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National Labor Relations Board Represen- Tation Elections and Initial Collective Bargaining Agreements: Safeguarding Workers’ Rights? S. HRG. 110–420 NATIONAL LABOR RELATIONS BOARD REPRESEN- TATION ELECTIONS AND INITIAL COLLECTIVE BARGAINING AGREEMENTS: SAFEGUARDING WORKERS’ RIGHTS? HEARING BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON APPROPRIATIONS UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS SECOND SESSION SPECIAL HEARING APRIL 2, 2008—WASHINGTON, DC Printed for the use of the Committee on Appropriations ( Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html U.S. GOVERNMENT PRINTING OFFICE 42–856 PDF WASHINGTON : 2008 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001 COMMITTEE ON APPROPRIATIONS ROBERT C. BYRD, West Virginia, Chairman DANIEL K. INOUYE, Hawaii THAD COCHRAN, Mississippi PATRICK J. LEAHY, Vermont TED STEVENS, Alaska TOM HARKIN, Iowa ARLEN SPECTER, Pennsylvania BARBARA A. MIKULSKI, Maryland PETE V. DOMENICI, New Mexico HERB KOHL, Wisconsin CHRISTOPHER S. BOND, Missouri PATTY MURRAY, Washington MITCH MCCONNELL, Kentucky BYRON L. DORGAN, North Dakota RICHARD C. SHELBY, Alabama DIANNE FEINSTEIN, California JUDD GREGG, New Hampshire RICHARD J. DURBIN, Illinois ROBERT F. BENNETT, Utah TIM JOHNSON, South Dakota LARRY CRAIG, Idaho MARY L. LANDRIEU, Louisiana KAY BAILEY HUTCHISON, Texas JACK REED, Rhode Island SAM BROWNBACK, Kansas FRANK R. LAUTENBERG, New Jersey WAYNE ALLARD, Colorado BEN NELSON, Nebraska LAMAR ALEXANDER, Tennessee CHARLES KIEFFER, Staff Director BRUCE EVANS, Minority Staff Director SUBCOMMITTEE ON DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES TOM HARKIN, Iowa, Chairman DANIEL K. INOUYE, Hawaii ARLEN SPECTER, Pennsylvania HERB KOHL, Wisconsin THAD COCHRAN, Mississippi PATTY MURRAY, Washington JUDD GREGG, New Hampshire MARY L. LANDRIEU, Louisiana LARRY CRAIG, Idaho RICHARD J. DURBIN, Illinois KAY BAILEY HUTCHISON, Texas JACK REED, Rhode Island TED STEVENS, Alaska FRANK R. LAUTENBERG, New Jersey RICHARD C. SHELBY, Alabama ROBERT C. BYRD, West Virginia, (ex officio) Professional Staff ELLEN MURRAY ERIK FATEMI MARK LAISCH ADRIENNE HALLETT LISA BERNHARDT BETTILOU TAYLOR (Minority) SUDIP SHRIKANT PARIKH (Minority) Administrative Support TERI CURTIN JEFF KRATZ (Minority) (II) CONTENTS Page Opening statement of Senator Tom Harkin .......................................................... 1 Opening statement of Senator Arlen Specter ........................................................ 2 Statement of Hon. Peter C. Schaumber, Chairman, National Labor Relations Board ..................................................................................................................... 13 Prepared statement .......................................................................................... 20 Statement of Hon. Wilma B. Liebman, member, National Labor Relations Board ..................................................................................................................... 33 Prepared statement .......................................................................................... 34 Statement of Gordon Lafer, Ph.D., associate professor, Labor Education and Research Center, University of Oregon, Eugene, Oregon ................................. 48 Prepared statement .......................................................................................... 51 Statement of John N. Raudabaugh, Esq., partner, Baker & McKenzie, LLP, Chicago, Illinois .................................................................................................... 56 Prepared statement .......................................................................................... 58 Question submitted by Senator Tom Harkin ........................................................ 72 Questions submitted by Senator Arlen Specter .................................................... 73 (III) NATIONAL LABOR RELATIONS BOARD REP- RESENTATION ELECTIONS AND INITIAL COLLECTIVE BARGAINING AGREEMENTS: SAFEGUARDING WORKERS’ RIGHTS? WEDNESDAY, APRIL 2, 2008 U.S. SENATE, SUBCOMMITTEE ON LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND RELATED AGENCIES, COMMITTEE ON APPROPRIATIONS, Washington, DC. The subcommittee met at 10:30 a.m., in room SD–138, Dirksen Senate Office Building, Hon. Tom Harkin (chairman) presiding. Present: Senators Harkin and Specter. OPENING STATEMENT OF SENATOR TOM HARKIN Senator HARKIN. This committee will come to order. Senator Specter, our ranking member, had spoken to me about having this hearing and we talked about it and discussed it. He re- quested that we have this hearing and I’m more than happy to oblige because we have traded this gavel many times over the last several years when he was chairman and I was ranking