U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

64–230 PDF 2011

EMERGING TRENDS AT THE 

NATIONAL LABOR RELATIONS BOARD 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, FEBRUARY 11, 2011 

Serial No. 112–4 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: 

http://www.gpoaccess.gov/congress/house/education/index.html 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

[Vacant] 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Barrett Karr, Staff Director 

Mark Zuckerman, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Robert E. Andrews, New Jersey 

Ranking Minority Member 

Dennis J. Kucinich, Ohio 

David Loebsack, Iowa 

Dale E. Kildee, Michigan 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 
(III) 

C O N T E N T S 

Page 

Hearing held on February 11, 2011 ....................................................................... 1 

Statement of Members: 

Andrews, Hon. Robert E., ranking minority member, Subcommittee on 

Health, Employment, Labor and Pensions ................................................. 3 

Additional submissions for the record: 

Federal Register Notice, Dec. 16, 1949, 14 FR 7516 ....................... 76 

Letter, dated Feb. 25, 2011, from Lafe Solomon, National Labor 

Relations Boards (NLRB), including additional materials .......... 79 

NLRB letter, dated Nov. 26, 2003, sent to attorney general, 

State of North Dakota .................................................................... 122 

NLRB letter, dated Feb. 25, 2011, sent to Chairman Roe .............. 125 

Roe, Hon. David P., Chairman, Subcommittee on Health, Employment, 

Labor and Pensions ...................................................................................... 1 

Prepared statement of ............................................................................... 3 

Statement of Witnesses: 

Estlund, Cynthia L., Catherine A. Rein professor of law, New York University School of Law .................................................................................... 18 

Prepared statement of ............................................................................... 20 

King, G. Roger, partner, Jones Day ................................................................ 27 

Prepared statement of ............................................................................... 30 

Additional submissions: Exhibits B, C and D ......................................... 30 

Miscimarra, Philip A., senior fellow, the Wharton School, University of 

Pennsylvania; partner, Morgan Lewis & Bockius LLP ............................. 6 

Prepared statement of ............................................................................... 7 

Rosenfeld, Arthur F., former National Labor Relations Board general 

counsel ........................................................................................................... 14 

Prepared statement of ............................................................................... 16 

(1) 

EMERGING TRENDS AT THE 

NATIONAL LABOR RELATIONS BOARD 

Friday, February 11, 2011 

U.S. House of Representatives 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and the Workforce 

Washington, DC 

The subcommittee met, pursuant to call, at 10:00 a.m., in room 

2175, Rayburn House Office Building, Hon. Phil Roe [chairman of 

the subcommittee] presiding. 

Present: Representatives Roe, Thompson, Walberg, DesJarlais, 

Rokita, Bucshon, Barletta, Noem, Roby, Heck, Ross, Andrews, 

Kucinich, Loebsack, Kildee, Hinojosa, McCarthy, Tierney, Holt, and 

Scott. 

Also Present: Representative Kline. 

Staff Present: Kirk Boyle, General Counsel; Ken Serafin, Workforce Policy Counsel; Marvin Kaplan, Professional Staff Member; 

Loren Sweatt, Professional Staff Member; Joseph Wheeler, Professional Staff Member; Casey Buboltz, Coalitions and Member Services Coordinator; Ed Gilroy, Director of Workforce Policy; Ryan 

Kearney, Legislative Assistant; Brian Newell, Press Secretary; 

Molly McLaughlin Salmi, Deputy Director of Workforce Policy; 

Linda Stevens, Chief Clerk/Assistant to the General Counsel; 

Aaron Albright, Minority Deputy Communications Director; 

Tylease Alli, Minority Hearing Clerk; Daniel Brown, Minority Staff 

Assistant Jody Calemine, Minority General Counsel; Denise Forte, 

Minority Director of Education Policy; Brian Levin, New Media 

Press Assistant; Celine McNicholas, Minority Labor Counsel; Richard Miller, Minority Senior Labor Policy Advisor; Megan O’Reilly, 

Minority Labor Counsel; Julie Peller, Minority Deputy Staff Director; Meredith Regine, Minority Policy Associate, Labor; Michele 

Varnhagen, Minority Chief Policy Advisor and Labor Policy Director; and Mark Zuckerman, Minority Staff Director. 

Chairman ROE. I call the meeting to order. Good morning everyone. Let me take a moment to welcome my colleagues to our first 

subcommittee hearing of the 112th Congress. This subcommittee 

covers a broad range of programs and policies that have a direct 

impact on the lives of millions of workers and their families. There 

are a number of challenges facing the American workforce, including high unemployment and rising health care costs. Both will be 

at the forefront of our subcommittee’s agenda in the weeks and 

months ahead. 
2 

I look forward to working with our senior Democratic member, 

Rob Andrews, who brings his own depth of knowledge and ideas to 

these critical issues. I know we will work together in areas where 

we can find common ground and where we can’t, I hope we are able 

to reflect upon this committee and uphold our long tradition of 

agreeing to be agreeable without being disagreeable. 

I would also like to thank or witnesses for taking time out of 

their busy schedules for being with us today and as always, our 

witnesses provide important insight and expertise on the issues 

this subcommittee addresses, and we are grateful all of you are 

here today to share your views with us. 

As we begin the work of this subcommittee, we are mindful that 

for 21 consecutive months, unemployment in this country has been 

at or above 9 percent. The Department of Labor reports nearly 14 

million workers are unemployed. Business leaders, and especially 

small business owners express concerns about the uncertainty they 

face and the politics out of Washington that continue to exacerbate 

that uncertainty. That is why today’s discussion about the National 

Labor Relations Board is so important. 

The NLRB was created more than 75 years ago to perform two 

functions: First, to determine by free democratic choice whether 

workers desire union representation and if so, by which union; and 

second, to prevent and remedy unfair labor practices by employers 

and unions. The Board serves as a quasi judicial body. Its five 

members are chosen by the President, and the majority of members 

share the President’s views on labor policy. As a result, the Board 

has generated a lot of debate over the years. However, that debate 

has recently been elevated to new heights since the Board has 

abandoned its traditional sense of fairness and neutrality and instead embraced a far more activist approach. 

Numerous actions by the Board suggest it is eager to tilt the 

playing field in favor of powerful special interests against the interests of rank and file workers. 

Last August, the Board decided to weaken protections for employers by redefining secondary boycotts allowing unions to banner 

in front of neutral employers. During that same month, the Board 

expanded its jurisdiction beyond what some argue is defined in the 

law asserting its authority over religious institution’s child care 

centers. It also has moved to restrict free speech rights of employers as well as increase employer penalties. 

Recently, it threatened legal action against a number of States 

that tried to protect workers’ rights to a secret ballot. And it has 

signaled an interest in revising a decision critical to preserving the 

sanctity of the secret ballot. 

The Board plays an important role in the strength of our workforce. At a time of high unemployment, every agency, department 

and board of the Federal Government must set its own agenda 

aside and work toward accomplishing the agenda mandated by the 

American people. Getting this economy back on track and getting 

the employed back to work, I hope today’s hearing will help determine whether the NLRB is a partner in that effort. 

I would like now to yield to Mr. Andrews and ranking member 

for his opening comments, and I think Mr. Andrews needs to move 

over to the House floor so I will yield to the ranking member. 
3 

[The statement of Mr. Roe follows:] 

Prepared Statement of Hon. David P. Roe, Chairman, Subcommittee on 

Health, Employment, Labor and Pensions 

Good morning everyone. Allow me to take a moment to welcome my colleagues 

to our first subcommittee hearing of the 112th Congress. 

This subcommittee covers a broad range of programs and policies that have a direct impact on the lives of millions of workers and their families. There are a number of challenges facing the American workforce, including high unemployment and 

rising health care costs. Both will be at the forefront of our subcommittee’s agenda 

in the weeks and months ahead. 

I look forward to working with our ranking Democratic member, Rob Andrews, 

who brings his own depth of knowledge and ideas to these critical issues. I know 

we will work together in areas where we can find common ground, and where we 

can’t, I hope we are able to reflect well upon this subcommittee and uphold our long 

tradition of disagreeing without being disagreeable. 

I would also like to thank our witnesses for taking time out of their busy schedules to be with us today. As always, our witnesses provide important insight and 

expertise on the issues this subcommittee addresses, and we are grateful that you 

all are here today to share your views with us. 

As we begin the work of this subcommittee, we are mindful that for 21 consecutive months unemployment has been at or above 9 percent. The Department of 

Labor reports nearly 14 million workers are unemployed. Business leaders—and especially small business owners—express concerns about the uncertainty they face 

and the policies out of Washington that continue to exacerbate that uncertainty. 

That is why today’s discussion about the National Labor Relations Board is so important. The NLRB was created more than 75 years ago to perform two functions: 

first, to determine by free democratic choice whether workers desire union representation and if so, by which union; and second, to prevent and remedy unfair labor 

practices by employers and unions. 

The board serves as a quasi-judicial body. Its five members are chosen by the 

President and the majority of members share the President’s views on labor policy. 

As a result, the board has generated a lot of debate over the years. However, that 

debate has recently been elevated to new heights since the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist 

approach. 

Numerous actions by the board suggest it’s eager to tilt the playing field in favor 

of powerful special interests against the interests of rank-and-file workers. 

Last August, the board decided to weaken protections for employers by redefining 

secondary boycotts, allowing unions to banner in front of neutral employers. 

During that same month, the board expanded its jurisdiction beyond what some 

argue is defined in the law, asserting its authority over a religious institution’s child 

care centers. 

It has also moved to restrict the free speech rights of employers, as well as increase employer penalties. Recently it threatened legal action against a number of 

states that tried to protect workers’ right to a secret ballot. And it has signaled an 

interest in revisiting a decision critical to preserving the sanctity of the secret ballot. 

The board plays an important role in the strength of our workforce. At a time of 

high unemployment, every agency, department, and board of the federal government 

must set its own agenda aside and work toward accomplishing the agenda mandated by the American people—getting this economy back on track and unemployed 

workers back to work. I hope today’s hearing will help determine whether the NLRB 

is a partner in that effort. 

I would like to now yield to Mr. Andrews, the ranking member, for his opening 

remarks. 

Mr. ANDREWS. Well, thank you, Mr. Chairman, good morning. 

Congratulations on your election to the chairmanship of this subcommittee, and thank you for the gentile and open spirit with 

which you conduct yourself with your colleagues. You are a very 

well respected person, not just around this committee, but around 

the Congress, and I look forward to working with you. I appreciate 

very much your contributions to our institution. 
4 

I would like to thank the witnesses for their preparation and testimony this morning. I hope that we will learn a lot by listening 

to you. 

As we meet this morning, there are 15 million Americans officially unemployed. And I don’t think any of us have lived through 

a time as difficult as this one in the U.S. economy for our neighbors 

and for our friends and for many of our own families. 

I think that the American people have sounded a clarion call for 

us to put aside our differences and work together to try to fix this 

underlying economic problem. And it is for that reason that I don’t 

think that this is the most productive use of the committee or the 

Congress’ time. The operating hypothesis for this hearing, as my 

friend just stated, is that the National Labor Relations Board has 

‘‘abandoned its sense of fairness and neutrality,’’ and embarked on 

a ‘‘activist agenda.’’ 

The evidence for that proposition appears to rest on three points: 

The first is that there are a host of controversial decisions that 

have emanated from the Board in recent months which are shaking 

the American economy. 

I find that to be a curious conclusion given the fact that since 

the Board was fully reconstituted with a quorum in April of 2010, 

83 percent of its decisions have been unanimous. To put that in 

some historic context, during the Bush years, the percentage of 

NLRB decisions that were unanimous was 67 percent. So if the 

standard for abandoning fairness and neutrality is the number of 

controversial decisions, it looks like there has been more fairness 

and neutrality, not less, in recent decisions of the Board. 

The second piece of evidence appears to be that the Board has 

embarked on an admittedly unusual but certainly not unprecedented practice of promulgating rules. Most of the decisions, as the 

witnesses will educate us, of the NLRB are made by adjudication 

of decisions before the Board rather than by rulemaking. The rule 

that has triggered today’s hearing is a rule which essentially says 

that employers have to download from a computer a poster and put 

it on their bulletin board. The poster says, here are your rights as 

a worker. If you want to join a union, here are your rights vis-avis your employer, and if you are in a union and you think that 

your union has done something illegal to you, here is your rights 

against your union. 

So the activism that has bred this morning’s activities consist of 

employers being required to download a poster and put it on their 

bulletin board. 

Frankly, the activism that I think that we would need would be 

a bipartisan discussion on how to create jobs in the country, not 

avoid something as relatively modest as that. 

And then the third piece of evidence is that the Board has made 

evidently a series of decisions with which the majority disagrees. 

Well, I would submit that the majority has three remedies if it disagrees with the substance of the Board’s decision. The first is a political remedy. Obviously, there will be a Presidential election in 

2012, and the voters will decide whom the occupant of the White 

House should be that should make decisions to nominate for advise 

and consent by the Senate members of the Board. And the public 

will work its will. 
5 

The second remedy for any perceived decision of the Board that 

is incorrect is judicial. If a party is aggrieved by a decision of the 

National Labor Relations Board, it has the right to go to the Court 

of Appeals and have the courts of this country decide whether the 

Board acted within its purview or outside of its purview. 

And then the third remedy is legislative. If, in fact, the committee feels that there has been some interpretation of the labor 

laws which is harmful to the economy, the committee has within 

its jurisdiction and authority the ability to file a bill, have hearings, mark up the bill, put it up for a vote on the House floor and 

the Senate floor and see if the President will sign it. 

So it strikes me that what we are doing here this morning really 

refutes the principle or the hypothesis that the Board has abandoned its sense of fairness and neutrality. I think that what is 

more accurate is that the majority has abandoned its promise to 

quote, focus like a laser beam on the problem of unemployment. 

And so rather than focusing on these matters this morning, it 

would be our view that we should work together to try to create 

jobs as I am sure we will be able to work together on many issues 

in the future. 

Again, I congratulate the chairman. I thank him for his time. Let 

me apologize to the witnesses in advance for one thing. Our committee is now responsible for time on the House floor for the resolution before the House today, and I am required to be there for a 

few minutes to participate in that. My departure is by no means 

a reflection of my lack of interest in your testimony. I have read 

your statements, and I will be back as soon as I can. I thank the 

chairman for that. 

Chairman ROE. I thank the ranking member for his opening comments. 

Pursuant to committee rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. And without objection, the hearing record will remain open for 14 days to allow such statements and other extraneous materials referenced during the hearing to be submitted for 

the official hearing record. I appreciate all the witnesses being 

here. 

It is now my pleasure to introduce this distinguished panel to the 

committee. 

Mr. Philip Miscimarra is a partner with Morgan Lewis’s labor 

and employment practice, a senior fellow at the University of Pennsylvania’s Wharton Business School and managing director of the 

Wharton Center for Human Resources Research Advisory Group. 

He received his B.A. degree from Duquesne University and his J.D. 

and MBA from the University of Pennsylvania. And thank you for 

being here. 

Mr. Arthur Rosenfeld is a former National Labor Relations Board 

general counsel. Mr. Rosenfeld served as NLRB general counsel 

from of June 2001 to June 2005. And prior to that, Mr. Rosenfeld 

was senior Republican labor counsel in the Senate Health, Education, Labor, Pensions Committee. Mr. Rosenfeld received his B.A. 

degree from Muhlenberg College in Allentown, Pennsylvania, his 

MBA in labor relations from Lehigh University and his J.D. from 

Villanova. Thank you for being here. 
6 

Ms. Cynthia Estlund is professor of law at the New York University School of Law. And prior to joining the faculty at NYU Law, 

she filled multiple positions at the University of Texas Law and 

Columbia Law School, finally serving as vice dean for research. She 

received her B.A. in government from Lawrence University and 

J.D. from Yale Law School. 

Mr. Roger King is partner in Jones Day. Mr. King represents 

management in matters arising under the National Labor Relations Act. Prior to his work in the private sector, Mr. King was 

labor relations counsel for Senator Robert Taft. He is a graduate 

of Miami University and his J.D. from Cornell University. Thank 

you for being here Mr. King. 

The lights, as you all have been here probably many times before, the green light is 5 minutes, and I am going to try to keep 

my comments to 5 minutes. When the light in the center comes on, 

you have got 1 minute, and I won’t cut you off in mid sentence, but 

we are going to hold to the 5-minute rule fairly closely. I would appreciate the members doing the same thing. 

I would like again to thank the witnesses for taking time to testify today. 

And I would appreciate now, Mr. Miscimarra, if you would begin 

with your testimony. 

STATEMENT OF PHILIP MISCIMARRA, PARTNER, MORGAN, 

LEWIS & BOCKIUS LLP 

Mr. MISCIMARRA. Chairman Roe, Ranking Member Andrews and 

subcommittee members, thank you for your invitation to participate in this hearing. It is an honor to appear before you today. 

My name is Philip Miscimarra. I am a senior fellow at the University of Pennsylvania’s Wharton School in the Wharton Center 

for Human Resources. I am also a partner in the law firm Morgan, 

Lewis and Bockius. 

The National Labor Relations Act centers around a bargaining 

model where each side’s leverage largely stems from economic damage it may inflict on the other side. In a global economy, this places 

unions and companies in a relay race. And all too often in the 

United States, the unions incentive is to use the baton to injure the 

employer instead of running the race. Companies and employees 

and unions suffer from this conflict, especially small businesses. 

Expanding the Act’s coverage and making the weapons more destructive without direction from Congress to do so runs counter to 

the Act’s primary objective, which is to foster economic stability. 

The NLRA incorporates many Congressional policy decisions. 

First, the Act reflects fundamental choices by Congress in a balancing of interests between employers, unions, employees and the 

public. 

Second, the Act was adopted for the overriding purpose of eliminating burdens on commerce. Third, a basic policy of the Act is to 

achieve stability of labor relations. Fourth, another important policy decision involves the Act’s secondary boycott provisions which 

protect neutral parties from labor disputes. 

The NLRB is charged with the difficult and delicate responsibility of administering the Act. I respect the members of the Board, 

its acting general counsel and others who work in the agency. The 
7 

work of the NLRB is not easy, and it is fraught with controversy. 

At the same time, there are definite limits on the Board’s authority. Recent board decisions raise questions concerning the congressional policy choices that I have mentioned. I will briefly discuss 

three lines of cases. 

First, in several decisions, the Board has concluded it is not coercion or picketing when multiple union supporters hold 20-foot long 

banners directed at neutral companies. This effectively eliminates 

the Act’s secondary boycott protection for neutrals, even though it 

would violate the Act if the same number of people walked around 

carrying smaller signs within the same area. In these banner cases, 

there are well-reasoned dissenting opinions by former Member 

Shaumber and current Member Hayes. 

In another decision, Dana Corporation, the Board, with member 

Hayes dissenting, upheld a written agreement which spelled out 

employment terms for unrepresented employees at nonunion facilities with most of the terms to take effect after the union received 

future card check recognition. Section 8(f) of the Act permits these 

non-majority agreements, but only in the construction industry. 

This is another area where policy changes should originate in Congress. 

Finally, recent board decisions include New York University 

where a two-member plurality reinstated a representation petition 

covering college graduate assistance, again, laying a foundation for 

changing existing law and expanding the Act’s coverage. 

I will close by quoting a statement of the Supreme Court made 

more than 50 years ago which remains relevant today. It is suggested here that the time has come for a re-evaluation of the basic 

content of collective bargaining as contemplated by the Federal legislation. But that is for Congress. Congress has demonstrated its 

capacity to adjust the Nation’s labor legislation to what in its legislative judgment constitutes the statutory pattern appropriate to the 

developing state of labor relations in this country. We do not see 

how the Board can do so on its own. 

This concludes my prepared testimony. I look forward to any 

questions members of the subcommittee may have and thank you. 

Chairman ROE. Thank you. 

[The statement of Mr. Miscimarra follows:] 

Prepared Statement of Philip A. Miscimarra, Senior Fellow, the Wharton 

School, University of Pennsylvania; Partner, Morgan Lewis & Bockius LLP 

Chairman Roe, Ranking Member Andrews, and Subcommittee Members, thank 

you for your invitation to participate in this hearing. I am honored to appear before 

you today. 

By way of introduction, I am a Senior Fellow at the University of Pennsylvania’s 

Wharton School and for more than 30 years I have been associated with the Wharton Center for Human Resources (previously known as the Wharton Industrial Research Unit). The majority of my academic work has dealt with the National Labor 

Relations Act and the National Labor Relations Board. I am also a Partner in the 

law firm of Morgan Lewis & Bockius LLP, and I have been a labor lawyer in private 

practice representing management since 1982.1

Summary—Labor Policy and Running the Race 

The National Labor Relations Act (NLRA or Act) 2 was adopted when there was 

a national economy, and the Act still centers around a bargaining model where each 

side’s leverage largely stems from economic damage it may inflict on the other 

party.3
8 

In a global economy, this places unions and companies in a relay race, and all 

too often in the United States, the union’s incentive is to use the baton to injure 

or maim the employer, instead of running the race against international competitors. Companies and employees suffer greatly from this type of conflict, especially 

small businesses. Expanding the Act’s coverage and making the weapons more destructive—without direction to do so from Congress—runs counter to the NLRA’s 

primary objective, which is to foster economic stability. 

Legislative Choices in the NLRA 

Decision-making concerning the scope of our federal labor laws has long been the 

province of Congress. The NLRA,4 originally known as the Wagner Act, was adopted 

in 1935 after 18 months of work by the House and Senate. Important NLRA amendments were adopted in 1947 as part of the Labor Management Relations Act (the 

Taft-Hartley Act).5 The Act was also substantially amended in 1959 as part of the 

Labor Management Reporting and Disclosure Act (the Landrum-Griffin Act).6 And 

in 1974 the Act was amended based on the Health Care Amendments to the National Labor Relations Act.7

Perhaps to state the obvious (especially for this Subcommittee’s Members), substantial debate, deliberation and controversy preceded every instance when the Act 

and proposed amendments were adopted by Congress, and also when they were 

not.8

The NLRA incorporates many policy decisions made by Congress. I will mention 

four in particular. 

