.
    Ms. Joyner. Yes.
    Ms. Branson. And then you stated there is a significant 
difference between the first report and the second report.
    Ms. Joyner. That's right.
    Ms. Branson. So have you had--would you describe their 
attitude as cooperative and--and willing to make change?
    Ms. Joyner. They were very cooperative and interested in 
what insight we could give them on ways to improve. They 
repeatedly said, ``tell us what we need to do and we'll try to 
do it.'' And they were receptive to the comments that we 
offered.
    Ms. Branson. OK. Can I just ask one more?
    Mr. Shays. Sure.
    Ms. Branson. Mr. Allen, does the NLRB have a chief 
information officer?
    Mr. Allen. The--we do have information officers, yes.
    Ms. Branson. I mean under the CIO Act as--in addition to 
the CFO Act.
    Under the CFO Act----
    Mr. Allen. I don't think so.
    Ms. Branson [continuing]. All the agencies have to have a 
chief financial officer. Under the CIO, they have to have chief 
information officers who are responsible for the computer 
systems.
    Do you know whether the NLRB has a CIO?
    Mr. Griffith. We do not have a CIO. We do not, I believe. 
We can check on that.
    Ms. Branson. Some of the problems you describe with the 
CATS system could--do you believe they could be addressed if 
there was a CIO?
    Mr. Griffith. The--what's been discussed thus far in terms 
of the CATS problem is that perhaps the agency needs to rethink 
its performance measures to build into the data base so that 
when it starts getting its information down the line, it will 
be able to conform better with the requirements of GPRA, and 
perhaps a chief information officer could help in that regard.
    As far as some of the other issues that have been brought 
up, the year 2000 problem, integrated accounting systems and 
that type of thing--I don't believe that we have that issue at 
the NLRB, and I don't think a CIO would have made any 
difference.
    Ms. Branson. Thank you, Mr. Chairman.
    Mr. Shays. I thank you for the very good questions you 
asked.
    What we're going to do is, I'm going to go vote and we're 
going to come back. And then Mr. Yager, Mr. Joseph, and Mr. 
Hiatt will be asked to come.
    And let me just ask, is there anything that any you would 
like to--any point you want to make?
    Mr. Zielinski, you haven't responded or answered any of my 
questions. Is there any point you want to make given what 
you've heard, the questions?
    Mr. Zielinski. Yes, I would just like to--in partial 
response to the staff question with regards to the CIO, I'm not 
entirely sure NLRB is covered under the CFO Act because of its 
size. The agency has, in the wake of problems with the computer 
system, brought in a new director of management information 
systems branch who just came on board in the last 2 weeks, who 
was a deputy CIO at GSA, in fact. I think that may well address 
the question. I'm not sure if GAO is even aware of that. They 
are attempting, I think, to tighten up in the management 
information system area.
    The other thing is I--I think perhaps to relieve the 
chairman's concerns about our perspective on the complaining 
and so forth, I can tell you that that has been an element 
within the inspector general's office.
    Mr. Shays. That's been a what? I'm sorry.
    Mr. Zielinski. An element within the inspector general's 
office. And we've had, I guess for 2 years now, a strategic 
plan both for the audit side and the investigative side of the 
office. And that's something under review at this time to 
update.
    So it's not necessarily a lack of cognizance, but it's kind 
of like rowing in the rowboat upstream against the current with 
the size of the staff and amount of issues that are there.
    Mr. Shays. OK. Thank you.
    Any comments, Ms. Joyner or Mr. Allen?
    Ms. Joyner. I would just like to reiterate that I think 
what this strategic plan exercise provides the NLRB is an 
opportunity to look beyond what they've done, possibly quite 
well in terms of tracking what they have been doing and how 
fast, and to focus on the results and why they exist and what 
ought to be different in the workplaces out there as a result 
of their actions.
    Mr. Shays. OK. All set, Mr. Allen?
    Mr. Allen. Yes.
    Mr. Shays. OK. Let me just recess and apologize to the 
third panel, but we'll be back very quickly.
    Mr. Allen. Thank you.
    [Recess.]
    Mr. Shays. Stay standing, and we will swear you.
    We call this hearing to order and invite Mr. Daniel Yager, 
vice president and general counsel, Labor Policy Association; 
Mr. Jeffrey Joseph, vice president of domestic policy, U.S. 
Chamber of Commerce; and Mr. Jon Hiatt, general counsel, AFL-
CIO.
    And we are happy to have you here. Raise your right hands.
    [Witnesses sworn.]
    Mr. Shays. Thank you.
    This has been a long day, and you are probably saying, why 
did I get here so early? Maybe you were smart enough not to get 
here so early. I do appreciate you being here. All three of you 
have very important testimony. I think you will probably want 
to express some views that we haven't yet heard, and we welcome 
that.
    We will start as I called you and begin with you, Mr. 
Yager, and then go to you, Mr. Joseph, and then Mr. Hiatt.

   STATEMENTS OF DANIEL V. YAGER, VICE PRESIDENT AND GENERAL 
  COUNSEL, LABOR POLICY ASSOCIATION; JEFFREY H. JOSEPH, VICE 
 PRESIDENT FOR DOMESTIC POLICY, U.S. CHAMBER OF COMMERCE; AND 
          JONATHAN P. HIATT, GENERAL COUNSEL, AFL-CIO

    Mr. Yager. Thank you, Mr. Chairman.
    Mr. Shays. Thank you very much.
    Mr. Yager. My name is Dan Yager. I am general counsel for 
the Labor Policy Association. This is an organization 
representing the senior human resources executives of over 250 
major corporations. We appreciate----
    Mr. Shays. Can you move the mic down just a little speck?
    Mr. Yager. Am I too loud?
    Mr. Shays. No, no, you're not loud enough. It's a little 
far away from you----
    Mr. Yager. That's new. That's the first time anybody has 
complained of that, Mr. Chairman. Usually, people tell me to 
tone it down.
    Mr. Shays. Maybe what you say, they tell you to tone it 
down.
    Mr. Yager. Content? No, I can't agree with you there.
