    [House Hearing, 112 Congress]
    [From the U.S. Government Publishing Office]

              H.R. 3094, THE WORKFORCE DEMOCRACY AND FAIRNESS ACT

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

                                    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, OCTOBER 12, 2011

                                   __________

                               Serial No. 112-43

                                   __________

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

                       Available via the World Wide Web:
                           www.gpo.gov/fdsys/browse/
               committee.action?chamber=house&committee=education
                                       or
                Committee address: http://edworkforce.house.gov

                      U.S. GOVERNMENT PRINTING OFFICE
    70-580                    WASHINGTON : 2011
    -----------------------------------------------------------------------
    For sale by the Superintendent of Documents, U.S. Government Printing Office,
    http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                        JOHN KLINE, Minnesota, Chairman

    Thomas E. Petri, Wisconsin           George Miller, California,
    Howard P. ``Buck'' McKeon,             Senior Democratic Member
        California                       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 October 12, 2011.................................     1

    Statement of Members:
        Kline, Hon. John, Chairman, Committee on Education and the
          Workforce..................................................     1
            Prepared statement of....................................     3
        Kucinich, Hon. Dennis J., a Representative in Congress from
          the State of Ohio, prepared statement of...................   111
        Miller, Hon. George, senior Democratic member, Committee on
          Education and the Workforce................................     4
            Prepared statement of....................................     6

    Statement of Witnesses:
        Cohen, Charles I., senior counsel, Morgan, Lewis & Bockius
          LLP........................................................     8
            Prepared statement of....................................     9
        Hunter, Michael J., partner, Hunter, Carnahan, Shoub, Byard &
          Harshman...................................................    22
            Prepared statement of....................................    23
        Sullivan, Robert G., on behalf of the Retail Industry Leaders
          Association (RILA).........................................    16
            Prepared statement of....................................    17
        Russell, Phillip B., shareholder, Ogletree, Deakins, Nash,
          Smoak & Stewart, P.C.......................................    29
            Prepared statement of....................................    31

    Additional Submissions:
        Chairman Kline:
            Letters of support:
                Stevens, Corinne M., senior director, legislative
                  affairs, Associated Builders and Contractors (ABC).    68
                Coalition for a Democratic Workplace.................    70
                Trauger, Joe, vice president, human resources policy,
                  National Association of Manufacturers (NAM)........    74
                Yager, Daniel V., chief policy officer & general
                  counsel, HR Policy Association.....................    75
            H.R. 3094, the Workforce Democracy and Fairness Act......   112
        Mr. Miller:
            Grant, Chris, Schuchat, Cook & Werner, prepared statement
              of.....................................................    80
            ``Staying Union-free in a Pro-union World,'' slide
              presentation...........................................    82

                            H.R. 3094, THE WORKFORCE
                           DEMOCRACY AND FAIRNESS ACT

                                  ----------

                          Wednesday, October 12, 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, Biggert, Goodlatte,
    Roe, Thompson, Walberg, DesJarlais, Rokita, Bucshon, Gowdy,
    Barletta, Roby, Heck, Ross, Miller, Kildee, Payne, Andrews,
    Woolsey, Hinojosa, McCarthy, Kucinich, Holt, Bishop, Loebsack,
    Hirono and Tierney.
        Staff present: Katherine Bathgate, Press Assistant/New
    Media Coordinator; Casey Buboltz, Coalitions and Member
    Services Coordinator; Ed Gilroy, Director of Workforce Policy;
    Benjamin Hoog, Legislative Assistant; Marvin Kaplan, Workforce
    Policy Counsel; Barrett Karr, Staff Director; Ryan Kearney,
    Legislative Assistant; Brian Newell, Deputy Communications
    Director; Krisann Pearce, General Counsel; Todd Spangler,
    Senior Health Policy Advisor; Linda Stevens, Chief Clerk/
    Assistant to the General Counsel; Alissa Strawcutter, Deputy
    Clerk; Loren Sweatt, Senior Policy Advisor; Kate Ahlgren,
    Investigative Counsel; Aaron Albright, Communications Director
    for Labor; Daniel Brown, Junior Legislative Assistant; Jody
    Calemine, Staff Director; Brian Levin, New Media Press
    Assistant; Celine McNicholas, Labor Counsel; Richard Miller,
    Senior Labor Policy Advisor; Michele Varnhagen, Chief Policy
    Advisor/Labor Policy Director; and Michael Zola, Senior
    Counsel.
        Chairman Kline. A quorum being present, the committee will
    come to order. Good morning. Welcome to the committee's
    legislative hearing on H.R. 3094, the Workforce Democracy and
    Fairness Act.
        I would like to thank our witnesses, all four, for joining
    us today. We are here today for one simple reason. The National
    Labor Relations Board is wreaking havoc on the nation's
    workforce, and it must be stopped. In recent months, the NLRB
    has taken a number of steps that move federal labor policy in a
    radically new direction.
        Under the board's ambush elections proposal, employers will
    have just 7 days to find legal representation and prepare the
    case they must present before an NLRB election officer. If they
    fail to raise an issue before the start of a preelection
    hearing, with few exceptions employers lose the ability to
    address a concern during the hearing process.
        Let me just raise this little tome right here. This is what
    an employer is supposed to be able to navigate--``How to Take a
    Case Before the NLRB,'' 8th Edition. Seven days. Workers will
    also be harmed by this troubling change in policy. The board's
    proposal would leave employees with as little as 10 days to
    consider all the consequences of joining the union before
    casting a ballot.
        Additionally, the board's plan would delay answers to
    questions often critical to an employee's decision, and
    undermine employer access to a fair hearing. When coupled with
    its Specialty Healthcare decision, which enables union leaders
    to manipulate the workplace for their own gain, it becomes
    clear the board is promoting unionization by stifling
    employers' free speech and crippling workers' free choice.
        I am open to ideas that will modernize the election
    process, but those efforts should never undermine the
    fundamental rights of employees and employers. Expansive
    changes to workforce policy should be vetted by the people's
    elected representatives, first by this committee and then by
    the full Congress.
        Hundreds of millions of workers and employers will be
    forced to live with the consequences of these dramatic changes,
    and they deserve a congressional response. The legislation
    before us today will require the NLRB to change course and
    reaffirm key protections workers and employers have received
    for decades.
        The Workforce Democracy and Fairness Act provides employers
    at least 14 days to prepare for the election hearing, thereby
    ensuring access to a full and fair hearing. This provision
    removes an arbitrary deadline and restores board discretion
    over the election process. By affording workers at least 35
    days to hear both sides of the debate before casting their
    ballot, the legislation guarantees their ability to make an
    informed decision.
        In addition to these workforce protections, H.R. 3094 also
    reinstates the traditional stand for determining which
    employees will participate in union representation and an
    individual's ability to request board review before the
    election takes place.
        Finally, the bill safeguards privacy by empowering workers
    to determine the personal information provided to the union. As
    we saw with the release of the latest employment data last
    week, our nation is still struggling to create the jobs we so
    desperately need. The American people have asked Congress to do
    everything possible to encourage economic growth and
    investment.
        While some may insist this can only come through more
    temporary stimulus spending and permanent tax increases, my
    colleagues and I know the one thing business owners and
    entrepreneurs need right now is certainty. The policies
    advanced by the NLRB are dramatically increasing the pressure
    and uncertainty facing business owners, making it more
    difficult to create jobs and plan for the future.
        One employer in particular has voiced his concern about the
    board's actions and the implication it bears on the economy.
    Michael Whalen is the founder of Heart of America Group, a
    business that operates hotels and restaurants throughout the
    Midwest and employees 3,000 workers.
        In the days before the release of the board's ambush
    election proposal, he wrote, quote--``The impact of this
    decision is clear. American businesses will have yet another
    reason to invest elsewhere rather than creating new jobs here
    at home.'' Rather than doubling down on the failed policies of
    the past, we have a responsibility to remove the regulatory
    hurdles facing employers.
        Congress can either support an activist agenda, or listen
    to the voices of employers like Michael Whalen, who strive
    every day to grow their businesses and create new opportunities
    for America's workers.
        I look forward to the hearing this morning, hearing the
    views of our excellent panel of witnesses, and will now yield
    to the senior Democratic member of the committee, Mr. Miller,
    the gentleman from California, for his opening remarks.
        [The statement of Mr. Kline follows:]

                Prepared Statement of Hon. John Kline, Chairman,
                    Committee on Education and the Workforce

        Good morning, and welcome to the committee's legislative hearing on
    H.R. 3094, the Workforce Democracy and Fairness Act. I would like to
    thank our witnesses for joining us.
        We are here today for one simple reason: the National Labor
    Relations Board is wreaking havoc on the nation's workforce and it must
    be stopped. In recent months, the NLRB has taken a number of steps that
    move federal labor policy in a radically new direction.
        Under the board's ambush elections proposal, employers will have
    just seven days to find legal representation and prepare the case they
    must present before an NLRB election officer. If they fail to raise an
    issue before the start of a pre-election hearing, with few exceptions
    employers lose the ability to address the concern during the hearing
    process.
        Workers will also be harmed by this troubling change in policy. The
    board's proposal would leave employees with as little as 10 days to
    consider all the consequences of joining a union before casting a
    ballot. Additionally, the board's plan would delay answers to questions
    often critical to an employee's decision and undermine employer access
    to a fair hearing. When coupled with its Specialty Healthcare decision,
    which enables union leaders to manipulate the workplace for their own
    gain, it becomes clear the board is promoting unionization by stifling
    employers' free speech and crippling workers' free choice.
        I am open to ideas that will modernize the election process, but
    those efforts should never undermine the fundamental rights of
    employees and employers. Expansive changes to workforce policy should
    be vetted by the people's elected representatives--first by this
    committee, and then by the full Congress. Hundreds of millions of
    workers and employers will be forced to live with the consequences of
    these dramatic changes and they deserve a Congressional response.
        The legislation before us today will require the NLRB to change
    course and reaffirm key protections workers and employers have received
    for decades. The Workforce Democracy and Fairness Act provides
    employers at least 14 days to prepare for the election hearing, thereby
    ensuring access to a full and fair hearing. This provision removes an
    arbitrary deadline and restores board discretion over the election
    process. By affording workers at least 35 days to hear both sides of
    the debate before casting their ballot, the legislation guarantees
    their ability to make an informed decision.
        In addition to these workforce protections, H.R. 3094 also
    reinstates the traditional standard for determining which employees
    will participate in union representation and an individual's ability to
    request board review before the election takes place. Finally, the bill
    safeguards privacy by empowering workers to determine the personal
    information provided to the union.
        As we saw with the release of the latest employment data last week,
    our nation is still struggling to create the jobs we so desperately
    need. The American people have asked Congress to do everything possible
    to encourage economic growth and investment. While some may insist this
    can only come through more temporary stimulus spending and permanent
    tax increases, my Republican colleagues and I know the one thing
    business owners and entrepreneurs need right now is certainty.
        The policies advanced by the NLRB are dramatically increasing the
    pressure and uncertainty facing business owners, making it more
    difficult to create jobs and plan for the future. One employer in
    particular has voiced his concerns about the board's actions and the
    implications it bears on the economy.
        Michael Whalen is the founder of Heart of America Group, a business
    that operates hotels and restaurants throughout the Midwest and employs
    3,000 workers. In the days following the release of the board's ambush
    election proposal, he wrote, ``The impact of this decision is clear:
    American businesses will have yet another reason to invest elsewhere
    rather than in creating new jobs here at home.''
        Rather than doubling-down on the failed policies of the past, we
    have a responsibility to remove the regulatory hurdles facing
    employers. Congress can either support an activist agenda or listen to
    the voices of employers like Michael Whalen, who strive every day to
    grow their businesses and create new opportunities for America's
    workers.
        I look forward to hearing the views of our excellent panel of
    witnesses, and will now yield to the Senior Democratic Member of the
    committee, Mr. Miller, for his opening remarks.
                                     ______

        Mr. Miller. Thank you very much, Mr. Chairman. Today this
    committee meets for the fifth time this year on the issues
    relating to the National Labor Relations Board. Rather than
    focusing on getting Americans back to work, the majority is
    stubbornly continuing their ideological war against workers and
    their unions, with the majority's laser-like focus on the
    special interest battle, one could be led to think that our
    economic problems are the American, and his or her rights at
    work.
        That the worker who exercises his or her right to bargain
    for a better life is bringing America's business to its needs.
    That a group of employees who ask for safe working conditions
    have created high unemployment. Or that a massive economic
    uncertainty is ensuing because employers may have to put up a
    poster outlining the rights under the National Labor Relations
    Act.
        Of course, this is complete nonsense. Our nation's workers
    exercising their rights did not cause the current economic
    problems. We all know what did. By exercising their rights,
    they help build the middle class. These rights have been on the
    books for more than 75 years, and are not now all of a sudden
    causing this uncertainty.
        We should, however, be certain about one thing. Working
    families are hurting through no fault of their own, and need
    this Congress to take action to create jobs. Instead of
    addressing their concerns, we are discussing a bill that should
    be even more appropriately named the ``Election Prevention
    Act'' because it does just that.
        Its singular goal is to delay, and openly prevent, union
    representation elections. This legislation with regard to
    elections is a little bit like that cab in Compton. It is
    always coming, but it never arrives. And the idea is to deny
    workers' opportunity and their voice at work.
        The Election Prevention Act does this in three key ways.
    First, rather than minimizing undue delay in elections, a long-
    standing problem because of the current law's loopholes, the
    Republican bill mandates delays. In provision after provision,
    the bill's overarching concern is that workers' choice be
    postponed with mandatory waiting periods.
        Second, rather than discovering frivolous litigation, the
    Election Prevention Act encourages it. Unscrupulous employers
    will have an incentive to appeal all preelection decisions
    regardless of merit because no election could proceed until all
    appeals, frivolous or not, are reviewed. They and their union-
    busting consultants know that the delay gives them more time to
    use any means legal or illegal to overcome employee interest in
    forming a union.
        These appeals will create a massive, wasteful backlog on
    the taxpayer's dime, and a mountain of frivolous litigation. As
    a result, workers will increasingly have to wait months or
    years for an election. And as the months and years tick by,
    this bill clearly hopes that those workers will simply give up.
        Third, the bill manipulates the procedure for deciding who
    is in a bargaining unit. Employers will have a larger role in
    determining who can potentially be part of the union, rather
    than the workers and the union that they seek to join. The
    practical impact of this change is that employers are going to
    find it much easier to gerrymander elections.
        It will increase the changes of an election ultimately
    never being ordered, and employers will stuff the ballot box
    with voters who were never engaged by the organizing drive. In
    summary, by favoring delay at every turn this bill denies
    workers their rights to a free and fair election. It is a
    cynical bill, it takes time away from what we should be doing.
        We should be acting on America's most urgent priority of
    creating jobs, instead of undermining workplace democracy. This
    bill does not help a single laid off worker get retained in a
    new career, and it does not create a single construction job or
    an education job.
        It does create a lot of work for union-busting law firms.
    They get to file frivolous appeals on the taxpayer dime. It
    does make it harder for workers to have a voice at work. It
    does make it harder for working people to rebuild the middle
    class. Cynical misnamed bills like this only increase
    discontent among those who sent us here.
        They see a special interest bill getting the time of day,
    while they struggle to keep a roof over their heads. Is it any
    wonder Congress has such a historical low approval rate? It is
    well past the time to get back on track and work on the side of
    middle class Americas.
        That is precisely why I asked this committee to take
    immediate action on President Obama's job bill nearly a month
    ago. It is the only comprehensive bill that will immediately
    create jobs, that will lay a foundation for future economic
    growth. And it is fully paid for.
        But the majority has done nothing, and that is why I have
    asked Americas to write and tell us how the economy is
    impacting them. Over 2 weeks, more than 700 people throughout
    the country wrote in. Reading their responses, there is no lack
    of motivation on the part of the unemployed Americas. They want
    us to act on jobs now so that they can start earning a
    paycheck.
        But the time is running short. The longer we ignore the
    millions of Americas struggling in this economy the worse that
    economy will get--more foreclosures, more layoffs, and higher
    deficits. This committee should be doing everything we can to
    get Americas back to work, not taking away their rights at
    work.
        [The statement of Mr. Miller follows:]

      Prepared Statement of Hon. George Miller, Senior Democratic Member,
                    Committee on Education and the Workforce

        Good morning, Chairman Kline.
        Today, this committee meets for the fifth time this year on issues
    relating to the National Labor Relations Board. Rather than focusing on
    getting Americans back to work, the majority is stubbornly continuing
    their ideological war against workers and their unions.
        With the majority's laser-like focus on this special interest
    battle, one could be led to think our economic problems are the
    American worker and his or her rights:
         That a worker who exercises his or her right to bargain
    for a better life is bringing American business to its knees.
         That a group of employees who ask for safer working
    conditions have created high unemployment.
         Or, that massive economic uncertainty is ensuing because
    employers may have to put up a poster outlining rights under the
    National Labor Relations Act.
        Of course, this is complete nonsense. Our nation's workers
    exercising their rights did not cause our current economic problems. By
    exercising their rights, they helped build the middle class.
        These rights that have been on the books for more than 75 years are
    not now all of a sudden causing `uncertainty'.
        We should, however, be certain about one thing: Working families
    are hurting through no fault of their own and need this Congress to
    start paying attention. Instead of addressing their concerns, we are
    discussing a bill that should be more appropriately named the `Election
    Prevention Act' because it does just that.
        Its singular goal is to delay and ultimately prevent union
    representation elections. Its aim is to deny workers the opportunity
    for a voice at work.
        The `Election Prevention Act' does this in three key ways.
        First, rather than minimizing undue delay in elections, a long-
    standing problem because of the current law's loopholes, the Republican
    bill mandates delay. In provision after provision, the bill's
    overarching concern is that workers' choice be postponed with mandatory
    waiting periods.
        Second, rather than discouraging frivolous litigation, the Election
    Prevention Act encourages it. Unscrupulous employers will have an
    incentive to appeal all pre-election decisions, regardless of merit,
    because no election could proceed until all appeals, frivolous or not,
    are reviewed.
        They and their unionbusting consultants know that delay gives them
    more time to use any means, legal or illegal, to overcome employee
    interest in forming a union.
        These appeals will create a massive, wasteful backlog on the
    taxpayer's dime and a mountain of frivolous litigation. As a result,
    workers will increasingly have to wait months or years for an election.
    And as the months and years tick by, this bill clearly hopes that those
    workers will just give up.
        Third, the bill manipulates the procedure for deciding who is in a
    bargaining unit. Employers will have a larger role in determining who
    can potentially be a part of a union, rather than the workers and the
    union they seek to join.
        The practical impact of this change is that employers are going to
    find it much easier to gerrymander elections. It will increase the
    chances that an election is ultimately never ordered, and employers
    will stuff the ballot boxes with voters who were never engaged by the
    organizing drive.
        In summary, by favoring delay at every turn, this bill denies
    workers their right to a free and fair election. It's a cynical bill
    that takes time away from what we should be doing.
        We should be acting on America's most urgent priority of creating
    jobs, instead of undermining workplace democracy. This bill doesn't
    help a single laid off worker get retrained for a new career. It
    doesn't create a single construction job or education job.
        It does create a lot of work for unionbusting law firms. They get
    to file frivolous appeals on the taxpayer dime. It does make it harder
    for workers to have a voice at work. And it does make it harder for
    working people to rebuild the middle class.
        Cynical, misnamed bills like this only increase discontent among
    those who send us here. They see special interest bills getting the
    time of day, while they struggle to keep a roof over their heads. Is it
    any wonder Congress has such a historically low approval rating?
        It's well past time to get back on track and work on the side of
    middle class Americans.
        That's precisely why I asked that the committee take immediate
    action on President Obama's jobs bill nearly a month ago. It's the only
    comprehensive bill that will immediately create jobs and will lay the
    foundation for future economic growth. And, it's fully paid for.
        But, the majority has done nothing.
        That's why I asked Americans to write in and tell us how the
    economy is impacting them. Over two weeks, more than 700 people from
    throughout the country wrote in. Reading the responses, there's not a
    lack of motivation on the part of unemployed Americans. They want us to
    act on jobs now so they can start earning a paycheck, not a handout.
        But, time is running short. The longer we ignore the millions of
    Americans struggling in this economy, the worse it will get. More
    foreclosures, more layoffs and higher deficits.
        This committee should be doing everything we can to help get
    Americans back to work, not taking away their rights.
                                     ______

        Chairman Kline. I thank the gentleman. Pursuant to
    committee rule 7-C, all committee members will be permitted to
    submit written statements to be included in the permanent
    hearing record. Without objection, the hearing record will
    remain open for 14 days to allow statements, questions for the
    record, and other extraneous material referenced during the
    hearing to be submitted in the official hearing record.
        It is now my pleasure to introduce our distinguished panel
    of witnesses. First, Charles I. Cohen is currently senior
    counsel at Morgan Lewis. From 1994 to 1996, Mr. Cohen served as
    a member of the National Labor Relations Board. Prior to being
    appointed by President Clinton, he held executive and staff
    labor law positions with the NLRB as well as in private
    practice.
        Bob Sullivan is president of RG Sullivan Consulting. Prior
    to forming his own consulting group in 2009, Mr. Sullivan was
    vice president and associate general counsel for one of the
    nation's largest privately-held companies.
        Michael Hunter is a partner with Hunter, Carnahan, Shoub,
    Byard & Harshman. After working as a union organizer and local
    union president, Mr. Hunter began practicing union-side labor
    law in 1985. He represents unions in the private and public
    sector.
        And now let me turn to my colleague from Florida, Mr. Ross,
    to introduce our final witness. Mr. Ross?
        Mr. Ross. Thank you, Mr. Chairman. I am happy to introduce
    a fellow Floridian, Mr. Phillip Russell. Phil is a shareholder
    at Ogletree Deakins, a law firm which was founded in 1977 and
    has offices in 23 states. Phil had been designated an
    employment super-lawyer for the past 2 years, a distinction
    which places him among the top 5 percent of all attorneys in
    his field.
        He also maintains an AV peer review rating from Martindale-
    Hubbell, the highest rating possible. Phil believes in
    protecting employers' investments in their people, and has
    earned a reputation as one of the leading labor attorneys in
    Florida. I very much appreciate his willingness to testify
    before us today, and am happy to welcome him here.
        I yield back.
        Chairman Kline. Thank the gentleman. Welcome to all of you.
    Before I recognize each of you to provide your testimony, let
    me again briefly explain our lighting system. You will each
    have 5 minutes to present your testimony. When you begin, the
    light in front of you will turn green. When one minute is left
    the light will turn yellow. And when your time has expired the
    light will turn red, at which point I would ask you to wrap up
    your remarks as best that you are able.
        After everyone has testified, members will each have 5
    minutes to ask questions of the panel. You will find that I am
    reluctant to drop the gavel while you are still speaking. I
    will be less reluctant with my colleagues on both sides of the
    aisle. But I would encourage you, when you see that light go
    red to try to move quickly to wrap up that testimony.
        Let us start with Mr. Cohen.

      STATEMENT OF CHARLES COHEN, SENIOR COUNSEL, MORGAN, LEWIS &
      BOCKIUS, LLP, FORMER MEMBER, NATIONAL LABOR RELATIONS BOARD

        Mr. Cohen. Chairman Kline, Ranking Member Miller, and
    members of the committee, thank you for your invitation to
    participate in this hearing. I am honored to appear before you
    today.
        The Workplace Democracy and Fairness Act would restore the
    critical role that Congress should play in formulating our
    national labor and employment policy. The legislation
    constitutes a measured response to actions by a majority of the
    NLRB members, especially over the past 4 months, that would
    substantially change our federal laws without an appropriate
    mandate from Congress.
        In my testimony today, I will describe why congressional
    action is needed to restore the law, and procedures guaranteed
    by the NLRA. On June 22 of this year the NLRB published an
    extensive proposed rule regarding union elections that would,
    among other things, dramatically shorten the period of time
    between a union filing and election petition with the board and
    the actual holding of the election.
        The proposed rule would also effectively gut an employer's
    ability to mount a lawful, effective information dialogue with
    its employees on whether or not to select union representation.
    What has the board come up with in these proposed rules?
        It has proffered the gimmick of an emasculated hearing,
    summary judgment standards, offers of proof, preclusive rules
    to limit issues, regional director decisions devoid of
    explanation at time of issuance, and frenetic time deadlines
    that disregard other obligations of employers and their
    counsel--all in an attempt to get to that election as soon as
    humanly possible and without giving the employer time to
    communicate with its employees.
        Boardmember Brian Hayes, dissenting from the issuance of
    the proposed rules, wrote, quote--``Make no mistake. The
    principle purpose of this radical manipulation of our election
    process is to minimize, or rather to effectively eviscerate, an
    employer's legitimate opportunity to express its views about
    collective bargaining.''
        By definition, this is a quickie election, as that term was
    used liberally throughout the debate over the Employee Free
    Choice Act and potential alternative legislation in the 111th
    Congress. Nor is the election process too slow. Over the past
    decade, as noted in the proposed rule, elections have occurred
    within a median time of 38 days after the filing of a petition.
        And in fiscal year 2010, the average time from petition to
    an election was 31 days. Because employers exercise no control
    over pre-petition union activities, because unions always have
    only needed to select an appropriate unit rather than the most
    appropriate unit, and often because employers have no knowledge
    of union organizing attempts that occur employers exclusively
    bear the burdens and limitations resulting from this proposed
    shorter election period.
        This renders disingenuous the proposed rule statement that
    its changes would apply equally to all parties, and do not
    impose any limitations on the election-related speech of any
    party. Turning now to Specialty Healthcare, the board's June 22
    rule is not the only problematic issue that I believe brings us
    here today.
        As representatives who stand for election, you
    instinctively know that if you control who comprises the
    electorate, including reducing the size of the electorate to
    artificially low numbers, you will have a key to winning an
    election. That is what the NLRB has done for unions. On August
    26 this year, in Specialty Healthcare, the board announced a
    new standard for determining whether a petition for unit of
    employees is appropriate for collective bargaining.
        For decades, when determining if an exclusion is
    appropriate, the board has examined whether the excluded group
    of employees is sufficiency distinct to warrant their
    exclusion. The board's new standard in Specialty Healthcare,
    however, reverses that inquiry so that employers will have the
    burden of proving that the excluded employees share an
    overwhelming community of interest with the employees included
    in the union's petition.
        The board's new standard, predictably, will facilitate
    union organizing by rendering appropriate extremely small
    bargaining units, even though employees perform work functions
    and are managed in a manner that logically connects them to the
    larger group.
        This measured legislative proposal is needed to restore the
    proper functioning of the NLRB's election procedures and to
    reaffirm that Congress is responsible, in the first instance,
    for establishing and making any fundamental changes in our
    national employment labor law policy.
        Based on my review, the Workplace Democracy and Fairness
    Act essentially seeks a return to the status quo of the long-
    standing and effective election procedures that have been in
    place at the NLRB. The legislation introduced would codify a
    reasonable time framework for conducting NLRB elections--
    reasonable for employers, employees, and unions.
        Under this language, the required pre-election hearings may
    not be held until at least 14 days after the filing of the
    petition, which ensures that all parties have at least some
    time to analyze the issues involved, and prepare for the
    potential hearing. The election could not take place within 35
    days, also a reasonable period of time.
        This concludes my prepared testimony. Thank you again for
    the invitation to appear today. I would be happy to answer any
    questions that members of the committee have.
        [The statement of Mr. Cohen follows:]

            Prepared Statement of Charles I. Cohen, Senior Counsel,
                          Morgan, Lewis & Bockius LLP

