[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

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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:]
    
    
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    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:]
    
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    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:]
    
    
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    [Additional submission by Ms. Wilson follows:]
   
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    [Whereupon, at 11:46 a.m., the Subcommittee was adjourned.]

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