**Testimony of**

**Robert J. Battista**

**Chairman**

**National Labor Relations Board**

**Before the**

**Senate Committee on Health, Education, Labor and Pensions**

**Subcommittee on Employment and Workplace Safety**

**and**

**House Committee on Education and Labor**

**Subcommittee on Health, Employment, Labor and Pensions**

**10:00 am**

**December 13, 2007**

INTRODUCTION

Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and Ranking
Member Kline, and Members of the Subcommittees:

My name is Robert Battista, and I am Chairman of the National Labor
Relations Board. The NLRB is an independent federal agency created by
Congress in 1935 to administer the National Labor Relations Act, as
amended, the primary law governing relations between unions and
employers in the private sector. The statute guarantees the right of
employees to organize and to bargain collectively with their employers,
and to engage in other protected concerted activity with or without a
union, or to refrain from all such activity. Under the Act, the NLRB has
two principal functions:

-   to conduct secret-ballot elections among employees to determine
    whether or not the employees wish to be represented by a union; and

-   to prevent and remedy statutorily defined unfair labor practices by
    employers and unions.

Thank you for the opportunity to discuss recent decisions of the
National Labor Relations Board and their impact on employee rights. I
understand you are most interested in the decisions we issued in
September 2007. Before addressing specific decisions, I would like to
cite some of this Board's accomplishments and to offer some observations
about the Agency and the National Labor Relations Act.

Notwithstanding the special interest group rhetoric you may be hearing
about the NLRB, I want to assure Congress that the Agency is
successfully carrying out its statutory mission to administer the Act as
its has been written by Congress and interpreted by the reviewing
courts.

AGENCY PERFORMANCE

In three days, I will have completed my five-year term as Chairman. I
thought it would be appropriate to look back upon my term to see how the
Board fared against the goals we established for the Agency when we
first took office. In December of 2002, our goals as a Board were to
become more productive, credible with the Court's, collegial, and
transparent. As I will explain, we have substantially accomplished those
goals.

**1. [Productivity]{.underline}**

We certainly have become more productive. In fiscal year 2002, the last
fiscal year before I became Chairman, the Board issued a total of 443
cases. Since I became Chairman in December 2002, the Board has issued
almost 500 cases a year through the end of FY 2007 on September 30,
2007.

**GPRA Case Initiative**

In fiscal 2007, all Board Members made a determined effort to meet our
goals pursuant to the Government Performance Results Act, which we refer
to by the acronym "GPRA." Our internal GPRA goal for unfair labor
practice ("C") cases was to issue by September 30, 2007, decisions in
90% of the 216 C cases pending as of May 1, 2006. Our internal GPRA goal
for representation cases was to issue by September 30, 2007, decisions
in 90% of the 59 representation ("R") cases pending as of October 1,
2006.

We were successful in issuing decisions in many of our oldest GPRA
cases. Indeed, in fiscal 2007 we issued decisions in 48 of our oldest 50
cases. With regard to R cases, we issued rulings in 98.3% of all the R
cases we had on October 1, 2006 thus exceeding our GPRA goal. We issued
decisions in 84.1% of our GPRA C cases we had on hand on May 1, 2006.
Thus, while we did not quite meet our internal GPRA C case goal, we were
able to issue decisions in the great bulk of the old cases, many of
which had lengthy records and difficult issues that seemed to have been
handed down from one Board to another. Another way to look at the
success of our efforts is to compare median case pendency periods. At
the end of fiscal 2006, the median number of days that a C case was
pending with the Board was 809 days. After our GPRA effort in Fiscal
2007, the median number of days a C case remained at the Board was 181
days.

We achieved a similarly dramatic reduction in median time for R cases.
At the end of fiscal 2006, the median number of days an R case was at
the Board was 409 days. After our GPRA effort in fiscal 2007, the median
number of days for our R case inventory was 88.

While we still have some old C cases that we intend to decide before the
end of the year, the claim that cases are languishing at the Board is no
longer true.

**Case Backlog at Lowest Level in Over 30 Years**

Furthermore, we have made real inroads on the backlog. Five years ago
the case backlog at the Agency stood at 621 contested cases. Many of
them had been at the Board for a number of years. At the end of FY 2007,
we have reduced that backlog to 207 cases or a reduction of some 66.5%.
Granted, a lower intake of cases helped us in this effort, but we did
well in bringing the caseload down to a respectable working inventory.

