[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
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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).
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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.
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\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.
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\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.
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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\
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\4\ A Region need not submit merit cases in which the parties agree
to a bilateral settlement before complaint issues.
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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.
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\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.
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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\
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\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'')
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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.
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\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\
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\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).
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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.
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\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.
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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\
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\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).
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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\
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\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).
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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\
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\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.
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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
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\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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