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OVERSIGHT OF THE NATIONAL LABOR RELATIONS

BOARD

HEARING

BEFORE THE

SUBCOMMITTEE ON HUMAN RESOURCES

OF THE

COMMITTEE ON GOVERNMENT 

REFORM AND OVERSIGHT 

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

JULY 24, 1997

Serial No. 105–77

Printed for the use of the Committee on Government Reform and Oversight

(

(II)

COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT 

DAN BURTON, Indiana, Chairman 

BENJAMIN A. GILMAN, New York 

J. DENNIS HASTERT, Illinois 

CONSTANCE A. MORELLA, Maryland 

CHRISTOPHER SHAYS, Connecticut 

STEVEN SCHIFF, New Mexico 

CHRISTOPHER COX, California 

ILEANA ROS-LEHTINEN, Florida 

JOHN M. MCHUGH, New York 

STEPHEN HORN, California 

JOHN L. MICA, Florida 

THOMAS M. DAVIS, Virginia 

DAVID M. MCINTOSH, Indiana 

MARK E. SOUDER, Indiana 

JOE SCARBOROUGH, Florida 

JOHN B. SHADEGG, Arizona 

STEVEN C. LATOURETTE, Ohio 

MARSHALL ‘‘MARK’’ SANFORD, South 

Carolina 

JOHN E. SUNUNU, New Hampshire 

PETE SESSIONS, Texas 

MICHAEL PAPPAS, New Jersey 

VINCE SNOWBARGER, Kansas 

BOB BARR, Georgia 

ROB PORTMAN, Ohio 

HENRY A. WAXMAN, California 

TOM LANTOS, California 

ROBERT E. WISE, JR., West Virginia 

MAJOR R. OWENS, New York 

EDOLPHUS TOWNS, New York 

PAUL E. KANJORSKI, Pennsylvania 

GARY A. CONDIT, California 

CAROLYN B. MALONEY, New York 

THOMAS M. BARRETT, Wisconsin 

ELEANOR HOLMES NORTON, Washington, 

DC 

CHAKA FATTAH, Pennsylvania 

ELIJAH E. CUMMINGS, Maryland 

DENNIS J. KUCINICH, Ohio 

ROD R. BLAGOJEVICH, Illinois 

DANNY K. DAVIS, Illinois 

JOHN F. TIERNEY, Massachusetts 

JIM TURNER, Texas 

THOMAS H. ALLEN, Maine 

HAROLD E. FORD, JR., Tennessee 

———

BERNARD SANDERS, Vermont 

(Independent) 

KEVIN BINGER, Staff Director 

DANIEL R. MOLL, Deputy Staff Director 

WILLIAM MOSCHELLA, Deputy Counsel and Parliamentarian 

JUDITH MCCOY, Chief Clerk 

PHIL SCHILIRO, Minority Staff Director 

SUBCOMMITTEE ON HUMAN RESOURCES

CHRISTOPHER SHAYS, Connecticut, Chairman 

VINCE SNOWBARGER, Kansas 

BENJAMIN A. GILMAN, New York 

DAVID M. MCINTOSH, Indiana 

MARK E. SOUDER, Indiana 

MICHAEL PAPPAS, New Jersey 

STEVEN SCHIFF, New Mexico 

EDOLPHUS TOWNS, New York 

DENNIS J. KUCINICH, Ohio 

THOMAS H. ALLEN, Maine 

TOM LANTOS, California 

BERNARD SANDERS, Vermont (Ind.) 

THOMAS M. BARRETT, Wisconsin 

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California 

LAWRENCE J. HALLORAN, Staff Director and Counsel 

DORIS F. JACOBS, Associate Counsel 

R. JARED CARPENTER, Clerk 

CHERRI BRANSON, Minority Counsel 

(III)

C O N T E N T S 

Page 

Hearing held on July 24, 1997 ............................................................................... 1

Statement of: 

Allen, Robert E., inspector general, National Labor Relations Board, accompanied by John Zielinski and Michael Griffith; and Carlotta Joyner, 

Director of Education and Employment Issues, U.S. General Accounting 

Office .............................................................................................................. 137

Gould, William B., IV, chairman, and Fred L. Feinstein, general counsel, 

National Labor Relations Board, accompanied by Alfred L. Wolff, chief 

counsel; Robert A. Giannasi, chief administrative law judge; and Harding Darden, budget officer .......................................................................... 14

Yager, Daniel V., vice president and general counsel, Labor Policy Association; Jeffrey H. Joseph, vice president for domestic policy, U.S. 

Chamber of Commerce; and Jonathan P. Hiatt, general counsel, AFL–

CIO ................................................................................................................. 171

Letters, statements, etc., submitted for the record by: 

Allen, Robert E., inspector general, National Labor Relations Board, prepared statement of ........................................................................................ 140

Associated Builders and Contractors, Inc., prepared statement of .............. 10

Feinstein, Fred L., general counsel, National Labor Relations Board, prepared statement of ........................................................................................ 102

Gould, William B., IV, chairman, National Labor Relations Board, prepared statement of ........................................................................................ 17

Hiatt, Jonathan P., general counsel, AFL–CIO, prepared statement of ...... 229

Joseph, Jeffrey H., vice president for domestic policy, U.S. Chamber 

of Commerce, prepared statement of ........................................................... 219

Joyner, Carlotta, Director of Education and Employment Issues, U.S. 

General Accounting Office, prepared statement of .................................... 150

Shays, Hon. Christopher, a Representative in Congress from the State 

of Connecticut, prepared statement of ........................................................ 3

Yager, Daniel V., vice president and general counsel, Labor Policy Association: 

Response to points raised in the hearing ................................................ 254

Prepared statement of ............................................................................... 175

(1)

OVERSIGHT OF THE NATIONAL LABOR 

RELATIONS BOARD 

THURSDAY, JULY 24, 1997 

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HUMAN RESOURCES, COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT, Washington, DC. 

The subcommittee met, pursuant to notice, at 11 a.m., in room 

2247, Rayburn House Office Building, Hon. Christopher Shays 

(chairman of the subcommittee) presiding. 

Present: Representatives Shays, Snowbarger, Pappas, Towns, 

Lantos, Barrett, Kucinich, Allen, and Sanders. 

Staff present: Lawrence J. Halloran, staff director and counsel; 

Doris F. Jacobs, associate counsel; R. Jared Carpenter, clerk; and 

Cherri Branson, minority counsel. 

Mr. SHAYS. I would like to call this hearing to order and welcome 

our distinguished witnesses, the members of this committee and 

our guests. 

This is our first hearing on the National Labor Relations Board, 

the NLRB. 

When my good friend and colleague, Congressman Tom Lantos, 

chaired the former Employment and Housing Subcommittee, we 

had an oversight hearing almost every year on the NLRB. We dutifully tried to monitor their performance, primarily as measured by 

the Board’s case backlog. Each year, the backlog was examined, explained and denounced. Each year, commitments were made to do 

better next year. 

It was repetitive, but necessary, oversight because we had no 

clear benchmarks or standards against which to measure the 

Board’s activities from year to year. As successive administrations 

appointed Board members and general counsels, and as economic 

and labor conditions changed, it became more difficult to make 

meaningful comparisons or discern trends in NLRB effectiveness 

and productivity. 

Implementation of the Government Performance and Results Act, 

what we refer to as the ‘‘Results Act,’’ promises to free us and the 

NLRB, from the oversight treadmill. By requiring a clear mission 

statement, a long-range strategic plan, outcome goals and performance measures, the Results Act will allow Board executives, Congress and the public to know how well cases are being decided, not 

just how many. 

The qualitative and quantitative measures required by the Results Act could be important, even essential, tools for the NLRB, 

which is often called upon by fiercely competing constituencies to 

2

justify its actions and defend its neutrality. In performing its important mission to enforce the laws governing the peaceful, orderly 

resolution of labor-management disputes, the NLRB should make 

measurable progress toward objective goals to reassure those on 

both sides of the bargaining table of the Board’s effectiveness and 

fairness. 

Policies of the current Board on the use of injunctive relief, or 

the use of mail ballots, might be better understood when expressed 

as components of a long-range plan, clear goals and measurable objectives, just as the Results Act scrutiny will require alteration of 

NLRB practices that do not meet legitimate objectives or produce 

measurable results. 

However, the NLRB’s first step toward Results Act compliance—

the development of a 5-year strategic plan—has, so far, fallen significantly short of the mark. While the Board calls the plan a 

‘‘work in progress,’’ that characterization may confuse random 

movement with forward motion. 

Performance measures in the first draft, while poorly defined, 

disappeared altogether from the version provided to the subcommittee on July 8. Two days ago some measurable performance 

standards reappeared in a third draft, in response to an analysis 

of the July 8 plan by the General Accounting Office, GAO, requested by this subcommittee. 

Based on these versions of the strategic plan, Results Act compliance appears to be a paper exercise, far removed from the fundamental operations of the NLRB. For example, an audit by the 

NLRB inspector general, IG, last year found long-standing performance measurement systems applicable to Results Act implementation, yet those systems are only vaguely incorporated into the plan. 

More troubling, the GAO found the computerized NLRB case 

tracking system under development, on which the Board will have 

spent more than $10 million through next year, could be incompatible with the Results Act requirements and need expensive retrofitting. Nor does the plan include provisions to get NLRB computers, new or old, across the year 2000 threshold. 

According to the Board’s latest strategic plan, its mission, ‘‘Is to 

encourage and promote stable and productive labor management 

relations and thereby to promote commerce and strengthen the Nation’s economy.’’ The subcommittee’s mission is oversight, to ensure 

the NLRB meets its statutory mission effectively and efficiently. 

The Results Act requires we pursue our missions together, through 

consultation or on development of the strategic plan. That consultation begins today. 

This subcommittee and this chairman welcome the testimony of 

our witnesses today. 

[The prepared statement of Hon. Christopher Shays follows:]

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Mr. SHAYS. Before calling on the ranking member, I want to say 

that there is no hidden agenda here. The purpose of this hearing 

is to learn how this department can operate better. It is a goal that 

I am sure is shared by the administration and by you, Mr. Gould, 

in particular. 

I want to apologize to the members who may have statements. 

I have a 15-minute meeting that I have to get to. Because of votes, 

I am going to recognize Mr. Towns. I will miss the statements 

made, but I am going to really hustle back, Mr. Gould, to make 

sure that I am here for your testimony. 

At this time, I would call on Mr. Towns, the ranking member. 

Mr. TOWNS. Thank you, Mr. Chairman. Let me also thank you 

for holding this hearing. It seems to me that today’s hearing is 

really about two things: the Government Performance and Results 

Act and the effective performance of the NLRB. 

First, let’s talk about the Government Performance and Results 

Act. As the committee which initiated this legislation, we should be 

concerned not only about compliance, but about the meaning the 

law has been given by those who are charged with its interpretation. 

It should be remembered that GPRA was never intended to be 

narrowly interpreted. We did not intend for GPRA to operate as a 

noose around the neck of agencies. Our intention in enacting GPRA 

was to create an ongoing dialog between Congress and the agencies, which would facilitate increased communications about agency 

performance and the use of appropriated funds. 

The belief was that open communication would foster increased 

discussion, consultation and positive interaction. However, that 

does not seem to be what we have gotten. It is my understanding 

that despite a September 30, 1997 deadline, most of the agencies 

and departments have not submitted their GPRA. 

One reason for this reluctance may be that of the 16 plans that 

GAO has reviewed, only 1 plan has been deemed to meet all the 

criteria. It would seem to me that this overwhelming amount of 

failing grades has more to do with agencies being unsure of the requirements than with the lack of agency resolve. 

Years ago I had a teacher who said that if the majority of the 

class fails, two things have happened. The teacher has failed to 

teach and the students have failed to complain. I think we may 

have a similar situation here. I say to the chairman, I hope that 

in addition to examining whether the requirements of GPRA have 

been met, we examine whether the spirit of discussion, incorporation and vision by GPRA have been met. 

Our second topic today appears to be the economy and efficiency 

of the NLRB. In 1990, the GAO found that the Board headquarters 

were terribly slow in hearing and deciding appeals. Some believe 

that this foot-dragging was politically motivated. Today, far from 

foot-dragging, some are accusing the NLRB of moving too fast, 

issuing injunctions and becoming involved in too many disputes. 

Those who make these allegations also charge political motivation. 

Again, let me just bring some facts to light. In an effort to eliminate the backlog of cases, Chairman Gould has appointed an advisory panel of prolabor and promanagement lawyers to recommend 

ways to improve the processing of cases and improve the agency’s 

6

service to the public, and I applaud him for that. Additionally, the 

chairman has instituted speed teams that reduce the time and paperwork involved in hearing a case. These procedures have enabled 

the Board to reduce its backlog. As the Committee on Government 

Reform and Oversight, we should also say thank you. 

Finally, there is some concern about whether the Board is a partisan body. During the Reagan administration and during the Bush 

years, many accused the Board of being promanagement and decidedly antiunion. Therefore, these concerns are not new. It seems to 

me that if the Board’s decisions were out of touch with the established law, the courts would serve as an effective check on the 

Board’s authority. It is my understanding that the courts have 

upheld the Board’s decisions in over 90 percent of all of the cases. 

Therefore, it seems to me that although these decisions may not be 

popular with some, they are in accord with the law. 

Again, let me say to the chairman, I want to thank you for holding today’s hearing, and I look forward to hearing the testimony of 

all of the witnesses. 

At this time I yield back. 

Mr. SNOWBARGER [presiding]. I think I am going to take the prerogative of going out of order and just have Mr. Allen, if you want 

to make a statement. 

Mr. ALLEN. I have no statement at this time. 

Mr. SNOWBARGER. OK. Mr. Barrett. 

Mr. BARRETT. I have no formal statement. 

I just simply want to say, as we talk about the NLRB, that the 

major experience that I have had has been the involvement—the 

active involvement in a situation in my district where Pabst Brewery pulled out after 140 years in Milwaukee; and there were 

charges made by the union, and the National Labor Relations 

Board has been very active, and I want to thank you for that. I 

think you have responded very well and have given a glimmer of 

hope to what has been otherwise a very sad situation in my district. 

Mr. GOULD. Thank you, Congressman. 

Mr. SNOWBARGER. Mr. Lantos. 

Mr. LANTOS. I have no formal opening statement, Mr. Chairman, 

but I would like to say a couple of things. 

Chris Shays was correct in saying that when I chaired this subcommittee, during the happier days of this body, we did have annual hearings concerning the work of the NLRB, and I am pleased 

that Chairman Shays called this hearing. 

I have a number of specific questions I will put to Chairman 

Gould, but let me say at the opening that I have been enormously 

impressed by the Gould chairmanship of the NLRB. 

You have been operating, Mr. Chairman, under enormously difficult circumstances, not of your own making, and I want to publicly tip my hat to you for having maintained the dignity and the 

decorum and the effectiveness of this body under the most extremely difficult circumstances. I hope we will be able to remove 

those circumstances so that an NLRB at full complement, fully confirmed, can finally do its job properly. 

I think you have been subjected to unfair criticism from many 

quarters. I have very carefully looked at and analyzed those bits 

7

of criticism and I have found them to be wanting. I think you are 

performing in a remarkable fashion in an almost untenable situation with only three members of a five-member Board, with two of 

the three members not having been confirmed. 

As a matter of fact, may I ask, are you in fact the only confirmed 

member of this Board? 

Mr. GOULD. I am, Congressman. 

Mr. LANTOS. Well, I think that it is an appalling state of affairs 

that a body of such importance which should have a full complement of five members, all five fully and duly confirmed, so they 

can do their job without fear and intimidation, should be overlooking the whole labor management picture in the United States. 

It would be analogous to having eight Supreme Court justices on 

temporary appointment, waiting to be confirmed, and I would like 

to see how the Supreme Court’s decisions would be unfolding under 

those circumstances. 

So let me commend you and congratulate you, Mr. Chairman, 

and I look forward to asking some specific questions of you. 

Mr. GOULD. Thank you, Congressman Lantos. 

Mr. SNOWBARGER. I would remind Mr. Lantos that happier days 

kind of depend on your perspective, I think, but Mr. Sanders. 

Mr. SANDERS. Thank you, Mr. Chairman. I am going to have to 

be leaving in a moment because I have an amendment on the floor, 

but I want to just concur in the statement that Mr. Lantos has 

made. 

It is no secret that the work that Chairman Gould is involved in 

is highly contentious. There are some of us who believe that workers in this country have an absolute right to come together in 

union to fight for their rights, and some of us believe that one of 

the reasons that the standard of living of American workers has 

gone down precipitously over the last 25 years is the weakening of 

the trade union movement. 

It is no secret that there are other people within the Congress 

who do not hold these views. It is also no secret that there are people who are working very hard and are spending huge amounts of 

money trying to destroy the trade union movement, making it 

harder and harder for workers to come together in unions. 

One of the real problems that I have—and I have introduced legislation to try to address this problem—is that right now the truth 

of the matter is that it is in fact very difficult for workers to come 

together to form a union; that an employer with strong consultants, 

with good legal staff, can stall and stall and stall; and if workers 

do all of the right things, if workers play by the rules, some of their 

most active proponents of unionism will be fired, the process will 

be delayed, and there will be no retribution on the part of the employer. 

I find it, as Mr. Lantos just indicated, extremely unfortunate and 

extremely unfair that both Mr. Gould and Mr. Gould’s department 

is understaffed, is not given the opportunity to do the work that 

they are supposed to do, which is to protect the interests of American workers in a fair way. 

I just want to applaud Mr. Gould for the work that he has been 

doing, and I hope that this Congress can give him the staff and the 

associates so that he can do his job adequately. 

8

Thank you, Mr. Chairman. 

Mr. SNOWBARGER. Mr. Kucinich. 

Mr. KUCINICH. Thank you, Mr. Chairman. I would like to welcome the NLRB Chairman, William Gould, to his first appearance 

before the Human Resources Subcommittee. 

During my 6 months in Congress, I can say that this subcommittee has developed an excellent record of adopting a reasonable and bipartisan approach to its review of agency operations. 

When it comes to questions of labor management relations, however, it may be a challenge to maintain this constructive spirit. 

Since its formation in the 1930’s, the NLRB has played an important role in our society. It is the main government organization 

that ensures that employees can freely decide whether or not to 

band together into labor organizations. It is critical, absolutely critical, to the stability of our society that the NLRB have the capacity 

to carry out that mission. 

The Government Performance and Results Act provides an opportunity to determine whether the NLRB does have enough resources to carry out its mission for the good of our country. I would 

like to echo Mr. Sanders’ remarks. Working people have rights in 

this country. The nature of a democratic society is that we defend 

workers’ rights. We do that legislatively, we do that in speeches, 

we do that in meetings, and we do that through having a national 

labor relation board to make sure that workers’ rights have not 

been stripped covertly through tactics which undermine people’s 

right to organize, the right to be able to strike, the right to file 

grievances, the right to be able to stand up and protect the interests of their fellow workers. 

The National Labor Relations Board has a long and proud history of representing American workers, and I have to say that Mr. 

Gould, among all the NLRB chairs that I have been familiar with 

or have read about, stands out as someone who has fearlessly defended workers’ rights. I want to welcome you to this committee 

and let you know that in this committee there are members who 

are going to defend your ability to stand up for American workers 

and to use the agency of government and put it on the side of 

American workers and their hopes and dreams, and I thank you. 

Mr. TOWNS. Will the gentleman yield? 

Mr. KUCINICH. I will yield. 

Mr. TOWNS. The gentleman is still a Democrat, isn’t he? 

Mr. SNOWBARGER. He is real uncomfortable over here. 

Mr. KUCINICH. Imagine if I had crossed over and made that 

statement as a Republican, we would all be singing from the same 

hymn book. I am here as an American first, as a supporter of labor, 

as a Democrat, but also as a friend to the Republicans to work with 

you to make sure that working people have the opportunity to be 

well represented in NLRB. 

Mr. SNOWBARGER. Has the gentleman’s time expired yet? 

Just a few brief comments before we get to the witnesses. We 

want to thank you for your appearance here today, and as the 

chairman indicated, he will be back shortly. 

As has been indicated, though, there are two sides to some of 

these issues. I come from the State of Kansas which is a right-towork State, and about a year ago—I believe a year ago in April—

9

there were field hearings held in my district by my predecessor and 

other Members of Congress on the issue of salting. 

The thing that concerned me, again in a right-to-work State 

where we have both union members and shops that are open and 

do not have union members, was the practice of unions sending organizers into those businesses where there were not labor organizations and were not union representatives, and there was no interest in union representatives. The workers in those companies were 

pleased with management and were communicating very well with 

management, and very frankly, the NLRB made the right decision 

in most of those cases. The problem was, they made the right decision in those cases after the employers were forced to spend hundreds of thousands of dollars on legal fees in trying to protect their 

interests and protect even their employees. 

So I will be having some questions later on about the practice of 

salting and about NLRB’s approach to that. 

I take a different approach to this than Mr. Kucinich. I think 

that the NLRB should be taking a neutral approach to these subjects, not to be an advocate; and unfortunately, I think that they 

have in later years become an advocate for labor unions as opposed 

to taking a neutral stance in just protecting the rights of both 

workers and management. 

With that, let me make a couple of business actions here. First 

of all, I would ask unanimous consent to enter into the record a 

statement from the Associated Builders and Contractors that has 

been presented to me and again indicates problems with the practice of salting. 

Seeing no objection, then I would ask unanimous consent that all 

members of the subcommittee be permitted to place any opening 

statement into the record and that the record remain open for 3 

days for that purpose. Without objection, so ordered. 

[The prepared statement of the Associated Builders and Contractors, Inc., follows:]

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Mr. SNOWBARGER. I ask further unanimous consent that all witnesses be permitted to include their written statements in the 

record. 

Without objection, so ordered. 

It is the practice of this committee, as with most congressional 

committees, to swear in our witnesses. So I would like to ask them 

to stand, if they would, please. 

If you have people that will be testifying with you, I would ask 

them to stand as well. 

[Witnesses sworn.] 

Mr. SNOWBARGER. I note for the record that the witnesses did respond in the affirmative. Thank you, gentlemen. 

I will call on the chairman of the National Labor Relations 

Board, Mr. Gould. 

STATEMENTS OF WILLIAM B. GOULD, IV, CHAIRMAN, AND 

FRED L. FEINSTEIN, GENERAL COUNSEL, NATIONAL LABOR 

RELATIONS BOARD, ACCOMPANIED BY ALFRED L. WOLFF, 

CHIEF COUNSEL; ROBERT A. GIANNASI, CHIEF ADMINISTRATIVE LAW JUDGE; AND HARDING DARDEN, BUDGET OFFICER 

Mr. GOULD. Thank you, Congressman. It is a pleasure to be able 

to come here and speak to you about our agency, our act, and the 

progress that we have made under it, and to focus on GPRA as 

well. 

With me, to my left, is Fred Feinstein, the general counsel of the 

agency; and to my right, Al Wolff, my chief counsel. Also with us 

is Robert Giannasi, the chief administrative law judge; and Harding Darden, our budget analyst. I have asked them to stand and 

be sworn in, because from time to time we may want to consult 

with them. 

I want to say that I have, during these past 31⁄2 years as chairman of the agency, viewed it as an honor and privilege to serve the 

U.S. Government and to accept President Clinton’s invitation to 

serve. I regard myself as part of this administration, but I want to 

note for the record, as I have on other occasions, that never has 

there been any communication between the White House and myself about any issue that will come before our agency, whether it 

involves adjudication or rulemaking. 

This is a great agency, the National Labor Relations Board. It 

consists of competent and professional people throughout the 

United States, who are deeply committed to the rule of law; and 

although I believe that here in Washington in the 1980’s and the 

early 1990’s, the agency lost its way in terms of meeting the goals 

that are set forth in the statute, it remains a very important and 

great agency. 

