[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]





              CULTURE OF UNION FAVORITISM: RECENT ACTIONS
                 OF THE NATIONAL LABOR RELATIONS BOARD

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, SEPTEMBER 22, 2011

                               __________

                           Serial No. 112-40

                               __________

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Dale E. Kildee, Michigan
Judy Biggert, Illinois               Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Bob Goodlatte, Virginia              Lynn C. Woolsey, California
Duncan Hunter, California            Ruben Hinojosa, Texas
David P. Roe, Tennessee              Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania         John F. Tierney, Massachusetts
Tim Walberg, Michigan                Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee          Rush D. Holt, New Jersey
Richard L. Hanna, New York           Susan A. Davis, California
Todd Rokita, Indiana                 Raul M. Grijalva, Arizona
Larry Bucshon, Indiana               Timothy H. Bishop, New York
Trey Gowdy, South Carolina           David Loebsack, Iowa
Lou Barletta, Pennsylvania           Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota         Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director











                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on September 22, 2011...............................     1

Statement of Members:
    Kline, Hon. John, Chairman, Committee on Education and the 
      Workforce..................................................     1
        Prepared statement of....................................     3
    Miller, Hon. George, senior Democratic member, Committee on 
      Education and the Workforce................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Ivey, Barbara, employee, Kaiser Permanente Northwest.........    14
        Prepared statement of....................................    17
    King, G. Roger, partner, Jones Day...........................    39
        Prepared statement of....................................    41
    Mack, Curtis L., partner, McGuireWoods LLP...................     8
        Prepared statement of....................................     9
    Martin, Arthur J., partner, Schuchat, Cook & Werner..........    23
        Prepared statement of....................................    26

Additional Submission:
    Chairman Kline:
        HR Policy Association, prepared statement of.............    85

 
                      CULTURE OF UNION FAVORITISM:
                         RECENT ACTIONS OF THE
                     NATIONAL LABOR RELATIONS BOARD

                              ----------                              


                      Thursday, September 22, 2011

                     U.S. House of Representatives

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:04 a.m., in room 
2175, Rayburn House Office Building, Hon. John Kline [chairman 
of the committee] presiding.
    Present: Representatives Kline, Petri, Platts, Wilson, 
Foxx, Goodlatte, Roe, Thompson, Walberg, DesJarlais, Hanna, 
Bucshon, Gowdy, Roby, Heck, Ross, Kelly, Miller, Kildee, Payne, 
Andrews, Woolsey, Tierney, Kucinich, Holt, and Altmire.
    Staff present: Katherine Bathgate, Press Assistant/New 
Media Coordinator; Casey Buboltz, Coalitions and Member 
Services Coordinator; Ed Gilroy, Director of Workforce Policy; 
Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce 
Policy Counsel; Barrett Karr, Staff Director; Ryan Kearney, 
Legislative Assistant; Krisann Pearce, General Counsel; Molly 
McLaughlin Salmi, Deputy Director of Workforce Policy; Alex 
Sollberger, Communications Director; Linda Stevens, Chief 
Clerk/Assistant to the General Counsel; Alissa Strawcutter, 
Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Kate 
Ahlgren, Investigative Counsel; Aaron Albright, Communications 
Director for Labor; Jody Calemine, Staff Director; John D'Elia, 
Staff Assistant; Brian Levin, New Media Press Assistant; Celine 
McNicholas, Labor Counsel; Richard Miller, Senior Labor Policy 
Advisor; Julie Peller, Deputy Staff Director; and Michael Zola, 
Senior Counsel.
    Chairman Kline. A quorum being present, the committee will 
come to order. Good morning, everybody. I would like to welcome 
our guests and thank our witnesses for being with us today.
    In late August the National Labor Relations Board 
introduced a series of sweeping changes to federal labor 
policy. Through three decisions handed down in one afternoon, 
the board restricted workers' right to a secret ballot 
election; undermined employers' ability to maintain unity in 
the workplace; and created new barriers for those who wish to 
challenge union representation.
    For anyone following this Obama board, this barrage of 
activist decisions, however unacceptable, was not unexpected. 
But for workers and job creators struggling to move this 
country forward, it is an outrage.
    Further, it is a roadblock to the strong economy our nation 
desperately needs. It is unthinkable that any federal board 
would launch such a deliberate assault on our workforce system, 
especially with millions of Americans unemployed. And it is 
unconscionable for Congress to stand by and let it happen. That 
is why we are here today. And we have a great deal to discuss.
    In its specialty health care decision, the board discarded 
decades of precedent in order to adopt a strict standard for 
determining which group or unit of employees can vote in a 
union election. Union leaders have long tried to organize 
smaller units of employees as an incremental step toward 
organizing an entire business. In an effort to preserve unity 
in the workplace and keep labor costs low, employers often seek 
to expand the unit to include a greater number of employees.
    Under the board's new standard it will be virtually 
impossible for employers to challenge the group of employees 
hand-picked by the union. The new standard empowers union 
leaders to manipulate workplaces for their own gain with 
dramatic consequences in the real world. Some employers will be 
constantly engaged in costly labor disputes, and workers will 
compete against their coworkers for wages and benefits.
    The August onslaught also includes a decision that 
restricts workers' rights to a secret ballot union election. In 
its 2007 Dana decision, the board provided workers 45 days to 
request a secret ballot election if their employer had 
voluntarily recognized union representation.
    We all know that a secret ballot election is the best way 
to determine the will of workers without fear of coercion and 
intimidation. Remarkably, the Obama board shut this 45-day 
window. Now, if an employee voluntarily recognizes a union, 
workers may have to wait months and possibly years before they 
can cast a secret ballot.
    At a recent hearing, the committee's senior Democrat noted, 
``If workers want an election they should get an election. They 
should not be met with fear, intimidation or delay for the sake 
of delay.'' I could not agree more. And I hope that he will 
join me in condemning these decisions.
    Meanwhile, the board is drafting new rules to govern union 
elections that will stifle employers' free speech and cripple 
workers' free choice, and is requiring employers to promote 
unionization in the workplace through a vague and biased notice 
drafted by board bureaucrats. The goal of the board's activism 
is clear; to expand the power of big labor by swelling the 
ranks of unionized workers, whatever the cost to the American 
people. The fact that this agenda is not supported by any 
sensible reading of the law does not appear to bother the board 
or its allies.
    In closing, I would like to address what this all means for 
the American people, and why this hearing is so important. 
Across the country small employers are struggling to grow their 
businesses and hire new workers. The president has proposed 
$1.5 trillion, $1.5 trillion in tax hikes that will fall 
heavily on their shoulders.
    Federal bureaucrats are crafting more than 200 significant 
new regulations, some of which will affect these small 
employers. And now they must contend with a federal board 
advancing policies that raise the cost of doing business, 
restrict their right to speak with employees and undermine 
common-sense protections for workers.
    Why would anyone create a new job in this kind of chilling 
environment? These are the real headwinds facing our economy. 
The NLRB's assault on American workers and job creators is 
undermining our nation's ability to grow and prosper.
    Congress cannot stand by and allow an unelected board to 
wreak havoc on our workforce. We must stand up and do the job 
we were sent here to do.
    And now I would like to recognize the aforementioned senior 
Democrat for his opening remarks.
    [The statement of Chairman Kline follows:]

            Prepared Statement of Hon. John Kline, Chairman,
                Committee on Education and the Workforce

    Good morning. I would like to welcome our guests and thank our 
witnesses for being with us today.
    In late August, the National Labor Relations Board introduced a 
series of sweeping changes to federal labor policy. Through three 
decisions handed down in one afternoon, the board restricted workers' 
right to a secret ballot election, undermined employers' ability to 
maintain unity in the workplace, and created new barriers for those who 
wish to challenge union representation.
    For anyone following the Obama board, this barrage of activist 
decisions--however unacceptable--was not unexpected. But for workers 
and job creators struggling to move this country forward, it is an 
outrage.
    Further, it is a roadblock to the strong economy our nation 
desperately needs. It's unthinkable that any federal board would launch 
such a deliberate assault on our workforce, especially with millions of 
Americans unemployed. And it's unconscionable for Congress to stand by 
and let it happen. That is why we are here today, and we have a great 
deal to discuss.
    In its Specialty Healthcare decision, the board discarded decades 
of precedent in order to adopt a strict standard for determining which 
group or ``unit'' of employees can vote in a union election. Union 
leaders have long tried to organize smaller units of employees as an 
incremental step toward organizing an entire business. In an effort to 
preserve unity in the workplace and keep labor costs low, employers 
often seek to expand the unit to include a greater number of employees.
    Under the board's new standard, it will be virtually impossible for 
employers to challenge the group of employees handpicked by the union. 
The new standard empowers union leaders to manipulate workplaces for 
their own gain, with dramatic consequences in the real world. Some 
employers will be constantly engaged in costly labor disputes and 
workers will compete against their coworkers for wages and benefits.
    The August onslaught also includes a decision that restricts 
workers' right to a secret ballot union election. In its 2007 Dana 
decision, the board provided workers 45 days to request a secret ballot 
election if their employer voluntarily recognized union representation. 
We all know that a secret ballot election is the best way to determine 
the will of workers, without fear of coercion and intimidation. 
Remarkably, the Obama board shut this 45 day window. Now, if an 
employer voluntarily recognizes a union, workers may have to wait 
months and possibly years before they can cast a secret ballot.
    At a recent hearing, the committee's senior Democrat noted, ``If 
workers want an election, they should get an election. They shouldn't 
be met with fear, intimidation or delay for the sake of delay.'' I 
couldn't agree more, and I hope he'll join me in condemning these 
decisions.
    Meanwhile, the board is drafting new rules to govern union 
elections that will stifle employers' free speech and cripple workers' 
free choice, and is requiring employers to promote unionization in the 
workplace through a vague and biased notice drafted by board 
bureaucrats.
    The goal of the board's activism is clear: To expand the power of 
Big Labor by swelling the ranks of unionized workers, whatever the 
costs to the American people. The fact that this agenda is not 
supported by any sensible reading of the law doesn't appear to bother 
the board or its allies.
    In closing, I'd like to address what this all means for the 
American people and why this hearing is so important.
    Across the country, small employers are struggling to grow their 
businesses and hire new workers. The president has proposed $1.5 
trillion in tax hikes that will fall heavily on their shoulders. 
Federal bureaucrats are crafting more than 200 significant new 
regulations, some of which will affect these small employers. And now 
they must contend with a federal board advancing policies that raise 
the cost of doing business, restrict their right to speak with 
employees, and undermine commonsense protections for workers.
    Why would anyone create a new job in this kind of chilling 
environment? These are the real headwinds facing our economy. The 
NLRB's assault on American workers and job creators is undermining our 
nation's ability to grow and prosper. Congress cannot stand by and 
allow an unelected board to wreak havoc on our workforce. We must stand 
up and do the job we were sent here to do.
                                 ______
                                 
    Mr. Miller. Or another version of history.
    The committee meets this morning for--thank you, Mr. 
Chairman. The committee meets this morning for yet another 
partisan hearing on the National Labor Relations Board. This is 
the fourth such hearing on this relatively small agency that 
enforces Americans' labor rights. This hearing falls before 
action on a bill to protect corporations that unlawfully 
outsource American jobs in retaliation against workers 
exercising their rights under the law. By giving lawbreakers a 
free pass, the bill also disadvantages employers who play by 
the rules.
    Mr. Chairman, I just wish the House would put half as much 
effort into addressing America's top concern of jobs in the 
economy. As I wrote you nearly 2 weeks ago, that President 
Obama proposed a numbers specific and historically bipartisan 
initiative to get America back to work, and a number of these 
proposals fall within this committee's jurisdiction.
    For instance, we should be exploring the need for school 
repair and modernization funding, new ideas on job training or 
looking into how massive layoffs of teachers are impacting our 
nation's schoolchildren. Instead, we are meeting to retread the 
majority's attack on the National Labor Relations Board.
    Listening to some of the rhetoric coming from you and 
others on the other side, you would think that the Obama 
administration cried havoc and let slip the dogs of war against 
the American way of life. Nothing of this sort is remotely 
occurring.
    This campaign does nothing to create jobs, rather, it 
merely sews fear and false doubt among employers whose biggest 
problem right now is the lack of demand, the lack of customers 
and the lack of resources on Main Street; not the 1935 Wagner 
Act. But since we are here, let us address a few issues raised 
by the majority.
    Any sober look at the recent proposals in the decisions 
made by the National Labor Relations Board would conclude that 
they have been modest, addressed real-world problems. In one 
case overturned the controversial Bush-year Dana decision, 
which itself overturned decades of precedent that gave 
bargaining relationships a chance to succeed without--following 
voluntary union recognition before entertaining decertification 
petitions. This decision is not radical. It is entirely 
consistent with the law's goal of encouraging collective 
bargaining and stable labor relations.
    Another decision appropriately ruled that certified nursing 
assistants can be considered a bargaining unit by themselves 
like any other profession. The specialty decision applies the 
same traditional community of interest test to non-acute health 
care facilities as generally used in other workplaces. The 
decision borrows from a recent D.C. Court of Appeals opinion 
offered by a Republican judge.
    Applying the law equally to nursing assistants as every 
other American worker is hardly radical. Likewise, many 
corporate special interests have objected to the board's 
decision that upholds the workers' basic First Amendment right 
to free speech. A worker should not have to give up his or her 
First Amendment rights when they peacefully hold up a banner or 
pass out leaflets outside a workplace.
    And despite the overblown title of this hearing, the 
current board has issued a number of decisions favorable to 
organized labor, favorable and unfavorable to organized labor, 
and favorable and unfavorable to employers. They have both won 
and lost before this board.
    Finally, the National Labor Relations Board has issued 
requirement that businesses post a free notice in the workplace 
outlining the basic rights and responsibilities of both workers 
and employers under the National Labor Relations Act.
    The poster is balanced, and clearly states that workers 
have a right, one, to form a--to form, join and assist a union; 
to bargain collectively; to strike and picket; and to engage in 
or refrain from other activity. The notice also makes it clear 
that workers have a right not to join a union or engage in any 
of these activities.
    Clearly too many workers do not know their rights. And it 
is obvious that neither do many of the employers. If you read 
some of the statements received during the public comment 
period on the rule. One employer wrote that belonging to a 
union is a privilege and a preference, not a right. Wrong. 
Another commented that if a person so desires to be employed by 
a union company they should take their explicative deleted to a 
union company and apply for a union job.
    These comments make it clear why it is important that the 
protection that is written into the law should not remain a 
secret. In addition to informing employees of their rights, the 
notices may have the beneficial side effect of informing 
employers and perhaps some members of Congress about the law.
    In conclusion, this committee should be doing whatever it 
can to grow and strengthen our nation's middle class because we 
know that when working families are doing well, the country is 
strong. But you do not strengthen middle class if you fear 
American workers and their rights to organize. And you do not 
strengthen middle class if you pass bills to make it easier to 
outsource their jobs. And you do not help working families when 
you ignore our nation's job crisis.
    Mr. Chairman, there is still time to get the committee back 
on track with the American people's agenda. But that time is 
running short.
    And I yield back the balance of my time.
    [The statement of Mr. Miller follows:]

  Prepared Statement of Hon. George Miller, Senior Democratic Member, 
                Committee on Education and the Workforce

    The committee meets this morning for yet another partisan hearing 
on the National Labor Relations Board. This is the fourth such hearing 
on this relatively small agency that enforces Americans' labor rights.
    This hearing follows floor action on a bill to protect corporations 
that unlawfully outsource American jobs in retaliation against workers 
exercising their rights. By giving law breakers a free pass, this bill 
also disadvantages employers who play by the rules.
    Mr. Chairman, I just wish this House would put half as much effort 
into addressing America's top concern of jobs and the economy. As I 
wrote you nearly two weeks ago, President Obama proposed a number of 
specific and historically bipartisan initiatives to get America back to 
work. And a number of these proposals fall within this committee's 
jurisdiction.
    For instance, we should be exploring the need for school repair and 
modernization funding, new ideas on job training, or looking into how 
massive layoffs of teachers are impacting our nation's schoolchildren.
    Instead, we are meeting to retread the majority's attacks on the 
National Labor Relations Board.
    Listening to some of the rhetoric coming from the other side, you 
would think that the Obama administration has cried havoc and let slip 
the dogs of war against the American way of life.
    Nothing of this sort is remotely occurring. This rhetoric is 
entirely overblown and often downright misleading. It is dangerous and 
irresponsible, and appears to be part of a cynical effort to avoid 
taking action on jobs.
    Let's be frank. A great deal of money is being made by using the 
National Labor Relations Board as a political whipping post. And a 
great deal of money is being made off of needlessly frightening 
employers and the American people.
    This has to stop. And stop now.
    This campaign does nothing to create jobs. Rather, it merely sows 
fear and false doubt among employers whose biggest problem right now is 
lack of demand, not the 1935 Wagner Act.
    But since we are here, let's address a few issues raised by the 
majority. Any sober look at recent proposals and decisions made by the 
NLRB would conclude that they have been modest and address real-world 
problems.
    One case overturned the controversial Bush-era Dana decision, which 
itself overturned decades of precedent that gave bargaining 
relationships a chance to succeed following voluntary union recognition 
before entertaining decertification petitions. This decision is not 
radical. It is entirely consistent with the law's goal of encouraging 
collective bargaining and stable labor relations.
    Another decision appropriately ruled that certified nursing 
assistants can be considered a bargaining unit by themselves like any 
other profession. The Specialty decision applies the same traditional 
``community of interest'' test in non-acute health care facilities as 
is generally used in other workplaces. The decision borrows from a 
recent D.C. Court of Appeals opinion authored by a Republican judge.
    Applying the law equally to nursing assistants as every other 
American worker is hardly radical.
    Likewise, many corporate special interests have objected to the 
Board's decisions that uphold workers' basic First Amendment right to 
free speech. A worker shouldn't have to give up his or her First 
Amendment right when they peacefully hold up a banner or pass out 
leaflets outside of a workplace.
    And despite the overblown title of this hearing, the current Board 
has issued a number of decisions unfavorable to organized labor. Both 
unions and employers have won before the current Board.
    Finally, the NLRB has issued a requirement that businesses post a 
free notice in the workplace outlining the basic rights and 
responsibilities of both workers and employers under the National Labor 
Relations Act.
    The poster is balanced and clearly states that workers have the 
right:
     To form, join, and assist a union;
     to bargain collectively;
     to strike and picket; and
     to engage in--or refrain from--other protected activity.
    The notice also makes it clear that workers have the right not to 
join a union or engage in any of these activities.
    Clearly, too many workers don't know their rights. And it is 
obvious that neither do many employers if you read some of the 
statements received during the public comment period on this rule. One 
employer wrote that ``belonging to a union is a privilege and a 
preference--not a right.'' Another commented that ``if a person so 
desires to be employed by a union company, they should take their 
[expletive] to a union company and apply for a union job.''
    These comments make clear why it's important that the protections 
written into law shouldn't remain a secret. In addition to informing 
employees of their rights, the notice may have the beneficial side 
effect of informing employers--and perhaps some members of Congress--
about the law.
    In conclusion, this Committee should be doing whatever it can to 
grow and strengthen our nation's middle class. Because we know that 
when working families are doing well, the country is strong.
    But you don't strengthen the middle class if you fear America's 
workers and their right to organize. You don't strengthen the middle 
class if you pass bills to make it easier to outsource their jobs. And, 
you don't help working families when you ignore our nation's jobs 
crisis.
    Mr. Chairman, there is still time to get the Committee back on 
track with the American people's agenda. But that time is running 
short.
    I yield back.
                                 ______
                                 
    Chairman Kline. I thank the gentleman.
    As such, the Committee Rules 7C, all committee members will 
be permitted to submit written statements to be included in the 
permanent hearing record. And without objection, the hearing 
record will remain open for 14 days to allow statements, 
questions to the record and other extraneous material 
referenced during the hearing to be submitted in the official 
hearing record.
    It is now my pleasure to introduce our distinguished panel 
of witnesses.
    Mr. Curtis L. Mack is a partner with McGuireWoods and an 
adjunct professor of labor law at the University of Michigan 
Law School. Prior to entering private practice, from 1976 to 
1981, Mr. Mack served as director of the NLRB's Region 10 
office.
    Ms. Barbara Ivey is an employee of Kaiser Permanente 
Northwest. After Kaiser Permanente voluntarily recognized the 
Service Employees International Union, Local 49, Ms. Ivy 
requested a secret ballot election. When the election was 
scheduled, pursuant to the holding in Lamons Gasket, Ms. Ivy's 
request has been dismissed.
    Mr. Arthur J. Martin is a partner with Schuchat, Cook & 
Werner, and is an adjunct professor at the St. Louis University 
School of Law. He is an active member of the AFL-CIO Lawyers 
Coordinating Committee, and contributing editor of the AFL-CIO 
Building and Construction Trades Campaign Guide.
    Mr. G. Roger King is a partner with Jones Day. Prior to 
moving to the private sector, Mr. King served as a labor 
counsel in the U.S. Senate.
    Welcome all of you. Before I recognize each of you to 
provide your testimony, let me briefly explain our high-tech 
lighting system.
    You will each have 5 minutes to present your testimony. 
When you begin the light in front of you will turn green. When 
1 minute is left, the light will turn yellow. When your time 
has expired the light will turn red, at which point I would ask 
that you please wrap up your remarks as best you are able and 
as quickly as you can.
    After everyone has testified, members will each have 5 
minutes to ask questions of the panel. And I would remind all 
of you that your entire written testimony will be included in 
the record if you do not have a chance to get through it in 
your 5 minutes of oral testimony.
    Now, we will start with Mr. Mack. Sir, you are recognized 
for 5 minutes.

             STATEMENT OF CURTIS L. MACK, PARTNER,
                       MCGUIRE WOODS, LLP

    Mr. Mack. Good morning, Mr. Chairman and members of the 
committee. Thanks for the invitation to testify before the 
group today.
    As the chairman pointed out, I was formerly regional 
director of the National Labor Relations Board in Atlanta, 
Atlanta, Georgia. I would also like to point out to the 
chairman and members of the committee that I am one of those 
1960s, left-wing, liberal Democrats, and strong supporter and 
admirer of the president and this administration.
    Now, having said that, I would like to move on to talk 
about three cases by the NLRB during the last year, primarily 
the month of August, and talk about two sets of rules at the 
NLRB, one they promulgated and one that is being contemplated. 
I find both of my experience as a regional director and a 
lawyer, those cases really do not have the process of 
collective bargaining, and they tend to ignore and trample the 
rights of employees.
    Starting first I would like to talk about the Lamons Gasket 
company case, which overruled the Dana company's case, which I 
thought was a very good decision. In the Dana case the board 
had held, correctly so, that whenever an employer in a union 
entered into voluntary recognition employees had 45 days to 
file a petition.
    Lamons Gasket overruled that decision, and it really shut 
the employees out from any possibility of calling the employer 
and union to task about the validity of the union recognition. 
So, that is a bad decision.
    The second one I would like to talk about is the Euweo 
case, and that deals with a so-called special bar. Under said 
law prior to this case an employer acquiring an operation 
became a successor, had an obligation under certain 
circumstance to bargain with the union. At the course of the 
bargaining the employer concluded that the union no longer 
represented the majority. Of the employees' desire to get rid 
of the union, no longer wanting its services they could file a 
petition and go to an election.
    In this case, overrule that body of law and in effect it 
required the employees and the employer to continue to deal 
with the union, which was no longer desirable, and did not give 
the employees the opportunity to rid themselves of that union. 
So, it locks the employees into this relationship for 2, 3 or 4 
years, even though they may no longer want the union.
    The last case I want to talk about is the specialty health 
care case. Special health care essentially gutted from the 
board jargon, the board jurisprudence all cases dealing with 
the doctrine of community of interest, notwithstanding the 
board articulation to the contrary. What the board said in the 
special health care case is any group of employees, so long as 
they are earning the same salary, similar salary, perform the 
same job, they have a community of interest and they are stuck 
and they have to be certified as a union--unit.
    In my experience as regional director of the board, I would 
have been compelled to certify any group of employees that the 
union filed a petition for. That is not good labor relations; 
not good for the employer and the union. It is horrendous for 
the employees. It crippled the opportunity for the employees to 
move from one job to another, for the wise utilization of 
employees and their skills. So, it too is a bad decision.
    Moving then to the board rules and regulations, one of the 
ones the board is contemplating is shortening the time to get 
to an election, i.e. from here going forward all election must 
be conducted in 14 days. That is contrary to what the board 
policy is now. Whenever a petition is filed the regional 
directors strive to get to an election in 42 days.
    The 42 days makes good sense because it gives the employer 
an opportunity to address the employees regarding the 
feasibility, the desirability of having a union. And more 
importantly, it gives the employees an opportunity to talk and 
cajole each other about whether they want or do not want a 
union. By reducing this time down to 14 days, it really 
eviscerates Section 8C of the National Labor Relations Act, 
which give the employee the opportunity to communicate.
    Under the 14-day rule the board says it is contemplating 
not deciding very important questions until after the election. 
So, bargaining unit employees have no idea whether they are in 
or out of the unit until after the election. So, they have no 
desire to compete or campaign for a union.
    And then we move to the rule which the board has put in 
place now that you got to post a notice to employees, advising 
them of the right to form or join a union. We need to point out 
that the NLRB has existed for about 75 years without the need 
of such rule, and there is nothing in the statute that 
contemplate the posing of such a ruling.
    The board tries to ride itself on a case that came out of 
the ADEA. But clearly the ADEA specifically says by Congress 
that the employer shall post a notice. There is no similar 
comparable language under the National Labor Relations Act.
    So, I think this rule, in addition to exceeding the board's 
authority, it fails to articulate in any reasonable way all the 
employees' rights with respect to joining and not joining the 
union, what happens if they join a union, how they can 
extricate themselves for a union. It is just a bad rule.
    Thank you, Mr. Chairman and members of the committee.
    [The statement of Mr. Mack follows:]

