    [House Hearing, 114 Congress]
    [From the U.S. Government Publishing Office]

                   H.J. RES. 29, PROVIDING FOR CONGRESSIONAL
                    DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5,
                   UNITED STATES CODE, OF THE RULE SUBMITTED
                        BY THE NATIONAL LABOR RELATIONS
                        BOARD RELATING TO REPRESENTATION
                                CASE PROCEDURES

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

                                    HEARING

                                   before the

                            SUBCOMMITTEE ON HEALTH,
                        EMPLOYMENT, LABOR, AND PENSIONS

                             COMMITTEE ON EDUCATION
                               AND THE WORKFORCE

                         U.S. House of Representatives

                        ONE HUNDRED FOURTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                 HEARING HELD IN WASHINGTON, DC, MARCH 4, 2015
                                   __________

                                Serial No. 114-4
                                   __________

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

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                                       or
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                                       ______

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                    COMMITTEE ON EDUCATION AND THE WORKFORCE

                        JOHN KLINE, Minnesota, Chairman

    Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott,
    Virginia Foxx, North Carolina            Virginia
    Duncan Hunter, California              Ranking Member
    David P. Roe, Tennessee              Ruben Hinojosa, Texas
    Glenn Thompson, Pennsylvania         Susan A. Davis, California
    Tim Walberg, Michigan                Raul M. Grijalva, Arizona
    Matt Salmon, Arizona                 Joe Courtney, Connecticut
    Brett Guthrie, Kentucky              Marcia L. Fudge, Ohio
    Todd Rokita, Indiana                 Jared Polis, Colorado
    Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
    Joseph J. Heck, Nevada                 Northern Mariana Islands
    Luke Messer, Indiana                 Frederica S. Wilson, Florida
    Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
    David Brat, Virginia                 Mark Pocan, Wisconsin
    Buddy Carter, Georgia                Mark Takano, California
    Michael D. Bishop, Michigan          Hakeem S. Jeffries, New York
    Glenn Grothman, Wisconsin            Katherine M. Clark, Massachusetts
    Steve Russell, Oklahoma              Alma S. Adams, North Carolina
    Carlos Curbelo, Florida              Mark DeSaulnier, California
    Elise Stefanik, New York
    Rick Allen, Georgia

                        Juliane Sullivan, Staff Director
                     Denise Forte, Minority Staff Director
                                     ------

            SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                       DAVID P. ROE, Tennessee, Chairman

    Joe Wilson, South Carolina           Jared Polis, Colorado,
    Virginia Foxx, North Carolina          Ranking Member
    Tim Walberg, Michigan                Joe Courtney, Connecticut
    Matt Salmon, Arizona                 Mark Pocan, Wisconsin
    Brett Guthrie, Kentucky              Ruben Hinojosa, Texas
    Lou Barletta, Pennsylvania           Gregorio Kilili Camacho Sablan,
    Joseph J. Heck, Nevada                 Northern Mariana Islands
    Luke Messer, Indiana                 Frederica S. Wilson, Florida
    Bradley Byrne, Alabama               Suzanne Bonamici, Oregon
    Buddy Carter, Georgia                Mark Takano, California
    Glenn Grothman, Wisconsin            Hakeem S. Jeffries, New York
    Rick Allen, Georgia

                                C O N T E N T S

                                  ----------
                                                                       Page

    Hearing held on March 4, 2015....................................     1

    Statement of Members:
        Byrne, Hon. Bradley, a Representative in Congress from the
          State of Alabama...........................................     1
            Prepared statement of....................................     3
        Polis, Hon. Jared, Ranking Member, Subcommittee on Health,
          Employment, Labor, and Pensions............................     4
            Prepared statement of....................................    10

    Statement of Witnesses:
        Crawford, Ms. Brenda, Registered Nurse, Murrieta, CA.........   104
            Prepared statement of....................................   106
        King, Mr. Roger, Senior Labor and Employment Counsel,
          Washington, DC.............................................    12
            Prepared statement of....................................    15
        Perl, Mr. Arnold E., Member, Glankler Brown, Memphis, TN.....   109
            Prepared statement of....................................   111
        Taubman, Mr. Glenn M., Staff Attorney, National Right to Work
          Legal Defense and Education Foundation, Inc., Springfield,
          VA.........................................................    23
            Prepared statement of....................................    25

    Additional Submissions:
        Mr. King:
            Appendix A...............................................   151
            Exhibit B................................................   153
            Exhibit C................................................   154
            Appendix D...............................................   155
        Mr. Polis:...................................................
            Statement of Administration Policy.......................     5
            Prepared Statement of United Steelworkers International
              Union..................................................     8
        Wilson, Hon. Frederica S., a Representative in Congress from
          the State of Florida:
            Prepared statement of....................................   161

                          H.J. RES. 29, PROVIDING FOR
                        CONGRESSIONAL DISAPPROVAL UNDER
                      CHAPTER 8 OF TITLE 5, UNITED STATES
                       CODE, OF THE RULE SUBMITTED BY THE
                         NATIONAL LABOR RELATIONS BOARD
                        RELATING TO REPRESENTATION CASE
                                   PROCEDURES

                                  ----------

                            Wednesday, March 4, 2015

                            House of Representatives

                                Subcommittee on

                    Health, Employment, Labor, and Pensions

                    Committee on Education and the Workforce

                                Washington, D.C.

                                  ----------

        The Subcommittee met, pursuant to call, at 10:01 a.m., in
    room 2175, Rayburn House Office Building, Hon. Bradley Byrne
    presiding.
        Present: Representatives Foxx, Walberg, Guthrie, Byrne,
    Carter, Grothman, Allen, Polis, Courtney, Pocan, Bonamici,
    Takano, and Scott.
        Staff present: Ed Gilroy, Director of Workforce Policy;
    Marvin Kaplan, Workforce Policy Counsel; Nancy Locke, Chief
    Clerk; John Martin, Professional Staff Member; Zachary McHenry,
    Legislative Assistant; Daniel Murner, Deputy Press Secretary;
    Brian Newell, Communications Director; Krisann Pearce, General
    Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce
    Policy; Alissa Strawcutter, Deputy Clerk; Alexa Turner,
    Legislative Assistant; Joseph Wheeler, Professional Staff
    Member; Tylease Alli, Minority Clerk/Intern and Fellow
    Coordinator; Austin Barbera, Minority Staff Assistant; Amy
    Cocuzza, Minority Labor Detailee; Denise Forte, Minority Staff
    Director; Melissa Greenberg, Minority Labor Policy Associate;
    Eunice Ikene, Minority Labor Policy Associate; Brian Kennedy,
    Minority General Counsel; Richard Miller, Minority Senior Labor
    Policy Advisor; Veronique Pluviose, Minority Civil Rights
    Counsel; and Rayna Reid, Minority Labor Policy Counsel.
        Mr. Byrne. A quorum being present, the Subcommittee on
    Health, Employment, Labor, and Pensions will come to order.
        Good morning. I would like to extend a warm welcome to our
    guests and thank our witnesses for joining us.
        I would also like to note the continued absence of our dear
    friend, colleague, and subcommittee chair, Dr. Phil Roe. And I
    ask that all my colleagues continue to lift Dr. Roe and his
    family up in your prayers.
        We are here today to discuss House Joint Resolution 29,
    which provides for congressional disapproval under the
    Congressional Review Act of the National Labor Relation Board's
    recently released rule that would drastically affect
    longstanding policies governing union elections.
        For those members who served on this committee in previous
    Congresses, our discussion today may elicit a dreadful sense of
    deja vu. That is because for nearly four years the Obama
    National Labor Relations Board has sought to radically alter
    longstanding policies governing union elections. And as the
    board pursued this misguided effort, House Republicans, led by
    this committee, have consistently fought to defend the rights
    of American workers and job creators.
        The stated purpose of the board's rule is to shorten the
    time between the filing of a petition for a union election and
    the election date. The board achieves this in a number of
    troubling ways, such as limiting the opportunity for a full and
    fair hearing of issues that may arise during the election
    proceedings and denying parties an opportunity to raise certain
    contested issues to the board. The board's rule also grants
    union organizers unprecedented access to employees' personal
    information.
        These are by no means modest changes, and they go far
    beyond simply modernizing the election process. In truth, the
    board's real goal is to dramatically tilt the outcome of
    elections in favor of union leaders by ambushing employers and
    workers without allowing them to fully understand their
    decision.
        The American people are on the losing end of the board's
    extreme culture of union favoritism.
        The board's rule eviscerates the right of employers to
    speak freely to employees during an organizing campaign.
    Roughly 70 years ago, Congress amended the National Labor
    Relations Act to ensure employers have an opportunity to
    communicate with employees about union representation.
        Congress took this action not only to promote the voices of
    employers, but also to protect employee choice through a robust
    debate of important issues. And let's make sure we understand
    this: this affects employees as much, if not more, than it
    affects employers. The board is overturning by executive fiat
    what Congress has expressly permitted by law.
        The board's rule also severely cripples the right of each
    worker to make an informed decision. Deciding whether or not to
    join a union is a deeply personal choice. The outcome of that
    choice will affect workers' wages, benefits, and other
    employment concerns for years.
        And as the board itself has held in a union environment
    workers can get more, they can get same, or they can get less.
    That is what the National Labor Relations Board has said. So
    this could affect workers in a negative way.
        Workers deserve an opportunity to get the facts and discuss
    these matters with their friends, family members, coworkers,
    and yes, their employers as well. Under this administration,
    the National Labor Relations Board is determined to deny
    workers this fundamental right.
        Finally, adding insult to injury, the board is placing the
    privacy and safety of American workers and their families in
    jeopardy. There is absolutely no reason why union organizers
    need employees' phone numbers, e-mail addresses, work
    schedules, and home addresses. Union coercion and intimidation
    is real, and it is our responsibility to help stop it.
        It is for these reasons this resolution is so urgently
    needed. In the past, Congress has tried offering a legislative
    response to the board's ambush election rule--one that would
    ensure workers, employers, and unions continue to enjoy
    protections that have been in place for decades.
        I want to thank Chairman Kline for his continued leadership
    in this area. Unfortunately, our Democratic colleagues in the
    Senate refuse to stand with us.
        However, I am hopeful that with new allies in the Senate
    and the authority vested in Congress through the Congressional
    Review Act we will send to the President a resolution that
    reins in this activist board and rolls back this destructive
    regulatory scheme. The President will then have to decide
    whether he stands with big labor or with the nation's workers
    and job creators.
        I urge the President and every member of Congress to choose
    the latter by supporting H.J. Res. 29.
        With that, I will now recognize the subcommittee's ranking
    member, Representative Polis, for his opening remarks.
        Mr. Polis?
        [The statement of Mr. Byrne follows:]

    Prepared Statement of Byrne, Hon. Bradley, a Representative in Congress
                           from the State of Alabama

