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"

December 13, 2007

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

Thank you for inviting me to testify today about the recent decisions of
the National Labor Relations Board and their impact on workers' rights.
It is my privilege to appear before you today.

I dissented from many of the Board's recent decisions \-- and from many
earlier decisions, as well. Unfortunately, their impact on workers'
rights has been uniformly negative. As Member Dennis Walsh and I said in
one dissent, the Board's recent decisions "will surely enhance already
serious disenchantment with the \[law's\] ability to protect the right
of employees to engage in collective bargaining."[^1] While any one
decision standing alone may not be cataclysmic in impact, viewed
together, they represent a pattern of weakening the protections of the
Act.

Today, fewer workers have fewer rights, and weaker remedies, under the
National Labor Relations Act. Virtually every recent policy choice by
the Board impedes collective bargaining, creates obstacles to union
representation, or favors employer interests. It is inconceivable under
this statute that the answer could always be the same. No wonder that
there has been loss of faith in the Board. That development is
regrettable. It exacerbates an already existing concern whether the Act
is still effective in protecting the right to organize and in promoting
collective bargaining --- the core purposes of federal labor law,
alongside ensuring employee free choice in these matters.

A.

My perspective on the Board's decisions is shaped by my considerable
experience there and by a career spent in labor law and labor policy,
both in and out of government.

Now in my third term, I am the longest-serving Member of the current
Board. I began my service a little more than ten years ago, on November
14, 1997, after being appointed by President Clinton and confirmed by
the Senate. I was reappointed and confirmed in 2002 and again in 2006.
My current term expires in August 2011. By that time, I will be the
third longest-serving Member in the history of the Board.

Before joining the Board, I served for several years at the Federal
Mediation and Conciliation Service (FMCS), first as Special Assistant to
the Director and then as Deputy Director. I came to the FMCS from a
labor union, the Bricklayers and Allied Craftsmen, where I served as
Labor Counsel. Previously, I had been legal counsel at the International
Brotherhood of Teamsters for nine years. I began my legal career at the
Board, where I served as a staff attorney from 1974 to 1980, after
graduating from the George Washington University Law Center here in
Washington. In short, my career has come full circle: from the Board, to
the Board.

I understand that today's hearing was prompted by the flurry of
decisions issued by the Board in September of this year, as its fiscal
year drew to a close. I will address some of those decisions
specifically, from a dissenter's perspective. But first, I would like to
thank both Subcommittees for focusing attention on the Board and its
work.

For too long, labor law and policy issues have been removed from public
policy discourse. These are difficult issues, and consensus on resolving
them may be hard to achieve --- which must explain why the National
Labor Relations Act has not been significantly amended since 1947. But I
would hope for a common recognition that these issues are important, no
matter how dry and legalistic they sometimes seem --- that they matter
to working people, to businesses, and to our economy and our society as
a whole. It is critical that these issues receive informed consideration
from the public and from the Congress. If our industrial era law does
not keep pace with the realities of today's economy and the evolving
workplace, then the protections it seems to offer workers are illusory.
Today social and economic pressures on the collective bargaining system
are compounded by a legal regime that is making it harder for that
system to work and by an administrative agency that, at bottom, lacks
commitment to fixing the problem.[^2]

B.

Let me turn to the Board's September decisions, and begin by putting
them in context. First, the decisions attracted attention not only
because of their holdings, but because they were issued more or less as
a group. On that last score, I hesitate to fault my colleagues at the
Board. The Board's goals for promptly deciding cases, under the
Government Performance and Results Act (GPRA), are keyed to the fiscal
year, which ends on September 30. It has become common in recent years
for the Board to push hard during the final months of the fiscal year to
issue decisions: in effect, to rush to meet the GPRA deadline. That
practice may not be ideal, but it is not nefarious. The result, of
course, may be that several major decisions issue virtually at once. And
if those decisions all, or nearly all, cut the same way, their impact is
felt more forcefully, and the perception of unfairness is more acute.
That is what happened this year.

That said, there is something extraordinary about the Board's recent
decisions. They are the climax of a trend that is now several years old.
The Board is notorious for its see-sawing with every change of
Administration. But something different is going on --- more "sea
change" than "see-saw." The current Board, it seems to me, is divorced
from the National Labor Relations Act, its values, and its goals. Its
decisions have demonstrated as much. It was not surprising, perhaps,
when the current Board reflexively overturned a series of decisions by
the prior, Clinton Board. But the current Board has reached back
decades, in some instances, to reverse long-established precedent, often
going to the core values of this Act. And it has often reversed
precedent on its own initiative, without seeking briefing or oral
argument. Most important, when the Board has decided to reverse
precedent, its reasons for doing so have fallen short --- as dissenting
opinions have pointed out.[^3]

The result has been more than a change in the law, or discontent with
the outcome of particular cases. It has been a loss of confidence in the
Board and the legitimacy of the process, not only among persons and
groups on the losing end of Board decisions, but also among neutral
observers, including labor-law scholars.[^4] The Board's case intake is
down accordingly. Unions have turned away from the Board's election
machinery, and employees and unions hesitate to file unfair labor
practice charges, skeptical --- or even fearful --- of the result.[^5]
In an historic twist, unions are increasingly turning to state or local
governments for help in protecting workers, with diminished hope that
the federal government can be a guarantor of important rights. It is a
troubling signal when protesters converge on the Board and demand that
the Board be closed for renovations. To dismiss this discontent as
merely politics is a mistake, if not irresponsible. We all have an
interest in preserving the legitimacy of the legal process.

C.

I will highlight only a few of the decisions issued by the Board in
September 2007. Nearly all of the significant cases include a dissent,
which hopefully speaks for itself.

Of the September cases, the most significant, and disturbing to me, is a
decision creating new obstacles for employers and unions who wish to
establish a collective-bargaining relationship by means of *voluntary
recognition*. In recent years, unions have increasingly sought to bypass
the Board's election machinery and to negotiate voluntary recognition
arrangements. The Board's procedures are seen as taking too long,
leaving employees vulnerable to coercion by employers, and generating
campaign animosity that can taint a new bargaining relationship.

