THE NATIONAL LABOR RELATIONS BOARD:

RECENT TRENDS AND THEIR IMPLICATIONS

HEARING

BEFORE THE

SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

 

HEARING HELD IN WASHINGTON, DC, SEPTEMBER 19, 2000

 

Serial No. 106-123

 

Printed for the use of the Committee on Education

and the Workforce


Table of Contents *

opening statement of chairman john boehner, subcommittee on employer-employee relations, committee on education and the workforce *

Statement of the honorable dale kildee, 9th district of Michigan, U.S. House of Representatives *

STATEMENT Of LEONARD PAGE, general counsel, national labor relations board, Washington, d.c. *

STATEMENT OF CHARLES I. COHEN, partner, labor and employment law practice, morgan, lewis & bockius, llp, Washington, d.c. (TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE) *

STATEMENT OF JAMES COPPESS, ASSOCIATE GENERAL COUNSEL, AFL-CIO, WASHINGTON, D.C. *

STATEMENT OF G. ROGER KING, PARTNER, JONES, DAY, REAVIS & POGUE, COLUMBUS, OHIO (TESTIFYING ON BEHALF OF THE SOCIETY OF HUMAN RESOURCE MANAGEMENT) *

APPENDIX A WRITTEN STATEMENT OF CHAIRMAN JOHN BOEHNER, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

appendix b - written statement of leonard page, general counsel, national labor relations board, washington, d.c. *

appendix c - WRITTEN TESTIMONY OF CHARLES I. COHEN, PARTNER, LABOR AND EMPLOYMENT LAW PRACTICE, MORGAN, LEWIS & BOCKIUS, LLP, WASHINGTON, D.C. *

Appendix d - WRITTEN STATEMENT OF JAMES COPPESS, ASSOCIATE GENERAL COUNSEL, AFL-CIO, WASHINGTON, D.C. *

APPENDIX E - WRITTEN STATEMENT OF G. ROGER KING, PARTNER, JONES, DAY, REAVIS & POGUE, COLUMBUS, OHIO *

Appendix f submitted for the record, testimony clarification from g. roger king, partner, jones, day, reavis & pogue, Columbus, ohio *

 

 

 

HEARING ON THE NATIONAL LABOR RELATIONS BOARD:

 

RECENT TRENDS AND THEIR IMPLICATIONS

 

_________________________

 

 

Tuesday, September 19, 2000

 

 

U.S. House of Representatives,

 

Subcommittee on Employer-Employee Relations,

 

Committee on Education and the Workforce,

 

Washington, D.C.

 

 

 

 

 

 

 

The subcommittee met, pursuant to notice, at 10:30 a.m., in Room 2261, Rayburn House Office Building, Hon. John A. Boehner, Chairman of the Subcommittee, presiding.

Present: Representatives Boehner, Petri, Ballenger, Fletcher, Andrews, Kildee, Tierney, and Holt.

Staff present: Amy Cloud, Staff Assistant; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Patrick Lyden, Professional Staff Member; Ben Peltier, Professional Staff Member; Michael Reynard, Media Assistant; Deborah Samantar, Office Manager; Shelby Hagenauer, Assistant to the Workforce Policy Coordinator/Counsel; Brian Compagnone, Minority Staff Assistant; Camille Donald, Minority Legislative Associate; and Peter Rutledge, Minority Senior Legislative Associate.

Chairman Boehner. Good morning. A quorum being present, the Subcommittee on Employer-Employee Relations will come to order. We want to welcome all of our witnesses and our guests this morning and appreciate the fact that all of you have taken the time to be here with us.

Under Committee Rule 12(b) opening statements are limited to the chairman and to the ranking minority member. And if other members have statements, they may be included in the record.

And with that, I ask unanimous consent for the hearing record to remain open for 14 days for witnesses' statements, testimony, and other material to be submitted for the record. Without objection, so ordered.

 

opening statement of chairman john boehner, subcommittee on employer-employee relations, committee on education and the workforce

Today's hearing addresses the National Labor Relations Board. In light of numerous recent Board decisions that have overturned well-established labor law, the subcommittee will discuss some of these cases and their implications as well as the issue of precedent, in general. We're also grateful to Board general counsel Page for appearing to discuss, among other issues, the current state of Board operations, particularly with respect to the reduction of case backlog.

The issue of delay in decision-making is also a great concern. Let me say that I think one of that most of us in this room appreciate the improved tone at the NLRB since the arrival of Chairman Truesdale and General Counsel Page.

I do not believe it's a stretch to say that the former Board chairman was an effective advocate for one side in the push-pull of labor management relations. However, I do believe that the Board should do much better to be above politics. I'm not a lawyer, I'm a businessman. And it seems clear to me that the agency should attempt, at its best, as best it can, to provide a balanced playing field for both labor and management.

The Board should strive to be, truly, a neutral arbiter under the National Labor Relations Act. So while an improvement in the Board's approach to administering the Act is a step forward, I still have some concerns. I'm troubled about recent trends toward overturning precedent. One cannot look at the Board's increasing tendency to ignore long-standing labor law and fail to be concerned.

I also remain concerned at how long it takes cases to be investigated, considered, and completed. This delay in decision-making becomes even more problematic if the Board ignores precedent to expand its reach even further at a time when the agency should be engaging in an ``all-out attack on the backlog of pending cases'' that Chairman Truesdale spoke of last year when Congress gave the Board a 22 million dollar increase in funding.

While this improved tone of the Board is a great help, I can't look at the recent decisions and help but conclude that activism is alive and well and that the scales are being tipped a bit out of balance. I anticipate a healthy discussion this morning, and we certainly have worthy issues to discuss.

The Board's recent Sturgis decision, for example, promises large implications in the area of temporary workers and employers' future willingness to use temps. The Epilepsy decision, which grants a non-union worker the right to have another worker present during a disciplinary meeting, expands the NLRA to the 90 percent of the workforce that is not unionized. Others, such as the Boston Medical Center case, which overturned more than two decades of law, suddenly considered student interns and residents employees under the Act.

We look forward to a productive hearing and, hopefully, some insight on where the Board is heading. In addition to the Board's General Counsel, we're pleased to have before us Charles Cohen, a former Board member; James Coppess, an attorney with the AFL-CIO; and Roger King, also a labor law expert from my home state of Ohio.

This election season will bring significant changes to the membership of the Board. While we do not have any current Board members before us today, let me say that this morning's hearing will lay the groundwork for future subcommittee hearings, perhaps including the entire Board along with the General Counsel.

 

WRITTEN OPENING STATEMENT OF CHAIRMAN JOHN BOEHNER, SUBCOMMITTEE ON EMPLOYER-EMPLOYEE RELATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE SEE APPENDIX A

Chairman Boehner: At this time, I'd like to yield to my colleague from the great State of Michigan, Mr. Kildee.

 

Statement of the honorable dale kildee, 9th district of Michigan, U.S. House of Representatives

Mr. Kildee. Thank you, Mr. Chairman. Mr. Chairman, the National Labor Relations Act is one of the greatest laws ever passed by the Congress of the United States. Passed, I think, in 1935. Changed the quality of life in my hometown of Flint, Michigan. I can recall my dad joined the UAW in 1936 shortly after the sit-down strikes that took place in Flint.

However, current law is, I think, too weak on protecting the rights of the workers who wish to organize their workplaces. One specific concern I have of the status quo is that there are so few repercussions for employers who wrongfully discharge a worker they suspect of union organizing. It's not the General Motors or the Ford or the Chryslers. They've learned, really, not only to live with their union but to prosper with their union. But there are still many employers out there who do wrongfully discharge.

According to the Dunlop Commission in 1998, every year about 10,000 workers are illegally fired for exercising their right to join a union. In addition, the agency, itself, has suffered from historic underfunding. We can't expect an agency to properly carry out its mission with a lack of funding and the lack of Board oversight that has plagued the agency in recent years.

So, Mr. Chairman, I do look forward to this hearing so we can look at how we can improve this agency's performance to protect, equitably, the American worker. You can have the balance of my time.

Chairman Boehner. Thank you, Mr. Kildee. Our first witness this morning will be Mr. Leonard Page, the NLRB's general counsel. Mr. Page was sworn in as general counsel in November of last year after receiving a recess appointment from President Clinton. He had been an attorney with the legal department of the United Auto Workers since 1970 and was serving as Associate General Counsel of the UAW at the time the appointment was made.

Our next witness will be Mr. Charles Cohen, who is testifying this morning on behalf of the U.S. Chamber of Commerce. Mr. Cohen is a partner in the labor and employment law practice group in the D.C. Office of Morgan, Lewis & Bockius. He was a member of the NLRB from March of 1994 until his term expired in August 1996. He's a member of the labor relations committee of the U.S. Chamber of Commerce and chairs its NLRB subcommittee.

Our third witness will be Mr. James Coppess. Mr. Coppess is an associate general counsel of the AFL-CIO. He has represented various labor unions during his career. He has also a master's degree in labor history. And I would note that Mr. Coppess has testified before the subcommittee in the past on the Beck issue, and we'd like to welcome you back.

Our final witness will be Mr. Roger King. Mr. King is testifying this morning on behalf of the Society for Human Resource Management. He's an attorney with the Columbus office of Jones, Day, Reavis & Pogue. Mr. King has testified on Board issues in 1997 before this subcommittee and we welcome you back, as well.

Before the witnesses begin their testimony, I'd like to remind all the members to ask any questions of the witnesses after the entire panel has testified. And with that, we're not going to use the timer lights in front of you. We'd like to ask all of our witnesses this morning -- five minutes is the committee rule -- if you need a little more time, we're interested in having a full and fair hearing. And so with that, Mr. Page, you may begin.

 

STATEMENT Of LEONARD PAGE, general counsel, national labor relations board, Washington, d.c.

 

Mr. Page. Thank you, Chairman Boehner, Mr. Kildee, members of the subcommittee. Thanks for this opportunity to testify before the subcommittee regarding the important work of the National Labor Relations Board in the Office of the General Counsel.

Again, serving as General Counsel since late last year under recess appointment, the President has nominated me to a full four-year term, and that nomination is pending before the Senate Committee on Health, Education, Labor and Pensions. My service as general counsel is the capstone of a career in labor law and it is truly an honor to have been chosen for this important position. It is particularly an honor to address the committee today.

I came to the NLRB at an auspicious time following a number of years in which the most predictable thing about the agency's funding was its unpredictability. We now seem to be on a stable path. Under the current, almost-concluded fiscal year's budget, the agency has been enable to embark on a multi-year stabilization program by staffing up, conducting extensive training, and increasing investment in information technology.

The funding request for fiscal year 2001, a 5.2 percent increase, has been acted on favorably by both the House and the Senate and awaits final action on a conference report. This funding level will enable the agency to meet mandatory pay increases and other cost factors. And, more importantly, to continue on its path to stability in staffing levels, training, and technology.

Earlier this year, the Board members and I, together with our senior staff, held a retreat at which we identified strategic goals for the next five years under the Government Performance and Results Act. We are revising our five-year strategic plan accordingly and will be submitting the revision to Congress in the near future. However, as I testified before the Appropriations Subcommittee, without stability and predictability in our funding, the plan will not be worth the paper it's written on.