1. Balancing of Interests. First, the Act reflects fundamental choices by Congress 

in the balancing of interests between employers, unions, employees, and the public.9

By comparison, the Supreme Court has stated the National Labor Relations Board 

(NLRB or Board) is not vested with ‘‘general authority to define national labor policy by balancing the competing interests of labor and management.’’ 10

2. Impact on the Economy. Second, the Act has always been closely associated 

with national economic policy. The Act was created during the Great Depression, 

and it was adopted to permit collective bargaining for the overriding purpose of 

eliminating burdens and obstructions on commerce.11

3. Stability. Third, a ‘‘basic policy of the Act [is] to achieve stability of labor relations.’’ 12 Concerning Section 8(a)(3), the Supreme Court has stated: ‘‘To achieve stability of labor relations was the primary objective of Congress in enacting the National Labor Relations Act. * * * It is not necessary for us to justify the policy of 

Congress. It is enough that we find it in the statute.’’ 13 Concerning Section 8(a)(5), 

the Supreme Court has held management ‘‘must have some degree of certainty beforehand * * * without fear of later evaluations labeling its conduct an unfair labor 

practice.’’ 14

The quest for labor relations stability is complicated by changes in direction coinciding with differences in the Board’s composition. Arguments for stability and 

change at the NLRB are not new.15 However, reducing abrupt changes in position 

should be a non-partisan objective—employers, unions and employees alike are disadvantaged by a proliferation of policy reversals at the Board.16

4. Protection of Neutrals. Fourth, another important policy decision by Congress 

involves the Act’s ‘‘secondary boycott’’ provisions which protect ‘‘neutral’’ parties 

from labor disputes.17 ‘‘Neutral’’ here means employers, employees, consumers and 

others who have no dispute with a union except they deal with a different company 

that is the target of union organizing, a union corporate campaign, or strike.18 In 

1947 and again in 1959, Congress made major changes in the Act to protect ‘‘neutral’’ parties from union strikes, refusals to handle, threats, coercion and restraint 

directed against them merely because they deal with someone else with whom the 

union has a dispute.19

The Act’s secondary boycott provisions have become more important because of 

our economy’s dependence on more numerous, complex relationships between manufacturers, service providers, suppliers, vendors and contractors.20 It is no secret that 

unions have also dramatically increased their reliance on third party pressure to 

promote top-down union organizing, neutrality agreements and corporate campaigns.21

Outer Limits on the NLRB’s Authority 

The NLRB is charged with the ‘‘difficult and delicate responsibility’’ of administering the Act.22 I have dealt with the Board for nearly 30 years. I respect the 

Members of the Board, its Acting General Counsel, and others who work in the 

agency.23 The work of the NLRB is not easy, and it is often fraught with controversy. 
9 

At the same time, there are definite limits on the Board’s authority. The Board 

is entitled to deference when it exercises its ‘‘informed judgment on matters within 

its special competence.’’ 24 But the Supreme Court has held that, when courts review 

decisions of the Board, ‘‘they are not to abdicate the conventional judicial function’’ 

and ‘‘Congress has imposed on them responsibility for assuring that the Board keeps 

within reasonable grounds.’’ 25

The Board’s authority is most narrow when it comes to changing the NLRA’s 

scope and altering the balance established by Congress as reflected in the Act’s provisions. Again to quote the Supreme Court, federal labor policy does not permit the 

Board to create a ‘‘standard of properly ‘balanced’ bargaining power’’ 26 nor does it 

‘‘contain a charter for the [NLRB] to act at large in equalizing disparities of bargaining power between employer and union.’’ 27

Selected Board Decisions—Changing the Balance 

Recent Board decisions raise questions concerning the legislative policy choices 

built into the NLRA that I have just mentioned—i.e., the balancing of interests (between employers, unions, employees and the public), the impact on the economy, 

labor relations stability, and the protection of neutrals. I will briefly discuss three 

lines of cases. 

1. Exposing Neutrals to Labor Disputes—Banners as Non-Picketing and Non-Coercion. First, in a series of ‘‘banner’’ decisions (including one handed down last 

week), the Board has concluded that, when multiple union supporters hold or stand 

beside 20-foot long banners directed at neutral companies, it is not coercion or picketing.28

To appreciate the importance of these cases, one must understand that legality 

of union activity against neutrals can depend almost completely on how it is characterized, because the Act prohibits some types of secondary activities and protects 

others. The Act makes it unlawful if a union takes action to ‘‘threaten, coerce, or 

restrain’’ a neutral employer (or induce a ‘‘strike’’ or ‘‘refusal to handle’’ by the 

neutral’s employees). Picketing is a classic example—but not the only example—of 

potential coercion, threats and restraint against neutrals that the Act prohibits.29

By deciding that large banners do not constitute picketing (or threats, coercion or 

restraint), this effectively eliminates the Act’s secondary boycott protection for 

neutrals if unions have people holding enormous stationary banners, even though 

it would violate the Act when the same number of people walk while carrying smaller signs within the same area. 

Several additional points about the Board’s recent banner decisions warrant particular attention: 

• Size of banners. These cases involve banners that are ‘‘3 or 4 feet high and from 

15 to 20 feet long,’’ requiring up to 5 people to hold them,30 and the banners identify 

the neutral company by name using words like ‘‘Shame,’’ ‘‘Labor Dispute’’ and ‘‘Immigrant Labor Abuse,’’ without indicating the union’s dispute is actually with someone else.31

• Banners are equally or more coercive than conventional pickets. In these cases, 

the people holding banners do not engage in back-and-forth walking. However, what 

the Act prohibits are secondary union actions which ‘‘threaten, coerce, or restrain’’ 

neutrals.32 It appears clear that a 4 foot high banner 20 feet long with large lettering being held by 3 or 4 stationary people is coercive to the same (or a greater) 

degree as 3 or 4 people holding smaller signs with smaller lettering who walk within the same area.33

• Number of affected neutrals. A large number of neutral parties—including 

small businesses—may be affected by the majority reasoning in the banner cases. 

Just taking four of the Board’s recent banner cases, the union activity affected at 

least two dozen neutral companies, in addition to their own employees, customers, 

vendors and the public.34

• Dissenting opinions. In these banner cases, there are dissenting opinions by 

former Member Schaumber and/or current Member Hayes.35 I refer the Subcommittee to those opinions for a more detailed discussion of relevant issues. 

2. Expanding ‘‘Pre-Hire’’ Bargaining. In another decision, Dana Corp. (UAW),36 a 

two-member plurality of the Board—with Member Hayes, dissenting 37—upheld the 

legality of a written agreement between Dana Corporation and the United Auto 

Workers (UAW) which laid out employment terms for unrepresented employees at 

nonunion Dana facilities, where most of the terms would take effect after the union 

received future card-check recognition. The Dana agreement provided for union access to the nonunion facilities, company neutrality, and recognition after the union 

attained a card-check majority.38 The agreement’s other commitments set parameters around premium sharing, deductibles, out-of-pocket maximums, and dispute 

resolution (specifically, after the union was recognized, an arbitrator would decide 
10 

what would be in the parties’ next contract if the company and union failed to agree 

on that contract by themselves).39

Arguments can be made for and against these types of arrangements.40 However, 

Congress considered the legality of non-majority and pre-hire agreements in Section 

8(f) of the Act, which permits these types of non-majority agreements, but only in 

the construction industry.41 For this reason, and because the Act places such importance on the right of employees to decide whether or not to participate in collective 

bargaining,42 this is another area where policy changes should originate in Congress. 

3. Other Board Cases. Finally, recent Board decisions include New York University,43 where a two-member plurality reinstated a representation petition covering 

college graduate assistants. The Board plurality—with Member Hayes in dissent 44—overturned the Regional Director’s dismissal of the union petition. Again, 

this lays the foundation for changing existing law and expanding the Act’s coverage.45

There are other important Board decisions and developments in addition to those 

I have mentioned.46 I have limited my comments to the authority of the NLRB, but 

I note that the Board’s Acting General Counsel in recent months has also announced a variety of new enforcement initiatives.47

Conclusion 

I will close by quoting a statement made by the Supreme Court more than 50 

years ago, which remains relevant today: 

It is suggested here that the time has come for a reevaluation of the basic content 

of collective bargaining as contemplated by the federal legislation. But that is for 

Congress. Congress has demonstrated its capacity to adjust the Nation’s labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. * * * [W]e do not 

see how the Board can do so on its own.48

This concludes my prepared testimony. I have provided an extended version of my 

remarks for the record. I look forward to any questions Members of the Subcommittee may have. Thank you for the invitation to appear today, and for the Subcommittee’s attention to our national labor and employment policy. 

ENDNOTES

1My testimony today reflects my own views which should not be attributed to The Wharton 

School, the University of Pennsylvania, or Morgan Lewis & Bockius. I am grateful to Ross H. 

Friedman and Rita Srivastava for assistance. 2 49 Stat. 449 (1935), 29 U.S.C. §§ 151 et seq. 

3See NLRB v. Insur. Agents’ Int’l Union, 361 U.S. 477, 489 (1960), where the Supreme Court 

referred to the bargaining contemplated by the Act, and observed that the parties ‘‘proceed from 

contrary and to an extent antagonistic viewpoints and concepts of self-interest. * * * The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is 

part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized.’’ 4 49 Stat. 449 (1935), 29 U.S.C. §§ 151 et seq. 

5 61 Stat. 136 (1947), 29 U.S.C. §§ 141 et seq. 

6 73 Stat. 541 (1959), 29 U.S.C. §§ 401 et seq. 

7 88 Stat. 395 (1974). 

8For example, the Employee Free Choice Act (EFCA) introduced during the 111th Congress 

would have substantially changed the NLRA’s treatment of representation elections, the bargaining of initial contracts, and damages available under the Act, but was not adopted. See S. 

560, 111th Cong., 1st Sess. (2009); H.R. 1409, 111th Cong., 1st Sess. (2009). The failure to adopt 

proposed amendments is sometimes regarded as validating prior interpretations of the Act. See 

NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 275 (1974) (‘‘congressional failure to revise or repeal the agency’s interpretation is persuasive evidence that the interpretation 

is the one intended by Congress’’). 9The Act’s central provision dealing with protected rights is Section 7, 29 U.S.C. § 157, which 

protects the right of employees ‘‘to bargain collectively through representatives of their own 

choosing * * * and to refrain from any or all of such activities,’’ except as affected by union 

security agreements in states that do not prohibit such agreements. Cf. NLRA § 14(b), 29 U.S.C. 

§ 164(b) (permitting state right-to-work laws prohibiting union security agreements). 10 American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965). The Supreme Court has 

held that, concerning ‘‘a judgment as to the proper balance to be struck between conflicting interests, ‘the deference owed to an expert tribunal cannot be allowed to slip into a judicial inertia 

which results in the unauthorized assumption by an agency of major policy decisions properly 

made by Congress.’’’ NLRB v. Brown, 380 U.S. 278, 291-92 (1965) (‘‘Reviewing courts are not 

obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they 

deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute’’). 11 NLRA § 1, 29 U.S.C. § 151 (establishing policy ‘‘to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate those obstructions’’). 

See also First Nat’l Maint. Corp. v. NLRB, 452 U.S. 666, 674 (1981), citing NLRB v. Jones & 
11 

Laughlin Steel Corp., 301 U.S. 1, 42 (1937) (‘‘A fundamental aim of the National Labor Relations 

Act is the establishment and maintenance of industrial peace to preserve the flow of interstate 

commerce’’); Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 211 (1964) (‘‘One of the primary purposes of the Act is to promote the peaceful settlement of industrial disputes by subjecting labor-management controversies to the mediatory influence of negotiation’’); Local 24, 

Int’l Bhd. of Teamsters v. Oliver, 358 U.S. 283, 295 (1959) (‘‘The goal of federal labor policy, 

as expressed in the Wagner and Taft-Hartley Acts, is the promotion of collective bargaining 

* * * and thereby to minimize industrial strife’’). 

In many contexts, protected NLRA rights also give way if they cause substantial economic 

harm or implicate fundamental business considerations. See Fibreboard, supra note 11, 379 U.S. 

at 223 (Justice Stewart, concurring) (bargaining is not mandatory over decisions ‘‘fundamental 

to the basic direction of a corporate enterprise,’’ which ‘‘lie at the core of entrepreneurial control’’ 

or which concern ‘‘the commitment of investment capital’’); First Nat’l Maint., supra note 11, 

452 U.S. at 674, 676-78 (‘‘Congress had no expectation that the elected union representative 

would become an equal partner in the running of the business enterprise in which the union’s 

members are employed. * * * Management must be free from the constraints of the bargaining 

process to the extent essential for the running of a profitable business’’); NLRB v. Retail Store 

Employees Union (Safeco Title Insur. Co.), 447 U.S. 607 (1980) (consumer-directed struck product picketing, generally permitted under NLRA § 8(b)(4)(B), is unlawful if it ‘‘reasonably can 

be expected to threaten neutral parties with ruin or substantial loss’’); Lear Siegler, Inc., 295 

NLRB 857, 861 (1989) (NLRB’s status quo ante remedy not required where the outcome would 

be ‘‘unduly burdensome’’); NLRB v. Bildisco & Bildisco, 465 U.S. 513 (1984) (rejection of collective bargaining agreements in bankruptcy); NLRB v. Burns Sec. Serv., 406 U.S. 272, 287-88 

(1972) (legal successors not required to adopt the predecessor’s labor contract because ‘‘[a] potential employer may be willing to take over a moribund business only if he can make changes 

in corporate structure, composition of the labor force, work location, task assignment, and nature of supervision’’). 12 NLRB v. Appleton Elec. Co., 296 F.2d 202, 206 (7th Cir. 1961). 13 Colgate-Palmolive-Peet Co. v. NLRB, 338 U.S. 355, 362-63 (1949). 14First Nat’l Maint., supra note 11, 452 U.S. at 678-79. 15 Not much has changed since Professor Summers made the following observation about the 

NLRB more than 50 years ago: ‘‘The labor lawyer’s world is not a secure one, for [the lawyer] 

walks on a thin crust of precedents. The body of Board decisions in many areas often gives an 

appearance of firmness only to have tremors beneath the surface open unexpected fissures or 

raise new ranges of decisions. In our primitiveness we may see these faults and upheavals in 

the crust of precedents as acts of God or Satan, crediting angels or devils incarnate in the bodies 

of Board members. With the appointment of new members the warning rumblings become more 

noticeable, and we spur our efforts to seek out the spirits and identify them as good or evil.’’ 

C. Summers, Politics, Policy Making, and the NLRB, 6 Syracuse L. Rev. 93 (1955). No side has 

a monopoly on pleas for more stability and fewer changes at the Board. Such appeals have also 

been made at times when union proponents complain of changes by a Republican majority. See, 

e.g., L. Bierman, Reflections on the Problem of Labor Board Instability, 62 Denv. U. L. Rev. 

551 (1985); Cooke & Gautschi, Political Bias in NLRB Unfair Labor Practice Decisions, 35 

Indus. & Lab. Rel. Rev. 539 (1982); Dunau, The Role of Criticism in the Work of the National 

Labor Relations Board, 16 N.Y.U. Conf. Lab. 205 (1963). Cf. Hickey, Stare Decisis and the 

NLRB, 17 Lab. L.J. 451 (1966). 16The courts have especially been critical of NLRB changes in position that operate to the 

detriment of parties while litigation is pending. See, e.g., Ryan Heating Co., Inc. v. NLRB, 942 

F.2d 1287, 1289 (8th Cir. 1991) (retroactive application of changed interpretation would be 

‘‘manifestly unjust’’ and ‘‘essential demands of fairness’’ require that parties not be ‘‘subject to 

entrapment’’ merely because ‘‘the Board later departs from its earlier position’’) (citation omitted); Epilepsy Foundation of Northeast Ohio, 268 F.3d 1095, 1099 (D.C. Cir. 2001), cert. denied, 

536 U.S. 904 (2002) (‘‘It is a fact of life in NLRB lore that certain substantive provisions of the 

NLRA invariably fluctuate with the changing compositions of the Board’’; court denies retroactive enforcement of Board’s changed interpretation because ‘‘[e]mployees and employers alike 

must be able to rely on clear statements of the law by the NLRB’’). 17 A secondary boycott has been described as an effort ‘‘to influence A by exerting some sort 

of economic or social pressure against persons who deal with A.’’ F. Frankfurter and N. Greene, 

THE LABOR INJUNCTION 43 (1930). The Act’s principal secondary boycott provisions include 

§§ 8(b)(4)(B) and 8(e), 29 U.S.C. §§ 158(b)(4)(b). Section 8(b)(4)(A), 29 U.S.C. § 158(b)(4)(A) 

makes it an unfair labor practice, in part, for a union to conduct a strike or use threats, coercion 

or restraint with the object of forcing an employer to enter into agreement prohibited by § 8(e). 

The term ‘‘boycott’’ can be misleading when discussing the Act’s secondary boycott provisions. 

The Act prohibits certain types of secondary union activity directed at neutrals (e.g., picketing), 

but permits other secondary activity (e.g., publicity other than picketing), even though both situations may involve advocating a boycott of the neutral. For this reason, as mentioned later, how 

the NLRB chooses to characterize particular types of union activity can dictate whether it is 

lawful or unlawful. See text accompanying notes 28-35, infra. 18The courts have indicated: ‘‘The gravamen of a secondary boycott * * * is that its sanctions 

bear, not upon the employer who alone is a party to the dispute, but upon some third party 

who has no concern in it. Its aim is to compel him to stop business with the employer in the 

hope that this will induce the employer to give in to his employees’ demands.’’ Bhd. of R.R. 

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 388 (1969) (citing IBEW Local 501 v. 

NLRB, 181 F.2d 34, 37 (1950), and Nat’l Woodwork Mfr. Ass’n v. NLRB, 386 U.S. 612, 623 

(1967)). 19 In 1947, as part of the Taft-Hartley Act, Congress added NLRA § 8(b)(4), 29 U.S.C. §§ 

158(b)(4). The Supreme Court in NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, 

692 (1951), described this addition as reflecting ‘‘dual congressional objectives of preserving the 
12 

right of labor organizations to bring pressure to bear on offending employers in primary labor 

disputes and of shielding unoffending employers and others from pressure in controversies not 

their own.’’ In 1959, as part of the Landrum-Griffin Act, Congress made important changes in 

§ 8(b)(4) and added NLRA § 8(e), 29 U.S.C. § 158(e). 20 As I have written, ‘‘Numerically, the percentage of American employees represented by 

unions has steadily decreased, which might suggest unions would have less success in efforts 

to enmesh ‘neutrals’ in their primary disputes. However, declining union membership has also 

prompted unions to exert more pressure on third parties in an effort to increase unionization 

among nonunion employers.’’ P. Miscimarra, A. Berkowitz, M. Wiener & J. Ditelberg, THE 

NLRB AND SECONDARY BOYCOTTS at 16 (3d ed. 2002). The Bureau of Labor Statistics indicates that, in 2010, the union membership rate was 11.9 percent counting all employers, and 

6.9 percent counting private sector employers. See U.S. Dep’t of Labor Bureau of Labor Statistics,, Economic News Release, Union Members Summary (2011), http://www.bls.gov/ 

news.release/union2.nr0.htm. Concerning the increased reliance by unions on secondary pressure, see note 21, infra. 21The AFL-CIO’s Industrial Union Department has indicated a ‘‘coordinated corporate campaign applies pressure to many points of vulnerability to convince the company to deal fairly 

and equitably with the union,’’ ‘‘[i]t means seeking vulnerabilities in all of the company’s political and economic relationships—with other unions, shareholders, customers, creditors, and government agencies—to achieve union goals,’’ and ‘‘the union is looking for ways in which it can 

use its resources to expand the dispute from the workplace to other arenas. * * *’’ Ind. Union 

Dept., AFL-CIO, DEVELOPING NEW TACTICS: WINNING WITH COORDINATED CORPORATE CAMPAIGNS at 1-3 (1985). To the same effect, see C. Estlund, The Ossification Of 

American Labor Law, 102 Columbia L. Rev. 1527 (2002), which refers to ‘‘alternative forms of 

economic pressure’’ and states: ‘‘These tactics target not only the ‘primary’ employer, who may 

often be relatively insulated from public pressure, but others who have ties to and leverage over 

the primary employer. The ‘corporate campaign,’ for example, seeks concessions from employers 

by targeting directors, customers, suppliers, lenders, and investors with publicity and other 

forms of pressure.’’ ‘‘This aspect of the new strategies is potentially in conflict with the secondary boycott provisions of the NLRA.’’ Id. at 1605 & n.326. 22 NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 499 (1960), quoting NLRB v. Truck Drivers 

Local 449, 353 U.S. 87, 96 (1957). In NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963), 

the Court stated ‘‘we must recognize the Board’s special function of applying the general provisions of the Act to the complexities of industrial life’’ (citation omitted). See also NLRB v. Action 

Automotive, Inc., 469 U.S. 490, 496-97 (1985); Ford Motor Co. v. NLRB, 441 U.S. 488, 495 

(1978); Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Phelps Dodge Corp. v. 

NLRB, 313 U.S. 177, 194 (1941). 23 I have written that the NLRB and the courts have an unenviable responsibility under the 

Act, which becomes even more daunting when variations in the law result from periodic changes 

in the Board’s composition. Philip A. Miscimarra et al., THE NLRB AND MANAGERIAL DISCRETION: SUBCONTRACTING, RELOCATIONS, CLOSINGS, SALES, LAYOFFS, AND 

TECHNOLOGICAL CHANGE at 569 (2d ed. 2010). 24 Universal Camera, supra note 22, 340 U.S. at 490. The Board’s factual findings are to be 

upheld if supported by ‘‘substantial evidence on the record considered as a whole.’’ NLRA § 10(f), 

29 U.S.C. § 160(f); Universal Camera, supra note 22, 340 U.S. at 478-79, 488. See also NLRA 

§ 10(e), 29 U.S.C. §§ 160(e). Like other agencies, the Board is permitted to change its mind and 

overrule prior determinations although such changes of position must be explained and reflect 

a reasonably defensible interpretation of the Act. See, e.g., NLRB v. Int’l Ass’n of Bridge, Structural & Ornamental Iron Workers, 434 U.S. 335, 351 (1978). 25 Universal Camera, supra note 22, 340 U.S. at 490. See also American Ship Bldg. Co. v. 

NLRB, 380 U.S. 300, 318 (1965) (court denies enforcement to NLRB determination where the 

Board’s view was ‘‘fundamentally inconsistent with the structure of the Act and the function 

of the sections relied upon’’); NLRB v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 19, 

154 F.3d 137, 141 (3d Cir. 1998) (Board decision afforded ‘‘limited deference’’ concerning common 

law agency principles as to which the NLRB ‘‘has no special expertise’’ and concerning § 2(13) 

of the Act, 29 U.S.C. § 152(13), where ‘‘Congress did not delegate to the Board the power to 

interpret that section’’) (citations omitted); NLRB v. Fin. Inst. Employees, 475 U.S. 192, 202 

(1986) (‘‘Deference to the Board ‘cannot be allowed to slip into a judicial inertia which results 

in the unauthorized assumption * * * of major policy decisions properly made by Congress’ ’’) 

(citation omitted). Prior to enactment of the Taft-Hartley Act amendments, greater deference 

was afforded to NLRB decisions by the courts, which generated significant controversy and 

prompted Congress to modify the Act’s treatment of court review. See Universal Camera, supra 

note 22, 340 U.S. at 478-79. 26 NLRB v. Ins. Agents’ Int’l Union, 361 U.S. 477, 497 (1960). 27 Id. at 490. 28See Carpenters Local 1506 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (Aug. 

