[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
NLRB OVERREACH: TRAMPLING ON WORKERS'
RIGHTS AND FOSTERING UNFAIRNESS
=======================================================================
HEARING
Before The
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
of the
COMMITTEE ON EDUCATION AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 12, 2024
__________
Serial No. 118-54
__________
Printed for the use of the Committee on Education and the Workforce
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via: edworkforce.house.gov or www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
57-222PDF WASHINGTON : 2024
COMMITTEE ON EDUCATION AND THE WORKFORCE
VIRGINIA FOXX, North Carolina, Chairwoman
JOE WILSON, South Carolina ROBERT C. ``BOBBY'' SCOTT,
GLENN THOMPSON, Pennsylvania Virginia,
TIM WALBERG, Michigan Ranking Member
GLENN GROTHMAN, Wisconsin RAUL M. GRIJALVA, Arizona
ELISE M. STEFANIK, New York JOE COURTNEY, Connecticut
RICK W. ALLEN, Georgia GREGORIO KILILI CAMACHO SABLAN,
JIM BANKS, Indiana Northern Mariana Islands
JAMES COMER, Kentucky FREDERICA S. WILSON, Florida
LLOYD SMUCKER, Pennsylvania SUZANNE BONAMICI, Oregon
BURGESS OWENS, Utah MARK TAKANO, California
BOB GOOD, Virginia ALMA S. ADAMS, North Carolina
LISA McCLAIN, Michigan MARK DeSAULNIER, California
MARY MILLER, Illinois DONALD NORCROSS, New Jersey
MICHELLE STEEL, California PRAMILA JAYAPAL, Washington
RON ESTES, Kansas SUSAN WILD, Pennsylvania
JULIA LETLOW, Louisiana LUCY McBATH, Georgia
KEVIN KILEY, California JAHANA HAYES, Connecticut
AARON BEAN, Florida ILHAN OMAR, Minnesota
ERIC BURLISON, Missouri HALEY M. STEVENS, Michigan
NATHANIEL MORAN, Texas TERESA LEGER FERNANDEZ, New Mexico
LORI CHAVEZ-DeREMER, Oregon KATHY MANNING, North Carolina
BRANDON WILLIAMS, New York FRANK J. MRVAN, Indiana
ERIN HOUCHIN, Indiana JAMAAL BOWMAN, New York
VACANCY
Cyrus Artz, Staff Director
Veronique Pluviose, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
BOB GOOD, Virginia, Chairman
JOE WILSON, South Carolina MARK DeSAULNIER, California
TIM WALBERG, Michigan Ranking Member
RICK ALLEN, Georgia JOE COURTNEY, Connecticut
JIM BANKS, Indiana DONALD NORCROSS, New Jersey
JAMES COMER, Kentucky SUSAN WILD, Pennsylvania
LLOYD SMUCKER, Pennsylvania FRANK J. MRVAN, Indiana
MICHELLE STEEL, California PRAMILA, JAYAPAL, Washington
AARON BEAN, Florida LUCY McBATH, Georgia
ERIC BURLISON, Missouri JAHANA HAYES, Connecticut
LORI CHAVEZ-DeREMER, Oregon ILHAN OMAR, Minnesota
ERIN HOUCHIN, Indiana KATHY MANNING, North Carolina
C O N T E N T S
----------
Page
Hearing held on June 12, 2024.................................... 1
OPENING STATEMENTS
Good, Hon. Bob, Chairman, Subcommittee on Health, Employment,
Labor, and Pensions........................................ 1
Prepared statement of.................................... 3
DeSaulnier, Hon. Mark, Ranking Member, Subcommittee on
Health, Employment, Labor, and Pensions.................... 4
Prepared statement of.................................... 5
WITNESSES
Ring, John F., Partner, Morgan, Lewis & Bockius LLP.......... 7
Prepared statement of.................................... 10
Stock, Alice B., Of Counsel, Bond Schoeneck & King, PLLC..... 22
Prepared statement of.................................... 24
Goldsmith, Eileen B., Partner, Altshuler Berzon LLP.......... 49
Prepared statement of.................................... 51
Seaton, Douglas P., President and General Counsel, Upper
Midwest Law Center......................................... 57
Prepared statement of.................................... 59
ADDITIONAL SUBMISSIONS
Ranking Member DeSaulnier:
October 2020 report entitled, ``Corruption, Conflicts,
and Crisis: The NLRB's Assault on Workers' Rights Under
the Trump Administration''............................. 123
Courtney, Hon. Joe, a Representative in Congress from the
State of Connecticut:
Letter dated June 11, 2024, from a Coalition of Civil
Rights organizations................................... 71
Walberg, Hon. Tim, a Representative in Congress from the
State of Michigan:
Report published by the Institute for the American Worker 79
Foxx, Hon. Virginia, a Representative in Congress from the
State of North Carolina:
Letter dated June 12, 2024, from the Coalition for a
Democratic Workplace................................... 106
Letter dated June 11, 2024, from the Institute for the
American Worker........................................ 110
Letter from the National Right to Work Committee......... 113
NLRB OVERREACH: TRAMPLING ON
WORKERS' RIGHTS AND FOSTERING
UNFAIRNESS
----------
Wednesday, June 12, 2024
House of Representatives,
Subcommittee on Health, Employment, Labor, and
Pensions,
Committee on Education and the Workforce,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:45 a.m., in
Room 2175 Rayburn House Office Building, Hon. Bob Good
[Chairman of the Subcommittee] presiding.
Present: Representatives Good, Walberg, Allen, Burlison,
Houchin, Foxx, DeSaulnier, Courtney, McBath, Hayes, and Scott.
Staff present: Cyrus Artz, Staff Director; Nick Barley,
Deputy Communications Director; Mindy Barry, General Counsel;
Isabel Foster, Press Assistant; Daniel Fuenzalida, Staff
Assistant; Ben Gruber, Intern; Sheila Havenner, Director of
Information Technology; Alex Knorr, Legislative Assistant; Trey
Kovacs, Professional Staff Member; Georgie Littlefair, Clerk;
John Martin, Deputy Director of Workforce Policy/Counsel;
Hannah Matesic, Deputy Staff Director; Audra McGeorge,
Communications Director; Rebecca Powell, Staff Assistant; Kelly
Tyroler, Professional Staff Member; Seth Waugh, Director of
Workforce Policy; Maura Williams, Director of Operations;
Sophia Rees, Intern; Brittany Alston, Minority Operations
Assistant; Ellie Berenson, Minority Press Assistant; Ilana
Brunner, Minority General Counsel; Nekea Brown, Minority
Director of Operations; Arana Blake, Minority CBCF Intern;
Gloria Guity, Minority Intern; Stephanie Lalle, Minority
Communications Director; Dhrtvan Sherman, Minority Research
Assistant; Raiyana Malone, Minority Press Secretary; Kevin
McDermott, Minority Director of Labor Policy; Marie McGrew,
Minority Press Assistant; Paola Milbank, Minority Intern;
Meghan O'Neil, Minority Intern; Eleazar Padilla, Minority Staff
Assistant; Veronique Pluviose, Minority Staff Director; Rachel
Tao, Minority Intern; Banyon Vassar, Minority IT Administrator.
Chairman Good. The Hearing on the Subcommittee on Health,
Employment, Labor and Pensions will come to order. I note that
a quorum is present. Without objection, the Chair is authorized
to call a recess at any time. Thank you to my fellow
Subcommittee members for coming together to examine the
National Labor Relations Board, under the leadership of
Chairman Lauren McFerran, who President Biden recently
renominated to the Board.
Thank you to the witnesses for joining us as well, and I
look forward to your testimony. Chairman McFerran assumed
leadership of the NLRB the very day that President Biden took
office. Under her watch the NLRB has undergone a shocking
transformation. Once a fair and balanced arbiter of labor law,
consistent with the National Labor Relations Act, or NLRA, NLRB
has become the action arm for big labor.
Big labor bias is a losing strategy for the country. Big
labor bias is harmful to companies, employees, and ultimately
consumers. After 3 years of this NLRB's decisionmaking, a
typical American worker is far worse off. Real wages are
decreasing, workers paychecks are stretched more than ever,
average workers prospects for realizing the American dream of
home ownership are disappearing.
Workers watched President Biden promise to make sure the
economy works for everyone in his State of the Union speech
back in March. Bidenomics only seems to work for unions and
union bosses. The American working class knows that unions are
a tired, outdated remnant of yesteryear. It is no wonder that
some pundits and pollsters are predicting the GOP may actually
carry the union vote this November.
That is because workers lives are worse off after 3 years
of President Biden. The last thing they need is for their
paycheck to be docked by a union that does not represent their
interest. In fact, 94 percent of workers didn't vote for their
current union representation, and recent NLRB Board decisions
could drag that number even higher.
Today we will discuss a few of the Board's key decisions
that have led to the place where we are today. The Lion
Elastomers, LLC's II decision expanded protections for union
backed workplace harassment, further eroding trust and cohesion
between employees and employers.
Under the new standard it is harder for employers to
discipline workers who act inappropriately while engaging in
union activity, even if that same behavior in another workplace
setting would have consequences. Similarly, a 2023 Stericycle
Incorporated decision limited employers' rights to maintain
neutral workplace rules.
The decision's interpretation of Section 7 NLRA hampers
employers' ability to protect their business and maintain
order. The NLRB has made significant strides toward undermining
fair union elections. In November 2022, the NLRB proposed
rescinding a Trump-era rule that ensured transparency and
fairness in union elections. Among other things, it allowed for
the release of vote tallies, rather than impounding ballots
during litigation over blocking charges.
Perhaps the most troubling is the 2023 Cemex Construction
Materials Pacific Division, which fundamentally alters the
union recognition process. It permits unions demand recognition
from employers based on a claim of majority support, thereby
bypassing the secret ballot election process.
This decision removes a democratic element of in person
secret ballot elections, replacing them with coercive measures
that pressure employers into union recognition without proper
verification.
