[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
RUSHING UNION ELECTIONS: PROTECTING
THE INTERESTS OF BIG LABOR AT THE
EXPENSE OF WORKERS' FREE CHOICE
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
HEARING HELD IN WASHINGTON, DC, JULY 7, 2011
Serial No. 112-31
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 David Wu, Oregon
Richard L. Hanna, New York Rush D. Holt, New Jersey
Todd Rokita, Indiana Susan A. Davis, California
Larry Bucshon, Indiana Raul M. Grijalva, Arizona
Trey Gowdy, South Carolina Timothy H. Bishop, New York
Lou Barletta, Pennsylvania David Loebsack, Iowa
Kristi L. Noem, South Dakota Mazie K. Hirono, Hawaii
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 July 7, 2011..................................... 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Prepared statement of.................................... 3
McKeon, Hon. Howard P. ``Buck,'' a Representative in Congress
from the State of California, prepared statement of........ 6
Miller, Hon. George, senior democratic member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 5
Statement of Witnesses:
Carew, John, president, Carew Concrete & Supply Co........... 33
Prepared statement of.................................... 35
Dau-Schmidt, Kenneth G., J.D., Ph.D., Willard and Margaret
Carr professor of labor and employment law, Indiana
University Maurer School of Law............................ 25
Prepared statement of.................................... 27
Getts, Larry, employee of Dana Corporation................... 22
Prepared statement of.................................... 23
Lotito, Michael J., partner, Jackson Lewis LLP............... 37
Prepared statement of.................................... 38
Schaumber, Peter C., former Chairman, National Labor
Relations Board............................................ 8
Prepared statement of.................................... 10
Bishop, Hon. Timothy H., a Representative in Congress from
the State of New York:
Reitz, William, T-Mobile USA worker, prepared statement
Hirono, Hon. Mazie K., a Representative in Congress from the
State of Hawaii:
Bixby, R. Brian, prepared statement of................... 99
Holt, Hon. Rush D., a Representative in Congress from the
State of New Jersey:
Letter dated June 23, 2011, from Service Employees
International Union.................................... 101
McCarthy, Hon. Carolyn, a Representative in Congress from the
State of New York:
Tench, Veronica, lab assistant, St. Vincent's Medical
Center, prepared statement of.......................... 58
Follow-up statement for the record....................... 94
Burns, Melinda, newspaper reporter, prepared statement of 95
Fisk, Catherine L., chancellor's professor of law,
University of California, Irvine, letter dated July 6,
Grace, Brandii, prepared statement of.................... 95
Miechur, Trisha, certified nurse's aide, HCR ManorCare,
prepared statement of.................................. 98
``Employee Rights'' poster............................... 90
NLRB Decision, cases 1-CA-39764, 1-CA-39971, 1-CA-39972,
and 1-CA-40139, ``Shaw's Supermarkets, Inc. and United
Food and Commercial Workers International Union, Local
1445, AFL-CIO,'' Internet address to................... 91
NLRB Decision, case no. 9-CA-40471, ``Diversicare Leasing
Corp. d/b/a Wurtland Nursing & Rehabilitation Center
and District 1199, The Health Care and Social Service
Union, SEIU,'' Internet address to..................... 91
U.S. Chamber of Commerce white paper, ``Responding to
Union Rhetoric: The Reality of the American
Workplace,'' Internet address to....................... 85
RUSHING UNION ELECTIONS: PROTECTING THE INTERESTS OF BIG LABOR AT THE
EXPENSE OF WORKERS' FREE CHOICE
Thursday, July 7, 2011
U.S. House of Representatives
Committee on Education and the Workforce
The committee met, pursuant to call, at 10:05 a.m., in room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, Petri, McKeon, Biggert,
Platts, Wilson, Foxx, Goodlatte, Hunter, Roe, Walberg,
DesJarlais, Hanna, Rokita, Bucshon, Gowdy, Barletta, Roby,
Ross, Kelly, Miller, Kildee, Payne, Andrews, Woolsey, Hinojosa,
McCarthy, Tierney, Kucinich, Wu, Holt, Davis, Bishop, and
Staff present: Andrew Banducci, Professional Staff Member;
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, Professional Staff
Member; Barrett Karr, Staff Director; Ryan Kearney, Legislative
Assistant; Brian Newell, Deputy Communications Director;
Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Linda Stevens, Chief Clerk/
Assistant to the General Counsel; Alissa Strawcutter, Deputy
Clerk; Loren Sweatt, Senior Policy Advisor; Kate Ahlgren,
Minority Investigative Counsel; Aaron Albright, Minority
Communications Director for Labor; Tylease Alli, Minority
Clerk; Jody Calemine, Minority Staff Director; John D'Elia,
Minority Staff Assistant; Brian Levin, Minority New Media Press
Assistant; Celine McNicholas, Minority Labor Counsel; Megan
O'Reilly, Minority General Counsel; Julie Peller, Minority
Deputy Staff Director; Meredith Regine, Minority Labor Policy
Associate; and Michele Varnhagen, Minority Chief Policy
Advisor/Labor Policy Director.
Chairman Kline. A quorum being present, the committee will
come to order. Good morning, everyone. I would like to welcome
our guests and thank our witnesses for being with us today.
This week, the Wall Street Journal noted that, quote--``The
stumbling recovery has also proven to be the worst since the
economic disaster of the 1930s.'' With the backdrop of this
difficult economy, we meet today to discuss the National Labor
Relations Board's recent proposal to rush union elections.
This proposal is the latest example of an activist NLRB
crafting a solution to a problem that does not exist. The
proposal will enact sweeping change to the nation's workplaces
at a time when many employers are struggling to keep their
businesses open, and nearly 14 million individuals are
searching for work.
It is a step in the wrong direction, and we must reverse
course. The board's flawed proposal will upend an election
system that has served employers and workers well for decades.
On average, elections are held within 31 days of the date a
petition is filed. Last year, 95 percent of all initial
elections were conducted in less than 60 days.
In 2009, the median time between notice of a preelection
hearing and the end of the same hearing was just 13 days.
Acting general counsel, Leif Solomon, described this record as
outstanding--``an excellent case-handling performance.'' His
quotes. I realize there are times when cases simply take too
long to resolve, creating frustration for employers and
Any party that causes needless delay should be held
accountable. However, I believe Mr. Solomon's strong
endorsement of the board's record suggests these instances are
exceptions to the rule. Despite this record of success, the
Obama board seems to believe the current process is not doing
enough to advance the cause of big labor.
Unions currently win nearly 70 percent of all elections,
yet the rules of the game are being rewritten to further tilt
the playing field in favor of union interests. Under the
board's proposal, a union election could occur in as little as
10 days. Where big labor cannot convince workers to unionize
through an open and fair process, the NLRB will step in to
stifle an employer's free speech and undermine an employee's
I know there are some who consider this a modest proposal
that will help promote, quote--``fair elections.'' But I wonder
if a small business owner, already struggling to keep the doors
open, would consider it modest to have just 7 days to find
legal representation and prepare their case to present to the
Is it fair to tell workers the views of their employers are
less important than the views of the union? Is it modest to
delay important questions, such as vote eligibility until after
the election? Is it fair to provide to the union an employee's
phone number, work location, email address, further subjecting
workers to union pressure and jeopardizing their privacy?
Is it fair to tell workers they may have as little as 10
days to consider all of the ramifications of joining a union
before they cast a ballot in the election? These are the
questions that lie at the heart of the board's proposal, and I
believe they lead to a resounding and categorical ``no.''
I have in my hand a document released by the NLRB's general
counsel titled ``An Outline--An Outline of Law and Procedure in
Representation Cases.'' This is the outline. It is broken down
into 24 different sections, and spans nearly 450 pages. Keep in
mind, this represents merely an outline of the legal morass an
employer confronts during a union election.
It is a challenge for any large business with a team of
skilled attorneys on staff, let alone the small employer who
lacks the legal knowledge and resources necessary to navigate
the complexities of federal labor law. Forcing employers and
workers to grapple with the full consequences of all this in as
little as 10 days will undermine and employer's ability to
communicate with their employees and cripple the worker's
ability to make a fully informed decision.
I am confident we will hear our friends on the other side
of the aisle criticize today's hearing. It is certainly their
right to do so. However, we all have a responsibility to
oversee the board's activities and ensure it is working for the
best interests of all workers.
The board's recent proposal is part of an ongoing effort to
promote a culture of union favoritism that is creating greater
uncertainty among America's job creators. We cannot sit by and
become willing accomplices in the NLRB's job-destroying agenda.
I look forward to hearing from our witnesses today.
And with that, I will now recognize Mr. Miller, senior
Democrat of the committee, 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. I would like to welcome our guests and thank our
witnesses for being with us today.
This week, the Wall Street Journal noted that ``the stumbling
recovery has also proven to be the worst since the economic disaster of
the 1930s.'' With the backdrop of this difficult economy, we meet today
to discuss the National Labor Relations Board's recent proposal to rush
union elections. This proposal is the latest example of an activist
NLRB crafting a solution to a problem that doesn't exist. The proposal
will enact sweeping change to the nation's workplaces at a time when
many employers are struggling to keep their businesses open and nearly
14 million individuals are searching for work. It is a step in the
wrong direction, and we must reverse course.
The board's flawed proposal will upend an election system that has
served employers and workers well for decades. On average, elections
are held within 31 days of the date a petition is filed. Last year, 95
percent of all initial elections were conducted in less than 60 days.
In 2009, the median time between notice of a pre-election hearing and
the end of the same hearing was just 13 days. Acting General Counsel
Lafe Solomon, someone who is no shill for big business, described this
record as ``outstanding'' and ``excellent casehandling performance.''
I realize there are times when cases simply take too long to
resolve, creating frustration for employers and workers. Any party that
causes needless delay should be held accountable. However, I believe
Mr. Solomon's strong endorsement of the board's record suggests these
instances are exceptions to the rule.
Despite this record of success, the Obama board seems to believe
the current process isn't doing enough to advance the cause of Big
Labor. Unions currently win nearly 70 percent of all elections, yet the
rules of the game are being rewritten to further tilt the playing field
in favor of union interests. Under the board's proposal, a union
election could occur in as little as 10 days. Where Big Labor can't
convince workers to unionize through an open and fair process, the NLRB
will step in to stifle an employer's free speech and undermine an
employee's free choice.
I know there are some who consider this a ``modest'' proposal that
will help promote ``fair'' elections. But I wonder if a small business
owner--already struggling to keep the doors open--would consider it
``modest'' to have just seven days to find legal representation and
prepare their case to present to the NLRB?
Is it fair to tell workers the views of their employers are less
important than the views of the union?
Is it modest to delay important questions, such as voter
eligibility, until after the election?
Is it fair to provide to the union an employee's phone number, work
location, and email address, further subjecting workers to union
pressure and jeopardizing their privacy?
Is it fair to tell workers they may have as little as 10 days to
consider all of the ramifications of joining a union before they cast a
ballot in the election? These are the questions that lie at the heart
of the board's proposal and I believe they lead to a resounding and
I have in my hand a document released by the NRLB's General Counsel
titled, ``An Outline of Law and Procedure in Representation Cases.'' It
is broken down into 24 different sections and spans nearly 450 pages.
Keep in mind, this represents merely an ``outline'' of the legal morass
an employer confronts during a union election. It is a challenge for
any large business with a team of skilled attorneys on staff, let alone
the small employer who lacks the legal knowledge and resources
necessary to navigate the complexities of federal labor law. Forcing
employers and workers to grapple with the full consequences of all this
in as little as 10 days will undermine an employer's ability to
communicate with their employees and cripple a worker's ability to make
a fully informed decision.
I am confident we will hear our friends on the other side of the
aisle criticize today's hearing. It is certainly their right to do so.
However, we all have a responsibility to oversee the board's activities
and ensure it is working for the best interests of all workers. The
board's recent proposal is part of an ongoing effort to promote a
culture of union favoritism that is creating greater uncertainty among
America's job creators. We cannot sit by and become willing accomplices
in the NLRB's job-destroying agenda. I look forward to hearing from our
witnesses today, and with that, I will now recognize Mr. Miller, the
senior Democrat of the committee, for his opening remarks.
Mr. Miller. Thank you, Mr. Chairman.
Today's hearing is about an NLRB proposal for a fair
workplace election process. You are right. The proposal is a
modest one. It closes a few loopholes that have allowed some
parties to either unnecessarily delay elections or undermine
them entirely, and it brings some procedures into the 21st
Before this hearing gets into attacks against workers and
their unions, we should examine why this proposal is needed.
Many union elections are uncontested. However, current rules
provide multiple opportunities for bad actors to purposely
delay and stop an election.
These delays intensify workplace conflict. They provide
opportunities for unfair labor practices, like threatening to
fire workers in order to undermine workers' freedom of choice.
The proposal would simply reduce these opportunities for delay
by modernizing procedures, increasing transparency, and
reducing wasteful litigation.
Specifically, the rule allows parties to file petitions and
other documents electronically. Imagine that. Americans can
file their tax returns electronically. They email their elected
representatives in an instant. With electronic filing, the NLRB
should at least be allowed to the late 20th century.
The rule would also insure a timely exchange of information
so that all parties understand the process and are able to
resolve any issues early on. It would reduce unscrupulous
employer's ability to delay elections just for the sake of
delay. Finally, it would provide a more timely delivery of
voter lists, as well as phone numbers and emails.
All of these improvements are modest, but very important.
The rule does not change the wildly unfair imbalance of
employee access. A union might get a number and an email
address a few days before the election under this new rule, but
access to workers will otherwise remain slanted in favor of the
Unions have a very restricted access to workers. They are
not entitled to enter the property where workers assemble every
day, the workplace. And workers themselves continue to be
restricted to campaigning in non-work times and non-work areas.
Meanwhile, the employers still have complete access to their
They can campaign 24 hours a day, on work time in work
areas. They can conduct captive audience meetings with the
workers. They can legally fire workers for not attending these
meetings. In reality, the anti-union campaign does not start on
the date of the election petition.
It often starts from the date of hire, when employees'
handbooks and orientation videos urge a union-free workplace.
None of this is changed by the proposed rule. Nothing in this
proposal affects what employees can do and say to workers, or
when they can do that.
And nothing in this proposal changes the election itself.
What the proposal does is down the ability of those who simply
want to derail the election. Let us not kid ourselves. The
claim this proposal will result in management's inability to
make their case for workers is almost laughable to anybody who
is familiar with this process.
What critics are really saying is that this proposal takes
away the long-time union-busting tactic of using frivolous
litigation and delaying an election for months and even for
years. It is a union-busting first principle that the longer
you can drag it out, the more successful you will be in denying
the union the election. As they put in their handbooks, ``The
time is on your side.''
With delay, you wear down the workers with fear and
intimidation, and you show them how futile their efforts are.
Every move gets tied up in litigation and forces them to give
up. The proposal limits that weapon. No more delay for the sake
Let us be frank. A great deal of money is made in making a
proposal like this one controversial. Making this controversial
by the same union-busting consultants and law firms that take
millions of dollars from businesses so that they can show them
how to destroy the election process and keep their business
union-free by frightening their employers into fearing the
changes that might come about.
Today's hearing speaks to the power of the special
interest. Any proposal for slight improvement in workers'
rights will result in a public outcry and partisan hearings.
Letting workers vote when they ask to vote should be a no-
brainer. If workers want an election, they should get an
They should not be met with fear, intimidation, firings,
and delay for the sake of delay. And I look forward to today's
witnesses' testimony. Thank you.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
Today's hearing is about an NLRB proposal for a fairer workplace
The proposal is a modest one. It closes a few loopholes that have
allowed some parties to either unnecessarily delay elections or
undermine them entirely. And it brings some procedures into the 21st
Before the hearing gets into attacks against workers and their
unions, we should examine why this proposal was needed. Many union
elections are uncontested. However, current rules provide multiple
opportunities for bad actors to purposefully delay or stop an election.
These delays intensify workplace conflict. They provide
opportunities for unfair labor practices, like threatening or firing
workers, in order to undermine workers' freedom of choice. The proposal
would simply reduce these opportunities for delay by modernizing
procedures, increasing transparency and reducing wasteful litigation.
Specifically, the rule allows parties to file petitions and other
documents electronically. Americans can file their tax returns
electronically and email their elected representatives in an instant.
With electronic filing, the NLRB should at least be allowed to join the
late 20th century.
The rule would also ensure the timely exchange of information so
that all parties understand the process and are able to resolve any
issues early on. It would reduce unscrupulous employers' ability to
delay elections just for the sake of delay. Finally, it would provide
for a more timely delivery of voter lists as well as their phone
numbers and emails.
All of these improvements are modest.
The rule does not change the wildly unfair imbalance in employee
access. A union might get a phone number and an email address a few
days before the election under this new rule. But access to workers
will otherwise remain slanted in favor of employers.
Unions have very restricted access to workers. They are not
entitled to enter the property where workers assemble every day: the
workplace. And workers themselves continue to be restricted to
campaigning at non-work times in non-work areas.
Meanwhile, employers still have complete access to their employees.
They can campaign 24 hours a day, on work time, in work areas. They can
conduct captive audience meetings with workers. And, they can legally
fire workers for not attending these meetings.
In reality, the anti-union campaign does not start on the date of
the election petition. It often starts from the date of hire, with
employee handbooks and orientation videos urging a ``unionfree
None of this is changed by the proposed rule. Nothing in this
proposal affects what employers can say to a worker or when. And
nothing in this proposal changes the election itself. But what the
proposal does begin to do is drawn down the ability of those who simply
want to derail an election.
Let's not kid ourselves: The claim that this proposal will result
in management's inability to make their case to workers is laughable.
What critics are really saying is this: This proposal takes away a
long-time unionbusting tactic--using frivolous litigation to delay an
election for months and even years.
It's a unionbuster's first principle: time is on your side. With
delay, you wear down workers with fear and intimidation, show them how
futile their efforts are as every move gets tied up in litigation, and
force them to give up.
This proposal limits that weapon. No more delay for delay's sake.
Let's be frank. A great deal of money is made by making a proposal
like this one controversial. And a great deal of money is made by
frightening employers into fearing these changes.
Today's hearing speaks to the power of the special interests: Any
proposal for a slight improvement in workers' rights will result in
public outcry and partisan hearings.
Letting workers vote when they ask for a vote should be a no-
brainer. If workers want an election, they should get an election. They
shouldn't be met with fear, intimidation or delay for the sake of
I look forward to the witnesses' testimony.
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. And without objection, the hearing record will
remain open for 14 days to allow statements, question for the
record, and other extraneous material referenced during the
hearing to be submitted in the official hearing record.
[The statement of Mr. McKeon follows:]
Prepared Statement of Hon. Howard P. ``Buck'' McKeon, a Representative
in Congress From the State of California
Thank you Mr. Chairman for holding this important hearing on the
National Labor Relation Board's (NLRB) proposed rule that will rush
union elections at the expense of the nation's employers. The proposed
rule would substantially shorten the time between the filing of the
petition and the election date, and would substantially limit the
opportunity for full evidentiary hearing or Board resolution of
contested issues, including appropriate bargaining unit, voter
eligibility, and election misconduct.
Tampering with representation elections in the workplace is not
just bad policy, it is foolish policy. The NLRB is demonstrating to
American business-owners that they are uninterested in fair elections
with due time to communicate with their employees. Rather than allow an
employer to make their case against unionization, the NLRB would rather
have them bogged down in 146 pages of onerous regulations. Most small
businesses do not employ in-house counsel, and will have the added
burden of hiring attorneys in a short period of time in order to comply
with the new election rules. There is simply no justifiable reason for
this regulation. As Board Member Brian Hayes noted in his dissent to
the proposed rule, ``by administrative fiat, in lieu of Congressional
action, the Board will impose organized labor's much sought-after
``quickie election'' option, a procedure under which elections will be
held in 10 to 21 days from the filing of the petition. Make no mistake,
the principal purpose for 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
Lest we forget, unions do not create jobs; employers do. In this
economic environment, where millions of Americans are looking for work,
employers should not have to fear more government regulation that will
cost them time and resources to sort through and comply with. At a time
of 9.2% unemployment, with 14.1 million Americans looking for work, the
federal government should be finding ways to remove barriers to job
growth, so employers are free to hire employees without fear of federal
This is yet another regulation in a long line of executive branch
overreach into the private sector. From the student loan business, to
housing and banking, and to our nation's healthcare system, the Obama
Administration has made it clear that moving forward a liberal agenda
is more important than the well-being of the American people and the
American economy. This regulation not only limits an employer's free
speech, but it fundamentally challenges an employee's freedom to
choose. I vigorously oppose this regulation and strongly urge the NLRB
to reconsider their proposal.
Chairman Kline. It is now my pleasure to introduce our
distinguished panel of witnesses. Mr. Peter Schaumber was a
member of the National Labor Relations Board from December 2002
to August 2010, and chairman from 2008 until January 20, 2009.
He began his career as an assistant corporation counsel for the
District of Columbia.
Later, Chairman Schaumber served as assistant United States
attorney for the District of Columbia. He taught as an adjunct
professor at the National Law Center of George Washington
University and Georgetown University School of Business. He
graduated from Georgetown University, and received his J.D.
from Georgetown University Law Center. Welcome.
Mr. Larry Getts is a tube press technician for the Dana
Corporation. In 2007, the United Auto Workers attempted to
unionize the Dana Corporation. Mr. Getts successfully led the
decertification of UAW after Dana voluntarily recognized the
UAW following a card check campaign.
Mr. Kenneth Dau-Schmidt is a professor of labor and
employee law at Indiana University. He has authored six books
and numerous articles on labor and employment law and the
economic analysis of law. He received his B.A. in economics and
political science from the University of Wisconsin, M.A. in
economics from the University of Michigan, J.D. for the
University of Michigan, and PhD in economics from the
University of Michigan. Welcome, doctor.
Now I would like to turn to my colleague from Wisconsin,
Mr. Petri, to introduce our next witness.
Mr. Petri. Mr. Chairman, thank you very much for extending
me the courtesy of recognizing a gentleman who is not actually
a constituent, but whose company certainly is, and very active
in northeast Wisconsin, John Carew, who is on the panel, is
president of Carew Concrete & Supply Company, which was started
some 35 years ago.
It is a ready mix concrete company that operates 14 plants
in 13 northeast and central Wisconsin cities. And during the
construction season, at least if we have a normal construction
season, employs about 170 people and operates a fleet of some
150 vehicles. He will be testifying both on behalf of himself
and on behalf of the National Ready Mixed Concrete Association.
Chairman Kline. Thank you, Mr. Petri. And welcome, Mr.
Our final witness is Mr. Michael J. Lotito. He is a partner
at Jackson Lewis. He practices all aspects of traditional labor
relations. He has written extensively on numerous labor and
employment issues, including the Employee Free Choice Act and
the Americans with Disabilities Act. He received his B.S. and
J.D. from Villanova University.
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 there is 1 minute
left it will turn yellow. And when your time is expired, the
light will turn red and I would ask you to wrap up your
testimony at that time.
After everyone has testified, members will each 5 minutes
to ask questions of the panel. Okay, we are ready.
Let me recognize Chairman Schaumber. You are recognized for
5 minutes, sir.
STATEMENT OF PETER C. SCHAUMBER,
FORMER NLRB MEMBER
Mr. Schaumber. Got it? Thanks.
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 here today.
Chairman Kline, I particularly want to thank you for your
continued oversight of the National Labor Relations Board. At a
time of economic anxiety, actions and decisions of Executive
Branch agencies such as the NLRB impact on whether the country
has a legal and regulatory climate conducive to business
development and job creation.
Only 6 weeks ago I was in Canada, speaking to a group of 60
business people from some of Canada's largest companies. A few
with whom I had an opportunity to speak afterwards expressed
real concern about doing business in the United States as a
result of the agency's complaint against the Boeing company.
Unfortunately, the Boeing complaint is only emblematic of
the agency's actions. And your committee's continued oversight
will allow it to evaluate this agency's actions and consider
appropriate legislative responses. As you know, I had the honor
and privilege of serving on the board from December 2002 until
I had the added honor and responsibility of being its
chairman for a period of time. For 28 months, the board's
current chairman, Wilma Liebman and I were a two-member board.
We were widely commended by both union-and management-side
labor law bars for our ability to work together collegially
despite our ideological differences, and to reach agreement on
90 percent of the cases brought to us for decision.
Although I have strongly criticized recent board actions,
and I will do so here today, I respect Chairman Liebman's
intellect, her passion for labor law, and her commitment to
public service. And I value my experience working with her for
The Wagner Act was substantially amended in 1947 by the
Taft-Hartley Act, which expanded the Wagner Act's notions of
collective action with broader notions of workplace democracy,
volunteerism and neutrality. For example, the Taft-Hartley Act
expressly gave workers the right to refrain from union and
other concerted activity.
And an employer's First Amendment right was protected to
non-coercively its opposition to unionization. Archibald Cox,
the preeminent labor law scholar observed that the Taft-Hartley
Act, quote--``represented a fundamental change in philosophy
with rejects outright the policy of encouraging collective
To the extent that Professor Cox viewed the Taft-Hartley
Act as requiring the board to maintain complete equipoise on
questions of union representation, he was absolutely correct.
As the Supreme Court said, quote--``The act is wholly neutral
when it comes to the basic choice of union representation.''
Unfortunately, the current board consistently demonstrates
that it is not neutral on this question of unionization. Its
animating concern is the loss of union density in the private
sector. It takes refuge in the language from the act's
preamble, quote--``to encourage the practice and procedure of
collective bargaining, to issue decisions and take actions that
serve the interests of organized labors, but which trumps
specific provisions of the act, including the Taft-Hartley
Act's provisions and the individual rights set forth therein.''
Since the majority was formed in April of last year, the
board has limited speech by giving partial effect to New York
State neutrality statute. It has increased the ability of
unions to engage in coercive, sedentary activity. It has
reached out and issued unprecedented requests for amicus briefs
as precursors to stripping employees (sic) of their right to
challenge their employees' recognition of a union by card check
through a secret ballot election.
And one requested, and is suggesting that it is considering
as presumptively appropriate, the creation of microunits of any
two or more persons doing the same job in the same location.
This threatens to Balkanize the workplace and increase work
stoppages by a tiny group of employees going out on strike and
holding the employer a hostage to their demands.
And now we have the majority's proposed rule, crafted in
isolation by the board majority, to drastically shorten the
time for board's election. It is a startling display of the
current board's activism on an outcome long favored by
organized labor. The major revisions the majority has proposed
change an elegant and uncomplicated procedure developed over
many decades for one that will deprive employers of a
meaningful opportunity to express its views on unionization,
workers the opportunity to make an informed choice, and
employers--particularly small employers--the right for legal
representation and due process.
And these revisions, in my view, will undermine workers'
and the public's trust in the integrity of board elections.
That complete my opening statement. I would be pleased to
answer your questions. Thank you very much.
[The statement of Mr. Schaumber follows:]
Prepared Statement of Peter C. Schaumber, Former Chairman,
National Labor Relations Board
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, my name is Peter Schaumber. I am a former
chairman and Board member of the National Labor Relations Board (NLRB).
I was nominated by President George W. Bush and confirmed by the United
States Senate for two terms on the Board beginning in December 2002 and
ending in August 2010.
I began my legal career in government service as an Assistant
United States Attorney for the District of Columbia and Associate
Director of a Law Department Division of the Office of the Comptroller
of the Currency. I subsequently entered private law practice in
Washington, DC, where I was director of my firm's litigation
department. Before my appointment to the NLRB, I served as a neutral
and a labor arbitrator on a number of industry panels and through
national arbitration rosters.
I have been an adjunct professor at the National Law Center of
George Washington University and in Georgetown University's MBA
Program. I also taught arbitration practice to union advocates at the
George Meany Center for Labor Studies in Silver Spring, Maryland.
For 28 months, the Board's current chairman, Wilma Liebman, and I
were a two-member board. We were widely commended by both the union and
management labor law bars for our ability to work together collegially
despite our ideological differences and to reach agreement on 90% of
the cases brought to us for decision.\1\
In my testimony today, I will describe the growing politicization
of the Board, how it manifests itself in the decisions and actions of
the current Board majority, most recently in its proposed rule to
shorten the time from a petition to an election. The latter proposal
would drastically change many decades of Board election law and
procedure although there is no demonstrated need to do so and would
interfere with the fundamental rights of employers and employees under
I. Background to the Board's Newly Proposed ``Quickie Election'' Rule
One would normally commend an agency for undertaking a thorough
review of its election law and procedures and recommending revisions to
streamline the process. Such a commendation is out of place here.
The Board's proposed rule was developed by the majority in ``star
chamber'' fashion. This is now followed by an expedited comment period
and a hearing in Washington, D.C. twenty-eight days later during the
middle of the summer that will deprive the public and those who will be
most affected by the rule--particularly the tens of thousands of small
business owners and their employees across the nation who undoubtedly
remain unaware of the proposal's existence--of the time necessary to
study the proposal and consider attending the hearing or commenting on
the proposed rule.
Some of the proposal's less consequential changes are sensible
enough and worthy of adoption. But the majority has made no effort to
demonstrate the necessity for so substantially shortening the period of
time for a Board election. And the reasons it asserts for the drastic
changes in Board law and procedures it proposes are unpersuasive.
The proposed rule accomplishes its result principally in two ways:
by moving Board resolution of virtually all pre-election
issues from before the election to after--even though those issues can
affect an election's outcome
by limiting the opportunity for full evidentiary hearing
and Board review of contested issues
When put in context with other recent Board actions, it does not
require a fertile imagination to conclude that the purpose for this
radical manipulation of the Board's election process is to tilt the
process in favor of organized labor and, as described by dissenting
Board Member Brian Hayes: ``[T]o effectively eviscerate an employer's
legitimate opportunity to express its views about collective
The proposed rule demonstrates once again that the current Board
majority feels unconstrained by the limits of the law and its role
under the Act to be completely neutral on the question of unionization.
This is not a sudden phenomenon: it has developed over the last 30
years as a result of several factors--such as the decline of
unionization in the private sector, changes in the process for
selecting Board members, and the impact of the political response
chosen by organized labor to address its decline.
A. Unionization in the Private Sector Continues To Decline
Organized labor has made important contributions to the workplace
and to our country. However, union density in the private sector has
declined from 35% in the 1950s to less than 7% today, mirroring a
decline in most western democracies.\3\ Nevertheless, American unions
continue to represent roughly the same number represented in the
1950s--approximately 16 million workers.\4\
I maintain, as some others have argued, that the decline of
unionization in the private sector is the result of several social,
political, and economic factors, including:
the plethora of workplace legislation, both state and
federal, that has improved working conditions--which in no small part
was fought for by unions--but contribute to the view that unions are no
the decline in our country's manufacturing base, which
provided a fertile ground for unionization
the high-visibility failure of some unionized industries
the desire of many contemporary workers, particularly more
skilled workers, to have a cooperative relationship with their
employer, which is inconsistent with the predominant union model that
presupposes an antagonistic struggle between employees and
B. Changes in the Selection of Board Members and the Impact
of the Political Response Chosen by Organized Labor
to Address Its Decline
Congress carefully considered the qualifications it wanted for
members of the NLRB and explicitly rejected calls for a Board composed
of partisan representatives of management and labor. Instead, Congress
determined that the Board would function best if composed of
``impartial government employees.'' Now, most Board members are drawn
from union and management labor law backgrounds. Most came from private
law practice, but a few who worked for labor organizations were
nominated after serving what has been referred to as a ``period of
detoxification'' in government service.
The nomination of Craig Becker by President Obama broke with this
tradition. Member Becker, who was recess-appointed to the Board after
his nomination was filibustered in the Senate, is the first person to
be nominated for a full Board term to come directly from a union. In
fact, Mr. Becker comes from two of the nation's largest international
unions, the AFL-CIO and the Service Employees International Union.\6\
The move toward choosing appointees who previously represented one side
or the other has coincided with--and arguably helped cause--the delay
in filling vacancies on the Board and the packaging of Board nominees.
This delay is contrary to the statutory scheme that contemplated the
nomination and confirmation of one new Board member each year.
Some have cited these changes in the selection of members as
causing the instability in Board law when control of the Board moves
from one political party to the other. Although these changes have made
oscillations in board law possible, they are not, in my view, its
cause. Apart from the decline of unionization in the private sector,
which is the stage upon which this has been played out, the dramatic
changes in Board law and procedure we are witnessing today stems from:
the decision of organized labor to use the political
process to arrest that decline
the concomitant publically expressed expectation of
organized labor that Democrats on the Board are there to serve its
These factors have worked to undermine Board neutrality and bring
us to where we are today.
C. The Board's Proper Role Under the Act
The Wagner Act was not the last word on these issues: Congress has
amended the Act three times. As the law has changed, the role of the
Board has also evolved. The most significant amendment was the Taft-
Hartley Act of 1947, which moved the Wagner Act into the mainstream of
American political thought. It expanded the Wagner Act's notions of
collective action with the broader notions of workplace democracy and
neutrality. For example, the Taft-Hartley Act gave workers the right to
refrain from union and other concerted activity and protected an
employer's First Amendment right to non-coercively express its
opposition to unionization.
The amended Act and the court decisions interpreting it reflect an
evolving view of the role of the Board. Originally, the role was to
maintain a singular focus on promoting collective bargaining; today,
the Board's role is to balance and accommodate competing, conflicting
interests. Archibald Cox, the pre-eminent labor law scholar, observed
that the Taft-Hartley Act ``represent[ed] a fundamental change in
philosophy, which rejects outright the policy of encouraging collective
bargaining.'' The amended Act and the court decisions interpreting it
reflect an evolving view of the role of the Board. Originally, the role
was to maintain a singular focus on promoting collective bargaining;
today, the Board's role is to balance and accommodate competing,
conflicting interests. Archibald Cox, the pre-eminent labor law
scholar, observed that the Taft-Hartley Act ``represent[ed] a
fundamental change in philosophy, which rejects outright the policy of
encouraging collective bargaining.'' The amended Act and the court
decisions interpreting it reflect an evolving view of the role of the
Board. Originally, the role was to maintain a singular focus on
promoting collective bargaining; today, the Board's role is to balance
and accommodate competing, conflicting interests. Archibald Cox, the
pre-eminent labor law scholar, observed that the Taft-Hartley Act
``represent[ed] a fundamental change in philosophy, which rejects
outright the policy of encouraging collective bargaining.'' \8\
Thus, as result of these amendments to the original Act, the
Board's role of promoting collective bargaining begins after employees
have made a free and informed choice for unionization as the means to
improve their terms and conditions of employment.