  Prepared Statement of Curtis L. Mack, Partner, McGuireWoods LLP \1\

    Chairman Kline and members of the Committee, thank you for inviting 
me here to testify today. My name is Curtis Mack. I am a partner with 
the law firm of McGuireWoods LLP, where I represent employers in the 
public and private sectors. I served as regional director of Region 10 
of the National Labor Relations Board (hereinafter ``the Board'') from 
1976 to 1981. I served as an NLRB trial attorney from 1970 to 1972 in 
Cleveland, Ohio. I would like to preface my remarks by stating that I 
am a life-long liberal Democrat and a loyal supporter of President 
Obama.
    I appreciate the opportunity to appear before this Committee to 
address three (3) recent Board decisions, a proposal to change election 
procedures and a new rule requiring employers to post a notice 
purporting to advise employees of their rights under the National Labor 
Relations Act (hereinafter ``the Act.'') I believe these rules and 
decisions come at the expense of employees and emasculate Section 7 of 
the Act. They will interfere with employees' rights to decide for 
themselves whether to join a union or refrain from joining or 
supporting a union. These actions will also interfere with employers' 
rights to communicate with their employees regarding unionization 
issues. In short, the only beneficiaries of these new rules and 
decisions are unions.
    It is no secret that the percentage of American workers 
participating in unions has declined steadily for years.\2\ The Board 
is aware of that trend and is responding by setting an agenda of its 
own to reverse it. These changes will come at a cost to employers and 
to employees.
    The rule regarding notice posting and the proposed rule to shorten 
the timeframe preceding the election completely ignore the fact that 
when enacting the Act, Congress conferred on working Americans not one, 
but two, rights: the right to support and form unions and the right to 
refrain from such activities. There is nothing in the Act which 
evidences any Congressional intent to give either right any greater 
value than the other. It is beyond any doubt that neither right can be 
intelligently exercised without the employee having the opportunity to 
obtain appropriate information regarding the value and cost of 
unionization. Even more important, employees must have sufficient time 
to discuss and debate among themselves the pros and cons of 
unionization. The Board's proposed rules setting an arbitrary timeframe 
for holding an election after the filing of a petition eliminate this 
opportunity without offering any compelling justification.
    Congress initially designed the Act to encourage unionization, but 
in 1947, it amended the Act to bring to the fore the right of employees 
to choose. Today, the Board is refusing to recognize Congressional 
action and is ignoring a Congressional mandate.
I. An expedited election will abrogate employee rights under Section 7
    The Board has proposed accelerating the timeframe for a 
representation election. There is no justification for holding a secret 
ballot election in fourteen (14) days. Holding an election in fourteen 
(14) days is unfair to all parties. Currently, the Board strives to 
hold elections within forty-two (42) days after a petition is filed.\3\ 
Other than the bald assertion that the proposed rule will shorten the 
process and eliminate pre-election litigation, the Board has failed to 
articulate any reason for fixing that which is not broken. Unions won 
67.6% of representative elections in 2010 and have won more than half 
of all representative elections in each of the past fourteen (14) 
years, according to the Bureau of National Affairs. As discussed below, 
the Board's articulated reasons do not withstand scrutiny.
    Shortening the process is a bad idea. The accelerated timeframe 
would sharply reduce the time for employees to weigh whether or not to 
support a union. Employees would have significantly less time to 
conduct independent research and debate the pros and cons of collective 
bargaining with co-workers, who may work on different shifts and 
schedules. Employees are entitled to scrutinize the union and to 
converse with each other about joining or not joining a union. The 
Board should not cut short this valuable process. Unionization results 
in a significant change in the circumstances of an individual's 
employment. Monthly dues and possible strikes become realities. Once a 
union is voted in, employees no longer represent themselves.\4\ Two or 
three weeks is simply not enough time for an employee to decide whether 
joining a union is the right choice.
    Second, the accelerated election schedule would interfere with 
employers' right to discuss collective bargaining with employees and 
employees' right to discuss collective bargaining among themselves.\5\ 
A union could campaign quietly for months, with the employer learning 
of the campaign only after the petition is filed with the Board and 
find itself facing a secret ballot election in just a few days. The Act 
gives employers the right to communicate facts about unionization and 
their beliefs to employees and employees to discuss unionization among 
themselves.\6\ The employer has less time to respond to the union's 
misrepresentations.\7\ The proposed rule shortening the time for the 
election would force employers to convey its position on unionization 
to employees in just a few days and stifle the employees' rights 
guaranteed under the Act.
    Further, employees need to be fully informed about the realities of 
a strike, collective bargaining and even monthly union dues. Employees 
are unlikely to hear of the cold realities of collective bargaining 
from the union. Employees have a right to communicate their views to 
each other. If the timeframe is shortened to as little as fourteen (14) 
days, the Board will wipe out the employer's right to share important 
facts with the employees or respond to misrepresentations made by the 
union during the short campaign period.
    Another problem with the Proposed Rule is that it postpones most 
challenges to the proposed bargaining unit until after the election.\8\ 
In almost every campaign, there is debate about which employees should 
be in a bargaining unit. Unions have notions about who should be in the 
bargaining unit, and generally try to keep the unit size as small as 
possible. Employers have ideas about who should be in the unit. Under 
the statute, the employees in a collective bargaining unit must share a 
``community of interest.'' There is almost always disagreement 
regarding which groups of employees share a ``community of interest.'' 
Waiting until after the election to resolve these disputes denies 
employees the opportunity to make an informed choice before exercising 
their Section 7 rights. Employees may not want to be in a unit that 
includes particular job classifications. Importantly, the delayed 
decision has the potential of leaving large numbers of employees 
uncertain with regards to their interest in the election or how they 
will be affected by the outcome.
    Postponing bargaining unit challenges is particularly problematic 
with respect to supervisors. If an employee is incorrectly classified 
as a supervisor and not allowed to vote in the election, he is 
disenfranchised. If a supervisor is improperly included and campaigns 
during the election for either side, the election is tainted and may be 
set aside.\9\ Case law demonstrates that intimidation and coercion by 
supervisors have tainted elections in the past.\10\ These issues should 
be resolved before the election, out of fairness to everyone.
II. The notice requirement advising them of their rights under the act 
        is unnecessary
    On August 30, 2011, the Board, without any justification or 
reasoned rational, decided to deviate from a longstanding practice and 
to require employers to post a notice to employees. The posting is not 
required by the Act and does not serve the purposes of the Act. The 
Board has existed for seventy-five (75) years but only now has found it 
necessary to require employers to post a notice advising them of their 
rights under the Act. Employees, whether through television, newspapers 
or other media sources, know about their rights to unionize. 
Information about the right to join a union or refrain from joining a 
union is freely available on the Board website. Requiring employers to 
post this notice presumes that employees are ignorant about unions and 
the Board, which, clearly, they are not.
    The content of the notice, which employees are mandated to post 
effective November 14, 2011, is slanted in favor of unions. It 
emphasizes the right to join unions while relegating the equal right to 
not join a union as an aside. It suggests that employees need not 
remain members of a union but gives no hint about how to pursue that 
complicated option.
    The first sentence informs employees of their right ``to organize 
and bargain collectively with their employers and to engage in other 
protected concerted activity.'' It ignores employees' equal right to 
communicate directly with their employer. The poster assumes that the 
right to join a union trumps the right not to join a union. It says 
nothing about employees' rights after a union is voted in.\11\ Under 
the new rule, failing to post the notice qualifies as an independent 
Unfair Labor Practice. It would also toll the statute of limitations 
for ULPs filed against employers who fail to post the notice. This 
suggestion by the Board is in complete derogation of an express mandate 
by Congress that all Unfair Labor Practices must be filed within 180 
days after the incident occurred.\12\ The punitive nature of the rule 
demonstrates that its goal is not to notify employees but to further 
union efforts to gain traction at the expense of employee choice.
    The poster also oversimplifies the Unfair Labor Practice (ULP) 
process. It discusses what the Board can do with the charge against an 
employer, but makes virtually no reference to charges filed against 
unions. It fails to tell them that, without a union, they can instead 
speak with their employer directly to get issues resolved. The poster 
does not discuss that the regional director may dismiss the charge, 
that the Board can find no merit to the charge and that it can take two 
or three years or more before a court of appeals ultimately dismisses 
the charge. The poster makes no mention of monthly union dues or of the 
reality of strikes or of prolonged collective bargaining.
    In short, the poster creates the impression that the Board favors 
unions and is not neutral. This is not the message the Board should be 
sending to American workers, who often need protection from unions as 
well as employers.
III. The Board erroneously overruled Dana and has violated employees' 
        right to vote for or against collective bargaining
    The Board returned to a rule barring elections for a ``reasonable 
time'' after an employer voluntarily recognizes a union in Lamons 
Gasket Co., 357 NLRB No. 72. The decision overrules Dana Corp., 351 
NLRB 434 (2007) and creates a bad labor policy and does not effectuate 
the purpose of the Act. To put the Lamons decision in context, in Dana 
the board held that employees have the right to file a decertification 
petition after a voluntary recognition and then vote on union 
representation in a secret ballot election. Dana required the posting 
of an official Board notice informing employees of their employer's 
voluntary card-based recognition of a union bargaining representative 
and the employees' right within forty-five (45) days to test the 
union's claim of majority support through a Board-conducted secret-
ballot election. If no petition is filed within that period, electoral 
challenges to the union's representative status would thereafter be 
barred for a reasonable period of time. This was a good policy because 
over the years, there have been many cases in which employees have been 
misled or coerced into signing authorization cards.\13\
    Dana informed employees who were unaware of or who disagreed with 
voluntary recognition of their right to petition for a secret election. 
The secret ballot elections are the best way to resolve all questions 
concerning representation.\14\
    In addition to insuring that employees had a right to vote on the 
union, Dana provided a safeguard against severe consequences of 
recognizing a union without majority support. The consequences of 
recognizing a minority union were described by the Board in McLaren 
Health Care:

an employer who recognizes and bargains with a minority union, as the 
exclusive bargaining representative of a unit of its employees pursuant 
to Section 9(a), violates Section 8(a)(2) and (1), and the employer's 
knowledge or ignorance of the union's minority status is irrelevant to 
the question whether the recognition constitutes an unfair labor 
practice. Likewise, a union which accepts recognition as the exclusive 
bargaining representative of a unit of employees pursuant to Section 
9(a), and bargains on behalf of those employees, without majority 
status, violates Section 8(b)(1)(A).

333 N.R.R.B. 256, 257 (NLRB. 2001).
    A collective bargaining agreement is not always entered into 
immediately after voluntary recognition. In International Ladies' 
Garment Workers' v. NLRB, 366 U.S. 731 (1961), the employer and union 
entered into an agreement under which the employee voluntarily 
recognized the union based on the union's misrepresentation that it 
secured authorization cards from a majority of employees. Six weeks 
later, the two sides entered into a collective bargaining agreement. 
The Supreme Court found that a collective bargaining agreement executed 
by the parties failed because it was obtained based on an erroneous 
claim. The Court held that the employer activity violated the Act by 
interfering with and restraining employees' exercise of rights under 
Section 7. The Court found that the fact that petitioner and employees 
asserted good-faith beliefs in petitioner's majority status was not a 
defense because scienter was not an element of the statute.\15\ The 
decertification process provided for in Dana created a safeguard to 
ensure that a union has achieved voluntary majority support.
    Nothing in Dana undermines the voluntary recognition process 
itself. However, it also serves as a safeguard against union 
manipulation of authorization cards and other misrepresentations that 
create a false picture of union support.\16\
    The Board waxes on about the importance of remaining neutral. I can 
tell you, as a former regional director, the Board's role is not one of 
neutrality.\17\ The Board's role, and I quote directly from its web 
site, is to ``safeguard employees' rights.'' Giving the employees the 
opportunity to decertify a minority union is in keeping with 
safeguarding rights. In overruling Dana Corp. the Board has betrayed 
its mission, and it has taken a position that is incompatible with the 
statutory purpose of the Act. As the Supreme Court reasoned in NLRB v. 
Magnavox Co. of Tennessee, 415 U.S. 322, 326 (1974), ``it is the 
Board's function to strike a balance among `conflicting legitimate 
interests' which will ``effectuate national labor policy,'' including 
those who support versus those who oppose the union.'' Another August 
2011 Board decision, UGL-UNICCO Serv. Co., 2011 NLRB LEXIS 488 (NLRB 
Aug. 26, 2011) also takes rights away from workers by barring 
decertification for up to one year following a sale or merger.
    Dana allowed employees to exercise their right to decertify 17 
unions voluntarily recognized by employers. The Board justified 
overturning Dana with the argument that this number is statistically 
insignificant. The Board's argument ignores the purpose of Dana and its 
own mission: to allow workers to exercise their rights.
IV. Specialty Healthcare will balkanize businesses with small 
        bargaining units
    In Specialty Healthcare & Rehab. Ctr. of Mobile & USW, 2011 NLRB 
LEXIS 489 (NLRB Aug. 26, 2011), the Board decided that a regional 
director must find that any unit that the union petitions for is 
appropriate, if the employees performed the same task or earned the 
same or similar pay. This will wreak havoc on employers. Specialty 
Healthcare will give unions the ability to organize multiple small 
collective bargaining units within one facility, Balkanizing the 
business and making it impossible for an employer to make hiring, 
promotion and transfer decisions. Costs will increase as the employer 
is forced to deal with multiple unions. This ability to carve out small 
units will adversely affect or perhaps completely eliminate 
opportunities for employees to advance in the workplace or learn new 
skills. Moreover, I can tell you from my experience as a regional 
director, a regional director looking at a representation petition 
would be compelled to hold a representation election for any unit 
supported by the union.
    In early cases the Board considered whether employees had a 
``community of interest'' when defining units. The Board looked at job 
titles, salary, compensation, benefits and skills and considered how 
the employees with different job titles related to the integrated 
nature of the employer's work enterprise. We concede that the statute 
has never required the Board to select the most appropriate unit--the 
unit need only be an appropriate unit with a clear community of 
interest among the employees. With this approach, the Board avoided 
separating small groups of employees carved out only for the purpose of 
union organizing from other groups that performed related tasks for 
similar pay. The new test under Specialty Healthcare is a poor policy 
that serves no useful purpose other than to make it easy for unions to 
organize.
    I believe that Specialty Healthcare, Lemons Gasket Co. and the 
proposed rules are the Board's response to the failure of the Employee 
Free Choice Act. That proposal would have bypassed secret ballot 
elections and required employers to recognize a union on the basis of 
cards signed by employees publically. Congress appropriately refused to 
deny American workers their right to a secret ballot, but the Board's 
proposals and decision seems to be an attempt to salvage the heart of 
EFCA.
    In conclusion, I want to thank you for the opportunity to appear 
before the Committee. I would be happy to answer any questions you 
might have.
                                endnotes
    \1\ I would like to thank my law partner, Halima Horton, and 
associate, Nancy Fonti, for all of their hard work in preparing this 
presentation. Moreover, I appreciate the help and comments of my law 
partners in the labor section of McGuireWoods LLP.
    \2\ In 2010, the percent of wage and salary workers who were 
members of a union fell to 11.9% from 12.3% percent a year earlier, 
according to the Bureau of Labor Statistics. http://www.bls.gov/
news.release/union2.nr0.htm
    \3\ The Proposed Rule acknowledges that the median timeframe 
between a petition and an election is thirty-seven (37) to thirty-eight 
(38) days. 76 FR 36812, pg. 5.
    \4\ Steele v. Louisville & NR Co., 323 U.S. 192, 200 (1944) (``The 
labor organization chosen to be the representative of the craft or 
class of employees is thus chosen to represent all of its members, 
regardless of their union affiliations or want of them.'').
    \5\ See ITT Industries v. NLRB, 413 F.3d 64 (D.C. Cir. 2005) 
(holding that the Act gave employees working at one facility the 
Section 7 right to visit another facility owned by their employer and 
appeal to their co-workers regarding the union), enforcing 341 NLRB 
937, 941 (2004)(finding that security concerns did not justify the 
restriction of access to non-site employees, reasoning ``* * * we are 
equally mindful of our responsibility to protect the statutory rights 
of employees at such times, and at all times''); NLRB v. Magnavox Co., 
415 U.S. 322 (1974)(employees have Section 7 rights to oppose a union).
    \6\ NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 477 
(1941)(holding that neither the Act nor the Board can enjoin an 
employer from expressing its views regarding the union); NLRB v. Gissel 
Packing Co., 395 U.S. 575, 617 (1969)(``an employer's free speech right 
to communicate his views to his employees is firmly established and 
cannot be infringed by a union or the Board''); Gallup, Inc., 349 NLRB 
1213, 1240-41 (2007)(chief executive may warn employees unionization 
would put the company's future at risk without violating the Act); 
Action Mining/Sanner Energies, 318 NLRB 652, 657 (1995)(employer's 
comment that it did not know how customers would react once they 
learned of unionization was not unlawful); Airstream, 192 NLRB 868 
(1971) (``Section 8(c) protects an employer's right to criticize a 
labor organization during a pre-election campaign''); NLRB v. Lampi, 
240 F.3d 931, 936 (11th Cir. 2001)(executive's comment to a television 
reporter that the company ``did not particularly like unions'' and was 
``against them'' was not evidence of a unfair labor practice).
    \7\ The following cases demonstrate the type of misleading 
statements made during campaigns. See Hollywood Ceramics Co., 140 NLRB 
221 (NLRB 1962); Formco, Inc., 233 NLRB 61 (1977)(union distributed a 
letter that falsely reported the employer had been guilty of unfair 
labor practices); Purolator Prods., 270 NLRB 694 (1984)(union handbill 
incorrectly stated status of union's pending charge against employer by 
implying the employer had been found guilty of an unfair labor practice 
act).
    \8\ The proposed rule would defer eligibility questions ``affecting 
no more than 20% of eligible voters.'' See 76 FR 36812, pgs. 20-21.
    \9\ NLRB v. Regional Home Care Servs., 237 F.3d 62, 68 (1st Cir. 
2001)(``A pro-union supervisor presents two possible scenarios which 
could interfere with a fair and free election. The first is confusion; 
the second is coercion. There may be confusion felt by employees about 
the message from management if one of management's own, a supervisor, 
urges the union upon employees. Or there may be a second effect, that a 
supervisor may explicitly or implicitly coerce employees into voting 
for the union.''); Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st 
Cir. 1981) (``The Board has found pro-union activity by supervisors 
objectionable on two possible grounds: first, it may lead employees to 
the false conclusion that their employer favors the union; and second, 
it may cause employees to support the union out of fear of retaliation 
by the particular supervisors rather than out of free choice.'').
    \10\ The board and courts found that supervisors interfered with 
elections in the following cases: Millard Refrigerated Servs., 345 NLRB 
1143, 1147 (2005)(setting aside an election when supervisors with broad 
authority over unit employees solicited authorization cards and warned 
employees ``if the union does not get in, everyone will probably be 
fired''); Harborside Healthcare, Inc., 343 NLRB 906 (2004) (setting 
aside an election because a supervisor threatened employees with job 
loss if the union lost the election); SNE Enters., 344 N.LR.B. 673, 674 
(2005)(finding that supervisors solicited authorization cards and 
remanding to regional director to determine if solicitation constituted 
objectionable conduct); National Gypsum Co., 215 NLRB 74 (1974)(finding 
that supervisors solicited authorization cards and controlled the 
distribution of cards and tainted the union's showing of interest).
    \11\ See Communications Workers of America v. Beck, 487 U.S. 735 
(1988)(union cannot require workers to pay fees for its political 
activities or fees beyond the costs of negotiating a collective 
bargaining agreement).
    \12\ In its attempt to justify tolling of the statute of 
limitations, the Board incorrectly relies on a decision by the Third 
Circuit, Bonham v. Dresser Industries, 569 F.2d 187, 193 (3rd Cir. 
1977) that interprets the Americans With Disabilities Act. In that 
case, according to the Board, the Third Circuit held that the ADEA 
posting requirements was undoubtedly created by Congress for the 
benefit of employees. There is a remarkable difference between Congress 
creating a posting requirement and the Board creating a posting 
requirement seventy-five (75) years after it began administering the 
Act. The Board decisions regarding the tolling of the statute makes no 
mention of Supreme Court jurisprudence articulated in National Railroad 
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which held that the 
statute of limitation commences when a discrete act of discrimination 
occurs.
    \13\ Montgomery Ward & Co., 288 NLRB 126, 169,180 (1988)(some 
authorization cards invalidated because union solicitor told employees 
that authorization cards were only for the purpose of getting 
information about the union or for obtaining the election); NLRB v. 
Riviera Manor Nursing Home, Inc., 1972 U.S. App. LEXIS 8434, at * 3 
(7th Cir. 1972)(finding that the union could not show that some 
authorization cards were signed by individuals employed at the time of 
the signing); Brookland, Inc., 221 NLRB 35,35-36 (NLRB 
1975)(authorization cards invalid when the union solicitor told 
employees ``the only thing the card was for was so that the Union could 
keep in touch with us through literature of what was going on in the 
union itself''); Serv-U-Stores Inc., 234 NLRB 1143, 1145-1147 
(1978)(finding an authorization card invalid when union president told 
the employee it would only be used solely for the purposes of obtaining 
an election); Calplant Constructors, 279 NLRB 854 (NLRB 1986)(election 
set aside when union representative misled employees telling them ``if 
you sign now you won't have to pay the initiation fees'').
    \14\ McLaren Health Care Corp., 333 NLRB 256, 257 (2001)(``secret 
elections are generally the most satisfactory--indeed the preferred--
method of ascertaining whether a union has majority support''), citing 
NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969); Levitz Furniture 
Co. of the Pacific, 333 NLRB 717, 723 (2001) (``Board-conducted 
elections are the preferred way to resolve questions regarding 
employees' support for unions''); Underground Service Alert, 315 NLRB 
958, 960 (1994)(reasoning that a decertification election was superior 
to an employer's withdrawing recognition since elections ``provide, 
through the objection and challenge procedures, an orderly and fair 
method for presentation and reasoned resolution of questions concerning 
the fairness of the process and whether particular individuals are 
eligible to have their preferences on union representation counted'').
    \15\ See also International Ass'n of Machinists v. NLRB, 362 U.S. 
411, 425-226(U.S. 1960)(Bryan Manufacturing's agreement with a minority 
union required to remain in force since UPLs based on violation of the 
Act were barred by a six-month statute of limitations); See also NLRB 
v. Trosch, 321 F.2d 692 (4th Cir. 1963)(upholding a Board decision 
finding that employer violated the Act by entering into a CBA with a 
union that did not have majority support, reasoning ``Maryland News 
recognized a minority union and negotiated a labor agreement with it. 
The facts that the employer's actions were taken in good faith and that 
a majority of the employees later signed the final version of the 
agreement do not help Maryland News''); Human Dev. Ass'n v. NLRB, 937 
F.2d 657 (D.C. Cir. 1991)(employer violated act by recognizing a union 
with minority support); Regency Grande Nursing & Rehab. Ctr., 2009 NLRB 
LEXIS 167 (NLRB, May 28, 2009) (same); Raymond Interior Sys., 2008 NLRB 
LEXIS 366 (NLRB Nov. 10, 2008).
    \16\ Dayton Hudson Dep't Store Co., Div. of Dayton Hudson Corp. v. 
NLRB, 987 F.2d 359 (6th Cir. 1993); NLRB v. Gormac Custom Mfg., Inc., 
190 F.3d 742 (6th Cir. 1999).
    \17\ See SNE Enters., 344 NLRB 673, 674 (NLRB 2005)(``We recognize 
that setting aside a union victory in an election does represent a 
setback for the union. However, at bottom, it is employee free choice 
that is at issue, not the victory or loss of any particular party.'').
                                 ______
                                 
    Chairman Kline. Thank you very much, Mr. Mack.
    Ms. Ivey, you are recognized.

            STATEMENT OF BARBARA A. IVEY, EMPLOYEE,
                       KAISER PERMANENTE

    Ms. Ivey. Thank you. Mr. Chairman--excuse me. Mr. Chairman, 
ladies and gentlemen of the committee, thank you for allowing 
me to speak before you regarding this very important issue. My 
name is Barbara Ivey, and I have been an employee of Kaiser 
Permanente for over 21 years, 19 of which I have been in 
membership services.
    Let me start off by saying that the bottom line really is 
that everything involved in this card check scheme was handled 
in a very sneaky manner. All employees should have had the 
opportunity to see all the vital information that was going on 
to impact their jobs, incomes and the opportunities to vote in 
a secret ballot.
    I am not in favor of the union, but if the majority of my 
coworkers truly wanted it, I would have accepted that decision. 
However, I know that through the card check scheme used at 
Kaiser Permanente everyone in our department did not have a 
vote.
    On July 20th this year Kaiser Permanente sent out an email 
stating that there would be 2 days in the Portland Medical 
Office attending would be--a meeting. Attending would be Scott 
Allan, Director of Labor and Relations; and--of the Northwest 
Kaiser Permanent; and Sarah Thompson, an internal organizer 
from the SEIU union.
    For many of us, this email was the first indication of any 
effort to unionize our workplace. We thought this meeting was 
simply the first step in what we believed would be a lengthy 
process. We thought something as important as a union 
representation election would never be rushed.
    During the July 22 meeting at the Portland office, the 
majority of my coworkers and I were still at work. We had to 
call in from the outside clinics; example, Salem, Vancouver, 
and Long View, during our breaks and or after work. We were not 
informed that SEIU was going to visit Kaiser Permanente 
employees at work and ask them to sign cards to indicate that 
they wanted SEIU to have monopoly bargaining power.
    During the telephone conference, I asked a few questions 
regarding benefits and the SEIU's union work rules. I also 
asked if there was any if we did not fill a card-count was 
known should be a vote. I was advised at that time that there 
was the Dana ruling that protected my rights to request a 
secret ballot certification election.
    To my surprise, just 13 days later I received an email from 
Kaiser Permanente director, Belinda Green, announcing the 
outcome of the SEIU vote count held the day before. According 
to her email, 49 signed cards were needed to give the SEIU 
union monopoly, had received 50 signed cards.
    In those 13 days, I never received a card or request to 
sign a recognition card for SEIU. It appeared to me that the 
union had stacked the deck before the July 22nd meeting was 
even held.
    When we were told that in only 12 days SEIU had become our 
monopoly bargaining agent, many of my coworkers and I were 
stunned and frustrated that we did not have a say in this card 
count and never had a real vote. I offered to contact the NLRB 
to inquire about signing a Dana petition to force a secret 
ballot election.
    We never found out how the Bargaining Committee was 
selected. Somehow these folks' names just appeared on the 
ballot that was forwarded to us. The names were preselected. 
Why was not everyone in the office offered an opportunity to be 
on the ballot? The whole process seemed to take place in such a 
small window of time, although we heard that there were 
organizing meetings going on in the evenings prior to SEIU 
coming into the office.
    Let me say again, we were stunned and frustrated that we 
had not been given a vote. And that is why, with the help of 
The National Right to Work Legal Defense Foundation attorney 
Glenn Taubman, we began the process to petition for a secret 
ballot election.
    With no expectations, a coworker and I approached fellow 
employees about signing a petition for a secret ballot 
election. We were not sure if we would be able to obtain the 
necessary signatures of 30% of our coworkers, but it was the 
only way to ensure that our voices were heard fairly.
    Amazingly, we quickly obtained the signatures of 45% of our 
fellow employees and filed the Decertification Petition with 
the NLRB on August 8. It was exciting to see that so many of my 
co-workers wanted the opportunity to have time to vote.
    On August 26, we received confirmation from the NLRB that 
all parties had agreed to a mail-in secret ballot vote that 
would occur on September 20th. The ballots were to be counted 
on October 4th. Everything was set for a vote in which everyone 
could participate, one where everyone could vote their 
conscience knowing it was confidential.
    However, on August 31st, I learned that the Dana rights had 
been overturned by the NLRB in a case called Lamons Gasket. I 
was shocked and quite upset. I thought how could this be? All 
we were asking for was a fair vote and a private vote, giving 
everyone a voice.
    If the union is so confident that a simple majority of 
workers wants to be represented by them, why would it insist on 
a card count instead of a secret-ballot election?
    I have voted in every Presidential Election, and most of 
the other elections, since I was 18. Each time, I either had to 
be present at the polling station or mail my ballot for my vote 
to count. And, every time I was reassured by the knowledge that 
my vote was confidential.
    In the United States we have been taught that if we vote, 
our voices will be heard, our identities will be protected, and 
most importantly that we can make a difference. Why should the 
SEIU or any union be allowed to represent workers in any other 
way? The card check process undermines the privacy and voices 
of every worker that they seek to represent.
    In the email I sent coworkers announcing the 
decertification petition had been approved, I stated that we 
were going to have the time and opportunity to review the Union 
contract and then vote whether we wanted to be represented by 
the SEIU Union or not.
    Chairman Kline. Excuse me, Ms. Ivey. Could you wrap up, 
please?
    Ms. Ivey. Sure.
    Chairman Kline. Thank you.
    Ms. Ivey. And on my statement I gave some examples of how 
my coworkers felt about the union. But in the end, I just want 
to thank you--allow me the opportunity to share my personal 
experience. And I look forward to answering any of your 
questions.
    [The statement of Ms. Ivey follows:]