I will briefly mention some of the major steps we have taken this year. I have submitted a statement for the record that outlines these initiatives in more detail. In the area of hiring, we are completing an ambitious program that has brought nearly 200 new professional and support staff employees to our ranks.

I'm proud to say that this is the most diverse group of hires the agency has ever had. Hiring will remain a priority, as approximately 11 percent of the agency staff is currently eligible to retire; an additional 6 percent will become eligible within the next two years. The agency has been able to resume an active employee training program; in a law enforcement agency such as the NLRB, the continuous training of employees must be a high priority.

During the past year, we have dedicated significant resources and efforts to upgrade our information technology infrastructure to support technology tools and processes needed by our employees. We now have the mainstream technology that allows appropriate interface between the NLRB and the public and the NLRB and the legal community.

Notwithstanding, the newness of much of our staff and the time and other resources devoted to training this year, we have made substantial progress in our case handling as well. As my written statement shows, virtually of all our significant performance indicators are up from last year. With the additional hiring projected for next year, we expect to be able to further reduce the time frames for investigating and prosecuting cases and to further reduce backlogs at all stages of the case pipeline.

We are pursuing a number of operational initiatives to improve the quality of our work and the level of our service to the public. These two are explained in more detail in my written statement.

I would like to thank the committee for this opportunity to meet and talk with you today. And I will be happy to answer any questions you may have.

 

written statement of leonard page, general counsel, national labor relations board, washington, d.c. see appendix b

Chairman Boehner. Mr. Cohen.

 

STATEMENT OF CHARLES I. COHEN, partner, labor and employment law practice, morgan, lewis & bockius, llp, Washington, d.c. (TESTIFYING ON BEHALF OF THE U.S. CHAMBER OF COMMERCE)

 

Mr. Cohen. Chairman Boehner and members of the subcommittee, I am pleased and honored to be here today. Thank you for your kind invitation.

It is, indeed, a challenge to administer the National Labor Relations Act. Although enacted in 1935, it has only been amended substantially twice - in 1947 and 1959. The workforce has changed and is changing constantly. But the Act is not changed. We all know that significant changes in labor laws are exceedingly difficult to enact; whether those changes would, on balance, benefit unions or employers.

I'm confident in stating that each member of the NLRB seeks to apply the Act consistent with the public interest. Although not frequently recognized, the overwhelming majority of Board decisions issue unanimously, regardless of the political affiliation of the individual Board members. What makes headlines are the much smaller percentage of cases that issue over the dissent of one or two members.

To be sure, those cases tend to be the more difficult ones and they often have wider impact. This brings us to the role of precedent at the NLRB and the overruling of that precedent. To be sure, each of the current Board members takes, quite seriously, his or her decision to overrule precedent. Indeed, the current members of the Board are to be commended for discussing, in an open forum, at the most recent meeting of the American Bar Association, their individual approaches.

But from my perspective, there is far too much willingness to overturn precedent. Unquestionably, the NLRB must free to change its mind. Even though the NLRA is a law that Congress has not changed substantially in more than 40 years, we have, nonetheless, reached a point of constant change in the interpretation of that law. This has a destabilizing effect on the law and makes it exceedingly difficult for companies to plan and, yet, comply with the law.

It puts a premium, not on knowing what the law is, but rather on divining how it might change. The very uncertainty requires counseling of employers to refrain from courses of action that have, in the past, been routinely permitted.

As a result of the overturning of precedent on a regular basis, the Board is open to the criticism that it has diminished the role of stare decisis to such a point that a personal disagreement with an outcome is sufficient to overrule precedent. The danger is that, as the Supreme Court stated in another context when considering overturning decisions of arbitrators, each Board member can be considered to be dispensing his or her own brand of industrial justice. Surely, this is not a good development.

In my view, it is not productive to search for the point when the standards first became excessively lenient for the overturning of precedent. That debate is much like the one about which political party is responsible for negative campaigning. The point is, that we clearly have reached a point when precedent has too little value.

Sometimes these reversals of precedent relate to a specific issue; but when taken together, have the effect of undermining an entire area of the law. For example, a fundamental precept of the Act, as amended, is the practice and procedure of collective bargaining on behalf of those employees who freely choose union representation. Through a series of cases, the Board has raised the bar substantially on how employees can exercise their right not to be represented by a union any longer.

In a series of cases detailed in my written statement, I have explained how, taken together, the law, decertification of unions has been reworked. We hear a lot these days about the contingent or temporary workforce. There is no doubt that significant efficiencies and economies result from the flexible use of these employees.

But the unions have had a great deal of difficulty organizing these employees. Within the last month, the NLRB has overruled precedent and made it easier for unions to organize these workers. Or, alternatively, to create obstacles to the growing use of temporary or contingent workers. In order to reach this result, a majority of the Board decided that employees supplied by a temporary referral agency could be included in collective bargaining units with employees of the user employer.

This flies in the face of an established proposition of law that multi-employer bargaining is a consensual arrangement which will not be mandated by the Board unless both employers consent. The Board left open the possibility in M.B. Sturgis and Jeffboat, that in an established collective bargaining relationship with the user employer, the supplier employer's employees could be included in the user's collective bargaining unit and subject to the terms of the collective bargaining agreement without ever having had an opportunity to opt for or against representation by a union.

This issue, which has been remanded to the regional director, is an extremely significant issue which the Board will face in the future.

Since one of the purposes of this hearing is to examine recent trends and the implications of those trends, permit me to next turn to the issue of so-called neutrality agreements and the recognition of a union based on a contract. Under the Act, the traditional way for a union to secure recognition, is to organize in the employees and win a secret ballot election at the conclusion of the organizing campaign in which the employer has had an opportunity to illustrate why it believes the employees should vote against representation.

Voluntary recognition of the union based on a majority of authorization cards signed by employees designating the union as their representative is permissible and has, historically, been used to a limited extent. That is, of course, no secret that unions have had little success in organizing new members for several decades. But they have discovered that their chances of success are greatly enhanced by leveraging their relationship with employers who had some employees already organized; and by getting those employers at the bargaining table to agree to neutrality agreements with card-check recognition.

Although there are many forms and permutations of these agreements, the two most significant items typically involve a gag order against the employer during the union's organizing campaign of the unrepresented workers and a bypassing of the NLRB secret ballot procedures in favor of card-check recognition. These agreements have become particularly widespread in the telecommunications, steel, auto, and hotel industries.

The NLRB does not have occasion to routinely get involved in these issues as they are typically a part of the private collective bargaining process. However, an important issue is whether these topics are so-called mandatory subjects of bargaining about which a union can bargain to impasse and strike to obtain.

In Pall Biomedical Products, a decision issued August 31st this year, a Board majority determined that a contract that required recognition of the union for other employees at another location and in a separate collective bargaining unit was a mandatory subject of bargaining on the thesis that the agreement, vitally, effected the terms and conditions of the employees under contract.

Although that case arose in an unusual factual setting, it undoubtedly will serve as a predicate for the Board to find neutrality and card-check agreements mandatory subjects of bargaining.

From my perspective, the significance of this trend is that organized labor has found a way to marginalize the established procedures of the Act for union recognition of employees. I do not believe that Congress envisioned this development. It is, therefore, something of which Congress should take note and decide, affirmatively, whether it wishes to entrust these vital functions to the bargaining table rather than to the ballot box.

Thank you. I'd be happy to answer any questions.

 

WRITTEN TESTIMONY OF CHARLES I. COHEN, PARTNER, LABOR AND EMPLOYMENT LAW PRACTICE, MORGAN, LEWIS & BOCKIUS, LLP, WASHINGTON, D.C. - SEE APPENDIX C

 

 

Chairman Boehner. Mr. Coppess.

 

STATEMENT OF JAMES COPPESS, ASSOCIATE GENERAL COUNSEL, AFL-CIO, WASHINGTON, D.C.

 

Mr. Coppess. Thank you, Chairman Boehner and members of the committee. Thanks for this opportunity to testify before you about the operations and performance of the National Labor Relations Board and the Office of the General Counsel.

The AFL has testified on prior occasions before this committee and other oversight committees about the substantive and remedial deficiencies in the National Labor Relations Act. I wish to reiterate the AFL-CIO's position that the NLRA provides only inadequate protection to workers who engage in lawful union organizing activities. In this, we agree with the sentiment expressed by Congressman Kildee in his opening remarks.

In addition to the Act's inherent statutory deficiencies, the Board has been hobbled in recent years by insufficient funding and staff and by a less than full complement of Board members. Delays have correspondingly mounted. And during this past year, the agency has been struggling to recover the strength and productivity it lost in prior budget cutbacks and turnover.

And management and unions alike have suffered from the difficulties presented by lack of proper funding for the Board. This is indicated by the articles we cite in our prepared remarks which we submit by management and labor lawyers, both private practitioners, and some present members, outlining the ill effects for management of Board underfunding.

The budget for fiscal year 2000 has begun a reversal of the prior underfunding and we welcome this change. It has allowed the agency to fill positions and conduct proper employee training and make efforts to regain its productivity. Nevertheless, there is much room for improvement in the way the National Labor Relations Act is administered and enforced.

It's a sad commentary in this regard that the Board chairman's announced goal for the fiscal year 2000 was deciding some 173 unfair labor practice cases that have been pending at the Board for more than 30 months and processing 72 representation cases pending for more than 20 months.

Weak as it is, however, the National Labor Relations Act is the national law that protects employees' freedom of association in the workplace. And I would note with respect to a point Chairman Boehner made in his opening remarks, that it's not a statute just for the 10 percent of the workplace represented by unions, it's a statute for the 100 percent of the workplaces that fall within the jurisdiction of the NLRB.

NLRA, in other words, is a civil rights law for working people. And as a civil rights law, it is of equal dignity with the employment discriminational laws enacted since the 1960s. The NLRA demands no less vigorous enforcement in all workplaces than these other civil rights laws receive. Unlike other civil rights laws, however, the NLRA does not provide for any private right of action to those whose rights are violated.

And the task of enforcing the statute lies within the exclusive jurisdiction of the Board's General Counsel. Also unlike other civil rights laws, the NLRA does not provide any means of punishing wrongdoers. Wrongdoers are required to cease and desist from illegal conduct and to take such affirmative action that will effectuate the policies of the Act.

But in almost all cases, affirmative relief boils down to nothing more than the posting of a notice promising that the employer will not repeat its illegal conduct. In many cases, sadly enough, while the employer is simultaneously engaged in the precise conduct it has promised not to commit. The recent Beverly case is a good example of this. The 7th Circuit recently enforced a nationwide cease and desist order in Beverly x number. I don't know many had gone before. But the company has repeatedly engaged in a centralized campaign of intimidation and resistance to union organization. It was only on the third trip to the Court of Appeals that a nationwide order was, actually, entered against the company. I think that's an example of the weak effect of posting a notice as promise to enforce the law.

The bad remedy also is similarly ineffectual. Workers typically don't collect it for years and years until after the fact and even then, it doesn't fully compensate them for all the harms they've suffered. In this, too, the remedy that the NLRB typically issues is unlike the remedy given under the civil rights laws.