D. The Current Board's Consistent Demonstration of
Partiality on the Question of Unionization
In my view, the current Board consistently demonstrates that it is
not neutral on the question of unionization. Rather, its majority
members appear to remain mired in a period when the Wagner Act reigned
supreme, when unions had rights but no obligations, when employers did
not have the right to non-coercively express their opposition to
unionization, and when employees had no express right to refrain.
The majority's animating concern is the loss of union density in
the private sector. It takes refuge in the language from the Act's
preamble ``to encourage the practice and procedure of collective
bargaining'' to issue decisions and take actions that trump specific
provisions of the Act, including the Taft-Hartley Act and the
individual rights set out therein. The following are recent examples:
Limiting employer speech. The new Board majority moved
quickly to limit an employer's ability to engage in non-coercive speech
Stripping employees of the right to a secret ballot. In
response to the increasing use by unions of an employer's voluntary
recognition based on a card check (often after a corporate campaign)
and recognizing that the secret ballot election is the most reliable
indicator of employee free choice, in September 2007, the Board made an
incremental change in Board law.\10\ The Board modified its bar to
election petitions following a voluntary recognition to give employees
or a rival union a 45-day window within which to challenge the
recognized union's majority status with a secret ballot election
provided the petition is supported by an adequate showing of interest
(supported by 30% of employees).
Within a few months of forming a majority, the current Board
granted requests for review that sought to reverse this Board law and
issued an unprecedented request for briefing. The Board found that the
petitioners raised ``compelling circumstances'' warranting review
despite the fact that the only reasons offered by the petitioners were
the same reasons that were asserted and found insufficient by the prior
Expanding the ability of unions to engage in coercive
secondary activity inconsistent with the plain language of the Act. The
Board overturned decades of Board law defining unlawful secondary
picketing, even though this precedent was consistently affirmed by the
U.S. Supreme Court and the Federal circuit courts.\13\ In addition, the
Act requires no proof of actual or potential loss. It proscribes
conduct that ``threatens, coerces, or restrains'' for a secondary
object. The majority, however, ruled that absent traditional
picketing--carrying signs on pickets and moving in a circular
ambulatory fashion--the Board will find a violation only if the union
engages in conduct that ``directly caused or could reasonably be
expected to directly cause, disruption of the secondary's operation.''
Authorizing premature law suits against two states for
constitutional amendments that guarantee the secret ballot election.
The same Board that gave partial effect to a New York state neutrality
statute in Independence Residences, see fn 7, authorized premature
lawsuits against Arizona and South Dakota for state constitutional
amendments that appear to do no more than the Act: guarantee the secret
ballot election. The Act recognizes the secret ballot election as the
preferred method for determining employee free choice and guarantees
it. An employer need not recognize a union based on a card check. It
may insist on a secret ballot election. Similarly, under current law,
employees can challenge their employer's recognition of a union based
on card check.\14\
Re-defining an ``appropriate bargaining unit.'' The Board
has invited amicus briefs on whether it should change decades of Board
law as to what is an appropriate bargaining unit. The request was made
in a case that never raised the issue.\15\ Under longstanding Board
law, a unit can be all the employees of the employer or something less,
but the Board is considering adopting as presumptively appropriate a
unit of two or more persons doing the same job in the same location.
Such a change would make it easier for a union to gain access to a non-
union employer: it is easier to organize 2 to 5 employees than it is 20
to 30. However, it is inconsistent with the right of workers to have a
bargaining unit with sufficient collective strength to effectively
negotiate with their employer; moreover, it threatens a proliferation
of units and the balkanization of the workplace that will be
detrimental to workers and dramatically increase a business's labor
And now, we have the majority's proposed rule to dramatically
shorten the time for Board elections as its most recent demonstration
of partiality on the question of unionization. It is a startling
display of the current Board's activism on an outcome long favored by
organized labor. Consider this: the proposal was put forth on the
majority's own initiative citing unreasonable delay but without
defining what constitutes ``delay'' and without analyzing the very
small number of representation cases in which such delay has occurred
and the causes for it. Dissenting Board Member Brian Hayes observed:
``[T]he majority makes no effort whatsoever to identify the
specific causes of delay in those cases that were unreasonably delayed.
Without knowing which cases they were, I cannot myself state with
certainty what caused the delay in each instance, but I can say based
on my experience during my tenure as Board member that vacancies or
partisan shifts in Board membership and the inability of the Board
itself to deal promptly with complex legal and factual issues have
delayed final resolution far more often than any systemic procedural
problems or obstructionist legal tactics.'' \16\
A brief overview of the Board's current election practices and
procedures and the agency's timeliness in processing election cases
demonstrates that there was little need for the sweeping changes the
majority proposes. And the isolated manner in which the proposed rule
was crafted further detracts from its legitimacy.
E. Current Board Election Practice and Procedure
Two principal time periods are involved in the Board's
representation (election) case process:
Pre-election: the time from the filing of a petition to
the election. Pre-election procedural and legal issues are resolved
either by agreement or by a decision of the Regional Director and then
Overall: the time from filing the petition to the
completion of the representation case. Challenges and objections to the
election are considered by the Region and then the Board.
During the pre-election period, current Board practice encourages
the informal resolution of pre-election issues--including the time and
place for holding the election, the form of the balloting, whether the
unit sought is appropriate, unit placement, voter eligibility, and
exclusion. After the petition is filed, a hearing is promptly
scheduled; in 86% to 92% of all cases, elections proceed by agreement
of the parties without the need for a hearing.
Under current Board procedures, pre-election issues that are not
resolved by agreement of the parties are heard by a designated hearing
officer agent and then decided by a Regional Director, who issues a
decision after the hearing. The Board's ``best practices'' contemplate
that hearings will commence between the 10th and 14th day.\17\ The
hearing may take place on several consecutive days on any of the pre-
election issues, such as jurisdiction, representation showing, a
question concerning representation (e.g. contract bar), unit
composition and unit scope. The Regional Director either dismisses the
election petition or proceeds with a Decision and Direction of Election
directing an election for approximately three to four
The pre-election hearing is not adversarial. Its purpose is to
enable the hearing officer, who is an agent of the Board, to identify
the issues with the assistance of the parties and develop a full record
so they may be decided by the Regional Director consistent with Board
``The hearing officer is an agent of the Board who has an
affirmative obligation to develop a full and complete record and may,
if necessary to achieve this purpose, call and question witnesses,
cross-examine, and require the introduction of all relevant documents.
See Mariah, Inc., 322 NLRB 586 n. 1 (1996). Once on notice of a
substantial issue, the hearing officer is obliged to conduct inquiry.
Pontiac Osteopathic Hospital, 327 NLRB 1172 (1999). The hearing officer
is, of course, required to be impartial rulings and in conduct.'' An
Outline of Law and Procedure in Representation Cases, Section 3-820
Hearing Officer's Responsibilities.\19\
The agency conducts the vast majority of its elections in a
remarkably timely fashion. The median time for conducting initial Board
elections in Fiscal Year 2010 was 38 days; for all elections, it was 31
days; and 95% of all elections are held within 2 months. Based on my
experience, in a very small number of cases, elections have been
substantially delayed as the result of a union filing unfair labor
practice charges that block the election or for circumstances beyond
the control of the parties, such as delays by the Board in issuing a
II. Looking at the Proposed Rule and How It Was Crafted
The Board proposes to reduce the time for Board elections from the
current period of roughly 6 to 8 weeks to as little as 10 to 14
days.\20\ It achieves this result by substantially limiting the
opportunity for a full evidentiary hearing or Board review of contested
issues, by deferring resolution of most pre-election issues--some of
which can impact an election's outcome--to after the election and then
limiting the Board's standard of review. The process the Board proposes
tilts heavily against employers' rights to engage in legitimate free
speech, it threatens to deprive large numbers of employers of due
process and the right to petition the government for redress of
grievances. 21 It will deprive the Regional Director, the Board, and
reviewing courts of an adequate record upon which to base their
decisions. And at the end of the day, it is far from certain that these
proposed changes will reduce the time required to process
representation cases, which should be a primary goal of any electoral
reform. For these reasons, in my view, the proposed rule's principal
revisions are ill-conceived and misguided.
A. The Proposed Rule Was Crafted in Isolation without Input
from Key Agency Personnel or Public Discussion of
It is clear from the majority and dissenting opinions that the
Board majority crafted its proposed rule in isolation. The majority
appears to have assiduously avoided triggering the public meeting
requirement of the Government in the Sunshine Act, 5 U.S.C. 552 b. A
Board agenda with Republican Board Member, Brian Hayes, apparently was
never held.\22\ Under the Government in the Sunshine Act, such a
meeting would have required notice and been open to the public. The
majority members may have avoided deliberating among themselves because
that too would have required notice and an open meeting. Presumably,
the majority conducted deliberations through their staffs and in
meetings of only two majority members at a time, excluding the minority
The Board also excluded key agency personnel and outside labor law
practitioners whose views are routinely solicited by the Board when
considering changes in its rules of procedure. The majority side-
stepped the Board's Rules Revision Committee, a group of agency
officials responsible for recommending and considering proposed changes
in existing and proposed new rules. And the Board did not bring its
proposal to the attention of the Practice and Procedures Committee of
the American Bar Association, composed of experienced union-side and
management-side labor lawyers, which for many years has been consulted
on proposed changes in the Board's rules of practice and procedure. 23
The Board did not seek input from those who will be most affected
by the proposed rule before issuing the proposed rule, which is
contrary to President Obama's Executive Order 13563. Although the
Executive Order does not apply to independent agencies, the NLRB and
other agencies have been ``encouraged to give consideration to all of
its provisions, consistent with their legal authority.'' \24\
All this has now been followed with a notice and comment period
that meets the bare minimum requirements of the Administrative
Procedure Act. 5 U.S.C. Section 553 The public has been given 60 days
to comment; 14 days have been given for replies. A 2-day public hearing
is scheduled for July 18 and 19, just 27 days after notice of the
proposed rule was published in the Federal Register. On June 27, the
agency announced that registration for the meeting must be filed four
days later--by 4 p.m. on July 1. If an interested person wanted to make
an oral presentation, a brief outline of the presentation must be
submitted with the registration.
The manner in which the Board majority proceeded and its expedited
period for public comment gives little time for consideration and
comment by those most affected by the proposed rule. The dissenting
member understandably took strong issue with his colleagues:
``It is utterly beside the point, and should be of little comfort
to the majority, that its actions may be in technical compliance with
the requirements of the Administrative Procedure Act and other
regulations bearing on the rule-making process. President Obama's
Memorandum on Transparency and Open Government, issued on January 21,
2009, makes clear that independent agencies have an obligation to do
much more than provide minimum due process in order to ensure that our
regulatory actions implement the principles of transparency,
participation, and collaboration. As explained in the subsequent
directive from the Director of the Office of Management and Budget,
these principles form the cornerstone of an open government.
Sadly, my colleagues reduce that cornerstone to rubble by
proceeding with a rulemaking process that is opaque, exclusionary, and
adversarial. The sense of fait accompli is inescapable.'' \25\
B. The Proposed Rule Will Deprive Employees and Employers
of Fundamental Rights that Permit an Informed
Choice in a Board Election.
The proposed rule, if implemented, will deprive employers of a
meaningful opportunity to express their views on unionization, which is
protected under Section 8 (c) of the Act, and the employee's right
under Section 7 of the Act to hear his or her employer's views and to
make an informed choice. It will impermissibly limit the free and
robust debate on the issue of unionization that Congress sought to
ensure. As relied upon by Member Hayes in his dissent, the Supreme
Court said in Chamber of Commerce v. Brown, supra, 554 U.S. at 67-68:
``From one vantage, Sec. 8(c) `merely implements the First
Amendment,' NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S. Ct.
1918, 23 L.Ed.2d 547 (1969), in that it responded to particular
constitutional rulings of the NLRB. See S. Rep. No. 80-105, pt. 2, pp.
23-24 (1947). But its enactment also manifested a `congressional intent
to encourage free debate on issues dividing labor and management.' Linn
v. Plant Guard Workers, 383 U.S. 53, 62, 86 S. Ct. 657, 15 L.Ed.2d 582
(1966). It is indicative of how important Congress deemed such `free
debate' that Congress amended the NLRA rather than leaving to the
courts the task of correcting the NLRB's decisions on a case-by-case
basis. We have characterized this policy judgment, which suffuses the
NLRA as a whole, as `favoring uninhibited, robust, and wide-open debate
in labor disputes,' stressing that `freewheeling use of the written and
spoken word * * * has been expressly fostered by Congress and approved
by the NLRB.'' Letter Carriers v. Austin, 418 U.S. 264, 272-73, 94 S.
Ct. 2770, 41 L.Ed.2d 745 (1974).
The union will covertly collect employee signatures on
authorization cards\27\ for its petition without the employer's
knowledge. The predominant story that workers will hear before the
election will be the union story; unlike the employer, the union can
promise employees increased wages and benefits with few restraints
under the law. The employee may not be told that changes in the terms
and conditions of employment are the product of collective bargaining;
that wages and benefits may be the same, less or more. Nor is the
employee likely to hear that to be a member of the union the employee
will have to support the union's political and social agenda or that
the union may seek to further its own business during bargaining and
ask for a neutrality card check agreement. The employee may not have
been exposed to the experiences the union has had with other employers
and its impact on their profitability and competitive position in the
After achieving the requisite number of signatures, the union will
select the date and time for filing the petition, catching the employer
and unsolicited employees by surprise. The employer will have to
prepare for an adversarial proceeding, described below, only days away
and for an election as little as three or four days later. The employer
will have little opportunity to become informed about the union and the
issues involved, respond to union claims, and communicate with its
employees on the issue of unionization. Other employees who were
unaware of the union solicitations will find themselves in a similar
situation.\28\ They will not have enough time to clarify the facts,
openly debate the issues, hear from their employer, and effectively
express their concerns.
C. The Proposed Rule Replaces a Non-Adversarial Hearing
Focused on Developing a Full Record for a Limited
Adversarial Hearing with Formal Pleading
As mentioned above, under current Board procedures, in the
relatively small number of representation cases that require a hearing,
the hearing is non-adversarial. Its purpose is for the Board agent to
identify the issues with the assistance of the parties and impartially
develop a full record to enable the Regional Director to issue a
decision on the issues consistent with Board law.\29\ The Board agent
has the authority to subpoena witnesses and request documents. Prior to
the hearing, the only document to be produced is a questionnaire to be
completed by the employer confirming that it meets the Board's
statutory jurisdictional requirements.
The proposed rule changes all of this. It requires that the
employer file a detailed Statement of Position identifying the issues
it wants to raise. Those issues can include:
whether the employer is a religious organization exempt
from the Act's coverage
whether the petitioner is a labor organization
the appropriateness of the petitioned-for unit
exclusions from the petitioned-for unit
the existence of a bar to the election
If the employer contends the unit is inappropriate, it is required
to state the basis for its contention and to ``identify the most
similar unit it concedes is appropriate.''concedes is
appropriate.''concedes is appropriate.''concedes is
appropriate.''concedes is appropriate.''
These issues can be varied and complex, as the Board majority
readily concedes,\32\ requiring inquiry and consultation, hopefully
leading to a resolution in the pre-election process. But the proposed
rule gives little time for that process to play out, mandating a
hearing seven days from service of the petition and the Statement of
Position Form ``absent special circumstances.'' \33\
If the employer fails to raise an issue in its Statement of
Position, it forfeits its right to do so.
``No party would be permitted to offer evidence or cross-examine
witnesses concerning an issue it did not raise in its Statement of
Position or did not join in response to another party's Statement of
As to the hearing, the Board adopts for its model Rule 56 of the
Federal Rules of Civil Procedure and proposes that ``[t]he duty of the
hearing officers [under the proposed rule] is to create an evidentiary
record concerning only genuine issues of material facts.'' \35\ Those
are issues raised by the employer in its Statement of Position,
contested by the union and on which the employer has made a sufficient
offer of proof. As mentioned, under current Board procedures, the Board
hearing officer is charged with impartially developing the record on
the issues presented by the petition. Under the proposed rule, that
burden is shifted to the employer, as the non-petitioning party,
requiring that it make an offer of proof and thereafter introduce
evidence on the issues it has identified.
According to the Board majority:
``The proposed amendments would not prevent any party from
presenting evidence concerning any relevant issues if there is a
genuine dispute as to any material fact. In other words, the proposed
amendments would accord parties full due process of law consistent with
that accorded in federal courts.''
The Board majority's statement cannot be taken seriously. The Board
majority suggests cutting in half, if not further, the time for a
hearing and now shifting to the employer the obligation to identify the
issues and present evidence supporting its position in an adversarial
hearing.\36\ Although larger companies with in-house legal staffs may
be able to respond and protect their rights in that short time frame,
many of the Board's representation cases involve the employees of
smaller business owners who do not have legal counsel with traditional
labor law expertise or labor consultants readily available to them.
Many may not have heard of the National Labor Relations Board despite
the wide controversy over the agency's recent Boeing complaint.\37\ Few
will be familiar with the Board's arcane legal concepts such as
``appropriate unit,'' ``contract bar,'' or ``statutory supervisor.''
They are not likely to have the wherewithal to contact knowledgeable
labor counsel; even if they do, seven days is insufficient time to
locate, engage, and prepare counsel for an effective
The difficulty for employers timely securing knowledgeable counsel
will be compounded if the Department of Labor's proposed new
interpretation of the ``advice'' exemption of the Labor-Management
Reporting and Disclosure Act, 29 U.S.C. 433, takes effect. See ``Labor
Management Reporting and Disclosure Act; Interpretation of the
``Advice'' Exemption'' that issued in the Federal Register on June 21,
2011. Historically, legal advice given to an employer by its attorney
during a union organizing campaign has been treated as exempt from the
LMRDA. Under the Department's proposed re-interpretation many of these
legal services will be considered ``persuader activities.'' ``Under the
proposed interpretation, when such a person prepares or provides a
persuasive script, letter, videotape or other material or communication
* * * for use by an employer in communicating with employees, the
advice exemption does not apply and the duty to report is triggered.''
FR at p. 36. The regulations would apply to drafting or reviewing
written materials and speeches for legal sufficiency so as to avoid
unfair labor practices, as well as conducting supervisory training and
seminars regarding union organizing, collective bargaining and
converted activity, such as strikes. The current reporting requirement
as a result of performing persuader activities already requires
reporting not only by and for that particular client, but for all labor
relations services for all clients whether or not those services
involve persuader activities. Since this information is considered
subject to the attorney-client privilege, it is anticipated that many
attorneys will simply stop providing such advice. In sum, the new,
incredibly broad interpretation of reportable persuader activities
would eviscerate the current ``advice exemption'' and would further
chill employer free speech, thus preventing employees from receiving
needed information to make a fully informed decision regarding union
What will happen is exactly what Member Hayes predicted in his
dissent: ``The proposed rules, if implemented, will unconscionably and
impermissibly deprive these small business owners of legal
representation and due process.'' 39 If the Board's proposed rule is
implemented, this scenario will play out in countless workplaces across
the nation, and it will undermine public trust in the fairness of Board
elections. The majority's effort to draw support for its expedited
hearing procedures on the summary judgment procedures of Rule 56 of the
Federal Rules of Civil Procedure is decidedly unimpressive. Parties to
a civil lawsuit under the Federal Rules are given an opportunity to
develop their case and engage in discovery. Complaints are often
amended afterwards as issues reveal themselves. Motions for summary
judgment are generally filed after discovery is complete. If the non-
moving party has not had an opportunity for discovery, the court will
generally withhold ruling on the motion until its discovery is complete
and it has had an opportunity to file an opposition or a cross motion.
The situation encumbering an employer seven days after a union has
filed a petition is hardly analogous.
D. The Proposed Rule Will Unfairly Constrain Employers from
Exercising their Legal Right to Board Review
Under extant Board law, an employer's obligation to bargain with
the union attaches from the election date. As a result, an employer
acts at its peril if after an election and without bargaining with the
union it changes any terms or conditions of employment (``unilateral
changes''). If the Board ultimately certifies the union, the employer,
at the union's request, will be required to return those changed terms
and conditions to the original status quo ante.
Returning to the status quo ante can be costly and can undermine
the employer's competitiveness. Making changes in terms and conditions
of employment is part of an employer's normal business operations--for
example, making changes to retain employees who could be lured away by
a competitor's offer of higher wages or better benefits, making changes
to control rising health care costs, or making changes to respond to
market conditions that may require work reassignments and so forth.
The resolution of some pre-election issues will determine whether
an employer has a collective bargaining obligation at all. Thus the
proposed rule's shift from before to after the election of the
resolution of most pre-election issues unfairly burdens an employer. In
short, the employer might have to choose either to exercise its right
to Board review while it continues to conduct normal business
operations or to forego its right to Board review or its right to
conduct normal business operations.
E. The Proposed Rule Is Likely to Result in More Elections
The proposed rule, if implemented, is likely to result in an
increase in the number of elections being overturned after the results
have been announced, threatening to disrupt the workplace and waste the
Board's and parties' time and money.
Postponing resolution of some issues--such as whether there is a
bar to the election or whether the unit is appropriate--will increase
the likelihood of an election being set aside after Board review.
Up until the time I left the Board in August of 2010, the Board
followed a guideline generally putting an upper limit of 10% on the
number of employees who could vote under challenge.Up until the time I
left the Board in August of 2010, the Board followed a guideline
generally putting an upper limit of 10% on the number of employees who
could vote under challenge.Up until the time I left the Board in August
of 2010, the Board followed a guideline generally putting an upper
limit of 10% on the number of employees who could vote under
challenge.Up until the time I left the Board in August of 2010, the
Board followed a guideline generally putting an upper limit of 10% on
the number of employees who could vote under challenge.Up until the
time I left the Board in August of 2010, the Board followed a guideline
generally putting an upper limit of 10% on the number of employees who
could vote under challenge.
Furthermore, several courts of appeal have held that if a
sufficient number of challenges are sustained so that the modified
bargaining unit is fundamentally different from the bargaining unit
that was proposed, employees will have been denied their right to make
an informed choice, requiring a new election:
``Where employees are led to believe that they are voting on a
particular bargaining unit and the bargaining unit is subsequently
modified post-election, such that the bargaining units, as modified, is
fundamentally different in scope or character from the proposed
bargaining unit, the employees have effectively been denied the right
to make an informed choice in the representation election.'' NLRB v.
Beverly Health and Rehabilitation Service, Inc., No. 96-2195, 1997 WL
457524 at 4 (4th Cir. 1997)(citations omitted).
F. The Proposed Rule Inappropriately Narrows the Standard
of Board Review of Important Election Issues.
Currently, pre-election issues that are heard by a designated
hearing officer and decided by a Regional Director may be reviewed by
the Board on a request for review filed by either the union or the
employer. The Board's review is a summary one based on a review of the
requesting party's papers which is required to include a summary of all
evidence and rulings bearing on the issues.\42\ While an opposition may
be filed, the Board may rule on the request without awaiting an
opposition.\43\ The Board will grant review only for ``compelling
After the election, objections either to the conduct of the
election or to conduct affecting the results of the election as well as
challenges to outcome-determinative individual voters are heard and
decided at the regional level. Either party may file exceptions to the
region's decision with the Board which will consider the exceptions on
a de novo review of the record. If the exceptions are found to have
merit, the Board may overturn the election results and order a new
The proposed rule changes the Board's post-election scope of review
from an automatic de novo review upon the filing of exceptions to a
discretionary review based on ``compelling reasons.'' This is a
significant and unwise revision to long-standing Board practice and
According to the majority, it ``anticipates that the proposed
amendments would leave a higher percentage of final decisions about
disputes arising out of representation proceedings with the Board's
regional directors who are members of the career civil
service.''According to the majority, it ``anticipates that the proposed
amendments would leave a higher percentage of final decisions about
disputes arising out of representation proceedings with the Board's
regional directors who are members of the career civil
service.''According to the majority, it ``anticipates that the proposed
amendments would leave a higher percentage of final decisions about
disputes arising out of representation proceedings with the Board's
regional directors who are members of the career civil
service.''According to the majority, it ``anticipates that the proposed
amendments would leave a higher percentage of final decisions about
disputes arising out of representation proceedings with the Board's
regional directors who are members of the career civil
service.''According to the majority, it ``anticipates that the proposed
amendments would leave a higher percentage of final decisions about
disputes arising out of representation proceedings with the Board's
regional directors who are members of the career civil service.''
The Board does not explain the significance of its comment that it
anticipates a higher number of final decisions on election disputes
will be made by ``members of the career civil service.'' The concern of
some with such a proposed change will not be easily assuaged given the
fact that the highly controversial Boeing complaint was recently-filed
by a long-time member of the Board's career civil service.
The two principal functions of the National Labor Relations Board
are to enforce the unfair labor practice provisions of Section 8 of the
Act and to hold elections pursuant to Section 9 of the Act to determine
whether a majority of workers in an appropriate unit wish to be
represented by a labor organization. Board's elections have long been
considered its ``crown jewel.'' Section 3 (b) of the Act permits the
Board to delegate its authority to conduct elections to regional
directors but subject to subsequent Board review.
For decades pre-election issues heard and decided at the regional
level were subject to the Board's discretionary standard of review and
its summary process. The post-election issues that directly impact on
the results of the election and involve the integrity of the election
process itself--consideration of outcome-determinative challenges to
individual voters, as well as objections to the conduct of the election
and to conduct affecting the results of the election--were subject to
de novo review by the Board upon the filing of exceptions by either
party. The discretionary highly deferential standard of review and its
summary process that being proposed by the majority for all contested
election issues is inappropriate. The post-election issues currently
heard automatically on exceptions go to the heart of employees' right
under Section 7 of the Act to make a free and uncoerced choice for or
against unionization. Final agency decisions should not be entrusted to
``career civil servants'' but to presidential appointees who have been
entrusted with the agency's quasi-judicial functions.
A regional director's pre-election consideration of an eligibility
issue is less significant than when that same issue is presents itself
post-election. Regional directors defer consideration of eligibility
issues to post-election challenges because they raise difficult factual
or legal issues, the consideration of which may delay the election.
When they are subsequently considered post-election, their complexity
remains but they have added significance, only outcome-determinative
challenges are considered.
Objections over the conduct of an election are generally
investigated by a region that did not conduct the election. This avoids
a conflict with the region alleged to have been responsible for the
misconduct investigating itself. Nevertheless, the party that filed the
objection may be concerned that one ``career civil servant'' may not
want to offend another. Automatic de novo review by the Board
alleviates that fear and preserves public confidence in the integrity
of the election process.
Conduct affecting the results of an election--pre-election
misconduct by either the union, the employer or others, that can
reasonably be expected to have affected the election outcome--deprive
employees of the fundamental employee rights the Act granted, ``the
right to self-organization, to form, join, or assist a labor
organization * * * and * * * the right to refrain from any and all such
activity,'' see 29 U.S.C. Section 157, and intended the Board to
protect. If the party filing an exception from a Regional Director's
decision reasonably believes that the Regional Director erred, the
Board should not look for ``compelling reasons'' requiring its review,
it should automatically review such objections de novo.
Finally, the review of contested issues that was traditionally
considered post-election, on a discretionary request for review
standard with its summary procedures, is less-apt to be dissented to.
Such dissents are critical for a reviewing court less familiar with the
intricacies of Board law.
The above are my views on what I believe to be an increasing
politicization of the Board that began a few decades ago and the
reasons I attribute to it. Oscillating Board law and the public
perception that the Board members serve a constituency undermines the
Board's credibility and its effectiveness as an instrument of good
government. At a time of enormous economic anxiety, many of the Board's
recent actions and decisions reverse long-standing Board law and
procedures and destabilize, or threaten to destabilize, labor-
management relations. They can, and I believe will, impact on the
willingness of entrepreneurs and other businesses to ``make here what
they sell here.''
The Board's proposed rule to shorten the time for a Board election
proposes drastic changes in election law, practice and procedures that
have been in place and guided the parties for many decades. It will
take time for the thought, discussion and debate necessary to fully
consider all the elements of the proposed rule and flesh out their
implications. My comments are preliminary in that they reflect my
opposition to the principal provisions of the proposal. There are a
variety of other provisions, however, which I have not had an
opportunity to fully consider that raise concern, such as, the
elimination of a Regional Director's ability to transfer cases to the
board, the required disclosure of employees' personal e-mail addresses
and the requirement that pre-election hearings ``continue day to day
until completed absent extraordinary circumstances.'' \47\
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\ The Supreme Court ultimately found that a board of two persons
did not constitute a quorum under the Act. New Process Steel L.P. v.
NLRB, 560 U.S.___, 130 S. Ct. 2635 (2010).
\2\ See p. 45 of the Board's Notice of Proposed Rulemaking
(hereafter called ``Notice of Proposed Rulemaking'') that issued in the
Federal Register on June 22, 2011. I fully agree with the dissenting
opinion of Board Member Brian Hayes and respectfully refer members of
the committee to it.
\3\ See Jelle Visser, ``Union Membership Statistics in 24
Countries,'' Monthly Labor Review (Jan. 2006). The period for Board
elections in the 1950s was more than twice what it is today.
\4\ Bureau of Labor Statistics, Economic News Release, ``Union
Members Summary'' (January 21, 2011).
\5\ Some have argued that the decline of unionization in the
private sector is the result of unions not selling themselves
adequately to workers, and their failure to commit sufficient resources
to organizing activities. Studies show that the percentage of union
funds devoted to organizing shrank from 40% in the 1930s to 4% in the
1990s. See Peter Francia, The Future of Organized Labor in American
Politics (Columbia University Press, 2006); Bruce Nissen, Which
Direction for Organized Labor (Wayne State University Press, 1999).
\6\ I mean no disrespect to Board Member Becker with whom I worked
collegially for many months but his situation is different from that of
Michael Bartlett who came to the Board from the U.S. Chamber of
Commerce. Mr. Bartlett was nominated specifically to serve as a short-
term recess appointee pending the nomination and confirmation of five
new board members to serve full terms.
\7\ ``We are very close to the 60 votes we need. It [sic] we aren't
able to pass the Employee Free Choice Act, we will work with President
Obama and Vice President Biden and their appointees to the National
Labor Relations Board to change the rules governing forming a union
through administrative action. * * *'' (Stewart Acuff, ``Restoring the
Right to Form Unions and Bargain Collectively,'' The Huffington Post,
February 3, 2010).
\8\ Archibald Cox, ``Some Aspect of the Labor Management Relations
Act of 1947,'' 61 Harv. L. Rev. 1, 24 (1947).
\9\ Independence Residences, 355 NLRB No. 153 (2010) (Members
Schaumber and Hayes dissenting therein).
\10\ In Dana Corp, 351 NLRB 434 (2007)(Members Liebman and Walsh
dissenting therein), 50% of employees in one case and 35% in the other
filed petitions for an election within weeks of being notified of their
employers' voluntary recognition of a union by card check.
\11\ According to statistics provided by the Board's Office of the
General Counsel, as of April, 2011, roughly 25% of elections held in
response to employee decertification petitions resulted in the union's
claim of majority status being defeated.
\12\ Rite-Aid Store 6473--Lamons Gasket Co., 355 NLRB No. 157
(2010) (Members Schaumber and Hayes dissenting therein).
\13\ Carpenters local 1506 (Eliason & Kurth of Arizona, Inc), 355
NLRB No. 159 (2010). (Members Schaumber and Hayes dissenting therein).
\14\ Then-Board Member Liebman filed a dissent to the Board's
filing of an amicus brief in pending federal litigation that argued
that a California statute was pre-empted by the Act because it required
employer neutrality during a union organizing campaign. Chamber of
Commerce v. Lockyer et al, 225 F. Supp. 2d 1199 (D.C.Cal 2002). The
decision of the District Court finding the state statute pre-empted was
affirmed by the Supreme Court. Chamber of Commerce v. Brown, 554 U.S.
\15\ Specialty Healthcare and Rehabilitation Center of Mobile, 356
NLRB No. 56 (2010) (Member Hayes dissenting therein).
\16\ Notice of Proposed Rulemaking, Dissent at pp. 45-46.
\17\ ``Representation Cases Best Practices Report,'' Gen. Couns.
Mem. 98-1, at 2 (Jan. 26, 1998). weeks later.weeks later.weeks later.
\18\ When the Regional Director directs an election after a
hearing, the election normally should not be scheduled prior to the
25th nor later than the 30th day after issuance of the decision to
allow for the filing of requests for review with the Board. NLRB
Casehandling Manual, Section 11190-11209.
\19\ See also National Labor Relation Board's Rules and
Regulations, Section 102.66.
\20\ The 10 to 14 days' time is derived as follows: Consistent with
current practice and the proposed rule, a pre-election hearing will be
scheduled for seven days following the date the petition is filed.
Absent an election agreement, after a one day hearing, the employer is
given two days to provide the union with an Excelsior List of
employees. A Final Notice of Election must be posted for at least two
work days prior to the election. Although the union must have the
Excelsior List for at least ten days before the election, the union can
waive that requirement.
\21\ Notice of Proposed Rulemaking, Dissent at p. 49.
\22\ Notice of Proposed Rulemaking, Dissent at p. 43-44.
\24\ See May 23, 2011, letter from Board Executive Secretary
submitting the Board's Preliminary Plan to Review Significant
Regulations to the OMB Office of Information and Regulatory Affairs in
response to Section 6 of Executive Order 13563, available at http://
\25\ Notice of Proposed Rulemaking, Dissent at p. 44.
\26\ Canadian law provides for elections in five to ten days. It is
often relied upon by proponents of ``quickie elections'' in the United
States. Canadian law, however, does not implicate the Canadian
Constitution as the NLRA implicates the U. S. Constitution. And it can
prove problematical to import one element of another country's labor
relations law without considering all of its constituent parts.
\27\ An authorization card is a form signed by an employee that
typically designates a union as the employee's bargaining agent. If
signed by at least 30% of employees, the union can use the
authorization cards to file a petition for an election. If signed by
over 50% of the employees, the union may use the cards to demand
recognition by the employer. The employer does not have to recognize
the union: it may, at its option, file for a secret ballot election or
wait for the union to do so.
