[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
CULTURE OF UNION FAVORITISM: THE
RETURN OF THE NLRB'S AMBUSH
ELECTION RULE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 5, 2014
__________
Serial No. 113-48
__________
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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 Robert C. ``Bobby'' Scott,
Joe Wilson, South Carolina Virginia
Virginia Foxx, North Carolina Ruben Hinojosa, Texas
Tom Price, Georgia Carolyn McCarthy, New York
Kenny Marchant, Texas John F. Tierney, Massachusetts
Duncan Hunter, California Rush Holt, New Jersey
David P. Roe, Tennessee Susan A. Davis, California
Glenn Thompson, Pennsylvania Raul M. Grijalva, Arizona
Tim Walberg, Michigan Timothy H. Bishop, New York
Matt Salmon, Arizona David Loebsack, Iowa
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Scott DesJarlais, Tennessee Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Larry Bucshon, Indiana Gregorio Kilili Camacho Sablan,
Trey Gowdy, South Carolina Northern Mariana Islands
Lou Barletta, Pennsylvania Frederica S. Wilson, Florida
Joseph J. Heck, Nevada Suzanne Bonamici, Oregon
Susan W. Brooks, Indiana Mark Pocan, Wisconsin
Richard Hudson, North Carolina
Luke Messer, Indiana
Juliane Sullivan, Staff Director
Jody Calemine, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on March 5, 2014.................................... 1
Statement of Members:
Kline, Hon. John, Chairman, Committee on Education and the
Workforce.................................................. 1
Prepared statement of.................................... 3
Miller, Hon. George, senior Democratic member, Committee on
Education and the Workforce................................ 4
Prepared statement of.................................... 6
Statement of Witnesses:
Browne, Steve, Vice President of Human Resources, Larosa's,
Inc., Cincinnati, OH....................................... 16
Prepared statement of.................................... 18
Davis, Doreen S., Partner, Jones Day, New York, NY........... 8
Prepared statement of.................................... 10
Messenger, William, Staff Attorney, National Right to Work
Legal Defense Foundation, Inc., Springfield, VA............ 35
Prepared statement of.................................... 37
Sencer, Caren P., Esq., Shareholder, Weinberg, Roger &
Rosenfeld P.C., Alameda, California........................ 25
Prepared statement of.................................... 27
Additional Submissions:
Mr. Browne's response to questions submitted for the record.. 193
Holt, Hon. Russ, a Representative in Congress from the State
of New Jersey:
Letter dated March 4, 2014 from five Members of the New
Jersey Congressional Delegation and both U.S. Senators. 169
Questions submitted for the record....................... 190
Mr. Messenger:
Supplemental Testimony of................................ 141
Mr. Miller:
Petition filed by International Union, United
Automobile,, Aerospace and Agricultural Implement
Workers of America (UAW) before the National Labor
Relations Board (NLRB)................................. 58
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts:
Amicus Brief............................................. 123
CULTURE OF UNION FAVORITISM:
THE RETURN OF THE NLRB'S AMBUSH ELECTION RULE
----------
Wednesday, March 5, 2014
U.S. House of Representatives
Committee on Education and the Workforce
Washington, D.C.
----------
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, Wilson of South Carolina,
Foxx, Roe, Walberg, Guthrie, DesJarlais, Rokita, Bucshon,
Brooks, Hudson, Miller, Scott, Tierney, Holt, Davis, Grijalva,
Bishop, Loebsack, Fudge, Wilson of Florida, Bonamici, and
Pocan.
Staff Present: Janelle Belland, Coalitions and Member
Services Coordinator; Ed Gilroy, Director of Workforce Policy;
Benjamin Hoog, Senior Legislative Assistant; Marvin Kaplan,
Workforce Policy Counsel; Nancy Locke, Chief Clerk; James
Martin, Professional Staff Member; Daniel Murner, Press
Assistant; Brian Newell, Deputy Communications Director;
Krisann Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk;
Alexa Turner, Legislative Assistant; Ali Al Falahi, Minority
Systems Administrator; Tylease Alli, Minority Clerk/Intern and
Fellow Coordinator; Jody Calemine, Minority Staff Director;
Melissa Greenberg, Minority Staff Assistant; Scott Groginsky,
Minority Education Policy Advisor; Eunice Ikene, Minority Staff
Assistant; Brian Kennedy, Minority Senior Counsel; Julia Krahe,
Minority Communications Director; Brian Levin, Minority Deputy
Press Secretary/New Media Coordinator; Leticia Mederos,
Minority Director of Labor Policy; Richard Miller, Minority
Senior Labor Policy Advisor; Megan O'Reilly, Minority General
Counsel; Michael Zola, Minority Deputy Staff Director; and Mark
Zuckerman, Minority Senior Economic Advisor.
Chairman Kline. A quorum being present, the committee will
come to order.
Good morning. I would like to welcome our guests and thank
our witnesses for being with us. For many of my colleagues,
this hearing might evoke a sense of deja vu. Not too long ago,
we debated a nearly identical ambush election rule proposed by
the National Labor Relations Board that would stifle employers'
free speech and cripple workers' free choice.
In 2011, the House passed, with bipartisan support, a bill
that would have protected the rise of workers, employers, and
unions by reining in this radical proposal. Unfortunately, as
is so often the case, Senate Democrats refused to defend our
struggling workforce. This failure to act gave the Obama Labor
Board a green light to continue its assault on America's
workplaces. As a result, the Board revived its deeply misguided
rule in the desperate hope it will lead to more union members.
The ambush election proposal gives employers only seven
days to find legal counsel and appear before an NLRB regional
officer at a preelection hearing. During that brief period of
time, employers will have to identify every possible legal
concern or basically forfeit the ability to raise additional
concerns during the course of the hearing. The rule also delays
answers to important questions such as determining the
appropriate bargaining unit and voter eligibility until after
workers have voted.
Additionally, the proposed rule jeopardizes worker privacy
by delivering to union organizers employees' names, home and
email addresses, work schedules, and other personal
information.
It has been almost three years since this proposal was
first introduced, and it is just as bad now as it was back
then. The Board should have used this time to build public
support for changing longstanding policies governing union
elections. It didn't. The Board should have also used this time
to address the roughly 65,000 comments submitted during the
last rulemaking process. It didn't.
And if our Democratic colleagues truly believe the current
system is broken, they should have used this time to champion a
bill that would enact these changes to the legislative process,
but they didn't.
Instead, we are back where we were in 2011, confronting
significant changes to labor law imposed through executive fiat
without the consent of the American people or their elected
representatives. This is the latest example of how disconnected
the President and his allies are with the needs of working
families.
In 1959, then Senator John F. Kennedy advocated for a 30-
day period between the filing of a union election petition and
the election. Was Senator Kennedy advocating delay for the sake
of delay? Of course not. Our 35th President stated that a
waiting period is, quote, ``an additional safeguard against
rushing employees into an election where they are unfamiliar
with the issues.''
For decades, concerns about rushing employees into an
election have been shared by a majority of the Board and
addressed through a fair election process, one that provides
workers time to consider the facts, hear from their employees,
and consult with their close friends, family members, and
coworkers as they try to make a fully informed decision.
The Obama Board wants to tear down existing safeguards and
instead impose an ambush election scheme that is meant to
empower union bosses by jamming workers and silencing
employers. The Board's proposed rule is one more challenge
workers and employers will have to face in the midst of this
protracted jobs crisis.
Mort Zuckerman, chairman and editor-in-chief of U.S. News
and World Report recently wrote, ``A more robust economy,
stocked by growth oriented policies from Washington, would help
produce the jobs and opportunities that millions of Americans
need to climb the economic ladder.''
The fundamental problem with the President's labor agenda
is this: it has done very little to help put our labor force
back to work. Instead, it is designed to simply swell the ranks
of dues-paying union members. Employees have the right to join
or not join a union. Across the country, they continue to
exercise that right. Federal law must ensure a level playing
field and ultimately allow workers to make their own decisions.
Next week, Mr. Roe and I will have an opportunity to meet
with Chairman Pearce to discuss our concerns with his ambush
election rule. If there are opportunities to work together to
streamline the election process, like filing documents
electronically, we are more than eager to help achieve a
reasonable goal. However, if he is determined to ram through
the regulatory process a rule that will harm protections
enjoyed by workers, employers, and unions, then this committee
will do what is necessary and stand by those we are elected to
serve.
I will now yield to our distinguished colleague, the senior
Democratic member of the committee, Mr. Miller, for his opening
remarks.
[The statement of Chairman Kline follows:]
Prepared Statement of Hon. John Kline, Chairman, Committee on Education
and the Workforce
Good morning. I'd like to welcome our guests and thank our
witnesses for being with us. For many of my colleagues, this hearing
might evoke a sense of deja vu. Not too long ago we debated a nearly
identical ambush election rule proposed by the National Labor Relations
Board that would stifle employers' free speech and cripple workers'
free choice. In 2011 the House passed with bipartisan support a bill
that would have protected the rights of workers, employers, and unions
by reining in this radical proposal.
Unfortunately, as is so often the case, the Democrat Senate refused
to defend our struggling workforce. This failure to act gave the Obama
labor board a green light to continue its assault on America's
workplaces. As a result, the board revived its deeply misguided rule in
the desperate hope it will lead to more union members.
The ambush election proposal gives employers only seven days to
find legal counsel and appear before an NLRB regional officer at a pre-
election hearing. During that brief period of time, employers will have
to identify every possible legal concern or basically forfeit the
ability to raise additional concerns during the course of the hearing.
The rule also delays answers to important questions such as determining
the appropriate bargaining unit and voter eligibility, until after
workers have voted. Additionally, the proposed rule jeopardizes worker
privacy by delivering to union organizers employees' names, home and
email addresses, work schedules, and other personal information.
It's been almost three years since this proposal was first
introduced and it is just as bad now as it was back then. The board
should have used this time to build public support for changing long-
standing policies governing union elections. It didn't. The board
should have also used this time to address the roughly 65,000 comments
submitted during the last rulemaking process. It didn't. And if our
democratic colleagues truly believe the current system is broken, they
should have used this time to champion a bill that would enact these
changes through the legislative process. But they didn't.
Instead, we are back where we were in 2011: Confronting significant
changes to labor law imposed through executive fiat, without the
consent of the American people or their elected representatives. This
is the latest example of how disconnected the president and his allies
are with the needs of working families.
In 1959 then-Senator John F. Kennedy advocated for a 30-day period
between the filing of a union election petition and the election. Was
Senator Kennedy advocating delay for the sake of delay? Of course not.
Our 35th president stated that a waiting period is ``an additional
safeguard against rushing employees into an election where they are
unfamiliar with the issues.''
For decades, concerns about rushing employees into an election have
been shared by a majority of the board and addressed through a fair
election process, one that provides workers time to consider the facts,
hear from their employers, consult with their close friends, family
members, and co-workers as they try to make a fully-informed decision.
The Obama board wants to tear down existing safeguards and instead
impose an ambush election scheme that is meant to empower union bosses
by jamming workers and silencing employers.
The board's proposed rule is one more challenge workers and
employers will have to face in the midst of this protracted jobs
crisis. Mort Zuckerman, chairman and editor in chief of U.S. News and
World Report, recently wrote, ``A more robust economy, stoked by
growth-oriented policies from Washington, would help produce the jobs
and opportunities that millions of Americans need to climb the economic
ladder.''
The fundamental problem with the president's labor agenda is this:
It has done very little to help put our labor-force back to work.
Instead, it is designed to simply swell the ranks of dues-paying union
members. Employees have the right to join or not join a union; across
the country they continue to exercise that right. Federal law must
ensure a level playing field and ultimately allow workers to make their
own decisions.
Next week, Representative Roe and I will have an opportunity to
meet with Chairman Pearce to discuss our concerns with his ambush
election rule. If there are opportunities to work together to
streamline the election process, like filing documents electronically,
we are more than eager to help achieve a reasonable goal. However, if
he is determined to ram through the regulatory process a rule that will
harm protections enjoyed by workers, employers, and unions, then this
committee will do what's necessary and stand by those we are elected to
serve.
I will now yield to our distinguished colleague, the senior
Democratic member of the committee, Representative Miller, for his
opening remarks.
______
Mr. Miller. Thank you, Mr. Chairman, and good morning.
Today's hearing is about the National Labor Relations
Board's proposed rule for a fair workplace election process.
This modest rule is designed to ensure that workers have a
fair, modern, and standardized process for deciding whether to
be represented by a union. The current broken process allows
bad actors to use litigation to stall union elections for
months. These delays give unscrupulous employers time to engage
in threats, coercion, and intimidation of workers.
A 2011 study by the Center on Labor Research and Education
concluded that, ``the longer the delay between the filing of
the petition and the election date, the more likely it is that
the NLRB will issue complaints charging employers with illegal
activity.'' The rule addresses these unwarranted delays in
several ways. It provides for the electronic filing of
petitions and other documents. It requires a more timely
delivery of voter lists by an employer. It calls for a timely
exchange of information regarding the issues in dispute. And it
defers time-consuming litigation over some voter eligibility
issues that can be resolved post-election if necessary.
This rule does not, however, change the rather significant
imbalance that workers face in an election process. Unions
continue to have no right to access the workplace and the
workers can be limited to campaigning during non-work hours. By
contrast, employers still can campaign 24 hours a day, seven
days a week, throughout the workplace. Employers can start
campaigning the moment the worker is hired without any notice
of a union. The employers can require workers to attend anti-
union meetings and still fire workers who don't attend.
Employers can also force workers to meet one-on-one with
supervisors about the union. While those and other imbalances
remain, the new NLRB rule will help create a more clear, fair
and standardized process to ensure that workers' decisions
about whether or not to choose a union is made more freely with
less manipulation, threats, and intimidation.
Now the majority has derisively said and wrongly said, it
has suggested that these NLRB changes would allow for ambush
elections. The rule does no such thing. Under the new rule,
when a union organizes and files a petition, the election can
still be weeks away.
I do not want to say that it is an odd thing to complain
about being ambushed by an election. Only something that is not
already a democracy complains about being ambushed by a
democracy.
