[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE HEARING ON H.R. 2346, SECRET
BALLOT PROTECTION ACT, AND H.R. 2347,
REPRESENTATION FAIRNESS RESTORATION ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 26, 2013
__________
Serial No. 113-24
__________
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web:
www.gpo.gov/fdsys/browse/
committee.action?chamber=house&committee=education
or
Committee address: http://edworkforce.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
81-534 WASHINGTON : 2014
____________________________________________________________________________
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.
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 Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Tom Price, Georgia Ruben Hinojosa, Texas
Kenny Marchant, Texas Carolyn McCarthy, New York
Duncan Hunter, California John F. Tierney, Massachusetts
David P. Roe, Tennessee Rush Holt, New Jersey
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Timothy H. Bishop, New York
Brett Guthrie, Kentucky David Loebsack, Iowa
Scott DesJarlais, Tennessee Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Larry Bucshon, Indiana Jared Polis, Colorado
Trey Gowdy, South Carolina Gregorio Kilili Camacho Sablan,
Lou Barletta, Pennsylvania Northern Mariana Islands
Martha Roby, Alabama John A. Yarmuth, Kentucky
Joseph J. Heck, Nevada Frederica S. Wilson, Florida
Susan W. Brooks, Indiana Suzanne Bonamici, Oregon
Richard Hudson, North Carolina
Luke Messer, Indiana
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina Robert E. Andrews, New Jersey,
Tom Price, Georgia Ranking Member
Kenny Marchant, Texas Rush Holt, New Jersey
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Robert C. ``Bobby'' Scott,
Scott DesJarlais, Tennessee Virginia
Larry Bucshon, Indiana Ruben Hinojosa, Texas
Trey Gowdy, South Carolina John F. Tierney, Massachusetts
Lou Barletta, Pennsylvania Raul M. Grijalva, Arizona
Martha Roby, Alabama Joe Courtney, Connecticut
Joseph J. Heck, Nevada Jared Polis, Colorado
Susan W. Brooks, Indiana John A. Yarmuth, Kentucky
Luke Messer, Indiana Frederica S. Wilson, Florida
C O N T E N T S
----------
Page
Hearing held on June 26, 2013.................................... 1
Statement of Members:
Roe, Hon. David P., Chairman, Subcommittee on Health,
Employment, Labor, and Pensions............................ 1
Prepared statement of.................................... 3
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts..................................... 4
Prepared statement of.................................... 5
Statement of Witnesses:
Feinstein, Fred, senior fellow, University of Maryland....... 16
Prepared statement of.................................... 18
Felter, Marlene, medical records coder, Chapman Medical
Center, Orange, CA......................................... 20
Prepared statement of.................................... 22
Hunter, Jerry M., partner, Bryan Cave LLP.................... 7
Prepared statement of.................................... 9
Oppenheim, Eric, SPHR chief operating officer and franchisee,
Republic Foods, Inc., Rockville, MD, on behalf of the
Society for Human Resource Management...................... 12
Prepared statement of.................................... 14
Taubman, Glenn M., National Right to Work Legal Defense
Foundation................................................. 24
Prepared statement of.................................... 26
Additional Submissions:
Ms. Felter, exhibits 1-14, Internet address to............... 24
Mr. Taubman, additional information, Internet address to..... 31
LEGISLATIVE HEARING ON H.R. 2346,
SECRET BALLOT PROTECTION ACT, AND
H.R. 2347, REPRESENTATION
FAIRNESS RESTORATION ACT
----------
Wednesday, June 26, 2013
U.S. House of Representatives
Subcommittee on Health, Employment, Labor, and Pensions
Committee on Education and the Workforce
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:06 a.m., in
room 2175, Rayburn House Office Building, Hon. David P. Roe
[chairman of the subcommittee] presiding.
Present: Representatives Roe, Wilson, Price, Guthrie,
Bucshon, Brooks, Andrews, Scott, Tierney, Grijalva, Courtney,
and Wilson.
Also present: Representatives Kline and Miller.
Staff present: Katherine Bathgate, Deputy Press Secretary;
Casey Buboltz, Coalitions and Member Services Coordinator; Owen
Caine, Legislative Assistant; Molly Conway, Professional Staff
Member; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog,
Senior Legislative Assistant; Marvin Kaplan, Workforce Policy
Counsel; Nancy Locke, Chief Clerk; Brian Newell, Deputy
Communications Director; Krisann Pearce, General Counsel; Molly
McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa
Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy Advisor;
Tylease Alli, Minority Clerk/Intern and Fellow Coordinator;
Jody Calemine, Minority Staff Director; John D'Elia, Minority
Labor Policy Associate; Daniel Foster, Minority Fellow, Labor;
Eunice Ikene, Minority Staff Assistant; Michele Varnhagen,
Minority Chief Policy Advisor/Labor Policy Director; Michael
Zola, Minority Deputy Staff Director; and Mark Zuckerman,
Minority Senior Economic Advisor.
Chairman Roe. A quorum being present, the Subcommittee on
Health, Employment, Labor, and Pensions will come to order.
Good morning. I would like to thank our witnesses for being
with us today. Some have traveled a great distance to share
their personal experiences with the committee and we are
grateful for your time.
A story in the Wall Street Journal summed up the economic
challenges many continue to face. In an article entitled ``Some
Unemployed Keep Losing Ground,'' reporter Ben Cassleman writes,
``The recession ended 4 years ago, but for many job seekers, it
hasn't felt like much of a recovery.''
Despite recent progress in the job market, Cassleman notes,
``The trouble is that the place is still far too slow to fill
quickly the huge hole created by the recession.''
We all want to turn the page on the economy where 12
million Americans are searching for work and families are
living paycheck-to-paycheck, and I read just the other day,
over 70 percent of our people in this country are living
paycheck-to-paycheck.
Reforming federal laws, especially those with a significant
effects on the workforce, is vitally important to meeting that
goal, which brings us to the focus of our hearing.
The National Labor Relations Act affects the lives of
virtually every private-sector worker and job creator across
the country. The legislative proposals we are examining today
will help strengthen the law's protections.
First, the Representation Fairness Restoration Act will
preserve unity and harmony in workplaces by rolling back the
NLRB's Specialty Healthcare decision.
Union leaders have long wanted to organize small groups of
employees as a first step toward organizing an entire
workplace. For years the NLRB rejected those efforts by
requiring employees that share a community of interest to be
included in the proposed union; only employees with distinct
interests were not included.
The board is now imposing a radically different approach.
Under its new standard, the NLRB will approve almost every
group of employees selected by the union, no matter how small.
As a result, labor bosses will gerrymander workplaces,
employers will be buried in union red tape, and employees will
have fewer opportunities to advance their careers.
Introduced by Representative Tom Price, H.R. 2347 would
restore the traditional standard for determining which workers
are included in a bargaining unit. The NLRB will have to do
more than rubber stamp the list of employees picked by union
leaders.
The NLRB will have to consider factors such as wages,
skills, working conditions, and job functions when determining
which unit of employees is appropriate just as it did before
the Specialty decision. The policies reflected in the bill
worked well for decades and should continue to govern union
organizing efforts.
As before the committee today is the Secret Ballot
Protection Act. As the title of the bill suggests, it would
require a secret ballot election before a union can be
certified or decertified.
This will eliminate the threat posed by past attempts to
expand the flawed card check scheme where workers are pressured
to publicly declare their support or opposition to union
representation. We can all imagine the chilling effect this has
on workers.
My name has appeared on numerous ballots in recent years.
While my wife swears she votes for me, I will never be able to
be sure and be able to prove it because it is a secret ballot.
That is because a secret ballot affords everyone the
freedom to vote their conscience in privacy without fear of
retribution or coercion. We owe it to every hard-working
American to ensure this fundamental right is preserved in the
workplace.
I want to thank the senior Democratic member for his
comments at a hearing last year on a similar proposal. Mr.
Andrews said it was in his view that the bill introduced last
Congress did not apply equally to union certification and
decertification.
He always makes a strong case, and I appreciate his
concerns. Workers are just as susceptible to intimidation when
disbanding a union as they are when they are forming one. The
bill before us has been amended to ensure that regardless of
the circumstances, workers enjoy the protections of a secret
ballot.
The comments offered by my colleague last year highlight
the importance of this hearing. Our witnesses play an
invaluable role in that effort, as does every member.
With that, I will now recognized my distinguished
colleague, Mr. Tierney, the senior Democratic member on this
subcommittee for his opening remarks.
[The statement of Chairman Roe follows:]
Prepared Statement of Hon. David P. Roe, Chairman,
Subcommittee on Health, Employment, Labor and Pensions
Good morning. I would like to thank our witnesses for being with us
today. Some have traveled a great distance to share their personal
experiences with the committee; we are grateful for your time.
A story in the Wall Street Journal summed up the economic
challenges many continue to face. In an article entitled ``Some
Unemployed Keep Losing Ground,'' reporter Ben Cassleman writes: ``The
recession ended four years ago. But for many job seekers, it hasn't
felt like much of a recovery.'' Despite recent progress in the job
market, Cassleman notes, ``The trouble is that the pace is still far
too slow to fill quickly the huge hole created by the recession.''
We all want to turn the page on an economy where 12 million
Americans are searching for work and families are living paycheck to
paycheck. Reforming federal laws--especially those with a significant
effect on the workforce--is vitally important to meeting that goal,
which brings us to the focus of our hearing. The National Labor
Relations Act affects the lives of virtually every private-sector
worker and job creator across the country. The legislative proposals we
are examining today will help strengthen the law's protections.
First, the Representation Fairness Restoration Act will preserve
unity and harmony in workplaces by rolling back the National Labor
Relations Board's Specialty Healthcare decision. Union leaders have
long wanted to organize small groups of employees as a first step
toward organizing an entire workplace. For years the NLRB rejected
those efforts by requiring employees that share a community of interest
be included in the proposed union; only employees with distinct
interests were not included.
The Obama board is now imposing a radically different approach.
Under its new standard, the NLRB will approve almost every group of
employees selected by the union--no matter how small. As a result,
labor bosses will gerrymander workplaces, employers will be buried in
union red tape, and employees will have fewer opportunities to advance
their careers.
Introduced by Representative Tom Price, H.R. 2347 would restore the
traditional standard for determining which workers are included in a
bargaining unit. The NLRB will have to do more than rubber stamp the
list of employees picked by union leaders. The NLRB will have to
consider factors such as wages, skills, working conditions, and job
functions when determining which unit of employees is appropriate--just
as it did before the Specialty decision. The policies reflected in the
bill worked well for decades and should continue to govern union
organizing efforts.
Also before the committee today is the Secret Ballot Protection
Act. As the title of the bill suggests, it would require a secret
ballot election before a union can be certified or decertified. This
will eliminate the threat posed by past attempts to expand the flawed
card check scheme where workers are pressured to publicly declare their
support--or opposition--to union representation. We can all imagine the
chilling effect this has on workers.
My name has appeared on numerous ballots in recent years. While my
wife swears she voted for me each time, I'll never be able to prove it.
That's because the secret ballot affords everyone the freedom to vote
their conscience in privacy, without fear of retribution or coercion.
We owe it to every hard-working American to ensure this fundamental
right is preserved in the workplace.
I want to thank the Senior Democratic Member for his comments at a
hearing held last year on a similar proposal. Mr. Andrews said it was
his view that the bill introduced last Congress did not apply equally
to union certification and decertification. He always makes a strong
case and I appreciate his concerns. Workers are just as susceptible to
intimidation when disbanding a union as they are when forming one. The
bill before us has been amended to ensure that, regardless of the
circumstances, workers enjoy the protections of a secret ballot.
The comments offered by my colleague last year highlight the
importance of this hearing. Our witnesses play an invaluable role in
that effort, as does every member. With that, I will now recognize my
distinguished colleague Rob Andrews, the senior Democratic member of
the subcommittee, for his opening remarks.
______
Mr. Tierney. Well, thank you very much, Mr. Chairman. Your
wife has weighed in, by the way, and told us that she never did
vote for you. [Laughter.]
Good morning, and I want to thank all of our panel of
witnesses for testifying here today.
You know, union rights have paved the way to the middle
class for millions of Americans over the last century. On
average, workers with union representation earn higher pay and
have greater access to employer-provided health and pensions
than other workers.
Through its support and advocacy for the 40-hour work week,
minimum and overtime wages, safe and healthy working
conditions, pensions and social security, family and medical
leave, expanded educational opportunities, and landmark civil
rights protections, the labor movement had has an immeasurable
positive impact upon the standards of living for all working
people.
Apprenticeship and journeymen programs run by unions are
often the gold standard for job preparation; recruiting and
training Americans for high-wage, high-skilled jobs of the
future in the strengthening our economy.
Unfortunately, today's hearing is one more example of a
special interest-driven anti-worker agenda. Rather than
pursuing policies to raise wages and put Americans back to
work, Committee Republicans are pushing two bills that would
lower wages, impede workers' right to associate freely, and
threaten the economic security of the middle class.
H.R. 2346, the Secret Ballot Protection Act, is an extreme
piece of legislation that actually discourages employers and
employees from working together to make a business more
productive, profitable, and safe.
So for example, this bill would make unlawful voluntary
agreements that many responsible employees, such as Kaiser
Permanente and Daimler Chrysler, have entered to allow
employees to choose by majority sign up whether to have a
union.
These companies have found that majority sign up is an
effective way to gauge workers' free choice, and it results in
less hostility and polarization in the workplace.
The majority believes that even where a majority of
employees and employer both desire to freely and in a mutually
beneficial way allow a union, Washington, D.C., knows better
and such agreements would be prohibited under law.
Committee Republicans will argue that requiring secret
ballots protects workers by enabling them to vote their
conscience without fear of reprisal. They will claim that
secret ballots protect workers from intimidation and harassment
and threats by unions who want them to sign authorization
cards.
However, the National Labor Relations Act and Board, the
law strictly prohibits coercion by unions or employers in card
signing and one of our witnesses here today is a poster child
for that very case, that the law already exists to prohibit
that kind of conduct which they, Republicans, say is feared.
Ironically, while this House Republican bill would make the
NLRB election process workers' only path to a union, Senate
Republicans are threatening to incapacitate the NLRB by
filibustering Board nominees.
Also, H.R. 1120, a bill which would have effectively shut
down the NLRB, passed this Committee in the House just a few
weeks ago. Employee choice, whether by majority sign-up or by
an NLRB election, is clearly under attack.
H.R. 2347, the Representation Fairness Restoration Act,
reverses decades of precedent on how an employee bargaining
unit is formed and instead gives employers substantial control
over which employees must choose for their own bargaining unit.
The bill creates a presumption that employers are free to
add employees to a petitioned-for a bargaining unit unless
employees can show the additional employees have a sufficient,
distinct community of interest from the group petitioning for
the union.
The most significant change however is that the bill
requires the board to choose the largest possible bargaining
unit with a community of interests rather than simply an
appropriate bargaining unit which is the standard under current
law.
This unprecedented undemocratic shift gives employers
instead of employees the dominant voice in determining the
composition of bargaining units.
Republicans contend that this change is necessary because
without it the recent NLRB decision in Specialty Healthcare
will lead to the proliferation of micro units.
However, the NLRB data reveals that since the Specialty
decision, the median size of election units has actually
increased and I direct people's attention to the chart which
shows exactly that.
The true purpose of H.R. 2347 is to allow employers to
gerrymander bargaining units in order to prevent or sway the
outcome of union elections, frustrating workers' efforts to
associate freely and exercise their rights under the NLRA.
Both of these bills trump worker choice and even employer
choice with new dictates from Washington attacking the freedom
of association and the freedom of contract.
I look forward to the witnesses' testimony today, and thank
you for the opportunity to speak.
[The statement of Mr. Tierney follows:]
Prepared Statement of Hon. John F. Tierney, a Representative in
Congress From the State of Massachusetts
Good morning. I would like to thank our panel of witnesses for
testifying today.
Union rights paved the way to the middle class for millions of
Americans over the last century. On average, workers with union
representation earn higher pay and have greater access to employer-
provided health care and pensions than other workers.
Through its support and advocacy for the 40-hour work week, minimum
and overtime wages, safe and healthy working conditions, pension and
social security, family and medical leave, expanded educational
opportunities and landmark civil rights protections, the labor movement
has had an immeasurable, positive impact upon the standards of living
for all working people.
Apprenticeship and journeyman programs run by unions are often the
gold standard for job preparation; recruiting and training Americans
for high-wage, high skilled jobs of the future is strengthening our
economy.
Unfortunately, today's hearing is one more example of a special-
interest driven, anti-worker agenda. Rather than pursuing policies to
raise wages and put Americans back to work, Committee Republicans are
pushing two bills which would lower wages, impede workers' right to
associate freely, and threaten the economic security of the middle
class.
H.R. 2346, the Secret Ballot Protection Act, is an extreme piece of
legislation that actually discourages employers and employees from
working together to make a business more productive, profitable and
safe. So for example, this bill would make unlawful voluntary
agreements that many responsible employers, such as Kaiser Permanente
and DaimlerChrysler, have entered to allow employees to choose by
majority sign-up whether to have a union.
Those companies have found that majority sign-up is an effective
way to gauge workers' free choice--and it results in less hostility and
polarization in the workplace. The majority believes that even where a
majority of employees and an employer both desire to freely and in a
mutually beneficial way allow a union, Washington D.C. knows better and
such agreements should be prohibited under law.
Committee Republicans will argue that requiring secret ballots
protects workers by enabling them to vote their conscience without fear
of reprisal. They will claim that secret ballots protect workers from
intimidation, harassment, and threats by unions who want them to sign
authorization cards. However, the National Labor Relations Act and
Board law strictly prohibit coercion by unions or employers in card
signing.
Ironically, while this House Republican bill would make the NLRB
election process workers' only path to a union, Senate Republicans are
threatening to incapacitate the NLRB by filibustering Board nominees.
Also, H.R. 1120, a bill which would have effectively shut down the
NLRB, passed this Committee and the House just a few weeks ago.
Employee choice--whether by majority sign-up or by an NLRB election--is
clearly under attack.
