The House Subcommittee on Health, Employment, Labor and Pensions held a hearing on Friday to discuss emerging trends at the National Labor Relations Board. Panelists examined several recent Board decisions and General Counsel initiatives that have sparked controversy in recent months and offered differing opinions as to whether the agency has acted within the scope of its authority. In his opening statement, Subcommittee Chairman David P. Roe (R-TN) set the tone of the hearing, claiming that “the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach.”

One witness at the hearing criticized (pdf) the role that organized labor has been playing in recent years, claiming that the bargaining model of the National Labor Relations Act, where each side’s leverage stems from economic damage it may inflict on the other, “places unions and companies in a relay race, and all too often in the United States, the union’s incentive is to use the baton to injure or maim the employer, instead of running the race against international competitors.”

Witnesses identified specific Board decisions that have raised questions about “the legislative policy choices built into the NLRA,” including the series of “bannering” cases, Dana Corp., and New York University.

Former NLRB General Counsel Arthur F. Rosenfeld discussed (pdf) recent GC initiatives that he believes represent a negative change from current labor policy. Rosenfeld explained that the GC’s influence “is exercised subtly, e.g., through enhanced enforcement of a certain class of cases, or through instructions to the Regional Directors, or in the way a case is presented, or even in performance evaluations of General Counsel Office employees.” In his testimony, Rosenfeld criticized the following GC memorandums:

• GC 11-04, which states that all settlement agreements—including both informal and compliance settlements—should include certain default language. Rosenfeld testified that this initiative has the potential to adversely impact the current high settlement rate.
• GC 10-07, issued in 2010, which is designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns. As Rosenfeld points out, the directive requires the GC “to personally review all pending organizing discharge cases found to have merit to decide whether 10(j) authorization should be sought from the Board. . . . Devoting scarce resources to a problem that may not be critical means that resources will be shifted from other issues, perhaps such as illegal secondary boycotts.”
• GC 11-01 directs all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. According to Rosenfeld, both GC 11-01 and GC 10-07 are directed only at employer misconduct.
• GC 11-05 changes the Board’s arbitration deferral policy. As Rosenfeld explains, the “Acting General Counsel seeks to revise the ground rules in all deferral cases, including pre-arbitral deferral, where an employer is alleged to have violated a collective bargaining agreement provision, and to have committed an unfair labor practice. If adopted, I fear that there will be fewer deferrals, greater expenditure of agency resources, and diminution in achievement of the Congressional goal of promoting industrial peace and stability.”

In testimony offered to support recent Board actions, Law Professor Cynthia Estlund claimed (pdf) that the Board’s “recent proposals and actions are modest by any measure, and well within both the boundaries of the Board's statutory authority and the traditional scope within which past Boards and General Counsels have exercised that authority.”

The hearing also focused attention on the Board’s proposed rule that would require all private sector employers covered by the NLRA to post a notice informing employees of their NLRA rights. As noted by several witnesses, the NLRA does not contain a provision requiring such notice-posting, which has raised questions about the statutory authority of the NLRB to issue the rule. The content of the notice itself also was a source of debate among both Members of the Committee and the witnesses.

After the close of the hearing, NLRB Chairman Wilma Liebman issued the following statement:

The most significant ‘emerging trend’ at the NLRB is that the agency is coming back to life after a long period of dormancy. After more than two years without a quorum due to chronic vacancies, the Board now has four members and has been tackling many of the difficult cases that languished for years. We are actively seeking input from practitioners and from the public, by inviting briefs for important cases that are under review, and by using the process of federal rulemaking to seek comments on one potential rule change intended to inform American employees of their statutory workplace rights.

Liebman’s statement noted that while it is “unfortunate” that the Board’s actions are “often viewed through a partisan lens,” such has been the case “for decades.” She concluded by saying she looked forward to working with Congress to effectuate the agency’s mission and welcomes a “serious dialogue” about the issues.

An archived webcast of the House Subcommittee hearing can be found here.