But there are plenty of people out there who are trying to
ambush and undermine elections. In fact, we saw an ambush in
the election just recently in Chattanooga, Tennessee, when
Volkswagen workers were voting on whether or not to join the
United Auto Workers. In this case, third parties made public
comments on the eve and during the vote, clearly sabotaging a
fair election for the 1,300 workers at the Volkswagen plant.
These outside parties included both well-funded interest groups
and elected officials dead set on stopping the workers from
joining the union. They were angry with Volkswagen because the
company was officially neutral in the election and refused to
interfere with the workers' choice. They were angry that
Volkswagen had a long track reported of successfully working
with labor unions through joint work councils that innovate and
reduce company costs. And they were angry that a majority of
the workers had signed cards saying they wanted the UAW to
represent them. If the election was free and fair, these
workers might actually unionize. So these outside parties did
what Volkswagen refused to do, they made threats.
Here is what the real ambush looks like: the election was
scheduled for three days of voting in February. On the first
day of voting, Senator Corker held a press conference and
dropped what the media called a bombshell. You can see the
bombshell on our first poster over here to the side. Corker
announced, ``I had conversations today and based on those am
assured that should workers vote against the UAW, Volkswagen
will announce in coming weeks that it will manufacture the new
midsized SUV here.''
Hearing that Senator Corker had promised the workers more
jobs if they voted against the union and threatened their
economic security if they voted for the union, Frank Fisher,
the chairman and CEO of Volkswagen in the United States, tried
to set the record straight saying, ``There is no connection
between the Chattanooga employees' decision on whether to be
represented by a union and the decision about where to build
the new product for the U.S. market.''
Senator Corker could not let that denial stand. He replied
that Volkswagen's CEO was speaking from old talking points,
implying that he had new and secret talking points.
Other Republican legislators got into the action, too. You
can see the media headlines on the other posters that
illustrate just a few of these threats. One says, Bill Watson,
a State Senator, says, ``VW may lose State help if the UAW is
voted in at Chattanooga plant.'' Another reads, ``Tennessee
politicians threaten to kill VW incentives if UAW wins
election.'' In other words, if you don't vote the way we want
you to vote, we will kill your job. Again, that is what real
election ambush looks like, especially when it comes just as
the voting starts.
You might expect to see this kind of voting intimidation by
public officials in Russia and China, but not here in the
United States. I am interested in what today's witnesses have
to say about the shameful ambush and how the NLRB proposed rule
might make our elections fairer and freer.
I yield back the balance of my time.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Senior Democratic Member,
Committee on Education and the Workforce
Good morning, Chairman Kline.
Today's hearing is about the National Labor Relations Board's
proposed rule for a fairer workplace election process.
This modest rule is designed to ensure that workers have a fair,
modern, and standardized process for deciding whether to be represented
by a union.
The current broken process allows bad actors to use litigation to
stall union elections for months. These delays give unscrupulous
employers time to engage in threats, coercion, and intimidation of
workers.
A 2011 study by the Center for Labor Research and Education
concluded that, ``The longer the delay between the filing of the
petition and the election date, the more likely it is that the NRLB
will issue complaints charging employers with illegal activity.''
The rule addresses these unwarranted delays in several ways.
It provides for the electronic filing of petitions and other
documents.
It requires a more timely delivery of voter lists by the employer.
It calls for the timely exchange of information regarding issues in
dispute.
And it defers time-consuming litigation over some voter eligibility
issues that can be resolved post-election, if necessary.
This rule does not, however, change the rather significant
imbalance that workers face in the election process.
Unions continue to have no right to access the workplace and
workers can be limited to campaigning during non-work times.
By contrast, employers can still campaign 24 hours per day, seven
days per week, throughout the workplace.
Employers can start campaigning the moment a worker is hired,
without notice to any union.
Employers can require workers to attend anti-union meetings and can
still fire workers who don't attend.
Employers can also force workers to meet one-on-one with
supervisors about the union.
While those and other imbalances remain, the new NLRB rule will
help create a more clear, fair, and standardized process to ensure that
a worker's decision about whether to choose a union is made more
freely, with less manipulation, threats, and intimidation.
Now the majority has derisively--and wrongly--suggested that these
NLRB changes would allow for ``ambush elections.''
The rule does no such thing. Under the new rule, when a union
organizes and files a petition, the election can still be weeks away.
I do want to say that it's an odd thing to complain of being
ambushed by an election. Only something that is not already a democracy
complains about being ambushed by democracy.
But there are plenty of people out there who are trying to ambush
and undermine union elections.
In fact, we saw an ambush of an election just recently, in
Chattanooga, Tennessee, when Volkswagen workers were voting on whether
to join the United Auto Workers.
In this case, third parties made public comments on the eve of--and
during--the vote, clearly sabotaging a fair election for the 1,300
workers at the Volkswagen plant.
These outside parties included both well-funded interest groups and
elected officials dead set on stopping the workers from joining the
union.
They were angry with Volkswagen because the company was officially
neutral in the election. It refused to interfere with the workers'
choice.
They were angry that Volkswagen had a long track record of
successfully working with labor unions through joint work councils that
innovate and reduce company costs.
They were angry that a majority of the workers had signed cards
saying they wanted the UAW to represent them.
If the election were free and fair, these workers might actually
unionize. So these outside parties did what Volkswagen refused to do.
They made threats.
Here's what a real ambush looks like:
The election was scheduled for three days of voting in February.
On the first day of voting, Senator Corker held a press conference
and dropped what the media called ``a bombshell.''
You can see that bombshell on our first poster.
``I've had conversations today and based on those am assured that
should the workers vote against the UAW, Volkswagen will announce in
the coming weeks that it will manufacture its new mid-size SUV here in
Chattanooga.''
Hearing that Senator Corker had promised the workers more jobs if
they voted against the union, and threatened their economic security if
they voted for the union, Frank Fischer, the chairman and CEO of
Volkswagen in the United States, tried to set the record straight,
saying: ``There is no connection between our Chattanooga employees'
decision about whether to be represented by a union and the decision
about where to build a new product for the U.S. market.''
Senator Corker could not let that denial stand. He replied that
Volkswagen's CEO was speaking from old talking points, implying that he
had the new, secret talking points.
Other Republican legislators got in the action, too.
You can see the media headlines on the other posters, which
illustrate just a few of the threats.
One says, ``Bo Watson [a state senator] Says VW May Lose State Help
If The UAW Is Voted In At Chattanooga Plant.''
Another reads ``Tenn. politicians threaten to kill VW incentives if
UAW wins election.'' In other words, if you don't vote the way we want
you to vote, we'll kill your job.
Again, that's what a real election ambush looks like, especially
when it comes just as the voting starts.
You might expect to see this kind of bullying and intimidation of
workers by public officials in Russia or China, but not here in the
United States.
I am interested in what today's witnesses have to say about this
shameful ambush, and how the NLRB proposed rule can make our elections
fairer and freer.
______
Chairman Kline. I thank the gentleman. Not surprisingly,
once again, Mr. Miller and I don't exactly agree.
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, we have Ms. Doreen Davis. She is a partner
with the law firm Jones Day in New York, New York. Mr. Steve
Browne is vice president of human resources at LaRosa in
Cincinnati, Ohio. He is testifying on behalf of the Society for
Human Resource Management. Ms. Caren Sencer, Esquire, is a
shareholder with the law firm Weinberg, Roger & Rosenfeld,
P.C., in Alameda, California. I think that is Alameda,
California. And Mr. William Messenger is the staff attorney for
the National Right to Work Legal Defense Foundation, Inc., in
Springfield, Virginia.
Welcome all.
Before I recognize you to provide your testimony, let me
again briefly explain our lighting system. You will each have
five 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. When your time is expired, the
light will turn red, at which point I will ask you to please
wrap up as expeditiously as you are able. After everyone has
testified, members will each have five minutes to ask
questions. While I am loathe to tap the gavel during witness
testimony, I am less so with my colleagues.
Again, I thank the witnesses for being here, and I
recognize Ms. Davis for five minutes.
STATEMENT OF DOREEN S. DAVIS, PARTNER, JONES DAY, NEW YORK, NEW
YORK
Ms. Davis. Good morning. Committee Chairman Kline and the
members of the U.S. House Committee on Education and the
Workforce. It is both an honor and a pleasure to appear before
the committee as a witness.
My name is Doreen Davis, and I am a partner in the Jones
Day law firm. My testimony today should not be construed as
legal advice as to any specific facts or circumstances.
Further, my testimony is based upon my own personal views and
does not necessarily reflect those of Jones Day or its
attorneys.
I have been practicing labor and employment law for over 35
years, and I work with employer clients located in various
parts of the country with varying workforce numbers with a
focus on traditional labor law matters. My background includes
substantial experience practicing before the National Labor
Relations Board, where I started my career as a field attorney
handling representation cases. I am a fellow of the College of
Labor and Employment Lawyers. I served as the 73rd chancellor
of the Philadelphia Bar Association, which is the oldest bar
association in the United States, and I have received many
accolades from legal publications, including the American
Lawyer, Chambers USA, U.S. News and World Report, the Legal 500
United States. A copy of my CV is provided with a written
version of my testimony as Attachment A.
Mr. Chairman, I request that the entirety of my testimony
and the attachments there to be entered into the record of
hearing.
Chairman Kline. Without objection.
Ms. Davis. My testimony this morning addresses the recent
initiatives undertaken by the NLRB with respect to
representation case procedures. There are a few points I would
like to make orally on the record.
First, the NLRB's proposed rule ignores the tens of
thousands of public comments submitted in response to the
virtually identical rule proposed by the Board in 2011. Instead
of taking the public's commentary into account when reproposing
changes to the representation case procedures, as the Board did
to an extent when it revised the 2011 rule in December of 2011,
the Board is returning to nearly the exact rule proposed in
June of 2011.
Despite inclusion in the record of public comments for the
newly proposed rule, the Board is really doing a disservice to
the administrative process by failing to take into
consideration any comments when making adjustments to those
representation case procedures, which were submitted in 2011.
Second, and related to the issue of the Board's failure to
respond to a significant public commentary on the 2011 rule,
the Board has failed to take into account watershed changes
that have been made related to the area of labor law since
2011. For instance, in 2011, the Board issued the landmark
decision of Specialty Healthcare, which overruled decades of
prior law on bargaining unit determinations and allowed the
certification of so-called micro-units. The contours of this
new doctrine of law remain far from clear, and the Board is
expected to issue new decisions applying Specialty Healthcare
in the coming months.
Moreover, the NLRB's General Counsel, Richard Griffin, has
also announced that following these decisions, he will issue
further guidance for employers and employees on the new
standard for bargaining unit determinations. With such
significant changes pending on issues directly related to
representation case elections, it is essential that the Board
extend the time for comments on the new rules until after the
new decisions and the general counsel's guidance are published.
This will allow the public, as well as the Board itself, to
begin to understand the effect of Specialty Healthcare in
conjunction with the proposed new representation rule.
Third, the substance of the rule changes proposed by the
Board present significant concerns for employers and employees
alike and, to a large degree, conflicts with the clear language
and intent of the National Labor Relations Act. Foremost among
these is the new requirement for a non-petitioning party,
generally the employer, to submit a comprehensive statement of
position within seven days of the election petition, setting
forth all possible issues presented by the petition. Any issues
not raised in this statement are forever waived by the
employer.
Such a requirement, rather than streamlining and making
more efficient the representation process, will almost
certainly make them more litigious and drawn out. It will also
lead to fewer stipulated or consent elections, which have
always been the preference of the regional offices handling
these cases.
Additional concerns regarding the substance of the Board's
proposed rule, including significant due process concerns, are
outlined in the written testimony.
In conclusion, Mr. Chairman, I would be happy to take any
questions the committee might have regarding my testimony.
Chairman Kline. Thank you.
[The statement of Ms. Davis follows:]
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Chairman Kline. Mr. Browne, you are recognized for five
minutes.
STATEMENT OF STEVE BROWNE, VICE PRESIDENT OF HUMAN RESOURCES,
LAROSA, CINCINNATI, OHIO, TESTIFYING ON BEHALF OF THE SOCIETY
FOR HUMAN RESOURCE MANAGEMENT
Mr. Browne. Chairman Kline, Ranking Member Miller, and
distinguished members, my name is Steve Browne. I am the
executive director of Human Resources at LaRosa, Incorporated,
and I am appearing before you today on behalf of the Society
for Human Resource Management, or SHRM, of which I have been a
member for 13 years.
Thank you for the opportunity to testify today on the
NLRB's proposal to change the rules governing representation
elections, otherwise known as the ambush election rule. This
rule will fundamentally and needlessly alter the delicate
balance that exists in current law which provides an employee
the opportunity to make an educated and informed decision to
form, join, or refrain from joining a labor organization. If
adopted, the proposed regulation would cripple an employee's
opportunity to learn the employer's perspective on the impact
of collective bargaining on the workplace. Finally, and equally
troubling, is that the NLRB is proposing this regulation absent
any evidence that it is needed.
Mr. Chairman, allow me to tell you a little bit about my
organization. LaRosa is a family owned regional pizzeria change
with 16 pizzerias, a call center, manufacturing commissary, and
a corporate office. I am proud to say we are celebrating our
60th anniversary this year, a rarity in the restaurant
industry. We have a long tradition of promoting from within in
our company. In fact, all of our assistant and general managers
started out on the front line.
LaRosa has been an employer of choice since its founding in
1954. Our turnover is low because we take care of our team
members, who in turn provide our guests with a great experience
when they purchase our great food. We dedicate a significant
amount of time and effort to communicating to our team members
about important workplace decisions, which requires a great
deal of planning and preparation. This is why I share SHRM's
concern with the Ambush election rule.
LaRosa would not be prepared to effectively respond to the
organization effort, nor would we be able to inform our 1,200
employees adequately about our perspective on the organizing
effort prior to the election. Considering we have had two years
now to educate our workforce on the Affordable Care Act, I
cannot envision how we would possibly educate our team members
about an organizing drive in 10 days.
