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S. HRG. 110–416

THE NATIONAL LABOR RELATIONS

BOARD: RECENT DECISIONS AND

THEIR IMPACT ON WORKERS’ RIGHTS

JOINT HEARING

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR AND PENSIONS 

COMMITTEE ON 

EDUCATION AND LABOR

U.S. HOUSE OF REPRESENTATIVES

EMPLOYMENT AND WORKPLACE 

SAFETY SUBCOMMITTEE 

COMMITTEE ON HEALTH, 

EDUCATION, LABOR AND PENSIONS

U.S. SENATE

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

HEARING HELD IN WASHINGTON, DC, DECEMBER 13, 2007

Serial No. 110–73

Printed for the use of the House Committee on Education and Labor

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

(

Available on the Internet: 

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

(II)

COMMITTEE ON EDUCATION AND LABOR 

GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice Chairman 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Danny K. Davis, Illinois 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

Linda T. Sa ́nchez, California 

John P. Sarbanes, Maryland 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Mazie Hirono, Hawaii 

Jason Altmire, Pennsylvania 

John A. Yarmuth, Kentucky 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

Carol Shea-Porter, New Hampshire 

Howard P. ‘‘Buck’’ McKeon, California, 

Senior Republican Member 

Thomas E. Petri, Wisconsin 

Peter Hoekstra, Michigan 

Michael N. Castle, Delaware 

Mark E. Souder, Indiana 

Vernon J. Ehlers, Michigan 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Ric Keller, Florida 

Joe Wilson, South Carolina 

John Kline, Minnesota 

Cathy McMorris Rodgers, Washington 

Kenny Marchant, Texas 

Tom Price, Georgia 

Luis G. Fortun ̃ o, Puerto Rico 

Charles W. Boustany, Jr., Louisiana 

Virginia Foxx, North Carolina 

John R. ‘‘Randy’’ Kuhl, Jr., New York 

Rob Bishop, Utah 

David Davis, Tennessee 

Timothy Walberg, Michigan 

Dean Heller, Nevada

Mark Zuckerman, Staff Director 

Vic Klatt, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS 

ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California 

Dale E. Kildee, Michigan 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Linda T. Sa ́nchez, California 

Joe Sestak, Pennsylvania 

David Loebsack, Iowa 

Phil Hare, Illinois 

Yvette D. Clarke, New York 

Joe Courtney, Connecticut 

John Kline, Minnesota, 

Ranking Minority Member 

Howard P. ‘‘Buck’’ McKeon, California 

Kenny Marchant, Texas 

Charles W. Boustany, Jr., Louisiana 

David Davis, Tennessee 

Peter Hoekstra, Michigan 

Cathy McMorris Rodgers, Washington 

Tom Price, Georgia 

Virginia Foxx, North Carolina 

Timothy Walberg, Michigan 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

EDWARD M. KENNEDY, Massachusetts, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

JEFF BINGAMAN, New Mexico 

PATTY MURRAY, Washington 

JACK REED, Rhode Island 

HILLARY RODHAM CLINTON, New York 

BARACK OBAMA, Illinois 

BERNARD SANDERS (I), Vermont 

SHERROD BROWN, Ohio 

MICHAEL B. ENZI, Wyoming 

JUDD GREGG, New Hampshire 

LAMAR ALEXANDER, Tennessee 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

LISA MURKOWSKI, Alaska 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

WAYNE ALLARD, Colorado 

TOM COBURN, M.D., Oklahoma 

J. MICHAEL MYERS, Staff Director and Chief Counsel 

KATHERINE BRUNETT MCGUIRE, Minority Staff Director 

SUBCOMMITTEE ON EMPLOYMENT AND WORKPLACE SAFETY

PATTY MURRAY, Washington, Chairman 

CHRISTOPHER J. DODD, Connecticut 

TOM HARKIN, Iowa 

BARBARA A. MIKULSKI, Maryland 

HILLARY RODHAM CLINTON, New York 

BARACK OBAMA, Illinois 

SHERROD BROWN, Ohio 

EDWARD M. KENNEDY, Massachusetts (ex 

officio) 

JOHNNY ISAKSON, Georgia 

RICHARD BURR, North Carolina 

LISA MURKOWSKI, Alaska 

PAT ROBERTS, Kansas 

WAYNE ALLARD, Colorado 

TOM COBURN, M.D., Oklahoma 

MICHAEL B. ENZI, Wyoming (ex officio) 

WILLIAM KAMELA, Staff Director 

GLEE SMITH, Minority Staff Director

(III) 

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C O N T E N T S 

Page

Hearing held on December 13, 2007 ...................................................................... 1

Statement of Members: 

Andrews, Hon. Robert E., Chairman, Subcommittee on Health, Employment, Labor and Pensions ............................................................................ 3

Prepared statement of ............................................................................... 4

Kline, Hon. John, Ranking Republican, Subcommittee on Health, Employment, Labor and Pensions ............................................................................ 4

Prepared statement of ............................................................................... 6

Additonal submissions: 

Statement of the Associated Builders and Contractors .................. 8

Letter from the U.S. Chamber of Commerce ................................... 12

Miller, Hon. George, Chairman, Committee on Education and Labor ......... 2

Prepared statement of ............................................................................... 2

Sa ́nchez, Hon. Linda T., a Representative in Congress from the State 

of California, prepared statement of ........................................................... 122

Statement of Senators: 

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New 

York, prepared statement of ........................................................................ 123

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia, prepared 

statement of ................................................................................................... 25

Kennedy, Hon. Edward M., Chairman, Committee on Health, Education, 

Labor, and Pensions ..................................................................................... 15

Murray, Hon. Patty, Chairman, Subcommittee on Employment and Workplace Safety, prepared statement of ............................................................ 65

Letter, dated December 12, 2007, from various legal scholars .............. 66

Statement of Witnesses: 

Battista, Hon. Robert J., Chairman, National Labor Relations Board ........ 16

Prepared statement of ............................................................................... 18

Cohen, Charles I., partner, Morgan, Lewis & Bockius LLP ......................... 98

Prepared statement of ............................................................................... 99

Finkin, Matthew W., Harno-Cleary chair in law, University of Illinois 

College of Law ............................................................................................... 88

Prepared statement of ............................................................................... 89

Hiatt, Jonathan P., general counsel, American Federation of Labor and 

Congress of Industrial Organizations (AFL–CIO) ...................................... 102

Prepared statement of ............................................................................... 103

Liebman, Hon. Wilma B., Member, National Labor Relations Board .......... 26

Prepared statement of ............................................................................... 28

Additional submission ............................................................................... 39

Ryland, Feliza, member, UNITE HERE ......................................................... 95

Prepared statement of ............................................................................... 97

(1)

THE NATIONAL LABOR RELATIONS

BOARD: RECENT DECISIONS AND 

THEIR IMPACT ON WORKERS’ RIGHTS 

Thursday, December 13, 2007

U.S. House of Representatives 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and Labor 

U.S. Senate 

Employment and Workplace Safety Subcommittee 

Committee on Health, Education, Labor and Pensions 

Washington, DC

The subcommittees met, pursuant to call, at 10:01 a.m., in room 

2175, Rayburn House Office Building, Hon. Robert Andrews [chairman of the House subcommittee] presiding. 

Representatives present: Andrews, Miller, Kildee, Tierney, Wu, 

Holt, Loebsack, Hare, Clarke, Kline, McKeon, Boustany, Davis of 

Tennessee, Price, Foxx, and Walberg. 

Senators present: Brown, Kennedy, and Isakson. 

Staff present: Aaron Albright, Press Secretary; Tylease Alli, 

Hearing Clerk; Jordan Barab, Health/Safety Professional; Chris 

Brown, Labor Policy Advisor; Jody Calemine, Labor Policy Deputy 

Director; Carlos Fenwick, Policy Advisor for Subcommittee on 

Health, Employment, Labor and Pensions; Michael Gaffin, Staff 

Assistant, Labor; Brian Kennedy, General Counsel; Thomas Kiley, 

Communications Director; Ann-Frances Lambert, Administrative 

Assistant to Director of Education Policy; Sara Lonardo, Staff Assistant; Joe Novotny, Chief Clerk; Megan O’Reilly, Labor Policy Advisor; Michele Varnhagen, Labor Policy Director; Mark Zuckerman, 

Staff Director; Robert Borden, General Counsel; Cameron Coursen, 

Assistant Communications Director; Ed Gilroy, Director of Workforce Policy; Rob Gregg, Legislative Assistant; Richard Hoar, Professional Staff Member; Victor Klatt, Staff Director; Alexa Marrero, 

Communications Director; Lindsey Mask, Director of Outreach; Jim 

Paretti, Workforce Policy Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Linda Stevens, Chief Clerk/Assistant to the General Counsel; Loren Sweatt, Professional Staff Member; Partia Wu, Chief of Labor Policy (Senate HELP); William 

Kamela, WES Staff Director; Crystal Bridgeman, Professional 

Staff; Michael Waske, Professional Staff; Kaitlin Helms, Intern; 

and Sharon Block, Labor and Employment Counsel (Senate HELP). 

2

Chairman ANDREWS [presiding]. Ladies and gentlemen, the subcommittee will come to order. We would ask for your attention. 

Good morning, ladies and gentlemen. We appreciate your participation this morning. I am going to begin by yielding to the chairman of the Committee on Education and Labor for an opening 

statement. I will then take any time that remains on his 5 minutes, then we will turn to my friend, Mr. Kline. 

Chairman? 

Mr. MILLER. I won’t use more than 30 seconds. Thank you very 

much, Mr. Chairman, for holding this hearing and to Senator Murray for joining us in this joint hearing. 

The rights that we are going to discuss this morning in this hearing, the right to join together and collectively bargain for a better 

deal and the fundamental rights at the workplace, are absolutely 

just fundamental human rights. And these rights are enshrined in 

the National Labor Relations Act whose purpose is clear: protecting 

workers’ full freedom of association and encouraging collective bargaining. 

When those rights are undermined, it makes it harder for all 

Americans to get a fair share of the benefits of their productivity. 

It weakens and shrinks our middle class, and it makes our economy more unequal and less stable. And that is what is at stake 

when the National Labor Relations Board makes national labor 

policy. And that is why it is so important that this Congress pay 

close attention to the board’s activities. 

The board’s recent decision to, among other things, make it less 

costly for employers to unlawfully fire union supporters or more 

difficult for workers to freely organize a union are deeply disturbing and an indication that the board has not just veered from 

its mission, but is now driving in the opposite direction of the 

rights that Congress ordered the board to enforce. 

And I want to applaud you again for holding this hearing and 

Senator Murray. I know this is a difficult schedule coming here at 

the end of this session of this Congress. But I think it is important 

that we start building this record so that we can once again guarantee these basic and fundamental rights. Thank you. 

[The statement of Mr. Miller follows:]

Prepared Statement of Hon. George Miller, Chairman, Committee on 

Education and Labor 

Workers’ rights have been under near-constant assault in the years since the start 

of the Bush administration. 

We see it in a Supreme Court led by Bush appointees who hand down decisions 

that make it harder for workers to get justice when they are the victims of workplace discrimination. We see it in a highly politicized Labor Department that acts 

like an arm of the far right, each day looking for new ways to undermine workers’ 

rights and workers’ organizations. 

And we see it in the anti-worker agenda of the National Labor Relations Board. 

Over the last several years, brick by brick, the NLRB has worked to dismantle the 

foundation of workers’ rights in this country—the right to organize. 

The rights of workers to join together and bargain collectively for a better deal 

are fundamental human rights. These rights are enshrined in the National Labor 

Relations Act, the purpose of which is clear: to protect workers’ full freedom of association and encourage collective bargaining. 

When those rights are undermined, it makes it harder for all Americans to get 

their fair share of the benefits of their productivity. It weakens and shrinks our 

middle class. It makes our economy more unequal and less stable. 

3

That’s what’s at stake when the National Labor Relations Board makes national 

labor policy. And that’s why it is so important that this Congress pay close attention 

to the Board’s activities. The Board’s recent decisions to, among other things, make 

it less costly for employers to unlawfully fire union supporters or more difficult for 

workers to freely organize a union are deeply disturbing—an indication that the 

Board has not just veered far from its mission but is now driving in the opposite 

direction of the rights that Congress ordered the Board to enforce. 

I applaud Chairman Andrews and Chairwoman Murray for holding this important 

hearing today, and I look forward to hearing the testimony. 

Thank you. 

Chairman ANDREWS. Thank you, Mr. Chairman. I would like to 

welcome all the witnesses and thank them for their participation 

here this morning. 

You know, there is a difference between controversial decisions 

borne out of legal ambiguity and decisions that I think subvert the 

purpose of public policy that are borne out of an ideological agenda. 

One of the questions before us this morning is to whether the recent spate of decisions, 61 of them, by the board in September is 

more fairly characterized as controversial decisions flowing from 

legal ambiguity or decisions that subvert the purpose of the National Labor Relations Act driven by the ideological agenda. We are 

going to debate that at some length this morning. 

The other concern that I have is about procedure and timing. 

Batches of decisions are not uncommon from the National Labor 

Relations Board. Mr. Cohen’s testimony, in particular, points that 

out. I know he is going to talk about that later. 

But I am struck by the differential between the seeming urgency 

to render the September decisions and the lack of urgency with the 

rights of people who have lost their jobs under protected activities. 

In the Earthgrains case, the worker was fired in 1998. At every 

stage of the proceedings, it was found that the worker was protected by the law. The worker won, and has yet to recover back 

pay. 

In the Baker Electric decision, it was found that a worker was 

unlawfully terminated, and there was an unlawful repudiation of 

a union agreement, 1993, 14 years ago. The worker won, has yet 

to collect a dime of back pay. 

In the Domsee trading decision, 202 workers were illegally terminated in 1989 and 1990, 17 and 18 years ago. They won at every 

stage of the process. It was found that their rights were violated. 

They have yet to collect a penny of back pay. 

I am struck by a concern of the relative urgency to render the 

decisions that we saw in September, many of which, I think, can 

be fairly characterized as pro-employer, not all, and the lack of urgency to deal with cases where there has been a finding up through 

the process where workers have been treated unlawfully and unfairly and have yet to receive any of the remedies the law entitles 

them to. 

So we are going to have a vigorous discussion. We have an excellent panel, two excellent panels of witnesses. We look forward to 

what people have to say this morning. And I know we are going 

to be joined by our colleagues from the Senate. I will be recognizing 

both the chairpeople and ranking members upon their arrival. 

At this time, I am going to recognize the ranking member of our 

subcommittee in the House, my friend from Minnesota, Mr. Kline. 

4

[The statement of Mr. Andrews follows:]

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee 

on Health, Employment, Labor and Pensions 

Good morning and welcome to our joint hearing today entitled ‘‘The National 

Labor Relations Board: Recent Decisions and Their Impact on Workers’ Rights.’’ The 

Health, Employment, Labor and Pensions (HELP) Subcommittee is honored to be 

joined by the Senate Employment and Workplace Safety Subcommittee, chaired by 

the distinguished Senator from Washington, Senator Murray. 

During today’s hearing, the committee will focus its attention on the 61 decisions 

the Board issued in September of this year. A majority of these decisions are viewed 

as many as a major shift in labor policy and an assault on the American worker 

and his or her right to collectively bargain. Specifically, many of these decisions are 

seen as undermining voluntary card check agreements and workers’ remedies such 

as the ability to recover backpay. 

The purpose of the National Relations Labor Act (NLRA) is to encourage collective 

bargaining. I am sure we will hear arguments today that argue this is no longer 

the purpose of the Act—which somehow the enactment of Taft-Hartley did away 

with this purpose. To simply put it, this premise is wrong. 

Our purpose today is to examine whether the Board has 1) upheld the first principle of the NLRA (that is, encouraging collective bargaining) 2) distinguished between routine fact pattern and egregious fact pattern and 3) whether they applied 

the necessary remedial tools in those decisions. As Members of this committee and 

Congress, we have the right to alter these decisions if we conclude that these decisions are going in the wrong way as a matter of public policy. 

A major contributor to the ‘‘middle class squeeze’’ is the decline in workers’ freedom to organize and collectively bargain. When workers get their fair share, the 

economy benefits and the middle class grows stronger. The freedom to organize and 

collectively bargain has been under severe assault in recent decades and it is our 

role to determine whether the Board’s recent decisions are contributing to the problem. 

I thank the distinguished panel of witnesses we have before us today and look 

forward to hearing all of their testimony. 

Mr. KLINE. Thank you, Mr. Chairman. And good morning. 

Good morning to the panelists. In the past 11 months, this subcommittee under the leadership of Chairman Andrews has had the 

opportunity to engage in numerous examples of good faith bipartisan oversight in legislating. Sometimes we have agreed on solutions. And sometimes we have not. 

But even when we haven’t, no one has doubted our good faith 

commitment to truly and responsibly examine the issues. I am 

afraid this morning we may be moving into the realm of political 

theater and out of genuine oversight. 

I expect we will hear a number of ominous sounding accusations 

this morning. We have had hints already. No doubt we will hear 

about how the National Labor Relations Board under Chairman 

Battista issued 61 cases this last September and how this represents some 11th hour, last-ditch effort by the board to stack the 

deck and roll back worker rights and protections as the Bush administration enters its final year. Somehow that number is given 

great significance—61 cases decided in a single month. 

What we will not hear is that a high number of decisions being 

issued by the board in September, the final month of its fiscal year, 

is not at all uncommon. During the Bush administrative, the board 

has issued as few as 54 decisions in September of 2005 and as 

many as 114 in September of 2004. Equally important by way of 

comparison, from 1994 to 2000, the Clinton era board’s number of 

September decisions ranged from a low of 53 to a high of 104. With 

more than 61 decisions handed down in all but 1 year. 

5

So to suggest that 2007 marks some watershed year is to ignore 

history and fact. I expect we will hear claims from the majority 

that this board has sided always with employers and uniformly 

against workers and organized labor. That is simply not true. 

Indeed, I can speak firsthand to an issue of great importance in 

my district, the board’s decision in San Manuel Indian Bingo and 

Casino, which expanded the rights of unions to organize workers 

on sovereign Indian lands. As a sponsor of legislation to overturn 

this decision, which I strongly believe unfairly impinges on tribal 

sovereignty and tribal employers to the benefit of big labor, I can 

tell you without a doubt that this board has been far from a rubber 

stamp for management. But I expect that is what we will hear 

today. 

Sadly, this conflict between rhetoric and reality is not surprising 

to anyone who has observed our committee as it delves into these 

issues, particularly where organized labor holds sway. We heard it 

in 2004 when the Bush administrative undertook the most comprehensive overhaul of our nation’s overtime regulations in 50 

years. We heard from organized labor and their think tanks that 

8 million workers would lose overtime protections overnight and be 

left out in the cold. That just didn’t happen. 

We heard it with respect to decisions on who is and who is not 

considered a supervisor under the NLRA. We heard that the 

board’s decision in the Kentucky River cases would reclassify 1.4 

million employees as supervisors and strip 8 million more workers 

of the right to unionize. It didn’t happen. 

And I expect that we will hear more than once today that this 

decision or that one issued by the board will strip millions of workers of protection or deprive workers of the right to join a union, a 

right most of them, frankly, are glad to forfeit these days. But if 

history is any guide, there will be just one problem. It won’t happen. 

The question that I believe needs to be answered is this. Why are 

we here today? Make no mistake, I fully endorse the proposition 

that this committee and the subcommittees not only have the right, 

but the obligation to engage in vigorous oversight of the laws within our jurisdiction and the agencies and departments which administer them. I am deeply concerned, however, when this committee 

uses its hearing power cloaked in the garb of oversight to bring before us sitting adjudicators for the purpose of questioning or even 

attacking decisions with which the majority disagrees. 

This hints at the types of abuse of power that this board is 

meant to prevent, not be subject to. I expect that almost every case 

we discuss today, certainly any issued by the board only weeks ago, 

is still an active, pending matter being adjudicated in the court system. 

The decisions of the board are reviewable and enforceable by the 

Federal Circuit Courts of Appeals and ultimately the U.S. Supreme 

Court itself. I expect many of the cases we will discuss this morning will be back before the board in some form or fashion. 

In short, Mr. Chairman, I am concerned about the process here 

today and the fact that we are bringing adjudicators before us to 

discuss cases that might still be before them. I want to make one 

point very clear. In our discussions today, whatever opinions come 

6

from the members of Congress up here, that does not constitute a 

sense of Congress on any matter that may be appearing before the 

board. 

With that, Mr. Chairman, I yield back. 

[The statement of Mr. Kline follows:]

Prepared Statement of Hon. John Kline, Ranking Republican, 

Subcommittee on Health, Employment, Labor and Pensions 

Good morning, Mr. Chairman. 

In the past eleven months, this Subcommittee, under your leadership, has had the 

opportunity to engage in numerous examples of good faith, bipartisan oversight and 

legislating. Sometimes we have agreed on solutions, and other times we have not. 

But even when we haven’t, no one has doubted our good faith commitment to truly 

and responsibly examine the issues. 

Sadly, it is clear this morning that today’s hearing is not one of those exercises. 

Indeed, today’s hearing is little more than hollow, political theater. 

I expect we’ll hear a number of ominous sounding accusations this morning. No 

doubt we will hear about how the National Labor Relations Board under Chairman 

Battista issued SIXTY-ONE cases this last September, and how this represents 

some eleventh-hour, last ditch effort by the Board to ‘‘stack the deck’’ and roll back 

worker rights and protections as the Bush Administration enters its final year. 

Somehow that number is given great significance—SIXTY-ONE cases decided in a 

single month. 

What we will NOT hear is that a high number of decisions being issued by the 

Board in September—the final month of its fiscal year—is not at all uncommon. 

During the Bush Administration, the Board has issued as few as 54 decisions in 

September of 2005, and as many as 114 in September of 2004. Equally important, 

by way of comparison, from 1994 to 2000, the Clinton-Era Board’s number of September decisions ranged from a low of 53 to a high of 104, with more than 61 decisions handed down in all but one year. To suggest that 2007 marks some watershed 

year is to ignore history and fact. 

I expect that we’ll hear claims from the Majority that this Board has sided always 

with employers and uniformly against workers and organized labor. The accusation 

contradicts the facts. Indeed, I can speak first hand to an issue of great importance 

in my district—the Board’s decision in San Manuel Indian Bingo and Casino—which 

expanded the rights of unions to organize workers on sovereign Indian lands. As the 

sponsor of legislation to overturn this decision—which I strongly believe unfairly impinges on tribal sovereignty and tribal employers to the benefit of organized labor—

I can tell you without a doubt that this Board has been far from a rubber stamp 

for management. But I expect that is what we will hear today. 

Sadly, this conflict between rhetoric and reality is not surprising to anyone who 

has observed our Committee as it delves into these issues, particularly where organized labor holds sway. 

We heard it in 2004, when the Bush Administration undertook the most comprehensive overhaul of our nation’s overtime regulations in fifty years. We heard 

from organized labor and their think tanks that 8 million workers would lose overtime protections overnight and be left out in the cold. 

There’s just one problem: it didn’t happen. 

We heard it with respect to decisions on who is and who is not considered a supervisor under the NLRA. We heard that the Board’s decision in the Kentucky River 

cases would reclassify 1.4 million employees as supervisors and strip 8 million more 

workers of the right to unionize. 

There’s just one problem: it didn’t happen. 

And I expect that we will hear more than once today that this decision or that 

one issued by the Board will strip millions of workers of protection, or deprive workers of the right to join a union—a right most of them are glad to forfeit these days. 

But if history is any guide, there will be just one problem: it won’t happen. 

A question that I believe needs to be answered is this: why are we here today? 

Make no mistake: I fully endorse the proposition that this Committee and its subcommittees has not only the right but the obligation to engage in vigorous oversight 

of the laws within our jurisdiction, and the agencies and departments which administer them. I am deeply concerned, however, when this Committee uses its hearing 

power, cloaked in the garb of ‘‘oversight,’’ to bring before us sitting adjudicators for 

the purpose of questioning or even attacking decisions with which the Majority disagrees. This hints at the types of abuse of power this Board is meant to prevent, 

not be subject to. 

7

I expect that almost every case we discuss today—certainly any issued by the 

Board only weeks ago—is still an active, pending matter being adjudicated in the 

court system. The decisions of the Board are reviewable and enforceable by the federal circuit courts of appeals, and ultimately, the U.S. Supreme Court itself. I expect 

many of the cases we’ll discuss this morning will be back before the Board in some 

form or fashion. 

In that light, it is plain to me that today’s hearing runs the real risk of appearing 

to suggest how the Board should adjudicate those cases in the future. It is a wellestablished tenet of federal law and jurisprudence that federal courts do not render 

‘‘advisory opinions’’ nor do they opine on facts not before them. 

I would urge both Republican and Democrat witnesses from the Board to be mindful of that fact this morning, and expect that my colleagues will not ask, nor will 

witnesses offer, conclusions as to hypothetical matters that could come before the 

Board in the future, or opinions on facts and fact patterns that were not presented 

in the cases before them. 

Finally, since I expect we will hear more than our fair share of hyperbole and 

rhetoric today, I want to make clear, on the record, that this morning’s hearing in 

no way reflects any formal finding of Congress or of this Committee. It is important 

to be clear that nothing said here today, whether by witnesses or by Members, 

should be construed as precedent, or as evidence of the intent of Congress or the 

meaning of any case or statute. 

I would close with an observation made in this Committee ten years ago: 

Intentional interference in the judicatory activities of an independent agency, if 

indeed that was the majority’s intent, is not simply inappropriate, it is an improper 

abuse of the subcommittee’s oversight responsibilities. 

Those words ring true today, as we take the unprecedented step of compelling sitting Members of the Board to offer testimony on pending cases. I could not agree 

more, and would associate myself with those remarks, made ten years ago by another one of our distinguished colleagues from New Jersey, a member of the full 

Committee Mr. Donald Payne. His words of caution and condemnation in 1997 are 

even more applicable to the hearing before us this morning. 

With that, I yield back. 

[Additional submissions from Mr. Kline follow:] 

[Statement from the Associated Builders and Contractors follows:]

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[Letter from the U.S. Chamber of Commerce follows:]


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U.S. CHAMGER OF COMMERCE, 

December 13, 2007. 

Dear Senators MURRAY and ISAKSON and Representatives ANDREWS and KLINE: On behalf of the U.S. Chamber of Commerce (Chamber), the world’s largest business 

federation representing more than three million businesses and organizations of 

every size, sector, and region, I am pleased to submit this statement for today’s joint 

hearing on the National Labor Relations Board: Recent Decisions and Their Impact 

on Workers’ Rights. 

The Chamber has numerous concerns with the National Labor Relations Act 

(NLRA or Act) and interpretations of the Act by the National Labor Relations Board 

(NLRB or Board) as they impact employees, employers, and labor organizations. For 

example, the way in which labor organizations can use ‘‘blocking charges,’’ as permitted by the Board, is a serious delay tactic that labor unions have used to deny 

workers the ability to exercise their rights to decide whether or not to be represented by a labor organization in a federally-supervised private ballot election. 

The Chamber would welcome an open discussion about the strengths and weaknesses of the NLRA and how it might be improved to achieve, in practice, the most 

appropriate balance of the rights of individual employees, employers, and labor 

unions. Unfortunately, based on history and press reports, it is unlikely such a discussion will take place today. 

Instead, it appears that this hearing is designed to continue to propagate myths 

and half-truths about organizing in today’s workplace, the state of U.S. labor law, 

and its interpretation and enforcement by the NLRB. The purpose of this statement 

is not to offer a complete rebuttal to these points, but rather to point out some more 

egregious examples where rhetoric has surpassed reason and to remind the Committee about this current Board’s record on overturning precedent and issuing decisions. 

However, before discussing the NLRB and recent cases, it is necessary to stress 

our objection to the Committee calling sitting board members to testify about recent 

decisions, many of which are still under appeal. While NLRB members are clearly 

not Article III judges, they do serve in a quasi-judicial role as offices of an independent agency. As such, they should be free of inappropriate influence by Congress 

or the Administration. While it is clearly appropriate for Congress and interested 

parties to agree, disagree, or be critical of specific Board decisions, it is inappropriate to call sitting Board members to testify about specific cases (as opposed to 

the agency’s budget, proposed reorganization, and the like) and the committee’s actions today set a dangerous precedent. Board members will be less likely to responsibly carry out their duties in making decisions if they can expect to be summoned 

before Congress every time they issue an unpopular decision. We hope the Committee will reconsider this precedent. 

Rhetoric Surpasses Reason 

The NLRB, as the federal agency charged with implementing, interpreting, and 

enforcing the NLRA, is certainly open to criticism and, indeed, the Chamber has not 

hesitated to criticize the Board when it has disagreed with a decision. Indeed, an 

open and honest debate over the merits of Board decisions is a healthy exercise and 

should be encouraged. However, in recent years, we have seen a disturbing trend 

in the tone of the debate. Instead of disagreement, we have ad hominem attacks, 

instead of criticism, hyperbole, and instead of reasoned discussion, vitriolic rhetoric. 

Compounding this are reports based on shoddy research and half-truths that have 

been relied on by policy-makers, including members of this committee, in attacking 

the Board and its decision. 

By way of example, consider the debate over the Board’s decision last year in 

Oakwood Healthcare, Inc.1 This decision involved the NLRB’s determination of 

which employees are considered supervisors under the NLRA. This issue was before 

the Board because the Supreme Court had, twice, rejected the NLRB’s prior attempts to apply the NLRA’s supervisory exemption to certain health care providers. 

The NLRB’s decision was roundly condemned by unions and their allies. AFL-CIO 

President John Sweeney said the decision ‘‘welcomes employers to strip millions of 

workers of the right to have a union by reclassifying them as ‘supervisors’ in name 

only.’’2 Anna Burger, Chair of the Change to Win Coalition, called the decision ‘‘illogical, dishonest, and anti-democratic’’ and said that the decision ‘‘created a blueprint for eliminating the right to organize for most professionals and from millions 

of leadpersons and employees who are currently represented.’’3

Earlier this year, the House Employer-Employee Relations Subcommittee held a 

hearing on this issue in which Chairman Andrews said that the decision ‘‘dramatically expanded the definition of supervisor far beyond the limits of the act intended 

and far beyond the limits of common sense. In so doing, it stripped an estimated 

13

8 million workers—particularly skilled and professional employees—of the right to 

organize.’’4

These statements and many like them rely on a report by Ross Eisenbrey and 

Lawrence Mishel of the Economic Policy Institute entitled Supervisors in Name 

Only: Union Rights of Eight Million Workers at Stake in Labor Board Ruling. The 

report was issued on July 12, 2006, more than two months before the NLRB issued 

the Oakwood decision. The EPI report was not and could not be based on the 

NLRB’s decision. Instead, it was based upon pure conjecture and fear that they 

NLRB would adopt an ‘‘extreme employer-centric position’’ on Oakwood and all similar cases pending before the Board.5

In reality, the NLRB did not issue an extreme employer-centric position. Instead, 

of the more than 180 employees at issue in Oakwood, the Board found a mere 12 

to be supervisors. In addition, in the 15 months since the Oakwood decision was 

issued, we are not aware of a single Board decision relying on the reasoning in Oakwood that found even a single employee to be a supervisor. 

However, in spite of the fact that millions of workers have not lost their rights, 

critics of Oakwood continue to propagate this myth, relying on a so-called analysis 

that came out before the decision was known. They have even relied on it to push 

legislation through changing the NLRA. While reasonable people can certainly disagree over the precise tests used to determine whether or not an individual qualifies 

as a supervisor, the rhetoric used by labor union officials as well as some in Congress clearly is beyond the pale and only serves to demonize the NLRA and the 

Board. 

A more recent example is the characterization of the NLRB’s decisions issued in 

September, 2007. Union leaders6 have dubbed these decisions the ‘‘September Massacre,’’ arguing that the majority of decisions issued in September stripped workers 

of their rights to organize. The hyperbole invoked by the phrase ‘‘massacre’’ aside, 

the assertion simply does not hold. Indeed, of the 61 decisions the Board issued in 

September, 2007, the majority were unanimous and were not the least bit controversial. In fact, Democratic NLRB Members Liebman and Walsh only offered a dissenting opinion in about one-third of the cases. Also of note is that in a majority 

of decisions, the NLRB ruled against the employer in question. Looking at the 

Board’s September decisions as a whole, they can hardly be characterized as a ‘‘kangaroo court’’7 or as the ‘‘Chamber of Commerce Board’’8 as some have alleged. 

Considering the specific cases decided in September, perhaps the most controversial case was the Board’s decision in Dana Corp. and Metaldyne Corp,9 where the 

Board held that when an employer and union attempt to evade the NLRA’s provisions to let workers decide whether or not to be represented by a union by secret 

ballot, the workers have a right to be told about the pending recognition and an opportunity to request a private-ballot election. This is arguably the single most proworker decision the Board issued all month, as it provides a mechanism to let employees intervene when unions and employers conspire to deprive them of an opportunity to make this important decision in private and free from coercion. Nevertheless, the Board’s decision has been cast as shameful by organized labor.10

In another of the more controversial decisions, Anheuser-Bush, Inc.,11 the Board 

refused to grant reinstatement to a group of employees who were discharged after 

their illegal conduct was discovered by the employer’s use of surveillance cameras. 

While the Board made clear that the employer should have bargained with the 

union over the use of cameras, that was not at issue in the case. The sole issue was 

whether or not the employees, who were discovered to be sleeping on the job, urinating on the employer’s roof, and using illegal drugs, were entitled to get their jobs 

back. Most Americans would probably agree with the Board’s decision—that such 

conduct does not warrant a federally-protected right of reinstatement. 

Certainly, some of the Board’s decisions issued in September, such as Dana / 

Metaldyne, are significant and worthy of debate. However, many other of the socalled controversial cases produced common sense results.12 Whatever one thinks of 

Dana/Metaldyne or any of the other 60 cases issued by the Board in September, 

these decisions cannot justify closing the Board down as many in the labor movement have suggested.13 Indeed, such a ploy would stop the Board from issuing the 

many routine decisions that are critical to ensuring workers, union, and employer 

rights are respected, not to mention the fact that it would dramatically increase the 

backload of cases. 

Current NLRB’s Record 

The Bush-NLRB has a surprising record when it comes to overturning precedent—in fact, it has overturned precedent far fewer times than its predecessor Clinton-NLRB and the decisions the Bush Board have overturned were of newer, less 

well-established, cases. For a comprehensive analysis of these cases, the Committee 

14

should review the paper prepared by G. Roger King for an American Bar Association meeting last year.14

King notes in his paper that the Clinton Board issued 3,458 reported decisions 

and of those, 60 overturned precedent. In these 60 decisions 1,181 years of precedent was lost.15 When subtracting out decisions that were unanimous or in which 

the majority dissented, the number is reduced to 444 years of precedent lost.16

The Bush Board, by contrast, has issued 1,037 reported decisions in which 9 reversed precedent. In these 9 cases, 146 years of precedent was lost. When subtracting out unanimous decisions or those in which the majority dissented, the number is reduced to 64 years of precedent lost.17

King also examines the rate at which courts of appeals overturn the NLRB to give 

some indication as to whether its decisions are consistent with the NLRA. By his 

assessment the Clinton Board was upheld in full, depending on the year, between 

60 and 70 percent of the time. By contrast, the Bush Board has been upheld in full 

between 74 and 78 percent of the time. When considering cases upheld in full or 

in part, the Clinton Board rate was between 72 and 85 percent, while the Bush 

Board was between 79 and 96 percent.18

While King’s data is from last year, it is certainly illustrative of the fact that the 

current NLRB has not perpetrated a long drive against worker rights. To the contrary, in a purely statistical sense, its record is on par with and, in some cases, better than the prior Board’s. 

In short, the Chamber hopes that the committee will push aside the shrill rhetoric 

surrounding the NLRB’s recent decisions and instead look at the Board’s decisions 

in a measured and reasoned way. Having an oversight debate based on fictitious 

analyses and half-truths will do little to ensure that the NLRA is appropriately enforced. 

Sincerely yours, 

RANDEL K. JOHNSON, 

Vice President, Labor, Immigration and Employee Benefits. 

ENDNOTES

1 348 N.L.R.B. No. 37 (2006). 

2Michelle Amber and Michael R. Triplett, Long-Awaited Ruling on Supervisors Prompts Flood 

of Reaction from Unions, Management, DAILY LABOR REPORT (BNA), Oct. 4, 2006. 3 Id. 

4Prepared statement of Rep. Robert Andrews, Are NLRB and Court Rulings Misclassifying 

Skilled and Professional Employees as Supervisors, May 8, 2007, retrieved online at http://

edlabor.house.gov/statements/050807RAHearingStatement.pdf. 5 EPI Report at 2. 

6Thousands of Workers Rally to Condemn the Bush Labor Board’s Massive Assault on Workers, Change to Win Press Release, Nov. 15, 2007 (quoting Greg Tarpinian, Executive Director 

of Change to Win). 7 Activists Protest Anti-Labor Labor Board, IBEW Press Release, Nov. 15, 2007 (quoting AFLCIO Voice@Work Director Fred Azcarate). Retrieved from http://www.ibew.org/articles/

07daily/0711/071115—ActivistsProtest.htm. 8 Id. (quoting United Mine Workers President Cecil Roberts). 

9 351 N.L.R.B. No. 28 (2007) 

10See Statement by AFL-CIO President John Sweeney on Latest NLRB Decision to Undermine Workers, Oct. 3, 2007. 11 351 N.L.R.B. No. 40 (2007). 12 Anheuser-Bush, for example. 13See Michelle Amber, Labor Unions Protest NLRB Decisions Demand Agency ‘Close for Renovations’, DAILY LABOR REPORT (BNA), Nov. 16, 2007 (quoting Fred Azcarate, director of the 

AFL-CIO’s Voice@Work campaign). 14G. Roger King, We’re Off to See the Wizards: A Panel Discussion on the Bush Board’s Decisions * * * and the Yellow Brick Road Back to the Clinton Board (2006). 15 Id. at 2-3. 16 Id. 17 Id. at 5-6. Our understanding is that when this data is updated to the present time, the 

bush Board has issued 21 decisions overturning precedent for 343 years of precedent lost. 18 Id. at 4, 6. 

Chairman ANDREWS. I thank my friend. I do want to note for the 

record that subpoenas were not issued for this hearing today. The 

members of the board who are here are here voluntarily. So any 

suggestion they are being coerced to be here is just not accurate. 

I would be honored at this time to recognize the chairman of the 

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

15

aptly named HELP, the senator from Massachusetts, Senator Kennedy. 

Senator KENNEDY. Thank you very much, Mr. Chairman. And I 

want to express our appreciation to you, Chairman Andrews and 

to Senator Murray, all of the members of the House Committee, 

and our colleagues here in the Senate for having this particular 

meeting. It is enormously important that the legislative branch understands how the National Labor Relations Board is functioning 

and working and whether it is complying with the law itself. 

And it is entirely appropriate that we look at the experience and 

decisions of the board itself in trying to understand it better. We 

have the recognition that over the recent years the fact that union 

membership has declined and with that, the safety net which has 

been basic and supportive to millions of America’s workers, has 

been frayed and been fractured, that the income for working families has lost its purchasing power and in many instances, deteriorated. 

And it is important that we understand exactly what role the 

National Labor Relations Board has taken. And we will get to some 

of the notorious cases, the Dana Corporation case and the 

Wurtland case, that hopefully we will have some opportunity to understand their reasoning. 

But it is clear that in the 5 years that this board has been in 

power, we have seen an unprecedented rollback in the protection 

for workers’ rights. This board has undermined collective bargaining at every turn, putting the power of the law on the side of 

lawbreakers, not victims, on the side of a minority of workers who 

want to get rid of a union, not the majority who want one and on 

the side of employers who refuse to hire union supporters, not the 

hard-working union members who want to exercise their democratic rights. 

So I thank the chair for having this hearing. It is a matter of 

enormous importance. And if I was entitled to a few minutes, if I 

could take the last 45 seconds and yield that to my friend and colleague, a former member of yours and someone who has been a 

leader on our committee in terms of workers’ rights, Mr. Brown. 

Chairman ANDREWS. We would be happy to welcome our friend 

home. 

Senator BROWN. Thank you. Thank you, Chairman Andrews. 

And thank you, Senator Kennedy. The issues that Senator Kennedy talked about are exactly right. We know that the decline in 

the middle class in this country is in large part reflective of, and 

a cause of, and a result of the decline of unionism. We know that 

in survey after survey large numbers of people, the majority of 

workers in most surveys would like to join a union if they had had 

an opportunity to. We know the kind of sophisticated operations 

that companies employ. And unfortunately, they have too often had 

an ally at the NLRB. 

As Senator Kennedy pointed out, the Dana case and the 

Wurtland case decisions came down the same day. The Dana case 

says that collecting employee signatures in support of a union is an 

inferior process to the election process. Meanwhile in the Wurtland 

decision issued the same day, the board said workers’ signatures 

16

were objective proof that workers no longer wanted the union. 

Which is it? 

And we saw those arguments during the debate about the Employee Free Choice Act. We know that a majority of Americans supported the Employee Free Choice Act, and we know that a majority 

of Americans would like the opportunity to join a union. And we 

would like to see an NLRB that reflected that majority sentiment, 

but more than that, an NLRB that simply believed in fair play. 

I thank Chairman Andrews and Chairman Kennedy. 

Chairman ANDREWS. Thank you. I note that neither Senator 

Isakson nor Senator Enzi is here. So what we are going to do is 

proceed with the witnesses. Upon either of their arrivals we will 

interrupt and give them the opening statement, if that is acceptable with everyone. 

I wanted to welcome our first two witnesses. Robert Battista has 

been chairman of the National Labor Relations Board since 2002. 

Before becoming chair of the board, he was a management labor 

lawyer in Detroit. He is a former chair of the Labor and Employment Law Section of the Michigan Bar Association and a former 

member of the advisory committee to the Michigan Employment 

Relations Commission. 

Chairman Battista graduated from the University of Notre Dame 

in 1961 with his B.A. and the University of Michigan Law School 

in 1964. 

Welcome, Mr. Chairman. 

And Wilma Liebman is a member of the NLRB who was appointed by President Clinton. Prior to joining the board, she served 

as deputy director of the Federal Mediation and Conciliation Service. And before that, Ms. Liebman served as special assistant to the 

director of that agency. A Philadelphia native, Ms. Liebman has a 

B.A. from Barnard College and a J.D. from the George Washington 

University Law Center. 