    I appreciate the opportunity to appear before the 
committee. I think even more so, our organization appreciates 
this committee focusing on this agency, because I think our 
concern, a lot of it, is that over the last several years, and 
not just the current regime, there really has been a lack of 
public or congressional attention to this agency. And in part 
because of that, and because of a number of other factors, we 
really feel like the agency has, to a large extent, 
degenerated. It has become viewed by many parties as really a 
political agency, and there is a feeling that to actually get 
justice, if you can afford it, you just sort of wait out the 
Board's process and then get the case into the Federal courts 
where you are more likely to get some consistency, some 
reasonableness. And, as you might imagine, only people who can 
afford to do that are actually able to do that. And for the 
little employer, that doesn't help too much.
    Obviously I don't have enough time today to go through all 
the cases that we have described to document our concerns. 
Earlier this year, we published a monograph, ``NLRB: Agency in 
Crisis,'' which I believe we sent to you. In our testimony, we 
primarily focused on updating that and not going back and 
reiterating those cases but using some of the new cases.
    We have a number of concerns. I will just throw out one 
example: the perception that when there is an election, and the 
union loses, the Board will very often use any minor 
transgression by the employer to call another election and give 
the union another bite at the apple.
    On the other hand, when the shoe is on the other foot, we 
don't always see that to be the case, and there are a couple of 
recent cases that have even gone so far as to say that where 
there are allegations that the union or somebody actually 
forged union authorization cards--those are the cards that a 
union will use to get the employees to sign to show the Board 
that there is enough interest to have an election. There have 
been allegations in a couple of cases where those were forged. 
This was after the election.
    The Board actually took the position that those allegations 
were irrelevant, that in fact once the employees had voted on 
whether to have a union or not, alleged forgeries of 
authorization cards were irrelevant.
    Now, from my point of view, if I was an employee and I had 
just voted for a union and had later found out that they had 
actually been fabricating signatures on official legal 
documents, I might want to have another chance to vote on that 
union.
    That's one example. There are numerous other examples.
    Mr. Snowbarger went through a number of complaints about 
all the numerous baseless charges that are filed, and these are 
frequently part of what is called a corporate campaign which is 
designed to harass an employer and cause it to expend precious 
resources litigating matters that really don't have any merit. 
While the Board continues to allow that sort of thing, in a 
couple of recent cases they have actually moved against 
employers who, in State court, have attempted to defend their 
own legal interests.
    For example, Beverly Enterprises had been subjected to some 
libelous activity by the SEIU on the picket line. They sued 
SEIU in State court, and, in turn, the Board went after them 
and in fact even tried to get an injunction to stop Beverly 
from defending its own interest in State courts completely 
outside of the labor laws.
    So, while at the same time they are allowing unions to 
harass employers, they are taking away a lot of the employers' 
defenses.
    I think a lot of the problem we see today is that the 
Board, I think, to some extent, has outlived its usefulness at 
least in the adjudication of unfair labor practices. I think 
there is still a need for the Board to administer elections. 
You need a neutral party to do that sort of sensitive issue. 
But in the adjudication of unfair labor practices, I think the 
concept in the thirties was that we have got this broad new law 
that we are passing and it is going to apply to all of these 
industries; we need some expertise from those industries and 
some workplace experts to help translate that law into the 
various instances that it will apply to.
    Well, it has been 60 years. The law has pretty much been 
fleshed out. We are down to nuances now, and what we have seen 
for the last 15 or 20 years is really just nuances and a 
shifting of policy depending on whether it happens to be a 
Republican Board or a Democratic Board.
    In the meantime, what is happening to the parties--and we 
even heard this this morning--is a long, lengthy process to get 
a case through the Board which can take anywhere from 1 year or 
2 to sometimes 5 or 6 years. We give an example in our 
testimony that is 8 years and counting and still hasn't been 
resolved.
    We would query, wouldn't it perhaps make more sense to go 
right into Federal court? The Federal courts----
    Mr. Shays. May I interrupt you, since I am the only person 
here. They don't have the ability right now if it is a long 
case to just go directly to the courts?
    Mr. Yager. Well, they can try an injunction, Congressman, 
and in fact----
    Mr. Shays. I am talking about the two parties.
    Mr. Yager. Oh, no; you have to go through the NLRB for most 
cases. There is a very narrow range of cases dealing with 
secondary activity.
    Mr. Shays. That might be something all three of us can talk 
about, and if I forget to ask, I'd love you to respond to it.
    I'm sorry to interrupt.
    Mr. Yager. Actually, we would be very interested in 
pursuing this with you, Congressman, because if you look at all 
the other cases that the courts now deal with in the employment 
area--Americans with Disabilities, complicated cases in the 
antitrust area--I don't think the courts necessarily need a 
panel of experts any more to filter through these various case. 
It may make more sense and it may make for quicker relief and 
quicker resolution of the issues to go right to Federal 
district court and have the trial there.
    One possibility would be to retain the general counsel 
function. There's pros and cons both ways on that. But I think 
where you need to get past and where most of the really bad 
delays occur are after you have had the trial, the fact-finding 
process by the administrative law judge. The matter then sits 
before the court--before the Board for, even under a good 
Board, a year and a half. I am not sure what the exact averages 
are or the mean, but I know it's at least somewhere in the 9 
months to a year case. But it is certainly not unusual for a 
case to sit there for a year and a half or 2 years. And then if 
you wind up going to the courts anyway, what did you gain by 
having that case sitting before the Board?
    I also think that the Board, in the recent seeking of the 
injunction against the Detroit newspapers to which we are 
strongly opposed, it is interesting because Chairman Gould--and 
I believe he included this in his testimony--wrote a rare 
decision as to why he was agreeing to authorize the 10(j) 
injunction. A large part of his reason for authorizing it--and 
I think he more or less said that this morning--was to avoid 
the lengthy delays that further adjudication by the Board would 
accomplish.
    Well, to me, that is an admission, what possible purpose is 
the Board serving here?
    I might add as an aside that that case sat before the Board 
for 2 years before it even did get to an administrative law 
judge decision, and the general counsel never sought 
expeditious review by the administrative law judge and didn't 
seek an expeditious review by the Board, which makes it 
puzzling as to why 2 years later, all of a sudden, it would be 
all that urgent that they would proceed with a 10(j) 
injunction.
    And on that, I think I'm--in the interest of time, I think 
I will go ahead and finish before my regular time is over.
    Mr. Shays. Actually, we extended. Your regular time is 5 
minutes, but we are giving witnesses 10. Since you waited so 
long, you deserve that at the very least.
    Mr. Yager. I believe I've said everything that I need to. I 
appreciate the opportunity to appear, and I will be happy to 
answer any questions.
