[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]






                                 

 
                 NLRB OVERREACH: TRAMPLING ON WORKERS'
                    RIGHTS AND FOSTERING UNFAIRNESS

=======================================================================

                                HEARING

                               Before The

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                                 of the

                COMMITTEE ON EDUCATION AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             SECOND SESSION

                               __________



             HEARING HELD IN WASHINGTON, DC, JUNE 12, 2024

                               __________

                           Serial No. 118-54

                               __________

  Printed for the use of the Committee on Education and the Workforce
  
  
  
  [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

  






        Available via: edworkforce.house.gov or www.govinfo.gov
        
        
        
        
                                 ______
	
	             U.S. GOVERNMENT PUBLISHING OFFICE 
           57-222PDF           WASHINGTON : 2024
	 
	 
 
        
        
        
        
        
                COMMITTEE ON EDUCATION AND THE WORKFORCE

               VIRGINIA FOXX, North Carolina, Chairwoman

JOE WILSON, South Carolina           ROBERT C. ``BOBBY'' SCOTT, 
GLENN THOMPSON, Pennsylvania             Virginia,
TIM WALBERG, Michigan                  Ranking Member
GLENN GROTHMAN, Wisconsin            RAUL M. GRIJALVA, Arizona
ELISE M. STEFANIK, New York          JOE COURTNEY, Connecticut
RICK W. ALLEN, Georgia               GREGORIO KILILI CAMACHO SABLAN,
JIM BANKS, Indiana                     Northern Mariana Islands
JAMES COMER, Kentucky                FREDERICA S. WILSON, Florida
LLOYD SMUCKER, Pennsylvania          SUZANNE BONAMICI, Oregon
BURGESS OWENS, Utah                  MARK TAKANO, California
BOB GOOD, Virginia                   ALMA S. ADAMS, North Carolina
LISA McCLAIN, Michigan               MARK DeSAULNIER, California
MARY MILLER, Illinois                DONALD NORCROSS, New Jersey
MICHELLE STEEL, California           PRAMILA JAYAPAL, Washington
RON ESTES, Kansas                    SUSAN WILD, Pennsylvania
JULIA LETLOW, Louisiana              LUCY McBATH, Georgia
KEVIN KILEY, California              JAHANA HAYES, Connecticut
AARON BEAN, Florida                  ILHAN OMAR, Minnesota
ERIC BURLISON, Missouri              HALEY M. STEVENS, Michigan
NATHANIEL MORAN, Texas               TERESA LEGER FERNANDEZ, New Mexico
LORI CHAVEZ-DeREMER, Oregon          KATHY MANNING, North Carolina
BRANDON WILLIAMS, New York           FRANK J. MRVAN, Indiana
ERIN HOUCHIN, Indiana                JAMAAL BOWMAN, New York
VACANCY

                       Cyrus Artz, Staff Director
              Veronique Pluviose, Minority Staff Director
                                 ------                                

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                      BOB GOOD, Virginia, Chairman

JOE WILSON, South Carolina           MARK DeSAULNIER, California
TIM WALBERG, Michigan                  Ranking Member
RICK ALLEN, Georgia                  JOE COURTNEY, Connecticut
JIM BANKS, Indiana                   DONALD NORCROSS, New Jersey
JAMES COMER, Kentucky                SUSAN WILD, Pennsylvania
LLOYD SMUCKER, Pennsylvania          FRANK J. MRVAN, Indiana
MICHELLE STEEL, California           PRAMILA, JAYAPAL, Washington
AARON BEAN, Florida                  LUCY McBATH, Georgia
ERIC BURLISON, Missouri              JAHANA HAYES, Connecticut
LORI CHAVEZ-DeREMER, Oregon          ILHAN OMAR, Minnesota
ERIN HOUCHIN, Indiana                KATHY MANNING, North Carolina
                         C  O  N  T  E  N  T  S

                              ----------                              
                                                                   Page

Hearing held on June 12, 2024....................................     1

                           OPENING STATEMENTS

    Good, Hon. Bob, Chairman, Subcommittee on Health, Employment, 
      Labor, and Pensions........................................     1
        Prepared statement of....................................     3
    DeSaulnier, Hon. Mark, Ranking Member, Subcommittee on 
      Health, Employment, Labor, and Pensions....................     4
        Prepared statement of....................................     5

                               WITNESSES

    Ring, John F., Partner, Morgan, Lewis & Bockius LLP..........     7
        Prepared statement of....................................    10
    Stock, Alice B., Of Counsel, Bond Schoeneck & King, PLLC.....    22
        Prepared statement of....................................    24
    Goldsmith, Eileen B., Partner, Altshuler Berzon LLP..........    49
        Prepared statement of....................................    51
    Seaton, Douglas P., President and General Counsel, Upper 
      Midwest Law Center.........................................    57
        Prepared statement of....................................    59

                         ADDITIONAL SUBMISSIONS

    Ranking Member DeSaulnier:
        October 2020 report entitled, ``Corruption, Conflicts, 
          and Crisis: The NLRB's Assault on Workers' Rights Under 
          the Trump Administration''.............................   123
    Courtney, Hon. Joe, a Representative in Congress from the 
      State of Connecticut:
        Letter dated June 11, 2024, from a Coalition of Civil 
          Rights organizations...................................    71
    Walberg, Hon. Tim, a Representative in Congress from the 
      State of Michigan:
        Report published by the Institute for the American Worker    79
    Foxx, Hon. Virginia, a Representative in Congress from the 
      State of North Carolina:
        Letter dated June 12, 2024, from the Coalition for a 
          Democratic Workplace...................................   106
        Letter dated June 11, 2024, from the Institute for the 
          American Worker........................................   110
        Letter from the National Right to Work Committee.........   113


                      NLRB OVERREACH: TRAMPLING ON



                     WORKERS' RIGHTS AND FOSTERING



                               UNFAIRNESS

                              ----------                              


                        Wednesday, June 12, 2024

                  House of Representatives,
    Subcommittee on Health, Employment, Labor, and 
                                          Pensions,
                  Committee on Education and the Workforce,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:45 a.m., in 
Room 2175 Rayburn House Office Building, Hon. Bob Good 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Good, Walberg, Allen, Burlison, 
Houchin, Foxx, DeSaulnier, Courtney, McBath, Hayes, and Scott.
    Staff present: Cyrus Artz, Staff Director; Nick Barley, 
Deputy Communications Director; Mindy Barry, General Counsel; 
Isabel Foster, Press Assistant; Daniel Fuenzalida, Staff 
Assistant; Ben Gruber, Intern; Sheila Havenner, Director of 
Information Technology; Alex Knorr, Legislative Assistant; Trey 
Kovacs, Professional Staff Member; Georgie Littlefair, Clerk; 
John Martin, Deputy Director of Workforce Policy/Counsel; 
Hannah Matesic, Deputy Staff Director; Audra McGeorge, 
Communications Director; Rebecca Powell, Staff Assistant; Kelly 
Tyroler, Professional Staff Member; Seth Waugh, Director of 
Workforce Policy; Maura Williams, Director of Operations; 
Sophia Rees, Intern; Brittany Alston, Minority Operations 
Assistant; Ellie Berenson, Minority Press Assistant; Ilana 
Brunner, Minority General Counsel; Nekea Brown, Minority 
Director of Operations; Arana Blake, Minority CBCF Intern; 
Gloria Guity, Minority Intern; Stephanie Lalle, Minority 
Communications Director; Dhrtvan Sherman, Minority Research 
Assistant; Raiyana Malone, Minority Press Secretary; Kevin 
McDermott, Minority Director of Labor Policy; Marie McGrew, 
Minority Press Assistant; Paola Milbank, Minority Intern; 
Meghan O'Neil, Minority Intern; Eleazar Padilla, Minority Staff 
Assistant; Veronique Pluviose, Minority Staff Director; Rachel 
Tao, Minority Intern; Banyon Vassar, Minority IT Administrator.
    Chairman Good. The Hearing on the Subcommittee on Health, 
Employment, Labor and Pensions will come to order. I note that 
a quorum is present. Without objection, the Chair is authorized 
to call a recess at any time. Thank you to my fellow 
Subcommittee members for coming together to examine the 
National Labor Relations Board, under the leadership of 
Chairman Lauren McFerran, who President Biden recently 
renominated to the Board.
    Thank you to the witnesses for joining us as well, and I 
look forward to your testimony. Chairman McFerran assumed 
leadership of the NLRB the very day that President Biden took 
office. Under her watch the NLRB has undergone a shocking 
transformation. Once a fair and balanced arbiter of labor law, 
consistent with the National Labor Relations Act, or NLRA, NLRB 
has become the action arm for big labor.
    Big labor bias is a losing strategy for the country. Big 
labor bias is harmful to companies, employees, and ultimately 
consumers. After 3 years of this NLRB's decisionmaking, a 
typical American worker is far worse off. Real wages are 
decreasing, workers paychecks are stretched more than ever, 
average workers prospects for realizing the American dream of 
home ownership are disappearing.
    Workers watched President Biden promise to make sure the 
economy works for everyone in his State of the Union speech 
back in March. Bidenomics only seems to work for unions and 
union bosses. The American working class knows that unions are 
a tired, outdated remnant of yesteryear. It is no wonder that 
some pundits and pollsters are predicting the GOP may actually 
carry the union vote this November.
    That is because workers lives are worse off after 3 years 
of President Biden. The last thing they need is for their 
paycheck to be docked by a union that does not represent their 
interest. In fact, 94 percent of workers didn't vote for their 
current union representation, and recent NLRB Board decisions 
could drag that number even higher.
    Today we will discuss a few of the Board's key decisions 
that have led to the place where we are today. The Lion 
Elastomers, LLC's II decision expanded protections for union 
backed workplace harassment, further eroding trust and cohesion 
between employees and employers.
    Under the new standard it is harder for employers to 
discipline workers who act inappropriately while engaging in 
union activity, even if that same behavior in another workplace 
setting would have consequences. Similarly, a 2023 Stericycle 
Incorporated decision limited employers' rights to maintain 
neutral workplace rules.
    The decision's interpretation of Section 7 NLRA hampers 
employers' ability to protect their business and maintain 
order. The NLRB has made significant strides toward undermining 
fair union elections. In November 2022, the NLRB proposed 
rescinding a Trump-era rule that ensured transparency and 
fairness in union elections. Among other things, it allowed for 
the release of vote tallies, rather than impounding ballots 
during litigation over blocking charges.
    Perhaps the most troubling is the 2023 Cemex Construction 
Materials Pacific Division, which fundamentally alters the 
union recognition process. It permits unions demand recognition 
from employers based on a claim of majority support, thereby 
bypassing the secret ballot election process.
    This decision removes a democratic element of in person 
secret ballot elections, replacing them with coercive measures 
that pressure employers into union recognition without proper 
verification.
    Under Chairman McFerran's leadership the Board has engaged 
in gross mismanagement in the conduct of mail ballot elections, 
according to an October 2023 report from the NLRB Inspector 
General.
    Furthermore, an investigation conducted by this Committee 
revealed numerous findings of similar mismanagement in the 
administration of mail ballot elections across the country. It 
is a testament to how radical this Board is as it ignores its 
clear legal duties to manage fair elections in favor of 
overturning decades of precedent.
    Rather than take ownership of this mismanagement, the NLRB 
under Chairman McFerran has yet to comment publicly on the 
mismanagement of mail ballot elections. Despite this 
Committee's requests, it is unknown whether the Board has 
sought to fix these problems internally. Exposing and 
highlighting, or low lighting the Board's mismanagement, and 
undermining of key principles of the NLRA is the primary 
objective of this hearing.
    It also raises the question of whether Chairman McFerran 
should be renominated, a question the Senate should answer by 
holding a nomination hearing. Thank you, and I yield to the 
Ranking Member for his opening statement.
    [The Statement of Chairman Good follows:]