27, 2010); Carpenters Local 1506 (Marriott Warner Center Woodland Hills), 355 NLRB No. 219 

(Sept. 30, 2010); Southwest Regional Council of Carpenters (Richie’s Installations, Inc.), 355 

NLRB No. 227 (Oct. 7, 2010); Southwest Regional Council of Carpenters (New Star Gen. Contr. 

Inc.), 356 NLRB No. 88 (Feb. 3, 2011). Each of these cases were decided by a majority or plurality of Board members, with dissenting opinions by Members Schaumber and/or Hayes. See 

note 35, infra. 29 Union conduct has been deemed unlawful secondary coercion even in the absence of conventional picketing. See, e.g., UFCW Local 1776 (Carpenters Health & Welfare Fund), 327 NLRB 

593 (1999), citing Iron Workers Local 433 v. NLRB, 598 F.2d 1154, 1158 n.6 (9th Cir. 1979) 

(union representative stationed at neutral gate wearing ‘‘observer’’ sign held to constitute coercion in the form of ‘‘signal picketing,’’ defined as ‘‘activity short of a true picket line that acts 

as a signal to neutrals that sympathetic action on their part is desired by the union’’). As ex-
13 

plained in the dissenting opinion by Members Schaumber and Hayes in Eliason & Knuth, supra 

note 28, ‘‘The prohibition against coercive secondary activity sweeps more broadly and has been 

held to encompass patrolling without signs, placing picket signs in a snowbank and then watching them from a parked car, visibly posting union agents near signs affixed to poles and trees 

in front of an employer’s premises, posting banners on a fence or stake in the back of a truck 

with union agents standing nearby and * * * simply posting agents without signs at the entrance to a neutral’s facility.’’ 355 NLRB No. 159, slip op. at 19 (footnotes omitted) (Members 

Schaumber and Hayes, dissenting), citing Service Employees Local 399 (Burns Detective Agency), 136 NLRB 431, 436—437 (1962); NLRB v. Teamsters Local 182 (Woodward Motors), 314 

F.2d 53 (2d Cir. 1963), enforcing 135 NLRB 851 (1962); NLRB v. United Furniture Workers, 

337 F.2d 936, 940 (2d. Cir. 1964); Mine Workers Local 1329 (Alpine Construction), 276 NLRB 

415, 431 (1985), remanded on other grounds, 812 F.2d 741 (D.C. Cir. 1987); Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 686 (2001). Cf. Lawrence Typographical Union No. 570 

(Kansas Color Press), 169 NLRB 279, 283 (1968), enforced, 402 F.2d 452 (10th Cir. 1968) (‘‘the 

Board and the courts have held that patrolling, in the common parlance of movement, and the 

carrying of placards, are not a sine qua non of picketing’’) (citations omitted). 30 Eliason & Knuth, supra note 28, slip op. at 2-3, 26-27 (3 or 4 people holding banners). In 

some instances, the banners were 4 feet by 18 feet long, framed on the top and sides, with base 

legs which allowed them to stand by themselves, accompanied by multiple union members or 

employees. See, e.g., Marriott Warner, supra note 28, slip op. at 4 (ALJ opinion). Up to 5 people 

were holding or standing by the banners in New Star Gen. Contractors Inc., supra note 28, slip 

op. at 12-13 (ALJ opinion). See also Richie’s Installations, Inc., supra note 28, slip op. at 3-5 

(ALJ opinion). 31 Eliason & Knuth, supra note 28, slip op. at 2-3; Marriott Warner, supra note 28, slip op. 

at 4 (ALJ opinion); Richie’s Installations, Inc., supra note 28, slip op. at 3-5 (ALJ opinion); New 

Star Gen. Contractors Inc., supra note 28, slip op. at 12-13 (ALJ opinion). 

In 1959, while strengthening the Act’s secondary boycott prohibitions, Congress added a ‘‘publicity proviso’’ to Section 8(b)(4) which protects ‘‘publicity, other than picketing’’ for the purpose 

of truthfully advising the public of a union’s primary dispute. 29 U.S.C. § 158(b)(4). The Supreme Court has explained this permits conduct which, if restricted, could run afoul of the free 

speech guarantees afforded by the First Amendment. Edward J. DeBartolo Corp. v. Florida Gulf 

Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988). Cases addressing the ‘‘publicity, 

other than picketing’’ language, however, have most often interpreted the phrase as relating primarily to the distribution of leaflets. See, e.g., DeBartolo, 485 U.S. at 570-71, 578. When evaluating free speech issues, the Supreme Court has distinguished leafleting from picketing, with 

picketing being defined as ‘‘a mixture of conduct and communication,’’ where the conduct element ‘‘often provides the most persuasive deterrent to third persons about the enter a business 

establishment.’’ DeBartolo, 485 U.S. at 580, quoting Safeco, supra note 11, 447 U.S. at 619 (Justice Stevens, concurring); and citing Babbitt v. Farm Workers, 442 U.S. 289, 311 n.17 (1979); 

Hughes v. Superior Court, 339 U.S. 460, 465 (1950). The Board majority in Eliason & Knuth 

relied, in part, on the Ninth Circuit decision in Overstreet v. Carpenters Local 1506, 409 F.3d 

1199 (9th Cir. 2005), where the court declined to issue an injunction against banners and 

leafleting under NLRA § 10(l), 29 U.S.C. § 160(l), based on ‘‘First Amendment concerns’’ (id. at 

1219), although the court indicated that the Board was not entitled to deference as to any First 

Amendment issue because ‘‘constitutional decisions are not the province of the NLRB. * * *’’ 

Id. 32 Union conduct has constituted unlawful coercion under § 8(b)(4)(B) in the absence of patrolling and/or conventional picketing. See note 29, supra. 33 As indicated in note 30, supra, up to 5 union supporters were holding or standing by the 

banners in New Star Gen. Contr. Inc., supra note 28, slip op. at 12-13 (ALJ opinion). Conventional secondary picketing has been declared unlawful under § 8(b)(4)(B) based on picketing by 

as few as one person. See, e.g., IBEW v. NLRB, 341 U.S. 694, 696-67 (1951) (1 picket). See also 

Iron Workers Local 433 (Aram Kazazian Constr., Inc.), 293 NLRB 621 (1989) (2 pickets); Laborers’ Eastern Region Organizing Fund (Ranches at Mt. Sinai), 346 NLRB 1251,1253 (2006) (‘‘no 

minimum number of persons is necessary to create a picket line’’). Cf. United Bhd. of Carpenters 

(Wadsworth Bldg. Co.), 81 NLRB 802, 812 (1949), enforced, 184 F.2d 60 (10th Cir. 1950), cert. 

denied, 341 U.S. 947 (1951): ‘‘It was the objective of the unions’ secondary activities, as legislative history shows, and not the quality of the means employed to accomplish that objective, 

which was the dominant factor motivating Congress’’ (emphasis in original). 34 Eliason & Knuth, supra note 28, slip op. at 26-27; Marriott Warner, supra note 28, slip op. 

at 3-10 (ALJ opinion); Richie’s Installations, Inc., supra note 28, slip op. at 2-5 (ALJ opinion); 

New Star Gen. Contr. Inc., supra note 28, slip op. at 11-12, 15-23 (ALJ opinion). The affected 

neutrals included medical centers and hospitals, restaurants, a hotel, car dealership, spa, consulting company, newspaper publisher, mortgage lender, retail furniture store, medical device 

manufacturer, property management company, public transit authority, real estate developers, 

agents and brokers, a credit union, a pharmaceutical company, two universities, and a public 

courthouse. Id. 35See Eliason & Knuth, supra note 28, slip op. at 15 (Members Schaumber and Hayes, dissenting); Marriott Warner, supra note 28, slip op. at 2 (Member Hayes, dissenting); Richie’s Installations, Inc., supra note 28, slip op. at 2 (Member Hayes, dissenting); New Star Gen. Contr. 

Inc., supra note 28, slip op. at 7 (Member Hayes, dissenting). 36 356 NLRB No. 49 (Dec. 6, 2010). 37 Id., slip op. at 10 (Member Hayes, dissenting). 38 Id. at 2. 39 Id. The Board’s Dana/UAW decision departs from case law that had been in effect for more 

than 40 years. Majestic Weaving Co., 147 NLRB 859 (1964), enforcement denied, 355 F.2d 854 

(2d Cir. 1966). Cf. ILGWU v. NLRB (Bernhard-Altmann), 366 U.S. 731 (1961). 
14 

40 In sale situations, for example, there may be a desire to have greater certainty because the 

law regarding successorship has become so difficult to understand. See, e.g., Howard Johnson 

Co. v. Detroit Local Joint Executive Board, 417 U.S. 249, 263 n.9 (1974) (Supreme Court, after 

issuing several successorship decisions, states the term ‘‘successorship’’ is ‘‘simply not meaningful in the abstract’’ and a new employer ‘‘may be a successor for some purposes and not for others’’). I have written that such complexity, by itself, undermines the stability that Congress 

hoped to foster when adopting the Act. Herbert R. Northrup & Philip A. Miscimarra, GOVERNMENT PROTECTION OF EMPLOYEES INVOLVED IN MERGERS AND ACQUISITIONS at 

346 (1989) (Congress ‘‘could hardly have envisioned the massive array of complex legal principles that are now imbued in the term ‘successorship’ ’’). 41 NLRA § 8(f), 29 U.S.C. § 158(f) (permitting pre-hire agreements only where the employer 

is ‘‘engaged primarily in the building and construction industry’’). Experience under § 8(f) has 

shown that other issues can require attention when negotiations and agreements sett employment terms for employees where there is no employee majority favoring union representation. 

See, e.g., John Deklewa & Sons, 282 NLRB 1375 (1987), enforced sub nom. Int’l Ass’n of Bridge, 

Structural & Ornamental Workers Local 3 v. NLRB, 843 F.2d 770 (3d Cir. 1988), cert. denied, 

488 U.S. 889 (1988); Laborers Local 1184 (NVE Constructors), 296 NLRB 1325 (1989). 42 NLRA § 9(a), 29 U.S.C. § 159(a). 43 356 NLRB No. 7 (Oct. 25, 2010). 44 Id., slip op. at 2 (Member Hayes, dissenting). 45The Regional Director’s dismissal of the union petition was based on a prior Board decision, 

Brown University, 342 NLRB 483 (2004), which held graduate assistants providing teaching and 

research services are not employees under the Act. In its recent New York University ruling, 

the Board plurality stated there were ‘‘compelling reasons’’ for reconsidering Brown University, 

but the plurality remanded the case so relevant issues could be addressed ‘‘based on a full evidentiary record.’’ Id., slip op. at 2. 46The NLRB in an array of pending cases, each involving important issues, has issued public 

notices and invitations to file briefs, and the Board is also engaging in rulemaking as described 

below, raising the possibility that these may lead to further changes in position by the Board: 

• Rite Aid Store #6473, Case 31-RD-1578 (notice issued Aug. 31, 2010), involving potential 

reconsideration of Dana Corp., 351 NLRB 434 (2007) where Board held that voluntary recognition bars representation or decertification petition for a reasonable time only if written notice 

advises employees of their right to file or support such a petition within 45 days after posting 

of notice; 

• UGL-UNICCO Service Co., Case 1-RC-22447 (notice issued Aug. 31, 2010), involving potential reconsideration of MV Transportation, 337 NLRB 770 (2002) where Board held a successor 

employer’s union recognition will not bar an otherwise valid petition or other challenge to the 

union’s majority status, and possible return to contrary rule set forth in St. Elizabeth Manor, 

Inc., 329 NLRB 341 (1999); • Roundy’s Inc., Case 30-CA-17185 (notice issued Nov. 12, 2010), involving denial of union access to private property, and potential reconsideration of Register-Guard, 351 NLRB 1110 (2007) 

where Board (in context of e-mail) permitted distinctions regarding access so long as the employer did not discriminate between union access and other activities of a similar character, and 

Sandusky Mall Co., 329 NLRB 618 (1999), where Board held employers could not lawfully deny 

access to non-employee union supporters while permitting charitable solicitations on private 

property; • Specialty Healthcare and Rehabilitation Center of Mobile, Case 15-RC-8773 (notice issued 

Dec. 22, 2010), involving potential reconsideration of Park Manor Care Center, 305 NLRB 872 

(1991), where Board held that bargaining units in non-acute healthcare facilities would be based 

on the ‘‘pragmatic’’ or ‘‘empirical’’ community-of-interests test and not the Board’s rules regarding acute care bargaining units; • Proposed Rules Regarding Notice-Posting, 75 Fed. Reg. 80410 (published Dec. 22, 2010), involving potential notice-posting requirement regarding employee rights under the NLRA and the 

potential distribution of such notices ‘‘electronically’’ if the employer ‘‘customarily communicates 

with its employees by such means.’’ Id. at 80413. 47See, e.g., GC Mem. 10-07 (Sept. 30, 2010) (§ 10(j) injunctions in union organizing); GC Mem. 

11-01 (Dec. 20, 2010) (hallmark violation remedies in union organizing); GC Mem. 11-04 (Jan. 

12, 2011) (default language in settlement agreements); GC Mem. 11-05 (Jan. 20, 2011) (deferral 

to arbitration under §§ 8(a)(1) and (3)); Am. Med. Response of Conn., Inc., Case 34-CA-12576 

(complaint involving internet posting policies and Facebook comments; settlement announced 

Feb. 7, 2011). 48 NLRB v. Insur. Agents, supra note 26, 361 U.S. at 500 (emphasis added; footnote omitted). 

Chairman ROE. Mr. Rosenfeld. 

STATEMENT OF ARTHUR ROSENFELD, FORMER NATIONAL 

LABOR RELATIONS BOARD GENERAL COUNSEL 

Mr. ROSENFELD. Chairman Roe and members of the subcommittee, I want to thank you for the opportunity to testify before 

the subcommittee regarding emerging trends at the National Labor 

Relations Board. I served as general counsel of the Labor Board 
15 

from June of 2001 to January of 2006, and therefore, I will attempt 

to focus on arising issues within the general counsel’s purview. 

But I would like to take a few moments to discuss something. 

First, I would request that my written statement be made a part 

of the record. 

I would like to take a few moments to discuss something that is 

an issue of concern. In January of 2011, acting general counsel Solomon sent letters to four States: Arizona, South Carolina, South 

Dakota and Utah. What the States had in common was that the 

voters, the respective voters in those States in the November elections had approved and the States had enacted secret ballot 

amendments providing, and the language from State to State varies a little, but providing that the designation or selection of union 

representatives only be done by secret ballot. 

Board law, of course, acknowledges other means such as voluntary recognition, card check, voice votes, whatever. Acting general counsel Solomon’s letter also indicated that he was authorized 

by the Board, if necessary, to initiate legal action, declaring that 

the State amendments violated the supremacy clause in article 6. 

The States responded I understand on January 27. The attorneys 

general of the four States in a single letter responded, and there 

may be a softening of the general counsel’s position on this at this 

point. I am not sure of that. But without opining on the merits of 

the issue itself, I have to applaud the Board’s quick authorization, 

the quick action in the authorizing the acting general counsel in 

order to protect the Board’s jurisdiction. 

I raise the issue, however, and am concerned that the Board may 

not continue to be as vigilant when future State regulations threaten to encroach on the Board’s jurisdiction. In this case it was clear, 

unfortunately, it had to do with secret ballot elections which is part 

and parcel of what the Employee Free Choice Act was directed at 

eliminating. 

But I have had personal experience with these preemption 

issues. And in the summer of 2003, I urged the Board to authorize 

an amicus in a case in California pertaining to AB, assembly bill 

1889, which basically prohibited employers from receiving State— 

excuse me, prohibiting employers who receive State funds from 

using those funds to assist, promote or deter union organizing. In 

other words, it forced neutrality provision. 

I urged the Board to allow me to file this brief. It was not an 

easy sell, quite frankly. I finally was authorized by the Board to 

so do and in footnote 2 of the brief that we filed, it notes that the 

Board authorized my going forward by a 3-2 vote. One of the two 

dissenters, of course, is current chairman Liebman. 

In June of 2008, the United States Supreme Court in that particular case held that AB 1889 was preempted. I believe the vote 

was 7-2. 

Again, I raise this issue only because I hope that when other 

State intrusions into what is Board’s jurisdiction that don’t necessarily parallel what was in the Employer Free Choice Act arise, 

that the Board will authorize the general counsel to go forward. 

The only other thing I would state in regard to that issue is that, 

and again, I want to opine on whether I think the floor actions are 

preempted or not, I think that will be worked out ultimately, but 
16 

there is probably a better way of skinning that particular cat, and 

that might be for Congress to enact the Secret Ballot Protection 

Act. And that would be an Act of Federal Congress. 

With that, I will conclude my remarks by saying I welcome any 

questions, and I will try to answer them. 

Chairman ROE. Thank you, Mr. Rosenfeld. 

[The statement of Mr. Rosenfeld follows:] 

Prepared Statement of Arthur F. Rosenfeld, Former National Labor 

Relations Board General Counsel 

CHAIRMAN ROE AND MEMBERS OF THE SUBCOMMITTEE: Thank you for this opportunity to testify before the Subcommittee regarding ‘‘Emerging Trends at the National Labor Relations Board.’’ 

The National Labor Relations Board (NLRB) is an independent federal agency 

that administers the National Labor Relations Act (NLRA). The Board has two primary functions: to prevent and remedy unlawful acts, i.e., unfair labor practices by 

either employers or unions, and to determine, through secret-ballot elections, whether or not a unit of employees wish to be represented by a union in dealing with their 

employer and, if so, which union. 

The NLRB has two major, separate components. The Board itself, consisting of 

up to five members, adjudicates unfair labor practice complaints on the basis of formal records in administrative proceedings and resolves election case issues. The second component is the Office of General Counsel. The General Counsel has independent prosecutorial authority and is responsible for the investigation and prosecution of unfair labor cases and for the general supervision of the NLRB’s 32 Regional 

Offices and satellite offices in the processing of both unfair labor practice and representation cases. 

I served as General Counsel from June of 2001 to January of 2006. Therefore, this 

statement will attempt to focus on arising issues within the General Counsel’s purview. There are, however, compared to Board side activities, fewer clear guideposts 

from which to derive General Counsel prognoses. First, Acting General Counsel Lafe 

E. Solomon only has headed the Office since late June of 2010. The Obama Board, 

conversely, has nearly two years of published decisions, plus nearly a decade of dissents by Member Liebman (now Chairman) from which to glean an anticipated 

decisional proclivity for the current Board. 

Secondly, and most significant, the General Counsel’s influence often is exercised 

subtly, e.g., through enhanced enforcement of a certain class of cases, or through 

instructions to the Regional Directors, or in the way a case is presented, or even 

in performance evaluations of General Counsel Office employees. President Truman 

vetoed the Taft-Hartley Act (subsequently overridden by Congress in 1947), in part 

because of the concern that creation of an independent General Counsel, would result in creation of a labor czar. Prior to the vote to override the President’s veto, 

Senator Taft answered criticism that the Act placed too much power in the hands 

of a single official, explaining: 

In order to make an effective separation between the judicial and prosecuting 

functions of the Board and yet avoiding the cumbersome device of establishing a 

new independent agency in the executive branch of the Government, the conferees 

created the office of general counsel of the Board. * * * We invested in this office 

final authority to issue complaints (and) prosecute them before the Board. * * * 

(H)e, of course, must respect the rules of decision of the Board and of the courts. 

In this respect his function is like that of the Attorney General of the United States 

or a State attorney general. 

In practice, President Truman’s concerns have proven unfounded. In large part, 

I believe, because of the integrity, as well as respect for the institution, of those who 

have served, and continue to serve, as General Counsel. And, of course, because of 

the extraordinary career staff in the Office of the General Counsel. 

Consistent with its duties under the NLRA, the Office of the General Counsel 

should have no reluctance to present cases to the Board seeking reversal of current 

law when the Board signals some willingness to change its view or where a Supreme Court decision has called current Board law into question. The process, however, is not self-initiating. The General Counsel can issue a complaint only upon the 

filing of a charge alleging an impropriety. 

In performing the duties of chief prosecutor and investigator under the NLRA, the 

General Counsel, through the Regional Office staffs, investigates, determines merit, 

and thereafter either dismisses the unfair labor practice charges or, absent settle-
17 

ment, commences formal adjudication by issuing administrative complaints. In making these merit determinations, the General Counsel is guided by the body of decisions and orders of the Board. 

In fiscal year 2010, more than 23,000 unfair labor practice cases were filed in the 

Regional Offices. Of these, slightly more than 35.5% were found meritorious, with 

the reminder dismissed or withdrawn by the charging party. 95% of the merit cases 

were settled. A high settlement rate is important, not only in preserving agency resources, but because it allows the parties to get back to work by putting the conflict 

to rest. This result was a major goal of Congress when creating the NLRB. 

With the foregoing in mind, let us examine some GC memoranda issued by Acting 

General Counsel Solomon. They may prove revealing in terms of what can be expected of the Office of General Counsel in the next few years. 

Memorandum GC 11-04 

GC 11-04 was issued on January 12, 2011. It has the potential to adversely impact the aforementioned settlement rate. The issue addressed is inclusion of default 

provisions, and the language used in those provisions, in informal settlement agreements. Heretofore, Regions had utilized default language where there was a substantial likelihood that the charged party/respondent would be unwilling or unable 

to fulfill its settlement obligations. Regional Directors had discretion to use, and 

modify, default language based on case circumstances. 

GC 11-04 now requires the Regions to ‘‘* * * routinely include default language 

in all informal settlement agreement. * * *’’ The concern, of course, is that charged 

parties may refuse to enter into informal settlements containing affirmative obligations. Clearly, default language may save agency resources in the event of a breach 

of a settlement agreement. However, these resource savings are lost, and other costs 

to the agency incurred, if charged parties/respondents avoid settlement. GC 11-04 

cites experience of three regions (out of 32) to imply that settlement percentages will 

not be affected by the new policy. There is concern that this will not prove to be 

correct, particularly when default language subjects charged parties to a remedial 

order for all complaint allegations, not only the affirmative obligations contained in 

the settlement agreement. 