H.R. 2347, the Representation Fairness Restoration Act, reverses
decades of precedent on how an employee bargaining unit is formed, and
instead gives employers substantial control over which employees must
choose for their own bargaining unit.
The bill creates a presumption that employers are free to add
employees to a petitioned-for bargaining unit, unless employees can
show the additional employees have a ``sufficiently distinct''
community of interests from the group petitioning for the union. The
most significant change, however, is that the bill requires the Board
to choose the largest possible bargaining unit (with a community of
interest), rather than simply an appropriate bargaining unit which is
the standard under current law.
This unprecedented, undemocratic shift gives employers, instead of
employees, the dominant voice in determining the composition of
bargaining units. Republicans contend that this change is necessary
because without it, the recent NLRB decision in Specialty Healthcare
will lead to the proliferation of ``micro-unions.''
However, NLRB data reveals that since the Specialty decision, the
median size of election units has actually increased.
The true purpose of H.R. 2347 is to allow employers to gerrymander
bargaining units in order to prevent or sway the outcome of union
elections, frustrating workers' efforts to associate freely and
exercise their rights under the NLRA.
Both of these bills trump worker choice and even employer choice
with new dictates from Washington--attacking the freedom of association
and the freedom of contract.
I look forward to the witnesses' testimony. Thank you.
______
Chairman Roe. I thank the gentleman for yielding.
Pursuant to committee Rule 7(c), all 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 such statements
and other extraneous material referenced during the hearing to
be submitted for the official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses, and thank each and every one of you for being
here.
First, Mr. Jerry Hunter. He is a partner in the law firm of
Bryan Cave, LLP in St. Louis, Missouri. He served as general
counsel of the National Labor Relations Board from 1989 through
1993.
Welcome, Mr. Hunter.
Mr. Eric Oppenheim is the chief operating officer, Republic
Foods in Rockville, Maryland.
Thank you for being here.
Mr. Fred Feinstein is a senior fellow at the University of
Maryland and resides in Takoma Park, Maryland. He previously
served as the general counsel for the National Labor Relations
Board from 1994 until 1999.
Welcome.
Mrs. Marlene Felter is a medical records coder in Costa
Mesa, California.
Welcome, Mrs. Felter.
And Mr. Glenn Taubman is a staff attorney for the National
Right to Work Legal Defense Foundation in Springfield,
Virginia.
Before I recognize you to provide your testimony, let me
briefly explain our lighting system. You have 5 minutes to
present your testimony. When you begin, the light in front of
you will turn green. With 1 minute left, the light will turn
yellow.
When your time is expired, the light will turn red. At that
point, I will ask you to wrap up your remarks as best as you
are able. As everyone else--as everyone has testified, members
will each have 5 minutes to ask questions and we will try to
stick to that.
And without that, we will begin with Mr. Hunter.
STATEMENT OF JERRY HUNTER, PARTNER, BRYAN CAVE, LLP
Mr. Hunter. Good morning, Chairman Roe, Ranking Member
Andrews, and members of the subcommittee. Thank you for
inviting me to appear here before the subcommittee to testify
today. It is certainly an honor for me to give some remarks
concerning H.R. 2347 and the NLRB decision especially health
care.
As the Chairman Roe indicated, I had the pleasure of
serving as general counsel of the National Labor Relations
Board from November 1989 through November 1993.
I also had the pleasure to start my career out of law
school as a Field Attorney with the National Labor Relations
Board in St. Louis, Missouri where I worked from June 1997
until June 1990--June 1979, and following that service as an
attorney with the NLRB, I had the pleasure of serving as a
trial attorney and senior trial attorney for the U.S. Equal
Employment Opportunity Commission from June 1979 until November
1982.
Mr. Chairman, I request that the entirety of my written
testimony be entered into the record of this hearing. My
statements in my--materials in my statement are heartfelt. I
feel a strong kinship--well, had felt a strong kinship with the
NLRB since that was the first job I had following my legal
education.
As I indicated, my testimony addresses H.R. 2347, the
Representation Fairness Restoration Act and issues raised by
the NLRB decision in Specialty Healthcare and Rehabilitation
Center of Mobile.
In Specialty Healthcare, the board, former Chairman Liebman
and Members Becker and Pearce with former Member Hayes
dissenting, decided that a regional director must find that any
unit that the union petition for is appropriate if the
employees perform the same tasks or earn the same or similar
pay.
This decision will enable unions to organize multiple small
bargaining units within one facility, thereby balkanizing an
employer's operation and literally making it impossible for an
employer to carry out decisions concerning hiring, promotions,
employee transfers, and related decisions.
Employers will be subjected to considerable increase in
operational costs as they may be forced to deal with many
unions which may be certified to represent very small
bargaining units.
Under the board's decision in Specialty Healthcare, a
regional director employed by the board would generally be
forced to hold a representation election in any unit requested
by the union.
It should be noted that before the board issued its
decision in Specialty Healthcare and at the time the board was
giving due consideration to the case, that no party to the case
requested that the board overturn the board's 1991 decision in
Park Manor Care Center; nor did any party request that the
Board consider the Park Manor standard, which had been the
applicable law for 20 years and which had been applied by board
members appointed by both republican and democratic presidents.
And Mr. Chairman, on a personal note, I have to say is that
former General Counsel Feinstein, who is here, who succeeded me
as general counsel applied Park Manor, and Park Manor was not
even overturned under the board appointed by President Bill
Clinton.
Notwithstanding that neither party requested that the board
consider the viability of Park Manor, the board on its own
volition posed the question of whether Park Manor should
continue to be the applicable standard for the parties to
follow. Thereafter the board proceeded to overturn Park Manor.
Additionally, even more troublesome, the board created a
disturbing new element to the community of interest test which
the board uses to determine the composition of bargaining
units.
In early cases, and clearly was the case when I started out
as a field attorney in the regional office with the board in
St. Louis in 1977, the board considered whether employees had a
community of interest when defining bargaining units.
The factors that the board generally considered in unit
determinations included degree of functional integration,
common supervision, the nature of employee skills and
functions, interchangeability, and contact among employees,
work situs, general working conditions, compensation, and
fringe benefits.
The board and Specialty Healthcare in effect jettisoned
this whole analysis when it issued its decision and basically
provided that the unit requested by the union as long as the
board determined that it would be appropriate should be upheld
notwithstanding that there are other employees who share a
community of interest with of the employees in the petition for
a unit.
The board not only overturned a standard for appropriate
unit determinations in the non-acute health care industry,
which had been the standard for 20 years, but it also changed
its long-standing community of interest test by boldly stating
that the board would no longer address whether the petition for
a unit is sufficiently distinct to warrant a separate unit.
The latter part of the board's holding reversed the 30-
year-old standard, which had been acquired by boards appointed
by both democratic and republican presidents, and that the
current board had cited with approval as recently as the year
2010.
Although this board has overturned long-standing NLRB
precedent, unlike any other board--and particularly unlike any
other boards--appointed by either democratic or republican
presidents, the decision in Specialty Healthcare may be one of
the most significant reversals in the history of the agency.
Chairman Roe. Mr. Hunter, I will ask you to wrap up your
testimony.
Mr. Hunter. Okay. And I say this because Specialty
Healthcare will not only be applied to non-acute care
facilities but it will and has been applied to other industries
outside of the non-acute care or nursing home industry and
there are board cases in the rental car industry and the
engineering sector and in other sectors where the board has
applied a Specialty Healthcare to find basically that the
smallest unit petitioned for by the union is an appropriate
unit.
And unless the employer can show that other employees have
an overwhelming community of interest with the petitioned for
unit that the other employees cannot be included in that
bargaining unit.
Thank you, Mr. Chairman, for inviting me to participate in
this hearing.
[The statement of Mr. Hunter follows:]
Prepared Statement of Jerry M. Hunter, Partner, Bryan Cave LLP
Good morning, Subcommittee Chairman Roe, Ranking Member Andrews,
and Members of the Subcommittee, thank you for inviting me to appear
before this Subcommittee and testify today. It is certainly an honor
for me to appear before this Subcommittee as a witness. My name is
Jerry M. Hunter and I am a partner with the law firm of Bryan Cave LLP
in St. Louis, Missouri. Prior to joining Bryan Cave, I served as the
General Counsel of the National Labor Relations Board from November,
1989 through November, 1993. Earlier in my career, I worked as a Field
Attorney with the Region 14 office of the NLRB in St. Louis from June,
1977 until June, 1979. I was also employed as a Trial Attorney and
Senior Trial Attorney by the U.S. Equal Employment Opportunity
Commission from June, 1979 until November, 1982.
My testimony today should not be construed as legal advice as to
any specific fact pattern or circumstances which may form the basis for
any case which may be filed with the NLRB. Additionally, my testimony
is based on my own personal views in light of my previous employment as
a Field Attorney and the General Counsel by the NLRB and does not
necessarily reflect the views of Bryan Cave or any of its attorneys. I
have been in the field of labor and employment law since I graduated
from law school during May, 1977. My experience as a labor and
employment law professional includes, as stated above, having been
employed as an attorney by the NLRB Regional Office in St. Louis and
the EEOC District Office in St. Louis, employed as labor counsel by a
St. Louis Fortune 500 Corporation, served as Director of the Missouri
Department of Labor and Industrial Relations, served a four year term
as General Counsel of the NLRB, and employed by Bryan Cave LLP since
January, 1994 where I represent management in labor and employment law.
On May 24, 1995, I was appointed by the Leadership of the United
States Congress (Senate Majority Leader Robert Dole, Minority Leader
Tom Daschle, Speaker of the House Newt Gingrich and Minority Leader
Richard Gephardt) to serve a four year term as a member of the Board of
Directors of the Office of Compliance. The Office was established by
the Congressional Accountability Act of 1995 to administer the eleven
statutes in the areas of civil rights and labor laws made applicable to
the legislative branch by the Act. The five-member Board is responsible
for administering the Office, carrying out an educational program for
the House and Senate, adapting rules and regulations to implement the
new laws, and serving as the appeal body for administrative complaints
under the Act. A copy of my biographical sketch is attached to my
written testimony as Exhibit A.
Mr. Chairman, I request that the entirety of my written testimony
be entered into the record of the hearing.
Mr. Chairman, my testimony this morning addresses H.R. 2347, the
Representation Fairness Restoration Act, and issues raised by the
National Labor Relation Board's decision in Specialty Healthcare and
Rehabilitation Center of Mobile, 357 NLRB No. 83 (Aug. 26, 2011). In
Specialty Healthcare, the Board (former Chairman Liebman and Members
Becker and Pearce, with Member Hayes dissenting) decided that a
Regional Director must find that any unit that the union petitions for
is appropriate, if the employees perform the same tasks or earned the
same or similar pay. This decision will wreak havoc on employers. This
decision will enable unions to organize multiple small bargaining units
within one facility, thereby balkanizing an employer's operation and
literally making it impossible for an employer to carry out decisions
concerning hiring, promotion, employee transfer and related decisions.
Employers will be subjected to a considerable increase in operational
costs as they may be forced to deal with many unions which may be
certified to represent very small bargaining units. Organized Labor's
ability to carve out small bargaining units will not only adversely
impact employers but will also have the concomitant effect of
eliminating promotional opportunities for employees since union work
rules generally discourage and/or prohibit cross-training and transfer
of employees from one bargaining unit to another bargaining unit. Under
the Board's decision in Specialty Healthcare, a regional director
employed by the Board would generally be forced to hold a
representation election in any unit requested by the union.
It should be noted that in Specialty Healthcare, no party to the
case requested that the Board overturn the Board's 1991 decision in
Park Manor Care Center, 305 NLRB 872 (1991); nor did any party request
that the Board consider the Park Manor standard, which had been the
applicable law for twenty years and applied by Board Members who had
been appointed by both Republican and Democratic Presidents.
Interestingly, the only issue before the Board which was raised by the
party seeking review was a request that the Board consider whether the
regional director erroneously failed to apply the standard at all. See
357 NLRB No. 83, at p. 18. Notwithstanding that neither party requested
that the Board consider the viability of Park Manor, the Board, on its
own volition, posed the question of whether Park Manor should continue
to be the applicable standard for the parties to follow. Thereafter,
the Board proceeded to overturn Park Manor. Additionally, even more
troublesome, the Board created a disturbing new element to the
``community of interest'' test which the Board uses to determine the
composition of bargaining units. In early cases, the Board considered
whether employees had a ``community of interest'' when defining units.
The factors that the Board generally considered in unit determinations
included degree of functional integration, common supervision, the
nature of employee skills and functions, interchangeability and contact
among employees, work situs, general working conditions, compensation,
and fringe benefits. See, e.g., NLRB v. Paper Mfrs. Co., 786 F.2d 163
(3rd Cir. 1986). Difference in supervision is not a per se basis for
excluding employees from an appropriate unit. Texas Empire Pipeline
Co., 88 NLRB 631(1950). The Board has historically stated that the
important consideration is still the overall community of interest
among the several employees. See, United States Steel Corporation, 192
NLRB 58 (1971). By considering whether or not an employer's work
enterprise was integrated and the employee shared an overall
``community of interest'', the Board, prior to the decision in
Specialty Healthcare, avoided separating employees into small groups
from other employees who performed similar or related tasks and who
received the same or similar pay, where the only purpose for carving
out a small group of employees would be to enhance the union's
organizing efforts.
Former Member Hayes, in dissenting from the majority opinion in
Specialty Healthcare, stated as follows:
Finally, as to the majority's claim that the difference between the
Park Manor test and the traditional community-of-interest test is not
understandable, I profess some skepticism. The Board has applied Park
Manor for approximately two decades without apparent misunderstanding
by the parties. The number of contested cases to come before the Board
under this test is quite few. The majority sua sponte chose to raise
the issue whether the Board should adhere to this test, and it found
little support for overruling it in briefs filed by the parties and
amici.
All of this is of little consequence to my colleagues. They know
full well that a petitioned-for CNA unit would ordinarily be found
inappropriate under the Park Manor test, but it serves their greater
purpose to overrule that test in order to get to the issue they really
want to address, a reformulation of the community-of-interest test.
Id. at 18. As stated above, the Board not only overturned the
standard for appropriate unit determinations in the non-acute
healthcare industry which had been the standard for twenty years, but
it also changed its longstanding community-of-interest test, by boldly
stating that the Board would no longer address whether the petitioned-
for unit is ``sufficiently distinct'' to warrant a separate unit. The
latter part of the Board's holding reversed a thirty year old standard
which had been applied by Boards appointed by both Democratic and
Republican Presidents and that the current Board cited with approval as
recently as 2010. Interestingly, the Board's prior approval of the
community-of-interest standard included an affirmative vote by former
chairman Wilma Liebman. See Wheeling Island Gaming, 355 NLRB No. 127,
p. 1, fn. 2 (Aug. 27, 2010) (citing, Newton Wellesley Hospital, 250
NLRB 409, 411-12 (1980)). Although the Obama-appointed Board has
overturned longstanding NLRB precedent unlike any previous Board,
Republican or Democratic appointed, the decision in Specialty
Healthcare may turn out to be one the most significant reversals of
precedent in the history of the Agency. The Board's decision could very
well lead to a multiplicity of small and fragmented bargaining units in
virtually every employer's workforce in every industry in this nation.
Former Member Hayes noted in his dissent that the employer in Specialty
Healthcare in addition to being required to recognize a union that
represents only its certified nurse anesthetists, could also find
itself having to deal with a union for separate bargaining units of
registered nurses, licensed practical nurses, cooks, dietary aides,
business clericals, and residential activity assistants. See 357 NLRB
No. 83, p. 19. Critically, all of these units would be very small, with
the dietary aides having only ten members, the cooks having three
members, and the activity directors having only two employees as
bargaining unit members. The multiple bargaining units or microunits
which likely will result from the Board's decision in Specialty
Healthcare will not only make it more costly for an employer to
operate, but may also result in layoffs and possible closure of the
employer facility. Multiple units or microunits which could occur at
one facility would also likely result in work protection clauses being
included in any collective bargaining agreement which the employer may
ultimately have to agree to (i.e., unit in women's shoe department and
unit in men's shoe department), which would prohibit the employer from
transferring employees from one department to another and, in effect,
drive up the employer's operation costs.
Beyond facing these administrative burdens, employers would find
themselves at increased risks of work stoppages at the hands of
multiple unions which represent multiple units, each of which could
halt the employer's operations if their bargaining demands were not
met. 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 shut
down by various fractions of the workforce. Such risk is particularly
high for small businesses, which almost certainly would lack the long-
term reserves to withstand a shutdown.
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. It is very troubling, however, by the
potential freezing effect that fragmented units would have on employee
advancement. As the different collective bargaining agreements
inevitably will have differing provisions on transfers, promotions,
seniority, position posting and preferences, 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.
Only months after the Board's decision was issued in Specialty
Healthcare, the business community's fears became a reality. In DTG
Operations, Inc., 357 NLRB No. 175 (Dec. 30, 2011), a Board majority
(Chairman Pearce and Member Becker, with Member Hayes dissenting)
overruled a Regional Director's finding that the smallest appropriate
unit was a wall-to-wall unit. The union had petitioned for a unit of
rental service and local rental service agents and the employer sought
a broader unit. The Board majority of Chairman Pearce and Member Becker
found that the employees, whom the employer would have added, did not
share an overwhelming community-of-interest with the employees
petitioned for and that those employees sought by the union are an
appropriate unit.
The Board's decision creates real threats not only to labor
relations, but also to the ability of employers to remain competitive
in what has clearly become a worldwide economy. Since I believe that
the Board's decision in Specialty Healthcare may violate the admonition
in Section 9(c)(5), 29 U.S.C. Sec. 159 (``[I]n determining whether a
unit is appropriate for the purposes specified in Subsection (b) [of
this section] the extent to which employees have organized shall not be
controlling''),\1\ the Subcommittee should seriously consider whether
the type of legislative relief proposed by H.R. 2347 is needed to
correct the problems created by the Board's decision in Specialty
Healthcare.
