THE FUTURE OF THE NLRB: WHAT NOEL CANNING VS. NLRB MEANS FOR WORKERS, EMPLOYERS, AND UNIONS HEARING BEFORE THE SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS COMMITTEE ON EDUCATION AND THE WORKFORCE U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS FIRST SESSION HEARING HELD IN WASHINGTON, DC, FEBRUARY 13, 2013 Serial No. 113–2 Printed for the use of the Committee on Education and the Workforce ( Available via the World Wide Web: www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education or Committee address: http://edworkforce.house.gov U.S. GOVERNMENT PRINTING OFFICE 78–694 PDF WASHINGTON : 2014 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) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 COMMITTEE ON EDUCATION AND THE WORKFORCE JOHN KLINE, Minnesota, Chairman Thomas E. Petri, Wisconsin George Miller, California, Howard P. ‘‘Buck’’ McKeon, California Senior Democratic Member Joe Wilson, South Carolina Robert E. Andrews, New Jersey Virginia Foxx, North Carolina Robert C. ‘‘Bobby’’ Scott, Virginia Tom Price, Georgia Rube´n Hinojosa, Texas Kenny Marchant, Texas Carolyn McCarthy, New York Duncan Hunter, California John F. Tierney, Massachusetts David P. Roe, Tennessee Rush Holt, New Jersey Glenn Thompson, Pennsylvania Susan A. Davis, California Tim Walberg, Michigan Rau´ l M. Grijalva, Arizona Matt Salmon, Arizona Timothy H. Bishop, New York Brett Guthrie, Kentucky David Loebsack, Iowa Scott DesJarlais, Tennessee Joe Courtney, Connecticut Todd Rokita, Indiana Marcia L. Fudge, Ohio Larry Bucshon, Indiana Jared Polis, Colorado Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan, Lou Barletta, Pennsylvania Northern Mariana Islands Martha Roby, Alabama John A. Yarmuth, Kentucky Joseph J. Heck, Nevada Frederica S. Wilson, Florida Susan W. Brooks, Indiana Suzanne Bonamici, Oregon Richard Hudson, North Carolina Luke Messer, Indiana Barrett Karr, Staff Director Jody Calemine, Minority Staff Director SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS DAVID P. ROE, Tennessee, Chairman Joe Wilson, South Carolina Robert E. Andrews, New Jersey, Tom Price, Georgia Ranking Member Kenny Marchant, Texas Rush Holt, New Jersey Matt Salmon, Arizona David Loebsack, Iowa Brett Guthrie, Kentucky Robert C. ‘‘Bobby’’ Scott, Virginia Scott DesJarlais, Tennessee Rube´n Hinojosa, Texas Larry Bucshon, Indiana John F. Tierney, Massachusetts Trey Gowdy, South Carolina Rau´ l M. Grijalva, Arizona Lou Barletta, Pennsylvania Joe Courtney, Connecticut Martha Roby, Alabama Jared Polis, Colorado Joseph J. Heck, Nevada John A. Yarmuth, Kentucky Susan W. Brooks, Indiana Frederica S. Wilson, Florida Luke Messer, Indiana (II) CONTENTS Page Hearing held on February 13, 2013 ....................................................................... 1 Statement of Members: Andrews, Hon. Robert E., ranking member, Subcommittee on Health, Employment, Labor, and Pensions .............................................................. 4 Roe, Hon. David P., Chairman, Subcommittee on Health, Employment, Labor, and Pensions ..................................................................................... 1 Prepared statement of ............................................................................... 3 Statement of Witnesses: King, G. Roger, of counsel, Jones Day, on behalf of the U.S. Chamber of Commerce and Coalition for a Democratic Workplace .......................... 33 Prepared statement of ............................................................................... 34 LaJeunesse, Raymond J., Jr., vice president & legal director, National Right to Work Legal Defense Foundation, Inc. .......................................... 12 Prepared statement of ............................................................................... 14 Lorber, Lawrence Z., partner, Proskauer Rose LLP ...................................... 6 Prepared statement of ............................................................................... 8 Reynolds, N. Elizabeth, member of the firm, Allison, Slutsky and Ken- nedy, P.C. ....................................................................................................... 19 Prepared statement of ............................................................................... 21 Additional Submissions: Mr. King, attachments to prepared statement, Internet address to ............ 44 Mr. LaJeunesse, follow-up letter dated Feb. 19, 2013 ................................... 