GC 10-07 

The Acting General Counsel here attempts to increase scrutiny afforded to unlawful discharges, referred to as nip-in the-bud violations, which occur during a union 

organizing campaign. The justification for this lies in the argument that other employees are chilled in the exercise of their section 7 rights because of fear that active 

participation in the campaign will result in similar punishment. Further, it is argued, that the discharge of union adherents deprives remaining employees of leadership of union supporters. 

Countering these arguments, it should be noted that over 92% of the 1790 initial 

representation elections conducted in fiscal year 2010 were held pursuant to agreement of the parties, and over 95% of these elections were conducted within 56 days 

of the filing of the election petition. And, of course, these elections were conducted 

by secret ballot. Nonetheless, it cannot be gainsaid that unlawful discharges that 

occur during an organizing campaign should and must be remedied. The question 

that arises, and may be answered through review in the future of representation 

case statistics, is whether the remedial efforts can be justified. 

GC 10-07 shortens in time frames for agency action in nip-in-the-bud cases. In 

addition, the use of 10(j) injunctive relief is to be considered in most cases, and the 

Acting General Counsel will personally review all pending organizing discharge 

cases found to have merit, to decide whether 10(j) authorization should be sought 

from the Board. 

GC 10-07 notes that its required approach to nip-in-the-bud cases can drain resources in the field. Devoting scarce resources to a problem that may not be critical 

means that resources will be shifted from other issues, perhaps such as illegal secondary boycotts. 

GC 11-01 

GC 11-01 builds on GC 10-07, by outlining non-traditional remedies to be sought 

by the Regions for employer violations occurring during organizing campaigns. The 

memorandum both sets forth these remedies, and provides a rationale to be used 

by the Regions when arguing that certain extraordinary remedies are necessary to 

‘‘* * * restore an atmosphere in which employees can freely exercise their Section 

7 rights.’’ 

The remedies set forth in GC 11-01 include: 

• Public reading of Board notices, to the widest possible audience, by a responsible management official; 
18 

• Access to bulletin boards; • Provide union with list of employee names and addresses, earlier than the current Excelsior list requirements; • Union access to employer property; • Access and time for union pre-election speeches. 

GC 11-01 and GC 11-07 are directed only at employer misconduct. 

GC 11-05 

For over a half century, the NLRB has, through deferral to final and binding arbitration awards, encouraged parties to resolve their disputes by voluntary methods 

agreed upon by the parties. This approach recognizes that the NLRA was designed 

by Congress to promote industrial peace and stability, and that a collective bargaining agreement that contains a final and binding grievance/arbitration provision 

contributes to this objective. 

The Board’s deferral policy has not always been a smooth road. Over the years, 

some commentators, and some courts, have expressed concerns regarding possible 

abdication of the NLRB’s role in protecting statutory rights by deferring that role 

to an arbitrator. However, at least 1984, the parameters of post-arbitral deferral 

have been relatively clear, and accepted and understood by the parties. The process 

is referred to as Spielberg/Olin deferral. 

In a nutshell, where disputes involve both contract and NLRA issues (e.g., did the 

termination of an employee violate the just cause provisions of the collective bargaining agreement, and also constitute an unfair labor practice), the Board has consistently deferred to an arbitration award if the process was fair and regular, all 

parties agreed to be bound by the determination, and the award was not repugnant 

to the purposes and policies of the NLRA. The arbitrator is considered to have adequately the alleged unfair labor practice where the contract issue was factually parallel to the unfair labor practice issue, and the arbitrator was presented with facts 

generally relevant to resolving the unfair labor practice. The burden of showing that 

these requisites were not met is placed on the party objecting to deferral. 

GC 11-05 would turn this well-established practice on its head. The memorandum, 

in effect, urges the Board to revise its approach to deferral. Regional Directors are 

therein instructed to defer only where it is shown that the statutory right in question is incorporated in the collective bargaining agreement or that the statutory 

issue was presented to the arbitrator, and the ‘‘arbitrator correctly enunciated the 

applicable statutory principles and applied them in deciding the issue.’’ Further, the 

burden is now placed on the party seeking deferral. 

The Acting General Counsel seeks to revise the ground rules in all deferral cases, 

including pre-arbitral deferral, where an employer is alleged to have violated a collective bargaining agreement provision, and to have committed an unfair labor practice. If adopted, I fear that there will be fewer deferrals, greater expenditure of 

agency resources, and diminution in achievement of the Congressional goal of promoting industrial peace and stability. 

Thank you for the opportunity to address these issues before the Subcommittee. 

I would be happy to try and answer any questions you may have. 

Chairman ROE. Ms. Estlund. 

STATEMENT OF CYNTHIA ESTLUND, PROFESSOR OF LAW, 

NEW YORK UNIVERSITY SCHOOL OF LAW 

Ms. ESTLUND. Good morning. I want to thank the committee for 

the opportunity to offer my perspective on recent developments at 

the NLRB. 

Let me start off with my conclusion. In my view, the recent proposals and actions by the Board and the acting general counsel are 

fully consistent with the Board’s statutory responsibilities and well 

within the boundaries of both the board’s authority and traditional 

scope within which past boards have exercised that authority. So 

far from running amok, the Board and general counsel have taken 

or considered some modest steps to improve the efficiency, efficacy 

and transparency of the Board’s administration of the statute. 

Nothing that the Board is doing or has proposed to do will work 

a major change in the labor relations landscape. 
19 

First, on rulemaking. The Board has traditionally announced 

changes in its interpretation of the Act in the course of deciding 

particular cases. And it unquestionably has the authority to do 

that. 

On the other hand, courts and commentators across the political 

spectrum have often urged the Board to make better use of its well 

established rulemaking powers. Rulemaking is more time consuming, but it allows for a more thorough consideration of a range 

of views on recurring policy issues. 

While the Board may or may not undertake additional rulemaking beyond the one rule proposed so far, its decision to do so 

should be welcomed. As to the one rule the Board has proposed so 

far, which would require employers to post a notice informing employees of their rights under the Act, I think that should be pretty 

uncontroversial, but I am happy to take questions on that if there 

are any. 

Also on the procedural front, the Board has got some attention 

from soliciting amicus briefs from interested parties on several 

issues raised by pending cases. I don’t think anyone actually thinks 

that is a bad idea. And I am happy to discuss any of those cases 

and questions, but I don’t think it serves any real purpose here to 

speculate about the Board’s eventual answers to questions on 

which it has sensibly sought a range of views. 

That raises an important point about the Board’s role. There is 

no question that the Board has an important policy making role 

under the Act, and that Presidential appointments affect the mix 

of policy considerations that board members bring to that role. 

That is all by congressional design. When the Board overturns its 

own precedent, as the previous board majority did in many cases, 

we may debate whether the new decision is good policy or whether 

it is consistent with the statute, a question on which the courts 

will, of course, have the last word. But there is nothing wrong or 

unusual in the Board’s reconsidering its own precedents. That is a 

true even if the Board has fewer than five members due to vacancies as long as there are three votes to overrule. And I can explain 

that more in questions if there are any. 

As to the Board’s actual decisions so far, I am fairly confident 

that none has broken new ground and none has squarely overruled 

existing precedent. In fact, as Congressman Andrews pointed out, 

over 80 percent of its nearly 300 decisions since April 2010 were 

unanimous. In one that was not that has attracted some attention, 

the Board held that a union’s peaceful display of stationary banners informing the public about a labor dispute with no patrolling, 

no obstruction of traffic did not violate the Act, and that serious 

First Amendment questions would be raised if it did violate the 

Act. 

The Board overruled no prior decisions in holding that, but it did 

respond to several court decisions citing exactly these same reasons 

for rejecting prior general counsel’s efforts to seek an injunction 

against stationary bannering of this nature. 

I would also be happy to talk more about the Dana II decision, 

allowing for some pre-recognition framework discussions between 

unions and employers. That decision was actually welcomed by 
20 

many employers. But in the interest of time, let me move to the 

general counsel’s office briefly. 

Two recent memoranda by Acting General Counsel Solomon addressed appropriate remedies for serious unfair labor practices in 

the context of union organizing, especially in cases where the employer may hope to stop an organizing drive in its tracks by firing 

a leading union activist. 

In the interest of time, I will just talk about the first one, which 

declared the general counsel’s intent to give a high priority to unlawful discharges in organizing cases, and to consider seeking preliminary reinstatement in Federal Court under section 10(j) of the 

Act. Past general counsels of both parties, including Mr. Rosenfeld, 

have recognized the essential role of 10(j) injunctions in addressing 

discriminatory discharges in the organizing context. 

The Board has since authorized more 10(j) petitions than it had 

in recent months. But those numbers are not outside the range of 

historic practice. And the fact that it has had such an extremely 

high success rate in those cases indicates that these are all very 

strong cases. 

One final point on preemption of State and local laws. As Mr. 

Rosenfeld has noted, the Federal preemption is decidedly a doubleedged sword. In the last decade, courts at the urging of the Board 

have struck down on preemption grounds numerous State and local 

laws that were supported by organized labor, and some now criticize the Board for challenging four recent State ballot initiatives 

requiring secret ballot elections. 

In some cases, as in the California case that Mr. Rosenfeld mentioned, it is debatable whether a State law is preempted. But in the 

four State secret ballot amendments in this case, there is really no 

debate. These laws are clearly preempted. I am aware of no 

straight-faced argument to the contrary. 

In conclusion, the current board and acting general counsel are 

doing no more and no less than conscientiously carrying out their 

statutory responsibilities as prescribed by Congress and underscored by the Supreme Court. Thank you very much. 

Chairman ROE. Thank you, Ms. Estlund. 

[The statement of Ms. Estlund follows:] 

Prepared Statement of Cynthia L. Estlund, Catherine A. Rein Professor of 

Law, New York University School of Law 

My name is Cynthia Estlund, and I am a law professor at the New York University School of Law. Since 1989, after several years of practicing labor law at the firm 

of Bredhoff & Kaiser here in Washington, I have taught at the University of Texas 

School of Law, Columbia Law School, and Harvard Law School, as well as at NYU. 

I have published and lectured extensively over the past twenty-two years on the law 

of the workplace, including on various aspects of the National Labor Relations Act. 

I want to thank the Committee for inviting me to offer my perspective on recent 

developments within the National Labor Relations Board (NLRB or Board). Recent 

actions or statements by the Board and its Acting General Counsel have attracted 

interest, and even some controversy and criticism. Those include the Board’s decision to challenge four recent state ballot initiatives on preemption grounds; two 

General Counsel memoranda regarding the use of preliminary injunctions and other 

remedies for unfair labor practices during union organizing campaigns; the use or 

consideration of rulemaking to address certain issues; and the solicitation of briefs 

on significant policy issues raised by several pending cases. 

Before turning to some of the particulars, let me start with my conclusion: In my 

view, these recent proposals and actions are modest by any measure, and well within both the boundaries of the Board’s statutory authority and the traditional scope 
21 

within which past Boards and General Counsels have exercised that authority. Indeed, some of what has spurred controversy amounts to no more than the solicitation of comments from interested parties on how certain issues should best be resolved. Far from running amok or striking out in radical new directions, the Board 

and General Counsel have taken or considered a few cautious steps to improve the 

efficiency and efficacy of the Board’s administration of the statute and to improve 

the transparency of its decisionmaking. Moreover, in examining the recent developments, it is worth keeping in mind that any substantive decisions that the Board 

or its General Counsel do make—whether embodied in a decision on an unfair labor 

practice complaint, a rulemaking, or petition for preliminary injunctive relief—are 

subject to judicial review or approval to ensure that they are consistent with the 

statute and the Board’s authority. In short, nothing that the Board is doing or has 

proposed to do will work a major change in the labor relations landscape. 

These recent developments should be understood in the context of the statutory 

scheme over which the Board presides. The National Labor Relations Act was 

passed in 1935, amended significantly in 1947 and less significantly in 1959 and 

1974. In the past fifty years Congress has enacted no significant amendments to the 

basic provisions of the Act in spite of dramatic changes in the labor force, the economy, the organization of work, and the surrounding legal landscape. That is the context within which one should examine proposals, decisions, and actions by the current Board and the Acting General Counsel pursuant to their statutory responsibility to interpret and administer the nation’s labor relations regime. 

Some Issues of Process and the Institutional Role of the Board 

Let me first distinguish process from substance, as law professors are wont to do. 

Some recent developments are procedural in nature, or relate to the institutional 

role of the Board, rather than affecting the substance of labor relations policy. 

Rulemaking: The Board has traditionally announced changes in its interpretation 

of the Act in the course of deciding particular cases; and it unquestionably has the 

statutory authority to do so.1 On the other hand, courts and commentators, regardless of ideological leanings, have often urged the Board to consider acting more often 

through rulemaking,2 as it also unquestionably has the authority to do.3 As the Supreme Court put it, ‘‘rulemaking would provide the Board with a forum for soliciting 

the informed views of those affected in industry and labor before embarking on a 

new course.’’ 4 Rulemaking—the issuance of a proposed rule, solicitation and consideration of public comments, and then issuance of a final rule—has several advantages: It allows for more thorough consideration of a wider range of views on policy 

issues with implications that extend beyond the parties to a particular case; it facilitates the more efficient adjudication of cases raising recurring issues; and it tends 

to promote policy stability because rules tend to last longer than precedents adopted 

through adjudication. But of course the last advantage follows from the disadvantage that the rulemaking process itself is quite time-consuming. While the Board 

has only rarely proceeded through rulemaking, and may or may not do so beyond 

the one proposed rule issued so far, its decision to do so would be greeted by many 

mainstream observers as a victory for transparency and administrative regularity 

in Board decisionmaking.5

Solicitation of Briefs: Another recent development has been the Board’s solicitation of briefs on a number of issues posed by pending cases.6 As a procedural matter, that approach represents a middle ground between simply rendering revised 

policy judgments through adjudication, which has been the well-established norm at 

the Board, and initiating rulemaking proceedings, which is bound to be a rare undertaking.7 The practice of inviting submission of briefs has at least one of the virtues of rulemaking: It allows interested parties who may be affected by the Board’s 

deliberations to make their case and to introduce relevant viewpoints and considerations that may not otherwise enter the adjudication process. The Board’s approach 

in this handful of cases in which significant policy issues are raised represents a 

clear advance in terms of public notice, participation, and transparency. Moreover, 

the solicitation of views from a wide range of interested parties should not be taken 

to signal any particular outcome on the merits. 

The Board’s Policymaking Role: It is probably not a concern about process, but 

rather speculation about substance, that has brought attention to the initiation of 

one rulemaking and the solicitation of briefs in several cases. But that brings us 

to a related set of issues that relate to the Board’s institutional role under our nation’s labor laws. To begin with, the Board’s role includes a significant policymaking 

component. The Supreme Court ‘‘has emphasized often that the NLRB has the primary responsibility for developing and applying national labor policy.’’ 8 That is the 

scheme that Congress established.9 The Board’s latitude under the NLRA to establish labor relations policy has grown narrower over the years. Although the text of 
22 

many key provisions of the NLRA leaves room for interpretation, much of that interpretive latitude has been whittled down over the past 75 years by Supreme Court 

decisions that have narrowed the scope of the Board’s discretion. Still, within those 

constraints, there is no question that the Board has an important role in interpreting and administering the statute. 

There is also no question that presidential appointments alter the mix of policy 

considerations that Board members bring to the process of statutory interpretation.10 That is by congressional design. Especially in recent decades, that has led 

to a degree of policy oscillation (or ‘‘flip-flopping’’) on a number of recurring issues 

whenever presidential appointments shift majority control of the Board.11 The previous Board majority in particular gained some notoriety for overturning numerous 

precedents, some recent and some well-established. When the Board overturns one 

of its precedents, it may provoke debate among Board members, advocates, and 

scholars over whether the new decision is consistent with the statute (a matter on 

which the courts have the last word), or justified as a matter of policy. But there 

is nothing unusual or illegitimate about the Board’s reconsidering some of its own 

precedents. If the current Board does so—and that remains largely a matter of speculation so far—its decisions will be subject to the normal processes of judicial review 

that confine the Board to carrying out the statute as written by Congress and interpreted by the Supreme Court. 

Preemption: Another dimension of the Board’s role in our national labor relations 

framework relates to the preemption of state and local laws regulating labor relations. Some have criticized the Board and the Acting General Counsel for the decision to threaten suit against four states—Arizona, South Carolina, South Dakota, 

Utah—to enjoin the enforcement of constitutional amendments approved by voters 

in those states last November.12 Each of these new provisions, with small variations, would prohibit workers from seeking union representation, and would prohibit employers from voluntarily recognizing a union, other than through a secret 

ballot election; they would prohibit reliance by either side on union authorization 

cards. To understand how unexceptional the Board’s action is here, it is necessary 

to understand another aspect of the federal labor laws. 

With the enactment of the NLRA in 1935, and then the major Taft-Hartley 

amendments in 1947, Congress created a comprehensive nationwide scheme of labor 

relations. The Supreme Court has long held that the NLRA preempts state and local 

laws and actions that regulate labor relations (with one large explicit exception allowing state right-to-work laws). Under the Supreme Court’s decisions, the NLRA 

preempts not only state and local actions that directly conflict with the federal 

scheme, but those that regulate virtually any aspect of labor relations, including activity that the Act arguably or actually protects, arguably or actually prohibits, or 

intentionally leaves unregulated.13

The Supreme Court has long recognized the power of the NLRB, acting through 

its General Counsel, to sue to enjoin the implementation of preempted state laws, 

and has often done so.14 Of course, the Board may sometimes be able to protect the 

federal interest in other ways, for example, by intervening in a private suit or supporting one as amicus curiae. 

Preemption doctrine is decidedly a double-edged sword. Especially in the last decade, the doctrine has most often blocked state and local actions supported by organized labor (and the Board joined in many of these lawsuits); unions and their advocates have thus argued for a narrower preemption doctrine that gave more room for 

state variation and experimentation. For example, the Supreme Court’s most recent 

labor law preemption decision reversed the U.S. Court of Appeals for the Ninth Circuit and struck down a California statute that sought to ensure that private employers that received state funds (as contractors, for example) did not use those funds 

to support or oppose employees’ efforts to form a union; the Court held that the law 

infringed employers’ ability to speak to their employees on the matter of unionization, as Section 8(c) of the Act left them free to do.15

Sometimes (as in Brown), it is debatable whether the law was preempted. In the 

case of the four state ‘‘secret ballot’’ laws, there is little room for debate. These laws 

would take away a well-established non-electoral route to union representation, long 

recognized by the courts, and would prohibit voluntary recognition of a union on the 

basis of a card majority. Employees’ statutory right to seek, and employers’ power 

to grant, union recognition on the basis of authorization cards was reaffirmed by 

the Board during the Bush Administration in the Dana decision of 2007.16 Of course 

the Dana decision also imposed some new qualifications on voluntary recognition 

based on card check; but that only underscores the extent to which the four state 

laws tread on the core of the Board’s regulatory authority. Just as a state law requiring employers covered by the NLRB to honor card check requests would be preempted by federal law, so is its prohibition. 
23 

So, far from being extraordinary, the Board’s decision to file suit is an unexceptional exercise of its duty to assert its Congressionally-granted jurisdiction over the 

regulation of labor relations in the bulk of the private sector, and to oppose state 

and local laws that are ‘‘preempted’’ by the NLRA. In this context, it would be extraordinary had the Board not taken action against the states. This is an obligation 

imposed upon the Board, regardless of the views its members may have of the underlying policy decisions reflected in the NLRA. The fact that the Acting General 

Counsel promptly notified the states of the NLRB’s position, and sought voluntary 

correction, should be commended. 

The Recent Board Decisions and Actions 

The Board has recently proposed and sought public comment on a new rule that 

would require employers to post a notice informing employees of their rights under 

the NLRA. The proposed rule would merely bring practices under the NLRA into 

line with those under every other major federal employment statute (and some 

minor ones): Currently, employers must post notices informing employees of their 

rights under the Fair Labor Standards Act, Title VII of the Civil Rights Act and 

other antidiscrimination statutes, the Occupational Health and Safety Act, the Family and Medical Leave Act, among others. That uniformity of practice is based on 

the self-evident fact that employees’ statutory rights can be more fully realized if 

they are aware of those rights. It is thus an entirely appropriate exercise of the 

Board’s authority under Section 6 of the Act to ‘‘make * * * such rules and regulations as may be necessary to carry out’’ the Act. 

With regard to adjudications, since April 2010, when the NLRB gained a Democratic majority, it has issued almost 300 decisions. Nearly 100 of those readopted 

previous unanimous decisions issued by the two-member Board (one Democratic and 

one Republican appointee) whose authority to act was struck down by the Supreme 

Court in the New Process decision.17 Of the total of 292 decisions issued since last 

April, over 80 percent were unanimous.18

The remaining decisions were divided, but not always along party lines. For example, Chairman Liebman joined Member Becker in holding that a union flyer to 

employees about union dues obligations constituted an unlawful threat and an unfair labor practice.19 Democratic Member Pearce dissented, and would have dismissed the complaint. In another case, a Board majority required a union to rescind 

its requirement that employees who object to paying full union dues under Beck 

renew their objection annually (a requirement that had first been permitted by Republican-appointed General Counsel Rosemary Collyer).20 Members Schaumber and 

Hayes filed individual opinions, concurring in part & dissenting in part; and Member Pearce filed a dissent. 

In several decisions, Board panels split along party lines—much as past Boards 

have done—but the majority’s decision broke no new ground and overruled no precedents. So, for example, a Board decision required employers who post other employment-related notices electronically to post remedial NLRB notices in the same manner.21 Another split decision attracted more attention, but in fact hewed closely to 

traditional Board law and judicial precedents: The Board held that a union’s peaceful display of stationary banners advising the public of the existence of a labor dispute—with no patrolling and no obstruction of sidewalk traffic or building entrances—did not violate the NLRA because it was not ‘‘coercive.’’ 22 The Board majority recognized that a contrary ruling would raise serious First Amendment concerns—concerns that in recent years had led several federal district courts and the 

Ninth Circuit Court of Appeals to reject the previous Board’s petitions to enjoin 

these peaceful informational displays. The decision is long, methodical, and balanced 

in its assessment of the caselaw both under the Act and under the First Amendment. 