        Chairman Kline, Ranking Member Miller, and Members of the
    Committee, thank you for your invitation to participate in this
    hearing. I am honored to appear before you today.
        By way of introduction, I am a senior counsel in the law firm of
    Morgan, Lewis & Bockius LLP, where I represent employers in many
    industries under the National Labor Relations Act (NLRA). From 1994 to
    1996, I had the privilege of serving as a Member of the National Labor
    Relations Board (NLRB or Board), and was appointed by President Clinton
    and confirmed by the U.S. Senate.\1\
        The Workforce Democracy and Fairness Act (H.R. 3094) would restore
    the critical role that Congress should play formulating our national
    labor and employment policy. The legislation constitutes a measured
    response to actions by a majority of NLRB Members, especially over the
    past four months, that would substantially change our federal labor
    laws without an appropriate mandate from Congress. In my testimony
    today, I will describe why Congressional action is needed to restore
    the law and procedures guaranteed by the NLRA.
    A. NLRB's Attempt to Pass Labor Law Reform Through New Regulations
        On June 22, 2011, the NLRB published an extensive Proposed Rule
    regarding union elections (``Proposed Rule'') that would, among many
    things, dramatically shorten the period of time between a union filing
    an election petition with the Board and the actual holding of the
    election.\2\ The Proposed Rule also would effectively gut an employer's
    ability to mount a lawful, effective information dialogue with its
    employees on whether or not to select union representation.
        The Proposed Rule is a transparent attempt to circumvent Congress
    on the issue of how, if at all, to reform the nation's labor laws after
    the failure of the prior 111th Congress to pass the Employee Free
    Choice Act (EFCA), legislation supported by the labor movement that
    would have all but ended secret ballot elections at the NLRB in favor
    of ``card check'' recognition.
        In greater detail, the Board's Proposed Rule would result in an
    array of changes to decades-old representation procedures under the
    NLRA. These are not merely technical changes--they would dramatically
    shorten the time for employees to decide whether or not to vote for
    union representation, and would severely prejudice employers by
    imposing unrealistic deadlines and limiting employer speech (even
    though it is explicitly protected in the statute). Among other things,
    the Proposed Rule would:
         Require that all pre-election hearings take place seven
    days after the filing of a petition (absent special circumstances),
    eliminate all pre-election review by the Board, and require that the
    election date be set at ``the earliest date practicable.'' \3\
         Require employers to provide unions, within seven days of
    the filing of a petition, with a list of employee names, work
    locations, shifts, and job classifications, and to provide, within two
    days of a direction of election, employee addresses, telephone numbers,
    and email addresses (to the extent available).\4\
         Require employers to file a ``Statement of Position''--a
    new form--that must be filed no later than the seven day hearing date.
    It must set forth the employer's position on a host of legal issues.
    Any issues not identified in the Statement would be forever waived.\5\
         Significantly limit the scope of issues and the type of
    evidence that may be litigated before an election, including most
    questions regarding the eligibility of particular individuals or groups
    of potential voters, and dispense with post-hearing briefs unless
    permission is obtained from the hearing officer.\6\
         Permit the Board to decline to review many of the Regional
    Directors' decisions, substantially limiting the review options
    available to employers.\7\
         Permit electronic filing of election petitions, and
    potentially allow the use of electronic signatures to support the
    ``showing of interest''--in other words, possibly allow employees to
    sign union authorization cards electronically via the Internet or
    email.\8\
        Board Member Brian Hayes, dissenting from the issuance of the
    proposed rules, wrote that it is ``certain'' that the proposed rules
    would ``substantially shorten'' the time period from petition filing to
    election date, suggesting that under the proposed rules elections would
    be held ``in 10 to 21 days from the filing of the petition.'' \9\
    Member Hayes also stated in dissent: ``Make no mistake, the principal
    purpose of this radical manipulation of our election process is to
    minimize, or rather, to effectively eviscerate an employer's legitimate
    opportunity to express its views about collective bargaining.'' \10\ By
    definition, this is a ``quickie'' election, as that term was used
    liberally throughout the debate over EFCA and potential alternative
    legislation in the 111th Congress. And as outlined below, the Proposed
    Rule suffers from a number of substantive, fatal flaws that require an
    appropriate Congressional response.
        ``Speed'' Over All Other NLRA Goals. The first flaw is the
    incorrect premise that the current procedures for conducting secret-
    ballot elections ``take too long'' or are ``broken,'' and that this
    delay causes unions to lose more elections. Unions already win far more
    elections than they lose. While union members currently comprise only
    6.9 percent of private sector employees,\11\ unions have prevailed in a
    majority of elections (where there was no incumbent union) every year
    from fiscal year 1997 to the present. And the margin by which unions
    prevailed in these elections has increased from 50.4 percent (in fiscal
    1997) to 64.8 percent (in fiscal year 2010).\12\ Even if these numbers
    were lower, the Board in its neutral role has no business ``taking
    sides'' on how often unions prevail in elections.
        Nor is the election process too slow. Over the past decade, as
    noted in the Proposed Rule, elections have occurred within a median
    time of 38 days after the filing of a petition. And in fiscal year
    2010, the average time from petition to an election was 31 days.\13\
    Those numbers include cases in which a pre-election hearing is held. In
    Fiscal Year 2010, NLRB Regional Offices conducted 1,790 representation
    elections. Of those, 1,648 cases or 92.1 percent were held without
    either party exercising their right to a hearing.\14\ And even among
    the small number of cases in which a hearing was held (142 cases or 7.9
    percent), the median number of days from the filing of a petition to a
    Regional Director decision was 37 days in 2010, significantly shorter
    the Agency's ``ambitious'' target of 45 days.\15\ This time frame has
    been consistent for the last several years, with the median number of
    days from petition to Regional Director decision in contested cases at
    34 days in 2009, 36 days in 2008, and 36 days in 2007.\16\ In spite of
    these figures--which demonstrate the great majority of elections
    already take place quickly--a selective emphasis of ``speeding up''
    elections is pervasive throughout the Proposed Rule.\17\
        The solitary focus on speed constitutes a fundamental distortion of
    the Act's primary election objective stated in Sections 1 and 7, which
    is protecting ``the exercise by workers of full freedom of
    association'' encompassing employee rights to ``self-organization'' by
    having ``representatives of their own choosing,'' with an equivalent
    right ``to refrain from any or all of such activities.'' \18\ Employers
    and unions also have important rights and obligations including those
    set forth in Sections 8(a) and 8(b), which enumerate employer and union
    unfair labor practices; plus the employer's right of free speech set
    forth in Section 8(c). And there is a complex assortment of employee,
    union and employer rights incorporated into the Act's statutory
    provisions regarding elections, set forth in Section 9. Most
    significantly, Section 9(b) states that the ``Board shall decide in
    each case'' what constitutes the appropriate bargaining unit, which is
    designed ``to assure to employees the fullest freedom in exercising the
    rights guaranteed by this [Act].'' \19\ Nowhere does the NLRA contain a
    mandate from Congress giving speed paramount importance at the expense
    of the other objectives explicitly referenced in the statute. Speed
    alone cannot be trumpeted while other statutory goals and obligations
    are trampled upon.
        Employer Free Speech Undermined. Another flaw in the Proposed Rule
    is the unprecedented impact on employer free speech rights. The
    Proposed Rule's shortening of the election time period inevitably will
    undermine the ability of employers--after a petition is filed--to
    engage in speech protected by Section 8(c) of the Act. Section 8(c)
    states:
        The expressing of any views, argument, or opinion, or the
    dissemination thereof, whether in written, printed, graphic, or visual
    form, shall not constitute or be evidence of an unfair labor practice
    under any of the provisions of this [Act], if such expression contains
    no threat of reprisal or force or promise of benefit.\20\
        Because employers exercise no control over pre-petition union
    activities--and often have no knowledge of union organizing--employers
    exclusively bear the burdens and limitations resulting from a shorter
    election period. This renders disingenuous the Proposed Rule's
    statement that its changes ``would apply equally to all parties'' and
    ``do not impose any limitations on the election-related speech of any
    party.'' \21\ Invariably, the Proposed Rule's impact on the timing of
    elections will diminish the employer's right to express views under
    Section 8(c). As noted by Member Hayes, shortening the election period
    ``broadly limits all employer speech and thereby impermissibly trenches
    upon protections that Congress specifically affirmed for the debate of
    labor issues when it enacted Section 8(c) in 1947.'' \22\
        Lack of Due Process and Employer ``Waiver'' of Rights. Under the
    Proposed Rule, it is highly likely that a great number of employers
    will be forced to waive many substantive legal arguments and positions
    based on the abbreviated timeframe in which employers are required to
    enumerate them in the ``Statement of Position.'' But, for the litigious
    employer, there will be an incentive--when confronted by such an
    onerous timetable--to exhaustively identify every potential alternative
    bargaining unit, argument and position that could conceivably have
    compromised employee rights. Like so many other areas governed by the
    Proposed Rule, the predictable outcome would be a proliferation of
    additional issues, more litigation, and a longer overall timeframe for
    representation issues to be resolved. Ironically, these ``shortcuts''
    are being advanced at a time when we are at historic percentage lows in
    federal court challenges to union certifications.
        Employee Rights Negatively Impacted. The Proposed Rule negatively
    impacts employee rights under the NLRA by making the election period so
    short that it would deprive most employees of the time needed to
    reasonably understand the potential benefits or consequences of union
    representation. As noted previously, NLRB elections currently involve a
    median election time period of 38 days, and an average time period of
    31 days.\23\ There is no reasonable justification for reducing this
    period further, given that the NLRA states employees ``in each case''
    should be ``assure[d] * * * the fullest freedom'' to make their own
    choice about union representation.\24\ Employee decision-making about
    union representation involves a multiplicity of more significant
    complex rights and obligations that take time to fully understand.
    Regardless of whether or not a particular employee group ultimately
    favors or opposes union representation, such a decision unquestionably
    produces substantial long-term and day-to-day consequences, including:
         the potential conferral of ``exclusive representative''
    status of a labor organization regarding all matters of wages,
    benefits, hours and terms and conditions of employment, whether or not
    the individual employee so chooses,\25\
         the loss of individual rights to deal with the employer in
    relation to those same subjects,\26\
         uncertainty associated with the consequences of collective
    bargaining,\27\
         possible resort by the union or employer to economic
    weapons like strikes, slowdowns, lockouts and possible temporary or
    permanent replacements,\28\
         financial and other obligations and restrictions--
    including fees, dues, fines and assessments--that unions may lawfully
    impose on employees, consistent with union constitutions and by-
    laws,\29\
         and complex rules regarding how collective bargaining
    works, and significant restrictions on union decertification if
    employees later become dissatisfied with union representation and the
    outcome of bargaining.
        The Proposed Rule's adverse impact on informed employee decision-
    making is made worse by the Rule's additional provisions which, among
    other things, would curtail pre-election hearings and defer the
    resolution of many unit issues, including basic eligibility and scope
    questions, until after the election takes place. Consequently, not only
    would the Proposed Rule impair employee free choice by requiring an
    election much more quickly with little time for consideration, the
    Proposed Rule would deprive employees of important information,
    including whether they are even eligible voters, substantially
    increasing the number of employees who may cast votes based on
    incorrect assumptions. This subverts employee free choice.
        Mandated Disclosure of Employee Phone Numbers and Email Addresses.
    Moreover, the Proposed Rule would impose a new requirement on employers
    to disclose ``available email addresses'' and ``available telephone
    numbers'' of bargaining unit employees on every voter eligibility
    list.\30\ The Proposed Rule identifies no statutory mandate warranting
    an expansion beyond existing Excelsior list home address requirements,
    and Congress has never sought to change or expand the Excelsior list
    disclosures. There is no rationale provided in the Proposed Rule except
    for the Board's observation that an ``evolution'' towards electronic
    communications is taking place in ``pre-election campaign
    communication.'' \31\ The existence of various avenues for employer-
    employee communication has never been interpreted by Congress or the
    Board to require equal access by union organizers to the identical
    vehicles for communication. This aspect of the Proposed Rule would
    constitute a significant intrusion into privacy rights of employees and
    their families. Email addresses and phone numbers are not essential to
    ``an informed employee choice for or against representation'' \32\
    given that the existing Excelsior requirements provide for disclosure
    of every eligible employee-voter's most reliable and near-universal
    point of contact, the home address.
        Statutory Hearing Obligations Ignored. The Proposed Rule would
    grant Regional Directors and Hearing Officers the authority to deny
    employers the right to a pre-hearing election where a dispute over the
    appropriate scope of the petitioned-for unit concerns less than 20
    percent of the bargaining unit (if the disputed individuals were found
    eligible to vote). This portion of the Proposed Rule violates Section
    9(c) of the Act and is misguided as a matter of policy.
        The Board and the courts have long held that Section 9(c) ``makes
    mandatory a preelection hearing.'' \33\ During my tenure on the NLRB,
    the Board responded to a call for more ``rapid'' elections and changes
    to the existing procedures. However, after considering this request,
    the Board concluded that the statutory requirement of a pre-election
    hearing prevented the Board from having an unfettered right to
    accelerate the election process. In Angelica Healthcare Services, the
    Regional Director directed an election without addressing the request
    for a hearing. Citing the plain language of Section 9(c), the Democrat-
    controlled Board held that the Regional Director must provide the
    ``appropriate hearing'' referenced in Section 9(c) of the Act ``prior
    to finding that a question concerning representation existed and
    directing an election.'' \34\ Based on Taft-Hartley's enactment,
    parties have the right under Section 9(c) to present evidence in a pre-
    election hearing. The Proposed Rule's limitation on pre-election
    hearings violates Section 9(c) of the Act, and this limitation should
    not be adopted by the Board. It constitutes misguided policy for the
    Proposed Rule to eliminate or dramatically reduce the role played by
    the pre-election hearing.
    B. Smaller Bargaining Units That Unions Can Organize More Easily:
            Specialty Healthcare
        The Board's June 22, 2011 Proposed Rule is by no means the only
    example of the Board's recent activity to stack the deck in favor of
    unions during the election process. As Representatives who stand for
    election, you instinctively know that if you control who comprises the
    electorate--including reducing the size of the electorate to
    artificially low numbers--you will have a key to winning an election.
    That is what the NLRB has done for unions. On August 26, 2011, in
    Specialty Healthcare & Rehabilitation Center of Mobile, the Board
    announced a new standard for determining whether a petitioned-for unit
    of employees is appropriate for collective bargaining.\35\ The case
    nominally involved the issue of appropriate bargaining units in non-
    acute care healthcare facilities, which in this case was a unit of
    Certified Nursing Assistants.\36\ However, the Board's decision went
    far beyond this rather narrow issue and articulated a new standard for
    determining whether unions in other industries may petition for an
    election among a small group of employees over an employer's objection
    that the union has inappropriately excluded other related groups of
    employees from the prospective unit.\37\
        For decades, when determining if such an exclusion is appropriate,
    the Board has examined whether the excluded group of employees is
    ``sufficiently distinct'' to warrant their exclusion.\38\ The Board's
    new standard in Specialty Healthcare, however, reverses that inquiry,
    so that employers will have the burden of proving that the excluded
    employees share an ``overwhelming community of interest'' with the
    employees included in the union's petition.\39\ The Board's new
    standard predictably will facilitate union organizing by rendering
    ``appropriate'' extremely small bargaining units even though the
    employees perform work functions and are managed in a manner that
    logically connects them to a larger group. As noted by dissenting Board
    Member Brian Hayes, the ``overwhelming community of interest'' test has
    ``vast practical ramifications * * * [because it] obviously encourages
    unions to engage in incremental organizing in the smallest units
    possible.'' \40\ The recent decision therefore allows unions the right
    to petition for inappropriately small units, for example, a unit of
    employees with the same job title or description, and then places a
    stringent burden on an employer to prove an ``overwhelming'' community
    of interest with other employees during an abbreviated and summary pre-
    election process under the Proposed Rule.\41\
        Changing the unit determination standard in this manner not only
    will predictably lead to increased union organizing in the short term,
    it is likely to cause greater problems in new bargaining relationships.
    Bargaining with a small unit of employees, which excludes many other
    employees who share a substantial community of interest (and who may be
    unrepresented or organized by a different union), will impose
    significant costs on employers, and undermine employment stability by
    causing increased workforce fragmentation (at a time when it is all the
    more important for employers to manage employees in ways that are more
    efficient, with employees identifying to a more significant degree with
    the business as a whole). Ultimately, the Board has a statutory
    responsibility to approve bargaining units that are not only
    appropriate for union organizing, but which also are calculated to
    foster stable bargaining relationships and be consistent with effective
    business operations. These considerations are undermined, not
    furthered, by the new Specialty Healthcare standards.
    C. Proposed Legislation Is Reasonable and Balanced Approach for
            Effective NLRB Secret-Ballot Elections and Collective
            Bargaining
        The measured legislation proposed, H.R. 3094, is needed to restore
    the proper functioning of the NLRB's election procedures, and to
    reaffirm that Congress is responsible, in the first instance, for
    establishing and making any fundamental changes in our national
    employment and labor law policy. Based on my review, the Workforce
    Democracy and Fairness Act seeks a return to the status quo of the
    long-standing and effective election procedures that have been in place
    at the NLRB, and the legislation would codify those rules and
    procedures into law and restrict this NLRB--or any future NLRB--from
    attempting to violate the mandates of the NLRA and circumvent Congress
    with regard to election procedures.
        The major provisions of this legislation that would restore the
    status quo to the NLRB's election process include a specific mandate
    that ``in each case'' the Board would, ``prior to an election,'' hold a
    meaningful hearing to determine the unit appropriate for the purposes
    of collective bargaining. These hearings would expressly incorporate
    the Board's standard ``community of interest'' factors to ensure that
    the unit is of appropriate scope and composition to balance employee
    choice with effective collective bargaining. The list of eight
    enumerated factors that comprise the community of interest test are
    drawn from the Board's existing case law precedent. Review of action of
    Regional Directors by the Board would be assured.
        In response to the Board's Specialty Healthcare decision, the
    legislation dispenses with the Board's recent embrace of so-called
    ``micro-units'' by returning the law to its pre-Specialty Healthcare
    state, whereby a union's petition that seeks to exclude certain
    employees would only be processed if the petitioned-for group had
    interests ``sufficiently distinct'' from other employees.\42\ Specialty
    Healthcare's use of the ``overwhelming community of interest'' test to
    promote the expansion of small bargaining units, would, under the
    proposed legislation, be a test appropriately limited to the Board's
    ``accretion'' cases whereby an employee group is added to an existing
    unionized employee group without a secret-ballot election.\43\
        The legislation introduced also would codify a reasonable time
    framework for conducting NLRB elections--reasonable for employers,
    employees, and unions. Under this language, the required pre-election
    hearings may not be held until at least 14 days after the filing of a
    petition, which ensures that all parties have at least some time to
    analyze the legal issues involved and prepare for the potential
    hearing, including the preparation of necessary witness and evidentiary
    support. The actual secret-ballot election may not be held until at
    least 35 days after the filing of the petition, which ensures an
    opportunity for communication by the employer, the employees, and the
    union on the relevant issues associated with employees selecting or
    rejecting union representation.
        Finally, employee privacy rights are adequately protected in the
    legislation by granting employees the choice of how union
    representatives may personally contact them--through either a telephone
    number, email, or home address--rather than have the Board mandate
    through regulation that all of the above, or more, of these methods to
    contact employees must be provided to union representatives. The
    proposed language reflects the spirit of Excelsior and more than
    adequately provides unions the ability to unilaterally contact all
    eligible voters to provide election-related communications.
        This concludes my prepared testimony. Thank you again for the
    invitation to appear today. I would be happy to answer any questions
    that Members of the Committee may have.

                                    ENDNOTES

        \1\ I am not speaking on behalf of Morgan, Lewis & Bockius, the
    National Labor Relations Board, or any other specific organization, and
    my testimony should not be attributed to any of these or other
    organizations. My testimony reflects my own personal views, although I
    wish to thank David R. Broderdorf for his efforts in helping me to
    prepare this testimony.
        \2\ 76 Fed. Reg. 36,812-36,847 (June 22, 2011).
        \3\ 76 Fed. Reg. at 36,825.
        \4\ Id. at 36,820; 36,838; 36,843.
        \5\ Id. at 36,821-23.
        \6\ Id. at 36,824-25.
        \7\ Id. at 36,827.
        \8\ Id. at 36,846.
        \9\ Id. at 36,831 (Member Hayes, dissenting).
        \10\ Id.
        \11\ See U.S. Dep't of Labor Bureau of Labor Statistics, Economic
    News Release, Union Members Summary (2011) (http://www.bls.gov/
    news.release/union2.nr0.htm).
        \12\ See NLRB Election Report (Oct. 19, 2010) at 10. Member Hayes
    indicates unions prevailed in 68.7 and 67.6 percent of all elections
    held in calendar years 2009 and 2010, respectively. See 76 Fed. Reg. at
    36,832 (Member Hayes, dissenting).
        \13\ See Gen. Counsel Mem. 11-09, at 18 (March 16, 2011), cited in
    76 Fed. Reg. at 36,831 n.75 (Member Hayes, dissenting).
        \14\ See Gen. Counsel Mem. 11-03, at 5 (Jan. 10, 2011).
        \15\ Id.
        \16\ Id.; Gen. Counsel Mem. 09-03, at 6 (Oct. 29, 2008).
        \17\ The Proposed Rule refers to the ``expeditious resolution of
    questions concerning representation'' (76 Fed. Reg. at 36,812);
    allowing the Board ``to more promptly determine if there is a question
    concerning representation and, if so, to resolve it by conducting a
    secret ballot election'' (id.); ``Expeditious resolution of questions
    concerning representation is central to the statutory design'' (id. at
    36,813); ``expeditious processing of representation petitions'' (id.);
    ``delays in the regional offices' transmission of the eligibility list
    to the parties'' (id. at 36,816); ``expeditious resolution of questions
    concerning representation'' (id. at 36,817); ``The proposed amendments
    would also shorten the time for production of the eligibility list''
    (id. at 36,821); ``progression of reforms to reduce the amount of time
    required to ultimately resolve questions concerning representation''
    (id. at 36,829).
        \18\ NLRA Sec. Sec.  1, 7, 29 U.S.C. Sec. Sec.  151, 157 (emphasis
    added).
        \19\ Id. Sec.  159(b) (emphasis added).
        \20\ NLRA Sec.  8(c), 29 U.S.C. Sec.  158(c) (emphasis added).
    Obviously, important free speech guarantees also are afforded by the
    First Amendment to the U.S. Constitution. As the Supreme Court has
    recognized, Section 8(c) ``merely implements the First Amendment'' and
    ``an employer's free speech right to communicate his views to his
    employees is firmly established and cannot be infringed by a union or
    the Board.'' NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969).
        \21\ 76 Fed. Reg. at 36,829.
        \22\ Id. at 36,832 (Member Hayes, dissenting), citing Chamber of
    Commerce v. Brown, 554 U.S. 60, 67-68 (2008) (other citations omitted).
    In Brown, the Supreme Court stated that Section 8(c)'s enactment
    ``manifested a `congressional intent to encourage free debate on issues
    dividing labor and management' '' and reflects a ``policy judgment,
    which suffuses the NLRA as a whole, as `favoring uninhibited, robust,
    and wide-open debate in labor disputes'' because ``freewheeling use of
    the written and spoken word * * * has been expressly fostered by
    Congress and approved by the NLRB. Id., quoting Linn v. Plant Guard
    Workers, 383 U.S. 53, 62 (1966) and Letter Carriers v. Austin, 418 U.S.
    264, 272-73 (1974).
        \23\ Id. at 36,814; Gen. Counsel Mem. 11-09, at 18-19 (March 16,
    2011).
        \24\ NLRA Sec.  9(b), 29 U.S.C. Sec.  159(b) (emphasis added).
        \25\ NLRA Sec.  9(a), 29 U.S.C. Sec.  159(a).
        \26\ An employer's obligation to bargain under Section 8(a)(5)
    makes it unlawful for the employer to engage in individual bargaining
    or direct dealing with employees regarding wages, hours, and other
    terms and conditions of employment and to implement unilateral changes
    in mandatory bargaining subjects. See, e.g., Gen. Elec. Co., 150 NLRB
    192, 194 (1964), enforced, 418 F.2d 736 (2d Cir. 1969), cert. denied,
    397 U.S. 965 (1970); NLRB v. Katz, 369 U.S. 736, 743 (1962).
        \27\ See, e.g., Midwestern Instruments, Inc., 133 NLRB 1132 (1961).
        \28\ See, e.g., NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333
    (1938); The Laidlaw Corp., 171 NLRB 1366 (1968), enforced, 414 F.2d 99
    (7th Cir. 1969), cert. denied, 397 U.S. 920 (1970).
        \29\ See, e.g., Scofield v. NLRB, 394 U.S. 423 (1969) (union could
    lawfully maintain and enforce rule providing for fines, suspensions or
    expulsion of union members who exceed work production ceilings
    established by the union).
        \30\ Id. The Proposed Rule would impose a similar ``available email
    addresses'' and ``available telephone numbers'' disclosure requirement
    on the ``lists filed with the regional director'' (but ``not served on
    any other party'') as part of the new Statement of Position that the
    Board would require from employers. 76 Fed. Reg. at 36,838, Proposed
    Sec.  102.63(b)(1)(iv).
        \31\ Id.
        \32\ Excelsior Underwear, Inc., 156 NLRB at 1236, 1241-42 (1966).
        \33\ NLRB v. S.W. Evans & Son, 181 F.2d 427, 429 (3d Cir. 1950).
        \34\ 315 NLRB 1320, 1321 (1995). See also Barre National, Inc., 316
    NLRB 877 (1995).
        \35\ Specialty Healthcare, 357 N.L.R.B No. 83, at *1.
        \36\ Id.
        \37\ Id. at 8.
        \38\ See, e.g., NLRB v. Action Automotive, Inc., 469 U.S. 490
    (1985).
        \39\ Specialty Healthcare, 357 N.L.R.B No. 83, at *16.
        \40\ Id. at *27 (Hayes, B., dissenting).
        \41\ A related problem with the Specialty Healthcare decision is
    the lack of clarity regarding how the decision interacts with
    preexisting ``industry-specific'' rules and standards which the Board
    majority stated it did not intend to change. Id. at *20.
        \42\ Prior to Specialty Healthcare, the Board looked with disfavor
    upon fractured units, i.e., a group that is ``too narrow in scope.''
    Colorado Nat'l Bank of Denver, 204 NLRB 243, 243 (1973). Where ``the
    petitioned-for employees do not share a sufficiently distinct community
    of interest from other employees to warrant a separate unit,'' the unit
    petitioned-for is inappropriate for collective bargaining purposes.''
    Seaboard Marine, Ltd., 327 NLRB 556, 556 (1999). The legislation
    essentially codifies this standard into the statute.
        \43\ The Board in accretion cases can add unrepresented employees
    to an existing bargaining unit, without any election, based on the
    overwhelming extent of employee interchange, working conditions, common
    management, functional integration, bargaining history, and other
    factors. See, e.g., Safeway Stores, Inc., 256 NLRB 918 (1981); United
    Parcel Service, 325 NLRB 37 (1997); NLRB v. Sweet Lumber Co., 515 F.2d
    785, 794 (10th Cir. 1975), cert. denied, 423 U.S. 986 (1975). That
    standard has no relevance to secret ballot elections.
                                     ______

        Chairman Kline. Thank you, sir.
        Mr. Sullivan, you are recognized for 5 minutes.

         STATEMENT OF ROBERT SULLIVAN, PRESIDENT, RG SULLIVAN
    CONSULTING, TESTIFYING ON BEHALF OF THE RETAIL INDUSTRY LEADERS
                              ASSOCIATION

        Mr. Sullivan. Chairman Kline, Ranking Member Miller,
    members of the committee, thank you for inviting he here this
    morning to testify. I am honored to be here.
        My name is Bob Sullivan. I am here to represent the Retail
    Industry Leaders Association. RELA is a trade association with
    over 200 members, whose combined annual revenue is over $1.5
    trillion. RELA's members provide millions of American jobs and
    operate over 100,000 stores, manufacturing facilities, and
    distribution centers.
        I have been a management-side labor and employment lawyer
    for almost 20 years--the first 10 years in private practice,
    and the next 7 years as vice president and associate general
    counsel with one of the nation's largest grocery wholesalers.
    My company ran distribution centers all around the United
    States, and retail grocery stores in the northeast and in the
    southeast.
        In my time as in-house counsel, I was responsible for the
    ongoing administration and negotiation of over 40 union
    contracts. I also handled numerous union organizing campaigns
    and representation elections. I handled such matters throughout
    my legal career.
        Since the beginning of 2009, I have operated RG Sullivan
    consulting, where I provide consulting services in the areas of
    labor and employee relations, legislative matters, and
    regulatory matters. The committee has asked me to testify on
    the Workplace Democracy and Fairness Act.
        I am here to testify with input from RELA's members and
    based on my own experiences. I would like to concentrate on the
    practical aspects of the board's decision in Specialty
    Healthcare. The greatest concern for retailers and for other
    employers is that under Specialty Healthcare micro unions will
    be organized.
        And what I mean by that is that unions will organize
    employees in single departments within organizations, or
    employees on a single shift, but perhaps not on other shifts.
    This will represent a big problem for retailers and other
    employers. Retail is a fast-paced business. Volume changes,
    particularly over the holidays where it changes immensely,
    there are late loads for many different reasons.
        The key to handling these issues is flexibility. A typical
    retailer has five, to 20 or more departments. To respond to
    challenges, they draw from employees in many different
    departments to go where they are needed to solve problems. They
    change schedules, if necessary. They draw on supervisors.
        All of these things would be problematic with separately-
    organized departments. Having employees move between
    departments is also very beneficial for the employees. They
    learn more about different parts of the company, they earn more
    by being able to cover shifts in other departments, and they
    open up opportunities for advancement. Because by learning more
    about the business, they are able to progress in a company if
    they choose to do that.
        RELA's membership has many executives who started their
    careers on the floor of a retail establishment. They have
    progressed because of the breadth of their knowledge. And they
    are disturbed that under Specialty Healthcare the opportunities
    available to them would be denied by employees who would not be
    able to learn the full extent of the business.
        Customers are also better served when employees know all
    departments under the roof of a store, and are able to respond
    to their needs in any department without fear of violating
    rules. All of these things would be compromised by Specialty
    Healthcare and separately organized departments.
        The Workplace Democracy and Fairness Act can fix the
    problem by restoring the rules that existed before Specialty
    Healthcare. This will bring businesses back to focusing on
    growing their businesses and creating jobs. That concludes my
    opening statement, or I should say my testimony. Old habits die
    hard.
        I would be glad to take questions at the appropriate time.
    Thank you.
        [The statement of Mr. Sullivan follows:]

           Prepared Statement of Robert G. Sullivan, on Behalf of the
                   Retail Industry Leaders Association (RILA)