     Statement of Hon. Bob Good, Chairman, Subcommittee on Health, 
                    Employment, Labor, and Pensions

    Thank you to my fellow Subcommittee members for coming together to 
examine the National Labor Relations Board under the leadership of 
Chairman Lauren McFerran, who President Biden recently renominated to 
the Board. Thank you to the witnesses for joining us as well. I look 
forward to your testimony.
    Chairman McFerran assumed leadership of the NLRB the very day 
President Biden took office. Under her watch, the NLRB has undergone a 
shocking transformation. Once a fair and balanced arbiter of labor law 
consistent with the National Labor Relations Act (NLRA), the NLRB has 
become the action arm for Big Labor.
    Big Labor bias is a losing strategy for the country. Big Labor bias 
is harmful to companies, employees, and ultimately-consumers. After 
three years of this NLRB's decision-making, the typical American worker 
is far worse off.
    Real wages are decreasing, and workers' paychecks are stretched 
more than ever. Average workers' prospects for realizing the American 
dream of homeownership are disappearing. Workers watched Biden promise 
``to make sure the economy works for everyone'' in his State of the 
Union address back in March. Bidenomics only works for unions and union 
bosses.
    The American working class knows that unions are a tired, outdated, 
remnant of yesteryear. It is no wonder that some pundits and pollsters 
are predicting the GOP may carry the union vote in November.
    That is because workers' lives are worse after three years of 
President Biden. The last thing they need is for their paycheck to be 
docked by a union that does not represent their interests. In fact, 94 
percent of workers did not vote for their current union representation, 
and recent NLRB Board decisions could drive that number even higher.
    Today, we will discuss a few of the Board's key decisions that have 
led to the place we are today.
    The Lion Elastomers LLC II decision expanded protections for union-
backed workplace harassment, further eroding trust and cohesion between 
employees and employers. Under the new standard, it is harder for 
employers to discipline workers who act inappropriately while engaging 
in union activity, even if that same behavior in another workplace 
setting would have consequences.
    Similarly, the 2023 Stericycle Inc. decision limits employers' 
rights to maintain neutral workplace rules. The decision's 
interpretation of Section 7 of the NLRA hampers employers' ability to 
protect their business and maintain order.
    The NLRB has made significant strides toward undermining fair union 
elections. In November 2022, the NLRB proposed rescinding a Trump-era 
rule that ensured transparency and fairness in union elections. Among 
other things, it allowed for the release of vote tallies rather than 
impounding ballots during litigation over ``blocking charges.''
    Perhaps the most troubling is the 2023 Cemex Construction Materials 
Pacific decision, which fundamentally alters the union recognition 
process. It permits unions to demand recognition from employers based 
on a claim of majority support, thereby bypassing the secret-ballot 
election process. This decision removes the democratic element of in-
person, secret-ballot elections, replacing them with coercive measures 
that pressure employers into union recognition without proper 
verification.
    Under Chairman McFerran's leadership, the Board has engaged in 
``gross mismanagement'' in the conduct of mail ballot elections, 
according to an October 2023 report from the NLRB Inspector General. 
Furthermore, an investigation conducted by this Committee revealed 
numerous findings of similar mismanagement in the administration of 
mail ballot elections across the country. It is a testament to how 
radical this Board is, as it ignores its clear legal duties to manage 
fair elections in favor of overturning decades of precedent.
    Rather than take ownership of this mismanagement, the NLRB under 
Chairman McFerran has yet to comment publicly on the mismanagement of 
mail ballot elections, and, despite the Committee's requests, it is 
unknown whether the Board has sought to fix these problems internally.
    Exposing and highlighting -- or lowlighting -- the Board's 
mismanagement and undermining of key principles of the NLRA, is the 
primary objective of this hearing. It also raises the question of 
whether Chairman McFerran should be renominated, a question the Senate 
should answer by holding a confirmation hearing.
                                 ______
                                 
    Mr. DeSaulnier. Thank you, Mr. Chairman. As I have repeated 
many times, as many of you know, I was a small business owner 
for over 30 years. I pride myself on the relationships that I 
had with my purveyors and my customers, and my employees over 
those 30 years. I understood that my success as an employer, 
having met multiple pay responsibilities to my employees was 
part of my success.
    That good employees and good employers work together for 
the success of the company, whether it is a privately held 
company or a corporation. I learned clearly in those 30 years 
that there was an absolute obligation for your success and your 
return on investment and your profitability to make sure that 
your employees were well treated.
    If employees did not perform, just like employers and 
managers, you would hold them accountable. As a former union 
member, I know firsthand the benefits of union membership and 
the power workers' unions have to bridge the gap between 
workers and their employers to help not only union workers 
succeed, but all workers.
    After all it was the labor movement that built the middle 
class in the United States by giving employees a voice on the 
job. Some of our Nation's greatest advances for workers, from 
the 5-day work week to the minimum wage, to child labor laws, 
have been made possible by the labor movement.
    Americans recognize the importance of unions, which is why 
over two thirds support of approval, or have approval of labor 
unions. Not only is public support at a near record high, more 
and more workers are uniting to demand higher wages, improve 
benefits, safer workplaces, and we should support them.
    Those employees worked with their employers for their 
success, and for the consumers' and investors' success. As 
Galbraith put it, ``Labor unions are among the countervailing 
powers to balance capitalist markets and the interest of 
corporations.''
    I look forward to this Subcommittee and my Republican 
colleagues having a similar hearing on abuses on the Security 
Exchange Commission under the former administration in the 
favor of very wealthy people. Recently, I read that 751 
Americans now have five trillion dollars' worth of wealth. All 
of that came from middle class incomes, or much of it, not that 
just their investment strategies.
    Today's hearing appears to be focused on the National 
Relations Board, which during the Biden administration, under 
Chair McFerran's leadership, has often reinstated common self 
and longstanding precedent that was cast aside by prior 
administration's Board. In the process of doing so, the NLRB 
has restored balance between workers and their employers, not 
an advantage, but balance.
    I look forward to discussing those cases today and setting 
the record straight on them. In spite of our differences, I 
think all of us want a balanced economy that all Americans 
benefit from, I think. The bottom line is that Chair McFerran 
deserves credit for her leadership and thoughtful approach on 
balance.
    President Biden recently recommended her for another 4-year 
term, and I encourage the Senate to again confirm Ms. McFerran, 
just as they did on a bipartisan basis in July 2020. I think 
today's hearing presents an opportunity to hear about how the 
Board really functions and carries out its duties.
    We are fortunate to have as one of our witnesses, a 
Democratic witness, Eileen Goldsmith, a Partner in a San 
Francisco law firm for more than 20 years. Ms. Goldsmith has 
represented clients who regularly appear before the Board in 
both unfair labor practice and representation cases.
    She understands how the Board works and is supposed to 
work. She is great to have someone from my neck of the woods, 
the San Francisco Bay Area, to testify before this 
Subcommittee, and welcome. Thank you for making this trip to 
D.C. and sharing your expertise.
    What I think is clear that Ms. Goldsmith's testimony is 
that the Board carries out its duties, often on a bipartisan 
basis, but the Board needs additional resources to function 
effectively for workers and employers, and the American public. 
My Democratic colleagues and I strongly support additional 
funding for the NLRB to ensure that it can manage its caseload.
    As Ms. Goldsmith's testimony makes clear, it is not just 
resources. Unscrupulous employers can get away with firing 
workers who try to organize a union. Congress needs to step in 
and stop that from happening, both for the employees' benefit, 
but also for high road employers who follow the letter of the 
law, and the spirit.
    That is why we need to pass the Protecting Right to 
Organize Act, the PRO Act, and continue to uphold our 
commitment to workers' rights, which are all Americans' rights. 
Thank you, and I yield back.
    [The Statement of Ranking Member DeSaulnier follows:]

  Statement of Hon. Mark DeSaulnier, Ranking Member, Subcommittee on 
                Health, Employment, Labor, and Pensions

