[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
CULTURE OF UNION FAVORITISM: RECENT ACTIONS
OF THE NATIONAL LABOR RELATIONS BOARD
=======================================================================
HEARING
before the
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, SEPTEMBER 22, 2011
__________
Serial No. 112-40
__________
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin George Miller, California,
Howard P. ``Buck'' McKeon, Senior Democratic Member
California Dale E. Kildee, Michigan
Judy Biggert, Illinois Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania Robert E. Andrews, New Jersey
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Bob Goodlatte, Virginia Lynn C. Woolsey, California
Duncan Hunter, California Ruben Hinojosa, Texas
David P. Roe, Tennessee Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania John F. Tierney, Massachusetts
Tim Walberg, Michigan Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee Rush D. Holt, New Jersey
Richard L. Hanna, New York Susan A. Davis, California
Todd Rokita, Indiana Raul M. Grijalva, Arizona
Larry Bucshon, Indiana Timothy H. Bishop, New York
Trey Gowdy, South Carolina David Loebsack, Iowa
Lou Barletta, Pennsylvania Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
Barrett Karr, Staff Director
Jody Calemine, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on September 22, 2011............................... 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 3
Miller, Hon. George, senior Democratic member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 6
Statement of Witnesses:
Ivey, Barbara, employee, Kaiser Permanente Northwest......... 14
Prepared statement of.................................... 17
King, G. Roger, partner, Jones Day........................... 39
Prepared statement of.................................... 41
Mack, Curtis L., partner, McGuireWoods LLP................... 8
Prepared statement of.................................... 9
Martin, Arthur J., partner, Schuchat, Cook & Werner.......... 23
Prepared statement of.................................... 26
Additional Submission:
Chairman Kline:
HR Policy Association, prepared statement of............. 85
CULTURE OF UNION FAVORITISM:
RECENT ACTIONS OF THE
NATIONAL LABOR RELATIONS BOARD
----------
Thursday, September 22, 2011
U.S. House of Representatives
Committee on Education and the Workforce
Washington, DC
----------
The committee met, pursuant to call, at 10:04 a.m., in room
2175, Rayburn House Office Building, Hon. John Kline [chairman
of the committee] presiding.
Present: Representatives Kline, Petri, Platts, Wilson,
Foxx, Goodlatte, Roe, Thompson, Walberg, DesJarlais, Hanna,
Bucshon, Gowdy, Roby, Heck, Ross, Kelly, Miller, Kildee, Payne,
Andrews, Woolsey, Tierney, Kucinich, Holt, and Altmire.
Staff present: Katherine Bathgate, Press Assistant/New
Media Coordinator; Casey Buboltz, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce
Policy Counsel; Barrett Karr, Staff Director; Ryan Kearney,
Legislative Assistant; Krisann Pearce, General Counsel; Molly
McLaughlin Salmi, Deputy Director of Workforce Policy; Alex
Sollberger, Communications Director; Linda Stevens, Chief
Clerk/Assistant to the General Counsel; Alissa Strawcutter,
Deputy Clerk; Loren Sweatt, Senior Policy Advisor; Kate
Ahlgren, Investigative Counsel; Aaron Albright, Communications
Director for Labor; Jody Calemine, Staff Director; John D'Elia,
Staff Assistant; Brian Levin, New Media Press Assistant; Celine
McNicholas, Labor Counsel; Richard Miller, Senior Labor Policy
Advisor; Julie Peller, Deputy Staff Director; and Michael Zola,
Senior Counsel.
Chairman Kline. A quorum being present, the committee will
come to order. Good morning, everybody. I would like to welcome
our guests and thank our witnesses for being with us today.
In late August the National Labor Relations Board
introduced a series of sweeping changes to federal labor
policy. Through three decisions handed down in one afternoon,
the board restricted workers' right to a secret ballot
election; undermined employers' ability to maintain unity in
the workplace; and created new barriers for those who wish to
challenge union representation.
For anyone following this Obama board, this barrage of
activist decisions, however unacceptable, was not unexpected.
But for workers and job creators struggling to move this
country forward, it is an outrage.
Further, it is a roadblock to the strong economy our nation
desperately needs. It is unthinkable that any federal board
would launch such a deliberate assault on our workforce system,
especially with millions of Americans unemployed. And it is
unconscionable for Congress to stand by and let it happen. That
is why we are here today. And we have a great deal to discuss.
In its specialty health care decision, the board discarded
decades of precedent in order to adopt a strict standard for
determining which group or unit of employees can vote in a
union election. Union leaders have long tried to organize
smaller units of employees as an incremental step toward
organizing an entire business. In an effort to preserve unity
in the workplace and keep labor costs low, employers often seek
to expand the unit to include a greater number of employees.
Under the board's new standard it will be virtually
impossible for employers to challenge the group of employees
hand-picked by the union. The new standard empowers union
leaders to manipulate workplaces for their own gain with
dramatic consequences in the real world. Some employers will be
constantly engaged in costly labor disputes, and workers will
compete against their coworkers for wages and benefits.
The August onslaught also includes a decision that
restricts workers' rights to a secret ballot union election. In
its 2007 Dana decision, the board provided workers 45 days to
request a secret ballot election if their employer had
voluntarily recognized union representation.
We all know that a secret ballot election is the best way
to determine the will of workers without fear of coercion and
intimidation. Remarkably, the Obama board shut this 45-day
window. Now, if an employee voluntarily recognizes a union,
workers may have to wait months and possibly years before they
can cast a secret ballot.
At a recent hearing, the committee's senior Democrat noted,
``If workers want an election they should get an election. They
should not be met with fear, intimidation or delay for the sake
of delay.'' I could not agree more. And I hope that he will
join me in condemning these decisions.
Meanwhile, the board is drafting new rules to govern union
elections that will stifle employers' free speech and cripple
workers' free choice, and is requiring employers to promote
unionization in the workplace through a vague and biased notice
drafted by board bureaucrats. The goal of the board's activism
is clear; to expand the power of big labor by swelling the
ranks of unionized workers, whatever the cost to the American
people. The fact that this agenda is not supported by any
sensible reading of the law does not appear to bother the board
or its allies.
In closing, I would like to address what this all means for
the American people, and why this hearing is so important.
Across the country small employers are struggling to grow their
businesses and hire new workers. The president has proposed
$1.5 trillion, $1.5 trillion in tax hikes that will fall
heavily on their shoulders.
Federal bureaucrats are crafting more than 200 significant
new regulations, some of which will affect these small
employers. And now they must contend with a federal board
advancing policies that raise the cost of doing business,
restrict their right to speak with employees and undermine
common-sense protections for workers.
Why would anyone create a new job in this kind of chilling
environment? These are the real headwinds facing our economy.
The NLRB's assault on American workers and job creators is
undermining our nation's ability to grow and prosper.
Congress cannot stand by and allow an unelected board to
wreak havoc on our workforce. We must stand up and do the job
we were sent here to do.
And now I would like to recognize the aforementioned senior
Democrat for his opening remarks.
[The statement of Chairman Kline follows:]
Prepared Statement of Hon. John Kline, Chairman,
Committee on Education and the Workforce
Good morning. I would like to welcome our guests and thank our
witnesses for being with us today.
In late August, the National Labor Relations Board introduced a
series of sweeping changes to federal labor policy. Through three
decisions handed down in one afternoon, the board restricted workers'
right to a secret ballot election, undermined employers' ability to
maintain unity in the workplace, and created new barriers for those who
wish to challenge union representation.
For anyone following the Obama board, this barrage of activist
decisions--however unacceptable--was not unexpected. But for workers
and job creators struggling to move this country forward, it is an
outrage.
Further, it is a roadblock to the strong economy our nation
desperately needs. It's unthinkable that any federal board would launch
such a deliberate assault on our workforce, especially with millions of
Americans unemployed. And it's unconscionable for Congress to stand by
and let it happen. That is why we are here today, and we have a great
deal to discuss.
In its Specialty Healthcare decision, the board discarded decades
of precedent in order to adopt a strict standard for determining which
group or ``unit'' of employees can vote in a union election. Union
leaders have long tried to organize smaller units of employees as an
incremental step toward organizing an entire business. In an effort to
preserve unity in the workplace and keep labor costs low, employers
often seek to expand the unit to include a greater number of employees.
Under the board's new standard, it will be virtually impossible for
employers to challenge the group of employees handpicked by the union.
The new standard empowers union leaders to manipulate workplaces for
their own gain, with dramatic consequences in the real world. Some
employers will be constantly engaged in costly labor disputes and
workers will compete against their coworkers for wages and benefits.
The August onslaught also includes a decision that restricts
workers' right to a secret ballot union election. In its 2007 Dana
decision, the board provided workers 45 days to request a secret ballot
election if their employer voluntarily recognized union representation.
We all know that a secret ballot election is the best way to determine
the will of workers, without fear of coercion and intimidation.
Remarkably, the Obama board shut this 45 day window. Now, if an
employer voluntarily recognizes a union, workers may have to wait
months and possibly years before they can cast a secret ballot.
At a recent hearing, the committee's senior Democrat noted, ``If
workers want an election, they should get an election. They shouldn't
be met with fear, intimidation or delay for the sake of delay.'' I
couldn't agree more, and I hope he'll join me in condemning these
decisions.
Meanwhile, the board is drafting new rules to govern union
elections that will stifle employers' free speech and cripple workers'
free choice, and is requiring employers to promote unionization in the
workplace through a vague and biased notice drafted by board
bureaucrats.
The goal of the board's activism is clear: To expand the power of
Big Labor by swelling the ranks of unionized workers, whatever the
costs to the American people. The fact that this agenda is not
supported by any sensible reading of the law doesn't appear to bother
the board or its allies.
In closing, I'd like to address what this all means for the
American people and why this hearing is so important.
Across the country, small employers are struggling to grow their
businesses and hire new workers. The president has proposed $1.5
trillion in tax hikes that will fall heavily on their shoulders.
Federal bureaucrats are crafting more than 200 significant new
regulations, some of which will affect these small employers. And now
they must contend with a federal board advancing policies that raise
the cost of doing business, restrict their right to speak with
employees, and undermine commonsense protections for workers.
Why would anyone create a new job in this kind of chilling
environment? These are the real headwinds facing our economy. The
NLRB's assault on American workers and job creators is undermining our
nation's ability to grow and prosper. Congress cannot stand by and
allow an unelected board to wreak havoc on our workforce. We must stand
up and do the job we were sent here to do.
______
Mr. Miller. Or another version of history.
The committee meets this morning for--thank you, Mr.
Chairman. The committee meets this morning for yet another
partisan hearing on the National Labor Relations Board. This is
the fourth such hearing on this relatively small agency that
enforces Americans' labor rights. This hearing falls before
action on a bill to protect corporations that unlawfully
outsource American jobs in retaliation against workers
exercising their rights under the law. By giving lawbreakers a
free pass, the bill also disadvantages employers who play by
the rules.
Mr. Chairman, I just wish the House would put half as much
effort into addressing America's top concern of jobs in the
economy. As I wrote you nearly 2 weeks ago, that President
Obama proposed a numbers specific and historically bipartisan
initiative to get America back to work, and a number of these
proposals fall within this committee's jurisdiction.
For instance, we should be exploring the need for school
repair and modernization funding, new ideas on job training or
looking into how massive layoffs of teachers are impacting our
nation's schoolchildren. Instead, we are meeting to retread the
majority's attack on the National Labor Relations Board.
Listening to some of the rhetoric coming from you and
others on the other side, you would think that the Obama
administration cried havoc and let slip the dogs of war against
the American way of life. Nothing of this sort is remotely
occurring.
This campaign does nothing to create jobs, rather, it
merely sews fear and false doubt among employers whose biggest
problem right now is the lack of demand, the lack of customers
and the lack of resources on Main Street; not the 1935 Wagner
Act. But since we are here, let us address a few issues raised
by the majority.
Any sober look at the recent proposals in the decisions
made by the National Labor Relations Board would conclude that
they have been modest, addressed real-world problems. In one
case overturned the controversial Bush-year Dana decision,
which itself overturned decades of precedent that gave
bargaining relationships a chance to succeed without--following
voluntary union recognition before entertaining decertification
petitions. This decision is not radical. It is entirely
consistent with the law's goal of encouraging collective
bargaining and stable labor relations.
Another decision appropriately ruled that certified nursing
assistants can be considered a bargaining unit by themselves
like any other profession. The specialty decision applies the
same traditional community of interest test to non-acute health
care facilities as generally used in other workplaces. The
decision borrows from a recent D.C. Court of Appeals opinion
offered by a Republican judge.
Applying the law equally to nursing assistants as every
other American worker is hardly radical. Likewise, many
corporate special interests have objected to the board's
decision that upholds the workers' basic First Amendment right
to free speech. A worker should not have to give up his or her
First Amendment rights when they peacefully hold up a banner or
pass out leaflets outside a workplace.
And despite the overblown title of this hearing, the
current board has issued a number of decisions favorable to
organized labor, favorable and unfavorable to organized labor,
and favorable and unfavorable to employers. They have both won
and lost before this board.
Finally, the National Labor Relations Board has issued
requirement that businesses post a free notice in the workplace
outlining the basic rights and responsibilities of both workers
and employers under the National Labor Relations Act.
The poster is balanced, and clearly states that workers
have a right, one, to form a--to form, join and assist a union;
to bargain collectively; to strike and picket; and to engage in
or refrain from other activity. The notice also makes it clear
that workers have a right not to join a union or engage in any
of these activities.
Clearly too many workers do not know their rights. And it
is obvious that neither do many of the employers. If you read
some of the statements received during the public comment
period on the rule. One employer wrote that belonging to a
union is a privilege and a preference, not a right. Wrong.
Another commented that if a person so desires to be employed by
a union company they should take their explicative deleted to a
union company and apply for a union job.
These comments make it clear why it is important that the
protection that is written into the law should not remain a
secret. In addition to informing employees of their rights, the
notices may have the beneficial side effect of informing
employers and perhaps some members of Congress about the law.
In conclusion, this committee should be doing whatever it
can to grow and strengthen our nation's middle class because we
know that when working families are doing well, the country is
strong. But you do not strengthen middle class if you fear
American workers and their rights to organize. And you do not
strengthen middle class if you pass bills to make it easier to
outsource their jobs. And you do not help working families when
you ignore our nation's job crisis.
Mr. Chairman, there is still time to get the committee back
on track with the American people's agenda. But that time is
running short.
And I yield back the balance of my time.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
The committee meets this morning for yet another partisan hearing
on the National Labor Relations Board. This is the fourth such hearing
on this relatively small agency that enforces Americans' labor rights.
This hearing follows floor action on a bill to protect corporations
that unlawfully outsource American jobs in retaliation against workers
exercising their rights. By giving law breakers a free pass, this bill
also disadvantages employers who play by the rules.
Mr. Chairman, I just wish this House would put half as much effort
into addressing America's top concern of jobs and the economy. As I
wrote you nearly two weeks ago, President Obama proposed a number of
specific and historically bipartisan initiatives to get America back to
work. And a number of these proposals fall within this committee's
jurisdiction.
For instance, we should be exploring the need for school repair and
modernization funding, new ideas on job training, or looking into how
massive layoffs of teachers are impacting our nation's schoolchildren.
Instead, we are meeting to retread the majority's attacks on the
National Labor Relations Board.
Listening to some of the rhetoric coming from the other side, you
would think that the Obama administration has cried havoc and let slip
the dogs of war against the American way of life.
Nothing of this sort is remotely occurring. This rhetoric is
entirely overblown and often downright misleading. It is dangerous and
irresponsible, and appears to be part of a cynical effort to avoid
taking action on jobs.
Let's be frank. A great deal of money is being made by using the
National Labor Relations Board as a political whipping post. And a
great deal of money is being made off of needlessly frightening
employers and the American people.
This has to stop. And stop now.
This campaign does nothing to create jobs. Rather, it merely sows
fear and false doubt among employers whose biggest problem right now is
lack of demand, not the 1935 Wagner Act.
But since we are here, let's address a few issues raised by the
majority. Any sober look at recent proposals and decisions made by the
NLRB would conclude that they have been modest and address real-world
problems.
One case overturned the controversial Bush-era Dana decision, which
itself overturned decades of precedent that gave bargaining
relationships a chance to succeed following voluntary union recognition
before entertaining decertification petitions. This decision is not
radical. It is entirely consistent with the law's goal of encouraging
collective bargaining and stable labor relations.
Another decision appropriately ruled that certified nursing
assistants can be considered a bargaining unit by themselves like any
other profession. The Specialty decision applies the same traditional
``community of interest'' test in non-acute health care facilities as
is generally used in other workplaces. The decision borrows from a
recent D.C. Court of Appeals opinion authored by a Republican judge.
Applying the law equally to nursing assistants as every other
American worker is hardly radical.
Likewise, many corporate special interests have objected to the
Board's decisions that uphold workers' basic First Amendment right to
free speech. A worker shouldn't have to give up his or her First
Amendment right when they peacefully hold up a banner or pass out
leaflets outside of a workplace.
And despite the overblown title of this hearing, the current Board
has issued a number of decisions unfavorable to organized labor. Both
unions and employers have won before the current Board.
Finally, the NLRB has issued a requirement that businesses post a
free notice in the workplace outlining the basic rights and
responsibilities of both workers and employers under the National Labor
Relations Act.
The poster is balanced and clearly states that workers have the
right:
To form, join, and assist a union;
to bargain collectively;
to strike and picket; and
to engage in--or refrain from--other protected activity.
The notice also makes it clear that workers have the right not to
join a union or engage in any of these activities.
Clearly, too many workers don't know their rights. And it is
obvious that neither do many employers if you read some of the
statements received during the public comment period on this rule. One
employer wrote that ``belonging to a union is a privilege and a
preference--not a right.'' Another commented that ``if a person so
desires to be employed by a union company, they should take their
[expletive] to a union company and apply for a union job.''
These comments make clear why it's important that the protections
written into law shouldn't remain a secret. In addition to informing
employees of their rights, the notice may have the beneficial side
effect of informing employers--and perhaps some members of Congress--
about the law.
In conclusion, this Committee should be doing whatever it can to
grow and strengthen our nation's middle class. Because we know that
when working families are doing well, the country is strong.
But you don't strengthen the middle class if you fear America's
workers and their right to organize. You don't strengthen the middle
class if you pass bills to make it easier to outsource their jobs. And,
you don't help working families when you ignore our nation's jobs
crisis.
Mr. Chairman, there is still time to get the Committee back on
track with the American people's agenda. But that time is running
short.
I yield back.
______
Chairman Kline. I thank the gentleman.
As such, the Committee Rules 7C, all committee members will
be permitted to submit written statements to be included in the
permanent hearing record. And without objection, the hearing
record will remain open for 14 days to allow statements,
questions to the record and other extraneous material
referenced during the hearing to be submitted in the official
hearing record.
It is now my pleasure to introduce our distinguished panel
of witnesses.
Mr. Curtis L. Mack is a partner with McGuireWoods and an
adjunct professor of labor law at the University of Michigan
Law School. Prior to entering private practice, from 1976 to
1981, Mr. Mack served as director of the NLRB's Region 10
office.
Ms. Barbara Ivey is an employee of Kaiser Permanente
Northwest. After Kaiser Permanente voluntarily recognized the
Service Employees International Union, Local 49, Ms. Ivy
requested a secret ballot election. When the election was
scheduled, pursuant to the holding in Lamons Gasket, Ms. Ivy's
request has been dismissed.
Mr. Arthur J. Martin is a partner with Schuchat, Cook &
Werner, and is an adjunct professor at the St. Louis University
School of Law. He is an active member of the AFL-CIO Lawyers
Coordinating Committee, and contributing editor of the AFL-CIO
Building and Construction Trades Campaign Guide.
Mr. G. Roger King is a partner with Jones Day. Prior to
moving to the private sector, Mr. King served as a labor
counsel in the U.S. Senate.
Welcome all of you. Before I recognize each of you to
provide your testimony, let me briefly explain our high-tech
lighting system.
You will each have 5 minutes to present your testimony.
When you begin the light in front of you will turn green. When
1 minute is left, the light will turn yellow. When your time
has expired the light will turn red, at which point I would ask
that you please wrap up your remarks as best you are able and
as quickly as you can.
After everyone has testified, members will each have 5
minutes to ask questions of the panel. And I would remind all
of you that your entire written testimony will be included in
the record if you do not have a chance to get through it in
your 5 minutes of oral testimony.
Now, we will start with Mr. Mack. Sir, you are recognized
for 5 minutes.
STATEMENT OF CURTIS L. MACK, PARTNER,
MCGUIRE WOODS, LLP
Mr. Mack. Good morning, Mr. Chairman and members of the
committee. Thanks for the invitation to testify before the
group today.
As the chairman pointed out, I was formerly regional
director of the National Labor Relations Board in Atlanta,
Atlanta, Georgia. I would also like to point out to the
chairman and members of the committee that I am one of those
1960s, left-wing, liberal Democrats, and strong supporter and
admirer of the president and this administration.
Now, having said that, I would like to move on to talk
about three cases by the NLRB during the last year, primarily
the month of August, and talk about two sets of rules at the
NLRB, one they promulgated and one that is being contemplated.
I find both of my experience as a regional director and a
lawyer, those cases really do not have the process of
collective bargaining, and they tend to ignore and trample the
rights of employees.
Starting first I would like to talk about the Lamons Gasket
company case, which overruled the Dana company's case, which I
thought was a very good decision. In the Dana case the board
had held, correctly so, that whenever an employer in a union
entered into voluntary recognition employees had 45 days to
file a petition.
Lamons Gasket overruled that decision, and it really shut
the employees out from any possibility of calling the employer
and union to task about the validity of the union recognition.
So, that is a bad decision.
The second one I would like to talk about is the Euweo
case, and that deals with a so-called special bar. Under said
law prior to this case an employer acquiring an operation
became a successor, had an obligation under certain
circumstance to bargain with the union. At the course of the
bargaining the employer concluded that the union no longer
represented the majority. Of the employees' desire to get rid
of the union, no longer wanting its services they could file a
petition and go to an election.
In this case, overrule that body of law and in effect it
required the employees and the employer to continue to deal
with the union, which was no longer desirable, and did not give
the employees the opportunity to rid themselves of that union.
So, it locks the employees into this relationship for 2, 3 or 4
years, even though they may no longer want the union.
The last case I want to talk about is the specialty health
care case. Special health care essentially gutted from the
board jargon, the board jurisprudence all cases dealing with
the doctrine of community of interest, notwithstanding the
board articulation to the contrary. What the board said in the
special health care case is any group of employees, so long as
they are earning the same salary, similar salary, perform the
same job, they have a community of interest and they are stuck
and they have to be certified as a union--unit.
In my experience as regional director of the board, I would
have been compelled to certify any group of employees that the
union filed a petition for. That is not good labor relations;
not good for the employer and the union. It is horrendous for
the employees. It crippled the opportunity for the employees to
move from one job to another, for the wise utilization of
employees and their skills. So, it too is a bad decision.
Moving then to the board rules and regulations, one of the
ones the board is contemplating is shortening the time to get
to an election, i.e. from here going forward all election must
be conducted in 14 days. That is contrary to what the board
policy is now. Whenever a petition is filed the regional
directors strive to get to an election in 42 days.
The 42 days makes good sense because it gives the employer
an opportunity to address the employees regarding the
feasibility, the desirability of having a union. And more
importantly, it gives the employees an opportunity to talk and
cajole each other about whether they want or do not want a
union. By reducing this time down to 14 days, it really
eviscerates Section 8C of the National Labor Relations Act,
which give the employee the opportunity to communicate.
Under the 14-day rule the board says it is contemplating
not deciding very important questions until after the election.
So, bargaining unit employees have no idea whether they are in
or out of the unit until after the election. So, they have no
desire to compete or campaign for a union.
And then we move to the rule which the board has put in
place now that you got to post a notice to employees, advising
them of the right to form or join a union. We need to point out
that the NLRB has existed for about 75 years without the need
of such rule, and there is nothing in the statute that
contemplate the posing of such a ruling.
The board tries to ride itself on a case that came out of
the ADEA. But clearly the ADEA specifically says by Congress
that the employer shall post a notice. There is no similar
comparable language under the National Labor Relations Act.
So, I think this rule, in addition to exceeding the board's
authority, it fails to articulate in any reasonable way all the
employees' rights with respect to joining and not joining the
union, what happens if they join a union, how they can
extricate themselves for a union. It is just a bad rule.
Thank you, Mr. Chairman and members of the committee.
[The statement of Mr. Mack follows:]
Prepared Statement of Curtis L. Mack, Partner, McGuireWoods LLP \1\
Chairman Kline and members of the Committee, thank you for inviting
me here to testify today. My name is Curtis Mack. I am a partner with
the law firm of McGuireWoods LLP, where I represent employers in the
public and private sectors. I served as regional director of Region 10
of the National Labor Relations Board (hereinafter ``the Board'') from
1976 to 1981. I served as an NLRB trial attorney from 1970 to 1972 in
Cleveland, Ohio. I would like to preface my remarks by stating that I
am a life-long liberal Democrat and a loyal supporter of President
Obama.
I appreciate the opportunity to appear before this Committee to
address three (3) recent Board decisions, a proposal to change election
procedures and a new rule requiring employers to post a notice
purporting to advise employees of their rights under the National Labor
Relations Act (hereinafter ``the Act.'') I believe these rules and
decisions come at the expense of employees and emasculate Section 7 of
the Act. They will interfere with employees' rights to decide for
themselves whether to join a union or refrain from joining or
supporting a union. These actions will also interfere with employers'
rights to communicate with their employees regarding unionization
issues. In short, the only beneficiaries of these new rules and
decisions are unions.
