[Senate Hearing 110-420]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-420
 
  NATIONAL LABOR RELATIONS BOARD REPRESENTATION ELECTIONS AND INITIAL 
    COLLECTIVE BARGAINING AGREEMENTS: SAFEGUARDING WORKERS' RIGHTS?

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

                                HEARING

                                before a

                          SUBCOMMITTEE OF THE

            COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

                            SPECIAL HEARING

                     APRIL 2, 2008--WASHINGTON, DC

                               __________

         Printed for the use of the Committee on Appropriations


  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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                               __________
                      COMMITTEE ON APPROPRIATIONS

                ROBERT C. BYRD, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii             THAD COCHRAN, Mississippi
PATRICK J. LEAHY, Vermont            TED STEVENS, Alaska
TOM HARKIN, Iowa                     ARLEN SPECTER, Pennsylvania
BARBARA A. MIKULSKI, Maryland        PETE V. DOMENICI, New Mexico
HERB KOHL, Wisconsin                 CHRISTOPHER S. BOND, Missouri
PATTY MURRAY, Washington             MITCH McCONNELL, Kentucky
BYRON L. DORGAN, North Dakota        RICHARD C. SHELBY, Alabama
DIANNE FEINSTEIN, California         JUDD GREGG, New Hampshire
RICHARD J. DURBIN, Illinois          ROBERT F. BENNETT, Utah
TIM JOHNSON, South Dakota            LARRY CRAIG, Idaho
MARY L. LANDRIEU, Louisiana          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              SAM BROWNBACK, Kansas
FRANK R. LAUTENBERG, New Jersey      WAYNE ALLARD, Colorado
BEN NELSON, Nebraska                 LAMAR ALEXANDER, Tennessee
                    Charles Kieffer, Staff Director
                  Bruce Evans, Minority Staff Director
                                 ------                                

 Subcommittee on Departments of Labor, Health and Human Services, and 
                    Education, and Related Agencies

                       TOM HARKIN, Iowa, Chairman
DANIEL K. INOUYE, Hawaii             ARLEN SPECTER, Pennsylvania
HERB KOHL, Wisconsin                 THAD COCHRAN, Mississippi
PATTY MURRAY, Washington             JUDD GREGG, New Hampshire
MARY L. LANDRIEU, Louisiana          LARRY CRAIG, Idaho
RICHARD J. DURBIN, Illinois          KAY BAILEY HUTCHISON, Texas
JACK REED, Rhode Island              TED STEVENS, Alaska
FRANK R. LAUTENBERG, New Jersey      RICHARD C. SHELBY, Alabama
ROBERT C. BYRD, West Virginia, (ex 
    officio)
                           Professional Staff
                              Ellen Murray
                              Erik Fatemi
                              Mark Laisch
                            Adrienne Hallett
                             Lisa Bernhardt
                       Bettilou Taylor (Minority)
                    Sudip Shrikant Parikh (Minority)

                         Administrative Support
                              Teri Curtin
                         Jeff Kratz (Minority)


                            C O N T E N T S

                              ----------                              
                                                                   Page

Opening statement of Senator Tom Harkin..........................     1
Opening statement of Senator Arlen Specter.......................     2
Statement of Hon. Peter C. Schaumber, Chairman, National Labor 
  Relations Board................................................    13
    Prepared statement...........................................    20
Statement of Hon. Wilma B. Liebman, member, National Labor 
  Relations Board................................................    33
    Prepared statement...........................................    34
Statement of Gordon Lafer, Ph.D., associate professor, Labor 
  Education and Research Center, University of Oregon, Eugene, 
  Oregon.........................................................    48
    Prepared statement...........................................    51
Statement of John N. Raudabaugh, Esq., partner, Baker & McKenzie, 
  LLP, Chicago, Illinois.........................................    56
    Prepared statement...........................................    58
Question submitted by Senator Tom Harkin.........................    72
Questions submitted by Senator Arlen Specter.....................    73


  NATIONAL LABOR RELATIONS BOARD REPRESENTATION ELECTIONS AND INITIAL 
    COLLECTIVE BARGAINING AGREEMENTS: SAFEGUARDING WORKERS' RIGHTS?

                              ----------                              


                        WEDNESDAY, APRIL 2, 2008

                           U.S. Senate,    
    Subcommittee on Labor, Health and Human
     Services, and Education, and Related Agencies,
                               Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 10:30 a.m., in room SD-138, Dirksen 
Senate Office Building, Hon. Tom Harkin (chairman) presiding.
    Present: Senators Harkin and Specter.


                OPENING STATEMENT OF SENATOR TOM HARKIN


    Senator Harkin. This committee will come to order.
    Senator Specter, our ranking member, had spoken to me about 
having this hearing and we talked about it and discussed it. He 
requested that we have this hearing and I'm more than happy to 
oblige because we have traded this gavel many times over the 
last several years when he was chairman and I was ranking 
member and I'd request a hearing, he was always happy to oblige 
me on topics that interested me and that's how we operated in 
this subcommittee.
    So, today, we're here to talk about an issue that's 
important to us both. We want to make sure that the NLRB is 
doing everything in its power to make sure elections are fair 
and we get a full and accurate picture of the barriers that 
exist to union organizing.
    I believe strongly that when workers join together and act 
collectively, they can achieve economic gains and worker safety 
that they would not be able to get if they negotiated 
individually.
    History tells us many things. Union members were on the 
frontlines fighting for the 40-hour work week. It wasn't 
management, it was labor that fought for that. Paid vacations. 
It wasn't management, it was unions that fought for that. 
Minimum wage. It wasn't management, it was unions who fought 
for that. Employer-provided health insurance and pensions. All 
of this was led by organized labor in passing legislation to 
ensure fair and safe workplaces.
    They also fought to champion Social Security and Medicare 
and the Family and Medical Leave Act. So many of the things 
that we just take for granted today, we take for granted that 
we have paid vacations, we take for granted that we have 
pension programs, we take for granted that we have sick leave 
and things like that, but they weren't always so, and we owe a 
great debt to organized labor for the struggles they fought to 
bring this to the American workplace. Many of these which 
workers around the world would like to have in their 
workplaces.
    More than 47 million Americans lack health insurance. 
That's including about 251,000 of my fellow Iowans. Even those 
who get it find it covers less and less. This should not be 
happening. When productivity rises, everyone should see a fair 
share of the gain, but in the past several years, increasing 
productivity has gone hand in hand with a growing wage gap.
    According to the non-partisan Congressional Research 
Service, adjusted for inflation, average worker pay rose 8 
percent from 1995 to 2005. Average. But the median CEO pay at 
the 350 largest firms rose a 150 percent over the same period.
    In my home State of Iowa, real median household income fell 
by 3.4 percent in that same 10-year period, from 1995 to 2005, 
at the same time that productivity increased. So, we get this 
productivity increased, median family income went down. What 
that tells me is that workers are working more and more, 
they're working harder, they're producing better, but they're 
not getting their fair share of the increase.
    Is it a coincidence that all of these injustices are 
happening at a time when union membership has declined? As 
memberships decline, wages have stagnated. The numbers of 
uninsured have risen and private companies have been allowed to 
default on their pensions, threatening the retirement security 
of millions of Americans.
    It's clear to me that in order to rebuild economic security 
for the middle class of America, we must rebuild strong and 
vibrant unions and to rebuild strong unions, we must reduce the 
unfair barriers to organizing.
    So this morning, we'll hear from experts today about what 
sorts of barriers exist, from unfair labor practices in 
petition drives to worker intimidation during the elections. 
We'll hear testimony from Board members who oversee the 
election process. We have a notable academic who's just 
published a report on elections, and we have a respected 
attorney who has represented employers in organizing drives.
    In the interests of full disclosure, I'll openly tell you 
that I'm a strong supporter of the Employee Free Choice Act. I 
have supported it. I know the Board members can't comment on 
legislation, but frankly, Iowans expect me to comment on 
legislation, to earn my keep, as I might say.
    With that, I look forward to hearing your testimony and I 
now will turn to my ranking member, Senator Specter, for his 
opening remarks.


               OPENING STATEMENT OF SENATOR ARLEN SPECTER


    Senator Specter. Thank you, Mr. Chairman, and I thank you 
for a very close working relationship for many years, and as 
you have noted, we have changed party control but that has not 
shifted at all the way this subcommittee has functioned.
    We've been able to work on a close bipartisan basis, and I 
think we have set a standard which other committees might be 
well advised to follow.
    Senator Harkin. I agree.
    Senator Specter. When the gavel has shifted, we use the 
expression it's been a seamless shift of the gavel.
    This is an important hearing. The National Labor Relations 
Act at its core is meant to protect the interests of workers. 
When the Senate initially debated the bill in 1935, Senator 
Robert Wagner noted in drafting the bill that the ``free choice 
of the worker is the only thing I'm interested in.''
    The right confirmed by the National Labor Relations Act is 
the right to choose an exclusive bargaining representative and 
to use the representative to achieve a collective bargaining 
agreement.
    In reviewing the work of the Board, I have been concerned 
about a number of factors, principally the long delays which 
are involved in protecting both rights of employees and 
employers, and I thank Chairman Schaumber and Board Member 
Liebman for their cooperation in advance of this hearing in 
acquainting my staff and me with the issues and concerns that 
the Board has.
    I made an extensive floor statement some time ago on the 
issues relating to what the NLRB has done, and I would ask 
unanimous consent that it be included in the record at the 
conclusion of this statement.
    Senator Harkin. Without objection.
    [The information follows:]

        [From the Congressional Record, Tuesday, June 26, 2007]

                    Employee Free Choice Act of 2007

    Mr. Specter. Madam President, I thank the distinguished chairman 
for yielding time. I have sought recognition to speak on the 
legislation entitled the ``Employee Free Choice Act.'' I have had 
numerous contacts on this bill, both for it and against it, very 
impassioned contacts. People feel very strongly about it. The unions 
contend they very desperately need it. The employers say it would be an 
abdication of their rights to a secret ballot. I believe there are a 
great many important issues which need to be considered on this matter, 
and that is why I will vote, when the roll is called, to impose cloture 
so that we may consider the issue. I emphasize that on a procedural 
motion to invoke cloture--that is, to cut off debate--it is procedural 
only and that my purpose in seeking to discuss the matter is so that we 
may consider a great many very important and complex issues. I express 
no conclusion on the underlying merits in voting procedurally to 
consider the issue.
    In my limited time available, I will seek to summarize. I begin 
with a note that the National Labor Relations Act does not specify that 
there should be a secret ballot or a card check but says only that the 
employee representative will represent in collective bargaining where 
that representative has been ``designated or selected'' for that 
purpose. The courts have held that the secret ballot is preferable but 
not exclusive.
    In the case captioned ``Linden Lumber Division v. National Labor 
Relations Board,'' the Supreme Court held that ``an employer has no 
right to a secret ballot where the employer has so poisoned the 
environment through unfair labor practices that a fair election is not 
possible.''
    The analysis is, what is the status with respect to the way 
elections are held today? The unions contend that there is an 
imbalance, that there is not a level playing field, and say that has 
been responsible in whole or in part for the steady decline in union 
membership.
    In 1954, 34.8 percent of the American workers belonged to unions. 
That number decreased in 1973 to 23.5 percent and in 1984 to 18.8 
percent; in 2004, to 12.5 percent; and in 2006, to 12 percent. In 
taking a look at the practices by the National Labor Relations Board, 
the delays are interminable and unacceptable. By the time the NLRB and 
the legal process has worked through, the delays are so long that there 
is no longer a meaningful election. That applies both to employers and 
to unions, that the delays have been interminable.
    In the course of my extended statement, I cite a number of cases. 
In Goya Foods, the time lapse was 6 years; Fieldcrest Cannon, 5 years; 
Smithfield--two cases 12 and 7 years; Wallace International, 6 years; 
Homer Bronson, 5 years.
    In the course of my written statement, I have cited a number of 
cases showing improper tactics by unions, showing improper tactics by 
employers. In the limited time I have, I can only cite a couple of 
these matters, but these are illustrative.
    In the Goya Foods case, workers at a factory in Florida voted for 
the union to represent them in collective bargaining. Following the 
election, the company refused to bargain with the union and fired a 
number of workers for promoting the union. The workers filed an unfair 
labor practices case in June of 2000, seeking to require the employer 
to bargain.
    In February of 2001, the administrative law judge found the company 
had illegally fired the employees and had refused to bargain. But it 
was not until August 2006 that the board in Washington, DC, adopted 
those findings, ordered reinstatement of the employees with backpay, 
and required Goya to bargain in good faith--a delay of some 5 years.
    In the Fieldcrest Cannon case, workers at a factory in North 
Carolina sought an election to vote on union representation. To 
discourage its employees from voting for the union, the company fired 
10 employees who had vocally supported the union. The employer 
threatened reprisal against other employees who had voted for the union 
and threatened that immigrant workers would be deported or sent to 
prison if they voted for the union. The union lost the election in 
August 1991. Although workers filed an unfair labor practice case with 
the NLRB, the administrative law judge did not decide the case until 3 
years later, in 1994, and his order was not enforced by the Fourth 
Circuit until 1996--a lapse of some 5 years. In my written statement, I 
cite seven additional cases.
    Similarly, there have been improper practices by unions. On the 
balance, I have cited nine on that line, the same number I cited on 
improper activities by employers.
    At a Senate Appropriations subcommittee hearing, which I conducted 
in Harrisburg, PA, in July 2004, we had illustrative testimony from an 
employee, Faith Jetter:
    Two union representatives came to my home and made a presentation 
about the union. They tried to pressure me into signing the union 
authorization card, and even offered to take me out to dinner. I 
refused to sign the card . . . shortly thereafter, the union 
representatives called again at my home and visited my home again to 
try to get me to sign the union authorization card. I finally told them 
that my decision was that I did not want to be represented . . . 
despite that . . . there was continuing pressure on me to sign.
    At a hearing of the House Committee on Labor this February, witness 
Karen Mayhew testified about offensive pressure tactics by the unions. 
I would cite some of my own experience with the issue. When I was an 
assistant district attorney in Philadelphia, I tried the first case 
against union coercive tactics to come out of the McClellan Committee 
investigation. The McClellan Committee had investigated Local 107 of 
the Philadelphia Teamsters Union, found they had organized a goon 
squad, beat up people, and exercised coercive tactics to form a union. 
That case was brought to trial in 1963 and resulted in convictions of 
all six of the union officials and they all went to jail. Without 
elaborating on the detailed testimony, it was horrendous what the union 
practices were in that case.
    There is no doubt if you take a look at the way the National Labor 
Relations Board functions--it is not functioning at all--but that it is 
dysfunctional.
    If you take a look at the statistics, on the one category of 
intake, it declined from 1,155 in 1994, to 448 in 2006. In another 
category, it declined from almost 41,000 in 1994, to slightly under 
27,000 in 2006. On injunctions, where the NLRB has the authority to go 
in and get some action taken promptly, it is used very sparingly, and 
again there is a steep decline: from 104 applications for injunctions 
in 1995, to 15 in 2005, and 25 in 2006. The full table shows a great 
deal of the ineptitude as to what is going on.
    So what you have, essentially, is a very tough fought, very bitter 
contest on elections, very oppressive tactics used by both sides and no 
referee. The National Labor Relations Board is inert. It takes so long 
to decide the case that the election becomes moot, not important 
anymore. What they do is order a new election and they start all over 
again and, again, frequently the same tactics are employed.
    If there is an unfair labor practice in a discharge, the most the 
current law authorizes the NLRB to do is to reinstate the worker with 
backpay. That is reduced by the amount the individual has earned 
otherwise, which is in accordance with the general legal principle of 
mitigation of damages. But there is no penalty which is attached. So 
when you take a look at what the NLRB does, it is totally ineffective.
    Those are issues which I think ought to be debated by the Senate. 
We ought to make a determination whether the current laws are adequate 
and whether there ought to be changes and whether there ought to be 
remedies. We ought to take a look, for example, at the Canadian system. 
When I did some fundamental, basic research, I was surprised to find 
that 5 of the 10 provinces of Canada employ the card check; that is, 
there is no right to a secret election. One of the provinces had the 
card check, rejected it, and then I am told went back to the card 
check. So their experiences are worthy of our consideration.
    In Canada, elections are held 5 to 10 days after petitions are 
filed. I believe this body ought to take a close look at whether the 
procedures could be shortened, whether there could be mandatory 
procedures for moving through in a swift way--justice delayed is 
justice denied, we all know--whether there ought to be the standing for 
the injured parties to go into court for injunctive relief. That is 
provided now in the act, but only the NLRB can undertake it.
    This vote, we all know, is going to be pro forma. We have the 
partisanship lined up on this matter to the virtual extreme. There is 
no effort behind the debate which we are undertaking today to get to 
the issues. There is going to be a pro forma vote on cloture. Cloture 
is not going to be invoked. We are going to move on and not consider 
the matter. We know there are enough votes to defeat cloture. The 
President has promised a veto. So it is pro forma.
    But that should not be the end of our consideration of this issue 
because labor peace--relations between labor and management--is very 
important, and we ought to do more by way of analyzing it to see if any 
corrections are necessary in existing law.
    It is worth noting, in the history of the Senate, there has been 
considerable bipartisanship--not present today. But listen to this: In 
1931, the Davis-Bacon Act was passed by a voice vote. In 1932, the 
Norris LaGuardia Act was passed by a voice vote. In 1935, the National 
Labor Relations Act, also known as the Wagner Act, was passed by a 
voice vote. In 1938, the Fair Labor Standards Act was passed, again, by 
a voice vote. In 1959, only two Senators voted against the Landrum-
Griffin bill.
    A comment made by then-Senator John F. Kennedy, on January 20, 
1959, commenting on the Landrum-Griffin bill, is worth noting. I quote 
only in part because my time is about to expire, but this is what 
Senator John F. Kennedy had to say:

    ``[T]he necessity for bipartisanship in labor legislation is a 
principle which should guide us all. . . . The extremists on both sides 
are always displeased. . . . Without doubt, the future course of our 
action in this area will be plagued with the usual emotional arguments, 
political perils, and powerful pressures which always surround this 
subject.
    Madam President, I ask unanimous consent for 1 additional minute.
    The Acting President pro tempore. Is there objection?
    Without objection, it is so ordered.
    Mr. Specter. In conclusion, it would be my hope we would take a 
very close look at this very important law in this very important field 
and recognize that harmonious relations between management and labor 
are very important. That is not the case today, with a few 
illustrations I have given in my prepared statement. We ought to 
exercise our standing, which we pride ourselves as the world's greatest 
deliberative body.
    Although that will not be done today because cloture is not going 
to be invoked, I intend to pursue oversight through the subcommittee 
where I rank which has jurisdiction over the NLRB.
    Madam President, I ask unanimous consent that my extensive 
statement be printed in the Record.
    There being no objection, the material was ordered to be printed in 
the Record, as follows:
 statement of senator arlen specter--s.1041, the employee free choice 
                                  act
    Mr. Specter. Mr. President, I seek recognition today to discuss the 
legislation entitled the Employee Free Choice Act. The Senate will 
later today vote on Cloture on the Motion to Proceed to this important 
legislation. The Senate prides itself on being the world's greatest 
deliberative body, and I am voting for cloture to enable the Senate to 
deliberate on this legislation and the important issues it raises in an 
open and productive manner.
    The Employee Free Choice Act is an issue of deep and abiding 
interest to labor organizations and to employers. There has been 
intense advocacy on both sides. At the field hearing in Pennsylvania in 
July 2004, and in the many discussions that I have had with labor 
leaders and employers since that time, I have heard evidence indicating 
that employees are often denied a meaningful opportunity to determine 
whether they will be represented by a labor union. There are many 
stories and cases about employers asserting improper influence over 
their employees prior to an election, and there are also many cases of 
unions attempting to assert undue influence over workers in an attempt 
to establish a union. I am talking about threats, spying, promises, 
spreading misleading information, and other attempts to coerce workers 
and interfere with their right to determine for themselves whether they 
wish to be represented by a labor organization. Based on what I have 
heard, I have concerns that we have lost the balance of the National 
Labor Relations Act's fundamental promise--that workers have the right 
to vote in a fair election conducted in a non-threatening atmosphere, 
free of coercion and fear, and without undue delay. Workers should be 
assured that their decisions will be respected by their employer and 
the union--with the support of the government when necessary. The 
overwhelming evidence demonstrates that the NLRB is not doing its job 
and is dysfunctional.
    In light of the numerous contacts I have had with constituents on 
both sides of this issue, and in consideration of the evidence that has 
been presented by both sides, I have decided to hold off on 
cosponsoring the Employee Free Choice Act in the 110th to give more 
opportunity to both sides to give me their views and to give me more 
time to deliberate on the matter. At a time when union membership is 
decreasing and when employers face increasing competition in a global 
economy, it is our duty in Congress to have a vigorous debate and to 
reach a decision on the issues that the Employee Free Choice Act 
purports to resolve.
    The 1935 Wagner Act guarantees the right of workers to organize, 
but it does not require that unions be chosen by election. Instead, 
section 9 provides more broadly that an employee representative that 
has been ``designated or selected'' by a majority of the employees for 
the purpose of collective bargaining shall be the exclusive 
representative of those employees in a given bargaining unit. The act 
further authorizes the National Labor Relations Board to conduct secret 
ballot elections to determine the level of support for the union when 
appropriate. Since 1935, secret ballot elections have been the most 
common method by which employees have selected their representatives.
    Labor organizations have experienced a sharp decline in membership 
since the 1950s. Unions represented 34.8 percent of American workers in 
1954, 23.5 percent in 1973, 18.8 percent in 1984, 15.5 percent in 1994, 
12.5 percent in 2004, and 12 percent in 2006. In Senate debate, we 
should consider whether labor laws have created an uneven playing field 
that has led to this dramatic decline.
    We should also consider where the fault lies in deciding what 
changes, if any, should be made to our labor laws. There are certainly 
abuses by both unions and employers. The Supreme Court described the 
problem in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), noting that 
``we would be closing our eyes to obvious difficulties, of course, if 
we did not recognize that there have been abuses, primarily arising out 
of misrepresentations by union organizers as to whether the effect of 
signing a card was to designate the union to represent the employee for 
collective bargaining purposes or merely to authorize it to seek an 
election to determine that issue.'' The following cases and testimony 
are illustrative of this problem:
    At a July 2004 Senate Appropriations Subcommittee I held in 
Harrisburg, Pennsylvania entitled ``Employee Free Choice Act--Union 
Certifications,'' a letter from employee Faith Jetter was included in 
the record. In that letter, Ms. Jetter testified: ``Two union 
representatives came to my home and made a presentation about the 
union. They tried to pressure me into signing the union authorization 
card, and even offered to take me out to dinner. I refused to sign the 
card . . . shortly thereafter, the union representatives called again 
at my home and visited my home again to try to get me to sign the union 
authorization card. I finally told them that my decision was that I did 
not want to be represented . . . despite that . . . I felt like there 
was continuing pressure on me to sign.''
    In testimony before the Senate Committee on Health, Education, 
Labor , and Pensions on March 27, 2007, in a hearing entitled ``The 
Employee Free Choice Act: Restoring Economic Opportunity for Working 
Families,'' Peter Hurtgen, a former chairman of the NLRB, testified 
that ``in my experience, neutrality/card check agreements are almost 
always the product of external leverage by unions, rather than an 
internal groundswell from represented employees.''
    On February 8, 2007, at a hearing of the House Committee on Labor, 
Education and Pensions entitled ``Strengthening America's Middle Class 
through the Employee Free Choice Act,'' Karen Mayhew, an employee at a 
large HMO in Oregon, testified that local union organizers had misled 
many employees into signing authorization cards at an initial question-
and-answer meeting. She said: ``At the meeting, employees asked the 
union agents questions about the purpose of the cards. The union agents 
responded by telling us that signing the card only meant that the 
employee was expressing an interest in receiving more information about 
the union, or to have an election to decide whether or not to bring the 
union in. It was made clear to all of us there in attendance that those 
authorization cards did NOT constitute a vote right there and then for 
exclusive representation by SEIU.''
    A May 22, 2007 National Review article by Deroy Murdock entitled 
``Union of the Thugs'' quoted Edith White, a food-service worker from 
New Jersey who recalled being visited by a union organizer who told her 
that she ``wouldn't have a job'' if she did not sign the authorization 
card and that ``the Union would make sure'' that she was fired.
    A June 29, 2006 Boston Globe article by Christopher Rowland 
entitled ``Unions in Battle for Nurses'' reported that organizers at a 
local hospital had told nurses that signing an authorization card would 
``merely allow them to get more information and attend meetings.'' The 
nurses were quoted as saying that the process ``left [them] feeling 
deceived and misled.''
    On February 8, 2007, at a hearing of the House Committee on Labor, 
Education and Pensions entitled ``Strengthening America's Middle Class 
through the Employee Free Choice Act,'' Jen Jason, a former labor 
organizer for UNITE HERE, testified that she was trained to create a 
sense of agitation in workers and to capitalize on the ``heat of the 
moment'' to get workers to sign union support cards. She compared the 
American system of free ballots to the check card system in Canada, 
where she also worked as a union organizer, noting ``my experience is 
that in jurisdictions in which `card check' was actually legislated, 
organizers tend[ed] to be even more willing to harass, lie, and use 
fear tactics to intimidate workers into signing cards.'' She also noted 
that ``at no point during a `card check' campaign is the opportunity 
created or fostered for employees to seriously consider their working 
lives and to think about possible solutions to any problems.''
    At that same hearing before the House Committee on Labor, Education 
and Pensions, a former union organizer, Ricardo Torres, testified that 
he resigned because of ``the ugly methods that we were encouraged to 
use to pressure employees into union ranks.'' He testified that ``I 
ultimately quit this line of work when a senior Steelworkers union 
official asked me to threaten migrant workers by telling them they 
would be reported to federal immigration officials if they refused to 
sign check-off cards during a Tennessee organizing drive. . . . Visits 
to the homes of employees who didn't support the union were used to 
frustrate them and put them in fear of what might happen to them, their 
family, or homes if they didn't change their minds about the union.''
    Enactment of the Landrum-Griffin Act in 1959 followed extensive 
Senate hearings by the McClellan Committee on union abuses. Based on 
evidence compiled by that Committee, where Senator John F. Kennedy was 
a member and Robert F. Kennedy was General Counsel, I secured the first 
convictions and jail sentences from those hearings for six officials of 
Local 107 of the Teamsters Union in Philadelphia. That union organized 
a ``goon squad'' to intimidate and beat up people as part of their 
negotiating tactics. Their tactics were so open and notorious that my 
neighbor, Sherman Landers, with whom I shared a common driveway, sold 
his house and moved out, afraid the wrong house would be fire-bombed. 
The trial, which occurred from March through June 1963, was closely 
followed by Attorney General Kennedy who asked for and got a personal 
briefing on the case and then offered me a position on the Hoffa 
prosecution team.
    Similarly, there are many examples of employer abuses during 
campaigns and initial bargaining. Each of the following cases 
illustrates the principle often attributed to William Gladstone: 
``Justice delayed is justice denied.''
    In the Goya Foods case, 347 NLRB 103 (2006), workers at a factory 
in Florida voted for the union to represent them in collective 
bargaining negotiations. Following the election, the company refused to 
bargain with the union and fired a number of workers for promoting the 
union. The workers filed an unfair labor practices case in June of 
2000, seeking to require the employer to bargain. In February of 2001, 
the Administrative Law Judge found that the company had illegally fired 
the employees and had refused to bargain. It was not until August of 
2006, however, that the Board in Washington, D.C. adopted those 
findings, ordered reinstatement of the employees with back pay, and 
required Goya to bargain in good faith--6 years after the employer 
unlawfully withdrew recognition from the union.
    In the Fieldcrest Cannon case, 97 F.3d 65 (4th Cir. 1996), workers 
at a factory in North Carolina sought an election to vote on union 
representation in June of 1991. To discourage its employees from voting 
for the union, the company fired at least 10 employees who had vocally 
supported the union, threatened reprisal against employees who voted 
for the union, and threatened that immigrant workers would be deported 
or sent to prison if they voted for the union. The union lost the 
election in August of 1991. Although workers filed an unfair labor 
practice case with the NLRB, the Administrative Law Judge did not 
decide the case until three years later, in 1994, and his order was not 
enforced by the Fourth Circuit until 1996--5 years after the election.
    In the Smithfield case, 447 F.3d 821 (D.C. Cir. 2006), employees at 
the Smithfield Packing Company plant in Tar Heel, North Carolina filed 
a petition for an election. In response, the employer fired several 
employees, threatened to fire others who voted for a union and 
threatened to freeze wages if a union was established. The workers lost 
two elections--one in 1994 and one in 1997. Workers filed an unfair 
labor practices case. The administrative law judge ruled for the 
workers in December of 2000, but the NLRB did not affirm that decision 
until 2004, and the Court of Appeals did not enforce the order until 
May of 2006--12 years after the first tainted election.
    In another case involving the Smithfield Company, 347 NLRB 109 
(2006), employees at the Wilson, North Carolina location sought an 
election for union representation. Prior to the election, the company 
fired employees who were leading the union campaign and threatened and 
intimidated others. The union lost the election in 1999. The workers 
filed an unfair labor practices case and the Administrative Law Judge 
found in 2001 that the employer's conduct was so egregious that a 
Gissel bargaining order (which mandates a card check procedure instead 
of an election) was necessary because a fair election was not possible. 
However, by the time the NLRB affirmed the ALJ's decision in 2006, it 
found that the NLRB's own delay in the case prevented the Gissel 
bargaining order from being enforceable and--7 years after the employer 
prevented employees from freely participating in a fair election--the 
remedy the Board ordered was a second election.
    In the Wallace International case, 328 NLRB 3 (1999) and 2003 NLRB 
Lexis 327 (2003), the employer sought to dissuade its employees from 
joining a union by showing its workers a video in which the employer 
threatened to close if the workers unionized and the town's mayor urged 
the employees not to vote for a union. The union lost an election in 
1993. The Board ordered a second election, which was held in 1994, that 
was also tainted by claims of unfair labor practices. The employees 
brought unfair labor practice cases after the election. In August 1995, 
the ALJ found against the employer and issued a Gissel bargaining order 
because a fair election was impossible. However, as in the Smithfield 
case, by the time the NLRB finally affirmed the ALJ's decision, in 
1999, the Gissel order was not enforceable. In subsequent litigation, 
an ALJ found that the employer's unlawful conduct, including 
discriminatory discharge, had continued into 2000--7 years after the 
first election.
    In the Homer Bronson Company case, 349 NLRB 50 (2007), the ALJ in 
2002 found that the employer had unlawfully threatened employees who 
were seeking to organize that the plant would have to close if a union 
was formed. The Board did not affirm the decision until March 2007, 
again noting that a Gissel order, though deemed appropriate by the NLRB 
General Counsel, would not be enforceable in court because of the 
delays at the NLRB in Washington, D.C.
    The National Labor Relations Board found unlawful conduct by 
employers in a number of recent cases in my home State of Pennsylvania:
    In the Toma Metals case, 342 NLRB 78 (2004), the Board found that 
at least eight employees at Toma Metals in Johnstown, PA were laid off 
from their jobs because they voted to unionize the company. In 
addition, David Antal, Jr. was terminated because he told his 
supervisor that he and his fellow employees were organizing a union. He 
was laid off the same evening the union petition was filed.
    In the Exelon Generation case, 347 NLRB 77 (2006), the Board found 
that the employer in Limerick and Delta, PA threatened employees during 
an organizing campaign that they would lose their rotating schedules, 
flextime, and the ability to accept or reject overtime if they voted 
for union representation.
    In the Lancaster Nissan case, 344 NLRB 7 (2005), the Board found 
that the employer failed to bargain in good faith following a union 
election victory by limiting bargaining sessions to one per month. The 
employer then unlawfully withdrew recognition from the union a year 
later based on a petition filed by frustrated employees, automotive 
technicians.
    In addition to showing employer abuses, these cases demonstrate the 
impotency of existing remedies under the NLRA to deal effectively with 
the problem. Further, the convoluted procedures and delays in 
enforcement actions make the remedies meaningless. In 1974, in Linden 
Lumber Division v. NLRB, 419 U.S. 301 (1974), the court made it clear 
that an employer may refuse to recognize a union based on authorization 
cards and insist upon a secret ballot election in any case, except one 
in which the employer has so poisoned the environment through unfair 
labor practices that a fair election is not possible. In those cases 
involving egregious employer conduct, the Board may impose a ``Gissel'' 
order that authorizes card checks. This remedy takes its name from NLRB 
v. Gissel Packing Co., which I cited earlier.
    Most often, however, when the Board finds that an employer 
improperly interfered with a campaign, it typically only orders a 
second election, often years after the tainted election, and requires 
the employer to post notices in which it promises not to violate the 
law.
    The standard remedy for discriminatory discharge, the most common 
category of charges filed with the NLRB, is an order to reinstate the 
worker with back pay, but any interim earnings are subtracted from the 
employer's back pay liability, and often this relief comes years after 
the discharge.
    The other common unfair labor practice case involves an employer's 
refusal to bargain in good faith. The remedy is often an order to 
return to the bargaining table.
    In relatively few cases each year, the NLRB finds that the unfair 
labor practices are so severe that it chooses to exercise its authority 
under section 10(j) of the NLRA to seek a Federal court injunction to 
halt the unlawful conduct or to obtain immediate reinstatement of 
workers fired for union activity. The NLRB too rarely exercises this 
authority, and the regional office must obtain authorization from 
Washington, D.C. headquarters to seek injunctive relief.
    Additionally, under the procedures of the act, after the union wins 
an election, the employer may simply refuse to bargain while it 
challenges some aspect of the pre-election or election process. The 
union must then file an unfair labor practice charge under section 
8(a)(5), go through an administrative proceeding, and ultimately the 
matter may be reviewed by a Federal court of appeals, since a Board 
order is not self-enforcing. All of this takes years.
    The following tables reflect that from 1994 to 2006 the number of 
cases handled by the NLRB regional offices declined steadily from 
40,861 cases in 1994 to 26,717 in 2006. Yet, despite this decline in 
workload, in 2005 the median age of unresolved unfair labor practice 
cases was 1,232 days, and for representation cases the median age was 
802 days. In 1995, the NLRB sought 104 injunctions; in 2005, it sought 
15; and in 2006, 25 injunctions. In Washington, D.C., the Board's 
caseload declined from 1,155 cases in 1994 to 448 cases in 2006.
    The number of decisions issued declined from 717 in 1994 to 386 in 
2006. The backlog hit a peak of 771 cases in 1998 and declined to 364 
in 2006, but that decline must be viewed in the context of a case 
intake for the Board that had fallen to only 448 cases in 2006.