Under Chairman McFerran's leadership the Board has engaged
in gross mismanagement in the conduct of mail ballot elections,
according to an October 2023 report from the NLRB Inspector
General.
Furthermore, an investigation conducted by this Committee
revealed numerous findings of similar mismanagement in the
administration of mail ballot elections across the country. It
is a testament to how radical this Board is as it ignores its
clear legal duties to manage fair elections in favor of
overturning decades of precedent.
Rather than take ownership of this mismanagement, the NLRB
under Chairman McFerran has yet to comment publicly on the
mismanagement of mail ballot elections. Despite this
Committee's requests, it is unknown whether the Board has
sought to fix these problems internally. Exposing and
highlighting, or low lighting the Board's mismanagement, and
undermining of key principles of the NLRA is the primary
objective of this hearing.
It also raises the question of whether Chairman McFerran
should be renominated, a question the Senate should answer by
holding a nomination hearing. Thank you, and I yield to the
Ranking Member for his opening statement.
[The Statement of Chairman Good follows:]
Statement of Hon. Bob Good, Chairman, Subcommittee on Health,
Employment, Labor, and Pensions
Thank you to my fellow Subcommittee members for coming together to
examine the National Labor Relations Board under the leadership of
Chairman Lauren McFerran, who President Biden recently renominated to
the Board. Thank you to the witnesses for joining us as well. I look
forward to your testimony.
Chairman McFerran assumed leadership of the NLRB the very day
President Biden took office. Under her watch, the NLRB has undergone a
shocking transformation. Once a fair and balanced arbiter of labor law
consistent with the National Labor Relations Act (NLRA), the NLRB has
become the action arm for Big Labor.
Big Labor bias is a losing strategy for the country. Big Labor bias
is harmful to companies, employees, and ultimately-consumers. After
three years of this NLRB's decision-making, the typical American worker
is far worse off.
Real wages are decreasing, and workers' paychecks are stretched
more than ever. Average workers' prospects for realizing the American
dream of homeownership are disappearing. Workers watched Biden promise
``to make sure the economy works for everyone'' in his State of the
Union address back in March. Bidenomics only works for unions and union
bosses.
The American working class knows that unions are a tired, outdated,
remnant of yesteryear. It is no wonder that some pundits and pollsters
are predicting the GOP may carry the union vote in November.
That is because workers' lives are worse after three years of
President Biden. The last thing they need is for their paycheck to be
docked by a union that does not represent their interests. In fact, 94
percent of workers did not vote for their current union representation,
and recent NLRB Board decisions could drive that number even higher.
Today, we will discuss a few of the Board's key decisions that have
led to the place we are today.
The Lion Elastomers LLC II decision expanded protections for union-
backed workplace harassment, further eroding trust and cohesion between
employees and employers. Under the new standard, it is harder for
employers to discipline workers who act inappropriately while engaging
in union activity, even if that same behavior in another workplace
setting would have consequences.
Similarly, the 2023 Stericycle Inc. decision limits employers'
rights to maintain neutral workplace rules. The decision's
interpretation of Section 7 of the NLRA hampers employers' ability to
protect their business and maintain order.
The NLRB has made significant strides toward undermining fair union
elections. In November 2022, the NLRB proposed rescinding a Trump-era
rule that ensured transparency and fairness in union elections. Among
other things, it allowed for the release of vote tallies rather than
impounding ballots during litigation over ``blocking charges.''
Perhaps the most troubling is the 2023 Cemex Construction Materials
Pacific decision, which fundamentally alters the union recognition
process. It permits unions to demand recognition from employers based
on a claim of majority support, thereby bypassing the secret-ballot
election process. This decision removes the democratic element of in-
person, secret-ballot elections, replacing them with coercive measures
that pressure employers into union recognition without proper
verification.
Under Chairman McFerran's leadership, the Board has engaged in
``gross mismanagement'' in the conduct of mail ballot elections,
according to an October 2023 report from the NLRB Inspector General.
Furthermore, an investigation conducted by this Committee revealed
numerous findings of similar mismanagement in the administration of
mail ballot elections across the country. It is a testament to how
radical this Board is, as it ignores its clear legal duties to manage
fair elections in favor of overturning decades of precedent.
Rather than take ownership of this mismanagement, the NLRB under
Chairman McFerran has yet to comment publicly on the mismanagement of
mail ballot elections, and, despite the Committee's requests, it is
unknown whether the Board has sought to fix these problems internally.
Exposing and highlighting -- or lowlighting -- the Board's
mismanagement and undermining of key principles of the NLRA, is the
primary objective of this hearing. It also raises the question of
whether Chairman McFerran should be renominated, a question the Senate
should answer by holding a confirmation hearing.
______
Mr. DeSaulnier. Thank you, Mr. Chairman. As I have repeated
many times, as many of you know, I was a small business owner
for over 30 years. I pride myself on the relationships that I
had with my purveyors and my customers, and my employees over
those 30 years. I understood that my success as an employer,
having met multiple pay responsibilities to my employees was
part of my success.
That good employees and good employers work together for
the success of the company, whether it is a privately held
company or a corporation. I learned clearly in those 30 years
that there was an absolute obligation for your success and your
return on investment and your profitability to make sure that
your employees were well treated.
If employees did not perform, just like employers and
managers, you would hold them accountable. As a former union
member, I know firsthand the benefits of union membership and
the power workers' unions have to bridge the gap between
workers and their employers to help not only union workers
succeed, but all workers.
After all it was the labor movement that built the middle
class in the United States by giving employees a voice on the
job. Some of our Nation's greatest advances for workers, from
the 5-day work week to the minimum wage, to child labor laws,
have been made possible by the labor movement.
Americans recognize the importance of unions, which is why
over two thirds support of approval, or have approval of labor
unions. Not only is public support at a near record high, more
and more workers are uniting to demand higher wages, improve
benefits, safer workplaces, and we should support them.
Those employees worked with their employers for their
success, and for the consumers' and investors' success. As
Galbraith put it, ``Labor unions are among the countervailing
powers to balance capitalist markets and the interest of
corporations.''
I look forward to this Subcommittee and my Republican
colleagues having a similar hearing on abuses on the Security
Exchange Commission under the former administration in the
favor of very wealthy people. Recently, I read that 751
Americans now have five trillion dollars' worth of wealth. All
of that came from middle class incomes, or much of it, not that
just their investment strategies.
Today's hearing appears to be focused on the National
Relations Board, which during the Biden administration, under
Chair McFerran's leadership, has often reinstated common self
and longstanding precedent that was cast aside by prior
administration's Board. In the process of doing so, the NLRB
has restored balance between workers and their employers, not
an advantage, but balance.
I look forward to discussing those cases today and setting
the record straight on them. In spite of our differences, I
think all of us want a balanced economy that all Americans
benefit from, I think. The bottom line is that Chair McFerran
deserves credit for her leadership and thoughtful approach on
balance.
President Biden recently recommended her for another 4-year
term, and I encourage the Senate to again confirm Ms. McFerran,
just as they did on a bipartisan basis in July 2020. I think
today's hearing presents an opportunity to hear about how the
Board really functions and carries out its duties.
We are fortunate to have as one of our witnesses, a
Democratic witness, Eileen Goldsmith, a Partner in a San
Francisco law firm for more than 20 years. Ms. Goldsmith has
represented clients who regularly appear before the Board in
both unfair labor practice and representation cases.
She understands how the Board works and is supposed to
work. She is great to have someone from my neck of the woods,
the San Francisco Bay Area, to testify before this
Subcommittee, and welcome. Thank you for making this trip to
D.C. and sharing your expertise.
What I think is clear that Ms. Goldsmith's testimony is
that the Board carries out its duties, often on a bipartisan
basis, but the Board needs additional resources to function
effectively for workers and employers, and the American public.
My Democratic colleagues and I strongly support additional
funding for the NLRB to ensure that it can manage its caseload.
As Ms. Goldsmith's testimony makes clear, it is not just
resources. Unscrupulous employers can get away with firing
workers who try to organize a union. Congress needs to step in
and stop that from happening, both for the employees' benefit,
but also for high road employers who follow the letter of the
law, and the spirit.
That is why we need to pass the Protecting Right to
Organize Act, the PRO Act, and continue to uphold our
commitment to workers' rights, which are all Americans' rights.
Thank you, and I yield back.
[The Statement of Ranking Member DeSaulnier follows:]
Statement of Hon. Mark DeSaulnier, Ranking Member, Subcommittee on
Health, Employment, Labor, and Pensions
Thank you, Mr. Chairman.
As I have repeated many times, and many of you know, I was a small
business owner for over 30 years, and I pride myself in the
relationships I had with my purveyors, customers and employees over
those 30 years. I understood my success as an employer having met
multiple pay responsibilities to my employees was part of my success.
That good employees and good employees work together for the success of
the company. Whether it is a privately held company or corporation. I
learned clearly in those 30 years there was an absolute obligation for
your success and return on investment and profitability to make sure
your employees were well treated. If employees did not perform just
like employers and managers you would hold them accountable.
As a former union member myself, I know firsthand the benefits of
union membership and the power workers' unions have to bridge the gap
between workers and their employers to help not only union workers
succeed but all workers. Also, their non-union counterparts.
It was the labor movement that built the middle class in the United
States by giving employees a voice on the job.Some of our nation's
greatest advances for workers -- from the five-day workweek to the
minimum wage -- to child labor laws have been made possible by the
labor movement. Americans recognize the importance of unions, which is
why over two-thirds support of them approve of labor unions. Not only
is public support at near-record highs, more and more workers are
uniting to demand higher wages, improved benefits, and safer
workplaces, and we should support them. Those employees work with their
employers for their success, the success of consumers, and the success
of investors.
As John Galbraith put it, labor unions are among the
``countervailing powers'' that balance capitalist markets and corporate
interests.
I look forward to this committee and my Republican colleagues
having a similar hearing about abuses on the secure exchange commission
under the former administration in favor of very wealthy people.