    Thank you, Mr. Chairman.
    As I have repeated many times, and many of you know, I was a small 
business owner for over 30 years, and I pride myself in the 
relationships I had with my purveyors, customers and employees over 
those 30 years. I understood my success as an employer having met 
multiple pay responsibilities to my employees was part of my success. 
That good employees and good employees work together for the success of 
the company. Whether it is a privately held company or corporation. I 
learned clearly in those 30 years there was an absolute obligation for 
your success and return on investment and profitability to make sure 
your employees were well treated. If employees did not perform just 
like employers and managers you would hold them accountable.
    As a former union member myself, I know firsthand the benefits of 
union membership and the power workers' unions have to bridge the gap 
between workers and their employers to help not only union workers 
succeed but all workers. Also, their non-union counterparts.
    It was the labor movement that built the middle class in the United 
States by giving employees a voice on the job.Some of our nation's 
greatest advances for workers -- from the five-day workweek to the 
minimum wage -- to child labor laws have been made possible by the 
labor movement. Americans recognize the importance of unions, which is 
why over two-thirds support of them approve of labor unions. Not only 
is public support at near-record highs, more and more workers are 
uniting to demand higher wages, improved benefits, and safer 
workplaces, and we should support them. Those employees work with their 
employers for their success, the success of consumers, and the success 
of investors.
    As John Galbraith put it, labor unions are among the 
``countervailing powers'' that balance capitalist markets and corporate 
interests.
    I look forward to this committee and my Republican colleagues 
having a similar hearing about abuses on the secure exchange commission 
under the former administration in favor of very wealthy people.
    Today's hearing appears to be focused on the National Labor 
Relations Board, which, during the Biden Administration and under Chair 
McLerran's leadership, has often reinstated common sense and 
longstanding precedent that was cast aside by the prior 
administration's board. In the process of doing so, the NLRB has 
restored balance between workers and their employers -- not an 
advantage but a balance.
    I look forward to discussing those cases today and setting the 
record straight on them. In spite of our difference, I think we all 
want a balanced economy that all Americans benefit from. I think.
    The bottom line is that Chair McFerran deserves credit for her 
leadership and thoughtful stewardship. I understand President Biden has 
renominated her for another four-year term, and I encourage the Senate 
to confirm Her again -- just as they did on a bipartisan basis in July 
2020.
    I think today's hearing presents an opportunity to learn how the 
Board really functions to carry out its duties.
    We are fortunate to have as one of our democratic witnesses, Eileen 
Goldsmith, a partner at a San Fransisco-based law firm. For more than 
20 years, Ms. Goldsmith has represented clients who regularly appear 
before the Board in both unfair labor practice and representation 
cases. She understands how the Board works and is supposed to work. Ms. 
Goldsmith, it is great to have someone from my neck of the woods, the 
San Francisco Bay area, testify before this Subcommittee. Thank you for 
making the trip to DC and sharing your expertise.
    What I think is clear in Ms. Goldsmith's testimony is that the 
Board carries out its duties often on a bipartisan basis -- but the 
Board needs additional resources to function effectively for workers, 
employers, and the American people. My Democratic colleagues and I 
strongly support additional funding for the NLRB to ensure that it can 
manage its caseload.
    As Ms. Goldsmith's testimony makes clear, it is not just resources. 
Unscrupulous employers can get away with firing workers who try to 
organize a union. Congress needs to step in and stop that from 
happening. For the employes but also high road employers who follow the 
letter of the law. That is why we need to pass the Protecting the Right 
to Organize Act and continue to uphold our commitment to workers' 
rights.Thank you, and I yield back.
                                 ______
                                 
    Chairman Good. Thank you. Pursuant to Committee Rule 8-C, 
all members who wish to insert written statements into the 
record may do so by submitting them to the Committee Clerk, 
electronically in Microsoft Word format by 5 p.m., 14 days 
after the date of this hearing, which is June 26, 2024.
    Without objection, the hearing record will remain open for 
14 days to allow such statements, and other extraneous 
materials referenced during the hearing to be submitted for the 
official hearing record.
    I will now turn to the introduction of our distinguished 
witnesses. Our first witness is Mr. John Ring, who is a Partner 
with Morgan Lewis in Washington, DC. He previously served as 
NLRB Chairman from 2018 to 2021. Welcome, Mr. Ring.
    Our next witness is Ms. Alice Stock, who is Of Counsel with 
Bond Schoeneck & King in New York. She previously served as the 
NLRB Deputy General Counsel from 2019 to 2021. Thank you, Ms. 
Stock.
    Our third witness is Ms. Eileen Goldsmith, who is a partner 
with Altshuler Berzon in San Francisco, California. Her 
practice consists primarily of representing unions and workers. 
Welcome, Ms. Goldsmith.
    Our final witness is Mr. Douglas Seaton, who is President 
and General Counsel of Upper Midwest Law Center in Minneapolis. 
He has long practiced labor and employment law. Welcome, Mr. 
Seaton.
    We thank the witnesses for being here today. We look 
forward to your oral testimony. Pursuant to Committee Rules, 
we'd ask that you limit your oral presentation to a 5-minute 
summary of your written statement. I would like to remind the 
witnesses to be aware of their responsibility to provide 
accurate information to the Subcommittee. I will now recognize 
Mr. Ring for 5 minutes.

STATEMENT OF MR. JOHN RING, PARTNER, MORGAN LEWIS, WASHINGTON, 
                              D.C.

    Mr. Ring. Thank you, Mr. Chairman. Chairman Good, Ranking 
member DeSaulnier, and other Subcommittee members, thank you 
for your invitation to participate in today's hearing. As 
mentioned, I am a partner at Morgan Lewis, where I practice 
labor law, and did so for almost 30 years prior to becoming 
Chairman of the National Labor Relations Board.
    I served as Chairman for almost 3 years, and then as a 
Board member until the end of my term in December 2022. 
Although I have spent my career representing management, I am 
proud to have started in the labor field working at the 
Teamster's headquarters here in Washington. It is an experience 
that gave me an important perspective, and that shaped my 
overall approach to labor relations.
    I am a firm believer that labor law works best when both 
sides play by the same set of rules and understand and respect 
each other's objectives. We are here today to talk about the 
National Labor Relations Board, an agency that I care a great 
deal about, and about the National Labor Relations Act, a 
carefully crafted statute that for the last almost 90 years has 
done an admiral job of balancing the interests of labor and 
management.
    While the NLRB over the years has largely fulfilled its 
central objectives of promoting workplace democracy, and 
ensuring industrial peace, I fear today the NLRB has seriously 
lost its way. The current Biden Board majority, and the NLRB 
General Counsel are promoting a particular agenda, and 
attempting to administratively rewrite the Act. They are doing 
this to facilitate unionization and to create--to increase 
union density at the expense of individual employee rights and 
employer interests.
    Despite the fact that the Act clearly directs the agency to 
be impartial and be an impartial arbiter of labor matters. 
Approximately 8 years ago many had similar concerns about the 
NLRB. The Obama-era Board had started a process of overturning 
years of longstanding case precent in many areas of established 
Board law.
    At the time many were alarmed about what was happening. It 
appeared to be a blatant attempt to rewrite key aspects of the 
Act, and also an upsetting of the balance established by the 
National Labor Relations Act, tilting it toward labor. At the 
time the Board was also bogged down and distracted with many of 
these efforts that seemed to be focused on non-core priorities.
    I was very concerned, and that is one of the reasons that I 
feel fortunate that I was able to have an opportunity to serve 
on the National Labor Relations Board. While I was Chairman, we 
were able to restore the Board's historic balance, and we 
reestablished much of the decades old precedent that had been 
changed by the Obama years.
    We returned many of the standards to what they had been for 
decades, including the joint employer standard, the independent 
contractor standard, and the rules governing union election 
procedures. We also worked to reduce an appalling case backlog, 
and we did so largely by putting an end to the Obama Board's 
pursuit of these issues that were outside of the core mission, 
or that involved dubious statutory interpretations that 
resulted in lengthy, unsuccessful litigation.
    After the Obama-era Board, we thought we had seen the worst 
at the NLRB. Unfortunately, the current Board majority appears 
to be reverting to, in fact doubling down on, the old game 
plan. Today we find ourselves in a back to the future moment, 
although what is happening now is far worse. From their outset 
and their time in office, the new Board majority and General 
Counsel have made no secret that their intent is to undertake a 
wholesale rewriting of the Act.
    They immediately targeted precedent that we had restored, 
called for unprecedented expansion of many interpretations of 
the Act, and are now steadily working to remake and reimagine 
the National Labor Relations Act into something the drafters of 
the statute never intended, or could have imagined.
    In doing so, both the Board and the General Counsel are 
again pursuing issues that are either outside the core mission, 
or involve suspect statutory interpretations that are being 
rejected by the courts. Among the most troubling of these areas 
is the current Board majority has radically upended the 
framework for union organizing, and under the U.C. Mex Case 
there is essentially compulsory unionism simply because a union 
says it represents a majority.
    The Board now imposes unionization on employees through 
mandatory bargaining orders based solely on the conduct of 
their employer, and despite the fact that Congress rejected the 
card check repeatedly, there is now a card check in the NLRB 
process.
    I will end my statement by saying no one claims the NLRA is 
perfect, but at times both labor and management have suggested 
otherwise in some amendments, but in the end, it is Congress 
that makes the Federal labor law, not the NLRB.
    [The prepared statement of Mr. Ring follows:]
    
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    Chairman Good. Thank you, Mr. Ring. We will now recognize 
Ms. Stock for 5 minutes.

  STATEMENT OF MS. ALICE STOCK, OF COUNSEL, BOND, SCHOENECK & 
                 KING PLLC, NEW YORK, NEW YORK

    Ms. Stock. Thank you for the invitation to testify at this 
hearing. I am honored to be here. I have been asked to assess 
the Board's performance with respect to protecting workers' 
rights and fairness. In my opinion, this Board's decisions, 
policies, and management of agency operations are inconsistent 
with, and contrary to the mission and core principles of the 
NLRA.
    Indeed, the current Board agenda subverts the aims of the 
NLRA and impedes its utility and effectiveness as a 
constructive, contributing component of our Nation's labor 
stability. This Board's policies disregard balance, fairness, 
and the rights of employees and employers, and negate its role 
as an impartial administrator of the NLRA and guardian of 
worker's rights.
    This Board's agenda is neither neutral nor fair. It is an 
agenda that favors unions and tramples the rights of workers 
and employers. Its rulings violate constitutional principles, 
usurp the powers of Congress, contradict U.S. Supreme Court 
holdings, lay waste to the rules of administrative procedure, 
and trample the substantive and procedural due process rights 
of employees and employers.
    The NLRB's two functions are to conduct secret ballot 
elections, and to investigate and resolve labor disputes 
through settlement or Board decision. In performing these two 
functions, the Board must conform to the U.S. Constitution, and 
applicable U.S. Supreme Court rulings.
    Adhere to the NLRA's text and may not make or change the 
law through decisionmaking, and act neutrally, impartially, and 
even-handedly, favoring neither employers nor unions. This 
Board's decisions and policies do not hue to any of these 
cardinal principles. I address three areas of grave concern.
    Elections, this Board's decisions, policies and practices 
concerning representation elections have and are practically 
speaking, disenfranchising large numbers of workers, and 
deliberately depriving workers of their right to vote in a 
secret ballot election.
    Contrary to NLRA principles, this Board is imposing on 
employees, unelected bargaining representatives, that likely or 
actually do not enjoy majority support. This Board's preference 
for mail ballot elections over in person elections, and its 
mishandling of mail ballot elections also disenfranchises 
employees because they result in reduced voter participation, 
increased invalidation of ballots, and greater employee 
exposure to union coercion and intimidation.
    Decisionmaking in its adjudications, the Board has not 
colored within the lines of the law and congressional intent, 
but instead has radically changed the law. The Board's 
decisions exhibit a troubling disregard for the core principles 
of the NLRA, for its obligation to follow applicable U.S. 
Supreme Court precedent for the rights of employees and 
employers, and for substantive and procedural due process.
    Caseload mismanagement--case processing times and backlogs 
have increased at all levels of the NLRB. During periods of 
decrease or no tangible increase in case filings, these backlog 
increases can only be attributed to mismanagement by agency 
officials. Enshrined as core principle of the NLRA, and indeed, 
of our democracy itself, is the selection of a representative 
through a secret ballot election.
    The secret ballot election has been the gold standard for 
selecting bargaining representatives since 1935. This Board has 
nevertheless pursued an anti-democratic policy agenda to 
eliminate secret ballot elections, thereby depriving employees 
of the free choice and selection of a bargaining representative 
that is guaranteed by the NLRA.
    In its zeal to push its policy agenda, and rewrite the text 
of the NLRA, this Board has ignored the bedrock concepts of our 
legal system, fairness and due process. The Board's 
decisionmaking and mismanagement of elections and agency 
caseload negatively impact the effectiveness of the NLRB and 
undermine its authority and credibility as a neutral arbiter of 
labor disputes.
    They also subvert the purposes of the NLRA, and danger its 
utility and effectiveness as a source of labor stability and a 
pillar of economic growth of our Nation.
    [The prepared statement of Ms. Stock follows:]
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    Chairman Good. Your time has expired. I am sorry. Thank you 
very much, Ms. Stock. Ms. Goldsmith is recognized for 5 
minutes.