---------------------------------------------------------------------------
\1\ In conformity with this statutory limitation, the Board has
held that a unit based solely or essentially on extent of organization
is inappropriate. New England Power Co., 120 NLRB 666 (1958). See also,
NLRB v. Morganton Hosiery Co., 241 F.2d 913 (4th Cir. 1957);
Metropolitan Life Insurance Co. v. NLRB, 380 U.S. 438 (1965); Motts
Shop Rite of Springfield, 182 NLRB 172 (1970) (Section 9(c)(5)
prohibits the Board from establishing a bargaining unit solely on the
basis of extent of organization).
---------------------------------------------------------------------------
______
Chairman Roe. Thank you, Mr. Hunter.
Mr. Oppenheim?
STATEMENT OF ERIC OPPENHEIM, CHIEF OPERATING OFFICER, REPUBLIC
FOODS, INC.
Mr. Oppenheim. Good morning, Chairman Roe, Congressman
Tierney, and distinguished members of the subcommittee.
My name is Eric Oppenheim. I am the chief operating officer
of Republic Foods in Rockville, Maryland. I appear before you
today on behalf of the Society for Human Resource Management,
or SHRM, and its more than 260,000 members.
Thank you for the invitation today.
I have been a human resources professional since 1997, and
I am the co-lead for SHRM's Special Expertise Panel on Labor
Relations. In addition, I am a Burger King franchisee, and I
have been in the restaurant business for over 15 years.
SHRM supports balanced management labor relations. SHRM
recognizes the inherent rights of an employee to quorum, join,
assist in, or refrain from joining a labor organization, but
SHRM also believes that HR professionals have a responsibility
to understand and champion employment related actions and that
are in the best interests of their organizations, their
employees with regard to third-party representation by labor
unions.
SHRM is very concerned that the 2011 National Labor
Relations Board decision in NLRB v. Specialty Healthcare is not
a balanced approach. We are concerned that the application in
Specialty decision will needlessly harm employee morale,
deprive employees of valuable training and development, and
compel employers to manage unnecessarily small bargaining units
of similar employees. Therefore, we are very supportive of H.R.
2347 introduced by Congressman Price.
My family and I own and operate 19 Burger King Restaurants
in Maryland and Washington, D.C. Our industry is
ultracompetitive, and we operate on a very slim profit margins.
Our profit per employee is one of the lowest in the industry.
We are not one-percenters, Mr. Chairman.
Our restaurants currently employ 531 people most of whom
are crew members who perform a wide variety of job functions.
These job functions include our cashiers who take orders from
our customers, porters who clean our facilities, guest
ambassadors who maintain our dining room cleanliness and field
customer requests, expediters who deliver food to our customers
at the front counter, kitchen prep who prepare stock in our
kitchens, line cooks who prepare food for our guests, and shift
leaders who manage crewmember activities.
Each of these job functions is distinct, but it is very
common for our crew members to perform many of these roles on
any given shift. For example, during a busy meal hour, a line
cook may need to work on a register or take meal orders from
customers. Conversely, a cashier may need to work in the
kitchen preparing food for our guests.
Thus, cross training and multitasking is critical for our
employees to effectively serve customers and gain the necessary
job skills to advance.
It is very concerning that the Specialty decision's new
standard for determining bargaining units may change our
ability to cross train employees and cover necessary work.
The new Specialty standard is allowing labor organizations
to form micro bargaining units by permitting them to target
only subsets of employees who are most likely to support a
union.
At our restaurants, the Specialty decision could eventually
mean that our workforce becomes needlessly fragmented. To refer
to my earlier example, if a union organized the line cooks into
a micro union, the line cook may be contractually prohibited
from covering for a cashier working at a register during busy
time.
Such restrictions would be counterproductive and endlessly
maddening for employees and supervisors.
Then there is the time and expense associated with
negotiating and administering multiple collective bargaining
units covering only a few employees. Small businesses like ours
with thin profit margins can't afford the time, the expense,
and frustration required to negotiate and manage similar
employees working under different contracts.
Furthermore, workforce fragmentation caused by Specialty
may deprive employees' autonomy at work. Employees want to take
on new duties. They want to progress professionally, but micro
bargaining units may restrict their ability to perform their
roles and build on their job experience.
The Specialty decision would also be detrimental to
employees trying to balance life and school or work. This is
because smaller, superfluous bargaining units will mean fewer
shifts available to employees.
Finally, there is employee morale. The Specialty decision
may compel HR professionals and employers to manage multiple
bargaining units of similarly situated employees who have
different wages, hours, and working conditions. This will
create moral problems between employees working side-by-side.
For these reasons, SHRM supports H.R. 2347 to restore the
standard from prior to the Specialty decision for determining
which employees will vote in election.
Mr. Chairman, thank you again for allowing me to share
SHRM's views on the Specialty Healthcare and our support for
H.R. 2347.
[The statement of Mr. Oppenheim follows:]
Prepared Statement of Eric Oppenheim, SPHR Chief Operating Officer and
Franchisee, Republic Foods, Inc., Rockville, MD, on Behalf of the
Society for Human Resource Management
Chairman Roe, Ranking Member Andrews and distinguished members of
the Subcommittee, my name is Eric Oppenheim. I am Chief Operating
Officer and Franchisee at Republic Foods of Rockville, Maryland, and I
appear before you today on behalf of the Society for Human Resource
Management (SHRM). I have been a human resource professional and a
member of SHRM since 1997, and I am the co-lead for SHRM's Special
Expertise Panel on Labor Relations. In addition to being a human
resource professional, I am a Burger King franchisee and have been in
the restaurant business for over 15 years. My family and I own and
operate 17 Burger King restaurants in Maryland and two in Washington,
D.C. Thank you for the invitation to appear before you on behalf of
SHRM's more than 260,000 members in over 140 countries.
SHRM is the world's largest association devoted to human resource
(HR) management. The Society serves the needs of HR professionals and
advances the interests of the HR profession. Founded in 1948, SHRM has
more than 575 affiliated chapters within the United States and
subsidiary offices in China and India.
SHRM is very concerned that the August 2011 National Labor
Relations Board (NLRB or the Board) decision in NLRB v. Specialty
Healthcare will needlessly harm employee morale, deprive employees of
valuable training and development and compel employers to manage
unnecessarily small bargaining units of similar employees. In my
testimony, I will outline SHRM's views on employee rights under federal
labor law, provide background about Republic Foods' restaurants and
workforce, and share SHRM's serious concerns about the NLRB's
imbalanced Specialty decision and strong support for H.R. 2347, the
Representation Fairness Restoration Act.
SHRM views on employee representation
Enacted in 1935, the National Labor Relations Act (NLRA) is the
principal statute governing collective bargaining activities in the
private sector. The NLRA was enacted to ensure the right of employees
to assemble and collectively bargain with employers on matters of
workplace welfare, including wages, hours, working conditions and
benefits.
SHRM supports balanced labor-management relations. SHRM recognizes
the inherent rights of employees to form, join, assist in or refrain
from joining a labor organization. Employee NLRA rights to form, join,
assist or refrain from joining a union without threats, interrogation,
promises of benefits or coercion by employers or unions must be
protected. SHRM believes an employee's decision on unionization should
be based on relevant information and free choice, and that
representation without a valid majority of employee interest is
fundamentally wrong.
Ultimately, SHRM believes that HR professionals have a
responsibility to understand, support and champion employment-related
actions that are in the best interests of their organizations and their
employees with regard to third-party representation by labor unions.
The restaurant industry and Republic Foods, Inc.
As a business owner, my goal is to be profitable so that my
restaurants can prosper and create jobs. Traditionally, restaurants are
an ultra-competitive industry and operate with very slim profit
margins. We rely on a large number of customers to fill our restaurant
seats and our drive-thrus to be profitable. There is great pressure on
our product pricing because our customers have many restaurant options
and they are looking for value when they enter our restaurants. Yet,
especially in the sluggish economy of the past several years, any cost
increases in food and ingredient prices, labor expenses, or new
regulations cause restaurants--especially a small business like ours
with thin margins--to raise prices, reduce services, eliminate jobs or
potentially close their doors.
Republic Foods, Inc. is a franchise of Burger King Corporation and
was established in 1982. We greatly value our employees, and they
represent a broad spectrum of individuals. Our restaurants currently
have 531 employees, including 54 restaurant managers or assistant
managers, 8 administrative and supervisory personnel and 469 restaurant
crew members. About one-third of our employees work over 35 hours per
week, about one-third work between 25 and 35 hours per week, and one-
third work less than 25 hours per week. Each restaurant has about 30
crew members.
Our restaurant crew members perform a wide variety of job
functions. These job functions include cashier (individuals who field
meal orders from customers), porter (clean facilities and equipment),
guest ambassador (maintain dining room cleanliness and field customer
requests), expediter (deliver food to customers at the counter),
kitchen prep (keep food, paper goods and other supplies stocked and
filled), line cook (cook and prepare food in kitchen) and shift leader
(manage flow of business and crew member activities).
Cross-training and multitasking is critical for our employees to
effectively serve customers. Each of the job functions described above
is distinct, but it is very common for crew member employees to perform
multiple roles and job functions in a given shift. For example, during
busy meal hours, a line cook may need to work at a register and take
meal orders from customers or, conversely, a cashier may need to work
on the line and prepare food in the kitchen.
Working in our restaurants is many individuals' first employment
experience. While some of our employees have worked in restaurants for
more than 20 years, others are high school students who joined our team
within the past week and look to work their way up to higher-paying
jobs in the future. Since we employ so many entry-level individuals, we
have significant employee turnover, similar to the larger restaurant
industry. Of Republic Foods' 531 crew members, nearly half have been
employed for less than 90 days. As a consequence of our high turnover,
we spend a great deal of time training our employees. It is essential
that our employees have good communication skills and the flexibility
to learn and perform multiple job functions (or cross-train) to serve
our customers.
Concerns with the NLRB's Specialty Healthcare decision
Union density has declined for decades in America. According to the
Bureau of Labor Statistics, only 11.3 percent of wage and salary
workers were members of a union in 2012, compared to 20.1 percent in
1983.\1\ Labor organization leaders have long argued that current laws
on union representation favor management and hinder employees' ability
to organize a union. However, SHRM and others cite the NLRB's 2012
operations report that reveals that the median time from a
representation petition to an election was 38 days as proof that the
period is generally reasonable for employees to weigh the important
choice of whether or not to unionize.\2\
---------------------------------------------------------------------------
\1\ Bureau of Labor Statistics, U.S. Department of Labor (2012).
http://www.bls.gov/news.release/union2.nr0.htm
\2\ National Labor Relations Board (2013). Summary of Operations,
Fiscal Year 2012. January 11, 2013.
---------------------------------------------------------------------------
The Obama Administration has advanced significant labor-management
relations policy through the regulatory process. In particular since
2011, the NLRB and U.S. Department of Labor have been very active
issuing case decisions and substantive regulations.
One of the NLRB's most significant decisions was NLRB v. Specialty
Healthcare and Rehabilitation Center of Mobile (Specialty) on Aug. 26,
2011, in which the Board overruled the established Park Manor precedent
for determining appropriate bargaining units. In Specialty, the Board
established a new standard in which the Board will find that a unit is
appropriate unless the employer demonstrates that employees in a larger
unit share an ``overwhelming'' community of interest with those in the
petitioned-for unit. Meeting this new standard is a significant burden
for employers, and thus the Specialty decision allows labor
organizations to form ``micro-bargaining units'' by permitting them to
target only subsets of employees who are most likely to support the
union.
SHRM is very concerned the Specialty decision may compel HR
professionals and employers to manage multiple bargaining units of
similarly situated employees who have different wages, hours and
working conditions. A proliferation of unnecessarily small bargaining
units will burden employers with significant time, expense and employee
morale challenges associated with administering a number of different
contracts covering only a few of its employees.
At Republic Foods stores, the Specialty decision could eventually
mean that our workforce becomes needlessly fragmented. Currently, our
restaurant crew members regularly perform the job functions of cashier,
porter, guest ambassador, expediter, kitchen prep, line cook and shift
leader often during the same shift as the flow of work may demand. Our
employees cross-train on multiple job functions and cover for one
another during busy hours without hesitation in order to effectively
serve customers. HR professionals and business owners like me are very
concerned that the Specialty decision may complicate how we cover
various job functions by restricting our ability to train and manage
our employees. As an example, a line cook may be contractually
prohibited from covering for a cashier and working at a register during
a busy dinnertime rush. Such restrictions would be endlessly
frustrating for employees and supervisors.
Furthermore, the workforce fragmentation caused by Specialty may
deprive employees of autonomy at work. Employees want to take on new
duties and progress professionally, but micro-bargaining units may
restrict their ability to perform other job functions and impose
unnecessary barriers to employee training and professional development
opportunities. What's more, the Specialty decision would be detrimental
to employee work-life balance because smaller, superfluous bargaining
units will mean fewer shifts available to employees.
The impact of Specialty may also have a negative impact on employee
morale. Collective bargaining contracts determine virtually every
aspect of a covered employee's compensation, benefits and working
conditions. If employees are fragmented into smaller units, then
employees working side-by-side may have different wages or benefits and
have animosity about the disparities.
For these reasons, SHRM supports H.R. 2347, the Representation
Fairness Restoration Act, which was introduced by Rep. Tom Price of
Georgia. The bill would reinstate the 20-year-old standard from prior
to the Specialty decision for determining which employees will vote in
a union election. SHRM believes the pre-Specialty standard was balanced
for employees, employers and labor unions and should be restored.
Conclusion
Mr. Chairman, thank you again for allowing me to share SHRM's views
on Specialty Healthcare and our support for H.R. 2347, the
Representation Fairness Restoration Act. SHRM is very concerned that
the micro-union standard established in the NLRB's Specialty decision
is imbalanced and may harm employee morale, deprive employees of
professional development opportunities and compel employers to
negotiate with, and manage, unnecessarily small bargaining units of
similar employees. Small businesses like ours with thin margins can't
afford the time and expense required to negotiate and manage crew
members working under different collective bargaining contracts. The
costs of Specialty may unfortunately compel employers of all sizes to
raise prices, reduce services or eliminate jobs.
We urge support for H.R. 2347. I welcome your questions.
______
Chairman Roe. Thank you, Mr. Oppenheim.
Mr. Feinstein?
STATEMENT OF FRED FEINSTEIN, SENIOR FELLOW, UNIVERSITY OF
MARYLAND
Mr. Feinstein. Thank you. Good morning, Chairman Roe,
Ranking Member Andrews, and distinguished members of the
committee.
I am pleased to testify again before the committee that I
was privileged to serve as a staff member for 17 years. You
have my further background. I was general counsel for nearly 6
years to the NLRB, and I too was a field attorney as my first--
to the NLRB as a similar to Mr. Hunter right out of law school.
I do request that my entire statement be made a part of the
record, and I will summarize it as best I can. In my view
enactment of the bills under consideration by the committee
today would undermine important principles that have been part
of labor law for decades.
They would erode employee protections and the collective
bargaining process. First, enactment of H.R. 2346 would prevent
employers and employees from reaching an agreement on how to
determine majority support for collective bargaining at a
worksite and require that an NLRB election be held in every
case before collective bargaining could begin.
Today, under long existing law--goes back to the enactment
of the law, employees can seek to demonstrate majority support
for unionized nation for a petition or other approved methods
and employers can accept that evidence of majority support if
they so wish.
The legislation today would substitute these existing
choices that have been part of labor relations for decades with
a mandate that the only way employees and employers can
determine majority support is through an NLRB election.
In my view, one of the strengths of the NLRA is an
underlying premise that workplace relations are best left to be
worked out by employees and employers. H.R. 2346 in limiting
this long-standing principle I am afraid would weaken
successful workplace relations.
Supporters of the bill states needed because unless there
is a board election, there can be abuse that sometimes results
in distorting the true wishes of employees.
The current law contains provisions that prohibit just such
abuse, which in my view work fairly well, not always perfectly,
but they work well. Those who believe otherwise might suggest
perhaps how to improve those protections against abuse rather
than what is proposed in this legislation and eliminate the
important choices available to employees and employers today.
By analogy, there is extensive evidence that significant
abuses occur during the course of campaigns leading to an NLRB
election, but I would--I am confident that the supporters of
2346 would not suggest addressing such abuses by eliminating
NLRB elections.
The second bill under consideration, H.R. 2347 would
substitute the judgment of Congress for the expertise of an
agency that for 75 years Congress has relied on to balance and
assess how best to enforce the principles of labor law.
During republican and democratic administrations, the NLRB
has been able to focus its expertise on developing policies
that apply the principles of the law to evolving workplace
conditions. Unit determinations, in particular, have required
adjustment as the structure and organizations of workplaces has
inevitably evolved.
I am concerned that if this bill were to be enacted as
workplace conditions change and evolve, the factors proposed in
H.R. 2347 could only be adjusted through yet another
legislative enactment.
In my view, the current mechanisms in the law are a far
more effective means of keeping the implementation and
enforcement of labor law policies up-to-date.
In determining an appropriate bargaining unit, the board
has traditionally implied a multifactor test to determine
whether employees share a community of interest. The bill
codifies some of those factors but leaves out important,
relevant factors that have long been taken into consideration.
The new standard is a significant departure from the long-
standing community of interest test. It would substantially add
less weight to the wishes of employees and greater weight to
factors controlled by employers, and so it is inconsistent with
the fundamental right of employees under the NLRA to choose
their representative.
I understand there is this concern, which we have heard
today, that Specialty Healthcare constituted a major change in
the board's traditional test for determining appropriate
bargaining units that would result in the proliferation of
micro units.
But rather than a dramatic change, I believe Specialty
Healthcare did no more than restore the community of interest
standard to unit determinations in nursing homes and other non-
acute facilities and most telling is the data that we have
before us today.
Since Specialty Healthcare, the average size of bargaining
units has actually slightly increased. Taken together I am
concerned that both of these bills into consideration today
would have a significant adverse effect on our system of labor
relations.