Welcome, Member Liebman. 

Mr. Chairman, we would ask that you make your statement. Our 

general practice is that we accept for the record the written statements of the witnesses. We ask people to summarize in 5 minutes 

their written statement. Frankly, given the service each of you has 

rendered, we will be quite liberal in interpreting that rule this 

morning. 

That does not go for the lay witnesses, I must say, but it does 

for our members. 

A yellow light will appear when you are 1 minute away from 

time. The red light means time. But again, please, take the time 

you think you need to explicate your position. 

Good morning, Mr. Chairman. 

STATEMENT OF HON. ROBERT BATTISTA, CHAIRMAN, 

NATIONAL LABOR RELATIONS BOARD 

Mr. BATTISTA. Good morning, Mr. Chairman. 

Chairwoman Murray, Ranking Member Isakson, Chairman Andrews, and Ranking Member Kline, and members of the subcommittees, thank you for this opportunity to discuss recent decisions of the National Labor Relations Board and their impact on 

17

employee rights. I have three points I would like to make in my 

oral statement. 

First of all, the September rush, as it is called, was certainly not 

political. I want to set the record straight regarding the number 

and timing of the decisions the board issued in September of 2007. 

Our critics allege that the Bush majority rushed out 61 decisions 

in September, which they describe as a massive assault on workers 

before the president’s term ends. That is just not so. 

Anyone with a basic knowledge of a board case processing knows 

that September, the last month of the fiscal year, is the busiest 

case production time. The board actually issued 70 decisions in 

September after a bipartisan effort of all five members to issue the 

oldest cases we had on the books. 

The equivalent number for September issuances in the prior 4 

years are 119, 54, 114, and 105. So our 70 in September is the second lowest for the 5 years. 

As for the substance of what the board held, the decisions speak 

for themselves. It should be noted, however, that of the majority of 

unfair labor practice decisions issued in September, the board 

found one or more violations of the act by the employer involved. 

The second point I would like to make is that the NLRB is performing its statutory mission. Notwithstanding the special interest 

group rhetoric you might be hearing about the NLRB, I want to assure Congress that the agency is successfully carrying out its statutory mission to administer the National Labor Relations Act as it 

has been written by Congress and interpreted by the reviewing 

courts. 

Consider these facts. During my 5-year tenure as chairman, the NLRB recovered a total of $604 million in back pay with 13,279 

employees offered reinstatement. In fiscal 2007, the NLRB held 

1,559 representation elections in under 2 months. The unions won 

over half of them. 

Over the same period, two-thirds of the 22,000 unfair labor practice charges that the NLRB received were investigated and resolved within 4 months. Of charges found to have merit, some 90 

percent are settled prior to the issuance of a complaint. 

In fiscal 2007, the median time to issue complaints was 98 days. 

Complaints that the regional directors do issue in meritorious cases 

go to hearings before NLRB administrative law judges. Their decisions could be appealed to the board in Washington. 

The board’s decisions are subject to review and enforcement in 

the U.S. Court of Appeals. In fiscal year 2007, our decisions were 

enforced in whole 86.6 percent of the time and in whole or in part, 

97 percent of the time, the highest enforcement rates in the agency’s history. 

Since 1990, the cases pending before the board in Washington 

have represented only one or 2 percent of the cases filed with the 

agency nationwide. By focusing only on this small percentage of 

board decisions, some critics give the impression that the delay inherent in a fully litigated case is the norm. That is not true. Overall, the NLRB’s case processing record is a very impressive one. 

As for the board’s productivity, since I became chairman, we 

issued almost 500 cases a year through the end of fiscal year 2007. 

The median number of days an unfair labor case was pending at 

18

the board as of the end of fiscal year 2007 was 181 days. For representation cases, the median was 88 days. 

We have reduced our backlog to 207 cases from 621 when we 

first came to the board, or a reduction of some 66.5 percent in 5 

years. We are at the lowest case inventory in over 30 years. Granted, a lower intake of cases helped us in this effort, but overall, we 

did well in bringing the caseload down to a respectable working inventory. 

Third, our critics lose sight of the fact that the statute was 

amended in 1947 by the Taft-Hartley Act to protect employees from 

not only employer interference, but also union misconduct and to 

give employees the equal right to refrain from union activities and 

representation. The board is obligated to enforce the law as enacted 

by Congress despite what any affected party may wish for. 

The statute was not intended to benefit unions or employers. 

Rather, the rights granted by the statute belong only to employees 

whether unionized or not. 

Once again, the fundamental principle of the act is to provide for 

employee free choice, allowing employees to decide for themselves 

whether they wish to be represented by a union or to otherwise act 

concertedly in dealing with their employer. The law is neutral, and 

so is this agency. Thank you for your attention. 

[The statement of Mr. Battista follows:]

Prepared Statement of Hon. Robert J. Battista, Chairman, National Labor 

Relations Board 

Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and Ranking 

Member Kline, and Members of the Subcommittees: my name is Robert Battista, 

and I am Chairman of the National Labor Relations Board. The NLRB is an independent federal agency created by Congress in 1935 to administer the National 

Labor Relations Act, as amended, the primary law governing relations between 

unions and employers in the private sector. The statute guarantees the right of employees to organize and to bargain collectively with their employers, and to engage 

in other protected concerted activity with or without a union, or to refrain from all 

such activity. Under the Act, the NLRB has two principal functions: 

• to conduct secret-ballot elections among employees to determine whether or not 

the employees wish to be represented by a union; and 

• to prevent and remedy statutorily defined unfair labor practices by employers 

and unions. 

Thank you for the opportunity to discuss recent decisions of the National Labor 

Relations Board and their impact on employee rights. I understand you are most 

interested in the decisions we issued in September 2007. Before addressing specific 

decisions, I would like to cite some of this Board’s accomplishments and to offer 

some observations about the Agency and the National Labor Relations Act. 

Notwithstanding the special interest group rhetoric you may be hearing about the 

NLRB, I want to assure Congress that the Agency is successfully carrying out its 

statutory mission to administer the Act as its has been written by Congress and interpreted by the reviewing courts. 

Agency Performance 

In three days, I will have completed my five-year term as Chairman. I thought 

it would be appropriate to look back upon my term to see how the Board fared 

against the goals we established for the Agency when we first took office. In December of 2002, our goals as a Board were to become more productive, credible with 

the Court’s, collegial, and transparent. As I will explain, we have substantially accomplished those goals. 

1. Productivity 

We certainly have become more productive. In fiscal year 2002, the last fiscal year 

before I became Chairman, the Board issued a total of 443 cases. Since I became 

Chairman in December 2002, the Board has issued almost 500 cases a year through 

the end of FY 2007 on September 30, 2007. 

19

GPRA Case Initiative 

In fiscal 2007, all Board Members made a determined effort to meet our goals 

pursuant to the Government Performance Results Act, which we refer to by the acronym ‘‘GPRA.’’ Our internal GPRA goal for unfair labor practice (‘‘C’’) cases was 

to issue by September 30, 2007, decisions in 90% of the 216 C cases pending as of 

May 1, 2006. Our internal GPRA goal for representation cases was to issue by September 30, 2007, decisions in 90% of the 59 representation (‘‘R’’) cases pending as 

of October 1, 2006. 

We were successful in issuing decisions in many of our oldest GPRA cases. Indeed, 

in fiscal 2007 we issued decisions in 48 of our oldest 50 cases. With regard to R 

cases, we issued rulings in 98.3% of all the R cases we had on October 1, 2006 thus 

exceeding our GPRA goal. We issued decisions in 84.1% of our GPRA C cases we 

had on hand on May 1, 2006. Thus, while we did not quite meet our internal GPRA 

C case goal, we were able to issue decisions in the great bulk of the old cases, many 

of which had lengthy records and difficult issues that seemed to have been handed 

down from one Board to another. Another way to look at the success of our efforts 

is to compare median case pendency periods. At the end of fiscal 2006, the median 

number of days that a C case was pending with the Board was 809 days. After our 

GPRA effort in Fiscal 2007, the median number of days a C case remained at the 

Board was 181 days. 

We achieved a similarly dramatic reduction in median time for R cases. At the 

end of fiscal 2006, the median number of days an R case was at the Board was 409 

days. After our GPRA effort in fiscal 2007, the median number of days for our R 

case inventory was 88. 

While we still have some old C cases that we intend to decide before the end of 

the year, the claim that cases are languishing at the Board is no longer true. 

Case Backlog at Lowest Level in Over 30 Years 

Furthermore, we have made real inroads on the backlog. Five years ago the case 

backlog at the Agency stood at 621 contested cases. Many of them had been at the 

Board for a number of years. At the end of FY 2007, we have reduced that backlog 

to 207 cases or a reduction of some 66.5%. Granted, a lower intake of cases helped 

us in this effort, but we did well in bringing the caseload down to a respectable 

working inventory. 

Board Issues Lead Case Decisions 

During the same period, the Board has issued 28 major decisions. We had hoped 

to issue more. However, to decide a major issue, the Board must have at least a 

three-member majority who are willing to sign on to the opinion. That task was 

made doubly difficult because during my chairmanship, the Board had fewer than 

5 members for 18 months or 30% of the time, including all of calendar year 2005. 

Of course, when a new member comes on to the Board, it takes a while for the new 

member to come up to speed, acclimate himself or herself with staff, and for the 

Board to develop the necessary chemistry to reach consensus or even a majority. 

Representation Case Activity 

With regard to representation case activity at our Regional Offices during FY 

2007, 2,439 (RC and RM) petitions were filed, which resulted in holding 1,559 elections. • Unions won 54.3% of those elections; • The time from the filing of a petition to the holding of an election was 39 median days; • 93% of the elections were held within 56 days; • 78.9% of all R cases were closed by the Agency within 100 days from the filing 

of the petition. • Only 13 cases involved a technical refusal to bargain to test the certification, 

which means employers challenged the certification of unions in court in only 1.1% 

of the elections that unions won. 

Board Collects Over One-Half Billion Dollars in Backpay 

In FY 2007, the NLRB collected $110,388,806 in backpay, and 2,456 employees 

were offered reinstatement. Over my tenure as Chairman, the NLRB recovered a 

total of $604 million on behalf of employees as backpay or reimbursement of fees, 

dues, and fines, with 13,279 employees offered reinstatement. 

All and all, from a productivity standpoint, we have done a very credible job, of 

which I am proud. In the words of one longtime observer of this Agency, ‘‘the efficiency and productivity of the Board continues to serve as a role model for many 

Federal agencies.’’ G. Roger King, ‘‘We’re Off to See the Wizards’’ A Panel Discussion on the Bush II Board’s Decisions * * * And The Yellow Brick Road Back to 

20

the Record of the Clinton Board, (paper presented at the American Bar Association, 

Section of Labor and Employment Law, 34th Annual Development of the Law Under 

the National Labor Relations Act Mid-Winter Committee Meeting on February 26 

to March 1, 2006). 

2. Credibility in the Courts 

Building credibility with the U.S. Courts of Appeals was the second objective. In 

fiscal 2002, the prior Board had its decisions enforced in the courts in whole 60.4% 

and in whole or in part 70.8% of the time. From December 2002, when I took office, 

through September 30, 2007, the decisions of the Board have been enforced by the 

Courts in whole 78.1% and in whole or in part 87.7% of the time. Indeed, in fiscal 

2007, our decisions were enforced in whole 86.6% and, in whole or in part, 97% of 

the time. Both of these enforcement rates are the highest in the Agency’s history. 

3. Collegiality 

Fostering collegiality and bipartisanship was a third goal, and despite stronglyworded dissents in some of the more important cases, in the main, the whole Board 

has been fairly collegial. Despite differences, which are not always predictable based 

upon political affiliation, we have tried to be guided by tolerance and respect for 

each other’s strongly held views. 

4. Transparency 

The last of our goals has been to make the Agency more transparent to the public 

it serves by implementing the President’s Management Agenda and E-Gov initiatives. We have renovated the Agency’s Web site by greatly expanding its content, 

making it interactive, more user-friendly, and greatly enhancing its E-Filing capacity. We also are building an enterprise-wide electronic case management system designed to reduce reliance on paper-based processes, improve operational efficiency, 

and better serve the public. 

Criticisms and Responses 

Complexity of the Board’s Responsibility 

Some critics of the Board emphasize that the Act, as amended, retains the language from its original statement of purpose, found in the 1935 Wagner Act, calling 

for the encouragement of collective bargaining. These commentators invoke this language to fault the Board for not doing enough to promote unionism. In my opinion, 

this is an anachronistic view that ignores the amendments to the 1935 Act and the 

complexity of the Board’s responsibility. 

The Board’s responsibility is much more complex than the promotion of any institution’s agenda because of the interplay of two essentially legal (as opposed to economic) forces. First, the Wagner Act was not Congress’ last word. The Taft-Hartley 

Act of 1947 and the Landrum-Griffin Act of 1959 amended the original Wagner Act 

substantively and philosophically. Second, the courts have interpreted the Act and 

its amendments in a way that reflects the compromises underlying the legislation 

and leaves no room for the Board to construe and apply the amended Act as if it 

were the property of a single interest group. 

Balancing Competing Interests 

As defined by the sum total of the amendments and the court decisions, the 

Board’s mission is to balance and accommodate competing interests, which typically 

conflict with one another. For example, although employees have the right to organize and engage in collective bargaining, employees also are assured of the right not 

to engage in union or concerted activity. Thus, the narrower goals of the original 

Act were tempered significantly by a broader notion of workplace democracy, voluntarism and neutrality, as expressed in the Taft-Hartley amendments. As one of our 

most eminent labor law and constitutional scholars, the late Archibald Cox, put it: 

The Taft-Hartley Act ‘‘represents a fundamental change in philosophy, which rejects 

outright the policy of encouraging collective bargaining.’’ Archibald Cox, Some aspects of the Labor Management Relations Act of 1947. 61 Harv. L. Rev. 1, 24 (1947). 

My own view is that Professor Cox was absolutely right insofar as he saw the 

Taft-Hartley amendments as adopting a posture of complete equipoise on the question of whether employees should choose union representation. In the words of the 

Supreme Court, ‘‘The Act is wholly neutral when it comes to that basic choice’’ 

(NLRB v. Savair Manufacturing). Once employees have freely chosen union representation, however, I think that the policy of encouraging the collective bargaining 

process retains its vitality. 

Even in the context of collective bargaining, the statute is neutral as to the outcome of negotiations. In this regard, Section 8(d) of the Act defines the obligations 

of the parties to engage in good faith bargaining, but specifically notes that ‘‘such 

21

obligation does not compel either party to agree to a proposal or require the making 

of a concession. * * *’’

Another example of the resolution of conflicts between competing interests occurs 

in the context of economic battles over terms of a collective bargaining agreement. 

Although employees are entitled to strike for better working conditions, the right 

of an employer to continue business operations has been recognized since the beginning of the Act’s history. Thus, employers are allowed to hire replacement workers 

during the strike, who need not be displaced once the strike is over. 

This balancing of competing interests also is illustrated in the frequently litigated 

question of whether a union has a right to engage in concerted activity—like picketing or handbilling—on the private property of an employer. Over 50 years ago the 

Supreme Court told the Board that when the Section 7 rights to engage in concerted 

activity conflict with property rights, the Board must accommodate the two ‘‘with 

as little destruction of one as consistent with the maintenance of the other.’’

Criticisms are Politically Motivated and Without Foundation 

The polemics of certain groups against recent decisions of the Board are nothing 

more than special-interest attacks designed to gain support for their position in the 

coming election cycle. The hue and cry is that the ‘‘Bush majority’’ rushed out 61 

decisions in September in a ‘‘massive assault on workers’’ before the President’s 

term ends. That is just not so. Anyone with a basic knowledge of Board case processing knows that September, the last month of the fiscal year, is the busiest case 

production time. The Board actually issued 70 decisions in September, after a bipartisan effort by all five Members to issue the oldest cases. The equivalent numbers for September issuances in the prior four years are 119, 54, 114, and 105. As 

for the substance of what the Board held, the decisions speak for themselves. It 

should be noted, however, that in the majority of unfair labor practice decisions 

issued in September, the Board found one or more violations of the Act by the employer involved. 

Should parties appeal the decisions, one of the 12 circuits of the U.S. Courts of 

Appeals will decide whether to affirm or reverse the Board. If a Board decision is 

balanced and well reasoned, generally it gets enforced. As I stated previously, in FY 

2007, which ended on September 30, 2007, the Board’s decisions were enforced by 

the courts at historically-high levels. 

Our critics’ prognostications that ‘‘the NLRB system is broken and has become a 

tool of corporate interest,’’ are simply false. Unions are winning a majority of representation elections, most of which are held within two months. The Board has 

averaged issuing almost 500 decisions a year during my tenure. The median number 

of days an unfair labor practice case has been pending at the Board is 181 days; 

for representation cases, the median is 88 days. This is not the record of a Board 

that is the captive of any group or institution. 

Mission Is to Enforce Entire Statute 

Our critics declare that the National Labor Relations Act was passed by Congress 

in 1935 ‘‘to encourage workers to have unions and to bargain collectively.’’ However, 

they lose sight of the fact that the statute was amended in 1947 by the Taft-Hartley 

Act to give employees the equal right to refrain from union activities and representation, and to protect employees from not only employer interference but also union 

misconduct. Often critics fail to comprehend that the Board’s mission is to enforce 

the entire law as enacted by Congress despite what any affected party may wish 

for—a return to 1935 or to some future legislative result. 

NLRA Protects Employees 

The statute was not intended to benefit unions or employers. Rather, the rights 

granted by the statute belong only to employees—whether unionized or not. Once 

again, the fundamental principle of the Act is to provide for employee free choice, 

allowing employees to decide for themselves whether or not to be represented by a 

union or otherwise to act concertedly in dealing with their employer. 

If employees exercise their right of free choice in favor of union representation, 

the policy of the Act, and the responsibility of the Board, is to encourage collective 

bargaining by making sure that unions as well as employers bargain in good faith, 

free from governmental interference. If employees exercise their right of free choice 

not to be represented, it is the Board’s responsibility to respect that choice and ensure against union restraint or coercion. The law is neutral * * * and so is this 

Agency. 

Most Cases Resolved Quickly 

Another criticism leveled at the Board focuses on the delay in processing cases 

to final conclusion. The overall case processing times, however, reveal the criticism’s 

22

delay premise to be exaggerated. In FY 2007 the NLRB received 25,471 cases, 

22,147 of which were unfair labor practice cases, and the remaining 3,324 were representation cases. After the General Counsel investigates the unfair labor practice 

cases, typically about one third of the cases are determined to have merit. In FY 

2007, 36.6% of the cases were found to have merit. These investigations usually are 

completed in about two months. 

Only 1-2% of Cases are Appealed to Board 

Of the cases found to be meritorious, some 90% are settled prior to the issuance 

of a complaint. Complaints that Regional Directors do issue in meritorious cases are 

considered by NLRB Administrative Law Judges, and judges’ decisions can be appealed to the Board here in Washington, D.C. In FY 2007, the median time to issue 

complaints was 98 days. Since 1990, the cases pending before the Board in Washington have represented only 1% to 2% of cases filed with the Agency nationwide. 

These cases tend to present the most difficult and complex issues in labor law. By 

focusing only on this small percentage of cases, some critics give the impression that 

delay inherent in a fully-litigated case is the norm. This is not true. Although, admittedly, some of these fully litigated cases take too long to resolve, such delays are 

not typical. Overall the NLRB’s case processing record is impressive. 

The vast majority of these cases are resolved without the necessity of litigation. 

Historically, the Board’s settlement rate has been very high; in FY 2007, 97% of all 

unfair labor practice cases filed in the field offices were settled. 

Board Decisions Speak for Themselves 

The decisions this Board has issued are correctly decided, soundly reasoned, and 

speak for themselves. In many instances, the decisions are unanimous. True, some 

of the more important decisions have not been, but dissent is healthy for many reasons, including the assurance dissent provides that the members in the majority 

have considered carefully opposing views and arguments. 

Evolution of Labor Policy under the Act 

The genius of the Act is that it sets forth enduring fundamental principles, and 

yet allows for flexibility and change. It accomplishes the former by setting forth fundamental principles in clear and compelling language. It accomplishes the latter by 

using broad language that gives the administering agency, the Board, the freedom 

and responsibility to make policy judgments within the parameters of those principles. 

More specifically, the enduring fundamental principles include: the employee freedom to choose to be represented or not; the guarantee of good-faith bargaining free 

from governmental interference if employees choose representation; an electoral 

mechanism to insure that employees are appropriately grouped together, and can 

vote in secret; the duty to sign and honor contracts that are freely agreed to; and 

the protection of employers from labor disputes in which they are not involved. 

Within these principles, there is considerable discretion vested in the Board. Congress chose broad language, and then left it to the Agency to act in its discretion, 

so long as it does not depart from the principles. A few examples will suffice: 

1. Congress said that an employer shall not ‘‘interfere with’’ Section 7 rights. Is 

it ‘‘interference’’ to prohibit persons who are not employees of the property owner 

from engaging in union solicitation on company property? If the persons are truly 

outsiders, the Supreme Court has told us that the answer almost always is ‘‘no.’’ 

But what happens if the persons are employees of a tenant of the property owner 

who come to work on that property every day? This is an issue on which the Board 

held oral argument about a month ago. 

2. Should employees have the right to oust or change a representative? The simple 

answer is ‘‘yes,’’ but the Board has the power to limit this right in the interest of 

bargaining stability through contract-bar rules, certification year rules, and ‘‘reasonable time’’ insulated periods. In its recent decision in Dana Corp., 351 NLRB No. 

28 (2007), the Board adjusted the balance between freedom of choice and bargaining 

stability. 

3. Should the duty to bargain include the duty to supply information? The simple 

answer is ‘‘yes,’’ but the Board has the discretion to determine such matters as relevance and confidentiality. The Board historically has distinguished between information that pertains to employees within the bargaining unit the union represents 

and information that pertains to employees or entities outside the bargaining unit. 

In the former case, the information is presumptively relevant and the union is entitled to the information without any further showing. In the later case, the information is not presumptively relevant, and the union is not entitled to the information 

unless it can show that it is relevant to the union’s duties as the collective barVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00028 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
23

gaining representative. The Board currently is considering when and to whom the 

union must demonstrate that such requested information is relevant. 

Reversal of Precedent 

With such difficult policy judgments in mind, it is not surprising that Board law 

changes from time to time. The Board’s freedom to act within parameters means 

that over time different Boards will act in different ways. 

Our Board, indeed, has reversed precedent but not as frequently as the Board did 

during the years 1994 to 2001. Having compiled the statistics for a paper delivered 

at the American Bar Association, Section of Labor and Employment Law, 34th Annual Development of the Law Under the National Labor Relations Act Mid-Winter 

Committee Meeting on February 26 to March 1, 2006, G. Roger King reported: 

From March 1994 until December 2001 the Clinton Board issued 60 decisions 

* * * which reversed Board precedent. 

In these 60 decisions 1,181 years of precedent were overturned, or ‘‘lost.’’

During this timeframe [December 2002 to February 2006] the Bush II Board 

issued 9 decisions * * * which reversed precedent. 

When all cases decided by the Bush II Board which reversed precedent are included 146 years of precedent was ‘‘lost.’’

From February 2006 until present, our Board issued an additional 12 decisions 

that overruled precedent, and the number of years of precedent ‘‘lost’’ was 197. In 

total, the prior Board issued 60 decisions that overruled 1181 years of precedent and 

our Board has issued only 21 decisions that overruled 343 years of precedent. The 

bottom line is that our Board reversed precedent only one-third as many times as 

the prior Board. Moreover, in many of these cases we restored the precedent that 

had been overruled by the prior Board. 

This evolution of policy is precisely what Congress intended when it gave the 

Board policy-making function. So long as the Board does not stray from the Act’s 

fundamental principles, and so long as the Board explains the reasons that impel 

it to disagree with a prior decision, the Board has the power to change. The Act 

envisions the federal judiciary as the arbiter of the Board’s statutory faithfulness. 

Where the Board has strayed too far from the Act’s fundamental principles or has 

not explained its reasons, the Courts will decline to enforce the Board’s decisions. 

As noted earlier, our enforcement record in the Courts of Appeals is at a historic 

high, which is strong proof that our decisions have been faithful to the statute. 

Of course, all responsible Members realize the value of stare decisis—. the value 

of having stability, predictability and certainty in the law. However, if a Member 

honestly believes that a prior precedent no longer makes sense, and that a change 

would be more in keeping with the fundamental principles described above, he/she 

can—and may feel obligated to—vote to change the law. To be sure, the values of 

stare decisis counsel against an onslaught of changes. But prudently exercised, 

change is proper and, indeed, was envisaged by Congress. 

Similarly, because of the limited terms of Members, and the evolving composition 

of the Board, it is not surprising that some Boards will be viewed as being more 

liberal and other Boards as being more conservative. Although such characterizations grossly oversimplify the decisional process and do not account for each Board 

member’s personal and usually nuanced policy orientations, the characterizations 

may well describe public perceptions. In view of the structure set up by Congress, 

this should not be seen as startling. But again, prudence requires that a given 

Board not swing radically to the left or right. 

Overall, the Board has not had radical swings to the left or right. Most of the law 

is well-settled, and the parties litigate the facts under those principles. In a few 

areas, the law has gone through periods of flux, but ultimately it has settled down. 

For example, the Board flip-flopped for years on whether misrepresentations are objectionable conduct in an election context. But, in Midland, 263 NLRB 127 (1982), 

the Board ultimately held that such conduct would not ordinarily be objectionable. 

The law has been thus for 23 years. Similarly, the Board wrestled for years as to 

the burdens of proof in 8(a)(3) cases. Finally, the Board articulated a clear test in 

Wright Line, 251 NLRB 1083 (1980). The law has been thus for 25 years. In addition, the Board held for a time that interrogation about Section 7 activity was per 

se coercive. After judicial criticism, the Board abandoned this approach in Rossmore 

House 269 NLRB 1176 (1984). The law has been thus for over 20 years. Finally, 

the Board once held the view that plant relocations were contract modifications, 

even if the contract contained no clause proscribing relocations. Milwaukee Spring, 

235 NLRB 720 (1978). The Board later abandoned that view, Milwaukee Spring, 268 

NLRB 601.(1984), and then held that relocations were bargainable only in limited 

circumstances. Dubuque Packing, 303 NLRB 368 (1991). The law has been thus for 

over 16 years. 

24

Protecting Workplace Democracy 

These are examples of Board fluctuations which ultimately resulted in stability. 

I submit that the ultimate stable point was true to the Act’s fundamental principles. 

By being true to its principles, and yet flexible enough to change, the Board has 

continued to serve the national interest in protecting workplace democracy. 

Throughout the years, the NLRB has been a bastion protecting the right of workers to choose union representation or no representation, and if they choose union 

representation, to make sure that the Act’s twin objectives for the collective bargaining process are carried out—that the parties bargain in good faith and that they 

do so free from governmental interference. We continue to vigorously uphold workers’ rights and the Act’s bargaining process objectives in a fair and balanced manner. 

Chairman ANDREWS. Mr. Chairman, thank you. 

Member Liebman, with your consent, what we are going to do 

here is ask Senator Isakson for his opening statement at this time, 

and then we will proceed to your statement, ma’am. 

Welcome home, Johnny, back from the House. 

Senator ISAKSON. Thank you, Mr. Chairman. And I apologize to 

the gentlelady for being late, but we had a couple of votes in the 

Senate. And I will cut my statement very short. 

Quite frankly, when I heard about this hearing, I wondered what 

it might be about because I didn’t know of anything pending that 

would cause a typical congressional hearing to take place. And then 

I read Chairman Miller’s press release that was issued about it. 

And I want to read one sentence from it that basically is the sentence that troubles me about the intent of the hearing. 

It says, ‘‘The Bush’s NLRB decisions may be appealed to the 

United States Circuit of Appeals and ultimately to the United 

States Supreme Court, a process which after 60 years has not produced sufficient clarity or managed to protect workers.’’ So basically, I take it, that this is to discuss decisions that have been 

made in the past by the Supreme Court when they upheld NLRB 

rulings or possibly even discuss decisions that are pending either 

before the court or on appeal. 

In either case, the Congress has no business in this branch of 

government calling either the judiciary or for that matter, the executive branch before while a case is pending. The NLRB was created 

by Congress in 1935 to be an independent, quasi-judicial body. 

Their decisions, like those of judges, speak for themselves. There 

is no reason why the board members should have to come to Capitol Hill to explain themselves. 

NLRB’s decisions can and are appealed in the Federal Circuit 

Court. And undoubtedly, some of those cases the majority wishes 

to discuss today are in the process of being appealed. But I want 

to point out that when these cases are appealed, the courts overwhelmingly stand behind the board. In fact, the courts have upheld 

their decisions in whole or in part 97 percent of the time. 

Our founding fathers created a three-legged stool of government, 

the executive, the legislative, and the judicial branch. And ultimately the decisions the executive branch makes in interpreting 

the laws that the legislative branch passes, if there is a question, 

go to a court system, which is the ultimate appeal, not a committee 

of the United States Congress. 

And I yield back the balance of my time. 

[The statement of Senator Isakson follows:]

25


isak-1.eps
26

Chairman ANDREWS. I thank the senator. 

And I welcome Member Liebman. And we will hear her testimony. 

STATEMENT OF HON. WILMA LIEBMAN, MEMBER, NATIONAL 

LABOR RELATIONS BOARD 

Ms. LIEBMAN. Thank you. Good morning, Chairwoman Murray, 

Ranking Member Isakson, Chairman Andrews, and Ranking Member Kline, and members of the subcommittee, thank you for inviting me to testify about the recent decisions of the National Labor 

Relations Board. And thank you for holding this hearing. 

For too long labor law and policy issues have been removed from 

public discussion. The controversy over the board’s recent decisions 

has had the positive effect of focusing public attention on these 

issues. They matter to working people, to businesses, and to our 

economy and society as a whole. 

I have dissented from many of the board’s decisions. Those 

issued in September are the climax of a trend that is now several 

years old. The impact on workers’ rights has been uniformly negative. 

Today fewer workers have fewer rights and weaker remedies 

under federal labor law. Virtually every recent policy choice made 

by the board impedes collective bargaining, creates obstacles to 

union representation, or favors employer interests. The result is a 

loss of faith in the board and growing disenchantment with the 

law. 


isak-2.eps
27

Some might say that the current board’s decisions simply reflect 

the typical change of orientation that occurs with every new administration. But something different is going on now. More see change 

than seesaw, not just tilting the seesaw, but tearing up the playground. 

It was not surprising, perhaps, when the current board reflectively overruled a series of decisions by the prior Clinton board. 

But it has also reached back decades in some cases to reverse longstanding precedent going to the core values of this statute. 

The loss of confidence in the board is reflected in our dramatically declining case intake. Increasingly disillusioned, unions have 

turned away from the board, especially its election machinery. 

It is a troubling signal when protesters converge on the board 

and demand that it be closed for renovations. To dismiss this discontent as merely politics is a mistake, if not irresponsible. 

Time does not permit me to discuss these decisions in any detail. 

I have tried to do that in my written statement. Nearly all of the 

significant decisions include dissents, which hopefully speak for 

themselves. 

In September, the board issued divided decisions that, among 

other things, created obstacles for employers and unions who want 

to establish relationships by means of voluntary recognition, a case 

I might add that cannot be appealed under our statutory scheme 

to the courts of appeals. The September decisions also made it easier for employers to withdraw recognition from a union without an 

election, legalized hiring discrimination against some who seek to 

organize a workforce, made it harder for those who have been unlawfully fired to collect remedial back pay, and allowed employers 

to file retaliatory lawsuits against unions and employees without 

fear of being held liable. 

None of these decisions should have surprised a careful observer 

of the current board. In my written statement and in a new article 

in the Berkeley Journal of Employment and Labor Law I have surveyed the work of the current board, its rulings, and its decisionmaking process. For people who are committed to the goals of the 

National Labor Relations Act, it is a troubling story. 

The board has said for the first time that freedom of choice, 

which is to say the freedom to reject union representation, prevails 

in the statutory scheme over promoting collective bargaining. It 

has taken special care to ensure that employees are free to refrain 

from union activity and to reject union representation while showing little concern about the rights of employees to engage in concerted activity, to choose and keep a union, and to be free from 

anti-union discrimination. 

And in case after case, it has found that employees’ statutory 

rights must yield to countervailing business interests of all sorts, 

including private property rights, various managerial prerogatives, 

notions of workplace civility, and employer free speech rights. 

Under this statute, when policy choices so persistently go this way, 

we have a problem. 

In addition, the board has regularly ignored the economic realities of the workplace or the vulnerability of working people. And 

it has departed from established law without adequate predicate or 

good reason, as the dissents have argued. 

28

Today’s labor laws were the product of tremendous struggle. We 

honor that struggle when we take the act seriously, when we enforce it fairly and thoughtfully, and even when we point out its 

shortcomings. Certainly, the board operates under significant constraints, a judicial, political, and economic climate indifferent or 

even hostile to collective bargaining, and arguably antique statute. 

Still the board can play a meaningful role in preserving the values of this act and in furthering its aim. Its failure to do even that 

is a lost opportunity. 

At a time when union membership is at an historic low point and 

the earnings gap growing, board decisions threaten to undo the 

law’s assumption about collective action as a means to redress economic inequality. Restoring federal labor law to its intended purposes is obviously no panacea, but it would be a step in the right 

direction. 

Thank you. And I would be happy to answer your questions. 

[The statement of Ms. Liebman follows:]

Prepared Statement of Hon. Wilma B. Liebman, Member, National Labor 

Relations Board 

Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and Ranking 

Member Kline, and Members of the Subcommittees: Thank you for inviting me to 

testify today about the recent decisions of the National Labor Relations Board and 

their impact on workers’ rights. It is my privilege to appear before you today. 

I dissented from many of the Board’s recent decisions—and from many earlier decisions, as well. Unfortunately, their impact on workers’ rights has been uniformly 

negative. As Member Dennis Walsh and I said in one dissent, the Board’s recent 

decisions ‘‘will surely enhance already serious disenchantment with the [law’s] ability to protect the right of employees to engage in collective bargaining.’’1 While any 

one decision standing alone may not be cataclysmic in impact, viewed together, they 

represent a pattern of weakening the protections of the Act. 

Today, fewer workers have fewer rights, and weaker remedies, under the National 

Labor Relations Act. Virtually every recent policy choice by the Board impedes collective bargaining, creates obstacles to union representation, or favors employer interests. It is inconceivable under this statute that the answer could always be the 

same. No wonder that there has been loss of faith in the Board. That development 

is regrettable. It exacerbates an already existing concern whether the Act is still effective in protecting the right to organize and in promoting collective bargaining—

the core purposes of federal labor law, alongside ensuring employee free choice in 

these matters. 

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

government. 

Now in my third term, I am the longest-serving Member of the current Board. 

I began my service a little more than ten years ago, on November 14, 1997, after 

being appointed by President Clinton and confirmed by the Senate. I was reappointed and confirmed in 2002 and again in 2006. My current term expires in August 2011. By that time, I will be the third longest-serving Member in the history 

of the Board. 

Before joining the Board, I served for several years at the Federal Mediation and 

Conciliation Service (FMCS), first as Special Assistant to the Director and then as 

Deputy Director. I came to the FMCS from a labor union, the Bricklayers and Allied 

Craftsmen, where I served as Labor Counsel. Previously, I had been legal counsel 

at the International Brotherhood of Teamsters for nine years. I began my legal career at the Board, where I served as a staff attorney from 1974 to 1980, after graduating from the George Washington University Law Center here in Washington. In 

short, my career has come full circle: from the Board, to the Board. 

I understand that today’s hearing was prompted by the flurry of decisions issued 

by the Board in September of this year, as its fiscal year drew to a close. I will address some of those decisions specifically, from a dissenter’s perspective. But first, 

I would like to thank both Subcommittees for focusing attention on the Board and 

its work. 

29

For too long, labor law and policy issues have been removed from public policy 

discourse. These are difficult issues, and consensus on resolving them may be hard 

to achieve—which must explain why the National Labor Relations Act has not been 

significantly amended since 1947. But I would hope for a common recognition that 

these issues are important, no matter how dry and legalistic they sometimes seem—

that they matter to working people, to businesses, and to our economy and our society as a whole. It is critical that these issues receive informed consideration from 

the public and from the Congress. If our industrial era law does not keep pace with 

the realities of today’s economy and the evolving workplace, then the protections it 

seems to offer workers are illusory. Today social and economic pressures on the collective bargaining system are compounded by a legal regime that is making it harder for that system to work and by an administrative agency that, at bottom, lacks 

commitment to fixing the problem.2

B. Let me turn to the Board’s September decisions, and begin by putting them 

in context. First, the decisions attracted attention not only because of their holdings, 

but because they were issued more or less as a group. On that last score, I hesitate 

to fault my colleagues at the Board. The Board’s goals for promptly deciding cases, 

under the Government Performance and Results Act (GPRA), are keyed to the fiscal 

year, which ends on September 30. It has become common in recent years for the 

Board to push hard during the final months of the fiscal year to issue decisions: in 

effect, to rush to meet the GPRA deadline. That practice may not be ideal, but it 

is not nefarious. The result, of course, may be that several major decisions issue virtually at once. And if those decisions all, or nearly all, cut the same way, their impact is felt more forcefully, and the perception of unfairness is more acute. That is 

what happened this year. 

That said, there is something extraordinary about the Board’s recent decisions. 

They are the climax of a trend that is now several years old. The Board is notorious 

for its see-sawing with every change of Administration. But something different is 

going on—more ‘‘sea change’’ than ‘‘see-saw.’’ The current Board, it seems to me, is 

divorced from the National Labor Relations Act, its values, and its goals. Its decisions have demonstrated as much. It was not surprising, perhaps, when the current 

Board reflexively overturned a series of decisions by the prior, Clinton Board. But 

the current Board has reached back decades, in some instances, to reverse long-established precedent, often going to the core values of this Act. And it has often reversed precedent on its own initiative, without seeking briefing or oral argument. 

Most important, when the Board has decided to reverse precedent, its reasons for 

doing so have fallen short—as dissenting opinions have pointed out.3

The result has been more than a change in the law, or discontent with the outcome of particular cases. It has been a loss of confidence in the Board and the legitimacy of the process, not only among persons and groups on the losing end of Board 

decisions, but also among neutral observers, including labor-law scholars.4 The 

Board’s case intake is down accordingly. Unions have turned away from the Board’s 

election machinery, and employees and unions hesitate to file unfair labor practice 

charges, skeptical—or even fearful—of the result.5 In an historic twist, unions are 

increasingly turning to state or local governments for help in protecting workers, 

with diminished hope that the federal government can be a guarantor of important 

rights. It is a troubling signal when protesters converge on the Board and demand 

that the Board be closed for renovations. To dismiss this discontent as merely politics is a mistake, if not irresponsible. We all have an interest in preserving the legitimacy of the legal process. 

C. I will highlight only a few of the decisions issued by the Board in September 

2007. Nearly all of the significant cases include a dissent, which hopefully speaks 

for itself. 

Of the September cases, the most significant, and disturbing to me, is a decision 

creating new obstacles for employers and unions who wish to establish a collectivebargaining relationship by means of voluntary recognition. In recent years, unions 

have increasingly sought to bypass the Board’s election machinery and to negotiate 

voluntary recognition arrangements. The Board’s procedures are seen as taking too 

long, leaving employees vulnerable to coercion by employers, and generating campaign animosity that can taint a new bargaining relationship. 

Under long-established law, an employer is free to recognize a union voluntarily—

rather than demanding that the Board conduct an election—if the union is able to 

demonstrate that it has uncoerced majority support among employees, typically by 

collecting signatures on authorization cards.6 After voluntary recognition, the Board 

will not entertain an election petition, or permit an employer to withdraw recognition from the union unilaterally, until a reasonable period for collective bargaining 

has elapsed. This so-called ‘‘recognition bar’’ rule—which encourages voluntary recVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
30

ognition and stabilizes collective bargaining—has been in place, without challenge, 

for 40 years.7

No longer. In Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), the Board overruled 

precedent and jettisoned the recognition bar, without solid factual support for its 

ruling. In dissenting from the Board’s decision to consider the issue raised in Dana, 

Member Walsh and I observed that with respect to voluntary recognition, union 

‘‘[s]uccess * * * has prompted greater scrutiny’’ by the Board.8

Now, when an employer agrees to voluntarily recognize a union, after the union 

has demonstrated majority support, it must post a notice informing employees that 

it has done so and telling them how they can get rid of the union. That posting 

opens a 45-day window period, during which employees—provided they marshal 30 

per cent support among their co-workers—may petition the Board for an election to 

decertify the union. 

In dissent, Member Walsh and I explained the serious flaws in the majority’s decision. The majority failed to recognize that voluntary recognition is a ‘‘favored element of national labor policy,’’ as at least one federal appellate court has put it.9

By effectively putting voluntary recognition under a cloud, the majority’s new 

scheme discourages employers from recognizing unions without an election. And if 

an employer does extend voluntary recognition, the parties’ new collective-bargaining relationship cannot operate effectively until the window-period closes. 

Unions will be under great pressure to produce results for employees during that 

period, yet employers will have little incentive to bargain seriously, if they cannot 

be sure the relationship will continue. As the dissent put it, the decision in Dana 

‘‘relegates voluntary recognition to disfavored status by allowing a minority of employees to hijack the bargaining process just as it is getting started.’’10

I should point out that the notice to employees required in Dana—informing them 

that they may challenge the employer’s voluntary recognition of a union—is unprecedented. Remarkably, more than 70 years after the National Labor Relations Act 

was passed, the Board does not require employers to post any notice informing employees of their rights under federal labor law, except three days before a scheduled 

election and as a remedy in cases where the employer has committed an unfair 

labor practice.11 The Board has never acted on long-pending petitions for rulemaking requiring such a notice. It is high time we did. 

This is not the only aspect of the Dana decision that at least suggests a doublestandard. In Dana, one of the reasons offered by the majority for its new rule is 

the claim that Board elections are more reliable in determining employees’ true 

wishes than are the signed cards typically collected by unions to establish majority 

support. In this respect, Dana can be contrasted with another September decision, 

Wurtland Nursing & Rehabilitation Center, 351 NLRB No. 50 (Sept. 29, 2007). 