Reinstatement is also a hollow remedy for the simple reason that the order is delayed many, many years by which point the worker has typically found a satisfactory job elsewhere and doesn't wish to return to the atmosphere of intimidation that they encountered during their organizing campaign.

The end result of all this is, as the Human Rights Watch recently summarized the matter in reporting on protection of freedom of association in American workplaces that the NLRA ``provides a ponderous, delay-ridden legal system with legal remedial powers.'' The report goes on to say that any employer intent on resisting workers self-organization can drag out legal proceedings for years; fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct and grant back pay to a worker fired for organizing.

Many employers have come to view the remedies like back pay for workers fired because of union activity as a routine cost of doing business -- well worth it to get rid of organizing leaders and derail worker's organizing efforts. As a result, the report concludes, a culture of near impunity has taken shape in much of U.S. labor law and practice.

What the Human Rights Watch recommends in order to bring U.S. law in line with international standards as human rights are tougher remedies for violation of the NLRA, including immediate reinstatement for fired workers, full back pay regardless of interim earnings, and substantial fines for those who violate the law.

It also supports equal access to the workplace so that workers can have access to information from union representatives in the workplace about the right to form and join trade unions and to bargain collectively. We believe that this report by a neutral human rights agency for a watchdog group outlines measures that would begin to correct the sad state of labor law enforcement in the United States and we commend them to your subcommittee's consideration.

Thank you.

WRITTEN STATEMENT OF JAMES COPPESS, ASSOCIATE GENERAL COUNSEL, AFL-CIO, WASHINGTON, D.C. SEE APPENDIX D

Chairman Boehner. Thank you, Mr. Coppess. Mr. King.

 

STATEMENT OF G. ROGER KING, PARTNER, JONES, DAY, REAVIS & POGUE, COLUMBUS, OHIO (TESTIFYING ON BEHALF OF THE SOCIETY OF HUMAN RESOURCE MANAGEMENT)

Mr. King. Chairman, Boehner, Mr. Andrews, thank you very much for having SHRM participate in this hearing this morning. Further, SHRM would like to commend the subcommittee for filling down this path of looking at this important federal labor law agency. We echo your comments, Chairman Boehner, about the tone of the National Labor Relations Board and its current leadership. Certainly, it's been much more positive.

 

Chairman Truesdale and members of the Board have done an excellent job in re-establishing professionalism and a deep-seeded commitment on an institutional basis to this agency. And we would also commend General Counsel Page. He's brought years of private practice experience to the agency and has shown a deep commitment in his professionalism to the Board.

Having said that, SHRM is quite disturbed by the direction the Board has proceeded. We would note at the outset that we are disturbed and disappointed that Bob Brame, a recently concluded member of the Board, indeed, Mr. Brame's term just expired in August of this year, and he was not renominated by President Clinton. We now have a vacancy on the Board due to that particular failure to address a vacancy and that is a concern.

We further notice, Chairman, as General Counsel Page has alluded to in his remarks, he is a recess appointee and we stand the distinct possibility, as this Congress adjourns, of not having a General Counsel of this important federal labor agency. That is a mistake that needs to be addressed. I'll return to that in a moment.

Failure to follow precedent, as Mr. Cohen mentioned, is a concern. Whether you represent a labor union, an employer, whether you're an employee -- either in a union or non-union setting -- stability in the workplace and predictability of our laws is important. We don't have that. As SHRM mentions in its statement, which I would ask to be included in the record, we have an alarming degree of reversal of precedent.

This Board, starting in November of last year, has discarded years and years of NLRB precedent. As the Chairman mentioned, in Boston Medical Center, this Board discarded many years of precedent, did not come to the Congress for direction. And that's another concern that I hope this subcommittee examines.

Failure of the Board and its general counsel, when the Board wishes to make a change in law, should go to the legislative branch. Boston Medical Center is a perfect example; as we allude to in our remarks, the proposals that General Counsel Page is making to increase the remedy power of the Board. Those remedies, certainly, are controversial but they belong in the legislative branch for discussion.

I'm going to return to our remarks just for a moment to look at, also, some deep-seeded concerns about the way the present Board is functioning. Not only are we seeing an alarming change in the direction of the Board with respect to the overturn in precedent, we're seeing very sharp divisions in the way decisions are issued.

As noted in our paper, continually, we have 3-2 splits or 2-1 splits in a decision, with very strong and long dissents. Indeed, SHRM would submit that, perhaps, we have more dissents and sharper dissents than at any other time in the history of this agency. That's a cause for concern.

With respect to the cases themselves, Boston Medical Center's been mentioned, the Epilepsy Foundation, the Chair mentioned in his remarks. We couldn't agree more. The problem with Epilepsy is that this Board that has a substantial case backlog now has endeavored to get into an area, bringing virtually any employer in the country into the jurisdiction of the Board on an everyday occurrence of whether an interview in the workplace will trigger a violation of the Act.

SHRM submits, putting aside the dispute on whether this is appropriate law, whether, in fact, it's consistent with Section 7 of the Act, is not a wise expenditure of scarce agency resources. Further, SHRM would echo dissenting Member Hurtgen's comment that's what's happening here, like in many other decisions, is that the Board is providing trip wires. And that's his word, not mine. They're landmines, if you will, for the unsuspecting employer -- employers of very small-sized or unsophisticated size up to GMs of the world; but small- and medium-sized employers that may be violating the Act and not know it. And that's certainly a question for consideration. The Epilepsy Foundation was wrongly decided - but more importantly, makes no good, practical common sense.

There are many other decisions that follow the category of reversal of precedent. Atlantic Limousine, Family Service Agency, M.B. Sturgis, that Mr. Cohen mentioned. Now in this decision, we have the Board saying that the significant change in the workplace -- technology, etc -- has brought many issues before the American workforce, labor unions, and employers alike.

Granted, we'll agree with that. But what is happening is, that particular phraseology or policy shield, if you will, is serving as cover to change precedent at an unfortunate and alarming rate and not in the proper direction. The committee needs to be careful about that. Don't be lured into that type of thinking. But, most importantly in Sturgis, where the Board held that a supplier employer of contingent workforce employees can be thrown into a bargaining situation with the host or security employer, says that 1970s law is where we should return to look at this change in the workplace. That makes no sense.

What the Board is doing is going back in time to Board case law in the 70s, reversing current precedent and saying that that particular area of the law is the way to address these new changes in the workplace. We don't follow that. We don't think it makes good liberal policy nor do we think it's consistent with the statute. There are many other cases that are noted in the paper that, certainly, are of concern regarding reversal precedent.

SHRM would echo Mr. Cohen's statements regarding employee voting rights. What is happening in the workplace is that, obviously, the Federation and other labor organizations are having great difficulty in convincing workers to vote for representation. So in the alternative, what we're seeing is neutrality card-checks.

We're bargaining to organize where agreements are made that employees without, perhaps, their consent in any way, shape, or form of any meaningful nature, are put into a bargaining relationship. The Board and the General Counsel seem to be turning their backs on this phenomenon. The bottom line is such civil rights of employees suffer. And clearly free choice -- for or against representation -- is at the core of the Act. It should not be forgotten.

In that respect, we mention in our testimony blocking charge procedure. The Board has a procedure, Mr. Chairman, where an election can be put on hold if one party to the election complains that unfair labor practices have been committed. The best analogy I could draw is that if the Republican or Democrat party filed objections to the Federal Election Commission to postpone the upcoming presidential election, they actually would be put on hold until those election objections were resolved.

One can only wonder how that process would work. Not well. That's what the Board is doing today.

Mr. Andrews. Are you suggesting that?

Mr. King. No, I am not, Mr. Andrews. I am not, Mr. Andrews.

Chairman Boehner. We may never get to the election.

Mr. King. That's true. And that's the heart of the problem, Mr. Chairman. We have cases, particularly decertification cases, pending before this Board that go back more than four years or employees can't vote because one party or the other just filed an objection. That makes no sense. Blocking charge procedures are being used in a very unfortunate manner and that area needs to be addressed. Let me briefly go through a few other areas.

Retaliatory lawsuits. Mr. Chairman, right now, many employers are faced with corporate campaigns when they refuse to recognize a union or expand the union's representation. What happens is we see complaints with federal agencies, we see picketing, we see boycotts, etc. Well, if the employer responds by filing a lawsuit or fights in any legal arena and doesn't prevail in whole, it can be required -- according to the Board -- to pay the union's legal fees.

That is outside the statute, it's inconsistent with the so-called American Rule that requires both parties to pay their own fees. You don't have it on the other side where unions are required to reimburse employer fees in these types of disputes. That area is a serious misconstruction of the statute.

Merit pay, we've had a lot of dispute about whether a unionized employer can implement a merit pay system in the workplace. That area has gone up to D.C. Court of Appeals. the Court of Appeals in the Detroit News case, has chastised the Board for not following its own statute in case law. We need to get back -- both from the union side and employer side -- to working out how merit pay can work in a unionized workplace.

Access to private property. The Supreme Court, in a case called Lechmere, clarified, we think the law in this area. But the Board seems to have a different viewpoint regarding who can come onto private property in an organizing campaign. Another serious area that needs attention.

We've mentioned the temporary workforce issue, the Sturgis case. The statutory definition of supervisors, it's a mess. Unfortunately, we have different circuit courts going different ways. The Board was told in the Healthcare and Retirement Corp. case by the Supreme Court to apply certain principles in this area. We still have disputes. Again, both from a union and employer viewpoint, we need some clarity in this area of the law.

Finishing with our statements, Mr. Chairman, we would note that the federal Courts of Appeal, which are the check in most instances on this agency, have looked with a great deal of concern on what's happening with National Labor Relations Board. The federal Courts of Appeal, all 12 of them, over the last two years, have at least, in one instance, reversed the Board in whole or in part. And we've included in our paper, 67 some cases that illustrate this point. That's disturbing.

The delay in decision-making, I agree with my colleague, Mr. Coppess. Whether you are a union or an employer or an employee in neither setting at this point, delay in the decision process has to change. We went back and looked at statistics back to 1972. Unfortunately, this Board has not issued nearly the number of decisions that prior Boards have. I don't know what the average shelf life is, today, on some of the cases that are sitting there. I find interesting Mr. Coppess' comment.

But this is an area that employers and unions can agree upon. This agency needs to do a better job. As mentioned in our paper, one federal Circuit Court has gone so far as to the label the National Labor Relations Board the ``Rip Van Winkle of administrative agencies.'' Experience in the Board staff, General Counsel Page and others have indicated more training is necessary. Absolutely.

As we hire these new lawyers and staffers, they need to know what they're doing. Again, whether you're on the union side or the management side. More training is needed, particularly in the area of collective bargaining, for this agency. We would suggest to the subcommittee and to the Appropriations Subcommittees that specific funding be earmarked for training in this agency.

Finally, Mr. Chairman, we are concerned about the constantly changing composition of this agency; whether you're a Democrat or a Republican. As I just indicated at the outset of our remarks, we're going have a vacancy in the Office of the General Counsel, in all likelihood, at the end of this Congress. We have Member Brame leaving the Board because his term expired in the middle of August of this year. There's been no nomination for a recess appointment that I'm aware of this morning to replace him. Member Fox, whose term will expire in that she's on a recess appointment basis this year. We do not know whether we're going to get another recess appointment or not.