\28\ The proposed rules apply to all petitions for an election,
including decertification petitions and petitions filed by rival
unions. Since the vast majority of election petitions are filed by a
union seeking to organize a unit of an employer's employees, however,
and those petitions are the focus for my comments, I refer only to
\29\ Sec. 101.20 (c) of the Board's Statement of Procedures
provides in pertinent part: ``The hearing, which is nonadversary in
character, is part of the investigation in which the primary interest
of the Board's agents is to insure that the record contains as full a
statement of the pertinent facts as may be necessary for determination
of the case.''
\30\ Notice of Proposed Rulemaking at p. 25.
\32\ Notice of Proposed Rulemaking at p. 15.
\33\ The Regional Director may require its completion at some time
before the hearing. Notice of Proposed Rulemaking at p. 25.
\34\ Notice of Proposed Rulemaking at p. 28. However, the hearing
officer has the discretion to permit a party to amend the Statement of
Position for good cause, such as newly discovered evidence, and during
the election a party can challenge the eligibility or inclusion of a
voter even if not raised in the Statement of Position.
\35\ Notice of Proposed Rulemaking at p. 27.
\36\ This can inure to the detriment not only of the employer but
the employees and the union as well. No longer will there be an
obligation on the part of the hearing officer to make sure that the
record is fully developed for the Regional Director and ultimately the
Board to decide the issues involved consistent with Board law. Thus,
for example, the employer may claim that a lead person is ineligible to
vote because he or she is a supervisor, but a fully developed record
would show otherwise.
\37\ The Boeing complaint alleges that the Boeing Company's opening
of a new second production line in South Carolina for its highly
successful 787 Dreamliner aircraft was retaliatory and seeks a Board
order requiring Boeing to produce all of its 787 aircraft at its
unionized facilities in Washington state. The Acting General Counsel
relies on statements made by some senior Boeing executives that one of
the reasons it opened a second production line in South Carolina was to
avoid the economic consequences of future strikes. Although the work in
South Carolina is new work, not unit work, and Boeing's collective
bargaining agreement permitted Boeing to choose the location for the
production of its aircraft, the Acting General Counsel nevertheless
claims Boeing could not do it for ``retaliatory'' reasons. The
complaint is unprecedented and inconsistent with controlling law.
\38\ In the absence of legal counsel, small business owners may
engage in unintentional, innocent, unfair labor practices. Few people
would suspect that it is a violation of law to ask a long-term employee
with whom you have a relationship whether he or she supports the union
and the reasons why. The union could use such innocent unfair labor
practices to extract concessions from the employer concerned the union
may file charges with the Board.
\39\ Notice of Proposed Rulemaking, Dissent at p. 48.
\40\ In its Notice of Proposed Rulemaking, the Board majority cites
Northeast Iowa Telephone, 341 NLRB 670, 671 (2004), for the proposition
that ``[t]he Board has permitted regional directors to defer resolution
of the eligibility of an even higher percentage of potential voters.''
Notice of Proposed Rulemaking at p. 53. The majority's description of
Northeast Iowa Telephone is far off the mark. That case was unique and
does not represent the norm as the Board majority (then Member Liebman
and former Member Dennis Walsh) took great pains to explain. The case
involved a unit of eight workers, including two managers who the
employer claimed were statutory supervisors. The Regional Director
permitted the managers to vote under challenge finding the ``record
inclusive.'' The employer sought review asking that the hearing be re-
opened because the Regional Director scheduled the hearing when one of
the two managers was recuperating from surgery and unable to testify.
Over the dissent of former Chairman Robert Battista, the Board majority
voted to deny review. They faulted the employer for not filing a
special appeal to the Board to reschedule the hearing and held that in
light of that failure and ``given the case's present posture''--which
would have required setting the election aside, reopening the record
and ordering a new election--``resolution of the supervisory issue
through the challenge procedure is the best use of the Board's limited
resources.'' The majority concluded that it recognized ``allowing 25
percent of the electorate to vote subject to challenge is not
optimal.'' 341 NLRB at p. 671.
\41\ The Board majority interprets the Act's pre-election hearing
requirement; see Section 9 (c) (1), as limited to ``questions of
representation.'' Such an interpretation fights with decades of Board
law that until the majority's Notice considered an ``appropriate
hearing'' under the Act one that required consideration of all election
issues and a record developed by an impartial agent of the Board.
\42\ ``Any request for review must be a self-contained document
enabling the Board to rule on the basis of its contents without the
necessity or recourse to the record; however, the Board may, in its
discretion, examine the record in evaluating the request. * * * [S]aid
request must contain a summary of all evidence or rulings bearing on
the issue together with page citations form the transcript and a
summary of argument. But such request may not raise any issue or allege
any facts not timely presented to the regional director.'' See Notice
of Proposed Rulemaking at p. 73.
\44\ See Notice of Proposed Rulemaking at p. 72, National Labor
Relations Board, Rules and Regulations, Section 102.67 (c).
\45\ Notice of Proposed Rulemaking at p.37.
\46\ Notice of Proposed Rulemaking at p.37, n. 56.
\47\ Notice of Proposed Rulemaking at p. 27.
Chairman Kline. Thank you, sir.
Mr. Getts, you are recognized.
STATEMENT OF LARRY GETTS, TUBE PRESS TECHNICIAN, DANA
Mr. Getts. Mr. Chairman, members of the House Committee on
Education and Workforce, I thank you for the opportunity to
speak before you today on the National Labor Relations Board's
ambush election proposal, and allowing me to speak and share my
experience with union officials during their effort to unionize
my place of work.
Based on my experience with union organizers, it is clear
to me that the rule changes, as the NLRB has proposed, would
only further the interests of the union officials who are
undermining those of workers. Let me start by telling you that
I am a former member and union steward myself.
Currently, I work in a small plant north of Fort Wayne,
Indiana that is owned by Dana Corporation, where we pack and
ship parts. When I took the job, I was told by other employees
that we had never had any kind of a push for a union before in
our plant in anyone's memory.
All that changed in October of 2007, when the United Auto
Workers began a card check organizing drive at our plant. That
fall, the UAW official came to our plant, explaining that he
had cards for us to sign to unionize our plant, and telling us
the reasons that he thought we should sign the cards.
The union official, during our first meeting, was so
brazen, and constantly, without hesitation, cursed and used
foul language during this initial presentation to us. Normally,
this would not be unusual in that kind of an environment, but
in our plant we are like 80 percent--I hate to use ``elderly''
because they are about my age, but female.
And they were clearly offended by these claims, so much so
that they brought new officials in after that and we never saw
him again. Despite the unpleasant beginning, I was initially
inclined to support the unionization effort as a union member
from the previous job.
As time went by, though, I clearly became extremely put off
by their general approach and strategies that officials--the
UAW officials--and grew skeptical of their claims. In the end,
the experience taught me something all too many workers have
learned first-hand. Union organizers have the uncanny ability
to harass, misinform, mislead, manipulate in the pursuit of
On a database, my coworkers and I found the UAW officials
waiting in our break room. They would approach during out lunch
breaks. They would even follow us out to our vehicles before
and after work, some even to our homes, all on the order to
give us their side of things and inform of so-called benefits
their representation would bring us.
They would say that they would start negotiating the moment
the cards were signed, and that our small group would make
about the same as the workers in a much larger Fort Wayne
plant. To many of us, that did not seem possible because we
were making $12 an hour, and in the Fort Wayne plant they were
making over $21 an hour.
Of course, much of what they told us proved to be false.
But it is fair to say that we were not lacking information of
the union officials. What neither my coworkers nor I knew at
the time was, the company was under a so-called ``neutrality
agreement.'' This meant that the only information they were
allowed to receive was the side of the UAW.
Honestly, my coworkers and I would have appreciated the
views of our employer in hearing the other side. After all,
this is an important decision. In order to make the decision
that would be right for ourselves and our families, we needed
to all be--all the information that we could get.
Because we were not hearing from the opposing points of
view from our employer, I took it upon myself to research and
verify everything that I could. The period of harassment that
my coworkers endured at the hands of the UAW officials were
intolerable. Under proposed rules, I would have been subjected
to even more intimidation and harassment and mistruths.
You see, if these rules go into effect, union officials
would have access to workers' personal information. They would
have not only our names, home addresses, but personal email
addresses and home telephone numbers, as well.
As it was, I was combating the falsehoods of the UAW
officials--would have put nearly an insurmountable task had it
not been for the help I found in the National Right to Work
Foundation's Web site. My coworkers and I were ultimately able
to reject the unwanted representation of the UAW.
We came to the decision, and the benefit, only after
looking at all the facts and only because we were afforded the
time to do so and have the secret ballot election. If the
NLRB's recommendation for union elections goes into effect,
even if our workers enjoy the benefit of hearing points of
view, we will be denied the ability to fully research the
information needed to come up with a good decision that is best
In reality, I understand these rules in addition burden the
already busy workers to prohibit from making informed decision.
Mr. Chairman, members of the committee, the fact that the
National Labor Relations Board has gone far beyond its
authority in serving big labor's agenda, Congress must stop
this runaway NLRB and its assaults on workers and business in
[The statement of Mr. Getts follows:]
Prepared Statement of Larry Getts, Employee of Dana Corporation
Mr. Chairman, members of the House Committee on Education and the
Workforce, thank you for the opportunity to speak before you today on
the National Labor Relations Board's ``Ambush Election'' proposal, and
allowing me to share my experience with union officials' during their
effort to unionize my place of work.
Based on my experience with union organizers, it is clear to me
that the rule changes the National Labor Relations Board has proposed
would only further the interests of union officials while undermining
those of workers.
Let me start by telling you that I am a former union member myself.
Currently, I work at a small plant in Fort Wayne, Indiana that is owned
by Dana Corp, where we pack and ship auto parts.
When I took the job, I had been told by other employees that there
had never been any push to form a union in our plant in anyone's
All that changed in October of 2007 when the United Auto Workers
began a ``Card Check'' organizing drive at our plant.
That fall a UAW official came to the plant explaining that he had
cards for us to sign that would unionize our plant, and telling us all
the reasons he thought we should sign the cards.
This union official was so brazen as to constantly and without
hesitation curse throughout his presentation. This might not sound
outrageous to some people, however you must understand that
approximately 80% of the workforce at the plant is elderly women--and
they were clearly offended.
Despite this unpleasant beginning, I was initially inclined to
support the unionization effort as I'd been a union member at a
previous job. As time went by however, I became extremely put off by
the general approach of the UAW officials and grew increasingly
skeptical of their claims.
In the end, the experience taught me something all too many workers
have learned first hand: Union organizers have an uncanny ability to
harass, misinform, mislead and manipulate in pursuit of their goals.
On a daily basis my coworkers and I would find UAW officials
waiting in our break room. They'd approach us during our lunch breaks.
They would even follow us to our vehicles at the end of the day and
some of us even to our homes--all in order to give us their side of
things and inform us of the so-called ``benefits'' their
``representation'' would bring.
They would say that they'd start negotiating the moment the cards
were signed and that our small shop would make the same as the workers
in the other--much larger--Fort Wayne plant.
To many of us, that didn't seem plausible because we were making
twelve dollars an hour, and in Fort Wayne they were making twenty-one
dollars an hour.
Of course, much of what they told us proved to be false, but it's
fair to say we weren't lacking information from the union officials.
What neither my coworkers, nor I knew at the time, was that the
company was under a so-called ``neutrality agreement.'' This meant that
the only information we were allowed to receive, the only side of the
story we were told, was that of the UAW.
Honestly, my coworkers and I would have appreciated hearing the
views of our employer. After all, this was an important decision. In
order to make a decision that would be right for ourselves and our
families, we needed all the information we could get.
Because we weren't hearing any opposing points of view from our
employer, I took it upon myself to research and verify everything I
The period of harassment my coworkers and I endured at the hands of
UAW officials was intolerable. But, under the proposed rules, we would
have been subjected to even more intimidation, harassment and
You see, if these rules go into effect, union officials would have
access to workers' personal information. They'd have not only our names
and home addresses, but personal email addresses and home telephone
numbers as well.
As it was, combating the falsehoods of UAW officials would have
been a nearly insurmountable task, had it not been for the help I found
through the National Right to Work Foundation's website.
My coworkers and I were ultimately able to reject the unwanted
``representation'' of the UAW. We came to that decision after we had
the benefit of looking at all the facts--and only because we were
afforded the time to do so.
If the NLRB's recommendations for union elections go into effect,
even workers who enjoy the benefit of hearing both points of view would
be denied the ability to fully research the information needed to make
the decision that's best for them.
In reality, under these rules, the additional burden on already
busy workers will prohibit them from making an informed decision--
especially where there is an absence of information from employers, as
was the case in my experience.
These rule changes are aimed at furthering the interests of Big
Labor at the expense of workers' ability to make a fully informed
decision on an important matter.
They are intended only to make it easier for union officials to
harass and force workers like myself into joining their union, into
paying dues and increasing the union bosses' power.
Mr. Chairman, and members of the Committee, the fact is the
National Labor Relations Board has gone far beyond its authority in
serving Big Labor's agenda. Congress must stop this runaway NLRB and
its assaults on workers and businesses in this country.
Chairman Kline. Thank you, sir.
Dr. Dau-Schmidt, you are recognized.
STATEMENT OF KENNETH DAU-SCHMIDT, PROFESSOR, INDIANA
UNIVERSITY, MAURER SCHOOL OF LAW
Mr. Dau-Schmidt. Thank you. I thank you for the invitation
to speak today before the National Labor Relations Board, or
before the committee, about the board's proposed rules for
conducting union representation elections. As a lawyer and law
professor, I have studied and taught labor and employment law,
including the board's processes, for almost 30 years now.
And as an economist, I have also studied labor markets and
the impacts of union and collective bargaining on the
distribution of wealth, the health of the middle class, and the
general health of the U.S. economy. And I look forward to
sharing what I know about these subjects with you today.
It is my strong opinion that the board's proposed rules
represent a model of agency administration of federal law.
Under the National Labor Relations Act, the board is charged
with administering the act so as to give employees a free and
fair say as to whether they want to be represented by a union.
In order to meet this charge, and in order to save
taxpayers money, the board must develop fair and efficient
rules for conducting employee elections. In this case, the
board has done just that. The board's proposal seeks to update
its antiquainted rules on election procedures to reflect modern
administrative and judicial procedures and methods of
communication accepted by administrative agencies and courts
across the country.
To this end, the board has developed rules for the timely
and orderly development of issues between the parties,
developed rules to allow the parties and the board to narrow
the issues and deal only with genuine issues of material fact,
develop rules which unify the appeal process into a single
discretionary appeals process, done away with unnecessary
waiting periods, and updated the methods of service and notice
to include modern electronic means of communication.
The rules do nothing to limit employers' rights to
communicate with their employees, or the many means by which
they can do that now. In developing these proposed rules, the
board's actions have not been rushed or ill-considered. The
proposals draw on elements of the board's practices that have
previously been used on a trial basis in some regions, and
other practices that are already included in the agency's case-
Thus, like any good administrator, either in the private or
public sector, the board's rules draw on past experience to
develop a new, simplified, and efficient procedure. Moreover,
even though the board is not required to by law, it has
voluntarily undertaken a 60-day notice and comment period on
the rules and committed to a two-day public hearing.
People talk about this being developed in secret. It does
not seem like much of a secret to all of us here in the room
today talking about it, does it? Through this process, the
board will take input from the parties as to how better to
improve the proposals, and perhaps change them. I comment the
board for a job well done.
But the board's rules accomplish much more than just
fairness and efficiency. They also actively promote respect for
the law and integrity for board processes. They do this by
eliminating unnecessary opportunities for delay in the board's
procedures that some employers, advised by union busting or, as
they like to be called, ``union avoidance specialists,'' used
to unfairly delay the board's election process to discourage
Professional union avoidance firms, retained for the
purposes of keeping employer union-free, promote delay and
coercion as a way of controlling the election process. They
seek to impose on the employees the employer's will not to have
the workplace organized. And thus they undermine the free
choice, the employees' free choice, through elections.
Consultants commonly counsel employers to challenge
everything in order to delay the election and buy more time to
engage in anti-union campaigning. Mere delay can sometimes
deter employees from freely choosing union, but also these
anti-union campaigns include illegal acts such as
discriminatory discharges, illegal interrogations, and unlawful
Now by streamlining and modernizing the election process,
the board will eliminate unnecessary opportunities for delay in
the election process and preclude opportunities for coercion
and lawbreaking. Thus, the streamline process has helped limit
illegal behavior and promote respect for board's elections.
Now, some here have argued that the board's proposed rules
will increase employee organization and cost the United States
jobs. Although I do not think the board had that in mind, they
certainly did not draft these procedures to try to increase
organization. These people may well be right that if the
employees get the right to freely choose as to whether or not
to be in a union, many of them will decide to do so.
But I think these people are very wrong about the impact of
union organization on the American economy. The American
economy is stalled right now in no small part because of the
collapse of the middle class. Businesses are making record
profits, and enjoy access to cheap capital. But they are
waiting on the sidelines to hire workers until they know
whether the demand for their goods and services will be there.
In every recovery in modern times, the American economy has
been led out of recession by the middle class consumption and
government stimulus. But the middle class right now is in
trouble. They have suffered decades of stagnant wages and are
mortgaged to the hilt just to try to keep afloat.
We need to find ways to increase the share of income going
to the middle class so that they can once again serve as the
foundation for our economy. Unions are a good way to do this.
When unions are strong, wages are high and a larger share of
the national wealth goes to the middle class.
High wages encourage job training and capital investment,
which causes the economy to spiral up, not to spiral down. If
an employer organizes businesses in a low-wage economy they
invest less capital and training in their workers, and you end
up with low-wage jobs.
If they organize a business in a high-wage economy they
invest more in capital and employee training, and you get high-
wage jobs. Why would we want our children to try to compete
with the Chinese on low wages and low job security when, with
training investment, they could instead compete with the
Germans and Japanese and provide high-quality goods and
services that developing countries want to buy.
I see my time is up. I am sorry for going over. Thanks for
[The statement of Mr. Dau-Schmidt follows:]
Prepared Statement of Kenneth G. Dau-Schmidt, JD, Ph.D., Willard and
Margaret Carr Professor of Labor and Employment Law, Indiana University
Maurer School of Law
Thank you for the invitation to speak today. I am pleased to get to
testify on the importance and appropriateness of the National Labor
Relation Board's (NLRB's) proposed rule changes for the conduct of
union representation elections. As a lawyer and law professor, I have
studied and taught labor and employment law, including the Board's
processes, for almost thirty years. Over the course of these thirty
years I have been fortunate enough to teach labor and employment law
not only in the U.S., but also in Germany, France, the U.K. and, most
recently, China. As an economist, I have also studied the labor market
and the impact of unions and collective bargaining on the distribution
of wealth, the health of the middle class and the general health of the
U.S. economy. I look forward to sharing what I have learned on these
topics that is relevant to discussion of the Board's proposed rule
I. The Need for Reform of the Board's Election Procedures
The Board's election procedure is broken and in need of an
overhaul. The procedure is broken because it includes outmoded and
superfluous procedures that do not meet the standards of modern
administrative and judicial procedure and communication, adding
unnecessary cost and delay to be borne by the parties and taxpayers.
The procedure is also broken because it allows unscrupulous employers
to control the election process through delay and intimidation.
Employer control of a process intended to give the employees free
choice, frustrates the employees' statutory right to choose and
undermines the integrity of the process. The Board's election procedure
must be reformed, not only to save time and money for the parties and
the taxpayers, but also to return integrity to the process and the
employees' statutory rights.
The Current Board Processes are Outmoded Adding Needless
Delay and Cost, Frustrating Employees' Statutory
Rights and Wasting the Parties' and Taxpayer Money
The purpose of the Board's election procedures is to allow workers
who want to have a vote on whether to form a union to be able to have a
vote in a timely and economic manner. Yet even in the best of
circumstances, when both sides undertake a good faith effort to make
the process work, the Board's procedures work against this goal.
Current procedures include needless delay and the reliance on outmoded,
costly and time-consuming methods for resolving issues, producing
evidence, accomplishing service and engaging in effective
The current Board process fails to promote the timely development
of the issues between the parties in a way that narrows the issues
under consideration to only genuine disputes of material fact. The
procedures provide the union with little information about the workers
or their jobs, so that the union is forced to make decisions about
challenging voters merely on what they can learn from other employees.
As a result, unions are forced to challenge employees whose status they
question without adequate information resulting in needless disputes
and litigation. Moreover, the procedures contain no pleadings like
those used in courts to develop the issues between the parties in a way
that allows Board Agents to separate the genuine disputes of material
fact from the non-issues. Issues and facts are raised and explored in a
more hap-hazard fashion over the course of a pre-election hearing,
election challenges and a post-election hearing. The board's proposed
changes address these problems by incorporating modern principles of
administrative and judicial proceedings through a ``statement of
position form'' and an updating of the Excelsior list.
The current Board process also contains superfluous procedures,
unnecessary delays and delays of unnecessary and indefinite length. The
current procedures allow for two possible appeals in one election,
first from the rulings of the pre-election hearing and later from the
rulings of the post-election hearing. This duplicity of remedy is
costly in both time and money and can result in the appeal of pre-
election issues that turn out to be moot once the election is held. The
pre-election appeal process also carries with a very costly delay. The
board's rules specify that normally the Regional Director can not
schedule an election until 25-30 days after the pre-election hearing in
order to permit the Board to rule on requests for review. Since reviews
are taken in only a minority of cases, in most cases this time is just
meaningless delay. Even in cases where review is requested this period
is much longer than necessary to give the parties' a meaningful
opportunity for review. Under current procedures for petition and
objection, almost all of the communication among the Board and the
parties is conducted through the Board using the mail--the slowest and
most costly method of communication commonly in use. The proposed rules
remedy these problems by moving the opportunity for review to after the
conduct of the election and shortening the period for requesting such
review. The proposed rule changes also change the form of service by
requiring the parties to directly serve each other, as well as the
Board, through electronic communication--an obvious improvement which
brings Board practices in line both with common sense and modern
practices of administrative agencies and the courts. The current Board
processes need to be amended to streamline procedures and bring them in
compliance with modern administrative and judicial practices of
procedure and communication, all well-justified to eliminate
unnecessary litigation, cost, waste and delay for the parties and the
The Current Board Processes Allow Employers too Many
Opportunities to Control the Election Process
through Delay and Intimidation
All too often, NLRB elections are not under-taken under the best of
circumstances with a good faith effort by both sides to make the
process work. In too many cases unscrupulous employers, and the ``union
avoidance'' firms they employ, use Board process to intentionally delay
the election process and give them time to intimidate employees into
voting against the union through illegal unfair labor practices
(ULP's). In these cases, the many opportunities for delay included in
the current Board processes invite lawlessness and undermine the
integrity of the election process with the result that cost and
litigation squeeze out the employees' free exercise of their statutory
right to decide whether to be represented by a union. Indeed the
process has become so burdensome and subject to employer manipulation
that many unions have abandoned formal Board processes in favor of
employer voluntary recognition. Board procedures need to be reformed to
reduce opportunities for abuse, return integrity to the election
process and ensure that the election process still meets employees'
needs as a way to freely express their desire whether or not to join a
The current election process gives employers control over the
timing of the election process by allowing them numerous opportunities
to object, appeal, litigate and create delay. Employers can force a
pre-election hearing by refusing to agree on a plan for the conduct of
the election, challenging the scope of the bargaining unit, challenging
the inclusion or exclusion of employees in that unit, or by raising
jurisdictional objections or other bars to the election. Under current
processes the Board must hold a pre-election hearing, even if there are
no issues regarding voter eligibility or any other legal issue, if the
employer declines to agree to an election date, time or location. At
the request of the employer, the hearing might not be held on
consecutive days, so that a simple 3 day hearing might be scheduled
over an 8 week period. Employers can delay the election further by
requesting to postpone or adjourn the pre-election hearing. In cases
where a pre-election hearing is held, the election occurs an average of
124 days after the petition is filed (Logan, et al 2011). Once the
election is held, employers can delay the final vote count and
certification by challenging voters and filing objections to the
election, triggering more litigation. Of course employers should be
given an opportunity to raise valid concerns and objections, but the
problem with the current process is that it gives too many
opportunities for abusive, unlimited delay and allows the parties to
raise an ever larger set of concerns expanding the conflict rather than
resolving it. By streamlining procedures and consolidating the parties'
opportunity for review in one postelection review process, the proposed
rule changes limit unnecessary opportunities for delay while still
affording the parties a complete opportunity for meaningful review.
Removing unnecessary opportunities to object, appeal or delay from
the NLRB's election procedures is vital because unscrupulous employers
can use any period of delay before an election to intimidate employees
and discourage union organization through the commission of unfair
labor practices. Not surprisingly, the chance of serious ULP charges
being filed against an employer in connection with an organizing effort
is determined more by the length of the period of time between the
petition and election than any other factor including firm size,
industry and location (Logan, et al 2011). An examination of election
petitions in 2003 shows that ULP charges against employers were filed
in 46 percent of all elections and in more than half of the elections
with charges filed, the NLRB found merit to at least one charge (Logan,
et al 2011).
Unfortunately the ULP data is only the tip of the ice berg on the
effects of coercive behavior by recalcitrant employers. Employees do
not file charges in all possible meritorious cases because: employees
fear employer retaliation for filing charges; and proof problems and
inadequate remedies make pursuing all but the most certain cases
pointless (Bronfenbrenner 2009). In a random survey of participants in
union organizing campaigns between 1999 and 2003, Professor Kate
Bronfenbrenner found that employers: threatened to close the plant in
57% of elections; discharged workers in 34% of elections; threatened to
cut wages and benefits in 47% of elections; and forced workers to
attend anti-union one-on-one sessions with a supervisor at least weekly
in two-thirds of elections (Bronfenbrenner 2009). Moreover, the
employer's power to delay and engage in coercive behavior has an effect
even on consent elections. Unions are much more likely to agree to an
election on employers' terms as to bargaining unit, inclusion or
exclusion of employees, date and place, just to avoid to potentially
coercive effect of delay.
Professional ``union-avoidance'' firms, retained for the purposes
of ``keeping the employer union free,'' promote delay and coercion as a
way of controlling the election process. Consultants commonly counsel
employers to challenge everything, in order to delay the vote to buy
more time to engage in anti-union campaigning (Lafer 2007). In an
article titled ``Time Is on Your Side,'' the law firm Jackson Lewis has
advised clients that pre-election legal proceedings should be
considered ``an opportunity for the heat of the union's message to
chill prior to the election'' (Logan 2004). Certainly not all employers
engage in coercive and illegal behavior, but an unfortunate number do,
encouraged by ``union avoidance'' consultants.
The opportunity for delay and coercion in the current Board
election procedures has caused many employees to abandon the Board
election process in favor of privately negotiated procedures for
voluntary employer recognition. Under the law, employers can
voluntarily recognize a union as the employees' representative if he or
she has a sufficient showing that the union represents a majority of
the employer's employees in the relevant unit. Although voluntary
recognition has been an authorized method of recognition since the
inception of the National Labor Relations Act, beginning in the mid-
1990's, unions began to actively abandon formal Board elections in
favor of demonstrating majority representation through the use of
signed authorization cards.
Today about half of the employees organized in the private sector
are organized outside the Board's election processes (Cooper 2008). The
Board's proposal helps ensure that its election procedures continue to
be relevant and useful to employees in expressing their desire whether
to be represented by a union, so that they will not have to resort to
other methods, perhaps even strikes, to achieve recognition.
Finally, the opportunity for delay and coercion in the current
Board election process undermines the integrity of the process and the
statutory right of employees to make a free and fair choice as to
whether they will be represented by a union. How can employees have
faith in a process in which one side has so many opportunities to delay
the election and certification, and so much power to coerce employees
in their decision? What sort of faith can employees have in the
protection of their right to organize in a system in which it can take
as long as 424 days from the filing of a petition to the resolution of
resolve pre-election issues, as happened in a recent case (Kansas City
Repertory Theatre, 17-CA-12647), and perhaps years to resolve post-
election objections before certification (Jury's Boston Hotel, 356 NLRB
No. 114 (2011), Mastec/Direct TV, 356 NLRB No. 110 (2011), and
Independence Residences, Inc., 355 NLRB No. 153 (2010))? The Board's
proposed procedures are necessary not only to encourage employees to
continue to use Board processes, but also to preserve the employees'
statutory right to choose whether to be represented by a union under
those processes and the integrity of the process itself.
II. The Board's Proposed Changes: Updating Methods of Procedure and
Communication and Lessening Opportunities for Abuse
The Board's proposed rule changes are intended to update the
Board's procedures so that they make full use of existing methods of
modern communication and are consistent with modern standards of
administrative and judicial procedure. These changes will not only
improve the Board's election process by encouraging the early
development and resolution of disputes, saving costly litigation, but
will also shorten the period between the filing of the election
petition and the election thereby limiting the possibility of coercion
and abuse by unscrupulous employers. At the same time, the proposed
changes in Board election procedures preserve a full opportunity for
the parties to raise legitimate objections and questions of law and
have them ruled on in a timely fashion with an opportunity for appeal.
The Board has taken great pains to ensure that its new rules fully
satisfy all current requirements of the statute and case law and are a
reasonable interpretation of the law. By promoting all of these
meritorious objectives, the modest changes which have been proposed
significantly improve the efficiency of Board's election procedures,
preserving the integrity of the process and encouraging employees to
use the process.
Updating Board Procedures to Reflect Modern Communication
promoting direct communication between the parties
by means of modern methods of communication
The Board's proposed changes provide for the electronic filing of
election petitions, statements of position, employee lists and other
documents. Where e-mail addresses are available for the relevant
employees, the proposed rules allow the NLRB regional offices to
deliver notices and documents to the employees electronically, rather
than by mail. Moreover the rule changes require that the parties serve
documents on the other side, as well as filing them with the Board,
avoiding the time delay of having the Board act as an intermediary
postman. These common sense changes promote the use of modern
electronic technology in representation proceedings to achieve
economies of time and resources for the parties and the Board.
Updating the Excelsior List Requirement
The proposed changes require employers to provide the Board and
union with an ``Excelsior list'' of employees they consider eligible to
vote in the election within two days after the scheduling of the
election. This list will include not only the employees' names, but
also their telephone numbers and email addresses, when available, as
well as their work locations, shifts and job classifications. These
changes shorten the time for producing the Excelsior list from seven to
two days to reflect the greater speed and efficiency of modern methods
of electronic recording keeping, retrieval and transmission. The
changes also increase the amount of information the employer has to
provide in the Excelsior list in order to meet the two purposes of that
list announced in the Excelsior case, 156 NLRB 1236 (1966). First, as
well as the employees' names, the employer will have to give the union
the employees' phone numbers and e-mail addresses, where available, to
meet the purpose of giving the union meaningful access to the employees
in the modern information age. The proposed rule would bar use of this
information for any purpose other than the representation proceeding
and related proceedings. Second, the employer will be required to give
the union information on the employees' work locations, shifts and job
classifications to meet the purpose of allowing the union to make an
informed decision on an employee's eligibility for inclusion in the
bargaining unit. Absent such basic information, the union is left to
just challenge all employees it does not have independent knowledge
about, increasing the number of election challenges and disputes and
further delaying the process. These changes merely adapt the Excelsior
rule to the existence of modern information technology and flesh out
the information required to limit conflict and debates in the election
Updating Board Procedures to Conform with Modern
Administrative and Judicial Procedures
adopting simplified procedures to establish and
narrow the issues in dispute
The Board's proposed changes provide a predictable, fixed schedule
for pre- and post election hearings which will allow the parties to
promptly resolve issues on the conduct of the election that they cannot
resolve by agreement. Under the amended procedures, the Regional
Director would schedule a pre-election hearing to begin seven days
after the hearing notice is served and, if any potentially
determinative issues of material fact raised at the pre-election
hearing are postponed until after the election, the Regional Director
would schedule a post-election hearing at 14 days after the tally of
ballots. The proposed rule provides flexibility to meet the special
needs of the parties in that the scheduling of the pre-election hearing
is subject to ``special circumstances'' and scheduling of the post-
election hearing is subject to being as soon as ``practicable.'' The
proposed seven day notice period before the pre-election hearing is
already in use in some Regions, and exceeds the five day notice
requirement set forth by the Board in Croft Metal, Inc. 337 NLRB 688,
688 (2002). In redrafting the procedures, the Board has consolidated
all Representation case procedures into a single part of the
regulations. Currently these procedures are described in three
different parts of the regulations, leading to redundancy and
confusion. These changes simplify the scheduling of pre- and post-
election hearings resulting in clarity, efficiency, and an important
saving in resources and time.
The proposed changes also set up a system that requires the parties
to identify issues and describe evidence soon after an election
petition is filed in order to facilitate resolution and eliminate
unnecessary litigation. Along with a copy of the petition, the parties
will receive both a description of the NLRB representation case
procedures, including their rights and obligations, and a ``statement
of position form'', which will help the parties identify the issues
they may want to raise at the pre-election hearing. The ``statement of
position form'' will expressly ask about the parties' position on all
major issues in the election proceeding including: jurisdiction;
appropriateness of the petitioned for bargaining unit; proposed
exclusions from the unit; the existence of any bar to the election; and
the time and location of the election. If the employer objects to the
petitioned for unit, the form will ask the employer to specify the
closest unit the employer concedes is appropriate. The parties will be
required to state their positions no later than the start of the
hearing, before any evidence is accepted. The Regional Director may
permit the parties to complete the form at the pre-election hearing and
it may be completed with the assistance of the hearing officer. After
the issues are properly joined, the hearing officer would require the
parties to make an offer of proof concerning any relevant issue in
dispute and would not proceed to take evidence unless the parties'
offers create a genuine issue of material fact. Litigation of
eligibility issues raised by the parties involving less than 20 per
cent of the bargaining unit would be deferred until after the election.
