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Hearing into NLRB proposed rule change highlights Congressional games over labor law

July 8th, 2011  |  Matt Pavich

A hearing held on July 7, 2011, by the US House Committee on Education and the Workforce into the nature and impact of the NLRB’s proposed election rule changes did little to elucidate the potential ramifications of the rule, but did a great deal to expose the nature of its opponents.

As is his wont, Committee Chairman John Kline (R-Minn) set the tone for the hearing in his opening remarks. As is typical for the Chairman, he blistered the “activist” NLRB for rewriting the rules “to further tilt the playing field in favor of union interests.” Kline noted that unions currently win over 60 percent of elections, but failed to note that, in at least 35 percent of petitions, unions drop the matter before an election can be held. Continuing the theme of his recent attacks against the Board, Kline said that the proposed rule “is part of an ongoing effort to promote a culture of union favoritism that is creating greater uncertainty among America’s job creators.” That charge would come as welcome news to labor unions that have received little assistance from the Administration, which has presided over the demise of Labor’s cherished Employee Free Choice Act.

Former NLRB Member Peter Schaumber spoke next. Schaumber, who notably comprised half of the two-member panel that sought to issue rulings when Congressional inaction prevented a full Board from being seated, contended that “the majority has made no effort to demonstrate the necessity for so substantially shortening the period of time for a Board election.” Schaumber argued that the only reason for the “radical” change was to tilt the process in favor of organized labor” and suggested that the rule shows how willing the Board is to overturn the law. When pressed about the habit of the Bush Board, of which he was a member, to overturn precedential decisions, Schaumber could only insist that it left major decisions untouched.

After Schaumber, Larry Getts, an employee of Dana Corp spoke about his experiences with union elections. Getts took issue with the profanity used by the union organizer who came to his facility, with the presence of union organizers during the campaign, and with the fact that the neutrality agreement between the union and the employer prevented the employer from presenting its views. Getts’ testimony did not offer any substantive insights into either the proposed rule, or the current system. However, Getts’ complaint that a union organizer called the employees at home was picked up on throughout the hearing by Republican members of the Committee.

Michael Lotito, an attorney at Jackson Lewis, expressed concerns that, absent the ability of employers to communicate, employees won’t get enough information regarding the unions. Lotito insisted that he had no anti-labor bias, but Representative John Tierney (D-Mass) repeatedly questioned the impartiality of Lotito’s testimony. Tierney noted that Jackson Lewis’ website brags about its ability to delay elections and cited a series of documents from Jackson Lewis discussing how employers can slow and delay unionization efforts. Lotito could only insist that all was not as it seemed and that his work for his firm on behalf of employers in no way caused him to be impartial.

In the highly combative hearing, one Congressman stood out for his rhetoric. Representative Trey Gowdy (R-SC) referred to the NLRA as a “wealth-redistribution statute,” repeatedly alluded to the Boeing dispute, while insisting that he didn’t mention the name and suggested that the underlying dispute is between Washington State and South Carolina. Gowdy compared the statements that led to the complaint to an individual saying that he would kill someone, suggesting that merely saying the words is not a crime. Gowdy, a trained attorney, misrepresented the essence of the complaint, which is that statements by a Boeing executive that a production line was placed in a non-union facility was retaliation for protected activity that chilled the employees’ exercise of rights under the law. In a hearing that was high on inflammatory rhetoric and short on reasoned statements, Gowdy presented a master-class on how to demagogue the issue. In this writer’s view, Gowdy poorly served his profession and his office with his statements.

Professor Kenneth Dau-Schmidt, one of the proposal’s supporters, may have spoken for many in the audience when he bemoaned the Committee’s focus on the NLRB to the exclusion of hearings on jobs. “I can’t believe you’re spending your time on this.”