        Good morning. I'd like to extend a warm welcome to our guests and
    thank our witnesses for joining us. I would also like to note the
    continued absence of our dear friend, colleague, and subcommittee
    chair, Dr. Phil Roe, and I ask all my colleagues to continue lifting
    Dr. Roe and his family up in your prayers.
        We are here today to discuss House Joint Resolution 29, which
    provides for Congressional disapproval under the Congressional Review
    Act of the National Labor Relations Board's recently released rule that
    would drastically affect longstanding policies governing union
    elections.
        For those members who served on the committee in previous
    congresses, our discussion today may elicit a dreadful sense of deja
    vu. That's because for nearly four years, the Obama National Labor
    Relations Board has sought to radically alter long-standing policies
    governing union elections, and as the Board pursued this misguided
    effort, House Republicans, led by this committee, have consistently
    fought to defend the rights of America's workers and job creators.
        The stated purpose of the board's rule is to shorten the time
    between the filing of a petition for a union election and the election
    date. The Board achieves this in a number of troubling ways, such as
    limiting the opportunity for a full and fair hearing of issues that may
    arise during the election proceedings and denying parties an
    opportunity to raise certain contested issues to the Board. The Board's
    rule also grants union organizers unprecedented access to employees'
    personal information.
        These are by no means modest changes and they go far beyond simply
    ``modernizing'' the election process. In truth, the Board's real goal
    is to dramatically tilt the outcome of elections in favor of union
    leaders by ambushing employers and workers without allowing them to
    fully understand their decision. The American people are on the losing
    end of the Board's extreme culture of union favoritism.
        The Board's rule eviscerates the right of employers to speak freely
    to employees during an organizing campaign. Roughly 70 years ago,
    Congress amended the National Labor Relations Act to ensure employers
    have an opportunity to communicate with employees about union
    representation. Congress took this action not only to promote the
    voices of employers, but also to protect employee choice through a
    robust debate of important issues. The Board is overturning, by
    executive fiat, what Congress has expressly permitted by law.
        The Board's rule also severely cripples the right of each worker to
    make an informed decision. Deciding whether or not to join a union is a
    deeply personal choice. The outcome of that choice will affect workers'
    wages, benefits, and other employment concerns for years. Workers
    deserve an opportunity to get the facts and discuss these matters with
    friends, family members, coworkers, and yes, employers too. Under this
    administration, the National Labor Relations Board is determined to
    deny workers this fundamental right.
        Finally, adding insult to injury, the Board is placing the privacy
    and safety of America's workers and their families in jeopardy. There
    is absolutely no reason why union organizers need employees' phone
    numbers, email addresses, work schedules, and home addresses. Union
    coercion and intimidation is real and it is our responsibility to help
    stop it.
        It is for these reasons this resolution is so urgently needed. In
    the past, Congress has tried offering a legislative response to the
    Board's ambush election rule, one that would ensure workers, employers,
    and unions continue to enjoy protections that have been in place for
    decades. I want to thank Chairman Kline for his continued leadership in
    this area. Unfortunately, our Democrat colleagues in the Senate refused
    to stand with us.
        However, I am hopeful with new allies in the Senate and the
    authority vested in Congress through the Congressional Review Act, we
    will send to the president a resolution that reins in this activist
    board and rolls back this destructive regulatory scheme. The president
    will then have to decide whether he stands with Big Labor, or with the
    nation's workers and job creators. I urge the president and every
    member of Congress to choose the latter by supporting H.J. Res. 29.
        With that, I will now recognize the subcommittee's ranking member,
    Representative Polis, for his opening remarks.
                                     ______

        Mr. Polis. Thank you, Mr. Chairman.
        Today we are holding yet another hearing showing the
    backwards priorities of the majority. The Republicans are using
    a very rare legislative tool, called the Congressional Review
    Act, to subvert a common-sense reform of the National Labor
    Relations Board election process.
        But once again, like so many things that occur in this
    chamber, this is a process full of sound and fury, but
    signifying nothing, as Shakespeare would say.
        With your permission, I would like to submit to the record
    a statement of administrative policy?
        [The information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Byrne. Without objection, so ordered.
        Mr. Polis. In part, the statement of administrative policy
    from the President says that his senior advisors would
    recommend that he veto the resolution, meaning once again we
    are here with the process, talking about things that are not
    going to become law, that, like the Keystone XL bill that
    subverted the authority of the President to make the final
    determination with regards to whether that should occur, trying
    to bypass the President, obviously without the President's
    permission. And there will not be a veto-proof majority in
    either chamber to undo this, as we saw with the recent vote in
    the Senate--very, very close indeed.
        So again and again, the majority is using words to attack
    the NLRB, holding more than 15 hearings and markups since the
    Republicans have taken control of Congress.
        The board is charged with protecting workers' fundamental
    right to band together and exercise their voice in the
    workplace. Through the election process, workers can select
    representatives to bargain for better wages and working
    conditions. In fact, it is one of the answers to the growing
    income disparities that we face in our country is the ability
    of workers, as a stakeholder group, to organize and negotiate.
        But unfortunately, under the current rules some
    unscrupulous employers have undermined the rights of workers to
    organize by using frivolous litigation to endlessly delay union
    elections. Last year, for example, more than one in 10
    elections were still unresolved after 100 days. That is what
    these rules address--these outlier cases that linger on and on.
        And there are examples of elections dragging out for more
    than a year. One example is a Mercedes-Benz dealership in
    California. The workers filed a petition for a union and the
    employer tried to stall at every opportunity, requesting
    extensions from the hearing, requesting extensions for filing
    the brief, appealing the decision of the board. Even after the
    election the employer continued to stall.
        So this process at this Mercedes-Benz dealership in
    California took 428 days. With this new rule, the process could
    have been shortened into 141 days--hardly an ambush, and much
    more--much preferable to a process that lasts for more than a
    year to both the employees as well as the employer.
        Now, why is delaying elections so bad? There is a direct
    and causal relationship between the length of time it takes to
    hold an election and illegal employer conduct. In other words,
    bad actors--the minority among the business community, but the
    ones that we are concerned with in this rulemaking process--
    stall the election progress so they have more time to illegally
    interrogate, threaten, manipulate, sometimes even fire
    employees in an attempt to coerce them to voting against the
    union--more than a year, in the case of the Mercedes-Benz
    dealership.
        Brenda Crawford, our witness here today, will share her
    story of exactly her experience. Some employers, like Ms.
    Crawford's even sent anti-union text messages and e-mails.
        Now, another item that these rules address is that unions
    haven't had access to the similar information as employers. It
    is almost like running a competitive election for Congress or
    state legislature, but the voter file can only be accessed by
    the Republicans or only accessed by the Democrats, and the
    other party can't even solicit votes. Clearly, in a competitive
    election both sides need to be treated equally.
        To the extent there is privacy concerns, they need to be
    addressed equally across both the corporation as well as those
    seeking to organize. If information like e-mail addresses
    exist, if one side can access them, the other side needs to be
    able to access them.
        Many great employers, the vast majority, allow their
    employees to engage in fair elections, free from threats of
    unlawful coercion. And to be clear, this rule does nothing to
    affect those elections of the vast majority of good actors out
    there, and many companies and employees for whom this process
    works.
        However, for the bad actors out there this rule is
    absolutely necessary and imperative. We have a responsibility
    to protect workers' rights, provide a level playing field for
    all parties to let employees decide how they want to organize.
        This modest, common-sense reform goes a long way in doing
    that. It will standardize practices that are already common
    through many parts of the country. It will allow workers to
    make their own decision without manipulation, threats,
    intimidation, or indefinite delays.
        Now, opponents of this rule have tried to characterize this
    rule as allowing elections on an extremely tight timeline, but
    the timeline those opponents have put forth is impossible under
    these rules. In every case, the employer is fully aware that
    organizing is occurring long before the petition is filed.
        Additionally, the rule in no way abridges employers' free
    speech rights. Employers can continue to have the ability to
    talk to mandatory captive audience meetings in the workplace,
    e-mails, and messages, with any access to the contact
    information that they have. It simply allows those organizing
    to have access to similar information.
        One noteworthy element of using a Congressional Review Act
    challenge is that if it were to be passed, and even if it were
    signed by the President, which this will not be, it would
    forever prohibit the NLRB from enacting a substantially similar
    rule. So that means that all modernizations that we can agree
    upon, including allowing parties to file election documents
    electronically, as this rule does, would be off the table. It
    is an overly broad mechanism to go after a rule.
        Now, critics of this rule do not want a level playing
    field. They want a process that is open to delay and
    manipulation by bad actors. Rather than letting workers choose
    for themselves, bad actors would prefer to delay or prevent the
    choice from ever being made.
        Now, instead of wasting time on a hearing on a bill that
    will not become law to hobble an agency that is dedicated to
    protecting workers' rights, we should be working together to
    find solutions that help Americans, help workers, help our
    families, help our economy thrive.
        Finally, I would like to submit for the record a statement
    from the United Steelworkers International Union opposing the
    use of this congressional review?
        [The information follows:]

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Byrne. Without objection, so ordered.
        Mr. Polis. Thank you.
        And I look forward to hearing from the witnesses today, and
    I yield back the balance of my time.
        [The statement of Mr. Polis follows:]

    Prepared Statement of Hon. Jared Polis, Ranking Member, Subcommittee on
                    Health, Employment, Labor, and Pensions

        Today we are holding yet another hearing that shows the backwards
    priorities of the Majority. The Republicans are using an exceedingly
    rare legislative tool called the Congressional Review Act to reverse a
    common-sense reform of the National Labor Relations Board's election
    process. Again and again the majority has attacked the work of the NLRB
    holding more than 15 hearings and mark-ups on the Board since they took
    control.
        The Board is charged with protecting workers' fundamental right to
    band together and exercise their voice in the workplace. Through the
    Board's election process, workers can select representatives to bargain
    for better wages and working conditions. But, under the current rules,
    some unscrupulous employers can undermine these rights by using
    frivolous litigation to endlessly delay union elections.
        Last year, for example, more than 1 in 10 election cases were still
    unresolved after 100 days. And there are many examples of elections
    dragging out for more than a year. As an example, at a Mercedes Benz
    dealership in California, the workers filed a petition for a union, and
    the employer stalled at every opportunity--requesting and receiving an
    extension for the hearing, requesting and receiving an extension for
    filing the brief, and appealing the decision to the Board. Even after
    the election, the employer continued to stall; this entire process
    ended up taking 428 days. With the new rule, this process could have
    been shortened to 141 days, which is hardly an ambush and much
    preferable to a process that lasts for more than a year.
        Why is delaying elections so bad, you may ask? There is a direct
    and causal relationship between the length of time it takes to hold an
    election and illegal employer conduct. In other words, bad actors stall
    the election process so they have more time to illegally interrogate,
    threaten, manipulate, and sometimes even fire their employees to coerce
    them into voting against the union. Ms. Brenda Crawford, a witness here
    today, will share her story of exactly this experience, which is sadly
    all too familiar.
        There are also plenty of employers who stall elections in order to
    engage in legal coercion under the guise of ``education.'' They hold
    frequent mandatory, captive-audience meetings in order to offer their
    dire predictions for a unionized workplace. Some employers, like Ms.
    Crawford's, even send anti-union text messages and emails. Unions have
    no similar access to employees. Right now, organizers only have access
    to employees' home addresses, while employers have unfettered access.
        Many great employers allow their employees to engage in fair
    elections, free from threats or unlawful coercion. This rule will do
    little, if anything, to affect those elections. However for those bad
    actors out there, this rule is absolutely necessary.
        We have a responsibility to protect worker's rights, and provide a
    level playing field for all parties involved. This modest, common-sense
    reform goes a long way in doing exactly that. It will standardize
    practices that are already common throughout many parts of the country.
    It seeks to allow workers to make their own decisions without
    manipulation, threats, or intimidation.
        Opponents of the rule have tried to characterize the rule as
    allowing elections on an extremely tight timeline, but the timeline
    these opponents have put forth is virtually impossible under these
    rules. Moreover, in essentially every case, the employer is fully aware
    that organizing is occurring long before the petition is filed. To
    state that employers will be blindsided and have only a few days to
    ``make their case'' is, at the very least, stretching the truth.
        Additionally, this Rule in no way abridges employers' free speech
    rights. Employers will continue to have the ability to subject their
    workers to mandatory captive audience meetings in the workplace and a
    barrage of emails and messages as they have access to their contact
    information.
        One noteworthy element of using a Congressional Review Act
    challenge is that, if it were to pass and be signed by the President,
    it would forever prohibit the NLRB from enacting a substantially
    similar rule. So that means that simple modernizations that we can all
    agree upon--such as allowing parties to file election documents
    electronically, as this rule does--will be off the table.
        Critics of this Rule do not want a level playing field, instead
    preferring a process that is open to delay and manipulation. Rather
    than letting workers choose for themselves, bad actors would prefer to
    delay or prevent the choice from ever being made at all. This Rule
    reduces the opportunity for bad actors to play games with the process.
        Instead of wasting a time on a hearing on legislation intending to
    hobble an agency dedicated to protecting workers' rights, we should be
    working together to find solutions that help Americans, their families,
    and our economy thrive.
        Finally, I would like to submit for the record a statement from the
    United Steel Workers International Union opposing this use of the
    Congressional Review Act and the Statement of Administrative Policy on
    S.J. Res 8.
        Thank you and I look forward to hearing from the witnesses today.
                                     ______

