[Joint House and Senate Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 110-416
 
                      THE NATIONAL LABOR RELATIONS 
                      BOARD: RECENT DECISIONS AND 
                    THEIR IMPACT ON WORKERS' RIGHTS 

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

                             JOINT HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                        EMPLOYMENT AND WORKPLACE
                          SAFETY SUBCOMMITTEE

                          COMMITTEE ON HEALTH,
                     EDUCATION, LABOR AND PENSIONS

                              U.S. Senate

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, DECEMBER 13, 2007

                               __________

                           Serial No. 110-73

                               __________

   Printed for the use of the House Committee on Education and Labor
   and the Senate Committee on Health, Education, Labor and Pensions


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html

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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California            John Kline, Minnesota,
Dale E. Kildee, Michigan               Ranking Minority Member
Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon, 
John F. Tierney, Massachusetts           California
David Wu, Oregon                     Kenny Marchant, Texas
Rush D. Holt, New Jersey             Charles W. Boustany, Jr., 
Linda T. Sanchez, California             Louisiana
Joe Sestak, Pennsylvania             David Davis, Tennessee
David Loebsack, Iowa                 Peter Hoekstra, Michigan
Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York           Tom Price, Georgia
Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                     Timothy Walberg, Michigan


          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut     MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa                     JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland        LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico            RICHARD BURR, North Carolina
PATTY MURRAY, Washington             JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island              LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     ORRIN G. HATCH, Utah
BARACK OBAMA, Illinois               PAT ROBERTS, Kansas
BERNARD SANDERS (I), Vermont         WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma

           J. Michael Myers, Staff Director and Chief Counsel

           Katherine Brunett McGuire, Minority Staff Director

                                 ______

            Subcommittee on Employment and Workplace Safety

                   PATTY MURRAY, Washington, Chairman

CHRISTOPHER J. DODD, Connecticut     JOHNNY ISAKSON, Georgia
TOM HARKIN, Iowa                     RICHARD BURR, North Carolina
BARBARA A. MIKULSKI, Maryland        LISA MURKOWSKI, Alaska
HILLARY RODHAM CLINTON, New York     PAT ROBERTS, Kansas
BARACK OBAMA, Illinois               WAYNE ALLARD, Colorado
SHERROD BROWN, Ohio                  TOM COBURN, M.D., Oklahoma
EDWARD M. KENNEDY, Massachusetts     MICHAEL B. ENZI, Wyoming (ex 
(ex officio)                         officio)

                     William Kamela, Staff Director

                  Glee Smith, Minority Staff Director





                                 (III)




















































































                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on December 13, 2007................................     1

Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     3
        Prepared statement of....................................     4
    Kline, Hon. John, Ranking Republican, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     4
        Prepared statement of....................................     6
        Additonal submissions:
            Statement of the Associated Builders and Contractors.     8
            Letter from the U.S. Chamber of Commerce.............    12
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     2
        Prepared statement of....................................     2
    Sanchez, Hon. Linda T., a Representative in Congress from the 
      State of California, prepared statement of.................   122

Statement of Senators:
    Clinton, Hon. Hillary Rodham, a U.S. Senator from the State 
      of New York, prepared statement of.........................   123
    Isakson, Hon. Johnny, a U.S. Senator from the State of 
      Georgia, prepared statement of.............................    25
    Kennedy, Hon. Edward M., Chairman, Committee on Health, 
      Education, Labor, and Pensions.............................    15
    Murray, Hon. Patty, Chairman, Subcommittee on Employment and 
      Workplace Safety, prepared statement of....................    65
        Letter, dated December 12, 2007, from various legal 
          scholars...............................................    66

Statement of Witnesses:
    Battista, Hon. Robert J., Chairman, National Labor Relations 
      Board......................................................    16
        Prepared statement of....................................    18
    Cohen, Charles I., partner, Morgan, Lewis & Bockius LLP......    98
        Prepared statement of....................................    99
    Finkin, Matthew W., Harno-Cleary chair in law, University of 
      Illinois College of Law....................................    88
        Prepared statement of....................................    89
    Hiatt, Jonathan P., general counsel, American Federation of 
      Labor and Congress of Industrial Organizations (AFL-CIO)...   102
        Prepared statement of....................................   103
    Liebman, Hon. Wilma B., Member, National Labor Relations 
      Board......................................................    26
        Prepared statement of....................................    28
        Additional submission....................................    39
    Ryland, Feliza, member, UNITE HERE...........................    95
        Prepared statement of....................................    97


                      THE NATIONAL LABOR RELATIONS
                      BOARD: RECENT DECISIONS AND
                    THEIR IMPACT ON WORKERS' RIGHTS

                              ----------                              


                      Thursday, December 13, 2007

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                              U.S. Senate

              Employment and Workplace Safety Subcommittee

           Committee on Health, Education, Labor and Pensions

                             Washington, DC

                              ----------                              

    The subcommittees met, pursuant to call, at 10:01 a.m., in 
room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the House subcommittee] presiding.
    Representatives present: Andrews, Miller, Kildee, Tierney, 
Wu, Holt, Loebsack, Hare, Clarke, Kline, McKeon, Boustany, 
Davis of Tennessee, Price, Foxx, and Walberg.
    Senators present: Brown, Kennedy, and Isakson.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional; 
Chris Brown, Labor Policy Advisor; Jody Calemine, Labor Policy 
Deputy Director; Carlos Fenwick, Policy Advisor for 
Subcommittee on Health, Employment, Labor and Pensions; Michael 
Gaffin, Staff Assistant, Labor; Brian Kennedy, General Counsel; 
Thomas Kiley, Communications Director; Ann-Frances Lambert, 
Administrative Assistant to Director of Education Policy; Sara 
Lonardo, Staff Assistant; Joe Novotny, Chief Clerk; Megan 
O'Reilly, Labor Policy Advisor; Michele Varnhagen, Labor Policy 
Director; Mark Zuckerman, Staff Director; Robert Borden, 
General Counsel; Cameron Coursen, Assistant Communications 
Director; Ed Gilroy, Director of Workforce Policy; Rob Gregg, 
Legislative Assistant; Richard Hoar, Professional Staff Member; 
Victor Klatt, Staff Director; Alexa Marrero, Communications 
Director; Lindsey Mask, Director of Outreach; Jim Paretti, 
Workforce Policy Counsel; Molly McLaughlin Salmi, Deputy 
Director of Workforce Policy; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Loren Sweatt, Professional 
Staff Member; Partia Wu, Chief of Labor Policy (Senate HELP); 
William Kamela, WES Staff Director; Crystal Bridgeman, 
Professional Staff; Michael Waske, Professional Staff; Kaitlin 
Helms, Intern; and Sharon Block, Labor and Employment Counsel 
(Senate HELP).
    Chairman Andrews [presiding]. Ladies and gentlemen, the 
subcommittee will come to order. We would ask for your 
attention.
    Good morning, ladies and gentlemen. We appreciate your 
participation this morning. I am going to begin by yielding to 
the chairman of the Committee on Education and Labor for an 
opening statement. I will then take any time that remains on 
his 5 minutes, then we will turn to my friend, Mr. Kline.
    Chairman?
    Mr. Miller. I won't use more than 30 seconds. Thank you 
very much, Mr. Chairman, for holding this hearing and to 
Senator Murray for joining us in this joint hearing.
    The rights that we are going to discuss this morning in 
this hearing, the right to join together and collectively 
bargain for a better deal and the fundamental rights at the 
workplace, are absolutely just fundamental human rights. And 
these rights are enshrined in the National Labor Relations Act 
whose purpose is clear: protecting workers' full freedom of 
association and encouraging collective bargaining.
    When those rights are undermined, it makes it harder for 
all Americans to get a fair share of the benefits of their 
productivity. It weakens and shrinks our middle class, and it 
makes our economy more unequal and less stable. And that is 
what is at stake when the National Labor Relations Board makes 
national labor policy. And that is why it is so important that 
this Congress pay close attention to the board's activities.
    The board's recent decision to, among other things, make it 
less costly for employers to unlawfully fire union supporters 
or more difficult for workers to freely organize a union are 
deeply disturbing and an indication that the board has not just 
veered from its mission, but is now driving in the opposite 
direction of the rights that Congress ordered the board to 
enforce.
    And I want to applaud you again for holding this hearing 
and Senator Murray. I know this is a difficult schedule coming 
here at the end of this session of this Congress. But I think 
it is important that we start building this record so that we 
can once again guarantee these basic and fundamental rights. 
Thank you.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Workers' rights have been under near-constant assault in the years 
since the start of the Bush administration.
    We see it in a Supreme Court led by Bush appointees who hand down 
decisions that make it harder for workers to get justice when they are 
the victims of workplace discrimination. We see it in a highly 
politicized Labor Department that acts like an arm of the far right, 
each day looking for new ways to undermine workers' rights and workers' 
organizations.
    And we see it in the anti-worker agenda of the National Labor 
Relations Board. Over the last several years, brick by brick, the NLRB 
has worked to dismantle the foundation of workers' rights in this 
country--the right to organize.
    The rights of workers to join together and bargain collectively for 
a better deal are fundamental human rights. These rights are enshrined 
in the National Labor Relations Act, the purpose of which is clear: to 
protect workers' full freedom of association and encourage collective 
bargaining.
    When those rights are undermined, it makes it harder for all 
Americans to get their fair share of the benefits of their 
productivity. It weakens and shrinks our middle class. It makes our 
economy more unequal and less stable.
    That's what's at stake when the National Labor Relations Board 
makes national labor policy. And that's why it is so important that 
this Congress pay close attention to the Board's activities. The 
Board's recent decisions to, among other things, make it less costly 
for employers to unlawfully fire union supporters or more difficult for 
workers to freely organize a union are deeply disturbing--an indication 
that the Board has not just veered far from its mission but is now 
driving in the opposite direction of the rights that Congress ordered 
the Board to enforce.
    I applaud Chairman Andrews and Chairwoman Murray for holding this 
important hearing today, and I look forward to hearing the testimony.
    Thank you.
                                 ______
                                 
    Chairman Andrews. Thank you, Mr. Chairman. I would like to 
welcome all the witnesses and thank them for their 
participation here this morning.
    You know, there is a difference between controversial 
decisions borne out of legal ambiguity and decisions that I 
think subvert the purpose of public policy that are borne out 
of an ideological agenda. One of the questions before us this 
morning is to whether the recent spate of decisions, 61 of 
them, by the board in September is more fairly characterized as 
controversial decisions flowing from legal ambiguity or 
decisions that subvert the purpose of the National Labor 
Relations Act driven by the ideological agenda. We are going to 
debate that at some length this morning.
    The other concern that I have is about procedure and 
timing. Batches of decisions are not uncommon from the National 
Labor Relations Board. Mr. Cohen's testimony, in particular, 
points that out. I know he is going to talk about that later.
    But I am struck by the differential between the seeming 
urgency to render the September decisions and the lack of 
urgency with the rights of people who have lost their jobs 
under protected activities. In the Earthgrains case, the worker 
was fired in 1998. At every stage of the proceedings, it was 
found that the worker was protected by the law. The worker won, 
and has yet to recover back pay.
    In the Baker Electric decision, it was found that a worker 
was unlawfully terminated, and there was an unlawful 
repudiation of a union agreement, 1993, 14 years ago. The 
worker won, has yet to collect a dime of back pay.
    In the Domsee trading decision, 202 workers were illegally 
terminated in 1989 and 1990, 17 and 18 years ago. They won at 
every stage of the process. It was found that their rights were 
violated. They have yet to collect a penny of back pay.
    I am struck by a concern of the relative urgency to render 
the decisions that we saw in September, many of which, I think, 
can be fairly characterized as pro-employer, not all, and the 
lack of urgency to deal with cases where there has been a 
finding up through the process where workers have been treated 
unlawfully and unfairly and have yet to receive any of the 
remedies the law entitles them to.
    So we are going to have a vigorous discussion. We have an 
excellent panel, two excellent panels of witnesses. We look 
forward to what people have to say this morning. And I know we 
are going to be joined by our colleagues from the Senate. I 
will be recognizing both the chairpeople and ranking members 
upon their arrival.
    At this time, I am going to recognize the ranking member of 
our subcommittee in the House, my friend from Minnesota, Mr. 
Kline.
    [The statement of Mr. Andrews follows:]

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    Good morning and welcome to our joint hearing today entitled ``The 
National Labor Relations Board: Recent Decisions and Their Impact on 
Workers' Rights.'' The Health, Employment, Labor and Pensions (HELP) 
Subcommittee is honored to be joined by the Senate Employment and 
Workplace Safety Subcommittee, chaired by the distinguished Senator 
from Washington, Senator Murray.
    During today's hearing, the committee will focus its attention on 
the 61 decisions the Board issued in September of this year. A majority 
of these decisions are viewed as many as a major shift in labor policy 
and an assault on the American worker and his or her right to 
collectively bargain. Specifically, many of these decisions are seen as 
undermining voluntary card check agreements and workers' remedies such 
as the ability to recover backpay.
    The purpose of the National Relations Labor Act (NLRA) is to 
encourage collective bargaining. I am sure we will hear arguments today 
that argue this is no longer the purpose of the Act--which somehow the 
enactment of Taft-Hartley did away with this purpose. To simply put it, 
this premise is wrong.
    Our purpose today is to examine whether the Board has 1) upheld the 
first principle of the NLRA (that is, encouraging collective 
bargaining) 2) distinguished between routine fact pattern and egregious 
fact pattern and 3) whether they applied the necessary remedial tools 
in those decisions. As Members of this committee and Congress, we have 
the right to alter these decisions if we conclude that these decisions 
are going in the wrong way as a matter of public policy.
    A major contributor to the ``middle class squeeze'' is the decline 
in workers' freedom to organize and collectively bargain. When workers 
get their fair share, the economy benefits and the middle class grows 
stronger. The freedom to organize and collectively bargain has been 
under severe assault in recent decades and it is our role to determine 
whether the Board's recent decisions are contributing to the problem.
    I thank the distinguished panel of witnesses we have before us 
today and look forward to hearing all of their testimony.
                                 ______
                                 
    Mr. Kline. Thank you, Mr. Chairman. And good morning.
    Good morning to the panelists. In the past 11 months, this 
subcommittee under the leadership of Chairman Andrews has had 
the opportunity to engage in numerous examples of good faith 
bipartisan oversight in legislating. Sometimes we have agreed 
on solutions. And sometimes we have not.
    But even when we haven't, no one has doubted our good faith 
commitment to truly and responsibly examine the issues. I am 
afraid this morning we may be moving into the realm of 
political theater and out of genuine oversight.
    I expect we will hear a number of ominous sounding 
accusations this morning. We have had hints already. No doubt 
we will hear about how the National Labor Relations Board under 
Chairman Battista issued 61 cases this last September and how 
this represents some 11th hour, last-ditch effort by the board 
to stack the deck and roll back worker rights and protections 
as the Bush administration enters its final year. Somehow that 
number is given great significance--61 cases decided in a 
single month.
    What we will not hear is that a high number of decisions 
being issued by the board in September, the final month of its 
fiscal year, is not at all uncommon. During the Bush 
administrative, the board has issued as few as 54 decisions in 
September of 2005 and as many as 114 in September of 2004. 
Equally important by way of comparison, from 1994 to 2000, the 
Clinton era board's number of September decisions ranged from a 
low of 53 to a high of 104. With more than 61 decisions handed 
down in all but 1 year.
    So to suggest that 2007 marks some watershed year is to 
ignore history and fact. I expect we will hear claims from the 
majority that this board has sided always with employers and 
uniformly against workers and organized labor. That is simply 
not true.
    Indeed, I can speak firsthand to an issue of great 
importance in my district, the board's decision in San Manuel 
Indian Bingo and Casino, which expanded the rights of unions to 
organize workers on sovereign Indian lands. As a sponsor of 
legislation to overturn this decision, which I strongly believe 
unfairly impinges on tribal sovereignty and tribal employers to 
the benefit of big labor, I can tell you without a doubt that 
this board has been far from a rubber stamp for management. But 
I expect that is what we will hear today.
    Sadly, this conflict between rhetoric and reality is not 
surprising to anyone who has observed our committee as it 
delves into these issues, particularly where organized labor 
holds sway. We heard it in 2004 when the Bush administrative 
undertook the most comprehensive overhaul of our nation's 
overtime regulations in 50 years. We heard from organized labor 
and their think tanks that 8 million workers would lose 
overtime protections overnight and be left out in the cold. 
That just didn't happen.
    We heard it with respect to decisions on who is and who is 
not considered a supervisor under the NLRA. We heard that the 
board's decision in the Kentucky River cases would reclassify 
1.4 million employees as supervisors and strip 8 million more 
workers of the right to unionize. It didn't happen.
    And I expect that we will hear more than once today that 
this decision or that one issued by the board will strip 
millions of workers of protection or deprive workers of the 
right to join a union, a right most of them, frankly, are glad 
to forfeit these days. But if history is any guide, there will 
be just one problem. It won't happen.
    The question that I believe needs to be answered is this. 
Why are we here today? Make no mistake, I fully endorse the 
proposition that this committee and the subcommittees not only 
have the right, but the obligation to engage in vigorous 
oversight of the laws within our jurisdiction and the agencies 
and departments which administer them. I am deeply concerned, 
however, when this committee uses its hearing power cloaked in 
the garb of oversight to bring before us sitting adjudicators 
for the purpose of questioning or even attacking decisions with 
which the majority disagrees.
    This hints at the types of abuse of power that this board 
is meant to prevent, not be subject to. I expect that almost 
every case we discuss today, certainly any issued by the board 
only weeks ago, is still an active, pending matter being 
adjudicated in the court system.
    The decisions of the board are reviewable and enforceable 
by the Federal Circuit Courts of Appeals and ultimately the 
U.S. Supreme Court itself. I expect many of the cases we will 
discuss this morning will be back before the board in some form 
or fashion.
    In short, Mr. Chairman, I am concerned about the process 
here today and the fact that we are bringing adjudicators 
before us to discuss cases that might still be before them. I 
want to make one point very clear. In our discussions today, 
whatever opinions come from the members of Congress up here, 
that does not constitute a sense of Congress on any matter that 
may be appearing before the board.
    With that, Mr. Chairman, I yield back.
    [The statement of Mr. Kline follows:]

Prepared Statement of Hon. John Kline, Ranking Republican, Subcommittee 
               on Health, Employment, Labor and Pensions

    Good morning, Mr. Chairman.
    In the past eleven months, this Subcommittee, under your 
leadership, has had the opportunity to engage in numerous examples of 
good faith, bipartisan oversight and legislating. Sometimes we have 
agreed on solutions, and other times we have not. But even when we 
haven't, no one has doubted our good faith commitment to truly and 
responsibly examine the issues.
    Sadly, it is clear this morning that today's hearing is not one of 
those exercises. Indeed, today's hearing is little more than hollow, 
political theater.
    I expect we'll hear a number of ominous sounding accusations this 
morning. No doubt we will hear about how the National Labor Relations 
Board under Chairman Battista issued SIXTY-ONE cases this last 
September, and how this represents some eleventh-hour, last ditch 
effort by the Board to ``stack the deck'' and roll back worker rights 
and protections as the Bush Administration enters its final year. 
Somehow that number is given great significance--SIXTY-ONE cases 
decided in a single month.
    What we will NOT hear is that a high number of decisions being 
issued by the Board in September--the final month of its fiscal year--
is not at all uncommon. During the Bush Administration, the Board has 
issued as few as 54 decisions in September of 2005, and as many as 114 
in September of 2004. Equally important, by way of comparison, from 
1994 to 2000, the Clinton-Era Board's number of September decisions 
ranged from a low of 53 to a high of 104, with more than 61 decisions 
handed down in all but one year. To suggest that 2007 marks some 
watershed year is to ignore history and fact.
    I expect that we'll hear claims from the Majority that this Board 
has sided always with employers and uniformly against workers and 
organized labor. The accusation contradicts the facts. Indeed, I can 
speak first hand to an issue of great importance in my district--the 
Board's decision in San Manuel Indian Bingo and Casino--which expanded 
the rights of unions to organize workers on sovereign Indian lands. As 
the sponsor of legislation to overturn this decision--which I strongly 
believe unfairly impinges on tribal sovereignty and tribal employers to 
the benefit of organized labor--I can tell you without a doubt that 
this Board has been far from a rubber stamp for management. But I 
expect that is what we will hear today.
    Sadly, this conflict between rhetoric and reality is not surprising 
to anyone who has observed our Committee as it delves into these 
issues, particularly where organized labor holds sway.
    We heard it in 2004, when the Bush Administration undertook the 
most comprehensive overhaul of our nation's overtime regulations in 
fifty years. We heard from organized labor and their think tanks that 8 
million workers would lose overtime protections overnight and be left 
out in the cold.
    There's just one problem: it didn't happen.
    We heard it with respect to decisions on who is and who is not 
considered a supervisor under the NLRA. We heard that the Board's 
decision in the Kentucky River cases would reclassify 1.4 million 
employees as supervisors and strip 8 million more workers of the right 
to unionize.
    There's just one problem: it didn't happen.
    And I expect that we will hear more than once today that this 
decision or that one issued by the Board will strip millions of workers 
of protection, or deprive workers of the right to join a union--a right 
most of them are glad to forfeit these days.
    But if history is any guide, there will be just one problem: it 
won't happen.
    A question that I believe needs to be answered is this: why are we 
here today? Make no mistake: I fully endorse the proposition that this 
Committee and its subcommittees has not only the right but the 
obligation to engage in vigorous oversight of the laws within our 
jurisdiction, and the agencies and departments which administer them. I 
am deeply concerned, however, when this Committee uses its hearing 
power, cloaked in the garb of ``oversight,'' to bring before us sitting 
adjudicators for the purpose of questioning or even attacking decisions 
with which the Majority disagrees. This hints at the types of abuse of 
power this Board is meant to prevent, not be subject to.
    I expect that almost every case we discuss today--certainly any 
issued by the Board only weeks ago--is still an active, pending matter 
being adjudicated in the court system. The decisions of the Board are 
reviewable and enforceable by the federal circuit courts of appeals, 
and ultimately, the U.S. Supreme Court itself. I expect many of the 
cases we'll discuss this morning will be back before the Board in some 
form or fashion.
    In that light, it is plain to me that today's hearing runs the real 
risk of appearing to suggest how the Board should adjudicate those 
cases in the future. It is a well-established tenet of federal law and 
jurisprudence that federal courts do not render ``advisory opinions'' 
nor do they opine on facts not before them.
    I would urge both Republican and Democrat witnesses from the Board 
to be mindful of that fact this morning, and expect that my colleagues 
will not ask, nor will witnesses offer, conclusions as to hypothetical 
matters that could come before the Board in the future, or opinions on 
facts and fact patterns that were not presented in the cases before 
them.
    Finally, since I expect we will hear more than our fair share of 
hyperbole and rhetoric today, I want to make clear, on the record, that 
this morning's hearing in no way reflects any formal finding of 
Congress or of this Committee. It is important to be clear that nothing 
said here today, whether by witnesses or by Members, should be 
construed as precedent, or as evidence of the intent of Congress or the 
meaning of any case or statute.
    I would close with an observation made in this Committee ten years 
ago:
    Intentional interference in the judicatory activities of an 
independent agency, if indeed that was the majority's intent, is not 
simply inappropriate, it is an improper abuse of the subcommittee's 
oversight responsibilities.
    Those words ring true today, as we take the unprecedented step of 
compelling sitting Members of the Board to offer testimony on pending 
cases. I could not agree more, and would associate myself with those 
remarks, made ten years ago by another one of our distinguished 
colleagues from New Jersey, a member of the full Committee Mr. Donald 
Payne. His words of caution and condemnation in 1997 are even more 
applicable to the hearing before us this morning.
    With that, I yield back.
                                 ______
                                 
    [Additional submissions from Mr. Kline follow:]
    [Statement from the Associated Builders and Contractors 
follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


                                ------                                

    [Letter from the U.S. Chamber of Commerce follows:]
                                  U.S. Chamger of Commerce,
                                                 December 13, 2007.
    Dear Senators Murray and Isakson and Representatives Andrews and 
Kline: On behalf of the U.S. Chamber of Commerce (Chamber), the world's 
largest business federation representing more than three million 
businesses and organizations of every size, sector, and region, I am 
pleased to submit this statement for today's joint hearing on the 
National Labor Relations Board: Recent Decisions and Their Impact on 
Workers' Rights.
    The Chamber has numerous concerns with the National Labor Relations 
Act (NLRA or Act) and interpretations of the Act by the National Labor 
Relations Board (NLRB or Board) as they impact employees, employers, 
and labor organizations. For example, the way in which labor 
organizations can use ``blocking charges,'' as permitted by the Board, 
is a serious delay tactic that labor unions have used to deny workers 
the ability to exercise their rights to decide whether or not to be 
represented by a labor organization in a federally-supervised private 
ballot election.
    The Chamber would welcome an open discussion about the strengths 
and weaknesses of the NLRA and how it might be improved to achieve, in 
practice, the most appropriate balance of the rights of individual 
employees, employers, and labor unions. Unfortunately, based on history 
and press reports, it is unlikely such a discussion will take place 
today.
    Instead, it appears that this hearing is designed to continue to 
propagate myths and half-truths about organizing in today's workplace, 
the state of U.S. labor law, and its interpretation and enforcement by 
the NLRB. The purpose of this statement is not to offer a complete 
rebuttal to these points, but rather to point out some more egregious 
examples where rhetoric has surpassed reason and to remind the 
Committee about this current Board's record on overturning precedent 
and issuing decisions.
    However, before discussing the NLRB and recent cases, it is 
necessary to stress our objection to the Committee calling sitting 
board members to testify about recent decisions, many of which are 
still under appeal. While NLRB members are clearly not Article III 
judges, they do serve in a quasi-judicial role as offices of an 
independent agency. As such, they should be free of inappropriate 
influence by Congress or the Administration. While it is clearly 
appropriate for Congress and interested parties to agree, disagree, or 
be critical of specific Board decisions, it is inappropriate to call 
sitting Board members to testify about specific cases (as opposed to 
the agency's budget, proposed reorganization, and the like) and the 
committee's actions today set a dangerous precedent. Board members will 
be less likely to responsibly carry out their duties in making 
decisions if they can expect to be summoned before Congress every time 
they issue an unpopular decision. We hope the Committee will reconsider 
this precedent.
Rhetoric Surpasses Reason
    The NLRB, as the federal agency charged with implementing, 
interpreting, and enforcing the NLRA, is certainly open to criticism 
and, indeed, the Chamber has not hesitated to criticize the Board when 
it has disagreed with a decision. Indeed, an open and honest debate 
over the merits of Board decisions is a healthy exercise and should be 
encouraged. However, in recent years, we have seen a disturbing trend 
in the tone of the debate. Instead of disagreement, we have ad hominem 
attacks, instead of criticism, hyperbole, and instead of reasoned 
discussion, vitriolic rhetoric. Compounding this are reports based on 
shoddy research and half-truths that have been relied on by policy-
makers, including members of this committee, in attacking the Board and 
its decision.
    By way of example, consider the debate over the Board's decision 
last year in Oakwood Healthcare, Inc.\1\ This decision involved the 
NLRB's determination of which employees are considered supervisors 
under the NLRA. This issue was before the Board because the Supreme 
Court had, twice, rejected the NLRB's prior attempts to apply the 
NLRA's supervisory exemption to certain health care providers.
    The NLRB's decision was roundly condemned by unions and their 
allies. AFL-CIO President John Sweeney said the decision ``welcomes 
employers to strip millions of workers of the right to have a union by 
reclassifying them as `supervisors' in name only.''\2\ Anna Burger, 
Chair of the Change to Win Coalition, called the decision ``illogical, 
dishonest, and anti-democratic'' and said that the decision ``created a 
blueprint for eliminating the right to organize for most professionals 
and from millions of leadpersons and employees who are currently 
represented.''\3\
    Earlier this year, the House Employer-Employee Relations 
Subcommittee held a hearing on this issue in which Chairman Andrews 
said that the decision ``dramatically expanded the definition of 
supervisor far beyond the limits of the act intended and far beyond the 
limits of common sense. In so doing, it stripped an estimated 8 million 
workers--particularly skilled and professional employees--of the right 
to organize.''\4\
    These statements and many like them rely on a report by Ross 
Eisenbrey and Lawrence Mishel of the Economic Policy Institute entitled 
Supervisors in Name Only: Union Rights of Eight Million Workers at 
Stake in Labor Board Ruling. The report was issued on July 12, 2006, 
more than two months before the NLRB issued the Oakwood decision. The 
EPI report was not and could not be based on the NLRB's decision. 
Instead, it was based upon pure conjecture and fear that they NLRB 
would adopt an ``extreme employer-centric position'' on Oakwood and all 
similar cases pending before the Board.\5\
    In reality, the NLRB did not issue an extreme employer-centric 
position. Instead, of the more than 180 employees at issue in Oakwood, 
the Board found a mere 12 to be supervisors. In addition, in the 15 
months since the Oakwood decision was issued, we are not aware of a 
single Board decision relying on the reasoning in Oakwood that found 
even a single employee to be a supervisor.
    However, in spite of the fact that millions of workers have not 
lost their rights, critics of Oakwood continue to propagate this myth, 
relying on a so-called analysis that came out before the decision was 
known. They have even relied on it to push legislation through changing 
the NLRA. While reasonable people can certainly disagree over the 
precise tests used to determine whether or not an individual qualifies 
as a supervisor, the rhetoric used by labor union officials as well as 
some in Congress clearly is beyond the pale and only serves to demonize 
the NLRA and the Board.
    A more recent example is the characterization of the NLRB's 
decisions issued in September, 2007. Union leaders\6\ have dubbed these 
decisions the ``September Massacre,'' arguing that the majority of 
decisions issued in September stripped workers of their rights to 
organize. The hyperbole invoked by the phrase ``massacre'' aside, the 
assertion simply does not hold. Indeed, of the 61 decisions the Board 
issued in September, 2007, the majority were unanimous and were not the 
least bit controversial. In fact, Democratic NLRB Members Liebman and 
Walsh only offered a dissenting opinion in about one-third of the 
cases. Also of note is that in a majority of decisions, the NLRB ruled 
against the employer in question. Looking at the Board's September 
decisions as a whole, they can hardly be characterized as a ``kangaroo 
court''\7\ or as the ``Chamber of Commerce Board''\8\ as some have 
alleged.
    Considering the specific cases decided in September, perhaps the 
most controversial case was the Board's decision in Dana Corp. and 
Metaldyne Corp,\9\ where the Board held that when an employer and union 
attempt to evade the NLRA's provisions to let workers decide whether or 
not to be represented by a union by secret ballot, the workers have a 
right to be told about the pending recognition and an opportunity to 
request a private-ballot election. This is arguably the single most 
pro-worker decision the Board issued all month, as it provides a 
mechanism to let employees intervene when unions and employers conspire 
to deprive them of an opportunity to make this important decision in 
private and free from coercion. Nevertheless, the Board's decision has 
been cast as shameful by organized labor.\10\
    In another of the more controversial decisions, Anheuser-Bush, 
Inc.,\11\ the Board refused to grant reinstatement to a group of 
employees who were discharged after their illegal conduct was 
discovered by the employer's use of surveillance cameras. While the 
Board made clear that the employer should have bargained with the union 
over the use of cameras, that was not at issue in the case. The sole 
issue was whether or not the employees, who were discovered to be 
sleeping on the job, urinating on the employer's roof, and using 
illegal drugs, were entitled to get their jobs back. Most Americans 
would probably agree with the Board's decision--that such conduct does 
not warrant a federally-protected right of reinstatement.
    Certainly, some of the Board's decisions issued in September, such 
as Dana / Metaldyne, are significant and worthy of debate. However, 
many other of the so-called controversial cases produced common sense 
results.\12\ Whatever one thinks of Dana/Metaldyne or any of the other 
60 cases issued by the Board in September, these decisions cannot 
justify closing the Board down as many in the labor movement have 
suggested.\13\ Indeed, such a ploy would stop the Board from issuing 
the many routine decisions that are critical to ensuring workers, 
union, and employer rights are respected, not to mention the fact that 
it would dramatically increase the backload of cases.
Current NLRB's Record
    The Bush-NLRB has a surprising record when it comes to overturning 
precedent--in fact, it has overturned precedent far fewer times than 
its predecessor Clinton-NLRB and the decisions the Bush Board have 
overturned were of newer, less well-established, cases. For a 
comprehensive analysis of these cases, the Committee should review the 
paper prepared by G. Roger King for an American Bar Association meeting 
last year.\14\
    King notes in his paper that the Clinton Board issued 3,458 
reported decisions and of those, 60 overturned precedent. In these 60 
decisions 1,181 years of precedent was lost.\15\ When subtracting out 
decisions that were unanimous or in which the majority dissented, the 
number is reduced to 444 years of precedent lost.\16\
    The Bush Board, by contrast, has issued 1,037 reported decisions in 
which 9 reversed precedent. In these 9 cases, 146 years of precedent 
was lost. When subtracting out unanimous decisions or those in which 
the majority dissented, the number is reduced to 64 years of precedent 
lost.\17\
    King also examines the rate at which courts of appeals overturn the 
NLRB to give some indication as to whether its decisions are consistent 
with the NLRA. By his assessment the Clinton Board was upheld in full, 
depending on the year, between 60 and 70 percent of the time. By 
contrast, the Bush Board has been upheld in full between 74 and 78 
percent of the time. When considering cases upheld in full or in part, 
the Clinton Board rate was between 72 and 85 percent, while the Bush 
Board was between 79 and 96 percent.\18\
    While King's data is from last year, it is certainly illustrative 
of the fact that the current NLRB has not perpetrated a long drive 
against worker rights. To the contrary, in a purely statistical sense, 
its record is on par with and, in some cases, better than the prior 
Board's.
    In short, the Chamber hopes that the committee will push aside the 
shrill rhetoric surrounding the NLRB's recent decisions and instead 
look at the Board's decisions in a measured and reasoned way. Having an 
oversight debate based on fictitious analyses and half-truths will do 
little to ensure that the NLRA is appropriately enforced.
            Sincerely yours,
                                         Randel K. Johnson,
          Vice President, Labor, Immigration and Employee Benefits.
                                endnotes
    \1\ 348 N.L.R.B. No. 37 (2006).
    \2\ Michelle Amber and Michael R. Triplett, Long-Awaited Ruling on 
Supervisors Prompts Flood of Reaction from Unions, Management, DAILY 
LABOR REPORT (BNA), Oct. 4, 2006.
    \3\ Id.
    \4\ Prepared statement of Rep. Robert Andrews, Are NLRB and Court 
Rulings Misclassifying Skilled and Professional Employees as 
Supervisors, May 8, 2007, retrieved online at http://edlabor.house.gov/
statements/050807RAHearingStatement.pdf.
    \5\ EPI Report at 2.
    \6\ Thousands of Workers Rally to Condemn the Bush Labor Board's 
Massive Assault on Workers, Change to Win Press Release, Nov. 15, 2007 
(quoting Greg Tarpinian, Executive Director of Change to Win).
    \7\ Activists Protest Anti-Labor Labor Board, IBEW Press Release, 
Nov. 15, 2007 (quoting AFL-CIO Voice@Work Director Fred Azcarate). 
Retrieved from http://www.ibew.org/articles/07daily/0711/071115--
ActivistsProtest.htm.
    \8\ Id. (quoting United Mine Workers President Cecil Roberts).
    \9\ 351 N.L.R.B. No. 28 (2007)
    \10\ See Statement by AFL-CIO President John Sweeney on Latest NLRB 
Decision to Undermine Workers, Oct. 3, 2007.
    \11\ 351 N.L.R.B. No. 40 (2007).
    \12\ Anheuser-Bush, for example.
    \13\ See Michelle Amber, Labor Unions Protest NLRB Decisions Demand 
Agency `Close for Renovations', DAILY LABOR REPORT (BNA), Nov. 16, 2007 
(quoting Fred Azcarate, director of the AFL-CIO's Voice@Work campaign).
    \14\ G. Roger King, We're Off to See the Wizards: A Panel 
Discussion on the Bush Board's Decisions * * * and the Yellow Brick 
Road Back to the Clinton Board (2006).
    \15\ Id. at 2-3.
    \16\ Id.
    \17\ Id. at 5-6. Our understanding is that when this data is 
updated to the present time, the bush Board has issued 21 decisions 
overturning precedent for 343 years of precedent lost.
    \18\ Id. at 4, 6.
                                 ______
                                 
    Chairman Andrews. I thank my friend. I do want to note for 
the record that subpoenas were not issued for this hearing 
today. The members of the board who are here are here 
voluntarily. So any suggestion they are being coerced to be 
here is just not accurate.
    I would be honored at this time to recognize the chairman 
of the Senate Committee on Health, Education, Labor, and 
Pensions, aptly named HELP, the senator from Massachusetts, 
Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman. And I 
want to express our appreciation to you, Chairman Andrews and 
to Senator Murray, all of the members of the House Committee, 
and our colleagues here in the Senate for having this 
particular meeting. It is enormously important that the 
legislative branch understands how the National Labor Relations 
Board is functioning and working and whether it is complying 
with the law itself.
    And it is entirely appropriate that we look at the 
experience and decisions of the board itself in trying to 
understand it better. We have the recognition that over the 
recent years the fact that union membership has declined and 
with that, the safety net which has been basic and supportive 
to millions of America's workers, has been frayed and been 
fractured, that the income for working families has lost its 
purchasing power and in many instances, deteriorated.
    And it is important that we understand exactly what role 
the National Labor Relations Board has taken. And we will get 
to some of the notorious cases, the Dana Corporation case and 
the Wurtland case, that hopefully we will have some opportunity 
to understand their reasoning.
    But it is clear that in the 5 years that this board has 
been in power, we have seen an unprecedented rollback in the 
protection for workers' rights. This board has undermined 
collective bargaining at every turn, putting the power of the 
law on the side of lawbreakers, not victims, on the side of a 
minority of workers who want to get rid of a union, not the 
majority who want one and on the side of employers who refuse 
to hire union supporters, not the hard-working union members 
who want to exercise their democratic rights.
    So I thank the chair for having this hearing. It is a 
matter of enormous importance. And if I was entitled to a few 
minutes, if I could take the last 45 seconds and yield that to 
my friend and colleague, a former member of yours and someone 
who has been a leader on our committee in terms of workers' 
rights, Mr. Brown.
    Chairman Andrews. We would be happy to welcome our friend 
home.
    Senator Brown. Thank you. Thank you, Chairman Andrews.
    And thank you, Senator Kennedy. The issues that Senator 
Kennedy talked about are exactly right. We know that the 
decline in the middle class in this country is in large part 
reflective of, and a cause of, and a result of the decline of 
unionism. We know that in survey after survey large numbers of 
people, the majority of workers in most surveys would like to 
join a union if they had had an opportunity to. We know the 
kind of sophisticated operations that companies employ. And 
unfortunately, they have too often had an ally at the NLRB.
    As Senator Kennedy pointed out, the Dana case and the 
Wurtland case decisions came down the same day. The Dana case 
says that collecting employee signatures in support of a union 
is an inferior process to the election process. Meanwhile in 
the Wurtland decision issued the same day, the board said 
workers' signatures were objective proof that workers no longer 
wanted the union. Which is it?
    And we saw those arguments during the debate about the 
Employee Free Choice Act. We know that a majority of Americans 
supported the Employee Free Choice Act, and we know that a 
majority of Americans would like the opportunity to join a 
union. And we would like to see an NLRB that reflected that 
majority sentiment, but more than that, an NLRB that simply 
believed in fair play.
    I thank Chairman Andrews and Chairman Kennedy.
    Chairman Andrews. Thank you. I note that neither Senator 
Isakson nor Senator Enzi is here. So what we are going to do is 
proceed with the witnesses. Upon either of their arrivals we 
will interrupt and give them the opening statement, if that is 
acceptable with everyone.
    I wanted to welcome our first two witnesses. Robert 
Battista has been chairman of the National Labor Relations 
Board since 2002. Before becoming chair of the board, he was a 
management labor lawyer in Detroit. He is a former chair of the 
Labor and Employment Law Section of the Michigan Bar 
Association and a former member of the advisory committee to 
the Michigan Employment Relations Commission.
    Chairman Battista graduated from the University of Notre 
Dame in 1961 with his B.A. and the University of Michigan Law 
School in 1964.
    Welcome, Mr. Chairman.
    And Wilma Liebman is a member of the NLRB who was appointed 
by President Clinton. Prior to joining the board, she served as 
deputy director of the Federal Mediation and Conciliation 
Service. And before that, Ms. Liebman served as special 
assistant to the director of that agency. A Philadelphia 
native, Ms. Liebman has a B.A. from Barnard College and a J.D. 
from the George Washington University Law Center.
    Welcome, Member Liebman.
    Mr. Chairman, we would ask that you make your statement. 
Our general practice is that we accept for the record the 
written statements of the witnesses. We ask people to summarize 
in 5 minutes their written statement. Frankly, given the 
service each of you has rendered, we will be quite liberal in 
interpreting that rule this morning.
    That does not go for the lay witnesses, I must say, but it 
does for our members.
    A yellow light will appear when you are 1 minute away from 
time. The red light means time. But again, please, take the 
time you think you need to explicate your position.
    Good morning, Mr. Chairman.