Under long-established law, an employer is free to recognize a union
voluntarily --- rather than demanding that the Board conduct an election
--- if the union is able to demonstrate that it has uncoerced majority
support among employees, typically by collecting signatures on
authorization cards.[^6] After voluntary recognition, the Board will not
entertain an election petition, or permit an employer to withdraw
recognition from the union unilaterally, until a reasonable period for
collective bargaining has elapsed. This so-called "recognition bar" rule
\-- which encourages voluntary recognition and stabilizes collective
bargaining \-- has been in place, without challenge, for 40 years.[^7]

No longer. In *Dana Corp.*, 351 NLRB No. 28 (Sept. 29, 2007), the Board
overruled precedent and jettisoned the recognition bar, without solid
factual support for its ruling. In dissenting from the Board's decision
to consider the issue raised in *Dana,* Member Walsh and I observed that
with respect to voluntary recognition, union "\[s\]uccess \... has
prompted greater scrutiny" by the Board.[^8]

Now, when an employer agrees to voluntarily recognize a union, after the
union has demonstrated majority support, it must post a notice informing
employees that it has done so and telling them how they can get rid of
the union. That posting opens a 45-day window period, during which
employees --- provided they marshal 30 per cent support among their
co-workers --- may petition the Board for an election to decertify the
union.

In dissent, Member Walsh and I explained the serious flaws in the
majority's decision. The majority failed to recognize that voluntary
recognition is a "favored element of national labor policy," as at least
one federal appellate court has put it.[^9] By effectively putting
voluntary recognition under a cloud, the majority's new scheme
discourages employers from recognizing unions without an election. And
if an employer does extend voluntary recognition, the parties' new
collective-bargaining relationship cannot operate effectively until the
window-period closes. Unions will be under great pressure to produce
results for employees during that period, yet employers will have little
incentive to bargain seriously, if they cannot be sure the relationship
will continue. As the dissent put it, the decision in *Dana* "relegates
voluntary recognition to disfavored status by allowing a minority of
employees to hijack the bargaining process just as it is getting
started."[^10]

I should point out that the notice to employees required in *Dana* ---
informing them that they may challenge the employer's voluntary
recognition of a union \-- is unprecedented. Remarkably, more than 70
years after the National Labor Relations Act was passed, the Board does
*not* require employers to post any notice informing employees of their
rights under federal labor law, except three days before a scheduled
election and as a remedy in cases where the employer has committed an
unfair labor practice.[^11] The Board has never acted on long-pending
petitions for rulemaking requiring such a notice. It is high time we
did.

This is not the only aspect of the *Dana* decision that at least
suggests a double-standard. In *Dana*, one of the reasons offered by the
majority for its new rule is the claim that Board elections are more
reliable in determining employees' true wishes than are the signed cards
typically collected by unions to establish majority support. In this
respect, *Dana* can be contrasted with another September decision,
*Wurtland Nursing & Rehabilitation Center*, 351 NLRB No. 50 (Sept. 29,
2007). There, a two-Member majority held that an employer had lawfully
withdrawn recognition from a union --- without an election \-- because
the union had lost majority support. The majority relied on a petition
signed by a majority of employees that stated: "We the employee's
\[sic\] \... wish for a vote to remove the Union\...." The employees, of
course, did not get the vote they wanted; rather, their employer was
permitted to decide for them whether they would continue to be
represented by the union. In dissent, Member Walsh argued that the
employer should have been required to seek a Board election.[^12] The
majority rejected that view, concluding that the petition --- despite
its, at best, ambiguous wording \-- was enough to establish that
employees no longer wanted union representation.

In *Dana*, then, employee-signed cards are treated as suspect when they
are used to establish union representation. But in *Wurtland*, the Board
had no trouble in relying on an employee-signed petition to *end* union
representation, without an election, even though employees seemed to be
asking precisely *for* an election. That contrast understandably raised
questions about the Board's fairness.[^13] From all appearances, the
current Board is much more protective of employees who wish to *reject*
unionization than it is of employees who seek to unionize. Likewise,
unilateral employer action to withdraw recognition from a union is
apparently favored, but unilateral employer action -- without a Board
election \-- to recognize a union is not.[^14]

Another troubling September decision was *Toering Electric Co.*, 351
NLRB No. 18 (Sept. 29, 2007). There, the Board cut back on the
protections granted to union salts: union members who apply for work
with non-union employers in order to uncover anti-union discrimination
and, if hired, to engage in organizing activity. Salting is an important
organizing tool for many unions, especially in the construction
industry. The Supreme Court has held, unanimously, that salts are
statutory employees under the National Labor Relations Act and thus are
entitled to the protection of the law, including when they seek
work.[^15]

In cases involving salts, the Board's framework for finding unlawful
hiring discrimination was carefully crafted in a bipartisan 2000
decision, *FES*, 331 NLRB 9 (2000). The current Board, however, has
moved farther and farther away from *FES*, taking an approach to salting
that is at odds with Supreme Court doctrine and that makes it easier for
employers to engage in anti-union discrimination.

To begin, in a May 2007 decision, *Oil Capitol Sheet Metal*, *Inc.*, 349
NLRB No. 118 (May 31, 2007), a Board majority --- without being asked to
and without inviting briefs \-- adopted new rules for determining the
length of the backpay period and entitlement to other remedies when a
union salt has been discriminated against. Reversing Board precedent
that had been approved by the federal courts, the majority said that it
would no longer presume that a salt would have worked from the date he
was unlawfully denied employment until the date the employer made a
valid job offer to him --- the general presumption that applies to all
victims of unlawful discrimination. This rule is an example of the
well-established principle in Board law (and in our legal system
generally) that uncertainties are to be resolved against the wrongdoer:
here, the employer who engaged in unlawful discrimination. Rather than
adhere to this principle, the majority adopted a new rule, effectively
requiring the salt to prove how long he would have worked --- despite
the fact that he had never been hired in the first place and that there
is no practical way to establish how long an organizing drive might have
lasted, or how it would have turned out, if the salt *had* been hired.
Failure to meet this evidentiary burden not only cuts off backpay, but
also precludes being instated on the job, as a remedy. As Member Walsh
and I pointed out in our dissent, that approach is fundamentally unfair.
We said that the Board was treating salts as "a uniquely disfavored
class of discriminatees." 349 NLRB No. 118, slip op. at 10.

In September, the Board went farther, again acting on its own
initiative, without briefing, oral argument, or even a request to
reconsider precedent. The *Toering* decision held, in effect, that
employers were free to discriminate against union salts, unless it could
be proved that the salts were genuinely interested in employment (as the
Board only vaguely defined it). Of course, one purpose of salting is to
uncover anti-union discrimination, just as civil rights groups employ
testers to seek housing or employment.[^16]

That decision marked a fundamental shift away from the traditional
analysis in labor-law discrimination cases. Historically, discrimination
cases have turned on the motive of the *employer*, not on the motive of
the applicant for employment. Under the Board's new approach, an
employer who categorically refused to hire union members would commit no
violation of the law, unless a salt could prove that he would have
accepted the job, if offered. Let me be clear. The Board did not simply
limit the remedies for salts who failed to meet their evidentiary
burden. Rather, it held that there could be no violation of the Act,
without satisfactory proof of a genuine interest in employment --- even
if the employer's refusal to hire the salt was not motivated, in the
least, by the salt's level of interest in the job.