                                      TABLE 1.--REGIONAL OFFICE STATISTICS
----------------------------------------------------------------------------------------------------------------
                                   1994     1995     1996     1997     1998     2003     2004     2005     2006
----------------------------------------------------------------------------------------------------------------
Case Intake....................   40,861   39,935   38,775   39,618   36,657   33,715   31,787   29,858   26,717
ULP (Case Age in Days).........      758      893      846      929      985    1,030    1,159    1,232  .......
Representation (Case Age in          152      305      369      370      473      473      576      802  .......
 Days).........................
Section 10(j)..................       83      104       53       45       17       14       15       25  .......
----------------------------------------------------------------------------------------------------------------


                                     TABLE 2.--WASHINGTON OFFICE STATISTICS
----------------------------------------------------------------------------------------------------------------
                                   1994     1995     1996     1997     1998     2003     2004     2005     2006
----------------------------------------------------------------------------------------------------------------
Case Intake....................    1,155    1,138      997    1,084    1,083      818      754      562      448
Decisions......................      717      935      709      873      708      543      576      508      386
Case Backlog...................      585      459      495      672      771      673      636      544      364
----------------------------------------------------------------------------------------------------------------

    What has the Board been doing? Although many cases are resolved at 
earlier stages out in the regions where the NLRB may be generally 
effective, one must ask why it took years for the Board to order 
reinstatement in the cases cited earlier?
    During the Senate's debate on the Employee Free Choice Act, it is 
important that we focus on the employees' interests, not on the 
employers' or the unions' interests. We must protect employees from 
reprisals from either side. We must ensure they have an environment in 
which they may make a free choice. We must ensure that employees' 
decision, whether it is for or against representation, is respected. 
And we must ensure that if the employees do choose to be represented, 
they can have confidence that their employer will bargain with the 
union, and that the employer will not try to undermine the union by 
threatening the employees during bargaining for an initial agreement.
    And finally, we must ensure that the Federal statute designed to 
provide this protection of employees--and the government agency tasked 
with the statute's enforcement--are effective. If the statute needs to 
be modified to provide stronger remedies or more streamlined 
procedures, then that should be addressed. If the NLRB itself is 
causing delay and confusion as to what the law is, then that should be 
addressed. We do not need symbolic votes. We need meaningful debate and 
careful consideration of these important issues. America's workers 
deserve nothing less.
    It is worthwhile to look at the experience of our neighbor, Canada, 
where five of the ten provinces use the card check procedure instead of 
secret ballot elections. In hearings this year before the Senate and 
the House concerning the Employee Free Choice Act, witnesses testified 
that unions are more successful in their organizing campaigns under the 
card check system--perhaps an indication that card check prevents 
employers from exercising undue influence over workers to prevent 
unionization. On the other hand, there was testimony suggesting that 
the Canadian card check system has allowed unions to exert undue 
influence on employees in order to obtain their signatures on union 
recognition cards.
    In a 2004 study of the gap between Canadian and U.S. union 
densities, an economics professor from Ontario found that simulations 
suggest that approximately 20 percent of the gap could be attributed to 
the different recognition procedures--card check or secret ballot 
elections--in the two countries. She further noted that the election 
procedures in Canada are not identical to those of the United States. I 
am intrigued by the fact that union elections in Canada must take place 
within 5 to 10 days after an application or petition is filed, 
depending on the province. In the United States there is no such 
statutory time limit between petition and voting, and it may be several 
months before the election is held. This creates a wider window of 
opportunity for the employer to influence workers, using legal or 
illegal means. The professor also notes that when unfair labor 
practices occur, the differences in procedures and the role of the 
courts in the two countries mean that it is faster and less expensive 
to process complaints in Canada than in the United States.
    In 2001, another economics professor published a study in which he 
noted that in the previous decade, an increased number of Canadian 
provinces had abandoned their long-standing tradition of certification 
based on card check by experimenting with mandatory elections. In 
British Columbia, for example, legislation requiring elections was 
enacted in 1984 and then abandoned in 1993. In examining the impact of 
union suppression on campaign success in British Columbia, the 
professor tested whether the length of an organizing drive had an 
impact on organizing success. The evidence demonstrated that the 
probability of a successful organization of employees decreased by 1 
percent for every 2 days of delay when an unfair labor practice was 
involved. The unfair labor practice itself decreased the probability of 
success even further. The professor observed that mandatory elections, 
as compared with a card check system, were detrimental to unions' 
success. He found that not only did success rates fall, but the number 
of certification attempts fell substantially as well. He concluded that 
unions believe organizing will be more difficult under mandatory voting 
as so are less willing to invest in it. He concluded his paper with 
this observation:

    It seems more likely, however, that the recent trend towards 
compulsory voting represents a shift in beliefs towards elections as a 
preferable mechanism for determining the true level of support within 
the bargaining unit. . . . If governments are opting for a more neutral 
stance towards unions, our results suggest that stricter employer 
penalties should be considered. Currently even when an [unfair labor 
practice claim] is found to be meritorious, penalties for illegal 
employer coercion are largely compensatory. . . . . Furthermore, our 
evidence shows that strict time limits form a useful policy tool in 
encouraging neutrality in the organizing process since the combination 
of union suppression and a length certification process is quite 
destructive.
    I also note a 2006 study published in the Industrial Law Journal by 
an Oxford professor who has studied the statutory recognition 
procedures in England's Trade Union and Labour Relations Act of 1992. 
He compares the English, Canadian and American systems, and states at 
page 9: ``Indeed, the law itself has erected the most substantial 
barriers to unions' organizational success, and this is manifest in the 
dilatoriness of legal procedures. Delay erodes the unions' 
organizational base by undermining workers' perceptions of union 
instrumentality.'' These studies of the Canadian and the English 
experiences are instructive if we are to carefully consider the many 
aspects of the secret ballot election process.
    Since 1935, there have been two major substantive amendments to 
Federal labor law. In 1947, Congress passed the Taft-Hartley Act and, 
in 1959, it passed the Landrum-Griffin Act. These additions to the law 
strengthened workers' right to refrain from union activity and 
regulated the process of collective bargaining and the use of economic 
weapons during labor disputes, but Congress has not amended the 
provisions of Federal labor law that protect the right of self-
organization.
    On July 18, 1977, President Carter asked Congress for labor law 
reform legislation. His proposals were incorporated into H.R. 8410, 
which was introduced on July 19, 1977. An identical bill, S. 1883, was 
introduced that same day by Senators Williams and Javits. Ten days of 
hearings by the Subcommittee on Labor-Management Relations began on 
July 25, 1977.

UNIONS, FORMER SECRETARIES OF LABOR, CIVIL RIGHTS AND THE RIGHT TO WORK 
                 COMMITTEE TESTIFIED AGAINST H.R. 8410

    In the House alone, from 1961 through 1976, over 60 days of 
hearings were held on the National Labor Relations Act. Nineteen days 
of hearing were held between July 15, 1975 and May 5, 1976, concerning, 
among other bills: H.R. 8110, to expedite the processes and strengthen 
the remedies of the Labor Act with respect to delegation and treble 
damages; H.R. 8407 to include supervisors within the protection of the 
Act; H.R. 8408, to improve the administration and procedures of the 
Board in terms of technical amendments; H.R. 8409, to strengthen the 
remedial provision of the act against repeated or flagrant 
transgressors; and H.R. 12822, to amend the National Labor Relations 
Act to expedite elections, to create remedies for refusal-to-bargain 
violations, and other purposes. In 1978, H.R. 8410 was debated for 20 
days in the Senate. After failing 5 cloture votes on the bill and 
amendments, the bill was returned on June 22, 1978 to the Senate 
Committee on Human Resources, and there it died. We should try again to 
address the problems raised during these extensive hearings and 
debates.
    The National Labor Relations Act created a system of workplace 
democracy that to a large extent has served our nation well for more 
than 70 years. American labor unions, with a strong history of social 
progress and accomplishments in improving the workplace, have made 
America and the American economy strong. Yet, despite these successes, 
the NLRA is too often ineffective at guaranteeing workers' rights in 
the face of bad conduct by some employers and some unions.
    The essential plan and purpose of the Wagner Act was described by 
President Franklin Roosevelt when he signed the measure into law:

    ``This act defines, as part of our substantive law, the right of 
self-organization of employees in industry for the purpose of 
collective bargaining, and provides methods by which the government can 
safeguard that legal right. It establishes a National Labor Relations 
Board to hear and determine cases in which it is charged that this 
legal right is abridged or denied, and to hold fair elections to 
ascertain who are the chosen representatives of employees.
    A better relationship between labor and management is the high 
purpose of this act. By assuring the employees the right of collective 
bargaining, it fosters the development of the employment contract on a 
sound and equitable basis. By providing an orderly procedure for 
determining who is entitled to represent the employees, it aims to 
remove one of the chief causes of wasteful economic strife. By 
preventing practices which tend to destroy the independence of labor it 
seeks, for every worker within its scope, that freedom of choice and 
action which is justly his. . . .''

    It has been too long since the Senate has fully and freely debated 
whether our labor laws continue to adequately safeguard workers' 
rights. It is important that we focus on the real problems with the 
NLRA and try to achieve a result that can garner bipartisan support. 
Just take a look at the bipartisan support that has been a necessary 
basis of any successful labor legislation:
    In 1926, only 13 Senators voted against the Railway Labor Act.
    In 1931, the Davis-Bacon Act was passed by voice vote.
    In 1932, the Norris-LaGuardia Act was passed by voice vote.
    In 1935, the National Labor Relations Act (also known as the Wagner 
Act) was passed by voice vote.
    In 1936, the Walsh-Healey Public Contracts Act was passed by voice 
vote.
    In 1938, the Fair Labor Standards Act was passed by voice vote.
    In 1947, the Taft-Hartley Act was passed when 68 Senators voted to 
override President Truman's veto.
    In 1959, only 2 Senators voted against the Labor -Management 
Reporting and Disclosure Act (also known as the Landrum-Griffin Act).
    In 1965, the McNamara-O'Hara Service Contract Act was passed by 
voice vote.
    In 1974, not a single Senator voted against the Employee Retirement 
Income Security Act.
    On January 20, 1959, Senator John F. Kennedy introduced a section 
of the Landrum-Griffin Act. His remarks in his floor speech were 
instructive and prophetic:
    ``[T]he necessity for bipartisanship in labor legislation is a 
principle which should guide us all. . . . So let us avoid . . . . 
unnecessary partisan politics or uninformed or deliberate distortions. 
This is particularly true in the controversial field of labor--which is 
precisely why no major labor legislation has been passed in the last 
decade. The extremists on both sides are always displeased. . . . [But] 
in the words of Business Week magazine . . . `wise guidance in the 
public interest can be substituted for concern over wide apart partisan 
positions.' I wish to mention the key provisions of the bill introduced 
today--the basic weapons against racketeering which will be unavailable 
in the battle against corruption if such a measure is not enacted by 
the Congress this year: . . . Secret ballot for the election of all 
union officers or of the convention delegates who select them. . . . 
This is, in short, a strong bill--a bipartisan measure--a bill that 
does the job which needs to be done without bogging down the Congress 
with unrelated controversies. Without doubt, the future course of our 
action in this area will be plagued with the usual emotional arguments, 
political perils, and powerful pressures which always surround this 
subject.''
    I am voting for cloture today because I believe that it is time for 
Congress to thoroughly debate this issue and to address the 
shortcomings in the National Labor Relations Act in a bipartisan and 
comprehensive manner.
    Mr. Specter. Madam President, I thank the Chair and yield the 
floor.

    Senator Specter. In that statement, I have noted fault 
candidly on both sides, on the side of unions and on the side 
of employers, in tactics which ought not to have been engaged 
in, at least those are the allegations, and the Congress is not 
structured to litigate or adjudicate those matters. It's a 
matter for the Board, for the administrative law judges.
    I've been particularly concerned with the delays. The 
statement that I've already introduced goes into some delay, 
which I will not take the time during this brief opening 
statement to talk about, on the excesses on both sides, and it 
also details some of the very long delays and the delays are 
commonplace.
    In the Goya Foods case, 2006, there was a delay of 6 years. 
In the Fieldcrest Cannon case, 1996, a delay of 5 years. In the 
Smithfield case, a delay of 7 years. In the Lawless 
International case, Homer Bronson case, both 7 years delay, and 
in the United Food and Commercial Workers Union, reported at 
the 447 F.3rd 821, a 2006 opinion of the District of Columbia 
Circuit, it dealt with allegations of improper employer tactics 
in 1994 and 1997 where it took until the year 2000 for the 
administrative law judge to make a finding. The NLRB did not 
adopt the findings until 2004 and the Court of Appeals did not 
affirm until 2006, a delay of some 12 years, and we don't need 
any analysis to say that that's excessive and unsatisfactory.
    The principle of justice delayed and justice denied is well 
known in our judicial system and our Board system and we have 
to find a way to do better.
    I know it has been difficult for the Board to function. 
It's shorthanded with only two of the five members of the 
Board. One of the issues which I think ought to be explored 
legislatively is whether there ought to be a provision that the 
Board member retain his position until his replacement, his or 
her replacement is made.
    So, those are some of the issues, matters of really great 
importance, but we thank you for your service, Chairman 
Schaumber, Board Member Liebman, and look forward to your 
testimony.
    Thank you, Mr. Chairman.
    Senator Harkin. Thank you, Senator Specter. Well, welcome. 
We have two panels this morning. We'll start with our first 
panel here.
    Chairman Peter Schaumber joined the Board in 2002, was 
recently appointed to be chairman. Prior to the Board, he was a 
labor arbitrator for various industry panels. A native of New 
York, Mr. Schaumber graduated from Georgetown and received his 
JD from Georgetown University Law Center.
    Our second panelist is Wilma Liebman, joined the Board in 
1997. Prior to that, Deputy Director of the Federal Mediation 
and Conciliation Service, another agency under this 
subcommittee's jurisdiction.
    I understand Ms. Liebman started her career as a staff 
attorney at the NLRB and originally from Philadelphia, B.A. 
from Barnard College and a JD from George Washington University 
Law Center.
    For this panel and for the second panel, your statements 
will be made a part of the record in their entirety. They're 
fairly lengthy statements. I would ask if you could briefly 
summarize them in, oh, less than 10 minutes, I would sure 
appreciate it, and then we'll open it up for questioning.
    Mr. Schaumber, welcome.

STATEMENT OF HON. PETER C. SCHAUMBER, CHAIRMAN, 
            NATIONAL LABOR RELATIONS BOARD
    Mr. Schaumber. Thank you. On behalf of myself and my 
esteemed colleague, Member Liebman, I want to thank Chairman 
Harkin, ranking member Specter, and all of the members of this 
committee for inviting us to testify on the vitally important 
issue of safeguarding workers' rights.
    Senator Specter, I want particularly to thank you for your 
longstanding and consistent support of the National Labor 
Relations Board. Your example in this regard inspires all of us 
to work to make the promise of the National Labor Relations Act 
a reality.
    A little over 5 years ago, I had the honor and privilege of 
becoming a member of the NLRB. Two weeks ago, I received the 
added honor and responsibility of being designated by the 
President as the Board's Chairman.
    You've invited us here today to discuss two topics: the 
Board's representation election procedures and first contract 
negotiations in those instances in which employees have 
exercised their right to designate a collective bargaining 
representative.
    I'll address those subjects and do my best to answer your 
questions concerning them. Preliminarily, however, as you know, 
it's the Board's tradition that sitting Board members avoid 
commenting on legislative proposals to amend the act, and I 
intend to honor that tradition in my comments today.
    As the Supreme Court has emphasized, the act is wholly 
neutral when it comes to the basic choice of employees to 
choose or reject union representation. The act guarantees 
employees the right to make their own informed judgments about 
the benefits of union representation and collective bargaining 
and to express those judgments through secret ballot elections, 
which both the courts and the Board have frequently 
acknowledged to be the preferred and most reliable means of 
determining employee sentiment.
    One of the Board's chief responsibilities is to administer 
the electoral process through which employee free choice is 
effectuated and the Board's record in this regard, I believe, 
is an exemplary one.
    The Board, by the way, has delegated the authority to 
conduct elections to the general counsel. Very briefly, as you 
know, the process begins with the filing of a petition. The two 
most frequently filed are RC or certification petitions and RD 
or decertification petitions; that is, to certify a union or 
decertify a union.
    Far less frequently, there are RM petitions which employers 
may file under certain circumstances.
    The agency's goal is to conduct an election within a median 
time of 42 days. In fiscal year 2007, we exceeded that goal, 
achieving a petition-to-election median of 39 days. This record 
of timeliness is owing in large measure to the agency's success 
in encouraging the parties to resolve pre-election issues by 
mutual agreement. In fiscal year 2007, stipulated pre-election 
agreements were achieved in 90 percent of the cases.
    Needless to say, due process cannot be sacrificed on the 
altar of speed. In the less than 10 percent of cases where the 
parties cannot resolve their pre-election differences 
voluntarily, the region conducts a pre-election hearing and 
issues a decision and direction of election.
    In fiscal 2007, nearly 94 percent of decision and 
directions were issued within 36 days of petition filing and 
that included the hearing, briefing by the parties, and the 
decision.
    If a party then asks the Board to review the decision, the 
Board's goal is to act on the request within 14 days of filing. 
In fiscal year 2007, there were 113 pre-election requests for 
review. The Board denied review in 96 of them in a median time 
of 14 days.
    Once again, I think the Board's statistics are impressive. 
In addition to the 39 days for an election, 93 percent of all 
elections were concluded within 56 days of filing, 99 percent 
of all elections within 80 days.
    I want to emphasize something which was not mentioned in my 
statement because I was unaware of a bit of a discrepancy in 
the figures. This refers to those elections which were not 
blocked. If a ULP is filed during the organizing campaign and 
after a petition for election is filed, the union may file a 
charge and the election can be blocked.
    In 2007, 4.8 percent of elections were blocked for a period 
on the average of 42.5 days as a result of such charges having 
been filed. Now the election doesn't have to be blocked. The 
union may request that it proceed. The region presumes that the 
charge is meritorious. It simply asks itself the question 
whether the election can go forward and without being tainted, 
if the charge were meritorious.
    As far as unfair labor practice cases, the agency's record 
of timeliness and efficiency in processing election petitions 
is only part of the story. To make the act's promise of 
employee free choice meaningful, the Board has a responsibility 
to ensure, first, that this choice is registered in an 
atmosphere free of intimidation and coercion, and, second, when 
employees have freely chosen union representation, that this 
choice be safeguarded through vigorous enforcement of sections 
8(a)(5) and 8(a)(3) of the act.
    These responsibilities the Board fulfills in processing 
unfair labor practice cases. As I detail in my written 
statement, I believe here, too, the Board's track record, while 
subject to some of the notable exceptions mentioned by Senator 
Specter, is nevertheless an impressive one. I won't repeat the 
supporting data set forth in my written statement. I'd like to 
just make a few points.
    First, the Board's inventory of pending cases is at its 
lowest level in over 30 years and that is not wholly attributed 
to reduced intake, although concededly it is a result in part 
of reduced intake, also.
    Second, 97 percent of meritorious ULP charges are settled.
    Third, from December 2002 through September 30, 2007, the 
end of the Board's fiscal year, the Courts of Appeal enforced 
Board decisions in all or in part 88 percent of the time. 
Indeed, in fiscal year 2007, that figure was 97 percent. These 
are some of the very highest rates of enforcement in the 
Board's history.
    By contrast, in fiscal year 2002, the courts enforced the 
Board in whole or in part less than 71 percent of the time.
    That having been said, as mentioned, some cases, it is 
true, have languished. The reasons therefore are multiple and 
in part beyond the agency's control, such as the absence of a 
full Board. Those cases now, however, I believe, are the 
exception. The rule is seen now in the many, many ULP cases 
disposed of quickly, efficiently and fairly.
    Very briefly with respect to first contract negotiations. 
The extent of the problem, that is, the extent to which ULPs 
result in the failure of the parties to reach first contract, 
is unclear.
    In the general counsel's memo of April 19, 2006, he said, 
and I quote, ``Charges alleging that employers have refused to 
bargain are meritorious in more than a quarter of all newly-
certified units (28 percent).''
    These numbers, however, appear inconsistent with other 
information we have received on meritorious ULP charges filed 
in first contract bargaining. Consequently, we have asked the 
general counsel for an explanation and we will provide the 
committee with that information as soon as it is received.
    [The information follows:]

    First, I noted in my hearing testimony that I would clarify an 
apparently inaccurate figure reported by the agency's General Counsel 
in an April 29, 2006 memorandum concerning unfair labor practice 
charges filed during first contract negotiations, a figure referenced 
in my written submission. Specifically, the General Counsel's 
memorandum stated that ``Charges alleging that employees refused to 
bargain are meritorious in more than a quarter of newly certified units 
(28 percent).'' In fact, from fiscal year 2002 through fiscal year 
2005, unfair labor practice charges were filed in 925 of the 5,483 new 
bargaining situations, resulting in a 17 percent figure, rather than 28 
percent. The merit rate for such charges was 44.4 percent during the 
years fiscal year 2002-2005, and fell to 37.25 percent in fiscal year 
2007. Details are set forth in the attached memorandum.
    Second, Senator Harkin noted that he had been informed that 32 
percent of all election petitions filed in 2007 failed to result in an 
actual election, and he questioned why. I explained that I did not have 
the relevant data with me, but would subsequently provide it. As 
reflected in the attached memorandum, the discrepancy between the 
number of petitions filed and elections conducted is due in large part 
to the alternative disposition of many petitions, primarily as a result 
of voluntary withdrawals of petitions by the parties or administrative 
dismissals for various reasons (such as an inappropriate unit or lack 
of the required 30 percent showing of interest to support an election 
petition).
    Third, the committee requested data regarding the breakdown of 
election types during fiscal year 2007. That information is also 
included in the attached memorandum, which reflects that there were a 
total of 2,009 elections conducted during the fiscal year, the vast 
majority of which were either RC (representation) case initial 
elections or RD (decertification) case initial elections.
    Finally, the committee noted the frustration expressed by some of 
the agency's constituents regarding the statistical information (or 
lack thereof) maintained by the agency. We share that concern. The 
attached memorandum briefly discusses the agency's computer case 
management system and the data gathering challenges we face with our 
existing technology and resources. However, as the memorandum also 
explains, we are in the process of developing a new database management 
system to be deployed in the relatively near future. That system should 
provide the agency with the ability to provide more general 
information, including statistical data, to Congress and the general 
public.
                                 ______
                                 
                               MEMORANDUM
                                                    April 28, 2008.
To: The Board
From: Ronald Meisburg, General Counsel
Subject: Statistics

    You have requested that I respond to certain questions addressed to 
you during the Hearings conducted on April 2, 2008, before the 
Committee on Appropriations, Subcommittee on Labor, Health and Human 
Services, Education, and Related Agencies. Additional questions were 
later communicated to you by committee staff and you have requested 
that I provide answers to those questions as well. The inquiries 
concern statistics that are maintained in the Case Activity Tracking 
System (CATS), the system we use to manage the case load and staffs of 
the Regional Offices.
    One statistic requiring clarification concerns the merit rate for 
charges alleging employer unfair labor practices during bargaining for 
an initial contract after the election or recognition of a labor 
organization. A ``merit'' charge is one in which the Regional Director 
determines that it is either appropriate to issue a complaint or 
approves a settlement.
    In Memorandum GC 05-06 ``First Contract Bargaining Cases,'' I 
stated that charges alleging that employers have refused to bargain are 
meritorious in more than a quarter of all newly-certified units (28 
percent). That number assumed that each meritorious charge was filed in 
a different new bargaining relationship. However, multiple meritorious 
charges, which may vary in their severity and impact, are filed in some 
new bargaining relationships, and none in others. Taking the latter 
factor into account, we have now determined that from fiscal year 2002 
through fiscal year 2005, there were meritorious unfair labor practice 
charges filed in 925 of the 5,483 new bargaining relationships that 
arose during that period. Thus, such charges were filed in 17 percent 
of new bargaining relationships, rather than the 28 percent cited in 
Memorandum GC 05-06.
    I am currently preparing a report on the First Contract Initiative 
that will make the change noted above and will update other information 
contained in Memorandum GC 06-05. That memorandum should be completed 
shortly and will be released to the public. It will also report a 
reduction in the merit rate for all first contract bargaining charges 
from 44.4 percent in the years fiscal year 2002-2005 to 37.2 percent in 
fiscal year 2007. The merit rate for all unfair labor practice cases in 
2007 was 36.6 percent, so that the first contract case merit rate, at 
least for fiscal year 2007, was roughly comparable to the merit rate 
for our caseload overall. During the 2002-2005 period, almost one-half 
of charges alleging that employers refused to bargain occurred in the 
initial contract bargaining stage. For fiscal year 2006 through fiscal 
year 2007, this figure dropped to 25 percent.
    It is still much too early to determine the causes of this drop in 
the merit rate. They may only be aberrations or they may be, in part, 
an effect of our reduced ``R'' case intake. I believe, however, that 
our special commitment to protect the initial bargaining process has 
had some effect on these numbers. Indeed, in my view, the consideration 
and use of injunctive relief under section 10(j) and the pursuit of 
special remedies for unfair labor practices committed during 
negotiations of initial contracts have sent a clear message of the 
agency's commitment to protecting freely-chosen collective bargaining.
    I would also like to bring to the Board's attention a change in a 
previously reported 2007 statistic--the number of initial elections. In 
my Summary of Operations for fiscal year 2007, I reported on Office of 
the General Counsel performance based on preliminary statistical 
reports. In that memorandum, I reported that 2,080 initial 
representation elections had been conducted during fiscal year 2007. 
Further review of the data indicates that number is 2,009.
    The Committee has also requested a breakout of all elections 
conducted in fiscal year 2007. The total number of all types of 
elections conducted in fiscal year 2007 was 2,063. This includes 2,009 
initial elections, broken down as follows:
  1,562 RC (representation) Case Initial Elections
  367 RD (decertification) Case Initial Elections
  21 RM (employer-filed) Case Initial Elections
  59 UD (union security deauthorization) Case Initial Elections
    The remaining elections were rerun elections (49) (elections 
conducted after initial election results are set aside because of 
objectionable conduct) and run-off elections (5) (second elections 
conducted when the results of initial elections are inconclusive, e.g., 
tied elections where there is more than one union).
    During the hearings, the Committee noted that a total of 3,056 
petitions were filed in fiscal year 2007 (2,302 RC, 92 RM, and 662 RD) 
and asked what happened to the petitions that did not result in 
elections. Most of the difference between the number of petitions filed 
and the number of elections conducted in fiscal year 2007 is the result 
of alternative dispositions of the petitions: petitions withdrawn (985 
petitions); petitions dismissed (98 petitions); and petitions blocked 
by unfair labor practice cases (41 petitions).
    There is also always some additional discrepancy between the number 
of elections conducted and the number of petitions filed during a 
particular year because some elections conducted at the beginning of 
the year will be held based on petitions filed in the preceding year 
and some petitions filed late in the year will be resolved by elections 
held in the succeeding year.
    Finally, a word about CATS and our information technology program 
and the goals thereof. As you know, CATS is a computer database for 
case management. Planning for this system began in the mid-1990s and it 
was initially deployed in 2000. It has been utilized since by regional 
and headquarters managers to ensure the timely and efficient processing 
of unfair labor practice and representation cases in our regional 
offices. Information on the face of an unfair labor practice charge or 
representation petition form is entered into CATS upon the docketing of 
the matter in a Region. Additional information pertinent to the 
processing of the case is later entered into data fields in the CATS 
program by staff in the Regions or in headquarters as the matter 
progresses through the case handling process. There are approximately 
400 fields in the screens that are available to record case activity 
information relevant to an unfair labor practice case alone. Although 
not every field will be utilized in every case, many of the fields 
receive data during the course of the processing of the average case. 
The database is ``dynamic,'' in that it changes every time a new case 
handling activity is entered into the system. Each of the agency's 51 
field offices enters, updates, and corrects its casehandling data on a 
daily basis.
    As seen above, there will sometimes be differences in the numbers 
reported with respect to NLRB case handling activity over time. 
Occasionally these differences are attributable to the dynamism of the 
system and on other occasions it is the result of the erroneously 
entered data. We make a great effort to keep our data as error free as 
possible by means of regular ``data integrity'' exercises that cross-
check and verify the data. These exercises are accomplished with the 
use of computer programs designed for that purpose. We also conduct 
visual review of the CATS entries of a randomly selected sample of 
cases undertaken in conjunction with the quality review of case files 
by managers in our Division of Operations-Management in Washington.
    Despite all these efforts there are some errors. Indeed, this is 
principally a by-product of so many transactions being entered at 51 
different locations by at least 51 agency personnel. Nonetheless, we 
generally seek and achieve an error rate of less than 1 percent. While 
any error rate is regrettable, this low error rate ensures that we are 
able to manage our workload and deliver timely case processing. Very, 
very infrequently we do not meet that goal and the statistic on the 
number of elections conducted in fiscal year 2007 (discussed above) was 
such a situation as the difference of 71 elections represents an error 
rate of 3.4 percent. I am pleased to note that our data integrity 
program did catch and correct this error.
    CATS is the successor to what was called the Case Handling 
Information Processing System (CHIPS), which for many years was the 
source of the case datautilized to manage the caseload and staffing in 
our Regional Offices. CHIPS was preceded by an earlier partially 
automated system. All of these systems were and are designed to aid us 
in the management of our work. They do not seek to provide statistical 
analysis of labor management issues. The statutory prohibition against 
``economic analysis'' by the agency has always made us reluctant to 
have a case information system that analyzed our cases beyond that 
necessary to manage the workload.
    I am advised, however, that in developing CATS former General 
Counsel Fred Feinstein did direct that the system include information 
about first contract bargaining unfair labor practices and unfair labor 
practices arising during organizing campaigns. The information provided 
here about first contracts is a result of that action. As to the number 
of unfair labor practices during organizing campaigns, we discovered 
last year that not every Regional office had been entering this 
information as they were supposed to. When this was discovered, I 
directed that careful attention be paid to this statistic and that 
Regions go back and enter the appropriate data so that we would have 
full year statistics for cases closed in fiscal year 2007. As a result, 
I can report that 2,056 unfair labor practice charges or 1,552 unfair 
labor practice ``situations'' involving organizing were closed in 
fiscal year 2007.\1\ Approximately 40 percent of these closed 
``situations'' were meritorious cases that resulted in settlement or 
compliance, providing $9,969,615 in back pay to 1,643 individuals. In 
these situations, 163 employees accepted reinstatement, 107 declined 
reinstatement offers, and 140 waived offers of reinstatement.
---------------------------------------------------------------------------
    \1\ ``Situations'' are groups of unfair labor practice charges 
involving the same parties, the same set of circumstances, and the same 
underlying disputes.
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    As the Board knows, we are currently in the process of developing a 
new database management system that will succeed CATS. The vision for 
this project is to build an enterprise-wide, common case management 
platform using the latest technologies for interfacing with the public 
and managing cases across the NLRB's offices in an automated, efficient 
and transparent way. The Next Generation Case Management system will 
enable the NLRB to replace or optimize manual, paper-based processes 
and ``stovepipe'' legacy systems with a standards-based solution 
leveraging Commercial Off-The-Shelf tools and a Service-Oriented 
Architecture approach. Testing of the first phase of the new system is 
currently being conducted in two regional offices and in the Office of 
the General Counsel in Washington. Agency budget constraints have to 
some extent dictated the pace at which necessary hardware, software and 
contract developer services, required for agency-wide rollout of the 
Next Generation system, can be acquired. Nonetheless, I am optimistic 
that this new system will be operational by 2010. Given the advanced 
nature of this system, we should be able to provide more general 
information about our cases to Congress and the public.
    It is our desire to provide Congress with whatever statistics it 
desires us to keep, consistent with our statutory authority to collect 
and disseminate data. We welcome the input of the Board and the 
Committee in identifying what, if any, additional information would be 
useful to you and them.