It is no secret that the percentage of American workers
participating in unions has declined steadily for years.\2\ The Board
is aware of that trend and is responding by setting an agenda of its
own to reverse it. These changes will come at a cost to employers and
to employees.
The rule regarding notice posting and the proposed rule to shorten
the timeframe preceding the election completely ignore the fact that
when enacting the Act, Congress conferred on working Americans not one,
but two, rights: the right to support and form unions and the right to
refrain from such activities. There is nothing in the Act which
evidences any Congressional intent to give either right any greater
value than the other. It is beyond any doubt that neither right can be
intelligently exercised without the employee having the opportunity to
obtain appropriate information regarding the value and cost of
unionization. Even more important, employees must have sufficient time
to discuss and debate among themselves the pros and cons of
unionization. The Board's proposed rules setting an arbitrary timeframe
for holding an election after the filing of a petition eliminate this
opportunity without offering any compelling justification.
Congress initially designed the Act to encourage unionization, but
in 1947, it amended the Act to bring to the fore the right of employees
to choose. Today, the Board is refusing to recognize Congressional
action and is ignoring a Congressional mandate.
I. An expedited election will abrogate employee rights under Section 7
The Board has proposed accelerating the timeframe for a
representation election. There is no justification for holding a secret
ballot election in fourteen (14) days. Holding an election in fourteen
(14) days is unfair to all parties. Currently, the Board strives to
hold elections within forty-two (42) days after a petition is filed.\3\
Other than the bald assertion that the proposed rule will shorten the
process and eliminate pre-election litigation, the Board has failed to
articulate any reason for fixing that which is not broken. Unions won
67.6% of representative elections in 2010 and have won more than half
of all representative elections in each of the past fourteen (14)
years, according to the Bureau of National Affairs. As discussed below,
the Board's articulated reasons do not withstand scrutiny.
Shortening the process is a bad idea. The accelerated timeframe
would sharply reduce the time for employees to weigh whether or not to
support a union. Employees would have significantly less time to
conduct independent research and debate the pros and cons of collective
bargaining with co-workers, who may work on different shifts and
schedules. Employees are entitled to scrutinize the union and to
converse with each other about joining or not joining a union. The
Board should not cut short this valuable process. Unionization results
in a significant change in the circumstances of an individual's
employment. Monthly dues and possible strikes become realities. Once a
union is voted in, employees no longer represent themselves.\4\ Two or
three weeks is simply not enough time for an employee to decide whether
joining a union is the right choice.
Second, the accelerated election schedule would interfere with
employers' right to discuss collective bargaining with employees and
employees' right to discuss collective bargaining among themselves.\5\
A union could campaign quietly for months, with the employer learning
of the campaign only after the petition is filed with the Board and
find itself facing a secret ballot election in just a few days. The Act
gives employers the right to communicate facts about unionization and
their beliefs to employees and employees to discuss unionization among
themselves.\6\ The employer has less time to respond to the union's
misrepresentations.\7\ The proposed rule shortening the time for the
election would force employers to convey its position on unionization
to employees in just a few days and stifle the employees' rights
guaranteed under the Act.
Further, employees need to be fully informed about the realities of
a strike, collective bargaining and even monthly union dues. Employees
are unlikely to hear of the cold realities of collective bargaining
from the union. Employees have a right to communicate their views to
each other. If the timeframe is shortened to as little as fourteen (14)
days, the Board will wipe out the employer's right to share important
facts with the employees or respond to misrepresentations made by the
union during the short campaign period.
Another problem with the Proposed Rule is that it postpones most
challenges to the proposed bargaining unit until after the election.\8\
In almost every campaign, there is debate about which employees should
be in a bargaining unit. Unions have notions about who should be in the
bargaining unit, and generally try to keep the unit size as small as
possible. Employers have ideas about who should be in the unit. Under
the statute, the employees in a collective bargaining unit must share a
``community of interest.'' There is almost always disagreement
regarding which groups of employees share a ``community of interest.''
Waiting until after the election to resolve these disputes denies
employees the opportunity to make an informed choice before exercising
their Section 7 rights. Employees may not want to be in a unit that
includes particular job classifications. Importantly, the delayed
decision has the potential of leaving large numbers of employees
uncertain with regards to their interest in the election or how they
will be affected by the outcome.
Postponing bargaining unit challenges is particularly problematic
with respect to supervisors. If an employee is incorrectly classified
as a supervisor and not allowed to vote in the election, he is
disenfranchised. If a supervisor is improperly included and campaigns
during the election for either side, the election is tainted and may be
set aside.\9\ Case law demonstrates that intimidation and coercion by
supervisors have tainted elections in the past.\10\ These issues should
be resolved before the election, out of fairness to everyone.
II. The notice requirement advising them of their rights under the act
is unnecessary
On August 30, 2011, the Board, without any justification or
reasoned rational, decided to deviate from a longstanding practice and
to require employers to post a notice to employees. The posting is not
required by the Act and does not serve the purposes of the Act. The
Board has existed for seventy-five (75) years but only now has found it
necessary to require employers to post a notice advising them of their
rights under the Act. Employees, whether through television, newspapers
or other media sources, know about their rights to unionize.
Information about the right to join a union or refrain from joining a
union is freely available on the Board website. Requiring employers to
post this notice presumes that employees are ignorant about unions and
the Board, which, clearly, they are not.
The content of the notice, which employees are mandated to post
effective November 14, 2011, is slanted in favor of unions. It
emphasizes the right to join unions while relegating the equal right to
not join a union as an aside. It suggests that employees need not
remain members of a union but gives no hint about how to pursue that
complicated option.
The first sentence informs employees of their right ``to organize
and bargain collectively with their employers and to engage in other
protected concerted activity.'' It ignores employees' equal right to
communicate directly with their employer. The poster assumes that the
right to join a union trumps the right not to join a union. It says
nothing about employees' rights after a union is voted in.\11\ Under
the new rule, failing to post the notice qualifies as an independent
Unfair Labor Practice. It would also toll the statute of limitations
for ULPs filed against employers who fail to post the notice. This
suggestion by the Board is in complete derogation of an express mandate
by Congress that all Unfair Labor Practices must be filed within 180
days after the incident occurred.\12\ The punitive nature of the rule
demonstrates that its goal is not to notify employees but to further
union efforts to gain traction at the expense of employee choice.
The poster also oversimplifies the Unfair Labor Practice (ULP)
process. It discusses what the Board can do with the charge against an
employer, but makes virtually no reference to charges filed against
unions. It fails to tell them that, without a union, they can instead
speak with their employer directly to get issues resolved. The poster
does not discuss that the regional director may dismiss the charge,
that the Board can find no merit to the charge and that it can take two
or three years or more before a court of appeals ultimately dismisses
the charge. The poster makes no mention of monthly union dues or of the
reality of strikes or of prolonged collective bargaining.
In short, the poster creates the impression that the Board favors
unions and is not neutral. This is not the message the Board should be
sending to American workers, who often need protection from unions as
well as employers.
III. The Board erroneously overruled Dana and has violated employees'
right to vote for or against collective bargaining
The Board returned to a rule barring elections for a ``reasonable
time'' after an employer voluntarily recognizes a union in Lamons
Gasket Co., 357 NLRB No. 72. The decision overrules Dana Corp., 351
NLRB 434 (2007) and creates a bad labor policy and does not effectuate
the purpose of the Act. To put the Lamons decision in context, in Dana
the board held that employees have the right to file a decertification
petition after a voluntary recognition and then vote on union
representation in a secret ballot election. Dana required the posting
of an official Board notice informing employees of their employer's
voluntary card-based recognition of a union bargaining representative
and the employees' right within forty-five (45) days to test the
union's claim of majority support through a Board-conducted secret-
ballot election. If no petition is filed within that period, electoral
challenges to the union's representative status would thereafter be
barred for a reasonable period of time. This was a good policy because
over the years, there have been many cases in which employees have been
misled or coerced into signing authorization cards.\13\
Dana informed employees who were unaware of or who disagreed with
voluntary recognition of their right to petition for a secret election.
The secret ballot elections are the best way to resolve all questions
concerning representation.\14\
In addition to insuring that employees had a right to vote on the
union, Dana provided a safeguard against severe consequences of
recognizing a union without majority support. The consequences of
recognizing a minority union were described by the Board in McLaren
Health Care:
an employer who recognizes and bargains with a minority union, as the
exclusive bargaining representative of a unit of its employees pursuant
to Section 9(a), violates Section 8(a)(2) and (1), and the employer's
knowledge or ignorance of the union's minority status is irrelevant to
the question whether the recognition constitutes an unfair labor
practice. Likewise, a union which accepts recognition as the exclusive
bargaining representative of a unit of employees pursuant to Section
9(a), and bargains on behalf of those employees, without majority
status, violates Section 8(b)(1)(A).
333 N.R.R.B. 256, 257 (NLRB. 2001).
A collective bargaining agreement is not always entered into
immediately after voluntary recognition. In International Ladies'
Garment Workers' v. NLRB, 366 U.S. 731 (1961), the employer and union
entered into an agreement under which the employee voluntarily
recognized the union based on the union's misrepresentation that it
secured authorization cards from a majority of employees. Six weeks
later, the two sides entered into a collective bargaining agreement.
The Supreme Court found that a collective bargaining agreement executed
by the parties failed because it was obtained based on an erroneous
claim. The Court held that the employer activity violated the Act by
interfering with and restraining employees' exercise of rights under
Section 7. The Court found that the fact that petitioner and employees
asserted good-faith beliefs in petitioner's majority status was not a
defense because scienter was not an element of the statute.\15\ The
decertification process provided for in Dana created a safeguard to
ensure that a union has achieved voluntary majority support.
Nothing in Dana undermines the voluntary recognition process
itself. However, it also serves as a safeguard against union
manipulation of authorization cards and other misrepresentations that
create a false picture of union support.\16\
The Board waxes on about the importance of remaining neutral. I can
tell you, as a former regional director, the Board's role is not one of
neutrality.\17\ The Board's role, and I quote directly from its web
site, is to ``safeguard employees' rights.'' Giving the employees the
opportunity to decertify a minority union is in keeping with
safeguarding rights. In overruling Dana Corp. the Board has betrayed
its mission, and it has taken a position that is incompatible with the
statutory purpose of the Act. As the Supreme Court reasoned in NLRB v.
Magnavox Co. of Tennessee, 415 U.S. 322, 326 (1974), ``it is the
Board's function to strike a balance among `conflicting legitimate
interests' which will ``effectuate national labor policy,'' including
those who support versus those who oppose the union.'' Another August
2011 Board decision, UGL-UNICCO Serv. Co., 2011 NLRB LEXIS 488 (NLRB
Aug. 26, 2011) also takes rights away from workers by barring
decertification for up to one year following a sale or merger.
Dana allowed employees to exercise their right to decertify 17
unions voluntarily recognized by employers. The Board justified
overturning Dana with the argument that this number is statistically
insignificant. The Board's argument ignores the purpose of Dana and its
own mission: to allow workers to exercise their rights.
IV. Specialty Healthcare will balkanize businesses with small
bargaining units
In Specialty Healthcare & Rehab. Ctr. of Mobile & USW, 2011 NLRB
LEXIS 489 (NLRB Aug. 26, 2011), the Board decided that a regional
director must find that any unit that the union petitions for is
appropriate, if the employees performed the same task or earned the
same or similar pay. This will wreak havoc on employers. Specialty
Healthcare will give unions the ability to organize multiple small
collective bargaining units within one facility, Balkanizing the
business and making it impossible for an employer to make hiring,
promotion and transfer decisions. Costs will increase as the employer
is forced to deal with multiple unions. This ability to carve out small
units will adversely affect or perhaps completely eliminate
opportunities for employees to advance in the workplace or learn new
skills. Moreover, I can tell you from my experience as a regional
director, a regional director looking at a representation petition
would be compelled to hold a representation election for any unit
supported by the union.
In early cases the Board considered whether employees had a
``community of interest'' when defining units. The Board looked at job
titles, salary, compensation, benefits and skills and considered how
the employees with different job titles related to the integrated
nature of the employer's work enterprise. We concede that the statute
has never required the Board to select the most appropriate unit--the
unit need only be an appropriate unit with a clear community of
interest among the employees. With this approach, the Board avoided
separating small groups of employees carved out only for the purpose of
union organizing from other groups that performed related tasks for
similar pay. The new test under Specialty Healthcare is a poor policy
that serves no useful purpose other than to make it easy for unions to
organize.
I believe that Specialty Healthcare, Lemons Gasket Co. and the
proposed rules are the Board's response to the failure of the Employee
Free Choice Act. That proposal would have bypassed secret ballot
elections and required employers to recognize a union on the basis of
cards signed by employees publically. Congress appropriately refused to
deny American workers their right to a secret ballot, but the Board's
proposals and decision seems to be an attempt to salvage the heart of
EFCA.
In conclusion, I want to thank you for the opportunity to appear
before the Committee. I would be happy to answer any questions you
might have.
endnotes
\1\ I would like to thank my law partner, Halima Horton, and
associate, Nancy Fonti, for all of their hard work in preparing this
presentation. Moreover, I appreciate the help and comments of my law
partners in the labor section of McGuireWoods LLP.
\2\ In 2010, the percent of wage and salary workers who were
members of a union fell to 11.9% from 12.3% percent a year earlier,
according to the Bureau of Labor Statistics. http://www.bls.gov/
news.release/union2.nr0.htm
\3\ The Proposed Rule acknowledges that the median timeframe
between a petition and an election is thirty-seven (37) to thirty-eight
(38) days. 76 FR 36812, pg. 5.
\4\ Steele v. Louisville & NR Co., 323 U.S. 192, 200 (1944) (``The
labor organization chosen to be the representative of the craft or
class of employees is thus chosen to represent all of its members,
regardless of their union affiliations or want of them.'').
\5\ See ITT Industries v. NLRB, 413 F.3d 64 (D.C. Cir. 2005)
(holding that the Act gave employees working at one facility the
Section 7 right to visit another facility owned by their employer and
appeal to their co-workers regarding the union), enforcing 341 NLRB
937, 941 (2004)(finding that security concerns did not justify the
restriction of access to non-site employees, reasoning ``* * * we are
equally mindful of our responsibility to protect the statutory rights
of employees at such times, and at all times''); NLRB v. Magnavox Co.,
415 U.S. 322 (1974)(employees have Section 7 rights to oppose a union).
\6\ NLRB v. Virginia Electric & Power Co., 314 U.S. 469, 477
(1941)(holding that neither the Act nor the Board can enjoin an
employer from expressing its views regarding the union); NLRB v. Gissel
Packing Co., 395 U.S. 575, 617 (1969)(``an employer's free speech right
to communicate his views to his employees is firmly established and
cannot be infringed by a union or the Board''); Gallup, Inc., 349 NLRB
1213, 1240-41 (2007)(chief executive may warn employees unionization
would put the company's future at risk without violating the Act);
Action Mining/Sanner Energies, 318 NLRB 652, 657 (1995)(employer's
comment that it did not know how customers would react once they
learned of unionization was not unlawful); Airstream, 192 NLRB 868
(1971) (``Section 8(c) protects an employer's right to criticize a
labor organization during a pre-election campaign''); NLRB v. Lampi,
240 F.3d 931, 936 (11th Cir. 2001)(executive's comment to a television
reporter that the company ``did not particularly like unions'' and was
``against them'' was not evidence of a unfair labor practice).
\7\ The following cases demonstrate the type of misleading
statements made during campaigns. See Hollywood Ceramics Co., 140 NLRB
221 (NLRB 1962); Formco, Inc., 233 NLRB 61 (1977)(union distributed a
letter that falsely reported the employer had been guilty of unfair
labor practices); Purolator Prods., 270 NLRB 694 (1984)(union handbill
incorrectly stated status of union's pending charge against employer by
implying the employer had been found guilty of an unfair labor practice
act).
\8\ The proposed rule would defer eligibility questions ``affecting
no more than 20% of eligible voters.'' See 76 FR 36812, pgs. 20-21.
\9\ NLRB v. Regional Home Care Servs., 237 F.3d 62, 68 (1st Cir.
2001)(``A pro-union supervisor presents two possible scenarios which
could interfere with a fair and free election. The first is confusion;
the second is coercion. There may be confusion felt by employees about
the message from management if one of management's own, a supervisor,
urges the union upon employees. Or there may be a second effect, that a
supervisor may explicitly or implicitly coerce employees into voting
for the union.''); Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st
Cir. 1981) (``The Board has found pro-union activity by supervisors
objectionable on two possible grounds: first, it may lead employees to
the false conclusion that their employer favors the union; and second,
it may cause employees to support the union out of fear of retaliation
by the particular supervisors rather than out of free choice.'').
\10\ The board and courts found that supervisors interfered with
elections in the following cases: Millard Refrigerated Servs., 345 NLRB
1143, 1147 (2005)(setting aside an election when supervisors with broad
authority over unit employees solicited authorization cards and warned
employees ``if the union does not get in, everyone will probably be
fired''); Harborside Healthcare, Inc., 343 NLRB 906 (2004) (setting
aside an election because a supervisor threatened employees with job
loss if the union lost the election); SNE Enters., 344 N.LR.B. 673, 674
(2005)(finding that supervisors solicited authorization cards and
remanding to regional director to determine if solicitation constituted
objectionable conduct); National Gypsum Co., 215 NLRB 74 (1974)(finding
that supervisors solicited authorization cards and controlled the
distribution of cards and tainted the union's showing of interest).
\11\ See Communications Workers of America v. Beck, 487 U.S. 735
(1988)(union cannot require workers to pay fees for its political
activities or fees beyond the costs of negotiating a collective
bargaining agreement).
\12\ In its attempt to justify tolling of the statute of
limitations, the Board incorrectly relies on a decision by the Third
Circuit, Bonham v. Dresser Industries, 569 F.2d 187, 193 (3rd Cir.
1977) that interprets the Americans With Disabilities Act. In that
case, according to the Board, the Third Circuit held that the ADEA
posting requirements was undoubtedly created by Congress for the
benefit of employees. There is a remarkable difference between Congress
creating a posting requirement and the Board creating a posting
requirement seventy-five (75) years after it began administering the
Act. The Board decisions regarding the tolling of the statute makes no
mention of Supreme Court jurisprudence articulated in National Railroad
Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which held that the
statute of limitation commences when a discrete act of discrimination
occurs.
\13\ Montgomery Ward & Co., 288 NLRB 126, 169,180 (1988)(some
authorization cards invalidated because union solicitor told employees
that authorization cards were only for the purpose of getting
information about the union or for obtaining the election); NLRB v.
Riviera Manor Nursing Home, Inc., 1972 U.S. App. LEXIS 8434, at * 3
(7th Cir. 1972)(finding that the union could not show that some
authorization cards were signed by individuals employed at the time of
the signing); Brookland, Inc., 221 NLRB 35,35-36 (NLRB
1975)(authorization cards invalid when the union solicitor told
employees ``the only thing the card was for was so that the Union could
keep in touch with us through literature of what was going on in the
union itself''); Serv-U-Stores Inc., 234 NLRB 1143, 1145-1147
(1978)(finding an authorization card invalid when union president told
the employee it would only be used solely for the purposes of obtaining
an election); Calplant Constructors, 279 NLRB 854 (NLRB 1986)(election
set aside when union representative misled employees telling them ``if
you sign now you won't have to pay the initiation fees'').
\14\ McLaren Health Care Corp., 333 NLRB 256, 257 (2001)(``secret
elections are generally the most satisfactory--indeed the preferred--
method of ascertaining whether a union has majority support''), citing
NLRB v. Gissel Packing Co., 395 U.S. 575, 602 (1969); Levitz Furniture
Co. of the Pacific, 333 NLRB 717, 723 (2001) (``Board-conducted
elections are the preferred way to resolve questions regarding
employees' support for unions''); Underground Service Alert, 315 NLRB
958, 960 (1994)(reasoning that a decertification election was superior
to an employer's withdrawing recognition since elections ``provide,
through the objection and challenge procedures, an orderly and fair
method for presentation and reasoned resolution of questions concerning
the fairness of the process and whether particular individuals are
eligible to have their preferences on union representation counted'').
\15\ See also International Ass'n of Machinists v. NLRB, 362 U.S.
411, 425-226(U.S. 1960)(Bryan Manufacturing's agreement with a minority
union required to remain in force since UPLs based on violation of the
Act were barred by a six-month statute of limitations); See also NLRB
v. Trosch, 321 F.2d 692 (4th Cir. 1963)(upholding a Board decision
finding that employer violated the Act by entering into a CBA with a
union that did not have majority support, reasoning ``Maryland News
recognized a minority union and negotiated a labor agreement with it.
The facts that the employer's actions were taken in good faith and that
a majority of the employees later signed the final version of the
agreement do not help Maryland News''); Human Dev. Ass'n v. NLRB, 937
F.2d 657 (D.C. Cir. 1991)(employer violated act by recognizing a union
with minority support); Regency Grande Nursing & Rehab. Ctr., 2009 NLRB
LEXIS 167 (NLRB, May 28, 2009) (same); Raymond Interior Sys., 2008 NLRB
LEXIS 366 (NLRB Nov. 10, 2008).
\16\ Dayton Hudson Dep't Store Co., Div. of Dayton Hudson Corp. v.
NLRB, 987 F.2d 359 (6th Cir. 1993); NLRB v. Gormac Custom Mfg., Inc.,
190 F.3d 742 (6th Cir. 1999).
\17\ See SNE Enters., 344 NLRB 673, 674 (NLRB 2005)(``We recognize
that setting aside a union victory in an election does represent a
setback for the union. However, at bottom, it is employee free choice
that is at issue, not the victory or loss of any particular party.'').
______
Chairman Kline. Thank you very much, Mr. Mack.
Ms. Ivey, you are recognized.
STATEMENT OF BARBARA A. IVEY, EMPLOYEE,
KAISER PERMANENTE
Ms. Ivey. Thank you. Mr. Chairman--excuse me. Mr. Chairman,
ladies and gentlemen of the committee, thank you for allowing
me to speak before you regarding this very important issue. My
name is Barbara Ivey, and I have been an employee of Kaiser
Permanente for over 21 years, 19 of which I have been in
membership services.
Let me start off by saying that the bottom line really is
that everything involved in this card check scheme was handled
in a very sneaky manner. All employees should have had the
opportunity to see all the vital information that was going on
to impact their jobs, incomes and the opportunities to vote in
a secret ballot.
I am not in favor of the union, but if the majority of my
coworkers truly wanted it, I would have accepted that decision.
However, I know that through the card check scheme used at
Kaiser Permanente everyone in our department did not have a
vote.
On July 20th this year Kaiser Permanente sent out an email
stating that there would be 2 days in the Portland Medical
Office attending would be--a meeting. Attending would be Scott
Allan, Director of Labor and Relations; and--of the Northwest
Kaiser Permanent; and Sarah Thompson, an internal organizer
from the SEIU union.
For many of us, this email was the first indication of any
effort to unionize our workplace. We thought this meeting was
simply the first step in what we believed would be a lengthy
process. We thought something as important as a union
representation election would never be rushed.
During the July 22 meeting at the Portland office, the
majority of my coworkers and I were still at work. We had to
call in from the outside clinics; example, Salem, Vancouver,
and Long View, during our breaks and or after work. We were not
informed that SEIU was going to visit Kaiser Permanente
employees at work and ask them to sign cards to indicate that
they wanted SEIU to have monopoly bargaining power.
During the telephone conference, I asked a few questions
regarding benefits and the SEIU's union work rules. I also
asked if there was any if we did not fill a card-count was
known should be a vote. I was advised at that time that there
was the Dana ruling that protected my rights to request a
secret ballot certification election.
To my surprise, just 13 days later I received an email from
Kaiser Permanente director, Belinda Green, announcing the
outcome of the SEIU vote count held the day before. According
to her email, 49 signed cards were needed to give the SEIU
union monopoly, had received 50 signed cards.
In those 13 days, I never received a card or request to
sign a recognition card for SEIU. It appeared to me that the
union had stacked the deck before the July 22nd meeting was
even held.
When we were told that in only 12 days SEIU had become our
monopoly bargaining agent, many of my coworkers and I were
stunned and frustrated that we did not have a say in this card
count and never had a real vote. I offered to contact the NLRB
to inquire about signing a Dana petition to force a secret
ballot election.
We never found out how the Bargaining Committee was
selected. Somehow these folks' names just appeared on the
ballot that was forwarded to us. The names were preselected.
Why was not everyone in the office offered an opportunity to be
on the ballot? The whole process seemed to take place in such a
small window of time, although we heard that there were
organizing meetings going on in the evenings prior to SEIU
coming into the office.
Let me say again, we were stunned and frustrated that we
had not been given a vote. And that is why, with the help of
The National Right to Work Legal Defense Foundation attorney
Glenn Taubman, we began the process to petition for a secret
ballot election.
With no expectations, a coworker and I approached fellow
employees about signing a petition for a secret ballot
election. We were not sure if we would be able to obtain the
necessary signatures of 30% of our coworkers, but it was the
only way to ensure that our voices were heard fairly.
Amazingly, we quickly obtained the signatures of 45% of our
fellow employees and filed the Decertification Petition with
the NLRB on August 8. It was exciting to see that so many of my
co-workers wanted the opportunity to have time to vote.