SHRM believes that shortening the time between filing a
petition and the election will create an imbalance between the
rights of employees, employers and labor organizations. This
will severely limit an employer's ability to share its
perspective with employees about the organizing drive, thus
creating a distinct disadvantage for employers.
The rule's expanded requirement for providing personal,
confidential information about employers is also very
disconcerting. This requirement feels like an invasion of
privacy for employees and an unnecessary data collection burden
on the employers.
At LaRosa, we don't collect employees' personal email
addresses or unlisted phone numbers, as employees are reluctant
to share this information. I can only speak for LaRosa, but I
surmise this would be a similar reaction at many workplaces,
that employees will be dismayed, if not outright angry, to
learn that this type of personal information is being shared
with a third party without consent. And, unfortunately, it does
not appear that the rule has any safeguards in place to protect
employee information from disclosure.
Equally troubling is the new proposed requirement for the
voter eligibility lists and employee contact information to be
provided to the union within two workdays of the direction of
election. While we update our employee information constantly
at LaRosa, I am positive there are instances where the
information is outdated or incorrect, and it may be next to
impossible to accurately compile this information in two
business days.
Mr. Chairman, the ambush election rule appears to be a
solution in search of a problem. NLRB data shows that elections
are currently held rather expeditiously, on average within 38
days. Therefore, SHRM believes the rule's reduced timeframe is
unnecessary because current law provides employees ample time
to hear from both the union and the employer prior to an
election.
SHRM recognizes the inherent rights of employees to form,
join, assist, or refrain from joining a labor organization, and
these rights need to continue to be protected. However, SHRM
believes an employee's decision regarding unionization should
be based on relevant and timely information and free choice.
Mr. Chairman, thank you, again, for allowing me to share
SHRM's views on the NLRB's proposed ambush election rule. SHRM
believes that this rule is imbalanced and therefore should be
abandoned. I welcome your questions.
Chairman Kline. Thank you.
[The statement of Mr. Browne follows:]
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Chairman Kline. Ms. Sencer, you are recognized.
STATEMENT OF CAREN P. SENCER, ESQUIRE, SHAREHOLDER, WEINBERG,
ROGER & ROSENFELD P.C., ALAMEDA, CALIFORNIA
Ms. Sencer. Chairman Kline, Ranking Member Miller, and
members of the committee, thank you for this opportunity to
testify on the importance of updating the NLRB's procedures to
reduce gamesmanship, promote efficiency, ensure uniformity
among regions and effectuate the National Labor Relations Act's
goal of employee free choice.
When a union files a petition on behalf of a group of
workers seeking representation, the statute provides that the
workers' desire to vote for or against representation should be
promptly honored. In the absence of an employer's voluntary
recognition, the workers also have an opportunity to vote in a
timely election. But too often employers exploit the current
rules and procedures to delay the election as long as possible
or avoid an election altogether.
The current rules and procedures favor the parties entering
into a stipulated election agreement. If the agreed-upon date
is within 42 days from the date the petition was filed, it will
generally be approved by the regional director.
Of course, there is nothing wrong with encouraging parties
to reach an agreement, but this agreement comes at a price.
Often the employer will force the union to accept concessions,
for example, to remove or add workers to the unit. It almost
always requires agreeing to the 39th, 40th or 41st day for the
election. The union agrees to these concessions and the dates
because the alternative is a hearing process which results in
an election not being held until a minimum of 65 days after the
petition was filed. Simply by threatening a hearing, even when
there is no genuine dispute, employers inject unnecessary delay
into the representation process.
The NLRB's proposed rules take important steps towards
reducing the opportunity for unnecessary delay. The region
would have the discretion to refuse to open a hearing or to
limit areas on which evidence can be presented. It would allow
some disputes to be resolved if resolution is still necessary
after the election. If a hearing is held, the streamlined
process would result in a more focused, prompt hearing, and the
record would be closed faster. Once the decision and direction
of election is issued, the election would be held sooner, as
the 25 days for pre-election review by the Board would no
longer be necessary. The employer would retain an opportunity
for full review after the election.
I have been involved in approximately 200 representation
cases. In one earlier this year, a client filed a petition
seeking to represent a unit of one classification of employees
working for a subcontractor of the Federal Government. This
particular subcontractor has other collective bargaining
agreements with the international union covering only the
classification in question. The employer asked for an extension
of time to hold the representation hearing. The parties assured
a SIP for the representative.
The day before the rescheduled hearing, it was clear there
would be no stipulation because the employer sought to add an
additional job classification, doubling the size of the
proposed bargaining unit. The employer also informed the region
it would not be appearing at the scheduled hearing. The union
still had to appear and provide testimony about its labor
organization status, the Board's jurisdiction over the employer
and the propriety of the proposed unit, which, under Board law,
was presumptively appropriate.
That was February 12th. A direction of election has still
not issued, and when it does, it is expected to include the
mandatory 25 day waiting period to allow the parties to seek
review, notwithstanding the employer's refusal to participate
in the process. The employees filed their petition on January
31st. They will be lucky if they are able to cast their vote in
early April. This is just one of many examples of delay for
delay's sake.
If the proposed rules were in place, it is questionable
whether the postponement of the representation hearing would
have been granted. The morning of the hearing upon the
employer's failure to appear, the regional director could have
issued a direction of election without holding a hearing, as
there was no dispute regarding the scope of the bargaining
unit. The employer would have had two days to produce the
Excelsior list of employee names and contact information. Given
the size of the unit, the union would have likely waived the
right to have this information for a full 10 days.
If the proposed rules were in place, the election would
have already been held. Instead, the employees are prevented
from exercising their right to vote. This case, with the
employer's gamesmanship of delaying the initial hearing and
then boycotting the hearing process, highlights the importance
of the NLRB's proposed election rules in improving the election
process.
These rules are not revolutionary or radically different
than the status quo. They reflect an attempt to standardize
some of the best practices already being used and create
consistency between the regions. The proposed rules reduce
unnecessary delay, simplify the procedure and permit the
parties to seek Board review after the election, at which time
the parties know which, if any, prior disputes are still
relevant or determinative. This saves time and money for
employers, unions and the government while promoting the Act's
goal of employee free choice.
Thank you, and I hope my experience with the Board's
procedures is helpful to this committee.
Chairman Kline. Thank you.
[The statement of Ms. Sencer follows:]
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Chairman Kline. Mr. Messenger you are recognized for five
minutes.
STATEMENT OF WILLIAM MESSENGER, STAFF ATTORNEY, NATIONAL RIGHT
TO WORK LEGAL DEFENSE FOUNDATION, INC., SPRINGFIELD, VIRGINIA
Mr. Messenger. Thank you. Chairman Kline, Ranking Member
Miller, and distinguished representatives. Thank you for the
opportunity today to testify on the NLRB's proposed ambush
election rule.
While the proposed rule has many flaws, which are detailed
in my written statement to the committee, I would like to focus
on just two in my opening remarks: They diminish the ability of
employees to make a free and informed choice as to whether to
unionize, and they infringe on employee privacy interests.
First, the very purpose of a board election is to allow
employees to make a free and informed choice on whether they
wish to desire to unionize or not unionize. But the primary
effect of this rule will be to significantly shorten the
election period between the filing of an election petition and
the election itself down to as little as 10 days. This will
necessarily impair the ability of employees to educate
themselves about the pros and cons of unionization before being
forced to take a very important vote.
The shortened timeframe will also impair the ability of
employees opposed to unionization to campaign themselves
against the union, which is their legal right under the
National Labor Relations Act. A union will obviously be fully
prepared for an organizing campaign before it springs an
election on a workplace. Employees, however, may be caught
flatfooted and unable to counter-organize and put out their
opposing messages.
For example, members of this committee are obviously no
strangers to election. But imagine if, instead of a regularly
scheduled election, any rival for your seat could simply spring
an election at any time if they get a significant number of
signatures and that election would be conducted in two to three
weeks after it is requested. That would not only be unfair to
you as candidates in being able to get your message out before
the vote, but more importantly, it would be unfair to voters,
who wouldn't have enough time to hear both sides of the issue
before deciding who would represent them. That is effectively
what the NLRB wants to impose on individual employees.
And then second, the proposed rule contemplates a serious
invasion of employees' personal privacy. It requires the
disclosure to the union and thus to the union's supporters and
agents personal email addresses, personal phone numbers and the
employees' works schedules (i.e., when they get off work and
when they go to work), and this information is ripe for abuse,
both deliberative abuses and also unintentional abuses.
First, of course, this information will be deliberately
used by unions to contacts individuals who have expressed no
interest in being solicited by the union or who, for that
matter, may be strongly opposed to the union. In fact, that is
the very purpose of these disclosures, to allow unions to
contact individuals who have expressed no interest in talking
to the union. And then, after the election is over, nothing
requires that the union give the lists back to the NLRB nor
could it effectively be required. The list is then in the
union's hands to be able to be used as they wish, perhaps for
political purposes or to disseminate to their political allies
or for any other purpose unrelated to the election.
But perhaps even worse is the unintentional abuses that
could happen from these disclosures. The union will necessarily
have to share this information with its agents and supporters
in order to use it in an organizing campaign. And then how
those individuals use it, it can be misused for wrongful
purposes. For example, individual union supporters, either with
or without the union's knowledge, could use this information to
harass individuals who oppose the union, such as late night
phone calls or email spam or perhaps to simply harass
individuals against whom they have a personal grudge.
The disclosures will facilitate property crime because the
disclosures will include the individual's work schedules, and
obviously, if someone knows when you are at work, they also
know when you are not at home. And perhaps most obviously of
all, these disclosures will facilitate identity theft, which is
a growing problem in this Nation, because again, the union or
any of its supporters who can gain obtain access to this
information will have enough information to sign individuals up
for things. A good example is Patricia Pelletier, who CWA
officials, in retaliation for attempting to decertify the
union, signed her up for hundreds of unwanted magazine
subscriptions that she then had to go through the process of
trying to cancel one by one.
And there is unfortunately no way to stop these abuses from
occurring, once the information is given to the union. The NLRB
has no effective way to police how the union will actually use
this information, what safeguards are put on it and how it is
disseminated for others. And, as mentioned before, once the
information is given out, it can't be taken back. The bell
cannot be unrung.
For this reason, the only solution to protect employees'
personal privacy is for the NLRB not to require the disclosure
of personal information to the unions in the first place.
Thank you for the opportunity to testify today. I move that
my written statement be included in the record, and I look
forward to any questions you may have.
Chairman Kline. Thank you.
[The statement of Mr. Messenger follows:]
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Chairman Kline. All of your written statements will be
included in their entirety in the record. Thank you all for
your testimony, a panel of experts here, and thank you all for
paying attention to the lights. I am trying to think when last
we had a panel like this that finished on time. So thank you
very much.
Ms. Davis, in your testimony, you brought up the subject of
what you call micro-units or micro-unions that was addressed in
the Specialty Healthcare decision ruling of the NLRB back in
2011, and in that Specialty Healthcare decision, any party
seeking to enlarge the unit must demonstrate employees in the
large unit share, quote, ``an overwhelming community of
interest.'' And that is the change; it is the ``overwhelming
community of interest.''
Again, to you, Ms. Davis, when does the NLRB determine the
appropriateness of the bargaining unit?
Ms. Davis. Well, in accordance with current procedures,
that happens before the election, either through agreement of
the parties in a stipulated election agreement or by an
election held by a hearing officer at the regional office and
then a decision issued by the regional director prior to the
election actually being ordered.
Chairman Kline. And so do you see a change or a threat to
that in the proposed ambush election rule?
Ms. Davis. Absolutely, because there will be no opportunity
to litigate the appropriate bargaining unit before the election
was scheduled. All issues under the proposed rules are being
left until post-election, which would create a number of
difficulties in terms of the representation case process for
employers. Not only the breadth of the bargaining unit, which
is what we are talking about under Specialty Healthcare, which
groups will be included or not included, but also there are
individual eligibility issues that are determined under the
current processes before the election takes place; whether an
individual is eligible to vote, whether that individual is a
supervisor or not. It is a very important determination that
needs to be made in the process because supervisors, under the
National Labor Relations Act, are agents of the employer, and
if they break any of the rules, the employer has broken the
rules, which will lead to an election being overturned and
possibly a separate unfair labor process.
So it is important for certainty of the process that the
employer knows who is in the voting unit and who isn't; who is
a supervisor and who isn't. The new rules ignore that and are
going to make a complete mess out of that process.
Chairman Kline. So you were suggesting also in your
testimony that there be an extension to the comment period, as
I recall. Could you explain the relationship of that suggestion
for an extension of the comment period to your discussion that
you just went through very thoughtfully and thoroughly with
Specialty Healthcare and the definition of supervisors?
Ms. Davis. Yes, sir. There are a number of cases currently
pending before the National Labor Relations Board about
applying the Specialty Healthcare standard, which, as you can
tell by its name, was a case that involved the health care
industry, but now it is being applied to the retail sector.
Two cases that are pending, one involves Macy's and one is
Bergdorf Goodman, one of my favorite stores, that happens to do
with salespeople, shoe salespeople, and whether or not they are
an appropriate bargaining unit. For the Board to issue the
decisions that are pending to give clarity to the breadth of
the Specialty Healthcare decision, is it going to apply in
every industry? Is it going to apply across all sorts of
workforces? And for the General Counsel Griffin, who said he is
going to issue specific guidelines regarding Specialty
Healthcare, it would be extremely important for employers to
know that before there are any changes to the representation
case rules for the reasons that I outlined, that there is not
going to be an opportunity to litigate these issues prior to an
election being ordered.
Chairman Kline. Okay. So this is a horse and cart
essentially issue.
Ms. Davis. It is.
Chairman Kline. And your position, your argument is that
you need to get the clarity on the specialty ruling from the
NLRB before you move to the ambush election?
Ms. Davis. Yes, because we need to have the parameters
established of that decision and what it is going to mean
across the board.
Chairman Kline. Okay. In a probably a futile effort to set
the example here, I see my light has turned to yellow, so I
will yield back and recognize Mr. Miller.