Today's hearing appears to be focused on the National Labor
Relations Board, which, during the Biden Administration and under Chair
McLerran's leadership, has often reinstated common sense and
longstanding precedent that was cast aside by the prior
administration's board. In the process of doing so, the NLRB has
restored balance between workers and their employers -- not an
advantage but a balance.
I look forward to discussing those cases today and setting the
record straight on them. In spite of our difference, I think we all
want a balanced economy that all Americans benefit from. I think.
The bottom line is that Chair McFerran deserves credit for her
leadership and thoughtful stewardship. I understand President Biden has
renominated her for another four-year term, and I encourage the Senate
to confirm Her again -- just as they did on a bipartisan basis in July
2020.
I think today's hearing presents an opportunity to learn how the
Board really functions to carry out its duties.
We are fortunate to have as one of our democratic witnesses, Eileen
Goldsmith, a partner at a San Fransisco-based law firm. For more than
20 years, Ms. Goldsmith has represented clients who regularly appear
before the Board in both unfair labor practice and representation
cases. She understands how the Board works and is supposed to work. Ms.
Goldsmith, it is great to have someone from my neck of the woods, the
San Francisco Bay area, testify before this Subcommittee. Thank you for
making the trip to DC and sharing your expertise.
What I think is clear in Ms. Goldsmith's testimony is that the
Board carries out its duties often on a bipartisan basis -- but the
Board needs additional resources to function effectively for workers,
employers, and the American people. My Democratic colleagues and I
strongly support additional funding for the NLRB to ensure that it can
manage its caseload.
As Ms. Goldsmith's testimony makes clear, it is not just resources.
Unscrupulous employers can get away with firing workers who try to
organize a union. Congress needs to step in and stop that from
happening. For the employes but also high road employers who follow the
letter of the law. That is why we need to pass the Protecting the Right
to Organize Act and continue to uphold our commitment to workers'
rights.Thank you, and I yield back.
______
Chairman Good. Thank you. Pursuant to Committee Rule 8-C,
all members who wish to insert written statements into the
record may do so by submitting them to the Committee Clerk,
electronically in Microsoft Word format by 5 p.m., 14 days
after the date of this hearing, which is June 26, 2024.
Without objection, the hearing record will remain open for
14 days to allow such statements, and other extraneous
materials referenced during the hearing to be submitted for the
official hearing record.
I will now turn to the introduction of our distinguished
witnesses. Our first witness is Mr. John Ring, who is a Partner
with Morgan Lewis in Washington, DC. He previously served as
NLRB Chairman from 2018 to 2021. Welcome, Mr. Ring.
Our next witness is Ms. Alice Stock, who is Of Counsel with
Bond Schoeneck & King in New York. She previously served as the
NLRB Deputy General Counsel from 2019 to 2021. Thank you, Ms.
Stock.
Our third witness is Ms. Eileen Goldsmith, who is a partner
with Altshuler Berzon in San Francisco, California. Her
practice consists primarily of representing unions and workers.
Welcome, Ms. Goldsmith.
Our final witness is Mr. Douglas Seaton, who is President
and General Counsel of Upper Midwest Law Center in Minneapolis.
He has long practiced labor and employment law. Welcome, Mr.
Seaton.
We thank the witnesses for being here today. We look
forward to your oral testimony. Pursuant to Committee Rules,
we'd ask that you limit your oral presentation to a 5-minute
summary of your written statement. I would like to remind the
witnesses to be aware of their responsibility to provide
accurate information to the Subcommittee. I will now recognize
Mr. Ring for 5 minutes.
STATEMENT OF MR. JOHN RING, PARTNER, MORGAN LEWIS, WASHINGTON,
D.C.
Mr. Ring. Thank you, Mr. Chairman. Chairman Good, Ranking
member DeSaulnier, and other Subcommittee members, thank you
for your invitation to participate in today's hearing. As
mentioned, I am a partner at Morgan Lewis, where I practice
labor law, and did so for almost 30 years prior to becoming
Chairman of the National Labor Relations Board.
I served as Chairman for almost 3 years, and then as a
Board member until the end of my term in December 2022.
Although I have spent my career representing management, I am
proud to have started in the labor field working at the
Teamster's headquarters here in Washington. It is an experience
that gave me an important perspective, and that shaped my
overall approach to labor relations.
I am a firm believer that labor law works best when both
sides play by the same set of rules and understand and respect
each other's objectives. We are here today to talk about the
National Labor Relations Board, an agency that I care a great
deal about, and about the National Labor Relations Act, a
carefully crafted statute that for the last almost 90 years has
done an admiral job of balancing the interests of labor and
management.
While the NLRB over the years has largely fulfilled its
central objectives of promoting workplace democracy, and
ensuring industrial peace, I fear today the NLRB has seriously
lost its way. The current Biden Board majority, and the NLRB
General Counsel are promoting a particular agenda, and
attempting to administratively rewrite the Act. They are doing
this to facilitate unionization and to create--to increase
union density at the expense of individual employee rights and
employer interests.
Despite the fact that the Act clearly directs the agency to
be impartial and be an impartial arbiter of labor matters.
Approximately 8 years ago many had similar concerns about the
NLRB. The Obama-era Board had started a process of overturning
years of longstanding case precent in many areas of established
Board law.
At the time many were alarmed about what was happening. It
appeared to be a blatant attempt to rewrite key aspects of the
Act, and also an upsetting of the balance established by the
National Labor Relations Act, tilting it toward labor. At the
time the Board was also bogged down and distracted with many of
these efforts that seemed to be focused on non-core priorities.
I was very concerned, and that is one of the reasons that I
feel fortunate that I was able to have an opportunity to serve
on the National Labor Relations Board. While I was Chairman, we
were able to restore the Board's historic balance, and we
reestablished much of the decades old precedent that had been
changed by the Obama years.
We returned many of the standards to what they had been for
decades, including the joint employer standard, the independent
contractor standard, and the rules governing union election
procedures. We also worked to reduce an appalling case backlog,
and we did so largely by putting an end to the Obama Board's
pursuit of these issues that were outside of the core mission,
or that involved dubious statutory interpretations that
resulted in lengthy, unsuccessful litigation.
After the Obama-era Board, we thought we had seen the worst
at the NLRB. Unfortunately, the current Board majority appears
to be reverting to, in fact doubling down on, the old game
plan. Today we find ourselves in a back to the future moment,
although what is happening now is far worse. From their outset
and their time in office, the new Board majority and General
Counsel have made no secret that their intent is to undertake a
wholesale rewriting of the Act.
They immediately targeted precedent that we had restored,
called for unprecedented expansion of many interpretations of
the Act, and are now steadily working to remake and reimagine
the National Labor Relations Act into something the drafters of
the statute never intended, or could have imagined.
In doing so, both the Board and the General Counsel are
again pursuing issues that are either outside the core mission,
or involve suspect statutory interpretations that are being
rejected by the courts. Among the most troubling of these areas
is the current Board majority has radically upended the
framework for union organizing, and under the U.C. Mex Case
there is essentially compulsory unionism simply because a union
says it represents a majority.
The Board now imposes unionization on employees through
mandatory bargaining orders based solely on the conduct of
their employer, and despite the fact that Congress rejected the
card check repeatedly, there is now a card check in the NLRB
process.
I will end my statement by saying no one claims the NLRA is
perfect, but at times both labor and management have suggested
otherwise in some amendments, but in the end, it is Congress
that makes the Federal labor law, not the NLRB.
[The prepared statement of Mr. Ring follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chairman Good. Thank you, Mr. Ring. We will now recognize
Ms. Stock for 5 minutes.
STATEMENT OF MS. ALICE STOCK, OF COUNSEL, BOND, SCHOENECK &
KING PLLC, NEW YORK, NEW YORK
Ms. Stock. Thank you for the invitation to testify at this
hearing. I am honored to be here. I have been asked to assess
the Board's performance with respect to protecting workers'
rights and fairness. In my opinion, this Board's decisions,
policies, and management of agency operations are inconsistent
with, and contrary to the mission and core principles of the
NLRA.
Indeed, the current Board agenda subverts the aims of the
NLRA and impedes its utility and effectiveness as a
constructive, contributing component of our Nation's labor
stability. This Board's policies disregard balance, fairness,
and the rights of employees and employers, and negate its role
as an impartial administrator of the NLRA and guardian of
worker's rights.
This Board's agenda is neither neutral nor fair. It is an
agenda that favors unions and tramples the rights of workers
and employers. Its rulings violate constitutional principles,
usurp the powers of Congress, contradict U.S. Supreme Court
holdings, lay waste to the rules of administrative procedure,
and trample the substantive and procedural due process rights
of employees and employers.
The NLRB's two functions are to conduct secret ballot
elections, and to investigate and resolve labor disputes
through settlement or Board decision. In performing these two
functions, the Board must conform to the U.S. Constitution, and
applicable U.S. Supreme Court rulings.
Adhere to the NLRA's text and may not make or change the
law through decisionmaking, and act neutrally, impartially, and
even-handedly, favoring neither employers nor unions. This
Board's decisions and policies do not hue to any of these
cardinal principles. I address three areas of grave concern.
Elections, this Board's decisions, policies and practices
concerning representation elections have and are practically
speaking, disenfranchising large numbers of workers, and
deliberately depriving workers of their right to vote in a
secret ballot election.
Contrary to NLRA principles, this Board is imposing on
employees, unelected bargaining representatives, that likely or
actually do not enjoy majority support. This Board's preference
for mail ballot elections over in person elections, and its
mishandling of mail ballot elections also disenfranchises
employees because they result in reduced voter participation,
increased invalidation of ballots, and greater employee
exposure to union coercion and intimidation.
Decisionmaking in its adjudications, the Board has not
colored within the lines of the law and congressional intent,
but instead has radically changed the law. The Board's
decisions exhibit a troubling disregard for the core principles
of the NLRA, for its obligation to follow applicable U.S.