In late 1995, our Board brought the backlog—which, as you 

know, reached 1,600 cases in the 1980’s—to a historic low, the lowest it has ever been since 1974; and I think that this is one of the 

indicia of the success that we have been able to obtain over these 

31⁄2 years. Although affirmance by the courts of appeals of our orders is not necessarily dispositive of our success, we have achieved 

a record, I think, that we can be proud of, that compares favorably 

with our predecessors in obtaining affirmance of our decisions. 

15

I might say that these statistics which I have set forth are deflated by the fact that they don’t include our settlements, which almost invariably provide for relief and, therefore, enforcement, at a 

minimum, in part; and they don’t include consent decrees and summary judgments which also are a measure of our success in the circuit courts of appeals. 

As I have indicated in my statement, fiscal year 1996 really represents the first year in which the Board appointed by President 

Clinton has had its success before the courts measured, and we 

have done, I think, appreciably better than the boards before us. 

When I came to Washington, I had as my objective three important considerations, three important objectives. No. 1, I set out to 

attempt to expedite our administrative process for unions and employers, involving unfair labor practice charges filed by both sides, 

as well as representation petitions. No. 2, I attempted to induce 

through a number of mechanisms—the advisory panel that has 

been referred to by Congressman Towns—an environment in which 

we could bring labor and management together and foster a greater 

measure of cooperation and substitute dialog and discussion for 

strife. I think that we have done that as well. 

Finally, I wanted to achieve a better balance in administrating 

our statute than has been done in previous years, and I think that 

this Board has acted as an impartial arbiter between the competing 

claims of labor and management. Let me just refer to a few of the 

specifics, some of which I have outlined in my statement. 

Section 10(j) of the statute: We have used 10(j), I think, with 

good results on 258 occasions since March 1994, and we have had 

a success rate on the order of 90 percent. I think that we have 

taken seriously the requirements of GPRA and tried to become a 

more effective agency. This agency historically has been concerned 

with the kinds of concerns that GPRA is focused upon. 

Since 1959, since the time of General Counsel Rothman, there 

have been timetables in the regions for the disposition of cases. We 

have moved effectively with our new computer system, our CATS 

system, the initiative that was undertaken in 1994. We have pursued a number of strategies, superpanels, settlement judges, bench 

decisions, speed teams, time targets for our administrative law 

judges, all of which, I think, have made this agency more effective 

and able to accomplish its mission more effectively. 

Now, it may be, Mr. Chairman, that we have not articulated all 

of this as well as we should have in our mission statement. We are 

really learning as we go about the requirements of GPRA. This 

statement, I am sure, is in need of revision; and we welcome your 

input, Mr. Chairman, and the input of all of the members of this 

committee as to how we can make our mission statement more 

compatible with the purposes of the statute. We recognize that the 

purpose of the statute is to involve us in a process where we speak 

with the Congress, where we consult with the Congress, and where 

we get the input of the Congress. 

We have served our mission statement upon not only your committee, but all of the other relevant committees, and we stand 

ready to get your advice about how we can do better in this regard.

16

And I am pleased, Mr. Chairman, that you have invited us here to 

be with you and to testify about these matters, and I stand ready 

to answer any questions or comments—respond to comments that 

you and your colleagues may have. 

Thank you very much for your time. 

[The prepared statement of Mr. Gould follows:]

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Mr. SHAYS [presiding]. Thank you, Mr. Gould. We are going to 

be asking questions as soon as we hear from Mr. Feinstein. 

My sense is that directing the Board, that you basically get your 

cases, once they have gone through your operation, Mr. Feinstein, 

and that most of the employees would be found in your operation 

as opposed to the Board; is that correct? 

Mr. FEINSTEIN. That is correct. 

Mr. SHAYS. OK. Why don’t you give us your testimony and then 

we will ask you both questions. 

Mr. FEINSTEIN. Thank you, Mr. Chairman, for this opportunity 

to appear before the subcommittee to further elaborate a little on 

the question you just asked. 

The NLRB’s statutory functions are vested separately in a fivemember Board and the general counsel. The general counsel has 

independent supervisory authority over the agency’s regional offices which, together with the general counsel’s headquarters division, comprise nearly 90 percent of the agency’s staff. 

Numerous commentators have recognized this unique 

gatekeeping function of the NLRB general counsel. Acting primarily through the regional directors and their regional staffs, the 

Office of General Counsel screens and thereby resolves thousands 

of nonmeritorious allegations each year. 

This year, as in the past, more than 60 percent of the unfair 

labor practice charges have been dismissed or withdrawn for lack 

of merit, putting those disputes to rest for good in a relatively short 

period of time. Our time targets vary from about 45 days to 10 

weeks in resolving those cases. 

We have also achieved a settlement rate of over 96 percent in the 

remaining cases, and thereby have saved countless expense, both 

public and private dollars, in litigation costs. Last year, indeed, 

more than 90 percent of the charges filed with the agency were 

processed from beginning to end entirely in the field without any 

involvement by Washington. 

This is indeed a record of efficiency that is now being tested as 

never before. Reductions in the agency’s staffing have presented 

enormous challenges, notwithstanding the fact, as the chairman 

has indicated, that——

Mr. SHAYS. Excuse me. We are going to let you continue. We 

have a vote, and we will just go to it in a little bit, but why don’t 

you finish? 

Mr. FEINSTEIN. As I say, the staffing reductions have presented 

enormous challenges, and notwithstanding the fact that we have 

been taking numerous steps to stay on top of rising backlogs. 

Now, when I speak of backlogs, I am speaking of field backlogs, 

investigation and trial backlogs, the backlogs that measure the 

time a case takes before it receives attention by the Board in 

Washington. Only about 5 percent of our cases ever make it to 

Board consideration, and when I am referring to backlogs, I am referring to that part of our process. 

Our present staffing level of about 1,950 is the NLRB’s lowest 

since 1962, notwithstanding the fact that our caseload in 1962 

was—that our caseload now is more than 60 percent greater than 

it was at that time, when we had a comparable staffing level. Of 

100

course, the NLRB is required, the general counsel’s office is required to process all cases filed with the agency. 

In addition to this growing number of cases per staff, the nature 

of the cases themselves has been growing in complexity, further 

adding to our workload burden. Because of all of this, I spend most 

of my time working with the excellent agency management and 

others within the agency to try to figure out how best to stretch 

our increasingly limited resources. 

We very much understand the importance of GPRA and the development of our strategic plan in meeting this challenge. Indeed, 

a number of the innovations that we have implemented over the 

past few years, I believe, have been very much informed by and 

consistent with the principles of GPRA, and I want to just briefly 

mention some of those initiatives that we have undertaken. 

We have eliminated significant layers of review within our process. We have cut back on space. That has included the closing of 

two offices and the cutback of more than 40 percent of the space 

in an additional seven offices. All 24 field locations have undergone 

significant space reductions, and our total field office space has 

been reduced by nearly 10 percent with further reductions slated 

in the future. 

We have cut back on travel significantly. These efforts have included increasing use of telephone affidavits, the development of 

questionnaires, and other kinds of alternative investigative techniques that have allowed us to significantly cut back on our travel 

costs. We have turned back to the government nearly 70 government-furnished vehicles, and their parking spaces have been eliminated in the last few years. The regional travel expenses during fiscal year 1996 were 44 percent lower than the previous year. 

We have developed a program of resident agents, which makes 

us more efficient and more able to get to the cases quickly. We 

have also been in the process of developing an extensive computerization program which has entailed, in addition to the development of software systems and hardware systems, the restructuring 

of our office support staff personnel, training, and other significant 

efforts to bring about the transition to an automated case-tracking 

system throughout the agency. 

I might comment, Mr. Chairman on your opening statement 

where you spoke about these efforts. One of the fundamental principles of design of these systems is that they be flexible and openended precisely so that they can be made to be compatible with the 

developing strategies and objectives and goals required by GPRA. 

I recognize that we have not done an adequate job of describing 

that in our plan and to the GAO in assessing it. We have begun 

that process to better describe and communicate how that plan, we 

believe, is very much consistent with the dictates of GPRA. 

In addition to these economizing efforts, we have also attempted 

to focus on operational reforms that would best allow us to carry 

out the agency’s responsibilities in enforcing the act. We have developed a case management system called Impact Analysis, which 

seeks to understand the priority of each case when it is filed with 

the agency, and in accordance with those developing priorities, better understand the resources necessary to devote to the processing 

101

of that case; and we have modified our time targets in the processing of those cases accordingly. 

There has been a renewed emphasis on all aspects of our case 

processing, including the processing of elections. We have attempted to implement greater consistency and uniformity so that 

all parties—employers, employees, unions—understand that when 

a petition for an election is filed with the agency, the agency will 

carry out its most important function of conducting that election in 

a manner that is consistent and uniform. 

Mr. SHAYS. Mr. Feinstein, let me just say, we have a vote in 

about 8 minutes. Do you think you can finish your comments in 

about 3? 

Mr. FEINSTEIN. I certainly can. 

Mr. SHAYS. And then what we will do is recess—it will probably 

be about 15 minutes—and then we will come right back. We have 

to go vote. 

Mr. FEINSTEIN. Again, I will skip through these quickly, and I 

will be happy to discuss them further in the question period. 

Other operational reforms have included the reinvention of our 

appeals office here in Washington, eliminating layers of review and 

prioritizing cases so that we have significantly cut down on the 

case processing time. 

Each of these three initiatives that I have just mentioned have 

received a Hammer Award from in the Vice President’s National 

Performance Review earlier this year. 

Despite these continuing efforts to improve efficiency and effectiveness, because of the continued reduction in our staffing levels, 

backlogs at several stages of our case-handling pipeline have continued to grow. In April 1997, there were approximately 7,600 unfair labor practice cases pending investigation, nearly double the 

number of just 3 years ago, which of course is of enormous concern 

to us. 

Our efforts over the past several years have relied very much on 

the principles and concepts of GPRA. In accordance with the act, 

we are now working on the formal development and refinement of 

our strategic plan, and in so doing, you certainly continue to be 

helpful in giving us further insight in how to approach the difficult 

operational issues facing the agency. 

Just in the past week we have been discussing our plan with the 

GAO, who have offered important guidance that has already, as 

you have indicated, led to modifications in the plan; and we certainly continue to seek the input of the GAO in developing and refining the plan. But more importantly, of course, we recognize and 

welcome the consultation with Congress in the development of this 

plan as the chairman has indicated. We recognize that we still 

have a way to go in this process, and we look forward to the consultations with the Congress and others in tackling these significant operational issues that face the agency. 

I thank you for the opportunity to be here today, Mr. Chairman. 

[The prepared statement of Mr. Feinstein follows:]

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Mr. SHAYS. Thank you, Mr. Feinstein. What we will do, Mr. 

Gould and Mr. Feinstein, is vote and come back, so we will recess 

for about 15 minutes. 

[Recess.] 

Mr. SHAYS. I will call the hearing back to order. 

I am going to just have both of you describe to me where you 

interact and where your roles are clearly different. I mean, it is 

kind of interesting to me that you have one Results Act for the two 

of you, yet you are a separate Board. 

You are, in a sense, almost in a prosecutorial role. You funnel 

things through—funnel is a bad word. You basically—it flows 

through your agency to the Board, some things get there and some 

things don’t. But describe to me where you would sit down and talk 

together as partners and where you would basically shut the door 

and not have dialog. 

Mr. GOULD. Well, the area, Mr. Chairman, where we would shut 

the door and not have dialog and where the general counsel is in 

an adversarial position vis-a-vis respondents. He is independent of 

the Board insofar as his prosecutorial function is concerned. That 

is to say, he has the responsibility to investigate charges which are 

filed with our regions and to determine whether a complaint should 

issue, and then he is a party litigant in that posture before us. 

Once we issue an order, then his role changes. Then he becomes, 

and I recognize that there are some people who are puzzled about 

this, but this is the statutory scheme which you in Congress have 

created for us, he becomes our lawyer, and we consult with him, 

provide him with instructions on a wide variety of matters that we 

may want him to pursue, and he represents us in the circuit courts 

of appeals and in matters involving issues that might go to the 

U.S. Supreme Court. 

He also represents us if we vote to authorize injunctive relief in 

a so-called section 10(j) proceeding. 

So he is independent of us for the purpose of a prosecutorial 

function and acts as our lawyer, and we, of course, are the judicial 

component of the Board. It is our responsibility to interpret the 

statute and to provide guidance as the expert agency. 

On matters involving GPRA, we would, of course, discuss these 

issues together. We met yesterday to talk about this hearing. There 

is no bar between us insofar as our responsibilities under the statute are concerned. 

Mr. SHAYS. I am going to have you jump right in, but just a real 

quick answer. Would it be improper for you to discuss a case with 

Mr. Feinstein that was pending before you? 

Mr. GOULD. It would be improper for me to discuss a case. 

Mr. SHAYS. Or any of your staff? 

Mr. GOULD. Or any of my staff, or any part of the Board, to discuss a case that is pending before us where he is the party litigant 

in a matter before us; and I do not and would not discuss such a 

matter with him. 

Mr. SHAYS. I am tempted to ask who is first among equals here, 

because you responded first, but maybe I should already know the 

answer. 

Mr. FEINSTEIN. Well, to further elaborate on the chairman’s answer, he has described my role as prosecutor and where the diviVerDate jul 14 2003 13:37 Jan 20, 2004 Jkt 010199 PO 00000 Frm 00113 Fmt 6633 Sfmt 6602 W:\DISC\46442 46442
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sions lie, that there is a wall. It really is a two-sided, two-headed 

agency. That is how it has always been described in the past. The 

general counsel side of the agency and the Board side of the agency, and the chairman has described, in terms of case processing, 

how that division works. 

I am one of the parties to every case, virtually every proceeding, 

that is before the Board, and for that reason, any communications 

with the Board about the case has to be in the formal proceeding. 

Any other kind of communication would be an ex parte communication. So there is a very pronounced, defined wall between the two 

sides of the agency for that reason. 

In terms of administering the agency, managing the agency, that 

division is likewise carried through. I have the supervisory, managerial, administrative task of directing the general counsel side of 

the agency, and that is indeed, as I suggested in my testimony, 

what I spend a good part of my time doing, is managing the agency, the regional offices, their operations, and the headquarters staff 

of the general counsel. 

So there is that clear separation between the general counsel’s 

office and the Offices of the Board. 

The areas, as the chairman has indicated, where we are able to 

discuss and work together are the general issues that affect the 

whole agency. One of those, for example, would be the budget, 

where I consult with the chairman and the Board members about 

budgetary issues, because we have to obviously—we are given—we 

are not funded separately. The agency is funded as a whole, and 

once we get the funding, then it is allocated between the different 

sides of the agency. 

So there are issues that are not case issues, more of an administrative nature, where we are able to discuss and exchange thoughts 

about what is transpiring; and one of those issues is in the development of a strategic plan. The general counsel’s office’s efforts are 

focused on the general counsel side of the agency, which again, as 

I suggested, covers about 90 percent of the staff of the agency; and 

the chairman’s efforts and the initiatives that he describes have to 

do with efforts and initiatives that pertain to the Board side of the 

agency. But there are certainly issues which overlap, and we certainly do try to work together on those issues. 

Mr. SHAYS. I think this is obviously an interesting relationship. 

Mr. FEINSTEIN. It is very interesting, Mr. Chairman. 

Mr. GOULD. I will echo that. 

Mr. SHAYS. Who decides where you have disputes, who would referee an honest disagreement among two Presidential nominees confirmed by the Senate? I mean, you both go to the Senate, correct? 

Mr. GOULD. That is correct. 

Mr. FEINSTEIN. Correct. 

Mr. SHAYS. So you didn’t hire Mr. Feinstein, he was selected by 

the President. 

Mr. GOULD. Correct. 

Mr. SHAYS. Who decides disputes between the two of you? Where 

do you logically——

Mr. FEINSTEIN. Well, largely, Mr. Chairman, we try to work 

them out. If there are issues where there is disagreement, then the 

Board could take a vote on it. Of course there are other——

111

Mr. SHAYS. Let me ask you this, though. So then the Board 

which you serve with, in a sense, oversees the operation? 

Mr. GOULD. Well, the Board delegates this managerial responsibility to the general counsel, it is referred to the general counsel, 

and by virtue of its delegation, the general counsel administers the 

regional offices. Now, the Board has responsibility for the Board. 

There is no outside party that would referee a dispute between us. 

Mr. SHAYS. Maybe I am on sensitive ground, because maybe this 

happens more by agreement than——

Mr. GOULD. It does. 

Mr. SHAYS. But by law, is the counsel’s office a creature of the 

Board? 

Mr. GOULD. It is not a creature of the Board. Since the TaftHartley amendments to the law, the general counsel became an 

independent party for the purpose of his or her prosecutorial functions; and as I say, the peculiar thing—and this is the statutory 

scheme which Congress has created—is that once we issue an order 

subsequent to litigation before us, the general counsel on one side, 

the respondent on the other side, then the general counsel becomes 

our lawyer for the purpose of obtaining enforcement. 

Mr. SHAYS. I understand that part. 

You wanted to say something. 

Mr. FEINSTEIN. Right. Just to say again, to further elaborate on 

what the chairman has said, the basic part of the responsibility of 

the general counsel is statutorily established under section 3(d) of 

the act which establishes this authority. There are additional responsibilities that the general counsel’s office has exercised for 50 

years that come through delegation from the Board. 

The chairman was referring to acting as the counsel, the lawyer 

for the Board after the Board has made a decision, for example, 

and there are some others. But the basic part of the general counsel’s responsibility is statutorily based. 

Mr. SHAYS. I am going to have specific questions about 10(j) and 

I am going to have questions about how the flow comes to the 

Board, so I will get into some more detailed issues. 

At this time I would like to recognize Mr. Towns, the ranking 

member. 

Mr. TOWNS. Thank you, Mr. Chairman. 

Let me begin with you, Mr. Feinstein. In your testimony you discuss the current backlogs at the regional level. Can you tell us how 

these backlogs adversely affect the employers and employees and 

threaten a healthy, growing economy? 

Mr. FEINSTEIN. I think they adversely affect all concerned. They 

certainly adversely affect the parties to the dispute. 

What we have found is, the quicker that we are able to get to 

a case to resolve the issues, to conduct an investigation, amongst 

other things, the better able we are to settle that dispute. The 

longer we have a dispute before us, the harder it is to settle it. The 

parties get more locked in, the differences perhaps get magnified, 

the liability might increase if we are talking about back pay as part 

of the remedy, so that one of the definite advantages of our ability 

to get to our cases quickly is our ability to settle them. 

I think perhaps, more fundamentally, a workplace dispute that 

festers, a workplace dispute that lingers, is more destructive to 

112

that workplace for both employee and employer alike. The quicker 

that that dispute is resolved, the quicker we are able to come to 

a determination, and the quicker it goes away, the quicker that a 

productive relationship between those involved in that dispute is 

able to be resumed. So I think fundamentally the benefit of our 

ability to process cases quickly is that we resolve those cases quickly and the workplace itself is more productive. 

Mr. TOWNS. Let me ask both of you this, and I am not trying to 

put you on the spot, but I think that a hearing, we always want 

to try to learn as much as we can, and in some instances I think 

that we can—in terms of the Congress, can be helpful. 

Can you tell us what the Congress can do or what we have done 

to contribute to your backlog at the regional level, and what we can 

do maybe to help alleviate this? 

Mr. GOULD. Well, the principal—of course, the principal problem 

we are confronted with is our budget, and because of the slight increase that we received in the last budget, we were able to hire a 

number of people in the regional offices. We need people to process 

the cases. We need new people, that are really the lifeblood of the 

agency; and the inability to obtain an adequate budget is a major 

factor in the backlog problem. 

Mr. FEINSTEIN. If I could further elaborate, as the chairman has 

said, our agency is people. Eighty percent of the agency budget 

goes to salaries and benefits, another 10 percent goes to rent, and 

that leaves 10 percent over. So what our budget is about is basically paying the salaries of the staff. 

As I suggested in my statement, the staff of the agency now is 

at about the level it was in 1962 when we had a little more than 

half—we had a little more than half the number of cases we have 

now. The number of cases per staff member in just the last 8 or 

9 years has increased about 30 percent. 

While what we have is a situation where each person is handling 

more and more cases, I have to emphasize again that it is not just 

a question of numbers here. As GPRA keeps telling us, we have to 

look at quality issues and at what is actually going on in those 

cases; and there are numerous indications that the cases that we 

handle are also more complex, difficult cases for a number of reasons. We have instituted screening mechanisms, changes in the 

economy itself have contributed. So we have fewer people doing 

more cases that are more difficult. 

That, I think, put very simply, is the reason that we have seen 

the backlogs increasing. Everything that we know about how the 

agency functions, while there are lots of efficiencies which we can 

and should and have been considering, the basic element in reducing our backlog has to do with our staffing level. 

Mr. TOWNS. Thank you very much. 

Let me just ask one more question, Mr. Chairman. 

This happened I guess really before you got there, Mr. Gould. In 

1990, GAO issued a report which found that the NLRB headquarters was slow in processing cases. Can you tell me what steps 

the Board has taken to address the 1990 concerns of GAO and how 

these concerns affect the day-to-day work of deciding cases? 

Mr. GOULD. Well, we have taken a number of steps, Congressman. One of them, the first one at the Board level and in WashVerDate jul 14 2003 13:37 Jan 20, 2004 Jkt 010199 PO 00000 Frm 00116 Fmt 6633 Sfmt 6602 W:\DISC\46442 46442
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ington was to institute a speed team procedure whereby the staff 

of Board members are advised to try to identify cases that are factual or involve credibility issues and either a hearing officer or an 

administrative law judge has already made the determination on 

that, and to put those cases on the fast track. We have been successful in using the speed team mechanism in connection with 30 

percent of our cases, to get them out in less than a couple of 

months. 

Second, we have instituted a so-called ‘‘superpanel system’’ 

where we have met the Board members every Tuesday and dealt 

with representation cases. Sometimes we are able to get those out 

in a matter of a week or so of the time that they come into Washington. 

Third, we have made certain reforms as they relate to administrative law judges. We have authorized our administrative law 

judges to issue so-called ‘‘bench decisions’’ where the issue is factual, it is a one-issue case, or where the law is very clear. They 

don’t need to get briefs which take up 4 months of the time of the 

administrative process. 

We have also established time targets for our administrative law 

judges. We are in the process of creating time targets for the handling of representation cases after a union has been certified in a 

controversy, or has not been certified and a controversy arises out 

of the conduct of our election. 

Mr. TOWNS. I am really impressed with the things that you have 

been able to do. 

Let me ask this, Mr. Chairman. This is really my last question. 

It is my understanding that there is some concern about using 

mail ballots in union elections. I just find that to be a little strange. 

I think I recall, I think it is the State of Oregon conducted a congressional election, Senate, a senatorial election as well, by mail in 

1994–1995. I have not heard any allegations of any kind of widespread fraud in those elections. Can you tell me how mail ballots 

would be helpful and what antifraud assurances are available, if 

you use mail ballots? 

Mr. GOULD. Yes, Congressman. We have of course as an agency 

used mail ballots from the beginning of the agency in the 1930’s, 

and the National Mediation Board, functioning under the Railway 

Act, conducts all its ballots by mail and has done so for a decade. 

When I first came to the agency, one of the first cases that I was 

confronted with involved an election where some of the employees 

were on strike. The regional director wanted to have an election in 

the plant. Well, there was no way that the strikers could participate in the ballot. Some of them were working out of State. So we 

ordered, and it had not been done so previously, a mail ballot in 

that situation. 