The parties could choose not to raise voter eligibility issues at the
pre-election hearing but rather do this through the challenge procedure
during the election. These changes are expressly designed to adapt
Board practices in election proceedings to modern principles of
administrative and judicial procedure which require that issues must be
plead or are lost, and that the finder of fact need only address issues
of material fact. See e.g. Fed. R. Civ. P. 56. These changes are aimed
at the same goals which support other administrative and judicial
bodies--to allow for better management of the hearing process by
discouraging the litigation of frivolous and irrelevant issues. The
proposed rule also defers, until after workers have had a chance to
vote, the litigation of the eligibility or inclusion of individual
employees affecting less than 20% of the bargaining unit. This saves
time and resources because, depending on the outcome of the election,
disputes over the eligibility of individual employees affecting less
than 20% of the bargaining unit may never need to be decided.
Adopting a Unified Process of Discretionary Appeal
The proposed rule changes also consolidate all election-related
appeals to the Board into a single post-election appeals process. This
common sense change not only simplifies the process, but also greatly
shortens the time to election by eliminating the pre-election request
for review and the accompanying 25-30 day waiting period. The
unification of the appeals process would also achieve economy in
litigation because some pre-election appeal issues will be rendered
moot by the election itself. All pre- and poselection rulings remain
subject to review. The proposed rule changes also give the Board
discretion to deny review of post-election rulings--the same discretion
now exercised concerning pre-election rulings--permitting career
Regional Directors to make prompt and final decision in most cases.
Discretionary review will preserve Board resources in providing an
opportunity for appeal and is consistent with modern administrative
The Impact of the Proposed Changes on Employees, Employers
and the American Taxpayer
The modest changes in the Board's proposed rule will modernize the
representation election process and bring it in line with modern
practices of administrative and judicial procedure and communication.
The proposed changes will streamline and simplify the existing process,
avoiding unnecessary cost and delay for employees, employers and the
American taxpayer. They will also require that the parties timely raise
objections and offers of proof, and follow just one appeals process,
promoting resolution of important issues and avoiding unnecessary
litigation once again saving all those concerned time and money. The
significant streamlining of the process avoids delay which invites the
commission of ULP's and the coercion of the employees in the exercise
of their right to decide whether to be represented by a union. By
avoiding abuse of the process through delay and coercion, the proposed
changes uphold the employees' right to freely decide whether to be
represented by a union and the integrity of the Board's processes.
Some might argue that the Board's proposals go too far in
streamlining their processes, and that employers will no longer have
adequate time before an election to express their views on unions.
However, these concerns seem unfounded. The proposed rules do not set a
fixed schedule for the election, but specify only that the election be
set at the earliest time ``practicable.'' The proposed changes do
nothing to limit the employer's right to communicate with his or her
employees, which exists from the first day the person is employed. An
employer is likely to know when his employees are considering whether
to form a union, even before the petition is filed and has many
opportunities to express his or her opinion on this matter at that
time. Besides, employers do not have to wait until after their
employees are actively considering representation or an election
petition is filed to begin communicating with his or her employees on
matters of importance to them. Bronfenbrenner and Warren have shown
that employer Unfair Labor Practices regarding organization commonly
begin well before the filing of the election petition and can continue
throughout the election campaign (Bronfenbrenner and Warren 2011).
Surely if employers are engaging in ULP's during this time, they are
also actively engaging in communication with their employees, or at
least have the opportunity.
Dale Belman, Unions, the Quality of Labor Relations, and Firm
Performance, in UNIONS AND ECONOMIC COMPETITIVENESS 41--108
(Larry Mishel & Paula B. Voos eds., 1992).
WHAT DO UNIONS DO?: A TWENTY-YEAR PERSPECTIVE (James T. Bennett & Bruce
E. Kaufman eds., 2007).
Josh Bivens, Squandering the Blue-Collar Advantage: Why Almost
Everything Except Unions and the Blue-Collar Workforce Are
Hurting U.S. Manufacturing, EPI BRIEFING PAPER #229 (Econ.
Pol'y Inst., Washington, D.C.), Feb. 12, 2009, available at
Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer
Opposition to Organizing, EPI BRIEFING PAPER #235 (Econ. Pol'y
Inst., Washington, D.C.), May 20, 2009, available at http://
Kate Bronfenbrenner & Dorian Warren, The Empirical Case for
Streamlining the NLRB Certification Process: The Role of Date
of Unfair Labor Practice Occurrence (Inst. for Soc. & Econ.
Res. & Pol'y, Working Paper Series 2011.01, 2011), available at
David Card, Thomas Lemieux & W. Craig Riddell, Unions and Wage
Inequality, 25 J. LAB. RES. 519--62 (2004).
Laura J. Cooper, Privatizing Labor Law: Neutrality/Card Check
Agreements and the Role of the Arbitrator, 83 IND. L.J. 1589
Kenneth G. Dau-Schmidt, A Bargaining Analysis of American Labor Law and
the Search for Bargaining Equity and Industrial Peace, 91 MICH.
L. REV. 419 (1992), available at http://papers.ssrn.com/sol3/
Kenneth G. Dau-Schmidt, The Changing Face of Collective Representation:
The Future of Collective Bargaining, 82 CHI.-KENT L. REV. 903
(2007), available at http://papers.ssrn.com/sol3/
Kenneth G. Dau-Schmidt, Employment in the New Age of Trade and
Technology: Implications for Labor and Employment Law, 76 IND.
L.J. 1 (2001), available at http://papers.ssrn.com/sol3/
Kenneth G. Dau-Schmidt, Promoting Employee Voice in the American
Economy: A Call for Comprehensive Reform, MARQ. L. REV.
Kenneth G. Dau-Schmidt & Arthur R. Traynor, Regulating Unions and
Collective Bargaining, in LABOR AND EMPLOYMENT LAW AND
ECONOMICS 96--128 (Kenneth Glenn Dau-Schmidt, Seth D. Harris &
Orly Lobel eds., 2009), available at http://papers.ssrn.com/
John DiNardo & David S. Lee, Economic Impacts of New Unionization on
Private Sector Employers: 1984-2001, 119 Q. J. ECON. 1383
Chris (Hristos) Doucouliagos & Patrice Laroche, What Do Unions Do to
Productivity? A Meta-Analysis, 42 INDUS. REL. 650 (2003).
(``Dunlop Commission Report''), U.S. DEP'T. OF LABOR & U.S. DEP'T. OF
COMMERCE, COMMISSION ON THE FUTURE OF WORKER MANAGEMENT
RELATIONS, REPORT AND RECOMMENDATIONS (1994).
Samuel Estreicher, Improving the Administration of the National Labor
Relations Act Without Statutory Change, 25 ABA J. LAB. & EMP.
L. 1 (2009).
Richard B. Freeman & James L. Medoff, WHAT DO UNIONS DO? (Basic Books
Gordon Lafer, Neither Free Nor Fair: The Subversion of Democracy Under
NLRB Elections, (American Rights at Work, July 2007), available
John Logan, The Fine Art of Union Busting, 13:22 New Labor Forum 76
John Logan, Erin Johansson & Ryan Lamare, New Data: NLRB Process Fails
to Ensure a Fair Vote (UC Berkeley Center for Lab. Res. &
Educ., Research Brief, June 2011), available at http://
Lawrence Mishel, Jared Bernstein & Heidi Shierholz, THE STATE OF
WORKING AMERICA 2008/2009 (Cornell University Press 2009).
John Schmitt & Ben Zipperer, Dropping the Ax: Illegal Firings During
Union Election Campaigns, 1951-2007 (Center for Econ. & Pol'y
Res., March 2009), available at http://www.cepr.net/documents/
How Unions Can Help Restore the Middle Class: Hearings Before the S.
Comm. on Health, Educ., Lab. & Pensions, 111th Cong. (March 10,
2009) (testimony of Prof. Paula
B. Voos), available at http://www.epi.org/page/-pdf/20090310--voos--
Chairman Kline. Thank you, sir.
Mr. Carew, you are recognized for 5 minutes.
STATEMENT OF JOHN CAREW, PRESIDENT, CAREW CONCRETE AND SUPPLY
COMPANY, TESTIFYING ON BEHALF OF HIMSELF AND THE NATIONAL READY
MIXED CONCRETE ASSOCIATION
Mr. Carew. Good morning. Chairman Kline, Ranking Member
Miller, and other members of the committee, thank you for this
opportunity to share my views on the new union election rules
being considered by the NLRB.
My name is John Carew. I am president of Carew Concrete, a
second-generation, family-owned ready mix concrete company
founded in 1977 and based out of Appleton, Wisconsin. Before
becoming president of Carew Concrete 10 years ago I
successfully worked my way up through the ranks of my family's
business, originally starting out as a yard laborer and, later,
driving concrete trucks.
We currently employ 170 employees spread throughout 13
Ready Mix concrete and aggregate plants. We operate a fleet of
over 150 vehicles, and deliver more than 90,000 yards of
concrete annually. I am also here on behalf of the National
Ready Mix Concrete Association. Founded in 1930, NRMCA
represents more than 1,300 member companies and their
subsidiaries that employ more than 125,000 American workers who
manufacture and deliver ready mix concrete.
The association represents national and multinational
companies that operate in every congressional district in the
United States. The industry is currently estimated to include
more than 65,000 ready mix concrete trucks. As with most small
businesses, owning and operating a ready mix concrete company
means that you are responsible for everything, whether it is
ordering inventory, hiring employees, meeting environmental and
safety regulations, dealing with an array of government
mandates and, when appropriate, even educating employees about
union organizing decisions, and their rights.
As someone that has experienced a union organizing drive, I
would like to share my story and how the proposed rule would
have hurt and complicated the process. In mid-September 1999,
during one of our busiest times of the year, we received word
that a union was attempting to organize our employees. We
consulted with an attorney, who advised us to seek legal
counsel specific to union organizing drives.
Being a small business without in-house labor counsel, and
with limited resources, we were advised to hire a labor
attorney, although the firm was located over 100 miles away.
From that point on until the election took place 42 days later
we were very busy. Countering misleading or inaccurate union
claims and educating every employee became an around the clock
To accomplish this, we had to educate all the company
supervisors and managers in case they were approached by
confused employees. We also had to create specific responses to
specific union claims and relay them back to the employees.
This required utilizing the bulk of company management's
resources. And at one point, we were even forced to shut down
offices, certain offices, in order to respond to many onerous
From the time we received the election petition until the
actual election we ran down the clock in the allotted time in
order to reach plant and communicate with every employee.
Employees were commonly told inaccurate statements, and
received false promises by union agents. Specifically,
employees received mail containing wrong and misleading
information on striking, health care, wages, and pensions.
Employees were even inaccurately told that they would
receive increased wages similar to cities with higher wages
nearly 100 miles away. Our response to hand out fax sheets
about pros and cons of joining a collective bargaining unit and
exactly what, if anything, the union could promise. We would
send out blast alerts to each of our plant locations, where
they were then posted at each site.
The alerts responded to specific information employees had
been told, or read in documents they received in the mail. We
felt it was necessary to supply these educational materials in
order to give our employees more information so that they could
make an educated decision.
The process was long and arduous. But, thankfully, we were
allowed the amount of time we had so we could hire
representation, identify areas of concern with the election,
draft and file appropriate documentation, respond to union
rhetoric, and communicate with our employees.
Due to this process, Carew Concrete was able to
successfully and legally respond to, and overcome the union's
actions, which resulted in the union losing the election by a
two-to-one margin. I take pride in knowing that still today
Carew Concrete is a healthy businesses, with 170 well-paid,
If Carew Concrete's union organizing experience had been
subject to the changes contained in the proposed rule it would
have been dramatically different. Under the new rule, the
shortened time frame would not have allowed us to hire an
attorney, accurately identify all the issues needing
consideration, draft our statement of position, prepare a
preliminary voter list, or discover relevant evidence.
The flexibility in the current system allows companies to
accurately and thoroughly assess the process, actions, and
options associated with petition of election, and thus it
should be kept intact. Carew Concrete and NRMCA support
employee rights to make informed decisions about their
We also believe in protecting the employer's right to be
part of the process. Creating a collective bargaining unit
should not be a snap decision. Carew Concrete and NRMCA urge
the NLRB to refrain from issuing a final issue on these
Thank you for allowing me to testify today.
[The statement of Mr. Carew follows:]
Prepared Statement of John Carew, President,
Carew Concrete & Supply Co.
Chairman Kline, Ranking Member Miller, and other members of the
committee, thank you for this opportunity to share my views on the
proposed new union election rules currently being considered by the
National Labor Relations Board (NLRB).
My name is John Carew, I'm President of Carew Concrete & Supply
Co., a second-generation, family owned ready mixed concrete company
founded in 1977 and based out of Appleton, Wisconsin. Before becoming
President of Carew Concrete & Supply Co. ten years ago, I successfully
worked my way up through the ranks of my family's business originally
starting out as a yard laborer and later driving concrete mixer trucks.
We currently employ 170 employees spread throughout thirteen ready
mixed concrete and aggregate plants. We operate a fleet of over 150
vehicles, and deliver more than 90,000 yards of concrete annually.
I'm also here today testifying on behalf of the National Ready
Mixed Concrete Association (NRMCA). Founded in 1930, NRMCA represents
more than 1,300 member companies and their subsidiaries that employ
more than 125,000 American workers who manufacture and deliver ready
mixed concrete. The Association represents both national and
multinational companies that operate in every congressional district in
the United States. The industry is currently estimated to include more
than 65,000 ready mixed concrete trucks.
The current makeup of the ready mixed concrete industry is top-
heavy; meaning that a large majority of the ready mixed concrete
produced in the United States comes from a small number of large,
vertically integrated companies. These companies amount to nearly
fifteen percent of the ready mixed concrete companies in the United
States. The other roughly eighty-five percent of the industry is made
up of small businesses similar to Carew Concrete & Supply Co. As with
most small businesses, owning and operating a ready mixed concrete
company means that you are responsible for everything whether it's
ordering inventory, hiring employees, meeting environmental and safety
regulations, dealing with an array of mandates from federal, state and
local governments, and when appropriate even unilaterally educating
employees about their rights and informing them about union organizing
As someone that has experienced an organizing drive I would like to
share my story, and how the proposed rule would have hurt and
complicated the process.
In mid-September of 1999, during one of our busiest times of the
year, out of the blue we received word that a union was attempting to
organize our entire employee base. Shortly thereafter, we consulted
with an attorney who advised us to seek legal counsel specific to union
organizing drives. Being a small business without in-house labor
counsel and with limited resources it wasn't until about a week later
when we finally were able to hire an attorney, although the firm was
located 100 miles away in Madison. From that point on, until the
election took place 42 days later in October, saying we were busy would
be an understatement.
Due to the high number of employees, the thirteen employment sites,
and the fact that the organizing drive was for the entire employment
base, not just a certain set of employees, countering false union
claims and educating every employee when they were on-duty was an
around the clock job. To accomplish all of this the first step was to
educate all of the company's supervisors and managers, in case they too
were approached by a confused employees with questions. Next we had to
create specific responses to specific union claims and relay them back
to the employees. This required utilizing the bulk of the company's
management resources, and at one point we were even forced to
temporarily shut down certain offices in order to respond to the many
onerous union claims.
From the time we received the election petition, up until the
actual election, we ran down the clock on the allotted time to reach
each concrete plant and communicate with every employee about the
organizing drive. Employees were commonly told inaccurate statements,
and received false promises by union agents. Specifically, employees
would receive mail containing not enough information, misinformation,
and misleading information on issues such as striking, health care
insurance, wages and pensions. At times employees were inaccurately
told they would receive increased wages, similar to cities with higher
wages nearly 100 miles away. Our response to this, in coordination with
our new attorney and in accordance with the law, was to draft and hand
out ``fact sheets'' about the pros and cons of joining a collective
bargaining unit, and exactly what, if anything, the union could
promise. We sent out numerous blast alerts to each of our plant
locations which would then be posted at each site. The alerts, after we
cleared them with our attorney, responded to specific information
employees had been told or read in documents they had received in the
mail. We felt it was necessary to supply these educational materials in
order to give our employees more information so they would be able to
make an accurate and educated decision.
Although the process was long, arduous, and aggravating, the fact
that we were allowed and needed that time to hire representation,
identify the areas of concern with the election, draft and file all
appropriate documentation, respond to union rhetoric, and communicate
with our employees, was essential. Due to the process afforded to Carew
Concrete & Supply Co., we were able to successfully, and legally,
respond to and overcome the union's actions, which resulted in the
union losing the election by a 2 to 1 margin. I take pride in knowing
that still today Carew Concrete & Supply Co. is a healthy business with
170 well-paid, happy employees. Like many small, family-owned
businesses our employees have become an extension of our family. This
relationship is the backbone of our thirty-four years of success.
Carew Concrete & Supply Co. and NRMCA support employees' right to
make informed decisions collectively about their employment future,
however we believe the newly proposed union election rules proposed by
the NLRB do not support this same principle.
If Carew Concrete & Supply Co.'s union organizing experience had
been subject to the changes contained in the proposed rule it would
have been dramatically different. In particular, the overall time frame
allowed and needed between the notice of election and the execution of
the election was critical to accurately inform our employees about the
issues. The time frame allowed the company to fully assess and
subsequently hire the right legal representation for our situation.
Most small ready mixed concrete companies and small companies in
general, do not know what they can and cannot say to their employees
about or during a union organizing drive. When an employer receives an
election petition, which is often when they first become aware that
their employees are facing a union organizing election, it frequently
takes longer than seven days to find and hire a consultant to advise
them on their rights, abilities, and the complexity of union election
regulations. Under the new rule the shortened time frame does not even
take into account the time it takes to accurately identify all the
issues needing consideration, the drafting of the employer's statement
of position, preliminary voter list, and discovering relevant evidence.
The flexibility in the current system allows companies to accurately
and thoroughly assess the process, actions, and options associated with
a petition of election and thus, it should be kept intact.
Already, unions have the advantage of subtly working behind the
scenes for months without an employer's knowledge to persuade employees
to unionize. It is only fair that an employer be allowed the current
time frame to accurately communicate with employees. Employers are
already at a disadvantage and under this new rule would be
disadvantaged even further. Drastically limiting any amount of
employee/employer communication brushes too close to infringing on the
freedom of speech rights of both parties.
Just as Carew Concrete & Supply Co. and NRMCA support employees'
right to make informed decisions collectively about their employment
future, we also believe in protecting an employer's right to be a part
of that process and to have the ability to honestly and effectively
communicate an employer's position to employees without obstruction.
Carew Concrete & Supply Co. and NRMCA urge the NLRB to refrain from
issuing a final rule on these proposed changes. Employees deciding
their employment future should not be a snap decision. It is only fair
that before a group of employees decides on their collective bargaining
rights that they receive information from both union and their employer
about what unionizing really achieves.
Thank you again for allowing me to testify today. I would be happy
to answer any questions the committee may have.
Chairman Kline. Thank you, sir.
Mr. Lotito, you are recognized.
STATEMENT OF MICHAEL J. LOTITO, ATTORNEY,
JACKSON LEWIS, LLP
Mr. Lotito. Thank you, Mr. Chairman, Ranking Member Miller,
members of the committee. It is an honor to be with you today.
Much has already been said by my fellow witnesses. And I think
my written testimony speaks for itself so I will try to be
I would like to just comment on three points. First, will
the proposed rule further our national labor policy of
permitting employees to choose whether they wish to be
represented by a union or not, based upon fact? Second, while
the board's MPRM claims to minimize litigation, will it in
actuality do so? And third, should the Congress consider
redefining how much responsibility and authority the board
should have delegated to it, especially when the board is not
at full strength with five Senate-approved members?
Regarding the right to choose, in the 1920s and 1940s my
father was happy to be a member of the union. He had no other
employment laws to protect him. Companies did not think that
employees were their most important asset, and the union
provided a value proposition to him at Todd Shipyard in New
In the 1950s and the 1960s, my father's interest in union
representation declined. He told my mother that he had prepared
for one strike too many. So he finished his working career as a
hardware salesman for a mom and pop store in Levittown, Long
Island. So work, and unions, went hand-in-hand in my home.
And it seemed natural to me to want to become a labor
lawyer when I entered law school, and go on and represent
unions and the worker man and women. So when I graduated in
1974, I could not get a job. Rich Trumka and I were in the same
class at Villanova, so I probably should have asked Rich for a
position then. I doubt that he would hire me today.
So I wound up working on the management side because, quite
frankly, I had to repay student loans. But I found out very
quickly that I was really on the same side because I was
helping contribute to a positive workplace environment. Because
our clients were asking for guidance on how to do the quote,
unquote--``right thing.'' How to ensure that people were quote,
unquote--``being treated fairly.''
How to train management to respect the rights of employees
and, in a union situation, how best to communicate with
employees legally and factually to help decide if they wanted a
union. Today, with roughly 93 percent of employees in the
private sector dealing directly with their employer, the vast
majority of the people in the workplace really have no idea how
unions operate, what union rules are, what happens if a union
is selected, and other basic information about the unions'
If the employer does not provide that information, the
employees will wind up making a decision without critical data.
The board admits as much in its other notice of proposed
rulemaking regarding a new mandated poster which, if enacted,
will impact some 6 million employers. It is worth noting that
we have an experience with employer neutrality in our history.
From 1935 to 1947, the law did not permit employers to
communicate about unions with their employees. And I submit
that this relatively brief experiment with neutrality led to a
necessary correction when, in 1947, 8-C was inserted into the
statute. Unions, quite frankly, have been in mourning ever
So while the notice of proposed rulemaking deals with many
technical issues in the election process, at its core this
proposal is an attempt to take us back without, in my view,
congressional action, to the state of the law as it existed
from 1935 to 1947. Congress has the right to do that, but the
board does not.
How do employers communicate? In a variety of ways, but
primarily through first-line supervisors. Determining
supervisory status under section 211 of the statute is an
extremely complex and difficult legal analysis. Knowing whether
the person is a supervisor or an employee is about as basic as
you can get.
Which gives rise to my second point, and that is the
proposal that the board has to delay the holding of the hearing
until after the election. Based upon this proposal, almost all
elections are going to be conducted without clear understanding
as to who is an employee versus who is a supervisor.
That, in my view, is going to lead to additional litigation
post the election. It is true that, under this proposal,
elections will take place in a shorter period of time. But I
believe that as a result the lack of clarity, especially with
respect to supervisory status and other issues, that we are
going to wind up having more litigation post election than we
Which gets me to my last point. I think that the time is
now for the Congress to review section 9-C of the statute. I
think the Congress should consider an amendment which defines
an appropriate hearing as resolving issues before an election.
The rulemaking process, in my view, should be held in abeyance
And if this Congress wants to say that elections should be
held within a set number of days after the filings of petition,
absent extraordinary circumstances you would get my vote. At
least I would know what I was voting for. Employees should be
entitled to nothing less.
Thank you very much. Be happy to answer any of your
[The statement of Mr. Lotito follows:]
Prepared Statement of Michael J. Lotito, Partner, Jackson Lewis LLP
Good morning, Mr. Chairman and Members of the Education and the
Workforce Committee. I would like to thank Chairman Kline and Members
of the Committee for inviting me to testify here today.
Counseling Employers to Communicate Openly and Honestly with their
My name is Michael J. Lotito. I am a member of the nationwide labor
and employment law firm of Jackson Lewis LLP. The Law Firm represents
thousands of employers in a wide array of matters, including many in
proceedings before the National Labor Relations Board (NLRB or the
Board). I am a partner in the firm's San Francisco, California, office.
I have been practicing labor law for thirty-seven years. I have
represented numerous employers in representation cases before the NLRB
and have counseled many others in connection with union petitions for
representation elections and related Board proceedings.
Nearly 40 years ago, the founding partners of our Firm (then known
as Jackson, Lewis, Schnitzler & Krupman), Louis Jackson and Robert
Lewis, authored ``Winning NLRB Elections: Management's Strategy and
Preventive Programs'' (Practising Law Institute: New York, 1972), a
guide for employers' counsel on responding lawfully to union
organizing. It was unique in its time and would go through several
printings and editions. The authors observed that the ability of
employers to communicate with their employees was central to NLRB
elections. In a chapter entitled, ``The Employer Speaks Up,'' they
wrote (at page 37):
By now, a significant aspect of union organizing may have become
apparent. In most cases, the employee has not had the benefit of the
employer's point of view before signing a [union authorization] card.
Yet, if industrial democracy is to be meaningful, the choice which the
employee must make--between individual and collective representation--
should be an informed one.
Only after hearing both sides, can employees be reasonably certain
that their decision is the correct one. ``[T]he best test of truth is
the power of the thought to get itself accepted in the competition of
the market * * *'' [quoting Abrams v. United States, 250 U.S. 616, 630
(1919) (Holmes, J., dissenting)]. The obligation of giving employees
the other side of the story falls upon the employer.
Time has not diminished the truth of these words. Nevertheless, the
Nation is presented today with a proposal from a majority of the
Members of the National Labor Relations Board that, if adopted, would
largely preclude employers from speaking to employees about
unionization when it matters most--in the period leading up to an NLRB
The Proposed Rule Undermines Employees' Rights to Information
Workers would have to make decisions on representation based only
on what, if anything, the union or fellow workers told them. Such
information would be incomplete at best, misleading at worst. Not only
that, by deferring resolution of many difficult representation case
issues until after an election, if then, the proposal would not only
leave employees without critical facts of union representation, but
would deny them the right to know at the time they cast their ballots
which employees would be included in their collective bargaining unit.
This denial of responsibility undermines any stability in labor
relations that an election result is intended to confer. I refer to the
NLRB's Notice of Proposed Rulemaking, 76 F.R. 36812 (June 22, 2011).
I will not address all the problems raised by the NLRB rulemaking.
I will address the overarching postulate of the proposal and why the
rulemaking is against our national labor policy celebrating employee
free choice. I will also speak to some particularly vexing practical
problems arising out of the Board's intention to postpone difficult and
perhaps time-consuming decisions until a time when their resolution may
have little consequence.
Employers Have An Important Role in NLRB Elections
The Board's proposed rule assumes employers have no role to play in
NLRB representation elections. This is the long-held view of one member
of the Board who sits without benefit of Senate confirmation. In his
opinion, employers should stand aside and keep quiet. That being so,
the NLRB reasons, there is no hardship in mandating a ``quickie
election'' perhaps within 10 days of a petition being filed as another
member of the Board has suggested recently. That this all but shuts the
door on employers' providing critical information to employees about
the petitioning union, collective bargaining and potential strikes is
of no moment. Of course the Board majority says nothing has really
changed with election speech. The technical rules may remain the same *
* * there is just no time for the employers to inform their employees.
The NLRA Guarantees Employers' Rights to Communicate with Employees
First, the National Labor Relations Act makes clear employers have
an important role to play as part of the union selection process.
Section 8(c) of the Act (included in 1947) rejected the concept of
``employer neutrality'' in NLRB elections. It expressly guarantees
employers the right to communicate with workers about union
representation and other issues. It says, ``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 the provisions of this Act,
if such expression contains no threat of reprisal or force or promise
of benefit.'' 29 U.S.C. 159(c). Congress would not have taken pains to
end employer neutrality and exempt noncoercive employer speech from
arguable violations if it did not intend employers to exercise that
right--and exercise it vigorously. The Supreme Court has recognized as
much. In Chamber of Commerce v. Brown, 554 U.S. 60 (2008), the Court
From one vantage, Sec. 8(c) ``merely implements the First
Amendment,'' NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 S.Ct.
1918, 23 L.Ed.2d 547 (1969), in that it responded to particular
constitutional rulings of the NLRB. See S.Rep. No. 80-105, pt. 2 pp.
23-24 (1947). But its enactment also manifested a ``congressional
intent to encourage free debate on issues dividing labor and
management.'' Linn v. Plant Guard Workers, 383 U.S. 53, 62, 86 S.Ct.
657, 15 L.Ed.2d 582 (1966). It is indicative of how important Congress
deemed such ``free debate'' that Congress amended the NLRA rather than
leaving to the courts the task of correcting the NRLB's decisions on a
case-by-case basis. We have characterized this policy judgment, which
suffuses the NLRA as a whole, as ``favoring uninhibited, robust, and
wide-open debate in labor disputes,'' stressing that ``freewheeling use
of the written and spoken word * * * has been expressly fostered by
Congress and approved by the NLRB.'' Letter Carriers v. Austin, 418
U.S. 264, 272-73, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974).
Id. at 67-68. Brown is particularly pertinent, for there, the Court
was dealing with a state law that also would have restricted employers'
(state contractors') right to communicate with employees on
unionization. The Court struck it down as preempted by the NLRA. It
relied on Section 8(c) to reach that result.
In its proposed rule, the NLRB resurrects the same discredited
contention not by withholding funds, but by withholding the time
necessary to allow for employees to make an informed choice from all
Workers Need to Hear the Other Side
Second, as the Court's decision in Brown suggests, the employer's
guarantee of free speech really is intended to assure that employees
are able to hear all points of view before casting their ballots. By
depriving employees of views that are likely to be very different from
the union's, and information about the union that the union may be
reluctant to divulge, the NLRB would impinge on employees' right to
make a free and informed choice.
The NLRA in Section 7 safeguards employees' right to reject
unionization as well as to embrace it. While Congress gave employees
the right ``to self organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,''
it also gave employees the corollary right ``to refrain from any or all
such activities.'' 29 U.S.C. 157.
The Board has long held in a variety of contexts that knowledge is
necessary to make an informed choice.
In its background statement to its December 2010 Notice of Proposed
Rulemaking (NPRM) mandating a regulation requiring employers to post
notices informing their employees of their rights under the NLRA, the
Board quoted a commentator who observed: ``American workers are largely
ignorant of their rights under the NLRA, and this ignorance stands as
an obstacle to the effective exercise of such rights. * * * In sum,
lack of notice of their rights disempowers employees.'' Peter D.
DeChiara, ``The Right to Know: An Argument for Informing Employees of
Their Rights under the National Labor Relations Act,'' 32 Harv. J. on
Legis. 431, 433-434 (1995) (footnotes omitted). The Board explained
that its intent with the proposed notice posting was ``to increase
knowledge of the NLRA among employees, to better enable the exercise of
rights under the statute, and to promote statutory compliance by
employers and unions.'' NLRB's Notice of Proposed Rulemaking, 75 F.R.
80410 (December 22, 2010). Ironically, the Board on the one hand wants
employers to post a notice to educate employees but, on the other hand,
wants to do everything it can to minimize such education before an
Employers are in a position to supply information needed by
employees to weigh the pros and cons of union representation and make a
reasoned choice. Cutting off that source of information interferes with
the accomplishment of the NLRA's objectives and emasculates Section
8(c) of the Act. Employees need to hear both sides of the story and to
evaluate the information for themselves, as the Board has recognized.
Under the Board's suggested approach, unions will have unlimited time
to engage in organizing and then pick the unit for which the union
feels it can prevail in an election. The employer, on the other hand,
has virtually no time to respond. The employees are victimized as they
are less informed--if truly informed at all.
Problems with Mystery Bargaining Units
Third, the proposed procedural amendments also contribute to the
impairment of employee Section 7 rights. Implicit in Section 7 is the
right of employees to know who they are acting in concert with to form
a union. But under the Board proposal, employees would not be certain
which of their co-workers would share collective representation with
them if the union were selected. The Board's proposed rule requires the
employer, in particular, to identify any issues it has with the union's
petition. These issues frequently involve the scope and composition of
the unit--which groups or individuals are eligible for inclusion
because they share a community of interest with other petitioned-for
employees or are ineligible because they are supervisors or managerial
employees, and similar issues.
The NLRB's current rules provide the parties with a right to
litigate all the issues before an election is conducted, 29 CFR 102.66,
see Barre National, Inc., 316 NLRB 877 (1995), with some limitations,
see Bennett Industries, Inc., 313 NLRB 1363 (1994). The proposed rule,
however, would severely abridge this right. The NLRB Hearing Officer
would determine where the parties were in disagreement and limit
evidence to those issues. But if the disagreement concerned the
eligibility of employees who did not constitute at least 20 percent of
the bargaining unit, the matter could not be litigated pre-election.
This exception has the potential for much mischief.
Legal Compliance Will be Difficult if Supervisory Status is not
The supervisory status of many individuals--charge nurses,
assistant supervisors, assistant managers, team leaders, and many
others--may be in issue, but fail to meet the 20 percent threshold for
consideration. Other individuals and groups whose eligibility status is
in doubt also will fail to make the cut. Singly and together, however,
they may count for much in any prospective bargaining unit. Employees
will be asked to vote on collective bargaining in a unit ``to be named
Employers communicate with employees most often through front line
supervisors. But how does the employer identify these supervisors when
their status is contested and the NLRB refuses to make a decision
before the election? If the employer determines incorrectly who are
supervisors, and treats them as such, and the union loses the election,
the employer risks objections to the election (which, if sustained, can
result in a new election), unfair labor practices for interfering with
the rights of employees, and possibly, sanctions under the Labor-
Management Reporting and Disclosure Act (LMRDA) for engaging in
``persuader activities'' regarding these individuals. But if the
employer treats these individuals as rank and file employees, and it
turns out they are supervisors, it may also face objections and unfair
labor practices on account of their participation in union meetings or
appearance at the polling place during balloting. Either way, the
employer is at risk. How does the employer exercise its Section 8(c)
right to communicate when it matters most? Faced with a Board that
evades its decision-making responsibility, the answer is: with great
The chilling effect is manifest. Employers will be inhibited from
engaging in the vigorous debate the NLRA envisions and depends upon.
Employees will be the worse off. They will have to vote without benefit
of the core Section 7 right of access to needed information and
argument from their employer. Furthermore, because of the uncertainty
surrounding the disputed individuals' roles, the employer may forego
training these workers on avoiding unfair labor practices and
objectionable conduct. If they threaten, interrogate, make promises to
or surveil unit employees, their misconduct as supervisors may be
imputed to the employer, even if the company was entirely unaware it
was taking place. While the employer faces further Board proceedings,
the rights of employees will have been compromised unnecessarily by
supervisors who were uneducated and untrained in Board law.
Beyond this, there remains the quandary employees face in voting on
representation when they cannot tell who will share the bargaining unit
with them. Can employees make a rational, informed choice on collective
representation when the unit is indeterminate, and may not be decided
for months after the election, if at all? I think not. The composition
of a bargaining unit is a weighty factor in employee voting decisions
in NLRB elections; employees often choose or reject representation
based on who will be with them. Unit scope and composition may also
influence a union's interest in representing employees. Frankly, I fail
to see how employees may be expected to make the choices section 7
affords them on collective representation, or how the Board can comply
with its responsibility under section 9, in this state of affairs.