Supreme Court precedent for the rights of employees and
employers, and for substantive and procedural due process.
Caseload mismanagement--case processing times and backlogs
have increased at all levels of the NLRB. During periods of
decrease or no tangible increase in case filings, these backlog
increases can only be attributed to mismanagement by agency
officials. Enshrined as core principle of the NLRA, and indeed,
of our democracy itself, is the selection of a representative
through a secret ballot election.
The secret ballot election has been the gold standard for
selecting bargaining representatives since 1935. This Board has
nevertheless pursued an anti-democratic policy agenda to
eliminate secret ballot elections, thereby depriving employees
of the free choice and selection of a bargaining representative
that is guaranteed by the NLRA.
In its zeal to push its policy agenda, and rewrite the text
of the NLRA, this Board has ignored the bedrock concepts of our
legal system, fairness and due process. The Board's
decisionmaking and mismanagement of elections and agency
caseload negatively impact the effectiveness of the NLRB and
undermine its authority and credibility as a neutral arbiter of
labor disputes.
They also subvert the purposes of the NLRA, and danger its
utility and effectiveness as a source of labor stability and a
pillar of economic growth of our Nation.
[The prepared statement of Ms. Stock follows:]
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Chairman Good. Your time has expired. I am sorry. Thank you
very much, Ms. Stock. Ms. Goldsmith is recognized for 5
minutes.
STATEMENT OF MS. EILEEN B. GOLDSMITH, PARTNER, ALTSHULER BERZON
LLP, SAN FRANCISCO, CALIFORNIA
Ms. Goldsmith. Thank you, Chairman Good and Member
DeSaulnier, and members of the Subcommittee for the opportunity
to testify today. I am a practicing union lawyer in San
Francisco. I have been representing labor unions for more than
20 years, and I want to bring the focus to what does this
agency actually do from the perspective of someone who
practices regularly before the agency representing clients.
What does the Board do? The Board's central duty is to
protect employees' rights under the Act in Section 7. I think
it is worth looking at the language of Section 7 for just a
moment. It creates the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining, or other mutual aid or protection, and the Act also
protects employees' right to refrain from those activities.
In upholding the constitutionality of the Act, the U.S.
Supreme Court in Jones and Laughlin Steel called those Section
7 rights a fundamental right, so that is the right we are
talking about. That is what the Board is interpreting every
day. I have the greatest respect for the Act and the rights
that it created.
In my testimony, I talked about typical examples of how the
Board operates almost always in a very non-partisan and
unanimous fashion. Particularly, when you look at cases down at
the regional level, which is where the overwhelming majority of
cases are actually resolved.
They are resolved in a thorough, professional and utterly
nonpartisan way. I wanted to mention a couple of cases that
kind of illustrate what work--both what is the ordinary
functioning of the Board and what workers are up against when
they attempt to exercise their Section 7 rights.
These few cases that I mention in my testimony from my own
law firm, one is, and generally speaking, these cases, are,
involve the application of well settled law to sets of facts,
and they are, they may not be grabbing headlines, but these are
crucial functions of the Board that workers and their
representatives rely on, as well as employers.
In one typical case that my colleagues handled in my firm,
several workers who were employed by a construction contractor
were fired when they tried to organize a union. After a union
organizer met with workers at the jobsite, they followed--the
workers followed up with that organizer, met with him,
discussed unionizing, and signed authorization cards.
The very next day, the very next day, the supervisor told
one of the workers that he, ``Knew what you guys did with the
union yesterday,'' and directed one of those workers to fire
the others because again quoting, ``The company does not use
those type of people.''
A supervisor confirmed later that day that all of the
workers had been fired. The union filed a charge against this
company for alleging that the company fired those workers for
having tried to unionize. Following a thorough investigation by
staff at NLRB Region 21, the Board's General Counsel found
probable cause to believe the employer violated the Act.
The case proceeded to a hearing, and I cannot say it any
better than the ALJ said it, ``The motive for the workers'
firings, a best supported by the record, is that the company
hoped that by terminating a handful of employees, including
some relatively senior and influential ones, it could quell
interest in a nascent union campaign.''
As the data shows that I discuss in my written testimony,
what happened at that company is hardly isolated. The other
point I would like to raise briefly is elections. My firm has
recently handled several elections involving Stanford
Healthcare and Packard Children's Hospital.
In each case, the union and the employer stipulated to the
proposed bargaining units and the terms of those elections, so
the employer agreed to handle those by mail ballot. They went
very smoothly, they had very high participation by the voters,
79 to 100 percent participation. We were very grateful for the
efficiency and professionalism of Region 32 staff in handling
those matters.
Despite the NLRB's important work, a critical problem that
confronts both labor and management is the severe understaffing
at the Board, and the budget, which was flatlined for almost a
decade until a slight increase in Fiscal Year '23. That is not
good for anyone.
[The prepared statement of Ms. Goldsmith follows:]
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Chairman Good. I am sorry. Your time has expired.
Ms. Goldsmith. Thank you.
Chairman Good. Thank you, Ms. Goldsmith. We will finally
recognize Mr. Seaton for 5 minutes.
STATEMENT OF MR. DOUGLAS P. SEATON, PRESIDENT AND GENERAL
COUNSEL, UPPER MIDWEST LAW CENTER, MINNEAPOLIS, MINNESOTA
Mr. Seaton. Thank you, Mr. Chairman, Ranking Member
DeSaulnier, members of the Committee. You have a full bio, and
the written testimony I have provided in much more detail than
I can review here of course today. My background is simply that
I have taught and practiced, and written about labor history,
labor law, labor relations for 40 plus years.
I now work for a nonprofit, nonpartisan public interest law
firm, but I am speaking here simply as an individual because of
my concern about the status of the National Labor Relations
Board's deliberations, and the functioning of our labor
relations system, a great institution in our country.
I believe that Senators Wagner and Taft, and Representative
Hartley, the authors of our labor laws, would not recognize the
direction of the NLRB under the current Chair. The genius of
the American labor law system is in several respects
contrasting with that of other major democracies, and those
influenced by Western democracy.
We have three critical things going for us in our system.
One, our employees choose union representation, or not, and can
extricate themselves from that representation if they wish to
do so. That is important, and it is unique.
Second, we have a system based on single employer
bargaining, not national accords, not national strikes over
political and social issues, but individual employer
agreements, which is a very, very important thing for our
system.
The third piece is we have a tri-partite balanced system,
which recognizes employee rights, union rights, and employer
rights, and that is a system of checks and balances that is
very familiar to the members of this Subcommittee. It is the
same one we have functioning in our Constitution nationally.
Those are important things to preserve. It is a balanced
system with employee choice at its center, and it functions by
returning the equilibrium whenever one group overreaches, gets
out over its skis. When one of the parties involved, or even
worse, the agency itself puts its thumb on the scales, that is
not good for the system. It does not work in anyone's
interests, and it does not work in the country's interest.
I have grave concerns that the current Board, under its
current Chair, is not adhering to the spirit and purpose of the
NLRA as I have described it in several of its recent decisions
and actions. The clear pro-union institutional bias of the
current Board Chair and corresponding anti-employee, and anti-
employer animus are particularly disturbing because as this
Subcommittee knows, unions represent only 6 percent of our
workforce in the private sector. 6 percent of the workforce,
and even less when you consider the large number of service
providers who function as independent contractors, choosing not
to be employees themselves.
Now, as time allows, I will mention a few specific areas of
concern which I have over the current Board. There are six in
number, I will try to be very brief for the Committee's
pleasure. Employee free choice. Everyone at this table has
mentioned that free choice. That is a choice that extends to
either selecting or unselecting union representation.
I believe that the current NLRB has modified, sought to
overrule, or has changed decisional law, and procedures in many
areas to limit the ability of employees to have that choice
that the labor laws are meant to enshrine in our country, and
that is a very serious problem in our system at present.
The second area that I would mention is employee protection
from insults in the workplace. The current Board has allowed
unions and individual employees to insult one another in the
course of union activity. That was not allowed under the prior
Board, and employers were permitted to discipline in those
cases when those things happened.
That has been disallowed at present. The third area I would
mention is employee confidentiality protections and complaint
investigations. This is a central feature of employer practice,
recommended by the EOC and State discrimination agencies, and
whistleblower areas and other areas, but the current Board has
allowed unions and itself to intervene in the confidentiality
process, which hurts employees, allows retaliation against
them, and imperils the integrity of those investigations as
well.
The fourth area I would mention because it is very critical
to employee choice is employer run meetings to instruct and
teach about labor law and labor relations process. This is
extremely important, and the result of it is this Board has
simply disallowed--it is in the process of disallowing these
meetings, which have been going on for many, many decades.
We are now in a position where employee choice is offended
in many areas, and I will stop there. There is more, of course,
in my written testimony. I thank the Committee very much for
its opportunity to speak here today.
[The prepared statement of Mr. Seaton follows:]
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Mr. Burlison.
[Presiding] Thank you. Under Committee Rule Number 9, we
will now question witnesses under the 5-minute rule. I now
recognize myself for the purpose of questions for 5 minutes.
The National Labor Relations Board was created by Congress to
serve as the fair and neutral mediator to help resolve
workplace disputes between employers and employees.
The Biden administration has used the NLRB as a tool,
instead of for employees, for big labor interests. In May 2023,
the NLRB issued a decision in the Lion Elastomers, LLC case
that restores the Board's setting specific standard for
determining whether an employee's abusive conduct is protected
by the NLRA. The decision will make it very difficult to
discipline workers for offensive or abusive conduct while
engaging in ``protected activity'' under the NLRA.
The Board held that to fully protect employee rights,
conduct during protected concerted activity must be evaluated
in the context of that important activity, not as if it
occurred in the ordinary workplace context. Marvin Kaplan
dissented from the decision, highlighting that it would create
significant conflict between the Board law and equal
opportunity laws, prohibiting discrimination, workforce and
harassment issues.