**Board Issues Lead Case Decisions**

During the same period, the Board has issued 28 major decisions. We had
hoped to issue more. However, to decide a major issue, the Board must
have at least a three-member majority who are willing to sign on to the
opinion. That task was made doubly difficult because during my
chairmanship, the Board had fewer than 5 members for 18 months or 30% of
the time, including all of calendar year 2005. Of course, when a new
member comes on to the Board, it takes a while for the new member to
come up to speed, acclimate himself or herself with staff, and for the
Board to develop the necessary chemistry to reach consensus or even a
majority.

**Representation Case Activity**

With regard to representation case activity at our Regional Offices
during FY 2007, 2,439 (RC and RM) petitions were filed, which resulted
in holding 1,559 elections.

-   Unions won 54.3% of those elections;

-   The time from the filing of a petition to the holding of an election
    was 39 median days;

-   93% of the elections were held within 56 days;

-   78.9% of all R cases were closed by the Agency within 100 days from
    the filing of the petition.

-   Only 13 cases involved a technical refusal to bargain to test the
    certification, which means employers challenged the certification of
    unions in court in only 1.1% of the elections that unions won.

**Board Collects Over One-Half Billion Dollars in Backpay**

In FY 2007, the NLRB collected \$110,388,806 in backpay, and 2,456
employees were offered reinstatement. Over my tenure as Chairman, the
NLRB recovered a total of \$604 million on behalf of employees as
backpay or reimbursement of fees, dues, and fines, with 13,279 employees
offered reinstatement.

All and all, from a productivity standpoint, we have done a very
credible job, of which I am proud. In the words of one longtime observer
of this Agency, "the efficiency and productivity of the Board continues
to serve as a role model for many Federal agencies." G. Roger King,
*"We're Off to See the Wizards" A Panel Discussion on the Bush II
Board's Decisions . . . And The Yellow Brick Road Back to the Record of
the Clinton Board*, (paper presented at the American Bar Association,
Section of Labor and Employment Law, 34th Annual Development of the Law
Under the National Labor Relations Act Mid-Winter Committee Meeting on
February 26 to March 1, 2006).

**2. [Credibility in the Courts]{.underline}**

Building credibility with the U.S. Courts of Appeals was the second
objective. In fiscal 2002, the prior Board had its decisions enforced in
the courts in whole 60.4% and in whole or in part 70.8% of the time.
From December 2002, when I took office, through September 30, 2007, the
decisions of the Board have been enforced by the Courts in whole 78.1%
and in whole or in part 87.7% of the time. Indeed, in fiscal 2007, our
decisions were enforced in whole 86.6% and, in whole or in part, 97% of
the time. [Both of these enforcement rates are the highest in the
Agency's history.]{.underline}

**3. [Collegiality]{.underline}**

Fostering collegiality and bipartisanship was a third goal, and despite
strongly-worded dissents in some of the more important cases, in the
main, the whole Board has been fairly collegial. Despite differences,
which are not always predictable based upon political affiliation, we
have tried to be guided by tolerance and respect for each other's
strongly held views.

**4. [Transparency]{.underline}**

The last of our goals has been to make the Agency more transparent to
the public it serves by implementing the President's Management Agenda
and E-Gov initiatives. We have renovated the Agency's Web site by
greatly expanding its content, making it interactive, more
user-friendly, and greatly enhancing its E-Filing capacity. We also are
building an enterprise-wide electronic case management system designed
to reduce reliance on paper-based processes, improve operational
efficiency, and better serve the public.

CRITICISMS AND RESPONSES

**Complexity of the Board's Responsibility**

Some critics of the Board emphasize that the Act, as amended, retains
the language from its original statement of purpose, found in the 1935
Wagner Act, calling for the encouragement of collective bargaining.
These commentators invoke this language to fault the Board for not doing
enough to promote unionism. In my opinion, this is an anachronistic view
that ignores the amendments to the 1935 Act and the complexity of the
Board's responsibility.

The Board's responsibility is much more complex than the promotion of
any institution's agenda because of the interplay of two essentially
legal (as opposed to economic) forces. First, the Wagner Act was not
Congress' last word. The Taft-Hartley Act of 1947 and the
Landrum-Griffin Act of 1959 amended the original Wagner Act
substantively and philosophically. Second, the courts have interpreted
the Act and its amendments in a way that reflects the compromises
underlying the legislation and leaves no room for the Board to construe
and apply the amended Act as if it were the property of a single
interest group.