STATEMENT OF MS. EILEEN B. GOLDSMITH, PARTNER, ALTSHULER BERZON 
                 LLP, SAN FRANCISCO, CALIFORNIA

    Ms. Goldsmith. Thank you, Chairman Good and Member 
DeSaulnier, and members of the Subcommittee for the opportunity 
to testify today. I am a practicing union lawyer in San 
Francisco. I have been representing labor unions for more than 
20 years, and I want to bring the focus to what does this 
agency actually do from the perspective of someone who 
practices regularly before the agency representing clients.
    What does the Board do? The Board's central duty is to 
protect employees' rights under the Act in Section 7. I think 
it is worth looking at the language of Section 7 for just a 
moment. It creates the right to self-organization, to form, 
join, or assist labor organizations, to bargain collectively 
through representatives of their own choosing, and to engage in 
other concerted activities for the purpose of collective 
bargaining, or other mutual aid or protection, and the Act also 
protects employees' right to refrain from those activities.
    In upholding the constitutionality of the Act, the U.S. 
Supreme Court in Jones and Laughlin Steel called those Section 
7 rights a fundamental right, so that is the right we are 
talking about. That is what the Board is interpreting every 
day. I have the greatest respect for the Act and the rights 
that it created.
    In my testimony, I talked about typical examples of how the 
Board operates almost always in a very non-partisan and 
unanimous fashion. Particularly, when you look at cases down at 
the regional level, which is where the overwhelming majority of 
cases are actually resolved.
    They are resolved in a thorough, professional and utterly 
nonpartisan way. I wanted to mention a couple of cases that 
kind of illustrate what work--both what is the ordinary 
functioning of the Board and what workers are up against when 
they attempt to exercise their Section 7 rights.
    These few cases that I mention in my testimony from my own 
law firm, one is, and generally speaking, these cases, are, 
involve the application of well settled law to sets of facts, 
and they are, they may not be grabbing headlines, but these are 
crucial functions of the Board that workers and their 
representatives rely on, as well as employers.
    In one typical case that my colleagues handled in my firm, 
several workers who were employed by a construction contractor 
were fired when they tried to organize a union. After a union 
organizer met with workers at the jobsite, they followed--the 
workers followed up with that organizer, met with him, 
discussed unionizing, and signed authorization cards.
    The very next day, the very next day, the supervisor told 
one of the workers that he, ``Knew what you guys did with the 
union yesterday,'' and directed one of those workers to fire 
the others because again quoting, ``The company does not use 
those type of people.''
    A supervisor confirmed later that day that all of the 
workers had been fired. The union filed a charge against this 
company for alleging that the company fired those workers for 
having tried to unionize. Following a thorough investigation by 
staff at NLRB Region 21, the Board's General Counsel found 
probable cause to believe the employer violated the Act.
    The case proceeded to a hearing, and I cannot say it any 
better than the ALJ said it, ``The motive for the workers' 
firings, a best supported by the record, is that the company 
hoped that by terminating a handful of employees, including 
some relatively senior and influential ones, it could quell 
interest in a nascent union campaign.''
    As the data shows that I discuss in my written testimony, 
what happened at that company is hardly isolated. The other 
point I would like to raise briefly is elections. My firm has 
recently handled several elections involving Stanford 
Healthcare and Packard Children's Hospital.
    In each case, the union and the employer stipulated to the 
proposed bargaining units and the terms of those elections, so 
the employer agreed to handle those by mail ballot. They went 
very smoothly, they had very high participation by the voters, 
79 to 100 percent participation. We were very grateful for the 
efficiency and professionalism of Region 32 staff in handling 
those matters.
    Despite the NLRB's important work, a critical problem that 
confronts both labor and management is the severe understaffing 
at the Board, and the budget, which was flatlined for almost a 
decade until a slight increase in Fiscal Year '23. That is not 
good for anyone.
    [The prepared statement of Ms. Goldsmith follows:]
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    Chairman Good. I am sorry. Your time has expired.
    Ms. Goldsmith. Thank you.
    Chairman Good. Thank you, Ms. Goldsmith. We will finally 
recognize Mr. Seaton for 5 minutes.