        Chairman Kline, Ranking Member Miller, and Members of the
    Committee, thank you for your invitation to testify at this hearing. I
    am honored to be here today.
        My name is Bob Sullivan. I am here representing the Retail Industry
    Leaders Association (RILA). RILA is the trade association of the
    world's largest and most innovative retail companies. RILA promotes
    consumer choice and economic freedom through public policy and industry
    operational excellence. Its members include more than 200 retailers,
    product manufacturers and service suppliers, which together account for
    more than $1.5 trillion in annual sales, millions of American jobs and
    operate more than 100,000 stores, manufacturing facilities and
    distribution centers domestically and abroad.
        By way of background, I have been a management-side labor and
    employment lawyer for nearly twenty years. For the first ten years of
    my career, I practiced at two separate law firms in Providence, Rhode
    Island, where I represented a wide range of public and private sector
    employers in matters that included collective bargaining, union
    organizing and National Labor Relations Board (NLRB or Board)
    elections, and a wide range of labor matters before the NLRB, state
    labor boards and the courts.
        From 2002 through 2009, I served as Vice President and Associate
    General Counsel for Labor and Employment with one of the country's
    largest grocery wholesalers with warehouses throughout the country, as
    well as affiliated companies that operated retail grocery chains in the
    Northeast and Southeast United States. As an in-house lawyer, I was
    responsible for all aspects of labor and employee relations, including
    the negotiation and administration of over forty union contracts and
    the handling of numerous organizing campaigns and union elections.
        Since 2009 I have operated RG Sullivan Consulting, LLC, a firm that
    provides consulting and training services in the areas of labor and
    employee relations, litigation, legislative and regulatory matters.\1\
        The Committee has asked me to testify on the Workforce Democracy
    and Fairness Act, which would amend the National Labor Relations Act
    (NLRA) to effectively overrule the NLRB's recent decision in Specialty
    Healthcare,\2\ and to address issues raised in the Board's June 22
    proposed rulemaking, in which the Board proposes to radically overhaul
    union election procedures and force elections in as little as ten days
    after the filing of a representation petition.\3\
        I have the benefit of input from RILA's membership as well as my
    own experience. With the Committee's indulgence, I would like to focus
    on practical concerns associated with the Board's recent actions and
    the need for legislative action to protect the secret ballot election
    and the election process itself. The changes in bargaining unit
    determinations under Specialty Healthcare, if allowed to stand, and the
    proposed election rule change, if implemented, would impose severe
    administrative burdens on employers; lead to operational problems
    caused by fractured bargaining units; be detrimental to employee
    interests; and, for retailers, ultimately result in poor customer
    service.
     Micro Unions
        Specialty Healthcare dealt with a nursing home and a union's
    petition to represent certified nursing assistants as a discrete group,
    versus a larger unit proposed by the employer that would have included
    other non-professional employees. The Board ruled in favor of the
    union's proposed unit, and cast its ruling broadly. Under the rule
    announced in the case, a party seeking to expand a proposed unit in any
    industry must now show that the employees it wants included in the unit
    have an ``overwhelming'' community of interest with the employees in
    the proposed unit.\4\
        The most striking negative effect of Specialty Healthcare is the
    extent to which it allows for what many have termed ``micro unions,''
    or bargaining units composed of small groups of employees who formerly
    would have been found to have a sufficient community of interest with
    other employees to require that a proposed unit include the larger
    group (these micro-unions also have been referred to over the years as
    fractured units). This represents a drastic change to existing law, as
    recently discussed in the Board's August 27, 2010 decision in Wheeling
    Island Gaming, where the majority applied the community of interest
    standard--without the ``overwhelming'' component--and then stated that
    ``[o]ur inquiry--though perhaps not articulated in every case--
    necessarily proceeds to a further determination whether the interests
    of the group sought are sufficiently distinct from those of other
    employees to warrant the establishment of a separate unit.''
        While Specialty Healthcare involved a nursing home, the impact of
    the case is much broader, including a significant negative impact on
    the retail industry. I'd like to discuss some of these concerns.
        Under Specialty Healthcare, organizers can isolate small groups of
    employees where they have support. As the courts have acknowledged,
    unions will propose the group they have organized.\6\ If organizers
    have support from employees working in just one department, for
    example, accessories, they can seek to represent only clerks in that
    department. As Member Hayes noted in his dissent in Specialty
    Healthcare, the ruling ``will in most instances encourage union
    organizing in units as small as possible. * * *'' \7\
        When retail settings are unionized, they most often have what is
    referred to as ``wall-to-wall'' bargaining units, where one unit
    includes essentially all union-eligible employees (that is, excluding
    supervisors and management). In many cases, a wall-to-wall unit is the
    only appropriate one given the commonality of interests within a single
    retail location and the frequency of staffing across departments.
        When all workers in a retail establishment are in the same unit,
    covered by the same contract, there are mechanisms for cross-training,
    for covering absences between departments or in nearby stores--in other
    words, for employees to expand their horizons, earn extra money by
    picking up additional shifts--and for continuity of operations and
    enhanced customer service. The employer and union need to administer
    and negotiate just one contract, minimizing confusion, administrative
    burden and usually limiting negotiations to once every few years.
        These issues are particularly important in retail. Retailers
    encourage employees to learn about their business by working in
    different departments. They recognize the value to employees and
    customers alike when a customer can ask almost any store employee for
    help, and get effective assistance throughout the store. Employees also
    appreciate the variety and in the present economy many are looking for
    additional shifts, which are more available with free movement between
    departments.
        Among the executive ranks of RILA's members are many who started
    their careers working on the floor of a store. They are gravely
    concerned that micro-unions would prevent employees from developing
    their knowledge base and advancing their careers, allowing for better
    employee retention and a better connection between senior management
    and the employees in their stores.
        Retailers typically have from five to over twenty departments. With
    the potential for each department, or each shift, to become a separate
    bargaining unit, managing the store would become a nightmare. Employees
    themselves would lose the opportunity to cover for absent workers and
    to learn about other departments, making advancement into management
    much less likely. Employees in smaller stores tend to move around a
    great deal, and drawing lines between departments would impact both
    customers and employees even more acutely there than in larger
    operations.
        Worse yet, while my experience includes many responsible, customer-
    oriented union officials and employees, separately represented
    departments would inevitably lead to at least some degree of ``not my
    job'' responses to customer requests. Obviously, such customer
    relations would be detrimental to business, which in turn would be
    detrimental to all employees of the business.
        Many RILA members run their own distribution centers and are quite
    concerned that having small groups of warehouse workers organized would
    prevent them from moving product in and out efficiently. They use the
    term ``just in time product'' to describe the fast pace and tight
    delivery windows common across retail operations. The issue is
    especially crucial around the holidays when retail business surges.
        In a distribution center, if receiving is disrupted, product can
    build up on the dock before being stored in the racks. This is known as
    being ``in default,'' and the effect is to back up inbound trucks,
    which miss their scheduled drop-offs times, triggering a succession of
    back-ups in the supply chain.
        In stores, shelves are generally replenished overnight. When
    deliveries to the store are late, or when store personnel are unable to
    get product on the shelves in time, the impact goes straight to the
    customer, who may be greeted by pallets on the floor or products
    missing from the shelves. And I'm sure that although we have all seen
    Halloween decorations going up in stores, most of us probably haven't
    thought about what has to be done Halloween night so that customers
    walk into a transformed store the next day.
        On both the distribution and retail sides, the answer to seamlessly
    keeping product on the shelves is meeting schedules and, in times of
    heavy volume or late deliveries, the ability to have employees pitch in
    on whatever needs to be done, including drawing across departments and
    shifting schedules. Micro unions would be an impediment to responding
    to changing needs, an impediment that would be felt most during the
    holidays.
        With multiple bargaining units and multiple unions, contract
    negotiations themselves carry a significantly higher risk of a strike
    disrupting operations and hurting customers. With multiple unions and
    bargaining units in the same facility, it is possible to reach
    agreement with all but one bargaining unit, only to have the last group
    go on strike and shut down the entire operation.
        Representation by different unions in the same setting can also
    have adverse effects on employee morale and job satisfaction. Two
    similar groups represented by different unions might not only end up
    with different pay scales, they would quite likely have different
    health and retirement plans. A union representing back room workers
    might have a high-end health plan and put less emphasis on retirement.
    A union representing greeters or cashiers might have an opposite
    approach. Further, contracts negotiated in different economic climates
    may be more or less generous than contracts negotiated at different
    times. The result can be employees unhappy with some aspect of their
    benefits who feel slighted and resentful. The team atmosphere that most
    employers foster and most employees appreciate would suffer, and
    customers notice unhappy employees.
        Finally, at a time of universal discussion about the need to grow
    our economy, we look for expansion by our successful businesses, and
    opportunities to help ones that are struggling. Specialty Healthcare is
    a clear disincentive to both. At a minimum, healthy companies will wait
    to see what effects develop in their existing operations before
    investing in expansion--given the limited avenues of appeal for the
    Specialty Healthcare ruling this could take years.\8\ Struggling
    companies will not fare well with small groups of employees being
    organized, making them less likely to succeed and less attractive
    prospects for takeover. The end result will be fewer jobs.
     Proposed Election Rule Changes
        In addition to addressing the problems created by Specialty
    Healthcare, the Workforce Democracy and Fairness Act would prevent the
    NLRB from drastically changing union election rules by regulation in
    ways that would shift the Board away from its historic position of
    neutrality. The June 22 Notice of Proposed Rulemaking would bring a
    vast number of changes to an election system that not only has worked
    well for decades, but already results in union wins in nearly seventy
    percent of elections.\9\
        In the interest of brevity and my intention to focus on practical
    matters, as well as the fact that others are here to discuss the
    proposed rulemaking in more detail, I will limit my comments to the
    effects on employees, and to the considerable burdens placed on
    employers by the proposed changes to what they would be required to
    accomplish in just the first week after the filing of a representation
    petition and the unnecessary increase in litigation this change will
    bring.
        Under current practice, when a union files a petition, the Board
    serves it on an employer, along with a questionnaire about the
    employer's commerce information (relevant to the Board's jurisdiction),
    a request for a list of names and classifications for the employees
    sought to be represented, a reference to a hearing which may not have
    an actual scheduled date, and a request for the employer to comment on
    the appropriateness of the proposed unit.
        As even the Board's majority as acknowledged in the Notice of
    Proposed Rulemaking,\10\ the vast majority of representation cases
    proceed to election under some form of agreement rather than after a
    hearing. This process is helped by the function of Board Agents, who
    are charged with the task of determining whether there is a question
    concerning representation, and if there is a hearing, developing a
    complete record using a fact-finding, non-adversarial process.\11\ In
    my experience, Board Agents are not only expert in this process, but
    efficient, thorough, and of great value in helping the parties to a
    representation case understand the issues and reach agreement if
    possible rather than proceeding to hearing. While Board Agents are not
    advocates for employers and therefore no substitute for counsel, the
    Board's proposed rule changes would remove them from the process and
    result in far fewer elections by agreement.
        Despite the fact that this stage of the process lacks hard-and-fast
    time limits and is left in large part to the discretion of the Board's
    Regional Directors, on average elections take place in barely over
    thirty days from the filing of a petition.\12\ This time frame affords
    employers not only the time to comply with the Board's election
    procedures, it allows a reasonable period of time for communication
    with employees. As an election approaches, employees often have
    questions for the employer about everything from current benefits to
    what happens on election day.
        The law specifically protects an employer's right to engage in non-
    threatening, non-coercive discussion with employees about bargaining
    issues.\13\ The Supreme Court has acknowledged the desirable
    Congressional policy of ``favoring uninhibited, robust, and wide-open
    debate'' on matters relating to unionization, so long as that does not
    include unlawful speech or conduct.\14\
        The Board's proposed rule changes would require elections in as
    little as ten days,\15\ during which, as explained below, the employer
    would face a monumental task in trying to provide a greatly increased
    volume of information to the Board, at the risk of permanent forfeiture
    of its right to challenge the proposed bargaining unit. With such a
    short time table, employers will have difficulty getting adequate legal
    advice, especially about how to discuss the issues with employees.
        The result for employees would be two-fold: Far less ability to
    learn about the issues and hear the employer's perspective; and a
    higher likelihood that a well-meaning but unprepared employer would
    inadvertently violate employee rights by making improper statements.
        As to the process itself, the Board's proposed rule changes would
    do two things that are momentous, one more obvious than the other.
    First and most obviously, a hearing would be scheduled for seven days
    after the filing of a petition, and employers would be required to
    provide far more comprehensive, detailed, and crucially important
    information within that time frame than ever before.
        In seven days, an employer would need to file a Statement of
    Position, in which it must state whether it agrees with the proposed
    unit. If it does not, the employer would have to provide in extreme
    detail information about its position on all employees it contends
    should not be included, and on any it contends should be included,
    including not only name and classification, but also work location and
    shift, phone numbers, e-mail addresses and home addresses, for all
    employees in the unit that it believed appropriate.\16\ The Statement
    of Position must include the employer's position in detail on ``type,
    dates, times, and location of the election and the eligibility period;
    and describe all other issues the employer intends to raise at the
    hearing.'' \17\ An employer that fails to provide the required
    information in a timely fashion (i.e., within seven days) would be
    precluded from contesting unit appropriateness, presenting evidence, or
    even cross-examining witnesses.\18\
        Requiring such comprehensive and detailed information, including
    essentially all legal and factual challenges to the proposed unit and
    in favor of an alternate unit, under threat of complete forfeiture of
    the right to challenge the proposed unit, stands in stark contrast to
    the current burden an employer faces, which is to provide relatively
    easily obtainable basic information, without the need to formulate a
    complete factual and legal strategy within seven days (during which
    most, especially small, employers will have to find and retain
    experienced labor counsel).
        The less obvious of the proposed changes--but perhaps far more
    significant for small employers--is the fact that the Board wants to
    remove its Board Agents from the role of developing a record on the
    representation issue.
        The proposed rules will wreak similar havoc with small and large
    employers, for reasons that differ in direct proportion to their size.
        Small employers in many cases may be able to access factual
    information about a proposed bargaining unit better than larger firms,
    but they will have no in-house experts to help them evaluate the facts
    in light of legal issues, and almost certainly no relationship with an
    outside labor specialist who might have some hope of figuring out the
    legal and factual issues and helping to prepare the required Statement
    of Position within seven days. With Board Agents no longer developing a
    record, up against professional union organizers, and virtually on
    their own, small employers will not stand a chance of complying with
    the Board's requirements, let alone communicating effectively and
    lawfully with a group of employees about to make perhaps the most
    important decision of their working lives, with little or no input from
    their employers, and most likely only a vague understanding of who
    would be in their own bargaining unit.
        Large employers will face a different array of intractable
    challenges. They will have the advantage of either in-house labor
    staff, or relationships with outside labor experts, or both. But while
    their size and resources will help in guidance, they will hinder fact-
    finding. Labor experts in a large corporate environment will generally
    be found in a central headquarters. Often they will oversee matters in
    many subsidiaries and affiliates. Faced with a petition seeking to
    organize a group of employees, their first task will be to examine the
    correct employing entity, then determine the organizational structure
    and find the right management officials with first-hand knowledge about
    the proposed unit, and then consider whether there are other employees
    who should be included in the unit. With more capability but vastly
    more complicated facts, large employers would be hard pressed to meet
    the proposed filing deadline without missing factual and legal issues.
    With greater resources than small employers, and given the significant
    burdens imposed by the Board's changes, they would also be quite likely
    to litigate more representation cases.
        Perhaps the most striking aspect of the Board's draconian proposal
    to preclude employers from raising any issue not included in the
    Statement of Position would be its effect on the employees themselves.
    It is easy to lose sight of the fact that the crucial phrase
    ``community of interest'' relates to the interests of the employees. It
    is their livelihoods that are at stake. With today's non-adversarial
    fact determination, the process moves forward toward either an
    agreement or a hearing based on the facts bearing on unit
    appropriateness. The Board's proposal shows a lack of concern for
    accurate facts, and intent to let arbitrary procedural issues drive
    outcomes. This would do a disservice to the employees whose rights the
    Board is charged with guarding.
     Overall Effects
        In order for our economy to function, recover, and provide more
    jobs, retailers need to sell, builders need to build, and manufacturers
    need to manufacture. The NLRB's recent actions and proposed rulemaking
    will have them dealing with multiple small-group organizing campaigns,
    litigation, and fragmented workplaces with greatly reduced flexibility.
    At a time when President Obama has stated that his administration is
    ``reviewing government regulations so that we can fix any rules in
    place that are an unnecessary burden on businesses,'' \19\ the Board is
    doing the exact opposite. The Workforce Democracy and Fairness Act will
    bring reason back to the representation process, put the NLRB back on
    the course that the President has laid out, and let employers get back
    to business. More importantly, it will remove the most glaring of the
    Board's recent decisional and regulatory threats to economic progress,
    and bring back a climate where business leaders can focus on growing
    the economy and creating jobs.
     Conclusion
        I have only scratched the surface of the issues raised by the
    Board's recent decisions and proposed rulemaking. Hopefully, though, I
    have explained some of the more significant practical concerns with the
    Board's recent actions, particularly as they relate to retailers. Thank
    you again for inviting me to testify. I would be happy to answer any
    questions from Members of the Committee related to my testimony.

                                    ENDNOTES

        \1\ My testimony here today is on behalf of RILA and reflects my
    own personal experience. My views should not be attributed to my
    pervious employers or current or prior clients.
        \2\ Specialty Healthcare and Rehabilitation Center of Mobile, 357
    NLRB No. 83 (August 26, 2011).
        \3\ Representation--Case Procedures, 76 FR 36,812 (June 22, 2011);
    see dissent of Member Hayes, 76 FR at 36,831.
        \4\ Specialty Healthcare, 357 NLRB at 12.
        \5\ Wheeling Island Gaming, 355 NLRB No. 127, n.2. (August 27,
    2010).
        \6\ Laidlaw Waste Systems, Inc. v. NLRB934 F.2d 898, 900 (7th Cir.
    1991). Despite the majority's views in Specialty Healthcare, the ruling
    improperly imposes such a high standard on a party--usually the
    employer--opposing a proposed unit (requiring an ``overwhelming''
    community of interest between the proposed unit and other employees
    sought to be added to it) that it is virtually impossible to alter the
    proposed unit, thus violating section 9(c)(5) of the act, which
    provides that in determining unit appropriateness ``the extent to which
    the employees have organized shall not be controlling.'' Specialty
    Healthcare, 357 NLRB at 9; 29 U.S.C. Sec. 159(c)(5).
        \7\ Specialty Healthcare, 357 NLRB at 19.
        \8\ As a representation case rather than an unfair labor practice
    case, Specialty Healthcare is not subject to direct judicial review.
    Only ``final orders'' of the Board may be appealed directly, and the
    courts long ago determined that decisions in representation cases are
    not considered final orders. 29 U.S.C. Sec.  159(f); see American Fed'n
    of Labor v. NLRB, 308 U.S. 401 (1940). To appeal, the employer must
    refuse to bargain, go through unfair labor practice proceedings in
    which the employer can challenge the findings in the representation
    process. If the employer loses before the Board, the resulting decision
    is a final order and may be appealed in court. 29 U.S.C. Sec.  159(f).
        \9\ Unions won 67.6% of elections in calendar year 2010. ``Number
    of NLRB Elections Held in 2010 Increased Substantially from Previous
    Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 May 3, 2011.
        \10\ Representation--Case Procedures, 76 FR 36,812 (June 22, 2011).
        \11\ See Mariah, Inc. 322 NLRB 586 n.1 (1996).
        \12\ 76 FR at 36,831.
        \13\ Section 8(c) of the National Labor Relations Act provides:
    ``The expressing of any views, argument, or opinion, or the
    dissemination thereof, whether in written, printed, graphic, or visual
    form, shall not constitute or be evidence of an unfair labor practice
    under any of the provisions of this Act [subchapter], if such
    expression contains no threat of reprisal or force or promise of
    benefit.'' 29 USC Sec. 158 (c).
        \14\ Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008).
        \15\ 76 FR at 36,831.
        \16\ 76 FR at 36,838.
        \17\ 76 FR at 36,838.
        \18\ 76 FR at 36,839.
        \19\ June 29, 2011 press conference.
                                     ______

        Chairman Kline. Thank you, sir.
        Mr. Hunter, you are recognized.

                STATEMENT OF MICHAEL J. HUNTER, PARTNER,
               HUNTER, CARNAHAN, SHOUB, BYARD & HARSHMAN

        Mr. Hunter. Thank you. Chairman Kline, Ranking Member
    Miller, and members of the committee, I thank you, as well, for
    the opportunity to appear here. I am honored to be here.
        My perspective I bring to this is that I am a union-side
    lawyer based in Columbus, Ohio, and I have been in the labor
    movement for over 40 years. This bill that is before you is
    entitled the Workplace Democracy and Fairness Act.
        In my judgment, the proposed legislation promotes neither
    fairness nor democracy, and is not aimed at helping the
    workforce, but those who, without the intervention of labor
    unions and legislation that supports workers' rights, would be
    subject to the unfettered control of corporations.
        The bill proposes to amend the National Labor Relations Act
    by adding four broad mandates. One, the total uprooting of the
    current methodology for determining permissible bargaining
    units. Two, the timing, and a vastly increased scope, of a
    representation hearing. Three, the timing of an election, and a
    requirement that every conceivable issue be resolved on board
    review before an election can even be scheduled.
        And four, the timing content and provision to a petitioning
    union of lists of eligible employees so there can be some
    fairness in the ability to contact people. As the Supreme Court
    had noted in regard to bargaining unit determination--and I
    believe that Mr. Cohen indicated this, as well, in his opening
    testimony--that for years it has been the case that a union is
    not required to seek the ``most'' appropriate bargaining unit,
    if such a thing even exists, but rather ``an'' appropriate
    unit.
        As the Supreme Court noted in regard to section 9-A of the
    act, this section read in light of the policy of the act
    implies that the initiative in selecting an appropriate unit
    resides with the employees. Moreover, the language suggests
    that employees may seek to organize a unit that is appropriate,
    not necessarily the single most appropriate unit.
        The legislation that is being proposed here would result in
    the wholesale disruption of 75 years of board experience in
    configuring bargaining units. And the purported reason for that
    is a single case changing an arcane bargaining unit standard in
    a discrete industry that would have no practical effect
    whatsoever in greater industry.
        It would eviscerate the board's Healthcare bargaining units
    that currently exist, and that the parties, both employers and
    employees, have relied on for over 20 years. The timing and
    scope of a representation hearing, I would just hit on the
    scope of the hearing. The scope of the hearing would now
    include any issue which may reasonably be expected to impact on
    the election's outcome.
        Any issue that could affect the election's outcome could be
    litigated. And beyond that, parties could raise, independently,
    any issue whatsoever that they wished. And yet the prefatory
    language of that section states that it should be a non-
    adversarial hearing, subjecting that hearing in which anything
    could be litigated to serious constitutional infirmities.
        The bill also requires that review be granted as a matter
    of right, and that no election could be mandated until review
    was granted. And takes away what has already been provided to
    unions, in regard to employee contact information, for 50
    years.
        In conclusion, the Workplace Democracy and Fairness Act is
    anti-democratic and grossly unfair. It is an attack on workers'
    rights and should be rejected in its entirety. Thank you.
        [The statement of Mr. Hunter follows:]

               Prepared Statement of Michael J. Hunter, Partner,
                   Hunter, Carnahan, Shoub, Byard & Harshman

        Chairman Kline, Ranking Member Miller and Members of the Committee,
    thank you for your invitation to participate in this hearing. I am
    honored to appear before you today. My name is Michael Hunter. I am a
    partner in the Columbus, Ohio based law firm of Hunter, Carnahan,
    Shoub, Byard & Harshman. My law practice consists almost exclusively in
    representing unions and workers. A significant part of that
    representation involves representing unions assisting workers to gain
    collective bargaining rights through proceedings before the National
    Labor Relations Board and a number of its regions.
        I began practicing union side labor law after graduating from
    Capital University Law School in 1985. Prior to that time, I worked as
    a union organizer from 1977-1982. I first became a member of a union in
    1970. I participated in my first representation case hearing before the
    NLRB in 1978.
        H.R. 3094, the matter subject to today's hearing, is entitled the
    ``Workforce Democracy and Fairness Act.'' In my judgment, the proposed
    legislation promotes neither fairness nor democracy, and is aimed at
    aiding not the workforce but those who, without the presence of union
    representation, exercise largely unfettered control over it.
        The Bill proposes to amend the National Labor Relations Act by
    adding four broad mandates: 1) the total uprooting of the current
    methodology of determining the permissible composition of bargaining
    units; 2) the timing and scope of a representation hearing; 3) the
    timing of an election and the requirement that every conceivable issue
    be resolved before an election is held; and 4) the timing, content and
    provision to the petitioning union of lists of eligible voters through
    which workers have access to information about collective bargaining
    and union representation.
        The first proposal is apparently in reaction to a single Board
    decision that constitutes one of those periodic incremental adjustments
    to the methodology for determining bargaining units under the Act. The
    other three are in apparent reaction to proposed amendments to the
    Board's rules for which thousands of comments have been received, which
    have not been implemented, and for which there is no current
    information available as to when, in what form, or even whether such
    rules will be implemented.
    1. Bargaining Unit Determination
        As noted by the Supreme Court, when Congress enacted Section 9(a)
    of the Act, it granted workers the right to take the initiative in
    organizing themselves into a unit. It hardly promotes workforce
    ``democracy and fairness'' to take that right away from workers.
        In American Hospital Association v. NLRB, 499 US 606, 610 (1991),
    the Supreme Court, noted:
        Section 9(a) of the Act provides that the representative
    ``designated or selected for the purposes of collective bargaining by
    the majority of the employees in a unit appropriate for such purposes''
    shall be the exclusive bargaining representative for all the employees
    in that unit. Sec.  159(a). This section, read in light of the policy
    of the Act, implies that the initiative in selecting an appropriate
    unit resides with the employees. Moreover, the language suggests that
    employees may seek to organize ``a unit'' that is ``appropriate''--not
    necessarily the single most appropriate unit. (Emphasis in original).
        In addition to taking away this important worker right, the
    proposed Bill will result in the the wholesale disruption of 75 years
    of Board experience in configuring appropriate bargaining units. This
    all comes about in apparent response to the August 26, 2011 decision of
    the Board in Specialty Healthcare, 357 NLRB No. 83 (2011). The
    Specialty Healthcare decision involved whether non-acute healthcare
    facilities such as nursing homes, which are not subject to the
    bargaining unit rules adopted by the Board for acute-care facilities,
    should be subject to the same standards for evaluating appropriate
    bargaining units that apply to all other industries, or whether they
    should continue to be governed by an arcane and confusing ``empirical
    community of interest'' test that had been established by the Board for
    non-acute healthcare facilities in Park Manor Care Center, 305 NLRB 872
    (1991).
        In Specialty Healthcare, the Board overruled its 1991 Park Manor
    Care Center standard and decided to apply to non-acute healthcare
    facilities the same community of interest standards that it applies in
    determining the appropriateness of bargaining units in other
    industries. In the Specialty Healthcare case, the Board found that a
    unit of certified nursing assistants (CNA's) constituted an appropriate
    unit. It noted that once it is established that a petitioned-for unit
    consists of a readily identifiable group of employees who share a
    community of interest, the burden shifts to the employer to demonstrate
    that excluded employees that it claims should be included share an
    overwhelming community of interest with the employees for whom a union
    has petitioned. This analytical framework for ascertaining an
    appropriate unit is the same as that applied by the Board in a non-
    healthcare context and which was endorsed by the D.C. Circuit in Blue
    Man Vegas v. NLRB, 529 F3d 417 (D.C.Cir. 2008).
        In apparent response to this adjustment eliminating an arcane test
    that applied to a discreet portion of the employer community, and
    moving it into the mainstream, the Bill proposes to turn on its ear 75
    years of experience and stability in the determination of bargaining
    units.
        In the first instance, the Bill proposes to eliminate the following
    language which has been included in subsection 9(b) of the Act, 29 USC
    Sec.  159(b) since its inception in 1935:
        The Board shall decide in each case whether, in order to assure to
    employees the fullest freedom in exercising the rights guaranteed by
    this Act the unit appropriate for the purposes of collective bargaining
    shall be the employer unit, craft unit, plant unit, or subdivision
    thereof: (Emphasis added).\1\
        The Bill then goes on to mandate a set-in-stone, one size fits all
    test for determining whether employees in a proposed unit share a
    community of interest:
        In determining whether employees share a sufficient community of
    interest, the Board shall consider (1) similarity of wages, benefits,
    and working conditions; (2) similarity of skills and training (3)
    centrality of management and common supervision; (4) extent of
    interchange and frequency of contact between employees; (5) integration
    of the work flow and interrelationship of the production process; (6)
    the consistency of the unit with the employer's organizational
    structure; (7) similarity of job functions and work; and (8) the
    bargaining history in the particular unit and the industry. (Bill, p.2.
    lines 10-20).
        While items listed in the above formulation have certainly been
    among the useful tools utilized in evaluating the appropriateness of
    bargaining units, it is unclear whether this precise formulation has
    even been used in determining a community of interest.
        Limiting the analytical tools that can be used in evaluating an
    appropriate bargaining unit makes no more sense than establishing a set
    number of tools that can be used in approaching any job. One does not
    change a tire with a screwdriver or adjust a carburetor with a shovel.
    As noted in the Developing Labor Law, (5th Ed. BNA), a compendium
    developed by the ABA's Committee on the Development of Labor Law:
        Community of interest is not susceptible to precise definition or
    to mechanical application. As illustrated by the cases discussed
    throughout this chapter, the ultimate determination much more often
    depends on detailed factual analysis on a case-by-case basis than on
    the application of rules of law.
        Id. at 643-644. Numerous other analytical tools have been used in
    analyzing the appropriateness of a bargaining unit depending on the
    nature of the industry. A few examples include similarities or
    differences in product,\2\ geographical proximity,\3\ desires of
    employees,\4\ area bargaining patterns and practices,\5\ and, while not
    by itself controlling, extent of organization.\6\
        Adoption of the unit determination formula set forth in the Bill
    would wreak havoc on labor relations stability. For example, for twenty
    years, employers and unions in the acute care hospital industry have
    relied upon the certainty that organizing in that industry would
    involve the units established by the rulemaking process and set out at
    Section 103.30 of the Board's Rules.\7\ It is clear, however, that
    those Rules were not adopted pursuant to the standard that would be
    dictated by the Bill. The standards and considerations taken into
    account in promulgating the Rule are set out in 53 FR No. 170, at
    33900-33935.
        As those Rules were not adopted pursuant to the standard required
    by the Bill, its enactment into law would again require a case by case
    adjudication from scratch as to the appropriateness of any new unit in
    the acute care hospital industry, depriving the parties of the
    stability, certainty and predictability that they have enjoyed for
    twenty years.
        While the Bill would leave intact the proviso to Section 9(b) of
    the Act that indicates that a prior determination that a larger unit
    was appropriate is not in itself a ground for deciding that a craft
    unit is inappropriate, its dictates as to the factors to be taken into
    consideration in determining a bargaining unit will deprive the Board
    of the analytical tools that it has used for over 40 years in
    evaluating the appropriateness of craft severance.\8\
        The Bill continues with provisions that result, as a practical
    matter, in a dictate that there can be only one appropriate unit for
    any category of employees. The Bill states, commencing at line 21 of
    page 2, that:
        To avoid the proliferation of fragmentation of bargaining units,
    employees shall not be excluded from the unit unless the interests of
    the group sought are sufficiently distinct from those of other
    employees to warrant the establishment of a separate unit.
        Avoidance of ``proliferation'' of bargaining units has never been a
    factor in the general field of NLRB jurisprudence. In the passage of
    the 1974 healthcare amendments to the Act, reference was made in the
    House and Senate Reports regarding due consideration of preventing the
    proliferation of bargaining units in the health care industry.\9\ Two
    circuits, the Ninth and the Tenth, found that the legislative history
    of the health care amendments required application of a ``disparity of
    interest'' analysis of units in the acute health care industry,\10\
    while other circuits specifically rejected this test.\11\ Any
    application of that test was superseded by the promulgation of the
    Board's acute care bargaining unit rules and their subsequent approval
    by the Supreme Court in American Hospital Association v. NLRB, supra.
    The Bill would now enshrine a test required by only two federal Circuit
    courts 20 years ago for the acute-care hospital industry into the
    statute and apply it to all industries.
        It then goes a step further by permitting an employer to add to a
    proposed bargaining unit any category of employees who share a
    community of interest with the unit proposed by a petitioning union.
    Beginning at line 2 of page 3, the Bill provides that:
        Whether additional employees should be included in a proposed unit
    shall be based on whether such additional employees and proposed unit
    members share a sufficient community of interest.
        This runs contrary to 75 years of NLRB jurisprudence, and
    essentially mandates that there can be only one appropriate bargaining
    unit for any category of employee.
        Again, as emphasized by the Supreme Court in American Hospital
    Association v. NLRB, supra:
        [Section 9(a) of the Act] implies that the initiative in selecting
    an appropriate unit resides with the employees. Moreover, the language
    suggests that employees may seek to organize ``a unit'' that is
    ``appropriate''--not necessarily the single most appropriate unit.
        Id. at 610. (Bolded emphasis added; italics in original). It has
    always been the case that in a petition filed with the NLRB on behalf
    of workers is not required to seek representation in the most
    comprehensive appropriate grouping unless an appropriate unit
    compatible with the one requested does not exist.\12\
        As emphasized by the Supreme Court, when Congress enacted Section
    9(a) of the Act, it granted workers the right to take the initiative in
    organizing themselves into a unit. It hardly promotes workforce
    ``democracy and fairness'' to take that initiative away from workers.
    It is respectfully submitted that the Bill's proposed changes to
    subsection 9(b) of the Act should be rejected.
    2. Timing and Scope of Representation Hearings
        The Bill's provisions in regard to the timing and scope of
    representation hearings are in apparent reaction to the Board's Notice
    of Proposed Rulemaking contained at 76 FR No. 20 at 36812 et., seq.
        The proposed rule amendments would provide at Rule 102.63(a) that a
    regional director would ordinarily, absent special circumstances, set a
    representation hearing to commence seven days after the notice of
    hearing.\13\
        The comments to the proposed rule amendments note that this is
    already the current practice in some regions, and one which the Board
    wishes to make uniform. 76 F.R. No. 20 at 36821. Back in 1998 ``best
    practices'' provided for a hearing within ten to fourteen\14\ days.
    With modern access to relevant unit information through computers and
    with advances in communication technology, including electronic mail
    and overnight/express mail, it is not surprising that the Board, in
    many of its regions, has achieved hearings after seven days.
        It is in apparent reaction to the potential memorialization by rule
    of the seven day timeframe currently in effect in many regions that the
    Bill proposes to enshrine in the statute a requirement that a
    representation hearing may in no circumstances ``take place less than
    14 days after the filing of a petition.'' Bill, page 3, lines 14-16. It
    is respectfully submitted that this is the sort of matter that, under
    Section 6 of the Act, is appropriately addressed by Rule so that
    evolving circumstances and changes in the workplace and workforce can
    be examined and adapted to.
        The Board's proposed rule amendments propose a methodology for
    early and thorough identification of issues in representation case
    matters, and for devoting the resources of the Agency and the parties
    to those issues which are material and which are in dispute. Proposed
    Rules, Sections 102.63; 102.64. There are currently, as will be noted
    below, limitations on what can properly be presented in a
    representation hearing. In apparent reaction to the proposed rule
    amendments that would further promote issue-identification and avoid
    needless and costly proceedings while still promoting the development
    of a full record on all material issues, the Bill proposes the addition
    of the following language in subsection (c)(1) of the Act:
        An Appropriate hearing shall be one that is nonadversarial with the
    hearing officer charged, in collaboration with the parties, with the
    responsibility of identifying any pre-election issues and thereafter
    making a full record thereon. Pre-election issues shall include, in
    addition to unit appropriateness, the Board's jurisdiction and any
    other issue the resolution of which may make an election unnecessary or
    which may reasonably be expected to impact the election's outcome.
    Parties may raise independently any issue or assert any position at any
    time prior to the close of the hearing. (Bill, page 3 line 18 through
    page 4 line 5).
        This language would allow virtually any issue to be litigated in a
    representation case proceeding. Hearings could literally be marathon
    endeavors, with randomly changing positions, new issues inserted at
    various stages along the way, and no concern for the resulting
    extraordinary costs to the Agency.
        It should be noted that under the current state of the law, there
    are limitations upon what may be introduced at a representation case
    hearing. Thus, for example, in Bennett Industries, 313 NLRB 1363 (1994)
    a unanimous Board found that a party that refuses to take a position
    regarding the supervisory status of employees or employee
    classifications is precluded from presenting testimony about the
    matter.
        It has always been the case that unfair labor practice issues may
    not be litigated in a representation case hearing.\15\ The same is the
    case with a petitioner's showing of interest which is considered
    confidential.\16\ When parties are free to raise not only any issue
    which may affect an election's outcome, but to raise any issue or
    assert any position in a non-adversarial proceeding, such a proceeding
    is subject to precisely the type of constitutional infirmity that was
    found not to exist when the hearing is limited to determining whether a
    question of representation exists.\17\ Allowing introduction in a
    representation case proceeding of evidence regarding any issue that
    could ``affect the outcome'' of any election would reduce the
    proceeding to a carnival atmosphere, and allowing parties to
    additionally introduce anything else whatsoever would reduce to the
    hearing to absurdity.
        As a consequence, it is respectfully submitted that the Bill's
    proposed strictures regarding the time and scope of a representation
    case hearing should be rejected.
    3. Timing of Elections
        In apparent response to the Board's proposed rule that would
    eliminate the current discretionary pre-election review by the
    Board\18\ the Bill proposes, at lines 7 and 8 of page 4, to make pre-
    election review mandatory and to require that no election be held until
    such a review is made.
        Section 3(b) of the Act authorizes the Board to delegate to the
    regional directors its power under Section 9 to determine appropriate
    units, to hold hearings, to determine if a question of representation
    exists, and to direct an election. It provides that the Board may
    review any action of a regional director, but that such action, unless
    ordered by the Board, will not stay an action of the regional director.
    Since 1961, the Board's rules have made such review discretionary,\19\
    and that procedure was subsequently upheld by the Supreme Court.\20\
        The language proposed in lines 7-9 of page 4 of the Bill would
    result in the last sentence of subsection 9(c) (1) of the Act reading
    in pertinent part as follows:
        If the Board finds upon the record of such hearing and a review of
    post-hearing appeals that such a question of representation exists, it
    shall direct an election * * * (Emphasis added).
        The language that would be added by the Bill forbids a direction of
    election until a review is completed of post-hearing appeals. As a
    consequence, the language in Section 3(b) of the Act which provides
    that Board review of a regional director's actions does not act as a
    stay would become irrelevant to the timing of an election because,
    under the Bill, a direction of election cannot issue at all until a
    review has been made of any appeal.
        As a consequence, elections could be held up for years based upon
    the most frivolous appeal for review. Because the Board will lose its
    discretion and will be required to conduct a review in all cases, its
    processes would be even slower.
        Unlike the current process in which pre-election Board review is
    discretionary, and unlike the proposed rules under which Board review
    would consolidated into one post-election review process, the Bill
    would mandate pre-election Board in every case, regardless of
    relevance, materiality, or merit. The Board's caseload would
    dramatically increase and its timelines would correspondingly lengthen.
        The end result would be to deny to employees indefinitely the
    ``fairness and democracy'' they seek when attempting to organize. They
    would file a petition to have an election to choose whether to have
    union representation and watch their efforts evaporate in a morass of
    legalese and litigation.
        Lines 10 through 14 of page four of the Bill would mandate that no
    election could take place in less than 35 calendar days following the
    filing of a petition.
        This would apply even where the union and employer are willing to
    stipulate to an earlier date. Other than facilitating an employer in
    ramping up an anti-union campaign, it does not appear to have any
    meaningful purpose.
        It is respectfully submitted that these provisions of the Bill
    should be rejected.
    4. Lists of Eligible Voters
        The initial requirement of a list of eligible voters was
    established in 1966 through Board adjudication in Excelsior Underwear
    Inc.,\21\ where the Board established a prospective requirement that
    within seven days after direction of an election or approval of an
    election agreement, the employer must file with the Regional Director,
    ``an election eligibility list, containing the names and addresses of
    all the eligible voters.'' The Board, in Excelsior, recognized that
    rules governing elections cannot remain in stasis, but should change
    with times:
        The rules governing representation elections are not, however,
    ``fixed and immutable. They have been changed and refined, generally in
    the direction of higher standards.'' \22\
        Id. at 767. The Supreme Court upheld the authority of the Board to
    require such information, in NLRB v. Wyman Gordon Company, 394 US 759
    (1969). Therein, the Court noted:
        We have held in a number of cases that Congress granted the Board a
    wide discretion to ensure the fair and free choice of bargaining
    representatives. [citations omitted] The disclosure requirement
    furthers this objective by an informed employee electorate and by
    allowing unions the right of access to employees that management
    already possess. It is for the Board and not for this Court to weigh
    against this interest the asserted interest of employees in avoiding
    the problems that union solicitation may present.
        The same privacy and similar arguments as were presented over 50
    years ago are still being raised in response to the Board's proposed
    rule amendments. The proposed rules would change the procedures with
    respect to production of voter lists by requiring that the list contain
    available telephone numbers and e-mail addresses for each voter. 76
    Fed. Reg. at 36820, Sec.  102.67(j).
        In apparent response to the Board's proposed rule amendments; the
    Bill proposes, at lines 15 to 24 of page 4, to insert the following
    language into the statute:
        ``Not earlier than 7 days after final determination by the Board of
    the appropriate bargaining unit, the Board shall acquire from the
    employer a list of all eligible voters to be made available to all
    parties, which shall include the employee names, and one additional
    form of personal employee contact information (such as telephone
    number, email address or mailing address) chosen by the employee in
    writing.''
        This provision requires a giant leap backward from what has been
    the state of Board procedure for over 50 years. It provides that ``not
    earlier'' than seven days after a final determination of a bargaining
    unit by the Board, an employer will provide to the Board one form of
    employee contact authorized in writing by the employee.
        The Bill does not even require that this truncated information be
    in turn provided to a petitioning union. It requires that this
    information never be provided so long as there remains outstanding a
    question of the inclusion of even a single employee in a bargaining
    unit.
        Employers have access to all of this information with which to
    bombard employees with anti-union propaganda on top of their full-time,
    in-person access to employees in the worksite.
        There can be little argument that providing an effective means of
    communicating with workers would enable information-sharing and a more
    informed electorate. Yet, the Bill is aimed at less communication, and
    particularly at less worker-union communication. Workers are denied the
    ability to obtain information from the union while at work and the
    union has no independent means of learning workers' addresses, phone
    numbers or emails.
        It is also remarkably telling what the Bill does not mandate. It
    does require the ``contact information * * * chosen by the employee in
    writing'' be made private and remain confidential from their
    supervisors and employers. It does not provide employees with a means
    to limit communications from the employer. It does not protect
    employees from being required, under pain of discharge, from attending
    and listening to all manner of employer communications at any time
    during their workday. Almost 90% of companies in which workers want to
    form a union require workers to attend such captive audience
    meetings.\23\ Workers who presumably are being protected from union
    communications are still being forced to give attention to mandatory
    employer communications or be fired.
        The language of the Bill in this regard is not comprehensible in
    the context of workforce fairness and democracy.
    Conclusion
        It is respectfully submitted that the so-called ``Workplace
    Democracy and Fairness Act'' is anti-democratic and grossly unfair. It
    is another attack on workers' rights. It should be rejected in its
    entirety.