There, a two-Member majority held that an employer had lawfully withdrawn recognition from a union—without an election—because the union had lost majority 

support. The majority relied on a petition signed by a majority of employees that 

stated: ‘‘We the employee’s [sic] * * * wish for a vote to remove the Union. * * *’’ 

The employees, of course, did not get the vote they wanted; rather, their employer 

was permitted to decide for them whether they would continue to be represented 

by the union. In dissent, Member Walsh argued that the employer should have been 

required to seek a Board election.12 The majority rejected that view, concluding that 

the petition—despite its, at best, ambiguous wording—was enough to establish that 

employees no longer wanted union representation. 

In Dana, then, employee-signed cards are treated as suspect when they are used 

to establish union representation. But in Wurtland, the Board had no trouble in relying on an employee-signed petition to end union representation, without an election, even though employees seemed to be asking precisely for an election. That contrast understandably raised questions about the Board’s fairness.13 From all appearances, the current Board is much more protective of employees who wish to reject 

unionization than it is of employees who seek to unionize. Likewise, unilateral employer action to withdraw recognition from a union is apparently favored, but unilateral employer action—without a Board election—to recognize a union is not.14

Another troubling September decision was Toering Electric Co., 351 NLRB No. 18 

(Sept. 29, 2007). There, the Board cut back on the protections granted to union 

salts: union members who apply for work with non-union employers in order to uncover anti-union discrimination and, if hired, to engage in organizing activity. Salting is an important organizing tool for many unions, especially in the construction 

industry. The Supreme Court has held, unanimously, that salts are statutory employees under the National Labor Relations Act and thus are entitled to the protection of the law, including when they seek work.15

In cases involving salts, the Board’s framework for finding unlawful hiring discrimination was carefully crafted in a bipartisan 2000 decision, FES, 331 NLRB 9 

31

(2000). The current Board, however, has moved farther and farther away from FES, 

taking an approach to salting that is at odds with Supreme Court doctrine and that 

makes it easier for employers to engage in anti-union discrimination. 

To begin, in a May 2007 decision, Oil Capitol Sheet Metal, Inc., 349 NLRB No. 

118 (May 31, 2007), a Board majority—without being asked to and without inviting 

briefs—adopted new rules for determining the length of the backpay period and entitlement to other remedies when a union salt has been discriminated against. Reversing Board precedent that had been approved by the federal courts, the majority 

said that it would no longer presume that a salt would have worked from the date 

he was unlawfully denied employment until the date the employer made a valid job 

offer to him—the general presumption that applies to all victims of unlawful discrimination. This rule is an example of the well-established principle in Board law 

(and in our legal system generally) that uncertainties are to be resolved against the 

wrongdoer: here, the employer who engaged in unlawful discrimination. Rather than 

adhere to this principle, the majority adopted a new rule, effectively requiring the 

salt to prove how long he would have worked—despite the fact that he had never 

been hired in the first place and that there is no practical way to establish how long 

an organizing drive might have lasted, or how it would have turned out, if the salt 

had been hired. Failure to meet this evidentiary burden not only cuts off backpay, 

but also precludes being instated on the job, as a remedy. As Member Walsh and 

I pointed out in our dissent, that approach is fundamentally unfair. We said that 

the Board was treating salts as ‘‘a uniquely disfavored class of discriminatees.’’ 349 

NLRB No. 118, slip op. at 10. 

In September, the Board went farther, again acting on its own initiative, without 

briefing, oral argument, or even a request to reconsider precedent. The Toering decision held, in effect, that employers were free to discriminate against union salts, unless it could be proved that the salts were genuinely interested in employment (as 

the Board only vaguely defined it). Of course, one purpose of salting is to uncover 

anti-union discrimination, just as civil rights groups employ testers to seek housing 

or employment.16

That decision marked a fundamental shift away from the traditional analysis in 

labor-law discrimination cases. Historically, discrimination cases have turned on the 

motive of the employer, not on the motive of the applicant for employment. Under 

the Board’s new approach, an employer who categorically refused to hire union 

members would commit no violation of the law, unless a salt could prove that he 

would have accepted the job, if offered. Let me be clear. The Board did not simply 

limit the remedies for salts who failed to meet their evidentiary burden. Rather, it 

held that there could be no violation of the Act, without satisfactory proof of a genuine interest in employment—even if the employer’s refusal to hire the salt was not 

motivated, in the least, by the salt’s level of interest in the job. 

In dissent, Member Walsh and I quoted the Supreme Court’s words in a historic 

1941 decision, holding that job applicants (and not merely current employees) were 

protected by the National Labor Relations Act: 

Discrimination against union labor in the hiring of men is a dam to self organization at the source of supply. The effect of such discrimination is not confined to the 

actual denial of employment; it inevitably operates against the whole idea of the legitimacy of organization. 

Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 185 (1941). We said that the Toering 

decision ‘‘creates a legalized form of hiring discrimination.’’ 351 NLRB No. 18, slip 

op. at 21. 

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

Let me offer two examples. 

In St. George Warehouse, 351 NLRB No. 42 (Sept. 30, 2007), the Board reversed 

more than 45 years of precedent to hold, for the first time, that the General Counsel 

was required to present evidence that an unlawfully-discharged employee took reasonable steps to find a new job after being fired, at the risk of being denied remedial 

backpay. Traditionally, it has been the employer’s burden—as the wrongdoer—to establish that jobs were available and that the employee did not try hard enough to 

find one. In dissent, Member Walsh and I explained why the Board’s traditional approach was fair and reasonable. Writing separately, I also made a more general 

point: that the majority was weakening a remedy that ‘‘has long been widely recognized as terribly weak to begin with.’’ 351 NLRB No. 42, slip op. at 11. Labor-law 

scholars seem to be in unanimous agreement that the Board’s backpay awards, because they require employees to mitigate their losses, are simply too small to deter 

employers from breaking the law.17

32

A second, unfortunate backpay case issued in September was the panel decision 

in Grosvenor Resort, 350 NLRB No. 86 (Sept. 11, 2007). There, a two-Member majority held, among other things, that certain employees, who had been unlawfully 

permanently replaced for striking, forfeited the right to full backpay, because they 

waited too long—more than two weeks—before seeking new work. To hold otherwise, the majority said, would ‘‘reward idleness.’’ 350 NLRB No. 86, slip op. at 3. 

Member Walsh dissented, pointing out that the employees ‘‘did not sit idly by; they 

were engaged in concerted action [an unfair labor practice strike] to get their jobs 

back’’ and ‘‘[o]nce it became clear that that was not going to happen, * * * they all 

sought and obtained work.’’ Id. at 11.18 Member Walsh dissented as well from another, troubling holding of the majority: that certain employees who found interim 

work should have looked for additional work, instead of waiting for those jobs to 

begin. As Member Walsh pointed out, there is no good policy reason for demanding 

that employees look for ‘‘’interim interim’ work.’’ Id. at 13. In its parsimonious dissection of backpay claims, Grosvenor Resort suggests that the current Board is not 

committed to providing adequate remedies to victims of unfair labor practices. Reading Grosvenor Resort, one almost wonders who the wrongdoer really was: the employer or the employees. What reasonable employee will risk exercising her labor 

law rights, if she is uncertain about her chances at the Board, but can count on a 

long delay before a violation might be found, more delay before a remedy is awarded, and a meager remedy in the end. 

For some apparent violations of the Act, finally, the Board will no longer grant 

any remedies. Among the September decisions was BE & K Construction Co., 351 

NLRB No. 29 (Sept. 29, 2007), a case on remand from the Supreme Court. There, 

the majority held that a lawsuit that interferes with activity protected by the Act 

is lawful, even if it was filed with a retaliatory motive, so long as there is a reasonable basis for bringing the suit. In other words, even if an employer’s sole motive 

in bringing the suit is to punish employees financially for daring to exercise their 

labor-law rights, and even if the suit itself is part of a coordinated series of unfair 

labor practices, the employer has not committed an unfair labor practice by pursuing litigation. It is certainly true that in this area, the Board must proceed carefully, in light of an employer’s constitutional right to petition the government, including by filing a lawsuit against employees and their union. But the majority’s 

position in BE & K that its sweeping protection of employer lawsuits was somehow 

dictated by the Supreme Court is simply incorrect, as Member Walsh and I pointed 

out in dissent. 

D. I have touched on only some of the Board’s September decisions. But rather 

than discuss all of them, I would point out that none of these decisions should have 

surprised a careful observer of the current Board. They represent the crest of a 

wave set in motion five years ago, when the labor-law tide turned. 

Where decisional choices are available to the Board, the choice too often selected 

narrows statutory coverage or protection. Fewer workers have been afforded fewer 

rights; employee rights are subordinated to countervailing business interests; meaningful remedies are denied; and recent decisions that tried to update the law have 

been overruled. Increasingly, the Board has adopted a formalistic approach to interpreting the law, turning away from the real world and the challenges it poses for 

labor policy.19

To begin, the 2001-present Bush Board (in its various incarnations) has almost 

reflexively overruled many of the key decisions issued by the prior Clinton Board, 

which had endeavored to update the law by affording greater protections to workers 

in an evolving economy. For example, modest efforts were made to give more workers coverage under the Act’s protections,20 to enhance the ability of contingent workers to engage in collective bargaining,21 to preserve representational rights after a 

corporate merger or consolidation,22 and to provide non-union workers (more than 

90 percent of today’s private sector workforce) with an important protection against 

unfair discipline.23

Simultaneously, the present Board majority has undermined long-established doctrines that promote collective bargaining by allowing employers and unions to enter 

into voluntary recognition arrangements.24 The Board has demonstrated a corresponding reluctance to revisit doctrines that hinder collective bargaining by allowing employers to unilaterally terminate collective bargaining relationships,25 making it more difficult to bring the ‘‘necessary party’’ into the collective bargaining 

process,26 facilitating employer pressure on employees to reject unionization,27 placing artificial barriers in front of voluntary recognition of unions by employers,28 and 

permitting employers to retaliate against employees for engaging in statutorily-protected conduct.29

Perhaps the best illustration of the Board’s current decisionmaking is its 2006 decision in Oakwood Healthcare, Inc.,30 interpreting key terms in the Act’s definition 

33

of a ‘‘supervisor.’’ This decision came in the wake of the Supreme Court’s decision 

in Kentucky River,31 which had rejected the Clinton Board’s attempt at a limiting 

interpretation with respect to professionals. In Oakwood, the Board majority—relying on dictionary definitions of ambiguous statutory terms, without explaining the 

choice among definitions—selected a more-expansive-than-necessary reading of the 

supervisory exclusion. The majority expressed its indifference to the impact of its 

decision, rejecting what it called the dissenters’ ‘‘results-driven approach’’ in looking 

to the potential real-world consequences of the majority’s interpretation.32 The 

Board thus issued a decision that potentially swept many professional employees 

outside of the Act’s protection, while failing to engage in the sort of reasoned decision making that Congress expected from the Board. 

Unfortunately, Oakwood reflects a trend to limit the coverage of the Act itself.33

When non-traditional (or non-traditionally employed) workers have sought to organize themselves into a union, the Board majority has denied them statutory ‘‘employee’’ status: graduate teaching assistants,34 disabled workers,35 artists’ models,36

and newspaper carriers.37 The Board has also limited the ability of contingent employees—workers supplied by one employer to another—to engage in collective bargaining.38

In these cases, the majority justified its decisions on dubious policy grounds, giving little weight to the plain language of the Act (which is perhaps surprising, given 

the majority’s adherence to a narrow textualism in Oakwood).39 The Board largely 

ignored the economic realities of the employment relationships in question, and declined to exercise its discretion to afford a broader group of workers a right to collective representation. 

What is the result? Fewer workers have fewer rights under the Act. In several 

recent decisions, the Board majority has chosen a very confined view of ‘‘concerted’’ 

activity for the purpose of ‘‘mutual aid or protection,’’ as protected by section 7 of 

the Act.40 All private sector workers covered by the Act, union-represented or not, 

have the right to engage in these activities. Yet, in IBM Corp.,41 the Board held 

that, unlike unionized workers, employees in the non-union sector have no right to 

a witness at an investigatory interview that might lead to discipline. IBM reversed 

the recent Epilepsy Foundation42 decision, which was significant not just for its specific holding, but also for its reminder that the statute’s protections apply to unrepresented workers, whether they know it or not.43 With IBM, the Board signaled that 

it was not prepared to treat non-union workers as fully within the Act’s protection. 

Because so few private sector employees are unionized, statutory protections for 

non-union workers have never been more important. Such workers do, in fact, spontaneously act together to seek better working conditions,44 and thus the Act might 

well matter to them. 

The Board majority regularly has found that employee statutory rights must yield 

to countervailing business interests. These interests are far-ranging. They include 

private property rights (including an employer’s property interest in a piece of scrap 

paper used to post a union-meeting notice),45 various managerial prerogatives,46

business justifications,47 notions of workplace decorum and civility,48 and employer 

free speech rights.49 In cases involving unionized workers, the decisions signify a 

laissez-faire approach to bargaining, giving employers free rein to operate without 

meaningful bargaining.50 Where non-unionized workers were involved, these cases 

signal that their right to join together to improve working conditions is largely illusory. In several cases, intimidating employer statements made during an organizing 

campaign were found to be lawful expressions of employer free speech.51 But where 

employees make statements or engage in conduct seen as exceeding rules of civility, 

decorum, or loyalty, the employees have been held to have lost the protection of the 

Act.52 These decisions suggest an underlying discomfort with government regulation 

of business, the notion of collective action, and the zeal that may accompany those 

efforts: the fundamental premises of this statute. 

Although truly meaningful and effective remedies for unfair labor practices are 

limited under the Act, the Board nonetheless has refused to exercise the full remedial discretion it does have. For example, the Board has been reluctant to pierce the 

corporate veil to impose liability for unfair labor practices.53 The regular refusal to 

issue Gissel bargaining orders (which require an employer to recognize a union with 

majority support, where the employer’s unfair labor practices have frustrated the 

election process) is another such example.54 So too is the continuing rejection of the 

‘‘minority’’ bargaining order, where an employer’s egregiously unlawful conduct has 

prevented a union from establishing majority support.55 The Board has also shown 

no interest in adopting new modest monetary remedies for victims of discrimination.56 Indeed, the Board’s rulings have created new obstacles to backpay awards.57

Decisions about other minor remedial innovations, such as the electronic posting of 

required notices to employees, have been deferred for no compelling reason.58

34

Some of the Board’s recent decisions have failed to survive judicial scrutiny.59

Other decisions have navigated the layers of precedent by ignoring precedent entirely or by distinguishing earlier cases on abstract, questionable grounds.60 And too 

many decisions have cast doubt on precedent unnecessarily, or have applied it reluctantly, suggesting that the law may soon change, and sowing confusion.61 This kind 

of decisionmaking is of little use to parties struggling to make sense of their statutory rights and duties. While it may dispose of particular cases, it is ultimately 

unhelpful in shaping a coherent national labor policy. 

Meanwhile, the Board’s approach to exercising and preserving its own authority 

is contradictory. It has jealously guarded its representation-case functions (discouraging union attempts to organize outside the Board’s procedures),62 while eagerly 

deferring to dubious arbitration decisions in unfair labor practice cases (sometimes 

frustrating the vindication of statutory rights).63

Perhaps this contradiction can be explained by the Board’s orientation toward protecting employee free choice in the narrow sense: taking special care to ensure that 

employees are free to refrain from union activity and to reject union representation, 

while showing little concern about the rights of employees to engage in concerted 

activity, to choose (and keep) a union, and to be free from anti-union discrimination. 

Several Board decisions have made it more difficult for unions to organize workers.64 As discussed above, the Board has rolled back protections for ‘‘salts,’’ union 

members who seek employment to engage in organizing activity.65 Other decisions 

have shown a disappointing reluctance to confront what clearly seemed to be wholescale employer discrimination in hiring.66 Tellingly, the Board has stated expressly, 

for the first time, that the exercise of employee free choice is superior in the statutory scheme to the stability of collective bargaining.67 This elevation of one of two 

competing ideals in the Act undoes the delicate balance long established in Board 

doctrine, and signals a devaluing of what is unique about this statute: the protection 

of collective rights. 

E. My testimony today has largely been a reprise of my disagreements with the 

Board’s majority. Regrettably, the Board is deeply divided. I wish that the Board 

were moving the law in a better direction, in harmony with the goals of the statute. 

But let me end my testimony by echoing the remarks that I made at my last swearing-in and by explaining why—even being in the minority, and even at a difficult 

historical moment—I feel honored to serve on the Board and to pursue the values 

embodied in our labor law. 

Every day, I read cases involving working people who, despite the odds and the 

obstacles, join together to improve life on the job. They work on assembly lines and 

in cardiac wards, on construction sites and in mega-stores. They slaughter hogs and 

drive trucks, clean hotel rooms and care for the disabled. Sometimes they have 

unions to help them, but other times they act spontaneously to help each other—

a reminder that solidarity is part of who we are. As long as that is the case, then 

the values embodied in the Act are living values, even after 71 years. 

Whatever its flaws and anachronisms, and whatever the lapses made by the 

Board in applying it, the National Labor Relations Act is a remarkable piece of legislation. At its heart, the Act is a human rights law. No one in 1935 would have 

labeled the statute that way, but the label is accurate. The concept of fundamental 

rights at work is now part of the international legal order. Freedom of association 

and the freedom to engage in collective bargaining are recognized as core principles 

of a democracy. The National Labor Relations Act is the foundation of our commitment to values now recognized around the world. 

Today’s labor laws were the product of tremendous struggle. We honor that struggle when we take the Act seriously, when we enforce it fairly and thoughtfully, and 

even when we point out its shortcomings. Certainly, the Board operates under significant constraints: a judicial, political and economic climate indifferent or even 

hostile to collective bargaining; an arguably antique statute, and a lack of administrative will. Yet I would suggest that the Board, even under the current statutory 

scheme, can play a modest but meaningful role in preserving the values of this Act 

and in furthering its aims. Its failure to do even that is an unfortunate lost opportunity. At a time when union membership is at a historic low point, and the earnings gap growing, recent Board decisions are reinforcing trends that imperil collective bargaining as a national policy goal and that threaten to undo Congressional 

assumptions about collective action as a means to redress economic inequality. Restoring federal labor law to its intended purposes is obviously no panacea. But it 

would be a step in the right direction. 

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

35

ENDNOTES

1Dana Corp., 351 NLRB No. 28, slip op. at 11 (Sept. 29, 2007) (dissent). 

2 I have addressed this larger issue in an article that is forthcoming in the Berkeley Journal 

of Labor and Employment Law. Wilma B. Liebman, Decline and Disenchantment: Reflections 

on the Aging of the National Labor Relations Board, 28 Berkeley J. Employment & Labor L. 

569 (2007). I have submitted the article for inclusion in the hearing record. 3The current Board has been, and remains, deeply divided, in cases both large and small. The 

percentage of dissents may be unprecedented. In 1984, during what is generally regarded as the 

most contentious period in the Board’s recent history—the tenure of Chairman Donald Dotson—

there were dissents in about 17% of all cases, counting dissents by any Member of the Board. 

In comparison, during Fiscal Year 2007, Member Dennis Walsh and/or I dissented in about 34% 

of the cases. 4See references in 28 Berkeley J. Employment and Labor L. at 570-71. 

5The Board has experienced a dramatic, and unprecedented, decline in case filings in the past 

decade. Between fiscal years 1997 and 2007, the number of representation petitions filed 

dropped from 6,179 to 3,324, a 46% decline. (From 2005 to 2006 alone, the representation case 

intake dropped by 26%.) For the same ten-year period, unfair labor practice charges dropped 

from 33,439 to 22,147, a 34% decline. 6 Any person may file an unfair labor practice charge with the Board, attacking the union’s 

majority support as unlawfully coerced. That procedure may lead the Board to require the employer to withdraw recognition from the union. 7See Keller Plastics Eastern, Inc., 157 NLRB 583 (1966); Sound Contractors, 162 NLRB 364 

(1966). 8Dana Corp., 341 NLRB 1283, 1284 (2004) (dissent). 

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

894 (1981). 10 351 NLRB No. 28, slip op. at 17. 11 Notably, the Board has required unions to provide employees with information related to 

the required payment of dues. See California Saw & Knife Works, 320 NLRB 224 (1995), enfd. 

133 F.3d 1012 (7th Cir. 1998). 12Wurtland was decided by a three-Member panel of the Board; I did not participate in the 

decision. I agree with Member Walsh’s dissenting view, however. 13 Curiously, the Dana majority contrasted union authorization cards used to win voluntary 

recognition with an anti-union employee petition, asserting that the petition would lead to an 

election. 351 NLRB No. 28, slip op. at 6 fn. 19. That assertion is simply wrong, as Wurtland 

demonstrates. 14For another example of this orientation, see the Board’s August 2007 decision in Shaw’s Supermarkets, Inc., 350 NLRB No. 55 (2007). There the Board permitted an employer to withdraw 

recognition from the union after the third year of a five-year agreement, even though the employer would not be permitted to file a petition for an election at that point, and even though 

a petition for a decertification election filed by employees was pending at the Board. In response 

to my dissent, the majority stated: 

[T]his is a case where the employer is responding to an unsolicited and uncoerced expression 

of a loss of majority support for the union as a bargaining representative. Our dissenting colleague states that we do not seem to believe that that a Board election, based on the employeefiled petition, will vindicate employee freedom of choice. This is untrue. Rather, our concern is 

that, in the time it takes to ultimately resolve the representation case, employees will be forced 

to endure representation that they have unquestionably rejected. Id., slip op. at 4-5 (emphasis 

added). 

The alarm about Board election delays that justified withdrawals of recognition in Shaw’s and 

Wurtland is expressly minimized in Dana. 351 NLRB No. 28, slip op. at 6-7. 15 NLRB v. Town & Country Electric, Inc., 516 U.S. 85 (1995). 16The courts have held, notably, that job-applicant testers have standing to sue under Title 

VII of the Civil Rights Act, as Member Walsh and I pointed out in our Toering dissent. 351 

NLRB No. 18, slip op. at 16 & fn. 12, citing Kyles v. J.K. Guardian Security Services, 222 F.3d 

289, 300 (7th Cir. 2000). 17See, for example, Paul C. Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA, 96 Harv. L. Rev. 1769, 1789 (1983). 18The case was decided by a three-Member panel. I did not participate in the decision, but 

I agree with Member Walsh’s dissent. 19See, e.g., Bath Iron Works Corp., 345 NLRB No. 33 (2005); Boghosian Raisin Packing Co., 

342 NLRB 333 (2004); Alexandria Clinic, 339 NLRB 1262 (2003). 20 New York Univ. Medical Ctr, 332 NLRB 1205 (2000), overruled by Brown Univ., 342 NLRB 

483 (2004). 21Sturgis, 331 NLRB 1298 (2000), overruled by Oakwood Care Ctr, 343 NLRB 659 (2004). 22St. Elizabeth Manor, 329 NLRB 321 (1999), overruled by MV Transp., 337 NLRB 770 

(2002). 23 Epilepsy Found., 331 NLRB 676 (2000), overruled by IBM Corp. 341 NLRB No. 148 (2004). 24See, e.g., Dana Corp., 351 NLRB No. 28 (2007) (establishing window period for filing decertification petition, following employer’s voluntary recognition of union); Shaw’s Supermarkets, 

343 NLRB 963 (2004) (granting review to consider whether employer waived right to Board election, and whether to permit such waiver with respect to after-acquired stores where union demonstrates majority support). See also Supervalu, Inc., 351 NLRB No. 41 (2007) (holding that contract provision requiring employer to recognize union at newly-organized stores was not mandatory subject of bargaining, absent proof that stores would be included in existing bargaining 

unit); Marriott Hartford, 347 NLRB No. 87 (2006) (granting review to consider whether union 

36

had demanded voluntary recognition, permitting employer to file election petition with Board, 

where union sought agreement for card-check recognition). 25 Nott Co., 345 NLRB No. 23 (2005) (permitting employer to withdraw recognition from union 

and repudiate collective-bargaining agreement, following employer’s acquisition of non-union 

business and consolidation of union and non-union workforces of equal size). 26 Airborne Freight Co., 338 NLRB 597 (2002) (declining to revisit current standard for determining joint-employer status, which requires direct and immediate control over matters relating 

to employment relationship). 27Frito-Lay, 341 NLRB 515 (2004) (following precedent that permits employer ‘‘ride-alongs’’ 

in which employer officials accompany truck drivers for up to 12 hours in order to campaign 

against union). 28 Elmhurst Care Ctr., 345 NLRB No. 98 (2005) (continuing to prohibit employer from voluntarily recognizing union where employer has hired core group of employees, but is not yet engaged in normal business operations). 29 Reynolds Electric, Inc., 342 NLRB 156 (2004) (continuing to apply rule that discharge of 

employee for engaging in concerted protected activity is lawful, absent showing that employer 

was aware of concerted nature of activity). 30 348 NLRB No. 37 (2006). 31 532 U.S. at 706. 32 348 NLRB No. 37, slip op. at 3. 33There are two notable exceptions to this trend: the decision to extend the Act’s coverage 

to casinos on tribal reservations, San Manuel Indian Bingo & Casino, 341 NLRB 1288 (2004), 

enforced, 475 F.3d 1306 (D.C. Cir. 2007), and the decision rejecting the creation of a novel national-security exemption for private airport security screeners, Firstline Transp. Security, Inc., 

347 NLRB No. 40 (2006). 34 Brown Univ., 342 NLRB 483 (2004) (holding that educational relationship is not employment). 35 Brevard Achievement Cnt., 342 NLRB 982 (2004) (holding that rehabilitative relationship 

was not employment). 36Pa. Acad., 343 NLRB 846 (2004) (holding that models were independent contractors). 37St. Joseph News-Press, 345 NLRB No. 341 (2005) (holding that carriers were independent 

contractors). 38Oakwood Care Ctr., 343 NLRB 659 (2004). 39 348 NLRB No. 37. 40See, e.g., Waters of Orchard Park, 341 NLRB No. 93 (2004) (two nurses who phoned a state 

hotline to report excessively hot conditions in a nursing home were not engaged in protected 

activity because their call was made in the interest of patient care, not their own terms and 

conditions of employment); Holling Press, 343 NLRB 301 (2004) (one female worker who sought 

the assistance of another in her sexual harassment charge against a male supervisor was looking out only for herself and not engaged in activity for mutual aid or protection). 41 341 NLRB 1288 (2004). 42 331 NLRB 676 (2000), enfd. in relevant part, 268 F.2d 1095 (D.C. Cir. 2001). 43The majority justified its action by citing changes in the workplace, and, among other 

things, ‘‘the events of September 11, 2001, and their aftermath.’’ 341 NLRB at 1291. In response, the New York City Bar Association issued a highly-critical position paper, which observed that ‘‘[t]o rely on such events in determining the rights of employees under the National 

Labor Relations Act distorts the legitimate decision making process and injects political considerations into a matter of statutory construction.’’ See New York City Bar Association, Media Advisory, The New York City Bar Association Opposes NLRB Decision To Rely on the Terrorism 

Threat as a Reason to Deny Non-Union Employees The Right to Have A Representative Present 

During Disciplinary Interviews (Oct. 20, 2004); available at http://www.abcny.org/PressRoom/

PressRelease/2004—10—20.htm. 44See, e.g., Phoenix Processor, 348 NLRB No. 4 (2006) (unrepresented workers on fish-processing ship engaged in walk-out to protest 16 1/2- hour day; discharge upheld relying on antimutiny statute); Quietflex Mfg. Co., 344 NLRB No. 130 (2005) (unrepresented workers engaged 

in 12-hour protest in employer’s parking lot, but did not interfere with access or operations; discharge upheld). 45 Johnson Tech., Inc., 345 NLRB No. 47 (2005) (finding lawful employer’s warning to employee who used scrap paper to replace union-meeting notice that probably had been removed 

by management official). 46Deference to such prerogatives is illustrated by a series of decisions upholding the refusal 

of employers to provide unions with requested information. See, e.g., Raley’s Supermarkets, 349 

NLRB No. 7 (2007) (dismissing allegation that employer unlawfully refused to provide union 

with requested information related to grievance involving employer investigation of alleged supervisory harassment); Northern Indiana Public Serv. Co., 347 NLRB No. 17 (dismissing allegation that employer unlawfully refused to provide union with investigatory interview notes involving alleged threat of violence by supervisor); Borgess Med. Ctr, 342 NLRB 1105 (2004) (refusing to order employer’s disclosure of hospital incident reports, despite finding that refusal to 

provide reports to union was unlawful). 47See, e.g., Bunting Bearings Corp., 343 NLRB 479 (2004) (finding business justification for 

partial lockout limited to union members in bargaining unit), petition for review granted, 179 

Fed. App’x. 61 (D.C. Cir. 2006); Midwest Generation, EME, LLC, 343 NLRB 12 (2004) (finding 

business justification for partial lockout based on extent of employees’ participation in strike), 

petition for review granted, 429 F.3d 651 (7th Cir. 2005). 48See, e.g., American Steel Erectors, Inc., 339 NLRB 1315 (2003) (finding that employer lawfully refused to hire former union employee who had criticized employer’s job-safety record before state agency); PPG Industries, Inc., 337 NLRB 1247 (2002) (finding that employer lawfully 

disciplined employee who used vulgarity in characterizing employer’s conduct toward co-worker 

37

being solicited to sign union card). See also Fineberg Packing Co., 349 NLRB No. 29 (2007) 

(finding that employer did not condone unlawful walkout by employees, despite manager’s statement to employees that he was not firing anyone and that employees should ‘‘come back tomorrow’’). 49See, e.g., Aladdin Gaming, LLC, 345 NLRB No. 41 (2005) (finding lawful a management 

official’s interruption of off-duty employees’ conversation about signing union authorization 

cards); Werthan Packaging, Inc., 345 NLRB No. 30 (2005) (finding no objectionable election conduct where manager interrogated employee and stated that voting for union was not in best interests of employee and her family). 50See, e.g., Garden Ridge Mgmt., Inc., 347 NLRB No. 13 (2006) (dismissing allegation of surface-bargaining by employer and permitting withdrawal of union recognition), on motion for reconsideration, 349 NLRB No. 103 (2007) (denying General Counsel’s motion for reconsideration); 

Richmond Times-Dispatch, 345 NLRB No. 11 (2005) (finding that employer did not claim inability to pay bonus and so lawfully refused to provide financial information to union, following employer’s claim that it was ‘‘unable to pay’’ annual bonus and had ‘‘no choice’’ but to cancel 

bonus); Sea Mar Cmty. Health Ctrs., 345 NLRB No. 69 (2005) (finding no violation in employer’s 

refusal to bargain over closure of operation that was established by official without approval by 

upper management). 51See, e.g., Medieval Knights, LLC, 350 NLRB No. 17 (2007) (finding that consultant’s statement that hypothetical employer could lawfully ‘‘stall out’’ contract negotiations was not threat 

that electing union would be futile); TNT Logistics No. Am., Inc., 345 NLRB No. 21 (2005) (finding that supervisor’s unsupported statement that employer would lose only customer if employees unionized was lawful expression of personal opinion); Manhattan Crowne Plaza Town Park 

Hotel Corp., 341 NLRB 619 (2004) (finding that employer’s statement recounting mass discharge 

of recently-unionized employees at another employer’s hotels was not threat of reprisal); 

Curwood, Inc., 339 NLRB 1137 (2003) (finding that employer’s letter stating that customers 

viewed unionization negatively was lawful). 52See, e.g., Five Star Transportation, Inc., 349 NLRB No. 8 (2007) (upholding employer’s refusal to hire school bus drivers, employed by prior contractor, who had criticized employer in 

letters to school board). 53See, e.g., Flat Dog Productions, Inc., 347 NLRB No. 104 (2006). In one recent glaring example, the Board majority refused to pierce the corporate veil to hold corporate co-owners personally liable for backpay obligations to employees who suffered financial consequences of flagrant 

unfair labor practices. By the time of the backpay proceedings, the co-owners had distributed 

all of the company’s funds to themselves. The Board majority held, however, that because the 

distributions occurred before the unfair labor practice charges were filed, the distributions did 

not constitute an evasion of the company’s legal obligations. A.J. Mechanical, Inc., 345 NLRB 

No. 22 (2005). The United States Court of Appeals for the District of Columbia Circuit disagreed, stating bluntly: 

Surely, it is reasonable to infer that a thief who robs a bank in broad daylight knows well 

before the date of his indictment that he may one day face criminal liability. The corporate conduct at issue here is the labor-law equivalent of a daylight robbery. It was neither subtle nor 

close to the line of legality. 

Carpenters and Millwrights, Local Union 2471 v. NLRB, 481 F.3d 804 (D.C. Cir. 2007). See 

also US Reinforcing, Inc., 350 N.L.R.B. No. 41 (2007) (refusing to find that two companies were 

alter egos, where principals co-habited but were not married). 54See, e.g., Hialeah Hospital, 343 NLRB 391 (2004). 55First Legal Support Services, 342 NLRB 350 (2004). 56 Hotel Employees, Local 26, 344 NLRB No. 70 (2005) (declining to order ‘‘tax compensation’’ 

remedy for victim of discrimination who incurs heightened tax burden as result of receiving 

lump sum backpay award). 57St. George Warehouse, 351 NLRB No. 42 (2007) (reversing precedent and placing burden 

on General Counsel to produce evidence concerning discriminatee’s job search, when employer 

demonstrates availability of jobs), and Grosvenor Resort, 350 NLRB No. 86 (2007) (denying 

backpay to discriminatees for not seeking work quickly enough and for not seeking interim employment while waiting for previously secured interim employment to commence), discussed 

more fully above. See also Anheuser-Busch, Inc., 351 NLRB No. 40 (2007) (reversing precedent 

and holding that employees discharged based on information from unlawfully-installed security 

cameras are not entitled to remedy); Aluminum Casting & Engineering Co., 349 NLRB No. 18 

(2007) (denying employees full backpay for unlawfully withheld wage increase); Georgia Power 

Co., 341 NLRB 576 (2004) (denying employee unlawfully withheld promotion because General 

Counsel failed to prove that employee ‘‘certainly’’ would have been promoted). 58 Nordstrom, Inc., 347 NLRB No. 28 (2006). 59See Jochims v. NLRB, 480 F.3d 1161, 1164 (D.C. Cir. 2007) (reversing Board’s finding of 

supervisory status, observing that ‘‘the Board completely deviated from its own precedent and 

issued a judgment that is devoid of substantial evidence’’); Guardsmark, LLC v. NLRB, 475 F.3d 

369 (D.C. Cir. 2007) (reversing Board’s finding that employer’s anti-fraternization rule was lawful); United Steel Workers v. NLRB, 179 Fed. Appx. 61 (D.C. Cir. 2006) (remanding, as inconsistent with precedent, Board’s finding that partial lockout was non-discriminatory, and observing that it was ‘‘not appropriate’’ for Board to ‘‘speculate’’ as to employer’s motive for lockout, 

given employer’s burden of proof); New England Health Care Employees Union v. NLRB, 448 

F.3d 189, 193 (1st Cir. 2006) (reversing Board’s ‘‘arbitrary and capricious’’ determination that 

employer lawfully refused to reinstate economic strikers, based on secret hiring of permanent 

replacements); International Chemical Workers Union Council v. NLRB, 447 F.3d 1153 (9th Cir. 

2006) (reversing, based on lack of substantial evidence, Board’s determination that employer did 

not plead inability to pay and thus lawfully refused to provide financial information to union 

during bargaining); Slusher v. NLRB, 432 F.3d 715 (7th Cir. 2005) (reversing Board’s determination that employer lawfully discharged union steward for purportedly harassing anti-union 

38

employee); Local 15, Int’l Bhd. of Electrical Workers v. NLRB, 429 F.3d 651 (7th Cir. 2005) (reversing Board’s determination that partial lockout was non-discriminatory and remanding with 

instructions to find lockout unlawful); Brewers & Maltsters, Local Union No. 6 v. NLRB, 414 

F.3d 36 (D.C. Cir. 2005) (reversing, based on conflict with precedent, Board’s refusal to grant 

make-whole remedy to employees disciplined as result of employer’s unlawful installation of surveillance cameras). 60See, e.g., Bath Iron Works, 345 NLRB No. 33 (2005), enf’d., 475 F.3d 14 (1st Cir. 2006) (dissenting opinion) (implicating ‘‘competing analytical approaches where an employer claims the 

right to act unilaterally with respect to a mandatory subject of bargaining, based on language 

in a collective-bargaining agreement’’). 61See, e.g., American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB No. 33 

n. 21 (2006); Construction Products, Inc., 346 NLRB No. 60 n. 1 (2006); Siemens Building Tech., 

345 NLRB No. 91 n. 5 (2005); Vanguard Fire & Supply Co., Inc., 345 NLRB No. 77 n. 9 (2005); 

Daimler-Chrysler Corp., 344 NLRB No. 154 fn. 1 (2005); Contract Flooring Systems, Inc., 344 

NLRB No. 117 at 1 (2005); Meijer, Inc., 344 NLRB No. 115 n. 7 (2005). 62See, e.g., Boeing Co., 349 NLRB No. 91 (2007); Advanced Architectural Metals, Inc., 347 

NLRB No. 111 (2006); United States Postal Serv., 383 NLRB. No. 3 (2006). 63See, e.g., Kvaerner Phila. Shipyard, Inc., 347 NLRB No. 36 (2006); Smurfit-Stone Container 

Corp., 344 NLRB No. 82 (2005); Aramark Services, Inc., 344 NLRB No. 68 (2005). 64Teamsters Local 75 (Schreiber Foods), 349 NLRB No. 14 (2007) (finding that union unlawfully charged objecting non-members for organizing expenses, where union failed to prove that 

organizing within same industry leads to increased union wage rates); Randell Warehouse, Inc., 

347 NLRB No. 56 (2006) (reversing Clinton Board precedent and finding that union’s 

videotaping of campaign-literature distribution was objectionable); Harborside Healthcare, Inc., 

343 NLRB 906 (2004) (reversing precedent and liberalizing standard for finding pro-union supervisory conduct objectionable in context of representation elections). See also Correctional 

Medical Services, Inc., 349 NLRB No. 111 (2007) (upholding discharge of unrepresented employees who picketed health-care employer, based on union’s failure to provide statutorily-required 

advance notice). 65See Toering Electric Co., 351 NLRB No. 18 (2007) (requiring General Counsel to prove that 

salt is genuinely interested in employment with employer, to establish violation in hiring-discrimination case); Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007) (reversing judiciallyapproved precedent and requiring General Counsel to establish duration of remedial period for 

salts). 66Zurn/N.E.P.C.O., 345 NLRB No. 1 (2005), petition for rev. denied, Northern Michigan Bldg. 

& Const. Trades Council v. NLRB, 2007 WL 1805667 (6th Cir. June 20, 2007). 67 Nott Co., 345 NLRB No. 23 (2005) (‘‘[A]lthough industrial stability is an important policy 

goal, it can be trumped by the statutory policy of employee free choice. That policy is expressly 

in the Act, and indeed lies at the heart of the Act.’’). For illustration of the consequences of this 

orientation, see Dana Corp, supra; Shaw’s Supermarkets, Inc., 350 NLRB No. 55 

(2007)(permitting employer to withdraw recognition from union after third year of five-year 

agreement, even though petition for election could not be filed); Badlands Golf Course, 350 

NLRB No. 28 (2007) (permitting employer to withdraw recognition from union less than three 

weeks after minimum six-month period of insulated bargaining, following earlier unlawful withdrawal of recognition). 

[Additional submission of Member Liebman follows:]

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Chairman ANDREWS. Thank you, Member Liebman, very much. 

I will yield for questions to the chairman of the Education and 

Labor Committee, Mr. Miller. 

Mr. MILLER. Thank you very much. 

And thank you both, Chairman Battista, for your testimony and 

Ms. Liebman, for your testimony. 

Ms. Liebman, I would like to go—in your formal presentation—

excuse me, your written presentation to the committee on page 10, 

you sort of compare and contrast the Dana decision and the 

Wurtland decision. And I wondered if you might elaborate on that 

because I think it is—our deliberations in the Congress with respect to the Employee Free Choice Act where it was suggested by 

the opponents of the act throughout much of the debate that the 

signatures of workers were worth nothing, that they just weren’t 

valid, they weren’t worth it, that this was not a legitimate process, 

as you point out. 

At least as I read your testimony, you suggest that the board has 

suggested, at least, contradictory positions in those two cases or, in 

fact, even maybe a double standard. And I just wonder if I am—

I don’t want to put words in your mouth, but if you would elaborate 

on that. 

Ms. LIEBMAN. Yes, I would be happy to. Thank you. These two 

decisions, as you have mentioned, issued the same day. And they 

are somewhat surprising when you read them back to back because 

the Dana case, of course, involves the right of employers and 

unions to enter into voluntary recognition agreements providing for 

recognition of the union upon a showing of majority supporting, 

usually signatures on authorization cards without the necessity to 

hold a board election. 

These are popular because unions have become disenchanted 

with the election machinery because of the delays in the process 

which allows virulent anti-union campaigns, in some cases, allows 

employer coercion. And if the union ultimately would win the election, it starts off the relationship in an adversarial or antagonistic 

way. So these arrangements have become very popular. 

The Wurtland decision was in some ways the flip-side case. It 

was an employer who withdrew recognition from a union. Its employees had signed a petition saying that they wanted a vote to—

I think the words were—get rid of the—we, the employees, wish for 

a vote to remove the union. 

And the board majority said that that language was unambiguous because, well, because they said it was unambiguous, even 

though the language clearly is we wish for a vote. I think there are 

board cases which would say that if employees signed cards that 

said we want a vote to select union representation, that the board 

would not issue what is called a Gissel bargaining order based on 

language of that sort because the language clearly indicates that 

the employees would like a vote. 

Another apparent inconsistency between these is that in the 

Dana case, the board minimized the delays inherent in the election 

process. Whereas in the Wurtland case, part of the explanation for 

allowing the employer to do this unilaterally was because of the 

delays in the election process. 

61

This is compounded by a decision issued in August, the Shaw’s 

case, in which similarly the board allowed an employer to withdraw 

recognition, even though there was a decertification petition pending with the board and even though the employer itself was not entitled to file a petition at that time because it had signed onto a 

5-year agreement. But the explanation was we are going to allow 

this withdrawal of recognition so that employees do not have to endure union representation if they don’t want it. 