The Board suggests the parties might work these issues out in
first-contract negotiations after the union prevails in the election
and is certified. This is far too Pollyannaish for my taste. Statutory
rights cannot be treated so lightly. Even if the Board can delegate
(slough off, might be a better term) its statutory responsibilities to
private parties, which we doubt, these unresolved issues over groups
and individuals are far more likely to lead to further discord, stalled
negotiations and agency proceedings than dissolve in the comforting
embrace of labor-management amicability.
The proposed rule sows the seeds for further organizing in the
event the current union attempt is unsuccessful and might impose an
``easement'' on employer electronic communications systems. It requires
employers, before and after the pre-election hearing (beginning only 1
week after the petition is filed), to provide detailed information
regarding the identities and contact information, for all employees who
would be (or might be) covered by the petitioned-for unit, or any unit
the employer suggests as an alternative. The post-hearing requirement
that the employer provide the necessary information within 2 days after
the Regional Director issues a decision and direction of election
includes e-mail addresses. We find it especially worrisome. The
proposal is unclear whether the Board is referring only to employees'
private e-mail addresses or their business e-mail addresses, as well.
If the latter, the rule would represent an unexplained retrenchment
from the NLRB's decision in Register Guard, 351 NLRB 1110 (2007),
enforced in part and remanded in part, 571 F.3d 53 (D.C. Cir. 2009),
where the agency held an employer need not permit the use of its
private e-mail system for union-related activity.
This sets the stage for further problems. Can the union send e-
mails during employees' work time? How often can they access the e-mail
system? How many e-mails can they send? What kind of e-mails can they
send? Will they include lengthy attachments? Do they include videos?
What if they contain offensive content? What protection will the
employer be afforded against viruses transmitted by the union,
interference with normal business traffic, or malicious attempts to
crash the system? Also, what safeguards can the Board offer to make
sure that a union that loses the election will not avail itself of e-
mail addresses to continue to communicate with employees--an action
that very well could run afoul of Register Guard? The Board may yet
consider this issue, among others, for which it has invited comment.
Tradition and Prudent Judgment Counsel Caution While Board Membership
is in Flux
Board Chairman Wilma Liebman has cautioned elsewhere that Board
Members serving interim appointments (such as Member Craig Becker) and
those approaching the end of their term of office (as is the Chairman
herself), should be wary of making significant changes in the law made
by earlier Boards. We note, too, that one seat on the Board already is
vacant. We think the Board would be wise to heed the Chairman's advice,
about the proposal generally. The panel should not advance such a major
change in the Board's administration of Section 9(c)(1)and its
attendant de facto amendments to Section 9, Section 7 and Section 8(c)
with the NLRB as presently constituted. If and when a full Board
consisting of confirmed members determines change is needed and those
changes comply with the Board's Section 6 rule making authority rather
than usurp the prerogative of the legislature, that will be time
enough. That the current proposal would work changes not unlike those
Congress refused to approve in the ill-named Employee Free Choice Act,
makes forbearance all the more compelling.
Labor Department Proposal Also Targets Employer Speech
The Board's proposal does not appear in isolation. One day before
the NLRB published its proposed rules in the Federal Register, the
Department of Labor issued it proposed regulations for revamping its
``advice'' exception to the LMRDA. 76 F.R. 36178 (June 21, 2011). Those
proposed rules would define much essential legal advice an attorney
renders to an employer-client in an election context (to avoid
interfering with employee rights), and many directions an employer
gives to its supervisors about the election issues, as ``persuader
activity'' requiring compliance with the financial reporting
requirements of LMRDA. While the Labor Department's action is not the
subject of today's hearing, the NLRB and Labor Department proposals, if
adopted, would effectively nullify Section 8(c).
The Proposed Rule Purports to Solve Problems that do not Exist
The Board justifies its proposed rule changes by saying they ``are
designed to fix flaws in the Board's current procedures that build in
unnecessary delays, allow wasteful litigation, and fail to take
advantage of modern communications technologies.'' The Board's
arguments, however, make sense only if one starts with the proposition
that the Board's role is to facilitate the certification of unions,
rather than to vindicate employee free choice by an informed electorate
in secret ballot elections.
That the parties cannot predict with certainty when a pre- or post-
election hearing will take place, because practices vary by Region, is
not a major problem. That the Board has lacked discovery, such as that
available in the federal courts blinks at the fact that the Board has
consistently spurned efforts to apply the Federal Rules of Civil
Procedure to its proceedings; and in any event, nowhere in federal
court practice is complete discovery and refinement of issues required
routinely within seven (7) days after a complaint is filed, upon pain
of waiver and preclusion!
The Board also scores pre-election litigation over voter-
eligibility issues that are ``unnecessary'' and may not affect the
outcome of the election. The Board says parties should wait until the
election is over, then worry about them. But as we have shown above,
the Board's procedural ``simplification'' is ill-considered and will do
more harm than good to the protection of employee Section 7 rights.
Kicking the can of unresolved issues down the road in the expectation
it will disappear down a storm drain is no way to conduct agency
Providing lists of voters by name before an election is unnecessary
to the identification and resolution of eligibility issues; the
proposal merely facilitates further organizing by unions, during the
same campaign or in a later one. The elimination of pre-election Board
review of regional determinations permits uncertainty to persist
through the balloting, and fosters contested results. Respect for Board
elections will suffer. It is far better to promote certainty than
uncertainty. Employers may be pressured unfairly to abandon their post-
election arguments based on a union victory, even though they are
substantial. Further, there will be an inevitable tendency to sustain
the outcome of the election, regardless of the merits of post-election
The asserted current 25-30 day ``delay'' the Board complains of to
allow parties to seek review of Regional Director rulings does little
harm, since it runs concurrently with the current 17 day period for
providing and allowing the union access to the eligibility list and the
posting of the pre--election notice. It merely permits the employees,
with the unit now generally defined to consider countervailing facts
and arguments for union representation.
The agency also criticizes the current arrangement whereby it is
required to decide most post-election disputes; instead, it would
prefer discretion to deny review of post-election rulings that, one
suspects, it would invoke liberally. The Board should not avoid
performing necessary duties. Regional officials, unfortunately, have a
tendency to sustain the results of elections they have conducted for
the understandable, if not wholly satisfactory, reason of avoiding the
administrative burden of scheduling another election. Board review is
an important safeguard for aggrieved parties. Finally, there is no need
to hurry the provision of names and addresses and other information to
the Board and union after an election is directed, whether in
electronic form or otherwise. Many employers will have difficulty in
assembling the necessary information within two (2) days, especially
with the uncertainty attending Regional Directors' decisions under the
proposal. The Board has not even assured that the current mandatory 10-
day period for providing employees with critical information following
receipt of an Excelsior list will be continued. The information is
intended to foster the communication of information to employees; it is
not for the union's benefit or for the union to waive.
All this is calculated to hold elections before employees have an
opportunity to think twice or perhaps even once.
The Board's arguments do not persuade. They are, as Abraham Lincoln
said of an argument by Senator Stephen Douglas during their 1858
debates, ``as thin as the homeopathic soup that was made by boiling the
shadow of a pigeon that had starved to death.'' They do not warrant
infringing on employee and employer statutory rights of expression, and
the constitutional rights to free speech and assembly undergirding
them. They prescribe a remedy for a disease that does not afflict
anyone. Board elections already are held promptly. The median time for
conducting Board elections is a little over five weeks from the time a
petition is filed. Ninety-five percent of all elections are conducted
within 56 days. Unions do not appear to be suffering at the current
pace. They succeed in nearly two-thirds of all Board elections in which
they participate. This data hardly suggests the need for radical
change. Further haste serves no good purpose. And it would exact a
The House of Representatives should consider steps to assure that
the Board does not lose sight of its responsibilities under the Act.
Legislation providing further guidance on Section 9(c) might be
appropriate. It could direct the NLRB to resolve all substantial issues
affecting the bargaining unit and eligibility prior to a Decision and
Direction of Election, specify a minimum period after the filing of a
petition before an election may be directed, among other issues. The
rights of employees and employers must be safeguarded by preserving the
intent of the National Labor Relations Act so that right of employee
not only to make a choice but to make an informed choice will be
Thank you for your consideration. I would be pleased to answer
questions any Committee member may have.
Chairman Kline. Thank you, sir.
I thank all the witnesses. We will move now to members of
the committee. Opportunity to ask questions, watching the clock
relatively closely for all members. And let us try to limit
ourselves to the 5-minute rule.
I will start, Mr. Lotito, kind of where you finished up.
Under the current election system, following the petition for
an election what kind of contact do you and your clients have
with the regional director? How often do meetings lead to
compromise or voluntary election? What happens?
Mr. Lotito. Well, most of the contact, Mr. Chairman, is not
with the regional director, of course. It is with the staff,
whoever is assigned to handle the particular case. As the
board's statistics demonstrate, in the vast majority of time an
election arrangement is agreed to, usually to a stipulation for
certification upon consent election.
And the parties agree as to when the election is going to
take place. My concern, under the proposed rule, is that there
is going to be less time to engage in that kind of back-and-
forth because if you do not submit a position statement within
this very condenses time period that articulates every single
conceivable position that the employer might want to make down
the road the labor board is going to consider that to be
That is going to mean that there is going to be way more
time spent in the early stages in order to try to preserve
people's positions down the road as opposed to agreeing to
these voluntary election arrangements. I also think that the
practical effect, as I alluded to here, is, most of these
elections are held--the median is within--30, 38 days.
And the unions are winning 65 percent of these elections.
Which, in my view, is a pretty darn good track record. I think
having clarity before you go into the election on these type of
unit issues is important. And one more point, if I could. It is
also very important for the employees to know who they are
It is important for the employees to know what the unit is
going to be. And if the employees do not know that ahead of
time, they are going to be voting for a union, for a unit, to
be decided upon later. And I think that that interferes with
their free choice.
Chairman Kline. Thank you. As I understand, a large part of
your role is to go to your clients and help them understand
this as they move through the representation cases. And under
the proposed rule, an employer would have 7 days to recognize
the requirement to do something, find you or somebody you--I
think the example here that Mr. Carew or somebody gave referred
to somebody who lives some miles away.
Somebody who not only understands the outline of law and
procedure, but understands the law and procedure. And in that 7
days, the employer finds some representation, some expertise,
get to know each other, understand what has to be submitted,
get submitted. And once submitted, it cannot be changed.
Mr. Lotito. That is correct, Mr. Chairman. I think it is
going to be a challenge. Many even large employers today that
have in-house staffs of attorneys do not have attorneys that
are skilled in labor law. Quite frankly, in the 35 or so years
that I have been doing this, with the decline of unions
generally there are not that many people who practice this
specific area of the law.
There are many employment lawyers, but there are not very
many labor lawyers. Understanding the nuances of taking a case
before the labor board is very, very difficult. And I think
that this proposal is going to make it even more of a
challenge, especially for the smaller employer.
And I think it is going to drive up costs. Because now, we
are going to have to file a position statement that is going to
have to cover every conceivable issues or else it is going to
be waived. And in order to protect the employer under those
circumstances, it is going to take more time up front in
preparing for that kind of a statement that is going to have to
go before the board.
Chairman Kline. So we have only a few seconds left. Taken
together, all these proposed changes--the increased cost that
you are talking about because now you have to cover for a whole
lot more contingencies since you cannot add or detract once the
7 days are up--when you put all this together, in your opinion
what do these changes do?
Will it help stabilize the economy? Will it help create
Mr. Lotito. Well, I am not an economist, and I do not know
about job creation perhaps as I should. I can say that----
Chairman Kline. Well, you know about this. Maybe that is
enough, sir. Enough to ask.
Mr. Lotito. I certainly think I know what the labor board
procedures are. What I feel comfortable in saying to you, sir,
is I believe that this, whether it is intended or not, is going
to dramatically increase the number of elections that unions
win. Because many employers are going to give up.
And I think many employers are going to wind up going
forward in these processes without the benefit of counsel. They
are going to be afraid about the increased costs that are going
to come about. They are going to go into these elections
without knowing who their supervisors are.
Those supervisors are going to make mistakes during the
election process. They are going to commit unfair labor
practice in objections to the election. And I think we are
going to have the antithesis of labor stability.
Chairman Kline. Thank you, sir.
Mr. Miller. Thank you very much.
Mr. Dau-Schmidt, let me ask you. We have received some
stories from people who have----
Chairman Kline. Mr. Miller, if I could just comment on
that, too, just a minute. I actually think the process does not
do anything to change consent elections or anything like that.
What it is aimed at is the abuse of the long-term, 124-day,
200-day elections that go on.
When they have come up with this simple unified process for
proceeding through the election, and then having one simple
process of appeal, they are acting like any other court or
administrative agency in the country, where they start out with
what are the issues between these parties and then we try to
narrow those issues.
So I could not disagree with Mr. Lotito more on his--his
last answer. But go ahead. I am sorry to interrupt.
Mr. Miller. Where do you find 7 days in the rule?
Mr. Dau-Schmidt. The 7 days? The 7 days is the notice after
the board gets the employer notice of a hearing, a preelection
hearing, they have 7 days in which to prepare for that hearing.
And they will have to produce a statement of position at that
Now, they can--the rules specifically specific that it can
actually be done at that hearing, with the board's help, if
they need help. But that is where the 7 days comes from.
Mr. Miller. But not 7 days to an election.
Mr. Dau-Schmidt. No. Oh, no. Oh, no.
Mr. Miller. The suggestion has been, in the press and
elsewhere, that somehow from the date that you are on notice
from the union that there is 7 days, and then----
Mr. Dau-Schmidt. Oh, no. The----
Mr. Miller [continuing]. The regional director has an
unlimited amount of time, in fact.
Mr. Dau-Schmidt. Yes. The standard in the proposed rules is
practicability. In other words, the election will be held as
soon as practicable. And that actually puts more limits on it
than is currently under established rules. Under established
rules, the board is supposed to consult with the parties and
then set the election in its discretion.
And here, under these rules, the board is supposed to
consult with the parties and set it as soon as practicable. So
there is an affixed schedule as to when the election is going
to occur. There are certain minimum guarantees that you get
certain days of notice for either the petition or the hearing
or the list of voters.
There are some certain minimums. There are less minimums
under these rules than under the old rules because there is
less hearings and procedures. But the standard is
Mr. Miller. But that does go, again, to the idea that the
election somehow is going to be held in 7 days, and there is
not going to be any opportunity for employers or employees to
talk to one another, or to their employers, or to the union
Mr. Dau-Schmidt. It would be impossible to hold an election
in 7 days under these procedures unless the employer
voluntarily agreed to it.
Mr. Miller. But that is a----
Mr. Dau-Schmidt. That is entirely different, yes.
Mr. Miller [continuing]. Would almost--you know, most of
the time, what you have is some kind of agreement that is
reached, the vast majority.
Mr. Dau-Schmidt. Right.
Mr. Miller. So we incite a timeline on how quickly
elections are resolved in the past. You are including in that
an overwhelming number of voluntary agreements that are
Mr. Dau-Schmidt. That is absolutely right.
Mr. Miller. And so again, this rule, as I read it, is
trying to deal with outliers.
Mr. Dau-Schmidt. That is right.
Mr. Miller. You are trying to deal with the outliers, where
4, 5, 6, and 7 years later you are getting determinations----
Mr. Dau-Schmidt. Right.
Mr. Miller [continuing]. Where you have had people protest
and appeal on almost every item, and in some cases, fall
through or not fall through, but you get the delay that is
associated with that.
Mr. Dau-Schmidt. Sure.
Mr. Miller. That is what happened in a few percentages of
Mr. Dau-Schmidt. And actually, that relates to one of the
statistics that has been cited here. Which is that we have
heard, I think, from the chairman and also from Mr. Lotito that
unions win about two-thirds of these elections. Which is true,
but that is of the petitions that actually go to an election.
And when you look at it, actually 35 percent of petitions
the unions give up on. And in large part, one of the primary
reasons why they give up on it is the employer has delayed it
long enough that the employees become frustrated, or there has
been enough unfair labor practices committed that they no
longer think they can win the election.
So you actually are not including 35 percent of the
petitions that are frustrated by strategies of delay and
Mr. Miller. And again, in the reading of this rule, do
mandatory meetings between employers and employees continue to
Mr. Dau-Schmidt. Oh, yes. There is absolutely no
limitations on the employer's ability to communicate with their
employees like they do currently under law. They can--from day,
when they hire those people, or from day one when they start to
hear about the union organizing campaign they can--have captive
audit meetings. They can----
Mr. Miller. Can an employee refuse to go to a mandatory
Mr. Dau-Schmidt. Not except upon pain of losing their job.
Mr. Miller [continuing]. Sanctions for----
Mr. Dau-Schmidt. They can be sanctioned, and fired.
Mr. Miller. What happens if a--well, they could lose their
Mr. Dau-Schmidt. Yes.
Mr. Miller [continuing]. If they refuse to go. Does the
union have the ability to call a mandatory meeting?
Mr. Dau-Schmidt. No.
Mr. Miller. Does the union have a right to go onto company
property to meet with employees?
Mr. Dau-Schmidt. No.
Mr. Miller. Mr. Getts testified that they were in his
lunchroom and elsewhere. That is because the employer agreed to
a neutrality agreement. The employer made a decision prior to
the campaign for the unionization that led to those agreements,
Mr. Dau-Schmidt. That is absolutely right.
Mr. Miller. The employers did not have to give up their
right. The employers could have said he would not agree to a
neutrality, and then you would have no right to go onto the
property of the employer, under existing law.
Mr. Dau-Schmidt. And those agreements would still be in
existence under these rules.
Mr. Miller [continuing]. Does the--well, my time has run
out. I will come back on the second round. Thank you.
Chairman Kline. Thank the gentleman.
Mr. Petri, you are recognized.
Mr. Petri. Thank you, Mr. Chairman.
Mr. Carew, I noticed you are writing furiously. And I
wonder if you have any response or comments you would like to
make on the testimony of the other panel members.
Mr. Carew. Well, thank you this morning for allowing me
this opportunity to come in and tell our concerns for our
industry, our company, our employees, and my family and,
hopefully, my next generation, my kids that they are able to
continue this business.
When I was writing things down, there were so many things
that I felt were so important to say, and that, hopefully, I
can remember them all. This, to us, this process, is vital. It
can be life-changing for a small business owner. It has to be
And to us, experiencing this process, it is critical that
the employees are fully informed, get all the information they
need, to make an educated decision which affects all of us. Our
business, we are a ready mix concrete company in Wisconsin. Due
to weather conditions, our main months of pouring are May
through October, with the emphasis on September and October.
When we received our petition, it was during the busiest
month of our year, in September. And our business is spread
out. We got 13 locations, and there is about five to ten
employees at each plant. And each plant, even though it is
smaller, is as important as our largest locations.
And for us, we wanted to make sure we did things right. And
I have such great concern about--we are not experts, but we
want to do things right. We want to do things legally. We need
help. And to rush this process, and still run a business during
our busiest time of the year and get out to all of our
locations so that our employees can ask questions, ask
That it is so important for all this. I am just so
concerned that this is--it is too complex. It is not something
that needs to be rushed. We went through the process as it
currently is, and we feel we needed all the time that we were
allowed to do this in a proper manner.
Mr. Petri. Mr. Schaumber, you have spent your life working
on these issues, and you raised some questions about the
appropriateness of the Labor Relations Board making a change of
this sort as opposed to the Congress. I wonder if you could
expand on that, or comment on whether you think--what is the
public policy objective that is being striven for by these
Is it for greater opportunity for the workers, or a better
outcome? Or what is the purpose of this whole exercise?
Mr. Schaumber. Thank you, Congressman. Let me begin by
saying it is not correct to say that there is no fixed time.
There is a, if you will, almost a fixed time for elections.
Elections will be held within 10 and 21 days. Many elections,
the soonest it can be held is 10 days. And many elections will
be 10 to 14 days, depending on the circumstances.
What the rules do is, they provide fixed times for each
element prior to the election. So in other words, they provide
7 days there must be a hearing. Two days, the employer must
provide the employer's list of witnesses. Two days for the
regional director to put up a notice of election.
It is up to the union as to whether or not it will rely,
and need to use the excelsior list--that is, the list of
employees--which could extend the election period. But that
will be a choice for the union. So very much depends how the
hearing plays out. But, if you will, it is a very fixed time,
and a very short period of time.
I do not think that the proposal is consistent with
congressional intent. The language in the statute about an
appropriate hearing has, for the last many, many decades, been
interpreted by the board to include a hearing which is non-
adversarial. A hearing which, both before and during, seeks to
develop the issues and develop a full record.
It does not contemplate what the board is imposing now. it
also contemplates a hearing at which preelection issues are
decided preelection. Mr. Lotito has mentioned some of the
difficulties here. But let me mention, for example, one of
them. Let us say you had a unit of 100 employees. And the union
filed a petition with 30 employees, which is 30 percent of the
And that is an adequate showing of interest. Then you have
an election. Ten people in the unit vote. Six vote for the
union, and four vote against the union. Then you have the board
decide afterwards the eligibility of the employees who are on
the eligibility generally of employees in the unit.
The board could conclude that the showing of interest was
inadequate. That those employees who signed the cards were, in
fact, not eligible. What is the board going to do with that?
Chairman Kline. The gentleman's time has expired.
Mr. Andrews. Thank you, Mr. Chairman. I would first note
the irony of a hearing that is about a fair and equitable
decision-making process that has four people on one side of the
question and one on the other. Mr. Dau-Schmidt, I do appreciate
Let me start with Chairman Schaumber, if I might. I notice
that, Mr. Chairman, you characterized the current board,
majority's feeling, as unconstrained by the limits of the law
in its recent decisions and behavior.
The present board, with its present majority, has achieved
unanimity in 83 percent of its decisions. What was the
percentage of unanimity in the board that you chaired?
Mr. Schaumber. Ninety percent.
Mr. Andrews. I beg to differ. I think it was 67 percent.
Mr. Schaumber. I was not chairman, Congressman, at the
time. That was prior to my chairmanship.
Mr. Andrews. [Off mike.]
Mr. Schaumber. Chairman Liebman agreed on 90 percent of
Mr. Andrews. Excuse me. During the board tenure, where we
most recently had Bush appointees to the majority, it was 67
percent. Now, do you think that is evidence that that board
majority felt unconstrained by the limits of the law?
Mr. Schaumber. We are talking about two different things,
and I--it is like I think you are trying to draw conclusions
which are probably not appropriate.
Mr. Andrews. No, I am trying the state facts that you are
claiming that this board is unconstrained by the limits of the
law, yet a huge percent of its decisions are unanimous.
Mr. Schaumber. There is a routine.
Mr. Andrews [continuing]. The board with the Bush majority
had a smaller percentage of unanimous decisions. Were they
unconstrained in making all these controversial decisions?
Mr. Schaumber. When you are talking about 80 percent,
Congressman, you are talking about routine, relatively minor
Mr. Andrews. [Off mike.]
Mr. Schaumber. You are not talking about the major cases,
which changed many decades of board law. The board, for
example, decided one case with regard to coercive secondary
picketing, in that it adopted a standard which is plainly
inconsistent with the language of the statute.
Mr. Andrews. Okay. I just do not think that, frankly, the
record fits your characterization. You also describe the
present situation as a radical manipulation of the board's
election process. One of the provisions in the proposed rule is
that within 7 days of the notice the election has to be called.
Is that not right?
Mr. Schaumber. No.
Mr. Andrews. Well, sure it is. What do the best practices
call for right now under the board----
Mr. Schaumber. It calls for a hearing to be scheduled 7 to
14 days, and some regional directories extend it.
Mr. Andrews. So do you think it is a radical departure to
go from 7 to 7 to 14?
Mr. Schaumber. Yes. Because what must happen, that is a
very, very short period of time. They are reducing it to 7
days, they are making an adversarial proceeding, and they are
telling the employer it must identify every issue, it must file
a statement of position.
Mr. Andrews. [Off mike.].
Mr. Schaumber. All of that is different.
Mr. Andrews. Chairman, the best practices manual presently
says it has to be between 7 and 14 days. What is the radical
difference between 7 and 14 and 7?
Mr. Schaumber. If you are talking simply about the time,
there is not. If you are talking about must happen in time,
Mr. Andrews. Well, what must happen now under the present
Mr. Schaumber. Under the present procedures, the region
speaks with the employer and the union and they negotiate, in
most cases, a preelection agreement. In 86 to 90 percent of
Mr. Andrews. And that is exactly what would happen now.
They would try to negotiate an agreement. Let me get to the
next issue which you claim is so radical. And I do not know.
Maybe I am wrong, but my understanding is that, in federal
court, if I file a complaint, a defendant files an answer.
First, the judge has a conference between the two sides,
where I say what my point of view is and my adversary says what
his or her point of view is. The radical departure that you
describe here requires the two sides to do the same thing.
What is so radical about that? About the employer coming in
and saying, ``Here are my claims that I want to make in this
hearing,'' and the union saying, ``Here are our claims we are
going to make in here.'' What is so radical about that?
Mr. Schaumber. Congressman, you are an experienced
litigator, I suspect, as I am. And as you know, litigators in
civil court have an opportunity to develop their case. They
have an opportunity to take discovery. There is nothing like
Mr. Andrews. Well, there is no opportunity within the
prehearing to develop any other issues. You are completely, res
judicata, barred from raising any other issues from your
initial list? Is that your testimony?
Mr. Schaumber. The only issue that is that all issues must
be identified by the employer, or they are waived. The employer
can challenge employees during the course of the election, as
can the union, even if they have not been challenged if
eligibility has not been raised.
Mr. Andrews [continuing]. Understand that you talk about
the challenge to eligible voters. If you are concerned about
that, then everyone sitting up here has the same problem.
Because in our elections we have what are called ``provisional
voters,'' where someone goes in, and they cast a provisional
And if their vote would make a difference in the outcome of
the election, you litigate over whether the votes counts or
not. What is so radical about that?
Mr. Schaumber. Does that save time and money? I do not
think it does. There has been the suggestion that it does.
Mr. Andrews. The question--is it radical?
Mr. Schaumber. It is radical. Because currently, regional
directors have discretion.
Mr. Andrews. Well----
Mr. Schaumber. They exercise their discretion.
Mr. Andrews. [Off mike.].
Mr. Schaumber. Excuse me, if I can finish.
Chairman Kline. Asked and answered. The gentleman's time
Mr. Andrews. Then, Chairman, you have 435 radically-elected
members of the House of Representatives, if that is the case.
Chairman Kline. Much ado.
Mrs. Biggert, you are recognized.
Mrs. Biggert. Thank you, Mr. Chairman.
Mr. Carew, under current procedures, once an election is
ordered, employers are requiring to provide the union with a
list of the names and addresses of the employees who will be
voting. As I understand it, under the proposed rule there is a
requirement that employers will provide employee phone numbers,
email addresses, work location, shift information, and
Does this not raise questions about employees' privacy?
Mr. Carew. Yes, it does. During our experience with this,
we received several complaints from employees on such items as
why am I getting these letters, why are they calling me at
night, why is my wife getting letters on the union. She is not
an employee of our company.
Some of our employees asked us to stop. ``Can you stop
this?'' And I said, ``No, I can't.'' We do not have employees'
personal email addresses. We do not have that. We are very
concerned about our employees' privacy and what is to be shared
Mrs. Biggert. Thank you.
Then Mr. Getts, do you have any concerns about your
employer providing your phone number and email address to a
Mr. Getts. Absolutely, yes. I would be very uncomfortable
Mrs. Biggert. I know when the phone rings now, and the
numbers show up, most people do not answer unless they know who
Mr. Getts. Correct.
Mrs. Biggert. But I do not know that that helps.
Mr. Getts. My wife's a little nervous about answering the
phone right now with me out here.
Mr. Dau-Schmidt. If I could comment on those?
Mrs. Biggert. Sure.
Mr. Dau-Schmidt. The rules do--I am sorry? The rules do
expressly state that the privacy of this information is to be
protected. And when you think about it, this is a lot like a
congressional election. I mean, I get phone calls and
advertising and things in the mail about congressional
elections all the time. It is not surprising----
Mrs. Biggert. But this is where----
Mr. Dau-Schmidt. It is not surprising that you would get
Mrs. Biggert. But this is where----
Mr. Dau-Schmidt. In this election that you would get
unsolicited mail, too.
Mrs. Biggert. Well, this is where the employer, though, is
required to provide that information to the union so that it is
Mr. Dau-Schmidt. Yes, yes.
Mrs. Biggert [continuing]. That they are dreaming--you
know, somebody has got a phone list.
Mr. Dau-Schmidt. And so why can a congressional campaign,
where you can mail to your constituencies--here, the union
could do a mailing to their constituency.
Mrs. Biggert. You can mail them, but they are not provided
by somebody, the list.
Mr. Dau-Schmidt. I believe the secretary of state in
Indiana will give you a list of addresses and phone numbers. We
could ask Mr. Rokita. I think he sends mailings to his
constituents regularly during election time. I get them.
Mr. Rokita. You are completely wrong on Indiana law.
Mr. Dau-Schmidt. Okay. I get them all the time.
Mrs. Biggert. Reclaiming my time, then Mr. Schaumber what
are the components of the proposed rulemaking? Is the set
timeline for preelection hearings? What do you think would be
the effect of imposing rigid timeline as opposed to allowing
Mr. Schaumber. Congresswoman, it is going to have two
effects. One, a set period of 7 days is really, for many
smaller employers, going to deprive the employer of an
opportunity for legal counsel. Particularly with the new
persuader reinterpretation, which the Department of Labor is
talking about. Because there are going to be fewer attorneys
practicing the area of traditional labor law.
Smaller employers are essentially going to be denied due
process. They are going have to go to a hearing in 7 days. They
will have to state what the issues are. And they are going to
have to make an offer of proof, if they are lucky enough to
identify an issue which the board agent finds is sufficient.
Mrs. Biggert. Mr. Carew said, in answer to another
question, was that if the union picks a time, for example like
in September where I can see a lot of companies with Christmas
coming up and their plan--that is their busiest time, would
these proposals have any delay for something like that? Is
there something that is proposed in there?
Mr. Schaumber. Excuse me. The proposed rules are fairly
rigid. They do permit, for example, the hearing to be extended
for I think the language used is ``extraordinary
circumstances.'' So the point that was raised, the interference
with production, is a very real concern.
Mrs. Biggert. Thank you. I yield back.
Chairman Kline. Thank the gentlelady.
Mr. Hinojosa, you are recognized.
Mr. Hinojosa. Thank you Chairman Kline and Ranking Member
I strongly believe that we here in Congress must focus on a
robust jobs agenda that improves the lives of the millions of
unemployed or underemployed American workers who are struggling
to feed their families and make ends meet. Now, more than ever,
our nation can and must train workers for high-skilled, family-
sustaining jobs and careers by improving our nation's public
workforce and adult education system through the
reauthorization of WIA.
In today's hearing, I respectfully ask my colleagues on the
other side of the aisle to refrain from continuing to disparage
the National Labor Relations Board and workers' right to
organize. History shows that America's economy benefits when
workers' rights are respected.
I would like to ask my first question of Professor Kenneth
Schmidt. Republicans argue that shortening the time from
petition to election will result in less-informed voters who
have not heard all sides of the story. In your expert opinion,
how much access to unions do the workers have, and how much
time do they have to deal with employers? How much time do they
Mr. Dau-Schmidt. First, so that we can try and talk on a
common basis here, I want to get to your question. But in terms
of the deadlines here, I do believe that past chair Schaumber
is incorrect that an election could be held in 10 days. That is
impossible under these rules. That only looks at the minimums,
and it assumes that board practices happen instantaneously.
And it does not look at the standard that the board applies
in these rules. The standard is that it has to be held within a
practical period. And as a result, I do not believe that these
rules would affect the vast majority of elections that are done
within a timely basis.
What it is trying to do is prevent opportunities for the
outlier cases. And so it is going to try to rule out the longer
cases of 124 days, 200 days, 300 days, or whatever that goes on
like that. That is what they are trying to take care of in
these rules. So I respectfully disagree with him on that.
Now, as to access to the employees, employers have
addresses and email addresses and all of that from the time
they employ the employees. My employer gives me my email
address. I do not think that is uncommon. So they do have
access to the employees from the time that they are employed.
Certainly, any time they hear about a union organizing
drive, and certainly after the petition has been filed, they
can, as Representative Miller mentioned, have captive audience
meetings where they compel employees to come and listen to
Mr. Hinojosa. If I understand you correctly, the American
workers receive the information from the employers they need to
make an informed decision about whether to join a union. It
seems to be lopsided as far as access to the employees by the
Mr. Dau-Schmidt. Yes. The union has no similar access to
the workplace, or to compel the employees to come to meetings
and hear presentations.
Mr. Hinojosa. I appreciate you confirming that. In today's
hearing, I want to take advantage of my time and ask another
question, this one addressed to Peter Schaumber.
In your National Review article last month you acknowledged
that Canadian provinces provide for much faster elections than
generally occur in the U.S. But you claim that this was only
because Canadian provincial law does not have to satisfy the
National Labor Relations Act or the U.S. Constitution.
This seems to imply that you think the U.S. Constitution
forbids the NLRB's proposed changes to its representation
procedure. So is there anything in these proposed rules that
interferes with employers' ability to speak their employees
whenever and however they want? That is my question.
Mr. Schaumber. Thank you, Congressman. My point in the
National Review article was that the Canadian law does not
implicate the Canadian constitution. Whereas our act implicates
the First Amendment, that is our act in H.C., the right of an
employer to express its views implicates, as the Supreme Court
has said, its First Amendment rights under the Constitution.
And the Court has said that that right suffices the entire
act. And the idea of it was to have a full and open debate.
That kind of full and open debate is going to be impossible
here. I must admit, Professor Schmidt has made a number of
remarks which are incorrect.
His last remark, with regard to an election not being able
to take place in 10 days, is incorrect. If an employer is not
able to raise an issue or make a sufficient offer of proof,
that election can go forward in as little as 10 days unless the
union decides it wants to have further use of the employer's
list of witnesses.
With regard to----
Chairman Kline. Excuse me. The gentleman's time has
expired. I am sure we will have a chance to explore that a
little bit more.
Mr. Platts, you are recognized.