We can't function, today, with those types of continual vacancies. We need some better direction from this administration and future administrations. And I'll just leave the committee with this comment. This is at page 36 of our paper. The law of the workplace simply should not be written and changed on the basis of the last presidential election or which party controls the Congress. This agency, certainly, needs to do a better job. We all need to help to do a better job.

Thank you, Mr. Chairman.

WRITTEN STATEMENT OF G. ROGER KING, PARTNER, JONES, DAY, REAVIS & POGUE, COLUMBUS, OHIO SEE APPENDIX E

Chairman Boehner. Thank you, Mr. King, and I want to thank all of the witnesses for their excellent testimony. I can see that the adversarial nature of this subject here, Ed, is alive and well. And General Counsel Page, let me congratulate you. You not only seem to impress the members with the new tone of activities over at the Board but some of, certainly, all of those who have to deal directly with the Board.

There's been an awful lot of discussion this morning about the issue of precedent. And it seems clear that over the last 10 months or so there's been a significant increase in the Board setting the precedent. Is there any particular reason for this?

Mr. Page. Well, if I can try to respond for the Board. We are a two-headed agency. My duties are to investigate, prosecute and, of course, when the Board does render a decision, I also have the duty to seek enforcement of that decision in the Court of Appeals. And I'm somewhat obligated to whatever the Board decides, that's fine with me. I heard about a general counsel in the Truman administration that refused to seek enforcement of a Board order because he didn't like it and President Truman fired him.

I don't want to be the second one. My term may be coming to close real quick by other means. But I am obligated to enforce Board decisions as rendered. I'm not going to publicly quarrel with any Board decision. I understand the problem of overturning precedent. As Mr. Cohen, perhaps, 10 years ago there were a number of union attorneys that would come before this committee and make the same comments about a prior Board.

But I think this is inherent in the statute. The party in power nominates three and the party out of power nominates two. And unless you want to lengthen the terms or change that statute, in some way, I think we're going to have some tweaking of precedent as Board members change.

Chairman Boehner. Well, Mr. Cohen, you're a former member of the Board. Could you tell us what your thinking was when it came to overturning precedent in deciding these cases?

Mr. Cohen. Yes, Mr. Chairman. When I came to the Board, I decided, like any Board member, had to consider what the proper role would be concerning the issue of overturning a precedent. And what I've said here today, I'm pleased to say to you, are the same thoughts that I had as a Board member.

To my recollection, I never voted to overturn existing case law, which is not to say I agreed with all of them, to be sure I did not. But I decided that interests of stability were such that it was better for me to apply the law rather than to stake out individual positions which would have required the overturning of precedent.

And if I might just add a brief comment to what Mr. Page said. The Board, of course, is free to overturn precedent when they decide to do so in a case. Mr. Page's predecessor, pretty much, routinely, keyed those issues up for the Board and argued to the Board that precedent should be reversed. So it was a very activist time and it was, if you will, an invitation to overturn that precedent.

I'm pleased to say that I'm not aware of the same practice being followed by Mr. Page. But I believe that that is a substantial part of the problem.

Chairman Boehner. Mr. Cohen, it's my understanding that with respect to multi-employer bargaining before Sturgis, that all employers had to agree to bargaining before the Board would mandate it. In your view, why is a wise majority of the Board seeing fit to change this long-standing principle?

Mr. Cohen. Mr. Chairman, with all due respect, it's quite difficult to get into the heads of the current members of the Board. But as Mr. King stated, at the Board when I was there and the argument has continuously been made that the workforce has changed, that there is a tremendous number of contingent workers today, and that something must be done for them because they don't have the same rights.

In my judgment, that's a phony issue. Contingent workers have been covered under Section 7 of the National Labor Relations Act and have had those rights. What there hasn't been is the ability to lump those employees together in the same collective bargaining unit unless both employers agreed to that. That's what's been changed and that's where the change in the rules have come and permit a road map, if you will, for the unions to seek to lump these employees who may have very, very different interests than their other employees together with those other employers.

Chairman Boehner. I see my time has expired. We'll come back for a second round of questioning. Mr. Andrews.

Mr. Andrews. Thank you, Mr. Chairman, and good morning. First, let me apologize for missing the opening part of the hearing. I had a bill that was on the floor and I appreciate Mr. Kildee and Mr. Tierney being present to help us through this. Thank you very much. And I certainly had a chance to read what the witnesses have said.

What I read was a point of consensus and a point of disagreement. The point of consensus, at least, I read was that the NLRB could use some more resources and could use those resources in a targeted way to increase training and technology and productivity. I didn't hear that in a critical or a negative way; I heard it in an expository way. And I'm glad that, as I understand it, both Appropriations bills -- both the one here and in the Senate -- called for a 5 and a 1/2 percent increase over last year's resources. I think that's commendable.

What I also hear is some disagreement over substance. Some rather sharp disagreement over substance, which, in my mind, is evidence that the present system works pretty well. The people who are least positioned to adjudicate those issues of disagreement over substance with all due respect to us, is us. For us to get involved in the minutia of labor law. But when I use the term minutia, I do not mean to suggest that these questions are not important. They're very important.

But they're also very complex and very sophisticated. Congress, in its wisdom, about 70 years ago now, created a system where there's an administrative agency that hears these issues, hears the arguments like we've heard today, and renders a decision or a series of decisions. And when we as the elected representatives of the people find those decisions to be moving in the wrong direction, we propose and enact legislation to fix the substance which we have done on exceedingly rare occasions in the 70 years since then.

My instinct is that we respect that tradition of stereocycis. That tradition of recognition of precedent as well as the ones that you talk about here today. For us to be jumping into every decision in every fray, I think, would be of dubious value. Let me ask a couple of questions to follow up on something Mr. Cohen just said about the contingent worker decision, Sturgis.

You said that, in your view, contingent workers have Section 7 rights but a condition precedent to exercising those rights is that both employers or all employers consent to the exercise of those rights. Is that what you said?

Mr. Cohen. Just slightly different, Mr. Andrews, if I might. They have the right and they could have been petitioned for organizing those employees just among the employees. For example, Manpower. That could have been done.

Where the change comes is, now we're taking the Manpower-type employees and including them in a factory unit.

Mr. Andrews. I understand that.

Mr. Cohen. So that the joint employer's consent is not being required.

Mr. Andrews. Are you aware of any cases on the record where more than one employer has given that consent for Manpower and the factory? They both said, sure, go ahead and organize us.

Mr. Cohen. I don't recollect whether the Sturgis case, itself, involved a situation because in Sturgis it was Sturgis that was saying they wanted to include the temporary employees. I don't recall whether the supplier employer in Sturgis was present or not or the argument that they made.

Mr. Andrews. One of the arguments that I think is -- and I would invite you to, as the record is kept open to, you know, supplement your answer in writing if you choose -- one of the things that occurs is the practical limitations on a contingent worker who would choose to engage in organizing.

And if you're assigned to the electronics factory for seven or eight months and you get the bright idea that you should organize all of the people that Manpower put there, it seems to me it would be pretty simple for Manpower just to give you a different job assignment. Now you can claim that that's a violation of your right to organize. But you could make that claim many dollars and many years from now, after you've suffered the economic consequences of that.

I want to ask a question of Mr. King. Assume a set of facts, Mr. King, where a union has won an organizing election and proceeds to attempt to negotiate its first collective bargaining agreement and that process stretches four or five years. And there is a finding by the National Labor Relations Board that the employer failed to bargain in good faith during those four or five years.

What do you think the remedy should be against the employer if there is such a finding?

Mr. King. Well, I would have to look at the statute, Mr. Andrews, to start out. I would, certainly, find that the employer needs to go back to the bargaining table and bargain in good faith. But I wouldn't stop think there. I think the agency where it finds egregious conduct on the part of an employer, can monitor the negotiations, require the negotiators have outside assistance, perhaps from the Federal Mediation Conciliation Service or mediation to resolve their disputes.

I would ensure that there were some time target for completion of the negotiations. And, if necessary, if this egregious employer continued to engage in unlawful conduct, I would certainly turn to the agency and if I was the General Counsel and the Board, I would look at 10(j) or injunctive relief and have the federal court step in.

Outside of that, I think we have to come back to the Congress and put that question to this body as to how far the pendulum's going to swing.

Mr. Andrews. I suppose that is what I'm asking you. If you were to give us, as legislators, advice on altering or expanding those remedies, what would you advise us to do?

Mr. King. I would certainly look at the egregious employer, unfair labor practice situation. I'm not here on behalf of SHRM or my law firm to defend employers that violate the law. Employers that continuously violate the law need to be dealt with accordingly. And, perhaps, in those situations, there needs to be extraordinary relief.

Perhaps, an immediate requirement that a collective bargaining agreement and your set of facts be completed on a time-certain basis and that the parties live by it period.

Mr. Andrews. I appreciate that. I see that my time is up. I would simply add that I'm hard-pressed to think of any other area of the law where a finding of the violation of someone's civil or economic rights does not lead to consequential money damages. And I'm not sure why it shouldn't lead to it here either.

Mr. King. Mr. Andrews, if I may. I think that's exactly the issue that Mr. Page has teed up, if you will, for consideration. But that should come back to the Congress. Not proceed, unilaterally, through the Office of General Counsel or the Board.

Mr. Andrews. I understand and I agree. Thank you, Mr. Chairman.

Chairman Boehner. Mr. Ballenger.

Mr. Ballenger. Thank you, Mr. Chairman. I apologize to the gentlemen for skipping out on you but somebody told me I had to go chair another meeting at the same time. You'll be happy to know that the situation in Haiti is no better than it was a half hour ago.

Maybe, you all know my situation, maybe you don't. Before I became involved in Congress up here I had a manufacturing company in North Carolina and I'm still participating in it. And it's non-union. And I just would - a question comes to my mind and I don't know who to ask. Maybe, Mr. King or Mr. Cohen because, obviously, I want a biased answer in my favor.

The basic thing is, where does the NLRB get the authority to come into a non-union situation and deliver an opinion, unless there was somebody breaking a law that it's there? In this Weingarten case or the Epilepsy situation, where do they get the authority to come into that situation when there's nothing, as far as I know, in NLRA to authorize this?

Mr. Cohen. If I might try it, Mr. Ballenger. I don't believe that there's anything in the NLRA that grants this right. I think the line of reasoning from the Board would go that the Supreme Court, in an old case called Washington Aluminum said that non-union employees have Section 7 rights and they have the right to band together. And in that case, involved in a strike even though there was no union involved.

And it's one thing for the Board to take a principle like that and let's get closer to the Weingarten/Epilepsy situation and pause at a situation where an employee is about to be called in for an investigatory interview. And the employer says, I don't like employees who seek to band together. You're fired for asking. That should and would be a violation of the NLRA, I believe, seven days a week.

The rub comes in when we have what occurred in Epilepsy and that is the Board establishes a new set of rules which apply to the 90 percent of the workforce that is unorganized, that the employer, before it can proceed with the interview, must adhere to the wishes of the employee to actually bring the co-worker in on pain of not having the interview take place at all.

I believe that is beyond the Board's statutory authority and that's where the problem comes in.

Mr. Ballenger. Mr. King, go ahead.