And again, another double standard is that no similar concern 

has been shown for employees who have to wait perhaps years to 

enjoy union representation when they voted for it, no similar concern that they have to endure non-representation. So I would say 

that there certainly appears to be a double standard. 

The other possible explanation is that the board has pretty expressly stated for the first time in the board’s history that the freedom of choice—and in this case, that would be the freedom to reject 

union representation—has paramount value in this statute over 

the goal of promoting collective bargaining. That is the first time 

that the NLRB has ever stated that ranking of statutory policies 

in that way. 

Mr. MILLER. Chairman Battista, do you want to make a quick 

comment? I don’t have much time left. 

Mr. BATTISTA. Yes, I would, as a matter of fact. I don’t see the 

Wurtland case and the Dana case as being opposites. In the 

Wurtland case, it was cards or a petition that triggered the employer’s action to withdraw recognition from the union. 

In the Dana case, it was the cards that the union presented to 

the employer that triggered the recognition initially. So cards 

played a role in both cases. 

In the Dana case, the employer said—or the board said to the 

employer and to the union we are going to have a notice posted so 

employees know they have a right to a secret ballot election if they 

wish it. And it is only for 45 days. So there is a possibility of a secret ballot election changing that result or confirming it. 

In the Wurtland case, if the union after the employer withdrew 

recognition wished to file a petition for certification and it was supported by the appropriate number of cards, we would conduct an 

election. And that election would determine whether the union is 

certified, recertified or not. So in both cases, there is a role for 

cards and for card check. And in both cases, there is a role that 

is played by secret ballot elections. 

Mr. MILLER. I think Ms. Liebman took the question with what 

the employees were, in fact, asking for in the Wurtland case and 

also, I think, the question of whether there is any legal requirement for that posting at all. 

Mr. BATTISTA. In the Wurtland case, the employees came to the 

employer and presented them with a petition saying that we want 

to remove local 1192, I think it is, as our collective bargaining representative. 

Mr. MILLER. We want to vote to remove it. 

Mr. BATTISTA. Now, if the employer is faced with evidence that 

a majority of the employees do not wish to be represented by the 

union, the employer has an obligation, I think, to act. He can act 

62

in one of two ways under Levitts. He can file for an R.M. petition 

for an election. Or he can withdraw recognition. 

It wasn’t that the language was unambiguous. I don’t believe we 

said the language was unambiguous. But we had to make a decision what the better interpretation of the language of the petition 

was. And we found the better interpretation of the language was 

that it didn’t want a vote, but they wanted to remove the union. 

Mr. MILLER. We will come back to this. I don’t want to—we have 

got a lot of members here. 

Chairman ANDREWS. Thank you, Mr. Chairman. 

The chair recognizes the ranking member of the subcommittee, 

Mr. Kline, for questions. 

Mr. KLINE. Thank you, Mr. Chairman. 

I thank the witnesses for being with us today. 

Chairman Battista, I have several questions and not enough 

time, so I am going to move fairly quickly. We know that polling 

shows that the vast majority of Americans want to protect the secret ballot. 

In the landmark case of Gissel Packing, the Supreme Court 

noted that a secret ballot election is the ‘‘most satisfactory, indeed, 

the preferred method of ascertaining whether a union has majority 

support,’’ and that card checks are ‘‘admittedly inferior to the election process.’’ Let us just get on the record. Do you share that view, 

and why? 

Mr. BATTISTA. Congressman, I would like to stay away from a 

question that deals with whether or not the act should be amended. 

But I would say to you I don’t disagree with our Supreme Court. 

And I am a firm believer that the secret ballot election works well 

at the board. 

Mr. KLINE. Okay. Thank you. 

Member Liebman talked about delays in elections through the 

process. I wondered if you would like to address that and tell us 

how the performance of the board has been under your chairmanship, what kind of delays were experienced and put it in an historical context. 

Mr. BATTISTA. I think we have done well in the past 5 years. As 

I said in my opening statement, we have reduced the backlog from 

621 cases to 207 cases. We have taken the amount of time to see 

cases at the board and reduced it from 809 median days to 181 median days. We have reduced the amount of time that——

Mr. KLINE. Excuse me, that was 809 to 101? 

Mr. BATTISTA. One hundred and eighty-one. 

Mr. KLINE. One hundred and eighty-one. Thank you. 

Mr. BATTISTA. One hundred and eighty-one median days. And we 

have taken the median days of representation cases at the board 

and reduced it from 409 days to 88 days. And so, I think we have 

done a good job in making the agency more productive and more 

efficient. 

Mr. KLINE. Thank you. We have had some discussion already 

about the board under your chairmanship reversing precedent. And 

I would like to get into that for just a minute. 

It is my understanding that in a number of cases, the board 

under your chairmanship overturned precedent, but it did so only 

to return to long-established board law. In other words, to restore 

63

longstanding precedent that the Clinton era board had abandoned. 

Do you view that as the case? Could you comment on that? 

Mr. BATTISTA. I think that is a fairly accurate reflection of what 

we have done. We have overturned precedent on 21 occasions. The 

Clinton board had between 1994 and 2002—I believe it was Roger 

King had the statistics that they overturned precedent on 61 occasions, and it was 1,100 years of precedent that they overturned. I 

think on our 21 occasions it is about 348 years. 

And the main one precedent we overturned was a precedent that 

was established by the Clinton board. It was precedent that we felt 

was not appropriately overturned in the first place, and we returned to what was well-recognized precedent. 

Mr. KLINE. Okay. And then finally, there is a lot of discussion 

about the act itself. And clearly, you have been accused, even here 

this morning, in saying that the National Labor Relations Board is 

broken and the board is not effectively doing its job and its role 

with the National Labor Relations Act. 

Do you agree with that? I mean, clearly, you don’t. I would like 

to give you the opportunity to say something about that. 

Mr. BATTISTA. I mean, I disagree with that. I think the agency 

is really an example for most federal agencies. You look at what 

we do. We get 22,000, 23,000 unfair labor practices a year. And 

two-thirds of them are disposed of within 2 months. The remaining 

third, 90 percent of those are resolved, settled before 98 days, 98 

median days, I believe it is. 

And so, the vast bulk of our unfair labor practice cases are handled, either dismissed or settled, very early on in the game. The 

same is true for representation elections. Our elections are conducted in a median time of 39 days. 

I think it is 90 percent of our elections are held in an actual time 

of 59 days from the filing of the petition. And the majority—I think 

it is 70 or 80 percent—of our representation cases are closed within 

a year. So I think we are doing a good job. 

Mr. KLINE. Thank you, Mr. Chairman. I yield back. 

Chairman ANDREWS. I thank my friend. 

The chair yields for questioning to Senator Kennedy, Chairman 

Kennedy. Excuse me. 

Senator KENNEDY. Thank you, Mr. Chairman. 

I would like to ask Ms. Liebman. I think most of us understand 

that the National Labor Relations Board was set up to further collective bargaining. We have heard that the statute actually provides ‘‘to encourage the practice and procedure of collective bargaining by protecting the exercise by workers of full freedom of association, self-organization, designation.’’

And then there have been comments here this morning, well, it 

has been modified by other actions, Taft-Hartley, other actions by 

the Congress. I don’t know in those actions by the Congress where 

that concept has been repealed. It still stands, as far as I understand the nature of the law. 

And I am interested in your view about this balance. That is 

really the heart of this issue in question. What is the balance? 

I think you referred earlier to your own view that workers doubt 

whether that balance is real today. And therefore, people have been 

discouraged from using what was established to be used to be effecVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
64

tive to strengthen our economy, to be fair to workers in this country. And I want to give you an opportunity just to comment about 

the imbalance or the balance between employer and workers’ 

rights. 

Well, before talking about their rights, if you would talk about 

the balance to engage in union activity, the right to refrain from 

union activity subject to the majority will. What could you tell us 

from your own experience on the board and your background and 

obviously as someone who is not only a participant in this, but also 

someone who brings a great wealth of knowledge and experience 

and understanding the role of the NLRB? 

Ms. LIEBMAN. Thank you, Senator Kennedy. I guess you could 

call me a strict constructionist or maybe even an originalist about 

this law. I believe that the majority’s apparent conviction that TaftHartley somehow diminished the primacy of collective bargaining 

as a national policy goal is just wrong. I would call it revisionist 

history. 

The Taft-Hartley amendment did not change the basic purpose 

of the law. The law’s overriding aim was and still is to make it possible for workers to freely choose collective representation and to 

promote collective bargaining. 

We have a federal labor law in the first place because Congress 

saw the need to help employees win union representation over the 

opposition of employers and thereby, to equalize bargaining power 

between labor and capitol. Taft-Hartley did add provisions to protect employees from union coercion as well. And, of course, it added 

the language to Section 7 of the act giving employees the right to 

refrain from union and other concerted activity. 

So employees are free under this statute to choose freely to decline unionization, to reject the union that has represented them, 

to deal with their employers individually and to cede to their employers all effective control over the workplace. They have that 

right. 

But the fact remains that the primary goal of this statute is to 

promote collective bargaining. Free choice exists, which means employee free choice and not the right of employers to choose for 

them, a case that Wurtland sort of highlights. 

So as you say, Section 1 of the Wagner Act still remains in place 

making it the policy of this nation to promote collective bargaining. 

And Taft-Hartley itself in Section 201 stated, and I am going to 

read this, ‘‘It is the policy of the United States that the advancement of the general welfare, health, and safety of the nation can 

most satisfactorily be secured by the settlement of issues between 

employers and employees through the processes of conference and 

collective bargaining.’’ That is in Taft-Hartley itself. 

And finally, the Supreme Court in 1966 put it this way. ‘‘The object of the National Labor Relations Act is industrial peace and stability fostered by collective bargaining agreements providing for the 

orderly resolution of labor disputes between workers and employees.’’ The board has consistently held up until this one that the primary purpose of this act is to promote collective bargaining freely 

chosen. 

There are some cases where there is tension between these goals, 

and the board has always sought to maintain an equal balance. 

65

But now it seems that the importance of collective bargaining has 

receded as a national policy goal. In some ways, it seems that labor 

law has been turned inside out. 

Senator KENNEDY. Yes. I think I see the red light has gone on. 

Senator Murray planned to represent our committee. She has 

been detained. She has asked me to put her statement and also an 

excellent letter signed by 57 law professors in the record. 

Chairman ANDREWS. Without objection. 

[The information follows:]

Prepared Statement of Senator Patty Murray, Chairman, Subcommittee on 

Employment and Workplace Safety 

Good morning. I’m pleased to join Chairman Andrews and my colleagues from the 

Senate and House Labor Subcommittees today. 

We’re here to talk about an issue that is critical to our families—protecting a 

worker’s right to organize. 

I know personally what a union job means. My brother is a firefighter, and it has 

meant a middle class life for him and his family. 

When Congress passed the National Labor Relations Act more than 70 years ago, 

it recognized that a fair labor market can exist only if employers and employees 

both have a respected voice in the system. 

The purpose of the law was to ensure a balanced approach to labor-management 

relations that hadn’t existed up to that point. 

But this President has stacked the deck against workers on the National Labor 

Relations Board. 

And now we’ve seen that balance tipped so far in favor of employers that the 

Board has lost its credibility with workers and with many Members of Congress. 

The Administration has Failed to Protect Workers’ Rights 

At a time when corporate executives enjoy: 

• Multi-million-dollar salaries, 

• Golden parachutes * * *

• And so many other excesses, 

It doesn’t seem too much to ask to require fair wages, and safe working conditions 

for their employees. 

Yet the Administration and its political appointees have repeatedly failed to protect workers on the job, while also restricting their ability to collect overtime. 

This Administration has worked: 

• To undermine the 40-hour work-week, 

• Reduced funding for job training, 

• And vigorously opposed an increase in the minimum wage for years. 

I’m especially concerned that the NLRB now has a pattern of issuing decisions 

that undermine the ability of workers to collectively bargain—blatantly ignoring 

Congress’ intent under the law. 

We’re here today because in September, that Board issued a large number of decisions that have received loud criticism. 

Our witnesses will discuss these and other questionable Board actions in more 

depth this morning. 

The NLRB Decisions are More of the Same 

Combined, the Board’s decisions attempt to dismantle policies the Administration 

and its supporters don’t like by: 

• Allowing a minority of employees to undo the will of the majority; 

• Sending mixed messages about the value of Board elections; 

• Weakening already inadequate remedies for bad faith employers; 

• And changing the rules of the game for workers who try to exercise their right 

to organize in good faith. 

I find these decisions troubling because they simply don’t make sense. 

They seem to be designed more to carry out the Administration’s agenda rather 

than to follow the intent of the law. 

Of course, Chairman Battista thinks otherwise. But his approach flies in the face 

of what scholars from around the country have said. 

In response to the Board’s decisions, more than 50 distinguished labor law professors wrote a letter to Congress, criticizing its reasoning under the National Labor 

Relations Act. 

66

I ask unanimous consent that this letter be included in the hearing record. In 

their letter, these professors state that: ‘‘the board has regularly denied or impaired 

the very statutory rights it is charged with protecting—the rights of employees to 

join and from unions and to engage in collective bargaining.’’

Protecting Workers’ Rights Should be a Priority for the NLRB 

As Chair of the Senate Employment and Workplace Safety Subcommittee, protecting workers’ rights is a critical priority for me. 

And it should be a priority for those government agencies charged with promoting 

the well-being of workers and their families. 

Unfortunately, it seems that many Administration appointees have decided that 

following the intent of the law isn’t important. 

I can’t tell you how many times I’ve had to remind the political appointees at the 

Labor Department that their mission is to stand up for workers—not tip the scale 

even further toward the interests of powerful employers. 

Maybe the NLRB needs a reminder, too. 

I understand that the Board has a tough job. Finding the right balance between 

employers and workers can be challenging. 

But that just doesn’t seem to be the issue here. 

Voters Called for Change 

In last year’s election, America’s voters called for change. And the Democratic-controlled Congress has responded by sending the Administration a clear message: 

• That the working families of our country are priority number one. 

Still, this Administration has continued down the same old path. 

I hope we will soon have a new Administration and a new Board that are genuinely committed to protecting workers’ rights and putting working families first. 

But today, I look forward to hearing from our witnesses about the impact the 

Board’s decisions are having on workers’ rights 

And I look forward to hearing how they think this Board is measuring up to the 

mission stated in its charter—which is: 

• To encourage collective bargaining by protecting workers’ rights to negotiate the 

terms and conditions of their employment. 

Thank you. 

December 12, 2007. 

DEAR MEMBERS OF CONGRESS: Recent decisions by the National Labor Relations 

Board reflect an ominous new direction for American labor law. By overturning 

precedent and establishing new rules, often going beyond what the parties have 

briefed or requested, the Board has regularly denied or impaired the very statutory 

rights it is charged with protecting—the rights of employees to join and form unions 

and to engage in collective bargaining. The Board’s persistent efforts to undermine 

NLRA protections also have dramatized the need for Congress to enact serious labor 

law reform after nearly half a century with no substantial legislative change. 

Since it was constituted in late 2002, the current Labor Board has mounted an 

aggressive campaign to curtail worker rights under the statute. In periodic waves 

of closely divided, highly partisan decisions, the current Board majority has effectively removed whole categories of workers from the Act’s coverage;1 stripped away 

protections promised by the Act;2 and further diluted the strength of already inadequate remedies.3 The Board’s decisions are remarkable for their anti-union bias, 

and in that regard remarkably out of touch with the desires of American workers. 

A recent Hart Research poll shows that as many as 60 million workers want a union 

but do not have one.4

A key reason why employees are thwarted in their desire for a union is the 

Board’s inability or unwillingness to protect genuine employee free choice. The 

NLRB-supervised elections process too often invites employer coercion or interference, and encourages employers to create delays that frustrate and discourage 

workers. The current Board has given employers even greater leeway during organizing campaigns—to threaten and intimidate workers for union activities,5 and to 

impose onerous and ambiguous workplace rules that deter union support and chill 

workers’ exercise of their rights.6

As a result of the failure of the NLRA’s representation process to guarantee free 

and fair elections, workers and unions have turned to other organizing strategies. 

One important approach involves securing voluntary recognition through majority 

sign-up, when a majority of workers sign cards indicating their preference for a particular union and the employer decides not to contest the card majority. This form 

67

of organizing was recognized by Congress in the Act itself and has been endorsed 

by the Board for decades, as well as by the Supreme Court.7

In response to the increasing reliance on majority signup by workers who want 

a union, the current Board majority has erected substantial new hurdles to voluntary recognition. More than 70 years ago, section 9 of the Act established that 

a union will be recognized as exclusive representative if ‘‘designated or selected’’ by 

a majority of employees. But the Board has now made clear that it will not protect 

new bargaining relationships created through majority signup and voluntary recognition until a minority of workers who oppose the union have a second chance to 

defeat the majority’s choice of union representation.8 Indeed, the Board now insists 

that employers who voluntarily recognize their workers’ free and uncoerced majority 

choice for a union must post an NLRB notice telling workers how 30% of them may 

force the union to demonstrate majority support a second time.9 In stark contrast, 

the Board does not require any employer-posted notice that explains to workers how 

to exercise their rights to form, join, or organize a union for the purpose of engaging 

in collective bargaining. 

In addition to its decisions restricting workers’ rights during an organizing campaign and burdening union efforts to achieve voluntary recognition, this Board has 

repeatedly undermined remedies for employer misconduct. Although the NLRA’s remedial scheme has long been criticized as inadequate, the current Board majority 

has rebuffed various initiatives from past Boards aimed at enhancing compensation 

for victimized employees and overcoming the effects of unlawful employer activity. 

This Board has rejected remedial bargaining orders, broad cease-and-desist orders, 

and so-called ‘‘special’’ organizing remedies;10 absent such relief, the penalty for serious employer wrongdoing is too often simply to post a notice and promise not to 

do it again. These notices do far too little to dispel the intimidation and fear created 

by an aggressive, illegal anti-union campaign, and far too little to discourage employer illegality in the first place. 

Finally, the current Board has made it more difficult for workers to recover even 

the modest backpay remedy to which the law entitles them when they are fired, laid 

off or denied employment because of their union support. Once such a violation is 

found, the burden has always fallen on the adjudicated lawbreaker to present information that would constitute grounds to reduce the backpay owed an illegally fired 

worker. This Board, however, has turned the remedial process on its head. Recent 

decisions have required employee victims to produce evidence that they searched for 

particular new jobs11 even while engaged in picketing to get their old jobs back,12

or that they would have worked for the employer for the entire backpay period following their having been illegally denied a job.13 Board resources must now be directed away from investigating and prosecuting labor law violations and devoted instead to reducing the backpay liability of the lawbreaker. The Board’s new direction 

further weakens remedies and makes it less expensive to violate workers’ rights. 

The Congresses that enacted and amended the NLRA from 1935 to 1959 viewed 

collective bargaining as an essential way to maintain and expand America’s middle 

class. This Board’s decisions, significantly eroding workers’ ability to gain the right 

to bargain with their employer for a better future, highlight the need for legislative 

reform and for a return by the current Board to its statutory mandate. We call upon 

Congress to address both of these urgent needs. 

Sincerely,

JAMES J. BRUDNEY, The Ohio State University Moritz College of Law.

CYNTHIA ESTLUND, New York University School of Law.

JAMES ATLESON, University at Buffalo Law School, the State University of New York.

DIANNE AVERY, University at Buffalo Law School, the State University of New York.

MARK BARENBERG, Columbia University School of Law.

CARRIE GRIFFIN BASAS, Penn State-Dickinson School of Law.

ROBERT M. BASTRESS, JR., West Virginia University College of Law.

SUSAN BISOM-RAPP, Thomas Jefferson School of Law.

CHRISTOPHER DAVID RUIZ CAMERON, Southwestern Law School.

SUSAN CARLE, Washington College of Law.

KENNETH M. CASEBEER, University of Miami Law School.

CARIN ANN CLAUSS, University of Wisconsin Law School.

STEPHEN CLARK, Albany Law School.

LANCE COMPA, Cornell ILR School.

LAURA J. COOPER, University of Minnesota Law School.

MARION CRAIN, University of North Carolina at Chapel Hill.

68

CHARLES B. CRAVER, George Washington University Law School.

ELLEN DANNIN, Pennsylvania State University, Dickinson School of Law.

HENRY H. DRUMMONDS, Lewis and Clark/Northwestern School of Law.

BARBARA J. FICK, University of Notre Dame Law School.

RICHARD MICHAEL FISCHL, University of Connecticut School of Law.

CATHERINE FISK, Duke University.

WILLIAM E. FORBATH, University of Texas at Austin.

RUBEN J. GARCIA, California Western School of Law.

JULIUS GETMAN, University of Texas School of Law.

PROFESSOR MICHAEL J. GOLDBERG, Widener University School of Law.

JENNIFER GORDON, Fordham University School of Law.

ROBERT A. GORMAN, University of Pennsylvania Law School.

MICHAEL GOTTESMAN, Georgetown University Law Center.

JOSEPH R. GRODIN, U.C. Hastings College of the Law.

SETH HARRIS, New York Law School.

MICHAEL HAYES, University of Baltimore School of Law.

DOROTHY HILL, Albany Law School.

ANN C. HODGES, University of Richmond School of Law.

KARL KLARE, Northeastern University School of Law.

THOMAS C. KOHLER, Boston College Law School.

HOWARD LESNICK, University of Pennsylvania Law School.

ARIANA LEVINSON, Louis D. Brandeis School of Law, University of Louisville.

ANNE MARIE LOFASO, West Virginia University College of Law.

DEBORAH MALAMUD, New York University School of Law.

CARLIN MEYER, New York Law School.

MARIA ONTIVEROS, University of San Francisco School of Law.

JAMES G. POPE, Rutgers University School of Law—Newark.

ROSEMARY QUEENAN, Albany Law School.

JOEL ROGERS, University of Wisconsin Law School.

MITCHELL H. RUBINSTEIN, St. John’s Law School and New York Law School.

GEORGE SCHATZKI, Sandra Day O’Connor College of Law at ASU.

JOSEPH E. SLATER, University of Toledo College of Law.

THEODORE J. ST. ANTOINE, University of Michigan Law School.

KATHERINE STONE, UCLA School of Law.

CLYDE SUMMERS, University of Pennsylvania Law School.

JOAN VOGEL, Vermont Law School.

PAUL WEILER, Harvard Law School.

MARLEY S. WEISS, University of Maryland School of Law.

MARTHA S. WEST, University of California Davis School of Law.

STEVEN L. WILLBORN, University of Nebraska College of Law.

DONNA YOUNG, Albany Law School. 

ENDNOTES

1See e.g. Oakwood Healthcare, Inc., 348 NLRB No.37 (2006); Brown University, 342 NLRB 

No.42 (2004); Oakwood Care Center, 343 NLRB No.76 (2004); Brevard Achievement Center, 342 

NLRB No.101 (2004). 2See e.g. Delta Brands, Inc., 344 NLRB No.10 (2005); Waters of Orchard Park, 341 NLRB 

No.93 (2004); Holling Press, Inc., 343 NLRB No.45 (2004); IBM Corp, 341 NLRB No.148 (2004). 3See e.g. Albertson’s, Inc., 351 NLRB No.21 (2007); Desert Toyota, 346 NLRB No.3 (2005); 

First Legal Support Services, 342 NLRB No.29 (2004). 4See Richard B. Freeman, Do Workers Still Want Unions? More Than Ever, Economic Policy 

Institute (Washington D.C. 2007). See also Upfront, Business Week, Sept. 16, 2002, at 6. 5See e.g. Airport 2000 Concessions, LLC, 346 NLRB No.86 (2006); Alladin Gaming, 345 NLRB 

No.41 (2005); Crown Bolt, 343 NLRB 776 (2004). 6See e.g. Guardsmark, LLC, 344 NLRB No.97 (2005), enf’t denied, 475 F.3d 369, 378-80 (DC 

Cir. 2007); Palms Hotel and Casino, 344 NLRB No.159 (2005); Lutheran Heritage VillageLivonia, 343 NLRB No.75 (2004) 7See e.g. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969); Franks Bros. v. NLRB, 321 U.S. 

702 (1944); NLRB v. Bradford Dyeing Ass’n, 310 U.S. 318 (1940). 

69

8Dana Corp, 351 NLRB No.28 (2007). 

9 Id. 

10See cases cited at note 3 above; see also Intermet Stevensville, 350 NLRB No.94 (2007); 

Abramson, LLC, 345 NLRB No.8 (2005); The Register Guard, 344 NLRB No.150 (2005). 11See St. George Warehouse, 351 NLRB No.42 (2007) 12See The Grosvenor Resort, 350 NLRB No.86 (2007) 13See Oil Capitol Sheet Metal, Inc., 349 NLRB No.118 (2007). See also Toering Electric Co., 

351 NLRB No.18 (2007). 

Senator KENNEDY. Mr. Chairman, I hope that—I guess our time 

will be up—we will have an opportunity to talk to this panel a little bit about the nature of the penalties. But we will come back to 

that. My time has run out on this now. But we will come back to 

that, I guess. 

Chairman ANDREWS. I am sure that we can. Let me make a suggestion. The House has three votes. The members of the House can 

leave. 

We are going to continue the hearing with Senator Isakson. And, 

frankly, during the absence of the House members, if Senator Kennedy or Isakson would like more questions, we will come back to 

you, just to be fair. 

So, Senator Isakson, you are recognized. 

Senator ISAKSON. Thank you, Mr. Chairman. 

I have two questions really. The questions apply to both of you. 

In the new rule with regard to the 45-day open period, it seems to 

me that if a card check system is an accurate reflection of the will 

to organize, then a timely election would verify that. And it seemed 

like the rule change allowed a timely verification of the card check. 

Am I correct in that? 

Mr. BATTISTA. I think you are, Senator. The thing that we were 

concerned about, the majority was concerned about in DanaMetaldyne was that where you have an agreement between the employer and the union initially on a neutrality card check arrangement, that there is the tendency to believe that this is what the 

employer and the union want. And what we have got to focus on 

is what the employees want. 

Do they want this union or not? We did not do away with the 

recognition bar. We just said that you have got a 45-day period to, 

if you don’t want the union, get 30 percent of your colleagues to 

sign a petition. We will conduct an election to determine whether 

the union stays in place or not. 

If you are happy with the union, do nothing. And after 45 days, 

that will be a factor of life. 

It is a little like what the priest did to me when I got married 

20 some years ago. The priest said is there anyone in this church 

that knows why this marriage shouldn’t go forward. If, now speak, 

or forever hold their peace. And maybe that is an analogy that can 

be used to discuss the way we handled this marriage the union and 

the employer in the Dana-Metaldyne case. 

Senator ISAKSON. Member Liebman? 

Ms. LIEBMAN. The difference is that after your wedding was concluded, you weren’t given a 45-day window period to get out. And 

I think that is a difference. It is conceivable certainly that after 45 

days if there is an election held that it will confirm the results. But 

there are several things going on here. 

70

First of all, let me point out that the Dana decision did overrule 

precedent that was not a decision of the Clinton board. It was a 

decision that went back until about 1960. 

Secondly, what the Dana decision does is quite unprecedented. It 

requires the posting of a notice in the workplace telling employees 

that they have a right to get rid of the union that a majority of 

them have just signed cards for. That is completely unprecedented. 

We don’t have similar kinds of notice postings under our current 

procedures. 

It is also quite unusual and quite contrary to the principle of majority—exclusive majority representation in the statute to allow a 

minority of employees—namely, 30 percent—to undo what the majority has just expressed a preference for. That just doesn’t happen 

under this statute. 

You can’t change your mind right after an election, even though 

some people might change their mind. You can’t get out of it as 

soon as the election has been conducted. 

And so, even though some cases have said that the election is the 

preferred means, that is not in the statute. There is no statutory 

requirement for an election. And I would add just as a final point 

that a case like Wurtland or Shaw’s reflects again the double 

standard about this reverence for elections. The same reverence for 

elections has not been shown in the situation where employers seek 

to come out of bargaining relationships, as the majority has indicated, for getting into a relationship. 

Senator ISAKSON. Thank you. I have one little question, if it is 

all right, Senator Kennedy. 

I am told in the MGM case that MGM voluntarily recognized a 

card system and then after the recognition, the 1-year ban period 

takes place, but 1,900 workers petitioned for an election. And 

NLRB denied those 1,900 workers the right to that election under 

the 1-year ban. Am I correct? 

Ms. LIEBMAN. We didn’t actually call it a 1-year ban. We called 

it a voluntary recognition ban. But it essentially came to about 1 

year. That is correct. And that is consistent with the regular recognition bars that have been in place for years and the assessment 

of all the circumstances, the progress of the negotiations. 

In MGM Grand, the parties were using a pretty sophisticated 

method of negotiating the contract, which the board majority at 

that time felt allowed for a little greater time to give the parties 

a chance to work out their differences. That is the concept really 

behind these bars, whether it is a contract bar or certification bar 

or voluntary recognition bar, to give the union a chance to negotiate an agreement with an employer, particularly a first contract, 

which is much more difficult to negotiate than successor agreements. Give them a chance. 

Employees may get frustrated during the bargaining process and 

may sort of become skeptical. And so, at any one point of time they 

might say this isn’t worth it. But that is not the concept of the law. 

And these principles have been endorsed by the Supreme Court. 

These rules are not based on any certainty that the union still retains the majority, but that the process should be given a chance 

to work for a reasonable period of time. 

71

Senator ISAKSON. Well, my only comment is it made sense to me 

that you would change a rule if you actually had a circumstance 

under the old rule where 60 percent of the employees wanted an 

election and couldn’t get one. 

But again, if I am correct in the information I have been given, 

if 60 percent want it, I am thinking the decision NLRB made under 

the old rule in the MGM case, this would have at least provided 

the majority with a timely election to see if it reflected the views. 

That would be my only point. 

Ms. LIEBMAN. Yes, could I just say in response to that that these 

rules do not exclude the right of employees to have an election to, 

in essence, decertify the union? It just postpones it for a reasonable 

period of time. 

There are reasonable intervals during which we will not conduct 

elections so the process can work. And I could point out also that 

if the majority had been unhappy with a case like MGM, it could 

have dealt with that situation under the existing rules by reaching 

a different conclusion as to whether a reasonable time for bargaining had elapsed. 

But instead it completely gutted the entire principles of law 

about this reasonable period for bargaining, an insulated period 

during which we will not allow challenges to the union’s majority 

status. What they did was a much more radical step. Whereas they 

could have dealt with it just within the existing case law. 

Senator ISAKSON. Thank you, Mr. Chairman. 

Senator KENNEDY [presiding]. Congressman Holt? 

Mr. HOLT. Thank you, Mr. Chairman. I must hurry to the floor, 

so let me be very brief. 

I am not a lawyer, not a labor lawyer, but I frequently use the 

phrase that workers have the right to organize. 

Chairman Battista, you said the board is not tilted toward labor 

unions and not toward companies, but rather toward the worker. 

But as I look at the recent decisions about inside organizing or 

salting or the Dana decision or the St. George Warehouse where an 

employee has to prove that he is seeking another job or the BE&K 

Construction that allows employers to punish employees for exercising their rights, it really sounds to me like this is all for antiunion corporations. 

And so, my quick question is should I strike the phrase right to 

organize from my talks, from my vocabulary? 

Mr. BATTISTA. I certainly don’t think so, Mr. Holt. And I certainly protect and encourage employees to organize if that is what 

they wish to do. 

Mr. HOLT. Well——

Mr. BATTISTA. And our decisions are the same. I would be more 

than happy to discuss each one of those cases with you. But——

Mr. HOLT. I would like to pursue that. I must go vote now, but 

it certainly is troubling. And I don’t know enough about the role 

of precedent in NLRB. But I hope that these are not decade-long 

precedents that have been established. This is very troubling. 

Senator KENNEDY. Thank you very much. 

Ms. Liebman, let me ask you this question. Isn’t it true that 

early in the act’s history, the card check on majority sign up was 

the law and then the board changed the law to require elections 

72

if the employer wouldn’t agree to accept the cards? Now isn’t it 

true the board has even further undermined the majority signup 

process? 

Ms. LIEBMAN. Yes, I think that is correct. There was a proposed 

amendment during the Taft-Hartley process which would have required a board election in order for a union to become the representative. That was not enacted by the Congress. And so, it is 

true that—and especially now it is long construed by the board——

Senator KENNEDY. So describe then the state of the law. 

Ms. LIEBMAN. The state of the law is that voluntary recognition 

is legal, is certainly legal. One court has said it is a favored element of national labor policy. The board, I think, has made clear 

most recently that in its view it is not a favored element of national labor policy. 

And it has clearly constructed obstacles to voluntary recognition, 

clearly removing any incentive for employers to agree to voluntary 

recognition processes. But the law does not require an election in 

order for the union to become the majority recognized representative. 

Senator KENNEDY. We hear a good deal about the dangers of 

going back to the old days. What were the conditions in the old 

days—did we have the massive corruption of the whole process and 

the system? Was this system abused? 

Ms. LIEBMAN. The election system or the voluntary recognition 

system? 

Senator KENNEDY. Both. 

Ms. LIEBMAN. No, I am not aware of abuses of the election process. But what clearly has happened is that unions have become disillusioned with the election process. And I would add here that 

whether they are right or wrong almost doesn’t make a difference 

because it is the perception that really matters. 

Senator KENNEDY. Okay. 

Ms. LIEBMAN. If their perception is the process doesn’t work, 

then it doesn’t work. 

Senator KENNEDY. Okay. 

Ms. LIEBMAN. We have got a problem. And clearly, what happens 

is the elections do not occur in quick order. In Canada in some 

provinces, for example, the elections are within 7 days. We don’t 

have anything like that. 

And during this period, employers are permitted to campaign 

against the union, and employees can become intimidated and lose 

interest over the course of time. And then there are the delays of 

the legal process while various issues can be challenged and appeal 

processes take place. 

And then there is the ability to challenge the process at the end, 

even if the union does win and is certified. The employer can refuse 

to bargain and further delays can occur while the case proceeds to 

the court of appeals. 

So it may not happen in every case. It may not happen in even 

half of the cases. But it certainly is not impossible for years to go 

by before the union sits down to negotiate a first agreement with 

the employer. That, I think, is an abuse of the system when that 

occurs. 

73

Senator KENNEDY. Let me move toward the issue of penalties. 

And I would like to ask Ms. Liebman. In your testimony you criticized the board for creating new obstacles to back pay awards. And 

I was particularly struck by the Grosvenor Resort case where the 

board said the workers who wait more than 2 weeks to start their 

job search should be penalized for their idleness. 

And the issue is what impact do these cases of weakening the 

remedies have on the board’s ability to meaningfully enforce the 

law. We all know if you don’t have an effective enforcement that 

that undermines the integrity of the law. 

We are going to hear later from Feliza Ryland, who is going to 

testify, who in 1996 went out on strike with 44 coworkers to protest employers’ refusal to bargain in good faith. Fired several days 

later. Her discharge is the subject of the board’s decision, in Grosvenor Resort issued in September 2007. 

And we saw that in 1998 the judge agreed that the employer had 

acted in bad faith and had illegally fired her, ordered the management to offer the jobs back and give back pay. She never got the 

back pay. In 2001, 5 years after the illegal firing, the NLRB agreed 

with a judge who ordered the same thing but never received any 

back pay. 

In 2002, the federal court enforced the NLRB, didn’t get any 

back pay. In 2005, the judge held back pay hearings and ordered 

the Grosvenor to pay up to $10,000 in back pay, never got any back 

pay. In September 2007, the NLRB issued a decision reducing the 

back pay to $2,400 because, according to them, she didn’t leave the 

picket line and get a new job fast enough. 

What is going on here? If that doesn’t sound like a system that 

is broken, I don’t know one that is. 

Ms. LIEBMAN. I would agree, Mr. Chairman. This statute, of 

course, was the first of—really, the first of the workplace statutes 

to be enacted. And it has historically been considered to have very 

weak remedies. It has got the weakest remedies of any discrimination cause of action of all the workplace statutes. 

All the board is permitted to do by statute is to award back pay 

and order reinstatement. The back pay remedy itself has been 

weakened, though, because of the duty to mitigate back pay damages. No compensatory damages are possible under this statute. 

And so, in the best of circumstances what the employees get by 

way of back pay is a weak remedy. The purpose of a remedy, of 

course, is to compensate the victim of discrimination and to deter 

wrongdoers. These remedies do nothing, certainly, to satisfy either 

element of the remedial principle. 

The difficulties, of course, are compounded by the long, long 

delays that these proceedings take. So by the time a discriminatee 

actually receives back pay, it is probably fairly meaningless to 

them. In the meantime, they have had to go on with their lives. 

And so, a situation like Grosvenor—and I was not on that case. 

Member Walsh dissented in that case, but I find his dissent persuasive in that I think it is very unfortunate that the majority used 

the language that they did where they said that to delay—if a person delayed for 2 weeks in seeking interim employment, that would 

reward idleness. 

74

That is very unfortunate language. And I guess I would conclude 

by agreeing with you that I think this is a symbol of the fact that 

the system is broken or the law is quite ineffective. 

Senator KENNEDY. Mr. Battista, when you hear that kind of 

chronology and over that period of time, what does it mean to you? 

Mr. BATTISTA. I, frankly, Senator, am appalled by that kind of 

chronology. I am thankful that 98 percent of our cases are disposed 

of very quickly. And this is sort of an aberration. 

I am also proud of the fact that this year we got 48 of the 50 

oldest cases at the board out, including Grosvenor. And we were 

able to get the case out. But, you know, I am very much opposed 

to having cases languish at the NLRB. And I have done my best 

in 5 years to try to get those cases out. 

Senator KENNEDY. Well, this happens. I mean, this goes on. This 

happens. I mean, what is your understanding of what the average 

back pay award is? 

Mr. BATTISTA. I have not got an average back pay award. 

Senator KENNEDY. Well, would you be surprised that it is $3,650? 

Mr. BATTISTA. I don’t know, Senator. 

Senator KENNEDY. Well, you must know as the chairman what 

the penalties are. I mean, this is rather startling that the head of 

the board doesn’t know what the penalties are. 

Mr. BATTISTA. In terms of penalties, we have never looked at 

them as penalties. Back pay has really been viewed as a remedy. 

And in terms of——

Senator KENNEDY. Well, what the remedies are. 

Mr. BATTISTA. In terms of the remedies, though, it is dependent 

on a number of things: how long the person has been off, whether 

or not the person has attempted to mitigate the losses, which the 

law requires. And so, I don’t have any average number at my fingertips. I will be more than happy to attempt to get that for you, 

though, sir. 

Senator KENNEDY. Well, each year 30,000 workers receive back 

pay, 30,000 workers receive back pay after the NLRB found that 

employers had violated their rights. Now I just asked you what the 

average back pay award was—$3,600. Does that sound to you as 

an adequate kind of remedy? 

Mr. BATTISTA. It doesn’t, and it sounds low. But I, again, don’t have any—I know that this past year in 2007 we collected $110 

million of back pay. So that number that you have sounds low, but 

I don’t have the facts at my disposal to answer the question. 

Senator KENNEDY. Well, I think it is worthwhile to investigate 

because I think that they are not even—in terms of trying to have 

the general kinds of awards to individuals, both in terms of back 

pay and for other violations of rights—sufficient. Your characterization of those—do you think that they should be increased? Do you 

think they are doing the job? 

Do you find that your door is beaten down by employers saying 

‘‘don’t be considering these kinds of penalties because we can’t take 

it?’’ Or do you think it is more of a slap on the wrist to these corporations, $3,600 as a cost of doing business? What is your experience? What are they telling you? 

Mr. BATTISTA. Back pay is what the statute——

75

Senator KENNEDY. How many complaints do you have from corporate America about these penalties being too high? 

Mr. BATTISTA. I don’t believe I have gotten any complaints from 

corporate America. 

Senator KENNEDY. Well, what does that say to you, that they are 

too high or too low? They are not complaining about it. What does 

it say to you? 

Mr. BATTISTA. I guess I wouldn’t expect to get complaints from 

either corporate America or anyone else. I don’t make the law. I 

just enforce it, Senator. 

Senator KENNEDY. Let me move on to the balance between the 

employer and workers’ rights. I think through the history, the 

board has had to balance the employers’ interest and the rights accorded to the workers under the law. And, for example, the board 

had to balance employers’ free speech rights with workers’ rights 

not to be threatened or intimidated during a union organizing campaign and employers’ private property rights with workers’ right to 

have access to union organizers. 

Ms. Liebman, do you want to just comment about the change and 

the shift as you perceive it? We have commented earlier, I think, 

about the legislation and the balance between engaging in union 

activity, and refraining from union activity. I am interested in your 

assessment, both the historical and the present balance in this 

area. 

Ms. LIEBMAN. Yes, thank you, Mr. Chairman. As I mentioned in 

my opening statement, the recent board’s decisions have quite frequently held that employee rights to engage in union or other concerted activity must yield to a variety of business interests. And 

those include employer free speech rights. 

Senator KENNEDY. It is ironic when the same board also trumpets the primacy of employee free choice in this statute because 

employee free choice cannot really be free if employers are free to 

intimidate their workers in connection with their selection of a representative or in connection with their engaging in concerted activity. And more and more this board has said that employer free 

speech rights trump the statutory rights and allow employers to 

engage in conduct and to make statements to engage in communications that under previous law clearly would have been considered unlawful. 

They have done this not by reversing precedent, but essentially 

just ignoring or sidestepping longstanding precedent under this 

part of the law. And this clearly stifles the right to engage in free 

choice and free exercise of statutory rights. 

Senator KENNEDY. On related, sort of subject matter—and that 

is the board has been criticized for providing fewer rights to fewer 

workers. For example, the board took away the right of nonunion 

workers to have a witness or some kind of representative with 

them when they are being investigated by their employer. Also the 

board has issued a number of decisions excluding broad categories 

of workers, especially many nurses and construction workers from 

the law’s protections. 

What effect do you believe these decisions have had on the workplace? And what steps do you believe are necessary to ensure the 

board fulfills its statutory duty to ensure collective bargaining? 

76

Ms. LIEBMAN. Thank you for the question. I think it is quite clear 

the trend has been to apply the statutory coverage provisions in a 

very narrow way. Earlier this morning someone mentioned the San 

Manuel decision. And that is the one notable exception to this 

trend. And that is where the board held that the statute applied 

to employees working for tribal casinos. 