Finally, I cannot resist pointing out that while today we
are considering important amendments to the NLRA, currently
pending before Congress is a question that will have a profound
effect not only on today's issues but on all of labor
management relations.
I refer to the possibility that the NLRB might be unable to
function because of the deadlock over appointments of members.
Failure to confirm new members of the board in August would
significantly undermine the rule of law in matters of labor
relations, and I certainly hope that it can be avoided.
Thank you again for this opportunity to appear before this
a distinguished committee.
[The statement of Mr. Feinstein follows:]
Prepared Statement of Fred Feinstein, Senior Fellow,
University of Maryland
Good morning Committee Chairman Roe, Ranking member Andrews and
members of the Committee. I am pleased testify again before the
Committee I was privileged to serve as a staff member for 17 years from
1977 to 1994. My name is Fred Feinstein. For the past thirteen years I
have been a senior fellow at the University of Maryland School of
Public Policy's Executive Programs department. During this period I
have also been a consultant to unions and worker centers on issues of
labor and immigration policy. I am currently a member of the UAW public
review Board and am on other advisory boards. During the Clinton
Administration I served as General Counsel of the National Labor
Relations Board (NLRB) for nearly six years. Today I appear expressing
my own views on the issues raised in this hearing and not as a
representative of any of the organizations with which I have been
affiliated in the past or present.
In my view enactment of the bills under consideration by the
Committee today would undermine important principles that have been
part of the labor law for decades. They would erode employee
protections and the collective bargaining process. Passage of the bills
would impose legislatively mandated rules that would erode flexibility
and limit the ability of employees, employers and the NLRB to make
decisions about workplace conditions. They overrule provisions of the
law enforced and endorsed by the courts and the Board through decades
of both Republican and Democratic administrations.
Enactment of HR 2346 would prevent employers and employees from
reaching an agreement on how to determine majority support for
collective bargaining at a worksite. Instead it would require that the
NLRB to conduct an election in every case before a collective
bargaining relationship could be established. Today, under long
existing law, employees can seek to demonstrate majority support for
unionization through a petition or other approved methods and employers
can exercise the choice to collectively bargain with its employees if
it is satisfied there is majority support. The legislation would
substitute these existing choices, with the mandate that the only way
employees and employers can determine majority support is through an
NLRB election.
Since the NLRA was enacted more than 75 years ago, employers and
employees have had the ability to exercise these choices. In my view
one of the NLRA's strengths is an underlying premise that workplace
relations are best left to be worked out by employees and employers.
The law encourages the efforts of employers and employees to resolve
workplace concerns through consultation and negotiation with as little
outside interference as possible. NLRB case law has consistently relied
on this principle and it is one the strengths of the collective
bargaining process. HR 2346 is not consistent with this longstanding
principle and would weaken successful workplace relations.
Too frequently contentious campaigns against union representation
lead to a deterioration in workplace relations that both employees and
employers come to regret. One way to avoid this deterioration is an
agreement between employers and employees about how to respectfully
express their views on collective bargaining and an agreement on how to
determine majority support for representation. There is evidence that
these mutual agreements are more likely to result in successful labor
relations than more contentious campaigns that often precede NLRB
representation elections. (e.g. See Kreisky and Eaton, 2001) Enactment
of HR 2346 would preclude the possibility of agreements that often
result in successful workplace relations.
Part of the rationale offered in support of H.R. 2346 is that
determining majority support for union representation in a way other
than an NLRB election can lead to abuse and sometimes results in
distorting the true wishes of employees. Current law contains
provisions that prohibit such abuse. While I believe the provisions
prohibiting abuse are usually effectively enforced, those who believe
otherwise might suggest how to improve the protections against abuse
rather than what is proposed in H.R. 2346 which would eliminate
important choices available to employers and employees today. There is
extensive evidence that significant abuses occurs during the course
campaigns leading to NLRB elections, but I am confident the supporters
of H.R. 2346 would not support addressing such abuse by eliminating
NLRB elections.
The second bill under consideration, HR 2347, would substitute the
judgment of Congress for the expertise of the agency that for 75 years
Congress has relied on to balance and assess how best to enforce the
principles of labor law. When Congress enacted the NLRA, the NLRB was
given the important responsibility of deciding how to apply the law of
labor management relations to continually changing workplace realities.
Exercising that responsibility has meant updating and adjusting Board
holdings to reflect new workplace conditions. Unit determinations in
particular have required adjustment as the structure and organization
of diverse workplaces has inevitably evolved.
During Republican and Democratic administrations, the NLRB has been
able to focus its expertise on developing policies that apply the
principles of the law to evolving workplace conditions. The Board has
modified its interpretations based on new evidence that provides a
better understanding of workplace practices. Evaluating the effect of
prior Board rulings has at times been the Board's rational for updating
its rules. The Board has also updated or modified its rulings because
new Board members have a different view on how to most effectively
administer the Act.
In determining whether a unit of employees is appropriate for
bargaining, the Board has traditionally applied a multifactor test to
determine whether the employees share a community of interest and
whether that interest is sufficiently distinct from those of other
employees to warrant a separate bargaining unit. H.R. 2347 codifies
some of those factors but leaves out other important relevant factors
that have long been taken into consideration by the Board, including
similarities in skills and training; geographical proximity; and the
desires of affected employees.
The new standard in H.R. 2347 for unit determinations is a
significant departure from the longstanding ``community of interest''
test. It would give substantially less weight to the wishes of
employees and greater weight to factors controlled by employers. It is
inconsistent with a fundamental right of employees under the NLRA to
choose their collective bargaining representative and would undermine a
central objective of the Act to encourage the process of collective
bargaining.
I am also concerned that if this bill were to be enacted, as
workplace conditions and the preferences of employees and employers
inevitably evolve, the factors proposed in HR 2347 could only be
adjusted through yet another legislative enactment. In my view, current
mechanisms in the law are a more effective means of responding to
workplace changes and keeping the implementation of labor polices up to
date.
A good example of how the Board's approach to cases can evolve is
the reconsideration in Specialty Healthcare of the Board's 1991 holding
in Park Manor. In Park Manor the Board first applied a ``pragmatic or
empirical community of interests approach'' to nursing homes. After
examining the evidence, the Board stated that experience suggested the
Park Manor standard had caused confusion and had not given the parties
sufficient guidance. It also found the nursing home industry had
undergone significant change since the early 90's and the approach
suggested in Park Manor was based on ``facts and analysis already over
two decades out of date.'' (Specialty Health, page 6)
This is an appropriate and time tested way to help assure that the
implementation of the law keeps up with changing workplace realities.
I understand that at least part of reason for today's consideration
of HR 2347 is a misplaced concern that the Board's decision in
Specialty Healthcare constituted a major change in the Board's
traditional test for determining appropriate units.
While my primary concern with HR 2347 is placing Congress in the
role of legislating unit determinations, I believe that the Board's
decision in Specialty Healthcare was an appropriate reaffirmation of
its longstanding ``community of interest principle'' and not the
dramatic change in law that some have suggested. The Board decision did
no more than restore the community of interest standard to unit
determinations in nursing homes and other non-acute care facilities.
One of the major misconceptions about the Specialty Healthcare
decision is that would lead to a proliferation of small ``micro-
units.''
But Board statistics affirm that this has not been the case. Prior
to Specialty Healthcare, the average size of the bargaining units found
to be appropriate by the Board was 24 employees, a figure that has been
relatively consistent. Since Specialty Healthcare, the average size of
bargaining units has actually slightly increased, to 27.
To the extent that there has been a decline in the size of
bargaining units over the decades the law has been in effect, it is
likely to have been caused by changes in work organizations, the nature
of the industries in which collective bargaining is more likely to
prevail and perhaps the changing nature of work. Over this period,
essentially the same community of interest test has been in place so
the Board's standard would not been a significant cause for the changes
in the size of collective bargaining units.
Future Boards will have the opportunity to consider these standards
in light of changes in the industry and the effectiveness of applying
the traditional community of interest standard to nursing homes. In my
view, the current mechanism for making such assessments is how the
application of the law should evolve. It would be a mistake for
Congress to jump in to the day-to-day process of unit determination and
mandate a legislated standard that could only evolve with future
Congressional enactments.
Taken together I believe both bills under consideration today would
have a significant adverse effect on our system of labor management
relations. The bills propose substantial and one sided changes that
appear intended to favor the interests of employers at the expense of
employees. Enactment of the bills would weaken important principles and
employee rights that would undermine the ability of employees to engage
in collective bargaining.
Finally I cannot resist pointing out that while today this
Committee is considering amendments to the NLRA, currently pending
before Congress is a question that will have profound impact not only
on the issues under consideration here, but on all labor-management
relations in this country. I refer to the possibility of the NLRB being
unable to function because of the deadlock over the appointment of
members.
There is already a cloud of uncertainty over the agency because of
the issue of recess appointments pending in the courts. In August, when
current Board member terms expire, if the Senate has not confirmed new
members to the Board, the agency's ability to function will be severely
compromised. There would be significant uncertainty and confusion not
only about the Board's ability to act on unit determinations and the
resolution contested elections, but on the Board's ability to act on
all the day to day issues the agency is called upon to resolve.
While the two bills before this Committee raise important issues,
my primary concern today is the confusion and uncertainty about the
NLRB's ability enforce all aspects of labor relations law that failure
to confirm members to the Board would cause. It would significantly
undermine the rule of law in matters of labor management relations and
I certainly hope it can be avoided.
Thank you again for the opportunity to appear before this
distinguished Committee.
______
Chairman Roe. Thank you, Mr. Feinstein.
Ms. Felter?
STATEMENT OF MARLENE FELTER,
MEDICAL RECORDS CODER
Ms. Felter. Sorry. Good morning, Chairman Roe and
distinguished committee members.
Thank you so very much for the opportunity to appear today
and express the views of an employee and American citizen who
found herself thrust into the middle of a stealthy and vicious
union card check organizing campaign.
My name is Marlene Felter. I am a medical records coder at
Chapman Medical Center in Orange, California. I have been with
the corporation since 1982. Our small community hospital has
never had a union and has never had any major workplace
problems.
My first experience with unions came in 2004 when SEIU
filed with the NLRB for a secret ballot election to unionize
the Chapman workforce. As soon as I heard of SEIU's efforts, I
began to educate my coworkers about the negative effects of
unionization including forced union dues, initiation fees, and
other internal rules.
The evening before the secret ballot at 3 a.m. in the
morning we received a fax from SEIU organizers stipulating that
they would not be appearing and they would lose the election.
The NLRB accepted SEIU's withdrawal and canceled the election.
Some years after this, Chapman entered into a secret card
check neutrality agreement again with SEIU. Although Chapman
employees have never been shown this secret neutrality
agreement or why it was signed, I understand that part of this
agreement required Chapman to give SEIU organizers physical
access to our cell phones, our phone numbers, lists of
addresses, and phone numbers, everything; work numbers.
This agreement also waived all NLRB supervised secret
ballot elections and allowed SEIU to become our representative
by the card check method. I note again, there were no employees
consulted about any of this.
No employees were asked if they wanted their private
information turned over to officials, no employees were asked
if a secret ballot election would be waived, and no employees,
to my knowledge, ever sought SEIU's representation.
On July 2011, SEIU began its efforts to convince and coerce
Chapman workers to sign union cards using the power granted to
it by neutrality agreement. From July to November 2011, my
coworkers reported that SEIU operatives were calling them on
their cell phones, coming to their homes starting at 6:30 in
the morning, sometimes ending up at 9:30 at night; stalking
them, harassing them, in the parking lot, at lunch, even
offering to buy them meals at restaurants and convincing them
to sign sign-in cards. The sign-in cards would then count as a
vote if they signed up for this lunch.
In response to this aggressive organizing activity, I led a
campaign to encourage Chapman employees to sign letters and
petitions stating that they did not wish to be represented by
the union. On our own time, we collected from a majority of
Chapman employees' letters, petitions opposing SEIU
representation, which I delivered to Chapman management.
A small sample of those signatures are attached. Despite
having signatures against SEIU representation from a majority
of employees, a private arbitrator was hired by SEIU and
Chapman conducted a nonpublic card count in November 2011 and
declared SEIU to be employees' majority representative.
In reaching this result, the private arbitrator disallowed
and refused to count many of the anti-SEIU cards and petitions
I had collected, which SEIU had won by one vote.
After this rigged card count was conducted, Chapman
officially recognized SEIU as our exclusive bargaining agent
and began bargaining for a first contract that surely would
have included a clause compelling employees to pay dues to SEIU
or to be fired, which is part of the employment.
I was outraged by this secret card check process that gave
away our legal rights. I contacted the NLRB, which provided me
with free legal assistance to undo this wrongful and shameful
forced representation by a union that was not elected to
represent any of the employees.
On February 3, 2012, my attorney, Glenn Taubman, filed an
unfair labor practice charges with the NLRB. The NLRB took my
statement and issued a subpoena to the SEIU to get underlying
documents to verify for itself whether the card count was valid
or fraudulent.
Instead of responding to the subpoena, SEIU filed a
meritless petition to revoke the subpoena as a delaying tactic.
The NLRB opposed SEIU's deceitful attempt to revoke the
subpoena.
Chairman Roe. Ms. Felter, I am going to ask you to go ahead
and wrap-up your testimony. You are over the time. Just wrap
that up.
Ms. Felter. Okay, I am sorry. Okay, I am just going to go
to the last page.
Okay. In conclusion, I ask how can this happen in America?
How was SEIU allowed to become Chapman employees'
representation through an abusive card check process when in a
secret ballot election it lost overwhelmingly?
How can Congress allow card checks to be used to push
workers into unions when they are so easily abused by
unscrupulous unions like SEIU?
There are HIPAA laws to protect hospital patients yet why
is there no HIPAA laws to protect employees' private
information from greedy union officials?
These unwanted tactics and lack of professional ethics are
happening all over the country. I am pleading with this
committee to rectify this unjust practice and mandate only
secret ballot elections.
Thank you very much.
[The statement of Ms. Felter follows:]
Prepared Statement of Marlene Felter, Medical Records Coder,
Chapman Medical Center, Orange, CA
Chairman Roe and Distinguished Committee Members: Thank you for the
opportunity to appear today and express the views of an employee and
American citizen who found herself thrust into the middle of a stealthy
and vicious union card check organizing campaign.
My name is Marlene Felter. I am a medical records coder at Chapman
Medical Center (``Chapman'') in Orange, California. I have worked at
Chapman since 1997, and before that I worked for Chapman's predecessor
corporations since 1982. Our small community hospital has never had a
union, and has never had any major workplace problems.
My first experience with unions came in 2004, when SEIU filed with
the NLRB for a secret-ballot election to unionize the Chapman
workforce. As soon as I heard of SEIU's efforts, I began to educate my
co-workers about the negative effects of unionization, including forced
union dues and initiation fees, and other internal union rules. (Copy
attached as Exhibit 1). The evening before the secret-ballot vote was
to be held, SEIU union organizers knew that they had no support and
would lose the election, so they sent a fax to Chapman withdrawing
their election petition. The NLRB accepted SEIU's withdrawal and
cancelled the election. (Exhibit 2).
Some years after this, Chapman entered into a secret ``card check
and neutrality'' agreement with SEIU-UHW (``SEIU''). Although Chapman
employees have never been shown this secret neutrality agreement or
told why it was signed, I understand that part of this agreement
required Chapman to give SEIU organizers physical access to the
hospital and to provide them with lists of employees' home addresses
and phone numbers. This agreement also waived all NLRB-supervised
secret ballot elections, and allowed SEIU to become our representative
by the ``card check'' method. I note that no employees were consulted
about any of this. No employees were asked if they wanted their private
information turned over to SEIU officials, no employees were asked if
secret-ballot elections should be waived, and no employees to my
knowledge ever sought SEIU's representation at Chapman.
In July 2011, SEIU began its efforts to convince or coerce Chapman
workers to sign union cards using the power granted to it by neutrality
agreement. From July to November 2011, my co-workers reported that SEIU
operatives were calling them on their cell phones, coming to their
homes, stalking them, harassing them, and even offering to buy them
meals at restaurants to convince them to sign union cards.
In response to this aggressive organizing activity, I led a
campaign to encourage Chapman employees to sign letters and petitions
stating that they did NOT wish to be represented by the union. On our
own time, we collected from a majority of Chapman employees letters and
petitions opposing SEIU representation, which I delivered to Chapman
management. (A small sample of those signatures is attached as Exhibit
3).
Despite having signatures against SEIU representation from a
majority of employees, a private ``arbitrator,'' hired by SEIU and
Chapman, conducted a non-public ``card count'' in November 2011, and
declared SEIU to be the employees' majority representative. In reaching
this result, the private arbitrator disallowed and refused to count
many of the anti-SEIU cards and petitions I had collected. (See Exhibit
3).
After this rigged ``card count'' was conducted, Chapman officially
recognized the SEIU as our exclusive bargaining agent and began
bargaining for a first contract that surely would have included a
clause compelling employees to pay dues to SEIU or be fired. I was
outraged by this secret ``card check'' process that gave away our legal
rights. I contacted the National Right to Work Legal Defense
Foundation, which provided me with free legal assistance to undo this
wrongful and shameful forced representation by a union that did not
represent a majority of employees.
On February 3, 2012, my attorney, Glenn Taubman, filed unfair labor
practice charges with the National Labor Relations Board. (Exhibit 4).
The NLRB took my statement and issued a subpoena to the SEIU to get the
underlying documents, to verify for itself whether the card count was
valid or fraudulent. (Exhibit 5). Instead of responding to the
subpoena, on April 9, 2012, SEIU filed a meritless Petition to Revoke
the Subpoena, as a delaying tactic. (Exhibit 6). The NLRB opposed
SEIU's deceitful attempt to revoke the subpoena (Exhibit 7), and on May
23, 2012, the NLRB in Washington unanimously denied SEIU's effort to
revoke the subpoena. (Exhibit 8).
Once SEIU union officials complied with the subpoena and the NLRB
examined all of the records, it found merit to my unfair labor practice
charges and agreed that the card count was erroneous, if not totally
fraudulent. The NLRB was preparing a formal complaint against both
Chapman and SEIU, to force them to undo their illegal recognition.