**Balancing Competing Interests**

As defined by the sum total of the amendments and the court decisions,
the Board's mission is to balance and accommodate competing interests,
which typically conflict with one another. For example, although
employees have the right to organize and engage in collective
bargaining, employees also are assured of the right [not]{.underline} to
engage in union or concerted activity. Thus, the narrower goals of the
original Act were tempered significantly by a broader notion of
workplace democracy, voluntarism and neutrality, as expressed in the
Taft-Hartley amendments. As one of our most eminent labor law and
constitutional scholars, the late Archibald Cox, put it: The
Taft-Hartley Act "represents a fundamental change in philosophy, which
rejects outright the policy of encouraging collective bargaining."
Archibald Cox, Some aspects of the Labor Management Relations Act of
1947. 61 Harv. L. Rev. 1, 24 (1947).

My own view is that Professor Cox was absolutely right insofar as he saw
the Taft-Hartley amendments as adopting a posture of complete equipoise
on the question of whether employees should choose union representation.
In the words of the Supreme Court, "The Act is wholly neutral when it
comes to that basic choice" (*NLRB v. Savair Manufacturing)*. Once
employees have freely chosen union representation, however, I think that
the policy of encouraging the collective bargaining process retains its
vitality.

Even in the context of collective bargaining, the statute is neutral as
to the outcome of negotiations. In this regard, Section 8(d) of the Act
defines the obligations of the parties to engage in good faith
bargaining, but specifically notes that "such obligation does not compel
either party to agree to a proposal or require the making of a
concession . . . ."

Another example of the resolution of conflicts between competing
interests occurs in the context of economic battles over terms of a
collective bargaining agreement. Although employees are entitled to
strike for better working conditions, the right of an employer to
continue business operations has been recognized since the beginning of
the Act's history. Thus, employers are allowed to hire replacement
workers during the strike, who need not be displaced once the strike is
over.

This balancing of competing interests also is illustrated in the
frequently litigated question of whether a union has a right to engage
in concerted activity -- like picketing or handbilling -- on the private
property of an employer. Over 50 years ago the Supreme Court told the
Board that when the Section 7 rights to engage in concerted activity
conflict with property rights, the Board must accommodate the two "with
as little destruction of one as consistent with the maintenance of the
other."

**Criticisms are Politically Motivated and Without Foundation**

The polemics of certain groups against recent decisions of the Board are
nothing more than special-interest attacks designed to gain support for
their position in the coming election cycle. The hue and cry is that the
"Bush majority" rushed out 61 decisions in September in a "massive
assault on workers" before the President's term ends. That is just not
so. Anyone with a basic knowledge of Board case processing knows that
September, the last month of the fiscal year, is the busiest case
production time. The Board actually issued 70 decisions in September,
after a bi-partisan effort by all five Members to issue the oldest
cases. The equivalent numbers for September issuances in the prior four
years are 119, 54, 114, and 105. As for the substance of what the Board
held, the decisions speak for themselves. It should be noted, however,
that in the majority of unfair labor practice decisions issued in
September, the Board found one or more violations of the Act by the
employer involved.

Should parties appeal the decisions, one of the 12 circuits of the U.S.
Courts of Appeals will decide whether to affirm or reverse the Board. If
a Board decision is balanced and well reasoned, generally it gets
enforced. As I stated previously, in FY 2007, which ended on September
30, 2007, the Board's decisions were enforced by the courts at
historically-high levels.

Our critics' prognostications that "the NLRB system is broken and has
become a tool of corporate interest," are simply false. Unions are
winning a majority of representation elections, most of which are held
within two months. The Board has averaged issuing almost 500 decisions a
year during my tenure. The median number of days an unfair labor
practice case has been pending at the Board is 181 days; for
representation cases, the median is 88 days. This is not the record of a
Board that is the captive of any group or institution.

**Mission Is to Enforce [Entire]{.underline} Statute**

Our critics declare that the National Labor Relations Act was passed by
Congress in 1935 "to encourage workers to have unions and to bargain
collectively." However, they lose sight of the fact that the statute was
amended in 1947 by the Taft-Hartley Act to give employees the equal
right to refrain from union activities and representation, and to
protect employees from not only employer interference but also union
misconduct. Often critics fail to comprehend that the Board's mission is
to enforce the [entire]{.underline} law as enacted by Congress despite
what any affected party may wish for -- a return to 1935 or to some
future legislative result.

**NLRA Protects Employees**

The statute was not intended to benefit unions or employers. Rather, the
rights granted by the statute belong only to employees -- whether
unionized or not. Once again, the fundamental principle of the Act is to
provide for employee free choice, allowing employees to decide for
themselves whether or not to be represented by a union or otherwise to
act concertedly in dealing with their employer.

If employees exercise their right of free choice in favor of union
representation, the policy of the Act, and the responsibility of the
Board, is to encourage collective bargaining by making sure that unions
as well as employers bargain in good faith, free from governmental
interference. If employees exercise their right of free choice not to be
represented, it is the Board's responsibility to respect that choice and
ensure against union restraint or coercion. The law is neutral . . . and
so is this Agency.