                                    ENDNOTES

        \1\ This analysis assumes that the drafters of the Bill considered
    the ``first sentence'' of 9(b) to end with the colon preceding its
    proviso, and does not intend to eliminate the proviso language.
        \2\ General Electric Co., 170 NLRB 1272 (1968); Bedford Shoe Co.,
    117 NLRB 259 (1957).
        \3\ Pacific Maritime Assn., 185 NLRB 780 (1970).
        \4\ NLRB v. Ideal Laundry & Dry Cleaning, 330 F2d. 712 (10th Cir.
    1964).
        \5\ RN Market, Inc., 190 NLRB 292 (1971).
        \6\ NLRB v. Metropolitan Life Ins. Co., 380 US. 438 (1965).
        \7\ The Board's authority to promulgate those rules was challenged
    and ultimately upheld in American Hospital Association, supra.
        \8\ Mallinckrodt Chemical Works, 162 NLRB 387 (1967).
        \9\ S. Rep. No. 766, 93rd Cong., 2d Sess. 5 (1974); H.R. Rep. No.
    1051, 93rd Cong., 2d Sess. 7 (1974).
        \10\ NLRB v. HMO International, 678 F2d 806 (9th Cir. 1982);
    Southwest Community Health Services v. NLRB, 726 F2d. 611 (10th Cir.
    1984).
        \11\ IBEW Local 474 v. NLRB, 814 F2d 697 (D.C. Cir. 1987).
        \12\ P. Ballantine & Sons, 141 NLRB 1103 (1963).
        \13\ Almost a decade ago, in Croft Metal, Inc., 337 NLRB 688, 688
    (2002), the Board held that a hearing should be conducted ``not less
    than 5 days'' after notice of the hearing ``absent unusual
    circumstances.''
        \14\ ``Representation Cases Best Practices Report,'' Gen. Couns.
    Mem. 98-1, at 2 (Jan. 26, 1998).
        \15\ Guide for Hearing Offices in NLRB Representation Proceedings
    at 27.
        \16\ Id.
        \17\ Utica Mutual Ins. Co. v. Vincent, Regional Director, 375 F2d.
    129 (2d. Cir. 1967).
        \18\ Proposed Rule 102.67.
        \19\ 29 CFR 102.67 (1961).
        \20\ Magnesium Casting Co. v. NLRB, 401 US 137 (1971).
        \21\ 156 NLRB 1236 (1966).
        \22\ 156 NLRB at 1239, quoting Sewall Mfg. Co., 138 NLRB 66 (1962).
        \23\ Bronfenbrenner, Kate, ``No Holds Barred: The Intensification
    of Employer Opposition to Organizing,'' EPPI Briefing Paper #235
    (2009); available at: http://epi.3cdn.net/edc3b3dc172dd1094f--
    0ym6ii96d.pdf
                                     ______

        Chairman Kline. Thank you, sir.
        Mr. Russell, you are recognized.

                STATEMENT OF PHILLIP RUSSELL, ATTORNEY,
                            OGLETREE DEAKINS

        Mr. Russell. Thank you. Mr. Chairman, Ranking Member
    Miller, Representative Ross, thank you for the introduction,
    and all members of the committee. It is truly an honor and
    professionally to participate in the legislative process. I
    cannot think of a better less for my daughter, Madison, who is
    here with me today. So thank you all very much. We both
    appreciate it.
        I am also wearing a purple ribbon today just to show my
    support for the Spring of Tampa Bay. This is Domestic Violence
    Awareness Month, so I would like to remind the audience of
    that, as well. I support the Spring, which provides victims
    safety, hope, and renewal.
        I support this bill. As a practicing labor lawyer and
    employment lawyer for over 16 years, and also as that kid who
    at 14 years old started bagging groceries and stocking shelves
    for grandparents' grocery store, I will tell you my Mamaw is
    still the toughest boss I have ever had.
        But I have had the opportunity to work with a lot of
    clients when dealing with labor campaigns. And yes, I am a
    management-side lawyer. But I will tell you what that means for
    me. What it has meant for me is that I have focused on
    employees' rights. And that is why I think this bill should be
    supported and it should become the law of the land.
        Because I believe that what the National Labor Relations
    Board has done is to ignore employees' rights in favor of union
    rights, or in favor of giving unions greater access. And so I
    want to focus my comments today--and my written material is
    also focused on--two rights, in particular, for employees. And
    that is the right to vote because I believe that everybody in
    the workplace should have a say on whether or not there is
    going to be a union.
        Not just a handpicked few by union organizers. And that is,
    what Specialty Healthcare essentially allows is, it allows the
    union to come in and organize only one part of a grocery store.
    And I am going to use a grocery store as an example not only
    because it was my family business way back when, but it was
    also one of my most recent campaigns.
        The union, in that case, came in and tried to organize just
    the natural foods employees. And under the law at the time, the
    board ultimately, after we had a hearing, the regional director
    had to make the correct decision that you could not organize
    just the employees in the natural foods department. That it had
    to be a wall-to-wall unit.
        You had to represent everybody. Because why does that make
    sense? In a grocery store, employees that work in produce,
    employees that are baggers, they stock shelves, they work in
    natural foods they have to help each other out. And if you had
    multiple bargaining units, with multiple unions perhaps
    representing different groups of employees, you are going to
    have essentially a management nightmare.
        How are you going to allow employees to go from department
    to department to cover absences, for example? How can employees
    advance in their careers if they want to get out of bagging
    groceries and get into the produce department. Typically,
    bagging groceries is a starting job. You want to move up in the
    grocery store business, and you want to move into a different
    department and perhaps into management someday.
        How can you do that if you have got yet another barrier to
    advancement in the workplace? And that is why I think this
    dividing employers and businesses into subunits gets in the way
    of employees' rights. And instead of allowing one small group
    of employees to vote, I think it is better policy and should be
    the law of the land, as it was before Specialty Healthcare,
    that everybody needs to get a right to vote on whether there is
    a union in the workplace.
        I also believe that there is another reason. And I am going
    to look at this from the perspective of my human resources
    colleagues, my friends at HR Florida and HR Tampa. They are
    going to have multiple policies, multiple hiring processes,
    multiple disciplinary rules, multiple benefit plans to
    administer.
        You are going to have to hire more employees. This is going
    to cost businesses more money. And in today's economic climate,
    the more cost to small businesses means less jobs. So I think
    that it is also going to have a negative impact on the economic
    recovery we are trying to work our way through.
        Another reason why I support this bill is the access to
    information. If you are a union organizer, you do not start
    your election on the day the petition is filed. You target that
    employer weeks or months in advance, you go get the support
    that you can get, you work your way towards getting as many
    authorization cards signed as you possibly can get, and you do
    not tell the employer.
        You do not go knock on the door and say, ``Mr. Grocery
    Store Manager, I would like to organize your employees. Do you
    mind if I get some names, addresses, and phone numbers?'' You
    do not tell them. Smart union organizers are going to go do
    this in people's kitchens, they are going to knock on their
    doors and they are going to ask their friends to introduce them
    to their friends. And they are going to get their cards signed,
    and they are going to ask them not to tell anybody and to keep
    it quiet until they get enough support.
        Then the petition is filed. And under the board's proposed
    rulemaking, the employer may have 10 days in which to respond
    to the union which has had weeks or months? That is not fair,
    and that is where the fairness part comes in to this bill. I
    think not only everybody should have a right to vote, but
    everybody should have a right to information from both sides.
        So after having heard from the union organizers, full-time
    professionals, to go out and to get them to support the union I
    think it is fair. And from the employees' perspective, their
    right to information will be supported by this bill because
    they will get better information before they make their
    decision. And they will not be forced to do so quickly.
        Those are the reasons I support the bill. Thank you again,
    all, very much for having me out today.
        [The statement of Mr. Russell follows:]

             Prepared Statement of Phillip B. Russell, Shareholder,
                 Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

        Nothing in this testimony should be construed as legal advice for
    any particular facts or situation. Moreover, this testimony is based on
    my own personal view and not those of Ogletree Deakins or any of its
    attorneys.
    I. Executive summary\1\
        The Workforce Democracy and Fairness Act, H.R. 3094 (WDFA),
    addresses the National Labor Relations Board's (NLRB or Board)
    overreaching decision in Specialty Healthcare, 357 NLRB No. 83 (August
    26, 2011), and the Board's proposed changes to election procedures.
    ---------------------------------------------------------------------------
        \1\ I would like to thank my colleagues, Harold P. Coxson, Jr. and
    Matthew Levine, for their assistance in drafting this written
    testimony.
    ---------------------------------------------------------------------------
        In both Specialty Healthcare and its proposed election procedure
    changes, the NLRB has greatly overstepped its statutory authority and
    worse, trampled on employees' rights to vote and to get sufficient
    information from both union organizers and the company before being
    forced into a quick decision.
        The WDFA has two primary components. First, it will protect the
    right of all employees in a workplace to vote on whether or not to have
    a union. Under Specialty Healthcare, a union organizer could target,
    organize, and ultimately fragment the workplace into sub-units of
    employees. The WDFA codifies the ``community of interest'' test the
    Board has historically used to determine an appropriate bargaining
    unit:
        (1) similarity of wages, benefits and working conditions;
        (2) similarity of skills and training;
        (3) centrality of management and common supervision;
        (4) extent of interchange and frequency of contact between
    employees;
        (5) integration of the work flow and interrelationship of the
    production process;
        (6) the consistency of the unit with the employer's organizational
    structure;
        (7) similarity of job functions and work; and
        (8) the bargaining history in the particular unit and the industry.
        In contrast, in Specialty Healthcare, rather than use these time-
    tested factors, the Board wants to presume that a unit composed of
    employees performing the same job at the same facility is presumptively
    appropriate. Under the WDFA, all employees in a workplace would get to
    participate in a campaign and have a right to vote on a union, not just
    a select few.
        The second major component of the WDFA is that it will protect
    employees' right to information before they are forced to vote on
    whether or not to have a union. In June 2011, the Board proposed a
    series of changes to the election procedures governing elections. One
    of the most dramatic changes is throwing out the traditional 42-day
    election period and reducing it to as little as 10 days. This change
    will effectively take away employees' right to get adequate information
    from their employer after having been bombarded with sales pitches by
    professional union organizers for weeks, if not months.
        For these reasons, and the detailed reasons stated below, I support
    the Workplace Democracy and Fairness Act.

    II. Analysis
                A. The WDFA Would Protect Employees' Right to Vote
        The Workforce Democracy and Fairness Act (WDFA) is designed, in
    part, to correct the National Labor Relations Board's over-stepping in
    Specialty Healthcare, 357 NLRB No. 83 (2011):
         The key issue is whether a small group of employees
    performing the same job at a single location constitute an individual
    bargaining unit. The Board's decision in Specialty Healthcare will
    affect an estimated six million workplaces covered by the National
    Labor Relations Act. The Board historically has applied a clear set of
    standards in determining a unit appropriate for bargaining, which the
    Specialty Healthcare case turned upside down, without any rational
    basis.
         The impact will lead to an explosion of ``micro-unions''
    within an entire workforce or across multiple locations; and will make
    it easier for unions to cherry-pick the unit of employees most likely
    to support the union and separate it from co-workers, effectively
    disenfranchising them.
         For example, a union may choose to organize poker dealers
    at a casino, rather than all dealers, because it knows the poker
    dealers support the unions, while the blackjack, craps, roulette and
    other dealers may not. Similarly, a union may organize a small group of
    employees working on one machine rather than all machinists in a
    manufacturing facility, because the majority of machinists do not want
    union representation. Another example is a grocery store. Using
    Specialty Healthcare, multiple labor unions could target and organize
    different groups of employees, such as cashiers, produce employees,
    baggers, stockers, and others. A single store with one entrance, one
    payroll, one set of policies and practices, one organizational chart,
    could be essentially Balkanized by sub-units of employees. Multiple
    contracts over multiple years covering multiple groups of employees
    would simply be unmanageable.
         These fractured units also will greatly limit an
    employer's ability to cross-train and meet customer and client demands
    via lean, flexible, staffing as employees could not perform work
    assigned to another unit. The impact on business productivity and
    competitiveness would be significant. Employees also would suffer from
    reduced job opportunities as promotions and transfers would be hindered
    by organization-unit barriers.
        While the issue presented in Specialty Healthcare was potentially
    narrow--whether a unit composed solely of certified nursing assistants
    (``CNAs'') is an appropriate unit--it now raises broad concerns for
    employers in all industries, including the nonacute healthcare industry
    in particular. The Board's decision in Specialty Healthcare portends a
    sweeping change in the standard for unit determinations in all
    industries regulated by the Act.
        The standard used by the Board majority in Specialty Healthcare
    holds that a unit composed of employees performing the same job at the
    same facility is presumptively appropriate. This standard has serious
    economic ramifications for the non-acute health care industry, at a
    time when the nation is attempting to provide affordable universal
    healthcare. It would lead to the proliferation of smaller, fragmented
    units, and therefore increase the likelihood of strikes, jurisdictional
    disputes, and other disruptions to operations--all of which is contrary
    to the national labor policy in the health care industry. With this
    standard now being applied in the other industries regulated by the Act
    (based on the broad language of the Board's decision in Specialty
    Healthcare), it will have the same disruptive and costly impact on
    those industries, many of which are still struggling to recover and
    create new jobs after a prolonged recession.
        Changing the unit determination standard in this manner might lead
    to increased union organizing in the short-term, but it will not result
    in meaningful collective bargaining in the long-term. Bargaining with a
    small unit of employees, which excludes many other employees who share
    a substantial community of interest whose work is integrated and
    interdependent, will be more costly and less likely to succeed.
    Ultimately, the Board has a statutory responsibility to approve
    bargaining units that are not only appropriate for organizing, but also
    for collective bargaining.
        The WDFA forces the Board to adhere to its longstanding precedent
    in unit determination cases, which strikes an appropriate balance
    between the statutory goals of allowing employees to exercise their
    right to organize and bargain collectively, while at the same time
    promoting industrial peace and minimizing interruptions to commerce
    through effective collective bargaining. With an economy showing no
    immediate signs of recovery and a Board that has lost its way, adoption
    of the WDFA is needed now more than ever before.

    1. the board should adhere to its longstanding precedent concerning the
                     scope of appropriate bargaining units
        In Specialty Healthcare, the Board concluded that a bargaining unit
    should be presumptively appropriate, in all industries, if it includes
    only those employees who perform the same job at a single facility. The
    argument for such a standard is set forth in the dissenting opinion of
    Member Becker in Wheeling Island Gaming, Inc., 355 NLRB No. 127 (2010).
    In that case, dissenting Member Becker argued that a petitioned-for
    unit consisting only of poker dealers at a casino is an appropriate
    unit, even though it excludes blackjack dealers and croupiers at the
    same casino. As the majority opinion noted, however, such a unit would
    be inconsistent with the Board's longstanding precedent, which holds
    that the interests of the employees in the unit sought must be
    ``sufficiently distinct from those of other employees to warrant the
    establishment of a separate unit.'' Id., slip op. at 1 n.2 (quoting
    Newton-Wellesley Hospital, 250 NLRB 409, 411-12 (1980)). Now, it
    appears that the Board is abandoning that longstanding precedent, in
    favor of a standard that would find a unit appropriate regardless of
    whether there are other employees who share a substantial community of
    interest with the employees in that unit.
        Reversing longstanding precedent in this manner is contrary to the
    fundamental purposes and polices of the Act. Member Becker has argued
    that the Board's precedent in unit determination cases ``have
    accumulated into complex and uncertain jurisprudence that threatens to
    thwart employees' efforts to exercise their right to choose a
    representative.'' Wheeling Island Gaming, 355 NLRB No. 127, slip op. at
    3. This argument ignores that the Act does not exist simply to
    facilitate and protect organizing in whatever unit a group of
    employees, or the petitioning labor organization, views to be the most
    desirable and advantageous, but the intent of the Act is also to foster
    and protect collective bargaining as a means of promoting industrial
    peace. See Fibreboard Paper Prod. Corp. v. NLRB, 379 U.S. 203, 211
    (1964) (``One of the primary purposes of the Act is to promote the
    peaceful settlement of industrial disputes by subjecting labor-
    management controversies to the mediatory influence of negotiation.'');
    Local 24, Int'l Bhd. of Teamsters v. Oliver, 358 U.S. 283, 295 (1959)
    (``The goal of federal labor policy, as expressed in the Wagner and
    Taft-Hartley Acts, is the promotion of collective bargaining * * * and
    thereby to minimize industrial strife.''); NLRB v. Jones & Laughlin
    Steel Corp., 301 U.S. 1, 42 (1937) (``A fundamental aim of the National
    Labor Relations Act is the establishment and maintenance of industrial
    peace to preserve the flow of interstate commerce.'').
        Section 9(c)(5) of the Act was added to reinforce that the Board
    should not make unit determinations with a singular focus on the
    desires of the petitioning employees or labor organization. Thus,
    Section 9(c)(5) provides that ``the extent to which the employees have
    organized shall not be controlling'' in the Board's unit
    determinations. 29 U.S.C. Sec.  159(c)(5) (emphasis added). The Board
    cannot, as suggested by Member Becker in Wheeling Island Gaming, and as
    implied by Specialty Healthcare, comply with Section 9(c)(5) merely by
    pointing to some community of interest factors that are consistent with
    the extent of the union's organizing effort. Wheeling Island Gaming,
    355 NLRB No. 127, slip op. at 3 n.2. The Board has a statutory
    responsibility to ensure that its unit determinations will ultimately
    promote stable and effective collective bargaining relationships. In
    the rulemaking for acute care hospitals, the Board recognized that its
    goal ``is to find a middle-ground position, to allocate power between
    labor and management by `striking the balance' in the appropriate
    place, with units that are neither too large or too small.'' 53 Fed.
    Reg. 33,904 (1988).\2\
    ---------------------------------------------------------------------------
        \2\ Academic literature describes the economic reasons for striking
    an appropriate balance between units that are neither too large nor too
    small. See Douglas L. Leslie, Labor Bargaining Units, 70 VA. LAW REV.
    353, 408-09 (1984).
    ---------------------------------------------------------------------------
        The purposes of the Act are not served by making unit
    determinations that exclude groups of employees who share ``a
    substantial community of interest with employees in the unit sought.''
    Colorado Nat'l Bank of Denver, 204 NLRB 243, 243 (1973). For this
    reason, the Board historically has not approved of ``fractured
    units''--units that ``are too narrow in scope or that have no rational
    basis.'' Seaboard Marine, Ltd., 327 NLRB 556, 556 (1999). Fragmented
    bargaining units may also effectively disenfranchise certain groups of
    employees, a result that is also contrary to the policy of the Act.
        Member Becker argues that American Cyanamid Co., 131 NLRB 909
    (1961), supports a sweeping presumption--one that would apply in all
    industries--that a unit of ``all employees doing the same job and
    working in the same facility'' should be approved absent ``compelling
    evidence that such a unit is inappropriate.'' Wheeling Island Gaming,
    355 NLRB No. 127, slip op. at 2. No such presumption can be drawn from
    American Cyanamid. To the contrary, in finding a unit of maintenance
    employees to be appropriate in that case, the Board specifically
    disavowed any presumption in favor of a maintenance-only unit in other
    cases: ``collective-bargaining units must be based upon all the
    relevant evidence in each individual case.'' American Cyanamid, 131
    NLRB at 911 (emphasis added). Consistent with the statutory mandate to
    foster industrial peace through effective collective bargaining, ``each
    unit determination must have a direct relevancy to the circumstances
    within which collective bargaining is to take place.'' Id.
        Thus, the Board's unit determinations have long considered, and
    should continue to consider, whether the scope of a proposed unit makes
    sense from the standpoint of the collective bargaining that will take
    place if the union prevails in the election. The Board should not, as
    Member Becker suggests, simply approve the narrowest unit sought by the
    petitioning labor organization and then leave it to the parties to
    reshape the unit if their ``experience with collective bargaining
    suggests to them that bargaining would be more productive in a larger
    or differently contoured unit. * * *'' Wheeling Island Gaming, 355 NLRB
    No. 127, slip op. at 2. To do so would undermine the stability of the
    work environment and the various relationships between employees,
    employers and unions. The Board has a statutory responsibility to make
    that determination in advance, and to withhold approval of bargaining
    units that are not suitable to effective collective bargaining.