However, to avoid litigation and its attendant publicity, both SEIU and
Chapman agreed to a formal NLRB settlement that forced them to renounce
the card check recognition and cease bargaining for a new contract.
(Exhibit 9).
But this was by no means the end of our battle. SEIU essentially
refused to leave Chapman (see Exhibit 10) and was so sure that it could
take over our hospital that, on October 29, 2012, it filed a
certification petition with the NLRB and scheduled a second secret
ballot election. (Exhibit 11). But this time the election was held. In
that election, which was held on November 28, 2012, SEIU lost
overwhelmingly, by a vote of 90-48. (Exhibit 12). On election day SEIU
``challenged'' the ballots of 35 voters who were known to be opposed to
it, so if those ballots had been counted the tally would have been even
more lopsided against the union.
But again, the battle was not over. On December 5, 2012, SEIU filed
45 separate Objections to the Conduct of the Election. (Exhibit 13).
These objections ranged from the mundane to the frivolous. This is
shown by the fact that Chapman was still bound by the SEIU neutrality
agreement during the election, and did not campaign against SEIU or
lift a finger against it, so how could it have committed
``objectionable'' conduct that tainted the election? SEIU then
conducted a 12-day trial before the NLRB to try to prove its frivolous
objections. But on May 31, 2013, the NLRB's hearing officer issued a
106-page opinion refusing to set aside the election and dismissing all
of the union's objections as unsubstantiated. (Exhibit 14). SEIU has
now wasted an enormous amount of its own money, Chapman's money, and
the taxpayer's money, all in an attempt to rope employees into forced
unionization and forced dues.
CONCLUSION: And so I ask, ``how can this happen in America?''
How was SEIU allowed to become Chapman employees'
``representative'' through an abusive card check process, when in a
secret-ballot election it lost overwhelmingly?
How can Congress allow card checks to be used to push workers into
unions when they are so easily abused by unscrupulous unions like SEIU?
How can companies like Chapman be coerced into neutrality and card
check agreements that allow employees to be harassed and stalked by
union operatives collecting signature cards? In our case, SEIU
operatives followed employees to the floors in the hospital, harassed
them to get signatures, and caused workplace disruptions and even a
decline in the quality of patient care. Many employees complained about
these tactics.
There are HIPPA laws to protect hospital patients' private
information, yet
there appear to be no laws protecting employees' private
information from greedy union officials!
These unwanted tactics and lack of professional ethics are
happening all over the USA. I am pleading with this Committee to
rectify this unjust practice and mandate only secret-ballot elections.
Thank you.
______
[The information referred to may be accessed at the
following Internet address:]
http://www.gpo.gov/fdsys/pkg/CPRT-113HPRT87653/pdf/CPRT-
113HPRT87653.pdf
______
Chairman Roe. Thank you, Ms. Felter.
Mr. Taubman?
STATEMENT OF GLENN TAUBMAN, STAFF ATTORNEY, NATIONAL RIGHT TO
WORK LEGAL DEFENSE FUND
Mr. Taubman. Chairman Roe and distinguished committee
members, thank you for the opportunity to appear today. I have
been practicing labor and constitutional law for 30 years on
behalf of individual employees only at the National Right to
Work Legal Defense Foundation.
Marlene Felter is my client, and I am proud to have
represented her in her battle to rid her workplace of an
unwanted union that used an underhanded and rigged card check
process to try to gain representation rights and forced union
dues from hundreds of workers.
Sadly, Ms. Felter's story is far from unique. Employees
trying to refrain from unionization or decertify an unwanted
union, face a daunting array of NLRB and union tactics to keep
them unionized or to thrust unionization on them against their
will.
I would like to address two issues today; the first is the
need for secret ballots in the union selection process, and the
second is the need to reform the way in which the NLRB allows
unions to game the system and cancel decertification elections
when employees want to get rid of a union.
The NLRB's current rules, called blocking charges, allow
unpopular incumbent unions to remain in power for years after
they have lost employees' support.
In the Tenneco case highlighted in my written statement
just recently decided by the D.C. Circuit, 77 percent of the
employees wanted the union out but the NLRB refused to conduct
an election leading to 7 years of litigation before the union
was finally ousted.
Far too often, the NLRB acts as an incumbent protection
squad shielding unions from any challenge to their
representational authority. Now secret ballots are needed
because card check and neutrality agreements destroy employee
rights.
Today, union officials subvert the system of organizing
contemplated by the NLRA. They use neutrality and card check
agreements to organize from the top down.
Unions today organize employers not employees and they do
so by coercing employers to agree in advance to which
particular union is to represent the employees and agree to
waive secret ballot elections.
Companies, browbeaten by union corporate campaigns,
eventually agree to work with one specific union to unionize
their employees.
Once the neutrality and card check agreement is signed, the
employer and the exclusively-favored union work together,
irrespective of the employees' actual preferences.
For example, as in Marlene's case, employers' signatories
to a neutrality agreement provide the union with favored
access, lists of employees' home addresses, phone numbers, and
personal information.
Employees are rarely, if ever, asked to consent to the
release of their private information to union officials, nor
are they ever shown the terms of the neutrality agreement.
Indeed, the NLRB general counsel has specifically held that
employees have no right, no legal right to see a copy of the
neutrality agreement that their employer and this union signed
targeting them; no legal right, and that is Exhibit 2 to my
statement. Employees cannot see the secret backroom agreement
that the union and their employer signed.
In fact, I am happy to say that the Supreme Court just
agreed to hear a national right to work case called Mulhall v.
Unite Here challenging common neutrality provisions as illegal
things of value.
We are optimistic that the Supreme Court will next term
declare much of the shady backroom deals to be illegal things
of value.
In short, secret-ballot elections are necessary in union
certification campaigns to combat the abuses that flow from
neutrality and card check agreements. Employees' rights should
not be a bargaining chip between power hungry union officials
and employers desperate to avoid a corporate campaign.
I also want to address the second issue which I raise is
the blocking charge policies of the National Labor Relations
Board that are used by unions to prevent employees from getting
a decertification election.
I am certainly all for secret ballot elections in
decertification cases as well; however, the NLRB should
actually conduct the decertification elections and not allow
them to be blocked by union blocking charges which prevents
these elections from occurring for months or years.
If Congress is going to mandate secret ballot elections,
which it should, it should also mandate that the NLRB actually
hold these elections and not wrongly and arbitrarily allow
union officials to delay and cancel them at their whim.
Again, I site the Tenneco case which is an exhibit to my
testimony in which the D.C. Circuit said that the NLRB should
have in essence allowed a secret ballot election and not let
that case drag on for 7 years while employees were trying to
get out from an unpopular union.
Blocking charges are regularly misused by union officials
who know that the NLRB will permit them to delay or cancel
decertification elections. Using these tricks to game the
system, union officials can remain as the employees' exclusive
representative even if the vast majority want them out.
In conclusion, Mr. Chairman, I urge you to protect the
secret ballot and to make sure that the NLRB is reformed so
that the rules for secret ballot elections apply fully and
equally to decertifications as well.
Thank you for your attention.
[The statement of Mr. Taubman follows:]
Prepared Statement of Glenn M. Taubman,
National Right to Work Legal Defense Foundation
Thank you for the opportunity to appear today. I have been
practicing labor and constitutional law for 30 years, on behalf of
individual employees only, at the National Right to Work Legal Defense
Foundation. (My vitae is attached as Exhibit 1). I believe that I have
a unique perspective that comes from three decades of representing
thousands of employees who are subject to the National Labor Relations
Act.
Marlene Felter is my client, and I am proud to have represented her
in her on-going battle to rid her workplace of an unwanted union that
used an underhanded and rigged card check process to try to gain
representation rights and forced union dues from hundreds of workers.
Sadly, Ms. Felter's story is far from unique. Employees trying to
refrain from unionization, or decertify an unwanted union, face a
daunting array of union and NLRB tactics to keep them unionized, or to
thrust unionization on them against their will.
I would like to address two issues today: the first is the need for
secret ballots in the union selection process, and the second is the
need to reform the way in which the NLRB allows unions to ``game the
system'' and cancel elections when employees want to decertify the
union. The NLRB's current rules allow unpopular incumbent unions to
remain in power for years after they have lost employees' support.
These NLRB rules often prevent employees from ever having a
decertification election. In the Tenneco case highlighted later in my
statement, 77% of the employees wanted the union out but the NLRB
refused to conduct an election, leading to 7 years of litigation before
the union was finally ousted. Far too often, the NLRB acts as an
``incumbent protection squad,'' shielding unions from any challenge to
their representational authority, thereby cramming unwanted
representation onto unwilling employees.
I. Secret ballots elections are needed
a. Card check and neutrality agreements destroy employee
rights
Secret-ballot elections are desperately needed because of the rise
of ``neutrality and card check'' agreements (often called
euphemistically ``voluntary recognition'' or ``labor peace''
agreements) that abuse employees and destroy their right to free choice
in unionization matters.
The basic theory of the NLRA is that union organizing is to occur
``from the shop floor up.'' In other words, if employees want union
representation, unions will secure authorization cards from consenting
employees and either present those cards to the Board for a
certification election or, if a showing of interest by a majority is
achieved, present them to the employer with a post-collection request
for voluntary recognition. The employer may refuse to recognize the
union (as is its legal right under Linden Lumber Division, Summer & Co.
v. NLRB, 419 U.S. 301 (1974)), and, in either case, the union's proper
course is to submit to an NLRB supervised secret-ballot election held
under ``laboratory conditions.'' General Shoe Corp., 77 NLRB 124, 127
(1948).
Today, however, union officials subvert the system of organizing
contemplated by the NLRA. They use ``neutrality and card check''
agreements to organize from the ``top down.'' Unions now organize
employers, not employees, and they do so by coercing employers to agree
in advance which particular union is to represent the employees, and to
agree to waive secret-ballot elections. Companies, browbeaten by union
``corporate campaigns,'' eventually agree to work with one specific
union to unionize their employees. These neutrality and card check
agreements are common in a host of industries, e.g., healthcare,
lodging, textiles, automotive. http://www.nrtw.org/neutrality/info;
Daniel Yager and Joseph LoBue, Corporate Campaigns and Card Checks:
Creating the Company Unions of the Twenty-First Century, 24 Emp. Rel.
L.J. 21 (Spring 1999); Symposium: Corporate Campaigns, 17 J. Lab. Res.,
No. 3 (Summer 1996). In effect, employers are coerced to create an
exclusive organizing arrangement with a particular union even though
not a single employee has weighed in on whether he or she desires that
particular union as the representative, or desires any representation
at all.
Once the neutrality and card check agreement is signed, the
employer and the exclusively-favored union work together, irrespective
of the employees' actual preferences. For example, employer signatories
to a neutrality agreement provide the favored union with significant
assistance and advantages--all prior to the union's solicitation of
even a single authorization card. This assistance usually includes
lists of employees' home addresses, phones numbers and other personal
information; special access to the workplace for union organizers; and
an agreement to recognize only that union. Employees are rarely, if
ever, asked to consent to the release of their private information to
union officials, or are they shown the terms of the neutrality
agreement. Indeed, the NLRB General Counsel has specifically held that
employees have no right to see a copy of the agreement targeting them
for unionization. Rescare, Inc. & SEIU Local Dist. 1199, Case Nos. 11-
CA-21422 & 11-CB-3727 (Advice Memo. Nov. 30, 2007). (Copy attached as
Exhibit 2).
Top-down organizing is repulsive to the central purposes of the
NLRA. See Connell Constr. Co. v. Plumbers & Steamfitters Local No. 100,
421 U.S. 616, 632 (1975) (``One of the major aims of the 1959 Act\1\
was to limit `top-down' organizing campaigns * * *''); Woelke & Romero
Framing, Inc. v. NLRB, 456 U.S. 645, 663 n.8 (1982) (``It is
undoubtedly true that one of the central aims of the 1959 amendments to
the Act was to restrict the ability of unions to engage in top-down
organizing campaigns.'') (citations omitted). Top-down organizing
tactics, such as the pre-negotiation of neutrality and card check
agreements, create the likelihood for severe abuse of employees'
Section 7 rights to join or refrain from unionization. 29 U.S.C. Sec.
157.
---------------------------------------------------------------------------
\1\ The ``1959 Act'' is the Labor Management Reporting and
Disclosure Act of 1959.
---------------------------------------------------------------------------
In fact, at least one United States Court of Appeals has recognized
that neutrality agreements and the exchange of favors between an
employer and a union can be an illegal ``thing of value'' under 29
U.S.C. Sec. 302, the equivalent of a bribe that should be condemned.
Mulhall v. Unite Here Local 355, 667 F.3d 1211 (11th Cir. 2012); see
also Zev J. Eigen & David Sherwyn, A Moral/ Contractual Approach to
Labor Law Reform, 63 Hastings L.J. 695, 725-31 (2012) (``We believe
that card-check neutrality agreements violate Section 302 and the NLRA
and therefore should not be enforced.''). (Copy attached at Exhibit 3).
Indeed, there exists a long history of cases in which employers and
unions cut secret back-room deals over neutrality and card check and
then pressured employees to ``vote'' for the favored union by signing
authorization cards.\2\ See, e.g., Duane Reade, Inc., 338 NLRB 943
(2003), enforced, No. 03-1156, 2004 WL 1238336 (D.C. Cir. 2004)
(employer unlawfully assisted UNITE and unlawfully granted recognition
based on coerced cards). A common thread running through the many
``improper recognition'' cases compiled in note 2, supra, is that the
favored union did not first obtain an uncoerced showing of interest
from employees and thereafter ask for ``voluntary'' recognition from
the employer. Rather, the union and employer first made a secret
neutrality agreement, and only then were the employees ``asked'' to
sign cards for that anointed union.
---------------------------------------------------------------------------
\2\ Cases where an employer conspired with its favored union to
secure ``recognition'' of that union are legion. See, e.g., Fountain
View Care Center, 317 NLRB 1286 (1995), enforced, 88 F.3d 1278 (D.C.
Cir. 1996) (supervisors and other agents of the employer actively
encouraged employees to support the union); NLRB v. Windsor Castle
Healthcare Facility, 13 F.3d 619 (2d Cir. 1994), enforcing 310 NLRB 579
(1993) (employer provided sham employment to union organizers and
assisted their recruitment efforts); Kosher Plaza Super Market, 313
NLRB 74, 84 (1993); Brooklyn Hosp. Ctr., 309 NLRB 1163 (1992), aff'd
sub nom. Hotel, Hosp., Nursing Home & Allied Servs., Local 144 v. NLRB,
9 F.3d 218 (2nd Cir. 1993) (employer permitted local union, which it
had already recognized as an exclusive bargaining representative, to
meet on its premises for the purpose of soliciting union membership);
Famous Casting Corp., 301 NLRB 404, 407 (1991) (employer actions
unlawfully supported union and coerced the employees into signing
authorization cards); Systems Mgt., Inc., 292 NLRB 1075, 1097-98
(1989), remanded on other grounds, 901 F.2d 297 (3d Cir. 1990); Anaheim
Town & Country Inn, 282 NLRB 224 (1986) (employer actively participated
in the union organizational drive from start to finish); Meyer's Cafe &
Konditorei, 282 NLRB 1 (1986) (employer invited union it favored to
attend hiring meeting with employees); Denver Lamb Co., 269 NLRB 508
(1984); Banner Tire Co., 260 NLRB 682, 685 (1982); Price Crusher Food
Warehouse, 249 NLRB 433, 438-49 (1980) (employer created conditions in
which the employees were led to believe that management expected them
to sign union cards); Vernitron Elec. Components, 221 NLRB 464 (1975),
enforced, 548 F.2d 24 (1st Cir. 1977); Pittsburgh Metal Lithographing
Co., 158 NLRB 1126 (1966).
---------------------------------------------------------------------------
Employers have a wide variety of self-interested business reasons
to enter into neutrality agreements. This primarily includes avoiding
the ``stick'' of union pressure tactics, and/or obtaining the
``carrot'' of favorable future collective bargaining agreements. Other
reasons for which employers have assisted union organizing drives
include: (1) the desire to cut off the organizing drive of a less
favored union, see Price Crusher Food Warehouse, 249 NLRB 433 (1980);
(2) the existence of a favorable bargaining relationship with the union
at another facility, see Brooklyn Hospital Center, 309 NLRB 1163
(1992), aff'd sub nom. Hotel, Hospital, Nursing Home & Allied Services,
Local 144 v. NLRB, 9 F.3d 218 (2d Cir. 1993); or (3) a bargaining chip
during negotiations regarding other bargaining units, see Kroger Co.,
219 NLRB 388 (1975).
As is self-evident, none of these union or employer motivations for
entering into neutrality and card check agreements takes into account
the employees' right to freely choose or reject unionization. Union
officials and employers seek and enter into these agreements to satisfy
their own self-interests, not to facilitate the free and unfettered
exercise of employee free choice.
In short, secret-ballot elections are necessary in union
certification campaigns to combat the abuses that flow from neutrality
and card check agreements. Employees' rights to a secret-ballot
election should not be a bargaining chip between power hungry union
officials and employers desperate to avoid a corporate campaign.
b. Conduct that would be considered objectionable and
coercive in a secret-ballot election is inherent in
every ``card check'' campaign
When conducting secret-ballot elections, the NLRB is charged with
providing a ``laboratory'' in which an experiment may be conducted,
under conditions as nearly ideal as possible, to determine the
uninhibited desires of the employees. See General Shoe Corp., 77 NLRB
124, 127 (1948); NLRB v. Gissel Packing Co., 395 U.S. 575, 601-02
(1969). In contrast, the fundamental purpose and effect of a
``neutrality and card check agreement'' is to eliminate Board-
supervised ``laboratory conditions'' protecting employee free choice,
and to substitute a system in which unions and employers have far
greater leeway to pressure employees to accept union representation.