Mr. King. Well, Mr. Ballenger, I concur but the line question, as Member Hurtgen said in his dissent, is that the Act doesn't require that a co-employee be present. That is very, very strained interpretation of Section 7 of the Act. And furthermore, the Board's decision in Epilepsy leaves open many practical questions.

Oftentimes, in the workplace, an employer needs to have a confidential interview with an employee to get to the bottom of the facts. Sexual harassment is a perfect example. You don't want other employees present. The Board doesn't address those practical, day-to-day work problems, let alone the statutory problem they have with this case at the outset.

As I mentioned in my remarks, Mr. Ballenger, at the outset, is this a good use of this agency's resources when it has hundreds and hundreds of cases in a backlog situation and when it needs to come to this body for more money? I think that's the legitimate question to put forth to the Board and the General Counsel.

Mr. Coppess. Mr. Ballenger, could I respond?

Mr. Ballenger. Yes. Let me throw in two cents' worth. A situation doesn't specify what reason the employee might have to call in for a witness. So that opens a whole can of worms that they can call for a witness anytime they want for anything they want to. Even if you got him drunk on the floor and you brought him in to discuss this liquor he was drinking, you'd have to bring a witness in, probably, that's non-alcoholic.

Go ahead, Mr. Coppess.

Mr. Coppess. Yes, if I may, I think if we look at the facts of the case of the words of the statute, it's a little hard to see how it wouldn't apply. I realize there are precedents that say it doesn't but what happened in that case was two fellows were involved in a sort of a dispute of work. And one of them got out of sorts with management and was called in for an interview that was, obviously, going to lead to discipline.

And he said, ``hey, look, this other fellow is in this with me,'' named the guy who was in it with him -- two of them working together and said, ``I'd like to have him here with me.'' Section 7 of the Act gives employees the right to engage in concerted activity for mutual aid and protection. Section 8 A(1) makes it unlawful for an employer to interfere with that. And Section 10(c) gives the Board authority to remedy violations of that.

Now the thing that I find troubling or hard to understand is how anybody could say, within the natural meaning of the words, that those two guys weren't involved in mutual aid and protection. They were up to something together, they were wanting to stand together and face the employer. I understand there is precedent that was overruled. But they're going back to precedent that the precedent that they're overruling overruled.

I've been at this now for 20 years, litigating NLRB cases in the Court of Appeals, and I've watched precedents come and go. And sometimes, I've just pulled my hair and said, how am I ever going to defend this? Or chuckled and said, this is going to be fun to knock down. And I must say this recent crop of cases has been some of the best-reasoned Board decisions I've seen since the Stevens Board took over from the Dodson Board.

So it's not a matter of Democrat or Republican, what I'm saying. It's a matter of sound legal reasoning, and these things will go to the Court of Appeals -

Mr. Ballenger. If I may interrupt. You got four lawyers sitting out there. Mr. Andrews probably is the only one that really gives a hoot about this legalistic stuff. I'm talking about practical -

Mr. Coppess. Thank you Mr. Ballenger. I thought we were talking about law enforcement. I'm sorry.

Mr. Ballenger. No, actually, what I'm talking about is trying to run a company - a manufacturing company that when you get employees that get in arguments with each other, day in, day out, I could name you 50 different reasons that somebody could claim, I want somebody to sit in here with me because of this. I mean, what about when you're sitting down and doing your monthly, six monthly, or yearly audit of an individual as to whether they get a raise or not. Does that not demand, immediately, that you bring somebody in to sit there and make sure you're not getting cheated?

Mr. Coppess. And if it doesn't make practical sense, I would say, maybe, the employer should go back to Congress and seek a statutory amendment that would limit the scope -

Mr. Ballenger. That's what I was thinking of. It makes sense to me that you've overstepped your bounds and that we should cut it off. It's sort of like executive orders our present president uses so profusely and momentarily you can't tell what he's going to do next. Why should NLRB do the same thing?

Mr. Coppess. Well, I think we're agreeing that it's within the bounds of the present statute. We tend to think that that scope that the statute should apply to all workplaces and shouldn't be confined unionized workplaces. You know, that was a debate that was held 65 years ago and Congress did what it did.

Mr. Ballenger. And it agreed it shouldn't - this was a precedent that was set, was it not? Hadn't the historic background of this particular issue said that NLRB would butt out, normally?

Mr. Coppess. No, no. I mean, I think Mr. Cohen referred to it. It's been an absolute ground level rule that the NLRA applies everywhere.

Mr. Ballenger. Well, since 1988 my understanding is what I read here.

Mr. Coppess. Well, then, since 1982, it was the other role and it's, you know, the administrative agencies change roles.

Mr. Ballenger. Okay, I've enjoyed myself. Thank you.

Mr. King. Mr. Ballenger, can I just briefly comment?

Mr. Ballenger. Yes, sir.

Mr. King. The situation Mr. Coppess just mentioned where you have two employees getting in an altercation, perhaps, with others and he submits that since they acted together, there's a mutual aid in protection that should lie. I would, respectfully, disagree with that because the employer, even in that setting, would have a right to individually interview those employees at, perhaps, individual interviews may get better and more accurate responses to what really happened.

And nowhere in the statute, that I can see, and many others would concur, does the Act require that the employer have a co-employee present in such a situation. That's the heart of the dispute. And, further, as you've mentioned, as a practical matter is makes no sense. Here we go off into years of litigation on these types of -- hourly type -- of scenarios.

Chairman Boehner. Mr. Tierney.

Mr. Tierney. You're kidding. Really?

Chairman Boehner. I know you can't wait.

Mr. Tierney. Well, no, I just wanted Mr. Ballenger to make sure he got it all off his chest. He's been waiting since he left the manufacturing business to get his -

Mr. Coppess and Mr. Page, we've heard all this testimony about how just terrible this Board is in recent times. Can you tell me whether or not this Board has been losing appellate decisions at a more rapid rate than the recent Boards have been?

Mr. Page. I have some data on that. Affirmed in full statistics. From '94 to '98, the Board was affirmed in full in 381 cases or 65.8 percent of the time. In 1999, the Board was affirmed in full in 94 cases or 70 percent of the time. In other words, a slight increase. At the other extreme, cases set aside, again, 1994 through '98, 76 Board decisions were totally set aside, 13 percent.

Fiscal year 1999, 17 cases set aside, 12.8 percent. So a slight decrease in the numbers of cases set aside. The point being that, at least, as of 1999, there's really been no significant change over the past five-year period preceding that.

Mr. Tierney. Well, I guess the point being, this is all very political, whether people like it or not and we're lining up here sort of an adversarial relationship. You're going to see it whichever perspective you take and you work in. But, Mr. Page, I know the budget has been a little uncertain in recent years or whatever. I will assume there's an impact resulting from that and would like to ask you to expound a little bit on what those uncertainties and the budgetary process really mean to this agency and to the people that are affected by the agency's work.

Mr. Page. Well, one of the first things I noticed was we hadn't done a lot of training at the agency in a number of years. When you have four or five years of lean budgets and you're salary driven, training is a luxury. Well, you can't continue that for very long and you start to pay for it. So one of the things we noticed was a real problem in training.

The other thing I heard is that we had actual trial date slots go unfilled. By that I mean, we had administrative law judges available to hear cases but we didn't have enough trial attorneys in the field ready to try those cases. So as I said in my written testimony, I think we've hired 143 professionals, alone, this year.

And if we have the staff, that we can investigate the cases, prosecute the cases, and get to trials relatively quickly, I think that's in everyone's interest. Everyone's interest. And I'll tell you, if I'm permitted to stay at this agency, what I'd really like to do is return to a situation where we have trials within three or four months of a complaint being issued.

The long, drawn-out litigation, the attorneys do fine. But the public doesn't.

Mr. Tierney. Attorneys always do fine. Well, attorneys do fine when it's drawn out, Mr. Chairman. And the fact of the matter is, this Congress, you know, has had times when it hasn't been all in favor of the NLRB or with the work that it does. And I think of recent years, sometimes the effort has been made to cut the budget and, then, complain about the fact that it isn't doing its work.

Hopefully, we're not going to continue on that path. We're going to provide a budget, we're going to be able to do some of things that Mr. Page recommends and, then, we'll probably less of the squabbling. But I yield back the balance of my time.

Chairman Boehner. Thank you, Mr. Tierney. Mr. Petri.

Mr. Petri. Thank you, Mr. Chairman. Thank you for holding this important hearing. I understand you're a scholar of the NLRB on appeal, Mr. King. And if you'd care to comment on the percentages we just heard.

Mr. King. I'd be pleased to do so, Congressman. The statistics that Mr. Page stated are correct. No question. But what gets lost in the discussion is that 30 plus percent of cases in which the Board has reversed, in whole or in part, are the more significant cases, in many respects, that come before the Courts of Appeal.

Cases where there are disputed facts or the law is not clear or both. And we have cited in our testimony instances in 60 different matters just to the last two years where federal Courts of Appeal made up of both Republican and Democrat administration, nominated and confirmed judges have been critical of the Board and have reversed the holding of the Board. Now you can't lose sight of that.

And we've had discussion here this morning about the changing nature of precedent. How do you advise a client what the law is today - on the union side, on the management side? It is not good law, I submit; it's not good policy to constantly have change like we have today. No matter where that change comes out, at some point, finality is important. And that's the message SHRM would bring to this committee.

Courts of Appeal have, in fact, identified this problem and it's a real problem that needs to be addressed.

Mr. Petri. Thank you. I have another area that I really wanted to get into a little bit. I understand someone on this panel said that these are complex and sophisticated labor questions and so on. But I can't understand why the right to protect the individual's ballot privacy is all that complicated. And why, if the purpose of the Act is to protect working people in the United States, the Board would move in the direction of allowing others to subject individual workers to intimidation, to get them to sign cards as opposed to a secret ballot.

Can someone explain all that to me? It doesn't seem very sophisticated or complicated or protecting the public if that's the purpose of the law. But I understand I may be simple minded.

Mr. Coppess. I think, maybe, you're slightly, if I'm understanding what you're talking about, if you're talking about card-check recognition and sorts of things like that. It's not a question of intimidating anybody; that's unquestionably against the law. It's a question what sorts of showing of majority support will be taken as indicating sufficient employee interest in unionizing to give rise to the employer's obligation to recognize. And the employer, under current law, has the right to insist on an election without recognizing the union.

Now if they agree, in advance, that they're going to submit to other system of checking the majority sentiment of the employees, decisions of the Board in certain circumstances limit their right to renege on the agreement. But it's no question of intimidating people or not having sufficient showing of majority interest.

Mr. Petri. Well, I understand that - Mr. Cohen indicated that they have these neutrality agreements where someone in the steel industry or communications industry where it represents one location and the employer bargains that he will not insist on that right. So now you're down to what can the individual worker do. Can they say, no, we want a secret ballot? Or, have they, then, lost that?

Mr. Coppess. But the workers can petition for a representation election if they want to.

Mr. Petri. Mr. Cohen.

Mr. Cohen. But it's a matter of contract before that happens. There could well be recognition of the union based on the fact that their right to the ballot box has been sacrificed at the bargaining table.

Mr. Coppess. But not if a majority of the employees in the unit haven't first stepped forward and say they want the union.

