[House Hearing, 112 Congress]
[From the U.S. Government Printing Office]
H.R. 3094, THE WORKFORCE DEMOCRACY AND FAIRNESS ACT
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
HEARING HELD IN WASHINGTON, DC, OCTOBER 12, 2011
Serial No. 112-43
Printed for the use of the Committee on Education and the Workforce
Available via the World Wide Web:
Committee address: http://edworkforce.house.gov
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee Rush D. Holt, New Jersey
Richard L. Hanna, New York Susan A. Davis, California
Todd Rokita, Indiana Raul M. Grijalva, Arizona
Larry Bucshon, Indiana Timothy H. Bishop, New York
Trey Gowdy, South Carolina David Loebsack, Iowa
Lou Barletta, Pennsylvania Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
C O N T E N T S
Hearing held on October 12, 2011................................. 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Prepared statement of.................................... 3
Kucinich, Hon. Dennis J., a Representative in Congress from
the State of Ohio, prepared statement of................... 111
Miller, Hon. George, senior Democratic member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 6
Statement of Witnesses:
Cohen, Charles I., senior counsel, Morgan, Lewis & Bockius
Prepared statement of.................................... 9
Hunter, Michael J., partner, Hunter, Carnahan, Shoub, Byard &
Prepared statement of.................................... 23
Sullivan, Robert G., on behalf of the Retail Industry Leaders
Association (RILA)......................................... 16
Prepared statement of.................................... 17
Russell, Phillip B., shareholder, Ogletree, Deakins, Nash,
Smoak & Stewart, P.C....................................... 29
Prepared statement of.................................... 31
Letters of support:
Stevens, Corinne M., senior director, legislative
affairs, Associated Builders and Contractors (ABC). 68
Coalition for a Democratic Workplace................. 70
Trauger, Joe, vice president, human resources policy,
National Association of Manufacturers (NAM)........ 74
Yager, Daniel V., chief policy officer & general
counsel, HR Policy Association..................... 75
H.R. 3094, the Workforce Democracy and Fairness Act...... 112
Grant, Chris, Schuchat, Cook & Werner, prepared statement
``Staying Union-free in a Pro-union World,'' slide
H.R. 3094, THE WORKFORCE
DEMOCRACY AND FAIRNESS ACT
Wednesday, October 12, 2011
U.S. House of Representatives
Committee on Education and the Workforce
The committee met, pursuant to call, at 10:04 a.m., in room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, Petri, Biggert, Goodlatte,
Roe, Thompson, Walberg, DesJarlais, Rokita, Bucshon, Gowdy,
Barletta, Roby, Heck, Ross, Miller, Kildee, Payne, Andrews,
Woolsey, Hinojosa, McCarthy, Kucinich, Holt, Bishop, Loebsack,
Hirono and Tierney.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce
Policy Counsel; Barrett Karr, Staff Director; Ryan Kearney,
Legislative Assistant; Brian Newell, Deputy Communications
Director; Krisann Pearce, General Counsel; Todd Spangler,
Senior Health Policy Advisor; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Alissa Strawcutter, Deputy
Clerk; Loren Sweatt, Senior Policy Advisor; Kate Ahlgren,
Investigative Counsel; Aaron Albright, Communications Director
for Labor; Daniel Brown, Junior Legislative Assistant; Jody
Calemine, Staff Director; Brian Levin, New Media Press
Assistant; Celine McNicholas, Labor Counsel; Richard Miller,
Senior Labor Policy Advisor; Michele Varnhagen, Chief Policy
Advisor/Labor Policy Director; and Michael Zola, Senior
Chairman Kline. A quorum being present, the committee will
come to order. Good morning. Welcome to the committee's
legislative hearing on H.R. 3094, the Workforce Democracy and
I would like to thank our witnesses, all four, for joining
us today. We are here today for one simple reason. The National
Labor Relations Board is wreaking havoc on the nation's
workforce, and it must be stopped. In recent months, the NLRB
has taken a number of steps that move federal labor policy in a
radically new direction.
Under the board's ambush elections proposal, employers will
have just 7 days to find legal representation and prepare the
case they must present before an NLRB election officer. If they
fail to raise an issue before the start of a preelection
hearing, with few exceptions employers lose the ability to
address a concern during the hearing process.
Let me just raise this little tome right here. This is what
an employer is supposed to be able to navigate--``How to Take a
Case Before the NLRB,'' 8th Edition. Seven days. Workers will
also be harmed by this troubling change in policy. The board's
proposal would leave employees with as little as 10 days to
consider all the consequences of joining the union before
casting a ballot.
Additionally, the board's plan would delay answers to
questions often critical to an employee's decision, and
undermine employer access to a fair hearing. When coupled with
its Specialty Healthcare decision, which enables union leaders
to manipulate the workplace for their own gain, it becomes
clear the board is promoting unionization by stifling
employers' free speech and crippling workers' free choice.
I am open to ideas that will modernize the election
process, but those efforts should never undermine the
fundamental rights of employees and employers. Expansive
changes to workforce policy should be vetted by the people's
elected representatives, first by this committee and then by
the full Congress.
Hundreds of millions of workers and employers will be
forced to live with the consequences of these dramatic changes,
and they deserve a congressional response. The legislation
before us today will require the NLRB to change course and
reaffirm key protections workers and employers have received
The Workforce Democracy and Fairness Act provides employers
at least 14 days to prepare for the election hearing, thereby
ensuring access to a full and fair hearing. This provision
removes an arbitrary deadline and restores board discretion
over the election process. By affording workers at least 35
days to hear both sides of the debate before casting their
ballot, the legislation guarantees their ability to make an
In addition to these workforce protections, H.R. 3094 also
reinstates the traditional stand for determining which
employees will participate in union representation and an
individual's ability to request board review before the
election takes place.
Finally, the bill safeguards privacy by empowering workers
to determine the personal information provided to the union. As
we saw with the release of the latest employment data last
week, our nation is still struggling to create the jobs we so
desperately need. The American people have asked Congress to do
everything possible to encourage economic growth and
While some may insist this can only come through more
temporary stimulus spending and permanent tax increases, my
colleagues and I know the one thing business owners and
entrepreneurs need right now is certainty. The policies
advanced by the NLRB are dramatically increasing the pressure
and uncertainty facing business owners, making it more
difficult to create jobs and plan for the future.
One employer in particular has voiced his concern about the
board's actions and the implication it bears on the economy.
Michael Whalen is the founder of Heart of America Group, a
business that operates hotels and restaurants throughout the
Midwest and employees 3,000 workers.
In the days before the release of the board's ambush
election proposal, he wrote, quote--``The impact of this
decision is clear. American businesses will have yet another
reason to invest elsewhere rather than creating new jobs here
at home.'' Rather than doubling down on the failed policies of
the past, we have a responsibility to remove the regulatory
hurdles facing employers.
Congress can either support an activist agenda, or listen
to the voices of employers like Michael Whalen, who strive
every day to grow their businesses and create new opportunities
for America's workers.
I look forward to the hearing this morning, hearing the
views of our excellent panel of witnesses, and will now yield
to the senior Democratic member of the committee, Mr. Miller,
the gentleman from California, for his opening remarks.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Chairman,
Committee on Education and the Workforce
Good morning, and welcome to the committee's legislative hearing on
H.R. 3094, the Workforce Democracy and Fairness Act. I would like to
thank our witnesses for joining us.
We are here today for one simple reason: the National Labor
Relations Board is wreaking havoc on the nation's workforce and it must
be stopped. In recent months, the NLRB has taken a number of steps that
move federal labor policy in a radically new direction.
Under the board's ambush elections proposal, employers will have
just seven days to find legal representation and prepare the case they
must present before an NLRB election officer. If they fail to raise an
issue before the start of a pre-election hearing, with few exceptions
employers lose the ability to address the concern during the hearing
Workers will also be harmed by this troubling change in policy. The
board's proposal would leave employees with as little as 10 days to
consider all the consequences of joining a union before casting a
ballot. Additionally, the board's plan would delay answers to questions
often critical to an employee's decision and undermine employer access
to a fair hearing. When coupled with its Specialty Healthcare decision,
which enables union leaders to manipulate the workplace for their own
gain, it becomes clear the board is promoting unionization by stifling
employers' free speech and crippling workers' free choice.
I am open to ideas that will modernize the election process, but
those efforts should never undermine the fundamental rights of
employees and employers. Expansive changes to workforce policy should
be vetted by the people's elected representatives--first by this
committee, and then by the full Congress. Hundreds of millions of
workers and employers will be forced to live with the consequences of
these dramatic changes and they deserve a Congressional response.
The legislation before us today will require the NLRB to change
course and reaffirm key protections workers and employers have received
for decades. The Workforce Democracy and Fairness Act provides
employers at least 14 days to prepare for the election hearing, thereby
ensuring access to a full and fair hearing. This provision removes an
arbitrary deadline and restores board discretion over the election
process. By affording workers at least 35 days to hear both sides of
the debate before casting their ballot, the legislation guarantees
their ability to make an informed decision.
In addition to these workforce protections, H.R. 3094 also
reinstates the traditional standard for determining which employees
will participate in union representation and an individual's ability to
request board review before the election takes place. Finally, the bill
safeguards privacy by empowering workers to determine the personal
information provided to the union.
As we saw with the release of the latest employment data last week,
our nation is still struggling to create the jobs we so desperately
need. The American people have asked Congress to do everything possible
to encourage economic growth and investment. While some may insist this
can only come through more temporary stimulus spending and permanent
tax increases, my Republican colleagues and I know the one thing
business owners and entrepreneurs need right now is certainty.
The policies advanced by the NLRB are dramatically increasing the
pressure and uncertainty facing business owners, making it more
difficult to create jobs and plan for the future. One employer in
particular has voiced his concerns about the board's actions and the
implications it bears on the economy.
Michael Whalen is the founder of Heart of America Group, a business
that operates hotels and restaurants throughout the Midwest and employs
3,000 workers. In the days following the release of the board's ambush
election proposal, he wrote, ``The impact of this decision is clear:
American businesses will have yet another reason to invest elsewhere
rather than in creating new jobs here at home.''
Rather than doubling-down on the failed policies of the past, we
have a responsibility to remove the regulatory hurdles facing
employers. Congress can either support an activist agenda or listen to
the voices of employers like Michael Whalen, who strive every day to
grow their businesses and create new opportunities for America's
I look forward to hearing the views of our excellent panel of
witnesses, and will now yield to the Senior Democratic Member of the
committee, Mr. Miller, for his opening remarks.
Mr. Miller. Thank you very much, Mr. Chairman. Today this
committee meets for the fifth time this year on the issues
relating to the National Labor Relations Board. Rather than
focusing on getting Americans back to work, the majority is
stubbornly continuing their ideological war against workers and
their unions, with the majority's laser-like focus on the
special interest battle, one could be led to think that our
economic problems are the American, and his or her rights at
That the worker who exercises his or her right to bargain
for a better life is bringing America's business to its needs.
That a group of employees who ask for safe working conditions
have created high unemployment. Or that a massive economic
uncertainty is ensuing because employers may have to put up a
poster outlining the rights under the National Labor Relations
Of course, this is complete nonsense. Our nation's workers
exercising their rights did not cause the current economic
problems. We all know what did. By exercising their rights,
they help build the middle class. These rights have been on the
books for more than 75 years, and are not now all of a sudden
causing this uncertainty.
We should, however, be certain about one thing. Working
families are hurting through no fault of their own, and need
this Congress to take action to create jobs. Instead of
addressing their concerns, we are discussing a bill that should
be even more appropriately named the ``Election Prevention
Act'' because it does just that.
Its singular goal is to delay, and openly prevent, union
representation elections. This legislation with regard to
elections is a little bit like that cab in Compton. It is
always coming, but it never arrives. And the idea is to deny
workers' opportunity and their voice at work.
The Election Prevention Act does this in three key ways.
First, rather than minimizing undue delay in elections, a long-
standing problem because of the current law's loopholes, the
Republican bill mandates delays. In provision after provision,
the bill's overarching concern is that workers' choice be
postponed with mandatory waiting periods.
Second, rather than discovering frivolous litigation, the
Election Prevention Act encourages it. Unscrupulous employers
will have an incentive to appeal all preelection decisions
regardless of merit because no election could proceed until all
appeals, frivolous or not, are reviewed. They and their union-
busting consultants know that the delay gives them more time to
use any means legal or illegal to overcome employee interest in
forming a union.
These appeals will create a massive, wasteful backlog on
the taxpayer's dime, and a mountain of frivolous litigation. As
a result, workers will increasingly have to wait months or
years for an election. And as the months and years tick by,
this bill clearly hopes that those workers will simply give up.
Third, the bill manipulates the procedure for deciding who
is in a bargaining unit. Employers will have a larger role in
determining who can potentially be part of the union, rather
than the workers and the union that they seek to join. The
practical impact of this change is that employers are going to
find it much easier to gerrymander elections.
It will increase the changes of an election ultimately
never being ordered, and employers will stuff the ballot box
with voters who were never engaged by the organizing drive. In
summary, by favoring delay at every turn this bill denies
workers their rights to a free and fair election. It is a
cynical bill, it takes time away from what we should be doing.
We should be acting on America's most urgent priority of
creating jobs, instead of undermining workplace democracy. This
bill does not help a single laid off worker get retained in a
new career, and it does not create a single construction job or
an education job.
It does create a lot of work for union-busting law firms.
They get to file frivolous appeals on the taxpayer dime. It
does make it harder for workers to have a voice at work. It
does make it harder for working people to rebuild the middle
class. Cynical misnamed bills like this only increase
discontent among those who sent us here.
They see a special interest bill getting the time of day,
while they struggle to keep a roof over their heads. Is it any
wonder Congress has such a historical low approval rate? It is
well past the time to get back on track and work on the side of
middle class Americas.
That is precisely why I asked this committee to take
immediate action on President Obama's job bill nearly a month
ago. It is the only comprehensive bill that will immediately
create jobs, that will lay a foundation for future economic
growth. And it is fully paid for.
But the majority has done nothing, and that is why I have
asked Americas to write and tell us how the economy is
impacting them. Over 2 weeks, more than 700 people throughout
the country wrote in. Reading their responses, there is no lack
of motivation on the part of the unemployed Americas. They want
us to act on jobs now so that they can start earning a
But the time is running short. The longer we ignore the
millions of Americas struggling in this economy the worse that
economy will get--more foreclosures, more layoffs, and higher
deficits. This committee should be doing everything we can to
get Americas back to work, not taking away their rights at
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
Good morning, Chairman Kline.
Today, this committee meets for the fifth time this year on issues
relating to the National Labor Relations Board. Rather than focusing on
getting Americans back to work, the majority is stubbornly continuing
their ideological war against workers and their unions.
With the majority's laser-like focus on this special interest
battle, one could be led to think our economic problems are the
American worker and his or her rights:
That a worker who exercises his or her right to bargain
for a better life is bringing American business to its knees.
That a group of employees who ask for safer working
conditions have created high unemployment.
Or, that massive economic uncertainty is ensuing because
employers may have to put up a poster outlining rights under the
National Labor Relations Act.
Of course, this is complete nonsense. Our nation's workers
exercising their rights did not cause our current economic problems. By
exercising their rights, they helped build the middle class.
These rights that have been on the books for more than 75 years are
not now all of a sudden causing `uncertainty'.
We should, however, be certain about one thing: Working families
are hurting through no fault of their own and need this Congress to
start paying attention. Instead of addressing their concerns, we are
discussing a bill that should be more appropriately named the `Election
Prevention Act' because it does just that.
Its singular goal is to delay and ultimately prevent union
representation elections. Its aim is to deny workers the opportunity
for a voice at work.
The `Election Prevention Act' does this in three key ways.
First, rather than minimizing undue delay in elections, a long-
standing problem because of the current law's loopholes, the Republican
bill mandates delay. In provision after provision, the bill's
overarching concern is that workers' choice be postponed with mandatory
Second, rather than discouraging frivolous litigation, the Election
Prevention Act encourages it. Unscrupulous employers will have an
incentive to appeal all pre-election decisions, regardless of merit,
because no election could proceed until all appeals, frivolous or not,
They and their unionbusting consultants know that delay gives them
more time to use any means, legal or illegal, to overcome employee
interest in forming a union.
These appeals will create a massive, wasteful backlog on the
taxpayer's dime and a mountain of frivolous litigation. As a result,
workers will increasingly have to wait months or years for an election.
And as the months and years tick by, this bill clearly hopes that those
workers will just give up.
Third, the bill manipulates the procedure for deciding who is in a
bargaining unit. Employers will have a larger role in determining who
can potentially be a part of a union, rather than the workers and the
union they seek to join.
The practical impact of this change is that employers are going to
find it much easier to gerrymander elections. It will increase the
chances that an election is ultimately never ordered, and employers
will stuff the ballot boxes with voters who were never engaged by the
In summary, by favoring delay at every turn, this bill denies
workers their right to a free and fair election. It's a cynical bill
that takes time away from what we should be doing.
We should be acting on America's most urgent priority of creating
jobs, instead of undermining workplace democracy. This bill doesn't
help a single laid off worker get retrained for a new career. It
doesn't create a single construction job or education job.
It does create a lot of work for unionbusting law firms. They get
to file frivolous appeals on the taxpayer dime. It does make it harder
for workers to have a voice at work. And it does make it harder for
working people to rebuild the middle class.
Cynical, misnamed bills like this only increase discontent among
those who send us here. They see special interest bills getting the
time of day, while they struggle to keep a roof over their heads. Is it
any wonder Congress has such a historically low approval rating?
It's well past time to get back on track and work on the side of
middle class Americans.
That's precisely why I asked that the committee take immediate
action on President Obama's jobs bill nearly a month ago. It's the only
comprehensive bill that will immediately create jobs and will lay the
foundation for future economic growth. And, it's fully paid for.
But, the majority has done nothing.
That's why I asked Americans to write in and tell us how the
economy is impacting them. Over two weeks, more than 700 people from
throughout the country wrote in. Reading the responses, there's not a
lack of motivation on the part of unemployed Americans. They want us to
act on jobs now so they can start earning a paycheck, not a handout.
But, time is running short. The longer we ignore the millions of
Americans struggling in this economy, the worse it will get. More
foreclosures, more layoffs and higher deficits.
This committee should be doing everything we can to help get
Americans back to work, not taking away their rights.
Chairman Kline. I thank the gentleman. Pursuant to
committee rule 7-C, all committee members will be permitted to
submit written statements to be included in the permanent
hearing record. Without objection, the hearing record will
remain open for 14 days to allow statements, questions for the
record, and other extraneous material referenced during the
hearing to be submitted in the official hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses. First, Charles I. Cohen is currently senior
counsel at Morgan Lewis. From 1994 to 1996, Mr. Cohen served as
a member of the National Labor Relations Board. Prior to being
appointed by President Clinton, he held executive and staff
labor law positions with the NLRB as well as in private
Bob Sullivan is president of RG Sullivan Consulting. Prior
to forming his own consulting group in 2009, Mr. Sullivan was
vice president and associate general counsel for one of the
nation's largest privately-held companies.
Michael Hunter is a partner with Hunter, Carnahan, Shoub,
Byard & Harshman. After working as a union organizer and local
union president, Mr. Hunter began practicing union-side labor
law in 1985. He represents unions in the private and public
And now let me turn to my colleague from Florida, Mr. Ross,
to introduce our final witness. Mr. Ross?
Mr. Ross. Thank you, Mr. Chairman. I am happy to introduce
a fellow Floridian, Mr. Phillip Russell. Phil is a shareholder
at Ogletree Deakins, a law firm which was founded in 1977 and
has offices in 23 states. Phil had been designated an
employment super-lawyer for the past 2 years, a distinction
which places him among the top 5 percent of all attorneys in
He also maintains an AV peer review rating from Martindale-
Hubbell, the highest rating possible. Phil believes in
protecting employers' investments in their people, and has
earned a reputation as one of the leading labor attorneys in
Florida. I very much appreciate his willingness to testify
before us today, and am happy to welcome him here.
I yield back.
Chairman Kline. Thank the gentleman. Welcome to all of you.
Before I recognize each of you to provide your testimony, let
me again briefly explain our lighting system. You will each
have 5 minutes to present your testimony. When you begin, the
light in front of you will turn green. When one minute is left
the light will turn yellow. And when your time has expired the
light will turn red, at which point I would ask you to wrap up
your remarks as best that you are able.
After everyone has testified, members will each have 5
minutes to ask questions of the panel. You will find that I am
reluctant to drop the gavel while you are still speaking. I
will be less reluctant with my colleagues on both sides of the
aisle. But I would encourage you, when you see that light go
red to try to move quickly to wrap up that testimony.
Let us start with Mr. Cohen.
STATEMENT OF CHARLES COHEN, SENIOR COUNSEL, MORGAN, LEWIS &
BOCKIUS, LLP, FORMER MEMBER, NATIONAL LABOR RELATIONS BOARD
Mr. Cohen. Chairman Kline, Ranking Member Miller, and
members of the committee, thank you for your invitation to
participate in this hearing. I am honored to appear before you
The Workplace Democracy and Fairness Act would restore the
critical role that Congress should play in formulating our
national labor and employment policy. The legislation
constitutes a measured response to actions by a majority of the
NLRB members, especially over the past 4 months, that would
substantially change our federal laws without an appropriate
mandate from Congress.
In my testimony today, I will describe why congressional
action is needed to restore the law, and procedures guaranteed
by the NLRA. On June 22 of this year the NLRB published an
extensive proposed rule regarding union elections that would,
among other things, dramatically shorten the period of time
between a union filing and election petition with the board and
the actual holding of the election.
The proposed rule would also effectively gut an employer's
ability to mount a lawful, effective information dialogue with
its employees on whether or not to select union representation.
What has the board come up with in these proposed rules?
It has proffered the gimmick of an emasculated hearing,
summary judgment standards, offers of proof, preclusive rules
to limit issues, regional director decisions devoid of
explanation at time of issuance, and frenetic time deadlines
that disregard other obligations of employers and their
counsel--all in an attempt to get to that election as soon as
humanly possible and without giving the employer time to
communicate with its employees.
Boardmember Brian Hayes, dissenting from the issuance of
the proposed rules, wrote, quote--``Make no mistake. The
principle purpose of this radical manipulation of our election
process is to minimize, or rather to effectively eviscerate, an
employer's legitimate opportunity to express its views about
By definition, this is a quickie election, as that term was
used liberally throughout the debate over the Employee Free
Choice Act and potential alternative legislation in the 111th
Congress. Nor is the election process too slow. Over the past
decade, as noted in the proposed rule, elections have occurred
within a median time of 38 days after the filing of a petition.
And in fiscal year 2010, the average time from petition to
an election was 31 days. Because employers exercise no control
over pre-petition union activities, because unions always have
only needed to select an appropriate unit rather than the most
appropriate unit, and often because employers have no knowledge
of union organizing attempts that occur employers exclusively
bear the burdens and limitations resulting from this proposed
shorter election period.
This renders disingenuous the proposed rule statement that
its changes would apply equally to all parties, and do not
impose any limitations on the election-related speech of any
party. Turning now to Specialty Healthcare, the board's June 22
rule is not the only problematic issue that I believe brings us
As representatives who stand for election, you
instinctively know that if you control who comprises the
electorate, including reducing the size of the electorate to
artificially low numbers, you will have a key to winning an
election. That is what the NLRB has done for unions. On August
26 this year, in Specialty Healthcare, the board announced a
new standard for determining whether a petition for unit of
employees is appropriate for collective bargaining.
For decades, when determining if an exclusion is
appropriate, the board has examined whether the excluded group
of employees is sufficiency distinct to warrant their
exclusion. The board's new standard in Specialty Healthcare,
however, reverses that inquiry so that employers will have the
burden of proving that the excluded employees share an
overwhelming community of interest with the employees included
in the union's petition.
The board's new standard, predictably, will facilitate
union organizing by rendering appropriate extremely small
bargaining units, even though employees perform work functions
and are managed in a manner that logically connects them to the
This measured legislative proposal is needed to restore the
proper functioning of the NLRB's election procedures and to
reaffirm that Congress is responsible, in the first instance,
for establishing and making any fundamental changes in our
national employment labor law policy.
Based on my review, the Workplace Democracy and Fairness
Act essentially seeks a return to the status quo of the long-
standing and effective election procedures that have been in
place at the NLRB. The legislation introduced would codify a
reasonable time framework for conducting NLRB elections--
reasonable for employers, employees, and unions.
Under this language, the required pre-election hearings may
not be held until at least 14 days after the filing of the
petition, which ensures that all parties have at least some
time to analyze the issues involved, and prepare for the
potential hearing. The election could not take place within 35
days, also a reasonable period of time.
This concludes my prepared testimony. Thank you again for
the invitation to appear today. I would be happy to answer any
questions that members of the committee have.
[The statement of Mr. Cohen follows:]
Prepared Statement of Charles I. Cohen, Senior Counsel,
Morgan, Lewis & Bockius LLP
Chairman Kline, Ranking Member Miller, and Members of the
Committee, thank you for your invitation to participate in this
hearing. I am honored to appear before you today.
By way of introduction, I am a senior counsel in the law firm of
Morgan, Lewis & Bockius LLP, where I represent employers in many
industries under the National Labor Relations Act (NLRA). From 1994 to
1996, I had the privilege of serving as a Member of the National Labor
Relations Board (NLRB or Board), and was appointed by President Clinton
and confirmed by the U.S. Senate.\1\
The Workforce Democracy and Fairness Act (H.R. 3094) would restore
the critical role that Congress should play formulating our national
labor and employment policy. The legislation constitutes a measured
response to actions by a majority of NLRB Members, especially over the
past four months, that would substantially change our federal labor
laws without an appropriate mandate from Congress. In my testimony
today, I will describe why Congressional action is needed to restore
the law and procedures guaranteed by the NLRA.
A. NLRB's Attempt to Pass Labor Law Reform Through New Regulations
On June 22, 2011, the NLRB published an extensive Proposed Rule
regarding union elections (``Proposed Rule'') that would, among many
things, dramatically shorten the period of time between a union filing
an election petition with the Board and the actual holding of the
election.\2\ The Proposed Rule also would effectively gut an employer's
ability to mount a lawful, effective information dialogue with its
employees on whether or not to select union representation.
The Proposed Rule is a transparent attempt to circumvent Congress
on the issue of how, if at all, to reform the nation's labor laws after
the failure of the prior 111th Congress to pass the Employee Free
Choice Act (EFCA), legislation supported by the labor movement that
would have all but ended secret ballot elections at the NLRB in favor
of ``card check'' recognition.
In greater detail, the Board's Proposed Rule would result in an
array of changes to decades-old representation procedures under the
NLRA. These are not merely technical changes--they would dramatically
shorten the time for employees to decide whether or not to vote for
union representation, and would severely prejudice employers by
imposing unrealistic deadlines and limiting employer speech (even
though it is explicitly protected in the statute). Among other things,
the Proposed Rule would:
Require that all pre-election hearings take place seven
days after the filing of a petition (absent special circumstances),
eliminate all pre-election review by the Board, and require that the
election date be set at ``the earliest date practicable.'' \3\
Require employers to provide unions, within seven days of
the filing of a petition, with a list of employee names, work
locations, shifts, and job classifications, and to provide, within two
days of a direction of election, employee addresses, telephone numbers,
and email addresses (to the extent available).\4\
Require employers to file a ``Statement of Position''--a
new form--that must be filed no later than the seven day hearing date.
It must set forth the employer's position on a host of legal issues.
Any issues not identified in the Statement would be forever waived.\5\
Significantly limit the scope of issues and the type of
evidence that may be litigated before an election, including most
questions regarding the eligibility of particular individuals or groups
of potential voters, and dispense with post-hearing briefs unless
permission is obtained from the hearing officer.\6\
Permit the Board to decline to review many of the Regional
Directors' decisions, substantially limiting the review options
available to employers.\7\
Permit electronic filing of election petitions, and
potentially allow the use of electronic signatures to support the
``showing of interest''--in other words, possibly allow employees to
sign union authorization cards electronically via the Internet or
Board Member Brian Hayes, dissenting from the issuance of the
proposed rules, wrote that it is ``certain'' that the proposed rules
would ``substantially shorten'' the time period from petition filing to
election date, suggesting that under the proposed rules elections would
be held ``in 10 to 21 days from the filing of the petition.'' \9\
Member Hayes also stated in dissent: ``Make no mistake, the principal
purpose of this radical manipulation of our election process is to
minimize, or rather, to effectively eviscerate an employer's legitimate
opportunity to express its views about collective bargaining.'' \10\ By
definition, this is a ``quickie'' election, as that term was used
liberally throughout the debate over EFCA and potential alternative
legislation in the 111th Congress. And as outlined below, the Proposed
Rule suffers from a number of substantive, fatal flaws that require an
appropriate Congressional response.
``Speed'' Over All Other NLRA Goals. The first flaw is the
incorrect premise that the current procedures for conducting secret-
ballot elections ``take too long'' or are ``broken,'' and that this
delay causes unions to lose more elections. Unions already win far more
elections than they lose. While union members currently comprise only
6.9 percent of private sector employees,\11\ unions have prevailed in a
majority of elections (where there was no incumbent union) every year
from fiscal year 1997 to the present. And the margin by which unions
prevailed in these elections has increased from 50.4 percent (in fiscal
1997) to 64.8 percent (in fiscal year 2010).\12\ Even if these numbers
were lower, the Board in its neutral role has no business ``taking
sides'' on how often unions prevail in elections.