    Mr. Schaumber. It may be, but I'm not certain, that the 25 
percent figure is the total number of charges filed arising out 
of first contract negotiations but does not represent, if you 
will, the bargaining scenarios; that is, within any one first 
contract bargaining, there could be multiple ULPs, there could 
be ULPs filed over a period of time. So, we don't know how many 
individual certifications are impacted. That may or may not be 
the explanation.
    Of course, where employees do seek to bargain, the agency 
has a variety of remedies in its arsenal which I have outlined 
in my written statement. It is true that first contract 
bargaining tends to take longer than successor negotiations. 
That stands to reason. The bargaining may begin in an 
atmosphere of harsh feelings. This, I might add, is not 
entirely dissimilar from bargaining that can take place after a 
corporate campaign which results in an employer executing a 
neutrality card check agreement.
    In addition, the employer may be unfamiliar with collective 
bargaining and his obligations under it. The parties don't know 
one another and they have to establish bargaining procedures 
and core terms and conditions of employment which may make 
negotiations protracted and difficult. Much of this framework 
can then be taken for granted in talks for successor contracts.
    The fact that initial contracts take longer than successor 
ones or that parties do not reach agreement does not in my mind 
evidence a failure on the part of the Board to implement the 
act's requirement that the parties meet and bargain in good 
faith.
    As the Supreme Court stated some 38 years ago, it was never 
intended that the government would step in, become a party to 
the negotiations and impose its own version of a desirable 
settlement.
    In my statement, I outlined different initiatives which the 
agency has taken to expedite elections and facilitate first 
contract negotiations. I won't repeat those now, but I want the 
committee to know that the agency is not asleep, that it is 
trying its best and even though our record with regard to 
election petitions, I believe, is impressive, we're trying to 
shorten the time even further and we are also taking consistent 
and vigorous positions with respect to misconduct which occurs 
during first contracts.
    In conclusion, as I hope I have shown, the Board is 
successfully and efficiently carrying out its statutory 
mandate. We are continuing to find new and different and 
frequently better ways of investigating, processing, litigating 
and deciding cases and conducting elections.
    The agency's accomplishments, gauged by almost any 
statistical measure, have been impressive and they are a 
testament to the dedication and diligence of our employees. We 
frequently hear that regardless of the facts, the matter is one 
of perception, that the agency and the statute are hopelessly 
broken and inefficient.
    I respectfully disagree. If there is a misperception, then 
our focus should be on correcting that misperception through 
communication and outreach efforts, not compounding that 
misperception by denigrating the Board. I hope to help correct 
that this morning.
    In my view, both the agency and the NLRA have proven to be 
remarkably flexible and adaptive over the years. Once again, I 
can give many examples of that adaptability, if the committee 
is interested.
    I note that some commenters have suggested that the radical 
decline in union density in the private sector since 1954 can 
be attributed to an increase in employer misconduct, 
deficiencies in the act and the alleged lack of vigorous 
enforcement under Republican administrations.
    My response is that there is no convincing scientific or 
statistical data to demonstrate any such causal connection. 
Indeed, the frequently cited statistics about the increase in 
employer unfair labor practices and the prevalence of 
discrimination during organizing campaigns have been called 
into question by a number of scholars, information which I have 
with me.
    In my view, the issue is far more complex and nuanced. 
There are multiple factors, social, economic, financial, and 
attitudinal, that have nothing to do with the act, the Board or 
employer misconduct, that have contributed significantly to 
this decline in union density. This is supported by the fact 
that unionization is in decline in most Western democracies.

                           PREPARED STATEMENT

    I do not believe that either the act or the Board is 
perfect. However, I believe both have effectively and 
efficiently served to protect the rights of American workers 
for many years.
    This concludes my statement. I would be pleased to answer 
any of your questions.
    Senator Harkin. Thank you, Mr. Schaumber.
    [The statement follows:]

                Prepared Statement of Peter C. Schaumber

                              INTRODUCTION

    On behalf of myself and my esteemed colleague, Member Liebman, I 
want to thank Chairman Harkin, ranking member Specter, and all of the 
members of this committee for inviting us to testify today on the 
vitally important issue of safeguarding workers' rights. Senator 
Specter, I want particularly to thank you for your longstanding and 
consistent support of the National Labor Relations Board. Your example 
in this regard inspires all of us who work to make the promise of the 
National Labor Relations Act a reality.
    A little over 5 years ago, I had the honor and privilege of 
becoming a Member of the NLRB. Two weeks ago, I received the added 
honor, and responsibility, of being designated by the President to 
serve as the Board's Chairman. Just to give you a little background, I 
began my legal career as a local prosecutor. I then served as an 
Assistant U.S. Attorney for the District of Columbia and as Associate 
Director of a Law Department Division in the Office of the Comptroller 
of the Currency before entering private practice, where I primarily 
engaged in federal trial and appellate litigation. Before joining the 
Board, I served for a number of years as a labor arbitrator.
    You have invited us today to discuss two topics: (1) the Board's 
representation-election procedures, and (2) first contract negotiations 
in those instances in which employees have exercised their right to 
designate a collective bargaining representative. I will address those 
subjects and do my best to answer your questions concerning them. 
Preliminarily, however, it has long been a tradition of the Board that 
its sitting Members avoid commenting on legislative proposals to amend 
the Act or on matters pending before the Board. This tradition is 
intended to preserve our role as impartial arbiters of labor-management 
disputes under the act, and I will respectfully adhere to it in my 
testimony.
    The NLRB is an independent Federal agency created by Congress in 
1935 to administer the National Labor Relations Act (NLRA or Act), the 
primary law governing relations between unions and employers in the 
private sector. A cornerstone of the NLRA, as amended in 1947 by the 
Taft-Hartley Act, is the principle and practice of workplace democracy. 
That is, employees have the right to engage in, or to refrain from, 
organizing activities, and to express their choice on representation in 
an atmosphere free from coercion. The Board's paramount purpose is to 
insure that those rights, guaranteed in section 7 and implemented in 
sections 8 and 9 of the act, are fully realized. The facts and figures 
that I will present this morning will show that the Board's record in 
achieving these goals is an exemplary one.

                 THE NLRB'S REPRESENTATION CASE PROCESS

    Though many of this committee's members are familiar with the 
Board's representation case process, it may be helpful to briefly 
outline some general statutory principles and how the system works in 
practice.
    First, as the Supreme Court has emphasized, ``[t]he act is wholly 
neutral when it comes to [the] basic choice'' of employees to choose or 
reject union representation.\1\ That is, the act guarantees employees 
the right to make their own informed judgments about the benefits of 
union representation and collective bargaining. Although employees are 
permitted to choose union representation through other means, the act 
ensures that employee free choice may be tested through secret ballot 
elections, which both the courts and the Board have frequently 
acknowledged as the preferred and most reliable means of determining 
employee sentiment.\2\ 
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    \1\ NLRB v. Savair Mfg. Co., 414 U.S. 270, 278 (1973).
    \2\ NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969); 
Underground Service Alert, 315 NLRB 958, 960 (1994).
---------------------------------------------------------------------------
    The Board's electoral process--or, more precisely, its 
representation process--is described in section 9 of the act. Section 
9(a) sets forth the principles of majority rule and exclusive 
representation. Section 9(b) deals with the determination of the unit 
of employees in which an election will be held--that is, an 
``appropriate'' bargaining unit. Section 9(c) details the actual 
representation process, from the filing of an election petition through 
the post-election certification of the employees' choice.
    The representation process begins when a petition is filed with one 
of the Board's regional offices. The two most frequently filed 
petitions are RC and RD petitions. RC petitions seek an election to 
certify a union as the unit employees' bargaining representative. RD 
petitions seek an election to decertify a union. RM petitions, which 
are filed by the employer, may be filed if an employer receives a 
demand for recognition from a union, or if the employer is reasonably 
uncertain whether an incumbent labor organization continues to enjoy 
majority support.
    After a representation petition is filed, it officially becomes a 
``case''--a representation or ``R'' case. Consistent with the primacy 
of elections in the scheme of the act, the Board gives such cases a 
high priority. The Agency's goal is to conduct an election within a 
median of 42 days of the filing of the petition. Thus, when a petition 
is filed, the regional office promptly assigns a Board agent to process 
it, generally on the very day the petition is filed. The Board agent 
contacts the parties and investigates certain threshold issues, 
including jurisdiction, possible bars to an election (such as 
outstanding unremedied unfair labor practices), a union certification 
or earlier valid election within the preceding year, and the 
sufficiency of the showing of employee interest in support of the 
petition (30 percent). In the course of this investigation, the agent 
attempts to convince the parties to agree on an appropriate unit as 
well as on the date, time, and location for the election. Typically, 
over 90 percent of pre-election issues are resolved through agreement 
of the parties.
    In those relatively few cases where the parties do not reach 
agreement on the pre-election issues, the region conducts a pre-
election hearing. After hearing the evidence and reviewing the parties' 
briefs, the Regional Director issues a decision either directing an 
election in an appropriate unit or dismissing the petition. Any party 
may request review by the Board of the Regional Director's decision. 
Section 102.67(c) of the Board's Rules and Regulations prescribes 
standards that the Board applies in deciding whether to grant or deny 
such a request for review. The Board's goal is to act on a request for 
review within 14 days of its filing. If review is granted, the record 
of the pre-election hearing is transmitted to the Board, and the 
parties have 14 days to file briefs. Meanwhile, however, the election 
usually goes ahead as planned, and the ballots are impounded pending 
resolution of the issue or issues under review.
    During the election, the parties and the Board agent may challenge 
the eligibility of particular individuals who seek to vote, and those 
ballots are impounded. After the election, the Board agent tallies the 
uncontested ballots and immediately communicates that tally to the 
parties. The parties have 7 days to file objections to the election. If 
no objections are timely filed, and if any challenged ballots are 
insufficient in number to change the election outcome, the Regional 
Director issues a certification of election results (if the union has 
lost) or a certification of bargaining representative (if the union has 
won). If there are objections or enough challenged ballots to 
potentially affect the outcome, the region conducts an investigation 
and, if necessary, a hearing before a Hearing Officer, after which 
briefs may be filed. The Regional Director then issues a decision 
resolving the objections and/or challenges. Parties may appeal these 
post-election decisions to the Board.

                        THE AGENCY'S PERFORMANCE

Representation cases
    By any definition, the agency is successfully carrying out its 
statutory mission to administer the representation procedures 
authorized under section 9 of the National Labor Relations Act.
    In fiscal year 2007, 2,302 RC petitions, 662 RD petitions, and 92 
RM petitions were filed, for a total of 3,056 representation petitions. 
Of the 2,302 RC petitions filed, elections occurred in 2,030 cases. As 
stated above, the Agency has established as one of its overarching 
goals to conduct elections within a median of 42 days of petition-
filing. We exceeded that goal in fiscal year 2007: the median number of 
days from petition to election was 39 days, with 93 percent of all 
elections being conducted within 56 days.
    These results were achieved in part because mutually agreed-upon 
stipulated pre-election agreements were reached between the union and 
the employer in the vast majority of cases--91.2 percent in fiscal year 
2007. In the 186 cases in which there was no stipulated election 
agreement, Regional Directors held hearings and issued pre-election 
Decisions and Directions of Election (D&DE). Even there, however, 93.9 
percent of D&DEs were rendered within 36 days of petition filing. That 
is 36 days to hold the hearing, to obtain briefs from the parties, to 
review the record and briefs, and to write the Regional Director's 
decision. Now that, I submit, is prompt action.
    The results of elections held in fiscal year 2007 show that the 
union was successful a majority of the time. Employees chose a 
collective bargaining representative in 59.2 percent of RC elections, 
35.1 percent of RD elections, and 33.3 percent of RM elections, for an 
overall union success rate of 50.4 percent. That rate has increased in 
the first five months of fiscal year 2008. During that time, the NLRB 
has held 737 representation elections, of which unions won 57.1 
percent, with 94.6 percent of elections held within 56 days.
    In 2007, objections or challenges were filed in only 155 elections. 
Of that number, some were withdrawn and 127 required decisions by a 
Regional Director. Of those 127, 55 were decided after investigation 
and without a hearing; 73, after a hearing. The median number of days 
from the filing of objections or challenges to the issuance of a 
Regional Director's decision was 25 in non-hearing cases, 61 in hearing 
cases.
    Parties can also request Board review of a pre-election Decision 
and Direction of Election, and they can file a post-election appeal to 
the Board from a Regional Director's or Hearing Officer's report on 
objections or challenged ballots. In fiscal year 2007, fewer than one-
half of 1 percent (.04 percent) of the total number of representation 
cases processed by the Regional Offices--numerically, 224 cases--were 
appealed to the Board. Specifically, there were 113 pre-election 
requests for review. The Board denied review in 96 of these cases in a 
median time of 14 days. There were 111 post-election appeals filed. The 
Board issued decisions in 105 of these cases in a median time of 131 
days. The Agency resolved 78.83 percent of all representation cases 
within 100 days.
Unfair labor practice cases
    The Board's exemplary track record in processing representation 
cases provides an incomplete picture, however, of the Board's overall 
effectiveness in protecting worker's rights under section 7 of the act. 
After all, the employee's right to make an informed election choice is 
realized only if it is exercised in an atmosphere free of intimidation 
and coercion. Furthermore, when a collective bargaining representative 
has been freely chosen by the employees, the Board vigorously enforces 
the obligations of the parties to meet and bargain in good faith and, 
when necessary, acts to protect the union's majority status from 
unlawful denigration by the employer.
    As the following data show, the Board's overall record in 
processing all unfair labor practice cases is quite impressive.
    First, the big picture. From fiscal year 2002 through fiscal year 
2007, the Board issued almost 500 cases a year. As of the end of fiscal 
year 2007, the median number of days an unfair labor practice case had 
been pending at the Board was 181; for representation cases, the median 
was 88 days. As of the same date, the Board had reduced its backlog to 
207 cases--a reduction of some 66.5 percent over 5 years. The Board is 
at the lowest case inventory level in over 30 years. Granted, a lower 
intake of cases helped in this effort, but so did the very hard work of 
the agency's many dedicated public servants.
    The NLRB seeks to serve the public quickly, efficiently, and 
fairly. In the overwhelming number of cases, this objective is 
achieved. To illustrate, about one-third of unfair labor practice 
charges filed with the Agency are determined, after investigation, to 
have merit. Most of these investigations are completed in about 77 
days. The other two-thirds of the cases are withdrawn or dismissed, 
usually for lack of merit or insufficient evidence.
    Where settlement of meritorious cases could not be achieved, 
complaint issued in a median of 98 days from the date of the charge in 
fiscal year 2007, and a median of 89 days thus far during fiscal year 
2008. Stated differently, in about 12 weeks, the Agency is able to 
complete intake, docket, investigate, and determine, from among the 
thousands of charges filed (more than 22,000 in fiscal year 2007), 
which cases warrant further proceedings and which do not.
    In fiscal year 2007 and for the first 5 months of fiscal year 2008, 
the Board was able to resolve, through settlements, about 97 percent of 
those cases determined to be meritorious. Absent settlement, cases go 
to hearing before an Administrative Law Judge, where the attorney 
representing the General Counsel presents evidence to try to prove the 
allegations of the complaint. The judge hears the evidence, resolves 
disputes in the testimony between witnesses, identifies the legal 
issues, reviews the parties' briefs, and issues a decision, which then 
can be appealed to the five-Member Board in Washington. In about one-
third of the judges' decisions, compliance is achieved without the need 
for further review. The other two-thirds--again that is of the 3 
percent of all meritorious charges--are appealed to the Board for 
resolution.
    Once the Board decision has issued, an aggrieved party may seek 
review in the U.S. Courts of Appeals. That occurred in 119 Board cases 
in fiscal year 2007, and 42 cases during the first 5 months of fiscal 
year 2008. The Board's enforcement rate on appeal has been outstanding. 
In fiscal year 2007, appellate courts enforced 97 percent of the 
Board's decisions in whole or part. For the first five months of fiscal 
year 2008, the Board prevailed in whole or part in 91 percent of the 
cases. Further appeal to the Supreme Court is possible, but happens in 
only a minute number of cases.
    In terms of time and efficiency, the NLRB's administrative process 
works extraordinarily well in the overwhelming number of the cases 
filed with our regional offices. For the 2 percent of the cases that 
reach the Board for decision, the vast majority issue within a 
reasonable time. However, the process does occasionally bog down. 
Several cases have languished at the Board for unconscionable periods, 
although not infrequently for reasons (e.g., turnover among Board 
Members, multiple court remands) beyond the Agency's control. 
Regrettably, these few instances of inefficiency \3\ often become the 
standard against which the Board is judged. That is not only misleading 
as a matter of fact, but it does a great disservice to the agency's 
dedicated and talented employees.
---------------------------------------------------------------------------
    \3\ The cases in which the Board has failed to meet its case 
processing goals under the Government Performance and Results Act 
(GPRA), only represent about one-half of 1 percent of the total number 
of cases the Agency receives.
---------------------------------------------------------------------------
    The Board's success in enforcing the act and achieving monetary 
remedies for employees is also worthy of note. In bottom-line terms, in 
fiscal year 2007 the NLRB collected $110,388,806 in backpay and 
obtained reinstatement offers for 2,456 employees. During the first 5 
months of fiscal year 2008, the agency has collected $30,156,630 in 
backpay and obtained reinstatement offers for 666 employees. Over the 
past 5 years, the agency has recovered a total of $604 million in 
backpay, fines, and reimbursement of fees and dues, with 13,279 
employees offered reinstatement.

                      FIRST CONTRACT NEGOTIATIONS

    The NLRA and Board and court precedent establish a number of 
principles applicable to collective bargaining generally, including 
bargaining for initial contracts. For example, employers and unions 
must meet and bargain in good faith and at reasonable times. Similarly, 
the duty to bargain includes a duty to provide, upon request, 
information that is relevant to subjects of bargaining. The act also 
precludes abusive conduct, direct dealing with employees, or other 
behavior designed to undermine a union's status as the employee's 
designated representative. The act does not, however, compel parties to 
reach agreement on any contractual provision, and the Board has no 
authority to interject itself into the bargaining process or to impose 
what it believes would be a desirable agreement. See, e.g., H.K. Porter 
Co. v. NLRB, 397 U.S. 99 (1970), in which the Supreme Court observed 
that the Board is without power to compel an employer and a union to 
agree and, when agreement is impossible to achieve, ``it was never 
intended that the Government would step in, become a party to the 
negotiations and impose it own version of a desirable settlement.''
    However, the Board does have the authority to and will intervene 
when an employer engages in conduct designed to delay, undermine, or 
frustrate bargaining, such as:
  --Refusing to meet at reasonable times and/or places.
  --Surface bargaining or bargaining in bad faith.
  --Making unexplained regressive proposals.
  --Denigrating the union or engaging in direct dealing.
  --Refusing to provide the union with information.
  --Making unilateral changes in terms and conditions of employment.
  --Declaring impasse prematurely and implementing its proposals.
  --Refusing to execute an agreement reached in negotiations.
    In such circumstances, where a violation is found, the Board has 
wide latitude to order remedies designed to bring the parties back to 
the table and to restore the bargaining relationship. Among the 
remedies available to the Board are the following:
  --Ordering a party to cease and desist from unlawful conduct.
  --Ordering the wrongdoing party to bargain in good faith.
  --Requiring bargaining to occur on fixed, reasonable schedules.
  --Extending the ``certification year'' period during which the 
        union's majority
    status cannot be challenged.
  --Requiring the prompt production of information that is necessary 
        and relevant to negotiations.
  --Requiring the restoration of unilaterally changed terms and 
        conditions.
  --Awarding backpay to employees for losses resulting from unilateral 
        changes.
  --Awarding reinstatement and back pay to employees discharged for 
        participating in the negotiation process.
  --Reimbursement of bargaining costs.
    In addition, although the Act does not require the parties to reach 
an agreement or authorize the government or a government-sponsored 
arbitrator to impose contract terms, the Act, a robust body of Board 
law, and economic realities all serve to exert pressure on the parties 
to reach prompt agreement. For example:
  --Negotiations can be expensive and time consuming for both employers 
        and unions and may detract from other imperatives (for the 
        employer, providing goods and services; for the union, 
        organizing new and servicing existing bargaining units).
  --Subject to a few well-defined and narrow exceptions, once a union 
        has been selected as the collective bargaining representative, 
        the employer cannot make changes in terms and conditions of 
        employment until it concludes an agreement or bargains to 
        overall--not ``issue by issue''--impasse.
  --Having achieved the status of the employees' collective bargaining 
        representative, unions have significant incentive to deliver on 
        promises made during the campaign.
  --Some unions voluntarily self-impose an economic incentive to reach 
        prompt agreement by foregoing dues from newly-represented 
        employees until a contract is reached.
  --The employer may want to reach agreement in order to preserve 
        employee morale and avoid a strike and its attendant economic 
        consequences.
  --The union will prefer to obtain a contract during the first year 
        after its certification, during which it enjoys an irrebuttable 
        presumption of majority support. If a contract is not reached, 
        employees may become disgruntled and file a decertification 
        petition after the certification year ends.
  --Employers, recognizing all this, may be encouraged to bargain in 
        good faith because a decertification petition can be blocked by 
        charges that the employer failed to meet and bargain in good 
        faith or that unlawful unilateral changes were made to terms 
        and conditions of employment.
    In short, the act and precedent arising thereunder provide a 
comprehensive scheme of rules, principles, and remedies to regulate, 
safeguard, and facilitate collective bargaining. Ultimately, however, 
the Act does not compel agreement, and whether and what terms are 
actually reached is primarily a function of the incentives just 
outlined and the parties' respective economic leverage.
    It is true, as FMCS and other data indicate, that first contract 
negotiations tend to be more protracted and contentious than successor 
negotiations. However, there are many reasons for that, most of which 
have nothing to do with the Board's election processes. A union new to 
a bargaining relationship obviously needs time to seek information and 
to understand the nature of the employer's business operations and the 
issues important to its members. The parties need to engage in the 
time-consuming process of developing detailed proposals on the many and 
various terms and conditions of employment that will form the framework 
for successor agreements. Parties also generally will be testing the 
flexibility, economic leverage, and pain thresholds of their bargaining 
partners for the first time. Unions may have made unrealistic promises 
during the course of the campaign to secure employee support, making 
agreement difficult or impossible. In short, initial contract 
negotiations frequently do require more time than successor 
negotiations, but that fact is hardly surprising, and does not, in my 
view, necessarily demonstrate any statutory deficiency or failure on 
the part of the Board.
    It is also interesting to note that while a not insignificant 
percentage of the refusal-to-bargain unfair labor practice charges 
filed with the Board involve conduct occurring in first-contract 
negotiations (43.63 percent in 2005, 24.29 percent in 2006, and 25.68 
percent in 2007), such cases still represent a relatively small 
percentage of the RC certifications in which meritorious charges are 
found (between 12.83 percent and 19.79 percent between fiscal year 2002 
through fiscal year 2007).

AGENCY INITIATIVES TO EXPEDITE ELECTIONS AND FACILITATE FIRST CONTRACT 
                              NEGOTIATIONS

    As noted earlier, for many years the agency has given 
representation-election cases a high priority. Our rules and 
regulations in such cases are specifically designed to facilitate rapid 
processing of election petitions and the certification of election 
results. Various general counsels, under Republican and Democratic 
administrations alike, have refined those procedures and instituted and 
enforced tight deadlines for virtually every stage of the election 
process. On the Board side, the Agency established a specialized unit--
the ``R-Unit''--solely devoted to resolution of representation-case 
issues, and we have implemented practices and procedures to ensure that 
such cases are resolved expeditiously. For example, whereas the Board 
typically processes most unfair labor practice cases through a 
``subpanel'' system in which members of the Board participate through 
their staff representatives, the Board considers and decides 
representation cases under what we call the Superpanel system. Under 
that system, R-Unit cases are expeditiously briefed and presented to a 
panel of the members themselves for discussion and decision there and 
then. For the most part, that system results in immediate decisions, 
which are communicated promptly to the Regional Offices and parties. 
During my tenure at the Board, I can state unequivocally that each of 
the Board Members with whom I have served has demonstrated an absolute 
commitment to rapidly processing our representation cases. Indeed, the 
agency's overall success in rapidly processing R cases has been 
outstanding, as discussed more fully above.
    In addition to the existing structural and procedural steps taken 
to expedite the election process, the Agency has recently undertaken 
several new initiatives to respond to contentions, however questionable 
as a matter of fact, that the Board's election machinery moves too 
slowly.
    The first initiative is the Board's website and expanded outreach 
efforts. Some commentators have complained that employees are often 
unaware of their rights under the NLRA or how to go about seeking 
representation. The Board's website, which has received accolades for 
its breadth of information and easy accessibility, provides easy-to-
understand and comprehensive guidance to employees about the rights 
protected by our statute and the process of seeking workplace 
representation. Assuming we have the budget resources to devote to it, 
we hope to continue to expand and develop our website and outreach 
efforts.
    The second recent initiative was the GPRA initiative instituted 
last year by my predecessor and colleague, Chairman Robert Battista. 
Under that initiative, the Board Members and Agency attorneys worked 
feverishly and, in my view, extremely collaboratively to reduce our 
inventory of older cases and to achieve our case processing objectives. 
Although we fell just short of meeting our unfair labor practice case 
GPRA goals, we did meet all of our representation case GPRA objectives. 
I am committed, notwithstanding the fact that we are now down to only 
two Members, to continuing many of the practices and approaches 
employed during last year's GPRA push.
    The third recent initiative is the expanded use of technology. The 
Agency is in the midst of revamping our case processing, document 
management, database and Internet technologies. We have instituted 
electronic filing in a number of areas, and are in the process of 
expanding that program. On the Board side, we have a new software 
system for managing our caseload and tracking decisions through to 
issuance. On an Agency-wide basis, we envision having in place a 
seamless system that will permit all cases, including representation 
cases, to move quickly through each stage of the process in a paperless 
environment. A year ago, we began building an enterprise case 
management system, which will take another 2-3 years to complete, 
depending upon our funding.
    An additional expansion of our use of technology in the 
representation case arena is the Video Testimony Pilot Program. Under 
this program, to speed up the processing of pre- and post-election 
hearings, the Agency is utilizing, in appropriate cases, video 
testimony, rather than incurring the expense and delay of bringing in 
witnesses from remote locations. We envision that programs of this type 
will make the Board's resources more accessible and will permit cases 
to be processed more efficiently.
    A fourth recent initiative is the proposed ``RJ'' petition, which 
has been published for notice and comment in the Federal Register. This 
petition would provide a mechanism allowing a union and employer to 
file a joint petition for an election within 28 days of the filing of 
the petition. The petition would include an agreed-upon election date, 
description of the bargaining unit, payroll period for eligibility, and 
Excelsior list (identifying the employees in the bargaining unit). 
There would be no requirement for a showing of interest, and any party 
seeking to intervene would have to do so within 14 days. Unlike the 
current system, in which blocking charges (alleging unfair labor 
practices) may delay the election, such charges would instead be 
resolved through post-election proceedings. Lastly, under the RJ 
petition, all election and post-election matters would be resolved with 
finality by the Regional Director. Although we recognize that the RJ 
petition in its current form raises a number of issues that will need 
to be resolved, if adopted in some form the RJ petition would address 
many of the frequently-raised complaints about the Board's existing 
election process.
    Two final recent initiatives, instituted by General Counsel 
Meisburg, are focused on (1) ensuring that employees have freedom of 
choice based on a timely opportunity to vote in Board-conducted 
elections in an uncoerced atmosphere, and (2) protecting the choice of 
employees who have elected union representation while first contract 
negotiations are ongoing. General Counsel Meisburg has issued two 
recent memoranda outlining a comprehensive program intended to protect 
new bargaining relationships and to foster accord on collective 
bargaining agreements. That program is described in detail in two 
General Counsel Memoranda, appended hereto as exhibits A and B. In 
brief, under this initiative, the General Counsel is closely monitoring 
and aggressively pursuing injunctive relief and special remedies in 
cases involving employer unfair labor practices during either union 
organizing campaigns or first contract negotiations. Among the special 
remedies the General Counsel is asking the Regions to consider are 
requiring bargaining on a prescribed or compressed schedule; requiring 
periodic reports on bargaining status; imposing a minimum six-month 
extension of the certification year; and reimbursement of bargaining 
costs.

                               CONCLUSION

    As I hope the foregoing demonstrates, the Board is successfully and 
efficiently carrying out its statutory mandate. We are continuing to 
find new and different, and frequently better, ways of investigating, 
processing, litigating, and deciding cases and conducting elections. 
The agency's accomplishments, gauged by almost any statistical measure, 
have been impressive, and are a testament to the dedication and 
diligence of our employees. We frequently hear that, regardless of the 
facts, what matters is the perception that the agency and the statute 
are hopelessly broken and inefficient. I respectfully disagree. If 
there is a misperception, then our focus should be on correcting that 
misperception through communication and outreach efforts, not 
compounding that misperception by denigrating the Board. In my own 
view, both the agency and the NLRA have proven to be remarkably 
flexible and adaptive over many years. The Board and the Act continue 
to effectively protect and to serve the American worker. Can both be 
improved? Undoubtedly. But the assertion that the Board and the NLRA 
are failing in their mission ignores, in my view, an undeniable record 
of success and accomplishment that spans the decades since the 
statute's enactment.
    This concludes my statement. I would be pleased to answer your 
questions.
                                 ______
                                 
               Exhibit A.--Office of the General Counsel

                          MEMORANDUM GC 06-05
April 19, 2006
TO: All Regional Directors, Officers-in-Charge, and Resident Officers
FROM: Ronald Meisburg, General Counsel
SUBJECT: First Contract Bargaining Cases

    An important priority during my term as General Counsel will be to 
ensure (1) that employees have freedom of choice based on a timely 
opportunity to vote in Board-conducted elections in an uncoerced 
atmosphere and (2) that their decision in an election is protected by 
this Agency.
    Initial contract bargaining constitutes a critical stage of the 
negotiation process because it forms the foundation for the parties' 
future labor-management relationship. As the Federal Mediation and 
Conciliation Service has observed, ``[i]nitial contract negotiations 
are often more difficult than established successor contract 
negotiations, since they frequently follow contentious representation 
election campaigns.'' \1\ And when employees are bargaining for their 
first collective bargaining agreement, they are highly susceptible to 
unfair labor practices intended to undermine support for their 
bargaining representative.\2\ Indeed our records indicate that in the 
initial period after election and certification, charges alleging that 
employers have refused to bargain are meritorious in more than a 
quarter of all newly-certified units (28 percent). Moreover, of all 
charges alleging employer refusals to bargain, almost half occur in 
initial contract bargaining situations (49.65 percent). In addition, 
half of the section 10(j) cases involving categories 5 and 8, which 
deal with unfair labor practices that undermine incumbent unions, 
involve parties bargaining for first contracts.
---------------------------------------------------------------------------
    \1\ 57 FMCS Ann. Rep. 18 (2004).
    \2\ Arlook v. S. Lichtenberg & Co., 952 F.2d 367, 373 (11th Cir. 
1992). Accord: Ahearn v. Jackson Hospital Corp., 351 F.3d 226, 239 (61h 
Cir. 2003).
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    In order to protect these new bargaining relationships, and 
therefore protect employee free choice, I am asking the Regional 
Offices to focus particular attention on remedies for violations that 
occur during the period after certification when parties are or should 
be bargaining for an initial collective bargaining agreement. As a 
major part of this remedial initiative, I want Regional Offices to 
consider two types of potential relief in cases involving initial 
contract bargaining violations: (1) Section 10(j) relief and (2) 
special remedies as part of the Board's order. I understand that these 
types of cases are sometimes not easy to prove, but I am committed to 
making the principle of employee free choice meaningful, and I ask for 
your input and support.
    Concerning section 10(j) relief, courts have long recognized the 
need for interim relief to protect the representational choice of 
employees. The agency frequently has obtained temporary injunctions in 
cases involving violations of section 8(a)(1), (3), and (5) during the 
period after certification. For example, in 2005, Region 29 
successfully litigated a 10(j) case where, during negotiations for a 
first contract, the employer engaged in surface bargaining, discharged 
the union steward, and made promises of wage increases and promotions 
that were conditioned on employees voting to decertify the union. In 
another initial contract bargaining case in 2004, Region 20 won an 
injunction against an employer who engaged in surface bargaining, 
refused to provide requested information to the union, threatened 
employees with job loss, and discharged two open union supporters. 
Thus, the section 10(j) program historically is well positioned to 
promote effective initial contract bargaining.
    Special remedies can also be appropriate for unfair labor practices 
committed during initial contract bargaining. Regional Offices should 
routinely consider the possibility for special remedies for such cases, 
including seeking a new full certification year, notice reading and 
publication, union access to bulletin boards, and other means of 
communication. Other remedies could include periodic reports on the 
status of bargaining, and bargaining and/or litigation expenses.
    The prelude to these first bargaining cases is the election, and we 
must do all in our power to assure that employees are able to vote 
promptly in elections in an atmosphere free from all unlawful 
interference and coercion. If interested parties must wait for a Board 
order to remedy violations committed during an organizing drive in 
order to have a fair election, the union's and the employer's right to 
conduct their respective campaigns will likely have been severely 
eroded, and the employees' right to make a fully informed choice on 
representation will likely have been undermined. Therefore, section 
10(j) relief should be considered in organizing campaign cases, 
especially where the union has filed an RC petition that is blocked by 
meritorious unfair labor practice charges. An interim injunction may 
restore the laboratory conditions needed to proceed to a timely 
election, pave the way to such an election, and even obviate the need 
for a Gissel bargaining order. In deciding whether 10(j) relief is 
appropriate in this type of case, Regional Offices should determine 
whether the organizing union is prepared to file a request to proceed 
to an election if the Board obtains appropriate 10(j) relief.
    Finally, in order to assure consistent analysis and use of 
appropriate remedies in union organizing and initial contract 
bargaining cases, Regional Offices should submit the following cases 
for advice, with a copy to Operations-Management, for a 6-month period 
ending on October 20, 2006:
    1. All cases where Regional Directors have found merit to section 
8(a)(1), (3), or (5) or 8(b)(1)(A) or 8(b)(3) allegations after a union 
has been certified as the bargaining representative of a unit and the 
union has requested bargaining for an initial collective bargaining 
agreement.\3\ The Regional Office should submit a memorandum that 
combines its analyses and recommendations concerning (1) what special 
remedies, if any, may be appropriate and (2) whether or not Section 
10(j) relief is appropriate.
---------------------------------------------------------------------------
    \3\ ``Test of certification'' section 8(a)(5) cases should not be 
submitted. Rather, consistent with our Agency goals, they are to be 
processed as quickly as possible by means of summary proceedings. See 
OM 04-25, ``Test of Certification Bargaining Order Summary Judgment 
Cases,'' February 12, 2004.
---------------------------------------------------------------------------
    2. All meritorious cases where a union is actively engaging in an 
organizational campaign and the unfair labor practice activity has 
undermined employees' right to make a free and informed choice. These 
cases should be submitted for Section 10(j) consideration, with the 
Region's recommendation as to whether or not interim relief is 
appropriate.
    If the Regional Office is recommending that section 10(j) relief be 
authorized, it should submit the standard memorandum consistent with 
past practice. If the Regional Office is recommending against the 
authorization of section 10(j) relief, it should submit a short 
memorandum explaining the basis for its recommendation and attaching 
the decisional documents (field investigative report, agenda outline, 
agenda minute) and the complaint. In first contract bargaining cases, 
these memoranda also should include a recommendation and analysis 
regarding the need for special remedies.\4\
---------------------------------------------------------------------------
    \4\ A Region need not submit merit cases in which the parties agree 
to a bilateral settlement before complaint issues.
---------------------------------------------------------------------------
    If you have any questions concerning this initiative, please 
contact the Division of Advice. I greatly appreciate your efforts to 
accomplish the goals identified in this memorandum.

