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Committee Statements

Roe Statement: Hearing on “Expanding the Power of Big Labor: The NLRB’s Growing Intrusion into Higher Education”

As prepared for delivery.

We continue to learn a great deal through this committee’s oversight of the National Labor Relations Board. We have learned the NLRB is utterly determined to advance a culture of union favoritism, regardless of the costs imposed on workers and employers or the damage inflicted on its own credibility.

We’ve learned a growing number of courts are rejecting the NLRB’s policies. Just last week, a federal judge stopped an NLRB effort to overturn the will of Arizona voters who moved to protect workers’ right to a secret ballot union election. The courts have also thrown out the board’s ambush election scheme as well as its plan to force employers to promote unionization in the workplace. And a federal appeals court rightly ruled against the NLRB’s attempt to dictate the dress code of Starbucks employees.

Without question, the NLRB’s activist agenda is out-of-step with the needs and priorities of middle class Americans. Approximately 23 million workers are struggling to find full-time jobs, while roughly one out of every two college graduates are unemployed or underemployed. Perhaps dissatisfied with its efforts to reshape America’s workforce, the NLRB is now exploring actions that could bring significant changes to private higher education institutions.

In 2004, a decision known as Brown University restored labor practice governing graduate students that had been in place for decades, which viewed graduate assistants as students and not employees under the National Labor Relations Act. Now, without any new facts or compelling reason, the board is reconsidering that decision and contemplating whether to abandon policies that have helped advance the learning experience of graduate students nationwide.

The board has also invited legal briefs to reexamine whether university faculty are considered employees under the National Labor Relations Act or instead fall under the law’s managerial exception. According to leaders in the higher education community, approximately 90 percent of four-year institutions have faculty boards that play a critical role in institutional governance. The board’s decision could upset how a vast majority of institutions are managed across the country.

Perhaps most disturbing is the NLRB’s growing challenge to religious freedom. Over the last year, the NLRB applied an invasive test to determine whether three Catholic universities were “religious enough” to be exempt from federal labor law. It is simply unacceptable to allow the NLRB to judge whether a private academic institution has sufficient religious character. A court has outlined a clear standard to determine whether federal labor law applies to an institution that professes a religious faith, a standard that adheres to Supreme Court precedent and the First Amendment. It is time the NLRB applied the court’s standard and ended the uncertainty facing religious institutions.

I suspect some of our colleagues will decry today’s hearing and suggest we are sounding alarms over a crisis that doesn’t exist. Again, I would ask my colleagues to consider what we have learned over the last two years. The NLRB has made its agenda clear. Routine cases involving a single workplace have been hijacked in order to impose sweeping changes on all workplaces. It would be foolish to consider each of these issues in isolation. Instead, they should be viewed in the broader context of the NLRB’s activist agenda.

The board’s ambush election scheme would leave graduate students – struggling to keep up with their studies and the demands of their professors – just 10 days to decide whether they want to join a union. Imagine university administrators bargaining with numerous unions within their faculty, each representing a different department of professors teaching degrees in biology, business, or chemistry. Yet that is precisely the chaotic environment schools could face if the board’s Specialty Healthcare decision governs our higher education system.

This cannot be what Congress intended when it adopted the National Labor Relations Act to promote the general welfare and the free flow of commerce. Today’s hearing will closely examine these issues and whether they serve the best interests of our nation’s students, colleges, and universities.


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