On August 26, we received confirmation from the NLRB that
all parties had agreed to a mail-in secret ballot vote that
would occur on September 20th. The ballots were to be counted
on October 4th. Everything was set for a vote in which everyone
could participate, one where everyone could vote their
conscience knowing it was confidential.
However, on August 31st, I learned that the Dana rights had
been overturned by the NLRB in a case called Lamons Gasket. I
was shocked and quite upset. I thought how could this be? All
we were asking for was a fair vote and a private vote, giving
everyone a voice.
If the union is so confident that a simple majority of
workers wants to be represented by them, why would it insist on
a card count instead of a secret-ballot election?
I have voted in every Presidential Election, and most of
the other elections, since I was 18. Each time, I either had to
be present at the polling station or mail my ballot for my vote
to count. And, every time I was reassured by the knowledge that
my vote was confidential.
In the United States we have been taught that if we vote,
our voices will be heard, our identities will be protected, and
most importantly that we can make a difference. Why should the
SEIU or any union be allowed to represent workers in any other
way? The card check process undermines the privacy and voices
of every worker that they seek to represent.
In the email I sent coworkers announcing the
decertification petition had been approved, I stated that we
were going to have the time and opportunity to review the Union
contract and then vote whether we wanted to be represented by
the SEIU Union or not.
Chairman Kline. Excuse me, Ms. Ivey. Could you wrap up,
please?
Ms. Ivey. Sure.
Chairman Kline. Thank you.
Ms. Ivey. And on my statement I gave some examples of how
my coworkers felt about the union. But in the end, I just want
to thank you--allow me the opportunity to share my personal
experience. And I look forward to answering any of your
questions.
[The statement of Ms. Ivey follows:]
Prepared Statement of Barbara Ivey, Employee,
Kaiser Permanente Northwest
Mr. Chairman, ladies and gentlemen of the Committee, thank you for
allowing me to speak before you today regarding this important issue.
My name is Barbara Ivey and I've been an employee of Kaiser
Permanente for over 21 years, 19 of which I've been in the Membership
Services Department.
Let me start off by saying that the bottom line, really, is that
everything involved in this ``card-check'' scheme was handled in a
sneaky manner. All employees should have had the opportunity to see all
the vital information that was going to impact their jobs and incomes,
and the opportunity to vote by secret-ballot.
I am not in favor of the union, but, if the majority of my
coworkers truly wanted it, I would have accepted that decision.
However, I know that through the card-check scheme used at Kaiser
Permanente, everyone in our department did not have a vote.
I think the following facts back up my concerns:
On July 20, 2011, Kaiser Permanente sent an email stating that
there would be a meeting in two days, July 22nd, from 4-6 pm in the
Portland office of Kaiser Permanente. Attending would be Scott Allan,
Director of Labor and Employee Relations for Kaiser Permanente
Northwest, and Sarah Thompson, an internal organizer from the Service
Employees International Union (SEIU).
For many of us, this email was the first indication of any effort
to unionize our workplace. We thought this meeting was simply the first
step in what we believed would be a lengthy process. We thought
something as important as a union representation election would never
be rushed.
During the July 22 meeting at the Portland office, the majority of
my coworkers and I were still at work. We had to ``call-in'' from the
outside clinics, i.e. Salem, Vancouver, and Long View, during our
breaks and or after work.
We were not informed that SEIU was going to visit Kaiser Permanente
employees at work and ask them to sign cards to indicate that they
wanted SEIU to have monopoly bargaining power.
During the telephone conference, I asked a few questions regarding
benefits and the SEIU's union work rules. I also asked if there was any
option for a vote, if we did not feel that the ``card count,'' also
known as the card-check, method was a valid way to ``vote'' to join a
union. I was advised during that call that there was the ``DANA''
ruling that protected my rights to request a secret ballot
certification election.
To my surprise, just thirteen days later I received an email from
Kaiser Permanente director, Belinda Green, announcing the outcome of
the SEIU ``vote count'' held the day before. According to her email, 49
signed cards were needed to give the SEIU union monopoly recognition
and SEIU had received 50 signed cards.
In those thirteen days, I never received a card or request to sign
a recognition card for SEIU. It appeared to me that the union had
stacked the deck before the July 22nd meeting was even held.
When we were told that in only twelve days SEIU had become our
monopoly bargaining agent, many of my coworkers and I were stunned and
frustrated that we did not have a say in this card count and never had
any ``vote''. I offered to contact the NLRB to inquire about signing a
``DANA'' petition to force a secret ballot election.
We never found out how the Bargaining Committee was selected.
Somehow these folks' names just appeared on the ballot that was
forwarded to us. The names were preselected. Why wasn't everyone in the
office offered an opportunity to be on the ballot?
The whole process seemed to take place in such a small window of
time, although we heard that there were organizing meetings going on in
the evenings prior to SEIU coming into the office. Let me say again, we
were stunned and frustrated that we had not been given a ``vote,'' and
that is why, with the help of The National Right To Work Legal Defense
Foundation attorney Glenn Taubman, we began the process to petition for
a secret ballot election.
With no expectations, a coworker and I approached fellow employees
about signing a petition for a secret ballot election. We weren't sure
if we would be able to obtain the necessary signatures of 30% of our
coworkers, but it was the only way to ensure that our voices were heard
fairly.
Amazingly, we quickly obtained the signatures of 45% of our fellow
employees and filed the Decertification Petition with the NLRB on
August 8. It was exciting to see that so many of my co-workers wanted
the opportunity to have a true vote!
On August 26, we received confirmation from the NLRB that all
parties had agreed to a mail-in secret-ballot vote that would occur on
September 20th. The ballots were to be counted on October 4th.
Everything was set for a vote in which everyone could participate,
one where everyone could vote their conscience knowing it was
confidential.
On August 31st, I learned that the ``DANA'' rights had been
overturned by the NLRB in a case called ``Lamons Gasket.'' I was
shocked and quite upset. I thought, ``How could this be?'' All we were
asking for was a fair vote and a private vote, giving everyone a voice.
If any union is so confident that a simple majority of workers
wants to be represented by them, why would it insist on a ``card
count,'' instead of a secret-ballot election?
I have voted in every Presidential Election, and most of the other
elections, since I was 18. Each time, I either had to be present at the
polling station or mail in my ballot for my vote to count. And, every
time I was reassured by the knowledge that my vote was confidential.
In the United States we have been taught that if we vote, our
voices will be heard, our identities will be protected, and most
importantly that we can make a difference.
Why should the SEIU or any union be allowed to represent workers in
any other way--the ``card-check'' process undermines the privacy and
voices of the very workers they seek to represent?
In the email I sent coworkers announcing the decertification
petition had been approved, I stated that we were going to have the
time and opportunity to review the Union contract and then vote whether
we wanted to be represented by the SEIU Union or not. This was a chance
to have EVERYONE'S VOICE HEARD, without any doubt that this was an
election! Everyone would know what they were voting for!
In fact, following my announcement, Sara Thompson, an SEIU
representative, sent two emails stating ``I encourage everyone to vote
and for every voter to be well-informed before making this decision''.
She went on, ``just like in a presidential election, abstaining is no
vote at all, either way.'' These statements clearly show that SEIU
knows what a vote is supposed to be. So, I ask you this--how could they
ever consider ``card-check'' to be a fair vote?
It is not right to deny workers the opportunity to be fully
informed, and the protections afforded by a secret-ballot election on
such important decisions. In revoking the ``DANA'' decision, the NLRB
has taken away one of the last guarantees workers have of a fair and
honest vote in workplace elections.
For me and my fellow employees however, snatching away those rights
just as an election has been agreed to and a date had been set was
cruel and unethical.
Let me close with some of my colleagues' complaints and concerns
regarding the meetings and Card-Check process.
A couple of employees were approached specifically with cards and
told that they should sign the cards because the Union will provide
better pay and benefits. One coworker said that she felt pressured, so
she signed the card because she was led to believe that she was just
requesting more information by signing.
At least two other staff members said they were on vacation when
the meetings and card-check count took place, and no one informed them
of what was occurring.
One person stated that she had no idea what was going on and was
surprised to read the email that advised that we were now in a Union.
Many did not receive a card and the ones who did either attended a
meeting or were singled out, (or were specifically chosen by SEIU).
A person who attended an ``informational'' meeting said the SEIU
representative couldn't really answer any questions and had only a copy
of the 2009 contract which she kept referring to even though there was
already a 2010-2013 contract.
Many of my colleagues were given the impression that signing was
simply a request for more information. Several coworkers reported rude
treatment when they asked to have their cards retracted. One was told
that ``it didn't matter because they couldn't find her card anyway.''
I thank you for your time and the opportunity to share my
experience, and I look forward to answering any of your questions.
______
Chairman Kline. Thank you.
Mr. Martin, you are recognized.
STATEMENT OF ARTHUR J. MARTIN, PARTNER,
SCHUCHAT, COOK & WERNER
Mr. Martin. Chairman Kline, Ranking Member Miller, thank
you very much for the invitation to----
Chairman Kline. Microphone.
Mr. Martin. Thank you very much for the invitation to
participate today. Let me say that I think the evidence is that
in the year-and-a-half that the Obama board has been operating
that there is no evidence that it is union favoritism. Every
time there is a change, there is a sway back and a sway forth.
And that is all reviewable by the federal courts, and I do not
think anybody will contend that the federal courts are in the
pocket of big labor.
Nevertheless, to address some of the matters that have been
raised today, Lamons Gasket is simply a return, after 4 years
of Bush precedent under Dana, it is a return to 40 years of
precedent operated by Republicans and Democrats. There has
never been any prohibition against voluntary recognition where
employees freely and unencumbered authorize a union to
represent them and an employer with evidence of majority
support for the employer to go ahead and to bargain with the
union.
Ms. Ivey will have her chance to file her decertification
petition. If the union cannot reach an agreement, she can file
a decertification petition. Ms. Ivey, if it turns out that
there is a collective bargaining agreement reached, when that
bargaining agreement expires, she will be able to file a
decertification petition. It just preserves, returns to 40
years of precedent where voluntary recognition is considered a
free and open way to proceed.
The UNICO case that was mentioned is simply a return to
again precedent successor doctrine. What actually happens when
an employer is purchased in the successor case, that is a case
where companies go out and buy another company and there is a
transfer or forced takeover.
That is when the employees are most vulnerable. That is
when they should have a right--they should have every right. It
should not be vulnerable to have their protection--their
representative working on every ask when the successor employer
takes over.
We are all familiar with cases where the successor employer
takes over and finances the purchase with the employee
benefits, lose their pension plan, rearranges their health care
and pay for it. And that is when we need protection.
Specialty health care is a return to 70 years of community
of interest. With all due respect to the former NLRB officer,
in fact the way you determine who is an inappropriate
bargaining unit is community of interest. And the specialty
health care case was simply a case where the nurses freely and
openly chose to be represented by a union, and did not
necessarily care to be--to include the janitors and the other
help. That is--it is incumbent upon the board to simply to
determine what is an appropriate unit in that community of
interest standard has not changed.
Frankly, the complaining about the notice, I went to our
lunchroom and got the notice. It was hard to find because it is
up there with the unemployment notice, with the ADA notice,
with the family notice and every other notice. And it just
simply says what rights are.
And frankly, what it also includes, interestingly enough,
it directs employees to the duties of fair representation that
it is incumbent upon the union to represent the employees. That
is not in the statute, but that is the law. And so it advises
people, and it also advises people that they do not have to
participate in the union. So, it makes it clear. It is no
different than advising people that they cannot be
discriminated against.
The proposed rulemaking about an election simply moves
along the election process. Every employer knows that every
employee serves at their will. And those employers can compel
them to attend a meeting under penalty of discipline to hear
out their position on the union.
There is no problem with employer communication. If we
really wanted clear communication and a full disclosure of what
has been going on you would have to invite the union to those
captive audience meetings. But this board is not going to do
that, and I am sure the committee is not going to do that.
But, if you really wanted to air it out, that is the way
you would do it. But ever employer has the right to continue
their captive audience meetings where employees are compelled
to attend and hear their view.
One of the things that the proposed rule does is limit the
opportunity for multiple litigation by employers and their
attorneys. Not suggesting anybody here would indulge in this,
but it is a practical matter. I have actually had to litigate
the existence of my client.
I have had a case run out where the union has produced the
cards, the union has made a position to represent the people,
we are trying to get an election. Well, that is not even a
union. So, okay, we got to litigate. That gets appealed. That
delays.
And then we go to the election, and then there is a whole
series. There is an opportunity for litigation after that. As a
practical matter--I mean the board, like every other agency has
got to do more with less. And to eliminate the opportunity for
multiple litigation is something we should avoid, and the
board's proposed rules simply streamline that.
And as a practical matter, the unions that I represent are
engaged every day in job preservation, working with employers,
especially since the 2008 collapse, working with employers to
preserve our jobs, shoulder-to-shoulder, cheek-to-jowl with
employers. Thanks.
[The statement of Mr. Martin follows:]
------
Chairman Kline. Thank you.
Mr. King, you are recognized.
STATEMENT OF G. ROGER KING, PARTNER, JONES DAY
Mr. King. Thank you, Mr. Chairman, Ranking Member Miller.
Thank you for having me here again today.
First, we are all frustrated with the National Labor
Relations Board. Democrat, Republican, Independent, labor
management alike. This board has vacillated back and forth over
the years, continues to do so. No question that we need to look
at the NLRB--direction.
Mr. Miller, I noted your remark that this is a small
agency. Yes, it is, compared to the reset of the federal
government. But the Boeing Initiative by this acting general
council has sent shockwaves through this business community and
this country and internationally.
Employers in this country are concerned about whether they
can move a plant without getting to years of litigation and
being accused of being a lawbreaker. Ford employers are now
questioning whether they are even going to put capital in this
country.
This agency is having a very dramatic, albeit negative
impact upon the economy of this country. And I commend this
committee for having this hearing. This agency does need to be
reviewed.
Yes, there are a lot of very fine civil servants that have
worked for years with this agency. They do a good job in
processing election petitions. But it cannot be argued that
this particular board is one of the most activist boards in the
history of the National Labor Relations Act.
And the speed of which its trying to process this agenda is
without precedent. There are no less than eight or nine major
policy initiatives being pursued by this board. That has not
occurred in the past, whether it be a Democrat or Republican
board.
One example is rulemaking. In the history of this agency
there have only been two rulemaking initiatives in the entire
history of the board, 75 years. This particular board in a
matter of a few months is engaged in two rulemaking
initiatives, and I will touch upon both in a moment.
There is no way that anyone objectively could conclude that
this board has not been extremely active. Indeed, from the
perspective of the employer community and others, way too
active in one direction.
With respect to specifics, this board has created
artificial issues, issues that are not even before--in the
cases that come before the board for adjudication, and then
using these artificially created issues to then issue major
policy reversals.
I do want to identify with the remarks of Mr. Mack. Curtis
Mack was one of the most distinguished National Labor Relations
Board civil servants to serve in the agency's history. I agree
totally with his analysis of the case law mentioned.
I cite in my testimony cases where the board has attempted
to artificially create issues. The most glaring are the
proposed new elections rules. The National Labor Relations
Board, for all of its other problems at the regional level at
the career civil service level processes petitions very
efficiently, and has improved upon that record year in and year
out.
We have included in our testimony the win rate indeed that
the unions have had under this processing of petitions. It is
well over 60 percent. And the data, that is not refuted by
anyone, of the efficiency of the processing of these petitions
is excellent. There is no need--no documented record whatsoever
for these new proposed election rules.
Mr. Mack covered quite adequately the Dana case, the
successorship case. I would only note that there have been more
and more recognition agreements in this era than there have
even 10 or 15 years ago. And a recognition agreement between an
employer and a union is not necessarily bad. But it should in
most cases permit an election. And that is really the problem
with the overturning the Dana case.
With respect to the posting of this notice, well it is hard
to argue. I would concur with a notice being posted. But the
issue is much broader than that. This notice is not fair and
balanced. It does not really articulate all the rights that
employees have under the Act.
There are questions, legal questions whether the board even
has the statutory authority to do this. And those are being
challenged by the United States Chamber of Commerce and other
entities. So, we will see how that litigation proceeds.
But the board not only has this new poster, it is saying if
you do not put the poster up, you are guilty of an independent
unfair labor practice charge. And the statue of limitations on
any other pending unfair labor practice could be pulled, could
be extended.
And furthermore, this what I think is really something we
need to think about, if the employer does not put the poster
up, it is going to be somehow deemed to be against unions
generally, union animus. So, that is not right. So, if we are
going to do a posting, let us do it right, indeed if the board
even has that authority.
Finally, on specialty health care, that decision probably
is the most impressive written decision I have seen in a long
time, but it is simply wrong. It overrules years of board
precedent. We would disagree on that. At least 30 years of
precedent. It will result in highly fragmented micro bargaining
units throughout the country.
Finally, on specialty health care, we could see up to seven
or eight units on that theory. This particular decision needs
legislative attention. It is wrong. It will result in a very
negative impact on the economy of this country, particularly on
the small employer up to the large employer.
Mr. Chairman, that concludes my prepared remarks. I will be
happy to answer questions.
[The statement of Mr. King follows:]
Prepared Statement of G. Roger King, Partner, Jones Day
Good morning Committee Chairman Kline, Mr. Miller and Members of
the U.S. House Committee on Education and the Workforce. It is an honor
and pleasure to appear again before the Committee as a witness. My name
is G. Roger King,\1\ and I am a partner in the Jones Day law firm. My
testimony today should not be construed as legal advice as to any
specific facts or circumstances. Further, my testimony is based on my
own personal views and does not necessarily reflect those of Jones Day
or its attorneys. I have been practicing labor and employment law for
over 30 years and I work with employer clients located in various parts
of the country with varying workforce numbers, with a mix of union and
non-union work forces. I have been a member of various committees of
The American Bar Association, The Society for Human Resource Management
(SHRM) and The American Society of Healthcare Human Resources
Association (ASHHRA) and I also participate in the work of other trade
and professional associations that are active in labor and employment
matters. A copy of my CV is attached to the written version my
testimony as Attachment A.
---------------------------------------------------------------------------
\1\ Mr. King can be reached at [email protected]. He would like to
acknowledge his Associate, Scott Medsker, also of the Jones Day Labor &
Employment Practice Group, for his assistance in the preparation of
this testimony.
[Attachment A may be accessed at the following Internet
address:]
http://www.jonesday.com/gking/
Mr. Chairman, I request that the entirety of my written testimony,
and the attachments thereto, be entered into the record of the hearing.
Mr. Chairman, my testimony this morning addresses the following
points regarding the recent initiatives undertaken by the National
Labor Relations Board (``NLRB'', ``the Board'', or ``Agency'').
The unprecedented activist and pro-labor record of the current
Board
The unpredictability and ever-changing nature of Board case law has
been a cause of frustration and a concern for employers, labor
organizations and employees for many years. Further, the procedural and
substantive problems associated with the Board frequently having to
meet its statutory obligations with less than a full complement of
members and the highly politicized process to fill Board vacancies has
proven to be a detriment to the Agency, including the public perception
of its ability to carry out its mission in an unbiased and even-handed
fashion. Substantial policy changes in the direction of the Board, or
as certain academic commentators have noted, ``policy oscillation'' by
the Board have continued to increase in recent years resulting in
allegations from both the labor and management community of the Board
being ``highly politicized.'' Indeed, given the statutory framework
with which the Board was created, and the authority of a sitting
president to nominate a majority of the members of the Board from his
party, or representative of his labor and management philosophy, it is
not surprising that the Board faces substantial obstacles in carrying
out its statutory duties.
The direction of the current Board, however, is troubling. Indeed
many from the employer community believe that the Board will not judge
the merits of any case before it on an unbiased basis. Irrespective of
one's feelings and position on labor-management issues, objectively,
the current Board, through adjudication, rulemaking and proposed
rulemaking, has implemented one of the more active agendas pursued by
any Board in the history of the Agency. Further, it has engaged in
these initiatives in a timeframe that is perhaps also unmatched in any
other period in the over 75 years since the Board was established. Such
recent activism reached an unfortunate high point on August 26 of this
year.\2\ On that day, the Board overturned substantial precedent in at
least three cases.\3\ These decisions furthered an already activist
agenda and represented part of a regulatory approach that has resulted
in at least nine major policy initiatives by the Board in the last few
months, all designed to further the ability of a union to either become
the representative of employees in a small or fragmented bargaining
unit, or to avoid altogether a secret ballot election. Such regulatory
activism comes at a time when President Obama and other in his
administration have instructed federal agencies to reduce regulatory
red tape and enhance, however possible, measures to ensure job
retention and job creation. One example of the current Board's activist
agenda is its initiatives to pursue two rulemaking proposals within a
period of a few short months, contrasted with the cautious and
thoughtful approach that Boards in both Republican and Democrat
administrations have taken in this area. Indeed in the history of this
Agency it has only engaged in two rulemaking initiatives, only one of
which was successful--the Acute Healthcare Bargaining Unit Rules.
---------------------------------------------------------------------------
\2\ Former Chairman Wilma Liebman's term expired on August 27,
2011, leaving the Board with now-Chairman Mark Pearce and recess-
appointed Member Craig Becker, both Democrats, and Member Brian Hayes,
a Republican.
\3\ There may be other cases in which former Chairman Liebman
participated but the Agency has yet to formally release such decisions.
---------------------------------------------------------------------------
Mr. Chairman, I know there are certain viewpoints in the employer
community that would welcome the demise of the National Labor Relations
Board. Certainly I have heard comments welcoming the Board's shutdown
if it is reduced to a two-member status at the end of this year, which
is possible given the fact that Member Becker and nominee Terence
Flynn's nominations are still pending in the Senate, and Member
Becker's recess appointment expires on December 31. As you are aware,
pursuant to the U.S. Supreme Court's decision in New Process Steel,
L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010), the Board will not be
able to adjudicate cases in such a status. I do not agree with this
line of thinking, as I believe it is quite important to have an
adjudicatory body in this country available to resolve workplace
disputes. Notwithstanding the current controversies surrounding the
Board, I believe that representatives of management, labor, and other
constituencies would concede that the Board over the years has helped
contribute to the overall labor relations stability in this country,
particularly compared to the constant labor unrest and difficulties
evidenced in other parts of the world. There are many fine employees
that carry out the Board's mission of promptly and efficiently
conducting elections and resolving, in an expeditious manner, day to
day workplace disputes. Perhaps the structure of the Board and its
underlying statutory framework do need to be reexamined. But it is
exceedingly important that we have a neutral and unbiased agency
available to resolve issues that arise between labor and management.
For the reasons outlined below, Mr. Chairman, however, the current
direction of the Board, including the ill-advised complaint issued by
the Board's Acting General Counsel against the Boeing Company, needs to
change course. All parties--labor, management, and employees--that
bring matters before the Board deserve to have their disputes
adjudicated and resolved in an unbiased and consistent manner.
Artificial creation of issues by the Board for policy change
While the Board certainly has the authority to engage in both
adjudication and rulemaking, a deeply troubling trend has emerged from
the current Board wherein it has been deciding issues that are not
actually before it, and even more troubling, making changes to law and
procedure where no changes are warranted.
For example, in Specialty Healthcare and Rehabilitation Center of
Mobile, 357 NLRB No. 83 (Aug. 26, 2011), no party to the case asked the
Board to overturn Park Manor Care Center, 305 NLRB 872 (1991), nor did
they ask the Board to consider the Park Manor standard, which had been
applied for twenty years by both Republican and Democrat Boards.
Rather, the party seeking review in that case asked the Board to
consider whether the Regional Director erroneously failed to apply the
standard at all. See 357 NLRB No. 83, at *18. Nonetheless, the Board,
of its own volition, posed the question of whether Park Manor should
continue to be followed and then proceeded to overturn Park Manor.
Additionally, on an even more important note, the Board created a
particularly disturbing new element to the community of interest test
for bargaining unit determinations, which I will discuss in a moment.
Member Hayes suggested that the Board's actions were intentional,
stating that ``[t]hey know full well that a petitioned-for CNA unit
would ordinarily be found inappropriate under the Park Manor test, but
it serves their greater purposes to overturn that test to get to the
issue they really want to address, that is, a reformulation of the
community-of-interest test.'' Id.
Likewise, in Roundy's Inc., Case No. 30-CA-17185, the Board asked
interested parties to comment on ``[w]hat bearing, if any, does
Register Guard, 351 NLRB 1110 (2007), enf. denied in part, 571 F.3d 53
(D.C. Cir. 2009), have on the Board's standard for finding unlawful
discrimination in non-employee access cases?'' While Register Guard's
first holding that employer e-mail systems should be treated as
employer property for Section 7 purposes under the National Labor
Relations Act (``NLRA'' or ``the Act'') is not even arguably at issue
in Roundy's, Inc., it would be improper for the Board to attempt to
reverse Register Guard's second holding, which defined
``discrimination,'' through Roundy's Inc.
Further, the Board's Notice of Proposed Rulemaking (NPRM) regarding
representation case procedures may be the most egregious example of the
Board overreaching to change precedent and procedure without any basis
whatsoever for doing so. Indeed, based on the Board General Counsel's
Annual Summary of Operations, the Board is routinely exceeding its own
time targets for representation cases. The NLRB's internal objective in
representation cases is to complete elections within 42 days of the
filing of a petition. See NLRB General Counsel, Summary of Operations
(Fiscal Year 2010), G.C. Mem. 11-03, at 5 (Jan. 10, 2011). In 2010,
regional offices of the Board exceeded this objective completing
initial elections in representation cases in a median of 38 days from
the filing of the petition and conducting 95.1% of all initial
representation elections within 56 days of the filing of a petition.\4\
---------------------------------------------------------------------------
\4\ Decisions or supplemental reports issued in cases involving
post-election objections and/or challenges requiring a hearing were
issued in a median of 70 days, exceeding the Board's goal by 10 days.
