Examining the Policies and Priorities of the NLRB

and pensions will come to order. I note that a quorum is present. Without objection, the chair is authorized to call a recess at any time. Today's hearing will examine the policies and priorities of the National Labor Relations Board under the leadership of Chairman James Murphy and General Counsel, Crystal Kerry. The Biden-Harris NLRB worked tirelessly to prop up unpopular unions. The Trump NLRB has its work cut out for it, and today we will hear how the board is working to fix the damage caused by the previous administration. The NLRB was designed to be a neutral arbiter of workplace disputes. However, during the Biden-Harris administration, the board sided with union leaders, even when doing so meant undermining worker choice. The board's twenty twenty-three CMEX devi decision expanded card-check organizing, and imposed mandatory union recognition, certifying unions that never want a vote. The board also restored Obama-era policies, including the blocking of charge rules, which often delayed votes to remove a union for months or years. Previous administrations' board curtailed employers' ability to speak freely with employees about what it means to choose union union representation, and limited employers' ability to protect employees from discrimination and harassment at work. The twenty twenty four Amazon dot com services LLC decision overturned seventy five years of board precedent, ruling that it is unfair labor practice for an employer to require employees to attend a meeting during which the employer expresses its views on unionization the stereotypical of Leon Leon El Elestomer's decision made it harder for employers to discipline employees who use racist, sexist, or sexually explicit language at work. Finally, the Barris Biden-Harris uh board waged an aggressive campaign to classify more Americans as employees under the National Labor Relations Act. They did so in an effort to increase the number of potential union members in the hopes of funneling additional millions of dollars to union leaders who turn around and funnel that money to the political pri priorities of the Democratic Party. In the view of the previous administration's general counsel and board, graduate students student athletes and independent contractors should all be classified as employees, organized into unions, and required to pay union dues. The Biden-Harris uh board is gone, but General Counsel Kerry, Chairman Murphy, and the rest of the board are left to deal with the consequences. During the Biden-Harris years, the case backlog tripled. Upon non-postal employer cases rose uh open non-postal employer cases rose from Five thousand nine hundred to the end of twenty twenty to seventeen thousand four hundred and nine at the end of twenty twenty four. Closed cases drop below new filings every year from two thousand twenty-two to two thousand twenty-four. Median processing time for closed cases nearly doubled. And the informal settlement rate plummeted from eight to eight point two percent to three point six percent. No matter how hard the board works to reduce its case backlog, it can only decide so many. cases while operating with three members instead of five, and adhering to its tradition of overruling precedent only with three votes. I encourage the Senate to confirm President Trump's additional nominee nominees to fill the remaining vaca- vacancies, so the board can quickly reduce the backlog. Chairman Murphy and General Counsel Kerry, you are the first sitting general counsel and member of the NLRB to appear before the committee in nearly twenty years. I look forward to hearing your plans to address NLRB's challenges and continue protecting the rights of workers. With that, I yield to the ranking member for your opening statement, sir.

Thank you, Mister Chairman, I want to thank the witnesses for being here uh in your service. Today's hearing is an important one in many regards as we will discuss the NLRB, the only federal agency that protects the rights of tens of millions of Americans who work every day and allow them to organize if they choose to have a voice in their workplace. I come to this hearing with a perspective that both as many of my colleagues know, as a former small business owner, but also as a former member of la- our labor unions, local. Two in San Francisco unite here many years ago and local one seventy of the Teamsters in Worcester, Massachusetts. They wouldn't have got, I wouldn't have got through college without Teamsters one seventy in Worcester, and I wouldn't have been able to save enough money to open my own business if it wasn't for Local Two in San Francisco and learn the restaurant business. I know firsthand the benefits of membership and the power of unions, and the power of employees, whether they be organized or not organized. Right now unions have overwhelmingly pop- are popular among Americans, across party lines. Recent polling suggests that almost seventy percent of adults approve of unions because Americans know they need a seat at the table to advocate for their rights in a moment where Amer- America has the most concentrated wealth in the history of this country similar or or worse than the Gilded Age. Americans workers need a voice. Today's hearing comes at a time when CEOs at big companies are taking bigger and bigger checks while workers continue to struggle. Just last week a new survey found that it would take the median worker two hundred years to earn what their CEO earned in a single year, as opposed to fifties and sixties, when CEO pay was about thirty times the m- the amount of their average worker. Now it's in the thousands of times. Unions are critical to fixing our rising inequality by leveling the playing field and empowering workers to collectively bargain for higher wages, safer workplaces and better benefits. Despite claiming to support worker pe- work working people, the Trump administration has been tipping the scales in favor of billionaires and corporations. Neutrality, I guess, is in the eyes of the beholder. Stripping away organizing rights and shielding bad employers from accountability. Last January, President Trump ordered the unprecedented firing of NLRB member, Gwen Wilcox, stripping the NL NLRB of its quorum and preventing it from doing its vital work. The president has taken repeated and unprecedented action to leverage control over the nonpartisan independent LN NLRB, giving sweetheart deals to his billionaire allies and leaving workers behind in the process. These attacks, combined with a severe staffing shortage at the agency, are undermining workers' ability to seek recourse for unfair lab- labor practices. There are ninety thousand workers for every one NLRB caseworker. Let me repeat that. Ninety thousand American workers for every one NLRB caseworker. Workers are being mistreated, unions are being undermined by big corporations, and the Trump administration's only response to the enormous backlog of cases before the NLRB is to recognize them. This is a good step. Workers are their unions, and attacking a union is an attack on the workers who make up that union. Forming a union must be a right, not a fight. To restore workers' powers, Congress must pass the protecting the right to organize the PRO Act, fully fund the NLRB, and protect its independence from political influence. Finally, I'd like to to ask unanimous consent to enter into the record a letter from nurses at Saint Mary of Nazareth Hospital in Chicago, Illinois alleging retaliatory actions by management against the nurses nurses seeking to recognize. Thank you, Mr. Chairman, I yield back.

With with without objection.

Thank you, sir. I yield back.

All right. The gentleman yields back. Um

Gentleman yields back for s- to committee rule eight C. All members who wish to insert written statements into the record may do so by submitting them to the committee clerk electronically in Microsoft Word format by five p m fourteen days after this hearing and without objection, the hearing record will remain open for fourteen days to allow such statements and other extraneous materials uh noted during the hearing to be submitted for the offic official hearing record. I will now turn to the introduction of our distinguished witnesses. Our first witness is the Honorable James R. Murphy, Chairman of the National Labor Relations Board in Washington, DC. Our second witness is the Honorable Chryst- Crystal S. Carey, General Counsel of the NLRB. We thank the witnesses for being here today and we look forward to your testimony. Pursuant to pursuant to committee rules, I would ask that ea you each limit your oral presentation to a three minute summary of your written statement. The clock will count down from three minutes as committee m- committee members have many questions for you. However, pursuant to committee rule eight D and committee practice, we will not cut off your testimony until you reach the five minute mark. I would also like to remind the witnesses to be aware of their

Thank you, Chairman Allen. And good morning to everyone, including uh ranking member Desaigne and uh I see both uh Chairman uh excuse me, I see that both Chairman Wahlberg and ranking member Scott are here as well, and to all the committee, again, thank you for the invitation to testify today. Before President Trump asked me to serve as a board member, then as board chairman, I spent more than forty-seven years at the NLRB prior to retiring in December two thousand twenty-one. It's a tremendous honor and a somewhat daunting challenge to return and serve in this new role as agency head. In doing so, I benefit from the knowledge that every day the agency's employees work in the regions nationwide in our headquarters building and they work hard to support us. in safeguarding the statutory rights of parties subject to our jurisdiction. As I stated during my confirmation hearing, my immediate top priority upon taking office is to reduce a case backlog pending review by board members. That backlog significantly increased in the nearly one year period when the board lacked the three-member quorum required to decide cases. Consequently, when I and member Scott Mayer were sworn in on January seventh of this year, There were five hundred ninety-one cases pending our review. That number also greatly exceeded any number of uh cases in a board-level backlog in recent times. I also want to emphasize that I do not view this backlog problem as a partisan issue. I and member Mayer have worked collaboratively with our colleague David Prouty to address this issue. We have focused on the common initial goal of prioritizing the processing of oldest cases, representation election cases, and what I have characterized as low hanging fruit, that is, the more uncomplicated unfairly repracticed cases before us. I'm pleased to say that by the end of last week, the board has reduced the overall number of pending cases from five hundred ninety-one to three hundred eighty-seven. It is done so in spite of the fact that one hundred fifty-two newly arrived cases were assigned meaning that we have actually disposed of three hundred fifty-two cases, in a five month period. This production is unprecedented in recent times. I note that there have been very few dissents in the decisions issued so far. Part of the reason for that is, as mentioned, obviously attributable to repeated statements by me and member mayor, that we will continue to adhere to the long-standing non-partisan board tradition, requiring a three-member majority to overrule existing precedent. I'm sure that many of you have questions about certain recent decisions. I will answer your questions to the best of my limited ability to do so, noting in advance that I cannot comment with any specificity about any case actually pending or about issues that are most likely to be raised in upcoming cases. I must avoid even arguably suggesting prejudgment that would require my recusal from participation in a case. My goal is straightforward, to promote a board that works efficiently, expedit expeditiously, and in a way that earns the confidence of employees, employers, and unions. Doing so will best fulfill our commitment to protecting the statutory rights of each while ensuring that our administrative agency processes are cost-effective and accountable. I look forward to working with the subcommittee on these priorities. Thank you again for the opportunity to testify, and I welcome your questions.