My first question is for Mr. Ring, his being the former
Chairman of the NLRB, I understand that you formerly served, so
you might have some insight on the decision the Lion Elastomers
case, which would, I believe, create potentially opportunities
for people to make racially, offensive, discriminatory or
sexually offensive statements or otherwise, at work without
repercussion. Can you discuss how this creates a direct
conflict between the NLRA and Title 7 of the Human Rights Act--
Civil Rights Act?
Mr. Ring. Yes. Thank you, Congressman. The NLRA--the NLRB
for some reason, as you mentioned, believes that employees who
engage in union activity or other kind of labor relations
activity have to use, or should be permitted to use offensive
conduct and offensive speech.
When I was Chairman, we overturned that setting specific
standards in a case called General Motors, and then this, the
current Board reversed again, and reinstated Lion Elastomers.
Under our Civil Rights laws, and the EOC has weighed in on
this, employers are required to take action when employees are
engaging in offensive conduct that could create a hostile work
environment.
The NLRB then takes the position that that is protected, so
it puts employers in a position of having to decide whether
they could violate the Civil Rights laws, or the EEO laws, or a
violation of the National Labor Relations Act. The conduct that
was permitted under this standard is abhorrent.
Mr. Burlison. In essence, you can be racially--you can
discriminate, you can be offense, you can commit sexual
harassment, so long as you are organizing?
Mr. Ring. Or, worse than that, as long as you are
mentioning wages, hours or working conditions while you are
talking about that.
Mr. Burlison. Thank you. Mr. Seaton, the NLRB issued
decisions to limit the circumstances and times when employees
can decertify or changing representation. Can you discuss how
this will--has made it more difficult for workers and
eliminated their choice whether or not to withdraw from a
union?
Mr. Seaton. Yes, thank you, Mr. Chairman. Yes. A core
principle of course is everyone at the table has said before
the Committee is employee choice. Part of the choice is a
choice to end union representation, and that is the
decertification election process.
That process has been truncated under the current Board
Chair, so that in prior circumstances where this had been
available at the sale of a business in many cases, at the
termination of a collective bargaining agreement, in an impasse
situation, or simply when the employees chose to do so, when a
contract was not in effect.
The Board has truncated this right and has typically
undermined the decision the employees have made in many of
these instances, saying that somehow the employer is always
involved somehow when a decertification takes place. I think
this is a fundamental truck lane trampling on the rights of
employees to make these choices, and it has been a serious
problem under this current Chair.
Mr. Burlison. I believe that employees should have the
choice to remain in the union, or negotiate with their employer
without a union representation, which is why I introduced the
Workers Choice Act. I now recognize Mr. Courtney for 5 minutes.
Mr. Courtney. OK. Thank you, Mr. Chairman, and thank you
for the witnesses for being here. This is our sixth hearing in
the 118th Congress on this Subcommittee that I would really
almost just describe as union bashing. You know, despite the
sort of, you know, talking points that we hear at these
hearings, the fact of the matter is, as Mr. DeSaulnier
mentioned in his outset, the annual Gallup Poll still shows
that labor is in a far stronger position with the American
public than it has maybe 10 or 15 years ago.
Close to 70 percent support for unions. Mr. Seaton,
thankfully--or I appreciate the fact that, pointed out that in
the private sector it is at 6 percent organization, so the
notion that somehow unions are, you know, that the deck is
stacked right now in terms of organizing and labor law in the
U.S. as far as unions are concerned, I think those two numbers
really suggest otherwise.
We have seen two very high-profile union elections just in
recent months where, in my opinion, it really shows that the
process is still balanced. We had the Volkswagen plant in
Tennessee, where the workers, despite a lot of national
pressure, and attention that was being put on it, voted to join
the union.
Conversely, in Alabama, when the Mercedes union election
took place, the opposite result occurred. Again, under this
same NLRB Board that we are hearing so many negative things
about.
Ms. Goldsmith, there was some testimony this morning that,
you know, that the right to a secret ballot is being eliminated
under the Cemex ruling. Again, it sounds like you have been
directly involved with some union elections recently. Can you
sort of clarify, really what that decision says, and the fact
that secret ballots are still very much a protected process if
the parties so choose?
Ms. Goldsmith. Sure. The process of voluntary recognition,
as opposed to a secret ballot election, has always been legal
under the National Labor Relations Act. An employer can agree,
voluntarily, to recognize a union when the union comes and says
we have majority support among the employees.
What the Cemex decision does, it says when a union
presents, requests for voluntary recognition based on majority
support, the employer has two choices. The employer can either
grant voluntary recognition or can file an election petition to
verify whether in fact the union does have majority support.
The union also still has the ability to file its own
election petition, and in practice on the ground since Cemex
was decided, that is what we are actually seeing is unions do
file those election petitions, and/or the employer is filing
its own election petition. There are distinct advantages to
having certification following an election for the union
because that, for example, there is a legal advantage that only
flows from certification, which is you have a protected time
period to try and negotiate a first contract with the employer.
The notion that Cemex has somehow eliminated secret ballot
elections, I think is frankly absurd and totally inconsistent
with what the Board said in the case.
Mr. Courtney. We also just heard about the Lion Elastomers
case where again, there is a claim that that ruling is at odds
with the Civil Rights law. Again, Mr. Chairman, for the record
I would ask to be admitted a letter from a Coalition of Civil
Rights organizations, actually in support of the Elastomers
decision, and ask that be made part of the record.
Mr. Burlison. Without objection.
[The information of Mr. Courtney follows:]
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Mr. Courtney. Again, could you comment, again, on that
ruling, which actually was about restoring a 40-year precedent,
which I thought some of the witnesses this morning were all
about, in terms of trying to respect precedent, in the National
Labor Relations Act?
Ms. Goldsmith. That is correct. Lion is one of several
cases where the current Board is actually restoring the law as
it was in effect for decades until the Trump Board. What Lion
does is say that those Section 7 rights are important, and
under cases, lines of cases that were decided up until the time
of the Trump Board, the Board had held that when employees are
engaged in protected activity under Section 7, courts and the
Board recognized that sometimes things get heated.
When a court or the Board is considering speech in that
context, it has to take into account the Section 7 context.
Mr. Courtney. Great. Thank you.
Ms. Goldsmith. Thank you.
Mr. Courtney. I yield back.
Mr. Burlison. Thank you. I now recognize Mr. Allen for 5
minutes.
Mr. Allen. Thank you, Mr. Chairman. Mr. Ring, in 2023 the
National Labor Relations Board issued the Joint Employer Final
Rule, which upends the traditional direct and immediate control
standard, and creates an expansive, vague and costly standard.
In March 2024, a Federal District Court struck down the
rule because it exceeded the NLRB's authority. Also in 2024,
the House and Senate passed a congressional Review Act
Resolution to nullify the rule. Despite a Federal Court
striking down the rule, and Congress expressing its
disapproval, the NLRB decided to appeal the Court's decision,
striking down the Joint Employer Rule.
As former NLRB Chairman, would a bipartisan and bicameral
rejection of a rule, along with a Court decision knocking the
rule down, have been taken into consideration when deciding
whether to pursue an appeal?
Mr. Ring. Of course it would. I will just add that there
was a very similar joint employer standard that was adopted by
the Board during the Obama years that was struck down by the
D.C. Circuit at least twice, so this standard that they have
been pushing is DOA on a number of Courts. Why they continue to
push it is puzzling.
I always viewed my role at the Board as trying to color
within the lines. We saw our role as not having a particular
agenda, but rather to enforce the statute and interpret the
statute the way Congress had written it, as interpreted by the
courts. This Board does not seem to follow that same approach.
Mr. Allen. I would like to emphasize here that I have a
bill, the Employee Rights Act, which clarifies that two or more
employers must have actual, direct, and immediate control over
employees to be considered joint employers, and will protect
the franchise model by codifying the long standard definition
to prevent franchise owners from becoming corporate middle
managers.
Mr. Seaton, during Chairman McFerran's tenure, the Board
has revised election rules for union representation, and
decertification elections to diminish employees' rights to
refrain from union activity. Can you discuss some of these
basic changes made by this Board?
Mr. Seaton. Yes. Thank you, Representative. Yes, the
changes are many throughout the procedural rule, and they, as I
said in the earlier comments I made, they truncate employee's
rights in many ways. Now, employees do not have a direct role
in elections, but they are important for their rights, and
those rules have been modified in a way that makes it very
difficult to object to the nature of the unit proposed.
It essentially nullifies the opportunity to challenge the
inclusion or exclusion of certain employees within the
bargaining unit, and we have found that in many cases that I
have looked at, you simply do not have an opportunity to make
your point in these proceedings in a way that will affect the
actual outcome.
Instead, an election takes place, and a union may in some
cases be recognized as the bargaining agent, where employees
really have not had a true opportunity to make their voices
heard in the matter, nor has the employer for that matter.
Mr. Allen. Um-hmm. Well, let me followup with this.
Independent contractors are not employees under the National
Labor Relations Act. In 2023, the NLRB issued a decision in the
Atlanta Opera case that made it easier for the Board to deem
independent contractors to be employees.
Your written testimony notes that this decision is another
assault on worker choice. Can you explain how the Board's
efforts to undermine an individual's right to be an independent
contractor impacts that worker's choice?
Mr. Seaton. Yes. Thank you again, Representative. Employees
service providers, I will call them generically, have a choice
as to whether to be employees or independent contractors. That
is a very important right under our Constitution, a livelihood
right, and the Board has truncated and restricted the arena of
choice for employees by essentially making it very difficult to
choose to be an independent contractor.
In these decisions, and many others, and in efforts to
promote the Joint Employer Rule that you mentioned also, it has
the effect of cutting off that opportunity for employees. I
think it is a fundamental right to choose those things, and I
think that this Board actually has restricted that right.