   STATEMENT OF MR. DOUGLAS P. SEATON, PRESIDENT AND GENERAL 
   COUNSEL, UPPER MIDWEST LAW CENTER, MINNEAPOLIS, MINNESOTA

    Mr. Seaton. Thank you, Mr. Chairman, Ranking Member 
DeSaulnier, members of the Committee. You have a full bio, and 
the written testimony I have provided in much more detail than 
I can review here of course today. My background is simply that 
I have taught and practiced, and written about labor history, 
labor law, labor relations for 40 plus years.
    I now work for a nonprofit, nonpartisan public interest law 
firm, but I am speaking here simply as an individual because of 
my concern about the status of the National Labor Relations 
Board's deliberations, and the functioning of our labor 
relations system, a great institution in our country.
    I believe that Senators Wagner and Taft, and Representative 
Hartley, the authors of our labor laws, would not recognize the 
direction of the NLRB under the current Chair. The genius of 
the American labor law system is in several respects 
contrasting with that of other major democracies, and those 
influenced by Western democracy.
    We have three critical things going for us in our system. 
One, our employees choose union representation, or not, and can 
extricate themselves from that representation if they wish to 
do so. That is important, and it is unique.
    Second, we have a system based on single employer 
bargaining, not national accords, not national strikes over 
political and social issues, but individual employer 
agreements, which is a very, very important thing for our 
system.
    The third piece is we have a tri-partite balanced system, 
which recognizes employee rights, union rights, and employer 
rights, and that is a system of checks and balances that is 
very familiar to the members of this Subcommittee. It is the 
same one we have functioning in our Constitution nationally.
    Those are important things to preserve. It is a balanced 
system with employee choice at its center, and it functions by 
returning the equilibrium whenever one group overreaches, gets 
out over its skis. When one of the parties involved, or even 
worse, the agency itself puts its thumb on the scales, that is 
not good for the system. It does not work in anyone's 
interests, and it does not work in the country's interest.
    I have grave concerns that the current Board, under its 
current Chair, is not adhering to the spirit and purpose of the 
NLRA as I have described it in several of its recent decisions 
and actions. The clear pro-union institutional bias of the 
current Board Chair and corresponding anti-employee, and anti-
employer animus are particularly disturbing because as this 
Subcommittee knows, unions represent only 6 percent of our 
workforce in the private sector. 6 percent of the workforce, 
and even less when you consider the large number of service 
providers who function as independent contractors, choosing not 
to be employees themselves.
    Now, as time allows, I will mention a few specific areas of 
concern which I have over the current Board. There are six in 
number, I will try to be very brief for the Committee's 
pleasure. Employee free choice. Everyone at this table has 
mentioned that free choice. That is a choice that extends to 
either selecting or unselecting union representation.
    I believe that the current NLRB has modified, sought to 
overrule, or has changed decisional law, and procedures in many 
areas to limit the ability of employees to have that choice 
that the labor laws are meant to enshrine in our country, and 
that is a very serious problem in our system at present.
    The second area that I would mention is employee protection 
from insults in the workplace. The current Board has allowed 
unions and individual employees to insult one another in the 
course of union activity. That was not allowed under the prior 
Board, and employers were permitted to discipline in those 
cases when those things happened.
    That has been disallowed at present. The third area I would 
mention is employee confidentiality protections and complaint 
investigations. This is a central feature of employer practice, 
recommended by the EOC and State discrimination agencies, and 
whistleblower areas and other areas, but the current Board has 
allowed unions and itself to intervene in the confidentiality 
process, which hurts employees, allows retaliation against 
them, and imperils the integrity of those investigations as 
well.
    The fourth area I would mention because it is very critical 
to employee choice is employer run meetings to instruct and 
teach about labor law and labor relations process. This is 
extremely important, and the result of it is this Board has 
simply disallowed--it is in the process of disallowing these 
meetings, which have been going on for many, many decades.
    We are now in a position where employee choice is offended 
in many areas, and I will stop there. There is more, of course, 
in my written testimony. I thank the Committee very much for 
its opportunity to speak here today.
    [The prepared statement of Mr. Seaton follows:]
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    Mr. Burlison.
    [Presiding] Thank you. Under Committee Rule Number 9, we 
will now question witnesses under the 5-minute rule. I now 
recognize myself for the purpose of questions for 5 minutes. 
The National Labor Relations Board was created by Congress to 
serve as the fair and neutral mediator to help resolve 
workplace disputes between employers and employees.
    The Biden administration has used the NLRB as a tool, 
instead of for employees, for big labor interests. In May 2023, 
the NLRB issued a decision in the Lion Elastomers, LLC case 
that restores the Board's setting specific standard for 
determining whether an employee's abusive conduct is protected 
by the NLRA. The decision will make it very difficult to 
discipline workers for offensive or abusive conduct while 
engaging in ``protected activity'' under the NLRA.
    The Board held that to fully protect employee rights, 
conduct during protected concerted activity must be evaluated 
in the context of that important activity, not as if it 
occurred in the ordinary workplace context. Marvin Kaplan 
dissented from the decision, highlighting that it would create 
significant conflict between the Board law and equal 
opportunity laws, prohibiting discrimination, workforce and 
harassment issues.
    My first question is for Mr. Ring, his being the former 
Chairman of the NLRB, I understand that you formerly served, so 
you might have some insight on the decision the Lion Elastomers 
case, which would, I believe, create potentially opportunities 
for people to make racially, offensive, discriminatory or 
sexually offensive statements or otherwise, at work without 
repercussion. Can you discuss how this creates a direct 
conflict between the NLRA and Title 7 of the Human Rights Act--
Civil Rights Act?
    Mr. Ring. Yes. Thank you, Congressman. The NLRA--the NLRB 
for some reason, as you mentioned, believes that employees who 
engage in union activity or other kind of labor relations 
activity have to use, or should be permitted to use offensive 
conduct and offensive speech.
    When I was Chairman, we overturned that setting specific 
standards in a case called General Motors, and then this, the 
current Board reversed again, and reinstated Lion Elastomers. 
Under our Civil Rights laws, and the EOC has weighed in on 
this, employers are required to take action when employees are 
engaging in offensive conduct that could create a hostile work 
environment.
    The NLRB then takes the position that that is protected, so 
it puts employers in a position of having to decide whether 
they could violate the Civil Rights laws, or the EEO laws, or a 
violation of the National Labor Relations Act. The conduct that 
was permitted under this standard is abhorrent.
    Mr. Burlison. In essence, you can be racially--you can 
discriminate, you can be offense, you can commit sexual 
harassment, so long as you are organizing?
    Mr. Ring. Or, worse than that, as long as you are 
mentioning wages, hours or working conditions while you are 
talking about that.
    Mr. Burlison. Thank you. Mr. Seaton, the NLRB issued 
decisions to limit the circumstances and times when employees 
can decertify or changing representation. Can you discuss how 
this will--has made it more difficult for workers and 
eliminated their choice whether or not to withdraw from a 
union?
    Mr. Seaton. Yes, thank you, Mr. Chairman. Yes. A core 
principle of course is everyone at the table has said before 
the Committee is employee choice. Part of the choice is a 
choice to end union representation, and that is the 
decertification election process.
    That process has been truncated under the current Board 
Chair, so that in prior circumstances where this had been 
available at the sale of a business in many cases, at the 
termination of a collective bargaining agreement, in an impasse 
situation, or simply when the employees chose to do so, when a 
contract was not in effect.
    The Board has truncated this right and has typically 
undermined the decision the employees have made in many of 
these instances, saying that somehow the employer is always 
involved somehow when a decertification takes place. I think 
this is a fundamental truck lane trampling on the rights of 
employees to make these choices, and it has been a serious 
problem under this current Chair.
    Mr. Burlison. I believe that employees should have the 
choice to remain in the union, or negotiate with their employer 
without a union representation, which is why I introduced the 
Workers Choice Act. I now recognize Mr. Courtney for 5 minutes.
    Mr. Courtney. OK. Thank you, Mr. Chairman, and thank you 
for the witnesses for being here. This is our sixth hearing in 
the 118th Congress on this Subcommittee that I would really 
almost just describe as union bashing. You know, despite the 
sort of, you know, talking points that we hear at these 
hearings, the fact of the matter is, as Mr. DeSaulnier 
mentioned in his outset, the annual Gallup Poll still shows 
that labor is in a far stronger position with the American 
public than it has maybe 10 or 15 years ago.
    Close to 70 percent support for unions. Mr. Seaton, 
thankfully--or I appreciate the fact that, pointed out that in 
the private sector it is at 6 percent organization, so the 
notion that somehow unions are, you know, that the deck is 
stacked right now in terms of organizing and labor law in the 
U.S. as far as unions are concerned, I think those two numbers 
really suggest otherwise.
    We have seen two very high-profile union elections just in 
recent months where, in my opinion, it really shows that the 
process is still balanced. We had the Volkswagen plant in 
Tennessee, where the workers, despite a lot of national 
pressure, and attention that was being put on it, voted to join 
the union.
    Conversely, in Alabama, when the Mercedes union election 
took place, the opposite result occurred. Again, under this 
same NLRB Board that we are hearing so many negative things 
about.
    Ms. Goldsmith, there was some testimony this morning that, 
you know, that the right to a secret ballot is being eliminated 
under the Cemex ruling. Again, it sounds like you have been 
directly involved with some union elections recently. Can you 
sort of clarify, really what that decision says, and the fact 
that secret ballots are still very much a protected process if 
the parties so choose?
    Ms. Goldsmith. Sure. The process of voluntary recognition, 
as opposed to a secret ballot election, has always been legal 
under the National Labor Relations Act. An employer can agree, 
voluntarily, to recognize a union when the union comes and says 
we have majority support among the employees.
    What the Cemex decision does, it says when a union 
presents, requests for voluntary recognition based on majority 
support, the employer has two choices. The employer can either 
grant voluntary recognition or can file an election petition to 
verify whether in fact the union does have majority support.
    The union also still has the ability to file its own 
election petition, and in practice on the ground since Cemex 
was decided, that is what we are actually seeing is unions do 
file those election petitions, and/or the employer is filing 
its own election petition. There are distinct advantages to 
having certification following an election for the union 
because that, for example, there is a legal advantage that only 
flows from certification, which is you have a protected time 
period to try and negotiate a first contract with the employer.
    The notion that Cemex has somehow eliminated secret ballot 
elections, I think is frankly absurd and totally inconsistent 
with what the Board said in the case.
    Mr. Courtney. We also just heard about the Lion Elastomers 
case where again, there is a claim that that ruling is at odds 
with the Civil Rights law. Again, Mr. Chairman, for the record 
I would ask to be admitted a letter from a Coalition of Civil 
Rights organizations, actually in support of the Elastomers 
decision, and ask that be made part of the record.
    Mr. Burlison. Without objection.
    [The information of Mr. Courtney follows:]
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    Mr. Courtney. Again, could you comment, again, on that 
ruling, which actually was about restoring a 40-year precedent, 
which I thought some of the witnesses this morning were all 
about, in terms of trying to respect precedent, in the National 
Labor Relations Act?
    Ms. Goldsmith. That is correct. Lion is one of several 
cases where the current Board is actually restoring the law as 
it was in effect for decades until the Trump Board. What Lion 
does is say that those Section 7 rights are important, and 
under cases, lines of cases that were decided up until the time 
of the Trump Board, the Board had held that when employees are 
engaged in protected activity under Section 7, courts and the 
Board recognized that sometimes things get heated.
    When a court or the Board is considering speech in that 
context, it has to take into account the Section 7 context.
    Mr. Courtney. Great. Thank you.
    Ms. Goldsmith. Thank you.
    Mr. Courtney. I yield back.
    Mr. Burlison. Thank you. I now recognize Mr. Allen for 5 
minutes.
    Mr. Allen. Thank you, Mr. Chairman. Mr. Ring, in 2023 the 
National Labor Relations Board issued the Joint Employer Final 
Rule, which upends the traditional direct and immediate control 
standard, and creates an expansive, vague and costly standard.
    In March 2024, a Federal District Court struck down the 
rule because it exceeded the NLRB's authority. Also in 2024, 
the House and Senate passed a congressional Review Act 
Resolution to nullify the rule. Despite a Federal Court 
striking down the rule, and Congress expressing its 
disapproval, the NLRB decided to appeal the Court's decision, 
striking down the Joint Employer Rule.
    As former NLRB Chairman, would a bipartisan and bicameral 
rejection of a rule, along with a Court decision knocking the 
rule down, have been taken into consideration when deciding 
whether to pursue an appeal?
    Mr. Ring. Of course it would. I will just add that there 
was a very similar joint employer standard that was adopted by 
the Board during the Obama years that was struck down by the 
D.C. Circuit at least twice, so this standard that they have 
been pushing is DOA on a number of Courts. Why they continue to 
push it is puzzling.
    I always viewed my role at the Board as trying to color 
within the lines. We saw our role as not having a particular 
agenda, but rather to enforce the statute and interpret the 
statute the way Congress had written it, as interpreted by the 
courts. This Board does not seem to follow that same approach.
    Mr. Allen. I would like to emphasize here that I have a 
bill, the Employee Rights Act, which clarifies that two or more 
employers must have actual, direct, and immediate control over 
employees to be considered joint employers, and will protect 
the franchise model by codifying the long standard definition 
to prevent franchise owners from becoming corporate middle 
managers.
    Mr. Seaton, during Chairman McFerran's tenure, the Board 
has revised election rules for union representation, and 
decertification elections to diminish employees' rights to 
refrain from union activity. Can you discuss some of these 
basic changes made by this Board?
    Mr. Seaton. Yes. Thank you, Representative. Yes, the 
changes are many throughout the procedural rule, and they, as I 
said in the earlier comments I made, they truncate employee's 
rights in many ways. Now, employees do not have a direct role 
in elections, but they are important for their rights, and 
those rules have been modified in a way that makes it very 
difficult to object to the nature of the unit proposed.
    It essentially nullifies the opportunity to challenge the 
inclusion or exclusion of certain employees within the 
bargaining unit, and we have found that in many cases that I 
have looked at, you simply do not have an opportunity to make 
your point in these proceedings in a way that will affect the 
actual outcome.
    Instead, an election takes place, and a union may in some 
cases be recognized as the bargaining agent, where employees 
really have not had a true opportunity to make their voices 
heard in the matter, nor has the employer for that matter.
    Mr. Allen. Um-hmm. Well, let me followup with this. 
Independent contractors are not employees under the National 
Labor Relations Act. In 2023, the NLRB issued a decision in the 
Atlanta Opera case that made it easier for the Board to deem 
independent contractors to be employees.
    Your written testimony notes that this decision is another 
assault on worker choice. Can you explain how the Board's 
efforts to undermine an individual's right to be an independent 
contractor impacts that worker's choice?
    Mr. Seaton. Yes. Thank you again, Representative. Employees 
service providers, I will call them generically, have a choice 
as to whether to be employees or independent contractors. That 
is a very important right under our Constitution, a livelihood 
right, and the Board has truncated and restricted the arena of 
choice for employees by essentially making it very difficult to 
choose to be an independent contractor.
    In these decisions, and many others, and in efforts to 
promote the Joint Employer Rule that you mentioned also, it has 
the effect of cutting off that opportunity for employees. I 
think it is a fundamental right to choose those things, and I 
think that this Board actually has restricted that right.
    Mr. Allen. Right. Thank you, and again the Employer Rights 
Act would create consistency and clarity across Federal 
statutes with respect to employee and independent contractor 
status. The ERA provides essential protections for workers' 
rights, choices, and freedoms for the record. I have additional 
questions, which I will submit for the record, and with that my 
time is out, and I yield back, Mr. Chairman.
    Mr. Burlison. Thank you. The Chair now recognizes Mrs. 
Hayes for 5 minutes.
    Mrs. Hayes. Thank you and thank you to our witnesses for 
your testimony today. Last year, 16.2 million workers were 
represented by a union, with the total number of workers in 
unions growing by 191,000. However, it is important to keep 
these numbers in context.
    The percentage of workers represented by a union in 2023 
decreased slightly from 11.3 percent to 11.2 percent. This is 
now the sixth hearing in this Subcommittee, during the 118th 
Congress on the topic of unions and the freedom of workers to 
organize. That is one hearing for every 1 percent of the 
private sector workers represented by a union in 2023.
    The right to organize, collectively bargain, and form a 
union has been the law for nearly a century. Despite this 
longstanding precedent, many employers continue to commit 
unfair labor practices because the benefits of union busting 
outweigh the penalties for breaking the law.
    In Fiscal Year 2023, charges of unfair labor practices were 
up 10 percent, and in the first 6 months of Fiscal Year '24 
unfair labor practice charges rose by 7 percent. Until 
recently, employers faced no monetary penalty for illegally 
retaliating against workers for exercising their right to 
organize and form a union.
    If a worker was fired for participating in a union drive, 
they were entitled to back pay following the resolution of a 
case before the NLRB and could have their job reinstated at 
that point. The employer would have to provide the money, the 
employer would have to provide the money they would be paying 
had they not broken the law, but the worker could face 
additional negative consequences beyond lost wages.
    Without a source of income, or benefits from the employer, 
a worker may rack up credit card debts, miss rental or mortgage 
payments, and deal with unexpected medical expenses. In 
December 2022, the NLRB issued a decision in Thryv, Inc., 
allowing the Board to seek a make whole remedy for an affected 
worker for all direct or forceable pecuniary harms due to an 
unfair labor practice.
    My question is for Ms. Goldsmith. In your experience, when 
workers can only win back pay after suffering from an unfair 
labor practice by employers, are they truly made whole?
    Ms. Goldsmith. Thank you for the question. When an employee 
is fired, let us say for participating in union organizing, 
they might get a back pay remedy. It might be years after the 
fact, long after they have gone on to other jobs. Long after 
they have moved on with their lives, and that back pay remedy 
will also be reduced based on whatever earnings they have had 
in the meantime.
    They can also experience all kinds of other direct losses, 
such as medical expenses they might have to pay out of pocket 
because they lost their health insurance when they got fired, 
or job search expenses that are connected to having been fired. 
The decision in Thryv acknowledged that all of those are part 
of making a person whole if they have suffered this kind of 
injury as a result of the employer's unlawful act.
    Thryv, I will add, just pointed out that those kinds of 
remedies have long been recognized in many cases decided by the 
Board going back decades, and it just kind of collected them in 
one place.
    Mrs. Hayes. Thank you. In your testimony, you mentioned 
that in Fiscal Year '23, the Board recovered almost 57 million 
in back pay for employees whose rights were violated. While 
that is an impressive figure, it strikes me as a sign that many 
unscrupulous employers are willing to just provide back pay to 
prevent workers from organizing.
    Will the Board's decision in Thryv create a more meaningful 
deterrent against unfair labor practices in your opinion?
    Ms. Goldsmith. I think it contributes to being a more 
effective deterrent. The facts on the ground are that employers 
are willing to violate the Act because the remedies are quite, 
quite weak, honestly. The more those remedies can actually act 
as a deterrent, the better off. Employers are willing to take 
the chance of violating the Act because in the short term, and 
the facts on the ground, they get the result they want, which 
is to shut down the union organizing effort.
    Mrs. Hayes. Thank you. I have one more question, but I only 
have 10 seconds left, so I am going to yield back, so that my 
time does not expire. Thank you for being here today. I 
appreciate it.
    Mr. Burlison. Thank you. I now recognize Mr. Walberg for 5 
minutes.
    Mr. Walberg. Thank you, Mr. Chairman. Thanks to the panel 
for being here. Often, when people think about labor policy, 
they do not think about it in the context of higher education. 
As we know, college campuses have seen an uptick in organizing 
over the past several years, with many labor unions expanding 
to represent graduate instructors and other campus workers.
    That has contributed to additional tension on college 
campuses, which has been magnified since October 7th. I want to 
highlight a Wall Street Journal opinion piece from March 
entitled, ``My Union Dues Are Being Used Against Israel.'' The 
article details how Jewish graduate students at MIT are being 
forced to pay into a union that openly supports BDS, also with 
union representative that has been seen and witnessed by these 
students taking part in demonstrations calling for the 
destruction of Israel and making antisemitic statements.
    These MIT graduate students had to file an EEOC complaint 
arguing the union was discriminating against them based upon 
their cultural heritage and identity, and it failed to provide 
a religious accommodation to have their union dues deferred. 
Carrying on from a previous form of questioning, Mr. Ring, in 
2023 the NLRB issued a decision in the Lion Elastomers case 
that protects union supporters who make racially offensive, 
discriminatory and sexually offensive statements, or otherwise 
engage in offensive conduct.
    Based on the Board's decision, would a union calling for 
global Intifada, and the destruction of Israel, or a worker who 
makes antisemitic tropes against a fellow member be protected 
speech?
    Mr. Ring. Thank you, Congressman. I do not know the answer 
to that, but I think Lion Elastomers case, and the Board's 
current stance on this issue would make it much less clear that 
it is not. I think under Board law, those type of things 
should--and the longstanding Board law, those types of things 
should not be protected by the Act.
    They are outside of the workplace issues, and they should 
not be protected. This Board has signaled that they are willing 
to embrace that type of conduct that is protected or speech 
that is protected, as long as it has some relation that they 
can point to something in the workplace.
    Some supervisor at some point in time, had made a comment 
that was perceived as discriminatory. That makes it a workplace 
issue, and therefore that would be protected, so it is a 
slippery slope.
    Mr. Walberg. Again, an interesting division between NLRA 
and Title VII, which is a huge challenge. What recourse do 
graduate students currently have if they feel their union dues 
are being used in a way that unfairly represents them? Is there 
any recourse?
    Mr. Ring. Yes. This is the difficulty for the union 
members. There really is not a lot of recourse, and has been 
stated here before, the normal recourse is to decide to 
decertify your union, which is very, very difficult under the 
current system.
    Mr. Walberg. From your experience do you think Congress 
meant for graduate students to be employees under the National 
Labor Relations Act?
    Mr. Ring. I personally do not.
    Mr. Walberg. I do not think so either. Mr. Chairman, I 
would like to submit for the record a recent report published 
by the Institute of American Worker, highlighting how Chair 
McFerran has allowed harassment in the workplace.
    Mr. Burlison. Without objection.
    [The information of Mr. Walberg follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 