     2. the board should not have, in the context of a case arising in the
     nonacute healthcare industry, reexamined the standards applied in all
                                other industries
        Although Specialty Healthcare arose in the nonacute health care
    industry, the Board extended its misinformed ruling to most industries
    within the Board's jurisdiction. Specialty Healthcare, 356 NLRB No. 83,
    slip op. at 20. This is a dangerous proposition. It is contrary to the
    Board's decision in American Cyanamid, which recognized that
    appropriate unit determinations are individualized determinations that
    ``will vary from industry to industry and from plant to plant.''
    American Cyanamid, 131 NLRB at 911. The Board's determination as to the
    scope of a proposed CNA-only unit in the nonacute healthcare industry
    should not have given rise to a presumption that would apply in the
    many other industries regulated by the Act.
        The Board asserts that ``[i]ndustry-specific rules are the
    exception, not the norm.'' Specialty Healthcare, 356 NLRB No. 56, slip
    op. at 3. Yet, the healthcare industry clearly is one such exception,
    given the rulemaking and pattern of decision-making that formed the
    backdrop for this case. Unit determination standards developed in this
    industry should not be the vehicle for creating a new presumption for
    all other industries.
        Unit determinations in other industries are based on different
    considerations and patterns of decision-making. In the utility
    industry, for instance, there is a presumption in favor of system-wide
    bargaining units. See Alyeska Pipeline Serv. Co., 348 NLRB 808, 809
    (2006); Baltimore Gas & Elec. Co., 206 NLRB 199, 201 (1973); Colorado
    Interstate Gas Co., 202 NLRB 847, 848 (1973); Louisiana Gas Serv. Co.,
    126 NLRB 147, 149 (1960). This presumption rests not only on community
    of interest factors, but also on the fundamental policy objective of
    the Act--minimizing interruptions to commerce resulting from labor
    disputes. See Alyeska Pipeline, 348 NLRB at 812 (``The Board's
    presumption in favor of a systemwide unit is based, at least in part,
    on the judgment that an increase in the number of units leads to an
    increase in the number of potential labor disputes and work
    stoppages.''); Baltimore Gas, 206 NLRB at 201 (``That judgment has
    plainly been impelled by the economic reality that the public utility
    industry is characterized by a high degree of interdependence of its
    various segments and that the public has an immediate and direct
    interest in the uninterrupted maintenance of the essential services
    that the public utility industry alone can adequately provide.'').
        There are also unique considerations and patterns of decision-
    making in other industries that play a major role in the national
    economy, including the trucking industry, the maritime industry, the
    hotel industry, the retail food industry, the television and radio
    industry, the newspaper industry, the construction industry, and in
    higher education. The Board should not have, in the context of a case
    arising in the nonacute healthcare industry, attempted to fashion a new
    unit determination standard that now applies in all of these
    industries. The standards to be applied in any industry should be
    determined only in a case arising in that particular industry, after
    full development of the unique facts and circumstances and patterns of
    collective bargaining that exist in that industry.
        The Board suggests that changing the unit determination standard
    may help prevent litigation over the scope of a proposed bargaining
    unit. Specialty Healthcare, 356 NLRB No. 56, slip op. at 3. This is not
    a sensible reason to upset the unit determination standard in all
    industries. Under the current standard, litigation concerning the scope
    of a bargaining unit is rare; over 90% of elections are conducted
    pursuant to a stipulation. See Office of the General Counsel, Summary
    of Operations (Fiscal Year 2010), Memorandum GC 11-03 (Jan. 10, 2011)
    (reporting that 92.1% of representation elections in FY 2010 were
    conducted pursuant to agreement of the parties, compared to a 91.9%
    election agreement rate in FY 2009).\3\ Changing the unit determination
    standard will produce more, not less, litigation because well-
    established precedent is now called into question and the parties will
    have an incentive to litigate in an effort to shape the law under the
    new standard. For this reason as well, the Board should not have
    engaged in a sweeping revision of its existing unit determination
    standards.
    ---------------------------------------------------------------------------
        \3\ In Wheeling Island Gaming, Member Becker asserted that
    ``litigation, often protracted litigation, over the scope of the unit
    occurs prior to almost every contested election.'' 355 NLRB No. 127,
    slip op. at 3. This is a cleverly worded but misleading statement,
    given that the overwhelming majority of Board elections are not
    contested. And, of that small minority of cases that are contested,
    many do not involve issues of unit scope. They frequently involve
    issues of unit composition (e.g., exclusion of supervisors) and related
    issues.
    ---------------------------------------------------------------------------
     3. the wdfa will fix the problems created by specialty healthcare and
                   codify the board's long-standing precedent
        The WDFA will address the issues highlighted above in the following
    manner:
         Bargaining Unit Determination--To limit proliferation and
    fragmentation of bargaining units, the legislation codifies the test
    used prior to Specialty Healthcare. Bargaining units are made up of
    employees that share a ``sufficient community of interest.'' In
    determining whether employees share a ``sufficient community of
    interest'' the Board will weigh eight factors, including similarity of
    wages, working conditions and skills. The Board will not exclude
    employees from the unit unless the interests of the group sought are
    sufficiently distinct from those of included employees to warrant the
    establishment of a separate unit. (Section 2(1), starting on page 2
    line 2, ending on page 3 line 1.)
         Bargaining Unit Challenges--To ensure employers can
    dispute union-proposed bargaining units, WDFA codifies the test used
    prior to Specialty Healthcare. Any party seeking to enlarge the
    proposed bargaining unit must demonstrate that employees in the larger
    unit share a ``sufficient community of interest'' with those in the
    proposed unit. (Section 2(1), starting on page 3 line 2, ending on page
    3 line 11.)
                B. The WDFA Would Protect Employees' Right to Make a Fully
                        Informed Decision In an Election
        In addition to the Specialty Healthcare bargaining unit issue, the
    WDFA also addresses the election rules issues raised by the Board's
    recent rulemaking attempt to use ``quickie'' elections and other
    changes to the Representation Case (or ``R-case'') procedures in union
    campaigns. The NLRB's proposed R-case rules would place excessive
    burdens on all businesses covered under the Act and would be unfair to
    employees. The WDFA is intended to protect employees and employers
    alike from such harsh consequences.
        Initially, it is highly inappropriate and ill-advised for the NLRB
    to propose new regulatory burdens on the backs of business at a time
    when the country is struggling to recover from economic recession,
    stimulate business investment and job growth, and reduce unemployment.
    The NLRB's proposed historic overhaul of its Representation-case rules
    flies in the face of President Obama's Executive Order 13563 and
    admonition to government agencies not to promulgate new regulations
    unless absolutely necessary, and to review existing regulations which
    would unduly and unnecessarily burden business, especially smaller
    businesses.
        In fact, the new rule would impose significant cost burdens on
    smaller businesses forced to invest the time and resources necessary to
    prepare for Representation-case hearings within as little at seven
    calendar days notice (in reality 5 working days), prepare a much more
    detailed ``Excelsior list'' within two days thereafter, and prepare for
    an election within as little as ten days from the date of the petition,
    and then prepare for a post-election challenge to unit questions and
    voter eligibility. The employer is likely to be un-counseled and
    susceptible to inadvertent unfair labor practices.
        All of the foregoing nearly eviscerates the ability of the employer
    to communicate with its employees and the ability of employees to
    obtain all the information necessary to make an informed decision. Just
    as union organizers are entitled to campaign among employees, employers
    have an equal right under the Act to express their opinion as to how
    unionization may affect the business, employees and customers. Absent
    sufficient time for employees to hear and discuss both sides of
    unionization with employers and fellow employees, the employees will
    not be adequately informed prior to voting, and thus will not have a
    meaningful opportunity to exercise their right under the Act to support
    or refrain from supporting a union.
        Americans are not very familiar with unions. Most small businesses,
    indeed most employees, know very little if anything about unions, union
    organizing, and union elections. They are working hard, struggling to
    survive in a down economy and to compete in a global economy which
    threatens their jobs and their businesses. Until recently, when certain
    Board actions elevated the agency in notoriety, most people had not
    heard of the NLRB, and gave little thought to unions, union organizing,
    and collective bargaining.
        With ``quickie'' election rules in place, there will be little time
    to educate employees and prepare a response to a union organizing
    campaign so that employees will be fully and fairly informed prior to
    the election. This is especially true for employees of smaller
    businesses--the ones whom the NLRB Chairman now certifies as
    experiencing no significant economic impact. In fact, the real cost for
    small business--the real economic impact--is taking the time and
    resources away from productive endeavors and job creation, and
    diverting them to preparing for ``quickie'' elections and ``quick
    snap'' organizing campaigns even if they never come.
        But the Board Majority simply chooses to ignore the economic impact
    of the rule or offer alternatives for small business under an Initial
    Regulatory Flexibility Act Analysis. Indeed, given the fast-moving
    train running on the current proposal one may wonder whether the final
    rule has already been written. The more the Board rushes to ram these
    rules through the process, the more one senses that the final rule, in
    the words of dissenting Board Member Brian Hayes, is a ``fait
    accompli.'' As he said: ``The sense of fait accompli is inescapable.''
                 1. the proposed rules are excessive and unfair
        The proposed rules are not small changes merely adapting to
    ``changing patterns of industrial life.'' 76 Fed. Reg. at 36816
    (quoting NLRB v. Weingarten, 420 U.S. 251, 266 (1975)). As stated
    recently in the public hearings on the proposed Representation-case
    rule changes before the NLRB by former NLRB member Chuck Cohen, I know
    and to an extent expect each Board appointed by a newly-elected
    political Administration to push the envelope in deciding cases in one
    direction or another--liberal/conservative, pro-union/pro-management.
    But Mr. Cohen stated that the regulatory changes proposed here do not
    push the envelope--they blow up the envelope. Statement of Charles I.
    Cohen before the NLRB Public Meeting, June 18, 2011.
        The Board's proposed rule focuses almost exclusively on the timing
    of the representation election process, referring frequently to ``the
    expeditious resolution of the election process.'' (See, e.g., 76 Fed.
    Reg. at 36,812, 36,813, and 36,817). However, the proposed rule appears
    to be concerned primarily with how rapidly it can push the election
    timetable from the date of the filing of a petition to the election
    itself. It pays less attention to what the Board claims as its
    priority--the timing from the date of the petition until resolution,
    including post-election procedures. In many cases the time saved at one
    end of the process by deferring pre-election hearings on unit
    determination and voter eligibility will more than be made up for by
    delays at the other end in post-election litigation. The proposal's 20
    percent rule and the rendering Board Review of Regional Director's
    Decisions discretionary invite mischief as well.
        ``Quickie election'' proposals under the Act are not new. They have
    been sought by organized labor for years to bail out its declining
    union density. ``Quickie elections'' were a major part of the 1978
    Labor Law Reform Act. Originally, labor sought time frames of 45 days.
    The bill as introduced in the House called for 15-25 days depending on
    complexity. The Senate bill provided for up to 21 days and the Senate
    substitute was 35 days. Barbara Townley, Labor Law Reform in U.S.
    Industrial Relations. Gower Publishing, 1986 at 124-125.
        More recently organized labor sought to enact legislation that
    simply would have done away with secret ballot elections--there would
    have been no elections, only card check certification under the
    Employee Free Choice Act (EFCA). See S. 560, 111th Cong., 1st Sess.
    (2009); H.R. 1409, 111th Cong. 1st Sess. (2009). What unions could not
    achieve through Congress, either under the 1978 Labor Law Reform Bill
    and more recently through EFCA, they now seek to achieve through
    rulemaking with the help of reliable compatriots in the Administration
    and at the Board. As dissenting Board Member Hayes ruefully predicted,
    ``by administrative fiat in lieu of Congressional action * * * (the
    proposed rules) will impose organized labor's much sought-after
    `quickie election' option.'' 76 Fed. Reg. at 36,831.
        An employer's free speech rights under Section 8(c) of the Act\4\
    only has meaning if there is a realistic opportunity to speak. The
    United States Supreme Court has characterized the Congressional policy
    as ``favoring uninhibited, robust, and wide-open debate'' of matters
    concerning union representation, so long as that does not include
    unlawful speech or conduct. Chamber of Commerce v. Brown, 554 U.S. 60,
    67-68 (2008). Limiting the reasonable opportunity for such uninhibited,
    robust and wide-open speech is the equivalent of denying it altogether.
    ---------------------------------------------------------------------------
        \4\ 29 U.S.C. Sec.  158 (c). Section 8(c) provides:

        The expressing of any views, argument, or opinion, or the
    dissemination thereof, whether in written, printed, graphic, or visual
    form, shall not constitute or be evidence of an unfair labor practice
    under any of the provisions of this Act, if such expression contains no
    threat of reprisal or force or promise of benefit.
    ---------------------------------------------------------------------------
        Allowing unions to control the timing of an election by campaigning
    for as long as it takes to get sufficient signatures on authorization
    cards from often harassed, brow-beaten employees, then springing an
    election petition on the employer giving the employer only 10--21 days
    (using dissenting Board Member Hayes's estimate) to respond is hardly
    labor law equality. Unions will argue that the employer has the ability
    to campaign against unionization from the employees' first days at
    work.\5\ That ignores, however, the fact that what for many employees
    is only white noise when discussed in the abstract, suddenly becomes
    important when there is a particular union involved. Employees have
    many questions after that. They want to know the union's record of
    delivering on promises made during a campaign, its contracts negotiated
    with other employers, its record of fair treatment of members and its
    exercise of the duty of fair representation in arbitration, its record
    of corruption, embezzlement, money laundering, and the like, and its
    political contributions and other campaign support for political
    candidates, and so on.
    ---------------------------------------------------------------------------
        \5\ The fact is, however, that most businesses, especially small
    businesses prefer to focus energy and resources on creating a strong
    working relationship with their employees and developing business
    opportunities. Moreover, these same employers are not sufficiently
    sophisticated in labor matters to be so forward thinking. In fact, it
    is more likely that small to mid-sized businesses will not know who the
    NLRB is and what union organizing means to their company until a
    petition for election is received.
    ---------------------------------------------------------------------------
                 2. ``quickie'' election rules are unnecessary
        The irony is that if the goal of the rule change is to give unions
    more opportunity to organize, which apparently it is, there is little
    empirical evidence the ``quickie'' election rules are even necessary
    given current record-setting election statistics both in terms of
    timing and results. The only studies linking election deadlines with
    union success are fundamentally flawed and self-serving drawing
    exclusively on statements from union organizers or ignoring other more
    credible sources.\6\
    ---------------------------------------------------------------------------
        \6\ See, e.g., two studies whose release in June 2011 appeared to
    be coordinated with the NLRB's proposed Representation-Case Rules which
    were published in the Federal Register as a NPRM on June 21. Kate
    Bronfenbrenner and Dorian Warren, The Empirical Case for Streamlining
    the NLRB Certification Process: The Role of Date of Unfair Labor
    Practice Occurrence, ISERP Working Paper Series 2011.01 (2011); John
    Logan, Erin Johansson, and Ryan Lamare, New Data: NLRB Process Fails to
    Ensure a Fair Vote, Univ. of Cal. Berkely Res. Brief (June 2011). See
    also, an earlier Bronfenbrenner study entitled No Holds Barred--The
    Intensification of Employer Opposition to Organizing, May 20, 2009,
    Economic policy Institute Briefing Paper #235, in which her
    questionable collection methodology relied as the primary source of
    anecdotal evidence interviews with the lead organizers involved in the
    organizing campaigns and elections studied. See, Responding to Union
    Rhetoric: The Reality of the American Workplace--Union Studies on
    Employer Coercion Lack Credibility and Integrity, U.S. Chamber of
    Commerce White Paper (2009).
    ---------------------------------------------------------------------------
        In fact, if speed were the only basis for determining fair
    elections, the Board is doing quite well, as demonstrated below and as
    noted in Board Member Hayes' dissent at 76 Fed. Reg. at 36,831 n.5. As
    stated in the proposed rule, over the past decade, Board supervised
    secret ballot union representation elections have taken place within
    the median time of 38 days from the date of the petition; in 2010 that
    statistic was 31 days, far fewer than the Board's target of 42 days.
    Contrast that with the record in 1960 when the median time was 82 days!
    See 76 Fed. Reg. at 36,813-36,814.
        Unions won a majority of elections throughout that same period,
    with a 68.7 percent win rate in 2009 and 67.6 percent in 2010. See NLRB
    Election Report (Oct. 19, 2010) and Board Member Hayes's dissent at 76
    Fed. Reg. at 36,832. It is not the function of the NLRB to assure union
    wins. The proposed rule states that it is ``unwarranted'' to assume
    that the rules changes are designed to ``increase the election success
    rate of unions.'' 76 Fed. Reg. at 36,829. While the Board describes
    that goal as ``unpredictable and immaterial'' (76 Fed. Reg. at 36,829),
    clearly that is not what unions believe. They openly tout these rule
    changes, just as they touted EFCA, as a ``game changer'' whereby they
    will increase union density.
     3. the wdfa gives employees and employers their rightful voice in the
                                    process
        In recent years under both Democratic and Republican Majorities,
    the Board lost credibility simply by going too far. The Board's
    proposed Representation-case rules do much more than push the envelope
    slightly in one direction or the other; they ``blow up the envelope''
    entirely. The WDFA curbs this severe blow and addresses the issues
    highlighted above as follows:
         Voter Eligibility--To ensure employees know who will be in
    their bargaining unit, know whether the issue of representation affects
    them personally and avoid complications on eligibility, e.g., whether
    an employee is a supervisor, the Board shall determine the appropriate
    bargaining unit prior to an election. (Section 2(1), page 2 line 3.)
         Scheduling of Pre-Election Hearing--Employers would have
    at least 14 days to hire an attorney, identify issues, and prepare
    their case for pre-election hearing. Employers and unions would have
    the same 14 days to compromise and agree on election issues. (Section
    2(2)(A), starting on page 3 line 14, ending on page 3 line 16.)
         Identifying Issues in Dispute--Employers and unions could
    independently raise any issue or assert any position at any time prior
    to the close of the hearing. Employers and unions would be free to
    raise issues as the hearing record develops, ensuring a fair and
    effective pre-election hearing. (Section 2(2)(B), starting on page 4
    line 3, ending on page 4 line 5.)
         Pre-election Board Review--Employers and unions could file
    post-hearing appeals with the Board, ensuring uniformity in Board
    decisions and clarity prior to the election. (Section 2(2)(C)(i),
    starting on page 4 line 7, ending on page 4 line 9.)
         Timing of Election--The Board will conduct an election as
    soon as practicable, but no less than 35 calendar days following the
    filing of an election petition. Employers will have time to share their
    opinions with employees, and employees will have time to become
    educated so they may effectively judge whether or not they wish to be
    represented by a union. (Section 2(2)(C)(ii), starting on page 4 line
    10, ending on page 4 line 14)
         Excelsior List--Rather than providing names and home
    addresses, employers will be required to provide the union with names
    and one additional piece of personal information of all employees on
    the final vote list seven days after the pre-election hearing. The
    additional piece of information, such as a personal phone number, email
    address, or home address, will be chosen in writing by employees. This
    will ensure employees can choose how to be contacted and protect
    employee privacy. (Section 2(2)(D), starting on page 4 line 15, ending
    on page 4 line 24.)

    III. Conclusion and recommendation
        Based on the foregoing, I support the Workforce Democracy and
    Fairness Act as a means by which Congress can protect the rights of all
    employees in a workplace to vote on unionization and their right to
    information from all sides before being forced to vote. The WDFA is
    also good for businesses, especially smaller businesses, because it
    would prevent fragmented workforces in which management would be forced
    to negotiate multiple contracts with multiple groups of employees or
    have fundamentally different sets of policies, pay, and practices for
    employees who are working side-by-side in their jobs. From a
    macroeconomic perspective, the WDFA will also protect jobs because it
    will avoid the unnecessary costs arising from fragmented workforces.
                                     ______

