[Senate Hearing 114-]
[From the U.S. Government Publishing Office]



 
  DEPARTMENTS OF LABOR, HEALTH AND HUMAN SERVICES, AND EDUCATION, AND 
          RELATED AGENCIES APPROPRIATIONS FOR FISCAL YEAR 2016

                              ----------                              


                         THURSDAY, MAY 14, 2015

                                       U.S. Senate,
           Subcommittee of the Committee on Appropriations,
                                                    Washington, DC.
    The subcommittee met at 10:04 a.m., in room SD-124, Dirksen 
Senate Office Building, Hon. Roy Blunt (chairman) presiding.
    Present: Senators Blunt, Shelby, Alexander, Lankford, and 
Murray.

                     NATIONAL LABOR RELATIONS BOARD

STATEMENT OF MARK GASTON PEARCE, CHAIRMAN


                 opening statement of senator roy blunt


    Senator Blunt. The Appropriations Subcommittee on Labor, 
Health and Human Services, and Education, and Related Agencies 
will come to order.
    We are certainly glad to have Mark Gaston Pearce, the 
chairman of the National Labor Relations Board, and Richard 
Griffin, the General Counsel of that Board, here today. Look 
forward to hearing your testimony and discussing issues and 
priorities at the National Labor Relations Board.
    This is the first oversight hearing of this committee the 
National Labor Relations Board (NLRB) in 7 years. I am glad we 
have the opportunity to have this forum to review the budget 
and recent decisions that the Board has made.
    During the Obama Administration, the NLRB's budget has 
increased by 8.9 percent, while its caseloads remain relatively 
flat. To put this in perspective, biomedical research funding 
has increased during that same period of time by 1.5 percent.
    For fiscal year 2016, the NLRB has requested another 
significant increase, including an increase of 30 full time 
employees. At the same time, the NLRB's policy and regulatory 
agenda ignore current law as well as long-standing precedent in 
areas that I am sure we are going to talk about today.
    For example, the contemplated change to the joint employer 
standard would depart from the intent of the revised National 
Labor Relations Act and judicial precedent in NLRB vs. 
Browning-Ferris. It would also depart from NLRB's own past 
policy and case precedent. The joint employer standard is not 
the only case that causes concern. The NLRB has initiated many 
changes that are having an adverse effect on jobs and 
consequently our economy.
    Congress recently voted to not approve the ambush elections 
rule that shortened the election timeframes to form a union, a 
timeframe that was typically only slightly more than a month 
from beginning to end.
    The details in the new rule make it clear that tying up 
employers in the process and significantly tipping the scale in 
favor of unions was the apparent objective. This rule requires 
that unprecedented levels of personal worker information be 
packaged and presented to organizers seeking to contact 
workers.
    Disclosure of such detailed additional personal information 
should not be required, especially without strong security 
safeguards and restrictions on how that data can be used.
    The NLRB's decision on micro unions to allow sub-bargaining 
units to organize independently of the majority workers also 
counters decades of past policy and presents extraordinary new 
operational problems in the workplace.
    I am sure we want to talk about these issues. I am sure you 
have things you want to say. Before we go to our witnesses 
today, I would like to recognize Senator Murray.


                   statement of senator patty murray


    Senator Murray. Mr. Chairman, thank you very much. I, too, 
want to thank our witnesses from the National Labor Relations 
Board for taking the time to be with us today. Chairman Pearce, 
Mr. Griffin, your work is absolutely critical, and I appreciate 
your service on the Board and your tireless efforts to defend 
the rights of workers and employers.
    I believe that real long term economic growth is built from 
the middle out, not from the top down, and our government has a 
role to play in investing in working families, making sure they 
have the opportunity to work hard and to succeed.
    Over the past few decades, working families have seen their 
incomes stagnate while the cost of living and healthcare and 
education has continued to go up. Too many families today are 
struggling to make ends meet on rock bottom wages and poor 
working conditions, and without collective bargaining rights, 
many workers have no recourse for improving their workplace.
    While the middle class share of America's prosperity is at 
an all time low, the biggest corporations have posted massive 
profits. That is just not fair. I believe that our government 
and our economy and our workplaces should work for all of our 
families, not just the wealthiest few.
    In 1935, Congress understood the need to protect the rights 
of workers and employers, and to establish the right to 
collectively bargain. That is why we have the National Labor 
Relations Act. Congress also understood the need for an agency 
dedicated to resolving disputes and preventing unfair labor 
practices. That is why we have the National Labor Relations 
Board.
    Unfortunately recently, some of our Republican colleagues 
have taken every opportunity they can to lob attacks on the 
NLRB and by extension, really attack workers who simply want a 
voice at the table in the workplace.
    I believe partisan attacks on the NLRB are unwarranted, and 
they are unproductive. When workers want to join a union, they 
are not looking for special treatment. They are simply trying 
to exercise a basic right.
    When the NLRB examines and adapts the National Labor 
Relations Act to changing patterns in the labor market or when 
it makes common sense updates to union election procedures, the 
Board is simply carrying out its duties under the law.
    I hope this hearing does not turn into another attempt to 
attack workers' rights to organize or criticize the NLRB for 
carrying out its mission. I do welcome the opportunity today to 
hear from the NLRB about its budget request and the work the 
Board is doing to protect American workers and employers.
    I support this budget proposal to increase investments in 
the Board's vital work. With ever changing employment 
relationships across the country, the Board adjudicates very 
complex litigation. This budget would help hire a small number 
of additional staff to continue its important work in 
investigating, in settling, and deciding its cases.
    This budget proposal will help the Board continue to 
resolve unfair labor practices in a timely manner, and it will 
help ensure employers and employees have access to a fair 
election process when workers want to vote on union 
representation.
    We as a Nation should not turn our backs on empowering 
workers through collective bargaining. That is the very thing 
that has helped so many of our workers climb into the middle 
class. It is no coincidence that when union membership was at 
its peak in the middle of the last century, America's middle 
class grew strong. Collective bargaining gave workers the power 
to increase wages.
    In fact, from the end of World War II through the mid-
1970s, wages rose along side the rise in American productivity. 
Unions helped workers get the training they needed to build 
their skills so they could advance on the job.
    They helped make sure men and women had safe workplaces. 
Union support was key to passing the Occupational Safety and 
Health Act of 1970, and since then, fatalities on the job have 
sharply declined, and workers have access to healthier working 
conditions.
    Through collective bargaining, access to healthcare rose, 
and that is still true today. Workers who are a part of a union 
are nearly 30 percent more likely to be covered by employer 
provided health insurance.
    All of those benefits strengthen economic security for the 
middle class and for those who are working hard to get there, 
and more Americans are able to share in the economic prosperity 
they have earned through hard work.
    In Congress, we need to continue to expand economic 
security for more of our families. That should be our mission 
to move our country forward. As part of that effort, we have to 
make sure the NLRB can work efficiently and effectively, and we 
need to make sure that all families have the chance to share in 
the economic prosperity of this country, not just the 
wealthiest few.
    Mr. Chairman, I do look forward to this hearing as a way to 
examine how the NLRB is moving forward toward those goals, and 
I truly hope we can work together on policies that create jobs 
and help our workers and families and create a very broad-based 
economic growth.
    Again, I thank our witnesses for being here today, and I 
look forward to the discussion.
    Senator Blunt. Thank you, Senator Murray. I think we would 
be pleased to have an opening statement both from Chairman 
Pearce and Counsel Griffin.


                summary statement of mark gaston pearce


    Mr. Pearce. Thank you. Good morning. Chairman Blunt, 
Ranking Member Murray, and members of the subcommittee, I am 
pleased to appear before you today, and thank you for this 
invitation.
    I am privileged to serve as the chairman of the National 
Labor Relations Board, which will celebrate its 80th 
anniversary in July of this year. Since the inception in 1935, 
the National Labor Relations Board has been tasked with 
enforcing the National Labor Relations Act, the Act born out of 
the Great Depression has long been a vehicle for employees and 
employers to resolve workplace disputes.
    The agency has never been a place without controversy, as 
we deal with the challenges workers and businesses face in our 
Nation's ever changing economy.
    Indeed, labor law continues to stir spirited debate in 
Congress as well as in many State houses. Regardless of 
political tides, this agency's job under 13 presidents has been 
to serve as the independent enforcer of our Nation's most 
fundamental labor laws.
    My colleagues at the Board and I take this duty very 
seriously, and strive to do so in an efficient, responsible 
fashion. General Counsel Griffin will speak more specifically 
about the agency's fiscal year 2016 budget request, and the 
General Counsel's side of the agency, which oversees and 
employs the vast majority of the staff.
    On the Board side, we have 149 FTEs, and the Board's 
funding allocation represents about 10 percent of the overall 
agency budget. The Board issued 248 decisions in contested 
cases last fiscal year. Decisions were issued in 205 unfair 
labor practice cases and 43 representation cases.
    During the first half of the current fiscal year, the Board 
has issued 202 cases, 79 percent of which were unanimous 
decisions.
    If we continue on this course, we will have one of the most 
productive years on record. That is not to say there are not 
issues affecting the agency's case processing. We have 
experienced many challenges over the prior 2 fiscal years, 
contentious debates in the Senate over confirmation of Board 
nominees have resulted in numerous vacancies impacting the 
Board's ability to process cases.
    Faced with the loss of quorum, recess appointments were 
made to the Board in January of 2012. These appointments were 
challenged by the Supreme Court in NLRB vs. Noel Canning. On 
June 26, 2014, the Supreme Court issued its decision in that 
case. Following that decision, 103 cases were returned to the 
Board for decision.
    For parties involved in these cases, expeditious resolution 
is critical, and the Board has continued to make great strides 
to resolve these cases. In my testimony before the House 
Appropriations Subcommittee on Labor, Health, and Human 
Services, I expressed the Board's commitment to resolve all of 
these cases by June 26, 2015, 1 year after the issuance of the 
Supreme Court decision.
    At the time of that hearing, the Board had issued decisions 
in 73 of those cases with another 27 cases pending and 4 that 
were otherwise resolved. Since that time, the Board has issued 
an additional 7 decisions, leaving only 16 cases pending with 7 
otherwise resolved.
    In addition to resolving the Noel Canning impacted cases, 
my colleagues and I have also instituted an enhanced 
alternative dispute resolution process. This process, led by 
the Office of the Executive Secretary, will help to minimize 
unnecessary protracted litigation. I am optimistic that this 
initiative will help improve our agency's efficient case 
processing.
    In addition to its case work, the Board has continued to 
expand its outreach efforts. We have worked to provide user 
friendly information to employees and employers via social 
media outreach and the creation of a free mobile application.
    The Board has also issued a final rule amending its 
representation procedures. The final rule is intended to enable 
the Board to more effectively administer the National Labor 
Relations Act. It includes several changes to existing 
procedures, all designed to reduce inefficiencies, modernize 
processes, and streamline representation case procedures.
    Mr. Chairman, the fiscal year 2016 budget request before 
you will enable our agency to provide workers and businesses 
with the effective and efficient case resolution they deserve.
    We have an important role to play in the Nation's economy. 
We need adequate resources to fulfill the responsibility of 
enforcing the National Labor Relations Act as we have done for 
80 years.
    Thank you for this opportunity to meet with you, and I look 
forward to your questions.
    [The statement follows:]
                Prepared Statement of Mark Gaston Pearce
    Chairman Blunt, Ranking Member Murray, and Members of the 
Subcommittee, I am pleased to appear before you today. Thank you for 
the invitation. I am privileged to serve as the Chairman of the 
National Labor Relations Board, which will celebrate its 80th 
Anniversary in July of this year.
    Since its inception in 1935, the National Labor Relations Board has 
been tasked with enforcing the National Labor Relations Act. The Act, 
borne out of the Great Depression, has long been a vehicle for 
employees and employers to resolve workplace disputes. The Agency has 
never been a place without controversy as we deal with the challenges 
workers and businesses face in our Nation's ever-changing economy.
    Indeed, labor law continues to stir spirited debate, as we have 
seen play out here in Congress. There has also been vigorous debate of 
these issues in State houses in recent months. Regardless of political 
tides, this Agency's job, under 13 Presidents has been to serve as the 
independent enforcer of one this Nation's most fundamental labor laws.
    My Colleagues at the Board and I take this duty very seriously and 
strive to do so in an efficient, responsible fashion. General Counsel 
Griffin will speak more specifically about the Agency's fiscal year 
2016 budget request, and his side of the agency, which oversees and 
employs the vast majority of staff. On the Board side, we have 149 FTEs 
and the Board's funding allocation represents about 10 percent of the 
overall Agency budget.
    The Board issued 248 decisions in contested cases last fiscal year. 
Decisions were issued in 205 unfair labor practice cases and 43 
representation cases. During the first half of the current fiscal year, 
the Board has issued decisions in 202 cases, 79 percent of which were 
unanimous decisions. If we continue on this course, we will have one of 
our most productive years on record.
    That is not to say that there are not issues affecting the Agency's 
case processing. We have experienced many challenges over the prior 2 
fiscal years. Contentious debates in the Senate over confirmation of 
Board nominees have resulted in numerous vacancies, impacting the 
Board's ability to process cases. Faced with a loss of quorum, recess 
appointments were made to the Board on January 4, 2012. These 
appointments were challenged in the Supreme Court in the case of NLRB 
v. Noel Canning. On June 26, 2014, the Supreme Court issued its 
decision in that case. Following that decision, 103 cases were returned 
to the Board for decision.
    I understand that for parties involved in these cases, expeditious 
resolution is critical, and the Board has continued to make great 
strides in resolving these cases. In my testimony before the House 
Appropriations' Subcommittee on Labor, Health, and Human Services, I 
expressed the Board's commitment to resolving all of these cases by 
June 26th, 2015, 1 year after the issuance of the Supreme Court 
Decision. At the time of that hearing, the Board had issued decisions 
in 73 of those cases with another 27 cases pending and four that were 
otherwise resolved. Since that time, the Board has issued an additional 
7 decisions, leaving only 16 cases pending with seven otherwise 
resolved.
    In addition to resolving the Noel Canning impacted cases, my 
colleagues and I have also instituted an enhanced alternative dispute 
resolution process. This process, led by the Office of the Executive 
Secretary, will help to minimize unnecessary and protracted litigation. 
I am optimistic that this initiative will help improve our Agency's 
efficient case processing.
    In addition to its casework, the Board has continued to expand its 
outreach efforts. We have worked to provide user-friendly information 
to employees and employers via social media outreach and the creation 
of a free mobile application. These resources help make workers aware 
of their rights and help employers better understand the protections 
available under the law.
    The Board has also issued a final rule amending its representation 
case procedures. The final rule is intended to enable the Board to more 
effectively administer the National Labor Relations Act. It includes 
several changes to existing procedures, all designed to reduce 
inefficiencies, modernize processes, and streamline representation case 
procedures.
    Mr. Chairman, the fiscal year 2016 budget request before you will 
enable our Agency to provide workers and businesses with the efficient 
and effective case resolution they deserve. We have an important role 
to play in the Nation's economy, and we need adequate resources to 
fulfill the responsibility of enforcing the National Labor Relations 
Act, as we have proudly done for nearly 80 years. Thank you for the 
opportunity to appear before you today and I look forward to your 
questions.