             Prepared Statement of Barbara Ivey, Employee,
                      Kaiser Permanente Northwest

    Mr. Chairman, ladies and gentlemen of the Committee, thank you for 
allowing me to speak before you today regarding this important issue.
    My name is Barbara Ivey and I've been an employee of Kaiser 
Permanente for over 21 years, 19 of which I've been in the Membership 
Services Department.
    Let me start off by saying that the bottom line, really, is that 
everything involved in this ``card-check'' scheme was handled in a 
sneaky manner. All employees should have had the opportunity to see all 
the vital information that was going to impact their jobs and incomes, 
and the opportunity to vote by secret-ballot.
    I am not in favor of the union, but, if the majority of my 
coworkers truly wanted it, I would have accepted that decision. 
However, I know that through the card-check scheme used at Kaiser 
Permanente, everyone in our department did not have a vote.
    I think the following facts back up my concerns:
    On July 20, 2011, Kaiser Permanente sent an email stating that 
there would be a meeting in two days, July 22nd, from 4-6 pm in the 
Portland office of Kaiser Permanente. Attending would be Scott Allan, 
Director of Labor and Employee Relations for Kaiser Permanente 
Northwest, and Sarah Thompson, an internal organizer from the Service 
Employees International Union (SEIU).
    For many of us, this email was the first indication of any effort 
to unionize our workplace. We thought this meeting was simply the first 
step in what we believed would be a lengthy process. We thought 
something as important as a union representation election would never 
be rushed.
    During the July 22 meeting at the Portland office, the majority of 
my coworkers and I were still at work. We had to ``call-in'' from the 
outside clinics, i.e. Salem, Vancouver, and Long View, during our 
breaks and or after work.
    We were not informed that SEIU was going to visit Kaiser Permanente 
employees at work and ask them to sign cards to indicate that they 
wanted SEIU to have monopoly bargaining power.
    During the telephone conference, I asked a few questions regarding 
benefits and the SEIU's union work rules. I also asked if there was any 
option for a vote, if we did not feel that the ``card count,'' also 
known as the card-check, method was a valid way to ``vote'' to join a 
union. I was advised during that call that there was the ``DANA'' 
ruling that protected my rights to request a secret ballot 
certification election.
    To my surprise, just thirteen days later I received an email from 
Kaiser Permanente director, Belinda Green, announcing the outcome of 
the SEIU ``vote count'' held the day before. According to her email, 49 
signed cards were needed to give the SEIU union monopoly recognition 
and SEIU had received 50 signed cards.
    In those thirteen days, I never received a card or request to sign 
a recognition card for SEIU. It appeared to me that the union had 
stacked the deck before the July 22nd meeting was even held.
    When we were told that in only twelve days SEIU had become our 
monopoly bargaining agent, many of my coworkers and I were stunned and 
frustrated that we did not have a say in this card count and never had 
any ``vote''. I offered to contact the NLRB to inquire about signing a 
``DANA'' petition to force a secret ballot election.
    We never found out how the Bargaining Committee was selected. 
Somehow these folks' names just appeared on the ballot that was 
forwarded to us. The names were preselected. Why wasn't everyone in the 
office offered an opportunity to be on the ballot?
    The whole process seemed to take place in such a small window of 
time, although we heard that there were organizing meetings going on in 
the evenings prior to SEIU coming into the office. Let me say again, we 
were stunned and frustrated that we had not been given a ``vote,'' and 
that is why, with the help of The National Right To Work Legal Defense 
Foundation attorney Glenn Taubman, we began the process to petition for 
a secret ballot election.
    With no expectations, a coworker and I approached fellow employees 
about signing a petition for a secret ballot election. We weren't sure 
if we would be able to obtain the necessary signatures of 30% of our 
coworkers, but it was the only way to ensure that our voices were heard 
fairly.
    Amazingly, we quickly obtained the signatures of 45% of our fellow 
employees and filed the Decertification Petition with the NLRB on 
August 8. It was exciting to see that so many of my co-workers wanted 
the opportunity to have a true vote!
    On August 26, we received confirmation from the NLRB that all 
parties had agreed to a mail-in secret-ballot vote that would occur on 
September 20th. The ballots were to be counted on October 4th.
    Everything was set for a vote in which everyone could participate, 
one where everyone could vote their conscience knowing it was 
confidential.
    On August 31st, I learned that the ``DANA'' rights had been 
overturned by the NLRB in a case called ``Lamons Gasket.'' I was 
shocked and quite upset. I thought, ``How could this be?'' All we were 
asking for was a fair vote and a private vote, giving everyone a voice.
    If any union is so confident that a simple majority of workers 
wants to be represented by them, why would it insist on a ``card 
count,'' instead of a secret-ballot election?
    I have voted in every Presidential Election, and most of the other 
elections, since I was 18. Each time, I either had to be present at the 
polling station or mail in my ballot for my vote to count. And, every 
time I was reassured by the knowledge that my vote was confidential.
    In the United States we have been taught that if we vote, our 
voices will be heard, our identities will be protected, and most 
importantly that we can make a difference.
    Why should the SEIU or any union be allowed to represent workers in 
any other way--the ``card-check'' process undermines the privacy and 
voices of the very workers they seek to represent?
    In the email I sent coworkers announcing the decertification 
petition had been approved, I stated that we were going to have the 
time and opportunity to review the Union contract and then vote whether 
we wanted to be represented by the SEIU Union or not. This was a chance 
to have EVERYONE'S VOICE HEARD, without any doubt that this was an 
election! Everyone would know what they were voting for!
    In fact, following my announcement, Sara Thompson, an SEIU 
representative, sent two emails stating ``I encourage everyone to vote 
and for every voter to be well-informed before making this decision''. 
She went on, ``just like in a presidential election, abstaining is no 
vote at all, either way.'' These statements clearly show that SEIU 
knows what a vote is supposed to be. So, I ask you this--how could they 
ever consider ``card-check'' to be a fair vote?
    It is not right to deny workers the opportunity to be fully 
informed, and the protections afforded by a secret-ballot election on 
such important decisions. In revoking the ``DANA'' decision, the NLRB 
has taken away one of the last guarantees workers have of a fair and 
honest vote in workplace elections.
    For me and my fellow employees however, snatching away those rights 
just as an election has been agreed to and a date had been set was 
cruel and unethical.
    Let me close with some of my colleagues' complaints and concerns 
regarding the meetings and Card-Check process.
    A couple of employees were approached specifically with cards and 
told that they should sign the cards because the Union will provide 
better pay and benefits. One coworker said that she felt pressured, so 
she signed the card because she was led to believe that she was just 
requesting more information by signing.
    At least two other staff members said they were on vacation when 
the meetings and card-check count took place, and no one informed them 
of what was occurring.
    One person stated that she had no idea what was going on and was 
surprised to read the email that advised that we were now in a Union.
    Many did not receive a card and the ones who did either attended a 
meeting or were singled out, (or were specifically chosen by SEIU).
    A person who attended an ``informational'' meeting said the SEIU 
representative couldn't really answer any questions and had only a copy 
of the 2009 contract which she kept referring to even though there was 
already a 2010-2013 contract.
    Many of my colleagues were given the impression that signing was 
simply a request for more information. Several coworkers reported rude 
treatment when they asked to have their cards retracted. One was told 
that ``it didn't matter because they couldn't find her card anyway.''
    I thank you for your time and the opportunity to share my 
experience, and I look forward to answering any of your questions.



                                 ______
                                 
    Chairman Kline. Thank you.
    Mr. Martin, you are recognized.

            STATEMENT OF ARTHUR J. MARTIN, PARTNER,
                    SCHUCHAT, COOK & WERNER

    Mr. Martin. Chairman Kline, Ranking Member Miller, thank 
you very much for the invitation to----
    Chairman Kline. Microphone.
    Mr. Martin. Thank you very much for the invitation to 
participate today. Let me say that I think the evidence is that 
in the year-and-a-half that the Obama board has been operating 
that there is no evidence that it is union favoritism. Every 
time there is a change, there is a sway back and a sway forth. 
And that is all reviewable by the federal courts, and I do not 
think anybody will contend that the federal courts are in the 
pocket of big labor.
    Nevertheless, to address some of the matters that have been 
raised today, Lamons Gasket is simply a return, after 4 years 
of Bush precedent under Dana, it is a return to 40 years of 
precedent operated by Republicans and Democrats. There has 
never been any prohibition against voluntary recognition where 
employees freely and unencumbered authorize a union to 
represent them and an employer with evidence of majority 
support for the employer to go ahead and to bargain with the 
union.
    Ms. Ivey will have her chance to file her decertification 
petition. If the union cannot reach an agreement, she can file 
a decertification petition. Ms. Ivey, if it turns out that 
there is a collective bargaining agreement reached, when that 
bargaining agreement expires, she will be able to file a 
decertification petition. It just preserves, returns to 40 
years of precedent where voluntary recognition is considered a 
free and open way to proceed.
    The UNICO case that was mentioned is simply a return to 
again precedent successor doctrine. What actually happens when 
an employer is purchased in the successor case, that is a case 
where companies go out and buy another company and there is a 
transfer or forced takeover.
    That is when the employees are most vulnerable. That is 
when they should have a right--they should have every right. It 
should not be vulnerable to have their protection--their 
representative working on every ask when the successor employer 
takes over.
    We are all familiar with cases where the successor employer 
takes over and finances the purchase with the employee 
benefits, lose their pension plan, rearranges their health care 
and pay for it. And that is when we need protection.
    Specialty health care is a return to 70 years of community 
of interest. With all due respect to the former NLRB officer, 
in fact the way you determine who is an inappropriate 
bargaining unit is community of interest. And the specialty 
health care case was simply a case where the nurses freely and 
openly chose to be represented by a union, and did not 
necessarily care to be--to include the janitors and the other 
help. That is--it is incumbent upon the board to simply to 
determine what is an appropriate unit in that community of 
interest standard has not changed.
    Frankly, the complaining about the notice, I went to our 
lunchroom and got the notice. It was hard to find because it is 
up there with the unemployment notice, with the ADA notice, 
with the family notice and every other notice. And it just 
simply says what rights are.
    And frankly, what it also includes, interestingly enough, 
it directs employees to the duties of fair representation that 
it is incumbent upon the union to represent the employees. That 
is not in the statute, but that is the law. And so it advises 
people, and it also advises people that they do not have to 
participate in the union. So, it makes it clear. It is no 
different than advising people that they cannot be 
discriminated against.
    The proposed rulemaking about an election simply moves 
along the election process. Every employer knows that every 
employee serves at their will. And those employers can compel 
them to attend a meeting under penalty of discipline to hear 
out their position on the union.
    There is no problem with employer communication. If we 
really wanted clear communication and a full disclosure of what 
has been going on you would have to invite the union to those 
captive audience meetings. But this board is not going to do 
that, and I am sure the committee is not going to do that.
    But, if you really wanted to air it out, that is the way 
you would do it. But ever employer has the right to continue 
their captive audience meetings where employees are compelled 
to attend and hear their view.
    One of the things that the proposed rule does is limit the 
opportunity for multiple litigation by employers and their 
attorneys. Not suggesting anybody here would indulge in this, 
but it is a practical matter. I have actually had to litigate 
the existence of my client.
    I have had a case run out where the union has produced the 
cards, the union has made a position to represent the people, 
we are trying to get an election. Well, that is not even a 
union. So, okay, we got to litigate. That gets appealed. That 
delays.
    And then we go to the election, and then there is a whole 
series. There is an opportunity for litigation after that. As a 
practical matter--I mean the board, like every other agency has 
got to do more with less. And to eliminate the opportunity for 
multiple litigation is something we should avoid, and the 
board's proposed rules simply streamline that.
    And as a practical matter, the unions that I represent are 
engaged every day in job preservation, working with employers, 
especially since the 2008 collapse, working with employers to 
preserve our jobs, shoulder-to-shoulder, cheek-to-jowl with 
employers. Thanks.
    [The statement of Mr. Martin follows:]
    
    
    
                                ------                                

    Chairman Kline. Thank you.
    Mr. King, you are recognized.

         STATEMENT OF G. ROGER KING, PARTNER, JONES DAY

    Mr. King. Thank you, Mr. Chairman, Ranking Member Miller. 
Thank you for having me here again today.
    First, we are all frustrated with the National Labor 
Relations Board. Democrat, Republican, Independent, labor 
management alike. This board has vacillated back and forth over 
the years, continues to do so. No question that we need to look 
at the NLRB--direction.
    Mr. Miller, I noted your remark that this is a small 
agency. Yes, it is, compared to the reset of the federal 
government. But the Boeing Initiative by this acting general 
council has sent shockwaves through this business community and 
this country and internationally.
    Employers in this country are concerned about whether they 
can move a plant without getting to years of litigation and 
being accused of being a lawbreaker. Ford employers are now 
questioning whether they are even going to put capital in this 
country.
    This agency is having a very dramatic, albeit negative 
impact upon the economy of this country. And I commend this 
committee for having this hearing. This agency does need to be 
reviewed.
    Yes, there are a lot of very fine civil servants that have 
worked for years with this agency. They do a good job in 
processing election petitions. But it cannot be argued that 
this particular board is one of the most activist boards in the 
history of the National Labor Relations Act.
    And the speed of which its trying to process this agenda is 
without precedent. There are no less than eight or nine major 
policy initiatives being pursued by this board. That has not 
occurred in the past, whether it be a Democrat or Republican 
board.
    One example is rulemaking. In the history of this agency 
there have only been two rulemaking initiatives in the entire 
history of the board, 75 years. This particular board in a 
matter of a few months is engaged in two rulemaking 
initiatives, and I will touch upon both in a moment.
    There is no way that anyone objectively could conclude that 
this board has not been extremely active. Indeed, from the 
perspective of the employer community and others, way too 
active in one direction.
    With respect to specifics, this board has created 
artificial issues, issues that are not even before--in the 
cases that come before the board for adjudication, and then 
using these artificially created issues to then issue major 
policy reversals.
    I do want to identify with the remarks of Mr. Mack. Curtis 
Mack was one of the most distinguished National Labor Relations 
Board civil servants to serve in the agency's history. I agree 
totally with his analysis of the case law mentioned.
    I cite in my testimony cases where the board has attempted 
to artificially create issues. The most glaring are the 
proposed new elections rules. The National Labor Relations 
Board, for all of its other problems at the regional level at 
the career civil service level processes petitions very 
efficiently, and has improved upon that record year in and year 
out.
    We have included in our testimony the win rate indeed that 
the unions have had under this processing of petitions. It is 
well over 60 percent. And the data, that is not refuted by 
anyone, of the efficiency of the processing of these petitions 
is excellent. There is no need--no documented record whatsoever 
for these new proposed election rules.
    Mr. Mack covered quite adequately the Dana case, the 
successorship case. I would only note that there have been more 
and more recognition agreements in this era than there have 
even 10 or 15 years ago. And a recognition agreement between an 
employer and a union is not necessarily bad. But it should in 
most cases permit an election. And that is really the problem 
with the overturning the Dana case.
    With respect to the posting of this notice, well it is hard 
to argue. I would concur with a notice being posted. But the 
issue is much broader than that. This notice is not fair and 
balanced. It does not really articulate all the rights that 
employees have under the Act.
    There are questions, legal questions whether the board even 
has the statutory authority to do this. And those are being 
challenged by the United States Chamber of Commerce and other 
entities. So, we will see how that litigation proceeds.
    But the board not only has this new poster, it is saying if 
you do not put the poster up, you are guilty of an independent 
unfair labor practice charge. And the statue of limitations on 
any other pending unfair labor practice could be pulled, could 
be extended.
    And furthermore, this what I think is really something we 
need to think about, if the employer does not put the poster 
up, it is going to be somehow deemed to be against unions 
generally, union animus. So, that is not right. So, if we are 
going to do a posting, let us do it right, indeed if the board 
even has that authority.
    Finally, on specialty health care, that decision probably 
is the most impressive written decision I have seen in a long 
time, but it is simply wrong. It overrules years of board 
precedent. We would disagree on that. At least 30 years of 
precedent. It will result in highly fragmented micro bargaining 
units throughout the country.
    Finally, on specialty health care, we could see up to seven 
or eight units on that theory. This particular decision needs 
legislative attention. It is wrong. It will result in a very 
negative impact on the economy of this country, particularly on 
the small employer up to the large employer.
    Mr. Chairman, that concludes my prepared remarks. I will be 
happy to answer questions.
    [The statement of Mr. King follows:]

        Prepared Statement of G. Roger King, Partner, Jones Day

    Good morning Committee Chairman Kline, Mr. Miller and Members of 
the U.S. House Committee on Education and the Workforce. It is an honor 
and pleasure to appear again before the Committee as a witness. My name 
is G. Roger King,\1\ and I am a partner in the Jones Day law firm. My 
testimony today should not be construed as legal advice as to any 
specific facts or circumstances. Further, my testimony is based on my 
own personal views and does not necessarily reflect those of Jones Day 
or its attorneys. I have been practicing labor and employment law for 
over 30 years and I work with employer clients located in various parts 
of the country with varying workforce numbers, with a mix of union and 
non-union work forces. I have been a member of various committees of 
The American Bar Association, The Society for Human Resource Management 
(SHRM) and The American Society of Healthcare Human Resources 
Association (ASHHRA) and I also participate in the work of other trade 
and professional associations that are active in labor and employment 
matters. A copy of my CV is attached to the written version my 
testimony as Attachment A.
---------------------------------------------------------------------------
    \1\ Mr. King can be reached at rking@JonesDay.com. He would like to 
acknowledge his Associate, Scott Medsker, also of the Jones Day Labor & 
Employment Practice Group, for his assistance in the preparation of 
this testimony.

    [Attachment A may be accessed at the following Internet 
address:]

                     http://www.jonesday.com/gking/

    Mr. Chairman, I request that the entirety of my written testimony, 
and the attachments thereto, be entered into the record of the hearing.
    Mr. Chairman, my testimony this morning addresses the following 
points regarding the recent initiatives undertaken by the National 
Labor Relations Board (``NLRB'', ``the Board'', or ``Agency'').
 The unprecedented activist and pro-labor record of the current 
        Board
    The unpredictability and ever-changing nature of Board case law has 
been a cause of frustration and a concern for employers, labor 
organizations and employees for many years. Further, the procedural and 
substantive problems associated with the Board frequently having to 
meet its statutory obligations with less than a full complement of 
members and the highly politicized process to fill Board vacancies has 
proven to be a detriment to the Agency, including the public perception 
of its ability to carry out its mission in an unbiased and even-handed 
fashion. Substantial policy changes in the direction of the Board, or 
as certain academic commentators have noted, ``policy oscillation'' by 
the Board have continued to increase in recent years resulting in 
allegations from both the labor and management community of the Board 
being ``highly politicized.'' Indeed, given the statutory framework 
with which the Board was created, and the authority of a sitting 
president to nominate a majority of the members of the Board from his 
party, or representative of his labor and management philosophy, it is 
not surprising that the Board faces substantial obstacles in carrying 
out its statutory duties.
    The direction of the current Board, however, is troubling. Indeed 
many from the employer community believe that the Board will not judge 
the merits of any case before it on an unbiased basis. Irrespective of 
one's feelings and position on labor-management issues, objectively, 
the current Board, through adjudication, rulemaking and proposed 
rulemaking, has implemented one of the more active agendas pursued by 
any Board in the history of the Agency. Further, it has engaged in 
these initiatives in a timeframe that is perhaps also unmatched in any 
other period in the over 75 years since the Board was established. Such 
recent activism reached an unfortunate high point on August 26 of this 
year.\2\ On that day, the Board overturned substantial precedent in at 
least three cases.\3\ These decisions furthered an already activist 
agenda and represented part of a regulatory approach that has resulted 
in at least nine major policy initiatives by the Board in the last few 
months, all designed to further the ability of a union to either become 
the representative of employees in a small or fragmented bargaining 
unit, or to avoid altogether a secret ballot election. Such regulatory 
activism comes at a time when President Obama and other in his 
administration have instructed federal agencies to reduce regulatory 
red tape and enhance, however possible, measures to ensure job 
retention and job creation. One example of the current Board's activist 
agenda is its initiatives to pursue two rulemaking proposals within a 
period of a few short months, contrasted with the cautious and 
thoughtful approach that Boards in both Republican and Democrat 
administrations have taken in this area. Indeed in the history of this 
Agency it has only engaged in two rulemaking initiatives, only one of 
which was successful--the Acute Healthcare Bargaining Unit Rules.
---------------------------------------------------------------------------
    \2\ Former Chairman Wilma Liebman's term expired on August 27, 
2011, leaving the Board with now-Chairman Mark Pearce and recess-
appointed Member Craig Becker, both Democrats, and Member Brian Hayes, 
a Republican.
    \3\ There may be other cases in which former Chairman Liebman 
participated but the Agency has yet to formally release such decisions.
---------------------------------------------------------------------------
    Mr. Chairman, I know there are certain viewpoints in the employer 
community that would welcome the demise of the National Labor Relations 
Board. Certainly I have heard comments welcoming the Board's shutdown 
if it is reduced to a two-member status at the end of this year, which 
is possible given the fact that Member Becker and nominee Terence 
Flynn's nominations are still pending in the Senate, and Member 
Becker's recess appointment expires on December 31. As you are aware, 
pursuant to the U.S. Supreme Court's decision in New Process Steel, 
L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010), the Board will not be 
able to adjudicate cases in such a status. I do not agree with this 
line of thinking, as I believe it is quite important to have an 
adjudicatory body in this country available to resolve workplace 
disputes. Notwithstanding the current controversies surrounding the 
Board, I believe that representatives of management, labor, and other 
constituencies would concede that the Board over the years has helped 
contribute to the overall labor relations stability in this country, 
particularly compared to the constant labor unrest and difficulties 
evidenced in other parts of the world. There are many fine employees 
that carry out the Board's mission of promptly and efficiently 
conducting elections and resolving, in an expeditious manner, day to 
day workplace disputes. Perhaps the structure of the Board and its 
underlying statutory framework do need to be reexamined. But it is 
exceedingly important that we have a neutral and unbiased agency 
available to resolve issues that arise between labor and management. 
For the reasons outlined below, Mr. Chairman, however, the current 
direction of the Board, including the ill-advised complaint issued by 
the Board's Acting General Counsel against the Boeing Company, needs to 
change course. All parties--labor, management, and employees--that 
bring matters before the Board deserve to have their disputes 
adjudicated and resolved in an unbiased and consistent manner.
 Artificial creation of issues by the Board for policy change
    While the Board certainly has the authority to engage in both 
adjudication and rulemaking, a deeply troubling trend has emerged from 
the current Board wherein it has been deciding issues that are not 
actually before it, and even more troubling, making changes to law and 
procedure where no changes are warranted.
    For example, in Specialty Healthcare and Rehabilitation Center of 
Mobile, 357 NLRB No. 83 (Aug. 26, 2011), no party to the case asked the 
Board to overturn Park Manor Care Center, 305 NLRB 872 (1991), nor did 
they ask the Board to consider the Park Manor standard, which had been 
applied for twenty years by both Republican and Democrat Boards. 
Rather, the party seeking review in that case asked the Board to 
consider whether the Regional Director erroneously failed to apply the 
standard at all. See 357 NLRB No. 83, at *18. Nonetheless, the Board, 
of its own volition, posed the question of whether Park Manor should 
continue to be followed and then proceeded to overturn Park Manor. 
Additionally, on an even more important note, the Board created a 
particularly disturbing new element to the community of interest test 
for bargaining unit determinations, which I will discuss in a moment. 
Member Hayes suggested that the Board's actions were intentional, 
stating that ``[t]hey know full well that a petitioned-for CNA unit 
would ordinarily be found inappropriate under the Park Manor test, but 
it serves their greater purposes to overturn that test to get to the 
issue they really want to address, that is, a reformulation of the 
community-of-interest test.'' Id.
    Likewise, in Roundy's Inc., Case No. 30-CA-17185, the Board asked 
interested parties to comment on ``[w]hat bearing, if any, does 
Register Guard, 351 NLRB 1110 (2007), enf. denied in part, 571 F.3d 53 
(D.C. Cir. 2009), have on the Board's standard for finding unlawful 
discrimination in non-employee access cases?'' While Register Guard's 
first holding that employer e-mail systems should be treated as 
employer property for Section 7 purposes under the National Labor 
Relations Act (``NLRA'' or ``the Act'') is not even arguably at issue 
in Roundy's, Inc., it would be improper for the Board to attempt to 
reverse Register Guard's second holding, which defined 
``discrimination,'' through Roundy's Inc.
    Further, the Board's Notice of Proposed Rulemaking (NPRM) regarding 
representation case procedures may be the most egregious example of the 
Board overreaching to change precedent and procedure without any basis 
whatsoever for doing so. Indeed, based on the Board General Counsel's 
Annual Summary of Operations, the Board is routinely exceeding its own 
time targets for representation cases. The NLRB's internal objective in 
representation cases is to complete elections within 42 days of the 
filing of a petition. See NLRB General Counsel, Summary of Operations 
(Fiscal Year 2010), G.C. Mem. 11-03, at 5 (Jan. 10, 2011). In 2010, 
regional offices of the Board exceeded this objective completing 
initial elections in representation cases in a median of 38 days from 
the filing of the petition and conducting 95.1% of all initial 
representation elections within 56 days of the filing of a petition.\4\
---------------------------------------------------------------------------
    \4\ Decisions or supplemental reports issued in cases involving 
post-election objections and/or challenges requiring a hearing were 
issued in a median of 70 days, exceeding the Board's goal by 10 days. 
Decisions or supplemental reports issued in cases addressing post-
election objections and/or challenges not requiring a hearing were 
issued in a median of 22 days, also exceeding the Board's goal by 10 
days. See NLRB General Counsel, Summary of Operations (Fiscal Year 
2010), G.C. Mem. 11-03, at 5 (Jan. 10, 2011)
---------------------------------------------------------------------------
    Finally, the union win rate in petitions going to an election has 
consistently exceeded 60% in recent years as demonstrated by the 
following chart relying on Board statistics.