    
    Mr. Walberg. Thank you. With that I yield back.
    Mr. Burlison. OK. We now recognize Mr. Scott for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Ms. Goldsmith, do 
workers have a private right of action under the NLRA?
    Ms. Goldsmith. No. They do not.
    Mr. Scott. What does that mean for their ability to have 
their rights vindicated?
    Ms. Goldsmith. Laws like Title VII and the FLSA provide 
private rights of action for individuals. The individual can 
take their own case to Court, prosecute their case, whatever. 
Whatever they allege violated the law, subject to exhaustion 
under Title VII. Under the National Labor Relations Act, the 
worker can only bring their complaint to the agency.
    Agency staff investigates their complaint, decides whether 
or not to bring that case forward.
    Mr. Scott. Does that change, is the vigorous nature of 
that, the cases, depend on the administration?
    Ms. Goldsmith. Down at the regional level, I think it does 
trickle down to the regional level how cases are processed, and 
what gets attention. I will say that at the regional level, the 
staff are very professional and very thorough, and they work 
really hard to work up whatever charges are brought to them.
    Mr. Scott. In that light, can you comment on the staffing 
level at the NLRB and whether or not they have sufficient 
resources?
    Ms. Goldsmith. Yes. What we have seen in recent years is 
the staff are overwhelmed at the regional level. There has been 
a very dramatic increase in caseload and that has not been 
accompanied by a comparable level of funding, and many regions 
have lost staff and have not been able to replace them. That is 
really causing very difficult delays, particularly in 
processing the unfair labor practice charge cases.
    Mr. Scott. Can you say why it is critical that the NLRB 
have all five Board seats filled?
    Ms. Goldsmith. I think what is critical is that the Board 
should always have a quorum, and what we saw in the late Bush 
administration, and the early time of the Obama administration, 
was that the Board actually dropped down to two members which 
was less than a quorum, and that led to absolute gridlock.
    Cases were languishing for very long times. Those people 
simply did not have the capacity to process the cases that were 
before the Board at the time. Then the U.S. Supreme Court said 
that the two-member Board decisions were invalid because the 
Board did not have a quorum.
    I would say that the really important thing is to make sure 
that the Board always has a quorum.
    Mr. Scott. You commented on the insufficiency of penalties 
for unfair labor practices. Can you also comment as to what the 
level of penalties are as a deterrent for unfair labor 
practices?
    Ms. Goldsmith. Well, there are no penalties per se in the 
Act, which is one of the problems in that the Act does not have 
a lot of deterrent power because it is limited to providing 
make whole relief.
    Mr. Scott. As you indicated, make whole could be nothing if 
the person got another job?
    Ms. Goldsmith. Right.
    Mr. Scott. In fact, if they got a good union job, they are 
probably making more than they were making at the plant they 
got fired from.
    Ms. Goldsmith. Right. We often see that workers, once you 
calculate the interim earnings, their back pay may be really 
negligible. Then an offer of reinstatement may be a couple of 
years after a worker was fired. They may not be interested in 
reinstatement anymore because they have moved on with their 
lives.
    Mr. Scott. What kind of deterrent is provided with that 
kind of system, whether than a penalty that would actually 
punish unfair labor practices?
    Ms. Goldsmith. Right. It has long been recognized that the 
remedial structure of the Act, as it stands, is not an 
effective deterrent to unfair labor practices. Those many 
employers are just willing to even flagrantly violate the Act 
because they know that they are going to get what they want in 
the short term, and there will not be really any serious 
consequence.
    Mr. Scott. How often does that happen?
    Ms. Goldsmith. I mentioned some statistics in my written 
testimony that it happens with alarming frequency in election 
cases.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Burlison. Thank you. The Chair now recognizes our 
Chairwoman, Dr. Foxx, for 5 minutes of inquiry.
    Mrs. Foxx. Thank you, Mr. Chairman. Mr. Ring, this 
Committee has extensively investigated the NLRB's misconduct, 
and procedural irregularities in the administration of mail 
ballot elections. During the investigation one thing became 
clear, the NLRB consistently failed to administer mail ballot 
elections properly.
    On June 7th, the NLRB Inspector General released an audit 
of NLRB mail ballot elections with similar findings. As former 
NLRB Chairman, what would your response have been to the 
misconduct, and procedural irregularities that have been 
discovered in the administration of mail ballot elections?
    Mr. Ring. Well, thank you, Chairwoman Foxx, and thank you 
for your leadership when I was Chairman, I appreciate it very 
much. The IG report confirms something I think we've all known, 
and that is that mail ballot elections are not as reliable as 
the manual elections that have been held in person, and that is 
because these mail ballot elections are difficult to 
administer, and susceptible to irregularities.
    If I were confronted with the IG report, and with the work 
that this Committee has done on the irregularities with the 
manual elections, I would immediately stop mail ballot 
elections until we figured out what was the problem, what the 
problem was.
    During COVID we had to implement mail ballot elections 
because we had no choice. That revealed a number of issues with 
mail ballot elections that this Board has been slow to make 
right back to the solely using manual elections, except in 
extraordinary circumstances. I would stop that until we could 
fix it.
    The other thing I would say is, as Chairman, I viewed the 
role as making sure that the public, and our stakeholders had 
confidence in our process. It is important that the Chair, I 
always thought, made clear to the public what they were doing, 
how they were going to fix the problem, so the public could 
have confidence in the integrity of the Board's processes.
    Mrs. Foxx. Thank you very much. Ms. Stock, your written 
testimony notes that it is the NLRB's responsibility to 
administer the National Labor Relations Act by interpreting the 
law, and ``coloring in the lines,'' not changing the law. What 
is an example that Chairman McFerran's board changing the law, 
rather than merely coloring in the lines?
    Ms. Stock. Thank you, Chairwoman Foxx. There are a number 
of decisions in which this Board has done that. Key examples 
are Cemex and the Tesla case. In Cemex, the Board created a new 
rule that effectively eliminates the secret ballot election. 
The Board has essentially amended the text of the NLRA so as to 
trigger what is called major question doctrine.
    Under that doctrine, an agency may not make an 
adjudication, or issue a rule that is contrary to, or beyond 
the statute. Only Congress has the authority to make that type 
of change. Similarly, in its Tesla decision, which was a 
decision that changed decades long old rules about the ability 
of employers to have a uniform policy, the Board completely 
changed the rule, and said that any uniform policy that could 
interfere in any way with an employee's right to display union 
insignia is unlawful.
    Thus, making every facially neutral nondiscriminatory 
uniform policy unlawful.
    Mrs. Foxx. Thank you. Mr. Seaton, under Chairman McFerran's 
leadership, the Board has issued numerous decisions that tip 
the scales in favor of unions over the rights of employees and 
employers as Ms. Stock is alluding to.
    Can you discuss whether Congress enacted the National Labor 
Relations Act, and created the NLRB to serve labor union 
interest?
    Mr. Seaton. Thank you. Thank you, Chair Foxx. I would say 
no, that is not what they did. It is only in part what they 
did. They created a system that is designed to be balanced to 
create unity in the country to avoid industrial turmoil, and to 
give us a system of checks and balances in which employee 
rights are central, union rights are recognized, and employer 
rights are recognized.
    I am afraid we have tipped the balance significantly under 
the current Chair in the wrong direction.
    Mrs. Foxx. Thank you very much. Mr. Chairman, I ask to 
enter into the record letters from the following organizations, 
highlighting NLRB Chairman McFerran's disastrous record. The 
Coalition for a Democratic Workplace, the Institute for the 
American Worker, and the National Right to Work Committee.
    Mr. Burlison. Without objection.
    [The information of Mrs. Foxx follows:]
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    Mr. Burlison. The chair, pursuant to previous order, the 
Chair declares the Subcommittee in recess, subject to the call 
of the Chair for votes on the House floor. We will reconvene 
immediately following the last vote of the series. Please 
return to the hearing as quickly as possible, so the 
Committee--until then the Committee stands in recess.
    [Recess.]
    Chairman Good. The Subcommittee will reconvene and come to 
order following our recess. I recognize Ms. McBath for 5 
minutes.
    Mrs. McBath. Well, thank you so much. I appreciate it, Mr. 
Chair, and Ranking Member DeSaulnier, and your staff, and to 
our witnesses today. Thank you for being with us today. I have 
read your testimoneys. This is the sixth anti-worker hearing 
held by the Majority this Congress, and we had the fifth just 3 
weeks ago.
    I am sure as the surge of successful organizing continues 
around the country, we will continue to see more efforts to 
undermine Americans' rights in the workplace. Regardless of 
what may be said at these hearings, or how hostile to unions 
the Majority may be, the first section of the National Labor 
Relations Act clearly states that it is, and I quote, ``The 
policy of the United States to encourage the practice of 
collective bargaining and freedom of association.''
    That is opposite of what we are seeing from the Majority 
this Congress. Instead, we see efforts to change the status 
quo, alter the rules, and make it as difficult or uncomfortable 
as possible for working men and women in this country to 
exercise their rights. My colleagues claim outreach by the 
Biden administration but applauded when former President Trump 
attempted to issue more anti-worker rules at the National Labor 
Relations Board than had been issued in the 30 years preceding 
his time in office.
    The fact of the matter is that this administration is 
expanding the role of workers on the job and truly living up to 
the original intent that Congress had when it comes to 
collective bargaining. Instead of changing the rules to make it 
harder for workers to organize and more difficult for companies 
to voluntarily recognize a union, we should be ensuring that 
every American can freely exercise their rights in the 
workplace without the fear of being fired and losing their 
livelihood.
    The continued villainization of organized labor before this 
Committee is simply wrong, and it is critically important that 
we fully fund the National Labor Relations Board, pass the PRO 
Act, and fight back against these misguided attacks on working 
families. American families deserve better, and I yield the 
balance of my time.
    Chairman Good. Thank you, Ms. McBath. All right. I now 
recognize myself for 5 minutes. Mr. Seaton, Chair McFerran's 
Board authored a concerning decision, as I am sure you know, 
that protects employees who harass others. The Lion Elastomers 
decision permits offensive and disrespectful conduct when it is 
related to union organizing. The Lion decision restored the 
setting specific standard. Can you explain the history behind 
the standard and what it means?
    Mr. Seaton. Thank you, Mr. Chairman. Yes. The standard that 
is being utilized in this case is one which would permit, I 
guess what we would call, misconduct, against other employees 
on the part of union partisans in the workplace. Within limits, 
that is an understandable rule.
    What has happened in this case with respect to the current 
Chair's activity at the Board, is that the rule has been 
extended to the point where insults that are basically sexist, 
discriminatory, racist, homophobic, those attacks can be 
permitted if they occur within distance of any union organizing 
activity. That standard is I think an unfortunate one.
    It is not one consistent in my view with the purpose of the 
National Labor Relations Act. It runs afoul of Title VII, and 
it puts employers at risk because they are unable to discipline 
appropriately in the workplace in situations where they should 
be able to, and it essentially enables bigots in the workplace.
    Chairman Good. Yes. It would make it harder for employers 
to discipline their employees for abusive or profane behavior, 
and it would help foster a hostile work environment, which I 
think actually that is what union organizers want. They want a 
hostility toward the employer, toward management, toward the 
organization, toward the company, that is why it is a very 
unhealthy thing, I would suggest generally.
    The Lion decision puts the National Labor Relations Act in 