Mr. Miller. Thank you, Mr. Chairman.
And before I begin my questions, I would like to ask
unanimous consent that the petition filed by UAW before the
National Labor Relations Board be made part of this hearing.
Chairman Kline. Without objection.
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Mr. Miller. Thank you. Ms. Sencer, in my opening remarks, I
referred to statements made by prominent politicians, including
United States Senator Bob Corker, prior to the recent UAW
election at the Volkswagen plant in Chattanooga, Tennessee.
Following the election, UAW filed a complaint with the NLRB
alleging interference by politicians, like Senator Corker,
interfered with the representation election in Tennessee.
Can you speak about the goals of representation elections
to provide employees with a free choice whether to join a
union, and how could comments from politicians from Tennessee
have tainted that election process? Are there cases where the
Board has considered the statements by third parties in
considering whether or not to order new elections?
Ms. Sencer. There is a whole line of cases about
interferences before an election.
Chairman Kline. Microphone, please.
Ms. Sencer. Sorry. There is a whole line of cases regarding
interference by third parties inside elections, and the goal of
the National Labor Relations Board is to have an election,
which has laboratory conditions that creates this kind of
falsehood that employees are in a bubble and nothing should
disturb that bubble.
Whether or not statements of third parties interfere with
that bubble is to some degree based on the dissemination, how
many people hear these statements, and then the nature of the
statements themselves.
General statements of support or nonsupport for
unionization are generally not seen as to interfere with the
right to vote, but threats or benefits that can be carried out
by the party speaking generally are seen to be interference
with an election. And when an election is interfered with, when
the laboratory conditions are disturbed, there is a sense that
there is fear and coercion when the vote is taking place and
this results generally in a re-run election.
Mr. Miller. Thank you. You mentioned in your statement, I
believe, about the length of time, what lengthening that time
means and what happens in that election process with that
lengthening of time.
Ms. Sencer. Sure. The election process under even the
proposed rule does not have a set period of time in which it is
going to happen. There would still in fact be pre-election
hearings if necessary when the number of people or the amount
of classifications in dispute is more than 20 percent of the
unit that is being proposed by the union. So the idea that we
are not going to have any pre-election hearings and we are not
going to know the scope of the bargaining unit before the
election, I don't think is accurate under the terms of the
proposed rule.
But the statistics show and the studies show that in fact
most of the most egregious unfair labor practices, which are
even a higher standard than objectionable conduct that
interferes with the election, happens in the days right before
the filing of the petition, giving rise to the belief that
employers know about the petition prior to the petition being
filed. And there is research that also shows and my experience
also shows that the longer the time between the petition being
filed and the election being held, the more likely there will
be behavior by the employer that results, not just in
objectionable behaviors that could interfere with an election,
but actually unfair labor practice, not just charges filed by
the union, but complaints issued by the region, which means
that it is not that I am saying it or the union is saying it,
but the independent investigation of the Board agents and field
attorneys has shown that there is something worth going to
trial on because it seems that the acts of the employer have
interfered with the ability of the employees to have a free
choice and open vote.
Mr. Miller. As I understand it, under the current process,
employers can campaign 24 hours a day with their employees.
They can employ this all throughout the workweek, all
throughout the time the employee is at the plant. And they
have, obviously, access to information. They can call them at
home. They can ask them to come to meetings; even before the
petition, they can hold meetings about unionization about the
workplace, and they have all of that access. The suggestion is
that somehow now to give expanded information about the
employees to the union, that somehow that is an absolute abuse
of the process.
Can you comment on that and what your experience has been?
Ms. Sencer. Sure. Well, since 1966 the Board has required
an employer provide the union with the home addresses of the
employees in the bargaining unit, so the idea that this is some
kind of new invasion on privacy doesn't really hold much water.
Since 1966, the rule has been in place that the home addresses
have to provided.
Mr. Miller. Do you know of any improper disclosing of that
information?
Ms. Sencer. I don't know of any improper disclosing of that
information, and it seems to me that a union would have lots of
incentives not to disclose that information improperly. This is
a group of people that they are trying to explain unions to
that they hope to have as members. It wouldn't serve any
purpose for them to disclose that information, just like
employers already have that information, and we don't see
employers wrongly using that information either.
Mr. Miller. Thank you very much.
I yield back.
Chairman Kline. I thank the gentleman.
Mr. Walberg, you are recognized.
Mr. Walberg. Thank you, Mr. Chairman.
You have given me voice here. I appreciate the panel being
here.
Mr. Messenger, just to make sure I understand it correctly,
the new proposed rules require employers to turn over to a
petitioning union an electronic list of all their employees'
telephone numbers, email addresses, and a number of other
personal pieces of information. Am I correct in understanding
that?
Mr. Messenger. Yes.
Mr. Walberg. And, Mr. Browne, as I understood from your
testimony, you don't keep most of that list.
Mr. Browne. We don't keep the electronic side of things and
unlisted phone numbers.
Mr. Walberg. Unlisted phone--what about email addresses?
Mr. Browne. No, sir, we do not.
Mr. Walberg. So those are not there.
Mr. Browne. No.
Mr. Walberg. Ms. Davis, what problems would develop for Mr.
Browne's company if they could not hand over an electronic list
of all of this information to a union requesting it?
Ms. Davis. Elections are automatically overturned if the
current Excelsior list is not presented in its correct form and
at the correct time, and the rule would be the same under the
proposed rules for the new additional information that is
required.
Mr. Walberg. What if the information isn't fully accurate,
such as an email address that was changed recently and never
reported to the employer?
Ms. Davis. Elections can be overturned on that basis.
Mr. Walberg. On that simple basis.
Ms. Davis. Yes.
Mr. Walberg. Mr. Messenger, do employees gain any right to
privacy under these new rules? Any right?
Mr. Messenger. No, they do not. There is nothing in these
rules that guarantee employees' personal privacy. There is no
option for them to opt out the disclosures, not that such an
option would even be effective given the short time frames. But
there are no protections for employee privacy. The union is
given the information to effectively use as it will in the
organizing campaign.
Mr. Walberg. No right to privacy.
Mr. Messenger. Yes.
Mr. Walberg. Mr. Browne, in your testimony, you say that
LaRosa has 1,200 employees, most of which work part time.
Mr. Browne. Yes, sir.
Mr. Walberg. If election times were significantly
shortened, how would this impact your ability to communicate
with your employees?
Mr. Browne. I think it would be very difficult, Mr.
Representative, because we have people who work as short as two
hours on a Saturday night, and if something was filed in the
first part of the week, by the time I would get to them, we
would be six days into the notification. So since our employees
work variable work schedules at variable times, it would be
hard to get everybody at one time.
Mr. Walberg. Ms. Davis, what kind of costs are we talking
about to a small business to incur during this time to deal
with the proposed rules?
Ms. Davis. Yes, Mr. Representative. Most small businesses
do not have a labor lawyer at the ready. They may not have ever
had an occasion to hire a labor lawyer in the past. So, in a
short period of time here, no more than seven days, they will
be required to seek and try to obtain counsel, to educate that
counsel about their business, because don't forget, under the
proposed rules now, the statement of position has to be filed
no later than seven days, raising every possible issue, or it
can be waived. I can tell you, under my 35 years, it is
challenging under current rules to get up to speed--
Mr. Walberg. I guess, going with that train, how long does
it typically take you to develop the information first and
ultimately then to develop the defense, the case that goes with
it?
Ms. Davis. Well, under the current rules, sometimes we are
required to do it as soon as 10 days, but not seven days, and
under the current rules, we can litigate at the pre-election
conference, but we still have an opportunity. We haven't waived
necessarily issues that weren't raised in the pre-election
conference. Issues can still be raised by means of challenging
ballots of voters at the election. You can still raise an issue
about their eligibility to vote.
Under the new rules, there would be no opportunity to do
that, unless you had stated it in your statement of position,
which is due no sooner than--no later than, I am sorry, seven
days after the petition is filed. So it is very challenging for
small employers. It is equally challenging for large employers,
because as an outside counsel, I have to learn their business,
how it operates, which group of employees interact with whom,
which employees have a community of interest with others. Do
they have similar wages, hours, working conditions,
supervision? Is what they do at that company related to what
another employee does and how? There are many things that have
to be learned in order to effectively represent an employer in
these kinds of proceedings, and that is all being very much
short-circuited under these proposed rules.
Mr. Walberg. Thank you.
I yield back.
Chairman Kline. I thank the gentleman.
Mr. Scott, you are recognized.
Mr. Scott. Thank you, Mr. Chairman.
Ms. Sencer, on the law on threatening to move jobs in
retaliation for legal labor organizing, are there examples
where elections have been overturned?
Ms. Sencer. Yes. If an employer were to make the kind of
statements that we heard in, for example, in the UAW case here
that were coming from the politicians, it is quite likely, I
don't want to--obviously, you can never 100 percent predict,
but quite likely the election would be overturned. It is this
concept that they call the fist inside the velvet glove, where
the person who has the control and the ability to make
decisions that affect your job, when they say something that is
either a threat or a benefit, it is taken very seriously in
interfering with laboratory conditions.
Mr. Scott. And elections have been overturned when that
happened?
Ms. Sencer. Yes.
Mr. Scott. Have elections not been overturned when that
happens?
Ms. Sencer. It depends upon the nature of the statement
made, the person who is making that statement, and whether or
not someone higher than that person in the organization has
effectively disclaimed that statement. In some of those cases,
the election has not been overturned. But where it is not
disclaimed or with someone with a higher level of information
or claiming to have a higher level of information rebuts the
disclaiming, then the disclaimer is not efficient, and we are
back to the stage where we have the threats and intimidation.
Mr. Scott. Exactly how do the new proposed rules change any
of that?
Ms. Sencer. In some degree, they won't address too much of
that, other than the timeframe. The studies show and my
experience shows that the longer a petition is pending before
the election is held, the more likely you are to have these
types of situations where threats are made. In one case that I
can think of that had been going on for an extended period of
time due to pre-election litigation, two days before the vote
the employer fired one of the main union supporters in a very
public way on a claim that they had been involved in harassing
another employee. The video evidence shows there was no such
interaction. But at that point, the damage had already been
done. The election wound up being invalid and, due to
situations beyond either the employer or the union's control,
was never rerun because the facility was sold.
Mr. Scott. Now, a comment was made about the ability of the
organizing to contact members of the bargaining unit. Can you
comment on whether or not technical things, like an email
address not being correct, could be cause for overturning an
election?
Ms. Sencer. In my experience the Excelsior list that unions
currently get with the home addresses, it frequently has
inaccuracies. When an inaccuracy is found, the union raises it
to the region. The region raises it to the employer, and the
employer has an opportunity to try to cure the list. I have
never seen a case that is actually overturned because of poor
addresses on the Excelsior list as much as I would like to have
seen it overturned on that.
If the employer does not have certain types of information,
the employer, under the proposed rules, would not be required
to gather that information. So if you don't gather email
addresses, the employer would not be required to go solicit
email addresses from its employees in order to put them on the
list. They are only required to provide the information that
they have. And it is presumed, because the standards required
by the Fair Labor Standards Act, that every employer already
has the home addresses of employees and is ready to provide
those.
Mr. Scott. How difficult is it to provide, if you have the
list, other than just run off the list? Is it logistically
difficult to provide such a list?
Ms. Sencer. Generally not. Almost every employer of any
size uses an electronic database to do its payroll at this
point anyway. If you are producing electronic payrolls, you
already have those addresses that are required to be on the pay
stub in an electronic format. If you have any size employer, I
mean, I cannot imagine actually looking at LaRosa's with 1,200
employees, that it doesn't have the home addresses and the
phone numbers for these variable shift employees already in an
electronic format that could be pulled and submitted to the
region.
Mr. Scott. Can you say a word about the privacy of the
workers when the information is released?
Ms. Sencer. I am not aware of any cases where the
information has been released where it has been used for
improper purposes. I understand that Mr. Messenger believes
that he has a case about that. The employer has this
information already. We do not see the employers abusing it
because the employees would rightfully be upset. The same would
be true if the union disclosed that information. But the union
doesn't, because it is in the union's interest to make sure
this information is only used in the appropriate manner,
because this is a group of people that they are trying to
convince that they are the right choice for. It doesn't make
any sense to disclose that information, and I am not aware of
those types of disclosures ever happening.
Mr. Scott. Thank you, Mr. Chairman.
Chairman Kline. I thank the gentleman.
Dr. DesJarlais, you are recognized.
Mr. DesJarlais. Thank you, Mr. Chairman.
And thank you to all of our witnesses for appearing here
today. I appreciate that.
Recently workers at the Volkswagen plant in Chattanooga,
many who lived in my neighboring Fourth District, voted against
unionizing their workforce. It was encouraging to see a free
and robust debate concluded by a fair secret ballot election.
Workers deserve access to a broad spectrum of ideas with
which to make their decisions whether or not to unionize.
Unfortunately, under the recently repurposed rules, future
debates like these could be limited, forcing employees to make
incredibly important decisions without the benefit of full
accounting of the facts.
Mr. Messenger, under current law, what can a union do or
say to employees during an organizing campaign?
Mr. Messenger. Effectively anything that is not a direct
threat. Board law provides that if a union makes a promise or a
threat, it is only considered actionable or objectionable if
the union can actually carry it out, the threat. And the board
has held that if a union makes promises about what it is able
to do, the union is not actually able to do it; it is
contingent upon future bargaining. So a union is effectively
able to promise virtually anything it wants or predict any dire
consequences that it wants as the result of unionization.
Basically, one of the few things a union can't do is
directly threaten an employee, because it could carry that
threat out. But other than, that the union is generally free to
state whatever it likes about future consequences of
unionization.
Mr. DesJarlais. What resources do employees have to kind of
separate the facts from the rhetoric?
Mr. Messenger. Only information that they received from
other parties, their coworkers, for one. But also a very
important source of information is their employer. And under
these rules, the employers have very little time to prepare for
a campaign and get out information, which is particularly
difficult for employers, because unlike unions, there is a host
of restrictions on what employers can say. It is a virtual land
mine, or minefield, of things they can say wrong that can be
considered unfair labor practices or to taint the election. So
they need to hire labor counsel and all the rest to prepare to
be able to get out what information they can. And these rules
significantly shorten the timeframe for them to be able to do
that and thus diminish the amount of information that employees
have available to them.