In dissent, Member Walsh and I quoted the Supreme Court's words in a
historic 1941 decision, holding that job applicants (and not merely
current employees) were protected by the National Labor Relations Act:

> Discrimination against union labor in the hiring of men is a dam to
> self organization at the source of supply. The effect of such
> discrimination is not confined to the actual denial of employment; it
> inevitably operates against the whole idea of the legitimacy of
> organization.

*Phelps Dodge Corp. v. NLRB*, 313 U.S. 177, 185 (1941). We said that the
*Toering* decision "creates a legalized form of hiring discrimination."
351 NLRB No. 18, slip op. at 21.

Other September decisions also eroded the Board's ability to enforce the
law effectively, by cutting back on the remedies available to workers
who have been victimized by unfair labor practices. These decisions
continue the trend of recent years. Let me offer two examples.

In *St. George Warehouse*, 351 NLRB No. 42 (Sept. 30, 2007), the Board
reversed more than 45 years of precedent to hold, for the first time,
that the General Counsel was required to present evidence that an
unlawfully-discharged employee took reasonable steps to find a new job
after being fired, at the risk of being denied remedial backpay.
Traditionally, it has been the *employer's* burden --- as the wrongdoer
--- to establish that jobs were available and that the employee did not
try hard enough to find one. In dissent, Member Walsh and I explained
why the Board's traditional approach was fair and reasonable. Writing
separately, I also made a more general point: that the majority was
weakening a remedy that "has long been widely recognized as terribly
weak to begin with." 351 NLRB No. 42, slip op. at 11. Labor-law scholars
seem to be in unanimous agreement that the Board's backpay awards,
because they require employees to mitigate their losses, are simply too
small to deter employers from breaking the law.[^17]

A second, unfortunate backpay case issued in September was the panel
decision in *Grosvenor Resort*, 350 NLRB No. 86 (Sept. 11, 2007). There,
a two-Member majority held, among other things, that certain employees,
who had been unlawfully permanently replaced for striking, forfeited the
right to full backpay, because they waited too long --- more than two
weeks --- before seeking new work. To hold otherwise, the majority said,
would "reward idleness." 350 NLRB No. 86, slip op. at 3. Member Walsh
dissented, pointing out that the employees "did not sit idly by; they
were engaged in concerted action \[an unfair labor practice strike\] to
get their jobs back" and "\[o\]nce it became clear that that was not
going to happen, \... they all sought and obtained work." Id. at
11.[^18] Member Walsh dissented as well from another, troubling holding
of the majority: that certain employees who found interim work should
have looked for additional work, instead of waiting for those jobs to
begin. As Member Walsh pointed out, there is no good policy reason for
demanding that employees look for "'interim interim' work." Id. at 13.
In its parsimonious dissection of backpay claims, *Grosvenor Resort*
suggests that the current Board is not committed to providing adequate
remedies to victims of unfair labor practices. Reading *Grosvenor
Resort*, one almost wonders who the wrongdoer really was: the employer
or the employees. What reasonable employee will risk exercising her
labor law rights, if she is uncertain about her chances at the Board,
but can count on a long delay before a violation *might* be found, more
delay before a remedy is awarded, and a meager remedy in the end.

For some apparent violations of the Act, finally, the Board will no
longer grant any remedies. Among the September decisions was *BE & K
Construction Co.*, 351 NLRB No. 29 (Sept. 29, 2007), a case on remand
from the Supreme Court. There, the majority held that a lawsuit that
interferes with activity protected by the Act is lawful, even if it was
filed with a retaliatory motive, so long as there is a reasonable basis
for bringing the suit. In other words, even if an employer's sole motive
in bringing the suit is to punish employees financially for daring to
exercise their labor-law rights, and even if the suit itself is part of
a coordinated series of unfair labor practices, the employer has not
committed an unfair labor practice by pursuing litigation. It is
certainly true that in this area, the Board must proceed carefully, in
light of an employer's constitutional right to petition the government,
including by filing a lawsuit against employees and their union. But the
majority's position in *BE & K* that its sweeping protection of employer
lawsuits was somehow dictated by the Supreme Court is simply incorrect,
as Member Walsh and I pointed out in dissent.

D.

I have touched on only some of the Board's September decisions. But
rather than discuss all of them, I would point out that none of these
decisions should have surprised a careful observer of the current Board.
They represent the crest of a wave set in motion five years ago, when
the labor-law tide turned.

Where decisional choices are available to the Board, the choice too
often selected narrows statutory coverage or protection. Fewer workers
have been afforded fewer rights; employee rights are subordinated to
countervailing business interests; meaningful remedies are denied; and
recent decisions that tried to update the law have been overruled.
Increasingly, the Board has adopted a formalistic approach to
interpreting the law, turning away from the real world and the
challenges it poses for labor policy.[^19]

To begin, the 2001-present Bush Board (in its various incarnations) has
almost reflexively overruled many of the key decisions issued by the
prior Clinton Board, which had endeavored to update the law by affording
greater protections to workers in an evolving economy. For example,
modest efforts were made to give more workers coverage under the Act's
protections,[^20] to enhance the ability of contingent workers to engage
in collective bargaining,[^21] to preserve representational rights after
a corporate merger or consolidation,[^22] and to provide non-union
workers (more than 90 percent of today's private sector workforce) with
an important protection against unfair discipline.[^23]

Simultaneously, the present Board majority has undermined
long-established doctrines that promote collective bargaining by
allowing employers and unions to enter into voluntary recognition
arrangements.[^24] The Board has demonstrated a corresponding reluctance
to revisit doctrines that hinder collective bargaining by allowing
employers to unilaterally terminate collective bargaining
relationships,[^25] making it more difficult to bring the "necessary
party" into the collective bargaining process,[^26] facilitating
employer pressure on employees to reject unionization,[^27] placing
artificial barriers in front of voluntary recognition of unions by
employers,[^28] and permitting employers to retaliate against employees
for engaging in statutorily-protected conduct.[^29]

Perhaps the best illustration of the Board's current decisionmaking is
its 2006 decision in *Oakwood Healthcare, Inc*.,[^30] interpreting key
terms in the Act's definition of a "supervisor." This decision came in
the wake of the Supreme Court's decision in *Kentucky River*,[^31] which
had rejected the Clinton Board's attempt at a limiting interpretation
with respect to professionals. In *Oakwood*, the Board majority \--
relying on dictionary definitions of ambiguous statutory terms, without
explaining the choice among definitions \-- selected a
more-expansive-than-necessary reading of the supervisory exclusion. The
majority expressed its indifference to the impact of its decision,
rejecting what it called the dissenters' "results-driven approach" in
looking to the potential real-world consequences of the majority's
interpretation.[^32] The Board thus issued a decision that potentially
swept many professional employees outside of the Act's protection, while
failing to engage in the sort of reasoned decision making that Congress
expected from the Board.