    Senator Blunt. Mr. Griffin.
STATEMENT OF RICHARD GRIFFIN, GENERAL COUNSEL, NATIONAL 
            LABOR RELATIONS BOARD
    Mr. Griffin. Chairman Blunt, Ranking Member Murray, and 
members of the Subcommittee, thank you for asking me to appear 
before you to discuss the agency's fiscal year 2016 budget 
request.
    The National Labor Relations Board is responsible for 
administering the National Labor Relations Act. The Act ensures 
the right of private sector workers to organize and bargain 
collectively with their employers, and to participate in 
concerted activities to improve their pay and working 
conditions with or without union representation.
    The Office of General Counsel serves as the agency's 
investigative and prosecutorial branch. I also serve as the 
agency's chief administrative officer. I have general 
supervisory authority over the agency's 26 regional and 24 
satellite offices, and directly oversee 7 headquarter divisions 
responsible for case handling, administrative, financial and 
personnel functions.
    I am privileged to work with extremely talented 
professionals and administrators who ensure that the agency is 
properly serving the public. They do this through investigating 
and prosecuting unfair labor practice cases, handling 
representation elections, and providing support for mission 
critical functions.
    Our fiscal year 2014 statistics illustrate our efforts to 
fulfill our statutory responsibilities. In excess of 23,000 
cases that were filed last fiscal year, 20,415 were unfair 
labor practices, 72 percent of which were resolved within 120 
days of filing. There were also 2,585 representation cases 
filed.
    Unfair labor practice charges are filed by individuals, 
businesses, and unions. After investigation by the regions, 
64.7 percent of unfair labor practice charges, almost two-
thirds, were found to be without merit and dismissed or 
withdrawn. For those meritorious, 93.4 percent, more than 9 out 
of 10, were settled.
    When litigation had to be pursued, 85 percent of our unfair 
labor practice and compliance cases were on in whole or in part 
before the Board or an administrative law judge, and 84.6 
percent of our cases in the Courts of Appeals were enforced or 
affirmed in whole or in part.
    We recovered over $44 million predominately in back pay on 
behalf of employees, and secured more than 3,000 offers of 
reinstatement.
    The agency also has the authority to seek temporary 
injunctions from the Federal District Courts to ensure that the 
traditional NLRB remedies do not come too late to repair the 
damage done by unfair labor practices. Last fiscal year, the 
Board authorized my office to seek injunctive relief in 38 
cases, and all these cases that ended up having to be litigated 
were won in whole or in part.
    The agency's successful resolution of disputes between 
employers, unions, and employees implements our congressional 
mandate to promote industrial peace. In this regard, the 
efficient resolution of workplace disputes saves all parties 
from expending significant time and resources in debilitating 
industrial conflict.
    Success in resolving industrial disputes is completely 
dependent upon maintaining adequate staffing, training that 
staff, engaging in appropriate succession planning, investing 
in long term information technology solutions, and addressing 
all other operating costs, including case related travel.
    About 80 percent of our proposed budget is dedicated to 
personnel compensation and about 10 percent is required for 
rent and security. More than half of the remaining amount is 
committed to crucial technological improvements to the agency's 
public website and case handling IT programs.
    The National Labor Relations Board plays a critical role in 
ensuring that workplace disputes are resolved efficiently and 
effectively. There is no private right of action under the 
National Labor Relations Act, and thus, workers, employers, and 
labor unions depend on the agency to resolve their issues.
    Without sufficient funding, both workers and employers 
stand to lose. Employees unlawfully fired for joining together 
to get better wages and working conditions will lose, employers 
subject to jurisdictional disputes or unlawful picketing will 
lose.
    I assure you that in fiscal year 2016, the agency will 
continue to execute our congressional mandate in a fair and 
timely manner. The agency's budget request will help us to 
carry out our important statutory mission.
    Mr. Chairman, thank you again for inviting me today. I look 
forward to working with you, and am happy to respond to any 
questions that you or other members of the committee may have.
    [The statement follows:]
             Prepared Statement of Richard F. Griffin, Jr.
    Chairman Blunt, Ranking Member Murray, and Members of the 
Subcommittee, thank you for the invitation to testify today. I 
appreciate the opportunity to appear before you to discuss the Agency's 
fiscal year 2016 budget request.
    The National Labor Relations Board (NLRB/Agency) is responsible for 
administering the National Labor Relations Act (NLRA/Act), which 
ensures the right of private-sector workers to organize and bargain 
collectively with their employers and to participate in concerted 
activities to improve their pay and working conditions with or without 
union representation.
    As General Counsel, my Office serves as the investigative and 
prosecutorial branch of the Agency as well as the Agency's chief 
administrative officer. In that capacity, I have general supervisory 
authority over the Agency's 26 regional and 24 satellite offices 
located throughout the country (Field offices). In addition, my Office 
directly oversees seven Headquarters divisions, which are tasked with 
various case handling, administrative, financial and personnel 
functions.
    The Agency has taken a number of proactive steps to ensure that we 
are serving the public in the most effective and fair manner possible. 
To that end, the Agency continues to proactively analyze its workload, 
technology requirements, and human capital in order to take appropriate 
steps to restructure, consolidate and otherwise streamline operations. 
To ensure that our national footprint meets the needs of the public 
within budgetary constraints, we consolidated six Regional offices and 
closed one Resident office within the past 2\1/2\ years. We will 
continue to regularly assess these operations in fiscal year 2016 and 
beyond. Similarly, in Headquarters, within the same timeframe, we 
developed a Compliance Unit to better assist Regions with obtaining 
remedies for statutory violations and created a Division of Legal 
Counsel, which enhanced our handling of legal and government ethics 
issues. The creation of the Division of Legal Counsel has also 
centralized the handling all FOIA requests and appeals through the FOIA 
Branch enabling more than 1050 Field office staff members to focus 
primarily on case handling matters.
    Our below-referenced fiscal year 2014 statistics illustrate our 
dedicated efforts to meet our statutory responsibilities.
    The Agency's case intake was in excess of 23,000 cases. Of those 
20,415 were unfair labor practice cases, and 72.3 percent of which were 
resolved within 120 days of filing. 2,585 representation cases were 
filed.
    Unfair labor practice charges are filed by individuals, businesses, 
and unions. After investigation by the Regions, 64.7 percent of unfair 
labor practice charges filed were found to be without merit. For those 
deemed meritorious, 93.4 percent were settled without litigation. When 
litigation had to be pursued, 85 percent of our unfair labor practice 
and compliance cases were won, in whole or in part, before the Board or 
an Administrative Law Judge, and 84.6 percent of our cases in the Court 
of Appeals were enforced or affirmed, in whole or in part.
    As for remedies, last fiscal year the Agency recovered on behalf of 
employees over $44 million, predominantly in back pay, and secured 
offers of reinstatement for more than 3,000 workers.
    In cases where traditional NLRB remedies might come too late to 
repair the damage done by unfair labor practices, the Agency strives to 
ensure that appropriate remedies are expeditiously sought using Section 
10(j) of the Act. This authorizes the NLRB to seek temporary 
injunctions against employers and unions in Federal district courts to 
stop unfair labor practices while the case is being litigated before 
administrative law judges and the Board. These temporary injunctions 
are needed to protect the process of collective bargaining and employee 
rights under the Act. In fiscal year 2014, the Board authorized my 
Office to seek injunctive relief in 38 cases and all such cases that 
were litigated in district court during that fiscal year were won, in 
whole or in part.
    The Agency has been trusted with promoting industrial peace and our 
ability to successfully help resolve disputes between employers, 
unions, and employees in private sector workplaces is paramount to 
fulfilling that responsibility. In this regard, the efficient 
resolution of workplace disputes saves employers, unions, and workers--
American taxpayers--from expending significant time, resources, and 
funds in debilitating industrial conflict.
    The Agency's success in this area is completely dependent upon our 
ability to maintain adequate staffing levels, to sufficiently train our 
staff, to engage in appropriate succession planning in light of the 
expected loss of a significant number of our retirement-eligible 
employees, to invest in long-term Information Technology (IT) 
solutions, and to address all other operating costs, including case-
related travel.
    Most of our proposed budget--about 80 percent--is dedicated to 
personnel compensation. Further, about 10 percent is required for rent 
and security. As a result, only about 10 percent of the Agency's 
overall budget is available to cover the rest of the Agency's necessary 
activities. More than half of that remaining amount is committed to 
support necessary technological improvements to the Agency's public 
website and case handling programs. These expenditures are particularly 
crucial now that the Agency has moved to a system where the electronic 
case file --maintained in an internal computer system called NxGen-- is 
the official case file. Additional funds sustain educational and 
outreach efforts aimed at providing guidance to business owners and 
human resource professionals, as well as workers, about our statute. 
These outreach efforts include the issuance of public memoranda 
discussing appropriate handbook rules and policies in response to the 
business community's desire for guidance in this area, including a 
comprehensive guidance memorandum that was issued in March.
    In addition, the Agency works to leverage resources. We have 
executed letters of agreement with Mexico, Ecuador, and the Philippines 
designed to strengthen collaborative efforts to provide foreign 
business owners doing business in the United States, as well as workers 
from those countries, with education, guidance and access to 
information regarding their rights and responsibilities under our 
statute. I believe that the costs associated with this outreach will 
pay dividends as employers will able to avoid unintentionally violating 
our statute and workers will be educated about their statutory rights 
to engage with one another to improve their conditions of employment, 
both of which benefits taxpayers, and the country as a whole, through 
increased economic growth.
    The National Labor Relations Board plays a critical role in 
ensuring that workplace disputes are resolved efficiently and 
effectively. As there is no private right of action under the National 
Labor Relations Act, workers, employers, and labor unions depend on the 
Agency to resolve their issues effectively and efficiently. Without 
sufficient funding, both workers and employers stand to lose. I assure 
you that, in fiscal year 2016, the Agency will continue to ensure that 
our Congressional mandate is executed, and in a fair, timely and 
quality manner. The Agency's budget request will help us to carry out 
this important statutory mission.
    Mr. Chairman, thank you again for inviting me today. I look forward 
to working with you and am happy to respond to any questions that you 
may have.

                        JOINT EMPLOYER STANDARD

    Senator Blunt. Thank you, Mr. Griffin. Thank you, Chairman 
Pearce. Let's talk, Mr. Griffin, first about what appears to be 
a new view while it is not in a rule yet or maybe not even 
adopted yet, but that we appear to be headed toward adopting a 
new way to look at the franchise model. It is not a model that 
is unique in our country, but certainly it is a model in our 
country that has been used to move lots of people economically 
forward.
    Your idea that you can no longer--I believe this is what 
our opinion says--you should no longer distinguish between 
direct and indirect control of employees.
    I just do not understand how that fits in with what I 
understand this model to be. Who hires people, who provides the 
benefits for people, who borrows the money to build the 
building, who has the liability. It appears to me to be the 
employer that NLRB has always viewed as the employer.
    What kind of confusion does it bring to the system, whether 
it is a hotel chain or any other franchise operation, when you 
suddenly are dealing with not only the person who hires the 
people and monitors them and pays them, but the entity that 
creates the sign that goes on the building?
    Mr. Griffin. Thank you very much for the opportunity to 
address this because it has been the subject of quite a bit of 
controversy, and it is important, I think, that my views are 
clear. I have responded to a number of congressional oversight 
requests on this question, and I would be happy to provide 
copies of those responses to you as well.
    [The information follows:]
    Letters Submitted by National Labor Relations Board to Congress
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    Mr. Griffin. Essentially what we are looking at in the 
joint employer situation is whether or not more than one entity 
is going to be responsible for terms and conditions of 
employment with respect to a group of employees.
    There is a case where the Board has requested briefing on 
the subject of whether or not it should abide by its current 
joint employer standard or whether it should seek to change 
that joint employer standard, and the case is called Browning-
Ferris, and it is still pending before the Board.
    In that case, my office filed an Amicus Brief, and what we 
suggested was that the Board, in light of the changing 
realities in the workplace, in light of the rise of a 
contingent workforce, and in light of changes in certain 
franchisor/franchisee situations, to the nature of some 
franchise relationships, the Board ought to return to the 
standard that it had from 1935 to 1984, what we characterize as 
the traditional joint employer standard.
    That standard looked at a number of factors, both direct 
impacts on employment and indirect impacts on employment, on 
terms and conditions of employment. It looked at actual and it 
looked at potential impacts. There was a case, for example, 
where one entity had the ability pursuant to a contract to 
determine the wages of the second entity. It had not actually 
done it yet, but it had the potential absolute control over 
wages.
    Under the old standard, both indirect and direct impacts 
were looked at, both actual and potential impacts were looked 
at. That is what we suggest the Board ought to return to in 
Browning-Ferris.
    Senator Blunt. Why did the Board change the standard 30 
years ago?
    Mr. Griffin. Well, it is a good question because the Board 
did not articulate that it was changing the standard. In two 
cases, TLI and Laerco, the Board, without announcing that it 
was changing the standard and without seeking briefing on 
whether it should change the standard, and without 
acknowledging it was changing the standard, the Board looked to 
certain direct impacts which were impacts that it had 
previously examined, and ratcheted up the standard to require 
those to be the bare minimum for finding joint employer status.
    Specifically with respect to franchises, and this is 
something I want to be absolutely clear about, our brief in 
Browning-Ferris acknowledges that there are a line of cases, 
Board cases, decided under the old standard, under the standard 
that we are asking the Board to return to, where the Board said 
if what the franchisor is trying to do is maintain the 
uniformity of its brand or product, and as a result of that 
effort, has an indirect impact on certain terms and conditions 
of employment, that indirect impact will be insufficient to 
make the franchisor a joint employer.
    We specifically say in the Browning-Ferris brief we are not 
seeking to overturn those cases, but where the franchisor 
exerts more control, where the franchisor pursuant to the 
current technologies available that allows franchisors to have 
real time information about what is going on at every 
franchisee location and insert themselves more into the 
determination of terms and conditions of employment, in those 
situations, we would say if the facts are demonstrated in a 
particular case, the franchisor may be a joint employer.
    In the McDonald's cases, which are currently being 
litigated, there is an allegation that McDonald's Corporate is 
a joint employer with franchisees. However, in the McDonald's 
cases, we are proceeding under the current Board's standard, 
and we believe we can demonstrate facts that will make out 
joint employer status under the current standard.
    We are also arguing in the alternative should the Board 
adopt the standard we advocate for in Browning-Ferris that that 
standard would certainly mean joint employer status for 
McDonald's as well.
    Just this week, we published on our website in a case 
called Nutritionality, which involves a franchisor/franchisee 
relationship for a product known as Freshii. There are about 
100 of these around the world.
    The advice memo said applying either the current standard 
or the prior standard, the Freshii relationship was not 
sufficient to make----
    Senator Blunt. Unless someone else gets there, I want to 
come back to this. I do not want to take all the time.
    One question I want to ask is are you doing what you think 
the Board did in 1984, which is not going through an open 
public comment rulemaking process but just having an opinion 
from you as to what the Board should do moving forward.
    We will come back to that. Senator Murray.

               CASE REPRESENTATION ELECTION PROCESS RULE

    Senator Murray. Thank you very much. Chairman Pearce, there 
has been a lot of rhetoric about the new streamlining 
elections. I have heard it called an ambush or solution in 
search of a problem. I actually disagree with that. I think 
workers should have access to free and fair elections when they 
decide on union representation, and in order to do that, we 
have to reduce the needless delays and obstacles that have 
interfered with the election process.
    Could you explain to us why it was so important for the 
Board to consider changes to the process? What was wrong with 
the existing system?
    Mr. Pearce. Thank you, Senator Murray, for giving me the 
opportunity to talk about that. The responsibility of the Board 
is to make the election process and the procedures that go 
along with it to be as effective and efficient as possible.
    The Board has always provided procedures for the election 
process, not all these procedures were subject to notice and 
comment because these were all administratively handled, which 
we were allowed to do.
    We have done tweaks to the procedures over time in more of 
a patchwork fashion. These procedures, in order for us to be 
able to streamline, provide sensitivity towards the 
modernization that exists now in current technology, and 
uniformity, so that people can experience the same procedures 
whether they file a petition in California or New York or in 
Texas, and a transparency so that all the stakeholders have an 
understanding as to what is going on.
    We felt it was necessary to provide a reformation of those 
rules, and that is what we did. Of course, we did this after 
much notice and comment, full transparency. We had public 
hearings. We had thousands of commentary that we reviewed and 
the like, so that we could make an informed decision.
    I think we achieved that goal. We have something that has 
been modified to provide a streamlined modernized uniform and 
transparent set of rules.
    Senator Murray. With regard to the word ``ambush,'' I 
understand that employers are actually free to talk the subject 
of unions with employees well before an election petition is 
filed; is that correct?
    Mr. Pearce. That is correct. Nothing in terms of the 
communications between employers and employees has been altered 
by these rules.
    Senator Murray. Mr. Griffin, I wanted to follow up on the 
chairman's questions about the joint employer status. Your 
decision to issue labor violations against McDonald's as a 
joint employer with franchises, which he asked you about, in 
February we actually had a hearing in the Health Committee on 
this.

