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Roe Statement: Hearing on "The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers, and Unions"
As prepared for delivery.

During the 112th Congress, oversight of the National Labor Relations Board was a leading priority for this committee. Whether through hearings, letters, or legislation, we have tried to ensure the rights of workers and their employers are protected. I realize this revealed some deep differences on the committee. However, as members of Congress we are obligated to act whenever an agency may be harming our job creators and workforce. We would be neglecting our duty if we simply looked the other way.

The power of the board affects almost every private workplace. Rest assured, the committee will continue to keep a close eye on the NLRB and do what is necessary to promote the best interests of the American people. This hearing is part of that effort. The board has recently taken steps to skew the balance of power even further toward union leaders, and such actions demand our attention.

For example, the board is making it increasingly difficult for employers to investigate possible misconduct and employee complaints. Whether it’s a worksite accident, allegation of theft, or other charge of wrongdoing, employers must be able to gather the facts and hold employees accountable. The safety and security of the workplace depend upon it.

In Banner Health and Piedmont Gardens, the board restricted the ability to keep internal investigations confidential while allowing unions to obtain sensitive statements provided by witnesses. To conduct a confidential investigation, employers will have to qualify for one of several narrow exceptions dictated by the board. Internal investigations will be stymied, business costs will rise, and employees will be harmed as potentially dangerous or illegal behavior is left unresolved. 

The board has also begun chipping away at the right of workers to not fund union lobbying. In 1988, the U.S. Supreme Court held in Communications Workers vs. Beck that workers forced to pay union dues do not have to finance a union’s political activities. The board’s Kent Hospital decision walks further away from this standard, forcing workers to cover lobbying expenses unions claim relate to collective bargaining.

The rights of workers, as well as the opinion of the nation’s highest court, are being eviscerated by the activist labor board. Today’s NLRB will go to great lengths to undermine employers, marginalize workers, and empower Big Labor. The board has even ruled that policies promoting a courteous and friendly work environment can run afoul of the law. 

While the board’s pro-union agenda is troubling, the fate of these and other decisions are now in question. A year ago, President Obama installed three recess appointments to the board while Congress was meeting regularly in pro forma session. A U.S. federal appeals court ruled in Noel Canning vs. NLRB that these so-called recess appointments are unconstitutional. As we examine the ramifications of the court’s ruling, two important points must be raised. 

First, President Obama’s recess appointment scheme was unprecedented. Presidents have been making intrasession recess appointments for decades, but while Congress was actually in recess. Comparing President Obama’s intrasession recess appointments to the past is inaccurate.

Second, partisan politics created this crisis. As 2011 came to a close, the board was on the verge of losing a quorum and falling into disarray. This could have been prevented if the president had worked with the Senate to seat qualified nominees. He didn’t. Instead, the president nominated two individuals just days before the quorum was set to expire, which is hardly enough time for the Senate to offer its advice and consent. 

Furthermore, the nomination of a Republican candidate languished in the Senate for a year – no hearing, no debate, and no vote. This one individual would have allowed the board to continue its business. Senate Democrats failed to act, a crisis emerged, and the president responded with an unconstitutional power-grab.

Workers, employers, and unions must now live with the consequences of these unfortunate events. Any recent or future decision is constitutionally suspect and open to challenge in court. Countless individuals are left in legal limbo and the rights of workers are hampered by a dysfunctional board. This is not what the law anticipates or what the American people deserve. 

It is my hope the president will right this wrong so the board can return to its work in a more responsible manner.


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