Mr. Allen. Right. Thank you, and again the Employer Rights
Act would create consistency and clarity across Federal
statutes with respect to employee and independent contractor
status. The ERA provides essential protections for workers'
rights, choices, and freedoms for the record. I have additional
questions, which I will submit for the record, and with that my
time is out, and I yield back, Mr. Chairman.
Mr. Burlison. Thank you. The Chair now recognizes Mrs.
Hayes for 5 minutes.
Mrs. Hayes. Thank you and thank you to our witnesses for
your testimony today. Last year, 16.2 million workers were
represented by a union, with the total number of workers in
unions growing by 191,000. However, it is important to keep
these numbers in context.
The percentage of workers represented by a union in 2023
decreased slightly from 11.3 percent to 11.2 percent. This is
now the sixth hearing in this Subcommittee, during the 118th
Congress on the topic of unions and the freedom of workers to
organize. That is one hearing for every 1 percent of the
private sector workers represented by a union in 2023.
The right to organize, collectively bargain, and form a
union has been the law for nearly a century. Despite this
longstanding precedent, many employers continue to commit
unfair labor practices because the benefits of union busting
outweigh the penalties for breaking the law.
In Fiscal Year 2023, charges of unfair labor practices were
up 10 percent, and in the first 6 months of Fiscal Year '24
unfair labor practice charges rose by 7 percent. Until
recently, employers faced no monetary penalty for illegally
retaliating against workers for exercising their right to
organize and form a union.
If a worker was fired for participating in a union drive,
they were entitled to back pay following the resolution of a
case before the NLRB and could have their job reinstated at
that point. The employer would have to provide the money, the
employer would have to provide the money they would be paying
had they not broken the law, but the worker could face
additional negative consequences beyond lost wages.
Without a source of income, or benefits from the employer,
a worker may rack up credit card debts, miss rental or mortgage
payments, and deal with unexpected medical expenses. In
December 2022, the NLRB issued a decision in Thryv, Inc.,
allowing the Board to seek a make whole remedy for an affected
worker for all direct or forceable pecuniary harms due to an
unfair labor practice.
My question is for Ms. Goldsmith. In your experience, when
workers can only win back pay after suffering from an unfair
labor practice by employers, are they truly made whole?
Ms. Goldsmith. Thank you for the question. When an employee
is fired, let us say for participating in union organizing,
they might get a back pay remedy. It might be years after the
fact, long after they have gone on to other jobs. Long after
they have moved on with their lives, and that back pay remedy
will also be reduced based on whatever earnings they have had
in the meantime.
They can also experience all kinds of other direct losses,
such as medical expenses they might have to pay out of pocket
because they lost their health insurance when they got fired,
or job search expenses that are connected to having been fired.
The decision in Thryv acknowledged that all of those are part
of making a person whole if they have suffered this kind of
injury as a result of the employer's unlawful act.
Thryv, I will add, just pointed out that those kinds of
remedies have long been recognized in many cases decided by the
Board going back decades, and it just kind of collected them in
one place.
Mrs. Hayes. Thank you. In your testimony, you mentioned
that in Fiscal Year '23, the Board recovered almost 57 million
in back pay for employees whose rights were violated. While
that is an impressive figure, it strikes me as a sign that many
unscrupulous employers are willing to just provide back pay to
prevent workers from organizing.
Will the Board's decision in Thryv create a more meaningful
deterrent against unfair labor practices in your opinion?
Ms. Goldsmith. I think it contributes to being a more
effective deterrent. The facts on the ground are that employers
are willing to violate the Act because the remedies are quite,
quite weak, honestly. The more those remedies can actually act
as a deterrent, the better off. Employers are willing to take
the chance of violating the Act because in the short term, and
the facts on the ground, they get the result they want, which
is to shut down the union organizing effort.
Mrs. Hayes. Thank you. I have one more question, but I only
have 10 seconds left, so I am going to yield back, so that my
time does not expire. Thank you for being here today. I
appreciate it.
Mr. Burlison. Thank you. I now recognize Mr. Walberg for 5
minutes.
Mr. Walberg. Thank you, Mr. Chairman. Thanks to the panel
for being here. Often, when people think about labor policy,
they do not think about it in the context of higher education.
As we know, college campuses have seen an uptick in organizing
over the past several years, with many labor unions expanding
to represent graduate instructors and other campus workers.
That has contributed to additional tension on college
campuses, which has been magnified since October 7th. I want to
highlight a Wall Street Journal opinion piece from March
entitled, ``My Union Dues Are Being Used Against Israel.'' The
article details how Jewish graduate students at MIT are being
forced to pay into a union that openly supports BDS, also with
union representative that has been seen and witnessed by these
students taking part in demonstrations calling for the
destruction of Israel and making antisemitic statements.
These MIT graduate students had to file an EEOC complaint
arguing the union was discriminating against them based upon
their cultural heritage and identity, and it failed to provide
a religious accommodation to have their union dues deferred.
Carrying on from a previous form of questioning, Mr. Ring, in
2023 the NLRB issued a decision in the Lion Elastomers case
that protects union supporters who make racially offensive,
discriminatory and sexually offensive statements, or otherwise
engage in offensive conduct.
Based on the Board's decision, would a union calling for
global Intifada, and the destruction of Israel, or a worker who
makes antisemitic tropes against a fellow member be protected
speech?
Mr. Ring. Thank you, Congressman. I do not know the answer
to that, but I think Lion Elastomers case, and the Board's
current stance on this issue would make it much less clear that
it is not. I think under Board law, those type of things
should--and the longstanding Board law, those types of things
should not be protected by the Act.
They are outside of the workplace issues, and they should
not be protected. This Board has signaled that they are willing
to embrace that type of conduct that is protected or speech
that is protected, as long as it has some relation that they
can point to something in the workplace.
Some supervisor at some point in time, had made a comment
that was perceived as discriminatory. That makes it a workplace
issue, and therefore that would be protected, so it is a
slippery slope.
Mr. Walberg. Again, an interesting division between NLRA
and Title VII, which is a huge challenge. What recourse do
graduate students currently have if they feel their union dues
are being used in a way that unfairly represents them? Is there
any recourse?
Mr. Ring. Yes. This is the difficulty for the union
members. There really is not a lot of recourse, and has been
stated here before, the normal recourse is to decide to
decertify your union, which is very, very difficult under the
current system.
Mr. Walberg. From your experience do you think Congress
meant for graduate students to be employees under the National
Labor Relations Act?
Mr. Ring. I personally do not.
Mr. Walberg. I do not think so either. Mr. Chairman, I
would like to submit for the record a recent report published
by the Institute of American Worker, highlighting how Chair
McFerran has allowed harassment in the workplace.
Mr. Burlison. Without objection.
[The information of Mr. Walberg follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Walberg. Thank you. With that I yield back.
Mr. Burlison. OK. We now recognize Mr. Scott for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Ms. Goldsmith, do
workers have a private right of action under the NLRA?
Ms. Goldsmith. No. They do not.
Mr. Scott. What does that mean for their ability to have
their rights vindicated?
Ms. Goldsmith. Laws like Title VII and the FLSA provide
private rights of action for individuals. The individual can
take their own case to Court, prosecute their case, whatever.
Whatever they allege violated the law, subject to exhaustion
under Title VII. Under the National Labor Relations Act, the
worker can only bring their complaint to the agency.
Agency staff investigates their complaint, decides whether
or not to bring that case forward.
Mr. Scott. Does that change, is the vigorous nature of
that, the cases, depend on the administration?
Ms. Goldsmith. Down at the regional level, I think it does
trickle down to the regional level how cases are processed, and
what gets attention. I will say that at the regional level, the
staff are very professional and very thorough, and they work
really hard to work up whatever charges are brought to them.
Mr. Scott. In that light, can you comment on the staffing
level at the NLRB and whether or not they have sufficient
resources?
Ms. Goldsmith. Yes. What we have seen in recent years is
the staff are overwhelmed at the regional level. There has been
a very dramatic increase in caseload and that has not been
accompanied by a comparable level of funding, and many regions
have lost staff and have not been able to replace them. That is
really causing very difficult delays, particularly in
processing the unfair labor practice charge cases.
Mr. Scott. Can you say why it is critical that the NLRB
have all five Board seats filled?
Ms. Goldsmith. I think what is critical is that the Board
should always have a quorum, and what we saw in the late Bush
administration, and the early time of the Obama administration,
was that the Board actually dropped down to two members which
was less than a quorum, and that led to absolute gridlock.
Cases were languishing for very long times. Those people
simply did not have the capacity to process the cases that were
before the Board at the time. Then the U.S. Supreme Court said
that the two-member Board decisions were invalid because the
Board did not have a quorum.
I would say that the really important thing is to make sure
that the Board always has a quorum.
Mr. Scott. You commented on the insufficiency of penalties
for unfair labor practices. Can you also comment as to what the
level of penalties are as a deterrent for unfair labor
practices?
Ms. Goldsmith. Well, there are no penalties per se in the
Act, which is one of the problems in that the Act does not have
a lot of deterrent power because it is limited to providing
make whole relief.
Mr. Scott. As you indicated, make whole could be nothing if
the person got another job?
Ms. Goldsmith. Right.
Mr. Scott. In fact, if they got a good union job, they are
probably making more than they were making at the plant they
got fired from.
Ms. Goldsmith. Right. We often see that workers, once you
calculate the interim earnings, their back pay may be really
negligible. Then an offer of reinstatement may be a couple of
years after a worker was fired. They may not be interested in
reinstatement anymore because they have moved on with their
lives.
Mr. Scott. What kind of deterrent is provided with that
kind of system, whether than a penalty that would actually
punish unfair labor practices?
Ms. Goldsmith. Right. It has long been recognized that the
remedial structure of the Act, as it stands, is not an
effective deterrent to unfair labor practices. Those many
employers are just willing to even flagrantly violate the Act
because they know that they are going to get what they want in
the short term, and there will not be really any serious
consequence.
Mr. Scott. How often does that happen?