                      CHANGES IN THE LABOR MARKET

    I want to highlight a little bit why this decision is so 
important to working families and low wage workers. Can you 
explain the ways the labor market has changed over the last 30 
years that made this decision so important?
    Mr. Griffin. As we expressed in the Browning-Ferris brief 
and a number of the other Amicus Briefs filed in the Browning-
Ferris case pointed out, there has been an exponential rise in 
what is called the contingent workforce, where aspects of the 
employment relationship, which used to be held entirely by one 
employer, have been separated between a number of entities.
    There are temporary agencies that provide workers. There 
are payroll agencies that carry people who work for someone 
else and fulfill all the payroll functions.
    That is one substantial change, and it alters the nature of 
the employment relationship where you are paid and all your 
benefits come through one entity but you are directed in the 
workplace by another entity.
    Senator Murray. Directed including what you can wear, what 
hours you work, what policies you have to follow?
    Mr. Griffin. Correct, and how you will fulfill your 
employment functions, what hours you show up, and things like 
that.
    Similarly, with respect to the franchise relationship, you 
have situations where there are now computer programs that 
allow franchisors to maintain real time information about not 
just gross sales but also how many people are working, what 
their hours are, and to direct if the relationship between the 
labor costs and the gross sales reach a point that they do not 
like, for people to go home even though they may be scheduled 
otherwise for a full shift.
    There are a number of changes to the workplace that call 
for a reviewing doctrine to make sure that it is still relevant 
and we still fulfill our function to promote the practice and 
procedure of collective bargaining.
    Senator Murray. Thank you. Thank you very much, Mr. 
Chairman.

                        STATE RIGHT TO WORK LAWS

    Senator Blunt. Mr. Alexander.
    Senator Alexander. Thanks, Mr. Chairman. Mr. Pearce and Mr. 
Griffin, welcome, good to see you. Mr. Pearce, you said it was 
the duty of the NLRB to enforce fundamental labor law. Would 
you agree Section 14(b) of the Taft-Hartley Act is a part of 
that fundamental labor law?
    Mr. Pearce. Yes.
    Senator Alexander. That gives States the right to pass a 
so-called right to work law, which 25 States, I believe, have 
done, right?
    Mr. Pearce. That is right.
    Senator Alexander. Tennessee is one of those States. The 
Tennessee law says two things. One is you do not have to join a 
union in order to hold a job. Does that sound like a correct 
law authorized by the NLRA?
    Mr. Pearce. I believe so; yes.
    Senator Alexander. It also says you do not have to pay dues 
or fees to the union in order to have a job. Does that sound 
like a right to work law authorized by the National Labor 
Relations Board?
    Mr. Pearce. It sounds like a right to work law that by 
statute a State is permitted to have; certainly.
    Senator Alexander. Thank you. There is a section of the 
National Labor Relations Act, 8(b)(1)(A), which the Supreme 
Court said in 1967 requires a union to serve the interests of 
all of the members of the bargaining unit, all the employees, 
whether or not they belong to the union.
    The NLRB in 1976 said a union cannot lawfully refuse to 
process a grievance of an employee in the union because he is 
not a member. In a non-right to work State, you can be fired if 
you try to assert those rights.
    What I am trying to understand is why the Board in April of 
this year requested legal briefs in an appeal of a case in 
Florida that asks these questions, in effect, whether unions in 
a right to work State like Tennessee can force employees who do 
not belong to the union to pay fees or other dues' like 
charges, and the legal briefs are to be about whether you can 
charge those non-union members fees, how much you can be 
allowed to charge, and what actions a union could take to make 
sure it gets paid.
    Why would you ask those questions when the law has been 
settled for 40 years, that a State may pass a law like the ones 
I read to you in Tennessee that says you cannot do that?
    Mr. Pearce. The case that is before us is one that I could 
not comment specifically on because it is pending.
    Senator Alexander. I am not asking you to do that.
    Mr. Pearce. I understand.
    Senator Alexander. If the laws that Tennessee has, for 
example, that you do not have to join a union, you do not have 
to pay fees, and the Supreme Court and the NLRB have said the 
union has to serve everybody who works at the plant, then why 
do you ask the question how much of a fee could they charge?
    Mr. Pearce. The issue presented in the case is whether a 
union can charge a fee for processing grievances of non-
members.
    Senator Alexander. That is exactly right. That is what I 
read to you. The Supreme Court in 1967 and the NLRB in 1976 
says that a union cannot lawfully refuse to process a grievance 
of an employee in the union because he is a non-member period. 
That is the law.
    Mr. Pearce. I agree.
    Senator Alexander. Why would you ask how much of a fee 
could the union charge?
    Mr. Pearce. The Board is soliciting briefs on the question 
of whether or not a fee can be charged for the processing of a 
grievance.
    Senator Alexander. But the Board has already held that a 
fee cannot be charged, and the Supreme Court has held the same 
thing. Why would you change the law?
    Mr. Pearce. I respectfully disagree. I think----
    Senator Alexander. Your opinion said in 1976 ``A union 
cannot lawfully refuse to process a grievance of an employee in 
the union because he is a non-member.'' Unquote.
    Mr. Pearce. That is right.
    Senator Alexander. Why would you ask for a brief on that 
question of how much the fee could be and what the union could 
do if the employee does not pay it?
    Mr. Pearce. The question that is asked for briefing is 
whether or not--it is not a question of whether or not a union 
can refuse to process a grievance of a non-member, because I 
think that is a matter well settled, as you pointed out.
    The question is whether or not it would be lawful or 
permissible for a union to charge a fee for the processing of a 
grievance, because of the administrative costs involved in 
processing a grievance, particularly where non-members are not 
obligated to pay dues.
    Senator Alexander. It seems to me, Mr. Chairman, and my 
time is up, that is undermining the right to work law, and 
there is talk often about the middle class. I cannot think of 
anything more damaging to middle income Tennesseans than 
anything that would undermine the right to work law.
    I have seen over the last 30 years how it has attracted the 
auto industry to our State, created a competitive industry, 
good jobs, helps families. The reason they came was because we 
had a different labor environment, because we had the right to 
create a right to work law, and I am very concerned that just 
these requests for briefs on law that has been settled for 40 
years suggests to me the Board is thinking about undermining a 
State like Tennessee's ability to have a right to work law.
    Thank you, Mr. Chairman.
    Senator Blunt. Mr. Lankford.

   PROTECTION OF PERSONAL INFORMATION UNDER NEW ELECTION PROCESS RULE

    Senator Lankford. Thank you, Mr. Chairman. Gentlemen, thank 
you for being here. I want to ask about the rule change from 
April 14, which shortens the length of days on union 
certification but it also allows access to personal information 
of the workers.
    My question is what processes or regulations have been put 
into place to help protect workers who do not want their 
personal information, their e-mail, their cell phone numbers, 
their home addresses, their shift times, shared with any 
outside organizations? Has there been a process or regulation 
put into place for workers who do not want that information 
shared?
    Mr. Pearce. Thank you, Senator Lankford, for giving me an 
opportunity to address that question. It should be known that 
the Supreme Court has set forth, and this is 50 years' worth of 
law--has required employers to supply the names and addresses 
of employees in the bargaining unit to the union that has filed 
the petition in advance of the election.
    That is supported by the Supreme Court. What this does is 
take into consideration modern technology where e-mail 
addresses are the most common mode of communication, and those 
and cell phone numbers where available to the employer.
    Senator Lankford. Are there any regulations intact that 
when that information is shared, e-mails, shift times, cell 
phone numbers, from any entity that gets that outside, what 
they do with that information, how it is distributed, how it is 
collected, how it is managed, the security of that information? 
It is pretty private information.
    Mr. Pearce. I understand that it is very private 
information. This information is being supplied to a party to 
an election process. That is the party that is entitled to it 
under these rules.
    Senator Lankford. Correct, but what do they do with it? 
What limitations do they have with that information? Are there 
any regulations on them, what they do with that information?
    Mr. Pearce. If they abuse the use of that information, 
unfair labor practice charges can be filed against them. 
Objections to elections can result.
    Senator Lankford. Could they sell that information, could 
they distribute it to another union outside of their community? 
Could they distribute it to other like-minded individuals or 
outside groups?
    Mr. Pearce. There has not been any documented cases where I 
have seen----
    Senator Lankford. Could they? Is there a limitation on 
that, on sharing their personal information with another group?
    Mr. Pearce. The limitation that we have placed on them is 
the abuse of that information would be a basis for unfair labor 
practices or objections.
    Senator Lankford. I am not talking about abuse of the 
information. I am talking about sharing that information. They 
now collect private information of individuals.
    If the local job training program came and said we want the 
shift times and the private information because we want to do 
vocational training for people here, they could not get that 
information.
    If the local fire department walked in and said they wanted 
that information, they could not get that. If the FBI walked in 
and said they wanted that information, they would have to get a 
subpoena to get that information.
    This information is shared, and I cannot seem to find a 
regulation that then restricts how that group that gets it then 
manages that information. That is the question I want to ask.
    Mr. Pearce. The rule specifically deals with that 
information being used solely for the purposes of the election.
    Senator Lankford. I would be interested to know how that is 
managed because that is a potential that is sitting out there 
for individuals' private information, for individuals that do 
not want to share that information.

                        JOINT EMPLOYER STANDARD

    I do have some very serious concerns on the shift and the 
franchise rules as well, because of the way the definition is 
sitting out there, Mr. Griffin.
    In your brief, you made the statement that your concern was 
it inhibits meaningful collective bargaining. I believe the 
term was ``direct, indirect or potential control over 
workers.''
    The potential control over workers has a tremendous broad 
definition that this particular Board may have an understanding 
of, but 10 years from now, 15 years from now, what does the 
potential control over workers--how far does this go to broaden 
this definition?
    We have hundreds of thousands literally of franchisors 
around the country. I have a couple of issues here. One is has 
there been any study of what happens with a significant change 
in our economy with a significant change in the franchise rule? 
Has there been any evaluation of the economic impact of that?
    I am interested in this comment about the workforce has 
changed significantly in the past several decades, so we need 
to return to a rule that we set aside 30 years ago, because 
there has been so much progress and change, we need to do 
something we used to do a long time ago.
    Those two do not seem to jive to me.
    Mr. Griffin. Thank you very much, Senator, for asking on 
this. A couple of points. The first is it has always been the 
case regardless of whether it is the current standard or the 
prior standard that the Board looks at a number of factors in 
making this determination, and in each instance, it is a very 
fact bound determination.
    What we are suggesting is a return to a standard, and 
incidentally, the EEOC filed a brief arguing this standard also 
be adopted because it is the standard that is applied in EEOC 
cases currently, so the EEOC made the point that the Board law 
and essentially all the labor enforcement law ought to operate 
on the same joint employer standard.
    What we would be arguing for in conjunction with the EEOC 
is looking at additional factors, and again, on a fact bound 
individualized basis if there was sufficient demonstration that 
the punitive joint employer had sufficient involvement, 
including examining indirect involvement examining potential 
involvement, that meaningful collective bargaining could not 
take place without them present at the table, then they should 
be held to be a joint employer. It is always going to be a fact 
by fact determination.
    Senator Lankford. My time is up. There has not been an 
economic study on the impact of this?
    Mr. Griffin. There were briefs filed on both sides of this 
in the Browning-Ferris case. There were a number of briefs 
filed that said the joint employer standard ``ain't broke, 
don't fix it.'' There were a number of briefs urging a change. 
Many of those briefs cited economic studies and other 
information.
    The Board itself did not conduct a separate economic study 
and in fact, it is statutorily prohibited from doing so.
    Senator Blunt. We will have time for another round if you 
have time, Mr. Lankford. Mr. Shelby.
    Senator Lankford. Thank you.
    Senator Shelby. Thank you. A lot of people are concerned, 
Mr. Chairman, about it seems that this Administration, and you 
are part of that, are trying to unionize America. What is the 
percentage of union workers in the private sector in America? 
Is it 10 percent, 9 percent, 8 percent? What is it, roughly? 
Not government. I am talking about privately owned companies, 
private companies.
    Mr. Pearce. My understanding is it is a little over 6 
percent.
    Senator Shelby. Six percent?
    Mr. Pearce. That is right.
    Senator Shelby. Getting into the franchise question here, 
are you moving to trying to say that if I had a franchise, this 
is McDonald's, but say it is Jiffy Lube or something like that, 
two or three of them, I buy the franchise. I go by the rules, 
but I hire the people. I fire the people. I hope not. If they 
did not work, I would have to. I pay the people.
    Let's say I promote myself, say a 401(k) for them, 
everything, control. I control the workforce. That has been 
traditionally separate from say the corporate company that 
issues the franchise being part of a unit, is that not right? 
Are you not moving toward unionization in areas where we have 
not seen that before?
    Mr. Pearce. Unfortunately, Senator, McDonald's is not a 
case before the Board, so it would be inappropriate for me to 
comment on that. Perhaps you might want to direct that question 
to----

                             RIGHT TO WORK

    Senator Shelby. We will watch what you do. We are concerned 
with what you are doing and the direction you are going. I want 
to associate myself--I come from Alabama. We are a right to 
work State and we want to stay that way.
    If somebody wants to join a union, that is fine. If they do 
not want to join the union, that is also fine. There ought to 
be a balance there. It has been until this Administration and 
you folks have gone in there and you are trying to change the 
rules. Everybody knows that. It is pretty transparent.

                            BLOCKING CHARGES

    I have a question. According to the National Labor 
Relations Board's 2015 budget justification, one of the 
agency's stated major goals is to promptly and fairly 
investigate, prosecute, and resolve unfair labor practices 
under the National Labor Relations Act.
    Often times, unions file multiple rounds of what they call 
``blocking charges,'' where union election petitions are placed 
on hold when an unfair labor practice claim is filed with the 
NLRB.
    A lot of us are concerned with the National Labor 
Relation's Board's attempt to keep union election campaigns 
open, just seems like indefinitely, as long as possible through 
multiple rounds of blocking charges, manipulating the system.
    For example, in Alabama, my State, there was a vote left 
open for over 4 years, Mr. Chairman, due to an ongoing pending 
investigation. Somebody filed an unfair labor. An ultimate 
decision that the blocking charges--I fear that without timely 
consideration--it is important. The blocking charges are a form 
of extortion without an end in sight. Where do you stop?
    Can you explain to the committee what a blocking charge is, 
and if there is any definitive date in which the National Labor 
Relations Board must complete its investigation into the 
allegations to abide by its goal of ``providing prompt''--these 
are your words or the Board's words--``and fair 
investigations?''
    Mr. Pearce. Thank you, Senator, for giving me this 
opportunity. A blocking charge is usually a charge that is 
filed because the nature of the unfair labor practice would 
negatively affect the laboratory conditions of the election----
    Senator Shelby. Give me an example of what you mean? Just 
an example.
    Mr. Pearce. An example would be the union files a petition 
of shoe factory workers, let's say, and the employer decides to 
start firing every worker that he suspects has voted for the 
union, or the employer has determined that Joe in shift one is 
responsible for bringing the union in, so he fires Joe, and as 
a result, everybody----
    Senator Shelby. I did not think you could do that.
    Mr. Pearce. Excuse me?
    Senator Shelby. I did not think you could do that. I 
thought they could not fire them for that reason.
    Mr. Pearce. They could not legally fire them for that 
reason, but that happens. That is why we are in business.
    Because of these rampant unfair labor practices, the 
laboratory conditions are such that people could not fairly 
feel they are exercising free choice in voting for a union, a 
blocking charge would result, and that charge would have to be 
completely investigated, and the unfair labor practice 
resolved, so the slate would be clear so you have an open, free 
and fair election.
    Senator Shelby. What if an employer filed an unfair labor 
charge against the union trying to organize, do you close the 
election or do you keep it open? What do you do?
    Mr. Pearce. The employer has the ability under certain 
circumstances to file unfair labor practices, but usually that 
is because of a union engaging in activities that disrupt the 
workplace.
    The employer has also the ability to file objections to 
conduct that would cause the election, if found meritorious, to 
be set aside and a new election held.

           INJUNCTIVE RELIEF RELATED TO EMPLOYEE TERMINATION

    Senator Shelby. Let me get in another question. My time is 
limited. It is my understanding that the National Labor 
Relations Board explores the opportunity to file a lawsuit in 
Federal Court seeking injunctive relief each time a union 
supporter is terminated by a company.
    Does the National Labor Relations Board have internal 
processes in place to provide a means for reinstating a 
terminated employee, and if so, it seems to me that filing that 
lawsuit could be unnecessary and redundant use of resources. Is 
that true? Do you go to court every time just about somebody is 
fired for cause and non-cause?
    Mr. Pearce. Senator, I do not think that is entirely the 
case. The only time the General Counsel goes to court seeking 
an injunction is where there is irreparable harm that has been 
caused as a result of the unfair labor practice, and in order 
for stability to be restored and not irreparably damaged by 
waiting for the litigation, the General Counsel would go to 
Federal Court to seek a cease and desist.