Uh, thank you, Ch- Chairman Murphy, um, I now recognize General Counsel Keary for your testimony.

Good morning. Chairman Allen, Ranking Member De Salonier, and the committee members, thank you for having me here. It is my duty and that of anyone serving as General Counsel to protect workers' rights by investigating unfair labor practice charges and making determinations on them promptly. Otherwise, we are not effectuating the National Labor Relations Act as intended. The backlog we face today prevents us from fulfilling our mission. Therefore, my chief priority as General Counsel is to address the backlog and implement sustainable operational and case handling measures to ensure cases are addressed in a timely fashion going forward. I am grateful to be here today to share where we stand, how we got here, and what we're doing to reduce the average length of time that a case is opened, before a decision is made on its merit. What I have realized in my first five months on the job is that the previous administration placed a greater emphasis on reversing established precedent on approving operational efficiency and providing timely responses to parties before the NLRB the focus on overturning long-standing precedent without a similar focus on how to process cases and conditions that deteriorated for our board agents every day combined with decreased staffing led to the historic backlog that I walked into on day one beginning that day we initiated a comprehensive review beginning with efforts to enhance case handling conduct investigations more efficiently and minimize delays in acquiring initial evidence from involved parties. Our dedicated employees have been working full throttle to get our house in order. I'm proud to share that since I took office, despite understaffing, our incredible employees have completed the investigation of seven thousand sixty-six cases that were pending as of January seventh and nearly forty percent reduction in cases that were awaiting determination in a regional office. office when I was sworn in. Moreover,

Mm.

between January seventh and June second of this year, we've processed thirteen thousand six cases versus twelve thousand four hundred and ninety-one new filings a reduction of the backlog by five hundred and fifty, fifteen cases, about a hundred and eight a month. We're also proud to have closed or completed investigations in forty-one hundred legacy cases those filed between twenty-one and twenty-four. And case movement across the agency has also been high with eighty-five hundred cases closed investigations closed and thirty three hundred other cases and eleven hundred employee representation cases closed we also continued to work on more current cases filed between twenty five and twenty six processing more than seventy four hundred cases in that time period as part of this plan i recently implemented an initia an initiative to redistribute thirty five hundred cases among regional offices in less than a month the investigations in two hundred and eighty one of those cases have been completed Well, as you can see, we are attacking the backlog from multiple angles, and I'm sure I'll have more questions on that today. I am optimistic about our progress in the future, but it's important to note that the situation was not created overnight. The backlog accumulated over a period of several years, escalating to unprecedented levels between two thousand twenty-one and two thousand twenty-five and it will take some time to fully reign in this backlog. Additionally, we continue to receive new charges every day. at a record prate pace and all while we are forty-three percent understaffed compared to where we are ten years. We're excited to have hiring authority to hire nearly a hundred new employees this fiscal year, however that number does not approach the number of employees we need. Before closing, I would be remiss in not pointing out that I learned this morning that despite OMB proposing two hundred and eighty-five million for the agency's fiscal year budget, fiscal year twenty-seven, the House Appropriations Bill introduced an initial proposed budget of only two hundred million, which is far below what we'll need and would require a reduction in full-time employees from between three hundred and four hundred and sixty full-time employees. I hope that the information that we can provide to you today will encourage you to speak to your colleagues on the Appropriations Committee and advocate for our agency, for our employees, and for workers. who depend on us to resolve their workplace disputes. I look forward to your questions.

Thank you, General Counsel Kerry, for your testimony. Under Committee Rule nine, we will now question the witnesses under the five-minute rule. I'll recognize myself for five minutes. This is Kerry, with your background in both the private sector and the NLRB. You have a unique perspective. on the timeline of labor negotiations. What are the primary factors and complexities that influence the time it takes for an employer and a union to reach their first contract?

Thank you for the question. Every case is different, every company is different, every bargaining unit is different. So I don't think there is one single factor that would influence the time it takes for a collective bargaining agreement to be reached in an initial contract. From my perspective and from my experience, I can tell you that there are many things that come into play after a unit is certified or voluntarily recognized by an employer that includes extensive requests for information relating to the specific employer the industry, the business, the wants, the needs of the employees in the union. Um, those take time to respond to, and we need to provide times for the union also to put together their proposal. So, in terms of complexity, every every single bargaining unit and every negotiation's going to be different.

Uh, one of the most effective strategies or frameworks for ensuring that the statutory obligation to bargain in good faith leads to a timely, finalized first contract.

I mean, from a practic practical standpoint, it means parties col- talking to each other and collaborating with each other, and answering each other's requests for information, which can go both ways. Um, it also requires that, you know, when a charge is brought to us alleging that there is some type of bad faith bargaining, that there's surface bargaining, that there's regressive bargaining, that we have the capability in terms of staffing and and we have the, you know, the runway to be able to investigate those cases in a quicker manner so that we can get results. The outcome of an unfair labor practice case in alleging bad faith bargaining can have an impact on many many decisions in bargaining, also can result in things you know in the event that there is a strike depending on whether there is an unfair labor practice or not involved can also impact whether or not replacements can be used and what types of replacements so the ability of the general counsel's office and our field office to be able to make a timely decision on any unfair labor practices alleging bad faith bargaining is crucial.

thank you uh chairman murphy the board has a tradition of requiring three votes to reverse precedent and you have signaled your intention to keep this tradition. Could you elaborate on this, elaborate on this tradition?

Yes, Mr. Chairman. Uh, as you uh mentioned, it's a long-standing tradition I have checked and I've found no aberration from that particular tradition since the passage of the uh Taft-Hartley amendments in nineteen forty-seven. Uh, it is not statutorily required, uh, but I think implicit in the expansion of the board from three to five members, which permitted the board to decide routine cases on a three-member basis, a sub-panel basis as we call it. Uh, implicit in that is the notion that the board as a body of a whole should overrule precedent and that body of a whole would be three members regardless of whether there are actually five city members.

Thank you. Um, Chairman Murphy, since the time the board reached a quorum this year, you have been making steady progress in pr- uh, processing cases. In the past five months alone, the board has issued over two hundred decisions. There have been prior years when the board only issued two hundred and forty decisions. Will you talk about the urgency of confirming additional board members and what is the cost in concrete terms of continued vacancies to the workers and employers awaiting resolution of labor disputes?

Again, as I made a reference to the five-member system where there would be sub-panels where only three board members would be disposing of routine cases and the other one or two board members would be simply noting off at the end unless they wish to participate. Uh so uh the an additional board member uh in this case nominee uh Jim Macy, it would be advantageous to have him present, uh understanding that any board member, including myself who arrives at the board, does have to go through a learning curve and to get acquainted with staff, but the sooner the better that we get uh reinforcements if you will, uh the better I think we will be able to process the additional, still much too high a backlog that we have to confirm with.

Good. Well, thank you for your work. And uh uh now I will call on Mrs. Lee from Pennsylvania for your five minutes of questioning.