Second, where employees’ work schedules are irregular, where 

they are part-timers and they are coming in under a number of different schedules, sometimes in a number of different facilities, we 

have conducted mail ballots then. 

Third, of course, where the strain upon our resources is considerable, where vast distances exist between the Board offices and the 

plant premises, that has been a factor in my judgment in which it 

is appropriate to conduct a mail ballot. 

114

Now, we issued on June 20 of this year two lead decisions on this 

matter, and one of them was the London’s Farm Dairy case, 323, 

NLRB No. 186, which was decided by us on June 20. We noted that 

under our mail ballot procedures, instructions to employees specifically state that they are to be marked in secret. They emphasize 

that it is important to maintain that secrecy and direct the employee not to show the ballot to anyone after it is marked. The ballots are typically mailed to an employee’s home address, and in 

that setting, the employee has, as we said in London Dairy, ample 

opportunity to cast their ballots in accord with instructions and in 

complete privacy. 

During our entire 62-year history, there has been only one situation which was brought to us involving the invasion of privacy—

in that case, a decision in 1994 where we found that the employer 

had invaded the employee’s privacy. The National Mediation Board 

has had only, I think, three or four cases in the entire 71-year history that it has had conducting mail ballots. Actually, their statute 

has been in existence for 71 years; they have only been doing this 

since 1934. 

So I think that our procedures which we have put in place protect the employee’s right to privacy, and what we have done 

through the mail ballot is provide an opportunity to enfranchise 

workers who would otherwise be disenfranchised because of their 

inability to participate in the process at a particular facility. 

I am very proud of what we have been able to do in this regard, 

Congressman Towns, and I hope that we continue to use mail ballots in the circumstances that I have alluded to. 

Mr. TOWNS. Thank you very much. I thank both of you for your 

testimony. I want you to know that I am impressed with the things 

that you are doing. Thank you very, very much. 

Mr. SHAYS. Thank you, Mr. Towns. 

Mr. Snowbarger. 

Mr. SNOWBARGER. Thank you, Mr. Chairman. I have several different lines of questioning, so maybe I will take several rounds 

here or something. 

First of all, I just want to try to get a handle, we have talked 

about the number of employees that the NLRB has, and I am trying to get a handle on how workload is distributed here. How many 

employees are there here in Washington? 

Mr. GOULD. In Washington, there are about 600——

Mr. FEINSTEIN. It is between 600 and 700, the general counsel 

side of the agency and the Board side of the agency. Someone is 

checking to see if we have an exact figure. 

Mr. SNOWBARGER. OK. 

Mr. FEINSTEIN. 700 roughly in that area. 

Mr. SNOWBARGER. In your testimony you indicated that there are 

1,950 full-time. Was that just on general counsel side, or is that the 

whole agency? 

Mr. GOULD. The whole agency throughout the entire United 

States. 

Mr. SNOWBARGER. So of that 1,950, roughly 700 or maybe a little 

less than that are here in Washington? 

Mr. GOULD. Yes. 

Mr. FEINSTEIN. Right. And there are about 1,400 in the field. 

115

Mr. SNOWBARGER. OK. I guess my concern is that in your testimony you indicated that of the 39,000 charges of unfair labor practices last year, 90 percent of the cases were resolved in the field 

with no Washington involvement whatsoever, and yet you have 

more than a third of your work force located here in Washington. 

Yet I hear you complaining that you don’t have enough folks out 

in the field. 

I am missing something here. 

Mr. FEINSTEIN. Well, if I can, those 90 percent of our cases that 

are settled are the cases in which we have investigated or dismissed the case, of which 60 to 65 percent of the cases fall into that 

category. There are others where a determination is made to proceed, that the case has merit, and the case is settled in the field, 

either prior to the institution—prior even to the issuance of a complaint or after the issuance of a complaint and prior to an administrative hearing, or even during process of the administrative hearing. 

Mr. SNOWBARGER. So now we are up to what, 96 percent of all 

cases? 

Mr. FEINSTEIN. No. 

Mr. SNOWBARGER. Well, 60 percent plus 96 percent of 20 percent, 

it gets you awful close to the mid-90’s, I would think. I haven’t 

done the math on it. 

Mr. FEINSTEIN. The point I was about to make is that some of 

those cases that settle, there is Washington involvement. We have 

a Division of Advice in Washington, for example, which is the arm 

of the general counsel’s office that is used to consider the most difficult cases, the most complex cases, the cases in which the region 

is not quite sure where the law stands. So those cases might get 

sent in and then sent back to the region for a determination. 

Mr. SNOWBARGER. How many of the 700 employees would be advisors in that capacity? 

Mr. FEINSTEIN. Working in our Advice Division? I think it is between 30 and 40, close to 40, counting support staff. 

Mr. SNOWBARGER. And in how many regions? I apologize for my 

ignorance here, but how many regions does the NLRB break down 

into? 

Mr. FEINSTEIN. We have 33 regional offices and an additional 19 

subregional offices. 

Mr. SNOWBARGER. And 40 advisors. It is like you could have an 

advisor per office out in the field and perhaps the days they 

weren’t giving advice, they could be pursuing other things. 

Mr. FEINSTEIN. Again, these are the people that are perhaps 

most expert in the complexities of the law, and they have the assignment of taking the most complex cases and developing the positions that the general counsel would take in those cases. It is also 

an office that allows us to have some uniformity and consistency 

in the development of approaches the general counsel’s office would 

take. 

Mr. SNOWBARGER. So normally those 40 people all work together 

to come up with a solution for a particular problem? 

Mr. FEINSTEIN. Well, in some cases, they may confer together, 

but each case is assigned to an individual within that office, and 

they work in teams and they work together. There are other——

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Mr. SNOWBARGER. That can be done by teleconferencing or something of that nature, or they need to meet together? 

Mr. FEINSTEIN. As I say, it depends on the nature of the case. 

Each case is assigned to an individual, depending on the nature of 

case and the complexity of the issue—if I could proceed, others who 

work in Washington within the general counsel’s office include an 

office that hears all of the appeals from the region about cases that 

are dismissed. 

Again, according to our statute, anyone has a right to appeal the 

dismissal of a case, so we have a division in Washington that 

hears, that gives, in effect, parties a second chance to make their 

case before the agency that their case has merit. The case gets an 

independent review in that office to determine whether or not the 

case has merit. 

This is an important aspect of the quality review, in effect, of our 

regional operations, and it gives us a chance to make sure that 

what is happening in the regions is consistent throughout the country and consistent with the perspectives of the general counsel’s office. 

We have another division which is our Enforcement Division. As 

the chairman alluded to, the general counsel serves a role that once 

the Board has made its decisions, none of those decisions are selfenforcing. They all have to be enforced through action in the Federal courts, and we have a Division of Enforcement which handles 

all of our appellate court litigation in enforcing Board orders. 

We also have a special—we have a Supreme Court Division 

which handles appeals to the Supreme Court, and we have a division which handles other kinds of issues that might arise when the 

agency is involved in other kinds of legal actions. When novel 

things happen, we have some who work in that division as well. 

We also have a division which we now call our Compliance Division, which deals with cases once they have gone through the 

courts and there still is a failure of compliance; we have some experts in the field seeking ultimate compliance under those circumstances. 

We also have a Division of Administration which is the—we have 

a centralized Administration Office that does all kinds of things 

like procurement and personnel actions, and it also runs our entire 

computerization program. So there is an Administration Office as 

well, and that I have described as what is in the general counsel’s 

office. There is an additional staff of about, I think 100 or 125 that 

are the Board staff. 

Mr. SNOWBARGER. OK. I understand that you have a number of 

functions that you have to perform. Again, I am still perplexed, 

though, that we have a third of your force here in DC when, by 

your statistics, we have between 90 and 95 percent perhaps of all 

cases being settled at the field level and then a complaint that we 

don’t have enough people in the field, when they are already doing 

96 percent of the work. So I am not quite sure why we are centralizing things. 

Let me——

Mr. GOULD. If I may, Congressman, our hiring since we have 

been in Washington has been in the field; we are decentralizing. 

We have hired people in the field and we have allowed our staff 

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in Washington to attrit, so our whole movement has been toward 

the field. 

But I think there is another point that you must be aware of, 

and that is that when the case is settled or withdrawn, you are 

talking about a relatively abbreviated period, and——

Mr. SNOWBARGER. That depends on your perspective, I think. 

Mr. GOULD. Well, that is the fact. I am saying, compared to the 

litigation that is involved with our administrative law judges who 

come from Washington or a number of other places in the country 

and compared to the procedures that go on thereafter. 

Mr. SNOWBARGER. I understand that it can be quite an ordeal. 

Mr. GOULD. So you are talking about work which is very important to our agency, but which, in terms of time, takes a relatively 

abbreviated period. But we are trying to put more of our resources 

into the field. 

Mr. SNOWBARGER. With again, mid-90 percent of these things either settled or dismissed or withdrawn, why do we have such backlogs? 

Mr. FEINSTEIN. If I may, when we refer to backlogs, we are referring to—we have two essential measures of backlogs: that is, how 

long it takes us to get to the investigation of a case and how long 

it takes us to get to that case. What we have—so what we are talking about, in essence, is how long it takes us to process that case. 

Again, we have to process every case that comes to us. 

As I have suggested, the reason we have backlogs is because we 

have fewer people handling more cases and they are more complicated cases. It takes them longer to get to that case, to resolve 

that case, and that is the definition of our backlog. 

Mr. GOULD. Also, Congressman, you know in the mid-1980’s we 

did have in Washington an enormous backlog problem that was in 

the order, as I have indicated in my opening statement, of 1,600 

cases. We have brought that down in late 1995 to the low 300’s, 

and a historic, all-time low since 1974. 

So I think that our record since our term in office has been, relatively speaking, a very good one in that regard here in Washington. 

Mr. SNOWBARGER. We have a vote to get to in just a minute. Let 

me see if I can ask one more question. 

We keep referring back to staff loads way back when; I don’t remember the timeframe that you are going back to to compare staff 

loads and caseloads. I guess my question is, whatever this time period was that we were comparing to back there, how many of those 

cases were as a percentage, were deemed to lack merit or settled? 

Would it be roughly the same percentage? 

Mr. GOULD. The merit factor and settlement factor has remained 

very constant throughout the history of this Board. The merit factor and the general counsel, of course, makes a determination as 

to whether the case is going to—unfair labor practice case is going 

to be prosecuted has remained around 30 percent, or the low 30’s, 

mid-30’s, in that area. The settlement rate has remained very constant. 

Now, the one thing that we have done since we came here is to 

recognize that while we have always done a very good job in settling cases in the region, historically the agency did not do as well 

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once the battle lines were drawn and once the matter was about 

to go before an administrative law judge; and that is why we introduced the settlement judge concept, which has enjoyed a great deal 

of success over these past couple of years. We have used it in more 

than 200 cases and settled approximately 140 of them, and those 

would be cases which would consume weeks and, in some instances, months of both the agency’s resources—the taxpayers’, if 

you will, resources, as well as those of private parties. 

So our record historically in the settlement area has been good. 

What we have done is improve upon it by focusing upon the need 

for settlement at other stages of the process where—beyond the 

early investigative stage. 

Mr. SNOWBARGER. Is it fair to say that if the percentage of nonmeritorious claims has stayed the same and yet you have had a 

dramatic rise in the number of cases, that means you have also 

had a dramatic rise in the number of nonmeritorious cases? 

Mr. FEINSTEIN. No. The caseload itself, the number of charges 

brought before the agency, peaked in around 1980, and it came 

down somewhat steadily until 1985 and 1986. Since about 1988 it 

has stayed about level—come up a little, gone down a little, but 

stayed. So the number of cases brought before the agency has 

stayed the same. 

What has changed significantly is our staffing level. That has 

come down, so we have less staff doing the same number of cases. 

But within the cases that we have, as the chairman has indicated, 

the merit factor has remained essentially the same, the settlement 

rate has remained essentially the same; and our litigation success 

rate has remained essentially the same. The basic indicators along 

those lines have all remained essentially constant. 

Mr. GOULD. Our average productivity of an employee at the 

Board has increased in this past decade by 30 percent, and our administrative law judges who are handling this caseload, which has 

remained, as the general counsel indicated over this past decade 

constant, our staff of administrative law judges has been halved 

since the early 1980’s. We did not hire one single administrative 

law judge from 1981 through 1994. 

Mr. SNOWBARGER. Mr. Chairman, I have some other questions, 

but I think——

Mr. SHAYS. What we will do is, we have another vote and we are 

sorry that we have these interruptions. Some days we don’t, but 

today we have a lot of votes, so we will recess for about 10 to 15 

minutes. 

[Recess.] 

Mr. SNOWBARGER [presiding]. At the chairman’s suggestion, we 

are going to go ahead and get started and try to wrap up this 

round of questioning. He will be back shortly. And since I am the 

only one here, I guess I will do the questioning. 

I would like some help. Although I have been an attorney and 

have been in private practice, I have not handled a labor case, an 

NLRB case, and so I need some questions answered, kind of about 

the process, so that I can get a better handle on this. 

How does one of these cases start? Normally a worker comes in, 

I presume, and files a complaint? 

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Mr. GOULD. Any person, any person; it could be a worker, it 

could be an employer. Our rules say that any person may file a 

charge with our agency; and it would be filed in one of the regional 

offices or one of the subregional or resident offices. 

Mr. SNOWBARGER. I presume that person has to be aggrieved in 

one way or another. 

Mr. GOULD. No. The rules say, relating to the filing of a charge, 

do not provide for any kind of standing to sue requirement. A party 

may file a charge and the general counsel, through the regional director, is obliged to investigate that charge and to determine 

whether there is cause to believe that a violation of the statute exists. That is in connection with unfair labor practice cases. 

The representation cases, to which the general counsel is not a 

party, are filed through petitions which can be lodged by an individual employee, a union or employer, in the field offices, regional 

offices also. 

Mr. SNOWBARGER. Well, I guess—I really didn’t want to pursue 

this at this point, but I guess I will. 

If anybody can walk in off the street and file a complaint and we 

are finding out that 60 percent of these are nonmeritorious claims 

to begin with, is there something we need to do with our labor laws 

that would prevent someone that does not have a legitimate grievance from filing these claims? 

Mr. GOULD. Well, the difficulty, as I see it, Congressman, is that, 

you know, this question of who is aggrieved and who has standing 

to sue is really a very big area of litigation in our courts as a general matter. You know that there are many Supreme Court decisions on this issue. The whole thrust of the handling of cases at 

the regional level is informality, handling them in an expeditious 

way. We are not really involved at that stage in litigation. 

Now, the general counsel becomes a party and the respondent becomes a party if the general counsel issues a complaint. 

I would also point out——

Mr. SNOWBARGER. Let’s go on to that next stage, though. 

Mr. GOULD. Well, if I could just complete my answer, we also 

have in the regions an information officer, and an information program, which is designed to weed out complaints, charges that have 

no merit or have nothing to do with our statute. 

For instance, a lot of people are under the impression that, well, 

if they have a grievance against their employer or if the employer 

is dissatisfied with his or her employees that they can lodge a 

claim with our agency, and we have information offices at all of our 

regions which are designed to weed these out. 

Mr. SNOWBARGER. Is a complaint required to go through the information officer? 

Mr. GOULD. There is no requirement to go through the information officer. 

Mr. SNOWBARGER. So if you have already predetermined that you 

want to file a grievance——

Mr. FEINSTEIN. This was a program that we instituted in 1980, 

and I think we have had considerable success with it. It is designed 

to deal with the person calling for information or coming into the 

office wanting to know what their rights are. We get about 200,000 

such inquiries a year, only 5 percent of which result in complaints. 

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We think that that is a significant filter of nonmeritorious or irrelevant cases, and is one of the contributing factors to the growing 

complexity of our cases, because these kinds of irrelevant or inappropriate charges are filtered out. 

Mr. SNOWBARGER. And that is not included in the 60 percent that 

you talked about earlier? 

Mr. FEINSTEIN. That is correct. Those are numbers that relate to 

charges that have been filed. 

If I could amplify on one point, it seems to me that one of the 

key successes of our agency, unlike some other agencies, is the historic ability to get to that charge very quickly. Our historic time 

line has been 45 days to make that merit determination. 

Now, it requires a lot of work within that 45-day period. We 

have—obviously the case has to be staffed and investigated. We are 

not doing as well as 45 days anymore because of all of the factors 

I have mentioned, but it is still within a 7-, 8-, 9-week period. 

From the filing of that charge, the nonmeritorious charges are 

weeded out of the process, so that within a relatively short period 

of time, any charge that lacks merit is disposed of and the case is 

closed. And that is again—as I suggested earlier, I think one of the 

success stories of the agency is the ability to deal with the nonmeritorious cases quickly. 

Mr. SNOWBARGER. I would agree that is probably a success story 

for the agency. I think it may be a terrible record for the law if 

we have that many people who feel that they are entitled to make 

claims, and it turns out that they don’t have any merit. 

Mr. GOULD. Well, if I could——

Mr. SNOWBARGER. Let me get some questions in on other cases. 

I am going to run out of time—in fact, I have, and I appreciate the 

extra time by the timekeeper. 

Let’s go on to the next step. We have a claim that has been filed. 

Now, can you kind of walk me through what happens then? 

Mr. FEINSTEIN. Yes. It is assigned to an investigator who immediately contacts the party filing the charge to present evidence to 

sustain the allegations and the charge, and the parties are contacted and it is investigated. Again, we have specific time targets 

for the completion of that investigation, and now we also have a 

process of trying to prioritize that case somewhat, and the resources that we will devote immediately depends somewhat on 

that. 

A determination is made whether or not the case has merit. 

There is what we call an agenda meeting, and there is a decision 

made, that the regional director has responsibility for, as to whether the case has merit or not. If it doesn’t have merit, it is dismissed. If it does have merit, the first thing that we do is try to 

settle it. If we are unable a settle it, a complaint will issue alleging 

a violation of the act. 

Mr. SNOWBARGER. How many of these are settled before the complaint is issued? Do you have any feel for that? 

Mr. FEINSTEIN. I would—again, this would be a rough estimate; 

I don’t know. Of the cases that have merit, I would say, oh, a quarter to a third perhaps are settled. 

Mr. SHAYS. Let me just say, if some are here who can assist us 

in this, I think it might be helpful to have them testify. I mean, 

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these are questions that you shouldn’t be surprised that would be 

asked, so——

Mr. FEINSTEIN. Well, we are looking for a specific number of the 

percent of precomplaint settlements. 

Mr. SHAYS. I just want to say, there is nothing embarrassing 

about having other staff respond to these questions, so if there is 

other staff that has been sworn in that can answer these questions, 

I would be happy to have them come sit up here. You weren’t 

sworn in? 

Mr. SNOWBARGER. One of the few. 

Mr. SHAYS. Well, let me do this. Do you have a few questions 

along this line? 

Mr. SNOWBARGER. Well, they are actually trying to walk me 

through the process. It seems we get into deep holes every time we 

take a step. 

Mr. FEINSTEIN. If I could continue, a complaint would issue, and 

again, settlement efforts continue, and the complaint is set for a 

hearing before an administrative law judge. If we are not able to 

settle that case before that time, the case would proceed to a full 

hearing before an administrative law judge in which the general 

counsel represents the charging party and there is a respondent to 

reply. 

The administrative law judge hears the case and issues a decision, an administrative decision of the ALJ. That decision is appealable to the Board here in Washington. After the Board renders 

its decision, that decision can only be enforced through action in 

the Federal courts. 

Mr. SNOWBARGER. OK. Now, who pays the cost of pursuing these 

allegations—the investigation, the complaint, pursuing it through 

the ALJ? Who pays the cost of those? 

Mr. GOULD. Insofar as the—of course, insofar as our agency is involved, the taxpayer pays the cost of it. Insofar as private parties 

are concerned, they pay the cost of it. 

Mr. SNOWBARGER. OK. So we have the business paying its own 

attorney’s fees, the aggrieved party, presuming there is a valid 

grievance, he is having all of his expenses paid by the taxpayer. 

Mr. GOULD. Let me just make two additional points. One is that, 

of course, given the fact that we are an administrative agency, you 

do not have to be a lawyer to be—to appear before the agency and 

frequently charging parties are represented by lay people. And the 

other point I would like to make is that there is a statute which 

allows a party to recover attorney’s fees where it is found that the 

general counsel did not have a substantial reason for pursuing the 

matter in the first instance. 

I would like to quote from the language of the statute, ‘‘but in 

a limited number of circumstances, attorney’s fees where the person does use an attorney before the agency are recoverable.’’

Mr. SNOWBARGER. How often does that occur? 

Mr. GOULD. It occurs—I don’t know what the precise number of 

cases is. It occurs obviously in a small minority of cases, because 

generally the general counsel has a substantial reason for proceeding. 

Mr. SHAYS. Let me do this. Mr. Sanders will be recognized, and 

we are just going to come back and just have you walk us through. 

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You will be able to finish your line of questioning. We will go back 

and forth. 

Mr. Sanders, you have been very patient and you have as much 

time as you want. 

Mr. SANDERS. Thank you very much, Mr. Chairman. 

Gentlemen, it is my understanding that the Board has used more 

procedures which call for voluntary compliance. Can you tell me 

how encouraging voluntary compliance in settlements aids in the 

helping of the economy and the efficiency of the agency? In other 

words, what is the short-term financial benefit and what is the 

long-term financial benefit of encouraging voluntary settlements? 

Mr. GOULD. Well, it is enormously important because what it 

does is move our society away from litigation and lawyers, which 

are time-consuming, and impose a burden both upon the taxpayers 

and upon private parties. 

What we have done is—and we think that this is of enormous 

benefit to the economy. What we have done is to discourage litigation through our settlement judge initiative, through our bench decision initiative, and also through devising approaches toward the 

resolution of controversies which——

Mr. SANDERS. Would I be correct in assuming that expedites the 

process as well? 

Mr. GOULD. It does expedite the process as well, Congressman, 

particularly the bench decision initiative that I alluded to. 

Mr. FEINSTEIN. If I might add one other thing, we would be lost, 

really, if we did not have a settlement rate in the 90’s. Each percent in our settlement rate we have estimated saves us $2 million. 

Mr. SANDERS. Is that right? 

Mr. FEINSTEIN. Right. Each fluctuation up or down in our settle- ment rate has a $2 million consequence, either up or down. 

Mr. SANDERS. OK. Much has been made of the Board’s increased 

use of 10(j) injunctions. Can you tell me how the issuance of a 10(j) 

injunction helps in resolving a labor dispute? 

Mr. GOULD. Well, it helps because so many of the cases where 

we speak about—talk about the possibility of 10(j) result in voluntary settlements where the parties don’t even have to use our 

normal unfair labor practice machinery, let alone the judiciary. 

The rate of settlement, as well as success for the Board, in 10(j) 

cases in Federal district court is very high. We either win or settle 

in the high 80’s or 90 percent of the cases in which we pursue 10(j). 

Of course, what 10(j) does by producing a settlement in those contexts is to really make unnecessary the very arduous and time-consuming process that otherwise needs to be pursued, which in many 

instances would take 3 or 4 years of litigation. 10(j) moves very 

quickly compared to normal litigation and thus is a savings to both 

the parties and the judiciary. 

Mr. SANDERS. Thank you. I apologize, I have been in and out, 

and if you have answered this question, just tell me; all right? 

It is no secret that business interests have accused you of being 

biased in favor of labor at the expense of business. Do you think—

is it your judgment that that is a fair charge and how would you 

respond? 

In other words, presumably your job is to be fair and you are 

being attacked for not being fair. Can you respond to that? 

123

Mr. GOULD. I would say two things, Congressman. One is that, 

in the first instance, I don’t think it is accurate to say business interests have attacked us. Some business interests, those who, I 

think, are recidivist employers, the rogue employers who do not believe in compliance with our statute. 