Unfortunately, *Oakwood* reflects a trend to limit the coverage of the
Act itself. [^33] When non-traditional (or non-traditionally employed)
workers have sought to organize themselves into a union, the Board
majority has denied them statutory "employee" status: graduate teaching
assistants,[^34] disabled workers,[^35] artists' models,[^36] and
newspaper carriers.[^37] The Board has also limited the ability of
contingent employees -- workers supplied by one employer to another \--
to engage in collective bargaining.[^38]

In these cases, the majority justified its decisions on dubious policy
grounds, giving little weight to the plain language of the Act (which is
perhaps surprising, given the majority's adherence to a narrow
textualism in *Oakwood*). [^39] The Board largely ignored the economic
realities of the employment relationships in question, and declined to
exercise its discretion to afford a broader group of workers a right to
collective representation.

What is the result? Fewer workers have fewer rights under the Act. In
several recent decisions, the Board majority has chosen a very confined
view of "concerted" activity for the purpose of "mutual aid or
protection," as protected by section 7 of the Act.[^40] All private
sector workers covered by the Act, union-represented or not, have the
right to engage in these activities. Yet, in *IBM Corp.*,[^41] the Board
held that, unlike unionized workers, employees in the non-union sector
have no right to a witness at an investigatory interview that might lead
to discipline. *IBM* reversed the recent *Epilepsy Foundation*[^42]
decision, which was significant not just for its specific holding, but
also for its reminder that the statute's protections apply to
unrepresented workers, whether they know it or not.[^43] With *IBM*, the
Board signaled that it was not prepared to treat non-union workers as
fully within the Act's protection. Because so few private sector
employees are unionized, statutory protections for non-union workers
have never been more important. Such workers do, in fact, spontaneously
act together to seek better working conditions,[^44] and thus the Act
might well matter to them.

The Board majority regularly has found that employee statutory rights
must yield to countervailing business interests. These interests are
far-ranging. They include private property rights (including an
employer's property interest in a piece of scrap paper used to post a
union-meeting notice),[^45] various managerial prerogatives,[^46]
business justifications,[^47] notions of workplace decorum and
civility,[^48] and employer free speech rights.[^49] In cases involving
unionized workers, the decisions signify a *laissez-faire* approach to
bargaining, giving employers free rein to operate without meaningful
bargaining.[^50] Where non-unionized workers were involved, these cases
signal that their right to join together to improve working conditions
is largely illusory. In several cases, intimidating employer statements
made during an organizing campaign were found to be lawful expressions
of employer free speech.[^51] But where employees make statements or
engage in conduct seen as exceeding rules of civility, decorum, or
loyalty, the employees have been held to have lost the protection of the
Act.[^52] These decisions suggest an underlying discomfort with
government regulation of business, the notion of collective action, and
the zeal that may accompany those efforts: the fundamental premises of
this statute.

Although truly meaningful and effective remedies for unfair labor
practices are limited under the Act, the Board nonetheless has refused
to exercise the full remedial discretion it does have. For example, the
Board has been reluctant to pierce the corporate veil to impose
liability for unfair labor practices.[^53] The regular refusal to issue
*Gissel* bargaining orders (which require an employer to recognize a
union with majority support, where the employer's unfair labor practices
have frustrated the election process) is another such example.[^54] So
too is the continuing rejection of the "minority" bargaining order,
where an employer's egregiously unlawful conduct has prevented a union
from establishing majority support.[^55] The Board has also shown no
interest in adopting new modest monetary remedies for victims of
discrimination.[^56] Indeed, the Board's rulings have created new
obstacles to backpay awards.[^57] Decisions about other minor remedial
innovations, such as the electronic posting of required notices to
employees, have been deferred for no compelling reason.[^58]

Some of the Board's recent decisions have failed to survive judicial
scrutiny.[^59] Other decisions have navigated the layers of precedent by
ignoring precedent entirely or by distinguishing earlier cases on
abstract, questionable grounds.[^60] And too many decisions have cast
doubt on precedent unnecessarily, or have applied it reluctantly,
suggesting that the law may soon change, and sowing confusion.[^61] This
kind of decisionmaking is of little use to parties struggling to make
sense of their statutory rights and duties. While it may dispose of
particular cases, it is ultimately unhelpful in shaping a coherent
national labor policy.

Meanwhile, the Board's approach to exercising and preserving its own
authority is contradictory. It has jealously guarded its
representation-case functions (discouraging union attempts to organize
outside the Board's procedures),[^62] while eagerly deferring to dubious
arbitration decisions in unfair labor practice cases (sometimes
frustrating the vindication of statutory rights).[^63]

Perhaps this contradiction can be explained by the Board's orientation
toward protecting employee free choice in the narrow sense: taking
special care to ensure that employees are free to refrain from union
activity and to reject union representation, while showing little
concern about the rights of employees to engage in concerted activity,
to choose (and keep) a union, and to be free from anti-union
discrimination. Several Board decisions have made it more difficult for
unions to organize workers.[^64] As discussed above, the Board has
rolled back protections for "salts," union members who seek employment
to engage in organizing activity.[^65] Other decisions have shown a
disappointing reluctance to confront what clearly seemed to be
whole-scale employer discrimination in hiring.[^66] Tellingly, the Board
has stated expressly, for the first time, that the exercise of employee
free choice is superior in the statutory scheme to the stability of
collective bargaining.[^67] This elevation of one of two competing
ideals in the Act undoes the delicate balance long established in Board
doctrine, and signals a devaluing of what is unique about this statute:
the protection of collective rights.

E.

My testimony today has largely been a reprise of my disagreements with
the Board's majority. Regrettably, the Board is deeply divided. I wish
that the Board were moving the law in a better direction, in harmony
with the goals of the statute. But let me end my testimony by echoing
the remarks that I made at my last swearing-in and by explaining why \--
even being in the minority, and even at a difficult historical moment
\-- I feel honored to serve on the Board and to pursue the values
embodied in our labor law.