Thank you, Mr. Chairman. This administration has waged unconscionable attacks on workers. Our federal workers were illegally fired. Our VA workers had their collective bargaining agreements terminated. Our teachers are being accused of indoctrinating kids. Our health care workers are being blamed. for the failures of corporate monopolies. Our country can only be great when our workers are supported, and the NLRB has a duty to make things right for workers in our country. I represent a district in southwestern Pennsylvania that knows firsthand how important the NLRB is. It backed up the steel workers in the nineteen thirties and the Pittsburgh Post-Gazette workers during one of the longest strikes in recent history but when Trump removed Wen Wilcox from the NLRB, it stripped the board of a quorum for almost an entire year, and that left workers' livelihoods in the balance. Corporate monopolies in my district and across the country immediately capitalized on the lack of a quorum to try to prevent workers from unionizing. The Trump administration has repeatedly defied the uh National Labor Relations Act and other legal precedent to undermine the NLRB's independence. So now that you finally have a quorum, my constituents need the NLRB to do its job. which cannot happen if you're not acting as an independent agency. Mister Murphy, do you agree that the NLRB must be an independent agency?

I agree that the board traditionally has been an independent agency. It continues to be an independent agency. I can assure you that I have had no conversations with the White House involving specific policy matters or involving any specific case. Uh, there is, as I wa- as, as

So, yes, you do believe that it must remain.

W- but as we all know, there is a pending Supreme Court case involving the discharge.

Well, my question is, is do you agree that the NLRB must remain an independent agency? I would like to know how you consider it.

As an operational matter, yes, I'm third in appointing so.

Thank you. Uh, thank you. So right after leaving the NLRB without a quorum, Trump issued executive order, you know, fourteen two one five, which made it clear he wants to assert full control over all independent regulatory agencies. One provision in that executive order was for the NLRB to have a White House uh liaison on staff. Um, does the NRLB currently have a White House liaison?

Not that I'm aware of.

Since you believe that the NRLB should be an independent agency, will you oppose the creation of a White House liaison position?

I will certainly discuss it if the president orders that uh somebody to come to our office as a White House liaison. I'm not sure what position I would be in to oppo- uh to oppose that, other than to uh resign.

Okay. Being an independent agency is the core of the NLRB's ability to protect workers. But we know that calling the NLRB unconstitutional uh is a standard tactic routinely used by Trump's friends, uh corporations like Amazon, SpaceX, uh to union bust. Miss Kerry, your former law firm, Morgan Lewis, represented some of these corporations in arguing that the NLRB is unconstitutional. Morgan Lewis paved the way for some of the most radical challenges to the NLRB that functionally killed workers' rights to organize in several states across the country now you're making the same arguments that the NLRB is unconstitutional while serving as its general counsel um Miss Kerry, how can workers in my district trust you to protect their right to unionize over the interests of corporations you've helped to union bust?

I'm actually a little confused at why you think that I continue in this role to make arguments

Your past work. OK, so you don't believe it's unconstitutional,

Mm.

you've changed your stance.

I am, I, I never took that position. Just because the law firm I work with represented clients that took it does not mean that I took that position.

Do you share the se- do you share the sentiment of the law firms you work for?

I believe that in the role that I am serving in today, I have enforced board orders and have for the constitutionality of the National Labor Relations Act.

And you believe that workers can trust your, that you will protect their rights organ?

I absolutely do.

Because what my question was is how can they trust that?

And I think that, ma'am, I think that everything that I just talked about in my opening statement, and the directives that I've given regional directors to process cases, to get cases moving, the fact that we've transferred cases to regions that have more ability to get to cases on a faster basis and to get answers to workers, yes, I absolutely think workers can. can trust me to get answers to the questions that they bring to us in a much quicker manner than my predecessor did.

Thanks, and I hope that that is the case because workers are depending on this. Every worker in this country has a right to a safe environment, fair pay, health care, and leave care unions and collective bargainings are workers' best shots at having those enforced. Um, so I will continue to stand up to the agency, uh, who are supposed to be backing workers. I hope that we can expect that you will join us in that support and workers are relying

General Lady yields, and now I'll call on our Chairman of the full committee, Mister Wahlberg, for his five minutes of questioning.

Thank you, Mister Chairman, and thanks to the panel for being here. Uh, Mister Murphy, in the nineteen seventy case of uh H. K. Porter versus NLRB, uh the Supreme Court said about collective bargaining and, and I quote, "it was recognized from the beginning that agreement might in some cases be impossible, And it was never intended that the government would in such cases step in, become a party to the negotiations, and impose its own views of a desirable settlement." Do you agree with this statement about the government's role in collective bargaining?

I do. Um, and in fact, we - we are obliged to follow that particular Supreme Court edict.

How important, then, is it for workers to be able to vote on a contract?

it's not statutorily required. It can be required as a consequence of parties agreeing at the beginning of negotiations to do so, or it can also be required if it's something in the union's bylaws that the uh uh employer is aware of. Uh, I I really don't have any personal experience as to whether or not it's important in uh in any particular instance for to have those votes. I do think that the easiest thing to do is have the parties at the bargaining table to have full authority to conclude a collective bargaining agreement.

Certainly parties ought to be involved, shouldn't they?

They should be, yeah.

You would hope that the sides would be heard. As a former steelworker myself, um, I understand that, uh, some of my - my conditions were far better than my father's as a result of negotiations that went on between parties. Thank you. Uh, Miss Kerry, your predecessor used the general counsel's enforcement discretion almost exclusively in ways that advanced, um, union organizing. How are you exercising enforcement discretion differently?

Thank you for the question. We have reiterated to the regions that all cases, regardless of whether they were filed by an individual, by a union, um, against an employer, by an employer, um, should be investigated fairly and efficiently and consistently, regardless of who the parties are that are involved.

Uh, are there categories of cases such as, uh, charges filed by workers against unions that you believe were downgraded under prior leadership and that deserve more attention today.

Unfortunately, I think that those cases were not processed as quickly as they should have been, and were potentially categorized behind cases that involve charges against employers.

Judging by the backlog.

Correct.

Um, thank you. Mister Murphy, the Biden-Harris board's decision in the Amazon captive audience case prohibited employers from holding meetings at which they express views on unionization. However, as I believe you know, the Supreme Court, prior boards, and the text of the National Labor Relations Act explicitly protect employer speech. How do you s- uh square this decision with well-established free speech rights of employers?

We are likely, if we do not already have cases involving that particular uh prior board decision pending before us, so that I cannot specifically comment about it. But you're absolutely right, sir, that the act through section eight C incorporates the - the concept of a s- first amendment protections for employee speech, for employer speech.

Employer and employee speech, right?

Yes. And employee speech as well, yes.

Absolutely. Uh, how might a full board be able to insure that employer free speech rights are protected going forward?

Well, as I've mentioned, we have our tradition that it takes three board members to overrule particular precedents. uh, a or and theoretically, uh, an additional board member would could make a, you know, could create a majority to overrule that particular precedent that you raised.

The wisdom of a majority.

That's correct, sir.

Okay. Thank you. I yield back.

The Chairman yields. Uh, now I'll call on Mister Manion of New York for your five minutes of questioning.

Thank you, Mister Chairman, uh, thank you to both of you, uh, for being here today. Obviously the positions you hold are uh very important as Chair and General Counsel of the board uh to the working people of this country, and I thank you both for your service. Uh as you may know, or as you know, excuse me, when workers choose to organize and advocate for themselves, time and again they face the same obstacles, which could be threats, retaliation, endless delays, and sometimes even closure of an entire job site, which did occur in my district. These anti-union tactics have been tried uh all across the country, including in NY twenty-two, and I've seen them play out firsthand. It's exactly why, as the chairman stated, we need a fair, well-functioning and non-partisan NLRB to protect workers' rights and ensure that unfair labor practices are fully investigated and remedied. The last year has been a turbulent one. Um, shortly after the president took office, he took the hostile and unprecedented action of firing board member, Gwen Wilcox, leaving the board without a quorum for nearly an entire year. Not only did this limit NLRB's operations, but it also threatened the agency's independence. Um, case logs, backlogs of cases did exist and I appreciate the acknowledgement and also the acknowledgement that after the Trump uh administration occurred the second time that not having a quorum did also contribute to those backlogs of cases. Um Certainly that worsened the problem and some employers clearly took advantage of the situation by appealing cases to a board that could not function without a quorum, leaving workers with little recourse in undermining their organization uh, their organizing efforts. So as we move forward, there's a lot of work to ensure that cases and election petitions are processed quickly. I appreciate that in both of your testimonies today, you indicated that addressing backlogs is a priority and substantial um improvements have been made in reducing those backlogs. We can find agreement there, but uh I do want to address that how we are reducing uh these backlogs, um making that number go down significantly, uh we should always assure that workers' rights are the highest priority. So my questions are for you, Miss Kerry. Um in response to this issue, your written testimony states that you are seeking reasonable settlements on pending cases, Given uh what we've seen so far, I do have some concerns about what that looks like in the past five months. Your office has given Amazon a bailout and one of the most consequential cases before the agency and let SpaceX off the hook for enforcement from enforcement by the NLRB um so that being said historically across past administrations, the NLRB operated by a rule of thumb that any settlement less than eighty percent of the total back pay owed was unacceptable. So can you address how you're abiding by or not abiding by that traditional practice?