Mr. Platts. Thank you, Mr. Chairman. Appreciate your
holding the hearing, appreciate all of our witnesses being
here. I will try not to be too repetitive, but a number of the
issues that have been raised are similar to my concerns. One is
the time frame.
You know, when I think of the decision whether to unionize
or not, that is a systemic change regarding one of the most
important aspects of an individual's life, their job climate,
where they work, what the situation is where they work.
I am a former union member. Worked my way through college
and after as a union member. So I appreciate the importance of
unions. But when we are going to have an election, especially
regarding something so important, I think more time, not less,
And the analogy I would make, when we talk about
analogizing to elections, would be to say, hey, we are going to
have a presidential election. And by the way, it is going to be
in two weeks, or 17 days, or 21 days. Obviously, everyone would
say, ``Well, that is not going to allow us to make an informed
decision. We want to know more about the candidates.''
And so I am concerned. My understanding, the average time
frame today is 31 days from the petition being filed to the
election being held, with 95 percent no more than 56 days. To
me, given the importance of this decision, that is, I think, a
pretty quick time frame.
So efforts to shorten it do concern me. Especially Mr.
Carew, when you share as a smaller business, you know just
getting notice out of the blue that a petition's been filed.
Not having ready access to, in your home community, a labor
attorney to get that counsel, to establish that relationship
seems pretty significant. Especially shrinking it 7 days for
that prehearing, and nothing can be changed.
So I think it is easy for us in Washington to come up with
ideas that sound good. But where the rubber meets the road, as
with your company, is what we need to really give great weight
to. And so I guess rather than a question, it is a concern that
I express about the time frame.
The other is on the issue of privacy and sharing the home
phone numbers and emails. You know, I think people are very
protective of that information. If they want to share it, they
are free to do so. But to have someone do it for you I think is
a little different.
And I guess Dr. Dau-Schmidt, I think you reference, you
know, analogizing to elections, I do not know. As a professor,
is your home phone number listed in the white pages?
Mr. Dau-Schmidt. I can tell you I have worked on unions, or
on election campaigns. And they have a list of registered
Mr. Platts. No, no. Is your home phone number listed in the
Mr. Dau-Schmidt. Yes, it is.
Mr. Platts. So Professor, all right. Students can call you
at home any time they want?
Mr. Dau-Schmidt. Yeah.
Mr. Platts. You know, that is a choice you have made
though. Do you think somebody should make it for you to say you
cannot have an unlisted number so your students have to call
you at the office as opposed to at home?
Mr. Dau-Schmidt. I have to admit, I was surprised by
Representative Rokita's answer. Because I have seen lists of
registered voters and their phone numbers in the State of
Mr. Platts. No, I am not talking about, you know, a choice
of an individual whether they want their home number made
public, or not.
Mr. Dau-Schmidt. Well, I believe all those registered
voters, those phone numbers are available to the public. At
least to their representatives.
Mr. Platts. In Pennsylvania, it is not going to be. If you
have an unlisted number, it is an unlisted number. I do not
know about Indiana or any other state. But my point is, that is
a choice. You have chosen to have yours listed, apparently. You
know, that is great, but that is a choice you have made.
And that goes into privacy here. So you know, I think the
effort here is to make sure union elections are fair to all
sides. I agree, but I think we need to be reasonable in how we
approach it, and would just voice my concerns both on privacy
and, most importantly, on deliberation.
So you know, I think the proposed rules are not well
thought out and, where the rubber meets the road, are going to
have dire consequences for everybody. Most importantly, for the
employees and the employer making informed decisions.
I have a few, maybe 30 seconds or so, left. Mrs. Roby, I
would like to yield my remaining time.
Mrs. Roby. Well, thank you for that. We need to focus in on
this part about the phone numbers and emails because it is that
important. And I have some questions, and when I get to my time
I will ask them.
But in keeping employee records, Mr. Carew, can you provide
a list of your employees within 2 days of the regional director
ordering an election? Could you do that in 2 days?
Mr. Carew. Well, for us we have manual employment records.
And so we would have to pull those records, and then type up a
list. And it will take some time. In addition, we do not have
like personal email addresses and things like that.
I myself, our company, I feel is very different, some lists
for some voting. This is our company being asked to share
personal information, which is quite different.
Mrs. Roby. Thank you so much for yielding your time.
And, Mr. Chairman, I yield back.
Chairman Kline. And the gentleman's time and gentlelady's
time has expired.
Mrs. McCarthy. Thank you, Mr. Chairman. Appreciate having
I would like to begin my testimony with some testimony that
I received from a worker, a nursing assistant, named Veronica
Tench. Veronica has worked at St. Vincent Medical Center in Los
Angeles since 1981.
She tells a story how she and her coworkers organized.
Excuse me. On January 5, Veronica and a coworker filed a
petition for an election with the NLRB. The election was
scheduled for February 18, 2000. Veronica shared that with her
employer, and they very quickly began an anti-union campaign
and subcontracted out some of the work in her bargaining unit
just days before the union elections to prevent employees from
voting in the election, in violation of the NLRA law.
Ultimately, the NLRB found that St. Vincent had violated
the federal law, but only in 2007, after 6 years of litigation.
Despite this ruling, the hospital continued its campaign. It
was only June of this year, 11 years after the petition for the
election was filed, that Veronica and her coworkers were able
Mr. Chairman, I ask unanimous consent to submit Veronica's
statement for the record.
[The information follows:]
Chairman Kline. Without objection.
Mrs. McCarthy. I would like to say something. I have been
on this committee 15 years now, and for 15 years I have heard
this committee constantly going after union members. I am from
a union family. My father worked very hard, and he died very
young because of complications from the work and asbestos.
My brothers are in the union, both. One retired, younger
than me. The other one certainly about ready to retire because
the work that they did basically broke them physically. I
happen to think that--and as a nurse I will say that--we got
unionized later in my years. I will say to you that the men and
women of this country, the middle-income families of this
country, are what made this country great.
And it just seems that everybody is going after them,
mainly because the economy is not well. Let me say to all of
you in the audience, you had nothing to do with the economy
failing. All you are doing is actually adding to the economy
because you are the ones that are going shopping, you are the
ones that are buying food.
So basically, what I am saying is that you can dislike the
unions. Maybe because you do not like to see middle class move
up. That one I have never been able to figure out. I want to
follow, certainly, to Professor Schmidt. You have heard a lot
of accusations here. And I notice that you have been writing a
lot of things down.
And I notice that you had your hand raised a couple of
times because you wanted to ask some questions. Please take my
time and answer any questions that you feel were not answered
correctly or that you did not have the time to answer them. But
I have to say, when it takes 12 years to try to get a place
unionized, something is wrong, and it is sure not leaning
towards making our unions stronger. [Applause.]
Mr. Dau-Schmidt. I will tell you, actually I do have a note
here of something I want to get to. But we have heard a lot of
personal stories, and I will give you my personal story to a
certain extent. I am at the point in my life where I have three
kids who are graduating from college and law school and looking
And as a taxpayer, I would much rather see this committee
looking at ways to stimulus the economy and provide jobs for
those kids rather than micromanaging the board. I cannot
believe you are engaged in this, especially when the board has
been responsible in its rulemaking process.
Now, the one thing that I had been waiting to comment on
is, past chair, Schaumber, I thought made the one attempt at
kind of bipartisanship here. And I wanted to acknowledge that.
He s worked with Chairman Liebman, and he acknowledged that
during the time they worked together she was an excellent
colleague. And, in fact, they had high levels of agreement.
And in fact, I used to joke with my students when they had
the two-person board. I used to joke, ``Maybe we should always
have a two-person board.'' Because the fact of the matter is,
it worked. It worked pretty well when just the two of you were
on the board, did it not? And what the relevance of that is.
I as an academic, get to follow these people in their
careers. I hear them at conferences, I get to hear them give
presentations, I read their opinions. And I would like to say
both of them are very knowledgeable about the law and very,
very reasonable people.
And the idea that Chairman Liebman here is of on some wild
goose chase, she is actually being a very responsible civil
servant and, with the board, trying to promulgate new rules
that will make our procedures more efficient and more fair. And
I think that should be commended rather than attacked.
Chairman Kline. The gentlelady's time has expired.
Mrs. McCarthy. Thank you.
Mr. Wilson. Thank you, Mr. Chairman. And, Mr. Chairman, I
want to thank you for your strong leadership in having this
issue examined. I want to thank the witnesses for being here
I have had the extraordinary opportunity, in my service on
the State Development Board, certainly as state senator of
South Carolina now serving in Congress, to work to recruit
industry to my home state of South Carolina. And one of the
great selling points that we have is right to work, where
persons who are working have the opportunity to join the union,
And we have seen the extraordinary success. I worked with
former governor, Jim Edwards, to recruit Michelin to South
Carolina. Thousands of jobs created in our state, and we are
very pleased that the North American headquarters is in South
Carolina. The other success story that was so incredible is
The late governor, Carroll Campbell, recruited BMW to South
Carolina at the time of the implosion of the American
automobile industry. At the very same time, BMW in South
Carolina announced a massive expansion, three quarters of a
billion dollars, and providing thousands of new jobs. And it
has been very, very successful because we are a right to work
But this year, my home state, South Carolina, has become an
extraordinary target of NLRB. First, there was the threat of
lawsuit, suing the voters of South Carolina. Last November, we
had a referendum to amend our constitution to provide for
secret elections in union elections. And I am very proud.
Eighty-six percent of the people, Democrats and
Republicans, voted for secret elections. And NLRB had said that
they will try to overturn this referendum. The same referendum
occurred in Arizona, in Utah, South Dakota. Sixty-five percent
in those states--South Carolina 86 percent. People understand.
We want to give people the opportunity to organize or not.
But then the most outrageous assault on the workers of South
Carolina by NLRB was the attempt to close the Boeing plant. It
has already been built, 1.1 million square feet. A thousand
people have been employed for the second line of 787
And so we have got families in our state who truly see the
outrage of excess by big government of NLRB. Now that is how it
affects a big company. But Mr. Carew, in your example, a small
business, the consequence of the unionization efforts. Can you
tell us how this affected your business?
Mr. Carew. Yes, I was sitting here and hearing this, and
trying to think for myself how would I do this. How could I
implement this for our company and our employees. It is not as
simple as sending out an email and me down at the auditorium at
10 o'clock that morning. Our guys are driving ready mix trucks
out, cover 100-to 150-mile radius.
And what for us, for our company, what I found through our
process, it was critical that we have face-to-face meetings
with our employees, hear their questions. If they wanted more
information, give them that information. It is so important
that they have an informed decision.
And just given them the logistics and the time of the year,
and how busy our business was, I would be so concerned that
they just would give up. That is such an important decision.
And I just feel it should not be rushed. And as an employer, we
really want to do things properly. There is a lot of complex
issues and a lot of things that go into this, and we do not
have that expertise.
But we want to follow the rules. And, and I am just so
concerned that we are not going to have the time, it is not
going to be done right. And my question is, why? So that is my
Mr. Wilson. Well, I am a former real estate attorney, and I
know that ready mix is crucial. For the home building industry,
for Realtors, thousands of jobs, millions of jobs can be
affected. The unionization effort, as it was, was a diversion
for you and for the people who work with you.
And so, again, how did you handle this? Or how did they
Mr. Carew. Well, what we did is, we had a process and when
these things started we pulled our family together. And we
said, ``What are we going to do?'' And then we pulled our
operations managers and our quality control managers and all
our key decision-makers and said, ``What are we going to do?
How can we respond to this very important decision?''
And then we would come up with things we wanted to do. And
then we would have to consult with our attorney to make sure it
was done legally. And then we would send out faxes to try to
get it out to the guys as soon as we could. And then we would
try to schedule meetings.
And the meetings, trying to get ahold of the guys during
the day, and deliver concrete, plus our plants are 20 miles, 25
miles apart. We got 13 of them. It was quite an exercise.
Chairman Kline. The gentleman's time has expired.
Mr. Wilson. Thank you.
Chairman Kline. Mr. Tierney?
Mr. Tierney. Thank you, Mr. Chairman. You know, we have
these hearings, and I suspect one of the reasons we have these
hearings is to try to get some idea of whether or not the rules
that are proposed are appropriate. And for that, it would be
helpful to have a fairly objective panel here and good cross-
sections of opinions.
I am not sure we have that in this situation. Let me start
with you, Mr. Lotito. You do not even purport to appear before
us, as an uninterested or an unbiased party, do you?
Mr. Lotito. I am certainly interested.
Mr. Tierney. Right. You certainly are. So I look at that. I
look at your firm's biography of you. And it says you are one
of the nation's leading authorities on preventative strategies
in the workplace. Those preventative strategies include
preventing employees from even organizing as a union, or union
So I want to explore that a little bit. Your firm Web site
has a client advice memo, and its title is ``Time Is On Your
Side.'' It explains that there are situations where pre-
election hearings are to the employer's advantage. It says, and
I quote--``In a recent campaign among 870 registered nurses at
South Shore Hospital in Massachusetts, which was represented by
Jackson Lewis, a 27-day hearing contributed to the 5-month
period between filing the petition and the election.''
The memo says nothing about the merits of the hearing. What
it does say, and I quote again, ``The hearing of some length
can put valuable time between the union's moment of maximum
support, when the election petition is filed, and the date of
So it looks to the rest of us here that union-busting
firms, like your firm, think a pre-election hearing is more
about strategy than it is about substance, and it is something
other than resolving the material issue. Is that not correct?
Mr. Lotito. No.
Mr. Tierney. Okay.
Mr. Lotito. First of all, we are not a union-busting law
Mr. Tierney. In this case----
Mr. Lotito [continuing]. The vast majority of----
Mr. Tierney. No, you have answered the question, and I
appreciate your comment on that.
Mr. Lotito. Well----
Mr. Tierney. In this case, the hearing, regardless of its
outcome, appeared to be pretty good strategy for stopping the
organizing drive, because your memo quotes one of the union
spokesperson as saying the 5-month delay was a killer. Your
biography also says that you help run the firm's ``How to Stay
Union-Free Program,'' which apparently is some sort of a
In 2007, a reporter named Art Levine apparently went to a
union avoidance seminar conducted by you in Las Vegas, which
cost him $1,595 to attend. He wrote about it in an article
entitled ``Union-Busting Confidential.'' And he quotes you, Mr.
Lotito, as saying, and I quote--``It's going to cost you some
money to remain union-free, sometimes big money.''
So my question to you is, how much does it cost an
employer, or how much does it cost a union, and how much does
it cost us as taxpayers, when you have a 27-day hearing clause
that puts, as was said, valuable time between the petition and
the election? What is the cost to the company? What is the cost
to the union?
Mr. Lotito. There are a lot of questions there. I am----
Mr. Tierney. Well, no. It is very simple.
Mr. Lotito [continuing]. Trying to----
Mr. Tierney. What is the cost to putting valuable time
between a petition election for an employer and for you?
Mr. Lotito. The vast majority of situations, there is no
hearing whatsoever. In the situation that----
Mr. Tierney [continuing]. You are a lawyer, so you know how
to answer a question.
Mr. Lotito [continuing]. That you are describing, there
were obviously very complex issues.
Mr. Tierney. The question, sir, is what is the cost. Do you
Mr. Lotito. I do not know what the cost of that hearing
Mr. Tierney. In 2004, the New York Times wrote about
another client of yours, a South Carolina battery company
called EnerSys. In the article, it said EnerSys was fighting an
organizing drive, but it ended up paying $7.75 million to
settle 120 labor law violations.
And the company ended up suing your firm, accusing Jackson
Lewis, and I quote--``of malpractice, and of advising it to
engage in illegal behavior.'' And some of that behavior
ostensibly was harassing union's top officials, improperly
withdrawing union recognition, and moving the production to a
non-union plant in retaliation.
Now, that lawsuit was, as I understand it, settled. Can you
share with us what the terms of that settlement were?
Mr. Lotito. No, I cannot because the settlement was
Mr. Tierney. So do you know whether or not your firm
advised the pre-election hearing in that case in order to delay
the election so the employer could do a string of actions?
Mr. Lotito. I was not involved in that situation, so I do
not know if we specifically advised them to have a hearing.
Mr. Tierney. Thank you--let us go to another document in
your firm, then. It is a publication called ``Union Know,'' but
the N-O are set off in relief. It is in an issue dated
September 2001. The first article in that is entitled ``War is
Hel--pful, H-E-L, dot, dot, P-F-U-L.'' So at least one-to-one
to hear, you know, you also mention in that union avoidance war
So what war would that be? This would be a war of employers
on employees? Is that what exercising rights as a worker should
entail? That your employer goes to war with your employees,
that creating conflict in the workplace is part of the union-
busting game? But you said in your testimony that you were
creating a positive workplace environment.
And the whole purpose of the National Labor Relations
Board, one of them at least, is to provide more stable, less
conflict-ridden labor relations, for both employers and
employees, including a free and fair way for workers to decide
upon union representation.
So having war games and having war be helpful to employers.
You tell me how that is creating a positive workplace
Chairman Kline. The gentleman's time has expired.
Mr. Roe. Thank the chairman, and thank the panel, for being
here today. And fortunately I am not a lawyer, but I am an
employer. And just as an observation, in 7 days, with all due
respect to my colleagues, we could not agree without a lot of
disclaimers, a bunch of lawyers could not, that the sun was
going to come up in the east.
So you are going to need more time than that, I think, to
do that. I want to talk just a second about the secret ballot.
And I am a veteran, and I put on a uniform to leave this
country and left a 12-week-old son to spend 13 months of my
life near the DMZ in Korea so that we could all have a secret
And I think this is about protecting the unions' rights and
the employers' rights and the workers' rights, employees'
rights, about how to do this. And I feel so strongly about that
it is the basic core of our country. And the NLRB should be a
referee. The way I understand it is, they are an impartial
Like if you go to a basketball game, you expect to have an
impartial referee there. And that is what they are supposed to
do so both sides get a free and fair hearing, and the will of
the employees work out. I think that is exactly what is
intended, at least I think. And I do not believe that is what
is going on right now. At least it does not sound like it to
Mr. Carew, I want to ask you a question. Could you have
prepared for this, had an informed labor attorney, in one week
and be able to put all this together to present to the board?
Could you have done that in a week's time?
Mr. Carew. It is a scary thought. I just do not know if we
could have done it, and it is done that we get all the
questions answered, that we include everything that apparently
needs to be required, where we were still responding to issues
during that 42 days.
Mr. Roe. So it did not sound like you could, in 7 days, get
this done. I agree with you. I do not think it is possible to
do it in that length of time to get a fair--to get all the
information you need. How much did it cost you, your company,
to--to litigate this?
Mr. Carew. The whole process, it is unbelievable how much
time it took from our family, from my managers, from my
supervisors asking questions, to my employees having meetings
and things to answer questions.
Mr. Roe. Did it--let me interrupt you. Did it help you
create one job? Did it help you--except for the attorneys?
Mr. Carew. It put a lot of stress on everybody.
Mr. Roe. Yes, it did not help you create new jobs.
Mr. Carew. Yes.
Mr. Roe. Mr. Chairman, in your opinion, why is this done?
It sounds to me like it is happening. I mean, a month, 6 weeks
is not very long. Matter of fact, that is light speed compared
to this place when it does anything. So why is it initiated?
Mr. Schaumber. It was results-oriented. The reason was to
limit the ability of the employer to express its views on
unionization, limit the ability of the worker to hear those
views and to make an informed choice.
The only story which the employee is going to hear, or the
predominant story, is going to be the union story. And the
union has very few legal restraints. It can make promises. It
will not hear the other side. Now, this is a very difficult
question. There are good reasons for a union, and there are
good reasons not to have a union.
But some of the reasons not to have the union are reasons
that the employee should hear. For example, the employer will--
will tell the employees that they will not have a direct
relationship any longer. He may tell the employees what this
experience--what this union's experience has been with other
He will tell the employee something they may not know. But
if they want to be a member of the union, they are going to
have to support the union's political and social causes.
Mr. Roe. Let me ask one--my time is short.
But Mr. Getts, why do you do what you did? And when the
neutrality agreement, I understand that, but why did you lead
to vote and have a secret ballot to vote out the union? Why did
you do that?
Mr. Getts. Well, first of all, Congressman, I want to thank
you for your service to your country. I appreciate that.
Mr. Roe. Thank you.
Mr. Getts. The reason I did it, and I am not anti-union
whatsoever, I felt like it was all about the secret ballot
election. Like I mentioned in my testimony, I could have gone
either way. I was ready to go either way. But the secret--when
they came in and forcefully tried to tell us what was good for
us and feed it down our throats, I was deeply offended by that,
and their tactics.
So that is what led to me leading the petition.
Mr. Roe. So that is why you led that petition.
And Mr. Lotito, why do employers employ your firm? Why
would I need you in my business, which is non-union? Why would
I need you?
Mr. Lotito. Many technical reasons. Just to take the case
before the labor board, the chairman, for example, showed the
extensive document with respect to the processes and the
procedures. I think under these proposals, it is going to
become even more critical to have their labor relations
specialist because of the waiver problem that is going to exist
by having the hearing post the election process as opposed to
ahead of the election process.
And the importance of this is critical. Because there was
some discussion earlier, if I could, about the importance of
this for these employees. It is not only for these employees,
but it is for all of the employees that come after them.
Because there is hardly ever a decertification election.
Chairman Kline. I hate to interrupt. The gentleman's time
Mr. Roe. Sorry, Mr. Chairman. Yield back.
Chairman Kline. Mr. Kucinich?
Mr. Kucinich. Thank you very much, Mr. Chairman. I believe
the right to organize and the right to collective bargaining
are lynch pins in a democratic society. They actually hold a
democratic society together, and they help to assure that
workers will not be impressed upon by economic injustice.
I strongly support the National Labor Relations Board's
proposed rule change. The NLRB has a long history of reviewing
and revising its procedures in order to make resolution of
union representation cases more efficient. These proposals are
a result of the board exercising its congressionally-appointed
responsibility under the National Labor Relations Act.
And the changes would bring forth a greater formality and
certainty to the process for both employees and employers,
forcing workers who seek to assert their right to collective
bargaining to wait an average of 124 days after filing a
petition for an election is an injustice that must be
According to the Bureau of Labor Statistics, less then 7
percent of American workers in the private sector are union
members. There is a clear link between our suffering economy
and the low, and declining, rate of union membership and an
even clearer link to the steady weakening of the middle class.
The proposed changes to election procedures represent progress
towards empowering more workers and giving them a voice.
Now, I read the testimony by Mr. Lotito in which you quote
from a work, and a chapter called ``Employer Speaks Up.'' And
in this quote that you gave, it says in most cases the employee
has not had the benefit of the employer's point of view
between--before signing a union authorization card.
Why would your firm be involved in efforts to try to stop
workers from getting the point of view of the union, when you
are advocating that they have to get the point of view of the
Mr. Lotito. We do not advocate that the employee should not
get the point of view of the union. As a matter of fact, if I
were making the laws I would require that the union provided
the employee, when they ask them to sign a union authorization
card, with a copy of the union's concentration, with a copy of
the union's bylaws, with a copy of the union's track record,
with a copy of the number of first contracts that they have
been able to negotiate, with how those first contracts compare
with the promises that have been made.
Mr. Kucinich. Okay, I have another question.
Mr. Lotito. So would encourage that kind of information
Mr. Kucinich. I am reclaiming my time. Is it not true that
a worker can be fired for refusing to attend a meeting that is
held by the employers to provide the employers'--quote--
``perspective'' on organizing?
Mr. Lotito. There is case authority that supports that
position, but it is something that we always advise our
Mr. Kucinich. Was it true or not? You are an attorney.
Mr. Lotito [continuing]. Clients not to do.
Mr. Kucinich. You can answer yes or no.
Mr. Lotito. I am sorry?
Mr. Kucinich. You can answer yes or no. Is it true?
Mr. Lotito. Yes, it is true.
Mr. Kucinich. Okay, so----
Mr. Lotito. I am just trying to provide you with a totally
unbiased answer, sir. [Laughter.]
Mr. Kucinich. I think that is noteworthy. You know, you
mention in your remarks the constitutional principles of free
speech and assembly. How does that square with allowing an
employer to require an employee attend and listen to speech, or
respond to questions regarding their opinions on unions?
How is that consistent with free speech? Should----
Mr. Lotito. A union can organize for months and months and
months without even the employer knowing that the organizing
activity is taking place. Under this proposal, if a union, let
us say, has been organizing for a period of 3 months, just to
be somewhat arbitrary in taking a time frame, that would
probably be fairly consistent with what happens in many
The employer is going to have essentially a period of 10,
12, whatever the precise number of days are in order to present
additional information to the employees.
Mr. Kucinich. Well, the bottom line here is that if the
workers are not paying attention to what the employee says--or
the employer says, their jobs can be in jeopardy and their
right to organize is undermined.
Mr. Lotito. No.
Mr. Kucinich. So the question is: where is the free speech
involved? Because free speech also means that I do not have to
listen to what you say.
Mr. Lotito. That is correct.
Mr. Kucinich. I do not have to listen to you. I can ignore
you. I can say, ``I don't want to--don't tell me about that,''
and my job would not be in jeopardy.
Mr. Lotito. The job should not----
Mr. Kucinich. I yield back the balance of my time.
Mr. Lotito. Sir, the job should not be in jeopardy based
upon they do or do not wish to have a union.
Mr. Kucinich. Time?
Mr. Lotito. Because that is discrimination, and it is
Mr. Kucinich. People----
Mr. Lotito. The right of free speech comes from section 8-C
of the National Labor Relations Act, which this Congress
inserted in 1947 after 12 years of forced neutrality from 1935
to 1947. The employer is only----
Mr. Kucinich. Actually, you are right. Free speech comes in
Mr. Lotito. And that is why it had to be clarified in 1947
with Taft-Hartley because there was considerable confusion as
to how the First Amendment applies.
Mr. Kucinich. You are continuing to respond to a question I
did not ask.
Chairman Kline. The gentleman's time has expired.
Mr. Lotito. Thank you.
Mr. Kucinich. Nice seeing you.
Mrs. Foxx. Thank you, Mr. Chairman.
Mr. Lotito. The same, sir.
Mrs. Foxx. I would like to yield my time to Mr. Gowdy.
Mr. Gowdy. I thank the gentlelady from North Carolina. And
I thank the chairman for calling this hearing and for providing
more days of notice for this hearing than would be required
under the new rules that are being promulgated by the National
Labor Relations Board.
Union membership in the private realm is below 7 percent.
It was 35 percent in the 1950s, when election time frames were
not dissimilar to what they are today. But the National Labor
Relations Board had an epiphany that 38 days is too long to
wait for an election.
And I juxtapose that with the fact that a union last week
has already made an endorsement in the 2012 presidential race
that has not even officially begun. Nobody has been nominated,
but yet they have made an endorsement 16 months before the
Chairman Schaumber, let me ask you this. Is the National
Labor Relations Board supposed to be neutral? Are we naive to
think that it is a neutral board?
Mr. Schaumber. It is supposed to be neutral on the question
of unionization. Unfortunately, it is not neutral today.
Mr. Gowdy. Where is the neutrality when you put a poster up
telling employees that they can unionize, but you will not
allow the poster to say that they can also deunionize? Where is
the neutrality there?
Mr. Schaumber. I do not see it.
Mr. Gowdy. Where is the neutrality where you can tout the
perceived benefits of unionization, but you cannot cite where
your union dues go from a political standpoint? How is that
neutral and unbiased?
Mr. Schaumber. It is not neutral or unbiased.
Mr. Gowdy. Can you help this committee walk through the
current constitution of the NLRB? How many members have been
confirmed? How many were recess appointees?
Mr. Schaumber. There are four members. There is one recess
appointee, Craig Becker, who will be off the board in December.
Chairman Liebman's term ends at the end of August. Mark Pearce
is on the board. His term ends, I believe, the following year,
as does Brian Hayes.
There are four members, one current nominee who has not
Mr. Gowdy. And Mr. Solomon, the general counsel for the
NLRB, he has not been confirmed either. Correct?
Mr. Schaumber. No. Mr. Solomon was not appointed by the
president or the National Labor Relations Act. There is a
specific provision for it. He was appointed by the president
under the Vacancies Act. It is believed, under the Vacancies
Act, he can be reappointed, whereas that is not the case if it
had been under the National Labor Relations Act.
Mr. Gowdy. Mr. Chairman,ProfessorProfessor Dau-Schmidt
implied in his opening statement--and I think this is a fair
implication, it is almost a verbatim quote--that the NLRA is
essentially a wealth redistribution statute. That we have to
take money away from the companies because they are making too
much. And funnel more of it to the employees.
Is that the purpose of the NLRA? Is there some statutory
intent that I have missed?
Mr. Schaumber. I do not believe so. The purpose of the
statute is to protect workers' rights. And let me say, there
has been a comment about being anti-union. I do not know of
anyone who is anti-union here. We are not talking about being
anti-union. We are talking about pro-worker and pro the
legitimate management interest in this kind of an issue.
We can all point out, if you will, examples of management
misconduct, examples of union misconduct. But we are not
talking about this here. We are talking about having a fair
Mr. Gowdy. Professor Dau-Schmidt, can you give me some good
reasons not to unionize?
Mr. Dau-Schmidt. I would actually like to respond to your
Mr. Gowdy. I will settle for you answering the one I ask,
which is can you----
Mr. Dau-Schmidt. But you do not want me--you want to ask
other people questions on what I say, but----
Mr. Gowdy. Sure, if we have enough time. If we have enough
time, you are welcome to.
Mr. Dau-Schmidt. All right. All right, so you want me to
give you some reasons not to unionize?
Mr. Gowdy. Yes.
Mr. Dau-Schmidt. I would have to have a context in the
workplace. I cannot think of----
Mr. Gowdy. Well, the gentleman--the gentleman on the end,
Mr. Lotito--has been excoriated in his interest in being even-
handed and fair. And he is given reasons to both unionize and
not to unionize. I am just wondering whether or not you can
cite any reasons not to unionize.
Mr. Dau-Schmidt. Any reasons not to, in the current
economic environment. I would have to say no.
Mr. Gowdy. No, not a single reason----
Mr. Dau-Schmidt. I actually think----
Mr. Gowdy [continuing]. That a voter should vote not to
Mr. Dau-Schmidt. Unless I have a context for a specific
workplace, I do not see how I can answer the question. But I
Mr. Gowdy. Well, let me ask you this question. Can
employers factor in work stoppages and their decision on where
to start a new line of work?
Mr. Dau-Schmidt. Now, if you are talking about the Boeing
Mr. Gowdy. I did not say what case I was talking about. I
am asking you generically.
Mr. Dau-Schmidt. The implication of what you said, which
Mr. Gowdy. I am asking you generically. Can employers----
Mr. Dau-Schmidt. The implication is yes, they can take cost
into account when moving. But they cannot actually actively act
to discriminate against people because they exercise their
collective right. And----
Mr. Gowdy. Right. How many jobs----
Mr. Dau-Schmidt [continuing]. Wait for the board to
Chairman Kline. The gentleman's time has expired.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Holt. Thank you, Mr. Chairman. To try to bring some
balance to the discussion here, you know, I would like to
direct my question, preceded with some comments, to Mr. Dau-
It is interesting that they say unions win two-thirds of
the votes, but 35 percent of petitions are given up. So really,
when you look at the big picture, it is remarkable that
organizing ever succeeds, it seems to me.
The 32BJ of the SEIU in New Jersey sent me a letter saying
they like this rule to streamline and modernize the union
election procedures. And the state AFL-CIO similarly talked
about the advantages of having electronic filing and modern
But they are making a bigger point. This is not just about
efficiency. It is more than bureaucratic efficiency. The state
AFL-CIO points out that the rules are important because
companies use the average 2-month length of time before an
election to hire union busters to run anti-union propaganda
campaigns to harass and illegally fire supporters.
So this gets, I think, to the bigger point of what we are
talking about here: that challenging everything does more than
make it easier to delay and deny forming bargaining units. It
really creates opportunities for abuse and a climate that is,
well, as you said, less respectful of the law.
Now, you know, regarding opportunities for abuse, the other
side will say, ``Well, yeah, unions will abuse this time.'' The
only abuse we heard actually discussed here was that unions
sometimes spread misinformation. If so, that would be
unfortunate and certainly hard to defend.
But employers are able to penalize workers through onerous
work assignments, cutting wages, layoffs, contracting out,
threatening shutdowns, and surveillance, threats, and
harassment of leaders. And you know, in many cases, employers
have targeted those who were election observers or witnesses at
This is not an even playing field. And it seems to me these
regulations are a good, but small, step toward a more even
playing field. But what I would like you to expand on, and I am
sorry I have taken some of the time that I would like to hear
from you about, is in addition to workers being threatened with
plant closing, which occurs in 57 percent of campaigns, or
workers being interrogated about how they are going to vote in
64 percent of the campaigns, I would like to hear you say a
little bit more about what this does for respect for the law,
and how this changes the climate in America.
Mr. Dau-Schmidt. Well, this actually goes to the comment I
wanted to make with Representative Roe, when he spoke about the
benefits of private ballot elections. And, you know, we could
have a completely separate hearing about secret ballot
elections versus neutrality agreements.
But certainly these rules are to amend the secret ballot
procedure. And if you want people to use the secret ballot
procedure rather than be in situations where they have
neutrality agreements like Mr. Getts was in, you would want
this system to work well so that people will work this.
As I mentioned in my written testimony, in the 1990s unions
started to consciously abandon this process because it was so
subject to abuse. And it is not the typical--it is not, you
know, 90 percent of the cases or 80 percent of the cases--but
it is a significant number of cases where employers can use the
process to delay and intimidate employees.
And that is why unions have started--have started to
abandon it. The stat I gave you--and I--I spent some time
looking at the various people that have studied this--is about
approximately half of the employees who organize now are
organized outside of this process.
So if you want to bring them back in this process you need
to make it work. Now, in terms of updating electronic filings
and things like that, under the current processes I do not
think my daughter would ever get notification of any of this.
Because if it is not electronic she does not pay attention to
So for us to leave the board with a process where employers
file things with the board, the board sends it to the union,
the union files things with the board, the board sends it to
the employer--and they use the mails to do all that--is just
Mr. Holt. And to give these things electronically, the
names and addresses and so forth--things the company already
has--there is nothing violating privacy there, is there?
Mr. Dau-Schmidt. No.