        Mr. Byrne. Thank you, Mr. Polis.
        Pursuant to committee rule 7(c), all subcommittee members
    will be permitted to submit written statements to be included
    in the permanent hearing record. And without objection, the
    hearing record will remain open for 14 days to allow
    statements, questions 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.
        Mr. Roger King is a Senior Labor and Employment Counsel
    with IRI Consultants and is testifying on behalf of the Retail
    Industry Leaders Association of Washington, D.C. Mr. King
    represents management in matters arising under the National
    Labor Relations Act. Prior to moving to the private sector, Mr.
    King served as a professional staff, covering labor issues in
    the United States Senate.
        Mr. Glenn Taubman is a staff attorney with the National
    Right to Work Legal Defense and Education Foundation, of
    Springfield, Virginia. Mr. Taubman has been with the foundation
    since 1982. Prior to joining National Right to Work, he was a
    law clerk for Judge Warren L. Jones, U.S. Court of Appeals for
    the 5th and 11th Circuits.
        I will now recognize Representative Takano to introduce our
    next witness.
        Mr. Takano. Thank you, Mr. Chairman.
        Today I would like to introduce our witness, Brenda
    Crawford. Brenda is a registered nurse who works in labor and
    delivery just outside of my district in Southern California.
    Actually, she lives outside of my district but she actually
    works in my district at Kaiser, a place I visit. I actually
    visited the maternity ward.
        And she has been a registered nurse for 27 years, has been
    employed at Universal Health Systems for the past 21 years.
        Our region suffers from a shortage of primary care
    providers, and it is registered nurses, such as Brenda, who
    help deliver essential care to the people of the Inland Empire.
    I look very much forward to hearing her testimony today and I
    hope my colleagues will listen to the perspective she has to
    offer on the NLRB election process and its impact on our
    nation's workers.
        Welcome, Brenda.
        Mr. Byrne. Thank you, Representative Takano.
        I will now continue with our introductions.
        Mr. Arnold E. Perl is a member with Glankler Brown, of
    Memphis, Tennessee. Mr. Perl has more than 40 years of
    experience in assisting organizations in labor and employment
    law. Prior to entering private practice, Mr. Perl was a
    National Labor Relations Board field attorney in Region 26, a
    board attorney in the NLRB's division of advice, and a board
    attorney in the NLRB division of enforcement litigation.
        We welcome all of our witnesses today, and thank you for
    being here.
        I will now ask our witnesses to stand and to raise your
    right hand.
        [Witnesses sworn.]
        Let the record reflect the witnesses answered in the
    affirmative.
        You may be seated.
        Before I recognize each of you to provide your testimony,
    let me 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.
        Now, for those of you who have been practicing law, you
    know what that means. When the light turns red--it is usually a
    judge, not a congressman--that means times up. I will ask you
    to wrap up your remarks pretty quickly, so please be prepared
    when it gets red to let me do that.
        After everyone has testified, members of this subcommittee
    will each have five minutes to ask questions of the panel.
        I will now recognize Mr. King to give his five-minute
    statement.

       TESTIMONY OF MR. ROGER KING, SENIOR LABOR AND EMPLOYMENT
     COUNSEL, TESTIFYING ON BEHALF OF THE RETAIL INDUSTRY LEADERS
                     ASSOCIATION, WASHINGTON, D.C.

        Mr. King. Thank you, Mr. Chairman, Ranking Member Polis.
    Thank you again for inviting me to testify before this
    Subcommittee.
        Before I start, I would like to send my best wishes to
    Congressman Roe and his wife. I have had the pleasure of
    working with Congressman Roe and I wish him and his spouse the
    best.
        I am testifying here today on behalf of the Retail Industry
    Leaders Association, RILA. RILA is a trade association that is
    made up of the largest and most innovative retailers in the
    country.
        The organization consists of more than 200 retailers,
    product manufacturers, and service suppliers, which together
    account for more than $1.5--and that is trillion--$1.5 trillion
    in annual sales, millions of American jobs, more than 100,000
    stores in your districts, manufacturing facilities, and
    distribution centers domestically and abroad. RILA is pleased
    to be part of this hearing.
        Mr. Chairman and members of the subcommittee, I want to
    commend this committee and the House Leadership and the Senate
    Leadership for moving forward the joint resolution with respect
    to the National Labor Relations Board election rule. There are
    many negative aspects to this rule that are being glossed over,
    and it is being characterized as some type of technical
    adjustment to the National Labor Relations Act. Nothing is
    further from the truth.
        I want to stress eight key points this morning, but
    particularly the first point.
        The board's new rule is fundamentally unfair to employees.
    And you are absolutely right, Mr. Chairman, this is also about
    the employees and employers, and is an unprecedented--I want to
    underline unprecedented--partisan policy initiative by this
    regulatory agency.
        Mr. Chairman and members of this subcommittee, can you
    imagine if we had an election process in this country where one
    party or one individual could spend months if not years
    campaigning, unilaterally decide when to start the election
    process, unilaterally decide who gets to vote, and then require
    a vote within 11 to 14 days? Can you imagine that process?
        I don't know of any other process, from a local school
    election right up to federal elections. Even union officers,
    when they run for office, have a minimum period of candidacy
    and campaigning.
        That is exactly what is happening here. Let's make no bones
    about it. This is just a raw agency political move. Nothing
    more, nothing less.
        Unions have months, if not years, to campaign. They decide
    to file their petition with the NLRB when they reach the peak
    of their momentum in their campaign, and then have that
    petition processed, as you mentioned in your remarks, on a very
    expeditious basis today.
        There is no need whatsoever for this legislation. It is
    fundamentally unfair.
        One additional point I would like to make is that union
    elections have lasting consequences. Once a union is certified
    in a place of employment, essentially that union is there for
    the life of that business. While employees may come and go in
    that bargaining unit, the unit stays there.
        This is unlike an election process that everybody in this
    room is most familiar with, where you have to stand for
    reelection every two years. The union is immune, essentially,
    from that type of analysis. That has to be emphasized here.
        Number two, the new rule is a legal and procedural landmine
    for both employees and employers, and the due process rights
    that are being trampled here are considerable. This rule was
    articulated, if you want to use that word, in a 733-page
    document. Small employers in particular are going to have
    exceedingly difficult time understanding what this process is
    about.
        As I state in my written testimony, which I would like to
    have submitted for the record, Mr. Chairman, and the
    appendices, there too,--thank you--if filing deadlines are
    missed, are not met, the employer waives all of its rights. We
    have virtually no hearing anymore under this rule.
        You can't even file a post-hearing brief. People need to
    read the fine print here. This is procedurally unfair.
        Point four--I am skipping a couple due to the time
    limitations, but point four is particularly, I think, important
    to this committee. The board's new rule is not consistent with
    the legislative history of the National Labor Relations Act--
        Mr. Byrne. Wrap up as quickly as you can.
        Mr. King. Yes. Yes, Mr. Chairman--and I would like to draw
    the committee's attention to page five of my testimony.
        In 1959 the Congress considered this very concept of
    election first, hearing later. That concept passed the Senate
    but ultimately was rejected by the Congress.
        Even Senator John F. Kennedy, who was a proponent of the
    ``election first, hearing later'' concept, said there must be a
    minimum of 30 days between the filing of the petition and the
    election. This committee needs to look at that legislative
    history and, indeed, look even at their Democrat colleagues at
    that point in time.
        Thank you very much.
        [The testimony of Mr. King follows:]

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        Mr. Byrne. Thank you, Mr. King.
        Mr. Taubman?

      TESTIMONY OF MR. GLENN M. TAUBMAN, STAFF ATTORNEY, NATIONAL
      RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC.,
                         SPRINGFIELD, VIRGINIA

        Mr. Taubman. Thank you, Mr. Chairman, and distinguished
    committee members.
        Mr. Byrne. Turn on your microphone.
        Mr. Taubman. Thank you.
        Thank you for the opportunity to appear today. I have been
    practicing labor and constitutional law for 32 years on behalf
    of individual employees only at the National Right to Work
    Legal Foundation.
        I have a unique perspective on the NLRB's ambush election
    rule, which comes from decades of representing thousands of
    employees subject to the National Labor Relations Act. I have
    represented employees in countless elections arising under the
    NLRA, both certification elections, decertification elections,
    and deauthorization elections.
        I start today with the premise that only employees have
    rights under the National Labor Relations Act. The Act is not
    about unions or employers; it is about employees making free
    and informed choices.
        Given the centrality of employee free choice, I would like
    to address two major issues today.
        The first is the way the NLRB's new ambush election rules
    skew the process to wholly favor unionization while invading
    employees' privacy and depriving them of their Section 7 rights
    to choose or reject unionization in an informed and thoughtful
    manner.
        The second issue concerns the way in which the ambush
    election rules continue the odious practice of blocking
    decertification elections to entrench incumbent unions, while
    simultaneously speeding certification elections.
        The NLRB's new ambush election rules contain aggressive
    procedures to help unions win elections and get into power,
    while hypocritically retaining blocking charges and election
    bars that make it almost impossible for employees to exercise
    their rights to rid their workplace of an unwanted union.
        First, the ambush election rules mandate a serious invasion
    of employees' privacy. They force employers to disclose to
    unions employees' personal, private home or cell phone numbers,
    personal e-mail addresses, and work schedules, including for
    employees who may well not be in this bargaining unit and who
    may never be in a bargaining unit, including supervisors. The
    union gets all this information without even knowing whether
    these employees are in or out of the unit.
        Despite employees' pleas to the board, the board cavalierly
    brushed aside all privacy concerns, creating illusory or
    toothless remedies for union misuse of employees' personal
    information. While Congress has mandated ``do-not-call lists''
    and other consumer protections against spam and Internet abuse,
    the board has refused to apply those principles here and
    refuses to allow any employee to opt out of the forced
    disclosure of his or her personal information.
        The board places no real restrictions or safeguards on how
    unions can use or disseminate this information. The only way to
    protect employee privacy is for the NLRB to not compel the
    disclosure of employee's private information.
        Indeed, the American public would be appalled if they knew
    that the U.S. Government was forcing disclosure of their
    personal information to groups like the NRA, or ACORN, or the
    Sierra Club, but the NLRB has issued an edict doing just that
    for the benefit of a few politically active special interest
    groups called labor unions.
        Secondly, I want to discuss the fact that this ambush
    election rule cuts employees out of the process. Employees have
    no right to intervene in any election that is called, no input
    into the scheduling of the election, no input into the conduct
    of the election, no input into the scope of the bargaining
    unit, and no input into their own inclusion or exclusion from
    the unit. They cannot file objections or challenges to a
    tainted election, and their voices are silenced by these rules.
        For example, many employees may be unaware that a union
    organizing campaign is even underway in their shop until they
    are notified of an impending election just days away. But if
    these employees, even a majority of them, seek a delay in the
    election so they can learn more about both sides and the
    effects of the unionization, the NLRB will deny their request.
        If they ask for clarity as to who will be included in the
    unit, the NLRB will deny their request. If they want time to
    research the union that has targeted their bargaining unit, the
    NLRB will deny the request.
        All of these flaws were pointed out to the NLRB in comments
    that we and others filed, yet the concerns were all ignored and
    brushed aside. This is no way to run a democracy. It is akin to
    a mayoral election in which it is unknown, either before or
    after the election, whether up to 20 percent of the potential
    voters are inside or outside of city limits.
        In conclusion, we urge the committee to vote to override
    these NLRB rules.
        [The testimony of Mr. Taubman follows:]

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        Mr. Byrne. Thank you, Mr. Taubman.
        Ms. Crawford, five minutes.