Thank you. The settlement process is really something that's incredibly important to be able to resolve a majority of these cases that are pending on our backlog list. My predecessor, as you, I don't think you mentioned, but there were some constraints um that were placed on regions and parties to engage in settlement discussions regarding pending unfair labor practices. So the eighty percent threshold that you discussed was thrown out the window. Anything that was less than one hundred percent plus additional remedies that I would define as extraordinary and quite frankly that's not just me, that's what the board and the courts have said in relation to those types of remedies, she saw it as well, prevented parties from being able to engage in meaningful settlement discussions. So, I have told every regional office that I have visited and I have several more to visit, and I've enjoyed those visits, I don't start at eighty percent of anything. Those who have negotiated across the table for me can confirm I started a hundred percent plus when we're negotiating settlements. However, the guidance that I have given, and I think this is consistent with the statute and what we are supposed to do to enforce the National Labor Relations Act, is to encourage parties to discuss and work out resolutions that are good for them. the majority of our settlements are bilateral settlement agreements. That means the charging party and the charge party have agreed on the terms of the settlement. You mentioned one of two unilateral settlements that my office has accepted.

Thank you.

Understood. Is there, when those two parties are engaging in these settlements, do you intervene in making sure there is a a floor, a minimum threshold for that settlement? Oh, am I over? Thank you, Mr. Chair.

The gentleman yields to now call on our Chairman Emeritus, Doctor Fox, North Carolina, for your line, five minutes of questioning.

Thank you, Mr. Chairman. Miss Kerry, in the case Communications Workers of America v Beck, Supreme Court held that non-members of a union cannot be required to pay for union political expenses to keep their jobs. But unions are automatically seizing money for politics from non-members unless they object and jump through union created hoops. Would it not be more consistent with the purpose of the National Labor Relations Act and the principles articulated in Supreme Court decisions such as BEC, for unions to collect funds for political activities from non-members only when those individuals have affirmatively consisted, consented, excuse me, to paying for such expenses.

This is a really important issue and that's something that my office has actually received oral argument on since being sworn in in January. It's definitely an issue that we see repeated and we see issues come up constantly with this exact you know issue of whether you have to opt in, opt out, is basically what we've heard some questions about. I think that the proposals that you've given um would be really great options. I do think that given the historic backlog and the way cases are being processed it would take a long time to come up with that type of resolution my hope is that we can encourage parties through a different method to to be clearer up front on what options are are are available to employees whether that's at the time that they're initiating into a new employer if it's a time in which they have a certification where employees basically have the availability to see what options are available do they wanna be a full member do they wanna be a non-payer what are what is it i've i've and and i've analogized to what it looks like when i get my costco membership renewal form every year and it's do you wanna be a platinum member a gold member a bronze member and you know these are the benefits that you that come with each of those levels of membership and i think providing that clarity to employees up front and providing them that information would help us in terms of reducing the number of cases that come before us but most importantly it provides employees with clarity as to what they are agreeing to what they are getting in result and in response to their selection. And I hope that in the end, you know, we are able to work out and provide some guidance that we think are completely in line with long-standing law on relation to back and the window periods and all of those types of issues that come with that. But I think the information up front for employees is what's most critical.

Thank you very much. Mister Murphy, under former General Counsel Labruzzo, Biden, Harris and LRB tried to overturn one hundred years' worth of precedents, including many that were established or reaffirmed on a bipartisan basis, across dozens of doctrinal areas. The practical consequences was that regional offices, administrative law judges and the board itself were consumed by grappling with novel aggressive legal theories, rather than resolving the ordinary disputes that workers and employers brought to the agency. In your assessment, how much of the agency's current caseload challenge is it a- attributable to the deliberate allocation of resources away from retail cases resolution, and toward ideological agenda setting?

I don't have any detailed information to answer that question with respect to the impact on the board caseload. And I have no information at all with respect to the impact on regional operations. Based on my long-standing experience at the agency, however, whenever the board is considering overruling significant precedent, it takes time and staff counsel away from uh working on regular cases. With a progressive overall reduction in staff members over the recent years, there's a greater likelihood of an adverse impact on overall productivity. Having said that, I want to emphasize that the massive case backlog currently pending at the board, when I arrived, was far more attributable, I think, to the loss of quorum than to any other issue.

So, uh, I'm assuming then the confirmation of another board member could help you clear the case backlog.

I certainly hope so.

Miss Kerry, when you took office in January, the non- postal employer docket carried roughly sixteen thousand open unfair labor practice charges, more than half of them over a year old. Before General Counsel Abruzzo's era, the agency maintained a stable inventory of a prog of roughly five thousand eight hundred to six thousand open charges. Can you explain what you found when you arrived and what your assessment is of how long it will take to return the board to pre-twenty-twenty-one inventory levels at the current rate of closure?

I found a mess, quite frankly. Um, there were so many cases that were prioritized to be sent to advice because the former general counsel wanted to overturn precedent. The cases were being stalled out in regions repeatedly. That combined with, as you mentioned, the reduction in staffing. has really um has uh has really hit hard in the regions and in our ability to impact the regional um decision making process. So even with all of the uh you know enhancements that we're putting in place, if we remain at the same staffing levels it will be years before we are able to clear the backlog.

Thank you, Mister Chairman, and I thank our witnesses.

Young Lady Yields, now I call on Mister Kano from California for your five minutes of questioning.

Uh, thank you, Mister Chairman. Um, Miss Kerry, under the National Labor Relations Act, what rights do workers have under section eight? Under section eight.

Well, section eight would discuss the things in terms of unfair labor practices that may uh uh may occur so they have the right to file charges alleging that the employer has violated the National Labor Relations Act or that the union has engaged in things like uh failure to represent them in their duty of fair representation.

Okay, so both in terms of Um, let's say inaction or adverse action by the employer or the union. Um, uh, let's say an employee is fired for trying to organize a union in their workplace, something that I'm sure you've seen during your time. At the end, all I'd be, you're nodding. Um, uh, can an employee file a lawsuit themselves if they are harmed by an unfair labor practice? Which this would probably constitute.

Yes, they can.

Um, uh, how can a worker seek recourse if they're unlawfully fired?

So they have a number of options obviously um and before us they would be able to contact an information officer they could come into an a local office or go online and file an unfair labor practice charge sometimes it's really helpful for workers to reach out and I encourage that to talk to our field staff in the information office so that they can help walk them through the charge filing process to make sure that they're identifying critically in the charge itself the specific unfair labor practices that they're alleging have occurred.

Okay. Well, under the National Labor Relations Act, workers cannot file an unfair labor practice claim through private right of action. Do I understand that right?

Th that's correct.

Yes. So the NLRB is the only way they can seek a solution.

Unless there's other allegations of discriminatory contact, um, depending on um the type of work that they have, they may be able to have a state claim as well.

But discriminatory contact is is a different thing than an unfair labor practice.

Correct, if you're talking specifically about an unfair labor practice.

Okay. So the NRB is, uh again, the on under the law is the only way they can seek a solution. They can't go through a private right of action. They can't sue um by themselves in the court. They have to go through the NRB.

Not for specifically for an unfair labor practice.

Yeah, uh for un- uh for unfair labor practice that's what we're talking about,

Correct.

which is a big thing. It's a it's a it's a wide it's a there's a lot of stuff that can happen. That means that when there is a backlog of cases, Uh, workers are getting no recourse when it comes to unfair labor practice. Right?

I mean, it does delay.

Well, they're getting no recourse at that point because they can't go to the courts, they have to go to the NLRB. And so when the NLRB has been like, unable to process these cases because of the lack of a quorum, that's a problem for the workers, not for the employer. Um, certainly it's for the little unions that represent them, right?

That's great. So I I just want to clarify, so I think the lack of

OK, so that's where I wanna go next. In twenty twenty three there was approximately one full-time NRLB employee for every ninety thousand workers under his jurisdiction. Is this enough staff to process the number of claims that you receive, or even to address the backlog?

Well, I mean, based on the opening testimony, absolutely not.

OK, thank you. That's a very frank answer. Um how many delays uh how ha- um how have delays in case resolution impacted um American workers' confidence that the government will protect their right to organize?

Yeah, I mean as I said on my opening statement, I don't think we're fulfilling our mission if we're not timely getting responses.