Many business interests have spoken favorably, supported us in 

the appropriations process and have said that while they disagree 

with some of our approaches to the statute, they believe that we 

have functioned in a responsible manner. But I think that the proof 

of the pudding lies in the fact that we have acted as an impartial 

arbiter, we have reached out to representatives of both labor and 

management. 

I mentioned my advisory panel, which is composed equally of 

union and employer representatives. We have facilitated cooperative initiatives through our interpretations of section 8(a)2. I think 

that the hallmark of my chairmanship has been a balanced approach to labor and management which takes into account the competing interests of both. 

Mr. FEINSTEIN. If I may, Congressman, in terms of the operation 

of the general counsel’s office, we have a number of means of trying 

to assure neutrality and evenhanded treatment of cases. We do an 

extensive quality review in each of our regional offices each year 

in which actual files are examined to see the thoroughness and the 

completeness of the investigations and that all of the relevant procedures and necessary procedures are employed. 

The statute itself, I think, builds in some measure of neutrality, 

and that is that any Board decision, as I mentioned before, has to 

be enforced in the courts. Our success rate in the courts has held 

steady. It is consistent with past success rates, another measure, 

I believe, of the evenhanded record of the current administration 

of the agency. 

We also have an appeals process whereby the decisions of the regional offices are appealable to Washington for further or second 

level of review, if the party so desires it. Our rate of appeals, of 

the acceptance of appeals, has also stayed consistent. 

Mr. SANDERS. Do you think the evidence is pretty clear that 

based on the work that you have done and what you have accomplished, you are not being prejudiced? 

Mr. FEINSTEIN. Yes. I just wanted to note these specific measures 

and what we have to gauge them. 

Mr. SANDERS. Let me just ask another question, and I should 

give you a little background and tell you that I am very unhappy 

with the current state of labor law in America. I think it—and that 

is obviously not your problem. Your problem and your job is to enforce the existing law. 

I think, in fact—in terms of the needs of working people in this 

country who want to join unions, it is in fact very difficult for them 

to do so. Maybe you would comment on this scenario. 

I have talked to workers who have been active in trying to form 

a union, and they tell us that the people who are working hard to 

form a union are fired. They tell us that sometimes after they negotiate a first contract, the company refuses to sit down and in good 

faith negotiate, and people then give up in a year or two. And there 

are some people who are now telling me that in order to form a 

124

union, they don’t even want to go through the NLRB process because it just takes so long, that you are understaffed, and they 

think that all of the appeals that the well-funded companies have 

make it almost impossible, if you can believe this, in the United 

States of America to form a union. 

You know, for example, in Canada, if 50 percent of the workers 

in a shop, plus one, sign a card wanting a union, they have a 

union. That is the end of the process. And it is my understanding 

that labor law in the United States is far more backward, far more 

antiworker than it is in any country, compared to any country in 

Europe or Canada. 

Do some of those workers have a concern? 

Mr. GOULD. Well, I think that since the 1970’s, deficiencies in 

our labor law, as written, have become more apparent. The ability 

to delay our processes exists in the procedures. The main tool in 

appropriate circumstances that we have is section 10(j) where, in 

appropriate circumstances, we can effectively combat the problem 

of delay. But the situations that you refer to—the dismissal of employees, the inability to negotiate a collective bargaining agreement 

in a fledgling relationship—is a very difficult one and one which in 

some instances highlights the deficiencies of our law. I have long 

advocated reform of our statute, which would overcome some of 

these problems. 

Mr. SANDERS. Mr. Snowbarger, a moment ago, wanted you to run 

through a scenario, and that is not a bad way to learn information, 

but let me pose another problem. Let us just say Mr. Snowbarger 

was a militant worker who wanted to form a union. 

Mr. SNOWBARGER. We do have fantasies around here, don’t we? 

Mr. SANDLER. And I was an employer who had a lot of money, 

was prepared to pay big bucks for some antilabor consultant, which 

is going on all over the country, and I fired him, and his union said 

that was unfair. How long could I stall that out to get him his job 

back and get him his compensation if he did what an American citizen has the constitutional right to do? 

Mr. GOULD. Well, on the order of 3 years or more, it takes—we 

have described the various steps of this process. You file a charge, 

you investigate it, you issue a complaint, you hold a hearing, you 

take an appeal from the decision by the administrative law judge, 

you come here to Washington a year or so, or a couple of years 

later, and then you go to the circuit courts of appeals. Then a petition for——

Mr. SANDERS. So if Mr. Snowbarger is a worker earning $7 or $8 

an hour and he forms a union, or tries to, and he is fired, it could 

take—and I have all kinds of resources and lawyers behind me—

it could take him 3 years before he got his job back or was compensated? 

Mr. SNOWBARGER. Will the gentleman yield? Who would be paying my legal costs at that point in time? 

Mr. GOULD. You would not need to, if you were a worker, 

you——

Mr. SNOWBARGER. So what we have is this rigid——

Mr. SANDERS. Let him answer the question. 

Mr. SHAYS. Gentlemen, gentlemen, excuse me, excuse me. This 

committee has always allowed everyone to ask questions and alVerDate jul 14 2003 13:37 Jan 20, 2004 Jkt 010199 PO 00000 Frm 00128 Fmt 6633 Sfmt 6602 W:\DISC\46442 46442
125

ways allowed witnesses to answer. You are on your 11th minute 

and we have to go through 15. 

I do think he should answer the question, but I will take control. 

So the question you asked was——

Mr. SNOWBARGER. Well, we have talked about the large company 

with the large legal budget and all of this kind of thing. Who is 

paying my costs as the supposedly aggrieved employee? 

Mr. GOULD. You would be responsible for your costs, or if you 

had a union that was willing to take up your cause, it might pay 

for the cost. It would depend on the individual circumstances. 

Mr. SNOWBARGER. OK. 

Mr. SANDERS. All right. But my only point was that if you have somebody who is trying to get by on $7 or $8 an hour, who loses 

his or her job for a period of years, that person is at a real disadvantage; and every employer knows it. I mean, I have seen, I 

have heard of cases where even after a worker has actually managed to form a union, the company refuses to negotiate with them, 

and workers get beaten down and they finally give up. 

So I would say that it seems to me, based on my knowledge of 

the situation, that we need sweeping labor law reform. My impression is that Mr. Gould and Mr. Feinstein and the others are doing 

the best they can with the existing law, but the truth of the matter 

is, the law, in my view, is very prejudiced toward workers in this 

country, very much in favor of those people who have the resources, the financial resources, who are antiunion; and the result—the proof is in the pudding, the proof is that time after time, 

workers who are trying to form unions are unable to do so. Hopefully, we are seeing some changes in that regard. 

Mr. GOULD. If I may, just in response to Congressman 

Snowbarger again, the—I said that you would pay your own costs 

and fees, and you would if you had your own lawyer or if the union 

became your lawyer. If the general counsel issues a complaint on 

behalf of a union or an employer, the general counsel proceeds with 

the matter; and the charging party, be it an employer or a union, 

would have to find some way, if they wanted to use counsel, to pay 

their own costs. 

Mr. FEINSTEIN. I want to mention that about one-quarter of the 

cases before the agency are cases that are initiated by employers, 

where the employer is the charging party. 

Mr. SANDERS. So here I am, Mr. Snowbarger, trying to protect 

your rights to go out and form a union as the low-wage worker. 

You may lose the next election, so you should be more sympathetic 

with what we are trying to do. 

Mr. SNOWBARGER. Very frankly, to the gentleman from Vermont, 

I find it easier to get a job in a right-to-work State than I do in 

a labor State anyway, so I will stay in Kansas. 

Mr. SANDERS. Some of us will try to make legislation available 

so you do have the right to do that. 

Mr. SNOWBARGER. I do agree with the gentleman that we need 

major revisions in the labor law. 

Mr. SANDERS. But you are not going to support my legislation 

probably. OK, thank you very much. 

Mr. SHAYS. Mr. Barrett, do you have any questions? 

Mr. BARRETT. No questions, Mr. Chairman. 

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Mr. SHAYS. OK. I have a general bias that when Republicans are 

in control, we walk in the moccasins of people who are trying to 

run a business and trying to—trying to make a payroll, and so we 

tend to be a little more sympathetic to that view, because those are 

the moccasins we walk in; and when Democrats were in control, 

they just seemed to have a little more sense of what some workers, 

particularly in some areas, they have really struggled in. 

And so I tend to think, when Republicans are in, they have a 

slant one way, and when Democrats are in, they have a slant the 

other way. I think that is unavoidable, based on the experiences we 

have in our lifetime. 

Mr. Feinstein, how do you—let me back up and say, you have immense powers, because those cases you choose not to move as 

quickly on, those cases you choose not to prosecute, you in a sense 

have become a judge, as most prosecutors have, so I know you 

know that is an immense power. 

How do you get to make sure that you are trying to walk in 

someone else’s moccasins and be as fair as possible? What process 

do you try to instill in your staff? 

Mr. FEINSTEIN. Well, I think that is obviously an important question, and I know the agency has historically—the general counsels 

through the years have taken very seriously, for exactly the reason 

you have suggested, that the—that responsibility to make that initial determination as to whether a case has merit or not. 

We have, as I began to suggest, very just processes, systems, if 

you will, within the agency to try to assure the quality of that decision, to try to assure the consistency and that that decision is 

based on all of the available facts, and that that decision is indeed 

the right decision. We have a process of reviewing files in all of our 

regional offices on an annual basis. 

Mr. SHAYS. How many regional offices do you have? 

Mr. FEINSTEIN. Thirty-three regional offices and subregional offices. Some of those have satellite offices so that there is a total of 

52. We have random audits of files conducted by people who have 

expertise in that area in each of these offices to get a sense of what 

is happening in those cases and to make sure that the offices are 

following——

Mr. SHAYS. If you reject a case, dismiss a case, then that can go 

directly to the courts? 

Mr. FEINSTEIN. No. If an individual case is dismissed—and that 

was going to be the next thing I mentioned—there is a right of appeal to our Office of Appeals here in Washington and that case gets 

a de novo review. We have people who have developed expertise in 

that area. 

Mr. SHAYS. And your offices are out of——

Mr. FEINSTEIN. The general counsel’s office gives a thorough review of that case and makes a determination either to sustain the 

decision in the region, to dismiss the charge, or they can overturn 

the decision in the region. As I say, we consistently have from 3 

to 5 percent reversal rate in that appeals process. 

We also, again, as I have suggested, have another significant 

check on the agency’s deliberations: how we fare in litigation both 

before administrative law judges and ultimately in the courts. If 

the Board has had to decide the case, that case is appealable, in 

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effect, into the Federal courts, and our success rate in that litigation, I think is another important of the ability that we have to 

oversee the efficacy, the appropriateness of the decisions that are 

being made. 

We also—as you alluded to, we measure the number of cases 

where there is merit and where there isn’t merit to get some sense 

of the consistency of those kinds of determinations. 

All of these suggest different ways that we have tried to do the 

best we possibly can to assure that that original decision on whether or not to go on a case is the right decision, is the appropriate 

decision. 

Mr. SHAYS. Now, when you take over from a previous administration that happens to have been the other party—in this case, it 

would have been the Bush administration, they probably had an 

emphasis that went in one direction. 

Where did you change the emphasis in terms of the kinds of 

cases you wanted to see move more quickly and those that you 

didn’t? 

Mr. FEINSTEIN. First of all, the terms of general counsels don’t 

directly coincide with administrations. We serve a fixed 4-year 

term, so the previous general counsel, who was nominated by 

President Bush, served a year-and-a-half into the——

Mr. SHAYS. But then there was a change? 

Mr. FEINSTEIN. Right. And I am sure that there are differences 

in approach. Every general counsel brings——

Mr. SHAYS. There was criticism by labor that certain cases 

weren’t moving along. I have to believe that—were you the next appointment from the Bush administration? 

Mr. FEINSTEIN. I was appointed by President Clinton. 

Mr. SHAYS. Right. So you were the first appointment done by the 

Clinton administration? 

Mr. FEINSTEIN. Yes. 

Mr. SHAYS. So you were from this direction to this direction, but, 

there is nothing wrong with that. I just want to know, when you 

came in, did you agree with certain criticisms that said, yes, we 

weren’t paying enough attention here and we should do something 

here; or did you just carry on just like the previous administration 

had done? 

Mr. FEINSTEIN. Well, my emphasis was certain areas of priority 

concern. The first one was to be more consistent in our ability to 

get to an election after the filing of a petition so that we would 

have a more uniform record in that area. Another area of priority 

concern was the uniform deployment of appropriate injunctive relief. 

What we had found—one of the things that really stood out to 

me—is that in seeking injunctive relief about a quarter of our offices, maybe eight or nine of our regional offices, were doing 70 or 

80 percent of the injunction cases, while the rest of the offices were 

doing little, if any, injunction work. 

So we decided—we determined that there was a lack of consistency among the offices, and so what we did was, we put together 

a manual based on documents that had long been the documents 

that were informing or processing in this area. We did training, we 

restructured our offices a little to make sure that injunctive relief 

128

was being considered in all of the regions, not just in a few; and 

that, I think, is the reason that we sought increased utilization. 

What happened was not so much a change of approach, it was 

the fact, in terms of the standards under which we would seek injunctive relief, but we had offices that for various reasons had not 

been considering that. 

We also made an emphasis on quality, what could we do to improve quality? 

Finally, we implemented the program of impact analysis, but 

that was a response to the funding situation. As our backlogs were 

going up, we got concerned. 

Mr. SHAYS. Let me get to that point. When you have a lead 

case—you basically have like seven or eight cases that are similar, 

you are not quite sure of the outcome—do you take one of those 

cases and move it forward to the Board—tell me what a ‘‘lead case’’ 

means. 

Mr. FEINSTEIN. I am not sure what you are referring to. 

Mr. GOULD. Mr. Chairman, you are confusing his role with mine. 

Mr. SHAYS. OK. Let me say this—I don’t want you to answer yet. 

Just describe to me the whole issue—I am going to make an assumption, Mr. Gould, that you have a number of cases that are the 

same, and you group them together; but I will come back and have 

you explain if that is right or not. Just explain to me what ‘‘impact 

analysis’’ actually is. 

Mr. FEINSTEIN. Impact analysis was largely a response to the 

growing backlogs. We wanted to make sure—we wanted to make 

sure that the cases that were taking longer than the target time 

for that case were the cases that were perhaps the least time sensitive. Impact analysis is an effort to say, there are some cases, 

clearly, where timeliness is of greater importance than others; let 

us make sure we are focusing resources that accomplish a more 

timely result in those kinds of cases. 

There are certain cases which affect far more people than other 

cases. There are certain cases that are much more critical to the 

process of collective bargaining itself than others. 

Mr. SHAYS. Those would set trends for other decisions? 

Mr. FEINSTEIN. No, not necessarily set trends. There is more a 

notion of the effect, the real-world effect, if you will, of the case. 

We could have a case in which the determination of the case determines the rights of 1,000 employees or more. 

Mr. SHAYS. Do you have categories 1, 2 and 3? 

Mr. FEINSTEIN. Right. 

Mr. SHAYS. Now, which gets the highest priority? 

Mr. FEINSTEIN. Category 3. 

Mr. SHAYS. And tell me what fits into 3. 

Mr. FEINSTEIN. Well, they are cases generally that have—that affect the most people, that are most central to the process. An example, as I started to say, might be a case in which the rights of 1,000 

people are at stake; or it might be a violence case in which there 

is some violence on a picket line that is occurring, and a determination is made. It is important that we get to this case before we get 

to a case, for example, where there is collective bargaining ongoing, 

and someone is seeking information, and one party feels that they 

haven’t been provided enough information. Rather than saying, we 

129

are going to get to both of those cases at the same time, we are 

going to say, no, we need to get to the former case more quickly. 

It took us about a year for a task force of career people throughout the agency making a determination as to what were the kinds 

of decisions to go into making these kinds of priority assessments, 

and then once the assessment was made, how we could focus the 

resources. 

Another point to this process is, there are certain kinds of cases 

where we wanted to utilize different kinds of investigative techniques, questionnaires or telephone affidavits or other investigative 

techniques that might be appropriate to a case of that nature, but 

not all cases. So we wanted to be able to make those kinds of differentiations between cases as well. 

Mr. SHAYS. I am going to finish with just these two questions, 

but just a quick answer to this. 

A timely case is a category three still? Does category three get 

your highest attention? 

Mr. FEINSTEIN. What we have done is adjusted the time target. 

The time target for a category three case is 7 weeks; the time target for a category two case is 11 weeks, and the time target for a 

category one case is 15 weeks. 

Mr. SHAYS. So whether it is for when you render a decision to 

bring it to an administrative judge——

Mr. FEINSTEIN. No, to the time we complete the investigation and 

make the determination as to whether the case has merit and to 

issue a complaint, if appropriate, or to dismiss. 

Mr. SHAYS. OK. Just since I raised it, the whole issue of the lead 

case, and then I am going to—Mr. Kucinich, do you have questions 

that you would like to ask? We are going to move on to the next 

panel, if we don’t, in just a second. 

Mr. Barrett, just 1 second. 

Since I threw out ‘‘lead case’’ as an issue, tell me the concept of 

‘‘lead case.’’

Mr. GOULD. Mr. Chairman, what we try to do where there are 

a number of cases congregated on a particular issue, we try to select a case or a few cases which we think, when we get the answer 

to it, will govern a number of other cases that are pending with us, 

and that is ‘‘lead case.’’

Mr. SHAYS. OK. What would be the basis on how you would select the criteria of what makes—how do you group it together? 

What would be the basis for that? 

Mr. GOULD. You would group it together where the case involved 

a theory that was very closely related or a charge that was very 

closely related subject matter-wise. 

Mr. SHAYS. How would you decide which case to take? 

Mr. GOULD. Which case you would take as a lead case? 

Mr. SHAYS. Yes, of the seven or six or five? 

Mr. GOULD. Well, I think the one that would probably present 

the full array of issues which would govern the cases that will follow. 

You might have—for instance, we have had these Beck cases and 

there are a number of issues that are posed in these cases, and 

what you would try to do is try to find a case that would raise most 

or all of the important issues, and you would look at—you would 

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survey when other cases were pending with you. You might pick 

one or two or three or four cases that would—the resolution of 

which would spring all of these other cases loose automatically. 

You would know, once you have the answer to this one case, or two 

or three, that you would have the answer in connection with a wide 

variety of others that would follow in its wake. 

Mr. SHAYS. Thank you. 

Let me tell you the Chair’s intention. We are already at 1:35. I 

am going to go to Mr. Barrett. I know that Mr. Snowbarger has a 

number of questions, and I am happy to have that proceed, walking 

us through this issue. But then I want to feel that we then come 

to the other side and have some dialog there. 

We do have two other panels, and I am getting a little concerned 

about that, so I would just share that with the Members. Mr. 

Snowbarger has been here the whole time, so obviously he has 

been asking more questions. 

Mr. Barrett. 

Mr. BARRETT. Thank you, Mr. Chairman. I apologize to the panel 

for missing the testimony and not hearing some of the issues that 

have been touched on. 

I would like to get a better feel for the usefulness of the 10(j) proceeding and how it is helpful. I know it has been under some criticism, but how does it help and if you didn’t have that, too, what 

would be left for the parties? 

Mr. GOULD. Well, the classic kinds of cases that 10(j) would be 

applicable to—and this is not an example which is exclusive—

would be where an employer has dismissed a large number of employees or has acted in—has engaged in misconduct toward those 

employees, where a union has engaged in violent conduct or other 

forms of misconduct vis-a-vis, the employer. And where a violation 

could be established, we could say that there is reasonable cause 

to believe, as most of the circuits have said, that there is a violation and where the passage of time through our normal administrative process would erode the fashioning of an effective remedy. 

In the case of employees who are dismissed, if we go through this 

process, which we described earlier, where a charge is filed, a complaint is issued and so forth and so on, when you get to the end 

of the hearing, it might be difficult to even find the employees who 

are entitled to recover under the status, let alone to compensate 

them. 

So what you are able to do, through section 10(j), which again 

is applicable to both union and employer misconduct, is to get into 

Federal district court and obtain temporary injunctive relief while 

the administrative process proceeds. 

Now, the other, I think, major point that has to be made is that 

in many of these cases where 10(j) is used or there exists the prospect of 10(j), what we have done is to enhance our processes where 

the parties are more likely and more able to voluntarily resolve 

their differences with one another. We have had settlements in a 

very high number of instances, a substantial number of instances 

where we have resorted to 10(j) in the Federal courts. And the reason is reported to me, as I go around the country, that the prospect 

of 10(j) has produced the same result in many instances. 

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So two major results: expediting the process, and making it more 

likely a voluntary resolution without the resort which would otherwise lead to arduous, time-consuming, expensive litigation. 

Mr. BARRETT. In a typical case, does the party seeking the relief 

come to you, or is it something that you typically would say it is 

appropriate? 

Mr. GOULD. Well, generally what happens is that the charge is 

filed in the region and the regional director, usually as a result of 

a request by a charging party, but it need not be that way, makes 

a recommendation to the general counsel. The general counsel then 

determines whether the general counsel will make a recommendation to us, and then on the basis of the papers submitted by the 

general counsel and by the other parties, the Board votes as to 

whether the Board will authorize the general counsel to go into 

Federal district court to obtain injunctive relief. 

Mr. FEINSTEIN. It can happen, and it typically does happen, either way. The parties can request it, but that is not necessarily the 

only circumstance. There are many instances in which the parties 

request it, and it is our view that injunctive relief is not appropriate. There are other instances in which the parties do not request it, but in our analysis of the case, we make a determination 

that injunctive relief would be appropriate. 

Mr. GOULD. As you point out, Congressman, this is the way the 

practice has evolved over the years long before we got to Washington. You won’t find this process described in section 10(j) itself. 

Mr. BARRETT. I am assuming that it is used more often on behalf 

of employees; is that correct? 

Mr. GOULD. That is correct. 

Mr. FEINSTEIN. I might add, we have another provision in the 

act, which is section 10(l), in which there is no discretion. If there 

is a certain kind of a violation alleged, then we are required to seek 

injunctive relief, and those are instances where employers have 

been charged. They largely have to do with a secondary pressure, 

inappropriate pressures being brought by unions in a labor dispute. 

Mr. BARRETT. I know there has been some criticism about the 

backlogs at the regional level. How has Congress contributed to 

this? Is there something that we can do to help with this? 

Mr. GOULD. Well, I think that the major thing that Congress can 

do to help the problem of the backlog at the regional level is to provide us with an adequate budget along the lines of what the President has requested. Most of our work is staff work, it is employees. 

We need people to be able to investigate and, where necessary, 

where settlement or withdrawal doesn’t come about, or where we 

don’t find merit, to litigate. And in order to have people, we must 

have an adequate budget, and I think that that is the major way 

in which the Congress can be of help in connection with the backlog in the field. 

Mr. BARRETT. What about the case tracking, automatic case 

tracking? Is that helping, or is that helping to reduce the backlog, 

or what is the purpose of that? 

Mr. GOULD. The case tracking system is designed to allow us to 

be able to identify particular kinds of cases, to know what it is that 

we have before us. We really, at this stage, don’t know whether a 

particular case involves, as it might, an employee protest over 

132

working conditions, or whether it might involve alleged discrimination of union activity. We can, I think more effectively, discharge 

our responsibilities if we know what is coming, what is coming before us. 

Mr. FEINSTEIN. If I could add to that as well, I think the short 

answer is yes. The case tracking system that we are seeking to implement to automate our case tracking process will, in addition to 

what the chairman has indicated, affect the thoroughness of our 

processing; it will also make us more efficient. It is a more efficient 

way of processing cases. So that too could indeed contribute to getting our case handling load down. 

