House Committee on Education and Labor
U.S. House of Representatives

Good morning, Mr. Chairman.

In the past eleven months, this Subcommittee, under your leadership, has had the opportunity to engage in numerous examples of good faith, bipartisan oversight and legislating. Sometimes we have agreed on solutions, and other times we have not.  But even when we haven’t, no one has doubted our good faith commitment to truly and responsibly examine the issues.  

Sadly, it is clear this morning that today’s hearing is not one of those exercises.  Indeed, today’s hearing is little more than hollow, political theater.  

I expect we’ll hear a number of ominous sounding accusations this morning.  No doubt we will hear about how the National Labor Relations Board under Chairman Battista issued SIXTY-ONE cases this last September, and how this represents some eleventh-hour, last ditch effort by the Board to “stack the deck” and roll back worker rights and protections as the Bush Administration enters its final year.  Somehow that number is given great significance – SIXTY-ONE cases decided in a single month.  

What we will NOT hear is that a high number of decisions being issued by the Board in September – the final month of its fiscal year – is not at all uncommon.  During the Bush Administration, the Board has issued as few as 54 decisions in September of 2005, and as many as 114 in September of 2004.  Equally important, by way of comparison, from 1994 to 2000, the Clinton-Era Board’s number of September decisions ranged from a low of 53 to a high of 104, with more than 61 decisions handed down in all but one year. To suggest that 2007 marks some watershed year is to ignore history and fact.

I expect that we’ll hear claims from the Majority that this Board has sided always with employers and uniformly against workers and organized labor.  The accusation contradicts the facts.  Indeed, I can speak first hand to an issue of great importance in my district – the Board’s decision in San Manuel Indian Bingo and Casino – which expanded the rights of unions to organize workers on sovereign Indian lands.  As the sponsor of legislation to overturn this decision – which I strongly believe unfairly impinges on tribal sovereignty and tribal employers to the benefit of organized labor – I can tell you without a doubt that this Board has been far from a rubber stamp for management.  But I expect that is what we will hear today.

Sadly, this conflict between rhetoric and reality is not surprising to anyone who has observed our Committee as it delves into these issues, particularly where organized labor holds sway.  

We heard it in 2004, when the Bush Administration undertook the most comprehensive overhaul of our nation’s overtime regulations in fifty years.  We heard from organized labor and their think tanks that 8 million workers would lose overtime protections overnight and be left out in the cold.  

There’s just one problem:  it didn’t happen.

We heard it with respect to decisions on who is and who is not considered a supervisor under the NLRA.  We heard that the Board’s decision in the Kentucky River cases would reclassify 1.4 million employees as supervisors and strip 8 million more workers of the right to unionize.  

There’s just one problem:  it didn’t happen.

And I expect that we will hear more than once today that this decision or that one issued by the Board will strip millions of workers of protection, or deprive workers of the right to join a union – a right most of them are glad to forfeit these days.  

But if history is any guide, there will be just one problem:  it won’t happen.

A question that I believe needs to be answered is this: why are we here today?  Make no mistake:  I fully endorse the proposition that this Committee and its subcommittees has not only the right but the obligation to engage in vigorous oversight of the laws within our jurisdiction, and the agencies and departments which administer them.   I am deeply concerned, however, when this Committee uses its hearing power, cloaked in the garb of “oversight,” to bring before us sitting adjudicators for the purpose of questioning or even attacking decisions with which the Majority disagrees.  This hints at the types of abuse of power this Board is meant to prevent, not be subject to.

I expect that almost every case we discuss today – certainly any issued by the Board only weeks ago – is still an active, pending matter being adjudicated in the court system.  The decisions of the Board are reviewable and enforceable by the federal circuit courts of appeals, and ultimately, the U.S. Supreme Court itself.  I expect many of the cases we’ll discuss this morning will be back before the Board in some form or fashion.  

In that light, it is plain to me that today’s hearing runs the real risk of appearing to suggest how the Board should adjudicate those cases in the future.  It is a well-established tenet of federal law and jurisprudence that federal courts do not render “advisory opinions” nor do they opine on facts not before them.  

I would urge both Republican and Democrat witnesses from the Board to be mindful of that fact this morning, and expect that my colleagues will not ask, nor will witnesses offer, conclusions as to hypothetical matters that could come before the Board in the future, or opinions on facts and fact patterns that were not presented in the cases before them.

Finally, since I expect we will hear more than our fair share of hyperbole and rhetoric today, I want to make clear, on the record, that this morning’s hearing in no way reflects any formal finding of Congress or of this Committee.  It is important to be clear that nothing said here today, whether by witnesses or by Members, should be construed as precedent, or as evidence of the intent of Congress or the meaning of any case or statute.

I would close with an observation made in this Committee ten years ago:  

Intentional interference in the judicatory activities of an independent agency, if indeed that was the majority's intent, is not simply inappropriate, it is an improper abuse of the subcommittee's oversight responsibilities.

Those words ring true today, as we take the unprecedented step of compelling sitting Members of the Board to offer testimony on pending cases.  I could not agree more, and would associate myself with those remarks, made ten years ago by another one of our distinguished colleagues from New Jersey, a member of the full Committee Mr. Donald Payne.  His words of caution and condemnation in 1997 are even more applicable to the hearing before us this morning.

With that, I yield back.

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