                                                               R.M.
                                 ______
                                 
               Exhibit B.--Office of the General Counsel

                          MEMORANDUM GC 07-08
May 29, 2007
TO: All Regional Directors, Officers-in-Charge, and Resident Officers
FROM: Ronald Meisburg, General Counsel
SUBJECT: Additional Remedies in First Contract Bargaining Cases

    In GC Memorandum 06-05, I set forth a remedial initiative dealing 
with first contract bargaining cases intended to ensure that employees 
have freedom of choice on the issue of union representation, free of 
coercion by any party, and that their decision is protected by this 
Agency. As noted there, initial contract bargaining constitutes a 
critical stage of the negotiation process in that it provides the 
foundation for the parties' future labor-management relationship. 
Unfair labor practices by employers and unions during this critical 
stage may have long-lasting, deleterious effects on the parties' 
collective bargaining and frustrate employees' freely-exercised choice 
to unionize. For these reasons, GC Memorandum 06-05 instructed Regions 
to consider section 10(j) relief and special remedies in first contract 
bargaining cases, and to submit to the Division of Advice all cases 
where Regional Directors found merit to post-certification section 
8(a)(1), (3), or (5), or 8(b)(1)(A) or 8(b)(3) allegations.
    Our experience with these cases under GC Memorandum 06-05 has led 
me to conclude that additional remedial measures should be undertaken 
to adequately protect employee free choice in initial bargaining cases. 
This memorandum sets forth additional remedies that should regularly be 
considered in cases where unfair labor practices occur during first 
contract bargaining. By this memorandum, I am also extending for 
another 6 months the directive to submit all cases that involve 
violations during organizing campaigns or first contract bargaining to 
the Injunction Litigation Branch of the Division of Advice with a 
Regional recommendation on whether section 10(j) relief is appropriate.

  I. THE NEED FOR ADDITIONAL REMEDIES IN INITIAL CONTRACT BARGAINING 
                                 CASES

    Where there are bad faith bargaining tactics or other violations in 
the initial bargaining process that substantially delay or otherwise 
hinder negotiations, merely ordering the parties to bargain may not 
return the parties to the status quo ante. I believe that additional 
measures are often necessary in these situations to truly restore the 
conditions and the parties' relationships to what would have existed 
absent the violations. With this object in mind, I instructed Regions 
in GC Memorandum 06-05 to consider special remedies in initial 
bargaining cases, such as seeking extension of the certification year, 
notice reading and publication, union access to bulletin boards, 
periodic reports on the status of bargaining, and bargaining/litigation 
expenses. Based on our experience under this remedial initiative, I 
have concluded that certain remedies specifically tailored to restore 
the pre-unfair labor practice status quo, make whole the affected 
parties, and promote good-faith bargaining should regularly be sought 
in initial bargaining cases where violations have interfered with 
contract negotiations.
    The Board has in the past imposed remedies which, if uniformly 
applied, could assist in returning the parties to the pre-unfair labor 
practice status quo. The Board considers these remedies to be 
extraordinary relief, and has traditionally focused in its analysis on 
the egregiousness of the respondent's conduct, rather than the impact 
of the violations on employees' section 7 rights and the collective-
bargaining relationship. I believe that, in first contract bargaining 
cases, the primary focus should be on the need to restore the status 
quo and on tailoring make-whole remedies to restore the process of 
collective bargaining at this critical stage. Therefore, although the 
Board has so far applied additional remedies only occasionally, and 
then based on the egregiousness of the violations, we should seek them, 
and argue their necessity, based on the impact of the violations on the 
new collective-bargaining relationship.
    In identifying which first contract bargaining cases may warrant 
additional remedies, Regions should focus on the effect of the unfair 
labor practices, whether committed by employers or by unions, on the 
bargaining process and the parties' relative bargaining strengths. 
Regions should consider whether first-contract bargaining violations 
are likely to irrevocably stymie the bargaining process by unduly 
delaying negotiations, unlawfully increasing the bargaining expenses of 
the other party, undermining the union's support, or otherwise causing 
a decline in a party's bargaining strength. High impact violations 
during first contract bargaining may include:
  --Outright refusals to bargain or overall bad-faith bargaining that 
        may be tantamount to a repudiation of the bargaining 
        relationship.
  --Refusals to meet at reasonable times, the use of bargaining agents 
        without adequate bargaining authority, refusals to provide 
        information that is critical for negotiations to proceed, or 
        other tactics that prolong bargaining. By causing undue delay 
        in negotiations, these violations unlawfully increase the other 
        party's bargaining expenses and eventually erode their 
        bargaining strength.
  --Unilateral changes that inject extraneous issues into the 
        negotiations. These unlawfully created issues distract from the 
        legitimate issues dividing the parties at bargaining, making it 
        more difficult for the parties to achieve a contract. 
        Unilateral changes may also force unions to bargain from a 
        position of disadvantage, render the unions powerless in the 
        eyes of unit employees, and tend to erode employee support for 
        the union at a time when the union has not had adequate 
        opportunity to establish a strong relationship with the 
        represented employees.
  --Unlawful discharges of union supporters. Discharges may also 
        significantly hamper negotiations by removing key supporters 
        from the workplace where they serve as a source of information 
        and communication between the unit and the Union. Discharges 
        that involve employee-negotiators may impact bargaining not 
        only by removing key individuals from the bargaining unit, but 
        also by discouraging other employees from stepping into the 
        discriminatees' bargaining role.
    The probable result of these high-impact violations is a seriously 
damaged collective-bargaining relationship that is less likely to 
achieve the good-faith bargaining necessary to reach a first contract.

                  II. APPROPRIATE ADDITIONAL REMEDIES

    The serious harm to the collective-bargaining process that may 
result from violations such as those committed during initial contract 
bargaining warrant remedies beyond the standard bargaining order. I 
believe that the remedies discussed below can directly and effectively 
address the consequences of bad-faith bargaining and other violations 
during first contract negotiations so as to more adequately restore the 
pre-violation conditions and relative positions of the parties. 
Accordingly, they should be considered by Regions in all appropriate 
cases:
1. Requiring Bargaining on a Prescribed or Compressed Schedule
    Specific bargaining schedules have been used against recidivist 
employers, particularly in contempt proceedings, to bring them into 
compliance with their bargaining obligations. In this context, the 
Board, with judicial approval, has alternatively demanded that the 
parties meet at reasonable consecutive intervals,\1\ for a minimum 
number of days per week,\2\ or for a minimum number of hours per 
week,\3\ until an agreement or good-faith impasse is reached. These 
specific-schedule bargaining orders go further than traditional 
bargaining orders to minimize the potential for further delay, and help 
to secure a meaningful opportunity for bargaining.
---------------------------------------------------------------------------
    \1\ See, e.g., NLRB v. Johnson Mfg. Co. of Lubbock, 511 F.2d 153, 
156 (5th Cir. 1975); NLRB v. Metlox Mfg, Co., 1973 WL 3146 (9th Cir. 
Apr. 18, 1973).
    \2\ See, e.g., Straight Creek Mining. Inc. v. NLRB, 2001 WL 1262218 
(6th Cir. May 11, 2001) (ordering bargaining at least one day per 
week); NLRB v. H&H Pretzel Co., 1991 WL 111249 (6th Cir. June 25, 1991) 
(three days per week).
    \3\ See, e.g., NLRB v. Schill Steel Prods., 480 F.2d 586, 598 (5th 
Cir. 1973) (15 hours, unless the union agreed to less).
---------------------------------------------------------------------------
    These scheduled bargaining orders have not been generally sought in 
unfair labor practice complaints. Where they have been sought, 
administrative law judges or the Board have rejected them without 
substantive discussion.\4\ Nevertheless, I believe that these scheduled 
bargaining orders directly address the problem of improving the 
diminished chances of a bargaining unit attaining a first contract 
where there has been unlawful delay and bad-faith tactics. A specific 
bargaining schedule provides an effective and unburdensome means of 
improving employees' chances of achieving a first contract. While the 
exact nature of the bargaining schedule requested may vary depending on 
the particular circumstances of the case and will be determined in 
consultation with the Division of Advice, in recommending specific 
bargaining schedules in first contract bargaining cases Regions \5\ 
should consider the types of bargaining schedules granted in contempt 
situations.
---------------------------------------------------------------------------
    \4\ See, e.g., People Care, Inc., 327 NLRB 814, 827 (1999); 
Professional Eve Care, 289 NLRB 1376, 1376 fn. 3 (1988).
    \5\ See cases cited above, fns. 1-3.
---------------------------------------------------------------------------
2. Periodic Reports on Bargaining Status
    In GC Memorandum 06-05, I discussed remedies requiring the 
respondent to provide to the Board periodic reports on the status of 
bargaining. While I believe that requiring bargaining according to a 
prescribed schedule will help to remedy the consequences of bargaining 
delays in initial contract bargaining, as discussed above, the 
additional requirement of periodic reports on bargaining status may be 
appropriate in cases where there is a reasonable concern that the 
respondent will repeat its unlawful conduct. It may be an appropriate 
remedy, for example, where the respondent has previously violated a 
Board order or settlement agreement.
3. A Minimum Six-Month Extension of the Certification Year
    It has long been Board policy to ensure that newly-certified unions 
have the opportunity to focus solely on bargaining for at least one 
full year.\6\ To that end, the Board will not allow a union's majority 
status to be challenged within one year of certification in order to 
provide the union with ``a reasonable period in which it can be given a 
fair chance to succeed.'' \7\ Consequently, where an employer's unfair 
labor practices delay good-faith bargaining during that period, the 
Board retains the discretion to extend the certification year.\8\ 
Although the Board sometimes exercises its discretion to extend the 
certification year for a full 12 months, even where there may have been 
some period of good faith bargaining,\9\ Ait frequently rejects such an 
extension.\10\ Rather, the Board considers the context of any 
particular refusal to bargain in deciding whether to grant a 
certification year extension, and if so, for how long, particularly 
taking into account ``the nature of the violations; the number, extent, 
and dates of the collective bargaining sessions; the impact of the 
unfair labor practices on the bargaining process; and the conduct of 
the union during negotiations.'' \11\
---------------------------------------------------------------------------
    \6\ Brooks v. NLRB, 348 U.S. 96, 101-03 (1954); Kimberly Clark 
Corp., 61 NLRB 90, 92 (1945).
    \7\ Centr-O-Cast, 100 NLRB 1507, 1508 (1952) (quoting Franks Bros. 
Co. v. NLRB, 321 U.S. 702, 705 (1944)).
    \8\ Mar-Jac Poultry Co., 136 NLRB 785, 786-87 (1962).
    \9\ Northwest Graphics, Inc., 342 NLRB 1288, 1289-90 (2004), enfd. 
mem. 156 Fed.Appx. 331 (D.C. Cir. 2005) (citing Glomac Plastics, 234 
NLRB 1309 fn. 4 (1978), enfd. in rel. part 592 F.2d 94, 101 (2d Cir. 
1979)).
    \10\ See, e.g., St. George's Warehouse, 341 NLRB 904 (2004) 
(extension of certification year not warranted where employer committed 
section 8(a)(5) violations but did not engage in surface bargaining); 
Mercy, Inc., 346 NLRB No. 88, slip op. at 3-4 (2006) (granting only a 3 
month extension where the record contained no explanation as to why the 
union did not seek bargaining during the first 10 months of the 
certification year); United Electrical Contractors Assn., 347 NLRB No. 
1 (2006) (certification year extended only for a ``reasonable period'' 
after employer failed to provide relevant information).
    \11\ Mercy, Inc., 346 NLRB No. 88, slip op. at 3 (citing Northwest 
Graphics, 342 NLRB at 1289; Wells Fargo Armored Services Corp., 322 
NLRB 616, 617 (1996). Current Board members have emphasized that ``the 
length of such an extension is not necessarily a simple arithmetic 
calculation.'' Northwest Graphics, Inc., 342 NLRB 1289. See also id. at 
1291 (Chairman Battista, in dissent, stating that an extension's length 
``is not necessarily to be decided by arithmetic reasoning'')
---------------------------------------------------------------------------
    The Board has recognized, however, that when unlawful bargaining 
has isrupted the bargaining relationship, parties need a reasonable 
period of time to resume their relationship.\12\ Accordingly, it has 
often granted 6-month extensions to remedy unlawful bargaining even 
where there has been lawful bargaining for more than 6 months during 
the certification year. In keeping with this approach, Regions should 
routinely seek minimum certification year extensions of 6 months in 
cases where unlawful bargaining in first contract negotiations 
disrupted the relationship, even where this may require overall 
bargaining for more than 12 months. I believe 6 months is the minimum 
time necessary to reestablish a solid initial bargaining relationship 
that has been undermined by the effects of the illegal bargaining 
tactics. At the same time, extending the period by 6 months, as opposed 
to a full year, would adequately accommodate employees' right to seek 
to decertify a union they no longer want to represent them. 
Certification year extensions of 6 months generally should be 
particularly valuable, especially when combined with prescribed 
bargaining schedules that may require more bargaining in a shorter 
timeframe.
---------------------------------------------------------------------------
    \12\ See, e.g., Colfor, Inc., 282 NLRB 1173, 1175 (1987), enfd. 838 
F.2d 164 (6th Cir. 1988) (``It is unreasonable to conclude that these 
parties could resume negotiations at the point where they left off over 
2 years ago, or that fruitful negotiations could take place during a 
mere 2 months of bargaining after such a hiatus.''); see also Beverly 
Health and Rehabilitation Services, 325 NLRB 897, 902-03 (1998), enfd. 
187 F.3d 769 (8th Cir. 1999) (granting 6 month extension despite 9 
months of good faith bargaining during the certification year); 
Dominguez Valley Hospital, 287 NLRB 149, 151 (1987), enfd. 907 F.2d 905 
(9th Cir. 1990) (same).
---------------------------------------------------------------------------
    Of course, in cases where there has been no meaningful bargaining 
post-certification, or where the unfair labor practices have eliminated 
any progress made during any period of good-faith bargaining, we will 
continue to seek 12-month certification year extensions to return the 
parties to the status quo ante.
4. Reimbursement of Bargaining Costs
    The Board has ordered respondents in bad-faith bargaining cases to 
reimburse the other party for bargaining costs in order to restore the 
status quo ante. However, the Board has limited this remedy to cases of 
``unusually aggravated mis-
conduct . . . where it may fairly be said that a respondent's 
substantial unfair labor practices have infected the core of a 
bargaining process to such an extent that their effects cannot be 
eliminated by the application of traditional remedies.'' \13\ The Board 
has applied this standard to both employers \14\ and unions \15\ that 
engaged in bad-faith bargaining, where there was deliberate misconduct 
that was ``calculated to thwart the entire collective-bargainirig 
process and forestall the possibility of the Respondent ever reaching 
agreement.'' \16\ Reimbursed costs have included employee negotiating 
committee members' lost wages and union agents' salaries, as well as 
mileage, meals, and lodginp expenses incurred by the bargaining 
representatives in getting to the bargaining table.\17\
---------------------------------------------------------------------------
    \13\ Dish Network Service Corp., 347 NLRB No. 69, slip op. at 53 
(2006) (quoting Unbelievable, Inc., 318 NLRB 857, 859 (1995), 
enforcement denied in part 118 F.3d 795 (D.C. Cir. 1997)).
    \14\ Regency Service Carts, Inc., 345 NLRB No. 44, slip op. at 8-9 
(2005).
    \15\ Teamsters Local Union No. 122, 334 NLRB 1190, 1194-95 (2001), 
enfd. mem. 2003 WL 880990 (D.C. Cir. Feb. 14, 2003).
    \16\ Unbelievable, Inc., 318 NLRB at 858.
    \17\ See, e.g., NLRB v. Newton-New Haven Co., 1979 WL 4857 (2d Cir. 
June 18, 1979); NLRB v. Mr. F's Beef and Bourbon, 1977 WL 4297 (6th 
Cir. Aug. 29, 1977); NLRB v. Johnson Mfg. Co., 511 F.2d 153, 157 & fn. 
4 (5th Cir. 1975).
---------------------------------------------------------------------------
    Under this rationale, reimbursement of bargaining costs is 
particularly appropriate where violations that amount to a complete 
repudiation of the employee-chosen bargaining relationship occur at a 
time when that relationship has not had an opportunity to establish 
itself and employees' relationship with their chosen union is in a 
nascent stage.\18\ Due to the especially vulnerable status of a new 
collective-bargaining relationship, such unfair labor practices 
necessarily ``infect the core of the bargaining process'' to such an 
extent that their effects cannot be remedied by a mere bargaining 
order.
---------------------------------------------------------------------------
    \18\ It is well established that newly certified unions are very 
vulnerable to employer misconduct. See generally Arlook v. S. 
Lichtenberg & Co., 952 F.2d 367, 373 (11th Cir. 1992), and Ahearn v. 
Jackson Hospital Corp., 351 F.3d 226, 239 (6th Cir. 2003). A bargaining 
order alone will not overcome the harm to the union, and its ability to 
reach a first contract, which result from employer failures to bargain 
in the critical post-election period.
---------------------------------------------------------------------------
    However, as mentioned above, I believe that the appropriate focus 
should be not on the egregiousness of the violations, but on the effect 
they have on the bargaining relationship and need for true make-whole 
relief. Thus, the critical factor in cases involving violations during 
first contract bargaining is that the violations cause the other party 
to waste resources in futile bargaining or efforts to enforce the 
bargaining obligation at a time when the new bargaining relationship is 
most vulnerable. These unlawfully-imposed costs may have long-lasting 
effect on the affected party's economic strength.
    Although the Board has stated that it ``do[es] not intend to 
disturb the Board's long-established practice of relying on bargaining 
orders to remedy the vast majority of bad-faith bargaining 
violations[,]'' \19\ Aa bargaining order alone may be insufficient to 
restore the status quo ante where cumulative illegal tactics 
significantly stall a newly-formed bargaining relationship.\20\  
bargaining order alone will not make up for the unlawful costs on the 
affected party, who is forced to expend time and resources arranging, 
planning for, and participating in fruitless meetings. In such 
circumstances, reimbursement of bargaining costs is necessary to 
restore the parties to their lawful pre-violation position and fully 
counter the effects of the violations on employees' ability to reach an 
agreement. Where the investigation discloses bad-faith bargaining from 
the outset, we will seek negotiation costs for the full period of 
negotiations, rather than confining the requested order to the 6 month 
10(b) period.\21\
---------------------------------------------------------------------------
    \19\ Regency Service Carts, 345 NLRB No. 44, slip op. at 9 (citing 
Unbelievable, Inc., 318 NLRB at 859).
    \20\ In contrast, where parties have been able to continue 
negotiations, despite an employer's unlawful unilateral changes, the 
Board has found that reimbursement of negotiating costs was not 
appropriate. Visiting Nurse Services of Western Mass., 325 NLRB 1125, 
1133 (1998), enfd. 177 F.3d 52 (1st Cir. 1999).
    \21\ The Board recently has indicated that this could well be 
appropriate in cases where ``it may not be readily apparent until long 
after the negotiations have begun that bargaining has been in bad faith 
from the inception.'' Recency Service Carts, 345 NLRB No. 44, fn. 14.
---------------------------------------------------------------------------
           III. SUBMISSION OF CASES TO THE DIVISION OF ADVICE

    In order to assure consistent analysis and application of these 
additional remedies in initial contract bargaining cases, Regional 
Offices should submit to the Division of Advice all cases involving 
unfair labor practices during bargaining for, or attempts to bargain 
for, an initial contract. Because our prior experience has shown that 
section 10(j) injunctive relief is often the most effective means of 
preventing potentially irreparable harm to bargaining relationships and 
restoring the lawful status quo ante, am also directing the Regions to 
include in their submission their recommendation regarding section 
10(j) relief. Finally, our review of cases submitted for section 10(j) 
consideration under our prior memorandum has led us to conclude that 
cases involving breaches of first contract settlement agreements are 
particularly appropriate subjects for Section 10(j) relief.
    In short, for a period of 6 months after the date of this 
Memorandum, Regions should submit to the Division of Advice, with a 
copy to Operations-Management:
    1. All meritorious cases involving unfair labor practices during 
bargaining for, or attempts to bargain for, a first contract.\22\ 
Regional submissions to the Division of Advice should include a summary 
of the violations to be alleged, a discussion of the impact of the 
violations on the bargaining relationship, the Region's recommendation 
on which, if any, of the additional remedies discussed herein are 
appropriate and why, and the Region's recommendation on whether section 
10(j) relief is appropriate.
---------------------------------------------------------------------------
    \22\ A Region need not submit test of certification cases or other 
merit cases in which the parties agree to a bilateral settlement before 
complaint issues.
---------------------------------------------------------------------------
    As was the case with GC Memorandum 06-05, if the Region is 
recommending that section 10(j) relief be authorized, it should submit 
the standard ``go'' 10(j) recommendation memorandum. If the Region is 
recommending against both 10(j) and any of the remedies discussed here, 
it should submit a short memorandum explaining the basis for its 
recommendation and attach the decisional documents (field investigative 
report, agenda outline, agenda minute) and the complaint. 
Recommendations to seek the final remedies discussed here should be 
treated as standard Advice submissions, including the parties' 
positions, if any, on the recommended remedies.
    2. In continuation of GC Memorandum 06-05, all meritorious cases 
where a union is actively engaged in an organizing campaign and the 
unfair labor practice activity has undermined employees' right to make 
a free and informed choice should be submitted for Section 10(j) 
consideration, with the Region's recommendation on whether injunctive 
relief is appropriate.
    3. In crafting their recommendations regarding section 10(j) relief 
for cases in either of the above categories, Regions should be 
cognizant that cases where there has been a breach of a settlement 
agreement may be particularly appropriate vehicles for injunctive 
relief.

                                                               R.M.

    Senator Harkin. Now, I'll turn the testimony to Ms. Liebman 
and then, as I said, it will be made a part of the record and 
if you would summarize, we would appreciate it.

STATEMENT OF HON. WILMA B. LIEBMAN, MEMBER, NATIONAL 
            LABOR RELATIONS BOARD
    Ms. Liebman. Thank you. Good morning, Chairman Harkin, 
ranking member Specter.
    Thank you for inviting me to testify this morning about the 
National Labor Relations Board and its activities.
    As you know, members of the Board have a tradition of not 
discussing legislative proposals to amend the National Labor 
Relations Act. With your indulgence, I will abide by that 
tradition today.
    I have served on the Board for more than 10 years now, and 
I am certainly aware that our statute is old and getting older. 
One scholar has said that American labor law is ossified. It 
has not been revised in a major way for more than 60 years.
    In the meantime, our society and the global economy have 
been transformed. It is fair to ask whether labor law is still 
working. Does law actually make it possible for workers who 
want to be represented by a union and who want the benefits of 
collective bargaining to achieve those ends? As income and 
equality rises, some people think not.
    Nearly 25 years ago, a leading labor law scholar lamented 
that contemporary American labor law more and more resembles an 
elegant tombstone for a dying institution. Since then, the 
percentage of American workers who belong to unions has 
continued a steep and steady decline. The most recent 
membership figure for the private sector is 7.5 percent.
    Meanwhile, in the past decade, the Board has experienced a 
dramatic and unprecedented decline in case filing, affecting 
both unfair labor practice charges, down 31 percent between 
1997 and 2006, and representation petitions, down 41 percent 
during that same time period.
    In my view, this steep drop reflects a loss of confidence 
in the Board and its processes, and I say that with regret 
because I have the greatest respect for this agency and for its 
history.
    More and more unions are seeking to negotiate recognition 
in the workplace rather than use the Board's election 
machinery. The Board's procedures are seen as taking too long, 
leaving workers vulnerable to coercion by employers and 
generating campaign animosity that can taint a new bargaining 
relationship.
    It is hard to argue with this perception. Under current 
law, unions have limited access to workers on the job, while 
employers have great freedom to get their message across. 
Firing employees to nip union organizing in the bud is nothing 
unusual but remedies are weak.
    Of course, it is one thing for workers to win union 
representation and another thing for their new union to win a 
first contract from the employer. The difficulty of getting 
from an election victory to a collective bargaining agreement 
has long been recognized.
    For example, the Dunlop Commission on the Future of Worker-
Management Relations examined the problem in 1994. It pointed 
out that one-third or more of newly-certified unions failed to 
reach a first contract. Why? The Dunlop Commission pointed to 
lingering animosity from the election process and to unlawful 
bad faith bargaining by employers.
    New research on this subject is underway by scholars at the 
Sloan School of Management at MIT. It suggests that the first 
contract failure rate is going up and it, too, points to 
employer unfair labor practices as part of the problem.
    It's notable that the MIT scholars point to a series of 
obstacles facing workers who want to engage in collective 
bargaining. In their metaphor, workers must pass through the 
eye of a needle not once but several times to get from the 
filing of an NLRB representation petition to winning a first 
contract.
    As my written testimony details, the Board, at least in my 
dissenting view, is not doing everything it could to protect 
the collective bargaining process. In recent decisions, the 
Board has taken too narrow a view of what constitutes unlawful 
surface bargaining. It has been too willing to permit employers 
to withdraw recognition from unions when bargaining 
difficulties cause employees to lose faith, and it has been too 
stingy in granting full remedies when employers engage in 
bargaining misconduct after a union is certified.