63 (III) THE FUTURE OF THE NLRB: WHAT NOEL CANNING VS. NLRB MEANS FOR WORKERS, EMPLOYERS, AND UNIONS Wednesday, February 13, 2013 U.S. House of Representatives Subcommittee on Health, Employment, Labor, and Pensions Committee on Education and the Workforce Washington, DC The subcommittee met, pursuant to call, at 10:06 a.m., in room 2175, Rayburn House Office Building, Hon. David P. Roe [chairman of the subcommittee] presiding. Present: Representatives Roe, Guthrie, DesJarlais, Bucshon, Gowdy, Brooks, Andrews, Holt, Scott, Tierney, Courtney, Polis, and Wilson. Also present: Representative Kline. Staff present: Katherine Bathgate, Deputy Press Secretary; Owen Caine, Legislative Assistant; Molly Conway, Professional Staff Member; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel; Barrett Karr, Staff Director; Nancy Locke, Chief Clerk/As- sistant to the General Counsel; Brian Newell, Deputy Communica- tions Director; Krisann Pearce, General Counsel; Nicole Sizemore, Deputy Press Secretary; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Alexa Turner, Staff Assistant; Aaron Albright, Minority Communications Director for Labor; Mary Al- fred, Minority Fellow, Labor; Tylease Alli, Minority Clerk; John D’Elia, Minority Labor Policy Associate; Brian Levin, Minority Dep- uty Press Secretary/New Media Press Coordinator; Celine McNicholas, Minority Senior Labor Counsel; Richard Miller, Minor- ity Senior Labor Policy Advisor; Megan O’Reilly, Minority General Counsel; Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy Director; and Michael Zola, Minority Deputy Staff Director. Chairman ROE. A quorum being present, Subcommittee on Health, Employment, Labor, and Pensions will come to order. And we have held up just a little bit because we have got one of our witnesses hung up in a line outside trying to get in. So, we will— but we will get started. Good morning and welcome to the first hearing of the Health, Employment, Labor, and Pensions Subcommittee in the new Con- gress. I would like to welcome our members and thank our wit- nesses for being with us today. (1) 2 During the 112th Congress oversight of the National Labor Rela- tions Board was a leading priority for this committee. Whether through hearings, letters, or legislation, we have tried to ensure the rights of workers and their employers are protected. I realize this reveals some deep differences on the committee. However, as a member of Congress we are obligated to act when- ever an agency may be harming our job creators and workforce. And we will be neglecting our duty if we simply looked the other way. The power of the board affects almost every private workplace. Rest assured, the committee will continue to keep a close eye on the NLRB and do what is necessary to promote the best interests of the American people. This hearing is part of that effort. The board has recently taken steps to skew the balance of power even further toward union leaders, and such action demands our atten- tion. For example, the board is making it increasingly difficult for em- ployers to investigate possible misconduct and employee com- plaints. Whether it is a worksite accident, allegation of theft, or other charge of wrongdoing, employers must be able to gather the facts and hold employees accountable. The safety and security of the workplace depend on it. In Banner Health and Piedmont Gardens, the board restricted the ability to keep internal investigations confidential while allow- ing unions to obtain sensitive statements provided by witnesses. To conduct a confidential investigation, employers will have to qualify with one of several narrow exceptions dictated by the board. Inter- nal investigations will be stymied, business costs will rise, and em- ployees will be harmed as potentially dangerous and illegal behav- ior is left unresolved. The board has also begun chipping away at the right of workers not to fund union lobbying. In 1988, the U.S. Supreme Court held in Communications Workers v. Beck that workers forced to pay union dues do not have to finance a union’s political activities. The board’s Kent Hospital decision walks further away from this stand- ard, forcing workers to cover lobbying expenses unions claim re- lated to collective bargaining. The rights of workers, as well as the opinion of the nation’s high- est court, are being eviscerated by an activist labor board. Today’s NLRB will go to great lengths to undermine employers, marginalize workers, and empower Big Labor. The board has even ruled that policies promoting a courteous and friendly work envi- ronment can run afoul of the law. While the board’s pro-union agenda is troubling, the fate of these and other decisions are now in question. A year ago, President Obama installed three recess appointments to the board while Con- gress was meeting regularly in pro forma session. A U.S. federal