The contrast between the rules governing a Board-supervised,
secret-ballot election and the ``rule of the jungle'' governing ``card
checks'' could not be more stark. In an NLRB-supervised secret-ballot
election, certain conduct has been found to violate employee free
choice and warrant overturning an election, even if that conduct does
not rise to the level of an unfair labor practice. General Shoe, 77
NLRB at 127. Yet, a union engaging in the identical conduct during a
card check campaign can attain the status of exclusive bargaining
representative under current NLRB rules. Worse still, some conduct that
is objectionable in a secret-ballot election, and would cause the NLRB
to set aside the election, is inherent in every card check campaign!
For example, in an NLRB-supervised, secret-ballot election, the
following conduct has been found to upset the laboratory conditions
necessary to guarantee employee free choice, thus requiring the
invalidation of the election: (a) electioneering activities, or even
prolonged conversations with prospective voters at or near the polling
place;\3\ (b) speechmaking by a union or employer to massed groups or
captive audiences within 24 hours of the election;\4\ and (c) a union
or employer keeping a list of employees who vote as they enter the
polling place (other than the official eligibility list).\5\
---------------------------------------------------------------------------
\3\ See Alliance Ware, Inc., 92 NLRB 55 (1950) (electioneering
activities at the polling place); Claussen Baking Co., 134 NLRB 111
(1961) (same); Bio-Med. Applications, 269 NLRB 827 (1984)
(electioneering among the lines of employees waiting to vote); Pepsi
Bottling Co., 291 NLRB 578 (1988) (same).
\4\ Peerless Plywood Co., 107 NLRB 427 (1953).
\5\ Piggly-Wiggly, 168 NLRB 792 (1967).
---------------------------------------------------------------------------
Yet, this conduct occurs in every ``card check campaign.'' When an
employee signs (or refuses to sign) a union authorization card, he is
likely not to be alone. To the contrary, it is likely that this
decision is made in the presence of one or more union organizers
soliciting the employee to sign a card, and thereby ``vote'' for the
union.\6\ This solicitation could occur during or immediately after a
union mass meeting or a company-paid captive audience speech. In all
cases, the employee's decision is not secret, as in an
---------------------------------------------------------------------------
\6\ The NLRB's justification for prohibiting solicitation
immediately prior to employee voting in a secret-ballot election is
fully applicable to the situation of an employee making a determination
as to union representation in a card check drive.
---------------------------------------------------------------------------
The final minutes before an employee casts his vote should be his
own, as free from interference as possible. Furthermore, the standard
here applied insures that no party gains a last minute advantage over
the other, and at the same time deprives neither party of any important
access to the ear of the voter.
Milchem, Inc., 170 NLRB 362, 362 (1968). Union soliciting and
cajoling of employees to sign authorization cards is incompatible with
this rationale.
election, because the union clearly has a list of who has signed a
card and who has not.
Indeed, once an employee has made the decision ``yea or nay'' by
voting in a secret-ballot election, the process is at an end. By
contrast, a choice against signing a union authorization card does not
end the decision-making process for an employee in the maw of a ``card
check drive,'' but often represents only the beginning of harassment
and intimidation for that employee. (One of my former clients, Clarice
Atherholt, testified under oath in Dana Corp., 351 NLRB 434 (2007),
that ``many employees [in her shop] signed the cards just to get the
UAW organizers off their back, not because they really wanted the UAW
to represent them''). Like Marlene Felter, employees frequently report
harassment and intimidation by union officials collecting signature
cards. (Attached as Exhibit 5 are a small sample of written statements
provided by Marlene Felter's co-workers at Chapman Medical Center who
complained about SEIU's harassing and unwanted home visits, which they
likened to being stalked. The witnesses' identities have been redacted
to protect their privacy).\7\
---------------------------------------------------------------------------
\7\ Most card check campaigns are fraught with union coercion,
intimidation and misrepresentations that do not necessarily amount to
unfair labor practices. See HCF Inc., 321 NLRB 1320, 1320 (1996) (union
held not responsible for threats to employee by authorization card
solicitor that ``the union would come and get her children and it would
also slash her car tires''); Levi Strauss & Co., 172 NLRB 732, 733
(1968) (employer was ordered to recognize the union even though the
Board had evidence of union misrepresentations to employees as to the
purpose and effect of signing authorization cards). In Dana Corp., 351
NLRB 434 (2007), employees testified to relentless harassment by union
officials intent on securing a card majority.
---------------------------------------------------------------------------
If done during a secret-ballot election, conduct inherent in all
card check campaigns would be objectionable and coercive and grounds
for setting aside the election. For example, in Fessler & Bowman, Inc.,
341 NLRB 932 (2004), the Board announced a prophylactic rule that
prohibits union officials from performing the ministerial task of
handling a sealed secret ballot during a mail-in election--even absent
a showing of tampering--because, where ``ballots come into the
possession of a party to the election, the secrecy of the ballot and
the integrity of the election process are called into question.'' Id.
at 933.
But in card check campaigns, the union officials do much more than
merely handle a sealed, secret ballot as a matter of convenience for
one or more of the employees. In these cases, union officials directly
solicit the employees to sign an authorization card (and thereby cast
their ``vote''), stand over them as they ``vote,'' know with certainty
how each individual employee has ``voted,'' and then physically
collect, handle and tabulate these purported ``votes.'' The coercion
inherent in this conduct is infinitely more real than the theoretical
taint found to exist in Fessler & Bowman.
Accordingly, even a card check drive devoid of conduct that may
constitute an unfair labor practice does not approach the ``laboratory
conditions'' guaranteed in a Board-conducted election. As every
American instinctively knows, the superiority of Board-supervised,
secret-ballot elections for protecting employee free choice is beyond
dispute.
II. Reform of the NLRB's ``blocking charge'' rules
I also want to highlight two recent decertification cases that I
have been involved with, to demonstrate the unfairness of the NLRB's
``blocking charge'' rules. These rules allow unions to delay or even
cancel employees' efforts to hold secret-ballot decertification
elections, yet no comparable procedures exist to halt or delay union
certification elections. If Congress is going to mandate secret-ballot
elections, it should also mandate that the NLRB actually hold those
elections and not wrongly and arbitrarily delay or cancel them at the
whim of union officials.
The first case involves Tenneco employees in Grass Lake, Michigan.
The UAW had represented employees at this facility since 1945. But over
time, more and more employees became disenchanted with the union's
representation. The union lost touch with the employees and declared a
disastrous strike in 2005. Many Tenneco employees resigned from the
union and returned to work, and the strike was then marred by union
harassment and picketing of nonstriking employees' homes.
One brave employee, my client Lonnie Tremain, attempted to exercise
his rights under the NLRA by spearheading two employee-driven
decertification campaigns. The first was filed with the NLRB on
February 10, 2006, in Case No. 7-RD-3513. That decertification petition
was supported by 63% of the bargaining unit employees, but the UAW
managed to halt the election by filing unfair labor practice ``blocking
charges'' against Tenneco, and the NLRB refused to conduct the election
sought by 63% of the employees.
Ten months later, feeling ignored and disrespected by the NLRB, Mr.
Tremain and his co-workers launched their second decertification
effort. This time, 77% of the Tenneco employees signed the
decertification petition. Because the NLRB steadfastly refused to
conduct a decertification election, Mr. Tremain and his fellow
employees asked Tenneco to withdraw recognition of the unwanted union.
Based on the overwhelming employee opposition to UAW representation and
the passage of time between the two decertification petitions, Tenneco
withdrew recognition of the union in December 2006.
Of course, the UAW filed new unfair labor practice charges, and the
NLRB General Counsel issued a complaint claiming that Tenneco's unfair
labor practice charges had tainted the employees' petition. On August
26, 2011, the NLRB issued a ``bargaining order,'' mandating that
Tenneco re-recognize the union and install it as the Tenneco employees'
representative, despite the decertification petition signed by 77% of
the employees. Tenneco, 357 NLRB No. 84 (2011).
Tenneco appealed to the U.S. Court of Appeals for the District of
Columbia Circuit, and Mr. Tremain filed a brief in support. On May 28,
2013, the D.C. Circuit, in a unanimous opinion written by Judge Harry
Edwards, ruled that Tenneco did nothing to taint the employees'
decertification petition, and that the Board was wrong to issue a
bargaining order to foist the union back onto the employees. (Copy
attached as Exhibit 4).
In summary, it took Mr. Tremain more than seven (7) years of
uncertainty, litigation and NLRB ``bargaining orders'' before he and
his co-workers were finally rid of the UAW. The promise of a secret-
ballot election under NLRA Section 9(a) was a cruel joke to Mr. Tremain
and his co-workers, because the NLRB refused to hold any election based
on union ``blocking charges'' that even Judge Edwards held were
completely unrelated to the employees' desire to decertify the union.
A similar story recently occurred in California. Chris Hastings is
employed by Scott Brothers Dairy in Chino, California. On August 17,
2010, he filed for a decertification election with Region 31 of the
NLRB, in Case No. 31-RD-1611. He was immediately met with a series of
union ``blocking charges'' that the NLRB used to automatically delay
his election, just as the union knew the Board would.
Officially, the NLRB's rules say this about the ``blocking charge''
policy (Casehandling Manual 11730):
The * * * blocking charge policy * * * is not intended to be
misused by a party as a tactic to delay the resolution of a question
concerning representation raised by a petition. Rather, the blocking
charge policy is premised solely on the Agency's intention to protect
the free choice of employees in the election process.
However, such blocking charges are regularly misused by union
officials, who know that the NLRB will permit them to delay--or
cancel--the decertification election. Using these tricks to ``game the
system,'' union officials can remain as the employees' exclusive
bargaining representative even if the vast majority of employees want
them out. Even worse, the NLRB recently ruled in WKYC-TV, 359 NLRB No.
30 (Dec. 12, 2012), that compulsory dues must continue to flow to the
union even after the collective bargaining contract has expired, giving
union officials even more incentive to ``game the system'' and block
decertification elections. Indeed, union officials' desire to block
decertification elections is predictable, as which incumbent would ever
want to face the voters (and see his income cut off) if he didn't have
to?
In Mr. Hastings' case, the Teamsters were able to ``game the
system'' and delay the decertification election--with the NLRB's
approval--for a full year. When the election was finally held after one
year of delay, in August 2011, the union lost by a vote of 54-20. In
effect, by filing ``blocking charges,'' the Teamsters bought themselves
an extra year of power and forced dues privileges with the connivance
of the NLRB.
In conclusion, I urge you to protect the secret ballot, and to make
sure that the NLRB is reformed so that the rules for secret-ballot
elections apply fully and equally to decertification elections as well.
Thank you for your attention.
______
[The information referred to may be accessed at the
following Internet address:]
http://www.gpo.gov/fdsys/pkg/CPRT-113HPRT87654/pdf/CPRT-
113HPRT87654.pdf
______
Chairman Roe. I thank the panel.
And I will start the questioning by just making a couple of
statements.
One is, I think the single most important thing we have in
America is the secret ballot. That is how the President of the
United States was elected. That is how each one of us was
elected. That is how union representatives are elected is by a
secret ballot.
It doesn't allow coercion by anyone. All of these things
right here that we have heard today both employee and employer
union pressure or employer pressure to either have or not have
a union can be done away with completely with a secret ballot.
You simply go behind and let the merit speak for themselves
and cast your ballot in a non-intimidating way. We had a voting
rights act passed for that in 1965, so that people couldn't be
intimidated.
It would seem that--and I was reading in, Mr. Feinstein,
one of your comments you said the legislation would substitute
these existing choices with a mandate that the only way
employees and employers can determine a majority support is
through an NLRB election. It is called democracy.
That is what you do in a free country. You vote and you
have an election and whoever wins, wins, and that is the way we
play. That way it levels the playing field.
So having said that, Ms. Felter, I know you are in the
midst of--and have a very important job at your hospital and I
would like to ask you, did you feel like or did you have any
way to know what was going on? In other words, when you found
out, you talked to your fellow workers, and you felt that a
majority of them didn't support this and yet you found out you
were then represented by a union and did you know how it
happened? Were you informed along the way how it was happening?
Ms. Felter. Actually, I was informed by other employees
that had approached me regarding that the union was knocking on
their door and the union was talking to them in the parking
lot, calling them on their cell phones. And actually, they were
following them into the units, buying them lunch, bringing them
lunch, interrupting with patient care, and the quality of
patient care.
Chairman Roe. I think you made a point a minute ago about
HIPAA which is a very important point, and you are a coder, so
you are very aware of those things as I am as a doctor. I am
very aware of those HIPAA restrictions to protect people's
privacy and I think you bring--you make a great point about
your privacy is not being protected.
Ms. Felter. Ours were not protected.
Chairman Roe. So you had your phone number, address,
whatever----
Ms. Felter. They had our cell phone numbers. They had our
work numbers. They were asking--I actually received a call one
night what my hours were, how much I made, if I was on salary.
Chairman Roe. So some pretty personal information.
Ms. Felter. Very personal information, and then they would
leave messages and when you go to call them back, number
unavailable.
Chairman Roe. But when you had a secret ballot and you had
a chance to vote, you voted overwhelmingly to not certify it,
but you could have voted, too, if you had the----
Ms. Felter. No, I was off the list. What they did is they
picked and choosed who they wanted to vote and who they didn't.
And human resources actually received a list of patient--of
employees that were allowed to vote.
Chairman Roe. I am going to go to Mr. Taubman.
You make a point just a moment ago about the employees and
they have no legal right to know what agreement is being done
behind closed doors. Is that correct?
Mr. Taubman. That is right, Mr. Chairman, and it is Exhibit
2 to my statement.
In various cases and unfair labor practice charges that I
have filed for employees like Ms. Felter, I have always said to
the National Labor Relations Board; isn't it a violation that
the secret agreements can be made and the employees who are the
targets of the agreements have no legal right to demand a copy?
And the answer from the NLRB general counsels, two of whom
are sitting here through the years the answer has been, no,
these employees have no legal right to a copy of this
agreement. And I just find that to be outrageous.
Under the law, they would have a right to the collective
bargaining agreement if the union and the employer agreed to
one, but yet they don't have a right to the agreement that
targets them for unionization?
Chairman Roe. One--very--I have very little time left.
Mr. Oppenheim, you made some very good points about cross-
training. We do that in hospitals all the time. You train
people to do various jobs and if you can't do that, your shop
doesn't function. Could you quickly comment on that?
Mr. Oppenheim. Yes, you know, we are many individuals'
first employer and they come to us with limited skills, new
skills, and we look at our role as providing them the ability
to move up in the workforce, to gain the skill sets necessary
to improve their wages and their quality of life, and we need
the flexibility in order to do that, and we fear that the
Specialty decision would inhibit their ability and flexibility
to gain new skills to move up in the workforce.
Chairman Roe. Okay.
My time has expired.
Mr. Tierney?
Mr. Tierney. Thank you on that.
Mr. Feinstein, I just want to ask you a question. If I look
at H.R. 2347, the Representation Fairness Restoration Act,
could you give us a little bit of the history of the law? Was
the NLRB really changing the law or going to a law that had
existed over a period of time?
Mr. Feinstein. You are talking about the 2247?
Mr. Tierney. Right.
Mr. Feinstein. In my view, the case is fairly clear on this
and frankly, I am somewhat surprised at some of the assertions
as to what this case says that it is restoring the traditional
community of interest test to nursing home facilities.
There had been, this period earlier in 1991, an earlier
case where the board had tried a test which relied some on a
fact-finding process that they had had on all acute care
hospitals, not nursing homes, but the whole health care
industry, which were required by legislation that it passed
covering the health care industry, and they attempted to apply
a test that took into account some of the factors that have
come out during this rulemaking process earlier.
So they adopted a test specifically for nursing homes which
said community of interest but also recognizing some of the
factors that have come out in our examination of the health
care industry.
Twenty years later when they were deciding Specialty
Healthcare, they went back and looked at the 20 years of
experience and they decided that it, the test really wasn't
working well, that the parties weren't really clear on what
that test meant, and the factors that that case had suggested
might be relevant were out of date.
They were more than 20 years old, and so they said no, we
are not going to--we are going to decide not to rely on that
special test for nursing homes. Instead, we are not going--they
didn't say we have a whole brand-new idea of what unit
determinations are. Instead, we are going to go back to the
traditional community of interest test that applies across the
board and that will be our standard.
They did nothing more than reinstitute a traditional
standard and they spelled it out in the decision, all of the
factors, it certainly is more factors than similar pay and
similar task as has been asserted.
There is a whole list that has been part of the NLRB
jurisprudence for decades. And they said, this is what we are
going to go back to, and this is a test that has withstood
scrutiny in the courts.
In fact, much of the language that they use in re-
describing what this--in describing what this test is relies on
circuit court decisions. So in my view, this was not a dramatic
change.
It was--in fact, it was simply taking a well-established
principle and applying it to facilities that for a particular
reason they hadn't previously. So no, this was a very modest
decision that simply reinstated an old test.
Mr. Tierney. And we have heard a lot of speculation about
what might happen as a result of it in terms of fracturing into
the different representation groups, but as the chart shows,
isn't it actually true that after the Specialty decision, no
such thing happened?
Mr. Feinstein. That certainly seems to be the case. The
evidence is quite clear here, and you know, the question and
some of the concerns I have heard expressed about micro units,
I just don't see how that is a concern that arises out of this
case, and I think the evidence suggests that that in fact is
true.
Mr. Tierney. Now with respect to Ms. Felter's case on that,
you made mention during your remarks that in fact, the current
system allows for card checks to be challenged and somebody who
doesn't want to go, Ms. Felter who apparently has not been
favorably disposed towards unions since at least 1984, was able
to get a free lawyer from the NLRB and challenge it and be
successful.
So would you say that the system as it is currently
composed, gives people the opportunity to challenge the card
check already and be successful in that venture?
Mr. Feinstein. Yes, I think--I mean, I certainly sympathize
with concerns about how the process can take long and so forth,
but it does seem from what I understand happened in that case--
there were allegations of abuse, the NLRB agreed, it set aside
the process, and it did what it does in those situations. It
conducted an election.