member and I’d request a hearing, he was always happy to oblige me on topics that interested me and that’s how we operated in this sub- committee. So, today, we’re here to talk about an issue that’s important to us both. We want to make sure that the NLRB is doing everything in its power to make sure elections are fair and we get a full and accurate picture of the barriers that exist to union organizing. I believe strongly that when workers join together and act collec- tively, they can achieve economic gains and worker safety that they would not be able to get if they negotiated individually. History tells us many things. Union members were on the frontlines fighting for the 40-hour work week. It wasn’t manage- ment, it was labor that fought for that. Paid vacations. It wasn’t management, it was unions that fought for that. Minimum wage. It wasn’t management, it was unions who fought for that. Em- ployer-provided health insurance and pensions. All of this was led by organized labor in passing legislation to ensure fair and safe workplaces. They also fought to champion Social Security and Medicare and the Family and Medical Leave Act. So many of the things that we just take for granted today, we take for granted that we have paid vacations, we take for granted that we have pension programs, we (1) 2 take for granted that we have sick leave and things like that, but they weren’t always so, and we owe a great debt to organized labor for the struggles they fought to bring this to the American work- place. Many of these which workers around the world would like to have in their workplaces. More than 47 million Americans lack health insurance. That’s in- cluding about 251,000 of my fellow Iowans. Even those who get it find it covers less and less. This should not be happening. When productivity rises, everyone should see a fair share of the gain, but in the past several years, increasing productivity has gone hand in hand with a growing wage gap. According to the non-partisan Congressional Research Service, adjusted for inflation, average worker pay rose 8 percent from 1995 to 2005. Average. But the median CEO pay at the 350 largest firms rose a 150 percent over the same period. In my home State of Iowa, real median household income fell by 3.4 percent in that same 10-year period, from 1995 to 2005, at the same time that productivity increased. So, we get this productivity increased, median family income went down. What that tells me is that workers are working more and more, they’re working harder, they’re producing better, but they’re not getting their fair share of the increase. Is it a coincidence that all of these injustices are happening at a time when union membership has declined? As memberships de- cline, wages have stagnated. The numbers of uninsured have risen and private companies have been allowed to default on their pen- sions, threatening the retirement security of millions of Americans. It’s clear to me that in order to rebuild economic security for the middle class of America, we must rebuild strong and vibrant unions and to rebuild strong unions, we must reduce the unfair barriers to organizing. So this morning, we’ll hear from experts today about what sorts of barriers exist, from unfair labor practices in petition drives to worker intimidation during the elections. We’ll hear testimony from Board members who oversee the election process. We have a nota- ble academic who’s just published a report on elections, and we have a respected attorney who has represented employers in orga- nizing drives. In the interests of full disclosure, I’ll openly tell you that I’m a strong supporter of the Employee Free Choice Act. I have sup- ported it. I know the Board members can’t comment on legislation, but frankly, Iowans expect me to comment on legislation, to earn my keep, as I might say. With that, I look forward to hearing your testimony and I now will turn to my ranking member, Senator Specter, for his opening remarks. OPENING STATEMENT OF SENATOR ARLEN SPECTER Senator SPECTER. Thank you, Mr. Chairman, and I thank you for a very close working relationship for many years, and as you have noted, we have changed party control but that has not shifted at all the way this subcommittee has functioned. 3 We’ve been able to work on a close bipartisan basis, and I think we have set a standard which other committees might be well ad- vised to follow. Senator HARKIN. I agree. Senator SPECTER. When the gavel has shifted, we use the expres- sion it’s been a seamless shift of the gavel. This is an important hearing. The National Labor Relations Act at its core is meant to protect the interests of workers. When the Senate initially debated the bill in 1935, Senator Robert Wagner noted in drafting
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