Mr. Cohen. But the stepping forward is not by a secret ballot election. The stepping forward is by the collection of authorization cards.

Mr. Coppess. Which the employees are arbitrarily sent.

Mr. Cohen. Let me just finish this sentence, if I might. Which those of us in the field know are much, much less reliable indicators of and employee's support than is a secret ballot election.

Mr. Petri. But we all go through elections and we know the importance of a secret ballot. The people will say one thing and you'd think if this is a law to protect working people that that would be given some - that it would be in the spirit of the law in the favor of not having someone else bargain away or sign away someone's ability to have a secret election and subject them to the reality or the potential or just, maybe, the sense.

If someone asks you to sign a card -- I mean, we know the reality of how this works and this is -- the whole purpose of the Act is to have a controlled and get people to end up working together even though there are tensions there. And this moves in the opposite direction; at least, so far as the individuals. Because I've known people who refused to - who'd be happy to sign up their employees with a union but only if their workers voted to do it. And they would vote it down and, then, they would be intimidated to sign up anyway. I know that violates the law but this goes on all the time.

So maybe, Mr. Cohen, you could explain this area to me.

Mr. Cohen. No, I believe that you have the area exactly correct. I mean, this is, indeed, a problem area. We have the Board not typically getting involved in these kinds of matters because if it is something that the parties agree to at the bargaining table, unfortunately, the rights of the individual employees might well be sacrificed.

The additional problem comes in, as we saw just in the last month, where the Board in the Pall Biomedical case, determined that these kinds of arrangements are mandatory subjects of bargaining. And that means that not only can it be agreed to at the bargaining table but that we can have strikes over that issue, as well.

So, if you will, we're clogging up the bargaining over the already represented employees, over the union's institutional interest at getting stronger by having other employees and the employer.

Mr. King. Congressman, if I may. You are right on point. The Board's decision in New Otani Hotel, which is in our paper, is even more striking when we look at the facts there. Here we have a hotel that was picketed, hand billed, request for recognition made by the union through a card-check. They wanted a neutrality; not election card-check.

The employer said, I'm not sure where this is going but we should have an election. And under the Act, the employer under certain limited circumstances can file with the Board a request for an election. That is to say, when a union is making actions or engaging in actions of an organizational nature.

But the Board said that the employer, after four years of this type of activity was not entitled to have an election in that setting. The employer couldn't get to an election, the employees couldn't exercise their Section 7 rights. I don't understand that; SHRM doesn't understand that.

The other side of this discussion is, once an employee votes to choose representation, trying to get another vote if an employee wishes to no longer have representation, is very, very difficult. In fact, we've cited in our paper and Mr. Cohen has mentioned in his paper, difficulty in employees having a vote because we have these blocking charges that we referred to earlier.

Could you imagine if Congressional elections or presidential elections were blocked for four years, six years? How could we run our country? That's what we're having right under the National Labor Relations Act.

Chairman Boehner. Mr. Holt.

Mr. Holt. Thank you, Mr. Chairman. I think, maybe, just for a moment, I would like to pursue this digression on card-checks and the like before I get to what I think is of importance here. And that is, I would say to my colleagues that there are many ways of gauging public sentiment. And, indeed, both for us as well as for labor organizers, it's the vote that really counts.

I've heard it said that some of my colleagues here in Congress used questionnaires and even opinion polling to gauge the sense of the population. So there are other ways to do it. But really what I wanted to talk about was to say that there are others of us here, along with Mr. Andrews, who give a hoot about this because I recently, in fact, two days ago was visiting with a couple hundred workers who have been out of their jobs in Central New Jersey in what might be called a strike, might be called a lock-out. It's not quite clear.

And when I look at the statistics of how the NLRB is working, I'm concerned that here's a two-year strike that I feel is, at least, anecdotal evidence that's available to me that the NLRB is not able to move as rapidly as I would like to say. You may not be familiar with the dramatic strike in New Jersey but I would appreciate your comments on -- either now or later -- as you have time to look into whether this is a matter of understanding short staffing, underfunding, or whether there are other things, Mr. Page, that are preventing any action there.

Mr. Page. Well, one of our problems - we have hired more staff and we're training. And if we get another good budget, we're going to have even, hopefully, more staff next year until we get to -- hopefully, again, my target is to -- we can get to hearings in about three months from when complaints are issued.

But the statute does have some built-in time delays - we have to have a charge, we have to have an investigation, we have take care of complaint issues, a hearing before an administrative law judge, an appeal to the Board, and on to the Court of Appeals.

Now just the time process from the charge to a Board decision, is almost two years right now. Whether we like it or not, it's almost two years.

Mr. Holt. Let me tell you. It is tough for these 200 workers. And I really see this - it is something worth giving a hoot about.

Mr. Page. Well, in a real egregious situation we have the authority under 10(j) to seek. If there are violations of the Act, clear violations of the Act which are causing irreparable harm, we have the right to seek 10(j) relief. It's relatively rare, however. The agency process is something like 30,000 unfair labor practice charges a year.

In the 10 months I've been there, I've been authorized to seek 10(j) relief, I think, in 66 cases. But that's what, hopefully, is available to unions or employers if there are really egregious violations which are causing irreparable harm.

Mr. Holt. Thank you. I would like to pursue that more with you. And now for a moment in the time remaining, I'd like to ask a follow-up question to Mr. Andrews question because I didn't really hear the answer to what remedies, what sanctions should be applied to an employer who has behaved in the way that Mr. Andrews postulated.

Let me turn to you, Mr. Coppess. What would you like to recommend to us, would be sanctions that would make a difference?

Mr. Coppess. Of course, as Mr. King was indicating particular remedies depend on the particular effects of a case. But I would say, as a matter of general principle, first of all, the people harmed by the illegal conduct should be fully and effectively compensated. Secondly, the conduct - the response of the legal system to the conduct should be such that the person engaging in the unlawful behavior doesn't find it profitable to do so. And that other similarly situated people don't find it profitable to plan to engage in illegal behavior because they know the sanctions don't nearly outweigh the benefits to them. I would think those would be two minimal points that are far from that in the current remedial regime.

Mr. Holt. Mr. Cohen, would you care to differ or concur?

Mr. Cohen. Well, once again, it is going to depend on the circumstances of the case. We have a proposition under the law right now that does not compel agreement on specific matters. The NLRB is there to police the bargaining, to make sure that mandatory subjects of bargaining are discussed, and that so-called permissive subjects can be discussed as well.

It is a fundamental precept of this Act which this Congress could, of course, change that the government will not write contracts for parties. Like Mr. King said, we believe that companies that are found to have violated the law do not have that right to engage in that kind of conduct. And we're not here holding a brief for them, at all.

But what the Congress would have to decide is whether it wishes to rewrite that law and say that, for example, in the circumstance like you're saying that employees will automatically be given ``x'' percent wage increase, etc. That's a way to go. I personally believe the 10(j) route that Mr. Page talked about is a better way to go. And Section 10(j) has been in the Act since 1947.

The judicious use of it, I think, is a very important tool and it's bit of a pyramid, as well, because while there may be 66 authorizations, I'm sure there are hundreds and hundreds of cases where it's been threatened. And the mere threat to engage in Section 10(j) injunctive activities has its own brute effect. So that would be my response.

Mr. Holt. Thank you. I see my time has expired. Thank you, Mr. Chairman for granting me the time.

Chairman Boehner. Mr. Page, in Mr. Cohen's written testimony, he mentions a number of cases which the Board has recently overruled precedent and is making it far more difficult for employees to exercise their Section 7 rights not to be represented by a union.

And I don't want to get into any active cases but I do want to ask you about the Board's decertification process because the subcommittee hears often that this process is not adequate. Could you explain to me what a blocking charge is? It's been mentioned several times. I want to make sure I understand it clearly.

Mr. Page. A blocking charge occurs when either side or a group of employees files a charge with the agency. And a regional director, after conducting an investigation, usually quite rapidly because he knows there is an election pending, determines that there is evidence which leads to a prima facie case. And that particular charge is one which may take the holding of a fair election or it may go to whether the showing of interest.

As you probably know, it requires a showing of 30 percent of the employees in order for there to be an election. It's possible and there have been some cases where one side or the other, has tainted people or intimidated people in gathering that showing of interest.

Now that is the sort of a charge that we would - the agency says would block an election or their unfair labor practices which, really, create an atmosphere of intimidation. The agency believes that it would not be the right time to hold an election. And until that unfair labor practice is remedied, whether it's a threat to close or a promise to grant benefits or discharges of key people or, maybe, on the union side, a threat of physical violence. Until there are remedies, the agency simply does not want to hold an election in such an atmosphere.

Chairman Boehner. Well, what procedures does the Board have to prevent a union, as an example, from filing charges simply to delay the consideration of the decertification vote?

Mr. Page. Well, again, both my past experience and my present experience is regional directors don't want the process to be gained. I've been there. What happens is the regional director calls the charging party and saying, if you're trying to file a frivolous charge to block this election, I'm going to put you to your proofs. You've got 48 hours or 24 hours to produce your evidence. And unless I find that there's evidence here that would lead to a prima facie case, I'm pitching this charge and that election is going forward.

So that's our safety mechanism. The regional directors do not want this process gained, we don't want complaints that blocking charges are interfering with worker rights. And my experience -- both before and now -- indicates that we quickly investigate these charges and will only block an election where we find evidence leading to a prima facie case.

Chairman Boehner. There's been some discussion this morning here of remedies and I'd like to ask each of the four of you whether you believe that the National Labor Relations Board has the right under the current law to impose additional remedies. Mr. Page.

Mr. Page. Well, Section 10(c) of the Act gives the general counsel and the Board the authority to issue remedies to effectuate the Act, to restore the status quo, to make the victims whole. And the remedies I initiate -- well, it's been called the remedies initiative in my April 10th speech -- I think fulfill those tests. And I'd like to just point out, I'm trying to deal with what I believe are egregious violations. I'm talking about situations that there has been increase in discharges for organizing activity.

Chairman Boehner. Has the Board ever entered into these types of remedies before?

Mr. Page. Well, one of the areas I was talking about is a case called Fieldcrest Cannon, where there - I think the employer there, probably, committed about every violation you could list. And the Board approved rather than a bargaining order - and let me say, I'm not a big fan of bargaining orders. You litigate those cases for five years, six years, seven years and you get to the Court of Appeals and the argument is there's been turnover in employees, there's been turnover in management. Why are you imposing a bargaining relationship on people who weren't there when the unfair labor practices were committed?

But Fieldcrest Cannon let us do something other than litigate these sort of bargaining order cases. It suggested let's do something else than just post that notice on the wall. Maybe, the notice should be read to the employees, the union should have access to the bulletin board and, perhaps more controversial, the union should get access to the plant during non-work time and in non-work areas.

Again, this is a situation where the organizing drive is nipped in the bud. The unfair labor practices kill the organizing effort. So my preference is rather than litigate one of these bargaining order case, is the appropriate remedy should be let's try to restore the status quo. Where was that organizing drive before these unfair labor practices occurred? Let's give the union access to the facility, access to the bulletin board. Let's make sure this notice is something more than wallpaper on the wall. It gets mailed to the employees, it gets read to the employees so they know their rights.