So y- so you're not fulfilling the mission um and I get uh and and and I think the staffing has something to do with it. Over the last twenty years regional offices have lost fifty percent of their staff while unfair labor practice and union representations re- using representation cases have skyrocketed over the last few years. Do you believe the NLRB needs more funding than staff to carry out its responsibilities in a timely manner?

I think if we wanna hit the backlog that we need to to get resolution to the American workers, yes.

Thank you, thank you. I appreciate your answer. How much funding and staff does the agency need to process cases and election petitions in a timely manner, do you think?

Well, I'm not sure that I've done a complete uh look look at that.

You can get back to me. But but you've been this is a big deal that you've said,

I think I'll get back to you on that one.

that you need more staff.

It is.

Um, President Trump and billionaire Elon Musk's vicious campaign to gut the federal workforce slash to NLRB's workforce by ten percent in twenty, twenty five alone. I understand that the NLRB recently posted a series of job openings. How many positions is the administration allowing you to hire?

I believe we've posted for approximately a hundred vacancies so far so far, and I believe we're up into realm one sixty-seven total.

Still, I still think that's a fraction of what you need. Um, what else are you doing to ensure that the NLRB can continue to hire staff?

So, I mean, we obviously are working on the first budget that Jim and I have actual input into, which is FY twenty-eight. Um, we are, you know, reviewing and providing input on the OMB budget for FY twenty-seven. And as I said on my opening statement, you know, unfortunately the house appropriations bill that was put forth in the first proposal is seventy-four, eighty-four million less than what OMB proposed for the board. So we're hoping that being here today and answering your questions you'll reach out to your colleagues to encourage more funding for us.

Thank you, Mister Chairman, I yield back and I I I see our witnesses, our our very own Trump appointees are saying that we need more staffing at the NRB. Thank you.

All right, gentlemen, you don't mean, uh, call the doctor off. Wonderful. Um, very good, uh, your five minutes is quite up.

Thank you, Mister Chairman. And Chairman Murphy, General Counsel Kerry, thank you for being here with us today. As you both know, the NR uh, NRLA states that if a union can recruit thirty percent of employees in a particular workplace to sign authorization forms stating that they wish to be represented by a union then the NRLB verifies the forms and orders a secret ballot election. The NRLA goes on to say that a majority of the workplace's eligible employees must vote yes to have a union represent them in collective bargaining negotiations. However, the statute's vagueness on the term majority allows these elections to be s- decided, uh, based on the number of votes cast no matter how many eligible employees participate in the election. This can lead to absurd situations, such as the unionization election at the Virginia defense contra- atta- contractor Kerberos International. Only one worker out of eight who were eligible voted to give union control of all of the workers. A similar situation happened in Washington DC at the security firm Securimedi. Only one worker out of seven who were eligible voted, giving the union control of the whole workplace. Uh, union organizers can easily abuse this system, focusing on a small number of workers to ensure a union victory. Trader Joe's employee uh Michael Alcorn testified before Congress that quote, After an organizer realized I wasn't on board, they they told me that they couldn't answer any more questions and that it and and that they were going to devote their attention to those workers who would be with them, and help them win. This is not workplace democracy. Uh, Chairman Murphy, do you think this is problematic that only one worker can unionize a workplace?

I assume that this is not a case pending before me. Uh, uh, uh, uh, I I it it's concerning.

No, no, it is not, yep.

I think it's an aberration. I'm not familiar with many cases at all that have presented that drastic, uh, you know, uh, minority of of votes being cast. But you're absolutely right.

Yes. Yeah, yep.

The more voters prefer, uh, the better it is, and that's one reason why we have a preference for in-person manual ballot election because we have the highest participation rate when we have

Yes, yeah. Absolutely, yeah, absolutely.

something like those.

Um, thank you, Mister Murphy. That is why I introduced the worker enfranch my enfranchisement act my bill would provide for workplace democracy by mandating a two-thirds quorum of eligible employees to be present in a unionization election in order for those results to be deemed val valid. If a two-thirds quorum is not present, then the election would be uh deemed invalid. With a two-thirds quorum, still eighty-four percent of unions that won in September twenty twenty-four would have been valid. Um, this I believe is a reasonable reform that can ensure that all employees have a voice in workplace unionization elections. Um, unfortunately, the Biden-Harris era NRLB made this lack of workplace democracy problem even worse. Under the board's CIMEX decision, an employer can be ordered to bargain with the union even in the absence of a majority vote in a secret ballot election. Um, the Biden board decided that an election result could be jettisoned based on an unfair an alleged unfair labor practice during the organizing campaign. Thankfully, the sixth circuit of Court of Appeal struck down the CIMEX within the uh uh s- sixth circuit uh jurisdiction. I believe it should be struck down nationwide. Uh, Miss Kerry, given the uh serious consequences of issuing bargaining orders, what steps is your office taking to ensure that bargaining orders are rarely issued, narrowly applied, and issued with clear standards.

Thank you. Well, I would argue generally speaking that bargaining orders are a rare occurrence. They are to be withheld for the most serious and egregious violations in relation to um election conduct. So I believe that even before the prior board took the in steps to you know move to the CEMEX standard, there were already board cases in place that had been in place for over eighty years quite frankly, and had resulted in a number of rerun elections. So what we are doing is we are investigating cases to the extent that they come before us in relation to um election misconduct and we are um evaluating those under the standards of the current law so to be clear in CEMEX there was no specificity in relation to specifically what type of unfair labor practice would result in a CEMEX bargaining order so there is discretion. When we are reviewing unfair

Thank you. I yield back, Mr. Chairman.

The gentleman yields and now I'll call on uh Ms. McBath from Georgia for your five minutes of questioning.

Thank you, Mr. Chair, thank you for uh visiting with us today to our witnesses. Uh, Miss Keary, before becoming General Counsel of the National Labor Relations Board, you were employed as a partner at the law firm Morgan Lewis for just under eight years. Is that correct? Correct. OK. And does Morgan Lewis represent both employees and management in employment and labor? Or does the firm specifically represent management at corporations involved in labor disputes?

Um, no, it is a full-service firm.

OK. Thank you. Now, do you think that your previous multi-year employment as a high-level partner in a law firm representing only corporations makes you biased? against workers when making decisions in unfair labor practices.

No, I do not.

You may think so, but it is clear that many Americans will find it impossible to believe that your previous work would not make you biased in favor of corporations over regular people when making these decisions. Under President Trump, the federal government has only become even more of a pay-to-play scheme for the most powerful, people and entities in our country to avoid being held accountable for violating the law and people's rights. Miss Kerry, since you were sworn in as Counsel General, have you or anyone in your office even been contacted by phone or email about an active NLRB case by anyone representing a company or by the company themselves?

Um, and we received contact from unions and companies. consistently about pending cases.

OK, so All right. So then, has the White House or political appointee at a different federal agency contacted you or your office about a specific NLRB case to request that a specific action be taken in favor of a company or over a worker?

No.

OK. That's good to hear, and I hope you continue to do that. There's absolutely no reason that you should be resolving cases in favor of a certain party just because you received a call from the company itself or from the president. These cases are already stacked against our workers because of the power imbalance between a boss and a subordinate and make no mistake that Republicans in Washington are not pro-union and they're not pro-worker. Democrats used our majority to save the hard-earned union pensions of over one point two million Americans, literally preventing people from having to go back to work in their old age and helping them to enjoy their retirement. Republicans re- they used their majority during President Trump's first term to change the law, to prevent union workers from being able to write their dues off on their taxes. And so the difference couldn't be much clearer. Regardless of how hostile to unions this president and the majority may be, the first section of the National Labor Relations Act clearly states that it is, and I'm quoting, " the policy of the United States to encourage the practice of collective bargaining and freedom of association." But that is the exact opposite of what we're seeing from this president. and House Republicans. And I yield.

Thank you. I now recognize my friend from Florida, Mr. Fein.

Thank you, Mr. Chairman. You know, the NLRB is supposed to be a neutral arbiter. It's not supposed to be an advocate for businesses. And it's not contrary to, I think, what my colleagues on the other side of the aisle believe. It's not supposed to be an advocate for labor. supposed to be a mediator in the middle to ensure fairness. But I think we saw, as we saw in many instances, under Joe Biden and Kamala Harris, government weaponized for approaches that were simply not appropriate. Um, Mister Murphy, the the Biden-Harris board's stair cycle and Lyon-elastomer's decisions effectively prohibited employers from enforcing standard policies requiring respectful conduct, and barred employers from disciplining employees for racist, sexist, and bigoted language used during protected activities. So I want to be clear, Joe Biden's NLRB encouraged and allowed racists, sexists, and those engaging in other discriminatory behavior, took their side, put the finger on the scale for the worst imaginable people. Joe Biden, pro-racist. How would those decisions conflict, in your view, with Title VII of the Civil Rights Act?

