Kennedy took the gavel at a joint session of the House and Senate labor committees when House members departed for a vote. His brief leadership of the hearing on recent decisions by the National Labor Relations Board was more than a Capitol oddity.
It drove home the point that Democrats are upset with NLRB rulings they believe are curtailing unionization and collective bargaining. Among the witnesses Kennedy and his colleagues grilled was NLRB chairman Robert Battista.
Battista appeared before the committees just two days before his term expires. There is no word yet from the White House whether he or two other board members whose appointments will run out when Congress breaks for the holidays will be nominated again to serve.
But when they or their replacements are selected, they should be fully scrutinized by the Senate rather than slipped onto the NLRB through a recess appointment, said Rep. Robert Andrews, D-New Jersey and chairman of the House labor subcommittee hosting the hearing.
Andrews believes several September NLRB decisions reflected an ideological bent of the quasi-judicial agency’s three-Republican majority to limit unionization.
So Andrews invited his Senate colleagues to the hearing to demonstrate that NLRB positions should go through the regular Senate confirmation process.
“This should send a message to the administration—recess appointments are off limits,” Andrews said in an interview after the hearing. “Recess appointments would subvert the role of the Congress.”
The focus of the hearing was several NLRB decisions in September, a month in which the board decided 70 cases. One that drew particularly strong Democratic ire involved Dana Corp.
The board ruled 3-2 that following union certification through a voluntary card-check process, employees have 45 days to file a petition for a vote on decertification. The vote would occur if 30 percent of workers back it.
Union advocates say the decision undermines voluntary recognition of unions and is one of many indications that the board majority is fundamentally anti-union.
“The board is notorious for its seesawing with every change of administration,” said Wilma Liebman, a Democratic member of the board. “But something different is going on—more ‘sea change’ than ‘seesaw.’ ”
She asserted that Republican appointees give more weight to business prerogatives and to the right of workers not to form a union than they do to supporting collective bargaining.
“It’s the first time the NLRB has ranked statutory priorities in that way,” she said. “In some ways, it seems, labor law has been turned inside out.”
Battista rejected the notion that the NLRB undermines unionization. He said that the agency has collected $110.3 million in back pay in the current fiscal year and has reinstated 2,456 employees. Over his five years as chairman, $604 million has been collected in back pay and 13,279 employees have been reinstated.
He also said 2,439 election petitions were filed in the last fiscal year and 1,559 elections conducted, with 93 percent being held within 56 days. Unions won 54 percent of the time.
Battista also said that during the course of his chairmanship, the NLRB backlog has been reduced from 621 to 207 cases. He denied that the September rush was unusual. In fact, the 70 cases decided this fall were the second fewest in the past five years.
He said the board does not take sides between workers and companies, but tries to ensure employees can freely choose or reject a union. If they embrace representation, the board “encourages collective bargaining,” he said.
“The law is neutral and so is this agency,” he said. “We’ve done a good job making the agency more productive and efficient. The vast bulk of our unfair labor disputes are dismissed or settled very early in the game.”
In response to criticism from a House Democrat, he said, “We may not be champions to the unions, but we’re certainly champions to the employee.”
Democrats took sharp exception. “This board has undermined collective bargaining at every turn,” Kennedy said.
He and other Democrats asserted that increasing the number of people in unions will foster higher wages and more generous benefits.
“The decline of the middle class in this country is the result of the decline of unions in this country,” said Sen. Sherrod Brown, D-Ohio. About 12 percent of U.S. workers are part of a union.
Republicans, however, criticized the Democratic majority for holding the hearing because it encroached on the judicial branch of government. They also implied that the meeting served to amplify union attacks on the board.
“Today’s hearing is little more than hollow political theater,” said Rep. John Kline, R-Minnesota.
It’s too early to tell whether Democrats will draft legislation to overturn recent NLRB decisions.
“I would want to reserve judgment on that,” Andrews said.