Another long pending case also split the Board panel, with Chair Liebman and 

Member Pierce producing a decision, over Member Hayes’ dissent, that was welcomed by many employers: The Board held that an employer and a union did not 

violate the Act by agreeing on a framework for future bargaining prior to the 

union’s gaining majority support among the employees, noting that the employer in 

this case neither recognized the union nor negotiated the terms of a contract before 

the union was selected by a majority of employees to represent them.23 The Board 

cited the argument of several management attorneys, as well as scholars, that employers’ ability to negotiate a framework of this sort lays the foundation for a productive collective bargaining relationship, and promotes their business interests, in 

the event the employees choose to be represented by the union.24 The Board quoted 

two management attorneys to this effect: 
24 

As in other potential business relationships, the employer should be able to talk 

to the other side and perhaps even reach some preliminary understandings before 

it determines whether it wants to avoid such a relationship or not.25

Moreover, as the Board majority held, employees’ ability to make a free and informed choice regarding unionization was fully protected, and even advanced, by 

their ability to examine the rough outlines of what they would gain through union 

representation and collective bargaining. 

Then there are a number of cases in which the Board has not decided anything, 

but has solicited briefs from interested parties on a number of questions that might 

arise in the cases. In Roundy’s, Inc. (Case No. 30-CA-17185), the question is under 

what circumstances an employer’s refusal to allow non-employee union speakers access to private property constitutes discrimination in violation of the Act. Current 

Board law on this issue has been rejected by some courts of appeals, including the 

6th Circuit in Sandusky Mall v. NLRB,26 which take a narrower view of what constitutes discrimination; other courts of appeals have affirmed the Board’s decisions 

in this area. In its request for briefs, the Board has simply asked the parties to address the question of whether the Board should reconsider the question in light of 

what these reviewing courts have held. It is entirely proper, given the judicial reception the Board’s current caselaw has received, that the Board should give careful 

consideration, and seek a range of views, on this difficult statutory question. 

In Lamons Gasket Co., Case No. 16-RD-1597, the Board has solicited briefing on 

whether it should modify or rescind the Dana I rule. Dana I (which itself overruled 

a 40year old Board precedent) held that that an employer’s voluntary recognition 

of a union based on a card majority does not immediately trigger the ‘‘recognition 

bar’’ that normally follows voluntary recognition—that is, a year-long bar of rival 

or decertification petitions; rather, the recognition bar would begin only after the 

employer had posted for 45-days a Board-approved notice advising employees on 

their right to file a petition to oust the recently recognized union. This rule has required the expenditures of Board resources, and probably delayed the onset of collective bargaining in some cases; but it has apparently reversed very few outcomes. 

After more than two years, the parties now have sufficient experience with this new 

rule to offer valuable input into the Board’s deliberations. The solicitation of briefs 

on this issue thus makes good adjudicatory sense. 

The Board has also solicited views in several additional cases involving bargaining units in long term care facilities,27 the duties of successor employers toward 

an incumbent union,28 and to consider whether the Board should assert jurisdiction 

over an Illinois charter school or whether it is instead exempt from NLRA coverage 

as a government entity.29 These cases are all standard grist for the Board’s mill. 

There is no reason to believe that Board will decide these cases in a manner that 

is any less responsible than that exhibited by other cases it has decided over the 

last year. But perhaps most important for present purposes, the Board has not decided anything. It is hard to understand why the Board would court controversy by 

calling attention to these pending cases and soliciting views on these issues if it did 

not intend to actually consider those views. 

Recent General Counsel Memos 

Two recent memoranda by the Acting General Counsel have drawn some attention. Both address the appropriate remedial response to serious unfair labor practices in the context of union organizing. Many commentators and past General 

Counsels of the Board—Republican as well as Democratic appointees—have lamented the narrow range of remedies available under the statute to address employer interference with employees’ statutory right to choose whether to form a 

union and engage in collective bargaining.30 The statute permits only equitable remedies, which are neither fully compensatory nor calculated to deter illegal conduct; 

they fall far short of the remedies that Congress has seen fit to prescribe in employee rights statutes enacted in the past 50 years, such as the employment discrimination laws. 

The weaknesses of the standard equitable remedies, and the duration of the 

standard adjudicative process, are especially problematic in cases in which the employer may hope to stop an organizing drive in its tracks by firing a leading union 

activist. Absent prompt reinstatement, this illegal firing will predictably chill others 

from joining the union, as well as remove from the workplace a leading union advocate. The fact and the fear of retaliation will ‘‘nip in the bud’’ efforts to unionize, 

even if a remedy is eventually forthcoming years later. And employers facing only 

a long-distant threat of being ordered to reinstate the employee (which is often unrealistic years after a discharge) and to pay backpay (offset by what the employee 

earned or should have earned in the interim) are sorely tempted to violate the Act. 
25 

The Acting GC issued a Memorandum on September 30th, 2010 declaring his effort ‘‘to give all unlawful discharges in organizing cases priority action and a speedy 

remedy.’’ 31 The Memorandum outlined procedures to expedite investigations of discriminatory firing, and to secure prompt GC approvals of requests from the Regional 

Offices for preliminary injunctive relief from the federal courts under Section 10(j) 

of the NLRA. That means that the Board’s attorneys may sue in federal court, and 

if the court concludes that they meet all the normal requirements for preliminary 

relief—in particular a strong probability of success on the merits—the court may 

order the employer to reinstate the discharged employee. 

Following this memo, there was a significant uptick in the number of 10(j) 

cases.32 Of the 59 cases submitted to the General Counsel’s office by the Regional 

Offices, only 16 were submitted to the Board for authorization, and the Board approved 15 to proceed with litigation. The very high success rate on those cases that 

have been concluded (total or partial success in all cases)33 indicates that, far from 

pushing the boundaries of what the law authorizes, the General Counsel and Board 

have acted cautiously and prudently, and brought only strong cases to the courts. 

The number of Section 10(j) injunctions has ebbed and flowed over the years, but 

their usefulness has long been widely recognized. Several General Counsels in the 

past have emphasized the essential role of these injunctions in redressing the impact of discriminatory discharges, especially in the organizing context. For example, 

former General Counsel Meisburg observed that, ‘‘[d]uring my tenure as General 

Counsel, I continued to support the use of Section 10(j) as an essential tool in the 

effective administration of the Act. As has long been recognized, in some unfair 

labor practice cases, the passage of time inherent in the Board’s normal administrative process render its ultimate remedial orders inadequate to protect statutory 

rights and to restore the status quo ante.’’ 34 The current GC’s guidelines and practices do evince a strong focus on protecting employees’ right to decide whether to 

form a union, but they break no new ground, nor is it likely that they will do so, 

given the need to present every one of these cases to a federal court before any injunction can issue. 

In December, 2010, the Acting General Counsel issued a second memorandum in 

which he outlined additional remedies the Board could use to more effectively protect employees’ freedom of choice against serious misconduct by employers in the 

context of union organizing campaigns. In addition to the standard remedies that 

the Board generally pursues—reinstatement and backpay (in discharge cases) and 

cease-anddesist and posting of notices (in other cases)—the General Counsel’s memo 

outlined additional remedies that are designed to mitigate the chilling effect that 

unlawful acts, particularly ‘‘hallmark violations’’ such as discriminatory discharges 

and the threat of job loss and plant closing, can have on employees’ ability to exercise their rights under the Act. Those remedies may include additional provisions 

for affording employees’ notice of prior violations, measures to improve unions’ ability to communicate with workers both at work and away from work. The purpose 

of all of these remedies would be to help recreate an atmosphere in which workers 

feel free to exercise their Section 7 rights. 

It is crucial to recall that these additional remedies are to be sought only against 

employers that have been found to have committed serious violations of the Act. The 

GC’s memo emphasized that the decision to pursue these remedies would be evaluated on a case-by-case basis and only when there was strong evidence of the ‘‘lasting 

or inhibitive coercive impact’’ of the violation and of the potential remedial impact 

of the proposed remedy. Moreover, none of the Board’s remedies can take effect 

without an opportunity for judicial review or judicial enforcement. All three of these 

additional remedies have been repeatedly affirmed by courts—again, in appropriate 

cases in which the standard remedies are shown to be inadequate to remedy the 

effects of serious employer illegality—as well within the range of discretion granted 

the Board as the institution with ‘‘the primary responsibility * * * [for] devis[ing] 

remedies that effectuate the policies of the Act.’’ 35 Once again, there is simply no 

room under the statute for the Board to overreach its authority, even if it were 

moved to do so; and nothing in what the Board or its General Counsel has done 

so far suggests any such inclination. 

Conclusion 

In conclusion, the current Board and Acting General Counsel are doing no more 

and no less than conscientiously carrying out their responsibilities, as prescribed by 

Congress and underscored by the Supreme Court, in administering and enforcing 

the National Labor Relations Act. 
26 

ENDNOTES

1See NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974) (‘‘The Board is not precluded from 

announcing new principles in an adjudicative proceeding[;] the choice between rulemaking and 

adjudication lies in the first instance within the Board’s discretion’’); NLRB v. Wyman-Gordon, 

394 U.S. 759 (1969). 2See Bell Aerospace, supra note 1, at 295; NLRB v. Majestic Weaving Co., 355 F.2d 854, 860 

(2d. Cir. 1966). Encouragement of rulemaking is a recurring refrain among commentators. See 

James J. Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. L. 

& POL’Y. J. 221 (2005); Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for 

Rulemaking, 37 ADMIN. LAW REV. 163 (1985); Catherine L. Fisk & Deborah C. Malamud, The 

NLRB in Administrative Exile: Problems with its Structure and Function and Suggestions for 

Reform, 58 DUKE L. J., 2013 (2009); Kenneth Kahn, The NLRB and Higher Education: The 

Failure of Policymaking through Adjudication, 21 U.C.L.A. L. REV. 63 (1975); Cornelius J. Peck, 

The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 YALE L.J. 729 

(1960). 3See Section 6 of the NLRA: ‘‘The Board shall have authority from time to time to make, 

amend and rescind, in the manner prescribed by subchapter II of chapter 5 of Title 5, such rules 

and regulations as may be necessary to carry out provisions of this subchapter.’’ The Supreme 

Court upheld this authority in American Hospital Association v NLRB, 499 U.S.606 (1991), having previously encouraged its more frequent use in Bell Aerospace, supra note 1. 4 Bell Aerospace, supra note 1, at 295. 

5The one rule that the Board has actually proposed through rulemaking proceeding, as discussed below, is well-grounded and long-overdue. 6So for example, in one such amicus brief, a group supporting the employer on behalf of ‘‘businesses of all sizes from every industry sector in every region of the country’’ noted that it 

‘‘welcome[d] the opportunity’’ to express its views to the Board. Brief for Coalition for a Democratic Workplace as Amicus Curiae Supporting Respondent, Roundy’s, Inc., Case No. 30-CA17185 (2011). 7This process has been used by the Board before, but not often enough in the view of Professor Samuel Estreicher, for example. Samuel Estreicher, Policy Oscillation at the Board: A 

Plea for Rulemaking, 37 ADMIN. L. REV. 163, 174 (1985). 8 Curtin Matheson Scientific v. NLRB, 494 U.S. 775, 786 (1990) (citing Beth Israel Hospital 

v. NLRB, 437 483, 500-501 (1978); NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); NLRB 

v. Truck Drivers, 353 87, 96 (1957)). 9 As the Court has explained, ‘‘it is to the Board that Congress entrusted the task of ‘applying 

the Act’s general prohibitory language in the light of the infinite combinations of events which 

might be charged as violative of its terms’ ’’; if the Board ‘‘is to accomplish the task which Congress set for it, [it] necessarily must have authority to formulate rules to fill the interstices of 

the broad statutory provisions.’’Curtin Matheson, 494 U.S. at 786 (citing Beth Israel Hospital, 

437 U.S. at 500-501, and Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945)). 10 As the Supreme Court has emphasized, ‘‘[t]o hold that the Board’s earlier decisions froze 

the development of this important aspect of the national labor law would misconceive the nature 

of administrative decisionmaking.’’ NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265-266 (1975). 

See also Curtin Matheson, 494 U.S. at 786 (‘‘A Board rule is entitled to deference even if it represents a departure from the Board’s prior policy’’). 11Samuel Estreicher, Policy Oscillation at the Labor Board: A Plea for Rulemaking, 37 

ADMIN. L. REV. 163 (1985). 12The Acting General Counsel’s letter to the Attorneys General sought to secure voluntary 

resolution of the preemption conflict without ligitation. But the Attorneys General of the four 

states vowed to defend the new provisions, and called the decision to threaten suit against them 

‘‘extraordinary.’’ A.G. Response to NLRB Concerning Secret Ballots, January 27, 2011, available 

at http://attorneygeneral.utah.gov/cmsdocuments/nlrb012711.sol.pdf. 

13The Supreme Court concisely summarized its preemption doctrine recently in Chamber of 

Commerce v. Brown, 554 U.S. 60, 64 (2008): Although the NLRA itself contains no express preemption provision, we have held that Congress implicitly mandated two types of pre-emption 

as necessary to implement federal labor policy. The first, known as Garmon pre-emption, see 

San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), ‘‘is intended to preclude 

state interference with the National Labor Relations Board’s interpretation and active enforcement of the ‘integrated scheme of regulation’ established by the NLRA.’’ Golden State Transit 

Corp. v. Los Angeles, 475 U.S. 608, 613 (1986). To this end, Garmon preemption forbids States 

to ‘‘regulate activity that the NLRA protects, prohibits, or arguably protects or prohibits.’’ Wisconsin Dept. of Industry v. Gould Inc., 475 U.S. 282, 286 (1986). The second, known as Machinists pre-emption, forbids both the [NLRB] and States to regulate conduct that Congress intended 

‘‘be unregulated because left ‘to be controlled by the free play of economic forces.’ ’’ Machinists 

v. Wisconsin Employment Relations Comm’n, 427 U.S. 132, 140 (1976) (quoting NLRB v. NashFinch Co., 404 U.S. 138, 144 (1971)). 14 NLRB v. Nash-Finch Co., 404 U.S. 138 (1971). 15 Chamber of Commerce v. Brown, 554 U.S. 60 (2008). 16Dana Corp., 351 N.L.R.B. 434 (2007) (‘‘We do not question the legality of voluntary recognition agreements based on a union’s showing of majority support. Voluntary recognition itself 

predates the National Labor Relations Act and is undisputedly lawful under it.’’). 17 BNA Daily Labor Report, January 21, 2011, NLRB Has a Full Docket, Major Cases, and 

Plans for an Active Year. 18For example, in Jackson Hospital Corp., d/b/a Kentucky River Medical Center, 356 NLRB 

No. 8 (October 22, 2010), the Board unanimously authorized daily compounding of interest on 

backpay awards, in response to requests by past General Counsels, both Republican and Demo-
27 

cratic appointees, over ten years, and consistent with the universal practice of awarding compound interest on damage awards in other areas of the law. 19SEIU, Local 121RN, 355 NLRB No. 40 (2010) 20Machinists Local Lodge 2777 (L-3 Communications), 355 NLRB No. 174 (2010). 21 J & R Flooring, Inc., d/b/a J. Picini Flooring, 356 NLRB No. 9 (2010). 22Local 1506, UBC (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010): 23Dana Corp. and International Union, UAW, Cases 7-CA-46965, 7-CA-47078, 7-CB-14083, 7- 

CA47079, 7-CB-14119, 7-CB-14120 (Dec. 6, 2010) (Dana II). 24See, e.g., Marshall Babson, Bargaining Before Recognition in a Global Market: How Much 

Will It Cost?, 58 LAB. & EMPL. REL. ASS’N SERIES 113 (2006), available athttp:// 

www.press.uillinois.edu/journals/irra/ proceedings2006/babson.html; Stanley J. Brown & 

Henry Morris, Jr., Pre-recognition Discussions with Unions in U.S. LABOR LAW AND THE FUTURE OF LABOR-MANAGEMENT COOPERATION: SECOND INTERIM REPORT—A WORKING DOCUMENT 98, 99 (U.S. Dep’t of Labor, 1988). 25Dana II, citing Brown & Morris, supra. 26 242 F3d 682 (2011). 27Specialty Healthcare, Case No. 15-RC-8773 28 UGL-Unicco Service Co., Case No. 1-RC-22447; Grocery Haulers, Inc., Case No. 3-RC-11944 29 Chicago Mathematics & Science Academy Charter School, Inc., Case No. 13-RM-1768 30Former General Counsel Ronald Meisburg focused much attention, for example, on the need 

for stronger and faster remedies in first 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 * * * [In these circumstances] 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. Memorandum GC 07-08, Additional Remedies in 

First Contract Bargaining Cases (May 29, 2007). 31Memorandum GC 10-07, Effective Section 10(j) Remedies for Unlawful Discharges in Organizing Campaigns, from Lafe Solomon to all Regional Directors, September 30, 2010. 32From October 1 through December 31, 2010, regional offices submitted 59 recommendations 

for Section 10(j) relief to NLRB headquarters—43 petitions more than were submitted by the 

regions during the same quarter in FY 2009. BNA Daily Labor Report, January 21, 2011, NLRB 

Has a Full Docket, Major Cases, and Plans for an Active Year. 33 NLRB Statistics, 10(j) Authorizations, 1st quarter FY 11; 11 of 15 cases were concluded, 

while 4 remained open at the end of the quarter. Of the 11 cases pursued to conclusion, 7 were 

settled and 4 concluded in court (all 4 of which resulted in either a complete or partial win for 

the NLRB). 34 End-of-Term Report on Utilization of Section 10(j) Injunction Proceedings, January 4, 2006 

through April 30, 2010 (June 2, 2010). See also GC 07-01, December 16, 2006 (‘‘Section 10(j) 

relief is particularly well suited to accomplish the goal of protecting the representational choice 

of employees, collective bargaining, and labor peace, while also encouraging the use of Board 

election processes.’’) 35Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 899 (1984). See, e.g., United Steelworkers of America 

v. NLRB, 646 F.2d 616, 640 (D.C. Cir. 1981) (upholding a Board order granting the union broad 

rights of access to a plant where repeated unfair labor practices occurred, as well as to two 

plants where organizational activity had been conducted and all other company locations where 

no organizational drives had yet begun, as ‘‘within the authority of the Board to impose’’; ‘‘the 

Board was clearly entitled, in shaping its remedial order in this case, to consider the extensive 

record of past unlawful activity. * * *’’); J. P. Stevens & Co. v. NLRB, 388 F.2d 896, 906 (2d 

Cir. 1967) (upholding Board order granting union access to company bulletin boards in order 

‘‘to dissipate the fear in the atmosphere within the Company’s plants generated by its anti-union 

campaign.’’); Montgomery Ward & Co. v. NLRB, 339 F.2d 889 (6th Cir. 1965) (enforcing a Board 

order granting the union equal time to address employees after the employer unlawfully prohibited employee solicitation in nonworking areas of the store during nonworking time). 

Chairman ROE. Mr. King. 

STATEMENT OF G. ROGER KING, PARTNER, JONES DAY 

Mr. KING. Thank you Chairman Roe. Thank you again for having 

me before this committee. I appreciate the opportunity. And ranking members and minority members, thank you also for having me. 

I am going to start with preemption, since that seems to be a 

subject of some interest. It is debatable whether we are in a preemptive mode with respect to State actions just described. One solution to that is for this body to pass the Secret Ballot Protection 

Act to avoid all of the litigation that might be attendant thereto, 

and hopefully this committee will take that up in this Congress. 
28 

Let me move to my remarks. I am going to go through them, and 

they are summarized at page 2 through page 5. 

We can debate about what the Board does or does not do. Reasonable people can differ. The distinguished panel I am with here 

today I would share some of their viewpoints, I would differ with 

some of the professor’s viewpoints. I do think that people serving 

on the Board are of high integrity and they are trying to do the 

best they can, including the acting general counsel. 

One of the principle problems we have at the very outset of this 

discussion is we don’t have a fully confirmed board. We only have 

two confirmed Democrat members and only one confirmed Republican. That is not a good policy irrespective of one’s viewpoint. We 

ought to have a fully confirmed five member board to make these 

important decisions that impact our Nation’s labor laws. 

The Chair of the Board, Chairman Liebman, has so stated, and 

I mention it in my testimony, her statement on the record in a case 

where she states there is a long held tradition at the Board to have 

five members making decisions. I think we should pause a moment 

here before we engage particularly in rulemaking until we get a 

full five member complement. Then we can proceed to have whatever discussions and whatever the case adjudication we might 

have. 

Second, I am quite concerned, as many employers are, about the 

accelerated nature of the decision making process. 

What is really happening, ladies and gentlemen, is the Board is 

hurrying up its agenda apparently to accommodate one very controversial member, the recess member, Craig Becker, and apparently the Chair, whose term will expire in August. That is not good 

sound public policy, irrespective of how we come out on these 

issues. 

Why not use the Administrative Procedure Act with all its safeguards and proceed in a thoughtful manner? There is precedent for 

that. I was involved when the health care rule was promulgated. 

There the Board held multiple hearings, took testimony, went to 

great lengths to be careful about how it proceeded. That is not the 

picture we are seeing here today. 

Third, the procedural framework that some of the cases are coming to the Board and the requests for amicus briefs, which might 

help in part, but they don’t substitute for the Administrative Procedure Act. Simply filing a brief does not substitute for thorough 

hearings, thoughtful analysis. That is a misnomer. There is no middle ground here. I differ with my colleague on that point. We need 

to be careful. But this board has, sua sponte, raised issues that are 

not even the cases before them. 

Next, there is precedent for this body to withhold funding for this 

or any other agency that engages in particularly rulemaking that 

is not appropriate. That has happened in the past. This body, for 

3 fiscal years, as noted in my testimony, refused to fund an initiative, a rulemaking initiative of the Board. Subsequently, the Board 

withdrew that rule. 

With respect to the Office of General Counsel, yes, very active, 

we all would agree but the action regarding deferral with respect 

to arbitrations and how that works has been turned upside down. 

Not a good idea. We can talk more about that. But it is going to 
29 

chill the use of private dispute resolution procedures used by both 

unions and employers. 

Furthermore, the 10(j) injunction approach, where virtually any 

and every case is a 10(j) injunction, makes no sense. It chills particularly small business and its ability to respond. They can’t afford 

to win. 

Finally, I would points out to this committee that the President, 

through his executive order on January 18, asked the entire government to be more careful about rules and regulations. Now traditionally, such an executive order is not applicable to administrative 

agencies. OMB then earlier this month said, yes, all administrative 

agencies should so proceed. U.S. Chamber of Commerce has also 

asked that each administrative agency so proceed. 

Hopefully, the National Labor Relations Board will follow the 

dictate of the President’s executive order. I have not seen anything 

at all from the Board, but to reexamine these rules and regulations. 

Mr. Chairman, I would be pleased to answer questions as we proceed. Thank you. 

Chairman ROE. Thank you. 