**Most Cases Resolved Quickly**

Another criticism leveled at the Board focuses on the delay in
processing cases to final conclusion. The overall case processing times,
however, reveal the criticism's delay premise to be exaggerated. In FY
2007 the NLRB received 25,471 cases, 22,147 of which were unfair labor
practice cases, and the remaining 3,324 were representation cases. After
the General Counsel investigates the unfair labor practice cases,
typically about one third of the cases are determined to have merit. In
FY 2007, 36.6% of the cases were found to have merit. These
investigations usually are completed in about two months.

**Only 1-2% of Cases are Appealed to Board**

Of the cases found to be meritorious, some 90% are settled prior to the
issuance of a complaint. Complaints that Regional Directors do issue in
meritorious cases are considered by NLRB Administrative Law Judges, and
judges' decisions can be appealed to the Board here in Washington, D.C.
In FY 2007, the median time to issue complaints was 98 days. Since 1990,
the cases pending before the Board in Washington have represented only
1% to 2% of cases filed with the Agency nationwide. These cases tend to
present the most difficult and complex issues in labor law. By focusing
only on this small percentage of cases, some critics give the impression
that delay inherent in a fully-litigated case is the norm. This is not
true. Although, admittedly, some of these fully litigated cases take too
long to resolve, such delays are not typical. Overall the NLRB's case
processing record is impressive.

The vast majority of these cases are resolved without the necessity of
litigation. Historically, the Board's settlement rate has been very
high; in FY 2007, 97% of all unfair labor practice cases filed in the
field offices were settled.

**Board Decisions Speak for Themselves**

The decisions this Board has issued are correctly decided, soundly
reasoned, and speak for themselves. In many instances, the decisions are
unanimous. True, some of the more important decisions have not been, but
dissent is healthy for many reasons, including the assurance dissent
provides that the members in the majority have considered carefully
opposing views and arguments.

**Evolution of Labor Policy under the Act**

The genius of the Act is that it sets forth enduring fundamental
principles, and yet allows for flexibility and change. It accomplishes
the former by setting forth fundamental principles in clear and
compelling language. It accomplishes the latter by using broad language
that gives the administering agency, the Board, the freedom and
responsibility to make policy judgments within the parameters of those
principles.

More specifically, the enduring fundamental principles include: the
employee freedom to choose to be represented or not; the guarantee of
good-faith bargaining free from governmental interference if employees
choose representation; an electoral mechanism to insure that employees
are appropriately grouped together, and can vote in secret; the duty to
sign and honor contracts that are freely agreed to; and the protection
of employers from labor disputes in which they are not involved.

Within these principles, there is considerable discretion vested in the
Board. Congress chose broad language, and then left it to the Agency to
act in its discretion, so long as it does not depart from the
principles. A few examples will suffice:

1\. Congress said that an employer shall not "interfere with" Section 7
rights. Is it "interference" to prohibit persons who are not employees
of the property owner from engaging in union solicitation on company
property? If the persons are truly outsiders, the Supreme Court has told
us that the answer almost always is "no." But what happens if the
persons are employees of a tenant of the property owner who come to work
on that property every day? This is an issue on which the Board held
oral argument about a month ago.

2\. Should employees have the right to oust or change a representative?
The simple answer is "yes," but the Board has the power to limit this
right in the interest of bargaining stability through contract-bar
rules, certification year rules, and "reasonable time" insulated
periods. In its recent decision in *Dana Corp.*, 351 NLRB No. 28 (2007),
the Board adjusted the balance between freedom of choice and bargaining
stability.

3\. Should the duty to bargain include the duty to supply information?
The simple answer is "yes," but the Board has the discretion to
determine such matters as relevance and confidentiality. The Board
historically has distinguished between information that pertains to
employees within the bargaining unit the union represents and
information that pertains to employees or entities outside the
bargaining unit. In the former case, the information is presumptively
relevant and the union is entitled to the information without any
further showing. In the later case, the information is not presumptively
relevant, and the union is not entitled to the information unless it can
show that it is relevant to the union's duties as the collective
bargaining representative. The Board currently is considering when and
to whom the union must demonstrate that such requested information is
relevant.

**Reversal of Precedent**

With such difficult policy judgments in mind, it is not surprising that
Board law changes from time to time. The Board's freedom to act within
parameters means that over time different Boards will act in different
ways.

