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OVERSIGHT OF THE NATIONAL LABOR RELATIONS BOARD
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HUMAN RESOURCES
of the
COMMITTEE ON GOVERNMENT
REFORM AND OVERSIGHT
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
__________
JULY 24, 1997
__________
Serial No. 105-77
__________
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COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT
DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida GARY A. CONDIT, California
JOHN M. McHUGH, New York CAROLYN B. MALONEY, New York
STEPHEN HORN, California THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida ELEANOR HOLMES NORTON, Washington,
THOMAS M. DAVIS, Virginia DC
DAVID M. McINTOSH, Indiana CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South JOHN F. TIERNEY, Massachusetts
Carolina JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey ------
VINCE SNOWBARGER, Kansas BERNARD SANDERS, Vermont
BOB BARR, Georgia (Independent)
ROB PORTMAN, Ohio
Kevin Binger, Staff Director
Daniel R. Moll, Deputy Staff Director
William Moschella, Deputy Counsel and Parliamentarian
Judith McCoy, Chief Clerk
Phil Schiliro, Minority Staff Director
------
Subcommittee on Human Resources
CHRISTOPHER SHAYS, Connecticut, Chairman
VINCE SNOWBARGER, Kansas EDOLPHUS TOWNS, New York
BENJAMIN A. GILMAN, New York DENNIS J. KUCINICH, Ohio
DAVID M. McINTOSH, Indiana THOMAS H. ALLEN, Maine
MARK E. SOUDER, Indiana TOM LANTOS, California
MICHAEL PAPPAS, New Jersey BERNARD SANDERS, Vermont (Ind.)
STEVEN SCHIFF, New Mexico THOMAS M. BARRETT, Wisconsin
Ex Officio
DAN BURTON, Indiana HENRY A. WAXMAN, California
Lawrence J. Halloran, Staff Director and Counsel
Doris F. Jacobs, Associate Counsel
R. Jared Carpenter, Clerk
Cherri Branson, Minority Counsel
C O N T E N T S
----------
Page
Hearing held on July 24, 1997.................................... 1
Statement of:
Allen, Robert E., inspector general, National Labor Relations
Board, accompanied by John Zielinski and Michael Griffith;
and Carlotta Joyner, Director of Education and Employment
Issues, U.S. General Accounting Office..................... 137
Gould, William B., IV, chairman, and Fred L. Feinstein,
general counsel, National Labor Relations Board,
accompanied by Alfred L. Wolff, chief counsel; Robert A.
Giannasi, chief administrative law judge; and Harding
Darden, budget officer..................................... 14
Yager, Daniel V., vice president and general counsel, Labor
Policy Association; Jeffrey H. Joseph, vice president for
domestic policy, U.S. Chamber of Commerce; and Jonathan P.
Hiatt, general counsel, AFL-CIO............................ 171
Letters, statements, etc., submitted for the record by:
Allen, Robert E., inspector general, National Labor Relations
Board, prepared statement of............................... 140
Associated Builders and Contractors, Inc., prepared statement
of......................................................... 10
Feinstein, Fred L., general counsel, National Labor Relations
Board, prepared statement of............................... 102
Gould, William B., IV, chairman, National Labor Relations
Board, prepared statement of............................... 17
Hiatt, Jonathan P., general counsel, AFL-CIO, prepared
statement of............................................... 229
Joseph, Jeffrey H., vice president for domestic policy, U.S.
Chamber of Commerce, prepared statement of................. 219
Joyner, Carlotta, Director of Education and Employment
Issues, U.S. General Accounting Office, prepared statement
of......................................................... 150
Shays, Hon. Christopher, a Representative in Congress from
the State of Connecticut, prepared statement of............ 3
Yager, Daniel V., vice president and general counsel, Labor
Policy Association:
Response to points raised in the hearing................. 254
Prepared statement of.................................... 175
OVERSIGHT OF THE NATIONAL LABOR RELATIONS BOARD
----------
THURSDAY, JULY 24, 1997
House of Representatives,
Subcommittee on Human Resources,
Committee on Government Reform and Oversight,
Washington, DC.
The subcommittee met, pursuant to notice, at 11 a.m., in
room 2247, Rayburn House Office Building, Hon. Christopher
Shays (chairman of the subcommittee) presiding.
Present: Representatives Shays, Snowbarger, Pappas, Towns,
Lantos, Barrett, Kucinich, Allen, and Sanders.
Staff present: Lawrence J. Halloran, staff director and
counsel; Doris F. Jacobs, associate counsel; R. Jared
Carpenter, clerk; and Cherri Branson, minority counsel.
Mr. Shays. I would like to call this hearing to order and
welcome our distinguished witnesses, the members of this
committee and our guests.
This is our first hearing on the National Labor Relations
Board, the NLRB.
When my good friend and colleague, Congressman Tom Lantos,
chaired the former Employment and Housing Subcommittee, we had
an oversight hearing almost every year on the NLRB. We
dutifully tried to monitor their performance, primarily as
measured by the Board's case backlog. Each year, the backlog
was examined, explained and denounced. Each year, commitments
were made to do better next year.
It was repetitive, but necessary, oversight because we had
no clear benchmarks or standards against which to measure the
Board's activities from year to year. As successive
administrations appointed Board members and general counsels,
and as economic and labor conditions changed, it became more
difficult to make meaningful comparisons or discern trends in
NLRB effectiveness and productivity.
Implementation of the Government Performance and Results
Act, what we refer to as the ``Results Act,'' promises to free
us and the NLRB, from the oversight treadmill. By requiring a
clear mission statement, a long-range strategic plan, outcome
goals and performance measures, the Results Act will allow
Board executives, Congress and the public to know how well
cases are being decided, not just how many.
The qualitative and quantitative measures required by the
Results Act could be important, even essential, tools for the
NLRB, which is often called upon by fiercely competing
constituencies to justify its actions and defend its
neutrality. In performing its important mission to enforce the
laws governing the peaceful, orderly resolution of labor-
management disputes, the NLRB should make measurable progress
toward objective goals to reassure those on both sides of the
bargaining table of the Board's effectiveness and fairness.
Policies of the current Board on the use of injunctive
relief, or the use of mail ballots, might be better understood
when expressed as components of a long-range plan, clear goals
and measurable objectives, just as the Results Act scrutiny
will require alteration of NLRB practices that do not meet
legitimate objectives or produce measurable results.
However, the NLRB's first step toward Results Act
compliance--the development of a 5-year strategic plan--has, so
far, fallen significantly short of the mark. While the Board
calls the plan a ``work in progress,'' that characterization
may confuse random movement with forward motion.
Performance measures in the first draft, while poorly
defined, disappeared altogether from the version provided to
the subcommittee on July 8. Two days ago some measurable
performance standards reappeared in a third draft, in response
to an analysis of the July 8 plan by the General Accounting
Office, GAO, requested by this subcommittee.
Based on these versions of the strategic plan, Results Act
compliance appears to be a paper exercise, far removed from the
fundamental operations of the NLRB. For example, an audit by
the NLRB inspector general, IG, last year found long-standing
performance measurement systems applicable to Results Act
implementation, yet those systems are only vaguely incorporated
into the plan.
More troubling, the GAO found the computerized NLRB case
tracking system under development, on which the Board will have
spent more than $10 million through next year, could be
incompatible with the Results Act requirements and need
expensive retrofitting. Nor does the plan include provisions to
get NLRB computers, new or old, across the year 2000 threshold.
According to the Board's latest strategic plan, its
mission, ``Is to encourage and promote stable and productive
labor management relations and thereby to promote commerce and
strengthen the Nation's economy.'' The subcommittee's mission
is oversight, to ensure the NLRB meets its statutory mission
effectively and efficiently. The Results Act requires we pursue
our missions together, through consultation or on development
of the strategic plan. That consultation begins today.
This subcommittee and this chairman welcome the testimony
of our witnesses today.
[The prepared statement of Hon. Christopher Shays follows:]
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[GRAPHIC] [TIFF OMITTED] T6442.002
Mr. Shays. Before calling on the ranking member, I want to
say that there is no hidden agenda here. The purpose of this
hearing is to learn how this department can operate better. It
is a goal that I am sure is shared by the administration and by
you, Mr. Gould, in particular.
I want to apologize to the members who may have statements.
I have a 15-minute meeting that I have to get to. Because of
votes, I am going to recognize Mr. Towns. I will miss the
statements made, but I am going to really hustle back, Mr.
Gould, to make sure that I am here for your testimony.
At this time, I would call on Mr. Towns, the ranking
member.
Mr. Towns. Thank you, Mr. Chairman. Let me also thank you
for holding this hearing. It seems to me that today's hearing
is really about two things: the Government Performance and
Results Act and the effective performance of the NLRB.
First, let's talk about the Government Performance and
Results Act. As the committee which initiated this legislation,
we should be concerned not only about compliance, but about the
meaning the law has been given by those who are charged with
its interpretation.
It should be remembered that GPRA was never intended to be
narrowly interpreted. We did not intend for GPRA to operate as
a noose around the neck of agencies. Our intention in enacting
GPRA was to create an ongoing dialog between Congress and the
agencies, which would facilitate increased communications about
agency performance and the use of appropriated funds.
The belief was that open communication would foster
increased discussion, consultation and positive interaction.
However, that does not seem to be what we have gotten. It is my
understanding that despite a September 30, 1997 deadline, most
of the agencies and departments have not submitted their GPRA.
One reason for this reluctance may be that of the 16 plans
that GAO has reviewed, only 1 plan has been deemed to meet all
the criteria. It would seem to me that this overwhelming amount
of failing grades has more to do with agencies being unsure of
the requirements than with the lack of agency resolve.
Years ago I had a teacher who said that if the majority of
the class fails, two things have happened. The teacher has
failed to teach and the students have failed to complain. I
think we may have a similar situation here. I say to the
chairman, I hope that in addition to examining whether the
requirements of GPRA have been met, we examine whether the
spirit of discussion, incorporation and vision by GPRA have
been met.
Our second topic today appears to be the economy and
efficiency of the NLRB. In 1990, the GAO found that the Board
headquarters were terribly slow in hearing and deciding
appeals. Some believe that this foot-dragging was politically
motivated. Today, far from foot-dragging, some are accusing the
NLRB of moving too fast, issuing injunctions and becoming
involved in too many disputes. Those who make these allegations
also charge political motivation.
Again, let me just bring some facts to light. In an effort
to eliminate the backlog of cases, Chairman Gould has appointed
an advisory panel of prolabor and promanagement lawyers to
recommend ways to improve the processing of cases and improve
the agency's service to the public, and I applaud him for that.
Additionally, the chairman has instituted speed teams that
reduce the time and paperwork involved in hearing a case. These
procedures have enabled the Board to reduce its backlog. As the
Committee on Government Reform and Oversight, we should also
say thank you.
Finally, there is some concern about whether the Board is a
partisan body. During the Reagan administration and during the
Bush years, many accused the Board of being promanagement and
decidedly antiunion. Therefore, these concerns are not new. It
seems to me that if the Board's decisions were out of touch
with the established law, the courts would serve as an
effective check on the Board's authority. It is my
understanding that the courts have upheld the Board's decisions
in over 90 percent of all of the cases. Therefore, it seems to
me that although these decisions may not be popular with some,
they are in accord with the law.
Again, let me say to the chairman, I want to thank you for
holding today's hearing, and I look forward to hearing the
testimony of all of the witnesses.
At this time I yield back.
Mr. Snowbarger [presiding]. I think I am going to take the
prerogative of going out of order and just have Mr. Allen, if
you want to make a statement.
Mr. Allen. I have no statement at this time.
Mr. Snowbarger. OK. Mr. Barrett.
Mr. Barrett. I have no formal statement.
I just simply want to say, as we talk about the NLRB, that
the major experience that I have had has been the involvement--
the active involvement in a situation in my district where
Pabst Brewery pulled out after 140 years in Milwaukee; and
there were charges made by the union, and the National Labor
Relations Board has been very active, and I want to thank you
for that. I think you have responded very well and have given a
glimmer of hope to what has been otherwise a very sad situation
in my district.
Mr. Gould. Thank you, Congressman.
Mr. Snowbarger. Mr. Lantos.
Mr. Lantos. I have no formal opening statement, Mr.
Chairman, but I would like to say a couple of things.
Chris Shays was correct in saying that when I chaired this
subcommittee, during the happier days of this body, we did have
annual hearings concerning the work of the NLRB, and I am
pleased that Chairman Shays called this hearing.
I have a number of specific questions I will put to
Chairman Gould, but let me say at the opening that I have been
enormously impressed by the Gould chairmanship of the NLRB.
You have been operating, Mr. Chairman, under enormously
difficult circumstances, not of your own making, and I want to
publicly tip my hat to you for having maintained the dignity
and the decorum and the effectiveness of this body under the
most extremely difficult circumstances. I hope we will be able
to remove those circumstances so that an NLRB at full
complement, fully confirmed, can finally do its job properly.
I think you have been subjected to unfair criticism from
many quarters. I have very carefully looked at and analyzed
those bits of criticism and I have found them to be wanting. I
think you are performing in a remarkable fashion in an almost
untenable situation with only three members of a five-member
Board, with two of the three members not having been confirmed.
As a matter of fact, may I ask, are you in fact the only
confirmed member of this Board?
Mr. Gould. I am, Congressman.
Mr. Lantos. Well, I think that it is an appalling state of
affairs that a body of such importance which should have a full
complement of five members, all five fully and duly confirmed,
so they can do their job without fear and intimidation, should
be overlooking the whole labor management picture in the United
States. It would be analogous to having eight Supreme Court
justices on temporary appointment, waiting to be confirmed, and
I would like to see how the Supreme Court's decisions would be
unfolding under those circumstances.
So let me commend you and congratulate you, Mr. Chairman,
and I look forward to asking some specific questions of you.
Mr. Gould. Thank you, Congressman Lantos.
Mr. Snowbarger. I would remind Mr. Lantos that happier days
kind of depend on your perspective, I think, but Mr. Sanders.
Mr. Sanders. Thank you, Mr. Chairman. I am going to have to
be leaving in a moment because I have an amendment on the
floor, but I want to just concur in the statement that Mr.
Lantos has made.
It is no secret that the work that Chairman Gould is
involved in is highly contentious. There are some of us who
believe that workers in this country have an absolute right to
come together in union to fight for their rights, and some of
us believe that one of the reasons that the standard of living
of American workers has gone down precipitously over the last
25 years is the weakening of the trade union movement.
It is no secret that there are other people within the
Congress who do not hold these views. It is also no secret that
there are people who are working very hard and are spending
huge amounts of money trying to destroy the trade union
movement, making it harder and harder for workers to come
together in unions.
One of the real problems that I have--and I have introduced
legislation to try to address this problem--is that right now
the truth of the matter is that it is in fact very difficult
for workers to come together to form a union; that an employer
with strong consultants, with good legal staff, can stall and
stall and stall; and if workers do all of the right things, if
workers play by the rules, some of their most active proponents
of unionism will be fired, the process will be delayed, and
there will be no retribution on the part of the employer.
I find it, as Mr. Lantos just indicated, extremely
unfortunate and extremely unfair that both Mr. Gould and Mr.
Gould's department is understaffed, is not given the
opportunity to do the work that they are supposed to do, which
is to protect the interests of American workers in a fair way.
I just want to applaud Mr. Gould for the work that he has
been doing, and I hope that this Congress can give him the
staff and the associates so that he can do his job adequately.
Thank you, Mr. Chairman.
Mr. Snowbarger. Mr. Kucinich.
Mr. Kucinich. Thank you, Mr. Chairman. I would like to
welcome the NLRB Chairman, William Gould, to his first
appearance before the Human Resources Subcommittee.
During my 6 months in Congress, I can say that this
subcommittee has developed an excellent record of adopting a
reasonable and bipartisan approach to its review of agency
operations. When it comes to questions of labor management
relations, however, it may be a challenge to maintain this
constructive spirit.
Since its formation in the 1930's, the NLRB has played an
important role in our society. It is the main government
organization that ensures that employees can freely decide
whether or not to band together into labor organizations. It is
critical, absolutely critical, to the stability of our society
that the NLRB have the capacity to carry out that mission.
The Government Performance and Results Act provides an
opportunity to determine whether the NLRB does have enough
resources to carry out its mission for the good of our country.
I would like to echo Mr. Sanders' remarks. Working people have
rights in this country. The nature of a democratic society is
that we defend workers' rights. We do that legislatively, we do
that in speeches, we do that in meetings, and we do that
through having a national labor relation board to make sure
that workers' rights have not been stripped covertly through
tactics which undermine people's right to organize, the right
to be able to strike, the right to file grievances, the right
to be able to stand up and protect the interests of their
fellow workers.
The National Labor Relations Board has a long and proud
history of representing American workers, and I have to say
that Mr. Gould, among all the NLRB chairs that I have been
familiar with or have read about, stands out as someone who has
fearlessly defended workers' rights. I want to welcome you to
this committee and let you know that in this committee there
are members who are going to defend your ability to stand up
for American workers and to use the agency of government and
put it on the side of American workers and their hopes and
dreams, and I thank you.
Mr. Towns. Will the gentleman yield?
Mr. Kucinich. I will yield.
Mr. Towns. The gentleman is still a Democrat, isn't he?
Mr. Snowbarger. He is real uncomfortable over here.
Mr. Kucinich. Imagine if I had crossed over and made that
statement as a Republican, we would all be singing from the
same hymn book. I am here as an American first, as a supporter
of labor, as a Democrat, but also as a friend to the
Republicans to work with you to make sure that working people
have the opportunity to be well represented in NLRB.
Mr. Snowbarger. Has the gentleman's time expired yet?
Just a few brief comments before we get to the witnesses.
We want to thank you for your appearance here today, and as the
chairman indicated, he will be back shortly.
As has been indicated, though, there are two sides to some
of these issues. I come from the State of Kansas which is a
right-to-work State, and about a year ago--I believe a year ago
in April--there were field hearings held in my district by my
predecessor and other Members of Congress on the issue of
salting.
The thing that concerned me, again in a right-to-work State
where we have both union members and shops that are open and do
not have union members, was the practice of unions sending
organizers into those businesses where there were not labor
organizations and were not union representatives, and there was
no interest in union representatives. The workers in those
companies were pleased with management and were communicating
very well with management, and very frankly, the NLRB made the
right decision in most of those cases. The problem was, they
made the right decision in those cases after the employers were
forced to spend hundreds of thousands of dollars on legal fees
in trying to protect their interests and protect even their
employees.
So I will be having some questions later on about the
practice of salting and about NLRB's approach to that.
I take a different approach to this than Mr. Kucinich. I
think that the NLRB should be taking a neutral approach to
these subjects, not to be an advocate; and unfortunately, I
think that they have in later years become an advocate for
labor unions as opposed to taking a neutral stance in just
protecting the rights of both workers and management.
With that, let me make a couple of business actions here.
First of all, I would ask unanimous consent to enter into the
record a statement from the Associated Builders and Contractors
that has been presented to me and again indicates problems with
the practice of salting.
Seeing no objection, then I would ask unanimous consent
that all members of the subcommittee be permitted to place any
opening statement into the record and that the record remain
open for 3 days for that purpose. Without objection, so
ordered.
[The prepared statement of the Associated Builders and
Contractors, Inc., follows:]
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[GRAPHIC] [TIFF OMITTED] T6442.005
[GRAPHIC] [TIFF OMITTED] T6442.006
Mr. Snowbarger. I ask further unanimous consent that all
witnesses be permitted to include their written statements in
the record.
Without objection, so ordered.
It is the practice of this committee, as with most
congressional committees, to swear in our witnesses. So I would
like to ask them to stand, if they would, please.
If you have people that will be testifying with you, I
would ask them to stand as well.
[Witnesses sworn.]
Mr. Snowbarger. I note for the record that the witnesses
did respond in the affirmative. Thank you, gentlemen.
I will call on the chairman of the National Labor Relations
Board, Mr. Gould.
STATEMENTS OF WILLIAM B. GOULD, IV, CHAIRMAN, AND FRED L.
FEINSTEIN, GENERAL COUNSEL, NATIONAL LABOR RELATIONS BOARD,
ACCOMPANIED BY ALFRED L. WOLFF, CHIEF COUNSEL; ROBERT A.
GIANNASI, CHIEF ADMINISTRATIVE LAW JUDGE; AND HARDING DARDEN,
BUDGET OFFICER
Mr. Gould. Thank you, Congressman. It is a pleasure to be
able to come here and speak to you about our agency, our act,
and the progress that we have made under it, and to focus on
GPRA as well.
With me, to my left, is Fred Feinstein, the general counsel
of the agency; and to my right, Al Wolff, my chief counsel.
Also with us is Robert Giannasi, the chief administrative law
judge; and Harding Darden, our budget analyst. I have asked
them to stand and be sworn in, because from time to time we may
want to consult with them.
I want to say that I have, during these past 3\1/2\ years
as chairman of the agency, viewed it as an honor and privilege
to serve the U.S. Government and to accept President Clinton's
invitation to serve. I regard myself as part of this
administration, but I want to note for the record, as I have on
other occasions, that never has there been any communication
between the White House and myself about any issue that will
come before our agency, whether it involves adjudication or
rulemaking.
This is a great agency, the National Labor Relations Board.
It consists of competent and professional people throughout the
United States, who are deeply committed to the rule of law; and
although I believe that here in Washington in the 1980's and
the early 1990's, the agency lost its way in terms of meeting
the goals that are set forth in the statute, it remains a very
important and great agency.
In late 1995, our Board brought the backlog--which, as you
know, reached 1,600 cases in the 1980's--to a historic low, the
lowest it has ever been since 1974; and I think that this is
one of the indicia of the success that we have been able to
obtain over these 3\1/2\ years. Although affirmance by the
courts of appeals of our orders is not necessarily dispositive
of our success, we have achieved a record, I think, that we can
be proud of, that compares favorably with our predecessors in
obtaining affirmance of our decisions.
I might say that these statistics which I have set forth
are deflated by the fact that they don't include our
settlements, which almost invariably provide for relief and,
therefore, enforcement, at a minimum, in part; and they don't
include consent decrees and summary judgments which also are a
measure of our success in the circuit courts of appeals.