Mr. Holt. Thank you.
Chairman Kline. The gentleman's time has expired.
Mr. Gowdy, your time?
Mr. Gowdy. I thank the chairman.
Professor Dau-Schmidt, can an employer consider work
stoppages as it contemplates where, or if, you start a new line
Mr. Dau-Schmidt. You can consider labor costs.
Mr. Gowdy. Can it consider the fact that there have been
work stoppages which have led to a prominent customer saying it
would elsewhere for its airplanes?
Mr. Dau-Schmidt. If it affected labor costs.
Mr. Gowdy. Can it consider the fact that they are paying
fines for delays in getting the airplanes to the customers?
Mr. Dau-Schmidt. Fines to the customers and sellers?
Mr. Gowdy. Sure.
Mr. Dau-Schmidt. Okay. That--if it affected labor costs.
They are allowed to take into account costs in deciding where
to locate. They are not allowed to punish people for engaging
their collective rights.
Mr. Gowdy. Do you----
Mr. Dau-Schmidt. That is a question that will be determined
when Boeing is actually heard.
Mr. Gowdy. I have not mentioned Boeing. I had not mentioned
it a single time. [Laughter.]
Mr. Dau-Schmidt. I can draw the lines.
Mr. Gowdy. I may be one of the few people here who had not
mentioned the name yet. I am curious. Since you have mentioned
Boeing, do you know whether or not new workers were added in
Mr. Dau-Schmidt. I do not know.
Mr. Gowdy. If I told you that 2,000 additional workers
were--were added in Washington State, where is the
discrimination? I think more states would like to be
discriminated against if a company adds 2,000 jobs.
Mr. Dau-Schmidt. I am happy to defer to the board until
they actually find the facts in that case. But since you are
asking a hypothetical, if instead of 2,000 they would have
added 3,000, absent discrimination, then there would still be
an unfair labor practice.
Mr. Gowdy. So the employees have been elevated to the
Mr. Dau-Schmidt. Adding 2,000--or adding 2,000 would be
worse than adding 3,000, would it not?
Mr. Gowdy. Well, you just told me we can consider labor
costs, we can consider work stoppages, we can consider the fact
that customers are going to go to another airplane
manufacturer. I am having a hard time seeing the cause of
action in this case.
Mr. Dau-Schmidt. Back to letting the board develop the
facts, sir, we are entirely in hypothetical-land here. But if--
Mr. Gowdy. Well, what we are not hypothetical about----
Mr. Dau-Schmidt [continuing]. If the board came in and
showed--I am answering your question. If the board came in and
showed the economies of scale were such that it would actually
be cheaper to put it out in Washington, and the employer in
fact made statements like is alleged here--that they were
moving them because of the collective action--that would be an
unfair labor practice.
Mr. Gowdy. Well, let me ask you this. Is it okay to think
it, but just not say it? Is that where the executives got in
trouble? Because it is okay to think it, it is okay when you
are going through the calculus of where to start----
Mr. Dau-Schmidt. I guess you can think about murdering
people, but you are not allowed to actually do it.
Mr. Gowdy. It is not a crime. It is not a crime to think
about it. It is not even a crime to say you are going to do it.
You could sit here and say you are going to murder me this
afternoon. That is not a crime.
Mr. Dau-Schmidt. I think security would rush in and----
Mr. Gowdy. They might----
Mr. Dau-Schmidt. I would not venture to do that, Mr. Gowdy.
Mr. Gowdy. They might be. I would be the first one to say
find in the criminal code where it is a crime to do that. So
what my point is this. Well, let me ask you this. Have you
considered the remedy that was sought by the NLRB in this case?
Mr. Dau-Schmidt. I am still letting the case develop, but I
Mr. Gowdy. Look, that is a fact question.
Mr. Dau-Schmidt. If it is fact they are discriminating
against employees based on their exercise of collective action,
there should be a remedy.
Mr. Gowdy. Have you considered the remedy asked for?
Mr. Dau-Schmidt. Yes.
Mr. Gowdy. Which was what?
Mr. Dau-Schmidt. It is--a line back in Washington.
Mr. Gowdy. So they want to get rid of the thousand
employees who were hired in South Carolina, shut down a
billion-dollar facility to send it back to Washington State.
Mr. Dau-Schmidt. That would be the only way to make the
employees in Washington whole, yes.
Mr. Gowdy. So you support that remedy?
Mr. Dau-Schmidt. Yes.
Mr. Gowdy. Wow.
Mr. Lotito, have you ever had the pleasure of practicing
criminal law or civil law outside the realm of labor?
Mr. Lotito. No, sir. But I might, if I could. Based upon
what we heard--a few, yes. Based upon what we heard a few
moments ago, I think that those people in South Carolina have a
darn good reason of deciding that perhaps they do not want to
have a union.
Mr. Gowdy. I think there was one in South Carolina and they
voted to deunionize.
Mr. Lotito. I believe you are correct. I believe they were
Mr. Gowdy. Of course, we cannot put that on the posters,
can we? We cannot inform them of their right to deunionize.
Have you ever heard of a criminal case in which you decided to
board our juries after the verdict came?
Mr. Lotito. No, sir.
Mr. Gowdy. How about having motions to suppress after the
Mr. Lotito. No, sir.
Mr. Gowdy. How about challenging whether or not there was
an involuntary confession under Miranda after the verdict came?
Mr. Lotito. No, sir.
Mr. Gowdy. Why is everything being moved post election
under this proposed promulgation of rules?
Mr. Lotito. I think the professor summed it up very well.
He cannot think of a single reason why people should not be in
a union today. And there are individuals who believe that our
country would be better off if we were back up to 35 percent of
union representation in the country.
I think there are many people who believe to the depth of
their being that it would be a better, quote, unquote--
``distribution of wealth.'' I can respect that point of view. I
may disagree with it, but essentially that is what we did in
the Wagner Act from 1935 to 1947. We did have a bias. We did
say we are going to encourage the practice and procedure of
And in 1947, we trumped that bias by saying the board has
to be neutral. Because employees have the right to choose and
they have the right not to choose. And that has to be----
Chairman Kline. The gentleman's time----
Mr. Lotito [continuing]. Based upon information.
Chairman Kline. The gentleman's time has expired.
Mr. Gowdy. Thank you, Mr. Chairman.
Chairman Kline. Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chairman. Mr. Chairman, I ask
unanimous consent to enter into the record a statement from one
of my constituents who is engaged in an effort to organize a T-
Mobile workplace in my district.
[The information follows:]
Prepared Statement of William Reitz, T-Mobile USA Worker
My name is William Reitz and I am currently employed at T-Mobile
USA in Long Island, New York. I appreciate having the opportunity to
share my story, and that of my coworkers, with this Committee as it is
relevant to the issues you are discussing aroundthe much needed update
of the rules that the National Labor Relations Board (NLRB) is
considering. In my experience, T-Mobile USA has abused the current
rules at great cost to me, my fellow employees and the American
taxpayer, and their behavior as a company is an example of the
desperate need for change. They have used delay tactics to give the
managers time to coordinate attacks on the union we are trying to join,
threaten our jobs and our benefits, and even try to gerrymander our
bargaining unit for the election. After several months of this verbal
and emotional assault, I still stand firm in my commitment to gaining a
voice at work. What I am asking for is a fair chance to vote.
On May 26, 2011 with the support of the Communications Workers of
America (CWA), my co-workers and I filed a petition for a union
representation election among T-Mobile USA technicians in Long Island,
NY. Our bargaining unit has 14 workers. At the same time, fellow T-
Mobile technicians in upstate New York and Connecticut filed for a
union representation election as well. Immediately after we filed our
petition T-Mobile USA management initiated a campaign of delay at the
NLRB by requesting hearings and simultaneously using threats and
pressure tactics to intimidate me and my colleagues from organizing and
joining the union of our choice.
The issues for which T-Mobile USA management has requested hearings
are frivolous and were only requested in order to delay the union
election. In their filing with the NLRB, the company is arguing that
the work locations filed for by the workers are too small and that the
Long Island workers should be included with technicians from Brooklyn,
Manhattan, Bronx and Queens because they claim it's a more accurate
reflection of the market we serve. In reality however, in determining
assignments and workflow, we, the technicians from the Long Island
market, are never sent to these other parts of New York City.
Management's sudden claim that we are now part of a larger market is
only designed as an attempt to further delay the election.
But this isn't their only effort to delay the election. They've
gone so far as to challenge the Communications Workers of America (CWA)
as a legitimate labor organization as named by the workers as their
choice for the election. They claim that because CWA listed its
affiliation with TU, the acronym for a joint partnership formed by the
Communications Workers of America (CWA) and the German union, ver.di,
that represents Deutsche Telekom (DT) (the parent company of T-Mobile
USA) workers in Germany, in the filing, that it is not a legitimate
labor organization. Such an affiliation is no different then previous
filings where CWA has listed its affiliation with the AFL-CIO. This is
nothing more than an attempt to request a hearing to determine the
legitimacy of CWA to represent us in order to further delay our
In New York, the NLRB hearings have so far run five long days. We
do not yet have a date set for our union election even though we filed
for one well over one month ago. Nor is there yet a resolution to the
claims the company made at the hearings. At those hearings, management:
Refused to agree to an immediate election.
Claimed that Long Island is not an appropriate unit.
Challenged the workers' chosen bargaining representative,
CWA-TU, despite years of working with TU leaders through ver.di, the
union representing T-Mobile and Deutsche Telekom workers.
While I and my fellow coworkers on Long Island have faced these
delay tactics by T-Mobile USA management, management has engaged in the
same delaying tactics and filing of frivolous complaints for the
election filed by my T-Mobile USA colleagues in upstate New York and
In Connecticut, the company is challenging the jobs included in the
unit, trying to add some professional jobs to the eligible voters, even
though technicians-only bargaining units are the norm and there are
precedents in NLRB proceedings that demonstrate that units that include
only technical workers are entirely appropriate. In fact, 10 years
earlier T-Mobile's predecessor company agreed to the Connecticut
bargaining unit containing only technicians.
Instead of deferring to the NLRB about the appropriate bargaining
unit, T-Mobile has engaged in lengthy challenges. Even though the
Connecticut NLRB ruled to recognize CWA-TU as a labor organization and
determined that the professional engineers would not form part of the
bargaining unit as requested by the T-Mobile USA management, the
company management requested a reconsideration of the Board's findings,
again causing additional delays in reaching a final election date.
In their request for reconsideration of the determination, T-Mobile
USA is asking to include 5 professional engineers in the voting pool.
This is an exceptional step in U.S. law. First, these 5 professionals
never asked to join the union or have a vote. Second, under U.S. labor
law, because they are professionals, they must first vote to be
included in the same bargaining unit as the technicians; then they can
vote on union representation. The employer is effectively asking the
professionals to vote YES (to be in the unit of technicians) so they
can vote NO to the union. In fact, the NLRB already has respected the
choice of these professionals not to join the union by not including
them in the original voting pool. The absurdity of what T-Mobile must
ask these professionals to do (vote yes to vote no) underscores why its
request will not be upheld. The sole goal of this request for
reconsideration over the composition of the bargaining unit is to
provide more time for management to create confusion and intimidation
in the workplace, to prevent the counting of ballots, and to delay
These frivolous claims that the company is making in the pre-
election hearings have created a delay of, at this point, more than 3
weeks. While we continue to wait as our fundamental right to a timely
election procedure continues to be delayed unnecessarily, T-Mobile USA
management has made good use of this time. This long delay has allowed
the management time to design and implement a strategy of daily
delivery of anti-union messaging. While on company time we have been
obligated to listen to management meetings and conference calls in
which they made claims that we believe to be inaccurate about our
chosen union. Some of those claims include:
Gross exaggerations about union dues and their use;
Statements that workers would lose existing benefits if
Suggestions that if unionized the company would be forced
to fire anyone who did not want to work under a union contract;
Managers also told us that ``It's in the company's and in
the workers' interest, not to join the union.'' And that the union is
``a third party and won't represent the workers' interests.''
We receive daily messaging from the company in its attempt to
persuade us to cease from seeking union representation.
Supervisors have suggested that management will retaliate
against workers if the workers elect to have a union.
Supervisors hinted that if workers gained union
representation, the company will either force technicians to stop home
garaging their vehicles or it may change how they calculate personal
mileage. This is an important part of our work and these types of
threats matter to us.
Again, this situation is not unique to us on Long Island. My
colleagues in upstate New York and Connecticut are also being subjected
to a daily barrage of anti-union messaging from T-Mobile USA
management. It's abundantly clear to us that the company is only
engaged in this effort--the filing of frivolous complaints, and
requests for appeals, in order to buy enough time to continue with an
intimidation campaign of me and my colleagues as an effort to prevent
us from exercising our right to organize and bargain collectively. We
want to exercise our legal right, in a timely and efficient manner, to
decide for ourselves through the established election process whether
or not to join CWA. This process of delay and intimidation being
exercised by T-Mobile USA management is wrong and should not be allowed
to happen now or in the future.
I want to thank Congressman Bishop and the Committee for giving me
this opportunity to share my personal story. I also want to thank my
fellow technicians for their belief that in order to make our company
better and our lives better, we will continue to fight for a voice on
Chairman Kline. Without objection.
Mr. Bishop. I appreciate that, Mr. Chairman. Let me quote
The gentleman's name is William Reese. ``In my experience,
T-Mobile USA has abused the current rules at great cost to me,
my fellow employees, and the American taxpayer. And their
behavior as a company is an example of the desperate need for
``They have used delaying tactics to give the managers time
to coordinate attacks on the union we are trying to join,
threaten our jobs and our benefits, and even try to gerrymander
our bargaining unit for the election. After several months of
this verbal and emotional assault, I stand firm in my
commitment to gaining a voice at work.''
``What I am asking for is a fair chance to vote. What I am
asking for is a fair chance to vote.'' I would suggest that is
the essence of our democracy, a fair chance to vote.
Now, Chairman Schaumber, one of the tactics that is being
used in this particular organizing drive is a request on the
part of T-Mobile to request a hearing to determine whether or
not the Communication Workers of America constitutes a
legitimate labor entity.
Now, that is a union that has existed for decades. My
father was a member of that union, and he is long retired. It
represents hundreds of thousands of workers. Would you consider
such a request for a hearing to determine if that union is a
legitimate labor entity to be a reasonable use of the board's
time and taxpayer money?
Mr. Schaumber. I do not want to be unfair to T-Mobile, but
I would give it pretty short shrift. In other words, I would
Mr. Bishop. May I infer from that response that you would
consider that to be a delaying tactic on the part of T-Mobile?
Mr. Schaumber. Yes. But let me say me say, Congressman,
there are not instances cited by the majority of delayed
preelection. And my experience is they very rarely, if ever,
happen. The dissent only mentioned one, and that was not
analyzed by the majority.
Mr. Bishop. Let me try it a different way. In the
chairman's opening statement he indicated--I believe I am
quoting him exactly--``Any party causing a needless delay
should be held accountable.'' Is that a pretty close quote, Mr.
Chairman Kline. You want to read it again?
Mr. Bishop. ``Any party causing a needless delay should be
Chairman Kline. That is your quote.
Mr. Bishop. No, no, I am quoting you, sir. Would you
believe--now, I think we are establishing that this constitutes
a needless delay. I think that for CWA, any reasonable person
would say that that is a legitimate labor entity. Let me get to
If we are to hold any party that is causing a needless
delay accountable, is not the proposal in the proposed rule to
consolidate hearings a reasonable means of holding a party
accountable that is causing a delay?
Mr. Schaumber. I do not believe so. Because you are talking
about the exception to the rule. I do not think you can
establish your whole system on these exceptions. And the
majority, by the way, never justified what it is doing by
identifying exceptions and by analyzing them.
Mr. Bishop. Let us just stay with this example.
Mr. Schaumber. Okay.
Mr. Bishop. If you were still a member of the NLRB, what
would you consider a reasonable remedy to hold a T-Mobile, or
others of its ilk, accountable for this kind of unreasonable
Mr. Schaumber. There are no remedies under the statute. I
think I may comment on it in a footnote. And if it truly was a
frivolous issue I think I could comment on it fairly strongly.
Mr. Bishop. But the fact that there are no remedies in
existing law, does that not build the case for why it is we
need the kind of proposed remedy that is put in place by this
Mr. Schaumber. No. Because once again, we are talking about
outliers. When I became chairman, I asked for a list of cases.
There was not a request redo. That is preelection pending.
There were 16 post election challenges and objections, for
within the last few months. Eleven were the last year.
None of them could not be decided because we did not have
sufficient members on the board to decide them. It had nothing
to do with the election process. There was one case,
unfortunately, a 2004 case that was not decided upon until, I
think, last year. But there particular circumstances there.
But again, we are talking about the outliers. We are not
Mr. Bishop. I have about 5 seconds left.
Mr. Schaumber. Okay.
Mr. Bishop. Mr. Dau-Schmidt, would you--I know you wanted
to comment on the allegation that you were proposing a
redistribution of wealth. Would you care to take 5 seconds to
comment on it?
Mr. Dau-Schmidt. Actually, there is a purpose section right
in the National Labor Relations Act that Mr. Gowdy wanted to
look at that says the purpose of the National Labor Relations
Act is to promote industrial peace and equality of bargaining
power between employers and employees.
And back when it was originally passed in the 1930s there
was a conscious idea that if employees had free choice they
would choose unions. If they had equality of bargaining power
they would gain higher wages. And that that would actually be
good for the economy and help get us out of the Great
So that is, in fact, part of the purpose of the act.
Mr. Bishop. Thank you, Mr. Chairman.
Chairman Kline. Thank you. The gentleman's time has
Mrs. Roby. Thank you, Mr. Chairman. I want to go back to
this discussion that we were just having. Mr. Schaumber, what
is the average time between the petition and the representation
Mr. Schaumber. Between--today?
Mrs. Roby. Right now.
Mr. Schaumber. Well, it is measured by meeting in time. It
is 38 days, meaning 50 percent are conducted before--38 days or
before, 50 percent after. Ninety-five percent of the elections
are conducted within 56 days.
Mrs. Roby. So how many cases are delayed, and by how long?
Mr. Schaumber. There is no analysis of that by the
majority. The dissent mentions one preelection case. And the
dissent mentions three post election cases which I mentioned
earlier. We are really talking about a very, very small
universe. In fact, I would say a tiny universe.
Mrs. Roby. Right.
Mr. Schaumber. But the point here is, it has not been
analyzed at all by the majority as justification for the rules.
Mrs. Roby. So in the rare cases, the time between a
petition election--the petition and the election can be
significantly longer, as you have indicated. What is the source
of these election delays?
Mr. Schaumber. I believe one of the sources of preelection
delay is when the union files a blocking charge seeking to stop
an election because of unfair labor practices. That was not
analyzed by the majority. The majority did ask for comment on
That is the only thing that I know of. There may be unique
and unusual circumstances which may have caused a particular
case here or there to be delayed as long as they were.
Mrs. Roby. So the exception, not the rule?
Mr. Schaumber. Very much the exception.
Mrs. Roby. So do any of the proposed changes to the
election procedures in this proposed rule alleviate these
Mr. Schaumber. Well, we do not know that because they have
not identified the problem, you know, and they have not
analyzed or attempted to analyze that tiny universes of cases
in which there has been delay. In fact, I think that the sum
total of these rules is you are going to have far fewer
preelection agreements, you are going to have more hearings
that the employer is able to pull his act together and identify
issues and file a statement of position.
And you are going to have, after the election, many more
elections set aside based on decisions being made by the board
which should have been made preelection.
Mrs. Roby. Thank you very much. I want to circle back. I
know there was a lot of discussion in my absence about the
proposed rule requirement with email addresses. And I want to
ask Mr. Lotito, are they any legal implications to providing
the unions with employee email addresses and phone numbers.
Mr. Lotito. Well, I think that there are privacy issues,
for sure. And on the proposal, the way I read it, they do talk
about email addresses. I am not clear, based upon the proposal,
whether the board is talking about home email addresses or
company email addresses.
I think that that is something, regardless of I think there
is privacy issues on both. But I think that that is an
important distinction. And if the board's intent here is to
also ask for company email addresses, that, it seems to me, is
going to be an easement on the Register Guard decision that the
board issued a few years ago with respect to the utilization of
Because once you get over the issue of whether or not they
should provide the email address, the next question is it seems
to me that if the union's going to use it the board's going to
have to reverse Register Guard. And then you get into a whole
series of questions over a period of the 10 days how often is
the union going to be able to communicate.
What can they send by email? Can there be attachments? You
can see that there is a whole host of very practical issues
that are going to flow from this, and I do not think what they
wrote is clear. But that just may be my deficiency.
Mrs. Roby. Thank you very much.
Mr. Carew, are you concerned that this proposal will force
you to spend even greater resources on union elections, when
these resources in this time could be better spent expanding
your business and creating new jobs for workers?
Mr. Carew. Thank you. As a small business owner, do not
forget about us. We create jobs, too. And I am just so
concerned about this process that has become too short, too
difficult to comply with, such that we will not have an
informed legal and fair vote for everyone.
I am very concerned about it.
Mrs. Roby. And particularly in this time, when we know the
number one issue in this country is job creation. And yet, once
again, this heavy hand, where those resources could go back
into job creation in this country. So thank you for your
Thank you to you all being here today. And, Mr. Chairman, I
Chairman Kline. Thank the gentlelady.
Ms. Hirono. Thank you, Mr. Chairman. It is hard not to
notice that there are no union workers testifying at this
hearing. So we have heard from the testifiers who are against
these proposed changes. And I appreciate your views, except for
I did want to refer to a statement that I have from our
Brian Bixby. He is with the Transfer Workers Union of America,
Local 721 in Las Vegas. And he talked about his efforts to form
a union in 2007 where he worked. I will not go through all of
his statement, of course, but they filed their petition for an
election in 2007 November.
The election was supposed to occur in December. It was
delayed until mid-December, and he certainly does not know why.
But while this period of delay was happening, the employer
conducted mandatory captive audience meetings, sent letters to
workers' homes criticizing the union, handed out many fliers,
and instituted a new benefit that would help the dealers
financially so that they probably could induce them not to vote
for a union.
Many of his coworkers were from other countries, and they
were threatened that they could lose their citizenship and be
deported if they supported the efforts to form a union. And the
union did get formed, with 84 percent of the people voting for
it. This was, I assume, in 2007.
The union was certified, but they are still trying to
bargain for a first contract. I think it would have been great
to hear from those who are attempting to form unions as a valid
part, or an important part, of what we are talking about today.
We also heard testimony that there is definitely a decline
in union density in the private sector, and I think that was
Chairman Schaumber who said that. That it declined from 35
percent in the 1950s to 7 percent today. Perhaps one of the
reasons that is happening is because unionization, the process
itself, is fraught with all kinds of problems which, I think,
these proposed rules seek to address in some way to make the
In fact, I am looking at the summary of these changes that
are being proposed to the process, and I am looking at this
modernizing the process by allowing people to file information
electronically. That does not sound terribly onerous. Even as
to the time frames that Chairman Schaumber referred to,
generally in most of these cases, and correct me if I am wrong,
that between the parties there can be a lengthening of the
It may require the administrative entity to agree to it,
but these kinds of accommodations are made usually in all kinds
of hearings of this nature. You are not----
Mr. Schaumber. Excuse me. I am afraid the rule is pretty
strict with regard to the hearing in 7 days, the requirement to
statement of position.
Ms. Hirono. Are you saying that there can be no----
Mr. Schaumber. Absent extraordinary circumstance.
Ms. Hirono [continuing]. Room for agreement as to
Mr. Schaumber. No. It is, absent extraordinary
Ms. Hirono. Do you agree with that, Professor Dau-Schmidt?
Mr. Dau-Schmidt. I actually--that is not the way I read the
rules. I mean, he does bring up the clear exception, which is
extraordinary circumstances. So the board can always extend
that period under that rule. But if you had an agreement--in
other words, these rules do not prevent the parties from
agreeing to the conduct of the election.
And they could agree to a different time period, as far as
I am concerned, under these rules.
Mr. Schaumber. That is absolutely incorrect. There is no
room for the parties to agree to the timing of the election. It
is set by the regional director. It is not set by the parties.
And the regional director must comply, and must do so
consistent with the rules.
Ms. Hirono. Well, obviously we have a difference of opinion
on the panel so I would have to look at the rule myself. But
generally, in these kinds of proceedings, nothing is set in
concrete. I am also a lawyer, in these instances that often the
parties can agree to a lengthening of time.
So it would be rather astounding to me that such would not
be the case. I think that it is very clear that we should all
be concerned about wanting to streamline administrative
procedures and hearings. And, in fact, the majority has made it
a point to reference us to all kinds of regulations that they
deem to be overreaching and unfair.
But as I said, when I look at the description of the
current practices and the procedures and what is being proposed
in these rules, nothing terribly untoward, as far as I can see,
is happening here. That this is a board that is trying to
streamline the process, and make the administrative process a
So, you know, obviously you disagree that----
Chairman Kline. The gentlelady----
Ms. Hirono [continuing]. That our panel disagrees except
for one member of the panel. But I would suspect that if we had
other people who are here with other views, we would get a more
fuller picture. And I see my time is up. Thank you very much.
Chairman Kline. The gentlelady's time has expired.
Mr. Kelly. Thank you, Mr. Chairman. And thank you for
holding this meeting.
I just want to clear up a few things. First of all, Mr.
Getts, you are a former union member.
Mr. Getts. Correct.
Mr. Kelly. Okay. So we do have somebody on the panel that
has actually been a union member. And if I were to look at the
NLRB's boards, I know we want everything to be equal. There's
three Democrats and one Republican on the NLRB board. Is that
Mr. Dau-Schmidt. Yes, that is correct.
Mr. Kelly. So as far as the way things are structured,
sometimes it comes down to who is the majority.
Mr. Schaumber. I had a different take on it. I think that
both management lawyers and labor lawyer--union-side labor
lawyers are impacted by their experience. But there is a
difference between a union-side labor lawyer that is on the
board, particularly under current circumstances where there are
so many comments made by organizations, by organized labor,
that they are there to serve their interest.
That never happens with regard to a management-side
attorney. I have never heard anyone in management or an
employer organization ever say that. And if they did, I would
take personal offense to it.
Mr. Kelly. Okay. Well, you know what? The title of today's
hearing is ``Rushing Union Elections: Protecting the Interests
of Big Labor at the Expense of Workers' Free Choice.'' So I
want to make sure. Because I think one of the things that truly
makes America exceptional is, we really do have a great
emphasis on what is fair.
So I looked up ``fair,'' and fair means marked by
impartiality and honesty, free from self interest, prejudice,
or favoritism. And if you look at that term then, today's
hearing is not about unions or about the employers. It is about
is it fair to everybody concerned.
It kind of goes back to a--I belonged to Rotary for awhile,
and that was one of their themes was is it fair to all. And I
think what bothers me is--and I look at this, and I am trying
to understand. And I am going to read this because I thought it
really made sense.
In 2010, for all petitions filed, the average time from the
filing of a petition to an election was 31 days. More than 95
percent of all initial elections were conducted within 56 days
of the filing of the election petition. Now, acting general
counsel Solomon has described these results as outstanding.
So--and I know we are in a town where we just always--we
are not satisfied with the very good, we have to make sure
everything is perfect. And I am asking. So what is so wrong
with the current structure that we have to change these things?
What is going on here?
Mr. Schaumber. No case has been made by the majority in
their papers for there being anything wrong. They do not
describe delay, they do not define delay. What they--all they
say is, it isn't taking place soon enough. They do not analyze
those few outlier cases where there has been delay.
Mr. Kelly [continuing]. So the process that is outstanding
right now is not good enough?
Mr. Schaumber. I think the process right now is
outstanding. That is not to say that there should not be some
changes. Such has been suggested with regard to electronic
filings and all that kind of thing. I think those are good
ideas, but what they are trying to change is far more than
Mr. Kelly. Okay, and I appreciate that.
Mr. Carew, I got to tell you I been through the same
situation you have been. I mean, it is easy to talk the talk,
but you have to walk the walk. And now, a lot of people think
of companies as these big entities, thousands of employees and
all kind of revenues and all kind of ability--capital, that is
I went through the same thing. And when this happens to a
small business person, these are the people that you work with
every day. You have grown up with them, you have been to
baptisms, you have been to first communions, you have been to
funerals, you have been to all these things.
And all of a sudden, from out of left field, you get
something in the mail that says, ``Hey, your people want to
organize.'' Say, ``Why?'' And I think what it does is, and what
we are missing the point on, is it really does turn your world
upside-down. This is nothing about unions, by the way. Listen,
this is a law that has been in effect for 76 years.
I am not debating that, but I am telling you as an
individual that has been through it and you know your people,
and all of a sudden a new day dawns and your whole world is
turned upside-down. I think your story is incredibly important.
And the whole country needs to hear that. I am not anti-union,
but I do say it does turn your life upside-down. Been through
Mr. Carew. Well, thank you. When I was so fortunate to come
here today, I received several emails from my colleagues
thanking me, and telling me that this is such an important
issue to them. And that it is so important that our industry
and our type of businesses that our feelings be heard. And our
experience with our campaign was that we needed every minute we
And I think because of that we had an informed decision
made. And I am just so concerned about with shortening this
process how that could affect us in our abilities to our
employees to make an informed decision.
Chairman Kline. Then gentleman's time has expired.
Mr. Kildee. Thank you very much, Mr. Chairman. First of
all, in the interest of full disclosure, I have to disclose
that I was a member of the IBEW, and climbed many a manhole
with the CWA in Flint, Michigan. So I welcome you here. It does
give me a--maybe a perspective that others may not quite have.
But I still, nevertheless, try to be very objective. I have
seen the pendulum. I was born in 1929. I remember very well the
sit-down strike in Flint, Michigan in 1936-1937. The pendulum
has swung. Back in those days, really, unfortunately the weapon
of choice very often was a weapon. This is why we have come a
But sometimes the pendulum tends to swing back. The
pendulum of choice for General Motors was Pinkerton detectives,
the largest single contractor of Pinkerton detectives. And they
were interspersed with the workers at the Buick motor plant in
And the pendulum of choice at Ford was Harry Bennett and
those he would hire, most of those whom came from Jackson
Prison. That is where Walter Reuther was horribly beaten up on
the Battle of the Overpass. Thank God came along the
enforcement of the Wagner Act. And the Wagner Act worked quite
It was amended, of course, by Taft-Hartley and the Landrum-
Griffin. But we have seen the pendulum swing back and forth.
And I think what the NLRA is trying to do here is try to jiggle
it just a bit, but it is a small jiggle to try to give some
voice to labor.
Compared to Taft-Hartley and compared to Landrum-Griffin,
this is just a little jiggle. A little jiggle, and all of a
sudden you think that the economy of the United States is going
to collapse because of this little jiggle. It is nothing
compared to the Taft-Hartley or the Landrum-Griffin bills.
Now, my dad went to work for Buick in 1916. When he went to
work for Buick, it was before unions, and you were very often
fired if you talked about unions. By 1916, he could not even
dream of buying that which he produced. He could not dream of
buying the automobile.
But when he retired in 1950, the first retiree group from
General Motors, the same week that he retired, he bought a
brand-new Buick, and that was, to a great extent, because of an
equitable wage that he received from General Motors. All we are
asking here--I think both sides, hopefully they are asking--is
a balance. And I think that's what the NLRA is trying to do.
A little tickle, a little balance. It is not going to ruin
the economy, it is not going to put one group at a severe
disadvantage over the other. It is trying to, as we have done
since 1935 when the Wagner Act was passed. It is gone just a
little. You know, my dad--I am talking a lot here, but there
were so many good questions I will tuck those away to my
answers--when my dad first joined the union--I can recall this
very well because he had to wear his button under the collar.
Because at General Motors, it has changed, thank God. I am
co-chair of the automotive caucus so I worked very hard to help
General Motors survive its problems. But he had to wear it
under his collar, because he would be fired if the--it varied
from one plant to another. But if you were going to be a union
member, you were fired.
I say this to say that the Wagner Act came into being for a
purpose. And the pendulum has swung, you know, hither and
thither. But I do think that we--when we look at what is
proposed here, I really cannot see--and Mr. Carew, you know, I
recognize you are concerned about your business. And,
hopefully, you can hand it on to your children.
And my dad was concerned about his children.
Chairman Kline. The gentleman's time has expired.
Mr. Ross? You are recognized.
Mr. Ross. Thank you, Mr. Chairman. I appreciate this
In following up on my colleague, Mr. Kelly's, comments
about why we are doing this procedure. And when I look back and
I see that according to the acting general counsel, Leif
Solomon, 95.1 percent of all initial elections were concluded
within 56 days, 38 days from the filing of a petition, and some
86.3 percent of all representation cases were within 100 days,
he responded saying this is outstanding.
And Mr. Schaumber, I guess my question to you is that this
is such an outstanding procedure, according to the acting
general counsel, then the shortening of it there must be some
other reason. Would it be that maybe they are trying to start
favoring the unions a little bit more?
Mr. Schaumber. Well, I think the answer to the question is
yes. And I wonder if, Congressman--before, a reference was made
to the number of threats made by employers to close and things
like that. I just would like, if I could, submit to the
record--because one of the underlying things here is a
presumption that unionization has declined because of an
increased number of employer unfair labor practices.
There is no reliable statistical data to support that. And
the person who performed the research, I am sure I will
mispronounce her name, she is at the Cornell School. I called
and asked if I could find out what the--how the research was
performed, if I sent an email.
I never heard back, but I did get this paper from the U.S.
Chamber, which discusses it. And I wonder if I could make it
part of the committee record.
[The U.S. Chamber of Commerce white paper, ``Responding to
Union Rhetoric: The Reality of the American Workplace,'' may be
accessed at the following Internet address:]
Chairman Kline. Without objection.
Mr. Ross. Mr. Schaumber, just to follow up on that because
I had a chance a couple of weeks ago when we were in Charleston
and having a hearing with the acting general counsel of the
NLRB, Mr. Solomon. And he said that, well, you know, he had to
intervene, prevent the intervention of non-union employees from
Boeing into that proceeding, even despite, despite his manual
that says that when an interested party who has a direct
benefit or interest in the outcome of it, the general counsel
is not allowed to intervene on their behalf and prevent them
from coming in.