Our Board, indeed, has reversed precedent but not as frequently as the
Board did during the years 1994 to 2001. Having compiled the statistics
for a paper delivered at the American Bar Association, Section of Labor
and Employment Law, 34th Annual Development of the Law Under the
National Labor Relations Act Mid-Winter Committee Meeting on February 26
to March 1, 2006, G. Roger King reported:

> From March 1994 until December 2001 the Clinton Board issued 60
> decisions . . . which reversed Board precedent.
>
> \* \* \*
>
> In these 60 decisions 1,181 years of precedent were overturned, or
> "lost."
>
> \* \* \*
>
> During this timeframe \[December 2002 to February 2006\] the Bush II
> Board issued 9 decisions . . . which reversed precedent.
>
> \* \* \*
>
> When all cases decided by the Bush II Board which reversed precedent
> are included 146 years of precedent was "lost."

From February 2006 until present, our Board issued an additional 12
decisions that overruled precedent, and the number of years of precedent
"lost" was 197. In total, the prior Board issued 60 decisions that
overruled 1181 years of precedent and our Board has issued only 21
decisions that overruled 343 years of precedent. The bottom line is that
our Board reversed precedent only one-third as many times as the prior
Board. Moreover, in many of these cases we restored the precedent that
had been overruled by the prior Board.

This evolution of policy is precisely what Congress intended when it
gave the Board policy-making function. So long as the Board does not
stray from the Act's fundamental principles, and so long as the Board
explains the reasons that impel it to disagree with a prior decision,
the Board has the power to change. The Act envisions the federal
judiciary as the arbiter of the Board's statutory faithfulness. Where
the Board has strayed too far from the Act's fundamental principles or
has not explained its reasons, the Courts will decline to enforce the
Board's decisions. As noted earlier, our enforcement record in the
Courts of Appeals is at a historic high, which is strong proof that our
decisions have been faithful to the statute.

Of course, all responsible Members realize the value of *stare decisis*
--. the value of having stability, predictability and certainty in the
law. However, if a Member honestly believes that a prior precedent no
longer makes sense, and that a change would be more in keeping with the
fundamental principles described above, he/she can -- and may feel
obligated to -- vote to change the law. To be sure, the values of *stare
decisis* counsel against an onslaught of changes. But prudently
exercised, change is proper and, indeed, was envisaged by Congress.

Similarly, because of the limited terms of Members, and the evolving
composition of the Board, it is not surprising that some Boards will be
viewed as being more liberal and other Boards as being more
conservative. Although such characterizations grossly oversimplify the
decisional process and do not account for each Board member's personal
and usually nuanced policy orientations, the characterizations may well
describe public perceptions. In view of the structure set up by
Congress, this should not be seen as startling. But again, prudence
requires that a given Board not swing radically to the left or right.

Overall, the Board has not had radical swings to the left or right. Most
of the law is well-settled, and the parties litigate the facts under
those principles. In a few areas, the law has gone through periods of
flux, but ultimately it has settled down. For example, the Board
flip-flopped for years on whether misrepresentations are objectionable
conduct in an election context. But, in *Midland*, 263 NLRB 127 (1982),
the Board ultimately held that such conduct would not ordinarily be
objectionable. The law has been thus for 23 years. Similarly, the Board
wrestled for years as to the burdens of proof in 8(a)(3) cases. Finally,
the Board articulated a clear test in *Wright Line*, 251 NLRB 1083
(1980). The law has been thus for 25 years. In addition, the Board held
for a time that interrogation about Section 7 activity was *per se*
coercive. After judicial criticism, the Board abandoned this approach in
*Rossmore House* 269 NLRB 1176 (1984). The law has been thus for over 20
years. Finally, the Board once held the view that plant relocations were
contract modifications, even if the contract contained no clause
proscribing relocations. *Milwaukee Spring*, 235 NLRB 720 (1978). The
Board later abandoned that view, *Milwaukee Spring*, 268 NLRB
601.(1984), and then held that relocations were bargainable only in
limited circumstances. *Dubuque Packing*, 303 NLRB 368 (1991). The law
has been thus for over 16 years.

**Protecting Workplace Democracy**

These are examples of Board fluctuations which ultimately resulted in
stability. I submit that the ultimate stable point was true to the Act's
fundamental principles. By being true to its principles, and yet
flexible enough to change, the Board has continued to serve the national
interest in protecting workplace democracy.

Throughout the years, the NLRB has been a bastion protecting the right
of workers to choose union representation or no representation, and if
they choose union representation, to make sure that the Act's twin
objectives for the collective bargaining process are carried out -- that
the parties bargain in good faith and that they do so free from
governmental interference. We continue to vigorously uphold workers'
rights and the Act's bargaining process objectives in a fair and
balanced manner.

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