[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

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

                                HEARING

                               before the

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

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

              HEARING HELD IN WASHINGTON, DC, JULY 7, 2011

                               __________

                           Serial No. 112-31

                               __________

  Printed for the use of the Committee on Education and the Workforce


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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

                              ----------                              
                                                                   Page

Hearing held on July 7, 2011.....................................     1

Statement of Members:
    Kline, Hon. John, Chairman, Committee on Education and the 
      Workforce..................................................     1
        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

Additional Submissions:
    Bishop, Hon. Timothy H., a Representative in Congress from 
      the State of New York:
        Reitz, William, T-Mobile USA worker, prepared statement 
          of.....................................................    74
    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
    Mr. Miller:
        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, 
          2011...................................................    97
        Grace, Brandii, prepared statement of....................    95
        Miechur, Trisha, certified nurse's aide, HCR ManorCare, 
          prepared statement of..................................    98
        ``Employee Rights'' poster...............................    90
    Mr. Schaumber:
        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

                             Washington, DC

                              ----------                              

    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 
Hirono.
    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 
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 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 
free choice.
    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 
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 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 
categorical ``no.''
    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 
century.
    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 
employers.
    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 
employees.
    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 
of delay.
    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 
election.
    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 
election process.
    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 
century.
    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 
workplace.''
    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 
delay.
    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 
bargaining.''
    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 
government retribution.
    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.
    Welcome.
    Chairman Kline. Thank you, Mr. Petri. And welcome, Mr. 
Carew.
    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 
August 2010.
    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 
8 years.
    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 
bargaining.''
    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 
the Act.
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 
bargaining.'' \2\
    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 
longer necessary
     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 
management\5\

            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 
interests\7\
    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 
opposing unionization.\9\
     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 
Board.Board.Board.Board.Board.
     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 
relations costs.
    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 
the Board.
     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 
law.
    ``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 
decision.

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 
                    its Need
    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 
member.
    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 
marketplace.
    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 
                    Requirements.
    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 
Position.'' \34\
    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 
representation.\38\
    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 
representation.
    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 
                    Being Overturned.
    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 
reasons.'' \44\
    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 
election.
    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 
procedure.
    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.

III. Conclusion
    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.

                                ENDNOTES

    \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. 
60 (2008).
    \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.
    \23\ Id.
    \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://
www.slideshare,net/whitehouse/nation-labor-relations-board-reform-
board.
    \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 
them.
    \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.
    \31\ Id.
    \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.
    \43\ Id
    \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 
                          CORPORTATION

    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 
their goals.
    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 
for them.
    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 
this country.
    Thank you.
    [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 
memory.
    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 
could.
    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 
mistruths.
    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-
handling manual.
    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 
employee organizations.
    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 
intimidation.
    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 
your attention.
    [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 
changes.

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 
communication.
    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 
American taxpayer.
            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 
union.
    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 
                    Technology
           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 
process.
            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 
practices.
            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.

                               REFERENCES

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 
        http://www.epi.org/page/-/bp229/BriefingPaper--229.pdf?nocdn=1.
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://
        www.epi.org/page/-/pdf/bp235.pdf?nocdn=1.
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 
        http://iserp.columbia.edu/sites/default/files/working_papers/
        working_paper_cover_201101-final.pdf.
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 
        (2008).
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/
        papers.cfm?abstract_id=712741.
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/
        papers.cfm?abstract_id=967454.
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/
        papers.cfm?abstract_id=718161.
Kenneth G. Dau-Schmidt, Promoting Employee Voice in the American 
        Economy: A Call for Comprehensive Reform, MARQ. L. REV. 
        (forthcoming).
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/
        sol3/papers.cfm?abstract_id=1215185.
John DiNardo & David S. Lee, Economic Impacts of New Unionization on 
        Private Sector Employers: 1984-2001, 119 Q. J. ECON. 1383 
        (2004).
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 
        1984).
Gordon Lafer, Neither Free Nor Fair: The Subversion of Democracy Under 
        NLRB Elections, (American Rights at Work, July 2007), available 
        at http://www.americanrightsatwork.org/publications/general/
        neither-free-norfair.html/.
John Logan, The Fine Art of Union Busting, 13:22 New Labor Forum 76 
        (2004).
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://
        laborcenter.berkeley.edu/laborlaw/NLRB_Process_June2011.pdf.
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/
        publications/dropping-the-ax-update-2009-03.pdf.
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--
        efca--testimony.pdf.
                                 ______
                                 
    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 
job.
    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 
union claims.
    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, 
happy employees.
    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 
employment future.
    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 
proposed changes.
    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 
decisions.
    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 
concise.
    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 
York.
    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' 
track record.
    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 
since.
    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 
do now.
    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 
until then.
    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 
questions.
    [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 
        Employees
    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 
election.

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 
wrote:
    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 
available information.

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 
election.
    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 
        Determined Pre-Election
    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 
later.''
    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 
difficulty.
    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 
business.
    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 
contests.
    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.