Mr. DesJarlais. In your experience, do unions routinely
provide employees they seek to organize information about
itself or themselves?
Mr. Messenger. Only favorable information that presents
them in a good view. Unions are ultimately campaign
organizations, and what they do, it is what they do for a
living or as a business. So they test what they do, and they
only present what they think will be effective in ultimately
getting an employee to sign a card or to vote for them. They
are under no obligation to provide any other information about
the downsides of unionization or anything that is even fair or
balanced.
Mr. DesJarlais. Do you find that they would usually
disclose their constitutions, their bylaws, results of unfair
labor practice charges, results of negotiations for first
contracts, past records with other employees, bargaining
history or things of that sort?
Mr. Messenger. No, unless the union believes that one of
those facts that it can cherry-pick out will make it look
favorable to the employees it is trying to unionize. But it
certainly doesn't fully disclose the pros and cons of
unionization, only the pros.
Mr. DesJarlais. Ms. Davis, would you add anything to that?
Ms. Davis. I would certainly agree to that, based on my
experience. Normally the responsibility for educating the
employees about the list of items that you just read off rests
with the employer, not with the union.
Mr. DesJarlais. Okay. That is all I have.
Chairman Kline. I thank the gentleman.
Mr. Tierney, you are recognized.
Mr. Tierney. Thank you, Mr. Chairman.
Mr. Messenger, I would like to read a brief passage to you.
I quote, ``an appearance of government neutrality is just as
necessary for free and fair elections as is the appearance of
Board neutrality. Failure to require it in Board certification
elections will open the floodgates to interference by Federal,
State, and local officials seeking to curry favor with union
officials or employers. In order to protect employee free
choice and to protect the Board's exclusive jurisdiction over
representational proceedings, it is imperative that the Board
find objectionable conduct by government officials that can be
construed as a State action in support of a union.''
Do you agree with that statement?
Mr. Messenger. It depends on its context, and I think I may
know where that is from.
Mr. Tierney. Well, that is right. And the context was in
the very amicus brief that you signed on October 26, 2007,
urging the National Labor Relations Board to set aside the
results of the union election conducted at Trump Plaza in March
of that same year.
Mr. Chairman, I ask unanimous consent that the amicus brief
to which I am referring be entered in the record.
Chairman Kline. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. And I would also ask that the record reflect
that Mr. Messenger signed that brief in his capacity with the
National Right to Work Legal Defense Foundation, which he is
representing here today.
Chairman Kline. Without objection.
Mr. Tierney. Thank you.
So, Mr. Messenger, in your brief, you will recall that you
took issue with our former colleague Rob Andrews and his, to
quote your words in the amicus brief, ``objectionable conduct
that destroyed the laboratory conditions for a free and fair
election.'' Is that correct?
Mr. Messenger. Yes. But the situation is rather
distinguishable.
Mr. Tierney. That is exactly how you put it in that case. I
am just quoting you on your brief.
Has the National Right to Work Legal Defense Foundation
issued any formal statement criticizing Senator Corker's
statement and criticizing Senator Corker for using his
authority to influence the recent UAW Volkswagen union election
in Chattanooga?
Mr. Messenger. Not to my knowledge.
Mr. Tierney. Okay. So I am asking you now to explain to us
how what former Representative Andrews said or did constituted,
in your words, objectionable conduct, but what Senator Corker
said doesn't?
Mr. Messenger. Because what happened in Representative
Andrews' situation is that he took an action that could be
construed as having legal effect. Mainly two to three days
before an election at Trump Plaza amongst dealers, he and the
UAW conducted a ceremony in which he certified that the union
was actually the majority of the employees based upon cards.
Mr. Tierney. Now, if I direct you to Senator Corker's
statement, he says ``I have had conversations today and, based
on those, am assured that should the workers vote against the
UAW, Volkswagen will announce in the coming weeks that it will
manufacture its new midsized SUV here in Chattanooga.''
It sounds like he has some pretty official inside
information that he is imparting and sounds that, as a United
States Senator, that maybe he has the authority to do something
about it, wouldn't you agree?
Mr. Messenger. Not authority to do something about it.
Volkswagen will determine where it puts its SUVs.
Mr. Tierney. Let me ask, Ms. Sencer, these statements were
made really close to the election date itself, correct?
Ms. Sencer. They were actually made during the course of
the election.
Mr. Tierney. During the course of the election, and that is
why the newspapers reported it as a bombshell, right?
Ms. Sencer. Yes. Probably.
Mr. Tierney. Now, if the CEO of the company had made that
statement, would it have been an unfair labor practice?
Ms. Sencer. Yes, and most likely--well, they wouldn't have
to show that it was an unfair labor practice. They would only
have to show that it was objectionable to affect the election.
But it most likely also would be an unfair labor practice.
Mr. Tierney. Now, Senator Corker's statement was refuted by
Mr. Fisher, the chief executive, right after he said it or
close to the time he said it?
Ms. Sencer. Yes.
Mr. Tierney. But, then again, we see Senator Corker
purports to have better information--
Ms. Sencer. Yes.
Mr. Tierney.--than the CEO of the corporation. So does that
then nullify what Mr. Fisher tried to do?
Ms. Sencer. It is, because Mr. Corker then said that I have
new talking points as compared to Mr. Fisher's old talking
points.
Mr. Tierney. So, in your estimation, is it likely there
could be a challenge that there was an unfair labor practice
involved here?
Ms. Sencer. There is likely to be a challenge of that. And
that is part of the basis from the objections, from what I
understand.
Mr. Tierney. And, in your opinion, is that challenge likely
to be successful?
Ms. Sencer. As to the objections to the election, I would
think that it probably will be.
Mr. Tierney. Thank you.
I have no further questions. Yield back.
[Additional Submissions by Mr. Messenger follow:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Chairman Kline. I thank the gentleman.
Dr. Roe, you are recognized.
Mr. Roe. I thank the chairman for recognition.
Just to clear the record up a little bit, in the Volkswagen
vote that just occurred a week or so ago, the union had two
years of unfettered access to the employees of that company--
two years.
And at the time when Volkswagen was brought to Chattanooga,
Mayor Corker--he has been in the Senate now the seventh year--
Mayor Corker--his eighth year, I guess--had a lot to do with
that company coming there, along with our Democratic Governor,
Governor Phil Bredesen, at the time. And what Senator Corker
said, he has no control whatsoever of what goes on with that as
a U.S.--if he were the mayor or he were the Governor, that
would be one thing, but he is not. And I think he exercised his
right of free speech to say what he thought about that, as
people say.
And we don't seem to hear President Obama being talked
about here when he spoke in favor of this union vote policy.
Look, I think I am going to give a shameless shout-out for
one of my bills, the Secret Ballot Protection Act, which I
think right now we need, more than ever we need.
And I grew up in a union household in Tennessee, a factory
worker's son. And I understand that unions have a place, they
have a right to be there.
And the NLRB's job, in my opinion, is to be fair--they are
like the referees in a ball game. They are supposed to be the
ones who give both sides a fair hearing. And you have a
vigorous debate, and then you have an election, and who wins.
And, look, there is always going to be somebody at the
buzzer when you get fouled or you think you got fouled in a
basketball game, that you missed a shot because the referee
missed a call. I think this was done fairly. The German
workers' council from across the ocean spoke up about this. So
I think it was a fair election, and we will see how it works
out. And if there is another election, so be it, as long as it
is a fair and free election.
I want to ask Mr. Browne, why do you believe employers--and
I think of my own business with 450 employees. Why do you
believe employers need to seek outside counsel?
Mr. Browne. In my situation at LaRosa, I have a very
limited HR staff: there is myself, a full-time HR manager, and
three part-time specialists in payroll, benefits, and
recruiting.
I am very versed on the NLRA because I have been in HR for
25-plus years, but in the instance of being faced with an
organizing campaign, I would want to seek outside counsel to
make sure that we remain objective, that we remain compliant,
and that we remain informed on the steps to do things properly.
Mr. Roe. Yeah, you don't have, as we don't have, the
expertise to deal. We would have to hire counsel--
Mr. Browne. Yes, sir.
Mr. Roe.--sitting down here.
Now, a second question. Any of you, Mr. Messenger or anyone
can take this. What is the average time between the petition
and the representation election? In other words, what problem
are we trying to fix?
Mr. Messenger. The average time based upon the information
in the proposed rule is 31 days, and the median time is 38.
Mr. Roe. So the average is--okay. How many cases are
delayed, and how long? Because that is what we always hear
about the exception. And what percent of these elections do the
unions actually win?
Mr. Messenger. I believe that in 2010 the percentage was 94
percent of elections actually occurred within the board's
target timeframe of 56 days. So only about 5 or 6 percent of
elections go beyond two months. And, in fact, in most
elections, I forget the most recent statistics, but unions
generally win the elections that actually do go to
certification a little bit over half the time.
Mr. Roe. That is the majority of the time.
And what is usually the source of the delays?
Mr. Messenger. Usually there are two. The first is union
blocking charges. That happens a lot in decertification
campaigns, where employees are trying to get out of union
representation. And a common problem is the union will start
filing unfair labor practice charges which the NLRB will
investigate at length before it will ever even begin to start
the election process.
And then the second is when the board itself wants to take
it upon itself to set law in a particular instance. So if the
board takes an issue presented in an election case, sometimes
it could take the board a very long time to rule, and so it is
the board's delay, not necessarily the procedure.
Mr. Roe. What recourse does an employer have against a
union's false statements or false information? Or is there any
recourse?
Mr. Messenger. I will leave that to the employers'
attorney, if that is okay.
Ms. Davis. Very little. There is wide latitude in union
representation campaigns for union rhetoric and what they can
and can't say, the reason being that the labor board has
specifically said that employees are sophisticated enough to
know that unions are going to make promises to get elected, and
that they realize that even though a union will say things,
they can't deliver on anything that they promise because they
have to get the employer's agreement.
On the other hand, the rules for the employer are very
strict. And I might say, after my 35 years of experience, they
are rather counterintuitive to businesspeople. And that is why
they seek out labor counsel, because the things that you would
probably naturally think that you could do as a businessowner
in the face of a union election petition, pretty much
everything you would think you could do is illegal. But most
employers don't necessarily know that.
Chairman Kline. The gentleman's time has expired.
Mr. Holt?
Mr. Holt. Thank you, Mr. Chairman.
First of all, I would ask unanimous consent to introduce in
the record a letter from five Members of the New Jersey
congressional delegation and both U.S. Senators to Chairman
Pearce on this matter.
Chairman Kline. Without objection.
[The information follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Holt. Thank you.
You know, as we discuss the details of the election
procedures and how the NLRB rule would seek to have a more
level playing field so that employers wouldn't have an
advantage in the vote, I think it is important to ask really
what this is all about, just not get lost in the weeds.
Mr. Browne, why do you oppose organizing and collective
bargaining by the employees? Why do you care so strongly?
Mr. Browne. I don't think that is where we are at. I think
that we are trying to say that employees should be educated,
and employers and employees should both have a chance--
Mr. Holt. Have you invited a union in to organize?
Mr. Browne. No, sir.
Mr. Holt. No. So the whole point here is you are trying to
make it hard for them to organize. Why? Why? Let me ask you
that.
Mr. Browne. I think we are trying to make sure people are
educated. And if people are educated, they can make an informed
decision on either side of the situation. Without education,
they can't really do that.
Mr. Holt. Come on, let's not play games. You don't want it
unionized. Why? Tell me.
Mr. Browne. I would have to get a written response back to
you, sir.
Mr. Holt. Okay. I wish you would, please.
Mr. Holt. Ms. Sencer, in that last line of questioning with
Dr. Roe, I think you were itching to make a comment. If you
would, briefly, I would--
Ms. Sencer. I was. Thank you.
The problem isn't in the majority of the elections where we
have a stipulated election agreement. Most employers play by
those rules, and everything works out fine.
In the cases that don't stipulate, though, the average is
160-some-odd days between the time the petition is filed and
the time that the election is held. And that is simply too long
for the employees. And, as a result, during that time period is
when we see the increase in employer-objectionable conduct that
results in unfair labor practice charges and others.
When we talk about these blocking charges, however, the
blocking charges are not the problem. The most recent
statistics showed that there was only 31 blocking charges filed
in the entirety of 2012. This is not a significant number.
A blocking charge is always a two-way street. A blocking
charge only exists because the employer engaged in some
activity that the union found to be objectionable or
questionable.
And then the practice, once those blocking charges are
filed, is that most regions, or at least the regions that I am
familiar with, do a prompt investigation and require the union
to give an offer of proof. If this is really close to the
election, within 48 hours, most regions continue to hold the
election and simply impound the ballots until such time as the
blocking charge is actually fully investigated.
More often than not, they require full investigation of the
blocking charge prior to the election, but they complete that
investigation prior to the election itself and it does not
postpone the election.
Mr. Holt. Thank you. That is useful information.
Let's see, Mr. Browne, you are representing the Society for
Human Resource Management, is that correct, today?
Mr. Browne. Yes, sir.
Mr. Holt. And, Mr. Messenger, you are representing the
National Right to Work Legal Defense Foundation; is that
correct?
Mr. Messenger. Yes, sir.
Mr. Holt. Yeah.
Mr. Browne, who invited you here today? Specifically, who
on the committee notified you of the hearing?
Mr. Browne. I was notified by the Society for Human
Resource Management to come.
Mr. Holt. Uh-huh. And how did you learn of the hearing?
Mr. Browne. I was informed through their government
advocacy group.
Mr. Holt. Uh-huh. By whom?
Mr. Browne. By Mike Aitken.
Mr. Holt. Okay. And this was--how did Mr. Aitken notify
you?
Mr. Browne. I am sorry, sir?
Mr. Holt. How did Mr. Aitken notify you?
Mr. Browne. He notified me by email.