But other than the San Manuel case, the trend has been to narrow the coverage of the law, particularly with respect to different 

kinds of employees, different kind of workers that are emerging in 

the workplace, including contingent workers or the increasing use 

of graduate teaching assistants in universities as universities feeling the economic pinch have turned more and more and more to 

using graduate teaching assistants instead of professors. 

And so, wherever there seems to be some new kind of worker 

looking for representation, it seems that the board majority has applied a very narrow construction of the statutory provisions and excluded them from the coverage of the act, which means that the act 

really is not applying to people who work for a living who give their 

services in turn for some kind of compensation, which really is the 

common law definition of an employee. 

Senator KENNEDY. I don’t know how long our colleagues are 

going to be tied up over there, but I am enjoying it. I admit. I never 

thought I would be chairing a House hearing. I don’t know quite 

that I had that in mind but it is a great honor. Let me add that 

very quickly. 

I am interested, if you would, Ms. Liebman, to respond to the 

questions about reversing precedents. I think that this is important, the Clinton board versus the Bush board. I think Chairman 

Battista gave a very strong statement on that. I think it is important that we have in the record your view. 

Ms. LIEBMAN. Yes, I appreciate the opportunity to reply to that. 

I haven’t had the time to study the figures cited by Chairman 

Battista, who quotes from Roger King a management lawyer’s 

speech. But the real issue is not the number of precedents that 

have been overruled. The real issue is the reason for the overruling 

and the substance of the change in the law. 

I would point out, by the way, that there are other ways of deviating from established law besides honestly and openly overruling 

precedent. For example, there is narrowly construing existing 

precedent or distinguishing cases away or simply ignoring them if 

they stand in the way of a desired result. And that we have seen 

quite a bit. I just mentioned some with respect to employer free 

speech rights. 

In addition, if you look at the board’s cases of the last 5 years 

and if you are able to read the footnotes in those decisions, you will 

see dozens and dozens of footnotes where existing precedent, many 

of it very longstanding, is questioned by one or more members of 

the majority in a way probably signaling to practitioners that these 

issues are open and certainly sowing confusion and uncertainty 

about the state of the law. 

As the Supreme Court has made clear, there is nothing inherently wrong with an administrative agency overruling precedent. 

In fact, it can certainly be appropriate. When changes in the economy or the workplace show that an old legal rule is outdate or 

77

where experience shows that an old rule is unworkable, where 

there are conflicts within the case law that need to be resolved, or 

when more careful examination shows that a prior board’s reasoning was flawed. In all those kinds of situations, overruling 

precedent is acceptable and even justified. This is an administrative agency, not a court. 

In my view, when the Clinton board reversed precedent, it did 

so for these kinds of reasons that I have just outlined. And the affect of the reversals was to bring the board’s law into closer harmony with the goals of the statute, which I have articulated before, 

to promote collective bargaining freely chosen. 

In my view, the Bush board has done the opposite with respect 

to overruling precedent. And Member Walsh and I have tried carefully to explain why we think that in our dissenting opinions. 

Senator KENNEDY. Okay. 

Ms. LIEBMAN. Thank you. 

Senator KENNEDY. I am going to give you both a chance. You 

have referred to it, but I think it is important to get your individual views about what you think the overall impact of the past 

5 years have been on the collective bargaining process. Do you 

think that it has been enhanced? Do you think it has been diminished? 

Chairman Battista? 

Mr. BATTISTA. I think, Senator, that the past 5 years we have attempted to decide cases on the basis of the law, apply the facts to 

the law, and reach a decision. I think there has been an emphasis 

on free choice for employees in our decisions. Once that choice is 

made, we certainly encourage collective bargaining. But I think 

that that is true. 

I think where we have moved precedent it has generally been 

back to the precedent that was long-recognized before the Clinton 

board overturned it. I think that perhaps the pendulum just moved 

a little bit from the left to the right and maybe into the center. And 

I hope that that is what these 5 years are looked at. 

Senator KENNEDY. Yes, I am never sure what these left and right 

references really mean. I think I understand your comment, but I 

am not sure that they are good or necessarily accurate measurements when you are certainly talking about workers’ rights. 

Ms. Liebman, I know you have referred to this in other answers. 

Perhaps you would just summarize your view. 

Ms. LIEBMAN. Yes. Let me start by saying that I think the 

most—perhaps the most notable thing about the last 5 years is the 

increasing disenchantment with the board, with the board’s decisions, but not just with their decisions, with the decision-making 

process, with the perception of the integrity of the process and a 

disenchantment with the law itself, the law’s ability to actually 

protect workers’ rights. I think that has been the most significant 

impact of the last 5 years. 

A significant policy choice of this board has been to elevate free 

choice. And in these cases, it has always been the choice to reject 

union representation over the promotion of collective bargaining. 

To my knowledge, this is the first board to articulate the ranking 

of statutory policies in this way. In fact, the only authority I have 

found in the board’s case law for articulating the policy weighing 

78

that way was in a dissenting opinion in, I think, 1983 or 1984 by 

former Chairman Donald Dotson. 

So in so doing, I think the board has presented its own dramatic 

policy decision as a simple matter of statutory interpretation. And 

this fifth dramatic policy decision, I think, colors everything that 

this board has really done by elevating essentially the right to refrain over promoting collective bargaining. 

This statute is not neutral about collective bargaining. It says expressly that the purpose of this—or the policy of this nation is to 

promote collective bargaining. The agency is neutral with respect 

to the parties that come before it. But it is not neutral as to the 

policy goals, which are to promote collective bargaining freely chosen. 

And last, I would say—and I made this point in my opening 

statement—that when the decisions and the policy choices so consistently seem to favor employer interests or oppose unionization or 

impede collective bargaining, I think there is a problem. Thank 

you. 

Senator KENNEDY. Let me——

Mr. BATTISTA. Senator, if I could——

Senator KENNEDY. Yes. 

Mr. BATTISTA [continuing]. I would like to make one comment. 

With regard to encouraging collective bargaining, I would like to 

note from the paper that I have submitted for the record that Archibald Cox stated that the Taft-Hartley Act ‘‘represents a fundamental change in philosophy which rejects outright the policy of encouraging collective bargaining.’’ That is on a 1961 Harvard Law 

Review volume. 

The fact of the matter is I think that the Taft-Hartley Act did 

work changes and did result in a more neutral stance by the board. 

But I disagree with Professor Cox. Once employees make clear 

their decision to be represented, then I think the agency has an obligation and does encourage collective bargaining. 

Senator KENNEDY. Well, we will come back. Didn’t you sign on 

to the Terracon case, the 2003 Terracon case that said that the 

purpose of the act is to promote collective bargaining? 

Mr. BATTISTA. I don’t disagree that it is. 

Senator KENNEDY. Okay. 

Mr. BATTISTA. It is when that promotion begins. 

Senator KENNEDY. All right. Let me just ask finally because then 

I know the others are here. 

Ms. Liebman, just the final question. The Supreme Court has 

held that workers who work for nonunion employers in order to organize from within, sometimes called salts, are entitled to full protection of the National Labor Relations Act. The Supreme Court 

has held that. 

Yet in several cases this year, the board’s decisions seemed designed to do an end run around that Supreme Court’s decision and 

to treat these union salts as second-class citizens. Aren’t the cases 

like the Oil Capital Sheet Metal and the Toering Electric Company 

contrary to the spirit of the Supreme Court’s protection for union 

salts? 

Ms. LIEBMAN. I would say so, Mr. Chairman. The Supreme Court 

in the Town and Country case made clear that a salt, as they are 

79

known, employees seeking to be hired in order to both uncover 

anti-union discrimination and to organize the workforce when 

hired, have the full rights of statutory employees. 

In the Toering decision, the board, I thought quite startlingly, 

said that people who don’t prove that they have a genuine interest 

in going to work are not statutory employees. That seems directly 

contrary to what the Supreme Court has said. 

I might add also that the Oil Capital decision and Toering departed from a decision of the Clinton board entitled SES which set 

out the framework for approving and litigating cases involving 

salts and hiring discrimination. That was a bipartisan decision at 

that time and seemed to work well. It was approved by the courts. 

And they took that both Toering and Oil Capital has deviated 

from that precedent as well in a way that I would suggest to you 

just represents a hostility toward the practice of salting. 

Senator KENNEDY. Thank you. 

I relinquish the gavel to my friend and colleague, Mr. Andrews. 

I have enjoyed this thoroughly. I mean, it is unique. I don’t have 

this opportunity over in the Senate, unlimited time, no Republicans 

here to correct me around. This is a dream come true. It has taken 

45 years to get here. 

But thank you. You have been very responsive and courteous. 

I thank the chair. 

Chairman ANDREWS [presiding]. Well, I would like to thank the 

chairman for his filling in for us here. Senator Kennedy can now 

write in his memoirs that he got to chair a House subcommittee. 

And I can tell my children that Senator Kennedy was my understudy. Not bad, not bad. 

I do want to ask just a couple of questions before we go to the 

next panel. I have not had my chance to question this panel. 

I want to thank the witnesses for their patience and their participation here this morning. 

Mr. Chairman, in discussing the Dana and Wurtland decisions, 

you indicated they were both about cards. That is obviously true. 

But I wanted to walk through my perception that there is a pretty 

significant contradiction. 

In the Dana decision, if I am not mistaken—correct me if I am—

the majority decision draws a distinction between representation 

decision by majority signup and representation decision by ballot. 

If I read that decision correctly, the reasoning is that the bar on 

reconsideration of recognition does not apply now to circumstances 

where the union was recognized by a majority signup. Is that 

right? 

Mr. BATTISTA. I am sorry, I didn’t hear the question. 

Chairman ANDREWS. For 40 years we have had a precedent 

where there is a bar on reconsideration of the recognition decision 

for a ‘‘reasonable period of time,’’ which has, I think, been broadly 

interpreted as 2 years or 3 years by the case law. 

Mr. BATTISTA. Right. 

Chairman ANDREWS. That bar no longer applies under this precedent in the case of majority signup leading to the recognition of the 

union. Is that right? 

Mr. BATTISTA. No, there is a recognition bar. And that is for a 

reasonable period of time. 

80

Chairman ANDREWS. Right. 

Mr. BATTISTA. It is not for any particular period of time. 

Chairman ANDREWS. Okay. Does that bar now apply in the case 

of majority signup equally as it does with the secret ballot recognition? 

Mr. BATTISTA. No, it just applies to a card check situation where 

there is a majority signup. 

Chairman ANDREWS. Okay. Okay. 

Mr. BATTISTA. And there is a recognition. Then there is a recognition bar. Where there is an election, the law has a certification 

bar. The union is then certified as the collective bargaining representative. And that bar is irrebuttable for a period of 1 year and 

then rebuttable after that. 

Chairman ANDREWS. But isn’t it fair to say that before the Dana 

decision, the same bar applied to majority signup and secret ballot 

elections? 

Mr. BATTISTA. No. 

Chairman ANDREWS. It didn’t? 

Mr. BATTISTA. The recognition bar, which is a reasonable period 

of time, would apply to a situation where an employer recognized 

the union on the basis of a card check. The certification bar would 

be the bar that resulted as a result of the union winning an election. 

Chairman ANDREWS. But at the very least, the Dana case stands 

for the proposition that as little as 22 days can be a reasonable period of time before decertification can be considered. Right? Wasn’t 

that the facts of that case—22 days after the employer voluntarily 

recognized the bargaining unit, there was an effort to decertify, and 

the petition was heard. Right? So isn’t there a much shorter period 

of time now before something is——

Mr. BATTISTA. I don’t believe so. I think what you have is with 

Dana there was a petition that was filed. That petition was dismissed by the regional director. And that is how the case got up 

to us. 

Chairman ANDREWS. But then the petition was——

Mr. BATTISTA. Under our decision——

Chairman ANDREWS. Right. 

Mr. BATTISTA [continuing]. We said that where you have a recognition, you are to notify the National Labor Relations Board, the 

regional office, of the fact of the recognition. And then there is a 

notice that is posted that gives the employees 45 days to petition 

if they wish. And if they don’t wish, the recognition bar kicks in 

after the 45-day period and goes on for a reasonable period. 

Chairman ANDREWS. Member Liebman, do you think that the decision is as narrow as the chairman just characterized it? 

Ms. LIEBMAN. Is that narrow? No, it is not as narrow because, 

well, the decision itself upsets what had long been the principles 

about voluntary recognition and the insulated period that would 

follow a voluntary recognition to allow the parties a chance to bargain collectively. 

Now, there is 45 days that, for one, kicks in where there is no 

insulated period. Campaigning can go on against the union. The 

employer may be reluctant to even begin bargaining with the union 

81

during that time because of the uncertainty of what is going to 

happen. 

The union may be subject to attack to its majority status during 

that 45-day period. And so, there is just the opposite of an insulated period that occurs. And if an election is actually scheduled 

and occurs, the open-endedness could go on for far more than 45 

days. 

So to say that this is just—I don’t remember exactly how the 

chairman put it—but a postponement is really much too simplistic 

and much too—well, it doesn’t do justice to what their decision did 

in the dramatic change in the whole process that this decision 

brought about, plus the notice itself. Right after a majority of employees have freely indicated they want union representation, the 

notice goes up in the workplace that says that you have a right to 

get rid of the union. That is unprecedented. 

Chairman ANDREWS. Thank you very much. 

We are going to proceed to two members that have questions for 

this panel and then quickly to the next panel. 

And we begin with Mr. Tierney. Mr. Tierney is recognized for 5 

minutes. 

Mr. TIERNEY. Thank you, Mr. Chairman. 

I thank our witnesses for being here today. 

Attorney Liebman, just direct your attention to the Worcester, 

Massachusetts case for a moment. And we talked a little bit earlier. I think somebody mentioned that they were looking at precedent that had been set during the Clinton administration. But in 

that case, precedent was set back in the 1960s, I think 1962, about 

the idea of balancing the interest of employees to self-determination and the interest of labor stability. 

And it was in the middle of a 5-year contract, the 3rd year in 

when I understand that that employee decided that they would like 

to get out of that representation. And the board instead of going 

along with general counsel’s recommendation, which was to adhere 

to the integrity of the contract or the life of the contract, decided 

that at this point in time the employer could just pack up and 

move on. 

Can you describe to me, you know, what damage that does to 

that balance of interests that have been going on for some 40 odd 

years? 

Ms. LIEBMAN. Yes, I believe you are speaking of the Shaw’s case. 

Mr. TIERNEY. Exactly, exactly. 

Ms. LIEBMAN. I dissented in that case. And I believed that the 

decision was wrong for a number of reasons. First of all, it allowed 

an employer who had agreed to a 5-year contract to withdraw recognition from the union after 3 years. Under board procedures, the 

employer would not have been permitted to file for an election, 

what we call an R.M. petition. 

The employer couldn’t do that. But the board majority said the 

employer could exercise its option just to unilaterally withdraw recognition. 

And that was even though the employees themselves had filed a 

petition which could be entertained by the board after 3 years of 

a contract. There is a 3-year contract bar that after 3 years, the 

82

board does entertain petitions filed by employees or by a rival 

union. It just won’t entertain a petition filed by an employer. 

So clearly, the decision upsets the balance that I spoke about and 

also impairs the integrity of collective bargaining and the integrity 

of contracts. This employer agreed to a 5-year contract, presumably 

got something for that agreement, in return for that agreement. 

And we are allowing now that employer to walk out. 

As I mentioned earlier, again, I think the rhetoric of the majority’s decision was a terribly unfortunate because they said that to 

not justify, to not allow the withdrawal of recognition would force 

people to endure union representation that they didn’t want. I have 

never seen comparable language used with respect to employees 

who have to wait for years to enjoy the benefits of union representation. 

Mr. TIERNEY. Mr. Chairman, Chairman Battista, I have got to 

tell you that, you know, when I read the decision, I get the same 

inference from that. You are just taking an unsolicited whack away 

on that. 

How do you reconcile dumping 40 years of precedent in a case 

like that? 

Mr. BATTISTA. I don’t believe that that issue had come up before. 

I believe there was a 5-year agreement. And the employees, without any employer instigation, presented the employer with a petition to get rid of the union. The question was what should we do 

with that. 

From a contract bar standpoint, the employer is certainly barred 

from acting in terms of for the 5 years. The question is how do you 

then give vent to or give meaning to what the employees want to 

do. 

Mr. TIERNEY. Well, what do you say——

Mr. BATTISTA. And what they did was withdraw recognition. 

Mr. TIERNEY. What do you say to the fact that they could have 

had an election, which was authorized? 

Mr. BATTISTA. Well, they could have had an election. I believe 

there were blocking charges filed in that case. And if an unfair 

labor practice charge is filed, it will block the election until such 

time as the investigation is finished. 

Mr. TIERNEY. Which would seem appropriate. But, I mean, what 

do you say about the whole idea of labor stability, about the integrity of the contract? I mean, it just seems that you went to unusual 

lengths to destroy both of those principles. 

Mr. BATTISTA. I think from the integrity of the contract there is 

a 5-year bar for the parties. For the board, we had to make the 

board majority, and we just had to make a decision between employee choice and stable bargaining relationships. And here the stable bargaining relationship was over 3 years, and the employees 

wanted to make a change. 

Mr. TIERNEY. Well, see, you could have let them have an election, 

but you chose not to go through the board’s own process of election. 

Mr. BATTISTA. It wasn’t the board that made the choice. It was 

the employer that made the choice. 

Mr. TIERNEY. Well, you allowed the employer to make the choice. 

I mean, now we are doing semantics here. 

Mr. BATTISTA. And we——

83

Mr. TIERNEY. You had the option as the board to say there is a 

process here and there is a balance to be struck, they are going to 

have an election. If that is what they want, they can go through 

that process, but we are not just going to unilaterally come in here 

and dump 40 years of precedent on this thing. 

Mr. BATTISTA. Well, I——

Mr. TIERNEY. Just let them have the election, have them go 

through that process and go through the whole procedure. 

Mr. BATTISTA. I don’t believe that there was any precedent that 

required an election. 

Mr. TIERNEY. Well, precedent or not, why didn’t you just let them 

go through the normal process? 

Mr. BATTISTA. Because I think we made an evaluation as a board 

and as a board majority that looking at employee free choice in this 

instance, they are wanting to make a change. And contract stability—the 3 years had passed. There was a period in which 

the——

Mr. TIERNEY. I have to tell you, Mr. Chairman, given the language, the unfortunate language that you used, I find it hard to 

think that the three of you were being champions for unions and 

labor in that case. 

Chairman ANDREWS. The gentleman’s time——

Mr. TIERNEY. I yield back. 

Mr. BATTISTA. Well, maybe we were being champions to the employees. And it might not be champions to unions, but certainly to 

the employees, Mr. Tierney. 

Chairman ANDREWS. The gentleman’s time is expired. 

The chair recognizes the gentleman from Georgia, Dr. Price, for 

5 minutes. 

Dr. PRICE. Thank you, Mr. Chairman. I appreciate you holding 

this hearing. I guess it is fitting that at this time of year in this 

session, at this time in the session that we are sitting here in a 

hearing that I think would be charitably called political. I guess 

one could draw other conclusions. But I appreciate the opportunity, 

hopefully, to shed a little light on some principles. 

Ms. Liebman, you have in some way in your comments seemed 

to connote or imply that freedom ought not be the paramount principle by which we act as a nation in employer and employee relations. You also mentioned curiously—I had to write it down—that 

private property rights ought not—they ought to be subservient to 

something else and that free speech ought to be subservient. 

I just find it curious and troubling that we want to fall back on 

principle for the NLRB, but the principle upon which we want to 

fall isn’t the Constitution, the rule of law, freedom, and what 

Americans across this nation hold dear, which is, I guess, why I 

find it amusing at best that we are here in December talking about 

these issues when we know that this majority began the year removing the right to a secret ballot for employees to form a union. 

Mr. WU. Will the gentleman yield? 

Dr. PRICE. So the desire—I beg your pardon? 

Mr. WU. Would the gentleman yield? 

Dr. PRICE. Who is asking? 

Mr. WU. The gentleman from Oregon is asking. 

Dr. PRICE. Absolutely. 

84

Mr. WU. Has the gentleman ever seen an election in the way 

that it is contested? 

Dr. PRICE. Reclaiming my time, clearly, you see the politics of the 

nature from the other side. So I think that principles of freedom, 

principles of free speech, principles of private property rights ought 

to be paramount, ought to be paramount. 

When I hear the chairman talk about the progress that has been 

made on the board—and I am not intimately familiar with the activities of the board. I have attempted to bone up on that. But 

when I hear that the caseload has significantly decreased by hundreds, that the delay in cases has significantly decreased by hundreds and that the number of cases that were overturned by the 

previous administration’s NLRB that overturned precedent and the 

number of years of precedents compared to this, I think it belies 

any true accusation on this board that it is not living up to the appropriate standards that it was and that it has not been fair in its 

process. 

So I think that it is important to appreciate why we are here. 

And it is important to remember that in the context of previous 

boards, I would suggest that somebody looking from the outside 

who didn’t have any ax to grind at all would say that this was a 

board that was working relatively well and maybe even better than 

in the past and was being respectful of precedents to a greater degree. 

I represent the 6th District Georgia, which is Northern Suburban 

Atlanta, a lot of small businesses, lots of small businesses and folks 

who are very concerned about cases in which salting occurs. 

And so, I would like to ask, Mr. Chairman, if you would please 

comment on the issue of salting, comment on the board’s stance as 

it relates to salting and whether or not any changes you believe 

would be recommended to this committee and vis a vis salting. 

Mr. BATTISTA. While, I have no legislative changes, I can tell you 

certainly what we have done from a decisional basis. We follow 

FES, which is a Clinton board decision dealing with whether or not 

someone has been improperly terminated and the burden of proof 

in that insofar as a salt goes. We have made a couple of changes. 

We have looked at where a salt is unlawfully terminated. We 

have looked at the length of the back pay period. And the salt, unlike another employee who might be seeking indefinite employment, is there for a fixed period of time to organize the employees 

or, if they are unsuccessful, then to move on to another employer 

where they can organize the employees. 

And so, we have said that the normal presumption that back pay 

would continue on indefinitely doesn’t apply in the case of the salt. 

And you have got to look to the——

Chairman ANDREWS. Excuse me, Mr. Chairman, if I could ask 

you just to wrap up quickly because the time is expired. So if you 

would finish your thought. 

Mr. BATTISTA. We fine tuned it really with Oil Capital and our 

decision in Toering, really. 

Dr. PRICE. Thank you. 

Mr. Chairman, may I inquire of the chairman just a question regarding this panel? 

Chairman ANDREWS. Sure. 

85

Dr. PRICE. It is my understanding that the minority wasn’t allowed a witness on this panel. Is that correct? 

Chairman ANDREWS. I don’t believe that is correct at all, no. 

Dr. PRICE. So the minority was solicited and had an opportunity 

to see the panel member here? Is that correct? 

Chairman ANDREWS. Well, I would note that the chairman of the 

National Labor Relations Board was appointed by the president—

NLRB was appointed by the president. 

Dr. PRICE. I would note as well that the member is appointed by 

the president as well, has been on two occasions. 

Chairman ANDREWS. My understanding is the minority was consulted about the witnesses at this hearing. 

Dr. PRICE. And I appreciate that. I would just ask you to check 

with your staff regarding that. Thank you. 

Chairman ANDREWS. The chair recognizes the gentleman from Illinois, Mr. Hare. 

Mr. HARE. Thank you, Mr. Chairman. 

And let me just say with all due respect to my friend from Georgia, I don’t think it really matters what month we have these hearings. I don’t see these hearings as political at all. I think we have 

an obligation to have people come before this committee and to be 

able to ask questions. 

Mr. Chairman, let me just respectfully disagree with that assessment of the NLRB. I guess I am one of those people you referred 

to as—I am trying to remember the term, and it will come back to 

me. But I served 13 years in a union. And I worked for a member 

for 24 years. I have been here for a year. 

So I think I have 28 years of being able to look at labor boards 

and working with them and seeing decisions. I will be very candid 

with you from my perspective. We are just going to have to agree 

to disagree. I don’t think I have ever seen a labor board so tilted 

against unions, against working people and more in favor of employers than this board in the 28 years. 

I think it was special interest you said. So with all due respect 

to the people in organized labor and unions, I consider them special 

interest because they are special people. 

I am looking at some of the decisions that have been made here 

where large groups have been excluded from NLRA protection, including—excuse me—graduate teaching assistants, disabled individuals working as janitors, faculty members, newspaper carriers 

and haulers, temporary employees working jointly for a supplieremployer and a user client unless both employers consent, and 

hundreds of thousands of professional technicians and skilled employees by radically broadening interpretation of the NLRA term of 

supervisor. 

The other thing I am very disturbed about is you have given employers greater leeway to intimidate course workers during organizing campaigns, from my perspective, also for people to—one of 

the other loopholes that this board has decided to create—and by 

the way, the trouble that I have with this board is you are not just 

following the law, I think you are trying to interpret it internally 

and then change it when you can when it fits. 

For example, the board held in one of your September cases that 

employers can condition severance pay on workers’ agreement to 

86

waive their rights to report their employer’s illegal conduct. And 

this rule essentially allows employers to buy their way out of 

breaking the law. 

The EEOC treats such coercion as illegal, and it sues employers 

who make these kinds of threats. So I have a very difficult time 

understanding why the board would make decisions, you know, 

other than if we are talking politics here, I think we may be viewing this from a political perspective. 

And I would like to ask the member, if I could, you know, do you 

see partisanship, you know, on this NLRB as contributors to this 

anti-union sentiment, or it is just merely a symptom of what is 

happening? And from your viewpoint—I know you have dissented 

on a number of these things—do you think that this board is, in 

fact, trying to reinvent the wheel here instead of enforcing what we 

have? 

But I will tell you again having said this, I am very, very concerned that ordinary people and their rights are being adversely affected by decisions that this board makes. And if they don’t like 

them, they just change them. And I don’t know if you would concur 

with that. I would be interested in any thoughts you have. 

Ms. LIEBMAN. Is that question for me? 

Mr. HARE. Yes. Sorry, a lengthy one. 

Ms. LIEBMAN. Thank you. I would be very hesitant to ascribe motivation to my colleagues on the board. 

Chairman ANDREWS. I don’t believe your microphone is on, Member Liebman. Thank you. 

Ms. LIEBMAN. Thank you. I would be hesitant to ascribe motivation to my colleagues on the board. I would prefer rather just to 

look at the decisions themselves, the process of the decision making 

and the impact of the decision-making. 

And as I said in my opening statement, I think that when you 

look at the policy choices that have been made over the past 5 

years, you see that there is a kind of constant drumbeat, that there 

is nothing different about the September cases. Maybe they built 

to a crescendo, but there is really nothing different in the tenor of 

these cases from throughout. 

And when you look at the policy choices, they all tend to create 

obstacles to collective bargaining, create obstacles to union representation, and elevate employer interests over employee statutory rights. A comment was addressed to me a few moments ago 

that my statement sounded like I didn’t value freedom. That is certainly not the case. 

Collective bargaining is to be freely chosen. And that means free 

from coercion by unions or by employers. And some of the free 

speech cases decided by this board, in my view, clearly infringe on 

the right of employees to engage in free choice. Likewise, when employers are given the right to vindicate their employees’ free choice 

rights, that is not free choice. 

So you have to look at the question of whether freedom is really 

free under this statute. When you consistently elevate private property or other managerial interests over statutory rights, something 

is wrong. 

The Supreme Court long ago said that private property rights 

and employee statutory rights have to be accommodated to some 

87

extent. When an employee goes to work for an employer and goes 

to work on the premises, the employer’s private property rights 

must yield to some extent so the employees have the right to communicate with each other at work about their terms and conditions 

of employment and about unionization. 

So much of this over the course of 70 some years has been a balancing act. But under this statute, it is just inconceivable that 

every time a policy choice is made, it is made in the direction it 

has been made. You can have differences about how you do the balancing. And certainly, over the years, there have been different balances. 

But this, really, over the last 5 years, as I said, I think it is 

something different. It represents a competing or a different view 

of this statute, a different expression of policy preferences. 

Mr. HARE. Thank you. I am glad you were able to answer a question that you didn’t get the time to answer. So thank you. 

Chairman ANDREWS. The gentleman’s time is expired. 

The chair recognizes the gentleman from Oregon, Mr. Wu. Is he 

here? Okay. 

The chair will recognize the gentleman from Michigan, Mr. Kildee, for 5 minutes. 

Mr. KILDEE. I have no questions. 

Chairman ANDREWS. Mr. Wu has reappeared. Do you have questions, Mr. Wu? It is your time. 

Mr. WU. I thank the chairman——

Chairman ANDREWS. Okay. Mr. Wu in the holiday spirit has decided that our board members can return to their work. 

We thank you for your participation this morning very much. 

And thank you for your service to our country. 

Ms. LIEBMAN. Thank you. 

Mr. BATTISTA. Thank you. 

Chairman ANDREWS. I would ask the members of the second 

panel to come forward. We thank them for their patience. 

I am going to start to read the biographies now as the members 

come to the front so we can expedite our hearing. Matt Finkin is 

the Albert J. Harno and Edward W. Cleary chair in law at the University of Illinois. He teaches labor and employment and directs 

the college’s of law program in comparative labor and employment 

law and policy. 

Professor Finkin has previously taught at Southern Methodist 

University, Duke University, and the University of Michigan Law 

Schools. He received his B.A. from Ohio Wesleyan University, an 

LLB from New York University, and an LLM from Yale University. 

Professor, welcome to the committee. 

Ms. Feliza Ryland—did I pronounce your name correctly? Ms. 

Ryland is a former employee of Grosvenor Resort. Ms. Ryland 

worked as a room attendant at the Grosvenor Resort Hotel from 

1984 to 1996 and is one of the many workers directly affected by 

one of the decisions issued by the NLRB this past December. 

She is currently a housekeeper at the Old Star Resort, a Disney 

Hotel in Disney World in Orlando, Florida and is a proud member 

of the union Unite Here. Ms. Ryland is married, has one adult son. 

Ms. Ryland, welcome to the committee. 

Ms. RYLAND. Thank you. 

88

Chairman ANDREWS. Mr. Charles Cohen is returning to the committee. He is a partner at Morgan, Lewis, Bockius law firm where 

he focuses on representing senior management in labor and employment law in the private sector. From 1994 to 1996, Mr. Cohen 

served as a member of the National Labor Relations Board. 

For the past 3 years, Mr. Cohen has been named one of the leading U.S. lawyers for employment law by Chambers USA. He earned 

his B.A. from Tulane University in 1967 and his J.D. from the University of Pittsburgh School of Law in 1970. 

Mr. Cohen, welcome back. 

Mr. COHEN. Thank you very much, Chairman. 

Chairman ANDREWS. And finally, Jon Hiatt is the general counsel for the AFL-CIO. He was appointed to that position on November 1st of 1995. Mr. Hiatt previously served for 8 years as general 

counsel for the Service Employees International Union where he directed that union’s legal department. 

Before joining SEIU, he was a partner in a labor law firm in Boston. Mr. Hiatt graduated from Harvard College and the Boalt Hall 

School of Law at the University of California, Berkeley. 

Mr. Hiatt, welcome to the committee. 

Professor Finkin, I think the witnesses heard the ground rules. 

Your written statements have been accepted without objection for 

the record. We would ask you to summarize your written statement 

in about 5 minutes. 

When the yellow light appears, you have 1 minute to wrap up. 

When the red light is on, we would ask you to finish. And then we 

will go to questions from the members. 

So, Professor Finkin, welcome, and we look forward to your testimony. 

STATEMENT OF MATT FINKIN, PROFESSOR, UNIVERSITY OF 

ILLINOIS 

Mr. FINKIN. Thank you, Mr. Chairman. It is truly a privilege to 

appear before this body. As someone who has taught, researched, 

and published in labor law for 33 years to finally meet face to face 

with people who have the capacity to make the raw material out 

of which I make my living. You have my written remarks. I will 

try very briefly to summarize the four leading points. 

First, since 2004, the National Labor Relations Board has embarked upon an historically unprecedented course rendering decision after decision, some overturning doctrine of short duration, 

some overturning doctrine of more than 40 years, which combined 

to make it more difficult for employees to institute or maintain a 

collective bargaining relationship or that curtail or eviscerate the 

rights of nonunionized employees the right to engage in concerted 

activity for mutual aid or protection. This much I submit as simply 

beyond dispute. 

The chairman used the phrase special interests. I do not think 

I represent any special interests. I merely represent an honest academic laboring in the vineyard of labor law. But I note that a petition has been submitted and entered on the committee record 

signed by what I believe is a majority of the full-time teachers of 

labor law in American law schools. 

89

I did not have the benefit of that petition at the time I wrote my 

own remarks. But I note that the sentiments that I express here 

are completely concordant with what a majority of my colleagues 

in the academy think to be true. 

Second, none of these decisions, none of them, are statutorily 

commanded. They are the product of policy choices made by the 

board. That, too, is beyond dispute and, indeed, is confirmed by the 

previous discussion. 

Ironically, given the intense politicization of the board in recent 

years, a differently constituted board majority could in future reconsider each of these decisions and reach an opposite effect well 

within the ambit of administrative discretion. 

Third and related to that, the board has the power to fashion national labor policy interstitial to the labor act. That is the function 

of an administrative agency, to find tune and adjust the statute to 

changing circumstances to unforeseen conditions in the economy or 

in larger trends in society. That is its function. 

For reasons that my remark explain, my final point and really 

an answer to your opening question, Mr. Chairman, the board’s decisions are not responsive to any discernible trend in society or any 

discernible economic demands or need. On the contrary, they work 

in a quite opposite direction. 

I submit that they are oblivious to the unfolding realities of the 

American workplace on many of the kinds of questions that Senator Kennedy remarked upon as he opened. I believe my views are 

shared, as I said, widely within the academic community, those of 

us who teach, research, and worry about the direction of American 

employment law. 

[The statement of Mr. Finkin follows:]

Prepared Statement of Matthew W. Finkin, Harno-Cleary Chair in Law, 

University of Illinois College of Law 

My name is Matthew W. Finkin. I hold the Harno-Cleary Chair in Law at the 

University of Illinois College of Law in Champaign, Illinois. For more than three 

decades I have researched, published, and taught labor and employment law in both 

the domestic and international context. A brief biographical entry is appended to 

these remarks. 

I have been invited to address the impact of recent decisions of the National 

Labor Relations Board on worker rights. That, to paraphrase Justice Frankfurter, 

is a horse soon curried.1 I should think it might be helpful to this body if I situate 

the Board’s decisions on the larger legal, social, and economic landscape; and respectfully to suggest at the close what areas have call for legislative correction. 

I. The Pattern of NLRB Decisions 2004–2007

The current Labor Board has charted an historically unprecedented course, overturning doctrine—some of long standing, some of recent vintage—and charting new 

legal ground altogether, limiting the scope of those to whom the protections of the 

Labor Act extend,2 making it more difficult for employees to institute or maintain 

a collective bargaining relationship with an employer,3 limiting the remedies that 

otherwise might be due to persons whose statutory rights have been violated,4 limiting the rights of economic strikers,5 limiting the General Counsel’s ability to vindicate the Act,6 and narrowing or eliminating other statutory protections.7

As the latter is of particular professional interest, please bear with me as I draw 

the Committees’ attention to the Board’s readoption of the rule that an individual 

faced with disciplinary interrogation in a non-unionized workplace has no right of 

accommodation to the requested presence of a coworker.8 In much the same spirit, 

but in a case of first impression, the Board held that an employee on his break time 

on a customer’s parking lot can be forbidden by his employer to talk to a union organizer when the organizer’s presence in the parking lot was unauthorized by the customer, i.e., to refashion the customer’s property-based right to exclude union orgaVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
90

nizers from speaking into a contractor’s non-property based right to forbid its employees from listening.9 The Board has held that an employee who seeks the aid of 

a co-worker in pursuing a complaint of sexual harassment was not acting for ‘‘mutual aid or protection’’ because her individual claim advanced no group interest, despite the unmistakable weight of authority to the contrary.10 And the Board has 

held that a collective protest by school bus drivers, to save their unionized jobs by 

adverting to a non-union competitor’s record of hiring unsafe drivers, was unprotected—indeed ‘‘disloyal’’ to a company to whom no common law duty of loyalty is 

owed11—because the text of their protest ‘‘implicate[d] the safety of children, not the 

common concern of employees,’’12 i.e., that school bus drivers have no work-related 

interest in the safety of the children they transport. The Board could rest on this 

counter-intuitive proposition because the text of the drivers’ protest drew no connection to their interest in saving their unionized jobs; but that their petition had to 

do so was not heretofore the law, a fact the Board neglected to mention.13

The Board has also proven itself capable of maintaining two inconsistent policies 

simultaneously. In BE&K Construction Co.,14 the Board held that an employer’s 

maintaining an eventually unsuccessful lawsuit for no purpose other than one violative of the Act, e.g., simply to impose high litigation costs on a union, is nevertheless 

not an unfair labor practice if the suit was ‘‘reasonably based.’’ The Board justified 

this rule out of its professed commitment to the First Amendment. But that commitment has not manifested itself in a similar protective solicitude toward the display 

by unions of an inflated rat in conjunction with a labor dispute or to union performance of ‘‘street theater’’ critical of an employer even though the teaching of the Supreme Court that such is free speech seems beyond peradventure.15

The Chairman of the NLRB has defended the Board’s decisions by adverting to 

the availability of judicial review as a corrective to any administrative excess16 and 

by adverting to the role of the Board as a ‘‘neutral arbiter of disputes.’’17 The former 

supplies no justification for the course the Board has charted. The latter obscures 

the Board’s decisions by a profound mischaracterization of its role. 

II. The Context of Administrative Law 

Let us first consider judicial review. The United States Supreme Court has repeatedly stressed the role of the Labor Board in the making of national labor policy;18 and general principles of administrative law require the courts to defer to an 

agency’s policy decisions so long as they are within the area of discretion reserved. 

The Board may modify antecedent doctrine or abandon it altogether; it may fashion 

novel doctrine interstitial to the Act, that is at its margins even if it is at the margins where the law might most importantly be felt in the face of changed circumstances. In principle, an agency may not alter the basic focus or function of its 

organic law,19 but that principle fails to address the systematic narrowing of the organic statute’s mission by a combination of numerous decisions no one of which, 

taken only on its own, can be said to lie outside the ambit of administrative decision. The appearance of legal continuity is thus maintained even as the Act’s stated 

purpose, of ‘‘encouraging the practice * * * of collective bargaining,’’20 is transformed or the rights of employees are curtailed or eviscerated. That is just what has 

happened in the course of the past few years. Accordingly, it will not due to refer 

to judicial review—and rate of judicial affirmance—as any indication that the Board 

is performing responsibly. 

III. The Politicization of the Labor Board 

The Board’s activist posture has been explained in part by the failure of Congress 

to attend to national labor policy which vacuum has accordingly been filled by the 

Board’s refashioning of it. That potential has long existed but, as Professor Joan 

Flynn has observed, it was muted in early practice:21 Presidents Roosevelt and Truman drew their appointees from the ranks of the Board’s bureaucracy and from the 

academy. President Eisenhower appointed persons who had represented management, but from professional backgrounds completely comfortable with the institutional role of unions. Thereafter, Presidents Kennedy, Johnson, and Carter continued the tradition of appointing only career bureaucrats and academics; Presidents 

Nixon and Ford continued the Eisenhower practice of also appointing established 

management lawyers. 

Even so, the change from the ‘‘Eisenhower Board’’ to the ‘‘Kennedy Board’’ was 

accompanied by a swift recasting of the Board’s doctrinal gloss on the then newlyenacted provision of the Landrum-Griffin Act dealing with organizational picketing. 

This shift, which the late Bernard Meltzer referred to as Five on a Seesaw, was 

thought extraordinary at the time and elicited his critical observation that, ‘‘The 

Board’s changes were too rapid to be ascribed to institutional developments or to 

91

new insights produced by a maturing expertise; they reflected the different value 

preferences of new appointees interacting with loose statutory provisions.’’22

The Reagan administration broke with the past: ‘‘Whereas his predecessors had 

appointed management lawyers from well-known law firms—solid members of the 

labor-management ‘club’—Reagan went wholly outside the mainstream labor relations community in his early appointments.’’ He appointed persons known as ‘‘antiunion crusaders,’’ putting, as Professor Flynn put it, ‘‘ ‘the proverbial fox [or foxes] 

in the chicken coop.’ ’’23 Scholars debated the magnitude and significance of the 

shifts in policy the Reagan Board effected;24 but these shifts pale in comparison 

with the current Board’s record. 

President Clinton was the first Democratic President to appoint a union lawyer 

to the Board and its politicization has now become institutionalized. A Canadian observer put the current situation in a nutshell. ‘‘In the United States where, because 

of legislative paralysis, there has been no major labour law reform for 50 years, the 

government in power influences the direction of labour relations policy through its 

appointments.’’25 Consequently, as Professor James Brudney has pointed out, this 

Labor Board, now heavily freighted politically, is at a remove from constructive engagement with the Act’s application in the contemporary context.26

Note that the Board’s decision in Dana Corp.27 abandoned Board policy of almost 

forty years duration, remaking voluntary recognition of a union into an unstable decision. Note that Oakwood Care Center28 abandoned a Board decision of only a few 

years’ duration and returned to a state of the law making bargaining rights unavailable to an increasing number of workers who are caught up in trilateral employment networks. To echo Bernard Meltzer, the former was the product of no new insight produced by a maturing expertise; nor was the latter a reaction to some institutional development that challenged the prior policy predicate. Indeed that predicate—the growth of trilateral employment networks—remains and the decision the 

Board abrogated was too new to for the Board to learn whether it was responsive 

to enabling those workers to be represented. To draw on Meltzer’s observation, these 

and the like decisions reflect nothing more than the value preferences of those who 

decided them. 