  STATEMENT OF HON. ROBERT BATTISTA, CHAIRMAN, NATIONAL LABOR 
                        RELATIONS BOARD

    Mr. Battista. Good morning, Mr. Chairman.
    Chairwoman Murray, Ranking Member Isakson, Chairman 
Andrews, and Ranking Member Kline, and members of the 
subcommittees, thank you for this opportunity to discuss recent 
decisions of the National Labor Relations Board and their 
impact on employee rights. I have three points I would like to 
make in my oral statement.
    First of all, the September rush, as it is called, was 
certainly not political. I want to set the record straight 
regarding the number and timing of the decisions the board 
issued in September of 2007. Our critics allege that the Bush 
majority rushed out 61 decisions in September, which they 
describe as a massive assault on workers before the president's 
term ends. That is just not so.
    Anyone with a basic knowledge of a board case processing 
knows that September, the last month of the fiscal year, is the 
busiest case production time. The board actually issued 70 
decisions in September after a bipartisan effort of all five 
members to issue the oldest cases we had on the books.
    The equivalent number for September issuances in the prior 
4 years are 119, 54, 114, and 105. So our 70 in September is 
the second lowest for the 5 years.
    As for the substance of what the board held, the decisions 
speak for themselves. It should be noted, however, that of the 
majority of unfair labor practice decisions issued in 
September, the board found one or more violations of the act by 
the employer involved.
    The second point I would like to make is that the NLRB is 
performing its statutory mission. Notwithstanding the special 
interest group rhetoric you might be hearing about the NLRB, I 
want to assure Congress that the agency is successfully 
carrying out its statutory mission to administer the National 
Labor Relations Act as it has been written by Congress and 
interpreted by the reviewing courts.
    Consider these facts. During my 5-year tenure as chairman, 
the NLRB recovered a total of $604 million in back pay with 
13,279 employees offered reinstatement. In fiscal 2007, the 
NLRB held 1,559 representation elections in under 2 months. The 
unions won over half of them.
    Over the same period, two-thirds of the 22,000 unfair labor 
practice charges that the NLRB received were investigated and 
resolved within 4 months. Of charges found to have merit, some 
90 percent are settled prior to the issuance of a complaint.
    In fiscal 2007, the median time to issue complaints was 98 
days. Complaints that the regional directors do issue in 
meritorious cases go to hearings before NLRB administrative law 
judges. Their decisions could be appealed to the board in 
Washington.
    The board's decisions are subject to review and enforcement 
in the U.S. Court of Appeals. In fiscal year 2007, our 
decisions were enforced in whole 86.6 percent of the time and 
in whole or in part, 97 percent of the time, the highest 
enforcement rates in the agency's history.
    Since 1990, the cases pending before the board in 
Washington have represented only one or 2 percent of the cases 
filed with the agency nationwide. By focusing only on this 
small percentage of board decisions, some critics give the 
impression that the delay inherent in a fully litigated case is 
the norm. That is not true. Overall, the NLRB's case processing 
record is a very impressive one.
    As for the board's productivity, since I became chairman, 
we issued almost 500 cases a year through the end of fiscal 
year 2007. The median number of days an unfair labor case was 
pending at the board as of the end of fiscal year 2007 was 181 
days. For representation cases, the median was 88 days.
    We have reduced our backlog to 207 cases from 621 when we 
first came to the board, or a reduction of some 66.5 percent in 
5 years. We are at the lowest case inventory in over 30 years. 
Granted, a lower intake of cases helped us in this effort, but 
overall, we did well in bringing the caseload down to a 
respectable working inventory.
    Third, our critics lose sight of the fact that the statute 
was amended in 1947 by the Taft-Hartley Act to protect 
employees from not only employer interference, but also union 
misconduct and to give employees the equal right to refrain 
from union activities and representation. The board is 
obligated to enforce the law as enacted by Congress despite 
what any affected party may wish for.
    The statute was not intended to benefit unions or 
employers. Rather, the rights granted by the statute belong 
only to employees whether unionized or not.
    Once again, the fundamental principle of the act is to 
provide for employee free choice, allowing employees to decide 
for themselves whether they wish to be represented by a union 
or to otherwise act concertedly in dealing with their employer. 
The law is neutral, and so is this agency. Thank you for your 
attention.
    [The statement of Mr. Battista follows:]

Prepared Statement of Hon. Robert J. Battista, Chairman, National Labor 
                            Relations Board

    Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and 
Ranking Member Kline, and Members of the Subcommittees: my name is 
Robert Battista, and I am Chairman of the National Labor Relations 
Board. The NLRB is an independent federal agency created by Congress in 
1935 to administer the National Labor Relations Act, as amended, the 
primary law governing relations between unions and employers in the 
private sector. The statute guarantees the right of employees to 
organize and to bargain collectively with their employers, and to 
engage in other protected concerted activity with or without a union, 
or to refrain from all such activity. Under the Act, the NLRB has two 
principal functions:
     to conduct secret-ballot elections among employees to 
determine whether or not the employees wish to be represented by a 
union; and
     to prevent and remedy statutorily defined unfair labor 
practices by employers and unions.
    Thank you for the opportunity to discuss recent decisions of the 
National Labor Relations Board and their impact on employee rights. I 
understand you are most interested in the decisions we issued in 
September 2007. Before addressing specific decisions, I would like to 
cite some of this Board's accomplishments and to offer some 
observations about the Agency and the National Labor Relations Act.
    Notwithstanding the special interest group rhetoric you may be 
hearing about the NLRB, I want to assure Congress that the Agency is 
successfully carrying out its statutory mission to administer the Act 
as its has been written by Congress and interpreted by the reviewing 
courts.
Agency Performance
    In three days, I will have completed my five-year term as Chairman. 
I thought it would be appropriate to look back upon my term to see how 
the Board fared against the goals we established for the Agency when we 
first took office. In December of 2002, our goals as a Board were to 
become more productive, credible with the Court's, collegial, and 
transparent. As I will explain, we have substantially accomplished 
those goals.
            1. Productivity
    We certainly have become more productive. In fiscal year 2002, the 
last fiscal year before I became Chairman, the Board issued a total of 
443 cases. Since I became Chairman in December 2002, the Board has 
issued almost 500 cases a year through the end of FY 2007 on September 
30, 2007.
            GPRA Case Initiative
    In fiscal 2007, all Board Members made a determined effort to meet 
our goals pursuant to the Government Performance Results Act, which we 
refer to by the acronym ``GPRA.'' Our internal GPRA goal for unfair 
labor practice (``C'') cases was to issue by September 30, 2007, 
decisions in 90% of the 216 C cases pending as of May 1, 2006. Our 
internal GPRA goal for representation cases was to issue by September 
30, 2007, decisions in 90% of the 59 representation (``R'') cases 
pending as of October 1, 2006.
    We were successful in issuing decisions in many of our oldest GPRA 
cases. Indeed, in fiscal 2007 we issued decisions in 48 of our oldest 
50 cases. With regard to R cases, we issued rulings in 98.3% of all the 
R cases we had on October 1, 2006 thus exceeding our GPRA goal. We 
issued decisions in 84.1% of our GPRA C cases we had on hand on May 1, 
2006. Thus, while we did not quite meet our internal GPRA C case goal, 
we were able to issue decisions in the great bulk of the old cases, 
many of which had lengthy records and difficult issues that seemed to 
have been handed down from one Board to another. Another way to look at 
the success of our efforts is to compare median case pendency periods. 
At the end of fiscal 2006, the median number of days that a C case was 
pending with the Board was 809 days. After our GPRA effort in Fiscal 
2007, the median number of days a C case remained at the Board was 181 
days.
    We achieved a similarly dramatic reduction in median time for R 
cases. At the end of fiscal 2006, the median number of days an R case 
was at the Board was 409 days. After our GPRA effort in fiscal 2007, 
the median number of days for our R case inventory was 88.
    While we still have some old C cases that we intend to decide 
before the end of the year, the claim that cases are languishing at the 
Board is no longer true.
            Case Backlog at Lowest Level in Over 30 Years
    Furthermore, we have made real inroads on the backlog. Five years 
ago the case backlog at the Agency stood at 621 contested cases. Many 
of them had been at the Board for a number of years. At the end of FY 
2007, we have reduced that backlog to 207 cases or a reduction of some 
66.5%. Granted, a lower intake of cases helped us in this effort, but 
we did well in bringing the caseload down to a respectable working 
inventory.
            Board Issues Lead Case Decisions
    During the same period, the Board has issued 28 major decisions. We 
had hoped to issue more. However, to decide a major issue, the Board 
must have at least a three-member majority who are willing to sign on 
to the opinion. That task was made doubly difficult because during my 
chairmanship, the Board had fewer than 5 members for 18 months or 30% 
of the time, including all of calendar year 2005. Of course, when a new 
member comes on to the Board, it takes a while for the new member to 
come up to speed, acclimate himself or herself with staff, and for the 
Board to develop the necessary chemistry to reach consensus or even a 
majority.
            Representation Case Activity
    With regard to representation case activity at our Regional Offices 
during FY 2007, 2,439 (RC and RM) petitions were filed, which resulted 
in holding 1,559 elections.
     Unions won 54.3% of those elections;
     The time from the filing of a petition to the holding of 
an election was 39 median days;
     93% of the elections were held within 56 days;
     78.9% of all R cases were closed by the Agency within 100 
days from the filing of the petition.
     Only 13 cases involved a technical refusal to bargain to 
test the certification, which means employers challenged the 
certification of unions in court in only 1.1% of the elections that 
unions won.
            Board Collects Over One-Half Billion Dollars in Backpay
    In FY 2007, the NLRB collected $110,388,806 in backpay, and 2,456 
employees were offered reinstatement. Over my tenure as Chairman, the 
NLRB recovered a total of $604 million on behalf of employees as 
backpay or reimbursement of fees, dues, and fines, with 13,279 
employees offered reinstatement.
    All and all, from a productivity standpoint, we have done a very 
credible job, of which I am proud. In the words of one longtime 
observer of this Agency, ``the efficiency and productivity of the Board 
continues to serve as a role model for many Federal agencies.'' G. 
Roger King, ``We're Off to See the Wizards'' A Panel Discussion on the 
Bush II Board's Decisions * * * And The Yellow Brick Road Back to the 
Record of the Clinton Board, (paper presented at the American Bar 
Association, Section of Labor and Employment Law, 34th Annual 
Development of the Law Under the National Labor Relations Act Mid-
Winter Committee Meeting on February 26 to March 1, 2006).
            2. Credibility in the Courts
    Building credibility with the U.S. Courts of Appeals was the second 
objective. In fiscal 2002, the prior Board had its decisions enforced 
in the courts in whole 60.4% and in whole or in part 70.8% of the time. 
From December 2002, when I took office, through September 30, 2007, the 
decisions of the Board have been enforced by the Courts in whole 78.1% 
and in whole or in part 87.7% of the time. Indeed, in fiscal 2007, our 
decisions were enforced in whole 86.6% and, in whole or in part, 97% of 
the time. Both of these enforcement rates are the highest in the 
Agency's history.
            3. Collegiality
    Fostering collegiality and bipartisanship was a third goal, and 
despite strongly-worded dissents in some of the more important cases, 
in the main, the whole Board has been fairly collegial. Despite 
differences, which are not always predictable based upon political 
affiliation, we have tried to be guided by tolerance and respect for 
each other's strongly held views.
            4. Transparency
    The last of our goals has been to make the Agency more transparent 
to the public it serves by implementing the President's Management 
Agenda and E-Gov initiatives. We have renovated the Agency's Web site 
by greatly expanding its content, making it interactive, more user-
friendly, and greatly enhancing its E-Filing capacity. We also are 
building an enterprise-wide electronic case management system designed 
to reduce reliance on paper-based processes, improve operational 
efficiency, and better serve the public.
Criticisms and Responses
            Complexity of the Board's Responsibility
    Some critics of the Board emphasize that the Act, as amended, 
retains the language from its original statement of purpose, found in 
the 1935 Wagner Act, calling for the encouragement of collective 
bargaining. These commentators invoke this language to fault the Board 
for not doing enough to promote unionism. In my opinion, this is an 
anachronistic view that ignores the amendments to the 1935 Act and the 
complexity of the Board's responsibility.
    The Board's responsibility is much more complex than the promotion 
of any institution's agenda because of the interplay of two essentially 
legal (as opposed to economic) forces. First, the Wagner Act was not 
Congress' last word. The Taft-Hartley Act of 1947 and the Landrum-
Griffin Act of 1959 amended the original Wagner Act substantively and 
philosophically. Second, the courts have interpreted the Act and its 
amendments in a way that reflects the compromises underlying the 
legislation and leaves no room for the Board to construe and apply the 
amended Act as if it were the property of a single interest group.
            Balancing Competing Interests
    As defined by the sum total of the amendments and the court 
decisions, the Board's mission is to balance and accommodate competing 
interests, which typically conflict with one another. For example, 
although employees have the right to organize and engage in collective 
bargaining, employees also are assured of the right not to engage in 
union or concerted activity. Thus, the narrower goals of the original 
Act were tempered significantly by a broader notion of workplace 
democracy, voluntarism and neutrality, as expressed in the Taft-Hartley 
amendments. As one of our most eminent labor law and constitutional 
scholars, the late Archibald Cox, put it: The Taft-Hartley Act 
``represents a fundamental change in philosophy, which rejects outright 
the policy of encouraging collective bargaining.'' Archibald Cox, Some 
aspects of the Labor Management Relations Act of 1947. 61 Harv. L. Rev. 
1, 24 (1947).
    My own view is that Professor Cox was absolutely right insofar as 
he saw the Taft-Hartley amendments as adopting a posture of complete 
equipoise on the question of whether employees should choose union 
representation. In the words of the Supreme Court, ``The Act is wholly 
neutral when it comes to that basic choice'' (NLRB v. Savair 
Manufacturing). Once employees have freely chosen union representation, 
however, I think that the policy of encouraging the collective 
bargaining process retains its vitality.
    Even in the context of collective bargaining, the statute is 
neutral as to the outcome of negotiations. In this regard, Section 8(d) 
of the Act defines the obligations of the parties to engage in good 
faith bargaining, but specifically notes that ``such obligation does 
not compel either party to agree to a proposal or require the making of 
a concession. * * *''
    Another example of the resolution of conflicts between competing 
interests occurs in the context of economic battles over terms of a 
collective bargaining agreement. Although employees are entitled to 
strike for better working conditions, the right of an employer to 
continue business operations has been recognized since the beginning of 
the Act's history. Thus, employers are allowed to hire replacement 
workers during the strike, who need not be displaced once the strike is 
over.
    This balancing of competing interests also is illustrated in the 
frequently litigated question of whether a union has a right to engage 
in concerted activity--like picketing or handbilling--on the private 
property of an employer. Over 50 years ago the Supreme Court told the 
Board that when the Section 7 rights to engage in concerted activity 
conflict with property rights, the Board must accommodate the two 
``with as little destruction of one as consistent with the maintenance 
of the other.''
            Criticisms are Politically Motivated and Without Foundation
    The polemics of certain groups against recent decisions of the 
Board are nothing more than special-interest attacks designed to gain 
support for their position in the coming election cycle. The hue and 
cry is that the ``Bush majority'' rushed out 61 decisions in September 
in a ``massive assault on workers'' before the President's term ends. 
That is just not so. Anyone with a basic knowledge of Board case 
processing knows that September, the last month of the fiscal year, is 
the busiest case production time. The Board actually issued 70 
decisions in September, after a bi-partisan effort by all five Members 
to issue the oldest cases. The equivalent numbers for September 
issuances in the prior four years are 119, 54, 114, and 105. As for the 
substance of what the Board held, the decisions speak for themselves. 
It should be noted, however, that in the majority of unfair labor 
practice decisions issued in September, the Board found one or more 
violations of the Act by the employer involved.
    Should parties appeal the decisions, one of the 12 circuits of the 
U.S. Courts of Appeals will decide whether to affirm or reverse the 
Board. If a Board decision is balanced and well reasoned, generally it 
gets enforced. As I stated previously, in FY 2007, which ended on 
September 30, 2007, the Board's decisions were enforced by the courts 
at historically-high levels.
    Our critics' prognostications that ``the NLRB system is broken and 
has become a tool of corporate interest,'' are simply false. Unions are 
winning a majority of representation elections, most of which are held 
within two months. The Board has averaged issuing almost 500 decisions 
a year during my tenure. The median number of days an unfair labor 
practice case has been pending at the Board is 181 days; for 
representation cases, the median is 88 days. This is not the record of 
a Board that is the captive of any group or institution.
            Mission Is to Enforce Entire Statute
    Our critics declare that the National Labor Relations Act was 
passed by Congress in 1935 ``to encourage workers to have unions and to 
bargain collectively.'' However, they lose sight of the fact that the 
statute was amended in 1947 by the Taft-Hartley Act to give employees 
the equal right to refrain from union activities and representation, 
and to protect employees from not only employer interference but also 
union misconduct. Often critics fail to comprehend that the Board's 
mission is to enforce the entire law as enacted by Congress despite 
what any affected party may wish for--a return to 1935 or to some 
future legislative result.
            NLRA Protects Employees
    The statute was not intended to benefit unions or employers. 
Rather, the rights granted by the statute belong only to employees--
whether unionized or not. Once again, the fundamental principle of the 
Act is to provide for employee free choice, allowing employees to 
decide for themselves whether or not to be represented by a union or 
otherwise to act concertedly in dealing with their employer.
    If employees exercise their right of free choice in favor of union 
representation, the policy of the Act, and the responsibility of the 
Board, is to encourage collective bargaining by making sure that unions 
as well as employers bargain in good faith, free from governmental 
interference. If employees exercise their right of free choice not to 
be represented, it is the Board's responsibility to respect that choice 
and ensure against union restraint or coercion. The law is neutral * * 
* and so is this Agency.
            Most Cases Resolved Quickly
    Another criticism leveled at the Board focuses on the delay in 
processing cases to final conclusion. The overall case processing 
times, however, reveal the criticism's delay premise to be exaggerated. 
In FY 2007 the NLRB received 25,471 cases, 22,147 of which were unfair 
labor practice cases, and the remaining 3,324 were representation 
cases. After the General Counsel investigates the unfair labor practice 
cases, typically about one third of the cases are determined to have 
merit. In FY 2007, 36.6% of the cases were found to have merit. These 
investigations usually are completed in about two months.
            Only 1-2% of Cases are Appealed to Board
    Of the cases found to be meritorious, some 90% are settled prior to 
the issuance of a complaint. Complaints that Regional Directors do 
issue in meritorious cases are considered by NLRB Administrative Law 
Judges, and judges' decisions can be appealed to the Board here in 
Washington, D.C. In FY 2007, the median time to issue complaints was 98 
days. Since 1990, the cases pending before the Board in Washington have 
represented only 1% to 2% of cases filed with the Agency nationwide. 
These cases tend to present the most difficult and complex issues in 
labor law. By focusing only on this small percentage of cases, some 
critics give the impression that delay inherent in a fully-litigated 
case is the norm. This is not true. Although, admittedly, some of these 
fully litigated cases take too long to resolve, such delays are not 
typical. Overall the NLRB's case processing record is impressive.
    The vast majority of these cases are resolved without the necessity 
of litigation. Historically, the Board's settlement rate has been very 
high; in FY 2007, 97% of all unfair labor practice cases filed in the 
field offices were settled.
            Board Decisions Speak for Themselves
    The decisions this Board has issued are correctly decided, soundly 
reasoned, and speak for themselves. In many instances, the decisions 
are unanimous. True, some of the more important decisions have not 
been, but dissent is healthy for many reasons, including the assurance 
dissent provides that the members in the majority have considered 
carefully opposing views and arguments.
            Evolution of Labor Policy under the Act
    The genius of the Act is that it sets forth enduring fundamental 
principles, and yet allows for flexibility and change. It accomplishes 
the former by setting forth fundamental principles in clear and 
compelling language. It accomplishes the latter by using broad language 
that gives the administering agency, the Board, the freedom and 
responsibility to make policy judgments within the parameters of those 
principles.
    More specifically, the enduring fundamental principles include: the 
employee freedom to choose to be represented or not; the guarantee of 
good-faith bargaining free from governmental interference if employees 
choose representation; an electoral mechanism to insure that employees 
are appropriately grouped together, and can vote in secret; the duty to 
sign and honor contracts that are freely agreed to; and the protection 
of employers from labor disputes in which they are not involved.
    Within these principles, there is considerable discretion vested in 
the Board. Congress chose broad language, and then left it to the 
Agency to act in its discretion, so long as it does not depart from the 
principles. A few examples will suffice:
    1. Congress said that an employer shall not ``interfere with'' 
Section 7 rights. Is it ``interference'' to prohibit persons who are 
not employees of the property owner from engaging in union solicitation 
on company property? If the persons are truly outsiders, the Supreme 
Court has told us that the answer almost always is ``no.'' But what 
happens if the persons are employees of a tenant of the property owner 
who come to work on that property every day? This is an issue on which 
the Board held oral argument about a month ago.
    2. Should employees have the right to oust or change a 
representative? The simple answer is ``yes,'' but the Board has the 
power to limit this right in the interest of bargaining stability 
through contract-bar rules, certification year rules, and ``reasonable 
time'' insulated periods. In its recent decision in Dana Corp., 351 
NLRB No. 28 (2007), the Board adjusted the balance between freedom of 
choice and bargaining stability.
    3. Should the duty to bargain include the duty to supply 
information? The simple answer is ``yes,'' but the Board has the 
discretion to determine such matters as relevance and confidentiality. 
The Board historically has distinguished between information that 
pertains to employees within the bargaining unit the union represents 
and information that pertains to employees or entities outside the 
bargaining unit. In the former case, the information is presumptively 
relevant and the union is entitled to the information without any 
further showing. In the later case, the information is not 
presumptively relevant, and the union is not entitled to the 
information unless it can show that it is relevant to the union's 
duties as the collective bargaining representative. The Board currently 
is considering when and to whom the union must demonstrate that such 
requested information is relevant.
            Reversal of Precedent
    With such difficult policy judgments in mind, it is not surprising 
that Board law changes from time to time. The Board's freedom to act 
within parameters means that over time different Boards will act in 
different ways.
    Our Board, indeed, has reversed precedent but not as frequently as 
the Board did during the years 1994 to 2001. Having compiled the 
statistics for a paper delivered at the American Bar Association, 
Section of Labor and Employment Law, 34th Annual Development of the Law 
Under the National Labor Relations Act Mid-Winter Committee Meeting on 
February 26 to March 1, 2006, G. Roger King reported:
    From March 1994 until December 2001 the Clinton Board issued 60 
decisions * * * which reversed Board precedent.
    In these 60 decisions 1,181 years of precedent were overturned, or 
``lost.''
    During this timeframe [December 2002 to February 2006] the Bush II 
Board issued 9 decisions * * * which reversed precedent.
    When all cases decided by the Bush II Board which reversed 
precedent are included 146 years of precedent was ``lost.''
    From February 2006 until present, our Board issued an additional 12 
decisions that overruled precedent, and the number of years of 
precedent ``lost'' was 197. In total, the prior Board issued 60 
decisions that overruled 1181 years of precedent and our Board has 
issued only 21 decisions that overruled 343 years of precedent. The 
bottom line is that our Board reversed precedent only one-third as many 
times as the prior Board. Moreover, in many of these cases we restored 
the precedent that had been overruled by the prior Board.
    This evolution of policy is precisely what Congress intended when 
it gave the Board policy-making function. So long as the Board does not 
stray from the Act's fundamental principles, and so long as the Board 
explains the reasons that impel it to disagree with a prior decision, 
the Board has the power to change. The Act envisions the federal 
judiciary as the arbiter of the Board's statutory faithfulness. Where 
the Board has strayed too far from the Act's fundamental principles or 
has not explained its reasons, the Courts will decline to enforce the 
Board's decisions. As noted earlier, our enforcement record in the 
Courts of Appeals is at a historic high, which is strong proof that our 
decisions have been faithful to the statute.
    Of course, all responsible Members realize the value of stare 
decisis--. the value of having stability, predictability and certainty 
in the law. However, if a Member honestly believes that a prior 
precedent no longer makes sense, and that a change would be more in 
keeping with the fundamental principles described above, he/she can--
and may feel obligated to--vote to change the law. To be sure, the 
values of stare decisis counsel against an onslaught of changes. But 
prudently exercised, change is proper and, indeed, was envisaged by 
Congress.
    Similarly, because of the limited terms of Members, and the 
evolving composition of the Board, it is not surprising that some 
Boards will be viewed as being more liberal and other Boards as being 
more conservative. Although such characterizations grossly oversimplify 
the decisional process and do not account for each Board member's 
personal and usually nuanced policy orientations, the characterizations 
may well describe public perceptions. In view of the structure set up 
by Congress, this should not be seen as startling. But again, prudence 
requires that a given Board not swing radically to the left or right.
    Overall, the Board has not had radical swings to the left or right. 
Most of the law is well-settled, and the parties litigate the facts 
under those principles. In a few areas, the law has gone through 
periods of flux, but ultimately it has settled down. For example, the 
Board flip-flopped for years on whether misrepresentations are 
objectionable conduct in an election context. But, in Midland, 263 NLRB 
127 (1982), the Board ultimately held that such conduct would not 
ordinarily be objectionable. The law has been thus for 23 years. 
Similarly, the Board wrestled for years as to the burdens of proof in 
8(a)(3) cases. Finally, the Board articulated a clear test in Wright 
Line, 251 NLRB 1083 (1980). The law has been thus for 25 years. In 
addition, the Board held for a time that interrogation about Section 7 
activity was per se coercive. After judicial criticism, the Board 
abandoned this approach in Rossmore House 269 NLRB 1176 (1984). The law 
has been thus for over 20 years. Finally, the Board once held the view 
that plant relocations were contract modifications, even if the 
contract contained no clause proscribing relocations. Milwaukee Spring, 
235 NLRB 720 (1978). The Board later abandoned that view, Milwaukee 
Spring, 268 NLRB 601.(1984), and then held that relocations were 
bargainable only in limited circumstances. Dubuque Packing, 303 NLRB 
368 (1991). The law has been thus for over 16 years.
            Protecting Workplace Democracy
    These are examples of Board fluctuations which ultimately resulted 
in stability. I submit that the ultimate stable point was true to the 
Act's fundamental principles. By being true to its principles, and yet 
flexible enough to change, the Board has continued to serve the 
national interest in protecting workplace democracy.
    Throughout the years, the NLRB has been a bastion protecting the 
right of workers to choose union representation or no representation, 
and if they choose union representation, to make sure that the Act's 
twin objectives for the collective bargaining process are carried out--
that the parties bargain in good faith and that they do so free from 
governmental interference. We continue to vigorously uphold workers' 
rights and the Act's bargaining process objectives in a fair and 
balanced manner.
                                 ______
                                 
    Chairman Andrews. Mr. Chairman, thank you.
    Member Liebman, with your consent, what we are going to do 
here is ask Senator Isakson for his opening statement at this 
time, and then we will proceed to your statement, ma'am.
    Welcome home, Johnny, back from the House.
    Senator Isakson. Thank you, Mr. Chairman. And I apologize 
to the gentlelady for being late, but we had a couple of votes 
in the Senate. And I will cut my statement very short.
    Quite frankly, when I heard about this hearing, I wondered 
what it might be about because I didn't know of anything 
pending that would cause a typical congressional hearing to 
take place. And then I read Chairman Miller's press release 
that was issued about it. And I want to read one sentence from 
it that basically is the sentence that troubles me about the 
intent of the hearing.
    It says, ``The Bush's NLRB decisions may be appealed to the 
United States Circuit of Appeals and ultimately to the United 
States Supreme Court, a process which after 60 years has not 
produced sufficient clarity or managed to protect workers.'' So 
basically, I take it, that this is to discuss decisions that 
have been made in the past by the Supreme Court when they 
upheld NLRB rulings or possibly even discuss decisions that are 
pending either before the court or on appeal.
    In either case, the Congress has no business in this branch 
of government calling either the judiciary or for that matter, 
the executive branch before while a case is pending. The NLRB 
was created by Congress in 1935 to be an independent, quasi-
judicial body. Their decisions, like those of judges, speak for 
themselves. There is no reason why the board members should 
have to come to Capitol Hill to explain themselves.
    NLRB's decisions can and are appealed in the Federal 
Circuit Court. And undoubtedly, some of those cases the 
majority wishes to discuss today are in the process of being 
appealed. But I want to point out that when these cases are 
appealed, the courts overwhelmingly stand behind the board. In 
fact, the courts have upheld their decisions in whole or in 
part 97 percent of the time.
    Our founding fathers created a three-legged stool of 
government, the executive, the legislative, and the judicial 
branch. And ultimately the decisions the executive branch makes 
in interpreting the laws that the legislative branch passes, if 
there is a question, go to a court system, which is the 
ultimate appeal, not a committee of the United States Congress.
    And I yield back the balance of my time.
    [The statement of Senator Isakson follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
                                ------                                

    Chairman Andrews. I thank the senator.
    And I welcome Member Liebman. And we will hear her 
testimony.

    STATEMENT OF HON. WILMA LIEBMAN, MEMBER, NATIONAL LABOR 
                        RELATIONS BOARD

    Ms. Liebman. Thank you. Good morning, Chairwoman Murray, 
Ranking Member Isakson, Chairman Andrews, and Ranking Member 
Kline, and members of the subcommittee, thank you for inviting 
me to testify about the recent decisions of the National Labor 
Relations Board. And thank you for holding this hearing.
    For too long labor law and policy issues have been removed 
from public discussion. The controversy over the board's recent 
decisions has had the positive effect of focusing public 
attention on these issues. They matter to working people, to 
businesses, and to our economy and society as a whole.
    I have dissented from many of the board's decisions. Those 
issued in September are the climax of a trend that is now 
several years old. The impact on workers' rights has been 
uniformly negative.
    Today fewer workers have fewer rights and weaker remedies 
under federal labor law. Virtually every recent policy choice 
made by the board impedes collective bargaining, creates 
obstacles to union representation, or favors employer 
interests. The result is a loss of faith in the board and 
growing disenchantment with the law.
    Some might say that the current board's decisions simply 
reflect the typical change of orientation that occurs with 
every new administration. But something different is going on 
now. More see change than seesaw, not just tilting the seesaw, 
but tearing up the playground.
    It was not surprising, perhaps, when the current board 
reflectively overruled a series of decisions by the prior 
Clinton board. But it has also reached back decades in some 
cases to reverse longstanding precedent going to the core 
values of this statute.
    The loss of confidence in the board is reflected in our 
dramatically declining case intake. Increasingly disillusioned, 
unions have turned away from the board, especially its election 
machinery.
    It is a troubling signal when protesters converge on the 
board and demand that it be closed for renovations. To dismiss 
this discontent as merely politics is a mistake, if not 
irresponsible.
    Time does not permit me to discuss these decisions in any 
detail. I have tried to do that in my written statement. Nearly 
all of the significant decisions include dissents, which 
hopefully speak for themselves.
    In September, the board issued divided decisions that, 
among other things, created obstacles for employers and unions 
who want to establish relationships by means of voluntary 
recognition, a case I might add that cannot be appealed under 
our statutory scheme to the courts of appeals. The September 
decisions also made it easier for employers to withdraw 
recognition from a union without an election, legalized hiring 
discrimination against some who seek to organize a workforce, 
made it harder for those who have been unlawfully fired to 
collect remedial back pay, and allowed employers to file 
retaliatory lawsuits against unions and employees without fear 
of being held liable.
    None of these decisions should have surprised a careful 
observer of the current board. In my written statement and in a 
new article in the Berkeley Journal of Employment and Labor Law 
I have surveyed the work of the current board, its rulings, and 
its decision-making process. For people who are committed to 
the goals of the National Labor Relations Act, it is a 
troubling story.
    The board has said for the first time that freedom of 
choice, which is to say the freedom to reject union 
representation, prevails in the statutory scheme over promoting 
collective bargaining. It has taken special care to ensure that 
employees are free to refrain from union activity and to reject 
union representation while showing little concern about the 
rights of employees to engage in concerted activity, to choose 
and keep a union, and to be free from anti-union 
discrimination.
    And in case after case, it has found that employees' 
statutory rights must yield to countervailing business 
interests of all sorts, including private property rights, 
various managerial prerogatives, notions of workplace civility, 
and employer free speech rights. Under this statute, when 
policy choices so persistently go this way, we have a problem.
    In addition, the board has regularly ignored the economic 
realities of the workplace or the vulnerability of working 
people. And it has departed from established law without 
adequate predicate or good reason, as the dissents have argued.
    Today's labor laws were the product of tremendous struggle. 
We honor that struggle when we take the act seriously, when we 
enforce it fairly and thoughtfully, and even when we point out 
its shortcomings. Certainly, the board operates under 
significant constraints, a judicial, political, and economic 
climate indifferent or even hostile to collective bargaining, 
and arguably antique statute.
    Still the board can play a meaningful role in preserving 
the values of this act and in furthering its aim. Its failure 
to do even that is a lost opportunity.
    At a time when union membership is at an historic low point 
and the earnings gap growing, board decisions threaten to undo 
the law's assumption about collective action as a means to 
redress economic inequality. Restoring federal labor law to its 
intended purposes is obviously no panacea, but it would be a 
step in the right direction.
    Thank you. And I would be happy to answer your questions.
    [The statement of Ms. Liebman follows:]

  Prepared Statement of Hon. Wilma B. Liebman, Member, National Labor 
                            Relations Board

    Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and 
Ranking Member Kline, and Members of the Subcommittees: Thank you for 
inviting me to testify today about the recent decisions of the National 
Labor Relations Board and their impact on workers' rights. It is my 
privilege to appear before you today.
    I dissented from many of the Board's recent decisions--and from 
many earlier decisions, as well. Unfortunately, their impact on 
workers' rights has been uniformly negative. As Member Dennis Walsh and 
I said in one dissent, the Board's recent decisions ``will surely 
enhance already serious disenchantment with the [law's] ability to 
protect the right of employees to engage in collective bargaining.''\1\ 
While any one decision standing alone may not be cataclysmic in impact, 
viewed together, they represent a pattern of weakening the protections 
of the Act.
    Today, fewer workers have fewer rights, and weaker remedies, under 
the National Labor Relations Act. Virtually every recent policy choice 
by the Board impedes collective bargaining, creates obstacles to union 
representation, or favors employer interests. It is inconceivable under 
this statute that the answer could always be the same. No wonder that 
there has been loss of faith in the Board. That development is 
regrettable. It exacerbates an already existing concern whether the Act 
is still effective in protecting the right to organize and in promoting 
collective bargaining--the core purposes of federal labor law, 
alongside ensuring employee free choice in these matters.
    A. My perspective on the Board's decisions is shaped by my 
considerable experience there and by a career spent in labor law and 
labor policy, both in and out of government.
    Now in my third term, I am the longest-serving Member of the 
current Board. I began my service a little more than ten years ago, on 
November 14, 1997, after being appointed by President Clinton and 
confirmed by the Senate. I was reappointed and confirmed in 2002 and 
again in 2006. My current term expires in August 2011. By that time, I 
will be the third longest-serving Member in the history of the Board.
    Before joining the Board, I served for several years at the Federal 
Mediation and Conciliation Service (FMCS), first as Special Assistant 
to the Director and then as Deputy Director. I came to the FMCS from a 
labor union, the Bricklayers and Allied Craftsmen, where I served as 
Labor Counsel. Previously, I had been legal counsel at the 
International Brotherhood of Teamsters for nine years. I began my legal 
career at the Board, where I served as a staff attorney from 1974 to 
1980, after graduating from the George Washington University Law Center 
here in Washington. In short, my career has come full circle: from the 
Board, to the Board.
    I understand that today's hearing was prompted by the flurry of 
decisions issued by the Board in September of this year, as its fiscal 
year drew to a close. I will address some of those decisions 
specifically, from a dissenter's perspective. But first, I would like 
to thank both Subcommittees for focusing attention on the Board and its 
work.
    For too long, labor law and policy issues have been removed from 
public policy discourse. These are difficult issues, and consensus on 
resolving them may be hard to achieve--which must explain why the 
National Labor Relations Act has not been significantly amended since 
1947. But I would hope for a common recognition that these issues are 
important, no matter how dry and legalistic they sometimes seem--that 
they matter to working people, to businesses, and to our economy and 
our society as a whole. It is critical that these issues receive 
informed consideration from the public and from the Congress. If our 
industrial era law does not keep pace with the realities of today's 
economy and the evolving workplace, then the protections it seems to 
offer workers are illusory. Today social and economic pressures on the 
collective bargaining system are compounded by a legal regime that is 
making it harder for that system to work and by an administrative 
agency that, at bottom, lacks commitment to fixing the problem.\2\
    B. Let me turn to the Board's September decisions, and begin by 
putting them in context. First, the decisions attracted attention not 
only because of their holdings, but because they were issued more or 
less as a group. On that last score, I hesitate to fault my colleagues 
at the Board. The Board's goals for promptly deciding cases, under the 
Government Performance and Results Act (GPRA), are keyed to the fiscal 
year, which ends on September 30. It has become common in recent years 
for the Board to push hard during the final months of the fiscal year 
to issue decisions: in effect, to rush to meet the GPRA deadline. That 
practice may not be ideal, but it is not nefarious. The result, of 
course, may be that several major decisions issue virtually at once. 
And if those decisions all, or nearly all, cut the same way, their 
impact is felt more forcefully, and the perception of unfairness is 
more acute. That is what happened this year.
    That said, there is something extraordinary about the Board's 
recent decisions. They are the climax of a trend that is now several 
years old. The Board is notorious for its see-sawing with every change 
of Administration. But something different is going on--more ``sea 
change'' than ``see-saw.'' The current Board, it seems to me, is 
divorced from the National Labor Relations Act, its values, and its 
goals. Its decisions have demonstrated as much. It was not surprising, 
perhaps, when the current Board reflexively overturned a series of 
decisions by the prior, Clinton Board. But the current Board has 
reached back decades, in some instances, to reverse long-established 
precedent, often going to the core values of this Act. And it has often 
reversed precedent on its own initiative, without seeking briefing or 
oral argument. Most important, when the Board has decided to reverse 
precedent, its reasons for doing so have fallen short--as dissenting 
opinions have pointed out.\3\
    The result has been more than a change in the law, or discontent 
with the outcome of particular cases. It has been a loss of confidence 
in the Board and the legitimacy of the process, not only among persons 
and groups on the losing end of Board decisions, but also among neutral 
observers, including labor-law scholars.\4\ The Board's case intake is 
down accordingly. Unions have turned away from the Board's election 
machinery, and employees and unions hesitate to file unfair labor 
practice charges, skeptical--or even fearful--of the result.\5\ In an 
historic twist, unions are increasingly turning to state or local 
governments for help in protecting workers, with diminished hope that 
the federal government can be a guarantor of important rights. It is a 
troubling signal when protesters converge on the Board and demand that 
the Board be closed for renovations. To dismiss this discontent as 
merely politics is a mistake, if not irresponsible. We all have an 
interest in preserving the legitimacy of the legal process.
    C. I will highlight only a few of the decisions issued by the Board 
in September 2007. Nearly all of the significant cases include a 
dissent, which hopefully speaks for itself.
    Of the September cases, the most significant, and disturbing to me, 
is a decision creating new obstacles for employers and unions who wish 
to establish a collective-bargaining relationship by means of voluntary 
recognition. In recent years, unions have increasingly sought to bypass 
the Board's election machinery and to negotiate voluntary recognition 
arrangements. The Board's procedures are seen as taking too long, 
leaving employees vulnerable to coercion by employers, and generating 
campaign animosity that can taint a new bargaining relationship.
    Under long-established law, an employer is free to recognize a 
union voluntarily--rather than demanding that the Board conduct an 
election--if the union is able to demonstrate that it has uncoerced 
majority support among employees, typically by collecting signatures on 
authorization cards.\6\ After voluntary recognition, the Board will not 
entertain an election petition, or permit an employer to withdraw 
recognition from the union unilaterally, until a reasonable period for 
collective bargaining has elapsed. This so-called ``recognition bar'' 
rule--which encourages voluntary recognition and stabilizes collective 
bargaining--has been in place, without challenge, for 40 years.\7\
    No longer. In Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), the 
Board overruled precedent and jettisoned the recognition bar, without 
solid factual support for its ruling. In dissenting from the Board's 
decision to consider the issue raised in Dana, Member Walsh and I 
observed that with respect to voluntary recognition, union ``[s]uccess 
* * * has prompted greater scrutiny'' by the Board.\8\
    Now, when an employer agrees to voluntarily recognize a union, 
after the union has demonstrated majority support, it must post a 
notice informing employees that it has done so and telling them how 
they can get rid of the union. That posting opens a 45-day window 
period, during which employees--provided they marshal 30 per cent 
support among their co-workers--may petition the Board for an election 
to decertify the union.
    In dissent, Member Walsh and I explained the serious flaws in the 
majority's decision. The majority failed to recognize that voluntary 
recognition is a ``favored element of national labor policy,'' as at 
least one federal appellate court has put it.\9\ By effectively putting 
voluntary recognition under a cloud, the majority's new scheme 
discourages employers from recognizing unions without an election. And 
if an employer does extend voluntary recognition, the parties' new 
collective-bargaining relationship cannot operate effectively until the 
window-period closes. Unions will be under great pressure to produce 
results for employees during that period, yet employers will have 
little incentive to bargain seriously, if they cannot be sure the 
relationship will continue. As the dissent put it, the decision in Dana 
``relegates voluntary recognition to disfavored status by allowing a 
minority of employees to hijack the bargaining process just as it is 
getting started.''\10\
    I should point out that the notice to employees required in Dana--
informing them that they may challenge the employer's voluntary 
recognition of a union--is unprecedented. Remarkably, more than 70 
years after the National Labor Relations Act was passed, the Board does 
not require employers to post any notice informing employees of their 
rights under federal labor law, except three days before a scheduled 
election and as a remedy in cases where the employer has committed an 
unfair labor practice.\11\ The Board has never acted on long-pending 
petitions for rulemaking requiring such a notice. It is high time we 
did.
    This is not the only aspect of the Dana decision that at least 
suggests a double-standard. In Dana, one of the reasons offered by the 
majority for its new rule is the claim that Board elections are more 
reliable in determining employees' true wishes than are the signed 
cards typically collected by unions to establish majority support. In 
this respect, Dana can be contrasted with another September decision, 
Wurtland Nursing & Rehabilitation Center, 351 NLRB No. 50 (Sept. 29, 
2007). There, a two-Member majority held that an employer had lawfully 
withdrawn recognition from a union--without an election--because the 
union had lost majority support. The majority relied on a petition 
signed by a majority of employees that stated: ``We the employee's 
[sic] * * * wish for a vote to remove the Union. * * *'' The employees, 
of course, did not get the vote they wanted; rather, their employer was 
permitted to decide for them whether they would continue to be 
represented by the union. In dissent, Member Walsh argued that the 
employer should have been required to seek a Board election.\12\ The 
majority rejected that view, concluding that the petition--despite its, 
at best, ambiguous wording--was enough to establish that employees no 
longer wanted union representation.
    In Dana, then, employee-signed cards are treated as suspect when 
they are used to establish union representation. But in Wurtland, the 
Board had no trouble in relying on an employee-signed petition to end 
union representation, without an election, even though employees seemed 
to be asking precisely for an election. That contrast understandably 
raised questions about the Board's fairness.\13\ From all appearances, 
the current Board is much more protective of employees who wish to 
reject unionization than it is of employees who seek to unionize. 
Likewise, unilateral employer action to withdraw recognition from a 
union is apparently favored, but unilateral employer action--without a 
Board election--to recognize a union is not.\14\
    Another troubling September decision was Toering Electric Co., 351 
NLRB No. 18 (Sept. 29, 2007). There, the Board cut back on the 
protections granted to union salts: union members who apply for work 
with non-union employers in order to uncover anti-union discrimination 
and, if hired, to engage in organizing activity. Salting is an 
important organizing tool for many unions, especially in the 
construction industry. The Supreme Court has held, unanimously, that 
salts are statutory employees under the National Labor Relations Act 
and thus are entitled to the protection of the law, including when they 
seek work.\15\
    In cases involving salts, the Board's framework for finding 
unlawful hiring discrimination was carefully crafted in a bipartisan 
2000 decision, FES, 331 NLRB 9 (2000). The current Board, however, has 
moved farther and farther away from FES, taking an approach to salting 
that is at odds with Supreme Court doctrine and that makes it easier 
for employers to engage in anti-union discrimination.
    To begin, in a May 2007 decision, Oil Capitol Sheet Metal, Inc., 
349 NLRB No. 118 (May 31, 2007), a Board majority--without being asked 
to and without inviting briefs--adopted new rules for determining the 
length of the backpay period and entitlement to other remedies when a 
union salt has been discriminated against. Reversing Board precedent 
that had been approved by the federal courts, the majority said that it 
would no longer presume that a salt would have worked from the date he 
was unlawfully denied employment until the date the employer made a 
valid job offer to him--the general presumption that applies to all 
victims of unlawful discrimination. This rule is an example of the 
well-established principle in Board law (and in our legal system 
generally) that uncertainties are to be resolved against the wrongdoer: 
here, the employer who engaged in unlawful discrimination. Rather than 
adhere to this principle, the majority adopted a new rule, effectively 
requiring the salt to prove how long he would have worked--despite the 
fact that he had never been hired in the first place and that there is 
no practical way to establish how long an organizing drive might have 
lasted, or how it would have turned out, if the salt had been hired. 
Failure to meet this evidentiary burden not only cuts off backpay, but 
also precludes being instated on the job, as a remedy. As Member Walsh 
and I pointed out in our dissent, that approach is fundamentally 
unfair. We said that the Board was treating salts as ``a uniquely 
disfavored class of discriminatees.'' 349 NLRB No. 118, slip op. at 10.
    In September, the Board went farther, again acting on its own 
initiative, without briefing, oral argument, or even a request to 
reconsider precedent. The Toering decision held, in effect, that 
employers were free to discriminate against union salts, unless it 
could be proved that the salts were genuinely interested in employment 
(as the Board only vaguely defined it). Of course, one purpose of 
salting is to uncover anti-union discrimination, just as civil rights 
groups employ testers to seek housing or employment.\16\
    That decision marked a fundamental shift away from the traditional 
analysis in labor-law discrimination cases. Historically, 
discrimination cases have turned on the motive of the employer, not on 
the motive of the applicant for employment. Under the Board's new 
approach, an employer who categorically refused to hire union members 
would commit no violation of the law, unless a salt could prove that he 
would have accepted the job, if offered. Let me be clear. The Board did 
not simply limit the remedies for salts who failed to meet their 
evidentiary burden. Rather, it held that there could be no violation of 
the Act, without satisfactory proof of a genuine interest in 
employment--even if the employer's refusal to hire the salt was not 
motivated, in the least, by the salt's level of interest in the job.
    In dissent, Member Walsh and I quoted the Supreme Court's words in 
a historic 1941 decision, holding that job applicants (and not merely 
current employees) were protected by the National Labor Relations Act:
    Discrimination against union labor in the hiring of men is a dam to 
self organization at the source of supply. The effect of such 
discrimination is not confined to the actual denial of employment; it 
inevitably operates against the whole idea of the legitimacy of 
organization.
    Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185 (1941). We said that 
the Toering decision ``creates a legalized form of hiring 
discrimination.'' 351 NLRB No. 18, slip op. at 21.
    Other September decisions also eroded the Board's ability to 
enforce the law effectively, by cutting back on the remedies available 
to workers who have been victimized by unfair labor practices. These 
decisions continue the trend of recent years. Let me offer two 
examples.
    In St. George Warehouse, 351 NLRB No. 42 (Sept. 30, 2007), the 
Board reversed more than 45 years of precedent to hold, for the first 
time, that the General Counsel was required to present evidence that an 
unlawfully-discharged employee took reasonable steps to find a new job 
after being fired, at the risk of being denied remedial backpay. 
Traditionally, it has been the employer's burden--as the wrongdoer--to 
establish that jobs were available and that the employee did not try 
hard enough to find one. In dissent, Member Walsh and I explained why 
the Board's traditional approach was fair and reasonable. Writing 
separately, I also made a more general point: that the majority was 
weakening a remedy that ``has long been widely recognized as terribly 
weak to begin with.'' 351 NLRB No. 42, slip op. at 11. Labor-law 
scholars seem to be in unanimous agreement that the Board's backpay 
awards, because they require employees to mitigate their losses, are 
simply too small to deter employers from breaking the law.\17\
    A second, unfortunate backpay case issued in September was the 
panel decision in Grosvenor Resort, 350 NLRB No. 86 (Sept. 11, 2007). 
There, a two-Member majority held, among other things, that certain 
employees, who had been unlawfully permanently replaced for striking, 
forfeited the right to full backpay, because they waited too long--more 
than two weeks--before seeking new work. To hold otherwise, the 
majority said, would ``reward idleness.'' 350 NLRB No. 86, slip op. at 
3. Member Walsh dissented, pointing out that the employees ``did not 
sit idly by; they were engaged in concerted action [an unfair labor 
practice strike] to get their jobs back'' and ``[o]nce it became clear 
that that was not going to happen, * * * they all sought and obtained 
work.'' Id. at 11.\18\ Member Walsh dissented as well from another, 
troubling holding of the majority: that certain employees who found 
interim work should have looked for additional work, instead of waiting 
for those jobs to begin. As Member Walsh pointed out, there is no good 
policy reason for demanding that employees look for ``'interim interim' 
work.'' Id. at 13. In its parsimonious dissection of backpay claims, 
Grosvenor Resort suggests that the current Board is not committed to 
providing adequate remedies to victims of unfair labor practices. 
Reading Grosvenor Resort, one almost wonders who the wrongdoer really 
was: the employer or the employees. What reasonable employee will risk 
exercising her labor law rights, if she is uncertain about her chances 
at the Board, but can count on a long delay before a violation might be 
found, more delay before a remedy is awarded, and a meager remedy in 
the end.
    For some apparent violations of the Act, finally, the Board will no 
longer grant any remedies. Among the September decisions was BE & K 
Construction Co., 351 NLRB No. 29 (Sept. 29, 2007), a case on remand 
from the Supreme Court. There, the majority held that a lawsuit that 
interferes with activity protected by the Act is lawful, even if it was 
filed with a retaliatory motive, so long as there is a reasonable basis 
for bringing the suit. In other words, even if an employer's sole 
motive in bringing the suit is to punish employees financially for 
daring to exercise their labor-law rights, and even if the suit itself 
is part of a coordinated series of unfair labor practices, the employer 
has not committed an unfair labor practice by pursuing litigation. It 
is certainly true that in this area, the Board must proceed carefully, 
in light of an employer's constitutional right to petition the 
government, including by filing a lawsuit against employees and their 
union. But the majority's position in BE & K that its sweeping 
protection of employer lawsuits was somehow dictated by the Supreme 
Court is simply incorrect, as Member Walsh and I pointed out in 
dissent.
    D. I have touched on only some of the Board's September decisions. 
But rather than discuss all of them, I would point out that none of 
these decisions should have surprised a careful observer of the current 
Board. They represent the crest of a wave set in motion five years ago, 
when the labor-law tide turned.
    Where decisional choices are available to the Board, the choice too 
often selected narrows statutory coverage or protection. Fewer workers 
have been afforded fewer rights; employee rights are subordinated to 
countervailing business interests; meaningful remedies are denied; and 
recent decisions that tried to update the law have been overruled. 
Increasingly, the Board has adopted a formalistic approach to 
interpreting the law, turning away from the real world and the 
challenges it poses for labor policy.\19\
    To begin, the 2001-present Bush Board (in its various incarnations) 
has almost reflexively overruled many of the key decisions issued by 
the prior Clinton Board, which had endeavored to update the law by 
affording greater protections to workers in an evolving economy. For 
example, modest efforts were made to give more workers coverage under 
the Act's protections,\20\ to enhance the ability of contingent workers 
to engage in collective bargaining,\21\ to preserve representational 
rights after a corporate merger or consolidation,\22\ and to provide 
non-union workers (more than 90 percent of today's private sector 
workforce) with an important protection against unfair discipline.\23\
    Simultaneously, the present Board majority has undermined long-
established doctrines that promote collective bargaining by allowing 
employers and unions to enter into voluntary recognition 
arrangements.\24\ The Board has demonstrated a corresponding reluctance 
to revisit doctrines that hinder collective bargaining by allowing 
employers to unilaterally terminate collective bargaining 
relationships,\25\ making it more difficult to bring the ``necessary 
party'' into the collective bargaining process,\26\ facilitating 
employer pressure on employees to reject unionization,\27\ placing 
artificial barriers in front of voluntary recognition of unions by 
employers,\28\ and permitting employers to retaliate against employees 
for engaging in statutorily-protected conduct.\29\
    Perhaps the best illustration of the Board's current decisionmaking 
is its 2006 decision in Oakwood Healthcare, Inc.,\30\ interpreting key 
terms in the Act's definition of a ``supervisor.'' This decision came 
in the wake of the Supreme Court's decision in Kentucky River,\31\ 
which had rejected the Clinton Board's attempt at a limiting 
interpretation with respect to professionals. In Oakwood, the Board 
majority--relying on dictionary definitions of ambiguous statutory 
terms, without explaining the choice among definitions--selected a 
more-expansive-than-necessary reading of the supervisory exclusion. The 
majority expressed its indifference to the impact of its decision, 
rejecting what it called the dissenters' ``results-driven approach'' in 
looking to the potential real-world consequences of the majority's 
interpretation.\32\ The Board thus issued a decision that potentially 
swept many professional employees outside of the Act's protection, 
while failing to engage in the sort of reasoned decision making that 
Congress expected from the Board.
    Unfortunately, Oakwood reflects a trend to limit the coverage of 
the Act itself.\33\ When non-traditional (or non-traditionally 
employed) workers have sought to organize themselves into a union, the 
Board majority has denied them statutory ``employee'' status: graduate 
teaching assistants,\34\ disabled workers,\35\ artists' models,\36\ and 
newspaper carriers.\37\ The Board has also limited the ability of 
contingent employees--workers supplied by one employer to another--to 
engage in collective bargaining.\38\
    In these cases, the majority justified its decisions on dubious 
policy grounds, giving little weight to the plain language of the Act 
(which is perhaps surprising, given the majority's adherence to a 
narrow textualism in Oakwood).\39\ The Board largely ignored the 
economic realities of the employment relationships in question, and 
declined to exercise its discretion to afford a broader group of 
workers a right to collective representation.
    What is the result? Fewer workers have fewer rights under the Act. 
In several recent decisions, the Board majority has chosen a very 
confined view of ``concerted'' activity for the purpose of ``mutual aid 
or protection,'' as protected by section 7 of the Act.\40\ All private 
sector workers covered by the Act, union-represented or not, have the 
right to engage in these activities. Yet, in IBM Corp.,\41\ the Board 
held that, unlike unionized workers, employees in the non-union sector 
have no right to a witness at an investigatory interview that might 
lead to discipline. IBM reversed the recent Epilepsy Foundation\42\ 
decision, which was significant not just for its specific holding, but 
also for its reminder that the statute's protections apply to 
unrepresented workers, whether they know it or not.\43\ With IBM, the 
Board signaled that it was not prepared to treat non-union workers as 
fully within the Act's protection. Because so few private sector 
employees are unionized, statutory protections for non-union workers 
have never been more important. Such workers do, in fact, spontaneously 
act together to seek better working conditions,\44\ and thus the Act 
might well matter to them.
    The Board majority regularly has found that employee statutory 
rights must yield to countervailing business interests. These interests 
are far-ranging. They include private property rights (including an 
employer's property interest in a piece of scrap paper used to post a 
union-meeting notice),\45\ various managerial prerogatives,\46\ 
business justifications,\47\ notions of workplace decorum and 
civility,\48\ and employer free speech rights.\49\ In cases involving 
unionized workers, the decisions signify a laissez-faire approach to 
bargaining, giving employers free rein to operate without meaningful 
bargaining.\50\ Where non-unionized workers were involved, these cases 
signal that their right to join together to improve working conditions 
is largely illusory. In several cases, intimidating employer statements 
made during an organizing campaign were found to be lawful expressions 
of employer free speech.\51\ But where employees make statements or 
engage in conduct seen as exceeding rules of civility, decorum, or 
loyalty, the employees have been held to have lost the protection of 
the Act.\52\ These decisions suggest an underlying discomfort with 
government regulation of business, the notion of collective action, and 
the zeal that may accompany those efforts: the fundamental premises of 
this statute.
    Although truly meaningful and effective remedies for unfair labor 
practices are limited under the Act, the Board nonetheless has refused 
to exercise the full remedial discretion it does have. For example, the 
Board has been reluctant to pierce the corporate veil to impose 
liability for unfair labor practices.\53\ The regular refusal to issue 
Gissel bargaining orders (which require an employer to recognize a 
union with majority support, where the employer's unfair labor 
practices have frustrated the election process) is another such 
example.\54\ So too is the continuing rejection of the ``minority'' 
bargaining order, where an employer's egregiously unlawful conduct has 
prevented a union from establishing majority support.\55\ The Board has 
also shown no interest in adopting new modest monetary remedies for 
victims of discrimination.\56\ Indeed, the Board's rulings have created 
new obstacles to backpay awards.\57\ Decisions about other minor 
remedial innovations, such as the electronic posting of required 
notices to employees, have been deferred for no compelling reason.\58\
    Some of the Board's recent decisions have failed to survive 
judicial scrutiny.\59\ Other decisions have navigated the layers of 
precedent by ignoring precedent entirely or by distinguishing earlier 
cases on abstract, questionable grounds.\60\ And too many decisions 
have cast doubt on precedent unnecessarily, or have applied it 
reluctantly, suggesting that the law may soon change, and sowing 
confusion.\61\ This kind of decisionmaking is of little use to parties 
struggling to make sense of their statutory rights and duties. While it 
may dispose of particular cases, it is ultimately unhelpful in shaping 
a coherent national labor policy.
    Meanwhile, the Board's approach to exercising and preserving its 
own authority is contradictory. It has jealously guarded its 
representation-case functions (discouraging union attempts to organize 
outside the Board's procedures),\62\ while eagerly deferring to dubious 
arbitration decisions in unfair labor practice cases (sometimes 
frustrating the vindication of statutory rights).\63\
    Perhaps this contradiction can be explained by the Board's 
orientation toward protecting employee free choice in the narrow sense: 
taking special care to ensure that employees are free to refrain from 
union activity and to reject union representation, while showing little 
concern about the rights of employees to engage in concerted activity, 
to choose (and keep) a union, and to be free from anti-union 
discrimination. Several Board decisions have made it more difficult for 
unions to organize workers.\64\ As discussed above, the Board has 
rolled back protections for ``salts,'' union members who seek 
employment to engage in organizing activity.\65\ Other decisions have 
shown a disappointing reluctance to confront what clearly seemed to be 
whole-scale employer discrimination in hiring.\66\ Tellingly, the Board 
has stated expressly, for the first time, that the exercise of employee 
free choice is superior in the statutory scheme to the stability of 
collective bargaining.\67\ This elevation of one of two competing 
ideals in the Act undoes the delicate balance long established in Board 
doctrine, and signals a devaluing of what is unique about this statute: 
the protection of collective rights.
    E. My testimony today has largely been a reprise of my 
disagreements with the Board's majority. Regrettably, the Board is 
deeply divided. I wish that the Board were moving the law in a better 
direction, in harmony with the goals of the statute. But let me end my 
testimony by echoing the remarks that I made at my last swearing-in and 
by explaining why--even being in the minority, and even at a difficult 
historical moment--I feel honored to serve on the Board and to pursue 
the values embodied in our labor law.
    Every day, I read cases involving working people who, despite the 
odds and the obstacles, join together to improve life on the job. They 
work on assembly lines and in cardiac wards, on construction sites and 
in mega-stores. They slaughter hogs and drive trucks, clean hotel rooms 
and care for the disabled. Sometimes they have unions to help them, but 
other times they act spontaneously to help each other--a reminder that 
solidarity is part of who we are. As long as that is the case, then the 
values embodied in the Act are living values, even after 71 years.
    Whatever its flaws and anachronisms, and whatever the lapses made 
by the Board in applying it, the National Labor Relations Act is a 
remarkable piece of legislation. At its heart, the Act is a human 
rights law. No one in 1935 would have labeled the statute that way, but 
the label is accurate. The concept of fundamental rights at work is now 
part of the international legal order. Freedom of association and the 
freedom to engage in collective bargaining are recognized as core 
principles of a democracy. The National Labor Relations Act is the 
foundation of our commitment to values now recognized around the world.
    Today's labor laws were the product of tremendous struggle. We 
honor that struggle when we take the Act seriously, when we enforce it 
fairly and thoughtfully, and even when we point out its shortcomings. 
Certainly, the Board operates under significant constraints: a 
judicial, political and economic climate indifferent or even hostile to 
collective bargaining; an arguably antique statute, and a lack of 
administrative will. Yet I would suggest that the Board, even under the 
current statutory scheme, can play a modest but meaningful role in 
preserving the values of this Act and in furthering its aims. Its 
failure to do even that is an unfortunate lost opportunity. At a time 
when union membership is at a historic low point, and the earnings gap 
growing, recent Board decisions are reinforcing trends that imperil 
collective bargaining as a national policy goal and that threaten to 
undo Congressional assumptions about collective action as a means to 
redress economic inequality. Restoring federal labor law to its 
intended purposes is obviously no panacea. But it would be a step in 
the right direction.
    Thank you again for the opportunity to participate in this hearing.
                                endnotes
    \1\ Dana Corp., 351 NLRB No. 28, slip op. at 11 (Sept. 29, 2007) 
(dissent).
    \2\ I have addressed this larger issue in an article that is 
forthcoming in the Berkeley Journal of Labor and Employment Law. Wilma 
B. Liebman, Decline and Disenchantment: Reflections on the Aging of the 
National Labor Relations Board, 28 Berkeley J. Employment & Labor L. 
569 (2007). I have submitted the article for inclusion in the hearing 
record.
    \3\ The current Board has been, and remains, deeply divided, in 
cases both large and small. The percentage of dissents may be 
unprecedented. In 1984, during what is generally regarded as the most 
contentious period in the Board's recent history--the tenure of 
Chairman Donald Dotson--there were dissents in about 17% of all cases, 
counting dissents by any Member of the Board. In comparison, during 
Fiscal Year 2007, Member Dennis Walsh and/or I dissented in about 34% 
of the cases.
    \4\ See references in 28 Berkeley J. Employment and Labor L. at 
570-71.
    \5\ The Board has experienced a dramatic, and unprecedented, 
decline in case filings in the past decade. Between fiscal years 1997 
and 2007, the number of representation petitions filed dropped from 
6,179 to 3,324, a 46% decline. (From 2005 to 2006 alone, the 
representation case intake dropped by 26%.) For the same ten-year 
period, unfair labor practice charges dropped from 33,439 to 22,147, a 
34% decline.
    \6\ Any person may file an unfair labor practice charge with the 
Board, attacking the union's majority support as unlawfully coerced. 
That procedure may lead the Board to require the employer to withdraw 
recognition from the union.
    \7\ See Keller Plastics Eastern, Inc., 157 NLRB 583 (1966); Sound 
Contractors, 162 NLRB 364 (1966).
    \8\ Dana Corp., 341 NLRB 1283, 1284 (2004) (dissent).
    \9\ NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 
1981), cert. denied, 454 U.S. 894 (1981).
    \10\ 351 NLRB No. 28, slip op. at 17.
    \11\ Notably, the Board has required unions to provide employees 
with information related to the required payment of dues. See 
California Saw & Knife Works, 320 NLRB 224 (1995), enfd. 133 F.3d 1012 
(7th Cir. 1998).
    \12\ Wurtland was decided by a three-Member panel of the Board; I 
did not participate in the decision. I agree with Member Walsh's 
dissenting view, however.
    \13\ Curiously, the Dana majority contrasted union authorization 
cards used to win voluntary recognition with an anti-union employee 
petition, asserting that the petition would lead to an election. 351 
NLRB No. 28, slip op. at 6 fn. 19. That assertion is simply wrong, as 
Wurtland demonstrates.
    \14\ For another example of this orientation, see the Board's 
August 2007 decision in Shaw's Supermarkets, Inc., 350 NLRB No. 55 
(2007). There the Board permitted an employer to withdraw recognition 
from the union after the third year of a five-year agreement, even 
though the employer would not be permitted to file a petition for an 
election at that point, and even though a petition for a 
decertification election filed by employees was pending at the Board. 
In response to my dissent, the majority stated:
    [T]his is a case where the employer is responding to an unsolicited 
and uncoerced expression of a loss of majority support for the union as 
a bargaining representative. Our dissenting colleague states that we do 
not seem to believe that that a Board election, based on the employee-
filed petition, will vindicate employee freedom of choice. This is 
untrue. Rather, our concern is that, in the time it takes to ultimately 
resolve the representation case, employees will be forced to endure 
representation that they have unquestionably rejected. Id., slip op. at 
4-5 (emphasis added).
    The alarm about Board election delays that justified withdrawals of 
recognition in Shaw's and Wurtland is expressly minimized in Dana. 351 
NLRB No. 28, slip op. at 6-7.
    \15\ NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995).
    \16\ The courts have held, notably, that job-applicant testers have 
standing to sue under Title VII of the Civil Rights Act, as Member 
Walsh and I pointed out in our Toering dissent. 351 NLRB No. 18, slip 
op. at 16 & fn. 12, citing Kyles v. J.K. Guardian Security Services, 
222 F.3d 289, 300 (7th Cir. 2000).
    \17\ See, for example, Paul C. Weiler, Promises to Keep: Securing 
Workers' Rights to Self-Organization under the NLRA, 96 Harv. L. Rev. 
1769, 1789 (1983).
    \18\ The case was decided by a three-Member panel. I did not 
participate in the decision, but I agree with Member Walsh's dissent.
    \19\ See, e.g., Bath Iron Works Corp., 345 NLRB No. 33 (2005); 
Boghosian Raisin Packing Co., 342 NLRB 333 (2004); Alexandria Clinic, 
339 NLRB 1262 (2003).
    \20\ New York Univ. Medical Ctr, 332 NLRB 1205 (2000), overruled by 
Brown Univ., 342 NLRB 483 (2004).
    \21\ Sturgis, 331 NLRB 1298 (2000), overruled by Oakwood Care Ctr, 
343 NLRB 659 (2004).
    \22\ St. Elizabeth Manor, 329 NLRB 321 (1999), overruled by MV 
Transp., 337 NLRB 770 (2002).
    \23\ Epilepsy Found., 331 NLRB 676 (2000), overruled by IBM Corp. 
341 NLRB No. 148 (2004).
    \24\ See, e.g., Dana Corp., 351 NLRB No. 28 (2007) (establishing 
window period for filing decertification petition, following employer's 
voluntary recognition of union); Shaw's Supermarkets, 343 NLRB 963 
(2004) (granting review to consider whether employer waived right to 
Board election, and whether to permit such waiver with respect to 
after-acquired stores where union demonstrates majority support). See 
also Supervalu, Inc., 351 NLRB No. 41 (2007) (holding that contract 
provision requiring employer to recognize union at newly-organized 
stores was not mandatory subject of bargaining, absent proof that 
stores would be included in existing bargaining unit); Marriott 
Hartford, 347 NLRB No. 87 (2006) (granting review to consider whether 
union had demanded voluntary recognition, permitting employer to file 
election petition with Board, where union sought agreement for card-
check recognition).
    \25\ Nott Co., 345 NLRB No. 23 (2005) (permitting employer to 
withdraw recognition from union and repudiate collective-bargaining 
agreement, following employer's acquisition of non-union business and 
consolidation of union and non-union workforces of equal size).
    \26\ Airborne Freight Co., 338 NLRB 597 (2002) (declining to 
revisit current standard for determining joint-employer status, which 
requires direct and immediate control over matters relating to 
employment relationship).
    \27\ Frito-Lay, 341 NLRB 515 (2004) (following precedent that 
permits employer ``ride-alongs'' in which employer officials accompany 
truck drivers for up to 12 hours in order to campaign against union).
    \28\ Elmhurst Care Ctr., 345 NLRB No. 98 (2005) (continuing to 
prohibit employer from voluntarily recognizing union where employer has 
hired core group of employees, but is not yet engaged in normal 
business operations).
    \29\ Reynolds Electric, Inc., 342 NLRB 156 (2004) (continuing to 
apply rule that discharge of employee for engaging in concerted 
protected activity is lawful, absent showing that employer was aware of 
concerted nature of activity).
    \30\ 348 NLRB No. 37 (2006).
    \31\ 532 U.S. at 706.
    \32\ 348 NLRB No. 37, slip op. at 3.
    \33\ There are two notable exceptions to this trend: the decision 
to extend the Act's coverage to casinos on tribal reservations, San 
Manuel Indian Bingo & Casino, 341 NLRB 1288 (2004), enforced, 475 F.3d 
1306 (D.C. Cir. 2007), and the decision rejecting the creation of a 
novel national-security exemption for private airport security 
screeners, Firstline Transp. Security, Inc., 347 NLRB No. 40 (2006).
    \34\ Brown Univ., 342 NLRB 483 (2004) (holding that educational 
relationship is not employment).
    \35\ Brevard Achievement Cnt., 342 NLRB 982 (2004) (holding that 
rehabilitative relationship was not employment).
    \36\ Pa. Acad., 343 NLRB 846 (2004) (holding that models were 
independent contractors).
    \37\ St. Joseph News-Press, 345 NLRB No. 341 (2005) (holding that 
carriers were independent contractors).
    \38\ Oakwood Care Ctr., 343 NLRB 659 (2004).
    \39\ 348 NLRB No. 37.
    \40\ See, e.g., Waters of Orchard Park, 341 NLRB No. 93 (2004) (two 
nurses who phoned a state hotline to report excessively hot conditions 
in a nursing home were not engaged in protected activity because their 
call was made in the interest of patient care, not their own terms and 
conditions of employment); Holling Press, 343 NLRB 301 (2004) (one 
female worker who sought the assistance of another in her sexual 
harassment charge against a male supervisor was looking out only for 
herself and not engaged in activity for mutual aid or protection).
    \41\ 341 NLRB 1288 (2004).
    \42\ 331 NLRB 676 (2000), enfd. in relevant part, 268 F.2d 1095 
(D.C. Cir. 2001).
    \43\ The majority justified its action by citing changes in the 
workplace, and, among other things, ``the events of September 11, 2001, 
and their aftermath.'' 341 NLRB at 1291. In response, the New York City 
Bar Association issued a highly-critical position paper, which observed 
that ``[t]o rely on such events in determining the rights of employees 
under the National Labor Relations Act distorts the legitimate decision 
making process and injects political considerations into a matter of 
statutory construction.'' See New York City Bar Association, Media 
Advisory, The New York City Bar Association Opposes NLRB Decision To 
Rely on the Terrorism Threat as a Reason to Deny Non-Union Employees 
The Right to Have A Representative Present During Disciplinary 
Interviews (Oct. 20, 2004); available at http://www.abcny.org/
PressRoom/PressRelease/2004--10--20.htm.
    \44\ See, e.g., Phoenix Processor, 348 NLRB No. 4 (2006) 
(unrepresented workers on fish-processing ship engaged in walk-out to 
protest 16 1/2- hour day; discharge upheld relying on anti-mutiny 
statute); Quietflex Mfg. Co., 344 NLRB No. 130 (2005) (unrepresented 
workers engaged in 12-hour protest in employer's parking lot, but did 
not interfere with access or operations; discharge upheld).
    \45\ Johnson Tech., Inc., 345 NLRB No. 47 (2005) (finding lawful 
employer's warning to employee who used scrap paper to replace union-
meeting notice that probably had been removed by management official).
    \46\ Deference to such prerogatives is illustrated by a series of 
decisions upholding the refusal of employers to provide unions with 
requested information. See, e.g., Raley's Supermarkets, 349 NLRB No. 7 
(2007) (dismissing allegation that employer unlawfully refused to 
provide union with requested information related to grievance involving 
employer investigation of alleged supervisory harassment); Northern 
Indiana Public Serv. Co., 347 NLRB No. 17 (dismissing allegation that 
employer unlawfully refused to provide union with investigatory 
interview notes involving alleged threat of violence by supervisor); 
Borgess Med. Ctr, 342 NLRB 1105 (2004) (refusing to order employer's 
disclosure of hospital incident reports, despite finding that refusal 
to provide reports to union was unlawful).
    \47\ See, e.g., Bunting Bearings Corp., 343 NLRB 479 (2004) 
(finding business justification for partial lockout limited to union 
members in bargaining unit), petition for review granted, 179 Fed. 
App'x. 61 (D.C. Cir. 2006); Midwest Generation, EME, LLC, 343 NLRB 12 
(2004) (finding business justification for partial lockout based on 
extent of employees' participation in strike), petition for review 
granted, 429 F.3d 651 (7th Cir. 2005).
    \48\ See, e.g., American Steel Erectors, Inc., 339 NLRB 1315 (2003) 
(finding that employer lawfully refused to hire former union employee 
who had criticized employer's job-safety record before state agency); 
PPG Industries, Inc., 337 NLRB 1247 (2002) (finding that employer 
lawfully disciplined employee who used vulgarity in characterizing 
employer's conduct toward co-worker being solicited to sign union 
card). See also Fineberg Packing Co., 349 NLRB No. 29 (2007) (finding 
that employer did not condone unlawful walkout by employees, despite 
manager's statement to employees that he was not firing anyone and that 
employees should ``come back tomorrow'').
    \49\ See, e.g., Aladdin Gaming, LLC, 345 NLRB No. 41 (2005) 
(finding lawful a management official's interruption of off-duty 
employees' conversation about signing union authorization cards); 
Werthan Packaging, Inc., 345 NLRB No. 30 (2005) (finding no 
objectionable election conduct where manager interrogated employee and 
stated that voting for union was not in best interests of employee and 
her family).
    \50\ See, e.g., Garden Ridge Mgmt., Inc., 347 NLRB No. 13 (2006) 
(dismissing allegation of surface-bargaining by employer and permitting 
withdrawal of union recognition), on motion for reconsideration, 349 
NLRB No. 103 (2007) (denying General Counsel's motion for 
reconsideration); Richmond Times-Dispatch, 345 NLRB No. 11 (2005) 
(finding that employer did not claim inability to pay bonus and so 
lawfully refused to provide financial information to union, following 
employer's claim that it was ``unable to pay'' annual bonus and had 
``no choice'' but to cancel bonus); Sea Mar Cmty. Health Ctrs., 345 
NLRB No. 69 (2005) (finding no violation in employer's refusal to 
bargain over closure of operation that was established by official 
without approval by upper management).
    \51\ See, e.g., Medieval Knights, LLC, 350 NLRB No. 17 (2007) 
(finding that consultant's statement that hypothetical employer could 
lawfully ``stall out'' contract negotiations was not threat that 
electing union would be futile); TNT Logistics No. Am., Inc., 345 NLRB 
No. 21 (2005) (finding that supervisor's unsupported statement that 
employer would lose only customer if employees unionized was lawful 
expression of personal opinion); Manhattan Crowne Plaza Town Park Hotel 
Corp., 341 NLRB 619 (2004) (finding that employer's statement 
recounting mass discharge of recently-unionized employees at another 
employer's hotels was not threat of reprisal); Curwood, Inc., 339 NLRB 
1137 (2003) (finding that employer's letter stating that customers 
viewed unionization negatively was lawful).
    \52\ See, e.g., Five Star Transportation, Inc., 349 NLRB No. 8 
(2007) (upholding employer's refusal to hire school bus drivers, 
employed by prior contractor, who had criticized employer in letters to 
school board).
    \53\ See, e.g., Flat Dog Productions, Inc., 347 NLRB No. 104 
(2006). In one recent glaring example, the Board majority refused to 
pierce the corporate veil to hold corporate co-owners personally liable 
for backpay obligations to employees who suffered financial 
consequences of flagrant unfair labor practices. By the time of the 
backpay proceedings, the co-owners had distributed all of the company's 
funds to themselves. The Board majority held, however, that because the 
distributions occurred before the unfair labor practice charges were 
filed, the distributions did not constitute an evasion of the company's 
legal obligations. A.J. Mechanical, Inc., 345 NLRB No. 22 (2005). The 
United States Court of Appeals for the District of Columbia Circuit 
disagreed, stating bluntly:
    Surely, it is reasonable to infer that a thief who robs a bank in 
broad daylight knows well before the date of his indictment that he may 
one day face criminal liability. The corporate conduct at issue here is 
the labor-law equivalent of a daylight robbery. It was neither subtle 
nor close to the line of legality.
    Carpenters and Millwrights, Local Union 2471 v. NLRB, 481 F.3d 804 
(D.C. Cir. 2007). See also US Reinforcing, Inc., 350 N.L.R.B. No. 41 
(2007) (refusing to find that two companies were alter egos, where 
principals co-habited but were not married).
    \54\ See, e.g., Hialeah Hospital, 343 NLRB 391 (2004).
    \55\ First Legal Support Services, 342 NLRB 350 (2004).
    \56\ Hotel Employees, Local 26, 344 NLRB No. 70 (2005) (declining 
to order ``tax compensation'' remedy for victim of discrimination who 
incurs heightened tax burden as result of receiving lump sum backpay 
award).
    \57\ St. George Warehouse, 351 NLRB No. 42 (2007) (reversing 
precedent and placing burden on General Counsel to produce evidence 
concerning discriminatee's job search, when employer demonstrates 
availability of jobs), and Grosvenor Resort, 350 NLRB No. 86 (2007) 
(denying backpay to discriminatees for not seeking work quickly enough 
and for not seeking interim employment while waiting for previously 
secured interim employment to commence), discussed more fully above. 
See also Anheuser-Busch, Inc., 351 NLRB No. 40 (2007) (reversing 
precedent and holding that employees discharged based on information 
from unlawfully-installed security cameras are not entitled to remedy); 
Aluminum Casting & Engineering Co., 349 NLRB No. 18 (2007) (denying 
employees full backpay for unlawfully withheld wage increase); Georgia 
Power Co., 341 NLRB 576 (2004) (denying employee unlawfully withheld 
promotion because General Counsel failed to prove that employee 
``certainly'' would have been promoted).
    \58\ Nordstrom, Inc., 347 NLRB No. 28 (2006).
    \59\ See Jochims v. NLRB, 480 F.3d 1161, 1164 (D.C. Cir. 2007) 
(reversing Board's finding of supervisory status, observing that ``the 
Board completely deviated from its own precedent and issued a judgment 
that is devoid of substantial evidence''); Guardsmark, LLC v. NLRB, 475 
F.3d 369 (D.C. Cir. 2007) (reversing Board's finding that employer's 
anti-fraternization rule was lawful); United Steel Workers v. NLRB, 179 
Fed. Appx. 61 (D.C. Cir. 2006) (remanding, as inconsistent with 
precedent, Board's finding that partial lockout was non-discriminatory, 
and observing that it was ``not appropriate'' for Board to 
``speculate'' as to employer's motive for lockout, given employer's 
burden of proof); New England Health Care Employees Union v. NLRB, 448 
F.3d 189, 193 (1st Cir. 2006) (reversing Board's ``arbitrary and 
capricious'' determination that employer lawfully refused to reinstate 
economic strikers, based on secret hiring of permanent replacements); 
International Chemical Workers Union Council v. NLRB, 447 F.3d 1153 
(9th Cir. 2006) (reversing, based on lack of substantial evidence, 
Board's determination that employer did not plead inability to pay and 
thus lawfully refused to provide financial information to union during 
bargaining); Slusher v. NLRB, 432 F.3d 715 (7th Cir. 2005) (reversing 
Board's determination that employer lawfully discharged union steward 
for purportedly harassing anti-union employee); Local 15, Int'l Bhd. of 
Electrical Workers v. NLRB, 429 F.3d 651 (7th Cir. 2005) (reversing 
Board's determination that partial lockout was non-discriminatory and 
remanding with instructions to find lockout unlawful); Brewers & 
Maltsters, Local Union No. 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005) 
(reversing, based on conflict with precedent, Board's refusal to grant 
make-whole remedy to employees disciplined as result of employer's 
unlawful installation of surveillance cameras).
    \60\ See, e.g., Bath Iron Works, 345 NLRB No. 33 (2005), enf'd., 
475 F.3d 14 (1st Cir. 2006) (dissenting opinion) (implicating 
``competing analytical approaches where an employer claims the right to 
act unilaterally with respect to a mandatory subject of bargaining, 
based on language in a collective-bargaining agreement'').
    \61\ See, e.g., American Red Cross Missouri-Illinois Blood Services 
Region, 347 NLRB No. 33 n. 21 (2006); Construction Products, Inc., 346 
NLRB No. 60 n. 1 (2006); Siemens Building Tech., 345 NLRB No. 91 n. 5 
(2005); Vanguard Fire & Supply Co., Inc., 345 NLRB No. 77 n. 9 (2005); 
Daimler-Chrysler Corp., 344 NLRB No. 154 fn. 1 (2005); Contract 
Flooring Systems, Inc., 344 NLRB No. 117 at 1 (2005); Meijer, Inc., 344 
NLRB No. 115 n. 7 (2005).
    \62\ See, e.g., Boeing Co., 349 NLRB No. 91 (2007); Advanced 
Architectural Metals, Inc., 347 NLRB No. 111 (2006); United States 
Postal Serv., 383 NLRB. No. 3 (2006).
    \63\ See, e.g., Kvaerner Phila. Shipyard, Inc., 347 NLRB No. 36 
(2006); Smurfit-Stone Container Corp., 344 NLRB No. 82 (2005); Aramark 
Services, Inc., 344 NLRB No. 68 (2005).
    \64\ Teamsters Local 75 (Schreiber Foods), 349 NLRB No. 14 (2007) 
(finding that union unlawfully charged objecting non-members for 
organizing expenses, where union failed to prove that organizing within 
same industry leads to increased union wage rates); Randell Warehouse, 
Inc., 347 NLRB No. 56 (2006) (reversing Clinton Board precedent and 
finding that union's videotaping of campaign-literature distribution 
was objectionable); Harborside Healthcare, Inc., 343 NLRB 906 (2004) 
(reversing precedent and liberalizing standard for finding pro-union 
supervisory conduct objectionable in context of representation 
elections). See also Correctional Medical Services, Inc., 349 NLRB No. 
111 (2007) (upholding discharge of unrepresented employees who picketed 
health-care employer, based on union's failure to provide statutorily-
required advance notice).
    \65\ See Toering Electric Co., 351 NLRB No. 18 (2007) (requiring 
General Counsel to prove that salt is genuinely interested in 
employment with employer, to establish violation in hiring-
discrimination case); Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 
(2007) (reversing judicially-approved precedent and requiring General 
Counsel to establish duration of remedial period for salts).
    \66\ Zurn/N.E.P.C.O., 345 NLRB No. 1 (2005), petition for rev. 
denied, Northern Michigan Bldg. & Const. Trades Council v. NLRB, 2007 
WL 1805667 (6th Cir. June 20, 2007).
    \67\ Nott Co., 345 NLRB No. 23 (2005) (``[A]lthough industrial 
stability is an important policy goal, it can be trumped by the 
statutory policy of employee free choice. That policy is expressly in 
the Act, and indeed lies at the heart of the Act.''). For illustration 
of the consequences of this orientation, see Dana Corp, supra; Shaw's 
Supermarkets, Inc., 350 NLRB No. 55 (2007)(permitting employer to 
withdraw recognition from union after third year of five-year 
agreement, even though petition for election could not be filed); 
Badlands Golf Course, 350 NLRB No. 28 (2007) (permitting employer to 
withdraw recognition from union less than three weeks after minimum 
six-month period of insulated bargaining, following earlier unlawful 
withdrawal of recognition).
                                 ______
                                 
    [Additional submission of Member Liebman follows:]