Nor is the election process too slow. Over the past decade, as
noted in the Proposed Rule, elections have occurred within a median
time of 38 days after the filing of a petition. And in fiscal year
2010, the average time from petition to an election was 31 days.\13\
Those numbers include cases in which a pre-election hearing is held. In
Fiscal Year 2010, NLRB Regional Offices conducted 1,790 representation
elections. Of those, 1,648 cases or 92.1 percent were held without
either party exercising their right to a hearing.\14\ And even among
the small number of cases in which a hearing was held (142 cases or 7.9
percent), the median number of days from the filing of a petition to a
Regional Director decision was 37 days in 2010, significantly shorter
the Agency's ``ambitious'' target of 45 days.\15\ This time frame has
been consistent for the last several years, with the median number of
days from petition to Regional Director decision in contested cases at
34 days in 2009, 36 days in 2008, and 36 days in 2007.\16\ In spite of
these figures--which demonstrate the great majority of elections
already take place quickly--a selective emphasis of ``speeding up''
elections is pervasive throughout the Proposed Rule.\17\
The solitary focus on speed constitutes a fundamental distortion of
the Act's primary election objective stated in Sections 1 and 7, which
is protecting ``the exercise by workers of full freedom of
association'' encompassing employee rights to ``self-organization'' by
having ``representatives of their own choosing,'' with an equivalent
right ``to refrain from any or all of such activities.'' \18\ Employers
and unions also have important rights and obligations including those
set forth in Sections 8(a) and 8(b), which enumerate employer and union
unfair labor practices; plus the employer's right of free speech set
forth in Section 8(c). And there is a complex assortment of employee,
union and employer rights incorporated into the Act's statutory
provisions regarding elections, set forth in Section 9. Most
significantly, Section 9(b) states that the ``Board shall decide in
each case'' what constitutes the appropriate bargaining unit, which is
designed ``to assure to employees the fullest freedom in exercising the
rights guaranteed by this [Act].'' \19\ Nowhere does the NLRA contain a
mandate from Congress giving speed paramount importance at the expense
of the other objectives explicitly referenced in the statute. Speed
alone cannot be trumpeted while other statutory goals and obligations
are trampled upon.
Employer Free Speech Undermined. Another flaw in the Proposed Rule
is the unprecedented impact on employer free speech rights. The
Proposed Rule's shortening of the election time period inevitably will
undermine the ability of employers--after a petition is filed--to
engage in speech protected by Section 8(c) of the Act. Section 8(c)
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this [Act], if such expression contains
no threat of reprisal or force or promise of benefit.\20\
Because employers exercise no control over pre-petition union
activities--and often have no knowledge of union organizing--employers
exclusively bear the burdens and limitations resulting from a shorter
election period. This renders disingenuous the Proposed Rule's
statement that its changes ``would apply equally to all parties'' and
``do not impose any limitations on the election-related speech of any
party.'' \21\ Invariably, the Proposed Rule's impact on the timing of
elections will diminish the employer's right to express views under
Section 8(c). As noted by Member Hayes, shortening the election period
``broadly limits all employer speech and thereby impermissibly trenches
upon protections that Congress specifically affirmed for the debate of
labor issues when it enacted Section 8(c) in 1947.'' \22\
Lack of Due Process and Employer ``Waiver'' of Rights. Under the
Proposed Rule, it is highly likely that a great number of employers
will be forced to waive many substantive legal arguments and positions
based on the abbreviated timeframe in which employers are required to
enumerate them in the ``Statement of Position.'' But, for the litigious
employer, there will be an incentive--when confronted by such an
onerous timetable--to exhaustively identify every potential alternative
bargaining unit, argument and position that could conceivably have
compromised employee rights. Like so many other areas governed by the
Proposed Rule, the predictable outcome would be a proliferation of
additional issues, more litigation, and a longer overall timeframe for
representation issues to be resolved. Ironically, these ``shortcuts''
are being advanced at a time when we are at historic percentage lows in
federal court challenges to union certifications.
Employee Rights Negatively Impacted. The Proposed Rule negatively
impacts employee rights under the NLRA by making the election period so
short that it would deprive most employees of the time needed to
reasonably understand the potential benefits or consequences of union
representation. As noted previously, NLRB elections currently involve a
median election time period of 38 days, and an average time period of
31 days.\23\ There is no reasonable justification for reducing this
period further, given that the NLRA states employees ``in each case''
should be ``assure[d] * * * the fullest freedom'' to make their own
choice about union representation.\24\ Employee decision-making about
union representation involves a multiplicity of more significant
complex rights and obligations that take time to fully understand.
Regardless of whether or not a particular employee group ultimately
favors or opposes union representation, such a decision unquestionably
produces substantial long-term and day-to-day consequences, including:
the potential conferral of ``exclusive representative''
status of a labor organization regarding all matters of wages,
benefits, hours and terms and conditions of employment, whether or not
the individual employee so chooses,\25\
the loss of individual rights to deal with the employer in
relation to those same subjects,\26\
uncertainty associated with the consequences of collective
possible resort by the union or employer to economic
weapons like strikes, slowdowns, lockouts and possible temporary or
financial and other obligations and restrictions--
including fees, dues, fines and assessments--that unions may lawfully
impose on employees, consistent with union constitutions and by-
and complex rules regarding how collective bargaining
works, and significant restrictions on union decertification if
employees later become dissatisfied with union representation and the
outcome of bargaining.
The Proposed Rule's adverse impact on informed employee decision-
making is made worse by the Rule's additional provisions which, among
other things, would curtail pre-election hearings and defer the
resolution of many unit issues, including basic eligibility and scope
questions, until after the election takes place. Consequently, not only
would the Proposed Rule impair employee free choice by requiring an
election much more quickly with little time for consideration, the
Proposed Rule would deprive employees of important information,
including whether they are even eligible voters, substantially
increasing the number of employees who may cast votes based on
incorrect assumptions. This subverts employee free choice.
Mandated Disclosure of Employee Phone Numbers and Email Addresses.
Moreover, the Proposed Rule would impose a new requirement on employers
to disclose ``available email addresses'' and ``available telephone
numbers'' of bargaining unit employees on every voter eligibility
list.\30\ The Proposed Rule identifies no statutory mandate warranting
an expansion beyond existing Excelsior list home address requirements,
and Congress has never sought to change or expand the Excelsior list
disclosures. There is no rationale provided in the Proposed Rule except
for the Board's observation that an ``evolution'' towards electronic
communications is taking place in ``pre-election campaign
communication.'' \31\ The existence of various avenues for employer-
employee communication has never been interpreted by Congress or the
Board to require equal access by union organizers to the identical
vehicles for communication. This aspect of the Proposed Rule would
constitute a significant intrusion into privacy rights of employees and
their families. Email addresses and phone numbers are not essential to
``an informed employee choice for or against representation'' \32\
given that the existing Excelsior requirements provide for disclosure
of every eligible employee-voter's most reliable and near-universal
point of contact, the home address.
Statutory Hearing Obligations Ignored. The Proposed Rule would
grant Regional Directors and Hearing Officers the authority to deny
employers the right to a pre-hearing election where a dispute over the
appropriate scope of the petitioned-for unit concerns less than 20
percent of the bargaining unit (if the disputed individuals were found
eligible to vote). This portion of the Proposed Rule violates Section
9(c) of the Act and is misguided as a matter of policy.
The Board and the courts have long held that Section 9(c) ``makes
mandatory a preelection hearing.'' \33\ During my tenure on the NLRB,
the Board responded to a call for more ``rapid'' elections and changes
to the existing procedures. However, after considering this request,
the Board concluded that the statutory requirement of a pre-election
hearing prevented the Board from having an unfettered right to
accelerate the election process. In Angelica Healthcare Services, the
Regional Director directed an election without addressing the request
for a hearing. Citing the plain language of Section 9(c), the Democrat-
controlled Board held that the Regional Director must provide the
``appropriate hearing'' referenced in Section 9(c) of the Act ``prior
to finding that a question concerning representation existed and
directing an election.'' \34\ Based on Taft-Hartley's enactment,
parties have the right under Section 9(c) to present evidence in a pre-
election hearing. The Proposed Rule's limitation on pre-election
hearings violates Section 9(c) of the Act, and this limitation should
not be adopted by the Board. It constitutes misguided policy for the
Proposed Rule to eliminate or dramatically reduce the role played by
the pre-election hearing.
B. Smaller Bargaining Units That Unions Can Organize More Easily:
The Board's June 22, 2011 Proposed Rule is by no means the only
example of the Board's recent activity to stack the deck in favor of
unions during the election process. As Representatives who stand for
election, you instinctively know that if you control who comprises the
electorate--including reducing the size of the electorate to
artificially low numbers--you will have a key to winning an election.
That is what the NLRB has done for unions. On August 26, 2011, in
Specialty Healthcare & Rehabilitation Center of Mobile, the Board
announced a new standard for determining whether a petitioned-for unit
of employees is appropriate for collective bargaining.\35\ The case
nominally involved the issue of appropriate bargaining units in non-
acute care healthcare facilities, which in this case was a unit of
Certified Nursing Assistants.\36\ However, the Board's decision went
far beyond this rather narrow issue and articulated a new standard for
determining whether unions in other industries may petition for an
election among a small group of employees over an employer's objection
that the union has inappropriately excluded other related groups of
employees from the prospective unit.\37\
For decades, when determining if such an exclusion is appropriate,
the Board has examined whether the excluded group of employees is
``sufficiently distinct'' to warrant their exclusion.\38\ The Board's
new standard in Specialty Healthcare, however, reverses that inquiry,
so that employers will have the burden of proving that the excluded
employees share an ``overwhelming community of interest'' with the
employees included in the union's petition.\39\ The Board's new
standard predictably will facilitate union organizing by rendering
``appropriate'' extremely small bargaining units even though the
employees perform work functions and are managed in a manner that
logically connects them to a larger group. As noted by dissenting Board
Member Brian Hayes, the ``overwhelming community of interest'' test has
``vast practical ramifications * * * [because it] obviously encourages
unions to engage in incremental organizing in the smallest units
possible.'' \40\ The recent decision therefore allows unions the right
to petition for inappropriately small units, for example, a unit of
employees with the same job title or description, and then places a
stringent burden on an employer to prove an ``overwhelming'' community
of interest with other employees during an abbreviated and summary pre-
election process under the Proposed Rule.\41\
Changing the unit determination standard in this manner not only
will predictably lead to increased union organizing in the short term,
it is likely to cause greater problems in new bargaining relationships.
Bargaining with a small unit of employees, which excludes many other
employees who share a substantial community of interest (and who may be
unrepresented or organized by a different union), will impose
significant costs on employers, and undermine employment stability by
causing increased workforce fragmentation (at a time when it is all the
more important for employers to manage employees in ways that are more
efficient, with employees identifying to a more significant degree with
the business as a whole). Ultimately, the Board has a statutory
responsibility to approve bargaining units that are not only
appropriate for union organizing, but which also are calculated to
foster stable bargaining relationships and be consistent with effective
business operations. These considerations are undermined, not
furthered, by the new Specialty Healthcare standards.
C. Proposed Legislation Is Reasonable and Balanced Approach for
Effective NLRB Secret-Ballot Elections and Collective
The measured legislation proposed, H.R. 3094, is needed to restore
the proper functioning of the NLRB's election procedures, and to
reaffirm that Congress is responsible, in the first instance, for
establishing and making any fundamental changes in our national
employment and labor law policy. Based on my review, the Workforce
Democracy and Fairness Act seeks a return to the status quo of the
long-standing and effective election procedures that have been in place
at the NLRB, and the legislation would codify those rules and
procedures into law and restrict this NLRB--or any future NLRB--from
attempting to violate the mandates of the NLRA and circumvent Congress
with regard to election procedures.
The major provisions of this legislation that would restore the
status quo to the NLRB's election process include a specific mandate
that ``in each case'' the Board would, ``prior to an election,'' hold a
meaningful hearing to determine the unit appropriate for the purposes
of collective bargaining. These hearings would expressly incorporate
the Board's standard ``community of interest'' factors to ensure that
the unit is of appropriate scope and composition to balance employee
choice with effective collective bargaining. The list of eight
enumerated factors that comprise the community of interest test are
drawn from the Board's existing case law precedent. Review of action of
Regional Directors by the Board would be assured.
In response to the Board's Specialty Healthcare decision, the
legislation dispenses with the Board's recent embrace of so-called
``micro-units'' by returning the law to its pre-Specialty Healthcare
state, whereby a union's petition that seeks to exclude certain
employees would only be processed if the petitioned-for group had
interests ``sufficiently distinct'' from other employees.\42\ Specialty
Healthcare's use of the ``overwhelming community of interest'' test to
promote the expansion of small bargaining units, would, under the
proposed legislation, be a test appropriately limited to the Board's
``accretion'' cases whereby an employee group is added to an existing
unionized employee group without a secret-ballot election.\43\
The legislation introduced also would codify a reasonable time
framework for conducting NLRB elections--reasonable for employers,
employees, and unions. Under this language, the required pre-election
hearings may not be held until at least 14 days after the filing of a
petition, which ensures that all parties have at least some time to
analyze the legal issues involved and prepare for the potential
hearing, including the preparation of necessary witness and evidentiary
support. The actual secret-ballot election may not be held until at
least 35 days after the filing of the petition, which ensures an
opportunity for communication by the employer, the employees, and the
union on the relevant issues associated with employees selecting or
rejecting union representation.
Finally, employee privacy rights are adequately protected in the
legislation by granting employees the choice of how union
representatives may personally contact them--through either a telephone
number, email, or home address--rather than have the Board mandate
through regulation that all of the above, or more, of these methods to
contact employees must be provided to union representatives. The
proposed language reflects the spirit of Excelsior and more than
adequately provides unions the ability to unilaterally contact all
eligible voters to provide election-related communications.
This concludes my prepared testimony. Thank you again for the
invitation to appear today. I would be happy to answer any questions
that Members of the Committee may have.
\1\ I am not speaking on behalf of Morgan, Lewis & Bockius, the
National Labor Relations Board, or any other specific organization, and
my testimony should not be attributed to any of these or other
organizations. My testimony reflects my own personal views, although I
wish to thank David R. Broderdorf for his efforts in helping me to
prepare this testimony.
\2\ 76 Fed. Reg. 36,812-36,847 (June 22, 2011).
\3\ 76 Fed. Reg. at 36,825.
\4\ Id. at 36,820; 36,838; 36,843.
\5\ Id. at 36,821-23.
\6\ Id. at 36,824-25.
\7\ Id. at 36,827.
\8\ Id. at 36,846.
\9\ Id. at 36,831 (Member Hayes, dissenting).
\11\ See U.S. Dep't of Labor Bureau of Labor Statistics, Economic
News Release, Union Members Summary (2011) (http://www.bls.gov/
\12\ See NLRB Election Report (Oct. 19, 2010) at 10. Member Hayes
indicates unions prevailed in 68.7 and 67.6 percent of all elections
held in calendar years 2009 and 2010, respectively. See 76 Fed. Reg. at
36,832 (Member Hayes, dissenting).
\13\ See Gen. Counsel Mem. 11-09, at 18 (March 16, 2011), cited in
76 Fed. Reg. at 36,831 n.75 (Member Hayes, dissenting).
\14\ See Gen. Counsel Mem. 11-03, at 5 (Jan. 10, 2011).
\16\ Id.; Gen. Counsel Mem. 09-03, at 6 (Oct. 29, 2008).
\17\ The Proposed Rule refers to the ``expeditious resolution of
questions concerning representation'' (76 Fed. Reg. at 36,812);
allowing the Board ``to more promptly determine if there is a question
concerning representation and, if so, to resolve it by conducting a
secret ballot election'' (id.); ``Expeditious resolution of questions
concerning representation is central to the statutory design'' (id. at
36,813); ``expeditious processing of representation petitions'' (id.);
``delays in the regional offices' transmission of the eligibility list
to the parties'' (id. at 36,816); ``expeditious resolution of questions
concerning representation'' (id. at 36,817); ``The proposed amendments
would also shorten the time for production of the eligibility list''
(id. at 36,821); ``progression of reforms to reduce the amount of time
required to ultimately resolve questions concerning representation''
(id. at 36,829).
\18\ NLRA Sec. Sec. 1, 7, 29 U.S.C. Sec. Sec. 151, 157 (emphasis
\19\ Id. Sec. 159(b) (emphasis added).
\20\ NLRA Sec. 8(c), 29 U.S.C. Sec. 158(c) (emphasis added).
Obviously, important free speech guarantees also are afforded by the
First Amendment to the U.S. Constitution. As the Supreme Court has
recognized, Section 8(c) ``merely implements the First Amendment'' and
``an employer's free speech right to communicate his views to his
employees is firmly established and cannot be infringed by a union or
the Board.'' NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
\21\ 76 Fed. Reg. at 36,829.
\22\ Id. at 36,832 (Member Hayes, dissenting), citing Chamber of
Commerce v. Brown, 554 U.S. 60, 67-68 (2008) (other citations omitted).
In Brown, the Supreme Court stated that Section 8(c)'s enactment
``manifested a `congressional intent to encourage free debate on issues
dividing labor and management' '' and reflects a ``policy judgment,
which suffuses the NLRA as a whole, as `favoring uninhibited, robust,
and wide-open debate in labor disputes'' because ``freewheeling use of
the written and spoken word * * * has been expressly fostered by
Congress and approved by the NLRB. Id., quoting Linn v. Plant Guard
Workers, 383 U.S. 53, 62 (1966) and Letter Carriers v. Austin, 418 U.S.
264, 272-73 (1974).
\23\ Id. at 36,814; Gen. Counsel Mem. 11-09, at 18-19 (March 16,
\24\ NLRA Sec. 9(b), 29 U.S.C. Sec. 159(b) (emphasis added).
\25\ NLRA Sec. 9(a), 29 U.S.C. Sec. 159(a).
\26\ An employer's obligation to bargain under Section 8(a)(5)
makes it unlawful for the employer to engage in individual bargaining
or direct dealing with employees regarding wages, hours, and other
terms and conditions of employment and to implement unilateral changes
in mandatory bargaining subjects. See, e.g., Gen. Elec. Co., 150 NLRB
192, 194 (1964), enforced, 418 F.2d 736 (2d Cir. 1969), cert. denied,
397 U.S. 965 (1970); NLRB v. Katz, 369 U.S. 736, 743 (1962).
\27\ See, e.g., Midwestern Instruments, Inc., 133 NLRB 1132 (1961).
\28\ See, e.g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333
(1938); The Laidlaw Corp., 171 NLRB 1366 (1968), enforced, 414 F.2d 99
(7th Cir. 1969), cert. denied, 397 U.S. 920 (1970).
\29\ See, e.g., Scofield v. NLRB, 394 U.S. 423 (1969) (union could
lawfully maintain and enforce rule providing for fines, suspensions or
expulsion of union members who exceed work production ceilings
established by the union).
\30\ Id. The Proposed Rule would impose a similar ``available email
addresses'' and ``available telephone numbers'' disclosure requirement
on the ``lists filed with the regional director'' (but ``not served on
any other party'') as part of the new Statement of Position that the
Board would require from employers. 76 Fed. Reg. at 36,838, Proposed
\32\ Excelsior Underwear, Inc., 156 NLRB at 1236, 1241-42 (1966).
\33\ NLRB v. S.W. Evans & Son, 181 F.2d 427, 429 (3d Cir. 1950).
\34\ 315 NLRB 1320, 1321 (1995). See also Barre National, Inc., 316
NLRB 877 (1995).
\35\ Specialty Healthcare, 357 N.L.R.B No. 83, at *1.
\37\ Id. at 8.
\38\ See, e.g., NLRB v. Action Automotive, Inc., 469 U.S. 490
\39\ Specialty Healthcare, 357 N.L.R.B No. 83, at *16.
\40\ Id. at *27 (Hayes, B., dissenting).
\41\ A related problem with the Specialty Healthcare decision is
the lack of clarity regarding how the decision interacts with
preexisting ``industry-specific'' rules and standards which the Board
majority stated it did not intend to change. Id. at *20.
\42\ Prior to Specialty Healthcare, the Board looked with disfavor
upon fractured units, i.e., a group that is ``too narrow in scope.''
Colorado Nat'l Bank of Denver, 204 NLRB 243, 243 (1973). Where ``the
petitioned-for employees do not share a sufficiently distinct community
of interest from other employees to warrant a separate unit,'' the unit
petitioned-for is inappropriate for collective bargaining purposes.''
Seaboard Marine, Ltd., 327 NLRB 556, 556 (1999). The legislation
essentially codifies this standard into the statute.
\43\ The Board in accretion cases can add unrepresented employees
to an existing bargaining unit, without any election, based on the
overwhelming extent of employee interchange, working conditions, common
management, functional integration, bargaining history, and other
factors. See, e.g., Safeway Stores, Inc., 256 NLRB 918 (1981); United
Parcel Service, 325 NLRB 37 (1997); NLRB v. Sweet Lumber Co., 515 F.2d
785, 794 (10th Cir. 1975), cert. denied, 423 U.S. 986 (1975). That
standard has no relevance to secret ballot elections.
Chairman Kline. Thank you, sir.
Mr. Sullivan, you are recognized for 5 minutes.
STATEMENT OF ROBERT SULLIVAN, PRESIDENT, RG SULLIVAN
CONSULTING, TESTIFYING ON BEHALF OF THE RETAIL INDUSTRY LEADERS
Mr. Sullivan. Chairman Kline, Ranking Member Miller,
members of the committee, thank you for inviting he here this
morning to testify. I am honored to be here.
My name is Bob Sullivan. I am here to represent the Retail
Industry Leaders Association. RELA is a trade association with
over 200 members, whose combined annual revenue is over $1.5
trillion. RELA's members provide millions of American jobs and
operate over 100,000 stores, manufacturing facilities, and
I have been a management-side labor and employment lawyer
for almost 20 years--the first 10 years in private practice,
and the next 7 years as vice president and associate general
counsel with one of the nation's largest grocery wholesalers.
My company ran distribution centers all around the United
States, and retail grocery stores in the northeast and in the
In my time as in-house counsel, I was responsible for the
ongoing administration and negotiation of over 40 union
contracts. I also handled numerous union organizing campaigns
and representation elections. I handled such matters throughout
my legal career.
Since the beginning of 2009, I have operated RG Sullivan
consulting, where I provide consulting services in the areas of
labor and employee relations, legislative matters, and
regulatory matters. The committee has asked me to testify on
the Workplace Democracy and Fairness Act.
I am here to testify with input from RELA's members and
based on my own experiences. I would like to concentrate on the
practical aspects of the board's decision in Specialty
Healthcare. The greatest concern for retailers and for other
employers is that under Specialty Healthcare micro unions will
And what I mean by that is that unions will organize
employees in single departments within organizations, or
employees on a single shift, but perhaps not on other shifts.
This will represent a big problem for retailers and other
employers. Retail is a fast-paced business. Volume changes,
particularly over the holidays where it changes immensely,
there are late loads for many different reasons.
The key to handling these issues is flexibility. A typical
retailer has five, to 20 or more departments. To respond to
challenges, they draw from employees in many different
departments to go where they are needed to solve problems. They
change schedules, if necessary. They draw on supervisors.
All of these things would be problematic with separately-
organized departments. Having employees move between
departments is also very beneficial for the employees. They
learn more about different parts of the company, they earn more
by being able to cover shifts in other departments, and they
open up opportunities for advancement. Because by learning more
about the business, they are able to progress in a company if
they choose to do that.
RELA's membership has many executives who started their
careers on the floor of a retail establishment. They have
progressed because of the breadth of their knowledge. And they
are disturbed that under Specialty Healthcare the opportunities
available to them would be denied by employees who would not be
able to learn the full extent of the business.
Customers are also better served when employees know all
departments under the roof of a store, and are able to respond
to their needs in any department without fear of violating
rules. All of these things would be compromised by Specialty
Healthcare and separately organized departments.
The Workplace Democracy and Fairness Act can fix the
problem by restoring the rules that existed before Specialty
Healthcare. This will bring businesses back to focusing on
growing their businesses and creating jobs. That concludes my
opening statement, or I should say my testimony. Old habits die
I would be glad to take questions at the appropriate time.
[The statement of Mr. Sullivan follows:]
Prepared Statement of Robert G. Sullivan, on Behalf of the
Retail Industry Leaders Association (RILA)
Chairman Kline, Ranking Member Miller, and Members of the
Committee, thank you for your invitation to testify at this hearing. I
am honored to be here today.
My name is Bob Sullivan. I am here representing the Retail Industry
Leaders Association (RILA). RILA is the trade association of the
world's largest and most innovative retail companies. RILA promotes
consumer choice and economic freedom through public policy and industry
operational excellence. Its members include more than 200 retailers,
product manufacturers and service suppliers, which together account for
more than $1.5 trillion in annual sales, millions of American jobs and
operate more than 100,000 stores, manufacturing facilities and
distribution centers domestically and abroad.
By way of background, I have been a management-side labor and
employment lawyer for nearly twenty years. For the first ten years of
my career, I practiced at two separate law firms in Providence, Rhode
Island, where I represented a wide range of public and private sector
employers in matters that included collective bargaining, union
organizing and National Labor Relations Board (NLRB or Board)
elections, and a wide range of labor matters before the NLRB, state
labor boards and the courts.
From 2002 through 2009, I served as Vice President and Associate
General Counsel for Labor and Employment with one of the country's
largest grocery wholesalers with warehouses throughout the country, as
well as affiliated companies that operated retail grocery chains in the
Northeast and Southeast United States. As an in-house lawyer, I was
responsible for all aspects of labor and employee relations, including
the negotiation and administration of over forty union contracts and
the handling of numerous organizing campaigns and union elections.
Since 2009 I have operated RG Sullivan Consulting, LLC, a firm that
provides consulting and training services in the areas of labor and
employee relations, litigation, legislative and regulatory matters.\1\
The Committee has asked me to testify on the Workforce Democracy
and Fairness Act, which would amend the National Labor Relations Act
(NLRA) to effectively overrule the NLRB's recent decision in Specialty
Healthcare,\2\ and to address issues raised in the Board's June 22
proposed rulemaking, in which the Board proposes to radically overhaul
union election procedures and force elections in as little as ten days
after the filing of a representation petition.\3\
I have the benefit of input from RILA's membership as well as my
own experience. With the Committee's indulgence, I would like to focus
on practical concerns associated with the Board's recent actions and
the need for legislative action to protect the secret ballot election
and the election process itself. The changes in bargaining unit
determinations under Specialty Healthcare, if allowed to stand, and the
proposed election rule change, if implemented, would impose severe
administrative burdens on employers; lead to operational problems
caused by fractured bargaining units; be detrimental to employee
interests; and, for retailers, ultimately result in poor customer
Specialty Healthcare dealt with a nursing home and a union's
petition to represent certified nursing assistants as a discrete group,
versus a larger unit proposed by the employer that would have included
other non-professional employees. The Board ruled in favor of the
union's proposed unit, and cast its ruling broadly. Under the rule
announced in the case, a party seeking to expand a proposed unit in any
industry must now show that the employees it wants included in the unit
have an ``overwhelming'' community of interest with the employees in
the proposed unit.\4\
The most striking negative effect of Specialty Healthcare is the
extent to which it allows for what many have termed ``micro unions,''
or bargaining units composed of small groups of employees who formerly
would have been found to have a sufficient community of interest with
other employees to require that a proposed unit include the larger
group (these micro-unions also have been referred to over the years as
fractured units). This represents a drastic change to existing law, as
recently discussed in the Board's August 27, 2010 decision in Wheeling
Island Gaming, where the majority applied the community of interest
standard--without the ``overwhelming'' component--and then stated that
``[o]ur inquiry--though perhaps not articulated in every case--
necessarily proceeds to a further determination whether the interests
of the group sought are sufficiently distinct from those of other
employees to warrant the establishment of a separate unit.''
While Specialty Healthcare involved a nursing home, the impact of
the case is much broader, including a significant negative impact on
the retail industry. I'd like to discuss some of these concerns.
Under Specialty Healthcare, organizers can isolate small groups of
employees where they have support. As the courts have acknowledged,
unions will propose the group they have organized.\6\ If organizers
have support from employees working in just one department, for
example, accessories, they can seek to represent only clerks in that
department. As Member Hayes noted in his dissent in Specialty
Healthcare, the ruling ``will in most instances encourage union
organizing in units as small as possible. * * *'' \7\
When retail settings are unionized, they most often have what is
referred to as ``wall-to-wall'' bargaining units, where one unit
includes essentially all union-eligible employees (that is, excluding
supervisors and management). In many cases, a wall-to-wall unit is the
only appropriate one given the commonality of interests within a single
retail location and the frequency of staffing across departments.
When all workers in a retail establishment are in the same unit,
covered by the same contract, there are mechanisms for cross-training,
for covering absences between departments or in nearby stores--in other
words, for employees to expand their horizons, earn extra money by
picking up additional shifts--and for continuity of operations and
enhanced customer service. The employer and union need to administer
and negotiate just one contract, minimizing confusion, administrative
burden and usually limiting negotiations to once every few years.
These issues are particularly important in retail. Retailers
encourage employees to learn about their business by working in
different departments. They recognize the value to employees and
customers alike when a customer can ask almost any store employee for
help, and get effective assistance throughout the store. Employees also
appreciate the variety and in the present economy many are looking for
additional shifts, which are more available with free movement between
Among the executive ranks of RILA's members are many who started
their careers working on the floor of a store. They are gravely
concerned that micro-unions would prevent employees from developing
their knowledge base and advancing their careers, allowing for better
employee retention and a better connection between senior management
and the employees in their stores.