                    REGULATORY COST BENEFIT ANALYSIS

    Senator Shelby. We often hear about the cost of compliance 
of Federal regulations everywhere, including the National Labor 
Relations Board. Does the National Labor Relations Board ever 
conduct cost/benefit analysis on rules that it promulgates? If 
not, why not? In other words, what is the cost/benefit of a 
rule? There are plusses and minuses everywhere.
    Mr. Pearce. Certainly. There are different rules as well. 
We would have to assess what kind of rule we are talking about. 
If we want to use----
    Senator Shelby. We are just talking about a cost/benefit 
analysis, economic costs.
    Mr. Pearce. Right, certainly. One of the reasons why we did 
these recent rules is because we wanted to eliminate 
unnecessary litigation. There is a lot of resources expended 
for unnecessary litigation that we thought it would be 
appropriate for the American public to benefit from what we 
hope to be cost savings as a result of these circumstances.
    We have pushed to post-election a lot of issues that do not 
necessarily have to be decided in a pre-election hearing until 
after the election. Oftentimes, depending on the result of the 
election, those issues become mute and become unnecessary for 
litigation to take place.
    When we have litigation, it involves the paying of court 
reporters, the paying of government attorneys, the attorneys 
representing each of the stakeholders in the process. That 
becomes an expensive proposition.
    Senator Shelby. Mr. Chairman, I know my time has run, but I 
could ask quickly one last question?
    Senator Blunt. Yes.

                      COLLECTIVE BARGAINING UNITS

    Senator Shelby. Unit determination. This has been raised 
here. I think it is important from an employer, employee, and 
the union perspective as to which employees are placed in a 
voting or bargaining unit. This is especially true for 
employees who may have virtually all their terms and conditions 
of employment determined by a labor agreement negotiated 
between their union and their employer.
    Unit determination is also extremely important for the 
employer, as a strike, a work stoppage by one small micro unit 
could effectively shut down a plant or all of the employer's 
operations, as you know.
    What steps if any has the Board, the National Labor 
Relations Board, taken to prevent the undue proliferation of 
bargaining units in an employer's place of business? In other 
words, one little employee can shut down the whole place. You 
have seen that happen.
    Senator Blunt. Before you answer, Mr. Griffin, we are going 
to count my time in the second round to Senator Shelby. I might 
have something before the powerful banking committee one of 
these days.
    Senator Shelby. Thank you. You will have all the time you 
need.
    Senator Blunt. After you answer that, we will go to Senator 
Murray and then Senator Lankford.
    Senator Shelby. Thank you. Go ahead.
    Mr. Pearce. It is addressed to me, is that correct, 
Senator?
    Senator Shelby. Yes.
    Mr. Pearce. First of all, we would say there has not been 
any documented experience where over proliferation of 
bargaining units have negatively impacted an employer that has 
been presented to this agency.
    What we have done is we have issued cases like Specialty 
Healthcare where we have recognized the traditional standards 
for an appropriate bargaining unit. The average bargaining unit 
in the United States, the median bargaining unit in the United 
States ranges from 23 to 28 employees nationwide.
    Since the passage of Specialty Healthcare, which was 
confirmed by the Circuit Court and is adopting a standard that 
was recommended by another Circuit Court, there has been no 
change in terms of the proliferation or over proliferation of 
the bargaining units.
    In fact, this unit determination process has been running 
very smoothly.
    Senator Shelby. Mr. Chairman, thank you for your 
indulgence.
    Senator Blunt. Thank you, Senator. Senator Murray.

                NATIONAL LABOR RELATIONS BOARD CASELOAD

    Senator Murray. Thank you. I did want to ask you, Mr. 
Chairman, about your budget request while you were here. Some 
have said that the NLRB's budget should actually be cut because 
the caseload has declined.
    Can you talk to us about the trends in the Board's 
workload?
    Mr. Pearce. Thank you, Senator. I am happy to talk about 
that. The budget request is a modest one. We have had to deal 
with sequestration. We have had to deal with shutdowns of the 
government. We have had to deal with hiring freezes over time 
that we have never recovered from.
    The caseload, while the numbers are different, do not 
completely tell the story. For example, an election run by this 
agency for 20 voters or one for 45,000 voters is still 
considered one case. An example would be in 2013 where a 
California election had that many voters. That is still one 
case.
    Our caseloads are very time and fact intensive. Our 
employees are highly specialized individuals that have to 
investigate cases over vast regions of the United States. We 
are covering territories that are hundreds of miles apart. We 
have few investigators to be able to do that.
    Senator Murray. That adds additional time to any decisions?
    Mr. Pearce. That certainly has that impact. More staff 
would help to process cases faster. We can deal with 
complexities of case issues. On the Board side, when we get 
these complex cases, there are thousands and thousands of pages 
of transcripts. We are deciding cases, applying this 80-year-
old law to an ever changing work environment. They are all very 
fact specific, and it requires a lot of intensive analysis and 
investigation.

   NATIONAL LABOR RELATIONS BOARD WORK ON BEHALF OF NON-UNION WORKERS

    Senator Murray. Some have said because there is a declining 
rate in unionization that the NLRB caseload has been declining. 
The NLRA actually protects all private sector workers, 
including those that do not belong to a union.
    Talk a little bit about the ways the NLRB is acting to 
protect the rights of non-union workers.
    Mr. Pearce. Thank you for that, Senator. It is the case 
that Section 7 of the Act applies to all employees. We have 
circumstances where two or more employees want to get together 
and talk about their wages or complain about working 
conditions. Employees may not be able to function because the 
lighting is bad or there is not enough heat in the facility and 
they want to discuss that, and they may be penalized as a 
result of that.
    Those are employees that are entitled to the protection of 
the Act.
    Senator Murray. Even though they do not belong to a union, 
they have protections in this country?
    Mr. Pearce. That is exactly right. The social media cases 
are another example where you have a lot of employees that are 
exchanging discussions about terms and conditions of employment 
over social media. The vast majority of those social media 
cases that we have decided did not involve unionizing. It 
involved employees complaining about working conditions and us 
having to address those issues.
    Senator Murray. Okay. Thank you very much, and thank you 
both for being here.

                        JOINT EMPLOYER STANDARD

    Senator Blunt. Mr. Lankford.
    Senator Lankford. Thank you, Mr. Chairman. I want to come 
back again to the franchise issue. The concern is there are so 
many hundreds of thousands of businesses around the country 
that are franchises that know the rules right now.
    The concern is you were saying so much has changed in the 
business world over the last 30 years that we need to return to 
a rule that we had 30 years ago to catch up with what has 
happened in the last 30 years.
    Change is significantly the rules of the game, and at a 
time when we have increasing complexity in Federal regulations, 
and local and State regulations, many small businesses need 
additional help just trying to keep up with the rules. They are 
not trying to break the rules, they are trying to keep up with 
the rapidly changing pace of the rules.
    My question is when the issue is direct, indirect, or 
potential control of an employee, how that gets defined in a 
way when they are dealing with just basic quality standards and 
verification of standards, which a franchisor would want to do?
    They want to make sure the franchises out there are 
maintaining quality standards, but it suddenly creates this 
varied rule of where is control, where is not control, what is 
indirect control, what is potential control of an employee 
where they may be just giving counsel on a very complicated set 
of labor laws.
    Mr. Griffin. Thank you, Senator, because this is an ongoing 
battle.
    Senator Lankford. It is very, very important especially in 
our economy.
    Mr. Griffin. It is very important, and it is very important 
that we are clear about it. The first thing just to emphasize 
is that under the old standard, the standard we are talking 
about, the traditional standard, that we are asking a return 
to, there were these cases where if the franchisor is just 
seeking to maintain the quality of the brand or product and the 
uniformity of the brand or product, they are not a joint 
employer, and we have specifically said we are not seeking to 
overturn those cases. That is number one.
    Number two, in each of these cases, the small business is 
the franchisee. In each of these cases, if there is a merit 
determination made, there is no question that the franchisee 
has committed--if it is adjudicated, the facts are 
demonstrated, the franchisee is the one that has committed the 
unfair labor practice.
    The issue here is with respect to the larger business, the 
franchisor, and whether or not they are jointly responsible in 
any way, shape, or form. In terms of the small business, the 
small business either is on the hook if it is a merit 
determination or they are not, if there is no merit. As I 
indicated before, the vast majority of cases, 60 percent of 
these cases, are dismissed.
    With respect to the franchisor, there is no open case 
currently in the United States where we are seeking to hold a 
franchisor liable under the new standard. In each instance 
where we are seeking to hold a franchisor liable at this point, 
it is under the current standard.
    We are arguing----
    Senator Lankford. Right, you are asking for the old 
standard.
    Mr. Griffin. For the old standard, and we are arguing for 
it because in our view, there are instances where the 
franchisor goes beyond seeking to protect the brand or product, 
goes beyond the indirect impact on employment that comes in 
that situation, and has a more immediate impact on employment, 
or a bigger impact on employment, and under those 
circumstances, if particular facts are present, we think the 
franchisor should be a joint employer.
    We also think there are circumstances, and this recent 
advice memo in Nutritionality is a classic example, where the 
franchisor does not have sufficient involvement, and therefore, 
should not be held responsible.
    Senator Lankford. The issue is you are opening up this 
opportunity for a lot of litigation here every time a 
franchisor engages with a franchisee, and that back and forth 
conversation is common, especially with someone that is new 
starting a business, a first time franchise owner, they are 
trying to get the business started.
    They are asking for lots of advice, and suddenly, the 
larger company has to back up and say I cannot give you 
counsel, I cannot engage at that level because suddenly that is 
going to connect all of us, where in the past, that was common, 
to try to help someone get off the ground.
    You want training. You want equipment. You want people to 
be able to move in and start small businesses.
    My concern is this creates this artificial wall that 
actually diminishes the quality of our businesses, diminishes 
the incentive to start new franchises, and puts this fear into 
franchisors that I cannot really engage with the quality 
oversight and verification that I used to do.
    Mr. Griffin. Senator, as I indicated, if the nature of the 
engagement has to do with maintaining the quality of the brand 
or product or the uniformity of the brand or product, there are 
cases on that, and we have explicitly said, and I repeat, we 
are not seeking to overturn----
    Senator Lankford. I understand that, but when the 
redefinition changes to direct, indirect, or potential control, 
there is a lot of interaction between these companies, and you 
know that full well.
    The words ``potential control'' can mean a lot of things, 
and it does create just the fear of this wall that I am 
concerned will diminish the quality of our companies across the 
entire country and will discourage people from buying into 
franchises or will set the standard so high that franchisors 
will not release that authority to people that would like to 
start a first time business, but it is only going to be people 
that already have established businesses, and it is tougher to 
get in the market.
    I know this is hypothetical, but you are wading into 
territory that has serious long term implications for our 
economy and for a lot of people that want to start small 
businesses, and I would tell you to tread carefully, and I am 
aware you are trying to get the courts to engage in this rather 
than the Board to actually have to make this rule, and I get 
that.
    I am telling you when this comes around, this is going to 
have long term impacts. I would encourage us to go more careful 
and with more comment on what we are doing.
    I will yield back, Mr. Chairman. Thank you.
    Senator Blunt. Thank you, Senator. On that topic, give me 
an example of some circumstances. You said there are 
circumstances where the franchisor has more direct control.
    Maybe I will ask one specific question. In Senator Shelby's 
possible Jiffy Lube, if the franchisor says everybody that 
works there has to wear a shirt that says Jiffy Lube, I think 
the question of uniforms came up, is that control of the 
employee because you tell them they have to wear a shirt that 
says Jiffy Lube if they work for a Jiffy Lube franchisee?
    Mr. Griffin. Thank you, Senator. There is a specific case 
under the old standard that addresses that issue and 
specifically with respect to uniforms, which would otherwise be 
a mandatory term or condition of employment, that you would be 
obligated to bargain over.
    The Board has said in those prior cases that one of the 
aspects of determining the uniformity or maintaining the 
uniformity of the brand or product has to do with the wearing 
of uniforms and that is an insufficient impact to turn the 
franchisor into a joint employer with the franchisee.
    That is settled law and we are not seeking to overturn 
that.
    Senator Blunt. Is it insufficient by itself or it is 
insufficient unless there are two or three other things that 
are similar that suddenly it becomes sufficient?
    Mr. Griffin. When I said before that each one of these 
cases is fact specific, there is a wide variety of the ways 
franchisors deal with franchisees. Some franchisors, for 
example, own the property that the franchisee is located in. 
That obviously leads to a different relationship, particularly 
in response to labor disputes.
    Under those circumstances, it may well be the franchisor 
provides the security for the facility, the franchisor who 
calls the police with respect to alleged trespassers and things 
like that.
    That is a very different nature of a relationship than a 
franchisor who has no involvement with locating the property, 
who has nothing to do with siting the franchisee's enterprise.
    Each one of these cases is going to depend to some extent 
on the facts and circumstances. What I was saying was the case 
law where one of the indirect impacts that was essentially 
discounted because it went to the uniformity of the brand or 
product was specifically uniform.
    Senator Blunt. If the landlord relationship becomes the 
critical issue here, I thought it was the employer/employee 
relationship, what the National Labor Relations Board was 
concerned about.
    Mr. Griffin. One of the things that you look at in these 
matters is who has control over labor relations. It may be the 
individual franchisor is responding to a labor dispute in a way 
that includes responding to picketing or leafletting or other 
types of protected activity that is going on at the franchisee 
location, that is one factor I was mentioning.
    It may be the reason they are doing it is because it is the 
landlord. It may be the reason they are doing it is because 
they have some direct control over labor relations. That would 
be a factor that would be brought into play and considered in 
the multiplicity of factors that would be examined in this type 
of a test.
    Again, it is a fact intensive look at a particular 
relationship, and it is very difficult to make an one size fits 
all type determination.
    Senator Blunt. Is the only voice so far officially in this 
action, the only voice of NLRB, your brief to the court, in the 
case before the court? There is no NLRB rule out there, there 
is no proposed change in rule, there is no comment period on 
should we go back to the 1984 rule or is there?
    Mr. Griffin. To be clear, the brief is not before a court. 
It was the Board itself that has the Browning-Ferris case in 
front of it.
    Senator Blunt. We are not waiting for a court to decide, we 
are waiting for the Board to decide?
    Mr. Griffin. We are waiting for the Board to decide the 
Browning-Ferris case, and they did a call for briefing. They 
received many briefs from both parties----
    Senator Blunt. One of them was from their own attorney?
    Mr. Griffin. One of which was from the General Counsel's 
Office, and the General Counsel's Office, just to be clear, has 
multiple roles. When a case is before the Board, when it is 
being investigated and when it is being prosecuted, the General 
Counsel's Office--the regional office is acting on behalf of 
the General Counsel and is the chief prosecutor.
    Once the Board issues a decision in the case, the General 
Counsel's Office has another branch, the Appellant and Supreme 
Court Litigation Branch, which defends the Board decision, even 
if it is contrary to what the General Counsel advocated before 
it, defends the Board in the courts.
    In the case of Browning-Ferris, the General Counsel's 
Office is expressing the view of the General Counsel's Office 
as to what joint employer standard the Board should adopt. The 
Board has not adopted it yet. That case is still under 
consideration.
    Our brief was not the only brief, as I said.
    Senator Blunt. It was the only brief from the General 
Counsel?
    Mr. Griffin. It was the only brief from the General Counsel 
of the Board.
    Senator Blunt. It does seem to me that your earlier 
explanation about nobody can go back and quite figure out why 
the Board changed its view in 1984 could also be the ongoing 
view of why the Board changed its view in 2015.
    Mr. Griffin. Well, there was no request for briefing. There 
was no notice to the parties. There was no announcement that 
the Board was considering the issues in those cases.
    To the contrary here, the Board had a specific notice for 
briefing, specifically laid out questions with respect to the 
joint employer standard, and asked not just parties but for 
amicus as well to file their views, and there were quite a few 
briefs that were filed in response, so the Board could have a 
multiplicity of views, some saying stay with the standard, some 
saying change the standard, some simply providing information 
about the changing nature of the workplace.
    Senator Blunt. Well, I think even in the testimony today 
when we look back at it, we are going to see lots of potential, 
from the landlord relationship to this relationship, to that 
relationship, that affects you if you want to be a potential 
franchisee.
    I would have some sympathy with one instance you brought up 
where somebody else hires people, pays the unemployment 
compensation, pays the disability, however that works in a 
given State, and then the person who is the franchisee 
contracts with them to provide the employees--it would seem to 
me whoever pays the people, hires the people is responsible for 
what happens and all the potential liability for that 
workforce, that is a different circumstance than whether the 
franchisor is doing this.
    I think what many of us would feel here is this has been a 
significant model for people with hard work and determination 
and willing to take a chance and can get the banker to take the 
chance with them to create an opportunity to be an owner of a 
small business, but now suddenly you don't know if you really 
own the small business or Jiffy Lube International owns the 
small business.
    It is very complicating, I think. This is a case where 
clearly there is a lot of interest here. I would certainly ask 
you to recognize the interest and how you move forward in this.
    Senator Murray, do you have other questions?
    Senator Lankford. Mr. Chairman, can I ask one quick follow 
up?
    Senator Blunt. Yes, sure can.
    Senator Lankford. This has been pending for 10 months. Do 
you know when this decision is going to be made by the Board?
    Mr. Pearce. The Board is under active review of the case. I 
cannot predict exactly when it will be decided.
    Senator Lankford. We do not know, 2 weeks, 2 months, 2 
years?
    Mr. Pearce. That is right.
    Senator Lankford. What is typical? It has been before the 
Board for 10 months. What is a typical time period?
    Mr. Pearce. I am not trying to be cagey, but these cases 
are all fact intensive. These cases also involve a lot of legal 
theories and concepts. There are complex issues. We have five 
Board members, all of whom are independently evaluating and 
have their independent views with respect to how the case 
should be decided.
    We are in active deliberation on that. It is our hope this 
case will be decided as expeditiously as possible, and we are 
working very diligently in that regard. I cannot say more.
    Senator Blunt. Other questions, Senator Lankford?
    Senator Lankford. No, thank you.