As I have indicated in my statement, fiscal year 1996
really represents the first year in which the Board appointed
by President Clinton has had its success before the courts
measured, and we have done, I think, appreciably better than
the boards before us.
When I came to Washington, I had as my objective three
important considerations, three important objectives. No. 1, I
set out to attempt to expedite our administrative process for
unions and employers, involving unfair labor practice charges
filed by both sides, as well as representation petitions. No.
2, I attempted to induce through a number of mechanisms--the
advisory panel that has been referred to by Congressman Towns--
an environment in which we could bring labor and management
together and foster a greater measure of cooperation and
substitute dialog and discussion for strife. I think that we
have done that as well.
Finally, I wanted to achieve a better balance in
administrating our statute than has been done in previous
years, and I think that this Board has acted as an impartial
arbiter between the competing claims of labor and management.
Let me just refer to a few of the specifics, some of which I
have outlined in my statement.
Section 10(j) of the statute: We have used 10(j), I think,
with good results on 258 occasions since March 1994, and we
have had a success rate on the order of 90 percent. I think
that we have taken seriously the requirements of GPRA and tried
to become a more effective agency. This agency historically has
been concerned with the kinds of concerns that GPRA is focused
upon.
Since 1959, since the time of General Counsel Rothman,
there have been timetables in the regions for the disposition
of cases. We have moved effectively with our new computer
system, our CATS system, the initiative that was undertaken in
1994. We have pursued a number of strategies, superpanels,
settlement judges, bench decisions, speed teams, time targets
for our administrative law judges, all of which, I think, have
made this agency more effective and able to accomplish its
mission more effectively.
Now, it may be, Mr. Chairman, that we have not articulated
all of this as well as we should have in our mission statement.
We are really learning as we go about the requirements of GPRA.
This statement, I am sure, is in need of revision; and we
welcome your input, Mr. Chairman, and the input of all of the
members of this committee as to how we can make our mission
statement more compatible with the purposes of the statute. We
recognize that the purpose of the statute is to involve us in a
process where we speak with the Congress, where we consult with
the Congress, and where we get the input of the Congress.
We have served our mission statement upon not only your
committee, but all of the other relevant committees, and we
stand ready to get your advice about how we can do better in
this regard.
And I am pleased, Mr. Chairman, that you have invited us here
to be with you and to testify about these matters, and I stand
ready to answer any questions or comments--respond to comments
that you and your colleagues may have.
Thank you very much for your time.
[The prepared statement of Mr. Gould follows:]
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Mr. Shays [presiding]. Thank you, Mr. Gould. We are going
to be asking questions as soon as we hear from Mr. Feinstein.
My sense is that directing the Board, that you basically
get your cases, once they have gone through your operation, Mr.
Feinstein, and that most of the employees would be found in
your operation as opposed to the Board; is that correct?
Mr. Feinstein. That is correct.
Mr. Shays. OK. Why don't you give us your testimony and
then we will ask you both questions.
Mr. Feinstein. Thank you, Mr. Chairman, for this
opportunity to appear before the subcommittee to further
elaborate a little on the question you just asked.
The NLRB's statutory functions are vested separately in a
five-member Board and the general counsel. The general counsel
has independent supervisory authority over the agency's
regional offices which, together with the general counsel's
headquarters division, comprise nearly 90 percent of the
agency's staff.
Numerous commentators have recognized this unique
gatekeeping function of the NLRB general counsel. Acting
primarily through the regional directors and their regional
staffs, the Office of General Counsel screens and thereby
resolves thousands of nonmeritorious allegations each year.
This year, as in the past, more than 60 percent of the
unfair labor practice charges have been dismissed or withdrawn
for lack of merit, putting those disputes to rest for good in a
relatively short period of time. Our time targets vary from
about 45 days to 10 weeks in resolving those cases.
We have also achieved a settlement rate of over 96 percent
in the remaining cases, and thereby have saved countless
expense, both public and private dollars, in litigation costs.
Last year, indeed, more than 90 percent of the charges filed
with the agency were processed from beginning to end entirely
in the field without any involvement by Washington.
This is indeed a record of efficiency that is now being
tested as never before. Reductions in the agency's staffing
have presented enormous challenges, notwithstanding the fact,
as the chairman has indicated, that----
Mr. Shays. Excuse me. We are going to let you continue. We
have a vote, and we will just go to it in a little bit, but why
don't you finish?
Mr. Feinstein. As I say, the staffing reductions have
presented enormous challenges, and notwithstanding the fact
that we have been taking numerous steps to stay on top of
rising backlogs.
Now, when I speak of backlogs, I am speaking of field
backlogs, investigation and trial backlogs, the backlogs that
measure the time a case takes before it receives attention by
the Board in Washington. Only about 5 percent of our cases ever
make it to Board consideration, and when I am referring to
backlogs, I am referring to that part of our process.
Our present staffing level of about 1,950 is the NLRB's
lowest since 1962, notwithstanding the fact that our caseload
in 1962 was--that our caseload now is more than 60 percent
greater than it was at that time, when we had a comparable
staffing level. Of course, the NLRB is required, the general
counsel's office is required to process all cases filed with
the agency.
In addition to this growing number of cases per staff, the
nature of the cases themselves has been growing in complexity,
further adding to our workload burden. Because of all of this,
I spend most of my time working with the excellent agency
management and others within the agency to try to figure out
how best to stretch our increasingly limited resources.
We very much understand the importance of GPRA and the
development of our strategic plan in meeting this challenge.
Indeed, a number of the innovations that we have implemented
over the past few years, I believe, have been very much
informed by and consistent with the principles of GPRA, and I
want to just briefly mention some of those initiatives that we
have undertaken.
We have eliminated significant layers of review within our
process. We have cut back on space. That has included the
closing of two offices and the cutback of more than 40 percent
of the space in an additional seven offices. All 24 field
locations have undergone significant space reductions, and our
total field office space has been reduced by nearly 10 percent
with further reductions slated in the future.
We have cut back on travel significantly. These efforts
have included increasing use of telephone affidavits, the
development of questionnaires, and other kinds of alternative
investigative techniques that have allowed us to significantly
cut back on our travel costs. We have turned back to the
government nearly 70 government-furnished vehicles, and their
parking spaces have been eliminated in the last few years. The
regional travel expenses during fiscal year 1996 were 44
percent lower than the previous year.
We have developed a program of resident agents, which makes
us more efficient and more able to get to the cases quickly. We
have also been in the process of developing an extensive
computerization program which has entailed, in addition to the
development of software systems and hardware systems, the
restructuring of our office support staff personnel, training,
and other significant efforts to bring about the transition to
an automated case-tracking system throughout the agency.
I might comment, Mr. Chairman on your opening statement
where you spoke about these efforts. One of the fundamental
principles of design of these systems is that they be flexible
and open-ended precisely so that they can be made to be
compatible with the developing strategies and objectives and
goals required by GPRA. I recognize that we have not done an
adequate job of describing that in our plan and to the GAO in
assessing it. We have begun that process to better describe and
communicate how that plan, we believe, is very much consistent
with the dictates of GPRA.
In addition to these economizing efforts, we have also
attempted to focus on operational reforms that would best allow
us to carry out the agency's responsibilities in enforcing the
act. We have developed a case management system called Impact
Analysis, which seeks to understand the priority of each case
when it is filed with the agency, and in accordance with those
developing priorities, better understand the resources
necessary to devote to the processing of that case; and we have
modified our time targets in the processing of those cases
accordingly.
There has been a renewed emphasis on all aspects of our
case processing, including the processing of elections. We have
attempted to implement greater consistency and uniformity so
that all parties--employers, employees, unions--understand that
when a petition for an election is filed with the agency, the
agency will carry out its most important function of conducting
that election in a manner that is consistent and uniform.
Mr. Shays. Mr. Feinstein, let me just say, we have a vote
in about 8 minutes. Do you think you can finish your comments
in about 3?
Mr. Feinstein. I certainly can.
Mr. Shays. And then what we will do is recess--it will
probably be about 15 minutes--and then we will come right back.
We have to go vote.
Mr. Feinstein. Again, I will skip through these quickly,
and I will be happy to discuss them further in the question
period.
Other operational reforms have included the reinvention of
our appeals office here in Washington, eliminating layers of
review and prioritizing cases so that we have significantly cut
down on the case processing time.
Each of these three initiatives that I have just mentioned
have received a Hammer Award from in the Vice President's
National Performance Review earlier this year.
Despite these continuing efforts to improve efficiency and
effectiveness, because of the continued reduction in our
staffing levels, backlogs at several stages of our case-
handling pipeline have continued to grow. In April 1997, there
were approximately 7,600 unfair labor practice cases pending
investigation, nearly double the number of just 3 years ago,
which of course is of enormous concern to us.
Our efforts over the past several years have relied very
much on the principles and concepts of GPRA. In accordance with
the act, we are now working on the formal development and
refinement of our strategic plan, and in so doing, you
certainly continue to be helpful in giving us further insight
in how to approach the difficult operational issues facing the
agency.
Just in the past week we have been discussing our plan with
the GAO, who have offered important guidance that has already,
as you have indicated, led to modifications in the plan; and we
certainly continue to seek the input of the GAO in developing
and refining the plan. But more importantly, of course, we
recognize and welcome the consultation with Congress in the
development of this plan as the chairman has indicated. We
recognize that we still have a way to go in this process, and
we look forward to the consultations with the Congress and
others in tackling these significant operational issues that
face the agency.
I thank you for the opportunity to be here today, Mr.
Chairman.
[The prepared statement of Mr. Feinstein follows:]
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Mr. Shays. Thank you, Mr. Feinstein. What we will do, Mr.
Gould and Mr. Feinstein, is vote and come back, so we will
recess for about 15 minutes.
[Recess.]
Mr. Shays. I will call the hearing back to order.
I am going to just have both of you describe to me where
you interact and where your roles are clearly different. I
mean, it is kind of interesting to me that you have one Results
Act for the two of you, yet you are a separate Board.
You are, in a sense, almost in a prosecutorial role. You
funnel things through--funnel is a bad word. You basically--it
flows through your agency to the Board, some things get there
and some things don't. But describe to me where you would sit
down and talk together as partners and where you would
basically shut the door and not have dialog.
Mr. Gould. Well, the area, Mr. Chairman, where we would
shut the door and not have dialog and where the general counsel
is in an adversarial position vis-a-vis respondents. He is
independent of the Board insofar as his prosecutorial function
is concerned. That is to say, he has the responsibility to
investigate charges which are filed with our regions and to
determine whether a complaint should issue, and then he is a
party litigant in that posture before us.
Once we issue an order, then his role changes. Then he
becomes, and I recognize that there are some people who are
puzzled about this, but this is the statutory scheme which you
in Congress have created for us, he becomes our lawyer, and we
consult with him, provide him with instructions on a wide
variety of matters that we may want him to pursue, and he
represents us in the circuit courts of appeals and in matters
involving issues that might go to the U.S. Supreme Court.
He also represents us if we vote to authorize injunctive
relief in a so-called section 10(j) proceeding.
So he is independent of us for the purpose of a
prosecutorial function and acts as our lawyer, and we, of
course, are the judicial component of the Board. It is our
responsibility to interpret the statute and to provide guidance
as the expert agency.
On matters involving GPRA, we would, of course, discuss
these issues together. We met yesterday to talk about this
hearing. There is no bar between us insofar as our
responsibilities under the statute are concerned.
Mr. Shays. I am going to have you jump right in, but just a
real quick answer. Would it be improper for you to discuss a
case with Mr. Feinstein that was pending before you?
Mr. Gould. It would be improper for me to discuss a case.
Mr. Shays. Or any of your staff?
Mr. Gould. Or any of my staff, or any part of the Board, to
discuss a case that is pending before us where he is the party
litigant in a matter before us; and I do not and would not
discuss such a matter with him.
Mr. Shays. I am tempted to ask who is first among equals
here, because you responded first, but maybe I should already
know the answer.
Mr. Feinstein. Well, to further elaborate on the chairman's
answer, he has described my role as prosecutor and where the
divisions lie, that there is a wall. It really is a two-sided,
two-headed agency. That is how it has always been described in
the past. The general counsel side of the agency and the Board
side of the agency, and the chairman has described, in terms of
case processing, how that division works.
I am one of the parties to every case, virtually every
proceeding, that is before the Board, and for that reason, any
communications with the Board about the case has to be in the
formal proceeding. Any other kind of communication would be an
ex parte communication. So there is a very pronounced, defined
wall between the two sides of the agency for that reason.
In terms of administering the agency, managing the agency,
that division is likewise carried through. I have the
supervisory, managerial, administrative task of directing the
general counsel side of the agency, and that is indeed, as I
suggested in my testimony, what I spend a good part of my time
doing, is managing the agency, the regional offices, their
operations, and the headquarters staff of the general counsel.
So there is that clear separation between the general
counsel's office and the Offices of the Board.
The areas, as the chairman has indicated, where we are able
to discuss and work together are the general issues that affect
the whole agency. One of those, for example, would be the
budget, where I consult with the chairman and the Board members
about budgetary issues, because we have to obviously--we are
given--we are not funded separately. The agency is funded as a
whole, and once we get the funding, then it is allocated
between the different sides of the agency.
So there are issues that are not case issues, more of an
administrative nature, where we are able to discuss and
exchange thoughts about what is transpiring; and one of those
issues is in the development of a strategic plan. The general
counsel's office's efforts are focused on the general counsel
side of the agency, which again, as I suggested, covers about
90 percent of the staff of the agency; and the chairman's
efforts and the initiatives that he describes have to do with
efforts and initiatives that pertain to the Board side of the
agency. But there are certainly issues which overlap, and we
certainly do try to work together on those issues.
Mr. Shays. I think this is obviously an interesting
relationship.
Mr. Feinstein. It is very interesting, Mr. Chairman.
Mr. Gould. I will echo that.
Mr. Shays. Who decides where you have disputes, who would
referee an honest disagreement among two Presidential nominees
confirmed by the Senate? I mean, you both go to the Senate,
correct?
Mr. Gould. That is correct.
Mr. Feinstein. Correct.
Mr. Shays. So you didn't hire Mr. Feinstein, he was
selected by the President.
Mr. Gould. Correct.
Mr. Shays. Who decides disputes between the two of you?
Where do you logically----
Mr. Feinstein. Well, largely, Mr. Chairman, we try to work
them out. If there are issues where there is disagreement, then
the Board could take a vote on it. Of course there are other--
--
Mr. Shays. Let me ask you this, though. So then the Board
which you serve with, in a sense, oversees the operation?
Mr. Gould. Well, the Board delegates this managerial
responsibility to the general counsel, it is referred to the
general counsel, and by virtue of its delegation, the general
counsel administers the regional offices. Now, the Board has
responsibility for the Board. There is no outside party that
would referee a dispute between us.
Mr. Shays. Maybe I am on sensitive ground, because maybe
this happens more by agreement than----
Mr. Gould. It does.
Mr. Shays. But by law, is the counsel's office a creature
of the Board?
Mr. Gould. It is not a creature of the Board. Since the
Taft-Hartley amendments to the law, the general counsel became
an independent party for the purpose of his or her
prosecutorial functions; and as I say, the peculiar thing--and
this is the statutory scheme which Congress has created--is
that once we issue an order subsequent to litigation before us,
the general counsel on one side, the respondent on the other
side, then the general counsel becomes our lawyer for the
purpose of obtaining enforcement.
Mr. Shays. I understand that part.
You wanted to say something.
Mr. Feinstein. Right. Just to say again, to further
elaborate on what the chairman has said, the basic part of the
responsibility of the general counsel is statutorily
established under section 3(d) of the act which establishes
this authority. There are additional responsibilities that the
general counsel's office has exercised for 50 years that come
through delegation from the Board.
The chairman was referring to acting as the counsel, the
lawyer for the Board after the Board has made a decision, for
example, and there are some others. But the basic part of the
general counsel's responsibility is statutorily based.
Mr. Shays. I am going to have specific questions about
10(j) and I am going to have questions about how the flow comes
to the Board, so I will get into some more detailed issues.
At this time I would like to recognize Mr. Towns, the
ranking member.
Mr. Towns. Thank you, Mr. Chairman.
Let me begin with you, Mr. Feinstein. In your testimony you
discuss the current backlogs at the regional level. Can you
tell us how these backlogs adversely affect the employers and
employees and threaten a healthy, growing economy?
Mr. Feinstein. I think they adversely affect all concerned.
They certainly adversely affect the parties to the dispute.
What we have found is, the quicker that we are able to get
to a case to resolve the issues, to conduct an investigation,
amongst other things, the better able we are to settle that
dispute. The longer we have a dispute before us, the harder it
is to settle it. The parties get more locked in, the
differences perhaps get magnified, the liability might increase
if we are talking about back pay as part of the remedy, so that
one of the definite advantages of our ability to get to our
cases quickly is our ability to settle them.
I think perhaps, more fundamentally, a workplace dispute
that festers, a workplace dispute that lingers, is more
destructive to that workplace for both employee and employer
alike. The quicker that that dispute is resolved, the quicker
we are able to come to a determination, and the quicker it goes
away, the quicker that a productive relationship between those
involved in that dispute is able to be resumed. So I think
fundamentally the benefit of our ability to process cases
quickly is that we resolve those cases quickly and the
workplace itself is more productive.
Mr. Towns. Let me ask both of you this, and I am not trying
to put you on the spot, but I think that a hearing, we always
want to try to learn as much as we can, and in some instances I
think that we can--in terms of the Congress, can be helpful.
Can you tell us what the Congress can do or what we have
done to contribute to your backlog at the regional level, and
what we can do maybe to help alleviate this?
Mr. Gould. Well, the principal--of course, the principal
problem we are confronted with is our budget, and because of
the slight increase that we received in the last budget, we
were able to hire a number of people in the regional offices.
We need people to process the cases. We need new people, that
are really the lifeblood of the agency; and the inability to
obtain an adequate budget is a major factor in the backlog
problem.
Mr. Feinstein. If I could further elaborate, as the
chairman has said, our agency is people. Eighty percent of the
agency budget goes to salaries and benefits, another 10 percent
goes to rent, and that leaves 10 percent over. So what our
budget is about is basically paying the salaries of the staff.
As I suggested in my statement, the staff of the agency now
is at about the level it was in 1962 when we had a little more
than half--we had a little more than half the number of cases
we have now. The number of cases per staff member in just the
last 8 or 9 years has increased about 30 percent.
While what we have is a situation where each person is
handling more and more cases, I have to emphasize again that it
is not just a question of numbers here. As GPRA keeps telling
us, we have to look at quality issues and at what is actually
going on in those cases; and there are numerous indications
that the cases that we handle are also more complex, difficult
cases for a number of reasons. We have instituted screening
mechanisms, changes in the economy itself have contributed. So
we have fewer people doing more cases that are more difficult.
That, I think, put very simply, is the reason that we have
seen the backlogs increasing. Everything that we know about how
the agency functions, while there are lots of efficiencies
which we can and should and have been considering, the basic
element in reducing our backlog has to do with our staffing
level.
Mr. Towns. Thank you very much.
Let me just ask one more question, Mr. Chairman.
This happened I guess really before you got there, Mr.
Gould. In 1990, GAO issued a report which found that the NLRB
headquarters was slow in processing cases. Can you tell me what
steps the Board has taken to address the 1990 concerns of GAO
and how these concerns affect the day-to-day work of deciding
cases?
Mr. Gould. Well, we have taken a number of steps,
Congressman. One of them, the first one at the Board level and
in Washington was to institute a speed team procedure whereby
the staff of Board members are advised to try to identify cases
that are factual or involve credibility issues and either a
hearing officer or an administrative law judge has already made
the determination on that, and to put those cases on the fast
track. We have been successful in using the speed team
mechanism in connection with 30 percent of our cases, to get
them out in less than a couple of months.
Second, we have instituted a so-called ``superpanel
system'' where we have met the Board members every Tuesday and
dealt with representation cases. Sometimes we are able to get
those out in a matter of a week or so of the time that they
come into Washington.
Third, we have made certain reforms as they relate to
administrative law judges. We have authorized our
administrative law judges to issue so-called ``bench
decisions'' where the issue is factual, it is a one-issue case,
or where the law is very clear. They don't need to get briefs
which take up 4 months of the time of the administrative
process.
We have also established time targets for our
administrative law judges. We are in the process of creating
time targets for the handling of representation cases after a
union has been certified in a controversy, or has not been
certified and a controversy arises out of the conduct of our
election.
Mr. Towns. I am really impressed with the things that you
have been able to do.
Let me ask this, Mr. Chairman. This is really my last
question.
It is my understanding that there is some concern about
using mail ballots in union elections. I just find that to be a
little strange. I think I recall, I think it is the State of
Oregon conducted a congressional election, Senate, a senatorial
election as well, by mail in 1994-1995. I have not heard any
allegations of any kind of widespread fraud in those elections.
Can you tell me how mail ballots would be helpful and what
antifraud assurances are available, if you use mail ballots?
Mr. Gould. Yes, Congressman. We have of course as an agency
used mail ballots from the beginning of the agency in the
1930's, and the National Mediation Board, functioning under the
Railway Act, conducts all its ballots by mail and has done so
for a decade.
When I first came to the agency, one of the first cases
that I was confronted with involved an election where some of
the employees were on strike. The regional director wanted to
have an election in the plant. Well, there was no way that the
strikers could participate in the ballot. Some of them were
working out of State. So we ordered, and it had not been done
so previously, a mail ballot in that situation.
Second, where employees' work schedules are irregular,
where they are part-timers and they are coming in under a
number of different schedules, sometimes in a number of
different facilities, we have conducted mail ballots then.
Third, of course, where the strain upon our resources is
considerable, where vast distances exist between the Board
offices and the plant premises, that has been a factor in my
judgment in which it is appropriate to conduct a mail ballot.
Now, we issued on June 20 of this year two lead decisions
on this matter, and one of them was the London's Farm Dairy
case, 323, NLRB No. 186, which was decided by us on June 20. We
noted that under our mail ballot procedures, instructions to
employees specifically state that they are to be marked in
secret. They emphasize that it is important to maintain that
secrecy and direct the employee not to show the ballot to
anyone after it is marked. The ballots are typically mailed to
an employee's home address, and in that setting, the employee
has, as we said in London Dairy, ample opportunity to cast
their ballots in accord with instructions and in complete
privacy.