Retailers typically have from five to over twenty departments. With
the potential for each department, or each shift, to become a separate
bargaining unit, managing the store would become a nightmare. Employees
themselves would lose the opportunity to cover for absent workers and
to learn about other departments, making advancement into management
much less likely. Employees in smaller stores tend to move around a
great deal, and drawing lines between departments would impact both
customers and employees even more acutely there than in larger
Worse yet, while my experience includes many responsible, customer-
oriented union officials and employees, separately represented
departments would inevitably lead to at least some degree of ``not my
job'' responses to customer requests. Obviously, such customer
relations would be detrimental to business, which in turn would be
detrimental to all employees of the business.
Many RILA members run their own distribution centers and are quite
concerned that having small groups of warehouse workers organized would
prevent them from moving product in and out efficiently. They use the
term ``just in time product'' to describe the fast pace and tight
delivery windows common across retail operations. The issue is
especially crucial around the holidays when retail business surges.
In a distribution center, if receiving is disrupted, product can
build up on the dock before being stored in the racks. This is known as
being ``in default,'' and the effect is to back up inbound trucks,
which miss their scheduled drop-offs times, triggering a succession of
back-ups in the supply chain.
In stores, shelves are generally replenished overnight. When
deliveries to the store are late, or when store personnel are unable to
get product on the shelves in time, the impact goes straight to the
customer, who may be greeted by pallets on the floor or products
missing from the shelves. And I'm sure that although we have all seen
Halloween decorations going up in stores, most of us probably haven't
thought about what has to be done Halloween night so that customers
walk into a transformed store the next day.
On both the distribution and retail sides, the answer to seamlessly
keeping product on the shelves is meeting schedules and, in times of
heavy volume or late deliveries, the ability to have employees pitch in
on whatever needs to be done, including drawing across departments and
shifting schedules. Micro unions would be an impediment to responding
to changing needs, an impediment that would be felt most during the
With multiple bargaining units and multiple unions, contract
negotiations themselves carry a significantly higher risk of a strike
disrupting operations and hurting customers. With multiple unions and
bargaining units in the same facility, it is possible to reach
agreement with all but one bargaining unit, only to have the last group
go on strike and shut down the entire operation.
Representation by different unions in the same setting can also
have adverse effects on employee morale and job satisfaction. Two
similar groups represented by different unions might not only end up
with different pay scales, they would quite likely have different
health and retirement plans. A union representing back room workers
might have a high-end health plan and put less emphasis on retirement.
A union representing greeters or cashiers might have an opposite
approach. Further, contracts negotiated in different economic climates
may be more or less generous than contracts negotiated at different
times. The result can be employees unhappy with some aspect of their
benefits who feel slighted and resentful. The team atmosphere that most
employers foster and most employees appreciate would suffer, and
customers notice unhappy employees.
Finally, at a time of universal discussion about the need to grow
our economy, we look for expansion by our successful businesses, and
opportunities to help ones that are struggling. Specialty Healthcare is
a clear disincentive to both. At a minimum, healthy companies will wait
to see what effects develop in their existing operations before
investing in expansion--given the limited avenues of appeal for the
Specialty Healthcare ruling this could take years.\8\ Struggling
companies will not fare well with small groups of employees being
organized, making them less likely to succeed and less attractive
prospects for takeover. The end result will be fewer jobs.
Proposed Election Rule Changes
In addition to addressing the problems created by Specialty
Healthcare, the Workforce Democracy and Fairness Act would prevent the
NLRB from drastically changing union election rules by regulation in
ways that would shift the Board away from its historic position of
neutrality. The June 22 Notice of Proposed Rulemaking would bring a
vast number of changes to an election system that not only has worked
well for decades, but already results in union wins in nearly seventy
percent of elections.\9\
In the interest of brevity and my intention to focus on practical
matters, as well as the fact that others are here to discuss the
proposed rulemaking in more detail, I will limit my comments to the
effects on employees, and to the considerable burdens placed on
employers by the proposed changes to what they would be required to
accomplish in just the first week after the filing of a representation
petition and the unnecessary increase in litigation this change will
Under current practice, when a union files a petition, the Board
serves it on an employer, along with a questionnaire about the
employer's commerce information (relevant to the Board's jurisdiction),
a request for a list of names and classifications for the employees
sought to be represented, a reference to a hearing which may not have
an actual scheduled date, and a request for the employer to comment on
the appropriateness of the proposed unit.
As even the Board's majority as acknowledged in the Notice of
Proposed Rulemaking,\10\ the vast majority of representation cases
proceed to election under some form of agreement rather than after a
hearing. This process is helped by the function of Board Agents, who
are charged with the task of determining whether there is a question
concerning representation, and if there is a hearing, developing a
complete record using a fact-finding, non-adversarial process.\11\ In
my experience, Board Agents are not only expert in this process, but
efficient, thorough, and of great value in helping the parties to a
representation case understand the issues and reach agreement if
possible rather than proceeding to hearing. While Board Agents are not
advocates for employers and therefore no substitute for counsel, the
Board's proposed rule changes would remove them from the process and
result in far fewer elections by agreement.
Despite the fact that this stage of the process lacks hard-and-fast
time limits and is left in large part to the discretion of the Board's
Regional Directors, on average elections take place in barely over
thirty days from the filing of a petition.\12\ This time frame affords
employers not only the time to comply with the Board's election
procedures, it allows a reasonable period of time for communication
with employees. As an election approaches, employees often have
questions for the employer about everything from current benefits to
what happens on election day.
The law specifically protects an employer's right to engage in non-
threatening, non-coercive discussion with employees about bargaining
issues.\13\ The Supreme Court has acknowledged the desirable
Congressional policy of ``favoring uninhibited, robust, and wide-open
debate'' on matters relating to unionization, so long as that does not
include unlawful speech or conduct.\14\
The Board's proposed rule changes would require elections in as
little as ten days,\15\ during which, as explained below, the employer
would face a monumental task in trying to provide a greatly increased
volume of information to the Board, at the risk of permanent forfeiture
of its right to challenge the proposed bargaining unit. With such a
short time table, employers will have difficulty getting adequate legal
advice, especially about how to discuss the issues with employees.
The result for employees would be two-fold: Far less ability to
learn about the issues and hear the employer's perspective; and a
higher likelihood that a well-meaning but unprepared employer would
inadvertently violate employee rights by making improper statements.
As to the process itself, the Board's proposed rule changes would
do two things that are momentous, one more obvious than the other.
First and most obviously, a hearing would be scheduled for seven days
after the filing of a petition, and employers would be required to
provide far more comprehensive, detailed, and crucially important
information within that time frame than ever before.
In seven days, an employer would need to file a Statement of
Position, in which it must state whether it agrees with the proposed
unit. If it does not, the employer would have to provide in extreme
detail information about its position on all employees it contends
should not be included, and on any it contends should be included,
including not only name and classification, but also work location and
shift, phone numbers, e-mail addresses and home addresses, for all
employees in the unit that it believed appropriate.\16\ The Statement
of Position must include the employer's position in detail on ``type,
dates, times, and location of the election and the eligibility period;
and describe all other issues the employer intends to raise at the
hearing.'' \17\ An employer that fails to provide the required
information in a timely fashion (i.e., within seven days) would be
precluded from contesting unit appropriateness, presenting evidence, or
even cross-examining witnesses.\18\
Requiring such comprehensive and detailed information, including
essentially all legal and factual challenges to the proposed unit and
in favor of an alternate unit, under threat of complete forfeiture of
the right to challenge the proposed unit, stands in stark contrast to
the current burden an employer faces, which is to provide relatively
easily obtainable basic information, without the need to formulate a
complete factual and legal strategy within seven days (during which
most, especially small, employers will have to find and retain
experienced labor counsel).
The less obvious of the proposed changes--but perhaps far more
significant for small employers--is the fact that the Board wants to
remove its Board Agents from the role of developing a record on the
The proposed rules will wreak similar havoc with small and large
employers, for reasons that differ in direct proportion to their size.
Small employers in many cases may be able to access factual
information about a proposed bargaining unit better than larger firms,
but they will have no in-house experts to help them evaluate the facts
in light of legal issues, and almost certainly no relationship with an
outside labor specialist who might have some hope of figuring out the
legal and factual issues and helping to prepare the required Statement
of Position within seven days. With Board Agents no longer developing a
record, up against professional union organizers, and virtually on
their own, small employers will not stand a chance of complying with
the Board's requirements, let alone communicating effectively and
lawfully with a group of employees about to make perhaps the most
important decision of their working lives, with little or no input from
their employers, and most likely only a vague understanding of who
would be in their own bargaining unit.
Large employers will face a different array of intractable
challenges. They will have the advantage of either in-house labor
staff, or relationships with outside labor experts, or both. But while
their size and resources will help in guidance, they will hinder fact-
finding. Labor experts in a large corporate environment will generally
be found in a central headquarters. Often they will oversee matters in
many subsidiaries and affiliates. Faced with a petition seeking to
organize a group of employees, their first task will be to examine the
correct employing entity, then determine the organizational structure
and find the right management officials with first-hand knowledge about
the proposed unit, and then consider whether there are other employees
who should be included in the unit. With more capability but vastly
more complicated facts, large employers would be hard pressed to meet
the proposed filing deadline without missing factual and legal issues.
With greater resources than small employers, and given the significant
burdens imposed by the Board's changes, they would also be quite likely
to litigate more representation cases.
Perhaps the most striking aspect of the Board's draconian proposal
to preclude employers from raising any issue not included in the
Statement of Position would be its effect on the employees themselves.
It is easy to lose sight of the fact that the crucial phrase
``community of interest'' relates to the interests of the employees. It
is their livelihoods that are at stake. With today's non-adversarial
fact determination, the process moves forward toward either an
agreement or a hearing based on the facts bearing on unit
appropriateness. The Board's proposal shows a lack of concern for
accurate facts, and intent to let arbitrary procedural issues drive
outcomes. This would do a disservice to the employees whose rights the
Board is charged with guarding.
In order for our economy to function, recover, and provide more
jobs, retailers need to sell, builders need to build, and manufacturers
need to manufacture. The NLRB's recent actions and proposed rulemaking
will have them dealing with multiple small-group organizing campaigns,
litigation, and fragmented workplaces with greatly reduced flexibility.
At a time when President Obama has stated that his administration is
``reviewing government regulations so that we can fix any rules in
place that are an unnecessary burden on businesses,'' \19\ the Board is
doing the exact opposite. The Workforce Democracy and Fairness Act will
bring reason back to the representation process, put the NLRB back on
the course that the President has laid out, and let employers get back
to business. More importantly, it will remove the most glaring of the
Board's recent decisional and regulatory threats to economic progress,
and bring back a climate where business leaders can focus on growing
the economy and creating jobs.
I have only scratched the surface of the issues raised by the
Board's recent decisions and proposed rulemaking. Hopefully, though, I
have explained some of the more significant practical concerns with the
Board's recent actions, particularly as they relate to retailers. Thank
you again for inviting me to testify. I would be happy to answer any
questions from Members of the Committee related to my testimony.
\1\ My testimony here today is on behalf of RILA and reflects my
own personal experience. My views should not be attributed to my
pervious employers or current or prior clients.
\2\ Specialty Healthcare and Rehabilitation Center of Mobile, 357
NLRB No. 83 (August 26, 2011).
\3\ Representation--Case Procedures, 76 FR 36,812 (June 22, 2011);
see dissent of Member Hayes, 76 FR at 36,831.
\4\ Specialty Healthcare, 357 NLRB at 12.
\5\ Wheeling Island Gaming, 355 NLRB No. 127, n.2. (August 27,
\6\ Laidlaw Waste Systems, Inc. v. NLRB934 F.2d 898, 900 (7th Cir.
1991). Despite the majority's views in Specialty Healthcare, the ruling
improperly imposes such a high standard on a party--usually the
employer--opposing a proposed unit (requiring an ``overwhelming''
community of interest between the proposed unit and other employees
sought to be added to it) that it is virtually impossible to alter the
proposed unit, thus violating section 9(c)(5) of the act, which
provides that in determining unit appropriateness ``the extent to which
the employees have organized shall not be controlling.'' Specialty
Healthcare, 357 NLRB at 9; 29 U.S.C. Sec. 159(c)(5).
\7\ Specialty Healthcare, 357 NLRB at 19.
\8\ As a representation case rather than an unfair labor practice
case, Specialty Healthcare is not subject to direct judicial review.
Only ``final orders'' of the Board may be appealed directly, and the
courts long ago determined that decisions in representation cases are
not considered final orders. 29 U.S.C. Sec. 159(f); see American Fed'n
of Labor v. NLRB, 308 U.S. 401 (1940). To appeal, the employer must
refuse to bargain, go through unfair labor practice proceedings in
which the employer can challenge the findings in the representation
process. If the employer loses before the Board, the resulting decision
is a final order and may be appealed in court. 29 U.S.C. Sec. 159(f).
\9\ Unions won 67.6% of elections in calendar year 2010. ``Number
of NLRB Elections Held in 2010 Increased Substantially from Previous
Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 May 3, 2011.
\10\ Representation--Case Procedures, 76 FR 36,812 (June 22, 2011).
\11\ See Mariah, Inc. 322 NLRB 586 n.1 (1996).
\12\ 76 FR at 36,831.
\13\ Section 8(c) of the National Labor Relations Act provides:
``The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act [subchapter], if such
expression contains no threat of reprisal or force or promise of
benefit.'' 29 USC Sec. 158 (c).
\14\ Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008).
\15\ 76 FR at 36,831.
\16\ 76 FR at 36,838.
\17\ 76 FR at 36,838.
\18\ 76 FR at 36,839.
\19\ June 29, 2011 press conference.
Chairman Kline. Thank you, sir.
Mr. Hunter, you are recognized.
STATEMENT OF MICHAEL J. HUNTER, PARTNER,
HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN
Mr. Hunter. Thank you. Chairman Kline, Ranking Member
Miller, and members of the committee, I thank you, as well, for
the opportunity to appear here. I am honored to be here.
My perspective I bring to this is that I am a union-side
lawyer based in Columbus, Ohio, and I have been in the labor
movement for over 40 years. This bill that is before you is
entitled the Workplace Democracy and Fairness Act.
In my judgment, the proposed legislation promotes neither
fairness nor democracy, and is not aimed at helping the
workforce, but those who, without the intervention of labor
unions and legislation that supports workers' rights, would be
subject to the unfettered control of corporations.
The bill proposes to amend the National Labor Relations Act
by adding four broad mandates. One, the total uprooting of the
current methodology for determining permissible bargaining
units. Two, the timing, and a vastly increased scope, of a
representation hearing. Three, the timing of an election, and a
requirement that every conceivable issue be resolved on board
review before an election can even be scheduled.
And four, the timing content and provision to a petitioning
union of lists of eligible employees so there can be some
fairness in the ability to contact people. As the Supreme Court
had noted in regard to bargaining unit determination--and I
believe that Mr. Cohen indicated this, as well, in his opening
testimony--that for years it has been the case that a union is
not required to seek the ``most'' appropriate bargaining unit,
if such a thing even exists, but rather ``an'' appropriate
As the Supreme Court noted in regard to section 9-A of the
act, this section read in light of the policy of the act
implies that the initiative in selecting an appropriate unit
resides with the employees. Moreover, the language suggests
that employees may seek to organize a unit that is appropriate,
not necessarily the single most appropriate unit.
The legislation that is being proposed here would result in
the wholesale disruption of 75 years of board experience in
configuring bargaining units. And the purported reason for that
is a single case changing an arcane bargaining unit standard in
a discrete industry that would have no practical effect
whatsoever in greater industry.
It would eviscerate the board's Healthcare bargaining units
that currently exist, and that the parties, both employers and
employees, have relied on for over 20 years. The timing and
scope of a representation hearing, I would just hit on the
scope of the hearing. The scope of the hearing would now
include any issue which may reasonably be expected to impact on
the election's outcome.
Any issue that could affect the election's outcome could be
litigated. And beyond that, parties could raise, independently,
any issue whatsoever that they wished. And yet the prefatory
language of that section states that it should be a non-
adversarial hearing, subjecting that hearing in which anything
could be litigated to serious constitutional infirmities.
The bill also requires that review be granted as a matter
of right, and that no election could be mandated until review
was granted. And takes away what has already been provided to
unions, in regard to employee contact information, for 50
In conclusion, the Workplace Democracy and Fairness Act is
anti-democratic and grossly unfair. It is an attack on workers'
rights and should be rejected in its entirety. Thank you.
[The statement of Mr. Hunter follows:]
Prepared Statement of Michael J. Hunter, Partner,
Hunter, Carnahan, Shoub, Byard & Harshman
Chairman Kline, Ranking Member Miller and Members of the Committee,
thank you for your invitation to participate in this hearing. I am
honored to appear before you today. My name is Michael Hunter. I am a
partner in the Columbus, Ohio based law firm of Hunter, Carnahan,
Shoub, Byard & Harshman. My law practice consists almost exclusively in
representing unions and workers. A significant part of that
representation involves representing unions assisting workers to gain
collective bargaining rights through proceedings before the National
Labor Relations Board and a number of its regions.
I began practicing union side labor law after graduating from
Capital University Law School in 1985. Prior to that time, I worked as
a union organizer from 1977-1982. I first became a member of a union in
1970. I participated in my first representation case hearing before the
NLRB in 1978.
H.R. 3094, the matter subject to today's hearing, is entitled the
``Workforce Democracy and Fairness Act.'' In my judgment, the proposed
legislation promotes neither fairness nor democracy, and is aimed at
aiding not the workforce but those who, without the presence of union
representation, exercise largely unfettered control over it.
The Bill proposes to amend the National Labor Relations Act by
adding four broad mandates: 1) the total uprooting of the current
methodology of determining the permissible composition of bargaining
units; 2) the timing and scope of a representation hearing; 3) the
timing of an election and the requirement that every conceivable issue
be resolved before an election is held; and 4) the timing, content and
provision to the petitioning union of lists of eligible voters through
which workers have access to information about collective bargaining
and union representation.
The first proposal is apparently in reaction to a single Board
decision that constitutes one of those periodic incremental adjustments
to the methodology for determining bargaining units under the Act. The
other three are in apparent reaction to proposed amendments to the
Board's rules for which thousands of comments have been received, which
have not been implemented, and for which there is no current
information available as to when, in what form, or even whether such
rules will be implemented.
1. Bargaining Unit Determination
As noted by the Supreme Court, when Congress enacted Section 9(a)
of the Act, it granted workers the right to take the initiative in
organizing themselves into a unit. It hardly promotes workforce
``democracy and fairness'' to take that right away from workers.
In American Hospital Association v. NLRB, 499 US 606, 610 (1991),
the Supreme Court, noted:
Section 9(a) of the Act provides that the representative
``designated or selected for the purposes of collective bargaining by
the majority of the employees in a unit appropriate for such purposes''
shall be the exclusive bargaining representative for all the employees
in that unit. Sec. 159(a). This section, read in light of the policy
of the Act, implies that the initiative in selecting an appropriate
unit resides with the employees. Moreover, the language suggests that
employees may seek to organize ``a unit'' that is ``appropriate''--not
necessarily the single most appropriate unit. (Emphasis in original).
In addition to taking away this important worker right, the
proposed Bill will result in the the wholesale disruption of 75 years
of Board experience in configuring appropriate bargaining units. This
all comes about in apparent response to the August 26, 2011 decision of
the Board in Specialty Healthcare, 357 NLRB No. 83 (2011). The
Specialty Healthcare decision involved whether non-acute healthcare
facilities such as nursing homes, which are not subject to the
bargaining unit rules adopted by the Board for acute-care facilities,
should be subject to the same standards for evaluating appropriate
bargaining units that apply to all other industries, or whether they
should continue to be governed by an arcane and confusing ``empirical
community of interest'' test that had been established by the Board for
non-acute healthcare facilities in Park Manor Care Center, 305 NLRB 872
In Specialty Healthcare, the Board overruled its 1991 Park Manor
Care Center standard and decided to apply to non-acute healthcare
facilities the same community of interest standards that it applies in
determining the appropriateness of bargaining units in other
industries. In the Specialty Healthcare case, the Board found that a
unit of certified nursing assistants (CNA's) constituted an appropriate
unit. It noted that once it is established that a petitioned-for unit
consists of a readily identifiable group of employees who share a
community of interest, the burden shifts to the employer to demonstrate
that excluded employees that it claims should be included share an
overwhelming community of interest with the employees for whom a union
has petitioned. This analytical framework for ascertaining an
appropriate unit is the same as that applied by the Board in a non-
healthcare context and which was endorsed by the D.C. Circuit in Blue
Man Vegas v. NLRB, 529 F3d 417 (D.C.Cir. 2008).
In apparent response to this adjustment eliminating an arcane test
that applied to a discreet portion of the employer community, and
moving it into the mainstream, the Bill proposes to turn on its ear 75
years of experience and stability in the determination of bargaining
In the first instance, the Bill proposes to eliminate the following
language which has been included in subsection 9(b) of the Act, 29 USC
Sec. 159(b) since its inception in 1935:
The Board shall decide in each case whether, in order to assure to
employees the fullest freedom in exercising the rights guaranteed by
this Act the unit appropriate for the purposes of collective bargaining
shall be the employer unit, craft unit, plant unit, or subdivision
thereof: (Emphasis added).\1\
The Bill then goes on to mandate a set-in-stone, one size fits all
test for determining whether employees in a proposed unit share a
community of interest:
In determining whether employees share a sufficient community of
interest, the Board shall consider (1) similarity of wages, benefits,
and working conditions; (2) similarity of skills and training (3)
centrality of management and common supervision; (4) extent of
interchange and frequency of contact between employees; (5) integration
of the work flow and interrelationship of the production process; (6)
the consistency of the unit with the employer's organizational
structure; (7) similarity of job functions and work; and (8) the
bargaining history in the particular unit and the industry. (Bill, p.2.
While items listed in the above formulation have certainly been
among the useful tools utilized in evaluating the appropriateness of
bargaining units, it is unclear whether this precise formulation has
even been used in determining a community of interest.
Limiting the analytical tools that can be used in evaluating an
appropriate bargaining unit makes no more sense than establishing a set
number of tools that can be used in approaching any job. One does not
change a tire with a screwdriver or adjust a carburetor with a shovel.
As noted in the Developing Labor Law, (5th Ed. BNA), a compendium
developed by the ABA's Committee on the Development of Labor Law:
Community of interest is not susceptible to precise definition or
to mechanical application. As illustrated by the cases discussed
throughout this chapter, the ultimate determination much more often
depends on detailed factual analysis on a case-by-case basis than on
the application of rules of law.
Id. at 643-644. Numerous other analytical tools have been used in
analyzing the appropriateness of a bargaining unit depending on the
nature of the industry. A few examples include similarities or
differences in product,\2\ geographical proximity,\3\ desires of
employees,\4\ area bargaining patterns and practices,\5\ and, while not
by itself controlling, extent of organization.\6\
Adoption of the unit determination formula set forth in the Bill
would wreak havoc on labor relations stability. For example, for twenty
years, employers and unions in the acute care hospital industry have
relied upon the certainty that organizing in that industry would
involve the units established by the rulemaking process and set out at
Section 103.30 of the Board's Rules.\7\ It is clear, however, that
those Rules were not adopted pursuant to the standard that would be
dictated by the Bill. The standards and considerations taken into
account in promulgating the Rule are set out in 53 FR No. 170, at
As those Rules were not adopted pursuant to the standard required
by the Bill, its enactment into law would again require a case by case
adjudication from scratch as to the appropriateness of any new unit in
the acute care hospital industry, depriving the parties of the
stability, certainty and predictability that they have enjoyed for
While the Bill would leave intact the proviso to Section 9(b) of
the Act that indicates that a prior determination that a larger unit
was appropriate is not in itself a ground for deciding that a craft
unit is inappropriate, its dictates as to the factors to be taken into
consideration in determining a bargaining unit will deprive the Board
of the analytical tools that it has used for over 40 years in
evaluating the appropriateness of craft severance.\8\
The Bill continues with provisions that result, as a practical
matter, in a dictate that there can be only one appropriate unit for
any category of employees. The Bill states, commencing at line 21 of
page 2, that:
To avoid the proliferation of fragmentation of bargaining units,
employees shall not be excluded from the unit unless the interests of
the group sought are sufficiently distinct from those of other
employees to warrant the establishment of a separate unit.
Avoidance of ``proliferation'' of bargaining units has never been a
factor in the general field of NLRB jurisprudence. In the passage of
the 1974 healthcare amendments to the Act, reference was made in the
House and Senate Reports regarding due consideration of preventing the
proliferation of bargaining units in the health care industry.\9\ Two
circuits, the Ninth and the Tenth, found that the legislative history
of the health care amendments required application of a ``disparity of
interest'' analysis of units in the acute health care industry,\10\
while other circuits specifically rejected this test.\11\ Any
application of that test was superseded by the promulgation of the
Board's acute care bargaining unit rules and their subsequent approval
by the Supreme Court in American Hospital Association v. NLRB, supra.
The Bill would now enshrine a test required by only two federal Circuit
courts 20 years ago for the acute-care hospital industry into the
statute and apply it to all industries.
It then goes a step further by permitting an employer to add to a
proposed bargaining unit any category of employees who share a
community of interest with the unit proposed by a petitioning union.
Beginning at line 2 of page 3, the Bill provides that:
Whether additional employees should be included in a proposed unit
shall be based on whether such additional employees and proposed unit
members share a sufficient community of interest.
This runs contrary to 75 years of NLRB jurisprudence, and
essentially mandates that there can be only one appropriate bargaining
unit for any category of employee.
Again, as emphasized by the Supreme Court in American Hospital
Association v. NLRB, supra:
[Section 9(a) of the Act] implies that the initiative in selecting
an appropriate unit resides with the employees. Moreover, the language
suggests that employees may seek to organize ``a unit'' that is
``appropriate''--not necessarily the single most appropriate unit.
Id. at 610. (Bolded emphasis added; italics in original). It has
always been the case that in a petition filed with the NLRB on behalf
of workers is not required to seek representation in the most
comprehensive appropriate grouping unless an appropriate unit
compatible with the one requested does not exist.\12\
As emphasized by the Supreme Court, when Congress enacted Section
9(a) of the Act, it granted workers the right to take the initiative in
organizing themselves into a unit. It hardly promotes workforce
``democracy and fairness'' to take that initiative away from workers.
It is respectfully submitted that the Bill's proposed changes to
subsection 9(b) of the Act should be rejected.
2. Timing and Scope of Representation Hearings
The Bill's provisions in regard to the timing and scope of
representation hearings are in apparent reaction to the Board's Notice
of Proposed Rulemaking contained at 76 FR No. 20 at 36812 et., seq.
The proposed rule amendments would provide at Rule 102.63(a) that a
regional director would ordinarily, absent special circumstances, set a
representation hearing to commence seven days after the notice of
The comments to the proposed rule amendments note that this is
already the current practice in some regions, and one which the Board
wishes to make uniform. 76 F.R. No. 20 at 36821. Back in 1998 ``best
practices'' provided for a hearing within ten to fourteen\14\ days.
With modern access to relevant unit information through computers and
with advances in communication technology, including electronic mail
and overnight/express mail, it is not surprising that the Board, in
many of its regions, has achieved hearings after seven days.
It is in apparent reaction to the potential memorialization by rule
of the seven day timeframe currently in effect in many regions that the
Bill proposes to enshrine in the statute a requirement that a
representation hearing may in no circumstances ``take place less than
14 days after the filing of a petition.'' Bill, page 3, lines 14-16. It
is respectfully submitted that this is the sort of matter that, under
Section 6 of the Act, is appropriately addressed by Rule so that
evolving circumstances and changes in the workplace and workforce can
be examined and adapted to.
The Board's proposed rule amendments propose a methodology for
early and thorough identification of issues in representation case
matters, and for devoting the resources of the Agency and the parties
to those issues which are material and which are in dispute. Proposed
Rules, Sections 102.63; 102.64. There are currently, as will be noted
below, limitations on what can properly be presented in a
representation hearing. In apparent reaction to the proposed rule
amendments that would further promote issue-identification and avoid
needless and costly proceedings while still promoting the development
of a full record on all material issues, the Bill proposes the addition
of the following language in subsection (c)(1) of the Act:
An Appropriate hearing shall be one that is nonadversarial with the
hearing officer charged, in collaboration with the parties, with the
responsibility of identifying any pre-election issues and thereafter
making a full record thereon. Pre-election issues shall include, in
addition to unit appropriateness, the Board's jurisdiction and any
other issue the resolution of which may make an election unnecessary or
which may reasonably be expected to impact the election's outcome.
Parties may raise independently any issue or assert any position at any
time prior to the close of the hearing. (Bill, page 3 line 18 through
page 4 line 5).
This language would allow virtually any issue to be litigated in a
representation case proceeding. Hearings could literally be marathon
endeavors, with randomly changing positions, new issues inserted at
various stages along the way, and no concern for the resulting
extraordinary costs to the Agency.
It should be noted that under the current state of the law, there
are limitations upon what may be introduced at a representation case
hearing. Thus, for example, in Bennett Industries, 313 NLRB 1363 (1994)
a unanimous Board found that a party that refuses to take a position
regarding the supervisory status of employees or employee
classifications is precluded from presenting testimony about the
It has always been the case that unfair labor practice issues may
not be litigated in a representation case hearing.\15\ The same is the
case with a petitioner's showing of interest which is considered
confidential.\16\ When parties are free to raise not only any issue
which may affect an election's outcome, but to raise any issue or
assert any position in a non-adversarial proceeding, such a proceeding
is subject to precisely the type of constitutional infirmity that was
found not to exist when the hearing is limited to determining whether a
question of representation exists.\17\ Allowing introduction in a
representation case proceeding of evidence regarding any issue that
could ``affect the outcome'' of any election would reduce the
proceeding to a carnival atmosphere, and allowing parties to
additionally introduce anything else whatsoever would reduce to the
hearing to absurdity.