    Simply stated, the Board, in recent months, has proceeded to create 
its own agenda, irrespective of the issues presented to it in its case 
adjudication and in the rulemaking area has also proceeded to attempt 
to implement change without an established need or record to support 
such initiatives.
 Establishment of ``gerrymandered'' bargaining unit 
        determination standard that will result in fragmented and 
        numerous micro or small units
    On August 26, 2011, the Board released its decision in Specialty 
Healthcare. The Board in this 3-1 decision, over the dissent of Board 
Member Brian Hayes, not only overturned the standard for unit 
appropriateness determinations in the non acute health care industry 
which had been in place for 20 years, but also significantly altered 
its traditional community of interest test explaining that the Board 
would no longer address whether the petitioned-for unit is 
``sufficiently distinct'' to warrant a separate unit. The latter part 
of this holding, additionally, reverses a 30-year old standard that had 
been applied by Republican and Democrat Boards and that the current 
Board cited with approval as recently as last year. Indeed, such 
approval included an affirmative vote by then Chairman Liebman. See 
Wheeling Island Gaming, 355 NLRB No. 127 at *1 fn. 2 (Aug. 27, 2010) 
(citing, Newton Wellesley Hosp. 250 NLRB 409, 411-12 (1980)). The 
Board's decision in Specialty Healthcare may turn out to be one of the 
most significant reversals of precedent in recent Board history and 
may, in fact, lead to a multiplicity of small and fragmented bargaining 
units in virtually every employer's workforce in the country. One would 
be hard pressed to think of an initiative by a federal agency that 
could have had a more of a negative impact on job retention, job 
creation, and productivity in this country. For example, as Member 
Hayes noted in his dissent, the employer in Specialty Healthcare beyond 
now being required to recognize a union that represents only its 
certified nurse assistants,\5\ could also find itself dealing with 
separate bargaining units of RNs, LPNs, cooks, dietary aides, business 
clericals, and residential activity assistants. See 357 NLRB No. 83 at 
*19. Further, those units would be incredibly small, with the dietary 
aides having only 10 members, the cooks three members, and the activity 
directors unit consisting of only two employees.
---------------------------------------------------------------------------
    \5\ The Board recently opened the ballots that were impounded in 
the Specialty Healthcare election and the union prevailed by a vote 
count of 39-17.
---------------------------------------------------------------------------
 The Board's proposed expedited (quickie) election rules lack a 
        factual foundation, are not consistent with the federal rules 
        of civil procedure and sound administrative law principles, and 
        violate fundamental due process rights of employees and 
        employers
    The Board, on July 22, 2011, in another 3-1 decision, again over 
the dissent of Member Hayes, published an extensive and far reaching 
number of proposed new election rules--the most extensive proposed 
rulemaking changes in the Board's history. Such proposed rules would 
modify over 100 sections and subsections of the current Board 
Regulations and include changes which span over 35 3-column pages of 
the Federal Register. Further, the Board, over the objection of a 
number of employer groups, including HR Policy Association (HR Policy), 
SHRM, the U.S. Chamber of Commerce and other similar groups, required 
all interested parties to file comments regarding such proposed rule 
changes within only a 60-day period and refused to extend such comment 
period. Indeed, the 60-day period for comments is the minimum amount of 
time under President Obama's Executive Order 13,563 and, given the 
extensive nature of such proposed rules, such time period should have 
been extended.
    Likewise, Executive Order 13,563 requires that ``[b]efore issuing a 
notice of proposed rulemaking, each agency, where feasible and 
appropriate, shall seek the views of those who are likely to be 
affected, including those who are likely to benefit from and those who 
are potentially subject to such rulemaking.'' (Emphasis added.) 
However, the Board did not do so for the vast majority of the proposed 
rules in the NPRM.\6\ The Board's disregard of the requirements of 
Executive Order 13,563 not only demonstrates administrative agency 
arrogance, but is also a one-sided and extremely biased approach with 
respect to how the important process of conducting secret ballot 
elections should be carried out by the Agency.
---------------------------------------------------------------------------
    \6\ The only areas where the Board did solicit input in its 
rulemaking proposals included (i) a request for interested parties to 
comment on a change in the Board's ``blocking charge'' policy, which 
pertains to the procedure where elections are held in abeyance during 
the pendency of resolution of unfair labor practice charges; (ii) what 
remedies, if any, should be imposed on improper release of confidential 
employee information; and (iii) whether the Board should permit 
electronic signatures on union authorization cards.
---------------------------------------------------------------------------
    If the Board intends to publish a Final Rule, it must affirmatively 
vote to do so while it still has a quorum of three members before 
December 31, 2011. The last comments submitted to the Board were 
submitted on September 7, 2011. Based on the number of working days 
remaining between September 7 and December 31, the Board would need to 
review over 650 comments per day to consider all 51,576 comments. 
Simply put, if the Board proceeds to issue a Final Rule in such a time 
frame, it will be hard for individuals to accept that the Board 
actually read and thoughtfully considered the comments submitted.
    The proposed rules are literally a procedural and substantive 
``mine field'' for employers. There are a considerable number of 
procedural and substantive deficiencies with such proposed Board rules, 
which are outlined later in my testimony.
 The Board's reversal of precedent in its Lamons Gasket and 
        URL-Unicco Service Co. decisions also evidences its ideological 
        approach to case law adjudication, and such decisions 
        inappropriately will delay or deprive employees of the rights 
        to vote in Board-conducted secret ballot elections
    Again, on August 26, 2011, the Board reversed its 2007 decision in 
Dana Corp., 351 NLRB 434 (2007) (Dana I). The decision in question, 
Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2007), eliminated a 45-day 
period for employees to exercise their Section 7 rights to file a 
decertification petition or for a rival union to file a petition after 
an employer voluntarily recognized a union and before the Board's 
recognition bar could take effect. Under this decision, employees will 
now be prohibited from filing a petition for election for ``a 
reasonable period of time,'' which the Board defines as ``no less than 
6 months after the parties' first bargaining session and no more than 
one year.'' Id. at *10. Member Hayes, again in dissent, characterized 
the Board's decision as ``a purely ideological policy choice, lacking 
any real empirical support and uninformed by agency expertise.'' Id. at 
*11.
    There are numerous policy considerations that encourage and support 
employers and unions from entering into recognition agreements. A wide 
variety of such agreements have resulted in labor relations stability 
between unions and employers, including particularly those that 
culminate with a Board-conducted secret ballot election. Under such 
agreements, if the union is successful, it obtains the ``election bar'' 
protection for a minimum of one year, in most circumstances, 
restricting the right of a rival union to intervene and to permit the 
parties to negotiate a collective bargaining agreement. However, it is 
difficult to understand Labor's negative reaction to the Board's 
holding in Dana I and the Board's subsequent criticism of Dana in 
Lamons Gasket Co. As the majority in Lamons Gasket Co. noted, election 
petitions were only filed in 102 of the 1,333 requests for Dana 
notices. Id. at *4. Moreover, elections only occurred in 62 cases, with 
the voluntarily-recognized union winning the vast majority of those 
elections. Simply stated, it is difficult to understand why providing 
employees with notice of their rights to an election in Dana cases was 
so repugnant, particularly when the Board was contemporaneously 
requiring the posting of employee rights in other scenarios.
    In the third decision, also issued on August 26, 2011, on another 
3-1 vote, again over the dissent of Member Hayes, the Board 
considerably narrowed the opportunity for employees to determine, by 
secret ballot election, whether an incumbent union should continue to 
be recognized after the sale of a business. UGL-UNICCO Service Co., 357 
NLRB No. 76 (Aug. 26, 2011). This case involves the federal labor law 
``successorship doctrine'' wherein an employer that purchases the 
assets of a unionized business and retains at least a majority of the 
seller's unionized workforce must recognize and bargain with the 
incumbent union. Under this doctrine, an employer has the legal option 
not to accept the current terms and conditions of employment and 
bargain with the incumbent union for a new contract. Such employer also 
has the option to adopt the existing bargaining agreement. If the 
employer elects the option to bargain for entirely new terms and 
conditions of employment, it now will be penalized, as will the 
employees in question, by the imposition of a bar prohibiting an 
election for one year after the commencement of bargaining. If, however 
the employer accepts the collective bargaining agreement as the 
starting point for bargaining with the incumbent union, such an 
election would only be barred for six months. In either case, the 
impact is that employees will lose the rights that they previously had 
to have a secret ballot election conducted shortly after the 
transaction in question and may ultimately be denied all together, any 
right to participate in a Board-conducted secret ballot election to 
determine whether the incumbent union still represents a majority of 
bargaining unit members.
 The Board's language in its new mandated workplace poster is 
        not balanced, and the Board, in all likelihood, has exceeded 
        its statutory authority by implementing such rule
    On August 30, 2011, on a 3-1 vote, again over the dissent of Member 
Hayes, the Board published a Final Rule requiring all employers subject 
to the NLRA to post notices informing their employees of the right to 
unionize under the NLRA and to engage in collective bargaining. See 76 
Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. Sec.  
104). The Board engaged in this action despite President Obama's 
Executive Order 13,563, which directs federal agencies to minimize the 
imposition of new rules and follow certain requirements, as discussed 
above. This new rule also creates a new category of unfair labor 
practices dictating that employers who fail to post the required notice 
will be found to have violated 29 U.S.C. Sec.  159(a)(1). Additionally, 
the Board will consider, under such new rule, ignoring the six-month 
statute of limitations period contained in 29 U.S.C. Sec.  160(b) if an 
employer fails to post the notice. Finally, under such new rule, an 
employer that fails to post the notice may also be found by the Board 
to have illegal motives and ``animus'' toward a union in a wholly 
independent unfair labor practice proceeding, thereby shifting the 
presumption of guilt on to an employer in such a proceeding.
    This new rule has already been challenged by a number of employer 
groups in federal district court and even if such courts ultimately 
conclude that the Board has the statutory authority to require the 
posting of such notices, the language in the Board's poster does not 
include a complete statement of all of the rights that employees have 
under the NLRA, nor does the Board's required language include a clear 
and concise statement of the rights of employees to decide not to form 
and join a union or to decide not to continue to remain in a union. 
Member Hayes, in his dissent to the new rule, estimated that such rule 
will impose new obligations on approximately six million employers, the 
vast majority of whom are small or mid-size employers.
 The Board's activist agenda demonstrates a disregard for sound 
        public policy, has resulted in rejection of Board precedent 
        with less than a full complement of members and undermines the 
        agency's credibility and neutrality
    As noted above, prior to the expiration of former Chairman 
Liebman's term, the Board only had three confirmed members (Chairman 
Liebman, Member Mark Pearce and Member Hayes). Member Becker was 
serving, and continues to serve, on a recess appointment basis. It is 
submitted that the Board should not proceed to overturn precedent and 
engage in such an activist agenda with only three members, particularly 
since only two have been confirmed by the United States Senate. I 
realize that there are differing views on what the Board practice has 
been in the past with respect to overturning precedent without a full 
Board being confirmed. When I previously testified before this 
Committee on a similar topic, I quoted former Chairman Liebman's 
dissent in Teamsters Local 75 (Schreiber Foods), 349 NLRB 77, 97 
(2007), where she stated that, ``[g]iven the Board's well-known 
reluctance to overrule precedent when at less than full strength (five 
Members), the Board could not have been signaling to the court that a 
full-dress reconsideration of Meijer was in the offing.'' In a February 
25, 2011, publicly-released letter to Subcommittee Chairman Roe, then 
Chairman Liebman took issue with my citation to her quote. See Ltr. to 
Chairman Roe, February 25, 2011, attached hereto as Attachment B. 
Although the cite to former Chairman Liebman's quote was correct, she 
went on to explain her position by stating that ``[t]he Board's 
tradition * * * is not to overrule precedent with fewer than three 
votes to do so,'' citing to Hacienda Resort Hotel & Casino, 355 NLRB 
No. 154 at *2 fn. 1. In that footnote, she and then Board Member and 
now Chairman Pearce explained that ``[d]uring those relatively rare 
periods when it has had only three members, the Board has not hesitated 
to reverse prior decisions, where there was a unanimous vote to do 
so.'' Id. (emphasis added). Given the fact that there are now only 
three sitting members of the Board (including only two confirmed Board 
Members), one would expect the Board to follow its ``tradition'' not to 
reverse precedent--whether by adjudication or rulemaking--without three 
votes to do so. Will the present Board, under the leadership of 
Chairman Pearce, follow his previous commitment on this point?

    [Attachment B may be accessed at the following Internet 
address:]

            http://www.laborrelationstoday.com/uploads/file/
                      chairmancommitteeletter.pdf

 Additional considerations regarding the Board's specialty 
        healthcare decision
    The Board's decision in Specialty Healthcare is, as noted above, 
flawed for a number of reasons. Not only did the Board reach an issue 
that was not actually before it--whether to reverse Park Manor--but the 
Board then went further to apparently modify the long and well accepted 
community of interest standard as applied to all employers.\7\ The 
Board's decision appears to invite unions to petition for the 
narrowest-possible unit and is particularly flawed for a number of 
legal reasons. Such substantive legal issues and concerns are outlined 
in detail in the amicus brief filed with the Board in this case by the 
Coalition for a Democratic Workplace and HR Policy Association. A copy 
of such amicus brief is attached hereto as Attachment C.
---------------------------------------------------------------------------
    \7\ Employers in the acute care industry, where unit 
appropriateness determinations are governed by separate Board 
regulations, will continue to apply those regulations. See 29 C.F.R. 
Sec.  103.30.

    [Attachment C may be accessed at the following Internet 
address:]

                 http://www.nlrb.gov/case/15-RC-008773

    The Board's decision in Specialty Healthcare attempts to establish 
an entirely new and difficult standard--the overwhelming community of 
interest test--for an employer to meet if it attempts to expand a unit 
which is petitioned for by a union. The Board stated such new standard 
as follows:

    When employees or a labor organization petition for an election in 
a unit of employees who are readily identifiable as a group (based on 
job classifications, departments, functions, work locations, skills, or 
similar factors), and the Board finds that the employees in the group 
share a community of interest after considering the traditional 
criteria, the Board will find the petitioned-for unit to be an 
appropriate unit, despite a contention that employees in the unit could 
be placed in a larger unit which would also be appropriate or even more 
appropriate, unless the party so contending demonstrates that employees 
in the larger unit share an overwhelming community of interest with 
those in the petitioned-for unit.

357 NLRB No. 83 at *12-13 (emphasis added) (footnotes omitted). One 
significance of this description of the post-Specialty Healthcare unit 
determination analysis is that it omits a critical step that the Board 
reaffirmed just last year. In Wheeling Island Gaming, Inc., 355 NLRB 
No. 127, then-Chairman Liebman and Member Schaumber wrote that:

the Board's inquiry never addresses, solely and in isolation, the 
question whether the employees in the unit sought have interests in 
common with one another. Numerous groups of employees fairly can be 
said to possess employment conditions or interests in common. Our 
inquiry--though perhaps not articulated in every case--necessarily 
proceeds to a further determination whether the interests of the group 
sought are sufficiently distinct from those of other employees to 
warrant establishment of a separate unit. The Board has a long history 
of applying this standard in initial unit determinations.

Id. at *1 fn. 2 (internal quotation and citation omitted).
    After Specialty Healthcare, it appears that a union is no longer 
required to identify a unit that is ``sufficiently distinct'' from 
other employees to warrant considering them an appropriate unit. As a 
result, it is reasonable to expect that unions will seek smaller or 
micro units with fewer employees, making it far easier to win elections 
and obtain a foothold in previously unorganized employers or to expand 
union presence in partially unionized work settings. Indeed, it is easy 
to track the objective of the Specialty Healthcare majority here by 
reviewing historical NLRB data that establishes clearly that the 
smaller the voting unit, the greater the chance the union has to 
prevail. A chart outlining such data, prepared by Professor 
Bronfenbrenner of Cornell University, states as follows:



    Source: The Impact of Employer Opposition on Union Certification 
Win Rates: A Private/Public Sector Comparison, Kate Bronfenbrenner and 
Tom Juravich, Cornell University ILR School, Oct. 1, 1994.

    The increased potential for gerrymandered numerous smaller units, 
however, also presents additional significant issues for both employers 
and employees. In Specialty Healthcare itself, Member Hayes noted that 
the majority's rule could produce separate appropriate units for 
registered nurses, licensed practical nurses, cooks, dietary aides, 
business clericals, and residential activity assistants. See 357 NLRB 
No. 83 at *19. Thus, counting the CNA-only unit approved by the 
majority, Specialty Healthcare--an employer of approximately 100 
employees, see id. at *13--could find itself with seven bargaining 
units, seven collective bargaining agreements, seven discipline 
schemes, seven wage and benefits schemes, etc. Each bargaining unit 
will also likely seek to protect work performed exclusively by unit 
members, attempting to put contractual walls around the unit's work. 
Doing so impairs an employer's ability to assign work in the most 
efficient manner, resulting in a loss of productivity that detracts 
from, rather than enhances, economic competitiveness.
    Beyond facing these administrative burdens, employers would find 
themselves at increased risks of work stoppages at the hands of 
multiple units, each of which could halt the employer's operations if 
their bargaining demands were not met. See Continental Web Press, Inc. 
v. NLRB, 742 F.2d 1087 (7th Cir. 1984) (noting that ``[t]he different 
unions may have inconsistent goals, yet any one of the unions may be 
able to shut down the plant (or curtail its operations) by a strike.'') 
Thus, an employer balkanized into multiple units faces not only the 
costly burden of negotiating separately with a number of different 
unions, but also with the attendant drama and potential work 
disruption, coupled with a threat that its operations could be ceased 
by self-interested fractions of the workforce. See id. Such risk is 
particularly high for small businesses, who almost certainly would lack 
the long-term reserves to withstand a shutdown. Their options--
capitulate or close shop--are bleak not only for the business owners, 
but also for the employees of those small businesses.\8\
---------------------------------------------------------------------------
    \8\ The Board's NPRM concludes that the proposed representation 
case procedures will not have a significant impact on a substantial 
number of small entities and, as such, the Board is not required to 
comply with the Regulatory Flexibility Act, 5 U.S.C. Sec.  601 et seq. 
See 76 Fed. Reg. 36,833. Such statement is simply unsupportable. For 
all the reasons stated herein and in the comments submitted by numerous 
small business, the Proposed Rule would have a profound impact on small 
businesses. The Board's similar decision to not comply with the 
Regulatory Flexibility Act with respect to the Notice Posting Final 
Rule is one of the bases for the U.S. Chamber of Commerce's lawsuit 
challenging the Final Rule.
---------------------------------------------------------------------------
    An increase in the proliferation of bargaining units also limits 
the rights of employees within the workforce. Allowing the type of 
narrow units approved by Specialty Healthcare creates the risk that the 
workforce will fracture based on the communities of interest as defined 
by a regional director, rather than on the underlying functional 
realities of the positions. I am most troubled, however, by the 
potential freezing effect that fragmented units would have on employee 
advancement. When the varied collective bargaining agreements 
inevitably have differing provisions on transfers, promotions, 
seniority, position posting and preference, etc., it will be extremely 
difficult--if not impossible--for an employee whose unit is limited to 
his or her unique job description to develop his or her career.
    Unfortunately, as reflected in the attached brief submitted by 
Coalition for a Democratic Workplace and HR Policy Association, these 
arguments were submitted to the Board and were rejected. The Board's 
decision creates real threats not only to labor relations, but also to 
the ability of employers to remain competitive in this economy and 
provide the jobs the current Administration seeks. I encourage the 
Committee to seriously consider whether the Board's decision in 
Specialty Healthcare is true to the Labor Management Relations Act's 
goals of regulating dealings between employees and employers while 
``promot[ing] the full flow of commerce. * * *'' 29 U.S.C. Sec.  
141(a). It appears that legislative relief will be needed to correct 
this unfortunate decision.\9\
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    \9\ If, as expected, the Board has only two sitting members at the 
end of 2011 and, therefore, pursuant to the U.S. Supreme Court decision 
in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010), 
will be precluded from engaging in adjudication, the decision in 
Specialty Healthcare will continue to be Board law for the foreseeable 
future and therefore will be applied by the Board's various regional 
directors. An employer faced with application of Specialty Healthcare 
at that point would not have an avenue for appeal, given the fact that 
the Board in Washington would not be permitted to issue a decision in 
the case in question until a third Board member is either appointed or 
confirmed. Further, given the fact that the only avenue for an employer 
to contest such unit determination matters is to refuse to bargain, 
have the Board's General Counsel issue a Section 8(a)(5) refusal to 
bargain charge and appeal the ultimate issuance of a complaint by the 
Board on such charge to a United States Circuit Court of Appeals, there 
may be more than the usual delay in having the decision in Specialty 
Healthcare overturned.
---------------------------------------------------------------------------
 Additional considerations regarding the Board's proposed 
        election rules
    While the Board's rulemaking regarding representation case 
procedures is still pending, there is reason to be concerned that, as 
with the notice posting rulemaking, there will be very little change 
between the Board's Proposed Rule and the Final Rule. Indeed, as noted 
above, the scope and reach of such proposed rules are unprecedented and 
exceedingly complex. They are also extremely controversial. For 
example, as of Monday, September 19, 2011, the Board's rulemaking 
docket on www.regulations.gov contained 51,576 public submissions or 
comments in response to the Board's Notice of Proposed Rulemaking. I 
encourage the Committee and its staff to review a sampling of the 
comments. Some comments, particularly those submitted by individual 
citizens, reveal a deep-seeded distrust of the Board's motives in the 
rulemaking, indicating that the Board is, in fact, losing institutional 
credibility. But other comments illustrate that the Board's Proposed 
Rule makes for poor labor policy both procedurally and substantively. 
Excerpts from the comments submitted by HR Policy Association and SHRM 
are attached as Attachment D.

    [Attachment D may be accessed at the following Internet 
address:]

                http://www.hrpolicy.org/downloads/2011/
                NPRM_Representation_Case_Procedures.pdf