During our entire 62-year history, there has been only one
situation which was brought to us involving the invasion of
privacy--in that case, a decision in 1994 where we found that
the employer had invaded the employee's privacy. The National
Mediation Board has had only, I think, three or four cases in
the entire 71-year history that it has had conducting mail
ballots. Actually, their statute has been in existence for 71
years; they have only been doing this since 1934.
So I think that our procedures which we have put in place
protect the employee's right to privacy, and what we have done
through the mail ballot is provide an opportunity to
enfranchise workers who would otherwise be disenfranchised
because of their inability to participate in the process at a
particular facility.
I am very proud of what we have been able to do in this
regard, Congressman Towns, and I hope that we continue to use
mail ballots in the circumstances that I have alluded to.
Mr. Towns. Thank you very much. I thank both of you for
your testimony. I want you to know that I am impressed with the
things that you are doing. Thank you very, very much.
Mr. Shays. Thank you, Mr. Towns.
Mr. Snowbarger.
Mr. Snowbarger. Thank you, Mr. Chairman. I have several
different lines of questioning, so maybe I will take several
rounds here or something.
First of all, I just want to try to get a handle, we have
talked about the number of employees that the NLRB has, and I
am trying to get a handle on how workload is distributed here.
How many employees are there here in Washington?
Mr. Gould. In Washington, there are about 600----
Mr. Feinstein. It is between 600 and 700, the general
counsel side of the agency and the Board side of the agency.
Someone is checking to see if we have an exact figure.
Mr. Snowbarger. OK.
Mr. Feinstein. 700 roughly in that area.
Mr. Snowbarger. In your testimony you indicated that there
are 1,950 full-time. Was that just on general counsel side, or
is that the whole agency?
Mr. Gould. The whole agency throughout the entire United
States.
Mr. Snowbarger. So of that 1,950, roughly 700 or maybe a
little less than that are here in Washington?
Mr. Gould. Yes.
Mr. Feinstein. Right. And there are about 1,400 in the
field.
Mr. Snowbarger. OK. I guess my concern is that in your
testimony you indicated that of the 39,000 charges of unfair
labor practices last year, 90 percent of the cases were
resolved in the field with no Washington involvement
whatsoever, and yet you have more than a third of your work
force located here in Washington. Yet I hear you complaining
that you don't have enough folks out in the field.
I am missing something here.
Mr. Feinstein. Well, if I can, those 90 percent of our
cases that are settled are the cases in which we have
investigated or dismissed the case, of which 60 to 65 percent
of the cases fall into that category. There are others where a
determination is made to proceed, that the case has merit, and
the case is settled in the field, either prior to the
institution--prior even to the issuance of a complaint or after
the issuance of a complaint and prior to an administrative
hearing, or even during process of the administrative hearing.
Mr. Snowbarger. So now we are up to what, 96 percent of all
cases?
Mr. Feinstein. No.
Mr. Snowbarger. Well, 60 percent plus 96 percent of 20
percent, it gets you awful close to the mid-90's, I would
think. I haven't done the math on it.
Mr. Feinstein. The point I was about to make is that some
of those cases that settle, there is Washington involvement. We
have a Division of Advice in Washington, for example, which is
the arm of the general counsel's office that is used to
consider the most difficult cases, the most complex cases, the
cases in which the region is not quite sure where the law
stands. So those cases might get sent in and then sent back to
the region for a determination.
Mr. Snowbarger. How many of the 700 employees would be
advisors in that capacity?
Mr. Feinstein. Working in our Advice Division? I think it
is between 30 and 40, close to 40, counting support staff.
Mr. Snowbarger. And in how many regions? I apologize for my
ignorance here, but how many regions does the NLRB break down
into?
Mr. Feinstein. We have 33 regional offices and an
additional 19 subregional offices.
Mr. Snowbarger. And 40 advisors. It is like you could have
an advisor per office out in the field and perhaps the days
they weren't giving advice, they could be pursuing other
things.
Mr. Feinstein. Again, these are the people that are perhaps
most expert in the complexities of the law, and they have the
assignment of taking the most complex cases and developing the
positions that the general counsel would take in those cases.
It is also an office that allows us to have some uniformity and
consistency in the development of approaches the general
counsel's office would take.
Mr. Snowbarger. So normally those 40 people all work
together to come up with a solution for a particular problem?
Mr. Feinstein. Well, in some cases, they may confer
together, but each case is assigned to an individual within
that office, and they work in teams and they work together.
There are other----
Mr. Snowbarger. That can be done by teleconferencing or
something of that nature, or they need to meet together?
Mr. Feinstein. As I say, it depends on the nature of the
case. Each case is assigned to an individual, depending on the
nature of case and the complexity of the issue--if I could
proceed, others who work in Washington within the general
counsel's office include an office that hears all of the
appeals from the region about cases that are dismissed.
Again, according to our statute, anyone has a right to
appeal the dismissal of a case, so we have a division in
Washington that hears, that gives, in effect, parties a second
chance to make their case before the agency that their case has
merit. The case gets an independent review in that office to
determine whether or not the case has merit.
This is an important aspect of the quality review, in
effect, of our regional operations, and it gives us a chance to
make sure that what is happening in the regions is consistent
throughout the country and consistent with the perspectives of
the general counsel's office.
We have another division which is our Enforcement Division.
As the chairman alluded to, the general counsel serves a role
that once the Board has made its decisions, none of those
decisions are self-enforcing. They all have to be enforced
through action in the Federal courts, and we have a Division of
Enforcement which handles all of our appellate court litigation
in enforcing Board orders.
We also have a special--we have a Supreme Court Division
which handles appeals to the Supreme Court, and we have a
division which handles other kinds of issues that might arise
when the agency is involved in other kinds of legal actions.
When novel things happen, we have some who work in that
division as well.
We also have a division which we now call our Compliance
Division, which deals with cases once they have gone through
the courts and there still is a failure of compliance; we have
some experts in the field seeking ultimate compliance under
those circumstances.
We also have a Division of Administration which is the--we
have a centralized Administration Office that does all kinds of
things like procurement and personnel actions, and it also runs
our entire computerization program. So there is an
Administration Office as well, and that I have described as
what is in the general counsel's office. There is an additional
staff of about, I think 100 or 125 that are the Board staff.
Mr. Snowbarger. OK. I understand that you have a number of
functions that you have to perform. Again, I am still
perplexed, though, that we have a third of your force here in
DC when, by your statistics, we have between 90 and 95 percent
perhaps of all cases being settled at the field level and then
a complaint that we don't have enough people in the field, when
they are already doing 96 percent of the work. So I am not
quite sure why we are centralizing things.
Let me----
Mr. Gould. If I may, Congressman, our hiring since we have
been in Washington has been in the field; we are
decentralizing. We have hired people in the field and we have
allowed our staff in Washington to attrit, so our whole
movement has been toward the field.
But I think there is another point that you must be aware
of, and that is that when the case is settled or withdrawn, you
are talking about a relatively abbreviated period, and----
Mr. Snowbarger. That depends on your perspective, I think.
Mr. Gould. Well, that is the fact. I am saying, compared to
the litigation that is involved with our administrative law
judges who come from Washington or a number of other places in
the country and compared to the procedures that go on
thereafter.
Mr. Snowbarger. I understand that it can be quite an
ordeal.
Mr. Gould. So you are talking about work which is very
important to our agency, but which, in terms of time, takes a
relatively abbreviated period. But we are trying to put more of
our resources into the field.
Mr. Snowbarger. With again, mid-90 percent of these things
either settled or dismissed or withdrawn, why do we have such
backlogs?
Mr. Feinstein. If I may, when we refer to backlogs, we are
referring to--we have two essential measures of backlogs: that
is, how long it takes us to get to the investigation of a case
and how long it takes us to get to that case. What we have--so
what we are talking about, in essence, is how long it takes us
to process that case. Again, we have to process every case that
comes to us.
As I have suggested, the reason we have backlogs is because
we have fewer people handling more cases and they are more
complicated cases. It takes them longer to get to that case, to
resolve that case, and that is the definition of our backlog.
Mr. Gould. Also, Congressman, you know in the mid-1980's we
did have in Washington an enormous backlog problem that was in
the order, as I have indicated in my opening statement, of
1,600 cases. We have brought that down in late 1995 to the low
300's, and a historic, all-time low since 1974.
So I think that our record since our term in office has
been, relatively speaking, a very good one in that regard here
in Washington.
Mr. Snowbarger. We have a vote to get to in just a minute.
Let me see if I can ask one more question.
We keep referring back to staff loads way back when; I
don't remember the timeframe that you are going back to to
compare staff loads and caseloads. I guess my question is,
whatever this time period was that we were comparing to back
there, how many of those cases were as a percentage, were
deemed to lack merit or settled? Would it be roughly the same
percentage?
Mr. Gould. The merit factor and settlement factor has
remained very constant throughout the history of this Board.
The merit factor and the general counsel, of course, makes a
determination as to whether the case is going to--unfair labor
practice case is going to be prosecuted has remained around 30
percent, or the low 30's, mid-30's, in that area. The
settlement rate has remained very constant.
Now, the one thing that we have done since we came here is
to recognize that while we have always done a very good job in
settling cases in the region, historically the agency did not
do as well once the battle lines were drawn and once the matter
was about to go before an administrative law judge; and that is
why we introduced the settlement judge concept, which has
enjoyed a great deal of success over these past couple of
years. We have used it in more than 200 cases and settled
approximately 140 of them, and those would be cases which would
consume weeks and, in some instances, months of both the
agency's resources--the taxpayers', if you will, resources, as
well as those of private parties.
So our record historically in the settlement area has been
good. What we have done is improve upon it by focusing upon the
need for settlement at other stages of the process where--
beyond the early investigative stage.
Mr. Snowbarger. Is it fair to say that if the percentage of
nonmeritorious claims has stayed the same and yet you have had
a dramatic rise in the number of cases, that means you have
also had a dramatic rise in the number of nonmeritorious cases?
Mr. Feinstein. No. The caseload itself, the number of
charges brought before the agency, peaked in around 1980, and
it came down somewhat steadily until 1985 and 1986. Since about
1988 it has stayed about level--come up a little, gone down a
little, but stayed. So the number of cases brought before the
agency has stayed the same.
What has changed significantly is our staffing level. That
has come down, so we have less staff doing the same number of
cases. But within the cases that we have, as the chairman has
indicated, the merit factor has remained essentially the same,
the settlement rate has remained essentially the same; and our
litigation success rate has remained essentially the same. The
basic indicators along those lines have all remained
essentially constant.
Mr. Gould. Our average productivity of an employee at the
Board has increased in this past decade by 30 percent, and our
administrative law judges who are handling this caseload, which
has remained, as the general counsel indicated over this past
decade constant, our staff of administrative law judges has
been halved since the early 1980's. We did not hire one single
administrative law judge from 1981 through 1994.
Mr. Snowbarger. Mr. Chairman, I have some other questions,
but I think----
Mr. Shays. What we will do is, we have another vote and we
are sorry that we have these interruptions. Some days we don't,
but today we have a lot of votes, so we will recess for about
10 to 15 minutes.
[Recess.]
Mr. Snowbarger [presiding]. At the chairman's suggestion,
we are going to go ahead and get started and try to wrap up
this round of questioning. He will be back shortly. And since I
am the only one here, I guess I will do the questioning.
I would like some help. Although I have been an attorney
and have been in private practice, I have not handled a labor
case, an NLRB case, and so I need some questions answered, kind
of about the process, so that I can get a better handle on
this.
How does one of these cases start? Normally a worker comes
in, I presume, and files a complaint?
Mr. Gould. Any person, any person; it could be a worker, it
could be an employer. Our rules say that any person may file a
charge with our agency; and it would be filed in one of the
regional offices or one of the subregional or resident offices.
Mr. Snowbarger. I presume that person has to be aggrieved
in one way or another.
Mr. Gould. No. The rules say, relating to the filing of a
charge, do not provide for any kind of standing to sue
requirement. A party may file a charge and the general counsel,
through the regional director, is obliged to investigate that
charge and to determine whether there is cause to believe that
a violation of the statute exists. That is in connection with
unfair labor practice cases.
The representation cases, to which the general counsel is
not a party, are filed through petitions which can be lodged by
an individual employee, a union or employer, in the field
offices, regional offices also.
Mr. Snowbarger. Well, I guess--I really didn't want to
pursue this at this point, but I guess I will.
If anybody can walk in off the street and file a complaint
and we are finding out that 60 percent of these are
nonmeritorious claims to begin with, is there something we need
to do with our labor laws that would prevent someone that does
not have a legitimate grievance from filing these claims?
Mr. Gould. Well, the difficulty, as I see it, Congressman,
is that, you know, this question of who is aggrieved and who
has standing to sue is really a very big area of litigation in
our courts as a general matter. You know that there are many
Supreme Court decisions on this issue. The whole thrust of the
handling of cases at the regional level is informality,
handling them in an expeditious way. We are not really involved
at that stage in litigation.
Now, the general counsel becomes a party and the respondent
becomes a party if the general counsel issues a complaint.
I would also point out----
Mr. Snowbarger. Let's go on to that next stage, though.
Mr. Gould. Well, if I could just complete my answer, we
also have in the regions an information officer, and an
information program, which is designed to weed out complaints,
charges that have no merit or have nothing to do with our
statute.
For instance, a lot of people are under the impression
that, well, if they have a grievance against their employer or
if the employer is dissatisfied with his or her employees that
they can lodge a claim with our agency, and we have information
offices at all of our regions which are designed to weed these
out.
Mr. Snowbarger. Is a complaint required to go through the
information officer?
Mr. Gould. There is no requirement to go through the
information officer.
Mr. Snowbarger. So if you have already predetermined that
you want to file a grievance----
Mr. Feinstein. This was a program that we instituted in
1980, and I think we have had considerable success with it. It
is designed to deal with the person calling for information or
coming into the office wanting to know what their rights are.
We get about 200,000 such inquiries a year, only 5 percent of
which result in complaints. We think that that is a significant
filter of nonmeritorious or irrelevant cases, and is one of the
contributing factors to the growing complexity of our cases,
because these kinds of irrelevant or inappropriate charges are
filtered out.
Mr. Snowbarger. And that is not included in the 60 percent
that you talked about earlier?
Mr. Feinstein. That is correct. Those are numbers that
relate to charges that have been filed.
If I could amplify on one point, it seems to me that one of
the key successes of our agency, unlike some other agencies, is
the historic ability to get to that charge very quickly. Our
historic time line has been 45 days to make that merit
determination.
Now, it requires a lot of work within that 45-day period.
We have--obviously the case has to be staffed and investigated.
We are not doing as well as 45 days anymore because of all of
the factors I have mentioned, but it is still within a 7-, 8-,
9-week period.
From the filing of that charge, the nonmeritorious charges
are weeded out of the process, so that within a relatively
short period of time, any charge that lacks merit is disposed
of and the case is closed. And that is again--as I suggested
earlier, I think one of the success stories of the agency is
the ability to deal with the nonmeritorious cases quickly.
Mr. Snowbarger. I would agree that is probably a success
story for the agency. I think it may be a terrible record for
the law if we have that many people who feel that they are
entitled to make claims, and it turns out that they don't have
any merit.
Mr. Gould. Well, if I could----
Mr. Snowbarger. Let me get some questions in on other
cases. I am going to run out of time--in fact, I have, and I
appreciate the extra time by the timekeeper.
Let's go on to the next step. We have a claim that has been
filed. Now, can you kind of walk me through what happens then?
Mr. Feinstein. Yes. It is assigned to an investigator who
immediately contacts the party filing the charge to present
evidence to sustain the allegations and the charge, and the
parties are contacted and it is investigated. Again, we have
specific time targets for the completion of that investigation,
and now we also have a process of trying to prioritize that
case somewhat, and the resources that we will devote
immediately depends somewhat on that.
A determination is made whether or not the case has merit.
There is what we call an agenda meeting, and there is a
decision made, that the regional director has responsibility
for, as to whether the case has merit or not. If it doesn't
have merit, it is dismissed. If it does have merit, the first
thing that we do is try to settle it. If we are unable a settle
it, a complaint will issue alleging a violation of the act.
Mr. Snowbarger. How many of these are settled before the
complaint is issued? Do you have any feel for that?
Mr. Feinstein. I would--again, this would be a rough
estimate; I don't know. Of the cases that have merit, I would
say, oh, a quarter to a third perhaps are settled.
Mr. Shays. Let me just say, if some are here who can assist
us in this, I think it might be helpful to have them testify. I
mean, these are questions that you shouldn't be surprised that
would be asked, so----
Mr. Feinstein. Well, we are looking for a specific number
of the percent of precomplaint settlements.
Mr. Shays. I just want to say, there is nothing
embarrassing about having other staff respond to these
questions, so if there is other staff that has been sworn in
that can answer these questions, I would be happy to have them
come sit up here. You weren't sworn in?
Mr. Snowbarger. One of the few.
Mr. Shays. Well, let me do this. Do you have a few
questions along this line?
Mr. Snowbarger. Well, they are actually trying to walk me
through the process. It seems we get into deep holes every time
we take a step.
Mr. Feinstein. If I could continue, a complaint would
issue, and again, settlement efforts continue, and the
complaint is set for a hearing before an administrative law
judge. If we are not able to settle that case before that time,
the case would proceed to a full hearing before an
administrative law judge in which the general counsel
represents the charging party and there is a respondent to
reply.
The administrative law judge hears the case and issues a
decision, an administrative decision of the ALJ. That decision
is appealable to the Board here in Washington. After the Board
renders its decision, that decision can only be enforced
through action in the Federal courts.
Mr. Snowbarger. OK. Now, who pays the cost of pursuing
these allegations--the investigation, the complaint, pursuing
it through the ALJ? Who pays the cost of those?
Mr. Gould. Insofar as the--of course, insofar as our agency
is involved, the taxpayer pays the cost of it. Insofar as
private parties are concerned, they pay the cost of it.
Mr. Snowbarger. OK. So we have the business paying its own
attorney's fees, the aggrieved party, presuming there is a
valid grievance, he is having all of his expenses paid by the
taxpayer.
Mr. Gould. Let me just make two additional points. One is
that, of course, given the fact that we are an administrative
agency, you do not have to be a lawyer to be--to appear before
the agency and frequently charging parties are represented by
lay people. And the other point I would like to make is that
there is a statute which allows a party to recover attorney's
fees where it is found that the general counsel did not have a
substantial reason for pursuing the matter in the first
instance.
I would like to quote from the language of the statute,
``but in a limited number of circumstances, attorney's fees
where the person does use an attorney before the agency are
recoverable.''
Mr. Snowbarger. How often does that occur?
Mr. Gould. It occurs--I don't know what the precise number
of cases is. It occurs obviously in a small minority of cases,
because generally the general counsel has a substantial reason
for proceeding.
Mr. Shays. Let me do this. Mr. Sanders will be recognized,
and we are just going to come back and just have you walk us
through. You will be able to finish your line of questioning.
We will go back and forth.
Mr. Sanders, you have been very patient and you have as
much time as you want.
Mr. Sanders. Thank you very much, Mr. Chairman.
Gentlemen, it is my understanding that the Board has used
more procedures which call for voluntary compliance. Can you
tell me how encouraging voluntary compliance in settlements
aids in the helping of the economy and the efficiency of the
agency? In other words, what is the short-term financial
benefit and what is the long-term financial benefit of
encouraging voluntary settlements?
Mr. Gould. Well, it is enormously important because what it
does is move our society away from litigation and lawyers,
which are time-consuming, and impose a burden both upon the
taxpayers and upon private parties.
What we have done is--and we think that this is of enormous
benefit to the economy. What we have done is to discourage
litigation through our settlement judge initiative, through our
bench decision initiative, and also through devising approaches
toward the resolution of controversies which----
Mr. Sanders. Would I be correct in assuming that expedites
the process as well?
Mr. Gould. It does expedite the process as well,
Congressman, particularly the bench decision initiative that I
alluded to.
Mr. Feinstein. If I might add one other thing, we would be
lost, really, if we did not have a settlement rate in the 90's.
Each percent in our settlement rate we have estimated saves us
$2 million.
Mr. Sanders. Is that right?
Mr. Feinstein. Right. Each fluctuation up or down in our
settlement rate has a $2 million consequence, either up or
down.
Mr. Sanders. OK. Much has been made of the Board's
increased use of 10(j) injunctions. Can you tell me how the
issuance of a 10(j) injunction helps in resolving a labor
dispute?
Mr. Gould. Well, it helps because so many of the cases
where we speak about--talk about the possibility of 10(j)
result in voluntary settlements where the parties don't even
have to use our normal unfair labor practice machinery, let
alone the judiciary.
The rate of settlement, as well as success for the Board,
in 10(j) cases in Federal district court is very high. We
either win or settle in the high 80's or 90 percent of the
cases in which we pursue 10(j). Of course, what 10(j) does by
producing a settlement in those contexts is to really make
unnecessary the very arduous and time-consuming process that
otherwise needs to be pursued, which in many instances would
take 3 or 4 years of litigation. 10(j) moves very quickly
compared to normal litigation and thus is a savings to both the
parties and the judiciary.
Mr. Sanders. Thank you. I apologize, I have been in and
out, and if you have answered this question, just tell me; all
right?
It is no secret that business interests have accused you of
being biased in favor of labor at the expense of business. Do
you think--is it your judgment that that is a fair charge and
how would you respond?
In other words, presumably your job is to be fair and you
are being attacked for not being fair. Can you respond to that?
Mr. Gould. I would say two things, Congressman. One is
that, in the first instance, I don't think it is accurate to
say business interests have attacked us. Some business
interests, those who, I think, are recidivist employers, the
rogue employers who do not believe in compliance with our
statute.
Many business interests have spoken favorably, supported us
in the appropriations process and have said that while they
disagree with some of our approaches to the statute, they
believe that we have functioned in a responsible manner. But I
think that the proof of the pudding lies in the fact that we
have acted as an impartial arbiter, we have reached out to
representatives of both labor and management.