As a consequence, it is respectfully submitted that the Bill's
proposed strictures regarding the time and scope of a representation
case hearing should be rejected.
3. Timing of Elections
In apparent response to the Board's proposed rule that would
eliminate the current discretionary pre-election review by the
Board\18\ the Bill proposes, at lines 7 and 8 of page 4, to make pre-
election review mandatory and to require that no election be held until
such a review is made.
Section 3(b) of the Act authorizes the Board to delegate to the
regional directors its power under Section 9 to determine appropriate
units, to hold hearings, to determine if a question of representation
exists, and to direct an election. It provides that the Board may
review any action of a regional director, but that such action, unless
ordered by the Board, will not stay an action of the regional director.
Since 1961, the Board's rules have made such review discretionary,\19\
and that procedure was subsequently upheld by the Supreme Court.\20\
The language proposed in lines 7-9 of page 4 of the Bill would
result in the last sentence of subsection 9(c) (1) of the Act reading
in pertinent part as follows:
If the Board finds upon the record of such hearing and a review of
post-hearing appeals that such a question of representation exists, it
shall direct an election * * * (Emphasis added).
The language that would be added by the Bill forbids a direction of
election until a review is completed of post-hearing appeals. As a
consequence, the language in Section 3(b) of the Act which provides
that Board review of a regional director's actions does not act as a
stay would become irrelevant to the timing of an election because,
under the Bill, a direction of election cannot issue at all until a
review has been made of any appeal.
As a consequence, elections could be held up for years based upon
the most frivolous appeal for review. Because the Board will lose its
discretion and will be required to conduct a review in all cases, its
processes would be even slower.
Unlike the current process in which pre-election Board review is
discretionary, and unlike the proposed rules under which Board review
would consolidated into one post-election review process, the Bill
would mandate pre-election Board in every case, regardless of
relevance, materiality, or merit. The Board's caseload would
dramatically increase and its timelines would correspondingly lengthen.
The end result would be to deny to employees indefinitely the
``fairness and democracy'' they seek when attempting to organize. They
would file a petition to have an election to choose whether to have
union representation and watch their efforts evaporate in a morass of
legalese and litigation.
Lines 10 through 14 of page four of the Bill would mandate that no
election could take place in less than 35 calendar days following the
filing of a petition.
This would apply even where the union and employer are willing to
stipulate to an earlier date. Other than facilitating an employer in
ramping up an anti-union campaign, it does not appear to have any
It is respectfully submitted that these provisions of the Bill
should be rejected.
4. Lists of Eligible Voters
The initial requirement of a list of eligible voters was
established in 1966 through Board adjudication in Excelsior Underwear
Inc.,\21\ where the Board established a prospective requirement that
within seven days after direction of an election or approval of an
election agreement, the employer must file with the Regional Director,
``an election eligibility list, containing the names and addresses of
all the eligible voters.'' The Board, in Excelsior, recognized that
rules governing elections cannot remain in stasis, but should change
The rules governing representation elections are not, however,
``fixed and immutable. They have been changed and refined, generally in
the direction of higher standards.'' \22\
Id. at 767. The Supreme Court upheld the authority of the Board to
require such information, in NLRB v. Wyman Gordon Company, 394 US 759
(1969). Therein, the Court noted:
We have held in a number of cases that Congress granted the Board a
wide discretion to ensure the fair and free choice of bargaining
representatives. [citations omitted] The disclosure requirement
furthers this objective by an informed employee electorate and by
allowing unions the right of access to employees that management
already possess. It is for the Board and not for this Court to weigh
against this interest the asserted interest of employees in avoiding
the problems that union solicitation may present.
The same privacy and similar arguments as were presented over 50
years ago are still being raised in response to the Board's proposed
rule amendments. The proposed rules would change the procedures with
respect to production of voter lists by requiring that the list contain
available telephone numbers and e-mail addresses for each voter. 76
Fed. Reg. at 36820, Sec. 102.67(j).
In apparent response to the Board's proposed rule amendments; the
Bill proposes, at lines 15 to 24 of page 4, to insert the following
language into the statute:
``Not earlier than 7 days after final determination by the Board of
the appropriate bargaining unit, the Board shall acquire from the
employer a list of all eligible voters to be made available to all
parties, which shall include the employee names, and one additional
form of personal employee contact information (such as telephone
number, email address or mailing address) chosen by the employee in
This provision requires a giant leap backward from what has been
the state of Board procedure for over 50 years. It provides that ``not
earlier'' than seven days after a final determination of a bargaining
unit by the Board, an employer will provide to the Board one form of
employee contact authorized in writing by the employee.
The Bill does not even require that this truncated information be
in turn provided to a petitioning union. It requires that this
information never be provided so long as there remains outstanding a
question of the inclusion of even a single employee in a bargaining
Employers have access to all of this information with which to
bombard employees with anti-union propaganda on top of their full-time,
in-person access to employees in the worksite.
There can be little argument that providing an effective means of
communicating with workers would enable information-sharing and a more
informed electorate. Yet, the Bill is aimed at less communication, and
particularly at less worker-union communication. Workers are denied the
ability to obtain information from the union while at work and the
union has no independent means of learning workers' addresses, phone
numbers or emails.
It is also remarkably telling what the Bill does not mandate. It
does require the ``contact information * * * chosen by the employee in
writing'' be made private and remain confidential from their
supervisors and employers. It does not provide employees with a means
to limit communications from the employer. It does not protect
employees from being required, under pain of discharge, from attending
and listening to all manner of employer communications at any time
during their workday. Almost 90% of companies in which workers want to
form a union require workers to attend such captive audience
meetings.\23\ Workers who presumably are being protected from union
communications are still being forced to give attention to mandatory
employer communications or be fired.
The language of the Bill in this regard is not comprehensible in
the context of workforce fairness and democracy.
It is respectfully submitted that the so-called ``Workplace
Democracy and Fairness Act'' is anti-democratic and grossly unfair. It
is another attack on workers' rights. It should be rejected in its
\1\ This analysis assumes that the drafters of the Bill considered
the ``first sentence'' of 9(b) to end with the colon preceding its
proviso, and does not intend to eliminate the proviso language.
\2\ General Electric Co., 170 NLRB 1272 (1968); Bedford Shoe Co.,
117 NLRB 259 (1957).
\3\ Pacific Maritime Assn., 185 NLRB 780 (1970).
\4\ NLRB v. Ideal Laundry & Dry Cleaning, 330 F2d. 712 (10th Cir.
\5\ RN Market, Inc., 190 NLRB 292 (1971).
\6\ NLRB v. Metropolitan Life Ins. Co., 380 US. 438 (1965).
\7\ The Board's authority to promulgate those rules was challenged
and ultimately upheld in American Hospital Association, supra.
\8\ Mallinckrodt Chemical Works, 162 NLRB 387 (1967).
\9\ S. Rep. No. 766, 93rd Cong., 2d Sess. 5 (1974); H.R. Rep. No.
1051, 93rd Cong., 2d Sess. 7 (1974).
\10\ NLRB v. HMO International, 678 F2d 806 (9th Cir. 1982);
Southwest Community Health Services v. NLRB, 726 F2d. 611 (10th Cir.
\11\ IBEW Local 474 v. NLRB, 814 F2d 697 (D.C. Cir. 1987).
\12\ P. Ballantine & Sons, 141 NLRB 1103 (1963).
\13\ Almost a decade ago, in Croft Metal, Inc., 337 NLRB 688, 688
(2002), the Board held that a hearing should be conducted ``not less
than 5 days'' after notice of the hearing ``absent unusual
\14\ ``Representation Cases Best Practices Report,'' Gen. Couns.
Mem. 98-1, at 2 (Jan. 26, 1998).
\15\ Guide for Hearing Offices in NLRB Representation Proceedings
\17\ Utica Mutual Ins. Co. v. Vincent, Regional Director, 375 F2d.
129 (2d. Cir. 1967).
\18\ Proposed Rule 102.67.
\19\ 29 CFR 102.67 (1961).
\20\ Magnesium Casting Co. v. NLRB, 401 US 137 (1971).
\21\ 156 NLRB 1236 (1966).
\22\ 156 NLRB at 1239, quoting Sewall Mfg. Co., 138 NLRB 66 (1962).
\23\ Bronfenbrenner, Kate, ``No Holds Barred: The Intensification
of Employer Opposition to Organizing,'' EPPI Briefing Paper #235
(2009); available at: http://epi.3cdn.net/edc3b3dc172dd1094f--
Chairman Kline. Thank you, sir.
Mr. Russell, you are recognized.
STATEMENT OF PHILLIP RUSSELL, ATTORNEY,
Mr. Russell. Thank you. Mr. Chairman, Ranking Member
Miller, Representative Ross, thank you for the introduction,
and all members of the committee. It is truly an honor and
professionally to participate in the legislative process. I
cannot think of a better less for my daughter, Madison, who is
here with me today. So thank you all very much. We both
I am also wearing a purple ribbon today just to show my
support for the Spring of Tampa Bay. This is Domestic Violence
Awareness Month, so I would like to remind the audience of
that, as well. I support the Spring, which provides victims
safety, hope, and renewal.
I support this bill. As a practicing labor lawyer and
employment lawyer for over 16 years, and also as that kid who
at 14 years old started bagging groceries and stocking shelves
for grandparents' grocery store, I will tell you my Mamaw is
still the toughest boss I have ever had.
But I have had the opportunity to work with a lot of
clients when dealing with labor campaigns. And yes, I am a
management-side lawyer. But I will tell you what that means for
me. What it has meant for me is that I have focused on
employees' rights. And that is why I think this bill should be
supported and it should become the law of the land.
Because I believe that what the National Labor Relations
Board has done is to ignore employees' rights in favor of union
rights, or in favor of giving unions greater access. And so I
want to focus my comments today--and my written material is
also focused on--two rights, in particular, for employees. And
that is the right to vote because I believe that everybody in
the workplace should have a say on whether or not there is
going to be a union.
Not just a handpicked few by union organizers. And that is,
what Specialty Healthcare essentially allows is, it allows the
union to come in and organize only one part of a grocery store.
And I am going to use a grocery store as an example not only
because it was my family business way back when, but it was
also one of my most recent campaigns.
The union, in that case, came in and tried to organize just
the natural foods employees. And under the law at the time, the
board ultimately, after we had a hearing, the regional director
had to make the correct decision that you could not organize
just the employees in the natural foods department. That it had
to be a wall-to-wall unit.
You had to represent everybody. Because why does that make
sense? In a grocery store, employees that work in produce,
employees that are baggers, they stock shelves, they work in
natural foods they have to help each other out. And if you had
multiple bargaining units, with multiple unions perhaps
representing different groups of employees, you are going to
have essentially a management nightmare.
How are you going to allow employees to go from department
to department to cover absences, for example? How can employees
advance in their careers if they want to get out of bagging
groceries and get into the produce department. Typically,
bagging groceries is a starting job. You want to move up in the
grocery store business, and you want to move into a different
department and perhaps into management someday.
How can you do that if you have got yet another barrier to
advancement in the workplace? And that is why I think this
dividing employers and businesses into subunits gets in the way
of employees' rights. And instead of allowing one small group
of employees to vote, I think it is better policy and should be
the law of the land, as it was before Specialty Healthcare,
that everybody needs to get a right to vote on whether there is
a union in the workplace.
I also believe that there is another reason. And I am going
to look at this from the perspective of my human resources
colleagues, my friends at HR Florida and HR Tampa. They are
going to have multiple policies, multiple hiring processes,
multiple disciplinary rules, multiple benefit plans to
You are going to have to hire more employees. This is going
to cost businesses more money. And in today's economic climate,
the more cost to small businesses means less jobs. So I think
that it is also going to have a negative impact on the economic
recovery we are trying to work our way through.
Another reason why I support this bill is the access to
information. If you are a union organizer, you do not start
your election on the day the petition is filed. You target that
employer weeks or months in advance, you go get the support
that you can get, you work your way towards getting as many
authorization cards signed as you possibly can get, and you do
not tell the employer.
You do not go knock on the door and say, ``Mr. Grocery
Store Manager, I would like to organize your employees. Do you
mind if I get some names, addresses, and phone numbers?'' You
do not tell them. Smart union organizers are going to go do
this in people's kitchens, they are going to knock on their
doors and they are going to ask their friends to introduce them
to their friends. And they are going to get their cards signed,
and they are going to ask them not to tell anybody and to keep
it quiet until they get enough support.
Then the petition is filed. And under the board's proposed
rulemaking, the employer may have 10 days in which to respond
to the union which has had weeks or months? That is not fair,
and that is where the fairness part comes in to this bill. I
think not only everybody should have a right to vote, but
everybody should have a right to information from both sides.
So after having heard from the union organizers, full-time
professionals, to go out and to get them to support the union I
think it is fair. And from the employees' perspective, their
right to information will be supported by this bill because
they will get better information before they make their
decision. And they will not be forced to do so quickly.
Those are the reasons I support the bill. Thank you again,
all, very much for having me out today.
[The statement of Mr. Russell follows:]
Prepared Statement of Phillip B. Russell, Shareholder,
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Nothing in this testimony should be construed as legal advice for
any particular facts or situation. Moreover, this testimony is based on
my own personal view and not those of Ogletree Deakins or any of its
I. Executive summary\1\
The Workforce Democracy and Fairness Act, H.R. 3094 (WDFA),
addresses the National Labor Relations Board's (NLRB or Board)
overreaching decision in Specialty Healthcare, 357 NLRB No. 83 (August
26, 2011), and the Board's proposed changes to election procedures.
\1\ I would like to thank my colleagues, Harold P. Coxson, Jr. and
Matthew Levine, for their assistance in drafting this written
In both Specialty Healthcare and its proposed election procedure
changes, the NLRB has greatly overstepped its statutory authority and
worse, trampled on employees' rights to vote and to get sufficient
information from both union organizers and the company before being
forced into a quick decision.
The WDFA has two primary components. First, it will protect the
right of all employees in a workplace to vote on whether or not to have
a union. Under Specialty Healthcare, a union organizer could target,
organize, and ultimately fragment the workplace into sub-units of
employees. The WDFA codifies the ``community of interest'' test the
Board has historically used to determine an appropriate bargaining
(1) similarity of wages, benefits and working conditions;
(2) similarity of skills and training;
(3) centrality of management and common supervision;
(4) extent of interchange and frequency of contact between
(5) integration of the work flow and interrelationship of the
(6) the consistency of the unit with the employer's organizational
(7) similarity of job functions and work; and
(8) the bargaining history in the particular unit and the industry.
In contrast, in Specialty Healthcare, rather than use these time-
tested factors, the Board wants to presume that a unit composed of
employees performing the same job at the same facility is presumptively
appropriate. Under the WDFA, all employees in a workplace would get to
participate in a campaign and have a right to vote on a union, not just
a select few.
The second major component of the WDFA is that it will protect
employees' right to information before they are forced to vote on
whether or not to have a union. In June 2011, the Board proposed a
series of changes to the election procedures governing elections. One
of the most dramatic changes is throwing out the traditional 42-day
election period and reducing it to as little as 10 days. This change
will effectively take away employees' right to get adequate information
from their employer after having been bombarded with sales pitches by
professional union organizers for weeks, if not months.
For these reasons, and the detailed reasons stated below, I support
the Workplace Democracy and Fairness Act.
A. The WDFA Would Protect Employees' Right to Vote
The Workforce Democracy and Fairness Act (WDFA) is designed, in
part, to correct the National Labor Relations Board's over-stepping in
Specialty Healthcare, 357 NLRB No. 83 (2011):
The key issue is whether a small group of employees
performing the same job at a single location constitute an individual
bargaining unit. The Board's decision in Specialty Healthcare will
affect an estimated six million workplaces covered by the National
Labor Relations Act. The Board historically has applied a clear set of
standards in determining a unit appropriate for bargaining, which the
Specialty Healthcare case turned upside down, without any rational
The impact will lead to an explosion of ``micro-unions''
within an entire workforce or across multiple locations; and will make
it easier for unions to cherry-pick the unit of employees most likely
to support the union and separate it from co-workers, effectively
For example, a union may choose to organize poker dealers
at a casino, rather than all dealers, because it knows the poker
dealers support the unions, while the blackjack, craps, roulette and
other dealers may not. Similarly, a union may organize a small group of
employees working on one machine rather than all machinists in a
manufacturing facility, because the majority of machinists do not want
union representation. Another example is a grocery store. Using
Specialty Healthcare, multiple labor unions could target and organize
different groups of employees, such as cashiers, produce employees,
baggers, stockers, and others. A single store with one entrance, one
payroll, one set of policies and practices, one organizational chart,
could be essentially Balkanized by sub-units of employees. Multiple
contracts over multiple years covering multiple groups of employees
would simply be unmanageable.
These fractured units also will greatly limit an
employer's ability to cross-train and meet customer and client demands
via lean, flexible, staffing as employees could not perform work
assigned to another unit. The impact on business productivity and
competitiveness would be significant. Employees also would suffer from
reduced job opportunities as promotions and transfers would be hindered
by organization-unit barriers.
While the issue presented in Specialty Healthcare was potentially
narrow--whether a unit composed solely of certified nursing assistants
(``CNAs'') is an appropriate unit--it now raises broad concerns for
employers in all industries, including the nonacute healthcare industry
in particular. The Board's decision in Specialty Healthcare portends a
sweeping change in the standard for unit determinations in all
industries regulated by the Act.
The standard used by the Board majority in Specialty Healthcare
holds that a unit composed of employees performing the same job at the
same facility is presumptively appropriate. This standard has serious
economic ramifications for the non-acute health care industry, at a
time when the nation is attempting to provide affordable universal
healthcare. It would lead to the proliferation of smaller, fragmented
units, and therefore increase the likelihood of strikes, jurisdictional
disputes, and other disruptions to operations--all of which is contrary
to the national labor policy in the health care industry. With this
standard now being applied in the other industries regulated by the Act
(based on the broad language of the Board's decision in Specialty
Healthcare), it will have the same disruptive and costly impact on
those industries, many of which are still struggling to recover and
create new jobs after a prolonged recession.
Changing the unit determination standard in this manner might lead
to increased union organizing in the short-term, but it will not result
in meaningful collective bargaining in the long-term. Bargaining with a
small unit of employees, which excludes many other employees who share
a substantial community of interest whose work is integrated and
interdependent, will be more costly and less likely to succeed.
Ultimately, the Board has a statutory responsibility to approve
bargaining units that are not only appropriate for organizing, but also
for collective bargaining.
The WDFA forces the Board to adhere to its longstanding precedent
in unit determination cases, which strikes an appropriate balance
between the statutory goals of allowing employees to exercise their
right to organize and bargain collectively, while at the same time
promoting industrial peace and minimizing interruptions to commerce
through effective collective bargaining. With an economy showing no
immediate signs of recovery and a Board that has lost its way, adoption
of the WDFA is needed now more than ever before.
1. the board should adhere to its longstanding precedent concerning the
scope of appropriate bargaining units
In Specialty Healthcare, the Board concluded that a bargaining unit
should be presumptively appropriate, in all industries, if it includes
only those employees who perform the same job at a single facility. The
argument for such a standard is set forth in the dissenting opinion of
Member Becker in Wheeling Island Gaming, Inc., 355 NLRB No. 127 (2010).
In that case, dissenting Member Becker argued that a petitioned-for
unit consisting only of poker dealers at a casino is an appropriate
unit, even though it excludes blackjack dealers and croupiers at the
same casino. As the majority opinion noted, however, such a unit would
be inconsistent with the Board's longstanding precedent, which holds
that the interests of the employees in the unit sought must be
``sufficiently distinct from those of other employees to warrant the
establishment of a separate unit.'' Id., slip op. at 1 n.2 (quoting
Newton-Wellesley Hospital, 250 NLRB 409, 411-12 (1980)). Now, it
appears that the Board is abandoning that longstanding precedent, in
favor of a standard that would find a unit appropriate regardless of
whether there are other employees who share a substantial community of
interest with the employees in that unit.
Reversing longstanding precedent in this manner is contrary to the
fundamental purposes and polices of the Act. Member Becker has argued
that the Board's precedent in unit determination cases ``have
accumulated into complex and uncertain jurisprudence that threatens to
thwart employees' efforts to exercise their right to choose a
representative.'' Wheeling Island Gaming, 355 NLRB No. 127, slip op. at
3. This argument ignores that the Act does not exist simply to
facilitate and protect organizing in whatever unit a group of
employees, or the petitioning labor organization, views to be the most
desirable and advantageous, but the intent of the Act is also to foster
and protect collective bargaining as a means of promoting industrial
peace. See Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 211
(1964) (``One of the primary purposes of the Act is to promote the
peaceful settlement of industrial disputes by subjecting labor-
management controversies to the mediatory influence of negotiation.'');
Local 24, Int'l Bhd. of Teamsters v. Oliver, 358 U.S. 283, 295 (1959)
(``The goal of federal labor policy, as expressed in the Wagner and
Taft-Hartley Acts, is the promotion of collective bargaining * * * and
thereby to minimize industrial strife.''); NLRB v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 42 (1937) (``A fundamental aim of the National
Labor Relations Act is the establishment and maintenance of industrial
peace to preserve the flow of interstate commerce.'').
Section 9(c)(5) of the Act was added to reinforce that the Board
should not make unit determinations with a singular focus on the
desires of the petitioning employees or labor organization. Thus,
Section 9(c)(5) provides that ``the extent to which the employees have
organized shall not be controlling'' in the Board's unit
determinations. 29 U.S.C. Sec. 159(c)(5) (emphasis added). The Board
cannot, as suggested by Member Becker in Wheeling Island Gaming, and as
implied by Specialty Healthcare, comply with Section 9(c)(5) merely by
pointing to some community of interest factors that are consistent with
the extent of the union's organizing effort. Wheeling Island Gaming,
355 NLRB No. 127, slip op. at 3 n.2. The Board has a statutory
responsibility to ensure that its unit determinations will ultimately
promote stable and effective collective bargaining relationships. In
the rulemaking for acute care hospitals, the Board recognized that its
goal ``is to find a middle-ground position, to allocate power between
labor and management by `striking the balance' in the appropriate
place, with units that are neither too large or too small.'' 53 Fed.
Reg. 33,904 (1988).\2\
\2\ Academic literature describes the economic reasons for striking
an appropriate balance between units that are neither too large nor too
small. See Douglas L. Leslie, Labor Bargaining Units, 70 VA. LAW REV.
353, 408-09 (1984).
The purposes of the Act are not served by making unit
determinations that exclude groups of employees who share ``a
substantial community of interest with employees in the unit sought.''
Colorado Nat'l Bank of Denver, 204 NLRB 243, 243 (1973). For this
reason, the Board historically has not approved of ``fractured
units''--units that ``are too narrow in scope or that have no rational
basis.'' Seaboard Marine, Ltd., 327 NLRB 556, 556 (1999). Fragmented
bargaining units may also effectively disenfranchise certain groups of
employees, a result that is also contrary to the policy of the Act.
Member Becker argues that American Cyanamid Co., 131 NLRB 909
(1961), supports a sweeping presumption--one that would apply in all
industries--that a unit of ``all employees doing the same job and
working in the same facility'' should be approved absent ``compelling
evidence that such a unit is inappropriate.'' Wheeling Island Gaming,
355 NLRB No. 127, slip op. at 2. No such presumption can be drawn from
American Cyanamid. To the contrary, in finding a unit of maintenance
employees to be appropriate in that case, the Board specifically
disavowed any presumption in favor of a maintenance-only unit in other
cases: ``collective-bargaining units must be based upon all the
relevant evidence in each individual case.'' American Cyanamid, 131
NLRB at 911 (emphasis added). Consistent with the statutory mandate to
foster industrial peace through effective collective bargaining, ``each
unit determination must have a direct relevancy to the circumstances
within which collective bargaining is to take place.'' Id.
Thus, the Board's unit determinations have long considered, and
should continue to consider, whether the scope of a proposed unit makes
sense from the standpoint of the collective bargaining that will take
place if the union prevails in the election. The Board should not, as
Member Becker suggests, simply approve the narrowest unit sought by the
petitioning labor organization and then leave it to the parties to
reshape the unit if their ``experience with collective bargaining
suggests to them that bargaining would be more productive in a larger
or differently contoured unit. * * *'' Wheeling Island Gaming, 355 NLRB
No. 127, slip op. at 2. To do so would undermine the stability of the
work environment and the various relationships between employees,
employers and unions. The Board has a statutory responsibility to make
that determination in advance, and to withhold approval of bargaining
units that are not suitable to effective collective bargaining.
2. the board should not have, in the context of a case arising in the
nonacute healthcare industry, reexamined the standards applied in all
Although Specialty Healthcare arose in the nonacute health care
industry, the Board extended its misinformed ruling to most industries
within the Board's jurisdiction. Specialty Healthcare, 356 NLRB No. 83,
slip op. at 20. This is a dangerous proposition. It is contrary to the
Board's decision in American Cyanamid, which recognized that
appropriate unit determinations are individualized determinations that
``will vary from industry to industry and from plant to plant.''
American Cyanamid, 131 NLRB at 911. The Board's determination as to the
scope of a proposed CNA-only unit in the nonacute healthcare industry
should not have given rise to a presumption that would apply in the
many other industries regulated by the Act.
The Board asserts that ``[i]ndustry-specific rules are the
exception, not the norm.'' Specialty Healthcare, 356 NLRB No. 56, slip
op. at 3. Yet, the healthcare industry clearly is one such exception,
given the rulemaking and pattern of decision-making that formed the
backdrop for this case. Unit determination standards developed in this
industry should not be the vehicle for creating a new presumption for
all other industries.
Unit determinations in other industries are based on different
considerations and patterns of decision-making. In the utility
industry, for instance, there is a presumption in favor of system-wide
bargaining units. See Alyeska Pipeline Serv. Co., 348 NLRB 808, 809
(2006); Baltimore Gas & Elec. Co., 206 NLRB 199, 201 (1973); Colorado
Interstate Gas Co., 202 NLRB 847, 848 (1973); Louisiana Gas Serv. Co.,
126 NLRB 147, 149 (1960). This presumption rests not only on community
of interest factors, but also on the fundamental policy objective of
the Act--minimizing interruptions to commerce resulting from labor
disputes. See Alyeska Pipeline, 348 NLRB at 812 (``The Board's
presumption in favor of a systemwide unit is based, at least in part,
on the judgment that an increase in the number of units leads to an
increase in the number of potential labor disputes and work
stoppages.''); Baltimore Gas, 206 NLRB at 201 (``That judgment has
plainly been impelled by the economic reality that the public utility
industry is characterized by a high degree of interdependence of its
various segments and that the public has an immediate and direct
interest in the uninterrupted maintenance of the essential services
that the public utility industry alone can adequately provide.'').
There are also unique considerations and patterns of decision-
making in other industries that play a major role in the national
economy, including the trucking industry, the maritime industry, the
hotel industry, the retail food industry, the television and radio
industry, the newspaper industry, the construction industry, and in
higher education. The Board should not have, in the context of a case
arising in the nonacute healthcare industry, attempted to fashion a new
unit determination standard that now applies in all of these
industries. The standards to be applied in any industry should be
determined only in a case arising in that particular industry, after
full development of the unique facts and circumstances and patterns of
collective bargaining that exist in that industry.
The Board suggests that changing the unit determination standard
may help prevent litigation over the scope of a proposed bargaining
unit. Specialty Healthcare, 356 NLRB No. 56, slip op. at 3. This is not
a sensible reason to upset the unit determination standard in all
industries. Under the current standard, litigation concerning the scope
of a bargaining unit is rare; over 90% of elections are conducted
pursuant to a stipulation. See Office of the General Counsel, Summary
of Operations (Fiscal Year 2010), Memorandum GC 11-03 (Jan. 10, 2011)
(reporting that 92.1% of representation elections in FY 2010 were
conducted pursuant to agreement of the parties, compared to a 91.9%
election agreement rate in FY 2009).\3\ Changing the unit determination
standard will produce more, not less, litigation because well-
established precedent is now called into question and the parties will
have an incentive to litigate in an effort to shape the law under the
new standard. For this reason as well, the Board should not have
engaged in a sweeping revision of its existing unit determination
\3\ In Wheeling Island Gaming, Member Becker asserted that
``litigation, often protracted litigation, over the scope of the unit
occurs prior to almost every contested election.'' 355 NLRB No. 127,
slip op. at 3. This is a cleverly worded but misleading statement,
given that the overwhelming majority of Board elections are not
contested. And, of that small minority of cases that are contested,
many do not involve issues of unit scope. They frequently involve
issues of unit composition (e.g., exclusion of supervisors) and related
3. the wdfa will fix the problems created by specialty healthcare and
codify the board's long-standing precedent
The WDFA will address the issues highlighted above in the following
Bargaining Unit Determination--To limit proliferation and
fragmentation of bargaining units, the legislation codifies the test
used prior to Specialty Healthcare. Bargaining units are made up of
employees that share a ``sufficient community of interest.'' In
determining whether employees share a ``sufficient community of
interest'' the Board will weigh eight factors, including similarity of
wages, working conditions and skills. The Board will not exclude
employees from the unit unless the interests of the group sought are
sufficiently distinct from those of included employees to warrant the
establishment of a separate unit. (Section 2(1), starting on page 2
line 2, ending on page 3 line 1.)
Bargaining Unit Challenges--To ensure employers can
dispute union-proposed bargaining units, WDFA codifies the test used
prior to Specialty Healthcare. Any party seeking to enlarge the
proposed bargaining unit must demonstrate that employees in the larger
unit share a ``sufficient community of interest'' with those in the
proposed unit. (Section 2(1), starting on page 3 line 2, ending on page
3 line 11.)
