[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




 
                  LEGISLATIVE REFORMS TO THE NATIONAL
                          LABOR RELATIONS ACT:
            H.R. 2776, WORKFORCE DEMOCRACY AND FAIRNESS ACT;
              H.R. 2775, EMPLOYEE PRIVACY PROTECTION ACT;
                  AND, H.R. 2723, EMPLOYEE RIGHTS ACT

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

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                    EMPLOYMENT, LABOR, AND PENSIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JUNE 14, 2017

                               __________

                           Serial No. 115-18

                               __________

  Printed for the use of the Committee on Education and the Workforce
  
  
  
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]  
  


           Available via the World Wide Web: www.govinfo.gov
                                   or
            Committee address: http://edworkforce.house.gov
            
            
            
                         _________

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
25-712 PDF               WASHINGTON : 2019                 
            
            
            
                COMMITTEE ON EDUCATION AND THE WORKFORCE

               VIRGINIA FOXX, North Carolina, Chairwoman

Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Duncan Hunter, California                Virginia
David P. Roe, Tennessee              Ranking Member
Glenn ``GT'' Thompson, Pennsylvania  Susan A. Davis, California
Tim Walberg, Michigan                Raul M. Grijalva, Arizona
Brett Guthrie, Kentucky              Joe Courtney, Connecticut
Todd Rokita, Indiana                 Marcia L. Fudge, Ohio
Lou Barletta, Pennsylvania           Jared Polis, Colorado
Luke Messer, Indiana                 Gregorio Kilili Camacho Sablan,
Bradley Byrne, Alabama                 Northern Mariana Islands
David Brat, Virginia                 Frederica S. Wilson, Florida
Glenn Grothman, Wisconsin            Suzanne Bonamici, Oregon
Elise Stefanik, New York             Mark Takano, California
Rick W. Allen, Georgia               Alma S. Adams, North Carolina
Jason Lewis, Minnesota               Mark DeSaulnier, California
Francis Rooney, Florida              Donald Norcross, New Jersey
Paul Mitchell, Michigan              Lisa Blunt Rochester, Delaware
Tom Garrett, Jr., Virginia           Raja Krishnamoorthi, Illinois
Lloyd K. Smucker, Pennsylvania       Carol Shea-Porter, New Hampshire
A. Drew Ferguson, IV, Georgia        Adriano Espaillat, New York
Ron Estes, Kansas

                      Brandon Renz, Staff Director
                 Denise Forte, Minority Staff Director
                                 ------                                

        SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS

                    TIM WALBERG, Michigan, Chairman

Joe Wilson, South Carolina           Gregorio Kilili Camacho Sablan,
David P. Roe, Tennessee                Northern Mariana Islands
Todd Rokita, Indiana                   Ranking Member
Lou Barletta, Pennsylvania           Frederica S. Wilson, Florida
Rick W. Allen, Georgia               Donald Norcross, New Jersey
Jason Lewis, Minnesota               Lisa Blunt Rochester, Delaware
Francis Rooney, Florida              Carol Shea-Porter, New Hampshire
Paul Mitchell, Michigan              Adriano Espaillat, New York
Lloyd K. Smucker, Pennsylvania       Joe Courtney, Connecticut
A. Drew Ferguson, IV, Georgia        Marcia L. Fudge, Ohio
Ron Estes, Kansas                    Suzanne Bonamici, Oregon

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 14, 2017....................................     1

Statement of Members:
    Sablan, Hon. Gregorio Kilili Camacho, Ranking Member, 
      Subcommittee on Health, Employment, Labor, and Pensions....     6
        Prepared statement of....................................     9
    Walberg, Hon. Tim, Chairman, Subcommittee on Health, 
      Employment, Labor, and Pensions............................     1
        Prepared statement of....................................     5

Statement of Witnesses:
    Borden, Mr. Seth H., Partner, McGuirewoods LLP, New York, New 
      York.......................................................    42
        Prepared statement of....................................    44
    Calemine, Mr. Guerino J., III, General Counsel, 
      Communications Workers of America, Washington, DC..........    26
        Prepared statement of....................................    28
    Cox, Ms. Karen, Dixon, Illinois..............................    21
        Prepared statement of....................................    23
    McKeague, Ms. Nancy, Senior Vice President and Chief of 
      Staff, Michigan Health and Hospital Association, Okemos, 
      Michigan...................................................    11
        Prepared statement of....................................    14