Decisions or supplemental reports issued in cases addressing post-
election objections and/or challenges not requiring a hearing were
issued in a median of 22 days, also exceeding the Board's goal by 10
days. See NLRB General Counsel, Summary of Operations (Fiscal Year
2010), G.C. Mem. 11-03, at 5 (Jan. 10, 2011)
---------------------------------------------------------------------------
Finally, the union win rate in petitions going to an election has
consistently exceeded 60% in recent years as demonstrated by the
following chart relying on Board statistics.
Simply stated, the Board, in recent months, has proceeded to create
its own agenda, irrespective of the issues presented to it in its case
adjudication and in the rulemaking area has also proceeded to attempt
to implement change without an established need or record to support
such initiatives.
Establishment of ``gerrymandered'' bargaining unit
determination standard that will result in fragmented and
numerous micro or small units
On August 26, 2011, the Board released its decision in Specialty
Healthcare. The Board in this 3-1 decision, over the dissent of Board
Member Brian Hayes, not only overturned the standard for unit
appropriateness determinations in the non acute health care industry
which had been in place for 20 years, but also significantly altered
its traditional community of interest test explaining that the Board
would no longer address whether the petitioned-for unit is
``sufficiently distinct'' to warrant a separate unit. The latter part
of this holding, additionally, reverses a 30-year old standard that had
been applied by Republican and Democrat Boards and that the current
Board cited with approval as recently as last year. Indeed, such
approval included an affirmative vote by then Chairman Liebman. See
Wheeling Island Gaming, 355 NLRB No. 127 at *1 fn. 2 (Aug. 27, 2010)
(citing, Newton Wellesley Hosp. 250 NLRB 409, 411-12 (1980)). The
Board's decision in Specialty Healthcare may turn out to be one of the
most significant reversals of precedent in recent Board history and
may, in fact, lead to a multiplicity of small and fragmented bargaining
units in virtually every employer's workforce in the country. One would
be hard pressed to think of an initiative by a federal agency that
could have had a more of a negative impact on job retention, job
creation, and productivity in this country. For example, as Member
Hayes noted in his dissent, the employer in Specialty Healthcare beyond
now being required to recognize a union that represents only its
certified nurse assistants,\5\ could also find itself dealing with
separate bargaining units of RNs, LPNs, cooks, dietary aides, business
clericals, and residential activity assistants. See 357 NLRB No. 83 at
*19. Further, those units would be incredibly small, with the dietary
aides having only 10 members, the cooks three members, and the activity
directors unit consisting of only two employees.
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\5\ The Board recently opened the ballots that were impounded in
the Specialty Healthcare election and the union prevailed by a vote
count of 39-17.
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The Board's proposed expedited (quickie) election rules lack a
factual foundation, are not consistent with the federal rules
of civil procedure and sound administrative law principles, and
violate fundamental due process rights of employees and
employers
The Board, on July 22, 2011, in another 3-1 decision, again over
the dissent of Member Hayes, published an extensive and far reaching
number of proposed new election rules--the most extensive proposed
rulemaking changes in the Board's history. Such proposed rules would
modify over 100 sections and subsections of the current Board
Regulations and include changes which span over 35 3-column pages of
the Federal Register. Further, the Board, over the objection of a
number of employer groups, including HR Policy Association (HR Policy),
SHRM, the U.S. Chamber of Commerce and other similar groups, required
all interested parties to file comments regarding such proposed rule
changes within only a 60-day period and refused to extend such comment
period. Indeed, the 60-day period for comments is the minimum amount of
time under President Obama's Executive Order 13,563 and, given the
extensive nature of such proposed rules, such time period should have
been extended.
Likewise, Executive Order 13,563 requires that ``[b]efore issuing a
notice of proposed rulemaking, each agency, where feasible and
appropriate, shall seek the views of those who are likely to be
affected, including those who are likely to benefit from and those who
are potentially subject to such rulemaking.'' (Emphasis added.)
However, the Board did not do so for the vast majority of the proposed
rules in the NPRM.\6\ The Board's disregard of the requirements of
Executive Order 13,563 not only demonstrates administrative agency
arrogance, but is also a one-sided and extremely biased approach with
respect to how the important process of conducting secret ballot
elections should be carried out by the Agency.
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\6\ The only areas where the Board did solicit input in its
rulemaking proposals included (i) a request for interested parties to
comment on a change in the Board's ``blocking charge'' policy, which
pertains to the procedure where elections are held in abeyance during
the pendency of resolution of unfair labor practice charges; (ii) what
remedies, if any, should be imposed on improper release of confidential
employee information; and (iii) whether the Board should permit
electronic signatures on union authorization cards.
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If the Board intends to publish a Final Rule, it must affirmatively
vote to do so while it still has a quorum of three members before
December 31, 2011. The last comments submitted to the Board were
submitted on September 7, 2011. Based on the number of working days
remaining between September 7 and December 31, the Board would need to
review over 650 comments per day to consider all 51,576 comments.
Simply put, if the Board proceeds to issue a Final Rule in such a time
frame, it will be hard for individuals to accept that the Board
actually read and thoughtfully considered the comments submitted.
The proposed rules are literally a procedural and substantive
``mine field'' for employers. There are a considerable number of
procedural and substantive deficiencies with such proposed Board rules,
which are outlined later in my testimony.
The Board's reversal of precedent in its Lamons Gasket and
URL-Unicco Service Co. decisions also evidences its ideological
approach to case law adjudication, and such decisions
inappropriately will delay or deprive employees of the rights
to vote in Board-conducted secret ballot elections
Again, on August 26, 2011, the Board reversed its 2007 decision in
Dana Corp., 351 NLRB 434 (2007) (Dana I). The decision in question,
Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2007), eliminated a 45-day
period for employees to exercise their Section 7 rights to file a
decertification petition or for a rival union to file a petition after
an employer voluntarily recognized a union and before the Board's
recognition bar could take effect. Under this decision, employees will
now be prohibited from filing a petition for election for ``a
reasonable period of time,'' which the Board defines as ``no less than
6 months after the parties' first bargaining session and no more than
one year.'' Id. at *10. Member Hayes, again in dissent, characterized
the Board's decision as ``a purely ideological policy choice, lacking
any real empirical support and uninformed by agency expertise.'' Id. at
*11.
There are numerous policy considerations that encourage and support
employers and unions from entering into recognition agreements. A wide
variety of such agreements have resulted in labor relations stability
between unions and employers, including particularly those that
culminate with a Board-conducted secret ballot election. Under such
agreements, if the union is successful, it obtains the ``election bar''
protection for a minimum of one year, in most circumstances,
restricting the right of a rival union to intervene and to permit the
parties to negotiate a collective bargaining agreement. However, it is
difficult to understand Labor's negative reaction to the Board's
holding in Dana I and the Board's subsequent criticism of Dana in
Lamons Gasket Co. As the majority in Lamons Gasket Co. noted, election
petitions were only filed in 102 of the 1,333 requests for Dana
notices. Id. at *4. Moreover, elections only occurred in 62 cases, with
the voluntarily-recognized union winning the vast majority of those
elections. Simply stated, it is difficult to understand why providing
employees with notice of their rights to an election in Dana cases was
so repugnant, particularly when the Board was contemporaneously
requiring the posting of employee rights in other scenarios.
In the third decision, also issued on August 26, 2011, on another
3-1 vote, again over the dissent of Member Hayes, the Board
considerably narrowed the opportunity for employees to determine, by
secret ballot election, whether an incumbent union should continue to
be recognized after the sale of a business. UGL-UNICCO Service Co., 357
NLRB No. 76 (Aug. 26, 2011). This case involves the federal labor law
``successorship doctrine'' wherein an employer that purchases the
assets of a unionized business and retains at least a majority of the
seller's unionized workforce must recognize and bargain with the
incumbent union. Under this doctrine, an employer has the legal option
not to accept the current terms and conditions of employment and
bargain with the incumbent union for a new contract. Such employer also
has the option to adopt the existing bargaining agreement. If the
employer elects the option to bargain for entirely new terms and
conditions of employment, it now will be penalized, as will the
employees in question, by the imposition of a bar prohibiting an
election for one year after the commencement of bargaining. If, however
the employer accepts the collective bargaining agreement as the
starting point for bargaining with the incumbent union, such an
election would only be barred for six months. In either case, the
impact is that employees will lose the rights that they previously had
to have a secret ballot election conducted shortly after the
transaction in question and may ultimately be denied all together, any
right to participate in a Board-conducted secret ballot election to
determine whether the incumbent union still represents a majority of
bargaining unit members.
The Board's language in its new mandated workplace poster is
not balanced, and the Board, in all likelihood, has exceeded
its statutory authority by implementing such rule
On August 30, 2011, on a 3-1 vote, again over the dissent of Member
Hayes, the Board published a Final Rule requiring all employers subject
to the NLRA to post notices informing their employees of the right to
unionize under the NLRA and to engage in collective bargaining. See 76
Fed. Reg. 54,006 (Aug. 30, 2011) (to be codified at 29 C.F.R. Sec.
104). The Board engaged in this action despite President Obama's
Executive Order 13,563, which directs federal agencies to minimize the
imposition of new rules and follow certain requirements, as discussed
above. This new rule also creates a new category of unfair labor
practices dictating that employers who fail to post the required notice
will be found to have violated 29 U.S.C. Sec. 159(a)(1). Additionally,
the Board will consider, under such new rule, ignoring the six-month
statute of limitations period contained in 29 U.S.C. Sec. 160(b) if an
employer fails to post the notice. Finally, under such new rule, an
employer that fails to post the notice may also be found by the Board
to have illegal motives and ``animus'' toward a union in a wholly
independent unfair labor practice proceeding, thereby shifting the
presumption of guilt on to an employer in such a proceeding.
This new rule has already been challenged by a number of employer
groups in federal district court and even if such courts ultimately
conclude that the Board has the statutory authority to require the
posting of such notices, the language in the Board's poster does not
include a complete statement of all of the rights that employees have
under the NLRA, nor does the Board's required language include a clear
and concise statement of the rights of employees to decide not to form
and join a union or to decide not to continue to remain in a union.
Member Hayes, in his dissent to the new rule, estimated that such rule
will impose new obligations on approximately six million employers, the
vast majority of whom are small or mid-size employers.
The Board's activist agenda demonstrates a disregard for sound
public policy, has resulted in rejection of Board precedent
with less than a full complement of members and undermines the
agency's credibility and neutrality
As noted above, prior to the expiration of former Chairman
Liebman's term, the Board only had three confirmed members (Chairman
Liebman, Member Mark Pearce and Member Hayes). Member Becker was
serving, and continues to serve, on a recess appointment basis. It is
submitted that the Board should not proceed to overturn precedent and
engage in such an activist agenda with only three members, particularly
since only two have been confirmed by the United States Senate. I
realize that there are differing views on what the Board practice has
been in the past with respect to overturning precedent without a full
Board being confirmed. When I previously testified before this
Committee on a similar topic, I quoted former Chairman Liebman's
dissent in Teamsters Local 75 (Schreiber Foods), 349 NLRB 77, 97
(2007), where she stated that, ``[g]iven the Board's well-known
reluctance to overrule precedent when at less than full strength (five
Members), the Board could not have been signaling to the court that a
full-dress reconsideration of Meijer was in the offing.'' In a February
25, 2011, publicly-released letter to Subcommittee Chairman Roe, then
Chairman Liebman took issue with my citation to her quote. See Ltr. to
Chairman Roe, February 25, 2011, attached hereto as Attachment B.
Although the cite to former Chairman Liebman's quote was correct, she
went on to explain her position by stating that ``[t]he Board's
tradition * * * is not to overrule precedent with fewer than three
votes to do so,'' citing to Hacienda Resort Hotel & Casino, 355 NLRB
No. 154 at *2 fn. 1. In that footnote, she and then Board Member and
now Chairman Pearce explained that ``[d]uring those relatively rare
periods when it has had only three members, the Board has not hesitated
to reverse prior decisions, where there was a unanimous vote to do
so.'' Id. (emphasis added). Given the fact that there are now only
three sitting members of the Board (including only two confirmed Board
Members), one would expect the Board to follow its ``tradition'' not to
reverse precedent--whether by adjudication or rulemaking--without three
votes to do so. Will the present Board, under the leadership of
Chairman Pearce, follow his previous commitment on this point?
[Attachment B may be accessed at the following Internet
address:]
http://www.laborrelationstoday.com/uploads/file/
chairmancommitteeletter.pdf
Additional considerations regarding the Board's specialty
healthcare decision
The Board's decision in Specialty Healthcare is, as noted above,
flawed for a number of reasons. Not only did the Board reach an issue
that was not actually before it--whether to reverse Park Manor--but the
Board then went further to apparently modify the long and well accepted
community of interest standard as applied to all employers.\7\ The
Board's decision appears to invite unions to petition for the
narrowest-possible unit and is particularly flawed for a number of
legal reasons. Such substantive legal issues and concerns are outlined
in detail in the amicus brief filed with the Board in this case by the
Coalition for a Democratic Workplace and HR Policy Association. A copy
of such amicus brief is attached hereto as Attachment C.
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\7\ Employers in the acute care industry, where unit
appropriateness determinations are governed by separate Board
regulations, will continue to apply those regulations. See 29 C.F.R.
Sec. 103.30.
[Attachment C may be accessed at the following Internet
address:]
http://www.nlrb.gov/case/15-RC-008773
The Board's decision in Specialty Healthcare attempts to establish
an entirely new and difficult standard--the overwhelming community of
interest test--for an employer to meet if it attempts to expand a unit
which is petitioned for by a union. The Board stated such new standard
as follows:
When employees or a labor organization petition for an election in
a unit of employees who are readily identifiable as a group (based on
job classifications, departments, functions, work locations, skills, or
similar factors), and the Board finds that the employees in the group
share a community of interest after considering the traditional
criteria, the Board will find the petitioned-for unit to be an
appropriate unit, despite a contention that employees in the unit could
be placed in a larger unit which would also be appropriate or even more
appropriate, unless the party so contending demonstrates that employees
in the larger unit share an overwhelming community of interest with
those in the petitioned-for unit.
357 NLRB No. 83 at *12-13 (emphasis added) (footnotes omitted). One
significance of this description of the post-Specialty Healthcare unit
determination analysis is that it omits a critical step that the Board
reaffirmed just last year. In Wheeling Island Gaming, Inc., 355 NLRB
No. 127, then-Chairman Liebman and Member Schaumber wrote that:
the Board's inquiry never addresses, solely and in isolation, the
question whether the employees in the unit sought have interests in
common with one another. Numerous groups of employees fairly can be
said to possess employment conditions or interests in common. Our
inquiry--though perhaps not articulated in every case--necessarily
proceeds to a further determination whether the interests of the group
sought are sufficiently distinct from those of other employees to
warrant establishment of a separate unit. The Board has a long history
of applying this standard in initial unit determinations.
Id. at *1 fn. 2 (internal quotation and citation omitted).
After Specialty Healthcare, it appears that a union is no longer
required to identify a unit that is ``sufficiently distinct'' from
other employees to warrant considering them an appropriate unit. As a
result, it is reasonable to expect that unions will seek smaller or
micro units with fewer employees, making it far easier to win elections
and obtain a foothold in previously unorganized employers or to expand
union presence in partially unionized work settings. Indeed, it is easy
to track the objective of the Specialty Healthcare majority here by
reviewing historical NLRB data that establishes clearly that the
smaller the voting unit, the greater the chance the union has to
prevail. A chart outlining such data, prepared by Professor
Bronfenbrenner of Cornell University, states as follows:
Source: The Impact of Employer Opposition on Union Certification
Win Rates: A Private/Public Sector Comparison, Kate Bronfenbrenner and
Tom Juravich, Cornell University ILR School, Oct. 1, 1994.
The increased potential for gerrymandered numerous smaller units,
however, also presents additional significant issues for both employers
and employees. In Specialty Healthcare itself, Member Hayes noted that
the majority's rule could produce separate appropriate units for
registered nurses, licensed practical nurses, cooks, dietary aides,
business clericals, and residential activity assistants. See 357 NLRB
No. 83 at *19. Thus, counting the CNA-only unit approved by the
majority, Specialty Healthcare--an employer of approximately 100
employees, see id. at *13--could find itself with seven bargaining
units, seven collective bargaining agreements, seven discipline
schemes, seven wage and benefits schemes, etc. Each bargaining unit
will also likely seek to protect work performed exclusively by unit
members, attempting to put contractual walls around the unit's work.
Doing so impairs an employer's ability to assign work in the most
efficient manner, resulting in a loss of productivity that detracts
from, rather than enhances, economic competitiveness.
Beyond facing these administrative burdens, employers would find
themselves at increased risks of work stoppages at the hands of
multiple units, each of which could halt the employer's operations if
their bargaining demands were not met. See Continental Web Press, Inc.
v. NLRB, 742 F.2d 1087 (7th Cir. 1984) (noting that ``[t]he different
unions may have inconsistent goals, yet any one of the unions may be
able to shut down the plant (or curtail its operations) by a strike.'')
Thus, an employer balkanized into multiple units faces not only the
costly burden of negotiating separately with a number of different
unions, but also with the attendant drama and potential work
disruption, coupled with a threat that its operations could be ceased
by self-interested fractions of the workforce. See id. Such risk is
particularly high for small businesses, who almost certainly would lack
the long-term reserves to withstand a shutdown. Their options--
capitulate or close shop--are bleak not only for the business owners,
but also for the employees of those small businesses.\8\
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\8\ The Board's NPRM concludes that the proposed representation
case procedures will not have a significant impact on a substantial
number of small entities and, as such, the Board is not required to
comply with the Regulatory Flexibility Act, 5 U.S.C. Sec. 601 et seq.
See 76 Fed. Reg. 36,833. Such statement is simply unsupportable. For
all the reasons stated herein and in the comments submitted by numerous
small business, the Proposed Rule would have a profound impact on small
businesses. The Board's similar decision to not comply with the
Regulatory Flexibility Act with respect to the Notice Posting Final
Rule is one of the bases for the U.S. Chamber of Commerce's lawsuit
challenging the Final Rule.
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An increase in the proliferation of bargaining units also limits
the rights of employees within the workforce. Allowing the type of
narrow units approved by Specialty Healthcare creates the risk that the
workforce will fracture based on the communities of interest as defined
by a regional director, rather than on the underlying functional
realities of the positions. I am most troubled, however, by the
potential freezing effect that fragmented units would have on employee
advancement. When the varied collective bargaining agreements
inevitably have differing provisions on transfers, promotions,
seniority, position posting and preference, etc., it will be extremely
difficult--if not impossible--for an employee whose unit is limited to
his or her unique job description to develop his or her career.
Unfortunately, as reflected in the attached brief submitted by
Coalition for a Democratic Workplace and HR Policy Association, these
arguments were submitted to the Board and were rejected. The Board's
decision creates real threats not only to labor relations, but also to
the ability of employers to remain competitive in this economy and
provide the jobs the current Administration seeks. I encourage the
Committee to seriously consider whether the Board's decision in
Specialty Healthcare is true to the Labor Management Relations Act's
goals of regulating dealings between employees and employers while
``promot[ing] the full flow of commerce. * * *'' 29 U.S.C. Sec.
141(a). It appears that legislative relief will be needed to correct
this unfortunate decision.\9\
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\9\ If, as expected, the Board has only two sitting members at the
end of 2011 and, therefore, pursuant to the U.S. Supreme Court decision
in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (June 17, 2010),
will be precluded from engaging in adjudication, the decision in
Specialty Healthcare will continue to be Board law for the foreseeable
future and therefore will be applied by the Board's various regional
directors. An employer faced with application of Specialty Healthcare
at that point would not have an avenue for appeal, given the fact that
the Board in Washington would not be permitted to issue a decision in
the case in question until a third Board member is either appointed or
confirmed. Further, given the fact that the only avenue for an employer
to contest such unit determination matters is to refuse to bargain,
have the Board's General Counsel issue a Section 8(a)(5) refusal to
bargain charge and appeal the ultimate issuance of a complaint by the
Board on such charge to a United States Circuit Court of Appeals, there
may be more than the usual delay in having the decision in Specialty
Healthcare overturned.
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Additional considerations regarding the Board's proposed
election rules
While the Board's rulemaking regarding representation case
procedures is still pending, there is reason to be concerned that, as
with the notice posting rulemaking, there will be very little change
between the Board's Proposed Rule and the Final Rule. Indeed, as noted
above, the scope and reach of such proposed rules are unprecedented and
exceedingly complex. They are also extremely controversial. For
example, as of Monday, September 19, 2011, the Board's rulemaking
docket on www.regulations.gov contained 51,576 public submissions or
comments in response to the Board's Notice of Proposed Rulemaking. I
encourage the Committee and its staff to review a sampling of the
comments. Some comments, particularly those submitted by individual
citizens, reveal a deep-seeded distrust of the Board's motives in the
rulemaking, indicating that the Board is, in fact, losing institutional
credibility. But other comments illustrate that the Board's Proposed
Rule makes for poor labor policy both procedurally and substantively.
Excerpts from the comments submitted by HR Policy Association and SHRM
are attached as Attachment D.
[Attachment D may be accessed at the following Internet
address:]
http://www.hrpolicy.org/downloads/2011/
NPRM_Representation_Case_Procedures.pdf
From a procedural standpoint, the Board has engaged in this
rulemaking on an highly accelerated timetable, without first soliciting
input from interested parties, apparently to make a decision while the
Board still has an operating quorum--albeit with one Member whose
nomination stalled in the Senate. The Board's NPRM proposed to modify
over 100 sections and subsections of the current Board regulations--
changes which spanned over 35 three-column pages of the Federal
Register. As discussed above, the Board's allowance of 60 days may be a
permissible amount of time for an agency to accept comments, and is the
minimum amount of time under Executive Order 13,563. But, when various
organizations filed a request to extend the comment period, the Board
denied the request, requiring parties to comment on extensive
modifications to the Board's representation case procedures in an
unreasonably short period of time. The Board's additional failure to
follow the Executive Order's requirement of seeking input from
interested parties before issuing an NPRM is also unfortunate.
Another procedural flaw with the rulemaking involves the Board's
current composition. While, as discussed elsewhere, the Board may
decided to adopt, on a 2-1 vote, a rule that reverses precedent, doing
so would violate the Board's ``tradition'' of requiring at least three
votes to reverse precedent, as recognized by former Chairman Liebman
and current Chairman Pearce, and would be exceedingly poor public
policy and create unfortunate precedent. As the Board's NPRM notes,
there have been few, if any, substantial changes to the Board's
representation case procedures for the past 70 years. See 76 Fed. Reg.
36,813-14. It is difficult to understand what reason there is to change
the rules now, in a matter of months, other than opportunism.
Substantively, certain comments submitted to the Board, including
those of HR Policy Association and SHRM, objected that the Board's
proposed changes were in excess of the Board's rulemaking authority,
were substantively unnecessary, were contrary to the Act, or all of the
above. Further, the proposed rules evidence exceedingly poor public
policy and, in all likelihood, will exacerbate, rather than alleviate,
labor tension between employers and employees and, in the pursuit of
faster elections, it sacrifices the Board's appearance as a neutral
party.
For instance, one of the central changes contained in the NPRM is
the requirement that the non-petitioning party--almost always the
employer--raise every potential issue at the initial election hearing
or waive those issues. As a result, there is a significant risk that
the employer will follow the approach of civil defendants in lawsuits
and litigate every potential issue to avoid the risk of waiver. Doing
so would only extend, rather than accelerate, pre-election hearings.
Another central change is the so-called 20% rule, which would
require an election hearing officer to close the hearing and the
regional director to direct an election when the only issue in dispute
involves the voter eligibility of less than 20% of the voting unit. It
appears that the result of the 20% rule is that an election would occur
with the voting eligibility and unit placement of those individuals in
doubt, only to be resolved in the event that their votes would
determine the outcome of the election, in which case a hearing would be
held and none of the NPRM's desired time saving would have been
achieved. Accordingly, the likely result of the proposed rule change is
that the dispute will have been prolonged with the status of the
employees in question remaining in dispute. Not only does this increase
labor tension in the workplace and on specific individual employees,
but it also is contrary to the Act's goals of ``encouraging practices
fundamental to the friendly adjustment of industrial disputes.'' 29
U.S.C. Sec. 151.
The Board's Proposed Rule is also flawed in that it conflicts with
portions of the Act and, by doing so, likely violates both the Board's
rulemaking authority under Section 6 and Section 706(2)(A) of the
Administrative Procedure Act, which requires that any rule promulgated
by the Board must not (1) conflict with any other portions of the Act;
or (2) be arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law. 29 U.S.C. Sec. 156; 5 U.S.C. Sec.
706(2)(A). Specifically, by so drastically limiting the scope of the
pre-election hearing and allowing the regional director or hearing
officer to deny the non-petitioning party a meaningful pre-election
hearing through the 20% rule, the Proposed Rule is directly
contradictory to Section 9(c)(1) of the Act, which requires the Board
to hold ``an appropriate hearing'' prior to an election.
The Board's NPRM on representation procedures also requested
parties to comment on what sanctions, if any, should be imposed on
organizations that impermissibly utilize or disseminate employee
confidential information that would be required in the lists to be
furnished to such organizations in the pre-election period. 76 Fed.