          COMPOSITION OF BARGAINING UNITS AND ``MICRO-UNIONS''

    Senator Blunt. I have just one or two more. On the micro 
union question that Senator Shelby asked about, Mr. Pearce, you 
said there were no examples where over proliferation presented 
a problem, I think that is how you stated it. No examples of 
whether this complicates the workforce in any way?
    Mr. Pearce. There has been no documented examples that have 
been presented before us where over proliferation of bargaining 
units has created any kind of labor issues.
    Senator Blunt. I thought one of the purposes here of 
collective bargaining--Missouri is not a right to work State, 
so we have bargaining, we have unions. I am supportive of what 
they do and how they do it, and the law that allows them to do 
it.
    I thought the purpose here was to negotiate with one voice 
rather than individual voices. It seems to me this idea that we 
could have almost an infinite number of unions at some 
workplace works against that whole concept. That is just my 
view, and maybe you can explain to me at some other time, 
unless you want to explain it right now.
    Mr. Pearce. Well, I can say something about that, Mr. 
Chairman. I would be glad to. The standard is whether or not 
the unit being sought is an appropriate one. An appropriate one 
meaning whether or not there is a community of interest among 
those employees that are in that bargaining unit.
    It is a traditional standard. It is not an innovative 
standard. It is one that has been part of NLRB jurisprudence 
for decades.
    If you have a facility, for example, that has carpenters, 
and a facility that has shipping clerks, there is not going to 
be a community of interest generally between those two----
    Senator Blunt. What about the Macy's store where you 
recognized the sales force, NLRB recognized the sales force at 
the fragrance and cosmetics counter and let that group organize 
even though the entire sales force a year and a half earlier 
had said they did not want to organize under the same union.
    What is unique about the sales force at the fragrance and 
cosmetics counter that gives them a different view of the 
workplace than the shoe department next door, the sales force 
there that was part of not deciding----
    Mr. Pearce. Thank you, Chairman. In that particular case, 
the fragrance department people were compensated differently 
than the other salespeople. They had a specialized skill. They 
had commissions. Their terms and conditions of employment were 
different than the other sales people in the facility.
    Senator Blunt. Would it have been inappropriate for them to 
be part of the larger bargaining unit 18 months earlier?
    Mr. Pearce. Well, if the larger bargaining unit----
    Senator Blunt. Was salespeople. They were trying to bargain 
18 months earlier to be part of the unionized sales force, was 
that an inappropriate group to be part of that?
    Mr. Pearce. I would not speculate on whether or not it was 
an appropriate unit because that was not before us for 
analysis. I do not know what other factors would have come into 
play to make a determination as to whether there was a 
distinction or a commonality that would be useful in that 
assessment.
    I should point out that in the other case, Bergdorf Goodman 
and Neiman Marcus, we made a determination that the unit that 
was sought was not an appropriate one because it constituted a 
fractured unit. There was not a sufficient commonality.
    We have cut it both ways under that standard. Both 
employers and unions have used our standard in making effective 
arguments as to why a unit should be expanded or restricted.

                     ADDITIONAL COMMITTEE QUESTIONS

    One example is a case called Odwalla, the juice company, 
where the union wanted to have a defined bargaining unit, and 
the employer arguing Specialty Healthcare says the 
merchandisers should be included in that bargaining unit, and 
we agreed with them.
    Senator Blunt. Any other questions, Senator Murray?
    Senator Murray. No.
    [The following questions were not asked at the hearing, but 
were submitted to the Department for response subsequent to the 
hearing:]
                Questions Submitted by Senator Roy Blunt
    Question. Mr. Griffin, how many times in the past has the General 
Counsel issued complaints based on a change he or she wanted the Board 
to make to existing policy or precedent rather than based on current 
policy and established case law?
    Answer. General Counsels have generally agreed that where the 
National Labor Relations Board has not clearly spoken on a serious 
issue of national labor policy, the General Counsel should exercise 
prosecutorial discretion in a way that allows the unresolved issue to 
be presented to the Board for decision. Based upon review of potential 
law reform complaint authorizations in about the last 15 years, which 
cover the terms of General Counsels and Acting General Counsels 
appointed by both Democrat and Republican presidents, complaints 
involving at least twenty different subject matters have been 
authorized under existing law with an urging to consider an alternate 
theory or to give the Board an opportunity to rethink its precedent in 
light of judicial criticism, as well as the views of Board dissenters.
    Question. Given that the General Counsel himself cannot change the 
Board's standard, how do you justify taking the action you did against 
McDonald's?
    Answer. The consolidated complaint against McDonald's comports with 
typical actions taken by former General Counsels. Specifically, we are 
litigating the matter under the current joint employer standard. 
Additionally, following the past practice of other General Counsels, we 
are taking the opportunity to ask the Board to consider changing its 
current standard by reverting back to the pre-1984 traditional joint 
employer standard, as we did in the Browning Ferris Industries brief, 
since it better reflects the industrial realities of today's workplace 
environment.
    Question. Mr. Griffin, since the time you filed the charges against 
McDonald's based on a new joint employer interpretation, how many other 
franchisers have been charged with Unfair Labor Practices (ULPs) based 
on the actions of franchisees?
    Answer. We did not file charges against McDonald's. The Agency 
cannot sua sponte initiate unfair labor practice charges against 
private sector entities, but rather, investigates only those charges 
that are filed by members of the public. As to McDonald's specifically, 
after investigating such charges, we found merit to some and issued a 
consolidated complaint.
    Question. Mr. Griffin, the Wage and Hour Division at the Department 
of Labor has been approaching employers about creating--on a voluntary 
basis--oversight agreements with their suppliers with respect to Fair 
Labor Standards Act compliance. I understand you were asked a few 
months ago whether you would be inclined to consider these types of 
voluntary agreements as a basis for joint employer status. You 
reportedly said you would. Is that still your position?
    Answer. Thank you for the opportunity to clarify any 
miscommunication regarding this issue. The position that I took then, 
which remains today, is that Regional offices, under my oversight, will 
continue to investigate allegations of joint employer by considering 
all evidence. Thus, they could review the language of such agreements, 
as well as the practices emanating from them, in making decisions 
related to co-determining terms and conditions of employment. All cases 
are factually distinct and analysis would be performed on a case-by-
case basis.
    Question. Mr. Pearce, do you agree or disagree with Mr. Griffin's 
assessment?
    Answer. Unlike the General Counsel, the Board is an appellate 
tribunal that does not issue advisory opinions on this kind of 
question. Instead, it rules on the question if and when it is presented 
in a case that comes before it, based on the evidence in the case and 
the legal arguments made by the parties. I am not aware of any case 
pending before the Board that presents this issue.
    Question. Would either of you consider that to be deceiving well-
meaning employers into joint employer status?
    Answer. [Pearce] No.
    Answer. [Griffin]I do not believe that to be deceptive.
    Question. Have either of you had any communications with Wage and 
Hour Division (WHD) to coordinate on use of this tactic to pull 
employers together under an emerging new joint employer standard?
    Answer. [Pearce] No.
    Answer. [Griffin] I have not engaged in such communications with 
the Wage and Hour Division.
    Question. Mr. Pearce, to what degree does the Board intend to apply 
a modified joint employer standard to even more distant business 
relationships, such as parts suppliers or hired cleaning crews for 
example?
    Answer. The issue of the joint employer standard is currently 
before the Board; therefore, it would be inappropriate for me to 
comment.
    Question. After the ``ambush rule'' was finalized, both chambers of 
Congress voted to overturn the rule via the Congressional Review Act 
process. Doesn't the fact that the Congress--the elected body that 
oversees your Board as well as the law and its intent--voted to reverse 
your action send a strong message to the Board that it has overstepped?
    Answer. I take seriously all measures passed by Congress. With 
respect to interpretation of the National Labor Relations Act (NLRA) 
and its amendments, I follow the law established by the Supreme Court 
regarding how to ascertain congressional intent. While this is a 
substantial body of law, which I will not attempt to summarize here, I 
believe that the most significant considerations when seeking to 
ascertain the intent of Congress in enacting the NLRA and its 
amendments are the statutory language and the legislative history of 
the respective enactment, in that order.
    Question. In light of the votes in Congress, has the Board given 
thought to modifying, scaling back, or repealing its rule?
    Answer. The Board is not considering further rulemaking in this 
area at this time.
    Question. The NLRB has undertaken a restructuring of its field 
organization over the last 3 years. Your budget notes that resources 
are now better aligned with regional caseload. This result, combined 
with other efficiencies an agency would hope to achieve through a 
large-scale reorganization, would be expected to yield financial 
savings. However, the agency did not reduce its request for any 
activity and, in fact, increased its request for field investigations. 
Please describe the goals of the realignment and what, if any 
efficiencies were achieved?
    Answer. The goals of the Agency's realignment, both in field 
offices and headquarters, was to streamline operations, decrease 
duplication, and take advantage of technological advances. In the 
field, we consolidated Regional offices thereby reducing the number 
from 32 to 26. In doing so, we decreased the number of Senior Executive 
Service Regional Directors, as well as redundancies in compliance and 
office management. We also closed the Jacksonville resident office, and 
are considering closing the Des Moines resident office, which saves 
costs associated with rent.
    In headquarters, we created a Division of Legal Counsel, thereby 
creating a forum for ``one stop shopping''. Specifically, we 
consolidated the Special Litigation and Contempt and Compliance 
Litigation Branches based on the overlap and dovetailing of functions. 
We also moved a Compliance Unit into the Operations-Management Division 
to better assist field offices with obtaining compliance with decisions 
and orders. Additionally, we combined our government and legal ethics 
into one branch to ensure a broad and consistent review of overlapping 
issues, and we centralized our FOIA functions, such that all requests 
and appeals involving both General Counsel and Board-side matters are 
handled by the FOIA Branch, which now is also handling FOIA requests 
initially directed to field offices thereby allowing Board agents in 
the field to better serve the public.
    Additionally, we have consolidated eleven separate legacy case 
tracking systems into an integrated enterprise case management 
solution. Field offices, as well as headquarters' offices, are now 
utilizing this same case management system, which allows for remote and 
instantaneous access to documents contained within case files. We are 
also further developing our Internet applications, or ``apps'', and a 
unified communication system for easier, more effective, and quicker 
access to information.
    Question. Your budget requests 20-25 additional field examiners and 
attorneys, but does not discuss why the increase is necessary or 
exactly what they will do. Noting that overall caseload from the recent 
past is fairly stable and unfair labor practice cases have been down, 
why is an increase of this size needed--especially after a 
restructuring to improve caseload efficiency?
    Answer. The Agency protects the rights of tens of millions of 
private sector workers and protects millions of employers from 
workplace unrest thereby helping to ensure economic stability within 
this country. The vast majority of the work and public interface of the 
Agency occurs in the field offices. It is our field attorneys and field 
examiners that investigate charges, settle and litigate cases, engage 
in educational outreach to private business owners and their workers, 
and conduct secret-ballot elections. As I noted previously, we cannot 
initiate case processing until there is a filing by a member of the 
public and each case is factually distinct. Thus, in addition to not 
having control over the number of cases filed, we count each case as 
one unit, whether the matter involves an election involving 45,000 
nurses, such as a recent California case, a lockout of over 200 
workers, such as a recent Memphis case, or the discharge of one 
individual. Hence, the time and effort needed to handle each case from 
filing to closing cannot accurately be reflected in a caseload 
statistic. Additionally, as noted in my opening statement, there are a 
significant number of Agency employees who are retirement-eligible, and 
effectuating limited critical hiring of new board agents to absorb 
their institutional knowledge is crucial for succession planning, 
productivity, and our overall service to the public.
    Question. Mr. Griffin, I would like to ask you about another case 
called SCA Tissue, which is currently under appeal pending in your 
office and deals with ``minority unionism.'' The NLRB and General 
Counsels have dispensed with related questions relatively quickly in 
the past given the clarity of the National Labor Relations Act and the 
associated legislative history on the issue of majority rule within a 
bargaining unit. Why has it sat on your desk for about 8 months? Your 
regional office dispensed with it quickly and unequivocally. Does your 
extended review or delay imply that you are considering yet another 
major departure from precedent and law?
    Answer. I would like to thank you for your appreciation of the 
regional handling of the SCA Tissue case. My Office has recently issued 
a letter denying the appeal.
    Question. Mr. Pearce, is the Board considering changing its 
previous positions on this issue through this case as well?
    Answer. I am not aware of any case pending before the Board that 
presents this issue.
                                 ______
                                 
             Questions Submitted by Senator Lamar Alexander
    Question. Please provide answers to each of the following 
questions, with supporting data, and please specify the date on which 
you are calculating the data to answer the questions.
    Answer. The date used to calculate the data in all responses is 
June 3, 2015. Supporting data is included in the following table:


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                                                                           No. of Days    Election    Direction
Region             Case Number            Unit   Date Filed    Election     Filing to    Agreement   of Election
                                                              Held Date     Election       Issued       Issued
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                                          A     4/14/2015     5/8/2015           24     4/24/2015  ...........
     101-RC-150106                        B     4/14/2015     5/8/2015           24     4/24/2015  ...........
    3401-RD-150609                        A     4/22/2015    5/11/2015           19     4/29/2015  ...........
     202-RC-150235                        A     4/16/2015    5/14/2015           28     4/30/2015  ...........
     202-RC-150815                        A     4/24/2015    5/21/2015           27     5/12/2015  ...........
     202-RC-151412                        A      5/1/2015    5/27/2015           26     5/20/2015  ...........
     202-RC-152009                        A     5/11/2015    5/27/2015           16     5/20/2015  ...........
     303-RC-150147                        A     4/15/2015    5/11/2015           26     4/22/2015  ...........
     303-RC-150811                        A     4/24/2015    5/21/2015           27     4/30/2015  ...........
     303-RC-151272                        A     4/30/2015    5/12/2015           12      5/4/2015  ...........
     303-RC-151818                        A      5/8/2015    5/28/2015           20     5/15/2015  ...........
     404-RC-150059                        A     4/14/2015     5/8/2015           24     4/21/2015  ...........
     404-RC-150177                        A     4/16/2015     5/7/2015           21     4/23/2015  ...........
     404-RC-150307                        A     4/17/2015     5/8/2015           21     4/24/2015  ...........
     404-RC-150728                        A     4/23/2015    5/20/2015           27     4/29/2015  ...........
     404-RC-150790                        A     4/24/2015    5/20/2015           26      5/1/2015  ...........
     404-RC-150899                        A     4/24/2015    5/21/2015           27     4/30/2015  ...........
     404-RC-151199                        A     4/30/2015    5/28/2015           28      5/7/2015  ...........
     404-RC-151419                        A      5/4/2015    5/14/2015           10      5/7/2015  ...........
     505-RC-150035                        A     4/14/2015    5/13/2015           29     4/20/2015  ...........
     505-RC-150230                        A     4/16/2015     5/7/2015           21     4/23/2015  ...........
     505-RC-150645                        A     4/22/2015     5/6/2015           14     4/30/2015  ...........
     505-RC-150722                        A     4/22/2015    5/14/2015           22      5/1/2015  ...........
     505-RC-151117                        A     4/28/2015    5/29/2015           31      5/7/2015  ...........
     505-RC-151753                        A      5/7/2015    5/21/2015           14     5/15/2015  ...........
     606-RC-150296                        A     4/17/2015    5/15/2015           28     4/24/2015  ...........
     606-RC-150368                        A     4/20/2015    5/13/2015           23     4/24/2015  ...........
     606-RC-151386                        A      5/1/2015    5/21/2015           20      5/8/2015  ...........
     707-RC-150061                        A     4/14/2015     5/8/2015           24     4/21/2015  ...........
     707-RC-150097                        A     4/14/2015    5/14/2015           30   ...........     5/6/2015
     707-RC-150286                        A     4/17/2015    5/14/2015           27     4/24/2015  ...........
     707-RC-150703                        A     4/23/2015    5/15/2015           22      5/6/2015  ...........
     808-RC-150027                        A     4/14/2015    4/28/2015           14     4/22/2015  ...........
     808-RC-150541                        A     4/21/2015    5/15/2015           24      5/1/2015  ...........
     808-RC-150682                        A     4/23/2015    5/15/2015           22      5/1/2015  ...........
     909-RC-150405                        A     4/20/2015    5/12/2015           22     4/28/2015  ...........
     909-RC-150613                        A     4/22/2015    5/20/2015           28     4/28/2015  ...........
     909-RC-151309                        A     4/30/2015    5/19/2015           19      5/6/2015  ...........
    1010-RC-150042                        A     4/14/2015     5/8/2015           24     4/22/2015  ...........
    1110-RC-150582                        A     4/22/2015    5/26/2015           34     4/29/2015  ...........
    1110-RC-150835                        A     4/24/2015    5/21/2015           27      5/1/2015  ...........
    1110-RC-151143                        A     4/29/2015    5/21/2015           22      5/6/2015  ...........
    1212-RC-151061                        A     4/28/2015    5/21/2015           23      5/6/2015  ...........
    1313-RC-150912                        A     4/27/2015    5/12/2015           15      5/4/2015  ...........
    1313-RC-150917                        A     4/27/2015    5/27/2015           30      5/4/2015  ...........
    1313-UD-151151                        A     4/29/2015    5/28/2015           29   ...........    5/13/2015
    1714-RC-150243                        A     4/16/2015     5/7/2015           21     4/24/2015  ...........
    1414-RC-151115                        A     4/29/2015    5/19/2015           20      5/6/2015  ...........
    1414-RC-151350                        A      5/1/2015    5/21/2015           20      5/8/2015  ...........
    1414-RC-151446                        A      5/4/2015    5/26/2015           22   ...........    5/18/2015
    2615-RC-150292                        A     4/16/2015    5/14/2015           28     4/24/2015  ...........
    1515-RC-150893                        A     4/27/2015    5/28/2015           31      5/6/2015  ...........
    1515-RC-151118                        A     4/29/2015    5/19/2015           20      5/6/2015  ...........
    1616-RC-150207                        A     4/16/2015     5/7/2015           21     4/24/2015  ...........
    1616-RC-150508                        A     4/21/2015    5/19/2015           28     4/28/2015  ...........
    1616-RC-150834                        A     4/24/2015    5/21/2015           27      5/1/2015  ...........
    1616-RC-151211                        A     4/30/2015    5/27/2015           27      5/7/2015  ...........
    1616-RC-151317                        A     4/30/2015    5/19/2015           19      5/8/2015  ...........
                                          A     4/23/2015    5/13/2015           20      5/4/2015  ...........
                                          B     4/23/2015    5/13/2015           20      5/4/2015  ...........
    1818-RC-150800                         C    4/23/2015    5/13/2015           20      5/4/2015  ...........
    1818-RC-150846                        A     4/24/2015    5/21/2015           27      5/1/2015  ...........
    1818-RC-151161                        A     4/29/2015    5/27/2015           28      5/6/2015  ...........
    1818-RC-151725                        A      5/6/2015    5/20/2015           14     5/11/2015  ...........
    1818-UD-151274                        A     4/30/2015    5/27/2015           27      5/8/2015  ...........
    1919-RC-150145                        A     4/14/2015    5/14/2015           30     4/23/2015  ...........
    3619-RC-150163                        A     4/15/2015    5/15/2015           30     4/23/2015  ...........
    1919-RC-150189                        A     4/15/2015    5/12/2015           27     4/23/2015  ...........
                                          A     4/21/2015    5/14/2015           23     4/30/2015  ...........
    1919-RC-150515                        B     4/21/2015    5/14/2015           23     4/30/2015  ...........
    1919-RC-150590                        A     4/21/2015    5/19/2015           28   ...........     5/6/2015
    1919-RC-150769                        A     4/23/2015    5/13/2015           20     4/30/2015  ...........
    1919-RC-151030                        A     4/27/2015     5/8/2015           11      5/4/2015  ...........
    3619-RC-151686                        A      5/6/2015    5/27/2015           21     5/12/2015  ...........
    1919-RD-151173                        A     4/29/2015    5/20/2015           21      5/5/2015  ...........
    2020-RC-150652                        A     4/22/2015    5/11/2015           19     4/30/2015  ...........
    2121-RC-150214                        A     4/15/2015     5/8/2015           23   ...........     5/4/2015
    2121-RC-150242                        A     4/15/2015     5/8/2015           23   ...........     5/4/2015
    2121-RC-150749                        A     4/23/2015    5/27/2015           34   ...........    5/20/2015
    2121-RC-150874                        A     4/24/2015    5/15/2015           21     4/30/2015  ...........
    2121-RC-150980                        A     4/27/2015    5/21/2015           24      5/4/2015  ...........
    2222-RC-150289                        A     4/17/2015    4/27/2015           10     4/21/2015  ...........
    2222-RC-150630                        A     4/22/2015    5/15/2015           23     4/30/2015  ...........
    2222-RC-150700                        A     4/23/2015    5/19/2015           26      5/7/2015  ...........
    2222-RC-151333                        A      5/1/2015    5/27/2015           26     5/11/2015  ...........
    2222-RC-151421                        A      5/1/2015    5/22/2015           21     5/12/2015  ...........
    2525-RC-150488                        A     4/21/2015    5/20/2015           29     4/27/2015  ...........
    3325-RC-150678                        A     4/22/2015    5/13/2015           21     4/30/2015  ...........
    2828-RC-150167                        A     4/15/2015     5/8/2015           23     4/22/2015  ...........
    2828-RC-150168                        A     4/15/2015     5/2/2015           17     4/24/2015  ...........
    2828-RC-150855                        A     4/24/2015    5/15/2015           21      5/1/2015  ...........
    2828-RC-151070                        A     4/28/2015    5/14/2015           16      5/6/2015  ...........
    2828-RC-152225                        A     5/14/2015    5/28/2015           14     5/20/2015  ...........
    2929-RC-150499                        A     4/21/2015     5/6/2015           15     4/28/2015  ...........
    2929-RC-150622                        A     4/22/2015    5/14/2015           22     4/30/2015  ...........
    2929-RC-150681                        A     4/23/2015    5/13/2015           20     4/29/2015  ...........
    2929-RC-151196                        A     4/29/2015    5/19/2015           20      5/8/2015  ...........
    2929-RC-151310                        A     4/30/2015    5/20/2015           20      5/8/2015  ...........
    3131-RC-150220                        A     4/15/2015    5/20/2015           35     4/23/2015  ...........
    3131-RC-150568                        A     4/21/2015    5/22/2015           31     4/29/2015  ...........
    3232-RC-150090                        A     4/14/2015     5/8/2015           24     4/20/2015  ...........
    3232-RC-150360                        A     4/17/2015    5/19/2015           32     4/24/2015  ...........
    3232-RC-150861                        A     4/24/2015    5/21/2015           27      5/1/2015  ...........
    3232-RC-151435                        A      5/1/2015    5/27/2015           26     5/11/2015  ...........
----------------------------------------------------------------------------------------------------------------

    Question. How many election petitions filed on or after April 14, 
2015, have resulted in stipulated elections?
    Answer. 95
    Question. What percentage of all elections that have occurred based 
on petitions filed on or after April 14, 2015, has resulted in 
stipulated elections?
    Answer. 93.14 percent
    Question. How many election petitions filed on or after April 14, 
2015, have resulted in directed elections?
    Answer. 7
    Question. What percentage of all elections that have occurred based 
on petitions filed on or after April 14, 2015, has resulted in directed 
elections?
    Answer. 6.8 percent
    Question. For all of those directed elections that have occurred or 
been scheduled based on petitions filed on or after April 14, 2015, 
please list the date the petition was filed and the date the election 
occurred, or is scheduled to occur.
    Answer. Please see the following table:

                                               ELECTIONS CONDUCTED
----------------------------------------------------------------------------------------------------------------
                                                                                        No. of Days   Direction
Region                   Case Number                   Unit   Date Filed    Election     Filing to   of Election
                                                                           Held Date     Election       Issued
----------------------------------------------------------------------------------------------------------------
     707-RC-150097                                     A     4/14/2015    5/14/2015           30      5/6/2015
    1313-UD-151151                                     A     4/29/2015    5/28/2015           29     5/13/2015
    1414-RC-151446                                     A      5/4/2015    5/26/2015           22     5/18/2015
    1919-RC-150590                                     A     4/21/2015    5/19/2015           28      5/6/2015
    2121-RC-150214                                     A     4/15/2015     5/8/2015           23      5/4/2015
    2121-RC-150242                                     A     4/15/2015     5/8/2015           23      5/4/2015
    2121-RC-150749                                     A     4/23/2015    5/27/2015           34     5/20/2015
----------------------------------------------------------------------------------------------------------------


                           UPCOMING ELECTIONS
------------------------------------------------------------------------
                                                             No. of Days
Region      Case Number     Unit   Date Filed    Election     Filing to
                                                   Date       Election
------------------------------------------------------------------------
     606-RC-152049          A     5/12/2015     6/4/2015           23
     505-RC-150123          A     4/14/2015     6/5/2015           52
     404-RC-152582          A     5/20/2015     6/9/2015           20
    3619-RC-150979          A     4/27/2015    6/10/2015           44
     404-RC-152289          A     5/14/2015    6/14/2015           31
------------------------------------------------------------------------

    Question. For all of those stipulated elections that have occurred 
or been scheduled based on petitions filed on or after April 14, 2015, 
please list the date the petition was filed and the date the election 
occurred, or is scheduled to occur.
    Answer. Please see the following table:

                                               ELECTIONS CONDUCTED
----------------------------------------------------------------------------------------------------------------
                                                                                                   No. of Days
Region                  Case Number                    Unit      Date Filed     Election Held       Filing to
                                                                                     Date           Election
----------------------------------------------------------------------------------------------------------------
                                                        A         4/14/2015         5/8/2015               24
     101-RC-150106                                      B         4/14/2015         5/8/2015               24
    3401-RD-150609                                      A         4/22/2015        5/11/2015               19
     202-RC-150235                                      A         4/16/2015        5/14/2015               28
     202-RC-150815                                      A         4/24/2015        5/21/2015               27
     202-RC-151412                                      A          5/1/2015        5/27/2015               26
     202-RC-152009                                      A         5/11/2015        5/27/2015               16
     303-RC-150147                                      A         4/15/2015        5/11/2015               26
     303-RC-150811                                      A         4/24/2015        5/21/2015               27
     303-RC-151272                                      A         4/30/2015        5/12/2015               12
     303-RC-151818                                      A          5/8/2015        5/28/2015               20
     404-RC-150059                                      A         4/14/2015         5/8/2015               24
     404-RC-150177                                      A         4/16/2015         5/7/2015               21
     404-RC-150307                                      A         4/17/2015         5/8/2015               21
     404-RC-150728                                      A         4/23/2015        5/20/2015               27
     404-RC-150790                                      A         4/24/2015        5/20/2015               26
     404-RC-150899                                      A         4/24/2015        5/21/2015               27
     404-RC-151199                                      A         4/30/2015        5/28/2015               28
     404-RC-151419                                      A          5/4/2015        5/14/2015               10
     505-RC-150035                                      A         4/14/2015        5/13/2015               29
     505-RC-150230                                      A         4/16/2015         5/7/2015               21
     505-RC-150645                                      A         4/22/2015         5/6/2015               14
     505-RC-150722                                      A         4/22/2015        5/14/2015               22
     505-RC-151117                                      A         4/28/2015        5/29/2015               31
     505-RC-151753                                      A          5/7/2015        5/21/2015               14
     606-RC-150296                                      A         4/17/2015        5/15/2015               28
     606-RC-150368                                      A         4/20/2015        5/13/2015               23
     606-RC-151386                                      A          5/1/2015        5/21/2015               20
     707-RC-150061                                      A         4/14/2015         5/8/2015               24
     707-RC-150286                                      A         4/17/2015        5/14/2015               27
     707-RC-150703                                      A         4/23/2015        5/15/2015               22
     808-RC-150027                                      A         4/14/2015        4/28/2015               14
     808-RC-150541                                      A         4/21/2015        5/15/2015               24
     808-RC-150682                                      A         4/23/2015        5/15/2015               22
     909-RC-150405                                      A         4/20/2015        5/12/2015               22
     909-RC-150613                                      A         4/22/2015        5/20/2015               28
     909-RC-151309                                      A         4/30/2015        5/19/2015               19
    1010-RC-150042                                      A         4/14/2015         5/8/2015               24
    1110-RC-150582                                      A         4/22/2015        5/26/2015               34
    1110-RC-150835                                      A         4/24/2015        5/21/2015               27
    1110-RC-151143                                      A         4/29/2015        5/21/2015               22
    1212-RC-151061                                      A         4/28/2015        5/21/2015               23
    1313-RC-150912                                      A         4/27/2015        5/12/2015               15
    1313-RC-150917                                      A         4/27/2015        5/27/2015               30
    1714-RC-150243                                      A         4/16/2015         5/7/2015               21
    1414-RC-151115                                      A         4/29/2015        5/19/2015               20
    1414-RC-151350                                      A          5/1/2015        5/21/2015               20
    2615-RC-150292                                      A         4/16/2015        5/14/2015               28
    1515-RC-150893                                      A         4/27/2015        5/28/2015               31
    1515-RC-151118                                      A         4/29/2015        5/19/2015               20
    1616-RC-150207                                      A         4/16/2015         5/7/2015               21
    1616-RC-150508                                      A         4/21/2015        5/19/2015               28
    1616-RC-150834                                      A         4/24/2015        5/21/2015               27
    1616-RC-151211                                      A         4/30/2015        5/27/2015               27
    1616-RC-151317                                      A         4/30/2015        5/19/2015               19
                                                        A         4/23/2015        5/13/2015               20
                                                        B         4/23/2015        5/13/2015               20
    1818-RC-150800                                       C        4/23/2015        5/13/2015               20
    1818-RC-150846                                      A         4/24/2015        5/21/2015               27
    1818-RC-151161                                      A         4/29/2015        5/27/2015               28
    1818-RC-151725                                      A          5/6/2015        5/20/2015               14
    1818-UD-151274                                      A         4/30/2015        5/27/2015               27
    1919-RC-150145                                      A         4/14/2015        5/14/2015               30
    3619-RC-150163                                      A         4/15/2015        5/15/2015               30
    1919-RC-150189                                      A         4/15/2015        5/12/2015               27
                                                        A         4/21/2015        5/14/2015               23
    1919-RC-150515                                      B         4/21/2015        5/14/2015               23
    1919-RC-150769                                      A         4/23/2015        5/13/2015               20
    1919-RC-151030                                      A         4/27/2015         5/8/2015               11
    3619-RC-151686                                      A          5/6/2015        5/27/2015               21
    1919-RD-151173                                      A         4/29/2015        5/20/2015               21
    2020-RC-150652                                      A         4/22/2015        5/11/2015               19
    2121-RC-150874                                      A         4/24/2015        5/15/2015               21
    2121-RC-150980                                      A         4/27/2015        5/21/2015               24
    2222-RC-150289                                      A         4/17/2015        4/27/2015               10
    2222-RC-150630                                      A         4/22/2015        5/15/2015               23
    2222-RC-150700                                      A         4/23/2015        5/19/2015               26
    2222-RC-151333                                      A          5/1/2015        5/27/2015               26
    2222-RC-151421                                      A          5/1/2015        5/22/2015               21
    2525-RC-150488                                      A         4/21/2015        5/20/2015               29
    3325-RC-150678                                      A         4/22/2015        5/13/2015               21
    2828-RC-150167                                      A         4/15/2015         5/8/2015               23
    2828-RC-150168                                      A         4/15/2015         5/2/2015               17
    2828-RC-150855                                      A         4/24/2015        5/15/2015               21
    2828-RC-151070                                      A         4/28/2015        5/14/2015               16
    2828-RC-152225                                      A         5/14/2015        5/28/2015               14
    2929-RC-150499                                      A         4/21/2015         5/6/2015               15
    2929-RC-150622                                      A         4/22/2015        5/14/2015               22
    2929-RC-150681                                      A         4/23/2015        5/13/2015               20
    2929-RC-151196                                      A         4/29/2015        5/19/2015               20
    2929-RC-151310                                      A         4/30/2015        5/20/2015               20
    3131-RC-150220                                      A         4/15/2015        5/20/2015               35
    3131-RC-150568                                      A         4/21/2015        5/22/2015               31
    3232-RC-150090                                      A         4/14/2015         5/8/2015               24
    3232-RC-150360                                      A         4/17/2015        5/19/2015               32
    3232-RC-150861                                      A         4/24/2015        5/21/2015               27
    3232-RC-151435                                      A          5/1/2015        5/27/2015               26
----------------------------------------------------------------------------------------------------------------