                           PREPARED STATEMENT

    I understand why the subcommittee would be concerned about 
the issues to be addressed at today's hearing and I would be 
happy to answer your questions.
    Thank you.
    [The statement follows:]

                 Prepared Statement of Wilma B. Liebman

    Chairman Harkin, ranking member Specter, and members of the 
subcommittee: Thank you for inviting me to testify today about the 
National Labor Relations Board (NLRB) and its activities.
    I am pleased to appear before you today. I began my service on the 
Board more than ten years ago, in November 1997. 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 began my legal career as a staff 
attorney for the NLRB in 1974, and later served on the legal staffs of 
two labor unions, the International Brotherhood of Teamsters and the 
Bricklayers and Allied Craftsmen.
    As you may know, consistent with their duty to impartially apply 
the law as it is, members of the NLRB have a tradition of refraining 
from discussions of legislative proposals to amend the National Labor 
Relations Act. I respect that tradition and will abide by it.
    Nevertheless, I certainly know that the act is an aging statute, 
that it is under scrutiny, and that its interpretation by the Board has 
become controversial. Indeed, I recently have addressed the current 
state of labor law in Congressional testimony \1\ and in published 
articles.\2\ There, I observed that ``that National Labor Relations 
Act, by virtually all measures, is in decline. . . .'' \3\ I cited the 
Board's plummeting case intake, noting that ``labor unions have turned 
away from the Board, and especially from its representation 
procedures'' and pointing out that ``[t]his disenchantment has 
intensified in recent years as the Board, in case after case, has 
narrowed the statute's coverage, cut back on its protections, and 
adopted an increasingly formalistic approach to interpreting the law.'' 
\4\
---------------------------------------------------------------------------
    \1\ On December 13, 2007, I testified at a joint hearing of Senate 
and House subcommittees, called to examine recent decisions of the 
NLRB. See Statement of Wilma B. Liebman, Member, National Labor 
Relations Board, before the Subcommittee on Employment and Workplace 
Safety, Committee on Health Employment, Labor and Pensions, United 
States Senate, and the Subcommittee on Health, Employment, Labor and 
Pensions, Committee on Education and Labor, United States House of 
Representatives on ``The National Labor Relations Board: Recent 
Decisions and Their Impact on Workers' Rights'' (Dec. 13, 2007).
    \2\ See Wilma B. Liebman, Decline and Disenchantment: Reflections 
on the Aging of the National Labor Relations Board, 28 Berkeley J. 
Employment & Labor L. 569 (2007); Wilma B. Liebman, Labor Law Inside 
Out, 11 WorkingUSA: The Journal of Labor and Society 9 (2008).
    \3\ Liebman, Decline and Disenchantment, supra, at 572.
    \4\ Id. at 571 & nn. 13-15.
---------------------------------------------------------------------------
    Consistent with my previously-expressed views--but without 
recommending any particular statutory changes or commenting on pending 
legislation--I would welcome comprehensive re-examination of a law that 
has not been substantially revised for more than 60 years. As one 
scholar puts it, American labor law is ``ossified.'' \5\ Given the many 
changes in American society, and in the global economy, it seems 
desirable--whatever our policy preferences might be--to make sure that 
our labor law evolves and that the rights it protects do not become 
illusory.
---------------------------------------------------------------------------
    \5\ Cynthia Estlund, The Ossification of American Labor Law, 102 
Colum. L. Rev. 1527 (2002).
---------------------------------------------------------------------------
    I understand that the focus of today's hearing is on the Board's 
election procedures and initial collective-bargaining agreements, i.e., 
first contracts. The overriding aim of the National Labor Relations 
Act, a goal that was not renounced by the Taft-Hartley Act in 1947, is 
to equalize bargaining power between employers and employees by, in the 
words of section 1 of the statute, ``encouraging the practice and 
procedure of collective bargaining and . . . protecting the exercise by 
workers of full freedom of association . . . for the purpose of 
negotiating the terms and conditions of their employment.'' \6\ To that 
end, it is fair to ask whether the act is working: whether the law 
actually makes it possible for workers who want to be represented by a 
union, and who want the benefits of collective bargaining, to achieve 
those ends.
---------------------------------------------------------------------------
    \6\ 29 U.S.C. 151.
---------------------------------------------------------------------------
    As income inequality continues to rise,\7\ there are troubling 
signs that the act is not working. And these signs are not new. Nearly 
25 years ago, an eminent labor law scholar, Professor Paul Weiler of 
the Harvard Law School, lamented that ``[c]ontemporary American labor 
law more and more resembles an elegant tombstone for a dying 
institution.'' \8\ He pointed to the steady decline in the percentage 
of workers represented by unions, which he attributed, in large part, 
to the ``skyrocketing use of coercive and illegal tactics . . . by 
employers determined to prevent unionization of their employees.'' \9\ 
Professor Weiler argued that our labor-law system was at fault, for 
permitting such tactics to succeed.\10\ In 1983, when Professor 
Weiler's article appeared, only 16.5 percent of private-sector workers 
belonged to a union. In 2007, the figure was even smaller: a mere 7.5 
percent.\11\ There are surely many reasons for this trend, but it seems 
obvious that our labor-law system is one important factor.
---------------------------------------------------------------------------
    \7\ See, e.g., Greg Ip, The Gap Is Growing Again for U.S. Workers, 
Wall St. J., Jan. 23, 2004 (describing the declining power of unions as 
a factor in widening income disparities).
    \8\ Paul C. Weiler, Promises to Keep: Securing Workers' Rights to 
Self-Organization under the NLRA, 96 Harv. L. Rev. 1769, 1769 (1983).
    \9\ Id. at 1770.
    \10\ Id. at 1771.
    \11\ The cited figures are drawn from the Current Population Survey 
conducted by the Bureau of Labor Statistics and are available in 
historical chart form (``Union Membership, Coverage, Density, and 
Employment Among Private Sector Workers, 1973-2007'') at 
www.unionstats.com.
---------------------------------------------------------------------------
    Notably, in the past decade, the Board has experienced a dramatic, 
and unprecedented, decline in case filings. In my view, this steep drop 
reflects a loss of confidence in the Board and its processes. (I say 
that with regret, because I have the greatest respect for the Agency 
and its history.) Between fiscal years 1997 and 2006 the number of 
representation petitions filed dropped from 6,179 to 3,637, a 41 
percent decline. (From 2005 to 2006 alone, the representation case 
intake dropped by 26 percent.) \12\ More and more, unions are seeking 
to negotiate recognition in the workplace, rather than use the Board's 
election machinery.\13\ The Board's procedures are seen as taking too 
long, leaving workers vulnerable to coercion by employers, and 
generating campaign animosity that can taint a new bargaining 
relationship.\14\
---------------------------------------------------------------------------
    \12\ For the same period, unfair labor practice charges dropped 
from 33,439 to 23,091, a 31 percent decline. These statistics are drawn 
from the Board's annual reports. See Seventy-First Annual Report of the 
National Labor Relations Board for the fiscal year Ended September 30, 
2006 3 (Chart 1), available at www.nlrb.gov.
    \13\ See James J. Brudney, Neutrality Agreements and Card Check 
Recognition: Prospects for Changing Paradigms, 90 Iowa L. Rev. 819 
(2005).
    \14\ For a scholar's critical examination of representation 
procedures under the NLRA, see Craig Becker, Democracy in the 
Workplace: Union Representation Elections and Federal Labor Law, 77 
Minn. L. Rev. 495 (1993).
---------------------------------------------------------------------------
    It is difficult to quarrel with this perception. For example, union 
access to workers on the job is sharply limited under current law, 
which permits employers to exclude non-employees from their property 
under ordinary circumstances.\15\ Employers, meanwhile, have great 
freedom to campaign against unionization, using means such as captive-
audience meetings.\16\ Although workers are often economically 
dependent on their employers, and so very sensitive to what they hear 
from the boss, the law permits employers to vocally oppose union 
representation, so long as they do not make threats or promises to 
employees.\17\ Of course, what constitutes a threat is open to 
interpretation. In several recent decisions, for example, the Board 
(over a dissent) has permitted intimidating employer statements during 
organizing campaigns.\18\ Worse, discharges of employees that are 
designed to nip organizing drives in the bud are nothing unusual,\19\ 
while remedies for such unlawful firings are notoriously weak--and 
getting weaker.\20\ Remedies that fail to make workers whole, and that 
fail to deter unlawful employer conduct, undermine the law's 
effectiveness. Unions, in turn, face special problems as the result of 
two recent, divided-Board decisions: In the Harborside case, the Board 
reversed precedent and made it easier to set aside a union's election 
victory, based on pro-union supervisory conduct (such as collecting 
signatures on union-authorization cards), even where the employer's 
anti-union stance is clear.\21\ Because it is often difficult to 
determine whether a worker is, in fact, a statutory supervisor, 
Harborside creates a dilemma for unions in seeking supporters. That 
dilemma was compounded by the Board's Oakwood decision, which 
interpreted the statutory definition of a supervisor and expanded the 
universe of potential supervisors.\22\
---------------------------------------------------------------------------
    \15\ See Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992).
    \16\ Member Walsh and I cataloged some of the means available to 
employers in our dissent in Harborside Healthcare, Inc., 343 NLRB 906, 
917 & n. 14 (2004).
    \17\ See Section 8(c) of the National Labor Relations Act, 29 
U.S.C. 158(c).
    \18\ 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 North America, 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).
    \19\ See, e.g., California Gas Transport, Inc., 347 NLRB No. 188, 
slip op. at 8-9, 10-11 (2006) (discussing discharges and other 
violations designed to stop organizing drive), enfd. 507 F.3d 847, (5th 
Cir. 2007).
    \20\ See St. George Warehouse, 351 NLRB No. 42, slip op. at 11 
(2007 (dissent) (discussing limitations of backpay remedy and 
dissenting from decision reversing precedent and placing burden on 
General Counsel to produce evidence concerning discriminatee's job 
search, when employer demonstrates availability of jobs).
    \21\ Harborside Healthcare, supra, 343 NLRB at 909-912. Member 
Walsh and I dissented.
    \22\ Oakwood Healthcare, Inc., 348 NLRB No. 37 (2007).
---------------------------------------------------------------------------
    It is one thing for workers to win union representation; it is 
another for their new union to win a first contract from the employer. 
In 1994, the Dunlop Commission, a blue-ribbon Federal advisory 
committee reporting to the Secretary of Labor and the Secretary of 
Commerce, examined this issue. It found that one-third or more of 
newly-certified unions failed to reach a first contract, a sharp 
increase from the earliest available estimate in the late 1950's, when 
the figure was 14 percent.\23\ The Commission observed that ``roughly a 
third of employers engaged in bad faith `surface' bargaining with the 
newly-elected union representative,'' a factor that ``significantly 
reduces the odds that employees will secure an initial agreement from 
their employer.'' \24\ The Commission also pointed to the nature of 
union-representation elections, which it described as ``highly 
conflictual for workers, unions, and firms''--meaning that ``many new 
collective bargaining relationships start off in an environment that is 
highly adversarial.'' \25\
---------------------------------------------------------------------------
    \23\ Commission on the Future of Worker-Management Relations 
(Dunlop Commission), Fact Finding Report 73 (May 1994), available at 
http://digitalcommons.ilr.cornell.edu/key_/276/. See also Commission on 
the Future of Worker-Management Relations, Final Report 44 (December 
1994), available at http://digitalcommons.ilr.cornell.edu/key_/2/.
    \24\ Dunlop Commission, Fact Finding Report, supra, at 74.
    \25\ Dunlop Commission, Final Report, supra, at 38.
---------------------------------------------------------------------------
    Accordingly, the Dunlop Commission ``encourage[d] employers and 
unions who desire a cooperative relationship to agree to determine the 
employees' majority preference via a `card check.' '' \26\ Under long-
established law, an employer is free to recognize an employer 
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.\27\ The Board, however, has recently created a new 
obstacle to voluntary recognition. The Board's Dana decision now 
requires employers who voluntarily recognize a union to post a notice 
informing employees that it has done so and telling them how they can 
get rid of the union.\28\ That posting opens a 45-day window period 
during which employees--provided they marshal 30 percent support among 
their co-workers--may petition the Board for an election to decertify 
the union. Dissenting in Dana, Member Walsh and I pointed out that this 
new mechanism frustrates voluntarily-established bargaining 
relationships.\29\ During the window period, unions will be under great 
pressure to produce results for employees, yet employers will have 
little incentive to bargain seriously, if they cannot be sure the 
relationship will continue. It is now debatable, then, whether 
voluntary recognition is still a ``favored element of national labor 
policy.'' \30\
---------------------------------------------------------------------------
    \26\ Id. at 42.
    \27\ See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 596-597 
(1969) (discussing history of voluntary recognition under NLRA Section 
9(a), proving that representatives may be ``designated or selected'' by 
a majority of employees, without specifying means).
    \28\ Dana Corp., 351 NLRB No. 28 (2007). Such a notice-posting 
requirement is unprecedented. Employers, for example, are not generally 
required to post notices to employees informing them of their labor-law 
rights. Only if the employer commits an unfair labor practice is 
notice-posting required, as part of the Board's remedial order.
    \29\ Id., slip op. at 14.
    \30\ NLRB v. Lyon & Ryan Ford, Inc., 647 F.2d 745, 750 (7th Cir. 
1981).
---------------------------------------------------------------------------
    Meanwhile, new research on the difficulty of reaching a first 
contract is being conducted by John-Paul Ferguson and Thomas Kochan, 
scholars at the Sloan School of Management of the Massachusetts 
Institute of Technology. They point to the series of obstacles facing 
workers who want to engage in collective bargaining--in their metaphor, 
workers confront the difficulty of passing through not just one, but 
several, needles' eyes, beginning with the filing of an NLRB 
representation-election petition. Their preliminary study, based on 
data obtained from the NLRB and the FMCS, suggests that an election 
petition leads to a first contract in only 1 out of 5 cases.\31\ Forty-
four percent of newly-certified unions failed to win a first contract. 
Unfair labor practices significantly reduce the chances both of getting 
to an election and of securing a contract.
---------------------------------------------------------------------------
    \31\ See John-Paul Ferguson, The Eyes of the Needles: A Sequential 
Model of Union Organizing Drives, 1999-2004 (March 25, 2008) 
(unpublished working paper). See also Thomas A. Kochan, Updating 
American Labor Law: Taking Advantage of a Window of Opportunity, 28 
Comparative Labor Law & Policy Journal 101, 111-112 (2007) (discussing 
data).
---------------------------------------------------------------------------
    The Board's recent decision in Garden Ridge Management illustrates 
what can happen after a union's election victory.\32\ There, the union 
won and began bargaining for a first contract. The employer repeatedly 
refused the union's requests to meet more often. Just over a year after 
the union was certified, with no contract reached, employees presented 
the employer with a petition saying they no longer wanted to be 
represented by the union. The employer promptly withdrew recognition. A 
Board majority found that the employer should have met more often with 
the union, but otherwise found that the employer had bargained in good 
faith and that it was free to stop recognizing the union. I dissented, 
arguing that the Board should use extra care in monitoring first-
contract bargaining and that the evidence showed that the employer had 
never intended to bargain in good faith with the employer.\33\ On that 
score, I cited statements made by the employer's officials before the 
election, telling employees that even if the union won, the employer 
would simply tie it up at the bargaining table indefinitely and would 
never reach an agreement. Under the circumstances, it was predictable 
that the union would lose support. Indeed, it seems that some labor 
consultants advise employers to go through the motions of bargaining, 
with no intention of reaching a contract, precisely so the union will 
lose support, essentially undoing its election victory.\34\ Surface-
bargaining violations are hard to prove (as Garden Ridge illustrates) 
and hard to remedy effectively. An employer who has bargained in bad 
faith is simply ordered to cease-and-desist its unlawful conduct, to 
start bargaining in good faith, and to post a notice advising employees 
of what it has been ordered to do.\35\  For an employer bent on 
continuing its campaign to defeat the union at the bargaining table, 
the deterrent effect is negligible.
---------------------------------------------------------------------------
    \32\ Garden Ridge Management, Inc., 347 NLRB No. 13 (2006).
    \33\ Id., slip op. at 5.
    \34\ See Martin J. Levitt, Confessions of a Union Buster 204-225 
(1993). Describing his own experience as a consultant, Levitt writes: 
``The negotiation of a first contract is very delicate, so the process 
is highly controlled by labor law. Company executives who have just 
been forced to recognize a union--after spending tens of thousands of 
dollars to defeat it--rarely walk into their first bargaining session 
with open arms. . . . The purpose of the rules is to impede management 
from undermining negotiations. . . . As with most labor laws, however, 
the rules are largely ineffective. Worse, the hands of a union buster 
can quite easily twist those rules into a precision weapon against the 
union.'' Id. at 204.
    \35\ See, e.g., Dish Network Service Corp., 347 NLRB No. 69 (2006).
---------------------------------------------------------------------------
    The problem of achieving first contracts has not escaped the 
Government's attention. The Federal Mediation and Conciliation Service 
places special emphasis on first-contract negotiations, recognizing 
that such negotiations are ``critical because they are the foundation 
for the parties' future labor-management relationship'' and ``are often 
more difficult than established successor contract negotiations, since 
they frequently follow contentious representation election campaigns.'' 
\36\ (FMCS mediation is purely voluntary, of course.) I gained 
familiarity with this problem when I served at the FMCS.\37\
---------------------------------------------------------------------------
    \36\ Federal Mediation and Conciliation Service, Fifty-Seventh 
Annual Report 18 (2004), available at www.fcms.gov.
    \37\ See John Calhoun Wells & Wilma B. Liebman, New Models of 
Negotiation, Dispute Resolution, and Joint Problem Solving, 12 
Negotiation Journal 119, 124-125 (1996).
---------------------------------------------------------------------------
    The NLRB's current General Counsel has followed suit, launching a 
remedial initiative that focuses on unfair labor practices that occur 
after a union is certified and bargaining for a first contract is, or 
should be, under way.\38\He has cited NLRB data showing that unfair 
labor practice charges alleging employer refusal-to-bargain ``are 
meritorious in more than a quarter of all newly-certified units.'' \39\ 
And he has observed that unfair labor practices during this ``critical 
stage'' may have ``long-lasting deleterious effects on the parties' 
collective bargaining and frustrate employees' freely-exercised choice 
to unionize.'' \40\
---------------------------------------------------------------------------
    \38\ NLRB General Counsel Memorandum GC 06-05, First Contract 
Bargaining Cases (April 19, 2006), available at www.nlrb.gov (endorsing 
use of section 10(j) injunctions and special remedies). See also NLRB 
General Counsel Memorandum GC 07-08, Additional Remedies in First 
Contract Bargaining Cases (May 29, 2007), available at www.nlrb.gov 
(endorsing additional remedies, including requiring bargaining on a 
prescribed or compressed schedule, requiring periodic reports on 
bargaining status, minimum 6-month extensions of the certification year 
protecting unions' representative status, and reimbursement of 
bargaining costs).
    \39\ General Counsel Memorandum GC 06-05, supra, at 1.
    \40\ General Counsel Memorandum GC 07-08, supra, at 1.
---------------------------------------------------------------------------
    Whether the initiatives of the FMCS and the NLRB General Counsel 
will make a difference, within the existing statutory framework, is an 
open question.
    Unfortunately, the Board itself has not been as vigorous in 
protecting workers and unions from the effects of unfair labor 
practices committed during first-contract bargaining. Cases involving 
the remedy when employers fail to bargain in good faith with newly-
certified unions are one example. By way of background: The doctrine 
known as the ``certification-year bar'' is designed to give unions a 
fair chance to succeed before their status can be challenged: for 1 
year after a union is certified, an employer is required to recognize 
and bargain with the union, even if the union appears to have lost 
majority support among employees.\41\ Without such an insulated period, 
the Supreme Court has observed, a union would ``be under exigent 
pressure to produce hothouse results or be turned out.'' \42\ As a 
corollary to this rule, the Board may extend the certification year, by 
as much as another 12 months, if the employer does not bargain in good 
faith.\43\ As part of his current first-contract-bargaining remedial 
initiative, the General Counsel has emphasized the importance of 
seeking adequate certification-year extensions.\44\ But, as the General 
Counsel notes, a divided Board has recently rejected such extensions in 
some cases.\45\ I dissented in one of those cases (the only one in 
which I was on the panel), objecting to the majority's invocation of 
the statutory rights of employees who might oppose union 
representation. As I said there, ``[w]e should not be so quick to 
vindicate the employees' right to refrain from union representation 
when we have not first vindicated the employees' initial choice of 
union representation.'' \46\
---------------------------------------------------------------------------
    \41\ See Ray Brooks v. NLRB, 348 U.S. 96, 101-103 (1954).
    \42\ Id. at 100.
    \43\ See Mar-Jac Poultry Co., 136 NLRB 785 (1962).
    \44\ See General Counsel Memorandum GC 07-08, supra, at 4-5.
    \45\ Id. at 4 n. 10, citing United Electrical Contractors Assn., 
347 NLRB No.1 (2006) (rejecting extension of certification year, over 
dissenting view of Member Walsh); Mercy, Inc. d/b/a American Medical 
Response, 346 NLRB 1004 (2006) (rejecting full extension, over my 
dissent); St. George Warehouse, Inc., 341 NLRB 904 (2004) (rejecting 
extension, over dissent of Member Walsh).
    \46\ American Medical Response, supra, 346 NLRB at 1007.
---------------------------------------------------------------------------
    The Board's split July 2007 decision in Badlands Golf Course is 
another example.\47\ That case involved an employer who had unlawfully 
withdrawn recognition from a union, after expiration of the 
certification year, but before a first contract had ever been reached. 
The Board ordered the employer to bargain, which it did, for 6 months 
and 3 weeks, before withdrawing recognition again. The issue posed was 
whether this withdrawal was lawful, under the Board's rule in Lee 
Lumber, a 2001 decision, which established a 6-month minimum insulated 
period, and 1-year maximum insulated period, for such remedial 
bargaining.\48\ The Lee Lumber Board had emphasized that one important 
factor in determining the required period for remedial bargaining was 
whether the parties were negotiating a first contract.\49\ ``It is not 
unusual,'' the Board observed, for first-contract bargaining ``to take 
place in an atmosphere of hard feelings left over from an acrimonious 
organizing campaign.'' \50\ Although Badlands Golf Course involved 
first-contract bargaining, a single remaining contract issue, and the 
absence of a bargaining impasse, a Board majority permitted the 
employer to withdraw recognition from the union, finding that it had 
bargained for a reasonable period of time. The majority relied not only 
on bargaining conducted in compliance with the Board's initial order, 
but--remarkably--on the bargaining that culminated in the employer's 
first, and unlawful, withdrawal of recognition. Member Walsh and I 
dissented, arguing that the majority had erred in several respects, 
including by ``grossly miminiz[ing] the fact that the parties were 
bargaining for an initial contract.'' \51\
---------------------------------------------------------------------------
    \47\ Badlands Golf Course, 350 NLRB No. 28 (2007).
    \48\ Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), 
enfd. 310 F.3d 209 (D.C. Cir. 2002).
    \49\ Id. at 403.
    \50\ Id.
    \51\ Badlands Golf Course, supra, 350 NLRB No. 28, slip op. at 5.
---------------------------------------------------------------------------
    As a Member of the Board, and a frequent dissenter in recent years, 
I have pointed out that the Board's decisions may exacerbate 
disenchantment with the Act. If employees and labor unions, for 
example, turn away from the Board because they lack confidence in it, 
then the Board's effectiveness is necessarily diminished. Even if I am 
not in a position to suggest what should be done, I fully understand 
why the subcommittee and the Congress would be concerned.
    I would be happy to answer your questions.

    Senator Harkin. Well, thank you, both, very much. I would 
start with Mr. Schaumber.
    The administration's taken actions recently to inform 
workers during organizing campaigns of how to withdraw 
financial support for a union and how to petition for 
decertification. That was an executive order.
    Has the Board taken any action to inform workers of their 
rights to join a union or be involved in the process of 
organizing?
    Mr. Schaumber. Let me answer the question this way, 
Senator. Whenever there is an election notice, it contains a 
statement of rights. The Board has not issued a separate 
notice, apart from the election context, advising employees of 
their rights under the act.
    A petition was filed by Professor Morris. It was filed 
many, many years ago. In fact, I think, although I could be 
incorrect, 15 to 17 years ago. It was never acted on by the 
prior Board or this Board. One of the reasons that it has not 
been acted on is that there is concern over the authority of 
the Board to issue such a notice-posting requirement.
    The employment statutes which permit notice posting all 
contain a provision permitting it, except for the Fair Labor 
Standards Act. There's some peculiarity in that act. I don't 
recall exactly what it is, but there is a notice posting 
requirement under the FLSA but there is no expressed provision 
in the statute, but our statute does not contain a provision 
for notice posting.
    I would say, however, we have developed a marvelous 
website. It has received accolades from many. It's very easy to 
use and employees who get on our website can very easily see 
what their rights are under the National Labor Relations Act, 
how they can file a petition, where they can file a petition, 
what regional office to go to.
    Senator Harkin. I'll get back to that. Mr. Schaumber, I've 
also been engaged in a lot of mine safety work in the last few 
years, so has Senator Specter. In that arena, Federal 
inspectors issue additional penalties for repeated violators of 
the law. Okay? That's under MSHA.
    Has the Board taken any action to fine repeat violators and 
step in to prevent unfair labor practices from repeat 
violators?
    Mr. Schaumber. We do not have the authority under the act 
to impose fines. We have, however, imposed in certain 
situations bargaining costs where there has been surface 
bargaining or bad faith bargaining. We have on occasion imposed 
attorney's fees.
    The Board does issue broad orders in connection with 
violations of the act by employers that are persistent and 
repeated. In addition, the general counsel side of the agency 
can go to court and seek a contempt citation when an employer 
violates a Board order.
    Senator Harkin. Does the act give you broad authority to 
prevent unfair labor practices? No?
    Mr. Schaumber. I believe it does.
    Senator Harkin. It does?
    Mr. Schaumber. Yes.
    Senator Harkin. Oh, yes.
    Mr. Schaumber. The authority we are given is authority to--
the statute reads we can enter a cease and desist order 
ordering the employer or the union to restrain and stop the 
unfair labor practice and we can take such other affirmative 
actions as the Board deems appropriate, and the Board has over 
the years developed a variety of affirmative action which it 
takes in its order in order to rectify an unfair labor practice 
such as the reinstatement of employees. In 2007, the Board 
awarded approximately $110 million in back pay. It reinstated 
roughly 2,500 employees. Over the last 5 years, it has awarded 
approximately $604 or $640 million in back pay, and----
    Senator Harkin. Those are all nice big figures, but what it 
doesn't tell us is how many didn't have to pay back pay.
    Mr. Schaumber. Well, if we did not find a violation, there 
would be no order requiring the back pay.
    Senator Harkin. That's right, that's right. So, we have 
no--I don't have any statistical data regarding that, how many 
were filed, but you found no violation or something like that 
and we don't--I don't have any.
    So, you tell me there's $604 million been recouped and that 
sounds like a lot of money, but we don't know what that means 
in the broad picture.
    Mr. Schaumber. Let me--maybe I can help in some way. Of 
the, for example, 22,000 charges which were filed in 2007, 
merit was found by the general counsel in roughly 35 percent of 
the cases. They went to complaint. Ninety-seven percent of 
those complaints were settled. In fact, I think the--so, it's a 
substantial settlement rate.
    I'm aware, and I'm sure the Senator is concerned with 
respect to some of the cases that were cited by Member Liebman 
as cases with which she disagreed, and if I could comment on 
that very, very briefly.
    The cases with which Member Liebman--I think there were 
four instances where she found that statements made by an 
employer should have been found by the Board to be intimidating 
and coercive, she perceived them as such. You know, it's a 
difficult--sometimes the facts are difficult, and it's not an 
easy question to answer in some cases.
    Section 8(c) of the statute gives employers the right to 
express their views on unionization. The Supreme Court has said 
that section 8(c) implements the First Amendment----
    Senator Harkin. I understand.
    Mr. Schaumber [continuing]. And the--I could go through 
some of the facts, and I think, Senator Harkin, you may have 
some difficulty, too, as to where you would draw the line, but 
I also have with me a list of cases where Member Liebman and I 
and other Board members have been together in finding 
violations and I can assure the committee that for every one 
case that's been cited by my worthy colleague in dissent, there 
are many where we all have found violations.
    Again, I have that list with me. I can supplement the 
record with it.
    Senator Harkin. Thank you, Mr. Schaumber. I'll get back to 
that, too.
    Ms. Liebman, I just have one question. My time has 
basically run out for this round, but we'll have another round.
    Is it true that employers right now can choose to recognize 
card check for union decertification cases? Let me repeat that. 
Employers right now choose to recognize a card check rather 
than an election for union decertification cases?
    Ms. Liebman. In other words, to get rid of a union?
    Senator Harkin. Yes.
    Ms. Liebman. Yes. We don't quite use that terminology, but 
yes, it is true under existing law and always has been the law 
that if an employer gets proof that the union has lost majority 
status, it gets actual proof of that, it is entitled to 
withdraw recognition from the union.
    We don't call it decertify because only the NLRB certifies 
or decertifies, but it is entitled to withdraw recognition, if 
it is presented with evidence of a loss of majority status.
    Senator Harkin. What does that evidence consist of?
    Ms. Liebman. It could consist of a petition with employee 
signatures or cards and the union, if it has reason to believe 
the signatures were coerced, for example, or something like 
that, could file an unfair labor practice charge.
    Senator Harkin. Well, let me ask you this. If the 
employees--let's say that the employer sent around a petition 
and over--what do they have, over 50.1 percent?
    Ms. Liebman. Fifty percent, plus one.
    Senator Harkin. Fifty percent, plus one, two, two. I use 
decertify.
    Ms. Liebman. Yeah.
    Senator Harkin. Can the employees ask for a secret ballot 
in that case? Can they say, well, we'd like to have a vote and 
have a secret ballot on that?
    Ms. Liebman. Well, first of all, I think what you said is, 
``if the employer passed around the petition.'' The employer 
cannot circulate the petition. It's doomed and tainted--what we 
consider tainted--if the employer circulates it.
    Senator Harkin. Okay. All right.
    Ms. Liebman. But if--maybe alter the facts. If the 
employees were to circulate among themselves a petition and 50 
percent plus one----
    Senator Harkin. Yes.
    Ms. Liebman [continuing]. Signed it and then the--somebody 
filed for an election. I guess I'm trying to figure out the 
scenario in which it would happen. Because in that scenario, 
where the union is recognized, either an employee would file to 
decertify the union or maybe another rival union would come in.
    When the union's already recognized, the union doesn't have 
to go file to reaffirm its status, but if the employer withdrew 
recognition, the union, if it had proof of----
    Senator Harkin. What I'm getting to is let's say you have 
an employee, say goes around and gets 50 percent plus one to 
decertify the union. That's the word.
    Ms. Liebman. That's fine.
    Senator Harkin. Get rid of the union.
    Ms. Liebman. I understand what you mean.
    Senator Harkin. Who do they present that to? Who do they 
present that to?
    Ms. Liebman. They could file with the NLRB to get a 
decertification election----
    Senator Harkin. Okay.
    Ms. Liebman [continuing]. Or they could hand it to the 
employer.
    Senator Harkin. They could hand it to the employer.
    Ms. Liebman. Yes, and the employer, if it wanted to, could 
withdraw recognition, if it believed that that represented a 
majority.
    Senator Harkin. Withdraw recognition.
    Ms. Liebman. Or it could file itself a petition with the 
NLRB.
    Senator Harkin. So, the employer could remove recognition 
at that point?
    Ms. Liebman. Yes.
    Senator Harkin. At that point, could the employees--is 
there any right for the employees to have a secret ballot, say 
we don't--we think there was coercion by others to do this, can 
we have a secret ballot as to whether or not we want to 
continue our union representation?
    Ms. Liebman. I think the bottom line answer is yes, they 
could. The union, first of all, could file an unfair labor 
practice charge contending that there was coercion and that 
would have to be litigated.
    If the employer withdrew recognition, the union could then 
file itself for an election to reassert its majority status. 
The employees, someone can correct me if I'm wrong, the 
employees have a right to file themselves if they want to 
decertify the union.
    But I guess another--you could file a decertification 
petition just to have the union win that election, I suppose.
    Senator Harkin. Okay. Thank you.
    Ms. Liebman. I'm sorry if I confused the issue.
    Senator Harkin. Words, words, words.
    Senator Specter.
    Senator Specter. Thank you, Mr. Chairman. I note the 
harmonious relationship between Mr. Schaumber and Ms. Liebman, 
but in the event there were to be a disagreement with only two 
members present, the vote was 1 to 1 and it's a tie, what do 
you do? Flip a coin?
    Mr. Schaumber. I think it's fair to say that Member Liebman 
and I respect each other's views. We have been deciding cases. 
We agree, I think, roughly on 85 percent of the cases.
    Senator Specter. Come to my question.
    Mr. Schaumber. The 15 percent----
    Senator Specter. What do you do if there's a tie?
    Mr. Schaumber [continuing]. We put it aside. We cannot 
decide.
    Senator Specter. That's a fairly big impediment to the 
Board functioning, isn't it?
    Mr. Schaumber. It is.
    Senator Specter. Chairman Schaumber, you write in your 
written testimony that ``several cases have languished at the 
Board for unconscionable periods, although not infrequently for 
reasons beyond the agency's control.'' Well, not infrequently 
but there have been some times within the agency's control.
    But what would you think about a mandatory rule that the 
Board would have to issue a decision within 1 year of the 
judgment by the administrative law judge or regional director?
    Mr. Schaumber. As you know, Senator, we prefer not to 
respond to questions with regard to proposed legislation. 
However, this is really procedural, not substantive.
    I think it's always--in my view, it seems to me it's always 
dangerous to put a statutory deadline in. There are some 
cases----
    Senator Specter. Well, how about a rule within 1 year, 
unless there is a good reason which is explained by the Board 
to justify the term?
    Mr. Schaumber. I always think oversight is helpful, 
Senator.
    Senator Specter. If it runs more than 30 days, say, 
justification. If you have to give a reason, there's more of an 
incentive to move ahead, at least there's some backstop. I'm 
glad to hear you say that that's not too bad.
    Ms. Liebman, you write in your written statement that 
``remedies for unlawful firings are notoriously weak and 
getting weaker.''
    I note that the Board does have authority for injunctions. 
In 2006, the last year for which statistics are available, the 
Board chose to seek an injunction in only 25 cases. Injunctions 
are very effective. You go into court and you apply for an 
injunction and you produce evidence and you get the potential 
for a prompt ruling.
    Why not more injunctions, Ms. Liebman?
    Ms. Liebman. Senator Specter, the procedure for the Board 
authorizing injunctive relief in cases like that is that we 
wait for the recommendations to seek injunctive relief to come 
to us from the general counsel of the agency. The general 
counsel in turn gets these recommendations from the regional 
offices.
    Senator Specter. Now whom does the regional office look to? 
How many steps are there here?
    Ms. Liebman. The regional office----
    Senator Specter. The value of an injunction is that it's 
fast. If you have to play tennis, it could take forever.
    Ms. Liebman. You're absolutely correct, and in fact, the 
Dunlop Commission pointed out--did a contrast. The statute, in 
section 10(l), provides for mandatory injunctions in cases 
where it's alleged that a union has engaged in secondary 
boycott conduct and by contrast, section 10(j) just provides 
for permissive injunctive relief. So that's discretionary with 
the general counsel and the Board.
    So already there's a distinction between the two types of 
injunctive relief in the statute.
    Senator Specter. Well, it's discretionary, but how about a 
little muscle behind the discretion? If you're complaining 
about remedies, wouldn't injunctive relief solve a good bit of 
what you're concerned about?
    Ms. Liebman. I certainly think it would be another weapon 
in the arsenal, and injunctive relief----
    Senator Specter. In your arsenal?
    Ms. Liebman. In the arsenal, yes.
    Senator Specter. Go a little further, aside from having a 
quiver full of arrows.
    Let me recommend to you that injunctions are really good. I 
practice law and there's nothing like an injunction. It gets it 
done right away.
    Let me turn to this issue of the posting of remedies. 
Senator Harkin broached it. Chairman Schaumber, why not require 
that the employers post in the workplace official notice of 
employers' rights under section 7 of the National Labor 
Relations Act?
    My staffer notes this to be similar to the EEOC but it 
would also be similar to airports and hospitals. Notification 
of rights is pretty fundamental.
    Any objection to posting employers' rights? Employees' 
rights or employers' rights? Everybody's rights?
    Mr. Schaumber. I know of none, Senator. With regard to the 
act, there is no notice posting requirement. That's the 
difficulty with respect to the act.
    Senator Specter. No state posting--no notice posting?
    Mr. Schaumber. There's no provision in the act as to the--
--
    Senator Specter. Does that come under the interdiction of 
not commenting about the proposed legislation?
    Mr. Schaumber. Pardon me?
    Senator Specter. Does that come under the interdiction of 
not commenting on proposed legislation?
    Mr. Schaumber. I hope not.
    Senator Specter. Or is it an interdiction? It's just 
something you have decided among yourselves?
    Mr. Schaumber. No, no, no. In fact, there's some 
disagreement, but I think the reason why the Board has not 
acted, although I quite candidly think the Board should have 
acted on it 10 years ago, on the petition seeking notice 
posting is because a number of Board members believe the 
statute did not authorize us to do so.
    What, for example, is----
    Senator Specter. So, we can change the statute?
    Mr. Schaumber. You certainly can, Senator.
    Senator Specter. I've been advised by my general counsel 
that I've covered everything and I always take my lawyer's 
advice.
    Thank you, Senator Harkin. I do not need a second round.
    Senator Harkin. I just have a couple of other questions.
    Mr. Schaumber, in fiscal year 2007, my staff informs me 
that 976 petitions for an election were filed where no election 
ever happened. That was 32 percent of all petitions. There was 
33 percent in 2006, 46 percent in 2005. Again, I just question 
why are so many petitions not making it all the way to an 
election?
    Mr. Schaumber. Senator, I'm a bit at a loss. I'm unfamiliar 
with those numbers. We--the numbers of which--well, one of the 
reasons that an election doesn't go forward, it can be 
voluntarily withdrawn.
    With regard to RC, that is petitions by which unions are 
seeking certification, in 2007, there were roughly 2,300 such 
petitions filed, 2,030 went forward. These are the numbers 
which I received from the general counsel's office, which would 
mean that roughly 300 did not, and very often petitions are 
withdrawn.
    But I don't--I'd be happy to supplement the record if I had 
those figures and confirm them with the general counsel.
    Senator Harkin. Well, that's just figures I was given here. 
That's all I know. I'll get those to you and if you'd respond, 
I'd appreciate it.
    Mr. Schaumber. We will do so.
    Senator Harkin. Thank you very much on that data. The 
latest annual report includes 40 tables and 18 charts on labor 
violations, but no where does it say how many violations 
happened during elections. Every 6 months, the NLRB publishes 
40 pages of statistics on recent elections but not a single 
number on a single page tells us about anything about 
violations or problems in those elections. We don't even know 
how many elections had an illegal firing or suspension.
    I think this would be important for us to know. Both sides, 
industry and unions, will testify on the second panel that the 
information provided by the Board isn't helpful, can't be 
studied, at least that's from their written testimony, and I 
just wondered if you could respond to that.
    Mr. Schaumber. Yes, Senator. I certainly agree with you 
that that would be information well worth having.
    We asked, in preparation for the hearing, that very 
question; that is, the number of ULPs that are committed during 
organizing campaigns. I received some data. In fact, it was in 
my oral statement. I withdrew it yesterday because it was 
inconsistent with some other data and I asked for an 
explanation from the general counsel's side of the agency. They 
are reviewing the figures now and I will be able to supplement 
my statement with it.
    Senator Harkin. Okay.
    Mr. Schaumber. I would just give you one figure which is 
that we know that unions file charges, blocking charges in 4.8 
percent of RC, that is certification, elections. So, now those 
charges may be meritorious, they may not be, but it gives you 
an idea of the, if you will, what may or may not be the scope 
of the problem.
    Can I supplement that with one further thing?
    Senator Harkin. Sure.
    Mr. Schaumber. We are also speaking with the general 
counsel side and the general counsel is interested in trying to 
improve their data collection and we have a new computer 
system. One of the problems--and I'm sure you don't want to 
hear about this--is that apparently when they try to retrieve 
data, it comes in different years, it comes from different 
places, and they're having some difficulty with it, but that is 
a new initiative which I believe the general counsel is going 
to undertake.
    Senator Harkin. Thank you, Mr. Chairman. Ms. Liebman, do 
you have anything else to add to the hearing?
    Ms. Liebman. Just in response to the question you posed. In 
the mid 1990s, when I was the Deputy Director at the Federal 
Mediation and Conciliation Service, the Dunlop Commission 
inquiry was ongoing, and at that time, the Dunlop Commission 
was very concerned about some of these same issues and they got 
together with people at the NLRB and the FMCS to see if we 
could do some coordination of our data to answer some of the 
questions that you just posed.
    It took some time for the computer systems, and I don't 
know the technicalities of what was done. But Tom Kochan, who 
was the professor at MIT that I mentioned, was on the Dunlop 
Commission, and he's kept after this initiative. It is his 
scholarly work that is still a work in progress, but that I 
cited in my testimony. They've tried to coordinate those NLRB 
certifications that are then sent to the Federal Mediation 
Service, which are then assigned as cases to the mediators to 
give special attention to as first contracts.
    They tried to look at the incidence of unfair labor 
practices during the elections and during the negotiations and 
that data, I'm sure, would be, could be made available to you 
if you were interested.
    Senator Harkin. That data just isn't available to the 
public?
    Ms. Liebman. Well, I think the professors are still working 
on their conclusions, but I'm sure it could be submitted for 
the record. I didn't want to do it without their permission, 
but I could certainly try to get that for you, if you are 
interested. As I say, they consider it a work in progress.
    Senator Harkin. We'll get back to you on that.
    Senator Specter. Mr. Chairman, I have just one more 
question for Ms. Liebman, and that is, the Board adjudicates 
many cases in which unfair labor practices were committed, 
where, for example, an employer discourages its employees from 
supporting a union's organizing campaign by firing an employee 
whose support is known and visible.
    In 2005, for example, there were more than 2,000 such 
cases, and some of the criticism has been that that's just part 
of the cost of doing business.
    Would you care to render an opinion on whether the remedies 
might be expanded to have double or treble back pay or a fine 
or attorneys fees to increase those penalties?
    Ms. Liebman. Yeah. Let me say, as I have said already, that 
the Board's remedies, particularly with respect to unlawful 
discharges but refusals to bargain as well, have been treated 
by many scholars and observers of the Board for years as 
notoriously weak. This really was the first workplace statute.
    Since then, many discrimination statutes have been passed 
by the Federal Government and by States and most of those 
contain remedies which provide much more by way of compensation 
to the victim of discrimination, whether compensatory damages 
or other types of measures.
    All the Board can do is provide back pay which has to be 
mitigated by the interim earnings and order reinstatement. I 
don't know what the numbers are. My understanding is that very 
few people actually take reinstatement and when they----
    Senator Specter. Well, the mitigation provision 
substantially reduces any obligation.
    Ms. Liebman. Yes, it does, and recent decisions of the 
Board have really increased some of the burdens on an employee 
to mitigate. One recent decision said that if the employee 
didn't go out and look for a job immediately, then there was 
evidence of his idling and so the back pay would be reduced.
    As I recall the facts in that case, the----
    Senator Specter. So it's reduced not only by mitigation but 
some theory of lack of effort to----
    Ms. Liebman. Yes.
    Senator Specter [continuing]. Find a job?
    Ms. Liebman. Yes, if it's found that they didn't make a 
sufficient effort to look for a job.
    So, the remedies clearly are weak and certainly a 
revisiting of the remedies is warranted, not only in the 
discharge cases but also the bad faith bargaining cases. 
Essentially the remedy in a bad faith bargaining case is stop 
bargaining in bad faith, to bargain in good faith, and to post 
a notice. Those are kind of weak.
    I think if an employer is intent on killing an organizing 
drive, the deterrent value from our remedies are really quite 
minimal.
    Senator Specter. Thank you, Ms. Liebman. Thank you, 
Chairman Schaumber.
    Mr. Schaumber. Senator Specter, could I just add one thing 
for the record? I believe under Title VII, there's a mitigation 
requirement and I believe the case Member Liebman is referring 
to, we gave the employee 2 weeks' time before they began 
looking for a job.
    Senator Harkin. Thank you. Thank you very much, both of 
you. We'll call our second panel now. Thank you, both. You're 
dismissed.
    Dr. Gordon Lafer, Director of Labor Education and Research 
Center, University of Oregon, author of a book called ``Neither 
Free Nor Fair: The Subversion of Democracy Under NLRB 
Elections.''
    Dr. Lafer received his degree in Economics from Swarthmore 
College and his Ph.D. with distinction from Yale University in 
1995.
    John Raudabaugh is a partner at Baker & McKenzie in 
Chicago. He was a member of the NLRB from 1990 to 1993, and he 
holds a B.S. in Labor Economics from the University of 
Pennsylvania, a Master's degree from Cornell, and his Juris 
Doctorate from the University of Virginia.
    Welcome, both of you, to the hearing, and as I said before, 
your records will be made a part of the record in their 
entirety, and I'd ask you, please, to proceed and we start with 
Dr. Lafer, at least that's what my book says here.