        Chairman Kline. Thank you very much. I thank all the
    witnesses for your testimony. It is clear that we have a panel
    of experts. All of you heeded my request on timing. This is the
    most precise in abiding by the green-yellow-red lighting system
    I think that we have seen here. Thank you very much for that.
        We are going to move to questions now. And I will ask my
    colleagues to please try to limit themselves to 5 minutes. I
    will drop the gavel relatively quickly if we start extending.
    Okay, I recognize myself.
        There is apparently some disagreement here over what
    ``Specialty'' means and who it applies to. Clearly, we were
    addressing this in this legislation. So let me start, Mr.
    Cohen, with your experience with the board. Prior to this
    Specialty ruling, what standard has the board applied to
    determine corporate union bargaining units?
        Mr. Cohen. Thank you very much, Chairman Kline. I think
    perhaps the best way to describe the community of interest and
    the distinction of interest and the various language pieces
    that come about is with a very practical example, if I could
    please give it.
        Chairman Kline. Please.
        Mr. Cohen. There is a case called Wheeling Island Gaming,
    which was the predecessor to our situation here. In Wheeling
    Island Gaming--that was a casino, obviously--the union sought
    to organize a unit limited to blackjack dealers. The employer
    said, ``Hold it. The smallest appropriate unit would have to
    include poker dealers and some related individuals, as well.''
        The case went to the board. The board decided that the
    blackjack dealers was too small of a unit. There was a dissent
    in that case by Member Becker, sole dissent. That was then teed
    up in Specialty Healthcare, which is being palmed off as a
    health care institution case. In Specialty, the board said,
    ``We want to consider, for all industries, how to change these
    standards.''
        So what did the board do? They issued Specialty Healthcare
    on its facts, but then expanded it to virtually all industries.
        Chairman Kline. So if I could interrupt. So going back to
    the casino, following Specialty it is your belief that those
    blackjack dealers could be formed into a union, and the poker
    dealers formed into a union and the cashiers at the window. I
    assume you go to a window to cash in your chips or something. I
    never have any cash-in, but something like that.
        So you could have multiple bargaining units inside that
    casino, and that has nothing to do with health care, acute
    care, or any other kind of care.
        Mr. Cohen. That is correct. There is one thing that the
    employer can do is, it can go to a hearing, under Specialty,
    and say, ``Look, there is something called an overwhelming
    community of interest between the poker dealers and the
    blackjack dealers.'' And if the employer can prove that
    overwhelming community of interest standard, then the smallest
    unit would have to include both of them.
        But we do not know what an overwhelming community of
    interest is in these circumstances. It is not a concept which
    has been prevalent in representation election questions. It is
    a different concept. So we have an artificial wall created
    here, with an opportunity of the employer to try to prove
    something which would be exceptionally hard to prove.
        And in my judgment, a career NLRB regional director would
    be compelled in almost every case to find that a collective
    bargaining unit composed exclusively of the blackjack dealers
    that would, be the order of the day.
        Chairman Kline. Thank you. And so in Mr. Russell's example,
    this could apply everywhere. He talked about a grocery store--I
    think it is a terrific example--where you have people in the
    meat department, the grocery department, the baggers, the
    stockers, the cashiers. And all of those could be, and would
    almost necessarily have to be, recognized as a bargaining unit.
        Back to you, Mr. Cohen. This bill that is before us, would
    that--this legislation, the four-page, this four-page bill, I
    know it is less than 1,000 pages so sometimes it is hard for us
    to face that--would that address the concerns that you have
    just told us about?
        Mr. Cohen. I believe it would. It would, in my judgment,
    restore us to the law before August 26, which is all that that
    aspect of the bill would deal with. And then if we also go back
    to the proposed quickie election rules it would also eliminate
    those. We have had, for decades, very well-oiled machinery in
    place for determining employer positions, going to hearings if
    necessary.
        But in over 90 percent of the cases, employers do not even
    go to hearings and elections are held very quickly and unions
    win substantial numbers of elections, virtually two out of
    three, but that is not enough in the environment we are in now.
    What this attempt is to do is to gerrymander the unit into
    something micro, and then have an election before there is an
    opportunity to respond to it.
        Chairman Kline. Thank you.
        Mr. Cohen. So this bill would help very much in restoring
    the situation to where we were.
        Chairman Kline. Thank you. My time has expired.
        Mr. Miller, you are recognized.
        Mr. Miller. Thank you very much, Mr. Chairman. Thank you to
    all of the panel for your testimony.
        Mr. Hunter, as I dig through this legislation, I do not see
    how you get to an election against a determined--mildly
    determined perhaps, under this legislation--employer? How do
    you get there?
        Mr. Hunter. I do not think you get there for years, as a
    practical matter. Because the way this legislation reads, no
    direction of election can be made until review has been had of
    any issue in that case. And as a----
        Mr. Miller. That is not a discretionary decision.
        Mr. Hunter. It is not a discretionary decision because it
    is now mandatory. Which means instead of the small number of
    cases for which review is actually granted, every single case
    will have to go for review. As a consequence, it is going to
    cost the board a tremendous amount of money to do that instead
    of effectuate the other purposes of the act.
        And it is going to plug up the procedure, and it is going
    to take years.
        Mr. Miller. Under current law, those issues are raised at
    the regional level. Is that correct?
        Mr. Hunter. Well, under current law those issues, those
    pre-election issues, are raised before a regional director and
    an employer can seek review. But only if review is granted.
        Mr. Miller. How many of those, what percentage of those,
    issues raised at the regional level are----
        Mr. Hunter. A very small, extremely small, percentage of
    those----
        Mr. Miller [continuing]. Forwarded for review?
        Mr. Hunter [continuing]. Are granted. And in some cases,
    even where review is granted--for example, in some cases
    review--review will be granted over a discrete question as to
    whether----
        Mr. Miller. Five percent of the cases, 1 percent of the
    cases?
        Mr. Hunter. Yes, a certain set of people, or supervisors,
    or something. Then even when review is granted, those
    individuals area simply allowed to vote under challenge.
        Mr. Miller. And then the process goes forward.
        Mr. Hunter. Yes.
        Mr. Miller. Under the proposed legislation, the process
    stops until there is a review of every one of those----
        Mr. Hunter. That is absolutely correct.
        Mr. Miller [continuing]. Appeals is brought to the board.
        Mr. Hunter. That is absolutely correct.
        Mr. Miller. So the incentive is in filing an appeal.
        Mr. Hunter. That is right. I mean, if an employer does not
    want to have a union they need to simply keep that process
    going until people lose interest, or----
        Mr. Miller. You know, we just went through a couple of
    years of investigation and study under mine safety, where
    clearly a conscious decision was made by the companies to flood
    the appeal system on enforcement penalties and fines so that
    effectively all the processes of the review board were
    completely stifled.
        So if you do not want to pay a fine, you do not want to
    improve the workplace, you do not want to make is safer, you
    just keep flooding it with appeals, and your judgment day is
    put off years into the future, if ever.
        Mr. Hunter. I think that is exactly right, and that is
    exactly what will happen.
        Mr. Miller. So every issue that you can conceivably raise
    at the regional level, you would then take to an appeal. And I
    think currently those that are accepted, which is a 1 percent
    or 2 percent of the cases, I think, that are accepted by the
    board. Those take about a year-and-a-half?
        Mr. Hunter. Yes, they can take a year-and-a-half, 2 years.
        Mr. Miller. So we have all of this concern of the timelines
    that are set in the proposed regs, and yet there is no concern
    here with the fact that the election can be postponed for
    years. And we all know what that means in an organizing drive
    is that people leave professions, people lose heart.
        The employer never lets up on the drumbeat, never lets up
    on the campaign against the union. We know that an incredible
    amount of illegal intimidation goes on in the workplace against
    the union. So that drumbeat goes on for a year, 2 years, what
    have you, while a group of employees has decided they want to
    join the union lives under that assault.
        And if it is now with 1 percent of the appeals being
    accepted or 2 percent of the appeals being accepted, that time
    frame is over 500 days. It is effectively----
        Mr. Hunter. It denies employees the right to organize.
        Mr. Miller. There is no reason----
        Mr. Hunter. It simply denies it.
        Mr. Miller. Perfect. Thank you.
        Chairman Kline. Thank the gentleman.
        Mrs. Biggert, you are recognized for 5 minutes.
        Mrs. Biggert. Thank you, Mr. Chairman.
        My question would first be for Mr. Russell. And this may be
    a question of the number of days. If we are talking 17 days or
    we are talking 14 days, is that calendar days or is that
    business days?
        Mr. Russell. Calendar days.
        Mrs. Biggert. Calendar days. So if an employer had the 7
    days to find an attorney and prepare for the pre-election
    hearing, that means that, let us say, they got a petition filed
    on Thursday or Friday. Then that means that that would include
    the weekend for them do all this.
        Let us add Friday. So really cannot get ahold of an
    attorney until Monday if somebody is not available because the
    offices are closed.
        Mr. Russell. That is correct. So you will get petitions
    filed Friday at 5 o'clock.
        Mrs. Biggert. So that would count the Friday.
        Mr. Russell. Correct. Well, it would not count the day of
    the filing. You count from there. We would start with Saturday,
    Sunday, and so forth.
        Mrs. Biggert. So then the next Friday they would have to
    have filed, have an attorney, and prepared the case for the
    pre-election hearing.
        Mr. Russell. Correct. I think what troubles me about that
    is, from a small business perspective--and, again, I am going
    to go back to the grocery store and the example that I use--the
    one that I represented in that campaign--they had never dealt
    with these kind of issues before ever.
        Nor had any of the employees that were working for the
    grocery store. And there were about 100 employees. None of them
    had ever had any experiences with unions at all. They did not
    know what they mean, did not know what the realities were of
    union membership, the good and the bad.
        They simply had no knowledge whatsoever. And today, the
    private workforce is only organized at about 7 percent. So
    there is an awful lot of employees out there who had never been
    in a union--Generation X, the Millennials, not even their
    parents.
        Mrs. Biggert. So in your experience, how much time do you
    think an employer needs to prepare his staff, to educate his
    employees about the effects of the unionization?
        Mr. Russell. Well, there is really two parts to that. And
    think, first of all, how much time does the company need at
    first to hire an attorney and figure out the legal issues. I
    think this bill provides for at least 2 weeks. That, again,
    really is only 10 business days.
        But at least I think that time period is workable, and it
    is a reasonable compromise. It is definitely not overreaching.
    And I do not believe, as Mr. Hunter says, delays the process
    inordinately. But it does give the employer an opportunity to
    get the legal team together and to get some advice.
        And as Chairman Kline pointed out, these rules are
    complicated. There is another resource we go to all the time
    called the Developing Labor Law, which really is the Bible for
    labor lawyers, union-and management-side. And it is two
    volumes.
        So in order to get your arms around it, not all campaigns
    are alike. It takes time. Now, the second part you asked about
    how long it takes to educate employees. You know, I think,
    again, let us point to the current data which Mr. Cohen
    indicated. Thirty-eight days is the median time frame, the
    average is 31 days.
        I think the bill provides for at least 35 days. That is a
    reasonable time, and a good compromise, in which employees can
    exercise their right to get information before being forced to
    vote.
        Mrs. Biggert. Do you know how many days the NLRB looking to
    have these elections take place?
        Mr. Russell. Yes, they wanted the elections in as few as 10
    days after the petition was filed. That is simply unworkable.
    It is unfair to the employees. They will not get the
    information they need, employers will not get the advice and
    support they need.
        Mrs. Biggert. Okay.
        Then thank you very much. Mr. Cohen, in testimony, and I
    think Mr. Russell also talked about this, you highlight the
    fact that employers would likely be unaware of pre-petition
    union activities, and yet would be forced to prepare themselves
    for the process, an abbreviated time frame.
        Can you give me some of the other pre-petition union
    activities that would place an unfair burden on the employer?
        Mr. Cohen. Well, sure. As Mr. Russell testified, unions, in
    their organizing drives, very rarely go to the employer and
    say, ``Mr. Employer, I want to organize your employees.'' They
    get together a group of individuals who they think they have
    like cause with, and they work with them.
        Then they decide, in their own judgment, what the
    appropriate unit is going to be. And then they will proceed to
    do the organizing around that collect course.
        Mrs. Biggert. Because I do not have too much time, I just
    wanted to ask you one other question.
        Mr. Cohen. Sure.
        Mrs. Biggert. And that is, what about the right to privacy
    under the proposed rules that would be concerned?
        Mr. Cohen. Right now, there is an obligation to provide
    what is called an ``excelsior list,'' which is the name and
    home address of employees. A lot of employees resent that. But
    employers say this is what the law requires, and that is it.
        Under the proposed rules, there would have to be given over
    electronic communication information. It is unclear, under the
    rules, whether it is going to be business e-mails, work e-
    mails, or personal e-mails, or both. Both of those, I think,
    severely intrude on employee privacy rights.
        And it is not a warranted reason, in my judgment, to have
    that kind of imposition required.
        Chairman Kline. The gentlelady's time has expired.
        Mr. Andrews?
        Mr. Andrews. Thank you, Mr. Chairman.
        Mr. Cohen, you make the case that speed alone should not be
    the predominant value for NLRB decision-making process. Do you
    think that one of the other values should be careful reasoning
    and accuracy of their decisions?
        Mr. Cohen. Obviously one would tend to think that accuracy
    is a value and, of course, it is. But if I can----
        Mr. Andrews. I only have 5 minutes unless, of course, the
    chairman gives me another minute and a half.
        Mr. Cohen. But, Mr. Andrews, the law does not require that.
    Unions can misrepresent, and employers can, as well.
        Mr. Andrews. Mr. Cohen, let me ask the questions. Would you
    agree that the regional directors are, by and large, quite
    competent in rendering decisions in the present decision-making
    process?
        Mr. Cohen. I think, by and large, the regional directors do
    a good, conscientious job of applying the law that is before
    them.
        Mr. Andrews. Right, I agree with you. Do you know what
    percentage of representation cases the National Labor Relations
    Board presently takes? Because it has the discretion to hear
    them or not now. What percentage of cases do they take up in
    representation cases at the full board?
        Mr. Cohen. Very small. Because the review process, which
    occurs before the election is held----
        Mr. Andrews. Right.
        Mr. Cohen [continuing]. Either determines to grant review,
    which only happens in a very small number of cases----
        Mr. Andrews. The answer----
        Mr. Cohen [continuing]. Or to decline review.
        Mr. Andrews. The answer is 1.3 percent. Now, is it not
    correct, under the bill that is in front of us, they would have
    to take 100 percent of the representation cases?
        Mr. Cohen. I believe that that is rather a technical issue
    with the proposed legislation.
        Mr. Andrews. No, it is----
        Mr. Cohen. As I understand it----
        Mr. Andrews. Well, as I read the legislation, it says that
    every representation case must be decided by the full board.
    Now, what do you think that would do in terms of delaying
    elections?
        Mr. Cohen. I would expect that the numbers would not change
    under the proposed legislation. What would happen----
        Mr. Andrews. Really?
        Mr. Cohen [continuing]. The regional director would issue--
    --
        Mr. Andrews. Please let me ask the questions. If they had
    to take 100 percent of the cases and review them, instead of
    1.3 percent, you do not think that would result in more delay.
        Mr. Cohen. They have 100 percent now.
        Mr. Andrews. They take 1.3 percent of the cases now on
    their discretionary review. What reason do you think might
    exist to require them to take 100 percent of the cases for
    review?
        Mr. Cohen. Again, please, Mr. Andrews. They have 100
    percent now. The issue, 90-some percent are waived at the
    initial stage. Then there are only a few where reviews are
    granted. And all that takes place before the election, which is
    occurring in a quick period of time.
        Mr. Andrews. And as I read this bill, it eliminates the
    possibility of that waiver. It says they have to take up all
    the bills, and I think that would create a major problem.
        Mr. Sullivan, you represent the major retailers of the
    country?
        Mr. Sullivan. I represent the Retail Industry Leaders
    Association. So it is the trade association and not the
    retailers themselves.
        Mr. Andrews. Has your association taken a provision on the
    president's proposal that would stave off a $1,500 a year tax
    increase for middle class families if we do not act by December
    31st?
        Mr. Sullivan. I do not know anything about that, sir.
        Mr. Andrews. You have not taken a position on that?
        Mr. Sullivan. I do not know. I do not know how to answer
    your question.
        Mr. Andrews. You do not know the positions your association
    takes on legislative issues?
        Mr. Sullivan. I do know their position on what they have
    asked me to come and testify about, but I do not know what you
    are asking about.
        Mr. Andrews. Okay. I would expect they would support the
    proposal. I am reading a headline that says ``RILA
    Congratulates Senate on Swift Passage of Stimulus Proposal.''
    Now, of course, that was the stimulus proposal under the Bush
    administration of February 5, 2008, which put more money in the
    pockets of consumers.
        Do you think putting more money in the pockets of consumers
    is good for the retail industry?
        Mr. Sullivan. I would have to agree that more money in
    consumers' pockets is good. Other policy issues you are asking
    me about I am really not prepared to address.
        Mr. Andrews. I understand.
        Mr. Cohen, when you talked about the blackjack dealers and
    the poker dealers, and where the board decided that the
    bargaining unit, as I understand it, with just blackjack
    dealers is not big enough. Right? Who had the burden of proving
    in that case that the blackjack-only dealers was not the
    appropriate bargaining?
        Was it the employer, or was it the people trying to
    organize the union?
        Mr. Cohen. The hearing officer of the board was charged
    with developing a full record. If a position was----
        Mr. Andrews. That is not what I asked you. Who had the
    burden of proving whether the blackjack-only unit was the right
    unit? Who had the burden of proving that?
        Mr. Cohen. Mr. Andrews, if you do not want to answer the
    question, then I cannot give you the answer.
        Mr. Andrews. Well, I would like you to answer the question
    I asked. Who had the burden of proof in that instance?
        Mr. Cohen. It is not a yes-or-no answer. It is not a one or
    the other answer.
        Mr. Andrews. Was it the employer, or the union? Who had the
    burden of proof?
        Mr. Cohen. The NLRB hearing officer.
        Mr. Andrews. The judge had the burden of proof?
        Mr. Cohen. But there is a qualifier, if you will give me a
    chance to explain that I would like to explain.
        Mr. Andrews. Up to the chairman. He gave the last
    questioner an extra minute and a half. I am sure he will give
    that to me, as well. Is he here?
        No. Please answer the question.
        Mr. Cohen. The answer is, the hearing officer is charged
    with developing a record. If an employer takes a position in a
    hearing, then the burden is then on the employer to make that
    case. That is the Bennett Industries case.
        Mr. Andrews. Does the statute change that rule, and put the
    burden on the union? The bill that is before the committee?
        Mr. Cohen. Are we talking about the quickie election rules,
    or are we talking about Specialty Healthcare?
        Mr. Andrews. The chairman's bill. Does it shift the burden
    to the person trying to organize the union?
        Mr. Cohen. I am not certain in a given case.
        Mr. Andrews. The answer is yes, it does. Which is, that is
    truly a radical change in labor law.
        Thank you, I----
        Chairman Kline. The gentleman's time has now expired. Thank
    the gentleman. Let us see.
        Dr. Heck?
        Mr. Heck. Thank you, Mr. Chairman.
        Mr. Russell, I appreciate your grocery store analogy. But I
    worked in a hospital emergency department as a physician, and
    look at how many different folks work in a hospital emergency
    department. You have doctors, nurses, CNAs, clerks, custodial
    staff.
        And realizing it may be an apples-to-apples comparison
    because of the health care exemptions, but theoretically then
    each one of those particular job classifications could be a
    separate unit. And then if that is the case, what about those
    same classifications that work in other departments?
        So if you work in the emergency department you would have
    one unit, if you work in med surg you could have another, if
    have a CNA in the OR you could have another. Is that possible?
        Mr. Russell. That is entirely possible. In fact, another
    one of my recent campaigns involved a nursing home. So the
    example of the CNAs in the Specialty Healthcare case is
    something that I paid very close attention to. In that case,
    the union relented.
        We reached agreement on the election. There were not
    endless delays, we did not tie it up forever, and we got to a
    vote in a reasonable amount of time. I forget the exact days,
    it may have been 41, but we got to a vote. And everybody in the
    nursing home had an opportunity to cast a vote and, once they
    got full and fair opportunity to information.
        Had Specialty Healthcare been in place, we would have an
    election only involving CNAs, though those jobs are fully
    integrated with everybody else. They all work side-by-side. And
    they may even work different floors on the hospital and the
    nursing home, but they still have to interact with the dietary
    department, they have to interact with the administrative
    employees, they have to interact with housekeeping, many
    departments.
        So you are correct.
        Mr. Heck. Thank you. And Mr. Sullivan----
        Mr. Hunter. Mr. Chairman, if you would indulge me I would
    like to----
        Chairman Kline. No, it is Dr. Heck's time. I am sorry.
        Mr. Heck. Mr. Sullivan, usually in unions the idea is that
    there is strength in numbers. So unionizing these very small
    groups of people, how does that actually benefit the employee?
        Mr. Sullivan. How does it benefit the employees?
        Mr. Heck. Right.
        Mr. Sullivan. I think it does not benefit the employees. I
    think in--in the example that I gave in my opening testimony of
    the grocery store, it is very common to move from department to
    department in--in many retail settings. And that gives the
    employees the benefit of variety in their day, the ability to
    cover shifts in other departments, earn extra money when
    employees are absent which is obviously an important thing
    these days.
        And it lets them learn the business. And if single
    departments or multiple departments are organized as separate
    bargaining units, the transfer between departments is going to
    be hindered. And that is not going to be good for anyone.
        Mr. Heck. Thank you.
        And Mr. Cohen, lastly--you know, I was brought up with the
    adage ``if it is not broke, do not fix it.'' What has happened
    with the decades of precedent in labor law recently that is now
    required, this fix to be propagated by the NLRB?
        Mr. Cohen. My own view of it, Congressman, is that with
    declining union density that--and an inability to change
    through legislation the NLRA, there has been attempt to go to
    the NLRB--where a majority of the members are of the party of
    the White House occupant--and change, through rules and
    regulations without the mandate of Congress, whatever can be
    done to facilitate union organizing.
        Mr. Heck. Thank you. Thank you, Mr. Chair. I yield back.
        Chairman Kline. I thank the gentleman.
        Ms. Hirono, you are recognized.
        Ms. Hirono. Thank you, Mr. Chairman.
        I have questions for Mr. Hunter. Hawaii unions have told me
    that in their organizing efforts they are often prevented from
    accessing the workers in the workplace. Is it not true that
    employers have unfettered access to their employees at any time
    of the work day to press their views about the union? Of
    course, not in any legal way.
        But they have access. And does anything in this bill change
    any of those kinds of situations?
        Mr. Hunter. Well, the employer does have unfettered access
    and they have unfettered access at work, where they control the
    employee's work life. And importantly, they have that access
    not from the day a union organizing drive starts, but from the
    day that an employee goes to work for that employer.
        And some 90 percent of employers make their views known to
    workers as far as how they feel about labor unions. The
    employer tends to have e-mail addresses for employees. They
    generally have telephone numbers, they have they have that
    means of communication.
        So, you know, there may be--you know, and I have heard some
    reference to this of while the employer finds out when a
    petition's filed that there is a union drive going on, there
    may be somewhere a union drive that the employer did not know
    about until the petition was filed, but I have never seen one.
    They always know.
        Ms. Hirono. Yes, we have heard testimony to that effect. I
    also find that hard to believe in a real-life situation. And if
    we really cared about fair elections and fair efforts at
    organizing, then I think that there should be something in this
    bill that allows for the organizers to have access to the
    employee.
        Another question. It is pretty clear to me, in reading this
    bill, that the question of the filing of the various appeals
    that the board will now have to take up, there will not be
    discretionary waivers and it is going to clog things up. And I
    am wondering whether--since only about 1 percent to 2 percent
    of the appeals are actually dealt with by the board now, are
    there any sanctions under the current NLRA against parties who
    file frivolous appeals?
        Because I would anticipate that there will be many of those
    that the board will no longer have the discretion to dispense
    with under this bill.
        Mr. Hunter. No, there are no sanctions for filing frivolous
    appeals. To my knowledge, the only thing in the nature of
    sanction that the board's ever had is people engaging in
    outrageous behavior like if I jumped on this table or something
    during this hearing as opposed to the positions I take, and
    what have you.
        So there are no sanctions.
        Ms. Hirono. So generally speaking, in other parts of--well,
    in litigation, there are usually sanctions against people who
    file frivolous kinds of appeals. And I should think that we
    would want to put that kind of provision--it is still, if we
    really want to be fair about things.
        There were some questions relating to the burden shifting
    to the employer or to the organizers with regard to identifying
    the community of interest. And I just wanted to ask you, Mr.
    Hunter, in this bill once a community of interest group of
    employees is identified--and, of course, it is the employers
    who do not want to have the organizing effort going on, or
    succeed.
        They would want to expand that group. They have an
    incentive to do that. So in this bill, an employer who seeks to
    expand the bargaining unit--so that is a--organizers would have
    to get more and more signatures in order to proceed with an
    election.
        Does the burden shift, in this bill, to the organizers when
    the employer wants to expand the community of interest group?
        Mr. Hunter. Well, I think as a practical matter it does. In
    the general nature of things, a union would establish that the
    unit that it seeks is a readily--has a readily identifiable
    community of interest. And then if an employer disputes that,
    they would have to show that that was not the case.
        The difficulty with the standard in this bill is, it
    essentially provides that, unless the employer does not take
    the position, in just about all cases there is only going to be
    one appropriate unit. Community of interest is a sliding scale.
    Everybody who works for an employer in a particular plant has
    one common denominator of community of interest.
        Everybody who works for the whole employer has a more
    common denominator of community of interest. That has never
    been the test. And if this is adopted, so long as an employer
    can show that there is a basic community of interest--in other
    words, that a plant unit, the act, as it reads now, indicates
    that the union can seek an employer unit, a plant unit, or some
    division thereof.
        If this--that has been taken out of the act in this bill.
    So that essentially, as long as there is some community of
    interest, if the employer can say it would be a viable
    sufficient community of interest to have all the employees in a
    particular state organized, then essentially that petition's
    going to get dismissed.
        Chairman Kline. The gentlelady's time has expired.
        Mr. Ross, you are recognized.
        Mr. Ross. Thank you, Mr. Chairman. For the last couple of
    months, I have had an opportunity to work on a subcommittee
    issue that I chair. That has to do with the post office, which
    is a public sector union, totally different from what we are
    talking about here.
        But there is an analogy to be made that I think--that is
    interesting with regard to bargaining units. You see, some of
    you all have been to the post office, and you see there is a
    bunch of people in the back just working away and there is a
    few people at the counter, and there is a long line, and nobody
    from the back comes to the front.
        Because their bargaining agreements prohibit one from
    cross-training to the other. And my concern here is--especially
    with you, Mr. Sullivan, when you represent the retail industry,
    are we not seeing what has happened in the postal industry?
    Where by busboys, or busladies, who have now unionized, will
    not clear my table, and the waitress or waiter cannot clear it
    because they are not cross-training because they are
    independent bargaining units?
        It seems to me that what we are doing is allowing for an
    unfair competitive advantage to those who do not participate.
    And I guess I would just like your take on this as to whether
    you think that ultimately, if the NLRB rules go through, and
    Specialty Healthcare goes through as it is now, the standing
    law, are we not looking at a situation where we are not going
    to have a competitive advantage in our retail market?
        Mr. Sullivan. Well, I think that there is a threat of
    substantial harm to the entire functioning of the retail
    market. We--before this ever became an issue--and historically
    retailers have placed great emphasis on cross-training. And the
    nature of customer service is such that when we all walk into a
    store to buy something, and we see an employee of that store
    and ask a question, we do not want to be told, ``I am sorry. I
    do not work in that department.''
        We want employees who are familiar with all departments and
    able to work in all departments. And we want them all to
    support each other.
        Mr. Ross. So, Mr. Sullivan, you hit it on--I think in your
    opening statement, when you talked about if a bagger at a
    grocery store wanted to move on somewhere they really could not
    if they were part of this--one of these mini unions. And I am--
    and I go back to the founder of Wendy's, Dave Thomas, who has
    since passed away.
        But his secret to success was, if he had to be there at
    8:30 he showed up at 8. If he got off at 5, he worked 'til
    5:30. But in light of many unions, in light of impediments that
    we are going to prohibit not only the cross-training but the
    advancement of employees, what career service, what career
    opportunities are there out there under circumstances where
    members of these mini unions now must be beholden to their mini
    unions?
        Mr. Sullivan. I do not know.
        Mr. Ross. Mr. Russell, as a lawyer, what would you say--are
    there instances where you can say--that from a procedural
    standpoint it is better to shorten the time than to lengthen
    the time?
        Mr. Russell. Which time period?
        Mr. Ross. Any time period. I mean, as a lawyer, for
    procedural purposes are there any situations where you feel it
    is better to shorten the time as opposed to lengthen the time?
        Mr. Russell. No. And what troubles me about the shortening
    of the time that the board has proposed here is that you are
    taking away the rights of the employees to get the full
    information they need. And as I said earlier, the union has
    already been talking to them for weeks or months.
        What is wrong with the employer having a reasonable
    opportunity to get that information to the employees.
        Mr. Ross. And, Mr. Hunter, why would you object to that? I
    mean, it seems to me that shortening the time really is more--
    doing more of a disservice to the union organizers or the
    employees for not adequately understanding the situation. I
    mean, why do we need to have the shortened period in the first
    place?
        Mr. Hunter. As I indicated, first of all I do want to
    stress here that I am talking in terms of a bill, and here we
    are talking in terms of proposed rules that--for which
    thousands of comments have been submitted which we do not know
    what form, or whether they will be adopted in their precise
    form. Or whether----
        Mr. Ross. But we have a pretty good indication, based on
    the history of this NLRB over the last couple of years.
        Mr. Hunter. The employer has had the opportunity from day
    one to talk to people and let them know their feelings on
    unions. An increase of time to essentially beat on people
    with----
        Mr. Ross. And you are okay with employers disclosing all
    the personal information under the excelsior list? Under--
    allowing for them to have all the--and maybe even opening up
    that employer to privacy suits, violation of privacy suits.
        Mr. Hunter. I do not think that if an employer--if
    something becomes the law, and the employer follows the law, I
    do not believe they are going to subject themselves to any----
        Mr. Ross. That is your experience?
        Mr. Cohen?
        Mr. Cohen. My experience is that employees very frequently
    resent having their personal information turned over, and would
    resent to a greater extent having to turn over a greater amount
    of personal information.
        And in response, if I might, to something that Mr. Hunter
    said, I know of no employer that communicates with its
    employees at home on e-mail dealing with anything like the
    kinds of topics we are dealing with here.
        Chairman Kline. The gentleman's time has expired.
        Ms. Woolsey, you are recognized.
        Ms. Woolsey. Thank you, Mr. Chairman. Just on a little bit
    different note for just a minute, I want to thank Mr. Russell
    for wearing his purple ribbon. This is domestic violence month,
    and I have reintroduced legislation that would bring domestic
    violence victims and their families under the FMLA-Family and
    Medical Leave Act.
        And I introduced it today, so thanks for reminding me to
    say that. Because it falls under the jurisdiction of this
    committee.
        Mr. Hunter. Thank you.
        Ms. Woolsey. Thank you.
        Okay, I cannot let go of this conversation about smart
    unions certainly do not let employers know that they are
    organizing. Well, first of all they cannot. They do not have
    access. I mean, they could if they are--but they are not going
    to. But even if they wanted to, they have such restrictions on
    and lack of accessibility to the workforce.
        So okay, we know that. They can find their way around it.
    But from day one--I was a human resources director. For 20
    years, this is my field. Employers have access to their workers
    from the minute that worker is hired. I mean, if the employer
    is any good, and smart, smart, smart, you know, is how you
    would say it, that employer has new employee meetings.
        And certainly they let their new workers know where they
    stand on unions, what they believe in as an organization. But
    more than that, day in and day out that employer has the
    opportunity to prove their workforce that they do not need
    third-party representation.
        That is up to the employer. They can either do it or not.
    And if they wait until the last minute, when they have been
    taking advantage of their employees or not treating them, you
    know, the way they ought to, then surprise, surprise. They are
    going to want somebody else to come in and represent them
    instead of the leadership of their company.
        So Mr. Hunter, you have said what you need to say about
    that and, you know, the accessibility. But we have been just
    making so much about how the board's proposed new rules will
    hurt employers if we do not change it with this bill by getting
    in the way of their ability to compete.
        Well, I would like to ask you how many jobs do you think
    the so-called Workplace Democracy and Fairness Act is going to
    create?
        Mr. Hunter. The only jobs it would create would be for
    people taking care of the warehouse full of paper for all the
    appeals that are going to wind up being filed in order to
    prevent workers from having the opportunity to organize.
        Ms. Woolsey. So what do you think? Walk us through just
    exactly do you think the employers would do if they have more
    time between filing a petition to organize and election? What
    do these employers need to do that they cannot do from day one
    when they hire their employees?
        Mr. Hunter. Well, I think what they have, if they have
    additional time after a petition has been filed, it is just
    like for all of you when you are in a--you know, you are in an
    election race, and what have you. Things ramp up. And if things
    ramp up for an excessive amount of time, where one party has
    all the power over the work life of the persons who are going
    to vote it tilts the playing field.
        Just as it does, each of you, when you conduct political
    campaigns. You reach out to people by phone, you reach out to
    them at home, you reach out to them through e-mail, and staff.
        Ms. Woolsey. So you said something I am getting the gist of
    what you are saying. So employers do reach out to their workers
    during an organizing campaign.
        Mr. Hunter. Oh, they do more than work. They do more than
    reach out.
        Ms. Woolsey. I know, I know. But they can use the e-mail,
    their e-mail list. They can use the personnel files. And they
    do.
        Mr. Hunter. Absolutely.
        Ms. Woolsey. Well, all right. So this excelsior list that,
    oh my, we might level the playing field by having the--allowing
    the union to have that same list.
        Mr. Hunter. Well, and keep in mind the union does not even
    have access to that Excelsior list in--until, with its hands
    bound and no access whatsoever, it manages to gather up
    signatures of 30 percent of the people, even without that. So
    it levels the playing field at that point, when the campaign
    begins, that they can at least reach out to people for whom the
    employer has been able to reach out from the day they started
    working.
        Chairman Kline. The gentlelady's time has expired.
        Dr. Roe?
        Mr. Roe. Thank you, Mr. Chairman.
        Last night, fairly late, Dr. DesJarlais and I got back from
    Afghanistan. And our last visit there was a forward operating
    infantry base not too far from the Pakistan border west of
    Kandahar. Those young people there were protecting our rights
    to have a free and fair election.
        I put on a uniform almost 40 years ago and left this
    country and left a family so that you would have a right to
    vote. As I have said in this committee hearing many times, I
    was elected by a secret election, the president was, the
    president of the unions are. And employees ought to have that
    same right to a free and fair election.
        And I think the NLRB, it looks to me like, is--should be an
    impartial referee so that no employer has an advantage nor an
    employee has an advantage during an election. And I think that
    is one of the things. In 31 years as an employer I never one
    time mentioned a union to my employees. Never came up.
        We--we talked about how to make our work better and more
    efficient. And Mr. Sullivan or Mr. Russell, either one of you
    can answer this. I am a physician, and we had--assisting the
    doctors, we had CNAs, registered nurses, LPNs. I have got
    venepuncturists, receptionists, imaging people, billing people,
    scheduling people.
        We have got M.D.s, D.O.s, nurse practitioners. So could any
    one of these--for instance, nursing assistants, LPNs or RNs--be
    a micro unit so that they could not go back and forth? We help
    each other and work together to do what? To provide better care
    for our patients, just as in a grocery store you need to
    provide services to the customer--me, when I come in to buy
    something.
        So would either one of you answer that, if you could.
        Mr. Hunter. Well, for the moment I will stay away from
    employees that may be professional employees. And maybe Mr.
    Russell could follow up a little bit on that. But for the most
    basic parts of your question--I am sorry. My mistake.
        I will stay away from professional employees for the
    moment, and maybe Mr. Russell could follow up on that. For the
    most basic parts of your question, the answer I think is
    clearly yes. That CNAs and related employees are vulnerable to
    being organized in very small blocks. And I do not know whether
    there are different shifts in the practice, but certainly by
    job classification or department absolutely.
        And not just in different bargaining units, but also
    potentially by different unions.
        Mr. Russell. I agree also with the first statement you
    made. That you never once talked to your employees about
    unions. Well, my grocery store client had no idea what to say.
    But here is what was going on behind the scenes. The union was
    doing something that, under the law, it is allowed to do.
        And that is to make promises. It can make any promises it
    wants to under the moon. It can say we are going to get you a
    dollar an hour increase, we are going to increase your
    benefits, we are going to give you job security. Now, none of
    those are promises that they can necessarily fulfill, but
    employees do not know that.
        Whenever the petition gets filed, the employer cannot make
    promises. There is a fundamental restriction on what employers
    can say. And that is what I train my clients on whenever this
    comes up, when they know about it. One of the things an
    employer cannot do is to make promises. It is against the law.
        If they say, ``Well, I promise you if you do not vote this
    union in, then I will give you a pay increase'' they just broke
    the law. The union could say the converse of that, and it is
    okay. So there is a fundamental difference in the
    communications here. That is why it needs to be fair for the
    employer to have an opportunity to get that information to
    employees.
        Mr. Roe. Mr. Cohen, I want to ask you a question you
    brought up just a minute ago. Right now, when employees have an
    opportunity to vote, it is occurring, on a median, within 4 to
    5 weeks. Unions win two-thirds of elections when they talk to
    employees.
        So this ought to be renamed, ``If It Ain't Broke, Don't Fix
    It Law.'' Because I do not know what problem you are trying to
    fix. To hurry something else, where people can get the
    information. Am I wrong on that?
        Mr. Cohen. No. Dr. Roe, I could not agree with you more.
    This is something which has become a well-oiled machine over
    decades. The general counsel who administers the regional
    offices has preached for years, and the regional offices have
    complied with, cutting back, cutting back, cutting back.
        We have reached a point where all we are left with is
    reasonable time frames. And it works, and it is the dual
    functions that the board has confronted us with in the last 4
    months that have created the havoc and the threat of litigation
    and appeals coming forth. It is unnecessary.
        Mr. Roe. Why do you think the board did that?
        Mr. Cohen. I think the board did it because they are trying
    to affect a union density issue. They see that unionization
    numbers are low, and they see the failed attempts that they
    have had before Congress in terms of changing the law. So they
    are changing the procedures instead.
        Chairman Kline. The gentleman's time has expired.
        Mr. Payne?
        Mr. Payne. Thank you very much. Let me just say that one of
    the last witness has said that companies cannot make promises.
    I guess you are right. However, every time there is a move on
    the part of organized labor to organize, companies may not be
    making promises, as you say. And I am not so sure that they do
    not whisper out some things.
        One thing, though, that do make clear is that you cannot
    make promises. However, let me make it clear, as they would
    say, that if we are unionized we are probably going to have to
    reduce our workforce. It is going to create problems, we think,
    in the future because there will be demands made for pension
    considerations, wages, et cetera.
        And so conversely, even though they may not have the
    opportunity to make promises. They certainly have the threat,
    and that is why so many union-organized efforts fail. There is
    no question that at one point they were 38 percent, 29 percent,
    30 percent of workers in this country we are organized. It is
    now down to 18 percent, 16 percent, 14 percent, and going down.
        Now there is no way in the world that you would have that
    reverse if it were not for the power of the companies to have
    unions that are already in--expired, but to win many of the
    cases where organization of labor strength.
        I mean, one large employer in my district, the company had
    anti-union material that was put into the bulletin boards which
    was locked and changed daily, where there were terrible things
    that were put out.
        Of course the argument was that it was the local workers
    who were opposed to the union that did it and it was not
    reflective of the company, to the point where I had the
    president of the company. So this is totally unfair.
        Matter of fact, a lot of derogatory stuff, caricatures I
    guess you can make through the computer. You can have
    caricatures that are very demeaning. And so we have seen the
    power of the company. And like I said, my point is that they
    may not be able to promise, but that big stick they have about
    what is the future once you organize is very, very powerful.
        Mr. Russell. Representative Payne, if I may respond to
    that, there are actually four things that employers cannot do.
    And it is summarized in the acronym TIPS. We keep it very
    simple for supervisors and managers, and it is very simple. And
    the T means threaten. You cannot Threaten, you cannot
    Interrogate, you cannot make Promises, and you cannot Spy or
    engage in surveillance.
        Mr. Payne. Let me tell you what they do. They threaten,
    they do all four of those things in their own way. Because it
    is a fierce fight, and I have been involved in seeing these
    fights go on. They do intimidate, matter of fact. They are not
    going to win unless they do it, and they do it.
        Mr. Russell. And it results in an unfair labor practice
    charge, which is something that could make a rerun election or
    overturn an election. So there is an incentive not to do it. I
    have had campaigns where we had no ULPs.
        Mr. Payne. Well, they find it to their advantage to do it
    because they have the wherewithal in most instances to have the
    upper hand.
        Let me just ask the questions. And I, too, commend you for
    your ribbon, and I support that, as did Woolsey.
        Mr. Russell. Thank you.
        Mr. Payne. Mr. Hunter, in your testimony you discussed how
    H.R. 3094 will result in the disruption of 75 years of board
    experience in configuring appropriate bargaining units. Can you
    explain how this legislation allows employers to gerrymander
    bargaining units for the purpose of defeating a union election?
        Mr. Hunter. Yes. At present, the act provides that the
    board can determine whether the appropriate unit is an employer
    unit, a craft unit, a plant unit, or a subdivision thereof. The
    way that has been taken out of the act in this bill, this bill
    then would have a set number of criteria, or tools, that are
    used to determine a community of interest and none other.
        And therefore, there is no ability for craft severance,
    which there has always been under the act. This would
    eviscerate the eight hospital units that have been created by
    rulemaking. And I did want to point that out in regard to the
    response that this would create micro units in private
    hospitals.
        That is absolutely incorrect. The only way that that can be
    disrupted in this bill, that the hospitals could be disrupted,
    would be if this bill passes and those rules that people have
    relied on for the last 20 years, in that case, would be out the
    window.
        And we would be back to the races on that, so it would
    totally disrupt the way bargaining units have always been
    configured.
        Mr. Payne. Thank you.
        Mr. Roe [presiding]. Time has expired.
        Dr. Bucshon?
        Mr. Bucshon. Thank you, Mr. Chairman.
        First of all, I would like to tell you, you know, my dad
    was a United Mine Worker for 37 years so I fully recognize the
    rights of workers under the labor laws of the United States,
    and have a great deal of respect for all workers in this
    country.
        What we are really talking about here is an overreaching
    and ideologically slanted NLRB. But let's look at the bigger
    picture. The Obama administration is again trying to put in
    place their ideological agenda they could not get through a
    Democratic-controlled Congress when they had control of
    everything.
        They could have changed the laws when they had the chance,
    and they did not do it. So I guess at that time they must have
    been fair. My friends on the other side of the aisle now are
    here defending the NLRB's actions, when they themselves would
    not pass laws to change what was in place.
        So the American people should take note again of the
    administration using unelected officials to change the laws of
    the land, bypassing your elected representatives in the
    Congress of the United States.
        Mr. Hunter, you use ``fairness'' a lot in a lot of your
    comments. And I am going to ask you a couple of yes or no
    questions. Do you think it is fair that after months of secret
    organizing behind the backs of employers, going to people's
    homes and getting everybody today on the side of a union
    activist, that the employer--again, after months of activity on
    the union activist side--has only 7 days to present their case
    before the NLRB?
        Do you think that is fair? Yes, or no.
        Mr. Hunter. Well, Congressman, I cannot answer that yes or
    no because I do not accept the premise that an employer would
    be unaware that----
        Mr. Bucshon. Okay. The other question I have, then. Do you
    accept the fact that, say, maybe an employee, not the
    employer--after months of union organizing which may not have
    involved them individually because they may not go the right
    way according to the union organizer--after months of
    organizing by the union activist, that the employee may only
    have 10 days to get all the facts before they have to vote?
        Mr. Hunter. Again, I cannot answer that for a couple of
    reasons. One, I do not accept the premise that they may only
    have 10 days. Even the board's rules do not provide anything
    about when a direction of election issue. So I have no idea
    when----
        Mr. Bucshon. But according to the proposals of the NLRB
    that may be the result, right? You may only have 10 days before
    you have to vote. Is that yes, or no?
        Mr. Hunter. I cannot answer that because I do not know.
        Mr. Bucshon. Okay, Mr. Cohen, maybe you can comment on it.
        Or actually, Mr. Sullivan, I would like you to comment on
    this. Do you think it is possible for an employer to get
    paperwork done in 7 days, and present their case in front of
    the NLRB? I mean practically possible.
        Mr. Sullivan. I do not think it is possible to do that
    adequately under the proposed rules. I think employers would
    have varying degrees and types of difficulty, depending mostly
    on their size and resources and sophistication. I think a small
    employer is going to have no idea what has hit him and is not
    going to stand a chance of complying with the rules, let alone
    identifying all legal and factual issues, all employees
    involved, and putting it all down on paper within 7 days, or
    forever being precluded from raising issues.
        As employers get bigger, their sophistication and resources
    probably increases. But the complexity of their organizations
    then makes the fact-finding much more difficult. And for RELA,
    they have got many very, very large organizations spread all
    over the United States, huge departments with subsidiaries. And
    just identifying who the appropriate employing unit is, who the
    supervisors are that know what the employees in question do
    day-to-day only for the proposed unit, let alone figuring out
    all of the other employees that really needed to be included in
    that proposed unit.
        I think it is virtually impossible.
        Mr. Bucshon. Thank you. I am running out a little. Mr.
    Russell, I heard Mr. Cohen's response to the question why now.
        Why now? Why, after many, many years of labor laws
    protecting employees and employers----
        Mr. Russell. Well, I agree with former member Cohen.
        Mr. Bucshon. Why would we change it now?
        Mr. Russell. I apologize. I agree with former member Cohen.
    It really is a matter of union density. It is a question of
    unions wanting to get some change in the law they think will
    help them. But one thing I want to make clear. There is a
    difference in the law from August 25th of this year to August
    26th.
        On August 25th, the law of the land for bargaining units
    was exactly what are the eight points in this bill. This bill
    is not changing the law of 75 years. It is going back to what
    it was on August 25. What happened on August 26 was that
    overreaching board favoring unions with Specialty Healthcare.
        Chairman Kline [presiding]. The gentleman's time has
    expired.
        Mrs. McCarthy, you are recognized.
        Mrs. McCarthy. Thank you, Mr. Chairman. And thank you for
    having this hearing.
        It has been interesting listening to this debate but, Mr.
    Hunter, I want to go back to some of the things that I
    personally find under the ruling of the Specialty Healthcare.
    They were saying that, you know, the nursing home owner--I
    believe Mr. Russell brought that case up--wanted to bring all
    the different units under one unit for the vote.
        If you are a nurse, if you are a nurses aide, if you are a
    specialty technician, they all have separate duties. They also
    work usually three shifts. All the others might be part of
    administration, might be part of housecleaning, might be part
    of food service. Their duties are totally different and their
    responsibilities are totally different.
        They are also trained totally different. So when you talk
    about--and Mr. Russell argued in his testimony--the Specialty
    Healthcare decision, the board abandoned longstanding
    precedent. However--and think about this--that the Specialty
    decision simply upheld the long-standing and additional
    community of interest.
        Meaning, you had those that were directly doing patient
    care, and then on the other side you had those that were part
    of the team of the hospital and nursing home, but certainly had
    no technical support as far as taking care of a patient. So is
    it not true that we have always had the community of interest
    test for determining an appropriate bargaining unit?
        Mr. Hunter. Well, the board always has had the community of
    interest test to determine appropriate unit. What happened in
    Specialty Healthcare is, subsequent to the National Labor
    Relations Board adopting rules that define bargaining units in
    acute care hospitals, there was some question as to how does
    one determine bargaining units in the nursing home sector, a
    discrete sector.
        And there was this rather untenable test that applied
    essentially only to nursing homes called the community of
    interest test. Or excuse me, called the ``empirical'' community
    of interest test, which essentially said, look apply community
    of interest, but keep in mind what we talked about and some of
    the comments we made when we did the health care rules.
        And nobody really knew what that meant. And that
    ``empirical'' community of interest test for nursing homes is
    essentially what was abandoned and overturned in Specialty
    Healthcare. It really has no effect whatsoever on any other
    industry because every other industry has always had a
    traditional community of interest test.
        And all this fear about micro units and what have you I
    think is just that--it is not going to play that way. There may
    be different unit configurations made, as there always are. But
    it is to say, for example, that Specialty Healthcare would have
    made Wheeling Island Gaming--which was the case about the poker
    dealers and blackjack dealers treated differently--the only way
    that would have been the case is if Specialty Healthcare said
    the CNAs on 2 North and 3 South can organize without including
    the CNAs on the other wards, and what have you.
        And one other thing I just do want to say in this whole
    process is, when people talk about the agenda of the board and
    what have you, you know, the board does go different ways when
    different administrations come in and what have you. And I have
    greatly disagreed with some of the positions that some
    boardmembers in other administrations have come up with.
        But I have already recognized that what they bring to the
    table is their life experience and what they bring to it. And
    the one thing that I never did is challenge the integrity of
    what they were doing when they made those determinations.
        And I do not think that we are going to do a very good job
    of having people being willing to commit to public service if
    we determine that if what they bring from their life experience
    to an administrative adjudication somehow should subject them
    to attack as if there were some sort of a moral issue involved
    in what they are doing, or that they are simply carrying water.
    I just----
        Chairman Kline. The gentlelady's time has expired.
        Mr. Rokita, you are recognized.
        Mr. Rokita. Thank you, Mr. Chairman. For the record, I just
    want to say that as a new member I am a little bit disturbed at
    the tone that this hearing has been taking, specifically with
    respect to a set of questions that was asked of Mr. Cohen.
        You know, my understanding is, this is not a trial. It is
    not a trial court. We are having this hearing so that we can be
    enlightened and learn something so that we hopefully have a
    better piece of legislation, or no legislation, that will help
    the people of this country. I mean, we should not be asking
    questions that we already know the answer to, Mr. Chairman.
        We should ask questions about subjects and topics to which
    we do not know the answer. To that extent, I would like to ask
    Mr. Cohen if he can elaborate on your earlier statement that
    100 percent of pre-election issues are reviewable by the board.
        Mr. Cohen. Yes. Congressman, under the system right now
    there is an opportunity to go to a hearing or to waive that
    right. In 92 percent of the cases, employers waive that right.
    If they do not waive that right, they have the right to go to a
    hearing. There can at least be a request for review filed of
    the regional director's decisions.
        Mr. Rokita. Okay.
        Mr. Cohen. That whole appeal period occurs very quickly and
    before the election is held. So any employer that wants to
    bring the matter to the board now has an opportunity to do
    that. Instead, what the quickie election rules would do would
    be to change that system dramatically and not have that kind of
    review.
        Mr. Rokita. How often does the time between the petition
    and the election exceed the 2 months? I just want to make sure
    that is clear on the record.
        Mr. Cohen. Sure. And there is some detailed statistics in
    my my testimony that I have furnished. But basically, pre-
    election waivers of hearing occur in 92.1 percent of the cases.
    In those where a hearing was held, the 7.9 percent--that was 37
    days from the filing of the petition until the regional
    director's decision--then we would have that review process,
    which is 25 days to 30 days thereafter.
        So in the small number of cases we get up around the 60-day
    period of time. And in terms of the board actually passing on
    this--and I served on the board, as you probably know--alerts
    come. And as the election is coming, in virtually all cases the
    board takes a position on the request for review.
        Mr. Rokita. So 35 days is reasonable, or unreasonable?
        Mr. Cohen. I think it is imminently reasonable.
        Mr. Rokita. Okay. I heard some, during some questioning
    earlier, there is, quote--``unfettered access'' from employers'
    access to employees. But, quote--``Of course, that has to be
    done in a legal way.'' And then I heard, quote--``access from
    day one'' in the questions.
        I want to know if Mr. Sullivan and Mr. Russell want to
    elaborate on that. Do you think those are accurate statements
    or accurate comments, Mr. Sullivan?
        Mr. Sullivan. Congressman, not in my experience. When
    employees come to work day one, of course they receive an
    orientation. And that consists of forms and getting them
    prepared to start doing their jobs. I have never, in almost 20
    years, encountered an employer that brought up its own views on
    unionization right at the get-go. I have just never seen that.
        Mr. Rokita. Okay, thank you.
        Mr. Russell?
        Mr. Russell. I agree. And also just one comment, if you do
    not mind. The questioning about the board's motivations is not
    a personal attack. When you look at Member Becker and Former
    Chair Leibman, they have stated that they believe the purpose
    of the National Labor Relations Act is to encourage
    unionization. What is troubling to me as a labor lawyer, as a
    labor professional, is if you read section 7 of the act it says
    that employees, citizens, have a right to either engage in
    those activities or not to engage in those activities.
        So I think it is very troubling, when we have someone
    sitting on that unelected board, the picks a side.
        Ms. Woolsey. Would the gentleman yield?
        Mr. Rokita. No.
        Mr. Rokita. Were you done? I have been enlightened enough.
        Mr. Russell. I was done.
        Mr. Rokita. Thank you. I yield back.
        Chairman Kline. The gentleman yields back.
        Mr. Hinojosa?
        Mr. Hinojosa. Chairman Kline and Ranking Member Miller, as
    a former businessman for 34 years, it seems to me that American
    workers need strong labor laws that protect their collective
    bargaining rights and encourage unscrupulous employers to
    create family-sustaining jobs in our economy.
        I am afraid that H.R. 3094 moves us in the wrong direction.
    I would like to ask my first question to Mr. Hunter. In your
    testimony, you discussed how H.R. 3094 will lead to elections
    being delayed for years, based on frivolous appeals for review.
    Can you explain how the prohibition on directing an election
    until a review is completed of post-hearing appeals creates
    unnecessary delay?
        Mr. Hunter. Yes. Essentially what this bill would do--as
    Mr. Cohen indicated the board would do--in a current situation,
    generally within a relatively short amount of time, it will
    decide whether it is going to take a review. And it does not
    take a review in 98 percent of the cases.
        What this will do is require review of every case. And even
    if the case involves a question as to whether one head cook in
    a thousand-member hospital is a straw boss or a supervisor, if
    that is what is up on appeal then the entire thousand-member
    unit is going to have to wait 2 years until that cut gets made.
        That is essentially what is going to happen. And as a
    practical matter, it is just going to deprive people of a
    meaningful right to organize.
        Mr. Hinojosa. Mr. Hunter, are workers to have full and fair
    elections undermined by this legislation? Explain your position
    on that.
        Mr. Hunter. Well, they absolutely are. Again, I think in
    the first instance there is the delay. But in the next
    instance, there is the fact that, as the Supreme Court has
    indicated, in the first instance it is up to the workers to
    take the initiative to decide what unit they want to organize
    themselves into. And under this bill, it will not be up to the
    workers.
        Because if the employer can show that you have some
    community of interest--and again, it is a sliding scale of
    common denominators--with the wider unit, then that is the unit
    that is going to prevail.
        And in many cases, quite frankly, if the union is
    organizing a particular traditional group, a traditional craft
    or a traditional technical unit, and the employer expands it,
    the petition will simply get dismissed because the union will
    not have submitted a showing of interest from that wider unit.
    And the proceeding will just be dead, at that point.
        Mr. Hinojosa. I would like to ask the next question of Mr.
    Sullivan. Is it not true that regardless of the election time
    frame, employers always have unrestricted access to employees
    during the work day and have the ability to conduct captive
    audience meetings.
        Mr. Sullivan. Congressman, I do not think that is a fair
    characterization. Employers are concerned with employees doing
    their jobs. They do not go after them in the workplace. And
    while they may have access to them, the amount of time that
    they devote to trying to educate employees about promises being
    made by unions and about what joining the union really means is
    very minimal overall in relation to the amount of time they
    spend----
        Mr. Hinojosa. I disagree with you, Mr. Sullivan. Your
    testimony suggests that the Specialty decision will result in
    more unions and make employers less attractive for takeovers.
    Yet takeovers generally result in layoffs, as employers combine
    operations or as they cut costs to pay for that takeover.
        Do the workers not have greater job security if their
    company is not taken over?
        Mr. Sullivan. It depends on the circumstances that the
    company is in at the time a takeover is being considered. These
    days there are a lot of companies out there that are not making
    it, but might get saved if they are acquired by a company that
    is performing strongly.
        And if the potentially acquiring, and saving, company looks
    at a situation where there are multiple, very small bargaining
    units, it is going to make that acquisition much less
    attractive. And the potential acquirer may well walk away,
    resulting in loss of the business and the jobs.
        Mr. Hinojosa. Your answer----
        Chairman Kline. The gentleman's time has expired.
        Mrs. Roby?
        Mrs. Roby. Thank you, Mr. Chairman.
        I want to give you, Mr. Cohen, an opportunity to go back
    and address some of the testimony that we just heard from Mr.
    Hunter. He made the statement that Wheeling Island Gaming, if
    that had been the law, that a can on one floor in one unit
    could not collectively bargain with a CNA in another unit.
        Can you expand on that? I wanted to give you an opportunity
    to respond.
        Mr. Cohen. Thank you very much, Congresswoman. I could not
    disagree more with the characterization of that. As I said, in
    Wheeling Island Gaming the minority view was that as long as
    the union asks for all of a particular classification of
    employee at a particular facility that there is no reason why
    that should not be appropriate.
        What the board did is, they took a health care case as a
    vehicle, an excuse, to take that position that was in the
    minority position, dress it up around the community of interest
    standard, and apply it to virtually all of the NLRB's
    jurisdiction and the normal NLRB's jurisprudence.
        If I could? In fact, we hear a parade of potential
    horribles that would occur in terms of litigious employers, et
    cetera if this legislation were to pass. Quite simply, from
    where I sit, if the board were to take two simple actions--if
    they were to overrule Specialty Healthcare and if they were to
    withdraw the proposed notice on quickie elections--there would
    be no need for the legislation to be changed.
        We would have the law as it functions, we would continue to
    have a miniscule amount of cases where the board grants review,
    and we now have all-time lows in employer challenges to union
    certifications in the courts. It did not always used to be like
    that. I worked in that part of the NLRB, as well.
        It used to be a substantial function of the NLRB
    enforcement lawyers. It is not any longer.
        Mrs. Roby. Well, and that goes to my next question, and
    thank you for your classification on that.
        My next question for you, Mr. Sullivan, as it relates to
    the Specialty Healthcare decision. I had the opportunity just a
    few short weeks ago to talk to, on the record, one Mrs. Ivey,
    who came in and testified before this committee. And her
    company voluntarily chose to allow the union. And as a result,
    she was unafforded the opportunity to vote which, as you know,
    represents everything that this great country stands for.
        So I just want to ask you a very specific question. How
    does the Specialty Healthcare decision affect whether or not an
    employer will just raise their hand and voluntarily decide to
    allow?
        Mr. Sullivan. Congresswoman, that is a great question. And
    I think, yet again, it depends on the circumstances of the
    employer. I think for very small employers, if they look at the
    situation that they are in and if they talk to legal counsel
    and say what is this going to cost me and what are my chances,
    they are going to throw their hands up and say, ``Okay, I will
    recognize the union.''
        And, in light of other recent NLRB precedent, an employee
    in the situation you are describing will find herself with no
    avenue to file her own petition seeking to have a secret ballot
    election. Because that decision will have been made----
        Mrs. Roby. For her.
        Mr. Sullivan [continuing]. By an employer. Essentially
    forced into it due to these recent changes. Larger employers
    will have a decision to make, and that decision is going to be
    do I challenge this or do I see my business chipped away and
    harmed. And so employers will make a strategic decision based
    on their own situation and their resources.
        And they may very well go through the process, and then
    refuse to bargain and accept defense of an unfair labor
    practice charge in the hopes of getting, some day, court
    review.
        Mrs. Roby. Right. Thank you for that.
        And just real quickly, Mr. Cohen, let us talk about that
    meaningful purpose from the Gaming decision. Expand on that,
    just a little bit, about how important that is for the employee
    to have that 35 days in order to educate him or herself as to
    whether or not joining a union is in their best interest as an
    employee.
        Mr. Cohen. Sure. It is a complicated world in which all
    employers are operating now. We are in a global economy,
    whether we like it or not. It is fine if employees choose
    representation. That is their right guaranteed under the law.
    But they have to do it, in all fairness to them, in a context
    of knowledge and to learn the state of the business.
        If I can for a moment, we have heard so much about access
    to employees. I would submit that of course employers have
    unfettered access to their employees during work time. They are
    the employer. There is nothing out of the norm in having that.
    And most employers get employees together regularly to learn
    about the state of the business, to deal with safety issues, to
    hear about the economy and means of production which can be
    improved through cross-training and making the operation more
    efficient.
        Chairman Kline. I am sorry, the gentlelady's time has
    expired.
        Mr. Kildee?
        Mr. Kildee. Thank you, Mr. Chairman. I apologize first for
    being late. I had another hearing in another building.
        Mr. Hunter, in 1937 General Motors and the UAW reached a
    one-page agreement that recognized the UAW as the exclusive
    bargaining representative for GM employees who were members of
    the union. I have always had a copy of that hanging on my wall.
    One page, signed by John. L. Lewis and Mr. Knutson, the CEO of
    General Motors.
        That was very simple in those days. They agreed on a
    contract, and it went in effect for the members of the union.
    There was only one other union in General Motors at that time,
    the pattern makers. But it was just the UAW who were recognized
    then.
        How will the Workplace Democracy and Fairness Act primarily
    make more difficult the ability to workers to establish a
    contract with their employer? What is the deterrents that cause
    the greatest difficulty?
        Mr. Hunter. Well, Congressman, I think the primary
    deterrents will be the inability of the union to obtain legal
    recognition for such a long period of time. That by the time it
    is able to get an election, that organizing drive would have
    been torn apart by an employer.
        Secondly, if the employees lose all say over what
    bargaining unit can be established that can be taken away, they
    will never reach a contract because they will never have a
    bargaining unit that they can meaningfully bargain in.
        So I think that is the difficulty. That if workers have a
    prompt and efficient ability to organize into appropriate units
    that they petition for--and the legal process is not jammed up
    with delays and stuff--they then will have the legal right, and
    the employer will have the legal obligation to bargain with
    them.
        But unless that happens, getting a contract just is not
    happening.
        Mr. Kildee. Can you give us some examples of how long this
    process could take, has taken, or could take under this bill?
        Mr. Hunter. Well, first of all, in the initial thing you
    will have a hearing in which you are literally allowed to
    litigate anything you want. So, for example, it has been the
    law forever that you cannot litigate unfair labor practice
    charges in a representation hearing because it is supposed to
    be a nonadversarial hearing.
        This law would mandate that it be a nonadversarial hearing,
    and then also mandate that you can raise any issue you want
    to--whether it is, you know, people ought to vote against the
    union because, the plant manager has always been good to them,
    or they should vote this way because this is unfair or because
    these unfair labor practices are going on, or it might affect
    the outcome of the election how their wages compare to other
    people.
        So that can all be throw into that hearing. So that hearing
    literally would go on forever. And then on top of that, they
    have an absolute appeal. So that you not only have an appeal in
    100 percent of the cases, but you have a record going up on
    appeal that is jammed up with all kinds of issues that have
    absolutely nothing whatsoever to do with whether or not there
    is an appropriate unit.
        And I disagree with Mr. Cohen with the characterization
    that you get review 100 percent of the time. You have a right
    to an initial hearing 100 percent of the time, but you do not
    have a right to review. And review is granted in less than 2
    percent of the cases.
        If this becomes law, you are going to have hearings that go
    on forever. You are going to have records that make the court
    reporters happy. And then you are going to have the process at
    the NLRB in Washington totally jammed up with those records.
        Chairman Kline. Then gentleman's time has expired.
        Mr. Walberg?
        Mr. Walberg. Thank you, Mr. Chairman. And I appreciate the
    panel being here.
        Mr. Sullivan, Michigan is the proud home to Myer retail
    store. It has 190 stores, 60,000 people in five states, several
    stores, and many of the people in my district. This Specialty
    Healthcare would have serious implications for our fundamental
    business model I just have to imagine.
        At a time when Michigan's unemployment rate is at 11.2
    percent, and the heart of my district hovers around 15 percent
    unemployment. I guess I want to go to the issue of jobs and,
    specifically, what kinds of costs would be associated with
    dealing with micro bargaining units as permitted by Specialty
    Healthcare.
        And then secondly, what will be the impact on job creation
    in the stores and retailers that you represent?
        Mr. Sullivan. Congressman, the cost of dealing with micro
    unions with, with multiple organizing campaigns targeted at
    small groups of employees, is hard to imagine. Obviously, it
    would depend on exactly the approach the employer takes.
        But first of all, it would be an enormous distraction at
    many levels of management. And to tie into the job creation
    idea, it is pretty hard to think about expanding a business,
    potentially buying more stores, if you are getting picked apart
    by having single departments organize over and over. I think
    the potential is just enormous, and it is not good.
        Mr. Walberg. The impact, as I think of specific jobs, if
    you have micro units with restrictions on cross-training, what
    is it this says to the individual who begins at a certain level
    in a store, wants to expand, wants the opportunity to grow into
    a job situation and, ultimately, further themselves?
        I mean, we are talking about jobs and the ability to go to
    a place and say, ``I would like to ultimately be in
    management.'' By going through all the processes, what does
    this do?
        Mr. Sullivan. Well, it hinders the process. And I think the
    impact is felt at many levels. If you have got an ambitious
    person who would like to work in all of the departments in the
    store and progress into management, the ability to go between
    departments could become nonexistent.
        And then when you think about the day-to-day impact on
    employees, regardless of their ambitions, to have to work in
    the floral department and only the floral department all day
    long and not be able to help stock cans on shelves when needed,
    I think would be demoralizing. I think you would have boredom
    and stagnation.
        So I think the ambitious employees would be held back, and
    everybody else's quality of job experience would suffer. And I
    think that would come through to the customers. And that is an
    enormous concern. Because I have seen grocery store chains fold
    after a year of customer dissatisfaction, and people start
    shopping somewhere else.
        Mr. Walberg. Going further along that line, it seems to me
    the only way this adds jobs to the economy is by forcing
    retailers to hire more lawyers. And no offense to the lawyers
    in the room, at least not intended. The human resource staff to
    deal with all of the management nightmare. And the case of
    retailers, this is at a time when you really need the economy
    to pick up and be strong.
        Is there any sense of how destructive this will be across
    your business from distribution center to the store itself?
        Mr. Sullivan. Well, distribution centers are equally
    vulnerable to having small units organized. There are many
    different functions under a warehouse roof, from shipping and
    receiving clerks to inventory control. There are selectors who
    pick the boxes off the shelves. There are forklift operators.
    There are people who load and unload trucks.
        And under Specialty Healthcare, every one of those jobs
    that I just stated is potentially a separately organized
    bargaining unit.
        Mr. Walberg. Okay.
        Mr. Cohen, turning to an attorney, I noticed that you were
    responding by writing some fast notes at the end of the last
    questioning. I would like to give you an opportunity to share
    those with us.
        Mr. Cohen. Sure. Thank you very much. It has to do
    primarily with this notion of what goes on at a hearing. We
    have 60 years' worth of jurisprudence as to what is permissible
    to raise at a hearing or not. I believe it is a total red
    herring to say that we are going to have representation
    hearings deal with employees thoughts about whether a union is
    a good idea or not.
        Hearings are limited. The people in the regional offices of
    the NLRB know what they are doing. They hold these hearings.
    They do not permit irrelevant items to be raised in it. And the
    precise issues at a hearing have to do with unit scope and unit
    composition.
        Chairman Kline. Then gentleman's time has expired.
        Mr. Tierney?
        Mr. Tierney. Thank you, Mr. Chairman. You know, I am sort
    of amused sometimes by my colleagues on the other side who
    think they first have to immunize themselves by saying how
    closely affiliated their families re with unions, and then they
    jump in to attack.
        But if it matters at all, I am a former president of the
    Chamber of Commerce. So this will be a man-bites-dog story on
    the other side on that. [Laughter.]
        And the other is, one of my colleagues, who unfortunately
    left here, was chastising us all because we are not asking
    questions just to get the facts, we seem to be predisposed. It
    would be wonderful to ask questions to which we could get the
    answers if we had a panel here that was not predisposed and not
    biased. And I do not think that that is the case.
        So I think maybe it is important in asking the questions to
    understand where our witnesses are coming from so we can put
    them into some sort of perspective on our own. So Mr. Sullivan,
    let me start with you. I understand that you are a professional
    advocate on behalf of business interests.
        Easily recognized and, according to your own testimony, you
    do a wonderful job advocating for your clients. But we are
    being asked here to consider legislation that makes it harder
    for working people who want to form a union to have an
    election. So I want to probe a little bit more into the
    rhetoric that you use in your testimony.
        I want to see whether or not that is supported by the
    facts. In your written testimony, you have got a whole section
    dedicated to micro unions. I think that anybody who reads
    Specialty Healthcare would think it was about CNAs, CNAs who
    want to form a union. Maybe those who read it that way missed
    something.
        Will you point out to me the page in the Specialty majority
    opinion where you see the term ``micro union?''
        Mr. Sullivan. Congressman, that term is not in the opinion.
        Mr. Tierney. No, I did not see it there either, and that
    is----
        Mr. Sullivan. It is the effect that would----
        Mr. Tierney. Well, maybe you can help me then with
    understanding your rhetoric on that. How big, in your mind, is
    a micro unit, specifically?
        Mr. Sullivan. Well, CNAs alone--and not including other
    employees, nonprofessional employees, working in a nursing
    home--in my opinion, is a micro union.
        Mr. Tierney. All right. So Specialty Healthcare, that issue
    has 53 CNAs. So 53 is a micro union, in your mind.
        Mr. Sullivan. It is a micro union because it consists of a
    single job classification.
        Mr. Tierney. Well, it is what you determine as a micro
    union. Fifty-three.
        Mr. Sullivan. The term does not depend necessarily on the
    number of employees in the unit. It depends on the isolation of
    the unit from other employees that have a similar community of
    interest.
        Mr. Tierney. So it is your contention that janitors and
    other people had a similar community of interest with the CNAs?
        Mr. Sullivan. That was the position I think the employer
    took in Specialty Healthcare.
        Mr. Tierney. I know. And it is your position to advocate
    for the employer. But over the last decade, the median size of
    units in bargaining range from 23 to 26. So let me ask you
    whether or not 23 employees is a micro union.
        Mr. Sullivan. I cannot answer the question in those terms,
    Congressman. I can tell you that I have been involved in
    negotiating contracts, first contracts, after campaigns for
    nursing home employees in my career. And I can also tell you
    think when unions have petitioned to recognize employees,
    including CNAs in nursing homes that I dealt with, every single
    one of those elections proceeded under an agreement.
        We did not go to hearing on one of them. And that was
    because that I knew the rules and worked with the union, and we
    were able to hammer out an agreement.
        Mr. Tierney. I do not want to interrupt you, but I do not
    know where you are going with that. But it does not deal with
    the issue. This rhetoric that you have had of micro unions, it
    just sounds to me like a lot of rhetoric and it is not even
    mentioned in the decision.
        But let us move on. Your testimony also claims that the
    board's proposed rule would remove board agents from the
    process, and result in fewer elections by agreement. When you
    read that proposed rule, I think you would be hard pressed to
    see how the board's been removed from the process.
        But you also claim in your testimony that the board wants
    to remove its board agents from the role of developing a record
    on the representation issue. Now, just to be clear, if you read
    the rule what it says is that it is the duty of the hearing
    officers to create an evidentiary record concerning only
    genuine disputes as to material facts. That is on page 36822 of
    the Federal Register.
        So let's get it straight. Are you taking the position that
    board agents should have to create a record where there are not
    genuine disputes as to material fact?
        Mr. Sullivan. Excuse me, Congressman. What I mean by
    removing the board agents from the process is that today----
        Mr. Tierney. No, but my question to you is whether or not
    you take the position that board agents should have to create a
    record where there are not genuine disputes as to material
    fact.
        Mr. Sullivan. That is not what I am saying.
        Mr. Tierney. That is not your position. Is it your position
    that employers should be able to bog down the hearing with
    frivolous claims?
        Mr. Sullivan. Not at all.
        Mr. Tierney. Thank you.
        Mr. Russell, let me just look to your for a second here. In
    February of 2009 you presented a conversation, or a talk,
    entitled ``Staying Union-Free in a Pro-Union World--A Special
    Management Briefing.'' And you presented that to the Florida
    Transportation Builders Association Contractors Construction
    Industry conference.
        In this PowerPoint for the Costangy law firm, you are
    stated that you are a labor employment lawyer for business, and
    that you help businesses stay union-free. Is that how you see
    your role as a businessperson? Your job is to help businesses
    stay union-free?
        Mr. Russell. That is correct Congressman--whenever the
    client requests. That is correct. When the clients request that
    service, I do provide it. I do it by the ways I have described
    today. Providing information to my clients.
        Mr. Tierney. Look, I just wanted to make it clear who we
    are dealing with here----
        Mr. Russell. Correct. By providing information to my
    clients that they----
        Mr. Tierney. You also----
        Chairman Kline. The gentleman's time has expired.
        We have had an opportunity for all members to ask
    questions. I want to thank the panel, and I will turn to Mr.
    Miller for his closing remarks.
        Mr. Miller. Well, thank you, Mr. Chairman. I would just
    sort of pick up where Mr. Hunter left off. And that is that it
    is hard to see how you keep out the issues that Mr. Cohen has
    suggested would never be raised. Because, in fact, the language
    in your bill suggests that all of these issues can be raised in
    these hearings, and any other issue resolution which may make
    an election unnecessary or which reasonably is expected to
    impact an election's outcome.
        And then during that hearing, parties may independently
    raise any issue or assert any position any time prior to the
    close of the hearing. And since you must now have that hearing
    as a matter of law, it is not the discussion of the board. It
    is the law, and that review will take the review of the post
    hearing appeals.
        It seems to me that you have done exactly what many have
    sought to do over the years. And that is to basically prevent
    the National Labor Relations Board from providing a remedy to
    the rights for which it was designed and brought into being to
    protect.
        It is very clear in section 1 of the Act, when it says ``to
    eliminate the causes of certain substantial obstructions to the
    free flow of commerce, and to mitigate and eliminate these
    obstructions, where they have occurred, by encouraging the
    practice and procedure of collective bargaining, and by
    protecting the exercise by workers of full freedom of
    association, and self-organization,'' and so forth.
        I mean, that may sound as an anachronism or something that
    does not fit in today's globalized economy. But the fact of the
    matter is, that is how workers get rights at work. That is how
    workers get a safe workplace, that is how they get a decent
    wage, that is how they get decent hours, decent benefits, and
    decent conditions.
        And now what you are setting in motion is a review process
    and a hearing process that when it has been invoked in a
    limited number of cases it is an average where the elections
    have been held, the ballots have been impounded. And now you
    have the review.
        It sees, on the average, some 500 days over the many years
    of that review. And we all know that this is a competition
    between holding that potential bargaining unit together, and
    fracturing it. And so time is on the side of those who would
    want to fracture it. Because employees get promoted, employees
    leave, they get other opportunities elsewhere.
        They move, they get divorced, whatever happens in their in
    their lives. And that works to whittle away the unity that
    those members might have had. The idea that actions are never
    taken against them, they are not intimidated? They are
    intimidated all the time. That is what all those cases are
    about on unfair labor practices.
        People are fired all of the time, and they get back pay if
    they are successful some years later getting rehired by their
    employer after the determination of that case. These actions go
    on all the time. And so now what you have set up is the perfect
    storm between raising frivolous cases, invoking the legal
    resources of the board, and swamping them now with hearings.
        And then reviews of those hearings so the opportunity to
    get the collective bargaining rights that are provided for in
    the establishment of the National Labor Relations Act are
    eviscerated by this legislation.
        That is consistent with the opinion of most of the members
    on the other side of the aisle here. That is what they would
    like to do. They see no reason for this Board to continue, or
    the act to continue. And yet it is absolutely critical to
    employees having some bargaining power in the workplace, to
    hold on to the foothold that they might have in middle class.
        And we obviously know that the benefits of that go even to
    those employees who are not in the unionized workplace. But
    that process continues to support their wages, their benefits.
        So, Mr. Chairman, I would hope that this legislation would
    undergo extensive revision if we are going to consider it. But
    I really believe that it really, really strips the rights of
    workers under the laws that have served both employers and
    employees well for many, many years is--now at risk of being
    destroyed by this this legislation. Thank you.
        Chairman Kline. I thank the gentleman. I have been given
    three letters in support of H.R. 3094. I would ask you now for
    consent that those be inserted in the record. Hearing no
    objection, the letters----
        [The information follows:]