     TESTIMONY OF MS. BRENDA CRAWFORD, REGISTERED NURSE, MURRIETA,
                               CALIFORNIA

        Ms. Crawford. Good morning, and thank you, Chairman Byrne
    and Ranking Member Polis, for the opportunity to appear at this
    hearing.
        My name is Brenda Crawford. I have been a registered nurse
    for 27 years and have worked at Universal Health Services in
    Murrieta, California for the past 21 years.
        I am here today to share mine and some of my colleagues'
    views in support of the National Labor Relations Board's final
    rule on representation procedures. I am not representing UHS in
    any way.
        In 2013, I participated in an organizing drive to form a
    union with my fellow registered nurses. A majority of the RNs
    signed cards supporting the union, and eventually the union
    filed an election petition.
        All we wanted was to have a fair opportunity to vote on
    whether or not to form a union. However, it became clear to us
    that the NLRB's election procedures were rife with
    opportunities for the employer to create delay and uncertainty.
        The company had recently insisted, in another nearly
    identical bargaining unit, on a pre-election hearing to argue
    that charge nurses were supervisors. We knew the company would
    raise the same argument in our case.
        Charge nurses, who help to facilitate the floor operations,
    made up only a small percentage of the bargaining unit we
    sought. We knew that if the hearing was held to determine
    whether or not the charge nurses were supervisors, the
    resulting litigation would delay our chance to vote for weeks.
        The organizing committee had to make a difficult decision.
    We could either go ahead with the hearing and have the election
    significantly delayed, or we could agree to the company's
    position. We ultimately conceded the charge nurses so as not to
    hold up the election any longer than necessary.
        And that was not the only concession we had to make. The
    union had to agree to the election date the company wanted,
    again, to avoid the need for a hearing.
        The NLRB's final rule will allow the parties to approach
    elections on a more even footing. The new rules give regional
    directors the discretion to defer questions of individual
    eligibility and inclusion for small groups of workers until
    after the election.
        In our case, that means the charge nurses could have voted
    challenged ballots and their status would have been resolved
    only if it would have affected the outcome of the election.
    This removes the company's leverage to force a pre-election
    hearing to unnecessarily litigate these types of small issues
    and would offer greater protection for the rights of the
    workers.
        The NLRB's final rule would also improve the union's
    ability to communicate with workers in a proposed bargaining
    unit. From before a petition for election was filed through the
    date of the election, the company ran a relentless anti-union
    campaign. The company communicated anti-union messages to us
    daily on every shift.
        My fellow nurses and I were taken off patient care
    constantly to attend anti-union meetings. The company would
    send anti-union e-mails to the nurses, and even sent an anti-
    union text message to our personal phones when we were off
    work.
        The company's anti-union campaign created a great deal of
    stress among the RNs, whose main concern was patient care. This
    stress was one of the main reasons we decided to concede the
    charge nurses, so that we could get to an election as soon as
    possible.
        Since the only contact information the company was required
    was home addresses, the union could not communicate with the
    nurses in the same ways the company did. Additionally, the
    union didn't know shift times or other job information for the
    nurses who work 12-hour shifts.
        Without that information, the union could not know when
    nurses would be home or how to avoid bothering them when they
    had just gotten off shift. For many nurses, 10:00 in the
    morning is the equivalent to 10:00 at night. If we had more
    information about the nurses than just their home addresses, we
    could have contacted them to set up a time to meet with them.
        The NLRB's rule--final rule expands the information the
    union and organizing committee would receive regarding the
    workers in the unit. If we had this information, we would have
    had a better opportunity to communicate with our fellow nurses
    and use the same means of communication that the company was
    using.
        The union lost the election. The company was able to
    manipulate the election procedure to delay the election date
    and communicated with the workers in ways the union could not.
    I am sure that the election results did not reflect the RNs'
    desire to join together to collectively bargain with our
    employer.
        In closing, I ask that you do not support the Congressional
    Review Act resolution for disapproval of the NLRB's final rule
    on its representation procedures. The NLRB's changes to its
    election procedures are modest changes, but necessary to ensure
    its elections are free and fair for all workers.
        [The testimony of Ms. Crawford follows:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Byrne. Thank you, Ms. Crawford.
        Mr. Perl?