So this is a situation in which their--apparently the board
felt like the process wasn't working as it intended because the
NLRB clearly does prohibit abuse in both--in all kinds of
campaigns--in campaigns that lead to elections and campaigns
that don't lead to elections and this does seem to be--I have
to say that there is overwhelming evidence of the very
extensive abuse in the context of situations in which a
majority status is determined through an election.
So abuse can occur unfortunately, that is why we have laws.
That is why we have an agency that is there to be the umpire,
to perform the sometimes difficult task of stepping into the
situations and making sure that the established rules are
followed, and in this instance, it does seem like that system
worked.
Chairman Roe. The gentleman's time is expired.
Dr. Bucshon?
Mr. Bucshon. Thank you, Mr. Chairman.
I grew up in an area of Illinois, a coal mine country in
Illinois, which has a deep history as it relates to the
development of the UMWA and I have direct experience with my
grandfathers both being union members starting back in the
1940s.
My father is a United Mine worker and I have first-hand
accounts of what intimidation is all about when it comes to
that industry I can speak to. And you will find no one else
here that doesn't support the rights of the individual workers
more than I do.
To me, this is about the workers and even though some
people want to say that worker intimidation is mostly
historical, if you really want to go back to the days when my
great-grandfathers and grandfathers were involved in those
movements in central Illinois, take away secret ballots.
I would be interested to know if members of the minority
would like their own personal election to be taken by non-
secret ballot. Utter chaos would ensue. And so the standard for
me is about the workers and what their rights are.
Mr. Feinstein, a quick question. In your oral testimony at
least, you implied that Congress should yield to the NLRB
because they know better about what to do about workers'
rights.
You said that directly, that essentially, Congress--why is
Congress trying to be involved in anything related to the NLRB
when clearly, the people at the NLRB know what is right when it
comes to workers and businesses.
You recognize the fact that the NLRB members obviously have
to have confirmation by the Congress, the Senate, and that in a
democracy, elected officials like members of Congress do have a
role, and I would like you to clarify your statement where you
said that Congress should step out of the way and be brief
because I have a questions.
Mr. Feinstein. Yes. Respectfully, Congressman, I think what
I was suggesting was not that Congress doesn't have a role to
play; Congress is the lawmaker. Congress sets the rules.
Congress sets the policies.
What I was suggesting is that the NLRB is involved in every
single case; the 40,000 or more cases that come before the
agency, and the framework that Congress has created, the
statutory framework is that Congress sets the law and sets the
policies, but the day-to-day application of that law, the day-
to-day interpretation of that law works better if there is an
agency with some expertise and some continuity----
Mr. Bucshon. Okay. I get that----
Mr. Feinstein [continuing]. That could understand the
particulars of any given case, and that I think that it creates
problems when you have a legislative body trying to weigh into
the more direct day-to-day interpretation of the law that I am
afraid----
Mr. Bucshon. You recognize one of the other major roles of
Congress is oversight, correct?
Mr. Feinstein. Absolutely.
Mr. Bucshon. And that is what we are doing here today. That
is one of our major roles. We don't only just pass laws, but
when agencies are doing things that are what Congress doesn't
feel consistent is totally appropriate for Congress to weigh in
on that even on individual cases like Specialty Healthcare.
I am going to move on.
Mr. Taubman, why in your experience do employers--why would
they agree to recognize a union without a secret ballot?
Mr. Taubman. I think most of the time when employers agree
to recognize a union without a secret ballot it is because they
have been subject to some kind of top-down, organizing,
coercive campaign.
As I said in my remarks, unions organize employers today.
They don't organize employees. They didn't come to Marlene and
say, ``Would you like to join our union?''
They got a neutrality card check agreement from her
employer after various forms of coercion and intimidation of
the employer. You know, the threat that we will picket you. We
will put out all kinds of bad PR about your hospital and so on
and so on. So that is why many employers sign these neutrality
and card check agreements.
And it has nothing to with the employees because nobody
asked the employees if they wanted to be subject to this deal,
which by the way, the NLRB says you can't have a copy of the
deal.
Mr. Bucshon. Yes, and in closing, Mr. Chairman, I would
just like to say I can't see why anyone on either side of the
aisle after the testimony that we have heard today who says
that they are here in Congress on behalf of the workers of
America, all workers, could not have significant problems with
what the NLRB is trying to do right now.
It is unbalanced in my view, and Congress does have an
oversight role, and Congress will continue to play an oversight
role when we see this type of unbalanced approach at the NLRB.
I yield back.
Chairman Roe. I thank the gentleman for yielding.
Mr. Andrews?
Mr. Andrews. I thank you, Mr. Chairman. I apologize for
being late.
I thank Mr. Tierney for his noble efforts to help us out
during that time. Just a comment on balance. There are five
witnesses in the hearing, four of them are on one side of the
question, one is on the other. We have had one person who tells
a very compelling story.
Ms. Felter, we are glad you are here--tell her side of the
story.
Ms. Felter. Thank you.
Mr. Andrews. There are certainly hundreds of workers who
could tell a very different story in a different setting, but I
want to ask Mr. Hunter a question.
In your testimony, you say that the Specialty Healthcare
decision will quote--``wreak havoc'' on employers. ``The
decision will enable unions to organize multiple small
bargaining units within one facility thereby balkanizing an
employer's operation and literally making it impossible for an
employer to carry out decisions concerning hiring, promotion,
employee transfer, and related decisions.''
But as the chart shows, since the Specialty Healthcare
decision was rendered, the median size of the bargaining unit
in union elections has actually has gone up by a little bit,
not down. So if the problem was that there was going to be this
outbreak of organizing of these balkanized units, why hasn't it
happened?
Mr. Hunter. Congressman Andrews, I can't--obviously, I am
not familiar with of that chart. I have no way of knowing if
the data that chart relies on is accurate.
Mr. Andrews. The source, Mr. Hunter, is from the National
Labor Relations Board's records, and I would invite you to
check it out yourself----
Mr. Hunter. Okay. I can cite to you several cases right
after--just a few months after the Specialty Healthcare
decision, the board reversed a decision by the regional
director in Denver.
She had refused to uphold a unit that only would include
rental leasing agents at the Denver Airport. The board
overturned her decision and found that that unit just with the
rental service agents and the lead rental service agent was
appropriate even though the regional director had found that
that unit was not appropriate and there are a number of other
cases----
Mr. Andrews. I am sure that is true. I am sure that is true
that there are a number of other cases, but you know, by
definition, those cases are outliers or else the median number
would have gone--and this is not the average, it is the median.
The median number would have gone down dramatically if
those were not the outliers, so I think that you are asking us
here to legislate by anecdote based upon--this bill looks to me
like a solution in search of a problem.
I want to ask you a question, Mr. Taubman. You said a few
minutes ago that quote--``Most of the time,'' the reason that
companies sign neutrality agreements is they have been coerced
or subject of a campaign to coerce them. What is the source of
that conclusion on your part? Do you have any data for that?
Mr. Taubman. The data is that for 30 years I have been
representing employees like Ms. Felter, and when I go to these
companies and unions and say, ``Can she have a copy of the
agreement, they----
Mr. Andrews. No, I read your testimony. I understand that.
I asked you a different question though. I didn't ask you about
Ms. Felter's case. I know that you know that very thoroughly,
as does she.
I asked you, you said, ``Most of the time,'' that employers
sign a neutrality agreement they had been pressured to do so.
What is the source, other than you say 30 years of your own
observation, which is fine, but is there a compilation of
data--is there a list of neutrality agreements that have been
signed and has anyone done an academic study of why people have
signed them?
Mr. Taubman. In my written remarks, I cite some law review
articles that talk about corporate campaigns and how unions use
corporate campaigns to coerce neutrality agreements out of
employers through all of the obvious methods. You know, we will
sully your name in public--okay, so I am answering your
question----
Mr. Andrews. Well, no you are not.
I looked at those law review articles, and I don't see any
data. What I see are legal theories about anecdotes about why
this happened. I don't dispute that those anecdotes are true,
but I want to hold the record of the hearing opening for you,
Mr. Taubman, to show us of the proof for the statement that you
made that most of the time neutrality agreements result from
coercive practices.
And the second thing I would ask you to do is tell us how
many times some legal action has been initiated by the
corporations that play into the victims of these actions;
whether it is NLRB complaints or tortious interference,
lawsuits, or civil RICO matters. We will hold the record open,
maybe you can supplement the record and try to justify your
conclusion.
I would yield back.
Chairman Roe. Thank the gentleman for yielding.
Dr. Price?
Mr. Price. Thank you, Mr. Chairman. I want to thank you for
holding this hearing, and I want to commend the ranking member
for once again his repeated arguments about trying to prove a
negative and as we all know, that just tends to be an
impossibility but it is used by the other side with reckless
abandon.
Ms. Felter, I want to thank you so much for your testimony.
Ms. Felter. You are welcome. It was my pleasure.
Mr. Price. How remarkably compelling the information that
you provided in a very, very personal way, and within that
testimony you commented, how can this happen in America.
So many of us on this panel and so many of us in Congress
and many folks across this country are now looking to
Washington and say how can this happen in America?
How can we have these kinds of rules that are put in place.
So I want to commend you. The intimidation of workers is
phenomenal, and I hear it over and over----
Ms. Felter. It is not only in our workplace, it is
happening all over.
Mr. Price. Exactly. And I want to----
Ms. Felter. And it needs to stop----
Mr. Price. Amen.
Ms. Felter. And we need to do something about this.
Mr. Price. Amen.
Mr. Feinstein, have you ever worked in a nursing home?
Mr. Feinstein. No, sir.
Mr. Price. Have you ever cared for patient in a nursing
home?
Mr. Feinstein. No, sir. I have had family members----
Mr. Price. As a physician, I can tell you that the
challenges of long-term care are astounding and to have labor
law dictate how folks who are caring for patients at their most
critical time, and make it so that the opportunity to care for
patients in a positive way to provide them the highest quality
care is limited because of micro unions is astounding to me.
Why anybody can believe that that is the way we ought to
go. When a patient begins to go bad in a nursing home, it is
all hands on deck. And with this ruling, the Specialty
Healthcare ruling provides I would suggest to you and to my
friends on the other side is that it is no longer all hands on
deck.
Mr. Hunter. That is correct.
Mr. Price. It is anybody who the union allows to come to
help the patient. Well that is not caring. That is not the way
we ought to be moving forward as a nation.
Mr. Feinstein states in his testimony that the Specialty
Healthcare decision isn't as great a change as you may think.
Mr. Oppenheim, what do you think about that?
Mr. Oppenheim. Well, obviously it is a big concern for us.
You know, we are job creators out there. We operate on very
tight margins and we need the flexibility in our organizations
in order to grow jobs, provide employees with opportunities
that they so desperately need.
Our employees come to us wanting responsibility, they want
to grow, and they don't want to be impeded, and if we had a
fragmented job situation in our restaurants, we wouldn't be
able to provide them with those opportunities to grow.
Mr. Price. Tell me--put some flesh on those bones. Tell me
why that is. What is it about the fragmentation that micro
unions would create at that decreases the ability of employees
and workers to grow?
Mr. Oppenheim. Well, obviously we are not talking about
nursing facilities here. We are talking about restaurants----
Mr. Price. I understand.
Mr. Oppenheim. But in my statement I gave an example of
someone who works front cashier and we cross-train all of our
employees and give them the ability to work in the back, to go
into the dining room and mop the floor, to service our guests,
whatever needs they are, and if we had a fragmented, you know,
job market, we wouldn't be able to give them the ability or ask
them to go out and do a job task that wasn't within their
scope.
So the other thing that we believe it would do it would
cause a lot of tension within the job market as you would have
different employees with different wages. They would have
different job scopes, and it would cause a lot of tension with
different bargaining units within a small restaurant of only 30
employees.
Mr. Price. So the ability of an employee or a worker to
actually improve themselves to move on up in the chain is
actually diminished.
Isn't that correct Mr. Hunter?
Mr. Hunter. Yes, Congressman Price. That is correct because
with work rules, I think you said, earlier the union is going
to argue that the work should go to members of the bargaining
unit and if anyone else outside of that bargaining unit try to
come in and do that work, the union is going to file a
grievance with the employer and even a charge with the NLRB.
Mr. Price. Mr. Oppenheim, you mentioned in your testimony
that the autonomy of a worker is actually limited by the
Specialty Healthcare decision. Why do you draw that conclusion?
Mr. Oppenheim. Well, as I mentioned previously, flexibility
is critical in our workforce. We need to have the ability to
encourage our employees to take on different tasks to work
different parts of our facility and we believe the Specialty
Healthcare decision would impede them from doing that.
Mr. Price. Thank you.
Thank you, Mr. Chairman.
Chairman Roe. Thank you. The gentleman's time has expired.
Mr. Grijalva?
Mr. Grijalva. Thank you very much, Mr. Chairman.
Mr. Oppenheim, let me--I have been following with a great
deal of curiosity and interest this campaign the organizing
campaign that is going on in various parts of the country here
in Washington about low-wage workers and an attempt to organize
those workers especially in the fast-food national chain issue.
You being the--having 19 franchises, I think you mentioned,
are any of those 19 presently being represented--those
employees represented by a union?
Mr. Oppenheim. No.
Mr. Grijalva. So--let me follow up. So where--so the points
that you spoke to are what you would project would happen
because at this point, there is no frame of reference, but--so
where do you get the evidence that the Specialty decision would
lead to the formation of all these micro bargaining units? What
is the evidence to that?
Mr. Oppenheim. My testimony is on behalf of 240,000 human
resources professionals from across the country.
Mr. Grijalva. Well, I am asking you for your practical day-
to-day hands-on 19 franchises experience as well.
Mr. Oppenheim. Yes, I have not worked in a union
environment.
Mr. Grijalva. And no particular interest in doing so in the
future I see, but I ask that question because a lot of it is
conjecture. If this happens, this is going to happen, and the
evidence that we have is to the contrary--that instead of a
proliferation of micro units, there seems to be a bigger
consolidation of the units that exist in terms of size and
membership.
I asked that question because I think that your frame of
reference as a practical frame of reference is important.
Mr. Feinstein. Congressman, if I can----
Mr. Grijalva. Quickly because I was going to----
Mr. Feinstein. Yes. I think that to some extent it feels
like we are talking past each other here.
The board in the Specialty Healthcare decision didn't say
we are now in favor of micro units. In my view, they didn't say
anything which would encourage micro units, so I am not here
today defending micro units.
The point is that this is a decision that does not in any
apparent way endorse it and the evidence suggests that as well.
Mr. Grijalva. I--going back to Chapman and the adjacent
facilities, health facilities provided in the area, Western
Medical, Kaiser; where Kaiser and Anaheim represented by a--by
a union and the difference in the pay that has been in Kaiser
goes from a minimum of $4 for a bidding representative more
than that is happening at Chapman; $12 for a respiratory
therapist more than its--and on down all the categories seems
that the employees at these two health providers as a
consequence of some representation have a salary scale from a
minimum of $4 to a maximum of $16 increases above and beyond
what is being paid at Chapman.
So my question, Ms. Felter, is, I understand your opinion
of unions and your effort at the facility you work in, is
there--how do you explain the markedly different hourly rates
between unionized facilities that are adjacent to and providing
essentially the same services and Chapman which is markedly
lower and has no representation?
Is that an outcome that is a positive one for the people
that work there?
Ms. Felter. As I stipulated before, we are a very, very
small hospital; 300 employees. Our evaluations are based on job
performances.
Mr. Grijalva. Well--I----
Ms. Felter. Our evaluations are based----
Mr. Grijalva. The hourly ratio doesn't bother you or bother
any other of the 300 that work with you?
Ms. Felter. Well, obviously not because we, you know, we
are happy with it. We are happy with what is going on there. We
are happy with an open door policy. We are happy with no
initiation fees.
Mr. Grijalva. I know. I----
Ms. Felter. We are happy without any union dues.
Mr. Grijalva. I know, I--you must be a much better person
than me because if I was working in the same job classification
doing the same thing----
Ms. Felter. You know, I prefer the open door policy where
you still have that communication with the managers.
Mr. Grijalva. I like to be paid for what I work. I don't
like to be paid less than.
Chairman Roe. The gentleman's time is expired.
Mr. Grijalva. Thank you.
Chairman Roe. I thank the gentleman.
Mrs. Brooks?
Mrs. Brooks. Thank you, Mr. Chairman.
This is to Mr. Oppenheim. I, prior to joining Congress, I
was at our state's community college system leading a division
of the college that focused on workforce training and worked
with a huge number of employers to try to raise the skill level
of their employees.
So that those, for instance, whether they were in a nursing
home or a hospital that maybe started it working in the kitchen
and had a desire to begin to work at a higher level in patient
care would have that opportunity to do that and would get that
training and be provided that training.
I want to go back to what we were talking about with
respect to how in your view Specialty Healthcare affects
employees and their opportunities to advance and their
opportunities to make more money within the organization and
improve their skills.
Can you please expand upon how your view is that Specialty
Healthcare impedes not just in your own business and fast food
business which many, many people get their start as it is often
their first job, and particularly within retail as well; it is
often many young people's first job.
And a lot of retailers in particular want to have the
opportunity to give young people a lot of cross training so
that they can advance within the organization and keep those
employees. Can you talk about why you are concerned that
Specialty Healthcare stunts professional growth?
Mr. Oppenheim. Thank you, Congresswoman. First of all, I
want to thank you for recognizing the fact that our industry
does provide a lot of first-time employment for a lot of our
youth and we are very proud of that. I will answer your
question with a quick story.
Yesterday, I sat down with two of my employees who started
out as crew members, started out in the kitchen making more
than minimum wage believe it or not, and worked their way up
over a number of years and now next week I will be putting them
into management where they will actually be more than doubling
their wages by going into a supervisory role.
I believe that could not have happened in an environment
where we had fragmentation in the workforce. I don't believe
that that would happen if we didn't have the ability to cross
train them, work them in multiple job scopes, and give them the
ability to move up in the workforce to gain the necessary
skills to move into management.
Not every employee wants to do that, but we want to create
an environment where that opportunity is there for every one of
our workers, and we feel that under the Specialty decision,
that may not happen.