Reg. 36,821. Hopefully the Board will reconsider its new requirement
that employers provide personal telephone numbers and personal e-mail
addresses to the Board and the petitioning party. However, if the Board
should ultimately implement a rule requiring dissemination of such
information, in addition to available state and federal legal remedies,
the following sanctions should be imposed:
Any organization improperly utilizing or disseminating
employee confidential information should be prohibited, for one year
following the misuse of such information, from filing any petition for
representation for any bargaining unit with the NLRB.
Any organization improperly utilizing or disseminating
such employee confidential information should be required to take all
reasonable and appropriate steps to remedy the violation.
Any organization improperly utilizing or disseminating
such information should be required to send, to each employee whose
information has been improperly used and disseminated, a letter of
apology. Such letter should describe what steps have been taken to
remedy the improper use of the information.
The potential information that an employer may be required to
furnish to the Board and petitioning parties regarding its employees,
however, is not just information of great importance to employees. Such
information also constitutes important employer property. Indeed, the
inappropriate release and utilization of such information could lead to
improper recruiting of valuable company employees not to mention other
interference by third parties with the employer's workers. As such,
petitioning organizations should be required to treat such employer
property with the utmost care.
Additionally, not only does the NPRM make substantial changes to
the rules of representation cases, but it also then strips the right to
review of decisions made under those new rules. The Proposed Rule
strips from employers any right to review the hearing officer's
determinations prior to an election and, in nearly all cases, even
after an election. Instead, if an employer believes that the election
was improper, the fastest avenue to review will be to refuse to
bargain--clearly contrary to the Act's goals of resolving disputes--and
litigate the resulting Section 8(a)(5) violation through an
administrative law judge, the Board, and finally a U.S. Court of
Appeals. In that instance, again, the desired time-saving aspects of
the NPRM are lost.
The Board's proposed changes--ending the hearing when only 20% of
the unit is left in dispute, stripping appeal rights, etc.--are all in
the sake of holding faster elections. The Proposed Rule requires that
the pre-election hearing be held within seven days of the petition
being filed--an unreasonably short amount of time--and, once the
hearing is completed, an election directed without post-hearing briefs,
decisions on open issues, or further appeal on ``the earliest date
practicable consistent with th[e] rules.'' See 76 Fed. Reg. 36,838
36,842 (to be codified at 29 C.F.R. Sec. Sec. 102.63(a)(1),
102.67(b)). Such a truncated ``quickie'' election process threatens to
eliminate the ``appropriate hearing'' required by Section 9(c)(1) of
the Act and does so unnecessarily, given the Board's current success
against its own targets for representation case processing as discussed
previously above.
Further, but perhaps most substantively problematic, is the one-
sidedness of the proposed changes. Under the proposed rule, the
employer has an obligation to raise every potential issue or waive
raising it at a later date. The employer also has the obligation to
propose what unit it would stipulate was appropriate, assuming that the
employer does not consent to the petitioned-for unit. Indeed, this
obligation will now be even more challenging with the Board's confusing
``overwhelming community of interest'' standard established in its
Specialty Healthcare decision. The proposed rule requires the employer
to provide voter eligibility lists within hours of an election being
directed, and requires that the list include private information of the
employer's employees, including home addresses, telephone numbers, and
e-mail addresses.
Finally, it is important to understand the potential dual impact of
the Board's decision in Specialty Healthcare and its objective with
respect to the proposed new election rules. Simply stated, the proposed
rule provides unions with faster elections and Specialty Healthcare
gives the unions smaller units that are easier to win. Such two-pronged
approach will result in all probability in numerous highly-fragmented
voting units with virtually no time for employers to state their
position and more importantly for employees to intelligently
communicate with one another regarding the merits or lack thereof of
unionization. As noted above, the Board has been extremely efficient in
the processing of petitions for election and, as also noted, the
union's ``win rate'' is already in excess of 60%. Accordingly, there
simply is not a documented need or logical reason for the Board to
proceed to adopt its proposed new election rules.
Other pending Board cases of significance
In addition to the above outlined-matters, there are other cases
pending before the Board that raise significant legal and policy
issues. In each of these cases, the Board has requested participation
by interested parties in the form of requests for amicus briefs.\10\
Such cases include the following:
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\10\ Copies of the Board's Notices and Invitations to File Briefs
and filed briefs can be found on the Board's website at http://
www.nlrb.gov/cases-decisions/invitations-file-briefs.
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Roundy's Inc.--In Roundy's Inc., the Board proposes to
return to a line of cases twice rejected by a United States Court of
Appeals. Specifically, the Board is considering a return to the rule
that ``an employer that denies a union access while regularly allowing
nonunion organizations to solicit and distribute on its property
unlawfully discriminates against union solicitation.'' The Board also
appears to be considering whether to use Roundy's Inc. as a vehicle to
overturn Register Guard, 351 NLRB 1110 (2007), setting forth the
definition of ``discrimination'' over then-Member Liebman's dissent.
DR Horton, Inc.--In DR Horton, Inc., the Board will
address whether an employer violates Section 8(a)(1) of the Act by
maintaining and enforcing an arbitration agreement requiring employees,
as a condition of employment, to (1) submit all employment disputes to
individual arbitration, (2) waive their rights to a judicial forum for
such disputes, and (3) waive the right to consolidate claims or proceed
as a class or collective action.
Hawaii Tribune-Herald--The Board in Hawaii Tribune-Herald
appears poised to expand whether, and if so when, an employer has an
obligation to provide a union with statements it obtains during an
investigation into employee misconduct. The Board's Notice and
Invitation to File Briefs explains that current Board precedent does
not require employers to produce ``witness statements'' that it obtains
during an investigation. The Board has stated it is seeking a clearer
definition of what constitutes an exempt ``witness statement.''
Chicago Mathematics & Science Academy Charter School,
Inc.--Chicago Mathematics & Science Academy Charter School involves
issues regarding the Board's jurisdiction, and appears to affect only
charter schools, a small but growing number of employers. In a dispute
between CMSA and the AFL-CIO, the Board will address whether the school
is a ``political subdivision'' and exempt from the Board's
jurisdiction. Alternatively, CMSA seeks to be covered by the Board,
rather than the Illinois Educational Labor Relations Board.
Hopefully, as noted above, the Board will follow past practice and
procedure and not issue any decisions in these cases unless there is
unanimity of the current sitting three Board Members. Indeed, if
precedent is to be overruled in any pending case, the past practice of
requiring three affirmative votes to overrule precedent certainly
should be followed.
Conclusion
In conclusion, Mr. Chairman, I would be happy to take any questions
the Committee might have regarding my testimony.
______
Chairman Kline. Thank you, sir.
I thank all the witnesses for their testimony. And trying
to stay with the light system, I will try to stay with the
light system myself for myself and my colleagues as we go
forward. And I will recognize myself for questions.
I want to pick up, Mr. King, with the specialty ruling,
which is where you completed your testimony. And I have got
several questions written down here. But let us just start to
sort of unravel it here in the 4 and a half minutes that I have
got.
Prior to specialty, what standard did the board use to
determine an appropriate bargaining unit? Prior to specialty
what was the standard?
Mr. King. Mr. Chairman, it was the traditional community of
interest test. There had to be very distinct analysis
undertaken. But it never, ever had an overwhelming community of
interest test.
Chairman Kline. And that is the standard now under
specialty, correct?
Mr. King. That is what the board said.
Chairman Kline. Okay. So, specialty was obviously a single
case. We heard about it was nurses and nurses did not want to
be with janitors or something. But what industries are affected
by this ruling?
Mr. King. Every employer, Mr. Chairman, in the country
except for acute care hospitals, whether it be a restaurant,
whether it be a small hardware store, whether it be a medium
sized factory or whether it be Boeing. Every, every employer in
this country but for acute care is impacted.
Chairman Kline. Until specialty, when did the board use
overwhelming community of interest as a test?
Mr. King. Only in accretion cases. And pardon me for being
just a bit technical, but accretion is a formula or a standard
where a small group of unrepresented employees are folded into
or brought into a larger represented group of employees. That
is when the overwhelming community of interest test was used.
This is a dodge and weave game by the majority. I know
people will say this is not a change, that is flat wrong. Read
the opinion.
Chairman Kline. Mr. Mack, let me--we are going to keep
talking about specialty here and take advantage of your years
of experience. As a regional director, is there any
circumstance under which you would have denied a union petition
bargaining under the standard that is now in specialty health
care? I think you addressed this in your testimony. If that
standard had been in place, would you have denied any union
bargaining units?
Mr. Mack. Under the specialty health care test you could
not turn down any unit. The two employees working in the back
doing the same kind of work, even though there are 50 employees
in the group, you would have to certify those two employees.
Chairman Kline. And so, you could end up with a workplace
with 100 employees. Under that example you would have
theoretically 20, 30 bargaining units?
Mr. Mack. Yes, sir. Absolutely correct, Your Honor.
Chairman Kline. Mr. Martin--pardon me?
Mr. Martin. May I comment?
Chairman Kline. You may.
Mr. Martin. That is just not so. What specialty health care
says is they return to the community of interest. The
overwhelming community of interest that is raised in that case
says that if somebody is left out of the unit and they have an
overwhelming of interest they cannot be excluded.
So, for example, if the certified nurses had said, well we
only want the nurses on the first shift and the second shift,
and you were to exclude them on the third, you said you cannot
do that. But the community of interest test does not provide
that there could be----
Chairman Kline. I am sorry. We are playing with my time. We
have got clearly a difference here among experts. Mr. Mack has
had an awful lot of experience, was a member of the NLRB and is
saying that you could in fact have a circumstance where you
have got bargaining units of two or three or four. And there is
nothing the board could do about not recognizing that.
Mr. Mack. You would be required to do that.
Chairman Kline. And would in fact be required to do that.
So, it is an overwhelming community of interest test and
not the community of interest test. And that is sort of the
heart of this issue.
So, back to you, Mr. King; we are dealing with a number of
rulings here. One of them, in addition to specialty is the June
22nd Notice of Proposed Rule Making, the expedited, the quickie
elections. What is the relationship between those two rulings,
specialty and ambush?
Mr. King. Excellent question, Mr. Chairman. They really fit
together if you look at this big picture.
Under special health care, small units; I just looked back
again at the board decision. At the end of the opinion it says
overwhelming community of interest. We cannot ignore that. But
small, micro units there and on page 10 of my testimony, I show
the chart that shows the correlation between the size of the
voting unit and the union election win rate. This is based on
historical board data going back many years.
The smaller the unit, the much greater the opportunity for
the union to prevail in an election if an election is held.
Couple that, Mr. Chairman, with your question of a very quick
election. So, that two-pronged approach: extremely small units,
very quick elections, much quicker than what we have today. And
the employer is at a disadvantage. But more importantly, like
we heard from a witness today, employees are left out in the
cold. All this goes right by.
So, these two are designed to work together, unfortunately,
to both employers and employees.
Chairman Kline. Thank you. My time is expired.
Mr. Miller?
Mr. Miller. Mr. Martin, for a moment to give you some of my
time to respond.
Mr. Martin. I was just going to point out that what
happened in specialty health care was back in 1974 there were
rules that the board adopted about how acute care hospitals
were supposed to operate. They came up with a set of rules just
for acute care hospitals.
And one of the things that happened in the Park--in the
Park Manor case, which was overturned by specialty health care,
is the Park Manor case sort of blended and discussed those
rules that applied to acute care hospitals and sort of applied
them to nursing homes, which was not the intent of the rules.
It is clear, and court decisions make it absolutely clear that
those rules do not apply to nursing homes.
So, what happened was there was this ongoing debate about
the extent to which you could only have one unit in a nursing
home. The nurses, for example, the CNA nurses could not be in
their own unit; they could not choose to do that. They had to
include in that unit people that did not have a community of
interest with them.
So, what this case, specialty health care simply says is we
are going to return to the traditional community of interest
standard that determines--about 10 factors to determine or not
there is a community of interest so it would be possible, not
required, that the nurses could add--the nursing systems could
have their own unit and not have to--and not be forced by the
government to have other people in the unit other than they
petitioned for. And that is it.
And I--and everybody should read it because this
overwhelming community of interest simply says that when you
are determining the community of interest under the traditional
standard, you cannot keep out people who have an overwhelming
community of interest. And that is the example with the
different shift.
Mr. Miller. Your explanation seems contrary to both Mr.
King's suggested that the goal here was to get smaller and
smaller units. You are suggesting that the overwhelming
community of interest says you cannot keep out.
Mr. Martin. Well, this is speculation to dry criticism of
the board----
Mr. Miller. Mr. Mack suggested this would make the board
unable to reject any unit, any.
Mr. Martin. There is absolutely no legal basis for coming
to that conclusion. In fact, what you will hear from both of
them is them to speculate about what might happen in the
future. And there is not any basis for doing that other than to
attempt to demonize this decision and the board's decision.
Mr. Miller. The title of this hearing is that there is a
culture of union favoritism operating at the board. How would
you respond to that? Are the unions winning all of their cases
in front of the board?
Mr. Martin. No. We have lost--in fact, most of the board's
cases have been unanimous where everybody is agreeing. There
have been a number of cases where the union or the Democrat
representatives on the board have disagreed with one another.
And there have been a number of cases where we have got handed
our heads.
We think that we are entitled to--you know, we have to give
people notice of their Beck rights. And we think we should have
people renew that every year. And our friends on the board said
no, you are not going to get that.
You have had cases where unions have been criticized for
their pre-election conduct, had elections set aside. It simply
is not that way.
Mr. Miller. I guess the--we have been over this road about
four different times. But the suggestion in previous panels has
been that there has been a sort of a traditional operating norm
with the board. And is this radically different? I mean, that
is the suggestion in the title of this hearing.
Mr. Martin. No. I mean, what happens is each time there is
a change in administration, there is a change in the personnel
on the board. And it would be fair to say that the Democrats
are more likely to see it my way and the Republicans are more
likely to see it the other way. But the way that----
Mr. Miller. I assume that is why Congress gets involved and
the Senate holds up people they think are going to rule one way
or another. So, that is very hard----
Mr. Martin. Yes, we have heard that.
Mr. Miller [continuing]. To get to the board.
Mr. Martin. We have heard about that. Of course all this is
supervised by the, as I mentioned before, by the federal courts
of appeals. Any decision of the board that is so out of line or
is playing favorites is appealable to the Circuit Court of
Appeals in the D.C. Circuit and/or the circuit where the
decision comes up. And frankly, there is nothing to indicate
those folks are in the pocket in any way of big labor.
Mr. Miller. The other suggestion here is that on the
election changes, suggested election changes that there is a
hard 14-day rule. I think we went through this committee before
and when we got done with the panels it seemed to me that
people recognized that this was a flexible time that the board
had provided.
Mr. Martin. No. There is no hard rule. It would be nice if
it would happen in 2 or 3 weeks instead of a month and a half,
which is what it generally takes now. And you know, frankly I
think people are capable----
Mr. Miller. But there is nothing in that----
Mr. Martin. No.
Mr. Miller [continuing]. In the board that says this is a
14-day----
Mr. Martin. Not 14 days.
Mr. Miller. Thank you.
Chairman Kline. Dr. Desjarlais, you are recognized.
Mr. DesJarlais. Thank you, Mr. Chairman.
I was just thinking about the ranking member's responses--
we opened the hearing or his statement saying that this was a
partisan hearing and that we had more important things that we
should be doing. But I am sure my good friends and colleagues
from South Carolina, Mr. Gowdy and Mr. Wilson will probably
have a lot to say about what has happened with the Boeing
situation and whether that is an impediment to job growth.
I am thinking about the president's American Jobs Act that
was proposed to a joint session about 2 weeks ago and has yet
to be given a title or a number, even by the Democratic side of
the aisle, and then brought up in the House for any kind of
vote.
So, clearly this hearing is important because job
creation----
Mr. Miller. Get a vote on that.
Mr. DesJarlais [continuing]. Is----
Mr. Miller. Are you offering us a vote?
Mr. DesJarlais [continuing]. Is bipartisan.
So, what I guess I would ask Mr. Martin, do you feel like
the federal government over-regulates businesses?
Mr. Martin. No, I do not. And in fact, you know the
interesting thing about the collective bargaining process is
that it is ultimately voluntary. There is no requirement that
anybody enter into a collective bargaining agreement. And a
collective bargaining agreement always ends up a voluntary
agreement between the parties.
As I mentioned to you that one of the things that we are
doing day in and day out, especially since the collapse, is
working closely with employers on----
Mr. DesJarlais. Did you talk to employers? Have you been
out in the workforce? Have you been to industries, businesses,
manufacturing and ask them what is standing in the way of job
creation?
Mr. Martin. Do it every day.
Mr. DesJarlais. Okay. And none of them are telling you that
they need to get government out of the way, that they are over-
regulated? They are all saying, you know, the government is
doing a good job and we need more posters in our break room.
Mr. Martin. It depends what party they belong to.
Mr. DesJarlais. Okay. Well, I do not know that that is the
case because I talk to people from both parties in Tennessee's
4th district. I have talked to 30 plus businesses. And I have
talked to people who are staunch Democrats, and they feel that
the government is standing in the way of job creation.
But I like the fact that you mentioned the word voluntary
because, Mr. Mack, you made a comment in your written testimony
that--in regards to the National Labor Relation Act. You said
that gives workers two rights: the right to support and form
unions, and the right to refrain from such activities.
Your point was that nothing gives government the right to
give one right more value than the other. Can you briefly
highlight a few of these inconsistencies?
Mr. Mack. Yes. And I think that is so important when we are
talking about the statute. It says employees have the right to
join or the right to refrain from joining. And when we look at
what the board is doing right now, it is eliminating or making
smaller and smaller the refrain part.
Let us take for an example the successor bar case. In that
case, the board says well, if you are a successor and you
acquire a company, if you go ahead and assume the contract or
agree to certain principles, we will allow you to file a
petition in 6 months to get rid of the union or for the
employees to vote. If you do not accept a portion of the
existing collective bargaining agreement, the employees know
the employer can file a petition for 1 year down the road.
Second, when you talk about this requiring employers to
post this notice, which really does not explain the employee
rights, the focus of that notice is employees essentially have
to join the union to get through here.
Mr. DesJarlais. And you have see the poster?
And Mr. Martin, you have seen the poster?
Mr. Martin. Yes. I have got it right here, and that is not
what it says.
Mr. DesJarlais. Well, how much of the text is dedicated to
telling the employees that they do not have to unionize, versus
how much is dedicated to telling them that they can? Just
percentage-wise.
Mr. Martin. The entire poster addresses a whole range of
things.
Mr. DesJarlais. So, there are about three sentences that
say that they do not have to. And about the majority--it is
fairly slanted, right?
Mr. Martin. It is what?
Mr. DesJarlais. It is fairly slanted. I mean, it gives
about three sentences saying they do not have to.
But I guess let us get back to the voluntary point. We have
introduced--or I have introduced the bill H.R. 2854, the
Employer Free Choice Act and used the word voluntary. And that
is exactly what I used in this bill. It gives the employer the
right to voluntarily hang the poster or not. Does that sound
fair?
Mr. Martin. No. I think that--I think that if you are going
to notify people what the law is----
Mr. DesJarlais. So, it is fair----
Mr. Martin. I think this should----
Mr. DesJarlais. [Off mike.]
Mr. Martin [continuing]. Because I think there is a law
against discrimination there ought to be a poster on it. If you
are entitled to worker's comp there ought to be a poster on it.
If you are entitled to unemployment you ought to be a poster on
it. And if you are entitled to organize a union there ought to
be a poster.
Mr. DesJarlais. And it ought to be slanted highly to one
side.
Mr. Martin. It is not slanted at all.
Mr. DesJarlais. Oh, okay.
Mr. Martin. It takes from the statute. In fact, it adds
things that are not included in the statute to advise people
that the union has the duty of fair representation.
Mr. DesJarlais. Well, I am about out of time, so I have to
yield back. But maybe somebody can answer that in further
testimony.
I yield back, Mr. Chairman.
Chairman Kline. Gentleman yields back.
Mr. Andrews, you are recognized.
Mr. Andrews. Thank you, Mr. Chairman. I would like to yield
to our ranking member.
Mr. Miller. I just noted in the notice provision the first
six things are the things that employees get fired for every
day of the year, and it is illegal to fire them for those
reasons. The next one says you can choose not to do any of
these activities, including joining and remaining a member of
the union. You can leave. You do not have to join.
But the first two things, if you go up to an employer and
say that you would like to form a union you can get fired. And
they get fired every day for that. That is why it is posted
that way so people understand. They do not get to fire you for
exercising your rights that they have given to you under the
law.
Thank you.
Mr. Andrews. There are 15 million unemployed Americans.
Fifteen days ago the president of the United States came to the
Congress, made a proposal to create jobs. We have not had a
hearing. There has been a bill introduced by Mr. Larson. No
hearing, no vote. We are arguing about what a poster says is
going to be put up in people's workplaces.
But let me ask Mr. King a couple questions. The premise of
this hearing is that the NLRB is kind of running amuck, and is
terribly biased against employers and in favor of unions. And
you have highlighted the specialty health care case as one of
the pieces of evidence in favor of that proposition.
And when they were considering specialty health care, you
and others filed an amicus brief that clearly made it--you did
not want the board to address the issue at all because you felt
it was outside the scope of the case, if I understand it
correctly. But then you said, if the board--if despite your
objections if the board does address those questions, you urge
the board to refrain from abandoning the community of interest
test that has guided employers and labor organizations for
decades.
The decision, I am reading the conclusion of the decision
that the board in fact reached, says that ``we hold that the
traditional community of interest test to which we adhere will
apply.'' So, did not the board do what you asked them to do?
Mr. King. It did on one hand, Mr. Andrews. But if you go to
the end of the decision, and I am quoting, ``the board will
find that the petition for a unit to be an appropriate unit
despite a contention that employees in the unit could be placed
in a larger unit, which would also be appropriate or even more
appropriate----
Mr. Andrews. Well----
Mr. King [continuing]. ``Unless the parties so contending
demonstrates that employees in a larger unit share an
overwhelming community of interest----
Mr. Andrews. That is so----
Mr. King [continuing]. ``With those in petition for a
unit.''
Mr. Andrews. You think that what distinguishes your request
from what the board decided is the importation of this
overwhelming interest test. Is that right?
Mr. King. Yes, Mr. Andrews.
Mr. Andrews. I want to read from you a case from 2008
before the United States Court of Appeals for the D.C. Circuit
that is called the Blue Man Vegas case. I think it is cool just
to say Blue Man Vegas, by the way, for those of you music fans.
And I want to read from the majority opinion in that case.
``A unit is truly inappropriate if, for example, there is no
legitimate basis upon which to exclude certain employees from
it.'' The case goes on to say, ``If, however, the excluded
employees share an overwhelming community of interest with the
included employees, then there is no legitimate basis upon
which to exclude them from the bargaining unit.
This case is from 2008. It addresses the question of the
scope of the bargaining unit. It was written by the noted left
wing judge, Judge Ginsburg, who was nominated by Ronald Regan
for the United States Supreme Court. The nomination kind of
went up in smoke as I recall.
But why is Judge Ginsburg wrong? Why is he wrong?
Mr. King. Judge Ginsburg is an excellent jurist, agreed.
But what you really have to do is get into the footnotes. Mr.
Andrews, as one of my law professors used to say, unless you
read the footnotes, the same law school you went to----
Mr. Andrews. The Cornell law students always read the
footnotes. I have read them too. What are you----
Mr. King. Well, unless you read the footnotes your children
will starve. That was the message. You have to dig into the
decision.
Mr. Andrews. Right.
Mr. King. The D.C. Circuit relies upon Trident Foods, and I
have read the decision, but also Jewish Hospital Cincinnati.
Well, the Trident Sea Foods case was a successorship case; does
not have anything to do with overwhelming community of
interest. The community of interest test, traditional test, was
in fact applied there.
Mr. Andrews. Well----
Mr. King. And Jewish Hospital----
Mr. Andrews. The thing, if I may because my time is running
short, I read you the language from Judge Ginsburg. Now, you
may disagree with his statement in that case, but a
disagreement among two experts is not the same thing as some
radical decision where someone has run amuck.
So, the board adopted a standard that in 2008 Judge
Ginsburg said was the definition of traditional community of
interest test. I think they did what you asked them to. And if
the board did what you asked them to, how is that an example,
an example of a pro-union bias at the NLRB?
Mr. King. We disagree. The board did not do what we asked
it to do, just the opposite. And to the extent that Blue Man
Group is being cited, it is being cited incorrectly.
Mr. Andrews. Again, I just like saying Blue Man Group. But
they did say traditional community of interest test is what
they adopted. You may disagree with their interpretation, but
it hardly sounds radical to me.
Chairman Kline. The man's opportunity to keep saying it has
expired. Thankfully.
Mr. Gowdy, you are recognized.
Mr. Gowdy. Thank you, Mr. Chairman.
The NLRB is allegedly a neutral arbiter dedicated to an
even-handed administration of the NLRA. And Mr. Chairman,
unfortunately I have to use the word allegedly because it
appears at least recently they have become acolytes, shills, if
you will, for organized labor. And Boeing may be the most
public example, but it is by no means the only example.
You have a re-definition of bargaining units. You have
bannering cases. And now you have posters. And the NLRB wants
us to believe it is so people can understand the full panoply
of their rights. In fact, they have the unmitigated temerity to
suggest that it is only so people will understand their rights.
So, Mr. Martin, let me ask you this. Do you believe
employees have a constitutional right to travel?