B. The WDFA Would Protect Employees' Right to Make a Fully
Informed Decision In an Election
In addition to the Specialty Healthcare bargaining unit issue, the
WDFA also addresses the election rules issues raised by the Board's
recent rulemaking attempt to use ``quickie'' elections and other
changes to the Representation Case (or ``R-case'') procedures in union
campaigns. The NLRB's proposed R-case rules would place excessive
burdens on all businesses covered under the Act and would be unfair to
employees. The WDFA is intended to protect employees and employers
alike from such harsh consequences.
Initially, it is highly inappropriate and ill-advised for the NLRB
to propose new regulatory burdens on the backs of business at a time
when the country is struggling to recover from economic recession,
stimulate business investment and job growth, and reduce unemployment.
The NLRB's proposed historic overhaul of its Representation-case rules
flies in the face of President Obama's Executive Order 13563 and
admonition to government agencies not to promulgate new regulations
unless absolutely necessary, and to review existing regulations which
would unduly and unnecessarily burden business, especially smaller
In fact, the new rule would impose significant cost burdens on
smaller businesses forced to invest the time and resources necessary to
prepare for Representation-case hearings within as little at seven
calendar days notice (in reality 5 working days), prepare a much more
detailed ``Excelsior list'' within two days thereafter, and prepare for
an election within as little as ten days from the date of the petition,
and then prepare for a post-election challenge to unit questions and
voter eligibility. The employer is likely to be un-counseled and
susceptible to inadvertent unfair labor practices.
All of the foregoing nearly eviscerates the ability of the employer
to communicate with its employees and the ability of employees to
obtain all the information necessary to make an informed decision. Just
as union organizers are entitled to campaign among employees, employers
have an equal right under the Act to express their opinion as to how
unionization may affect the business, employees and customers. Absent
sufficient time for employees to hear and discuss both sides of
unionization with employers and fellow employees, the employees will
not be adequately informed prior to voting, and thus will not have a
meaningful opportunity to exercise their right under the Act to support
or refrain from supporting a union.
Americans are not very familiar with unions. Most small businesses,
indeed most employees, know very little if anything about unions, union
organizing, and union elections. They are working hard, struggling to
survive in a down economy and to compete in a global economy which
threatens their jobs and their businesses. Until recently, when certain
Board actions elevated the agency in notoriety, most people had not
heard of the NLRB, and gave little thought to unions, union organizing,
and collective bargaining.
With ``quickie'' election rules in place, there will be little time
to educate employees and prepare a response to a union organizing
campaign so that employees will be fully and fairly informed prior to
the election. This is especially true for employees of smaller
businesses--the ones whom the NLRB Chairman now certifies as
experiencing no significant economic impact. In fact, the real cost for
small business--the real economic impact--is taking the time and
resources away from productive endeavors and job creation, and
diverting them to preparing for ``quickie'' elections and ``quick
snap'' organizing campaigns even if they never come.
But the Board Majority simply chooses to ignore the economic impact
of the rule or offer alternatives for small business under an Initial
Regulatory Flexibility Act Analysis. Indeed, given the fast-moving
train running on the current proposal one may wonder whether the final
rule has already been written. The more the Board rushes to ram these
rules through the process, the more one senses that the final rule, in
the words of dissenting Board Member Brian Hayes, is a ``fait
accompli.'' As he said: ``The sense of fait accompli is inescapable.''
1. the proposed rules are excessive and unfair
The proposed rules are not small changes merely adapting to
``changing patterns of industrial life.'' 76 Fed. Reg. at 36816
(quoting NLRB v. Weingarten, 420 U.S. 251, 266 (1975)). As stated
recently in the public hearings on the proposed Representation-case
rule changes before the NLRB by former NLRB member Chuck Cohen, I know
and to an extent expect each Board appointed by a newly-elected
political Administration to push the envelope in deciding cases in one
direction or another--liberal/conservative, pro-union/pro-management.
But Mr. Cohen stated that the regulatory changes proposed here do not
push the envelope--they blow up the envelope. Statement of Charles I.
Cohen before the NLRB Public Meeting, June 18, 2011.
The Board's proposed rule focuses almost exclusively on the timing
of the representation election process, referring frequently to ``the
expeditious resolution of the election process.'' (See, e.g., 76 Fed.
Reg. at 36,812, 36,813, and 36,817). However, the proposed rule appears
to be concerned primarily with how rapidly it can push the election
timetable from the date of the filing of a petition to the election
itself. It pays less attention to what the Board claims as its
priority--the timing from the date of the petition until resolution,
including post-election procedures. In many cases the time saved at one
end of the process by deferring pre-election hearings on unit
determination and voter eligibility will more than be made up for by
delays at the other end in post-election litigation. The proposal's 20
percent rule and the rendering Board Review of Regional Director's
Decisions discretionary invite mischief as well.
``Quickie election'' proposals under the Act are not new. They have
been sought by organized labor for years to bail out its declining
union density. ``Quickie elections'' were a major part of the 1978
Labor Law Reform Act. Originally, labor sought time frames of 45 days.
The bill as introduced in the House called for 15-25 days depending on
complexity. The Senate bill provided for up to 21 days and the Senate
substitute was 35 days. Barbara Townley, Labor Law Reform in U.S.
Industrial Relations. Gower Publishing, 1986 at 124-125.
More recently organized labor sought to enact legislation that
simply would have done away with secret ballot elections--there would
have been no elections, only card check certification under the
Employee Free Choice Act (EFCA). See S. 560, 111th Cong., 1st Sess.
(2009); H.R. 1409, 111th Cong. 1st Sess. (2009). What unions could not
achieve through Congress, either under the 1978 Labor Law Reform Bill
and more recently through EFCA, they now seek to achieve through
rulemaking with the help of reliable compatriots in the Administration
and at the Board. As dissenting Board Member Hayes ruefully predicted,
``by administrative fiat in lieu of Congressional action * * * (the
proposed rules) will impose organized labor's much sought-after
`quickie election' option.'' 76 Fed. Reg. at 36,831.
An employer's free speech rights under Section 8(c) of the Act\4\
only has meaning if there is a realistic opportunity to speak. The
United States Supreme Court has characterized the Congressional policy
as ``favoring uninhibited, robust, and wide-open debate'' of matters
concerning union representation, so long as that does not include
unlawful speech or conduct. Chamber of Commerce v. Brown, 554 U.S. 60,
67-68 (2008). Limiting the reasonable opportunity for such uninhibited,
robust and wide-open speech is the equivalent of denying it altogether.
\4\ 29 U.S.C. Sec. 158 (c). Section 8(c) provides:
The expressing of any views, argument, or opinion, or the
dissemination thereof, whether in written, printed, graphic, or visual
form, shall not constitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such expression contains no
threat of reprisal or force or promise of benefit.
Allowing unions to control the timing of an election by campaigning
for as long as it takes to get sufficient signatures on authorization
cards from often harassed, brow-beaten employees, then springing an
election petition on the employer giving the employer only 10--21 days
(using dissenting Board Member Hayes's estimate) to respond is hardly
labor law equality. Unions will argue that the employer has the ability
to campaign against unionization from the employees' first days at
work.\5\ That ignores, however, the fact that what for many employees
is only white noise when discussed in the abstract, suddenly becomes
important when there is a particular union involved. Employees have
many questions after that. They want to know the union's record of
delivering on promises made during a campaign, its contracts negotiated
with other employers, its record of fair treatment of members and its
exercise of the duty of fair representation in arbitration, its record
of corruption, embezzlement, money laundering, and the like, and its
political contributions and other campaign support for political
candidates, and so on.
\5\ The fact is, however, that most businesses, especially small
businesses prefer to focus energy and resources on creating a strong
working relationship with their employees and developing business
opportunities. Moreover, these same employers are not sufficiently
sophisticated in labor matters to be so forward thinking. In fact, it
is more likely that small to mid-sized businesses will not know who the
NLRB is and what union organizing means to their company until a
petition for election is received.
2. ``quickie'' election rules are unnecessary
The irony is that if the goal of the rule change is to give unions
more opportunity to organize, which apparently it is, there is little
empirical evidence the ``quickie'' election rules are even necessary
given current record-setting election statistics both in terms of
timing and results. The only studies linking election deadlines with
union success are fundamentally flawed and self-serving drawing
exclusively on statements from union organizers or ignoring other more
\6\ See, e.g., two studies whose release in June 2011 appeared to
be coordinated with the NLRB's proposed Representation-Case Rules which
were published in the Federal Register as a NPRM on June 21. Kate
Bronfenbrenner and Dorian Warren, The Empirical Case for Streamlining
the NLRB Certification Process: The Role of Date of Unfair Labor
Practice Occurrence, ISERP Working Paper Series 2011.01 (2011); John
Logan, Erin Johansson, and Ryan Lamare, New Data: NLRB Process Fails to
Ensure a Fair Vote, Univ. of Cal. Berkely Res. Brief (June 2011). See
also, an earlier Bronfenbrenner study entitled No Holds Barred--The
Intensification of Employer Opposition to Organizing, May 20, 2009,
Economic policy Institute Briefing Paper #235, in which her
questionable collection methodology relied as the primary source of
anecdotal evidence interviews with the lead organizers involved in the
organizing campaigns and elections studied. See, Responding to Union
Rhetoric: The Reality of the American Workplace--Union Studies on
Employer Coercion Lack Credibility and Integrity, U.S. Chamber of
Commerce White Paper (2009).
In fact, if speed were the only basis for determining fair
elections, the Board is doing quite well, as demonstrated below and as
noted in Board Member Hayes' dissent at 76 Fed. Reg. at 36,831 n.5. As
stated in the proposed rule, over the past decade, Board supervised
secret ballot union representation elections have taken place within
the median time of 38 days from the date of the petition; in 2010 that
statistic was 31 days, far fewer than the Board's target of 42 days.
Contrast that with the record in 1960 when the median time was 82 days!
See 76 Fed. Reg. at 36,813-36,814.
Unions won a majority of elections throughout that same period,
with a 68.7 percent win rate in 2009 and 67.6 percent in 2010. See NLRB
Election Report (Oct. 19, 2010) and Board Member Hayes's dissent at 76
Fed. Reg. at 36,832. It is not the function of the NLRB to assure union
wins. The proposed rule states that it is ``unwarranted'' to assume
that the rules changes are designed to ``increase the election success
rate of unions.'' 76 Fed. Reg. at 36,829. While the Board describes
that goal as ``unpredictable and immaterial'' (76 Fed. Reg. at 36,829),
clearly that is not what unions believe. They openly tout these rule
changes, just as they touted EFCA, as a ``game changer'' whereby they
will increase union density.
3. the wdfa gives employees and employers their rightful voice in the
In recent years under both Democratic and Republican Majorities,
the Board lost credibility simply by going too far. The Board's
proposed Representation-case rules do much more than push the envelope
slightly in one direction or the other; they ``blow up the envelope''
entirely. The WDFA curbs this severe blow and addresses the issues
highlighted above as follows:
Voter Eligibility--To ensure employees know who will be in
their bargaining unit, know whether the issue of representation affects
them personally and avoid complications on eligibility, e.g., whether
an employee is a supervisor, the Board shall determine the appropriate
bargaining unit prior to an election. (Section 2(1), page 2 line 3.)
Scheduling of Pre-Election Hearing--Employers would have
at least 14 days to hire an attorney, identify issues, and prepare
their case for pre-election hearing. Employers and unions would have
the same 14 days to compromise and agree on election issues. (Section
2(2)(A), starting on page 3 line 14, ending on page 3 line 16.)
Identifying Issues in Dispute--Employers and unions could
independently raise any issue or assert any position at any time prior
to the close of the hearing. Employers and unions would be free to
raise issues as the hearing record develops, ensuring a fair and
effective pre-election hearing. (Section 2(2)(B), starting on page 4
line 3, ending on page 4 line 5.)
Pre-election Board Review--Employers and unions could file
post-hearing appeals with the Board, ensuring uniformity in Board
decisions and clarity prior to the election. (Section 2(2)(C)(i),
starting on page 4 line 7, ending on page 4 line 9.)
Timing of Election--The Board will conduct an election as
soon as practicable, but no less than 35 calendar days following the
filing of an election petition. Employers will have time to share their
opinions with employees, and employees will have time to become
educated so they may effectively judge whether or not they wish to be
represented by a union. (Section 2(2)(C)(ii), starting on page 4 line
10, ending on page 4 line 14)
Excelsior List--Rather than providing names and home
addresses, employers will be required to provide the union with names
and one additional piece of personal information of all employees on
the final vote list seven days after the pre-election hearing. The
additional piece of information, such as a personal phone number, email
address, or home address, will be chosen in writing by employees. This
will ensure employees can choose how to be contacted and protect
employee privacy. (Section 2(2)(D), starting on page 4 line 15, ending
on page 4 line 24.)
III. Conclusion and recommendation
Based on the foregoing, I support the Workforce Democracy and
Fairness Act as a means by which Congress can protect the rights of all
employees in a workplace to vote on unionization and their right to
information from all sides before being forced to vote. The WDFA is
also good for businesses, especially smaller businesses, because it
would prevent fragmented workforces in which management would be forced
to negotiate multiple contracts with multiple groups of employees or
have fundamentally different sets of policies, pay, and practices for
employees who are working side-by-side in their jobs. From a
macroeconomic perspective, the WDFA will also protect jobs because it
will avoid the unnecessary costs arising from fragmented workforces.
Chairman Kline. Thank you very much. I thank all the
witnesses for your testimony. It is clear that we have a panel
of experts. All of you heeded my request on timing. This is the
most precise in abiding by the green-yellow-red lighting system
I think that we have seen here. Thank you very much for that.
We are going to move to questions now. And I will ask my
colleagues to please try to limit themselves to 5 minutes. I
will drop the gavel relatively quickly if we start extending.
Okay, I recognize myself.
There is apparently some disagreement here over what
``Specialty'' means and who it applies to. Clearly, we were
addressing this in this legislation. So let me start, Mr.
Cohen, with your experience with the board. Prior to this
Specialty ruling, what standard has the board applied to
determine corporate union bargaining units?
Mr. Cohen. Thank you very much, Chairman Kline. I think
perhaps the best way to describe the community of interest and
the distinction of interest and the various language pieces
that come about is with a very practical example, if I could
please give it.
Chairman Kline. Please.
Mr. Cohen. There is a case called Wheeling Island Gaming,
which was the predecessor to our situation here. In Wheeling
Island Gaming--that was a casino, obviously--the union sought
to organize a unit limited to blackjack dealers. The employer
said, ``Hold it. The smallest appropriate unit would have to
include poker dealers and some related individuals, as well.''
The case went to the board. The board decided that the
blackjack dealers was too small of a unit. There was a dissent
in that case by Member Becker, sole dissent. That was then teed
up in Specialty Healthcare, which is being palmed off as a
health care institution case. In Specialty, the board said,
``We want to consider, for all industries, how to change these
So what did the board do? They issued Specialty Healthcare
on its facts, but then expanded it to virtually all industries.
Chairman Kline. So if I could interrupt. So going back to
the casino, following Specialty it is your belief that those
blackjack dealers could be formed into a union, and the poker
dealers formed into a union and the cashiers at the window. I
assume you go to a window to cash in your chips or something. I
never have any cash-in, but something like that.
So you could have multiple bargaining units inside that
casino, and that has nothing to do with health care, acute
care, or any other kind of care.
Mr. Cohen. That is correct. There is one thing that the
employer can do is, it can go to a hearing, under Specialty,
and say, ``Look, there is something called an overwhelming
community of interest between the poker dealers and the
blackjack dealers.'' And if the employer can prove that
overwhelming community of interest standard, then the smallest
unit would have to include both of them.
But we do not know what an overwhelming community of
interest is in these circumstances. It is not a concept which
has been prevalent in representation election questions. It is
a different concept. So we have an artificial wall created
here, with an opportunity of the employer to try to prove
something which would be exceptionally hard to prove.
And in my judgment, a career NLRB regional director would
be compelled in almost every case to find that a collective
bargaining unit composed exclusively of the blackjack dealers
that would, be the order of the day.
Chairman Kline. Thank you. And so in Mr. Russell's example,
this could apply everywhere. He talked about a grocery store--I
think it is a terrific example--where you have people in the
meat department, the grocery department, the baggers, the
stockers, the cashiers. And all of those could be, and would
almost necessarily have to be, recognized as a bargaining unit.
Back to you, Mr. Cohen. This bill that is before us, would
that--this legislation, the four-page, this four-page bill, I
know it is less than 1,000 pages so sometimes it is hard for us
to face that--would that address the concerns that you have
just told us about?
Mr. Cohen. I believe it would. It would, in my judgment,
restore us to the law before August 26, which is all that that
aspect of the bill would deal with. And then if we also go back
to the proposed quickie election rules it would also eliminate
those. We have had, for decades, very well-oiled machinery in
place for determining employer positions, going to hearings if
But in over 90 percent of the cases, employers do not even
go to hearings and elections are held very quickly and unions
win substantial numbers of elections, virtually two out of
three, but that is not enough in the environment we are in now.
What this attempt is to do is to gerrymander the unit into
something micro, and then have an election before there is an
opportunity to respond to it.
Chairman Kline. Thank you.
Mr. Cohen. So this bill would help very much in restoring
the situation to where we were.
Chairman Kline. Thank you. My time has expired.
Mr. Miller, you are recognized.
Mr. Miller. Thank you very much, Mr. Chairman. Thank you to
all of the panel for your testimony.
Mr. Hunter, as I dig through this legislation, I do not see
how you get to an election against a determined--mildly
determined perhaps, under this legislation--employer? How do
you get there?
Mr. Hunter. I do not think you get there for years, as a
practical matter. Because the way this legislation reads, no
direction of election can be made until review has been had of
any issue in that case. And as a----
Mr. Miller. That is not a discretionary decision.
Mr. Hunter. It is not a discretionary decision because it
is now mandatory. Which means instead of the small number of
cases for which review is actually granted, every single case
will have to go for review. As a consequence, it is going to
cost the board a tremendous amount of money to do that instead
of effectuate the other purposes of the act.
And it is going to plug up the procedure, and it is going
to take years.
Mr. Miller. Under current law, those issues are raised at
the regional level. Is that correct?
Mr. Hunter. Well, under current law those issues, those
pre-election issues, are raised before a regional director and
an employer can seek review. But only if review is granted.
Mr. Miller. How many of those, what percentage of those,
issues raised at the regional level are----
Mr. Hunter. A very small, extremely small, percentage of
Mr. Miller [continuing]. Forwarded for review?
Mr. Hunter [continuing]. Are granted. And in some cases,
even where review is granted--for example, in some cases
review--review will be granted over a discrete question as to
Mr. Miller. Five percent of the cases, 1 percent of the
Mr. Hunter. Yes, a certain set of people, or supervisors,
or something. Then even when review is granted, those
individuals area simply allowed to vote under challenge.
Mr. Miller. And then the process goes forward.
Mr. Hunter. Yes.
Mr. Miller. Under the proposed legislation, the process
stops until there is a review of every one of those----
Mr. Hunter. That is absolutely correct.
Mr. Miller [continuing]. Appeals is brought to the board.
Mr. Hunter. That is absolutely correct.
Mr. Miller. So the incentive is in filing an appeal.
Mr. Hunter. That is right. I mean, if an employer does not
want to have a union they need to simply keep that process
going until people lose interest, or----
Mr. Miller. You know, we just went through a couple of
years of investigation and study under mine safety, where
clearly a conscious decision was made by the companies to flood
the appeal system on enforcement penalties and fines so that
effectively all the processes of the review board were
So if you do not want to pay a fine, you do not want to
improve the workplace, you do not want to make is safer, you
just keep flooding it with appeals, and your judgment day is
put off years into the future, if ever.
Mr. Hunter. I think that is exactly right, and that is
exactly what will happen.
Mr. Miller. So every issue that you can conceivably raise
at the regional level, you would then take to an appeal. And I
think currently those that are accepted, which is a 1 percent
or 2 percent of the cases, I think, that are accepted by the
board. Those take about a year-and-a-half?
Mr. Hunter. Yes, they can take a year-and-a-half, 2 years.
Mr. Miller. So we have all of this concern of the timelines
that are set in the proposed regs, and yet there is no concern
here with the fact that the election can be postponed for
years. And we all know what that means in an organizing drive
is that people leave professions, people lose heart.
The employer never lets up on the drumbeat, never lets up
on the campaign against the union. We know that an incredible
amount of illegal intimidation goes on in the workplace against
the union. So that drumbeat goes on for a year, 2 years, what
have you, while a group of employees has decided they want to
join the union lives under that assault.
And if it is now with 1 percent of the appeals being
accepted or 2 percent of the appeals being accepted, that time
frame is over 500 days. It is effectively----
Mr. Hunter. It denies employees the right to organize.
Mr. Miller. There is no reason----
Mr. Hunter. It simply denies it.
Mr. Miller. Perfect. Thank you.
Chairman Kline. Thank the gentleman.
Mrs. Biggert, you are recognized for 5 minutes.
Mrs. Biggert. Thank you, Mr. Chairman.
My question would first be for Mr. Russell. And this may be
a question of the number of days. If we are talking 17 days or
we are talking 14 days, is that calendar days or is that
Mr. Russell. Calendar days.
Mrs. Biggert. Calendar days. So if an employer had the 7
days to find an attorney and prepare for the pre-election
hearing, that means that, let us say, they got a petition filed
on Thursday or Friday. Then that means that that would include
the weekend for them do all this.
Let us add Friday. So really cannot get ahold of an
attorney until Monday if somebody is not available because the
offices are closed.
Mr. Russell. That is correct. So you will get petitions
filed Friday at 5 o'clock.
Mrs. Biggert. So that would count the Friday.
Mr. Russell. Correct. Well, it would not count the day of
the filing. You count from there. We would start with Saturday,
Sunday, and so forth.
Mrs. Biggert. So then the next Friday they would have to
have filed, have an attorney, and prepared the case for the
Mr. Russell. Correct. I think what troubles me about that
is, from a small business perspective--and, again, I am going
to go back to the grocery store and the example that I use--the
one that I represented in that campaign--they had never dealt
with these kind of issues before ever.
Nor had any of the employees that were working for the
grocery store. And there were about 100 employees. None of them
had ever had any experiences with unions at all. They did not
know what they mean, did not know what the realities were of
union membership, the good and the bad.
They simply had no knowledge whatsoever. And today, the
private workforce is only organized at about 7 percent. So
there is an awful lot of employees out there who had never been
in a union--Generation X, the Millennials, not even their
Mrs. Biggert. So in your experience, how much time do you
think an employer needs to prepare his staff, to educate his
employees about the effects of the unionization?
Mr. Russell. Well, there is really two parts to that. And
think, first of all, how much time does the company need at
first to hire an attorney and figure out the legal issues. I
think this bill provides for at least 2 weeks. That, again,
really is only 10 business days.
But at least I think that time period is workable, and it
is a reasonable compromise. It is definitely not overreaching.
And I do not believe, as Mr. Hunter says, delays the process
inordinately. But it does give the employer an opportunity to
get the legal team together and to get some advice.
And as Chairman Kline pointed out, these rules are
complicated. There is another resource we go to all the time
called the Developing Labor Law, which really is the Bible for
labor lawyers, union-and management-side. And it is two
So in order to get your arms around it, not all campaigns
are alike. It takes time. Now, the second part you asked about
how long it takes to educate employees. You know, I think,
again, let us point to the current data which Mr. Cohen
indicated. Thirty-eight days is the median time frame, the
average is 31 days.
I think the bill provides for at least 35 days. That is a
reasonable time, and a good compromise, in which employees can
exercise their right to get information before being forced to
Mrs. Biggert. Do you know how many days the NLRB looking to
have these elections take place?
Mr. Russell. Yes, they wanted the elections in as few as 10
days after the petition was filed. That is simply unworkable.
It is unfair to the employees. They will not get the
information they need, employers will not get the advice and
support they need.
Mrs. Biggert. Okay.
Then thank you very much. Mr. Cohen, in testimony, and I
think Mr. Russell also talked about this, you highlight the
fact that employers would likely be unaware of pre-petition
union activities, and yet would be forced to prepare themselves
for the process, an abbreviated time frame.
Can you give me some of the other pre-petition union
activities that would place an unfair burden on the employer?
Mr. Cohen. Well, sure. As Mr. Russell testified, unions, in
their organizing drives, very rarely go to the employer and
say, ``Mr. Employer, I want to organize your employees.'' They
get together a group of individuals who they think they have
like cause with, and they work with them.
Then they decide, in their own judgment, what the
appropriate unit is going to be. And then they will proceed to
do the organizing around that collect course.
Mrs. Biggert. Because I do not have too much time, I just
wanted to ask you one other question.
Mr. Cohen. Sure.
Mrs. Biggert. And that is, what about the right to privacy
under the proposed rules that would be concerned?
Mr. Cohen. Right now, there is an obligation to provide
what is called an ``excelsior list,'' which is the name and
home address of employees. A lot of employees resent that. But
employers say this is what the law requires, and that is it.
Under the proposed rules, there would have to be given over
electronic communication information. It is unclear, under the
rules, whether it is going to be business e-mails, work e-
mails, or personal e-mails, or both. Both of those, I think,
severely intrude on employee privacy rights.
And it is not a warranted reason, in my judgment, to have
that kind of imposition required.
Chairman Kline. The gentlelady's time has expired.
Mr. Andrews. Thank you, Mr. Chairman.
Mr. Cohen, you make the case that speed alone should not be
the predominant value for NLRB decision-making process. Do you
think that one of the other values should be careful reasoning
and accuracy of their decisions?
Mr. Cohen. Obviously one would tend to think that accuracy
is a value and, of course, it is. But if I can----
Mr. Andrews. I only have 5 minutes unless, of course, the
chairman gives me another minute and a half.
Mr. Cohen. But, Mr. Andrews, the law does not require that.
Unions can misrepresent, and employers can, as well.
Mr. Andrews. Mr. Cohen, let me ask the questions. Would you
agree that the regional directors are, by and large, quite
competent in rendering decisions in the present decision-making
Mr. Cohen. I think, by and large, the regional directors do
a good, conscientious job of applying the law that is before
Mr. Andrews. Right, I agree with you. Do you know what
percentage of representation cases the National Labor Relations
Board presently takes? Because it has the discretion to hear
them or not now. What percentage of cases do they take up in
representation cases at the full board?
Mr. Cohen. Very small. Because the review process, which
occurs before the election is held----
Mr. Andrews. Right.
Mr. Cohen [continuing]. Either determines to grant review,
which only happens in a very small number of cases----
Mr. Andrews. The answer----
Mr. Cohen [continuing]. Or to decline review.
Mr. Andrews. The answer is 1.3 percent. Now, is it not
correct, under the bill that is in front of us, they would have
to take 100 percent of the representation cases?
Mr. Cohen. I believe that that is rather a technical issue
with the proposed legislation.
Mr. Andrews. No, it is----
Mr. Cohen. As I understand it----
Mr. Andrews. Well, as I read the legislation, it says that
every representation case must be decided by the full board.
Now, what do you think that would do in terms of delaying
Mr. Cohen. I would expect that the numbers would not change
under the proposed legislation. What would happen----
Mr. Andrews. Really?
Mr. Cohen [continuing]. The regional director would issue--
Mr. Andrews. Please let me ask the questions. If they had
to take 100 percent of the cases and review them, instead of
1.3 percent, you do not think that would result in more delay.
Mr. Cohen. They have 100 percent now.
Mr. Andrews. They take 1.3 percent of the cases now on
their discretionary review. What reason do you think might
exist to require them to take 100 percent of the cases for
Mr. Cohen. Again, please, Mr. Andrews. They have 100
percent now. The issue, 90-some percent are waived at the
initial stage. Then there are only a few where reviews are
granted. And all that takes place before the election, which is
occurring in a quick period of time.
Mr. Andrews. And as I read this bill, it eliminates the
possibility of that waiver. It says they have to take up all
the bills, and I think that would create a major problem.
Mr. Sullivan, you represent the major retailers of the
Mr. Sullivan. I represent the Retail Industry Leaders
Association. So it is the trade association and not the
Mr. Andrews. Has your association taken a provision on the
president's proposal that would stave off a $1,500 a year tax
increase for middle class families if we do not act by December
Mr. Sullivan. I do not know anything about that, sir.
Mr. Andrews. You have not taken a position on that?
Mr. Sullivan. I do not know. I do not know how to answer
Mr. Andrews. You do not know the positions your association
takes on legislative issues?
Mr. Sullivan. I do know their position on what they have
asked me to come and testify about, but I do not know what you
are asking about.
Mr. Andrews. Okay. I would expect they would support the
proposal. I am reading a headline that says ``RILA
Congratulates Senate on Swift Passage of Stimulus Proposal.''
Now, of course, that was the stimulus proposal under the Bush
administration of February 5, 2008, which put more money in the
pockets of consumers.
Do you think putting more money in the pockets of consumers
is good for the retail industry?
Mr. Sullivan. I would have to agree that more money in
consumers' pockets is good. Other policy issues you are asking
me about I am really not prepared to address.
Mr. Andrews. I understand.
Mr. Cohen, when you talked about the blackjack dealers and
the poker dealers, and where the board decided that the
bargaining unit, as I understand it, with just blackjack
dealers is not big enough. Right? Who had the burden of proving
in that case that the blackjack-only dealers was not the
Was it the employer, or was it the people trying to
organize the union?