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    Chairman Andrews. Thank you, Member Liebman, very much.
    I will yield for questions to the chairman of the Education 
and Labor Committee, Mr. Miller.
    Mr. Miller. Thank you very much.
    And thank you both, Chairman Battista, for your testimony 
and Ms. Liebman, for your testimony.
    Ms. Liebman, I would like to go--in your formal 
presentation--excuse me, your written presentation to the 
committee on page 10, you sort of compare and contrast the Dana 
decision and the Wurtland decision. And I wondered if you might 
elaborate on that because I think it is--our deliberations in 
the Congress with respect to the Employee Free Choice Act where 
it was suggested by the opponents of the act throughout much of 
the debate that the signatures of workers were worth nothing, 
that they just weren't valid, they weren't worth it, that this 
was not a legitimate process, as you point out.
    At least as I read your testimony, you suggest that the 
board has suggested, at least, contradictory positions in those 
two cases or, in fact, even maybe a double standard. And I just 
wonder if I am--I don't want to put words in your mouth, but if 
you would elaborate on that.
    Ms. Liebman. Yes, I would be happy to. Thank you. These two 
decisions, as you have mentioned, issued the same day. And they 
are somewhat surprising when you read them back to back because 
the Dana case, of course, involves the right of employers and 
unions to enter into voluntary recognition agreements providing 
for recognition of the union upon a showing of majority 
supporting, usually signatures on authorization cards without 
the necessity to hold a board election.
    These are popular because unions have become disenchanted 
with the election machinery because of the delays in the 
process which allows virulent anti-union campaigns, in some 
cases, allows employer coercion. And if the union ultimately 
would win the election, it starts off the relationship in an 
adversarial or antagonistic way. So these arrangements have 
become very popular.
    The Wurtland decision was in some ways the flip-side case. 
It was an employer who withdrew recognition from a union. Its 
employees had signed a petition saying that they wanted a vote 
to--I think the words were--get rid of the--we, the employees, 
wish for a vote to remove the union.
    And the board majority said that that language was 
unambiguous because, well, because they said it was 
unambiguous, even though the language clearly is we wish for a 
vote. I think there are board cases which would say that if 
employees signed cards that said we want a vote to select union 
representation, that the board would not issue what is called a 
Gissel bargaining order based on language of that sort because 
the language clearly indicates that the employees would like a 
vote.
    Another apparent inconsistency between these is that in the 
Dana case, the board minimized the delays inherent in the 
election process. Whereas in the Wurtland case, part of the 
explanation for allowing the employer to do this unilaterally 
was because of the delays in the election process.
    This is compounded by a decision issued in August, the 
Shaw's case, in which similarly the board allowed an employer 
to withdraw recognition, even though there was a 
decertification petition pending with the board and even though 
the employer itself was not entitled to file a petition at that 
time because it had signed onto a 5-year agreement. But the 
explanation was we are going to allow this withdrawal of 
recognition so that employees do not have to endure union 
representation if they don't want it.
    And again, another double standard is that no similar 
concern has been shown for employees who have to wait perhaps 
years to enjoy union representation when they voted for it, no 
similar concern that they have to endure non-representation. So 
I would say that there certainly appears to be a double 
standard.
    The other possible explanation is that the board has pretty 
expressly stated for the first time in the board's history that 
the freedom of choice--and in this case, that would be the 
freedom to reject union representation--has paramount value in 
this statute over the goal of promoting collective bargaining. 
That is the first time that the NLRB has ever stated that 
ranking of statutory policies in that way.
    Mr. Miller. Chairman Battista, do you want to make a quick 
comment? I don't have much time left.
    Mr. Battista. Yes, I would, as a matter of fact. I don't 
see the Wurtland case and the Dana case as being opposites. In 
the Wurtland case, it was cards or a petition that triggered 
the employer's action to withdraw recognition from the union.
    In the Dana case, it was the cards that the union presented 
to the employer that triggered the recognition initially. So 
cards played a role in both cases.
    In the Dana case, the employer said--or the board said to 
the employer and to the union we are going to have a notice 
posted so employees know they have a right to a secret ballot 
election if they wish it. And it is only for 45 days. So there 
is a possibility of a secret ballot election changing that 
result or confirming it.
    In the Wurtland case, if the union after the employer 
withdrew recognition wished to file a petition for 
certification and it was supported by the appropriate number of 
cards, we would conduct an election. And that election would 
determine whether the union is certified, recertified or not. 
So in both cases, there is a role for cards and for card check. 
And in both cases, there is a role that is played by secret 
ballot elections.
    Mr. Miller. I think Ms. Liebman took the question with what 
the employees were, in fact, asking for in the Wurtland case 
and also, I think, the question of whether there is any legal 
requirement for that posting at all.
    Mr. Battista. In the Wurtland case, the employees came to 
the employer and presented them with a petition saying that we 
want to remove local 1192, I think it is, as our collective 
bargaining representative.
    Mr. Miller. We want to vote to remove it.
    Mr. Battista. Now, if the employer is faced with evidence 
that a majority of the employees do not wish to be represented 
by the union, the employer has an obligation, I think, to act. 
He can act in one of two ways under Levitts. He can file for an 
R.M. petition for an election. Or he can withdraw recognition.
    It wasn't that the language was unambiguous. I don't 
believe we said the language was unambiguous. But we had to 
make a decision what the better interpretation of the language 
of the petition was. And we found the better interpretation of 
the language was that it didn't want a vote, but they wanted to 
remove the union.
    Mr. Miller. We will come back to this. I don't want to--we 
have got a lot of members here.
    Chairman Andrews. Thank you, Mr. Chairman.
    The chair recognizes the ranking member of the 
subcommittee, Mr. Kline, for questions.
    Mr. Kline. Thank you, Mr. Chairman.
    I thank the witnesses for being with us today.
    Chairman Battista, I have several questions and not enough 
time, so I am going to move fairly quickly. We know that 
polling shows that the vast majority of Americans want to 
protect the secret ballot.
    In the landmark case of Gissel Packing, the Supreme Court 
noted that a secret ballot election is the ``most satisfactory, 
indeed, the preferred method of ascertaining whether a union 
has majority support,'' and that card checks are ``admittedly 
inferior to the election process.'' Let us just get on the 
record. Do you share that view, and why?
    Mr. Battista. Congressman, I would like to stay away from a 
question that deals with whether or not the act should be 
amended. But I would say to you I don't disagree with our 
Supreme Court. And I am a firm believer that the secret ballot 
election works well at the board.
    Mr. Kline. Okay. Thank you.
    Member Liebman talked about delays in elections through the 
process. I wondered if you would like to address that and tell 
us how the performance of the board has been under your 
chairmanship, what kind of delays were experienced and put it 
in an historical context.
    Mr. Battista. I think we have done well in the past 5 
years. As I said in my opening statement, we have reduced the 
backlog from 621 cases to 207 cases. We have taken the amount 
of time to see cases at the board and reduced it from 809 
median days to 181 median days. We have reduced the amount of 
time that----
    Mr. Kline. Excuse me, that was 809 to 101?
    Mr. Battista. One hundred and eighty-one.
    Mr. Kline. One hundred and eighty-one. Thank you.
    Mr. Battista. One hundred and eighty-one median days. And 
we have taken the median days of representation cases at the 
board and reduced it from 409 days to 88 days. And so, I think 
we have done a good job in making the agency more productive 
and more efficient.
    Mr. Kline. Thank you. We have had some discussion already 
about the board under your chairmanship reversing precedent. 
And I would like to get into that for just a minute.
    It is my understanding that in a number of cases, the board 
under your chairmanship overturned precedent, but it did so 
only to return to long-established board law. In other words, 
to restore longstanding precedent that the Clinton era board 
had abandoned. Do you view that as the case? Could you comment 
on that?
    Mr. Battista. I think that is a fairly accurate reflection 
of what we have done. We have overturned precedent on 21 
occasions. The Clinton board had between 1994 and 2002--I 
believe it was Roger King had the statistics that they 
overturned precedent on 61 occasions, and it was 1,100 years of 
precedent that they overturned. I think on our 21 occasions it 
is about 348 years.
    And the main one precedent we overturned was a precedent 
that was established by the Clinton board. It was precedent 
that we felt was not appropriately overturned in the first 
place, and we returned to what was well-recognized precedent.
    Mr. Kline. Okay. And then finally, there is a lot of 
discussion about the act itself. And clearly, you have been 
accused, even here this morning, in saying that the National 
Labor Relations Board is broken and the board is not 
effectively doing its job and its role with the National Labor 
Relations Act.
    Do you agree with that? I mean, clearly, you don't. I would 
like to give you the opportunity to say something about that.
    Mr. Battista. I mean, I disagree with that. I think the 
agency is really an example for most federal agencies. You look 
at what we do. We get 22,000, 23,000 unfair labor practices a 
year. And two-thirds of them are disposed of within 2 months. 
The remaining third, 90 percent of those are resolved, settled 
before 98 days, 98 median days, I believe it is.
    And so, the vast bulk of our unfair labor practice cases 
are handled, either dismissed or settled, very early on in the 
game. The same is true for representation elections. Our 
elections are conducted in a median time of 39 days.
    I think it is 90 percent of our elections are held in an 
actual time of 59 days from the filing of the petition. And the 
majority--I think it is 70 or 80 percent--of our representation 
cases are closed within a year. So I think we are doing a good 
job.
    Mr. Kline. Thank you, Mr. Chairman. I yield back.
    Chairman Andrews. I thank my friend.
    The chair yields for questioning to Senator Kennedy, 
Chairman Kennedy. Excuse me.
    Senator Kennedy. Thank you, Mr. Chairman.
    I would like to ask Ms. Liebman. I think most of us 
understand that the National Labor Relations Board was set up 
to further collective bargaining. We have heard that the 
statute actually provides ``to encourage the practice and 
procedure of collective bargaining by protecting the exercise 
by workers of full freedom of association, self-organization, 
designation.''
    And then there have been comments here this morning, well, 
it has been modified by other actions, Taft-Hartley, other 
actions by the Congress. I don't know in those actions by the 
Congress where that concept has been repealed. It still stands, 
as far as I understand the nature of the law.
    And I am interested in your view about this balance. That 
is really the heart of this issue in question. What is the 
balance?
    I think you referred earlier to your own view that workers 
doubt whether that balance is real today. And therefore, people 
have been discouraged from using what was established to be 
used to be effective to strengthen our economy, to be fair to 
workers in this country. And I want to give you an opportunity 
just to comment about the imbalance or the balance between 
employer and workers' rights.
    Well, before talking about their rights, if you would talk 
about the balance to engage in union activity, the right to 
refrain from union activity subject to the majority will. What 
could you tell us from your own experience on the board and 
your background and obviously as someone who is not only a 
participant in this, but also someone who brings a great wealth 
of knowledge and experience and understanding the role of the 
NLRB?
    Ms. Liebman. Thank you, Senator Kennedy. I guess you could 
call me a strict constructionist or maybe even an originalist 
about this law. I believe that the majority's apparent 
conviction that Taft-Hartley somehow diminished the primacy of 
collective bargaining as a national policy goal is just wrong. 
I would call it revisionist history.
    The Taft-Hartley amendment did not change the basic purpose 
of the law. The law's overriding aim was and still is to make 
it possible for workers to freely choose collective 
representation and to promote collective bargaining.
    We have a federal labor law in the first place because 
Congress saw the need to help employees win union 
representation over the opposition of employers and thereby, to 
equalize bargaining power between labor and capitol. Taft-
Hartley did add provisions to protect employees from union 
coercion as well. And, of course, it added the language to 
Section 7 of the act giving employees the right to refrain from 
union and other concerted activity.
    So employees are free under this statute to choose freely 
to decline unionization, to reject the union that has 
represented them, to deal with their employers individually and 
to cede to their employers all effective control over the 
workplace. They have that right.
    But the fact remains that the primary goal of this statute 
is to promote collective bargaining. Free choice exists, which 
means employee free choice and not the right of employers to 
choose for them, a case that Wurtland sort of highlights.
    So as you say, Section 1 of the Wagner Act still remains in 
place making it the policy of this nation to promote collective 
bargaining. And Taft-Hartley itself in Section 201 stated, and 
I am going to read this, ``It is the policy of the United 
States that the advancement of the general welfare, health, and 
safety of the nation can most satisfactorily be secured by the 
settlement of issues between employers and employees through 
the processes of conference and collective bargaining.'' That 
is in Taft-Hartley itself.
    And finally, the Supreme Court in 1966 put it this way. 
``The object of the National Labor Relations Act is industrial 
peace and stability fostered by collective bargaining 
agreements providing for the orderly resolution of labor 
disputes between workers and employees.'' The board has 
consistently held up until this one that the primary purpose of 
this act is to promote collective bargaining freely chosen.
    There are some cases where there is tension between these 
goals, and the board has always sought to maintain an equal 
balance. But now it seems that the importance of collective 
bargaining has receded as a national policy goal. In some ways, 
it seems that labor law has been turned inside out.
    Senator Kennedy. Yes. I think I see the red light has gone 
on.
    Senator Murray planned to represent our committee. She has 
been detained. She has asked me to put her statement and also 
an excellent letter signed by 57 law professors in the record.
    Chairman Andrews. Without objection.
    [The information follows:]

 Prepared Statement of Senator Patty Murray, Chairman, Subcommittee on 
                    Employment and Workplace Safety

    Good morning. I'm pleased to join Chairman Andrews and my 
colleagues from the Senate and House Labor Subcommittees today.
    We're here to talk about an issue that is critical to our 
families--protecting a worker's right to organize.
    I know personally what a union job means. My brother is a 
firefighter, and it has meant a middle class life for him and his 
family.
    When Congress passed the National Labor Relations Act more than 70 
years ago, it recognized that a fair labor market can exist only if 
employers and employees both have a respected voice in the system.
    The purpose of the law was to ensure a balanced approach to labor-
management relations that hadn't existed up to that point.
    But this President has stacked the deck against workers on the 
National Labor Relations Board.
    And now we've seen that balance tipped so far in favor of employers 
that the Board has lost its credibility with workers and with many 
Members of Congress.
The Administration has Failed to Protect Workers' Rights
    At a time when corporate executives enjoy:
     Multi-million-dollar salaries,
     Golden parachutes * * *
     And so many other excesses,
    It doesn't seem too much to ask to require fair wages, and safe 
working conditions for their employees.
    Yet the Administration and its political appointees have repeatedly 
failed to protect workers on the job, while also restricting their 
ability to collect overtime.
    This Administration has worked:
     To undermine the 40-hour work-week,
     Reduced funding for job training,
     And vigorously opposed an increase in the minimum wage for 
years.
    I'm especially concerned that the NLRB now has a pattern of issuing 
decisions that undermine the ability of workers to collectively 
bargain--blatantly ignoring Congress' intent under the law.
    We're here today because in September, that Board issued a large 
number of decisions that have received loud criticism.
    Our witnesses will discuss these and other questionable Board 
actions in more depth this morning.
The NLRB Decisions are More of the Same
    Combined, the Board's decisions attempt to dismantle policies the 
Administration and its supporters don't like by:
     Allowing a minority of employees to undo the will of the 
majority;
     Sending mixed messages about the value of Board elections;
     Weakening already inadequate remedies for bad faith 
employers;
     And changing the rules of the game for workers who try to 
exercise their right to organize in good faith.
    I find these decisions troubling because they simply don't make 
sense.
    They seem to be designed more to carry out the Administration's 
agenda rather than to follow the intent of the law.
    Of course, Chairman Battista thinks otherwise. But his approach 
flies in the face of what scholars from around the country have said.
    In response to the Board's decisions, more than 50 distinguished 
labor law professors wrote a letter to Congress, criticizing its 
reasoning under the National Labor Relations Act.
    I ask unanimous consent that this letter be included in the hearing 
record. In their letter, these professors state that: ``the board has 
regularly denied or impaired the very statutory rights it is charged 
with protecting--the rights of employees to join and from unions and to 
engage in collective bargaining.''
Protecting Workers' Rights Should be a Priority for the NLRB
    As Chair of the Senate Employment and Workplace Safety 
Subcommittee, protecting workers' rights is a critical priority for me.
    And it should be a priority for those government agencies charged 
with promoting the well-being of workers and their families.
    Unfortunately, it seems that many Administration appointees have 
decided that following the intent of the law isn't important.
    I can't tell you how many times I've had to remind the political 
appointees at the Labor Department that their mission is to stand up 
for workers--not tip the scale even further toward the interests of 
powerful employers.
    Maybe the NLRB needs a reminder, too.
    I understand that the Board has a tough job. Finding the right 
balance between employers and workers can be challenging.
    But that just doesn't seem to be the issue here.
Voters Called for Change
    In last year's election, America's voters called for change. And 
the Democratic-controlled Congress has responded by sending the 
Administration a clear message:
     That the working families of our country are priority 
number one.
    Still, this Administration has continued down the same old path.
    I hope we will soon have a new Administration and a new Board that 
are genuinely committed to protecting workers' rights and putting 
working families first.
    But today, I look forward to hearing from our witnesses about the 
impact the Board's decisions are having on workers' rights
    And I look forward to hearing how they think this Board is 
measuring up to the mission stated in its charter--which is:
     To encourage collective bargaining by protecting workers' 
rights to negotiate the terms and conditions of their employment.
    Thank you.
                                 ______
                                 
                                                 December 12, 2007.
    Dear Members of Congress: Recent decisions by the National Labor 
Relations Board reflect an ominous new direction for American labor 
law. By overturning precedent and establishing new rules, often going 
beyond what the parties have briefed or requested, the Board has 
regularly denied or impaired the very statutory rights it is charged 
with protecting--the rights of employees to join and form unions and to 
engage in collective bargaining. The Board's persistent efforts to 
undermine NLRA protections also have dramatized the need for Congress 
to enact serious labor law reform after nearly half a century with no 
substantial legislative change.
    Since it was constituted in late 2002, the current Labor Board has 
mounted an aggressive campaign to curtail worker rights under the 
statute. In periodic waves of closely divided, highly partisan 
decisions, the current Board majority has effectively removed whole 
categories of workers from the Act's coverage;\1\ stripped away 
protections promised by the Act;\2\ and further diluted the strength of 
already inadequate remedies.\3\ The Board's decisions are remarkable 
for their anti-union bias, and in that regard remarkably out of touch 
with the desires of American workers. A recent Hart Research poll shows 
that as many as 60 million workers want a union but do not have one.\4\
    A key reason why employees are thwarted in their desire for a union 
is the Board's inability or unwillingness to protect genuine employee 
free choice. The NLRB-supervised elections process too often invites 
employer coercion or interference, and encourages employers to create 
delays that frustrate and discourage workers. The current Board has 
given employers even greater leeway during organizing campaigns--to 
threaten and intimidate workers for union activities,\5\ and to impose 
onerous and ambiguous workplace rules that deter union support and 
chill workers' exercise of their rights.\6\
    As a result of the failure of the NLRA's representation process to 
guarantee free and fair elections, workers and unions have turned to 
other organizing strategies. One important approach involves securing 
voluntary recognition through majority sign-up, when a majority of 
workers sign cards indicating their preference for a particular union 
and the employer decides not to contest the card majority. This form of 
organizing was recognized by Congress in the Act itself and has been 
endorsed by the Board for decades, as well as by the Supreme Court.\7\
    In response to the increasing reliance on majority signup by 
workers who want a union, the current Board majority has erected 
substantial new hurdles to voluntary recognition. More than 70 years 
ago, section 9 of the Act established that a union will be recognized 
as exclusive representative if ``designated or selected'' by a majority 
of employees. But the Board has now made clear that it will not protect 
new bargaining relationships created through majority signup and 
voluntary recognition until a minority of workers who oppose the union 
have a second chance to defeat the majority's choice of union 
representation.\8\ Indeed, the Board now insists that employers who 
voluntarily recognize their workers' free and uncoerced majority choice 
for a union must post an NLRB notice telling workers how 30% of them 
may force the union to demonstrate majority support a second time.\9\ 
In stark contrast, the Board does not require any employer-posted 
notice that explains to workers how to exercise their rights to form, 
join, or organize a union for the purpose of engaging in collective 
bargaining.
    In addition to its decisions restricting workers' rights during an 
organizing campaign and burdening union efforts to achieve voluntary 
recognition, this Board has repeatedly undermined remedies for employer 
misconduct. Although the NLRA's remedial scheme has long been 
criticized as inadequate, the current Board majority has rebuffed 
various initiatives from past Boards aimed at enhancing compensation 
for victimized employees and overcoming the effects of unlawful 
employer activity. This Board has rejected remedial bargaining orders, 
broad cease-and-desist orders, and so-called ``special'' organizing 
remedies;\10\ absent such relief, the penalty for serious employer 
wrongdoing is too often simply to post a notice and promise not to do 
it again. These notices do far too little to dispel the intimidation 
and fear created by an aggressive, illegal anti-union campaign, and far 
too little to discourage employer illegality in the first place.
    Finally, the current Board has made it more difficult for workers 
to recover even the modest backpay remedy to which the law entitles 
them when they are fired, laid off or denied employment because of 
their union support. Once such a violation is found, the burden has 
always fallen on the adjudicated lawbreaker to present information that 
would constitute grounds to reduce the backpay owed an illegally fired 
worker. This Board, however, has turned the remedial process on its 
head. Recent decisions have required employee victims to produce 
evidence that they searched for particular new jobs\11\ even while 
engaged in picketing to get their old jobs back,\12\ or that they would 
have worked for the employer for the entire backpay period following 
their having been illegally denied a job.\13\ Board resources must now 
be directed away from investigating and prosecuting labor law 
violations and devoted instead to reducing the backpay liability of the 
lawbreaker. The Board's new direction further weakens remedies and 
makes it less expensive to violate workers' rights.
    The Congresses that enacted and amended the NLRA from 1935 to 1959 
viewed collective bargaining as an essential way to maintain and expand 
America's middle class. This Board's decisions, significantly eroding 
workers' ability to gain the right to bargain with their employer for a 
better future, highlight the need for legislative reform and for a 
return by the current Board to its statutory mandate. We call upon 
Congress to address both of these urgent needs.
            Sincerely,

James J. Brudney, The Ohio State University Moritz College of Law.

Cynthia Estlund, New York University School of Law.

James Atleson, University at Buffalo Law School, the State University 
        of New York.

Dianne Avery, University at Buffalo Law School, the State University of 
        New York.

Mark Barenberg, Columbia University School of Law.

Carrie Griffin Basas, Penn State-Dickinson School of Law.

Robert M. Bastress, Jr., West Virginia University College of Law.

Susan Bisom-Rapp, Thomas Jefferson School of Law.

Christopher David Ruiz Cameron, Southwestern Law School.

Susan Carle, Washington College of Law.

Kenneth M. Casebeer, University of Miami Law School.

Carin Ann Clauss, University of Wisconsin Law School.

Stephen Clark, Albany Law School.

Lance Compa, Cornell ILR School.

Laura J. Cooper, University of Minnesota Law School.

Marion Crain, University of North Carolina at Chapel Hill.

Charles B. Craver, George Washington University Law School.

Ellen Dannin, Pennsylvania State University, Dickinson School of Law.

Henry H. Drummonds, Lewis and Clark/Northwestern School of Law.

Barbara J. Fick, University of Notre Dame Law School.

Richard Michael Fischl, University of Connecticut School of Law.

Catherine Fisk, Duke University.

William E. Forbath, University of Texas at Austin.

Ruben J. Garcia, California Western School of Law.

Julius Getman, University of Texas School of Law.

Professor Michael J. Goldberg, Widener University School of Law.

Jennifer Gordon, Fordham University School of Law.

Robert A. Gorman, University of Pennsylvania Law School.

Michael Gottesman, Georgetown University Law Center.

Joseph R. Grodin, U.C. Hastings College of the Law.

Seth Harris, New York Law School.

Michael Hayes, University of Baltimore School of Law.

Dorothy Hill, Albany Law School.

Ann C. Hodges, University of Richmond School of Law.

Karl Klare, Northeastern University School of Law.

Thomas C. Kohler, Boston College Law School.

Howard Lesnick, University of Pennsylvania Law School.

Ariana Levinson, Louis D. Brandeis School of Law, University of 
        Louisville.

Anne Marie Lofaso, West Virginia University College of Law.

Deborah Malamud, New York University School of Law.

Carlin Meyer, New York Law School.

Maria Ontiveros, University of San Francisco School of Law.

James G. Pope, Rutgers University School of Law--Newark.

Rosemary Queenan, Albany Law School.

Joel Rogers, University of Wisconsin Law School.

Mitchell H. Rubinstein, St. John's Law School and New York Law School.

George Schatzki, Sandra Day O'Connor College of Law at ASU.

Joseph E. Slater, University of Toledo College of Law.

Theodore J. St. Antoine, University of Michigan Law School.

Katherine Stone, UCLA School of Law.

Clyde Summers, University of Pennsylvania Law School.

Joan Vogel, Vermont Law School.

Paul Weiler, Harvard Law School.

Marley S. Weiss, University of Maryland School of Law.

Martha S. West, University of California Davis School of Law.

Steven L. Willborn, University of Nebraska College of Law.

Donna Young, Albany Law School.
                                endnotes
    \1\ See e.g. Oakwood Healthcare, Inc., 348 NLRB No.37 (2006); Brown 
University, 342 NLRB No.42 (2004); Oakwood Care Center, 343 NLRB No.76 
(2004); Brevard Achievement Center, 342 NLRB No.101 (2004).
    \2\ See e.g. Delta Brands, Inc., 344 NLRB No.10 (2005); Waters of 
Orchard Park, 341 NLRB No.93 (2004); Holling Press, Inc., 343 NLRB 
No.45 (2004); IBM Corp, 341 NLRB No.148 (2004).
    \3\ See e.g. Albertson's, Inc., 351 NLRB No.21 (2007); Desert 
Toyota, 346 NLRB No.3 (2005); First Legal Support Services, 342 NLRB 
No.29 (2004).
    \4\ See Richard B. Freeman, Do Workers Still Want Unions? More Than 
Ever, Economic Policy Institute (Washington D.C. 2007). See also 
Upfront, Business Week, Sept. 16, 2002, at 6.
    \5\ See e.g. Airport 2000 Concessions, LLC, 346 NLRB No.86 (2006); 
Alladin Gaming, 345 NLRB No.41 (2005); Crown Bolt, 343 NLRB 776 (2004).
    \6\ See e.g. Guardsmark, LLC, 344 NLRB No.97 (2005), enf't denied, 
475 F.3d 369, 378-80 (DC Cir. 2007); Palms Hotel and Casino, 344 NLRB 
No.159 (2005); Lutheran Heritage Village-Livonia, 343 NLRB No.75 (2004)
    \7\ See e.g. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); 
Franks Bros. v. NLRB, 321 U.S. 702 (1944); NLRB v. Bradford Dyeing 
Ass'n, 310 U.S. 318 (1940).
    \8\ Dana Corp, 351 NLRB No.28 (2007).
    \9\ Id.
    \10\ See cases cited at note 3 above; see also Intermet 
Stevensville, 350 NLRB No.94 (2007); Abramson, LLC, 345 NLRB No.8 
(2005); The Register Guard, 344 NLRB No.150 (2005).
    \11\ See St. George Warehouse, 351 NLRB No.42 (2007)
    \12\ See The Grosvenor Resort, 350 NLRB No.86 (2007)
    \13\ See Oil Capitol Sheet Metal, Inc., 349 NLRB No.118 (2007). See 
also Toering Electric Co., 351 NLRB No.18 (2007).
                                 ______
                                 