STATEMENT OF GORDON LAFER, Ph.D., ASSOCIATE PROFESSOR, 
            LABOR EDUCATION AND RESEARCH CENTER, 
            UNIVERSITY OF OREGON, EUGENE, OREGON
    Dr. Lafer. Chairman Harkin, Senator Specter, thank you for 
the opportunity to be here.
    My name is Gordon Lafer. I hold a Ph.D. in Political 
Science from Yale University, and I'm now a professor at the 
University of Oregon. I'm also the founding co-chair of the 
American Political Science Association's Labor Project.
    Over the last 4 years, I've done extensive research 
comparing NLRB elections to the American standards defined from 
the founding fathers to the present for determining what 
constitutes a free and fair election.
    I think that when most people hear that there's something 
called ``union elections,'' they assume that they must work the 
same way as elections to Congress or the presidency, and 
unfortunately nothing could be further from the truth.
    On close inspection, what NLRB elections look like is more 
like the discredited practices of rogue regimes abroad than 
like anything we would call American. I've attached an 
extensive report that summarizes that research. I want to touch 
on just a few of those points today.
    Senator Harkin. Do we have that report?
    Dr. Lafer. Please.
    Senator Harkin. Not right now.
    Dr. Lafer. I understand. Let me start by just saying a word 
about secret ballots. There's some who suggest that as long as 
an election ends in a secret ballot, it doesn't matter what 
happens before, it's got to be fair, that in the workplace, 
even if an employee is intimidated into telling their employer 
that they're anti-union, as long as at the end of the day, they 
get to go into a private voting booth and vote their conscience 
in secret, the election is fair.
    It's critical to note that the American democratic 
tradition for 250 years fundamentally rejects this view. While, 
of course, we have secret ballots in Federal elections, there 
are a host of other standards in the time leading up to 
election day, things like freedom of speech, equal access to 
the media, that must be in place for an election to be deemed 
free and fair.
    Indeed, our government regularly condemns as undemocratic 
elections in other countries, even when there is no question 
that the election ended in a secret ballot. After all, Saddam 
Hussein had secret ballots. The Republic of Iran uses secret 
ballots. How dictatorial regimes remain in power with the use 
of secret ballots is by threatening the employment of people 
who disagree with the ruling party, dominating the media and 
shutting out the opposition, not letting the opposition have 
candidates to the voters. These are well known techniques. We 
call these sham elections.
    Unfortunately, when measured against these standards, every 
single aspect of the NLRB system, with the partial exception of 
the secret ballot, and as I'll describe later, there is not 
really a secret ballot in NLRB elections, but every other 
aspect fails to meet the minimum standards that we use in 
American democracy for qualifying an election as free and fair.
    Let me just touch on a few of these. The first is equal 
access to voter lists. The first thing that anyone does in the 
United States, if they're contemplating running for office, is 
usually go to the registrar of voters and say I'd like to have 
a list of eligible voters in my district.
    By law, the registrar must supply that list on the same 
basis at the same time and the same cost to both candidates. In 
NLRB elections, however, management obviously has the complete 
contact information for all employees, from their date of hire, 
and is free to campaign against unionization from day one while 
pro-union employees only get the list of eligible voters after 
a petition has been filed and after all legal challenges have 
been exhausted.
    When the Dunlop Commission, the last commission to study 
this, looked at this, they concluded that on average, pro-union 
employees got the list only 10 to 20 days before the vote.
    If we think about elections to the Senate happening this 
way, where one candidate got the voter rolls 2 years before the 
vote and the other one got it 20 days before the election, none 
of us would call this free or fair and the fact that it ended 
in a secret ballot would in no way change that.
    Free speech obviously is the cornerstone of American 
democracy, including equal access to the media. There's no such 
thing as a park or a mall which is available to one candidate 
in Federal elections and off-limits to the other. Radio and TV 
stations are required to sell ad time on an equal basis, et. 
cetera.
    But in NLRB elections, management is allowed to plaster the 
workplace with anti-union posters, bullet boards and leaflets 
while banning pro-union employees from doing likewise. Anti-
union managers are free to campaign all day every day every 
place in the workplace against unionization while pro-union 
employees can only talk about unionization on their break time.
    The most extreme restriction on free speech is employers 
forcing workers to attend mass anti-union meetings. Not only is 
the union side not given equal time but pro-union employees can 
be forced to attend on condition that they not ask any 
questions and if they do open their mouth and ask a question 
anyway, they can be fired on the spot and that is legal.
    Let me say a brief word about the issue of economic 
coercion of voters, which is an issue from the founding fathers 
that there's been great concern about. The founding fathers 
were very concerned that employees would be unduly influenced 
by their employers.
    Alexander Hamilton worried that ``generally power over a 
man's purse is power over his will,'' and for this reason, we 
have a raft of Federal and State statutes specifically designed 
to protect employees from the undue influence of their 
employers.
    In Federal elections, for instance, under the FEC, it is 
blanket illegal for a private corporation to tell its rank and 
file employees anything about which candidate or which party 
they think they should support. So, the very thing that is 
banned in Federal elections because Federal law understands 
that employees are very nervous and very sensitive to the words 
of their employers, that thing is not only legal but is the 
centerpiece of management anti-union campaigns under the NLRB 
which is having upper level management and immediate 
supervisors repeatedly stress to their people that are their 
subordinates why they should vote no.
    I mentioned before that there is not truly a secret ballot 
in the NLRB system and I want to explain this. The principle of 
the secret ballot in America is not that you only have a secret 
ballot for the 30 seconds when you're in the voting booth. It 
is more broadly the principle that you have the right to keep 
your political opinions to yourself before, during and after 
the act of voting.
    If a neighbor or someone running for office or a canvasser 
knocks on your door and says I'd like to know who you're 
supporting. You are free to say I'd rather not talk about it, 
it's none of your business.
    In the employment situation, under the NLRB, management is 
schooled, and this is not my say-so, this is in the written 
manuals of the multimillion dollar industry of management side 
attorneys and consultants, tells supervisors to go to each of 
their subordinates and because it's illegal for them to say are 
you voting union or not, they're schooled in having whether 
eyeball-to-eyeball conversations, making provocative anti-union 
statements, listening to someone's reaction, watching their 
body language, and grading them on a 1-to-5 scale if they're 
pro-union or anti-union, and doing this repeatedly day after 
day after day.
    If you're a supremely skilled actor or liar, you can keep 
your opinion hidden, but for the vast majority of people, their 
opinion is known long before they walk into the voting booth. 
To have privacy for the 30 seconds you're in the voting booth 
when your employer already knows before you walk in there which 
way you're going to vote is a sham secret ballot. It's an 
evisceration of the real principle of the secret ballot.
    The sad fact is that right now, our government upholds 
higher standards for voters abroad than at home. For instance, 
in 2002, the State Department condemned elections in the 
Ukraine for being undemocratic. Among the reasons they cited 
were that employees of state-owned enterprises were pressured 
to support the ruling party, faculty and students were 
instructed by their university to vote for specific candidates, 
and the ruling party dominated the media while shutting out the 
opposition.
    Every one of these practices for which the Ukrainian 
elections were deemed undemocratic are completely legal and 
completely commonplace in NLRB.
    Let me just say finally that one of the final problems with 
the system is not just a profoundly undemocratic election 
system but a system that is set up to allow anti-union 
consultants to prevent there from ever being an election, and 
on this point, I think it's important to know that while 
employer associations, including the Chamber of Commerce in 
previous testimony, have stated their opposition to the 
Employee Free Choice Act by saying they're defending the 
employee's sacred right to a secret ballot election.
    In their own publications of management side, attorneys and 
consultants, including many who are affiliated with the Chamber 
of Commerce and other employer associations, what they say is 
their foremost goal is to deny employees the right to any 
election whatsoever, secret ballot or otherwise.
    To get an election under the NLRB, 30 percent of employees 
need to sign cards to file a petition. The union avoidance 
industry says its first and foremost goal is to run an anti-
union campaign that stops employees from ever collecting 30 
percent of their co-workers' signatures, so there never can be 
an election, and again this is not something that I'm making 
up.
    The law firm of Jackson, Lewis, one of the most prominent 
management side labor law firms, and I'm sure Mr. Raudabaugh's 
familiar with this since one of their partners sits on his 
Labor and Employment Relations Committee at the Chamber of 
Commerce, says, ``Winning an NLRB election undoubtedly is an 
achievement, a greater achievement is not having won at all.''
    So, I think it's important for us to know that the problem 
with the system is both that it's a profoundly undemocratic 
election system and that it's one that facilitates a 
multimillion dollar industry whose goal is for workers to never 
even get to an election.

                           PREPARED STATEMENT

    I would like to say in conclusion simply that 
unfortunately, I think the problems with the system are not 
problems that can be fixed by tinkering or by better funding or 
by administrative fixes. They're problems that require 
fundamental changes in the law and if we're serious about 
providing democratic rights for workers in the American 
workplace, we need to look at those problems seriously and 
begin at that point.
    Thank you very much. I'd be happy to answer any questions 
the committee may have.
    Senator Harkin. Thank you very much.
    [The statement follows:]

                 Prepared Statement of Dr. Gordon Lafer

    Chairman Harkin, Senator Specter, and members of the committee, 
thank you for the opportunity to participate in this hearing. My name 
is Gordon Lafer. I hold a PhD in Political Science from Yale University 
and am currently a professor at the University of Oregon's Labor 
Education and Research Center. I am also the founding co-chair of the 
American Political Science Association's Labor Project.
    Over the past 4 years, I have conducted extensive research 
measuring the extent to which National Labor Relations Board elections 
match up to American standards--developed from the Founding Fathers to 
the present--for defining ``free and fair'' elections. Unfortunately, I 
must report that NLRB elections look more like the discredited 
practices of rogue regimes abroad than like anything we would call 
American.
    I would like to briefly describe the problems that currently plague 
the NLRB election system as well as the difficulties in negotiating 
first contracts.
    I have attached a report that summarizes my research on NLRB 
elections.
    Today I want to focus on just a few highlights.

                       THE ROLE OF SECRET BALLOTS

    In fact, there is no truly secret ballot in Labor Board elections, 
because supervisors are permitted to interrogate their underlings in 
terms that force most employees to reveal their political choices long 
before they step into the voting booth. The pressure tactics used to 
force employees to reveal their political preferences would be illegal 
in any election to the Senate--and we would not tolerate them in any 
foreign elections that claimed to be democratic. I would be happy to 
explain this problem further if Senators have followup questions on 
this issue.
    Before going into the substance of my findings, I want to say a 
word about secret ballots, since so much of the debate around labor law 
reform has focused on the role of secret ballots.
    Defenders of the current system argue that NLRB elections represent 
the ``gold standard'' for democracy in the workplace for a single 
reason: that Board elections end in a secret ballot.
    To some, it may seem that as long as an election ends in a secret 
ballot, it must be fair. In the workplace, one might imagine that even 
in the worst case, if a worker is intimidated by his or her employer, 
one could lie to one's supervisor and pretend to be opposing the union; 
as long as, at the end of the day, you cast your ballot in the privacy 
of a voting booth, you are free to exercise your conscience.
    It is critical to note that the American democratic tradition--from 
the Founders to the present--fundamentally rejects this view. In 
elections to public office, while the secret ballot is a necessary 
ingredient, there are a whole set of standards that must be met in the 
leadup to election day--such as equal access to the media and voters, 
free speech, etc.--which are equally crucial elements of defining a 
``free and fair'' process. Indeed, our government has often condemned 
elections abroad when there was no question that they ended in a secret 
ballot, because they failed to meet these other, equally important 
standards.
    After all, even Saddam Hussein had secret ballots. Indeed, history 
is full of dictatorial regimes that have remained in power despite the 
use of secret ballot elections. How do they do it? Through things such 
as threatening the livelihoods of opponents; denying them access to the 
media; and forcing all voters to attend propaganda rallies for the 
ruling party. Our government has rightly condemned these votes as 
``sham elections.''
    Unfortunately, the very standards that we insist on as minimal 
guarantors of democracy in other countries is violated by the NLRB 
system. With the exception of the secret ballot--and, as I will discuss 
later, there is no truly secret ballot in NLRB elections--every other 
aspect of NLRB elections fails to meet American standards defining 
``free and fair'' elections.
    Today I would like to focus on just three dimensions of democratic 
elections: access to voters; free speech; and protection of voters from 
economic coercion.

                         ACCESS TO VOTER LISTS

    The first step in any American election campaign is getting a list 
of eligible voters, and it is law that both parties must have equal 
access to the voter rolls.
    In NLRB elections, however, management has a complete list of 
employee contact information, and can use this for campaigning against 
unionization at any time--while employees have no equal right to such 
lists. Employers use legal maneuvers to delay union elections for 
months. Only after all delays have been settled does the union have a 
right to the list of eligible voters. A federal commission found that 
on average, unions received the voter list less than 20 days before the 
election.\1\ Even then, the NLRB requires employers to provide workers' 
names and addresses--but no apartment numbers, zip codes, or telephone 
numbers.
---------------------------------------------------------------------------
    \1\ Dunlop Commission, Final Report, p. 47.
---------------------------------------------------------------------------
    If we imagine this system being applied to senatorial elections--
where one candidate had the voter rolls 2 years before election day, 
while his or her opponent was restricted to a partial list and only got 
it a month before the vote--none of us would call this a ``free and 
fair'' election.

                      ECONOMIC COERCION OF VOTERS

    When the founders of our country created the world's first 
democracy and gave the vote to the common people, they were 
particularly concerned that employers might use their economic power 
over workers to influence their political choices. In general, 
Alexander Hamilton warned, ``power over a man's purse is power over his 
will.''
    For this reason, there is a wide range of Federal and State laws 
that make sure employees can make political choices free from economic 
coercion.
    In Federal elections, it is illegal for a private corporation to 
tell its employees how they should vote, or to suggest that if one 
party wins business will suffer and workers will be laid off.\2\ 
Supervisors or managers can't say anything to those they oversee that 
amounts to endorsing one side or the other. It is noteworthy that 
Federal law doesn't require that employers spell out a quid pro quo 
threat stating, for instance, that anyone caught wearing a button 
supporting the ``wrong'' candidate will never get a promotion. It is 
understood that employees naturally are extremely sensitive to the need 
to make a good impression on their boss, and don't need a threat to be 
spelled out for it to influence their behavior. Thus, Federal law 
protects the ability of workers to make a political choice based on 
personal conscience rather than economic coercion.
---------------------------------------------------------------------------
    \2\ Under FECA, corporations are free to campaign to their 
``restricted class'' of managerial and supervisory employees, but are 
prohibited from engaging in any communication to rank-and-file 
employees that includes express advocacy for a specific candidate or 
party. 2 USC 441(b)(2)(A); 11 CRF 114.3, 114.4. According to the FEC, 
``express advocacy'' can be either an explicit message to vote for or 
against a given candidate, or a message that doesn't use such explicit 
language but that ``can only be interpreted by a `reasonable person' as 
advocating the election or defeat of one or more clearly identified 
candidates.'' Federal Election Commission, Campaign Guide for 
Corporations and Labor Organizations, Washington, DC, June 2001, p. 31.
---------------------------------------------------------------------------
    But in NLRB elections, this kind of intimidation is completely 
legal. Standard employer behavior involves having mass meetings where 
upper management attacks the idea of unionization, and then having 
supervisors tell each of their subordinates personally that they should 
vote against the union. In this way, NLRB elections maximize exactly 
the kind of behavior that is banned in federal elections.

                 FREE SPEECH AND EQUAL ACCESS TO MEDIA

    Free speech is the cornerstone of American democracy.
    In election to public office, it is a bedrock principle that there 
is no such thing as a neighborhood, park or shopping mall that is 
accessible to one candidate but off-limits to the other. Radio and 
television stations are required to sell ad time on the same terms to 
competing candidates. Even private corporations are prohibited from 
inviting one candidate to address employees without giving equal 
opportunity to the opposition. From the founders to the present, it has 
been understood that democracy requires free speech, equal access to 
the media, and robust debate.
    Yet this most basic standard of freedom is ignored by the NLRB.
    Management is allowed to plaster the workplace with anti-union 
leaflets, posters, and banners--while maintaining a ban on pro-union 
employees doing likewise.
    In addition, anti-union managers are free to campaign against 
unionization all day long, anyplace in the workplace, while pro-union 
workers are banned from talking about unionization except on break 
times. As a result, research shows that in a typical campaign, most 
employees never even have a single conversation with a union 
representative.
    The most extreme restriction on free speech is employers' forcing 
workers to attend mass anti-union meetings. Not only is the union given 
no equal time, but pro-union employees can be forced to attend with the 
condition that they don't open their mouths. If they ask a question, 
they can be fired on the spot.
    If, during the 2004 presidential election, the Bush campaign could 
have forced every voter in America to watch the Swiftboat Veterans' for 
Truth movie, with no opportunity for response from the other side--or 
if the Democrats could have forced everyone to watch Fahrenheit 9/11--
they might well have seized the opportunity. But none of us would call 
this democracy.

                NO TRULY SECRET BALLOT IN NLRB ELECTIONS

    While defenders of the NLRB system point to its secret ballot as 
the guarantor of democratic rights, in fact the system does not 
guarantee true privacy of the ballot.
    In the American democratic tradition, the principle of the secret 
ballot is more than simply the fact that one enters a private booth to 
cast one's ballot. It is, more broadly, the right to keep one's 
political opinions to oneself--before, during and after the moment of 
voting. If a friend, neighbor or canvasser asks whom you are supporting 
in an election, you don't have to say. Indeed, you don't have to talk 
to them at all. The right to a secret ballot includes the right to 
refuse to participate in conversations designed to flush out one's 
politics: you cannot be forced to engage in a conversation that reveals 
your political preferences. It is this right, as much as what happens 
on Election Day itself, that makes up the principle of the secret 
ballot. Each of us is guaranteed the right to make political decisions 
as a matter of individual conscience, and to control how and whether we 
choose to share that with anyone else.
    While NLRB elections do culminate in a private voting booth, they 
effectively undermine the secret ballot by allowing management to 
engage in practices that force workers to reveal their political 
preferences long before they step into the voting booth.
    The standard procedure of employers--as documented in the 
guidebooks of management-side attorneys and consultants--is to have 
every supervisor require each of their subordinates to participate in 
intensive one-on-one conversations designed to flush out that worker's 
feelings about unionization. These conversations happen multiple times 
during the course of the election campaign--sometimes multiple times 
per week. Because it is illegal to directly ask workers how they're 
voting, supervisors are coached in how to get this information without 
using those explicit words. Supervisors are, instead, instructed to 
have ``eyeball to eyeball'' conversations, in which they make 
provocative anti-union statements, and then carefully observe their 
subordinates' body language, listen to their response, and report back 
to the consultants who typically run such campaigns, grading each 
worker on a 1-5 scale measuring their political leanings.
    Employees cannot refuse to participate in these conversations. But 
under this type of interrogation, only the most skilled of actors or 
dissemblers can fool their supervisors and keep their political 
leanings truly secret. Everyone else reveals their preferences--indeed, 
one management attorney boasted that, through the use of such methods, 
he could almost always predict the final vote total with remarkable 
accuracy.
    The principle of the secret ballot is that you have the right to 
keep your political opinions to yourself forever, not just for the 60 
seconds that you stand in the voting booth. By permitting employers to 
limit the secrecy of the ballot to the moment of voting, the NLRB 
system has hollowed out the fundamental meaning of this principle.
    These practices would of course all be illegal if carried out in 
the context of a campaign for federal office. If we saw this happening 
in another country, we'd say that the secret ballot had been 
eviscerated in all but name. But this is the system currently in place 
in workplaces across our country.

                  HIGHER STANDARDS ABROAD THAN AT HOME

    The truth is that we uphold higher standards for voters abroad than 
for American workers.
    In 2002, the State Department condemned elections in Ukraine for 
failing to ``ensure a level playing field,'' because:
  --employees of state-owned enterprises were pressured to support the 
        ruling party;
  --faculty and students were instructed by their university to vote 
        for specific candidates; and
  --the governing party enjoyed one-sided media coverage, while the 
        opposition was largely shut out of state-run television.
    Every one of these practices is completely legal under the NLRB.
    The sad fact is that right now, our government demands higher 
standards of democracy for voters in Ukraine than it does for Americans 
in workplaces across the country.

                      NEGOTIATING A FIRST CONTRACT

    As stated in the Wagner Act, it is Federal policy to encourage 
collective bargaining. One of the major obstacles to realizing this 
goal, however, is the difficulty workers face, even after winning 
recognition of their union, in negotiating a first contract. Studies 
estimate the up to one-third of newly organized unions fail to ever 
achieve a first contract.
    This remarkable failure rate represents a widespread effort of 
employers to eliminate collective bargaining before it can take root as 
established practice in the firm. These employers view first contract 
negotiations as a second chance--following an election in which workers 
choose to organize--to keep their employees from having a collective 
voice in the workplace.
    The NLRB system, while not per se encouraging such obstructionist 
behavior, greatly facilitates it. Employer-side attorneys and 
consultants regularly counsel their clients to adopt a strategy of 
maximum delay, in order to erode employees' sense of hope and 
confidence in the collective bargaining process; there is nothing in 
the NLRB system to contain such tactics. Furthermore, when employers 
violate the law by refusing to bargain in good faith, by far the most 
common remedy required by the Board is simply for employers to promise 
to act correctly in the future; no penalty of any kind is imposed. 
Finally, when negotiations reach an impasse and both sides declare 
themselves stuck, the NLRB system imposes a one-sided solution: 
management's last proposal is unilaterally implemented and, by force of 
law, becomes the contract under which employees are governed. The ease 
with which most employees can be replaced, and the legal right of 
employers to permanently replace strikers, means that most workers 
cannot afford to strike to prevent this one-sided resolution. Knowing 
this, management-side attorneys often adopt a negotiating strategy 
explicitly aimed at reaching the point of impasse, forcing employees 
into a choice between an undesirable contract and the prospect of a 
long, costly and difficult strike.
    Those who defend the current system against the proposal for first-
contract arbitration sometimes insist that they are motivated by 
defending the right of employees to vote for themselves on what defines 
acceptable contract terms. But forcing employees to choose between a 
losing strike and having a one-sided contract unilaterally imposed on 
them is not a defense of workers' rights. I would guess that most 
employees would be perfectly happy to forego the ``right'' to have a 
contract unilaterally imposed on them.
    Similarly, opponents of first-contract arbitration sometimes raise 
the prospect of arbitrators deciding contracts on terms that render an 
employer financially insolvent or uncompetitive. But the data do not 
support this fear. There is an extensive track record of labor 
contracts settled by arbitration--in the private sector, in the public 
sector, and in other countries. I do not know of a single case where a 
public or private entity was forced to close operations as a result of 
contract terms established by arbitration.
    For employees--and for the federal goal of encouraging a stable 
regime of collective bargaining--establishing an impartial and non-
confrontational means for settling first contracts would be a major 
step forward.

           ILLEGAL ACTIVITY IN NLRB SYSTEM, COMPARED WITH FEC

    The things I've described so far are legal. However, NLRB elections 
are also characterized by an extraordinary level of illegal activity.
    Labor law is the only area of American employment law in which it 
is statutorily impossible to impose fines, prison, or any other 
punitive damage.
    As a result, it is not just ``rogue'' employers who break the law. 
Any rational employer might decide it's worth it to fire a few workers 
in order to scare hundreds more into abandoning their support for 
unionization.
    In my research, I have measured the impact of illegal retaliation 
against union supporters by making the most conservative possible 
calculations. Nevertheless, the results are extremely troubling. One 
out of every 17 eligible voters in NLRB elections is fired, suspended, 
demoted or otherwise economically punished for supporting unionization.
    If Federal elections were run by NLRB standards, we would have seen 
7.5 million Americans economically penalized for backing the ``wrong'' 
candidate in the last presidential election cycle.
    Imagine what this would mean. Every family in America would know 
someone who had been fired or suspended in retaliation for their 
political beliefs. Most citizens would quickly become too scared to 
participate in any public show of support for non-incumbent candidates. 
If we continued to hold elections amidst such widespread repression, 
they would be sham elections. The outcome would not represent the 
popular will, but would simply reflect the fear that governed the 
country.
    What I'm describing may sound like a bad science fiction movie. But 
it is the reality that workers face when they try to organize.
    If we compare illegal activity per voter under the NLRB with that 
under the FEC, the data suggests that NLRB elections are 3,500 times 
dirtier than federal elections.
    This number may sound incredible; but it's true. But suppose my 
numbers are off by as much as an entire order of magnitude. Then the 
NLRB system would be only 350 times dirtier than Federal elections.
    Any way you count it, the system is profoundly broken, profoundly 
undemocratic, and, I would say, profoundly un-American.

                               CONCLUSION

    If we're serious about having a truly democratic process for 
American workers, we must begin by fixing these problems.
    The undemocratic nature of the NLRB election system cannot be fixed 
by better funding or smarter administration. In can only be fixed by 
changing the law.
    Thank you again for the opportunity to be here today.
    I would be happy to answer any questions you may have.
Attachment
    G. Lafer, Neither Free Nor Fair: The Subversion of Democracy Under 
NLRB Elections, American Rights at Work, Washington, DC, July 2007.
    [Clerk's Note.--This material can be found at 
[email protected] or www.americanrightsatwork.org

    Senator Harkin. Mr. Raudabaugh.