[The statement of Mr. King follows:] 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 
40 
41 
42 
43 
44 
45 
46 
47 

EXHIBIT B
48 
49 

[Exhibits C and D submitted by Mr. King may be accessed at the 

following Internet address:] 

http://www.nlrb.gov/search/nlrbdocsearch/Roger%20King%2030-CA-017185?page=1 

Chairman ROE. And our first questioner will be Dr. Heck. 

Mr. HECK. Thank you. My question is for Mr. King. Mr. King, on 

December 22 of last year the Board invited briefs on Specialty 

Healthcare and Rehabilitation Center of Mobile to determine what 

constitutes an appropriate bargaining unit. Although the case involved nursing homes directly, the Board requested comments that 

appeared to cover hospitals both acute and nonacute health care fa-
50 

cilities. It is my understanding that you represent a number of 

health care facilities. 

Currently, how are bargaining units determined in acute and 

nonacute health care facilities? And what is your opinion of the 

current procedures? And how would it change to the determination 

of bargaining units affect hospitals and patient care? 

Mr. KING. A number of points to your question. First of all, the 

specialty health care case is of a questionable vehicle, Congressman, to even raise these issues. Nowhere in the underlying facts 

of that decision were the broad policy issues the Board is now trying to tee up, if you will. So that is a questionable procedural backbone. 

Second, the rulemaking process for nonacute care, long-term care 

facilities, there is no support to even engage in that. We have already done some support analysis and research. The number of 

cases that are contested in that area are virtually nil that get to 

the Board. We don’t even understand why this is going on. 

Third, this approach in question 7 and question 8 of the notice 

for amica participation, interested party participation, would expand it to all industries. Why are we doing that in a rather runof-the-mill representation case and potentially overturning law in 

all areas, including hospitals perhaps? It makes no sense, Mr. Congressman, and I don’t know we are proceeding that way. And that 

is one of the underlying problems here. We have a very activist 

board that appears to go by the back door, not through rulemaking. 

This is not a rulemaking approach. They refuse to do so. So I think 

your questions raise serious policy concerns. 

Mr. HECK. Do you believe that this type of rulemaking decision 

making has an impact on patient care? 

Mr. KING. Absolutely. I can tell you as an active practitioner, I 

am in a hospital maybe 3 or 4 times a week somewhere in the 

country. We right now are having to litigate issues over access. 

I was talking to the chairman earlier today. If a hospital lets in 

the Red Cross or the American Heart Association, for example, for 

some charitable activity, under the Chair’s view, at least in a dissent, and existing board law, that hospital has to let everyone else 

in, including any union or any other group. And that causes chaos. 

We have here in the District of Columbia just recently had to escort out of our corridors union organizers. They are up on nursing 

floors. And the hospital is not sure how far it can go because it 

might get an unfair labor practice charge. 

This interferes just in that area alone. Banners and picketing, 

these banners that are so mild apparently to some are very disruptive to others. We have had in Florida institutes where a union put 

in front of a hospital caskets, albeit they weren’t real, skeletons, albeit they are not real, and someone dressed up as the grim reaper 

marching back and forth. What kind of an environment is that for 

a patient coming into a hospital? I could go on. I know my time 

is limited. But absolutely, you are right on your question. 

Mr. HECK. Thank you, Mr. King. Thank you, Mr. Chairman. I 

yield back. 

Chairman ROE. Thank you. Ranking Member Andrews. 

Mr. ANDREWS. Thank you, Mr. Chairman. Again, thank the lady 

and gentlemen for their testimony which I apologize for not being 
51 

present when you spoke, but I did read it and it was all very well 

thought out and very helpful. Thank you. 

I wanted to ask Mr. Miscimarra, did I pronounce your name correctly? And also Mr. King, welcome back to the committee, I think 

in both cases. Could you outline for me your concerns about the 

general counsel’s letter to the States that are enacting or attempting to enact State law that the general counsel believes are preempted with card check or whatever. What are your concern about 

those letters? 

Mr. MISCIMARRA. I share the same concerns that were articulated by Arthur Rosenfeld to my left. I think that the better way 

to approach those particular issues is for them to be addressed by 

the Congress. And one of the themes that really, I think, goes 

through many of the things we are discussing at the hearing is the 

lead from these, on many of these issues, should come from the 

Congress rather than have the Board at the forefront of some of 

them. 

Mr. ANDREWS. Mr. King, what do you think? 

Mr. KING. Good to see you again. 

Mr. ANDREWS. Nice to see you. 

Mr. KING. Your Cornell Law School education I am sure will get 

you through this analysis. 

Mr. ANDREWS. People from Cornell Law School have a way to 

seeing things well, don’t we? We are proud to have you in our 

alumni body. 

Mr. KING. Thank you very much. The preemption discussion is 

a difficult one. In the California case that was mentioned earlier 

by Mr. Rosenfeld, our firm litigated. We were successful in the 

United States Supreme Court having that statute overturned as 

being preempted. 

However, what we are dealing with with respect to the different 

State initiatives are constitutional initiatives. That, I think, is the 

important distinguishing characteristic. But the preemption issue, 

Mr. Andrews, is a difficult one. You know that. I think the better 

course of action would be for the Congress to enact the Secret Ballot Protection Act to avoid all of this litigation. 

Mr. ANDREWS. I am asking something of a different question. 

And that is, do you think there is anything inappropriate about the 

general counsel sort of taking the lead on writing the letters that 

were written, statements made to the States trying to do constitutional amendments? 

Do you have any problem with that? 

Mr. KING. I believe it is appropriate to the general counsel to 

raise the question. I would ask the general counsel, the acting general counsel, to raise those same concerns in the literally hundreds 

of initiatives that organized labor is pursuing, that would also be 

exempted which we don’t see. 

Mr. ANDREWS. Because in reading your testimony, I think it is 

a fair statement that you would characterize those actions by the 

general counsel as part of the culture of the labor board that discomforts you. Is that a fair statement? 

Mr. KING. It clearly falls within the definition of the very activist 

nature of this present board and its general counsel. 
52 

Mr. ANDREWS. I think it is actually one of the points that you 

make in your written testimony about what is wrong with the sort 

of aggressive and unbiased board. Is that fair to say that? 

Mr. KING. It would fit within those remarks yes, sir. 

Mr. ANDREWS. I just want to ask, one of your fellow panelists, 

Mr. Rosenfeld, on November 26, 2003, when he was general counsel, wrote a letter to the attorney general of North Dakota. And 

North Dakota, at the time, was considering, I believe, statutory law 

that afforded employees certain rights not afforded by the National 

Labor Relations Act. And the letter which I would ask be entered 

in the record from Mr. Rosenfeld essentially said, these would be 

preempted, we think that North Dakota shouldn’t do what it is 

doing, and he said he was hopeful that the State of North Dakota 

would agree to take voluntary measures to repeal the statute, 

which, of course, is, I am from New Jersey, so I know what the implication there was, if you don’t take the voluntary measures there 

are other things that we could do. I am suggesting they would have 

been legally appropriate measures obviously in this case. So was he 

wrong, Mr. King, when he wrote that letter? 

Mr. KING. Mr. Rosenfeld? 

Mr. ANDREWS. Yes. 

Mr. KING. He was acting pursuant to his statutory duties at the 

time. 

Mr. ANDREWS. Isn’t the general counsel doing exactly that now? 

Mr. KING. I would concur, as I said earlier, that Acting General 

Counsel Solomon had a duty to raise the issue. I think it would not 

be wise to initiate litigation. And again, the proper place to settle 

this discussion is here in this body. 

Mr. ANDREWS. Mr. Rosenfeld, did you have to initiate litigation 

against North Dakota? Do you remember? 

Mr. ROSENFELD. I honestly don’t remember that particular issue. 

I do note, however, that the tone of the letter was more gentile as 

you described it. 

Mr. ANDREWS. It was much more gentile than New Jersey language, I will give you that. But you did say, you hoped it could be 

dealt with voluntary, but obviously you had the authority as general counsel to initiate litigation. Is there anything wrong with initiating litigation if they had refused to voluntarily repeal the statute? 

Mr. ROSENFELD. No. 

Mr. ANDREWS. Thank you very much. I yield back the balance of 

my time. 

Chairman ROE. Thank you. Mrs. Roby. 

Mrs. ROBY. Thank you, Mr. Chairman. And thank you to the witnesses for your thoughtful testimony. Representing a district that 

is a right-to-work State, the activist agenda of the current National 

Labor Relations Board greatly concerns me. And while I strongly 

feel that employees’ rights should be protected and that they 

should have a right to organize and negotiate with their employer, 

I feel equally strong about protecting an individual from being 

forced to join a union or an employer being coerced by a national 

labor union. 

Just this week, the U.S. Bureau of Labor Statistics reported that 

in my State of Alabama, the number of workers belonging to a 
53 

union was 183,000. This accounts for 10.1 percent of wage and salaried workers. An additional 20,000 wage and salary workers were 

represented by a union in their main job or were covered by an employee association contract while not being union members themselves. 

Nationally, the number of workers belonging to unions fell by 

612,000 to 14.7 million in 2010, which, on the national level, is 11.9 

percent of employed wage and salary workers. Even though Alabama is slightly lower than the national average, it is far ahead 

of many other States. It concerns me the attempts of the national 

union groups and the current NLRB attempts to remove the constitutional right to freedom of association that Alabama and other 

right-to-work States are committed to protecting. 

The recent rulings of the NLRB have demonstrated a pro union 

approach in an attempt to erode Alabama and other right-to-work 

State status. 

So my question is for Mr. Miscimarra, regarding the December 

21, 2010 publishing of a substantive notice of proposed rulemaking 

requiring almost all covered employers to post a notice of employee 

rights in the workplace. So does the Board have the authority to 

require the posting of a notice covering the employee rights in the 

workplace, and then following that, ignoring whether the Board 

has the authority to require the posting of such notice, what should 

be included in the notice to provide employees with an unbiased 

understanding of their rights? 

Mr. MISCIMARRA. Thank you, Congresswoman. I will also address 

the point made by Professor Estlund, which is, and many people 

look at those notice issues and say, well, it is just another notice. 

And I think there are a couple of points that are relevant which 

indicate that this is really not appropriately within the Board’s authority. 

First, a number of statutes, and the Board has identified this in 

their proposed rule, the Age Discrimination in Employment Act, 

title 7, the Fair Labor Standards Act, the Occupational Safety and 

Health Act, that have explicit provisions in the statutes that require the posting of a notice. And what is conspicuously absent 

from the National Labor Relations Act is a similar requirement. 

I also think that there is some overreaching at the present time, 

union membership constitutes 6.9 percent of the private sector, but 

the Board would have these notices posted in almost all of the employers that are subject to the Act. And I also think that the content of the proposed notice that has been distributed by the Board 

is troublesome in a couple of different respects. 

First, there is nothing in the proposed notice that relates to decertification union representative status. And if you are going to instruct somebody to ride the bus, you should cover getting on the 

bus and getting off the bus. 

Also there is no reference to right to work State laws, there is 

no reference to Beck financial core membership rights, and the last 

two things that I find most troubling is that the proposed rule that 

would relate to the posting of the notice actually creates a new unfair labor practice. We have been calling it section 8(a)(6), a new 

one for labor practice that could also result in an adverse inference 
54 

in certain types of cases against the employer if the notice hasn’t 

been posted. 

And also if there is a failure to provide the notice, the Board’s 

proposed rule indicates that there would be a tolling, basically an 

overriding of the statute of limitations. 

And the last two things that I have mentioned really represent 

changes, substantive changes in explicit provisions of the Federal 

Act. 

Mrs. ROBY. Thank you so much, Mr. Chairman. I yield back. 

Chairman ROE. Thank you. Mr. Kildee. 

Mr. KILDEE. Thank you, Mr. Chairman. Ms. Estlund, has the authority of the NLRB to issue substantive regulations been upheld 

by the courts? Your testimony said that the courts have actually 

encouraged NLRB to use more rulemaking. 

Could you tell us what why this is so? 

Ms. ESTLUND. Yes, certainly. Commentators across the spectrum 

have encouraged the Board to make greater use of its rulemaking 

powers. The court has specifically upheld its rulemaking powers. 

And I think this particular rule, I am kind of amazed that it has 

become controversial at all. The National Labor Relations Act is 

the only statute as to which there isn’t already a requirement that 

employers post notices informing workers of their rights. 

Now, of course the issue of the content of the posters is something that will be discussed in the rulemaking proceeding but the 

contents that has been proposed seems to me quite a fair, balanced, 

and concise description of what employees’ rights are. Some of the 

particular omissions that Mr. Miscimarra referred to are only relevant once there is a union in place. 

It might be actually more important, given the very low percentage of workers who are involved in unions, to alert workers to their 

rights in general. All workers have rights under the National Labor 

Relations Act. 

So I think it is an excellent example of the Board’s power under 

section 6 of the Act to pass rules in order to further the purposes 

of the Act. 

Mr. KILDEE. Thank you. Historically, the National Labor Relations Board has operated under both Democratic and Republican 

administrations, it was passed in 1935 under the Wagner Act, it 

was operated under both those administrations to uphold Federal 

law. 

Professor Estlund, how have the recent decisions of the Board 

been consistent with rulings from previous administrations? 

Ms. ESTLUND. Well, the decisions that I have seen, very few of 

them have been, have departed remotely from prior precedent. 

They have simply carried forward the mission of the Board. None 

has squarely overruled precedent as best I can tell. I am quite sure 

about that. They have shown a renewed focus on enforcing employees’ rights under the Act. That is in the nature of the process in 

which different administrations bring different focus to their approach to the Act. But they seem to me to be very careful, very meticulous, and very consistent with existing board precedent, and in 

some cases, the reception that the Board has gotten from the courts 

to some of its decisions and efforts by the past general counsel. So 
55 

I think it has been actually a model of the Board’s role in enforcing 

its statutory authority. 

Mr. KILDEE. Can you discuss with us how the National Labor Relations Board has operated in a more open and transparent process 

compared to previous years? 

Ms. ESTLUND. Well, I think the effort to use rulemaking is one 

example of that. Rulemaking is a model of open and relatively 

transparent decision making. They may or may not do that in future cases, we don’t know. But I think the invitation of briefs in 

several cases is a very good example of something that given the 

Board’s authority to make policy judgments in the course of deciding cases, it is a good idea to solicit a wide range of views when 

there are those policy issues raised. 

Now we shouldn’t prejudge the Board’s decisions on those policy 

issues. All of the rather alarmist discussion recently about what 

might happen down the line, we have to remember the Board 

hasn’t even ruled in these cases yet, and if it does, its rulings will 

be subject to judicial review. 

Mr. KILDEE. And the changes in different views that we receive 

reflected in NLRB, these are found in every agency, are they not? 

These are not unique, these are people or even in courts, you find 

permutations. 

Ms. ESTLUND. Yes. And given the fact that Congress has not 

made any significant amendments to the core of the Act since 1959, 

one can make an argument for 1947 on that score, the Board’s policy-making authority and efforts to keep the Board law up to date 

to the extent that the statute allows that, is really important. 

The Board was set up to reflect to some extent changing political 

determinations by the people. And so it has had some oscillation 

back and forth. Nothing that this board has done or proposed to do 

seems to go beyond the historic modest back and forth in a narrow 

range of issues. 

Mr. KILDEE. 1947 was the Taft Hartley law. 

Ms. ESTLUND. Yes, that was a big change. In 1959 there was 

some significant but not huge changes. Since then, the changes 

have been relatively minor other than the health care amendments 

were significant for the health care industry but not the Board. 

Mr. KILDEE. Thank you very much for your testimony. 

Chairman ROE. Thank you. Mr. Thompson. 

Mr. THOMPSON. Thank you, Mr. Chairman. Thanks to the panel 

for bringing your expertise on this issue today. 

Mr. Miscimarra, I am looking at something that the Board did 

on August 27, 2010 when they requested briefs on the Dana Corporation, commonly referred to as the Dana/Metaldyne and Dana/ 

Metaldyne the Board modified its recognition bar principles giving 

employees and rival unions 45 days in which to demand a secret 

ballot election if their employer voluntarily recognized a union. 

Now, according to the NLRB, as of August 18, 2010, the NLRB 

has received 1,111 requests for voluntary recognition notices, 85 

election petitions were filed and 54 elections were conducted. In 15 

of those elections, employees voted against voluntary recognized 

unions, including two elections in which a petitioning union was selected over the recognized union. 

And here is my question. That was kind of background. 
56 

If the NLRB reverses Dana/Metaldyne, what recourse would employees have if their employers agreed to recognize a union based 

on authorization cards? 

Mr. MISCIMARRA. In your question is really the answer, Congressman. What is happening in these cases is an employer has 

made the decision in extending voluntary recognition to the union 

and employees have not had an opportunity to have what governs 

the political process in this country, secret ballot election. And so 

in the situation that you have just described, you have an employer 

that makes the decision to extend voluntary recognition, and we 

have already seen a significant number of employees subsequently 

pursuant to the opportunity afforded them in Dana/Metaldyne to 

turn around after they receive a notice of voluntary recognition, 

they then have 45 days in order to, they have a window in which 

to submit to file a decertification petition. 

If that window is taken away from them, then you are in a situation where the employer has made a decision to extend recognition 

to the union, you have employees, at least a showing of 30 percent 

of employees, who have expressed an interest in decertification, 

and they don’t have the opportunity, the decertification petition 

will be dismissed if the precedent established by Dana/Metaldyne 

goes away. 

Ms. ESTLUND. If I could just answer the Congressman’s question 

directly, after 1 year, if there isn’t a collective bargaining agreement, the workers can always vote out the union, and I would like 

to point out the numbers, 99 percent of the cases in which a Dana 

notice was requested have resulted in no change. It has been a 

very, very tiny percentage of workers that, in which this made any 

difference. 

Mr. KING. If I may, Congressman, that is exactly the point. Why 

are we reconsidering this well-thought-out, and, well-established 

principle? This board has asked for briefs on this issue. It has 

given every indication it is going to overturn this basic right of employees to vote on whether they want this particular arrangement 

to go forward or not. That is one of the reasons why we are here 

today. Why are we even spending time revisiting that issue? Your 

question is an excellent one. 

Mr. THOMPSON. My second question is kind of an issue that you 

had raised, Mr. King, before and I wanted to get some follow-up 

from you and Mr. Miscimarra, and it had to do with the NLRA provide that it is unlawful for a union to quote threaten, coerce or restrain a secondary employer not directly involved in a primary 

labor dispute with the objective of forcing or requiring any person 

to cease doing business with any other person. 

However, in this specific incident I point to, is in the United 

Brotherhood of Carpenters and Joiners of America, local 1506, the 

Board held that the unions may display large stationary banners 

including, and you describe mock coffins and skeletons also was 

used in another situation, inflatable rats in front of a neutral employer’s business. 

And in light of this holding, what is left of the prohibition 

against secondary boycotts? And frankly, how does this affect employers? 
57 

Mr. KING. Mr. Thompson, I think in large part, I would disagree 

with my colleague. The Board has really read out of the statute 

any secondary activity. There are some limits, I would concede 

that. 

Another important point here is the Board not focusing on the 

truthfulness or lack thereof of some of the statements that go with 

the inflatable rat, inflatable cockroach, the coffins, the skeletons. In 

fact, in the jobs issue, this type of activity is designed to put businesses on point if they don’t go to the direction that the labor union 

in question wants them to go to, they are out of business. It is pressure. It is just pressure. But they are secondary. They are not even 

involved in the dispute in the first instance. 

Mr. MISCIMARRA. If I could add to that, Congressman, what is 

happening in these cases, we are using the term ‘‘neutral,’’ we are 

talking about union pressure and including these large banners, 4- 

foot by 20-foot banners that are being set up in front of an employer with whom the union has no dispute. So this is all secondary 

pressure that is directed towards employers that don’t even have 

a dispute with the union except the union wants to pressure somebody else. 

And if you were a union representative after these cases have 

been issued, and if you have a dispute with me, I do business with 

eight other people, and you want to pressure me by setting up big 

displays and banners at eight different places for eight different 

companies who themselves don’t have any dispute with a union, 

your choice is to go up with small picket signs and have people 

walk around in front of the eight different establishments, and that 

would be declared unlawful, or you could get a 20-foot banner, put 

it up at eight different establishments, and that would be declared 

lawful. 

I think that goes against the grain of provisions in the act that 

weren’t simply added to the act in 1947. The Congress two separate 

times, in 1947 and 1959, devoted significant attention to the act’s 

secondary boycott provisions, and I think these banner cases really 

do violence to the scheme—— 

Chairman ROE. Commissioner, can you wrap that up? 

Mr. MISCIMARRA. Yes, thank you. That has been long established. 

Mr. THOMPSON. Thank you, Mr. Chairman. 

Chairman ROE. I would appreciate it if you stay to the 5-minute, 

Mr. Holt. 

Mr. HOLT. Thank you, Chairman Roe. 

I would like to direct some questions to Ms. Estlund. Actually, 

first of all, since the ranking member began our attention to our 

alumni allegiances, I would like to point out that I was a graduate 

student at New York University, relevant to the discussion here, 

although my time there preceded any litigation, and I was not in 

the law school, rather in the physics department. 

I would also like to point out hanging on the wall over here the 

portrait of Mary Norton, chairman of this committee in the 1930s, 

who oversaw the passage of the NLRA, the Fair Labor Standards 

Act and other such important legislation. 

Ms. Estlund, you commented that the rulings, meaning both the 

adjudications as well as the rulemaking, in the last couple of years 

or last year hasn’t really broken new ground, and I think—I do 
58 

want to make sure that I am clear that you say that the law is 

really quite stable. 

And I wanted to talk about the posting of employee rights. As 

you understand it, this is not breaking new ground either in requiring posting or in what is being posted. For example, it says 

under the NLRA, you, whether you are a union member or not, can 

form, join or assist a union, bargain collectively, discuss the terms 

of your employment with coworkers, take action to improve your 

working conditions, or choose not to do any of these activities. 

Your employer may not prohibit you from soliciting for a union 

during break time, question you about your union support, fire or 

demote you in connection with that, prohibit you from wearing Tshirts, spy on you for peaceful activities; and the union may not 

refuse to process a grievance if you have criticized union officials 

not being a member of the union, and so forth. 

Am I clear that this is pretty standard established language? 

Ms. ESTLUND. It seems to me to be clear and balanced and about 

as much information as you could get on a poster that workers are 

supposed to be able to read and understand. If there are particular 

problems, this is exactly the kind of thing that people can comment 

on in rulemaking, but it strikes me as a very balanced presentation 

of the law. 