I think the board is obligated to take in into consideration the protections afforded by Title VII. And I'm aware the - the cases that you mentioned, we have similar cases, uh, involving those precedents. So I can't spea- speak specifically beyond that.

So you disagree with Joe Biden and Kamala Harris's pro-racist, pro-sexist policies that they pushed forward, you know, when in in those decisions at the time.

I I didn't say that exactly, sir. But I would like to consider reconsider if the opportunity arises, what whether those cases were correctly decided.

So so how might the board be able to take swift action to resolve these employee conduct cases?

The issue has to be raised in an unfairly repracticed case before us. And, uh, you know, if we're to overrule precedent, as I've said several times during this hearing, it would require a three-member majority.

OK.

Um, changing topics. Miss Kerry, you've declined to issue any new mandatory submission requirements for cases. It's an unprecedented step that you've described as deliberately allowing regions to resolve cases without creating a bottleneck at the NLRB headquarters and I can understand reasons to do that, staffing and and things like that but can you explain really why you made that decision? And more importantly, what oversight mechanisms have you put in place to ensure regional consistency and quality without centralized case-by-case clearance. To be clear, we don't want people in one part of the country thinking the NLRB does things one way, and another part, it should be standard across the board. So why did you do this and what have you made done to make sure that there is consistency across the board?

Yeah, so I've actually been a little shocked at the pushback that I've got from both sides, on the failure or the refusal to issue this mandatory submissions advice, um, memo random. I did it for the reasons I stated in the memo. um where i said i was not going to issue one and it is very much so because the backlog of cases that our regional offices are facing the procedural

so it's a resource issue ok

it is a resource issue and we do have to

i'm i i'll i'll grant that i'll grant that that's your argument so what are you going to do to make sure that in florida that region i'm confident they'll do the right thing because it's florida versus new york or california where i'm fairly confident they'll do the wrong thing so like what are you how do you make sure that there's one set of standards.

Well, I disagree. I think all of our field offices would have a consistent outcome regardless of what state they're in. So we're we're

So beyond your co- beyond your confidence.

I'm gonna answer your question.

Yeah, okay.

So, in relation to what we're doing is we have a division called operations in headquarters, and they are in constant contact with each of their district which contains a certain amount of regional offices. We have direct conversations with operations and I have been in significant number of field offices so far and have held all field staff calls. where I message my points of view on specific cases and on specific case handling methodology. So, in order of consistency, I don't have time to look at eighteen thousand cases. And if we wanna get through the backlog, I have to trust my people, and I do trust them, that they are doing the right thing, which is what I have instructed them to do in relation to the cases. We do have a number of the cases that would have been included on the mandatory submissions advice memo, which quite frankly I'd written for over a year, as my nomination was pending and I just never issued it. But we have all of those cases that are pending before the board. So Jim keeps saying, if we have the opportunity to review them, they're " my my opinion and position on Stericycle is out there before him pending. My position out there on Amazon is out there pending. My position on Siren is out there pending. My position on Hospital Metropolitano is out there and pending." So those cases, we are able to find internally through the use of our operational resources and not place an additional burden on our regional offices to have to write lengthy memos, to submit to it.

Thank you. Thank you, Mr. Chairman. I yield back.

Thank you. And now I'd like to recognize my friend from Virginia, Mr. Scott.

Thank you, Mr. Chairman. Uh, Mr. Murphy, I understand you've been at the board for forty-seven years.

That's correct. Before I retired. Now I've unretired, so I'm s- running the clock again.

And you served as um Chief of Staff of three board chairs.

Chief Counsel, sir, yes.

Chief Counsel of three board chairs.

I guess.

Was at least one of them appointed by a Democrat?

None of those three were. I've have worked and I have worked on the staffs of

Well, one was appointed, one was appointed in twenty ten.

Is that correct? OK, I apologize. Um

So who would have been appointed by President Obama?

Oh, I s- I understand, uh, uh, there was a misunderstanding there. I have worked for three board chairs. I worked for three board members,

Yes.

all of whom were Republicans. Uh, but prior to that I have, uh, at many times been working on the staffs of, uh, of w- uh s- of a board member who was a a democrat uh

Y- you can have a republican that was appointed by a democrat.

That is correct, in fact we need one.

Um and I mean that's the law requires appointment of democrats and republicans,

That is correct.

so president, democratic president would have appointed perhaps some republicans.

Right.

OK. Um is the mission still uh at the NLRB to encourage the practice and procedure of collective bargaining.

Absolutely. It's statutorily required. It's a priority.

Okay, um, Ms. Kerry, for the record, what would you do with the additional money that you've requested that it would be difficult to do do without the additional money you're requesting?

Hire additional staff, implement training resources for all of our new staff and our existing ca- staff on efficient case handling methods.

Um, the we've

Um, every kind of case you can think of is in the backlog. Um, there's cases involving work roles, there's uh cases involving discharges, there's cases involving bargaining, organizing, duties of fair representation, failure to provide information. Um, you know, we currently have uh around eighteen thousand cases. that are pending in the investigatory s- stage.

And you've uh pointed out that you need additional staff so you can uh get to them more quickly. And you've pointed out that the workers have no private right of action, so they have to wait for the NLRB to decide the case. They can't go to court on their own. Is that right?

Correct.

Um, you have to facilitate the backlog, uh, developed a strategy to distribute cases to other offices. Uh some of us think this might be actually ineffective because the new office would have to investigate it and if they find merit, it has to come back to the original office, they have to start all over again. Uh we've written you a letter to um respond to in detail on that, so we'll just wait for the response on that. One um complaint we frequently hear is that there's no meaningful deterrent to discourage employers from committing unfair labor practices, for example if an employer fires somebody illegally for uh trying to organize a union, what kinds of penalties and sanctions can you impose?

Re-enstatement um of that employee, we can seek back pay and other um compensatory damages related to um, you know, when they were out of work, work for look for look for job um resources, things like that.

Um, but that's compensation, that's not a penalty.

Well, I mean, they have to put the worker back and they have to also administ post a notice, um, and distribute that to other employees.

That's not a penalty, that's just reinstating the status quo, is that right?

Well, I think the notice posting, um, most employers would argue is a penalty.

It's not a penalty like a fine.

Well, that's correct, we're not, we're not um, we do not have the ability to issue those types of things.

Another problem is if when a new u- union forms, um, they have, some have trouble getting a first contract, what can be done to ensure that an employer does not refuse to agree to a first contract?

Well, I mean, this is what we discussed earlier. So there, we have plenty of options in terms of unfair labor practices, but as we've talked to Iher, we need to be able to get to those unfair labor practices to have findings in relation to that so some of the remedies that could come out of an unfair labor

Uh, thank you. And while we're discussing um issues affecting unions, I just wanted to point out, Mister Chairman, that representatives from the Machinists, I AM Union and Unite Here are in the audience. Um, so thank you Mister Chairman, uh you're back.

I'm glad to recognize myself after five minutes. Um, there's no exaggeration that the NLRB, under the previous administration, rigged the system to favor union leadership over both workers and employers. That's a problem, a serious problem, since the NLRB is supposed to act as a neutral mediator between unions, workers, and employers. One example of the Byron e- Biden era overreach is its effort to reclassify independent contractors as employees, even when both employers and workers do not want the reclassificac reclassification. That's why I'm championing the Rural Health Care Act, which would codify local tenants as independent contractors. This legislation ensures that politically motivated decisions at the NLRB will not prevent these medical professions from offering their services in areas lacking health care resources I think our witnesses I think our witnesses for coming before the committee today and I look forward to learning about how you're resolving the mistakes of the previous administration. Uh, Miss Carey, uh, the National Board Relations Act protects not only worker rights, but all to organize, but also their rights to refrain from union activity. Could you discuss whether the Biden-Harris era general counsel's enforcement agenda adequately protected workers who chose not to unionize, who sought to decertify a union?