Additional Submissions:
    Mr. Sablan:
        Article: Time Is On Your Side............................     8
        RWDSU, UFCW membership form..............................    75
        Letter dated June 14, 2017, from United Food and 
          Commercial Workers International Union (UFCW)..........    77
        Graph: Percentage of wage and salary workers who were 
          members of unions, total and private sector, 1983-2016.    80
        Press Release: New Illinois Members at Americold Win 
          First Contract.........................................    82
        Letter dated June 13, 2017, from SEIU....................    86
    Chairman Walberg:
        Letter dated June 13, 2017, from the National Retail 
          Federation (NFR).......................................    89
        Letter dated June 14, 2017, from the Retail Industry 
          Leaders Association (RILA).............................    90
        Letter dated June 13, 2017, from the Associated Builders 
          and Contractors, Inc. (ABC)............................    92
        Americans for Tax Reform and The Center for Worker 
          Freedom Support The Employee Rights Act (ERA)..........    93
        Prepared statement of Professional Janitorial Service 
          (PJS)..................................................    94
        Heritage Action Supports Rep. Phil Roes's Employee Rights 
          Act....................................................    97
        Letter dated June 14, 2017, from the Workforce Fairness 
          Institute..............................................    99
        Letter dated June 14, 2017, from the Workforce Fairness 
          Institute..............................................   101
        Prepared statement of the Independent Electrical 
          Contractors............................................   103


                  LEGISLATIVE REFORMS TO THE NATIONAL

                          LABOR RELATIONS ACT:

                   H.R. 2776, WORKFORCE DEMOCRACY AND
                   
                             FAIRNESS ACT;


                      H.R. 2775, EMPLOYEE PRIVACY


                          PROTECTION ACT; AND,


                     H.R. 2723, EMPLOYEE RIGHTS ACT

                              ----------                              


                        Wednesday, June 14, 2017

                       House of Representatives,

                        Subcommittee on Health,

                    Employment, Labor, and Pensions,

               Committee on Education and the Workforce,

                            Washington, D.C.