STATEMENT OF JOHN N. RAUDABAUGH, ESQ., PARTNER, BAKER & 
            McKENZIE, LLP, CHICAGO, ILLINOIS
    Mr. Raudabaugh. Chairman Harkin and members of the 
subcommittee, thank you for inviting me to testify regarding 
NLRB Representation Elections and Initial Collective Bargaining 
Agreements, Safeguarding Workers' Rights, and just as a 
personal aside, I'm particularly pleased to be here with 
Senators from both Iowa and Pennsylvania, having my family come 
from Iowa and attended college at the University of 
Pennsylvania.
    This hearing examines Board elections and certified 
representatives' ability to obtain first contract by explicitly 
questioning whether workers' rights are protected in the 
process.
    Of course, workers' rights and the issues of elections and 
first contracts would be resolved quite differently were the 
Employee Free Choice Act to become law. Organized labor is 
fighting for its institutional life to be the only form of 
worker voice and to recapture a density from a time not to 
return as acknowledged by many, many professors and academics 
cited in my paper.
    Are workers' rights safeguarded in the NLRB election 
process? Yes. In fiscal year 2007, 1,559 elections were 
conducted and unions won 54.3 percent of those elections, the 
same rate they had for the years 1970 to 1974. Elections were 
conducted in a median of 39 days and only 13 or 1.1 percent of 
the elections unions won were challenged by technical refusals 
to bargain.
    Private sector union density has steadily declined from a 
high of 34 percent in 1954. This is not something new. In 2007, 
organized labor represented 7.5 percent of the private sector 
workforce. The reported prospects for a return to higher union 
densities are dim, reflecting a variety of factors, most 
notably the changed structure of the economy, employment 
shifting away from sectors where unions were historically 
strongest.
    Historically, American unions have grown during periods of 
extraordinary periods of upheaval, economic depression or war. 
Without the upheaval and spurts in growth, private sector union 
density will only increase by bringing the union and non-union 
growth rates into rough equality. Given the union cost premiums 
of which they're proud and the resulting well transfers, this 
is unlikely in a highly-competitive global marketplace.
    Despite these many factors and impediments to increasing 
union density, can union elections' success be improved on the 
margin by changes to the Board's election processes, by 
enhanced safeguards for workers' rights? I think perhaps.
    What the academic forays into the issue of Board election 
procedures teach is that the publicly-reported Board 
representation case data should be made more robust which in 
turn may silence the current attacks or perhaps launch new 
ones. Publicly available representation case data should report 
time through each procedural stage to allow computation of 
mean, median, mode and range.
    Case numbering should be expanded to facilitate correlation 
between C and R matters, unfair labor practice and 
representation case matters, of like union and employer 
complements. Internal Board workings can be studied. Election 
cases exceeding the 39-day present median can be examined and 
lessons learned can be shared to the extent this isn't already 
done.
    As to regional office and Board processing delays, 
consider, please, making fully transparent on the Board's 
website the daily status of all pending cases, including Board 
member actions and inactions. In my day, we had a one-member 
only list. If the three of you were on a panel and two of you 
had completed your decision, let's make it public. Who's 
holding up the time? To my knowledge, it's been 50 years since 
the Board's last investment in an outside comprehensive 
consultant study. This, too, may yield marginal improvements, 
but let's be clear.
    To suggest that the Board's secret ballot process and the 
applicable case law regarding campaign conduct is ``neither 
fair nor free or is a subversion of democracy'' is wrongly 
using war-like metaphors and it's false.
    Given the decline in union density, it follows that Board 
case law also declines, and I might add here that the ideas of 
extended terms or having Board members stay on until they're 
replaced are very appropriate suggestions.
    Are workers' rights safeguarded while the institutional 
parties, both union and employer, meet at reasonable times and 
negotiate an initial agreement in good faith? Yes, despite 
claims by researchers that only 56 percent of union election 
victories result in a first contract or only 20 percent of 
organizing drives end up with a labor agreement.
    The question of whether employee rights are protected 
relative to initial collective agreements implicitly suggests 
that failing at obtaining first contracts violates employee 
rights, but the act does not guarantee or mandate contract 
outcomes.
    Determining initial contract outcomes is suspect, given the 
lack of available and relevant data. I recommend that the Board 
engage a consulting firm or a government research agency, and 
I'll volunteer my time as well, to initiate a study mindful of 
all the parameters necessary to answer the kinds of questions 
that Senator Harkin asked: types of petitions and charges, 
timing through each decisional stage, relatedness between and 
among petitions and charges.
    Survey methodology and data must be public and available 
for independent research and assessment. Much, if not all, of 
the current academic research does studies limited to Chicago 
in a year, Indiana in 2 years. Believe me, from two degrees in 
labor economics and statistics, it is time to get all the data, 
analyze it and then we'll all live by the results, but going on 
these kinds of studies and making these incredible resolutions 
and suggestions is unfair to everyone.
    Additional remedies of the kind contemplated in EFCA would 
require amending section 10(c) of the statute. The Board is not 
empowered to award punitive damages. Furthermore, any such 
expansion of remedial authority would raise due process 
concerns given the current absence of prehearing discovery and 
power to subpoena, and rectifying the due process issues will 
inevitably lead to further delays in dispute resolution, 
election scheduling, and first contracts.
    The recent trend for States to intrude into the area of 
labor law is also concerning, raising the specter of 
conflicting and flexibilities and costs imposed on employers 
and market competitiveness. To do anything to force first 
contracts contravenes the act and destroys our tradition of 
freedom of contract.
    Whether by globalization, structural economic change, 
increased employer resistance given decreased union density, 
and corresponding economic leverage, unions' own complacency, 
as noted, or traditional adversarial unionism, 92.5 percent of 
the private sector workforce is not part of our legislated 
structured.
    Is the choice to be all or nothing, full-fledged 
representation in a deliberately adversarial top-down paradigm 
or no collective representation? The act's section 8(a)(2) 
prohibition on ``any organization of any kind which deals with 
employers denies millions of our fellow citizens a constructive 
voice at work.''
    Certainly the 92.5 percent of the private workforce who are 
not unionized are not well served by our current system 
offering the choice of confrontationalism or nothing but rare 
random opportunities for worker voice and participation.
    The Dunlop Commission's first goal for the 21st century 
workforce was to expand coverage of employee participation and 
labor-management partnerships to more workers, more workplaces, 
and to more issues and decisions. Labor policy and the act 
should be modernized to offer workers, citizens, what they want 
and what the economy needs.
    The Teamwork for Employees and Managers Act would have made 
this positive adjustment. Although the bill passed both Houses 
of Congress, it was unfortunately vetoed by President Clinton.
    One final thought. If Board delay, political swings or 
perceived politics of Board appointees is as troubling and rife 
as the academics seem to make fond of, consider a new approach. 
Spare us the endless rhetoric and the appalling use of war-time 
metaphors and create an Article 3 court for labor and all 
workplace-related law enforcement.

                           PREPARED STATEMENT

    This concludes my testimony, and I thank you very, very 
much for directing your attention to the issues of our modern 
day workplace. I look forward to discussing my comments during 
the question and answer period.
    [The statement follows:]

                Prepared Statement of John N. Raudabaugh

    Chairman Harkin and members of the subcommittee, thank you for 
inviting me to testify regarding ``NLRB Representation Elections and 
Initial Collective Bargaining Agreements: Safeguarding Workers' 
Rights?'' I commend you and the committee for examining the ``State of 
the Workplace.''
    By way of introduction, I was appointed by President George H.W. 
Bush, confirmed by the Senate and served as a Member of the National 
Labor Relations Board (``NLRB'' or ``Board'') from August 27, 1990 
until November 26, 1993. Prior to my NLRB service, I practiced labor 
law representing management. Before entering law school, I served four 
years as a U.S. Navy Supply Corps Officer and earned a Masters Degree 
in labor economics. Since leaving the NLRB, I returned to private 
practice. I am a Partner and Chair of the U.S. Labor and Employee 
Relations Law Practice in the global law firm of Baker & McKenzie LLP. 
I teach labor law as an adjunct faculty member at Northwestern 
University School of Law. I am a member of the Labor Relations 
Committee of the U.S. Chamber of Commerce and of the Labor Relations 
Special Expertise Panel of the Society for Human Resource Management. 
Today I am testifying in my personal capacity.
    This Hearing examines NLRB elections and a certified 
representative's ability to obtain a first contract by explicitly 
questioning whether workers' rights are protected in the process. The 
form of the question reflects claims from organized labor and their 
supporters--``Workers' Rights Under Attack,'' ``Middle Class at Risk,'' 
``A Human Rights Crisis,'' and a ``September Massacre.'' \1\ AOf 
course, workers' rights and the issues of elections and first contracts 
would be resolved/guaranteed differently were the proposed Employee 
Free Choice Act (``EFCA'') to become law.\2\
---------------------------------------------------------------------------
    \1\ Congressman George Miller, July 13, 2006; AFL-C10 Press 
Releases June 9, 2005, October 24, 2005, October 23, 2006, October 25, 
2007, March 27, 2008.
    \2\ S. 1041/H.R. 800, 110th Congress, 1st Session.
---------------------------------------------------------------------------
    Given the rhetoric and voluminous labor-generated press, it would 
be understandable to add a ``by-line'' to today's inquiry--``Lost in 
the Fog . . . Deliberately?'' Organized labor, as we know it, is 
fighting for its institutional life, to be the only form of worker 
voice in an adversarial relationship, and to recapture a density from a 
time not to return.\3\
---------------------------------------------------------------------------
    \3\ Andy Stern, ``Labor's New Deal,'' The Nation, April 7, 2008.
---------------------------------------------------------------------------
                   NLRB ELECTIONS AND EMPLOYEE RIGHTS

    Are workers' rights safeguarded in the NLRB election process? Yes. 
In fiscal year 2007, 2,439 RC and RM petitions were filed, 1,559 
elections were conducted, and unions won 54.3 percent of those 
elections, the same win rate as in 1970-1974. Elections were conducted 
in a median of 39 days. Only 13--or 1.1 percent--of the elections 
unions won were challenged by technical refusals to bargain.\4\
---------------------------------------------------------------------------
    \4\ NLRB Memorandum GC 08-01, December 5, 2007; Testimony of NLRB 
Chairman Robert Battista, Senate and House Committees, December 13, 
2007, p.5; see also, Testimony of former Member Charles Cohen, House 
Committee, February 8, 2007, pp. 10-13; Testimony of former Chairman 
Peter Hurtgen, Senate Committee, March 27, 2007, p.8; Fact Finding 
Report, Commission on the Future of Worker-Management Relations, May 
1994, p.81; Note, since the mid-1970s, the union win rate has been 
steady at or slightly above 50 percent, see Henry S. Farber and Bruce 
Western, ``Accounting for the Decline of Unions in the Private Sector, 
1973-1998,'' 22 Journal of Labor Research No. 3, Summer 2001, p. 467.
---------------------------------------------------------------------------
    The notable Goldberg, Getman and Brett study, ``Union 
Representation Elections: Law and Reality,'' studied 31 elections 
interviewed 1,000 employees and concluded that unlawful campaign 
tactics had no greater impact on employee voting behavior than lawful 
campaigning.\5\ However, Weiler's commentaries take issue with the 
limited sample size of the Guldberg, Getman and Brett study and argue 
that Board processes and remedies are ineffective.\6\ Weiler's ultimate 
complaint regarding ineffective remedies attacks H.K. Porter Co. v. 
NLRB, 397 U.S. 99 (1970), upholding the National Labor Relations Act's 
(``Act'') fundamental policy of the freedom of contract precluding the 
Board from compelling agreement to contract terms. 29 U.S.C. 158(d). 
Nevertheless, accepting the freedom of contract rule, Weiler argues for 
quickie elections and certification, increased use of 10(j) remedies, 
and including 8(a)(3) charges within the scope of 10(l) relief.\7\
---------------------------------------------------------------------------
    \5\ Russell Sage Fnd., 1976.
    \6\ Paul Weiler, ``Promises to Keep: Securing Workers' Rights to 
Self-Organization Under the NLRA,'' 96 Harvard L. Rev. No. 8 (June 
1983), pp. 1769-1827.
    \7\ Id.
---------------------------------------------------------------------------
    Andy Stern, International President of the Service Employees 
International Union, when asked about the Teamwork for Employees and 
Managers Act (an alternative to traditional labor organizations vetoed 
by the President Clinton) said: ``Employees' representatives should be 
elected. . . . If the employers want representatives of the workplace, 
let them be elected. That's the American way.'' \8\ So much for card-
based, pressure prone alternatives to a secret ballot.\9\
---------------------------------------------------------------------------
    \8\ Interview, PBS Online Newshour, May 14, 1996.
    \9\ Minority Views, House Report 110-23, 110th Congress, 1st 
Session, ``Employee Free Choice Act of 2007,'' pp. 51-59; Note, where 
card-checks experience coercion, there is a lesser likelihood of 
coercion with secret ballot votes, see Chris Riddell, ``Union 
Certification Success Under Voting Versus Card-Check Procedures: 
Evidence from British Columbia, 1978-1998, 57 ILR Review No. 4 (July 
2004), p. 498.
---------------------------------------------------------------------------
    Driving the quest for an ``over the shoulder/in-your-face'' card-
based alternative to the secret ballot is organized labor's 
longstanding, institutional angst--declining union density, a labor 
economist's measure of success or failure in organized labor's ability 
to gain representational rights. Private sector union density has 
steadily declined from a high of 34 percent in 1954.\10\ In 2007, 
organized labor represented 7.5 percent of the private sector 
workforce, up from 7.4 percent in 2006.\11\
---------------------------------------------------------------------------
    \10\ NBER Working Paper 6012, Richard B. Freeman, ``Spurts in Union 
Growth: Defining Moments and Social Processes,'' pp. 56-62.
    \11\ USDL 08-0092, ``Union Members in 2007,'' Table 3.
---------------------------------------------------------------------------
    The reported prospects for a return to higher union densities are 
dim, reflecting a variety of factors, most notably the changed 
structure of the economy--employment shifting away from sectors where 
unions were historically strongest.\12\ And, the more competitive an 
industry, the less likely it can sustain a sizeable union premium.\13\ 
Historically, American unions have grown during periods of 
extraordinary periods of upheaval--economic depression and war. Without 
the upheaval and spurts in growth, private sector density will only 
increase by bringing the union and nonunion growth rates into rough 
equality.\14\ For owners of capital to be indifferent between investing 
in the union and nonunion sectors, given the union cost premiums and 
resulting wealth transfers, such is unlikely.\15\
---------------------------------------------------------------------------
    \12\ Farber and Western, supra, p. 459; Barry T. Hirsch and Edward 
J. Schumacher, ``Private Sector Union Density and the Wage Premium: 
Past, Present and Future,'' 22 Journal of Labor Research, No. 3, 
(Summer 2001), p. 495.
    \13\ Hirsch and Schumacher, supra, pp. 495, 498, 510; Richard 
Vedder and Lowell Gallaway, ``the Economic Effects of Labor Unions 
Revisited,'' 23 Journal of Labor Research No. 1, (Winter 2002), p. 128; 
Michael L. Wachter, ``Judging Unions' Future Using a Historical 
Perspective: The Public Policy Choice Between Competition and 
Unionization,'' Institute for Law and Economics, Research Paper No. 03-
09; Barry T. Hirsch, ``Reconsidering Union Wage Effects: Surveying New 
Evidence on an Old Topic,'' Discussion Paper No. 795 (June 2003), p. 
33.
    \14\ Farber and Western, supra, p. 482; see also, Richard B. 
Freeman, supra, p. 28.
    \15\ Id.
---------------------------------------------------------------------------
    Despite these many factors and impediments to increasing union 
density, can union election success be improved on the margin by 
changes to the Board's election processes by enhanced safeguards for 
workers' rights? Perhaps. Internal Board workings can be studied, 
election cases exceeding the present 39 day median can be examined, and 
``lessons learned'' can be shared to the extent this is not already 
done. As to Regional Office and Board processing delays, consider 
making fully transparent on the Board's website the daily status of all 
C and R case matters including Board Member actions and inactions (One 
Member Only reports). And, to my knowledge, it has been 50 years since 
the Board's last investment in an outside comprehensive, consultant's 
study.\16\ This too may yield marginal improvements. But let's be 
clear--to suggest that the Board's secret ballot process and the 
applicable caselaw regarding campaign conduct is ``Neither Free Nor 
Fair'' and is a ``Subversion of Democracy'' is as disgusting as it is 
false.\17\
---------------------------------------------------------------------------
    \16\ House Report, 87th Congress, 1st Session, ``Administration of 
the Labor-Management Relations Act by the NLRB,'' (Pucinski Report 
1961), p. 72 referencing the McKinsey & Co., Inc. report.
    \17\ American Rights at Work Report, ``Neither Free Nor Fair--The 
Subversion of Democracy Under National Labor Relations Board 
Elections,'' Gordon Lafer, 2007.
---------------------------------------------------------------------------
    The current, calculated attack on the Board's election process was 
sponsored, in part, by a study funded by the U.S. Trade Deficit Review 
Commission updating prior research on the impact of capital mobility, 
plant closings and threats of plant closings on private sector union 
organizing campaigns.\18\ Based on interviews of union organizers from 
a sample of 407 Board certification elections during 1998-1999, in 
units of 50 or more eligible voters, plant closings and alleged threats 
of closings resulted in lower union election win rates.\19\ The unions 
involved filed fewer charges with the Board because: (a) they thought 
the case was not strong enough to win; (b) they wanted to avoid the 
delay where they thought they would win the election outright; (c) they 
thought their witnesses would not come forward; or (d) they viewed the 
remedy as insufficient.\20\ For these reasons, and based on comments of 
union organizers, card check recognition rather than Board elections 
and first contract arbitration rather than collective bargaining were 
recommended.\21\
---------------------------------------------------------------------------
    \18\ Kate Bronfenbrenner, ``Uneasy Terrain: The Impact of Capital 
Mobility on Workers, Wages, and Union Organizing.''
    \19\ Id. at 27.
    \20\ Id. at 32.
    \21\ Id. at 58.
---------------------------------------------------------------------------
    Interestingly, in an earlier study of 261 elections during 1986 and 
1987, the same researcher interviewed the corresponding union 
organizers but concluded only that the particular union tactics of 
representative leadership, personal contact, dignity and justice and an 
active presence used played an important role in determining election 
outcomes.\22\ Rather than call for labor law reform, the study 
concludes--``union organizing strategy and tactics matters a great deal 
in determining certification election outcomes.'' \23\
---------------------------------------------------------------------------
    \22\ Kate Bronfenbrenner, ``The Role of Union Strategies in NLRB 
Certification Elections,'' 50 ILR Review No. 2 (January 1997), pp. 198-
211.
    \23\ Id. at 211.
---------------------------------------------------------------------------
    Another ``studied'' attack on the Board's undermining of employee 
rights to organize evaluated 62 Chicago area elections in 2002 and 
interviews with 25 lead organizers and 11 anonymous employees.\24\ The 
findings report that 30 percent of the employers allegedly fired 
workers for engaging in union activities, 49 percent threatened to 
close or relocate, and 82 percent used consultants. Reportedly, unions 
were hesitant to file charges where evidence may be insufficient, the 
election date may be delayed, and make-whole remedies and/or 10(j) 
relief may be lacking.\25\
---------------------------------------------------------------------------
    \24\ Chirag Mehta and Nik Theodore, ``Undermining The Right to 
Organize: Employer Behavior During Union Representation Campaigns,'' A 
Report for American Rights at Work, an Affiliate Group of the AFL-C10, 
2005.
    \25\ Id. at 17.
---------------------------------------------------------------------------
    Importantly, the ``research methodology'' for these ``studies'' is 
now exposed.\26\ From a review of 11, 342 RC election cases filed 
between 2003 and 2005, 3,546 had a companion CA employer unfair labor 
practice filed. Of the CA charges, 2,008 were dismissed or withdrawn 
and of the reminder, 303--or 2.7 percent of the RC cases filed--
resulted in an offer of reinstatement.\27\ Of equal significance, the 
now famous 1983 Weiler ``finding'' that one in 20 pro-union employees 
was fired during union organizing campaigns, and the 2007 Schmitt and 
Zipperer ``finding'' of one in 76 were debunked by the 2008 Wilson 
research finding that less than one in 340 pro-union workers is fired 
during an organizational campaign.\28\
---------------------------------------------------------------------------
    \26\ J. Justin Wilson, ``Union Math, Union Myths,'' 2008.
    \27\ Id. at 6-7.
    \28\ Id; Paul Weiler, ``Promises to Keep: Securing Workers' Rights 
to Self-Organization under the NLRA,'' 96 Harvard L. Rev. No. 8 (June 
1983), pp. 1769-1827; John Schmitt and Ben Zipperer, ``Dropping the Ax: 
Illegal Firings During Union Election Campaigns,'' Center for Economic 
and Policy Research, 2007.
---------------------------------------------------------------------------
    What is interesting is that the purpose for the ``research,'' now 
discredited, attacking the Board's election process and calling for 
card-check, in lieu of secret ballot elections and interest arbitration 
for first contracts, rather than collective bargaining, is but ``old 
wine in a new bottle.'' The same demands, without the academy's 
overlay, were made straightforwardly in the 1961 Congressional 
Hearings--and rejected.\29\
---------------------------------------------------------------------------
    \29\ Pucinski Report, supra, p. 76.
---------------------------------------------------------------------------
    What the academic forays into the issue of Board election 
procedures teach is that publicly reported Board representation case 
data should be made more robust which, in turn, may silence the current 
attacks or perhaps, launch new ones. Publicly available representation 
case data should report time through each procedural stage to allow 
computation of mean, median, mode and range. Case numbering should be 
expanded to facilitate correlation between C and R matters of like 
union and employer components. And, Kochan's five basic questions 
should be reviewed by any researcher prior to initiating any study: (1) 
Is the research question framed in a way to yield useful policy 
information?; (2) Is the research design adequate to answer the 
questions of interest?; (3) Are the data analyses appropriate for the 
research design?; (4) Are conclusions consistent with the result and 
can the policy recommendations be derived from their conclusions?; and 
(5) How much weight should the results and recommendations be given in 
shaping law and agency policy? \30\
---------------------------------------------------------------------------
    \30\ Thomas A. Kochan, ``Legal Nonsense, Empirical Examination and 
Policy Evaluation,'' 29 Stanford, L. Rev. 1115 (1976).
---------------------------------------------------------------------------
    Having addressed and rejected the proffered evidence to attack the 
Board's election process, what is left are the polemics raised by EFCA 
regarding employee free choice. Choice requires information to process 
to decision.
    The decision whether or not to support a union depends 
fundamentally on three questions: Are the conditions within the plant 
unsatisfactory? To what extent can the union improve on these 
conditions? Will representative by the union bring countervailing 
disadvantages as a result of due payments, strikes, or bitterness 
within the plant? \31\
---------------------------------------------------------------------------
    \31\ Derek C. Bok, ``The Regulation of Campaign Tactics in 
Representation Elections Under the National Labor Relations Act,'' 78 
Harvard L. Rev. p. 49 (1964).
---------------------------------------------------------------------------
    Free choice requires the absence of pressure or coercion.\32\ Card 
check provides neither. Unions want to be the sole provider of 
information, if any, and, stand next to employee to extract the signed 
card. It is EFCA that fails to safeguard employee rights.\33\
---------------------------------------------------------------------------
    \32\ Id. at 46.
    \33\ Minority Views, House Report 110-23, 110th Congress, 1st, 
supra, pp. 51-59.
---------------------------------------------------------------------------
      INITIAL COLLECTIVE BARGAINING AGREEMENTS AND EMPLOYEE RIGHTS

    Are workers' rights safeguarded while the institutional parties--
union and employer--meet at reasonable times and negotiate an initial 
agreement in good faith? Yes, despite claims by researchers that only 
56 percent of union election victories result in a first contract or 
only 20 percent of organizing drives end up with a labor agreement.\34\
---------------------------------------------------------------------------
    \34\ John Paul Ferguson, ``The Eyes of the Needle: Surviving Union 
Recognition Campaigns,'' MIT Institute for Work and Employment Research 
Working Paper, April 2006; ``Modernizing Labor Law,'' The Boston Globe, 
June 21, 2007; Fact Finding Report, supra, p. 73; Micah Berul, ``To 
Bargain or Not to Bargain Should Not Be the Question. Deterring Section 
8(a)(5) Violations in First-Time Bargaining Situations through a 
Liberalized Standard for the Award of Litigation and Negotiation 
Costs,'' 18 The Labor Lawyer No. 1 (Summer 2002), p. 28.
---------------------------------------------------------------------------
    Cooke's study of 118 Indiana cases where unions won Board elections 
in 1979 and 1980 found a greater likelihood to obtaining first 
contracts when firms pay wages well above the industry average, when 
skilled national union representatives participate in negotiations, 
when bargaining units are larger, and when election victories are won 
with larger margins.\35\ Detracting from achieving first contracts are 
NLRB delays in resolving post-election objections and challenges, post-
election employer discrimination, and employer refusals to bargain.\36\ 
Notably, strikes played a role in 23 percent of negotiations ultimately 
resulting in agreement and in 26 percent of failed negotiations.\37\
---------------------------------------------------------------------------
    \35\ William N. Cooke, ``The Failure to Negotiate First Contacts: 
Determinants and Policy Implications,'' 38 ILR Review No. 2 (January 
1985), p. 176.
    \36\ Id.
    \37\ Id.
---------------------------------------------------------------------------
    Perhaps the most debated discussion of first contract negotiations 
is Weiler's study testing his hypothesis on the negative effect of 
deficiencies in the law.\38\ In a study of 271 election certifications 
in units of 100 employees or more between 1979 and 1981, Weiler found 
172--or 63 percent--achieved a first contract. Weiler rejects interest 
arbitration as a remedy for bargaining impasse because it collides with 
the principle of free collective bargaining, but he would consider it 
as a special remedy for failure to bargain.\39\ Weiler acknowledges the 
Supreme Court's emphasis on the fundamental policy of freedom of 
contract and the Act's admonition that agreement to a proposal or the 
making of a concession is not required.\40\
---------------------------------------------------------------------------
    \38\ Paul Weiler, ``Striking a New Balance: Freedom of Contract and 
the Prospects for Union Representation,'' 98 Harvard L. Rev. No. 2 
(December 1984), pp. 377, 404, 408-410. For a stark contrast, see 
Richard A. Epstein, ``A Common Law for Labor Relations: A Critique of 
the New Deal Labor Legislation,'' 92 Yale L.J. No. 8 (July 1983) pp. 
1357-1408; Julius G. Getman and Thomas C. Kohler, ``The Common Law, 
Labor Law, and Reality: A Response to Professor Epstein,'' 92 Yale L.J. 
1415-1434 (1983).
    \39\ Id.
    \40\ Id. at 360; 29 U.S.C. 158(d).
---------------------------------------------------------------------------
    In response to Weiler, LaLonde and Meltzer argue that estimates of 
employers' refusals to bargain first contracts are too high and reject 
the ``rogue employer'' &esis.\41\ Their research of random samples of 
Board decisions from 1955 and 1980 disputes the NLRB General Counsel's 
1978 claim that 90 percent of 8(a)(3) charges arise out of organizing 
campaigns and that 1 in 20 union supporters are discharged during a 
campaign.\42\ Rather, many such discharges occurred in established 
bargaining relationships.\43\ Notably, LaLonde and Meltzer argue that 
Board statistics fail to identify the labor relations contexts out of 
which actual and alleged violations arise to assess refusals to bargain 
first contracts.\44\ Moreover, their research concluded that only two 
of the then existing five studies estimating first contract success 
were comparable finding a success rate range of 72-77.65 percent.\45\
---------------------------------------------------------------------------
    \41\ Robert L. LaLonde and Bernard D. Meltzer, ``Hard Times for 
Unions: Another Look at the Significance of Employer Illegalities,'' 58 
U. Chicago L. Rev No. 3 (Summer 1991), pp 956, 965.
    \42\ Id. at 986.
    \43\ Id.
    \44\ Id. at 1007.
    \45\ Id. at 1013.
---------------------------------------------------------------------------
    The question of whether employee rights are protected relative to 
initial collective agreements implicitly suggests that failure at 
obtaining first contracts violates employee rights. But the Act does 
not guarantee or mandate contract outcomes.
    When the employees have chosen their organization, when they have 
selected their representatives, all the bill proposes to do is to 
escort them to the door of the employer and say, ``Here they are, the 
legal representatives of your employees.'' What happens behind those 
doors is not inquired into, and the bill does not seek to inquire into 
it.\46\
---------------------------------------------------------------------------
    \46\ Archibald Cox, ``The Duty to Bargain in Good Faith,'' 71 
Harvard L. Rev. No. 8 (June 1958), p. 1402.
---------------------------------------------------------------------------
    Determining initial contract outcomes is suspect given the lack of 
available and relevant data. I recommend that the Board engage a 
consulting firm or a government research agency and initiate a study 
mindful of all parameters--types of petitions and charges, timing 
through each decisional stage and relatedness between and among 
petitions and charges.\47\ Survey methodology and data must be public 
and available for independent research and assessment.
---------------------------------------------------------------------------
    \47\ Id. at 1010.
---------------------------------------------------------------------------
    Apparent from all Board-related studies is that data selection, 
data availability and methodologies used to analyze Board case data 
universally result in limited and questionable findings and 
conclusions. Future research must give special attention to the impact 
of the NLRB General Counsel's First Contract Bargaining Initiative and 
the use of 10(j) injunctive relief and related special remedies in 
future Board orders.\48\
---------------------------------------------------------------------------
    \48\ NLRB Memorandums GC 06-05, 06-07, 07-01 and 07-08.
---------------------------------------------------------------------------
    Additional remedies of the kind contemplated in EFCA would require 
amending 10(c) of the Act. 29 U.S.C. 160(c). The Board is not 
empowered to award punitive damages.\49\ Furthermore, any such 
expansion of remedial authority would raise due process concerns given 
the current absence of pre-hearing discovery and power to subpoena. 
And, rectifying the due process issues will inevitably lead to further 
delays in dispute resolution, election scheduling, and/or first 
contracts. The recent trend for states to intrude into the arena of 
labor law is also problematic raising the specter of conflicting 
rigidities, inflexibilities and costs imposed on employers and market 
competitiveness.\50\
---------------------------------------------------------------------------
    \49\ ``To Bargain or Not to Bargain Should Not Be the Question. 
Deterring Section 8(a)(5) Violations in First-Time Bargaining 
Situations through a Liberalized Standard for the Award of Litigation 
and Negotiation Costs,'' supra at p.38; Consolidated Edison Co. v. 
NLRB, 305 U.S. 197, 235-236 (1938); Phelps Dodge Corp. v. NLRB, 313 
U.S. 177, 194 (1941); Local 60, Carpenter's v. NLRB, 365 U.S. 651, 655 
(1961).
    \50\ Paul M. Secunda, ``Towards the Viability of State--Based 
Legislation to Address Workplace Captive Audience Meetings in the 
United States,'' 29 Comparative Labor Law & Policy J. No. 1 (2007); see 
also Chamber of Commerce of the U.S. v. Brown, 463 F. 3rd 1076 (9th 
Cir. 2006), U.S.S.C. No. 06-939; Samuel Estreicher, ``The Dunlop Report 
and the Future of Labor Law Reform,'' CATO Review No. 1 (1995); Samuel 
Estreicher, ``Labor Law Reform in a World of Competitive Product 
Markets,'' 69 Chicago-Kent L. Rev. 3-46 (1993).
---------------------------------------------------------------------------
    To do anything to force first contracts, including interest 
arbitration, contravenes the Act and destroys freedom of contract. It's 
hard to imagine such a revolutionary outcome in civil law. Even Weiler, 
a pro-Canadian labour law admirer, acknowledges that ``if the cause of 
union decline is rejection by American workers of the institution, 
there is nothing that the law can or should do about that verdict.'' 
\51\ ``The decline of unions is largely due to economic pressures that 
the law can hardly control or withstand.'' \52\ The explanation for 
union decline ``lies primarily in natural market forces: structural 
changes in the American economy, increased domestic and foreign 
competition; and, yes, even increased employee opposition to private 
unionization.'' \53\
---------------------------------------------------------------------------
    \51\ ``Hard Times for Unions: Challenging Times for Scholars,'' 
supra, p. 1018; In contrast, see Kenneth G. Dau-Schmidt, ``A Bargaining 
Analysis of American Labor Law and the Search for Bargaining Equity and 
Industrial Peace,'' 91 Michigan L. Rev. No. 3 (December 1992) pp. 419-
514.
    \52\ Keith N. Hylton, ``Law and the Future of Organized Labor in 
America,'' Boston University School of Law, Working Paper No. 03-14 
(2003).
    \53\ Leo Troy, ``Market Forces and Union Decline: A Response to 
Paul Weiler,'' 59 Univ. of Chicago L. Rev. No. 2 (Spring 1992) at p. 
682.
---------------------------------------------------------------------------
                    SAFEGUARDING ALL WORKERS' RIGHTS