I mentioned my advisory panel, which is composed equally of
union and employer representatives. We have facilitated
cooperative initiatives through our interpretations of section
8(a)2. I think that the hallmark of my chairmanship has been a
balanced approach to labor and management which takes into
account the competing interests of both.
Mr. Feinstein. If I may, Congressman, in terms of the
operation of the general counsel's office, we have a number of
means of trying to assure neutrality and evenhanded treatment
of cases. We do an extensive quality review in each of our
regional offices each year in which actual files are examined
to see the thoroughness and the completeness of the
investigations and that all of the relevant procedures and
necessary procedures are employed.
The statute itself, I think, builds in some measure of
neutrality, and that is that any Board decision, as I mentioned
before, has to be enforced in the courts. Our success rate in
the courts has held steady. It is consistent with past success
rates, another measure, I believe, of the evenhanded record of
the current administration of the agency.
We also have an appeals process whereby the decisions of
the regional offices are appealable to Washington for further
or second level of review, if the party so desires it. Our rate
of appeals, of the acceptance of appeals, has also stayed
consistent.
Mr. Sanders. Do you think the evidence is pretty clear that
based on the work that you have done and what you have
accomplished, you are not being prejudiced?
Mr. Feinstein. Yes. I just wanted to note these specific
measures and what we have to gauge them.
Mr. Sanders. Let me just ask another question, and I should
give you a little background and tell you that I am very
unhappy with the current state of labor law in America. I think
it--and that is obviously not your problem. Your problem and
your job is to enforce the existing law.
I think, in fact--in terms of the needs of working people
in this country who want to join unions, it is in fact very
difficult for them to do so. Maybe you would comment on this
scenario.
I have talked to workers who have been active in trying to
form a union, and they tell us that the people who are working
hard to form a union are fired. They tell us that sometimes
after they negotiate a first contract, the company refuses to
sit down and in good faith negotiate, and people then give up
in a year or two. And there are some people who are now telling
me that in order to form a union, they don't even want to go
through the NLRB process because it just takes so long, that
you are understaffed, and they think that all of the appeals
that the well-funded companies have make it almost impossible,
if you can believe this, in the United States of America to
form a union.
You know, for example, in Canada, if 50 percent of the
workers in a shop, plus one, sign a card wanting a union, they
have a union. That is the end of the process. And it is my
understanding that labor law in the United States is far more
backward, far more antiworker than it is in any country,
compared to any country in Europe or Canada.
Do some of those workers have a concern?
Mr. Gould. Well, I think that since the 1970's,
deficiencies in our labor law, as written, have become more
apparent. The ability to delay our processes exists in the
procedures. The main tool in appropriate circumstances that we
have is section 10(j) where, in appropriate circumstances, we
can effectively combat the problem of delay. But the situations
that you refer to--the dismissal of employees, the inability to
negotiate a collective bargaining agreement in a fledgling
relationship--is a very difficult one and one which in some
instances highlights the deficiencies of our law. I have long
advocated reform of our statute, which would overcome some of
these problems.
Mr. Sanders. Mr. Snowbarger, a moment ago, wanted you to
run through a scenario, and that is not a bad way to learn
information, but let me pose another problem. Let us just say
Mr. Snowbarger was a militant worker who wanted to form a
union.
Mr. Snowbarger. We do have fantasies around here, don't we?
Mr. Sandler. And I was an employer who had a lot of money,
was prepared to pay big bucks for some antilabor consultant,
which is going on all over the country, and I fired him, and
his union said that was unfair. How long could I stall that out
to get him his job back and get him his compensation if he did
what an American citizen has the constitutional right to do?
Mr. Gould. Well, on the order of 3 years or more, it
takes--we have described the various steps of this process. You
file a charge, you investigate it, you issue a complaint, you
hold a hearing, you take an appeal from the decision by the
administrative law judge, you come here to Washington a year or
so, or a couple of years later, and then you go to the circuit
courts of appeals. Then a petition for----
Mr. Sanders. So if Mr. Snowbarger is a worker earning $7 or
$8 an hour and he forms a union, or tries to, and he is fired,
it could take--and I have all kinds of resources and lawyers
behind me--it could take him 3 years before he got his job back
or was compensated?
Mr. Snowbarger. Will the gentleman yield? Who would be
paying my legal costs at that point in time?
Mr. Gould. You would not need to, if you were a worker,
you----
Mr. Snowbarger. So what we have is this rigid----
Mr. Sanders. Let him answer the question.
Mr. Shays. Gentlemen, gentlemen, excuse me, excuse me. This
committee has always allowed everyone to ask questions and
always allowed witnesses to answer. You are on your 11th minute
and we have to go through 15.
I do think he should answer the question, but I will take
control.
So the question you asked was----
Mr. Snowbarger. Well, we have talked about the large
company with the large legal budget and all of this kind of
thing. Who is paying my costs as the supposedly aggrieved
employee?
Mr. Gould. You would be responsible for your costs, or if
you had a union that was willing to take up your cause, it
might pay for the cost. It would depend on the individual
circumstances.
Mr. Snowbarger. OK.
Mr. Sanders. All right. But my only point was that if you
have somebody who is trying to get by on $7 or $8 an hour, who
loses his or her job for a period of years, that person is at a
real disadvantage; and every employer knows it. I mean, I have
seen, I have heard of cases where even after a worker has
actually managed to form a union, the company refuses to
negotiate with them, and workers get beaten down and they
finally give up.
So I would say that it seems to me, based on my knowledge
of the situation, that we need sweeping labor law reform. My
impression is that Mr. Gould and Mr. Feinstein and the others
are doing the best they can with the existing law, but the
truth of the matter is, the law, in my view, is very prejudiced
toward workers in this country, very much in favor of those
people who have the resources, the financial resources, who are
antiunion; and the result--the proof is in the pudding, the
proof is that time after time, workers who are trying to form
unions are unable to do so. Hopefully, we are seeing some
changes in that regard.
Mr. Gould. If I may, just in response to Congressman
Snowbarger again, the--I said that you would pay your own costs
and fees, and you would if you had your own lawyer or if the
union became your lawyer. If the general counsel issues a
complaint on behalf of a union or an employer, the general
counsel proceeds with the matter; and the charging party, be it
an employer or a union, would have to find some way, if they
wanted to use counsel, to pay their own costs.
Mr. Feinstein. I want to mention that about one-quarter of
the cases before the agency are cases that are initiated by
employers, where the employer is the charging party.
Mr. Sanders. So here I am, Mr. Snowbarger, trying to
protect your rights to go out and form a union as the low-wage
worker. You may lose the next election, so you should be more
sympathetic with what we are trying to do.
Mr. Snowbarger. Very frankly, to the gentleman from
Vermont, I find it easier to get a job in a right-to-work State
than I do in a labor State anyway, so I will stay in Kansas.
Mr. Sanders. Some of us will try to make legislation
available so you do have the right to do that.
Mr. Snowbarger. I do agree with the gentleman that we need
major revisions in the labor law.
Mr. Sanders. But you are not going to support my
legislation probably. OK, thank you very much.
Mr. Shays. Mr. Barrett, do you have any questions?
Mr. Barrett. No questions, Mr. Chairman.
Mr. Shays. OK. I have a general bias that when Republicans
are in control, we walk in the moccasins of people who are
trying to run a business and trying to--trying to make a
payroll, and so we tend to be a little more sympathetic to that
view, because those are the moccasins we walk in; and when
Democrats were in control, they just seemed to have a little
more sense of what some workers, particularly in some areas,
they have really struggled in.
And so I tend to think, when Republicans are in, they have
a slant one way, and when Democrats are in, they have a slant
the other way. I think that is unavoidable, based on the
experiences we have in our lifetime.
Mr. Feinstein, how do you--let me back up and say, you have
immense powers, because those cases you choose not to move as
quickly on, those cases you choose not to prosecute, you in a
sense have become a judge, as most prosecutors have, so I know
you know that is an immense power.
How do you get to make sure that you are trying to walk in
someone else's moccasins and be as fair as possible? What
process do you try to instill in your staff?
Mr. Feinstein. Well, I think that is obviously an important
question, and I know the agency has historically--the general
counsels through the years have taken very seriously, for
exactly the reason you have suggested, that the--that
responsibility to make that initial determination as to whether
a case has merit or not.
We have, as I began to suggest, very just processes,
systems, if you will, within the agency to try to assure the
quality of that decision, to try to assure the consistency and
that that decision is based on all of the available facts, and
that that decision is indeed the right decision. We have a
process of reviewing files in all of our regional offices on an
annual basis.
Mr. Shays. How many regional offices do you have?
Mr. Feinstein. Thirty-three regional offices and
subregional offices. Some of those have satellite offices so
that there is a total of 52. We have random audits of files
conducted by people who have expertise in that area in each of
these offices to get a sense of what is happening in those
cases and to make sure that the offices are following----
Mr. Shays. If you reject a case, dismiss a case, then that
can go directly to the courts?
Mr. Feinstein. No. If an individual case is dismissed--and
that was going to be the next thing I mentioned--there is a
right of appeal to our Office of Appeals here in Washington and
that case gets a de novo review. We have people who have
developed expertise in that area.
Mr. Shays. And your offices are out of----
Mr. Feinstein. The general counsel's office gives a
thorough review of that case and makes a determination either
to sustain the decision in the region, to dismiss the charge,
or they can overturn the decision in the region. As I say, we
consistently have from 3 to 5 percent reversal rate in that
appeals process.
We also, again, as I have suggested, have another
significant check on the agency's deliberations: how we fare in
litigation both before administrative law judges and ultimately
in the courts. If the Board has had to decide the case, that
case is appealable, in effect, into the Federal courts, and our
success rate in that litigation, I think is another important
of the ability that we have to oversee the efficacy, the
appropriateness of the decisions that are being made.
We also--as you alluded to, we measure the number of cases
where there is merit and where there isn't merit to get some
sense of the consistency of those kinds of determinations.
All of these suggest different ways that we have tried to
do the best we possibly can to assure that that original
decision on whether or not to go on a case is the right
decision, is the appropriate decision.
Mr. Shays. Now, when you take over from a previous
administration that happens to have been the other party--in
this case, it would have been the Bush administration, they
probably had an emphasis that went in one direction.
Where did you change the emphasis in terms of the kinds of
cases you wanted to see move more quickly and those that you
didn't?
Mr. Feinstein. First of all, the terms of general counsels
don't directly coincide with administrations. We serve a fixed
4-year term, so the previous general counsel, who was nominated
by President Bush, served a year-and-a-half into the----
Mr. Shays. But then there was a change?
Mr. Feinstein. Right. And I am sure that there are
differences in approach. Every general counsel brings----
Mr. Shays. There was criticism by labor that certain cases
weren't moving along. I have to believe that--were you the next
appointment from the Bush administration?
Mr. Feinstein. I was appointed by President Clinton.
Mr. Shays. Right. So you were the first appointment done by
the Clinton administration?
Mr. Feinstein. Yes.
Mr. Shays. So you were from this direction to this
direction, but, there is nothing wrong with that. I just want
to know, when you came in, did you agree with certain
criticisms that said, yes, we weren't paying enough attention
here and we should do something here; or did you just carry on
just like the previous administration had done?
Mr. Feinstein. Well, my emphasis was certain areas of
priority concern. The first one was to be more consistent in
our ability to get to an election after the filing of a
petition so that we would have a more uniform record in that
area. Another area of priority concern was the uniform
deployment of appropriate injunctive relief.
What we had found--one of the things that really stood out
to me--is that in seeking injunctive relief about a quarter of
our offices, maybe eight or nine of our regional offices, were
doing 70 or 80 percent of the injunction cases, while the rest
of the offices were doing little, if any, injunction work.
So we decided--we determined that there was a lack of
consistency among the offices, and so what we did was, we put
together a manual based on documents that had long been the
documents that were informing or processing in this area. We
did training, we restructured our offices a little to make sure
that injunctive relief was being considered in all of the
regions, not just in a few; and that, I think, is the reason
that we sought increased utilization.
What happened was not so much a change of approach, it was
the fact, in terms of the standards under which we would seek
injunctive relief, but we had offices that for various reasons
had not been considering that.
We also made an emphasis on quality, what could we do to
improve quality?
Finally, we implemented the program of impact analysis, but
that was a response to the funding situation. As our backlogs
were going up, we got concerned.
Mr. Shays. Let me get to that point. When you have a lead
case--you basically have like seven or eight cases that are
similar, you are not quite sure of the outcome--do you take one
of those cases and move it forward to the Board--tell me what a
``lead case'' means.
Mr. Feinstein. I am not sure what you are referring to.
Mr. Gould. Mr. Chairman, you are confusing his role with
mine.
Mr. Shays. OK. Let me say this--I don't want you to answer
yet. Just describe to me the whole issue--I am going to make an
assumption, Mr. Gould, that you have a number of cases that are
the same, and you group them together; but I will come back and
have you explain if that is right or not. Just explain to me
what ``impact analysis'' actually is.
Mr. Feinstein. Impact analysis was largely a response to
the growing backlogs. We wanted to make sure--we wanted to make
sure that the cases that were taking longer than the target
time for that case were the cases that were perhaps the least
time sensitive. Impact analysis is an effort to say, there are
some cases, clearly, where timeliness is of greater importance
than others; let us make sure we are focusing resources that
accomplish a more timely result in those kinds of cases.
There are certain cases which affect far more people than
other cases. There are certain cases that are much more
critical to the process of collective bargaining itself than
others.
Mr. Shays. Those would set trends for other decisions?
Mr. Feinstein. No, not necessarily set trends. There is
more a notion of the effect, the real-world effect, if you
will, of the case. We could have a case in which the
determination of the case determines the rights of 1,000
employees or more.
Mr. Shays. Do you have categories 1, 2 and 3?
Mr. Feinstein. Right.
Mr. Shays. Now, which gets the highest priority?
Mr. Feinstein. Category 3.
Mr. Shays. And tell me what fits into 3.
Mr. Feinstein. Well, they are cases generally that have--
that affect the most people, that are most central to the
process. An example, as I started to say, might be a case in
which the rights of 1,000 people are at stake; or it might be a
violence case in which there is some violence on a picket line
that is occurring, and a determination is made. It is important
that we get to this case before we get to a case, for example,
where there is collective bargaining ongoing, and someone is
seeking information, and one party feels that they haven't been
provided enough information. Rather than saying, we are going
to get to both of those cases at the same time, we are going to
say, no, we need to get to the former case more quickly.
It took us about a year for a task force of career people
throughout the agency making a determination as to what were
the kinds of decisions to go into making these kinds of
priority assessments, and then once the assessment was made,
how we could focus the resources.
Another point to this process is, there are certain kinds
of cases where we wanted to utilize different kinds of
investigative techniques, questionnaires or telephone
affidavits or other investigative techniques that might be
appropriate to a case of that nature, but not all cases. So we
wanted to be able to make those kinds of differentiations
between cases as well.
Mr. Shays. I am going to finish with just these two
questions, but just a quick answer to this.
A timely case is a category three still? Does category
three get your highest attention?
Mr. Feinstein. What we have done is adjusted the time
target. The time target for a category three case is 7 weeks;
the time target for a category two case is 11 weeks, and the
time target for a category one case is 15 weeks.
Mr. Shays. So whether it is for when you render a decision
to bring it to an administrative judge----
Mr. Feinstein. No, to the time we complete the
investigation and make the determination as to whether the case
has merit and to issue a complaint, if appropriate, or to
dismiss.
Mr. Shays. OK. Just since I raised it, the whole issue of
the lead case, and then I am going to--Mr. Kucinich, do you
have questions that you would like to ask? We are going to move
on to the next panel, if we don't, in just a second.
Mr. Barrett, just 1 second.
Since I threw out ``lead case'' as an issue, tell me the
concept of ``lead case.''
Mr. Gould. Mr. Chairman, what we try to do where there are
a number of cases congregated on a particular issue, we try to
select a case or a few cases which we think, when we get the
answer to it, will govern a number of other cases that are
pending with us, and that is ``lead case.''
Mr. Shays. OK. What would be the basis on how you would
select the criteria of what makes--how do you group it
together? What would be the basis for that?
Mr. Gould. You would group it together where the case
involved a theory that was very closely related or a charge
that was very closely related subject matter-wise.
Mr. Shays. How would you decide which case to take?
Mr. Gould. Which case you would take as a lead case?
Mr. Shays. Yes, of the seven or six or five?
Mr. Gould. Well, I think the one that would probably
present the full array of issues which would govern the cases
that will follow.
You might have--for instance, we have had these Beck cases
and there are a number of issues that are posed in these cases,
and what you would try to do is try to find a case that would
raise most or all of the important issues, and you would look
at--you would survey when other cases were pending with you.
You might pick one or two or three or four cases that would--
the resolution of which would spring all of these other cases
loose automatically. You would know, once you have the answer
to this one case, or two or three, that you would have the
answer in connection with a wide variety of others that would
follow in its wake.
Mr. Shays. Thank you.
Let me tell you the Chair's intention. We are already at
1:35. I am going to go to Mr. Barrett. I know that Mr.
Snowbarger has a number of questions, and I am happy to have
that proceed, walking us through this issue. But then I want to
feel that we then come to the other side and have some dialog
there.
We do have two other panels, and I am getting a little
concerned about that, so I would just share that with the
Members. Mr. Snowbarger has been here the whole time, so
obviously he has been asking more questions.
Mr. Barrett.
Mr. Barrett. Thank you, Mr. Chairman. I apologize to the
panel for missing the testimony and not hearing some of the
issues that have been touched on.
I would like to get a better feel for the usefulness of the
10(j) proceeding and how it is helpful. I know it has been
under some criticism, but how does it help and if you didn't
have that, too, what would be left for the parties?
Mr. Gould. Well, the classic kinds of cases that 10(j)
would be applicable to--and this is not an example which is
exclusive--would be where an employer has dismissed a large
number of employees or has acted in--has engaged in misconduct
toward those employees, where a union has engaged in violent
conduct or other forms of misconduct vis-a-vis, the employer.
And where a violation could be established, we could say that
there is reasonable cause to believe, as most of the circuits
have said, that there is a violation and where the passage of
time through our normal administrative process would erode the
fashioning of an effective remedy.
In the case of employees who are dismissed, if we go
through this process, which we described earlier, where a
charge is filed, a complaint is issued and so forth and so on,
when you get to the end of the hearing, it might be difficult
to even find the employees who are entitled to recover under
the status, let alone to compensate them.
So what you are able to do, through section 10(j), which
again is applicable to both union and employer misconduct, is
to get into Federal district court and obtain temporary
injunctive relief while the administrative process proceeds.
Now, the other, I think, major point that has to be made is
that in many of these cases where 10(j) is used or there exists
the prospect of 10(j), what we have done is to enhance our
processes where the parties are more likely and more able to
voluntarily resolve their differences with one another. We have
had settlements in a very high number of instances, a
substantial number of instances where we have resorted to 10(j)
in the Federal courts. And the reason is reported to me, as I
go around the country, that the prospect of 10(j) has produced
the same result in many instances.
So two major results: expediting the process, and making it
more likely a voluntary resolution without the resort which
would otherwise lead to arduous, time-consuming, expensive
litigation.
Mr. Barrett. In a typical case, does the party seeking the
relief come to you, or is it something that you typically would
say it is appropriate?
Mr. Gould. Well, generally what happens is that the charge
is filed in the region and the regional director, usually as a
result of a request by a charging party, but it need not be
that way, makes a recommendation to the general counsel. The
general counsel then determines whether the general counsel
will make a recommendation to us, and then on the basis of the
papers submitted by the general counsel and by the other
parties, the Board votes as to whether the Board will authorize
the general counsel to go into Federal district court to obtain
injunctive relief.
Mr. Feinstein. It can happen, and it typically does happen,
either way. The parties can request it, but that is not
necessarily the only circumstance. There are many instances in
which the parties request it, and it is our view that
injunctive relief is not appropriate. There are other instances
in which the parties do not request it, but in our analysis of
the case, we make a determination that injunctive relief would
be appropriate.
Mr. Gould. As you point out, Congressman, this is the way
the practice has evolved over the years long before we got to
Washington. You won't find this process described in section
10(j) itself.
Mr. Barrett. I am assuming that it is used more often on
behalf of employees; is that correct?
Mr. Gould. That is correct.
Mr. Feinstein. I might add, we have another provision in
the act, which is section 10(l), in which there is no
discretion. If there is a certain kind of a violation alleged,
then we are required to seek injunctive relief, and those are
instances where employers have been charged. They largely have
to do with a secondary pressure, inappropriate pressures being
brought by unions in a labor dispute.
Mr. Barrett. I know there has been some criticism about the
backlogs at the regional level. How has Congress contributed to
this? Is there something that we can do to help with this?
Mr. Gould. Well, I think that the major thing that Congress
can do to help the problem of the backlog at the regional level
is to provide us with an adequate budget along the lines of
what the President has requested. Most of our work is staff
work, it is employees. We need people to be able to investigate
and, where necessary, where settlement or withdrawal doesn't
come about, or where we don't find merit, to litigate. And in
order to have people, we must have an adequate budget, and I
think that that is the major way in which the Congress can be
of help in connection with the backlog in the field.
Mr. Barrett. What about the case tracking, automatic case
tracking? Is that helping, or is that helping to reduce the
backlog, or what is the purpose of that?
Mr. Gould. The case tracking system is designed to allow us
to be able to identify particular kinds of cases, to know what
it is that we have before us. We really, at this stage, don't
know whether a particular case involves, as it might, an
employee protest over working conditions, or whether it might
involve alleged discrimination of union activity. We can, I
think more effectively, discharge our responsibilities if we
know what is coming, what is coming before us.
Mr. Feinstein. If I could add to that as well, I think the
short answer is yes. The case tracking system that we are
seeking to implement to automate our case tracking process
will, in addition to what the chairman has indicated, affect
the thoroughness of our processing; it will also make us more
efficient. It is a more efficient way of processing cases. So
that too could indeed contribute to getting our case handling
load down.
Mr. Barrett. You have not had an automatic tracking system
before now?
Mr. Feinstein. We do have one, but it is one that was
established 15 or 20 years ago that is quite antiquated by
today's standards. We have significantly upgraded, of course;
we have become computerized, and we are now into the second or
third year of a process of switching over to a new automated
case tracking system which will be light-years ahead of the
system that we currently employ.