Mr. Holt. Yeah, by email. Yeah, that is the way it is done
these days. That is the way we communicate, by email. Sometimes
by phone. You probably had a phone exchange with the committee
also. That is the way it is done.
So there is nothing out of the ordinary that this rule
would say that in order to have a level playing field so that
people could organize to protect their rights--working
conditions, wages, safety in the workplace, all of those things
that we bargain collectively about--so that they could have a
level playing field to do those things, the unions should have
the means of communication that is normally used for
communication.
And I presume, Mr. Messenger, you were also notified of
this hearing by either phone or email?
Mr. Messenger. Yes, email.
Mr. Holt. Yes. Yes. Thank you.
No further questions.
Chairman Kline. The gentleman's time has expired.
Ms. Brooks, you are recognized.
Mrs. Brooks. Thank you, Mr. Chairman.
And thank you all for come here today.
I am going to direct my questions really to the attorneys.
As an attorney, I have great concerns about the seven day
window. And having not practiced in your space of labor law, I
certainly know that any labor lawyers I have ever called for
anything are often on the road, you are often in negotiations,
you are often in court. And so to have that short of a window
to assist a new client I think would be extremely difficult.
And so I am going to start with you, Ms. Davis. And I am
curious, following the petition of an election, how much
contact do you have with your clients--or how much contact do
you and your clients have with the regional director? And can
you talk with us about the importance of that process and the
types of issues that you address and/or try to resolve in
working with the regional director?
Ms. Davis. I have a case pending right now. A petition was
just filed last week, and it is in the Cleveland region of the
NLRB. And while I am not dealing with the regional director
directly, I am dealing with the field attorney who is handling
the case. And I have had no fewer than five phone calls over
the past three days trying to pinpoint--he is trying to
pinpoint with me what, if any, issues we might be raising in
the hearing. And I am still exploring with my client whether or
not there are any issues, what the appropriate bargaining unit
is. This case happens to be a little bit complicated because
there is another case that affects it. And so we have quite a
bit of at least conversation by phone with the regional office
before the actual preelection hearing.
And you are absolutely right about the timeframe now. It is
very challenging, as I am sure Ms. Sencer can tell you as well.
We don't sit around waiting for the petitions to be filed. We
don't control the timing of the filing of the petitions. And
oftentimes our schedules are booked up in the next week, as you
might imagine, with other appointments and commitments that we
have to make.
Mrs. Brooks. Because you typically don't work with one
client at a time.
Ms. Davis. Oh, no.
Mrs. Brooks. Is that correct?
Ms. Davis. We do not. Many, many different clients at the
same time.
Mrs. Brooks. And how often do these negotiations that you
are having with the regional director lead to compromise or
resolve issues?
Ms. Davis. Most of the time. In my experience, again, of 35
years, I would say at least 85 percent of all representation
cases I have handled--and it has been over 300, at least--have
resulted in a stipulated election agreement.
Mrs. Brooks. And how will this new seven day timetable
affect those stipulated agreements?
Ms. Davis. I think it is going to have a very detrimental
effect. There is going to be a reluctance to enter into a
stipulated election agreement, first of all, under the proposed
rules, something that we haven't touched on yet.
But under the new rules, stipulated election agreements,
the final decisions on what happens do not automatically go to
the labor board. They have discretion whether or not to take
those issues. Under the current practice, stipulated election
agreements, the labor board absolutely has the final word and
determination; it is not discretionary. That alone is going to
discourage stipulated election agreements.
And the requirements from statement of position and the
waiver of those issues I think is going to make--I know I am
going to be very reluctant to advise my clients to enter into
stipulated election agreements in that short of a timeframe
when we are not sure what all the issues are, and that, you
know, we are going to waive them if we don't raise them.
Mrs. Brooks. Based on the 300 cases that you have worked on
under the current rules, what is the average length of time
that you would say that you need, as a good attorney, to flesh
out the issues, develop the case, and develop your position
statements?
Ms. Davis. I would say at least 10 days to two weeks. That
is a minimum.
Mrs. Brooks. How many associates do you have working with
you?
Ms. Davis. Well, if you count all the associates in all of
our offices, it would be many. But in my office in New York, I
have about four or five associates who work with me closely.
Mrs. Brooks. And you need to supervise those individuals,
as well.
Ms. Davis. Absolutely.
Mrs. Brooks. I have nothing further at this time.
Chairman Kline. I thank the gentlelady.
And, Ms. Davis, you are recognized.
Mrs. Davis of California. Thank you, Mr. Chairman.
Going back to some of the issues that have already been
raised, and one of them was the concern that employers can
certainly speak out against unionization at any time. I think
it was raised that, in fact--you know, the time limit.
Is that correct, I mean, that employers can do that, can
speak out against unionization at any time?
Ms. Sencer. Many employers actually start inoculation to
unionization efforts at the time of hiring, when it is
considered that employees are most vulnerable to those types of
comments. They run constant campaigns, ``Come to management
first. We don't want any third party involved in our
relationship.'' And those happen regardless of whether or not
there is any union organizing campaign in place.
Mrs. Davis of California. Thank you.
Mr. Messenger, could you clarify for me whether or not it
is true or false that a worker can be fired for refusing to
attend the meeting that is held by the employer that offers the
employer's perspective on unionization? Can an employer be
fired for that?
Mr. Messenger. An employee?
Mrs. Davis of California. Yes, employee. I am sorry. Yes.
Mr. Messenger. Yes, I believe employers can require their
employees attend meetings on work time to discuss work issues,
which can include unionization.
Mrs. Davis of California. And if they aren't able to be
there, if they don't show up for whatever reason, they could be
fired?
Mr. Messenger. They could. I mean, it is part of a shift
meeting. So if the employer says, there is a shift meeting at 2
o'clock, everyone is required to attend, employees can't say, I
don't feel like it.
Mrs. Davis of California. Yeah. That sounds like quite a
bit of access.
Ms. Sencer, what do you see in terms of that requirement?
Ms. Sencer. Well, we call that the captive-audience
meeting. And we would like to eliminate them, but that is not
what this rule does. This rule doesn't eliminate the captive-
audience meeting. It allows the employer continued access to
the employees, as they are under current status quo, throughout
the entirety of the election period.
Mrs. Davis of California. Yeah. And that doesn't change?
Ms. Sencer. That doesn't change.
Mrs. Davis of California. Uh-huh. Okay. Thank you.
Could you also, Ms. Sencer, talk about the seven day
window? And where did that come from in the proposed rule?
Ms. Sencer. There is actually a board decision that was
issued by a Republican-majority board that says it should be, I
believe, five days or something of that nature.
In my practice, the regions that I deal with, most of the
regions on the west coast, but specifically I will talk to 20,
32, 21, and 31, which are the four regions that cover
California, we are regularly scheduled for a hearing within
seven days of the petition being filed as part of the status
quo.
The seven day rule inside the proposed rules is really just
a best-practice standardization process, where that is the
process that we have been using. And, in fact, Jones Day
attorneys on the other side regularly appear within those seven
days to have those hearings when a hearing is necessary.
But like Ms. Davis, my experience is that it does lead to
stipulated election agreements because the parties have the
pressure of a hearing sitting on them. The regions use that
pressure of the seven days to get to the hearing to help the
parties reach an agreement on a stipulated election agreement.
Mrs. Davis of California. Uh-huh. So any idea why you did
have members that you mentioned that were pushing for the five
days? They obviously thought that was sufficient.
Ms. Sencer. They obviously thought that was sufficient.
Seven days, I guess, is seen as a little more humane.
Mrs. Davis of California. Yeah.
I think what we are trying to talk about here is leveling
the playing field. And so sometimes some of the changes that
are being proposed by this rule actually can serve employers
equally. Can you describe a few of those?
Ms. Sencer. The union employee will be in the same position
as the employer when it comes to this. And so, in a
decertification petition or a petition to remove a due status,
they would be under the same rules of requiring to take
positions within seven days and having a hearing or a
stipulated agreement within seven days.
And, in fact, the pressure placed on a union in that
situation is stronger than the pressure placed on the employer,
because when we are in a decertification situation, there isn't
really a dispute about the scope of the bargaining unit. You
are going to use the bargaining unit as it is described in the
collective bargaining agreement. And there isn't a whole lot of
room, there isn't a reason to have a hearing, most of the time,
other than to discuss the time and date of the election, which
if the union refused to agree, under the proposed rules the
region would just set without a hearing. And that would balance
that part out.
Mrs. Davis of California. Yeah. Okay. Well, thank you very
much. I think my time is about to expire.
I yield back.
Chairman Kline. I thank the gentlelady.
Mr. Guthrie, you are recognized.
Mr. Guthrie. Thank you, Mr. Chairman.
I appreciate the witnesses for being here. I appreciate
your testimony today.
I have a question, I think, to Mr. Browne. You were asked
about how you were communicated with about this meeting, and
you--I think we established it was via email--
Mr. Browne. Yes, sir.
Mr. Guthrie.--which a lot of us either email or text now
more than we do other things. So my question is, the Society of
Human Resources Management contacted you?
Mr. Browne. Yeah.
Mr. Guthrie. How did they get your email address? Were you
compelled to provide that to them?
Mr. Browne. No, sir. I have allowed them to have my email
address. I am part of their activity with advocacy, so that we
already had that agreement, that I knew that they could email
me.
Mr. Guthrie. So your personal information was given to them
by choice?
Mr. Browne. Yes, sir.
Mr. Guthrie. In the rule that is on the Excelsior list, it
says, ``Under the proposed regulation, employers would be
required to provide an expanded Excelsior list, including each
employee's name, address, phone number, email address, work
location, shift information, and classification to the union
within two days of the petition for the election.''
In your experience, I mean, how do small employers keep
those records? And do you have any concerns about providing
your employees' personal information to any third party? I am
not talking just union, but any third party.
Mr. Browne. We do get information when people come on board
as new hires. And am I concerned that it gets shared outside of
us to any party? Yes, I am. We have a good relationship with
our employees, and they expect us to take care of them, and
that includes their personal information. So for it to be given
out to somebody without consent would be a concern.
Mr. Guthrie. Do you think your employees would object to
their information being shared without their permission?
Mr. Browne. Yes, I think so.
Mr. Guthrie. I mean, knowing your employees, you would do
that, as well?
Mr. Browne. Yes, sir.
Mr. Guthrie. Well, thank you.
That is my question, Mr. Chairman, and I yield back.
Chairman Kline. I thank the gentleman.
Mr. Grijalva, you are recognized.
Mr. Grijalva. Thank you, Mr. Chairman.
Ms. Sencer, let me go to the point that Ms. Davis was
making about the seven days. The California Agricultural Labor
Relations Act stipulates that elections are conducted in seven
days of the filing of an election petition. Share with us your
experience in that process, because we do have an example.
Ms. Sencer. Sure. In California, the agricultural workers
are allowed to organize under the California Agricultural Labor
Relations Act. It is a group of workers that is not protected
by the National Labor Relations Act.
Under the procedures used at the Ag Board, the petition
gets filed and the election is held within seven days. During
those seven days, first, the employer has an obligation to
provide all of the names and contact information of the
bargaining unit employees, including actual residences. One of
the things that we see on the NLRB Excelsior list currently is
P.O. boxes, but, actually, under the Ag Act, they are required
to give an actual street address where a person resides. And
during that seven days, the union has access to the employer's
facility. And the union goes on to the employer's property and
is part of a campaign, and the employer is running its anti-
campaign at the same time, and it seems to work out just fine.
Most employers can run an anti-campaign, if they so choose,
within seven days because there is a whole field of labor
management consultants and management lawyers whose job it is
to run anti-campaigns in short periods of time. And under the
Ag Act, we have not seen much problem with an actual election
being held within seven days.
Mr. Grijalva. Thank you.
Let me follow up with another question, if I may. As part
of the discussion by both the witnesses and members of the
committee, I think it was commented that you have to paint a
good picture, the union has to paint a good picture, so that
their information is about a good picture, much like
politicians do when they are contacting voters and tell them
only the good stuff about themselves. And then another comment
was made, but it is left to the people that are voting because
they should be sophisticated enough to know the difference and
to make the right decision.
I ask you that because, in the balance question that was
brought up, this proposed change would skew the balance,
according to the three other witnesses, in a very unfair way
toward employers. My question is, as we take a snapshot of as
it is now, what are those prerogatives that employers have that
employees don't have with regards to being able to unionize or
to ask for an election at a point?
Ms. Sencer. In the status quo, the employer has unfettered
access and can make its anti-union campaign as an ongoing
process regardless of whether or not there is actually a union-
organizing campaign in place. This rule doesn't change any of
that; that still allows the employer to do so.
The union does generally paint itself in its most positive
view. Most people do when going out to meet someone. They
introduce themselves--
Mr. Grijalva. Nobody on this dais does that, so that is a
shock to us.
Ms. Sencer. But the same is true of employers. When I go to
interview for a job, the employer doesn't tell me about the
lawsuits that have been filed against it; it doesn't tell me
about the disputes it has had in employee relations. It puts
out the best information that they have. They say, it is a
great place to work and everyone is happy here. It is up to me,
as the individual interviewing for that job, to see what I can
find if I want to dig deeper to determine if there is anything
negative about that employer and whether or not that makes a
difference in my decision to work for the employer.
And the same is somewhat true in the union situation,
although, if you go back to Mr. Holt's question as to why are
you against unionization, if the employer stays neutral because
it has no view on it, that is just fine also. And the employees
are sophisticated enough to make a decision--
Mr. Grijalva. And in the case of Chattanooga, the employer
was staying neutral, Volkswagen.
Ms. Sencer. Yes.
Mr. Grijalva. And the anti-union propaganda and campaign
was from the outside. The company itself had not hired the
teams of people to come in there and try to bust an election.
They came from the outside. It came from a Senator, it came
from a State Senator. And that is where the complaint will be
coming from. Am I--
Ms. Sencer. Yes, that is where the objection comes from.