Chairman Boehner. Mr. Cohen.

Mr. Cohen. With respect to the extraordinary remedy case, the Fieldcrest Cannon one that Mr. Page has talked about, as I've said to him and as I've said in public as well, I believe that there should be those kinds of extraordinary remedies for the extraordinary violations.

Chairman Boehner. Well, do you think that that's covered under existing law?

Mr. Cohen. Clearly, it is. Clearly it is. The problem comes when one tries to say that now that we've got that in place, let's now apply that to the routine cases. And that's where I depart company and I believe that that would be and inappropriate use. With respect to other pieces of Mr. Page's remedial initiatives, the first deals with consequential damages.

So that, if, for example, an employee loses -- gets fired -- and let's posit, it's an unlawful firing for union activities and, then, loses his home. Mr. Page has made no secret of the fact that they are searching for those cases and are prepared to go to complaint and get the damages that flow from that employee, having not just lost his job but lost his home, as well.

I see substantial difficulty in the statute as it's written right now to get those kinds of damages. And I'd point out that there's a flip side to it. The flip side is what happens occasionally when there can be a picket line, there can be picket line violence and somebody can be beaten up, for example.

And there had been an attempt over the years to have the Board order the union to pay the hospital bills and doctor bills of the employee that had gotten beaten up. And the Board said, we don't have the authority to issue those kinds of consequential damages. So that would require the kind of overruling of precedent that get some of us who represent employers a little bit concerned.

Lastly, there's a so-called front pay initiative where there are other employment statutes which provide for the notion of front pay in certain circumstances for employees that were unlawfully terminated. The National Labor Relations Act, I believe, is a different animal than those other statutes. We've heard testimony here today that there is not a private right of action; that it is a public statute. And that goes to this issue as well.

In my judgment, there's not sufficient statutory authority right now to award front pay damages. But that's a triable issue and if those cases are brought, the Board will have an opportunity to decide the cases; the courts will have an opportunity to review them.

Chairman Boehner. Mr. Coppess.

Mr. Coppess. Yeah, I think there's no question that the Board has authority to frame new remedies. The Supreme Court has, over and over again, made the point that shaping remedies is peculiarly a task for administrative agencies. I think, maybe, most recently in the A.P.R. Air Freight case but it cites lots of cases there. And for just that reason, the courts give very high deference to the Board's choice of remedies.

As to front pay, I think that's a perfect example. It was well-known that the Title VII of the Civil Rights Act of 1964, its remedial provisions were expressly based on the remedial provisions of the NLRA. And the Supreme Court often drew on NLRA law in marking out the proper bounds of Title VII relief before the 1991 amendments.

And the Supreme Court in Franks v. Bowman Transport made perfectly clear that front pay is a remedy that's available under Title VII and I don't understand why it wouldn't be available under the NLRA. But the point I really want to make is that when you're talking about remedies, shaping remedies really well-recognized in administrative laws as one of the strengths of administrative law. That the hands-on entity that's enforcing the law is supposed to be able to tailor the remedies to the situations that it's meeting over and over again. And the courts basically lay off in reviewing that for just that reason.

Chairman Boehner. Mr. King.

Mr. King. First, Mr. Chairman, any change in remedies needs to come to this body of the nature we're talking about. They're controversial, they're arguable under the statue. You all should go back and look at the underlying statute. I did that last night, again, anticipating this hearing. Section 10(c) of the Act indicates ``reinstatement of employees with or without backpay.'' That's the terms in which the statute discusses remedies.

Furthermore, in reference to the Supreme Court indicating the Board has leeway in this area, I would agree with Mr. Coppess to a point. In SHRM's paper to this committee, however, we point out two important Supreme Court decisions that clearly limit that ability. For example, the Supreme Court has said ``authority to order affirmative action does not confer at punitive jurisdiction enabling the Board to inflict any penalty it may choose even though the Board is of the opinion that the policies of the Act may be effectuated by such order.''

Further, the Supreme Court had indicated in the Bell & Howell case in 1979 that the Board may not justify a remedy solely on the ground that it may deter future violations of the Act. That's good Supreme Court law. You can't get around that. If we go in the direction that's being suggested, we're going to be in court, we're going to be here before this committee, and we're going to have disagreements. I would suggest, again, this body and the other body should consider those types of new remedies.

Chairman Boehner. Mr. Andrews.

Mr. Andrews. Thank you, Mr. Chairman. I would just like to add a couple of comments. Mr. Page, I'm very supportive of what you said on the 10th of April and I would encourage you to continue to pursue, what I view, as a balanced and sensible approach to these remedial issues.

I notice that Mr. Cohen drew a distinction, which I think is correct, between routine fact patterns and egregious fact patterns. And it occurs to me in hearing him draw that distinction that what I think we have here is a dog-bites-man story. Which is that each institution that's involved in this decision-making process, in my view, is doing its job as it should.

The National Labor Relations Board is making a determination as to which cases are routine and which are egregious which is, they used to tell us in law school, was a mixed case of fact and law, which is exactly why we have administrative agencies to analyze such questions.

The Courts of Appeals do their job. In cases where the Courts of Appeals on which sit judges appointed by President Reagan, President Clinton, President Bush -- I suppose as far back as President Kennedy -- they make decisions. Appellate judges make decisions as to whether the administrative agency has exceeded its statutory authority. They do their job.

And when we do our job, I think the Chairman is to be commended for having us to do it here today which is to consider whether the parameters within which an agency operates ought to be changed as a matter of public policy. I'm certainly willing to engage in that discussion today and on into the future. I have strong views about how it ought to be changed.

I believe that consequential remedies set forth in the statute ought to be part of it. But I don't mean to suggest that the failure to expressly state those consequential remedies means that it's not within the statutory powers already given to the NLRB. What I don't think we should do is Monday quarterback or second guess. If there has been a disagreement about the wisdom of decisions by the Board after vigorous advocacy before the Board, we have a procedure to deal with that which is the appellate process.

And if we, in fact, see a pattern of decisions in which the Appellate Courts and, eventually, the Supreme Court feels that the Board has overstepped its bounds, decisions will be knocked down. And if we in the Congress feel the decisions are going in the wrong way as a matter of public policy, which I do not, we have the right to alter that.

So I think that the process here is working, essentially, as it should. That doesn't mean in every decision it's right, it doesn't, certainly, mean that there's anything approaching unanimity on every decision. But I would suggest that - I don't think that the hearing has really showed any pattern as some of the witnesses have suggested. I have no further comments.

Chairman Boehner. Mr. Petri.

Mr. Petri. Thank you very much, Mr. Chairman. I do want to give Mr. Cohen and Mr. Coppess to respond, if they wanted to, to the concern that was expressed by Mr. Page to the idea of whether precedents are being frivolously or destructively overturned in creating all the rise and uncertainty and undermining the respect for the statute in the process.

And Mr. Page said, no, there's no real indication of that, as statistically, the cases going to the courts are basically flat on overturns or even trending down in the last year or two. Mr. King said, well, you can't look at statistics; you have to look at the subject matter and the seriousness of what you're talking about. And there have been some major disruptions, if you will, of precedent in the last couple of years and that's what significant.

Mr. Cohen, you indicated, as a member yourself, you felt, maybe not 100 percent bound but you're pulled by the merits of some consistency even if you disagreed with it. And, therefore, would not likely overturn precedent. Could you comment on that?

And Mr. Coppess, as you know, what goes around, comes around. You can make a great case for overturning precedent and it'll come back and bite you in a couple of years, possibly. I would really like you to give us your best judgment on where we stand. Is, in fact, there's an erosion on the court? Is this the way business has always been done? If there has been erosion, what would we do?

Mr. Cohen. I'd be happy to respond. I've been in this field for almost 30 years now and this is going to be anecdotal. But from my perspective, we've reached an unprecedented state of overturning of precedent. There is a serious destabilizing effect that comes from rather wholesale reversals of precedent.

In terms of the court review, I believe Mr. King is right and I don't want to quibble with Mr. Page's statistics. But the thrust of Mr. King's testimony and mine, has been showing cases in the last year or so where there's been this vast overturning of precedent. I believe that Mr. Page's statistics don't reflect those cases. It takes longer to get decisions out of the Court of Appeals in those cases than we've had.

In addition, quite a number of them involve representation matters. Representation matters, themselves, are not directly appealable to the Court of Appeals. Certain times parties get tired of the litigation and don't take the cases up. So we can't just look at the statistics and say, we have an answer to this. The courts are giving the Board the same reversal rate as they've had in the past. I believe it's more complicated than that. It's a difficult issue.

And if I might clarify one point because I just want to make sure Mr. Andrews didn't misunderstand what I was saying. I do believe that the Fieldcrest Cannon remedies are appropriate for extraordinary, egregious violations of the Act. They did not involve front pay or consequential damages. Those are new issues which are being floated; new initiatives, if you will. And I just wanted to make sure there was no misunderstanding on that point.

Mr. Coppess. Is there time for me to respond or do you guys need to go vote?

Chairman Boehner. No, Mr. Coppess, no. I think there's a recess on the floor.

Mr. Coppess. Okay. You know, I started doing a lot of work in the Courts of Appeals on NLRB cases during the Dodson Board. So I know what it's like to suffer a lot of NLRB reversal of doctrine. Many of these cases are reversals of the reversals and going back to earlier precedent. And as I said earlier, I'm quite confident that these cases are going to weather the petition for review process in the Courts of Appeals.

They're very well reasoned; I recommend the committee study them closely. They track out what they're going back to and why; that's the upset in expectations. I think that's a legitimate concern. But I don't think you can talk about expectations in the abstract. You have to talk about expectations in terms of the purpose of this statute.

And yet, for example, to take the Sturgis decision, the expectation an employer has built up or have his permanent second-class group of employees who can't effectively combine with other employees in similar situations to collectively bargain. Well, that expectation is due to be upset and there's no legitimate claim in terms of the statutory purposes that that situation should be allowed to go on simply because it's gone on for the past 10 years.

And so, you know, I would agree that stability is one good but fulfilling the purposes of the statute has always got to be the touchstone.

Mr. Cohen. If I could have just a very brief follow-up. When I served on the Board from '94 to '96, that Board was not shy, at all, about overturning precedent. It happened quite a bit. Not one of those reversals of precedent related to cases from the Dodson era since there have been some reversals of Dodson precedent.

But for the two-and-a-half year period of time when I served, each and every one of the reversals of precedent related to, yet, different areas.

Chairman Boehner. We're going to get to the statute here in a moment. Before I do that, Mr. Page, I want to get back to this blocking issue. We got diverted. What checks and balances do you have on regional directors to ensure that their decisions are unbiased?

Mr. Page. Well, let's talk about one of these blocking charge cases. Let's assume a regional director has made a decision, one way or the other on a blocking charge. We're either not going with the election or we're blocking this election. Either party has the right to take an appeal of that decision to the Board and re-litigate that, either side of the issue.

So you get two bites at the apple on this blocking charge issue to try to make a determination if the alleged unfair labor practice really do taint the election atmosphere at that particular location. And I think that's the best check and balance.

Chairman Boehner. What's the average length of time for a decert. election?