    Senator Kennedy. Mr. Chairman, I hope that--I guess our 
time will be up--we will have an opportunity to talk to this 
panel a little bit about the nature of the penalties. But we 
will come back to that. My time has run out on this now. But we 
will come back to that, I guess.
    Chairman Andrews. I am sure that we can. Let me make a 
suggestion. The House has three votes. The members of the House 
can leave.
    We are going to continue the hearing with Senator Isakson. 
And, frankly, during the absence of the House members, if 
Senator Kennedy or Isakson would like more questions, we will 
come back to you, just to be fair.
    So, Senator Isakson, you are recognized.
    Senator Isakson. Thank you, Mr. Chairman.
    I have two questions really. The questions apply to both of 
you. In the new rule with regard to the 45-day open period, it 
seems to me that if a card check system is an accurate 
reflection of the will to organize, then a timely election 
would verify that. And it seemed like the rule change allowed a 
timely verification of the card check. Am I correct in that?
    Mr. Battista. I think you are, Senator. The thing that we 
were concerned about, the majority was concerned about in Dana-
Metaldyne was that where you have an agreement between the 
employer and the union initially on a neutrality card check 
arrangement, that there is the tendency to believe that this is 
what the employer and the union want. And what we have got to 
focus on is what the employees want.
    Do they want this union or not? We did not do away with the 
recognition bar. We just said that you have got a 45-day period 
to, if you don't want the union, get 30 percent of your 
colleagues to sign a petition. We will conduct an election to 
determine whether the union stays in place or not.
    If you are happy with the union, do nothing. And after 45 
days, that will be a factor of life.
    It is a little like what the priest did to me when I got 
married 20 some years ago. The priest said is there anyone in 
this church that knows why this marriage shouldn't go forward. 
If, now speak, or forever hold their peace. And maybe that is 
an analogy that can be used to discuss the way we handled this 
marriage the union and the employer in the Dana-Metaldyne case.
    Senator Isakson. Member Liebman?
    Ms. Liebman. The difference is that after your wedding was 
concluded, you weren't given a 45-day window period to get out. 
And I think that is a difference. It is conceivable certainly 
that after 45 days if there is an election held that it will 
confirm the results. But there are several things going on 
here.
    First of all, let me point out that the Dana decision did 
overrule precedent that was not a decision of the Clinton 
board. It was a decision that went back until about 1960.
    Secondly, what the Dana decision does is quite 
unprecedented. It requires the posting of a notice in the 
workplace telling employees that they have a right to get rid 
of the union that a majority of them have just signed cards 
for. That is completely unprecedented. We don't have similar 
kinds of notice postings under our current procedures.
    It is also quite unusual and quite contrary to the 
principle of majority--exclusive majority representation in the 
statute to allow a minority of employees--namely, 30 percent--
to undo what the majority has just expressed a preference for. 
That just doesn't happen under this statute.
    You can't change your mind right after an election, even 
though some people might change their mind. You can't get out 
of it as soon as the election has been conducted.
    And so, even though some cases have said that the election 
is the preferred means, that is not in the statute. There is no 
statutory requirement for an election. And I would add just as 
a final point that a case like Wurtland or Shaw's reflects 
again the double standard about this reverence for elections. 
The same reverence for elections has not been shown in the 
situation where employers seek to come out of bargaining 
relationships, as the majority has indicated, for getting into 
a relationship.
    Senator Isakson. Thank you. I have one little question, if 
it is all right, Senator Kennedy.
    I am told in the MGM case that MGM voluntarily recognized a 
card system and then after the recognition, the 1-year ban 
period takes place, but 1,900 workers petitioned for an 
election. And NLRB denied those 1,900 workers the right to that 
election under the 1-year ban. Am I correct?
    Ms. Liebman. We didn't actually call it a 1-year ban. We 
called it a voluntary recognition ban. But it essentially came 
to about 1 year. That is correct. And that is consistent with 
the regular recognition bars that have been in place for years 
and the assessment of all the circumstances, the progress of 
the negotiations.
    In MGM Grand, the parties were using a pretty sophisticated 
method of negotiating the contract, which the board majority at 
that time felt allowed for a little greater time to give the 
parties a chance to work out their differences. That is the 
concept really behind these bars, whether it is a contract bar 
or certification bar or voluntary recognition bar, to give the 
union a chance to negotiate an agreement with an employer, 
particularly a first contract, which is much more difficult to 
negotiate than successor agreements. Give them a chance.
    Employees may get frustrated during the bargaining process 
and may sort of become skeptical. And so, at any one point of 
time they might say this isn't worth it. But that is not the 
concept of the law. And these principles have been endorsed by 
the Supreme Court. These rules are not based on any certainty 
that the union still retains the majority, but that the process 
should be given a chance to work for a reasonable period of 
time.
    Senator Isakson. Well, my only comment is it made sense to 
me that you would change a rule if you actually had a 
circumstance under the old rule where 60 percent of the 
employees wanted an election and couldn't get one.
    But again, if I am correct in the information I have been 
given, if 60 percent want it, I am thinking the decision NLRB 
made under the old rule in the MGM case, this would have at 
least provided the majority with a timely election to see if it 
reflected the views. That would be my only point.
    Ms. Liebman. Yes, could I just say in response to that that 
these rules do not exclude the right of employees to have an 
election to, in essence, decertify the union? It just postpones 
it for a reasonable period of time.
    There are reasonable intervals during which we will not 
conduct elections so the process can work. And I could point 
out also that if the majority had been unhappy with a case like 
MGM, it could have dealt with that situation under the existing 
rules by reaching a different conclusion as to whether a 
reasonable time for bargaining had elapsed.
    But instead it completely gutted the entire principles of 
law about this reasonable period for bargaining, an insulated 
period during which we will not allow challenges to the union's 
majority status. What they did was a much more radical step. 
Whereas they could have dealt with it just within the existing 
case law.
    Senator Isakson. Thank you, Mr. Chairman.
    Senator Kennedy [presiding]. Congressman Holt?
    Mr. Holt. Thank you, Mr. Chairman. I must hurry to the 
floor, so let me be very brief.
    I am not a lawyer, not a labor lawyer, but I frequently use 
the phrase that workers have the right to organize.
    Chairman Battista, you said the board is not tilted toward 
labor unions and not toward companies, but rather toward the 
worker. But as I look at the recent decisions about inside 
organizing or salting or the Dana decision or the St. George 
Warehouse where an employee has to prove that he is seeking 
another job or the BE&K Construction that allows employers to 
punish employees for exercising their rights, it really sounds 
to me like this is all for anti-union corporations.
    And so, my quick question is should I strike the phrase 
right to organize from my talks, from my vocabulary?
    Mr. Battista. I certainly don't think so, Mr. Holt. And I 
certainly protect and encourage employees to organize if that 
is what they wish to do.
    Mr. Holt. Well----
    Mr. Battista. And our decisions are the same. I would be 
more than happy to discuss each one of those cases with you. 
But----
    Mr. Holt. I would like to pursue that. I must go vote now, 
but it certainly is troubling. And I don't know enough about 
the role of precedent in NLRB. But I hope that these are not 
decade-long precedents that have been established. This is very 
troubling.
    Senator Kennedy. Thank you very much.
    Ms. Liebman, let me ask you this question. Isn't it true 
that early in the act's history, the card check on majority 
sign up was the law and then the board changed the law to 
require elections if the employer wouldn't agree to accept the 
cards? Now isn't it true the board has even further undermined 
the majority signup process?
    Ms. Liebman. Yes, I think that is correct. There was a 
proposed amendment during the Taft-Hartley process which would 
have required a board election in order for a union to become 
the representative. That was not enacted by the Congress. And 
so, it is true that--and especially now it is long construed by 
the board----
    Senator Kennedy. So describe then the state of the law.
    Ms. Liebman. The state of the law is that voluntary 
recognition is legal, is certainly legal. One court has said it 
is a favored element of national labor policy. The board, I 
think, has made clear most recently that in its view it is not 
a favored element of national labor policy.
    And it has clearly constructed obstacles to voluntary 
recognition, clearly removing any incentive for employers to 
agree to voluntary recognition processes. But the law does not 
require an election in order for the union to become the 
majority recognized representative.
    Senator Kennedy. We hear a good deal about the dangers of 
going back to the old days. What were the conditions in the old 
days--did we have the massive corruption of the whole process 
and the system? Was this system abused?
    Ms. Liebman. The election system or the voluntary 
recognition system?
    Senator Kennedy. Both.
    Ms. Liebman. No, I am not aware of abuses of the election 
process. But what clearly has happened is that unions have 
become disillusioned with the election process. And I would add 
here that whether they are right or wrong almost doesn't make a 
difference because it is the perception that really matters.
    Senator Kennedy. Okay.
    Ms. Liebman. If their perception is the process doesn't 
work, then it doesn't work.
    Senator Kennedy. Okay.
    Ms. Liebman. We have got a problem. And clearly, what 
happens is the elections do not occur in quick order. In Canada 
in some provinces, for example, the elections are within 7 
days. We don't have anything like that.
    And during this period, employers are permitted to campaign 
against the union, and employees can become intimidated and 
lose interest over the course of time. And then there are the 
delays of the legal process while various issues can be 
challenged and appeal processes take place.
    And then there is the ability to challenge the process at 
the end, even if the union does win and is certified. The 
employer can refuse to bargain and further delays can occur 
while the case proceeds to the court of appeals.
    So it may not happen in every case. It may not happen in 
even half of the cases. But it certainly is not impossible for 
years to go by before the union sits down to negotiate a first 
agreement with the employer. That, I think, is an abuse of the 
system when that occurs.
    Senator Kennedy. Let me move toward the issue of penalties. 
And I would like to ask Ms. Liebman. In your testimony you 
criticized the board for creating new obstacles to back pay 
awards. And I was particularly struck by the Grosvenor Resort 
case where the board said the workers who wait more than 2 
weeks to start their job search should be penalized for their 
idleness.
    And the issue is what impact do these cases of weakening 
the remedies have on the board's ability to meaningfully 
enforce the law. We all know if you don't have an effective 
enforcement that that undermines the integrity of the law.
    We are going to hear later from Feliza Ryland, who is going 
to testify, who in 1996 went out on strike with 44 coworkers to 
protest employers' refusal to bargain in good faith. Fired 
several days later. Her discharge is the subject of the board's 
decision, in Grosvenor Resort issued in September 2007.
    And we saw that in 1998 the judge agreed that the employer 
had acted in bad faith and had illegally fired her, ordered the 
management to offer the jobs back and give back pay. She never 
got the back pay. In 2001, 5 years after the illegal firing, 
the NLRB agreed with a judge who ordered the same thing but 
never received any back pay.
    In 2002, the federal court enforced the NLRB, didn't get 
any back pay. In 2005, the judge held back pay hearings and 
ordered the Grosvenor to pay up to $10,000 in back pay, never 
got any back pay. In September 2007, the NLRB issued a decision 
reducing the back pay to $2,400 because, according to them, she 
didn't leave the picket line and get a new job fast enough.
    What is going on here? If that doesn't sound like a system 
that is broken, I don't know one that is.
    Ms. Liebman. I would agree, Mr. Chairman. This statute, of 
course, was the first of--really, the first of the workplace 
statutes to be enacted. And it has historically been considered 
to have very weak remedies. It has got the weakest remedies of 
any discrimination cause of action of all the workplace 
statutes.
    All the board is permitted to do by statute is to award 
back pay and order reinstatement. The back pay remedy itself 
has been weakened, though, because of the duty to mitigate back 
pay damages. No compensatory damages are possible under this 
statute.
    And so, in the best of circumstances what the employees get 
by way of back pay is a weak remedy. The purpose of a remedy, 
of course, is to compensate the victim of discrimination and to 
deter wrongdoers. These remedies do nothing, certainly, to 
satisfy either element of the remedial principle.
    The difficulties, of course, are compounded by the long, 
long delays that these proceedings take. So by the time a 
discriminatee actually receives back pay, it is probably fairly 
meaningless to them. In the meantime, they have had to go on 
with their lives.
    And so, a situation like Grosvenor--and I was not on that 
case. Member Walsh dissented in that case, but I find his 
dissent persuasive in that I think it is very unfortunate that 
the majority used the language that they did where they said 
that to delay--if a person delayed for 2 weeks in seeking 
interim employment, that would reward idleness.
    That is very unfortunate language. And I guess I would 
conclude by agreeing with you that I think this is a symbol of 
the fact that the system is broken or the law is quite 
ineffective.
    Senator Kennedy. Mr. Battista, when you hear that kind of 
chronology and over that period of time, what does it mean to 
you?
    Mr. Battista. I, frankly, Senator, am appalled by that kind 
of chronology. I am thankful that 98 percent of our cases are 
disposed of very quickly. And this is sort of an aberration.
    I am also proud of the fact that this year we got 48 of the 
50 oldest cases at the board out, including Grosvenor. And we 
were able to get the case out. But, you know, I am very much 
opposed to having cases languish at the NLRB. And I have done 
my best in 5 years to try to get those cases out.
    Senator Kennedy. Well, this happens. I mean, this goes on. 
This happens. I mean, what is your understanding of what the 
average back pay award is?
    Mr. Battista. I have not got an average back pay award.
    Senator Kennedy. Well, would you be surprised that it is 
$3,650?
    Mr. Battista. I don't know, Senator.
    Senator Kennedy. Well, you must know as the chairman what 
the penalties are. I mean, this is rather startling that the 
head of the board doesn't know what the penalties are.
    Mr. Battista. In terms of penalties, we have never looked 
at them as penalties. Back pay has really been viewed as a 
remedy. And in terms of----
    Senator Kennedy. Well, what the remedies are.
    Mr. Battista. In terms of the remedies, though, it is 
dependent on a number of things: how long the person has been 
off, whether or not the person has attempted to mitigate the 
losses, which the law requires. And so, I don't have any 
average number at my fingertips. I will be more than happy to 
attempt to get that for you, though, sir.
    Senator Kennedy. Well, each year 30,000 workers receive 
back pay, 30,000 workers receive back pay after the NLRB found 
that employers had violated their rights. Now I just asked you 
what the average back pay award was--$3,600. Does that sound to 
you as an adequate kind of remedy?
    Mr. Battista. It doesn't, and it sounds low. But I, again, 
don't have any--I know that this past year in 2007 we collected 
$110 million of back pay. So that number that you have sounds 
low, but I don't have the facts at my disposal to answer the 
question.
    Senator Kennedy. Well, I think it is worthwhile to 
investigate because I think that they are not even--in terms of 
trying to have the general kinds of awards to individuals, both 
in terms of back pay and for other violations of rights--
sufficient. Your characterization of those--do you think that 
they should be increased? Do you think they are doing the job?
    Do you find that your door is beaten down by employers 
saying ``don't be considering these kinds of penalties because 
we can't take it?'' Or do you think it is more of a slap on the 
wrist to these corporations, $3,600 as a cost of doing 
business? What is your experience? What are they telling you?
    Mr. Battista. Back pay is what the statute----
    Senator Kennedy. How many complaints do you have from 
corporate America about these penalties being too high?
    Mr. Battista. I don't believe I have gotten any complaints 
from corporate America.
    Senator Kennedy. Well, what does that say to you, that they 
are too high or too low? They are not complaining about it. 
What does it say to you?
    Mr. Battista. I guess I wouldn't expect to get complaints 
from either corporate America or anyone else. I don't make the 
law. I just enforce it, Senator.
    Senator Kennedy. Let me move on to the balance between the 
employer and workers' rights. I think through the history, the 
board has had to balance the employers' interest and the rights 
accorded to the workers under the law. And, for example, the 
board had to balance employers' free speech rights with 
workers' rights not to be threatened or intimidated during a 
union organizing campaign and employers' private property 
rights with workers' right to have access to union organizers.
    Ms. Liebman, do you want to just comment about the change 
and the shift as you perceive it? We have commented earlier, I 
think, about the legislation and the balance between engaging 
in union activity, and refraining from union activity. I am 
interested in your assessment, both the historical and the 
present balance in this area.
    Ms. Liebman. Yes, thank you, Mr. Chairman. As I mentioned 
in my opening statement, the recent board's decisions have 
quite frequently held that employee rights to engage in union 
or other concerted activity must yield to a variety of business 
interests. And those include employer free speech rights.
    Senator Kennedy. It is ironic when the same board also 
trumpets the primacy of employee free choice in this statute 
because employee free choice cannot really be free if employers 
are free to intimidate their workers in connection with their 
selection of a representative or in connection with their 
engaging in concerted activity. And more and more this board 
has said that employer free speech rights trump the statutory 
rights and allow employers to engage in conduct and to make 
statements to engage in communications that under previous law 
clearly would have been considered unlawful.
    They have done this not by reversing precedent, but 
essentially just ignoring or sidestepping longstanding 
precedent under this part of the law. And this clearly stifles 
the right to engage in free choice and free exercise of 
statutory rights.
    Senator Kennedy. On related, sort of subject matter--and 
that is the board has been criticized for providing fewer 
rights to fewer workers. For example, the board took away the 
right of nonunion workers to have a witness or some kind of 
representative with them when they are being investigated by 
their employer. Also the board has issued a number of decisions 
excluding broad categories of workers, especially many nurses 
and construction workers from the law's protections.
    What effect do you believe these decisions have had on the 
workplace? And what steps do you believe are necessary to 
ensure the board fulfills its statutory duty to ensure 
collective bargaining?
    Ms. Liebman. Thank you for the question. I think it is 
quite clear the trend has been to apply the statutory coverage 
provisions in a very narrow way. Earlier this morning someone 
mentioned the San Manuel decision. And that is the one notable 
exception to this trend. And that is where the board held that 
the statute applied to employees working for tribal casinos.
    But other than the San Manuel case, the trend has been to 
narrow the coverage of the law, particularly with respect to 
different kinds of employees, different kind of workers that 
are emerging in the workplace, including contingent workers or 
the increasing use of graduate teaching assistants in 
universities as universities feeling the economic pinch have 
turned more and more and more to using graduate teaching 
assistants instead of professors.
    And so, wherever there seems to be some new kind of worker 
looking for representation, it seems that the board majority 
has applied a very narrow construction of the statutory 
provisions and excluded them from the coverage of the act, 
which means that the act really is not applying to people who 
work for a living who give their services in turn for some kind 
of compensation, which really is the common law definition of 
an employee.
    Senator Kennedy. I don't know how long our colleagues are 
going to be tied up over there, but I am enjoying it. I admit. 
I never thought I would be chairing a House hearing. I don't 
know quite that I had that in mind but it is a great honor. Let 
me add that very quickly.
    I am interested, if you would, Ms. Liebman, to respond to 
the questions about reversing precedents. I think that this is 
important, the Clinton board versus the Bush board. I think 
Chairman Battista gave a very strong statement on that. I think 
it is important that we have in the record your view.
    Ms. Liebman. Yes, I appreciate the opportunity to reply to 
that. I haven't had the time to study the figures cited by 
Chairman Battista, who quotes from Roger King a management 
lawyer's speech. But the real issue is not the number of 
precedents that have been overruled. The real issue is the 
reason for the overruling and the substance of the change in 
the law.
    I would point out, by the way, that there are other ways of 
deviating from established law besides honestly and openly 
overruling precedent. For example, there is narrowly construing 
existing precedent or distinguishing cases away or simply 
ignoring them if they stand in the way of a desired result. And 
that we have seen quite a bit. I just mentioned some with 
respect to employer free speech rights.
    In addition, if you look at the board's cases of the last 5 
years and if you are able to read the footnotes in those 
decisions, you will see dozens and dozens of footnotes where 
existing precedent, many of it very longstanding, is questioned 
by one or more members of the majority in a way probably 
signaling to practitioners that these issues are open and 
certainly sowing confusion and uncertainty about the state of 
the law.
    As the Supreme Court has made clear, there is nothing 
inherently wrong with an administrative agency overruling 
precedent. In fact, it can certainly be appropriate. When 
changes in the economy or the workplace show that an old legal 
rule is outdate or where experience shows that an old rule is 
unworkable, where there are conflicts within the case law that 
need to be resolved, or when more careful examination shows 
that a prior board's reasoning was flawed. In all those kinds 
of situations, overruling precedent is acceptable and even 
justified. This is an administrative agency, not a court.
    In my view, when the Clinton board reversed precedent, it 
did so for these kinds of reasons that I have just outlined. 
And the affect of the reversals was to bring the board's law 
into closer harmony with the goals of the statute, which I have 
articulated before, to promote collective bargaining freely 
chosen.
    In my view, the Bush board has done the opposite with 
respect to overruling precedent. And Member Walsh and I have 
tried carefully to explain why we think that in our dissenting 
opinions.
    Senator Kennedy. Okay.
    Ms. Liebman. Thank you.
    Senator Kennedy. I am going to give you both a chance. You 
have referred to it, but I think it is important to get your 
individual views about what you think the overall impact of the 
past 5 years have been on the collective bargaining process. Do 
you think that it has been enhanced? Do you think it has been 
diminished?
    Chairman Battista?
    Mr. Battista. I think, Senator, that the past 5 years we 
have attempted to decide cases on the basis of the law, apply 
the facts to the law, and reach a decision. I think there has 
been an emphasis on free choice for employees in our decisions. 
Once that choice is made, we certainly encourage collective 
bargaining. But I think that that is true.
    I think where we have moved precedent it has generally been 
back to the precedent that was long-recognized before the 
Clinton board overturned it. I think that perhaps the pendulum 
just moved a little bit from the left to the right and maybe 
into the center. And I hope that that is what these 5 years are 
looked at.
    Senator Kennedy. Yes, I am never sure what these left and 
right references really mean. I think I understand your 
comment, but I am not sure that they are good or necessarily 
accurate measurements when you are certainly talking about 
workers' rights.
    Ms. Liebman, I know you have referred to this in other 
answers. Perhaps you would just summarize your view.
    Ms. Liebman. Yes. Let me start by saying that I think the 
most--perhaps the most notable thing about the last 5 years is 
the increasing disenchantment with the board, with the board's 
decisions, but not just with their decisions, with the 
decision-making process, with the perception of the integrity 
of the process and a disenchantment with the law itself, the 
law's ability to actually protect workers' rights. I think that 
has been the most significant impact of the last 5 years.
    A significant policy choice of this board has been to 
elevate free choice. And in these cases, it has always been the 
choice to reject union representation over the promotion of 
collective bargaining. To my knowledge, this is the first board 
to articulate the ranking of statutory policies in this way. In 
fact, the only authority I have found in the board's case law 
for articulating the policy weighing that way was in a 
dissenting opinion in, I think, 1983 or 1984 by former Chairman 
Donald Dotson.
    So in so doing, I think the board has presented its own 
dramatic policy decision as a simple matter of statutory 
interpretation. And this fifth dramatic policy decision, I 
think, colors everything that this board has really done by 
elevating essentially the right to refrain over promoting 
collective bargaining.
    This statute is not neutral about collective bargaining. It 
says expressly that the purpose of this--or the policy of this 
nation is to promote collective bargaining. The agency is 
neutral with respect to the parties that come before it. But it 
is not neutral as to the policy goals, which are to promote 
collective bargaining freely chosen.
    And last, I would say--and I made this point in my opening 
statement--that when the decisions and the policy choices so 
consistently seem to favor employer interests or oppose 
unionization or impede collective bargaining, I think there is 
a problem. Thank you.
    Senator Kennedy. Let me----
    Mr. Battista. Senator, if I could----
    Senator Kennedy. Yes.
    Mr. Battista [continuing]. I would like to make one 
comment. With regard to encouraging collective bargaining, I 
would like to note from the paper that I have submitted for the 
record that Archibald Cox stated that the Taft-Hartley Act 
``represents a fundamental change in philosophy which rejects 
outright the policy of encouraging collective bargaining.'' 
That is on a 1961 Harvard Law Review volume.
    The fact of the matter is I think that the Taft-Hartley Act 
did work changes and did result in a more neutral stance by the 
board. But I disagree with Professor Cox. Once employees make 
clear their decision to be represented, then I think the agency 
has an obligation and does encourage collective bargaining.
    Senator Kennedy. Well, we will come back. Didn't you sign 
on to the Terracon case, the 2003 Terracon case that said that 
the purpose of the act is to promote collective bargaining?
    Mr. Battista. I don't disagree that it is.
    Senator Kennedy. Okay.
    Mr. Battista. It is when that promotion begins.
    Senator Kennedy. All right. Let me just ask finally because 
then I know the others are here.
    Ms. Liebman, just the final question. The Supreme Court has 
held that workers who work for nonunion employers in order to 
organize from within, sometimes called salts, are entitled to 
full protection of the National Labor Relations Act. The 
Supreme Court has held that.
    Yet in several cases this year, the board's decisions 
seemed designed to do an end run around that Supreme Court's 
decision and to treat these union salts as second-class 
citizens. Aren't the cases like the Oil Capital Sheet Metal and 
the Toering Electric Company contrary to the spirit of the 
Supreme Court's protection for union salts?
    Ms. Liebman. I would say so, Mr. Chairman. The Supreme 
Court in the Town and Country case made clear that a salt, as 
they are known, employees seeking to be hired in order to both 
uncover anti-union discrimination and to organize the workforce 
when hired, have the full rights of statutory employees.
    In the Toering decision, the board, I thought quite 
startlingly, said that people who don't prove that they have a 
genuine interest in going to work are not statutory employees. 
That seems directly contrary to what the Supreme Court has 
said.
    I might add also that the Oil Capital decision and Toering 
departed from a decision of the Clinton board entitled SES 
which set out the framework for approving and litigating cases 
involving salts and hiring discrimination. That was a 
bipartisan decision at that time and seemed to work well. It 
was approved by the courts.
    And they took that both Toering and Oil Capital has 
deviated from that precedent as well in a way that I would 
suggest to you just represents a hostility toward the practice 
of salting.
    Senator Kennedy. Thank you.
    I relinquish the gavel to my friend and colleague, Mr. 
Andrews. I have enjoyed this thoroughly. I mean, it is unique. 
I don't have this opportunity over in the Senate, unlimited 
time, no Republicans here to correct me around. This is a dream 
come true. It has taken 45 years to get here.
    But thank you. You have been very responsive and courteous.
    I thank the chair.
    Chairman Andrews [presiding]. Well, I would like to thank 
the chairman for his filling in for us here. Senator Kennedy 
can now write in his memoirs that he got to chair a House 
subcommittee. And I can tell my children that Senator Kennedy 
was my understudy. Not bad, not bad.
    I do want to ask just a couple of questions before we go to 
the next panel. I have not had my chance to question this 
panel.
    I want to thank the witnesses for their patience and their 
participation here this morning.
    Mr. Chairman, in discussing the Dana and Wurtland 
decisions, you indicated they were both about cards. That is 
obviously true. But I wanted to walk through my perception that 
there is a pretty significant contradiction.
    In the Dana decision, if I am not mistaken--correct me if I 
am--the majority decision draws a distinction between 
representation decision by majority signup and representation 
decision by ballot. If I read that decision correctly, the 
reasoning is that the bar on reconsideration of recognition 
does not apply now to circumstances where the union was 
recognized by a majority signup. Is that right?
    Mr. Battista. I am sorry, I didn't hear the question.
    Chairman Andrews. For 40 years we have had a precedent 
where there is a bar on reconsideration of the recognition 
decision for a ``reasonable period of time,'' which has, I 
think, been broadly interpreted as 2 years or 3 years by the 
case law.
    Mr. Battista. Right.
    Chairman Andrews. That bar no longer applies under this 
precedent in the case of majority signup leading to the 
recognition of the union. Is that right?
    Mr. Battista. No, there is a recognition bar. And that is 
for a reasonable period of time.
    Chairman Andrews. Right.
    Mr. Battista. It is not for any particular period of time.
    Chairman Andrews. Okay. Does that bar now apply in the case 
of majority signup equally as it does with the secret ballot 
recognition?
    Mr. Battista. No, it just applies to a card check situation 
where there is a majority signup.
    Chairman Andrews. Okay. Okay.
    Mr. Battista. And there is a recognition. Then there is a 
recognition bar. Where there is an election, the law has a 
certification bar. The union is then certified as the 
collective bargaining representative. And that bar is 
irrebuttable for a period of 1 year and then rebuttable after 
that.
    Chairman Andrews. But isn't it fair to say that before the 
Dana decision, the same bar applied to majority signup and 
secret ballot elections?
    Mr. Battista. No.
    Chairman Andrews. It didn't?
    Mr. Battista. The recognition bar, which is a reasonable 
period of time, would apply to a situation where an employer 
recognized the union on the basis of a card check. The 
certification bar would be the bar that resulted as a result of 
the union winning an election.
    Chairman Andrews. But at the very least, the Dana case 
stands for the proposition that as little as 22 days can be a 
reasonable period of time before decertification can be 
considered. Right? Wasn't that the facts of that case--22 days 
after the employer voluntarily recognized the bargaining unit, 
there was an effort to decertify, and the petition was heard. 
Right? So isn't there a much shorter period of time now before 
something is----
    Mr. Battista. I don't believe so. I think what you have is 
with Dana there was a petition that was filed. That petition 
was dismissed by the regional director. And that is how the 
case got up to us.
    Chairman Andrews. But then the petition was----
    Mr. Battista. Under our decision----
    Chairman Andrews. Right.
    Mr. Battista [continuing]. We said that where you have a 
recognition, you are to notify the National Labor Relations 
Board, the regional office, of the fact of the recognition. And 
then there is a notice that is posted that gives the employees 
45 days to petition if they wish. And if they don't wish, the 
recognition bar kicks in after the 45-day period and goes on 
for a reasonable period.
    Chairman Andrews. Member Liebman, do you think that the 
decision is as narrow as the chairman just characterized it?
    Ms. Liebman. Is that narrow? No, it is not as narrow 
because, well, the decision itself upsets what had long been 
the principles about voluntary recognition and the insulated 
period that would follow a voluntary recognition to allow the 
parties a chance to bargain collectively.
    Now, there is 45 days that, for one, kicks in where there 
is no insulated period. Campaigning can go on against the 
union. The employer may be reluctant to even begin bargaining 
with the union during that time because of the uncertainty of 
what is going to happen.
    The union may be subject to attack to its majority status 
during that 45-day period. And so, there is just the opposite 
of an insulated period that occurs. And if an election is 
actually scheduled and occurs, the open-endedness could go on 
for far more than 45 days.
    So to say that this is just--I don't remember exactly how 
the chairman put it--but a postponement is really much too 
simplistic and much too--well, it doesn't do justice to what 
their decision did in the dramatic change in the whole process 
that this decision brought about, plus the notice itself. Right 
after a majority of employees have freely indicated they want 
union representation, the notice goes up in the workplace that 
says that you have a right to get rid of the union. That is 
unprecedented.
    Chairman Andrews. Thank you very much.
    We are going to proceed to two members that have questions 
for this panel and then quickly to the next panel.
    And we begin with Mr. Tierney. Mr. Tierney is recognized 
for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman.
    I thank our witnesses for being here today.
    Attorney Liebman, just direct your attention to the 
Worcester, Massachusetts case for a moment. And we talked a 
little bit earlier. I think somebody mentioned that they were 
looking at precedent that had been set during the Clinton 
administration. But in that case, precedent was set back in the 
1960s, I think 1962, about the idea of balancing the interest 
of employees to self-determination and the interest of labor 
stability.
    And it was in the middle of a 5-year contract, the 3rd year 
in when I understand that that employee decided that they would 
like to get out of that representation. And the board instead 
of going along with general counsel's recommendation, which was 
to adhere to the integrity of the contract or the life of the 
contract, decided that at this point in time the employer could 
just pack up and move on.
    Can you describe to me, you know, what damage that does to 
that balance of interests that have been going on for some 40 
odd years?
    Ms. Liebman. Yes, I believe you are speaking of the Shaw's 
case.
    Mr. Tierney. Exactly, exactly.
    Ms. Liebman. I dissented in that case. And I believed that 
the decision was wrong for a number of reasons. First of all, 
it allowed an employer who had agreed to a 5-year contract to 
withdraw recognition from the union after 3 years. Under board 
procedures, the employer would not have been permitted to file 
for an election, what we call an R.M. petition.
    The employer couldn't do that. But the board majority said 
the employer could exercise its option just to unilaterally 
withdraw recognition.
    And that was even though the employees themselves had filed 
a petition which could be entertained by the board after 3 
years of a contract. There is a 3-year contract bar that after 
3 years, the board does entertain petitions filed by employees 
or by a rival union. It just won't entertain a petition filed 
by an employer.
    So clearly, the decision upsets the balance that I spoke 
about and also impairs the integrity of collective bargaining 
and the integrity of contracts. This employer agreed to a 5-
year contract, presumably got something for that agreement, in 
return for that agreement. And we are allowing now that 
employer to walk out.
    As I mentioned earlier, again, I think the rhetoric of the 
majority's decision was a terribly unfortunate because they 
said that to not justify, to not allow the withdrawal of 
recognition would force people to endure union representation 
that they didn't want. I have never seen comparable language 
used with respect to employees who have to wait for years to 
enjoy the benefits of union representation.
    Mr. Tierney. Mr. Chairman, Chairman Battista, I have got to 
tell you that, you know, when I read the decision, I get the 
same inference from that. You are just taking an unsolicited 
whack away on that.
    How do you reconcile dumping 40 years of precedent in a 
case like that?
    Mr. Battista. I don't believe that that issue had come up 
before. I believe there was a 5-year agreement. And the 
employees, without any employer instigation, presented the 
employer with a petition to get rid of the union. The question 
was what should we do with that.
    From a contract bar standpoint, the employer is certainly 
barred from acting in terms of for the 5 years. The question is 
how do you then give vent to or give meaning to what the 
employees want to do.
    Mr. Tierney. Well, what do you say----
    Mr. Battista. And what they did was withdraw recognition.
    Mr. Tierney. What do you say to the fact that they could 
have had an election, which was authorized?
    Mr. Battista. Well, they could have had an election. I 
believe there were blocking charges filed in that case. And if 
an unfair labor practice charge is filed, it will block the 
election until such time as the investigation is finished.
    Mr. Tierney. Which would seem appropriate. But, I mean, 
what do you say about the whole idea of labor stability, about 
the integrity of the contract? I mean, it just seems that you 
went to unusual lengths to destroy both of those principles.
    Mr. Battista. I think from the integrity of the contract 
there is a 5-year bar for the parties. For the board, we had to 
make the board majority, and we just had to make a decision 
between employee choice and stable bargaining relationships. 
And here the stable bargaining relationship was over 3 years, 
and the employees wanted to make a change.
    Mr. Tierney. Well, see, you could have let them have an 
election, but you chose not to go through the board's own 
process of election.
    Mr. Battista. It wasn't the board that made the choice. It 
was the employer that made the choice.
    Mr. Tierney. Well, you allowed the employer to make the 
choice. I mean, now we are doing semantics here.
    Mr. Battista. And we----
    Mr. Tierney. You had the option as the board to say there 
is a process here and there is a balance to be struck, they are 
going to have an election. If that is what they want, they can 
go through that process, but we are not just going to 
unilaterally come in here and dump 40 years of precedent on 
this thing.
    Mr. Battista. Well, I----
    Mr. Tierney. Just let them have the election, have them go 
through that process and go through the whole procedure.
    Mr. Battista. I don't believe that there was any precedent 
that required an election.
    Mr. Tierney. Well, precedent or not, why didn't you just 
let them go through the normal process?
    Mr. Battista. Because I think we made an evaluation as a 
board and as a board majority that looking at employee free 
choice in this instance, they are wanting to make a change. And 
contract stability--the 3 years had passed. There was a period 
in which the----
    Mr. Tierney. I have to tell you, Mr. Chairman, given the 
language, the unfortunate language that you used, I find it 
hard to think that the three of you were being champions for 
unions and labor in that case.
    Chairman Andrews. The gentleman's time----
    Mr. Tierney. I yield back.
    Mr. Battista. Well, maybe we were being champions to the 
employees. And it might not be champions to unions, but 
certainly to the employees, Mr. Tierney.
    Chairman Andrews. The gentleman's time is expired.
    The chair recognizes the gentleman from Georgia, Dr. Price, 
for 5 minutes.
    Dr. Price. Thank you, Mr. Chairman. I appreciate you 
holding this hearing. I guess it is fitting that at this time 
of year in this session, at this time in the session that we 
are sitting here in a hearing that I think would be charitably 
called political. I guess one could draw other conclusions. But 
I appreciate the opportunity, hopefully, to shed a little light 
on some principles.
    Ms. Liebman, you have in some way in your comments seemed 
to connote or imply that freedom ought not be the paramount 
principle by which we act as a nation in employer and employee 
relations. You also mentioned curiously--I had to write it 
down--that private property rights ought not--they ought to be 
subservient to something else and that free speech ought to be 
subservient.
    I just find it curious and troubling that we want to fall 
back on principle for the NLRB, but the principle upon which we 
want to fall isn't the Constitution, the rule of law, freedom, 
and what Americans across this nation hold dear, which is, I 
guess, why I find it amusing at best that we are here in 
December talking about these issues when we know that this 
majority began the year removing the right to a secret ballot 
for employees to form a union.
    Mr. Wu. Will the gentleman yield?
    Dr. Price. So the desire--I beg your pardon?
    Mr. Wu. Would the gentleman yield?
    Dr. Price. Who is asking?
    Mr. Wu. The gentleman from Oregon is asking.
    Dr. Price. Absolutely.
    Mr. Wu. Has the gentleman ever seen an election in the way 
that it is contested?
    Dr. Price. Reclaiming my time, clearly, you see the 
politics of the nature from the other side. So I think that 
principles of freedom, principles of free speech, principles of 
private property rights ought to be paramount, ought to be 
paramount.
    When I hear the chairman talk about the progress that has 
been made on the board--and I am not intimately familiar with 
the activities of the board. I have attempted to bone up on 
that. But when I hear that the caseload has significantly 
decreased by hundreds, that the delay in cases has 
significantly decreased by hundreds and that the number of 
cases that were overturned by the previous administration's 
NLRB that overturned precedent and the number of years of 
precedents compared to this, I think it belies any true 
accusation on this board that it is not living up to the 
appropriate standards that it was and that it has not been fair 
in its process.
    So I think that it is important to appreciate why we are 
here. And it is important to remember that in the context of 
previous boards, I would suggest that somebody looking from the 
outside who didn't have any ax to grind at all would say that 
this was a board that was working relatively well and maybe 
even better than in the past and was being respectful of 
precedents to a greater degree.
    I represent the 6th District Georgia, which is Northern 
Suburban Atlanta, a lot of small businesses, lots of small 
businesses and folks who are very concerned about cases in 
which salting occurs.
    And so, I would like to ask, Mr. Chairman, if you would 
please comment on the issue of salting, comment on the board's 
stance as it relates to salting and whether or not any changes 
you believe would be recommended to this committee and vis a 
vis salting.
    Mr. Battista. While, I have no legislative changes, I can 
tell you certainly what we have done from a decisional basis. 
We follow FES, which is a Clinton board decision dealing with 
whether or not someone has been improperly terminated and the 
burden of proof in that insofar as a salt goes. We have made a 
couple of changes.
    We have looked at where a salt is unlawfully terminated. We 
have looked at the length of the back pay period. And the salt, 
unlike another employee who might be seeking indefinite 
employment, is there for a fixed period of time to organize the 
employees or, if they are unsuccessful, then to move on to 
another employer where they can organize the employees.
    And so, we have said that the normal presumption that back 
pay would continue on indefinitely doesn't apply in the case of 
the salt. And you have got to look to the----
    Chairman Andrews. Excuse me, Mr. Chairman, if I could ask 
you just to wrap up quickly because the time is expired. So if 
you would finish your thought.
    Mr. Battista. We fine tuned it really with Oil Capital and 
our decision in Toering, really.
    Dr. Price. Thank you.
    Mr. Chairman, may I inquire of the chairman just a question 
regarding this panel?
    Chairman Andrews. Sure.
    Dr. Price. It is my understanding that the minority wasn't 
allowed a witness on this panel. Is that correct?
    Chairman Andrews. I don't believe that is correct at all, 
no.
    Dr. Price. So the minority was solicited and had an 
opportunity to see the panel member here? Is that correct?
    Chairman Andrews. Well, I would note that the chairman of 
the National Labor Relations Board was appointed by the 
president--NLRB was appointed by the president.
    Dr. Price. I would note as well that the member is 
appointed by the president as well, has been on two occasions.
    Chairman Andrews. My understanding is the minority was 
consulted about the witnesses at this hearing.
    Dr. Price. And I appreciate that. I would just ask you to 
check with your staff regarding that. Thank you.
    Chairman Andrews. The chair recognizes the gentleman from 
Illinois, Mr. Hare.
    Mr. Hare. Thank you, Mr. Chairman.
    And let me just say with all due respect to my friend from 
Georgia, I don't think it really matters what month we have 
these hearings. I don't see these hearings as political at all. 
I think we have an obligation to have people come before this 
committee and to be able to ask questions.
    Mr. Chairman, let me just respectfully disagree with that 
assessment of the NLRB. I guess I am one of those people you 
referred to as--I am trying to remember the term, and it will 
come back to me. But I served 13 years in a union. And I worked 
for a member for 24 years. I have been here for a year.
    So I think I have 28 years of being able to look at labor 
boards and working with them and seeing decisions. I will be 
very candid with you from my perspective. We are just going to 
have to agree to disagree. I don't think I have ever seen a 
labor board so tilted against unions, against working people 
and more in favor of employers than this board in the 28 years.
    I think it was special interest you said. So with all due 
respect to the people in organized labor and unions, I consider 
them special interest because they are special people.
    I am looking at some of the decisions that have been made 
here where large groups have been excluded from NLRA 
protection, including--excuse me--graduate teaching assistants, 
disabled individuals working as janitors, faculty members, 
newspaper carriers and haulers, temporary employees working 
jointly for a supplier-employer and a user client unless both 
employers consent, and hundreds of thousands of professional 
technicians and skilled employees by radically broadening 
interpretation of the NLRA term of supervisor.
    The other thing I am very disturbed about is you have given 
employers greater leeway to intimidate course workers during 
organizing campaigns, from my perspective, also for people to--
one of the other loopholes that this board has decided to 
create--and by the way, the trouble that I have with this board 
is you are not just following the law, I think you are trying 
to interpret it internally and then change it when you can when 
it fits.
    For example, the board held in one of your September cases 
that employers can condition severance pay on workers' 
agreement to waive their rights to report their employer's 
illegal conduct. And this rule essentially allows employers to 
buy their way out of breaking the law.
    The EEOC treats such coercion as illegal, and it sues 
employers who make these kinds of threats. So I have a very 
difficult time understanding why the board would make 
decisions, you know, other than if we are talking politics 
here, I think we may be viewing this from a political 
perspective.
    And I would like to ask the member, if I could, you know, 
do you see partisanship, you know, on this NLRB as contributors 
to this anti-union sentiment, or it is just merely a symptom of 
what is happening? And from your viewpoint--I know you have 
dissented on a number of these things--do you think that this 
board is, in fact, trying to reinvent the wheel here instead of 
enforcing what we have?
    But I will tell you again having said this, I am very, very 
concerned that ordinary people and their rights are being 
adversely affected by decisions that this board makes. And if 
they don't like them, they just change them. And I don't know 
if you would concur with that. I would be interested in any 
thoughts you have.
    Ms. Liebman. Is that question for me?
    Mr. Hare. Yes. Sorry, a lengthy one.
    Ms. Liebman. Thank you. I would be very hesitant to ascribe 
motivation to my colleagues on the board.
    Chairman Andrews. I don't believe your microphone is on, 
Member Liebman. Thank you.
    Ms. Liebman. Thank you. I would be hesitant to ascribe 
motivation to my colleagues on the board. I would prefer rather 
just to look at the decisions themselves, the process of the 
decision making and the impact of the decision-making.
    And as I said in my opening statement, I think that when 
you look at the policy choices that have been made over the 
past 5 years, you see that there is a kind of constant 
drumbeat, that there is nothing different about the September 
cases. Maybe they built to a crescendo, but there is really 
nothing different in the tenor of these cases from throughout.
    And when you look at the policy choices, they all tend to 
create obstacles to collective bargaining, create obstacles to 
union representation, and elevate employer interests over 
employee statutory rights. A comment was addressed to me a few 
moments ago that my statement sounded like I didn't value 
freedom. That is certainly not the case.
    Collective bargaining is to be freely chosen. And that 
means free from coercion by unions or by employers. And some of 
the free speech cases decided by this board, in my view, 
clearly infringe on the right of employees to engage in free 
choice. Likewise, when employers are given the right to 
vindicate their employees' free choice rights, that is not free 
choice.
    So you have to look at the question of whether freedom is 
really free under this statute. When you consistently elevate 
private property or other managerial interests over statutory 
rights, something is wrong.
    The Supreme Court long ago said that private property 
rights and employee statutory rights have to be accommodated to 
some extent. When an employee goes to work for an employer and 
goes to work on the premises, the employer's private property 
rights must yield to some extent so the employees have the 
right to communicate with each other at work about their terms 
and conditions of employment and about unionization.
    So much of this over the course of 70 some years has been a 
balancing act. But under this statute, it is just inconceivable 
that every time a policy choice is made, it is made in the 
direction it has been made. You can have differences about how 
you do the balancing. And certainly, over the years, there have 
been different balances.
    But this, really, over the last 5 years, as I said, I think 
it is something different. It represents a competing or a 
different view of this statute, a different expression of 
policy preferences.
    Mr. Hare. Thank you. I am glad you were able to answer a 
question that you didn't get the time to answer. So thank you.
    Chairman Andrews. The gentleman's time is expired.
    The chair recognizes the gentleman from Oregon, Mr. Wu. Is 
he here? Okay.
    The chair will recognize the gentleman from Michigan, Mr. 
Kildee, for 5 minutes.
    Mr. Kildee. I have no questions.
    Chairman Andrews. Mr. Wu has reappeared. Do you have 
questions, Mr. Wu? It is your time.
    Mr. Wu. I thank the chairman----
    Chairman Andrews. Okay. Mr. Wu in the holiday spirit has 
decided that our board members can return to their work.
    We thank you for your participation this morning very much. 
And thank you for your service to our country.
    Ms. Liebman. Thank you.
    Mr. Battista. Thank you.
    Chairman Andrews. I would ask the members of the second 
panel to come forward. We thank them for their patience.
    I am going to start to read the biographies now as the 
members come to the front so we can expedite our hearing. Matt 
Finkin is the Albert J. Harno and Edward W. Cleary chair in law 
at the University of Illinois. He teaches labor and employment 
and directs the college's of law program in comparative labor 
and employment law and policy.
    Professor Finkin has previously taught at Southern 
Methodist University, Duke University, and the University of 
Michigan Law Schools. He received his B.A. from Ohio Wesleyan 
University, an LLB from New York University, and an LLM from 
Yale University.
    Professor, welcome to the committee.
    Ms. Feliza Ryland--did I pronounce your name correctly? Ms. 
Ryland is a former employee of Grosvenor Resort. Ms. Ryland 
worked as a room attendant at the Grosvenor Resort Hotel from 
1984 to 1996 and is one of the many workers directly affected 
by one of the decisions issued by the NLRB this past December.
    She is currently a housekeeper at the Old Star Resort, a 
Disney Hotel in Disney World in Orlando, Florida and is a proud 
member of the union Unite Here. Ms. Ryland is married, has one 
adult son.
    Ms. Ryland, welcome to the committee.
    Ms. Ryland. Thank you.
    Chairman Andrews. Mr. Charles Cohen is returning to the 
committee. He is a partner at Morgan, Lewis, Bockius law firm 
where he focuses on representing senior management in labor and 
employment law in the private sector. From 1994 to 1996, Mr. 
Cohen served as a member of the National Labor Relations Board.
    For the past 3 years, Mr. Cohen has been named one of the 
leading U.S. lawyers for employment law by Chambers USA. He 
earned his B.A. from Tulane University in 1967 and his J.D. 
from the University of Pittsburgh School of Law in 1970.
    Mr. Cohen, welcome back.
    Mr. Cohen. Thank you very much, Chairman.
    Chairman Andrews. And finally, Jon Hiatt is the general 
counsel for the AFL-CIO. He was appointed to that position on 
November 1st of 1995. Mr. Hiatt previously served for 8 years 
as general counsel for the Service Employees International 
Union where he directed that union's legal department.
    Before joining SEIU, he was a partner in a labor law firm 
in Boston. Mr. Hiatt graduated from Harvard College and the 
Boalt Hall School of Law at the University of California, 
Berkeley.
    Mr. Hiatt, welcome to the committee.
    Professor Finkin, I think the witnesses heard the ground 
rules. Your written statements have been accepted without 
objection for the record. We would ask you to summarize your 
written statement in about 5 minutes.
    When the yellow light appears, you have 1 minute to wrap 
up. When the red light is on, we would ask you to finish. And 
then we will go to questions from the members.
    So, Professor Finkin, welcome, and we look forward to your 
testimony.

  STATEMENT OF MATT FINKIN, PROFESSOR, UNIVERSITY OF ILLINOIS

    Mr. Finkin. Thank you, Mr. Chairman. It is truly a 
privilege to appear before this body. As someone who has 
taught, researched, and published in labor law for 33 years to 
finally meet face to face with people who have the capacity to 
make the raw material out of which I make my living. You have 
my written remarks. I will try very briefly to summarize the 
four leading points.
    First, since 2004, the National Labor Relations Board has 
embarked upon an historically unprecedented course rendering 
decision after decision, some overturning doctrine of short 
duration, some overturning doctrine of more than 40 years, 
which combined to make it more difficult for employees to 
institute or maintain a collective bargaining relationship or 
that curtail or eviscerate the rights of nonunionized employees 
the right to engage in concerted activity for mutual aid or 
protection. This much I submit as simply beyond dispute.
    The chairman used the phrase special interests. I do not 
think I represent any special interests. I merely represent an 
honest academic laboring in the vineyard of labor law. But I 
note that a petition has been submitted and entered on the 
committee record signed by what I believe is a majority of the 
full-time teachers of labor law in American law schools.
    I did not have the benefit of that petition at the time I 
wrote my own remarks. But I note that the sentiments that I 
express here are completely concordant with what a majority of 
my colleagues in the academy think to be true.
    Second, none of these decisions, none of them, are 
statutorily commanded. They are the product of policy choices 
made by the board. That, too, is beyond dispute and, indeed, is 
confirmed by the previous discussion.
    Ironically, given the intense politicization of the board 
in recent years, a differently constituted board majority could 
in future reconsider each of these decisions and reach an 
opposite effect well within the ambit of administrative 
discretion.
    Third and related to that, the board has the power to 
fashion national labor policy interstitial to the labor act. 
That is the function of an administrative agency, to find tune 
and adjust the statute to changing circumstances to unforeseen 
conditions in the economy or in larger trends in society. That 
is its function.
    For reasons that my remark explain, my final point and 
really an answer to your opening question, Mr. Chairman, the 
board's decisions are not responsive to any discernible trend 
in society or any discernible economic demands or need. On the 
contrary, they work in a quite opposite direction.
    I submit that they are oblivious to the unfolding realities 
of the American workplace on many of the kinds of questions 
that Senator Kennedy remarked upon as he opened. I believe my 
views are shared, as I said, widely within the academic 
community, those of us who teach, research, and worry about the 
direction of American employment law.
    [The statement of Mr. Finkin follows:]

  Prepared Statement of Matthew W. Finkin, Harno-Cleary Chair in Law, 
                 University of Illinois College of Law