conflict with civil rights law, like Title VII7 of the Civil 
Rights Act of 1964, which as you know, prohibits workplace 
discrimination based on race, color, religion, sex, national 
origin, and under this law employers can be held liable if they 
permit discriminatory behavior, including harassment.
    Would you agree then with the premise that Federal 
discrimination law makes an exception for harassment if it is 
part of union activity? Do you think there is an exception for 
that?
    Mr. Seaton. No. I do not believe Title VII creates any such 
exception, so there is a real conflict here between the 
agencies and the statutes, and I think in this case that is not 
how I view the National Labor Relations Act in any event. I 
think that is an improper reading of the statute, and the 
rights it confers, and I think the Board should retreat from 
this extreme position.
    Chairman Good. Yes. Going far beyond, of course, or outside 
of what Congress intended of course, as has been stated by our 
witnesses already today. For--to change the subject on secret 
ballots, for 90 years the primary manner of exercising employee 
rights under the NLRA has been the opportunity to vote in NLRB 
conducted secret ballot elections, which determines whether the 
employees have union representation.
    The 2023 decision in Cemex Construction materials Pacific 
case undermines this right, despite again Federal Courts, and 
NLRB, long preferring the use of secret ballot elections to 
determine whether the majority of employees support union 
representation. Can you discuss the Cemex case, how it 
undermines the NLRA?
    Mr. Seaton. Yes, Chairman, thank you. What has been said 
earlier in the witness testimony is accurate, and that is that 
though the decision does not quite undermine, it does not quite 
overrule secret ballot elections. It goes a long way toward 
undermining them, because it allows what we call card shack, 
essentially union promoted majorities that are really not 
majorities at all to be recognized by an employer under many, 
many circumstances.
    It puts the burden on the employer to respond to a claim of 
union majority status when that should be tested by a genuine 
secret ballot election. That is extremely important when we 
have what I call the right to lie rule, applicable to union 
activity in the workplace because the unions can promote 
themselves in the workplace with lies, and they do, frequently.
    It is not that employers are blameless. In many cases they 
have to be sanctioned too, but employee partisans of unions can 
lie, and the result of that is you have to have a secret ballot 
election with real campaigning to give employees information to 
make a fair and genuine decision on whether they want to be 
represented or not.
    Chairman Good. Secret balloting is a foundation of all free 
and fair elections, are they not? Thank you very much. I yield 
the remaining amount of my time and will recognize 
Representative Houchin for 5 minutes.
    Ms. Houchin. Thank you, Mr. Chairman. Thanks to the 
witnesses for coming to testify today. You have been here a 
long time. We have had a thorough discussion on the abuses of 
the National Labor Relations Board many times already this 
Congress, so I am going to just jump right in.
    Mr. Ring, last year the NLRB issued the Joint Employer 
Final Rule, which upends the traditional direct and immediate 
control standard, and creates an expansive and vastly costly, 
very vague standard. This past March a Federal District Court 
struck down the rule because it exceeded NLRB's authority. The 
House and Senate have also passed a congressional Review Act 
resolution to nullify the rule this year.
    Despite a Federal Court striking down the rule, and 
Congress expressing its disapproval, the NLRB decided to appeal 
the Court's decision, striking down the Joint Employer Rule. 
Mr. Ring, as a former NLRB Chairman, would a bipartisan, and 
bicameral rejection of a rule, along with a Court decision 
knocking down the rule, would have been some of your 
considerations on whether or not to pursue an appeal?
    Mr. Ring. Thank you for the question. I believe that we, as 
an NLRB member, you are supposed to stay within the confines of 
the statutes, and if Congress bicameral, and with one of those 
changes being the party of my party, if rejected the joint 
employer standard repeatedly because courts have struck down 
the standard before, I think that that would make me rethink, 
go back to the drawing board and think about what the standard 
should be.
    I will say when I was Chairman, we issued in 2020 a joint 
employer standard that was consistent with account of law, was 
consistent with what the courts had asked for, and has not been 
overturned, so I think that is--I think it is perplexing why 
the Board continues to appeal that decision.
    Ms. Houchin. It looks like the Board's choice to spend a 
considerable amount of time in these overreaching decisions 
that have been described by the Federal Courts as illogical, 
irrational, and nonsense, have also resulted in the NLRB 
wasting funds and wasting time, and wasting man hours.
    Their irrational focus on the Joint Employer Rule has 
resulted in case backlogs at the NLRB that have increased to 
17,682 in Fiscal Year 2023, an increase of approximately 8,500 
since Fiscal Year 2020. Ms. Stock, can you discuss the Board's 
mismanagement of the case processing in its current backlog 
status?
    Ms. Stock. Yes, thank you very much. The Office of 
Inspector General issued a report in 2024 on performance-based 
staffing at the NLRB. The report found that despite a decline 
in case intake, the time to issue complaints from the filing of 
the charge increased.
    The NLRB Inspector General found that the methodology that 
the NLRB used to assign field staff did not meet government 
wide guidance, lacked an appropriate system of internal 
controls, and as a result the agency is at risk of not 
allocating FTEs in the field offices in a manner that would 
ensure that meets its goals and objectives.
    It is confirmed by the OAIG staffing report, the increase 
in case processing time and backlogs are not due to an increase 
in case intake, but a failure to properly manage its caseload. 
The case backlog figures concern mismanagement, both on the 
Board side, as well as the General Counsel side. In 2019, 
former Chair John Ring, and former General Counsel Peter Robb, 
made reducing case backlogs a priority.
    In 2019 they did reduce the case backlog. Under the current 
Board and General Counsel, the backlog started increasing 
immediately, and reached 13,513 in fiscal 2022 when the case 
intake was at its lowest, one of its lowest in NLRB history.
    Ms. Houchin. My time is expired. Thank you so much.
    Chairman Good. Now, I would like to recognize the Ranking 
Member from California for 5 minutes.
    Mr. DeSaulnier. Thank you. Ms. Goldsmith, you have been 
representing clients in front of the Board for 20 years. Is, 
from your perspective, is the current Biden administration 
Board radically changing policy or are we just, the ebb and 
flow of 20 years, seeing different Boards from different 
administrations, from my perspective, and certainly I think 
from this side of the aisle's perspective, the previous 
administration, Trump Board was the more extreme.
    We are just trying to get that balance I talked about in 
our opening statement, which with all due respect, we can have 
that good debate about employer rights balancing employee 
rights. From my perspective in history, given our inequality 
and other issues, our diminishing middle class, are we just 
going back through that from your perspective of 20 years of 
being in front of the Board?
    Ms. Goldsmith. Thank you for that question. In many 
instances where the current Board has overruled decisions of 
the Trump Board, the current Board is restoring the law that 
had been in effect, in some cases, for decades before the Trump 
Board rushed to overrule that law.
    By contrast, this Board has been very deliberative in 
deciding whether or not to overrule prior decisions. If you 
look at the cases where the Trump Board was overruling prior 
decisions, they were overruling lines of authority going back, 
in some instances to the 1940's, that had been repeatedly 
affirmed in the courts.
    To take just a couple of examples, Mr. Ring has been 
discussing the General Motors case decided under the Trump 
Board. That case overturned decades of Board precedent, going 
back to the 40's, about situation-specific standards for when 
employees allege misconduct in the context of protected 
activity becomes unprotected.
    The Trump Board actually reached out to overrule lines of 
authority that had nothing to do with the facts of the case. If 
you want to talk about a Board that was in a hurry to overrule 
cases it did not like, that was what was happening at the Trump 
Board. The Biden Board in Lion Elastomers went back to those 
old lines of authority that have stood the test of time in the 
courts.
    To take another example, this Board recently decided a case 
called Stericycle about workplace rules, and it overruled the 
decision of the Trump Board called Boeing Company, in which the 
Trump Board actually overruled the decision of the George W. 
Bush Board in 2004, which set the standard for evaluating when 
work rules would reasonably tend to chill workers' exercise of 
their Section VII rights.
    Again, Lutheran Heritage's approach, that 2004 case, was 
upheld in every court to consider the matter, yet the Trump 
Board had reached out to overrule it in Boeing. The Biden 
Board's decision in Stericycle reinstates that standard from 
2004, clarifying that rules should be evaluated from the 
perspective of a reasonable employee.
    Yes, those are some examples of how the Biden Board is 
resetting back to what the law had historically been.
    Mr. DeSaulnier. Let us talk about the previous questions 
about just not just the regulations, but how they are enforced. 
An Economic Policy Institute calculated that in 2023 there was 
only one full-time NLRB employee for every 90,672 workers under 
the Board's jurisdiction.
    To put that in context, that is 20,000 more workers per 
NLRB than when Trump first took office, and 10,000 more NLRB 
employee than when Trump took, lost office. It is not just the 
Heritage and the Koch Brothers' 30-year attack on workers' 
rights in the Environmental Protection Agency, in terms of 
regulations and statutes, it is the money.
    We could be more efficient. Again, we could have that 
argument about how we--I am a liberal libertarian I like to 
say. I do not think government is a good enforcer, necessarily, 
of ethical behavior, but not funding the department also has 
consequences, and it empowers employers who are not ethical to 
only have allegiance to the bottom line.
    Could you speak to your experience in terms of just 
efficient enforcement of the regulations?
    Ms. Goldsmith. Absolutely. It does not serve anyone's 
interests in this system for the agency to be underfunded and 
unable to carry out its mission. That is not good for workers, 
that is not good for unions, that is not good for employers. I 
think everyone in this system has a significant interest in the 
agency being able to do its job.
    Mr. DeSaulnier. Thank you. I yield back.
    Chairman Good. Thank you, Mr. DeSaulnier. I now recognize 
myself for closing remarks. Today we have heard how Chairman 
Lauren McFerran's tenure at the National Labor Relations Board 
has diminished, and dismantled the workers' rights, and 
disregarded harmed employers, as we have heard.
    My apologies, I am going to let you go ahead and finish, 
and do your closing remarks first, Mr. DeSaulnier. I went from 
your questions right to closing, so.
    Mr. DeSaulnier. I am fine with either. I can be the last 
speaker. We disagree on policy, but we do not disagree 
personally, which you know, I think the way we should work in a 
civilized democracy or republic. Thank you, Mr. Chairman. Thank 
you to our witnesses for your testimony today.
    Throughout American history, labor unions have served as 
engines of economic growth and positive change for the working 
class. They are human institutions, just like corporations, and 
they are imperfect, but they have served a very important role 
in the success of this country.
    The surge in support for unions among American people is 
undeniable. The workers across the Nation are united to 
advocate for higher wages, better benefits, and safer 
workplaces. Under President Biden's and Chair McFerran's 
leadership, the NLRB has reinstated precedent and restored 
balance for workers. It is not an extreme Board from my 
perspective, or from a historical perspective.
    These actions aim to prevent employers, or I should say, 
unethical employers, not all employers, from infringing on 
workers' rights without repercussions. This is in contrast with 
the Trump-era NLRB, and I ask unanimous consent to enter into 
the record an October 2020 report from the Democratic Committee 
Staff entitled, ``Corruption, Conflicts, and Crisis: The NLRB's 
Assault on Workers' Rights Under the Trump Administration.''
    This staff report outlines various anti-worker attacks by 
the Trump-era Board.
    Chairman Good. Without objection.
    [The information of Mr. DeSaulnier follows:]
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 