Mr. Page. Well, normally, if they're not blocked, they're held fairly quickly. They're held as quickly or even quicker normally than a - what I would call a normal RC election because as a general rule, there's not a dispute between the parties on what the appropriate bargaining unit is.

Sometimes when you have a newly organized unit or an attempt at a first election, you have a dispute over what the unit is that delays the process. What my experience, assuming there is no blocking charge, is that the elections -- decert. Elections -- are held relatively quickly. And by that I mean, well inside 45 days from the date of the filing.

Chairman Boehner. Yeah, but typically, there would be a series of blocking charges files that would drag these out for sometime.

Mr. Page. Well, again, not necessarily. And I'm speaking both in my prior life as an advocate and as the General Counsel. Regional directors do not want this process gained. They know what the parties are up to -- one or the other -- and they, at least in my experience, require an immediate production of evidence related to that blocking charge.

And if there's a series of these blocking charges, again, in my experience, the regional director gets tighter and tighter on the type of evidence he's going to accept and how long he's going to let this process be gained.

Chairman Boehner. Well, my concern is that is it fair to the employees who want to vote on the issue of retaining union representation. Is it fair to them to deny that vote, for what could be a very long time, simply because, as an example, the employer may be found to have committed an unfair labor practice?

Mr. Page. The question is, does that unfair labor practice, though, go to the very fairness of the election, itself. Has there been a threat? For example, if the union is not removed, we're going to close plant. Just hypothetically, you could see how that's sort of a question hanging over voters heads, makes it really difficult to hold a fair election.

Until there is an actual decision or remedy of such a threat, the Board -- and I'm defending the Board here -- these are Board policy decisions. The Board says, until we remedy an unfair labor practice which could taint the election atmosphere, it's simply not fair to conduct that election.

Mr. King. Mr. Chairman, may I just a moment on your question? I asked last week for the average time it took from filing the decertification charge to the holding of an election. And, apparently, that data is not available. I think it would be interesting to see. Be careful not to get back the medium time because that's half before and half after, as you know.

What's important to ask of the Board here is, what is the shelf life -- average shelf life -- of a pending decertification petition before it gets to an election?

Chairman Boehner. Can you supply that to us, Mr. Page?

Mr. Page. We can try. We are developing a new case tracking system now on all of our cases. We can try to get you that data. We may not separate breakout this data on our ``D'' cases. But we'll try to do so. And I know once we get our new case tracking system in place in all of our regions, it's this type of more precise data that we're going to be able to supply you.

Chairman Boehner. If you could, I'd certainly appreciate it.

Mr. Page. We'll do so.

Chairman Boehner. Let me, before my time runs out, let's all step back a few steps from the trees and take a look at the forest. There have been no significant changes to the National Labor Relations Act since 1959; 41 years. Now over the last 41 years, the workplace has changed dramatically. Certainly, over the last 10 years the changes in our economy and, then, the changes in the world economy have brought significant changes to the relationship between employers and their employees.

Now I'd like to ask each of the four of you what you think the current state of the National Labor Relations Act is and whether, in fact, it ought not to be rewritten and brought into the 21st Century.

Mr. Page. I am smart enough to know to avoid that question because I take the statute as it is given me and, as the General Counsel, I am obligated to enforce it. If I advocate labor law reform of any kind, I'm going to get in trouble. I am going to ask for adequate funds to investigate charges, prosecute complaints, and respond to Congressional inquiries.

But when it comes to amending the statute, I have no opinion.

Chairman Boehner. Well, Mr. Page, if you'll notice, we try to be very fair here. But one could argue you might be trying to duck this question. And the fact is, you gave this speech in April and suggested that remedies, you know, might be appropriate circumstances for remedies. And I know it's probably not fair to ask you to take off your General Counsel hat and give us your opinion but the fact is, you've been around this field a long time and you know an awful lot; more so than I do about the National Labor Relations Act and the National Labor Relations Board and the condition that it's in.

In the amount of work that's coming to you as a result of the fact that, in my view, of the statute, is woefully out of date.

Mr. Page. I'm going to admit to ducking the question. I'll plead guilty to that. I can tell you - let me, though, respond this way, what I'm trying to do for a mature statute. I am really disappointed that we still have some egregious violations of the Act occurring on a regular and recurring basis.

And I think if we can streamline the 10(j) process, if we can tweak some of the agency's remedial authority, that's my focus, the egregious violations of the Act for a 65-year-old statute. I think in order to hold ourselves out to the public that we're protecting their rights, if we can't do that, then what are we doing as an agency. So that's been my focus.

As far as - I really am going to plead guilty to ducking on amending the statute, though. I know better than to make any suggestions.

Chairman Boehner. We have three gentlemen that are going to follow and I'm sure they have their own opinions. Mr. Cohen.

Mr. Cohen. Right. And if I might support Mr. Page for just one moment. There is a long history and tradition at the NLRB that sitting Board members and General Counsels don't come in on the wisdom of changing the law. I think that's a very good tradition and an important tradition. And it's when the prior chairman -- Chairman Gould -- broke that tradition that the Board got into a great deal of difficulty.

So if I can, I want to commend Mr. Page for - it's not easy to sit here and duck the question and admit that you're ducking it. But I want to commend him for ducking it.

Chairman Boehner. As I said earlier, I'm not a lawyer; I'm a businessman.

Mr. Cohen. Gotcha.

Chairman Boehner. I understand. Thank you.

Mr. Cohen. But those of us who served on the Board and are no longer serving on the Board, don't feel these compunctions, whatever. And I'm happy to try to address your question, if I might. From my perspective, there is a genius to the National Labor Relations Act. It was controversial in 1935 when it was passed; it was controversial when it was amended in '47 and '59; and it is still controversial.

If you're an employer, you'd like to run your business by yourself. If you're employees, you want the right to engage in your concerted protected activities and union activities. So there is a tension which is built in. We have a law that says, collective bargaining, yes, but only for those where it's been freely chosen.

I think the amazing thing is that the Act is still as relevant today, 41 years since it was last amended. And can it use some changes? Absolutely. For example, I believe in the competitive world economy that we find ourselves in today, the Team Act, which was passed by Congress and vetoed by President Clinton was a very welcome edition. It was a very important matter to have to enable us to have the employers use their most important resource_their employees' brains. And, unfortunately, it was not amended in that way. I think there always will be this built-in tension.

Where I have my problems is where the Board ends up de facto, amending the statute by changing the rules and regs. along the way. I don't think there's a whole lot that Congress needs to do. I just don't want to see it done by a surrogate for Congress.

Chairman Boehner. Mr. Coppess.

Mr. Coppess. Well, I wasn't sent here with the legislative program, but in an attempt to not duck the question and calls for not getting in trouble with my employer, I want to answer that it occurs to me that seems pretty obviously, is the point Mr. King made about the current statute not authorizing punitive remedies.

Congress saw the necessity to amend the other civil rights laws to add punitive remedies in order to remove any incentive employers may have to violate those laws. And it seems to me that it's even more needed here because, you know, you know you cannot make benefit as derived from discriminating against people on the basis of gender, race, or other the bases that are provided in the other civil rights law.

But there is an economic benefit that has been demonstrated and documented in violating this law. And punitive remedies really are necessary. I mean, truly, punitive remedies; not compensatory remedies that someone may think of as onerous because they've caused a lot of damage. But remedies that are designed to deprive law-breakers of the economic benefit they get from breaking the law. I think that that would be beneficial change in the law.

Mr. King. Thank you, Mr. Chairman. First, I also would like to commend General Counsel Page for his limited response to your question. That's evidence of the character of this gentleman sitting at the table today. He has a strong commitment to the Board as an institution. As a management lawyer, I respect that and I respect him. And SHRM, as we noted at the outset of our remarks, respects Mr. Page and many of the things he has done.

Putting that aside answering your question, let me deviate one minute. I wish Mr. Page was sitting in the regional office chairs and responding the way he indicated the response should be on blocking charges, Mr. Chairman. He stated the administrative procedure properly. It's not being conducted in the field that way. That's another matter for, perhaps, additional discussion.

In answer to your question, this statute has serious problems and we can't duck it. I understand Mr. Andrews' point, we have a system that has checks and balances and those checks and balances, ultimately, perhaps, work. If Mr. Holt were here, I would want to respond to his point.

You have workers that are out on strike, perhaps, locked out. They don't have the means of income, there's delay. We've identified case handling delay. Delay's a problem. And this statute is not good in addressing delay. It's just not set up that way.

Second, the changing composition of the Board -- Democrat or Republican or Independent -- we have a constant change in who sits on this Board. We have recess appointments. We have a General Counsel here today that's on a recess appointment. We just lost a Board member, as I mentioned earlier, Member Brame. Member Fox, we'll lose her at the end of this Congress in all likelihood. That's not good. That's not healthy.

Next, we have the whole question of independence of the agency. As Mr. Page indicated, the party in power gets to nominate three; the party out of power has two. I'm not so sure that's healthy. I think we need to relook at that. Further, we have the real issue, the practical issue that more and more people that are qualified simply are not going to get involved in this political battle to sit on the Board or in the Office of the General Counsel. Why should they?

Why should someone with Mr. Page's qualifications, which are excellent, go through this process of not being able to be confirmed, one way or the other? It's not good. It's not healthy for labor or management. We have to do something. I'm not sure exactly what it is, though. I'm not empowered by SHRM, today, to fully address your question because this is a policy matter that will have to go through the SHRM policymaking apparatus.

We do have, in our paper, suggestions. If the current structure is kept, that we should look at increasing the length of term of Board members and the General Counsel. Maybe, we need to make them more like District Court judges with respect to pay and benefits. It's shocking to know that a Board member can only appoint one member of his or her staff; that's it. They inherit who's already there.

That's not to say that the people that are already there are not competent and capable; indeed, they are. This agency has some very intelligent and competent people throughout the country and here in the District. But there's very little ability a Board member can often do with one appointed staff to look into the law in the caseload that he or she faces.

In summary, Mr. Chairman, the system needs serious attention.

Chairman Boehner. We have had several examples over during my tenure here in Congress where Congress just never quite got around to revising some serious statutes or the telecommunications rewrite that was passed in 1995, would be one example, where we abdicated our responsibility and, basically, turned policy-making over to federal agencies who were really there not to do policy but, in fact, to be a regulatory agency.

You can look at financial modernization. The role that we put the fed, the Comptroller of the Currency, the Office of Thrift Supervision and others in because Congress walked away from its responsibility to bring our financial service laws into the 1990s, much less where they were in the 1940s.

Again, forcing government agencies to exercise far more than their responsibility in the policymaking area. And as I listened to the testimony today and look back over the 10 years that I've been on this committee and looking at this question, it seems to me that the Congress has a responsibility to sit down and to begin to look at where the state of the National Labor Relations Act is and what we can do to improve the process for both employees and employers.

And this question I've posed in other arenas in the labor area, in the workplace area. When you look at the wage and hour law, when you look at Landrum-Griffin and look at a host of these laws that govern our workplace, most of them are woefully out of date. And I don't know what the outcome of the election will be but I could suggest that, sometime, when we get back next year, we as the Congress, ought to spend some serious time working with all sides in trying to improve the statute.

With that, the hearing is adjourned. Whereupon, at 12:35 p.m., the subcommittee was adjourned.