    From a procedural standpoint, the Board has engaged in this 
rulemaking on an highly accelerated timetable, without first soliciting 
input from interested parties, apparently to make a decision while the 
Board still has an operating quorum--albeit with one Member whose 
nomination stalled in the Senate. The Board's NPRM proposed to modify 
over 100 sections and subsections of the current Board regulations--
changes which spanned over 35 three-column pages of the Federal 
Register. As discussed above, the Board's allowance of 60 days may be a 
permissible amount of time for an agency to accept comments, and is the 
minimum amount of time under Executive Order 13,563. But, when various 
organizations filed a request to extend the comment period, the Board 
denied the request, requiring parties to comment on extensive 
modifications to the Board's representation case procedures in an 
unreasonably short period of time. The Board's additional failure to 
follow the Executive Order's requirement of seeking input from 
interested parties before issuing an NPRM is also unfortunate.
    Another procedural flaw with the rulemaking involves the Board's 
current composition. While, as discussed elsewhere, the Board may 
decided to adopt, on a 2-1 vote, a rule that reverses precedent, doing 
so would violate the Board's ``tradition'' of requiring at least three 
votes to reverse precedent, as recognized by former Chairman Liebman 
and current Chairman Pearce, and would be exceedingly poor public 
policy and create unfortunate precedent. As the Board's NPRM notes, 
there have been few, if any, substantial changes to the Board's 
representation case procedures for the past 70 years. See 76 Fed. Reg. 
36,813-14. It is difficult to understand what reason there is to change 
the rules now, in a matter of months, other than opportunism.
    Substantively, certain comments submitted to the Board, including 
those of HR Policy Association and SHRM, objected that the Board's 
proposed changes were in excess of the Board's rulemaking authority, 
were substantively unnecessary, were contrary to the Act, or all of the 
above. Further, the proposed rules evidence exceedingly poor public 
policy and, in all likelihood, will exacerbate, rather than alleviate, 
labor tension between employers and employees and, in the pursuit of 
faster elections, it sacrifices the Board's appearance as a neutral 
party.
    For instance, one of the central changes contained in the NPRM is 
the requirement that the non-petitioning party--almost always the 
employer--raise every potential issue at the initial election hearing 
or waive those issues. As a result, there is a significant risk that 
the employer will follow the approach of civil defendants in lawsuits 
and litigate every potential issue to avoid the risk of waiver. Doing 
so would only extend, rather than accelerate, pre-election hearings.
    Another central change is the so-called 20% rule, which would 
require an election hearing officer to close the hearing and the 
regional director to direct an election when the only issue in dispute 
involves the voter eligibility of less than 20% of the voting unit. It 
appears that the result of the 20% rule is that an election would occur 
with the voting eligibility and unit placement of those individuals in 
doubt, only to be resolved in the event that their votes would 
determine the outcome of the election, in which case a hearing would be 
held and none of the NPRM's desired time saving would have been 
achieved. Accordingly, the likely result of the proposed rule change is 
that the dispute will have been prolonged with the status of the 
employees in question remaining in dispute. Not only does this increase 
labor tension in the workplace and on specific individual employees, 
but it also is contrary to the Act's goals of ``encouraging practices 
fundamental to the friendly adjustment of industrial disputes.'' 29 
U.S.C. Sec.  151.
    The Board's Proposed Rule is also flawed in that it conflicts with 
portions of the Act and, by doing so, likely violates both the Board's 
rulemaking authority under Section 6 and Section 706(2)(A) of the 
Administrative Procedure Act, which requires that any rule promulgated 
by the Board must not (1) conflict with any other portions of the Act; 
or (2) be arbitrary, capricious, an abuse of discretion, or otherwise 
not in accordance with law. 29 U.S.C. Sec.  156; 5 U.S.C. Sec.  
706(2)(A). Specifically, by so drastically limiting the scope of the 
pre-election hearing and allowing the regional director or hearing 
officer to deny the non-petitioning party a meaningful pre-election 
hearing through the 20% rule, the Proposed Rule is directly 
contradictory to Section 9(c)(1) of the Act, which requires the Board 
to hold ``an appropriate hearing'' prior to an election.
    The Board's NPRM on representation procedures also requested 
parties to comment on what sanctions, if any, should be imposed on 
organizations that impermissibly utilize or disseminate employee 
confidential information that would be required in the lists to be 
furnished to such organizations in the pre-election period. 76 Fed. 
Reg. 36,821. Hopefully the Board will reconsider its new requirement 
that employers provide personal telephone numbers and personal e-mail 
addresses to the Board and the petitioning party. However, if the Board 
should ultimately implement a rule requiring dissemination of such 
information, in addition to available state and federal legal remedies, 
the following sanctions should be imposed:
     Any organization improperly utilizing or disseminating 
employee confidential information should be prohibited, for one year 
following the misuse of such information, from filing any petition for 
representation for any bargaining unit with the NLRB.
     Any organization improperly utilizing or disseminating 
such employee confidential information should be required to take all 
reasonable and appropriate steps to remedy the violation.
     Any organization improperly utilizing or disseminating 
such information should be required to send, to each employee whose 
information has been improperly used and disseminated, a letter of 
apology. Such letter should describe what steps have been taken to 
remedy the improper use of the information.
    The potential information that an employer may be required to 
furnish to the Board and petitioning parties regarding its employees, 
however, is not just information of great importance to employees. Such 
information also constitutes important employer property. Indeed, the 
inappropriate release and utilization of such information could lead to 
improper recruiting of valuable company employees not to mention other 
interference by third parties with the employer's workers. As such, 
petitioning organizations should be required to treat such employer 
property with the utmost care.
    Additionally, not only does the NPRM make substantial changes to 
the rules of representation cases, but it also then strips the right to 
review of decisions made under those new rules. The Proposed Rule 
strips from employers any right to review the hearing officer's 
determinations prior to an election and, in nearly all cases, even 
after an election. Instead, if an employer believes that the election 
was improper, the fastest avenue to review will be to refuse to 
bargain--clearly contrary to the Act's goals of resolving disputes--and 
litigate the resulting Section 8(a)(5) violation through an 
administrative law judge, the Board, and finally a U.S. Court of 
Appeals. In that instance, again, the desired time-saving aspects of 
the NPRM are lost.
    The Board's proposed changes--ending the hearing when only 20% of 
the unit is left in dispute, stripping appeal rights, etc.--are all in 
the sake of holding faster elections. The Proposed Rule requires that 
the pre-election hearing be held within seven days of the petition 
being filed--an unreasonably short amount of time--and, once the 
hearing is completed, an election directed without post-hearing briefs, 
decisions on open issues, or further appeal on ``the earliest date 
practicable consistent with th[e] rules.'' See 76 Fed. Reg. 36,838 
36,842 (to be codified at 29 C.F.R. Sec. Sec.  102.63(a)(1), 
102.67(b)). Such a truncated ``quickie'' election process threatens to 
eliminate the ``appropriate hearing'' required by Section 9(c)(1) of 
the Act and does so unnecessarily, given the Board's current success 
against its own targets for representation case processing as discussed 
previously above.
    Further, but perhaps most substantively problematic, is the one-
sidedness of the proposed changes. Under the proposed rule, the 
employer has an obligation to raise every potential issue or waive 
raising it at a later date. The employer also has the obligation to 
propose what unit it would stipulate was appropriate, assuming that the 
employer does not consent to the petitioned-for unit. Indeed, this 
obligation will now be even more challenging with the Board's confusing 
``overwhelming community of interest'' standard established in its 
Specialty Healthcare decision. The proposed rule requires the employer 
to provide voter eligibility lists within hours of an election being 
directed, and requires that the list include private information of the 
employer's employees, including home addresses, telephone numbers, and 
e-mail addresses.
    Finally, it is important to understand the potential dual impact of 
the Board's decision in Specialty Healthcare and its objective with 
respect to the proposed new election rules. Simply stated, the proposed 
rule provides unions with faster elections and Specialty Healthcare 
gives the unions smaller units that are easier to win. Such two-pronged 
approach will result in all probability in numerous highly-fragmented 
voting units with virtually no time for employers to state their 
position and more importantly for employees to intelligently 
communicate with one another regarding the merits or lack thereof of 
unionization. As noted above, the Board has been extremely efficient in 
the processing of petitions for election and, as also noted, the 
union's ``win rate'' is already in excess of 60%. Accordingly, there 
simply is not a documented need or logical reason for the Board to 
proceed to adopt its proposed new election rules.
 Other pending Board cases of significance
    In addition to the above outlined-matters, there are other cases 
pending before the Board that raise significant legal and policy 
issues. In each of these cases, the Board has requested participation 
by interested parties in the form of requests for amicus briefs.\10\ 
Such cases include the following:
---------------------------------------------------------------------------
    \10\ Copies of the Board's Notices and Invitations to File Briefs 
and filed briefs can be found on the Board's website at http://
www.nlrb.gov/cases-decisions/invitations-file-briefs.
---------------------------------------------------------------------------
     Roundy's Inc.--In Roundy's Inc., the Board proposes to 
return to a line of cases twice rejected by a United States Court of 
Appeals. Specifically, the Board is considering a return to the rule 
that ``an employer that denies a union access while regularly allowing 
nonunion organizations to solicit and distribute on its property 
unlawfully discriminates against union solicitation.'' The Board also 
appears to be considering whether to use Roundy's Inc. as a vehicle to 
overturn Register Guard, 351 NLRB 1110 (2007), setting forth the 
definition of ``discrimination'' over then-Member Liebman's dissent.
     DR Horton, Inc.--In DR Horton, Inc., the Board will 
address whether an employer violates Section 8(a)(1) of the Act by 
maintaining and enforcing an arbitration agreement requiring employees, 
as a condition of employment, to (1) submit all employment disputes to 
individual arbitration, (2) waive their rights to a judicial forum for 
such disputes, and (3) waive the right to consolidate claims or proceed 
as a class or collective action.
     Hawaii Tribune-Herald--The Board in Hawaii Tribune-Herald 
appears poised to expand whether, and if so when, an employer has an 
obligation to provide a union with statements it obtains during an 
investigation into employee misconduct. The Board's Notice and 
Invitation to File Briefs explains that current Board precedent does 
not require employers to produce ``witness statements'' that it obtains 
during an investigation. The Board has stated it is seeking a clearer 
definition of what constitutes an exempt ``witness statement.''
     Chicago Mathematics & Science Academy Charter School, 
Inc.--Chicago Mathematics & Science Academy Charter School involves 
issues regarding the Board's jurisdiction, and appears to affect only 
charter schools, a small but growing number of employers. In a dispute 
between CMSA and the AFL-CIO, the Board will address whether the school 
is a ``political subdivision'' and exempt from the Board's 
jurisdiction. Alternatively, CMSA seeks to be covered by the Board, 
rather than the Illinois Educational Labor Relations Board.
    Hopefully, as noted above, the Board will follow past practice and 
procedure and not issue any decisions in these cases unless there is 
unanimity of the current sitting three Board Members. Indeed, if 
precedent is to be overruled in any pending case, the past practice of 
requiring three affirmative votes to overrule precedent certainly 
should be followed.
 Conclusion
    In conclusion, Mr. Chairman, I would be happy to take any questions 
the Committee might have regarding my testimony.
                                 ______
                                 