                                                      October 11, 2011.
    Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
    Education and the Workforce Committee, U.S. House of Representatives,
            Washington, DC 20515.
        Dear Chairman Kline and Ranking Member Miller: On behalf of
    Associated Builders and Contractors (ABC), a national association with
    75 chapters representing 23,000 merit shop construction and
    construction-related firms with nearly two million employees, I am
    writing in regard to the full committee hearing on the Workforce
    Democracy and Fairness Act (H.R. 3094).
        ABC supports the Workforce Democracy and Fairness Act, which would
    block the National Labor Relations Board (NLRB) from moving forward
    with its ``ambush'' elections proposal and also reverse the Board's
    recent decision in Specialty Healthcare.
        For more than a year, the NLRB has moved forward with an agenda
    that is creating an environment of economic uncertainty and threatening
    to harm the construction industry. The NLRB's decisions, proposed
    rules, invitations for briefs and enforcement policies demonstrate that
    the agency has abandoned its role as a neutral enforcer and arbiter of
    labor law in order to promote the special interests of politically
    powerful unions. These actions will have negative implications for
    workers, consumers, businesses and the economy, including:
     ``Ambush'' elections
        In August, ABC criticized a NLRB proposed rule that could
    dramatically shorten the time frame for union organizing elections from
    the current average of 38 days to as few as 10 days between when a
    petition is filed and the election occurs. ABC submitted comments to
    the NLRB stating the proposed rule would significantly impede the
    ability of construction industry employers to protect their rights in
    the pre-election hearing process; hinder construction employers'
    ability to share facts and information regarding union representation
    with their employees; and impose numerous burdens without any reasoned
    justification on small merit shop businesses and their employees, which
    constitute the majority of the construction industry. In the largest
    response on record, the NLRB received more than 70,000 comments, many
    of which strongly opposed the proposed changes.
     Specialty Healthcare and Rehabilitation Center of Mobile and
            United Steelworkers
        In an August 30 decision, the Board ruled that a union could seek
    to organize a group of nursing assistants, despite requests by the
    employer to include other employees in the unit. The decision
    effectively creates a new standard for bargaining unit determinations
    for all industries. This reverses a standard that has been in place for
    decades without controversy. The new standard places a heavy burden of
    proof on the employer to show that the excluded employees should be
    included.
        At this time of economic challenges, it is unfortunate that the
    NLRB continues to move forward with policies that threaten to paralyze
    the construction industry and stifle job growth. We commend the
    committee for holding a hearing on this important matter and urge
    immediate passage of the Workforce Democracy and Fairness Act (H.R.
    3094).
                Sincerely,
                           Corinne M. Stevens, Senior Director,
         Legislative Affairs, Associated Builders and Contractors, Inc.
                                     ______