Mr. BARRETT. You have not had an automatic tracking system 

before now? 

Mr. FEINSTEIN. We do have one, but it is one that was established 15 or 20 years ago that is quite antiquated by today’s standards. We have significantly upgraded, of course; we have become 

computerized, and we are now into the second or third year of a 

process of switching over to a new automated case tracking system 

which will be light-years ahead of the system that we currently employ. 

Mr. BARRETT. No further questions. 

Mr. SHAYS. Mr. Kucinich, do you have any questions? 

Mr. KUCINICH. No questions. 

Mr. SHAYS. We are going to have a vote fairly soon. We have 10 

minutes, and then being that you have been a faithful person here 

the whole time, you have 10 minutes, if you want to go. 

Mr. SNOWBARGER. Thank you, Mr. Chairman. With the help of 

the panel, we will get through this quickly, if you could keep your 

answers relatively brief. 

Going back to the process here, I presume that once a case has 

been completed, the administrative law judge makes his decision 

and then there are consequences, presuming that the person that 

you have—who had the complaint filed against them, I presume 

there are consequences, I presume back wages to employees? 

Mr. GOULD. There is no immediate consequence of the administrative law judge decision unless the parties agree to be bound by 

the decision at that particular point. The law has an obligation to 

fashion a decision in accordance with the law as it is written and 

to provide recommended relief. But the order is not self-enforcing, 

nor is our order self-enforcing. 

Mr. SNOWBARGER. What you mean is that they would always 

have the right to appeal that decision? 

Mr. GOULD. That is correct. 

Mr. SNOWBARGER. But if they presumed that they wanted to stop 

at a certain—at your level, then there are some——

Mr. GOULD. In 30 percent of the cases, exceptions are not taken 

to administrative law judge decisions. The parties decide right then 

and there to either abide by the decision or resolve their differences 

in some other way. 

Mr. SNOWBARGER. Again, typical of the decision, what are the 

consequences? 

Mr. FEINSTEIN. Well, of course it depends on the nature of the 

case. If what the case is about is that some unfair bargaining tactics have been employed and one party has not been bargaining 

133

fairly, the remedy would be an order to the recalcitrant party to 

commence bargaining fairly. So some of the remedies are in the nature of an order to simply stop doing what you are doing and do 

it correctly. 

There are situations in which discrimination has been alleged 

where the remedy would be to cease the discrimination and to compensate—not to punish, but to compensate—to punish the wrongdoer, but to compensate the person who has been wronged for that 

wrongdoing. Typically, if a person, for example, is unlawfully discharged, then they would be entitled to back pay, offset by any 

earnings that they have had in the meantime to compensate that 

person. 

Mr. GOULD. Or that they would have obtained with reasonable 

diligence; both interim earnings and that which they would have 

obtained with reasonable diligence are deducted from the back pay. 

Mr. SNOWBARGER. All right. Let us take that as an example. I 

realize that we can’t get into all of the examples or all the different 

kinds of remedies. 

Let us say that we have a case where someone says they have 

been wrongfully discharged—and we have talked about what the 

consequences are to the employer if that turns out to be the case. 

What are the consequences to the employee if it is determined that 

the employer was within his rights to fire in that situation? 

Mr. GOULD. The employee—if the case is dismissed, the employee 

will not be able to obtain any form of relief requested. 

Mr. SNOWBARGER. But is there any consequence to it for putting 

an employer through a claim that was not meritorious? 

Mr. GOULD. Well, if the general counsel determines to issue a 

complaint, there is a statute; and we made some brief reference to 

this before, the Equal Access to Justice Act, which allows a party 

to recover against us, the U.S. Government, if it has been determined that the general counsel undertook the case without a reasonable basis for so doing. 

Mr. SNOWBARGER. Is that something that the ALJ can take up 

on their own, or does that have to be brought before them by one 

of the parties? 

Mr. GOULD. That would be brought before them by one of the 

parties. There have been 278 instances of that since this was enacted in the early 1980’s, and 100 applications of those cases have 

come before the Court of Appeals. And these applications before the 

Board have resulted in awards totaling $897,000, and those before 

the courts have resulted in 16 awards, totaling $390,000. 

Mr. FEINSTEIN. That is over the last 17 or 18 years. 

Mr. SNOWBARGER. Let me shift the line of questioning. 

Are you familiar with the term ‘‘salting’’? 

Mr. GOULD. Yes. 

Mr. SNOWBARGER. Could you just again briefly tell me what your 

understanding is of that term? 

Mr. GOULD. Well, ‘‘salting’’ is generally applied—and I must say 

it is a modern term; it is a concept that has existed for many years, 

but it is a modern term because it appears as though some unions 

are using this technique with greater frequency. It involves the attempt by the union to use somebody who is paid by them, or assisted by them in some cases, inside a particular establishment, to 

134

recruit employees and to get them to affiliate in the union so that 

there will be a collective bargaining relationship. 

Mr. SNOWBARGER. I would agree. That is my understanding of 

what the concept means. 

In the context of backlogs, insufficient staff to handle all the 

workload, 60 percent of these cases being nonmeritorious, these 

being all of your cases, not just the ones that might be salting—

well, maybe I ought to ask. What percentage of your cases would 

fall in that category? 

Mr. FEINSTEIN. What percent fall within the salting category? 

Mr. SNOWBARGER. Right. 

Mr. FEINSTEIN. We are not able with our current tracking system 

to differentiate cases by allegation. Also, most salting cases are not 

pure salting cases; there are always ones that are mixed. Under 

our new tracking system, that is precisely the kind of determination that we will be able to make. 

Mr. GOULD. We are able to give you an answer to that from the 

Board’s perspective. 

Mr. FEINSTEIN. And we have surveyed the regions in terms of 

trying to get some sense of it, and there are certain regions where 

we have seen hundreds of such cases. The percentage. Nationwide 

I don’t think we have ever been able to get. 

Mr. SNOWBARGER. Let me followup on that. You say that this 

perhaps is a regional phenomenon? 

Mr. FEINSTEIN. We certainly have seen more of the salting kinds 

of cases in certain regions than others, but I would say it is probably—there are probably some salting cases in every region, but 

there is certainly a stronger concentration in some than in others. 

Mr. GOULD. In fiscal year 1995, according to our operations management department, 358 cases were filed in the region; in fiscal 

year 1996, 578 cases were filed in the region; and in fiscal year 

1997, up to June 6 of this year, 406 cases were filed in the region. 

That is a total of 1,342 cases. 

We, I think, had filed with us during that time about 120,000 

charges, so that is 1,342, of about 120,000. In Washington we see 

about 1,000 cases a year, a little under 1,000 cases a year. We have 

had 75 salting cases in Washington that we have been able to identify; 44 have issued as Board decisions, 41 unfair labor practice 

cases, 3 representation cases. I think that that is over approximately a 4- to 5-year period. 

There are 24 salting cases pending before our agency now. 

Mr. SNOWBARGER. Before the Board? 

Mr. GOULD. Before the Board. Before the Board in Washington. 

Mr. SNOWBARGER. Let me just make a couple of observations and 

ask you to respond. 

No. 1, the figures that you just gave me—358 in 1995, 578 in 

1996, and in the first 8 months or something of that fiscal year, 

or even—are we doing that by fiscal year? 

Mr. GOULD. Yes. 

Mr. SNOWBARGER. So the first 8 months of this year, we have 

406, so we are probably up around 700 or something of that nature. 

I mean, I know they don’t fall in any given year all the way 

through. 

Mr. GOULD. With about 4 months to go in the year——

135

Mr. SNOWBARGER. But, in theory, we have another increase, a 

significant increase in that kind of case. 

Mr. GOULD. I am not a mathematician, but it looks as though we 

will come out along the lines of what we came out with in fiscal 

year 1996. 

Mr. FEINSTEIN. If I may add, too, these figures are based on a 

survey that we have done basically in response to congressional inquiries; and I just want to——

Mr. SNOWBARGER. My other observation is this, and I would ask 

your reflections on this. 

I was given a statement that was entered into the record earlier 

that just talked about six different companies, and I only have 

these figures that I am going to give you for three of those six companies. One of the companies had 14 unfair labor charges filed 

against it; in other words, they were either dismissed or they won 

it at the ALJ or whatever. Another company is 47 out of 48. Another company was 80 out of 80. 

As you were tracking these cases, does it begin to look suspicious 

that some of these companies may be targeted for these charges 

and unfairly targeted? 

Mr. FEINSTEIN. Well, again, our tracking system hopefully will 

get more sophisticated. 

Mr. SNOWBARGER. Well, certainly you would have it by companies—I mean, by——

Mr. FEINSTEIN. Right. Let me suggest that these cases of course 

are investigated region by region. If the region has reason to suggest that charges that are being filed are frivolous, that they are 

based on perjured testimony, that they are unreliable in any way, 

shape or form, that certainly is accounted for in the investigation. 

Indeed, if we have good evidence of perjury or malicious prosecution, we can and have, in certain instances, referred that to the 

Justice Department for appropriate action. 

It is not a perfect system, but in these kinds of repeated filings 

of charges that are frivolous, that are totally without merit, that 

are baseless, there are ways in which the regions can and do account for that in their investigation of the cases. The bottom line 

is, we are required by statute to take each and every one of those 

charges and investigate them and make the merit determination. 

We don’t really have an alternative. We can’t simply say, we are 

tired of these kinds of cases; we are not going to investigate them 

anymore, we are not going to consider them. That would require 

an act of Congress. 

Mr. SNOWBARGER. Should you have that authority? 

Mr. FEINSTEIN. Should we have the authority not to investigate 

a case? 

Mr. SNOWBARGER. Yes. 

Mr. FEINSTEIN. You are asking me a policy question? 

Mr. SNOWBARGER. Well, you just said that you would need a law 

to change your responsibilities. I am asking, should you have that 

authority to make the decision if you want to pursue a certain 

number of cases, and perhaps these are cases that you don’t want 

to pursue. 

Mr. FEINSTEIN. Right. Well, what I tend to say when asked a policy question is that for 17 long, wonderful years I worked here at 

136

Congress, and it was my job to help answer those kinds of questions. But, since I have become an enforcer, I try to shy away from 

those kinds of policy issues. 

I would simply suggest——

Mr. SNOWBARGER. Well, then let me ask Mr. Gould, because I notice in several pieces of information I have had from him he says, 

‘‘such as I have advocated,’’ and on and on. 

Mr. FEINSTEIN. I am sure that the chairman would have something to say. But I would suggest that in any kind of situation like 

that, many of these salting cases are merit cases. They are cases 

in which the rights of employees are being denied because of their 

union affiliation; and any kind of an adjustment would have to, in 

my view, acknowledge the fact that in any kind of a statutory 

scheme you are going to have meritorious cases and nonmeritorious 

cases, and you have to have some means of being able to separate 

the two. 

Mr. SNOWBARGER. Sure. I understand that, and I guess what I 

am trying to suggest in my line of questioning is that when there 

is a meritorious case, there are consequences to that case, to the 

person who brought it or to the person who is charged. 

When there is a nonmeritorious case that is pursued and the aggrieved party is the loser, there is no consequence to that party; 

and perhaps there ought to be a way to weed those cases out, either changing your authority or changing the consequences to those 

who file nonmeritorious cases. 

Thank you, Mr. Chairman. 

Mr. SHAYS. We are going to go to the next panel. We think we 

are going to have a vote right away, and I was just thinking that 

we might just have a break, because we are going to have two 

votes at once. 

Let me conclude by saying, Mr. Gould and Mr. Feinstein, is there 

any point that you want to make before we go to the next panel? 

Mr. GOULD. Well, the only point I would like to make, Mr. Chairman, is one of the points that I started with, and that is, we have 

taken—we have read your statement about our work on GPRA and 

we regard this as a work in progress. We are really learning, and 

we want to consult with you, learn from you, and work with you 

toward providing a more effective statement. 

I think that we have undertaken a wide variety of initiatives 

that are designed to make our agency a more effective one. I am 

very proud of the record that we have obtained over these past 31⁄2

years as an impartial, neutral and effective agency in this world of 

labor law. 

We look forward to working with you and to devising a more effective statement to bring ourselves into full compliance with what 

you deem to be the requirements of the statute; and I thank you 

very much, Mr. Chairman, for the opportunity to be here. 

Mr. SHAYS. Let me just say, it is good to have you here. We really haven’t had enough interaction with your agency in particular 

and labor issues in general. We have been focused on HHS and 

Education and Labor and HUD issues, so it is important that we 

get a little more involved. Some of our questions were a little more 

generic; it is good to have you here. 

137

We also are learning how we make the Results Act work, but it 

is more than just a statement, it is really a whole way of evaluating your operation; it is helpful to you and it will be helpful to us. 

Mr. GOULD. I recognize that, and I hope you will also recognize 

how active we have been in employing strategies which are designed to make our agency effective and efficient and to accomplish 

our objective, because I think in this regard, no Board has undertaken more and more that is effective in this regard than what we 

have done these past 31⁄2 years. 

Mr. SHAYS. We have seen that, and we do appreciate it. Thank 

you for it. 

Mr. FEINSTEIN. Mr. Chairman, I would just simply add, I hear 

the bells, simply associate myself with the comments of the chairman. We do find this a very useful process. We believe in the 

GPRA, and we certainly understand the need and the benefit that 

we can get through consultation with you all and GAO and others 

who are interested, and we certainly look forward to that process. 

Mr. SHAYS. I thank you both very much, as well as your support 

staff. 

I am going to say to the next panel, we have two votes. I have 

been here 10 years and we have five lights, and I finally figured 

out we have more than one vote. My understanding is we have two 

votes, a 15-minute and a 5-minute, but they will leave the machine 

open, so I suspect we are not going to be starting until 2:30. 

We will see you back here at 2:30, God willing. Thank you very 

much. 

[Recess.] 

Mr. SHAYS. I would like to call this hearing to order and to welcome testimony from Robert Allen, who is the inspector general, 

National Labor Relations Board, and Ms. Carlotta Joyner, who is 

Director of Education and Employment Issues for the U.S. General 

Accounting Office. 

And I believe that, Mr. Allen, you are accompanied by Mr. Michael Griffith and Mr. John Zielinski. Do I say that——

Mr. ALLEN. That is correct. 

Mr. SHAYS. OK. What we do is, first we owe you, obviously, an 

apology that we’ve gone so long. And I apologize that you’ve had 

to wait so long. But we do need to swear you in, as we swear in 

even our Members of Congress when they come before us. 

[Witnesses sworn.] 

Mr. SHAYS. Thank you. 

For the record, all four witnesses have responded in the affirmative. We have testimony from two of them, Mr. Allen, inspector 

general, and Ms. Joyner as well. 

So, Mr. Allen. 

STATEMENTS OF ROBERT E. ALLEN, INSPECTOR GENERAL, 

NATIONAL LABOR RELATIONS BOARD, ACCOMPANIED BY 

JOHN ZIELINSKI AND MICHAEL GRIFFITH; AND CARLOTTA 

JOYNER, DIRECTOR OF EDUCATION AND EMPLOYMENT ISSUES, U.S. GENERAL ACCOUNTING OFFICE 

Mr. ALLEN. Thank you for the——

Mr. SHAYS. I’m going to ask you to pull that mic a little closer. 

I’m going to have you put it on the other side of that sign, if you 

138

can, because you’re going to be looking toward me. So lift it up a 

little bit. OK. 

Mr. ALLEN. I appreciate the opportunity to appear here. 

Can you hear me? 

Mr. SHAYS. Yes, I can. I’m going to have you just lower the mic 

a little bit. You know, and my esthetic sense bothers me. I’m sorry. 

My wife complains. Can you take that name tag and put it back 

up there. 

Thank you. 

Mr. ALLEN. I’ve seen it all too much. 

Mr. SHAYS. OK. Well, thank you, Mr. Allen. Happy to hear your 

testimony. 

Mr. ALLEN. I’m the inspector general for the National Labor Relations Board. I’ve been so since September of last year. And before 

that, I served approximately 30, 35 years with the Board in various 

capacities, and it’s been said I’ve had every job that they offer 

there. I do bring to the office a background of the experience to the 

Labor Board that probably most inspector generals do not have 

with their agency. 

We have a small staff. We have three auditors and two investigators. The chief auditor is here, and counsel in chief investigator is 

here. We carry, or are carrying right now, 40 cases, open cases. 

And I came into this position with the grand idea of engaging in 

a program of what I call preventive medicine, because I believe it’s 

better through education and information to forestall or the happening of bad events than try to cure them after they happen. Unfortunately, the press of time and the case load has just not allowed me to do that. 

We are simply flooded with cases. You have our last two semiannual reports. And I think our cases run pretty much the gamut 

of what you find at any inspector general. As far as the auditing 

goes, we are nearing the end of—or will in a couple of months—

of our financial audit of the 1996 appropriations. We are in the 

middle of doing an audit and several investigations into contract 

performance by one of our largest contracts that we have led. And 

we, as soon as time permits, plan to review the procurement functions through an audit review and possibly investigation, and our 

property control, and the back pay procedures used by the agency. 

In June 1996, before I came upon this job, my predecessor was 

John Higgins. He issued a report which the committee has and 

which reviews the agency’s process for measuring and reporting on 

his performance. 

I had nothing to do with that report. I only read it this week. 

The supervisor auditor here today did. And so between us, we can 

address it to you. 

I would only initially say that, in my opinion, in 30 years, one 

thing that the Labor Board does good—and I can’t imagine anybody disagreeing—is that they do know how to measure. And I’d 

invite anybody over to look at the chart room. I’ve never seen any

139

agency or any business measure that works as well. And in the 

way Mr. Higgins describes, it comports with my 30 to 35 years experience. 

And with that, if you have any questions, I’ll be glad to address 

them. 

[The prepared statement of Mr. Allen follows:]

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Mr. SHAYS. OK. 

Ms. Joyner. 

Ms. JOYNER. Mr. Chairman, I’m very pleased to be here today to 

talk about the National Labor Relations Board’s strategic plan required by the Government Performance and Results Act. My written statement focuses primarily on NLRB’s July 8, 1997, draft strategic plan. As you requested, we determined whether the draft plan 

complied with the Results Act and the guidance on developing strategic plans from OMB. To judge the overall quality of the plan and 

its components, we use GAO’s May 1997 guidance for congressional 

review of the plans. 

Agency strategic plans are to provide the framework for implementing all the other pieces of the Results Act and a key part of 

improving performance. But the act anticipated that it might take 

several planning cycles to perfect the process. 

Agencies, as you know, are not required to submit their plans to 

Congress until September 30, 1997. So we knew when we reviewed 

the draft plan that it would probably be revised before submission 

to Congress. In fact, as you have noted before, it was revised, and 

we got a revised version on Tuesday of this week, on the 22nd. 

We’ve reviewed that plan as well. 

In summary, the draft plan of July 8 has deficiencies in several 

critical areas and often omits important information required by 

the act. 

The Results Act requires the strategic plan to have six specific 

elements. Regarding the first two of those, mission and the goals 

and the objective, the first draft that we reviewed, the July 8 draft, 

did not articulate well the mission and the goals and objectives and 

how the various functions were going to carry out the mission of 

the NLRB. 

It also listed strategies but did not describe them. And it entirely 

omitted three of the basic elements of a strategic plan. Those elements are the relationship of the long-term goals to performance 

goals that will be in the annual performance plan that’s due to the 

Congress in February of next year; a discussion of external factors 

that could affect achieving the goals; and a discussion of how pertinent evaluations were used in establishing the goals and a schedule of future evaluations. 

We did find that the plan recognized some of the key challenges 

facing the agency, including managing a large case load and improving, with acknowledging to be deficiencies in their information 

management system, the management information systems. 

But with respect to the management system, as you noted in 

your opening statement, there were several important omissions as 

well. One that you also noted that I would like to reinforce is the 

idea that they are moving ahead with improving their case activity 

tracking system, but they have not yet finalized, as we understand 

it, what measures they are actually going to be using in their annual performance plan. So there is a serious concern that those not 

being linked may lead to significant rework in the tracking system 

that they are developing. 

As I said, they produced a new plan after we discussed with 

them our concerns about their other plan, and it is attached, as you 

149

know, to the chairman’s statement. This plan, in our opinion, is a 

significant improvement over the previous plan. 

With respect to the six required elements, the mission statement 

focuses more on why the agency exists, its purpose, and the issues 

that the agency is charged to address. The goals and objectives 

move to progressively more detailed focus on what they hope to 

achieve. For example, the plan moves logically from mission, ‘‘encouraging and promoting stable and productive labor management 

relations,’’ down to a goal, ‘‘preventing and remedying unfair labor 

practices.’’ And that one, you can see, is further broken down into 

one objective about doing so expeditiously and another objective 

about doing it effectively—which they think of as quality and thoroughness as well as ensuring compliance. So there is a logical flow. 

And the strategies are presented. This time, unlike before, they’re 

clearly linked to the goals and objectives. However, there is not 

very much discussion, as there ought to be, of what resources will 

be needed and how the strategies will be carried out. 

Another problem with that portion of their strategic plan—the 

mission goals, objectives, and the strategies—is, what’s missing is 

any sense of how they’re going to communicate this process, these 

goals and objectives, throughout the agency, including across, as 

you spoke of earlier, the two compartments, if you will, of the agency and who—how responsibility will be assigned to accountability 

to managers and staff for achieving the objectives. 

The other three requirements are included in the revised draft 

plan, but they need to be more fully developed, especially the relationship between the long-term goals and the annual performance 

goals. 

For example, NLRB, we believe, should not have a false sense of 

confidence that the work to develop an adequate set of performance 

measures, which links to their strategic goals—that that work is all 

done. 

Assessing whether a set of performance measures is consistent 

with the Results Act, we believe, can only be done after the other 

elements of a strategic plan have been defined, and NLRB has now 

made substantial progress toward defining those other elements, 

such as the mission, goals, and objectives. 

I’ll be glad to answer any questions that you might have. 

[The prepared statement of Ms. Joyner follows:]

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Mr. SHAYS. Thank you. 

Mr. Allen, I’m not clear where you see trouble areas in the Department. Where do you see trouble areas? Where are the areas 

that concern you most in the NLRB? 

Mr. ALLEN. I think if we’re talking systemic matters, I think the 

workman compensation claims is certainly a problem, and we have 

engaged in a program to improve that. And we have even referred 

some cases to the U.S. attorneys. 

But as you know, the Department of Labor makes the ruling on 

that, but the various agencies pay for it. So there’s not, in my view, 

a lot of incentive for the Department of Labor to deny them. And 

the agency ends up with a bill in it—and I forget what it is, but 

it is substantial in my—that’s one area. 

And we have done—well, actually Mr. Higgins, my predecessor, 

started the program, and it’s been continued. 

I think maybe the other area that there may be some concerns 

is in the performance by outside contractors and possibly procurement problems. I won’t—I really won’t know the answer to those 

questions until we complete ongoing investigations that are going 

on now. 

We also investigate—the question of bias came up and how to—

how does the agency control bias investigations and determination 

of cases. We do have some investigations going on on that. They’re 

isolated, of course. 

Now, one thing we do not do, whatever the—we do not secondguess the case decisions of the general counsel of the Board or regional directors. That’s not within the jurisdiction of an IG. There’s 

a fine distinction, because we had a lot of complaints. People, say, 

hey, you know, this case is not decided right, and we have to tell 

them this. But then if they go further and make some showing, 

well, maybe it wasn’t decided right because it’s a misconduct, and 

maybe bias so blatant that it rendered the investigation or the decision, it tainted it. 

Mr. SHAYS. With the Department, you said the workers compensation is one concern, out contractors. 