Even despite his abuse of his own power in that regard, it
seems to me that what we are seeing is a ceding of power from
Congress to the NLRB and other agencies. And my question to you
is that if this rule is promulgated and implemented, is there
anything to stop them from going forward and requiring that
they no longer have a secret ballot?
Mr. Schaumber. They cannot do that. They can certainly
favor the secret ballot. I do know, based on one of their
decisions, they do intend to strip employees of their right to
challenge their employers' voluntary recognition by card check
using a secret ballot.
With regard to the Boeing complaint, when you talk about
expansion, you know, an employer can tell its employees if they
go out on strike it can hire permanent replacements. And--
telling that to its employees does not make the employer's
decision to hire those permanent replacements unlawful.
Essentially, what the general counsel is saying in the
Boeing complaint is that by Boeing saying that one of the
reasons it was going to South Carolina was because--to avoid
the economic consequences of strikes, made their decision to go
to South Carolina unlawful. And that is just not the law.
Mr. Ross. I agree with you.
Mr. Getts, I note that as a former union member, if this
law--if this rule is promulgated, implemented, do you feel it
is going to help inform the union or prospective union workers
any more so?
Mr. Getts. No.
Mr. Ross. In fact, it may work the adverse.
Mr. Getts. Yes.
Mr. Ross. And Mr. Dau-Schmidt, I have got to ask how you
want to respond to something. But I got to ask you because I
read your testimony in advance, and was here for it. But what
strikes me is that we are right now at 9.1 percent
unemployment. We have got 14 million Americans unemployed. The
most pressing issue before Congress right now is the creation
of an environment for sustainable private sector jobs.
Do you feel, in your opinion, that this rule as proposed
will do anything to incentivize the creation of sustainable
private sector jobs?
Mr. Dau-Schmidt. Can I make my response first? Chairman
Schaumber, in the past, exercised his right to disagree with
me. And I just wanted to exercise my right to respectfully
disagree with him, too. In terms of the literature, when you
look at the empirical literature there is good evidence that
employer resistance in the United States and their ability to
resist under the National Labor Relations Act has lessened
union organization in this country.
If you compare Canada with the United States, the paradox
has always been that workers in the United States want unions
more then Canadians do, but the percent organized in Canada has
always been much higher. And the only explanation for that is
that American law is much harsher, and that employers are able
to resist employee organization better under American law.
Mr. Ross. And I appreciate that.
Mr. Dau-Schmidt. Now, on your question as to whether or not
there is anything in here to help the current economic crisis,
I do not think there is anything in here to either hurt it or
help it, frankly. I would like to see--I think we have to look
Mr. Ross. But that is not--I mean, really, let us face it.
I mean, if it is going to put this burden on employers it is
not going to do anything to incentivize them to create jobs.
Chairman Kline. The gentleman's time has expired.
Ms. Woolsey. Thank you, Mr. Chairman.
Mr. Lotito, in your testimony you said something that stuck
with me through this whole time. And that was that there was
nothing in the new bill to protect the employer. I am really
unsure what you mean. Are you talking about the employer being
protected against their workers, against simpler process,
against moving into the 21st century electronically?
Protecting employers from not being able to coerce and
threaten and intimidate voter--their labor voters, or infuse
unnecessary conflict and disruption into the workplace? I do
not know what they need to be protected from. I was a human
resources director for 10 years, a company that grew from 13 to
over 800 employees.
And I always--surprise, surprise to everybody--thought my
job as the human resources director--I called my department the
people department, so you can imagine. I knew my job was to
make sure that the employees did not lose out.
So what is it that we need to protect the employer from?
Mr. Lotito. Three things, if I could. First, thanks very
much for representing me for the last 20 years because I live
in San Rafael. And I wish you well in your retirement. Enjoy
Secondly, we share a common background because in 2000 I
was the chair of the Society for Human Resource Management and
have dealt with human resource professionals for much of my
career. The third point is, I do not have any recollection of
saying that there is nothing in here to protect employers.
Ms. Woolsey. You did.
Mr. Lotito. If I did that, I am not grasping the context
that you recollected I said it in. I think the thrust of what I
have been saying here is that if the employee--which, to me, is
really what the statute is all about--it is really not about
unions and employers in the sense that they are not making the
fundamental decision to join the unions.
It is about the employee making that decision. I believe
that that decision should be based upon a full record, much as
you are trying to develop here today. And I believe that if
this proposal that the board is making goes into effect that it
will substantially impair the ability of employees to have a
full record before they ultimately decide to unionize.
Ms. Woolsey. Okay. And I work for you, but I disagree with
you totally on----
Mr. Lotito. That is all right. Most of the time I disagree
with you, so we are on the same wavelength.
Ms. Woolsey. All right. So on record, right?
Mr. Lotito. That is right.
Ms. Woolsey. There you go.
Mr. Lotito. So we can still be friends.
Ms. Woolsey. Absolutely. And I still do work for you.
Mr. Dau-Schmidt, who and how--how do the workers of this
country learn how important organized labor has been to them? I
mean, who tells them that the reason that we have wage and hour
protection, the reason we have minimum wage, the reason we have
child labor laws, the reasons that we have safety and health
programs is because at some point, Dale Kildee's father stood
up for changing an old-fashioned system and making workers
important in this country?
And giving workers a chance of earning a livable wage, of
owning a home, sending their kids to college, having a
retirement that they could live with, and know that that is
what America stood for. How do we tell that to workers if we
cannot even go on the work site?
Mr. Dau-Schmidt. I do not think that voice has been absent.
I mean, when I saw the title here, ``Big Labor,'' I was
wondering who are they talking about. We are down to less than
8 percent organized in the private sector. I am not sure who
big labor is anymore.
And I have got the tell you that, in my experience in
growing up, I went to a high school, I grew up in the shadow of
a pork plant. And most of the kids parents were unionized. We
never learned anything in our high school history classes about
the labor movement, or how any of that had been important.
So I do think that that is a voice that is absent. And I
think the way that you respond to that is, I think that people
that have benefited from unions, people who understand the
history, have got to talk to their friends and family. And that
we have to educate people about how important it is to have
some balance in our society between--I will use the term ``big
capital'' and ``big business,'' and ``regular working people.''
You have got to have some balance in a society to have a
healthy economy and have a healthy democracy.
Chairman Kline. The gentlelady's time has expired.
Mr. Bucshon. Thank you, Mr. Chairman. Just a couple brief
comments. First of all, my father was a United Mine worker for
37 years, so I have a good understanding, from that
perspective, growing up in that environment.
And for me, this hearing is about fairness for the workers
as well as the employers. And I think the indication is that,
you know, that is a two-way street.
And it seems to me the NLRB's proposal, with the data Mr.
Kelly has shown about fairness in the current system, this
rule, probably seems unnecessary. Unless it is based on a
specific political agenda, which it appears to me that it is.
With that, Mr. Chairman, I want to yield my--the remaining
portion of time to Mr. Gowdy.
Mr. Gowdy. I would like to thank Dr. Bucshon, and thank the
To the three attorneys on the panel, Linn v. United Plant
Guard Workers, a 1966 Supreme Court case, is that still good
Mr. Schaumber. You are are catching me off guard. Could you
mention the name again?
Mr. Gowdy. Linn, L-I-N-N, v. United Plant----
Mr. Schaumber. Yes, of course.
Mr. Gowdy. We acknowledged that the enactment of section 8-
C manifested congressional intent to encourage free debate on
issues dividing labor and management. As we stated in another
context, cases involving speech are to be considered against
the backdrop of a profound commitment to the principle of that
It should be uninhibited, robust, and wide open. And it may
well include vehement, caustic, and sometimes unpleasantly
sharp attacks. I see nothing in that elucidation of our First
Amendment rights that it should be shortened by an unelected
group of recess appointees at the National Labor Relations
So let me, Professor, give you one more chance to tell me
whether or not you can think of a single reason not to join a
Mr. Dau-Schmidt. I think that has been asked and answered.
Mr. Gowdy. Has the answer changed?
Mr. Dau-Schmidt. If you want me to, I still would like to
have a context. I will give you--I thought about it a little
bit while I have been listening to the rest of it. If you have
religious objections you might not want to vote for a union.
Mr. Gowdy. No economic reason.
Mr. Dau-Schmidt. There are people who have legitimate
Mr. Gowdy. No economic reason that you can think of.
Mr. Dau-Schmidt. Actually, if I had the opportunity to vote
for a union in my workplace, I would.
Mr. Gowdy. Do you know whether or not the National Labor
Relations Board has jurisdiction in Brazil?
Mr. Dau-Schmidt. Has what?
Mr. Gowdy. Jurisdiction in Brazil.
Mr. Dau-Schmidt. Do not believe they do.
Mr. Gowdy. India?
Mr. Dau-Schmidt. In India? No.
Mr. Gowdy. China?
Mr. Dau-Schmidt. No.
Mr. Gowdy. France?
Mr. Dau-Schmidt. No.
Mr. Gowdy. So Boeing could go to Brazil and not South
Carolina and there would be no Leif Solomon in their lives.
Mr. Dau-Schmidt. They would still have jurisdiction over
them to the extent that they are still in the United States,
Mr. Gowdy. Well, they can not make them tear down a plant
in Brazil, can they?
Mr. Dau-Schmidt. They might make them open one in
Washington. Maybe that is the solution----
Mr. Gowdy. So that is the point we have gotten to is that
the general counsel of the National Labor Relations Board is
going to tell a company like Boeing where it can put a
facility, how many workers it needs to hire, how many planes it
can build in Washington State versus South Carolina. That is
where we are.
Mr. Dau-Schmidt. I do not think that is where we are. I
think we have to wait and see how the facts develop in that
case. But if, in fact, Boeing discriminated against their
employees on the basis of their collective action, the board
has the power and the obligation to make those employees----
Mr. Gowdy. Have you read the complaint?
Mr. Dau-Schmidt. And if they--if making them whole means we
are going to make sure there are jobs in Washington, then that
is the remedy that the board----
Mr. Gowdy. And then Boeing can move to Brazil, right?
Mr. Dau-Schmidt. No, I do not believe they would.
Mr. Gowdy. I said could they, not would they.
Mr. Dau-Schmidt. They, we still, would have a remedy over
Boeing here in this country.
Mr. Gowdy. Mr. Chairman, after hearing about advocacy
posters that tell you can unionize but do not tell you that you
cannot unionize, after hearing about advocacy posters where
employers cannot tell putative union employees how much of
their money is going for political purposes, in an environment
where the NLRB is pursuing an absolutely draconian remedy
against the largest exporter this country has, and now
shortening the election and litigation framework, and this
newfound fascination with judicial economy, it appears to me,
Mr. Chairman, the NLRB has become a political sycophant for
And it might be well for Congress to revisit its attention
to the NLRB. With that, I will yield back.
Mr. Dau-Schmidt. Excuse me.
Chairman Kline. The gentleman yields back. We are going to
be voting here shortly. By previous discussion with the ranking
member, I will recognize him for any comments or even
questions, if he likes.
Mr. Miller, you are recognized.
Mr. Miller. Thank you very much, Mr. Chairman I would like
to ask unanimous consent to put into the record the proposed
notice of employee rights where it clearly states you also have
the right to choose not to do any of these activities,
including joining or remaining a member of a union.
[The information follows:]
Mr. Miller. So with all of the talk about how it does not
tell people they have a right not to join the union, it clearly
says they have a right not to join the union. I would hope that
if Boeing did retaliate against the workers in Seattle, and
they chose to move American jobs to Brazil, that the gentleman
would support the effort to make sure that they were not able
to do that, for the sake of the fact that they retaliated
against the workers for exercising their legal right.
A lot of this discussion, and a lot of the written
testimony of the witnesses, is about the issue of time and
whether or not employers would have an opportunity to talk to
employees and whether employees would have an opportunity to
understand what it means to join the union.
Mr. Schaumber, you say, in a couple of cases where the
decertification of the election is the issue, that there is no
right to time. There is no right to an election.
Mr. Schaumber. I do not think that was myself.
Mr. Miller. Well, in Shaws Supermarket, the board decision
in your opinion in that case, you said the employer should not
have to bother with a secret ballot election because, quote--
``The time it takes to ultimately resolve the representation
Mr. Schaumber. I would have to go back to Shaw
Mr. Miller. I would hope you would.
Mr. Schaumber [continuing]. To view the context. Because
with all due respect, I think that is taking it out of context.
Mr. Miller. Or we could go to Wurtland. We could go to the
Wurtland Nursing Home case where there, again, rather than
waiting, you said the unions should be decertified, that there
is no need for a secret ballot, to be determined by including
the period required for resolution of challenges and
Mr. Schaumber. Congressman, you are reading me out of
context. And I think that is unfair. I would like to have those
Mr. Miller. I am reading you out of context.
Mr. Schaumber [continuing]. Put----
Mr. Miller. I think you have one view on the rights of
people to delay a process when it comes to trying to form a
union, and you have another view when it comes to time to
decertify the union.
Mr. Schaumber. I would respectfully----
Mr. Miller. Because all these concerns we have heard about
time and the rights of workers on decertification, it is gone.
Mr. Schaumber. I would respectfully request if those cases
could be made part of the record.
[The NLRB Decision, cases 1-CA-39764, 1-CA-39971, 1-CA-
39972, and 1-CA-40139, ``Shaw's Supermarkets, Inc. and United
Food and Commercial Workers International Union, Local 1445,
AFL-CIO,'' may be accessed at the following Internet address:]
[The NLRB Decision, case no. 9-CA-40471, ``Diversicare
Leasing Corp. d/b/a Wurtland Nursing & Rehabilitation Center
and District 1199, The Health Care and Social Service Union,
SEIU,'' may be accessed at the following Internet address:]
Mr. Kline. It is done. We will make these part of the
Mr. Schaumber. Thank you.
Mr. Miller. But the point of the view is: what is your view
Mr. Schaumber. I think employees should have a right to
decertify, as well as employees should have a right to have a
union and certify.
Mr. Miller. But that is not the case you voted on.
Mr. Schaumber. Congressman, I do not recall those cases.
Mr. Miller [continuing]. Not the case you voted on. And
Mr. Schaumber. You are not quoting me fairly.
Mr. Miller. You constantly hear the same people, the same
people in the Congress and outside the Congress, that lament
the lack of an opportunity of the employee to be informed and
participate on a decertification. You get the card signed, you
show up, and it is over for the union right now.
Mr. Schaumber. Congressman, you are quoting me unfairly.
Mr. Millerr [continuing]. Constitutional rights to speech.
How is that not the right to be involved? How is that the right
to have some say over your workplace? That is the rule, right?
Mr. Schaumber. Everyone can read those decisions and see
for themselves what I said.
Mr. Miller. What is the outcome of the decision?
Mr. Schaumber. Sir----
Mr. Miller. The decision was, it was over.
Mr. Schaumber. Those decisions were 4 or 5 years ago. I do
not recall them right now, number one. Number two, you are
Mr. Miller. Well, Mr. Dau-Schmidt, let me ask you a
question on the question of decertification. You get the cards
to decertify the union, you hand them in, and the game is over.
Mr. Dau-Schmidt. There have certainly been opinions
expressed to that, yes.
Mr. Miller. Yes, there certainly have, by the board that is
so worried about all of this time that would be consumed or not
consumed. However, you want to----
Mr. Schaumber. I have never heard of a case like----
Mr. Miller. So you clearly have a double standard that has
Mr. Schaumber. I have never heard of a case, in my 8 years,
where a decertification could take place based on cards.
Mr. Miller. It is with automatic withdrawal of recognition.
Mr. Schaumber. There is no such thing as an automatic
recognition. You have to have----
Mr. Miller [continuing]. All these guys back----
Mr. Schaumber. You have to have a secret--you have to have
a secret ballot election.
Mr. Miller. Well, we will contend. But the point is that
you have advocacy for the immediacy, with reaction of the
signing the cards. The same cards that would be signed if you
had employer free choice act to certify the union. That somehow
is terribly wrong. But in the decertification, the same groups
Mr. Schaumber. Well, Congressman----
Mr. Miller [continuing]. Immediately withdraw the
Mr. Schaumber. With all due respect, now I understand why
you are confused. The cards that are used for decertification
are the same cards that are used for certification. In lieu of
having the employee sign the decertification petition or sign
the certification petition, they sign cards which are submitted
with the petition.
Mr. Miller. Right. And you can immediately withdraw.
Mr. Schaumber. No, there is no immediate withdrawal. It is
a secret ballot election.
Mr. Miller. The board that you participate in, we will
straighten this out. But the fact of the matter is that the
board that you participated in, and I believe your quotes,
suggest that that should not be necessary. That should not be
So I guess a lot of this upholding of people's rights
depends on what side you are looking at it from. I think there
ought to be a ballot on each one. I think employees ought to be
heard about whether or not when they get blindsided on the
decertification process they ought to have an ability to
address the workers and tell them maybe they know, they
understand, the circumstances which that has taken place so
they do not know. And the same as on the front end.
Mr. Schaumber. With all due respect, Congressman, you are
suggesting I am partisan. I came to the board as a neutral. I
was a labor arbitrator. I was never a management attorney.
Mr. Miller. I appreciate it. Thank you very much.
Chairman Kline. I thank the gentleman. I thank the
witnesses very much for being here today, for their testimony,
for the spirited discussion on the part of all members of the
committee. We have talked many time in this committee, and I am
sure we will continue, about some shortcomings with the
National Labor Relations Act and the fact that there is a
pendulum, as one of my colleagues mentioned, that goes from
administration to administration.
I think that what we are seeing right now is a swing in
that pendulum that is decidedly in the favor of big labor. And
I can identify big labor for Professor Dau-Schmidt if he is
still looking for it.
I would point out that one of the members, a recess
appointee of the board, Mr. Becker--who has been somewhat
controversial and understandably so based on this employment as
the associate general counsel of the Service Employees
International Union--some interesting quotes from Mr. Becker
that I think pertain to the discussion here today.
One of the things that Mr. Becker is quoted as saying is,
on these latter issues employers should have no right to be
heard in either representation case or in unfair labor practice
case, even though board rulings might indirectly affect their
duty to bargain.
Another quote--``Similarly, employers should have no right
to raise questions concerning voter eligibility or campaign
conduct.'' Similarly, just as U.S. citizens cannot opt against
having a congressman, workers should not be able to choose
against having a union as their monopoly bargaining agent.
This pendulum is swinging, and it has swung a long way. We
are going to continue to look into the actions of the NLRB as
part of our oversight responsibilities. I thank all the
witnesses. I thank the members. There being no further
business, the committee stands adjourned.
[Additional submissions of Mr. Miller follow:]
Follow-up Statement for the Record From Mr. Miller
I write to submit cases for the record as a followup to my exchange
with Mr. Peter Schaumber, a witness at the hearing on July 7, 2011. In
that exchange, I cited Board decisions issued during Mr. Schaumber's
tenure on the Board that indicated, contrary to his criticism of the
current Board's proposed rule on eliminating delays in representation
elections, a frustration with delays in decertification elections.
In 2007, Mr. Schaumber was part of a Board majority that issued
dozens of controversial decisions overturning long-standing precedent.
One of those decisions, co-authored by Mr. Schaumber, was Shaw's
Supermarket.\1\ In that case, the Board held that, based on a majority
of employees signing cards asking for removal of their union, an
employer could withdraw recognition without waiting for a secret-ballot
election because delays may force employees ``to endure representation
that they have unquestionably rejected.'' \2\ Mr. Schaumber cited
concerns that a decertification election could be delayed if the union
files blocking charges or challenges or objects to the decertification
election. In light of the time ``it takes to ultimately resolve the
representation case.'' \3\ Mr. Schaumber and the Board's majority held
that an employer may rely on signed cards as evidence of actual loss of
majority support and unilaterally withdraw recognition from a union.
\1\ 350 NLRB 55
\2\ Id. At 588
\3\ Id. at 589
In a separate case that year, Wurtland Nursing & Rehabilitation
Center,\4\ the Board again raised concerns that delays can occur with a
secret ballot election and accordingly rejected the need for a secret
ballot election. In that case, a majority of workers signed cards
requesting an election to remove the union as their bargaining
representative. The Board held that the employer could simply withdraw
recognition without waiting for an election, explaining that an
election would prolong the time during which the union would remain the
workers' representative, i.e., ``until the election results were
certified, including any period required for the resolution of
challenges and objections.'' \5\
\4\ 351 NLRB No. 50 (2007)
\5\ Wurtland Nursing & Rehabilitation Center, 351 NLRB No. 50
In another case from this prior Board, Dana Corporation,\6\ the
Board's majority completely disregarded any concern over possible
delays where workers sought recognition for their union. In Dana, Mr.
Schaumber and the prior Board majority held that a minority of the
workforce can override the expressed desire of the majority of the
workers. The Board held that collecting employees' signatures in
support of a union is ``admittedly an inferior process to the election
process'' and ``there is good reason to question whether [signatures]
accurately reflect employees' true choice.'' While requiring a
representational election ``may result in substantial delay in a small
minority of Board elections,'' this is preferable ``for resolving
questions concerning representation.''small minority of Board
elections,'' this is preferable ``for resolving questions concerning
representation.''small minority of Board elections,'' this is
preferable ``for resolving questions concerning representation.'' \7\
\6\ 351 NLRB No. 28 (2007).
These cases are submitted to highlight the inconsistency among
opponents of the Board's recent proposed rule, between being highly
tolerant of delays when workers seek recognition of their bargaining
representative and being impatient with delays when workers seek
removal of such recognition. The prior Board believed workers seeking
to decertify the union should not even have to wait for an election
because of possible delays in the election process. At the same time,
numerous cases\8\ before the prior Board indicate a great deal of
patience for delays relating to certification elections, i.e., when
workers are trying to form a union.
\8\ Oak Park Nursing Care Center (351 NLRB 9)--The Regional
Director ordered an election be held in March 2004. The employer filed
a request for review with the Board. The Board didn't issue a decision
until September 2007--over three years later. Ryder Memorial Hospital
(351 NLRB 26)-Elections were held in April 2004. Objections were filed.
A decision wasn't issued by the Board until more than three years
later. BP Amoco Chemical-Chocolate Bayou (351 NLRB 39)--Elections were
held in 2000, but they were tainted by employer unfair labor practices.
An ALJ decision was issued ordering a new election. The employer
appealed. It took the Board six years to issue a decision upholding the
ALJ and ordering a new election.
The National Labor Relations Act was intended to provide more
stable, less conflict-ridden labor relations for both employees and
employers, including a free and fair way for workers to decide upon
union representation. However, current rules provide multiple
opportunities for bad actors to purposefully delay and derail an
election. These delays intensify workplace conflict. The Board's recent
proposal does nothing more than limit the opportunity for intentional
delay, creating a fairer election process. It modernizes current Board
procedures, increases transparency, and reduces wasteful litigation.
The Shaw's Supermarkets and Wurtland Nursing cases are attached.
Thank you for your attention.
Prepared Statement of Melinda Burns, Newspaper Reporter
My name is Melinda Burns and I was a senior reporter for the Santa
Barbara News-Press newspaper for 21 years. I was fired in October 2006,
one month after my co-workers and I voted in a secret ballot election
to join the Teamsters. Since that time, I have been pursuing legal
action to get my job back and receive the back wages I am due. While
there have been rulings in my favor, the News-Press continues to file
appeals and I have no idea when the process will come to a conclusion.
I have had to move out of my house and for several years, I could not
find permanent work.
My co-workers and I chose to come together for a voice on the job
after five editors resigned in protest in mid-2006, alleging that the
multimillionaire owner of the News-Press was meddling in the news
coverage, in part by threatening and disciplining reporters. Instead of
choosing to leave, we decided to form a union to protect their
professional integrity and job security from the owner's arbitrary
Even though more than 80 percent of the newsroom signed cards to
join the Teamsters, the owner would not accept them. We then held a
secret ballot election, in which we voted overwhelmingly to form a
union. In the time leading up to the election, the management sent out
memos with misinformation about the union, wrote anti-union editorials
and in some cases threatened to suspend those workers who supported the
After we won the election, the News-Press fired eight reporters,
all of them union supporters. The newspaper filed frivolous objections
and delayed union certification for a year. While an administrative law
judge considered their employer's objections, we had to be part of an
intrusive and burdensome process that required us to turn over personal
files and emails. Finally, the judge ruled in our favor, finding
``widespread, general disregard for the fundamental rights of the
The News-Press owner was ordered to reinstate most of the employees
with back pay, but she appealed, and my coworkers and I are still
waiting for a resolution to a scandal that has dragged on for nearly
five years. To date, the News-Press has been found guilty of more than
25 violations of federal labor law, including nine illegal firings (an
additional employee who served on the union's negotiating team was
fired in 2008) and threatening and spying on union supporters. The
company also has been found guilty of bad-faith bargaining.
More than four years after the union vote, we still do not have a
Prepared Statement of Brandii Grace
In March of 2010, I was fired from my position as Course Director
in the Game Production department at the Los Angeles Film School. In
April of 2011, an Administrative Law Judge for the National Labor
Relations Board ruled I was illegally terminated due to my union
activities. I was the leader of a faculty-driven effort to join the
``California Federation of Teachers'' (CFT) union. Prior to this, I had
no ties to or interest in unions.
In the final days of January 2010, the faculty were informed via a
memo and department meetings that the school was about to make drastic
changes to our employment. We were told that our employee contracts
were being scrapped and replaced with new contracts making us hourly
employees. At the time, I had a contract that said I was a fulltime
employee, responsible for two classes: ``Game Design 1'' and ``Game
Design 2;'' in exchange I was earning an annual salary of $70,000 plus
Faculty were also informed that we would need to take on more
classes and that the hours we were to be paid would be mostly limited
to the hours we were physically teaching in class.
For those who have never taught at the college level, the time you
spend in class is a mere fraction of the amount of time you work. There
is a general rule-of-thumb that for every hour of class you teach, you
can expect to spend 3 hours working outside of class. Out of class work
includes critical activities such as lecture preparation, homework &
test creation, grading, and--of course--helping students. After all, a
teacher's job is not simply to lecture at someone, teachers must act as
a guide to help students learn and grow.
Given the above formula, if you were to teach 20 hours of class a
week, you could expect to have approximately 60 hours of out of class
work a week. That's an 80 hour work week. Yet, under the school's
proposed system, you would only be paid for 20 hours a week--or half
your salary. To top it all off, we were told that if we did not accrue
40 paid hours a week, we would lose our benefits.
The faculty gathered together to discuss the situation. Many
faculty wanted to know if the school's changes were an illegal
violation of our employee rights. I volunteered to research this. I
contacted several local and state government agencies which informed me
that California is an ``At Will'' state. As such, I was informed that
we had limited power to prevent the employer from making these
changes--unless we joined a union.
I brought my findings back to the faculty who immediately decided
to unionize. We met with the California Federation of Teachers, I was
put in charge of the union steering committee, and we began the
unionization process. Many faculty wanted to see this happen
immediately, but even as motivated as we were, it still took about a
month to move through the process, collect Union Authorization card
signatures (over two-thirds of the faculty signed), and submit the
petition to join the CFT.
During the month before the petition was submitted, the school took
actions that the Administrative Law Judge has ruled were illegal
violations of the National Labor Relations Act. For example--I, and the
other 4 fulltime members of my department, were all promoted to the
position of ``Department Chair'' which we were told would promote us to
a position of management. (Had we actually qualified as management, we
would have been ineligible to join a union.) Following my promotion,
and starting the very day I began to collect Union Authorization card
signatures, I was put on probation and given a suspension that was to
last for exactly the number of days we were collecting signatures.
After the petition was submitted, the school took further actions
that the Administrative Law Judge has also ruled were illegal
violations of the National Labor Relations Act. For example--I was
quickly terminated. The school changed its security policies and forced
an invited union representative off the campus.
On top of that, I had calls from faculty who told me they were
being interrogated by their bosses and yelled at over signing cards--
whether the faculty member signed a card or not. I had other faculty
telling me they were assigned their boss's paperwork--paperwork which
would then be used to declare the employee as ``management'' and be
excluded from the union. Much of this began after we had received word
that the school had hired a professional anti-union consultant to find
the most effective ways stop our unionizing efforts.
On my end, I acted as a source of support and listened to my former
coworkers pour out all their fears--fears of losing their jobs, fears
of being blacklisted from the industry, and fears of how this would
impact their families. I also listened to their stories--stories of
pregnant wives, sick children, and aging parents.
The school filed appeal after appeal. And the election process was
delayed month after month. Eventually, the faculty gave in. I don't
blame them. No one should have to suffer through what they experienced
for months on end.
It is important that we recognize that this rule isn't about
changing how long it takes for an election to be scheduled. It takes a
while to schedule an election, and that's not likely to ever change.
All this rule does is act as a shield to protect the election process
from unnecessary and unfair delays. It closes a critical loophole that
unscrupulous employers take advantage of to continually deny their
employees the chance to hold a fair election. All we wanted was a
chance to have our voices heard--we were denied that chance.
Prepared Statement of Trisha Miechur, Certified Nurse's Aide,
My name is Trisha Miechur and I started working at HCR Manor Care--
Easton, a nursing home in Easton, Pennsylvania, in 2005 as a Certified
Nursing Assistant. I was excited by the chance to be doing something
that I love--spending quality time with seniors and providing them with
the care they need to live their final years with dignity.
The nursing home is part of the HCR ManorCare system. Based in
Toledo, Ohio, the company boasts of having more than 500 locations in
32 states with 60,000 employees. In 2009, HRC ManorCare made a net
profit of $201.4 million.
Unfortunately for my coworkers and the patients serve, ManorCare's
success and profitability did not translate into the proper staffing
levels and management that you would want your loved ones to have.
When you have 14 to 20 residents to take care of during your shift,
you cannot take care of them. I'm constantly running between rooms
trying to keep up with my residents' needs, and there are some days
when I just can't give them the care that I know they deserve.
In 2007, my coworkers and I got fed up with the short staffing,
high turnover and low pay so we decided we needed to form a union to
finally have a voice in the decisions that affected our residents and
Even though we came to the decision ourselves, and before we had
even contacted a union, once management heard there was talk of a union
they started an anti-union campaign within two days. And in less than
two weeks, with the help of a professional union-busting consultant,
employees were thrown into a vicious intimidation and harassment
campaign that continues to this day--four years later.
While we were trying to form our union, we were repeatedly taken
away from our residents to go to mandatory meetings with these
consultants and our bosses who told us a union will not make it better.
They said a third party would stop us from working together to try and
solve the problems. When we told them what are problems were and how we
had tried to talk to them before about solving them, they said it was a
new day and changes would be coming. Well, four years later I'm still
waiting for those changes. How can you fix a company when they are not
willing to fix it?
As we continued to organize, we started speaking out publicly. At
one point I was given a final written warning because management
accused me of asking residents and their family members to sign letters
to State Representative Mundy (D-Luzerne) about quality of care and
short staffing at our nursing home. The warning said I was being
disloyal to the company and that if my `behavior' continued I would be
`subject to termination.'
After I was written up I was scared whenever I walked into work. I
thought I had legal rights, but it seemed the system was blind to what
was happening to us, that it existed to work against us and for our
bosses to treat us wrong.
But I'm not ashamed of what I did. I'm proud of speaking out and
trying to make Manor Care a better place for seniors to receive care.
What I am ashamed of is how this country continues to let employers
bully workers who are trying to improve their lives.
Due to the broken NLRB process, ManorCare had every incentive to
drag the process out, appeal and delay at every point so they could
continue to identify and try and get rid of pro-union employees.
Unless the process changes, stories like mine will never change.
Management has all the power to make you afraid the next day at work
will be your last just because you want to have a voice in improving
the company. It will be the same story, different day, different year,
different month and a different never-ending process.
My coworkers and I have never filed for union recognition with the
NLRB because we are afraid we will lose our jobs.
So the argument that the new proposed NLRB rule prevents employers
from talking to their workers about unions is just plain false. My
company had a head start in talking to us about its anti-union views.
We never got a chance to hear from the other side.
We never got the chance to vote whether we wanted to join together
on the job for the sake of our patients and form a union.
And to this day, we still do not have union representation even
thought we wanted it.
[Additional submission of Ms. Hirono follows:]
Prepared Statement of R. Brian Bixby
My name is R. Brian Bixby. I am a member of the Transport Workers
Union of America (TWU), Local 721, at Caesars Palace Table Games. I
joined with my co-workers in 2007 to form a union where I worked. I was
the lead worker organizer and then served as Shop Steward and was a
member of the contract negotiation team. I became the Inaugural Local
President of TWU Local 721.
My co-workers and I wanted to form a union at Caesars Palace to
represent dealers. First we had to determine if there was support among
the dealers and there was overwhelming support. In order to let workers
know about the union, we left flyers and business cards in the
workplace. In October, we identified to the employer the workers who
were the lead supporters for the efforts to form a union. This is
standard practice with TWU, i.e., to identify the in-house supporters,
and is done to protect these workers from employer retaliation.
We filed our petition for an election with the National Labor
Relations Board in early November of 2007. But even before that time,
supervisors at work started wearing ``No TWU'' buttons. These buttons
looked the same as our longevity buttons, but instead of the number of
years of seniority, it said ``No TWU.'' The buttons were also available
in our pit area, where we work, for employees to take and wear.
After the petition was filed, the union agreed to every issue the
employer brought up in connection with the election. It did this in
order to avoid the delay that a hearing would cause. An election date
in mid-December was agreed to. However, shortly before that date, the
election was delayed until late December. It was never clear to me why
this additional delay was allowed, but even after agreeing to every
point the employer wanted, the election was delayed.
While we were waiting for our election, the employer conducted
mandatory captive audience meetings, sent letters to workers' homes
criticizing the union in ways that I believe were very inaccurate,
handed out many flyers, and instituted a new benefit that would really
help dealers financially.
Many of my co-workers are from other countries and working legally
in this country. I watched them walk through my work area, one-by-one,
to a supervisor's office. They told me that they were being threatened
that they could lose their citizenship and be deported if they
supported the efforts to form a union. There was a lot of fear and none
of them would go to the National Labor Relations Board to complain or
file an unfair labor practice charge.
The approximately 550 workers voted for the union by an 84% margin.
The union was certified, but we are still trying to bargain a first
[Additional submission of Mr. Holt follows:]
[Whereupon, at 12:57 p.m., the committee was adjourned.]