Mr. Cohen. The hearing officer of the board was charged
with developing a full record. If a position was----
Mr. Andrews. That is not what I asked you. Who had the
burden of proving whether the blackjack-only unit was the right
unit? Who had the burden of proving that?
Mr. Cohen. Mr. Andrews, if you do not want to answer the
question, then I cannot give you the answer.
Mr. Andrews. Well, I would like you to answer the question
I asked. Who had the burden of proof in that instance?
Mr. Cohen. It is not a yes-or-no answer. It is not a one or
the other answer.
Mr. Andrews. Was it the employer, or the union? Who had the
burden of proof?
Mr. Cohen. The NLRB hearing officer.
Mr. Andrews. The judge had the burden of proof?
Mr. Cohen. But there is a qualifier, if you will give me a
chance to explain that I would like to explain.
Mr. Andrews. Up to the chairman. He gave the last
questioner an extra minute and a half. I am sure he will give
that to me, as well. Is he here?
No. Please answer the question.
Mr. Cohen. The answer is, the hearing officer is charged
with developing a record. If an employer takes a position in a
hearing, then the burden is then on the employer to make that
case. That is the Bennett Industries case.
Mr. Andrews. Does the statute change that rule, and put the
burden on the union? The bill that is before the committee?
Mr. Cohen. Are we talking about the quickie election rules,
or are we talking about Specialty Healthcare?
Mr. Andrews. The chairman's bill. Does it shift the burden
to the person trying to organize the union?
Mr. Cohen. I am not certain in a given case.
Mr. Andrews. The answer is yes, it does. Which is, that is
truly a radical change in labor law.
Thank you, I----
Chairman Kline. The gentleman's time has now expired. Thank
the gentleman. Let us see.
Mr. Heck. Thank you, Mr. Chairman.
Mr. Russell, I appreciate your grocery store analogy. But I
worked in a hospital emergency department as a physician, and
look at how many different folks work in a hospital emergency
department. You have doctors, nurses, CNAs, clerks, custodial
And realizing it may be an apples-to-apples comparison
because of the health care exemptions, but theoretically then
each one of those particular job classifications could be a
separate unit. And then if that is the case, what about those
same classifications that work in other departments?
So if you work in the emergency department you would have
one unit, if you work in med surg you could have another, if
have a CNA in the OR you could have another. Is that possible?
Mr. Russell. That is entirely possible. In fact, another
one of my recent campaigns involved a nursing home. So the
example of the CNAs in the Specialty Healthcare case is
something that I paid very close attention to. In that case,
the union relented.
We reached agreement on the election. There were not
endless delays, we did not tie it up forever, and we got to a
vote in a reasonable amount of time. I forget the exact days,
it may have been 41, but we got to a vote. And everybody in the
nursing home had an opportunity to cast a vote and, once they
got full and fair opportunity to information.
Had Specialty Healthcare been in place, we would have an
election only involving CNAs, though those jobs are fully
integrated with everybody else. They all work side-by-side. And
they may even work different floors on the hospital and the
nursing home, but they still have to interact with the dietary
department, they have to interact with the administrative
employees, they have to interact with housekeeping, many
So you are correct.
Mr. Heck. Thank you. And Mr. Sullivan----
Mr. Hunter. Mr. Chairman, if you would indulge me I would
Chairman Kline. No, it is Dr. Heck's time. I am sorry.
Mr. Heck. Mr. Sullivan, usually in unions the idea is that
there is strength in numbers. So unionizing these very small
groups of people, how does that actually benefit the employee?
Mr. Sullivan. How does it benefit the employees?
Mr. Heck. Right.
Mr. Sullivan. I think it does not benefit the employees. I
think in--in the example that I gave in my opening testimony of
the grocery store, it is very common to move from department to
department in--in many retail settings. And that gives the
employees the benefit of variety in their day, the ability to
cover shifts in other departments, earn extra money when
employees are absent which is obviously an important thing
And it lets them learn the business. And if single
departments or multiple departments are organized as separate
bargaining units, the transfer between departments is going to
be hindered. And that is not going to be good for anyone.
Mr. Heck. Thank you.
And Mr. Cohen, lastly--you know, I was brought up with the
adage ``if it is not broke, do not fix it.'' What has happened
with the decades of precedent in labor law recently that is now
required, this fix to be propagated by the NLRB?
Mr. Cohen. My own view of it, Congressman, is that with
declining union density that--and an inability to change
through legislation the NLRA, there has been attempt to go to
the NLRB--where a majority of the members are of the party of
the White House occupant--and change, through rules and
regulations without the mandate of Congress, whatever can be
done to facilitate union organizing.
Mr. Heck. Thank you. Thank you, Mr. Chair. I yield back.
Chairman Kline. I thank the gentleman.
Ms. Hirono, you are recognized.
Ms. Hirono. Thank you, Mr. Chairman.
I have questions for Mr. Hunter. Hawaii unions have told me
that in their organizing efforts they are often prevented from
accessing the workers in the workplace. Is it not true that
employers have unfettered access to their employees at any time
of the work day to press their views about the union? Of
course, not in any legal way.
But they have access. And does anything in this bill change
any of those kinds of situations?
Mr. Hunter. Well, the employer does have unfettered access
and they have unfettered access at work, where they control the
employee's work life. And importantly, they have that access
not from the day a union organizing drive starts, but from the
day that an employee goes to work for that employer.
And some 90 percent of employers make their views known to
workers as far as how they feel about labor unions. The
employer tends to have e-mail addresses for employees. They
generally have telephone numbers, they have they have that
means of communication.
So, you know, there may be--you know, and I have heard some
reference to this of while the employer finds out when a
petition's filed that there is a union drive going on, there
may be somewhere a union drive that the employer did not know
about until the petition was filed, but I have never seen one.
They always know.
Ms. Hirono. Yes, we have heard testimony to that effect. I
also find that hard to believe in a real-life situation. And if
we really cared about fair elections and fair efforts at
organizing, then I think that there should be something in this
bill that allows for the organizers to have access to the
Another question. It is pretty clear to me, in reading this
bill, that the question of the filing of the various appeals
that the board will now have to take up, there will not be
discretionary waivers and it is going to clog things up. And I
am wondering whether--since only about 1 percent to 2 percent
of the appeals are actually dealt with by the board now, are
there any sanctions under the current NLRA against parties who
file frivolous appeals?
Because I would anticipate that there will be many of those
that the board will no longer have the discretion to dispense
with under this bill.
Mr. Hunter. No, there are no sanctions for filing frivolous
appeals. To my knowledge, the only thing in the nature of
sanction that the board's ever had is people engaging in
outrageous behavior like if I jumped on this table or something
during this hearing as opposed to the positions I take, and
what have you.
So there are no sanctions.
Ms. Hirono. So generally speaking, in other parts of--well,
in litigation, there are usually sanctions against people who
file frivolous kinds of appeals. And I should think that we
would want to put that kind of provision--it is still, if we
really want to be fair about things.
There were some questions relating to the burden shifting
to the employer or to the organizers with regard to identifying
the community of interest. And I just wanted to ask you, Mr.
Hunter, in this bill once a community of interest group of
employees is identified--and, of course, it is the employers
who do not want to have the organizing effort going on, or
They would want to expand that group. They have an
incentive to do that. So in this bill, an employer who seeks to
expand the bargaining unit--so that is a--organizers would have
to get more and more signatures in order to proceed with an
Does the burden shift, in this bill, to the organizers when
the employer wants to expand the community of interest group?
Mr. Hunter. Well, I think as a practical matter it does. In
the general nature of things, a union would establish that the
unit that it seeks is a readily--has a readily identifiable
community of interest. And then if an employer disputes that,
they would have to show that that was not the case.
The difficulty with the standard in this bill is, it
essentially provides that, unless the employer does not take
the position, in just about all cases there is only going to be
one appropriate unit. Community of interest is a sliding scale.
Everybody who works for an employer in a particular plant has
one common denominator of community of interest.
Everybody who works for the whole employer has a more
common denominator of community of interest. That has never
been the test. And if this is adopted, so long as an employer
can show that there is a basic community of interest--in other
words, that a plant unit, the act, as it reads now, indicates
that the union can seek an employer unit, a plant unit, or some
If this--that has been taken out of the act in this bill.
So that essentially, as long as there is some community of
interest, if the employer can say it would be a viable
sufficient community of interest to have all the employees in a
particular state organized, then essentially that petition's
going to get dismissed.
Chairman Kline. The gentlelady's time has expired.
Mr. Ross, you are recognized.
Mr. Ross. Thank you, Mr. Chairman. For the last couple of
months, I have had an opportunity to work on a subcommittee
issue that I chair. That has to do with the post office, which
is a public sector union, totally different from what we are
talking about here.
But there is an analogy to be made that I think--that is
interesting with regard to bargaining units. You see, some of
you all have been to the post office, and you see there is a
bunch of people in the back just working away and there is a
few people at the counter, and there is a long line, and nobody
from the back comes to the front.
Because their bargaining agreements prohibit one from
cross-training to the other. And my concern here is--especially
with you, Mr. Sullivan, when you represent the retail industry,
are we not seeing what has happened in the postal industry?
Where by busboys, or busladies, who have now unionized, will
not clear my table, and the waitress or waiter cannot clear it
because they are not cross-training because they are
independent bargaining units?
It seems to me that what we are doing is allowing for an
unfair competitive advantage to those who do not participate.
And I guess I would just like your take on this as to whether
you think that ultimately, if the NLRB rules go through, and
Specialty Healthcare goes through as it is now, the standing
law, are we not looking at a situation where we are not going
to have a competitive advantage in our retail market?
Mr. Sullivan. Well, I think that there is a threat of
substantial harm to the entire functioning of the retail
market. We--before this ever became an issue--and historically
retailers have placed great emphasis on cross-training. And the
nature of customer service is such that when we all walk into a
store to buy something, and we see an employee of that store
and ask a question, we do not want to be told, ``I am sorry. I
do not work in that department.''
We want employees who are familiar with all departments and
able to work in all departments. And we want them all to
support each other.
Mr. Ross. So, Mr. Sullivan, you hit it on--I think in your
opening statement, when you talked about if a bagger at a
grocery store wanted to move on somewhere they really could not
if they were part of this--one of these mini unions. And I am--
and I go back to the founder of Wendy's, Dave Thomas, who has
since passed away.
But his secret to success was, if he had to be there at
8:30 he showed up at 8. If he got off at 5, he worked 'til
5:30. But in light of many unions, in light of impediments that
we are going to prohibit not only the cross-training but the
advancement of employees, what career service, what career
opportunities are there out there under circumstances where
members of these mini unions now must be beholden to their mini
Mr. Sullivan. I do not know.
Mr. Ross. Mr. Russell, as a lawyer, what would you say--are
there instances where you can say--that from a procedural
standpoint it is better to shorten the time than to lengthen
Mr. Russell. Which time period?
Mr. Ross. Any time period. I mean, as a lawyer, for
procedural purposes are there any situations where you feel it
is better to shorten the time as opposed to lengthen the time?
Mr. Russell. No. And what troubles me about the shortening
of the time that the board has proposed here is that you are
taking away the rights of the employees to get the full
information they need. And as I said earlier, the union has
already been talking to them for weeks or months.
What is wrong with the employer having a reasonable
opportunity to get that information to the employees.
Mr. Ross. And, Mr. Hunter, why would you object to that? I
mean, it seems to me that shortening the time really is more--
doing more of a disservice to the union organizers or the
employees for not adequately understanding the situation. I
mean, why do we need to have the shortened period in the first
Mr. Hunter. As I indicated, first of all I do want to
stress here that I am talking in terms of a bill, and here we
are talking in terms of proposed rules that--for which
thousands of comments have been submitted which we do not know
what form, or whether they will be adopted in their precise
form. Or whether----
Mr. Ross. But we have a pretty good indication, based on
the history of this NLRB over the last couple of years.
Mr. Hunter. The employer has had the opportunity from day
one to talk to people and let them know their feelings on
unions. An increase of time to essentially beat on people
Mr. Ross. And you are okay with employers disclosing all
the personal information under the excelsior list? Under--
allowing for them to have all the--and maybe even opening up
that employer to privacy suits, violation of privacy suits.
Mr. Hunter. I do not think that if an employer--if
something becomes the law, and the employer follows the law, I
do not believe they are going to subject themselves to any----
Mr. Ross. That is your experience?
Mr. Cohen. My experience is that employees very frequently
resent having their personal information turned over, and would
resent to a greater extent having to turn over a greater amount
of personal information.
And in response, if I might, to something that Mr. Hunter
said, I know of no employer that communicates with its
employees at home on e-mail dealing with anything like the
kinds of topics we are dealing with here.
Chairman Kline. The gentleman's time has expired.
Ms. Woolsey, you are recognized.
Ms. Woolsey. Thank you, Mr. Chairman. Just on a little bit
different note for just a minute, I want to thank Mr. Russell
for wearing his purple ribbon. This is domestic violence month,
and I have reintroduced legislation that would bring domestic
violence victims and their families under the FMLA-Family and
Medical Leave Act.
And I introduced it today, so thanks for reminding me to
say that. Because it falls under the jurisdiction of this
Mr. Hunter. Thank you.
Ms. Woolsey. Thank you.
Okay, I cannot let go of this conversation about smart
unions certainly do not let employers know that they are
organizing. Well, first of all they cannot. They do not have
access. I mean, they could if they are--but they are not going
to. But even if they wanted to, they have such restrictions on
and lack of accessibility to the workforce.
So okay, we know that. They can find their way around it.
But from day one--I was a human resources director. For 20
years, this is my field. Employers have access to their workers
from the minute that worker is hired. I mean, if the employer
is any good, and smart, smart, smart, you know, is how you
would say it, that employer has new employee meetings.
And certainly they let their new workers know where they
stand on unions, what they believe in as an organization. But
more than that, day in and day out that employer has the
opportunity to prove their workforce that they do not need
That is up to the employer. They can either do it or not.
And if they wait until the last minute, when they have been
taking advantage of their employees or not treating them, you
know, the way they ought to, then surprise, surprise. They are
going to want somebody else to come in and represent them
instead of the leadership of their company.
So Mr. Hunter, you have said what you need to say about
that and, you know, the accessibility. But we have been just
making so much about how the board's proposed new rules will
hurt employers if we do not change it with this bill by getting
in the way of their ability to compete.
Well, I would like to ask you how many jobs do you think
the so-called Workplace Democracy and Fairness Act is going to
Mr. Hunter. The only jobs it would create would be for
people taking care of the warehouse full of paper for all the
appeals that are going to wind up being filed in order to
prevent workers from having the opportunity to organize.
Ms. Woolsey. So what do you think? Walk us through just
exactly do you think the employers would do if they have more
time between filing a petition to organize and election? What
do these employers need to do that they cannot do from day one
when they hire their employees?
Mr. Hunter. Well, I think what they have, if they have
additional time after a petition has been filed, it is just
like for all of you when you are in a--you know, you are in an
election race, and what have you. Things ramp up. And if things
ramp up for an excessive amount of time, where one party has
all the power over the work life of the persons who are going
to vote it tilts the playing field.
Just as it does, each of you, when you conduct political
campaigns. You reach out to people by phone, you reach out to
them at home, you reach out to them through e-mail, and staff.
Ms. Woolsey. So you said something I am getting the gist of
what you are saying. So employers do reach out to their workers
during an organizing campaign.
Mr. Hunter. Oh, they do more than work. They do more than
Ms. Woolsey. I know, I know. But they can use the e-mail,
their e-mail list. They can use the personnel files. And they
Mr. Hunter. Absolutely.
Ms. Woolsey. Well, all right. So this excelsior list that,
oh my, we might level the playing field by having the--allowing
the union to have that same list.
Mr. Hunter. Well, and keep in mind the union does not even
have access to that Excelsior list in--until, with its hands
bound and no access whatsoever, it manages to gather up
signatures of 30 percent of the people, even without that. So
it levels the playing field at that point, when the campaign
begins, that they can at least reach out to people for whom the
employer has been able to reach out from the day they started
Chairman Kline. The gentlelady's time has expired.
Mr. Roe. Thank you, Mr. Chairman.
Last night, fairly late, Dr. DesJarlais and I got back from
Afghanistan. And our last visit there was a forward operating
infantry base not too far from the Pakistan border west of
Kandahar. Those young people there were protecting our rights
to have a free and fair election.
I put on a uniform almost 40 years ago and left this
country and left a family so that you would have a right to
vote. As I have said in this committee hearing many times, I
was elected by a secret election, the president was, the
president of the unions are. And employees ought to have that
same right to a free and fair election.
And I think the NLRB, it looks to me like, is--should be an
impartial referee so that no employer has an advantage nor an
employee has an advantage during an election. And I think that
is one of the things. In 31 years as an employer I never one
time mentioned a union to my employees. Never came up.
We--we talked about how to make our work better and more
efficient. And Mr. Sullivan or Mr. Russell, either one of you
can answer this. I am a physician, and we had--assisting the
doctors, we had CNAs, registered nurses, LPNs. I have got
venepuncturists, receptionists, imaging people, billing people,
We have got M.D.s, D.O.s, nurse practitioners. So could any
one of these--for instance, nursing assistants, LPNs or RNs--be
a micro unit so that they could not go back and forth? We help
each other and work together to do what? To provide better care
for our patients, just as in a grocery store you need to
provide services to the customer--me, when I come in to buy
So would either one of you answer that, if you could.
Mr. Hunter. Well, for the moment I will stay away from
employees that may be professional employees. And maybe Mr.
Russell could follow up a little bit on that. But for the most
basic parts of your question--I am sorry. My mistake.
I will stay away from professional employees for the
moment, and maybe Mr. Russell could follow up on that. For the
most basic parts of your question, the answer I think is
clearly yes. That CNAs and related employees are vulnerable to
being organized in very small blocks. And I do not know whether
there are different shifts in the practice, but certainly by
job classification or department absolutely.
And not just in different bargaining units, but also
potentially by different unions.
Mr. Russell. I agree also with the first statement you
made. That you never once talked to your employees about
unions. Well, my grocery store client had no idea what to say.
But here is what was going on behind the scenes. The union was
doing something that, under the law, it is allowed to do.
And that is to make promises. It can make any promises it
wants to under the moon. It can say we are going to get you a
dollar an hour increase, we are going to increase your
benefits, we are going to give you job security. Now, none of
those are promises that they can necessarily fulfill, but
employees do not know that.
Whenever the petition gets filed, the employer cannot make
promises. There is a fundamental restriction on what employers
can say. And that is what I train my clients on whenever this
comes up, when they know about it. One of the things an
employer cannot do is to make promises. It is against the law.
If they say, ``Well, I promise you if you do not vote this
union in, then I will give you a pay increase'' they just broke
the law. The union could say the converse of that, and it is
okay. So there is a fundamental difference in the
communications here. That is why it needs to be fair for the
employer to have an opportunity to get that information to
Mr. Roe. Mr. Cohen, I want to ask you a question you
brought up just a minute ago. Right now, when employees have an
opportunity to vote, it is occurring, on a median, within 4 to
5 weeks. Unions win two-thirds of elections when they talk to
So this ought to be renamed, ``If It Ain't Broke, Don't Fix
It Law.'' Because I do not know what problem you are trying to
fix. To hurry something else, where people can get the
information. Am I wrong on that?
Mr. Cohen. No. Dr. Roe, I could not agree with you more.
This is something which has become a well-oiled machine over
decades. The general counsel who administers the regional
offices has preached for years, and the regional offices have
complied with, cutting back, cutting back, cutting back.
We have reached a point where all we are left with is
reasonable time frames. And it works, and it is the dual
functions that the board has confronted us with in the last 4
months that have created the havoc and the threat of litigation
and appeals coming forth. It is unnecessary.
Mr. Roe. Why do you think the board did that?
Mr. Cohen. I think the board did it because they are trying
to affect a union density issue. They see that unionization
numbers are low, and they see the failed attempts that they
have had before Congress in terms of changing the law. So they
are changing the procedures instead.
Chairman Kline. The gentleman's time has expired.
Mr. Payne. Thank you very much. Let me just say that one of
the last witness has said that companies cannot make promises.
I guess you are right. However, every time there is a move on
the part of organized labor to organize, companies may not be
making promises, as you say. And I am not so sure that they do
not whisper out some things.
One thing, though, that do make clear is that you cannot
make promises. However, let me make it clear, as they would
say, that if we are unionized we are probably going to have to
reduce our workforce. It is going to create problems, we think,
in the future because there will be demands made for pension
considerations, wages, et cetera.
And so conversely, even though they may not have the
opportunity to make promises. They certainly have the threat,
and that is why so many union-organized efforts fail. There is
no question that at one point they were 38 percent, 29 percent,
30 percent of workers in this country we are organized. It is
now down to 18 percent, 16 percent, 14 percent, and going down.
Now there is no way in the world that you would have that
reverse if it were not for the power of the companies to have
unions that are already in--expired, but to win many of the
cases where organization of labor strength.
I mean, one large employer in my district, the company had
anti-union material that was put into the bulletin boards which
was locked and changed daily, where there were terrible things
that were put out.
Of course the argument was that it was the local workers
who were opposed to the union that did it and it was not
reflective of the company, to the point where I had the
president of the company. So this is totally unfair.
Matter of fact, a lot of derogatory stuff, caricatures I
guess you can make through the computer. You can have
caricatures that are very demeaning. And so we have seen the
power of the company. And like I said, my point is that they
may not be able to promise, but that big stick they have about
what is the future once you organize is very, very powerful.
Mr. Russell. Representative Payne, if I may respond to
that, there are actually four things that employers cannot do.
And it is summarized in the acronym TIPS. We keep it very
simple for supervisors and managers, and it is very simple. And
the T means threaten. You cannot Threaten, you cannot
Interrogate, you cannot make Promises, and you cannot Spy or
engage in surveillance.
Mr. Payne. Let me tell you what they do. They threaten,
they do all four of those things in their own way. Because it
is a fierce fight, and I have been involved in seeing these
fights go on. They do intimidate, matter of fact. They are not
going to win unless they do it, and they do it.
Mr. Russell. And it results in an unfair labor practice
charge, which is something that could make a rerun election or
overturn an election. So there is an incentive not to do it. I
have had campaigns where we had no ULPs.
Mr. Payne. Well, they find it to their advantage to do it
because they have the wherewithal in most instances to have the
Let me just ask the questions. And I, too, commend you for
your ribbon, and I support that, as did Woolsey.
Mr. Russell. Thank you.
Mr. Payne. Mr. Hunter, in your testimony you discussed how
H.R. 3094 will result in the disruption of 75 years of board
experience in configuring appropriate bargaining units. Can you
explain how this legislation allows employers to gerrymander
bargaining units for the purpose of defeating a union election?
Mr. Hunter. Yes. At present, the act provides that the
board can determine whether the appropriate unit is an employer
unit, a craft unit, a plant unit, or a subdivision thereof. The
way that has been taken out of the act in this bill, this bill
then would have a set number of criteria, or tools, that are
used to determine a community of interest and none other.
And therefore, there is no ability for craft severance,
which there has always been under the act. This would
eviscerate the eight hospital units that have been created by
rulemaking. And I did want to point that out in regard to the
response that this would create micro units in private
That is absolutely incorrect. The only way that that can be
disrupted in this bill, that the hospitals could be disrupted,
would be if this bill passes and those rules that people have
relied on for the last 20 years, in that case, would be out the
And we would be back to the races on that, so it would
totally disrupt the way bargaining units have always been
Mr. Payne. Thank you.
Mr. Roe [presiding]. Time has expired.
Mr. Bucshon. Thank you, Mr. Chairman.
First of all, I would like to tell you, you know, my dad
was a United Mine Worker for 37 years so I fully recognize the
rights of workers under the labor laws of the United States,
and have a great deal of respect for all workers in this
What we are really talking about here is an overreaching
and ideologically slanted NLRB. But let's look at the bigger
picture. The Obama administration is again trying to put in
place their ideological agenda they could not get through a
Democratic-controlled Congress when they had control of
They could have changed the laws when they had the chance,
and they did not do it. So I guess at that time they must have
been fair. My friends on the other side of the aisle now are
here defending the NLRB's actions, when they themselves would
not pass laws to change what was in place.
So the American people should take note again of the
administration using unelected officials to change the laws of
the land, bypassing your elected representatives in the
Congress of the United States.
Mr. Hunter, you use ``fairness'' a lot in a lot of your
comments. And I am going to ask you a couple of yes or no
questions. Do you think it is fair that after months of secret
organizing behind the backs of employers, going to people's
homes and getting everybody today on the side of a union
activist, that the employer--again, after months of activity on
the union activist side--has only 7 days to present their case
before the NLRB?
Do you think that is fair? Yes, or no.
Mr. Hunter. Well, Congressman, I cannot answer that yes or
no because I do not accept the premise that an employer would
be unaware that----
Mr. Bucshon. Okay. The other question I have, then. Do you
accept the fact that, say, maybe an employee, not the
employer--after months of union organizing which may not have
involved them individually because they may not go the right
way according to the union organizer--after months of
organizing by the union activist, that the employee may only
have 10 days to get all the facts before they have to vote?
Mr. Hunter. Again, I cannot answer that for a couple of
reasons. One, I do not accept the premise that they may only
have 10 days. Even the board's rules do not provide anything
about when a direction of election issue. So I have no idea
Mr. Bucshon. But according to the proposals of the NLRB
that may be the result, right? You may only have 10 days before
you have to vote. Is that yes, or no?
Mr. Hunter. I cannot answer that because I do not know.
Mr. Bucshon. Okay, Mr. Cohen, maybe you can comment on it.
Or actually, Mr. Sullivan, I would like you to comment on
this. Do you think it is possible for an employer to get
paperwork done in 7 days, and present their case in front of
the NLRB? I mean practically possible.
Mr. Sullivan. I do not think it is possible to do that
adequately under the proposed rules. I think employers would
have varying degrees and types of difficulty, depending mostly
on their size and resources and sophistication. I think a small
employer is going to have no idea what has hit him and is not
going to stand a chance of complying with the rules, let alone
identifying all legal and factual issues, all employees
involved, and putting it all down on paper within 7 days, or
forever being precluded from raising issues.
As employers get bigger, their sophistication and resources
probably increases. But the complexity of their organizations
then makes the fact-finding much more difficult. And for RELA,
they have got many very, very large organizations spread all
over the United States, huge departments with subsidiaries. And
just identifying who the appropriate employing unit is, who the
supervisors are that know what the employees in question do
day-to-day only for the proposed unit, let alone figuring out
all of the other employees that really needed to be included in
that proposed unit.
I think it is virtually impossible.
Mr. Bucshon. Thank you. I am running out a little. Mr.
Russell, I heard Mr. Cohen's response to the question why now.
Why now? Why, after many, many years of labor laws
protecting employees and employers----
Mr. Russell. Well, I agree with former member Cohen.
Mr. Bucshon. Why would we change it now?
Mr. Russell. I apologize. I agree with former member Cohen.
It really is a matter of union density. It is a question of
unions wanting to get some change in the law they think will
help them. But one thing I want to make clear. There is a
difference in the law from August 25th of this year to August
On August 25th, the law of the land for bargaining units
was exactly what are the eight points in this bill. This bill
is not changing the law of 75 years. It is going back to what
it was on August 25. What happened on August 26 was that
overreaching board favoring unions with Specialty Healthcare.
Chairman Kline [presiding]. The gentleman's time has
Mrs. McCarthy, you are recognized.
Mrs. McCarthy. Thank you, Mr. Chairman. And thank you for
having this hearing.
It has been interesting listening to this debate but, Mr.
Hunter, I want to go back to some of the things that I
personally find under the ruling of the Specialty Healthcare.
They were saying that, you know, the nursing home owner--I
believe Mr. Russell brought that case up--wanted to bring all
the different units under one unit for the vote.
If you are a nurse, if you are a nurses aide, if you are a
specialty technician, they all have separate duties. They also
work usually three shifts. All the others might be part of
administration, might be part of housecleaning, might be part
of food service. Their duties are totally different and their
responsibilities are totally different.
They are also trained totally different. So when you talk
about--and Mr. Russell argued in his testimony--the Specialty
Healthcare decision, the board abandoned longstanding
precedent. However--and think about this--that the Specialty
decision simply upheld the long-standing and additional
community of interest.
Meaning, you had those that were directly doing patient
care, and then on the other side you had those that were part
of the team of the hospital and nursing home, but certainly had
no technical support as far as taking care of a patient. So is
it not true that we have always had the community of interest
test for determining an appropriate bargaining unit?
Mr. Hunter. Well, the board always has had the community of
interest test to determine appropriate unit. What happened in
Specialty Healthcare is, subsequent to the National Labor
Relations Board adopting rules that define bargaining units in
acute care hospitals, there was some question as to how does
one determine bargaining units in the nursing home sector, a
And there was this rather untenable test that applied
essentially only to nursing homes called the community of
interest test. Or excuse me, called the ``empirical'' community
of interest test, which essentially said, look apply community
of interest, but keep in mind what we talked about and some of
the comments we made when we did the health care rules.
And nobody really knew what that meant. And that
``empirical'' community of interest test for nursing homes is
essentially what was abandoned and overturned in Specialty
Healthcare. It really has no effect whatsoever on any other
industry because every other industry has always had a
traditional community of interest test.
And all this fear about micro units and what have you I
think is just that--it is not going to play that way. There may
be different unit configurations made, as there always are. But
it is to say, for example, that Specialty Healthcare would have
made Wheeling Island Gaming--which was the case about the poker
dealers and blackjack dealers treated differently--the only way
that would have been the case is if Specialty Healthcare said
the CNAs on 2 North and 3 South can organize without including
the CNAs on the other wards, and what have you.