There were members inside the plant who were against having a
union, and they were speaking freely--individuals inside the
plant, who are part of the proposed bargaining unit, who are
against unionization, and they were speaking freely. And that
conduct is not objectionable in the slightest. This was the
outside conduct that was really interfering with the election.
Mr. Grijalva. As a practitioner in labor law and in labor
relations, there is a whole industry that promotes itself as,
``I can stop this from happening to your place.'' Can you tell
us a little bit about that industry, how big it is and how rich
it is?
Ms. Sencer. It is huge.
The employers have the right to hire them, obviously. In my
field, in California, as soon as my client tells me who the
anti-union consultant is, the union-buster or persuader who is
going to come in is, we can tell you just about down to the
word the message that they are going to put out. It is an anti-
union campaign in a box, so to speak.
And they have lots of people who work for them. They come
straight on site. They start having one-on-one meetings with
employees inside the facility, with a supervisor from the site,
along with the consultant who is being brought in from the
outside. They come right in, they sit down, they have one-on-
one meetings, they have three-person meetings, they have
captive-audience meetings.
And this all happens very quickly. Generally, before we
have even signed the stipulated election agreement from the
date that a petition is filed, we will see those people on
site.
Chairman Kline. The gentleman's time has expired.
Mr. Rokita.
Mr. Rokita. I thank the chairman for the time.
I thank the witnesses. My apologies for not getting to hear
your testimony in person. I was at a, frankly, at a Budget
Committee meeting. 'Tis the season in Washington. But I did try
to read some of your testimony and had some questions regarding
that.
Before I get to that, though, I was wondering if Mr.
Messenger or Mr. Browne would want to respond at all to the
response made to the last question.
Mr. Messenger, anything to add or detract from what was
said? Is anything illegal about what--I heard the term ``rich''
being used. I don't know what that implied, or if the ``union-
busters'' were acting illegally or something? Is that what you
understood?
Mr. Messenger. No, in fact, you know, the persuader
industry exists because the NLRB rules are so tight on
employers of a land-mine field of all the things they can and
can't say, that they are forced to hire professionals who know
exactly what to say, as Ms. Sencer said, down to the letter,
because anything else could be construed to be an unfair labor
practice or objectionable.
So it is simply a way to get out opposing information
within the strict letter of the law.
Mr. Rokita. Absolutely. Thank you.
Mr. Browne, anything there? No? Okay. Just want to be fair.
Mrs. Davis, in Ms. Sencer's testimony, if I read it right,
she states, ``In cases where there is no stipulation and a
hearing is held, the election is not held until a minimum of 65
days and often longer after the petition is filed.'' However, I
also saw that most recent NLRB data indicates that 94 percent
of election are held within 56 days of the petition.
So, in your experience, is Ms. Sencer's estimate accurate?
And why are there delays?
Ms. Davis. Well, in my experience, even with a hearing,
usually an election is held no later than eight weeks after the
petition has been filed. There are going to be outliers that
affect the statistics, you know, when you get to the median and
the average. But, normally, and I advise clients of this, that
without a hearing, with a stipulated election agreement, the
election is going to be in six weeks; with a hearing, it is
probably going to be in eight weeks. So there is maybe a two
week differential.
And the reason why there is sometimes a two week
differential for a hearing to be held is because very important
bargaining unit issues and individual eligibility issues are
being determined in that hearing process prior to the election
so that the employer, the employees, and the union know who is
actually eligible to vote and who can vote.
As I said earlier in my testimony, that determination is
extremely important when it comes to who is a supervisor and
who isn't. Because supervisory conduct binds the employer. And
when it is not known whether, in fact, an individual is a
supervisor or not, that person can break the rules, bind the
employer, and lead to a rerun election.
So those issues are very important and should be determined
prior to the election being held. The rules will not allow that
unless the issue affects more than 20 percent of the bargaining
unit.
Mr. Rokita. How? Deficiency, unfairness in these rules?
Ms. Davis. I don't think that it is going to lead to any
more efficiencies. I think what may--
Mr. Rokita. I meant to say deficiencies, sorry, and
unfairness in these rules as currently written. Is that what
you are saying?
Ms. Davis. Yes. Yes.
And under the proposed rules, it is my position that it may
lead to quicker elections, maybe, but it is not going to lead
to quicker collective bargaining or collective bargaining
agreements. Because issues are now going to be deferred until
after the election. And until those issues are resolved, the
union is not going to be certified and there is going to be no
obligation to bargain.
So a lot of the concerns that we heard about some years
back when there were discussions of the Employee Free Choice
Act about how long it takes to get a first contract negotiated,
those issues are going to be exacerbated by these rules, in my
opinion, because the collective bargaining is going to be
delayed because there is not going to be--these issues aren't
going to be decided and there is not going to be a
certification.
That also puts a tremendous burden on employers, as Ms.
Sencer testified earlier about the laboratory conditions or the
``bubble,'' I believe she called it. It would require the
employer to maintain those conditions all during that time.
Mr. Rokita. Thank you.
Switching back to Mr. Messenger, again, referring to Mrs.
Sencer's testimony, she states, ``In virtually all the cases
where clients have filed election petitions, the employers had
been aware of the organizing efforts prior to the filing.''
In your experience, then, do the employers always know an
organizing effort is under way prior to the petition? And is it
important for employers to know?
Mr. Messenger. Employees often don't know or, at the very
least, they don't know the imminence.
So, for example, especially in a large facility, the union
only needs 30 percent of the unit to sign a petition in order
to get an election. If you are in a hospital on the second
shift, you might not know what is going on the first shift.
And, even more importantly, you don't know the actual
timeframe. So you might hear through the grapevine that someone
was visited by a union organizer. What does that mean? Is there
going to be an election tomorrow? Is there going to be an
election next year? It is uncertain. So there is really no
notice beforehand of exactly what is coming.
Chairman Kline. The gentleman's time has expired.
Mr. Bishop?
Mr. Bishop. Thank you, Mr. Chairman.
I thank the panel for being here.
I kind of want to pick up on where Representative Holt was
going, which is the big picture of why--why there seems to be
such great determination to thwart efforts to organize. And I
want to put three facts on the table.
The first is we have been measuring these two statistics I
am about to cite since World War II. Corporate profits as a
percentage of the economy are higher than they have ever been.
At the same time, total payroll compensation--that is to say,
the total amount of money people make--is lower than it has
ever been. That is fact one.
Fact two: Seventy percent of our economy is rooted in
consumer spending. And most economists tell us that the reason
that our economy is struggling is that there is slack in the
economy, there is insufficient demand in the economy, people
aren't spending enough money.
And, thirdly, the share of unionization in the private
sector workforce is at 6.7 percent--6.7 percent--the lowest it
has been in 100 years.
And so my question is--my question is, do any of you--and I
am going to start with you, Mr. Messenger--do you think these
statistics are completely unrelated, totally coincidental that
the proportion of our workforce that is unionized is lower than
it has been in 100 years but also total payroll compensation as
a share of the economy is lower than it has ever been? Is that
totally a coincidence? Or could there possibly be some causal
relationship there?
I am going to ask you, Mr. Messenger, and, Mr. Browne, I am
going to ask you. But I also have another question, so I am
going to ask you to answer quickly.
Mr. Messenger. Thank you.
I am not an economist, so I can't speak directly as to
cause and effect as to those issues. However, it does sort of
appear to me, as an economic layman, that increasing
unionization is not a way to increase the competitiveness of
American businesses, especially those that have to compete with
those overseas.
Mr. Bishop. But hear me. Total corporate profits as a
percentage of the economy are higher than they have ever been.
So that sounds to me like our corporations are doing pretty
well in terms of competition, no?
Mr. Messenger. Again, I can't speak to, you know, the
economics of exactly how that works. But what I can tell you is
that, to the extent the argument is that the government should
therefore lean in favor of unionization and impose that upon
employees--
Mr. Bishop. Nope.
Mr. Messenger.--because supposedly that is in the best
interest--
Mr. Bishop. Nope. But that is not what the government is
saying. What the government is saying is, let's have an
election process that is free, fair, open, and, in the words of
Mr. Browne, achieves the delicate balance that presumably still
exists.
Mr. Messenger. I don't see how the conclusion flows from
the premise. The premise is there is not enough unionization,
therefore--
Mr. Bishop. All right, I am asking you. Union workers make
more than non-union workers in the main, correct?
Mr. Messenger. I don't know. I can supplement testimony to
that. But I can tell you that most of the States that are
economically growing are right-to-work States with low levels
of unionization.
Mr. Bishop. Mr. Browne?
Mr. Browne. Similarly to Mr. Messenger, I don't think I can
really comment as to how the economics of things works, whether
it would be directly correlated. So it would be hard for me to
comment.
Mr. Bishop. It seems to me, if we have an economy that is
70 percent rooted in consumer spending and our economy is
struggling because there is slack demand, it seems to me that
what we want to do is create an environment in which people who
live paycheck to paycheck have slightly larger paychecks so
that they can spend more. And it seems to me that the efforts
that at least Mr. Messenger's organization is actively engaged
in going in the exact opposite direction.
Let me move to one more thing. You used the term ``delicate
balance'' that currently exists. Under current law, union
organizers cannot even go onto the property of a workplace
unless they are invited. Yet Mr. Messenger just testified that
an employee can be fired for failing to attend a captive-
audience meeting in which the detriments of unionization are
presented.
Does that fall under anyone's reasonable definition of a
delicate balance?
Mr. Messenger?
Mr. Messenger. I would say it does, because the important
thing here, it is the employer's property and it is their paid
work time. So it is their property, it is what they are paying
the individuals to do. So, as any other private citizen, they
should be able to do what--
Mr. Bishop. All the cards rest with the employer. You are
telling us how difficult it is for the employer, yet you are
also saying that the employer can conduct captive-audience
meetings and do so with impunity, and yet the organizers have
no access to the workplace at all, and that is fine, that falls
under the heading of a delicate balance?
Chairman Kline. The gentleman's time has expired.
Dr. Bucshon?
Mr. Bishop. Thanks, Mr. Chairman.
Mr. Bucshon. Thank you, Mr. Chairman.
Ms. Sencer must think this is funny, but I certainly don't.
This is a serious hearing.
Ms. Sencer, do you believe in the First Amendment?
Ms. Sencer. Absolutely.
Mr. Bucshon. Does that apply to everyone?
Ms. Sencer. Absolutely.
Mr. Bucshon. As you are aware, the President of the United
States came out and--publicly came out in favor of unionization
of the plant in Tennessee. But since that doesn't disagree with
what you agree with, I guess other members of the government
can't voice their First Amendment rights.
Ms. Davis, a question to you.
Ms. Sencer. Do I get to answer that?
Chairman Kline. It is his time.
Mr. Bucshon. It is my time.
Chairman Kline. Dr. Bucshon's time.
Mr. Bucshon. Ms. Davis, Ms. Sencer said that employers can
campaign constantly. Is there a limitation on captive-audience
speeches?
Ms. Davis. Yes. Captive-audience speeches cannot be held 48
hours before the election.
Mr. Bucshon. And does reducing the time between petition
and election affect this at all?
Ms. Davis. Affect the number of--
Mr. Bucshon. Yeah, affect the time.
Ms. Davis. Absolutely, because it is still 48 hours, and it
is a short time period. So it is going to definitely shorten
the amount of time the employer has to have captive-audience
meetings if the employer so chooses to have them.
Mr. Bucshon. Thank you.
Mr. Messenger, in Ms. Sencer's testimony, she states that
providing employee phone numbers and email addresses is no more
intrusive than providing a home address. Certainly, providing
an employee's home address is intrusive.
In your experience, do unions visit employees' homes and
call their phones during an organizing drive?
Mr. Messenger. Yes, if they do have the telephone numbers,
which usually they would only get under an organizing agreement
because they can't get it under current board procedures. But,
yes, they absolutely visit employees' homes, sometimes
repeatedly, to either convince them to not oppose the union or
to support the union, yes.
Mr. Bucshon. By the way, I just wanted to say that my dad
is a retired United Mine Worker, and I have a great deal of
respect for the workers' rights to organize and collectively
bargain as long as there is a fair playing field. I wanted to
say that. I forgot to say that at the beginning.
How have employees described the interactions, Mr.
Messenger? You have these interactions at their homes. Does
anybody talk about that?
Mr. Messenger. Yes. In my experience, I think the main
thing that comes away, from my experience, is it is persistent.
A lot of times they say, ``I'm not interested, go away,'' and
the union comes back anyways.
As far as the actual interaction, it varies. Sometimes it
is the soft sell. It is the college student that says, just
sign this just to show that--so the union knows that I visited
here. It is actually a union authorization card. Other times it
is a more intimidating visit of several large men, you know,
saying, we want you to support the union. It just varies upon
the circumstance and what the union believes will be most
effective.
Mr. Bucshon. Okay. Thank you.
Chairman, I yield back.
Chairman Kline. I thank the gentleman.
Mr. Loebsack?
Mr. Loebsack. Thank you, Mr. Chair.
This really has been a pretty good hearing. It has been
very informative, and I appreciate all the witnesses who have
been here.
I have a few questions, but I first want to go back to what
Mr. Bishop said and add to his three data points. I don't have
all the specifics, but I do know that our workforce has become
ever more productive. So add that to the other arguments that
were made by Mr. Bishop. We have a more productive workforce
than we have had really ever, I think. And over the course of
the last few decades, we have seen that increase that much
more.
That leads me to believe, certainly, that our workers
deserve to have a better deal. There is no question about it.
If they are going to do more and they are going to produce
more, then I think they do deserve a better deal. And I think
that is where unions come in. I think unions can provide a
better deal for those workers.
And I like the idea of a delicate balance, because that is
something that is really important. Of course we have to take
into account the employer's concerns. Of course we have to take
into account the employee's concerns. There is no question
about that.
I have some concerns about this whole timeframe issue that
we have been talking about here--six weeks, eight weeks,
whatever, for an election. I don't know if folks here are aware
of the fact that the 2010 election in Great Britain was one
month long--one month long--a national election in a first-
world country, in a European country. Think about that. And
here we are arguing about whether this ought to be six weeks or
eight weeks or whatever the case may be.