IV. The NLRB as a Political Institution 

It would blink at reality to ignore the fact that the Labor Board is embedded in 

a political matrix. Nor were those who fashioned the Act so foolish as to believe otherwise. In my research in the National Archives on the drafting of the Act I encountered an exchange between Philip Levy, a young New Deal lawyer fresh out of the 

Harvard Law School, and Calvert Magruder, on leave from the Harvard Law School 

as General Counsel of the ‘‘old’’ National Labor Relations Act to whom Levy reported, both deeply engaged in the drafting of the Act. The Act’s provision allowing 

the Labor Board the power to certify a representative without a secret ballot election had been criticized as giving the Board the power by that choice to ‘‘freeze out 

independent or progressive groups,’’ given the display of radical labor organizations 

contending with established, politically conservative unions. Levy defended the 

draft, which became law, on two grounds: 

[F]irst, it is extremely important that the Board have the power to certify or to 

determine representation in any manner it sees fit, and secondly, if the Board is 

going to be pro-employer, the jig is up. 

Nevertheless, the Board Chairman has maintained that the Board’s ‘‘intended 

statutory role [is] as [a] neutral arbiter of disputes.’’29 As Clyde Summers observed 

more than fifty years ago, responding to the very same profession of neutrality made 

by a sitting Board Chairman: 

The critical issues before the Board represent underlying disputes between unions 

and management. No matter how the Board decides these issues, it can not avoid 

aiding one and hindering the other. Impartiality is impossible. There can be no impartial rules governing the relationship between a tree and the woodsman’s ax, even 

though we let the chips fall where they may.30

Summers defended the need for administrative discretion: legislation is always 

imprecise, new or unforeseen circumstances always arise, the sentiment of the country shifts, times change; and it is impractical for the legislature to sit in constant 

readjustment of labor policy. Thus, 

The duty of the agency is to discern the threads of purpose which run through 

the statute and to feel the thrusts of policy which the statute represents. These 

should then become the chief guideposts for the exercise of discretion, and policy 

making should be confined within these broad bounds.31

But, just as an agency may be valuable because it is responsive, ‘‘it can be dangerous because it is not responsible.’’32 The danger of irresponsibility, the danger 

of administrative legislation lies not in the open flaunting of statutory language. It 

92

lies rather in the failure to adhere to the underlying purposes of the statute. 

Through lack of either insight or self-restraint, the members of the agency may unconsciously substitute their personal judgment of values for those premised by the 

statute.33

And the premise—the stated premise—of the statute is the protection of unionization and the promotion of collective bargaining.34

Although there is deep-seated disagreement as to the worth and rightness of 

unionization, that issue has been decided by the statute. The government is not neutral in the establishment of collective bargaining, but has charged the Board with 

the function of lending the power and prestige of government to protect the process 

of unionization. To ‘‘make a fetish of impartiality’’ in this area is to compromise one 

of the central purposes of the statute.35

I do not believe that any disinterested reader of the contemporary Board’s record 

could characterize the pattern of Board decisions as the product of impartiality or 

could conceive of the Board as a neutral arbiter. 

To reiterate: the Board is summoned to fine tune national labor policy, consistent 

with the purpose of the law, in the face of changed circumstances and demonstrable 

need. But the Board’s recent decisions are antithetical to the statutory end and are 

oblivious to both changed circumstances and demonstrable need. 

V. The Need for Legislation 

The Canadian observer’s point bears re-emphasis: we address the workplace of the 

21st century with a labor relations law fashioned in the 1930s and which received 

its last major legislative reconsideration almost a half century ago. At that time, the 

United States’ economy stood astride the world as a dominant supplier of manufactured goods; unions had achieved their highest historical density, of 35% to 37% of 

the civilian non-agricultural labor force; and a major concern was of whether unions 

had ‘‘too much’’ economic and even political power even as the legitimacy of collective bargaining was a given.36

Today, the United States is overwhelmingly a service economy. Work is being performed in a variety of ways that resonate against the model of a full-time worker 

with an expectation of a lifetime career with a single employer—by part-time workers, leased workers, temporary workers, and workers categorized as independent 

contractors or ‘‘own account’’ workers. A much larger percentage of the workforce 

are professionals who function not as true independent contractors but as employees 

in highly bureaucraticized work settings. Corporate managers are under global competitive pressure and pressure from investors for a return that constrains their ability to reward labor commensurate even with its contribution to increased productivity, as a result of which the nation is experiencing an ever widening inequality 

of income;37 and the risk of medical need during employment and of maintaining 

a decent level of income after employment is being shifted inexorably on to the employee.38 But today, union density in the private sector is below 8% and employers 

commonly, and aggressively, challenge the legitimacy of collective bargaining.39

The adaptation of our labor market institutions to the economy of this and the 

immediately ensuing decades has occupied many serious scholars.40 They put large 

questions; but, fortunately, we need be concerned here with only one more manageable aspect—how employees can secure representation and effective enforcement of 

their statutory rights. These questions have drawn the attention of labor law scholars for decades41 and I believe there to be a consensus that the most pressing problems are of coverage, ready access to representation, and remedies to effect the law’s 

purpose, which problems have only been exacerbated by the Board’s recent decisions. 

1. Coverage. The Board has constrained the Act’s reach by excluding persons 

found to be independent contractors, oblivious to the economic realities of their relationship to the employer,42 or otherwise to be statutory non-employees under the 

guise of being supervisory, managerial, or in some other exempting category. These 

exemptions call for statutory readjustment to the unfolding realities of the modern 

labor market. 

2. Ready Access. What was thought a matter of routine, almost a matter of course, 

in the 50s and 60s has now become a struggle for institutional legitimacy. The impressive Freeman-Rogers study indicates that at least 23% of American workers 

want union representation as such.43 I.e., about 14% of the workforce, at least fifteen million workers, want but do not have union representation. The Labor Act 

was meant to facilitate that demand but the Board’s recent decisions are to an opposite effect. 

3. Remedies. The Act depends almost entirely on voluntary compliance, especially 

in its imposition of a duty to bargain in ‘‘good faith.’’ In other unfair labor practices, 

Congress chose to give the Board limited ‘‘make whole’’ power to avoid the delay 

93

of jury trials: swiftness of redress was the trade-off for the lack of full compensatory 

relief.44 Today, justice is not swift,45 relief is not compensatory, and the law has little or no deterrent effect. Something needs to be done.46

ENDNOTES

1Olberding v. Ill. Cent. Rr. Co., 346 U.S. 338, 340 (1953). 

2 E.g., Brown University, 342 NLRB No. 42 (2004) overruling New York University, 332 NLRB 

1205 (2000). See also Pennsylvania Academy of Fine Arts, discussed in note 42, infra. 3 E.g., Dana Corp., 352 NLRB No. 28 (2007) overruling Keller Plastics Eastern, Inc., 157 

NLRB No. 55 (1966); Oakwood Care Center, 343 NLRB No. 76 (2004) overruling M.B. Sturgis, 

331 NLRB 1298 (2000); Truserve Corp., 349 NLRB No. 23 (2007) overruling Douglas-Randall, 

Inc., 320 NLRB 431 (1995); Crown Bolt, Inc., 343 NLRB No. 86 (2004) overruling General Stencils, 195 NLRB 1109 (1972). Cf. Haborside Healthcare, Inc., 343 NLRB 906 (2004) limiting Stevenson Equipment Co., 174 NLRB 865 (1969). 4St. George Warehouse, 351 NLRB No. 42 (2007) overruling Lloyd’s Ornamental & Steel Fabricators, Inc., 211 NLRB 217 (1974) (and its predecessors). The decision shifts the burden of 

proof on to the General Counsel to show due diligence in the employee’s obligation to mitigate 

back pay for an employee dismissed for exercising her statutory rights. The Board relies on the 

proposition that the employee, not the employer, is in possession of that information. The Board 

does not note that in labor arbitration, where back pay for a wrongful discharge is the universal 

remedy and where it, too, is limited by a duty to mitigate, ‘‘the burden of proving lack of diligence or an honest, good faith effort on the employee’s part is on management.’’ ELKOURI & 

ELKOURI, HOW ARBITRATION WORKS 1225 (Alan Ruben ed., 6th ed. 2003) quoting HILL 

& SINICROPI, REMEDIES IN ARBITRATION 216 (2d ed. 1991). I.e., that the Board’s longstanding rule merely reflected the accepted norm of industrial justice. 5 Jones Plastic & Engineering Co., 351 NLRB No. 11 (2007) overruling Target Rock Corp., 324 

NLRB 373 (1997). 6 In Toering Electric Co., 351 NLRB No. 18 (2007), breaking new ground, the Board held that 

‘‘an applicant for employment is entitled to protection as a * * * [statutory] employee is someone genuinely interested in seeking to establish an employment relationship with an employer.’’ 

Accordingly, in order to prove that an employer had a policy or practice of refusing to hire on 

the basis of union membership or activity the General Counsel must prove that an identifiable 

applicant would in fact have accepted to work. See supra note 29. 7See, e.g., William Corbett, The Narrowing of the National Labor Relations Act: Maintaining 

Workplace Decorum and Avoiding Liability, 27 BERK. J. EMP. & LAB. L. 23 (2006). 8 IBM Corp., 341 NLRB No. 148 (2004) overruling Epilepsy Foundation of Northeast Ohio, 331 

NLRB 676 (2000). The disposition of this issue has reflected the political shifts in the composition of the Board since 1980. See Matthew Finkin, Labor Law by Boz—A Theory of Meyers Industries, Sears Roebuck & Co., and Bird Engineering, 71 IOWA L. REV. 155 (1985). 9 North Hills Office Services, Inc., 345 NLRB No. 107 (2005). 

10 Holling Press, Inc., 343 NLRB No. 45 (2004). The dissent noted that the majority’s reasoning confronted unequivocal precedent to the contrary, i.e., NLRB v. Peter Cailler Kohler 

Swiss Chocolate Co., 130 F.2d 503 (2d Cir. 1942) (per Hand, J.) cited as authority in NLRB v. 

J. Weingarten, Inc., 420 U.S. 251 (1975). The majority responded to this criticism by ignoring 

these precedents. 11See generally Matthew Finkin, Disloyalty! Does Jefferson Standard Stalk Still?, 28 BERK. 

J. EMP. & LAB. L. 541 (2007). 12Five Star Transp. Inc., 349 NLRB No. 8 (2007). 13See, e.g., Petrochem Insulation v. NLRB, 240 F.3d 26 (D.C. Cir. 2001). To similar effect, 

see Wurtland Nursing & Rehab. Center, 351 NLRB No. 50 (2007), in which the Board held that 

a petition signed by over half the employees stating their ‘‘wish for a vote to remove the [incumbent] Union’’ justified the employer’s withdrawal of recognition of the union. The Board majority 

acknowledged that under well established precedent the demand for an election would not be 

sufficient to justify withdrawal; but here the demand was conjoined with a desire to remove the 

union—and that, the Board maintained, was dispositive. Why it should be so is not explained—

for what would a demanded vote be about if not to remove the union? 14 351 NLRB No. 29 (2007). 15Sheet Metal Workers’ v. NLRB, 491 F.3d 429 (D.C. Cir. 2007); Overstreet v. United Brotherhood of Carpenters, 409 F.3d 1199 (9th Cir. 2005). 16Susan McGolrick, Battista Says NLRB Did ‘‘Very Credible Job’’ of Meeting Goals During 

His Five-Year Term, DAILY LABOR REPORT No. 218 (Nov. 13, 2007). 17Toering Electric Co., 351 NLRB No. 18 (2007) discussed further in the text accompanying 

notes 29—30, infra. 18 NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 786 (1990) (‘‘This Court has emphasized often that the NLRB has the primary responsibility for developing and applying national 

labor policy.’’ (citing Beth Israel Hosp. v. NLRB, 437 U.S. 483, 500—01 (1978); NLRB v. Erie 

Resistor Corp., 373 U.S. 221, 236 (1963); NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957)). In 

Beth Israel Hospital the Court states: 

Because it is to the Board that Congress entrusted the task of ‘‘applying the Act’s general 

prohibitory language in the light of the infinite combinations of events which might be charged 

as violative of its terms,’’ that body, if it is to accomplish the task which Congress set of it, necessarily must have authority to formulate rules to fill the interstices of the broad statutory provisions. 

Beth Israel Hosp., supra, at 500—01 (quoting Republic Aviation Corp. v. NLRB, 324 U.S. 793, 

798 (1945)). In Curtin Mathenson Scientific, the Court declared: 

94

This Court therefore has accorded Board rules considerable deference. See Fall River Dyeing 

& Finishing Corp. v. NLRB, 482 U.S. 27, 42 (1987); NLRB v. Iron Workers, 482 U.S. 335, 350 

(1978). We will uphold a Board rule as long as it is rational and consistent with the Act, Fall 

River, supra, at 42, even if we would have formulated a different rule had we sat on the Board, 

Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404, 413, 418 (1982). Furthermore, 

a Board rules is entitled to deference even if it represents a departure from the Board’s prior 

policy. See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 265—66 (1975) (‘‘The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board’s earlier 

decisions froze the development of this important aspect of the national labor law would misconceive the nature of administrative decisionmaking.’’) Accord, Iron Workers, supra, at 351. 

Curtin Mathenson, supra, at 786—87 (internal citations abbreviated) (emphasis added). 

19 Cf. Peter L. Strauss, On Resegregating the Worlds of Statute and Common Law, 1994 SUP. 

CT. REV. 429, 495 (‘‘It is not merely the largeness of the change being effected, but also that 

accepting it will entail accepting that an agency can be empowered to change its mandate.’’). 20 29 U.S.C. § 151 (2000). 21 Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 

1935—2000, 61 OHIO ST. L. REV. 1363 (2000). 22 Bernard Meltzer, Organizational Picketing and the NLRB: Five on a Seesaw, 30 U. CHI. 

L. REV. 78, 78 (1962). 23Flynn, supra note 21, at 1384. 24 Compare Terry Bethel, Recent Decisions of the NLRB—The Reagan Influence, 60 IND. L.J. 

227 (1984) with Lee Modjiska, The Reagan NLRB, Phase I, 46 OHIO ST. L.J. 95 (1985). 25Kevin Burkett, The Politicization of the Ontario Labour Relations Framework in the 1990s, 

6 CANADIAN LAB. & EMP. L.J. 161 (1998). 26 James Brudney, Isolated and Politicized: The NLRB’s Uncertain Future, 26 COMP. LAB. 

L. & POL’Y J. 221 (2005). 27Supra note 3. 28 Id. 29Toering Electric Co., supra note 6. The characterization was made in the context of his stating that the Board does not serve its intended statutory role as neutral arbiter of disputes if 

it must litigate hiring discrimination charges filed on behalf of disingenuous applicants who intend no service and loyalty to a common enterprise with a targeted employer. [Emphasis added.] 

The Board also rejected any analogy to Title VII which is sometimes vindicated by ‘‘testers’’ 

who have no actual interest in the job. ‘‘Hiring discrimination under the [Labor] Act simply cannot occur unless the individual actually was seeking an employment opportunity with the employer.’’

This makes two fundamental mistakes. First, the Board’s prosecutorial function is instigated 

by any person, including a morally repugnant person; it does not require that the charging party 

be injured in any way. The Board acts on the public’s behalf, not on behalf of the charging party 

even if morally miscreant. Second, it is quite possible for an employer to maintain a policy or 

practice of discrimination in hire without there being an identifiable discriminatee, just as it 

is possible for an employer to have a policy against the hiring of women or minorities without 

the EEOC being able to identify an individual discriminatee. Consequently, Toering Electric Co. 

would hinder the General Counsel’s ability to pursue § 8(a)(1) complaints where testers have 

revealed an anti-union hiring policy that no disappointed applicant has been found to complain 

of. 30 Clyde Summers, Politics, Policy Making, and the NLRB, 6 SYR. L. REV. 92, 97 (1954). 31 Id. at 101. 32 Id. at 100. 33 Id. at 101. 34 Id. at 102: 

Section 1 of Taft-Hartley, like the Wagner Act before it, finds that ‘‘protection by law of the 

right of employees to organize and bargain collectively safeguards commerce from injury,’’ and 

declares it ‘‘to be the policy of the United States to eliminate the causes of certain substantial 

obstructions from commerce * * * by encouraging the practice and procedure of full freedom of 

association.’’ Section 7 still guarantees the ‘‘Right to self organization * * * to bargain collectively through representatives of their own choosing.’’ 35 Id. at 103, (quoting NLRB Chairman Farmer, ‘‘We intend to make a fetish of impartiality.’’). 36DEREK BOK & JOHN DUNLOP, LABOR AND THE AMERICAN COMMUNITY 25 (1970) 

(references omitted): 

Despite the determined campaigns by many managements to keep labor unions out of their 

plants, businessmen do not proclaim hostility toward the principle of unionism. Quite the contrary. If anything, executives are slightly more inclined than is the public as a whole to accept 

the legitimacy of unions and the employee’s right to join the organization of his choice. * * *

In part this attitude may reflect the strong belief among businessmen in individual freedom 

and the right to associate for lawful purposes. But many executives now concede, as they rarely 

did several decades ago, that unions can play a valuable role in protecting employees against 

abuses. To quote Lemuel Boulware, of General Electric, a management representative renowed 

for developing a ‘‘hard line’’ toward unions: 

We believe in the union idea. We think unions are here to stay. We think some among even 

the best of employers might occasionally fall into short-sighted or careless employee practices 

if it were not for the presence or distant threat of unions. 37 E.g., Note, for example, the data set out below:

95

ANNUAL GROWTH IN U.S. PRODUCTIVITY AND WAGE LEVELS 

[1967–2002; Percentile] 

Year Annual Productivity Growth Average Annual Wage Growth 

1967–73 .......................................................................................... 2.5 2.5

1973–79 .......................................................................................... 1.2 0.1

1979–89 .......................................................................................... 1.4 0.9

1989–95 .......................................................................................... 1.5 0.5

1995–2000 ...................................................................................... 2.5 2.4

2000–02 .......................................................................................... 3.6 –0.3

Source: Lawrence Michel, Jared Bernstein & Sylvia Allegretto, The State of Working America 2004/05, tbl. 2.1 (2005). 

38Matthew Finkin, Bearing the Burden of Decisions Made by Others: The Corporate Reallocation of Employee Risk in the United States, in PERSPEKTIVEN DER CORPORATE GOVERNANCE 501 (Ulrich Jurgens et al. eds., 2007). 39 RICHARD BLOCK, JOHN BECK & DANIEL KRUGER, LABOR LAW, INDUSTRIAL RELATIONS AND EMPLOYEE CHOICE (1996). When the Canadian industrialist, Frank Stonach, 

urged his 18,000 employees to join the Canadian Auto Workers Union, the event was news-making. Ian Austen, Industrialist Urges Workers to Join Union, N.Y. TIMES, Oct. 16, 2007, at C10. 40Most recently, THOMAS KOCHAN, RESTORING THE AMERICAN DREAM: A WORKING 

FAMILIES’ AGENDA FOR AMERICA (2006). See also PAUL OSTERMAN, SECURING PROSPERITY: THE AMERICAN LABOR MARKET HOW IT HAS CHANGED AND WHAT TO DO 

ABOUT IT (1999). 41 Among the more recent and thoughtful are Stephen Befort, Labor and Employment Law 

at the Millennium: A Historical Review and Critical Assessment, 63 B.C. L. REV. 351 (2002) 

and Charles Carver, The National Labor Relations Act Must Be Revised to Preserve Industrial 

Democracy, 34 ARIZ. L. REV. 397 (1992); collections of papers in THE LEGAL FUTURE OF 

EMPLOYEE REPRESENTATION (Matthew Finkin ed., 1994); RESTORING THE PROMISE 

OF AMERICAN LABOR LAW (Sheldon Friedman et al. eds., 1994); and the earlier work of Paul 

Weiler summarized in his GOVERNING THE WORKPLACE (1990). As these remarks were 

being written I was informed that a petition was being drafted by Professors James Brudney 

and Cynthia Estlund to be circulated to the academic labor law community and presented to 

the Congress. I expect that their summary of the current state of affairs and their call for legislative reform would be concordant with the views expressed here. 42 I doubt the Board was correct in holding the artists’ models of the Pennsylvania Academy 

of Fine Arts to be ineligible to bargain collectively. Pennsylvania Academy of Fine Arts, 343 

NLRB No. 93 (2004). But surely something is fundamentally amiss when that question turns 

on whether they supply their own loin cloths and have discretion on how to position their arms. 

Id. 43 RICHARD FREEMAN & JOEL ROGERS, WHAT WORKERS WANT 178—79 (2006). This 

rises to 31% if the word ‘‘union’’ is omitted and respondents are asked if they want to be represented by an independent employee organization that negotiates with their employers. 44This is explored by Michael Gottesman, Rethinking Labor Law Preemption: State Laws Facilitating Unionization, 7 YALE J. ON REG. 355 (1990). 45 In FY2006, on average it took over two years for the Board to dispose of contested unfair 

labor practice cases. 46Over thirty years ago, the Committee on Labor and Social Security Legislation of the Association of the Bar of the City of New York, composed of leading practitioners on both the labor 

and management sides as well as academics, and chaired by one of the country’s most prominent labor arbitrators, recommended the greater utilization of section 10(j) injunctions and the 

strengthening of the remedial power of the Board ‘‘especially with respect to discriminatory discharge and refusal to bargain’’ by authorizing the Board to impose civil money penalties. Committee Report, National Labor Relations Board Remedies: 10(j) Injunctions, Make-Whole Orders 

and Civil Monetary Penalties, 29 THE RECORD OF THE ASSOCIATION OF THE BAR OF 

THE CITY OF NEW YORK 674, 686 (1974). That was thirty-three years ago and the committee’s proposals remain as immanently sensible and even more urgently needed today. 

Chairman ANDREWS. Thank you very much, Professor. We appreciate that. 

Ms. Ryland, welcome to the committee. You are recognized. 

STATEMENT OF FELIZA RYLAND, HOUSEKEEPER, OLD STAR 

RESORT 

Ms. RYLAND. Good morning, committee chair. I apologize if I 

don’t pronounce everybody’s name. And my name is Feliza Ryland. 

Today I think I have my testimony, and I work as a housekeeper 

at the Old Star Resort at Disney World in Orlando, Florida. But 

96

for 12 years since 1984 until 1996, I worked as a room attendant 

at the Grosvenor Resort. 

I thank you for this opportunity to bring my testimony to all of 

you about what happened, you know, when my coworkers and I 

tried to—I am sorry about that—win a fair deal at work. More of 

the point is what did happen. 

I complained to the National Labor Relation Board. Our case, the 

Grosvenor Resort is a matter of public record. More than 11 years 

ago we had a problem with our employer on September 27, 1996 

after many months of fighting for a fair contract and getting nowhere, my coworkers and I went out on unfair labor practice strike 

and began picketing to protest our employer’s refusal to bargain in 

good faith. 

Just a few days later on September 30th, 44 of us were fired. We 

continued picketing to protest the firing and get our jobs back and 

get a fair deal in our contract. It takes a lot of you to walk out. 

But after several weeks, it became clear that the hotel was refusing to rehire us. And it was a hardship to go so many weeks without a paycheck or benefits. 

I needed that paycheck, that income for my family. So most of 

us looked and found a new job. 

I applied and soon found work at another hotel. Then about 8 

weeks after that, went to work for Disney. 

Government records showed what happened to our complaints 

about our employer’s unfair labor practice. In 1988, the judge 

agreed our employee had acted in bad faith in illegally firing us 

and ordered management to offer us our jobs back and to give us 

back pay. I did not receive any back pay. 

In 2001, 5 years after the illegal firing, the NLRB agreed with 

the judge and ordered the same thing. I did not receive any back 

pay. 

In 2002, a federal court enforced the NLRB’s decision. I did not 

receive any back pay still. 

In 2005, the judge held back pay hearing and ordered Grosvenor 

to pay me $10,000 in back pay. I did not receive any back pay. 

In September 2007, the NLRB issued a decision reducing my 

back pay by about $2,400 because, according to them, I didn’t leave 

the picket line and get a new job fast enough. That is my case. And 

my other coworker—according to them, he is not eligible to get anything, not a single penny because he went too quick to work and 

makes too much money. So he doesn’t qualify to receive any benefits. 

It has now been more than 11 years since I was unlawfully fired. 

And I am still waiting to see the back pay, still waiting to see the 

justice. 

This is wrong. Workers who are fired for trying to organize and 

bargain for a better life have been mistreated for exercising their 

rights. It should not take so long to get justice. 

And the government should be protecting workers, not punishing 

them for exercising their rights. Because that is how I feel at this 

moment, to be punished for what I have done and the employer—

they are taking their side. 

I don’t know if I will ever see that back pay. It all happened so 

long ago. It doesn’t feel quite real, but I still hope that bringing our 

97

complaints to the government might help some of my fellow workers in the future by making employers treat their employees more 

fairly. For that to happen, my government needs to do a lot better 

and a lot more. 

Thank you very much for the chance to be here today. And I will 

be happy to answer any questions to the best of my knowledge. 

Thank you. 

Chairman ANDREWS. Thank you, Ms. Ryland, very, very much for 

your excellent statement. Very well done. 

Ms. RYLAND. Thank you. 

[The statement of Ms. Ryland follows:]

Prepared Statement of Feliza Ryland, Member, UNITE HERE 

Good Morning, Chairman Kennedy, Chairman Miller, Subcommittee Chairs Murray and Andrews, and Members of the Subcommittees. My name is Feliza Ryland, 

and I am a proud member of UNITE HERE. Today, I work as a housekeeper at the 

Old Star Resort, a Disney hotel at Disney World in Orlando, Florida, but for twelve 

years, from 1984 until 1996, I worked as a room attendant at the Grosvenor Resort 

hotel. I thank you for this opportunity to tell the Subcommittees about what happened when my coworkers and I tried to win a fair deal at work, and what happened—or more to the point what did not happen—with our complaints to the National Labor Relations Board. 

Our case, The Grosvenor Resort, is a matter of public record. More than 11 years 

ago we had problems with our employer. On September 27, 1996, after many 

months of fighting for a fair contract and getting nowhere, my coworkers and I went 

out on an unfair labor practices strike and began picketing to protest our employer’s 

refusal to bargain in good faith. I was a shop steward, so I knew our rights. 

Just a few days later, on September 30, 44 of us were fired. We continued picketing everyday, to protest the firings, get our jobs back, and get a fair deal in our 

contract. It takes a lot out of you. But after several weeks, it became clear that the 

hotel was refusing to rehire us, and it was a hardship to go so many weeks without 

a paycheck or benefits. I needed that paycheck, that income for my family. So most 

of us looked for and found new jobs. I applied for and soon found work at another 

hotel, then about eight weeks after that, went to work for Disney. 

Government records show what happened to our complaints about our employer’s 

unfair labor practices: 

• In 1998, the judge agreed our employer had acted in bad faith and illegally fired 

us. It ordered management to offer us our jobs back, and to give us backpay. I did 

not receive any backpay. 

• In 2001, five years after the illegal firings, the NLRB agreed with the judge and 

ordered the same thing. I did not receive any backpay. 

• In 2002, a federal court enforced the NLRB decision. I did not receive any backpay. 

• In 2005, the judge held backpay hearings, and ordered Grosvenor to pay me 

about $10,000 in backpay. I did not receive any backpay. 

• In September, 2007, the NLRB issued a decision reducing my backpay by about 

$2,400, because according to them, I didn’t leave the picket line and get a new job 

fast enough. 

It has now been more than 11 years since I was unlawfully fired, and I am still 

waiting to see the backpay, still waiting to see justice. 

This is wrong. Workers who are fired for trying to organize and bargain for a better life have been mistreated for exercising their rights. It should not take so long 

to get justice. And the government should be protecting workers, not punishing 

them for exercising their rights under the law. It is wrong for me to be penalized 

for exercising my rights while my employer, who broke the law, is rewarded. Requiring a worker who has been fired to look for a new job instantly, without trying to 

get their job back, is like surrendering without a protest, without a fight. It is like 

having no rights in the first place. 

I don’t know if I will ever see that backpay—it all happened so long ago, it doesn’t 

feel quite real—but I still hope that bringing our complaints to the government 

might help some of my fellow workers in the future by making employers treat their 

employees more fairly. For that to happen, my government needs to do a lot better. 

Thank you again for the chance to be here today, and I will be happy to answer 

any questions you may have. 

98

Chairman ANDREWS. Mr. Cohen, welcome back to the committee. 

It is good to see you. 

STATEMENT OF CHARLES COHEN, PARTNER, MORGAN, LEWIS 

AND BOCKIUS, LLP, FORMER MEMBER, NATIONAL LABOR 

RELATIONS BOARD 

Mr. COHEN. Thank you very much, Mr. Chairman. And thank 

you very much for the kind introduction. 

Mr. Chairman and Ranking Member Kline, I appreciate the opportunity to be here and to testify today. I might note that in my 

background also immediately after law school, I worked at the National Labor Relations Board for 9 years in numerous capacities 

and had the privilege of holding elections, investing unfair labor 

practice cases, trying unfair labor practice cases, et cetera. It was 

invaluable experience to me. 

Of course, I am not currently a board member and have not had 

occasion to study the arguments in the records and the cases currently under scrutiny. I, therefore, do not know how I might have 

voted on any particular case. What I hope to add to this hearing 

is perspective on the board’s decision-making processes and on how 

it is that we have reached this juncture where the rhetoric has gotten, in my estimation, out of proportion. 

At the outset, I think it is important to note that concerns expressed by organized labor over NLRB decision-making are not 

new. In the 1980s, unions similarly complained about decisions 

issued by boards composed of a majority of Republican nominated 

members. Organized labor claimed that the board’s decisions led to 

the destruction of well-established employee rights. 

Likewise, in the 1990s, it was business that complained about 

the pro-union tilt of the decisions of the majority Democratic nominated members. Based on my decades of experience in this field, 

I do not believe that the board’s recent decisions constitute the sea 

of change that has been claimed. 

Reversals of precedent are, indeed, destabilizing. But that has 

not become more common in recent times. 

Recognizing that this board is more conservative than the Clinton board, it has carried out its responsibilities in a manner consistent with the established practice over the last few decades. Further, the board’s decisions have continued to hold true to the intent 

of the act. 

I believe the notion that the board issued an extraordinary numbers of decisions in September designed to punish unions has been 

sufficiently debunked, and I won’t spend any additional time on it. 

By far, the most significant decision in the September grouping is 

Dana Metaldyne. This is an illustration of the board reacting to a 

very significant change in union organizing, card check, and neutrality agreements. 

Dana Metaldyne did not proscribe voluntary recognition of 

unions. It did not prohibit employer and the union from bargaining 

while individuals are waiting for an NLRB secret ballot election. 

While some might quibble over the need for and the wording of the 

notice that the NLRB has prescribed, it is certainly true that this 

procedure provides a mechanism for employee free choice by a govVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00104 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
99

ernment-conducted secret ballot election if the employees then petition the NLRB and ask for that election. 

This concludes my prepared oral testimony. I look forward to any 

questions you might have. 

[The statement of Mr. Cohen follows:]

Prepared Statement of Charles I. Cohen, Partner, Morgan,

Lewis & Bockius LLP 

Chairwoman Murray, Ranking Member Isakson, Chairman Andrews and Ranking 

Member Kline, and Members of the Subcommittees, I am pleased and honored to 

be here today. Thank you for your kind invitation. 

By way of introduction, I was appointed by President Clinton, confirmed by the 

Senate, and served as a Member of the National Labor Relations Board from March 

1994 until my term expired in August 1996. Before becoming a Member of the 

Board, I worked for the NLRB in various capacities from 1971 to 1979 and as a 

labor lawyer representing management in private practice from 1979 to 1994. Since 

leaving the Board in 1996, I have returned to private practice and I am a Partner 

in the firm of Morgan, Lewis & Bockius LLP. I am a member of the Labor Relations 

Committee of the U.S. Chamber of Commerce, and Chair of its NLRB subcommittee. 

I am testifying today in my personal capacity. 

As I understand it, the purpose of today’s hearing is to provide a forum to examine certain recent Board decisions and organized labor’s concerns that these decisions have adversely impacted employees’ rights. 

Of course, I am not currently a Board member and have not had occasion to study 

the arguments and the records in the cases currently under scrutiny. I, therefore, 

do not know how I might have voted on any particular case. What I hope to add 

to this hearing is perspective on the Board’s decision-making processes and on how 

it is that we have reached this juncture where the rhetoric has gotten, in my estimation, out of proportion. 

At the outset, I think it is important to note that concerns expressed by organized 

labor over NLRB decision-making are not new. In the 1980’s, unions similarly complained about decisions issued by Boards comprised of a majority of Republicannominated members. Organized labor claimed that the Board’s decisions led to the 

destruction of well-established employee rights. Likewise, in the 1990’s, it was business that complained about the pro-union tilt of the decisions of the majority Democrat-nominated members. In fact, a serious attempt was made to severely diminish 

the budget of the NLRB. 

The National Labor Relations Act, as amended, includes two competing principles 

which invite considerable tension. Employees have the right to organize and to engage in collective bargaining. Once a union has been freely chosen, the practice and 

procedure of collective bargaining is to be encouraged. But, since 1947, employees 

also have had the right to refrain from union or concerted activities. This additional 

right puts a premium on how unions come to be recognized as the exclusive representative of all bargaining unit employees—whether they want a union or not. 

Based on my decades of experience in this field, I do not believe that the Board’s 

recent decisions constitute the sea change claimed by unions. Reversals of precedent 

are destabilizing, but that has not become more common in recent times. Recognizing that this Board is more conservative than the Clinton Board, it has carried 

out its responsibilities in a manner consistent with the established practice over the 

last few decades. Further, the Board’s decisions have continued to hold true to the 

intent of the Act. 

The NLRB’s Operation, Practice and Procedure 

Organized labor has taken issue with the number of decisions issued by the Board 

in September 2007. The unions seem to suggest that the issuance of 61 September 

2007 decisions is evidence of an attempt by certain Republican-nominated Board 

members to rush to issue business-friendly decisions. In reality, the number of September decisions was not extraordinary and largely is attributable to such benign 

factors as the Board’s decision-making processes, the close of the Board’s fiscal year, 

and the possible near term loss of three Board members. 

The Board, like all federal government entities, operates on a fiscal year basis, 

which ends on September 30 of each year. Traditionally, the Board sets goals at the 

beginning of the year for the number of cases it hopes to decide in any given year. 

Although the Board has the entire year to issue decisions, the most significant 

amount of activity often occurs at the end of the fiscal year, in a final push to meet 

the previously established goals. Cases posing relatively routine issues are decided 

100

and released sooner. Difficult and older cases take longer simply because they are 

more difficult. Thus, the frenzy of activity at the end of the fiscal year in September 

is not unusual. This Board has issued more than 100 decisions in three of the four 

previous Septembers. Nor is it unique to Republican-majority Boards. For example, 

a Democratic-majority Board issued approximately 70 decisions in September 1999 

and approximately 68 decisions in September 2000. 

The potential loss of three Board members, in the near future, also may have influenced the Board’s September productivity. As you know, at its full complement, 

the Board is comprised of five members. Being at full strength—which does not 

occur as frequently as it should given the difficulties in the nomination and confirmation process—aids the orderly issuance of decisions. New Board members typically take an extended period of time before they issue decisions in difficult cases. 

The term of Chairman Battista expires on December 16, 2007, and Members 

Kirsanow and Walsh are currently serving recess appointments that will expire 

when this session of Congress adjourns. It is prudent, therefore, to seek to issue as 

many decisions as possible while still at full strength. 

The Board’s Alleged Destruction of Employees’ Rights 

Organized labor has complained that the Bush Board has issued an inordinate 

number of reversals of prior Board decisions. The unions contend that these reversals disproportionately favor employers to the disadvantage of employees. As I stated before, reversals of precedent are troubling. The number of reversals, however, 

is not extraordinary. Under the Clinton Board, for example, the Democratic-majority 

reversed more than 50 prior Board decisions compared with the less than 25 reversals issued by the Bush Board. 

Organized labor also has directed its complaints at the merits of the Board’s recent decisions, claiming that these decisions favor employers and not employees—

or better said, favor employers and not unions. Again, this is not necessarily the 

case. Rather, these decisions tend to be, with one important exception, extensions 

of well-established labor law principles formed long before the Bush Board took control. 

The Board’s Decision in Dana Corp. and Metaldyne Corp. 

By far, the most significant decision of the group is the Board’s recent decision 

in Dana Corp. and Metaldyne Corp., 351 NLRB No. 28 (September 29, 2007). In this 

case, a 3-2 majority of the Board modified its recognition-bar doctrine and held that 

an employer’s voluntary recognition of a union does not bar a decertification election 

petition or rival union election petition filed within 45-days of a notice of recognition. Previously, the Board had held that voluntary recognition barred a decertification election petition or a rival union’s election petition for a ‘‘reasonable period of 

time’’—in reality, a one year period. Although this holding is a change in a highly 

technical area of the law, some background is necessary. 

Historically, voluntary recognition by an employer of a union has been lawful, but 

organizing had not been a top down process emanating from employer agreements. 

This changed in the last decade as a result of unions pressuring for, and often receiving, card check and neutrality agreements. Indeed, one of the highest priorities 

of unions today is to obtain agreements from employers that would allow the union 

to become the exclusive bargaining representative of a group of employees without 

there ever being an NLRB-supervised election. As a consequence, the Board’s relevance through its traditional role of conducting secret ballot elections has been on 

the wane. See Charles I Cohen, Neutrality Agreements: Will the NLRB Sanction Its 

Own Obsolescence?, The Labor Lawyer (Fall 2000); Charles I. Cohen & Jonathan 

C. Fritts, The Developing Law of Neutrality Agreements, Labor Law Journal (Winter 2003); Charles I. Cohen, Joseph E. Santucci, Jr., & Jonathan C. Fritts, Resisting 

Its Own Obsolescence—How the National Labor Relations Board Is Questioning the 

Existing Law of Neutrality Agreements, 20 Notre Dame Journal of Law, Ethics & 

Public Policy 521 (2006), available at http://www.morganlewis.com/pubs/

NotreDameJournalResistingObsolescence.pdf. Despite considerable rhetoric to the 

contrary, it is the view of the Supreme Court, and my own personal view as well, 

that Board-conducted secret ballot elections remain the most reliable indicator of 

employee choice. Against this backdrop comes the Dana Corp./Metaldyne Corp. case. 

As another preliminary matter, it is important to note what the Board’s decision 

in Dana Corp./Metaldyne Corp. did not do. It did not proscribe voluntary recognition 

of unions. And, it did not prohibit immediate bargaining between the employer and 

the voluntarily recognized union. 

In determining that a 45-day window was appropriate for the filing of competing 

petitions, the Board majority found that an immediate insulation period for employees seeking to have an election was not necessary when an employer voluntarily recVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
101

ognized a union. During this 45-day time period, employees can decide whether they 

prefer to participate in a Board-conducted election, instead of relying on the voluntary recognition alone. Ultimately, the Board concluded that the recognition bar 

doctrine did not provide sufficient protection for employees’ right to a free choice of 

a representative—or no representative. As a result of this decision, for the recognition and contract bars to be effective, employers must now notify the Board in writing of any voluntary recognition, receive an official Board notice, and post it for the 

45-days. While some might quibble over the need for, and the wording of, the notice, 

it is certainly true that this procedure provides a mechanism for employee choice 

on this issue. 

It is beyond the scope of this testimony to re-argue the merits of the Employee 

Free Choice Act—which failed to pass Congress earlier this year. See Charles I. 

Cohen, Statement on ‘‘Employee Free Choice Act: ‘Strengthening America’s Middle 

Class Through the Employee Free Choice Act,’’ before the House Committee on Education and Labor: Subcommittee on Health, Employment, Labor, and Pensions (Feb. 

8, 2007). But the irony is nonetheless present. At a time when a major push was 

made to eliminate secret ballot elections, the Board has reaffirmed the importance 

of those elections. 

Regardless of one’s view of the wisdom of the Board’s Dana Corp./Metaldyne Corp. 

decision, it would be a mistake to brand it pro-employer. The decision did not prohibit voluntary recognition agreements; it merely guaranteed employees the right to 

a secret ballot election to overturn those agreements. Unions and employers are still 

free to reach these agreements and engage in collective bargaining absent an employee vote to the contrary. Some employers support voluntary recognition agreements and are disappointed by the Board’s decision to deny bar quality unless they 

comply with the posting requirements. In any event, it is important to recognize 

that Section 7 rights belong exclusively to employees—not to unions or employers. 

Other Decisions 

From the outcry over the September 2007 decisions, one would think that the 

Board that the Board issued 61 anti-union decisions. This is not the case. In fact, 

in a majority of the unfair labor practice decisions issued in September, the Board 

found at least one violation of the Act by the employer involved. 

Lost in the labor criticism of the Board is a significant pro-union decision issued 

in August 2007. The Board’s decision in Provena Hospitals, 350 NLRB No. 64 (Aug. 

16, 2007) is important to employers whose employees are already represented by a 

union. There, the Board continued to disregard the decisions of the Court of Appeals 

for the District of Columbia and the Seventh Circuits that require use of the ‘‘contract coverage standard,’’ and instead continued to apply its unworkable ‘‘clear and 

unmistakable waiver’’ standard. Chicago Tribune Co. v. NLRB, 974 F.2d 933 (7th 

Cir. 1992); Dept.of the Navy v. FLRA, 962 F.2d 48 (D.C. Cir. 1992); and NLRB v. 

United States Postal Service, 8 F.3d 832 (D.C. Cir. 1993). Simply stated, this issue 

relates to whether a collective bargaining agreement must ‘‘clearly and unmistakably waive’’ a union’s right, or whether the employer, having bargained a contract, 

can argue that the language in the collective bargaining agreement demonstrates 

that the parties have bargained about a subject and have a subsequent dispute resolved by an arbitrator. It is well accepted that the ‘‘contract coverage’’ standard is 

an easier burden for employers to meet. Yet, notwithstanding the clear opportunity 

to make a favorable change for employers, the Bush Board notably declined to adopt 

this change. 

In another recent decision, Kravis Center for the Performing Arts, 351 NLRB No. 

19 (Sept. 28, 2007), the Board reached another pro-union outcome. In Kravis, the 

Board relied on the U.S. Supreme Court’s decision in NLRB v. Fin. Inst. Emp. of 

Am., Local 1182 (Seattle-First), 475 U.S. 192 (1986), and concluded that a lack of 

a vote by union members to be represented by a successor union did not alleviate 

the employer’s duty to bargain with the union. Applying the new Seattle-First 

standard, the Board determined that a union merger or affiliation does not have to 

be approved by a vote and the lack of a vote does not create a question concerning 

representation sufficient to support a withdrawal of recognition. Given the fact that 

union mergers have become commonplace these days, this is a significant case. 