How much progress do you believe the NLRB has made in establishing the whole issue of objectives in establishing performance 

goals and performance measurements as required by the Results 

Act? 

Mr. ALLEN. Well, the IG’s office has not looked into that. We’ve 

had no input into it, and we’ve not participated in it, other than 

for the June report of John Higgins. And, as I said, I wasn’t 

present then, but the last thing that the Office of the Inspector 

General did was that report. And of course I preceded the strategic 

plan and everything that followed. 

Mr. SHAYS. OK. I just have to tell you, it leaves me uneasy that 

you, as inspector general, can’t tell me how you think the Department is doing with the Results Act. 

Mr. ALLEN. I think if we’re forced to tell you that, we’re going 

to have to make a review or investigation on audit, and we have 

simply not done that yet. It is certainly—it is certainly something 

that we can do. 

And, Mike, would you address that? 

162

Mr. GRIFFITH. Mr. Allen mentioned that we did issue a report 

back in June 1996. And that did include the agency’s progress in 

terms of meeting GPRA. 

At that time, it was our assessment that the agency was moving 

forward appropriately. We have not, as he indicated, done any 

audit work or review work since that time until this week when I 

did look at the agency’s most recent strategic plan, and, like GAO, 

I saw the need for improvement in that. 

As the chairman indicated this morning, the agency is making 

considerable improvements in that strategic plan to meet the provisions of the law, but they still have a lot to go. And as GAO mentioned, one of the big things would be the performance measures, 

before they get too along in their information system. 

So we are looking at it, we just have not done extensive audit 

work since that time. 

Mr. SHAYS. Could you, Mr. Allen, give me a sense of why the 

agency paid $1 million to a contractor for services which were not 

performed satisfactorily or were not performed at all? 

Mr. ALLEN. That’s the allegation that’s in—that’s noted. 

Mr. SHAYS. Allegation that’s what? 

Mr. ALLEN. That is an allegation that has been made and is the 

subject of an investigation. 

Mr. SHAYS. Right. 

Mr. ALLEN. I——

Mr. SHAYS. Has the IG yet responded to that? Isn’t there some 

documentation? 

Mr. ALLEN. We issued a draft audit. The inquiry since then has 

expanded substantially. We’re investigating it. We have approximately three or four maybe—yes, four, at least, related cases which 

we have grown out of it which we’re investigating. 

I cannot—I’ll be glad to share the report with you, of course, once 

we’re finished. I do not think that it would be appropriate at this 

time to get into it, because, as you make your report, you interview 

your witnesses—for example, I’ve subpoenaed over 1,000 documents, pages of documents, also that——

Mr. SHAYS. How many work in your office? 

Mr. ALLEN. There’s myself, there’s my chief counsel, one investigator and three auditors. 

Mr. SHAYS. That’s it? 

Mr. ALLEN. And an assistant secretary. Yes, that’s it. 

Mr. SHAYS. So you have not had a preliminary finding that there 

was misuse of this money? There wasn’t——

Mr. ALLEN. I—I have not made any finding. 

Mr. SHAYS. OK. 

Mr. ALLEN. That is correct. 

Mr. SHAYS. Would you explain to me what we call the CATS, the 

Case Activity Tracking System. Explain to me what this system is 

supposed to do. 

Mr. ALLEN. Well, that—once again, we have not made a review 

of that. It is a new system to case tracking to replace the old system which functioned for years. But we haven’t—the agency has 

more needs now, and such has been explained. You can—under 

CATS, you’ll be able to track a case from its beginning to its end, 

163

and you can arrange it by subject matter, which, for example, you 

cannot do now. 

The part of our investigations that are going on now do not involve the CATS matter. It involves other matters in computer and 

computer maintenance, but it does not involve the——

Mr. SHAYS. Well, let me just say to you, though, that the thing 

that concerns me is, if we have a problem with $1 million, we’re 

going to at least be uneasy if the—the CATS system is going to cost 

how much? 

Mr. ALLEN. It’s going to be more than that. 

Mr. SHAYS. No; that’s an understatement. 

Mr. ALLEN. I’m sorry, I don’t know. 

Do you know, Mike? 

Mr. GRIFFITH. Well, a good bit of CATS expenditures has been 

the actual PC, the hardware, that type of thing, and it’s several 

million dollars. 

Mr. SHAYS. Have they spent 10 already? 

Mr. GRIFFITH. It will approach 10 certainly, once it’s all completed. 

Mr. SHAYS. OK. Well, I have a little bit of discomfort, if we’re 

concerned how $1 million is spent, how they’re going to do with $10 

million. 

Mr. ALLEN. Well, you’ll notice, Congressman, that we do have an 

inquiry planned, complete audit review on our procurement practices, and largely the concern growing out of the investigations 

we’re doing now, and that will be accomplished as soon as our 

small staff can do it. 

But we do have—one thing we do have, and I point out in my 

report, we do have the power of subpoena duces tecum, which I 

have used extensively for this for outside parties. 

You know, inside the agencies, everybody is required to produce 

documents and to cooperate. But when you have to go out to, say, 

outside contractors, the only power you’ve got or witnesses who 

may know something is your power to subpoena documents. And 

I have subpoenaed——

Mr. SHAYS. Power to what? 

Mr. ALLEN. To subpoena documents. 

Mr. SHAYS. The other power is, you have the power to——

Mr. ALLEN. Well, within the agency, I have the power to interview people, take affidavits, personal interviews, which we have 

done, but I do not have the power—the Inspector General Act does 

not give us the power to subpoena testimony. 

Mr. SHAYS. But let me ask you this. You can take testimony. But 

if you’re the inspector general and you have an outside contractor 

supplying a good or a service to a Department, the mere fact that 

you have concerns, it seems to me, you would get tremendous cooperation. If you didn’t get cooperation, I would think you would 

recommend that they discontinue the contract. 

Is this a contract that’s already been completed? 

Mr. ALLEN. The—the one we’re investigating is, yes. 

Mr. SHAYS. It’s——

Mr. ALLEN. It’s been renewed. 

Mr. SHAYS. It’s what? 

164

Mr. ALLEN. It’s been renewed, yes. It’s a 1996 computer maintenance contract. 

Mr. SHAYS. If you think you have any trouble getting documents, 

I would like to know. 

Mr. ALLEN. I have no trouble getting documents. 

Mr. SHAYS. Do you have any trouble getting cooperation or testimony? 

I don’t understand. If I had a contract and that contract meant 

something to me and I had an inspector general come in and ask 

questions, I would throw open my books to you in any way possible. 

I realize you’ve got few people, and that’s certainly a restraint, but 

you have a tremendous power. 

Mr. ALLEN. Well, in the beginning we did not have that problem. 

I just had a subpoena returned with a letter from an attorney 

which says, hey, we don’t give this; it’s irrelevant. Now I fight that 

battle next week. 

Mr. SHAYS. Well, you know, I have to be careful that I don’t, you 

know, interpret your nice kind of western southern drawl as being 

an easy kind of guy, because I hope that when you get that kind 

of reaction, that you are loaded for bear here. 

Mr. ALLEN. Well, I think we are loaded for bear, and——

Mr. SHAYS. Well, this is what we’re going to do. I’m going to ask 

my staff to personally inquire about this case and to followup with 

you. And if we have to get the contractor before this committee, 

we’ll do it. We will get the contractor before this committee if you 

don’t get the cooperation. And we want some answers pretty quick 

on it. 

Mr. ALLEN. I expect the report on this——

Mr. SHAYS. Will be due when? 

Mr. ALLEN. Certainly within weeks. Personally, if I can get 5 

days away from the other cases, I can finish it, if you want to have 

a specific answer. 

Mr. SHAYS. We’ll look to see some answers to this case. 

Mr. ALLEN. In a few weeks, yes. 

Mr. SHAYS. In September or a little earlier, I guess. But I’ll just 

leave it up to you discussing with our staff. 

Mr. ALLEN. Sure. 

Mr. SHAYS. We’re happy to followup. And we’re happy to—if you 

do not get cooperation from an organization that’s doing business 

with the Government, we’re very happy to have them explain to us 

why they’re not cooperating with the inspector general of the 

United States overseeing a very important Department. 

Ms. Joyner, how do you think the NLRB is progressing in linking 

its strategic plan annual performance goals to the activities and operations that are in the budget? 

I mean, how well are they—how well are they coordinating what 

are strategic plans and so on with their—and their annual performance goals to the activities and operations of the budget? 

Ms. JOYNER. Well, in this most recent plan that we saw, they 

have made some progress toward that, in that this time what they 

present is what they call performance measures, which we take to 

mean their statement of the kind of performance goals. 

As you know, they’re called upon now to have their strategic 

goals laid out and, in fact, to go ahead and describe the specific 

165

performance goals that they’ll be submitting along with their budget, which in fact need to go to OMB for review in September. So 

it’s not way off in the future in terms of getting clear on that. 

So they do list some performance measures. The measures seem 

to be well-linked, and they seem to be ones that probably would 

provide some useful information. 

My concern is about the set of overall performance measures. It’s 

not that I would be critical of any one of the measures that they 

provide, but what’s missing seems to be a comprehensive look at 

the goal and the objective and then delineation of the whole range 

of measures that would give me some sense that I’m accomplishing 

these. 

So whereas they have lots of measures—they have several in the 

plan, and I understand they have many, many more—they have 

lots of numbers and lots of measures. 

For example, they’ve get a timeliness. They can talk about timeliness and various segments and various goals, that that part of 

their—their mission and their goals and objectives that relates to 

the effect, the result, of what they’ve done and, as they call it, even 

the quality of the decision. 

To go back to the example I gave before on unfair labor practices, 

what’s missing in that set of performance measures is any assessment of the effect of their enhanced compliance efforts. So the biggest problem is the gap, the gap in the kinds of measures that 

they’re presenting. 

Mr. SHAYS. OK. In terms of—I’m uneasy about the whole Case 

Activity Tracking System. Is my uneasiness justified? 

Ms. JOYNER. On the basis of what’s in the strategic plan, I would 

say that this uneasiness is well-justified. There may be more information than either of us has about the planning that has gone into 

that. 

Mr. SHAYS. Are you saying——

Ms. JOYNER. But it’s not in the plan. It is not written for us to 

know about. 

Mr. SHAYS. So are you saying in terms of the Results Act, the 

whole CATS operation is not part of that Results Act? I mean, you 

don’t see it connecting between the two? 

Ms. JOYNER. What’s missing right now is a delineation of what 

measures they need to be able to demonstrate to themselves and 

to the Congress that they’ve met the goals and objectives that 

they’ve laid out. 

Until they’ve decided what measures they need—and essentially 

we talked with you about those, talked with you about those measures in their consultation process and received agreement that if 

we use these measures and perform according to the standards 

we’ve set, we will be demonstrating success. 

Until they’ve done that, they don’t know what they need to put 

in their Case Assignment Tracking System. They don’t know all 

the things that they need to have in there. So our concern is that 

if they step back and say, ‘‘we’ve been measuring lots of things for 

40 years but maybe we haven’t measured all of the right things 

and now we need to design some new measures,’’ if they were to 

do that, as the strategic process calls for, then they would perhaps 

166

need to build into their tracking system something that they’re not 

currently planning to build in. 

So until they’ve looked at the measures in the context of what 

they’re trying to achieve, they won’t know that they have all the 

right measures. 

Mr. SHAYS. I’m going to ask in a second the staff to ask a question, too, if we need to. 

But, Mr. Allen, when you started out, you made reference to 

measurements, and you said that the NLRB knows how to measure, if anything knows how to measure. I lost the beginning of it, 

so I didn’t quite get your point. 

Mr. ALLEN. The point—that’s the point my predecessor makes in 

this memorandum and I was trying to say. 

Mr. SHAYS. His point was? 

Mr. ALLEN. That historically going back to 1960——

Mr. SHAYS. Yes? 

Mr. ALLEN. As a matter of fact, the NLRB has an impressive 

measuring system. Now that’s not to say that it meets the requirements of the Results Act. I didn’t mean to indicate that. I’m just 

saying, historically, I agree with John Higgins that I don’t know of 

any agency or personally of any business where you can walk in 

one room and it’s charted all the way around on any—on any single 

case activity will tell you exactly where the performance is. 

Mr. SHAYS. Well, I’m wondering if they can tell you, you know, 

how many and what they’ve done. The question is, can they answer 

the questions of why and——

Mr. ALLEN. No. 

Mr. SHAYS [continuing]. And how well. You know, those are the 

measurements that you know we’re going to need to get into. 

Mr. ALLEN. I understand that the Results Act does require additional—additional measurements. 

I might add, you were asking—you know, the IG really hadn’t 

been in on this. The IG Act does provide, in addition to all wastes 

and abuse, that we should be in on the agency programs on the 

economy and efficiency of it, and I assume that’s what you’re referring to. The problem being the NLRB—our staff has—has been so 

small, we have never, never been involved in—for example, on the 

planning of—of how you—of how you made a strategic plan or 

GPRA. 

Now what happens, we will review it later at times, but as far 

as being in up front——

Mr. SHAYS. Let me just ask you up front about this. 

Mr. ALLEN. Yes. 

Mr. SHAYS. What I think I hear you saying is, you’re a small office. 

Mr. ALLEN. Yes. 

Mr. SHAYS. And I would be the first to acknowledge that the 

Government has required GPRA Results Act performance measurements and so on. 

And are you saying that even within your own office, you have 

limited ability to determine a good plan and so on? I mean, that 

would be a fair statement to say. And one very——

Mr. ALLEN. That wasn’t what I was saying, though. 

Mr. SHAYS. Does that happen to be true, though? 

167

Mr. ALLEN. That happens to be true, yes. 

Mr. ALLEN. But what I was saying is, looking at the National 

Labor Relations Board, just not the inspector general part of it, the 

IG Act provides that we should be in up front on planning and 

function in such things as the strategic plan. We have never, never 

to my knowledge, been able to do that, either me or my predecessors, because of the smallness of the staff. 

Mr. SHAYS. Yes. Fair enough. 

Mr. GRIFFITH. Mr. Chairman, may I make a comment? 

Mr. SHAYS. Sure. 

Mr. GRIFFITH. Just in regards what you’re talking about, we did 

go in, as I said, 15 months ago and assess where the agency was 

on its strategic plan and meeting the various provisions of GPRA 

as part of the overall review of measuring its ability to fulfill its 

mission. 

At that time, we made the assessment that they were moving 

forward in an appropriate fashion. But they at that point did not 

have a strategic plan finalized that we could actually review. 

What they had done, that we were able to confirm, is they’re 

dealing with theoretical experts in the area, quizzing their employees, this type of thing. And they were also establishing data bases 

by which they could compile their information. 

Mr. SHAYS. What I’m trying to get at is if you know, if I had to 

come and set up a performance program in my own office, as we 

try to do, we’re pretty elementary in doing it; we don’t have someone who’s going to graduate school with how you do performance 

measurements. I have a graduate degree, and I’ve had some background in this. 

But I guess the point I’m trying to say is, this is new territory 

for a lot of us, including the committee. I’m trying to have a little 

sympathy for a small office that may not have the expertise, because it’s clear to me this isn’t a primary focus of your unit right 

now, and my first reaction is to think this is really terrible, and 

then I’m thinking, wait a second, we’ve got a small group of people. 

Were you given any training yourselves in how to set up such a 

process? Did you hire someone new to——

Mr. ALLEN. We did not. 

Mr. SHAYS. Exactly. And so I’m just trying to sort it out a bit 

here. 

One last question. Then I am going to get to staff. The Board is 

five members; correct? And, NLRB has only three members sitting? 

Mr. ALLEN. Three members sitting. 

Mr. SHAYS. And only three members sitting for how long now? 

Mr. GRIFFITH. Since this past—let’s see here. 

Mr. ZIELINSKI. Remember, Browning died. 

Mr. SHAYS. February. A few months ago. 

Has the administration brought forward any appointments yet or 

nominations? 

Mr. ALLEN. Not that I know of. 

Of course, two of them sitting are not—you know, are not confirmed members. 

Mr. SHAYS. So we only have one confirmed member. 

Mr. ALLEN. Yes. That’s the chairman. 

168

Mr. SHAYS. We have two that aren’t confirmed, and we have two 

vacancies. 

Mr. ALLEN. Yes. 

Mr. SHAYS. That’s a pretty pathetic situation. I was going to get 

into that, but we have so many other questions. That’s pretty pathetic. 

What is the impact of having the three-member Board and two 

of the three not permanent members? 

Mr. ALLEN. Well, I think—of course, the chairman addressed 

that. In my view, based on my experience of the agency as IG, it 

means that I think some of the probably more difficult cases do not 

get out, more important cases, in my view, because you would 

want—you would want a bona fide five-member Board to rule on 

those matters, and I think—I think it was—I think that would be 

one of the biggest drawbacks. 

Mr. SHAYS. Well, I’m going to talk with Mr. Towns about the 

value of our weighing in on this, because, casting no aspersions, it 

just simply needs to happen. 

Ms. Joyner, any response to a three-member Board of which only 

one is a permanent member? 

Ms. JOYNER. I really wouldn’t have any basis to respond on that. 

Mr. SHAYS. OK. You haven’t looked at that? 

Ms. JOYNER. No. 

Mr. SHAYS. OK. Let me do this. 

Ms. JOYNER. We’ve not looked at this issue recently. We did—

back when we did a study in 1990, we issued a report in 1991. We 

talked about the high turnover in Board members as being a problem contributing to some of the backlogs at the Board level. 

And, in fact, related to that, if I might expand on a discussion 

that occurred earlier today, is that the backlog after at the Board 

level—after decisions get up to that point when we based on data 

from the end of 1996, it’s now as bad as it was back when we did 

this study, 1989; 16 percent of the cases that reach the five-member Board stay there for over 2 years. 

Mr. SHAYS. OK. 

Ms. JOYNER. And that was the——

Mr. SHAYS. Say that again now. 

Ms. JOYNER. After we——

Mr. SHAYS. Say exactly what you said again. 

Ms. JOYNER. Sixteen percent of the cases after they reach the 

state of the five-member Board decisionmaking are there over 2 

years. 

Mr. SHAYS. OK. 

Ms. JOYNER. And that’s what they had set as, after we did our 

work in 1991. And we looked at the backlog just at that—at that 

level, at the Board level. We recommended that they set some clear 

criteria for how long was too long and some processes in order to 

make sure that they don’t exceed that. And that’s what they said. 

And it did get better. 

Mr. SHAYS. OK. 

Ms. JOYNER. But in the last few years it got worse again. 

Mr. SHAYS. The committee needs to look at that again. I’m going 

to work with my ranking member to see if we can make an effort 

to encourage the administration to move forward. 

169

At this time I would ask Cherri Branson if she has any questions. 

Ms. BRANSON. Yes, we have just a few questions for Ms. Joyner. 

Ms. JOYNER. Yes. 

Ms. BRANSON. First of all, GPRA requires that all the agencies 

submit their plans by September 30, 1997. 

Ms. JOYNER. Yes. 

Ms. BRANSON. What does the law provide if that doesn’t happen 

and if the agency fails to submit their plan? 

Mr. SHAYS. I didn’t notice that southern accent until we had Mr. 

Allen. 

Ms. BRANSON. I’ve had it for quite some time. 

Mr. SHAYS. OK. 

Ms. JOYNER. We have to be careful, or mine will start coming out 

too. That’s what happens when I’m around it. 

Mr. ALLEN. If you get two of us together, it will happen every 

time. 

Ms. JOYNER. What happens if agencies don’t submit their plans? 

I have to admit, I really don’t know. I’m not—I have not heard any 

discussion of the consequences. I’m not sure what there might be 

in the way of penalties for an agency that does not submit their 

plan by then. 

Ms. BRANSON. If the act doesn’t have any penalties, then what 

do you think may happen? 

Ms. JOYNER. I think that all the agencies will submit something, 

and they will be quite variable in their quality. 

OMB, of course, is a control point for this, agencies are required 

to submit their plans to OMB first. I believe they’re due there no 

later than August 15. And then there—with the feedback they get 

from OMB, they are to submit them to Congress. 

So I think the administration does take very seriously the fact 

that they’re a control point and they’re supposed to get some plans 

submitted. GAO has—on the basis of some earlier work—looked at 

the progress agencies were making and issued a report saying that, 

really, we do feel they’re going to be a very uneven quality. 

Ms. BRANSON. Has GAO—is GAO working on a report now that 

discusses overall GPRA compliance? 

Ms. JOYNER. One thing we’re doing right now, upon request from 

several Members of the House leadership, is we are—we have reviewed the draft strategic plans for the 25 major agencies. And this 

was a joint request from the House leadership. And we have gone 

in using the same criteria that I described earlier—in fact, that we 

used with the NLRB’s strategic plan. And we have reported in correspondence on each agency as we got them finished. 

I was responsible, for example, for the ones on education and on 

the Department of Labor. And there will be a product that pulls 

together what we found across those. And I think the deadline for 

issuing that will be sometime in August that we’ll be issuing a report, if you will, what we call correspondence, probably, that reflects our observations over these. 

Again, these are the draft plans, and we recognize and we try to 

be sensitive to the fact that the agencies have more time to improve them. But—but we will be issuing some comment about 

where they looked at least at that draft stage. 

170

Ms. BRANSON. And it’s my understanding that you have reviewed, in preparation for this hearing, at least two reports, draft 

reports, for the NLRB. 

Ms. JOYNER. Yes. 

Ms. BRANSON. And then you stated there is a significant difference between the first report and the second report. 

Ms. JOYNER. That’s right. 

Ms. BRANSON. So have you had—would you describe their attitude as cooperative and—and willing to make change? 

Ms. JOYNER. They were very cooperative and interested in what 

insight we could give them on ways to improve. They repeatedly 

said, ‘‘tell us what we need to do and we’ll try to do it.’’ And they 

were receptive to the comments that we offered. 

Ms. BRANSON. OK. Can I just ask one more? 

Mr. SHAYS. Sure. 

Ms. BRANSON. Mr. Allen, does the NLRB have a chief information officer? 

Mr. ALLEN. The—we do have information officers, yes. 

Ms. BRANSON. I mean under the CIO Act as—in addition to the 

CFO Act. 

Under the CFO Act——

Mr. ALLEN. I don’t think so. 

Ms. BRANSON [continuing]. All the agencies have to have a chief 

financial officer. Under the CIO, they have to have chief information officers who are responsible for the computer systems. 

Do you know whether the NLRB has a CIO? 

Mr. GRIFFITH. We do not have a CIO. We do not, I believe. We 

can check on that. 

Ms. BRANSON. Some of the problems you describe with the CATS 

system could—do you believe they could be addressed if there was 

a CIO? 

Mr. GRIFFITH. The—what’s been discussed thus far in terms of 

the CATS problem is that perhaps the agency needs to rethink its 

performance measures to build into the data base so that when it 

starts getting its information down the line, it will be able to conform better with the requirements of GPRA, and perhaps a chief 

information officer could help in that regard. 

As far as some of the other issues that have been brought up, 

the year 2000 problem, integrated accounting systems and that 

type of thing—I don’t believe that we have that issue at the NLRB, 

and I don’t think a CIO would have made any difference. 

Ms. BRANSON. Thank you, Mr. Chairman. 

Mr. SHAYS. I thank you for the very good questions you asked. 

What we’re going to do is, I’m going to go vote and we’re going 

to come back. And then Mr. Yager, Mr. Joseph, and Mr. Hiatt will 

be asked to come. 

And let me just ask, is there anything that any you would like 

to—any point you want to make? 

Mr. Zielinski, you haven’t responded or answered any of my 

questions. Is there any point you want to make given what you’ve 

heard, the questions? 