     TESTIMONY OF MR. ARNOLD E. PERL, MEMBER, GLANKLER BROWN, LLC,
                           MEMPHIS, TENNESSEE

        Mr. Perl. Well, thank you, Mr. Chairman and Ranking Member
    Polis.
        In private practice I have been very involved with the
    National Labor Relations Act on behalf of many employers in
    various industries. I served on the most recent NLRB advisory
    panel during the Clinton Administration, at the invitation of
    Chairman William Gould, and during that same period made a
    presentation to the Dunlop Commission on the Future of Worker-
    Management Relations.
        I have served for over 40 years on the ABA's Practice and
    Procedure Committee, and most recently served as the leadoff
    witness before the NLRB's public meeting on rulemaking for this
    rulemaking procedure on July 18, 2011, where I appeared on
    behalf of the Tennessee Chamber of Commerce and Industry, and I
    appeared back before the board in 2014 during round two of the
    rulemaking procedures.
        The divided board's issuance of the final rule, making
    sweeping changes--these aren't minor changes; these aren't
    procedural changes only. This blows up the whole system of
    representation elections, and it disregards the overriding goal
    of American labor law for more than 75 years, which has been to
    resolve representation questions not only quickly, but also
    fairly, and former Chairman Wilma Liebman stressed that in
    2011.
        What we have here is to steamroll elections in the name of
    streamlining the process. And by doing so, the board majority
    prevents and impedes reasoned and informed choice by employees.
        The board's reformulation instead reduces the election
    process, as aptly stated by members Miscimarra and Johnson, to
    vote now and understand later.
        Now, freedom of agencies exist to fashion their own
    procedural rules, but the Supreme Court's emphasize that such
    rules must be consistent with statutory requirements. And as
    board member Hayes stressed in dissenting from the original
    issuance of the proposed amendments in 2011, by shortening the
    time from petition to election date, the board broadly limits
    all employers' speech and thereby impermissible trenches upon
    protections that Congress specifically affirmed for the debate
    of labor issues when it enacted Section 8(c) in 1947.
        Concerns about unreasonable delay in a particular case--the
    so-called outlier cases, the one-off cases--cannot justify
    blowing up the whole system to conduct elections at lightning
    speed in all instances. As board member Hayes stated in a
    strongly worded dissent, ``the principle purpose for this
    radical manipulation of our election process is to minimize, or
    rather, to effectively eviscerate an employer's legitimate
    opportunity to express its views about collective bargaining.''
        The self-professed standard set by Chairman Pearce, that
    the final rule will result in improvements for all parties and
    represents a model of fairness and efficiency for all, ignores
    the fact that the ambush election rule issued by the board
    majority is viewed highly unfavorably by employers. Just read
    the voluminous testimony given by employers at the two
    rulemaking procedures before the National Labor Relations
    Board.
        Regrettably, the employer testimony that elevating
    lightning speed over fundamental fairness in representation
    elections fell on deaf ears before the NLRB. The board majority
    stresses that the rule enables the board to more effectively
    administer the National Labor Relations Act by eliminating
    unnecessary litigation and delay. Yet, the board rule actually
    will cause increased delays and increased litigation in
    ultimately resolving questions of representation.
        And furthermore, the median time today for all elections is
    38 days, and more than 94 percent of all elections occur within
    56 days of the petition's filing. And these statistics are well
    within the board's own goals for timely elections.
        So the bottom line is that the board's longstanding
    representation process is working today. And unions' win rate
    today isn't just 40 percent or 50 percent; the union win rate
    today in 2014 was 63 percent. So the system works for unions,
    as well.
        As stated by the two dissenting board members, the new rule
    is a solution in search of a problem. And I think the committee
    is well-advised to continue on with this process to overcome an
    ambush election rule that is inherently unfair to employers,
    destructive of free choice of the employees, and really
    represents a travesty to the National Labor Relation Board
    procedures in representation elections.
        I have submitted a written statement prior, and I would
    like it to be admitted into the record.
        Mr. Byrne. Without objection, it will be, Mr. Perl. Thank
    you.
        Mr. Perl. Thank you.
        [The testimony of Mr. Perl follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Byrne. We will now proceed to members of the
    Subcommittee's questions.
        I will recognize myself to begin for five minutes.
        I completely agree with my colleague with regard to his
    characterization of employers in America. The vast majority of
    employers in America are good actors, as he said, and I
    completely agree with Mr. Polis about that. But I am concerned
    that this rule, which I gather is designed to get at bad
    actors, actually will have a substantial negative effect on
    good actors.
        So, Mr. Perl, let me ask you: Will there be negative
    effects to the good actors out there from this rule?
        Mr. Perl. Well, it absolutely does. And the notion that
    this rule affects only the bad actors and the vast majority of
    good actors are unaffected by the rule, that is just not so.
        This rule applies equally to all employers--good actors and
    bad actors. The reason it is applicable to everybody is because
    these rules set forth a procedure that doesn't exist today that
    provides a straightjacket for employers once they get notice of
    a representation filing.
        You know, in many cases, especially for small business,
    many employers aren't even aware that an organizing campaign
    exists. So now, under the new rule, they get a fax that a
    petition has been filed, and that fax now has set a timetable--
    an automatic countdown, if you will--for 11 days at least,
    that, ``Here is what is going to happen in the next 11 days.''
        And it starts with the employer being required to set forth
    what its position is on the unit. And the unit description here
    is provided by the union.
        As Roger King said, the union gets to choose its time when
    it files the petition and what the unit is going to be in this
    election. And the employer now has to state what its position
    is and file that at least one day before a hearing, which is
    held in no later than eight days.
        And an election process here is going to go from a median
    time of 38 days to as few as 10, 11 days--and most, probably 25
    days. So who are the losers in this? The losers are not only
    the employers that are going to be denied their ability to
    engage in free speech, but the employees, who have a basic
    right to make a clear and informed choice.
        Now, I know Ms. Crawford--and I have been with Ms. Crawford
    before. She testified at the National Labor Relation Board
    hearings. And when she talks about the board providing
    additional ways to get information--the cell phone numbers, the
    private e-mail addresses of employees, and so forth--the
    original rule came from the Excelsior case, and it provided for
    names and addresses.
        But in Excelsior, which the board has relied on, the board
    ignores the rationale of Excelsior Underwear, 156 NLRB at 1242.
    The board, in Excelsior, stressed that the opportunity for both
    sides to reach all the employees is basic to a fair and
    informed election. And now you are denying the employer the
    opportunity to reach the employees for a reasonable period of
    time.
        One is assuming here that all employees work all the same
    shifts every day of the week. It ignores the fact, especially
    with larger employers, that you have rotating shifts. You may
    not see some employees for six days because they are on a
    rotating shift schedule--
        Mr. Byrne. Let me interrupt you just a second, because I
    want to drill in on one point you made. I would like to ask Mr.
    Taubman a question about this.
        The information that this rule would require be provided on
    personal information on employees--is there any protection that
    the NLRB has afforded to the employees for what happens to that
    information once it is disclosed?
        Mr. Taubman. What the rule says about protections is
    illusory and nonexistent. There are no protections for the use
    of this information that the NLRB is going to provide
    whatsoever, and there is no right to opt out.
        I mean, as I said, Congress has all kinds of protections
    for do-not-call lists and whatever. People should be able to
    protect their own information.
        Just because I may give information to my employer doesn't
    mean that I want the government to mandate that now my
    information goes to a whole host of political parties and
    actors against my will, and I should be able to control the use
    and the dissemination of my information, and there is zero
    protection for that in this rule.
        Mr. Byrne. Thank you, Mr. Taubman.
        My time is up, and I recognize Mr. Polis for your five
    minutes?
        Mr. Polis. Thank you, Mr. Chairman.
        Mr. Taubman, you kind of compared this to a, you know,
    mayoral or city council election. But at the same time, you are
    saying that it is somehow not an infringement on privacy what
    Ms. Crawford was subject to. She received texts, phone calls on
    their personal cell phone numbers from anti-union organizers
    that the company had given it to.
        All we are talking about is not private information, not
    information that an employee has kept private; it is only what
    the employee has already shared with the company. How can you
    even have a competitive election process if you only allow one
    side to communicate to the voters?
        Mr. Taubman. I think first of all, Congressman, unions have
    ample opportunities to communicate with their voters. They have
    obviously gotten enough signatures of people in the plant. They
    have in-plant organizers, et cetera. That is the first thing.
        The second thing is I would say an employer has a
    legitimate interest in having contact information for its
    employees. Maybe somebody has to come in--
        Mr. Polis. Well, reclaiming my time, again, it is up to the
    employee what they provide to their employer. If it is a
    personal e-mail address, many--it is entirely up to an employee
    whether they provide that to their employer. Many times there
    is an official e-mail address at the employer that would be the
    one used for official communications.
        The choice of privacy that the employee has is whether to
    give their personal information to the company, whether to
    trust the company, if you will. The employees are legitimate
    stakeholders at the company, and when there is a competitive
    election process you have to allow both sides to campaign.
        Ms. Crawford was subject to repeated texts and e-mails from
    one side. They were unable to even get the work schedules to
    find out when people were at home.
        Under existing rules, as you know, they were able to get
    the addresses of the employees, but they weren't able to find
    out when those employees were at home, therefore making their
    at-home visits twice as ineffective as the employer's home
    visits, given that the employer had those work schedules and
    was able to, in effect, spend half as much doing home visits
    because they weren't wasting them when the employee wasn't
    home.
        To have a fair election for mayor, for city council, you
    have to allow both sides to communicate equally. How can there
    possibly be an election for mayor when one side is not allowed
    to communicate via text and e-mail and the other side is?
        Mr. Taubman. Well, again, as I said, I think there are
    ample opportunities to communicate. The union had--
        Mr. Polis. Reclaiming my time, ample opportunities like
    mandatory employee meetings that employees have to attend?
        Mr. Taubman. If the union communicates with these people
    and says, ``Please give us your e-mail address,'' then the
    people are free to give up their e-mail address. If my employer
    asks me for my contact information so it can contact--
        Mr. Polis. Reclaiming my time--do you think that the--when
    the employee--do you think that when the employees--if they
    chose to give their personal e-mail address or cell phone to
    the company, do you think they had in mind that the company
    might use it to lobby them against forming a union?
        Mr. Taubman. Well, I would hope that my company wouldn't
    have in mind that it was going to give my information to the
    NRA or the Sierra Club or ACORN--
        Mr. Polis. Reclaiming my time, I don't know what the NRA
    and the Sierra Club have to do with any of this.
        Ms. Crawford, could you characterize what kind of texts you
    got from the company with regard to the union formation
    activity?
        Ms. Crawford. Well, the company at the time was only using
    our cell phones for texting our schedules, so when our
    schedules would be ready or it was time to put in for your
    schedule they would text us. At one time they did send a text
    over that text messaging system, which was only used for the
    staffing purposes. They did send that text--an anti-union, vote
    no, and--
        Mr. Polis. And I am not asking you to quote it verbatim,
    but approximately what did that say--that text?
        Ms. Crawford. What did it say?
        Mr. Polis. Approximately. Did it say vote no on something,
    or was it a message about why, or--
        Ms. Crawford. You know what, I don't--
        Mr. Polis. Yes. So basically the company lured employees
    into giving them their personal information by saying, ``We
    will make your scheduling more convenient,'' and then they used
    that personal information that employees had trusted them with
    to lobby them about how they voted in an election without
    providing that same information to the employees who were
    trying to organize?
        Ms. Crawford. Correct.
        Mr. Polis. And finally, Mr. Perl, you referred to outliers
    that this rule is assigned to address. And certainly, as you
    mentioned, many of the issues are resolved within the mean
    period--think you said 36 to 56 days, or something along those
    lines.
        Fully one in 10 efforts are unresolved after 100 days. At
    what stage does it cease to be an outlier and begin to be a
    problem for an expeditious and fair election?
        Mr. Perl. Well, I think the case that Ms. Crawford talked
    about with the case that goes on for hundreds of days--that is
    clearly an outlier case. Again, the median time for all
    elections is 38 days.
        Mr. Polis. And to end my remarks, I don't think that the--
    you know, the median time is not an issue, it is the one in 10
    that are over 100 days, including the Mercedes-Benz election of
    428 days.
        I yield back the balance of my time.
        Mr. Byrne. Thank you, Mr. Polis.
        And I should have reminded the witnesses, when we ask your
    questions, it is hard to remember, please punch the button in
    your microphone. I am sorry. It is my fault for not telling you
    that.
        Okay, we will now call on Mr. Walberg for five minutes.
        Mr. Walberg. Thank you, Mr. Chairman. And I appreciate
    having this hearing today. It is only right.
        If we only dealt with issues that were going to pass and be
    signed by the President, nothing would have happened when I
    served in the minority on this same committee, with issues that
    were brought up that the President at that time would not have
    signed. This is our process and we ought to go through it
    deliberately, especially when we talk about common-sense
    reforms of the NLRB.
        That is an oxymoron, in my point of view. To associate
    common sense with what this NLRB is doing, it just doesn't cut
    it.
        Mr. King, under current procedures, once an election is
    ordered employers are required to provide the union with a list
    of the names and addresses of the employees who will be voting.
    The new final rule expands the information required under the
    so-called Excelsior lists to include available personal
    telephone numbers and available personal e-mail addresses, to
    be specific.
        In your view, are there any issues that can arise from
    expanded access unions will have to employee personal
    information?
        Mr. King. Yes, Congressman Walberg.
        And before I answer that specific question, the questioning
    about the privacy issue--it was proposed by RILA and other
    organizations to the board to have an opt-in or opt-out
    procedure, where employees could choose whether they wanted
    this information to be furnished. That was wholly disregarded.
    This board paid no attention to privacy issues whatsoever.
        To answer your specific question, there is no protection
    whatsoever. A number of organizations proposed there be
    sanctions, if we have to go down this route, for misuse of this
    personal information. Totally disregarded.
        This board has turned a deaf ear on any privacy issue.
        Mr. Walberg. To the employees?
        Mr. King. Absolutely.
        Mr. Walberg. I mean, we are talking about that. It is not
    an attack on the unions.
        Mr. King. Right. It has--
        Mr. Walberg. They will do what they want to try to gain
    support that they are losing right now--
        Mr. King. Right.
        Mr. Walberg.--including in my home state, with the Employee
    Free Choice Act that has been implemented and the support that
    has been there from employees who want the best opportunity,
    who aren't asking to be cut out of any decision, but they want
    to be protected.
        Go on.
        Mr. King. You are absolutely correct. The employee
