[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

                               __________

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Dale E. Kildee, Michigan
Judy Biggert, Illinois               Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Bob Goodlatte, Virginia              Lynn C. Woolsey, California
Duncan Hunter, California            Ruben Hinojosa, Texas
David P. Roe, Tennessee              Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania         John F. Tierney, Massachusetts
Tim Walberg, Michigan                Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee          Rush D. Holt, New Jersey
Richard L. Hanna, New York           Susan A. Davis, California
Todd Rokita, Indiana                 Raul M. Grijalva, Arizona
Larry Bucshon, Indiana               Timothy H. Bishop, New York
Trey Gowdy, South Carolina           David Loebsack, Iowa
Lou Barletta, Pennsylvania           Mazie K. Hirono, Hawaii
Kristi L. Noem, South Dakota         Jason Altmire, Pennsylvania
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on 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\
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    \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).
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    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.
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    \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.
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 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.
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                                ------                                

    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.]

                                 
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