    My name is Matthew W. Finkin. I hold the Harno-Cleary Chair in Law 
at the University of Illinois College of Law in Champaign, Illinois. 
For more than three decades I have researched, published, and taught 
labor and employment law in both the domestic and international 
context. A brief biographical entry is appended to these remarks.
    I have been invited to address the impact of recent decisions of 
the National Labor Relations Board on worker rights. That, to 
paraphrase Justice Frankfurter, is a horse soon curried.\1\ I should 
think it might be helpful to this body if I situate the Board's 
decisions on the larger legal, social, and economic landscape; and 
respectfully to suggest at the close what areas have call for 
legislative correction.
I. The Pattern of NLRB Decisions 2004-2007
    The current Labor Board has charted an historically unprecedented 
course, overturning doctrine--some of long standing, some of recent 
vintage--and charting new legal ground altogether, limiting the scope 
of those to whom the protections of the Labor Act extend,\2\ making it 
more difficult for employees to institute or maintain a collective 
bargaining relationship with an employer,\3\ limiting the remedies that 
otherwise might be due to persons whose statutory rights have been 
violated,\4\ limiting the rights of economic strikers,\5\ limiting the 
General Counsel's ability to vindicate the Act,\6\ and narrowing or 
eliminating other statutory protections.\7\
    As the latter is of particular professional interest, please bear 
with me as I draw the Committees' attention to the Board's readoption 
of the rule that an individual faced with disciplinary interrogation in 
a non-unionized workplace has no right of accommodation to the 
requested presence of a coworker.\8\ In much the same spirit, but in a 
case of first impression, the Board held that an employee on his break 
time on a customer's parking lot can be forbidden by his employer to 
talk to a union organizer when the organizer's presence in the parking 
lot was unauthorized by the customer, i.e., to refashion the customer's 
property-based right to exclude union organizers from speaking into a 
contractor's non-property based right to forbid its employees from 
listening.\9\ The Board has held that an employee who seeks the aid of 
a co-worker in pursuing a complaint of sexual harassment was not acting 
for ``mutual aid or protection'' because her individual claim advanced 
no group interest, despite the unmistakable weight of authority to the 
contrary.\10\ And the Board has held that a collective protest by 
school bus drivers, to save their unionized jobs by adverting to a non-
union competitor's record of hiring unsafe drivers, was unprotected--
indeed ``disloyal'' to a company to whom no common law duty of loyalty 
is owed\11\--because the text of their protest ``implicate[d] the 
safety of children, not the common concern of employees,''\12\ i.e., 
that school bus drivers have no work-related interest in the safety of 
the children they transport. The Board could rest on this counter-
intuitive proposition because the text of the drivers' protest drew no 
connection to their interest in saving their unionized jobs; but that 
their petition had to do so was not heretofore the law, a fact the 
Board neglected to mention.\13\
    The Board has also proven itself capable of maintaining two 
inconsistent policies simultaneously. In BE&K Construction Co.,\14\ the 
Board held that an employer's maintaining an eventually unsuccessful 
lawsuit for no purpose other than one violative of the Act, e.g., 
simply to impose high litigation costs on a union, is nevertheless not 
an unfair labor practice if the suit was ``reasonably based.'' The 
Board justified this rule out of its professed commitment to the First 
Amendment. But that commitment has not manifested itself in a similar 
protective solicitude toward the display by unions of an inflated rat 
in conjunction with a labor dispute or to union performance of ``street 
theater'' critical of an employer even though the teaching of the 
Supreme Court that such is free speech seems beyond peradventure.\15\
    The Chairman of the NLRB has defended the Board's decisions by 
adverting to the availability of judicial review as a corrective to any 
administrative excess\16\ and by adverting to the role of the Board as 
a ``neutral arbiter of disputes.''\17\ The former supplies no 
justification for the course the Board has charted. The latter obscures 
the Board's decisions by a profound mischaracterization of its role.
II. The Context of Administrative Law
    Let us first consider judicial review. The United States Supreme 
Court has repeatedly stressed the role of the Labor Board in the making 
of national labor policy;\18\ and general principles of administrative 
law require the courts to defer to an agency's policy decisions so long 
as they are within the area of discretion reserved. The Board may 
modify antecedent doctrine or abandon it altogether; it may fashion 
novel doctrine interstitial to the Act, that is at its margins even if 
it is at the margins where the law might most importantly be felt in 
the face of changed circumstances. In principle, an agency may not 
alter the basic focus or function of its organic law,\19\ but that 
principle fails to address the systematic narrowing of the organic 
statute's mission by a combination of numerous decisions no one of 
which, taken only on its own, can be said to lie outside the ambit of 
administrative decision. The appearance of legal continuity is thus 
maintained even as the Act's stated purpose, of ``encouraging the 
practice * * * of collective bargaining,''\20\ is transformed or the 
rights of employees are curtailed or eviscerated. That is just what has 
happened in the course of the past few years. Accordingly, it will not 
due to refer to judicial review--and rate of judicial affirmance--as 
any indication that the Board is performing responsibly.
III. The Politicization of the Labor Board
    The Board's activist posture has been explained in part by the 
failure of Congress to attend to national labor policy which vacuum has 
accordingly been filled by the Board's refashioning of it. That 
potential has long existed but, as Professor Joan Flynn has observed, 
it was muted in early practice:\21\ Presidents Roosevelt and Truman 
drew their appointees from the ranks of the Board's bureaucracy and 
from the academy. President Eisenhower appointed persons who had 
represented management, but from professional backgrounds completely 
comfortable with the institutional role of unions. Thereafter, 
Presidents Kennedy, Johnson, and Carter continued the tradition of 
appointing only career bureaucrats and academics; Presidents Nixon and 
Ford continued the Eisenhower practice of also appointing established 
management lawyers.
    Even so, the change from the ``Eisenhower Board'' to the ``Kennedy 
Board'' was accompanied by a swift recasting of the Board's doctrinal 
gloss on the then newly-enacted provision of the Landrum-Griffin Act 
dealing with organizational picketing. This shift, which the late 
Bernard Meltzer referred to as Five on a Seesaw, was thought 
extraordinary at the time and elicited his critical observation that, 
``The Board's changes were too rapid to be ascribed to institutional 
developments or to new insights produced by a maturing expertise; they 
reflected the different value preferences of new appointees interacting 
with loose statutory provisions.''\22\
    The Reagan administration broke with the past: ``Whereas his 
predecessors had appointed management lawyers from well-known law 
firms--solid members of the labor-management `club'--Reagan went wholly 
outside the mainstream labor relations community in his early 
appointments.'' He appointed persons known as ``anti-union crusaders,'' 
putting, as Professor Flynn put it, `` `the proverbial fox [or foxes] 
in the chicken coop.' ''\23\ Scholars debated the magnitude and 
significance of the shifts in policy the Reagan Board effected;\24\ but 
these shifts pale in comparison with the current Board's record.
    President Clinton was the first Democratic President to appoint a 
union lawyer to the Board and its politicization has now become 
institutionalized. A Canadian observer put the current situation in a 
nutshell. ``In the United States where, because of legislative 
paralysis, there has been no major labour law reform for 50 years, the 
government in power influences the direction of labour relations policy 
through its appointments.''\25\ Consequently, as Professor James 
Brudney has pointed out, this Labor Board, now heavily freighted 
politically, is at a remove from constructive engagement with the Act's 
application in the contemporary context.\26\
    Note that the Board's decision in Dana Corp.\27\ abandoned Board 
policy of almost forty years duration, remaking voluntary recognition 
of a union into an unstable decision. Note that Oakwood Care Center\28\ 
abandoned a Board decision of only a few years' duration and returned 
to a state of the law making bargaining rights unavailable to an 
increasing number of workers who are caught up in trilateral employment 
networks. To echo Bernard Meltzer, the former was the product of no new 
insight produced by a maturing expertise; nor was the latter a reaction 
to some institutional development that challenged the prior policy 
predicate. Indeed that predicate--the growth of trilateral employment 
networks--remains and the decision the Board abrogated was too new to 
for the Board to learn whether it was responsive to enabling those 
workers to be represented. To draw on Meltzer's observation, these and 
the like decisions reflect nothing more than the value preferences of 
those who decided them.
IV. The NLRB as a Political Institution
    It would blink at reality to ignore the fact that the Labor Board 
is embedded in a political matrix. Nor were those who fashioned the Act 
so foolish as to believe otherwise. In my research in the National 
Archives on the drafting of the Act I encountered an exchange between 
Philip Levy, a young New Deal lawyer fresh out of the Harvard Law 
School, and Calvert Magruder, on leave from the Harvard Law School as 
General Counsel of the ``old'' National Labor Relations Act to whom 
Levy reported, both deeply engaged in the drafting of the Act. The 
Act's provision allowing the Labor Board the power to certify a 
representative without a secret ballot election had been criticized as 
giving the Board the power by that choice to ``freeze out independent 
or progressive groups,'' given the display of radical labor 
organizations contending with established, politically conservative 
unions. Levy defended the draft, which became law, on two grounds:
    [F]irst, it is extremely important that the Board have the power to 
certify or to determine representation in any manner it sees fit, and 
secondly, if the Board is going to be pro-employer, the jig is up.
    Nevertheless, the Board Chairman has maintained that the Board's 
``intended statutory role [is] as [a] neutral arbiter of 
disputes.''\29\ As Clyde Summers observed more than fifty years ago, 
responding to the very same profession of neutrality made by a sitting 
Board Chairman:
    The critical issues before the Board represent underlying disputes 
between unions and management. No matter how the Board decides these 
issues, it can not avoid aiding one and hindering the other. 
Impartiality is impossible. There can be no impartial rules governing 
the relationship between a tree and the woodsman's ax, even though we 
let the chips fall where they may.\30\
    Summers defended the need for administrative discretion: 
legislation is always imprecise, new or unforeseen circumstances always 
arise, the sentiment of the country shifts, times change; and it is 
impractical for the legislature to sit in constant readjustment of 
labor policy. Thus,
    The duty of the agency is to discern the threads of purpose which 
run through the statute and to feel the thrusts of policy which the 
statute represents. These should then become the chief guideposts for 
the exercise of discretion, and policy making should be confined within 
these broad bounds.\31\
    But, just as an agency may be valuable because it is responsive, 
``it can be dangerous because it is not responsible.''\32\ The danger 
of irresponsibility, the danger of administrative legislation lies not 
in the open flaunting of statutory language. It lies rather in the 
failure to adhere to the underlying purposes of the statute. Through 
lack of either insight or self-restraint, the members of the agency may 
unconsciously substitute their personal judgment of values for those 
premised by the statute.\33\
    And the premise--the stated premise--of the statute is the 
protection of unionization and the promotion of collective 
bargaining.\34\
    Although there is deep-seated disagreement as to the worth and 
rightness of unionization, that issue has been decided by the statute. 
The government is not neutral in the establishment of collective 
bargaining, but has charged the Board with the function of lending the 
power and prestige of government to protect the process of 
unionization. To ``make a fetish of impartiality'' in this area is to 
compromise one of the central purposes of the statute.\35\
    I do not believe that any disinterested reader of the contemporary 
Board's record could characterize the pattern of Board decisions as the 
product of impartiality or could conceive of the Board as a neutral 
arbiter.
    To reiterate: the Board is summoned to fine tune national labor 
policy, consistent with the purpose of the law, in the face of changed 
circumstances and demonstrable need. But the Board's recent decisions 
are antithetical to the statutory end and are oblivious to both changed 
circumstances and demonstrable need.
V. The Need for Legislation
    The Canadian observer's point bears re-emphasis: we address the 
workplace of the 21st century with a labor relations law fashioned in 
the 1930s and which received its last major legislative reconsideration 
almost a half century ago. At that time, the United States' economy 
stood astride the world as a dominant supplier of manufactured goods; 
unions had achieved their highest historical density, of 35% to 37% of 
the civilian non-agricultural labor force; and a major concern was of 
whether unions had ``too much'' economic and even political power even 
as the legitimacy of collective bargaining was a given.\36\
    Today, the United States is overwhelmingly a service economy. Work 
is being performed in a variety of ways that resonate against the model 
of a full-time worker with an expectation of a lifetime career with a 
single employer--by part-time workers, leased workers, temporary 
workers, and workers categorized as independent contractors or ``own 
account'' workers. A much larger percentage of the workforce are 
professionals who function not as true independent contractors but as 
employees in highly bureaucraticized work settings. Corporate managers 
are under global competitive pressure and pressure from investors for a 
return that constrains their ability to reward labor commensurate even 
with its contribution to increased productivity, as a result of which 
the nation is experiencing an ever widening inequality of income;\37\ 
and the risk of medical need during employment and of maintaining a 
decent level of income after employment is being shifted inexorably on 
to the employee.\38\ But today, union density in the private sector is 
below 8% and employers commonly, and aggressively, challenge the 
legitimacy of collective bargaining.\39\
    The adaptation of our labor market institutions to the economy of 
this and the immediately ensuing decades has occupied many serious 
scholars.\40\ They put large questions; but, fortunately, we need be 
concerned here with only one more manageable aspect--how employees can 
secure representation and effective enforcement of their statutory 
rights. These questions have drawn the attention of labor law scholars 
for decades\41\ and I believe there to be a consensus that the most 
pressing problems are of coverage, ready access to representation, and 
remedies to effect the law's purpose, which problems have only been 
exacerbated by the Board's recent decisions.
    1. Coverage. The Board has constrained the Act's reach by excluding 
persons found to be independent contractors, oblivious to the economic 
realities of their relationship to the employer,\42\ or otherwise to be 
statutory non-employees under the guise of being supervisory, 
managerial, or in some other exempting category. These exemptions call 
for statutory readjustment to the unfolding realities of the modern 
labor market.
    2. Ready Access. What was thought a matter of routine, almost a 
matter of course, in the 50s and 60s has now become a struggle for 
institutional legitimacy. The impressive Freeman-Rogers study indicates 
that at least 23% of American workers want union representation as 
such.\43\ I.e., about 14% of the workforce, at least fifteen million 
workers, want but do not have union representation. The Labor Act was 
meant to facilitate that demand but the Board's recent decisions are to 
an opposite effect.
    3. Remedies. The Act depends almost entirely on voluntary 
compliance, especially in its imposition of a duty to bargain in ``good 
faith.'' In other unfair labor practices, Congress chose to give the 
Board limited ``make whole'' power to avoid the delay of jury trials: 
swiftness of redress was the trade-off for the lack of full 
compensatory relief.\44\ Today, justice is not swift,\45\ relief is not 
compensatory, and the law has little or no deterrent effect. Something 
needs to be done.\46\
                                endnotes
    \1\ Olberding v. Ill. Cent. Rr. Co., 346 U.S. 338, 340 (1953).
    \2\ E.g., Brown University, 342 NLRB No. 42 (2004) overruling New 
York University, 332 NLRB 1205 (2000). See also Pennsylvania Academy of 
Fine Arts, discussed in note 42, infra.
    \3\ E.g., Dana Corp., 352 NLRB No. 28 (2007) overruling Keller 
Plastics Eastern, Inc., 157 NLRB No. 55 (1966); Oakwood Care Center, 
343 NLRB No. 76 (2004) overruling M.B. Sturgis, 331 NLRB 1298 (2000); 
Truserve Corp., 349 NLRB No. 23 (2007) overruling Douglas-Randall, 
Inc., 320 NLRB 431 (1995); Crown Bolt, Inc., 343 NLRB No. 86 (2004) 
overruling General Stencils, 195 NLRB 1109 (1972). Cf. Haborside 
Healthcare, Inc., 343 NLRB 906 (2004) limiting Stevenson Equipment Co., 
174 NLRB 865 (1969).
    \4\ St. George Warehouse, 351 NLRB No. 42 (2007) overruling Lloyd's 
Ornamental & Steel Fabricators, Inc., 211 NLRB 217 (1974) (and its 
predecessors). The decision shifts the burden of proof on to the 
General Counsel to show due diligence in the employee's obligation to 
mitigate back pay for an employee dismissed for exercising her 
statutory rights. The Board relies on the proposition that the 
employee, not the employer, is in possession of that information. The 
Board does not note that in labor arbitration, where back pay for a 
wrongful discharge is the universal remedy and where it, too, is 
limited by a duty to mitigate, ``the burden of proving lack of 
diligence or an honest, good faith effort on the employee's part is on 
management.'' ELKOURI & ELKOURI, HOW ARBITRATION WORKS 1225 (Alan Ruben 
ed., 6th ed. 2003) quoting HILL & SINICROPI, REMEDIES IN ARBITRATION 
216 (2d ed. 1991). I.e., that the Board's longstanding rule merely 
reflected the accepted norm of industrial justice.
    \5\ Jones Plastic & Engineering Co., 351 NLRB No. 11 (2007) 
overruling Target Rock Corp., 324 NLRB 373 (1997).
    \6\ In Toering Electric Co., 351 NLRB No. 18 (2007), breaking new 
ground, the Board held that ``an applicant for employment is entitled 
to protection as a * * * [statutory] employee is someone genuinely 
interested in seeking to establish an employment relationship with an 
employer.'' Accordingly, in order to prove that an employer had a 
policy or practice of refusing to hire on the basis of union membership 
or activity the General Counsel must prove that an identifiable 
applicant would in fact have accepted to work. See supra note 29.
    \7\ See, e.g., William Corbett, The Narrowing of the National Labor 
Relations Act: Maintaining Workplace Decorum and Avoiding Liability, 27 
BERK. J. EMP. & LAB. L. 23 (2006).
    \8\ IBM Corp., 341 NLRB No. 148 (2004) overruling Epilepsy 
Foundation of Northeast Ohio, 331 NLRB 676 (2000). The disposition of 
this issue has reflected the political shifts in the composition of the 
Board since 1980. See Matthew Finkin, Labor Law by Boz--A Theory of 
Meyers Industries, Sears Roebuck & Co., and Bird Engineering, 71 IOWA 
L. REV. 155 (1985).
    \9\ North Hills Office Services, Inc., 345 NLRB No. 107 (2005).
    \10\ Holling Press, Inc., 343 NLRB No. 45 (2004). The dissent noted 
that the majority's reasoning confronted unequivocal precedent to the 
contrary, i.e., NLRB v. Peter Cailler Kohler Swiss Chocolate Co., 130 
F.2d 503 (2d Cir. 1942) (per Hand, J.) cited as authority in NLRB v. J. 
Weingarten, Inc., 420 U.S. 251 (1975). The majority responded to this 
criticism by ignoring these precedents.
    \11\ See generally Matthew Finkin, Disloyalty! Does Jefferson 
Standard Stalk Still?, 28 BERK. J. EMP. & LAB. L. 541 (2007).
    \12\ Five Star Transp. Inc., 349 NLRB No. 8 (2007).
    \13\ See, e.g., Petrochem Insulation v. NLRB, 240 F.3d 26 (D.C. 
Cir. 2001). To similar effect, see Wurtland Nursing & Rehab. Center, 
351 NLRB No. 50 (2007), in which the Board held that a petition signed 
by over half the employees stating their ``wish for a vote to remove 
the [incumbent] Union'' justified the employer's withdrawal of 
recognition of the union. The Board majority acknowledged that under 
well established precedent the demand for an election would not be 
sufficient to justify withdrawal; but here the demand was conjoined 
with a desire to remove the union--and that, the Board maintained, was 
dispositive. Why it should be so is not explained--for what would a 
demanded vote be about if not to remove the union?
    \14\ 351 NLRB No. 29 (2007).
    \15\ Sheet Metal Workers' v. NLRB, 491 F.3d 429 (D.C. Cir. 2007); 
Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 
2005).
    \16\ Susan McGolrick, Battista Says NLRB Did ``Very Credible Job'' 
of Meeting Goals During His Five-Year Term, DAILY LABOR REPORT No. 218 
(Nov. 13, 2007).
    \17\ Toering Electric Co., 351 NLRB No. 18 (2007) discussed further 
in the text accompanying notes 29--30, infra.
    \18\ NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 
(1990) (``This Court has emphasized often that the NLRB has the primary 
responsibility for developing and applying national labor policy.'' 
(citing Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500--01 (1978); NLRB 
v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); NLRB v. Truck 
Drivers, 353 U.S. 87, 96 (1957)). In Beth Israel Hospital the Court 
states:
    Because it is to the Board that Congress entrusted the task of 
``applying the Act's general prohibitory language in the light of the 
infinite combinations of events which might be charged as violative of 
its terms,'' that body, if it is to accomplish the task which Congress 
set of it, necessarily must have authority to formulate rules to fill 
the interstices of the broad statutory provisions.
    Beth Israel Hosp., supra, at 500--01 (quoting Republic Aviation 
Corp. v. NLRB, 324 U.S. 793, 798 (1945)). In Curtin Mathenson 
Scientific, the Court declared:
    This Court therefore has accorded Board rules considerable 
deference. See Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 
27, 42 (1987); NLRB v. Iron Workers, 482 U.S. 335, 350 (1978). We will 
uphold a Board rule as long as it is rational and consistent with the 
Act, Fall River, supra, at 42, even if we would have formulated a 
different rule had we sat on the Board, Charles D. Bonanno Linen 
Service, Inc. v. NLRB, 454 U.S. 404, 413, 418 (1982). Furthermore, a 
Board rules is entitled to deference even if it represents a departure 
from the Board's prior policy. See NLRB v. J. Weingarten, Inc., 420 
U.S. 251, 265--66 (1975) (``The use by an administrative agency of the 
evolutional approach is particularly fitting. To hold that the Board's 
earlier decisions froze the development of this important aspect of the 
national labor law would misconceive the nature of administrative 
decisionmaking.'') Accord, Iron Workers, supra, at 351.
    Curtin Mathenson, supra, at 786--87 (internal citations 
abbreviated) (emphasis added).
    \19\ Cf. Peter L. Strauss, On Resegregating the Worlds of Statute 
and Common Law, 1994 SUP. CT. REV. 429, 495 (``It is not merely the 
largeness of the change being effected, but also that accepting it will 
entail accepting that an agency can be empowered to change its 
mandate.'').
    \20\ 29 U.S.C. Sec.  151 (2000).
    \21\ Joan Flynn, A Quiet Revolution at the Labor Board: The 
Transformation of the NLRB, 1935--2000, 61 OHIO ST. L. REV. 1363 
(2000).
    \22\ Bernard Meltzer, Organizational Picketing and the NLRB: Five 
on a Seesaw, 30 U. CHI. L. REV. 78, 78 (1962).
    \23\ Flynn, supra note 21, at 1384.
    \24\ Compare Terry Bethel, Recent Decisions of the NLRB--The Reagan 
Influence, 60 IND. L.J. 227 (1984) with Lee Modjiska, The Reagan NLRB, 
Phase I, 46 OHIO ST. L.J. 95 (1985).
    \25\ Kevin Burkett, The Politicization of the Ontario Labour 
Relations Framework in the 1990s, 6 CANADIAN LAB. & EMP. L.J. 161 
(1998).
    \26\ James Brudney, Isolated and Politicized: The NLRB's Uncertain 
Future, 26 COMP. LAB. L. & POL'Y J. 221 (2005).
    \27\ Supra note 3.
    \28\ Id.
    \29\ Toering Electric Co., supra note 6. The characterization was 
made in the context of his stating that the Board does not serve its 
intended statutory role as neutral arbiter of disputes if it must 
litigate hiring discrimination charges filed on behalf of disingenuous 
applicants who intend no service and loyalty to a common enterprise 
with a targeted employer. [Emphasis added.]
    The Board also rejected any analogy to Title VII which is sometimes 
vindicated by ``testers'' who have no actual interest in the job. 
``Hiring discrimination under the [Labor] Act simply cannot occur 
unless the individual actually was seeking an employment opportunity 
with the employer.''
    This makes two fundamental mistakes. First, the Board's 
prosecutorial function is instigated by any person, including a morally 
repugnant person; it does not require that the charging party be 
injured in any way. The Board acts on the public's behalf, not on 
behalf of the charging party even if morally miscreant. Second, it is 
quite possible for an employer to maintain a policy or practice of 
discrimination in hire without there being an identifiable 
discriminatee, just as it is possible for an employer to have a policy 
against the hiring of women or minorities without the EEOC being able 
to identify an individual discriminatee. Consequently, Toering Electric 
Co. would hinder the General Counsel's ability to pursue Sec.  8(a)(1) 
complaints where testers have revealed an anti-union hiring policy that 
no disappointed applicant has been found to complain of.
    \30\ Clyde Summers, Politics, Policy Making, and the NLRB, 6 SYR. 
L. REV. 92, 97 (1954).
    \31\ Id. at 101.
    \32\ Id. at 100.
    \33\ Id. at 101.
    \34\ Id. at 102:
    Section 1 of Taft-Hartley, like the Wagner Act before it, finds 
that ``protection by law of the right of employees to organize and 
bargain collectively safeguards commerce from injury,'' and declares it 
``to be the policy of the United States to eliminate the causes of 
certain substantial obstructions from commerce * * * by encouraging the 
practice and procedure of full freedom of association.'' Section 7 
still guarantees the ``Right to self organization * * * to bargain 
collectively through representatives of their own choosing.''
    \35\ Id. at 103, (quoting NLRB Chairman Farmer, ``We intend to make 
a fetish of impartiality.'').
    \36\ DEREK BOK & JOHN DUNLOP, LABOR AND THE AMERICAN COMMUNITY 25 
(1970) (references omitted):
    Despite the determined campaigns by many managements to keep labor 
unions out of their plants, businessmen do not proclaim hostility 
toward the principle of unionism. Quite the contrary. If anything, 
executives are slightly more inclined than is the public as a whole to 
accept the legitimacy of unions and the employee's right to join the 
organization of his choice. * * *
    In part this attitude may reflect the strong belief among 
businessmen in individual freedom and the right to associate for lawful 
purposes. But many executives now concede, as they rarely did several 
decades ago, that unions can play a valuable role in protecting 
employees against abuses. To quote Lemuel Boulware, of General 
Electric, a management representative renowed for developing a ``hard 
line'' toward unions:
    We believe in the union idea. We think unions are here to stay. We 
think some among even the best of employers might occasionally fall 
into short-sighted or careless employee practices if it were not for 
the presence or distant threat of unions.
    \37\ E.g., Note, for example, the data set out below:

                               ANNUAL GROWTH IN U.S. PRODUCTIVITY AND WAGE LEVELS
                                             [1967-2002; Percentile]
----------------------------------------------------------------------------------------------------------------
                          Year                            Annual Productivity Growth  Average Annual Wage Growth
----------------------------------------------------------------------------------------------------------------
1967-73.................................................                        2.5                         2.5
1973-79.................................................                        1.2                         0.1
1979-89.................................................                        1.4                         0.9
1989-95.................................................                        1.5                         0.5
1995-2000...............................................                        2.5                         2.4
2000-02.................................................                        3.6                       -0.3
----------------------------------------------------------------------------------------------------------------
Source: Lawrence Michel, Jared Bernstein & Sylvia Allegretto, The State of Working America 2004/05, tbl. 2.1
  (2005).

    \38\ Matthew Finkin, Bearing the Burden of Decisions Made by 
Others: The Corporate Reallocation of Employee Risk in the United 
States, in PERSPEKTIVEN DER CORPORATE GOVERNANCE 501 (Ulrich Jurgens et 
al. eds., 2007).
    \39\ RICHARD BLOCK, JOHN BECK & DANIEL KRUGER, LABOR LAW, 
INDUSTRIAL RELATIONS AND EMPLOYEE CHOICE (1996). When the Canadian 
industrialist, Frank Stonach, urged his 18,000 employees to join the 
Canadian Auto Workers Union, the event was news-making. Ian Austen, 
Industrialist Urges Workers to Join Union, N.Y. TIMES, Oct. 16, 2007, 
at C-10.
    \40\ Most recently, THOMAS KOCHAN, RESTORING THE AMERICAN DREAM: A 
WORKING FAMILIES' AGENDA FOR AMERICA (2006). See also PAUL OSTERMAN, 
SECURING PROSPERITY: THE AMERICAN LABOR MARKET HOW IT HAS CHANGED AND 
WHAT TO DO ABOUT IT (1999).
    \41\ Among the more recent and thoughtful are Stephen Befort, Labor 
and Employment Law at the Millennium: A Historical Review and Critical 
Assessment, 63 B.C. L. REV. 351 (2002) and Charles Carver, The National 
Labor Relations Act Must Be Revised to Preserve Industrial Democracy, 
34 ARIZ. L. REV. 397 (1992); collections of papers in THE LEGAL FUTURE 
OF EMPLOYEE REPRESENTATION (Matthew Finkin ed., 1994); RESTORING THE 
PROMISE OF AMERICAN LABOR LAW (Sheldon Friedman et al. eds., 1994); and 
the earlier work of Paul Weiler summarized in his GOVERNING THE 
WORKPLACE (1990). As these remarks were being written I was informed 
that a petition was being drafted by Professors James Brudney and 
Cynthia Estlund to be circulated to the academic labor law community 
and presented to the Congress. I expect that their summary of the 
current state of affairs and their call for legislative reform would be 
concordant with the views expressed here.
    \42\ I doubt the Board was correct in holding the artists' models 
of the Pennsylvania Academy of Fine Arts to be ineligible to bargain 
collectively. Pennsylvania Academy of Fine Arts, 343 NLRB No. 93 
(2004). But surely something is fundamentally amiss when that question 
turns on whether they supply their own loin cloths and have discretion 
on how to position their arms. Id.
    \43\ RICHARD FREEMAN & JOEL ROGERS, WHAT WORKERS WANT 178--79 
(2006). This rises to 31% if the word ``union'' is omitted and 
respondents are asked if they want to be represented by an independent 
employee organization that negotiates with their employers.
    \44\ This is explored by Michael Gottesman, Rethinking Labor Law 
Preemption: State Laws Facilitating Unionization, 7 YALE J. ON REG. 355 
(1990).
    \45\ In FY2006, on average it took over two years for the Board to 
dispose of contested unfair labor practice cases.
    \46\ Over thirty years ago, the Committee on Labor and Social 
Security Legislation of the Association of the Bar of the City of New 
York, composed of leading practitioners on both the labor and 
management sides as well as academics, and chaired by one of the 
country's most prominent labor arbitrators, recommended the greater 
utilization of section 10(j) injunctions and the strengthening of the 
remedial power of the Board ``especially with respect to discriminatory 
discharge and refusal to bargain'' by authorizing the Board to impose 
civil money penalties. Committee Report, National Labor Relations Board 
Remedies: 10(j) Injunctions, Make-Whole Orders and Civil Monetary 
Penalties, 29 THE RECORD OF THE ASSOCIATION OF THE BAR OF THE CITY OF 
NEW YORK 674, 686 (1974). That was thirty-three years ago and the 
committee's proposals remain as immanently sensible and even more 
urgently needed today.
                                 ______
                                 
    Chairman Andrews. Thank you very much, Professor. We 
appreciate that.
    Ms. Ryland, welcome to the committee. You are recognized.

    STATEMENT OF FELIZA RYLAND, HOUSEKEEPER, OLD STAR RESORT

    Ms. Ryland. Good morning, committee chair. I apologize if I 
don't pronounce everybody's name. And my name is Feliza Ryland. 
Today I think I have my testimony, and I work as a housekeeper 
at the Old Star Resort at Disney World in Orlando, Florida. But 
for 12 years since 1984 until 1996, I worked as a room 
attendant at the Grosvenor Resort.
    I thank you for this opportunity to bring my testimony to 
all of you about what happened, you know, when my coworkers and 
I tried to--I am sorry about that--win a fair deal at work. 
More of the point is what did happen.
    I complained to the National Labor Relation Board. Our 
case, the Grosvenor Resort is a matter of public record. More 
than 11 years ago we had a problem with our employer on 
September 27, 1996 after many months of fighting for a fair 
contract and getting nowhere, my coworkers and I went out on 
unfair labor practice strike and began picketing to protest our 
employer's refusal to bargain in good faith.
    Just a few days later on September 30th, 44 of us were 
fired. We continued picketing to protest the firing and get our 
jobs back and get a fair deal in our contract. It takes a lot 
of you to walk out.
    But after several weeks, it became clear that the hotel was 
refusing to rehire us. And it was a hardship to go so many 
weeks without a paycheck or benefits.
    I needed that paycheck, that income for my family. So most 
of us looked and found a new job.
    I applied and soon found work at another hotel. Then about 
8 weeks after that, went to work for Disney.
    Government records showed what happened to our complaints 
about our employer's unfair labor practice. In 1988, the judge 
agreed our employee had acted in bad faith in illegally firing 
us and ordered management to offer us our jobs back and to give 
us back pay. I did not receive any back pay.
    In 2001, 5 years after the illegal firing, the NLRB agreed 
with the judge and ordered the same thing. I did not receive 
any back pay.
    In 2002, a federal court enforced the NLRB's decision. I 
did not receive any back pay still.
    In 2005, the judge held back pay hearing and ordered 
Grosvenor to pay me $10,000 in back pay. I did not receive any 
back pay.
    In September 2007, the NLRB issued a decision reducing my 
back pay by about $2,400 because, according to them, I didn't 
leave the picket line and get a new job fast enough. That is my 
case. And my other coworker--according to them, he is not 
eligible to get anything, not a single penny because he went 
too quick to work and makes too much money. So he doesn't 
qualify to receive any benefits.
    It has now been more than 11 years since I was unlawfully 
fired. And I am still waiting to see the back pay, still 
waiting to see the justice.
    This is wrong. Workers who are fired for trying to organize 
and bargain for a better life have been mistreated for 
exercising their rights. It should not take so long to get 
justice.
    And the government should be protecting workers, not 
punishing them for exercising their rights. Because that is how 
I feel at this moment, to be punished for what I have done and 
the employer--they are taking their side.
    I don't know if I will ever see that back pay. It all 
happened so long ago. It doesn't feel quite real, but I still 
hope that bringing our complaints to the government might help 
some of my fellow workers in the future by making employers 
treat their employees more fairly. For that to happen, my 
government needs to do a lot better and a lot more.
    Thank you very much for the chance to be here today. And I 
will be happy to answer any questions to the best of my 
knowledge. Thank you.
    Chairman Andrews. Thank you, Ms. Ryland, very, very much 
for your excellent statement. Very well done.
    Ms. Ryland. Thank you.
    [The statement of Ms. Ryland follows:]

        Prepared Statement of Feliza Ryland, Member, UNITE HERE

    Good Morning, Chairman Kennedy, Chairman Miller, Subcommittee 
Chairs Murray and Andrews, and Members of the Subcommittees. My name is 
Feliza Ryland, and I am a proud member of UNITE HERE. Today, I work as 
a housekeeper at the Old Star Resort, a Disney hotel at Disney World in 
Orlando, Florida, but for twelve years, from 1984 until 1996, I worked 
as a room attendant at the Grosvenor Resort hotel. I thank you for this 
opportunity to tell the Subcommittees about what happened when my 
coworkers and I tried to win a fair deal at work, and what happened--or 
more to the point what did not happen--with our complaints to the 
National Labor Relations Board.
    Our case, The Grosvenor Resort, is a matter of public record. More 
than 11 years ago we had problems with our employer. On September 27, 
1996, after many months of fighting for a fair contract and getting 
nowhere, my coworkers and I went out on an unfair labor practices 
strike and began picketing to protest our employer's refusal to bargain 
in good faith. I was a shop steward, so I knew our rights.
    Just a few days later, on September 30, 44 of us were fired. We 
continued picketing everyday, to protest the firings, get our jobs 
back, and get a fair deal in our contract. It takes a lot out of you. 
But after several weeks, it became clear that the hotel was refusing to 
rehire us, and it was a hardship to go so many weeks without a paycheck 
or benefits. I needed that paycheck, that income for my family. So most 
of us looked for and found new jobs. I applied for and soon found work 
at another hotel, then about eight weeks after that, went to work for 
Disney.
    Government records show what happened to our complaints about our 
employer's unfair labor practices:
     In 1998, the judge agreed our employer had acted in bad 
faith and illegally fired us. It ordered management to offer us our 
jobs back, and to give us backpay. I did not receive any backpay.
     In 2001, five years after the illegal firings, the NLRB 
agreed with the judge and ordered the same thing. I did not receive any 
backpay.
     In 2002, a federal court enforced the NLRB decision. I did 
not receive any backpay.
     In 2005, the judge held backpay hearings, and ordered 
Grosvenor to pay me about $10,000 in backpay. I did not receive any 
backpay.
     In September, 2007, the NLRB issued a decision reducing my 
backpay by about $2,400, because according to them, I didn't leave the 
picket line and get a new job fast enough.
    It has now been more than 11 years since I was unlawfully fired, 
and I am still waiting to see the backpay, still waiting to see 
justice.
    This is wrong. Workers who are fired for trying to organize and 
bargain for a better life have been mistreated for exercising their 
rights. It should not take so long to get justice. And the government 
should be protecting workers, not punishing them for exercising their 
rights under the law. It is wrong for me to be penalized for exercising 
my rights while my employer, who broke the law, is rewarded. Requiring 
a worker who has been fired to look for a new job instantly, without 
trying to get their job back, is like surrendering without a protest, 
without a fight. It is like having no rights in the first place.
    I don't know if I will ever see that backpay--it all happened so 
long ago, it doesn't feel quite real--but I still hope that bringing 
our complaints to the government might help some of my fellow workers 
in the future by making employers treat their employees more fairly. 
For that to happen, my government needs to do a lot better.
    Thank you again for the chance to be here today, and I will be 
happy to answer any questions you may have.
                                 ______
                                 
    Chairman Andrews. Mr. Cohen, welcome back to the committee. 
It is good to see you.

STATEMENT OF CHARLES COHEN, PARTNER, MORGAN, LEWIS AND BOCKIUS, 
       LLP, FORMER MEMBER, NATIONAL LABOR RELATIONS BOARD

    Mr. Cohen. Thank you very much, Mr. Chairman. And thank you 
very much for the kind introduction.
    Mr. Chairman and Ranking Member Kline, I appreciate the 
opportunity to be here and to testify today. I might note that 
in my background also immediately after law school, I worked at 
the National Labor Relations Board for 9 years in numerous 
capacities and had the privilege of holding elections, 
investing unfair labor practice cases, trying unfair labor 
practice cases, et cetera. It was invaluable experience to me.
    Of course, I am not currently a board member and have not 
had occasion to study the arguments in the records and the 
cases currently under scrutiny. I, therefore, do not know how I 
might have voted on any particular case. What I hope to add to 
this hearing is perspective on the board's decision-making 
processes and on how it is that we have reached this juncture 
where the rhetoric has gotten, in my estimation, out of 
proportion.
    At the outset, I think it is important to note that 
concerns expressed by organized labor over NLRB decision-making 
are not new. In the 1980s, unions similarly complained about 
decisions issued by boards composed of a majority of Republican 
nominated members. Organized labor claimed that the board's 
decisions led to the destruction of well-established employee 
rights.
    Likewise, in the 1990s, it was business that complained 
about the pro-union tilt of the decisions of the majority 
Democratic nominated members. Based on my decades of experience 
in this field, I do not believe that the board's recent 
decisions constitute the sea of change that has been claimed.
    Reversals of precedent are, indeed, destabilizing. But that 
has not become more common in recent times.
    Recognizing that this board is more conservative than the 
Clinton board, it has carried out its responsibilities in a 
manner consistent with the established practice over the last 
few decades. Further, the board's decisions have continued to 
hold true to the intent of the act.
    I believe the notion that the board issued an extraordinary 
numbers of decisions in September designed to punish unions has 
been sufficiently debunked, and I won't spend any additional 
time on it. By far, the most significant decision in the 
September grouping is Dana Metaldyne. This is an illustration 
of the board reacting to a very significant change in union 
organizing, card check, and neutrality agreements.
    Dana Metaldyne did not proscribe voluntary recognition of 
unions. It did not prohibit employer and the union from 
bargaining while individuals are waiting for an NLRB secret 
ballot election. While some might quibble over the need for and 
the wording of the notice that the NLRB has prescribed, it is 
certainly true that this procedure provides a mechanism for 
employee free choice by a government-conducted secret ballot 
election if the employees then petition the NLRB and ask for 
that election.
    This concludes my prepared oral testimony. I look forward 
to any questions you might have.
    [The statement of Mr. Cohen follows:]

        Prepared Statement of Charles I. Cohen, Partner, Morgan,
                          Lewis & Bockius LLP

    Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and 
Ranking Member Kline, and Members of the Subcommittees, I am pleased 
and honored to be here today. Thank you for your kind invitation.
    By way of introduction, I was appointed by President Clinton, 
confirmed by the Senate, and served as a Member of the National Labor 
Relations Board from March 1994 until my term expired in August 1996. 
Before becoming a Member of the Board, I worked for the NLRB in various 
capacities from 1971 to 1979 and as a labor lawyer representing 
management in private practice from 1979 to 1994. Since leaving the 
Board in 1996, I have returned to private practice and I am a Partner 
in the firm of Morgan, Lewis & Bockius LLP. I am a member of the Labor 
Relations Committee of the U.S. Chamber of Commerce, and Chair of its 
NLRB subcommittee. I am testifying today in my personal capacity.
    As I understand it, the purpose of today's hearing is to provide a 
forum to examine certain recent Board decisions and organized labor's 
concerns that these decisions have adversely impacted employees' 
rights.
    Of course, I am not currently a Board member and have not had 
occasion to study the arguments and the records in the cases currently 
under scrutiny. I, therefore, do not know how I might have voted on any 
particular case. What I hope to add to this hearing is perspective on 
the Board's decision-making processes and on how it is that we have 
reached this juncture where the rhetoric has gotten, in my estimation, 
out of proportion.
    At the outset, I think it is important to note that concerns 
expressed by organized labor over NLRB decision-making are not new. In 
the 1980's, unions similarly complained about decisions issued by 
Boards comprised of a majority of Republican-nominated members. 
Organized labor claimed that the Board's decisions led to the 
destruction of well-established employee rights. Likewise, in the 
1990's, it was business that complained about the pro-union tilt of the 
decisions of the majority Democrat-nominated members. In fact, a 
serious attempt was made to severely diminish the budget of the NLRB.
    The National Labor Relations Act, as amended, includes two 
competing principles which invite considerable tension. Employees have 
the right to organize and to engage in collective bargaining. Once a 
union has been freely chosen, the practice and procedure of collective 
bargaining is to be encouraged. But, since 1947, employees also have 
had the right to refrain from union or concerted activities. This 
additional right puts a premium on how unions come to be recognized as 
the exclusive representative of all bargaining unit employees--whether 
they want a union or not.
    Based on my decades of experience in this field, I do not believe 
that the Board's recent decisions constitute the sea change claimed by 
unions. Reversals of precedent are destabilizing, but that has not 
become more common in recent times. Recognizing that this Board is more 
conservative than the Clinton Board, it has carried out its 
responsibilities in a manner consistent with the established practice 
over the last few decades. Further, the Board's decisions have 
continued to hold true to the intent of the Act.
The NLRB's Operation, Practice and Procedure
    Organized labor has taken issue with the number of decisions issued 
by the Board in September 2007. The unions seem to suggest that the 
issuance of 61 September 2007 decisions is evidence of an attempt by 
certain Republican-nominated Board members to rush to issue business-
friendly decisions. In reality, the number of September decisions was 
not extraordinary and largely is attributable to such benign factors as 
the Board's decision-making processes, the close of the Board's fiscal 
year, and the possible near term loss of three Board members.
    The Board, like all federal government entities, operates on a 
fiscal year basis, which ends on September 30 of each year. 
Traditionally, the Board sets goals at the beginning of the year for 
the number of cases it hopes to decide in any given year. Although the 
Board has the entire year to issue decisions, the most significant 
amount of activity often occurs at the end of the fiscal year, in a 
final push to meet the previously established goals. Cases posing 
relatively routine issues are decided and released sooner. Difficult 
and older cases take longer simply because they are more difficult. 
Thus, the frenzy of activity at the end of the fiscal year in September 
is not unusual. This Board has issued more than 100 decisions in three 
of the four previous Septembers. Nor is it unique to Republican-
majority Boards. For example, a Democratic-majority Board issued 
approximately 70 decisions in September 1999 and approximately 68 
decisions in September 2000.
    The potential loss of three Board members, in the near future, also 
may have influenced the Board's September productivity. As you know, at 
its full complement, the Board is comprised of five members. Being at 
full strength--which does not occur as frequently as it should given 
the difficulties in the nomination and confirmation process--aids the 
orderly issuance of decisions. New Board members typically take an 
extended period of time before they issue decisions in difficult cases. 
The term of Chairman Battista expires on December 16, 2007, and Members 
Kirsanow and Walsh are currently serving recess appointments that will 
expire when this session of Congress adjourns. It is prudent, 
therefore, to seek to issue as many decisions as possible while still 
at full strength.
The Board's Alleged Destruction of Employees' Rights
    Organized labor has complained that the Bush Board has issued an 
inordinate number of reversals of prior Board decisions. The unions 
contend that these reversals disproportionately favor employers to the 
disadvantage of employees. As I stated before, reversals of precedent 
are troubling. The number of reversals, however, is not extraordinary. 
Under the Clinton Board, for example, the Democratic-majority reversed 
more than 50 prior Board decisions compared with the less than 25 
reversals issued by the Bush Board.
    Organized labor also has directed its complaints at the merits of 
the Board's recent decisions, claiming that these decisions favor 
employers and not employees--or better said, favor employers and not 
unions. Again, this is not necessarily the case. Rather, these 
decisions tend to be, with one important exception, extensions of well-
established labor law principles formed long before the Bush Board took 
control.
The Board's Decision in Dana Corp. and Metaldyne Corp.
    By far, the most significant decision of the group is the Board's 
recent decision in Dana Corp. and Metaldyne Corp., 351 NLRB No. 28 
(September 29, 2007). In this case, a 3-2 majority of the Board 
modified its recognition-bar doctrine and held that an employer's 
voluntary recognition of a union does not bar a decertification 
election petition or rival union election petition filed within 45-days 
of a notice of recognition. Previously, the Board had held that 
voluntary recognition barred a decertification election petition or a 
rival union's election petition for a ``reasonable period of time''--in 
reality, a one year period. Although this holding is a change in a 
highly technical area of the law, some background is necessary.
    Historically, voluntary recognition by an employer of a union has 
been lawful, but organizing had not been a top down process emanating 
from employer agreements. This changed in the last decade as a result 
of unions pressuring for, and often receiving, card check and 
neutrality agreements. Indeed, one of the highest priorities of unions 
today is to obtain agreements from employers that would allow the union 
to become the exclusive bargaining representative of a group of 
employees without there ever being an NLRB-supervised election. As a 
consequence, the Board's relevance through its traditional role of 
conducting secret ballot elections has been on the wane. See Charles I 
Cohen, Neutrality Agreements: Will the NLRB Sanction Its Own 
Obsolescence?, The Labor Lawyer (Fall 2000); Charles I. Cohen & 
Jonathan C. Fritts, The Developing Law of Neutrality Agreements, Labor 
Law Journal (Winter 2003); Charles I. Cohen, Joseph E. Santucci, Jr., & 
Jonathan C. Fritts, Resisting Its Own Obsolescence--How the National 
Labor Relations Board Is Questioning the Existing Law of Neutrality 
Agreements, 20 Notre Dame Journal of Law, Ethics & Public Policy 521 
(2006), available at http://www.morganlewis.com/pubs/
NotreDameJournalResistingObsolescence.pdf. Despite considerable 
rhetoric to the contrary, it is the view of the Supreme Court, and my 
own personal view as well, that Board-conducted secret ballot elections 
remain the most reliable indicator of employee choice. Against this 
backdrop comes the Dana Corp./Metaldyne Corp. case.
    As another preliminary matter, it is important to note what the 
Board's decision in Dana Corp./Metaldyne Corp. did not do. It did not 
proscribe voluntary recognition of unions. And, it did not prohibit 
immediate bargaining between the employer and the voluntarily 
recognized union.
    In determining that a 45-day window was appropriate for the filing 
of competing petitions, the Board majority found that an immediate 
insulation period for employees seeking to have an election was not 
necessary when an employer voluntarily recognized a union. During this 
45-day time period, employees can decide whether they prefer to 
participate in a Board-conducted election, instead of relying on the 
voluntary recognition alone. Ultimately, the Board concluded that the 
recognition bar doctrine did not provide sufficient protection for 
employees' right to a free choice of a representative--or no 
representative. As a result of this decision, for the recognition and 
contract bars to be effective, employers must now notify the Board in 
writing of any voluntary recognition, receive an official Board notice, 
and post it for the 45-days. While some might quibble over the need 
for, and the wording of, the notice, it is certainly true that this 
procedure provides a mechanism for employee choice on this issue.
    It is beyond the scope of this testimony to re-argue the merits of 
the Employee Free Choice Act--which failed to pass Congress earlier 
this year. See Charles I. Cohen, Statement on ``Employee Free Choice 
Act: `Strengthening America's Middle Class Through the Employee Free 
Choice Act,'' before the House Committee on Education and Labor: 
Subcommittee on Health, Employment, Labor, and Pensions (Feb. 8, 2007). 
But the irony is nonetheless present. At a time when a major push was 
made to eliminate secret ballot elections, the Board has reaffirmed the 
importance of those elections.
    Regardless of one's view of the wisdom of the Board's Dana Corp./
Metaldyne Corp. decision, it would be a mistake to brand it pro-
employer. The decision did not prohibit voluntary recognition 
agreements; it merely guaranteed employees the right to a secret ballot 
election to overturn those agreements. Unions and employers are still 
free to reach these agreements and engage in collective bargaining 
absent an employee vote to the contrary. Some employers support 
voluntary recognition agreements and are disappointed by the Board's 
decision to deny bar quality unless they comply with the posting 
requirements. In any event, it is important to recognize that Section 7 
rights belong exclusively to employees--not to unions or employers.
Other Decisions
    From the outcry over the September 2007 decisions, one would think 
that the Board that the Board issued 61 anti-union decisions. This is 
not the case. In fact, in a majority of the unfair labor practice 
decisions issued in September, the Board found at least one violation 
of the Act by the employer involved.
    Lost in the labor criticism of the Board is a significant pro-union 
decision issued in August 2007. The Board's decision in Provena 
Hospitals, 350 NLRB No. 64 (Aug. 16, 2007) is important to employers 
whose employees are already represented by a union. There, the Board 
continued to disregard the decisions of the Court of Appeals for the 
District of Columbia and the Seventh Circuits that require use of the 
``contract coverage standard,'' and instead continued to apply its 
unworkable ``clear and unmistakable waiver'' standard. Chicago Tribune 
Co. v. NLRB, 974 F.2d 933 (7th Cir. 1992); Dept.of the Navy v. FLRA, 
962 F.2d 48 (D.C. Cir. 1992); and NLRB v. United States Postal Service, 
8 F.3d 832 (D.C. Cir. 1993). Simply stated, this issue relates to 
whether a collective bargaining agreement must ``clearly and 
unmistakably waive'' a union's right, or whether the employer, having 
bargained a contract, can argue that the language in the collective 
bargaining agreement demonstrates that the parties have bargained about 
a subject and have a subsequent dispute resolved by an arbitrator. It 
is well accepted that the ``contract coverage'' standard is an easier 
burden for employers to meet. Yet, notwithstanding the clear 
opportunity to make a favorable change for employers, the Bush Board 
notably declined to adopt this change.
    In another recent decision, Kravis Center for the Performing Arts, 
351 NLRB No. 19 (Sept. 28, 2007), the Board reached another pro-union 
outcome. In Kravis, the Board relied on the U.S. Supreme Court's 
decision in NLRB v. Fin. Inst. Emp. of Am., Local 1182 (Seattle-First), 
475 U.S. 192 (1986), and concluded that a lack of a vote by union 
members to be represented by a successor union did not alleviate the 
employer's duty to bargain with the union. Applying the new Seattle-
First standard, the Board determined that a union merger or affiliation 
does not have to be approved by a vote and the lack of a vote does not 
create a question concerning representation sufficient to support a 
withdrawal of recognition. Given the fact that union mergers have 
become commonplace these days, this is a significant case.
Conclusion
    This concludes my prepared oral testimony. I look forward to any 
questions you might have, but before that, I would again like to thank 
the Subcommittee for inviting me here today.
                                 ______
                                 
    Chairman Andrews. Thank you, Mr. Cohen.
    Mr. Hiatt, welcome to the committee. It is good to have you 
here.