Mr. Barrett. No further questions.
Mr. Shays. Mr. Kucinich, do you have any questions?
Mr. Kucinich. No questions.
Mr. Shays. We are going to have a vote fairly soon. We have
10 minutes, and then being that you have been a faithful person
here the whole time, you have 10 minutes, if you want to go.
Mr. Snowbarger. Thank you, Mr. Chairman. With the help of
the panel, we will get through this quickly, if you could keep
your answers relatively brief.
Going back to the process here, I presume that once a case
has been completed, the administrative law judge makes his
decision and then there are consequences, presuming that the
person that you have--who had the complaint filed against them,
I presume there are consequences, I presume back wages to
employees?
Mr. Gould. There is no immediate consequence of the
administrative law judge decision unless the parties agree to
be bound by the decision at that particular point. The law has
an obligation to fashion a decision in accordance with the law
as it is written and to provide recommended relief. But the
order is not self-enforcing, nor is our order self-enforcing.
Mr. Snowbarger. What you mean is that they would always
have the right to appeal that decision?
Mr. Gould. That is correct.
Mr. Snowbarger. But if they presumed that they wanted to
stop at a certain--at your level, then there are some----
Mr. Gould. In 30 percent of the cases, exceptions are not
taken to administrative law judge decisions. The parties decide
right then and there to either abide by the decision or resolve
their differences in some other way.
Mr. Snowbarger. Again, typical of the decision, what are
the consequences?
Mr. Feinstein. Well, of course it depends on the nature of
the case. If what the case is about is that some unfair
bargaining tactics have been employed and one party has not
been bargaining fairly, the remedy would be an order to the
recalcitrant party to commence bargaining fairly. So some of
the remedies are in the nature of an order to simply stop doing
what you are doing and do it correctly.
There are situations in which discrimination has been
alleged where the remedy would be to cease the discrimination
and to compensate--not to punish, but to compensate--to punish
the wrongdoer, but to compensate the person who has been
wronged for that wrongdoing. Typically, if a person, for
example, is unlawfully discharged, then they would be entitled
to back pay, offset by any earnings that they have had in the
meantime to compensate that person.
Mr. Gould. Or that they would have obtained with reasonable
diligence; both interim earnings and that which they would have
obtained with reasonable diligence are deducted from the back
pay.
Mr. Snowbarger. All right. Let us take that as an example.
I realize that we can't get into all of the examples or all the
different kinds of remedies.
Let us say that we have a case where someone says they have
been wrongfully discharged--and we have talked about what the
consequences are to the employer if that turns out to be the
case. What are the consequences to the employee if it is
determined that the employer was within his rights to fire in
that situation?
Mr. Gould. The employee--if the case is dismissed, the
employee will not be able to obtain any form of relief
requested.
Mr. Snowbarger. But is there any consequence to it for
putting an employer through a claim that was not meritorious?
Mr. Gould. Well, if the general counsel determines to issue
a complaint, there is a statute; and we made some brief
reference to this before, the Equal Access to Justice Act,
which allows a party to recover against us, the U.S.
Government, if it has been determined that the general counsel
undertook the case without a reasonable basis for so doing.
Mr. Snowbarger. Is that something that the ALJ can take up
on their own, or does that have to be brought before them by
one of the parties?
Mr. Gould. That would be brought before them by one of the
parties. There have been 278 instances of that since this was
enacted in the early 1980's, and 100 applications of those
cases have come before the Court of Appeals. And these
applications before the Board have resulted in awards totaling
$897,000, and those before the courts have resulted in 16
awards, totaling $390,000.
Mr. Feinstein. That is over the last 17 or 18 years.
Mr. Snowbarger. Let me shift the line of questioning.
Are you familiar with the term ``salting''?
Mr. Gould. Yes.
Mr. Snowbarger. Could you just again briefly tell me what
your understanding is of that term?
Mr. Gould. Well, ``salting'' is generally applied--and I
must say it is a modern term; it is a concept that has existed
for many years, but it is a modern term because it appears as
though some unions are using this technique with greater
frequency. It involves the attempt by the union to use somebody
who is paid by them, or assisted by them in some cases, inside
a particular establishment, to recruit employees and to get
them to affiliate in the union so that there will be a
collective bargaining relationship.
Mr. Snowbarger. I would agree. That is my understanding of
what the concept means.
In the context of backlogs, insufficient staff to handle
all the workload, 60 percent of these cases being
nonmeritorious, these being all of your cases, not just the
ones that might be salting--well, maybe I ought to ask. What
percentage of your cases would fall in that category?
Mr. Feinstein. What percent fall within the salting
category?
Mr. Snowbarger. Right.
Mr. Feinstein. We are not able with our current tracking
system to differentiate cases by allegation. Also, most salting
cases are not pure salting cases; there are always ones that
are mixed. Under our new tracking system, that is precisely the
kind of determination that we will be able to make.
Mr. Gould. We are able to give you an answer to that from
the Board's perspective.
Mr. Feinstein. And we have surveyed the regions in terms of
trying to get some sense of it, and there are certain regions
where we have seen hundreds of such cases. The percentage.
Nationwide I don't think we have ever been able to get.
Mr. Snowbarger. Let me followup on that. You say that this
perhaps is a regional phenomenon?
Mr. Feinstein. We certainly have seen more of the salting
kinds of cases in certain regions than others, but I would say
it is probably--there are probably some salting cases in every
region, but there is certainly a stronger concentration in some
than in others.
Mr. Gould. In fiscal year 1995, according to our operations
management department, 358 cases were filed in the region; in
fiscal year 1996, 578 cases were filed in the region; and in
fiscal year 1997, up to June 6 of this year, 406 cases were
filed in the region. That is a total of 1,342 cases.
We, I think, had filed with us during that time about
120,000 charges, so that is 1,342, of about 120,000. In
Washington we see about 1,000 cases a year, a little under
1,000 cases a year. We have had 75 salting cases in Washington
that we have been able to identify; 44 have issued as Board
decisions, 41 unfair labor practice cases, 3 representation
cases. I think that that is over approximately a 4- to 5-year
period.
There are 24 salting cases pending before our agency now.
Mr. Snowbarger. Before the Board?
Mr. Gould. Before the Board. Before the Board in
Washington.
Mr. Snowbarger. Let me just make a couple of observations
and ask you to respond.
No. 1, the figures that you just gave me--358 in 1995, 578
in 1996, and in the first 8 months or something of that fiscal
year, or even--are we doing that by fiscal year?
Mr. Gould. Yes.
Mr. Snowbarger. So the first 8 months of this year, we have
406, so we are probably up around 700 or something of that
nature. I mean, I know they don't fall in any given year all
the way through.
Mr. Gould. With about 4 months to go in the year----
Mr. Snowbarger. But, in theory, we have another increase, a
significant increase in that kind of case.
Mr. Gould. I am not a mathematician, but it looks as though
we will come out along the lines of what we came out with in
fiscal year 1996.
Mr. Feinstein. If I may add, too, these figures are based
on a survey that we have done basically in response to
congressional inquiries; and I just want to----
Mr. Snowbarger. My other observation is this, and I would
ask your reflections on this.
I was given a statement that was entered into the record
earlier that just talked about six different companies, and I
only have these figures that I am going to give you for three
of those six companies. One of the companies had 14 unfair
labor charges filed against it; in other words, they were
either dismissed or they won it at the ALJ or whatever. Another
company is 47 out of 48. Another company was 80 out of 80.
As you were tracking these cases, does it begin to look
suspicious that some of these companies may be targeted for
these charges and unfairly targeted?
Mr. Feinstein. Well, again, our tracking system hopefully
will get more sophisticated.
Mr. Snowbarger. Well, certainly you would have it by
companies--I mean, by----
Mr. Feinstein. Right. Let me suggest that these cases of
course are investigated region by region. If the region has
reason to suggest that charges that are being filed are
frivolous, that they are based on perjured testimony, that they
are unreliable in any way, shape or form, that certainly is
accounted for in the investigation. Indeed, if we have good
evidence of perjury or malicious prosecution, we can and have,
in certain instances, referred that to the Justice Department
for appropriate action.
It is not a perfect system, but in these kinds of repeated
filings of charges that are frivolous, that are totally without
merit, that are baseless, there are ways in which the regions
can and do account for that in their investigation of the
cases. The bottom line is, we are required by statute to take
each and every one of those charges and investigate them and
make the merit determination. We don't really have an
alternative. We can't simply say, we are tired of these kinds
of cases; we are not going to investigate them anymore, we are
not going to consider them. That would require an act of
Congress.
Mr. Snowbarger. Should you have that authority?
Mr. Feinstein. Should we have the authority not to
investigate a case?
Mr. Snowbarger. Yes.
Mr. Feinstein. You are asking me a policy question?
Mr. Snowbarger. Well, you just said that you would need a
law to change your responsibilities. I am asking, should you
have that authority to make the decision if you want to pursue
a certain number of cases, and perhaps these are cases that you
don't want to pursue.
Mr. Feinstein. Right. Well, what I tend to say when asked a
policy question is that for 17 long, wonderful years I worked
here at Congress, and it was my job to help answer those kinds
of questions. But, since I have become an enforcer, I try to
shy away from those kinds of policy issues.
I would simply suggest----
Mr. Snowbarger. Well, then let me ask Mr. Gould, because I
notice in several pieces of information I have had from him he
says, ``such as I have advocated,'' and on and on.
Mr. Feinstein. I am sure that the chairman would have
something to say. But I would suggest that in any kind of
situation like that, many of these salting cases are merit
cases. They are cases in which the rights of employees are
being denied because of their union affiliation; and any kind
of an adjustment would have to, in my view, acknowledge the
fact that in any kind of a statutory scheme you are going to
have meritorious cases and nonmeritorious cases, and you have
to have some means of being able to separate the two.
Mr. Snowbarger. Sure. I understand that, and I guess what I
am trying to suggest in my line of questioning is that when
there is a meritorious case, there are consequences to that
case, to the person who brought it or to the person who is
charged.
When there is a nonmeritorious case that is pursued and the
aggrieved party is the loser, there is no consequence to that
party; and perhaps there ought to be a way to weed those cases
out, either changing your authority or changing the
consequences to those who file nonmeritorious cases.
Thank you, Mr. Chairman.
Mr. Shays. We are going to go to the next panel. We think
we are going to have a vote right away, and I was just thinking
that we might just have a break, because we are going to have
two votes at once.
Let me conclude by saying, Mr. Gould and Mr. Feinstein, is
there any point that you want to make before we go to the next
panel?
Mr. Gould. Well, the only point I would like to make, Mr.
Chairman, is one of the points that I started with, and that
is, we have taken--we have read your statement about our work
on GPRA and we regard this as a work in progress. We are really
learning, and we want to consult with you, learn from you, and
work with you toward providing a more effective statement.
I think that we have undertaken a wide variety of
initiatives that are designed to make our agency a more
effective one. I am very proud of the record that we have
obtained over these past 3\1/2\ years as an impartial, neutral
and effective agency in this world of labor law.
We look forward to working with you and to devising a more
effective statement to bring ourselves into full compliance
with what you deem to be the requirements of the statute; and I
thank you very much, Mr. Chairman, for the opportunity to be
here.
Mr. Shays. Let me just say, it is good to have you here. We
really haven't had enough interaction with your agency in
particular and labor issues in general. We have been focused on
HHS and Education and Labor and HUD issues, so it is important
that we get a little more involved. Some of our questions were
a little more generic; it is good to have you here.
We also are learning how we make the Results Act work, but
it is more than just a statement, it is really a whole way of
evaluat- ing your operation; it is helpful to you and it will
be helpful to us.
Mr. Gould. I recognize that, and I hope you will also
recognize how active we have been in employing strategies which
are de- signed to make our agency effective and efficient and
to accomplish our objective, because I think in this regard, no
Board has under- taken more and more that is effective in this
regard than what we have done these past 3\1/2\ years.
Mr. Shays. We have seen that, and we do appreciate it.
Thank you for it.
Mr. Feinstein. Mr. Chairman, I would just simply add, I
hear the bells, simply associate myself with the comments of
the chair- man. We do find this a very useful process. We
believe in the GPRA, and we certainly understand the need and
the benefit that we can get through consultation with you all
and GAO and others who are interested, and we certainly look
forward to that process.
Mr. Shays. I thank you both very much, as well as your
support staff.
I am going to say to the next panel, we have two votes. I
have been here 10 years and we have five lights, and I finally
figured out we have more than one vote. My understanding is we
have two votes, a 15-minute and a 5-minute, but they will leave
the machine open, so I suspect we are not going to be starting
until 2:30.
We will see you back here at 2:30, God willing. Thank you
very much.
[Recess.]
Mr. Shays. I would like to call this hearing to order and
to wel- come testimony from Robert Allen, who is the inspector
general, National Labor Relations Board, and Ms. Carlotta
Joyner, who is Director of Education and Employment Issues for
the U.S. General Accounting Office.
And I believe that, Mr. Allen, you are accompanied by Mr.
Mi- chael Griffith and Mr. John Zielinski. Do I say that----
Mr. Allen. That is correct.
Mr. Shays. OK. What we do is, first we owe you, obviously,
an apology that we've gone so long. And I apologize that you've
had to wait so long. But we do need to swear you in, as we
swear in even our Members of Congress when they come before us.
[Witnesses sworn.]
Mr. Shays. Thank you.
For the record, all four witnesses have responded in the
affirma- tive. We have testimony from two of them, Mr. Allen,
inspector general, and Ms. Joyner as well.
So, Mr. Allen.
STATEMENTS OF ROBERT E. ALLEN, INSPECTOR GENERAL, NATIONAL
LABOR RELATIONS BOARD, ACCOMPANIED BY JOHN ZIELINSKI AND
MICHAEL GRIFFITH; AND CARLOTTA JOYNER, DIRECTOR OF EDUCATION
AND EMPLOYMENT IS- SUES, U.S. GENERAL ACCOUNTING OFFICE
Mr. Allen. Thank you for the----
Mr. Shays. I'm going to ask you to pull that mic a little
closer. I'm going to have you put it on the other side of that
sign, if you can, because you're going to be looking toward me.
So lift it up a little bit. OK.
Mr. Allen. I appreciate the opportunity to appear here.
Can you hear me?
Mr. Shays. Yes, I can. I'm going to have you just lower the
mic a little bit. You know, and my esthetic sense bothers me.
I'm sorry. My wife complains. Can you take that name tag and
put it back up there.
Thank you.
Mr. Allen. I've seen it all too much.
Mr. Shays. OK. Well, thank you, Mr. Allen. Happy to hear
your testimony.
Mr. Allen. I'm the inspector general for the National Labor
Relations Board. I've been so since September of last year. And
before that, I served approximately 30, 35 years with the Board
in various capacities, and it's been said I've had every job
that they offer there. I do bring to the office a background of
the experience to the Labor Board that probably most inspector
generals do not have with their agency.
We have a small staff. We have three auditors and two
investigators. The chief auditor is here, and counsel in chief
investigator is here. We carry, or are carrying right now, 40
cases, open cases. And I came into this position with the grand
idea of engaging in a program of what I call preventive
medicine, because I believe it's better through education and
information to forestall or the happening of bad events than
try to cure them after they happen. Unfortunately, the press of
time and the case load has just not allowed me to do that.
We are simply flooded with cases. You have our last two
semi-annual reports. And I think our cases run pretty much the
gamut of what you find at any inspector general. As far as the
auditing goes, we are nearing the end of--or will in a couple
of months--of our financial audit of the 1996 appropriations.
We are in the middle of doing an audit and several
investigations into contract performance by one of our largest
contracts that we have led. And we, as soon as time permits,
plan to review the procurement functions through an audit
review and possibly investigation, and our property control,
and the back pay procedures used by the agency.
In June 1996, before I came upon this job, my predecessor
was John Higgins. He issued a report which the committee has
and which reviews the agency's process for measuring and
reporting on his performance.
I had nothing to do with that report. I only read it this
week. The supervisor auditor here today did. And so between us,
we can address it to you.
I would only initially say that, in my opinion, in 30
years, one thing that the Labor Board does good--and I can't
imagine anybody disagreeing--is that they do know how to
measure. And I'd invite anybody over to look at the chart room.
I've never seen any
agency or any business measure that works as well. And in the
way Mr. Higgins describes, it comports with my 30 to 35 years
experience.
And with that, if you have any questions, I'll be glad to
address them.
[The prepared statement of Mr. Allen follows:]
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Mr. Shays. OK.
Ms. Joyner.
Ms. Joyner. Mr. Chairman, I'm very pleased to be here today
to talk about the National Labor Relations Board's strategic
plan required by the Government Performance and Results Act. My
written statement focuses primarily on NLRB's July 8, 1997,
draft strategic plan. As you requested, we determined whether
the draft plan complied with the Results Act and the guidance
on developing strategic plans from OMB. To judge the overall
quality of the plan and its components, we use GAO's May 1997
guidance for congressional review of the plans.
Agency strategic plans are to provide the framework for
implementing all the other pieces of the Results Act and a key
part of improving performance. But the act anticipated that it
might take several planning cycles to perfect the process.
Agencies, as you know, are not required to submit their
plans to Congress until September 30, 1997. So we knew when we
reviewed the draft plan that it would probably be revised
before submission to Congress. In fact, as you have noted
before, it was revised, and we got a revised version on Tuesday
of this week, on the 22nd. We've reviewed that plan as well.
In summary, the draft plan of July 8 has deficiencies in
several critical areas and often omits important information
required by the act.
The Results Act requires the strategic plan to have six
specific elements. Regarding the first two of those, mission
and the goals and the objective, the first draft that we
reviewed, the July 8 draft, did not articulate well the mission
and the goals and objectives and how the various functions were
going to carry out the mission of the NLRB.
It also listed strategies but did not describe them. And it
entirely omitted three of the basic elements of a strategic
plan. Those elements are the relationship of the long-term
goals to performance goals that will be in the annual
performance plan that's due to the Congress in February of next
year; a discussion of external factors that could affect
achieving the goals; and a discussion of how pertinent
evaluations were used in establishing the goals and a schedule
of future evaluations.
We did find that the plan recognized some of the key
challenges facing the agency, including managing a large case
load and improving, with acknowledging to be deficiencies in
their information management system, the management information
systems.
But with respect to the management system, as you noted in
your opening statement, there were several important omissions
as well. One that you also noted that I would like to reinforce
is the idea that they are moving ahead with improving their
case activity tracking system, but they have not yet finalized,
as we understand it, what measures they are actually going to
be using in their annual performance plan. So there is a
serious concern that those not being linked may lead to
significant rework in the tracking system that they are
developing.
As I said, they produced a new plan after we discussed with
them our concerns about their other plan, and it is attached,
as you know, to the chairman's statement. This plan, in our
opinion, is a significant improvement over the previous plan.
With respect to the six required elements, the mission
statement focuses more on why the agency exists, its purpose,
and the issues that the agency is charged to address. The goals
and objectives move to progressively more detailed focus on
what they hope to achieve. For example, the plan moves
logically from mission, ``encouraging and promoting stable and
productive labor management relations,'' down to a goal,
``preventing and remedying unfair labor practices.'' And that
one, you can see, is further broken down into one objective
about doing so expeditiously and another objective about doing
it effectively--which they think of as quality and thoroughness
as well as ensuring compliance. So there is a logical flow. And
the strategies are presented. This time, unlike before, they're
clearly linked to the goals and objectives. However, there is
not very much discussion, as there ought to be, of what
resources will be needed and how the strategies will be carried
out.
Another problem with that portion of their strategic plan--
the mission goals, objectives, and the strategies--is, what's
missing is any sense of how they're going to communicate this
process, these goals and objectives, throughout the agency,
including across, as you spoke of earlier, the two
compartments, if you will, of the agency and who--how
responsibility will be assigned to accountability to managers
and staff for achieving the objectives.
The other three requirements are included in the revised
draft plan, but they need to be more fully developed,
especially the relationship between the long-term goals and the
annual performance goals.
For example, NLRB, we believe, should not have a false
sense of confidence that the work to develop an adequate set of
performance measures, which links to their strategic goals--
that that work is all done.
Assessing whether a set of performance measures is
consistent with the Results Act, we believe, can only be done
after the other elements of a strategic plan have been defined,
and NLRB has now made substantial progress toward defining
those other elements, such as the mission, goals, and
objectives.
I'll be glad to answer any questions that you might have.
[The prepared statement of Ms. Joyner follows:]
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Mr. Shays. Thank you.
Mr. Allen, I'm not clear where you see trouble areas in the
Department. Where do you see trouble areas? Where are the areas
that concern you most in the NLRB?
Mr. Allen. I think if we're talking systemic matters, I
think the workman compensation claims is certainly a problem,
and we have engaged in a program to improve that. And we have
even referred some cases to the U.S. attorneys.
But as you know, the Department of Labor makes the ruling
on that, but the various agencies pay for it. So there's not,
in my view, a lot of incentive for the Department of Labor to
deny them. And the agency ends up with a bill in it--and I
forget what it is, but it is substantial in my--that's one
area.
And we have done--well, actually Mr. Higgins, my
predecessor, started the program, and it's been continued.
I think maybe the other area that there may be some
concerns is in the performance by outside contractors and
possibly procurement problems. I won't--I really won't know the
answer to those questions until we complete ongoing
investigations that are going on now.
We also investigate--the question of bias came up and how
to--how does the agency control bias investigations and
determination of cases. We do have some investigations going on
on that. They're isolated, of course.
Now, one thing we do not do, whatever the--we do not
second-guess the case decisions of the general counsel of the
Board or regional directors. That's not within the jurisdiction
of an IG. There's a fine distinction, because we had a lot of
complaints. People, say, hey, you know, this case is not
decided right, and we have to tell them this. But then if they
go further and make some showing, well, maybe it wasn't decided
right because it's a misconduct, and maybe bias so blatant that
it rendered the investigation or the decision, it tainted it.
Mr. Shays. With the Department, you said the workers
compensation is one concern, out contractors.
How much progress do you believe the NLRB has made in
establishing the whole issue of objectives in establishing
performance goals and performance measurements as required by
the Results Act?