Unfortunately, I think a majority of the cases that were filed in terms of decertification petitions which you mentioned at the end were ultimately blocked by unfair labor practice proceedings and given the amount of cases that were pending in the backlog they were not prioritized in the way that they should have been in order to get a quicker resolution for those r d um or decertification petitions

and what are you doing to ensure that the agency serves all workers uh not just those who want to have a union representation

yeah i mean it's certainly inherent in the act that employees are protected even when they wanna refrain from doing that so in terms of addressing cases that are filed in relation to blocking charges which i mentioned which is a charge that would block a case or de-certification for moving forward, we do prioritize the processing of those types of cases in the regions, so that we can assure that they are processed quickly and that we can get to our resolution on the representation cases.

Okay, thank you. Uh, Mr. Burfery, uh, the Atlantic Opera decision reinstated an independent contractor classification standard that the DC cur uh circuit previously revoked, finding that the board created a standard inconsistent with common law. Restricting independent contractor status undermines the workers' freedom to choose how they work. Can you discuss the DC's circuit reasoning?

I can't uh discuss this DC circuit's reasoning specifically, but uh it the the current board position in Atlanta Opera certainly puts us in tension with the definition that the DC circuit has consistently um had. And I would also note that over the years there's been much back and forth with with respect to board precedent defining who is and who is not an independent uh contractor. Uh one s- possible solution to this back and forth would be legislative action. Um the board can only do so much. We may re- revisit and I believe we might already have pending before us a case asking to uh uh reconsider Atlanta Opera I can't talk about the specifics of that, but

Okay. And how might the full board be able to take steps to revisit the Atlanta Opera? and restore a classification standard that respects both judicial precedent and preference of workers who choose independent arrangements.

As I just mentioned, I think we do have cases pending or are likely to have cases pending that will give us that opportunity. The other alternative would be through rule making, but that's a rather extensive and long, long proc process.

Okay. Uh, under the uh Biden administration, then LNLBRB, General Counsel uh Bruzzo issued a memo stating that her belief that certain college athletes employees under the National Labor Relations Act. An LRB Regional Director later found Dartmouth basketball players should be employees and another NLRB Regional Director alleged that University of South Southern California student athletes are employees alth- al- although both of these cases was ultimately withdrawn could you discuss the factors that should be considered when classifying student athletes as employees, uh or not as, uh, employ employees under the act?

As you mentioned, both of those cases have washed out. I think that the National Labor Relations Board is ill-suited to resolve nationwide the issue of whether or not s- uh student athletes are employees or not employees because we only have jurisdiction over private, collegiate institutions. And uh the majority of the big four conferences that people refer to in the major sports the maj- the overwhelming majority consists of public institutions. So it might be preferable, I'm not advocating, but I'm saying it might be preferable for Congress an independent agency with jurisdiction over all of those entities for the specific purpose of establishing you know uniformity for and compensation for student athletes or however one wishes to define them.

Okay. Thank you. Uh I'm going to uh now

Miss Hayes actually is here.

One sec.

You're gonna rec- if you're done you're gonna recognize Miss Hayes.

It's okay. Now I'd like to r- recognize my friend from Connecticut, uh Miss Hayes.

Thank you, and thank you both for testifying today. There's lots of hearings going on. The NLRB has been unable to conduct normal business during much of the Trump administration due to a lack of a quorum on the board, we've heard that from many other members. This has caused a significant disruption to NLRB operations, including a backlog of over thirty-five hundred pending cases. These cases are critical to protecting the rights of employees to organize, determine union representation, and address unfair labor practices under the National Labor Relations Act. I appreciate the board prioritizing the backlog of cases. Still, I'm concerned the NLRB does not have sufficient staffing and resources to process the cases of the cases efficiently while ensuring protection for worker rights. Reports indicate the NL NLRB has less than seventy-five percent of the staff needed across all regional offices to handle the current caseloads. Further, the Trump administration has proposed an additional three percent funding cut of fourteen million dollars to the NLRB in FY twenty-seven, as caseloads continue to rise. Miss Casey, how would additional help funding the NLRB process How would additional funding help the NLRB process the backlog of cases and staffing needed across the board and what safeguards are in place to ensure the rights of workers are protected while the NLRB attempts to adjudicate this backlog, officially? efficiently.

Thank you. Um, yes, I mean, I agree. We we definitely need more staffing if we're going to attack the backlog in the way that it needs to be to get answers to workers. In terms of the steps that we're taking, every plan that we're putting into action right now in terms of attacking the backlog is based on the staffing that we have right now. We would love to have additional staff so that we can come at this from even additional layers and in different different directions. to be able to do this so we would obviously have to start with training for the new board agents who would be investigating and litigating any unfair labor practices so certainly any additional funding would be put toward um you know additional training for those new uh for all the new staff we also quite frankly are gonna have some space issues um there's been a lot of gsa realignments that have happened over the past five years that have reduced the significant amount of space for us as well

so i guess directly Can the NLRB handle it at current staffing levels with no changes? Do you feel confident that you could handle the work ahead?

We are only clearing about an additional a hundred and eight cases per month on top of what we're in-taking, so you can help me with the math on that, but at the

No, no, no. That's why you're here. Yes or no?

at at the current level, no.

No, thank you. Uh, the NLRB issued a landmark twenty twenty-four ruling regarding Amazon prohibitive captive audience meeting a- after my state. the state of Connecticut passed legislation to ban this practice two years earlier. Connecticut law prohibits employers from retaliating against workers who refuse to attend employer-mandated meetings on political or religious matters. These captive audience meetings are often used by employers to discourage workers from organizing or joining a union. A federal court upheld the Connecticut law in February. Mister Murphy, you stated earlier in this hearing that employers have the right to free speech when discussing the NLRB-Amazon ruling. While employers have a right to free speech, employees also have a right to explore their options without intimidation or coercion. Miss uh, Mister Murphy, I guess, has there been any instances where em- where employers have gone beyond free speech to discourage unionization in violation of the National Labor Relations Act?

Too many to count. Um, of course, uh, you know, the the freedom to engage in a captive audience uh, speech does not give employers the freedom to make threats in violation of the National Law Relations Act or to make promises of benefits in violation of the National Law Relations Act.

Thank you. I think many of these captive audience meetings go beyond free speech and discourage unionization and I hope that you will continue to abide by this precedent but also in closing I'd just like to remind everyone unions are the membership you know, I hear everyone in these committees talk about union bosses and union organizing. members, the workers, the people who who show up every day to work and earn a living wage, and we have a responsibility to them. That's what the Department of Labor should protect, those employees and their labor rights and their organiz organization rights. I mean, there may be uh corporations where employees choose not to unionize, but again it is their choice, and what we have to do is remove all the barriers so that they can make those decisions free from intimidation. Thank you and I yield back.

General Lady Yields, now I call on the ranking member, Mister Sagnier, for your line of questioning.

Thank you, Mister Chairman. Um Chairman Murphy, Miss Kerry, this has been a breath of fresh air, forgive us on our side if we're a little bit suspicious. Um it's not directed at you personally. Uh so I wanna a couple things. First of all, conflicts of interest, Kerry was brought up earlier about a potential conflict you had about recusing yourself and the timeline with Amazon. And then the previous administration there was a controversy with Board Member Emanuel, uh and Mister Murphy you were in the organization, so can both of you speak to um trust that this committee needs as far as uh disclosures and then more broadly trust about how we can work with you. If we're gonna get extra money nothing would n- make me happier than if you would just uh have the money and impose laws in a in a uh bipartisan fair way so first uh miss carrie i wanted to bring it up cause it was already brought up conflicts of interest

correct yes so um my ethics agreement is probably like it's available um you know we had a line of question about this as well at my nomination hearing um so basically my ethics agreement lays out all the parameters it is very matter specific so um you know there there are deadlines that are rolling deadlines under the ethics agreement. And in relation to that, I am in constant contact with the DAO, which is a designated agency ethics officer in our agency. And I also have two screeners in my front office that review cases before they come before me for consideration. Um, and I think that Laurel and Leneisa, who are here behind me and who are in my front office, would probably say I'm overly cautious at times in relation to any case I open um I always check the participant list prior to looking at anything in the file. So in terms of how I can make you more comfortable with the fact that I abide by my ethics agreement other than telling you what I just said in my sworn testimony, um I completely abide by that ethics agreement and I take it extremely seriously.

First with the ethics issues, you've been there for a long time, I really appreciate your service and being willing to come back. Um so on ethics first and then secondarily, Everything we've heard today is very positive. So how does a committee, both the chair and I in a bipartisan way, keep in communication, make sure we're helping, but also we're getting results, not just with the backlogs, but all the operations of the board.