    Chairman Kline. Thank you, sir.
    I thank all the witnesses for their testimony. And trying 
to stay with the light system, I will try to stay with the 
light system myself for myself and my colleagues as we go 
forward. And I will recognize myself for questions.
    I want to pick up, Mr. King, with the specialty ruling, 
which is where you completed your testimony. And I have got 
several questions written down here. But let us just start to 
sort of unravel it here in the 4 and a half minutes that I have 
got.
    Prior to specialty, what standard did the board use to 
determine an appropriate bargaining unit? Prior to specialty 
what was the standard?
    Mr. King. Mr. Chairman, it was the traditional community of 
interest test. There had to be very distinct analysis 
undertaken. But it never, ever had an overwhelming community of 
interest test.
    Chairman Kline. And that is the standard now under 
specialty, correct?
    Mr. King. That is what the board said.
    Chairman Kline. Okay. So, specialty was obviously a single 
case. We heard about it was nurses and nurses did not want to 
be with janitors or something. But what industries are affected 
by this ruling?
    Mr. King. Every employer, Mr. Chairman, in the country 
except for acute care hospitals, whether it be a restaurant, 
whether it be a small hardware store, whether it be a medium 
sized factory or whether it be Boeing. Every, every employer in 
this country but for acute care is impacted.
    Chairman Kline. Until specialty, when did the board use 
overwhelming community of interest as a test?
    Mr. King. Only in accretion cases. And pardon me for being 
just a bit technical, but accretion is a formula or a standard 
where a small group of unrepresented employees are folded into 
or brought into a larger represented group of employees. That 
is when the overwhelming community of interest test was used.
    This is a dodge and weave game by the majority. I know 
people will say this is not a change, that is flat wrong. Read 
the opinion.
    Chairman Kline. Mr. Mack, let me--we are going to keep 
talking about specialty here and take advantage of your years 
of experience. As a regional director, is there any 
circumstance under which you would have denied a union petition 
bargaining under the standard that is now in specialty health 
care? I think you addressed this in your testimony. If that 
standard had been in place, would you have denied any union 
bargaining units?
    Mr. Mack. Under the specialty health care test you could 
not turn down any unit. The two employees working in the back 
doing the same kind of work, even though there are 50 employees 
in the group, you would have to certify those two employees.
    Chairman Kline. And so, you could end up with a workplace 
with 100 employees. Under that example you would have 
theoretically 20, 30 bargaining units?
    Mr. Mack. Yes, sir. Absolutely correct, Your Honor.
    Chairman Kline. Mr. Martin--pardon me?
    Mr. Martin. May I comment?
    Chairman Kline. You may.
    Mr. Martin. That is just not so. What specialty health care 
says is they return to the community of interest. The 
overwhelming community of interest that is raised in that case 
says that if somebody is left out of the unit and they have an 
overwhelming of interest they cannot be excluded.
    So, for example, if the certified nurses had said, well we 
only want the nurses on the first shift and the second shift, 
and you were to exclude them on the third, you said you cannot 
do that. But the community of interest test does not provide 
that there could be----
    Chairman Kline. I am sorry. We are playing with my time. We 
have got clearly a difference here among experts. Mr. Mack has 
had an awful lot of experience, was a member of the NLRB and is 
saying that you could in fact have a circumstance where you 
have got bargaining units of two or three or four. And there is 
nothing the board could do about not recognizing that.
    Mr. Mack. You would be required to do that.
    Chairman Kline. And would in fact be required to do that.
    So, it is an overwhelming community of interest test and 
not the community of interest test. And that is sort of the 
heart of this issue.
    So, back to you, Mr. King; we are dealing with a number of 
rulings here. One of them, in addition to specialty is the June 
22nd Notice of Proposed Rule Making, the expedited, the quickie 
elections. What is the relationship between those two rulings, 
specialty and ambush?
    Mr. King. Excellent question, Mr. Chairman. They really fit 
together if you look at this big picture.
    Under special health care, small units; I just looked back 
again at the board decision. At the end of the opinion it says 
overwhelming community of interest. We cannot ignore that. But 
small, micro units there and on page 10 of my testimony, I show 
the chart that shows the correlation between the size of the 
voting unit and the union election win rate. This is based on 
historical board data going back many years.
    The smaller the unit, the much greater the opportunity for 
the union to prevail in an election if an election is held. 
Couple that, Mr. Chairman, with your question of a very quick 
election. So, that two-pronged approach: extremely small units, 
very quick elections, much quicker than what we have today. And 
the employer is at a disadvantage. But more importantly, like 
we heard from a witness today, employees are left out in the 
cold. All this goes right by.
    So, these two are designed to work together, unfortunately, 
to both employers and employees.
    Chairman Kline. Thank you. My time is expired.
    Mr. Miller?
    Mr. Miller. Mr. Martin, for a moment to give you some of my 
time to respond.
    Mr. Martin. I was just going to point out that what 
happened in specialty health care was back in 1974 there were 
rules that the board adopted about how acute care hospitals 
were supposed to operate. They came up with a set of rules just 
for acute care hospitals.
    And one of the things that happened in the Park--in the 
Park Manor case, which was overturned by specialty health care, 
is the Park Manor case sort of blended and discussed those 
rules that applied to acute care hospitals and sort of applied 
them to nursing homes, which was not the intent of the rules. 
It is clear, and court decisions make it absolutely clear that 
those rules do not apply to nursing homes.
    So, what happened was there was this ongoing debate about 
the extent to which you could only have one unit in a nursing 
home. The nurses, for example, the CNA nurses could not be in 
their own unit; they could not choose to do that. They had to 
include in that unit people that did not have a community of 
interest with them.
    So, what this case, specialty health care simply says is we 
are going to return to the traditional community of interest 
standard that determines--about 10 factors to determine or not 
there is a community of interest so it would be possible, not 
required, that the nurses could add--the nursing systems could 
have their own unit and not have to--and not be forced by the 
government to have other people in the unit other than they 
petitioned for. And that is it.
    And I--and everybody should read it because this 
overwhelming community of interest simply says that when you 
are determining the community of interest under the traditional 
standard, you cannot keep out people who have an overwhelming 
community of interest. And that is the example with the 
different shift.
    Mr. Miller. Your explanation seems contrary to both Mr. 
King's suggested that the goal here was to get smaller and 
smaller units. You are suggesting that the overwhelming 
community of interest says you cannot keep out.
    Mr. Martin. Well, this is speculation to dry criticism of 
the board----
    Mr. Miller. Mr. Mack suggested this would make the board 
unable to reject any unit, any.
    Mr. Martin. There is absolutely no legal basis for coming 
to that conclusion. In fact, what you will hear from both of 
them is them to speculate about what might happen in the 
future. And there is not any basis for doing that other than to 
attempt to demonize this decision and the board's decision.
    Mr. Miller. The title of this hearing is that there is a 
culture of union favoritism operating at the board. How would 
you respond to that? Are the unions winning all of their cases 
in front of the board?
    Mr. Martin. No. We have lost--in fact, most of the board's 
cases have been unanimous where everybody is agreeing. There 
have been a number of cases where the union or the Democrat 
representatives on the board have disagreed with one another. 
And there have been a number of cases where we have got handed 
our heads.
    We think that we are entitled to--you know, we have to give 
people notice of their Beck rights. And we think we should have 
people renew that every year. And our friends on the board said 
no, you are not going to get that.
    You have had cases where unions have been criticized for 
their pre-election conduct, had elections set aside. It simply 
is not that way.
    Mr. Miller. I guess the--we have been over this road about 
four different times. But the suggestion in previous panels has 
been that there has been a sort of a traditional operating norm 
with the board. And is this radically different? I mean, that 
is the suggestion in the title of this hearing.
    Mr. Martin. No. I mean, what happens is each time there is 
a change in administration, there is a change in the personnel 
on the board. And it would be fair to say that the Democrats 
are more likely to see it my way and the Republicans are more 
likely to see it the other way. But the way that----
    Mr. Miller. I assume that is why Congress gets involved and 
the Senate holds up people they think are going to rule one way 
or another. So, that is very hard----
    Mr. Martin. Yes, we have heard that.
    Mr. Miller [continuing]. To get to the board.
    Mr. Martin. We have heard about that. Of course all this is 
supervised by the, as I mentioned before, by the federal courts 
of appeals. Any decision of the board that is so out of line or 
is playing favorites is appealable to the Circuit Court of 
Appeals in the D.C. Circuit and/or the circuit where the 
decision comes up. And frankly, there is nothing to indicate 
those folks are in the pocket in any way of big labor.
    Mr. Miller. The other suggestion here is that on the 
election changes, suggested election changes that there is a 
hard 14-day rule. I think we went through this committee before 
and when we got done with the panels it seemed to me that 
people recognized that this was a flexible time that the board 
had provided.
    Mr. Martin. No. There is no hard rule. It would be nice if 
it would happen in 2 or 3 weeks instead of a month and a half, 
which is what it generally takes now. And you know, frankly I 
think people are capable----
    Mr. Miller. But there is nothing in that----
    Mr. Martin. No.
    Mr. Miller [continuing]. In the board that says this is a 
14-day----
    Mr. Martin. Not 14 days.
    Mr. Miller. Thank you.
    Chairman Kline. Dr. Desjarlais, you are recognized.
    Mr. DesJarlais. Thank you, Mr. Chairman.
    I was just thinking about the ranking member's responses--
we opened the hearing or his statement saying that this was a 
partisan hearing and that we had more important things that we 
should be doing. But I am sure my good friends and colleagues 
from South Carolina, Mr. Gowdy and Mr. Wilson will probably 
have a lot to say about what has happened with the Boeing 
situation and whether that is an impediment to job growth.
    I am thinking about the president's American Jobs Act that 
was proposed to a joint session about 2 weeks ago and has yet 
to be given a title or a number, even by the Democratic side of 
the aisle, and then brought up in the House for any kind of 
vote.
    So, clearly this hearing is important because job 
creation----
    Mr. Miller. Get a vote on that.
    Mr. DesJarlais [continuing]. Is----
    Mr. Miller. Are you offering us a vote?
    Mr. DesJarlais [continuing]. Is bipartisan.
    So, what I guess I would ask Mr. Martin, do you feel like 
the federal government over-regulates businesses?
    Mr. Martin. No, I do not. And in fact, you know the 
interesting thing about the collective bargaining process is 
that it is ultimately voluntary. There is no requirement that 
anybody enter into a collective bargaining agreement. And a 
collective bargaining agreement always ends up a voluntary 
agreement between the parties.
    As I mentioned to you that one of the things that we are 
doing day in and day out, especially since the collapse, is 
working closely with employers on----
    Mr. DesJarlais. Did you talk to employers? Have you been 
out in the workforce? Have you been to industries, businesses, 
manufacturing and ask them what is standing in the way of job 
creation?
    Mr. Martin. Do it every day.
    Mr. DesJarlais. Okay. And none of them are telling you that 
they need to get government out of the way, that they are over-
regulated? They are all saying, you know, the government is 
doing a good job and we need more posters in our break room.
    Mr. Martin. It depends what party they belong to.
    Mr. DesJarlais. Okay. Well, I do not know that that is the 
case because I talk to people from both parties in Tennessee's 
4th district. I have talked to 30 plus businesses. And I have 
talked to people who are staunch Democrats, and they feel that 
the government is standing in the way of job creation.
    But I like the fact that you mentioned the word voluntary 
because, Mr. Mack, you made a comment in your written testimony 
that--in regards to the National Labor Relation Act. You said 
that gives workers two rights: the right to support and form 
unions, and the right to refrain from such activities.
    Your point was that nothing gives government the right to 
give one right more value than the other. Can you briefly 
highlight a few of these inconsistencies?
    Mr. Mack. Yes. And I think that is so important when we are 
talking about the statute. It says employees have the right to 
join or the right to refrain from joining. And when we look at 
what the board is doing right now, it is eliminating or making 
smaller and smaller the refrain part.
    Let us take for an example the successor bar case. In that 
case, the board says well, if you are a successor and you 
acquire a company, if you go ahead and assume the contract or 
agree to certain principles, we will allow you to file a 
petition in 6 months to get rid of the union or for the 
employees to vote. If you do not accept a portion of the 
existing collective bargaining agreement, the employees know 
the employer can file a petition for 1 year down the road.
    Second, when you talk about this requiring employers to 
post this notice, which really does not explain the employee 
rights, the focus of that notice is employees essentially have 
to join the union to get through here.
    Mr. DesJarlais. And you have see the poster?
    And Mr. Martin, you have seen the poster?
    Mr. Martin. Yes. I have got it right here, and that is not 
what it says.
    Mr. DesJarlais. Well, how much of the text is dedicated to 
telling the employees that they do not have to unionize, versus 
how much is dedicated to telling them that they can? Just 
percentage-wise.
    Mr. Martin. The entire poster addresses a whole range of 
things.
    Mr. DesJarlais. So, there are about three sentences that 
say that they do not have to. And about the majority--it is 
fairly slanted, right?
    Mr. Martin. It is what?
    Mr. DesJarlais. It is fairly slanted. I mean, it gives 
about three sentences saying they do not have to.
    But I guess let us get back to the voluntary point. We have 
introduced--or I have introduced the bill H.R. 2854, the 
Employer Free Choice Act and used the word voluntary. And that 
is exactly what I used in this bill. It gives the employer the 
right to voluntarily hang the poster or not. Does that sound 
fair?
    Mr. Martin. No. I think that--I think that if you are going 
to notify people what the law is----
    Mr. DesJarlais. So, it is fair----
    Mr. Martin. I think this should----
    Mr. DesJarlais. [Off mike.]
    Mr. Martin [continuing]. Because I think there is a law 
against discrimination there ought to be a poster on it. If you 
are entitled to worker's comp there ought to be a poster on it. 
If you are entitled to unemployment you ought to be a poster on 
it. And if you are entitled to organize a union there ought to 
be a poster.
    Mr. DesJarlais. And it ought to be slanted highly to one 
side.
    Mr. Martin. It is not slanted at all.
    Mr. DesJarlais. Oh, okay.
    Mr. Martin. It takes from the statute. In fact, it adds 
things that are not included in the statute to advise people 
that the union has the duty of fair representation.
    Mr. DesJarlais. Well, I am about out of time, so I have to 
yield back. But maybe somebody can answer that in further 
testimony.
    I yield back, Mr. Chairman.
    Chairman Kline. Gentleman yields back.
    Mr. Andrews, you are recognized.
    Mr. Andrews. Thank you, Mr. Chairman. I would like to yield 
to our ranking member.
    Mr. Miller. I just noted in the notice provision the first 
six things are the things that employees get fired for every 
day of the year, and it is illegal to fire them for those 
reasons. The next one says you can choose not to do any of 
these activities, including joining and remaining a member of 
the union. You can leave. You do not have to join.
    But the first two things, if you go up to an employer and 
say that you would like to form a union you can get fired. And 
they get fired every day for that. That is why it is posted 
that way so people understand. They do not get to fire you for 
exercising your rights that they have given to you under the 
law.
    Thank you.
    Mr. Andrews. There are 15 million unemployed Americans. 
Fifteen days ago the president of the United States came to the 
Congress, made a proposal to create jobs. We have not had a 
hearing. There has been a bill introduced by Mr. Larson. No 
hearing, no vote. We are arguing about what a poster says is 
going to be put up in people's workplaces.
    But let me ask Mr. King a couple questions. The premise of 
this hearing is that the NLRB is kind of running amuck, and is 
terribly biased against employers and in favor of unions. And 
you have highlighted the specialty health care case as one of 
the pieces of evidence in favor of that proposition.
    And when they were considering specialty health care, you 
and others filed an amicus brief that clearly made it--you did 
not want the board to address the issue at all because you felt 
it was outside the scope of the case, if I understand it 
correctly. But then you said, if the board--if despite your 
objections if the board does address those questions, you urge 
the board to refrain from abandoning the community of interest 
test that has guided employers and labor organizations for 
decades.
    The decision, I am reading the conclusion of the decision 
that the board in fact reached, says that ``we hold that the 
traditional community of interest test to which we adhere will 
apply.'' So, did not the board do what you asked them to do?
    Mr. King. It did on one hand, Mr. Andrews. But if you go to 
the end of the decision, and I am quoting, ``the board will 
find that the petition for a unit to be an appropriate unit 
despite a contention that employees in the unit could be placed 
in a larger unit, which would also be appropriate or even more 
appropriate----
    Mr. Andrews. Well----
    Mr. King [continuing]. ``Unless the parties so contending 
demonstrates that employees in a larger unit share an 
overwhelming community of interest----
    Mr. Andrews. That is so----
    Mr. King [continuing]. ``With those in petition for a 
unit.''
    Mr. Andrews. You think that what distinguishes your request 
from what the board decided is the importation of this 
overwhelming interest test. Is that right?
    Mr. King. Yes, Mr. Andrews.
    Mr. Andrews. I want to read from you a case from 2008 
before the United States Court of Appeals for the D.C. Circuit 
that is called the Blue Man Vegas case. I think it is cool just 
to say Blue Man Vegas, by the way, for those of you music fans.
    And I want to read from the majority opinion in that case. 
``A unit is truly inappropriate if, for example, there is no 
legitimate basis upon which to exclude certain employees from 
it.'' The case goes on to say, ``If, however, the excluded 
employees share an overwhelming community of interest with the 
included employees, then there is no legitimate basis upon 
which to exclude them from the bargaining unit.
    This case is from 2008. It addresses the question of the 
scope of the bargaining unit. It was written by the noted left 
wing judge, Judge Ginsburg, who was nominated by Ronald Regan 
for the United States Supreme Court. The nomination kind of 
went up in smoke as I recall.
    But why is Judge Ginsburg wrong? Why is he wrong?
    Mr. King. Judge Ginsburg is an excellent jurist, agreed. 
But what you really have to do is get into the footnotes. Mr. 
Andrews, as one of my law professors used to say, unless you 
read the footnotes, the same law school you went to----
    Mr. Andrews. The Cornell law students always read the 
footnotes. I have read them too. What are you----
    Mr. King. Well, unless you read the footnotes your children 
will starve. That was the message. You have to dig into the 
decision.
    Mr. Andrews. Right.
    Mr. King. The D.C. Circuit relies upon Trident Foods, and I 
have read the decision, but also Jewish Hospital Cincinnati. 
Well, the Trident Sea Foods case was a successorship case; does 
not have anything to do with overwhelming community of 
interest. The community of interest test, traditional test, was 
in fact applied there.
    Mr. Andrews. Well----
    Mr. King. And Jewish Hospital----
    Mr. Andrews. The thing, if I may because my time is running 
short, I read you the language from Judge Ginsburg. Now, you 
may disagree with his statement in that case, but a 
disagreement among two experts is not the same thing as some 
radical decision where someone has run amuck.
    So, the board adopted a standard that in 2008 Judge 
Ginsburg said was the definition of traditional community of 
interest test. I think they did what you asked them to. And if 
the board did what you asked them to, how is that an example, 
an example of a pro-union bias at the NLRB?
    Mr. King. We disagree. The board did not do what we asked 
it to do, just the opposite. And to the extent that Blue Man 
Group is being cited, it is being cited incorrectly.
    Mr. Andrews. Again, I just like saying Blue Man Group. But 
they did say traditional community of interest test is what 
they adopted. You may disagree with their interpretation, but 
it hardly sounds radical to me.
    Chairman Kline. The man's opportunity to keep saying it has 
expired. Thankfully.
    Mr. Gowdy, you are recognized.
    Mr. Gowdy. Thank you, Mr. Chairman.
    The NLRB is allegedly a neutral arbiter dedicated to an 
even-handed administration of the NLRA. And Mr. Chairman, 
unfortunately I have to use the word allegedly because it 
appears at least recently they have become acolytes, shills, if 
you will, for organized labor. And Boeing may be the most 
public example, but it is by no means the only example.
    You have a re-definition of bargaining units. You have 
bannering cases. And now you have posters. And the NLRB wants 
us to believe it is so people can understand the full panoply 
of their rights. In fact, they have the unmitigated temerity to 
suggest that it is only so people will understand their rights.
    So, Mr. Martin, let me ask you this. Do you believe 
employees have a constitutional right to travel?
    Mr. Martin. I think they do.
    Mr. Gowdy. Where is that in the poster? How about the right 
to bear arms? How about the right to counsel if they are 
charged with a criminal offense?
    Mr. Martin. Well, those matters----
    Mr. Gowdy. How about the right to----
    Mr. Martin. [Off mike.]
    Mr. Gowdy [continuing]. To punish----
    Mr. Martin [continuing]. Poster in this case that the board 
is addressing is directly related to how employees are to be 
treated in the workplace.
    Mr. Gowdy. What is their statutory authority----
    Mr. Martin. [Off mike.]
    Mr. Gowdy [continuing]. For mandating posters?
    Mr. Martin. It is consistent with the other posters that 
are posted in the----
    Mr. Gowdy. I am going to ask you again.
    Mr. Martin. [Off mike.]
    Mr. Gowdy. What is the statutory authority for mandating 
those posters?
    Mr. Martin. The----
    Mr. Gowdy. Cite me with the statutory authority.
    Mr. Martin. One of the things that the board is charged 
with is advising employees of their rights. This is one way to 
do it.
    And I would also say to you, Congressman, we get calls----
    Mr. Gowdy. I am listening for a cite, Mr. Martin. I am 
listening for a statutory cite to support the authority of the 
NLRB to mandate posters.
    Mr. Martin. It is--the board is charged with responsibility 
for administering the act, and that is within their sound 
discretion.
    Mr. King. If I may, Mr. Congressman, there is no 
statutory----
    Mr. Gowdy. Well, I--see you answered it in a couple 
seconds, and I knew that that was the answer.
    Mr. King, it strikes me that this has nothing to do with an 
administration of rights. I want to read to you a quote by 
someone by the name of Stewart Acuff who is with the Utility 
Workers Union of America. ``If we are not able to pass the 
Employee Free Choice Act, we will work with President Obama, 
Vice President Biden and their appointees to the National Labor 
Relations Board to change the rules governing forming of a 
union through administrative action.''
    And it just strikes most reasonable people that what they 
cannot do through the ballot box, and what they, heavens knows 
cannot get through Congress, even with a Democrat controlled 
House, Senate and White House, they are now seeking to do 
through administrative rule. That is just the way it looks. Am 
I looking at it wrong?
    Mr. King. That is the way it has looked for a period of 
time. The return on investment for the substantial 
contributions made to the other party did not result in 
legislative relief. So, the relief is now from organized 
labor's perspective through the regulatory community.
    The United States Department of Labor is even perhaps more 
of an activist group than the National Relations Board. We are 
now being told that perhaps the so-called persuader area, we 
cannot even advise a client on attorney-client matter without 
having to disclose same. It is a full, regulatory full-court 
press.
    Mr. Martin. Those are talking points. Those are not the 
board's decisions.
    Mr. Gowdy. Mr. Martin, twice now you have attempted to 
assuage our fears of an activist NLRB by citing that we can 
always go to the federal courts of appeals to correct their 
errors. That analysis would not work very well with the issue 
of say prosecutorial misconduct, would it?
    I mean you would not advocate--let us just excuse 
prosecutorial misconduct because we have a court of appeals 
that can fix it, or jury tampering because we have a court of 
appeals that can fix it. Or discovery abuse because we have a 
court of appeals that can fix it. Did I understand you wrong 
when you said----
    Mr. Martin. No. I would suggest----
    Mr. Gowdy [continuing]. We have a court of appeals----
    Mr. Martin. I would suggest--what I would say was to the 
extent that there is a complaint, that you make this sweeping 
complaint that the board is acting as--is in the pocket of 
organized labor, you would have to test that. You could test 
that----
    Mr. Gowdy. Can you name one reason----
    Mr. Martin [continuing]. Court of appeals. And I think what 
you would find when you get there is you will get told the same 
thing I get told when I go up there and complain about 
something----
    Mr. Gowdy. I have got just a little bit of time, Mr. 
Martin. Can you name me a reason not to join a union.
    Mr. Martin. It will be up to you.
    Mr. Gowdy. No. Can you name me a reason? I mean 94 percent 
of the American people choose not to. Can you name me a reason 
not to join a union?
    Mr. Martin. I am not going to bother with that.
    Mr. Gowdy. You cannot name a single reason not to join a 
union.
    Mr. Martin. I would think in almost every case employees 
would be better off represented and working together regarding 
their wages, hours and working conditions.
    Mr. Gowdy. So, the answer is no.
    Mr. Martin. I think that that would be the best way to----
    Mr. Gowdy. You cannot name a single reason----
    Mr. Martin. Just like I--just like I would not want to 
represent myself in court. I think it would be--you know 
workers are better off represented by a union.
    Chairman Kline. The gentleman's time has expired.
    Mr. Tierney? Mr. Holt?
    Mr. Holt. Thank you, Mr. Chairman.
    Just to pursue this latest point a little bit more, Mr. 
Martin, you know the--let me read from, well it is Section 156 
here of the annotated law here. ``The board shall have 
authority from time-to-time to make, remand and rescind in a 
matter subscribed by subchapter 2 such rules and regulations as 
may be necessary to carryout the provisions of the 
subchapter.''
    So, it is true that, for example, on wages and hours there 
is not statutory language that says you must post notices. But 
there are regulations going back many decades to say that your 
wages and hours, regulations--the regulation says that wages 
and hours notice must be posted. Is this different?
    Mr. Martin. No, it is not. No, it is not. It is within the 
same agency authority.
    Mr. Holt. Okay.
    Ms. Ivey, I certainly want you to have your rights. I mean, 
that is kind of what this whole thing is about, what are 
workers' rights? You state that the NLRB Gasket--Lamons Gasket 
decision took away your rights to a secret ballot. Do you not 
have a right to file a decertification petition at some point?
    Ms. Ivey. I understand there may be an opportunity, maybe 
in a year. There may be up to 4 years if there cannot be a 
bargaining agreement. That could happen, but I do not see a 
real----
    Mr. Holt. Well, not could. It must. I mean, you have got 
that right as I understand it.
    Mr. Martin, is not that correct?
    Mr. Martin. Yes. And I would also say, you know one of the 
things Ms. Ivey has suggested is that there were 
misrepresentations made when the employees signed the cards. 
And frankly, if that is the case, if the SEIU, and I represent 
the SEIU, but if they made affirmative misrepresentations and 
tricked people into signing those cards, you can file an unfair 
labor practice charge and get the recognition set aside.
    So, you know there is still a way to proceed. I mean, you 
have the ample counsel here who could probably, you know, help 
you out at the end of the hearing. But, as a practical matter 
if that were the case you would have a remedy in that case, 
which the board would----
    Mr. Holt. Thank you.
    I am sure we could find people who could help you----
    Ms. Ivey. Right----
    Mr. Holt [continuing]. File that unfair labor practices----
    Ms. Ivey. And I appreciate all that, and I know there are--
down the road----
    Mr. Holt [continuing]. If that is necessary.
    Ms. Ivey [continuing]. There may be. But I tried to go 
farther than----
    Mr. Holt. Let me change the subject in my limited time 
here. Of course the whole issue is whether there is union 
favoritism. That is the title of today's thing. And several 
people have said that the specialty health care community of 
interest statement is radical and it needs to be addressed 
legislatively.
    I would actually be quite concerned if we were asked to 
define you know whether physical therapists were in a community 
of interest with advanced practice nurses or something. I do 
not think that is the sort of thing that we should be 
legislating.
    So, let me ask Mr. King, you were one of the people who 
mentioned this. I mean, what specifically would you ask us to 
do legislatively that we could do better than the NLRB could do 
in determining what is an acceptable community of interest?
    I must say, I side with Mr. Andrews in saying that the 
board in this--in specialty health care did not do anything 
radical. They did something that Ginsburg and others had laid 
out as a pretty standard way of defining a community of 
interest.
    Mr. King. Mr. Holt, we certainly will agree to disagree, as 
I did with Mr. Andrews. But your specific question, I would ask 
that this committee, the Congress consider amending the Act to 
put in sufficiently distinct language in the statute to codify 
what the case law has been over the years, including Blue Man 
Group because the case is cited Blue Man Group do use 
sufficiently distinct. So, that is one suggestion.
    Mr. Holt. Surely you do not want us to have a list of 
thousands of categories that we will define these are 
communities of interest?
    Mr. King. No, absolutely not, Mr. Holt. I think it is 
unfortunate in one regard that the committee has to spend the 
time to look at a federal agency like we are doing today. But 
unfortunately events have required that, at least from my 
perspective.
    The second answer to your question is I would also have the 
Congress codify no proliferation. I was involved back in 1974 
when I was working on the Senate side as a counsel in the 
health care amendments. We attempted to get into the statute at 
that time a no proliferation standard for health care.
    Unfortunately, the votes were not there to do that. We came 
close. We got very good committee language from both the House 
and the Senate. And there was bipartisan support for that no 
proliferation committee language. But it did not get into the 
statute. And I would suggest, to be specific in response to 
your question, the no proliferation language also be put in the 
statute.
    Finally, I absolutely agree with you that the Congress 
should not try to legislate whether cooks, whether housekeepers 
or others constituted an appropriate unit. That is for the 
expertise of whatever agency will continue to adjudicate those 
matters. You are correct in that.
    But, the statute does need to be reexamined.
    Chairman Kline. The gentleman's time----
    Mr. Holt. But this is a hearing on union favoritism. It 
seems to me you are proposing something that is quite the 
opposite of that.
    Mr. King. I was just responding to your question.
    Chairman Kline. The gentleman's time has expired.
    Dr. Bucshon?
    Mr. Bucshon. Thank you, Mr. Chairman.
    I just want to agree with some other comments that the 
administration could not push through card check and other 
anti-worker legislation through the 111th Congress. And now 
they are trying to institute these policies through the NLRB 
and other agencies.
    And with that, I would like to yield the balance of my time 
to Mr. Wilson from South Carolina.
    Mr. Wilson. Thank you very much. [Laughter.] [Off mike.]
    Both parties, we work to improve this. In fact, I started 
as a--back in 1973. In 1975 I was moved into the State 
Development Board, in South Carolina as a member of the state 
Senate--the BMW.
    We are very proud that every X5, X6, Z3, Z4 in the world is 
made in South Carolina. And there has been no downturn, even as 
the American automobile industry had crisis.
    We have seen thousands of jobs created. And in Congress I 
work every day, and as I did in the state Senate to recruit 
industry. I worked with the Crane Corporation to double on jobs 
in a small, rural community in Williston, South Carolina, 
creating jobs for people.
    But then in April we--I have worked on this, again, all my 
life. But it never occurred to me that the NLRB would come in 
and attack Boeing. It is--I was there for the groundbreaking. 
The building is built, 1.1 million square feet. Eleven hundred 
people are employed today.
    There has been no loss thanks to the inquiry by Congressman 
Gowdy, been no loss of jobs in Washington State. But still, 
they are proceeding, the NLRB, to put at risk 1,100 families in 
our state, and in fact suppliers all over the state, including 
the district I represent.
    Sadly, the message is really clear. Do not locate in a 
union state because if you locate in a union state, you cannot 
leave. In fact, you must locate in a right to work state. That 
is the unintended overreach of NLRB, and it is really the roach 
motel. If you locate in a union state, you cannot leave.
    And so, with that in mind, Ms. Ivey, thank you for your 
courage to be here today. As someone who works every day to 
make a living, do you feel the NLRB is looking out for the best 
interest of America's workers?
    Ms. Ivey. Not at this time from what I have observed.
    Mr. Wilson. And you gave excellent testimony factually on 
how it affected you and the people that you work with.
    Additionally, Ms. Ivey, do you have any concerns about your 
employer providing your phone number and email address to the 
union?
    Ms. Ivey. I was not aware if that happened or did not 
happen. I know during the petition both sides did. So, I feel 
as long as if we are going to be offered an opportunity to the 
union I would imagine both sides would be able to do it. Either 
both sides or no sides.
    Mr. King. If I may congressman under the proposed election 
rules of the board it appears that personal email addresses, 
personal phone number information would be required. Now, the 
board has not been clear on that, but that has been suggested.
    Mr. Wilson. And Mr. King, back again. In regard--has this 
occurred before, where a plant is built, people employed and 
the NLRB comes in and announces that it cannot operate?
    Mr. King. Not to my knowledge under these facts. You are 
absolutely correct. It is my understanding no jobs were lost in 
Puget Sound area. No jobs were transferred to South Carolina. 
The parties bargained. Boeing sat down and tried to bargain 
with the union here. There was no movement of equipment.
    There was--it is not a runaway shop. I have seen that 
mentioned. That is not the situation at all; Boeing, for good, 
legitimate, non-discriminatory reasons, as I understand the 
facts, simply decided to have an alternative site to build 
aerospace equipment.
    Mr. Martin. There are cases where the board has ordered 
factories to return where they were moved illegally.
    Mr. Wilson. And I would like to point out that in the--as 
we were reaching efforts to recruit them, it is a second line 
to build 787s. That was always the understanding. Not a 
diversion. Thank you very much.
    Chairman Kline. The gentleman's time has expired.
    Mr. Kildee, you are recognized.
    Mr. Kildee. Thank you, Mr. Chairman.
    I was 7 years old when the Sit-Down Strike took place in 
Flint, Michigan, which is part of our history here. Foster Rhea 
Dulles, brother John Foster Dulles calls that strike in Flint, 
Michigan the Lexington of the organization of the CIO. And I 
can recall when the strike began, and I can recall when the 
strike ended in February 11, 1937.
    And it is interesting. They reached a contract. And that is 
the contract, one-page contract. And they recognized all the 
members of the union, guaranteed they would not be in any way 
punished; gave a delineation of some of their rights to 
bargain. And it was a very historic thing.
    But it was done on one sheet of paper, signed by some 
famous names in history, William Knudson who was the president 
of General Motors, who my dad knew very well; and John L. 
Lewis, the president of the CIO, who my dad knew very well.
    As a matter of fact, I am grateful for two groups in Flint, 
Michigan for my life. I am grateful to General Motors for 
having supplied the capital to enable them to produce the 
millions of cars which they produced. And I am grateful to the 
UAW. I just talked to one of the president of the old Buick 
local this morning driving into work.
    I am grateful because they re-secured justice for us. But 
it was a one-page. It was very, very important. And as they 
say, it is the Lexington of the organization of the CIO.
    Unions really help build a middle class in this society. My 
dad could never have gotten to send me to college were it not 
for the UAW. No.
    I am grateful also to General Motors for having the wisdom 
to build great cars and build those plants in Flint, Michigan. 
But, what I have seen recently, I have been in Congress now 36 
years. And the power of unions in general have lessened in 
those years. And the purchasing power of the working people 
have lessened in that year.
    How else some modest changes by the NLRB now want more 
workers to organize in an expeditious and efficient manner so 
we can give that rightful power to the unions to bargain and 
let them again increase their purchasing power and get this 
economy going. What changes by the NLRB would help expedite 
that?
    Mr. Martin. Well, I think, I mean it is a tragedy that one 
of the efforts that has helped drive the middle class over the 
years is now being demonized, and that is organized labor and 
the labor board. But I will say that you know, a reasonable--
the board's rules that they have proposed regarding elections 
streamlines that process. And it moves the litigation to the 
back of the process.
    You know, one of the things that happens is, is under the 
board's current election procedures there is the opportunity to 
litigate before the election, which delays the election. And 
there is the opportunity to litigate after the election.
    If the litigation takes place after the election, it simply 
moves the process along in a more orderly and less expensive 
fashion. And if the union loses, the whole thing is mute and 
there is no need to litigate it anyway. So, it has certain 
practical aspects. And so I think that that would be a 
positive.
    Mr. King. If I may, Congressman, I do want to make sure, at 
least from my perspective I am clear. I am not here to suggest, 
nor would any responsible employer I think be here to suggest 
that we ought to do away with collective bargaining. That is a 
fabric built into this nation, and how workers and employers 
come together. And where appropriate, collective bargaining has 
worked quite well.
    There are problems with the current board, but certainly 
collective bargaining is something that we ought to hold near 
and dear to the hearts of all of us in this country. The 
question is, how do we regulate the workplace as we go forward?
    Mr. Mack. And I agree with Mr. King on that.
    Chairman Kline. The gentleman's time has expired.
    Mr. Hanna, you are recognized.
    Mr. Hanna. Thank you, Chairman.
    Mr. Martin, I personally have been in a union for many 
years; 25 actually. And I take exception, great exception to 
what your implications that there is anyone here on either side 
of the aisle that in any way denigrates or undervalues the 
value of unions over time, particularly as a union member. I 
have not heard that in any way.
    Mr. Martin. Well, maybe I misunderstood some of the----
    Mr. Hanna. Well, what I do think, though is that there is 
an effort on our part to create a fair and balanced approach to 
the regulations, and that unions in many ways over time are now 
begun to try to do through legislation and regulation what on a 
marginal way they failed to be able to do through the power of 
their argument.
    With that, I would like to yield the balance of my time to 
Mr. Gowdy.
    Mr. Martin. Well, if I may, you know--but that is--you know 
what, I would argue that that is not actually reflected by the 
decisions. Again, the decisions are a return to traditional 
approaches that were used by both Republicans and Democrats.
    Mr. Hanna. Well, I would suggest to you there is nothing 
more traditional than a secret ballot.
    Mr. Martin. The voluntary recognition has always been an 
option to the parties. If the union has to demonstrate a 
majority, freely made, and it is an option available to the 
employer to agree. Then that is sanctioned by the Supreme 
Court.
    Mr. Gowdy. I thank Mr. Hanna.
    Mr. Mack?
    Mr. Mack. Yes, sir?
    Mr. Gowdy. The NLRB poster states that under the National 
Labor Relations Act it is illegal for your employer to prohibit 
you from wearing union hats, buttons, tee shirts and pins in 
the workplace, except under special circumstances. The posters 
I have seen do not define special circumstances. Can you help 
us understand what that very vague language might mean?
    Mr. Mack. And that is one of the problems with the notice 
posting because there are circumstances, locations, the acute 
health care area, area on store floors where folks are selling 
goods employees cannot be soliciting, distributing literature 
for the union. This poster is so vague that employees have no 
idea what their rights and responsibilities are. And that is 
going to lead to an awful lot of disciplinary action and 
matters before the NLRB.
    Mr. Gowdy. Or it may just lead to wallpaper. We may just 
have another poster that explains what the special 
circumstances are and then another poster after that. And 
pretty soon it is just union wallpaper.
    Mr. King. If I may, Congressman, and you certainly touched 
upon the language of the poster. But my answer to the question 
a few moments ago is, is this statutorily authorized? I think 
that is questionable. But the real issue is, if you do not put 
the poster up----
    Mr. Gowdy. [Off mike.]
    Mr. King [continuing]. The employer--well, that is one 
issue. The employer is a, guilty of an unfair labor practice 
charge; b, the statute of limitations is tolled, or may be 
according to what the board says; and third, the employer is 
somehow deemed to be anti-union and have union animus. That is 
where I think we really get into some statutory issues.
    I understand the broad baseline in the statute. We all do 
them, regulations issuing there under. But you have to really 
drill into this. So, not only do you have an issue of whether 
the poster language is balanced, and I think we could go back 
and forth on that for a long period of time. And by the way, 
this whole poster and these regulations come at a time when the 
president keeps saying we should have less regulation in 
workplace.
    Mr. Gowdy. Right. It is----
    Mr. Martin. I would say--it is ironic in that way.
    Mr. Gowdy. Hang on, Mr. Martin. I will come to you. I want 
to ask Mr. King another question.
    Cass Sunstein, who is the regulatory czar wrote a piece 
analyzing Justice Alito's dissents in an effort to determine 
whether Justice Alito had any bias or not before he went on the 
Supreme Court. Have you had an occasion to analyze NLRB member 
Hayes' dissents to see whether or not they have increased in 
frequency or what can be learned? Are these all unanimous 
decisions? Or have we had some notable dissents?
    Mr. King. First, Congressman, we have had no major decision 
issued from this NLRB with unanimity. I read Mr. Martin's 
paper. I think it is very well done. I commend him for putting 
the paper together as he did. But it glosses over what has 
actually happened at the board.
    Not one major decision has issued with unanimity. In fact, 
I looked at this last night with the help of my associates. Mr. 
Hayes, Member Hayes has dissented in 59 cases. I have read 
every one--excuse me. I have not read every one of those 
dissents. I read most of the dissents, and they are quite well 
written, I believe. But they are quite, quite biting, and they 
are quite critical frankly to the majority.
    We do not have any unanimity on this board, unfortunately, 
not close to it. And there has not been any type of bipartisan 
approach there like other boards, Democrats and Republican, 
unfortunately, to move forward.
    Mr. Gowdy. There is a lot of five-person board----
    Mr. Martin. Most decisions have been unanimous.
    Mr. Gowdy How many vacancies are there, Mr. King? That will 
be my last question. Is a five-person board?
    Mr. King. Yes, sir.
    Mr. Gowdy. How many vacancies are there?
    Mr. King. There are now one, two; two vacancies.
    Mr. Gowdy. And how many recess appointees?
    Mr. King. One.
    Mr. Gowdy. Thank you.
    Chairman Kline. The gentleman's time is expired.
    Ms. Woolsey?
    Ms. Woolsey. Thank you, Mr. Chairman.
    I am really getting antsy sitting here talking about a 
poster and hearing from three over one witnesses that clearly, 
clearly do not agree that organized labor and unions deserve 
any kind of protection when we have a 9 percent unemployment 
rate in the United States of America. And we should be talking 
about jobs that our ranking member sent a letter, I know, to 
the committee asking that we have hearings on jobs.
    Right here, this is what this panel should be doing; not 