Ms. Goldsmith. I mentioned some statistics in my written
testimony that it happens with alarming frequency in election
cases.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Burlison. Thank you. The Chair now recognizes our
Chairwoman, Dr. Foxx, for 5 minutes of inquiry.
Mrs. Foxx. Thank you, Mr. Chairman. Mr. Ring, this
Committee has extensively investigated the NLRB's misconduct,
and procedural irregularities in the administration of mail
ballot elections. During the investigation one thing became
clear, the NLRB consistently failed to administer mail ballot
elections properly.
On June 7th, the NLRB Inspector General released an audit
of NLRB mail ballot elections with similar findings. As former
NLRB Chairman, what would your response have been to the
misconduct, and procedural irregularities that have been
discovered in the administration of mail ballot elections?
Mr. Ring. Well, thank you, Chairwoman Foxx, and thank you
for your leadership when I was Chairman, I appreciate it very
much. The IG report confirms something I think we've all known,
and that is that mail ballot elections are not as reliable as
the manual elections that have been held in person, and that is
because these mail ballot elections are difficult to
administer, and susceptible to irregularities.
If I were confronted with the IG report, and with the work
that this Committee has done on the irregularities with the
manual elections, I would immediately stop mail ballot
elections until we figured out what was the problem, what the
problem was.
During COVID we had to implement mail ballot elections
because we had no choice. That revealed a number of issues with
mail ballot elections that this Board has been slow to make
right back to the solely using manual elections, except in
extraordinary circumstances. I would stop that until we could
fix it.
The other thing I would say is, as Chairman, I viewed the
role as making sure that the public, and our stakeholders had
confidence in our process. It is important that the Chair, I
always thought, made clear to the public what they were doing,
how they were going to fix the problem, so the public could
have confidence in the integrity of the Board's processes.
Mrs. Foxx. Thank you very much. Ms. Stock, your written
testimony notes that it is the NLRB's responsibility to
administer the National Labor Relations Act by interpreting the
law, and ``coloring in the lines,'' not changing the law. What
is an example that Chairman McFerran's board changing the law,
rather than merely coloring in the lines?
Ms. Stock. Thank you, Chairwoman Foxx. There are a number
of decisions in which this Board has done that. Key examples
are Cemex and the Tesla case. In Cemex, the Board created a new
rule that effectively eliminates the secret ballot election.
The Board has essentially amended the text of the NLRA so as to
trigger what is called major question doctrine.
Under that doctrine, an agency may not make an
adjudication, or issue a rule that is contrary to, or beyond
the statute. Only Congress has the authority to make that type
of change. Similarly, in its Tesla decision, which was a
decision that changed decades long old rules about the ability
of employers to have a uniform policy, the Board completely
changed the rule, and said that any uniform policy that could
interfere in any way with an employee's right to display union
insignia is unlawful.
Thus, making every facially neutral nondiscriminatory
uniform policy unlawful.
Mrs. Foxx. Thank you. Mr. Seaton, under Chairman McFerran's
leadership, the Board has issued numerous decisions that tip
the scales in favor of unions over the rights of employees and
employers as Ms. Stock is alluding to.
Can you discuss whether Congress enacted the National Labor
Relations Act, and created the NLRB to serve labor union
interest?
Mr. Seaton. Thank you. Thank you, Chair Foxx. I would say
no, that is not what they did. It is only in part what they
did. They created a system that is designed to be balanced to
create unity in the country to avoid industrial turmoil, and to
give us a system of checks and balances in which employee
rights are central, union rights are recognized, and employer
rights are recognized.
I am afraid we have tipped the balance significantly under
the current Chair in the wrong direction.
Mrs. Foxx. Thank you very much. Mr. Chairman, I ask to
enter into the record letters from the following organizations,
highlighting NLRB Chairman McFerran's disastrous record. The
Coalition for a Democratic Workplace, the Institute for the
American Worker, and the National Right to Work Committee.
Mr. Burlison. Without objection.
[The information of Mrs. Foxx follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Burlison. The chair, pursuant to previous order, the
Chair declares the Subcommittee in recess, subject to the call
of the Chair for votes on the House floor. We will reconvene
immediately following the last vote of the series. Please
return to the hearing as quickly as possible, so the
Committee--until then the Committee stands in recess.
[Recess.]
Chairman Good. The Subcommittee will reconvene and come to
order following our recess. I recognize Ms. McBath for 5
minutes.
Mrs. McBath. Well, thank you so much. I appreciate it, Mr.
Chair, and Ranking Member DeSaulnier, and your staff, and to
our witnesses today. Thank you for being with us today. I have
read your testimoneys. This is the sixth anti-worker hearing
held by the Majority this Congress, and we had the fifth just 3
weeks ago.
I am sure as the surge of successful organizing continues
around the country, we will continue to see more efforts to
undermine Americans' rights in the workplace. Regardless of
what may be said at these hearings, or how hostile to unions
the Majority may be, the first section of the National Labor
Relations Act clearly states that it is, and I quote, ``The
policy of the United States to encourage the practice of
collective bargaining and freedom of association.''
That is opposite of what we are seeing from the Majority
this Congress. Instead, we see efforts to change the status
quo, alter the rules, and make it as difficult or uncomfortable
as possible for working men and women in this country to
exercise their rights. My colleagues claim outreach by the
Biden administration but applauded when former President Trump
attempted to issue more anti-worker rules at the National Labor
Relations Board than had been issued in the 30 years preceding
his time in office.
The fact of the matter is that this administration is
expanding the role of workers on the job and truly living up to
the original intent that Congress had when it comes to
collective bargaining. Instead of changing the rules to make it
harder for workers to organize and more difficult for companies
to voluntarily recognize a union, we should be ensuring that
every American can freely exercise their rights in the
workplace without the fear of being fired and losing their
livelihood.
The continued villainization of organized labor before this
Committee is simply wrong, and it is critically important that
we fully fund the National Labor Relations Board, pass the PRO
Act, and fight back against these misguided attacks on working
families. American families deserve better, and I yield the
balance of my time.
Chairman Good. Thank you, Ms. McBath. All right. I now
recognize myself for 5 minutes. Mr. Seaton, Chair McFerran's
Board authored a concerning decision, as I am sure you know,
that protects employees who harass others. The Lion Elastomers
decision permits offensive and disrespectful conduct when it is
related to union organizing. The Lion decision restored the
setting specific standard. Can you explain the history behind
the standard and what it means?
Mr. Seaton. Thank you, Mr. Chairman. Yes. The standard that
is being utilized in this case is one which would permit, I
guess what we would call, misconduct, against other employees
on the part of union partisans in the workplace. Within limits,
that is an understandable rule.
What has happened in this case with respect to the current
Chair's activity at the Board, is that the rule has been
extended to the point where insults that are basically sexist,
discriminatory, racist, homophobic, those attacks can be
permitted if they occur within distance of any union organizing
activity. That standard is I think an unfortunate one.
It is not one consistent in my view with the purpose of the
National Labor Relations Act. It runs afoul of Title VII, and
it puts employers at risk because they are unable to discipline
appropriately in the workplace in situations where they should
be able to, and it essentially enables bigots in the workplace.
Chairman Good. Yes. It would make it harder for employers
to discipline their employees for abusive or profane behavior,
and it would help foster a hostile work environment, which I
think actually that is what union organizers want. They want a
hostility toward the employer, toward management, toward the
organization, toward the company, that is why it is a very
unhealthy thing, I would suggest generally.
The Lion decision puts the National Labor Relations Act in
conflict with civil rights law, like Title VII7 of the Civil
Rights Act of 1964, which as you know, prohibits workplace
discrimination based on race, color, religion, sex, national
origin, and under this law employers can be held liable if they
permit discriminatory behavior, including harassment.
Would you agree then with the premise that Federal
discrimination law makes an exception for harassment if it is
part of union activity? Do you think there is an exception for
that?
Mr. Seaton. No. I do not believe Title VII creates any such
exception, so there is a real conflict here between the
agencies and the statutes, and I think in this case that is not
how I view the National Labor Relations Act in any event. I
think that is an improper reading of the statute, and the
rights it confers, and I think the Board should retreat from
this extreme position.
Chairman Good. Yes. Going far beyond, of course, or outside
of what Congress intended of course, as has been stated by our
witnesses already today. For--to change the subject on secret
ballots, for 90 years the primary manner of exercising employee
rights under the NLRA has been the opportunity to vote in NLRB
conducted secret ballot elections, which determines whether the
employees have union representation.
The 2023 decision in Cemex Construction materials Pacific
case undermines this right, despite again Federal Courts, and
NLRB, long preferring the use of secret ballot elections to
determine whether the majority of employees support union
representation. Can you discuss the Cemex case, how it
undermines the NLRA?
Mr. Seaton. Yes, Chairman, thank you. What has been said
earlier in the witness testimony is accurate, and that is that
though the decision does not quite undermine, it does not quite
overrule secret ballot elections. It goes a long way toward
undermining them, because it allows what we call card shack,
essentially union promoted majorities that are really not
majorities at all to be recognized by an employer under many,
many circumstances.
It puts the burden on the employer to respond to a claim of
union majority status when that should be tested by a genuine
secret ballot election. That is extremely important when we
have what I call the right to lie rule, applicable to union
activity in the workplace because the unions can promote
themselves in the workplace with lies, and they do, frequently.
It is not that employers are blameless. In many cases they
have to be sanctioned too, but employee partisans of unions can
lie, and the result of that is you have to have a secret ballot
election with real campaigning to give employees information to
make a fair and genuine decision on whether they want to be
represented or not.
Chairman Good. Secret balloting is a foundation of all free
and fair elections, are they not? Thank you very much. I yield
the remaining amount of my time and will recognize
Representative Houchin for 5 minutes.
Ms. Houchin. Thank you, Mr. Chairman. Thanks to the
witnesses for coming to testify today. You have been here a
long time. We have had a thorough discussion on the abuses of
the National Labor Relations Board many times already this
Congress, so I am going to just jump right in.