                                    ------

                                                      October 12, 2011.
    Hon. John Kline, Chairman,
    Committee on Education and Workforce, U.S. House of Representatives,
            Washington, DC 20515.
        Dear Chairman Kline: On behalf of the National Association of
    Manufacturers (NAM), I am writing to express manufacturers' strong
    support for H.R. 3094, the Workforce Democracy and Fairness Act.
        The NAM is the nation's largest industrial trade association,
    representing small and large manufacturers in every industrial sector
    and in all 50 states. The NAM's mission is to enhance the
    competitiveness of the manufacturing economy by advocating policies
    that are conducive to U.S. economic growth.
        The recent actions and the decisions of the National Labor
    Relations Board (NLRB) demonstrate the Board's commitment to pursue an
    activist agenda that threatens economic growth and jobs. This agenda
    would burden manufacturers with harsh rules, making it harder to do
    business in the United States. If enacted, the Workforce Democracy and
    Fairness Act would restore the balance needed to ensure employees
    receive the information they need to make an informed decision and give
    job creators the certainty they require to be confident in hiring and
    expansion.
        According to the NLRB's proposed ``ambush election'' rule,
    employers would have as few as 10 days to communicate with their
    employees between the time they learn that a union is trying to
    organize the workforce and the election. This proposed rule represents
    a dramatic shift in union election procedures that have stood for
    decades. If finalized, this new regulation would pose a considerable
    burden on employers and limit the ability of employees to make an
    informed decision on joining a union.
        Additionally, the Board's decision in the Specialty Healthcare case
    represents the most dramatic change in labor law in 50 years. The
    decision sets forth a new standard for determining which group or
    ``unit'' of employees will vote in the union election. These ``micro-
    unions'' could cripple an employer's ability to manage operations in an
    effective way, resulting in a manufacturing facility with separate
    unions representing custodial staff, assemblers, and fitters. We
    believe this decision will unnecessarily divide employees and place an
    extraordinary burden on employers.
        Your bill, by guaranteeing an employer's ability to participate in
    a fair union election process by establishing a 14 day timeframe for an
    employer to prepare a case to be heard by the NLRB and establishing no
    union election will be held in less than 35 days, ensures employees are
    able to make fully informed decisions about joining a union. Your bill
    would also correctly reestablish decades of law, reinstating the
    standard by which employees vote in the union elections and preventing
    the possibility of several ``micro-unions'' at one facility.
        We look forward to continue working with you on our shared goals
    for a strong economy, job creation and promoting fair and balanced
    labor laws. Thank you for bringing the Workforce Democracy and Fairness
    Act forward in the Committee. I urge its swift enactment.
                Sincerely,
                                   Joe Trauger, Vice President,
                                                Human Resources Policy.
                                     ______

                                                      October 14, 2011.
    Hon. John Kline, Chairman; Hon. George Miller, Ranking Member,
    Committee on Education and the Workforce, 2181 Rayburn House Office
            Building, Washington, DC 20515.
    RE: Committee Hearing on H.R. 3094 ``The Workforce Democracy and
            Fairness Act''
        Dear Sirs: We are writing to express the strong support of HR
    Policy Association for H.R. 3094, ``The Workforce Democracy and
    Fairness Act'' (``Act'' or ``legislation''). We are very concerned with
    the National Labor Relations Board's recent activity including the
    issuance of the proposed regulation regarding representation case
    procedure\1\ and the Specialty Healthcare decision.\2\ This legislation
    targets and would remedy the serious problems associated with the
    proposed rule and the Specialty Healthcare decision and would provide
    greater freedom of choice and protections for employees in union
    elections. We respectfully request that this letter be included in the
    hearing record.
    ---------------------------------------------------------------------------
        \1\ 76 Fed. Reg. 36812.
        \2\ 357 NLRB No. 83 (August 26, 2011).
    ---------------------------------------------------------------------------
        HR Policy Association is a public policy advocacy organization
    representing chief human resource officers of major employers. The
    Association consists of more than 330 of the largest corporations doing
    business in the United States and globally, and these employers are
    represented in the organization by their most senior human resource
    executive. Collectively, these companies employ more than 10 million
    people in the United States, and their chief human resource officer are
    generally responsible for employee and labor relations for their
    respective companies.
        The legislation would establish minimum time frames for union
    representation elections that would closely approximate the current 38-
    day median rejecting the NLRB's recently proposed election rules that
    could result in elections being held in as few as 10 days, giving
    employees little time to hear the employer's position as well as that
    of their co-employees. The bill also preserves existing procedures that
    enable the NLRB to sufficiently determine which employees should be
    included in the unit that the union would represent. Finally, the bill
    would overturn the recent Specialty Healthcare decision, which will
    result in fragmented workplaces where unions can represent extremely
    small groups of employees (e.g., the cashiers in a retail setting) even
    where their interests coincide with the broader workforce.
        The Board's recent actions including most prominently the proposed
    regulation dramatically shortening the time for union elections, and
    the Specialty Healthcare decision which encourages micro-units in the
    workplace, all serve to disrupt the workplace and undermine and hinder
    job growth and economic recovery. We applaud your Committee for holding
    a hearing on The Workforce Democracy and Fairness Act and urge Congress
    to pass the Act. What follows are the Association's concerns regarding
    the proposed election regulations and concerns related to the recently
    issued Specialty Healthcare decision, which the legislation would
    remedy.
    I. NLRB's Expedited Election Rules Would Curtail Employees' Ability to
            Make a Fully Informed Decision on Union Representation
        Election Data Indicates Proposal is a Solution in Search of a
    Problem. In a statement issued in conjunction with publication of the
    rules, NLRB Chairman Wilma Liebman states that, despite some
    improvements over the years, ``the current [election] rules still seem
    to build in unnecessary delays, to encourage wasteful litigation, to
    reflect old-fashioned communication technologies, and to allow
    haphazard case-processing.'' Yet, the case is not made in the proposal
    for this apparent breakdown. Indeed, in his dissent, NLRB Member Brian
    Hayes cites NLRB data to show that the vast majority of elections
    proceed in a very expeditious manner. Currently, the NLRB's internal
    objective in representation cases is to complete elections within 42
    days of the filing of the petition.\3\ However, in 2010, the regional
    offices exceeded this objective, completing initial elections in
    representation cases in a median of 38 days from the filing of the
    petition. Citing BNA data, Member Hayes adds: ``Inasmuch as unions
    prevailed in 67.6 percent of elections held in calendar year 2010 and
    in 68.7 percent of elections held in calendar year 2009, the percentage
    of union victories contemplated by the majority in the revised rules
    must be remarkably high.'' \4\ H.R. 3094 recognizes that the
    longstanding existing election procedures are wholly adequate.
    ---------------------------------------------------------------------------
        \3\ NLRB General Counsel, Summary of Operations (Fiscal Year 2010),
    GC. Mem. 11-03, at 5 (January 10, 2011).
        \4\ ``Number of NLRB Elections Held in 2010 Increased Substantially
    from Previous Year,'' Daily Lab. Rep. (BNA), No. 85, at B-1 (May 3,
    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, the
    Association recommends ``involvement of essential stakeholders in the
    formulation of new employment policies'' (i.e., through a process of
    negotiated rulemaking) as a solution to the problem of existing rules
    failing to reflect the realities of the workplace. Instead of being
    formulated through a collaborative process, employment regulations
    often simply implement the wish list of a powerful interest group.
    Moreover, President Obama's Executive Order 13563 specifically states
    that ``[b]efore issuing a notice of proposed rulemaking, each agency,
    where feasible and appropriate, shall seek the views of those who are
    likely to be affected, including those who are likely to benefit from
    and those who are potentially subject to such rulemaking.'' While
    independent agencies like the NLRB are not required to comply with the
    Executive Order, they should operate within its spirit, particularly in
    a highly sensitive matter like union representation elections, where a
    number of interests are affected. As Member Hayes notes in his dissent,
    there were a number of ways of involving the affected stakeholders in
    this process, including negotiated rulemaking or, at the very least,
    receiving comment by the Board's standing Rules Revision Committee and
    by the Practice and Procedures Committee of the American Bar
    Association. Indeed, some of the proposed changes, such as allowing the
    electronic filing of key documents with the Board, have not generated
    significant opposition and, as part of an overall collaborative
    process, could be part of a package of welcome improvements to the
    Board's election procedures.
        Curtailing Employee Access to Essential Information Before Voting.
    The Workforce Democracy and Fairness Act would reject the Board's
    proposed ``hurry up and vote'' procedures, under which employees will
    be denied critical information in making an informed decision regarding
    whether to be represented by a union--a decision that in the vast
    majority of situations is, as a practical matter, a permanent one that
    will bind not only the voting employees but later hires as well. Under
    the proposed regulations, there are two critical areas where key
    information will be limited or curtailed:
         Shorter Campaign Periods. While the proposed rules do not
    identify a specific time target, a key provision in the changes
    requires the NLRB regional director to set the election at ``the
    earliest date practicable.'' Member Hayes estimates that the changes
    will result in elections between 10 and 21 days. This is far shorter
    than the current 38 day median (within which, as BNA data indicates,
    unions win 2 of every 3 elections already), which is itself a
    considerably shorter period already than voters have in deciding
    whether a candidate will represent them for 2, 4 or 6 years in
    Washington. In most cases, this gives employees ample opportunity to
    hear not only from their employer but to discuss the issues among
    themselves. Both the Board and the U.S. Supreme Court have recognized
    that Federal labor policy favors ``uninhibited, robust, and wide-open
    debate in labor disputes'' and that the enactment of Section 8(c)
    ``manifested a congressional intent to encourage free debate on issues
    dividing labor and management.'' \5\
    ---------------------------------------------------------------------------
        \5\ See Chamber of Commerce of the United States v. Brown, 554 U.S.
    60, 60-68 (2008); Franzia Bros. Winery, 290 N.L.R.B. 927, 932 (1988).
    Section 8(c) of the National Labor Relations Act protects an employer's
    right to communicate with employees regarding unions and representation
    issues.
    ---------------------------------------------------------------------------
         Not Knowing Who Else the Union Would Represent. In seeking
    to expedite the election process, the proposed rules would eliminate
    pre-election proceedings in certain situations where the employer
    disputes the union's claim of which employees will vote upon and
    potentially be represented by the union. Currently, the Board will make
    a ``unit determination'' in those situations before the employees vote.
    The dispute may be based on different job classifications or, as
    discussed below, whether certain employees are exempt supervisors and
    therefore excluded from the voting and the representation. The proposed
    rules provide that, where the disputed group of employees involves
    fewer than 20 percent of the total number, all employees are to vote
    anyway, with the votes to be counted after the unit determination is
    made. Thus, in a casino setting, the blackjack and poker dealers may
    have to vote without knowing whether their terms and conditions of
    employment will be covered by a collective bargaining agreement that
    also covers waiters and waitresses, bartenders and others that may or
    may not have a sufficient ``community of interest'' with them.
        Uncertain Status of Supervisors. One critical group that will be
    affected by the ``20 percent'' rule just described are supervisors,
    whose exempt status determines not only whether they will vote and be
    represented by the union, but also whether their conduct is regulated
    by the same rules that apply to the employer. Thus, if they participate
    as employees in the campaign and it is later determined that they were
    in fact supervisors, statements they made for or against the union
    could be deemed coercive. This could result in the election being
    overturned, as occurred in Harborside Healthcare, Inc., where an
    employee who helped the union solicit supporters was later deemed a
    supervisor.\6\
    ---------------------------------------------------------------------------
        \6\ 343 N.L.R.B. 906 (2004).
    ---------------------------------------------------------------------------
        Denial of Employer Due Process Rights. A number of the changes,
    purportedly in the interests of expediting election procedures, would
    curtail the ability of employers--especially small businesses--to
    effectively present their position to the Board on critical issues like
    which employees should or should not be in the unit. Many of these
    highly technical but significant changes would violate the requirement
    of ``an appropriate hearing'' under the National Labor Relations Act,
    including:
         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'' \7\ to include
    telephone numbers and email addresses, though it is not clear whether
    this information would be personal, business or both. Either is
    problematic. If personal email addresses and telephone numbers are
    required, this would be a significant incursion on employees' privacy.
    If the requirement involves business telephone numbers and email
    addresses, this would be an unprecedented expansion of union access to
    employers' workplaces. The Workforce Democracy and Fairness Act would
    protect employee privacy and limit the information made available
    making it similar to the longstanding procedure.
    ---------------------------------------------------------------------------
        \7\ Named after Excelsior Underwear, Inc., 156 N.L.R.B. 1236
    (1966).
    ---------------------------------------------------------------------------
    II. The NLRB's Decision in Specialty Healthcare Furthers Long-term Goal
            of Labor to Undermine Fundamental American Labor Law Principle
            of ``Majority Rules''
        Decided on August 26, 2011 by a vote of 3 to 1, with NLRB Member
    Brian Hayes dissenting, the decision in Specialty Healthcare,\8\
    enables unions to secure organizing victories by carving out very small
    ``micro-units'' within a workplace, such as cashiers in a retail
    setting or poker dealers in a casino setting. What makes the situation
    even more alarming is the inability of employers to obtain a prompt
    review in the courts, which will likely take two or three years at
    best. Consequently, prompt legislative action such as the Workforce
    Democracy and Fairness Act is necessary.
    ---------------------------------------------------------------------------
        \8\ 357 NLRB No. 83 (August 26, 2011).
    ---------------------------------------------------------------------------
        Determining Who Votes in a Union Representation Election. When a
    union seeks to organize employees in a workplace, the first issue to be
    addressed is usually which group of employees will vote and ultimately
    be represented by the union if it is successful--i.e., the
    ``appropriate unit.'' The general touchstone in making this
    determination, which is very fact-sensitive, is whether there is a
    ``community of interest'' among the employees. When a union has
    authorization cards signed by at least 30% of the employees in the
    unit, it files a petition with the NLRB regional office. If the
    employer believes the union's target is not an appropriate unit, it can
    challenge the petition, prompting a hearing and determination by the
    Board as to what the appropriate unit is, i.e., a ``unit
    determination.'' In making this determination, there is a presumption
    in favor of the union's petition. However, if the employer believes
    that other employees have been inappropriately excluded, it will argue
    that there is a broader community of interest and, prior to Specialty
    Healthcare, the employer generally could prevail if it could show that
    the union's unit does not have interests that are ``sufficiently
    distinct'' from the larger group.\9\ The legislation would generally
    preserve this framework.
    ---------------------------------------------------------------------------
        \9\ Cf. Wheeling Island Gaming, 355 NLRB No. 127, Slip. Op. at 1
    n.2 (August 27, 2010); Newton-Wellesley Hospital, 250 NLRB 409, 411-12
    (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,\10\ the National Labor Relations Act
    is clearly based on a ``majority rule'' principle. Moreover, such a
    policy, which mirrors the laws in several European countries, would be
    viewed by employers and, likely the overwhelming majority of
    policymakers as well, as being highly disruptive and divisive in
    American workplaces at a time when U.S. employers are struggling to
    compete globally. Nevertheless, organized labor is interested in any
    approach that enables it to subdivide a workforce to obtain smaller
    ``majorities'' in elections.
    ---------------------------------------------------------------------------
        \10\ Petition in the Matter of Rulemaking Regarding Members-Only
    Minority-Union Collective Bargaining (Aug. 14, 2007).
    ---------------------------------------------------------------------------
        The Specialty Healthcare Decision. In Specialty Healthcare, the
    Board adopted a new standard for determining appropriate units, raising
    the bar substantially--impossibly, in the view of many labor lawyers--
    for an employer to challenge the union's unit as excluding other
    employees with a shared community of interest. Abandoning the
    ``sufficiently distinct'' standard, the Board will now require
    employers to show that there is an ``overwhelming community of
    interest'' with the larger group by pointing to ``factors that overlap
    almost completely.'' Effectively, any time a union files a petition
    involving a group of employees with the same job title and description,
    it will likely prevail. Although in deciding the case the Board sought
    in one part of the decision to claim that the new rule would only apply
    in non-acute health care facilities, the otherwise broad statements
    made in the decision prompted dissenting Member Brian Hayes to point
    out what management attorneys are generally concluding as well:
        [T]his test obviously encourages unions to engage in incremental
    organizing in the smallest units possible * * * [It will] make it
    virtually impossible for a party opposing this unit to prove that any
    excluded employees should be included * * * [T]he Board's Regional
    Offices * * * will have little option but to find almost any
    petitioned-for unit appropriate * * *\11\
    ---------------------------------------------------------------------------
        \11\ Specialty Healthcare, 357 NLRB No. 83, Slip. Op. at 19-20.
    ---------------------------------------------------------------------------
        The Disruptive Impact of the Decision. The successful operation of
    a business often depends on the ability to maintain uniform human
    resource policies that provide wage scales, benefits, scheduling,
    promotions, and so forth to a broad range of employees within the
    workplace. To have these policies fragmented, requiring bargaining with
    a union representing a small group of employees every time changes are
    made, can make or break the employer's ability to maintain the
    flexibility needed to respond to the demands of the marketplace. This
    becomes even more difficult if there are multiple unions, each
    representing one small part of the workforce. Thus, in a retail
    setting, in order to change major store policies, such as hours of
    operation, management of work flows during peak seasons, etc., the
    store owner may first have to bargain with the unions separately
    representing the cashiers, the salespersons in each department, the
    loading dock, the delivery truck drivers, etc. To underscore the
    absurdity of the ruling in Specialty, an earlier ruling in a case
    involving a casino rejected a union's petition to organize the poker
    dealers as a distinct unit from the blackjack, roulette, craps dealers
    and so forth.\12\ Under Specialty Healthcare, the union would likely
    have prevailed, as signaled by Member Craig Becker's dissent in the
    case.
    ---------------------------------------------------------------------------
        \12\ Wheeling Island Gaming, Inc., 355 NLRB No. 127, Slip. Op. at
    1.
    ---------------------------------------------------------------------------
        Inability of Employers to Bring a Legal Challenge Necessitates
    Legislative Solution. What is perhaps most disturbing about the
    Specialty Healthcare decision is the inability of employers to obtain a
    challenge in the courts, due to the complicated procedures of the NLRB.
    With extremely rare exceptions, the NLRB does most of its rulemaking
    with decisions in cases rather than regulations. There are two kinds of
    decisions--those such as Specialty Healthcare involving election
    procedures (called ``R cases'') and those involving unfair labor
    practices (``C cases''). Only decisions in C cases can be appealed
    directly to the federal courts, nor generally is there any realistic
    ability to obtain declaratory relief by a court that a Board decision
    is wrong. If an employer wishes to challenge an R case decision where
    the union ``won'' the election, it must refuse to bargain with the
    union, thus committing an unfair labor practice, which then invokes the
    Board's procedures in those cases. Thus, the time frame from the filing
    of a union petition to a review by the courts typically involves at
    least a year or two if not longer. Meanwhile, as employers wait for the
    right case to move through these procedures, every NLRB regional office
    in the United States will be required to rule on union petitions in
    accordance with Specialty Healthcare. Absent legislation overturning
    the decision, the disruptive effects will be felt immediately and for a
    very long time. Thus, it is imperative for Congress to pass the
    Workforce Democracy and Fairness Act.
        We applaud the Committee for holding this hearing and appreciate
    your consideration of this matter.
                                               Daniel V. Yager,
         Chief Policy Officer & General Counsel, HR Policy Association.
                                     ______

        Mr. Miller [continuing]. Also under the announcements that
    make available documents for the hearing for the record.
        Chairman Kline. No objection to either, they will be
    submitted for the record.
        [The information follows:]

           Prepared Statement of Chris Grant, Schuchat, Cook & Werner

        Per your request, here is a summary of two examples of employer
    abuse of the election process creating delay:
    1. Employer refusing to provide issues in advance of hearing and taking
            contradictory positions
        Employers sometimes refuse to provide notice of the issues prior to
    the hearing, and then change their positions, resulting in delay. In
    ADB Utility Contractors, 353 NLRB No. 21 (2008) and 355 NLRB No. 172
    (2010), the employer refused to give its position as to the issues
    prior to the representation hearing, forcing the union to guess as to
    what the employer would argue. At the representation hearing, the
    employer contended that its project supervisors and project managers
    (involving less than 20% of the unit) were employees and not
    supervisors. Notwithstanding, the employer subsequently argued at the
    unfair labor practice trial in the case that various crew leaders which
    the employer had fired for their union activity, that worked under the
    project supervisors and managers, were statutory supervisors. That is,
    the employer took the exact opposite position as to the status of the
    same individuals in two, virtually contemporaneous NLRB proceedings.
    The employer also knew that the workers were meeting with union
    representatives before the union filed the representation petition, and
    the employer acted on that knowledge. The General Manager informed
    employees that he knew that they were attending union meetings, and the
    employer fired several lead union supporters before the union filed the
    petition.
        The Union spent nearly five years having to litigate the employee
    status of the crew leaders. In the 2008 decision, the Board noted that
    delay in the case was due to the Employer posture on the supervisory
    issue which was ``a complete turnaround from its position during the
    near contemporaneous representation proceeding.'' The Board noted that,
    but for the Employer's contradictory positions, the Board could have
    issued a decision earlier.
        If the law required exhaustion of Board appeals before an election,
    in cases like ADB where employers raise frivolous issues it would take
    five years before employees would have the opportunity to vote.
    Employees would be denied the right to select a representative for 5
    years or more.
    2. Employer repeatedly litigating the same position at facilities
            across the country despite repeatedly losing
        In response to election petitions, the American Red Cross forces
    local unions across the country to litigate simple issues that the ARC
    has lost multiple times at other facilities. This creates delay.
        Unions typically seek to include team leaders (also called mobile
    unit leaders, site supervisors, and charges) in Red Cross bargaining
    units. These are frontline employees who collect blood and have the
    same hours as other employee, work under the close supervisor of low-
    level managers, are subject to detailed rules, and have little
    discretion in making decisions. The ARC claims these employees are
    supervisors. It has lost this claim many times, but continues to raise
    it. See American Red Cross, Heart of America Blood Services Region,
    Case 33-RC-5033 (May 4, 2007), American Red Cross Blood Services,
    Southern California Division, Case 21-RC-20885 (May 11, 2006), American
    Red Cross, Missouri-Illinois Blood Services Region, Case 14-RC-12500
    (June 10, 2004), American Red Cross Tennessee Valley Blood Services
    Region, Case 26-RC8399 (November 24, 2003) (site supervisors are not
    statutory supervisors); American Red Cross Blood Services, Northern
    Ohio Region, Case 8-RC-16337 (charges are not supervisors); American
    Red Cross Badger-Hawkeye Region, Case 13-RC-20710 (March 14, 2002)
    (collections specialists II are not statutory supervisors); American
    Red Cross Tennessee Valley Blood Services Region, Case 26-RC-8150
    (March 13, 2000) (mobile unit leaders are not statutory supervisors);
    Tri-State Division Greater Alleghenies Region, American Red Cross, 9-
    RC-17310 (November 1, 1999) (charge nurses are not supervisors);
    American Red Cross Blood Services, Northern Ohio Region, Case 8-RC-
    15906 (August 24, 1999) (charges are not supervisors).
        Unions also typically seek to represent collection or blood drive
    employees in an area (numbering up to 150 employees). The Red Cross has
    repeatedly argued that Unions must represent other non-supervisory
    employees in the area, like tele-recruiters and lab techs, that have
    little to no contact with the collection employees, work in different
    facilities, and work under different supervisor, and do not collect
    blood. The ARC has lost this issue repeatedly. American Red Cross,
    Arizona Region, Case 28-RC-6452 (July 7, 2006); American Red Cross,
    Missouri-Illinois Blood Services Region, Case 14-RC-12500 (June 10,
    2004), American Red Cross Tennessee Valley Blood Services Region, Case
    26-RC8399 (November 24, 2003); American Red Cross, Blood Services,
    Southern Region Savannah East Coast District, Case 10-RC-15296 (August
    9, 2002), American Red Cross Badger-Hawkeye Region, Case 13-RC-20710
    (March 14, 2002), American Red Cross Blood Services Southwest Region,
    Case 16-RC10255 (June 23, 2000); American Red Cross Tennessee Valley
    Blood Services Region, Case 26-RC-8150 (March 13, 2000).
        The litigation of issues that the ARC repeatedly loses at the least
    creates unnecessary delay in scheduling and holding an election. At
    worst, it is in bad faith.
        If you need additional information, let me know.
                                     ______

                                    ------

        Chairman Kline. I want to thank the panel, and just restate
    what I think is the obvious. This is a legislative hearing. We
    have some legislation before us. We are hearing from experts
    their views, their opinions, on the impact of that legislation
    and the impact of the proposed rule and rules coming from the
    National Labor Relations Board.
        It is the intent of the legislation not to clog up the
    review process. We are looking to codify what has been existing
    practice in both reviews and appeals, and allow this to move
    forward smoothly. We believe that the current actions of the
    board are injurious to workers, denying them the opportunity to
    hear all sides of the debate before they make a truly huge
    decision in their lives and their family lives on whether or
    not to recognize a union.
        We believe that the current ruling is manifestly unfair to
    employers, particularly small employers, when they have to deal
    with something like this, and more. I understand we have a
    multi-volume set, a couple of volumes. And as Mr. Russell
    pointed out, there are many, many employers who have no idea
    what is coming through the door and they have 7 days to find
    the lawyer, get their position in, and then not be able to
    change it.
        So we are looking in this legislation to undo what I think
    are very injurious actions of the National Labor Relations
    Board, protect the rights of employees and employers as they go
    forward to make these decisions. We will be informed by the
    hearing today. And if we need some classification, to Mr.
    Miller's point, in report language or in changing the language
    of the bill to make sure that we are not doing the egregious
    harm which has been suggested by the other side, we will of
    course be looking at that.
        Again, I thank the witnesses for their participation today.
    And there being no further business, the committee stands
    adjourned.
        [The prepared statement of Mr. Kucinich follows:]

                Prepared Statement of Hon. Dennis J. Kucinich, a
               Representative in Congress From the State of Ohio

        Mister Chairman, I strongly oppose H.R. 3094, ``The Workforce
    Democracy and Fairness Act.'' It would tear down seventy five years of
    National Labor Relations Board (NLRB) case law governing the
    appropriateness of a bargaining unit of employees. That case law says
    that unions should be able to organize sub-units of an employer, such
    as employees of one department, as opposed to all the employees at that
    workplace. But H.R. 3094 would allow employers to water down any
    potential bargaining unit by using its influence to stack the voting
    pool full of guaranteed ``no'' votes.
        The NLRB recently proposed a change to the procedures governing the
    rights of workers seeking to form a union. The changes would modernize
    and improve the procedures currently in place and further protect
    workers from efforts to delay or thwart workers exercising their right
    to collectively bargain. These changes would bring improvements for
    American workers. H.R. 3094 would prevent these important changes from
    taking place and serves as yet another bill brought by the majority of
    this committee that would significantly undermine the right of American
    workers to collectively bargain.
        The bill would allow employers to indefinitely delay union
    elections by requiring the National Labor Relations Board to hear and
    issue a formal decision on every appeal, no matter how arbitrary, made
    by employers. This will force workers seeking to assert their right to
    collectively bargain to wait months, even years, until an actual union
    election can take place.
        The intent of H.R. 3094 is clear: to impede the right of workers to
    collectively bargain. Given that about 14 million Americans are out of
    work and another 8 million are unable to find enough work to live
    reasonably, it is a shame that this Committee is wasting its resources
    on another piece of legislation that attacks the National Labor
    Relations Board. One of the greatest barriers toward an American
    economic recovery is the steady weakening of the middle class. This
    bill does nothing to help that. Instead, it is another step in the
    other direction.
                                     ______

         112TH CONGRESS                                  FIRST SESSION

                                   H.R. 3094

        To amend the National Labor Relations Act with respect to
    representation hearings and the timing of elections of labor
    organizations under that Act.

                        IN THE HOUSE OF REPRESENTATIVES

                                October 5, 2011

    Mr. Kline (for himself, Mr. McKeon, Mr. Wilson of South
            Carolina, Ms. Foxx, Mr. Hunter, Mr. Roe of Tennessee,
            Mr. Thompson of Pennsylvania, Mr. Walberg, Mr.
            DesJarlais, Mr. Rokita, Mr. Bucshon, Mr. Gowdy, Mrs.
            Roby, Mr. Ross of Florida, and Mr. Kelly) introduced
            the following bill; which was referred to the Committee
            on Education and the Workforce
                                    ------

                                     A BILL

        To amend the National Labor Relations Act with respect to
    representation hearings and the timing of elections of labor
    organizations under that Act.

        Be it enacted by the Senate and House of Representatives of
    the United States of America in Congress assembled,

    SECTION 1. SHORT TITLE.

        This Act may be cited as the ``Workforce Democracy and
    Fairness Act''.

    SEC. 2. TIMING OF ELECTIONS.

        Section 9 of the National Labor Relations Act (29 U.S.C.
    159) is amended--
                (1) in subsection (b) by striking the first
            sentence and inserting the following: ``In each case,
            prior to an election, the Board shall determine, in
            order to assure to employees the fullest freedom in
            exercising the rights guaranteed by this Act, the unit
            appropriate for the purposes of collective bargaining.
            Unless otherwise stated in this Act, the unit
            appropriate for purposes of collective bargaining shall
            consist of employees that share a sufficient community
            of interest. In determining whether employees share a
            sufficient community of interest, the Board shall
            consider (1) similarity of wages, benefits, and working
            conditions; (2) similarity of skills and training; (3)
            centrality of management and common supervision; (4)
            extent of interchange and frequency of contact between
            employees; (5) integration of the work flow and
            interrelationship of the production process; (6) the
            consistency of the unit with the employer's
            organizational structure; (7) similarity of job
            functions and work; and (8) the bargaining history in
            the particular unit and the industry. To avoid the
            proliferation or fragmentation of bargaining units,
            employees shall not be excluded from the unit unless
            the interests of the group sought are sufficiently
            distinct from those of other employees to warrant the
            establishment of a separate unit. Whether additional
            employees should be included in a proposed unit shall
            be based on whether such additional employees and
            proposed unit members share a sufficient community of
            interest, with the sole exception of proposed
            accretions to an existing unit, in which the inclusion
            of additional employees shall be based on whether such
            additional employees and existing unit members share an
            overwhelming community of interest and the additional
            employees have little or no separate identity.''; and
                (2) in subsection (c)(1) in the matter following
            subparagraph (B)--
                        (A) by inserting ``, but in no
                    circumstances less than 14 calendar days after
                    the filing of the petition'' after ``hearing
                    upon due notice'';
                        (B) by inserting before the last sentence
                    the following: ``An appropriate hearing shall
                    be one that is non-adversarial with the hearing
                    officer charged, in collaboration with the
                    parties, with the responsibility of identifying
                    any pre-election issues and thereafter making a
                    full record thereon. Pre-election issues shall
                    include, in addition to unit appropriateness,
                    the Board's jurisdiction and any other issue
                    the resolution of which may make an election
                    unnecessary or which may reasonably be expected
                    to impact the election's outcome. Parties may
                    raise independently any issue or assert any
                    position at any time prior to the close of the
                    hearing.'';
                        (C) in the last sentence--
                                (i) by inserting ``and a review of
                            post-hearing appeals'' after ``record
                            of such a hearing''; and
                                (ii) by inserting ``to be conducted
                            as soon as practicable but not less
                            than 35 calendar days following the
                            filing of an election petition'' after
                            ``election by secret ballot''; and
                        (D) by adding at the end the following:
                    ``Not earlier than 7 days after final
                    determination by the Board of the appropriate
                    bargaining unit, the Board shall acquire from
                    the employer a list of all eligible voters to
                    be made available to all parties, which shall
                    include the employee names, and one additional
                    form of personal employee contact information
                    (such as telephone number, email address or
                    mailing address) chosen by the employee in
                    writing.''.
                                    ------

        [Whereupon, at 12:25 p.m., the committee was adjourned.]