Mr. HOLT. What is the importance of having something like this 

in light of the 6-month statute of limitation on seeking enforcement 

of one’s rights, also in light of workers’ level of knowledge about 

their rights? 

Could you say something about what has—you know, from opinion polling or other sources, what workers know about their rights, 

and what we know about employers’ statements or misstatements 

about workers’ rights? 

Ms. ESTLUND. Well, there is a lot of research on workers’ misunderstanding and lack of understanding of their rights. I, myself, 

with my entering employment law students have often conducted 

a little poll to see what they know about the law. And the one 

thing they are most wrong about, of all the employment issues that 

might arise, is rights under the NLRA. 

And, in fact, there is a lot of evidence that employers, especially 

small employers, don’t know about rights under the NLRA, especially with respect to nonunion workers. 

So every once in a while there is a—you know, an alarmist article from management lawyers saying, employers, be aware, your 

employees may have rights even if there is no union organizing on 

the scene. And it is clear that many employers don’t know what the 

law is under the National Labor Relations Act. 

Mr. HOLT. But that has been the law since 1938; has it not? 

Ms. ESTLUND. That has been the law since it was passed in 1935. 

Mr. HOLT. 1935, I beg your pardon. 

Ms. ESTLUND. I think it is kind of an embarrassment that the 

only significant Federal employment statute that we have that 

doesn’t include—it doesn’t have to be presented to employees so 

that they recognize their rights is the National Labor Relations 

Act. And as you point out, given the unusually short statute of limitations period that workers have to file complaints under the 

NLRA, that is particularly concerning. 
59 

Mr. HOLT. Now the, OSHA, Fair Labor Standards Act and others 

require postings. Is there anything peculiar to the NLRA that 

would forbid postings, or is there anything about the structure of 

the law that would make postings unsuitable? 

Ms. ESTLUND. Not at all. In some of the statutes, the notice posting is explicit, but under the Fair Labor Standards Act, for example, which is also one of the early New Deal statutes, it was put 

into effect by regulation first, I believe, in 1949. 

So this has become standard practically because it is so obviously 

important in order to enforce rights under these statutes that 

workers be made aware of their rights. 

Mr. HOLT. Thank you. Thank you, Mr. Chairman. 

Chairman ROE. Thank you. 

Dr. DesJarlais. 

Mr. DESJARLAIS. Thank you, Chairman Roe, and thank you, 

panel, for your thoughtful testimony today. 

Mr. Miscimarra, I would like to start with you mainly because 

I empathize with a difficult last name. 

Mr. MISCIMARRA. Yes. 

Mr. DESJARLAIS. The Board has issued a number of significant 

decisions governing employer issues ranging from employer speech 

to NLRB jurisdiction. Looking forward, what can we expect from 

the Board in the next 10 months? 

Mr. MISCIMARRA. Well, you know, I brought my crystal ball with 

me today, and that is a very difficult question to answer. I think 

the one point that Professor Estlund made is that the number of 

the things that we have discussed today involve rulemaking and 

pending decisions where there has not yet been a resolution. 

But, you know, I think the most reliable indication of what the 

current Board may do prospectively is to look backwards. And 

there are a couple of unique things that relate to the context which 

surrounds many of these things right now. You know, first of all, 

there has been—as most people know, there is a significant backlog 

of cases that confronted the Board because there was a 2-year period where the Board was down to two members. And when with 

the two members were Chairman—excuse me, Peter Schaumber 

and Chairman Liebman, they didn’t resolve controversial cases, so 

those really were backed up to the Board. 

And then the other thing that I think is one of the reasons, from 

a contextual perspective, that there is some concern right now is 

looking backwards, there are dozens, three dozen or so, decisions 

that were issued during the Bush administration where all of the 

Democratic Board members dissented, all of them, and many of 

those are very important decisions. And if the current members 

who are in the majority—the Democrats are in the majority—decide those issues the same way in new cases, then we could be 

looking at very significant changes in the direction and focus of the 

act that would be different from what at least I have experienced 

in the 28 years I have been practicing. 

Mr. DESJARLAIS. Thank you. 

Mr. ROSENFELD—— Mr. ROSENFELD. Yes, sir. 

Mr. DESJARLAIS. The acting general counsel directed regents to 

consider using uncommon remedies with greater frequency, includ-
60 

ing notice readings, giving union names and addresses of employees, and access to company bulletin boards. 

When you held this position, did you have a policy with regard 

to uncommon remedies; and, in follow-up, are these remedies effective, and when should they be used? 

Mr. ROSENFELD. Well, our policy with these remedies basically 

was that these remedies are extraordinary remedies and only to be 

used in cases where extraordinary remedies were called for. The 

difficulty with the new approach is what heretofore have been extraordinary remedies will become routine, and it will, at least according to what has been suggested in the memorandum—it would 

require an employer, for example, to open up his workplace to an 

outside third-party union organizer and allow that union organizer 

perhaps to give speeches on the employer’s premises and on and 

on. So these remedies are extraordinary. 

And though we have used these remedies, some of these remedies, in the past, we have only done it in cases—I hate to mention 

a recidivist company, but J.P. Stevens, for example, in the 1980s, 

okay, was considered to be a recidivist employer, well before my 

time. But these types of remedies were used with that type of situation. 

Ms. ESTLUND. Could I just point out that the current memo does 

suggest that those sorts of remedies that Mr. Rosenfeld just mentioned would be for pretty extraordinary cases, and the Board has 

to pass these rulings through the court. The courts will decide 

whether it is an appropriate case. 

Mr. DESJARLAIS. Thank you. 

Mr. Chairman, I yield back my time. 

Chairman ROE. Thank you. 

Mr. Hinojosa. 

Mr. HINOJOSA. Thank you, Chairman Roe, and thank you, Ranking Member Andrews. 

In the current economic recession, I believe that it is vitally important that our Nation protect the rights of American workers. It 

is my opinion that to achieve this goal, the NLRB must be allowed 

to do its job effectively. 

I would like to ask two or three questions of Professor Estlund. 

The NLRB proposed a regulation to require posting of notices of 

employees’ rights under its rulemaking authority in section 6 of the 

NLRA, and we have been discussing that, but I want some clarification. Is this an overreach by the NLRB? 

Ms. ESTLUND. In my opinion, it is very long overdue. I think, 

again, it could hardly be surprising to propose that for workers’ 

rights under the act that Congress has put in place to be enforced, 

workers need to know about their rights under the law, and we 

really have very good reason to believe that workers are quite ignorant of their rights under the National Labor Relations Act. 

Mr. KING. If I may, Congressman, I would agree. I think reasonable people can differ as to what the notice says. The dispute is 

what the notice says, how it is articulated, how broad it is, whether 

employees have the right, as my panelists said, to decide whether 

they wish to join or not to join, and whether they wish to vote in 

or vote out, whether they wish to decertify, if you will, and whether 
61 

they wish to pay dues or not to pay dues. In right-to-work States 

the notice is lacking considerably. 

So it is the content, by and large, where I think we are having 

our differences. 

Mr. HINOJOSA. Thank you, Dr. King. 

Professor Estlund, from your bio, I can see that you have a very 

impressive background in labor law. In your expert opinion, are the 

current policies for the decisions reached by the NLRB well within 

the bounds of our Federal law? 

Ms. ESTLUND. Yes, I think they clearly are, and I actually 

haven’t heard anything today from any of the witnesses that suggests that they have really gone beyond their statutory authority. 

Take, for example, the stationary banner case that has gotten a 

lot of attention. At least five Federal courts have refused to issue 

injunctions against stationary bannering, somewhat similar to this, 

stationary displays, on free speech grounds or on statutory grounds 

that are informed by unions’ free speech rights. 

Nonpicketing publicity, the Supreme Court has said in a couple 

of decisions, is within the First Amendment. And so it seems to me 

responsible and appropriate for the Board to respond to that, again, 

without overruling any of its prior decisions, by recognizing that 

these stationary displays, without any patrolling, without any effect of causing a work stoppage or any such thing, are within the 

free speech rights and within the room that the statute affords for 

this kind of publicity. 

Mr. ANDREWS. Would the gentleman yield, Mr. Hinojosa? 

Mr. HINOJOSA. Yes, I will yield. 

Mr. ANDREWS. If I could just follow up on one of your questions 

of Mr. King. If I understand your answer about the rulemaking 

that if the content of the poster were satisfactory, you have no objection to the actual rulemaking itself? 

Mr. KING. Rulemaking has a place. 

Mr. ANDREWS. You think it has a place here? 

Mr. KING. Yes. 

Mr. ANDREWS. Thank you. 

I would yield back to Mr. Hinojosa. 

Mr. HINOJOSA. Thank you. 

The Board has solicited amicus briefs in five pending cases before 

it from potential interested parties. Do you think, Professor 

Estlund, that it is better for the Board to have increased openness 

and transparency and invite multiple perspectives before deciding 

important cases? 

Ms. ESTLUND. I think that would be—that would obviously be a 

move forward. I think the past Board, for example, exercised its 

authority under the statute. It overruled a very large number of 

precedents, including some precedents that had existed for decades. 

In some of those cases, they didn’t take the opportunity to solicit 

a full range of views. 

So I think this Board, having solicited views in a handful of 

cases—and we don’t know what direction they are going to go on 

those cases—that is only a good thing. 

Mr. KING. If I may, Congressman, per the ranking member’s 

questions, rulemaking, as opposed to just filing amicus briefs, is 

certainly preferable. More rights, more protections proceeding in 
62 

that manner. The filing of the amicus brief, frankly, has been given 

a lot of attention by the Board. While it may be important, it is 

not a good substitute for the protections and procedures of the 

merit—— 

Mr. HINOJOSA. It wasn’t meant for it to be a substitute. It was 

prior to actually having hearings and so forth so that they could 

get a better understanding of their case. 

It looks like I have run out of time. I yield back. 

Chairman ROE. I thank the gentleman. 

Mrs. Noem. 

Mrs. NOEM. Thank you, Mr. Chairman. 

I am from the State of South Dakota, which obviously is a wonderful State, but very cold this time of year. But we have our rightto-work State, and we are also one of the four States that recently 

passed the constitutional amendment that would protect a worker’s 

right to a secret-ballot election and a union election. So these conversations have been going on in our State over the last year or 

2 and have been very important to us, and we have a community 

and a population that is very well aware and concerned with these 

issues. 

So I appreciate the discussion that all the witnesses have 

brought to the table today. Actually when it did pass the legislature. I served there in that body as well. 

So I know we have discussed the idea of preemption, but my 

question is specifically for Mr. Rosenfeld. You know, in your previous role, I think you have some insight that would be very good 

for our subcommittee, and I would like to ask you your opinion on 

does the NLRA preempt State anti-card-check legislation, constitutional amendments, and what would have to be done to protect an 

employee’s right to an election free from coercion, from intimidation 

and from irregularities? 

Could you tell me—give me your personal opinion on that? What 

would have to be done to protect employees in those situations and 

those elections, and what specific insight do you have considering 

your previous role? 

Mr. ROSENFELD. Well, you know, we have discussed here briefly 

the benefits of the Secret Ballot Protection Act, okay, passed by 

Congress, Federal Congress. 

But employees are protected. They are protected not necessarily 

in terms of what process is used, but they are protected by the act 

itself and by the National Labor Relations Board, and that is the 

purpose of the Board is to administer the act. It is not necessarily 

to set labor policy. You all set labor policy. 

Therefore, if an employee—if a petition is filed for an election, for 

example, the Board has been very vigilant in making sure that laboratory conditions are adhered to and during the critical period certain conduct which is impermissible is remedied. 

The problem I have with your question, quite frankly, is I don’t 

feel competent to opine specifically on the merits of whether or not 

what South Dakota has done, okay, violates the Constitution. 

But what I said before is that I am pleased to see that the Board, 

if it believes that it is preempted, that conduct is preempted, I am 

pleased to see that the Board has gone forward this quickly to raise 

those issues. And then what I said before was I hope they do the 
63 

same thing in other types of issues, because over the last 10 or 12 

or 15 years, there has been an attempt by organized labor to Balkanize the Board, to get back to prior to 1935, because it is easier 

to get States and municipalities and localities to pass certain sorts 

of neutrality provisions, for example, to muffle an employer’s voice. 

When I was general counsel, we tried to be very vigorous in opposing those sorts of things. I mentioned before that in one of the 

hallmark cases, which was decided as Chamber of Commerce v. 

Brown, for the Board to authorize me to go forward, there was still 

a dissent, and one of the dissents was by current Chairman 

Liebman. 

And so I hope that if that type of case were to come up again, 

and the general counsel were wise enough to seek authorization, 

that Chairman Liebman would vote to authorize going forward, not 

necessarily in your particular case, but in other types of cases. 

Ms. ESTLUND. Could I just add on, 15 seconds, there are hard 

cases under preemption, and there are easy cases under preemption. The Brown case was a hard case because obviously States 

have some power to control the use of their own funds and make 

sure they don’t get misused. And so that was a hard case. That is 

why it went to the Supreme Court, and the court below had 

reached a different decision. 

In this case Mr. Rosenfeld has declined to opine, but I feel comfortable opining. This is a pretty easy case. Congress has the power 

to change the law. But under the law as it exists, these State enactments are preempted. 

Mr. ROSENFELD. If I would argue just quickly that there are hard 

cases and easy cases, but when you get a 7-2 Supreme Court decision saying something is preempted, that is darn close to being a 

slam dunk. 

Mr. KING. If I may, the California case was a State statute. We 

are talking about a constitutional amendment. Put aside where we 

may be in the law. As a matter of policy, does it make sense for 

a regulatory agency, whether it be the NLRB or any other agency, 

to tell a State where an overwhelming number of their voters have 

passed a proposition, have passed a constitutional amendment, 

that it can’t, in fact, go into effect? 

I am glad to see that the acting general counsel has withdrawn 

his initial letter. Perhaps there will be some thoughtful dialogue. 

But this does pose policy issues that need to be thought out. 

Chairman ROE. Thank you. 

Mr. Tierney. 

Mr. TIERNEY. Thank you, Mr. Chairman. 

Mr. Chairman, I can’t help but think that Mr. King was mentioning he thought that the Board was taking a lot of its time up 

with things it probably shouldn’t be considering. And I am looking 

at what we are doing here today, how many unemployed Americans are sitting home watching this hearing when we are sitting 

here doing things that really don’t make a lot of sense. 

This is an extraordinary gripe session, I guess, for the employers’ 

labor bar. They are complaining about First Amendment rights and 

have clearly decided it is a free speech issue, but we are going to 

complain about it today anyway. The apparently unbelievable bur-
64 

den of actually e-mailing a notice out, that must be working people 

up to a real sweat. 

The decisions of how work—that workers can wear a T-shirt with 

an insignia on it, I am glad we are spending a lot of time on that 

one. And the fact that people have got amicus briefs to help them 

inform a decision, all these pressing matters, you know, certainly 

aren’t helping anybody in this country get a job, or get back to 

work, or even get a wage that is decent and sustain their families. 

But one issue that we talked about, I would like to talk a little 

bit, is one of the witnesses questioned whether it is uncommon or 

bad policy to overturn precedents with recess appointments, well, 

when you have fewer than five Senate-confirmed Board members. 

The disturbing part about that question, because we have a totally 

dysfunctional Senate going on where certain obstructionists could, 

I suppose, by not ever confirming or letting them—— 

Mr. KLINE. I ask unanimous consent that we agree to that. 

Mr. TIERNEY. No objection. 

I mean, they could just do as they were doing and obstruct, and 

you would never get five members on the Board, and therefore you 

would basically freeze out the Board’s action on that. 

So I want to just question the professor here a second. Isn’t it 

a case that Board members who were seated through Presidential 

recess appointment have the same authority as ones who were confirmed by the Senate? 

Ms. ESTLUND. They do. 

Mr. TIERNEY. All right. I mean, President Eisenhower appointed 

William Brennan to the bench, Earl Warren to the bench, Potter 

Stewart to the bench by recess appointments. Their decisions were 

as effective as any judge that was on the Supreme Court that was 

appointed and approved by the Senate; is that right? 

Ms. ESTLUND. Yes. 

Mr. TIERNEY. All right. So, it doesn’t—I don’t understand quite 

why we are spending a lot of time worrying about recess appointments. It is still the reverse of past precedent. They are still requiring three votes, right? 

Ms. ESTLUND. That is right. 

Mr. TIERNEY. On that. So do you see any notion of this being a 

dangerous thing that is going on here? 

Ms. ESTLUND. I don’t. I think the law is pretty clear. Section 3(b) 

of the act says a vacancy in the Board shall not impair the right 

of the remaining members to exercise all the powers of the Board. 

The practice has been not to overrule precedent when there are 

not three votes, at least three votes, to do so, and that—and nothing the Board has done has departed from that traditional practice. 

So the Board has many times voted to reverse prior decisions in 

the rare cases when it has had only three members, as long as all 

three of them went along with that. 

Mr. TIERNEY. Thank you for clearing that up. I yield back. 

Chairman ROE. I thank the gentleman. 

Mr. Rokita. 

Mr. ROKITA. Thank you, Mr. Chairman. I want to thank all the 

witnesses as well. 

Just to follow up to the last line of questioning, I would make 

a comment for the record that this is all about jobs. When you are 
65 

talking about businesses that are trying to grow them and manage 

their internal affairs—we are talking about unions, for that matter, 

trying to do the same thing—not having certainty about these 

kinds of things is very detrimental, especially when you are talking 

about an activist Board like, in my opinion, we are talking about. 

A couple of questions. The Board has issued a number of significant decisions. This one is from Mr. King. It has requested briefs 

on a wide array of controversial issues and proposed substantive 

rulemaking that will affect almost all private employers. At the 

same time we have an acting general counsel-issued memoranda 

addressing remedies during union organizing, the scope of Board 

deference to a contract arbitration award, and the use of default 

language in informal compliance settlement agreements. How has 

this active agenda affected your dealings with regional NLRB offices and employees? Is there a general sense that regional employees are now acting more aggressively or not, or have they changed 

their behavior? 

Mr. KING. Congressman, there is no question, and this is based 

on personal practice, experience throughout the country, that each 

and every regional office I have dealt with has felt great pressure 

from Washington to be more aggressive. That requires expenditure 

of more agency resources, which could be better utilized elsewhere; 

and, second, it requires the employer, frankly, to retain counsel if 

it can afford counsel and causes the employer to spend more resources. 

With respect to jobs, how much regulation is too much? What we 

are talking about here is a full-out approach by the Office of General Counsel and the Board to change the law in a number of 

areas. I would differ with my colleague in that we have already 

had reversals with precedent, and what a lot of employers tell me 

is, Mr. King, I can’t understand why the law keeps going back and 

forth and back and forth. How are we supposed to follow some national labor policy? How are we supposed to comply with the law? 

And we have this oscillation back and forth. 

I think we would agree that it has been too much. And it does 

get to the point of why don’t we get full five confirmed Board members as a matter of principle? Put aside whether we have had three 

in the past or four in the past voting, and go about it in a more 

thoughtful way, in a more uniform way. 

Mr. ROKITA. Thank you, Mr. King. 

Mr. Miscimarra, in your practice, and considering the last line of 

questioning, what is the potential cost to all these different changes 

to employers? What have your clients seen? Any particular data 

that you can provide? 

Mr. MISCIMARRA. Well, I would echo the sentiments that were 

just expressed by Mr. King. You know, we are talking here about, 

in the case of general counsel initiatives, the general counsel plays 

a prosecutorial role and determines whether employers, where 

there hasn’t even been an adjudged violation, are going to be in 3 

to 5 years of litigation, frequently because the Board prosecutes 

complaints. 

An employer ends up being the only party in litigation before the 

Board that is responsible for attorneys’ fees, and the biggest problem that I have seen and the companies that I work with, every 
66 

day, end up talking about how can we make decisions because of 

the process that is associated with the Board, and much of it is unavoidable. 

Mr. ROKITA. The uncertainty. 

Mr. MISCIMARRA. Yes. It takes 3 to 5 years in order for Board 

cases to get to their conclusion, and people are making business decisions right now and hiring decisions right now that are heavily 

influenced by uncertainty about many of the issues we have talked 

about today. 

Mr. ROKITA. Thank you very much. 

This is a one-word answer for all four of you. I will set the question up by saying I am holding up a proposed neutrality agreement 

that was offered one of the employers in my district after he was 

called and visited by the regional NLRB office. A neutrality agreement, for the Record, of course, everyone here probably knows, contains language that not only makes the employer stay neutral as 

to any statements they made, but also got rid of the secret ballot. 

The employer claims that there was a good cop-bad cop situation 

going on between the union and the NLRB. Is he reasonable in 

that accusation? 

Mr. MISCIMARRA. I haven’t experienced anything like that in my 

dealings with the Board. 

Mr. ROKITA. Thank you. 

Mr. Rosenfeld. 

Mr. ROSENFELD. Possibly. I mean, I would have to see, you know, 

the facts to be able to make that determination. It is a possibility. 

You are dealing with, you know, 2,000 employees of the NLRB, and 

you are dealing with whomever in the union, and there could be— 

I can’t say, categorically. 

Mr. ROKITA. Is that a possibly? Thank you very much. 

Ms. Estlund. 

Ms. ESTLUND. I would have to know more about the facts, for example, whether this was a situation where the employer had a long 

record of violations. Without knowing—— 

Mr. ROKITA. No, he has got no violations. He has won every one 

of his cases. 

Ms. ESTLUND. It sounds very unusual. 

Mr. ROKITA. Mr. King. 

Mr. KING. Assuming it did occur, I would hope and think the acting general counsel would stop it immediately. 

Mr. ROKITA. Thank you. 

Mr. ROSENFELD. Yes, if I may comment on that, that is exactly 

right. If there is a problem of that nature, somebody should get on 

the phone immediately with the General Counsel’s Office. 

Mr. ROKITA. I will recommend that. Thank you. 

Chairman ROE. Thank you. 

Mr. Scott. 

Mr. SCOTT. Thank you, and I thank our witnesses for being with 

us. 

Mr. King you have suggested several times the fact that these 

four States have passed constitutional amendments makes some 

difference in whether or not the laws ought to be preempted. Is it 

true that if it is a constitutional amendment, it is more protected 

from preemption than if it is a statute, or Executive Order, or regu-
67 

latory rulemaking or any other way you can make State law, or are 

all State laws preempted by Federal law, however they come 

about? 

Mr. KING. Mr. Scott, in any of those scenarios, preemption is a 

factor. 

Mr. SCOTT. Whether it is a constitutional amendment or not. 

Mr. KING. A constitutional amendment would have scrutiny just 

like a State statute, perhaps a different type of scrutiny. 