As far as ethics are concerned, sir, I've forty-seven years of board experience, no uh uh experience outside,

Yeah.

and um I had to divest myself of my vast stock holdings of in four companies before uh right after I took office. So I have no recusal issues. uh, I've arranged made those arrangements through the uh Office of Ethics at the board. Um, as far as uh communications, I welcome them. Absolutely. At any point in time, uh, it doesn't have to be in in in this particular context, but as long as the communications do not involve a specific case, that well, I mean, I I I'm open to responding,

Understand.

particularly as to our operations and as to budget,

I

by all means, as anything that we can do to persuade the the House and Senate to give us at least as much as was asked in the OMB directed budget proposal and uh and hopefully more if you're willing to do so certainly not the two hundred million which would require a disastrous cut in agency operations.

And you you mentioned earlier and I would expect this from a Princeton graduate the ethical behavior um but you mentioned that you would resign if there was inappropriate pressure Could you um, given what you just said, could you speak a little bit more to that?

Well, I I I mean that, sir, uh, you know, if the president has the authority to fire a board member, and I have a feeling that the the Supreme Court in the slaughter decision will make that ruling, then if I am asked specifically to resolve a particular case on one way or another, um, a- apart from the facts and issues legal issues applicable to the case, I will uh recuse myself in the first instance from further participation in that case. And if that's not satisfactory to the person asking me to do something, then I would would resign.

One just last question. One experience I had in California when I was chair of the Labor Committee in the state senate, was it was the same employers breaking the laws and knowing very well that, um, government doesn't always work in the most coordinated efforts. So we created, in a bipartisan way, um, in inter-agency agreement with the used technology. So people who were failing to pay their franchise tax, their board of equalization, or breaking labor laws, it was all coordinated. And it was a great disincentive. And I'll tell you who was really supportive were good employers, because they were competing against people who weren't paying their taxes and weren't paying their workers' comp. So is there a potential that this committee could work with you to improve that? To because if you're a bad employer, if you're a bad human being, it's just Pavlov's dog, You're more likely not to do it if you know you're gonna get caught. We can continue.

I I'm sh- some type of some type of coordination might be appropriate, but again that becomes case specific,

Right. Appropriately.

so.

The John Yields now call on Miss Omar from Minnesota for your five minutes of questioning.

Thank you, Mister Chairman, um Miss Kerry, prior to your confirmation as General Counsel you served as a partner at Morgan Lewis, uh which is one of the most notorious union busting firms in the country. Uh Morgan Lewis represents some of the largest corporations fighting against worker organizing such as SpaceX, Tesla, and even Amazon. The reason I'm mentioning your former law firm is because your office is now given Amazon a major victory by pres- pursuing a settlement that shuts down a years-long case. This case could have found Amazon to be a joint employer of delivery delivery drivers and require it to bargain with its union workers. Amazon has fought for years against recognizing any responsibility for the delivery workers who wear its logo, drive its trucks, follow its instructions. In fact, there was a reason Bloomberg report published just this week that uncover the extensive control amazon has over its drivers, from controlling their routes to even their hygiene. Mister Chairman, I request unanimous consent to enter into the record the Bloomberg article titled, What Trump Delivered for Amazon.

Without objection.

Uh, Miss Kerry, you have been on the job for about six months, Uh, and we're already seeing one of the largest clients of your former firm get a bailout. I am deeply concerned about the conflict of interest here and about your willingness to enforce the law in good faith. Did you represent Amazon at Morgan Lewis?

I did.

Okay. So, why didn't you recuse yourself?

Because pursuant to the etheth ethics agreement, any recusal obligation would have expired in December. prior to me being sworn in.

Mm-hmm. In your confirmation hearing before the Senate, did you commit to recusing yourself from any enforcement decision or any actions involving Amazon?

During my confirmation hearing, Senator Hawley asked me at that moment if I would be recused from Amazon, and the answer in July of last year was yes.

And so what changed?

Com- pursuant to my ethics agreement that was approved by the Office of Government Ethics, My recusal to Amazon fell off in December prior to me being sworn in as general counsel.

Mm. Did you direct any regional staff to pursue a settlement with Amazon in Palmdale, California?

Um, yes, that is my job.

Uh, so the settlement lets Amazon walk away without ever being found a joint employer? Did you specifically provide that provision to be included?

So I can't talk about the case because it is still pending litigation. Amazon, I'm sorry, the team source filed a special appeal to the board, um, which will be sitting before Jim. I have filed an answer to that appeal, which was filed late last night. I will say, and I think it would be worth your while if you have not, is to read the administrative law judge's decision in approving that settlement. It is very telling, and the facts that she relayed are very accurate in relation to questions and relation to the underlying authorization. um and recognition in general and additionally i think that she did a great job in laying out how this what actually comports with long standing board law and results in a quicker settlement where employees would actually get a much faster resolution

mmm did anyone from the white house or political appointee um contact you regarding this case or other amazon cases

no

um so we are to believe that amazon which donated uh one million dollars to the Trump inauguration, got the most favorable position outcome, and nobody made a call. That sounds like a huge coincidence. Uh, will you provide the committee with a list of cases you have recused yourself from since you've been sworn in?

I am sure we can get that for you.

Um, Miss Casey, your job is to protect workers and to hold law-breaking companies accountable. You are not here to give your former clients or this administration's friends a get-out-of-jail-free card. Mister Chairman, I request unanimous consent to enter into the record the transcript from Miss Casey's confirmation hearing.

Without objection.

Thank you and I yield back.

General, lady yields. Okay. And I wanna thank our witnesses uh for um uh very candid and and very um truthful and factual responses to our question today. And uh it was a a brilliant um hearing, I believe, and I believe that uh ranking member will agree with me on that. Um and so uh with that I will recognize the ranking member for your closing remarks.

Mr. Chairman, everybody laughed when you said that, cuz I You didn't see me, I was shaking your head, my head no. Um, just in the spirit of, never mind. I just wanna thank you both. This is a - a breath of fresh air. Um, both of us were talking. We'd like to work with you together. We're gonna have differences, but that's okay. Um, all of the - My colleagues are probably sick of me bringing up the Eisenhower quote where he said only a fool would come between an American worker and their ability to organize. And that's from, I believe, um as somebody who's read everything I can about the former president that he realized in his experience as a a military leader but also as a logistics expert that he needed average Americans to fight a war, to build an economy, and to win a war. Well he valued that very really and I think we can do that in this country and still have people be very successful on the investment side, but we have to have those countervailing institutions and you are in charge of uh in many ways protecting one of those countervailing institutions. Mister Murphy, you know this from almost fifty years. So I just wanna say I'm encouraged. I look forward to working with you. Miss Kerry, I don't know if you've gone to the Regional Administrative Office in San Francisco, but if if you haven't yet, um I'd be happy to join you there. Um I kn- I know that area well. I used to have a restaurant right around the corner and had the Biden R- Regional Administrator in every once in a while. So I look forward to working with you, but um don't be offended if I I wanna hold you accountable and make sure that that trust continues to be earned. Thanks so much, Mister Chairman, and I yield back.

I thank I thank the ranking member. Again, I thank our witnesses for your testimony and for shedding light on the challenges the NLRB is facing today, and I commend the agency for actively working to clean up the mess left by the previous administration. Today's discussion reinforced how the Biden-Harris NLRB departed from neutrality, tilting toward union leaders at the expense of worker choice and long-standing precedent. The Biden's board policy choices left the agency with a staggering case backlog and undermined the board's ability to carry out its purpose under the act, and to function as a fair and efficient arbiter of workplace disputes. Chairman Murthy and General Counsel Kerry now faced a significant task of restoring balance at the agency ensuring that cases are processed efficiently and reestablishing the board's neutral role. Filling vacant board seats remains essential so the agency can decide cases more quickly and restore the precedent the Biden board cast aside. I ge- again urge the Senate to confirm President Trump's nominees. I look forward to continuing to work with my colleagues and with today's witnesses to make sure the NLRB protects workers' rights, respects employers' obligation and operates with fairness and stability stability. And you have my commitment on that, and I look forward to working with you, uh uh i- as we continue through this process. And thank you for your great work and uh in dealing with this backlog and uh uh with that, uh

Mr. Chairman,

yes.

sorry to interrupt, I just want to request unanimous consent to enter into the record and oversight letter, uh from ranking members Scott and I, and also from an article from the New Republic, how Trump is wrecking the agency that protects workers' labor rates.

Without objection.

Thank you.

Okay, with that, uh, again I'd like to, uh, thank the witnesses for your time and the subcommittee today, and without objection, there being no further business, the subcommittee stands adjourned.