Ideology Theater: Congressional Hearing on the NLRB

Chris Bowers, who blogs at the progressive political site, OpenLeft, coverd the House and Senate hearing on the National Labor Relations Board for us and sends the following report. 

Yesterday, I attended a joint hearing of the House Subcommittee on Health, Employment, Labor and Pensions and the Senate Subcommittee on Employment and Workplace Safety focusing on the impact of recent decisions by the National Labor Relations Board (NLRB) and its impact on workers’ rights.

The AFL-CIO paid for my travel to the hearing, but this is an issue close to me that I would have been glad to attend anyway. You see, the entire reason I ended up as an unemployed blogger more than three years ago is because an NLRB ruling in 2004 placed significant restrictions on the collective bargaining rights of graduate student employees of private universities. My previous job had been working with the AFL-CIO to organize graduate employees at the University of Illinois at Chicago, but my position was cut after new organizing possibilities dried up with that ruling.

At the start of the hearing, straying somewhat from his official testimony, Rob Andrews, chairman of the House subcommittee, stated that he sought to discover if the decisions at the NLRB in recent years were “born out of an ideological agenda.”

Ninety minutes later, toward the end of the first session of the hearing, Sen. Edward Kennedy asked Robert Battista, NLRB chairman, what he thought about the overall impact of the last five years of rulings by the NLRB had been. Battista replied:

The pendulum has moved from the left to the right.

I have to admit, I was surprised that Battista would offer such a blunt, “yes” response to Andrews’s opening question. By his own admission, Battista has engaged in an ideological agenda at the NLRB, seeking to correct what he saw as a left-wing imbalance of previous rulings. One does not swing the pendulum from “the left to the right” without intentionally pursuing an overtly ideological agenda.

Overtly pursuing right-wing ideological agendas is nothing new to Bush administration appointees, as we have seen in countless agencies and judicial appointments. What makes the ideological agenda of the NLRB stand out is its two-pronged strategy of dismantling the purpose and function of the entire agency. The NLRB was founded 70 ago to promote collective bargaining and settle employment disputes as part of the National Labor Relations Act.

First, Battista openly declared in the hearing that the purpose of the NLRB was revised under the 1947 Taft-Hartley Act to ensure “employee free choice” rather than the promotion of collective bargaining. In practice, “employee free choice” means consistently favoring the employer in cases before the board to such a degree that unions and workers cease to avail themselves of the board in order to settle workplace disputes. Over the past 10 years, there has been a 46 percent decline in cases before the board, including a 26 percent decline over the past two years alone.

This isn’t because, as one member of the hearing joked, a wave of labor peace had broken out in America, but rather because unions no longer have confidence the NLRB will do anything except rule in favor of management. In a nutshell, that is the core ideological strategy of the current NLRB: First, change the purpose of the agency, and then consistently rule in a manner so overtly pro-employer that few people avail themselves of it.

Another witness at the hearing, NLRB member Wilma Liebman, who frequently dissents from the majority rulings of the current NLRB, described herself as a “strict constructionist, or originalist,” in her interpretation of the National Labor Relations Act. At one point in the hearing, Rep. Tom Price (R-Ga.) asked Liebman why she opposed freedom, and implied that she was a Communist.  

Undaunted, she noted that even the purported ideological goal of “employee free choice” claimed by Battista does not accurately describe the collective impact of the rulings of the board. For example, she noted that while employers are not required to post notices in nonunionized workplaces informing employees on how to form a union, employers in unionized workplaces are required to post notices informing employees how to decertify unions.  In her testimony, Liebman stated: 

Now, when an employer agrees to voluntarily recognize a union, after the union has demonstrated majority support, it must post a notice informing employees that it has done so and telling them how they can get rid of the union. That posting opens a 45-day window period, during which employees—provided they marshal 30 per cent support among their co-workers—may petition the board for an election to decertify the union. 

When questioned about this, Battista declared it was analogous to the moment in a wedding when the minister asks, “If anyone should see why these two people should not be joined, speak now or forever hold your peace.” To the amusement of many in the room, Liebman astutely pointed out that in a wedding, such a question was not left open for a period of 45 days. 

With the tide clearly turning against the Bush National Labor Relations Board in the hearing, John Kline, ranking Republican on the House subcommittee, lamented about the proportion of Democratic and Republican witnesses called to testify. He noted that Democrats had called three witnesses for every one witness that Republicans had called. However, he also noted that this 3–1 practice had been established during Republican control of the committee, and thought now that perhaps that imbalance was a mistake.  

It was yet another moment in the hearing when the overt imbalance of the previous five years had been brought into the open. Perhaps his lament was sincere, and Kline will see the light not only on previous imbalances, but on future ones concerned with the NLRB. However, since he repeatedly claimed to the gathered audience, via prepared statements, that the hearing was “political theater,” I for one am not holding my breath. If this was merely political theater, at this point we certainly need different actors. Or, at the very least, we need actors who are willing to play their assigned roles, and promote collective bargaining rights. 

Erin Johansson has more on the hearing here.  

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