                                UPCOMING ELECTIONS/RESULT DATA PENDING PROCESSING
----------------------------------------------------------------------------------------------------------------
                                                                                                   No. of Days
Region                  Case Number                    Unit      Date Filed     Election Held       Filing to
                                                                                     Date           Election
----------------------------------------------------------------------------------------------------------------
     101-RC-150713                                      A         4/23/2015        5/28/2015               35
     101-RC-150809                                      A         4/24/2015        5/22/2015               28
     101-RC-151218                                      A         4/30/2015        5/21/2015               21
     101-RC-151620                                      A          5/5/2015        5/29/2015               24
     101-RC-151899                                      A          5/8/2015         6/2/2015               25
     101-RC-152774                                      A         5/21/2015        6/18/2015               28
     202-RC-150504                                      A         4/21/2015        5/19/2015               28
     202-RC-151248                                      A         4/29/2015        5/19/2015               20
     202-RC-151250                                      A         4/29/2015        5/19/2015               20
     202-RC-151254                                      A         4/29/2015        5/19/2015               20
     202-RC-151256                                      A         4/29/2015        5/19/2015               20
     202-RC-151260                                      A         4/29/2015        5/19/2015               20
     202-RC-151262                                      A         4/29/2015        5/19/2015               20
     202-RC-151264                                      A         4/29/2015        5/19/2015               20
     202-RC-151269                                      A         4/29/2015        5/19/2015               20
     202-RC-151275                                      A         4/29/2015        5/19/2015               20
     202-RC-151277                                      A         4/29/2015        5/19/2015               20
     202-RC-151280                                      A         4/29/2015        5/19/2015               20
     202-RC-151283                                      A         4/29/2015        5/19/2015               20
     202-RC-151287                                      A         4/29/2015        5/19/2015               20
     202-RC-151289                                      A         4/29/2015        5/19/2015               20
     202-RC-151509                                      A          5/4/2015        5/29/2015               25
     202-RC-151774                                      A          5/7/2015        6/10/2015               34
     202-RC-151873                                      A          5/8/2015        6/11/2015               34
     202-RC-151977                                      A         5/11/2015         6/5/2015               25
     202-RC-152260                                      A         5/14/2015         6/9/2015               26
     202-RC-152307                                      A         5/14/2015        5/29/2015               15
     202-RC-152311                                      A         5/14/2015        5/29/2015               15
     202-RC-152315                                      A         5/14/2015        5/29/2015               15
     202-RC-152324                                      A         5/14/2015        5/29/2015               15
     202-RC-152328                                      A         5/14/2015        5/29/2015               15
     202-RC-152794                                      A         5/22/2015        6/11/2015               20
     202-RC-152988                                      A         5/27/2015        6/16/2015               20
     202-RC-153140                                      A         5/29/2015        6/18/2015               20
     303-RC-151634                                      A          5/6/2015         6/3/2015               28
     303-RC-151734                                      A          5/7/2015        6/10/2015               34
     303-RC-151849                                      A          5/8/2015         6/3/2015               26
     404-RC-150782                                      A         4/23/2015        5/18/2015               25
     404-RC-151815                                      A          5/8/2015         6/5/2015               28
     404-RC-152380                                      A         5/15/2015        6/12/2015               28
     404-RC-152418                                      A         5/18/2015         6/2/2015               15
     404-RC-152491                                      A         5/18/2015        6/12/2015               25
     505-RC-151107                                      A         4/27/2015        5/15/2015               18
     505-RC-151468                                      A          5/4/2015        5/26/2015               22
     505-RC-151470                                      A          5/4/2015        5/26/2015               22
     505-RC-151866                                      A          5/8/2015        5/20/2015               12
     505-RC-151933                                      A          5/8/2015        6/10/2015               33
     505-RC-151975                                      A         5/11/2015        6/15/2015               35
     505-RC-152880                                      A         5/26/2015        6/19/2015               24
     606-RC-151701                                      A          5/7/2015         6/5/2015               29
     606-RC-152112                                      A         5/13/2015         6/5/2015               23
     606-RC-152299                                      A         5/15/2015         6/3/2015               19
     606-RC-152300                                      A         5/15/2015         6/3/2015               19
     707-RC-151406                                      A          5/4/2015         6/5/2015               32
     707-RC-151697                                      A          5/6/2015        6/11/2015               36
     707-RC-152676                                      A         5/21/2015        6/19/2015               29
     808-RC-152337                                      A         5/15/2015        6/11/2015               27
     808-RC-152489                                      A         5/18/2015        6/16/2015               29
     909-RC-151181                                      A         4/29/2015         6/4/2015               36
     909-RC-152759                                      A         5/21/2015        6/18/2015               28
     909-RD-152544                                      A         5/19/2015        6/11/2015               23
     909-RD-152899                                      A         5/26/2015        6/17/2015               22
    1110-RC-150828                                      A         4/24/2015         6/1/2015               38
    1010-RC-151812                                      A          5/8/2015         6/5/2015               28
 26NAS10-RC-151941                                      A         5/11/2015        6/11/2015               31
    1010-RC-151942                                      A         5/11/2015        6/10/2015               30
    1110-RC-151954                                      A         5/11/2015        6/18/2015               38
    1010-RC-152420                                      A         5/18/2015        6/14/2015               27
    1110-RC-152911                                      A         5/26/2015        6/24/2015               29
    1010-RC-152954                                      A         5/26/2015        6/24/2015               29
    1110-RC-153364                                      A          6/1/2015        6/18/2015               17
    1212-RC-151666                                      A          5/6/2015         6/5/2015               30
    2412-RC-152435                                      A         5/18/2015        6/17/2015               30
    1212-RD-152062                                      A         5/12/2015         6/2/2015               21
    1212-RD-152150                                      A         5/13/2015        6/11/2015               29
    1313-RC-151747                                      A          5/7/2015         6/3/2015               27
    1313-RC-151943                                      A         5/11/2015         6/9/2015               29
    1313-RC-152029                                      A         5/12/2015         6/4/2015               23
    1313-RC-152584                                      A         5/20/2015        6/11/2015               22
    1313-RC-152961                                      A         5/27/2015         6/9/2015               13
    1714-RC-151485                                      A          5/4/2015        5/26/2015               22
    1714-RC-151535                                      A          5/5/2015        5/28/2015               23
    1714-RC-152208                                      A         5/14/2015         6/9/2015               26
    1414-RC-152209                                      A         5/14/2015        6/12/2015               29
    1414-RC-152597                                      A         5/20/2015        6/10/2015               21
    1515-RC-151772                                      A          5/7/2015        5/27/2015               20
    1616-RC-150545                                      A         4/21/2015        5/12/2015               21
    1616-RC-151853                                      A          5/8/2015         6/4/2015               27
    1616-RC-152504                                      A         5/18/2015        6/10/2015               23
    1616-RC-152831                                      A         5/22/2015        6/17/2015               26
    3018-RC-152189                                      A         5/13/2015         6/5/2015               23
    1818-RC-152558                                      A         5/19/2015         6/9/2015               21
    3018-RD-152017                                      A         5/12/2015         6/3/2015               22
    3619-RC-151976                                      A         5/11/2015         6/2/2015               22
    1919-RC-152006                                      A         5/11/2015         6/8/2015               28
    1919-RC-152056                                      A         5/11/2015        6/12/2015               32
    1919-RC-152188                                      A         5/12/2015         6/3/2015               22
    1919-RC-153166                                      A         5/28/2015         6/9/2015               12
    1919-RM-152841                                      A         5/21/2015        6/17/2015               27
    3720-RC-151684                                      A          5/6/2015        5/27/2015               21
    2020-RC-151884                                      A          5/8/2015         6/2/2015               25
    3720-RC-152268                                      A         5/14/2015        6/13/2015               30
    2020-RC-152357                                      A         5/15/2015         6/4/2015               20
    2020-RC-152837                                      A         5/22/2015        6/23/2015               32
    2121-RC-151499                                      A          5/4/2015        5/26/2015               22
    2121-RC-151906                                      A          5/8/2015        6/12/2015               35
    2121-RC-152158                                      A         5/13/2015        6/19/2015               37
    2121-RC-152279                                      A         5/14/2015         6/5/2015               22
    2121-RC-152782                                      A         5/21/2015        6/18/2015               28
    2222-RC-152085                                      A         5/13/2015         6/1/2015               19
    2222-RC-152243                                      A         5/13/2015        6/12/2015               30
    2222-RC-152670                                      A         5/20/2015        6/18/2015               29
    2222-RC-152994                                      A         5/27/2015         6/5/2015                9
    2222-RC-153040                                      A         5/27/2015        6/19/2015               23
    2222-RD-152244                                      A         5/14/2015         6/5/2015               22
    2525-RC-152157                                      A         5/13/2015        6/10/2015               28
    2525-RC-152622                                      A         5/20/2015        6/18/2015               29
    2525-RC-152894                                      A         5/26/2015        6/19/2015               24
    2727-RC-151076                                      A         4/28/2015        5/20/2015               22
    2727-RC-152884                                      A         5/26/2015        6/16/2015               21
    2828-RC-152165                                      A         5/13/2015         6/3/2015               21
    2828-RC-152340                                      A         5/15/2015         6/6/2015               22
    2929-RC-152044                                      A         5/12/2015         6/3/2015               22
    2929-RC-152688                                      A         5/21/2015        6/17/2015               27
    2929-RC-152739                                      A         5/21/2015         6/5/2015               15
    2929-RC-152972                                      A         5/27/2015        6/19/2015               23
    2929-RD-152140                                      A         5/13/2015        6/10/2015               28
    2929-UD-152042                                      A         5/12/2015         6/3/2015               22
    3131-RC-151985                                      A         5/11/2015         6/8/2015               28
    3131-RC-152471                                      A         5/18/2015        6/10/2015               23
    3232-RC-152365                                      A         5/15/2015        6/16/2015               32
    3232-RC-152621                                      A         5/20/2015        6/11/2015               22
    3232-RC-152968                                      A         5/26/2015        6/17/2015               22
    3232-RD-152636                                      A         5/20/2015        6/17/2015               28
----------------------------------------------------------------------------------------------------------------

    Question. Please provide election result data for all of the 
elections that have occurred based on petitions filed on or after April 
14, 2015.
    Answer. Please see the following table:


----------------------------------------------------------------------------------------------------------------
                                                            No. of
                                                             Days                  Direction
Region     Case Number     Unit   Date Filed    Election    Filing     Election   of Election   Election Result
                                               Held Date      to       Approved      Issued
                                                           Election
----------------------------------------------------------------------------------------------------------------
                           A     4/14/2015     5/8/2015        24    4/24/2015  ...........  .................
     101-RC-150106         B     4/14/2015     5/8/2015        24    4/24/2015  ...........  .................
    3401-RD-150609         A     4/22/2015    5/11/2015        19    4/29/2015  ...........  Certific. of
                                                                                              Representative
     202-RC-150235         A     4/16/2015    5/14/2015        28    4/30/2015  ...........  .................
     202-RC-150815         A     4/24/2015    5/21/2015        27    5/12/2015  ...........  Certific. of
                                                                                              Representative
     202-RC-151412         A      5/1/2015    5/27/2015        26    5/20/2015  ...........  .................
     202-RC-152009         A     5/11/2015    5/27/2015        16    5/20/2015  ...........  .................
     303-RC-150147         A     4/15/2015    5/11/2015        26    4/22/2015  ...........  .................
     303-RC-150811         A     4/24/2015    5/21/2015        27    4/30/2015  ...........  Certification of
                                                                                              Results
     303-RC-151272         A     4/30/2015    5/12/2015        12     5/4/2015  ...........  .................
     303-RC-151818         A      5/8/2015    5/28/2015        20    5/15/2015  ...........  .................
     404-RC-150059         A     4/14/2015     5/8/2015        24    4/21/2015  ...........  Certification of
                                                                                              Results
     404-RC-150177         A     4/16/2015     5/7/2015        21    4/23/2015  ...........  Certification of
                                                                                              Results
     404-RC-150307         A     4/17/2015     5/8/2015        21    4/24/2015  ...........  Certification of
                                                                                              Results
     404-RC-150728         A     4/23/2015    5/20/2015        27    4/29/2015  ...........  Certification of
                                                                                              Results
     404-RC-150790         A     4/24/2015    5/20/2015        26     5/1/2015  ...........  Certific. of
                                                                                              Representative
     404-RC-150899         A     4/24/2015    5/21/2015        27    4/30/2015  ...........  Certific. of
                                                                                              Representative
     404-RC-151199         A     4/30/2015    5/28/2015        28     5/7/2015  ...........  .................
     404-RC-151419         A      5/4/2015    5/14/2015        10     5/7/2015  ...........  Certification of
                                                                                              Results
     505-RC-150035         A     4/14/2015    5/13/2015        29    4/20/2015  ...........  Certification of
                                                                                              Results
     505-RC-150230         A     4/16/2015     5/7/2015        21    4/23/2015  ...........  Certification of
                                                                                              Results
     505-RC-150645         A     4/22/2015     5/6/2015        14    4/30/2015  ...........  Certific. of
                                                                                              Representative
     505-RC-150722         A     4/22/2015    5/14/2015        22     5/1/2015  ...........  Certific. of
                                                                                              Representative
     505-RC-151117         A     4/28/2015    5/29/2015        31     5/7/2015  ...........  .................
     505-RC-151753         A      5/7/2015    5/21/2015        14    5/15/2015  ...........  Certification of
                                                                                              Results
     606-RC-150296         A     4/17/2015    5/15/2015        28    4/24/2015  ...........  Certification of
                                                                                              Results
     606-RC-150368         A     4/20/2015    5/13/2015        23    4/24/2015  ...........  Certification of
                                                                                              Results
     606-RC-151386         A      5/1/2015    5/21/2015        20     5/8/2015  ...........  Certification of
                                                                                              Results
     707-RC-150061         A     4/14/2015     5/8/2015        24    4/21/2015  ...........  .................
     707-RC-150097         A     4/14/2015    5/14/2015        30  ...........     5/6/2015  .................
     707-RC-150286         A     4/17/2015    5/14/2015        27    4/24/2015  ...........  Certification of
                                                                                              Results
     707-RC-150703         A     4/23/2015    5/15/2015        22     5/6/2015  ...........  Certification of
                                                                                              Results
     808-RC-150027         A     4/14/2015    4/28/2015        14    4/22/2015  ...........  Certific. of
                                                                                              Representative
     808-RC-150541         A     4/21/2015    5/15/2015        24     5/1/2015  ...........  Certific. of
                                                                                              Representative
     808-RC-150682         A     4/23/2015    5/15/2015        22     5/1/2015  ...........  Certification of
                                                                                              Results
     909-RC-150405         A     4/20/2015    5/12/2015        22    4/28/2015  ...........  Certific. of
                                                                                              Representative
     909-RC-150613         A     4/22/2015    5/20/2015        28    4/28/2015  ...........  Certific. of
                                                                                              Representative
     909-RC-151309         A     4/30/2015    5/19/2015        19     5/6/2015  ...........  Certification of
                                                                                              Results
    1010-RC-150042         A     4/14/2015     5/8/2015        24    4/22/2015  ...........  .................
    1110-RC-150582         A     4/22/2015    5/26/2015        34    4/29/2015  ...........  .................
    1110-RC-150835         A     4/24/2015    5/21/2015        27     5/1/2015  ...........  Certific. of
                                                                                              Representative
    1110-RC-151143         A     4/29/2015    5/21/2015        22     5/6/2015  ...........  Certific. of
                                                                                              Representative
    1212-RC-151061         A     4/28/2015    5/21/2015        23     5/6/2015  ...........  .................
    1313-RC-150912         A     4/27/2015    5/12/2015        15     5/4/2015  ...........  Certific. of
                                                                                              Representative
    1313-RC-150917         A     4/27/2015    5/27/2015        30     5/4/2015  ...........  .................
    1313-UD-151151         A     4/29/2015    5/28/2015        29  ...........    5/13/2015  .................
    1714-RC-150243         A     4/16/2015     5/7/2015        21    4/24/2015  ...........  Certific. of
                                                                                              Representative
    1414-RC-151115         A     4/29/2015    5/19/2015        20     5/6/2015  ...........  .................
    1414-RC-151350         A      5/1/2015    5/21/2015        20     5/8/2015  ...........  Certification of
                                                                                              Results
    1414-RC-151446         A      5/4/2015    5/26/2015        22  ...........    5/18/2015  .................
    2615-RC-150292         A     4/16/2015    5/14/2015        28    4/24/2015  ...........  .................
    1515-RC-150893         A     4/27/2015    5/28/2015        31     5/6/2015  ...........  .................
    1515-RC-151118         A     4/29/2015    5/19/2015        20     5/6/2015  ...........  Certific. of
                                                                                              Representative
    1616-RC-150207         A     4/16/2015     5/7/2015        21    4/24/2015  ...........  Certific. of
                                                                                              Representative
    1616-RC-150508         A     4/21/2015    5/19/2015        28    4/28/2015  ...........  Certific. of
                                                                                              Representative
    1616-RC-150834         A     4/24/2015    5/21/2015        27     5/1/2015  ...........  Certific. of
                                                                                              Representative
    1616-RC-151211         A     4/30/2015    5/27/2015        27     5/7/2015  ...........  .................
    1616-RC-151317         A     4/30/2015    5/19/2015        19     5/8/2015  ...........  Certification of
                                                                                              Results
                           A     4/23/2015    5/13/2015        20     5/4/2015  ...........  .................
                           B     4/23/2015    5/13/2015        20     5/4/2015  ...........  .................
    1818-RC-150800          C    4/23/2015    5/13/2015        20     5/4/2015  ...........  .................
    1818-RC-150846         A     4/24/2015    5/21/2015        27     5/1/2015  ...........  Certific. of
                                                                                              Representative
    1818-RC-151161         A     4/29/2015    5/27/2015        28     5/6/2015  ...........  .................
    1818-RC-151725         A      5/6/2015    5/20/2015        14    5/11/2015  ...........  Certific. of
                                                                                              Representative
    1818-UD-151274         A     4/30/2015    5/27/2015        27     5/8/2015  ...........  .................
                                                                                             Certific. of
                                                                                              Representative
    1919-RC-150145         A     4/14/2015    5/14/2015        30    4/23/2015  ...........  Certific. of
                                                                                              Representative
    3619-RC-150163         A     4/15/2015    5/15/2015        30    4/23/2015  ...........  .................
    1919-RC-150189         A     4/15/2015    5/12/2015        27    4/23/2015  ...........  Certific. of
                                                                                              Representative
                           A     4/21/2015    5/14/2015        23    4/30/2015  ...........  .................
    1919-RC-150515         B     4/21/2015    5/14/2015        23    4/30/2015  ...........  .................
    1919-RC-150590         A     4/21/2015    5/19/2015        28  ...........     5/6/2015  Certific. of
                                                                                              Representative
    1919-RC-150769         A     4/23/2015    5/13/2015        20    4/30/2015  ...........  Certific. of
                                                                                              Representative
    1919-RC-151030         A     4/27/2015     5/8/2015        11     5/4/2015  ...........  Certification of
                                                                                              Results
    3619-RC-151686         A      5/6/2015    5/27/2015        21    5/12/2015  ...........  .................
    1919-RD-151173         A     4/29/2015    5/20/2015        21     5/5/2015  ...........  Certific. of
                                                                                              Representative
    2020-RC-150652         A     4/22/2015    5/11/2015        19    4/30/2015  ...........  Certification of
                                                                                              Results
    2121-RC-150214         A     4/15/2015     5/8/2015        23  ...........     5/4/2015  Certification of
                                                                                              Results
    2121-RC-150242         A     4/15/2015     5/8/2015        23  ...........     5/4/2015  Certification of
                                                                                              Results
    2121-RC-150749         A     4/23/2015    5/27/2015        34  ...........    5/20/2015  .................
    2121-RC-150874         A     4/24/2015    5/15/2015        21    4/30/2015  ...........  Certific. of
                                                                                              Representative
    2121-RC-150980         A     4/27/2015    5/21/2015        24     5/4/2015  ...........  Certific. of
                                                                                              Representative
    2222-RC-150289         A     4/17/2015    4/27/2015        10    4/21/2015  ...........  Certific. of
                                                                                              Representative
    2222-RC-150630         A     4/22/2015    5/15/2015        23    4/30/2015  ...........  Certification of
                                                                                              Results
    2222-RC-150700         A     4/23/2015    5/19/2015        26     5/7/2015  ...........  Certific. of
                                                                                              Representative
    2222-RC-151333         A      5/1/2015    5/27/2015        26    5/11/2015  ...........  .................
    2222-RC-151421         A      5/1/2015    5/22/2015        21    5/12/2015  ...........  Certification of
                                                                                              Results
    2525-RC-150488         A     4/21/2015    5/20/2015        29    4/27/2015  ...........  .................
    3325-RC-150678         A     4/22/2015    5/13/2015        21    4/30/2015  ...........  Certific. of
                                                                                              Representative
    2828-RC-150167         A     4/15/2015     5/8/2015        23    4/22/2015  ...........  .................
    2828-RC-150168         A     4/15/2015     5/2/2015        17    4/24/2015  ...........  .................
    2828-RC-150855         A     4/24/2015    5/15/2015        21     5/1/2015  ...........  Certific. of
                                                                                              Representative
    2828-RC-151070         A     4/28/2015    5/14/2015        16     5/6/2015  ...........  Certific. of
                                                                                              Representative
    2828-RC-152225         A     5/14/2015    5/28/2015        14    5/20/2015  ...........  .................
    2929-RC-150499         A     4/21/2015     5/6/2015        15    4/28/2015  ...........  Certification of
                                                                                              Results
    2929-RC-150622         A     4/22/2015    5/14/2015        22    4/30/2015  ...........  .................
    2929-RC-150681         A     4/23/2015    5/13/2015        20    4/29/2015  ...........  Certific. of
                                                                                              Representative
    2929-RC-151196         A     4/29/2015    5/19/2015        20     5/8/2015  ...........  Certific. of
                                                                                              Representative
    2929-RC-151310         A     4/30/2015    5/20/2015        20     5/8/2015  ...........  Certific. of
                                                                                              Representative
    3131-RC-150220         A     4/15/2015    5/20/2015        35    4/23/2015  ...........  Certific. of
                                                                                              Representative
    3131-RC-150568         A     4/21/2015    5/22/2015        31    4/29/2015  ...........  .................
    3232-RC-150090         A     4/14/2015     5/8/2015        24    4/20/2015  ...........  .................
    3232-RC-150360         A     4/17/2015    5/19/2015        32    4/24/2015  ...........  Certific. of
                                                                                              Representative
    3232-RC-150861         A     4/24/2015    5/21/2015        27     5/1/2015  ...........  Certification of
                                                                                              Results
    3232-RC-151435         A      5/1/2015    5/27/2015        26    5/11/2015  ...........  .................
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 
                Questions Submitted by Senator Mark Kirk
    Question. Under the Board's rule governing the processing of 
representation petition that went into effect on April 14 of this year, 
employers are required to furnish employee names, personal telephone 
numbers, personal email address, job classification, shift times, in 
addition to mailing address within 2 days following direction of 
election. These so-called `Excelsior lists' are required without 
significant direction on how the Union may use the contact information 
following the election. The Board itself has said that ``it would not 
be appropriate at this time to specify a remedy, or set of remedies, 
that would be appropriate in all situations.'' Can you expand on why it 
would not be appropriate to provide clarity on this issue at this time? 
Would you agree that this lack of clearly outlined repercussions for 
unions violating the privacy rights of workers might lead to more 
instances of improper use or sale of the personal data than would occur 
in the presence of clearly defined punishments?
    Answer. The amended rule explicitly prohibits use of the Excelsior 
list ``for purposes other than the representation proceeding, Board 
proceedings arising from it, and related matters.'' The rule leaves the 
question of remedies for case-by-case adjudication; thus, in the event 
of a violation, the Board is not limited by the rule as to the remedy 
it may impose. This is the same approach that the Board has taken with 
the preexisting Excelsior rule. The rulemaking record shows not a 
single instance of voter list misuse during the nearly 50-year 
existence of the original rule. I am hopeful that the next 50 years 
will be similarly free of misuse, but I am committed to dealing with 
any violation that might occur in a firm and appropriate manner.
    Question. Illinois has over 36,000 franchise establishments, and 
franchise businesses employ over 400,000 people in Illinois. Illinois-
based franchisors include Bottle & Bottega, BrightStar Care, and Moran 
Industries. With so many Illinoisans having invested their blood, 
sweat, and tears into establishing and operating small businesses using 
the franchise model, it concerns me that the Board has chosen not to go 
through the formal rule-making process established in the 
Administrative Procedure Act and the Regulatory Flexibility Act. 
Shouldn't small business owners in Illinois be afforded the opportunity 
to provide input on an issue so central to their livelihoods? Why is it 
that the Board has chosen to issue this new joint employer standard 
outside of the formal process, which the Board used in the recent rule-
making on Representation Case Procedures?
    Answer. In the Browning Ferris case, the parties placed before the 
Board the issue whether Browning Ferris Industries and a contractor it 
engaged to provide labor at a recycling facility were joint employers. 
The case does not involve a franchise arrangement, but nevertheless 
presents an important legal issue. In order to obtain the benefit of as 
many different views concerning this issue as possible, the Board 
issued a public invitation and press release seeking the input of all 
persons and entities having an interest in the issue. Historically, the 
Board has decided cases addressing this and similar issues without 
inviting input from nonparties. The Board has never used rulemaking to 
address this or similar issues. However, it has used rulemaking dozens 
of times to amend its procedural rules.
                                 ______
                                 
             Questions Submitted by Senator James Lankford
    Question. In an age where identity theft is a significant risk, I 
have serious concerns about the lack of privacy protection for 
employees' personal information in the Board's ambush election Final 
Rule (79 FR 74307). Under the Rule, petitioners may gain access to the 
email addresses, cell phone numbers, shift hours, and locations. 
However, the Final Rule does not comment on how this information should 
be stored or safeguarded. Additionally, the Rule outright rejects the 
ability of employees to opt out of having their personal information 
turned over to a union. Please respond to the following:
    What guidance will the Board provide to petitioners on the 
appropriate storage and protection of employees' private information? 
If the Board will not issue guidance, please explain why not.
    Answer. The rule does not require employers to turn over any 
information that they do not already have in their possession. The rule 
does not impose on employers any specific requirements for the storage 
and security of that information. The rule likewise does not impose on 
petitioners specific requirements for the storage and security of that 
information after it has been turned over by employers. However, it 
explicitly prohibits use of the Excelsior lists ``for purposes other 
than the representation proceeding, Board proceedings arising from it, 
and related matters.'' The rule leaves the question of remedies for 
case-by-case adjudication; thus, in the event of a violation, the Board 
is not limited by the rule as to the remedy it may impose. This is the 
same approach that the Board has taken with the pre-existing Excelsior 
rule. The rulemaking record does not include a single instance of voter 
list misuse, involving identity theft or otherwise, during the nearly 
50-year existence of the original rule. I am hopeful that the next 50 
years will be similarly free of misuse, but I am committed to dealing 
with any violation that might occur in a firm and appropriate manner. 
The Board is not presently considering further rulemaking on the 
subject.
    Question. Has the Board issued guidance to petitioners on 
appropriate and timely notification to employees whose personal 
information is compromised while in the custody of a petitioner? If 
not, why not?
    Answer. As noted above, the rule leaves the question of remedies 
for the case-by-case adjudication, and nothing prevents the Board from 
deciding that a petitioner be required to notify employees in the event 
that their personal information is compromised.
    Question. I also have serious concerns about the NLRB's 
consideration of changes to the joint employer standard. According to 
the Chamber of Commerce, 89 percent of employers in the United States 
have fewer than 20 employees. Small businesses spend 36 percent more 
per employee for regulatory compliance than do larger businesses. 
Franchising and subcontracting, as a result, help entrepreneurs 
specialize, become more efficient businessmen and women, and lower 
barriers to entry. Franchised establishments generated nearly 8.5 
million direct jobs and $844 billion of output in 2014. Given that a 
change in the joint employer standard is expected to create significant 
chaos for franchisees, increase their regulatory burden and associated 
costs, and may make hiring more difficult, what steps will the Board 
take to provide clear and timely guidance to employers when a decision 
is reached in the joint employer case?
    Answer. In the Browning Ferris case, the parties placed before the 
Board the issue whether Browning Ferris Industries and a contractor it 
engaged to provide labor at a recycling facility were joint employers. 
The case does not involve a franchise arrangement, but nevertheless 
presents an important legal issue, on which the Board has invited broad 
public input. The case is presently pending before the Board. When the 
Board decides a case, the published decision typically constitutes the 
Board's guidance to the public. In the relatively unusual event of a 
decision that announces a significant change in Board law, the General 
Counsel often issues a guideline memo explaining how he will apply the 
decision, if such guidance would be helpful to the public and the 
Board's field offices.
    Question. Regarding the recent Freshii advice memo dated April 28, 
2015, in which the Board held that franchisor Freshii is not liable as 
a ``joint employer,'' please answer the following:
    Did you review the memo by Assistant General Counsel Kearney and 
approve it?
    Answer. Yes, I did review and approve the Freshii Advice memo.
    Question. What factual differences are there in the McDonald's case 
and those described in the memo?
    Answer. As the McDonald's case is currently being litigated, I do 
not feel it is appropriate for me to discuss the specific facts of that 
matter. However, as noted previously, we do believe that we have facts 
sufficient to lead to a finding that McDonald's is a joint employer 
under the current Board standard articulated as recently as September 
2014 in the CNN America Inc. & Team Video Services LLC case.
    Question. The memo is helpful in detailing what a franchisor and 
franchise can do to avoid joint employment findings. Will the General 
Counsel's office release a memo detailing what they should not do?
    Answer. Thank you for your acknowledgement of the usefulness of the 
Advice memo in providing guidance to the public. There is no plan to 
release a memo detailing what franchisors and franchisees should not do 
since the joint employer relationship comes up in a variety of 
contexts, not just the franchise model. I commend you to our public 
website where there are a number of Advice memos, as well as Board 
decisions, regarding cases with joint employer allegations.
    Question. Will you reconsider releasing your advice memo regarding 
the McDonald's case?
    Answer. The Office of the General Counsel does not release our work 
product during the pendency of a meritorious case. Thus, as the 
McDonald's matter is still an open matter that is currently being 
litigated, we will not be releasing the related Advice memo in the near 
future.
    Question. What costs have been incurred so far in the McDonald's 
case? How many Board personnel are devoted to it? Do you have a total 
budget for the case? Is it fair to say that the prosecution of 
McDonald's case will cost the taxpayers millions of dollars?
    Answer. As to the consolidated complaint issued against McDonald's, 
this is currently being litigated. We do not currently have a job 
costing system in place for incurred costs regarding this or any other 
particular matter. While I am certainly willing to provide an estimate 
of the costs by reviewing the number of board agents involved in the 
litigation to date, it will be an estimate as those same board agents 
have also handled other cases as well during the relevant period. There 
are currently three full-time and two part-time board agents devoted 
exclusively to the McDonald's litigation in New York.
    Question. If the NLRB adopts a new definition of joint employer in 
Browning Ferris or any other case, will the Board use that standard in 
the franchise context? Stated differently, just because your office 
concludes that under an expansive definition of joint employer as urged 
by you in your amicus in Browning Ferris there is no joint employment 
in the case reviewed in the April 28 Freshii advice memo, that is not a 
guarantee the Board will agree with you, correct?
    Answer. You are correct that there is no guarantee that the Board 
will agree with my position regarding the joint employer standard as 
urged in the Browning Ferris Industries brief.

                          SUBCOMMITTEE RECESS

    Senator Blunt. Thank you both for your time today. We will 
leave the record open for one week for additional questions.
    Senator Blunt. The subcommittee stands in recess.
    [Whereupon, at 11:26 a.m., Thursday, May 14, 2015, the 
subcommittee was recessed, to reconvene subject to the call of 
the Chair.]