Mr. Martin. I think they do.
Mr. Gowdy. Where is that in the poster? How about the right
to bear arms? How about the right to counsel if they are
charged with a criminal offense?
Mr. Martin. Well, those matters----
Mr. Gowdy. How about the right to----
Mr. Martin. [Off mike.]
Mr. Gowdy [continuing]. To punish----
Mr. Martin [continuing]. Poster in this case that the board
is addressing is directly related to how employees are to be
treated in the workplace.
Mr. Gowdy. What is their statutory authority----
Mr. Martin. [Off mike.]
Mr. Gowdy [continuing]. For mandating posters?
Mr. Martin. It is consistent with the other posters that
are posted in the----
Mr. Gowdy. I am going to ask you again.
Mr. Martin. [Off mike.]
Mr. Gowdy. What is the statutory authority for mandating
those posters?
Mr. Martin. The----
Mr. Gowdy. Cite me with the statutory authority.
Mr. Martin. One of the things that the board is charged
with is advising employees of their rights. This is one way to
do it.
And I would also say to you, Congressman, we get calls----
Mr. Gowdy. I am listening for a cite, Mr. Martin. I am
listening for a statutory cite to support the authority of the
NLRB to mandate posters.
Mr. Martin. It is--the board is charged with responsibility
for administering the act, and that is within their sound
discretion.
Mr. King. If I may, Mr. Congressman, there is no
statutory----
Mr. Gowdy. Well, I--see you answered it in a couple
seconds, and I knew that that was the answer.
Mr. King, it strikes me that this has nothing to do with an
administration of rights. I want to read to you a quote by
someone by the name of Stewart Acuff who is with the Utility
Workers Union of America. ``If we are not able to pass the
Employee Free Choice Act, we will work with President Obama,
Vice President Biden and their appointees to the National Labor
Relations Board to change the rules governing forming of a
union through administrative action.''
And it just strikes most reasonable people that what they
cannot do through the ballot box, and what they, heavens knows
cannot get through Congress, even with a Democrat controlled
House, Senate and White House, they are now seeking to do
through administrative rule. That is just the way it looks. Am
I looking at it wrong?
Mr. King. That is the way it has looked for a period of
time. The return on investment for the substantial
contributions made to the other party did not result in
legislative relief. So, the relief is now from organized
labor's perspective through the regulatory community.
The United States Department of Labor is even perhaps more
of an activist group than the National Relations Board. We are
now being told that perhaps the so-called persuader area, we
cannot even advise a client on attorney-client matter without
having to disclose same. It is a full, regulatory full-court
press.
Mr. Martin. Those are talking points. Those are not the
board's decisions.
Mr. Gowdy. Mr. Martin, twice now you have attempted to
assuage our fears of an activist NLRB by citing that we can
always go to the federal courts of appeals to correct their
errors. That analysis would not work very well with the issue
of say prosecutorial misconduct, would it?
I mean you would not advocate--let us just excuse
prosecutorial misconduct because we have a court of appeals
that can fix it, or jury tampering because we have a court of
appeals that can fix it. Or discovery abuse because we have a
court of appeals that can fix it. Did I understand you wrong
when you said----
Mr. Martin. No. I would suggest----
Mr. Gowdy [continuing]. We have a court of appeals----
Mr. Martin. I would suggest--what I would say was to the
extent that there is a complaint, that you make this sweeping
complaint that the board is acting as--is in the pocket of
organized labor, you would have to test that. You could test
that----
Mr. Gowdy. Can you name one reason----
Mr. Martin [continuing]. Court of appeals. And I think what
you would find when you get there is you will get told the same
thing I get told when I go up there and complain about
something----
Mr. Gowdy. I have got just a little bit of time, Mr.
Martin. Can you name me a reason not to join a union.
Mr. Martin. It will be up to you.
Mr. Gowdy. No. Can you name me a reason? I mean 94 percent
of the American people choose not to. Can you name me a reason
not to join a union?
Mr. Martin. I am not going to bother with that.
Mr. Gowdy. You cannot name a single reason not to join a
union.
Mr. Martin. I would think in almost every case employees
would be better off represented and working together regarding
their wages, hours and working conditions.
Mr. Gowdy. So, the answer is no.
Mr. Martin. I think that that would be the best way to----
Mr. Gowdy. You cannot name a single reason----
Mr. Martin. Just like I--just like I would not want to
represent myself in court. I think it would be--you know
workers are better off represented by a union.
Chairman Kline. The gentleman's time has expired.
Mr. Tierney? Mr. Holt?
Mr. Holt. Thank you, Mr. Chairman.
Just to pursue this latest point a little bit more, Mr.
Martin, you know the--let me read from, well it is Section 156
here of the annotated law here. ``The board shall have
authority from time-to-time to make, remand and rescind in a
matter subscribed by subchapter 2 such rules and regulations as
may be necessary to carryout the provisions of the
subchapter.''
So, it is true that, for example, on wages and hours there
is not statutory language that says you must post notices. But
there are regulations going back many decades to say that your
wages and hours, regulations--the regulation says that wages
and hours notice must be posted. Is this different?
Mr. Martin. No, it is not. No, it is not. It is within the
same agency authority.
Mr. Holt. Okay.
Ms. Ivey, I certainly want you to have your rights. I mean,
that is kind of what this whole thing is about, what are
workers' rights? You state that the NLRB Gasket--Lamons Gasket
decision took away your rights to a secret ballot. Do you not
have a right to file a decertification petition at some point?
Ms. Ivey. I understand there may be an opportunity, maybe
in a year. There may be up to 4 years if there cannot be a
bargaining agreement. That could happen, but I do not see a
real----
Mr. Holt. Well, not could. It must. I mean, you have got
that right as I understand it.
Mr. Martin, is not that correct?
Mr. Martin. Yes. And I would also say, you know one of the
things Ms. Ivey has suggested is that there were
misrepresentations made when the employees signed the cards.
And frankly, if that is the case, if the SEIU, and I represent
the SEIU, but if they made affirmative misrepresentations and
tricked people into signing those cards, you can file an unfair
labor practice charge and get the recognition set aside.
So, you know there is still a way to proceed. I mean, you
have the ample counsel here who could probably, you know, help
you out at the end of the hearing. But, as a practical matter
if that were the case you would have a remedy in that case,
which the board would----
Mr. Holt. Thank you.
I am sure we could find people who could help you----
Ms. Ivey. Right----
Mr. Holt [continuing]. File that unfair labor practices----
Ms. Ivey. And I appreciate all that, and I know there are--
down the road----
Mr. Holt [continuing]. If that is necessary.
Ms. Ivey [continuing]. There may be. But I tried to go
farther than----
Mr. Holt. Let me change the subject in my limited time
here. Of course the whole issue is whether there is union
favoritism. That is the title of today's thing. And several
people have said that the specialty health care community of
interest statement is radical and it needs to be addressed
legislatively.
I would actually be quite concerned if we were asked to
define you know whether physical therapists were in a community
of interest with advanced practice nurses or something. I do
not think that is the sort of thing that we should be
legislating.
So, let me ask Mr. King, you were one of the people who
mentioned this. I mean, what specifically would you ask us to
do legislatively that we could do better than the NLRB could do
in determining what is an acceptable community of interest?
I must say, I side with Mr. Andrews in saying that the
board in this--in specialty health care did not do anything
radical. They did something that Ginsburg and others had laid
out as a pretty standard way of defining a community of
interest.
Mr. King. Mr. Holt, we certainly will agree to disagree, as
I did with Mr. Andrews. But your specific question, I would ask
that this committee, the Congress consider amending the Act to
put in sufficiently distinct language in the statute to codify
what the case law has been over the years, including Blue Man
Group because the case is cited Blue Man Group do use
sufficiently distinct. So, that is one suggestion.
Mr. Holt. Surely you do not want us to have a list of
thousands of categories that we will define these are
communities of interest?
Mr. King. No, absolutely not, Mr. Holt. I think it is
unfortunate in one regard that the committee has to spend the
time to look at a federal agency like we are doing today. But
unfortunately events have required that, at least from my
perspective.
The second answer to your question is I would also have the
Congress codify no proliferation. I was involved back in 1974
when I was working on the Senate side as a counsel in the
health care amendments. We attempted to get into the statute at
that time a no proliferation standard for health care.
Unfortunately, the votes were not there to do that. We came
close. We got very good committee language from both the House
and the Senate. And there was bipartisan support for that no
proliferation committee language. But it did not get into the
statute. And I would suggest, to be specific in response to
your question, the no proliferation language also be put in the
statute.
Finally, I absolutely agree with you that the Congress
should not try to legislate whether cooks, whether housekeepers
or others constituted an appropriate unit. That is for the
expertise of whatever agency will continue to adjudicate those
matters. You are correct in that.
But, the statute does need to be reexamined.
Chairman Kline. The gentleman's time----
Mr. Holt. But this is a hearing on union favoritism. It
seems to me you are proposing something that is quite the
opposite of that.
Mr. King. I was just responding to your question.
Chairman Kline. The gentleman's time has expired.
Dr. Bucshon?
Mr. Bucshon. Thank you, Mr. Chairman.
I just want to agree with some other comments that the
administration could not push through card check and other
anti-worker legislation through the 111th Congress. And now
they are trying to institute these policies through the NLRB
and other agencies.
And with that, I would like to yield the balance of my time
to Mr. Wilson from South Carolina.
Mr. Wilson. Thank you very much. [Laughter.] [Off mike.]
Both parties, we work to improve this. In fact, I started
as a--back in 1973. In 1975 I was moved into the State
Development Board, in South Carolina as a member of the state
Senate--the BMW.
We are very proud that every X5, X6, Z3, Z4 in the world is
made in South Carolina. And there has been no downturn, even as
the American automobile industry had crisis.
We have seen thousands of jobs created. And in Congress I
work every day, and as I did in the state Senate to recruit
industry. I worked with the Crane Corporation to double on jobs
in a small, rural community in Williston, South Carolina,
creating jobs for people.
But then in April we--I have worked on this, again, all my
life. But it never occurred to me that the NLRB would come in
and attack Boeing. It is--I was there for the groundbreaking.
The building is built, 1.1 million square feet. Eleven hundred
people are employed today.
There has been no loss thanks to the inquiry by Congressman
Gowdy, been no loss of jobs in Washington State. But still,
they are proceeding, the NLRB, to put at risk 1,100 families in
our state, and in fact suppliers all over the state, including
the district I represent.
Sadly, the message is really clear. Do not locate in a
union state because if you locate in a union state, you cannot
leave. In fact, you must locate in a right to work state. That
is the unintended overreach of NLRB, and it is really the roach
motel. If you locate in a union state, you cannot leave.
And so, with that in mind, Ms. Ivey, thank you for your
courage to be here today. As someone who works every day to
make a living, do you feel the NLRB is looking out for the best
interest of America's workers?
Ms. Ivey. Not at this time from what I have observed.
Mr. Wilson. And you gave excellent testimony factually on
how it affected you and the people that you work with.
Additionally, Ms. Ivey, do you have any concerns about your
employer providing your phone number and email address to the
union?
Ms. Ivey. I was not aware if that happened or did not
happen. I know during the petition both sides did. So, I feel
as long as if we are going to be offered an opportunity to the
union I would imagine both sides would be able to do it. Either
both sides or no sides.
Mr. King. If I may congressman under the proposed election
rules of the board it appears that personal email addresses,
personal phone number information would be required. Now, the
board has not been clear on that, but that has been suggested.
Mr. Wilson. And Mr. King, back again. In regard--has this
occurred before, where a plant is built, people employed and
the NLRB comes in and announces that it cannot operate?
Mr. King. Not to my knowledge under these facts. You are
absolutely correct. It is my understanding no jobs were lost in
Puget Sound area. No jobs were transferred to South Carolina.
The parties bargained. Boeing sat down and tried to bargain
with the union here. There was no movement of equipment.
There was--it is not a runaway shop. I have seen that
mentioned. That is not the situation at all; Boeing, for good,
legitimate, non-discriminatory reasons, as I understand the
facts, simply decided to have an alternative site to build
aerospace equipment.
Mr. Martin. There are cases where the board has ordered
factories to return where they were moved illegally.
Mr. Wilson. And I would like to point out that in the--as
we were reaching efforts to recruit them, it is a second line
to build 787s. That was always the understanding. Not a
diversion. Thank you very much.
Chairman Kline. The gentleman's time has expired.
Mr. Kildee, you are recognized.
Mr. Kildee. Thank you, Mr. Chairman.
I was 7 years old when the Sit-Down Strike took place in
Flint, Michigan, which is part of our history here. Foster Rhea
Dulles, brother John Foster Dulles calls that strike in Flint,
Michigan the Lexington of the organization of the CIO. And I
can recall when the strike began, and I can recall when the
strike ended in February 11, 1937.
And it is interesting. They reached a contract. And that is
the contract, one-page contract. And they recognized all the
members of the union, guaranteed they would not be in any way
punished; gave a delineation of some of their rights to
bargain. And it was a very historic thing.
But it was done on one sheet of paper, signed by some
famous names in history, William Knudson who was the president
of General Motors, who my dad knew very well; and John L.
Lewis, the president of the CIO, who my dad knew very well.
As a matter of fact, I am grateful for two groups in Flint,
Michigan for my life. I am grateful to General Motors for
having supplied the capital to enable them to produce the
millions of cars which they produced. And I am grateful to the
UAW. I just talked to one of the president of the old Buick
local this morning driving into work.
I am grateful because they re-secured justice for us. But
it was a one-page. It was very, very important. And as they
say, it is the Lexington of the organization of the CIO.
Unions really help build a middle class in this society. My
dad could never have gotten to send me to college were it not
for the UAW. No.
I am grateful also to General Motors for having the wisdom
to build great cars and build those plants in Flint, Michigan.
But, what I have seen recently, I have been in Congress now 36
years. And the power of unions in general have lessened in
those years. And the purchasing power of the working people
have lessened in that year.
How else some modest changes by the NLRB now want more
workers to organize in an expeditious and efficient manner so
we can give that rightful power to the unions to bargain and
let them again increase their purchasing power and get this
economy going. What changes by the NLRB would help expedite
that?
Mr. Martin. Well, I think, I mean it is a tragedy that one
of the efforts that has helped drive the middle class over the
years is now being demonized, and that is organized labor and
the labor board. But I will say that you know, a reasonable--
the board's rules that they have proposed regarding elections
streamlines that process. And it moves the litigation to the
back of the process.
You know, one of the things that happens is, is under the
board's current election procedures there is the opportunity to
litigate before the election, which delays the election. And
there is the opportunity to litigate after the election.
If the litigation takes place after the election, it simply
moves the process along in a more orderly and less expensive
fashion. And if the union loses, the whole thing is mute and
there is no need to litigate it anyway. So, it has certain
practical aspects. And so I think that that would be a
positive.
Mr. King. If I may, Congressman, I do want to make sure, at
least from my perspective I am clear. I am not here to suggest,
nor would any responsible employer I think be here to suggest
that we ought to do away with collective bargaining. That is a
fabric built into this nation, and how workers and employers
come together. And where appropriate, collective bargaining has
worked quite well.
There are problems with the current board, but certainly
collective bargaining is something that we ought to hold near
and dear to the hearts of all of us in this country. The
question is, how do we regulate the workplace as we go forward?
Mr. Mack. And I agree with Mr. King on that.
Chairman Kline. The gentleman's time has expired.
Mr. Hanna, you are recognized.
Mr. Hanna. Thank you, Chairman.
Mr. Martin, I personally have been in a union for many
years; 25 actually. And I take exception, great exception to
what your implications that there is anyone here on either side
of the aisle that in any way denigrates or undervalues the
value of unions over time, particularly as a union member. I
have not heard that in any way.
Mr. Martin. Well, maybe I misunderstood some of the----
Mr. Hanna. Well, what I do think, though is that there is
an effort on our part to create a fair and balanced approach to
the regulations, and that unions in many ways over time are now
begun to try to do through legislation and regulation what on a
marginal way they failed to be able to do through the power of
their argument.
With that, I would like to yield the balance of my time to
Mr. Gowdy.
Mr. Martin. Well, if I may, you know--but that is--you know
what, I would argue that that is not actually reflected by the
decisions. Again, the decisions are a return to traditional
approaches that were used by both Republicans and Democrats.
Mr. Hanna. Well, I would suggest to you there is nothing
more traditional than a secret ballot.
Mr. Martin. The voluntary recognition has always been an
option to the parties. If the union has to demonstrate a
majority, freely made, and it is an option available to the
employer to agree. Then that is sanctioned by the Supreme
Court.
Mr. Gowdy. I thank Mr. Hanna.
Mr. Mack?
Mr. Mack. Yes, sir?
Mr. Gowdy. The NLRB poster states that under the National
Labor Relations Act it is illegal for your employer to prohibit
you from wearing union hats, buttons, tee shirts and pins in
the workplace, except under special circumstances. The posters
I have seen do not define special circumstances. Can you help
us understand what that very vague language might mean?
Mr. Mack. And that is one of the problems with the notice
posting because there are circumstances, locations, the acute
health care area, area on store floors where folks are selling
goods employees cannot be soliciting, distributing literature
for the union. This poster is so vague that employees have no
idea what their rights and responsibilities are. And that is
going to lead to an awful lot of disciplinary action and
matters before the NLRB.
Mr. Gowdy. Or it may just lead to wallpaper. We may just
have another poster that explains what the special
circumstances are and then another poster after that. And
pretty soon it is just union wallpaper.
Mr. King. If I may, Congressman, and you certainly touched
upon the language of the poster. But my answer to the question
a few moments ago is, is this statutorily authorized? I think
that is questionable. But the real issue is, if you do not put
the poster up----
Mr. Gowdy. [Off mike.]
Mr. King [continuing]. The employer--well, that is one
issue. The employer is a, guilty of an unfair labor practice
charge; b, the statute of limitations is tolled, or may be
according to what the board says; and third, the employer is
somehow deemed to be anti-union and have union animus. That is
where I think we really get into some statutory issues.
I understand the broad baseline in the statute. We all do
them, regulations issuing there under. But you have to really
drill into this. So, not only do you have an issue of whether
the poster language is balanced, and I think we could go back
and forth on that for a long period of time. And by the way,
this whole poster and these regulations come at a time when the
president keeps saying we should have less regulation in
workplace.
Mr. Gowdy. Right. It is----
Mr. Martin. I would say--it is ironic in that way.
Mr. Gowdy. Hang on, Mr. Martin. I will come to you. I want
to ask Mr. King another question.
Cass Sunstein, who is the regulatory czar wrote a piece
analyzing Justice Alito's dissents in an effort to determine
whether Justice Alito had any bias or not before he went on the
Supreme Court. Have you had an occasion to analyze NLRB member
Hayes' dissents to see whether or not they have increased in
frequency or what can be learned? Are these all unanimous
decisions? Or have we had some notable dissents?
Mr. King. First, Congressman, we have had no major decision
issued from this NLRB with unanimity. I read Mr. Martin's
paper. I think it is very well done. I commend him for putting
the paper together as he did. But it glosses over what has
actually happened at the board.
Not one major decision has issued with unanimity. In fact,
I looked at this last night with the help of my associates. Mr.
Hayes, Member Hayes has dissented in 59 cases. I have read
every one--excuse me. I have not read every one of those
dissents. I read most of the dissents, and they are quite well
written, I believe. But they are quite, quite biting, and they
are quite critical frankly to the majority.
We do not have any unanimity on this board, unfortunately,
not close to it. And there has not been any type of bipartisan
approach there like other boards, Democrats and Republican,
unfortunately, to move forward.
Mr. Gowdy. There is a lot of five-person board----
Mr. Martin. Most decisions have been unanimous.
Mr. Gowdy How many vacancies are there, Mr. King? That will
be my last question. Is a five-person board?
Mr. King. Yes, sir.
Mr. Gowdy. How many vacancies are there?
Mr. King. There are now one, two; two vacancies.
Mr. Gowdy. And how many recess appointees?
Mr. King. One.
Mr. Gowdy. Thank you.
Chairman Kline. The gentleman's time is expired.
Ms. Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
I am really getting antsy sitting here talking about a
poster and hearing from three over one witnesses that clearly,
clearly do not agree that organized labor and unions deserve
any kind of protection when we have a 9 percent unemployment
rate in the United States of America. And we should be talking
about jobs that our ranking member sent a letter, I know, to
the committee asking that we have hearings on jobs.
Right here, this is what this panel should be doing; not
talking about--regurgitating every reason why people do not
want labor unions to be strong. And when are we going to have
this jobs hearing? That is my question. So, let us do it. Let
us not just pretend like this committee does not have--the
Education and Labor Committee--Workforce--Labor, no Workforce;
you took Labor out of there--Committee does not have
jurisdiction over part of the jobs bill. We need to have that
hearing sooner rather than later.
So, my question now is to Mr. Martin. First of all, if we
had a poster that listed everything that is not covered through
the NLRB it would probably be wallpaper, right?
Mr. Martin. I agree with Mr. Gowdy on that.
Ms. Woolsey. Yes. We do not do that. We do not list
everything that is not, we list what is protected.
Mr. Martin. And I would also point out, if I may,
Congresswoman, the board has said if people overlook, you know
if they just overlook the fact that they should have posted and
do not post it. The board is basically going to give them a
Mulligan on that and say put it up and it is good to go. So,
anyway.
Ms. Woolsey. Yes. Well, so how many--let us go to the
reality of the whole thing. Since somebody pointed out that
over 90 percent of employers are not covered by labor unions,
how many of those 90 percent of those employers actually have
new employee orientations and employee handbooks that say you
have a right to unionize?
Mr. Martin. I have not seen one.
Ms. Woolsey. I have not seen one. No.
Mr. Martin. I have not seen one.
Ms. Woolsey. I mean, that is where that would be to make it
balanced. Hello, employees. We are a non-union facility, but
you have every right to unionize.
So, now if an employee goes to the shop floor, if there are
any shops anymore in this country, and wears a tee shirt that
says, I am pro-union or if--or a button or a hat, is that
protectable?
Mr. Martin. That is protected. If the employer is not aware
that that is protected they might discipline them for it.
Ms. Woolsey. Well, I mean can they legally discipline for
it?
Mr. Martin. No.
Ms. Woolsey. No. All right. But just what is the risk, that
you know of, for----
Mr. Martin. I will tell you, as a practical matter we
routinely get calls from employees in non-union workplaces who
complain to their employer about--you know, about overtime,
about not being allowed to share in profit sharing and get
disciplined for that. The file a charge, the HR person is duly
embarrassed. They get a lawyer. They fix it.
It is--you know the--most employers do not discriminate,
but we still put posters up notifying people not to
discriminate. Most employers have good, safe workplaces. They
still have to notify people about.
Ms. Woolsey. Yes. So, since employers have unfettered
access to their employees at all times during the workday, and
they can express their views because they are the employer, how
much do these rules change that?
Mr. Martin. I think it just simply--I do not think it
changes the balance at all. The employer is still the dominant
operator in the workplace. The employees serve at their will
and--and can be compelled to listen to their viewpoints.
Ms. Woolsey. So, these proposed election rules do or do not
take away the employer's voice.
Mr. Martin. Of course they do not.
Ms. Woolsey. And where does the employee's voice come in?
Mr. Martin. Well, the employee's voice is limited. They--
the employees may talk amongst themselves on break time----
Ms. Woolsey. Whispering.
Mr. Martin. Whisper. And the union can try and contact them
at home. But they certainly--you know when the employer calls a
captive audience meeting where everybody is required to appear
under penalty of discipline, the union does not have a voice in
that. And the employees, frankly, in most cases know better
than to make a noise in that that is not acceptable to the
employer.
Ms. Woolsey. Not very American.
Chairman Kline. The gentlelady's time has expired.
Dr. Roe?
Mr. Roe. Thank you, Chairman, for yielding. And I will
agree with people on both sides of the aisle. With 14 million
people out of work, jobs are the most important issue that we
have in this country today, hands down. No doubt about it.
I have sat here and listened now for going on 2 hours, and
I do not think that any of this encourages me as an employer to
hire anybody. When I sit and listen to all of this, this does
not encourage me to go out. And what will encourage me to
create a job is a demand for the goods or services that I
produce.
As a physician, if I am going to work on Monday and I have
got an empty schedule on Friday, I am not going to hire
anybody. It is that simple. If I am booked up for 4 months and
I--then I am going to hire a new doctor to help me get that
backload of patients taken care of. It is no more complicated
than that.
All of this discussion right here would discourage me as an
employer from hiring anybody. It is complicated enough. And Mr.
Martin clearly pointed out that our bulletin board at home, you
cannot even read it there are so many thumbtacks in there with
I think irrelevant things there.
I want to ask Mr. King, why do you think that private union
membership is dropping in this country? Why is that?
Mr. King. Foreign competition; jobs going overseas. We look
at the Boeing situation, that is one of the few employers in
this country that exports goods. But that is not the case in
many other industries.
We have over-regulation. Per your point, these new election
rules, Dr. Roe, I just looked at the stats here. These new
proposed expedited election rules, they modify over 100
sections and subsections of the current board regulations,
include changes that span over 35, three-column pages of the
federal register.
What small employer is going to be able to figure that out?
And there are many other issues why the union membership in
this country has dropped. We do not have time to go into them.
But it is unfortunate for the whole economy that we have to
have this absolute back and forth sparring. We need to have a
federal agency that is fair and unbiased so businesses can do
what they do best, create jobs and move this country forward.
Mr. Roe. Well in that day National Labor Relations Act 1935
and it was passed, and it was passed for a good reason. I grew
up in a union household. My father lost his job overseas in
1974 when I was in the military.