Mrs. Brooks. And are there other--you indicated you were
here representing other organizations. Can you give us a
general idea? I have a number of logistics organizations in
my--or logistics companies--in my district and they are very
concerned specifically about this decision.
Are there other kinds of categories of employers that you
have talked to that have the same concern?
Mr. Oppenheim. Absolutely. As a representative for the
Society for Human Resource Management, we represent the views
of all employees, and as HR professionals, we view ourselves as
bridging the gap between management and employees, and that
role is very important to us.
And so we gather a lot of data, alot of anecdotal stories
of what is going on in organizations to help train employees
and move them up the economic ladder, and again, we feel that
this decision would impede our role as human resources
professionals to be that important cog in organizations.
Mrs. Brooks. How many members does SHRM have?
Mr. Oppenheim. Roughly 240,000 members.
Mrs. Brooks. And do you take surveys of those members on a
regular basis?
Mr. Oppenheim. Yes, I believe SHRM does, yes.
Mrs. Brooks. And does SHRM also come up with their
legislative agendas for each congressional session or each
legislative session?
Mr. Oppenheim. Yes, and I feel very privileged to work with
their legislative team. They are great professionals.
Mrs. Brooks. And can you close out by what you believe the
morale would be if people in your organizations were not
allowed due to micro units in their organizations--what would
happen to the morale in your employer organizations--employee
organizations?
Mr. Oppenheim. Yes, we would be very concerned that
employees wouldn't have the ability to earn a fair wage, to
move up the economic scale, to gain new skills, and there would
be less communication within the restaurant because all of
these employees would be functioning within the narrow scope of
employment and wouldn't have the ability to work other jobs and
other positions and we feel that that would have a negative
impact on the overall environment and the employee/employer
relationship in the workforce.
Mrs. Brooks. And when those kinds of employees aren't
happy, the customers usually aren't happy. Is that fair to say?
Mr. Oppenheim. That is correct, yes.
Mrs. Brooks. Thank you.
I yield back.
Chairman Roe. Gentlelady yields back.
Mr. Courtney?
Mr. Courtney. Thank you, Mr. Chairman.
And thank you to all the witnesses for being here today.
Mrs. Felter, I was again reading your amazing story and
your testimony here and one sort of part of the story sort of
jumped out at me which was the successful effort by you and
your attorney to block the subpoena issue with SEIU, and I
noted that it was a unanimous decision by the NLRB in May,
which you succeeded to make that case. Is that correct?
Ms. Felter. Yes, it was.
Mr. Courtney. Yes.
Now, Mr. Feinstein, just to sort of build on that,
obviously the NLRB when it hears cases it is not always unions
who are petitioning for relief under the National Labor
Relations Act.
I mean it also is individuals who again challenge union
behavior and union actions. Isn't that correct?
Ms. Felter. I understand----
Mr. Courtney. I asked Mr. Feinstein that question.
Ms. Felter. [Off mike.]
Mr. Feinstein. Yes, that is correct. I don't remember the
specific numbers, but it is somewhere, 20 to 25 percent of the
cases are cases initiated by employees or others challenging
union conduct.
Mr. Courtney. And, you know, when we are talking about the
whole issue of national relations act and where it is today,
with all due respect to my colleagues on the majority side,
these bills are going nowhere. I mean, they may pass the house,
but you know, it is headed for the circular file at that point.
The real issue that exists around the National Labor
Relations Act, the true uncertainty that exists for employers
and for the Ms. Felters in the world is the fact that we have a
board which is on the verge of just collapsing into paralysis
because of the obstructionism in the Senate to approve
nominees.
Isn't that correct, Mr. Feinstein?
Mr. Feinstein. Yes. I certainly share that concern as I
suggested and it is not only a question of the rights that are
vindicated by the board; are individuals like Ms. Felter and
others on all sides of these questions and all of that would be
up for grabs, but it is the confusion, the uncertainty.
Regardless, you know, people have different views of how
the law has functioned and how it has worked, but I think it is
hard to argue that having a framework, having a basic set of
rules for how labor-management relations and workplace conduct
should be carried out, having a referee is needed.
I mean, nobody has seriously suggested let's do away with
all of this, and I think there is a real concern that if this
agency collapses on some level if there are no members that the
uncertainty, the instability that it would cause in effect, no
rule of law on these issues around the country would have a
seriously destabilizing effect and who knows what those
implications would be for job creation and for growth and for
employers' solvency and profitability if some of these disputes
are--there is no mechanism for resolving them.
So I think, yes, this is a huge concern and certainly as I
said, I think we all hope that it doesn't come to pass.
Mr. Courtney. Because again, the case that Ms. Felter
brought, again, I think the kind of remarkable aspect of it was
a unanimous vote by the NLRB whose nominees are picked by
Democrats and Republicans so the notion that it somehow this
polarized agency that lines up in lockstep based on party
nomination with unions or employers. In fact, her case
demonstrates the opposite that they really do follow the rules,
and they apply the law objectively.
Mr. Feinstein. Yes, and I don't know what the current
numbers are, but I have seen in the past, and I think this is
true now as well that the majority of cases that the board
handles, a significant majority, are decided unanimously with
all of the members.
In fact, there was a period of time that when there were
just two members of the board, this subsequently the Supreme
Court said that they didn't have the authority to act, but they
were two members of the board, one Democrat, one Republican and
they decided amongst themselves that they would decide the
cases on which they could agree and that turned out to be most
of the cases which they considered over that period.
So, yes, I mean, sometimes we focus on the contentious
cases, the divisive cases, but as I say, the majority of cases,
the significant majority of cases are decided unanimously.
Mr. Courtney. Well, again, one of my colleagues mentioned
earlier that one of our tasks is oversight, and I couldn't
agree more. That is the problem right now. I mean, you know,
you look at the landscape of contested organizing issues right
now.
The real question is are we going to have a referee that
creates some set of expectations so people can negotiate
settlements or actually get resolution and this mindless
application of a 60-vote rule in the Senate, which again has
never been the case in prior, you know, congresses--I mean, it
has never been applied across the board the way the minority is
abusing it right now is the real threat to labor stability in
this country.
I yield back the balance of my time.
Chairman Roe. I thank the chairman for yielding.
Mr. Guthrie?
Mr. Guthrie. Thank you, Mr. Chairman. Thank you for this
meeting.
I know companies have different unions representing under
the same company. You would have a friend of mine, my college
roommate's dad was a warehouseman for Jordan Marsh and he was a
Teamster, and I am sure that the Jordan Marsh warehouse is
represented by the Teamsters. I am not sure the retail clerks
at the Jordan Marks store were, but they were kind of separate
business entities and separate units.
And if you go to a Ford Motor Company plant, whether you
are a millwright, a tool and die maker, or a laborer on the
assembly line represented by the UAW, you understand how that
keeps harmony within the plant because you don't have
different--so I think the concern is that, I guess--I was in
another hearing, Mr. Oppenheim, your restaurants are fast food
restaurants that you have?
Mr. Oppenheim. Yes, that is correct.
Mr. Guthrie. Like--do you mind saying the brand?
Mr. Oppenheim. Burger King.
Mr. Guthrie. Burger King? Okay. I know Burger King. I go--
we go to Burger King.
So would your concern be that it is inside the store level,
not that you are talking about Burger King truck drivers of
versus Burger King people working in the store but that unions
could organize a Burger King.
I think all of us can think about like the people who
worked the cash register versus--they can come in and say there
are four people that cook everyday, so we are going to organize
the cooks.
Mr. Oppenheim. That is correct.
Mr. Guthrie. My guess is your cook one day may run the cash
register the next. So the Specialty case you think would
actually get to that level? That is a real fear that you have
as a business owner?
Mr. Oppenheim. Yes, that is our concern. We are a small
family business. We operate on very tight margins and our
concern is that with a average restaurant having 30 employees
that you could theoretically be dealing with three or four or
five different bargaining units within one restaurant.
And that is where that fragmentation would inhibit our
ability to operate our business as well as inhibit our
employees' ability more importantly to gain the necessary
skills they need, the job skills to move up the economic
ladder.
Mr. Guthrie. Because I think it has always been like a
common interest that they have looked beyond, so like at the
store level is a common interest. At the--my example earlier if
you are a warehouse or a huge department store chain you are
separate then you are from the people who work in the
department store that you were--your--I guess Mr. Feinstein, I
know you are--do you think that--Feinstein is it, Feinstein?
Feinstein. I apologize.
Do you--would the Specialty case allow, I think we can all
in our minds picture who--go into a Burger King you got people
checking and people back packing the hamburgers, somebody
working the window that it would actually could get with inside
a store at the employee--at a smaller level?
Not just the store level, but finding something that will
let groups of people within the store if they are packing bags
or if they are running a register could call themselves a
bargaining unit?
So if he has 30 employees inside a store, that five or six
who daily run the register can make themselves a bargaining
unit?
Mr. Feinstein. Right. I should start by saying that I am
for upward mobility. I am for cross-training. I am for
flexibility within the workplace. And I also believe that that
frequently unionization, union representation are things that
enhance and contribute to those things because employees have a
voice, and I think you know we can point to many examples where
you have an organized workforce, which is a model workforce
because of all those things.
Mr. Guthrie. I agree with you, and I know that you want
people to move upward. I am not--that wasn't even where I was
going. But can there be micro units do you think within a
Burger King? Can that happen?
Mr. Feinstein. Well again, the test that would be applied
by the agency is the test that they have applied for decades
and that is, is there a community of interest and there is a
list of several other factors. Is this an appropriate unit?
Do the employees share a community of interest, and I think
it is difficult to give a specific answer because it depends on
the specific facts. What do people do? How do they relate to
each other?
But my point is the determination, the test that the agency
would apply is the test that they have always applied, that
Specialty Healthcare didn't change that. Specialty Healthcare
said endorsed in the context of nursing homes, the test that
applies to all workplaces and would apply in this situation and
again, it is multifaceted.
Mr. Guthrie. So it is possible. That is just the concern
that I would--and I have worked in a union facility, and it
does have like these jobs are this certain bargaining unit and
these jobs are--and this was a 400-person facility and it kind
of makes sense that some were hourly, some were salary, and you
could come----
It was UAW so everybody was under the same rules or
whatever, but I could see if you started saying our tool and
die makers are under this rule, our industrial maintenance are
under this rule, our line workers are under this rule, that it
would be difficult to manage, and those are things we really
need to be concerned about.
Mr. Feinstein. Yes, and I don't, I mean, I don't know this
for a fact, but my guess is that if a union were organizing in
the context of this, that their preference would be a wall-to-
wall unit as well because, you know, it might be the
appropriate unit. It might work well. I don't know that for a
fact but I, you know, my experience suggests that that would
probably be their first choice.
Chairman Roe. The gentleman's time is expired.
Ms. Wilson?
Ms. Wilson of Florida. Thank you, Mr. Chairman, for holding
this hearing.
My question is for Mr. Taubman. On page three of your
testimony you say that companies across the nation are being
browbeaten and coerced into accepting a voluntary agreement
with their employees to accept a union.
Can you provide me a list of companies in the past 5 years
that signed such an agreement and now claim they were
browbeaten by their employees?
Mr. Taubman. I can provide you a list, Congresswoman, of
companies that have signed such agreements, but I would imagine
that they wouldn't want to publicly admit at this point now
that they are saddled with the union that they were browbeaten
into it.
I don't think that they would want to publicly say it that
way, but that is a fact, and the Supreme Court case that was
just granted cert, Unite Here versus Mulhall is going to bring
out quite a bit of amicus briefs and other briefs from
companies that are going to talk about how they were pressured
through illicit corporate campaigns and threats of bad PR and
all of this whole array of tactics to sign these neutrality
agreements.
And again, what we are talking about here is did anybody
ask the employees of any of these companies if they wanted
secret ballot elections waived? Did anyone ask them if they
should have their private phone numbers given up to union
organizers? No.
So a company is going to admit that? Many won't, but that
is the fact, and there is a record and if you want----
Ms. Wilson of Florida. It seems----
Mr. Taubman. If you want me to provide more evidence, I
will do my best----
Ms. Wilson of Florida. Please.
Mr. Taubman [continuing]. To put it together.
Ms. Wilson of Florida. Okay. A good deal of your testimony
seems to be critical of employers who want to cooperatively
work with employees to create a union. In fact, you seem to
suggest over the years there is some kind of a vast conspiracy
of employers and unions cutting secret backroom deals.
Are you really saying to this committee that one of the
nation's top problems is the labor peace is breaking out as
employers choose to enter into voluntary agreements with their
employers?
Are you saying to us that America's employers are not
powerful or smart enough to enter into mutually beneficial
agreements with their employees? I don't think that is true. Do
you? Do you think that is true?
Mr. Taubman. I think employers are perfectly capable,
generally, of taking care of themselves, and I represent
employees only. So I see the fallout of this. I am not an
employer attorney. They have to deal with their own problems.
But I will cite you Exhibit 3 of my testimony which is a
recent law review article by two law professors at Hastings Law
School who I would put on let's say the liberal side of the
spectrum, and they agree with my analysis that neutrality
agreements provide illegal top-down support from employers to
unions and they agree with my analysis that these sorts of
neutrality agreements violate Section 302 because there are
illegal things of value given from employers to unions.
That is the issue that the Supreme Court will be deciding
next term. So there is plenty of empirical evidence out there
about these things and it doesn't just come from me and the
national right to work. These are neutral to let us say more
liberal scholars that are writing that there is something wrong
here.
Ms. Wilson of Florida. Thank you.
Mr. Feinstein, Feinstein, isn't there evidence that unions
formed voluntarily have a better chance of being harmonious
meaning more satisfying for the employees and more productive
for the employers than hotly contested ballot elections?
Mr. Feinstein. Yes, there is evidence, and I cite
specifically some of that in my written testimony. I think that
what those who have studied this matter find is that when this
process of unionization is conducted in a manner that is
respectful where the employer and the employees through the
union agree to be respectful, agree to have a balanced approach
letting both sides presented their case that sometimes the
union wins, sometimes it loses.
But when the employees vote for unionization, the kind of
labor relations that ensues, the relationship between the
employees, is more productive, is considered to be more
successful when it arises out of this more kind of a respectful
process where the employer and the employees have agreed to
these kinds of agreements.
There is also considerable evidence of the opposite, that
is when the campaign is very contentious, when there is great
hostility, when there is no kind of a prior understanding of
how this campaign will be ensued that frequently again, win or
lose, the relations and the success of that workplace suffer.
Chairman Roe. Gentlelady's time has expired.
I would like to again thank the witnesses for taking your
time to, and in many cases travel across the country to testify
before the committee.
I will now yield to our ranking member, Mr. Andrews, for
closing remarks.
Mr. Andrews. Thank you, Mr. Chairman.
I would like to thank the witnesses for their preparation
and their time this morning for traveling to be with us and for
our members on both sides for participating.
I am not sure what the official count is, but I think we
are still in the neighborhood of 8 million to 9 million
unemployed people in our country officially, and that is the
number one problem in the country as far as I am concerned that
the Congress on both sides should be paying attention to. But
we didn't today.
And there is a problem in labor law, a monumental problem,
and that is that the agency that Ms. Felter was able to get
relief from was able to be successful in essentially can't
operate today because it doesn't have a quorum on its board and
doesn't have a quorum on its board because the Senate is unable
to take a vote on the people who have been nominated to lead
that board.
It is not a matter of whether the Senators agree or
disagree with President Obama's nominees, it is that they won't
even put them up for a vote so we can have them considered.
So when you hear a story like Ms. Felter's, and you realize
that the agency has to operate so it can hear the facts and
render a judgment as it has in her efforts. Can't do that today
because of the paralysis in the Senate.
Then we have two claims. One from Mr. Taubman that most of
the corporate--most of the neutrality agreements result--are
the result of coercive practices, but there is no record to
back that up other than his personal anecdotes, which are rich,
but not complete by any stretch of the imagination.
Then we have Mr. Hunter alleging that the Specialty
Healthcare decision is going to wreak havoc on small employers
because there is going to be this outburst of micro bargaining
units, but the record since the decision shows that in fact,
the median size of the bargaining units has gone up, not down.
It is one thing to focus on a problem and get it right, but
that is not what happened here today because a lot of the
discussion went off in a different direction, but I think that
we are kind of focusing on the wrong problem.
The real issue is whether or not we have investment,
entrepreneurial growth, and more jobs for our country, and I
would just respectfully suggest that hearings like today don't
really contribute very much to that although the witnesses
certainly contributed a lot to our understanding of this
problem, and I appreciate their participation.
Thank you.
Chairman Roe. I thank the gentleman for yielding, and I
agree with my ranking member, Mr. Andrews, that jobs are the
single most important issue and we will have an opportunity
this week to vote on two energy bills, and I hope you will
support those because they will create jobs.
I also put a uniform on 40 years ago this year, left this
country, and served just south in the demilitarized zone in
second infantry division in Korea.
I got a chance to see a country that didn't have a
democracy when I was there that had a military dictator and now
they have a freely-elected Prime Minister president and they
have a free country with 50 million free people. Why? Because
they have a secret ballot now. They can vote with whom they
want. They have just elected their first female president in
that country; 50 million free people.
The president of the United States was elected with a
secret ballot. The senators, the congressman, the union
officials are elected with a secret ballot. Why can't employees
elect to have or not have a union using a secret ballot?
I cannot understand the argument, and it is a false
narrative to say that you can't carry on a respectful campaign
and have a secret ballot. I have carried on several respectful
campaigns in my district with--and been respectful to my
Democratic opponents and was able to convince people to vote
for me.
The unions win most of these elections; the majority of
them. So there should be no fear. There should be embracement,
embracement of a secret ballot in this nation. It is the most
precious thing we have that when you walk behind that curtain
you can vote your conscience.
I would certainly appreciate the members of the panel
today. You have done a terrific job.
And I thank my ranking member as always; does a terrific
job.
And having nothing further, this meeting is adjourned.
[Whereupon, at 11:49 a.m., the subcommittee was adjourned.]