Every day, I read cases involving working people who, despite the odds
and the obstacles, join together to improve life on the job. They work
on assembly lines and in cardiac wards, on construction sites and in
mega-stores. They slaughter hogs and drive trucks, clean hotel rooms and
care for the disabled. Sometimes they have unions to help them, but
other times they act spontaneously to help each other --- a reminder
that solidarity is part of who we are. As long as that is the case, then
the values embodied in the Act are living values, even after 71 years.

Whatever its flaws and anachronisms, and whatever the lapses made by the
Board in applying it, the National Labor Relations Act is a remarkable
piece of legislation. At its heart, the Act is a human rights law. No
one in 1935 would have labeled the statute that way, but the label is
accurate. The concept of fundamental rights at work is now part of the
international legal order. Freedom of association and the freedom to
engage in collective bargaining are recognized as core principles of a
democracy. The National Labor Relations Act is the foundation of our
commitment to values now recognized around the world.

Today's labor laws were the product of tremendous struggle. We honor
that struggle when we take the Act seriously, when we enforce it fairly
and thoughtfully, and even when we point out its shortcomings.
Certainly, the Board operates under significant constraints: a judicial,
political and economic climate indifferent or even hostile to collective
bargaining; an arguably antique statute, and a lack of administrative
will. Yet I would suggest that the Board, even under the current
statutory scheme, can play a modest but meaningful role in preserving
the values of this Act and in furthering its aims. Its failure to do
even that is an unfortunate lost opportunity. At a time when union
membership is at a historic low point, and the earnings gap growing,
recent Board decisions are reinforcing trends that imperil collective
bargaining as a national policy goal and that threaten to undo
Congressional assumptions about collective action as a means to redress
economic inequality. Restoring federal labor law to its intended
purposes is obviously no panacea. But it would be a step in the right
direction.

Thank you again for the opportunity to participate in this hearing.

[^1]: *Dana Corp.*, 351 NLRB No. 28, slip op. at 11 (Sept. 29, 2007)
    (dissent).

[^2]: I have addressed this larger issue in an article that is
    forthcoming in the Berkeley Journal of Labor and Employment Law.
    Wilma B. Liebman, *Decline* *and Disenchantment: Reflections on the
    Aging of the National Labor Relations Board*, 28 Berkeley J.
    Employment & Labor L. 569 (2007). I have submitted the article for
    inclusion in the hearing record.

[^3]: The current Board has been, and remains, deeply divided, in cases
    both large and small. The percentage of dissents may be
    unprecedented. In 1984, during what is generally regarded as the
    most contentious period in the Board's recent history -- the tenure
    of Chairman Donald Dotson -- there were dissents in about 17% of all
    cases, counting dissents by any Member of the Board. In comparison,
    during Fiscal Year 2007, Member Dennis Walsh and/or I dissented in
    about 34% of the cases.

[^4]: See references in 28 Berkeley J. Employment and Labor L. at
    570-71.

[^5]: The Board has experienced a dramatic, and unprecedented, decline
    in case filings in the past decade. Between fiscal years 1997 and
    2007, the number of representation petitions filed dropped from
    6,179 to 3,324, a 46% decline. (From 2005 to 2006 alone, the
    representation case intake dropped by 26%.) For the same ten-year
    period, unfair labor practice charges dropped from 33,439 to 22,147,
    a 34% decline.

[^6]: Any person may file an unfair labor practice charge with the
    Board, attacking the union's majority support as unlawfully coerced.
    That procedure may lead the Board to require the employer to
    withdraw recognition from the union.

[^7]: See *Keller Plastics* *Eastern, Inc.*, 157 NLRB 583 (1966); *Sound
    Contractors*, 162 NLRB 364 (1966).

[^8]: *Dana Corp.*, 341 NLRB 1283, 1284 (2004) (dissent).

[^9]: *NLRB v. Lyon & Ryan Ford, Inc.*, 647 F.2d 745, 750 (7th Cir.
    1981), cert. denied, 454 U.S. 894 (1981).

[^10]: 351 NLRB No. 28, slip op. at 17.

[^11]: Notably, the Board has required *unions* to provide employees
    with information related to the required payment of dues. See
    *California Saw & Knife Works*, 320 NLRB 224 (1995), enfd. 133 F.3d
    1012 (7th Cir. 1998).

[^12]: *Wurtland* was decided by a three-Member panel of the Board; I
    did not participate in the decision. I agree with Member Walsh's
    dissenting view, however.

[^13]: Curiously, the *Dana* majority contrasted union authorization
    cards used to win voluntary recognition with an anti-union employee
    petition, asserting that the petition would lead to an election. 351
    NLRB No. 28, slip op. at 6 fn. 19. That assertion is simply wrong,
    as *Wurtland* demonstrates.

[^14]: For another example of this orientation, see the Board's August
    2007 decision in *Shaw's Supermarkets, Inc.,* 350 NLRB No. 55
    (2007). There the Board permitted an employer to withdraw
    recognition from the union after the third year of a five-year
    agreement, even though the employer would not be permitted to file a
    petition for an election at that point, and even though a petition
    for a decertification election filed by employees was pending at the
    Board. In response to my dissent, the majority stated:

    \[T\]his is a case where the employer is responding to an
    unsolicited and uncoerced expression of a loss of majority support
    for the union as a bargaining representative. Our dissenting
    colleague states that we do not seem to believe that that a Board
    election, based on the employee-filed petition, will vindicate
    employee freedom of choice. This is untrue. Rather, our concern is
    that, in the time it takes to ultimately resolve the representation
    case, employees *will be forced to endure representation* that they
    have unquestionably rejected. Id., slip op. at 4-5 (emphasis added).

    The alarm about Board election delays that justified withdrawals of
    recognition in *Shaw's* and *Wurtland* is expressly minimized in
    *Dana.* 351 NLRB No. 28, slip op. at 6-7.

[^15]: *NLRB v. Town & Country Electric, Inc.*, 516 U.S. 85 (1995).

[^16]: The courts have held, notably, that job-applicant testers have
    standing to sue under Title VII of the Civil Rights Act, as Member
    Walsh and I pointed out in our *Toering* dissent. 351 NLRB No. 18,
    slip op. at 16 & fn. 12, citing *Kyles v. J.K. Guardian Security
    Services*, 222 F.3d 289, 300 (7th Cir. 2000).

[^17]: See, for example, Paul C. Weiler, *Promises to Keep: Securing
    Workers' Rights to Self-Organization under the NLRA*, 96 Harv. L.
    Rev. 1769, 1789 (1983).