And I think, Mr. Mack, I want to ask, you have a tremendous
amount of expertise in the NLRB. And with your experience
there, what is your opinion of the board's Boeing decision? I
mean, I have looked at that, and I have driven to Charleston,
South Carolina for a reason. I do not live--6-hour drive from
there. I wanted to see that building.
They have built a huge building there with 1,100 people
with good jobs. And the NLRB is saying, drop that capital
investment, take it back to Washington where no one has lost
their job. What kind of a ruling?
Nobody with any common sense can understand that at all. I
mean, I try to explain it to people and I cannot. I would just
like to hear your opinion.
Mr. Mack. Thanks, Congressman.
Being a lawyer, I have not studied the Boeing case. We do
not represent Boeing in this particular case. But I can share
with you, it is going to be a--NLRB has before it a lot of
remedies and a lot of approaches. It can deal with this issue
without requiring Boeing to move its operation back to Seattle.
It would seem to me that asking a company to shutdown a
multimillion or billion dollar facility and taking 1,100, 1,200
employees out of employment, that would be something that the
board would come at with great reservation, and should not go
after that lightly. There are a lot of other ways that the
NLRB, assuming--and I do not know that there has been a
violation. But assuming for the moment that there has been a
violation, there are a lot of other remedies or weapons at the
disposal of the NLRB rather than close shop and go back to
Boeing. That is an awful decision.
Mr. Roe. I agree with you 100 percent. Let me make this----
Mr. Martin. Can I comment on the Boeing----
Mr. Roe. No. I want to make one statement because my time
is almost up.
I left this country in 1973, put on a uniform and served in
a foreign country in U.S.--Second United States Infantry
Division, as many people have done here. That is done so that
we will have a secret ballot and a right to a secret ballot.
I was elected by a secret ballot. The president of the
United States was elected by a secret ballot. The union
leadership is elected by a secret ballot. Every employee--we
have 200 years of history in this country.
I think it is the most important thing we have so that you
cannot intimidate anybody, either the employer or the employee,
which is what I thought the NLRB was supposed to be, an
impartial arbiter so as to allow people to make those choices
freely. And a secret ballot does that.
And I am going to have to face a secret ballot next year.
And that is the way it should be. I do not know how my wife
voted. She said she voted for me, but I do not know that for
sure. And that is the way it ought to be.
Chairman Kline. The gentleman's time has expired.
Mr. Roe. I yield back.
Chairman Kline. Mr. Kucinich?
Mr. Kucinich. Thank you very much, Mr. Chairman.
I have been involved in several hearings dealing with the
NLRB. And what occurs to me is that in being very familiar with
the case of the workers at Boeing, the question really is going
to be whether or not the workers at Boeing are going to have
any right to recourse under the National Labor Relations Act.
Now, whether you are from Washington State, South Carolina
or Ohio, where I am from, the question is going to arise, will
the workers in South Carolina have less protection than workers
in Washington State? And will workers all over America have
less protection as a result of the National Labor Relations Act
effectively being vitiated by our friends in the majority. This
is a serious question about workers' rights.
Now, one of the witnesses talked about--did his analysis
about why union membership dropped. Let me offer mine. Passage
of NAFTA; passage of the General Agreement on Tariffs and
Trade; emergence of the World Trade Organization; the passage
of China trade; we lost millions of manufacturing jobs in trade
agreements that were aimed at a race to the bottom.
We saw the best trained workforce. But frankly, a lot of
our corporations, they are not committed to the red, white and
blue. Their only color is green. You know, we take a pledge of
allegiance at the beginning of our congress. Corporations do
not take that pledge. They do not have any allegiance to the
United States of America; their allegiance to their bottom
line. Fine, but do not come here and give us lectures about the
imperative of protecting workers' rights.
So, our workers here do not have--are not put on the same
level as workers in China, let us say, which is a Communist
country. Last I checked, we are still a democracy.
According to the statistics from the Organization for
Economic Cooperation and Development, American workers today
are more vulnerable to being fired without cause, more
vulnerable to not getting severance, more vulnerable to being
part of a mass layoff with little notice than any worker in one
of the 14 other member countries of the OECD. The other 14
member countries are Western democracies comparable to the
United States, nations we consider to be our peers; countries
like the U.K., Australia, Ireland, Canada, France, Germany.
What a situation for America to be in.
You know this whole idea about the National Labor Relations
Board too powerful, it favors unions. Human Rights Watch report
from 2000 warned that American companies have little incentive
to respect workers' rights in the face of weak remedies called
for by the National Labor Relations Act. According to the Human
Rights Watch, the remedies, which this Congress voted to weaken
last week are so meager that American workers are treated by
employers as a minor cost of doing business. This is over 10
years ago.
I believe that given the fact that we have so many
Americans who are unemployed or underemployed will corporations
sit on record amounts of cash. Things are even worse today for
workers in America.
Now, in the time that I have left, I have a question for
Mr. Mack regarding the notice posting rule. The U.S. Chamber of
Commerce and others have sued to block the NLRB's rule that
requires employers to post a notice of workers' rights under
the NLRA. One of their contentions is that requiring a posting
of this notice of employee rights violates employers' first
amendment rights.
So, does the requirement that employers post a notice
advising employers--employees of the current minimum wage or
the employee's right to file a complaint under employment
discrimination laws or a report of violation to OSIA also
violate employers' first amendment rights. Mr. Mack?
Mr. Mack. Your question--here is the question you are
asking. Does it violate the employer's first amendment right to
post a notice? There are two questions to that.
First, does the NLRB have the authority to do that? And I
think that answer is no. We have operated under the NLRB for 75
years without such obligation. When you look at your statue,
there is nothing in the NLRA which gives the board that
authority.
You look at some of these other statutes, the ADEA and some
others, this Congress included a provision that the agency can
require the employer to post notice. NLRB has no such----
Mr. Kucinich. Can you explain what is different about
posting a notice regarding the National Labor Relations Act
when compared with OSIA or the Fair Labor Standards Act?
Mr. Mack. Two things, sir. One, the agency does not have
the authority to do it. Congress gave them the authority to do
it in some of the others.
And number two, the language in the notice that the board
is requiring to post goes beyond the board authority. The
Congress says in the National Labor Relations Act, you must
file an unfair labor practice, charge them 180 days after the
event. The NLRB says if you do not post a notice, your time--
statute of limitations does not run. There is nothing that
gives the board that authority.
The NLRA is entirely different from the----
Chairman Kline. The gentleman's time has expired.
Mr. Mack. Thank you.
Chairman Kline. Mrs. Roby?
Mrs. Roby. Thank you, Mr. Chairman.
Thank you to all of you for your testimony this morning.
Mr. King, in your experience, what kind of information does
the union--excuse me--provide to the employee?
Mr. King. There is--Mrs. Roby, it can be anything from very
scant information regarding dues, regarding constitution and
bylaws, which are all very important legal governing documents;
too often very strident campaign material. And employees,
frankly--and I know we can debate back and forth whether the
employer said something wrong or the union said something
wrong.
But employees frankly have a difficult time discerning what
really is fact and what is fiction. And what is really a
problem with these new proposed election rules, they diminish
time significantly for employees. Put aside unions and
employers' interests. The new rules would diminish
significantly the time for employees to figure it out for
themselves. And that is what we really ought to be here about,
I think; making sure employees have rights.
Mr. Martin. I----
Mrs. Roby. Right. So--and excuse me. So, in determining the
accuracy of the information provided to employee--the
employer--excuse me. The employee by the union, what recourse
do the employees have if they are provided with inaccurate
information?
Mr. King. Very little. Frankly, the NLRB standards are such
that the union, and to a certain extent the employer can engage
in considerable puffery during the campaign process. And once
that election is concluded, there is very little that can be
done.
Mrs. Roby. No recourse.
Mr. King. Now, I understand, and pardon me for just a
moment. I understand Mr. Martin's point. You can always
decertify. Well, yes, that is true in the statute, but that is
exceptionally difficult. That requires employees to obtain
legal counsel, expert advice, go through a process of getting
at least 30 percent of the bargaining unit to agree. It is
exceedingly difficult to do.
Mrs. Roby. Well, that goes to a point made by my colleague,
Mr. Gowdy earlier. What are the restrictions on union and
employer speech during the representation election drive? What
are the restrictions?
Mr. King. Not a great--not a great deal, frankly. The board
in recent decisions, we probably would agree, Mr. Martin, on
some of these decisions. The board has permitted considerable
leaway for the parties to engage in court election campaigning.
Again, it is back to employees. How do they figure it out? How
do they really determine what is in their best interest? And
that is very difficult.
Mrs. Roby. Right. And my first question had to do with the
employee determining about accurate or inaccurate and what
recourse they have. Let us just state for the record, what
recourse does the employer have once they find out, again going
through that legal process?
Mr. King. Not a great deal. There is a very recent decision
by this board wherein a union had posted in campaign material
pictures of voters, prospective voters, people in the voter
unit giving the impression that each one of those employees
whose picture had appeared on that union campaign piece was in
fact supporting the union. Some employees came forward and said
that is not what I said you could use or how you could use my
picture. But yet the board said that was Okay.
So, the employer is limited to a great extent what it can
do to try to overturn an election. Pursuing election objections
are difficult. Under the new proposed election rules it is
going to be even more difficult.
Mrs. Roby. Right.
Mr. Martin. This board has sanctioned----
Mrs. Roby. Excuse me, Mr. Martin. I have a very limited
time.
And I want to talk to Ms. Ivey because we have not had a
lot of time with you. And I appreciated your courage to be here
and your willingness to be very frank with this body about your
experience. And I really just want to give you an opportunity.
I understand your frustration in being denied the
opportunity to participate in the election because the employer
voluntarily recognized the union. And so now your opportunity
under the Lamons Gasket ruling, you do not have that right to
vote.
I want you to tell all of us in here why it is so important
for you to have the opportunity to participate in that
election.
Ms. Ivey. Well, because we live in the United States, and I
have always, as I stated earlier, believed that a vote is truly
an election, a card check. And I am not saying, as Mr. Martin
said, that there is a lot of misinformation, whether
intentional, not intentional. But a vote at the end of the day
says, yes, I want to be a member of the union; no, I do not.
I work with other people in other departments that are in a
union. I do not have anything per se against the union. I just
choose--I want a choice to say no, I do not want to be in a
union, as did 45 percent of the people when I just asked them,
did you really feel you had a--this was a vote? Did you have a
voice, because even if I had a card, if I do not turn it in I
do not have a voice.
But if I turn it in, my voice is yes. I want an opportunity
for everybody to say yes or no when you vote for an elected
official. You do not say--or a ballot. You know, you have a
choice, yes or no.
Mrs. Roby. Thank you so much. I really appreciate it,
again, for your courage to be here.
Thank you, Mr. Chairman. My time is expired.
Chairman Kline. I thank the gentlelady.
Mr. Altmire?
Mr. Altmire. Thank you, Mr. Chairman.
Mr. King, I am trying to get a handle on exactly what the
issue is that we are discussing here. Are we talking about the
legal ability of the NLRB to carryout actions which you and
many members of the business community clearly disagree with,
but they are within the scope of the current law? Or are you
making the case, and Mr. Mack and others also that they are
outside of the law in some of the decisions that they have
made? Did they have the legal ability to carryout these
decisions, even though you disagree with them?
Mr. King. We would have concerns, Congressman, on both
levels. Where arguably the board may be permitted under
existing case law, it is gone so far in one direction due to
its totality of cases that it has not presented the type of
climate for fair, unbiased adjudication.
But these little minds can argue about certain areas of the
law, concede that. But we are most concerned about specialty
health care where we believe the board has not followed the
law. And the election proposed rules we believe are outside the
scope of the law on a number of points: due process issues, not
having a hearing before an election. So, on both levels we have
concerns.
Mr. Altmire. And do you feel like your concerns will be
heard in a way that is within the scope of the law, and that
there will be a decision made by a court based upon the claims
that you are making?
Mr. King. I agree with Mr. Martin that there is always--I
should not say always. Strike that; that there is a court of
appeal option in many circumstances. That what we really are
facing at the end of this year is an NLRB with only two city
members. And as you may know, under the decision of the U.S.
Supreme Court, a new process still, the board will not be able
to adjudicate or function, which I think is a tragedy for
everybody, labor and management and employees.
So, we may not be able, unless the Senate confirms one of
the nominees or both. Or we have another recess appointment
from the president, and that is controversial. We will have a
LRB that cannot function, and who not be able to even appeal
under the courts of appeal.
So, that is why we have another concern about specialty
health care. We may not be able to even pass that. Yes, court
of appeal remedies available in adjudication.
The last point I would make is that in rulemaking, it is
exceedingly difficult to take a challenge to a rule into
federal courts. It can be done. It has been done, but very
difficult.
Mr. Altmire. Well, Senate confirmation clearly is an issue
that needs to be discussed outside of----
Mr. King. Right.
Mr. Altmire [continuing]. The parameters.
But, with regard to favoritism, and I do not know the
numbers. Perhaps you do. In recent decisions from the NLRB, do
you have a rough estimate of the percentage of times or the
number of times where they have sided with the employer versus
the union.
Mr. King. No. Excellent question. We intend to amend the
record on that point.
I agree with Mr. Martin that on the run-of-the-mill
discharge case, and cases where employers and unions are out of
line, this board has addressed those issues. We would agree on
that. What we do not agree on are the very important policy
cases.
And as I mentioned earlier, Member Hayes, the Republican
has dissented in 59 cases in a very short period of time. That
is not healthy. That is not healthy for the agencies. It is not
healthy for unions. It is not healthy for employers.
And I will tell you what employers tell me. They cannot
figure out what the law is. And you talk about red tape, legal
costs, et cetera. That is not good for this economy
irrespective of your labor or management viewpoint.
So, it is a problem that needs remedy. We need to get to a
point where an employer, a union, an employee can bring a case
to an unbiased agency and get a fair hearing on an expedited
basis. The current direction the board, at least from the
employer perspective, says that is not available.
Mr. Altmire. I guess you are hitting exactly on the point
that I am trying to get at. And I am asking the question
without a preconceived answer. But, are you suggesting that in
those very big cases that you are talking about that the NLRB
is operating outside the scope of what is legally available to
them to decide?
Or are you just saying they are outside the mainstream,
they are hurting employers, there is an unintended consequence?
We can argue the policy of that, but are they, in making those
decisions, violating the law?
Mr. King. Yes. In specialty health care I think they have
gone beyond the law. Yes on proposed election rules. Yes on the
poster as it relates to the independent unfair labor practice
charge, the totaling of the statute of limitations and the
union animus that would be thrust upon the employer.
It is debatable on whether a piece of paper can be required
to be posted. It is unfortunate we have to spend so much time
on that. That I agree with. That is debatable.
But certainly in those areas and certain other areas,
clearly the board does not follow the law. Other areas I would
concede they are within their right to adjudicate as they have.
It is a policy question. And it gets back--and your question is
an excellent one. It gets back to this oscillation or back and
forth when we have a Democrat administration or a Republican
administration. It is not good.
We have to adders this on a broader base. And I know that
is an issue, Mr. Chairman, for another hearing, another day.
But the current system, notwithstanding all the fine public
servants we have, does not seem to be working.
Chairman Kline. The gentleman's time has expired.
Mr. Platts?
Mr. Platts. Thank you, Mr. Chairman. I want to thank you
for hosting this hearing. I appreciate all the witnesses being
here.
And I guess first, a comment that I know in the title of
the hearing it is--and I think--and I agree, when you look at
all the issues the NLRB has actively taken a pro-union. But how
I would, I think even more importantly describe what they have
done is anti-worker, union or non-union. And I will highlight
two. And Ms. Ivey, your testimony hits right on a point on both
of them, the timeframe that the NLRB is looking at shortening
to not allow a full and informed decision to be made by
workers, whether or not to be union.
I am a former union member, teamster, Local 430. And I am
withdrawn in good standing from about 24 years ago; still keep
it in my desk drawer. I am not anti-union. I am pro worker
fairness.
So, the timeframe and the suggestion that just a few days
or even 14 days, and in your case you are given 2 days of a
hearing. Twelve days after that conference or that meeting,
boom, you are represented. I mean, no one would think that is a
fair approach if given an opportunity to honestly comment on
it.
And your analogy to--if we had a presidential election and
said hey, we are going to elect a president or governor or
mayor, and by the way, the election is going to be 2 weeks from
now, and by the way, we may do it by open card check and not by
secret ballot, that would be an outrage across this country,
understandably. And whether or not to unionize, I would contend
is one of the most important decision that a citizen makes
because it is about their livelihood, about their job, their
pay, their benefits, their working conditions.
And to rush into this decision--so, first the shortening
the timeframe is outrageous and not about worker--protecting
workers, again, union or not. The possibility of disclosure of
personal information, your email, your phone number; if you
want to have a private phone number, that is your right and we
should not be saying no, it has to be given to potential
representative, a union for their use.
The card check system, and Ms. Ivey, you said it well in
your testimony. You say ``every time I was reassured by the
NAJA my vote was confidential.'' And you go on to say the card
check process undermines the privacy and voices of the very
workers they seek to represent.'' I think it captures it.
You know when I have talked to unions about this issue and
expressed my absolute opposition to card check, I always ask a
question. With rare exception, how do most unions vote on
whether to accept or not a proposed labor contract that their
union management team has negotiated with the management
negotiators. They rarely do it by open show of hands. They do
it by secret ballot so the members of the union can vote in
private on whether--why do they do that?
Mr. Martin. Because they do not have to vote.
Mr. Platts. So that they do not have to publicly say I am
with my union leaders or I am opposed to what they agree to. I
think they agree to a terrible contract. They do it by, you
know, secret ballot. And if it is a good idea for whether to
agree to a union contract is an even better idea of whether to
have a union represent you or not. And so both of those issues
I think are dead wrong and anti-worker, anti-fairness, which is
what our nation is long stood for when it comes to elections.
Ms.--or, I am sorry. Mr. Mack, in trying to better
understand, as my understanding in the denial of the petition
for a secret ballot because of the Lamaze decision that when
the NLRB did that they basically said you are going to have to
wait at least 6 months, and depending if it is a recognition
board or a contract board, maybe as long as 4 years before you
can then have an actual secret ballot.
Mr. Mack. Absolutely.
Mr. Platts. So, am I understanding that correctly?
Mr. Mack. You are right on the point, sir.
Mr. Platts. So, we have an NLRB who does not think it is
any problem to shorten it to a couple days, you know, or I will
say 2 weeks to whether to unionize or not. But if you want to
have a secret ballot and not unionize you got to wait 6 months
or years. I mean, it captures the pro-union approach of the
NLRB, and it is not pro-worker; it is pro-union.
Can you expand on that? And especially maybe on the
Giffords Stream, the contract bar and the recognition bar.
Mr. Mack. On the contract bar, the employer and the union
have negotiated a contract. The employees ratify the contract
in some terms, in some fashion. So, they know that they are
going to be stuck by the contract for a time. That is
important.
When the recognition part that we are dealing with here is
so many times employees and their cases, a zillion cases out
there where someone says to an employee, sign here, it is just
to get an election. Sign here, we just want to keep contact
with you. Do this and do that. Never telling the employees you
are going to be stuck with it.
And then the employer and the union enter into this
recognition deal the employees are stuck with the union----
Mr. Platts. Ms. Ivey's case captures it exactly.
Chairman Kline. And I am sorry, the gentleman's time has
expired.
Mr. Tierney, you are recognized.
Mr. Tierney. Thank you.
Mr. Martin, help me out and put some perspective on this.
If I am an individual working on a company and somebody
misleads me into signing a card for union representation, is
not there recourse against that?
Mr. Martin. Sure there is. Sure, it is an unfair labor
practice. And if it is the basis for the voluntary recognition
it can be set aside.
Mr. Tierney. So, if you have got a beef, bring the brief.
This is sort of nonsense to bring it up here, right?
Mr. Martin. Right.
Mr. Tierney. So, look. I am hearing things about how far
this board has gone off in one direction and how I think one
witness said, oh, we are going back and forth. The fact of the
matter is that recent decisions have restored decades long law.
Is that correct?
Mr. Martin. Absolutely.
Mr. Tierney. And----
Mr. Martin. And all this conversation about specialty
health care, again, what the board says in specialty health
care that the board finds that employees in the group that
share a community of interest after considering the traditional
criteria, that means the criteria that goes back and is
traditional.
Mr. Tierney. So, some people that have a beef, they do not
like the traditional criteria. Apparently the Bush board did
not like it because they, for instance in the Lamons Gasket
case, have been off 1966 to 2007, 41 years. So there is
Republicans and Democrats in the White House, right?
Mr. Martin. Exactly.
Mr. Tierney. And no member, no member raised an objection
to it during that period of time on the board.
Mr. Martin. Correct.
Mr. Tierney. So, you got to the Bush era and they decide
they do not like it. And so they toss it. And then when it gets
restored, people argue about, well gee, you know we are
upsetting precedent here and we are going back and forth. Just
because we have an outlier in that one board, one period of
time that upset historic law. Is that correct?
Mr. Martin. Well, and actually in this case it was the Park
Hills case that applied specifically to nursing homes. And what
the board says is we are just going to treat every----
Mr. Tierney. Case by case.
Mr. Martin. Case by case.
Mr. Tierney. And that is what the board went back to doing,
treating it case by case.
Mr. King. If I may----
Mr. Tierney. Sorry. I am having a conversation with Mr.
Martin here. You have had more than ample opportunity to, I
think----
Mr. King. I apologize.
Mr. Tierney [continuing]. Back and get some direction on
this.
So, tell me your perspective of this, Mr. Martin? Am I
right in saying that rather than show a bias, this board is
basically restoring what had been traditional law?
Mr. Martin. Absolutely. We complained quite a bit during
the Bush board. And we took our medicine and moved on. And it
is--this is the same--you know this is simply you know the way
the board traditionally manages its policy.
Mr. Tierney. Well, actually there was a period of time from
1966 to 2007 where at least the Lamons Gasket case where
whatever the administration, whatever party and members of the
board, they all consistently went along until we got to the
Bush group.
Mr. Martin. In fact, the only thing that has changed with
Lamons Gasket is that in the nursing home industry it is now
going to be subject to the same traditional community of
interest test that every bargaining unit has. These guys--you
know, frankly if they could sell their interpretation, I would
buy it. But it just does not.
Mr. Tierney. Right.
Mr. Martin. What it says is we are going to go back to the
traditional criteria, and that means an appropriate unit will
be right. And even though a larger unit might be okay, but we
are not going to force people into a larger unit unless there
is an overwhelming community of interest. And that goes back to
that narrow exception where you know nurses are trying to
exclude some nurses because they are on the wrong shift.
Mr. Tierney. So, there is a right, I take it, for an
employer to voluntarily accept the union when they want to. Is
that right?
Mr. Martin. Yes.
Mr. Tierney. Okay. And this is apparently what Ms. Mack
bumped up against?
Mr. Martin. Yes.
Mr. Tierney. So, first of all if Ms. Mack contends that
people were forced to sign those cards, whatever, by misleading
statements or whatever, we should look for Ms. Mack to have
filed a complaint somewhere, is that right? Then have it
adjudicated in her favor.
Mr. Martin. Yes, Ms. Ivey.
Mr. Tierney. See any evidence of that?
Mr. Martin. In this case?
Mr. Tierney. Yes.
Mr. Martin. Well, I mean, it is--you know we often hear
people complain about what happened. But you got to prove it.
So, I mean if--you know, certainly if it can be proven you know
she would be entitled to a remedy.
Mr. Tierney. So, she has a remedy on that basis.
Ms. Ivey. Can I ask a question?
Mr. Tierney. Well, actually the way we usually do it around
here is we ask the questions because you are the people with
the direct relevant information. That is why we are asking on
that basis or whatever.
So, no, I appreciate your testimony and all of your
comments. I just, I guess, do not quite see what it is other
than that things were restored to their traditional value and
people liked it when they were out of sync.
I yield back.
Chairman Kline. I thank the gentleman.
Mr. Walberg, you are recognized.
Mr. Walberg. Thank you--thank you, Mr. Chairman.
And thanks to each of the witnesses for being here. And
especially the Michigan State--the University of Michigan
representative here today, Mr. Mack.
Mr. Mack. Blue go green and white.
Mr. Walberg. [Off mike.]
Mr. Mack [continuing]. Mr. Congressman.
Mr. Walberg. If you want to answer my next question----
Mr. Mack. Yes, sir?
Mr. Walberg. That is not a winning statement around here.
Mr. Mack. I understand.
Mr. Walberg. But having a twin brother that is a Buckeye,
hey, what can you say for family?
Mr. King, I do want to ask you this question. I am a
representative from Michigan, a non-right-to-work state. I hate
to say that, but it is a non-right-to-work state. We are
challenged with the task of luring employers into the state.
If you could give me a brief description how the specialty
health care decision--in fact, I think of the specialty health
care decision as far more important than even Boeing. Not as
high profile, but it has greater impact, I think than even
Boeing. How the specialty health care decision would affect a
company operating in my hometown of Jackson, Michigan, let us
say, in acquiring employees.
Mr. King. Congressman, specialty health care from my
perspective, unless Mr. Martin can prevail somehow on the NLRB
to reverse what it just did, is the most significant reversal
in the recent history of board law. Per the question-and-answer
that just went on, I was going to hope to say was that
specialty health care reversed 20 years of precedent of Park
Manor under both Democrat and Republican boards.