And one other thing I just do want to say in this whole
process is, when people talk about the agenda of the board and
what have you, you know, the board does go different ways when
different administrations come in and what have you. And I have
greatly disagreed with some of the positions that some
boardmembers in other administrations have come up with.
But I have already recognized that what they bring to the
table is their life experience and what they bring to it. And
the one thing that I never did is challenge the integrity of
what they were doing when they made those determinations.
And I do not think that we are going to do a very good job
of having people being willing to commit to public service if
we determine that if what they bring from their life experience
to an administrative adjudication somehow should subject them
to attack as if there were some sort of a moral issue involved
in what they are doing, or that they are simply carrying water.
Chairman Kline. The gentlelady's time has expired.
Mr. Rokita, you are recognized.
Mr. Rokita. Thank you, Mr. Chairman. For the record, I just
want to say that as a new member I am a little bit disturbed at
the tone that this hearing has been taking, specifically with
respect to a set of questions that was asked of Mr. Cohen.
You know, my understanding is, this is not a trial. It is
not a trial court. We are having this hearing so that we can be
enlightened and learn something so that we hopefully have a
better piece of legislation, or no legislation, that will help
the people of this country. I mean, we should not be asking
questions that we already know the answer to, Mr. Chairman.
We should ask questions about subjects and topics to which
we do not know the answer. To that extent, I would like to ask
Mr. Cohen if he can elaborate on your earlier statement that
100 percent of pre-election issues are reviewable by the board.
Mr. Cohen. Yes. Congressman, under the system right now
there is an opportunity to go to a hearing or to waive that
right. In 92 percent of the cases, employers waive that right.
If they do not waive that right, they have the right to go to a
hearing. There can at least be a request for review filed of
the regional director's decisions.
Mr. Rokita. Okay.
Mr. Cohen. That whole appeal period occurs very quickly and
before the election is held. So any employer that wants to
bring the matter to the board now has an opportunity to do
that. Instead, what the quickie election rules would do would
be to change that system dramatically and not have that kind of
Mr. Rokita. How often does the time between the petition
and the election exceed the 2 months? I just want to make sure
that is clear on the record.
Mr. Cohen. Sure. And there is some detailed statistics in
my my testimony that I have furnished. But basically, pre-
election waivers of hearing occur in 92.1 percent of the cases.
In those where a hearing was held, the 7.9 percent--that was 37
days from the filing of the petition until the regional
director's decision--then we would have that review process,
which is 25 days to 30 days thereafter.
So in the small number of cases we get up around the 60-day
period of time. And in terms of the board actually passing on
this--and I served on the board, as you probably know--alerts
come. And as the election is coming, in virtually all cases the
board takes a position on the request for review.
Mr. Rokita. So 35 days is reasonable, or unreasonable?
Mr. Cohen. I think it is imminently reasonable.
Mr. Rokita. Okay. I heard some, during some questioning
earlier, there is, quote--``unfettered access'' from employers'
access to employees. But, quote--``Of course, that has to be
done in a legal way.'' And then I heard, quote--``access from
day one'' in the questions.
I want to know if Mr. Sullivan and Mr. Russell want to
elaborate on that. Do you think those are accurate statements
or accurate comments, Mr. Sullivan?
Mr. Sullivan. Congressman, not in my experience. When
employees come to work day one, of course they receive an
orientation. And that consists of forms and getting them
prepared to start doing their jobs. I have never, in almost 20
years, encountered an employer that brought up its own views on
unionization right at the get-go. I have just never seen that.
Mr. Rokita. Okay, thank you.
Mr. Russell. I agree. And also just one comment, if you do
not mind. The questioning about the board's motivations is not
a personal attack. When you look at Member Becker and Former
Chair Leibman, they have stated that they believe the purpose
of the National Labor Relations Act is to encourage
unionization. What is troubling to me as a labor lawyer, as a
labor professional, is if you read section 7 of the act it says
that employees, citizens, have a right to either engage in
those activities or not to engage in those activities.
So I think it is very troubling, when we have someone
sitting on that unelected board, the picks a side.
Ms. Woolsey. Would the gentleman yield?
Mr. Rokita. No.
Mr. Rokita. Were you done? I have been enlightened enough.
Mr. Russell. I was done.
Mr. Rokita. Thank you. I yield back.
Chairman Kline. The gentleman yields back.
Mr. Hinojosa. Chairman Kline and Ranking Member Miller, as
a former businessman for 34 years, it seems to me that American
workers need strong labor laws that protect their collective
bargaining rights and encourage unscrupulous employers to
create family-sustaining jobs in our economy.
I am afraid that H.R. 3094 moves us in the wrong direction.
I would like to ask my first question to Mr. Hunter. In your
testimony, you discussed how H.R. 3094 will lead to elections
being delayed for years, based on frivolous appeals for review.
Can you explain how the prohibition on directing an election
until a review is completed of post-hearing appeals creates
Mr. Hunter. Yes. Essentially what this bill would do--as
Mr. Cohen indicated the board would do--in a current situation,
generally within a relatively short amount of time, it will
decide whether it is going to take a review. And it does not
take a review in 98 percent of the cases.
What this will do is require review of every case. And even
if the case involves a question as to whether one head cook in
a thousand-member hospital is a straw boss or a supervisor, if
that is what is up on appeal then the entire thousand-member
unit is going to have to wait 2 years until that cut gets made.
That is essentially what is going to happen. And as a
practical matter, it is just going to deprive people of a
meaningful right to organize.
Mr. Hinojosa. Mr. Hunter, are workers to have full and fair
elections undermined by this legislation? Explain your position
Mr. Hunter. Well, they absolutely are. Again, I think in
the first instance there is the delay. But in the next
instance, there is the fact that, as the Supreme Court has
indicated, in the first instance it is up to the workers to
take the initiative to decide what unit they want to organize
themselves into. And under this bill, it will not be up to the
Because if the employer can show that you have some
community of interest--and again, it is a sliding scale of
common denominators--with the wider unit, then that is the unit
that is going to prevail.
And in many cases, quite frankly, if the union is
organizing a particular traditional group, a traditional craft
or a traditional technical unit, and the employer expands it,
the petition will simply get dismissed because the union will
not have submitted a showing of interest from that wider unit.
And the proceeding will just be dead, at that point.
Mr. Hinojosa. I would like to ask the next question of Mr.
Sullivan. Is it not true that regardless of the election time
frame, employers always have unrestricted access to employees
during the work day and have the ability to conduct captive
Mr. Sullivan. Congressman, I do not think that is a fair
characterization. Employers are concerned with employees doing
their jobs. They do not go after them in the workplace. And
while they may have access to them, the amount of time that
they devote to trying to educate employees about promises being
made by unions and about what joining the union really means is
very minimal overall in relation to the amount of time they
Mr. Hinojosa. I disagree with you, Mr. Sullivan. Your
testimony suggests that the Specialty decision will result in
more unions and make employers less attractive for takeovers.
Yet takeovers generally result in layoffs, as employers combine
operations or as they cut costs to pay for that takeover.
Do the workers not have greater job security if their
company is not taken over?
Mr. Sullivan. It depends on the circumstances that the
company is in at the time a takeover is being considered. These
days there are a lot of companies out there that are not making
it, but might get saved if they are acquired by a company that
is performing strongly.
And if the potentially acquiring, and saving, company looks
at a situation where there are multiple, very small bargaining
units, it is going to make that acquisition much less
attractive. And the potential acquirer may well walk away,
resulting in loss of the business and the jobs.
Mr. Hinojosa. Your answer----
Chairman Kline. The gentleman's time has expired.
Mrs. Roby. Thank you, Mr. Chairman.
I want to give you, Mr. Cohen, an opportunity to go back
and address some of the testimony that we just heard from Mr.
Hunter. He made the statement that Wheeling Island Gaming, if
that had been the law, that a can on one floor in one unit
could not collectively bargain with a CNA in another unit.
Can you expand on that? I wanted to give you an opportunity
Mr. Cohen. Thank you very much, Congresswoman. I could not
disagree more with the characterization of that. As I said, in
Wheeling Island Gaming the minority view was that as long as
the union asks for all of a particular classification of
employee at a particular facility that there is no reason why
that should not be appropriate.
What the board did is, they took a health care case as a
vehicle, an excuse, to take that position that was in the
minority position, dress it up around the community of interest
standard, and apply it to virtually all of the NLRB's
jurisdiction and the normal NLRB's jurisprudence.
If I could? In fact, we hear a parade of potential
horribles that would occur in terms of litigious employers, et
cetera if this legislation were to pass. Quite simply, from
where I sit, if the board were to take two simple actions--if
they were to overrule Specialty Healthcare and if they were to
withdraw the proposed notice on quickie elections--there would
be no need for the legislation to be changed.
We would have the law as it functions, we would continue to
have a miniscule amount of cases where the board grants review,
and we now have all-time lows in employer challenges to union
certifications in the courts. It did not always used to be like
that. I worked in that part of the NLRB, as well.
It used to be a substantial function of the NLRB
enforcement lawyers. It is not any longer.
Mrs. Roby. Well, and that goes to my next question, and
thank you for your classification on that.
My next question for you, Mr. Sullivan, as it relates to
the Specialty Healthcare decision. I had the opportunity just a
few short weeks ago to talk to, on the record, one Mrs. Ivey,
who came in and testified before this committee. And her
company voluntarily chose to allow the union. And as a result,
she was unafforded the opportunity to vote which, as you know,
represents everything that this great country stands for.
So I just want to ask you a very specific question. How
does the Specialty Healthcare decision affect whether or not an
employer will just raise their hand and voluntarily decide to
Mr. Sullivan. Congresswoman, that is a great question. And
I think, yet again, it depends on the circumstances of the
employer. I think for very small employers, if they look at the
situation that they are in and if they talk to legal counsel
and say what is this going to cost me and what are my chances,
they are going to throw their hands up and say, ``Okay, I will
recognize the union.''
And, in light of other recent NLRB precedent, an employee
in the situation you are describing will find herself with no
avenue to file her own petition seeking to have a secret ballot
election. Because that decision will have been made----
Mrs. Roby. For her.
Mr. Sullivan [continuing]. By an employer. Essentially
forced into it due to these recent changes. Larger employers
will have a decision to make, and that decision is going to be
do I challenge this or do I see my business chipped away and
harmed. And so employers will make a strategic decision based
on their own situation and their resources.
And they may very well go through the process, and then
refuse to bargain and accept defense of an unfair labor
practice charge in the hopes of getting, some day, court
Mrs. Roby. Right. Thank you for that.
And just real quickly, Mr. Cohen, let us talk about that
meaningful purpose from the Gaming decision. Expand on that,
just a little bit, about how important that is for the employee
to have that 35 days in order to educate him or herself as to
whether or not joining a union is in their best interest as an
Mr. Cohen. Sure. It is a complicated world in which all
employers are operating now. We are in a global economy,
whether we like it or not. It is fine if employees choose
representation. That is their right guaranteed under the law.
But they have to do it, in all fairness to them, in a context
of knowledge and to learn the state of the business.
If I can for a moment, we have heard so much about access
to employees. I would submit that of course employers have
unfettered access to their employees during work time. They are
the employer. There is nothing out of the norm in having that.
And most employers get employees together regularly to learn
about the state of the business, to deal with safety issues, to
hear about the economy and means of production which can be
improved through cross-training and making the operation more
Chairman Kline. I am sorry, the gentlelady's time has
Mr. Kildee. Thank you, Mr. Chairman. I apologize first for
being late. I had another hearing in another building.
Mr. Hunter, in 1937 General Motors and the UAW reached a
one-page agreement that recognized the UAW as the exclusive
bargaining representative for GM employees who were members of
the union. I have always had a copy of that hanging on my wall.
One page, signed by John. L. Lewis and Mr. Knutson, the CEO of
That was very simple in those days. They agreed on a
contract, and it went in effect for the members of the union.
There was only one other union in General Motors at that time,
the pattern makers. But it was just the UAW who were recognized
How will the Workplace Democracy and Fairness Act primarily
make more difficult the ability to workers to establish a
contract with their employer? What is the deterrents that cause
the greatest difficulty?
Mr. Hunter. Well, Congressman, I think the primary
deterrents will be the inability of the union to obtain legal
recognition for such a long period of time. That by the time it
is able to get an election, that organizing drive would have
been torn apart by an employer.
Secondly, if the employees lose all say over what
bargaining unit can be established that can be taken away, they
will never reach a contract because they will never have a
bargaining unit that they can meaningfully bargain in.
So I think that is the difficulty. That if workers have a
prompt and efficient ability to organize into appropriate units
that they petition for--and the legal process is not jammed up
with delays and stuff--they then will have the legal right, and
the employer will have the legal obligation to bargain with
But unless that happens, getting a contract just is not
Mr. Kildee. Can you give us some examples of how long this
process could take, has taken, or could take under this bill?
Mr. Hunter. Well, first of all, in the initial thing you
will have a hearing in which you are literally allowed to
litigate anything you want. So, for example, it has been the
law forever that you cannot litigate unfair labor practice
charges in a representation hearing because it is supposed to
be a nonadversarial hearing.
This law would mandate that it be a nonadversarial hearing,
and then also mandate that you can raise any issue you want
to--whether it is, you know, people ought to vote against the
union because, the plant manager has always been good to them,
or they should vote this way because this is unfair or because
these unfair labor practices are going on, or it might affect
the outcome of the election how their wages compare to other
So that can all be throw into that hearing. So that hearing
literally would go on forever. And then on top of that, they
have an absolute appeal. So that you not only have an appeal in
100 percent of the cases, but you have a record going up on
appeal that is jammed up with all kinds of issues that have
absolutely nothing whatsoever to do with whether or not there
is an appropriate unit.
And I disagree with Mr. Cohen with the characterization
that you get review 100 percent of the time. You have a right
to an initial hearing 100 percent of the time, but you do not
have a right to review. And review is granted in less than 2
percent of the cases.
If this becomes law, you are going to have hearings that go
on forever. You are going to have records that make the court
reporters happy. And then you are going to have the process at
the NLRB in Washington totally jammed up with those records.
Chairman Kline. Then gentleman's time has expired.
Mr. Walberg. Thank you, Mr. Chairman. And I appreciate the
panel being here.
Mr. Sullivan, Michigan is the proud home to Myer retail
store. It has 190 stores, 60,000 people in five states, several
stores, and many of the people in my district. This Specialty
Healthcare would have serious implications for our fundamental
business model I just have to imagine.
At a time when Michigan's unemployment rate is at 11.2
percent, and the heart of my district hovers around 15 percent
unemployment. I guess I want to go to the issue of jobs and,
specifically, what kinds of costs would be associated with
dealing with micro bargaining units as permitted by Specialty
And then secondly, what will be the impact on job creation
in the stores and retailers that you represent?
Mr. Sullivan. Congressman, the cost of dealing with micro
unions with, with multiple organizing campaigns targeted at
small groups of employees, is hard to imagine. Obviously, it
would depend on exactly the approach the employer takes.
But first of all, it would be an enormous distraction at
many levels of management. And to tie into the job creation
idea, it is pretty hard to think about expanding a business,
potentially buying more stores, if you are getting picked apart
by having single departments organize over and over. I think
the potential is just enormous, and it is not good.
Mr. Walberg. The impact, as I think of specific jobs, if
you have micro units with restrictions on cross-training, what
is it this says to the individual who begins at a certain level
in a store, wants to expand, wants the opportunity to grow into
a job situation and, ultimately, further themselves?
I mean, we are talking about jobs and the ability to go to
a place and say, ``I would like to ultimately be in
management.'' By going through all the processes, what does
Mr. Sullivan. Well, it hinders the process. And I think the
impact is felt at many levels. If you have got an ambitious
person who would like to work in all of the departments in the
store and progress into management, the ability to go between
departments could become nonexistent.
And then when you think about the day-to-day impact on
employees, regardless of their ambitions, to have to work in
the floral department and only the floral department all day
long and not be able to help stock cans on shelves when needed,
I think would be demoralizing. I think you would have boredom
So I think the ambitious employees would be held back, and
everybody else's quality of job experience would suffer. And I
think that would come through to the customers. And that is an
enormous concern. Because I have seen grocery store chains fold
after a year of customer dissatisfaction, and people start
shopping somewhere else.
Mr. Walberg. Going further along that line, it seems to me
the only way this adds jobs to the economy is by forcing
retailers to hire more lawyers. And no offense to the lawyers
in the room, at least not intended. The human resource staff to
deal with all of the management nightmare. And the case of
retailers, this is at a time when you really need the economy
to pick up and be strong.
Is there any sense of how destructive this will be across
your business from distribution center to the store itself?
Mr. Sullivan. Well, distribution centers are equally
vulnerable to having small units organized. There are many
different functions under a warehouse roof, from shipping and
receiving clerks to inventory control. There are selectors who
pick the boxes off the shelves. There are forklift operators.
There are people who load and unload trucks.
And under Specialty Healthcare, every one of those jobs
that I just stated is potentially a separately organized
Mr. Walberg. Okay.
Mr. Cohen, turning to an attorney, I noticed that you were
responding by writing some fast notes at the end of the last
questioning. I would like to give you an opportunity to share
those with us.
Mr. Cohen. Sure. Thank you very much. It has to do
primarily with this notion of what goes on at a hearing. We
have 60 years' worth of jurisprudence as to what is permissible
to raise at a hearing or not. I believe it is a total red
herring to say that we are going to have representation
hearings deal with employees thoughts about whether a union is
a good idea or not.
Hearings are limited. The people in the regional offices of
the NLRB know what they are doing. They hold these hearings.
They do not permit irrelevant items to be raised in it. And the
precise issues at a hearing have to do with unit scope and unit
Chairman Kline. Then gentleman's time has expired.
Mr. Tierney. Thank you, Mr. Chairman. You know, I am sort
of amused sometimes by my colleagues on the other side who
think they first have to immunize themselves by saying how
closely affiliated their families re with unions, and then they
jump in to attack.
But if it matters at all, I am a former president of the
Chamber of Commerce. So this will be a man-bites-dog story on
the other side on that. [Laughter.]
And the other is, one of my colleagues, who unfortunately
left here, was chastising us all because we are not asking
questions just to get the facts, we seem to be predisposed. It
would be wonderful to ask questions to which we could get the
answers if we had a panel here that was not predisposed and not
biased. And I do not think that that is the case.
So I think maybe it is important in asking the questions to
understand where our witnesses are coming from so we can put
them into some sort of perspective on our own. So Mr. Sullivan,
let me start with you. I understand that you are a professional
advocate on behalf of business interests.
Easily recognized and, according to your own testimony, you
do a wonderful job advocating for your clients. But we are
being asked here to consider legislation that makes it harder
for working people who want to form a union to have an
election. So I want to probe a little bit more into the
rhetoric that you use in your testimony.
I want to see whether or not that is supported by the
facts. In your written testimony, you have got a whole section
dedicated to micro unions. I think that anybody who reads
Specialty Healthcare would think it was about CNAs, CNAs who
want to form a union. Maybe those who read it that way missed
Will you point out to me the page in the Specialty majority
opinion where you see the term ``micro union?''
Mr. Sullivan. Congressman, that term is not in the opinion.
Mr. Tierney. No, I did not see it there either, and that
Mr. Sullivan. It is the effect that would----
Mr. Tierney. Well, maybe you can help me then with
understanding your rhetoric on that. How big, in your mind, is
a micro unit, specifically?
Mr. Sullivan. Well, CNAs alone--and not including other
employees, nonprofessional employees, working in a nursing
home--in my opinion, is a micro union.
Mr. Tierney. All right. So Specialty Healthcare, that issue
has 53 CNAs. So 53 is a micro union, in your mind.
Mr. Sullivan. It is a micro union because it consists of a
single job classification.
Mr. Tierney. Well, it is what you determine as a micro
Mr. Sullivan. The term does not depend necessarily on the
number of employees in the unit. It depends on the isolation of
the unit from other employees that have a similar community of
Mr. Tierney. So it is your contention that janitors and
other people had a similar community of interest with the CNAs?
Mr. Sullivan. That was the position I think the employer
took in Specialty Healthcare.
Mr. Tierney. I know. And it is your position to advocate
for the employer. But over the last decade, the median size of
units in bargaining range from 23 to 26. So let me ask you
whether or not 23 employees is a micro union.
Mr. Sullivan. I cannot answer the question in those terms,
Congressman. I can tell you that I have been involved in
negotiating contracts, first contracts, after campaigns for
nursing home employees in my career. And I can also tell you
think when unions have petitioned to recognize employees,
including CNAs in nursing homes that I dealt with, every single
one of those elections proceeded under an agreement.
We did not go to hearing on one of them. And that was
because that I knew the rules and worked with the union, and we
were able to hammer out an agreement.
Mr. Tierney. I do not want to interrupt you, but I do not
know where you are going with that. But it does not deal with
the issue. This rhetoric that you have had of micro unions, it
just sounds to me like a lot of rhetoric and it is not even
mentioned in the decision.
But let us move on. Your testimony also claims that the
board's proposed rule would remove board agents from the
process, and result in fewer elections by agreement. When you
read that proposed rule, I think you would be hard pressed to
see how the board's been removed from the process.
But you also claim in your testimony that the board wants
to remove its board agents from the role of developing a record
on the representation issue. Now, just to be clear, if you read
the rule what it says is that it is the duty of the hearing
officers to create an evidentiary record concerning only
genuine disputes as to material facts. That is on page 36822 of
the Federal Register.
So let's get it straight. Are you taking the position that
board agents should have to create a record where there are not
genuine disputes as to material fact?
Mr. Sullivan. Excuse me, Congressman. What I mean by
removing the board agents from the process is that today----
Mr. Tierney. No, but my question to you is whether or not
you take the position that board agents should have to create a
record where there are not genuine disputes as to material
Mr. Sullivan. That is not what I am saying.
Mr. Tierney. That is not your position. Is it your position
that employers should be able to bog down the hearing with
Mr. Sullivan. Not at all.
Mr. Tierney. Thank you.
Mr. Russell, let me just look to your for a second here. In
February of 2009 you presented a conversation, or a talk,
entitled ``Staying Union-Free in a Pro-Union World--A Special
Management Briefing.'' And you presented that to the Florida
Transportation Builders Association Contractors Construction
In this PowerPoint for the Costangy law firm, you are
stated that you are a labor employment lawyer for business, and
that you help businesses stay union-free. Is that how you see
your role as a businessperson? Your job is to help businesses
Mr. Russell. That is correct Congressman--whenever the
client requests. That is correct. When the clients request that
service, I do provide it. I do it by the ways I have described
today. Providing information to my clients.
Mr. Tierney. Look, I just wanted to make it clear who we
are dealing with here----
Mr. Russell. Correct. By providing information to my
clients that they----
Mr. Tierney. You also----
Chairman Kline. The gentleman's time has expired.
We have had an opportunity for all members to ask
questions. I want to thank the panel, and I will turn to Mr.
Miller for his closing remarks.
Mr. Miller. Well, thank you, Mr. Chairman. I would just
sort of pick up where Mr. Hunter left off. And that is that it
is hard to see how you keep out the issues that Mr. Cohen has
suggested would never be raised. Because, in fact, the language
in your bill suggests that all of these issues can be raised in
these hearings, and any other issue resolution which may make
an election unnecessary or which reasonably is expected to
impact an election's outcome.
And then during that hearing, parties may independently
raise any issue or assert any position any time prior to the
close of the hearing. And since you must now have that hearing
as a matter of law, it is not the discussion of the board. It
is the law, and that review will take the review of the post
It seems to me that you have done exactly what many have
sought to do over the years. And that is to basically prevent
the National Labor Relations Board from providing a remedy to
the rights for which it was designed and brought into being to
It is very clear in section 1 of the Act, when it says ``to
eliminate the causes of certain substantial obstructions to the
free flow of commerce, and to mitigate and eliminate these
obstructions, where they have occurred, by encouraging the
practice and procedure of collective bargaining, and by
protecting the exercise by workers of full freedom of
association, and self-organization,'' and so forth.
I mean, that may sound as an anachronism or something that
does not fit in today's globalized economy. But the fact of the
matter is, that is how workers get rights at work. That is how
workers get a safe workplace, that is how they get a decent
wage, that is how they get decent hours, decent benefits, and
And now what you are setting in motion is a review process
and a hearing process that when it has been invoked in a
limited number of cases it is an average where the elections
have been held, the ballots have been impounded. And now you
have the review.
It sees, on the average, some 500 days over the many years
of that review. And we all know that this is a competition
between holding that potential bargaining unit together, and
fracturing it. And so time is on the side of those who would
want to fracture it. Because employees get promoted, employees
leave, they get other opportunities elsewhere.
They move, they get divorced, whatever happens in their in
their lives. And that works to whittle away the unity that
those members might have had. The idea that actions are never
taken against them, they are not intimidated? They are
intimidated all the time. That is what all those cases are
about on unfair labor practices.
People are fired all of the time, and they get back pay if
they are successful some years later getting rehired by their
employer after the determination of that case. These actions go
on all the time. And so now what you have set up is the perfect
storm between raising frivolous cases, invoking the legal
resources of the board, and swamping them now with hearings.
And then reviews of those hearings so the opportunity to
get the collective bargaining rights that are provided for in
the establishment of the National Labor Relations Act are
eviscerated by this legislation.
That is consistent with the opinion of most of the members
on the other side of the aisle here. That is what they would
like to do. They see no reason for this Board to continue, or
the act to continue. And yet it is absolutely critical to
employees having some bargaining power in the workplace, to
hold on to the foothold that they might have in middle class.
And we obviously know that the benefits of that go even to
those employees who are not in the unionized workplace. But
that process continues to support their wages, their benefits.
So, Mr. Chairman, I would hope that this legislation would
undergo extensive revision if we are going to consider it. But
I really believe that it really, really strips the rights of
workers under the laws that have served both employers and
employees well for many, many years is--now at risk of being
destroyed by this this legislation. Thank you.
Chairman Kline. I thank the gentleman. I have been given
three letters in support of H.R. 3094. I would ask you now for
consent that those be inserted in the record. Hearing no
objection, the letters----
[The information follows:]
October 11, 2011.
Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
Education and the Workforce Committee, U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Kline and Ranking Member Miller: On behalf of
Associated Builders and Contractors (ABC), a national association with
75 chapters representing 23,000 merit shop construction and
construction-related firms with nearly two million employees, I am
writing in regard to the full committee hearing on the Workforce
Democracy and Fairness Act (H.R. 3094).
ABC supports the Workforce Democracy and Fairness Act, which would
block the National Labor Relations Board (NLRB) from moving forward
with its ``ambush'' elections proposal and also reverse the Board's
recent decision in Specialty Healthcare.
For more than a year, the NLRB has moved forward with an agenda
that is creating an environment of economic uncertainty and threatening
to harm the construction industry. The NLRB's decisions, proposed
rules, invitations for briefs and enforcement policies demonstrate that
the agency has abandoned its role as a neutral enforcer and arbiter of
labor law in order to promote the special interests of politically
powerful unions. These actions will have negative implications for
workers, consumers, businesses and the economy, including:
In August, ABC criticized a NLRB proposed rule that could
dramatically shorten the time frame for union organizing elections from
the current average of 38 days to as few as 10 days between when a
petition is filed and the election occurs. ABC submitted comments to
the NLRB stating the proposed rule would significantly impede the
ability of construction industry employers to protect their rights in
the pre-election hearing process; hinder construction employers'
ability to share facts and information regarding union representation
with their employees; and impose numerous burdens without any reasoned
justification on small merit shop businesses and their employees, which
constitute the majority of the construction industry. In the largest
response on record, the NLRB received more than 70,000 comments, many
of which strongly opposed the proposed changes.
Specialty Healthcare and Rehabilitation Center of Mobile and
In an August 30 decision, the Board ruled that a union could seek
to organize a group of nursing assistants, despite requests by the
employer to include other employees in the unit. The decision
effectively creates a new standard for bargaining unit determinations
for all industries. This reverses a standard that has been in place for
decades without controversy. The new standard places a heavy burden of
proof on the employer to show that the excluded employees should be
At this time of economic challenges, it is unfortunate that the
NLRB continues to move forward with policies that threaten to paralyze
the construction industry and stifle job growth. We commend the
committee for holding a hearing on this important matter and urge
immediate passage of the Workforce Democracy and Fairness Act (H.R.
Corinne M. Stevens, Senior Director,
Legislative Affairs, Associated Builders and Contractors, Inc.
October 12, 2011.
Hon. John Kline, Chairman,
Committee on Education and Workforce, U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Kline: On behalf of the National Association of
Manufacturers (NAM), I am writing to express manufacturers' strong
support for H.R. 3094, the Workforce Democracy and Fairness Act.
The NAM is the nation's largest industrial trade association,
representing small and large manufacturers in every industrial sector
and in all 50 states. The NAM's mission is to enhance the
competitiveness of the manufacturing economy by advocating policies
that are conducive to U.S. economic growth.
The recent actions and the decisions of the National Labor
Relations Board (NLRB) demonstrate the Board's commitment to pursue an
activist agenda that threatens economic growth and jobs. This agenda
would burden manufacturers with harsh rules, making it harder to do
business in the United States. If enacted, the Workforce Democracy and
Fairness Act would restore the balance needed to ensure employees
receive the information they need to make an informed decision and give
job creators the certainty they require to be confident in hiring and
According to the NLRB's proposed ``ambush election'' rule,
employers would have as few as 10 days to communicate with their
employees between the time they learn that a union is trying to
organize the workforce and the election. This proposed rule represents
a dramatic shift in union election procedures that have stood for
decades. If finalized, this new regulation would pose a considerable
burden on employers and limit the ability of employees to make an
informed decision on joining a union.