    [The prepared statement of Mr. Yager follows:]

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    Mr. Shays. Mr. Joseph, you will have 5 minutes, and I'm 
going to roll it over another 5 if you need it.
    Mr. Joseph. Thank you, Mr. Chairman. I appreciate the 
opportunity to be here.
    I'm Jeff Joseph with U.S. Chamber of Commerce. Our Chamber 
is a federation of more than 3,000 State and local Chambers, 
more than 1,200 associations, and about 200,000 companies. Most 
of our members are small businesses, most of our members are 
not unionized, but nevertheless I am here to report the 
perception that they all seem to be getting that the NLRB, as 
an agency, has lost its focus from once being an objective 
arbiter of labor-management disputes into something that has 
gone into the captive side of organized labor.
    The perception they have is that the political structure 
has overtaken the efficiency and the administrative functions 
that were originally delegated to the agency and it will take 
strong oversight by the Congress and this committee to try and 
provide balance back into the process.
    I think it's self-evident that the Board's critical role as 
an impartial and independent agency was unilaterally changed by 
the current chairman who, not long after being confirmed, made 
no secret of the fact that he considered himself a member of 
the President's administration. He said the same thing under 
oath this morning.
    Quite frankly, I have a hard time understanding how he can 
get away with that. This reflects his belief somehow that the 
Board is not a neutral, independent agency bound to enforce 
existing law but, rather, a policy-driven organ somewhat 
related to the administration. As a result, we believe the 
Board's decisions are tainted with the suspicion that its 
determinations are designed to achieve the political ends of 
the administration rather than the purposes and policies of the 
National Labor Relations Act.
    How can he say that, since they are a judicial function, 
and then mention that he is a member of the President's 
administration? How can Congress, which has to arbiter between 
executive branch agencies and independent agencies, allow 
someone who is independent of the administrative branch walk 
around and say that he is there to follow the directions and 
the goals of the administrative branch? I think it is clearly 
improper, if not illegal.
    We believe that there are other factors that erode the 
Board's credibility, Mr. Chairman. You have talked about the 
situation of just having a few people there, only one confirmed 
by the Congress. That obviously undermines the credibility of 
the agencies in the labor management community as well as in 
the courts. We think the Board's credibility has been 
diminished by other actions as well: Salting, which was raised 
earlier; corporate campaigns; secret ballot elections; new 
rulemakings; a number of efforts that are very clearly, from 
our members' perspective, being undertaken to support the 
unions in their organizing efforts.
    If you stop and step back for a second and look into the 
world of business today, you see the stock market at a record 
high, the economy doing great, 90 percent of the employees not 
choosing to be in unions, the majority of workers are now 
working for small businesses, and you find as employees have 
chosen over the last several decades not to become members of 
unions, union strategies, instead of trying to encourage 
workers to go their way, are using tools to try to coerce 
employers to basically throw up their hands and say, OK, you 
guys win; come on in and take them over.
    We think this whole confrontational strategy of management 
versus labor which was set up 65 years ago in the industrial 
era makes no sense at all as we go into the 21st century. And 
to second some of the comments that were just made, we think 
it's time to look at all of the labor laws, including the NLRA, 
in terms of thinking what processes and procedures make sense 
in dealing with workplace rules and regulations.
    The Board, under Chairman Gould, appears to be creating new 
laws even though he assured Senators during his confirmation 
hearings that he would merely interpret existing laws. But 
during the past 3 years, the Board has overruled or 
significantly altered the law a number of times, and the Court 
of Appeals has not looked favorably on these actions. My full 
testimony cites a number of actions where they have been taken 
to task for again going off of the historical, beaten track. 
And because of our--the allegations that we are making that 
everything is tied to being a member of the administration and 
the goal of trying to align NLRA and NLRB actions with the 
intentions of the administration, we think the greatest 
challenge to peaceful and cooperative labor relations lies 
ahead.
    As you know, in February, Vice President Gore announced to 
the AFL-CIO Executive Committee that the Clinton administration 
planned to issue an Executive order and regulations that would 
virtually require all government construction projects to be 
performed pursuant to project labor agreements and would debar 
government contractors that violated or were alleged to have 
violated various labor laws, including the NLRA.
    You heard in testimony earlier today about frivolous 
charges and how many get dismissed, yet this becomes a new 
stick, a new club, that could be used potentially by organizers 
as a way of intimidating employers to coerce to union demands.
    We think that in light of the administration's plans, it is 
appropriate for this committee and this Congress to ask the 
Board a number of questions.
    First, Congress should know to what extent NLRB employees, 
including Board members and its general counsel, have been 
consulted by the administration as it prepares new 
administrative regulations.
    The next question should be an effort to learn to what 
extent would such regulations affect union organizing and the 
NLRB, and would the Board's role enforcing those regulations 
require more funding or less than it now receives, and what 
role will the Board have in enforcing the regulations in 
consulting with other agencies, and to what extent would that 
role fit in with the Board's current responsibilities.
    We believe that labor relations stability is absolutely 
essential to most businesses, especially those whose employees 
are represented by a union. But when the Board routinely alters 
established precedent, it's not possible for the employers to 
know whether the actions that they have planned are potentially 
in violation of the NLRA. This information could be essential 
to avoid a Board finding of huge liability and back pay or 
other make-whole relief.
    The Chamber urges Congress to make more aggressive steps to 
control what appears to be the NLRB's efforts to rewrite the 
National Labor Relations Act, effectuate administrative policy 
objectives, and provide even more weapons to aid labor's 
organizing drives.
    Thank you.
    [The prepared statement of Mr. Joseph follows:]

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    Mr. Shays. Thank you.
    Mr. Hiatt.
    Mr. Hiatt. Thank you, Mr. Chairman.
    This is the fourth congressional committee to hold an 
oversight hearing on the NLRB in the past 2 years. The prior 
hearings have largely served to provide a platform for those 
who have declared war on the Board and to pursue their 
continuing attacks, and I want to say that it was most welcome 
but, at the same time, a sad commentary perhaps on what has 
come before, that the chairman felt compelled to assure us that 
today, at least, there is no hidden agenda.
    Mr. Shays. Let me just tell you, Mr. Hiatt, only because 
I'd heard that criticism from your organization, and, frankly, 
I was slightly outraged by it. So I just want to explain to you 
why. It came from your organization, since you mentioned it, 
and we have been deficient in not looking at all labor 
activities because we have five panels.