[^18]: The case was decided by a three-Member panel. I did not
    participate in the decision, but I agree with Member Walsh's
    dissent.

[^19]: *See, e.g.*, *Bath Iron Works Corp*., 345 NLRB No. 33 (2005);
    *Boghosian Raisin Packing Co*., 342 NLRB 333 (2004); *Alexandria
    Clinic*, 339 NLRB 1262 (2003).

[^20]: *New York Univ. Medical Ctr*, 332 NLRB 1205 (2000), *overruled by
    Brown Univ*., 342 NLRB 483 (2004).

[^21]: *Sturgis*, 331 NLRB 1298 (2000), *overruled by* *Oakwood Care
    Ctr*, 343 NLRB 659 (2004).

[^22]: *St. Elizabeth Manor*, 329 NLRB 321 (1999), *overruled by* *MV
    Transp*., 337 NLRB 770 (2002).

[^23]: *Epilepsy Found*., 331 NLRB 676 (2000), *overruled by IBM Cor*p.
    341 NLRB No. 148 (2004).

[^24]: *See, e.g.*, *Dana Corp*., 351 NLRB No. 28 (2007) (establishing
    window period for filing decertification petition, following
    employer's voluntary recognition of union); *Shaw's Supermarkets*,
    343 NLRB 963 (2004) (granting review to consider whether employer
    waived right to Board election, and whether to permit such waiver
    with respect to after-acquired stores where union demonstrates
    majority support). *See also* *Supervalu, Inc*., 351 NLRB No. 41
    (2007) (holding that contract provision requiring employer to
    recognize union at newly-organized stores was not mandatory subject
    of bargaining, absent proof that stores would be included in
    existing bargaining unit); *Marriott Hartford*, 347 NLRB No. 87
    (2006) (granting review to consider whether union had demanded
    voluntary recognition, permitting employer to file election petition
    with Board, where union sought agreement for card-check
    recognition).

[^25]: ? *Nott Co*., 345 NLRB No. 23 (2005) (permitting employer to
    withdraw recognition from union and repudiate collective-bargaining
    agreement, following employer's acquisition of non-union business
    and consolidation of union and non-union workforces of equal size).

[^26]: *Airborne Freight Co*., 338 NLRB 597 (2002) (declining to revisit
    current standard for determining joint-employer status, which
    requires direct and immediate control over matters relating to
    employment relationship).

[^27]: *Frito-Lay*, 341 NLRB 515 (2004) (following precedent that
    permits employer "ride-alongs" in which employer officials accompany
    truck drivers for up to 12 hours in order to campaign against
    union).

[^28]: *Elmhurst Care Ctr*., 345 NLRB No. 98 (2005) (continuing to
    prohibit employer from voluntarily recognizing union where employer
    has hired core group of employees, but is not yet engaged in normal
    business operations).

[^29]: *Reynolds Electric, Inc.*, 342 NLRB 156 (2004) (continuing to
    apply rule that discharge of employee for engaging in concerted
    protected activity is lawful, absent showing that employer was aware
    of concerted nature of activity).

[^30]: 348 NLRB No. 37 (2006).

[^31]: 532 U.S. at 706.

[^32]: 348 NLRB No. 37, slip op. at 3.

[^33]: There are two notable exceptions to this trend: the decision to
    extend the Act's coverage to casinos on tribal reservations, *San
    Manuel Indian Bingo & Casino*, 341 NLRB 1288 (2004), *enforced*, 475
    F.3d 1306 (D.C. Cir. 2007), and the decision rejecting the creation
    of a novel national-security exemption for private airport security
    screeners, *Firstline Transp. Security, Inc.*, 347 NLRB No. 40
    (2006).

[^34]: *Brown Univ*., 342 NLRB 483 (2004) (holding that educational
    relationship is not employment).

[^35]: *Brevard Achievement Cnt*., 342 NLRB 982 (2004) (holding that
    rehabilitative relationship was not employment).

[^36]: *Pa. Acad*., 343 NLRB 846 (2004) (holding that models were
    independent contractors).

[^37]: *St. Joseph News-Press*, 345 NLRB No. 341 (2005) (holding that
    carriers were independent contractors).

[^38]: *Oakwood Care Ctr*., 343 NLRB 659 (2004).

[^39]: 348 NLRB No. 37.

[^40]: *See, e.g.*, *Waters of Orchard Park*, 341 NLRB No. 93 (2004)
    (two nurses who phoned a state hotline to report excessively hot
    conditions in a nursing home were not engaged in protected activity
    because their call was made in the interest of patient care, not
    their own terms and conditions of employment); *Holling Press*, 343
    NLRB 301 (2004) (one female worker who sought the assistance of
    another in her sexual harassment charge against a male supervisor
    was looking out only for herself and not engaged in activity for
    mutual aid or protection).

[^41]: 341 NLRB 1288 (2004).

[^42]: 331 NLRB 676 (2000), *enfd. in relevant part*, 268 F.2d 1095
    (D.C. Cir. 2001).

[^43]: The majority justified its action by citing changes in the
    workplace, and, among other things, "the events of September 11,
    2001, and their aftermath." 341 NLRB at 1291. In response, the *New
    York City Bar Association* issued a highly-critical position paper,
    which observed that "\[t\]o rely on such events in determining the
    rights of employees under the National Labor Relations Act distorts
    the legitimate decision making process and injects political
    considerations into a matter of statutory construction." *See New
    York City Bar Association*, Media Advisory, *The New York City Bar
    Association Opposes NLRB Decision To Rely on the Terrorism Threat as
    a Reason to Deny Non-Union Employees The Right to Have A
    Representative Present During Disciplinary Interviews* (Oct. 20,
    2004); *available at*
    http://www.abcny.org/PressRoom/PressRelease/2004_10_20.htm.

[^44]: *See, e.g.*, *Phoenix Processor*, 348 NLRB No. 4 (2006)
    (unrepresented workers on fish-processing ship engaged in walk-out
    to protest 16 ½- hour day; discharge upheld relying on anti-mutiny
    statute); *Quietflex Mfg. Co*., 344 NLRB No. 130 (2005)
    (unrepresented workers engaged in 12-hour protest in employer's
    parking lot, but did not interfere with access or operations;
    discharge upheld).

[^45]: *Johnson Tech., Inc.*, 345 NLRB No. 47 (2005) (finding lawful
    employer's warning to employee who used scrap paper to replace
    union-meeting notice that probably had been removed by management
    official).