Mr. Allen. Well, the IG's office has not looked into that.
We've had no input into it, and we've not participated in it,
other than for the June report of John Higgins. And, as I said,
I wasn't present then, but the last thing that the Office of
the Inspector General did was that report. And of course I
preceded the strategic plan and everything that followed.
Mr. Shays. OK. I just have to tell you, it leaves me uneasy
that you, as inspector general, can't tell me how you think the
Department is doing with the Results Act.
Mr. Allen. I think if we're forced to tell you that, we're
going to have to make a review or investigation on audit, and
we have simply not done that yet. It is certainly--it is
certainly something that we can do.
And, Mike, would you address that?
Mr. Griffith. Mr. Allen mentioned that we did issue a
report back in June 1996. And that did include the agency's
progress in terms of meeting GPRA.
At that time, it was our assessment that the agency was
moving forward appropriately. We have not, as he indicated,
done any audit work or review work since that time until this
week when I did look at the agency's most recent strategic
plan, and, like GAO, I saw the need for improvement in that.
As the chairman indicated this morning, the agency is
making considerable improvements in that strategic plan to meet
the provisions of the law, but they still have a lot to go. And
as GAO mentioned, one of the big things would be the
performance measures, before they get too along in their
information system.
So we are looking at it, we just have not done extensive
audit work since that time.
Mr. Shays. Could you, Mr. Allen, give me a sense of why the
agency paid $1 million to a contractor for services which were
not performed satisfactorily or were not performed at all?
Mr. Allen. That's the allegation that's in--that's noted.
Mr. Shays. Allegation that's what?
Mr. Allen. That is an allegation that has been made and is
the subject of an investigation.
Mr. Shays. Right.
Mr. Allen. I----
Mr. Shays. Has the IG yet responded to that? Isn't there
some documentation?
Mr. Allen. We issued a draft audit. The inquiry since then
has expanded substantially. We're investigating it. We have
approximately three or four maybe--yes, four, at least, related
cases which we have grown out of it which we're investigating.
I cannot--I'll be glad to share the report with you, of
course, once we're finished. I do not think that it would be
appropriate at this time to get into it, because, as you make
your report, you interview your witnesses--for example, I've
subpoenaed over 1,000 documents, pages of documents, also
that----
Mr. Shays. How many work in your office?
Mr. Allen. There's myself, there's my chief counsel, one
investigator and three auditors.
Mr. Shays. That's it?
Mr. Allen. And an assistant secretary. Yes, that's it.
Mr. Shays. So you have not had a preliminary finding that
there was misuse of this money? There wasn't----
Mr. Allen. I--I have not made any finding.
Mr. Shays. OK.
Mr. Allen. That is correct.
Mr. Shays. Would you explain to me what we call the CATS,
the Case Activity Tracking System. Explain to me what this
system is supposed to do.
Mr. Allen. Well, that--once again, we have not made a
review of that. It is a new system to case tracking to replace
the old system which functioned for years. But we haven't--the
agency has more needs now, and such has been explained. You
can--under CATS, you'll be able to track a case from its
beginning to its end, and you can arrange it by subject matter,
which, for example, you cannot do now.
The part of our investigations that are going on now do not
involve the CATS matter. It involves other matters in computer
and computer maintenance, but it does not involve the----
Mr. Shays. Well, let me just say to you, though, that the
thing that concerns me is, if we have a problem with $1
million, we're going to at least be uneasy if the--the CATS
system is going to cost how much?
Mr. Allen. It's going to be more than that.
Mr. Shays. No; that's an understatement.
Mr. Allen. I'm sorry, I don't know.
Do you know, Mike?
Mr. Griffith. Well, a good bit of CATS expenditures has
been the actual PC, the hardware, that type of thing, and it's
several million dollars.
Mr. Shays. Have they spent 10 already?
Mr. Griffith. It will approach 10 certainly, once it's all
completed.
Mr. Shays. OK. Well, I have a little bit of discomfort, if
we're concerned how $1 million is spent, how they're going to
do with $10 million.
Mr. Allen. Well, you'll notice, Congressman, that we do
have an inquiry planned, complete audit review on our
procurement practices, and largely the concern growing out of
the investigations we're doing now, and that will be
accomplished as soon as our small staff can do it.
But we do have--one thing we do have, and I point out in my
report, we do have the power of subpoena duces tecum, which I
have used extensively for this for outside parties.
You know, inside the agencies, everybody is required to
produce documents and to cooperate. But when you have to go out
to, say, outside contractors, the only power you've got or
witnesses who may know something is your power to subpoena
documents. And I have subpoenaed----
Mr. Shays. Power to what?
Mr. Allen. To subpoena documents.
Mr. Shays. The other power is, you have the power to----
Mr. Allen. Well, within the agency, I have the power to
interview people, take affidavits, personal interviews, which
we have done, but I do not have the power--the Inspector
General Act does not give us the power to subpoena testimony.
Mr. Shays. But let me ask you this. You can take testimony.
But if you're the inspector general and you have an outside
contractor supplying a good or a service to a Department, the
mere fact that you have concerns, it seems to me, you would get
tremendous cooperation. If you didn't get cooperation, I would
think you would recommend that they discontinue the contract.
Is this a contract that's already been completed?
Mr. Allen. The--the one we're investigating is, yes.
Mr. Shays. It's----
Mr. Allen. It's been renewed.
Mr. Shays. It's what?
Mr. Allen. It's been renewed, yes. It's a 1996 computer
maintenance contract.
Mr. Shays. If you think you have any trouble getting
documents, I would like to know.
Mr. Allen. I have no trouble getting documents.
Mr. Shays. Do you have any trouble getting cooperation or
testimony?
I don't understand. If I had a contract and that contract
meant something to me and I had an inspector general come in
and ask questions, I would throw open my books to you in any
way possible. I realize you've got few people, and that's
certainly a restraint, but you have a tremendous power.
Mr. Allen. Well, in the beginning we did not have that
problem. I just had a subpoena returned with a letter from an
attorney which says, hey, we don't give this; it's irrelevant.
Now I fight that battle next week.
Mr. Shays. Well, you know, I have to be careful that I
don't, you know, interpret your nice kind of western southern
drawl as being an easy kind of guy, because I hope that when
you get that kind of reaction, that you are loaded for bear
here.
Mr. Allen. Well, I think we are loaded for bear, and----
Mr. Shays. Well, this is what we're going to do. I'm going
to ask my staff to personally inquire about this case and to
followup with you. And if we have to get the contractor before
this committee, we'll do it. We will get the contractor before
this committee if you don't get the cooperation. And we want
some answers pretty quick on it.
Mr. Allen. I expect the report on this----
Mr. Shays. Will be due when?
Mr. Allen. Certainly within weeks. Personally, if I can get
5 days away from the other cases, I can finish it, if you want
to have a specific answer.
Mr. Shays. We'll look to see some answers to this case.
Mr. Allen. In a few weeks, yes.
Mr. Shays. In September or a little earlier, I guess. But
I'll just leave it up to you discussing with our staff.
Mr. Allen. Sure.
Mr. Shays. We're happy to followup. And we're happy to--if
you do not get cooperation from an organization that's doing
business with the Government, we're very happy to have them
explain to us why they're not cooperating with the inspector
general of the United States overseeing a very important
Department.
Ms. Joyner, how do you think the NLRB is progressing in
linking its strategic plan annual performance goals to the
activities and operations that are in the budget?
I mean, how well are they--how well are they coordinating
what are strategic plans and so on with their--and their annual
performance goals to the activities and operations of the
budget?
Ms. Joyner. Well, in this most recent plan that we saw,
they have made some progress toward that, in that this time
what they present is what they call performance measures, which
we take to mean their statement of the kind of performance
goals.
As you know, they're called upon now to have their
strategic goals laid out and, in fact, to go ahead and describe
the specific performance goals that they'll be submitting along
with their budget, which in fact need to go to OMB for review
in September. So it's not way off in the future in terms of
getting clear on that.
So they do list some performance measures. The measures
seem to be well-linked, and they seem to be ones that probably
would provide some useful information.
My concern is about the set of overall performance
measures. It's not that I would be critical of any one of the
measures that they provide, but what's missing seems to be a
comprehensive look at the goal and the objective and then
delineation of the whole range of measures that would give me
some sense that I'm accomplishing these.
So whereas they have lots of measures--they have several in
the plan, and I understand they have many, many more--they have
lots of numbers and lots of measures.
For example, they've get a timeliness. They can talk about
timeliness and various segments and various goals, that that
part of their--their mission and their goals and objectives
that relates to the effect, the result, of what they've done
and, as they call it, even the quality of the decision.
To go back to the example I gave before on unfair labor
practices, what's missing in that set of performance measures
is any assessment of the effect of their enhanced compliance
efforts. So the biggest problem is the gap, the gap in the
kinds of measures that they're presenting.
Mr. Shays. OK. In terms of--I'm uneasy about the whole Case
Activity Tracking System. Is my uneasiness justified?
Ms. Joyner. On the basis of what's in the strategic plan, I
would say that this uneasiness is well-justified. There may be
more information than either of us has about the planning that
has gone into that.
Mr. Shays. Are you saying----
Ms. Joyner. But it's not in the plan. It is not written for
us to know about.
Mr. Shays. So are you saying in terms of the Results Act,
the whole CATS operation is not part of that Results Act? I
mean, you don't see it connecting between the two?
Ms. Joyner. What's missing right now is a delineation of
what measures they need to be able to demonstrate to themselves
and to the Congress that they've met the goals and objectives
that they've laid out.
Until they've decided what measures they need--and
essentially we talked with you about those, talked with you
about those measures in their consultation process and received
agreement that if we use these measures and perform according
to the standards we've set, we will be demonstrating success.
Until they've done that, they don't know what they need to
put in their Case Assignment Tracking System. They don't know
all the things that they need to have in there. So our concern
is that if they step back and say, ``we've been measuring lots
of things for 40 years but maybe we haven't measured all of the
right things and now we need to design some new measures,'' if
they were to do that, as the strategic process calls for, then
they would perhaps need to build into their tracking system
something that they're not currently planning to build in.
So until they've looked at the measures in the context of
what they're trying to achieve, they won't know that they have
all the right measures.
Mr. Shays. I'm going to ask in a second the staff to ask a
question, too, if we need to.
But, Mr. Allen, when you started out, you made reference to
measurements, and you said that the NLRB knows how to measure,
if anything knows how to measure. I lost the beginning of it,
so I didn't quite get your point.
Mr. Allen. The point--that's the point my predecessor makes
in this memorandum and I was trying to say.
Mr. Shays. His point was?
Mr. Allen. That historically going back to 1960----
Mr. Shays. Yes?
Mr. Allen. As a matter of fact, the NLRB has an impressive
measuring system. Now that's not to say that it meets the
requirements of the Results Act. I didn't mean to indicate
that. I'm just saying, historically, I agree with John Higgins
that I don't know of any agency or personally of any business
where you can walk in one room and it's charted all the way
around on any--on any single case activity will tell you
exactly where the performance is.
Mr. Shays. Well, I'm wondering if they can tell you, you
know, how many and what they've done. The question is, can they
answer the questions of why and----
Mr. Allen. No.
Mr. Shays [continuing]. And how well. You know, those are
the measurements that you know we're going to need to get into.
Mr. Allen. I understand that the Results Act does require
additional--additional measurements.
I might add, you were asking--you know, the IG really
hadn't been in on this. The IG Act does provide, in addition to
all wastes and abuse, that we should be in on the agency
programs on the economy and efficiency of it, and I assume
that's what you're referring to. The problem being the NLRB--
our staff has--has been so small, we have never, never been
involved in--for example, on the planning of--of how you--of
how you made a strategic plan or GPRA.
Now what happens, we will review it later at times, but as
far as being in up front----
Mr. Shays. Let me just ask you up front about this.
Mr. Allen. Yes.
Mr. Shays. What I think I hear you saying is, you're a
small office.
Mr. Allen. Yes.
Mr. Shays. And I would be the first to acknowledge that the
Government has required GPRA Results Act performance
measurements and so on.
And are you saying that even within your own office, you
have limited ability to determine a good plan and so on? I
mean, that would be a fair statement to say. And one very----
Mr. Allen. That wasn't what I was saying, though.
Mr. Shays. Does that happen to be true, though?
Mr. Allen. That happens to be true, yes.
Mr. Allen. But what I was saying is, looking at the
National Labor Relations Board, just not the inspector general
part of it, the IG Act provides that we should be in up front
on planning and function in such things as the strategic plan.
We have never, never to my knowledge, been able to do that,
either me or my predecessors, because of the smallness of the
staff.
Mr. Shays. Yes. Fair enough.
Mr. Griffith. Mr. Chairman, may I make a comment?
Mr. Shays. Sure.
Mr. Griffith. Just in regards what you're talking about, we
did go in, as I said, 15 months ago and assess where the agency
was on its strategic plan and meeting the various provisions of
GPRA as part of the overall review of measuring its ability to
fulfill its mission.
At that time, we made the assessment that they were moving
forward in an appropriate fashion. But they at that point did
not have a strategic plan finalized that we could actually
review.
What they had done, that we were able to confirm, is
they're dealing with theoretical experts in the area, quizzing
their employees, this type of thing. And they were also
establishing data bases by which they could compile their
information.
Mr. Shays. What I'm trying to get at is if you know, if I
had to come and set up a performance program in my own office,
as we try to do, we're pretty elementary in doing it; we don't
have someone who's going to graduate school with how you do
performance measurements. I have a graduate degree, and I've
had some background in this.
But I guess the point I'm trying to say is, this is new
territory for a lot of us, including the committee. I'm trying
to have a little sympathy for a small office that may not have
the expertise, because it's clear to me this isn't a primary
focus of your unit right now, and my first reaction is to think
this is really terrible, and then I'm thinking, wait a second,
we've got a small group of people.
Were you given any training yourselves in how to set up
such a process? Did you hire someone new to----
Mr. Allen. We did not.
Mr. Shays. Exactly. And so I'm just trying to sort it out a
bit here.
One last question. Then I am going to get to staff. The
Board is five members; correct? And, NLRB has only three
members sitting?
Mr. Allen. Three members sitting.
Mr. Shays. And only three members sitting for how long now?
Mr. Griffith. Since this past--let's see here.
Mr. Zielinski. Remember, Browning died.
Mr. Shays. February. A few months ago.
Has the administration brought forward any appointments yet
or nominations?
Mr. Allen. Not that I know of.
Of course, two of them sitting are not--you know, are not
confirmed members.
Mr. Shays. So we only have one confirmed member.
Mr. Allen. Yes. That's the chairman.
Mr. Shays. We have two that aren't confirmed, and we have
two vacancies.
Mr. Allen. Yes.
Mr. Shays. That's a pretty pathetic situation. I was going
to get into that, but we have so many other questions. That's
pretty pathetic.
What is the impact of having the three-member Board and two
of the three not permanent members?
Mr. Allen. Well, I think--of course, the chairman addressed
that. In my view, based on my experience of the agency as IG,
it means that I think some of the probably more difficult cases
do not get out, more important cases, in my view, because you
would want--you would want a bona fide five-member Board to
rule on those matters, and I think--I think it was--I think
that would be one of the biggest drawbacks.
Mr. Shays. Well, I'm going to talk with Mr. Towns about the
value of our weighing in on this, because, casting no
aspersions, it just simply needs to happen.
Ms. Joyner, any response to a three-member Board of which
only one is a permanent member?
Ms. Joyner. I really wouldn't have any basis to respond on
that.
Mr. Shays. OK. You haven't looked at that?
Ms. Joyner. No.
Mr. Shays. OK. Let me do this.
Ms. Joyner. We've not looked at this issue recently. We
did--back when we did a study in 1990, we issued a report in
1991. We talked about the high turnover in Board members as
being a problem contributing to some of the backlogs at the
Board level.
And, in fact, related to that, if I might expand on a
discussion that occurred earlier today, is that the backlog
after at the Board level--after decisions get up to that point
when we based on data from the end of 1996, it's now as bad as
it was back when we did this study, 1989; 16 percent of the
cases that reach the five-member Board stay there for over 2
years.
Mr. Shays. OK.
Ms. Joyner. And that was the----
Mr. Shays. Say that again now.
Ms. Joyner. After we----
Mr. Shays. Say exactly what you said again.
Ms. Joyner. Sixteen percent of the cases after they reach
the state of the five-member Board decisionmaking are there
over 2 years.
Mr. Shays. OK.
Ms. Joyner. And that's what they had set as, after we did
our work in 1991. And we looked at the backlog just at that--at
that level, at the Board level. We recommended that they set
some clear criteria for how long was too long and some
processes in order to make sure that they don't exceed that.
And that's what they said. And it did get better.
Mr. Shays. OK.
Ms. Joyner. But in the last few years it got worse again.
Mr. Shays. The committee needs to look at that again. I'm
going to work with my ranking member to see if we can make an
effort to encourage the administration to move forward.
At this time I would ask Cherri Branson if she has any
questions.
Ms. Branson. Yes, we have just a few questions for Ms.
Joyner.
Ms. Joyner. Yes.
Ms. Branson. First of all, GPRA requires that all the
agencies submit their plans by September 30, 1997.
Ms. Joyner. Yes.
Ms. Branson. What does the law provide if that doesn't
happen and if the agency fails to submit their plan?
Mr. Shays. I didn't notice that southern accent until we
had Mr. Allen.
Ms. Branson. I've had it for quite some time.
Mr. Shays. OK.
Ms. Joyner. We have to be careful, or mine will start
coming out too. That's what happens when I'm around it.
Mr. Allen. If you get two of us together, it will happen
every time.
Ms. Joyner. What happens if agencies don't submit their
plans? I have to admit, I really don't know. I'm not--I have
not heard any discussion of the consequences. I'm not sure what
there might be in the way of penalties for an agency that does
not submit their plan by then.
Ms. Branson. If the act doesn't have any penalties, then
what do you think may happen?
Ms. Joyner. I think that all the agencies will submit
something, and they will be quite variable in their quality.
OMB, of course, is a control point for this, agencies are
required to submit their plans to OMB first. I believe they're
due there no later than August 15. And then there--with the
feedback they get from OMB, they are to submit them to
Congress.
So I think the administration does take very seriously the
fact that they're a control point and they're supposed to get
some plans submitted. GAO has--on the basis of some earlier
work--looked at the progress agencies were making and issued a
report saying that, really, we do feel they're going to be a
very uneven quality.
Ms. Branson. Has GAO--is GAO working on a report now that
discusses overall GPRA compliance?
Ms. Joyner. One thing we're doing right now, upon request
from several Members of the House leadership, is we are--we
have reviewed the draft strategic plans for the 25 major
agencies. And this was a joint request from the House
leadership. And we have gone in using the same criteria that I
described earlier--in fact, that we used with the NLRB's
strategic plan. And we have reported in correspondence on each
agency as we got them finished.
I was responsible, for example, for the ones on education
and on the Department of Labor. And there will be a product
that pulls together what we found across those. And I think the
deadline for issuing that will be sometime in August that we'll
be issuing a report, if you will, what we call correspondence,
probably, that reflects our observations over these.
Again, these are the draft plans, and we recognize and we
try to be sensitive to the fact that the agencies have more
time to improve them. But--but we will be issuing some comment
about where they looked at least at that draft stage.
Ms. Branson. And it's my understanding that you have
reviewed, in preparation for this hearing, at least two
reports, draft reports, for the NLRB.
Ms. Joyner. Yes.
Ms. Branson. And then you stated there is a significant
difference between the first report and the second report.
Ms. Joyner. That's right.
Ms. Branson. So have you had--would you describe their
attitude as cooperative and--and willing to make change?
Ms. Joyner. They were very cooperative and interested in
what insight we could give them on ways to improve. They
repeatedly said, ``tell us what we need to do and we'll try to
do it.'' And they were receptive to the comments that we
offered.
Ms. Branson. OK. Can I just ask one more?
Mr. Shays. Sure.
Ms. Branson. Mr. Allen, does the NLRB have a chief
information officer?
Mr. Allen. The--we do have information officers, yes.
Ms. Branson. I mean under the CIO Act as--in addition to
the CFO Act.
Under the CFO Act----
Mr. Allen. I don't think so.
Ms. Branson [continuing]. All the agencies have to have a
chief financial officer. Under the CIO, they have to have chief
information officers who are responsible for the computer
systems.
Do you know whether the NLRB has a CIO?
Mr. Griffith. We do not have a CIO. We do not, I believe.
We can check on that.
Ms. Branson. Some of the problems you describe with the
CATS system could--do you believe they could be addressed if
there was a CIO?
Mr. Griffith. The--what's been discussed thus far in terms
of the CATS problem is that perhaps the agency needs to rethink
its performance measures to build into the data base so that
when it starts getting its information down the line, it will
be able to conform better with the requirements of GPRA, and
perhaps a chief information officer could help in that regard.
As far as some of the other issues that have been brought
up, the year 2000 problem, integrated accounting systems and
that type of thing--I don't believe that we have that issue at
the NLRB, and I don't think a CIO would have made any
difference.
Ms. Branson. Thank you, Mr. Chairman.
Mr. Shays. I thank you for the very good questions you
asked.
What we're going to do is, I'm going to go vote and we're
going to come back. And then Mr. Yager, Mr. Joseph, and Mr.
Hiatt will be asked to come.
And let me just ask, is there anything that any you would
like to--any point you want to make?
Mr. Zielinski, you haven't responded or answered any of my
questions. Is there any point you want to make given what
you've heard, the questions?
Mr. Zielinski. Yes, I would just like to--in partial
response to the staff question with regards to the CIO, I'm not
entirely sure NLRB is covered under the CFO Act because of its
size. The agency has, in the wake of problems with the computer
system, brought in a new director of management information
systems branch who just came on board in the last 2 weeks, who
was a deputy CIO at GSA, in fact. I think that may well address
the question. I'm not sure if GAO is even aware of that. They
are attempting, I think, to tighten up in the management
information system area.
The other thing is I--I think perhaps to relieve the
chairman's concerns about our perspective on the complaining
and so forth, I can tell you that that has been an element
within the inspector general's office.
Mr. Shays. That's been a what? I'm sorry.