    So I find it interesting that you want to start your 
testimony this way.
    Mr. Hiatt. I am sorry, Congressman. I just wanted to say 
that we have not suggested that about this subcommittee in the 
slightest, but the fact is that in some of the hearings that 
have preceded this one, the focus has been not on the kinds of 
questions that were asked of the Board this morning or the 
kinds of testimony that was delivered but, rather, simply on 
providing a forum for complaints about actions that the Board 
has taken now, no different from those that the Reagan and Bush 
Boards took and were taken in prior decades, but which some 
segments of the business community, at least, are suggesting 
represents such a diversion from the past.
    There was a commission established by the President 3 or 4 
years ago headed by former Secretary of Labor John Dunlop, 
composed of both labor and management representatives, in which 
business and labor and others were invited to testify, and the 
business community was effectively invited to describe all that 
they felt was wrong with the NLRA and the NLRB both in terms of 
substance and in procedure, and they could not--the business 
community kept assuring the commission that the law was working 
just fine, that the Labor Board was working just fine, that 
there was absolutely nothing wrong, that no changes were 
warranted, with the one possible exception that some members in 
the business community felt should be changed concerning 
section 8(a)(2), the TEAM Act kinds of issues.
    And yet today, because of what is viewed as a more 
aggressive enforcement of the law, some of these same 
representatives believe that total overhaul both of the law 
itself and of the agency is called for.
    I just want to be clear that the AFL-CIO also sees much to 
be disappointed about in the way that the act is being 
administered today. We are certainly troubled by the large and 
growing backlog of cases awaiting investigation, a backlog that 
has nearly doubled in just 3 years. We are troubled by 
restrictions that have been placed on investigators that limit 
their ability to ferret out the facts. We are troubled by the 
vast majority of meritorious charges that continue to be 
resolved by a minimal slap on the wrist. And we are troubled by 
the continuing backlog of cases awaiting decision by the Board 
as the median length of time from the filing of a charge to a 
decision by the Board is stretched to over 18 months.
    And especially in light of these delays, we are deeply 
disturbed by what appears to us to be a significant retreat by 
the Board in its use of the section 10(j) injunctions, which 
are intended to secure immediate relief from unfair labor 
practices committed by employers or unions.
    We are also disappointed by the fact that there is only one 
confirmed member on the Board, two recess appointees, and two 
vacancies, and we appreciate your offer to try to spur the 
administration to addressing that. We think the Senate 
leadership needs to be spurred as well, since we are told that 
the Senate leadership has indicated that they have no interest 
in having these appointments taken up for consideration. And if 
that is wrong, we would welcome action in that area.
    Notwithstanding all of that, the fact remains that the NLRA 
is the only national law that recognizes the fundamental right 
of working people to associate freely for their mutual aid or 
protection. And they have to depend on the general counsel's 
office and on the Board to vindicate those rights of free 
association. And when the agency is bloodied, it is working 
people who suffer, and to some degree that is what is happening 
now.
    Consider the matter of NLRB funding. Law enforcement, as we 
have heard this morning, is very labor intensive work. The cost 
of lawyers and investigators continue to rise, yet since 1985 
the Board's budget has been slashed in inflation-adjusted terms 
by 17.4 percent and the agency's had to reduce its staff by 
more than 25 percent.
    And as disturbing as this defunding has been, the 
appropriations process itself over the past 2 years has, we 
fear, done even more damage to the cause of effective 
enforcement of the laws. The Board has been overtly threatened 
with budget cuts if it ruled in a particular manner in a 
particular case that was pending before it. To its enormous 
credit, we feel the Board has stood up to those threats, but as 
a result of its independence, the Board has faced the 
possibility of budget cuts so large that they would have 
destroyed the agency.
    And even though those cuts--threatened cuts were scaled 
down, the Board has suffered a real cut of 6 percent over 2 
years as the price for being, in the words of the chairman of 
the House Appropriations Committee, ``too intrusive.''
    Meanwhile, as I say, some segments of the business 
community have launched a propaganda war against the Board that 
is designed to rationalize the defunding and the interference 
with the Board's independence by illegitimizing the agency.
    Mr. Yager says that the only issue that seems to count in a 
dispute before the general counsel and the Board is, how can 
the interests of the union involved be enhanced by the agency? 
And while that rhetoric is powerful, the specific charges lack 
any basis in fact. Let me just give you a few quick examples.
    The LPA claims that the general counsel's office cares more 
about furthering the interest of the union, but in fact the 
general counsel is dismissing upwards of 65 percent of the 
charges filed with him, three-quarters of which are filed by 
unions and employees, and this is the same percentage roughly 
as was true under the Reagan and Bush Boards and before that.
    Second, while the LPA accuses the Board of making Herculean 
efforts of finding employer violations to overturn elections 
when unions lose, in fact those objections continue to be 
overruled in 75 to 80 percent of all cases; again, the same 
percentage as under the Reagan and Bush Boards and the Boards 
before that.
    Third, the LPA claims that where employees have rejected a 
union in an election, the Board has simply ordered the union to 
bargain with the union anyway by making bargaining orders a 
common tool, and there have been a lot of unfair labor 
practices during the campaign. But, in fact, the Gould Board 
has issued an average of 8.4 such orders per year, which is a 
rate which is a third below that of the Reagan and Bush Boards 
were issuing bargaining orders at, a fact that is not mentioned 
by the LPA or the business community that now complains so 
loudly about these bargaining orders.
    Fourth, the LPA claims that the Gould Board has been the 
worst performer of any board in the past 30 years of securing 
enforcement of its decisions in the courts of appeals. But if 
you use the LPA's own definition of wins and full wins, partial 
wins, partial losses, and so on, the Board's win rate in fiscal 
year 1996 was 78.6 percent and in the first 9 months of fiscal 
1997 was 79.7 percent, which perfectly tracks the Board's 
historical rate of 79.4 percent under the Bush-Reagan years and 
before.
    None of this is meant to say that--and I would just point 
out that the three new cases that Mr. Yager relates in his 
testimony this morning as examples where courts of appeals 
overturned the Labor Board recently are cases which in one case 
was initiated by General Counsel Hunter, Republican general 
counsel; in one case joined by Board Member Cohen in a 
unanimous decision that included the Republican member of the 
Board; and in the third case----
    Mr. Shays. I don't understand when you say--what was 
unanimous? The Board had a unanimous decision and then they 
went and asked the court to overturn a case they had ruled the 
other way around?