talking about--regurgitating every reason why people do not 
want labor unions to be strong. And when are we going to have 
this jobs hearing? That is my question. So, let us do it. Let 
us not just pretend like this committee does not have--the 
Education and Labor Committee--Workforce--Labor, no Workforce; 
you took Labor out of there--Committee does not have 
jurisdiction over part of the jobs bill. We need to have that 
hearing sooner rather than later.
    So, my question now is to Mr. Martin. First of all, if we 
had a poster that listed everything that is not covered through 
the NLRB it would probably be wallpaper, right?
    Mr. Martin. I agree with Mr. Gowdy on that.
    Ms. Woolsey. Yes. We do not do that. We do not list 
everything that is not, we list what is protected.
    Mr. Martin. And I would also point out, if I may, 
Congresswoman, the board has said if people overlook, you know 
if they just overlook the fact that they should have posted and 
do not post it. The board is basically going to give them a 
Mulligan on that and say put it up and it is good to go. So, 
anyway.
    Ms. Woolsey. Yes. Well, so how many--let us go to the 
reality of the whole thing. Since somebody pointed out that 
over 90 percent of employers are not covered by labor unions, 
how many of those 90 percent of those employers actually have 
new employee orientations and employee handbooks that say you 
have a right to unionize?
    Mr. Martin. I have not seen one.
    Ms. Woolsey. I have not seen one. No.
    Mr. Martin. I have not seen one.
    Ms. Woolsey. I mean, that is where that would be to make it 
balanced. Hello, employees. We are a non-union facility, but 
you have every right to unionize.
    So, now if an employee goes to the shop floor, if there are 
any shops anymore in this country, and wears a tee shirt that 
says, I am pro-union or if--or a button or a hat, is that 
protectable?
    Mr. Martin. That is protected. If the employer is not aware 
that that is protected they might discipline them for it.
    Ms. Woolsey. Well, I mean can they legally discipline for 
it?
    Mr. Martin. No.
    Ms. Woolsey. No. All right. But just what is the risk, that 
you know of, for----
    Mr. Martin. I will tell you, as a practical matter we 
routinely get calls from employees in non-union workplaces who 
complain to their employer about--you know, about overtime, 
about not being allowed to share in profit sharing and get 
disciplined for that. The file a charge, the HR person is duly 
embarrassed. They get a lawyer. They fix it.
    It is--you know the--most employers do not discriminate, 
but we still put posters up notifying people not to 
discriminate. Most employers have good, safe workplaces. They 
still have to notify people about.
    Ms. Woolsey. Yes. So, since employers have unfettered 
access to their employees at all times during the workday, and 
they can express their views because they are the employer, how 
much do these rules change that?
    Mr. Martin. I think it just simply--I do not think it 
changes the balance at all. The employer is still the dominant 
operator in the workplace. The employees serve at their will 
and--and can be compelled to listen to their viewpoints.
    Ms. Woolsey. So, these proposed election rules do or do not 
take away the employer's voice.
    Mr. Martin. Of course they do not.
    Ms. Woolsey. And where does the employee's voice come in?
    Mr. Martin. Well, the employee's voice is limited. They--
the employees may talk amongst themselves on break time----
    Ms. Woolsey. Whispering.
    Mr. Martin. Whisper. And the union can try and contact them 
at home. But they certainly--you know when the employer calls a 
captive audience meeting where everybody is required to appear 
under penalty of discipline, the union does not have a voice in 
that. And the employees, frankly, in most cases know better 
than to make a noise in that that is not acceptable to the 
employer.
    Ms. Woolsey. Not very American.
    Chairman Kline. The gentlelady's time has expired.
    Dr. Roe?
    Mr. Roe. Thank you, Chairman, for yielding. And I will 
agree with people on both sides of the aisle. With 14 million 
people out of work, jobs are the most important issue that we 
have in this country today, hands down. No doubt about it.
    I have sat here and listened now for going on 2 hours, and 
I do not think that any of this encourages me as an employer to 
hire anybody. When I sit and listen to all of this, this does 
not encourage me to go out. And what will encourage me to 
create a job is a demand for the goods or services that I 
produce.
    As a physician, if I am going to work on Monday and I have 
got an empty schedule on Friday, I am not going to hire 
anybody. It is that simple. If I am booked up for 4 months and 
I--then I am going to hire a new doctor to help me get that 
backload of patients taken care of. It is no more complicated 
than that.
    All of this discussion right here would discourage me as an 
employer from hiring anybody. It is complicated enough. And Mr. 
Martin clearly pointed out that our bulletin board at home, you 
cannot even read it there are so many thumbtacks in there with 
I think irrelevant things there.
    I want to ask Mr. King, why do you think that private union 
membership is dropping in this country? Why is that?
    Mr. King. Foreign competition; jobs going overseas. We look 
at the Boeing situation, that is one of the few employers in 
this country that exports goods. But that is not the case in 
many other industries.
    We have over-regulation. Per your point, these new election 
rules, Dr. Roe, I just looked at the stats here. These new 
proposed expedited election rules, they modify over 100 
sections and subsections of the current board regulations, 
include changes that span over 35, three-column pages of the 
federal register.
    What small employer is going to be able to figure that out? 
And there are many other issues why the union membership in 
this country has dropped. We do not have time to go into them. 
But it is unfortunate for the whole economy that we have to 
have this absolute back and forth sparring. We need to have a 
federal agency that is fair and unbiased so businesses can do 
what they do best, create jobs and move this country forward.
    Mr. Roe. Well in that day National Labor Relations Act 1935 
and it was passed, and it was passed for a good reason. I grew 
up in a union household. My father lost his job overseas in 
1974 when I was in the military.
    And I think, Mr. Mack, I want to ask, you have a tremendous 
amount of expertise in the NLRB. And with your experience 
there, what is your opinion of the board's Boeing decision? I 
mean, I have looked at that, and I have driven to Charleston, 
South Carolina for a reason. I do not live--6-hour drive from 
there. I wanted to see that building.
    They have built a huge building there with 1,100 people 
with good jobs. And the NLRB is saying, drop that capital 
investment, take it back to Washington where no one has lost 
their job. What kind of a ruling?
    Nobody with any common sense can understand that at all. I 
mean, I try to explain it to people and I cannot. I would just 
like to hear your opinion.
    Mr. Mack. Thanks, Congressman.
    Being a lawyer, I have not studied the Boeing case. We do 
not represent Boeing in this particular case. But I can share 
with you, it is going to be a--NLRB has before it a lot of 
remedies and a lot of approaches. It can deal with this issue 
without requiring Boeing to move its operation back to Seattle.
    It would seem to me that asking a company to shutdown a 
multimillion or billion dollar facility and taking 1,100, 1,200 
employees out of employment, that would be something that the 
board would come at with great reservation, and should not go 
after that lightly. There are a lot of other ways that the 
NLRB, assuming--and I do not know that there has been a 
violation. But assuming for the moment that there has been a 
violation, there are a lot of other remedies or weapons at the 
disposal of the NLRB rather than close shop and go back to 
Boeing. That is an awful decision.
    Mr. Roe. I agree with you 100 percent. Let me make this----
    Mr. Martin. Can I comment on the Boeing----
    Mr. Roe. No. I want to make one statement because my time 
is almost up.
    I left this country in 1973, put on a uniform and served in 
a foreign country in U.S.--Second United States Infantry 
Division, as many people have done here. That is done so that 
we will have a secret ballot and a right to a secret ballot.
    I was elected by a secret ballot. The president of the 
United States was elected by a secret ballot. The union 
leadership is elected by a secret ballot. Every employee--we 
have 200 years of history in this country.
    I think it is the most important thing we have so that you 
cannot intimidate anybody, either the employer or the employee, 
which is what I thought the NLRB was supposed to be, an 
impartial arbiter so as to allow people to make those choices 
freely. And a secret ballot does that.
    And I am going to have to face a secret ballot next year. 
And that is the way it should be. I do not know how my wife 
voted. She said she voted for me, but I do not know that for 
sure. And that is the way it ought to be.
    Chairman Kline. The gentleman's time has expired.
    Mr. Roe. I yield back.
    Chairman Kline. Mr. Kucinich?
    Mr. Kucinich. Thank you very much, Mr. Chairman.
    I have been involved in several hearings dealing with the 
NLRB. And what occurs to me is that in being very familiar with 
the case of the workers at Boeing, the question really is going 
to be whether or not the workers at Boeing are going to have 
any right to recourse under the National Labor Relations Act.
    Now, whether you are from Washington State, South Carolina 
or Ohio, where I am from, the question is going to arise, will 
the workers in South Carolina have less protection than workers 
in Washington State? And will workers all over America have 
less protection as a result of the National Labor Relations Act 
effectively being vitiated by our friends in the majority. This 
is a serious question about workers' rights.
    Now, one of the witnesses talked about--did his analysis 
about why union membership dropped. Let me offer mine. Passage 
of NAFTA; passage of the General Agreement on Tariffs and 
Trade; emergence of the World Trade Organization; the passage 
of China trade; we lost millions of manufacturing jobs in trade 
agreements that were aimed at a race to the bottom.
    We saw the best trained workforce. But frankly, a lot of 
our corporations, they are not committed to the red, white and 
blue. Their only color is green. You know, we take a pledge of 
allegiance at the beginning of our congress. Corporations do 
not take that pledge. They do not have any allegiance to the 
United States of America; their allegiance to their bottom 
line. Fine, but do not come here and give us lectures about the 
imperative of protecting workers' rights.
    So, our workers here do not have--are not put on the same 
level as workers in China, let us say, which is a Communist 
country. Last I checked, we are still a democracy.
    According to the statistics from the Organization for 
Economic Cooperation and Development, American workers today 
are more vulnerable to being fired without cause, more 
vulnerable to not getting severance, more vulnerable to being 
part of a mass layoff with little notice than any worker in one 
of the 14 other member countries of the OECD. The other 14 
member countries are Western democracies comparable to the 
United States, nations we consider to be our peers; countries 
like the U.K., Australia, Ireland, Canada, France, Germany. 
What a situation for America to be in.
    You know this whole idea about the National Labor Relations 
Board too powerful, it favors unions. Human Rights Watch report 
from 2000 warned that American companies have little incentive 
to respect workers' rights in the face of weak remedies called 
for by the National Labor Relations Act. According to the Human 
Rights Watch, the remedies, which this Congress voted to weaken 
last week are so meager that American workers are treated by 
employers as a minor cost of doing business. This is over 10 
years ago.
    I believe that given the fact that we have so many 
Americans who are unemployed or underemployed will corporations 
sit on record amounts of cash. Things are even worse today for 
workers in America.
    Now, in the time that I have left, I have a question for 
Mr. Mack regarding the notice posting rule. The U.S. Chamber of 
Commerce and others have sued to block the NLRB's rule that 
requires employers to post a notice of workers' rights under 
the NLRA. One of their contentions is that requiring a posting 
of this notice of employee rights violates employers' first 
amendment rights.
    So, does the requirement that employers post a notice 
advising employers--employees of the current minimum wage or 
the employee's right to file a complaint under employment 
discrimination laws or a report of violation to OSIA also 
violate employers' first amendment rights. Mr. Mack?
    Mr. Mack. Your question--here is the question you are 
asking. Does it violate the employer's first amendment right to 
post a notice? There are two questions to that.
    First, does the NLRB have the authority to do that? And I 
think that answer is no. We have operated under the NLRB for 75 
years without such obligation. When you look at your statue, 
there is nothing in the NLRA which gives the board that 
authority.
    You look at some of these other statutes, the ADEA and some 
others, this Congress included a provision that the agency can 
require the employer to post notice. NLRB has no such----
    Mr. Kucinich. Can you explain what is different about 
posting a notice regarding the National Labor Relations Act 
when compared with OSIA or the Fair Labor Standards Act?
    Mr. Mack. Two things, sir. One, the agency does not have 
the authority to do it. Congress gave them the authority to do 
it in some of the others.
    And number two, the language in the notice that the board 
is requiring to post goes beyond the board authority. The 
Congress says in the National Labor Relations Act, you must 
file an unfair labor practice, charge them 180 days after the 
event. The NLRB says if you do not post a notice, your time--
statute of limitations does not run. There is nothing that 
gives the board that authority.
    The NLRA is entirely different from the----
    Chairman Kline. The gentleman's time has expired.
    Mr. Mack. Thank you.
    Chairman Kline. Mrs. Roby?
    Mrs. Roby. Thank you, Mr. Chairman.
    Thank you to all of you for your testimony this morning.
    Mr. King, in your experience, what kind of information does 
the union--excuse me--provide to the employee?
    Mr. King. There is--Mrs. Roby, it can be anything from very 
scant information regarding dues, regarding constitution and 
bylaws, which are all very important legal governing documents; 
too often very strident campaign material. And employees, 
frankly--and I know we can debate back and forth whether the 
employer said something wrong or the union said something 
wrong.
    But employees frankly have a difficult time discerning what 
really is fact and what is fiction. And what is really a 
problem with these new proposed election rules, they diminish 
time significantly for employees. Put aside unions and 
employers' interests. The new rules would diminish 
significantly the time for employees to figure it out for 
themselves. And that is what we really ought to be here about, 
I think; making sure employees have rights.
    Mr. Martin. I----
    Mrs. Roby. Right. So--and excuse me. So, in determining the 
accuracy of the information provided to employee--the 
employer--excuse me. The employee by the union, what recourse 
do the employees have if they are provided with inaccurate 
information?
    Mr. King. Very little. Frankly, the NLRB standards are such 
that the union, and to a certain extent the employer can engage 
in considerable puffery during the campaign process. And once 
that election is concluded, there is very little that can be 
done.
    Mrs. Roby. No recourse.
    Mr. King. Now, I understand, and pardon me for just a 
moment. I understand Mr. Martin's point. You can always 
decertify. Well, yes, that is true in the statute, but that is 
exceptionally difficult. That requires employees to obtain 
legal counsel, expert advice, go through a process of getting 
at least 30 percent of the bargaining unit to agree. It is 
exceedingly difficult to do.
    Mrs. Roby. Well, that goes to a point made by my colleague, 
Mr. Gowdy earlier. What are the restrictions on union and 
employer speech during the representation election drive? What 
are the restrictions?
    Mr. King. Not a great--not a great deal, frankly. The board 
in recent decisions, we probably would agree, Mr. Martin, on 
some of these decisions. The board has permitted considerable 
leaway for the parties to engage in court election campaigning. 
Again, it is back to employees. How do they figure it out? How 
do they really determine what is in their best interest? And 
that is very difficult.
    Mrs. Roby. Right. And my first question had to do with the 
employee determining about accurate or inaccurate and what 
recourse they have. Let us just state for the record, what 
recourse does the employer have once they find out, again going 
through that legal process?
    Mr. King. Not a great deal. There is a very recent decision 
by this board wherein a union had posted in campaign material 
pictures of voters, prospective voters, people in the voter 
unit giving the impression that each one of those employees 
whose picture had appeared on that union campaign piece was in 
fact supporting the union. Some employees came forward and said 
that is not what I said you could use or how you could use my 
picture. But yet the board said that was Okay.
    So, the employer is limited to a great extent what it can 
do to try to overturn an election. Pursuing election objections 
are difficult. Under the new proposed election rules it is 
going to be even more difficult.
    Mrs. Roby. Right.
    Mr. Martin. This board has sanctioned----
    Mrs. Roby. Excuse me, Mr. Martin. I have a very limited 
time.
    And I want to talk to Ms. Ivey because we have not had a 
lot of time with you. And I appreciated your courage to be here 
and your willingness to be very frank with this body about your 
experience. And I really just want to give you an opportunity.
    I understand your frustration in being denied the 
opportunity to participate in the election because the employer 
voluntarily recognized the union. And so now your opportunity 
under the Lamons Gasket ruling, you do not have that right to 
vote.
    I want you to tell all of us in here why it is so important 
for you to have the opportunity to participate in that 
election.
    Ms. Ivey. Well, because we live in the United States, and I 
have always, as I stated earlier, believed that a vote is truly 
an election, a card check. And I am not saying, as Mr. Martin 
said, that there is a lot of misinformation, whether 
intentional, not intentional. But a vote at the end of the day 
says, yes, I want to be a member of the union; no, I do not.
    I work with other people in other departments that are in a 
union. I do not have anything per se against the union. I just 
choose--I want a choice to say no, I do not want to be in a 
union, as did 45 percent of the people when I just asked them, 
did you really feel you had a--this was a vote? Did you have a 
voice, because even if I had a card, if I do not turn it in I 
do not have a voice.
    But if I turn it in, my voice is yes. I want an opportunity 
for everybody to say yes or no when you vote for an elected 
official. You do not say--or a ballot. You know, you have a 
choice, yes or no.
    Mrs. Roby. Thank you so much. I really appreciate it, 
again, for your courage to be here.
    Thank you, Mr. Chairman. My time is expired.
    Chairman Kline. I thank the gentlelady.
    Mr. Altmire?
    Mr. Altmire. Thank you, Mr. Chairman.
    Mr. King, I am trying to get a handle on exactly what the 
issue is that we are discussing here. Are we talking about the 
legal ability of the NLRB to carryout actions which you and 
many members of the business community clearly disagree with, 
but they are within the scope of the current law? Or are you 
making the case, and Mr. Mack and others also that they are 
outside of the law in some of the decisions that they have 
made? Did they have the legal ability to carryout these 
decisions, even though you disagree with them?
    Mr. King. We would have concerns, Congressman, on both 
levels. Where arguably the board may be permitted under 
existing case law, it is gone so far in one direction due to 
its totality of cases that it has not presented the type of 
climate for fair, unbiased adjudication.
    But these little minds can argue about certain areas of the 
law, concede that. But we are most concerned about specialty 
health care where we believe the board has not followed the 
law. And the election proposed rules we believe are outside the 
scope of the law on a number of points: due process issues, not 
having a hearing before an election. So, on both levels we have 
concerns.
    Mr. Altmire. And do you feel like your concerns will be 
heard in a way that is within the scope of the law, and that 
there will be a decision made by a court based upon the claims 
that you are making?
    Mr. King. I agree with Mr. Martin that there is always--I 
should not say always. Strike that; that there is a court of 
appeal option in many circumstances. That what we really are 
facing at the end of this year is an NLRB with only two city 
members. And as you may know, under the decision of the U.S. 
Supreme Court, a new process still, the board will not be able 
to adjudicate or function, which I think is a tragedy for 
everybody, labor and management and employees.
    So, we may not be able, unless the Senate confirms one of 
the nominees or both. Or we have another recess appointment 
from the president, and that is controversial. We will have a 
LRB that cannot function, and who not be able to even appeal 
under the courts of appeal.
    So, that is why we have another concern about specialty 
health care. We may not be able to even pass that. Yes, court 
of appeal remedies available in adjudication.
    The last point I would make is that in rulemaking, it is 
exceedingly difficult to take a challenge to a rule into 
federal courts. It can be done. It has been done, but very 
difficult.
    Mr. Altmire. Well, Senate confirmation clearly is an issue 
that needs to be discussed outside of----
    Mr. King. Right.
    Mr. Altmire [continuing]. The parameters.
    But, with regard to favoritism, and I do not know the 
numbers. Perhaps you do. In recent decisions from the NLRB, do 
you have a rough estimate of the percentage of times or the 
number of times where they have sided with the employer versus 
the union.
    Mr. King. No. Excellent question. We intend to amend the 
record on that point.
    I agree with Mr. Martin that on the run-of-the-mill 
discharge case, and cases where employers and unions are out of 
line, this board has addressed those issues. We would agree on 
that. What we do not agree on are the very important policy 
cases.
    And as I mentioned earlier, Member Hayes, the Republican 
has dissented in 59 cases in a very short period of time. That 
is not healthy. That is not healthy for the agencies. It is not 
healthy for unions. It is not healthy for employers.
    And I will tell you what employers tell me. They cannot 
figure out what the law is. And you talk about red tape, legal 
costs, et cetera. That is not good for this economy 
irrespective of your labor or management viewpoint.
    So, it is a problem that needs remedy. We need to get to a 
point where an employer, a union, an employee can bring a case 
to an unbiased agency and get a fair hearing on an expedited 
basis. The current direction the board, at least from the 
employer perspective, says that is not available.
    Mr. Altmire. I guess you are hitting exactly on the point 
that I am trying to get at. And I am asking the question 
without a preconceived answer. But, are you suggesting that in 
those very big cases that you are talking about that the NLRB 
is operating outside the scope of what is legally available to 
them to decide?
    Or are you just saying they are outside the mainstream, 
they are hurting employers, there is an unintended consequence? 
We can argue the policy of that, but are they, in making those 
decisions, violating the law?
    Mr. King. Yes. In specialty health care I think they have 
gone beyond the law. Yes on proposed election rules. Yes on the 
poster as it relates to the independent unfair labor practice 
charge, the totaling of the statute of limitations and the 
union animus that would be thrust upon the employer.
    It is debatable on whether a piece of paper can be required 
to be posted. It is unfortunate we have to spend so much time 
on that. That I agree with. That is debatable.
    But certainly in those areas and certain other areas, 
clearly the board does not follow the law. Other areas I would 
concede they are within their right to adjudicate as they have. 
It is a policy question. And it gets back--and your question is 
an excellent one. It gets back to this oscillation or back and 
forth when we have a Democrat administration or a Republican 
administration. It is not good.
    We have to adders this on a broader base. And I know that 
is an issue, Mr. Chairman, for another hearing, another day. 
But the current system, notwithstanding all the fine public 
servants we have, does not seem to be working.
    Chairman Kline. The gentleman's time has expired.
    Mr. Platts?
    Mr. Platts. Thank you, Mr. Chairman. I want to thank you 
for hosting this hearing. I appreciate all the witnesses being 
here.
    And I guess first, a comment that I know in the title of 
the hearing it is--and I think--and I agree, when you look at 
all the issues the NLRB has actively taken a pro-union. But how 
I would, I think even more importantly describe what they have 
done is anti-worker, union or non-union. And I will highlight 
two. And Ms. Ivey, your testimony hits right on a point on both 
of them, the timeframe that the NLRB is looking at shortening 
to not allow a full and informed decision to be made by 
workers, whether or not to be union.
    I am a former union member, teamster, Local 430. And I am 
withdrawn in good standing from about 24 years ago; still keep 
it in my desk drawer. I am not anti-union. I am pro worker 
fairness.
    So, the timeframe and the suggestion that just a few days 
or even 14 days, and in your case you are given 2 days of a 
hearing. Twelve days after that conference or that meeting, 
boom, you are represented. I mean, no one would think that is a 
fair approach if given an opportunity to honestly comment on 
it.
    And your analogy to--if we had a presidential election and 
said hey, we are going to elect a president or governor or 
mayor, and by the way, the election is going to be 2 weeks from 
now, and by the way, we may do it by open card check and not by 
secret ballot, that would be an outrage across this country, 
understandably. And whether or not to unionize, I would contend 
is one of the most important decision that a citizen makes 
because it is about their livelihood, about their job, their 
pay, their benefits, their working conditions.
    And to rush into this decision--so, first the shortening 
the timeframe is outrageous and not about worker--protecting 
workers, again, union or not. The possibility of disclosure of 
personal information, your email, your phone number; if you 
want to have a private phone number, that is your right and we 
should not be saying no, it has to be given to potential 
representative, a union for their use.
    The card check system, and Ms. Ivey, you said it well in 
your testimony. You say ``every time I was reassured by the 
NAJA my vote was confidential.'' And you go on to say the card 
check process undermines the privacy and voices of the very 
workers they seek to represent.'' I think it captures it.
    You know when I have talked to unions about this issue and 
expressed my absolute opposition to card check, I always ask a 
question. With rare exception, how do most unions vote on 
whether to accept or not a proposed labor contract that their 
union management team has negotiated with the management 
negotiators. They rarely do it by open show of hands. They do 
it by secret ballot so the members of the union can vote in 
private on whether--why do they do that?
    Mr. Martin. Because they do not have to vote.
    Mr. Platts. So that they do not have to publicly say I am 
with my union leaders or I am opposed to what they agree to. I 
think they agree to a terrible contract. They do it by, you 
know, secret ballot. And if it is a good idea for whether to 
agree to a union contract is an even better idea of whether to 
have a union represent you or not. And so both of those issues 
I think are dead wrong and anti-worker, anti-fairness, which is 
what our nation is long stood for when it comes to elections.
    Ms.--or, I am sorry. Mr. Mack, in trying to better 
understand, as my understanding in the denial of the petition 
for a secret ballot because of the Lamaze decision that when 
the NLRB did that they basically said you are going to have to 
wait at least 6 months, and depending if it is a recognition 
board or a contract board, maybe as long as 4 years before you 
can then have an actual secret ballot.
    Mr. Mack. Absolutely.
    Mr. Platts. So, am I understanding that correctly?
    Mr. Mack. You are right on the point, sir.
    Mr. Platts. So, we have an NLRB who does not think it is 
any problem to shorten it to a couple days, you know, or I will 
say 2 weeks to whether to unionize or not. But if you want to 
have a secret ballot and not unionize you got to wait 6 months 
or years. I mean, it captures the pro-union approach of the 
NLRB, and it is not pro-worker; it is pro-union.
    Can you expand on that? And especially maybe on the 
Giffords Stream, the contract bar and the recognition bar.
    Mr. Mack. On the contract bar, the employer and the union 
have negotiated a contract. The employees ratify the contract 
in some terms, in some fashion. So, they know that they are 
going to be stuck by the contract for a time. That is 
important.
    When the recognition part that we are dealing with here is 
so many times employees and their cases, a zillion cases out 
there where someone says to an employee, sign here, it is just 
to get an election. Sign here, we just want to keep contact 
with you. Do this and do that. Never telling the employees you 
are going to be stuck with it.
    And then the employer and the union enter into this 
recognition deal the employees are stuck with the union----
    Mr. Platts. Ms. Ivey's case captures it exactly.
    Chairman Kline. And I am sorry, the gentleman's time has 
expired.
    Mr. Tierney, you are recognized.
    Mr. Tierney. Thank you.
    Mr. Martin, help me out and put some perspective on this. 
If I am an individual working on a company and somebody 
misleads me into signing a card for union representation, is 
not there recourse against that?
    Mr. Martin. Sure there is. Sure, it is an unfair labor 
practice. And if it is the basis for the voluntary recognition 
it can be set aside.
    Mr. Tierney. So, if you have got a beef, bring the brief. 
This is sort of nonsense to bring it up here, right?
    Mr. Martin. Right.
    Mr. Tierney. So, look. I am hearing things about how far 
this board has gone off in one direction and how I think one 
witness said, oh, we are going back and forth. The fact of the 
matter is that recent decisions have restored decades long law. 
Is that correct?
    Mr. Martin. Absolutely.
    Mr. Tierney. And----
    Mr. Martin. And all this conversation about specialty 
health care, again, what the board says in specialty health 
care that the board finds that employees in the group that 
share a community of interest after considering the traditional 
criteria, that means the criteria that goes back and is 
traditional.
    Mr. Tierney. So, some people that have a beef, they do not 
like the traditional criteria. Apparently the Bush board did 
not like it because they, for instance in the Lamons Gasket 
case, have been off 1966 to 2007, 41 years. So there is 
Republicans and Democrats in the White House, right?
    Mr. Martin. Exactly.
    Mr. Tierney. And no member, no member raised an objection 
to it during that period of time on the board.
    Mr. Martin. Correct.
    Mr. Tierney. So, you got to the Bush era and they decide 
they do not like it. And so they toss it. And then when it gets 
restored, people argue about, well gee, you know we are 
upsetting precedent here and we are going back and forth. Just 
because we have an outlier in that one board, one period of 
time that upset historic law. Is that correct?
    Mr. Martin. Well, and actually in this case it was the Park 
Hills case that applied specifically to nursing homes. And what 
the board says is we are just going to treat every----
    Mr. Tierney. Case by case.
    Mr. Martin. Case by case.
    Mr. Tierney. And that is what the board went back to doing, 
treating it case by case.
    Mr. King. If I may----
    Mr. Tierney. Sorry. I am having a conversation with Mr. 
Martin here. You have had more than ample opportunity to, I 
think----
    Mr. King. I apologize.
    Mr. Tierney [continuing]. Back and get some direction on 
this.
    So, tell me your perspective of this, Mr. Martin? Am I 
right in saying that rather than show a bias, this board is 
basically restoring what had been traditional law?
    Mr. Martin. Absolutely. We complained quite a bit during 
the Bush board. And we took our medicine and moved on. And it 
is--this is the same--you know this is simply you know the way 
the board traditionally manages its policy.
    Mr. Tierney. Well, actually there was a period of time from 
1966 to 2007 where at least the Lamons Gasket case where 
whatever the administration, whatever party and members of the 
board, they all consistently went along until we got to the 
Bush group.
    Mr. Martin. In fact, the only thing that has changed with 
Lamons Gasket is that in the nursing home industry it is now 
going to be subject to the same traditional community of 
interest test that every bargaining unit has. These guys--you 
know, frankly if they could sell their interpretation, I would 
buy it. But it just does not.
    Mr. Tierney. Right.
    Mr. Martin. What it says is we are going to go back to the 
traditional criteria, and that means an appropriate unit will 
be right. And even though a larger unit might be okay, but we 
are not going to force people into a larger unit unless there 
is an overwhelming community of interest. And that goes back to 
that narrow exception where you know nurses are trying to 
exclude some nurses because they are on the wrong shift.
    Mr. Tierney. So, there is a right, I take it, for an 
employer to voluntarily accept the union when they want to. Is 
that right?
    Mr. Martin. Yes.
    Mr. Tierney. Okay. And this is apparently what Ms. Mack 
bumped up against?
    Mr. Martin. Yes.
    Mr. Tierney. So, first of all if Ms. Mack contends that 
people were forced to sign those cards, whatever, by misleading 
statements or whatever, we should look for Ms. Mack to have 
filed a complaint somewhere, is that right? Then have it 
adjudicated in her favor.
    Mr. Martin. Yes, Ms. Ivey.
    Mr. Tierney. See any evidence of that?
    Mr. Martin. In this case?
    Mr. Tierney. Yes.
    Mr. Martin. Well, I mean, it is--you know we often hear 
people complain about what happened. But you got to prove it. 
So, I mean if--you know, certainly if it can be proven you know 
she would be entitled to a remedy.
    Mr. Tierney. So, she has a remedy on that basis.
    Ms. Ivey. Can I ask a question?
    Mr. Tierney. Well, actually the way we usually do it around 
here is we ask the questions because you are the people with 
the direct relevant information. That is why we are asking on 
that basis or whatever.
    So, no, I appreciate your testimony and all of your 
comments. I just, I guess, do not quite see what it is other 
than that things were restored to their traditional value and 
people liked it when they were out of sync.
    I yield back.
    Chairman Kline. I thank the gentleman.
    Mr. Walberg, you are recognized.
    Mr. Walberg. Thank you--thank you, Mr. Chairman.
    And thanks to each of the witnesses for being here. And 
especially the Michigan State--the University of Michigan 
representative here today, Mr. Mack.
    Mr. Mack. Blue go green and white.
    Mr. Walberg. [Off mike.]
    Mr. Mack [continuing]. Mr. Congressman.
    Mr. Walberg. If you want to answer my next question----
    Mr. Mack. Yes, sir?
    Mr. Walberg. That is not a winning statement around here.
    Mr. Mack. I understand.
    Mr. Walberg. But having a twin brother that is a Buckeye, 
hey, what can you say for family?
    Mr. King, I do want to ask you this question. I am a 
representative from Michigan, a non-right-to-work state. I hate 
to say that, but it is a non-right-to-work state. We are 
challenged with the task of luring employers into the state.
    If you could give me a brief description how the specialty 
health care decision--in fact, I think of the specialty health 
care decision as far more important than even Boeing. Not as 
high profile, but it has greater impact, I think than even 
Boeing. How the specialty health care decision would affect a 
company operating in my hometown of Jackson, Michigan, let us 
say, in acquiring employees.
    Mr. King. Congressman, specialty health care from my 
perspective, unless Mr. Martin can prevail somehow on the NLRB 
to reverse what it just did, is the most significant reversal 
in the recent history of board law. Per the question-and-answer 
that just went on, I was going to hope to say was that 
specialty health care reversed 20 years of precedent of Park 
Manor under both Democrat and Republican boards.
    If we are correct that the overwhelming community of 
interest test has now been implemented, that is another 
reversal of 30 plus years of precedent. It is not correct to 
say we are just going back to our law. That is just flat 
incorrect.
    Per your question, it is specialty holds in your state, the 
small business restaurant, let us say, that has cooks. That is 
perhaps a separate appropriate unit; the servers perhaps a 
separate appropriate unit.
    Mr. Walberg. Micro units.
    Mr. King. Right. Micro units. The cashier, I could go on 
and on, the people that wash the dishes. Where do we draw the 
line? And that is not a job creator.
    I spent a lot of time in Michigan also, Mr. Congressman, in 
Michigan, Ohio, the other states from this part of the country. 
We cannot take many more hits. We need to create jobs.
    Mr. Walberg. Now, going back to the decision that was made 
earlier, did not members of the board under Chairwoman Liebman 
hold an opposite opinion just about a year ago in a separate 
case, Wheeling Island Gaming?
    Mr. King. Absolutely. That is what is really ironic. The 
former chair of the board, Wilma Liebman, an excellent jurist, 
very bright woman, agreed on just the opposite approach in the 
Wheeling Gaming case.
    Mr. Walberg. What was that approach?
    Mr. King. There the union was attempting to have a separate 
unit of poker dealers, separate unit of others within a casino. 
And the board, with Chair Liebman, a Democrat on the board, 
sided with then Member Schaumburg and Member Becker dissented.
    We do not understand this. That was the law just a year 
ago, and now it seems to be turned upside down.
    Mr. Martin. I can explain----
    Mr. Walberg. They wanted a larger unit instead of the 
smaller unit. Let me ask you, in basis of that issue, if this 
decision is so far out of line, can this go right to the 
federal court for decision?
    Mr. King. Unfortunately not.
    Mr. Walberg. We are stuck with it.
    Mr. King. What we have to do as the employer is refuse to 
bargain. The election ballots are just open in specialty health 
care, by the way. And a small, micro unit was approved for 
representation, which the workers have a right to do. But then, 
if the employer wants to contest that unit, it has to refuse to 
bargain.
    An unfair labor practice complaint then issues, or charge, 
excuse me, is filed. The general counsel issues a complaint, 
and then the employer appeals into the federal courts of 
appeal. We are off into years of litigation and expense.
    Mr. Walberg. Let me turn to Mr. Mack then, and say, what 
happens? If this is a lengthy period of time that is going to 
take place, how do all companies live under this decision in 
the meantime?
    Mr. Mack. Ask your question one more time, please, sir.
    Mr. Walberg. Hearing that this is a lengthy process to get 
through it, in the meantime what happens to all the companies 
now living under the decision?
    Mr. Mack. Most of them are trying to bargain with the union 
to get an agreement. And more importantly, Congressman, we are 
talking about going to federal courts. There are many times you 
are talking about small to medium-sized employers. And they do 
not have the money to run off to federal court like some of the 
bigger ones did.
    So, these are just bad decisions here. They are just--when 
employers are trying to operate under these near decisions, 
moving employees from one position to another, from one 
department to another, getting product on the assembly line, 
they are just impossible to do. It Balkanizes the operation. 
There is too much conflict and confusion going on. They are not 
good.
    Mr. King. Congressman, just very briefly----
    Chairman Kline. I am sorry. I hate to do this, but the 
gentleman's time has expired. We are drawing to the close of 
the hearing.
    I want to recognize Mr. Miller for his closing remarks.
    Mr. Miller. Thank you very much, Mr. Chairman. I think this 
hearing has pointed out a number of the redundancies in the 
four hearings that we have had, but I guess we will continue to 
plow this ground. I would like to use my time to ask a couple 
of questions.
    Ms. Ivey, when did you find out about the card procedure?
    Ms. Ivey. The email was sent July 20th.
    Mr. Miller. July 20th of----
    Ms. Ivey. This year.
    Mr. Miller [continuing]. 2011?
    Ms. Ivey. Yes, this year.
    Mr. Miller. And did you know about the card provisions for 
that--for recognizing the union, the process before?
    Ms. Ivey. I know of it. I have heard of it because there 
are other unions in our workplace, or the same union, but other 
departments.
    Mr. Miller. So, what was the surprise that you experienced 
when you got the card?
    Ms. Ivey. I never received a card.
    Mr. Miller. So, you did not sign a card?
    Ms. Ivey. No. I was never given that opportunity. I guess I 
would have had to call the union to get one if I wanted to.
    Mr. Miller. No. I think you have a right under the 
agreement that you may revoke your card or--either by request 
of the union or through a neutral umpire at any time after the 
day of the card count. And the cards have to be made available 
to the employees. Are you aware of that?
    Ms. Ivey. Well, they were never made. I live in Salem, and 
there are four of us in Salem. We never even received a card, 
never saw anything----
    Mr. Miller. Did you know that your employer can provide 
information to the union about you as an employee?
    Ms. Ivey. I do not know that.
    Mr. Miller. Did you know--did the other employees ask for 
cards?
    Ms. Ivey. My understanding is that there were employees 
that went to the union to ask for cards so that they could 
distribute them to employees.
    Mr. Miller. Were you aware that the union had access to 
your workplace at different times during the card process?
    Ms. Ivey. They probably did, but I live in Salem and most 
of the activity was in Portland.
    Mr. Miller. In the question of violations, are you aware 
that you can--you could have brought those to the attention of 
the partnership committee?
    Ms. Ivey. My understanding, and again part of this is I do 
live 60 miles south----
    Mr. Miller. No, I understand. Did you----
    Ms. Ivey. Okay.
    Mr. Miller. Did you bring what you thought was a violation 
to the attention of the partnership committee?
    Ms. Ivey. I did not know it was a violation not to be 
offered a card, to be honest.
    Mr. Miller. You know what I think? I think if they had 
posted this in your workplace, because this has been in 
existence since August of 1999, maybe employees would know 
their rights under the agreements that Kaiser entered into with 
the union.
    It is not required to be posted, apparently, but it would 
have been nice to be posted and people could have--you could 
have consulted this during the election process. You could have 
found out your rights. You could have found out your 
obligation.
    You could have found out where you go to file your 
grievances, and what impact they might have, and what the rules 
for the election are because they are all spelled out here. It 
seems to me the posting has some value because this is what 
Kaiser and the union agreed to how this process would go 
forward.
    I live in an area where I think one out of five people who 
have health insurance have Kaiser. Kaiser is a very big 
operation in my area, and these agreements have existed for a 
long time. So, I think there is probably some merit to posting.
    Ms. Ivey. I will agree that I know that there is a job--or 
a posting involving new notices of other things. I think my 
whole case stems on the fact that I believe that we followed 
all the rules to do a petition because there were many of us 
that felt that a card count was----
    Mr. Miller. I understand that. I understand that. But the 
suggestion was that somehow this card, and it explicitly says 
that the card has to tell you that this is for the purposes of 
recognition of the union. There is no other purpose that can be 
done. You suggested you thought the card was for something 
else.
    Apparently nobody went to the partnership committee and 
complained about that. That is to be addressed if that would be 
the case.
    I am just trying to point out, you know, there is great 
upset here because somebody posted the rights of workers under 
the law of the United States of America in the workplace, very 
similar to what is done under the FSLA.
    And yet at the same time, I would assume the workers would 
have liked to have this posted so as you rotate through, 
because as whole balance process about when you are hired and 
when the unit is closed and when it is open and all the rest of 
that. But we act like posting is un-American.
    I mean, that is your presentation of posting here is that 
somehow it is un-American. The type face is the same and you 
have the right to belong to a union and your right not to 
belong to a union. Type face is the same in engagement 
activities and not to engage in activities. But somehow that is 
all un-American.
    Thank you, Mr. Chairman.
    Chairman Kline. I thank the gentleman.
    This hearing has revealed, I think we heard from all of 
you. We on this committee talk back and forth about how the 
NLRB does move back and forth. And it is a pendulum. When there 
is a Republican in the White House, it is weighted with 
Republicans on the board. When it is a Democrat in the White 
House, it is weighted with Democrats on the board. And so 
accusations of being active have gone back and forth.
    I remember when I was the minority here, we did complain 
sometimes. When they are in the minority, they complain.
    But, I do also believe in hearing testimony today that this 
board is especially active. That is Mr. King's testimony. And 
so, I do believe it is incumbent upon us to provide some checks 
to what that board is doing. So, despite the complaints from my 
colleagues, we probably will continue to provide oversight to 
this board and move legislation as necessary to put it back in 
as close a balance as you can get when a system that is 
fundamentally broken.
    It has been suggested by Mr. King and others that the Act, 
the NLRA ought to be changed. I agree. I think that is going to 
be very hard to do, and there is a reason why it has not really 
been changed in all these years. It is very, very hard to do it 
because--in large part because of the swings back and forth and 
the partisan nature of the board.
    I want to thank the witnesses for their testimony, and for 
the lively engagement of discussion; and my colleagues for 
their participation. There being no further business, the 
committee stands adjourned.
    [An additional submission of Chairman Kline follows:]