Mr. Zielinski. An element within the inspector general's
office. And we've had, I guess for 2 years now, a strategic
plan both for the audit side and the investigative side of the
office. And that's something under review at this time to
update.
So it's not necessarily a lack of cognizance, but it's kind
of like rowing in the rowboat upstream against the current with
the size of the staff and amount of issues that are there.
Mr. Shays. OK. Thank you.
Any comments, Ms. Joyner or Mr. Allen?
Ms. Joyner. I would just like to reiterate that I think
what this strategic plan exercise provides the NLRB is an
opportunity to look beyond what they've done, possibly quite
well in terms of tracking what they have been doing and how
fast, and to focus on the results and why they exist and what
ought to be different in the workplaces out there as a result
of their actions.
Mr. Shays. OK. All set, Mr. Allen?
Mr. Allen. Yes.
Mr. Shays. OK. Let me just recess and apologize to the
third panel, but we'll be back very quickly.
Mr. Allen. Thank you.
[Recess.]
Mr. Shays. Stay standing, and we will swear you.
We call this hearing to order and invite Mr. Daniel Yager,
vice president and general counsel, Labor Policy Association;
Mr. Jeffrey Joseph, vice president of domestic policy, U.S.
Chamber of Commerce; and Mr. Jon Hiatt, general counsel, AFL-
CIO.
And we are happy to have you here. Raise your right hands.
[Witnesses sworn.]
Mr. Shays. Thank you.
This has been a long day, and you are probably saying, why
did I get here so early? Maybe you were smart enough not to get
here so early. I do appreciate you being here. All three of you
have very important testimony. I think you will probably want
to express some views that we haven't yet heard, and we welcome
that.
We will start as I called you and begin with you, Mr.
Yager, and then go to you, Mr. Joseph, and then Mr. Hiatt.
STATEMENTS OF DANIEL V. YAGER, VICE PRESIDENT AND GENERAL
COUNSEL, LABOR POLICY ASSOCIATION; JEFFREY H. JOSEPH, VICE
PRESIDENT FOR DOMESTIC POLICY, U.S. CHAMBER OF COMMERCE; AND
JONATHAN P. HIATT, GENERAL COUNSEL, AFL-CIO
Mr. Yager. Thank you, Mr. Chairman.
Mr. Shays. Thank you very much.
Mr. Yager. My name is Dan Yager. I am general counsel for
the Labor Policy Association. This is an organization
representing the senior human resources executives of over 250
major corporations. We appreciate----
Mr. Shays. Can you move the mic down just a little speck?
Mr. Yager. Am I too loud?
Mr. Shays. No, no, you're not loud enough. It's a little
far away from you----
Mr. Yager. That's new. That's the first time anybody has
complained of that, Mr. Chairman. Usually, people tell me to
tone it down.
Mr. Shays. Maybe what you say, they tell you to tone it
down.
Mr. Yager. Content? No, I can't agree with you there.
I appreciate the opportunity to appear before the
committee. I think even more so, our organization appreciates
this committee focusing on this agency, because I think our
concern, a lot of it, is that over the last several years, and
not just the current regime, there really has been a lack of
public or congressional attention to this agency. And in part
because of that, and because of a number of other factors, we
really feel like the agency has, to a large extent,
degenerated. It has become viewed by many parties as really a
political agency, and there is a feeling that to actually get
justice, if you can afford it, you just sort of wait out the
Board's process and then get the case into the Federal courts
where you are more likely to get some consistency, some
reasonableness. And, as you might imagine, only people who can
afford to do that are actually able to do that. And for the
little employer, that doesn't help too much.
Obviously I don't have enough time today to go through all
the cases that we have described to document our concerns.
Earlier this year, we published a monograph, ``NLRB: Agency in
Crisis,'' which I believe we sent to you. In our testimony, we
primarily focused on updating that and not going back and
reiterating those cases but using some of the new cases.
We have a number of concerns. I will just throw out one
example: the perception that when there is an election, and the
union loses, the Board will very often use any minor
transgression by the employer to call another election and give
the union another bite at the apple.
On the other hand, when the shoe is on the other foot, we
don't always see that to be the case, and there are a couple of
recent cases that have even gone so far as to say that where
there are allegations that the union or somebody actually
forged union authorization cards--those are the cards that a
union will use to get the employees to sign to show the Board
that there is enough interest to have an election. There have
been allegations in a couple of cases where those were forged.
This was after the election.
The Board actually took the position that those allegations
were irrelevant, that in fact once the employees had voted on
whether to have a union or not, alleged forgeries of
authorization cards were irrelevant.
Now, from my point of view, if I was an employee and I had
just voted for a union and had later found out that they had
actually been fabricating signatures on official legal
documents, I might want to have another chance to vote on that
union.
That's one example. There are numerous other examples.
Mr. Snowbarger went through a number of complaints about
all the numerous baseless charges that are filed, and these are
frequently part of what is called a corporate campaign which is
designed to harass an employer and cause it to expend precious
resources litigating matters that really don't have any merit.
While the Board continues to allow that sort of thing, in a
couple of recent cases they have actually moved against
employers who, in State court, have attempted to defend their
own legal interests.
For example, Beverly Enterprises had been subjected to some
libelous activity by the SEIU on the picket line. They sued
SEIU in State court, and, in turn, the Board went after them
and in fact even tried to get an injunction to stop Beverly
from defending its own interest in State courts completely
outside of the labor laws.
So, while at the same time they are allowing unions to
harass employers, they are taking away a lot of the employers'
defenses.
I think a lot of the problem we see today is that the
Board, I think, to some extent, has outlived its usefulness at
least in the adjudication of unfair labor practices. I think
there is still a need for the Board to administer elections.
You need a neutral party to do that sort of sensitive issue.
But in the adjudication of unfair labor practices, I think the
concept in the thirties was that we have got this broad new law
that we are passing and it is going to apply to all of these
industries; we need some expertise from those industries and
some workplace experts to help translate that law into the
various instances that it will apply to.
Well, it has been 60 years. The law has pretty much been
fleshed out. We are down to nuances now, and what we have seen
for the last 15 or 20 years is really just nuances and a
shifting of policy depending on whether it happens to be a
Republican Board or a Democratic Board.
In the meantime, what is happening to the parties--and we
even heard this this morning--is a long, lengthy process to get
a case through the Board which can take anywhere from 1 year or
2 to sometimes 5 or 6 years. We give an example in our
testimony that is 8 years and counting and still hasn't been
resolved.
We would query, wouldn't it perhaps make more sense to go
right into Federal court? The Federal courts----
Mr. Shays. May I interrupt you, since I am the only person
here. They don't have the ability right now if it is a long
case to just go directly to the courts?
Mr. Yager. Well, they can try an injunction, Congressman,
and in fact----
Mr. Shays. I am talking about the two parties.
Mr. Yager. Oh, no; you have to go through the NLRB for most
cases. There is a very narrow range of cases dealing with
secondary activity.
Mr. Shays. That might be something all three of us can talk
about, and if I forget to ask, I'd love you to respond to it.
I'm sorry to interrupt.
Mr. Yager. Actually, we would be very interested in
pursuing this with you, Congressman, because if you look at all
the other cases that the courts now deal with in the employment
area--Americans with Disabilities, complicated cases in the
antitrust area--I don't think the courts necessarily need a
panel of experts any more to filter through these various case.
It may make more sense and it may make for quicker relief and
quicker resolution of the issues to go right to Federal
district court and have the trial there.
One possibility would be to retain the general counsel
function. There's pros and cons both ways on that. But I think
where you need to get past and where most of the really bad
delays occur are after you have had the trial, the fact-finding
process by the administrative law judge. The matter then sits
before the court--before the Board for, even under a good
Board, a year and a half. I am not sure what the exact averages
are or the mean, but I know it's at least somewhere in the 9
months to a year case. But it is certainly not unusual for a
case to sit there for a year and a half or 2 years. And then if
you wind up going to the courts anyway, what did you gain by
having that case sitting before the Board?
I also think that the Board, in the recent seeking of the
injunction against the Detroit newspapers to which we are
strongly opposed, it is interesting because Chairman Gould--and
I believe he included this in his testimony--wrote a rare
decision as to why he was agreeing to authorize the 10(j)
injunction. A large part of his reason for authorizing it--and
I think he more or less said that this morning--was to avoid
the lengthy delays that further adjudication by the Board would
accomplish.
Well, to me, that is an admission, what possible purpose is
the Board serving here?
I might add as an aside that that case sat before the Board
for 2 years before it even did get to an administrative law
judge decision, and the general counsel never sought
expeditious review by the administrative law judge and didn't
seek an expeditious review by the Board, which makes it
puzzling as to why 2 years later, all of a sudden, it would be
all that urgent that they would proceed with a 10(j)
injunction.
And on that, I think I'm--in the interest of time, I think
I will go ahead and finish before my regular time is over.
Mr. Shays. Actually, we extended. Your regular time is 5
minutes, but we are giving witnesses 10. Since you waited so
long, you deserve that at the very least.
Mr. Yager. I believe I've said everything that I need to. I
appreciate the opportunity to appear, and I will be happy to
answer any questions.
[The prepared statement of Mr. Yager follows:]
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Mr. Shays. Mr. Joseph, you will have 5 minutes, and I'm
going to roll it over another 5 if you need it.
Mr. Joseph. Thank you, Mr. Chairman. I appreciate the
opportunity to be here.
I'm Jeff Joseph with U.S. Chamber of Commerce. Our Chamber
is a federation of more than 3,000 State and local Chambers,
more than 1,200 associations, and about 200,000 companies. Most
of our members are small businesses, most of our members are
not unionized, but nevertheless I am here to report the
perception that they all seem to be getting that the NLRB, as
an agency, has lost its focus from once being an objective
arbiter of labor-management disputes into something that has
gone into the captive side of organized labor.
The perception they have is that the political structure
has overtaken the efficiency and the administrative functions
that were originally delegated to the agency and it will take
strong oversight by the Congress and this committee to try and
provide balance back into the process.
I think it's self-evident that the Board's critical role as
an impartial and independent agency was unilaterally changed by
the current chairman who, not long after being confirmed, made
no secret of the fact that he considered himself a member of
the President's administration. He said the same thing under
oath this morning.
Quite frankly, I have a hard time understanding how he can
get away with that. This reflects his belief somehow that the
Board is not a neutral, independent agency bound to enforce
existing law but, rather, a policy-driven organ somewhat
related to the administration. As a result, we believe the
Board's decisions are tainted with the suspicion that its
determinations are designed to achieve the political ends of
the administration rather than the purposes and policies of the
National Labor Relations Act.
How can he say that, since they are a judicial function,
and then mention that he is a member of the President's
administration? How can Congress, which has to arbiter between
executive branch agencies and independent agencies, allow
someone who is independent of the administrative branch walk
around and say that he is there to follow the directions and
the goals of the administrative branch? I think it is clearly
improper, if not illegal.
We believe that there are other factors that erode the
Board's credibility, Mr. Chairman. You have talked about the
situation of just having a few people there, only one confirmed
by the Congress. That obviously undermines the credibility of
the agencies in the labor management community as well as in
the courts. We think the Board's credibility has been
diminished by other actions as well: Salting, which was raised
earlier; corporate campaigns; secret ballot elections; new
rulemakings; a number of efforts that are very clearly, from
our members' perspective, being undertaken to support the
unions in their organizing efforts.
If you stop and step back for a second and look into the
world of business today, you see the stock market at a record
high, the economy doing great, 90 percent of the employees not
choosing to be in unions, the majority of workers are now
working for small businesses, and you find as employees have
chosen over the last several decades not to become members of
unions, union strategies, instead of trying to encourage
workers to go their way, are using tools to try to coerce
employers to basically throw up their hands and say, OK, you
guys win; come on in and take them over.
We think this whole confrontational strategy of management
versus labor which was set up 65 years ago in the industrial
era makes no sense at all as we go into the 21st century. And
to second some of the comments that were just made, we think
it's time to look at all of the labor laws, including the NLRA,
in terms of thinking what processes and procedures make sense
in dealing with workplace rules and regulations.
The Board, under Chairman Gould, appears to be creating new
laws even though he assured Senators during his confirmation
hearings that he would merely interpret existing laws. But
during the past 3 years, the Board has overruled or
significantly altered the law a number of times, and the Court
of Appeals has not looked favorably on these actions. My full
testimony cites a number of actions where they have been taken
to task for again going off of the historical, beaten track.
And because of our--the allegations that we are making that
everything is tied to being a member of the administration and
the goal of trying to align NLRA and NLRB actions with the
intentions of the administration, we think the greatest
challenge to peaceful and cooperative labor relations lies
ahead.
As you know, in February, Vice President Gore announced to
the AFL-CIO Executive Committee that the Clinton administration
planned to issue an Executive order and regulations that would
virtually require all government construction projects to be
performed pursuant to project labor agreements and would debar
government contractors that violated or were alleged to have
violated various labor laws, including the NLRA.
You heard in testimony earlier today about frivolous
charges and how many get dismissed, yet this becomes a new
stick, a new club, that could be used potentially by organizers
as a way of intimidating employers to coerce to union demands.
We think that in light of the administration's plans, it is
appropriate for this committee and this Congress to ask the
Board a number of questions.
First, Congress should know to what extent NLRB employees,
including Board members and its general counsel, have been
consulted by the administration as it prepares new
administrative regulations.
The next question should be an effort to learn to what
extent would such regulations affect union organizing and the
NLRB, and would the Board's role enforcing those regulations
require more funding or less than it now receives, and what
role will the Board have in enforcing the regulations in
consulting with other agencies, and to what extent would that
role fit in with the Board's current responsibilities.
We believe that labor relations stability is absolutely
essential to most businesses, especially those whose employees
are represented by a union. But when the Board routinely alters
established precedent, it's not possible for the employers to
know whether the actions that they have planned are potentially
in violation of the NLRA. This information could be essential
to avoid a Board finding of huge liability and back pay or
other make-whole relief.
The Chamber urges Congress to make more aggressive steps to
control what appears to be the NLRB's efforts to rewrite the
National Labor Relations Act, effectuate administrative policy
objectives, and provide even more weapons to aid labor's
organizing drives.
Thank you.
[The prepared statement of Mr. Joseph follows:]
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Mr. Shays. Thank you.
Mr. Hiatt.
Mr. Hiatt. Thank you, Mr. Chairman.
This is the fourth congressional committee to hold an
oversight hearing on the NLRB in the past 2 years. The prior
hearings have largely served to provide a platform for those
who have declared war on the Board and to pursue their
continuing attacks, and I want to say that it was most welcome
but, at the same time, a sad commentary perhaps on what has
come before, that the chairman felt compelled to assure us that
today, at least, there is no hidden agenda.
Mr. Shays. Let me just tell you, Mr. Hiatt, only because
I'd heard that criticism from your organization, and, frankly,
I was slightly outraged by it. So I just want to explain to you
why. It came from your organization, since you mentioned it,
and we have been deficient in not looking at all labor
activities because we have five panels.
So I find it interesting that you want to start your
testimony this way.
Mr. Hiatt. I am sorry, Congressman. I just wanted to say
that we have not suggested that about this subcommittee in the
slightest, but the fact is that in some of the hearings that
have preceded this one, the focus has been not on the kinds of
questions that were asked of the Board this morning or the
kinds of testimony that was delivered but, rather, simply on
providing a forum for complaints about actions that the Board
has taken now, no different from those that the Reagan and Bush
Boards took and were taken in prior decades, but which some
segments of the business community, at least, are suggesting
represents such a diversion from the past.
There was a commission established by the President 3 or 4
years ago headed by former Secretary of Labor John Dunlop,
composed of both labor and management representatives, in which
business and labor and others were invited to testify, and the
business community was effectively invited to describe all that
they felt was wrong with the NLRA and the NLRB both in terms of
substance and in procedure, and they could not--the business
community kept assuring the commission that the law was working
just fine, that the Labor Board was working just fine, that
there was absolutely nothing wrong, that no changes were
warranted, with the one possible exception that some members in
the business community felt should be changed concerning
section 8(a)(2), the TEAM Act kinds of issues.
And yet today, because of what is viewed as a more
aggressive enforcement of the law, some of these same
representatives believe that total overhaul both of the law
itself and of the agency is called for.
I just want to be clear that the AFL-CIO also sees much to
be disappointed about in the way that the act is being
administered today. We are certainly troubled by the large and
growing backlog of cases awaiting investigation, a backlog that
has nearly doubled in just 3 years. We are troubled by
restrictions that have been placed on investigators that limit
their ability to ferret out the facts. We are troubled by the
vast majority of meritorious charges that continue to be
resolved by a minimal slap on the wrist. And we are troubled by
the continuing backlog of cases awaiting decision by the Board
as the median length of time from the filing of a charge to a
decision by the Board is stretched to over 18 months.
And especially in light of these delays, we are deeply
disturbed by what appears to us to be a significant retreat by
the Board in its use of the section 10(j) injunctions, which
are intended to secure immediate relief from unfair labor
practices committed by employers or unions.
We are also disappointed by the fact that there is only one
confirmed member on the Board, two recess appointees, and two
vacancies, and we appreciate your offer to try to spur the
administration to addressing that. We think the Senate
leadership needs to be spurred as well, since we are told that
the Senate leadership has indicated that they have no interest
in having these appointments taken up for consideration. And if
that is wrong, we would welcome action in that area.
Notwithstanding all of that, the fact remains that the NLRA
is the only national law that recognizes the fundamental right
of working people to associate freely for their mutual aid or
protection. And they have to depend on the general counsel's
office and on the Board to vindicate those rights of free
association. And when the agency is bloodied, it is working
people who suffer, and to some degree that is what is happening
now.
Consider the matter of NLRB funding. Law enforcement, as we
have heard this morning, is very labor intensive work. The cost
of lawyers and investigators continue to rise, yet since 1985
the Board's budget has been slashed in inflation-adjusted terms
by 17.4 percent and the agency's had to reduce its staff by
more than 25 percent.
And as disturbing as this defunding has been, the
appropriations process itself over the past 2 years has, we
fear, done even more damage to the cause of effective
enforcement of the laws. The Board has been overtly threatened
with budget cuts if it ruled in a particular manner in a
particular case that was pending before it. To its enormous
credit, we feel the Board has stood up to those threats, but as
a result of its independence, the Board has faced the
possibility of budget cuts so large that they would have
destroyed the agency.
And even though those cuts--threatened cuts were scaled
down, the Board has suffered a real cut of 6 percent over 2
years as the price for being, in the words of the chairman of
the House Appropriations Committee, ``too intrusive.''
Meanwhile, as I say, some segments of the business
community have launched a propaganda war against the Board that
is designed to rationalize the defunding and the interference
with the Board's independence by illegitimizing the agency.
Mr. Yager says that the only issue that seems to count in a
dispute before the general counsel and the Board is, how can
the interests of the union involved be enhanced by the agency?
And while that rhetoric is powerful, the specific charges lack
any basis in fact. Let me just give you a few quick examples.
The LPA claims that the general counsel's office cares more
about furthering the interest of the union, but in fact the
general counsel is dismissing upwards of 65 percent of the
charges filed with him, three-quarters of which are filed by
unions and employees, and this is the same percentage roughly
as was true under the Reagan and Bush Boards and before that.
Second, while the LPA accuses the Board of making Herculean
efforts of finding employer violations to overturn elections
when unions lose, in fact those objections continue to be
overruled in 75 to 80 percent of all cases; again, the same
percentage as under the Reagan and Bush Boards and the Boards
before that.
Third, the LPA claims that where employees have rejected a
union in an election, the Board has simply ordered the union to
bargain with the union anyway by making bargaining orders a
common tool, and there have been a lot of unfair labor
practices during the campaign. But, in fact, the Gould Board
has issued an average of 8.4 such orders per year, which is a
rate which is a third below that of the Reagan and Bush Boards
were issuing bargaining orders at, a fact that is not mentioned
by the LPA or the business community that now complains so
loudly about these bargaining orders.
Fourth, the LPA claims that the Gould Board has been the
worst performer of any board in the past 30 years of securing
enforcement of its decisions in the courts of appeals. But if
you use the LPA's own definition of wins and full wins, partial
wins, partial losses, and so on, the Board's win rate in fiscal
year 1996 was 78.6 percent and in the first 9 months of fiscal
1997 was 79.7 percent, which perfectly tracks the Board's
historical rate of 79.4 percent under the Bush-Reagan years and
before.
None of this is meant to say that--and I would just point
out that the three new cases that Mr. Yager relates in his
testimony this morning as examples where courts of appeals
overturned the Labor Board recently are cases which in one case
was initiated by General Counsel Hunter, Republican general
counsel; in one case joined by Board Member Cohen in a
unanimous decision that included the Republican member of the
Board; and in the third case----
Mr. Shays. I don't understand when you say--what was
unanimous? The Board had a unanimous decision and then they
went and asked the court to overturn a case they had ruled the
other way around?
Mr. Hiatt. The Board sought enforcement in the Court of
Appeals.
Mr. Shays. Right, right, right.
Mr. Hiatt. Or the losing party sought to overturn the
Board's decision, either of which is a common way of getting to
the Court of Appeals. And those were indeed three cases where
the particular courts took the Labor Board to task. That
happens about 20 percent of the time, but it always has. It
happened in the Reagan-Bush Board years, it happened before
that, and the three examples that are given today where a
particular court of appeals got particularly impatient with the
Labor Board were cases that were either initiated before Gould-
Feinstein came along or were joined by Republican members of
the Board.
Finally, the examples of cases that are cited now that the
LPA says, well, you can't just look at the statistical
analysis, you have to also look at the quality of the
decisions, and so a number of cases very selectively--in the
book that Mr. Yager has provided the committee in the past and
in today's testimony, very selectively parts of a few cases are
used to mock the Board's case handling today, the kinds of
decisions that are coming out today.
So, for example, this forgery case that Mr. Yager refers to
in his testimony today is a great example of that. It sounds
terrible. It sounds like the Board is approving forged
authorization cards. But if you look at the facts of this case,
what happened is that there were 131 people in the unit; 100 of
them had signed authorization cards. Under the Board's rules,
all that was needed was 30 percent, and a handful were
allegedly forged cards. The employer wasn't even able to prove
that they were forged, but the Board said, even if those few
were, that is irrelevant, you have gotten way more than the 30
percent, you are entitled to a secret ballot election, which is
where you can really test employee sentiment anyway.