[^46]: Deference to such prerogatives is illustrated by a series of
    decisions upholding the refusal of employers to provide unions with
    requested information. *See, e.g.*, *Raley's Supermarkets*, 349 NLRB
    No. 7 (2007) (dismissing allegation that employer unlawfully refused
    to provide union with requested information related to grievance
    involving employer investigation of alleged supervisory harassment);
    *Northern Indiana Public Serv. Co*., 347 NLRB No. 17 (dismissing
    allegation that employer unlawfully refused to provide union with
    investigatory interview notes involving alleged threat of violence
    by supervisor); *Borgess Med. Ctr*, 342 NLRB 1105 (2004) (refusing
    to order employer's disclosure of hospital incident reports, despite
    finding that refusal to provide reports to union was unlawful).

[^47]: *See, e.g.*, *Bunting Bearings Corp.*, 343 NLRB 479 (2004)
    (finding business justification for partial lockout limited to union
    members in bargaining unit), *petition for review granted*, 179 Fed.
    App'x. 61 (D.C. Cir. 2006); *Midwest Generation, EME, LLC*, 343 NLRB
    12 (2004) (finding business justification for partial lockout based
    on extent of employees' participation in strike), *petition for
    review granted*, 429 F.3d 651 (7th Cir. 2005).

[^48]: *See, e.g.*, *American Steel Erectors, Inc*., 339 NLRB 1315
    (2003) (finding that employer lawfully refused to hire former union
    employee who had criticized employer's job-safety record before
    state agency); *PPG Industries, Inc*., 337 NLRB 1247 (2002) (finding
    that employer lawfully disciplined employee who used vulgarity in
    characterizing employer's conduct toward co-worker being solicited
    to sign union card). *See also* *Fineberg Packing Co.*, 349 NLRB No.
    29 (2007) (finding that employer did not condone unlawful walkout by
    employees, despite manager's statement to employees that he was not
    firing anyone and that employees should "come back tomorrow").

[^49]: *See, e.g.*, Al*addin Gaming, LLC*, 345 NLRB No. 41 (2005)
    (finding lawful a management official's interruption of off-duty
    employees' conversation about signing union authorization cards);
    *Werthan Packaging, Inc*., 345 NLRB No. 30 (2005) (finding no
    objectionable election conduct where manager interrogated employee
    and stated that voting for union was not in best interests of
    employee and her family).

[^50]: *See, e.g.*, *Garden Ridge Mgmt., Inc*., 347 NLRB No. 13 (2006)
    (dismissing allegation of surface-bargaining by employer and
    permitting withdrawal of union recognition), *on motion for
    reconsideration*, 349 NLRB No. 103 (2007) (denying General Counsel's
    motion for reconsideration); *Richmond Times-Dispatch*, 345 NLRB No.
    11 (2005) (finding that employer did not claim inability to pay
    bonus and so lawfully refused to provide financial information to
    union, following employer's claim that it was "unable to pay" annual
    bonus and had "no choice" but to cancel bonus); *Sea Mar Cmty.
    Health Ctrs*., 345 NLRB No. 69 (2005) (finding no violation in
    employer's refusal to bargain over closure of operation that was
    established by official without approval by upper management).

[^51]: *See, e.g.*, *Medieval Knights, LLC*, 350 NLRB No. 17 (2007)
    (finding that consultant's statement that hypothetical employer
    could lawfully "stall out" contract negotiations was not threat that
    electing union would be futile); *TNT Logistics No. Am., Inc.*, 345
    NLRB No. 21 (2005) (finding that supervisor's unsupported statement
    that employer would lose only customer if employees unionized was
    lawful expression of personal opinion); *Manhattan Crowne Plaza Town
    Park Hotel Corp*., 341 NLRB 619 (2004) (finding that employer's
    statement recounting mass discharge of recently-unionized employees
    at another employer's hotels was not threat of reprisal); *Curwood,
    Inc.*, 339 NLRB 1137 (2003) (finding that employer's letter stating
    that customers viewed unionization negatively was lawful).

[^52]: *See, e.g*., *Five Star Transportation, Inc*., 349 NLRB No. 8
    (2007) (upholding employer's refusal to hire school bus drivers,
    employed by prior contractor, who had criticized employer in letters
    to school board).

[^53]: *See, e.g.*, *Flat Dog Productions, In*c*.*, 347 NLRB No. 104
    (2006). In one recent glaring example, the Board majority refused to
    pierce the corporate veil to hold corporate co-owners personally
    liable for backpay obligations to employees who suffered financial
    consequences of flagrant unfair labor practices. By the time of the
    backpay proceedings, the co-owners had distributed all of the
    company's funds to themselves. The Board majority held, however,
    that because the distributions occurred before the unfair labor
    practice charges were filed, the distributions did not constitute an
    evasion of the company's legal obligations. *A.J. Mechanical, Inc.*,
    345 NLRB No. 22 (2005). The United States Court of Appeals for the
    District of Columbia Circuit disagreed, stating bluntly:

    Surely, it is reasonable to infer that a thief who robs a bank in
    broad daylight knows well before the date of his indictment that he
    may one day face criminal liability. The corporate conduct at issue
    here is the labor-law equivalent of a daylight robbery. It was
    neither subtle nor close to the line of legality.

    *Carpenters and Millwrights, Local Union 2471* v. NLRB, 481 F.3d 804
    (D.C. Cir. 2007). See also *US Reinforcing, Inc*., 350 N.L.R.B. No.
    41 (2007) (refusing to find that two companies were alter egos,
    where principals co-habited but were not married).

[^54]: *See, e.g.*, *Hialeah Hospital*, 343 NLRB 391 (2004).

[^55]: *First Legal Support Services*, 342 NLRB 350 (2004).

[^56]: *Hotel Employees, Local 26*, 344 NLRB No. 70 (2005) (declining to
    order "tax compensation" remedy for victim of discrimination who
    incurs heightened tax burden as result of receiving lump sum backpay
    award).

[^57]: *St. George Warehouse*, 351 NLRB No. 42 (2007) (reversing
    precedent and placing burden on General Counsel to produce evidence
    concerning discriminatee's job search, when employer demonstrates
    availability of jobs), and *Grosvenor Resort*, 350 NLRB No. 86
    (2007) (denying backpay to discriminatees for not seeking work
    quickly enough and for not seeking interim employment while waiting
    for previously secured interim employment to commence), discussed
    more fully above. See also *Anheuser-Busch, Inc*., 351 NLRB No. 40
    (2007) (reversing precedent and holding that employees discharged
    based on information from unlawfully-installed security cameras are
    not entitled to remedy); *Aluminum Casting & Engineering Co*., 349
    NLRB No. 18 (2007) (denying employees full backpay for unlawfully
    withheld wage increase); *Georgia Power Co*., 341 NLRB 576 (2004)
    (denying employee unlawfully withheld promotion because General
    Counsel failed to prove that employee "certainly" would have been
    promoted).