    Mr. Hiatt. The Board sought enforcement in the Court of 
Appeals.
    Mr. Shays. Right, right, right.
    Mr. Hiatt. Or the losing party sought to overturn the 
Board's decision, either of which is a common way of getting to 
the Court of Appeals. And those were indeed three cases where 
the particular courts took the Labor Board to task. That 
happens about 20 percent of the time, but it always has. It 
happened in the Reagan-Bush Board years, it happened before 
that, and the three examples that are given today where a 
particular court of appeals got particularly impatient with the 
Labor Board were cases that were either initiated before Gould-
Feinstein came along or were joined by Republican members of 
the Board.
    Finally, the examples of cases that are cited now that the 
LPA says, well, you can't just look at the statistical 
analysis, you have to also look at the quality of the 
decisions, and so a number of cases very selectively--in the 
book that Mr. Yager has provided the committee in the past and 
in today's testimony, very selectively parts of a few cases are 
used to mock the Board's case handling today, the kinds of 
decisions that are coming out today.
    So, for example, this forgery case that Mr. Yager refers to 
in his testimony today is a great example of that. It sounds 
terrible. It sounds like the Board is approving forged 
authorization cards. But if you look at the facts of this case, 
what happened is that there were 131 people in the unit; 100 of 
them had signed authorization cards. Under the Board's rules, 
all that was needed was 30 percent, and a handful were 
allegedly forged cards. The employer wasn't even able to prove 
that they were forged, but the Board said, even if those few 
were, that is irrelevant, you have gotten way more than the 30 
percent, you are entitled to a secret ballot election, which is 
where you can really test employee sentiment anyway.
    So we will supplement the record, if we may, with respect 
to the cases that were provided, as we did last year. The 
handful of cases that are provided to make a mockery of the way 
the Board is now deciding cases, we submit, gives a very, very 
unfair and one-sided opinion. And what is new, we submit, is 
not that the performance of the Board--is not the performance 
of the Board itself but of these tactics of some Members of 
Congress, not this committee, and some significant sectors of 
the management community to delegitimize and destabilize the 
agency, and those destructive efforts, rather than the record 
of the Board itself, are indeed most sorely in need of your 
committee's attention.
    And I thank you for the opportunity.
    [The prepared statement of Mr. Hiatt follows:]

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    Mr. Shays. I thank you for you being here. It's nice to 
have your testimony.
    When I look at my understanding of the numbers of requests 
by the Board for 10(j) relief, in 1995--I hope this is a 
complete year--there were 47 requests, and--oh, it is partial. 
So let me take 1994. In 1994, there were 85 requests and 62 
petitions filed. In 1993, there were 42 and 34.
    When would the Gould Board have been set up? They would 
have been there in the 42 and 34, I believe.
    Mr. Yager. No; they came in in April of fiscal year 1994.
    Mr. Hiatt. March 1994.
    Mr. Shays. I honestly don't see all that much difference. 
Admittedly, in 1994 there were 85 and 62 petitions filed, but 
in 1993 there were 42 and 34 petitions; and 1992, 27 and 24 
petitions. So why don't we just start with that, and tell me--
actually, I want to put on record something.
    I am going to take your first point, Mr. Yager. It seems 
logical to me that if you can bypass a court system and go 
directly to a Board, and hopefully resolve the case, to me, it 
seems more logical than going directly to court.
    Let me ask you the first thing. How many of the cases that 
the Board decides are actually then furthered to the courts? 
What percentage?
    Mr. Yager. Of cases that are actually decided by the Board?
    Mr. Shays. Once the Board has made a decision.
    Any of you?
    Mr. Yager. I can find that for you, Congressman.
    Mr. Shays. Would we say it is 50 percent; 20 percent?
    Mr. Yager. It would be my guess on the 50 percent.
    Mr. Hiatt. No; I think it is closer to 20 percent. It is a 
relatively small percent. Most of the cases are not appealed by 
either the--by the losing party, nor does the Board need to go 
to court for enforcement, because they are complied with in the 
majority of cases.
    Mr. Shays. But my judgment is, any time you can reduce the 
number of cases that go before the courts, you would want to. 
But what I don't understand is that it would strike me, 
however, that if a case is pending for more than a period of 
time, that you would almost automatically want to go right to 
the courts. There would be a mechanism that would enable either 
side to petition to say this is just taking too long, we want 
to go directly to the courts.
    What would be the response of any of the three of you?
    Mr. Yager. Well, I think there have been suggestions in the 
past as part of labor law reform to do something like that, but 
it's more along the lines of obtaining something like an 
injunction; in other words, injunctive relief in the interim 
for the grieving party until the Board has actually ruled on 
the case.
    We obviously would have a problem with that. And that is 
our problem with 10(j)'s; you don't get a full adjudication of 
the matter before the Federal court. If what you are suggesting 
instead is a mechanism whereby the case goes to the court and 
it is fully litigated before the Federal court, I think that is 
a step in the same kind of direction that we are suggesting.
    Mr. Shays. My suggestion is that if the Board doesn't reach 
a decision by a period of time, that either party would have 
the ability to go to court and fully adjudicate. It would seem 
to me that that might be a solution to both sides. There is 
nothing that tells me that being in court--being before the 
Board 6 years is a benefit to labor or management. I think it 
is a plague on both houses.
    Mr. Joseph, why don't you respond, and Mr. Hiatt, and then 
we will come back.
    Mr. Joseph. I think we need to rethink why we are here. We 
are here because 65 years ago you had 37 percent of the work 
force in unions and you had very tricky legal issues that it 
was presumed that judges in general would not understand. And 
so this kind of specialized body was set up, allegedly with the 
expertise to be able to wade through the negotiated contracts 
to determine who really struck John and who is entitled to this 
or that. And you have an OSHA review commission, you have a 
number of specialized groups, because the assumption was, the 
generalized bench couldn't figure it out.
    Now you have 90 percent of employees not in union settings 
and the courts handling all sorts of court-related issues, some 
judges to the point of saying it is overwhelming, how many they 
get.
    And I am not trying to suggest just do away with this and 
continue to burden the courts with everything else, but I do 
think that there needs to be a serious academic discussion 
about the relationship of all the labor laws and all of the 
potential enforcement mechanisms and how they are done.