    interests here have been trampled all together. There is
    absolutely no protection for their information--private
    information that they may or may not provide to their employer.
        Further, I would like to add to this discussion. My
    experience in private practice over 45 years is that unions
    have ample access to employee information--in fact, in many
    cases have more ample private information available to them
    than the employer. So this suggestion that somehow there is an
    advantage to the employer just doesn't meet with the facts that
    are out there.
        Mr. Walberg. Mr. Perl, in seeking to expedite the election
    process while shortchanging the pre-election dispute process,
    do you agree that the new rule will increase the likelihood of
    processing errors, such as costly misclassifications of
    employees?
        Mr. Perl. I believe the new rule impedes really an
    opportunity here for the resolution of the issues with a
    stipulation being arrived at voluntarily among the parties,
    with the approval of the regional office, to avoid any kind of
    lingering disputed issues after the election.
        The board rule puts all the disputed issues, basically--
    kicks the can down the road--and decides it after the election.
    If the union wins, then we will have to deal with these issues.
        But the new rule does not allow a reasoned opportunity for
    an employer to discuss with the regional office how to resolve
    the issues raised by a petition. And there are some significant
    issues.
        The issue that Ms. Crawford pointed out about the
    supervisory status of charge nurses--I mean, that is one of the
    critical issues of voter eligibility that will not get resolved
    in a pre-election hearing under the new rule. It is a critical
    issue for resolution. It is not some minor issue.
        The board should have learned the lesson--and we cited it
    in our written testimony, your Honor--of ITT Lighting Fixtures.
    It was a 1970s case that went up to the 2nd Circuit on two
    occasions, and five years later it ended up on a petition for
    certiorari by the union.
        The union won an election, but the NLRB regional director,
    who did hold a hearing on the status of some 31 group leaders,
    whether they were supervisors or not--he chose not to resolve
    it. Let it be decided by challenged ballot.
        They were very involved on behalf of the union, so the
    employer's hands were tied. We couldn't--
        Mr. Walberg. Mr. Perl, wrap up as quickly as you can.
        Mr. Perl. And that case illustrates the dangers of the new
    rule in terms of allowing parties to get it resolved on the
    front end.
        Mr. Walberg. Thank you, Mr. Chairman.
        Mr. Byrne. Thank you.
        The chair now recognizes the ranking member, Mr. Scott, for
    five minutes.
        Mr. Scott. Thank you, Mr. Chairman.
        Mr. Chairman, workers deserve a fair process that allows
    them to decide whether or not to form a union. The current
    process has been long open to manipulation, delay, and drawn
    out pre-election maneuverings.
        Delays cause unnecessary conflict and disruption. These
    disruptions damage labor relations and harm productivity. By
    exercising their rights to organize and collectively bargain,
    American workers have helped build a stronger middle class, the
    backbone of the U.S. economy.
        And the current process to hold an election on whether to
    form a union is badly broken and it allows bad actors to use
    litigation to stall elections for months--even more than a
    year--after the workers petition to hold an election. Election
    delays provide opportunities for unscrupulous employers to
    engage in threats, coercion, and intimidation.
        The delay can be exploited to violate workers' rights,
    including firing pro-union workers or threatening to close a
    plant if workers vote a certain way. In fact, research
    indicates that the more successful an employer is in delaying a
    hearing, the more likely that there will be unlawful conduct.
        Let me ask anybody who wants to answer what is the sanction
    right now for unfair labor practice, such as firing an
    employee?
        Mr. Perl. Well, the sanctions are considerable. It is an
    unfair labor practice.
        Mr. Scott. Your microphone.
        Mr. Perl. Excuse me. Thank you.
        The final rule is passed under Section 7 of the National
    Labor Relations Act, which governs representation elections.
    The outlier cases, where there has been discussion about all of
    the things that have taken place by a bad actor, an employer
    that you referenced committing unfair labor practice--that is
    under Section 8 of the National Labor Relations Act.
        There haven't been any changes that the board focused on in
    Section 8. So they took the problems that could arise under
    Section 8 and made sweeping changes, blowing up the rules under
    Section 7.
        Mr. Scott. What is the sanction if you--
        Mr. Perl. So the sanctions could be reinstatement with back
    pay. Also, in the cases of significant unfair labor practices,
    the NLRB has gone into federal district court seeking
    injunctions under Section 10(j) of the National Labor Relations
    Act for immediate reinstatement.
        So there are significant remedies available for serious
    unfair labor practices.
        Mr. Scott. The sanction, as you mentioned, is reinstatement
    with back pay minus whatever income they made during the long
    delay. Is that right?
        Mr. Perl. That is. But the board increasingly has sought
    immediate injunctive relief to reinstate employees with almost
    no interruption in employment. And where the unfair labor
    practices have a reasonable chance of--for the board
    prevailing, the courts have granted these injunctions and
    reinstated employees shortly after they were terminated.
        Mr. Scott. So there is no real penalty.
        What is the change in the rule, in substantive law as
    opposed to procedural law, that would just speed up the
    election and avoid the delays?
        Mr. Perl. Well, what has happened is that in order to try
    to reach out to the kind of situations that you were alluding
    to, the board blows up the entire representation process, where
    employers have an opportunity to engage in free speech and
    employees have a right to engage in informed free choice.
        And so we are dealing with changing the procedures in
    Section 7 to address certain issues that arise under Section 8
    of the National Labor Relations Act, and that is a basic
    problem here.
        The change--rule changes are not minor. They are not
    modest. They are blowing up the whole representation procedures
    to deal with certain outlier cases, and that is what is causing
    the major problem to which employers seriously objected during
    the NLRB procedure.
        Mr. Scott.--I haven't heard the specific change in
    substantive law.
        Mr. King. Mr. Scott, if I may speak to that--Mr. Chairman,
    do I have a moment?
        Mr. Byrne. Certainly.
        Mr. King. They are many-fold. First of all, the hearing
    itself will not occur until after the election. In 1959, this
    Congress--
        Mr. Scott. Well, there are a lot of--but there are a lot of
    hearings that you are talking about minor issues that do not
    affect the election. Why can't you go along with the election,
    form the union, and then decide these little frivolous,
    extraneous issues after the election? You are holding up the
    entire election for these little issues that can be done
    sequentially, one right after the other, and you never get an
    election.
        Mr. King. Mr. Scott, I know that sounds appealing but it is
    in contradiction--
        Mr. Byrne. Mr. King, wrap up very quickly.
        Mr. King. Yes. It is in contradiction to the National Labor
    Relations Act provision that requires a hearing to be held at
    all cases. In 1959, the Congress looked at that issue and
    specifically rejected election first, hearing after. It is not
    the law.
        Mr. Byrne. Thank you, Mr. Scott.
        Chair now recognizes the gentleman from Kentucky, Mr.
    Guthrie, for five minutes.
        Mr. Guthrie. Thank you, Mr. Chairman.
        I am not an attorney. I have had one law school class and
    it is labor law. I actually thought I was signing up for
    employment law, but it was labor law when I showed up.
        I was in a business program. So I know a little bit about
    this. So just the balance of power between management and
    unions.
        So I guess, Mr. Perl, you are the right guy to ask this
    question: What if the management is egregious, if they conduct
    in a--during the campaign or leading up to the campaign, they
    deleterious--they delay, they are egregious, they create an
    environment where a court could say, ``Well, there is not going
    to be a fair election?'' What is the remedy for the union in
    that case? What could be the remedy?
        The Gissel bargaining order, right? What is that?
        The court can order the union representation without a
    vote, right? Isn't that correct, if management conducts
    themselves in a way that is--
        Mr. Perl. Yes. The Supreme Court ordered that in the famous
    case of Gissel decades ago. Where there are serious unfair
    labor practices, the board has the ability to order the
    imposition of a union on an employer after the employer has
    either won an election or without an election.
        So there are significant remedies available for those
    outlier cases where an employer has committed serious unfair
    labor practices, and that is under Section 8 of the National
    Labor Relations Act. The rule blows up the process under
    Section 7 to address certain outlier cases, but the impact
    affects every single employer and every single representation
    petition.
        Mr. Guthrie. Right. So there is a process for people to get
    fair representation if the board rules the employer to be
    unfair.
        The other thing about communications, and that is one that
    I think is probably the most significant part of all of this.
    There are a lot of issues, but the communications.
        And it seems to be implied by people today that if I give
    my information to someone, then all of a sudden that becomes
    available to the third party. And I think I have every
    expectation that if you are going to work for someone and be an
    employer you have to communicate, but I don't think that--and I
    think it is a bad precedent to say--``Well, just because I have
    given that information to this employer then third parties have
    the right to that information.'' That information should be
    private.
        My one experience in law school--that law class, I would
    say--is that if you go through all the cases, there is a
    tension between access to workers, access to the job site, free
    speech for the employers, property rights for the employers,
    and how you kind of make all this work. And I came to the
    conclusion that if management practices within a business is so
    egregious that a union drive is organic--that is, employees
    working for that business--they have access to each other.
        They sit in the break room together. They can share
    information. You can walk around with a clipboard and say, ``I
    need your e-mail because the way management is treating us, we
    are going to go out and work for an organization--we are going
    to find an organization to represent us.''
        That is all readily available because employees are on the
    job site together. And there is--usually when there is a union
    drive there are a few, handful, or several employees--and they
    are protected by the law. Once somebody starts an organization
    drive they can't be fired. If they are, you have the remedies
    that you went through.
        So access to workers in a union drive, if it is the workers
    driving the drive, is readily available on site, at work,
    everywhere they meet.
        Mr. Perl. You know, it is hard to justify blowing up the
    whole representation process on the claim that unions are being
    deprived of essential information. That doesn't explain the
    fact that unions are winning 63 percent of all elections.
        Mr. Guthrie. Well, my point is if the unions are--if the
    drive is being driven by the workers, they have access to the
    information.
        Mr. Perl. They absolutely have--
        Mr. Guthrie. If there is an outside party trying to
    convince a set of workers that management is not treating them
    well then we can do it better.
        I think there should be a high standard for that to happen,
    because it does change the dynamic of the workplace. And there
    are some places that absolutely need third party
    representation. You could point to places where management does
    earn the situation of a third party representation, or the
    workers deserve to have that.
        So the whole case of not having access to workers--if the
    workers want to unionize, they absolutely have access to each
    other.
        Mr. King. Mr. Guthrie, I may, just on your privacy point--
    every time that you or I or anyone in this room furnishes
    information to our bank, to our credit card company, there is a
    privacy statement that flows back to us. We have an opportunity
    to opt in, opt out, or restrict the use of that information.
        Nowhere is that contained in this rule. That approach was
    specifically rejected by the board.
        Mr. Guthrie. Well, the implication, as some people have
    said, basically is that once you submit your information then
    you lose that expectation, and I think that is not any--you
    said banks. We give our information quite a bit.
        When we had the hearing on--another hearing on this it was
    basically--somebody asked, ``How did you know to come here
    today?'' My e-mail address--by e-mail.
        But the answer to that was, ``You submitted your e-mail for
    us to contact you.'' And so I think that privacy is very
    important, and workers have the ability to organize in a way if
    they feel like that it is an internal--and organic to the
    business and not some outside party coming in--and should have
    that right.
        Mr. Byrne. Thank you.
        The chair now recognizes the gentleman from California, Mr.
    Takano, for five minutes.
        Mr. Takano. Thank you, Mr. Chairman.
        Earlier the Excelsior case was mentioned, which set forth
    the longstanding precedent on providing unions with contact
    information. The case was clearly about creating a level
    playing field for unions and workers who are trying to exercise
    their right to free association.
        Let me read you a little bit from the Excelsior case and--I
    can't seem to find it on here. You can find the--I want to get
    the Excelsior case excerpt--get that for me, please. The phone
    just switched off on me.
        Anyway, well, communication has changed a great deal since
    then and we have the Internet and the e-mail. Clearly
    communication--well, here is the section.
        It says any--``as one thoughtful commenter has said, since
    the opportunity for both sides to reach all the employees is
    basic to a fair and informed election, the reasons for
    requiring disclosure seem just as strong as those leading to
    similar requirements under other provisions of the law.''
        Well, communications has changed quite a great deal since
    then and we have the Internet and e-mail. Clearly communication
    has not been fair. Ms. Crawford can attest to that.
        Ms. Crawford, can you tell us a little more about how your
    employer contacted you?
        Ms. Crawford. Yes. The employer had contact with us every
    day, every shift. They contacted us, of course, when we were a
    captive audience--when we were at work.
        We were forced to--or made to go to meetings, being taken
    away from our patient care to go to attend informational
    meetings that were one-sided information. We also, of course,
    had our work e-mails, where we received anti-union messages and
    information.
        And then, like I said, our cell phones. We were texted, and
    actually attached to that text is our personal e-mail, so we
    got the same e-mail. But they had access to us.
        Mr. Takano. So, Ms. Crawford, the union organizers did not
    have the same ability to communicate with employees, did they?
        Ms. Crawford. No. Not at all. The only information we had
    was address and where they worked. We didn't know what shift
    they worked; we didn't know any way to contact them except mail
    or going to their home.
        Mr. Takano. So this, I mean, that doesn't seem like a fair
    election to me. The employer was able to contact you, they knew
    your shifts, they were able to contact you at the right times,
    and they were able to send you continuous--there was no limit
    on the messaging they were able to provide to you--the anti-
    union messaging.
        Ms. Crawford. Right. They had constant contact with us.
        Mr. Takano. You know, the majority has characterized this
    new rule, which would allow union organizers to have the same
    sort of access and the ability to communicate with employees,
    as the ambush rule. I would think that is a very specious way
    to characterize this new rule. I mean, the ambush rule? Really?
        It is just a matter--I would call it the fairness rule.
    They are trying to give the organizers fair access to the
    ability to communicate with employees while the employer was
    able to do this unfettered.
        You know, I am just amazed at the misuse of the English
    language. I am a former English teacher. I mean, my sophomores
    would be able to detect this Orwellian use of the English
    language.
        Mr. Perl, you know, in your testimony you assert: By
    shortening the time from petition to election date the board
    broadly limits all employer free speech. Isn't it true that the
    employer can relay their views on collective bargaining to
    their employees at any time, including when they are hired and
    at any point in their tenure with the company? Isn't that true
    they can do that?
        Mr. Perl. Well, the employer has an opportunity to talk
    about a union--
        Mr. Takano. So the answer is yes. Thank you.
        Isn't it true that employers can mandate that their