Mr. ZIELINSKI. Yes, I would just like to—in partial response to 

the staff question with regards to the CIO, I’m not entirely sure 

NLRB is covered under the CFO Act because of its size. The agency 

171

has, in the wake of problems with the computer system, brought 

in a new director of management information systems branch who 

just came on board in the last 2 weeks, who was a deputy CIO at 

GSA, in fact. I think that may well address the question. I’m not 

sure if GAO is even aware of that. They are attempting, I think, 

to tighten up in the management information system area. 

The other thing is I—I think perhaps to relieve the chairman’s 

concerns about our perspective on the complaining and so forth, I 

can tell you that that has been an element within the inspector 

general’s office. 

Mr. SHAYS. That’s been a what? I’m sorry. 

Mr. ZIELINSKI. An element within the inspector general’s office. 

And we’ve had, I guess for 2 years now, a strategic plan both for 

the audit side and the investigative side of the office. And that’s 

something under review at this time to update. 

So it’s not necessarily a lack of cognizance, but it’s kind of like 

rowing in the rowboat upstream against the current with the size 

of the staff and amount of issues that are there. 

Mr. SHAYS. OK. Thank you. 

Any comments, Ms. Joyner or Mr. Allen? 

Ms. JOYNER. I would just like to reiterate that I think what this 

strategic plan exercise provides the NLRB is an opportunity to look 

beyond what they’ve done, possibly quite well in terms of tracking 

what they have been doing and how fast, and to focus on the results and why they exist and what ought to be different in the 

workplaces out there as a result of their actions. 

Mr. SHAYS. OK. All set, Mr. Allen? 

Mr. ALLEN. Yes. 

Mr. SHAYS. OK. Let me just recess and apologize to the third 

panel, but we’ll be back very quickly. 

Mr. ALLEN. Thank you. 

[Recess.] 

Mr. SHAYS. Stay standing, and we will swear you. 

We call this hearing to order and invite Mr. Daniel Yager, vice 

president and general counsel, Labor Policy Association; Mr. Jeffrey Joseph, vice president of domestic policy, U.S. Chamber of 

Commerce; and Mr. Jon Hiatt, general counsel, AFL–CIO. 

And we are happy to have you here. Raise your right hands. 

[Witnesses sworn.] 

Mr. SHAYS. Thank you. 

This has been a long day, and you are probably saying, why did 

I get here so early? Maybe you were smart enough not to get here 

so early. I do appreciate you being here. All three of you have very 

important testimony. I think you will probably want to express 

some views that we haven’t yet heard, and we welcome that. 

We will start as I called you and begin with you, Mr. Yager, and 

then go to you, Mr. Joseph, and then Mr. Hiatt. 

STATEMENTS OF DANIEL V. YAGER, VICE PRESIDENT AND 

GENERAL COUNSEL, LABOR POLICY ASSOCIATION; JEFFREY 

H. JOSEPH, VICE PRESIDENT FOR DOMESTIC POLICY, U.S. 

CHAMBER OF COMMERCE; AND JONATHAN P. HIATT, GENERAL COUNSEL, AFL–CIO 

Mr. YAGER. Thank you, Mr. Chairman. 

172

Mr. SHAYS. Thank you very much. 

Mr. YAGER. My name is Dan Yager. I am general counsel for the 

Labor Policy Association. This is an organization representing the 

senior human resources executives of over 250 major corporations. 

We appreciate——

Mr. SHAYS. Can you move the mic down just a little speck? 

Mr. YAGER. Am I too loud? 

Mr. SHAYS. No, no, you’re not loud enough. It’s a little far away 

from you——

Mr. YAGER. That’s new. That’s the first time anybody has complained of that, Mr. Chairman. Usually, people tell me to tone it 

down. 

Mr. SHAYS. Maybe what you say, they tell you to tone it down. 

Mr. YAGER. Content? No, I can’t agree with you there. 

I appreciate the opportunity to appear before the committee. I 

think even more so, our organization appreciates this committee focusing on this agency, because I think our concern, a lot of it, is 

that over the last several years, and not just the current regime, 

there really has been a lack of public or congressional attention to 

this agency. And in part because of that, and because of a number 

of other factors, we really feel like the agency has, to a large extent, degenerated. It has become viewed by many parties as really 

a political agency, and there is a feeling that to actually get justice, 

if you can afford it, you just sort of wait out the Board’s process 

and then get the case into the Federal courts where you are more 

likely to get some consistency, some reasonableness. And, as you 

might imagine, only people who can afford to do that are actually 

able to do that. And for the little employer, that doesn’t help too 

much. 

Obviously I don’t have enough time today to go through all the 

cases that we have described to document our concerns. Earlier 

this year, we published a monograph, ‘‘NLRB: Agency in Crisis,’’ 

which I believe we sent to you. In our testimony, we primarily focused on updating that and not going back and reiterating those 

cases but using some of the new cases. 

We have a number of concerns. I will just throw out one example: the perception that when there is an election, and the union 

loses, the Board will very often use any minor transgression by the 

employer to call another election and give the union another bite 

at the apple. 

On the other hand, when the shoe is on the other foot, we don’t 

always see that to be the case, and there are a couple of recent 

cases that have even gone so far as to say that where there are allegations that the union or somebody actually forged union authorization cards—those are the cards that a union will use to get the 

employees to sign to show the Board that there is enough interest 

to have an election. There have been allegations in a couple of 

cases where those were forged. This was after the election. 

The Board actually took the position that those allegations were 

irrelevant, that in fact once the employees had voted on whether 

to have a union or not, alleged forgeries of authorization cards were 

irrelevant. 

Now, from my point of view, if I was an employee and I had just 

voted for a union and had later found out that they had actually 

173

been fabricating signatures on official legal documents, I might 

want to have another chance to vote on that union. 

That’s one example. There are numerous other examples. 

Mr. Snowbarger went through a number of complaints about all 

the numerous baseless charges that are filed, and these are frequently part of what is called a corporate campaign which is designed to harass an employer and cause it to expend precious resources litigating matters that really don’t have any merit. While 

the Board continues to allow that sort of thing, in a couple of recent cases they have actually moved against employers who, in 

State court, have attempted to defend their own legal interests. 

For example, Beverly Enterprises had been subjected to some libelous activity by the SEIU on the picket line. They sued SEIU in 

State court, and, in turn, the Board went after them and in fact 

even tried to get an injunction to stop Beverly from defending its 

own interest in State courts completely outside of the labor laws. 

So, while at the same time they are allowing unions to harass 

employers, they are taking away a lot of the employers’ defenses. 

I think a lot of the problem we see today is that the Board, I 

think, to some extent, has outlived its usefulness at least in the adjudication of unfair labor practices. I think there is still a need for 

the Board to administer elections. You need a neutral party to do 

that sort of sensitive issue. But in the adjudication of unfair labor 

practices, I think the concept in the thirties was that we have got 

this broad new law that we are passing and it is going to apply to 

all of these industries; we need some expertise from those industries and some workplace experts to help translate that law into 

the various instances that it will apply to. 

Well, it has been 60 years. The law has pretty much been fleshed 

out. We are down to nuances now, and what we have seen for the 

last 15 or 20 years is really just nuances and a shifting of policy 

depending on whether it happens to be a Republican Board or a 

Democratic Board. 

In the meantime, what is happening to the parties—and we even 

heard this this morning—is a long, lengthy process to get a case 

through the Board which can take anywhere from 1 year or 2 to 

sometimes 5 or 6 years. We give an example in our testimony that 

is 8 years and counting and still hasn’t been resolved. 

We would query, wouldn’t it perhaps make more sense to go 

right into Federal court? The Federal courts——

Mr. SHAYS. May I interrupt you, since I am the only person here. 

They don’t have the ability right now if it is a long case to just go 

directly to the courts? 

Mr. YAGER. Well, they can try an injunction, Congressman, and 

in fact——

Mr. SHAYS. I am talking about the two parties. 

Mr. YAGER. Oh, no; you have to go through the NLRB for most 

cases. There is a very narrow range of cases dealing with secondary 

activity. 

Mr. SHAYS. That might be something all three of us can talk 

about, and if I forget to ask, I’d love you to respond to it. 

I’m sorry to interrupt. 

Mr. YAGER. Actually, we would be very interested in pursuing 

this with you, Congressman, because if you look at all the other 

174

cases that the courts now deal with in the employment area—

Americans with Disabilities, complicated cases in the antitrust 

area—I don’t think the courts necessarily need a panel of experts 

any more to filter through these various case. It may make more 

sense and it may make for quicker relief and quicker resolution of 

the issues to go right to Federal district court and have the trial 

there. 

One possibility would be to retain the general counsel function. 

There’s pros and cons both ways on that. But I think where you 

need to get past and where most of the really bad delays occur are 

after you have had the trial, the fact-finding process by the administrative law judge. The matter then sits before the court—before 

the Board for, even under a good Board, a year and a half. I am 

not sure what the exact averages are or the mean, but I know it’s 

at least somewhere in the 9 months to a year case. But it is certainly not unusual for a case to sit there for a year and a half or 

2 years. And then if you wind up going to the courts anyway, what 

did you gain by having that case sitting before the Board? 

I also think that the Board, in the recent seeking of the injunction against the Detroit newspapers to which we are strongly opposed, it is interesting because Chairman Gould—and I believe he 

included this in his testimony—wrote a rare decision as to why he 

was agreeing to authorize the 10(j) injunction. A large part of his 

reason for authorizing it—and I think he more or less said that 

this morning—was to avoid the lengthy delays that further adjudication by the Board would accomplish. 

Well, to me, that is an admission, what possible purpose is the 

Board serving here? 

I might add as an aside that that case sat before the Board for 

2 years before it even did get to an administrative law judge decision, and the general counsel never sought expeditious review by 

the administrative law judge and didn’t seek an expeditious review 

by the Board, which makes it puzzling as to why 2 years later, all 

of a sudden, it would be all that urgent that they would proceed 

with a 10(j) injunction. 

And on that, I think I’m—in the interest of time, I think I will 

go ahead and finish before my regular time is over. 

Mr. SHAYS. Actually, we extended. Your regular time is 5 minutes, but we are giving witnesses 10. Since you waited so long, you 

deserve that at the very least. 

Mr. YAGER. I believe I’ve said everything that I need to. I appreciate the opportunity to appear, and I will be happy to answer any 

questions. 

[The prepared statement of Mr. Yager follows:]

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Mr. SHAYS. Mr. Joseph, you will have 5 minutes, and I’m going 

to roll it over another 5 if you need it. 

Mr. JOSEPH. Thank you, Mr. Chairman. I appreciate the opportunity to be here. 

I’m Jeff Joseph with U.S. Chamber of Commerce. Our Chamber 

is a federation of more than 3,000 State and local Chambers, more 

than 1,200 associations, and about 200,000 companies. Most of our 

members are small businesses, most of our members are not unionized, but nevertheless I am here to report the perception that they 

all seem to be getting that the NLRB, as an agency, has lost its 

focus from once being an objective arbiter of labor-management disputes into something that has gone into the captive side of organized labor. 

The perception they have is that the political structure has overtaken the efficiency and the administrative functions that were 

originally delegated to the agency and it will take strong oversight 

by the Congress and this committee to try and provide balance 

back into the process. 

I think it’s self-evident that the Board’s critical role as an impartial and independent agency was unilaterally changed by the current chairman who, not long after being confirmed, made no secret 

of the fact that he considered himself a member of the President’s 

administration. He said the same thing under oath this morning. 

Quite frankly, I have a hard time understanding how he can get 

away with that. This reflects his belief somehow that the Board is 

not a neutral, independent agency bound to enforce existing law 

but, rather, a policy-driven organ somewhat related to the administration. As a result, we believe the Board’s decisions are tainted 

with the suspicion that its determinations are designed to achieve 

the political ends of the administration rather than the purposes 

and policies of the National Labor Relations Act. 

How can he say that, since they are a judicial function, and then 

mention that he is a member of the President’s administration? 

How can Congress, which has to arbiter between executive branch 

agencies and independent agencies, allow someone who is independent of the administrative branch walk around and say that he 

is there to follow the directions and the goals of the administrative 

branch? I think it is clearly improper, if not illegal. 

We believe that there are other factors that erode the Board’s 

credibility, Mr. Chairman. You have talked about the situation of 

just having a few people there, only one confirmed by the Congress. 

That obviously undermines the credibility of the agencies in the 

labor management community as well as in the courts. We think 

the Board’s credibility has been diminished by other actions as 

well: Salting, which was raised earlier; corporate campaigns; secret 

ballot elections; new rulemakings; a number of efforts that are very 

clearly, from our members’ perspective, being undertaken to support the unions in their organizing efforts. 

If you stop and step back for a second and look into the world 

of business today, you see the stock market at a record high, the 

economy doing great, 90 percent of the employees not choosing to 

be in unions, the majority of workers are now working for small 

businesses, and you find as employees have chosen over the last 

several decades not to become members of unions, union strategies, 

217

instead of trying to encourage workers to go their way, are using 

tools to try to coerce employers to basically throw up their hands 

and say, OK, you guys win; come on in and take them over. 

We think this whole confrontational strategy of management 

versus labor which was set up 65 years ago in the industrial era 

makes no sense at all as we go into the 21st century. And to second 

some of the comments that were just made, we think it’s time to 

look at all of the labor laws, including the NLRA, in terms of thinking what processes and procedures make sense in dealing with 

workplace rules and regulations. 

The Board, under Chairman Gould, appears to be creating new 

laws even though he assured Senators during his confirmation 

hearings that he would merely interpret existing laws. But during 

the past 3 years, the Board has overruled or significantly altered 

the law a number of times, and the Court of Appeals has not 

looked favorably on these actions. My full testimony cites a number 

of actions where they have been taken to task for again going off 

of the historical, beaten track. And because of our—the allegations 

that we are making that everything is tied to being a member of 

the administration and the goal of trying to align NLRA and NLRB 

actions with the intentions of the administration, we think the 

greatest challenge to peaceful and cooperative labor relations lies 

ahead. 

As you know, in February, Vice President Gore announced to the 

AFL–CIO Executive Committee that the Clinton administration 

planned to issue an Executive order and regulations that would virtually require all government construction projects to be performed 

pursuant to project labor agreements and would debar government 

contractors that violated or were alleged to have violated various 

labor laws, including the NLRA. 

You heard in testimony earlier today about frivolous charges and 

how many get dismissed, yet this becomes a new stick, a new club, 

that could be used potentially by organizers as a way of intimidating employers to coerce to union demands. 

We think that in light of the administration’s plans, it is appropriate for this committee and this Congress to ask the Board a 

number of questions. 

First, Congress should know to what extent NLRB employees, including Board members and its general counsel, have been consulted by the administration as it prepares new administrative regulations. 

The next question should be an effort to learn to what extent 

would such regulations affect union organizing and the NLRB, and 

would the Board’s role enforcing those regulations require more 

funding or less than it now receives, and what role will the Board 

have in enforcing the regulations in consulting with other agencies, 

and to what extent would that role fit in with the Board’s current 

responsibilities. 

We believe that labor relations stability is absolutely essential to 

most businesses, especially those whose employees are represented 

by a union. But when the Board routinely alters established precedent, it’s not possible for the employers to know whether the actions that they have planned are potentially in violation of the 

218

NLRA. This information could be essential to avoid a Board finding 

of huge liability and back pay or other make-whole relief. 

The Chamber urges Congress to make more aggressive steps to 

control what appears to be the NLRB’s efforts to rewrite the National Labor Relations Act, effectuate administrative policy objectives, and provide even more weapons to aid labor’s organizing 

drives. 

Thank you. 

[The prepared statement of Mr. Joseph follows:]

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Mr. SHAYS. Thank you. 

Mr. Hiatt. 

Mr. HIATT. Thank you, Mr. Chairman. 

This is the fourth congressional committee to hold an oversight 

hearing on the NLRB in the past 2 years. The prior hearings have 

largely served to provide a platform for those who have declared 

war on the Board and to pursue their continuing attacks, and I 

want to say that it was most welcome but, at the same time, a sad 

commentary perhaps on what has come before, that the chairman 

felt compelled to assure us that today, at least, there is no hidden 

agenda. 

Mr. SHAYS. Let me just tell you, Mr. Hiatt, only because I’d 

heard that criticism from your organization, and, frankly, I was 

slightly outraged by it. So I just want to explain to you why. It 

came from your organization, since you mentioned it, and we have 

been deficient in not looking at all labor activities because we have 

five panels. 

So I find it interesting that you want to start your testimony this 

way. 

Mr. HIATT. I am sorry, Congressman. I just wanted to say that 

we have not suggested that about this subcommittee in the slightest, but the fact is that in some of the hearings that have preceded 

this one, the focus has been not on the kinds of questions that were 

asked of the Board this morning or the kinds of testimony that was 

delivered but, rather, simply on providing a forum for complaints 

about actions that the Board has taken now, no different from 

those that the Reagan and Bush Boards took and were taken in 

prior decades, but which some segments of the business community, at least, are suggesting represents such a diversion from the 

past. 

There was a commission established by the President 3 or 4 

years ago headed by former Secretary of Labor John Dunlop, composed of both labor and management representatives, in which 

business and labor and others were invited to testify, and the business community was effectively invited to describe all that they felt 

was wrong with the NLRA and the NLRB both in terms of substance and in procedure, and they could not—the business community kept assuring the commission that the law was working just 

fine, that the Labor Board was working just fine, that there was 

absolutely nothing wrong, that no changes were warranted, with 

the one possible exception that some members in the business community felt should be changed concerning section 8(a)(2), the 

TEAM Act kinds of issues. 

And yet today, because of what is viewed as a more aggressive 

enforcement of the law, some of these same representatives believe 

that total overhaul both of the law itself and of the agency is called 

for. 

I just want to be clear that the AFL–CIO also sees much to be 

disappointed about in the way that the act is being administered 

today. We are certainly troubled by the large and growing backlog 

of cases awaiting investigation, a backlog that has nearly doubled 

in just 3 years. We are troubled by restrictions that have been 

placed on investigators that limit their ability to ferret out the 

facts. We are troubled by the vast majority of meritorious charges 

226

that continue to be resolved by a minimal slap on the wrist. And 

we are troubled by the continuing backlog of cases awaiting decision by the Board as the median length of time from the filing of 

a charge to a decision by the Board is stretched to over 18 months. 

And especially in light of these delays, we are deeply disturbed 

by what appears to us to be a significant retreat by the Board in 

its use of the section 10(j) injunctions, which are intended to secure 

immediate relief from unfair labor practices committed by employers or unions. 

We are also disappointed by the fact that there is only one confirmed member on the Board, two recess appointees, and two vacancies, and we appreciate your offer to try to spur the administration to addressing that. We think the Senate leadership needs to 

be spurred as well, since we are told that the Senate leadership 

has indicated that they have no interest in having these appointments taken up for consideration. And if that is wrong, we would 

welcome action in that area. 

Notwithstanding all of that, the fact remains that the NLRA is 

the only national law that recognizes the fundamental right of 

working people to associate freely for their mutual aid or protection. And they have to depend on the general counsel’s office and 

on the Board to vindicate those rights of free association. And when 

the agency is bloodied, it is working people who suffer, and to some 

degree that is what is happening now. 

Consider the matter of NLRB funding. Law enforcement, as we 

have heard this morning, is very labor intensive work. The cost of 

lawyers and investigators continue to rise, yet since 1985 the 

Board’s budget has been slashed in inflation-adjusted terms by 17.4 

percent and the agency’s had to reduce its staff by more than 25 

percent. 

And as disturbing as this defunding has been, the appropriations 

process itself over the past 2 years has, we fear, done even more 

damage to the cause of effective enforcement of the laws. The 

Board has been overtly threatened with budget cuts if it ruled in 

a particular manner in a particular case that was pending before 

it. To its enormous credit, we feel the Board has stood up to those 

threats, but as a result of its independence, the Board has faced 

the possibility of budget cuts so large that they would have destroyed the agency. 

And even though those cuts—threatened cuts were scaled down, 

the Board has suffered a real cut of 6 percent over 2 years as the 

price for being, in the words of the chairman of the House Appropriations Committee, ‘‘too intrusive.’’

Meanwhile, as I say, some segments of the business community 

have launched a propaganda war against the Board that is designed to rationalize the defunding and the interference with the 

Board’s independence by illegitimizing the agency. 

Mr. Yager says that the only issue that seems to count in a dispute before the general counsel and the Board is, how can the interests of the union involved be enhanced by the agency? And while 

that rhetoric is powerful, the specific charges lack any basis in fact. 

Let me just give you a few quick examples. 

The LPA claims that the general counsel’s office cares more 

about furthering the interest of the union, but in fact the general 

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counsel is dismissing upwards of 65 percent of the charges filed 

with him, three-quarters of which are filed by unions and employees, and this is the same percentage roughly as was true under the 

Reagan and Bush Boards and before that. 

Second, while the LPA accuses the Board of making Herculean 

efforts of finding employer violations to overturn elections when 

unions lose, in fact those objections continue to be overruled in 75 

to 80 percent of all cases; again, the same percentage as under the 

Reagan and Bush Boards and the Boards before that. 

Third, the LPA claims that where employees have rejected a 

union in an election, the Board has simply ordered the union to 

bargain with the union anyway by making bargaining orders a 

common tool, and there have been a lot of unfair labor practices 

during the campaign. But, in fact, the Gould Board has issued an 

average of 8.4 such orders per year, which is a rate which is a third 

below that of the Reagan and Bush Boards were issuing bargaining 

orders at, a fact that is not mentioned by the LPA or the business 

community that now complains so loudly about these bargaining 

orders. 

Fourth, the LPA claims that the Gould Board has been the worst 

performer of any board in the past 30 years of securing enforcement of its decisions in the courts of appeals. But if you use the 

LPA’s own definition of wins and full wins, partial wins, partial 

losses, and so on, the Board’s win rate in fiscal year 1996 was 78.6 

percent and in the first 9 months of fiscal 1997 was 79.7 percent, 

which perfectly tracks the Board’s historical rate of 79.4 percent 

under the Bush-Reagan years and before. 

None of this is meant to say that—and I would just point out 

that the three new cases that Mr. Yager relates in his testimony 

this morning as examples where courts of appeals overturned the 

Labor Board recently are cases which in one case was initiated by 

General Counsel Hunter, Republican general counsel; in one case 

joined by Board Member Cohen in a unanimous decision that included the Republican member of the Board; and in the third 

case——

Mr. SHAYS. I don’t understand when you say—what was unanimous? The Board had a unanimous decision and then they went 

and asked the court to overturn a case they had ruled the other 

way around? 

Mr. HIATT. The Board sought enforcement in the Court of Appeals. 

Mr. SHAYS. Right, right, right. 

Mr. HIATT. Or the losing party sought to overturn the Board’s decision, either of which is a common way of getting to the Court of 

Appeals. And those were indeed three cases where the particular 

courts took the Labor Board to task. That happens about 20 percent of the time, but it always has. It happened in the ReaganBush Board years, it happened before that, and the three examples 

that are given today where a particular court of appeals got particularly impatient with the Labor Board were cases that were either initiated before Gould-Feinstein came along or were joined by 

Republican members of the Board. 

Finally, the examples of cases that are cited now that the LPA 

says, well, you can’t just look at the statistical analysis, you have 

228

to also look at the quality of the decisions, and so a number of 

cases very selectively—in the book that Mr. Yager has provided the 

committee in the past and in today’s testimony, very selectively 

parts of a few cases are used to mock the Board’s case handling 

today, the kinds of decisions that are coming out today. 