So we will supplement the record, if we may, with respect
to the cases that were provided, as we did last year. The
handful of cases that are provided to make a mockery of the way
the Board is now deciding cases, we submit, gives a very, very
unfair and one-sided opinion. And what is new, we submit, is
not that the performance of the Board--is not the performance
of the Board itself but of these tactics of some Members of
Congress, not this committee, and some significant sectors of
the management community to delegitimize and destabilize the
agency, and those destructive efforts, rather than the record
of the Board itself, are indeed most sorely in need of your
committee's attention.
And I thank you for the opportunity.
[The prepared statement of Mr. Hiatt follows:]
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Mr. Shays. I thank you for you being here. It's nice to
have your testimony.
When I look at my understanding of the numbers of requests
by the Board for 10(j) relief, in 1995--I hope this is a
complete year--there were 47 requests, and--oh, it is partial.
So let me take 1994. In 1994, there were 85 requests and 62
petitions filed. In 1993, there were 42 and 34.
When would the Gould Board have been set up? They would
have been there in the 42 and 34, I believe.
Mr. Yager. No; they came in in April of fiscal year 1994.
Mr. Hiatt. March 1994.
Mr. Shays. I honestly don't see all that much difference.
Admittedly, in 1994 there were 85 and 62 petitions filed, but
in 1993 there were 42 and 34 petitions; and 1992, 27 and 24
petitions. So why don't we just start with that, and tell me--
actually, I want to put on record something.
I am going to take your first point, Mr. Yager. It seems
logical to me that if you can bypass a court system and go
directly to a Board, and hopefully resolve the case, to me, it
seems more logical than going directly to court.
Let me ask you the first thing. How many of the cases that
the Board decides are actually then furthered to the courts?
What percentage?
Mr. Yager. Of cases that are actually decided by the Board?
Mr. Shays. Once the Board has made a decision.
Any of you?
Mr. Yager. I can find that for you, Congressman.
Mr. Shays. Would we say it is 50 percent; 20 percent?
Mr. Yager. It would be my guess on the 50 percent.
Mr. Hiatt. No; I think it is closer to 20 percent. It is a
relatively small percent. Most of the cases are not appealed by
either the--by the losing party, nor does the Board need to go
to court for enforcement, because they are complied with in the
majority of cases.
Mr. Shays. But my judgment is, any time you can reduce the
number of cases that go before the courts, you would want to.
But what I don't understand is that it would strike me,
however, that if a case is pending for more than a period of
time, that you would almost automatically want to go right to
the courts. There would be a mechanism that would enable either
side to petition to say this is just taking too long, we want
to go directly to the courts.
What would be the response of any of the three of you?
Mr. Yager. Well, I think there have been suggestions in the
past as part of labor law reform to do something like that, but
it's more along the lines of obtaining something like an
injunction; in other words, injunctive relief in the interim
for the grieving party until the Board has actually ruled on
the case.
We obviously would have a problem with that. And that is
our problem with 10(j)'s; you don't get a full adjudication of
the matter before the Federal court. If what you are suggesting
instead is a mechanism whereby the case goes to the court and
it is fully litigated before the Federal court, I think that is
a step in the same kind of direction that we are suggesting.
Mr. Shays. My suggestion is that if the Board doesn't reach
a decision by a period of time, that either party would have
the ability to go to court and fully adjudicate. It would seem
to me that that might be a solution to both sides. There is
nothing that tells me that being in court--being before the
Board 6 years is a benefit to labor or management. I think it
is a plague on both houses.
Mr. Joseph, why don't you respond, and Mr. Hiatt, and then
we will come back.
Mr. Joseph. I think we need to rethink why we are here. We
are here because 65 years ago you had 37 percent of the work
force in unions and you had very tricky legal issues that it
was presumed that judges in general would not understand. And
so this kind of specialized body was set up, allegedly with the
expertise to be able to wade through the negotiated contracts
to determine who really struck John and who is entitled to this
or that. And you have an OSHA review commission, you have a
number of specialized groups, because the assumption was, the
generalized bench couldn't figure it out.
Now you have 90 percent of employees not in union settings
and the courts handling all sorts of court-related issues, some
judges to the point of saying it is overwhelming, how many they
get.
And I am not trying to suggest just do away with this and
continue to burden the courts with everything else, but I do
think that there needs to be a serious academic discussion
about the relationship of all the labor laws and all of the
potential enforcement mechanisms and how they are done.
Mr. Shays. I hear you have made that point, and I am asking
you to look at an incremental issue here. I know that you have
your desire to make major reform of the system. But would that
be an improvement to both sides to allow that if they were
before the NLRB and the NLRB simply hadn't acted by a
particular period of time--a year, 2 years, 3 years--some
particular period of time, that either side would have the
right to go to court directly and not wait?
Mr. Joseph. I can't subscribe to a specific period of time,
but I can confirm what you said. We have heard businesspeople
saying for years that these long, protracted proceedings do not
benefit them.
Mr. Shays. So you are saying that you can't speak for the
Chamber on an issue like this?
Mr. Joseph. Because we haven't taken a specific position,
unlike my colleague here.
Mr. Shays. So you can speak on total reform, but you can't
speak on this particular issue here?
Mr. Joseph. That's right.
Mr. Hiatt. We would certainly be interested in discussing
with the business community and with any committee whether
there could be some kind of procedural reforms that could help
speed things up. I think there would have to be a number of
questions that would have to be discussed as part of that.
For example, if moving to court simply then meant the
beginning of a new round of delays there, I mean, in our
experience, the courts are as--as bad as things are at the
Board, the time it takes to process the cases through courts
can be even worse. And, furthermore, once you get to court
under that kind of a procedure, does that mean that the full
range of formal discovery applies, or do you still have what is
really a much more informal and, in some ways, more economical
system at the Board?
There is no private right of action right now under the
NLRA. It is easy to forget this is not just unions and
employers that are using the NLRB. A large proportion of the
charges that are filed are brought by individual workers in
nonunion facilities, as well as unionized facilities, who do
not have representation, and particularly in low-wage jobs----
Mr. Shays. Tell me how it works for nonunion. I have made
the assumption--I'm exposing my ignorance--that most of the
cases that are adjudicated by the Board are representative
cases.
Mr. Hiatt. I think a majority are, but there is a large
minority, somewhere between 25 and 50 percent, I believe, of
cases are filed by individual employees, and in many cases they
are just as protected against--under the National Labor
Relations Act as a union employee is against retaliation for
organizing activities or any kind of concerted protest. If two
workers go to the boss and complain about something and get
fired, even if there is no union in the picture, that is the
one law where they have protection. They go to the Labor Board,
and they file charges.
And unlike under wage and hour laws or title VII, there is
no private right of action. They are totally dependent on this
agency to investigate that case and, if there is merit to it,
to process that case. They could not, as it now stands, go to
court on their own.
Mr. Shays. One of your points would be that there is a
record developed in the Board proceeding that then the court
makes a determination so they don't--they basically have a
transcript and a record to pass judgment on?
Mr. Hiatt. That might be one way--I mean, if you took--I am
sure you could talk about taking the proceedings and the
investigation as it developed through a certain point at the
Board and saying that if the Board hadn't concluded, that there
should be some access to the courts, and I think that would be
worth talking about.
But I think that there are--it does raise, as you suggest,
a number of issues about how much of the record then already
applies, depending on what stage you are at: Is there formal
discovery that starts over again, and so forth, is what we
would have to explore.
I do find it somewhat ironic that 3 years ago, when we
would have loved to have a discussion of necessary reforms
under both the law and procedure, there was no interest
whatsoever, and now that you are finding a little bit more
energy in seeking injunctive relief and----
Mr. Shays. Is that when this was a Democrat-controlled
Congress and a Democrat President?
Mr. Hiatt. Yes.
Mr. Shays. The irony is, I remember when I was in the
Statehouse and we wanted to repeal the dividends tax as
Republicans in the minority, and when we got into the majority,
we decided what we wanted to do was, we wanted to reduce the
sales tax on clothing and a whole host of other things, and we
forgot about the dividends tax. And as soon as we were defeated
and were now in the minority again, someone said, hey, the
first thing we should do is repeal the dividends tax.
This may be a parenthetical that really may seem like
another question mark not directly related to what we are
talking about, but when you talk about--let me just establish
this point. My understanding was that, basically, NLRB was
looking at collective bargaining units and dealt with employees
who were part of a collective bargaining unit. And that is not
correct. This is any employee?
Mr. Hiatt. That is right. It is not limited to collective
bargaining employees.
Mr. Shays. It tends to be individuals that are in
collective bargaining units?
Mr. Hiatt. Certainly a disproportionate number of
employees, of disputes, that come before the Board do involve
unionized employees, but the law itself is not so limited and
use of the Board is not so limited.
Mr. Shays. One of my theories about why you have a decline
in the enrollment in some cases in unions is, obviously,
smaller businesses. You have seen the greatest growth in the
public sector. What you didn't see on the bargaining table
sometimes happens through legislation. And now it seems to me
that a lot of the argument for why some people were going to
join unions you have put into law with so many protections. And
I am basically then leading to this question of your
description of what existed 60 years ago and what exists today.
I think it was you, Mr. Yager, or Mr. Joseph, was talking
about the fact that collective bargaining is a very changed
process and more institutionalized. I would like you to
elaborate a little bit more on that, and therefore--Mr. Yager,
was it you?
Mr. Yager. I can comment. I don't believe it was my
remarks.
Mr. Shays. I heard the argument--and I am sorry--that we
don't need the Board, and I guess I was thinking--I was going
to interrupt you, and say for me, if I could take it out of the
courts, I want it in the Board in a more informal process, tell
me what would be the effect if you didn't have the NLRB.
Mr. Joseph. Well, you have, as I described--I mean the
facts of life are that the majority of people today are working
for small businesses. Now if there is a work unit of 5 or 10,
what is happening in the general sense that--that to your
point, Mr. Chairman, a lot of the employee benefits that the
unions requested 10, 20, 30, 40 years ago are all standard
package today; there are obligations that every employer must
provide for the good of the individual, for the good of the
country, for the good of the economy; and, by and large, it's
competitive pressures in the global marketplace that determine
what any employer and employee end up with in terms of piece of
the pie after all is said and done.
The fact that you have a smaller percentage every year of
people who are actually covered by union agreements means that
if that continues over some period of time, you will continue
to have a minority legal system, a minority legal structure,
for a growing percentage of people in the workplace. And just
with regard to, by and large, union organizing or
representational or trying to do representational kinds of
activities, other disputes go on elsewhere, safety disputes are
elsewhere, affirmative action or sexual discrimination or
whatever.
So it goes to my general point. If every agency that
affects labor-management relations in the workplace is left to
itself and its respective oversight body to think just
singularly what to do with it, you are still going to end up
with a dysfunctional system where employees and employers are
still playing different games. And depending on what the nature
of the dispute is, it's a different process, a different
procedure, different hoops; it is a different kind of thing.
And I don't know why we couldn't, in the broadest possible
sense, you know, have some sort of intellectual, serious
discussion about how to put all the employment laws and
practices on the table and talk about what makes sense for the
21st century.
We don't have to have this confrontational atmosphere that
was rooted in the laws in the thirties. We are very much in a
competitive global world marketplace, and I think that not only
do employers know that but the average employee knows that,
whether they are in a union workplace or in a nonunion
workplace. And so against this, I think that the possibility of
having serious discussion about change is something that could
be framed in an apolitical way: What is the best way just to
restructure how we handle disputes and grievances in the 21st
century?
Mr. Shays. Mr. Yager, do you want to respond?
Mr. Yager. Well, I think just going back to the focus of
the hearing on NLRB, clearly the importance of the NLRB has
declined. Notwithstanding that there are charges filed from
nonunion settings, the vast majority of the time the law is
being applied in a situation where a union is either already in
place or is attempting to organize that setting.
To have this kind of elaborate structure and pay $170
million a year or whatever it costs to continue to fund the
agency at a time when you know interest in unionization is
declining, the law is pretty well fleshed out. By the way
responding to something Mr. Hiatt said, our disagreement with
them several years ago when they were proposing changes was
them using the law as an excuse for a failure of unionization.
We have always asserted that the basic principles of the
law are there and, really, unionization is a product of
employee choice. I would agree with you. I think to a large
extent they have legislated themselves out of existence by
providing things like family and medical leave, pension
protections under ERISA, Occupational Safety and Health Act.
These days, why would you need to go to a shop steward when, in
fact, most of the time you can take your case to either a
government official or to a plaintiff's attorney?
Mr. Shays. Mr. Hiatt, do you remember the question?
Mr. Hiatt. I believe so.
Mr. Shays. The whole issue is just, tell me why the Board--
I mean, I was expressing an opinion why I felt that so much is
in legislation now that one of the strong selling points
earlier on for unions--but that was really a side to the key
point, which is: Is the Board still really relevant?
Mr. Hiatt. Right. And I think if the Board--if the
functions of the Board weren't housed at the Board, they would
have to be housed somewhere else. One can devise--one can
imagine transferring them to the Federal courts and
transferring the costs of dispute resolution to private
parties, taking that $170 million that is right now spent on
the government and saying that private parties, including from
your lowest wage individual employee who's fired for trying to
join a union, to employers who believe that there is violence
on picket lines, should be paying the cost of that kind of
dispute resolution themselves.
And that is a fair debate to be having. But the notion that
that $170 million cost would go away and it wouldn't be needed
anymore because we are approaching the 21st century or because
there is no Labor Board, I just don't think there's any basis
for saying that.
Sure, there are many laws on the books, employment laws
that provide a statutory floor now, be it economic floor like
minimum wage and family and medical leave, or other kinds of
employment regulation. But there is still only one law that
governs the right of employees to join together to be able to
negotiate with their employers their basic working conditions,
and in some cases that may involve a desire to get paid more
than minimum wage.
And let's not forget that the National Labor Relations Act
and the Fair Labor Standards Act that set a minimum wage were
passed roughly at the same time. It was recognized that there
would be these minimum floor statutes but, at the same time,
that there was a proper place for workers to negotiate either
for better conditions than the minimum, the statutory minimums,
or for other things that are not addressed in the laws.
And this is, the National Labor Relations Act, with all its
faults--and we certainly agree that it could be improved--is
the only law that ensures some degree of democracy in the
workplace, some ability of workers to organize themselves
together to have a voice, an effective voice, with the
employer.
And I think in a time when you are seeing that one out of
every four organizing campaigns, at least one worker who takes
a lead role in trying to have a union is fired, according to
what is proven. I am not talking about charges that are
dismissed--and in many of those cases it is more than one who
is fired for trying to have a union--to think that there is no
longer a need for some kind of government regulation about
right to organize is just totally unrealistic.
Mr. Shays. One of the amazing things is that it's only been
recently that we allowed employees in this Congress to organize
and we are still debating the issue of whether our own staff
can. And whether you all agree with allowing for organization--
and I think you do to some measure--that is not the issue.
What is amazing to me is that Congress for so many years
was able to say that somebody else had to do it, but we didn't
have to. And it has been a very important thing for me to have
to pay my employee time-and-a-half who may not be in a
supervisory role. And in some cases I think that it has been
educational, because that has helped us want to look at time-
and-a-half off rather than time-and-a-half with pay.
So in some way it works to those who don't want to see
collective bargaining having us have to live under it. We say,
gosh, it is not as easy as you say. And some ways it works to
those who want to have collective bargaining to make sure that
we understand how the law works and that we live under it.
I am just going to ask one other question, and then, Cherri
Branson, I am going to invite you to ask some questions since I
am the only Member here.
I will say to you, Mr. Hiatt, that I wish I had--because I
kind of remember thinking about--I mean, I remember thinking a
little bit uncomfortable--it wasn't you, Mr. Hiatt.
Mr. Joseph. I apologize. You raised a question referring to
the Board as the Clinton administration Board or the Clinton
Board. I should believe that this--the NLRB is a true judicial
body that is supposed to be fair to all sides. Do you think
that Mr. Gould should be a little more careful in terms of how
he refers to his Board? Do you think it is inappropriate to
refer to it as the Clinton Board?
Mr. Hiatt. If you are asking me, I have to confess that
until Mr. Joseph pointed out that Mr. Gould had referred to it
as a Clinton Board, I hadn't noticed it. I assumed that he was
referring to the appointing officer, who in his case is
President Clinton.
I don't believe there is any evidence whatsoever that this
Board, this Labor Board, has acted any more at the behest of
the appointing administration than any other Board in our
history that I am aware of.
Mr. Shays. Since I didn't ask him, I feel a little--I am
acknowledging I really probably should have asked him to
respond. I hope his answer would be that we want you to know
what we have done since I have been in charge in terms of
moving cases or not moving cases. But I do think it probably is
unwise for him to make reference to a Board as being a Clinton
Board as opposed to a Reagan Board or a Bush Board.
Mr. Joseph. Mr. Shays, I have heard him use the phrase a
number of times. I see him wear it as a badge of honor.
Mr. Shays. People should be proud of the work that they
have done, but I am having to say that I will raise that
question with him in a letter, not making a big deal out of it
in terms of other than to just say that I think he may need to
rethink that.
Ms. Branson.
Ms. Branson. Thank you, Mr. Chairman. I just have one--
well, actually I have one.
Mr. Shays. You have about 5 minutes.
Ms. Branson. There was an idea earlier about sort of a
process where the Board could, or someone could, issue a letter
to kick loose a claim after a certain amount of time. I would
like to point out to the chairman that the EEOC does that and
their backlog has not been significantly reduced. As a matter
of fact, GAO has recently chided them for that.
For Mr. Hiatt, some people have said that the controversy
surrounding the Board has to do with the change in the post-
industrial service economy where competition is worldwide. Can
you tell me whether the Board--excuse me. Can you tell me
whether you believe that the economy plays a role in the
controversy that currently surrounds the Board?
Mr. Hiatt. I think it certainly does. There is no question.
There are a number of factors that have affected the
application of our labor laws and the labor movement and
employees' relationship with unions, and the global economy is
unquestionably one of those factors.
But I do not believe that that in any way makes either the
Labor Board or the act obsolete. What it does is, it changes
the kinds of issues and concerns that workers have. More often,
workers are seeking to negotiate on the threats that are posed
by international competition, and in some cases that means
holding up job security issues and plant closing issues and
issues like that that certainly are not covered by any of the
minimum floor statutes on the books, and, if anything, it just
makes it all the more important that workers who do want to
have some independent voice in the workplace and want
independent representation should have that opportunity. And
until we have a better system, I think it is irresponsible to
be advocating the destruction of the existing one.
Ms. Branson. Thank you, Mr. Chairman.
Mr. Shays. Do you want to comment?
Mr. Yager. If I could ask just a request.
Mr. Shays. Not on the question? Just to ask--are you
responding to the question just asked?
Mr. Yager. No, I'm not. I am sorry.
Mr. Shays. I am going to invite any of the three of you to
respond, if there was a question that you wished I had asked
you that you wanted to discuss. And if there is any closing
comment you want to make.
And if you want to start, Mr. Yager, you may.
Mr. Yager. Yeah, I guess I would just go back to the
original point. Clearly, you have got a law that was written 60
years ago and it is a struggle to keep it up with the changing
economy. Part of the problem that we have with the Board is
that it has gotten very calcified and very myopic. There is an
inability on the Board to look at the law in view of the
changes. We saw that with the Electromation case that treats
employee involvement committees the same way they treat
illegal, sham company unions.
You are more likely to get administration of the act and
enforcement of the act with a broader perspective than if you
do start looking more to the courts, which, as I say, the
parties are inclined to do.
I would like to ask--I didn't want to take the time of the
committee to respond to each of the points that Mr. Hiatt made
with some of the cases that we raised in our book and the
statistics.
Mr. Shays. The record is open if you are wondering if you
can respond to any comments made.
Mr. Yager. I would like to do that in writing. I just
didn't want silence to be viewed as assent.
Mr. Shays. No, it isn't. It is actually welcomed.
Mr. Yager. I thought it probably was. That is why I
decided.
Mr. Shays. Only because of the time.
The record is open Friday, Monday, and Tuesday? So at the
end of Tuesday, you need to respond.
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Mr. Shays. Mr. Joseph.
Mr. Joseph. Just appreciate the opportunity to be here, and
we appreciate your willingness to look into the Board.
Mr. Shays. Well, we are happy to look into this issue and
the Board. And we are troubled by some things we see and know
that it is a factor of many things, but we are going to do our
job and look at this Board and see how we can make it work
better.
Mr. Hiatt.
Mr. Hiatt. Thank you, Mr. Chairman. I feel like I am in a
``Jeopardy'' situation that I have to think, you know, what
answer I want to give. So I have to tell you what the question
is that I wish you had asked.
I guess the only other point that I would like to make is
that I think when we have these kinds of hearings--and this has
certainly been a great deal less confrontational than some of
the other hearings on the subject of the NLRB in the past
couple of years. But when we do have these kinds of hearings,
we lose track of the fact that some 95 to 98 percent of the
functions that the Labor Board does do on a day-in-day-out
basis on behalf of individual workers, unions and employers is
not really in controversy at all.
One of the points that Mr. Yager made in his testimony, I
believe at one point, is that a current Republican member of
the Labor Board has agreed with the Democratic members 97
percent of the cases, and that is probably not atypical. It may
be a little higher, because this three-member Board has not
been taking very many controversial cases lately. But even at
times when there are a number of controversial cases, the
percentage of cases where the Board members who are appointed
by Republicans and Democrats and where the business community
and labor community would see the outcome exactly the same way
and the procedures exactly the same way is extraordinarily
high.
And I think it is important to not lose sight of that,
because the average worker on the average day has a great deal
at stake in just having the regular functions of the Labor
Board at their disposal. And I appreciate this opportunity, and
we would be more than happy to work with you on any followup
where you give us that opportunity.
Mr. Shays. We will definitely have followup, and we look
forward to working with all of you and thank you again for
spending basically your whole day on this hearing. And thank
you very much.
And at this time, we adjourn.
[Whereupon, at 4:53 p.m., the subcommittee was adjourned.]