    Mr. Shays. I hear you have made that point, and I am asking 
you to look at an incremental issue here. I know that you have 
your desire to make major reform of the system. But would that 
be an improvement to both sides to allow that if they were 
before the NLRB and the NLRB simply hadn't acted by a 
particular period of time--a year, 2 years, 3 years--some 
particular period of time, that either side would have the 
right to go to court directly and not wait?
    Mr. Joseph. I can't subscribe to a specific period of time, 
but I can confirm what you said. We have heard businesspeople 
saying for years that these long, protracted proceedings do not 
benefit them.
    Mr. Shays. So you are saying that you can't speak for the 
Chamber on an issue like this?
    Mr. Joseph. Because we haven't taken a specific position, 
unlike my colleague here.
    Mr. Shays. So you can speak on total reform, but you can't 
speak on this particular issue here?
    Mr. Joseph. That's right.
    Mr. Hiatt. We would certainly be interested in discussing 
with the business community and with any committee whether 
there could be some kind of procedural reforms that could help 
speed things up. I think there would have to be a number of 
questions that would have to be discussed as part of that.
    For example, if moving to court simply then meant the 
beginning of a new round of delays there, I mean, in our 
experience, the courts are as--as bad as things are at the 
Board, the time it takes to process the cases through courts 
can be even worse. And, furthermore, once you get to court 
under that kind of a procedure, does that mean that the full 
range of formal discovery applies, or do you still have what is 
really a much more informal and, in some ways, more economical 
system at the Board?
    There is no private right of action right now under the 
NLRA. It is easy to forget this is not just unions and 
employers that are using the NLRB. A large proportion of the 
charges that are filed are brought by individual workers in 
nonunion facilities, as well as unionized facilities, who do 
not have representation, and particularly in low-wage jobs----
    Mr. Shays. Tell me how it works for nonunion. I have made 
the assumption--I'm exposing my ignorance--that most of the 
cases that are adjudicated by the Board are representative 
cases.
    Mr. Hiatt. I think a majority are, but there is a large 
minority, somewhere between 25 and 50 percent, I believe, of 
cases are filed by individual employees, and in many cases they 
are just as protected against--under the National Labor 
Relations Act as a union employee is against retaliation for 
organizing activities or any kind of concerted protest. If two 
workers go to the boss and complain about something and get 
fired, even if there is no union in the picture, that is the 
one law where they have protection. They go to the Labor Board, 
and they file charges.
    And unlike under wage and hour laws or title VII, there is 
no private right of action. They are totally dependent on this 
agency to investigate that case and, if there is merit to it, 
to process that case. They could not, as it now stands, go to 
court on their own.
    Mr. Shays. One of your points would be that there is a 
record developed in the Board proceeding that then the court 
makes a determination so they don't--they basically have a 
transcript and a record to pass judgment on?
    Mr. Hiatt. That might be one way--I mean, if you took--I am 
sure you could talk about taking the proceedings and the 
investigation as it developed through a certain point at the 
Board and saying that if the Board hadn't concluded, that there 
should be some access to the courts, and I think that would be 
worth talking about.
    But I think that there are--it does raise, as you suggest, 
a number of issues about how much of the record then already 
applies, depending on what stage you are at: Is there formal 
discovery that starts over again, and so forth, is what we 
would have to explore.
    I do find it somewhat ironic that 3 years ago, when we 
would have loved to have a discussion of necessary reforms 
under both the law and procedure, there was no interest 
whatsoever, and now that you are finding a little bit more 
energy in seeking injunctive relief and----
    Mr. Shays. Is that when this was a Democrat-controlled 
Congress and a Democrat President?
    Mr. Hiatt. Yes.
    Mr. Shays. The irony is, I remember when I was in the 
Statehouse and we wanted to repeal the dividends tax as 
Republicans in the minority, and when we got into the majority, 
we decided what we wanted to do was, we wanted to reduce the 
sales tax on clothing and a whole host of other things, and we 
forgot about the dividends tax. And as soon as we were defeated 
and were now in the minority again, someone said, hey, the 
first thing we should do is repeal the dividends tax.
    This may be a parenthetical that really may seem like 
another question mark not directly related to what we are 
talking about, but when you talk about--let me just establish 
this point. My understanding was that, basically, NLRB was 
looking at collective bargaining units and dealt with employees 
who were part of a collective bargaining unit. And that is not 
correct. This is any employee?
    Mr. Hiatt. That is right. It is not limited to collective 
bargaining employees.
    Mr. Shays. It tends to be individuals that are in 
collective bargaining units?
    Mr. Hiatt. Certainly a disproportionate number of 
employees, of disputes, that come before the Board do involve 
unionized employees, but the law itself is not so limited and 
use of the Board is not so limited.
    Mr. Shays. One of my theories about why you have a decline 
in the enrollment in some cases in unions is, obviously, 
smaller businesses. You have seen the greatest growth in the 
public sector. What you didn't see on the bargaining table 
sometimes happens through legislation. And now it seems to me 
that a lot of the argument for why some people were going to 
join unions you have put into law with so many protections. And 
I am basically then leading to this question of your 
description of what existed 60 years ago and what exists today.
    I think it was you, Mr. Yager, or Mr. Joseph, was talking 
about the fact that collective bargaining is a very changed 
process and more institutionalized. I would like you to 
elaborate a little bit more on that, and therefore--Mr. Yager, 
was it you?
    Mr. Yager. I can comment. I don't believe it was my 
remarks.
    Mr. Shays. I heard the argument--and I am sorry--that we 
don't need the Board, and I guess I was thinking--I was going 
to interrupt you, and say for me, if I could take it out of the 
courts, I want it in the Board in a more informal process, tell 
me what would be the effect if you didn't have the NLRB.
    Mr. Joseph. Well, you have, as I described--I mean the 
facts of life are that the majority of people today are working 
for small businesses. Now if there is a work unit of 5 or 10, 
what is happening in the general sense that--that to your 
point, Mr. Chairman, a lot of the employee benefits that the 
unions requested 10, 20, 30, 40 years ago are all standard 
package today; there are obligations that every employer must 
provide for the good of the individual, for the good of the 
country, for the good of the economy; and, by and large, it's 
competitive pressures in the global marketplace that determine 
what any employer and employee end up with in terms of piece of 
the pie after all is said and done.