So, for example, this forgery case that Mr. Yager refers to in his 

testimony today is a great example of that. It sounds terrible. It 

sounds like the Board is approving forged authorization cards. But 

if you look at the facts of this case, what happened is that there 

were 131 people in the unit; 100 of them had signed authorization 

cards. Under the Board’s rules, all that was needed was 30 percent, 

and a handful were allegedly forged cards. The employer wasn’t 

even able to prove that they were forged, but the Board said, even 

if those few were, that is irrelevant, you have gotten way more 

than the 30 percent, you are entitled to a secret ballot election, 

which is where you can really test employee sentiment anyway. 

So we will supplement the record, if we may, with respect to the 

cases that were provided, as we did last year. The handful of cases 

that are provided to make a mockery of the way the Board is now 

deciding cases, we submit, gives a very, very unfair and one-sided 

opinion. And what is new, we submit, is not that the performance 

of the Board—is not the performance of the Board itself but of 

these tactics of some Members of Congress, not this committee, and 

some significant sectors of the management community to 

delegitimize and destabilize the agency, and those destructive efforts, rather than the record of the Board itself, are indeed most 

sorely in need of your committee’s attention. 

And I thank you for the opportunity. 

[The prepared statement of Mr. Hiatt follows:]

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Mr. SHAYS. I thank you for you being here. It’s nice to have your 

testimony. 

When I look at my understanding of the numbers of requests by 

the Board for 10(j) relief, in 1995—I hope this is a complete year—

there were 47 requests, and—oh, it is partial. So let me take 1994. 

In 1994, there were 85 requests and 62 petitions filed. In 1993, 

there were 42 and 34. 

When would the Gould Board have been set up? They would 

have been there in the 42 and 34, I believe. 

Mr. YAGER. No; they came in in April of fiscal year 1994. 

Mr. HIATT. March 1994. 

Mr. SHAYS. I honestly don’t see all that much difference. Admittedly, in 1994 there were 85 and 62 petitions filed, but in 1993 

there were 42 and 34 petitions; and 1992, 27 and 24 petitions. So 

why don’t we just start with that, and tell me—actually, I want to 

put on record something. 

I am going to take your first point, Mr. Yager. It seems logical 

to me that if you can bypass a court system and go directly to a 

Board, and hopefully resolve the case, to me, it seems more logical 

than going directly to court. 

Let me ask you the first thing. How many of the cases that the 

Board decides are actually then furthered to the courts? What percentage? 

Mr. YAGER. Of cases that are actually decided by the Board? 

Mr. SHAYS. Once the Board has made a decision. 

Any of you? 

Mr. YAGER. I can find that for you, Congressman. 

Mr. SHAYS. Would we say it is 50 percent; 20 percent? 

Mr. YAGER. It would be my guess on the 50 percent. 

Mr. HIATT. No; I think it is closer to 20 percent. It is a relatively 

small percent. Most of the cases are not appealed by either the—

by the losing party, nor does the Board need to go to court for enforcement, because they are complied with in the majority of cases. 

Mr. SHAYS. But my judgment is, any time you can reduce the 

number of cases that go before the courts, you would want to. But 

what I don’t understand is that it would strike me, however, that 

if a case is pending for more than a period of time, that you would 

almost automatically want to go right to the courts. There would 

be a mechanism that would enable either side to petition to say 

this is just taking too long, we want to go directly to the courts. 

What would be the response of any of the three of you? 

Mr. YAGER. Well, I think there have been suggestions in the past 

as part of labor law reform to do something like that, but it’s more 

along the lines of obtaining something like an injunction; in other 

words, injunctive relief in the interim for the grieving party until 

the Board has actually ruled on the case. 

We obviously would have a problem with that. And that is our 

problem with 10(j)’s; you don’t get a full adjudication of the matter 

before the Federal court. If what you are suggesting instead is a 

mechanism whereby the case goes to the court and it is fully litigated before the Federal court, I think that is a step in the same 

kind of direction that we are suggesting. 

Mr. SHAYS. My suggestion is that if the Board doesn’t reach a decision by a period of time, that either party would have the ability 

247

to go to court and fully adjudicate. It would seem to me that that 

might be a solution to both sides. There is nothing that tells me 

that being in court—being before the Board 6 years is a benefit to 

labor or management. I think it is a plague on both houses. 

Mr. Joseph, why don’t you respond, and Mr. Hiatt, and then we 

will come back. 

Mr. JOSEPH. I think we need to rethink why we are here. We are 

here because 65 years ago you had 37 percent of the work force in 

unions and you had very tricky legal issues that it was presumed 

that judges in general would not understand. And so this kind of 

specialized body was set up, allegedly with the expertise to be able 

to wade through the negotiated contracts to determine who really 

struck John and who is entitled to this or that. And you have an 

OSHA review commission, you have a number of specialized 

groups, because the assumption was, the generalized bench 

couldn’t figure it out. 

Now you have 90 percent of employees not in union settings and 

the courts handling all sorts of court-related issues, some judges to 

the point of saying it is overwhelming, how many they get. 

And I am not trying to suggest just do away with this and continue to burden the courts with everything else, but I do think that 

there needs to be a serious academic discussion about the relationship of all the labor laws and all of the potential enforcement 

mechanisms and how they are done. 

Mr. SHAYS. I hear you have made that point, and I am asking 

you to look at an incremental issue here. I know that you have 

your desire to make major reform of the system. But would that 

be an improvement to both sides to allow that if they were before 

the NLRB and the NLRB simply hadn’t acted by a particular period of time—a year, 2 years, 3 years—some particular period of 

time, that either side would have the right to go to court directly 

and not wait? 

Mr. JOSEPH. I can’t subscribe to a specific period of time, but I 

can confirm what you said. We have heard businesspeople saying 

for years that these long, protracted proceedings do not benefit 

them. 

Mr. SHAYS. So you are saying that you can’t speak for the Chamber on an issue like this? 

Mr. JOSEPH. Because we haven’t taken a specific position, unlike 

my colleague here. 

Mr. SHAYS. So you can speak on total reform, but you can’t speak 

on this particular issue here? 

Mr. JOSEPH. That’s right. 

Mr. HIATT. We would certainly be interested in discussing with 

the business community and with any committee whether there 

could be some kind of procedural reforms that could help speed 

things up. I think there would have to be a number of questions 

that would have to be discussed as part of that. 

For example, if moving to court simply then meant the beginning 

of a new round of delays there, I mean, in our experience, the 

courts are as—as bad as things are at the Board, the time it takes 

to process the cases through courts can be even worse. And, furthermore, once you get to court under that kind of a procedure, 

does that mean that the full range of formal discovery applies, or 

248

do you still have what is really a much more informal and, in some 

ways, more economical system at the Board? 

There is no private right of action right now under the NLRA. 

It is easy to forget this is not just unions and employers that are 

using the NLRB. A large proportion of the charges that are filed 

are brought by individual workers in nonunion facilities, as well as 

unionized facilities, who do not have representation, and particularly in low-wage jobs——

Mr. SHAYS. Tell me how it works for nonunion. I have made the 

assumption—I’m exposing my ignorance—that most of the cases 

that are adjudicated by the Board are representative cases. 

Mr. HIATT. I think a majority are, but there is a large minority, 

somewhere between 25 and 50 percent, I believe, of cases are filed 

by individual employees, and in many cases they are just as protected against—under the National Labor Relations Act as a union 

employee is against retaliation for organizing activities or any kind 

of concerted protest. If two workers go to the boss and complain 

about something and get fired, even if there is no union in the picture, that is the one law where they have protection. They go to 

the Labor Board, and they file charges. 

And unlike under wage and hour laws or title VII, there is no 

private right of action. They are totally dependent on this agency 

to investigate that case and, if there is merit to it, to process that 

case. They could not, as it now stands, go to court on their own. 

Mr. SHAYS. One of your points would be that there is a record 

developed in the Board proceeding that then the court makes a determination so they don’t—they basically have a transcript and a 

record to pass judgment on? 

Mr. HIATT. That might be one way—I mean, if you took—I am 

sure you could talk about taking the proceedings and the investigation as it developed through a certain point at the Board and saying that if the Board hadn’t concluded, that there should be some 

access to the courts, and I think that would be worth talking about. 

But I think that there are—it does raise, as you suggest, a number of issues about how much of the record then already applies, 

depending on what stage you are at: Is there formal discovery that 

starts over again, and so forth, is what we would have to explore. 

I do find it somewhat ironic that 3 years ago, when we would 

have loved to have a discussion of necessary reforms under both 

the law and procedure, there was no interest whatsoever, and now 

that you are finding a little bit more energy in seeking injunctive 

relief and——

Mr. SHAYS. Is that when this was a Democrat-controlled Congress and a Democrat President? 

Mr. HIATT. Yes. 

Mr. SHAYS. The irony is, I remember when I was in the Statehouse and we wanted to repeal the dividends tax as Republicans 

in the minority, and when we got into the majority, we decided 

what we wanted to do was, we wanted to reduce the sales tax on 

clothing and a whole host of other things, and we forgot about the 

dividends tax. And as soon as we were defeated and were now in 

the minority again, someone said, hey, the first thing we should do 

is repeal the dividends tax. 

249

This may be a parenthetical that really may seem like another 

question mark not directly related to what we are talking about, 

but when you talk about—let me just establish this point. My understanding was that, basically, NLRB was looking at collective 

bargaining units and dealt with employees who were part of a collective bargaining unit. And that is not correct. This is any employee? 

Mr. HIATT. That is right. It is not limited to collective bargaining 

employees. 

Mr. SHAYS. It tends to be individuals that are in collective bargaining units? 

Mr. HIATT. Certainly a disproportionate number of employees, of 

disputes, that come before the Board do involve unionized employees, but the law itself is not so limited and use of the Board is not 

so limited. 

Mr. SHAYS. One of my theories about why you have a decline in 

the enrollment in some cases in unions is, obviously, smaller businesses. You have seen the greatest growth in the public sector. 

What you didn’t see on the bargaining table sometimes happens 

through legislation. And now it seems to me that a lot of the argument for why some people were going to join unions you have put 

into law with so many protections. And I am basically then leading 

to this question of your description of what existed 60 years ago 

and what exists today. 

I think it was you, Mr. Yager, or Mr. Joseph, was talking about 

the fact that collective bargaining is a very changed process and 

more institutionalized. I would like you to elaborate a little bit 

more on that, and therefore—Mr. Yager, was it you? 

Mr. YAGER. I can comment. I don’t believe it was my remarks. 

Mr. SHAYS. I heard the argument—and I am sorry—that we don’t 

need the Board, and I guess I was thinking—I was going to interrupt you, and say for me, if I could take it out of the courts, I want 

it in the Board in a more informal process, tell me what would be 

the effect if you didn’t have the NLRB. 

Mr. JOSEPH. Well, you have, as I described—I mean the facts of 

life are that the majority of people today are working for small 

businesses. Now if there is a work unit of 5 or 10, what is happening in the general sense that—that to your point, Mr. Chairman, a lot of the employee benefits that the unions requested 10, 

20, 30, 40 years ago are all standard package today; there are obligations that every employer must provide for the good of the individual, for the good of the country, for the good of the economy; 

and, by and large, it’s competitive pressures in the global marketplace that determine what any employer and employee end up with 

in terms of piece of the pie after all is said and done. 

The fact that you have a smaller percentage every year of people 

who are actually covered by union agreements means that if that 

continues over some period of time, you will continue to have a minority legal system, a minority legal structure, for a growing percentage of people in the workplace. And just with regard to, by and 

large, union organizing or representational or trying to do representational kinds of activities, other disputes go on elsewhere, 

safety disputes are elsewhere, affirmative action or sexual discrimination or whatever. 

250

So it goes to my general point. If every agency that affects labormanagement relations in the workplace is left to itself and its respective oversight body to think just singularly what to do with it, 

you are still going to end up with a dysfunctional system where 

employees and employers are still playing different games. And depending on what the nature of the dispute is, it’s a different process, a different procedure, different hoops; it is a different kind of 

thing. 

And I don’t know why we couldn’t, in the broadest possible sense, 

you know, have some sort of intellectual, serious discussion about 

how to put all the employment laws and practices on the table and 

talk about what makes sense for the 21st century. 

We don’t have to have this confrontational atmosphere that was 

rooted in the laws in the thirties. We are very much in a competitive global world marketplace, and I think that not only do employers know that but the average employee knows that, whether they 

are in a union workplace or in a nonunion workplace. And so 

against this, I think that the possibility of having serious discussion about change is something that could be framed in an apolitical way: What is the best way just to restructure how we handle 

disputes and grievances in the 21st century? 

Mr. SHAYS. Mr. Yager, do you want to respond? 

Mr. YAGER. Well, I think just going back to the focus of the hearing on NLRB, clearly the importance of the NLRB has declined. 

Notwithstanding that there are charges filed from nonunion settings, the vast majority of the time the law is being applied in a 

situation where a union is either already in place or is attempting 

to organize that setting. To have this kind of elaborate structure and pay $170 million a 

year or whatever it costs to continue to fund the agency at a time 

when you know interest in unionization is declining, the law is 

pretty well fleshed out. By the way responding to something Mr. 

Hiatt said, our disagreement with them several years ago when 

they were proposing changes was them using the law as an excuse 

for a failure of unionization. 

We have always asserted that the basic principles of the law are 

there and, really, unionization is a product of employee choice. I 

would agree with you. I think to a large extent they have legislated 

themselves out of existence by providing things like family and 

medical leave, pension protections under ERISA, Occupational 

Safety and Health Act. These days, why would you need to go to 

a shop steward when, in fact, most of the time you can take your 

case to either a government official or to a plaintiff’s attorney? 

Mr. SHAYS. Mr. Hiatt, do you remember the question? 

Mr. HIATT. I believe so. 

Mr. SHAYS. The whole issue is just, tell me why the Board—I 

mean, I was expressing an opinion why I felt that so much is in 

legislation now that one of the strong selling points earlier on for 

unions—but that was really a side to the key point, which is: Is the 

Board still really relevant? 

Mr. HIATT. Right. And I think if the Board—if the functions of 

the Board weren’t housed at the Board, they would have to be 

housed somewhere else. One can devise—one can imagine transferring them to the Federal courts and transferring the costs of disVerDate jul 14 2003 13:37 Jan 20, 2004 Jkt 010199 PO 00000 Frm 00254 Fmt 6633 Sfmt 6602 W:\DISC\46442 46442
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pute resolution to private parties, taking that $170 million that is 

right now spent on the government and saying that private parties, 

including from your lowest wage individual employee who’s fired 

for trying to join a union, to employers who believe that there is 

violence on picket lines, should be paying the cost of that kind of 

dispute resolution themselves. 

And that is a fair debate to be having. But the notion that that 

$170 million cost would go away and it wouldn’t be needed anymore because we are approaching the 21st century or because there 

is no Labor Board, I just don’t think there’s any basis for saying 

that. 

Sure, there are many laws on the books, employment laws that 

provide a statutory floor now, be it economic floor like minimum 

wage and family and medical leave, or other kinds of employment 

regulation. But there is still only one law that governs the right of 

employees to join together to be able to negotiate with their employers their basic working conditions, and in some cases that may 

involve a desire to get paid more than minimum wage. 

And let’s not forget that the National Labor Relations Act and 

the Fair Labor Standards Act that set a minimum wage were 

passed roughly at the same time. It was recognized that there 

would be these minimum floor statutes but, at the same time, that 

there was a proper place for workers to negotiate either for better 

conditions than the minimum, the statutory minimums, or for 

other things that are not addressed in the laws. 

And this is, the National Labor Relations Act, with all its 

faults—and we certainly agree that it could be improved—is the 

only law that ensures some degree of democracy in the workplace, 

some ability of workers to organize themselves together to have a 

voice, an effective voice, with the employer. 

And I think in a time when you are seeing that one out of every 

four organizing campaigns, at least one worker who takes a lead 

role in trying to have a union is fired, according to what is proven. 

I am not talking about charges that are dismissed—and in many 

of those cases it is more than one who is fired for trying to have 

a union—to think that there is no longer a need for some kind of 

government regulation about right to organize is just totally unrealistic. 

Mr. SHAYS. One of the amazing things is that it’s only been recently that we allowed employees in this Congress to organize and 

we are still debating the issue of whether our own staff can. And 

whether you all agree with allowing for organization—and I think 

you do to some measure—that is not the issue. 

What is amazing to me is that Congress for so many years was 

able to say that somebody else had to do it, but we didn’t have to. 

And it has been a very important thing for me to have to pay my 

employee time-and-a-half who may not be in a supervisory role. 

And in some cases I think that it has been educational, because 

that has helped us want to look at time-and-a-half off rather than 

time-and-a-half with pay. 

So in some way it works to those who don’t want to see collective 

bargaining having us have to live under it. We say, gosh, it is not 

as easy as you say. And some ways it works to those who want to 

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have collective bargaining to make sure that we understand how 

the law works and that we live under it. 

I am just going to ask one other question, and then, Cherri 

Branson, I am going to invite you to ask some questions since I am 

the only Member here. 

I will say to you, Mr. Hiatt, that I wish I had—because I kind 

of remember thinking about—I mean, I remember thinking a little 

bit uncomfortable—it wasn’t you, Mr. Hiatt. 

Mr. Joseph. I apologize. You raised a question referring to the 

Board as the Clinton administration Board or the Clinton Board. 

I should believe that this—the NLRB is a true judicial body that 

is supposed to be fair to all sides. Do you think that Mr. Gould 

should be a little more careful in terms of how he refers to his 

Board? Do you think it is inappropriate to refer to it as the Clinton 

Board? 

Mr. HIATT. If you are asking me, I have to confess that until Mr. 

Joseph pointed out that Mr. Gould had referred to it as a Clinton 

Board, I hadn’t noticed it. I assumed that he was referring to the 

appointing officer, who in his case is President Clinton. 

I don’t believe there is any evidence whatsoever that this Board, 

this Labor Board, has acted any more at the behest of the appointing administration than any other Board in our history that I am 

aware of. 

Mr. SHAYS. Since I didn’t ask him, I feel a little—I am acknowledging I really probably should have asked him to respond. I hope 

his answer would be that we want you to know what we have done 

since I have been in charge in terms of moving cases or not moving 

cases. But I do think it probably is unwise for him to make reference to a Board as being a Clinton Board as opposed to a Reagan 

Board or a Bush Board. 

Mr. JOSEPH. Mr. Shays, I have heard him use the phrase a number of times. I see him wear it as a badge of honor. 

Mr. SHAYS. People should be proud of the work that they have 

done, but I am having to say that I will raise that question with 

him in a letter, not making a big deal out of it in terms of other 

than to just say that I think he may need to rethink that. 

Ms. Branson. 

Ms. BRANSON. Thank you, Mr. Chairman. I just have one—well, 

actually I have one. 

Mr. SHAYS. You have about 5 minutes. 

Ms. BRANSON. There was an idea earlier about sort of a process 

where the Board could, or someone could, issue a letter to kick 

loose a claim after a certain amount of time. I would like to point 

out to the chairman that the EEOC does that and their backlog has 

not been significantly reduced. As a matter of fact, GAO has recently chided them for that. 

For Mr. Hiatt, some people have said that the controversy surrounding the Board has to do with the change in the post-industrial service economy where competition is worldwide. Can you tell 

me whether the Board—excuse me. Can you tell me whether you 

believe that the economy plays a role in the controversy that currently surrounds the Board? 

Mr. HIATT. I think it certainly does. There is no question. There 

are a number of factors that have affected the application of our 

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labor laws and the labor movement and employees’ relationship 

with unions, and the global economy is unquestionably one of those 

factors. 

But I do not believe that that in any way makes either the Labor 

Board or the act obsolete. What it does is, it changes the kinds of 

issues and concerns that workers have. More often, workers are 

seeking to negotiate on the threats that are posed by international 

competition, and in some cases that means holding up job security 

issues and plant closing issues and issues like that that certainly 

are not covered by any of the minimum floor statutes on the books, 

and, if anything, it just makes it all the more important that workers who do want to have some independent voice in the workplace 

and want independent representation should have that opportunity. And until we have a better system, I think it is irresponsible to be advocating the destruction of the existing one. 

Ms. BRANSON. Thank you, Mr. Chairman. 

Mr. SHAYS. Do you want to comment? 

Mr. YAGER. If I could ask just a request. 

Mr. SHAYS. Not on the question? Just to ask—are you responding 

to the question just asked? 

Mr. YAGER. No, I’m not. I am sorry. 

Mr. SHAYS. I am going to invite any of the three of you to respond, if there was a question that you wished I had asked you 

that you wanted to discuss. And if there is any closing comment 

you want to make. 

And if you want to start, Mr. Yager, you may. 

Mr. YAGER. Yeah, I guess I would just go back to the original 

point. Clearly, you have got a law that was written 60 years ago 

and it is a struggle to keep it up with the changing economy. Part 

of the problem that we have with the Board is that it has gotten 

very calcified and very myopic. There is an inability on the Board 

to look at the law in view of the changes. We saw that with the 

Electromation case that treats employee involvement committees 

the same way they treat illegal, sham company unions. 

You are more likely to get administration of the act and enforcement of the act with a broader perspective than if you do start 

looking more to the courts, which, as I say, the parties are inclined 

to do. 

I would like to ask—I didn’t want to take the time of the committee to respond to each of the points that Mr. Hiatt made with 

some of the cases that we raised in our book and the statistics. 

Mr. SHAYS. The record is open if you are wondering if you can 

respond to any comments made. 

Mr. YAGER. I would like to do that in writing. I just didn’t want 

silence to be viewed as assent. 

Mr. SHAYS. No, it isn’t. It is actually welcomed. 

Mr. YAGER. I thought it probably was. That is why I decided. 

Mr. SHAYS. Only because of the time. 

The record is open Friday, Monday, and Tuesday? So at the end 

of Tuesday, you need to respond. 

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Mr. SHAYS. Mr. Joseph. 

Mr. JOSEPH. Just appreciate the opportunity to be here, and we 

appreciate your willingness to look into the Board. 

Mr. SHAYS. Well, we are happy to look into this issue and the 

Board. And we are troubled by some things we see and know that 

it is a factor of many things, but we are going to do our job and 

look at this Board and see how we can make it work better. 

Mr. Hiatt. 

Mr. HIATT. Thank you, Mr. Chairman. I feel like I am in a ‘‘Jeopardy’’ situation that I have to think, you know, what answer I want 

to give. So I have to tell you what the question is that I wish you 

had asked. 

I guess the only other point that I would like to make is that I 

think when we have these kinds of hearings—and this has certainly been a great deal less confrontational than some of the other 

hearings on the subject of the NLRB in the past couple of years. 

But when we do have these kinds of hearings, we lose track of the 

fact that some 95 to 98 percent of the functions that the Labor 

Board does do on a day-in-day-out basis on behalf of individual 

workers, unions and employers is not really in controversy at all. 

One of the points that Mr. Yager made in his testimony, I believe 

at one point, is that a current Republican member of the Labor 

Board has agreed with the Democratic members 97 percent of the 

cases, and that is probably not atypical. It may be a little higher, 

because this three-member Board has not been taking very many 

controversial cases lately. But even at times when there are a number of controversial cases, the percentage of cases where the Board 

members who are appointed by Republicans and Democrats and 

where the business community and labor community would see the 

outcome exactly the same way and the procedures exactly the same 

way is extraordinarily high. 

And I think it is important to not lose sight of that, because the 

average worker on the average day has a great deal at stake in just 

having the regular functions of the Labor Board at their disposal. 

And I appreciate this opportunity, and we would be more than 

happy to work with you on any followup where you give us that 

opportunity. 

Mr. SHAYS. We will definitely have followup, and we look forward 

to working with all of you and thank you again for spending basically your whole day on this hearing. And thank you very much. 

And at this time, we adjourn. 

[Whereupon, at 4:53 p.m., the subcommittee was adjourned.]

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