            Prepared Statement of the HR Policy Association

    Mr. Chairman and distinguished members of the committee: Thank you 
for this opportunity for HR Policy Association to express strong 
concern over the activities of the National Labor Relations Board, 
which, in recent months, has proposed a regulation undermining the 
longstanding election process and issued a series of decisions that 
will cause significant disruption in the workplace and limit employee 
choice in determining union representation.
    HR Policy Association is a public policy advocacy organization 
representing chief human resource officers of major employers. The 
Association consists of more than 330 of the largest corporations doing 
business in the United States and globally, and these employers are 
represented in the organization by their most senior human resource 
executive. Collectively, these companies employ more than 10 million 
people in the United States, and their chief human resource officer are 
generally responsible for employee and labor relations for their 
respective companies.
    The Board's recent action against Boeing, the proposed regulation 
dramatically shortening the time for union elections, and the Specialty 
Healthcare decision which encourages micro-units in the workplace, all 
serve to disrupt the workplace and undermine and hinder job growth and 
economic recovery. We applaud your Committee for holding a hearing on 
these critical issues. We strongly encourage Congress to take action, 
either through changes in the statute or in the funding of the Board, 
to limit or curtail these activities. While there are several issues of 
significant importance, what follows are the Association's concerns 
regarding the proposed election regulations and concerns related to the 
recently issued Specialty Healthcare decision.
I. The NLRB's Expedited Election Rules Would Curtail Employees' Ability 
        to Make a Fully Informed Decision on Union Representation
    On June 22, 2011, the National Labor Relations Board (NLRB) issued 
a Notice of Proposed Rulemaking with respect to Representation-Case 
Procedures (76 Fed. Reg. 36812) which contains a number of 
controversial changes to the highly complex rules and procedures 
governing union representation elections conducted by the NLRB. While 
most of these changes have generated controversy in and of themselves, 
it is the broader goal of the proposed changes--a substantial 
shortening of the election period from the current median of 38 days to 
as little as 10 days--that prompts the strongest objections from the 
employer community. Such a brief period will deprive employees of the 
ability to hear and discuss among themselves the views of both their 
employer and their co-workers, which was one of the most offensive 
aspects of the card check provisions under the Employee Free Choice 
Act.
    Election Data Indicates Proposal is a Solution in Search of a 
Problem. In a statement issued in conjunction with publication of the 
rules, NLRB Chairman Wilma Liebman states that, despite some 
improvements over the years, ``the current [election] rules still seem 
to build in unnecessary delays, to encourage wasteful litigation, to 
reflect old-fashioned communication technologies, and to allow 
haphazard case-processing.'' Yet, the case is not made in the proposal 
for this apparent breakdown. Indeed, in his dissent, NLRB Member Brian 
Hayes cites NLRB data to show that the vast majority of elections 
proceed in a very expeditious manner. Currently, the NLRB's internal 
objective in representation cases is to complete elections within 42 
days of the filing of the petition. However, in 2010, the regional 
offices exceeded this objective, completing initial elections in 
representation cases in a median of 38 days from the filing of the 
petition.\1\ Citing BNA data,\2\ Member Hayes further adds: ``Inasmuch 
as unions prevailed in 67.6 percent of elections held in calendar year 
2010 and in 68.7 percent of elections held in calendar year 2009, the 
percentage of union victories contemplated by the majority in the 
revised rules must be remarkably high.''
---------------------------------------------------------------------------
    \1\ NLRB General Counsel, Summary of Operations (Fiscal Year 2010), 
GC. Mem. 11-03, at 5 (January 10, 2011).
    \2\ ``Number of NLRB Elections Held in 2010 Increased Substantially 
from Previous Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 (May 3, 
2011).
---------------------------------------------------------------------------
    Failure to Seek Stakeholder Views. In addition to its failure to 
justify the need for the proposed changes, the credibility of the 
proposed rules is further undermined by the decision of the Board not 
to solicit any views from the stakeholder community before issuing the 
proposal. In our Blueprint for Jobs in the 21st Century, HR Policy 
recommends ``involvement of essential stakeholders in the formulation 
of new employment policies'' (i.e., through a process of negotiated 
rulemaking) as a solution to the problem of existing rules failing to 
reflect the realities of the workplace. Instead of being formulated 
through a collaborative process, employment regulations often simply 
implement the wish list of a powerful interest group. Moreover, 
President Obama's Executive Order 13563 specifically states that 
``[b]efore issuing a notice of proposed rulemaking, each agency, where 
feasible and appropriate, shall seek the views of those who are likely 
to be affected, including those who are likely to benefit from and 
those who are potentially subject to such rulemaking.'' While 
independent agencies like the NLRB are not required to comply with the 
Executive Order, they should operate within its spirit, particularly in 
a highly sensitive matter like union representation elections, where a 
number of interests are affected. As Member Hayes notes in his dissent, 
there were a number of ways of involving the affected stakeholders in 
this process, including negotiated rulemaking or, at the very least, 
receiving comment by the Board's standing Rules Revision Committee and 
by the Practice and Procedures Committee of the American Bar 
Association. Indeed, some of the proposed changes, such as allowing the 
electronic filing of key documents with the Board, have not generated 
significant opposition and, as part of an overall collaborative 
process, could be part of a package of welcome improvements to the 
Board's election procedures.
    Curtailing Employee Access to Essential Information Before Voting. 
Under the Board's proposed ``hurry up and vote'' procedures, employees 
will be denied critical information in making an informed decision 
regarding whether to be represented by a union--a decision that in the 
vast majority of situations is, as a practical matter, a permanent one 
that will bind not only the voting employees but later hires as well. 
There are two critical areas where key information will be limited or 
curtailed:
     Shorter Campaign Periods While the proposed rules do not 
identify a specific time target, a key provision in the changes 
requires the NLRB regional director to set the election at ``the 
earliest date practicable.'' Member Hayes estimates that the changes 
will result in elections between 10 and 21 days. This is far shorter 
than the current 38 day median (within which, as BNA data indicates, 
unions win 2 of every 3 elections already), which is itself a 
considerably shorter period already than voters have in deciding 
whether a candidate will represent them for 2, 4 or 6 years in 
Washington. In most cases, this gives employees ample opportunity to 
hear not only from their employer but to discuss the issues among 
themselves. Both the Board and the U.S. Supreme Court have recognized 
that Federal labor policy favors ``uninhibited, robust, and wide-open 
debate in labor disputes'' and that the enactment of Section 8(c) 
``manifested a congressional intent to encourage free debate on issues 
dividing labor and management.'' \3\
---------------------------------------------------------------------------
    \3\ See Chamber of Commerce of the United States v. Brown, 554 U.S. 
60, 60-68 (2008); Franzia Bros. Winery, 290 rules provide that, where 
the disputed group of employees involves fewer than 20 percent of the 
total number, all employees are to vote anyway, with the votes to be 
counted after the unit determination is made. Thus, in a casino 
setting, the blackjack and poker dealers may have to vote without 
knowing whether their terms and conditions of employment will be 
covered by a collective bargaining agreement that also covers waiters 
and waitresses, bartenders and others that may or may not have a 
sufficient ``community of interest'' with them.
---------------------------------------------------------------------------
     Not Knowing Who Else the Union Would Represent In seeking 
to expedite the election process, the proposed rules would eliminate 
pre-election proceedings in certain situations where the employer 
disputes the union's claim of which employees will vote upon and 
potentially be represented by the union. Currently, the Board will make 
a ``unit determination'' in those situations before the employees vote. 
The dispute may be based on different job classifications or, as 
discussed below, whether certain employees are exempt supervisors and 
therefore excluded from the voting and the representation. The proposed 
N.L.R.B. 927, 932 (1988). Section 8(c) of the National Labor Relations 
Act protects an employer's right to communicate with employees 
regarding unions and representation issues.
    Uncertain Status of Supervisors. One critical group that will be 
affected by the ``20 percent'' rule just described are supervisors, 
whose exempt status as such determines not only whether they will vote 
and be represented by the union, but also whether their conduct is 
regulated by the same rules that apply to the employer. Thus, if they 
participate as employees in the campaign and it is later determined 
that they were in fact supervisors, statements they made for or against 
the union could be deemed coercive. This could result in the election 
being overturned, as occurred in Harborside Healthcare, Inc., 343 
N.L.R.B. 906 (2004) where an employee who helped the union solicit 
supporters was later deemed a supervisor.
    Denial of Employer Due Process Rights. A number of the changes, 
purportedly in the interests of expediting election procedures, would 
curtail the ability of employers--especially small businesses--to 
effectively present their position to the Board on critical issues like 
which employees should or should not be in the unit. Many of these 
highly technical but significant changes would violate the requirement 
of ``an appropriate hearing'' under the National Labor Relations 
Act,\4\ including:
---------------------------------------------------------------------------
    \4\ 29 U.S.C. Sec.  159(a)(1).
---------------------------------------------------------------------------
     Limiting access to the NLRB for review of both pre-
election and post-election determinations made by regional bureaucrats 
who often are not lawyers;
     Requiring employers to articulate and substantiate their 
positions on key election issues prior to any hearing or risk waiving 
those arguments; nor could they offer evidence or cross-examine 
witnesses with respect to virtually any issues not raised by them at 
the outset, even if those issues have a critical impact on the 
employees;
     Requiring an employer who contests the union's description 
of the ``appropriate unit'' to identify ``the most similar unit'' that 
the employer would deem appropriate, and provide the names, work 
locations, shifts and job classifications of those employees, which 
would then become available to the union.
    Expanding Union Access to Employees' Personal Information. Under 
current procedures, once an election is ordered, employers are required 
to provide the union with a list of the names and addresses of the 
employees who will be voting. The proposed rules would expand the 
information required under so-called ``Excelsior lists'' \5\ to include 
telephone numbers and email addresses, though it is not clear whether 
this information would be personal, business or both. Either is 
problematic. If personal email addresses and telephone numbers are 
required, this would be a significant incursion on employees' privacy. 
If the requirement involves business telephone numbers and email 
addresses, this would be an unprecedented expansion of union access to 
employers' workplaces.
---------------------------------------------------------------------------
    \5\ Named after Excelsior Underwear, Inc., 156 N.L.R.B. 1236 
(1966).
---------------------------------------------------------------------------
II. Decision in Specialty Healthcare Furthers Long-term Goal of Labor 
        to Undermine Fundamental American Labor Law Principle of 
        ``Majority Rules''
    While a number of National Labor Relations Board (NLRB) actions in 
recent months have generated strong public controversy, a recent 
decision that will be enormously disruptive to U.S. employers' ability 
to compete globally has remained well below the public's radar screen. 
Decided on August 26, 2011 by a vote of 3 to 1, with NLRB Member Brian 
Hayes dissenting, the decision in Specialty Healthcare,\6\ enables 
unions to secure organizing victories by carving out very small 
``micro-units'' within a workplace, such as cashiers in a retail 
setting or poker dealers in a casino setting. What makes the situation 
even more alarming is the inability of employers to obtain a prompt 
review in the courts, which will likely take two or three years at 
best.
---------------------------------------------------------------------------
    \6\ 357 NLRB No. 83 (August 26, 2011).
---------------------------------------------------------------------------
    Determining Who Votes in a Union Representation Election. When a 
union seeks to organize employees in a workplace, the first issue to be 
addressed is usually which group of employees will vote and ultimately 
be represented by the union if it is successful--i.e., the 
``appropriate unit.'' The general touchstone in making this 
determination, which is very fact-sensitive, is whether there is a 
``community of interest'' among the employees. When a union has 
authorization cards signed by at least 30% of the employees in the 
unit, it files a petition with the NLRB regional office. If the 
employer believes the union's target is not an appropriate unit, it can 
challenge the petition, prompting a hearing and determination by the 
Board as to what the appropriate unit is, i.e., a ``unit 
determination.'' In making this determination, there is a presumption 
in favor of the union's petition. However, if the employer believes 
that other employees have been inappropriately excluded, it will argue 
that there is a broader community of interest and, prior to Specialty 
Healthcare, the employer generally could prevail if it could show that 
the union's unit does not have interests that are ``sufficiently 
distinct'' from the larger group.\7\
---------------------------------------------------------------------------
    \7\ Cf. Wheeling Island Gaming, 355 NLRB No. 127, Slip. Op. at 1 
n.2 (August 27, 2010); Newton-Wellesley Hospital, 250 NLRB 409, 411-12 
(1980).
---------------------------------------------------------------------------
    Union's Victory Strategy Often Premised on Smallest Possible Group. 
The smaller the group of employees voting in an election, the fewer the 
union needs to gain a majority. Thus, unless there is strong sentiment 
favoring the union in the larger workplace, the union will target a 
discrete group where pro-union sentiment is strongest and hope to hold 
the support of a majority of them in the election. If successful, the 
union can then try to secure better wages, benefits and other 
advantages for this small group, creating a case it can then make to 
the larger workforce. Thus, in Specialty Healthcare, rather than 
seeking to organize the entire non-acute healthcare facility--or even 
all nurses--the the union targeted certified nursing assistants (CNAs), 
and excluded registered nurses (RNs) and licensed professional nurses 
(LPNs), not to mention cooks, dietary aides, business clericals, 
residential activity assistants and others covered by the employers 
human resource policies.
    The Goal of Organizing ``Minority Unions.'' As organized labor's 
ability to organize new members has declined, it has begun supporting 
the concept of ``minority unions,'' i.e., enabling any subset of a 
workforce's employees to form a union that the employer must bargain 
with, even if a majority of the employees do not support it. Although a 
petition has been filed with the NLRB by a broad coalition of unions to 
achieve this through rulemaking,\8\ the National Labor Relations Act is 
clearly based on a ``majority rule'' principle. Moreover, such a 
policy, which mirrors the laws in several European countries, would be 
viewed by employers and, likely the overwhelming majority of 
policymakers as well, as being highly disruptive and divisive in 
American workplaces at a time when U.S. employers are struggling to 
compete globally. Nevertheless, absent a change in the statute, labor 
is interested in any approach that enables it to subdivide a workforce 
to obtain smaller ``majorities'' in elections.
---------------------------------------------------------------------------
    \8\ Petition in the Matter of Rulemaking Regarding Members-Only 
Minority-Union Collective Bargaining (Aug. 14, 2007).
---------------------------------------------------------------------------
    The Specialty Healthcare Decision. In Specialty Healthcare, the 
Board adopted a new standard for determining appropriate units, raising 
the bar substantially--impossibly, in the view of many labor lawyers--
for an employer to challenge the union's unit as excluding other 
employees with a shared community of interest. Abandoning the 
``sufficiently distinct'' standard, the Board will now require 
employers to show that there is an ``overwhelming community of 
interest'' with the larger group by pointing to ``factors that overlap 
almost completely.'' Effectively, any time a union files a petition 
involving a group of employees with the same job title and description, 
it will likely prevail. Although in deciding the case the Board sought 
in one part of the decision to claim that the new rule would only apply 
in non-acute health care facilities, the otherwise broad statements 
made in the decision prompted dissenting Member Brian Hayes to point 
out what management attorneys are generally concluding as well:
    [T]his test obviously encourages unions to engage in incremental 
organizing in the smallest units possible * * * [It will] make it 
virtually impossible for a party opposing this unit to prove that any 
excluded employees should be included * * * [T]he Board's Regional 
Offices * * * will have little option but to find almost any 
petitioned-for unit appropriate * * *\9\
---------------------------------------------------------------------------
    \9\ Specialty Healthcare, 357 NLRB No. 83, Slip. Op. at 19-20. 10 
Wheeling Island Gaming, Inc., 355 NLRB No. 127, Slip. Op. at 1. 6
---------------------------------------------------------------------------
    The Disruptive Impact of the Decision. The successful operation of 
a business often depends on the ability to maintain uniform human 
resource policies that provide wage scales, benefits, scheduling, 
promotions, and so forth to a broad range of employees within the 
workplace. To have these policies fragmented, requiring bargaining with 
a union representing a small group of employees every time changes are 
made, can make or break the employer's ability to maintain the 
flexibility needed to respond to the demands of the marketplace. This 
becomes even more difficult if there are multiple unions, each 
representing one small part of the workforce. Thus, in a retail 
setting, in order to change major store policies, such as hours of 
operation, management of work flows during peak seasons, etc., the 
store owner may first have to bargain with the unions separately 
representing the cashiers, the salespersons in each department, the 
loading dock, the delivery truck drivers, etc. To underscore the 
absurdity of the ruling in Specialty, an earlier ruling in a case 
involving a casino rejected a union's petition to organize the poker 
dealers as a distinct unit from the blackjack, roulette, craps dealers 
and so forth.10 Under Specialty Healthcare, the union would likely have 
prevailed, as signaled by Member Craig Becker's dissent in the case.
    Inability of Employers to Bring a Legal Challenge Necessitates 
Legislative Solution. What is perhaps most disturbing about the 
Specialty Healthcare decision is the inability of employers to obtain a 
challenge in the courts, due to the complicated procedures of the NLRB. 
With extremely rare exceptions, the NLRB does most its rulemaking with 
decisions in cases rather than regulations. There are two kinds of 
decisions--those such as Specialty Healthcare involving election 
procedures (called ``R cases'') and those involving unfair labor 
practices (``C cases''). Only decisions in C cases can be appealed 
directly to the federal courts, nor generally is there any realistic 
ability to obtain declaratory relief by a court that a Board decision 
is wrong. If an employer wishes to challenge an R case decision where 
the union ``won'' the election, it must refuse to bargain with the 
union, thus committing an unfair labor practice, which then invokes the 
Board's procedures in those cases. Thus, the time frame from the filing 
of a union petition to a review by the courts typically involves at 
least a year or two if not longer. Meanwhile, as employers wait for the 
right case to move through these procedures, every NLRB regional office 
in the United States will be required to rule on union petitions in 
accordance with Specialty Healthcare. Absent legislation overturning 
the decision, the disruptive effects will be felt immediately and for a 
very long time.
                                 ______
                                 
    [Whereupon, at 12:19 p.m., the committee was adjourned.]