Mr. Ring, last year the NLRB issued the Joint Employer
Final Rule, which upends the traditional direct and immediate
control standard, and creates an expansive and vastly costly,
very vague standard. This past March a Federal District Court
struck down the rule because it exceeded NLRB's authority. The
House and Senate have also passed a congressional Review Act
resolution to nullify the rule this year.
Despite a Federal Court striking down the rule, and
Congress expressing its disapproval, the NLRB decided to appeal
the Court's decision, striking down the Joint Employer Rule.
Mr. Ring, as a former NLRB Chairman, would a bipartisan, and
bicameral rejection of a rule, along with a Court decision
knocking down the rule, would have been some of your
considerations on whether or not to pursue an appeal?
Mr. Ring. Thank you for the question. I believe that we, as
an NLRB member, you are supposed to stay within the confines of
the statutes, and if Congress bicameral, and with one of those
changes being the party of my party, if rejected the joint
employer standard repeatedly because courts have struck down
the standard before, I think that that would make me rethink,
go back to the drawing board and think about what the standard
should be.
I will say when I was Chairman, we issued in 2020 a joint
employer standard that was consistent with account of law, was
consistent with what the courts had asked for, and has not been
overturned, so I think that is--I think it is perplexing why
the Board continues to appeal that decision.
Ms. Houchin. It looks like the Board's choice to spend a
considerable amount of time in these overreaching decisions
that have been described by the Federal Courts as illogical,
irrational, and nonsense, have also resulted in the NLRB
wasting funds and wasting time, and wasting man hours.
Their irrational focus on the Joint Employer Rule has
resulted in case backlogs at the NLRB that have increased to
17,682 in Fiscal Year 2023, an increase of approximately 8,500
since Fiscal Year 2020. Ms. Stock, can you discuss the Board's
mismanagement of the case processing in its current backlog
status?
Ms. Stock. Yes, thank you very much. The Office of
Inspector General issued a report in 2024 on performance-based
staffing at the NLRB. The report found that despite a decline
in case intake, the time to issue complaints from the filing of
the charge increased.
The NLRB Inspector General found that the methodology that
the NLRB used to assign field staff did not meet government
wide guidance, lacked an appropriate system of internal
controls, and as a result the agency is at risk of not
allocating FTEs in the field offices in a manner that would
ensure that meets its goals and objectives.
It is confirmed by the OAIG staffing report, the increase
in case processing time and backlogs are not due to an increase
in case intake, but a failure to properly manage its caseload.
The case backlog figures concern mismanagement, both on the
Board side, as well as the General Counsel side. In 2019,
former Chair John Ring, and former General Counsel Peter Robb,
made reducing case backlogs a priority.
In 2019 they did reduce the case backlog. Under the current
Board and General Counsel, the backlog started increasing
immediately, and reached 13,513 in fiscal 2022 when the case
intake was at its lowest, one of its lowest in NLRB history.
Ms. Houchin. My time is expired. Thank you so much.
Chairman Good. Now, I would like to recognize the Ranking
Member from California for 5 minutes.
Mr. DeSaulnier. Thank you. Ms. Goldsmith, you have been
representing clients in front of the Board for 20 years. Is,
from your perspective, is the current Biden administration
Board radically changing policy or are we just, the ebb and
flow of 20 years, seeing different Boards from different
administrations, from my perspective, and certainly I think
from this side of the aisle's perspective, the previous
administration, Trump Board was the more extreme.
We are just trying to get that balance I talked about in
our opening statement, which with all due respect, we can have
that good debate about employer rights balancing employee
rights. From my perspective in history, given our inequality
and other issues, our diminishing middle class, are we just
going back through that from your perspective of 20 years of
being in front of the Board?
Ms. Goldsmith. Thank you for that question. In many
instances where the current Board has overruled decisions of
the Trump Board, the current Board is restoring the law that
had been in effect, in some cases, for decades before the Trump
Board rushed to overrule that law.
By contrast, this Board has been very deliberative in
deciding whether or not to overrule prior decisions. If you
look at the cases where the Trump Board was overruling prior
decisions, they were overruling lines of authority going back,
in some instances to the 1940's, that had been repeatedly
affirmed in the courts.
To take just a couple of examples, Mr. Ring has been
discussing the General Motors case decided under the Trump
Board. That case overturned decades of Board precedent, going
back to the 40's, about situation-specific standards for when
employees allege misconduct in the context of protected
activity becomes unprotected.
The Trump Board actually reached out to overrule lines of
authority that had nothing to do with the facts of the case. If
you want to talk about a Board that was in a hurry to overrule
cases it did not like, that was what was happening at the Trump
Board. The Biden Board in Lion Elastomers went back to those
old lines of authority that have stood the test of time in the
courts.
To take another example, this Board recently decided a case
called Stericycle about workplace rules, and it overruled the
decision of the Trump Board called Boeing Company, in which the
Trump Board actually overruled the decision of the George W.
Bush Board in 2004, which set the standard for evaluating when
work rules would reasonably tend to chill workers' exercise of
their Section VII rights.
Again, Lutheran Heritage's approach, that 2004 case, was
upheld in every court to consider the matter, yet the Trump
Board had reached out to overrule it in Boeing. The Biden
Board's decision in Stericycle reinstates that standard from
2004, clarifying that rules should be evaluated from the
perspective of a reasonable employee.
Yes, those are some examples of how the Biden Board is
resetting back to what the law had historically been.
Mr. DeSaulnier. Let us talk about the previous questions
about just not just the regulations, but how they are enforced.
An Economic Policy Institute calculated that in 2023 there was
only one full-time NLRB employee for every 90,672 workers under
the Board's jurisdiction.
To put that in context, that is 20,000 more workers per
NLRB than when Trump first took office, and 10,000 more NLRB
employee than when Trump took, lost office. It is not just the
Heritage and the Koch Brothers' 30-year attack on workers'
rights in the Environmental Protection Agency, in terms of
regulations and statutes, it is the money.
We could be more efficient. Again, we could have that
argument about how we--I am a liberal libertarian I like to
say. I do not think government is a good enforcer, necessarily,
of ethical behavior, but not funding the department also has
consequences, and it empowers employers who are not ethical to
only have allegiance to the bottom line.
Could you speak to your experience in terms of just
efficient enforcement of the regulations?
Ms. Goldsmith. Absolutely. It does not serve anyone's
interests in this system for the agency to be underfunded and
unable to carry out its mission. That is not good for workers,
that is not good for unions, that is not good for employers. I
think everyone in this system has a significant interest in the
agency being able to do its job.
Mr. DeSaulnier. Thank you. I yield back.
Chairman Good. Thank you, Mr. DeSaulnier. I now recognize
myself for closing remarks. Today we have heard how Chairman
Lauren McFerran's tenure at the National Labor Relations Board
has diminished, and dismantled the workers' rights, and
disregarded harmed employers, as we have heard.
My apologies, I am going to let you go ahead and finish,
and do your closing remarks first, Mr. DeSaulnier. I went from
your questions right to closing, so.
Mr. DeSaulnier. I am fine with either. I can be the last
speaker. We disagree on policy, but we do not disagree
personally, which you know, I think the way we should work in a
civilized democracy or republic. Thank you, Mr. Chairman. Thank
you to our witnesses for your testimony today.
Throughout American history, labor unions have served as
engines of economic growth and positive change for the working
class. They are human institutions, just like corporations, and
they are imperfect, but they have served a very important role
in the success of this country.
The surge in support for unions among American people is
undeniable. The workers across the Nation are united to
advocate for higher wages, better benefits, and safer
workplaces. Under President Biden's and Chair McFerran's
leadership, the NLRB has reinstated precedent and restored
balance for workers. It is not an extreme Board from my
perspective, or from a historical perspective.
These actions aim to prevent employers, or I should say,
unethical employers, not all employers, from infringing on
workers' rights without repercussions. This is in contrast with
the Trump-era NLRB, and I ask unanimous consent to enter into
the record an October 2020 report from the Democratic Committee
Staff entitled, ``Corruption, Conflicts, and Crisis: The NLRB's
Assault on Workers' Rights Under the Trump Administration.''
This staff report outlines various anti-worker attacks by
the Trump-era Board.
Chairman Good. Without objection.
[The information of Mr. DeSaulnier follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. DeSaulnier. Unfortunately, this is the HELP
Subcommittee's sixth hearing this Congress, and the second one
in less than a month that attacks workers' rights to organize
and collectively bargain.
The American people deserve better. We should instead be
focusing on strengthening those rights and fostering economic
growth for everyone, from the bottom up and the middle out. I
want to thank all the witnesses for being here, and I yield
back.
Chairman Good. Thank you. I now recognize myself again for
my closing remarks and appreciate the grace of our Ranking
Member here. Today again, we have heard how Chairman Lauren
McFerran's tenure at the National Labor Relation's Board has
diminished and dismantled worker's rights and disregarded
harmed employers.
As we have heard today, she holds the distinction of
providing over the most partisan NLRB in history. This Board
can claim all of the ing dubious actions during her time. They
have expanded the definition of joint employer, so that more
workers can fall under collective bargaining agreements,
attacked independent contractor status to keep more workers
classified as employees, and thus able to be unionized.
Dismantle the right to secret ballot elections, protected
harassment as appropriate behavior, and required employers to
continue deducting union dues even after the expiration of a
collective bargaining agreement. No doubt the courts will
ultimately overturn many of these unlawful decisions, but
Congress should not rely solely on the judicial branch to
confront this overreach.
I hope my colleagues in the Senate will take the time to
thoroughly review and consider Chair McFerran's legacy, while
they determine her ability to continue her position on the
Board. I want to thank again our witnesses for taking time to
travel here today, and to share your expertise, and to bear
with us through the disrupted hearing for Committee votes, our
floor votes, and without objection there being no further
business, this Subcommittee stands adjourned.
[Whereupon, at 11:55 a.m., the committee was adjourned.]