    The fact that you have a smaller percentage every year of 
people who are actually covered by union agreements means that 
if that continues over some period of time, you will continue 
to have a minority legal system, a minority legal structure, 
for a growing percentage of people in the workplace. And just 
with regard to, by and large, union organizing or 
representational or trying to do representational kinds of 
activities, other disputes go on elsewhere, safety disputes are 
elsewhere, affirmative action or sexual discrimination or 
whatever.
    So it goes to my general point. If every agency that 
affects labor-management relations in the workplace is left to 
itself and its respective oversight body to think just 
singularly what to do with it, you are still going to end up 
with a dysfunctional system where employees and employers are 
still playing different games. And depending on what the nature 
of the dispute is, it's a different process, a different 
procedure, different hoops; it is a different kind of thing.
    And I don't know why we couldn't, in the broadest possible 
sense, you know, have some sort of intellectual, serious 
discussion about how to put all the employment laws and 
practices on the table and talk about what makes sense for the 
21st century.
    We don't have to have this confrontational atmosphere that 
was rooted in the laws in the thirties. We are very much in a 
competitive global world marketplace, and I think that not only 
do employers know that but the average employee knows that, 
whether they are in a union workplace or in a nonunion 
workplace. And so against this, I think that the possibility of 
having serious discussion about change is something that could 
be framed in an apolitical way: What is the best way just to 
restructure how we handle disputes and grievances in the 21st 
century?
    Mr. Shays. Mr. Yager, do you want to respond?
    Mr. Yager. Well, I think just going back to the focus of 
the hearing on NLRB, clearly the importance of the NLRB has 
declined. Notwithstanding that there are charges filed from 
nonunion settings, the vast majority of the time the law is 
being applied in a situation where a union is either already in 
place or is attempting to organize that setting.
    To have this kind of elaborate structure and pay $170 
million a year or whatever it costs to continue to fund the 
agency at a time when you know interest in unionization is 
declining, the law is pretty well fleshed out. By the way 
responding to something Mr. Hiatt said, our disagreement with 
them several years ago when they were proposing changes was 
them using the law as an excuse for a failure of unionization.
    We have always asserted that the basic principles of the 
law are there and, really, unionization is a product of 
employee choice. I would agree with you. I think to a large 
extent they have legislated themselves out of existence by 
providing things like family and medical leave, pension 
protections under ERISA, Occupational Safety and Health Act. 
These days, why would you need to go to a shop steward when, in 
fact, most of the time you can take your case to either a 
government official or to a plaintiff's attorney?
    Mr. Shays. Mr. Hiatt, do you remember the question?
    Mr. Hiatt. I believe so.
    Mr. Shays. The whole issue is just, tell me why the Board--
I mean, I was expressing an opinion why I felt that so much is 
in legislation now that one of the strong selling points 
earlier on for unions--but that was really a side to the key 
point, which is: Is the Board still really relevant?
    Mr. Hiatt. Right. And I think if the Board--if the 
functions of the Board weren't housed at the Board, they would 
have to be housed somewhere else. One can devise--one can 
imagine transferring them to the Federal courts and 
transferring the costs of dispute resolution to private 
parties, taking that $170 million that is right now spent on 
the government and saying that private parties, including from 
your lowest wage individual employee who's fired for trying to 
join a union, to employers who believe that there is violence 
on picket lines, should be paying the cost of that kind of 
dispute resolution themselves.
    And that is a fair debate to be having. But the notion that 
that $170 million cost would go away and it wouldn't be needed 
anymore because we are approaching the 21st century or because 
there is no Labor Board, I just don't think there's any basis 
for saying that.
    Sure, there are many laws on the books, employment laws 
that provide a statutory floor now, be it economic floor like 
minimum wage and family and medical leave, or other kinds of 
employment regulation. But there is still only one law that 
governs the right of employees to join together to be able to 
negotiate with their employers their basic working conditions, 
and in some cases that may involve a desire to get paid more 
than minimum wage.
    And let's not forget that the National Labor Relations Act 
and the Fair Labor Standards Act that set a minimum wage were 
passed roughly at the same time. It was recognized that there 
would be these minimum floor statutes but, at the same time, 
that there was a proper place for workers to negotiate either 
for better conditions than the minimum, the statutory minimums, 
or for other things that are not addressed in the laws.
    And this is, the National Labor Relations Act, with all its 
faults--and we certainly agree that it could be improved--is 
the only law that ensures some degree of democracy in the 
workplace, some ability of workers to organize themselves 
together to have a voice, an effective voice, with the 
employer.
    And I think in a time when you are seeing that one out of 
every four organizing campaigns, at least one worker who takes 
a lead role in trying to have a union is fired, according to 
what is proven. I am not talking about charges that are 
dismissed--and in many of those cases it is more than one who 
is fired for trying to have a union--to think that there is no 
longer a need for some kind of government regulation about 
right to organize is just totally unrealistic.
    Mr. Shays. One of the amazing things is that it's only been 
recently that we allowed employees in this Congress to organize 
and we are still debating the issue of whether our own staff 
can. And whether you all agree with allowing for organization--
and I think you do to some measure--that is not the issue.
    What is amazing to me is that Congress for so many years 
was able to say that somebody else had to do it, but we didn't 
have to. And it has been a very important thing for me to have 
to pay my employee time-and-a-half who may not be in a 
supervisory role. And in some cases I think that it has been 
educational, because that has helped us want to look at time-
and-a-half off rather than time-and-a-half with pay.
    So in some way it works to those who don't want to see 
collective bargaining having us have to live under it. We say, 
gosh, it is not as easy as you say. And some ways it works to 
those who want to have collective bargaining to make sure that 
we understand how the law works and that we live under it.
    I am just going to ask one other question, and then, Cherri 
Branson, I am going to invite you to ask some questions since I 
am the only Member here.
    I will say to you, Mr. Hiatt, that I wish I had--because I 
kind of remember thinking about--I mean, I remember thinking a 
little bit uncomfortable--it wasn't you, Mr. Hiatt.
    Mr. Joseph. I apologize. You raised a question referring to 
the Board as the Clinton administration Board or the Clinton 
Board. I should believe that this--the NLRB is a true judicial 
body that is supposed to be fair to all sides. Do you think 
that Mr. Gould should be a little more careful in terms of how 
he refers to his Board? Do you think it is inappropriate to 
refer to it as the Clinton Board?
