US Senate Committee on Health, Education, Labor, & Pensions

Statement of Senator Tom Harkin (D-IA) at the HELP Committee Hearing: “National Labor Relations Board Nominations”

*As Prepared for Delivery*

Thursday, May 16, 2013

“Over 75 years ago, Congress enacted the National Labor Relations Act, guaranteeing American workers the right to form and join a union and bargain for a better life.  For both union and non-union workers alike, the Act provides essential protections – it gives workers a voice, and the ability to join together and speak up for fair wages, good benefits, and safe working conditions.  These rights are one of the pillars of our middle class, ensuring that the people who do the real work in this country see the benefits when our economy grows.

“The National Labor Relations Board is the guardian of these fundamental rights.  Workers themselves cannot enforce the NLRA – the Board is the only place workers can go if they have been treated unfairly and denied the basic protections that the law provides.  Thus, the Board plays a critical role in vindicating workers’ rights.  In the past 10 years, the NLRB has secured opportunities of reinstatement for 22,544 employees who were unfairly fired.  It has also recovered more than $1  billion on behalf of workers whose rights were violated. 

“The Board is just as essential for our nation’s employers.  If an employer, for example, is the victim of a wildcat strike, or is in negotiations with a union and can’t get the union to bargain in good faith, the Board is their only recourse.  And the NLRB has helped numerous businesses resolve disputes efficiently. 

“Because this agency is absolutely critical to our country, to our economy, and to our middle class, it is deeply disappointing to see what has happened to the Board in recent years, including the relentless political attacks endured by the dedicated public servants at the Board. To put in plainly, there are clearly many Republican elected officials – I’m not saying all Republicans, but certainly a sizeable group – who are actively trying to shut the NLRB down.

“In 2011, when the Agency needed new Board Members to satisfy its quorum requirements, instead of working with Democrats to confirm a bipartisan package of well-qualified nominees, prominent Republicans publicly announced their intention to block any nomination to the NLRB.  In a well-publicized statement, one of my Republican colleagues said he would filibuster even if this caused the agency to cease functioning altogether.  As he put it: “The NLRB as inoperable could be considered progress.” 

“It didn’t used to be this way.  We used to understand and acknowledge that members of the Board had differing views and ideological perspectives, but all of us agreed that the Board itself should function for the good of our country and our economy.  But in recent years, that shared understanding has broken down.  The Board has not had five Senate-confirmed members in a decade.  In my view, that speaks a lot more to our dysfunction here in the Senate than to anything the Board itself has done.

“But what most concerns me is how this political game-playing is impacting the everyday lives of working people across America.  Whether it is the relentless filibustering of nominees that prevents the Board from having a quorum, or ceaseless litigation that delays and denies justice, these attacks on the Board have real consequences for real people.

“The litigation surrounding President Obama’s recess appointments, for example, has impacted countless working Americans – people like Marcus Hedger, a former printing pressman from Lake Villa, Illinois.  Marcus worked for a printing company for 9 years, serving as union steward for most of his time there.  In 2010, when the company was about to be sold, the owners cracked down hard on Marcus for his role in collective bargaining negotiations, and he was fired. A unanimous bipartisan panel of the National Labor Relations Board determined in September 2012 that Marcus was unlawfully fired and ordered that he be reinstated with back pay.  But the company appealed that decision to the U.S. Court of Appeals for the D.C. Circuit, and in January the case was delayed due to the recess appointment litigation, leaving Marcus without any recourse.  Almost three years since his claim was filed with the Board, Marcus is still looking for justice.  He doesn’t have his job back, and the only job that he could find pays only one-third as much as his previous one.  Because of this financial hardship, Marcus just lost his home to foreclosure.  And this wasn’t just any home, it was Marcus’s dream home – the home he and his family and scrimped and saved for their entire lives.  It was his slice of the American Dream – and it is lost, through no fault of his own, because the system is broken and couldn’t protect his rights. 

“And let’s be clear about why Marcus was fired.  He was fired for participating in collective bargaining -- a process that our nation’s laws protect and encourage.  I have often quoted from the National Labor Relations Act on this point, and I will do so again today.  The Act states:

It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self- organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.

“I am proud to be a citizen of a country that encourages collective bargaining.  If my colleagues don’t share this view, well then they should be honest about their intentions and simply try to repeal the National Labor Relations Act.  That would be a much more appropriate than constantly using procedural tricks, political obstructionism, and budget game-playing to try to destroy the agency’s ability to do the job that it is required by law to do.

“Three people sitting before us today have been dedicated and even courageous in fulfilling the duties they have sworn to carry out as members of the Board, despite constant political interference and even personal attacks.  The other two nominees before us, today, have commendably accepted the President’s call to serve, and are eager to join the Board, even in these tumultuous times. 

“These are five incredibly well-qualified candidates for the National Labor Relations Board.  They come from diverse backgrounds, but all are deeply steeped in labor or employment law and would bring rich experiences to the Board.  I certainly don’t agree with the politics or ideology of every candidate sitting before me, but it cannot be disputed that this is a highly skilled, competent, and experienced panel of labor or employment law experts.  They deserve to be confirmed.  They should be confirmed.

“A letter I recently received from 32 management-side and 15 union-side labor attorneys from across the country made this point better than I can.  It urged the swift confirmation of the full package of five nominees and said “while we differ in our views over the decisions and actions of the NLRB over the years, we do agree that our clients’ interests are best served by the stability and certainty a full, confirmed Board will bring to the field of labor-management relations.”  I couldn’t agree more. 

“I was heartened to hear Ranking Member Alexander state on the floor of the Senate a few months ago that he wants to confirm a full package of Board nominees.  I take him at his word, and I know Leader Reid does as well.  So I hope his colleagues share this view, and that we can finally put partisan politics behind us and confirm a full package of five members to the National Labor Relations Board.”

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