         STATEMENT OF JONATHAN HIATT, GENERAL COUNSEL,
                            AFL-CIO

    Mr. Hiatt. Thank you very much, chairs and members of the 
subcommittees. In my written testimony, I tried to show why the 
Bush administration's stripping of worker protections over the 
past several years with its latest decisions in September 
doesn't simply reflect the proverbial swing of the pendulum 
that at times in the past has characterized NLRB case law from 
one administration to the next. So I would like to use my time 
now to offer just a few examples of what the impact of these 
cases is likely to be on the ground among the workers.
    Let me start with the Dana case and the board's rewriting 
of the rules on voluntary recognition, which, as you know, has 
been on the books since the law was enacted and has until now 
been viewed by the board and the courts as a perfectly 
acceptable alternative to NLRB certification. Indeed, in 2003, 
Chairman Battista himself stated in a case called Terracon that 
Senator Kennedy referred to that its holding in that case was 
consistent with the board's established objective of promoting 
voluntary recognition in order to effectuate the act's purpose 
of promoting collective bargaining.
    Because the board's election procedures have become so 
confrontational, so easily manipulated by any well-advised 
employer, and so delay-ridden, more and more unions and workers 
have indeed been avoiding the board entirely and seeking 
voluntary recognition. This incidentally explains a good deal 
about Chairman Battista's selective use of statistics.
    Little wonder that the board is closer to meeting its 
quotas on deciding cases when you consider the enormous 
reduction in both unfair labor practice cases and election 
cases that are brought to the board anymore. In any event, 
recognizing this trend and noting that workers were having 
increased success with the alternative means of achieving 
unionization, this board is now determined to make it as hard 
as possible to obtain union recognition, even where a union and 
employer and a majority of the workers are all in agreement. So 
much for the avowed philosophy of nongovernmental interference 
and deferral to private dispute resolution.
    Add to this the shameless hypocrisy when majority petitions 
or cards are described by the board in the Dana case as 
inherently unreliable, as susceptible to group pressure, as 
admittedly inferior to the election process when workers are 
trying to bring in a union, but then on the very same day are 
told by this same agency in the Wurtland case that none of 
these concerns--none of these are concerns when the question is 
getting rid of their union, that the signature method there 
constitutes ``objective proof of the employees' withdrawal of 
support for the union and that an NLRB election is not 
necessary.''
    And how do we explain why the government will now start 
posting notices informing a minority of the workforce of their 
rights to seek to undo the voluntary recognition and how to go 
about it without any corresponding posting of affirmative 
rights to join or form unions under the act? Mr. Cohen may call 
this quibbling. I suggest this will have a major impact.
    As a second example, consider the area of remedy. It is 
already hard enough to give assurances to workers that if they 
stick their necks out in a union campaign and get fired for it, 
they will be reinstated with back pay. Reinstatement typically 
comes 2 to 3 years later and with an average, as Senator 
Kennedy said, of about $3,600 in back pay.
    But now after the board's Grosvenor Resort's and St. George 
Warehouse decisions, even these explanations are put in 
question. In the former, when workers were unlawfully fired and 
picketed for 2 weeks in Ms. Ryland's work place in order to get 
their jobs back, the board ruled that no back pay should be 
awarded for those 2 weeks because to do so would be to reward 
idleness.
    And in the second case, the board has reversed decades of 
precedent and said that from now on the burden will be on the 
worker, that is the discrimination victim to prove adequate 
mitigation in seeking alternative employment in order to 
collect back pay. Until now the wrongdoer employer had the 
burden of showing that those efforts were not sufficient.
    Already one in four employers faced with union campaigns 
fire lead workers for the chilling effect that it has on other 
workers contemplating getting involved. What more incentive 
does the average employer now need to see this anti-union 
tactic as a miniscule cost of doing business, one that comes 
with the Bush board's seal of approval?
    Finally, a third example of real world impact will be on 
workers' rights to bargain collectively and strike when 
necessary. In Jones Plastic, the board has handed employers a 
roadmap to deny employment to returning strikers. In the past, 
it was well-settled that to be considered permanent 
replacements who would be allowed to continue working in place 
of strikers after a strike had ended there would have to be a 
mutual understanding ahead of time that the replacements were, 
in fact, permanent.
    With this new decision, the board has now declared that 
even if an at-will employee signed an agreement acknowledging 
that he or she can be terminated at any time with or without 
cause, they can still be considered permanent for purposes of 
denying reinstatement to returning strikers. Given Chairman 
Battista's assertion that the act's central purpose no longer 
calls for the board to facilitate employees' opportunity to 
organize unions in order to promote collective bargaining, 
notwithstanding pronouncements directly to the contrary by the 
U.S. Supreme Court in the American Hospital Association v. NLRB 
case in 1991 and by numerous courts of appeal as well, it is 
sadly not surprising that this board has moved the law in a 
direction so hostile to worker rights. It is time, however, for 
Congress to step in and correct the course.
    Thank you very much.
    [The statement of Mr. Hiatt follows:]

  Prepared Statement of Jonathan P. Hiatt, General Counsel, American 
 Federation of Labor and Congress of Industrial Organizations (AFL-CIO)

    Chairmen and members of the subcommittees, thank you for inviting 
me to testify before your committees on the impact of recent decisions 
by the National Labor Relations Board on the working men and women of 
this country.
    My name is Jonathan Hiatt, and I am General Counsel to the American 
Federation of Labor and Congress of Industrial Organizations (AFL-CIO), 
which is a voluntary federation of 55 national and international labor 
unions. Members of unions affiliated with the AFL-CIO teach and care 
for our children, build our country's infrastructure and construct its 
skyscrapers, nurse us in hospitals and rehabilitation centers, drive 
the buses we travel on and the trucks that bring us food and other 
essentials, entertain us with music and Broadway shows, keep us safe in 
our communities and come to our rescue in emergencies, report our news, 
grow our food, take care of the planes--and us--when we fly to our 
destinations safely, expand our telecommunication capabilities, and 
provide our public services. The AFL-CIO was created in 1955 by the 
merger of the American Federation of Labor and the Congress of 
Industrial Organizations.
    Since its founding, the AFL-CIO and its affiliate unions have been 
the single most effective force in America for enabling working people 
and their families to build better lives and futures. The U.S. Census 
Bureau data shows that workers with unions still make on average 29% 
more than their non-union counterparts; they still have a 73% to 16% 
advantage in having access to a guaranteed employment based pension; 
they still have a 92% to 68% advantage over non-union workers in access 
to at least some employer-paid health insurance. It is widely 
recognized that giving workers the right to bargain collectively is the 
best way to establish and maintain a middle class--and that this is in 
the economic interests of society as a whole. For these reasons, the 
National Labor Relations Act (``the Act'') was enacted in 1935 to 
protect the rights of workers to form and join unions and bargain for 
better working conditions.
    Indeed, the explicit purpose of the Act is to ``encourag[e] the 
practice and procedure of collective bargaining and * * * protect[] the 
exercise by workers of full freedom of association, self-organization, 
and designation of representatives of their own choosing, for the 
purpose of negotiating the terms and conditions of their employment or 
other mutual aid or protection.'' 29 U.S.C. Sec. 151. The Act further 
charges the Members of the National Labor Relations Board with 
adjudicating cases in accordance with this expressed policy.
    Meanwhile, however, the current Labor Board is no longer serving 
these noble goals. Shamefully, it has departed from its statutory 
responsibility and utterly abdicated its role as protector of worker 
rights. In decision after decision, the Board has denied workers the 
very protections it is supposed to guarantee.
    Since its installation in 2002, the Bush Administration's Labor 
Board has embarked on a systematic and insidious effort to radically 
overhaul our federal labor law and its regulation of labor relations in 
the private sector. Its decisions are not merely a pendulum swing or a 
course correction at times characteristic of changes in political 
administrations. Rather, they evince a calculated effort to make 
fundamental changes to our nation's national labor law--changes that it 
is aggressively accomplishing without any Congressional action 
whatsoever.
    In case after case, this Board has turned the Act on its head by 
narrowing its coverage, withdrawing its protections, and weakening its 
already ineffective remedies. These efforts attracted national 
attention in September of this year when the Board issued 61 decisions, 
approximately 20% of its annual total, most of which reflect a 
transparent anti-worker, anti-union and anti-collective bargaining 
bias, as described in the case summaries attached to my testimony.
    These September decisions were by no means the first time this 
Board has been accused of deciding cases in order to undermine workers' 
rights. Noted labor scholar Theodore St. Antoine warned in 2005 that 
this Board was ``resolving the doubts in borderline cases in the wrong 
direction'' and voiced his concern that the ``cumulative effect'' is 
that ``[a] multitude of smallish nibbles can add up to a large bite and 
eventually to a badly chewed--if not eviscerated--organism.''\1\ His 
warning was echoed by Professor James J. Brudney, Moritz College of Law 
at Ohio State University, who observed that the Agency's autonomy has 
``been associated not with making the NLRA effective or adaptable to 
changed circumstances but rather with the Act's diminished relevance or 
applicability to the modern American workplace.''\2\
    Now, however, this Board's rulings can no longer be described as 
``smallish nibbles.'' Indeed, its decisions have significantly narrowed 
worker protections while expanding the scope of anti-union conduct 
lawfully available to management; seriously limited the Act's coverage 
by directly and indirectly eliminating whole segments of the workforce 
from its definition of ``employee;'' and restricted its notoriously 
weak remedies by making it even less expensive and less burdensome for 
employers to violate the law. The bottom line is that fewer workers 
have fewer protections as this Board strips away the rights guaranteed 
by the National Labor Relations Act and squanders the national policies 
it enshrines.
    Through its decisions, this Board has redirected the course of the 
Act away from its original purposes of fostering workplace democracy 
and redressing economic inequality and, instead, toward a regulatory 
regimen that elevates the rights of employers seeking to establish 
union-free workplaces over the rights of workers who want to have a 
voice on their job and a seat at the bargaining table.
    In September alone, in a number of highly divided, partisan 
decisions, dubbed the ``September massacre,'' the Board has:
     Made it significantly harder for workers who were 
illegally fired or denied employment to recover backpay. St. George 
Warehouse, 351 NLRB No. 42 (2007); The Grosvenor Resort, 351 NLRB No. 
86 (2007); Domsey Trading Corp., 351 NLRB No. 33 (2007)
     Made it a certainty that employers who violate the Act 
will incur only the slightest monetary loss and be required to 
undertake as little remediation as possible. Intermet Stevensville, 351 
NLRB No. 94 (2007); Albertson's, Inc., 351 NLRB No. 21 (2007)
     Made it harder for workers to achieve union recognition 
without being forced to endure the hostile, divisive, delay-ridden NLRB 
representation process, Dana Corporation, 351 NLRB No. 28 (2007), while 
at the same time doing just the opposite for employers who wish to get 
rid of an incumbent union. Wurtland Nursing & Rehabilitation Center, 
351 NLRB No. 50 (2007)
     Made it easier for employers to deny jobs to workers who 
have exercised their legal right to strike. Jones Plastics & 
Engineering, 351 NLRB No. 11 (2007)
     Made it easier for employers to file lawsuits in 
retaliation for protected union activities and to punish workers and 
their unions for their lawful, protected conduct. BE&K Construction, 
351 NLRB No. 29 (2007)
     Made it easier for employers to discriminate against 
employees and job applicants who are also union organizers even though 
the U.S. Supreme Court has specifically held that such worker are 
employees entitled to the Act's protections. Toering Electric Co., 351 
NLRB No. 18 (2007); Oil Capital Sheet Metal, Inc., 349 NLRB No. 118 
(2007)
    These and other recent Board decisions attack the most fundamental 
aspects of workers' rights under the Act. By overruling precedent, 
changing the rules, and misapplying existing precedent, this Board has 
made it considerably more difficult for workers to form unions and 
bargain collectively to improve their working conditions; has withdrawn 
basic protections from workers who seek to strike or engage in other 
protected activities with their co-workers; has excluded yet more 
workers from the Act's coverage; has reduced its protections by giving 
employers more leeway to spy on, coerce and interfere with workers' 
union activities while restricting workers' ability to solicit union 
support; and has emboldened employers to violate workers' rights by 
weakening the Act's already miserably inadequate remedies.
Undermining Worker Organizing
    This Board's efforts to dismantle worker protections come at a time 
when the right to organize is more and more under attack and they 
further entrench the ``culture of near-impunity that has taken shape in 
much of U.S. labor law and practice.''\3\ The numbers paint a stark and 
compelling picture of what workers face when they try to form a union. 
During organizing campaigns, more than one-fourth of employers 
discharge workers for union activity; more than half threaten a full or 
partial shutdown of their company if the union effort succeeds; and 
between 15 and 40 percent make illegal changes to wages, benefits, and 
working conditions, give bribes to those who oppose the union, and/or 
spy on union activists.\4\
    As a direct result of this Board's failure to protect workers' 
participation in its representation process, unions have moved away 
from the NLRA's delay-ridden procedures, with its endless opportunities 
for employer coercion and interference, in favor of voluntary 
recognition by employers.\5\ The Board's response has been to take aim 
and fire. In the crosshairs is the decades-old practice of voluntary 
recognition,\6\ a path to unionization that has been approved by the 
both U.S. Supreme Court and Congress and that is ensconced in the very 
language of the Act.\7\ This effort to dismantle the voluntary 
recognition process has been advocated and funded almost exclusively by 
the National Right to Work Legal Defense Foundation; its goal is to 
force workers back to the Board if they want a voice on the job, 
mandating a procedure that manifestly does not work for workers--where 
employers control the process and where their intense, unrelenting 
resistance to organizing efforts is either condoned or, because of 
delay and weak remedies, effectively tolerated.
    On September 29 the Board stripped voluntary recognition of long-
standing legal protections in a decision which punishes, rather than 
supports, private dispute resolution.\8\ In the Dana decision, the 
Board tosses out a decades-old rule that allows an employer and union, 
following voluntary recognition, a reasonable period of time to 
negotiate a collective bargaining agreement without challenge to the 
union's majority status. Instead, the Board has crafted an entirely new 
set of rules which are triggered when an employer voluntarily agrees to 
honor the choice of its workers for union representation. A mere 30% of 
the workforce can now override the expressed desire of the majority of 
the workers, sabotage the majority's support for a union and force all 
workers into the NLRB's bureaucratic, delay-ridden, and divisive 
representation process. A sharp dissent accused the majority of 
``cutting voluntary recognition off at the knees.''\9\
    In the Dana decision, the Board elevates the rights of a minority 
of workers who do not support a union over the rights of a majority of 
workers who do. Notification to the Board when voluntary recognition is 
granted is now required in order to secure a period of time to engage 
in collective bargaining without challenge to the union's majority 
status--a period of time automatically granted to unions certified 
under the NLRB's representation process. Notification that the workers' 
union has been voluntarily recognized by their employer will trigger a 
mandatory NLRB notice posting at the workplace. This Notice to 
Employees requirement was first formulated in this decision, even 
though no party urged a government-issued notice. The notice that now 
must be posted in the workplace instructs employees on how 30% of them 
may file a petition for an election to undo the majority-supported 
recognition.
    This notice requirement follows the recent implementation of 
another required notice involving the NLRA. Also instituted during the 
Bush administration, it informs workers how to withdraw financial 
support from a union.\10\ That notice and the Dana notice are both 
aimed at informing workers of their rights to refrain from union 
activity. No mandatory NLRB Notice advises employees of their 
affirmative rights under the Act, except when an employer settles--or 
loses--an unfair labor practice case against it or during the 3-days 
prior to an NLRB conducted election when a notice detailing the polling 
locations and requirements must be posted.\11\
    For the Board to require notices on how to refrain from 
unionization, while not requiring a corresponding posting of a 
workplace notice to inform workers of their rights to ``join, form or 
assist'' unions--rights specifically protected by Section 7 of the 
Act--is especially egregious in view of a pending petition filed with 
the Board by Charles Morris, Professor Emeritus of Law at Southern 
Methodist University. This petition, filed over 14 years ago and 
supported by the AFL-CIO, has yet to be acted upon. The petition 
requests that the Board craft a rule providing for the posting of 
notices in all workplaces subject to the jurisdiction of the Board to 
advise employees of their general rights under the Act--both their 
rights to participate and their rights to refrain from participating in 
union activity.\12\
    The notice required by the Dana decision, informing employees of 
how to negate their co-workers' choice to unionize, is novel in two 
other respects. It is the only required NLRB Notice which includes the 
location, address and phone number of the nearest NLRB office, a toll-
free number for the NLRB, and the NLRB's website address. And, 
shockingly, it does not even include the recitation of workers' core 
rights under the Act, which is ``boilerplate'' language in the Board's 
remedial and election-related notices. Rather, the formulation of the 
notice is yet another stunning example of this Board elevating the 
rights of workers who do not support a union over the rights of workers 
who do.
    As if its Dana decision were not transparent enough evidence of 
this Board's outright bias, on the very same day that Dana case was 
decided the Board issued another case involving workers' signatures, 
this time with the petition used to support an employer's attempt to 
withdraw recognition from a union.\13\ A comparison of these two cases 
illustrates the Board's grossly disparate and hypocritical treatment of 
employee rights. Shedding all pretense of scholarly analysis and legal 
precedent, the decisions are based simply on whether the outcomes favor 
forming or eliminating the union.
    In Dana, the union supported its majority status on the basis of 
cards signed by a majority of the workers. The Board attacked and 
criticized the signed cards for a whole host of reasons: card signing 
is a ``public action, susceptible to group pressure. * * *;'' 
``misrepresentations about the purpose for which the card will be used 
may go unchecked;'' employees ``may not even understand the 
consequences of voluntary recognition * * *;'' ``card signings take 
place over a protracted period of time;'' and ``[t]here are no 
guarantees of comparable safeguards [compared with an NLRB election], 
in the voluntary recognition process.''
    Meanwhile, however, not one of these concerns was raised by the 
Board in the companion case involving an employer's efforts to get rid 
of a union. In Wurtland, even though a petition signed by a majority of 
workers stated that they wished ``for a vote to remove the union,'' the 
Board concluded that no election need be conducted because the ``more 
reasonable interpretation'' was that the workers wanted to remove their 
union, not that they wanted to vote to remove the union.''\14\ Instead 
of challenging the legitimacy of the signed cards, as in Dana, the 
Board in Wurtland presumed that ``signatory employees rejected union 
representation'' without addressing any of the concerns that they 
claimed troubled them about the signatory employees in Dana.
    In Dana, when workers wanted to gain union representation, the 
Board held that the choice of a majority of workers for collective 
bargaining can be held hostage--legally--by a small minority of anti-
union workers while the NLRB's representation process lumbers 
ponderously through its bureaucratic maze. Why? Because, according to 
the Board, although its election process ``may result in substantial 
delay in a small minority of Board elections,'' this is preferable 
``for resolving questions concerning representation.''\15\ Yet in 
Wurtland, where the employer wanted to withdraw recognition, the Board 
expressed the opposite concern--that requiring an NLRB election would 
unduly prolong the time during which the union would remain the 
workers' representative, i.e., ``until the election results were 
certified, including any period required for the resolution of 
challenges and objections.''\16\
    And in another Board decision this past August where the employer 
wanted to withdraw recognition from a union on the basis of ``slips'' 
signed by workers, the Board never questioned the ``comparable 
safeguards'' of using signed slips to record worker sentiment; forgot 
all about its preference for elections to determine questions 
concerning representation; and suddenly worried that an election 
process would not yield a prompt result. Far worse was its fear that 
``employees will be forced to endure representation that they have 
unquestionably rejected.''\17\ Could a rationale be more result-
oriented? This case provides another astonishing example of the 
disparate rules this Board applies depending on whether the outcome of 
the case will result in employees selecting or rejecting union 
representation.
Excluding Workers from the Act's Protection
    Narrowing the Act's protections and thwarting workers' organizing 
efforts can be easily accomplished by simply excluding them from the 
Act's protections altogether. And this Board has done exactly that. 
Decisions by this Board have overturned precedents to deny 
representation and bargaining rights to tens of thousands of the 
nation's workforce who were previously covered, including teaching and 
research assistants,\18\ and, effectively, temporary employees working 
jointly for a supplier employer and a user client, unless both 
employers consent.\19\ Existing precedents have been artificially 
construed and applied in order to characterize workers as ``non-
employees,'' ``managers,'' and ``independent contractors'' in order to 
exclude such categories as disabled individuals working as 
janitors,\20\ faculty members,\21\ artists' models,\22\ and newspaper 
carriers and haulers.\23\
    In a trilogy of cases with enormous impact, the Board radically 
expanded the statutory definition of ``supervisor.''\24\ This re-
drawing of supervisory lines affects the continued organizing and 
collective bargaining rights of hundreds of thousands of professional, 
technical and skilled employees who rely on less highly trained or 
experienced personnel to help them accomplish their work.\25\ The 
impact of these cases is currently being debated in Congress through 
its consideration of the RESPECT Act which would eliminate the current 
ambiguity regarding supervisory status and ensure that thousands of 
workers are not denied their labor law rights by being wrongfully 
classified as supervisors.\26\
    In its zeal to convert otherwise covered employees into 
``supervisors,'' the Board sua sponte reconsidered an earlier decision 
involving a nurse at a long-term care facility in Missouri who was 
fired, according to her employer's own admission, because she 
circulated a petition and solicited employee signatures to protest 
certain working conditions.\27\ Reclassifying the nurse as a 
supervisor, the Board thus withdrew her protection from the otherwise 
unlawful firing. On review, the Court of Appeals for the District of 
Columbia rejected the Board's decision, concluding that ``the Board's 
judgment in this case rests on nothing.''\28\ Undeterred, the Board 
employed virtually the same theory in a case decided on September 26. 
It dismissed a union's election petition for nursing home LPNs on the 
grounds that all of them were supervisors because they completed 
``employee counseling forms,'' which the Board claimed were a precursor 
to disciplinary action.\29\
Restricting and Narrowing Already Inadequate NLRB Remedies
    The decisions of this Board have undermined the Act's already 
meager remedies for employer abuse and interference with protected 
rights. Coupled with the substantial delays in Board proceedings that 
in many instances are aggravated by employers' procedural maneuvering, 
these rulings will eliminate any deterrent effect and in practice will 
further encourage employers to violate workers' rights.
    NLRB remedies are notoriously weak and ineffective. An employer who 
has engaged in misconduct during a union organizing campaign, such as 
threatening and spying on workers, is typically required merely to post 
an NLRB Notice to Employees promising not to engage in further 
violations. Workers who are illegally discharged are entitled to 
reinstatement and back pay, but to no other form of damages. Most 
employees never return to their jobs and none receive compensation for 
the economic or psychological devastation that they and their families 
typically have to endure.\30\
    Moreover, the employer is rarely held accountable for the damage 
done to the organizing campaign, itself. In some cases, if the 
employer's misconduct has affected the results of the election, the 
Board may order a rerun election. But delays often make even these 
remedies wholly ineffectual as the ``remedy'' generally comes long 
after the workers have tried to organize their union and the campaign 
has been thwarted. By then, the damage has been done: the workers have 
seen how weak their so-called protections really are. Illustratively, 
one of the Board's September cases involves back pay determinations for 
202 workers who were denied reinstatement in 1990; 17 years later, none 
have received any back pay.\31\
    Human Rights Watch has concluded that ``many employers have come to 
view remedies [under the NLRA] * * * as a routine cost of doing 
business, well worth it to get rid of organizing leaders and derail 
workers' organizing efforts.''\32\ Professor Cynthia Estlund echoed 
this pessimistic view in observing that the Act is ``widely flouted by 
employers who perceive'' the discharge of union adherents as an ``easy 
and cheap [] response'' to an organizing campaign.\33\ These recent 
decisions will not only further embolden labor law-breakers, they 
vividly demonstrate to workers that the NLRB can do little to protect 
their rights and that their employer can act with impunity.
    For example, the Board has now made radical changes in long-
standing rules regarding back pay eligibility. On September 30, the 
Board rewarded employers who violate the law, by making it yet more 
difficult for workers ever to collect back pay for unlawful 
discrimination. Reversing 45 years of established precedent,\34\ it 
held that the General Counsel and illegally terminated workers will now 
carry the burden, in a proceeding to determine back pay following a 
finding of illegal conduct, to come forward with evidence that the 
illegally terminated workers took reasonable steps to look for work 
after being fired.\35\ If a worker does not present evidence of an 
adequate search for work, the employer will have no back pay 
obligation.
    In another decision issued on September 11, 2007, the Board had 
already undercut the likelihood of back pay by announcing a new rule 
that employees who wait more than two weeks before seeking interim 
work, what the Board characterizes as ``an unreasonably long time,'' 
will be denied back pay for that period because to do otherwise would 
``reward idleness.''36 In this case, workers were denied back pay even 
for the time that they were picketing the employer to try to get their 
jobs back and for the period between the time they were advised they 
had been hired for interim employment and the time they actually 
started their new, interim jobs.\37\
    Another new rule announced in September shifts the burden to the 
General Counsel and workers to prove that applicants who were denied 
employment had a ``genuine interest'' in working for the employer who 
illegally refused to hire them.\38\ This builds on a prior burden 
shifting case in which the Board created a second class of 
discriminatees--those illegally denied employment because the employer 
suspected they were union organizers, seeking work to organize its 
workforce.\39\ Despite the historical presumption, still applicable to 
all other discriminatees, that an applicant would have continued 
working indefinitely if not for the employer's illegal conduct in 
denying them employment, this new subclass of discriminatees is now 
required to present affirmative evidence to prove that, if hired, they 
would have worked for the employer for the entire backpay period. 
According to the dissent, in promulgating this new rule, the Board 
rejected ``precedent endorsed by two appellate courts and rejected by 
none, without any party having raised the issue, without the benefit of 
briefing, and without any sound legal or empirical basis.'' The dissent 
points out that the rule being changed by the Board was established 
``in the Board's first reported case'' in1935.\40\
    These recent decisions will not only reduce the back pay 
obligations of adjudicated labor law violators, they will have a 
profound effect on how cases involving back pay are investigated and 
litigated. Not only has it become cheaper for employers to violate the 
law as a result of these new decisions, but the Agency, itself, is now 
required to help the wrongdoer determine how it can lessen the back pay 
it is required to pay its victims. Workers who file unfair labor 
practice charges will now spend less time with Board Agents on the 
circumstances of the unlawful termination, and correspondingly more 
time, what they did or did not do regarding a bona fide application for 
interim employment and subsequent mitigation of damages. These radical 
changes divert the Board's resources away from enforcing the Act and, 
instead, toward saving money for law-breakers, who on average have paid 
back pay awards amounting only to $3,500 even before these burden-
shifting new rules took effect.\41\ The end result of these new rules 
is that this Board is making it cheaper for employers to violate the 
law and using Agency resources to do so.
    Recent decisions have also created an extremely restrictive and 
narrow view of what constitutes remedial action and the necessity for 
such relief. Broad cease-and-desist orders have been abandoned,\42\ 
only mass discharges qualify for a bargaining order remedy,\43\ the so-
called extraordinary remedies in cases involving brutal tactics by 
employers to crush union organizing activities have all but 
disappeared,\44\ and Section 10(j) injunction action has ``fallen into 
virtual disuse.''\45\
    Past efforts by the NLRB to craft effective remedies have focused 
on alternative means to mitigate the impact of an employer's unlawful 
anti-union campaign, such as ordering a high ranking company official 
and/or an NLRB agent to read aloud the Notice to Employees to workers 
and/or mail it to workers' homes, rather than simply burying it on the 
company bulletin board or simultaneously making it clear to employees 
that it does not agree with the information it was forced to post. In 
the past, the Board has also ordered that unions be allowed to address 
workers at the workplace, something that the supremacy of the 
employer's property rights typically precludes. Other remedial 
initiatives have included access by the union to a list of employee 
names and addresses in order to contact workers to educate them about 
the benefits of collective bargaining; and awarding the union its 
organizing, negotiating or litigation costs.\46\ Such special remedies, 
even in cases of egregious violations of law, have virtually 
disappeared under the Bush Board.\47\ In fact, the Board has rejected 
requests for far more modest remedial steps. In a case involving 
virtually all Chinese speaking workers with limited proficiency reading 
English, the Board rejected as ``not warranted'' a request that 
management read aloud its Notice to Employees at an assembly and even a 
request to translate into Chinese the final decision in the case.\48\
    The Board has also virtually eliminated the bargaining order as a 
remedial tool.\49\ In cases where an employer's illegal conduct has 
destroyed the union's majority support, the Board has the authority to 
issue what is known as a Gissel bargaining order, which directs the 
employer to bargain with the union on the basis of its earlier, actual 
and demonstrated majority support.\50\ Yet this Board has refused 
bargaining order remedies despite recommendations from its own 
Administrative Law Judges who hear these cases.\51\ The Board 
apparently believes that employees' rights can be restored by a promise 
not to violate their rights again and that a notice posted on a 
bulletin board will erase fear and intimidation and allow a fair and 
free election.\52\ This approach to the NLRA's remedial scheme 
demonstrates not only a disconnect with what workers face when they try 
to form a union but a profound ignorance of workplace realities. What 
remains of the bargaining order remedy? Apparently, the Board has 
restricted its application to mass discharges\53\ where the unit size 
is small\54\ and the employer's highest-ranking officers are 
involved.\55\ Absent such decimation of the workforce in the most 
limited of circumstances, the Board has turned its back on yet another 
of its very few available, effective remedies.
    Similarly, Section 10(j) injunctive relief has all but disappeared 
under the Bush Labor Board.\56\ This remedial tool exists to empower 
the NLRB to petition a U.S. district court for immediate, temporary 
injunctive relief pending final disposition of the underlying unfair 
labor practice case by the Board. Congress enacted this provision in 
recognition of the harm caused by delay. Section 10(j) relief ``is 
designed to fill the considerable time gap between the filing of a 
complaint by the Board and issuance of its final decision, in those 
cases in which considerable harm may occur in the interim.''\57\ If 
granted, a 10(j) injunction can force an employer to rehire unlawfully 
terminated workers or to bargain with a union that it has unlawfully 
refused to recognize.
    However, seeking 10(j) relief lies within the discretion of the 
Board. The NLRB General Counsel receives 10(j) requests from its 
regional offices, decides in which of these cases it will seek 
authorization from the Board, and must then be granted authorization by 
majority vote of the Board.\58\ The past five years has witnessed a 
precipitous decline in the Board's use of this important and highly 
effective remedy. The yearly average of 40-50 Board authorizations 
during the 1990's has plummeted to an average of 17.4 since 2002.\59\
Workers Have Fewer Protected Rights, Especially Pro-Union Workers
    Recent Board rulings have overruled precedent, announced new rules, 
and applied existing law in ways that significantly alter prior policy 
and strip workers of their rights. Seemingly in concert with increased 
employer resistance,\60\ this Board's decisions have diminished 
employees' rights. During organizing campaigns, employers are permitted 
greater leeway to intimidate and coerce workers through threats and 
surveillance of workers' union activities.\61\ Employers are allowed to 
institute and maintain onerous and ambiguous workplace rules that 
discourage union support and chill employees' exercise of their legal 
rights to support a union.\62\ Significantly, a Board decision 
upholding a work rule that prohibited workers from ``fraterniz[ing] on 
duty or off duty * * * with * * * co-employees'' was denied enforcement 
by the Court of Appeals for the District of Columbia, which 
characterized the Board's view as ``unreasonable,'' and observed that 
``employees could hardly engage in protected activity without 
fraternizing with each other.''\63\ Even non-coercive pro-union conduct 
by a low level supervisor, which the Board acknowledged was not 
objectionable under the law as it existed at the time the election was 
conducted, was used to invalidate workers' votes to form a union 
despite the vigorous and openly aggressive anti-union campaign 
conducted by the employer.\64\ These decisions condone anti-union 
intimidation and interference by employers and further strip workers of 
the Act's protections.
    In case after case, workers' rights are forced to yield--to 
employer property interests however miniscule,\65\ to employer 
discretion,\66\ to national security,\67\ to deferral to 
arbitration,\68\ and to other statutes.\69\ As Board decisions continue 
to shrink workers' rights both the ``protectedness'' and the 
``concertedness'' of employee conduct are viewed more narrowly. 
Examples include this Board's rulings that nursing home workers were 
not engaged in protected conduct when they called a state patient care 
hotline to report excessive heat;\70\ that an employee's solicitation 
of a coworker to testify before a state agency in support of her sexual 
harassment complaint was not protected because she was advancing only 
her own cause;\71\ and, in explicitly overruling precedent, that non-
union workers had no right to be accompanied by a fellow worker when 
they were called into an employer meeting that could lead to their 
discipline.\72\
    Employer property interests, however tenuous, have been more valued 
and far more aggressively protected than workers' rights. Workers must 
engage in concerted activity at their peril despite the supposed 
protections of the Act. An employer's property rights in its parking 
lot were more important than the rights of workers who waited there in 
hopes of bringing their work complaints to their company president's 
attention.\73\ In another case involving an employee who used company 
scrap paper to write a union notice to replace one that a supervisor 
had unlawfully torn down from a bulletin board, the Board ruled that 
that single piece of scrap paper constituted a property interest more 
deserving of the Act's protection than an employee's federal labor law 
rights.\74\
    Workers have also lost ground on evidentiary rulings. Although the 
Board was willing to infer that statements made by a pro-union 
supervisor to three employees were likely repeated other employees so 
as to require setting aside an election in the union's favor,\75\ it 
refused a similar inference where objectionable pre-election conduct by 
an employer was at issue.\76\ Indeed, five decades of precedent were 
swept aside in a Board ruling that an employer's threats to close its 
workplace if employees voted for union representation would no longer 
be presumed to have been disseminated throughout the workforce.\77\ The 
prior rule, which this Board overturned, was based on the logic that 
discussion of this most serious of threats among employees was ``all 
but inevitabl[e]'' and that to think otherwise was ``totally 
unrealistic'' and ``the ultimate in naivete.''\78\ Yet that is exactly 
what this Board did.
Workers' Rights to Bargain Collectively and to Strike Are Under Attack
    In a pair of cases involving partial lockouts, the Bush Board 
seriously undermined the fundamental right to strike by sanctioning 
lockouts in which the employers discriminated among their workers 
solely on the basis of union membership and union support. In one, the 
Board allowed an employer to lock out strikers who had offered to 
return to work while it continued to employ those who had crossed the 
picket lines and abandoned the strike. The Court of Appeals for the 
Seventh Circuit, in a unanimous decision, denied enforcement, harshly 
chastising the Board that its decision was ``in derogation of nearly 
four decades of employee protection.''\79\
    Relying on this earlier decision (and prior to the Seventh 
Circuit's refusal to enforce it), the Board upheld another employer's 
decision to lock out only its non-probationary employees, ``all of whom 
were union members,'' while allowing its probationary employees, ``all 
of whom the * * * [employer] believed were not union members,'' to 
continue working.\80\ The majority justified the employer's selective 
lockout on the basis that non-probationary employees had a more `vital 
interest' in the outcome of the contract negotiations than probationary 
employees. As in the prior case, these were rationales that even the 
employer had not proffered during the litigation of the case.\81\ The 
partial lockout caused the union to lose support and provided the 
employer with an opportunity to stop bargaining and withdraw 
recognition from the union. In an unpublished decision, the U.S. Court 
of Appeals for the District of Columbia similarly refused to enforce 
the Board's decision.\82\
    As part of this September massacre, the Board made it even easier 
for employers to deny employment to returning strikers.\83\ It has been 
well-settled that, in order to be considered ``permanent replacements'' 
who will be allowed to continue working in the place of returning 
strikers after the strike has ended, the replacement workers must have 
``a mutual understanding with the [employer] that they are permanent.'' 
The Board nonetheless held that at-will employees who had signed 
agreements stating that their employment could ``be terminated by 
myself or by [the employer] at any time, with or without cause'' could 
still be considered ``permanent'' replacements if the employer elected 
to deny reinstatement to its workforce at the end of the strike.
    Recent Board decisions evince a willingness to relieve employers of 
their collective bargaining obligations and allow them greater 
discretion to make unilateral changes. When employers make changes in 
employees' working conditions in violation of their legal obligations 
to bargain with the workers' union representative, the traditional 
remedy has been to order the employer to restore the status quo, 
bargain with the union, and rescind any actions taken as a result of 
the illegal unilateral changes, including disciplinary actions. Long-
standing Board precedent has recognized that even if workers are fired, 
``[n]o otherwise valid reasons asserted to justify discharging the 
employee can repair the damage suffered by the bargaining 
representative as a result of the application of the changed term or 
condition.''\84\ With a decision on September 29, the Board eliminated 
this critical remedy and overruled almost two decades of Board 
precedent.\85\ The Board had originally upheld the lawfulness of the 
discharges in 2004, then reinstated this same decision following a 
remand from the Court of Appeals for the District of Columbia, relying 
on an interpretation of the Act which the court had specifically and 
tellingly refused to endorse.\86\
Conclusion
    Instead of shrinking the Act's coverage, protections and remedies, 
this Board should be addressing the reality that virulent anti-union 
campaigns are still the norm, that workers face extreme forms of 
intimidation when they try to form a union, and that the rights 
guaranteed by the Act are still outside the grasp of inordinate numbers 
and categories of American workers.
    Instead, workers are losing fundamental rights and protections 
through thinly-veiled result-oriented split decisions. These decisions 
illustrate how the Bush Administration Labor Board has completely 
abdicated its statutory responsibilities, and why legislative change is 
so critically needed. Workers deserve a Board that will uphold the 
statutory mandate of the National Labor Relations Act and protect their 
rights to organize and bargain for a better life. They deserve a 
pathway to collective bargaining that brings workers into the middle 
class and allows them to stay there, a statute that provides meaningful 
remedies for violations of their rights, and a statute that deters 
labor law violators and precludes their viewing such violations as a 
mere ``cost of doing business.''
    The AFL-CIO calls for the Labor Board to be returned to its role as 
protector of the rights set forth in the National Labor Relations Act 
and for this Congress to enact legislative change that will insure that 
all workers who wish to be represented by a union to negotiate for 
their future have that opportunity. We ask Congress to safeguard 
workers against a Labor Board that is attacking their rights instead of 
protecting them and we call on Congress to strengthen those rights by 
passing the Employee Free Choice Act.\87\
                                endnotes
    \1\ After 70 Years of the NLRB: Warm Congratulations--and a Few 
Reservations, 48 Law Quadrangle Notes 98, 101 (2005).
    \2\ James J. Brudney, ``Isolated and Politicized: The NLRB's 
Uncertain Future,'' 26 Comp. Labor Law & Pol'y 221, 224 (2005). See 
also, Steven Greenhouse, Labor Board's Critics See a Bias Against 
Workers, NY Times, Jan. 2, 2005, at A-20, http://
www.theocracywatch.org/gov--labor--times--jan2--05.htm.
    \3\ Lance Compa, UNFAIR ADVANTAGE: WORKERS' FREEDOM OF ASSOCIATION 
IN THE UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS (Human 
Rights Watch 2000) at 10.
    \4\ Chirag Mehta and Nik Theodore, Undermining the Right to 
Organize: Employer Behavior During Union Representation Campaigns, 
American Rights at Work, (2005),available at http://
www.americanrightsatwork.org/docUploads/
UROCUEDcompressedfullreport%2Epdf; see also Kate Bronfenbrenner, Uneasy 
Terrain: The Impact of Capital Mobilization on Workers, Wages and Union 
Organizing, Cornell University (Sept. 6, 2000).
    \5\ Gordon Lafer, ``Free and Fair: How Labor Law Fails U.S. 
Democratic Standards,'' American Rights at Work (2005) available at 
http://araw.org/docUploads/FreeandFair%20FINAL%2Epdf; http://
www.americanrightsatwork.org/docUploads/
UROCUEDcompressedfullreport%2Epdf.
    \6\ The Board granted review in a series of cases which challenge 
various aspects of voluntary recognition, including Dana Corp. and 
Metaldyne Corp., 341 NLRB 1283 (2004) (Dana I) (re-considering the 
voluntary recognition bar policy of Keller Plastics Co., 157 NLRB 583 
(1966) that a decertification petition may not be filed for a 
reasonable period of time following voluntary recognition); Dana and 
UAW, Case Nos. 7-CA-46965 and 7-CB-14083, JD-24-05 (2005) (Dana II) 
(considering whether and to what extent a union and employer may engage 
in pre-recognition bargaining); Shaw's Supermarket, 343 NLRB 963 (2004) 
(challenging the continuing validity and application of the after 
acquired stores doctrine set forth in Kroger Co., 2l9 NLRB 388 (1975). 
Of these, Dana I was decided on September 29, 2007, 351 NLRB No. 28; 
Dana II is still pending and Shaw's Supermarket settled.
    \7\ The National Labor Relations Act requires employers to 
recognize and bargain with unions ``designated or selected'' by a 
majority of their employees; the Act does not specify the method by 
which employees are to select their representatives. Section 9 of the 
Act provides that employees can petition for an election only if 
``their employer declines to recognize their representative.'' See, 
General Box Co., 82 NLRB 678, 683 (1949); United Mine Workers v. 
Arkansas Flooring Co., 351 U.S. 62, 72, n. 8 (1956).
    \8\ Dana Corp., 351 NLRB No. 28 (2007).
    \9\ Slip op. 14. ``Today's decision * * * undercuts the process of 
voluntary recognition as a legitimate mechanism for implementing 
employee free choice and promoting the practice of collective 
bargaining. It does so at a critical time in the history of our Act, 
when labor unions have increasingly turned away from the Board's 
election process--frustrated with its delays and opportunities it 
provides for employer coercion--and have instead sought alternative 
mechanisms for establishing the right to represent employees * * *. If 
disillusionment with the Board's election process continues, while new 
obstacles to voluntary recognition are created, the prospects for 
industrial peace seem cloudy, at best.'' Id., slip op. 12.
    \10\ Executive Order 13201, issued by President Bush on February 
17, 2001 available at http://www.dol.gov/esa/regs/statutes/olms/
eo13201.htm.
    \11\ NLRB notices to employees may be posted as a remedy for 
illegal conduct pursuant to a settlement agreement or NLRB or Court 
order (NLRB Compliance Manual Sec. 10518); and must be posted for 3 
days prior to an NLRB-conducted election since it notifies employees of 
balloting details (NLRB Representation Casehandling Manual Sec. 11314).
    \12\ Charles J. Morris, In the Matter of Rulemaking, February 9, 
1993.
    \13\ Wurtland Nursing & Rehabilitation Center, 351 NLRB No. 50 
(2007).
    \14\ Id., slip op. 2.
    \15\ Dana Corp., slip op. 6-7.
    \16\ Wurtland, slip op. 3.
    \17\ Shaw's Supermarkets, 350 NLRB No. 55 (2007).
    \18\ Brown University, 342 NLRB 483 (2004) (reversing a four-year-
old decision in New York University, 332 NLRB 1205 (2000) and 
eliminating from the Act's protections thousands of graduate student 
workers who have been actively seeking union representation during the 
pendency of the Brown case, including those at Columbia University, 
Yale University, Tufts University, Pratt Institute and the University 
of Pennsylvania, among others.
    \19\ Oakwood Care Center, 343 NLRB 659 (2004), overruling Sturgis.
    \20\ Brevard Achievement Center, 342 NLRB 982 (2004).
    \21\ LeMoyne-Owen College, 345 NLRB No. 93 (2005), following a 
remand from the Court of Appeals for the District of Columbia Circuit 
of the Board's initial decision reported at 338 NLRB No. 92 (2003); 
faculty are excluded from the Act's protection because they ``play a 
major and effective role in the formulation and effectuation of 
management policies.'' Slip op. 11.
    \22\ Pa. Acad. of Fine Arts, 343 NLRB 846 (2004).
    \23\ St. Joseph News-Press, 345 NLRB No. 31 (2005).
    \24\ Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006); Golden Crest 
Healthcare Center, 348 NLRB No. 39 (2006); and Croft Metals, Inc., 348 
NLRB No. 38 (2006).
    \25\ RNs are the largest occupational group in the healthcare 
industry, holding 2.2 million jobs in 2000. Almost 1.3 million of these 
RNs are employed in hospitals, representing fully one quarter of all 
hospital employees. See 2002-2003 BLS Occupational Outlook Handbook, 
Registered Nurses, Health Industry, available at http://www.bls.gov/
oco/cg/cgs035.htm. In addition, there are approximately 420,000 LPNs 
currently employed in both hospitals and nursing homes. And the impact 
of these decisions will not be limited to nurses or to the health care 
industry; they potentially affect all professional employees, who 
number 27 million. See BLS, 2000-2010 Employment Projections, Table 2.
    \26\ Re-Empowerment of Skilled and Professional Employees and 
Construction Tradesworkers (RESPECT) Act (HR 1644; S 969).
    \27\ Wilshire at Lakewood, 345 NLRB No. 80 (2005).
    \28\ Jochims v. NLRB, 480 F.3d 1161, 1174 (D.C. Cir. 2007), 
reversing and remanding Wilshire at Lakewood, 345 NLRB No. 80 (2005).
    \29\ Oak Park Nursing Care Center, 351 NLRB No. 9 (2007).
    \30\ See Brent Garren, ``When the Solution is the Problem: NLRB 
Remedies and Organizing Drives,'' 51 Labor L J. 76, 78 (2000).
    \31\ Domsey Trading Corp., 351 NLRB No. 33 (2007) (reinstatement 
denied in 1990; original Board decision finding the employer's conduct 
unlawful reported at 310 NLRB 777 (1993); enf'd 16 F.3d 517 (2d Cir. 
1994); Administrative Law Judge Decision on backpay issued October 4, 
1999).
    \32\ UNFAIR ADVANTAGE, supra, note 3 at 10.
    \33\ Cynthia L. Estlund, The Ossification of American Labor Law, 
102 Colum. L. Rev. at 1527, 1554 (2002).
    \34\ Mastro Plastics Corp., 136 NLRB 1342, 1346 (1962); see also 
NLRB Compliance Manual Sec. 10550.1: ``In the event of a dispute 
concerning interim earnings, it is the respondent's legal burden to 
prove interim earnings and other facts that may mitigate the loss 
resulting from its unlawful action;'' and Compliance Manual 
Sec. 10558.1: ``It is the respondent's burden to establish that the 
discriminatee [illegally terminated worker] failed to make a reasonable 
effort to seek interim employment.''
    \35\ St. George Warehouse, 351 NLRB No. 42 (2007) (the illegal 
discharges occurred in 1999; the decision of the NLRB Administration 
Law Judge finding wrong-doing issued in 2002).
    \36\ The Grosvenor Resort, 350 NLRB No. 86 (2007) (employees were 
denied backpay for the period of time that they were engaged in 
picketing to get their jobs back).
    \37\ This new rule contradicts instructions in the existing NLRB 
Compliance Manual, Sec. 10558.3 which advises that ``the Board has 
found that a brief period during which the discriminate undertook no 
activities to seek employment did not constitute a failure to mitigate, 
citing Saginaw Aggregates, 198 NLRB 598 (1972) and Retail Delivery 
Systems, 292 NLRB 121, 125 (1988).
    \38\ Toering Electric Co., 351 NLRB No. 18 (2007) (backpay 
proceeding in which refusal to hire occurred in 1995-96; NLRB 
Administrative Law Judge decisions finding illegal conduct issued in 
1997 and 2000).
    \39\ Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007) 
(carving our less favorable rules when employers unlawfully refuse to 
hire workers intent on organizing the workforce by applying a new 
evidentiary requirement that in order to be entitled to continuing 
backpay, the General Counsel and worker have the burden of proving by 
affirmative evidence that the worker would have continued to work for 
the employer but for the employer's unlawful discrimination).
    \40\ Id., slip op. 10, referencing NLRB v. Seven-Up Bottling Co. of 
Miami, 344 U.S. 344, 347 (1953), citing Pennsylvania Greyhound Lines, 1 
NLRB 1, 51 (1935)
    \41\ Historically, it has been the responsibility of the General 
Counsel to calculate the amount of backpay owed and the obligation of 
the adjudicated wrong-doer to present evidence to reduce that amount. 
See n. 33, supra.
    \42\ Intermet Stevensville, 350 NLRB No. 93 (2007) (Intermet 
II)(refusing a broad order where the employer unlawfully laid off four 
workers because of their union support despite prior case, Intermet 
Stevensville, 350 NLRB No. 94 (2007)(Intermet I), which found numerous 
violations by the employer during its anti-union campaign, including 
threats of plant closure and job losses; demotion, reassignment and 
reduction in wages for a suspected union supporters, the confiscation 
of union literature; and other worker abuses.
    \43\ Compare National Steel Supply, Inc., 344 NLRB 973 (2005) 
(bargaining remedy granted) with Desert Toyota, 346 NLRB No. 3 (2005), 
Abramson, LLC, 345 NLRB No. 8 (2005) and The Register Guard, 344 NLRB 
1143 (2005) (bargaining order remedies denied).
    \44\ Albertson's Inc., 351 NLRB No. 21 (2007) (rejecting its 
Administrative Law Judge's recommendation for a broad order and special 
remedies despite numerous violations for failure to furnish 
information, unilaterally changing terms and conditions of employment, 
bypassing the union, maintaining unlawful rules and unlawfully 
disciplining workers).
    \45\ Rick Valliere, Organized Labor Would Fare Better Under State 
Labor Laws, Professor Says, Daily Lab. Rep. (BNA) at A-7(Jan. 11, 2006) 
(quoting former NLRB Chairman William B. Gould).
    \46\ Fieldcrest Cannon, Inc. v. NLRB 97 F.3d 65 (4th Cir. 1996), 
enf'ing in rel. part 318 NLRB 470 (1995); Dynatron/Bondo Corp., 324 
NLRB 572 (1997); Three Sisters Sportswear Co., 312 NLRB 853 (1993), 
enf'd, 55 F.3d 684 (D.C. Cir. 1995), cert. denied, 516 U.S. 1093 
(1996); Monfort of Colorado, Inc., 298 NLRB 73 (1990), enf'd, 965 F.2d 
1538 (10th Cir. 1992); S.E. Nichols, Inc., 284 NLRB 556 (1987), enf'd, 
862 F.2d 952 (2d Cir. 1988); Avondale Industries, Inc., 329 NLRB 1064 
(1999); Unbelievable, Inc., d/b/a Frontier Hotel & Casino, 318 NLRB 857 
(1995), enf'd. sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. 
Cir. 1997).
    \47\ First Legal Support Services, 342 NLRB 350 (2004) (illegal 
terminations, threats of discharge in retaliation for their union 
activities or those of their family members, being required to sign 
agreements that they were independent contractors and not employees and 
bribes offered in return for giving up their union support did not 
justify special remedies such as allowing the union access to the 
employer bulletin board, an opportunity to address workers on-site, and 
a list of employees' names so the union could contact them to talk 
about the campaign).
    \48\ Chinese Daily News, 346 NLRB No. 81 (2006); John Logan, The 
Long, Slow Death of Workplace Democracy at the Chinese Daily News, 
available at http://www.americanrightsatwork.org/docUploads/
burke%20report.pdf.
    \49\ Brudney, Neutrality Agreements and Chard Check Recognition, 90 
Iowa L. Rev. at 871-872 (footnotes omitted; quoting Gissel, 395 U.S. at 
612). See id. n. 262 (``stunning decline of 85% * * * substantially 
exceeded the 50% decline in election activity over the same period;'' 
increased number of unfair labor practices charges filed belies any 
inference of ``heightened levels of law-abiding conduct by the employer 
community.'').
    \50\ NLRB v. Gissel Packing Co., 395 U.S. 575, 612 (1969).
    \51\ Desert Toyota, 346 NLRB No. 3 (2004) (the employer discharged 
the principal employee organizer and made statements to another 
employee linking the discharge to the worker's union support; 
maintained an unlawful no-solicitation rule, created the impression of 
surveillance, interrogated non-bargaining unit employees and solicited 
them to report union activities by others); Abramson, LLC, 345 NLRB No. 
8 (2005) (a co-owner made repeated threats of plant closure, threatened 
employees with loss of jobs and benefits, and unlawfully denied recall 
to the leading union supporter following a post-election layoff); The 
Register Guard, 344 NLRB 1143 (2005) (employer unlawfully granted a 
unit-wide wage increase during the union campaign, conducted meetings 
in which it solicited and addressed employees' grievances and sent 
workers a letter with a form addressed to the union withdrawing their 
union authorization cards); Hialeah Hospital, 343 NLRB 391 (2004) (high 
level officers of the employer embarked on a course of discharge, 
threats of discharge, spying, and other illegal conduct within hours of 
learning of a union's organizing effort in a small unit of twelve 
employees; the employer warned the entire workforce that it would 
discover the identities and get rid of those employees who had 
contacted the union and told them that it would ``not allow'' a union).
    \52\ This, of course, assumes that the discharged worker will ever 
return to work, or be able to do so prior to a second election.
    \53\ California Gas Transport, Inc., 347 NLRB No. 118 (2006); 
National Steel Supply, Inc., 344 NLRB 973 (2005) (the employer 
unlawfully refused to reinstate 27 of its 32 workers).
    \54\ California Gas Transport, Inc., 347 NLRB No. 118 (2006); 
Center Construction Co., Inc., d/b/a Center Service System Division, 
345 NLRB No. 45 (2005).
    \55\ Evergreen America Corp., 348 NLRB No. 12 (2006); see also 
California Gas Transport, 347 NLRB No. 118 (2006); Center Construction, 
345 NLRB No. 45 (2006); Smoke House Restaurant, 347 NLRB No. 16 (2006); 
Concrete Form Walls, Inc., 346 NLRB No. 80 (2006).
    \56\ 29 U.S.C. Sec.  160(j).
    \57\ S. Rep. No. 105, 80th Cong., 1st Sess. 27 (1947).
    \58\ Although Section 10(l) requires the Board to seek injunctive 
relief for certain illegal conduct by unions, NO provision of the Act 
requires the Board to seek immediate, injunctive relief for violations 
by employers of workers' rights.
    \59\ These figures are based on NLRB documents obtained pursuant to 
a request under the Freedom of Information Act, NLRB Annual Reports, 
and General Counsel Summary of Operations Memoranda GC 08-01, 07-03, 
06-01, 05-01, and 04-01.
    \60\ John Logan, ``Consultants, Lawyers and the `Union Free' 
Movement in the USA Since the 1970s,'' 33 Industrial Relations Journal 
197 (August 2002).
    \61\ Crown Bolt, Inc., 343 NLRB 776 (2004) (announcing a new rule 
that threats that the employer will close its facility if employees 
choose to unionize are no longer presumed to be disseminated throughout 
the bargaining unit); Alladin Gaming, LLC, 345 NLRB No. 41 (2005) 
(permitting managers to closely observe and monitor employees' union 
discussions and then interrupt their conversations to deliver pro-
employer lectures); Airport 2000 Concessions, LLC, 346 NLRB No. 86 
(2006) (interrupting a break time conversation between an employee and 
a union organizer, watching them until they completed their 
conversation and immediately instructing employees not to speak with 
organizers did not constitute illegal surveillance).
    \62\ Delta Brands, Inc., 344 NLRB 252 (2005) (announcing a new 
policy that maintenance of an unlawful overly broad no-solicitation 
rule during an anti-union campaign is no longer sufficient to set aside 
an election); Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004) 
(expanding permissible employer work rules to include those that 
prohibit ``abusive and profane language,'' ``harassment of other 
employees * * * in any way'' and ``verbally, mentally, or physically 
abusing'' a fellow employee or supervisor as such employer rules are 
not unlawful and do not discourage lawful, protected employee 
organizing activities); Stanadyne Automotive Corp., 345 NLRB No. 6 
(2005) (upholding as lawful a ban on ``harassment,'' despite lack of 
any clarification limiting it to unprotected, harassing conduct or 
improper behavior and even though the rule was expressly announced in 
direct response to union activity); Palms Hotel and Casino, 344 NLRB 
351 (2005)(a rule forbidding ``any type of conduct, which is or has the 
effect of being injurious, offensive, threatening, intimidating, 
coercing, or interfering with fellow Team Members'' was ruled to be 
lawful over the dissent's assertion that it would chill Section 7 
rights); see also River's Bend Health & Rehabilitation Services, 350 
NLRB No. 16 (2007)..
    \63\ Guardsmark, LLC, 344 NLRB 809 (2005), enf'd denied, 
Guardsmark, LLC v. NLRB, 475 F.3d 369, 379 (D. C. Cir. 2007), emphasis 
in original.
    \64\ Harborside Healthcare Inc., 343 NLRB 906 (2004) (supervisors' 
attempts to solicit employees to support the union constitute unlawful 
coercive conduct requiring that the union's election win be set aside 
even though the employer conducted an openly aggressive and vicious 
anti-union campaign); Chinese Daily News, 344 NLRB 1071 (2005) (a 
supervisor's distribution of union authorization cards and attendance 
at a union meeting was ``inherently coercive'' such that the union's 
election victory must be set aside even though only one supervisor 
engaged in such conduct and the employer conducted a virulently 
hostile, open and aggressive anti-union campaign.).
    \65\ Quietflex Mfg., L.P., 344 NLRB 10555 (2005) (the employer's 
property interest in a single piece of scrap paper is protected over 
the lawful union activity of a worker who used the scrap paper to make 
a notice of a union meeting after the employer unlawfully removed a 
prior notice).
    \66\ Guardsmark, LLC, 344 NLRB 809 (2005); Stanadyne Automotive 
Corp., 345 NLRB No. 6 (2005); Palms Hotel and Casino, 344 NLRB 351 
(2005) (employer workrules do not chill Section 7 rights).
    \67\ IBM Corp., 341 NLRB 1288 (2004) (``because of the events of 
September 11, 2001 and their aftermath, we must now take into account 
the presence of both real and threatened terrorist attacks''); ITT 
Industries, Inc., 341 NLRB 937, 942 (2004) (dissenting from the 
majority's decision that off-site employees of the employer had Section 
7 rights to handbill in the parking lot at a sister facility, Chairman 
Battista warned that ``our nation now faces significant security 
risks'' such that ``[e]mployers * * * must be particularly vigilant at 
this time of our nation's history.''
    \68\ Smurfit-Stone Container Corp., 344 NLRB 658 (2005) (deferral 
to arbitration award even though the arbitrator upheld the discipline 
of an employee who was engaged in protected, concerted activities); 
Aramark Services, Inc., 344 NLRB 549 (2005) (deferral to arbitrator's 
decision even though the arbitrator's decision ``is not a model of 
clarity,'' but is ``at least susceptible'' to an appropriate 
interpretation).
    \69\ Krystal Enterprises, Inc., 345 NLRB No. 15 (2005) (employee 
was lawfully discharged for violation of employer's sexual harassment 
policy even though his union activity was ``a motivating factor'' and 
rampant sexual horseplay and misconduct, the purported reason for his 
discharge, was generally tolerated); IBM Corp., 341 NLRB 1288 (2004) 
(the potential for workplace discrimination and sexual harassment are 
articulated as a factor in denying nonunion workers the opportunity for 
representation during disciplinary interviews).
    \70\ Waters of Orchard Park, 341 NLRB 642 (2004).
    \71\ Holling Press, Inc., 343 NLRB 301 (2004).
    \72\ IBM Corp., 341 NLRB 1288 (2004), overruling Epilepsy 
Foundation of Northeast Ohio, 331 NLRB 676 (2000).
    \73\ Quietflex Mfg. Co., 344 NLRB 1055 (2005); Johnson Technology, 
Inc., 345 NLRB No. 47 (2005).
    \74\ Johnson Technology, Inc., 345 NLRB No. 47 (2005).
    \75\ Harborside Healthcare, Inc., 343 NLRB 906 (2004).
    \76\ Werthan Packaging, Inc., 345 NLRB No. 30 (2005) (no inference 
that a manager had similarly and systematically interrogated 25 
employees where, on the day before the election, the manager approached 
a short tenure employee wearing a union button and asked if she had 
filled out a union card, then wrote something down on a clipboard and 
was then observed walking up to other employees, talking to them and 
writing on the clipboard; a process repeated with about 25 employees).
    \77\ Crown Bolt, Inc., 343 NLRB 776 (2004) (announcing a new rule 
that threats that the employer will close its facility if employees 
choose to unionize are no longer presumed to be disseminated throughout 
the bargaining unit); overruling Springs Industries, 332 NLRB 40 
(2000); General Stencils, Inc., 195 NLRB 1109 (1972), enf. denied 472 
F.2d 170 (2d Cir. 1972); Coach & Equipment Sales Corp., 228 NLRB 440 
(1977).
    \78\ Crown Bolt, Inc., supra, note 77 at 780 and cases cited 
therein.
    \79\ Midwest Generation, 343 NLRB 69 (2004), rev'd and remanded sub 
nom. Local 15, IBEW v. NLRB 429 F.3d 651, 662 (7th Cir. 2005).
    \80\ Bunting Bearings Corp., 343 NLRB 479 (2004).
    \81\ Id. at 481.
    \82\ United Steelworkers v. NLRB, 179 Fed. Appx. 61 (D.C. Cir. 
2006).
    \83\ Jones Plastic & Engineering Co., 351 NLRB No. 11 (2007).
    \84\ Great Western Produce, Inc., 299 NLRB 1004, 1005 (1990), 
citing Boland Marine & Mfg. Co., 225 NLRB 824 (1976), enf'd 562 F.2d 
1259 (5th Cir. 1977); see also Tocco, Inc., 323 NLRB 480 (1997).
    \85\ Anheuser-Busch, Inc., 351 NLRB No. 40 (2007) (workers 
discharged based on evidence from illegal video surveillance not 
entitled to reinstatement, overruling Great Western and Tocco, supra.).
    \86\ Anheuser-Busch, Inc., 342 NLRB 560 (2004); rev'd and remanded 
sub nom. Brewers & Maltsters Local 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 
2005).
    \87\ The House of Representatives passed the Employee Free Choice 
Act (HR 800), on March 1, 2007, by a 241--185 vote; the Senate 
supported the Employee Free Choice Act (S 1041), on June 26, 2007, with 
a 51-48 vote which was not sufficient to invoke cloture; President Bush 
promised to veto the bill. The Employee Free Choice Act requires 
certification of unions supported by a majority of the workforce, 
interest arbitration for first contracts, and increased remedies for 
violations of the NLRA.
                                 ______
                                 