Conclusion
    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 
terrible cost.
    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 
preserved.
    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 
waived.
    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 
voting with.
    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 
jobs?
    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?
    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 
hearing.
    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 
practicability.
    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 
representatives.
    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 
reached.
    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 
the----
    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 
intimidation.
    Mr. Miller. And again, in the reading of this rule, do 
mandatory meetings between employers and employees continue to 
be allowed?
    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 
meeting?
    Mr. Dau-Schmidt. Not except upon pain of losing their job. 
I mean----
    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 
job----
    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, 
right?
    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 
done right.
    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 
information.
    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 
changes?
    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 
employees.
    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?
    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 
your efforts.
    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 
cases.
    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 
cases.
    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, 
there is.
    Mr. Andrews. Well, what must happen now under the present 
procedures?
    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 
the----
    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 
that here.
    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 
ballot.
    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 
has expired.
    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 
classification.
    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 
with others.
    Mrs. Biggert. Thank you.
    Then Mr. Getts, do you have any concerns about your 
employer providing your phone number and email address to a 
union?
    Mr. Getts. Absolutely, yes. I would be very uncomfortable 
with that.
    Mrs. Biggert. I know when the phone rings now, and the 
numbers show up, most people do not answer unless they know who 
it is.
    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 
unsolicited----
    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 
not----
    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 
flexibility?
    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 
Miller.
    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 
have?
    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 
presentations.
    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 
employer.
    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, 
is better.
    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 
voters.
    Mr. Platts. No, no. Is your home phone number listed in the 
white pages?
    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 
Indiana.
    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?
    Mrs. McCarthy. Thank you, Mr. Chairman. Appreciate having 
this hearing.
    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 
to unionize.
    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 
for jobs.
    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?
    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 
today.
    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, 
or not.
    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 
BMW.
    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 
state.
    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 
Dreamliners.
    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 
feeling.
    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 
handle it?
    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 
busting.
    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 
the election.''
    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 
firm. In----
    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 
seminar.
    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 
have a----
    Mr. Lotito. I do not know what the cost of that hearing 
was.
    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 
confidential.
    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 
games.
    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 
environment.
    Chairman Kline. The gentleman's time has expired.
    Dr. Roe?
    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 
ballot.
    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 
referee.
    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 
me.
    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 
employers.
    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 
has expired.
    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 
corrected.
    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 
employer?
    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 
being provide.
    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 
employers----
    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 
situations.
    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 
unlawful.
    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 
this Constitution.
    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.
    Dr. Foxx?
    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 
election.
    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 
been confirmed.
    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 
election.
    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 
first question.
    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 
unionize.
    Mr. Dau-Schmidt. Unless I have a context for a specific 
workplace, I do not see how I can answer the question. But I 
would----
    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 
case----
    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 
is----
    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 
decide----
    Chairman Kline. The gentleman's time has expired.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. Holt?
    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-
Schmidt.
    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 
methods.
    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 
NLRB hearings.
    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 
it.
    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 
ridiculous.
    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 
of work?
    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 
Washington State?
    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 
boardroom.
    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 
think----
    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 
decertified, yes.
    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 
verdict came?
    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 
collective bargaining.
    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 
requested election.
    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 
Connecticut.
    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 
recognition.
    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 
unionized;
     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 
the job.
                                 ______
                                 
    Chairman Kline. Without objection.
    Mr. Bishop. I appreciate that, Mr. Chairman. Let me quote 
from it.
    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 
change.''
    ``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 
not----
    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?
    Chairman Kline. You want to read it again?
    Mr. Bishop. ``Any party causing a needless delay should be 
held accountable.''
    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 
my question.
    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 
delay?
    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 
proposed rule?
    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 
talking about----
    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 
Depression.
    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 
expired.
    Mrs. Roby?
    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 
election?
    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.
    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 
problems?
    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 
company emails.
    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 
answer.
    Thank you to you all being here today. And, Mr. Chairman, I 
yield back.
    Chairman Kline. Thank the gentlelady.
    Ms. Hirono?
    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 
Professor Dau-Schmidt.
    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 
process fairer.
    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 
time.
    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 
lengthening?
    Mr. Schaumber. No. It is, absent extraordinary 
circumstances.
    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 
lot clearer.
    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?
    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 
correct?
    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 
that.
    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 
free.
    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 
it.
    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 
had.
    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?
    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 
long ways.
    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 
Flint, Michigan.
    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 
well.
    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 
opportunity.
    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:]

         http://www.uschamber.com/sites/default/files/reports/
                     0908_unionstudies_coercion.pdf

                                 ______
                                 
    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 
at----
    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?
    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 
your grandchildren.
    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.
    Dr. Bucshon?
    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 
chairman again.
    To the three attorneys on the panel, Linn v. United Plant 
Guard Workers, a 1966 Supreme Court case, is that still good 
law?
    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 
debate.
    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 
Board.
    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 
union.
    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 
religious objections.
    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, 
yes.
    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 
labor unions.
    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. 
[Applause.]
    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 
case.''
    Mr. Schaumber. I would have to go back to Shaw 
Supermarket----
    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 
objections.
    Mr. Schaumber. Congressman, you are reading me out of 
context. And I think that is unfair. I would like to have those 
cases----
    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:]

             http://www.nlrb.gov/search/simple/all/350-585

    [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:]

            http://www.nlrb.gov/search/advanced/all/351-817

                                 ______
                                 
    Mr. Kline. It is done. We will make these part of the 
record.
    Mr. Schaumber. Thank you.
    Mr. Miller. But the point of the view is: what is your view 
on decertification?
    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 
the----
    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 
incorrect.
    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 
emerged.
    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 
that support----
    Mr. Schaumber. Well, Congressman----
    Mr. Miller [continuing]. Immediately withdraw the 
recognition----
    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 
necessary.
    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 
(2007)
---------------------------------------------------------------------------
    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).
    \7\ Id.
---------------------------------------------------------------------------
    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 
attacks.
    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 
union.
    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 
employees.''
    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 
contract.
                                 ______
                                 

                  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 
full benefits.
    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,
                             HCR ManorCare

    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 
their families.
    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 
contract.
                                 ______
                                 
    [Additional submission of Mr. Holt follows:]

    
    
                                ------                                

    [Whereupon, at 12:57 p.m., the committee was adjourned.]

                                 
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