If we are correct that the overwhelming community of
interest test has now been implemented, that is another
reversal of 30 plus years of precedent. It is not correct to
say we are just going back to our law. That is just flat
incorrect.
Per your question, it is specialty holds in your state, the
small business restaurant, let us say, that has cooks. That is
perhaps a separate appropriate unit; the servers perhaps a
separate appropriate unit.
Mr. Walberg. Micro units.
Mr. King. Right. Micro units. The cashier, I could go on
and on, the people that wash the dishes. Where do we draw the
line? And that is not a job creator.
I spent a lot of time in Michigan also, Mr. Congressman, in
Michigan, Ohio, the other states from this part of the country.
We cannot take many more hits. We need to create jobs.
Mr. Walberg. Now, going back to the decision that was made
earlier, did not members of the board under Chairwoman Liebman
hold an opposite opinion just about a year ago in a separate
case, Wheeling Island Gaming?
Mr. King. Absolutely. That is what is really ironic. The
former chair of the board, Wilma Liebman, an excellent jurist,
very bright woman, agreed on just the opposite approach in the
Wheeling Gaming case.
Mr. Walberg. What was that approach?
Mr. King. There the union was attempting to have a separate
unit of poker dealers, separate unit of others within a casino.
And the board, with Chair Liebman, a Democrat on the board,
sided with then Member Schaumburg and Member Becker dissented.
We do not understand this. That was the law just a year
ago, and now it seems to be turned upside down.
Mr. Martin. I can explain----
Mr. Walberg. They wanted a larger unit instead of the
smaller unit. Let me ask you, in basis of that issue, if this
decision is so far out of line, can this go right to the
federal court for decision?
Mr. King. Unfortunately not.
Mr. Walberg. We are stuck with it.
Mr. King. What we have to do as the employer is refuse to
bargain. The election ballots are just open in specialty health
care, by the way. And a small, micro unit was approved for
representation, which the workers have a right to do. But then,
if the employer wants to contest that unit, it has to refuse to
bargain.
An unfair labor practice complaint then issues, or charge,
excuse me, is filed. The general counsel issues a complaint,
and then the employer appeals into the federal courts of
appeal. We are off into years of litigation and expense.
Mr. Walberg. Let me turn to Mr. Mack then, and say, what
happens? If this is a lengthy period of time that is going to
take place, how do all companies live under this decision in
the meantime?
Mr. Mack. Ask your question one more time, please, sir.
Mr. Walberg. Hearing that this is a lengthy process to get
through it, in the meantime what happens to all the companies
now living under the decision?
Mr. Mack. Most of them are trying to bargain with the union
to get an agreement. And more importantly, Congressman, we are
talking about going to federal courts. There are many times you
are talking about small to medium-sized employers. And they do
not have the money to run off to federal court like some of the
bigger ones did.
So, these are just bad decisions here. They are just--when
employers are trying to operate under these near decisions,
moving employees from one position to another, from one
department to another, getting product on the assembly line,
they are just impossible to do. It Balkanizes the operation.
There is too much conflict and confusion going on. They are not
good.
Mr. King. Congressman, just very briefly----
Chairman Kline. I am sorry. I hate to do this, but the
gentleman's time has expired. We are drawing to the close of
the hearing.
I want to recognize Mr. Miller for his closing remarks.
Mr. Miller. Thank you very much, Mr. Chairman. I think this
hearing has pointed out a number of the redundancies in the
four hearings that we have had, but I guess we will continue to
plow this ground. I would like to use my time to ask a couple
of questions.
Ms. Ivey, when did you find out about the card procedure?
Ms. Ivey. The email was sent July 20th.
Mr. Miller. July 20th of----
Ms. Ivey. This year.
Mr. Miller [continuing]. 2011?
Ms. Ivey. Yes, this year.
Mr. Miller. And did you know about the card provisions for
that--for recognizing the union, the process before?
Ms. Ivey. I know of it. I have heard of it because there
are other unions in our workplace, or the same union, but other
departments.
Mr. Miller. So, what was the surprise that you experienced
when you got the card?
Ms. Ivey. I never received a card.
Mr. Miller. So, you did not sign a card?
Ms. Ivey. No. I was never given that opportunity. I guess I
would have had to call the union to get one if I wanted to.
Mr. Miller. No. I think you have a right under the
agreement that you may revoke your card or--either by request
of the union or through a neutral umpire at any time after the
day of the card count. And the cards have to be made available
to the employees. Are you aware of that?
Ms. Ivey. Well, they were never made. I live in Salem, and
there are four of us in Salem. We never even received a card,
never saw anything----
Mr. Miller. Did you know that your employer can provide
information to the union about you as an employee?
Ms. Ivey. I do not know that.
Mr. Miller. Did you know--did the other employees ask for
cards?
Ms. Ivey. My understanding is that there were employees
that went to the union to ask for cards so that they could
distribute them to employees.
Mr. Miller. Were you aware that the union had access to
your workplace at different times during the card process?
Ms. Ivey. They probably did, but I live in Salem and most
of the activity was in Portland.
Mr. Miller. In the question of violations, are you aware
that you can--you could have brought those to the attention of
the partnership committee?
Ms. Ivey. My understanding, and again part of this is I do
live 60 miles south----
Mr. Miller. No, I understand. Did you----
Ms. Ivey. Okay.
Mr. Miller. Did you bring what you thought was a violation
to the attention of the partnership committee?
Ms. Ivey. I did not know it was a violation not to be
offered a card, to be honest.
Mr. Miller. You know what I think? I think if they had
posted this in your workplace, because this has been in
existence since August of 1999, maybe employees would know
their rights under the agreements that Kaiser entered into with
the union.
It is not required to be posted, apparently, but it would
have been nice to be posted and people could have--you could
have consulted this during the election process. You could have
found out your rights. You could have found out your
obligation.
You could have found out where you go to file your
grievances, and what impact they might have, and what the rules
for the election are because they are all spelled out here. It
seems to me the posting has some value because this is what
Kaiser and the union agreed to how this process would go
forward.
I live in an area where I think one out of five people who
have health insurance have Kaiser. Kaiser is a very big
operation in my area, and these agreements have existed for a
long time. So, I think there is probably some merit to posting.
Ms. Ivey. I will agree that I know that there is a job--or
a posting involving new notices of other things. I think my
whole case stems on the fact that I believe that we followed
all the rules to do a petition because there were many of us
that felt that a card count was----
Mr. Miller. I understand that. I understand that. But the
suggestion was that somehow this card, and it explicitly says
that the card has to tell you that this is for the purposes of
recognition of the union. There is no other purpose that can be
done. You suggested you thought the card was for something
else.
Apparently nobody went to the partnership committee and
complained about that. That is to be addressed if that would be
the case.
I am just trying to point out, you know, there is great
upset here because somebody posted the rights of workers under
the law of the United States of America in the workplace, very
similar to what is done under the FSLA.
And yet at the same time, I would assume the workers would
have liked to have this posted so as you rotate through,
because as whole balance process about when you are hired and
when the unit is closed and when it is open and all the rest of
that. But we act like posting is un-American.
I mean, that is your presentation of posting here is that
somehow it is un-American. The type face is the same and you
have the right to belong to a union and your right not to
belong to a union. Type face is the same in engagement
activities and not to engage in activities. But somehow that is
all un-American.
Thank you, Mr. Chairman.
Chairman Kline. I thank the gentleman.
This hearing has revealed, I think we heard from all of
you. We on this committee talk back and forth about how the
NLRB does move back and forth. And it is a pendulum. When there
is a Republican in the White House, it is weighted with
Republicans on the board. When it is a Democrat in the White
House, it is weighted with Democrats on the board. And so
accusations of being active have gone back and forth.
I remember when I was the minority here, we did complain
sometimes. When they are in the minority, they complain.
But, I do also believe in hearing testimony today that this
board is especially active. That is Mr. King's testimony. And
so, I do believe it is incumbent upon us to provide some checks
to what that board is doing. So, despite the complaints from my
colleagues, we probably will continue to provide oversight to
this board and move legislation as necessary to put it back in
as close a balance as you can get when a system that is
fundamentally broken.
It has been suggested by Mr. King and others that the Act,
the NLRA ought to be changed. I agree. I think that is going to
be very hard to do, and there is a reason why it has not really
been changed in all these years. It is very, very hard to do it
because--in large part because of the swings back and forth and
the partisan nature of the board.
I want to thank the witnesses for their testimony, and for
the lively engagement of discussion; and my colleagues for
their participation. There being no further business, the
committee stands adjourned.
[An additional submission of Chairman Kline follows:]
Prepared Statement of the HR Policy Association
Mr. Chairman and distinguished members of the committee: Thank you
for this opportunity for HR Policy Association to express strong
concern over the activities of the National Labor Relations Board,
which, in recent months, has proposed a regulation undermining the
longstanding election process and issued a series of decisions that
will cause significant disruption in the workplace and limit employee
choice in determining union representation.
HR Policy Association is a public policy advocacy organization
representing chief human resource officers of major employers. The
Association consists of more than 330 of the largest corporations doing
business in the United States and globally, and these employers are
represented in the organization by their most senior human resource
executive. Collectively, these companies employ more than 10 million
people in the United States, and their chief human resource officer are
generally responsible for employee and labor relations for their
respective companies.
The Board's recent action against Boeing, the proposed regulation
dramatically shortening the time for union elections, and the Specialty
Healthcare decision which encourages micro-units in the workplace, all
serve to disrupt the workplace and undermine and hinder job growth and
economic recovery. We applaud your Committee for holding a hearing on
these critical issues. We strongly encourage Congress to take action,
either through changes in the statute or in the funding of the Board,
to limit or curtail these activities. While there are several issues of
significant importance, what follows are the Association's concerns
regarding the proposed election regulations and concerns related to the
recently issued Specialty Healthcare decision.
I. The NLRB's Expedited Election Rules Would Curtail Employees' Ability
to Make a Fully Informed Decision on Union Representation
On June 22, 2011, the National Labor Relations Board (NLRB) issued
a Notice of Proposed Rulemaking with respect to Representation-Case
Procedures (76 Fed. Reg. 36812) which contains a number of
controversial changes to the highly complex rules and procedures
governing union representation elections conducted by the NLRB. While
most of these changes have generated controversy in and of themselves,
it is the broader goal of the proposed changes--a substantial
shortening of the election period from the current median of 38 days to
as little as 10 days--that prompts the strongest objections from the
employer community. Such a brief period will deprive employees of the
ability to hear and discuss among themselves the views of both their
employer and their co-workers, which was one of the most offensive
aspects of the card check provisions under the Employee Free Choice
Act.
Election Data Indicates Proposal is a Solution in Search of a
Problem. In a statement issued in conjunction with publication of the
rules, NLRB Chairman Wilma Liebman states that, despite some
improvements over the years, ``the current [election] rules still seem
to build in unnecessary delays, to encourage wasteful litigation, to
reflect old-fashioned communication technologies, and to allow
haphazard case-processing.'' Yet, the case is not made in the proposal
for this apparent breakdown. Indeed, in his dissent, NLRB Member Brian
Hayes cites NLRB data to show that the vast majority of elections
proceed in a very expeditious manner. Currently, the NLRB's internal
objective in representation cases is to complete elections within 42
days of the filing of the petition. However, in 2010, the regional
offices exceeded this objective, completing initial elections in
representation cases in a median of 38 days from the filing of the
petition.\1\ Citing BNA data,\2\ Member Hayes further adds: ``Inasmuch
as unions prevailed in 67.6 percent of elections held in calendar year
2010 and in 68.7 percent of elections held in calendar year 2009, the
percentage of union victories contemplated by the majority in the
revised rules must be remarkably high.''
---------------------------------------------------------------------------
\1\ NLRB General Counsel, Summary of Operations (Fiscal Year 2010),
GC. Mem. 11-03, at 5 (January 10, 2011).
\2\ ``Number of NLRB Elections Held in 2010 Increased Substantially
from Previous Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 (May 3,
2011).
---------------------------------------------------------------------------
Failure to Seek Stakeholder Views. In addition to its failure to
justify the need for the proposed changes, the credibility of the
proposed rules is further undermined by the decision of the Board not
to solicit any views from the stakeholder community before issuing the
proposal. In our Blueprint for Jobs in the 21st Century, HR Policy
recommends ``involvement of essential stakeholders in the formulation
of new employment policies'' (i.e., through a process of negotiated
rulemaking) as a solution to the problem of existing rules failing to
reflect the realities of the workplace. Instead of being formulated
through a collaborative process, employment regulations often simply
implement the wish list of a powerful interest group. Moreover,
President Obama's Executive Order 13563 specifically states that
``[b]efore issuing a notice of proposed rulemaking, each agency, where
feasible and appropriate, shall seek the views of those who are likely
to be affected, including those who are likely to benefit from and
those who are potentially subject to such rulemaking.'' While
independent agencies like the NLRB are not required to comply with the
Executive Order, they should operate within its spirit, particularly in
a highly sensitive matter like union representation elections, where a
number of interests are affected. As Member Hayes notes in his dissent,
there were a number of ways of involving the affected stakeholders in
this process, including negotiated rulemaking or, at the very least,
receiving comment by the Board's standing Rules Revision Committee and
by the Practice and Procedures Committee of the American Bar
Association. Indeed, some of the proposed changes, such as allowing the
electronic filing of key documents with the Board, have not generated
significant opposition and, as part of an overall collaborative
process, could be part of a package of welcome improvements to the
Board's election procedures.
Curtailing Employee Access to Essential Information Before Voting.
Under the Board's proposed ``hurry up and vote'' procedures, employees
will be denied critical information in making an informed decision
regarding whether to be represented by a union--a decision that in the
vast majority of situations is, as a practical matter, a permanent one
that will bind not only the voting employees but later hires as well.
There are two critical areas where key information will be limited or
curtailed:
Shorter Campaign Periods While the proposed rules do not
identify a specific time target, a key provision in the changes
requires the NLRB regional director to set the election at ``the
earliest date practicable.'' Member Hayes estimates that the changes
will result in elections between 10 and 21 days. This is far shorter
than the current 38 day median (within which, as BNA data indicates,
unions win 2 of every 3 elections already), which is itself a
considerably shorter period already than voters have in deciding
whether a candidate will represent them for 2, 4 or 6 years in
Washington. In most cases, this gives employees ample opportunity to
hear not only from their employer but to discuss the issues among
themselves. Both the Board and the U.S. Supreme Court have recognized
that Federal labor policy favors ``uninhibited, robust, and wide-open
debate in labor disputes'' and that the enactment of Section 8(c)
``manifested a congressional intent to encourage free debate on issues
dividing labor and management.'' \3\
---------------------------------------------------------------------------
\3\ See Chamber of Commerce of the United States v. Brown, 554 U.S.
60, 60-68 (2008); Franzia Bros. Winery, 290 rules provide that, where
the disputed group of employees involves fewer than 20 percent of the
total number, all employees are to vote anyway, with the votes to be
counted after the unit determination is made. Thus, in a casino
setting, the blackjack and poker dealers may have to vote without
knowing whether their terms and conditions of employment will be
covered by a collective bargaining agreement that also covers waiters
and waitresses, bartenders and others that may or may not have a
sufficient ``community of interest'' with them.
---------------------------------------------------------------------------
Not Knowing Who Else the Union Would Represent In seeking
to expedite the election process, the proposed rules would eliminate
pre-election proceedings in certain situations where the employer
disputes the union's claim of which employees will vote upon and
potentially be represented by the union. Currently, the Board will make
a ``unit determination'' in those situations before the employees vote.
The dispute may be based on different job classifications or, as
discussed below, whether certain employees are exempt supervisors and
therefore excluded from the voting and the representation. The proposed
N.L.R.B. 927, 932 (1988). Section 8(c) of the National Labor Relations
Act protects an employer's right to communicate with employees
regarding unions and representation issues.
Uncertain Status of Supervisors. One critical group that will be
affected by the ``20 percent'' rule just described are supervisors,
whose exempt status as such determines not only whether they will vote
and be represented by the union, but also whether their conduct is
regulated by the same rules that apply to the employer. Thus, if they
participate as employees in the campaign and it is later determined
that they were in fact supervisors, statements they made for or against
the union could be deemed coercive. This could result in the election
being overturned, as occurred in Harborside Healthcare, Inc., 343
N.L.R.B. 906 (2004) where an employee who helped the union solicit
supporters was later deemed a supervisor.
Denial of Employer Due Process Rights. A number of the changes,
purportedly in the interests of expediting election procedures, would
curtail the ability of employers--especially small businesses--to
effectively present their position to the Board on critical issues like
which employees should or should not be in the unit. Many of these
highly technical but significant changes would violate the requirement
of ``an appropriate hearing'' under the National Labor Relations
Act,\4\ including:
---------------------------------------------------------------------------
\4\ 29 U.S.C. Sec. 159(a)(1).
---------------------------------------------------------------------------
Limiting access to the NLRB for review of both pre-
election and post-election determinations made by regional bureaucrats
who often are not lawyers;
Requiring employers to articulate and substantiate their
positions on key election issues prior to any hearing or risk waiving
those arguments; nor could they offer evidence or cross-examine
witnesses with respect to virtually any issues not raised by them at
the outset, even if those issues have a critical impact on the
employees;
Requiring an employer who contests the union's description
of the ``appropriate unit'' to identify ``the most similar unit'' that
the employer would deem appropriate, and provide the names, work
locations, shifts and job classifications of those employees, which
would then become available to the union.
Expanding Union Access to Employees' Personal Information. Under
current procedures, once an election is ordered, employers are required
to provide the union with a list of the names and addresses of the
employees who will be voting. The proposed rules would expand the
information required under so-called ``Excelsior lists'' \5\ to include
telephone numbers and email addresses, though it is not clear whether
this information would be personal, business or both. Either is
problematic. If personal email addresses and telephone numbers are
required, this would be a significant incursion on employees' privacy.
If the requirement involves business telephone numbers and email
addresses, this would be an unprecedented expansion of union access to
employers' workplaces.
---------------------------------------------------------------------------
\5\ Named after Excelsior Underwear, Inc., 156 N.L.R.B. 1236
(1966).
---------------------------------------------------------------------------
II. Decision in Specialty Healthcare Furthers Long-term Goal of Labor
to Undermine Fundamental American Labor Law Principle of
``Majority Rules''
While a number of National Labor Relations Board (NLRB) actions in
recent months have generated strong public controversy, a recent
decision that will be enormously disruptive to U.S. employers' ability
to compete globally has remained well below the public's radar screen.
Decided on August 26, 2011 by a vote of 3 to 1, with NLRB Member Brian
Hayes dissenting, the decision in Specialty Healthcare,\6\ enables
unions to secure organizing victories by carving out very small
``micro-units'' within a workplace, such as cashiers in a retail
setting or poker dealers in a casino setting. What makes the situation
even more alarming is the inability of employers to obtain a prompt
review in the courts, which will likely take two or three years at
best.
---------------------------------------------------------------------------
\6\ 357 NLRB No. 83 (August 26, 2011).
---------------------------------------------------------------------------
Determining Who Votes in a Union Representation Election. When a
union seeks to organize employees in a workplace, the first issue to be
addressed is usually which group of employees will vote and ultimately
be represented by the union if it is successful--i.e., the
``appropriate unit.'' The general touchstone in making this
determination, which is very fact-sensitive, is whether there is a
``community of interest'' among the employees. When a union has
authorization cards signed by at least 30% of the employees in the
unit, it files a petition with the NLRB regional office. If the
employer believes the union's target is not an appropriate unit, it can
challenge the petition, prompting a hearing and determination by the
Board as to what the appropriate unit is, i.e., a ``unit
determination.'' In making this determination, there is a presumption
in favor of the union's petition. However, if the employer believes
that other employees have been inappropriately excluded, it will argue
that there is a broader community of interest and, prior to Specialty
Healthcare, the employer generally could prevail if it could show that
the union's unit does not have interests that are ``sufficiently
distinct'' from the larger group.\7\
---------------------------------------------------------------------------
\7\ Cf. Wheeling Island Gaming, 355 NLRB No. 127, Slip. Op. at 1
n.2 (August 27, 2010); Newton-Wellesley Hospital, 250 NLRB 409, 411-12
(1980).
---------------------------------------------------------------------------
Union's Victory Strategy Often Premised on Smallest Possible Group.
The smaller the group of employees voting in an election, the fewer the
union needs to gain a majority. Thus, unless there is strong sentiment
favoring the union in the larger workplace, the union will target a
discrete group where pro-union sentiment is strongest and hope to hold
the support of a majority of them in the election. If successful, the
union can then try to secure better wages, benefits and other
advantages for this small group, creating a case it can then make to
the larger workforce. Thus, in Specialty Healthcare, rather than
seeking to organize the entire non-acute healthcare facility--or even
all nurses--the the union targeted certified nursing assistants (CNAs),
and excluded registered nurses (RNs) and licensed professional nurses
(LPNs), not to mention cooks, dietary aides, business clericals,
residential activity assistants and others covered by the employers
human resource policies.
The Goal of Organizing ``Minority Unions.'' As organized labor's
ability to organize new members has declined, it has begun supporting
the concept of ``minority unions,'' i.e., enabling any subset of a
workforce's employees to form a union that the employer must bargain
with, even if a majority of the employees do not support it. Although a
petition has been filed with the NLRB by a broad coalition of unions to
achieve this through rulemaking,\8\ the National Labor Relations Act is
clearly based on a ``majority rule'' principle. Moreover, such a
policy, which mirrors the laws in several European countries, would be
viewed by employers and, likely the overwhelming majority of
policymakers as well, as being highly disruptive and divisive in
American workplaces at a time when U.S. employers are struggling to
compete globally. Nevertheless, absent a change in the statute, labor
is interested in any approach that enables it to subdivide a workforce
to obtain smaller ``majorities'' in elections.
---------------------------------------------------------------------------
\8\ Petition in the Matter of Rulemaking Regarding Members-Only
Minority-Union Collective Bargaining (Aug. 14, 2007).
---------------------------------------------------------------------------
The Specialty Healthcare Decision. In Specialty Healthcare, the
Board adopted a new standard for determining appropriate units, raising
the bar substantially--impossibly, in the view of many labor lawyers--
for an employer to challenge the union's unit as excluding other
employees with a shared community of interest. Abandoning the
``sufficiently distinct'' standard, the Board will now require
employers to show that there is an ``overwhelming community of
interest'' with the larger group by pointing to ``factors that overlap
almost completely.'' Effectively, any time a union files a petition
involving a group of employees with the same job title and description,
it will likely prevail. Although in deciding the case the Board sought
in one part of the decision to claim that the new rule would only apply
in non-acute health care facilities, the otherwise broad statements
made in the decision prompted dissenting Member Brian Hayes to point
out what management attorneys are generally concluding as well:
[T]his test obviously encourages unions to engage in incremental
organizing in the smallest units possible * * * [It will] make it
virtually impossible for a party opposing this unit to prove that any
excluded employees should be included * * * [T]he Board's Regional
Offices * * * will have little option but to find almost any
petitioned-for unit appropriate * * *\9\
---------------------------------------------------------------------------
\9\ Specialty Healthcare, 357 NLRB No. 83, Slip. Op. at 19-20. 10
Wheeling Island Gaming, Inc., 355 NLRB No. 127, Slip. Op. at 1. 6
---------------------------------------------------------------------------
The Disruptive Impact of the Decision. The successful operation of
a business often depends on the ability to maintain uniform human
resource policies that provide wage scales, benefits, scheduling,
promotions, and so forth to a broad range of employees within the
workplace. To have these policies fragmented, requiring bargaining with
a union representing a small group of employees every time changes are
made, can make or break the employer's ability to maintain the
flexibility needed to respond to the demands of the marketplace. This
becomes even more difficult if there are multiple unions, each
representing one small part of the workforce. Thus, in a retail
setting, in order to change major store policies, such as hours of
operation, management of work flows during peak seasons, etc., the
store owner may first have to bargain with the unions separately
representing the cashiers, the salespersons in each department, the
loading dock, the delivery truck drivers, etc. To underscore the
absurdity of the ruling in Specialty, an earlier ruling in a case
involving a casino rejected a union's petition to organize the poker
dealers as a distinct unit from the blackjack, roulette, craps dealers
and so forth.10 Under Specialty Healthcare, the union would likely have
prevailed, as signaled by Member Craig Becker's dissent in the case.
Inability of Employers to Bring a Legal Challenge Necessitates
Legislative Solution. What is perhaps most disturbing about the
Specialty Healthcare decision is the inability of employers to obtain a
challenge in the courts, due to the complicated procedures of the NLRB.
With extremely rare exceptions, the NLRB does most its rulemaking with
decisions in cases rather than regulations. There are two kinds of
decisions--those such as Specialty Healthcare involving election
procedures (called ``R cases'') and those involving unfair labor
practices (``C cases''). Only decisions in C cases can be appealed
directly to the federal courts, nor generally is there any realistic
ability to obtain declaratory relief by a court that a Board decision
is wrong. If an employer wishes to challenge an R case decision where
the union ``won'' the election, it must refuse to bargain with the
union, thus committing an unfair labor practice, which then invokes the
Board's procedures in those cases. Thus, the time frame from the filing
of a union petition to a review by the courts typically involves at
least a year or two if not longer. Meanwhile, as employers wait for the
right case to move through these procedures, every NLRB regional office
in the United States will be required to rule on union petitions in
accordance with Specialty Healthcare. Absent legislation overturning
the decision, the disruptive effects will be felt immediately and for a
very long time.
______
[Whereupon, at 12:19 p.m., the committee was adjourned.]