    employees go to presentations--mandate their employees go to
    presentations, as Ms. Crawford stated, that relay the employer
    perspective on unionization and collective bargaining but
    unions are not afforded the same process because they can't
    communicate with them? I mean, not on the same level. I mean,
    the employer has all this access to their--
        Mr. Byrne. The five minutes is up. Please wrap up your
    answer very quickly, Mr. Perl.
        Mr. Perl. In terms of onboarding employees, the employers
    typically aren't spending the time of onboarding to talk about
    unions. They are talking about the competitive needs of
    business today, and what the culture of the company is, and
    about how we have to work together pursuing common visions and
    common goals--
        Mr. Takano. We know that we are talking about in the
    context of an election.
        Mr. Perl.--to achieve the business.
        So what has happened in so many cases is that a union has
    spent weeks preparing for an organizing campaign, and the
    reason it is aptly dubbed ``ambush elections'' is because in
    many cases the employer is not even aware of the organizing
    attempt. Unions--
        Mr. Byrne. With that, we are really going to have to cut
    off. We are way over the five minutes.
        Mr. Takano. Thank you, Mr. Chairman.
        Mr. Byrne. Thank you, Mr. Takano.
        The chair now recognizes the gentleman from Georgia, Mr.
    Allen.
        Mr. Allen. Thank you, Mr. Chairman.
        And I have listened with quite a great amount of interest
    in the testimony here this morning. My experience has been the
    business world for 37 years. I founded a company 37 years ago.
        Prior to that, my experience working in the business world
    in construction was with a union company, and so I understand
    that side of the business as well. In fact, as the secretary of
    the local contractors' association I actually negotiated union
    agreements with the unions that were represented in our
    industry.
        So I am quite knowledgeable about the pros and cons of the
    union versus the non-union.
        I will say that as the owner of a company, we do have
    company meetings. And, you know, some folks don't like them.
    But I can't help that.
        I mean, you know, part of the process of establishing a
    vision for a business is to communicate that vision properly,
    and you have these meetings so that you kind of understand
    everybody's role, and where the company is going, and how the
    company is doing.
        So, you know, it is possible that these meetings could be
    construed to be anti-union. I don't know.
        Mr. King, what is your experience with that? I mean, as far
    as in your representation of businesses that--where companies
    have meetings, I mean, is automatic testimony that these--oh my
    goodness, these are anti-union meetings?
        Mr. King. Congressman Allen, absolutely not. Yes, there may
    be some content in those meetings regarding the negative
    aspects of unionization, but the worker today is far more
    educated than what the worker was many years ago--access to
    information through the Internet, through many other sources.
        If anyone is here today to suggest that an employer can
    just brainwash an employee and threaten or coerce an employee
    to just vote for the union in one of these meetings, they are
    not in touch with reality. In fact, I have seen it backfire
    when some employers go too far.
        And on the remedy question, we have discussed the legal
    remedies. The remedy, frankly, for an employer that has a
    scorched earth campaign and fires employees and treats
    employees poorly--they are going to lose that election. The
    union is going to use that against them every time.
        So it is a practical matter. The practical deterrent is you
    don't do that. You just don't do it.
        But these meetings, to answer your specific question, no,
    there is no magic in these meetings. And frankly, some
    employers turn employees off in these meetings.
        Mr. Allen. Thank you.
        Yes, sir?
        Mr. Taubman. Mr. Allen, I would also like to add, in
    response to some of this about unequal access, since I do a lot
    of election cases--certifications, decertifications, what have
    you--I have seen in more and more campaigns today websites set
    up where a group of employees will set up a website. So once
    they set up a website and the word is out, ``Hey, if you want
    information about our campaign you can sign up, you can
    voluntarily give us your information,'' it is out there.
        I see websites in campaigns now constantly. But those
    employees have the option of voluntarily logging in and giving
    their e-mail information.
        Mr. Allen. And while I have got you, under the final rule,
    employers would be required to provide an expanded Excelsior
    list, including each employee's name, address, phone number,
    and e-mail address, within two days of an election order. In
    your experience, do unions visit employees' homes, call their
    phones during an organizing drive, or have employees described
    these interactions?
        Mr. Taubman. Absolutely. There are many complaints of home
    visits--unwanted home visits, union people parking themselves
    outside of people's homes, abusive things like that. So there
    is plenty of access that union officials have and use.
        Mr. Allen. Thank you.
        Mr. Perl, in your opinion, what is the NLRB up to here? I
    mean, you said 38 days and now they want to take it to 11. What
    exactly is going on?
        Mr. Perl. Well, I think we have to look at this in the
    context of what has happened in the last five to 10 years. It
    started in Congress with the Employee Free Choice Act, or EFCA,
    where the unions were seeking to gain representation with no
    elections at all. Congress refused to pass that desired
    legislation that labor was seeking to get passed.
        So what is the bailout? This really is a bailout for
    organized labor.
        Mr. Allen. Okay.
        Mr. Perl. And what it provides is a greater opportunity to
    be even more successful in union organizing by totally blowing
    up the representation procedure at the expense of employer free
    speech and employee free choice.
        Mr. Allen. Thank you, Mr. Perl.
        I yield back. I have no time left.
        Mr. Byrne. Thank you, Mr. Allen.
        The chair now recognizes the gentleman from Wisconsin, Mr.
    Pocan, for five minutes.
        Mr. Pocan. Thank you, Mr. Chairman.
        And let me just start off right off the bat, like I did at
    the last hearing, saying we have lawyered up well again today,
    but it would be nice to have business owners, who have some
    issues with this before us. Because usually when you bring
    lawyers that means you have got a problem, and it would be
    nice, like we have done before, joint employer rules--had some
    business owners. We brought an employee telling about their
    experiences. I just want to reiterate that point. I think it
    would be useful.
        Let's talk about what this rule really is, all right? It is
    doing two things.
        One, it is modernizing how we communicate. You know, you
    keep referring to cases from 1979, when we didn't have e-mails
    and we didn't have cell phones. This is just bringing us into
    an era that we are, 2015.
        And secondly, it is kind of dealing with the bad actors.
    And let's face it, if you are a good actor this rule is not
    going to affect you negatively. This myth of this 10 or 11-day
    election is much like the myth of the Loch Ness Monster or
    Bigfoot. Some people believe in it but, you know, most of us
    don't, and we have opinions on those who do.
        So that is the reality of where we are at.
        Let's just talk about the communication side of it, all
    right? I am a small business owner. I have been for 28 years.
        I have that employee basically a third of the day when they
    are working for me during their working days--if you think
    about it, half of the day that they are actually awake, because
    hopefully they are getting about eight hours of sleep. I have a
    lot of access points to that employee.
        Now, it is being said that, you know, there are all these
    great concerns over privacy.
        Let me start, Mr. King, with a quick question: Do you think
    it is all right to give the address of an employee to the
    union?
        Mr. King. I question that. I don't believe in the Loch Ness
    Monster either.
        Mr. Pocan. Well, that is all right, but if you could answer
    this question, because my time is really short, I would
    appreciate it. And I am glad to know that.
        Mr. King. There is certain basic information both parties
    should have.
        Mr. Pocan. Right. But the address, just real specifically.
    Yes or no? Do you think it is okay to--
        Mr. King. I think it is questionable. I think it is a
    considerable invasion of the privacy of--
        Mr. Pocan. Mr. Taubman, how about the same question about
    an address?
        Mr. Taubman. I think your employees should have the
    opportunity to opt out if they don't want their personal--
        Mr. Pocan. So is that a yes or a no? Real people use yes or
    no; lawyers don't. Yes or no?
        Mr. Taubman. So the question is, does--can you repeat the
    question then?
        Mr. Pocan. Do you think it is okay to give the address of
    an employee to the union that is trying to organize?
        Mr. Taubman. I think if the employee--
        Mr. Pocan. Boy, this is the longest yes or no, Mr.
    Chairman.
        Yes or no?
        Mr. Taubman. I can't answer that question yes or no because
    I think if the--
        Mr. Pocan. Okay. Well, see, here is the bottom line: I
    think it is far more intrusive to have someone at your door.
    There is the famous line, ``Look, I know where you live.'' No
    one says, ``Look, I know your e-mail.''
        I mean, ``Look, I know where you live,'' is a little
    stronger. So the fact that now we are adding more modern ways
    to communicate, things like e-mails and phone numbers, just is
    a logical extension.
        So let me talk about a couple things that T-Mobile did
    recently with their employees, all right, just to give you an
    idea on their union communication workers. Someone wore a t-
    shirt to work and talked about union activities. They were
    fired.
        Now, you said very strong, there are rules that you can't
    fire. But we all know what that really means. And in this case,
    we saw exactly what they did.
        The NLRB hearing in February of 24, local managers admitted
    they created unwritten policies which they used as excuses to
    fire him. No one is going to say, ``We are firing you because
    you are organizing a union.'' They are going to come up with
    something else.
        So is getting potentially fired from your job stronger than
    receiving an e-mail?
        Okay. I will take silence as an answer that no.
        How about when you have to, from day one, attend meetings
    about not joining a union. Is that stronger than receiving an
    e-mail?
        All right. I will take your silence again--that is great.
    How about spying--
        Mr. Pocan. Let me just--I have got to go through the list--
    spying on employees?
        Mr. King. Pardon me.
        Mr. Pocan. Is it more intrusive to be spied on by the
    company than to receive an e-mail?
        Mr. Taubman. I would like to answer--
        Mr. Pocan. Field that one? Sure, Mr. Taubman. Thank you.
        Mr. Taubman. I will field all of these, because I am not
    here to defend employers and employer conduct. I don't
    represent employers and I never have.
        I represent employees who report to me that they feel
    harassed and abused by getting home visits from union
    organizers--
        Mr. Pocan. But my question was--let's go back to my
    question that you said you were going to answer, all right? I
    mean, I know you are a lawyer, okay? It is tough. You have just
    got to kind of forget those law school years of not answering
    and just try to be the person you are and answer the question,
    all right? So go ahead and--
        Mr. King. I will give you a direct answer.
        Mr. Pocan. Thank you.
        Mr. King. You can send e-mails, as you know, Congressman--
    hundreds in a period of minutes. You can send texts--hundreds
    of texts--in a period of minutes--
        Mr. Pocan. But, you know, if they send 100 e-mails to me I
    know exactly what is going to happen. Either it is going in my
    spam folder or I am going to get pissed I got a 100 e-mails in
    a row. So they are not going to do that.
        So again, it is back to Loch Ness Monster and Bigfoot.
        Let me just try again. You have mandatory meetings over and
    over. Let's face it: The employers have plenty of access.
        It is a red herring to put this out there that somehow this
    is overly intrusive since the employer already has all of these
    ways to contact someone. That is the reality.
        And let me just close with this, Mr. Chairman.
        You guys who really believe--if you really, really believe
    an election can happen in 10 or 11 days and how--we know it is
    very, very rare, but how wrong that is, in the state of
    Wisconsin, with less than two weeks notice they announce a
    right-to-work law that they are voting on. If you really
    believe in your convictions that is too short of a timeline,
    please--I will get you, if you would like, the address of our
    governor and our legislative leaders. Could you tell them how
    terrible it is that they are forcing that in such a quick time?
    I would appreciate it.
        I yield back my time, Mr. Chairman.
        Mr. Byrne. Gentleman yields back.
        The chair recognizes the gentlewoman from North Carolina,
    Dr. Foxx.
        Ms. Foxx. Thank you, Mr. Chairman.
        Mr. Taubman, in your experience, do unions routinely
    provide employees they seek to organize information about
    themselves? For example, do unions disclose their
    constitutions; bylaws; results of unfair labor practice
    charges; results of negotiations for first contracts; past
    records with other employers; bargaining history; and demands
    that could include grossly underfunded, defined benefit,
    multiemployer pension plans; past records of civil or criminal
    violations and misconduct; and their record toward members
    ordering union fines and member discipline?
        Mr. Taubman. Congresswoman, I can assure you that no union
    discloses any of that kind of information to any employee. They
    are oftentimes voting in the dark.
        If they can get any of that information about the union
    that covets them, they are very lucky. And they need that
    information to make an informed decision.
        And I would just like to quickly add, when employees in a
    shop seek to decertify a union, they don't get Excelsior lists;
    they have to go out and try to communicate with their fellow
    employees. So they are not given equal access in trying to rid
    themselves of an unwanted union.
        Ms. Foxx. I am sorry my colleague left before he heard the
    answer to that question.
        Mr. Perl, in Ms. Crawford's testimony she describes the
    inclusion of charge nurses in the bargaining unit as a small
    issue. The issue there was whether they were employees or
    supervisors.
        Is this a small issue, Mr. Perl, and what are the possible
    problems with misidentifying a supervisor as an employee? Could
    the election be thrown out? Does the NLRB's ambush election
    rule solve this problem or make it worse?
        I know I have given you lots of questions. I can come back
    if you need--
        Mr. Perl. Well, no, your question is very clear, and it is
    very pertinent.
        The case I cited in the written testimony, the ITT Lighting
    Fixtures case, I personally handled that case, and it took five
    years all because a regional director, which held a hearing,
    had refused to resolve the status of 31 working group leaders,
    whose supervisory status was challenged by the company.
        And their pro-union activities influenced the outcome of
    the election, the employer filed objections to the election,
    and then there were multiple hearings, proceedings before the
    NLRB, it went to the United States Circuit Court of Appeals for
    the 2nd Circuit twice, and ended up five years after the
    petition was filed with a petition for certiorari being denied
    by the court. The election was vacated and the union was not
    certified.
        This procedure here makes that the new normal, because the
    issue of supervisory status, which perhaps in most cases is the
    most vital voter eligibility issue that exists, will not be
    resolved by the NLRB. They won't even hold a hearing now under
    the new rules.
        It is not a minor issue. It is a major source of dispute,
    often between employers and employees, and it needs to be
    resolved in pre-election hearings before the election is held.
    Otherwise the employer doesn't know how to deal with these
    people.
        The employer is entitled to the allegiance of its
    management team. If you don't know and have the assurance that
    these supervisors are on--are certified by the NLRB as
    supervisors and you can safely communicate, talk with them, ask
    them to do things, you run the risk of unfair labor practices
    if you do that. You do it at your peril.
        And when some of the congressmen are talking about unfair
    labor practices and bad actors, by refusing to resolve the
    status of supervisors, we are running the risk of creating a
    situation that is fraught with peril and potentially creating
    unfair labor practices, which creates unnecessary litigation
    for employers, as well as for the National Labor Relations
    Board.
        Ms. Foxx. Thank you, Mr. Perl.
        I do want to add one quick thing, Mr. Chairman. And again,
    I am sorry my colleague from California has left when he talks
    about Orwellian language.
        I would like to point out on this same subject that our
    friends introduced a bill called the Free Choice Act, related
    to imposing unions on employees. And if you want to talk about
    Orwellian language, I can match title for title any of them
    they want to talk about.
        Thank you, Mr. Chair.
        Mr. Byrne. The gentlewoman yields back.