    Chairman Andrews. Thank you, Mr. Hiatt. I would like to 
thank the witnesses.
    Mr. Cohen, one of the points that Chairman Battista made 
repeatedly is that the law is neutral. It neither favors 
management nor labor.
    In the Dana decision, it is now a legal requirement after a 
majority signup recognition, voluntary recognition by an 
employer or a union that the employer has to post a notice 
telling the employees how much time they have to undo that 
recognition, how they go about doing it. Is that correct?
    Mr. Cohen. Mr. Chairman, I do not believe that that is 
correct. There is no requirement that the employer post a 
notice.
    Chairman Andrews. Well, who has to post it?
    Mr. Cohen. If anybody is going to post it, it is, indeed, 
the employer. But there is no requirement.
    Chairman Andrews. Well----
    Mr. Cohen. As I said before----
    Chairman Andrews. We won't quibble over whether that is--
but clearly, that is the result of that case. Is there any such 
requirement that the employer post a notice as to how someone 
can form a union? Are you aware of any?
    Mr. Cohen. There is not. The closes to it is once there is 
going to be an election, a notice of election must be posted by 
the employer.
    Chairman Andrews. Okay. Once there is going to be----
    Mr. Cohen. And that notice----
    Chairman Andrews. Yes, once there is going to be an 
election, which is a long, long way down the process. Someone 
has already decided there to try to organize something. Does 
that strike you as neutral, that there is an obligation--you 
won't say there is an obligation. I will, that there is a 
precedent in the law that says you have to notify people how to 
undo the will of the majority to form a union, but there is no 
obligation or no precedent that says you have to tell people 
how to form one if they want to. You think that is neutral?
    Mr. Cohen. If I might, I am sorry, I have to disagree with 
the premise, Mr. Andrews. And the reason for that is voluntary 
recognition is still permissible. If nobody posts a notice and 
no employees ever challenge----
    Chairman Andrews. The issue is not permissibility. It is 
notice. And after Dana, you have to tell people how to undo 
what has been done. There is no requirement to tell people how 
they can go about getting voluntary recognition or majority 
signup, is there?
    Mr. Cohen. That is correct. But it is only if there is 
going to be an enjoinment of the recognition bar and subsequent 
contract bars----
    Chairman Andrews. Well, but, frankly, of course, there 
would want to be a recognition, because once you have gotten a 
recognition, you want to negotiate a contract. You want the bar 
so there can be adequate time for the parties consistent with 
the policy of the statute to identify the issues and resolve 
them.
    I want to move on to a question for Professor Finkin. Mr. 
Hiatt made reference to some interesting statistics. The 
chairman earlier, Chairman Battista, talked about reducing the 
backlog at the board, which is half the story. The other half 
is the number of cases flowing into the board has dropped 
rather precipitously.
    Representation cases, for example, dropped 26 percent from 
2005 to 2006 and by 41 percent compared to 1997. Unfair labor 
practice cases are now 31 percent lower than they were in 1997.
    Given your experience in this field, I want to give you two 
hypotheses and have you tell me which of the two you think is 
more likely. The first hypothesis to explain this drop is that 
there has been an outbreak of labor peace and a lot of people 
are a lot happier with the way things are going and fewer 
people think that they need to form a union and fewer people 
think there has been an unfair labor practice, that things are 
working really well.
    And the second hypothesis I would give you is that word has 
gotten out that this board is tilted in such a way that if you 
struggle the way Ms. Ryland did and keep gong back and keep 
being persistent, you are either not going to win, or when you 
do, you are not going to get what your remedy is when you win, 
as Ms. Ryland and, frankly, thousands of others have failed to 
do.
    If you want to add another hypothesis, go ahead. I realize 
they are both a little extreme. But if you had to choose 
between those two hypotheses, which of those two do you think 
is the explanation for this phenomena?
    Mr. Finkin. Well, Mr. Chairman, the question was, in fact, 
put to me. I was asked by the Korean Institute of Labor to 
speak to the resolution of labor disputes in the United States 
in Seoul about a year ago. And I described as part of tout de 
resolve what is happening here, the shift onto employees, the 
increasing shift of the risk of medical injury, of health, 
cost, and the risk of maintaining post-employment retirement, 
level of income onto employees. That has been documented. And 
we can draw on that.
    Chairman Andrews. Right.
    Mr. Finkin. And one of the Korean specialists stood up and 
accused me of not knowing what the hell I was talking about 
because if that were happening in Korea--he said to me, where 
are your riots in the streets, where are the cars burning, 
where are the--you know, in Korea there would be enormous labor 
protests. And I Had to say that in the United States we seem to 
be persuaded more by Thoreau's observation that most men live 
lives of quiet desperation.
    I can't say that the happy worker syndrome can characterize 
the bulk of the American workforce, given the decline in 
purchasing power and all the larger macro-economic events going 
on. I do think that with respect to representation, Professor 
Brudney has documented that more workers, in fact, are securing 
bargaining rights through voluntary recognition than by resort 
to the board.
    If I can take just a second----
    Chairman Andrews. My time has expired. So I would just ask 
you to finish your thought.
    Mr. Finkin. The role of an administrative agency to adjust 
and adapt to changing conditions, particularly when the 
legislature has been incapable of addressing national labor 
policy for 50 years is a vacuum. And the labor board has 
stepped in. I am not arguing the merits of whether that is good 
or bad. It is simply a political fact.
    The function of the board should be to discern those 
conditions that require the kind of fine tuning or adjustment. 
Conditions in 1947 were very different from conditions in 2007.
    Chairman Andrews. Right.
    Mr. Finkin. All right. Now, what has changed to cause the 
board to abandon the precedent set in the 1960s about the 
sanctity of a recognition decision? What has changed? Nothing 
has changed except the fact that many more employees are 
resorting to self-help in this regard than are resorting to the 
board and the composition of the current board----
    Chairman Andrews. I understand. I appreciate that. My time 
has expired.
    I recognize Mr. Kline for 5 minutes.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank the panelists for joining us today.
    I am just looking at the panel, and I have to comment, Mr. 
Chairman, that clearly, as is always the case, we have sort of 
a three-to-one majority to minority witnesses here. And in 
fairness, it was always that way. When the Republicans were in 
the majority, it was three-to-one majority to minority 
witnesses. And I just have to say what a shame. You know?
    We have had some very tremendous panelists here. And it 
would be nice for us to hear some balanced testimony. In this 
case, I guess carrying the Republican view we have Mr. Cohen 
with it all on his shoulders. And I am sure he is capable of 
doing that. He is a terrific witness and been here before.
    Let me say, Ms. Ryland, congratulations to you for being 
here. You are very brave. I am from Minnesota, and about this 
time every year I start thinking how nice it would be to be at 
Disney World. My wife told me it was four degrees at home, and 
it is never four degrees in Orlando.
    Mr. Cohen, there has been some mention today--Senator 
Kennedy and others have mentioned that we have had a drop in 
union membership. I want to get at a couple of questions here. 
But one, can you tell us has the rate of success in union 
elections changed dramatically over the last 30 years? If it 
hasn't changed significantly, does that support or detract from 
the arguments that the board's most recent decisions are those 
that are stifling union organization in this country?
    Mr. Cohen. Mr. Kline, there has not been a dramatic change 
over the last 30 years in the percentage of union election 
victories. In fact, they are at a relative high period as we 
speak, in the high 50 percent range.
    In addition, elections are taking place under this 
administration and the act and the general counsel of the NLRB 
in a very quick pace. The median time for holding an election 
is 39 days from the filing of the petition. And some 92 percent 
of elections are held within a 56-day period of time.
    Mr. Kline. It seems fairly fast to me. We may have to go 
back to the hypotheticals of Chairman Andrews. I sort of 
thought the first hypothetical was worth exploring a little 
more. But no, no, I will not. I will not do that.
    Again, Mr. Cohen, going to you, now, you just touched on 
it, but I want to get it clear here for the record. The 
testimony in the first panel today at least suggested that the 
board's mechanisms for determining questions of representation, 
and particularly by way of the secret ballot elections, are 
broken.
    Do you share that view? And in your opinion, does the hard 
data surrounding the board's supervision of elections support 
such a conclusion? You just touched on it with the 39 days, but 
if you would like to expand on that.
    Mr. Cohen. I may be old fashioned, but I believed in an 
NLRB secret ballot election. I know that many in the union side 
believe that that system is broken. I still believe along with 
the Supreme Court that that is the best measure of employee 
sentiment.
    A matter which is often overlooked in this area is once the 
union comes in, they are not just representing the individuals 
who said I want the union. They are the exclusive 
representative for all employees in the collective bargaining 
unit for all wages, hours, and other terms and conditions of 
employment. That is a heavy responsibility. And it puts a 
premium on getting the decision right.
    I mentioned I am old fashioned. I go back to my days in the 
1970s where an assistant regional director career person at the 
NLRB said when issues would come up, ``What is the matter with 
an election?'' I think there is a good deal of wisdom in that 
admonition.
    Mr. Kline. And as you indicated, the Supreme Court agrees 
with that, quoting again the court in the Gissel Packing case 
that the secret ballot election is the ``most satisfactory, 
indeed, the preferred method of ascertaining whether a union 
has majority support and that card checks are admittedly 
inferior to the election process.'' So your view is entirely in 
keeping with the Supreme Court.
    It looks like my time is about to expire. But let me try to 
leap in here. We have had some discussion about the board's 
blocking charge procedures. Can you explain to me the board's 
blocking charge procedures and how that fosters or inhibits the 
timely resolution of charges?
    Mr. Cohen. I can attempt to do so. When----
    Mr. Kline. It is all I can ask.
    Mr. Cohen. Fine. It is easier to ask than explain. When a 
petition is filed for an election, whether it is a 
representation election or a decertification election, there is 
a notion that the election should not be held if there is an 
atmosphere of unfair labor practice conduct so that when an 
unfair labor practice charge gets filed, in a general sense, 
the NLRB will not conduct an election until that unfair labor 
practice has been resolved, either dismissed, appeal denied or 
remedied.
    We do see in the real world that that is kind of a tactic 
that gets used to forestall an actual election from taking 
place either in a representation matter where a union realizes 
they are not going to prevail in the election or in a 
decertification election where the union would like to have 
that election not take place for an extended period of time. So 
that is my best quick explanation of the blocking charge.
    Mr. Kline. Thank you very much.
    Chairman Andrews. Thank you.
    The chair recognizes the gentleman from Michigan, Mr. 
Kildee, for 5 minutes.
    Mr. Kildee. Thank you, Mr. Chairman.
    Mr. Hiatt, what is the cumulative effect of the Bush board 
decisions over the past 7 years on the ability of workers to 
form or join a union? In addition to the effect of specific 
rulings, is there a chilling or cumulative effect from those 
rulings?
    Mr. Hiatt. Representative, I think that the cumulative 
effect is enormous. And I think you are right. You can't just 
look at the September cases because these decisions have been 
coming out for several years now.
    As University of Michigan professor and former dean of law 
school, Theodore St. Antoine said, you may have a lot of 
nibbles, but they add up to a pretty large bite. And that is 
exactly what has happened. And indeed, in recent times this 
crescendo of anti-worker or anti-union decisions have been much 
more than nibbles.
    But cumulatively, over time, these decisions have really 
been extraordinary and have, indeed, set this board apart from 
the kind of pendulum swings that one might say characterize the 
affects of decision-making in prior boards. This board has made 
it significantly harder for workers who are illegally fired or 
denied employment to recover back pay. It has made a certainty 
that employers who violate the act will incur only the 
slightest monetary loss and be required to undertake as little 
remediation as possible.
    It has made it harder to achieve union recognition without 
being forced to endure the hostile, divisive, delay-ridden NLRB 
representation process, which is on the books. And although 
some courts have said not the preferred method, other courts 
have said quite the opposite. You can find support for either 
case in the--at the board and in the courts over the years.
    It has made it easier for employers to deny jobs to workers 
who have exercised their legal right to strike. It has made it 
easier for employers to file lawsuits in retaliation for 
protected union activities and to punish workers and their 
unions for their lawful protected conduct.
    It has made it easier for employers to discriminate against 
employees and job applicants who are also union organizers, 
even though the Supreme Court has specifically held that such 
workers are employees entitled to the act's protections. It has 
exempted large numbers and categories of workers from coverage 
under the act, from being able to even enjoy whatever meager 
the rights and benefits that this act still provides to 
workers. Huge numbers and numerous categories of workers have 
been taken out of coverage by this board.
    I could go on. I would refer you to the written testimony 
which provides more examples. But the cumulative effect has 
been enormous.
    Mr. Kildee. In addition to that, is there a deterrent 
effect where someone, a group or union may be hesitant to 
appeal for fear of getting a bad decision and therefore, they 
do not appeal at a certain time, at least, with a certain 
board?
    Mr. Hiatt. Not only that, but the law itself is very much 
unbalanced in terms of which party has the right to appeal. 
Certain types of decisions, particularly in the election area, 
can be appealed only by employers, not by unions or employees. 
In the Dana case, as Member Liebman indicated before, is a very 
good example of that.
    Chairman Battista says in his written testimony, ``Well, if 
we are wrong on some of these cases, you can take them to the 
courts.'' Well, some like the Dana case, which has probably 
been discussed as much as any other issue here today, could not 
be appealed by the union or by the workers themselves.
    Mr. Kildee. Thank you very much.
    And thank you, Mr. Chairman.
    Chairman Andrews. Thank you very much.
    The chair recognizes the gentleman from Michigan, Mr. 
Walberg.
    Mr. Walberg. Thank you, Mr. Chairman. I want to move back 
to the issue of salting. And I would ask for a response from 
Mr. Hiatt and Mr. Cohen basically because it is in the real 
world of this issue, you deal.
    As I understand this, salting is basically the practice 
where union organizers purposely send in members under the 
guise of attempting to be hired to work in a plant or an 
employee base in order to unionize a plant. It has become 
evident that their tactics can be quite persuasive.
    In fact, one organization, IBWE, has described the salting 
process as a process of infiltration, confrontation, 
litigation, and disruption of all nonunion contracts. That is 
fairly explicit.
    In light of these revelations, I have difficulty 
understanding how someone could be surprised as a former panel 
member at the NLRB ruling to ensure salts are genuinely 
interested in seeking work. The Supreme Court has ruled and set 
precedents that salting is legal. And I agree workers should 
have the right to organize.
    But didn't the Supreme Court's ruling leave room to provide 
clarification of the legitimacy of workers, first question? 
Moving on, job applicants with no genuine aspirations to work 
for an employer are indistinguishable from unpaid union staff 
members who have been held to be outside protection of the act.
    Should employers be forced to hire people that seek only to 
disrupt a standard work day and a situation through 
confrontation, litigation, et cetera, especially when that 
person has no interest in contributing to the company or 
working side-by-side with fellow employees?
    Mr. Cohen, how would you respond?
    Mr. Cohen. Mr. Walberg, the notion of salting is one that 
is controversial. It did go up the Supreme Court. The Supreme 
Court, as you correctly stated, said that salts meet the 
definition of employee.
    To my knowledge, they did not pass on issues related to the 
board decision that have issued this term. And the board 
obviously felt that there was room within the Town and Country 
Supreme Court case to determine the notion that an individual 
must have an intent to be working, rather than basically 
starting a back pay clock ticking and having it run for an 
extended period of time. That is one of the kinds of cases that 
will be reviewable in the court of appeals as well, I would 
note.
    In terms of the notion of refusal to hire cases, again, 
this is a troublesome area. When I served on the National Labor 
Relations Board, I made it a practice to try to visit regional 
offices when I could.
    And I can tell you I got responses rather uniformly from 
the people that are out there investigating the cases saying, 
``I didn't come to work for this agency to deal with salting 
cases, which are essentially a got you kind of case where the 
people don't have a desire to actually engage in employment.'' 
So it is a difficult area. And the board is working its way 
through it.
    Mr. Walberg. Mr. Hiatt, would you care to respond?
    Mr. Hiatt. Thank you, Mr. Walberg. It is easy to take an 
individual case where an individual organizer or individual 
employee who wishes to organize once employed, does not intend 
to stay on the job. But you have to look at the whole picture, 
which is what the Supreme Court did in saying that you cannot 
discriminate based on the motive of people who are seeking 
jobs.
    The reason why some unions have undertaken salting, as it 
were, is because many work places are so inaccessible to 
organizers and workers and the rules are so stacked against 
employees on the job from organizing on the job itself. And so, 
in that context, some unions have had union supporters seek 
employment.
    Whether they then intend to stay for a long time or not, 
whether they intend to stay for a short time or not simply 
should not be the issue. And I think the Supreme Court made 
that clear.
    You cannot have two classes of discriminatees. Indeed, 
under Title 7 under the FLSA, the notion of testers is 
perfectly accepted.
    And what the board has done here is to say that under this 
law, we are going to recognizes a second class type of 
discriminatee, one which because of his or her motive, is not 
going to enjoy the same type of protections, including whatever 
protections would be provided, whatever remediation would be 
provided to individuals who are--to other individuals who are 
discriminated against because of their support for unionization 
or their intention to join or organize a union.
    It is extraordinary. And it is turning the principle on its 
head announcing a new rule that an employer who refuses to hire 
a job applicant because of his union affiliation can't be found 
guilty of violating the act unless the general counsel provides 
that the applicant had a genuine interest in employment.
    An employer who has salts who are disruptive, who come into 
an interview and don't answer the questions, the kinds of 
things that are complained about here, doesn't have to hire 
them for perfectly legitimate reasons. And they are not going 
to be found to have discriminated.
    Chairman Andrews. We will permit the gentleman a quick 
comment, then his time is expired.
    Mr. Walberg. Well, I guess that would be the question, 
whether they do have that opportunity. And I guess we will have 
to leave that for another time. But thank you for your 
response.
    Chairman Andrews. Thank you.
    There appear to be no further members who wish to question.
    Mr. Kline, did you want to make any concluding remarks?
    I want to conclude by thanking the witnesses of both panels 
for their time and effort this morning and in preparation for 
this morning. I do think there is clearly a range of opinions 
among the members of the committee. There is no doubt about 
that.
    I think that the fact that these issues are so 
substantially divisive and that people feel so strongly about 
them would suggest--far be it for us to suggest--processed to 
the other body. But that when appointees are nominated for 
service on the board, we would favor a full and comprehensive 
process to evaluate their nominations in light of the issues 
that are raised today.
    I again want to thank each of the members for their 
participation, the witnesses as well. As previously ordered, 
members will have 14 days to submit additional materials for 
the hearing record. And any member who wishes to submit follow-
up questions in writing to the witnesses should coordinate with 
the majority staff within 7 days.
    Without objection, the hearing is adjourned. Thank you, 
ladies and gentlemen.
    [The statement of Ms. Sanchez follows:]

   Prepared Statement of Hon. Linda T. Sanchez, a Representative in 
                 Congress From the State of California

    Chairman Miller, Chairman Andrews, Chairman Kennedy, and Chairwoman 
Murray, I thank you for convening this very important hearing on the 
effect of recent National Labor Relations Board Decisions on the 
American workers and their families.
    In a very real sense, this hearing brings us full circle from our 
first Education and Labor hearing of the year. Back in January, we 
examined the state of the American Middle Class, highlighting the 
consequences of years of anti-labor, anti-family legislation combined 
with an irresponsible economic policy and a consistent failure to 
invest in our workforce, our children, or our industrial base. 
Unfortunately, for working and middle class Americans, the Bush economy 
has presented them with greater obstacles to success than in previous 
decades.
    As we proceeded through the year, we worked together to undo the 
damage of the Bush years, damage done by legislation that treats 
workers and their families as unimportant cogs in a corporate machine. 
The biggest mistake made by the previous majority was that they forgot 
that historically, America does best when labor and capital cooperate. 
Together, we can achieve great things. When we invest in families, 
workers are more secure and more productive. When we invest in 
children, we are creating the next generation of entrepreneurs, 
engineers, mangers, and captains of industry. When we forget the 
importance of the human element, we falter; we squander our most 
precious resource.
    In order to restore the opportunities that working Americans need, 
we have worked to pass legislation that would:
     help employees receive equal pay for equal work and ensure 
their right to seek redress when they don't
     give the children of low-income families a leg up by 
expanding and improving Head Start
     ensure that finances don't ever create a barrier between a 
student and her college dreams
     help workers exercise their right to organize and work 
together for improved wages and working conditions.
    It is the danger to this last point that brings us together today. 
The National Labor Relations Act, a Magna Carta of labor law that 
guarantees basic rights for American workers, is under attack--now more 
than ever. In one month alone, September 2007, the National Labor 
Relations Board, the appointed guardians of the right to organize, 
issued 61 decisions that shake the very foundation of labor law. In one 
fell swoop, the current majority has undermined not only prior NLRB 
decisions, but also rights that have existed since the enactment of the 
National Labor Relations Act.
    The NLRB is the only place that workers and their representative 
unions can vindicate their rights. They cannot take cases to the courts 
directly. So this latest assault on the right to organize and to seek 
redress for unfair labor practices is more than bad policy, it's 
devastating. It turns labor law on its head.
    Like the ``Clear Skies'' and ``Healthy Forests'' initiatives, labor 
policy under this Administration doesn't mean what it ought to. 
Instead, it means anti-labor policy, a set of rules and decisions 
intended to take away workers' rights, not to protect them.
    While it may take us years to undo some of the damage done by this 
recent spate of NLRB decisions, I have faith that some are so contrary 
to statute and precedent that they will be overturned in the courts. As 
for the other decisions, I will continue to work with my colleagues 
until working families are no longer on the defense. I am enthusiastic 
to restore meaning to the America's nickname as the ``land of 
opportunity.''
    America's middle class is working hard and producing more than 
ever, yet it is faced with an unprecedented burden of costs and 
expenses. Our success as a country depends on them; their success, 
right now, depends on us. With that, I look forward to the hearing 
today and to begin to quickly and effectively restore a traditional 
path to economic advancement for workers everywhere: the right to 
organize.
    Thank you.
                                 ______
                                 
    [The statement of Senator Clinton follows:]

Prepared Statement of Hon. Hillary Rodham Clinton, a U.S. Senator From 
                         the State of New York

    I'd first like to thank Chairwoman Murray and Ranking Member 
Isakson, as well as Chairman Andrews and Ranking Member Kline for 
calling this joint hearing.
    Since its enactment in 1935, the National Labor Relations Act has 
played a critical role in safeguarding the rights of workers' rights to 
form and join unions and bargain for better working conditions. The Act 
explicitly encourages collective bargaining practices, and calls upon 
the members of the National Labor Relations Board to adjudicate cases 
in a manner consistent with these policies.
    I am therefore deeply troubled by the NLRB's recent decisions, and 
remain very concerned about their clear potential to undermine the very 
rights the NLRB was tasked with protecting. The sheer volume of 
decisions in recent months that have walked back worker protections or 
favored employers in labor disputes reflects nothing less than a tidal 
shift in the Board's long-standings precedents and betrays an effort to 
rewrite key protections in the Act through Board rulings.
    The decisions have touched on a wide range of issues involved 
workers' rights. They have made it more difficult for employers and 
workers to establish a collective bargaining agreement through card 
checks, more difficult for workers who were illegally fired or denied 
employment to recover back pay; easier for an employer to deny jobs to 
workers who have exercised their right to strike; easier for an 
employer to file lawsuits in retaliation for protected union 
activities; and easier for employers to discriminate against employees 
and job applicants who are also union organizers.
    Congress has an important role to play in reviewing and, if 
necessary, overriding Board decisions that are inconsistent with the 
text and purpose of the National Labor Relations Act and the need to 
protect workers and ensure a fair and constructive relationship between 
workers and employers in an evolving economy. I stand ready to work 
with my colleagues to find ways to restore the Act's promise as a 
bulwark of workers' rights.
                                 ______
                                 
    [Whereupon, at 12:43 p.m., the subcommittees were 
adjourned.]

                                 
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