Mr. SCOTT. And if it is clearly inconsistent with Federal law, 

then Federal law would preempt even if it is a constitutional 

amendment; is that right? 

Mr. KING. The Supreme Court has spoken to that issue, yes. 

Mr. SCOTT. And what did the Supreme Court say? 

Mr. KING. The Supreme Court, at least in the Brown case, said 

that we have a uniform set of Federal labor laws, and that this 

body and the other body, when it has passed legislation in that 

area, preempts as a general rule State and local initiatives. 

Mr. SCOTT. And if the NLRA allows voluntary recognition, and 

the State Constitution prohibits voluntary recognition, would not 

the State—would not the Federal law preempt the State Constitution? 

Mr. KING. It may. You know, Mr. Scott, what is really troubling 

me here is the State of Oregon, for example, right now, has enacted 

a statute that won’t permit, apparently, employers to have so-called 

required meetings with their employees. I haven’t heard the National Labor Relations Board of the Office of General Counsel say 

one word about that. 

Mr. SCOTT. Well, my question was just because it is a State’s constitutional amendment doesn’t make any difference. 

Mr. KING. I understand. 

Mr. SCOTT. I think you have acknowledged that. We have heard 

in another testimony that seemed to imply that an employer could 

pick any union that it wanted without regard to the workers’ desires. 

Ms. Estlund, when with the employer voluntarily recognizes a 

union, do they pick this union out of the blue, or how does the 

union come to the employers’ attention? 

Ms. ESTLUND. No, it is very clear that employers are only allowed to recognize and collectively bargain with the union that represents a majority of the employees. Now, in the recent Dana II 

case, a decision that was welcomed by many employers, the Board 

said the union and the employer can have some discussions to put 

out a framework so that the employees, when they are making that 

choice whether to select a union, will know a little bit about what 

they might be getting into. But that was not recognition, and it 

was not collective bargaining. That requires majority support from 

the employees. 

Mr. SCOTT. So when the employer recognizes a union, it is a 

union that has demonstrated majority support within the bargaining unit? 

Ms. ESTLUND. That is right. 

Mr. SCOTT. It is my understanding that about over 2,200 employees were reinstated because they were victims of unfair labor practices. Are you familiar with many of those cases, Ms. Estlund? 
68 

Ms. ESTLUND. Yes. And I was struck by the rhetoric about the 

current Board and general counsel’s aggressive approach to the 

law. Yes, there has been a more assertive approach to enforces employees’ rights, but aggressive is exactly the term that has been 

used repeatedly by scholars to describe the very typical employer 

approach when they learn that one or more of their employees may 

be interested in forming a union. 

This is a key right. The central right in the act is the right of 

employees to decide whether or not to join a union. That right requires, yes, aggressive enforcement, given the aggressive response 

that employees very often meet when they attempt to organize a 

union. 

Mr. SCOTT. And can you describe some of these cases so we know 

what we are talking about? 

Ms. ESTLUND. Well, without describing any particular cases, discriminatory discharges of union activists have become quite common. Threats of plant closing, threats of job loss, these kinds of 

threats that the Board and the Supreme Court have repeatedly 

condemned, have become almost routine. In fact, there is a whole 

industry of management consultants that advise employers how to 

hold captive audience meetings, repeated one-on-one meetings between employees and their supervisors to impress the views, the 

employers’ views, upon the employees. 

The comprehensiveness and aggressiveness of these campaigns 

has become pretty common knowledge, I think, among—I am not 

saying all employers do this, and not all employers violate the law, 

but it has become all too common, and it does require a very assertive remedial response, given the rights under the act. 

Mr. KING. Mr. Scott, I only would add that I know of no employer 

that actively goes out and violates the law. I don’t know of anyone 

that we represent that goes out and discharges union activists. To 

the contrary, they are protected in their activities under the statute, as they should be. 

Chairman ROE. I thank the gentleman. 

Mr. Barletta. 

Mr. BARLETTA. Thank you, Mr. Chairman, and I would like to 

thank the Board, the panel for coming in and taking your time 

today. 

To follow up on an earlier question dealing with uncommon remedies, my question is to Mr. Rosenfeld. If a union decides to use 

one of these uncommon remedies proposed by Mr. Solomon, mainly 

giving unions the names and addresses of employees, what protections do the employees have, and shouldn’t this be a concern for 

the privacy of those employees? 

Mr. ROSENFELD. Under current Board policy there is something 

called an excelsior list, which has to be provided by the employer, 

incorporating names and addresses of the unit employees, I think, 

7 days before an election. Is that correct? 

The reason why this list is provided only 7 days before an election is basically to protect the privacy and sanctity of the employees. Organized labor, unions, can go to an employee’s home—of 

course, an employer can’t do that. They can go to wherever an employee may be having a drink after work. 
69 

The only protection would be for an employee, okay, to claim that 

he was coerced by union activity. The problem with that, of course, 

is that these are the fellows you work next to, day in and day out. 

It is a very difficult situation to be put in. 

Ms. ESTLUND. It is worth mentioning that this name—that the 

names and addresses would only be made available. This is one of 

the remedies that would be made available in cases where employers have already violated the law and shown that they are not respecting employee rights. 

Mr. BARLETTA. Mr. King, drawing from your professional experience and past work with the NLRB, how truly assertive is this current Board specifically in terms of their interpretation of precedent 

and their willingness to overstep traditional boundaries in asserting their authority? 

Mr. KING. I think quite activist, Mr. Congressman, and that is 

why we are here today. 

I know that you can put anything on a spin basis, but they are 

just deciding cases, they are not going outside of the parameters 

of past Boards, that is simply not correct. What this Board has 

done recently is ask for amicus briefs more times than have been 

asked by a Democrat or a Republican Board in my history, in my 

memory. 

Second of all, this is only the third time in the agency’s history 

that it has engaged in rulemaking. That is certainly not the norm. 

Further, to the contrary of what has been said today, this Board 

has already reversed precedent. Further, it has teed up, if you will, 

another very important question, including in the specialty health 

care case, in question number 7 and question number 8, how we 

go about determining who is in a voting unit and who ultimately 

might be in a bargaining unit. That is nowhere on that case. But 

just the ramifications of that, to perhaps turn upside down our 

whole Nation’s labor laws on selection of the bargaining or voting 

unit approach, is very troubling. 

So for anyone to suggest that this Board is not an activist Board 

and its general counsel is clearly wrong. Now, we can disagree 

about where this Board comes out, where this general counsel 

comes out, I would concur. Decisions are still yet to be made. But 

you have to look at this objectively and walk out of this room today 

and say, yes, this Board is extremely active, and this committee, 

I would submit, needs to be concerned. 

Mr. BARLETTA. Mr. Miscimarra, drawing on my question to Mr. 

King, on December 21, 2010, in a rare exercise of formal NLRB 

rulemaking, the Board published a Notice of Proposed Rulemaking 

requiring almost all covered employers to post a notice of employees’ rights in the workplace. 

My question is does the Board have the authority to do this? 

Mr. MISCIMARRA. I think the Board does not, and this is an issue, 

Congressman, that I have already addressed to some degree. But, 

you know, the Railway Labor Act, I think, was passed in 1926. It 

has a notice-posting requirement. The National Labor Relations 

Act was passed in 1935. It does not. 

Congress makes the decisions when you insert in laws whether 

they have notice-posting requirements or other requirements, and 

I haven’t heard anything that I have found to be convincing to sug-
70 

gest that the Board should make that determination rather than 

Congress. 

Mr. BARLETTA. Thank you. 

Chairman ROE. Mrs. McCarthy. 

Mrs. MCCARTHY. Thank you, thank you, Mr. Chairman. 

Mr. Rosenfeld, I know when one of my colleagues asked you the 

question on whether you believe that anti-card-check State law is 

preempting, I really don’t think you answered the question correctly. 

Now, I know Mr. King tried to answer that question, too, but 

looking at the statute of the State of South Dakota, which one of 

my other colleagues had talked about, basically what they are saying, that in their legislation was the rights of individuals—this is 

put up—the rights of individuals to vote by secret ballot is fundamental. If any State or Federal law requires or permits an election 

for public office, or any initiative or referendum, or for any designation, authorization of employee representation, the right of any individual to vote by secret ballot shall be guaranteed. 

So with that being said, do you think that you would want to reanswer the question on anti-check State laws preempting the Federal? 

Mr. ROSENFELD. No, I wouldn’t, but I am going to, okay. 

No, what I try to say is that on its face there is no question in 

my mind that the language read that way should be preempted. 

However, again, there has been a letter sent by the four attorneys general referring to how that language is going to be interpreted, such that it would not be preempted. At least this is an argument being made by the acting general counsel. And so I would 

not opine on whether that is correct or not correct because that is 

beyond my purview. 

But I wasn’t trying to avoid the language that you read. I would 

say definitely. I mean, that is clearly—but it depends on how it is 

enforced and how it is administered. 

Mr. KING. I would only add, Congresswoman, I think this shows 

how concerned certain States are, and they are really almost begging, I think, the Congress to say, let us get into this discussion, 

and if it is preempted, let us have some clear guidance on it. This 

is extraordinary to have these many States pass these type of constitutional referendums. 

Mrs. MCCARTHY. Well, I am going to disagree with you just on 

one level. Basically I think an awful lot of States are antiunion, 

and, in my opinion, when they are antiunion, they are actually 

antiworker. 

When you see how many—unfortunately, workers, whether it is 

unionized or not unionized, we still have the high rate of people 

that die on the job. We still have a high rate of people that are seriously injured. And I think that is why, when you start looking at 

why so many of us try to defend safety, work safety, anything—listen, there are a lot of good employers out there, and they take their 

job very seriously on protecting their workers. We also know there 

are an awful lot out there that do not treat workers as human 

beings. 

I come from a family that were all union, hard-working people; 

gave us, myself, a chance to move up into middle-income families. 
71 

So when I hear people talk about unions like they are not human 

beings or they are not good people, I get very upset, because you 

are talking about my family. And so with that being said, that is 

why I believe that the NLRB, the Board, is doing the best they can 

to protect workers. 

Now, I know, I have watched you answer an awful lot of the 

questions, Ms. Estlund. Would you like to also answer to what we 

have been discussing? 

Ms. ESTLUND. Well, I do think that we need to recognize that we 

have—we do have a serious unemployment problem. We have a serious problem in the economy. Many other countries, Canada and 

Europe, have weathered the recession better, and they do happen 

to have significantly higher levels of unionization. 

I am not suggesting that that is the entire explanation; there are 

many differences between how different countries run their economies and their labor relations. But clearly one problem with declining union density that many economists have pointed to is that it 

has eroded purchasing power in the middle class and contributed 

to increasing economic inequality. 

So I would agree with you. 

Mrs. MCCARTHY. Thank you. 

With that, I yield back. 

Chairman ROE. Thank you. 

Mr. Ross. 

Mr. ROSS. Thank you, Mr. Chairman. 

I do want to point out there was an article and editorial in the 

Wall Street Journal 2 weeks ago that indicated that the 22 rightto-work States have much better economies than the remaining 

States. So I think there is some causal relationship between right 

to work and strong employment. 

Ms. Estlund, I am intrigued by the preemption argument, and I 

have—I will admit right up front that I have a shallow understanding of the National Labor Relations Act. 

But I also have a question, because it seems to me that this is 

a broad brush that we paint. And, for example, in the State of Florida, we have a drug-free workplace that requires certain requirements of the employee and obligations, of course, of the employer. 

If, in fact, there was a union in the State of Florida that collective bargained so that their employees, their union employees, 

would not have to take the—or apply to the drug-free workplace, 

would that be an adequate preemption of the NLRB’s jurisdiction 

over the State of Florida so that you would have nonunion employees subject to the drug-free workplace and the union employees 

who have collective bargained not? 

Ms. ESTLUND. No, preemption is not that broad. There is a domain of State authority over many of these issues, and collective 

bargaining may be constrained by it—— 

Mr. ROSS. So you would agree, then, that there are certain 

States’ rights that would allow for the absence of a Federal preemption under the NLRB? 

Ms. ESTLUND. Certainly. States have power in the workplace 

arena generally. It is in the labor relations context particularly 

that preemption is so very broad. 
72 

Mr. ROSS. Speaking of the Employee Free Choice Act, Ms. 

Estlund, do you have an opinion whether any of the provisions of 

that act could be administered strictly through rulemaking authority absent congressional intervention? 

Ms. ESTLUND. I don’t think any of them could be enacted as written, not even close, no. 

Mr. ROSS. So that the secret ballot would only then be allowed 

through congressional legislation? 

Ms. ESTLUND. To ban the use of card check, in other words, to 

prohibit employers from recognizing a union on the basis of card 

check, that would definitely take congressional action because that 

is a right that the Supreme Court has recognized, that the Bush 

Board in 2007 recognized, the right of employees to seek voluntary 

recognition on the basis of cards. So that would require congressional action, yes. 

Mr. KING. Congressman, if I may, you touch upon a very important point. That is one of the concerns the employer community has 

about this Board, whether a number of provisions that were put 

forth in the Employee Free Choice Act might, in fact, result from 

this Board’s activist agenda. 

By the way, the Lakeland Regional Medical Center is a client, 

and you have a great community. 

Mr. ROSS. Yes, we do. Thank you. 

Ms. Estlund, about the publication of notice, I note that the notice is not inclusive; in other words, it is incomplete of all the 

rights, would you say? 

Ms. ESTLUND. Well, it is incomplete in the sense that there are 

75 years’ worth of decisions elaborating these rights, and it struck 

me as a very fair-minded summary in a way that could be understood by employees, and it takes pains to recognize in every case 

that employees have the right to do these things, they have the 

right not to. 

Mr. ROSS. Exactly. And I think in your opening comments you 

said that it is one of these things that should be uncontroverted 

and shouldn’t have any problem being implemented. But yet don’t 

you think that it should also include that the employees have the 

right not to form, join or assist in any labor organizations? 

Ms. ESTLUND. I believe it says that. They also have the right not 

to engage. I am sorry, I don’t have the actual text. 

Mr. ROSS. I think you might want to go back and take a look at 

that, and also whether they also have the right to pay only a portion of union dues attributable to collective bargaining, contract administration and grievance adjustments. 

Ms. ESTLUND. That is an interesting one because that right only 

becomes relevant once there is a union, and that notice is—some 

notice to that effect is already required. 

Mr. ROSS. And so when he talk about rights, because that is 

what the NLRB is existing for is to make sure employees have 

rights, but then on the same token you have also got obligations. 

So if an employer wanted to make sure that, enforcing the rights 

of the employees, they also made known the obligations of the employees by way of performance and production standards, would 

you have an opinion whether it would be an intimidating communication and, therefore, an unfair labor practice if they were to 
73 

post, the employer were to post, notice of what was required of the 

employees in terms of production and performance? 

Ms. ESTLUND. I think it is absolutely routine for employers to do 

that. They have the right to do that. They manage the workforce. 

They notify employees all the time in many forms, by orally, handbooks, rules. They have the power to do that already. 

This is one effort to notify employees that they have some rights 

that sometimes are exercisable against their employers as well, because that is what Congress—— 

Mr. ROSS. Thank you. I see my time is up. 

Chairman ROE. I thank the gentleman. 

I will finish this up by asking a few questions, and basically, 

since it is my first day to chair, I want to introduce myself to the 

committee and just tell you I grew up in a union household. My 

father was a member of United Rubber Workers Union. I have 

been out on many strikes. I have seen that occur in my hometown. 

I also spent 30-plus years as an employer and working in—certainly on the medical industry side. 

My good friend, the ranking member who just left, had mentioned in his opening remarks that the Board agreed 83 percent of 

the time and 67 percent of the time under Bush. Well, I would say 

it depends on what you are agreeing to. 

I think the Republicans and Democrats have agreed pretty well 

to name post offices and congratulate Confucius, but it would be 

depending on what we were discussing that particular day. So I 

think major issues like that you will find some disagreement on. 

I want to go where Mr. Ross was momentarily. You know, I don’t 

know about you, if you have ever been in a workplace recently. In 

my office, the bulletin board looks like a NASCAR driver’s suit 

with all of the stuff that you have to tell people about. I can barely 

read the statutes of Fair Labor Standards Act; Title VII, Civil 

Rights Act of 1964; Occupational Safety and Health Act; Family 

Medical Leave Act. But the NLRA does not require postings of 

those things, it does not require that. So this is an activist rulemaking, and I have gotten a lot of employer feedback about where 

is this going? 

And, Mr. King, I would like for you—I know you are out there 

every day in the field working. Have you seen the same thing I 

have? 

Mr. KING. Absolutely, Mr. Chairman. Where does it stop? And 

how much regulation does the employer, particularly a small business employer, have to put up with? How do you interpret what a 

class-action lawsuit standards might be these days? This activist 

OSHA group that we have now at the Department of Labor frequently has gone out on a limb in saying we are going to be very, 

very aggressive. Now they have pulled back perhaps a little bit recently. 

So the employer community is at risk every day of a lawsuit from 

a private practitioner or from a regulatory agency. I mean, how 

much does this economy have to bear of this regulation is really, 

I think, perhaps what we are talking about. 

Chairman ROE. I have seen numbers and so forth, and I would 

wonder, if I would just have an opinion from you all briefly, about 

why—because I absolutely agree with you that worker rights have 
74 

to be protected, but so do employer rights. Employers have rights 

also. And I wonder what your opinion is about why the public-sector unions are the only unions that are growing now. 

And what worried me was my father lost his job in 1974 making 

shoe heels in a factory to Mexico because of one more strike that 

occurred, and they could do business less expensively somewhere 

else. And that is why that company left, and my father, at 50 years 

old, post-World War II, didn’t have a job. 

So I would look at that, and I would just like to solicit your opinion about that, what you think the reasons for, our decreasing private-sector unions? 

Mr. MISCIMARRA. There are probably, Congressman—you can ask 

10 people, and you will get 1,000 different reasons. But the one 

thing that I will come back to, and I mentioned this in my opening 

remarks, is the act was passed at a time where we had a national 

economy. 

It is, at its essence, an adversarial system. So the thing that 

really makes collective bargaining work—and I have embraced collective bargaining in my practice. I have many clients that have 

mature bargaining relationships and constructive relationships 

with their unions. Bargaining ends up reducing to leverage. I think 

many employees recognize that this system is one that is not conducive to cooperativeness and efficiency, and confrontation and dissension ends up being unpleasant and harmful to everybody. In 

spite of everybody’s best efforts, the act’s structure really makes it 

very difficult to avoid confrontation. 

Ms. ESTLUND. This is actually a question, Mr. Chairman, that I 

have spent a lot of time thinking and reading and writing about, 

and I completely agree that there are many reasons why privatesector unionism has declined. Clearly, in my mind, one of them is 

that employers have become increasingly aggressive in opposing 

and resisting employees’ efforts to unionize. That is the one part 

of the picture that the National Labor Relations Board is obligated 

to address. 

But the question of the adversarial system that we have set up, 

I also completely agree that it is important to think about ways to 

allow for more cooperative labor-management relations, and some 

provisions of the existing law may be problematic in that regard. 

Strike levels in our country are at literally the lowest level in a 

century. And, secondary, picketing and activities of that nature is 

also at historically low levels. 

Workers at this point need to be able to exercise the right to get 

together and sit down with their employer and discuss what is the 

best way to move forward. 

Mr. KING. Mr. Chairman, if I could highlight for just a minute, 

I couldn’t agree more, and hopefully this body and the other body 

will look at the TEAM Act that was, in fact, passed by the Congress a number of years ago that allows for cooperation in the 

workplace. The law in this area is outdated, and perhaps my colleague would join me here in urging this committee and other committees of the Congress to pass the TEAM Act. 

Chairman ROE. Thank you. 

Does the ranking member have any closing remarks? 
75 

Mr. KILDEE. I just have two points that I would like to make. 

You know, I listened with interest, as a history major, the preemption discussion. It takes me back to John Calhoun and nullification. 

And then it was he—Andrew Jackson finessed that one very well. 

But the Civil War, after he settled the question of nullification— 

so I think we have a basic constitutional question here. 

This is a type of nullification that Calhoun embraced so strongly. 

I think we should all agree to our history, and we are celebrating 

the 150th anniversary of the beginning of the Civil War right now. 

Also, you know, for employees who—employers who are government contractors, what is displayed there talks about the rights 

under the NLRA, and it has to choose not to do any of these activities, activities including joining or remaining a member of a union. 

And they are circulating now opinions from all employees to have 

that included in the display to say that under the NLRA, you have 

the right to choose not to do any of these activities, those previous 

ones, including joining or remaining a member of the union. So I 

think that should clarify that. 

But the preemption scares me. You know, you have the Governor 

of Texas talking about secession. You have Utah doing certain 

things, South Dakota doing certain things. We have a Federal Constitution, which makes us one Nation. You have States kind of almost capriciously defying that fact is a little scary, as the nullification under John Calhoun was scary back 180 years ago. 

Chairman ROE. Thank you. 

Just, in closing, I put on a uniform and left this country 37 years 

ago and spent 13 months in a foreign country in an infantry division. I did that willingly, and I am proud of the service that I did, 

as many, many veterans are. And we did that to give you the right 

for a secret ballot. My wife claimed she voted for me in the election. 

I don’t know that she did or didn’t. And that is not necessarily a 

bad thing. I think we have a right to do that. I think it is one of 

the most fundamental rights. The President was elected that way; 

every Member of Congress was elected that way. And I think it 

makes Ms. Estlund’s point that if you think someone is putting 

pressure on you from the employee standpoint or the employer 

standpoint, you have a right to go in a secret place to cast your ballot, and the majority wins. 

That is what is the most important thing I can think of. And I 

believe that you are correct, Mr. King, that we need to make sure 

that we put that in statute where, once again, the Constitution 

gives us that right, and every worker and every employee in this 

country should have that right. We should never take that right 

away. 

I can’t thank you all enough. It has been a great panel, good 

questions, and I look forward to carrying on this discussion. 

Any further comments? 

Without any further comments, the meeting is adjourned. 

[Additional submissions of Mr. Andrews follow:] 
76 
77 
78 
79 
80 
81 
82 
83 
84 
85 
86 
87 
88 
89 
90 
91 
92 
93 
94 
95 
96 
97 
98 
99 
100 
101 
102 
103 
104 
105 
106 
107 
108 
109 
110 
111 
112 
113 
114 
115 
116 
117 
118 
119 
120 
121 
122 
123 
124 
125 
126 
127 
128 
129 
130 
131 
132 

[Whereupon, at 12:01 p.m., the subcommittee was adjourned.] 

Æ