    Mr. Hiatt. If you are asking me, I have to confess that 
until Mr. Joseph pointed out that Mr. Gould had referred to it 
as a Clinton Board, I hadn't noticed it. I assumed that he was 
referring to the appointing officer, who in his case is 
President Clinton.
    I don't believe there is any evidence whatsoever that this 
Board, this Labor Board, has acted any more at the behest of 
the appointing administration than any other Board in our 
history that I am aware of.
    Mr. Shays. Since I didn't ask him, I feel a little--I am 
acknowledging I really probably should have asked him to 
respond. I hope his answer would be that we want you to know 
what we have done since I have been in charge in terms of 
moving cases or not moving cases. But I do think it probably is 
unwise for him to make reference to a Board as being a Clinton 
Board as opposed to a Reagan Board or a Bush Board.
    Mr. Joseph. Mr. Shays, I have heard him use the phrase a 
number of times. I see him wear it as a badge of honor.
    Mr. Shays. People should be proud of the work that they 
have done, but I am having to say that I will raise that 
question with him in a letter, not making a big deal out of it 
in terms of other than to just say that I think he may need to 
rethink that.
    Ms. Branson.
    Ms. Branson. Thank you, Mr. Chairman. I just have one--
well, actually I have one.
    Mr. Shays. You have about 5 minutes.
    Ms. Branson. There was an idea earlier about sort of a 
process where the Board could, or someone could, issue a letter 
to kick loose a claim after a certain amount of time. I would 
like to point out to the chairman that the EEOC does that and 
their backlog has not been significantly reduced. As a matter 
of fact, GAO has recently chided them for that.
    For Mr. Hiatt, some people have said that the controversy 
surrounding the Board has to do with the change in the post-
industrial service economy where competition is worldwide. Can 
you tell me whether the Board--excuse me. Can you tell me 
whether you believe that the economy plays a role in the 
controversy that currently surrounds the Board?
    Mr. Hiatt. I think it certainly does. There is no question. 
There are a number of factors that have affected the 
application of our labor laws and the labor movement and 
employees' relationship with unions, and the global economy is 
unquestionably one of those factors.
    But I do not believe that that in any way makes either the 
Labor Board or the act obsolete. What it does is, it changes 
the kinds of issues and concerns that workers have. More often, 
workers are seeking to negotiate on the threats that are posed 
by international competition, and in some cases that means 
holding up job security issues and plant closing issues and 
issues like that that certainly are not covered by any of the 
minimum floor statutes on the books, and, if anything, it just 
makes it all the more important that workers who do want to 
have some independent voice in the workplace and want 
independent representation should have that opportunity. And 
until we have a better system, I think it is irresponsible to 
be advocating the destruction of the existing one.
    Ms. Branson. Thank you, Mr. Chairman.
    Mr. Shays. Do you want to comment?
    Mr. Yager. If I could ask just a request.
    Mr. Shays. Not on the question? Just to ask--are you 
responding to the question just asked?
    Mr. Yager. No, I'm not. I am sorry.
    Mr. Shays. I am going to invite any of the three of you to 
respond, if there was a question that you wished I had asked 
you that you wanted to discuss. And if there is any closing 
comment you want to make.
    And if you want to start, Mr. Yager, you may.
    Mr. Yager. Yeah, I guess I would just go back to the 
original point. Clearly, you have got a law that was written 60 
years ago and it is a struggle to keep it up with the changing 
economy. Part of the problem that we have with the Board is 
that it has gotten very calcified and very myopic. There is an 
inability on the Board to look at the law in view of the 
changes. We saw that with the Electromation case that treats 
employee involvement committees the same way they treat 
illegal, sham company unions.
    You are more likely to get administration of the act and 
enforcement of the act with a broader perspective than if you 
do start looking more to the courts, which, as I say, the 
parties are inclined to do.
    I would like to ask--I didn't want to take the time of the 
committee to respond to each of the points that Mr. Hiatt made 
with some of the cases that we raised in our book and the 
statistics.
    Mr. Shays. The record is open if you are wondering if you 
can respond to any comments made.
    Mr. Yager. I would like to do that in writing. I just 
didn't want silence to be viewed as assent.
    Mr. Shays. No, it isn't. It is actually welcomed.
    Mr. Yager. I thought it probably was. That is why I 
decided.
    Mr. Shays. Only because of the time.
    The record is open Friday, Monday, and Tuesday? So at the 
end of Tuesday, you need to respond.
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    Mr. Shays. Mr. Joseph.
    Mr. Joseph. Just appreciate the opportunity to be here, and 
we appreciate your willingness to look into the Board.
    Mr. Shays. Well, we are happy to look into this issue and 
the Board. And we are troubled by some things we see and know 
that it is a factor of many things, but we are going to do our 
job and look at this Board and see how we can make it work 
better.
    Mr. Hiatt.
    Mr. Hiatt. Thank you, Mr. Chairman. I feel like I am in a 
``Jeopardy'' situation that I have to think, you know, what 
answer I want to give. So I have to tell you what the question 
is that I wish you had asked.
    I guess the only other point that I would like to make is 
that I think when we have these kinds of hearings--and this has 
certainly been a great deal less confrontational than some of 
the other hearings on the subject of the NLRB in the past 
couple of years. But when we do have these kinds of hearings, 
we lose track of the fact that some 95 to 98 percent of the 
functions that the Labor Board does do on a day-in-day-out 
basis on behalf of individual workers, unions and employers is 
not really in controversy at all.
    One of the points that Mr. Yager made in his testimony, I 
believe at one point, is that a current Republican member of 
the Labor Board has agreed with the Democratic members 97 
percent of the cases, and that is probably not atypical. It may 
be a little higher, because this three-member Board has not 
been taking very many controversial cases lately. But even at 
times when there are a number of controversial cases, the 
percentage of cases where the Board members who are appointed 
by Republicans and Democrats and where the business community 
and labor community would see the outcome exactly the same way 
and the procedures exactly the same way is extraordinarily 
high.
    And I think it is important to not lose sight of that, 
because the average worker on the average day has a great deal 
at stake in just having the regular functions of the Labor 
Board at their disposal. And I appreciate this opportunity, and 
we would be more than happy to work with you on any followup 
where you give us that opportunity.
    Mr. Shays. We will definitely have followup, and we look 
forward to working with all of you and thank you again for 
spending basically your whole day on this hearing. And thank 
you very much.
    And at this time, we adjourn.
    [Whereupon, at 4:53 p.m., the subcommittee was adjourned.]

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