I am a little bit--I guess it is sort of the Iowan in me, I
kind of wonder, well, how long should this be for all the
arguments to get out, for both sides to make their arguments
and make sure they have access to the folks they are trying to
influence? I don't really know how long that should be.
But I want to ask you, Mr. Messenger, in an ideal world,
how long should that election take? How long should it be?
Mr. Messenger. I don't know if I have a number, you know,
to pull out. But I do know in the 1959 amendments 30 days was
suggested, and I believe that was ultimately not accepted
because it was considered to be too short.
Mr. Loebsack. Right.
Mr. Messenger. But that was a number put out there in 1959
in those amendments.
Mr. Loebsack. But it has not been 30 days. Right, Ms.
Sencer? What are the numbers again?
Ms. Sencer. Well, I mean, I dispute the idea that with a
hearing you actually get there in eight weeks. I just want to
kind of clarify that point first.
When a petition is filed and a hearing is held, when a
notice of the hearing goes out for a seven day hearing and the
employee requests and is granted a week extension, you are
already at 14 days.
Mr. Loebsack. All right.
Ms. Sencer. You then have the hearing itself. The employer
and the union, if the union so chooses to do it, have an
opportunity to file a post-hearing brief. That is another week.
You are already at 21 days.
Then the regional director has to issue a decision and
direction of election. That usually takes about two to three
weeks. You can see how this is growing.
Mr. Loebsack. Uh-huh.
Ms. Sencer. Now we are up to 42 days.
Mr. Loebsack. Right.
Ms. Sencer. And when they do issue that decision and
direction of election, it allows for 25 days for review to be
held by the board prior to the election being scheduled. So the
election will be scheduled, but it will be scheduled for the
26th or the 30th day out.
So, at that point, you are over two months. You are well
over two months even in your best-case scenario, where the
regional director issues the decision promptly and the employer
does not take the appeal and the hearing only takes one day and
the employer does not request and is granted additional time
above the seven days to file their post-hearing brief. It is
too long.
It would be great if we could get to 30 days. Personally, I
would like to see it be less. But guaranteeing that elections
were held in 30 days, as compared to 56, which is the current
average that they talk about, would be a significant
improvement for the workers who, during that period of time
while the petition is pending before the election is held, are
subject to, as the statistics show, increasing amounts of
unfair labor practices.
Mr. Loebsack. All right.
Mr. Messenger, I have a basic question about the process we
are talking about here. Do you believe in the legitimacy of the
process?
Mr. Messenger. Of the current board procedures?
Mr. Loebsack. Right, of the National Labor Relations Act
and the NLRB and just having elections for unions in the first
place? Do you believe in the legitimacy of it?
Mr. Messenger. No. I believe that each individual should be
free to choose whether or not they wish to support a union,
that exclusive union representation shouldn't be imposed on any
individual. Even if 90 percent of their coworkers wish to
support a union, that is no justification for forcing the union
on the dissenting 10 percent.
Mr. Loebsack. I appreciate that. Thank you for your
forthrightness.
Thank you all.
And I yield back. Thank you.
Chairman Kline. I thank the gentleman.
Ms. Bonamici, recognized.
Ms. Bonamici. Thank you, Mr. Chairman.
And to our witnesses, thank you. This has been an
interesting hearing. And this is an important issue for the
committee to consider because it is really, at a basic level,
about good jobs for our constituents, growing the economy, and,
as others have mentioned, really looking at the decline of the
middle class.
And the National Labor Relations Act is intended to protect
workers' rights to organize and to collectively bargain and to
make sure that employers are treating employees fairly through
that process. And I want to reflect a little bit about the
history.
I actually grew up, even though I represent a great
district in the State of Oregon, which is now my home State for
many years, I grew up just outside of Detroit. My grandfather
worked at Ford Motor Company both before and after the UAW.
And when we really look at what happened, when, you know,
people were beaten and punched and kicked, I think we have come
a long way since those days. But when we reflect on that
history and the need to really protect the process for workers,
it is important to remember how far we have come but also how
important it is.
As we now in Congress look for ways to get the economy back
on track and our country back to work, we should be asking how
we can support our workers' rights to choose a union, and not
erode those rights. And it is about finding that right balance.
So, in your testimony, Ms. Sencer, you state that employers
are aware of union-organizing efforts before a petition is
filed. I know that you also suggest that some employers have
these anti-union inoculation programs in place. I wonder if you
could expand on those a little bit. How are they aware? Talk a
little bit about some of the anti-union inoculation programs.
And I also want to mention briefly that, my home State of
Oregon, the legislature actually banned captive-audience
meetings. That was challenged in the courts and upheld at the
State level. So some States are taking action.
So please expand.
Ms. Sencer. The employers generally know because employees
talk and employers listen. So every meeting that a union holds
in an organizing campaign, they presume that at least one
person in that room is actually going to go back and tell their
manager that they were involved in the meeting.
You see it through social media, where people are friends
on Facebook with a supervisor and they posted that they have
been to a meeting and are learning about a union. You see it
where a group of people who don't usually have lunch together
will go out and have lunch at a restaurant across the street. A
manager will do a walk by that restaurant and determine, oh,
they are meeting with someone we don't know and there is a
union sticker there.
The employers just gain knowledge by watching their
workforce, and they generally notice well before a petition is
filed. And that is when the anti-campaign starts. You know that
is when the anti-campaign starts and that the employer has
knowledge because the statistics all show and experience plays
out that some of the worst unfair labor practices happen in an
attempt to get the petition not to be filed.
If you fire a leader right before the petition is going to
be filed, the union does not file--or expected to be filed, the
union generally doesn't file the petition right then. The
support isn't there because the workers are scared. They have
seen what happens to an employee who speaks out or is looking
to speak out in favor of unionization.
The anti-campaigns that the employer runs walk the line of
what is acceptable conduct and acceptable speech. They can't
make threats--they can't make explicit threats or provide
explicit benefits once the petition is filed. But there has
been definitely more than one occasion where in the period
right before the petition is filed an employer grants a wage
increase.
Ms. Bonamici. Thank you.
And, earlier, Ms. Davis said under the new rules there
wouldn't be an opportunity to litigate bargaining unit issues
before an election. Do you agree with that?
Ms. Sencer. I don't. The limitation on the prehearing
election would be dependent upon the size of the dispute that
is in question. If it doesn't affect more than 20 percent, you
wouldn't do it in advance. If it affects less than 20 percent,
the employees who were involved would vote subject to a
challenge ballot procedure, and that would then be resolved
after the election if those are determinative.
And when it comes to the supervisory issue, which can be
kind of tricky sometimes--it is not always immediately clear--
both sides run the same risk of using those employees as part
of the organizing campaign.
If the union uses someone to solicit cards from other
employees who is later found to be a supervisor, then the
entirety of the election is tainted, just the same way that if
the employer uses someone who is later found to be not a
supervisor or is a supervisor in part of the unit, they would
also taint the election.
Ms. Bonamici. Thank you.
And, quickly, we have heard about the more than 65,000
comments that were submitted, and there is a suggestion that
those weren't considered. Is there any reason to believe--I
assume that the comments were not all one-sided. Is there any
reason to believe that the NLRB did not consider the comments
in formulating this rule?
Ms. Sencer. There is no reason to presume that they have
not been considered or will be considered. Since we are still
in the proposed rulemaking stage, a final rule hasn't been
issued yet.
Ms. Bonamici. And from the others--I still have a few
seconds--is there any reason to believe that the NLRB is not
considering the comments?
Mr. Messenger. I would say because they issued the exact
same rule again. They proposed this rule in 2011; there were
60,000-some comments. And then this year, just two weeks ago,
three weeks ago, they issued the exact same rule verbatim. They
didn't take any of the comments into consideration. They just
said, here it is again.
And so I think that indicates that they didn't consider
those comments, and it is questionable whether they will
consider them now.
Ms. Bonamici. Thank you.
And I see my time has expired.
Chairman Kline. The gentlelady's time has expired.
Ms. Bonamici. Thank you, Mr. Chairman.
Chairman Kline. Mr. Pocan?
Mr. Pocan. Sure. Thank you, Mr. Chairman. I appreciate the
chance to have a hearing about the NLRB and elections.
And I come from a fairly, I think, unique perspective, is
that I am a small-business owner of a specialty printing firm
who is a union shop. So I come from a little bit of management
and understand the labor perspective.
And, you know, I am glad that we get a chance to talk
about, I think, what happened three weeks ago in Tennessee,
which was really a travesty. The fact that the only Volkswagen
plants that don't have these worker counsels or unions are in
Russia, China, and Chattanooga should be a bit of concern to
begin with. But the fact that the company was in general
supportive, but it was outside players who came in.
And I would like to pick up a little bit from where Mr.
Tierney was, if I could, Mr. Messenger, with you, is, on the
amicus that you filed, specifically, I guess, against a member
on this committee, but you say, ``Employers could enlist a
mayor to inform employees that union representation will result
in the loss of their employer's contracts within the city. The
various manners in which politicians could use the cloak of
government authority to mislead employees to vote for or
against union representation is endless.''
And I just, again, want you to take a look at that quote
from Senator Corker. And, you know, just in the spirit of, I
guess, intellectual honesty, isn't it imperative that the board
find objectionable conduct by government officials that can be
constructed as official action to effect an election, isn't
that what the Senator is doing?
Mr. Messenger. No. What happened in Trump Plaza is that
representatives were--
Mr. Pocan. No , I didn't ask you about Trump Plaza. What I
am asking you about is Senator Corker's statement.
So from what you just said about someone coming and trying
to influence an election or elect a government official using
that cloak of authority, you don't see a cloak of authority in
a U.S. Senator from the State saying that they are about to get
another line of SUVs if they don't certify the union? And even
though the company said that is not true, they said the company
had old talking points, you don't find that to be in the spirit
of your filing?
Mr. Messenger. No, because, if anything, Senator Corker's
statement disclaimed an earlier statement by a member of
Volkswagen management, actually, a board of directors, part of
IG Metall, which is the German union, which suggested they
wouldn't get additional work without a workers' council.
Mr. Pocan. So you are not answering the question again. You
are a lawyer; I am not. So let's try answering the question the
way, you know, I would.
You don't find that statement at all--in the spirit of what
you said in your brief, you don't find that is what that person
is doing right there; Senator Corker is trying to influence the
question with that statement? A yes-or-no answer. It is pretty
simple.
Mr. Messenger. Was he trying to influence the election?
Mr. Pocan. Yeah.
Mr. Messenger. He may have been trying to put out
information about it. Would I find that--
Mr. Pocan. Okay, so you don't want to answer that.
Let me try a different person, State Senator Bo Watson.
State Senator Bo Watson said, ``The members of the Tennessee
Senate will not view unionization in the best interest of
Tennessee. It will be exponentially more challenging for the
legislature to approve future subsidies.'' So now he is
threatening subsidies.
Was Senator Bo Watson in the spirit, intellectual honesty,
in the spirit of your briefing, in violation?
Mr. Messenger. No.
Mr. Pocan. No.
Mr. Messenger. Because he was not trying to impersonate an
official board process.
Mr. Pocan. So the fact that he is on the Commerce and Labor
Committee doesn't change your opinion.
Mr. Messenger. No. And, actually--
Mr. Pocan. And the fact that he is on the Ways and Means
Committee that affects the finances of the State doesn't change
your opinion.
Mr. Messenger. There is no question about who he is, but
what--
Mr. Pocan. Well, how about the fact that he is the
president pro tem of the Senate? This is a guy who pulls
strings and can get things done. And when he says, you are
going to lose this, you didn't see that as undue influence in
the spirit of your briefing?
Mr. Messenger. I do not. And I request the permission to--
Mr. Pocan. All right. I appreciate that.
Mr. Messenger.--file a supplemental briefing on this to try
to clarify this legal issue, because I don't know if I will be
getting an opportunity to fully express why it is
distinguishable as a legal matter.
Mr. Pocan. Yes. I just think, you know, it seems like there
may be a little bit of intellectual honesty issues in what I
read in your very words, and I see in the statement from
Senator Corker and from the State Senator, Senator Watson, and
yet you don't seem to have a problem.
Mr. Messenger. I--
Mr. Pocan. You know, my perspective, I guess, as an
employer--let me just take the broader on this. You know, I
have basically all the face cards, and most have big numbers,
in a poker game as an employer when it comes to an election
like this. Right? I have the ability to hire someone, to fire
someone, to give someone a pay raise, to promote them or not,
to set their hours. So the fact that--and what the NLRB is
doing is trying to make sure we have as equal a playing field
when it comes to these elections.
So, you know, you brought up some of the concerns about
trying to share this data. I guess, a question for Ms. Sencer.
One would be, can an employer currently use an email to contact
an employee about the election?
Ms. Sencer. Absolutely.
Mr. Pocan. And can they use a telephone to do the same?
Ms. Sencer. Absolutely.
Mr. Pocan. So really this is about evening the playing
field between what the employer can do to contact and what the
union can do to contact?
Ms. Sencer. Yes. And it is not unusual, actually, for an
employer to include an insert in a pay statement with their
wages that gives a message about anti-union--
Mr. Pocan. Okay.
And just really quickly in the remaining seconds I have, do
you think the statements by Senator Corker and Senator Watson
are in violation and should cause a new election by the NLRB?
Ms. Sencer. I do think that they are probably going to be
found to be objectionable, resulting in a rerun election, yes.
Mr. Pocan. Thank you.
Chairman Kline. The gentleman's time has expired.
I want to certainly thank the witnesses and yield time to
Mr. Miller for any closing remarks he may have.
Mr. Miller. I have no further remarks. I thank the
witnesses very much for their participation today.
Chairman Kline. I thank the gentleman.
I also want to thank the witnesses. Very expert testimony.
I appreciate your forbearance sometimes and your willingness to
engage in the debate and the discussion. We appreciate your
time.
There being no further business, the committee stands
adjourned.
[Questions submitted for the record and their responses
follow:]
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[Mr. Browne's response to questions submitted for the
record follows:]
[Whereupon, at 12:02 p.m., the committee was adjourned.]
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