Guest Post: The House Hearings on the NLRB – Not What You Learned in Your Civics Textbook

Published March 10th, 2014 -  - 03.10.1413


Andrew Strom is Associate General Counsel of SEIU Local 32BJ.

Last week, instead of watching House of Cards, I decided to watch the real Congress in action.  I sat down one night with a bowl of popcorn to watch the archived webcast of a hearing conducted by the House Education and the Workforce Committee.  You can probably tell everything you need to know about the hearing just from its title:  “Culture of Union Favoritism:  The Return of the NLRB’s Ambush Election Rule.”  But even the heavy-handed title doesn’t necessarily prepare you for the stunning lack of substance.

The way these hearings work is that the Republicans choose three witnesses and the Democrats get one witness.  Despite the numerical advantage, the Republicans always make sure that all of their witnesses toe the party line – as in Harlan County, there are no neutrals here.  One Republican witness admitted that he rejects the very premise of the NLRA.  William Messenger of the National Right to Work Legal Defense Foundation stated that even if ninety percent of workers at a workplace voted to unionize, he believes it would be illegitimate to grant the union recognition as the bargaining representative of all employees.  Each witness makes an opening statement, and then each member of the committee gets five minutes to ask questions.  The Republican members direct virtually all of their questions to the Republican witnesses.  Some Democrats on the committee cross-examine the Republican witnesses, but most Democrats limit their questions to the witness they have invited.

As I watched this charade unfold, I kept thinking that while I don’t mind my tax dollars being used to support the arts, this isn’t even good theater.  Yet, theater is the only conceivable purpose for these hearings.  Surely it would make more sense for the members of the committee to simply read the proposed rule rather than ask witnesses to describe the contents of the rule.  For instance, the proposed election rule provides that after an election is scheduled, the employer must provide all parties to the election with a list of names and contact information for the eligible voters.  The proposed rule provides that this information includes “available email addresses.”  One of the Republican witnesses, Steve Brown, the director of human resources for a chain of pizzerias with 1,200 employees, testified that his company does not collect employee e-mail addresses.  Representative Walberg then asked another Republican witness, attorney Doreen Davis, what the consequences would be if Mr. Brown’s employer didn’t have the e-mail addresses.  Davis gave a very lawyerly response, asserting that the election would be automatically overturned if the employer didn’t provide the required information.  Of course, she neglected to point out that employers are only required to provide e-mail addresses if they have them.

Another absurdity of the hearings is that each member of the committee gets only five minutes to ask questions, and most use at least part of that time for speech making.  I guess each Representative needs some time in front of the camera, but if the committee actually wanted substantive exchanges with witnesses, it would make more sense for each side to designate one or two questioners.  I know I would like to see what Representative Rush Holt would have done with more time.  He used his limited time skillfully to get the Republican witnesses to concede that they had been invited to the hearing via e-mail, demonstrating that this is a standard way that people communicate in 21st century workplaces.  I would have also liked to see the Republicans engage with the witness the Democrats invited, Caren Sencer.  Ms. Sencer, an experienced labor lawyer, did an extremely skillful job using her limited time to explain the nuts and bolts of how union elections actually work.  I’m sure she could have held her own if she was actually challenged by the Republicans, and perhaps the give and take might have shed a little more light on the subject.

I’d like to think that the public would be outraged if they realized what goes on in Congressional hearings, but the reality is that with a 13% approval rating, the public’s opinion of Congress probably can’t sink any lower.   But, even if it doesn’t change anyone’s opinion, it’s always worthwhile to pay attention to your tax dollars at work.

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