    According to one critic, ``labor laws . . . have become nearly 
irrelevant, to the vast majority of private sector American workers.'' 
\54\ Whether by globalization, structural economic change, increased 
employer resistance given decreased union density and corresponding 
economic leverage, unions' own complacency, or traditional adversarial 
unionism, 92.5 percent of the private sector workforce is not part of 
the legislated structure for industrial peace.\55\
---------------------------------------------------------------------------
    \54\ Cynthia L. Estlund, ``Ossification of American Labor Law,'' 
102 Columbia L. Rev. 1527 (2002) at p. 1528.
    \55\ Id.
---------------------------------------------------------------------------
    Unions cannot survive if their employer ``hosts'' fail, yet 
employers can thrive without unions.\56\ Given this economic reality 
for standoff, must American workers be left with--``It is what it is?'' 
Is the choice to be all-or-nothing--full-fledged representation in an 
adversarial top-down paradigm or no collective representation? \57\ The 
Act's 8(a)(2) prohibition on ``any organization of any kind'' which 
``deals with'' employers denies millions of fellow citizens a 
constructive voice at work.\58\
---------------------------------------------------------------------------
    \56\ Id.
    \57\ Id.; see also, Jeffrey M. Hirsch and Barry T. Hirsch, ``The 
Rise and Fall of Private Sector Unionism: What Next for the NLRA?'' 
Discussion Paper No. 2362 (2006).
    \58\ Electromation, Inc., 309 NLRB 990 (1992); enf'd, 35 F. 3d 1148 
(7th Cir. 1994).
---------------------------------------------------------------------------
    Traditional union governance regularizes and codifies worker tasks 
within a top-down command structure. In contrast, modern workplaces 
typically require interaction and two-way communications between 
workers and supervisors, accompanied by the use of bottom-up worker and 
managerial discretion that takes advantage of site-specific 
information. In contemporary workplaces, job hierarchies are often not 
clear-cut and worker decision-making is essential at most levels.\59\
---------------------------------------------------------------------------
    \59\ ``The Rise and Fall of Private Sector Unionism: What Next for 
the NLRA?'' supra, p. 9.
---------------------------------------------------------------------------
    Traditional unionism under the act serves as bargaining muscle in 
an adversarial model.\60\ Even considering the assertion that 53 
percent of the nonunion workforce want traditional unionism, 47 percent 
are left with nothing under the Act.\61\ Certainly the 92.5 percent of 
the private workforce who are not unionized are not well served by the 
current system offering the choice of confrontationalism or nothing but 
rare, random opportunities for worker voice and participation.\62\
---------------------------------------------------------------------------
    \60\ Bruce E. Kaufman, ``The Two Faces of Unionism: Implications 
for Union Growth,'' 23rd Economics Conference, Middlebury College 
(2002).
    \61\ Richard B. Freeman, ``Do Workers Still Want Unions? More than 
Ever,'' EPI Briefing Paper (2007); Richard B. Freeman and Joel Rogers, 
What Workers Want, Cornell University Press, 1999.
    \62\ ``Private Sector Union Density and Wage Premium: Past, 
Present, and Future,'' supra, pp. 11-13.
---------------------------------------------------------------------------
    The Dunlop Commission's first goal for the 21st century workplace 
was to ``[e]xpand coverage of employee participation and labor-
management partnerships to more workers, more workplaces, and to more 
issues and decisions.\63\ Labor policy and the Act should be modernized 
to offer worker/citizens what they want and what the economy needs.\64\ 
The Teamwork for Employees and Managers Act would have made this 
positive adjustment. Unfortunately, it was vetoed by President 
Clinton.\65\
---------------------------------------------------------------------------
    \63\ ``The Dunlop Commission on the Future of Worker-Management 
Relations--Final Report,'' (1994), p. 20.
    \64\ Thomas A. Kochan, ``Updating American Labor Law: Taking 
Advantage of a Window of Opportunity,'' 28 Comparative Labor Law & 
Policy J. 101, 113 (2007).
    \65\ Senate Report 105-12, 105th Congress, 1st Session, ``Teamwork 
for Employees and Managers Act of 1997.''
---------------------------------------------------------------------------
                              CONCLUSIONS

    The dramatically reduced role played by unions and collective 
bargaining in the United States private economy is hardly attributable 
solely or even primarily to the workings of the legal regime.\66\
---------------------------------------------------------------------------
    \66\ James J. Brudney, ``Isolated and Politicized: The NLRB's 
Uncertain Future,'' 26 Comparative Labor Law & Policy J. 221 (2005).
---------------------------------------------------------------------------
    Yes, workers' rights are protected in the NLRB Representation 
Election process. And yes, workers' rights are protected during initial 
contract bargaining recognizing the fundamental policy of the freedom 
of contract.
    The current legal regime is based on a model of the employment 
relationship that poorly reflects modern conditions. . . . [T]he focus 
of legislative efforts should be on lifting existing restrictions that 
limit representational options and encourage adversarial contests.\67\
---------------------------------------------------------------------------
    \67\ ``The Dunlop Report and the Future of Labor Law Reform,'' 
supra.
---------------------------------------------------------------------------
    This concludes my prepared testimony. I thank you again for 
directing attention to the issues of the modern workplace. I look 
forward to discussing my comments in greater detail during the question 
and answer period.

    Senator Harkin. Thank you, Mr. Raudabaugh and Dr. Lafer. 
Thank you very much for your testimonies.
    Well, Mr. Raudabaugh, Mr. Lafer's report cites a number of 
management journals which encourage employers to avoid NLRB 
elections at all costs.
    Do you believe that avoiding an election is the best 
strategy for employers that don't want unions?
    Mr. Raudabaugh. The rhetoric and the union avoidance 
industry is mirrored by materials put out by most of the 
international unions on their web pages and teachings at the 
George Meany College for Labor and believe me, sir, the 
rhetoric on union avoidance or get 'em, kill 'em, we'll win, 
that stuff is everywhere on both sides. So, it is what it is 
there.
    Senator Harkin. Well, again I'm just getting back to the 
point that if there's a number of management journals that 
encourage employers to avoid the elections at all costs, I just 
wonder if that's--you know, I know there's rhetoric on both 
sides.
    I mean, I've been around quite awhile, but I'm just saying 
that, on the one hand, the employers don't want a card check, 
they say we can have elections, but on the other hand, all of 
the management journals and stuff that the employers get tell 
them to avoid an election at all costs.
    Mr. Raudabaugh. Well, and then, on the other side, we have 
problems with the decision amendments that doesn't allow 
remedies for union violence which I certainly have experienced 
in prior representations.
    So, once you get off into this area, believe me, all sides 
in the extreme have a great deal of rhetorical weapons at their 
use. To avoid election at all costs doesn't make sense to me 
any more than it makes sense to me to preclude employees from 
having group meetings with their employer to talk about things 
that are of interest to them and to the employer in the 
workplace setting.
    Section 8(a)(2) cut that out. That makes no sense to me. 
Most people today are skilled and educated. Not everyone works 
in a foundry. I respect that. Not everyone works in an auto 
plant on an assembly line. I respect that. Some people, as I 
should have done, stayed growing corn, but the fact of the 
matter is not every workplace is a factory and to stifle 92.5 
percent of workers in this country from being able to just 
visit and talk and dream up ideas to make things better in the 
workplace because they don't want to pay dues or they don't 
want to be in a very adversarial standoff between unions and 
management, it makes no sense.
    We should have all of these available. People want unions, 
great. People want a different type of approach, great. We 
shouldn't make the choice unitary like that.
    Senator Harkin. Well, Dr. Lafer, do you have any idea how 
many illegal firings happen during elections? I hear there's a 
lot. Do we have any data on that?
    Dr. Lafer. We do. As Chairman Schaumber and other people 
have noted, the NLRB unfortunately does not track firings or 
other unfair labor practices according to whether they occurred 
in an election context or not.
    Senator Harkin. I raised that issue earlier.
    Dr. Lafer. So at that point, we don't have clear data. I 
submitted a Freedom of Information Act for the Nation as a 
whole over a 5-year period and analyzed that data.
    Again you need to make assumptions. I used the most 
conservative assumptions possible about the perception of 
firings that take place in an election context, which is I used 
the assumptions advocated by business side analysts. According 
to my analysis, one in every 17 eligible voters, potentially 
eligible voters in NLRB elections is financially penalized, 
which means either fired, demoted, suspended or something else 
that results in a back pay remedy.
    It's not 1 of every 17 union supporters. It's 1 of every 17 
potentially eligible voters and these are only the cases that 
have been adjudicated to the point that the people actually 
collected back pay.
    If you compare the rate of NLRB violations to the rate of 
FEC violations in Federal elections, what it looks like is that 
NLRB elections are 3,500 times dirtier than Federal elections.
    Now, as anybody knows, any number, anybody who's looked at 
numbers knows that any number is only as good as the 
assumptions beneath it. Everybody can play with numbers. 
Suppose I'm wrong, not only wrong but wrong by an entire order 
of magnitude. That would mean that NLRB elections are only 350 
times dirtier than Federal elections.
    There are in any given year between 20,000 and 30,000 
people who collect back pay remedies, adjudicated to the point 
where they collect them for having been financially penalized 
for being on the wrong side.
    If Federal elections were run by this standard, in the 2004 
presidential election cycle, we would have had 7.5 million 
Americans who either lost their jobs or were financially 
penalized for backing the wrong candidate and we would have 
thought we were living in East Germany or the old Soviet Union 
and we would be right because that is the level of fear that 
pervades the workplace in these elections.
    Mr. Raudabaugh. I must respond. This must be why I chose to 
go to law school after getting my Master's degree in Labor 
Economics and Econometrics.
    There's a difference between the classroom and the real 
world. I'm sorry. First of all, data. You can take data and 
samples and draw conclusions. The question here is, as we've 
even heard, well, I had to make adjustments, I had to make 
assumptions, and then to compare data and findings based on 
assumptions and corrections and adjustments and then compare it 
to things like democracy in Iraq or making these kinds of wild 
and rhetorical comparisons is not helpful.
    What will be helpful to every legitimate academic and every 
lawyer and every citizen and every elected representative is a 
study based on data that we all begin with. It's accurate and 
it's complete.
    The NLRB data over history has been represented in these 
same tables, they haven't been challenged before and that's not 
a negative, to present all of the data and correlate it between 
unfair labor practice events that occur in a particular time 
period between the filing of the petition and the election and 
we can create other time periods.
    We should have a commission, and I certainly volunteer, 
let's have a discussion on the specific data that we need and 
then the Board's general counsel's office and our unit can 
begin the process of going forward from day one with data and 
you know what? In 1 year, we'll take 1 year's data and live 
with the findings, but to take data from Tama County, Iowa, 
over 1\1/2\ years ago and make corrections and adjustments and 
then make a conclusion is not necessarily representative of the 
United States of America, and this is exactly what academics 
do.
    My paper, please read it and all the footnotes. Every one 
of these studies is forced to begin with data that is not the 
kind of strong material that we would want to work with and 
then it's limited to samples in uniquely geographic areas and 
then we're going to come up and remodel labor law for the 
entire country. That makes no sense to me.
    Senator Harkin. My problem, Mr. Raudabaugh, just to respond 
from my standpoint, as I pointed out to Mr. Schaumber, the 
latest reporting is 40 tables, 18 charts of labor violations, 
but no where does it tell me how many violations happen during 
elections. So, I don't have that data.
    Mr. Raudabaugh. Exactly, and we need to get it, and we need 
to get it quickly, and we need to start this process. It seems 
to me that a group of people could volunteer to sit down with 
the necessary people at the Board, good econometricians, 
certainly my classmate who now is a Ph.D. and teaches at 
Princeton, Hank Farber, Henry Farber, I recommend him, 
recommend many people to sit down and let's develop exactly the 
data we need, what do we want, and then have the Board begin 
collecting and coding their data, all transparent, all 
available on the website, so every professor on earth can spend 
the next year writing and writing and writing, but all the data 
will be the same. I think we could all live with the results 
then.
    Senator Harkin. Dr. Lafer.
    Dr. Lafer. You know, I'm not going to get into any kind of 
tit for tat here. My work has been out in public. I've yet to 
have anybody say this specific thing is false. I would welcome 
it if anybody could do so.
    The 20,000 to 30,000 people collecting back pay remedies, 
that's data from the NLRB. That's not mine or anybody else's. I 
can tell you that I know many union organizers. When somebody 
goes--a union organizer goes out and talks to a group of 
workers about organizing a union, the first thing that workers 
ask is is there a chance I'm going to get fired? Every honest 
organizer has to say yes, it's likely that somebody here is 
going to get fired in any significant size unit.
    Again, if we have imagine running campaigns for Senate or 
Congress like this, where you go out and ask somebody to put 
lawn signs in their yard or make financial contributions to a 
campaign and they say is there a chance if I make a donation to 
your campaign or put your sign in my yard, I could lose my job 
and you have to say yes, if you're honest, you know, some 
people could squeak by and win, but this is not an American 
system of democracy.
    I'm not here to engage in rhetoric. I'm here to talk about 
the goal of the Wagner Act to introduce a measure of American 
democracy into the workplace and we need to be serious about 
what those standards are.
    Mr. Raudabaugh. Certainly unions should not go around and 
collect license plate numbers and then find out who they belong 
to and engage in home visits and other terror that's reported 
in cases.
    We're going to get nowhere if we're going to put up the 
horror stories on how awful management is and the horror 
stories of how awful----
    Dr. Lafer. 30,000----
    Mr. Raudabaugh [continuing]. Unions are.
    Dr. Lafer [continuing]. People a year is not horror 
stories. There's an enormous number that's in Federal data.
    Mr. Raudabaugh. Let's get real data from the Board----
    Dr. Lafer. That is real data.
    Mr. Raudabaugh [continuing]. And give it to the 
policymakers.
    Dr. Lafer. That's not challenge data.
    Mr. Raudabaugh. I'm sorry.
    Dr. Lafer. That's not contested data.
    Senator Harkin. I'm sorry. What did you say, Doctor?
    Dr. Lafer. 30,000 people a year collecting back pay 
remedies for having been illegally either fired, demoted, 
discriminated or some other way punished that resulted in them 
losing pay. That's not mine. That's not an academic number. 
That's the Board's number. It varies from 20,000 to 30,000 in 
each of the last few years of cases adjudicated to the point 
that people collect back pay remedies, and then there's the 
debate how many of those happened in election and how many of 
those not in election. Significant percentages happen in each, 
but that is an enormous number and that's not a contested 
number.
    Mr. Raudabaugh. We can also look at the data and the 
material that will flow from a variety of RICO actions that 
have taken place and are underway to look at approaches to 
bringing down management, to force them to recognize unions by 
doing things that are unlawful under very different statutes 
and laws as well.
    I don't really think we're going to get--nothing positive 
here. No one wants to--I don't want to go off on unions or have 
someone go off on management. I'm just a citizen. I would like 
us to have the data so you folks can ask the questions and get 
answers to your questions and we don't have the data.
    Dr. Lafer. I guess the last thing I'd say is everybody's 
for data. Of course there's agreement we should get better 
data, but we have a lot of experience with this and there are 
millions of American workers who are waiting for this system to 
work better. We should get better data, but we don't need to 
wait to get better data to know what is fundamentally wrong 
with this law, even when it works completely legally.
    Mr. Raudabaugh. There are tens of millions of people who 
would not make the choice in the first place because they're 
now in new types of jobs with new skills and doing things where 
that particular model is not of interest.
    Even if you take the reported materials on the AFL-CIO 
website that various academics have done studies on attitudinal 
views of the union and they say 54 percent of American citizens 
want a union but can't get one, well, that certainly leaves 46 
percent of Americans that don't want a union.
    Senator Specter. I'm beginning to think you fellows are not 
going to agree.
    Dr. Lafer. I think we agree on that.
    Senator Specter. Is it about my turn?
    Senator Harkin. The Chair recognizes the Senator.
    Senator Specter. You've had your turn, now it's my turn.
    Dr. Lafer. Yes, sir.
    Senator Specter. Mr. Raudabaugh, in a speech you gave 
before the Federal Society on March 13, 2007, you said that 
secret ballot elections together with a freely informed 
workforce are essential to workplace democracy, but you say 
that there have to be laboratory conditions for a free and fair 
secret ballot.
    What are these laboratory conditions and how do we get 
them?
    Mr. Raudabaugh. The laboratory condition is a term the 
Board has used for a very long time and, of course, what we try 
to do under Board law is allow anyone who feels that there has 
been improper tactics used during the period leading up to the 
election to file either unfair labor practices, if it's a very 
toxic kind of behavior, or to file objections to the election, 
saying that they felt that their space had been intruded----
    Senator Specter. But they did not have laboratory 
conditions?
    Mr. Raudabaugh. That they were being pushed or shoved or 
being intruded on in terms of allowing them to make a fair----
    Senator Specter. So, how do you suggest we move to get 
these laboratory conditions?
    Mr. Raudabaugh. Well, actually, that's the Board process as 
it stands, and one can attempt to rectify a bad situation by 
filing charges or objections, getting a rerun election, and in 
the worst case, the Board does have the authority to issue a 
Gissle bargaining order and require the parties to proceed to 
bargain if the tactics used were really appalling.
    Senator Specter. Professor Lafer, in your written testimony 
before the House of Representatives, February 8, 2007, you say, 
``Research shows that in a typical campaign, most employees 
never even have a single conversation with a union 
representative.''
    What's your empirical basis? What research shows that?
    Dr. Lafer. That's from a study done by Dr. Kay 
Bronfenbrenner, who's a professor at Cornell University, who 
did a study of elections, I believe it was in units of 50 
employees or more, and that basically because pro-union 
employees where the union gets the list of contact information 
for employees and that because under law it says name and 
address but the common practice of--when you run into anti-
union employers is to give name and address but not apartment 
number.
    Senator Specter. Well, do you know what the empirical basis 
is, what the----
    Dr. Lafer. Yes, it was a statistically----
    Senator Specter. Let me finish the question.
    Dr. Lafer. Excuse me. I'm sorry.
    Senator Specter. My question started out to be do you know 
what the empirical basis was to come to such a sweeping 
conclusion that most employees never have a single conversation 
with the union representative?
    Dr. Lafer. It was a statistically significant study of 
units of 50 employees or more.
    Senator Specter. What kind of--it would have to be a 
massive study to come to such a sweeping conclusion, sweeping 
generalization like that.
    Dr. Lafer. I would be happy to get the study and provide it 
to your staff, but I can tell you that the only studies that I 
have ever looked at or have ever talked about are things that 
are statistically significant which means the sample size is 
large enough to draw statistical conclusions from it. It is not 
a skewed sample. It is not an anecdotal sample.
    Senator Specter. How big's the sample have to be to have 
that profundity?
    Dr. Lafer. I believe in the thousands, but I'm happy to get 
you those details.
    Senator Specter. Okay. I would like that. Mr. Raudabaugh, 
you talked about the option of confrontational or nothing. What 
do you mean by that?
    Mr. Raudabaugh. The academic research, the people mentioned 
here, Kochan, Bronfenbrenner, go down the list, they're all in 
the cites in my paper, acknowledge that what we created in 1935 
was a system of confrontational representation. The union comes 
in, it represents in bargaining, bargaining just like buying a 
house or whatever. I want 50 cents more, but we can't, back and 
forth, back and forth.
    The system is us versus you, labor-management or 
management-labor, however you see it, and what we're looking at 
and what we were hoping for and what I pray for is simply 
making an adjustment among several others you have mentioned 
today that I think are good and go back and get 8(a)(2) 
corrected and allow at least those people who choose not to 
join a union in workplaces that are different today and 
wouldn't pick a union under any circumstances and the 
literature suggests----
    Senator Specter. Excuse me. You've made the point and I 
don't have much time.
    Mr. Raudabaugh. Okay. Sorry.
    Senator Specter. Dr. Lafer, do you think there's any merit 
in what Mr. Raudabaugh has suggested about the consultants and 
having some outside agency come in and take a look at what the 
NLRB has--outside consultants come in and take a look at what 
the NLRB has done and how they're functioning?
    Dr. Lafer. Like collecting better data, I think it's a good 
but marginal improvement. If the system works perfectly, 
according to its laws, it works like elections that we don't 
allow for voters any place else in the world. I think that's 
the fundamental problem, that until that is changed, yeah, we 
can make marginal improvements----
    Senator Specter. You don't think the consultants would 
amount to much?
    Dr. Lafer. I don't, no. No, sir.
    Senator Specter. A final question for you, Mr. Raudabaugh. 
You talk about due process requiring prehearing, discovery, 
subpoenas. You talked about Article 3 court. That would really 
provide an enormously more complex mechanism which would 
certainly result in very considerable delay, wouldn't it?
    Mr. Raudabaugh. That's the problem.
    Senator Specter. Talking about discovery.
    Mr. Raudabaugh. That's the big negative, but on the--no 
question about it. On the other hand, if you're going to listen 
to people, they cherrypick what they want and we want this, we 
want that, and we want more penalties, we want this, we want 
that.
    You know, to my knowledge, I think that you don't convert a 
restorative remedial structure into one that's punitive if 
you're not going to grant due process.
    Senator Specter. Are you seriously serious about suggesting 
that as an alternative to the present system?
    Mr. Raudabaugh. Yes, actually, after my term on the Board, 
I gave a speech at the 50th Anniversary of the Industrial 
Relations Research Association in Philadelphia, and I made that 
suggestion and for a variety of reasons.
    Senator Specter. Did you ever press the Board to have some 
consultants and do the kind of a study that you have 
articulated here today when you were a member of the Board?
    Mr. Raudabaugh. Yes.
    Senator Specter. No results?
    Mr. Raudabaugh. I don't think I heard the question. I'm 
sorry.
    Senator Specter. Well, you already answered it. When you 
were on the Board, did you ever suggest to your other members--
--
    Mr. Raudabaugh. Oh.
    Senator Specter [continuing]. To undertake the kind of 
studies that you're recommending here today?
    Mr. Raudabaugh. When I was on the Board, I was trying to 
get the cases out and we got out over 1,100 cases a year, 
publicly reported cases.
    Senator Specter. Oh, I know you did a great job when you 
were on the Board.
    Mr. Raudabaugh. Yes, sir.
    Senator Specter. But what I want to know is, when you had 
that position of power, did you ever make these suggestions 
that you're making here today?
    Mr. Raudabaugh. No, because simply I didn't think about it 
because there wasn't the outcry at that time about all the 
statistical material and it didn't occur to me.
    Senator Specter. Thank you very much, Mr. Raudabaugh. Thank 
you, Dr. Lafer.
    Mr. Raudabaugh. Thank you.
    Senator Specter. Thank you, Mr. Chairman.
    Senator Harkin. Thank you, Senator Specter. Well, again, 
just in closing, Mr. Raudabaugh, you know what the Employee 
Free Choice Act bill is. Just briefly, would you think that 
would be a step in the right direction to help or not? The card 
check where they check off the card and then they would----
    Mr. Raudabaugh. Well, there's two--certainly two prongs 
that are a problem. One is the cram-down contract by some 
outside professor telling you I'm picking this term, this term, 
the interest arbitration is unacceptable, and then the second 
point, the penalties attached on the issues I just discussed 
with Senator Specter and then we're down to the simple process 
of cards as an alternative.
    If we apply the same rules for prohibiting coercion and 
threats and the solicitation of the cards, right, and we have 
proof that they're solicited in a very neutral way, then that's 
one thing.
    You know, in terms of having the ability to challenge that 
is critical, so that if you had card check only from the EFCA 
bill, you should have the right then to have employees come 
forward and require an election if there's any evidence at all 
of untoward behavior in the gathering of the cards.
    Senator Harkin. Dr. Lafer, same question about the Employee 
Free Choice Act, whether that would be a----
    Dr. Lafer. The Employee Free Choice Act is a modest but 
important step in the right direction. If you would say let's 
make--let's forget about card check, let's make NLRB elections 
work the way elections for the Senate or the presidency work, 
you, would have to say no corporation can say anything to its 
employees about how they should vote, union employees have to 
have equal rights to circulate leaflets as management does, 
nobody can be forced to attend a meeting, organizers have to 
have access to the property.
    I would support that, but that is a much more sweeping 
vision than by comparison to that the Employee Free Choice Act 
is a much more modest agenda, but I do think that it goes in 
the right direction. There are now--depending on which poll, 
which number you believe, between 25 and 60 million American 
workers say they wish they had a union but they don't have one. 
Only half a million a year get--are newly organized into unions 
and so there's a representation gap of that difference and the 
25 million number is the business lobby's number.
    So, even if you take that low number, that's 24.5 million 
people in America saying we wish we had a union and we don't 
have one. The nature of this election system, I think, is one 
of the primary reasons why we have that representation gap. I 
think this would be a modest but important step toward 
addressing that.
    Mr. Raudabaugh. If we also address the multiple millions of 
people who know they don't want a union but would like the 
freedom in this country to talk in groups with employers about 
a variety of issues would be helpful, too.

                     ADDITIONAL COMMITTEE QUESTIONS

    Senator Harkin. There will be some additional questions 
which will be submitted for your response in the record.
    [The following questions were not asked at the hearing, but 
were submitted to the Board for response subsequent to the 
hearing:]

                Question Submitted by Senator Tom Harkin

    Question. Chairman Schaumber, can you provide information about the 
NLRB's financial support for the training its employees over the last 5 
years? I understand that training is a key part of the contract and 
there are concerns that the NLRB may not be meeting that commitment.
    Answer.
      NLRB Financial Support for Training (Fiscal Year 2004-2008)
    The Agency funds extensive training for employees covered and not 
covered by collective bargaining agreements. For employees covered by 
collective bargaining agreements, the Agency provides funds for 
individual training as specified in the bargaining agreements and also 
provides group training targeted at critical skill needs.

                         TOTAL FUNDING PROVIDED
------------------------------------------------------------------------
                       Fiscal year                            Amount
------------------------------------------------------------------------
2008....................................................        $370,000
2007....................................................         457,000
2006....................................................         554,000
2005....................................................   \1\ 1,011,000
2004....................................................         496,100
------------------------------------------------------------------------
\1\ Includes non-recurring costs for periodic agency conferences.

    From fiscal years fiscal year 2004-fiscal year 2008, collective 
bargaining individual training was fully funded in each fiscal year 
except fiscal year 2004:
    For fiscal year 2008, training was fully funded at the beginning of 
the fiscal year;
    For fiscal year 2007, training funding was suspended due to the 
Continuing Resolution and low funding for the Agency as a whole and 
fully funded in July when funds became available;
    For fiscal year 2006, funding was suspended during the Continuing 
Resolution and fully restored after the Continuing Resolution expired;
    For fiscal year 2005, funding was suspended during the Continuing 
Resolution and fully restored after the Continuing Resolution expired;
    For fiscal year 2004 collective bargaining individual training was 
funded at 56 percent in fiscal year 2004 along with other non unit 
individual training accounts due to low overall Agency funding. (Note 
that for all of these years, training for bridge (upward mobility) 
participants was fully funded throughout the fiscal year.)
    Looking at highlights of group training, as Agency funding 
permitted, we:
    Offered conference training on the provisions of the National Labor 
Relations Act for new employees, trial training for more experienced 
employees, and refresher training for senior employees.
    Contracted with a nationally recognized legal writing expert to 
create an 11-module videotape program for Field Agents and with a 
university Law professor to provide customized legal writing training 
and coaching for Headquarters Attorneys.
    Used in-house experts to create over 30 instructor script/classroom 
activity modules on critical Agency case law and procedures. Local 
instructors throughout the country use these, thereby insuring 
consistent training Agencywide.
    Provided all Support Staff employees training on ``Time 
Management,'' ``Oral Communications,'' and ``Conflict Management'' by 
video conference and on ``WorkSmarts'' by facilitated videotape 
training. We are also working on a facilitated videotape program on 
Grammar for all Support Staff employees.
    Delivered a ``Training Tuesdays'' program for all employees which 
uses short net meeting or videoconferencing sessions that focus on 
immediately applicable skills or information.
                                 ______
                                 

              Questions Submitted by Senator Arlen Specter

    Question. Does the NLRB publicly report statistics regarding 
Petitions for Election and Decertification and/or publicly provide 
access to the Petition as filed? If not, why not and what would be 
required to do so and at what least cost while assuring accuracy in 
reporting or posting such information?
    The agency does not prepare public statistical reports regarding 
pending Petitions for Election and Decertification. Select information 
regarding pending Petitions for Election and Decertification is 
available to the public through the NLRB's Electronic Case Information 
System (ECIS), located on the agency's website www.nlrb.gov (under the 
E-Gov tab). ECIS provides access to current case information, including 
case status, for all representation cases. Copies of petitions filed 
are available to the public via a FOIA request, and numerous persons 
and organizations throughout the country routinely request and are 
provided copies of such petitions.
    ECIS is one part of ongoing program of the agency begun in 2003 to 
implement the President's Management Agenda and E-Gov initiatives. Our 
goal has been to make our processes, procedures, decisions and general 
activities more transparent to the public. We have renovated the 
agency's website by greatly expanding its content, making it 
interactive, more user-friendly, and enhancing its E-Filing capacity. 
The site recently was recognized as one of the five best in the Federal 
Government by the National Security Archive (NSA), a nongovernmental 
research institute and library located at George Washington University. 
Our ultimate objective is to make all data and documents, otherwise 
disclosable under FOIA, available to the public on our website.
    Our most recent technology initiative in this process is to 
transition from multiple legacy case tracking systems to an enterprise-
wide case and document management system. When completed, this system, 
called the Next Generation Case Management System (NextGen), will give 
the public online access to extensive case information, statistical 
reports and related documents. NextGen is our highest priority 
technology initiative.
    As originally planned, NextGen was to be completed in early 2009. 
Due to budgetary constraints, however, we were required to 
incrementally fund the project, which may result in extending the 
project timeline by up to two years. With additional funding, we would 
be able to complete NextGen earlier.
    Question. Does the NLRB publicly report statistics and/or publicly 
provide access to the final outcome for each Petition for Election or 
Decertification? If not, why not and what would be required to do so 
and at what least cost while assuring accuracy in reporting or posting 
such information?
    Answer. The agency prepares historical reports on closed cases that 
provide statistics relating to the elections held, eligible voters, 
valid votes counted, and where certification of representative or 
certification of results has been issued in cases closed during the 
fiscal year. The Election Report is available on a monthly basis and a 
summary report of the certified elections is published every 6 months. 
These reports are available to the public on the agency's website under 
the ``Publications'' tab and then ``Reports''. Select information 
regarding specific Petitions for Election or Decertification is 
available to the public online through ECIS. When completed, NextGen 
will provide real-time representation case statistics online to the 
public.
    Question. Does the NLRB publicly report statistics and/or publicly 
provide access to information permitting analysis to determine by 
Petitioner union and employees' employer (a) the number of Petitions 
for Election or Decertification filed, (b) the number of Petitions for 
Election or Decertification processed through election and 
certification of results, and (c) the outcome--for or against 
petitioner--in each case. If not, why not and what would be required to 
do so and at what least cost while assuring accuracy in reporting or 
posting such information?
    Answer. The agency does not prepare public statistical reports 
sorted by Petitioner union and employees' employer. When the public 
files a FOIA request for such information, we routinely prepare reports 
in response to those specific requests.
    As mentioned above, ECIS enables the public to perform searches of 
representation case information. The results are presented on a case-
by-case basis. It does not offer any statistical analysis tools, nor 
does it allow the public to download the data for independent 
statistical analysis. However, we have permitted direct access to one 
of our legacy case tracking systems by outside organizations based on a 
showing of need. We currently allow direct access by the AFL-CIO and we 
have allowed academics this same access. When completed, NextGen will 
allow the public online access to all FOIA-able data for independent 
analysis and reporting.
    Question. Does the NLRB publicly report statistics and/or publicly 
provide access to information permitting analysis to determine (a) the 
number of requested card-check recognitions, (b) the number of 
requested card-check recognitions voluntarily accepted/recognized by 
the employees' employers? If not, why not and what would be required to 
do so and at what least cost while assuring accuracy in reporting or 
posting such information?
    Answer. Historically, the agency has not collected statistics on 
card-check recognitions. Employers and unions who enter into such a 
recognition agreement pursuant to a card-check may advise the NLRB of 
the agreement and request that the agency provide a Notice to Employees 
advising them of their right to file a decertification petition in 
accordance with the Board's decision in Dana Corp., 351 NLRB No. 28 
(September 29, 2007). The NLRB does record information concerning these 
``Dana'' requests and provides it to the public upon request.
    The FMCS may separately collect information on card-check 
recognitions in connection with its mediation function.
    Question. Does the NLRB publicly report statistics and/or publicly 
provide access to information permitting analysis to determine by 
requesting union and employees' employer (a) the number of requested 
card-check recognitions and (b) the number of requested card-check 
recognitions voluntarily accepted/recognized by the employees' 
employers? If not, why not and what would be required to do so and at 
what least cost while assuring accuracy in reporting or posting such 
information?
    Answer. See answer to the previous question above.

                         CONCLUSION OF HEARING

    Senator Harkin. Thank you both very much. That concludes 
our hearing.
    [Whereupon, at 11:20 a.m., Wednesday, April 2, the hearing 
was concluded, and the subcommittee was recessed, to reconvene 
subject to the call of the Chair.]

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