Conclusion 

This concludes my prepared oral testimony. I look forward to any questions you 

might have, but before that, I would again like to thank the Subcommittee for inviting me here today. 

Chairman ANDREWS. Thank you, Mr. Cohen. 

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Mr. Hiatt, welcome to the committee. It is good to have you here. 

STATEMENT OF JONATHAN HIATT, GENERAL COUNSEL,

AFL–CIO 

Mr. HIATT. Thank you very much, chairs and members of the 

subcommittees. In my written testimony, I tried to show why the 

Bush administration’s stripping of worker protections over the past 

several years with its latest decisions in September doesn’t simply 

reflect the proverbial swing of the pendulum that at times in the 

past has characterized NLRB case law from one administration to 

the next. So I would like to use my time now to offer just a few 

examples of what the impact of these cases is likely to be on the 

ground among the workers. 

Let me start with the Dana case and the board’s rewriting of the 

rules on voluntary recognition, which, as you know, has been on 

the books since the law was enacted and has until now been viewed 

by the board and the courts as a perfectly acceptable alternative 

to NLRB certification. Indeed, in 2003, Chairman Battista himself 

stated in a case called Terracon that Senator Kennedy referred to 

that its holding in that case was consistent with the board’s established objective of promoting voluntary recognition in order to effectuate the act’s purpose of promoting collective bargaining. 

Because the board’s election procedures have become so 

confrontational, so easily manipulated by any well-advised employer, and so delay-ridden, more and more unions and workers 

have indeed been avoiding the board entirely and seeking voluntary recognition. This incidentally explains a good deal about 

Chairman Battista’s selective use of statistics. 

Little wonder that the board is closer to meeting its quotas on 

deciding cases when you consider the enormous reduction in both 

unfair labor practice cases and election cases that are brought to 

the board anymore. In any event, recognizing this trend and noting 

that workers were having increased success with the alternative 

means of achieving unionization, this board is now determined to 

make it as hard as possible to obtain union recognition, even where 

a union and employer and a majority of the workers are all in 

agreement. So much for the avowed philosophy of nongovernmental 

interference and deferral to private dispute resolution. 

Add to this the shameless hypocrisy when majority petitions or 

cards are described by the board in the Dana case as inherently 

unreliable, as susceptible to group pressure, as admittedly inferior 

to the election process when workers are trying to bring in a union, 

but then on the very same day are told by this same agency in the 

Wurtland case that none of these concerns—none of these are concerns when the question is getting rid of their union, that the signature method there constitutes ‘‘objective proof of the employees’ 

withdrawal of support for the union and that an NLRB election is 

not necessary.’’

And how do we explain why the government will now start posting notices informing a minority of the workforce of their rights to 

seek to undo the voluntary recognition and how to go about it without any corresponding posting of affirmative rights to join or form 

unions under the act? Mr. Cohen may call this quibbling. I suggest 

this will have a major impact. 

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As a second example, consider the area of remedy. It is already 

hard enough to give assurances to workers that if they stick their 

necks out in a union campaign and get fired for it, they will be reinstated with back pay. Reinstatement typically comes 2 to 3 years 

later and with an average, as Senator Kennedy said, of about 

$3,600 in back pay. 

But now after the board’s Grosvenor Resort’s and St. George 

Warehouse decisions, even these explanations are put in question. 

In the former, when workers were unlawfully fired and picketed for 

2 weeks in Ms. Ryland’s work place in order to get their jobs back, 

the board ruled that no back pay should be awarded for those 2 

weeks because to do so would be to reward idleness. 

And in the second case, the board has reversed decades of precedent and said that from now on the burden will be on the worker, 

that is the discrimination victim to prove adequate mitigation in 

seeking alternative employment in order to collect back pay. Until 

now the wrongdoer employer had the burden of showing that those 

efforts were not sufficient. 

Already one in four employers faced with union campaigns fire 

lead workers for the chilling effect that it has on other workers 

contemplating getting involved. What more incentive does the average employer now need to see this anti-union tactic as a miniscule 

cost of doing business, one that comes with the Bush board’s seal 

of approval? 

Finally, a third example of real world impact will be on workers’ 

rights to bargain collectively and strike when necessary. In Jones 

Plastic, the board has handed employers a roadmap to deny employment to returning strikers. In the past, it was well-settled that 

to be considered permanent replacements who would be allowed to 

continue working in place of strikers after a strike had ended there 

would have to be a mutual understanding ahead of time that the 

replacements were, in fact, permanent. 

With this new decision, the board has now declared that even if 

an at-will employee signed an agreement acknowledging that he or 

she can be terminated at any time with or without cause, they can 

still be considered permanent for purposes of denying reinstatement to returning strikers. Given Chairman Battista’s assertion 

that the act’s central purpose no longer calls for the board to facilitate employees’ opportunity to organize unions in order to promote 

collective bargaining, notwithstanding pronouncements directly to 

the contrary by the U.S. Supreme Court in the American Hospital 

Association v. NLRB case in 1991 and by numerous courts of appeal as well, it is sadly not surprising that this board has moved 

the law in a direction so hostile to worker rights. It is time, however, for Congress to step in and correct the course. 

Thank you very much. 

[The statement of Mr. Hiatt follows:]

Prepared Statement of Jonathan P. Hiatt, General Counsel, American 

Federation of Labor and Congress of Industrial Organizations (AFL–CIO) 

Chairmen and members of the subcommittees, thank you for inviting me to testify 

before your committees on the impact of recent decisions by the National Labor Relations Board on the working men and women of this country. 

My name is Jonathan Hiatt, and I am General Counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO), which is a volVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00109 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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untary federation of 55 national and international labor unions. Members of unions 

affiliated with the AFL–CIO teach and care for our children, build our country’s infrastructure and construct its skyscrapers, nurse us in hospitals and rehabilitation 

centers, drive the buses we travel on and the trucks that bring us food and other 

essentials, entertain us with music and Broadway shows, keep us safe in our communities and come to our rescue in emergencies, report our news, grow our food, 

take care of the planes—and us—when we fly to our destinations safely, expand our 

telecommunication capabilities, and provide our public services. The AFL–CIO was 

created in 1955 by the merger of the American Federation of Labor and the Congress of Industrial Organizations. 

Since its founding, the AFL–CIO and its affiliate unions have been the single 

most effective force in America for enabling working people and their families to 

build better lives and futures. The U.S. Census Bureau data shows that workers 

with unions still make on average 29% more than their non-union counterparts; 

they still have a 73% to 16% advantage in having access to a guaranteed employment based pension; they still have a 92% to 68% advantage over non-union workers in access to at least some employer-paid health insurance. It is widely recognized that giving workers the right to bargain collectively is the best way to establish and maintain a middle class—and that this is in the economic interests of society as a whole. For these reasons, the National Labor Relations Act (‘‘the Act’’) was 

enacted in 1935 to protect the rights of workers to form and join unions and bargain 

for better working conditions. 

Indeed, the explicit purpose of the Act is to ‘‘encourag[e] the practice and procedure of collective bargaining and * * * protect[] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own 

choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.’’ 29 U.S.C. §151. The Act further charges 

the Members of the National Labor Relations Board with adjudicating cases in accordance with this expressed policy. 

Meanwhile, however, the current Labor Board is no longer serving these noble 

goals. Shamefully, it has departed from its statutory responsibility and utterly abdicated its role as protector of worker rights. In decision after decision, the Board has 

denied workers the very protections it is supposed to guarantee. 

Since its installation in 2002, the Bush Administration’s Labor Board has embarked on a systematic and insidious effort to radically overhaul our federal labor 

law and its regulation of labor relations in the private sector. Its decisions are not 

merely a pendulum swing or a course correction at times characteristic of changes 

in political administrations. Rather, they evince a calculated effort to make fundamental changes to our nation’s national labor law—changes that it is aggressively 

accomplishing without any Congressional action whatsoever. 

In case after case, this Board has turned the Act on its head by narrowing its 

coverage, withdrawing its protections, and weakening its already ineffective remedies. These efforts attracted national attention in September of this year when the 

Board issued 61 decisions, approximately 20% of its annual total, most of which reflect a transparent anti-worker, anti-union and anti-collective bargaining bias, as 

described in the case summaries attached to my testimony. 

These September decisions were by no means the first time this Board has been 

accused of deciding cases in order to undermine workers’ rights. Noted labor scholar 

Theodore St. Antoine warned in 2005 that this Board was ‘‘resolving the doubts in 

borderline cases in the wrong direction’’ and voiced his concern that the ‘‘cumulative 

effect’’ is that ‘‘[a] multitude of smallish nibbles can add up to a large bite and eventually to a badly chewed—if not eviscerated—organism.’’1 His warning was echoed 

by Professor James J. Brudney, Moritz College of Law at Ohio State University, 

who observed that the Agency’s autonomy has ‘‘been associated not with making the 

NLRA effective or adaptable to changed circumstances but rather with the Act’s diminished relevance or applicability to the modern American workplace.’’2

Now, however, this Board’s rulings can no longer be described as ‘‘smallish nibbles.’’ Indeed, its decisions have significantly narrowed worker protections while expanding the scope of anti-union conduct lawfully available to management; seriously 

limited the Act’s coverage by directly and indirectly eliminating whole segments of 

the workforce from its definition of ‘‘employee;’’ and restricted its notoriously weak 

remedies by making it even less expensive and less burdensome for employers to 

violate the law. The bottom line is that fewer workers have fewer protections as this 

Board strips away the rights guaranteed by the National Labor Relations Act and 

squanders the national policies it enshrines. 

Through its decisions, this Board has redirected the course of the Act away from 

its original purposes of fostering workplace democracy and redressing economic inequality and, instead, toward a regulatory regimen that elevates the rights of emVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00110 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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ployers seeking to establish union-free workplaces over the rights of workers who 

want to have a voice on their job and a seat at the bargaining table. 

In September alone, in a number of highly divided, partisan decisions, dubbed the 

‘‘September massacre,’’ the Board has: • Made it significantly harder for workers who were illegally fired or denied employment to recover backpay. St. George Warehouse, 351 NLRB No. 42 (2007); The 

Grosvenor Resort, 351 NLRB No. 86 (2007); Domsey Trading Corp., 351 NLRB No. 

33 (2007) • Made it a certainty that employers who violate the Act will incur only the 

slightest monetary loss and be required to undertake as little remediation as possible. Intermet Stevensville, 351 NLRB No. 94 (2007); Albertson’s, Inc., 351 NLRB 

No. 21 (2007) • Made it harder for workers to achieve union recognition without being forced 

to endure the hostile, divisive, delay-ridden NLRB representation process, Dana 

Corporation, 351 NLRB No. 28 (2007), while at the same time doing just the opposite for employers who wish to get rid of an incumbent union. Wurtland Nursing 

& Rehabilitation Center, 351 NLRB No. 50 (2007) • Made it easier for employers to deny jobs to workers who have exercised their 

legal right to strike. Jones Plastics & Engineering, 351 NLRB No. 11 (2007) • Made it easier for employers to file lawsuits in retaliation for protected union 

activities and to punish workers and their unions for their lawful, protected conduct. 

BE&K Construction, 351 NLRB No. 29 (2007) 

• Made it easier for employers to discriminate against employees and job applicants who are also union organizers even though the U.S. Supreme Court has specifically held that such worker are employees entitled to the Act’s protections. 

Toering Electric Co., 351 NLRB No. 18 (2007); Oil Capital Sheet Metal, Inc., 349 

NLRB No. 118 (2007) 

These and other recent Board decisions attack the most fundamental aspects of 

workers’ rights under the Act. By overruling precedent, changing the rules, and 

misapplying existing precedent, this Board has made it considerably more difficult 

for workers to form unions and bargain collectively to improve their working conditions; has withdrawn basic protections from workers who seek to strike or engage 

in other protected activities with their co-workers; has excluded yet more workers 

from the Act’s coverage; has reduced its protections by giving employers more leeway to spy on, coerce and interfere with workers’ union activities while restricting 

workers’ ability to solicit union support; and has emboldened employers to violate 

workers’ rights by weakening the Act’s already miserably inadequate remedies. 

Undermining Worker Organizing 

This Board’s efforts to dismantle worker protections come at a time when the 

right to organize is more and more under attack and they further entrench the ‘‘culture of near-impunity that has taken shape in much of U.S. labor law and practice.’’3 The numbers paint a stark and compelling picture of what workers face when 

they try to form a union. During organizing campaigns, more than one-fourth of employers discharge workers for union activity; more than half threaten a full or partial shutdown of their company if the union effort succeeds; and between 15 and 40 

percent make illegal changes to wages, benefits, and working conditions, give bribes 

to those who oppose the union, and/or spy on union activists.4

As a direct result of this Board’s failure to protect workers’ participation in its 

representation process, unions have moved away from the NLRA’s delay-ridden procedures, with its endless opportunities for employer coercion and interference, in 

favor of voluntary recognition by employers.5 The Board’s response has been to take 

aim and fire. In the crosshairs is the decades-old practice of voluntary recognition,6

a path to unionization that has been approved by the both U.S. Supreme Court and 

Congress and that is ensconced in the very language of the Act.7 This effort to dismantle the voluntary recognition process has been advocated and funded almost exclusively by the National Right to Work Legal Defense Foundation; its goal is to 

force workers back to the Board if they want a voice on the job, mandating a procedure that manifestly does not work for workers—where employers control the process and where their intense, unrelenting resistance to organizing efforts is either 

condoned or, because of delay and weak remedies, effectively tolerated. 

On September 29 the Board stripped voluntary recognition of long-standing legal 

protections in a decision which punishes, rather than supports, private dispute resolution.8 In the Dana decision, the Board tosses out a decades-old rule that allows 

an employer and union, following voluntary recognition, a reasonable period of time 

to negotiate a collective bargaining agreement without challenge to the union’s majority status. Instead, the Board has crafted an entirely new set of rules which are 

triggered when an employer voluntarily agrees to honor the choice of its workers 

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for union representation. A mere 30% of the workforce can now override the expressed desire of the majority of the workers, sabotage the majority’s support for 

a union and force all workers into the NLRB’s bureaucratic, delay-ridden, and divisive representation process. A sharp dissent accused the majority of ‘‘cutting voluntary recognition off at the knees.’’9

In the Dana decision, the Board elevates the rights of a minority of workers who 

do not support a union over the rights of a majority of workers who do. Notification 

to the Board when voluntary recognition is granted is now required in order to secure a period of time to engage in collective bargaining without challenge to the 

union’s majority status—a period of time automatically granted to unions certified 

under the NLRB’s representation process. Notification that the workers’ union has 

been voluntarily recognized by their employer will trigger a mandatory NLRB notice 

posting at the workplace. This Notice to Employees requirement was first formulated in this decision, even though no party urged a government-issued notice. The 

notice that now must be posted in the workplace instructs employees on how 30% 

of them may file a petition for an election to undo the majority-supported recognition. 

This notice requirement follows the recent implementation of another required notice involving the NLRA. Also instituted during the Bush administration, it informs 

workers how to withdraw financial support from a union.10 That notice and the 

Dana notice are both aimed at informing workers of their rights to refrain from 

union activity. No mandatory NLRB Notice advises employees of their affirmative 

rights under the Act, except when an employer settles—or loses—an unfair labor 

practice case against it or during the 3-days prior to an NLRB conducted election 

when a notice detailing the polling locations and requirements must be posted.11

For the Board to require notices on how to refrain from unionization, while not 

requiring a corresponding posting of a workplace notice to inform workers of their 

rights to ‘‘join, form or assist’’ unions—rights specifically protected by Section 7 of 

the Act—is especially egregious in view of a pending petition filed with the Board 

by Charles Morris, Professor Emeritus of Law at Southern Methodist University. 

This petition, filed over 14 years ago and supported by the AFL–CIO, has yet to 

be acted upon. The petition requests that the Board craft a rule providing for the 

posting of notices in all workplaces subject to the jurisdiction of the Board to advise 

employees of their general rights under the Act—both their rights to participate and 

their rights to refrain from participating in union activity.12

The notice required by the Dana decision, informing employees of how to negate 

their co-workers’ choice to unionize, is novel in two other respects. It is the only required NLRB Notice which includes the location, address and phone number of the 

nearest NLRB office, a toll-free number for the NLRB, and the NLRB’s website address. And, shockingly, it does not even include the recitation of workers’ core rights 

under the Act, which is ‘‘boilerplate’’ language in the Board’s remedial and electionrelated notices. Rather, the formulation of the notice is yet another stunning example of this Board elevating the rights of workers who do not support a union over 

the rights of workers who do. 

As if its Dana decision were not transparent enough evidence of this Board’s outright bias, on the very same day that Dana case was decided the Board issued another case involving workers’ signatures, this time with the petition used to support 

an employer’s attempt to withdraw recognition from a union.13 A comparison of 

these two cases illustrates the Board’s grossly disparate and hypocritical treatment 

of employee rights. Shedding all pretense of scholarly analysis and legal precedent, 

the decisions are based simply on whether the outcomes favor forming or eliminating the union. 

In Dana, the union supported its majority status on the basis of cards signed by 

a majority of the workers. The Board attacked and criticized the signed cards for 

a whole host of reasons: card signing is a ‘‘public action, susceptible to group pressure. * * *;’’ ‘‘misrepresentations about the purpose for which the card will be used 

may go unchecked;’’ employees ‘‘may not even understand the consequences of voluntary recognition * * *;’’ ‘‘card signings take place over a protracted period of 

time;’’ and ‘‘[t]here are no guarantees of comparable safeguards [compared with an 

NLRB election], in the voluntary recognition process.’’

Meanwhile, however, not one of these concerns was raised by the Board in the 

companion case involving an employer’s efforts to get rid of a union. In Wurtland, 

even though a petition signed by a majority of workers stated that they wished ‘‘for 

a vote to remove the union,’’ the Board concluded that no election need be conducted 

because the ‘‘more reasonable interpretation’’ was that the workers wanted to remove their union, not that they wanted to vote to remove the union.’’14 Instead of 

challenging the legitimacy of the signed cards, as in Dana, the Board in Wurtland 

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ing any of the concerns that they claimed troubled them about the signatory employees in Dana. 

In Dana, when workers wanted to gain union representation, the Board held that 

the choice of a majority of workers for collective bargaining can be held hostage—

legally—by a small minority of anti-union workers while the NLRB’s representation 

process lumbers ponderously through its bureaucratic maze. Why? Because, according to the Board, although its election process ‘‘may result in substantial delay in 

a small minority of Board elections,’’ this is preferable ‘‘for resolving questions concerning representation.’’15 Yet in Wurtland, where the employer wanted to withdraw 

recognition, the Board expressed the opposite concern—that requiring an NLRB 

election would unduly prolong the time during which the union would remain the 

workers’ representative, i.e., ‘‘until the election results were certified, including any 

period required for the resolution of challenges and objections.’’16

And in another Board decision this past August where the employer wanted to 

withdraw recognition from a union on the basis of ‘‘slips’’ signed by workers, the 

Board never questioned the ‘‘comparable safeguards’’ of using signed slips to record 

worker sentiment; forgot all about its preference for elections to determine questions 

concerning representation; and suddenly worried that an election process would not 

yield a prompt result. Far worse was its fear that ‘‘employees will be forced to endure representation that they have unquestionably rejected.’’17 Could a rationale be 

more result-oriented? This case provides another astonishing example of the disparate rules this Board applies depending on whether the outcome of the case will 

result in employees selecting or rejecting union representation. 

Excluding Workers from the Act’s Protection 

Narrowing the Act’s protections and thwarting workers’ organizing efforts can be 

easily accomplished by simply excluding them from the Act’s protections altogether. 

And this Board has done exactly that. Decisions by this Board have overturned 

precedents to deny representation and bargaining rights to tens of thousands of the 

nation’s workforce who were previously covered, including teaching and research assistants,18 and, effectively, temporary employees working jointly for a supplier employer and a user client, unless both employers consent.19 Existing precedents have 

been artificially construed and applied in order to characterize workers as ‘‘non-employees,’’ ‘‘managers,’’ and ‘‘independent contractors’’ in order to exclude such categories as disabled individuals working as janitors,20 faculty members,21 artists’ 

models,22 and newspaper carriers and haulers.23

In a trilogy of cases with enormous impact, the Board radically expanded the statutory definition of ‘‘supervisor.’’24 This re-drawing of supervisory lines affects the 

continued organizing and collective bargaining rights of hundreds of thousands of 

professional, technical and skilled employees who rely on less highly trained or experienced personnel to help them accomplish their work.25 The impact of these cases 

is currently being debated in Congress through its consideration of the RESPECT 

Act which would eliminate the current ambiguity regarding supervisory status and 

ensure that thousands of workers are not denied their labor law rights by being 

wrongfully classified as supervisors.26

In its zeal to convert otherwise covered employees into ‘‘supervisors,’’ the Board 

sua sponte reconsidered an earlier decision involving a nurse at a long-term care 

facility in Missouri who was fired, according to her employer’s own admission, because she circulated a petition and solicited employee signatures to protest certain 

working conditions.27 Reclassifying the nurse as a supervisor, the Board thus withdrew her protection from the otherwise unlawful firing. On review, the Court of Appeals for the District of Columbia rejected the Board’s decision, concluding that ‘‘the 

Board’s judgment in this case rests on nothing.’’28 Undeterred, the Board employed 

virtually the same theory in a case decided on September 26. It dismissed a union’s 

election petition for nursing home LPNs on the grounds that all of them were supervisors because they completed ‘‘employee counseling forms,’’ which the Board 

claimed were a precursor to disciplinary action.29

Restricting and Narrowing Already Inadequate NLRB Remedies 

The decisions of this Board have undermined the Act’s already meager remedies 

for employer abuse and interference with protected rights. Coupled with the substantial delays in Board proceedings that in many instances are aggravated by employers’ procedural maneuvering, these rulings will eliminate any deterrent effect 

and in practice will further encourage employers to violate workers’ rights. 

NLRB remedies are notoriously weak and ineffective. An employer who has engaged in misconduct during a union organizing campaign, such as threatening and 

spying on workers, is typically required merely to post an NLRB Notice to Employees promising not to engage in further violations. Workers who are illegally disVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00113 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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charged are entitled to reinstatement and back pay, but to no other form of damages. Most employees never return to their jobs and none receive compensation for 

the economic or psychological devastation that they and their families typically have 

to endure.30

Moreover, the employer is rarely held accountable for the damage done to the organizing campaign, itself. In some cases, if the employer’s misconduct has affected 

the results of the election, the Board may order a rerun election. But delays often 

make even these remedies wholly ineffectual as the ‘‘remedy’’ generally comes long 

after the workers have tried to organize their union and the campaign has been 

thwarted. By then, the damage has been done: the workers have seen how weak 

their so-called protections really are. Illustratively, one of the Board’s September 

cases involves back pay determinations for 202 workers who were denied reinstatement in 1990; 17 years later, none have received any back pay.31

Human Rights Watch has concluded that ‘‘many employers have come to view 

remedies [under the NLRA] * * * as a routine cost of doing business, well worth 

it to get rid of organizing leaders and derail workers’ organizing efforts.’’32 Professor 

Cynthia Estlund echoed this pessimistic view in observing that the Act is ‘‘widely 

flouted by employers who perceive’’ the discharge of union adherents as an ‘‘easy 

and cheap [] response’’ to an organizing campaign.33 These recent decisions will not 

only further embolden labor law-breakers, they vividly demonstrate to workers that 

the NLRB can do little to protect their rights and that their employer can act with 

impunity. 

For example, the Board has now made radical changes in long-standing rules regarding back pay eligibility. On September 30, the Board rewarded employers who 

violate the law, by making it yet more difficult for workers ever to collect back pay 

for unlawful discrimination. Reversing 45 years of established precedent,34 it held 

that the General Counsel and illegally terminated workers will now carry the burden, in a proceeding to determine back pay following a finding of illegal conduct, 

to come forward with evidence that the illegally terminated workers took reasonable 

steps to look for work after being fired.35 If a worker does not present evidence of 

an adequate search for work, the employer will have no back pay obligation. 

In another decision issued on September 11, 2007, the Board had already undercut the likelihood of back pay by announcing a new rule that employees who wait 

more than two weeks before seeking interim work, what the Board characterizes as 

‘‘an unreasonably long time,’’ will be denied back pay for that period because to do 

otherwise would ‘‘reward idleness.’’36 In this case, workers were denied back pay 

even for the time that they were picketing the employer to try to get their jobs back 

and for the period between the time they were advised they had been hired for interim employment and the time they actually started their new, interim jobs.37

Another new rule announced in September shifts the burden to the General Counsel and workers to prove that applicants who were denied employment had a ‘‘genuine interest’’ in working for the employer who illegally refused to hire them.38 This 

builds on a prior burden shifting case in which the Board created a second class 

of discriminatees—those illegally denied employment because the employer suspected they were union organizers, seeking work to organize its workforce.39 Despite 

the historical presumption, still applicable to all other discriminatees, that an applicant would have continued working indefinitely if not for the employer’s illegal conduct in denying them employment, this new subclass of discriminatees is now required to present affirmative evidence to prove that, if hired, they would have 

worked for the employer for the entire backpay period. According to the dissent, in 

promulgating this new rule, the Board rejected ‘‘precedent endorsed by two appellate courts and rejected by none, without any party having raised the issue, without 

the benefit of briefing, and without any sound legal or empirical basis.’’ The dissent 

points out that the rule being changed by the Board was established ‘‘in the Board’s 

first reported case’’ in1935.40

These recent decisions will not only reduce the back pay obligations of adjudicated 

labor law violators, they will have a profound effect on how cases involving back 

pay are investigated and litigated. Not only has it become cheaper for employers to 

violate the law as a result of these new decisions, but the Agency, itself, is now required to help the wrongdoer determine how it can lessen the back pay it is required 

to pay its victims. Workers who file unfair labor practice charges will now spend 

less time with Board Agents on the circumstances of the unlawful termination, and 

correspondingly more time, what they did or did not do regarding a bona fide application for interim employment and subsequent mitigation of damages. These radical 

changes divert the Board’s resources away from enforcing the Act and, instead, toward saving money for law-breakers, who on average have paid back pay awards 

amounting only to $3,500 even before these burden-shifting new rules took effect.41

109

The end result of these new rules is that this Board is making it cheaper for employers to violate the law and using Agency resources to do so. 

Recent decisions have also created an extremely restrictive and narrow view of 

what constitutes remedial action and the necessity for such relief. Broad cease-anddesist orders have been abandoned,42 only mass discharges qualify for a bargaining 

order remedy,43 the so-called extraordinary remedies in cases involving brutal tactics by employers to crush union organizing activities have all but disappeared,44

and Section 10(j) injunction action has ‘‘fallen into virtual disuse.’’45

Past efforts by the NLRB to craft effective remedies have focused on alternative 

means to mitigate the impact of an employer’s unlawful anti-union campaign, such 

as ordering a high ranking company official and/or an NLRB agent to read aloud 

the Notice to Employees to workers and/or mail it to workers’ homes, rather than 

simply burying it on the company bulletin board or simultaneously making it clear 

to employees that it does not agree with the information it was forced to post. In 

the past, the Board has also ordered that unions be allowed to address workers at 

the workplace, something that the supremacy of the employer’s property rights typically precludes. Other remedial initiatives have included access by the union to a 

list of employee names and addresses in order to contact workers to educate them 

about the benefits of collective bargaining; and awarding the union its organizing, 

negotiating or litigation costs.46 Such special remedies, even in cases of egregious 

violations of law, have virtually disappeared under the Bush Board.47 In fact, the 

Board has rejected requests for far more modest remedial steps. In a case involving 

virtually all Chinese speaking workers with limited proficiency reading English, the 

Board rejected as ‘‘not warranted’’ a request that management read aloud its Notice 

to Employees at an assembly and even a request to translate into Chinese the final 

decision in the case.48

The Board has also virtually eliminated the bargaining order as a remedial tool.49

In cases where an employer’s illegal conduct has destroyed the union’s majority support, the Board has the authority to issue what is known as a Gissel bargaining 

order, which directs the employer to bargain with the union on the basis of its earlier, actual and demonstrated majority support.50 Yet this Board has refused bargaining order remedies despite recommendations from its own Administrative Law 

Judges who hear these cases.51 The Board apparently believes that employees’ 

rights can be restored by a promise not to violate their rights again and that a notice posted on a bulletin board will erase fear and intimidation and allow a fair and 

free election.52 This approach to the NLRA’s remedial scheme demonstrates not only 

a disconnect with what workers face when they try to form a union but a profound 

ignorance of workplace realities. What remains of the bargaining order remedy? Apparently, the Board has restricted its application to mass discharges53 where the 

unit size is small54 and the employer’s highest-ranking officers are involved.55 Absent such decimation of the workforce in the most limited of circumstances, the 

Board has turned its back on yet another of its very few available, effective remedies. 

Similarly, Section 10(j) injunctive relief has all but disappeared under the Bush 

Labor Board.56 This remedial tool exists to empower the NLRB to petition a U.S. 

district court for immediate, temporary injunctive relief pending final disposition of 

the underlying unfair labor practice case by the Board. Congress enacted this provision in recognition of the harm caused by delay. Section 10(j) relief ‘‘is designed to 

fill the considerable time gap between the filing of a complaint by the Board and 

issuance of its final decision, in those cases in which considerable harm may occur 

in the interim.’’57 If granted, a 10(j) injunction can force an employer to rehire unlawfully terminated workers or to bargain with a union that it has unlawfully refused to recognize. 

However, seeking 10(j) relief lies within the discretion of the Board. The NLRB 

General Counsel receives 10(j) requests from its regional offices, decides in which 

of these cases it will seek authorization from the Board, and must then be granted 

authorization by majority vote of the Board.58 The past five years has witnessed a 

precipitous decline in the Board’s use of this important and highly effective remedy. 

The yearly average of 40-50 Board authorizations during the 1990’s has plummeted 

to an average of 17.4 since 2002.59

Workers Have Fewer Protected Rights, Especially Pro-Union Workers 

Recent Board rulings have overruled precedent, announced new rules, and applied 

existing law in ways that significantly alter prior policy and strip workers of their 

rights. Seemingly in concert with increased employer resistance,60 this Board’s decisions have diminished employees’ rights. During organizing campaigns, employers 

are permitted greater leeway to intimidate and coerce workers through threats and 

surveillance of workers’ union activities.61 Employers are allowed to institute and 

110

maintain onerous and ambiguous workplace rules that discourage union support 

and chill employees’ exercise of their legal rights to support a union.62 Significantly, 

a Board decision upholding a work rule that prohibited workers from ‘‘fraterniz[ing] 

on duty or off duty * * * with * * * co-employees’’ was denied enforcement by the 

Court of Appeals for the District of Columbia, which characterized the Board’s view 

as ‘‘unreasonable,’’ and observed that ‘‘employees could hardly engage in protected 

activity without fraternizing with each other.’’63 Even non-coercive pro-union conduct by a low level supervisor, which the Board acknowledged was not objectionable 

under the law as it existed at the time the election was conducted, was used to invalidate workers’ votes to form a union despite the vigorous and openly aggressive 

anti-union campaign conducted by the employer.64 These decisions condone antiunion intimidation and interference by employers and further strip workers of the 

Act’s protections. 

In case after case, workers’ rights are forced to yield—to employer property interests however miniscule,65 to employer discretion,66 to national security,67 to deferral 

to arbitration,68 and to other statutes.69 As Board decisions continue to shrink workers’ rights both the ‘‘protectedness’’ and the ‘‘concertedness’’ of employee conduct are 

viewed more narrowly. Examples include this Board’s rulings that nursing home 

workers were not engaged in protected conduct when they called a state patient care 

hotline to report excessive heat;70 that an employee’s solicitation of a coworker to 

testify before a state agency in support of her sexual harassment complaint was not 

protected because she was advancing only her own cause;71 and, in explicitly overruling precedent, that non-union workers had no right to be accompanied by a fellow 

worker when they were called into an employer meeting that could lead to their discipline.72

Employer property interests, however tenuous, have been more valued and far 

more aggressively protected than workers’ rights. Workers must engage in concerted 

activity at their peril despite the supposed protections of the Act. An employer’s 

property rights in its parking lot were more important than the rights of workers 

who waited there in hopes of bringing their work complaints to their company president’s attention.73 In another case involving an employee who used company scrap 

paper to write a union notice to replace one that a supervisor had unlawfully torn 

down from a bulletin board, the Board ruled that that single piece of scrap paper 

constituted a property interest more deserving of the Act’s protection than an employee’s federal labor law rights.74

Workers have also lost ground on evidentiary rulings. Although the Board was 

willing to infer that statements made by a pro-union supervisor to three employees 

were likely repeated other employees so as to require setting aside an election in 

the union’s favor,75 it refused a similar inference where objectionable pre-election 

conduct by an employer was at issue.76 Indeed, five decades of precedent were swept 

aside in a Board ruling that an employer’s threats to close its workplace if employees voted for union representation would no longer be presumed to have been disseminated throughout the workforce.77 The prior rule, which this Board overturned, 

was based on the logic that discussion of this most serious of threats among employees was ‘‘all but inevitabl[e]’’ and that to think otherwise was ‘‘totally unrealistic’’ 

and ‘‘the ultimate in naivete.’’78 Yet that is exactly what this Board did. 

Workers’ Rights to Bargain Collectively and to Strike Are Under Attack 

In a pair of cases involving partial lockouts, the Bush Board seriously undermined 

the fundamental right to strike by sanctioning lockouts in which the employers discriminated among their workers solely on the basis of union membership and union 

support. In one, the Board allowed an employer to lock out strikers who had offered 

to return to work while it continued to employ those who had crossed the picket 

lines and abandoned the strike. The Court of Appeals for the Seventh Circuit, in 

a unanimous decision, denied enforcement, harshly chastising the Board that its decision was ‘‘in derogation of nearly four decades of employee protection.’’79

Relying on this earlier decision (and prior to the Seventh Circuit’s refusal to enforce it), the Board upheld another employer’s decision to lock out only its non-probationary employees, ‘‘all of whom were union members,’’ while allowing its probationary employees, ‘‘all of whom the * * * [employer] believed were not union members,’’ to continue working.80 The majority justified the employer’s selective lockout 

on the basis that non-probationary employees had a more ‘vital interest’ in the outcome of the contract negotiations than probationary employees. As in the prior case, 

these were rationales that even the employer had not proffered during the litigation 

of the case.81 The partial lockout caused the union to lose support and provided the 

employer with an opportunity to stop bargaining and withdraw recognition from the 

union. In an unpublished decision, the U.S. Court of Appeals for the District of Columbia similarly refused to enforce the Board’s decision.82

111

As part of this September massacre, the Board made it even easier for employers 

to deny employment to returning strikers.83 It has been well-settled that, in order 

to be considered ‘‘permanent replacements’’ who will be allowed to continue working 

in the place of returning strikers after the strike has ended, the replacement workers must have ‘‘a mutual understanding with the [employer] that they are permanent.’’ The Board nonetheless held that at-will employees who had signed agreements stating that their employment could ‘‘be terminated by myself or by [the employer] at any time, with or without cause’’ could still be considered ‘‘permanent’’ 

replacements if the employer elected to deny reinstatement to its workforce at the 

end of the strike. 

Recent Board decisions evince a willingness to relieve employers of their collective 

bargaining obligations and allow them greater discretion to make unilateral 

changes. When employers make changes in employees’ working conditions in violation of their legal obligations to bargain with the workers’ union representative, the 

traditional remedy has been to order the employer to restore the status quo, bargain 

with the union, and rescind any actions taken as a result of the illegal unilateral 

changes, including disciplinary actions. Long-standing Board precedent has recognized that even if workers are fired, ‘‘[n]o otherwise valid reasons asserted to justify 

discharging the employee can repair the damage suffered by the bargaining representative as a result of the application of the changed term or condition.’’84 With 

a decision on September 29, the Board eliminated this critical remedy and overruled 

almost two decades of Board precedent.85 The Board had originally upheld the lawfulness of the discharges in 2004, then reinstated this same decision following a remand from the Court of Appeals for the District of Columbia, relying on an interpretation of the Act which the court had specifically and tellingly refused to endorse.86

Conclusion 

Instead of shrinking the Act’s coverage, protections and remedies, this Board 

should be addressing the reality that virulent anti-union campaigns are still the 

norm, that workers face extreme forms of intimidation when they try to form a 

union, and that the rights guaranteed by the Act are still outside the grasp of inordinate numbers and categories of American workers. 

Instead, workers are losing fundamental rights and protections through thinlyveiled result-oriented split decisions. These decisions illustrate how the Bush Administration Labor Board has completely abdicated its statutory responsibilities, 

and why legislative change is so critically needed. Workers deserve a Board that 

will uphold the statutory mandate of the National Labor Relations Act and protect 

their rights to organize and bargain for a better life. They deserve a pathway to collective bargaining that brings workers into the middle class and allows them to stay 

there, a statute that provides meaningful remedies for violations of their rights, and 

a statute that deters labor law violators and precludes their viewing such violations 

as a mere ‘‘cost of doing business.’’

The AFL–CIO calls for the Labor Board to be returned to its role as protector of 

the rights set forth in the National Labor Relations Act and for this Congress to 

enact legislative change that will insure that all workers who wish to be represented 

by a union to negotiate for their future have that opportunity. We ask Congress to 

safeguard workers against a Labor Board that is attacking their rights instead of 

protecting them and we call on Congress to strengthen those rights by passing the 

Employee Free Choice Act.87

ENDNOTES

1 After 70 Years of the NLRB: Warm Congratulations—and a Few Reservations, 48 Law Quadrangle Notes 98, 101 (2005). 2 James J. Brudney, ‘‘Isolated and Politicized: The NLRB’s Uncertain Future,’’ 26 Comp. Labor 

Law & Pol’y 221, 224 (2005). See also, Steven Greenhouse, Labor Board’s Critics See a Bias 

Against Workers, NY Times, Jan. 2, 2005, at A-20, http://www.theocracywatch.org/gov—

labor—times—jan2—05.htm. 3Lance Compa, UNFAIR ADVANTAGE: WORKERS’ FREEDOM OF ASSOCIATION IN THE 

UNITED STATES UNDER INTERNATIONAL HUMAN RIGHTS STANDARDS (Human Rights 

Watch 2000) at 10. 4 Chirag Mehta and Nik Theodore, Undermining the Right to Organize: Employer Behavior 

During Union Representation Campaigns, American Rights at Work, (2005),available at http:/

/www.americanrightsatwork.org/docUploads/UROCUEDcompressedfullreport%2Epdf; see also 

Kate Bronfenbrenner, Uneasy Terrain: The Impact of Capital Mobilization on Workers, Wages 

and Union Organizing, Cornell University (Sept. 6, 2000). 5Gordon Lafer, ‘‘Free and Fair: How Labor Law Fails U.S. Democratic Standards,’’ American 

Rights at Work (2005) available at http://araw.org/docUploads/

FreeandFair%20FINAL%2Epdf; http://www.americanrightsatwork.org/docUploads/

UROCUEDcompressedfullreport%2Epdf. 

112

6The Board granted review in a series of cases which challenge various aspects of voluntary 

recognition, including Dana Corp. and Metaldyne Corp., 341 NLRB 1283 (2004) (Dana I) (reconsidering the voluntary recognition bar policy of Keller Plastics Co., 157 NLRB 583 (1966) 

that a decertification petition may not be filed for a reasonable period of time following voluntary recognition); Dana and UAW, Case Nos. 7-CA-46965 and 7-CB-14083, JD-24-05 (2005) 

(Dana II) (considering whether and to what extent a union and employer may engage in prerecognition bargaining); Shaw’s Supermarket, 343 NLRB 963 (2004) (challenging the continuing 

validity and application of the after acquired stores doctrine set forth in Kroger Co., 2l9 NLRB 

388 (1975). Of these, Dana I was decided on September 29, 2007, 351 NLRB No. 28; Dana II 

is still pending and Shaw’s Supermarket settled. 7The National Labor Relations Act requires employers to recognize and bargain with unions 

‘‘designated or selected’’ by a majority of their employees; the Act does not specify the method 

by which employees are to select their representatives. Section 9 of the Act provides that employees can petition for an election only if ‘‘their employer declines to recognize their representative.’’ See, General Box Co., 82 NLRB 678, 683 (1949); United Mine Workers v. Arkansas Flooring Co., 351 U.S. 62, 72, n. 8 (1956). 8Dana Corp., 351 NLRB No. 28 (2007). 

