Chairwoman DeLauro Statement at Hearing on FY 2021 NLRB Budget Request

2020-03-11 10:00

Congresswoman Rosa DeLauro (D-CT), Chair of the Labor, Health and Human Services, Education, and Related Agencies Appropriations Subcommittee, delivered the following remarks at the Subcommittee's hearing on the Fiscal Year 2021 budget request for the National Labor Relations Board:

Good morning, Chairman Ring and General Counsel Robb. Welcome to the Subcommittee and thank you for joining us to testify this morning.  This is first the hearing on the National Labor Relations Board (NLRB) in five years. Today, we are examining the NLRB’s budget request for fiscal year 2021, a proposed ten percent cut of $27 million. To start, let me just say that after years of flat funding, it is my sincere belief that NLRB needs more resources, not cuts. Although this is a budget hearing, it is also our duty to conduct oversight of the resources this subcommittee provides your agency, and I have serious concerns that I plan to address today.

2020 marks the 85th anniversary of the National Labor Relations Act, a landmark law that has secured freedom of workers to represent themselves in the workplace – and the Congress designated the National Labor Relations Board to defend it. The NLRB’s role is to ensure that workers can form or join a union, be represented by that union in collective bargaining, and be free from retaliation for doing so. These are basic rights.

Sadly, the Trump Administration has been undermining protections, unions, and workers. And the Trump-controlled NLRB has been taking every opportunity to dismantle workers’ rights to organize. Some of the Board’s most egregious rulings and regulatory efforts seek to deny labor protections for thousands of workers, including:

  • The SuperShuttle decision where the Board permitted its employees to be misclassified as independent contractors on the grounds of “entrepreneurial opportunity” despite the fact that these drivers had noncompete clauses – totally undermining any entrepreneurial opportunity. This is about denying benefits.
  • The proposed graduate student rulemaking where the Board seeks to strip students of their protections under the NLRA when they perform work for the university. Between 2005 and 2015, the number of graduate teaching assistants grew by 17 percent whereas tenure-track faculty grew by only 5 percent. The increased reliance on student workers is clear as is the NLRA, which does not include students in its statutory exclusions. 
  • The Board’s new Joint Employer rule, which makes it easier for unscrupulous companies to sidestep their legal responsibility to bargain with their employees by hiding behind their contractors and subcontractors.

And I have to ask, do you believe the NLRB is an advocate for corporate interests? I will quote from HELP Committee Chairman Lamar Alexander who implored the Trump board nominees to quote, “restore the labor board to the role of a neutral umpire in labor disputes after years of the board acting more like an advocate.” With 6 major rulemaking proceedings, and 20 reversals of significant precedent, Republicans should be outraged at what an advocate for corporations the anti-worker Trump Board has become.

Then, Mr. Ring and Mr. Robb, we must also address the alarming ethics and mismanagement issues happening under your leadership.

In 2017, the Trump Board, including Board Member William Emanuel, overruled precedent established in the Browning-Ferris decision on joint employment. This was a major victory for corporations looking to shirk their labor law obligations. Mr. Emanuel participated in that decision even though his former law firm represented a party in Browning-Ferris. Ultimately, the Board’s Designated Agency Ethics Official concluded that Mr. Emanuel had a conflict of interest and should have recused himself from the case.

Mr. Ring, last year I expressed serious concerns to you about the procedures that were in place for Board members to ensure case decisions and rulemakings are compliant with all ethics standards. You assured me that you were hard at work to restore our confidence, but sadly, your November 2019 Ethics Recusal Report falls far short. Instead of showing that your Board has learned from its mistakes and intends to do better in the future, you declared that a member like Mr. Emanuel can “insist” on participating in a case even when the Agency Ethics Official finds a clear conflict of interest. Meanwhile, you would have the Office of Government Ethics (OGE) adjudicate whenever the member disagrees with the Ethics Official, but they have subsequently asked you to revise the report to clarify that members do not have a right to appeal their disagreement to OGE. The Director of the Office of Government Ethics rebuked your report and wrote quote “I am very concerned that portions of the Report characterize ethics requirements and processes in ways that could be misconstrued.”

Mr. Robb, another area of great concern is the agency’s mismanagement of federal funds and its hollowing out of the regional offices. Under your watch, the NLRB let $3 million dollars expire in 2018 and $5.7 million expire in 2019—2.1 percent of the agency’s total appropriation. Meanwhile, since fiscal year 2016, your staff have declined by 17 percent. Multiple regional director positions remain unfilled. Mr. Robb, you are wasting resources Congress provided for you to enforce the National Labor Relations Act, and this Committee is going to get to the bottom of it.

At its best, it is mismanagement, which we have condemned on a bipartisan basis. At its worst, it is woeful disregard of congressional and constitutional authority. And the result is that working people are hurt, their rights and protections undermined. We have seen regional offices understaffed, which makes it harder for workers to secure protection of their collective bargaining rights when they file unfair labor practice charges.

I was grateful to work with Ranking Member Cole and my Senate colleagues in the bipartisan fiscal year 2020 Labor-HHS bill to include language that addresses significant underspending on personnel costs by directing the Board to expand the number of regional staff beyond the amount that were on-board at the end of fiscal year 2019. I intend to learn how your agency is planning to comply with this directive. And as you know, I have joined with Senator Patty Murray to ask the Government Accountability Office to look into this troubling issue. Deliberate underspending on personnel costs and mismanagement of the Board’s annual appropriation will be taken very seriously as we draft the fiscal year 2021 appropriations bill.

It is twisted, but the NLRB has become hostile to the wellbeing and satisfaction of its own workers. In fact, NLRB staff report some of the highest levels of disaffection in the federal government. So, the change needs to happen there and everywhere.

Attacks on workers’ rights are not serious attempts to restore jobs or boost economic growth. Instead they are designed – purely and simply – to accelerate a race to the bottom. They can only do further harm to middle class families who are struggling to make ends meet.

Thank you again for being here. I look forward to what I know will be a robust discussion. I will now turn to Ranking Member Cole for any opening remarks he would like to make. Mr. Cole?

116th Congress