    Mr. DeSaulnier. Unfortunately, this is the HELP 
Subcommittee's sixth hearing this Congress, and the second one 
in less than a month that attacks workers' rights to organize 
and collectively bargain.
    The American people deserve better. We should instead be 
focusing on strengthening those rights and fostering economic 
growth for everyone, from the bottom up and the middle out. I 
want to thank all the witnesses for being here, and I yield 
back.
    Chairman Good. Thank you. I now recognize myself again for 
my closing remarks and appreciate the grace of our Ranking 
Member here. Today again, we have heard how Chairman Lauren 
McFerran's tenure at the National Labor Relation's Board has 
diminished and dismantled worker's rights and disregarded 
harmed employers.
    As we have heard today, she holds the distinction of 
providing over the most partisan NLRB in history. This Board 
can claim all of the ing dubious actions during her time. They 
have expanded the definition of joint employer, so that more 
workers can fall under collective bargaining agreements, 
attacked independent contractor status to keep more workers 
classified as employees, and thus able to be unionized.
    Dismantle the right to secret ballot elections, protected 
harassment as appropriate behavior, and required employers to 
continue deducting union dues even after the expiration of a 
collective bargaining agreement. No doubt the courts will 
ultimately overturn many of these unlawful decisions, but 
Congress should not rely solely on the judicial branch to 
confront this overreach.
    I hope my colleagues in the Senate will take the time to 
thoroughly review and consider Chair McFerran's legacy, while 
they determine her ability to continue her position on the 
Board. I want to thank again our witnesses for taking time to 
travel here today, and to share your expertise, and to bear 
with us through the disrupted hearing for Committee votes, our 
floor votes, and without objection there being no further 
business, this Subcommittee stands adjourned.
    [Whereupon, at 11:55 a.m., the committee was adjourned.]