9Slip op. 14. ‘‘Today’s decision * * * undercuts the process of voluntary recognition as a legitimate mechanism for implementing employee free choice and promoting the practice of collective 

bargaining. It does so at a critical time in the history of our Act, when labor unions have increasingly turned away from the Board’s election process—frustrated with its delays and opportunities it provides for employer coercion—and have instead sought alternative mechanisms for 

establishing the right to represent employees * * *. If disillusionment with the Board’s election 

process continues, while new obstacles to voluntary recognition are created, the prospects for 

industrial peace seem cloudy, at best.’’ Id., slip op. 12. 10 Executive Order 13201, issued by President Bush on February 17, 2001 available at http:/

/www.dol.gov/esa/regs/statutes/olms/eo13201.htm. 11 NLRB notices to employees may be posted as a remedy for illegal conduct pursuant to a 

settlement agreement or NLRB or Court order (NLRB Compliance Manual §10518); and must 

be posted for 3 days prior to an NLRB-conducted election since it notifies employees of balloting 

details (NLRB Representation Casehandling Manual §11314). 12 Charles J. Morris, In the Matter of Rulemaking, February 9, 1993. 13Wurtland Nursing & Rehabilitation Center, 351 NLRB No. 50 (2007). 14 Id., slip op. 2. 15Dana Corp., slip op. 6-7. 16Wurtland, slip op. 3. 17Shaw’s Supermarkets, 350 NLRB No. 55 (2007). 18 Brown University, 342 NLRB 483 (2004) (reversing a four-year-old decision in New York 

University, 332 NLRB 1205 (2000) and eliminating from the Act’s protections thousands of graduate student workers who have been actively seeking union representation during the pendency 

of the Brown case, including those at Columbia University, Yale University, Tufts University, 

Pratt Institute and the University of Pennsylvania, among others. 19Oakwood Care Center, 343 NLRB 659 (2004), overruling Sturgis. 20 Brevard Achievement Center, 342 NLRB 982 (2004). 21LeMoyne-Owen College, 345 NLRB No. 93 (2005), following a remand from the Court of Appeals for the District of Columbia Circuit of the Board’s initial decision reported at 338 NLRB 

No. 92 (2003); faculty are excluded from the Act’s protection because they ‘‘play a major and 

effective role in the formulation and effectuation of management policies.’’ Slip op. 11. 22Pa. Acad. of Fine Arts, 343 NLRB 846 (2004). 23St. Joseph News-Press, 345 NLRB No. 31 (2005). 24Oakwood Healthcare, Inc., 348 NLRB No. 37 (2006); Golden Crest Healthcare Center, 348 

NLRB No. 39 (2006); and Croft Metals, Inc., 348 NLRB No. 38 (2006). 25 RNs are the largest occupational group in the healthcare industry, holding 2.2 million jobs 

in 2000. Almost 1.3 million of these RNs are employed in hospitals, representing fully one quarter of all hospital employees. See 2002-2003 BLS Occupational Outlook Handbook, Registered 

Nurses, Health Industry, available at http://www.bls.gov/oco/cg/cgs035.htm. In addition, there 

are approximately 420,000 LPNs currently employed in both hospitals and nursing homes. And 

the impact of these decisions will not be limited to nurses or to the health care industry; they 

potentially affect all professional employees, who number 27 million. See BLS, 2000-2010 Employment Projections, Table 2. 26 Re-Empowerment of Skilled and Professional Employees and Construction Tradesworkers 

(RESPECT) Act (HR 1644; S 969). 27Wilshire at Lakewood, 345 NLRB No. 80 (2005). 28 Jochims v. NLRB, 480 F.3d 1161, 1174 (D.C. Cir. 2007), reversing and remanding Wilshire 

at Lakewood, 345 NLRB No. 80 (2005). 29Oak Park Nursing Care Center, 351 NLRB No. 9 (2007). 30See Brent Garren, ‘‘When the Solution is the Problem: NLRB Remedies and Organizing 

Drives,’’ 51 Labor L J. 76, 78 (2000). 31Domsey Trading Corp., 351 NLRB No. 33 (2007) (reinstatement denied in 1990; original 

Board decision finding the employer’s conduct unlawful reported at 310 NLRB 777 (1993); enf’d 

16 F.3d 517 (2d Cir. 1994); Administrative Law Judge Decision on backpay issued October 4, 

1999). 32 UNFAIR ADVANTAGE, supra, note 3 at 10. 33 Cynthia L. Estlund, The Ossification of American Labor Law, 102 Colum. L. Rev. at 1527, 

1554 (2002). 34Mastro Plastics Corp., 136 NLRB 1342, 1346 (1962); see also NLRB Compliance Manual 

§10550.1: ‘‘In the event of a dispute concerning interim earnings, it is the respondent’s legal burden to prove interim earnings and other facts that may mitigate the loss resulting from its unVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00118 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
113

lawful action;’’ and Compliance Manual §10558.1: ‘‘It is the respondent’s burden to establish that 

the discriminatee [illegally terminated worker] failed to make a reasonable effort to seek interim 

employment.’’ 35St. George Warehouse, 351 NLRB No. 42 (2007) (the illegal discharges occurred in 1999; 

the decision of the NLRB Administration Law Judge finding wrong-doing issued in 2002). 36The Grosvenor Resort, 350 NLRB No. 86 (2007) (employees were denied backpay for the 

period of time that they were engaged in picketing to get their jobs back). 37This new rule contradicts instructions in the existing NLRB Compliance Manual, §10558.3 

which advises that ‘‘the Board has found that a brief period during which the discriminate undertook no activities to seek employment did not constitute a failure to mitigate, citing Saginaw 

Aggregates, 198 NLRB 598 (1972) and Retail Delivery Systems, 292 NLRB 121, 125 (1988). 38Toering Electric Co., 351 NLRB No. 18 (2007) (backpay proceeding in which refusal to hire 

occurred in 1995-96; NLRB Administrative Law Judge decisions finding illegal conduct issued 

in 1997 and 2000). 39Oil Capitol Sheet Metal, Inc., 349 NLRB No. 118 (2007) (carving our less favorable rules 

when employers unlawfully refuse to hire workers intent on organizing the workforce by applying a new evidentiary requirement that in order to be entitled to continuing backpay, the General Counsel and worker have the burden of proving by affirmative evidence that the worker 

would have continued to work for the employer but for the employer’s unlawful discrimination). 40 Id., slip op. 10, referencing NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 347 

(1953), citing Pennsylvania Greyhound Lines, 1 NLRB 1, 51 (1935) 41 Historically, it has been the responsibility of the General Counsel to calculate the amount 

of backpay owed and the obligation of the adjudicated wrong-doer to present evidence to reduce 

that amount. See n. 33, supra. 42 Intermet Stevensville, 350 NLRB No. 93 (2007) (Intermet II)(refusing a broad order where 

the employer unlawfully laid off four workers because of their union support despite prior case, 

Intermet Stevensville, 350 NLRB No. 94 (2007)(Intermet I), which found numerous violations 

by the employer during its anti-union campaign, including threats of plant closure and job 

losses; demotion, reassignment and reduction in wages for a suspected union supporters, the 

confiscation of union literature; and other worker abuses. 43 Compare National Steel Supply, Inc., 344 NLRB 973 (2005) (bargaining remedy granted) 

with Desert Toyota, 346 NLRB No. 3 (2005), Abramson, LLC, 345 NLRB No. 8 (2005) and The 

Register Guard, 344 NLRB 1143 (2005) (bargaining order remedies denied). 44 Albertson’s Inc., 351 NLRB No. 21 (2007) (rejecting its Administrative Law Judge’s recommendation for a broad order and special remedies despite numerous violations for failure to 

furnish information, unilaterally changing terms and conditions of employment, bypassing the 

union, maintaining unlawful rules and unlawfully disciplining workers). 45 Rick Valliere, Organized Labor Would Fare Better Under State Labor Laws, Professor Says, 

Daily Lab. Rep. (BNA) at A-7(Jan. 11, 2006) (quoting former NLRB Chairman William B. 

Gould). 46Fieldcrest Cannon, Inc. v. NLRB 97 F.3d 65 (4th Cir. 1996), enf’ing in rel. part 318 NLRB 

470 (1995); Dynatron/Bondo Corp., 324 NLRB 572 (1997); Three Sisters Sportswear Co., 312 

NLRB 853 (1993), enf’d, 55 F.3d 684 (D.C. Cir. 1995), cert. denied, 516 U.S. 1093 (1996); Monfort of Colorado, Inc., 298 NLRB 73 (1990), enf’d, 965 F.2d 1538 (10th Cir. 1992); S.E. Nichols, 

Inc., 284 NLRB 556 (1987), enf’d, 862 F.2d 952 (2d Cir. 1988); Avondale Industries, Inc., 329 

NLRB 1064 (1999); Unbelievable, Inc., d/b/a Frontier Hotel & Casino, 318 NLRB 857 (1995), 

enf’d. sub nom. Unbelievable, Inc. v. NLRB, 118 F.3d 795 (D.C. Cir. 1997). 47First Legal Support Services, 342 NLRB 350 (2004) (illegal terminations, threats of discharge in retaliation for their union activities or those of their family members, being required 

to sign agreements that they were independent contractors and not employees and bribes offered 

in return for giving up their union support did not justify special remedies such as allowing 

the union access to the employer bulletin board, an opportunity to address workers on-site, and 

a list of employees’ names so the union could contact them to talk about the campaign). 48 Chinese Daily News, 346 NLRB No. 81 (2006); John Logan, The Long, Slow Death of Workplace Democracy at the Chinese Daily News, available at http://

www.americanrightsatwork.org/docUploads/burke%20report.pdf. 49 Brudney, Neutrality Agreements and Chard Check Recognition, 90 Iowa L. Rev. at 871-872 

(footnotes omitted; quoting Gissel, 395 U.S. at 612). See id. n. 262 (‘‘stunning decline of 85% 

* * * substantially exceeded the 50% decline in election activity over the same period;’’ increased number of unfair labor practices charges filed belies any inference of ‘‘heightened levels 

of law-abiding conduct by the employer community.’’). 50 NLRB v. Gissel Packing Co., 395 U.S. 575, 612 (1969). 51Desert Toyota, 346 NLRB No. 3 (2004) (the employer discharged the principal employee organizer and made statements to another employee linking the discharge to the worker’s union 

support; maintained an unlawful no-solicitation rule, created the impression of surveillance, interrogated non-bargaining unit employees and solicited them to report union activities by others); Abramson, LLC, 345 NLRB No. 8 (2005) (a co-owner made repeated threats of plant closure, threatened employees with loss of jobs and benefits, and unlawfully denied recall to the 

leading union supporter following a post-election layoff); The Register Guard, 344 NLRB 1143 

(2005) (employer unlawfully granted a unit-wide wage increase during the union campaign, conducted meetings in which it solicited and addressed employees’ grievances and sent workers a 

letter with a form addressed to the union withdrawing their union authorization cards); Hialeah 

Hospital, 343 NLRB 391 (2004) (high level officers of the employer embarked on a course of discharge, threats of discharge, spying, and other illegal conduct within hours of learning of a 

union’s organizing effort in a small unit of twelve employees; the employer warned the entire 

workforce that it would discover the identities and get rid of those employees who had contacted 

the union and told them that it would ‘‘not allow’’ a union). 

114

52This, of course, assumes that the discharged worker will ever return to work, or be able 

to do so prior to a second election. 53 California Gas Transport, Inc., 347 NLRB No. 118 (2006); National Steel Supply, Inc., 344 

NLRB 973 (2005) (the employer unlawfully refused to reinstate 27 of its 32 workers). 54 California Gas Transport, Inc., 347 NLRB No. 118 (2006); Center Construction Co., Inc., d/

b/a Center Service System Division, 345 NLRB No. 45 (2005). 55 Evergreen America Corp., 348 NLRB No. 12 (2006); see also California Gas Transport, 347 

NLRB No. 118 (2006); Center Construction, 345 NLRB No. 45 (2006); Smoke House Restaurant, 

347 NLRB No. 16 (2006); Concrete Form Walls, Inc., 346 NLRB No. 80 (2006). 56 29 U.S.C. § 160(j). 57S. Rep. No. 105, 80th Cong., 1st Sess. 27 (1947). 58 Although Section 10(l) requires the Board to seek injunctive relief for certain illegal conduct 

by unions, NO provision of the Act requires the Board to seek immediate, injunctive relief for 

violations by employers of workers’ rights. 59These figures are based on NLRB documents obtained pursuant to a request under the 

Freedom of Information Act, NLRB Annual Reports, and General Counsel Summary of Operations Memoranda GC 08-01, 07-03, 06-01, 05-01, and 04-01. 60 John Logan, ‘‘Consultants, Lawyers and the ‘Union Free’ Movement in the USA Since the 

1970s,’’ 33 Industrial Relations Journal 197 (August 2002). 61 Crown Bolt, Inc., 343 NLRB 776 (2004) (announcing a new rule that threats that the employer will close its facility if employees choose to unionize are no longer presumed to be disseminated throughout the bargaining unit); Alladin Gaming, LLC, 345 NLRB No. 41 (2005) (permitting managers to closely observe and monitor employees’ union discussions and then interrupt their conversations to deliver pro-employer lectures); Airport 2000 Concessions, LLC, 346 

NLRB No. 86 (2006) (interrupting a break time conversation between an employee and a union 

organizer, watching them until they completed their conversation and immediately instructing 

employees not to speak with organizers did not constitute illegal surveillance). 62Delta Brands, Inc., 344 NLRB 252 (2005) (announcing a new policy that maintenance of an 

unlawful overly broad no-solicitation rule during an anti-union campaign is no longer sufficient 

to set aside an election); Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004) (expanding 

permissible employer work rules to include those that prohibit ‘‘abusive and profane language,’’ 

‘‘harassment of other employees * * * in any way’’ and ‘‘verbally, mentally, or physically abusing’’ a fellow employee or supervisor as such employer rules are not unlawful and do not discourage lawful, protected employee organizing activities); Stanadyne Automotive Corp., 345 NLRB 

No. 6 (2005) (upholding as lawful a ban on ‘‘harassment,’’ despite lack of any clarification limiting it to unprotected, harassing conduct or improper behavior and even though the rule was 

expressly announced in direct response to union activity); Palms Hotel and Casino, 344 NLRB 

351 (2005)(a rule forbidding ‘‘any type of conduct, which is or has the effect of being injurious, 

offensive, threatening, intimidating, coercing, or interfering with fellow Team Members’’ was 

ruled to be lawful over the dissent’s assertion that it would chill Section 7 rights); see also River’s Bend Health & Rehabilitation Services, 350 NLRB No. 16 (2007).. 63Guardsmark, LLC, 344 NLRB 809 (2005), enf’d denied, Guardsmark, LLC v. NLRB, 475 

F.3d 369, 379 (D. C. Cir. 2007), emphasis in original. 64 Harborside Healthcare Inc., 343 NLRB 906 (2004) (supervisors’ attempts to solicit employees to support the union constitute unlawful coercive conduct requiring that the union’s election 

win be set aside even though the employer conducted an openly aggressive and vicious antiunion campaign); Chinese Daily News, 344 NLRB 1071 (2005) (a supervisor’s distribution of 

union authorization cards and attendance at a union meeting was ‘‘inherently coercive’’ such 

that the union’s election victory must be set aside even though only one supervisor engaged in 

such conduct and the employer conducted a virulently hostile, open and aggressive anti-union 

campaign.). 65Quietflex Mfg., L.P., 344 NLRB 10555 (2005) (the employer’s property interest in a single 

piece of scrap paper is protected over the lawful union activity of a worker who used the scrap 

paper to make a notice of a union meeting after the employer unlawfully removed a prior notice). 66Guardsmark, LLC, 344 NLRB 809 (2005); Stanadyne Automotive Corp., 345 NLRB No. 6 

(2005); Palms Hotel and Casino, 344 NLRB 351 (2005) (employer workrules do not chill Section 

7 rights). 67 IBM Corp., 341 NLRB 1288 (2004) (‘‘because of the events of September 11, 2001 and their 

aftermath, we must now take into account the presence of both real and threatened terrorist 

attacks’’); ITT Industries, Inc., 341 NLRB 937, 942 (2004) (dissenting from the majority’s decision that off-site employees of the employer had Section 7 rights to handbill in the parking lot 

at a sister facility, Chairman Battista warned that ‘‘our nation now faces significant security 

risks’’ such that ‘‘[e]mployers * * * must be particularly vigilant at this time of our nation’s history.’’ 68Smurfit-Stone Container Corp., 344 NLRB 658 (2005) (deferral to arbitration award even 

though the arbitrator upheld the discipline of an employee who was engaged in protected, concerted activities); Aramark Services, Inc., 344 NLRB 549 (2005) (deferral to arbitrator’s decision 

even though the arbitrator’s decision ‘‘is not a model of clarity,’’ but is ‘‘at least susceptible’’ to 

an appropriate interpretation). 69Krystal Enterprises, Inc., 345 NLRB No. 15 (2005) (employee was lawfully discharged for 

violation of employer’s sexual harassment policy even though his union activity was ‘‘a motivating factor’’ and rampant sexual horseplay and misconduct, the purported reason for his discharge, was generally tolerated); IBM Corp., 341 NLRB 1288 (2004) (the potential for workplace 

discrimination and sexual harassment are articulated as a factor in denying nonunion workers 

the opportunity for representation during disciplinary interviews). 70Waters of Orchard Park, 341 NLRB 642 (2004). 71 Holling Press, Inc., 343 NLRB 301 (2004). 

115

72 IBM Corp., 341 NLRB 1288 (2004), overruling Epilepsy Foundation of Northeast Ohio, 331 

NLRB 676 (2000). 73Quietflex Mfg. Co., 344 NLRB 1055 (2005); Johnson Technology, Inc., 345 NLRB No. 47 

(2005). 74 Johnson Technology, Inc., 345 NLRB No. 47 (2005). 75 Harborside Healthcare, Inc., 343 NLRB 906 (2004). 76Werthan Packaging, Inc., 345 NLRB No. 30 (2005) (no inference that a manager had similarly and systematically interrogated 25 employees where, on the day before the election, the 

manager approached a short tenure employee wearing a union button and asked if she had filled 

out a union card, then wrote something down on a clipboard and was then observed walking 

up to other employees, talking to them and writing on the clipboard; a process repeated with 

about 25 employees). 77 Crown Bolt, Inc., 343 NLRB 776 (2004) (announcing a new rule that threats that the employer will close its facility if employees choose to unionize are no longer presumed to be disseminated throughout the bargaining unit); overruling Springs Industries, 332 NLRB 40 (2000); 

General Stencils, Inc., 195 NLRB 1109 (1972), enf. denied 472 F.2d 170 (2d Cir. 1972); Coach 

& Equipment Sales Corp., 228 NLRB 440 (1977). 78 Crown Bolt, Inc., supra, note 77 at 780 and cases cited therein. 79Midwest Generation, 343 NLRB 69 (2004), rev’d and remanded sub nom. Local 15, IBEW 

v. NLRB 429 F.3d 651, 662 (7th Cir. 2005). 80 Bunting Bearings Corp., 343 NLRB 479 (2004). 81 Id. at 481. 82 United Steelworkers v. NLRB, 179 Fed. Appx. 61 (D.C. Cir. 2006). 83 Jones Plastic & Engineering Co., 351 NLRB No. 11 (2007). 84Great Western Produce, Inc., 299 NLRB 1004, 1005 (1990), citing Boland Marine & Mfg. 

Co., 225 NLRB 824 (1976), enf’d 562 F.2d 1259 (5th Cir. 1977); see also Tocco, Inc., 323 NLRB 

480 (1997). 85 Anheuser-Busch, Inc., 351 NLRB No. 40 (2007) (workers discharged based on evidence from 

illegal video surveillance not entitled to reinstatement, overruling Great Western and Tocco, 

supra.). 86 Anheuser-Busch, Inc., 342 NLRB 560 (2004); rev’d and remanded sub nom. Brewers & 

Maltsters Local 6 v. NLRB, 414 F.3d 36 (D.C. Cir. 2005). 87The House of Representatives passed the Employee Free Choice Act (HR 800), on March 

1, 2007, by a 241—185 vote; the Senate supported the Employee Free Choice Act (S 1041), on 

June 26, 2007, with a 51-48 vote which was not sufficient to invoke cloture; President Bush 

promised to veto the bill. The Employee Free Choice Act requires certification of unions supported by a majority of the workforce, interest arbitration for first contracts, and increased remedies for violations of the NLRA. 

Chairman ANDREWS. Thank you, Mr. Hiatt. I would like to thank 

the witnesses. 

Mr. Cohen, one of the points that Chairman Battista made repeatedly is that the law is neutral. It neither favors management 

nor labor. 

In the Dana decision, it is now a legal requirement after a majority signup recognition, voluntary recognition by an employer or a 

union that the employer has to post a notice telling the employees 

how much time they have to undo that recognition, how they go 

about doing it. Is that correct? 

Mr. COHEN. Mr. Chairman, I do not believe that that is correct. 

There is no requirement that the employer post a notice. 

Chairman ANDREWS. Well, who has to post it? 

Mr. COHEN. If anybody is going to post it, it is, indeed, the employer. But there is no requirement. 

Chairman ANDREWS. Well——

Mr. COHEN. As I said before——

Chairman ANDREWS. We won’t quibble over whether that is—but 

clearly, that is the result of that case. Is there any such requirement that the employer post a notice as to how someone can form 

a union? Are you aware of any? 

Mr. COHEN. There is not. The closes to it is once there is going 

to be an election, a notice of election must be posted by the employer. 

Chairman ANDREWS. Okay. Once there is going to be——

Mr. COHEN. And that notice——

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Chairman ANDREWS. Yes, once there is going to be an election, 

which is a long, long way down the process. Someone has already 

decided there to try to organize something. Does that strike you as 

neutral, that there is an obligation—you won’t say there is an obligation. I will, that there is a precedent in the law that says you 

have to notify people how to undo the will of the majority to form 

a union, but there is no obligation or no precedent that says you 

have to tell people how to form one if they want to. You think that 

is neutral? 

Mr. COHEN. If I might, I am sorry, I have to disagree with the 

premise, Mr. Andrews. And the reason for that is voluntary recognition is still permissible. If nobody posts a notice and no employees ever challenge——

Chairman ANDREWS. The issue is not permissibility. It is notice. 

And after Dana, you have to tell people how to undo what has been 

done. There is no requirement to tell people how they can go about 

getting voluntary recognition or majority signup, is there? 

Mr. COHEN. That is correct. But it is only if there is going to be 

an enjoinment of the recognition bar and subsequent contract 

bars——

Chairman ANDREWS. Well, but, frankly, of course, there would 

want to be a recognition, because once you have gotten a recognition, you want to negotiate a contract. You want the bar so there 

can be adequate time for the parties consistent with the policy of 

the statute to identify the issues and resolve them. 

I want to move on to a question for Professor Finkin. Mr. Hiatt 

made reference to some interesting statistics. The chairman earlier, 

Chairman Battista, talked about reducing the backlog at the board, 

which is half the story. The other half is the number of cases flowing into the board has dropped rather precipitously. 

Representation cases, for example, dropped 26 percent from 2005 

to 2006 and by 41 percent compared to 1997. Unfair labor practice 

cases are now 31 percent lower than they were in 1997. 

Given your experience in this field, I want to give you two 

hypotheses and have you tell me which of the two you think is 

more likely. The first hypothesis to explain this drop is that there 

has been an outbreak of labor peace and a lot of people are a lot 

happier with the way things are going and fewer people think that 

they need to form a union and fewer people think there has been 

an unfair labor practice, that things are working really well. 

And the second hypothesis I would give you is that word has gotten out that this board is tilted in such a way that if you struggle 

the way Ms. Ryland did and keep gong back and keep being persistent, you are either not going to win, or when you do, you are 

not going to get what your remedy is when you win, as Ms. Ryland 

and, frankly, thousands of others have failed to do. 

If you want to add another hypothesis, go ahead. I realize they 

are both a little extreme. But if you had to choose between those 

two hypotheses, which of those two do you think is the explanation 

for this phenomena? 

Mr. FINKIN. Well, Mr. Chairman, the question was, in fact, put 

to me. I was asked by the Korean Institute of Labor to speak to 

the resolution of labor disputes in the United States in Seoul about 

a year ago. And I described as part of tout de resolve what is hapVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6602 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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pening here, the shift onto employees, the increasing shift of the 

risk of medical injury, of health, cost, and the risk of maintaining 

post-employment retirement, level of income onto employees. That 

has been documented. And we can draw on that. 

Chairman ANDREWS. Right. 

Mr. FINKIN. And one of the Korean specialists stood up and accused me of not knowing what the hell I was talking about because 

if that were happening in Korea—he said to me, where are your 

riots in the streets, where are the cars burning, where are the—

you know, in Korea there would be enormous labor protests. And 

I Had to say that in the United States we seem to be persuaded 

more by Thoreau’s observation that most men live lives of quiet 

desperation. 

I can’t say that the happy worker syndrome can characterize the 

bulk of the American workforce, given the decline in purchasing 

power and all the larger macro-economic events going on. I do 

think that with respect to representation, Professor Brudney has 

documented that more workers, in fact, are securing bargaining 

rights through voluntary recognition than by resort to the board. 

If I can take just a second——

Chairman ANDREWS. My time has expired. So I would just ask 

you to finish your thought. 

Mr. FINKIN. The role of an administrative agency to adjust and 

adapt to changing conditions, particularly when the legislature has 

been incapable of addressing national labor policy for 50 years is 

a vacuum. And the labor board has stepped in. I am not arguing 

the merits of whether that is good or bad. It is simply a political 

fact. 

The function of the board should be to discern those conditions 

that require the kind of fine tuning or adjustment. Conditions in 

1947 were very different from conditions in 2007. 

Chairman ANDREWS. Right. 

Mr. FINKIN. All right. Now, what has changed to cause the board 

to abandon the precedent set in the 1960s about the sanctity of a 

recognition decision? What has changed? Nothing has changed except the fact that many more employees are resorting to self-help 

in this regard than are resorting to the board and the composition 

of the current board——

Chairman ANDREWS. I understand. I appreciate that. My time 

has expired. 

I recognize Mr. Kline for 5 minutes. 

Mr. KLINE. Thank you, Mr. Chairman. 

Thank the panelists for joining us today. 

I am just looking at the panel, and I have to comment, Mr. 

Chairman, that clearly, as is always the case, we have sort of a 

three-to-one majority to minority witnesses here. And in fairness, 

it was always that way. When the Republicans were in the majority, it was three-to-one majority to minority witnesses. And I just 

have to say what a shame. You know? 

We have had some very tremendous panelists here. And it would 

be nice for us to hear some balanced testimony. In this case, I 

guess carrying the Republican view we have Mr. Cohen with it all 

on his shoulders. And I am sure he is capable of doing that. He is 

a terrific witness and been here before. 

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Let me say, Ms. Ryland, congratulations to you for being here. 

You are very brave. I am from Minnesota, and about this time 

every year I start thinking how nice it would be to be at Disney 

World. My wife told me it was four degrees at home, and it is never 

four degrees in Orlando. 

Mr. Cohen, there has been some mention today—Senator Kennedy and others have mentioned that we have had a drop in union 

membership. I want to get at a couple of questions here. But one, 

can you tell us has the rate of success in union elections changed 

dramatically over the last 30 years? If it hasn’t changed significantly, does that support or detract from the arguments that the 

board’s most recent decisions are those that are stifling union organization in this country? 

Mr. COHEN. Mr. Kline, there has not been a dramatic change 

over the last 30 years in the percentage of union election victories. 

In fact, they are at a relative high period as we speak, in the high 

50 percent range. 

In addition, elections are taking place under this administration 

and the act and the general counsel of the NLRB in a very quick 

pace. The median time for holding an election is 39 days from the 

filing of the petition. And some 92 percent of elections are held 

within a 56-day period of time. 

Mr. KLINE. It seems fairly fast to me. We may have to go back 

to the hypotheticals of Chairman Andrews. I sort of thought the 

first hypothetical was worth exploring a little more. But no, no, I 

will not. I will not do that. 

Again, Mr. Cohen, going to you, now, you just touched on it, but 

I want to get it clear here for the record. The testimony in the first 

panel today at least suggested that the board’s mechanisms for determining questions of representation, and particularly by way of 

the secret ballot elections, are broken. 

Do you share that view? And in your opinion, does the hard data 

surrounding the board’s supervision of elections support such a 

conclusion? You just touched on it with the 39 days, but if you 

would like to expand on that. 

Mr. COHEN. I may be old fashioned, but I believed in an NLRB 

secret ballot election. I know that many in the union side believe 

that that system is broken. I still believe along with the Supreme 

Court that that is the best measure of employee sentiment. 

A matter which is often overlooked in this area is once the union 

comes in, they are not just representing the individuals who said 

I want the union. They are the exclusive representative for all employees in the collective bargaining unit for all wages, hours, and 

other terms and conditions of employment. That is a heavy responsibility. And it puts a premium on getting the decision right. 

I mentioned I am old fashioned. I go back to my days in the 

1970s where an assistant regional director career person at the 

NLRB said when issues would come up, ‘‘What is the matter with 

an election?’’ I think there is a good deal of wisdom in that admonition. 

Mr. KLINE. And as you indicated, the Supreme Court agrees with 

that, quoting again the court in the Gissel Packing case that the 

secret ballot election is the ‘‘most satisfactory, indeed, the preferred 

method of ascertaining whether a union has majority support and 

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that card checks are admittedly inferior to the election process.’’ So 

your view is entirely in keeping with the Supreme Court. 

It looks like my time is about to expire. But let me try to leap 

in here. We have had some discussion about the board’s blocking 

charge procedures. Can you explain to me the board’s blocking 

charge procedures and how that fosters or inhibits the timely resolution of charges? 

Mr. COHEN. I can attempt to do so. When——

Mr. KLINE. It is all I can ask. 

Mr. COHEN. Fine. It is easier to ask than explain. When a petition is filed for an election, whether it is a representation election 

or a decertification election, there is a notion that the election 

should not be held if there is an atmosphere of unfair labor practice 

conduct so that when an unfair labor practice charge gets filed, in 

a general sense, the NLRB will not conduct an election until that 

unfair labor practice has been resolved, either dismissed, appeal 

denied or remedied. 

We do see in the real world that that is kind of a tactic that gets 

used to forestall an actual election from taking place either in a 

representation matter where a union realizes they are not going to 

prevail in the election or in a decertification election where the 

union would like to have that election not take place for an extended period of time. So that is my best quick explanation of the 

blocking charge. 

Mr. KLINE. Thank you very much. 

Chairman ANDREWS. Thank you. 

The chair recognizes the gentleman from Michigan, Mr. Kildee, 

for 5 minutes. 

Mr. KILDEE. Thank you, Mr. Chairman. 

Mr. Hiatt, what is the cumulative effect of the Bush board decisions over the past 7 years on the ability of workers to form or join 

a union? In addition to the effect of specific rulings, is there a 

chilling or cumulative effect from those rulings? 

Mr. HIATT. Representative, I think that the cumulative effect is 

enormous. And I think you are right. You can’t just look at the 

September cases because these decisions have been coming out for 

several years now. 

As University of Michigan professor and former dean of law 

school, Theodore St. Antoine said, you may have a lot of nibbles, 

but they add up to a pretty large bite. And that is exactly what 

has happened. And indeed, in recent times this crescendo of antiworker or anti-union decisions have been much more than nibbles. 

But cumulatively, over time, these decisions have really been extraordinary and have, indeed, set this board apart from the kind 

of pendulum swings that one might say characterize the affects of 

decision-making in prior boards. This board has made it significantly harder for workers who are illegally fired or denied employment to recover back pay. It has made a certainty that employers 

who violate the act will incur only the slightest monetary loss and 

be required to undertake as little remediation as possible. 

It has made it harder to achieve union recognition without being 

forced to endure the hostile, divisive, delay-ridden NLRB representation process, which is on the books. And although some courts 

have said not the preferred method, other courts have said quite 

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the opposite. You can find support for either case in the—at the 

board and in the courts over the years. 

It has made it easier for employers to deny jobs to workers who 

have exercised their legal right to strike. It has made it easier for 

employers to file lawsuits in retaliation for protected union activities and to punish workers and their unions for their lawful protected conduct. 

It has made it easier for employers to discriminate against employees and job applicants who are also union organizers, even 

though the Supreme Court has specifically held that such workers 

are employees entitled to the act’s protections. It has exempted 

large numbers and categories of workers from coverage under the 

act, from being able to even enjoy whatever meager the rights and 

benefits that this act still provides to workers. Huge numbers and 

numerous categories of workers have been taken out of coverage by 

this board. 

I could go on. I would refer you to the written testimony which 

provides more examples. But the cumulative effect has been enormous. 

Mr. KILDEE. In addition to that, is there a deterrent effect where 

someone, a group or union may be hesitant to appeal for fear of 

getting a bad decision and therefore, they do not appeal at a certain time, at least, with a certain board? 

Mr. HIATT. Not only that, but the law itself is very much unbalanced in terms of which party has the right to appeal. Certain 

types of decisions, particularly in the election area, can be appealed 

only by employers, not by unions or employees. In the Dana case, 

as Member Liebman indicated before, is a very good example of 

that. 

Chairman Battista says in his written testimony, ‘‘Well, if we are 

wrong on some of these cases, you can take them to the courts.’’ 

Well, some like the Dana case, which has probably been discussed 

as much as any other issue here today, could not be appealed by 

the union or by the workers themselves. 

Mr. KILDEE. Thank you very much. 

And thank you, Mr. Chairman. 

Chairman ANDREWS. Thank you very much. 

The chair recognizes the gentleman from Michigan, Mr. Walberg. 

Mr. WALBERG. Thank you, Mr. Chairman. I want to move back 

to the issue of salting. And I would ask for a response from Mr. 

Hiatt and Mr. Cohen basically because it is in the real world of this 

issue, you deal. 

As I understand this, salting is basically the practice where 

union organizers purposely send in members under the guise of attempting to be hired to work in a plant or an employee base in 

order to unionize a plant. It has become evident that their tactics 

can be quite persuasive. 

In fact, one organization, IBWE, has described the salting process as a process of infiltration, confrontation, litigation, and disruption of all nonunion contracts. That is fairly explicit. 

In light of these revelations, I have difficulty understanding how 

someone could be surprised as a former panel member at the 

NLRB ruling to ensure salts are genuinely interested in seeking 

121

work. The Supreme Court has ruled and set precedents that salting 

is legal. And I agree workers should have the right to organize. 

But didn’t the Supreme Court’s ruling leave room to provide clarification of the legitimacy of workers, first question? Moving on, job 

applicants with no genuine aspirations to work for an employer are 

indistinguishable from unpaid union staff members who have been 

held to be outside protection of the act. 

Should employers be forced to hire people that seek only to disrupt a standard work day and a situation through confrontation, 

litigation, et cetera, especially when that person has no interest in 

contributing to the company or working side-by-side with fellow 

employees? 

Mr. Cohen, how would you respond? 

Mr. COHEN. Mr. Walberg, the notion of salting is one that is controversial. It did go up the Supreme Court. The Supreme Court, as 

you correctly stated, said that salts meet the definition of employee. 

To my knowledge, they did not pass on issues related to the 

board decision that have issued this term. And the board obviously 

felt that there was room within the Town and Country Supreme 

Court case to determine the notion that an individual must have 

an intent to be working, rather than basically starting a back pay 

clock ticking and having it run for an extended period of time. That 

is one of the kinds of cases that will be reviewable in the court of 

appeals as well, I would note. 

In terms of the notion of refusal to hire cases, again, this is a 

troublesome area. When I served on the National Labor Relations 

Board, I made it a practice to try to visit regional offices when I 

could. 

And I can tell you I got responses rather uniformly from the people that are out there investigating the cases saying, ‘‘I didn’t come 

to work for this agency to deal with salting cases, which are essentially a got you kind of case where the people don’t have a desire 

to actually engage in employment.’’ So it is a difficult area. And the 

board is working its way through it. 

Mr. WALBERG. Mr. Hiatt, would you care to respond? 

Mr. HIATT. Thank you, Mr. Walberg. It is easy to take an individual case where an individual organizer or individual employee 

who wishes to organize once employed, does not intend to stay on 

the job. But you have to look at the whole picture, which is what 

the Supreme Court did in saying that you cannot discriminate 

based on the motive of people who are seeking jobs. 

The reason why some unions have undertaken salting, as it 

were, is because many work places are so inaccessible to organizers 

and workers and the rules are so stacked against employees on the 

job from organizing on the job itself. And so, in that context, some 

unions have had union supporters seek employment. 

Whether they then intend to stay for a long time or not, whether 

they intend to stay for a short time or not simply should not be the 

issue. And I think the Supreme Court made that clear. 

You cannot have two classes of discriminatees. Indeed, under 

Title 7 under the FLSA, the notion of testers is perfectly accepted. 

And what the board has done here is to say that under this law, 

we are going to recognizes a second class type of discriminatee, one 

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which because of his or her motive, is not going to enjoy the same 

type of protections, including whatever protections would be provided, whatever remediation would be provided to individuals who 

are—to other individuals who are discriminated against because of 

their support for unionization or their intention to join or organize 

a union. 

It is extraordinary. And it is turning the principle on its head announcing a new rule that an employer who refuses to hire a job applicant because of his union affiliation can’t be found guilty of violating the act unless the general counsel provides that the applicant had a genuine interest in employment. 

An employer who has salts who are disruptive, who come into an 

interview and don’t answer the questions, the kinds of things that 

are complained about here, doesn’t have to hire them for perfectly 

legitimate reasons. And they are not going to be found to have discriminated. 

Chairman ANDREWS. We will permit the gentleman a quick comment, then his time is expired. 

Mr. WALBERG. Well, I guess that would be the question, whether 

they do have that opportunity. And I guess we will have to leave 

that for another time. But thank you for your response. 

Chairman ANDREWS. Thank you. 

There appear to be no further members who wish to question. 

Mr. Kline, did you want to make any concluding remarks? 

I want to conclude by thanking the witnesses of both panels for 

their time and effort this morning and in preparation for this 

morning. I do think there is clearly a range of opinions among the 

members of the committee. There is no doubt about that. 

I think that the fact that these issues are so substantially divisive and that people feel so strongly about them would suggest—

far be it for us to suggest—processed to the other body. But that 

when appointees are nominated for service on the board, we would 

favor a full and comprehensive process to evaluate their nominations in light of the issues that are raised today. 

I again want to thank each of the members for their participation, the witnesses as well. As previously ordered, members will 

have 14 days to submit additional materials for the hearing record. 

And any member who wishes to submit follow-up questions in writing to the witnesses should coordinate with the majority staff within 7 days. 

Without objection, the hearing is adjourned. Thank you, ladies 

and gentlemen. 

[The statement of Ms. Sa ́nchez follows:]

Prepared Statement of Hon. Linda T. Sa ́nchez, a Representative in 

Congress From the State of California 

Chairman Miller, Chairman Andrews, Chairman Kennedy, and Chairwoman Murray, I thank you for convening this very important hearing on the effect of recent 

National Labor Relations Board Decisions on the American workers and their families. 

In a very real sense, this hearing brings us full circle from our first Education 

and Labor hearing of the year. Back in January, we examined the state of the 

American Middle Class, highlighting the consequences of years of anti-labor, antifamily legislation combined with an irresponsible economic policy and a consistent 

failure to invest in our workforce, our children, or our industrial base. UnfortuVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00128 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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nately, for working and middle class Americans, the Bush economy has presented 

them with greater obstacles to success than in previous decades. 

As we proceeded through the year, we worked together to undo the damage of the 

Bush years, damage done by legislation that treats workers and their families as 

unimportant cogs in a corporate machine. The biggest mistake made by the previous 

majority was that they forgot that historically, America does best when labor and 

capital cooperate. Together, we can achieve great things. When we invest in families, workers are more secure and more productive. When we invest in children, we 

are creating the next generation of entrepreneurs, engineers, mangers, and captains 

of industry. When we forget the importance of the human element, we falter; we 

squander our most precious resource. 

In order to restore the opportunities that working Americans need, we have 

worked to pass legislation that would: 

• help employees receive equal pay for equal work and ensure their right to seek 

redress when they don’t 

• give the children of low-income families a leg up by expanding and improving 

Head Start 

• ensure that finances don’t ever create a barrier between a student and her college dreams 

• help workers exercise their right to organize and work together for improved 

wages and working conditions. 

It is the danger to this last point that brings us together today. The National 

Labor Relations Act, a Magna Carta of labor law that guarantees basic rights for 

American workers, is under attack—now more than ever. In one month alone, September 2007, the National Labor Relations Board, the appointed guardians of the 

right to organize, issued 61 decisions that shake the very foundation of labor law. 

In one fell swoop, the current majority has undermined not only prior NLRB decisions, but also rights that have existed since the enactment of the National Labor 

Relations Act. 

The NLRB is the only place that workers and their representative unions can vindicate their rights. They cannot take cases to the courts directly. So this latest assault on the right to organize and to seek redress for unfair labor practices is more 

than bad policy, it’s devastating. It turns labor law on its head. 

Like the ‘‘Clear Skies’’ and ‘‘Healthy Forests’’ initiatives, labor policy under this 

Administration doesn’t mean what it ought to. Instead, it means anti-labor policy, 

a set of rules and decisions intended to take away workers’ rights, not to protect 

them. 

While it may take us years to undo some of the damage done by this recent spate 

of NLRB decisions, I have faith that some are so contrary to statute and precedent 

that they will be overturned in the courts. As for the other decisions, I will continue 

to work with my colleagues until working families are no longer on the defense. I 

am enthusiastic to restore meaning to the America’s nickname as the ‘‘land of opportunity.’’

America’s middle class is working hard and producing more than ever, yet it is 

faced with an unprecedented burden of costs and expenses. Our success as a country 

depends on them; their success, right now, depends on us. With that, I look forward 

to the hearing today and to begin to quickly and effectively restore a traditional 

path to economic advancement for workers everywhere: the right to organize. 

Thank you. 

[The statement of Senator Clinton follows:]

Prepared Statement of Hon. Hillary Rodham Clinton, a U.S. Senator From 

the State of New York 

I’d first like to thank Chairwoman Murray and Ranking Member Isakson, as well 

as Chairman Andrews and Ranking Member Kline for calling this joint hearing. 

Since its enactment in 1935, the National Labor Relations Act has played a critical role in safeguarding the rights of workers’ rights to form and join unions and 

bargain for better working conditions. The Act explicitly encourages collective bargaining practices, and calls upon the members of the National Labor Relations 

Board to adjudicate cases in a manner consistent with these policies. 

I am therefore deeply troubled by the NLRB’s recent decisions, and remain very 

concerned about their clear potential to undermine the very rights the NLRB was 

tasked with protecting. The sheer volume of decisions in recent months that have 

walked back worker protections or favored employers in labor disputes reflects nothVerDate 0ct 09 2002 09:58 Aug 25, 2008 Jkt 000000 PO 00000 Frm 00129 Fmt 6633 Sfmt 6621 G:\DOCS\110TH\HELP\110-73\39488.TXT HBUD1 PsN: DICK
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ing less than a tidal shift in the Board’s long-standings precedents and betrays an 

effort to rewrite key protections in the Act through Board rulings. 

The decisions have touched on a wide range of issues involved workers’ rights. 

They have made it more difficult for employers and workers to establish a collective 

bargaining agreement through card checks, more difficult for workers who were illegally fired or denied employment to recover back pay; easier for an employer to deny 

jobs to workers who have exercised their right to strike; easier for an employer to 

file lawsuits in retaliation for protected union activities; and easier for employers 

to discriminate against employees and job applicants who are also union organizers. 

Congress has an important role to play in reviewing and, if necessary, overriding 

Board decisions that are inconsistent with the text and purpose of the National 

Labor Relations Act and the need to protect workers and ensure a fair and constructive relationship between workers and employers in an evolving economy. I stand 

ready to work with my colleagues to find ways to restore the Act’s promise as a bulwark of workers’ rights. 

[Whereupon, at 12:43 p.m., the subcommittees were adjourned.]

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