Additionally, the Board's decision in the Specialty Healthcare case
represents the most dramatic change in labor law in 50 years. The
decision sets forth a new standard for determining which group or
``unit'' of employees will vote in the union election. These ``micro-
unions'' could cripple an employer's ability to manage operations in an
effective way, resulting in a manufacturing facility with separate
unions representing custodial staff, assemblers, and fitters. We
believe this decision will unnecessarily divide employees and place an
extraordinary burden on employers.
Your bill, by guaranteeing an employer's ability to participate in
a fair union election process by establishing a 14 day timeframe for an
employer to prepare a case to be heard by the NLRB and establishing no
union election will be held in less than 35 days, ensures employees are
able to make fully informed decisions about joining a union. Your bill
would also correctly reestablish decades of law, reinstating the
standard by which employees vote in the union elections and preventing
the possibility of several ``micro-unions'' at one facility.
We look forward to continue working with you on our shared goals
for a strong economy, job creation and promoting fair and balanced
labor laws. Thank you for bringing the Workforce Democracy and Fairness
Act forward in the Committee. I urge its swift enactment.
Joe Trauger, Vice President,
Human Resources Policy.
October 14, 2011.
Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
Committee on Education and the Workforce, 2181 Rayburn House Office
Building, Washington, DC 20515.
RE: Committee Hearing on H.R. 3094 ``The Workforce Democracy and
Dear Sirs: We are writing to express the strong support of HR
Policy Association for H.R. 3094, ``The Workforce Democracy and
Fairness Act'' (``Act'' or ``legislation''). We are very concerned with
the National Labor Relations Board's recent activity including the
issuance of the proposed regulation regarding representation case
procedure\1\ and the Specialty Healthcare decision.\2\ This legislation
targets and would remedy the serious problems associated with the
proposed rule and the Specialty Healthcare decision and would provide
greater freedom of choice and protections for employees in union
elections. We respectfully request that this letter be included in the
\1\ 76 Fed. Reg. 36812.
\2\ 357 NLRB No. 83 (August 26, 2011).
HR Policy Association is a public policy advocacy organization
representing chief human resource officers of major employers. The
Association consists of more than 330 of the largest corporations doing
business in the United States and globally, and these employers are
represented in the organization by their most senior human resource
executive. Collectively, these companies employ more than 10 million
people in the United States, and their chief human resource officer are
generally responsible for employee and labor relations for their
The legislation would establish minimum time frames for union
representation elections that would closely approximate the current 38-
day median rejecting the NLRB's recently proposed election rules that
could result in elections being held in as few as 10 days, giving
employees little time to hear the employer's position as well as that
of their co-employees. The bill also preserves existing procedures that
enable the NLRB to sufficiently determine which employees should be
included in the unit that the union would represent. Finally, the bill
would overturn the recent Specialty Healthcare decision, which will
result in fragmented workplaces where unions can represent extremely
small groups of employees (e.g., the cashiers in a retail setting) even
where their interests coincide with the broader workforce.
The Board's recent actions including most prominently the proposed
regulation dramatically shortening the time for union elections, and
the Specialty Healthcare decision which encourages micro-units in the
workplace, all serve to disrupt the workplace and undermine and hinder
job growth and economic recovery. We applaud your Committee for holding
a hearing on The Workforce Democracy and Fairness Act and urge Congress
to pass the Act. What follows are the Association's concerns regarding
the proposed election regulations and concerns related to the recently
issued Specialty Healthcare decision, which the legislation would
I. NLRB's Expedited Election Rules Would Curtail Employees' Ability to
Make a Fully Informed Decision on Union Representation
Election Data Indicates Proposal is a Solution in Search of a
Problem. In a statement issued in conjunction with publication of the
rules, NLRB Chairman Wilma Liebman states that, despite some
improvements over the years, ``the current [election] rules still seem
to build in unnecessary delays, to encourage wasteful litigation, to
reflect old-fashioned communication technologies, and to allow
haphazard case-processing.'' Yet, the case is not made in the proposal
for this apparent breakdown. Indeed, in his dissent, NLRB Member Brian
Hayes cites NLRB data to show that the vast majority of elections
proceed in a very expeditious manner. Currently, the NLRB's internal
objective in representation cases is to complete elections within 42
days of the filing of the petition.\3\ However, in 2010, the regional
offices exceeded this objective, completing initial elections in
representation cases in a median of 38 days from the filing of the
petition. Citing BNA data, Member Hayes adds: ``Inasmuch as unions
prevailed in 67.6 percent of elections held in calendar year 2010 and
in 68.7 percent of elections held in calendar year 2009, the percentage
of union victories contemplated by the majority in the revised rules
must be remarkably high.'' \4\ H.R. 3094 recognizes that the
longstanding existing election procedures are wholly adequate.
\3\ NLRB General Counsel, Summary of Operations (Fiscal Year 2010),
GC. Mem. 11-03, at 5 (January 10, 2011).
\4\ ``Number of NLRB Elections Held in 2010 Increased Substantially
from Previous Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 (May 3,
Failure to Seek Stakeholder Views. In addition to its failure to
justify the need for the proposed changes, the credibility of the
proposed rules is further undermined by the decision of the Board not
to solicit any views from the stakeholder community before issuing the
proposal. In our Blueprint for Jobs in the 21st Century, the
Association recommends ``involvement of essential stakeholders in the
formulation of new employment policies'' (i.e., through a process of
negotiated rulemaking) as a solution to the problem of existing rules
failing to reflect the realities of the workplace. Instead of being
formulated through a collaborative process, employment regulations
often simply implement the wish list of a powerful interest group.
Moreover, President Obama's Executive Order 13563 specifically states
that ``[b]efore issuing a notice of proposed rulemaking, each agency,
where feasible and appropriate, shall seek the views of those who are
likely to be affected, including those who are likely to benefit from
and those who are potentially subject to such rulemaking.'' While
independent agencies like the NLRB are not required to comply with the
Executive Order, they should operate within its spirit, particularly in
a highly sensitive matter like union representation elections, where a
number of interests are affected. As Member Hayes notes in his dissent,
there were a number of ways of involving the affected stakeholders in
this process, including negotiated rulemaking or, at the very least,
receiving comment by the Board's standing Rules Revision Committee and
by the Practice and Procedures Committee of the American Bar
Association. Indeed, some of the proposed changes, such as allowing the
electronic filing of key documents with the Board, have not generated
significant opposition and, as part of an overall collaborative
process, could be part of a package of welcome improvements to the
Board's election procedures.
Curtailing Employee Access to Essential Information Before Voting.
The Workforce Democracy and Fairness Act would reject the Board's
proposed ``hurry up and vote'' procedures, under which employees will
be denied critical information in making an informed decision regarding
whether to be represented by a union--a decision that in the vast
majority of situations is, as a practical matter, a permanent one that
will bind not only the voting employees but later hires as well. Under
the proposed regulations, there are two critical areas where key
information will be limited or curtailed:
Shorter Campaign Periods. While the proposed rules do not
identify a specific time target, a key provision in the changes
requires the NLRB regional director to set the election at ``the
earliest date practicable.'' Member Hayes estimates that the changes
will result in elections between 10 and 21 days. This is far shorter
than the current 38 day median (within which, as BNA data indicates,
unions win 2 of every 3 elections already), which is itself a
considerably shorter period already than voters have in deciding
whether a candidate will represent them for 2, 4 or 6 years in
Washington. In most cases, this gives employees ample opportunity to
hear not only from their employer but to discuss the issues among
themselves. Both the Board and the U.S. Supreme Court have recognized
that Federal labor policy favors ``uninhibited, robust, and wide-open
debate in labor disputes'' and that the enactment of Section 8(c)
``manifested a congressional intent to encourage free debate on issues
dividing labor and management.'' \5\
\5\ See Chamber of Commerce of the United States v. Brown, 554 U.S.
60, 60-68 (2008); Franzia Bros. Winery, 290 N.L.R.B. 927, 932 (1988).
Section 8(c) of the National Labor Relations Act protects an employer's
right to communicate with employees regarding unions and representation
Not Knowing Who Else the Union Would Represent. In seeking
to expedite the election process, the proposed rules would eliminate
pre-election proceedings in certain situations where the employer
disputes the union's claim of which employees will vote upon and
potentially be represented by the union. Currently, the Board will make
a ``unit determination'' in those situations before the employees vote.
The dispute may be based on different job classifications or, as
discussed below, whether certain employees are exempt supervisors and
therefore excluded from the voting and the representation. The proposed
rules provide that, where the disputed group of employees involves
fewer than 20 percent of the total number, all employees are to vote
anyway, with the votes to be counted after the unit determination is
made. Thus, in a casino setting, the blackjack and poker dealers may
have to vote without knowing whether their terms and conditions of
employment will be covered by a collective bargaining agreement that
also covers waiters and waitresses, bartenders and others that may or
may not have a sufficient ``community of interest'' with them.
Uncertain Status of Supervisors. One critical group that will be
affected by the ``20 percent'' rule just described are supervisors,
whose exempt status determines not only whether they will vote and be
represented by the union, but also whether their conduct is regulated
by the same rules that apply to the employer. Thus, if they participate
as employees in the campaign and it is later determined that they were
in fact supervisors, statements they made for or against the union
could be deemed coercive. This could result in the election being
overturned, as occurred in Harborside Healthcare, Inc., where an
employee who helped the union solicit supporters was later deemed a
\6\ 343 N.L.R.B. 906 (2004).
Denial of Employer Due Process Rights. A number of the changes,
purportedly in the interests of expediting election procedures, would
curtail the ability of employers--especially small businesses--to
effectively present their position to the Board on critical issues like
which employees should or should not be in the unit. Many of these
highly technical but significant changes would violate the requirement
of ``an appropriate hearing'' under the National Labor Relations Act,
Limiting access to the NLRB for review of both pre-
election and post-election determinations made by regional bureaucrats
who often are not lawyers;
Requiring employers to articulate and substantiate their
positions on key election issues prior to any hearing or risk waiving
those arguments; nor could they offer evidence or cross-examine
witnesses with respect to virtually any issues not raised by them at
the outset, even if those issues have a critical impact on the
Requiring an employer who contests the union's description
of the ``appropriate unit'' to identify ``the most similar unit'' that
the employer would deem appropriate, and provide the names, work
locations, shifts and job classifications of those employees, which
would then become available to the union.
Expanding Union Access to Employees' Personal Information. Under
current procedures, once an election is ordered, employers are required
to provide the union with a list of the names and addresses of the
employees who will be voting. The proposed rules would expand the
information required under so-called ``Excelsior lists'' \7\ to include
telephone numbers and email addresses, though it is not clear whether
this information would be personal, business or both. Either is
problematic. If personal email addresses and telephone numbers are
required, this would be a significant incursion on employees' privacy.
If the requirement involves business telephone numbers and email
addresses, this would be an unprecedented expansion of union access to
employers' workplaces. The Workforce Democracy and Fairness Act would
protect employee privacy and limit the information made available
making it similar to the longstanding procedure.
\7\ Named after Excelsior Underwear, Inc., 156 N.L.R.B. 1236
II. The NLRB's Decision in Specialty Healthcare Furthers Long-term Goal
of Labor to Undermine Fundamental American Labor Law Principle
of ``Majority Rules''
Decided on August 26, 2011 by a vote of 3 to 1, with NLRB Member
Brian Hayes dissenting, the decision in Specialty Healthcare,\8\
enables unions to secure organizing victories by carving out very small
``micro-units'' within a workplace, such as cashiers in a retail
setting or poker dealers in a casino setting. What makes the situation
even more alarming is the inability of employers to obtain a prompt
review in the courts, which will likely take two or three years at
best. Consequently, prompt legislative action such as the Workforce
Democracy and Fairness Act is necessary.
\8\ 357 NLRB No. 83 (August 26, 2011).
Determining Who Votes in a Union Representation Election. When a
union seeks to organize employees in a workplace, the first issue to be
addressed is usually which group of employees will vote and ultimately
be represented by the union if it is successful--i.e., the
``appropriate unit.'' The general touchstone in making this
determination, which is very fact-sensitive, is whether there is a
``community of interest'' among the employees. When a union has
authorization cards signed by at least 30% of the employees in the
unit, it files a petition with the NLRB regional office. If the
employer believes the union's target is not an appropriate unit, it can
challenge the petition, prompting a hearing and determination by the
Board as to what the appropriate unit is, i.e., a ``unit
determination.'' In making this determination, there is a presumption
in favor of the union's petition. However, if the employer believes
that other employees have been inappropriately excluded, it will argue
that there is a broader community of interest and, prior to Specialty
Healthcare, the employer generally could prevail if it could show that
the union's unit does not have interests that are ``sufficiently
distinct'' from the larger group.\9\ The legislation would generally
preserve this framework.
\9\ Cf. Wheeling Island Gaming, 355 NLRB No. 127, Slip. Op. at 1
n.2 (August 27, 2010); Newton-Wellesley Hospital, 250 NLRB 409, 411-12
Union's Victory Strategy Often Premised on Smallest Possible Group.
The smaller the group of employees voting in an election, the fewer the
union needs to gain a majority. Thus, unless there is strong sentiment
favoring the union in the larger workplace, the union will target a
discrete group where pro-union sentiment is strongest and hope to hold
the support of a majority of them in the election. If successful, the
union can then try to secure better wages, benefits and other
advantages for this small group, creating a case it can then make to
the larger workforce. Thus, in Specialty Healthcare, rather than
seeking to organize the entire non-acute healthcare facility--or even
all nurses--the the union targeted certified nursing assistants (CNAs),
and excluded registered nurses (RNs) and licensed professional nurses
(LPNs), not to mention cooks, dietary aides, business clericals,
residential activity assistants and others covered by the employers
human resource policies.
The Goal of Organizing ``Minority Unions.'' As organized labor's
ability to organize new members has declined, it has begun supporting
the concept of ``minority unions,'' i.e., enabling any subset of a
workforce's employees to form a union that the employer must bargain
with, even if a majority of the employees do not support it. Although a
petition has been filed with the NLRB by a broad coalition of unions to
achieve this through rulemaking,\10\ the National Labor Relations Act
is clearly based on a ``majority rule'' principle. Moreover, such a
policy, which mirrors the laws in several European countries, would be
viewed by employers and, likely the overwhelming majority of
policymakers as well, as being highly disruptive and divisive in
American workplaces at a time when U.S. employers are struggling to
compete globally. Nevertheless, organized labor is interested in any
approach that enables it to subdivide a workforce to obtain smaller
``majorities'' in elections.
\10\ Petition in the Matter of Rulemaking Regarding Members-Only
Minority-Union Collective Bargaining (Aug. 14, 2007).
The Specialty Healthcare Decision. In Specialty Healthcare, the
Board adopted a new standard for determining appropriate units, raising
the bar substantially--impossibly, in the view of many labor lawyers--
for an employer to challenge the union's unit as excluding other
employees with a shared community of interest. Abandoning the
``sufficiently distinct'' standard, the Board will now require
employers to show that there is an ``overwhelming community of
interest'' with the larger group by pointing to ``factors that overlap
almost completely.'' Effectively, any time a union files a petition
involving a group of employees with the same job title and description,
it will likely prevail. Although in deciding the case the Board sought
in one part of the decision to claim that the new rule would only apply
in non-acute health care facilities, the otherwise broad statements
made in the decision prompted dissenting Member Brian Hayes to point
out what management attorneys are generally concluding as well:
[T]his test obviously encourages unions to engage in incremental
organizing in the smallest units possible * * * [It will] make it
virtually impossible for a party opposing this unit to prove that any
excluded employees should be included * * * [T]he Board's Regional
Offices * * * will have little option but to find almost any
petitioned-for unit appropriate * * *\11\
\11\ Specialty Healthcare, 357 NLRB No. 83, Slip. Op. at 19-20.
The Disruptive Impact of the Decision. The successful operation of
a business often depends on the ability to maintain uniform human
resource policies that provide wage scales, benefits, scheduling,
promotions, and so forth to a broad range of employees within the
workplace. To have these policies fragmented, requiring bargaining with
a union representing a small group of employees every time changes are
made, can make or break the employer's ability to maintain the
flexibility needed to respond to the demands of the marketplace. This
becomes even more difficult if there are multiple unions, each
representing one small part of the workforce. Thus, in a retail
setting, in order to change major store policies, such as hours of
operation, management of work flows during peak seasons, etc., the
store owner may first have to bargain with the unions separately
representing the cashiers, the salespersons in each department, the
loading dock, the delivery truck drivers, etc. To underscore the
absurdity of the ruling in Specialty, an earlier ruling in a case
involving a casino rejected a union's petition to organize the poker
dealers as a distinct unit from the blackjack, roulette, craps dealers
and so forth.\12\ Under Specialty Healthcare, the union would likely
have prevailed, as signaled by Member Craig Becker's dissent in the
\12\ Wheeling Island Gaming, Inc., 355 NLRB No. 127, Slip. Op. at
Inability of Employers to Bring a Legal Challenge Necessitates
Legislative Solution. What is perhaps most disturbing about the
Specialty Healthcare decision is the inability of employers to obtain a
challenge in the courts, due to the complicated procedures of the NLRB.
With extremely rare exceptions, the NLRB does most of its rulemaking
with decisions in cases rather than regulations. There are two kinds of
decisions--those such as Specialty Healthcare involving election
procedures (called ``R cases'') and those involving unfair labor
practices (``C cases''). Only decisions in C cases can be appealed
directly to the federal courts, nor generally is there any realistic
ability to obtain declaratory relief by a court that a Board decision
is wrong. If an employer wishes to challenge an R case decision where
the union ``won'' the election, it must refuse to bargain with the
union, thus committing an unfair labor practice, which then invokes the
Board's procedures in those cases. Thus, the time frame from the filing
of a union petition to a review by the courts typically involves at
least a year or two if not longer. Meanwhile, as employers wait for the
right case to move through these procedures, every NLRB regional office
in the United States will be required to rule on union petitions in
accordance with Specialty Healthcare. Absent legislation overturning
the decision, the disruptive effects will be felt immediately and for a
very long time. Thus, it is imperative for Congress to pass the
Workforce Democracy and Fairness Act.
We applaud the Committee for holding this hearing and appreciate
your consideration of this matter.
Daniel V. Yager,
Chief Policy Officer & General Counsel, HR Policy Association.
Mr. Miller [continuing]. Also under the announcements that
make available documents for the hearing for the record.
Chairman Kline. No objection to either, they will be
submitted for the record.
[The information follows:]
Prepared Statement of Chris Grant, Schuchat, Cook & Werner
Per your request, here is a summary of two examples of employer
abuse of the election process creating delay:
1. Employer refusing to provide issues in advance of hearing and taking
Employers sometimes refuse to provide notice of the issues prior to
the hearing, and then change their positions, resulting in delay. In
ADB Utility Contractors, 353 NLRB No. 21 (2008) and 355 NLRB No. 172
(2010), the employer refused to give its position as to the issues
prior to the representation hearing, forcing the union to guess as to
what the employer would argue. At the representation hearing, the
employer contended that its project supervisors and project managers
(involving less than 20% of the unit) were employees and not
supervisors. Notwithstanding, the employer subsequently argued at the
unfair labor practice trial in the case that various crew leaders which
the employer had fired for their union activity, that worked under the
project supervisors and managers, were statutory supervisors. That is,
the employer took the exact opposite position as to the status of the
same individuals in two, virtually contemporaneous NLRB proceedings.
The employer also knew that the workers were meeting with union
representatives before the union filed the representation petition, and
the employer acted on that knowledge. The General Manager informed
employees that he knew that they were attending union meetings, and the
employer fired several lead union supporters before the union filed the
The Union spent nearly five years having to litigate the employee
status of the crew leaders. In the 2008 decision, the Board noted that
delay in the case was due to the Employer posture on the supervisory
issue which was ``a complete turnaround from its position during the
near contemporaneous representation proceeding.'' The Board noted that,
but for the Employer's contradictory positions, the Board could have
issued a decision earlier.
If the law required exhaustion of Board appeals before an election,
in cases like ADB where employers raise frivolous issues it would take
five years before employees would have the opportunity to vote.
Employees would be denied the right to select a representative for 5
years or more.
2. Employer repeatedly litigating the same position at facilities
across the country despite repeatedly losing
In response to election petitions, the American Red Cross forces
local unions across the country to litigate simple issues that the ARC
has lost multiple times at other facilities. This creates delay.
Unions typically seek to include team leaders (also called mobile
unit leaders, site supervisors, and charges) in Red Cross bargaining
units. These are frontline employees who collect blood and have the
same hours as other employee, work under the close supervisor of low-
level managers, are subject to detailed rules, and have little
discretion in making decisions. The ARC claims these employees are
supervisors. It has lost this claim many times, but continues to raise
it. See American Red Cross, Heart of America Blood Services Region,
Case 33-RC-5033 (May 4, 2007), American Red Cross Blood Services,
Southern California Division, Case 21-RC-20885 (May 11, 2006), American
Red Cross, Missouri-Illinois Blood Services Region, Case 14-RC-12500
(June 10, 2004), American Red Cross Tennessee Valley Blood Services
Region, Case 26-RC8399 (November 24, 2003) (site supervisors are not
statutory supervisors); American Red Cross Blood Services, Northern
Ohio Region, Case 8-RC-16337 (charges are not supervisors); American
Red Cross Badger-Hawkeye Region, Case 13-RC-20710 (March 14, 2002)
(collections specialists II are not statutory supervisors); American
Red Cross Tennessee Valley Blood Services Region, Case 26-RC-8150
(March 13, 2000) (mobile unit leaders are not statutory supervisors);
Tri-State Division Greater Alleghenies Region, American Red Cross, 9-
RC-17310 (November 1, 1999) (charge nurses are not supervisors);
American Red Cross Blood Services, Northern Ohio Region, Case 8-RC-
15906 (August 24, 1999) (charges are not supervisors).
Unions also typically seek to represent collection or blood drive
employees in an area (numbering up to 150 employees). The Red Cross has
repeatedly argued that Unions must represent other non-supervisory
employees in the area, like tele-recruiters and lab techs, that have
little to no contact with the collection employees, work in different
facilities, and work under different supervisor, and do not collect
blood. The ARC has lost this issue repeatedly. American Red Cross,
Arizona Region, Case 28-RC-6452 (July 7, 2006); American Red Cross,
Missouri-Illinois Blood Services Region, Case 14-RC-12500 (June 10,
2004), American Red Cross Tennessee Valley Blood Services Region, Case
26-RC8399 (November 24, 2003); American Red Cross, Blood Services,
Southern Region Savannah East Coast District, Case 10-RC-15296 (August
9, 2002), American Red Cross Badger-Hawkeye Region, Case 13-RC-20710
(March 14, 2002), American Red Cross Blood Services Southwest Region,
Case 16-RC10255 (June 23, 2000); American Red Cross Tennessee Valley
Blood Services Region, Case 26-RC-8150 (March 13, 2000).
The litigation of issues that the ARC repeatedly loses at the least
creates unnecessary delay in scheduling and holding an election. At
worst, it is in bad faith.
If you need additional information, let me know.
Chairman Kline. I want to thank the panel, and just restate
what I think is the obvious. This is a legislative hearing. We
have some legislation before us. We are hearing from experts
their views, their opinions, on the impact of that legislation
and the impact of the proposed rule and rules coming from the
National Labor Relations Board.
It is the intent of the legislation not to clog up the
review process. We are looking to codify what has been existing
practice in both reviews and appeals, and allow this to move
forward smoothly. We believe that the current actions of the
board are injurious to workers, denying them the opportunity to
hear all sides of the debate before they make a truly huge
decision in their lives and their family lives on whether or
not to recognize a union.
We believe that the current ruling is manifestly unfair to
employers, particularly small employers, when they have to deal
with something like this, and more. I understand we have a
multi-volume set, a couple of volumes. And as Mr. Russell
pointed out, there are many, many employers who have no idea
what is coming through the door and they have 7 days to find
the lawyer, get their position in, and then not be able to
So we are looking in this legislation to undo what I think
are very injurious actions of the National Labor Relations
Board, protect the rights of employees and employers as they go
forward to make these decisions. We will be informed by the
hearing today. And if we need some classification, to Mr.
Miller's point, in report language or in changing the language
of the bill to make sure that we are not doing the egregious
harm which has been suggested by the other side, we will of
course be looking at that.
Again, I thank the witnesses for their participation today.
And there being no further business, the committee stands
[The prepared statement of Mr. Kucinich follows:]
Prepared Statement of Hon. Dennis J. Kucinich, a
Representative in Congress From the State of Ohio
Mister Chairman, I strongly oppose H.R. 3094, ``The Workforce
Democracy and Fairness Act.'' It would tear down seventy five years of
National Labor Relations Board (NLRB) case law governing the
appropriateness of a bargaining unit of employees. That case law says
that unions should be able to organize sub-units of an employer, such
as employees of one department, as opposed to all the employees at that
workplace. But H.R. 3094 would allow employers to water down any
potential bargaining unit by using its influence to stack the voting
pool full of guaranteed ``no'' votes.
The NLRB recently proposed a change to the procedures governing the
rights of workers seeking to form a union. The changes would modernize
and improve the procedures currently in place and further protect
workers from efforts to delay or thwart workers exercising their right
to collectively bargain. These changes would bring improvements for
American workers. H.R. 3094 would prevent these important changes from
taking place and serves as yet another bill brought by the majority of
this committee that would significantly undermine the right of American
workers to collectively bargain.
The bill would allow employers to indefinitely delay union
elections by requiring the National Labor Relations Board to hear and
issue a formal decision on every appeal, no matter how arbitrary, made
by employers. This will force workers seeking to assert their right to
collectively bargain to wait months, even years, until an actual union
election can take place.
The intent of H.R. 3094 is clear: to impede the right of workers to
collectively bargain. Given that about 14 million Americans are out of
work and another 8 million are unable to find enough work to live
reasonably, it is a shame that this Committee is wasting its resources
on another piece of legislation that attacks the National Labor
Relations Board. One of the greatest barriers toward an American
economic recovery is the steady weakening of the middle class. This
bill does nothing to help that. Instead, it is another step in the
112TH CONGRESS FIRST SESSION
To amend the National Labor Relations Act with respect to
representation hearings and the timing of elections of labor
organizations under that Act.
IN THE HOUSE OF REPRESENTATIVES
October 5, 2011
Mr. Kline (for himself, Mr. McKeon, Mr. Wilson of South
Carolina, Ms. Foxx, Mr. Hunter, Mr. Roe of Tennessee,
Mr. Thompson of Pennsylvania, Mr. Walberg, Mr.
DesJarlais, Mr. Rokita, Mr. Bucshon, Mr. Gowdy, Mrs.
Roby, Mr. Ross of Florida, and Mr. Kelly) introduced
the following bill; which was referred to the Committee
on Education and the Workforce
To amend the National Labor Relations Act with respect to
representation hearings and the timing of elections of labor
organizations under that Act.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workforce Democracy and
SEC. 2. TIMING OF ELECTIONS.
Section 9 of the National Labor Relations Act (29 U.S.C.
159) is amended--
(1) in subsection (b) by striking the first
sentence and inserting the following: ``In each case,
prior to an election, the Board shall determine, in
order to assure to employees the fullest freedom in
exercising the rights guaranteed by this Act, the unit
appropriate for the purposes of collective bargaining.
Unless otherwise stated in this Act, the unit
appropriate for purposes of collective bargaining shall
consist of employees that share a sufficient community
of interest. In determining whether employees share a
sufficient community of interest, the Board shall
consider (1) similarity of wages, benefits, and working
conditions; (2) similarity of skills and training; (3)
centrality of management and common supervision; (4)
extent of interchange and frequency of contact between
employees; (5) integration of the work flow and
interrelationship of the production process; (6) the
consistency of the unit with the employer's
organizational structure; (7) similarity of job
functions and work; and (8) the bargaining history in
the particular unit and the industry. To avoid the
proliferation or fragmentation of bargaining units,
employees shall not be excluded from the unit unless
the interests of the group sought are sufficiently
distinct from those of other employees to warrant the
establishment of a separate unit. Whether additional
employees should be included in a proposed unit shall
be based on whether such additional employees and
proposed unit members share a sufficient community of
interest, with the sole exception of proposed
accretions to an existing unit, in which the inclusion
of additional employees shall be based on whether such
additional employees and existing unit members share an
overwhelming community of interest and the additional
employees have little or no separate identity.''; and
(2) in subsection (c)(1) in the matter following
(A) by inserting ``, but in no
circumstances less than 14 calendar days after
the filing of the petition'' after ``hearing
upon due notice'';
(B) by inserting before the last sentence
the following: ``An appropriate hearing shall
be one that is non-adversarial with the hearing
officer charged, in collaboration with the
parties, with the responsibility of identifying
any pre-election issues and thereafter making a
full record thereon. Pre-election issues shall
include, in addition to unit appropriateness,
the Board's jurisdiction and any other issue
the resolution of which may make an election
unnecessary or which may reasonably be expected
to impact the election's outcome. Parties may
raise independently any issue or assert any
position at any time prior to the close of the
(C) in the last sentence--
(i) by inserting ``and a review of
post-hearing appeals'' after ``record
of such a hearing''; and
(ii) by inserting ``to be conducted
as soon as practicable but not less
than 35 calendar days following the
filing of an election petition'' after
``election by secret ballot''; and
(D) by adding at the end the following:
``Not earlier than 7 days after final
determination by the Board of the appropriate
bargaining unit, the Board shall acquire from
the employer a list of all eligible voters to
be made available to all parties, which shall
include the employee names, and one additional
form of personal employee contact information
(such as telephone number, email address or
mailing address) chosen by the employee in
[Whereupon, at 12:25 p.m., the committee was adjourned.]