        The chair now recognizes the gentlewoman from Oregon, Ms.
    Bonamici, for five minutes.
        Ms. Bonamici. Thank you very much, Mr. Chairman.
        And thank you, to our witnesses, for being here.
        I think it is a fascinating discussion. We are talking
    about a rule that was passed through a lengthy rulemaking
    process that is designed to streamline, modernize, and make
    more efficient, and reduce litigation in elections--that my
    colleagues are actually opposing this. It is a little bit
    baffling.
        And I also want to mention the process. The NLRB went
    through a lengthy--quite lengthy--public process in
    implementing this rule with, I understand, thousands of
    comments under the Administrative Procedure Act.
        Now, I know we are here under the Congressional Review Act.
    This is a fairly new experience for me because, frankly, it
    doesn't come up that often.
        I don't know what the standard is under the Congressional
    Review Act, but in light of the steps that are needed to get
    through the rulemaking process under the Administrative
    Procedures Act, I submit that they should be high--very high.
        And in fact, according to the Congressional Research
    Service, there has only been one rule that has been overturned
    since the Congressional Review Act passed in 1996. So this
    should be a very high standard.
        And as we know, there has already been a veto threat
    issued. There is a process, and it was followed by the NLRB.
        I want to say, Mr. Chairman, I am glad to serve on this
    committee and this subcommittee for many reasons, and among
    them is the role that this committee can play in protecting the
    rights of our hardworking constituents.
        The National Labor Relations Act is intended to promote
    workers' rights and prevent employers from mistreating their
    employees, and the ability of workers to collectively bargain
    is what led to the rapid expansion of the middle class in
    America. And we in Congress need to continue to discuss how we
    can strengthen our economy and keep it on track, and we need to
    focus on supporting our workers.
        I also want to mention that I was proud to--when I was in
    the Oregon legislature--to support and work on the Worker
    Freedom Act. Oregon is one of the states that has actually
    banned captive audience meetings.
        Now, I wanted to mention also that this union election
    process should allow for fair consideration of union
    representation by all employees without undue employer
    influence, and the new rules from the NLRB are designed to
    serve that process.
        And I wanted to ask you, Ms. Crawford--first of all, thank
    you for coming and explaining what happened in your situation.
    Your story is compelling and it is important that we hear from
    you. And, as my colleague from Wisconsin mentioned, we should
    be hearing from other employers.
        Now, you describe a month-and-a-half delay from the time
    you filed your petition to the time your employer set a date.
    But given that the issue of charge nurses in your unit employee
    had already been resolved, what reason did your employer
    provide for delaying the election?
        Ms. Crawford. As far as I know, it was just the date that
    they set that they wanted to have the election on, so we
    conceded and agreed to go along with that.
        Ms. Bonamici. So you are basically saying there was no good
    reason provided for delaying that.
        Ms. Crawford. No.
        Ms. Bonamici. So you describe your employer's relentless
    anti-union campaign. Was the union or those employees--who was
    advocating for union membership?
        Were they able to match that campaign with a pro-collective
    bargaining campaign? Were they able to match that relentless
    anti-union campaign in getting those messages across?
        Ms. Crawford. No. We tried, like I said, but the only
    information we had were home addresses. Even at work I tried
    passing--giving out fliers, getting information on my break
    time in the break room, which we don't always get breaks.
        And that information that is given that I had put in those
    rooms were--I would put it out, it would get thrown away, I
    would put it out, it would get thrown away. So it was very
    difficult to get out information.
        Ms. Bonamici. For you to communicate.
        Now, there was a comment made earlier today--I believe it
    was Mr. King who said that unions campaign for a long time and
    employers don't.
        And I wonder, Mr. King, are you contending that employers
    really don't know that their employees are attempting to
    unionize?
        Mr. King. Congresswoman, that is true in many cases,
    particularly for small employers. But put that aside. We have
    had this back-and-forth on elementary fairness.
        It is true, employers communicate prior to the filing of
    the petition to the election. Unions do campaign for months, if
    not years. But this misses the whole point.
        Similar to general elections, the electorate--the people
    that vote--don't really concentrate, often, on the issues at
    hand until shortly before the election. What we are saying here
    is there ought to be a minimum period of time for intelligent,
    thoughtful dialogue and debate, reasoned discussion, between
    the filing of the petition and the election.
        Ms. Bonamici. Understood. I am going to reclaim my time and
    ask one more question before my time expires.
        And, Ms. Crawford, you know, for 50 years employers have
    had to provide employees' home addresses. Don't you agree that
    receiving an e-mail is less intrusive than having somebody
    knocking on your door?
        Mr. Byrne. Very quickly, Ms. Crawford.
        Ms. Crawford. Yes. Yes. I feel--
        Ms. Bonamici. Thank you. And I have--my time is expired.
        Thank you, Mr. Chair.
        Mr. Byrne. The gentlewoman yields back.
        The chair recognizes the gentleman from Wisconsin, Mr.
    Grothman, for five minutes.
        Mr. Grothman. My question is for Mr. Taubman.
        What is the average time right now between a petition and
    the representation election?
        Mr. Taubman. I think those numbers are something like 40
    days, under current law--40, 50 days, something like that,
    which seems wholly reasonable in any election, whether it is a
    certification or even a decertification.
        Mr. Grothman. They give us more than 40 days when we run.
        About how many cases are delayed and how long?
        Mr. Taubman. I really can't speak to those numbers.
        I can tell you, as I pointed at in my testimony, since I
    have many clients who try to do decertifications, which you
    would think should be dealt with fairly and equally under the
    National Labor Relations Act. The decertifications are
    constantly blocked by union unfair labor practice charges. They
    go on for months and years, and some of that is in my written
    testimony.
        And when we asked the NLRB as part of this rule to just
    apply the rules across the board--whatever they were going to
    be, apply them across the board for certifications and
    decertifications--we were told, ``No. Forget about it.''
        Mr. King. Congressman, if I may, to answer your question,
    by the NLRB's own standards, less than 6 percent of the
    elections have any type of delay associated with them. But that
    is not the issue here. That is not the issue. That is a red
    herring issue at best.
        Mr. Grothman. Okay.
        Again, for Mr. Taubman, in your experience, does knowing
    the identity of the employees during the campaign have any
    effect on the way the employees vote--knowing the identity of
    the employees?
        Mr. Taubman. I don't believe so.
        Mr. Grothman. Okay.
        One final question for Mr. Perl: In your experience, both
    as an NLRB employee and as an attorney representing employers
    before the NLRB, following the petition, what kind of contact
    do employers and their representatives have with the regional
    director?
        Mr. Perl. Well, employers, after the filing of a petition,
    would be communicating with members of the regional director's
    staff to work out the time, date, and place for the election.
    And sometimes those discussions are consummated in several
    days; sometimes it is eight, nine days.
        But then that stipulation for certification agreement
    avoids a hearing, and it contributes to the fact that the
    median time for all elections held involving the National Labor
    Relations Board today is 38 days. And by any time target of the
    NLRB, the NLRB elections are timely held, by the board's own
    statistics.
        Mr. Grothman. How often do meetings like that lead to
    compromise in voluntary election agreements?
        Mr. Perl. Well, compromises take place by discussions among
    the parties.
        Now, there are some cases where a compromise cannot be
    reached. The case that Ms. Crawford cited involving the
    supervisory status of charge nurses--sometimes that is a
    litigable issue, and if it is not resolved pre-election and the
    charge nurses, for example, would vote, and if they are
    supervisors or not supervisors that could affect the results of
    the election and involve years of litigation before a union
    would be certified or not certified.
        So some issues must be litigated prior to the election.
    Many issues get resolved through voluntary compromises in the
    regional office with the regional director and his or her
    staff.
        Mr. Grothman. One final question: What--
        Mr. Byrne. You have time.
        Mr. Grothman.--what recourse does an employer have against
    a false statement a union makes or false information they give?
        Mr. Perl. Well, the law doesn't outlaw false statements by
    labor organizations. There is no truth in lending law that is
    applicable to union statements.
        The only way the employer can overcome that is with an
    ability for it to communicate what the true facts are to the
    workforce, and that is one of the reasons, Congressman, you
    point out, that an employer needs ample time to overcome any
    misrepresentations, and that takes some reasonable period of
    time and not an accelerated period of time that is provided in
    the new rules.
        Mr. Grothman. Just subjectively, do you think there are
    false statements made by unions in these elections?
        Mr. Perl. Well, anyone who has gone through an election
    understands that there is an opportunity on both sides to
    dispute the representations made by the other side. And unions
    have been doing this during their entire organizing campaign
    before it even files a petition. The only time the employer
    really can address the vital issues, as Mr. King suggested,
    when people are focused on the issues involved in the election,
    is after a petition is filed.
        The litmus test demonstrating--
        Mr. Byrne. Please wrap up quickly.
        Mr. Perl.--that the most critical time between the petition
    and the election is the NLRB's own rules on what is the
    objectionable period that you could file objections to the
    election. It is not prior to the election; it is after a
    petition is filed and before the election is held. That is the
    critical period, and that is the period we are saying an
    employer needs reasonable time to communicate with its
    employees.
        Mr. Grothman. Thanks so much.
        Mr. Byrne. The gentleman's time is expired.
        I think we have come to the end of questions from members.
        I want to thank each and every one of you for your
    excellent testimony today, for your time to be here, for your
    patience with the committee and its members.
        Mr. Polis, do you have any closing remarks?
        Mr. Polis. Thank you, Mr. Chairman.
        I want to thank our witnesses for spending their time with
    us in this hearing this morning. The story of Ms. Crawford is
    really a powerful testimony and a story that we remember as an
    example of one of the hundreds, if not thousands, of examples
    where employers have illegitimately used the current rules to
    their advantage, using the threat of a difficult process and
    indefinite delays to extract concessions from workers, often
    successfully delaying elections to the point of detriment for
    workers, using the personal information of workers against the
    workers' efforts to form a union.
        The relationship between the length of time it takes to
    hold an election and the illegal employer conduct is
    considerable, and the one in 10 cases where it takes more than
    100 days to reach an election are far more than just mere
    outliers.
        After having taken into account the thousands of comments
    on all sides of the issue, the NLRB has released a reasonable,
    common-sense rule that will reduce frivolous litigation, save
    resources and taxpayer dollars, standardize the election
    process, crack down on manipulation and threats, provide more
    predictability for both companies and employees, and promote a
    level playing field. A level playing field is all that workers
    ask for to improve the quality of our communities and the
    economy.
        I yield back the balance of my time.
        Mr. Byrne. Gentleman yields back.
        Let me sum up what I think we have heard today, very
    important testimony on a very significant issue.
        Mr. Perl said that the present rule of the National Labor
    Relations Board blows up the whole system of elections. I
    couldn't agree more.
        This system has been in place for 70 years. I took labor
    law in law school in 1979. I have been practicing law using
    this law for half the time of its existence.
        And lawyers and both sides, unions and management on both
    sides, have lived with this system successfully--each side
    doesn't always get to win; that is not the nature--for 70
    years. And it has worked. It has worked for unions, obviously.
    They are winning over 60 percent of their elections, so that is
    a pretty good win-loss record in this environment.
        And to solve what problem? What problem are we trying to
    solve here?
        Yes, there are going to be outlier issues, and Ms. Crawford
    gave really good testimony about a case that is truly an
    outlier. And we have outliers in legal proceedings. That
    happens.
        But in only 6 percent of the cases, according to the NLRB's
    own data, do elections go more than 56 days. And in most cases,
    in the median cases, it is 38 days.
        Now, when we run for office the time between when we have
    qualifying in and when people actually vote for congressmen is
    a lot longer than 38 days, because we believe our voters,
    before they elect us, should have the time to listen to us and
    think about who they want to be their representative, and it
    creates the representative democracy we have today.
        So I have got to say, this is a dramatic change in the law
    for nothing, except to create problems for employers and
    employees.
        And let me focus the employees in the second point. This is
    an employee decision. It is not the union's decision, and it is
    not management's decision.
        It is the employees' decision. They are the ones that go in
    that little voting booth an NLRB agent sets up and marks the
    ballot--that paper ballot they give them, yes or no.
        And that is a hard decision for them to make. They make it
    themselves, but also in talking with other employees and with
    their families because their families could be very definitely
    affected by this decision.
        If a union takes employees out on strike, the employer has
    the right to cease paying that employee and providing benefits
    like health insurance, and that involves the family. And to
    give the employees the time to sit down with their fellow
    employees and their family members and say, ``Is this a good
    decision for us--for me and my family'' seems to me to be
    pretty fundamental if you care about employees.
        Now, if you don't care about employees, if this is all
    about something else, then you wouldn't be concerned about
    that.
        But I think we on this committee should be concerned about
    employees. And if you are concerned about employees, there
    ought to be time for these employees to make this decision.
        And the last point, the third point, that is perhaps the
    most disturbing, is what this rule is doing to the privacy of
    the American worker.
        You know, I don't have too many of my constituents that
    come up to me and say, ``Well, I really would like to have a
    shortened time for union election.'' But I have plenty of
    people come up to me and say, ``I am worried about the way my
    private information is accessed by people in a lot of different
    ways.''
        Now, employers have to get certain pieces of information
    from their employees. Sometimes it is because what we require
    them to get, and sometimes it is necessary. You have got to
    make sure you have information for providing health insurance,
    et cetera.
        And that information is kept, I will tell you, in most H.R.
    directors' offices, kept in a locked cabinet with severe rules
    about who has access to it and what can happen with that
    information. And now we are going to tell employers that they
    have to divulge that information to an outside entity with no
    protections to the employee.
        I think that runs very counter to what we should be doing
    to protect the working people of America. And if they were here
    to be able to be heard--and, Ms. Crawford, I appreciate you
    being here--if we had more of them here I think we would hear a
    lot of concerns from them about that.
        So, I appreciate your testimony today. I appreciate the
    questions that came from the members. I think we have fleshed
    out this issue very well.
        I look forward to the action that will be taken on this
    matter. And at this point, this hearing is adjourned.
        [Additional submissions by Mr. King follow:]

        [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        [Additional submission by Ms. Wilson follows:]

       [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        [Whereupon, at 11:46 a.m., the Subcommittee was adjourned.]

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