[^58]: *Nordstrom, Inc*., 347 NLRB No. 28 (2006).

[^59]: *See* *Jochims* v. *NLRB*, 480 F.3d 1161, 1164 (D.C. Cir. 2007)
    (reversing Board's finding of supervisory status, observing that
    "the Board completely deviated from its own precedent and issued a
    judgment that is devoid of substantial evidence"); *Guardsmark, LLC*
    v. *NLRB*, 475 F.3d 369 (D.C. Cir. 2007) (reversing Board's finding
    that employer's anti-fraternization rule was lawful); *United Steel
    Workers* v. *NLRB*, 179 Fed. Appx. 61 (D.C. Cir. 2006) (remanding,
    as inconsistent with precedent, Board's finding that partial lockout
    was non-discriminatory, and observing that it was "not appropriate"
    for Board to "speculate" as to employer's motive for lockout, given
    employer's burden of proof); New *England Health Care Employees
    Union* v. *NLRB*, 448 F.3d 189, 193 (1st Cir. 2006) (reversing
    Board's "arbitrary and capricious" determination that employer
    lawfully refused to reinstate economic strikers, based on secret
    hiring of permanent replacements); *International Chemical Workers
    Union Council v. NLRB*, 447 F.3d 1153 (9th Cir. 2006) (reversing,
    based on lack of substantial evidence, Board's determination that
    employer did not plead inability to pay and thus lawfully refused to
    provide financial information to union during bargaining); *Slusher*
    v*. NLRB*, 432 F.3d 715 (7th Cir. 2005) (reversing Board's
    determination that employer lawfully discharged union steward for
    purportedly harassing anti-union employee); *Local 15, Int'l Bhd. of
    Electrical Workers* v. *NLRB*, 429 F.3d 651 (7th Cir. 2005)
    (reversing Board's determination that partial lockout was
    non-discriminatory and remanding with instructions to find lockout
    unlawful); *Brewers & Maltsters, Local Union No. 6* v. *NLRB*, 414
    F.3d 36 (D.C. Cir. 2005) (reversing, based on conflict with
    precedent, Board's refusal to grant make-whole remedy to employees
    disciplined as result of employer's unlawful installation of
    surveillance cameras).

[^60]: *See, e.g.*, *Bath Iron Works*, 345 NLRB No. 33 (2005), *enf'd*.,
    475 F.3d 14 (1st Cir. 2006) (dissenting opinion) (implicating
    "competing analytical approaches where an employer claims the right
    to act unilaterally with respect to a mandatory subject of
    bargaining, based on language in a collective-bargaining
    agreement").

[^61]: *See, e.g.*, *American Red Cross Missouri-Illinois Blood Services
    Region*, 347 NLRB No. 33 n. 21 (2006); *Construction Products,
    Inc.*, 346 NLRB No. 60 n. 1 (2006); *Siemens Building Tech*., 345
    NLRB No. 91 n. 5 (2005); *Vanguard Fire & Supply Co., Inc.*, 345
    NLRB No. 77 n. 9 (2005); *Daimler-Chrysler Corp*., 344 NLRB No. 154
    fn. 1 (2005); *Contract Flooring Systems, Inc.*, 344 NLRB No. 117 at
    1 (2005); *Meijer, Inc.*, 344 NLRB No. 115 n. 7 (2005).

[^62]: *See, e.g*., *Boeing Co.*, 349 NLRB No. 91 (2007); *Advanced
    Architectural Metals, Inc.*, 347 NLRB No. 111 (2006); *United States
    Postal Serv*., 383 NLRB. No. 3 (2006).

[^63]: *See, e.g*., *Kvaerner Phila. Shipyard, Inc.*, 347 NLRB No. 36
    (2006); *Smurfit-Stone Container Corp.*, 344 NLRB No. 82 (2005);
    *Aramark Services, Inc.*, 344 NLRB No. 68 (2005).

[^64]: *Teamsters Local 75* (*Schreiber Foods*), 349 NLRB No. 14 (2007)
    (finding that union unlawfully charged objecting non-members for
    organizing expenses, where union failed to prove that organizing
    within same industry leads to increased union wage rates); *Randell
    Warehouse, Inc.*, 347 NLRB No. 56 (2006) (reversing Clinton Board
    precedent and finding that union's videotaping of
    campaign-literature distribution was objectionable); *Harborside
    Healthcare, Inc.*, 343 NLRB 906 (2004) (reversing precedent and
    liberalizing standard for finding pro-union supervisory conduct
    objectionable in context of representation elections). *See also*
    *Correctional Medical Services, Inc*., 349 NLRB No. 111 (2007)
    (upholding discharge of unrepresented employees who picketed
    health-care employer, based on union's failure to provide
    statutorily-required advance notice).

[^65]: See *Toering Electric Co*., 351 NLRB No. 18 (2007) (requiring
    General Counsel to prove that salt is genuinely interested in
    employment with employer, to establish violation in
    hiring-discrimination case); *Oil Capitol Sheet Metal, Inc*., 349
    NLRB No. 118 (2007) (reversing judicially-approved precedent and
    requiring General Counsel to establish duration of remedial period
    for salts).

[^66]: *Zurn/N.E.P.C.O.*, 345 NLRB No. 1 (2005), *petition for rev.
    denied*, *Northern Michigan Bldg. & Const. Trades Council* v.
    *NLRB*, 2007 WL 1805667 (6th Cir. June 20, 2007).

[^67]: ? *Nott Co*., 345 NLRB No. 23 (2005) ("\[A\]lthough industrial
    stability is an important policy goal, it can be trumped by the
    statutory policy of employee free choice. That policy is expressly
    in the Act, and indeed lies at the heart of the Act."). For
    illustration of the consequences of this orientation, see *Dana
    Corp*, supra; *Shaw's Supermarkets, Inc*., 350 NLRB No. 55
    (2007)(permitting employer to withdraw recognition from union after
    third year of five-year agreement, even though petition for election
    could not be filed); *Badlands Golf Course*, 350 NLRB No. 28 (2007)
    (permitting employer to withdraw recognition from union less than
    three weeks after minimum six-month period of insulated bargaining,
    following earlier unlawful withdrawal of recognition).