                              ----------                              

    The subcommittee met, pursuant to call, at 1:01 p.m., in 
Room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Wilson of South Carolina, 
Roe, Allen, Lewis, Mitchell, Smucker, Ferguson, Estes, Sablan, 
Norcross, Espaillat, and Courtney.
    Also Present: Representatives Foxx and Scott.
    Staff Present: Bethany Aronhalt, Press Secretary; Andrew 
Banducci, Workforce Policy Counsel; Courtney Butcher, Director 
of Member Services and Coalitions; Ed Gilroy, Director of 
Workforce Policy; Jessica Goodman, Legislative Assistant; 
Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk; 
Geoffrey MacLeay, Professional Staff Member; John Martin, 
Professional Staff Member; James Mullen, Director of 
Information Technology; Alexis Murray, Professional Staff 
Member; Krisann Pearce, General Counsel; Lauren Reddington, 
Deputy Press Secretary; Brandon Renz, Staff Director; Joseph 
Wheeler, Professional Staff Member; Tylease Alli, Minority 
Clerk/Intern, Fellow Coordinator; Kyle deCant, Minority Labor 
Policy Counsel; Christine Godinez, Minority Staff Assistant; 
Stephanie Lalle, Minority Press Assistant; Kevin McDermott, 
Minority Senior Labor Policy Advisor; Richard Miller, Minority 
Senior Labor Policy Advisor; Udochi Onwubiko, Minority Labor 
Policy Counsel; and Veronique Pluviose, Minority General 
Counsel.
    Chairman Walberg. A quorum being present, the Subcommittee 
on Health, Employment, Labor, and Pensions will come to order.
    Before we move into the subject of today's hearing, I want 
to start by saying, I wish this morning would have started 
differently. Many of us are still processing the tragic events 
that have occurred this morning, and I know that our thoughts 
and prayers are focused on friends in the hospital at this 
moment, including a former staffer of mine, graduate of Adrian 
College, Adrian, Michigan, my home county, and a young man who 
became like a third son to Sue, my wife, and myself, who is in 
surgery at this time and in very grave condition.
    It's very hard to imagine that such a tragedy could have 
occurred while our colleagues were doing something as simple as 
practicing for a charity baseball game before they came to 
work. The horrific events of this morning have made us all 
pause and give thanks for the brave men and women of the 
Capitol Police who serve and protect us all, whether Members of 
Congress, whether staff members or visitors to this great 
institution of democracy.
    As well as giving thanks for a strong Capitol Hill 
community, with friends and family who have rallied together in 
support of those who have been impacted by the events of this 
morning. Members of this Capitol Hill community are here 
because they are answering a call, a call to serve the American 
people, and the best way we can help those impacted by the 
events of this morning is by continuing to serve our fellow 
citizens.
    Additionally, I want to thank our witnesses, the audience 
members, and fellow members of the committee for their 
cooperation with the rescheduling of our hearing, which 
undoubtedly has caused some disruption of plans.
    I will come back to my opening comments following some 
other comments that will be made by my colleagues here. But I 
would also like to do something, and I just request, with all 
due respect, of my colleagues that you would allow me, as a 
Christian -- and I certainly respect all faiths, but as a 
Christian, I believe in power of prayer. And it's not normal 
that we open our committee hearings in prayer, but I would like 
to do that this afternoon.
    Father, we don't come to You just in a moment of silence. 
We come to You as a loving God who hurts when Your created 
beings go through challenging, difficult, painful 
circumstances, and ultimately circumstances that indicate there 
is still evil.
    So, today, even before we carry on with the business that 
we have been sent here to do, we call upon You to address these 
very unique concerns, thinking of the Capitol Police personnel, 
Matt Mika, and Steve Scalise, who are all in various processes 
of having their wounds, their injuries, the life-threatening 
things cared for.
    We ask that You would protect them, that You would sustain 
them, and that You would heal them, that You'd be with their 
families, families who are hurting and worried and concerned, 
families who have this impact upon their lives for days, weeks, 
maybe years to come. We ask that You would sustain them and, 
for the community here in this Capitol, that You would 
undertake for needs as well.
    Lord, we pray as well that You would restore our country, 
that You would heal our divides, that You would bring us 
together, and that You'd create a Nation indivisible with 
liberty, justice for all. I thank You that You can hear and 
answer those prayers. And it's in the name of Jesus I pray. 
Amen.
    I would now yield to my friend and colleague, the ranking 
member, Mr. Sablan, for your comments.
    Mr. Sablan. Thank you very much, Chairman Walberg.
    I know that words are insufficient at this time, and I can 
only imagine how you feel when you found out that Matt, one of 
your former staff, was wounded this morning. I was horrified 
also when Seth came to pick me up, give me a ride to a meeting 
we had that one of our own colleagues, staff and former -- and 
Capitol Hill Police officers were in an accident -- were 
shooting victims in a practice for tomorrow's game. My heart 
goes out to the families. My prayers go out to Steve, 
Congressman Scalise, the staff, the Capitol Police, their 
families, and all of those affected by this morning's horrible 
event.
    And just as Speaker Ryan said earlier today, when one is 
attacked, we are all attacked. I pray that there's no more such 
incidents in the future.
    But for you, Mr. Chairman, I know this is also personal, 
and I'll keep you in my prayers as well.
    I yield back.
    Chairman Walberg. I thank the gentleman.
    Now, I'd like to recognize the ranking member of the full 
committee, Mr. Scott, for any comments on this morning that you 
will like to share.
    Mr. Scott. Thank you, Mr. Chairman, and thank you for the 
opportunity to speak briefly about this morning's shooting in 
Alexandria.
    Like you, I was shocked and saddened to learn of what 
happened this morning to our colleagues gathered to practice 
for the annual Congressional Baseball Game. Our thoughts and 
prayers are with Majority Whip Scalise, Zach Barth, Congressman 
Roger Williams' staff, and your former staffer, Matt Mika, now 
with Tyson Foods, also, the two Capitol Police officers who 
heroically intervened and were shot while responding to this 
incident, and, of course, to all of their families. I remain 
hopeful that each of the victims will recover.
    Mr. Chairman, violence has no role in our political 
discourse. While we have disagreements over policies and 
sometimes get in heated debates, each of us and our staffs are 
motivated by a shared common principle: It is love for our 
country and the desire to make the lives of the people we 
represent better. I've seen that every day that I've had the 
honor and privilege to serve in this Chamber, and I wish the 
American people could actually see firsthand the close, 
bipartisan friendships that are developed here.
    It's my understanding that the Congressional Baseball Game 
will go on as planned tomorrow evening. That's great news. This 
annual event has always been an opportunity for Democrats and 
Republicans to come together for a friendly game of baseball 
while raising money for local charities.
    This moment of levity in Washington is always needed, but 
certainly now more than ever.
    So I thank you, Mr. Chairman. I yield back.
    Chairman Walberg. I thank the gentleman.
    And you're absolutely right, and that's why this hearing is 
going on as well. We will not have evil stop us from doing our 
business we've been called to do.
    And, Bobby, I hope you noticed: I didn't pray for victory 
for the Republican side tomorrow. We won last year, but it has 
been a long time coming. So we'll see what happens tomorrow 
evening. But I think we'll all win by playing the game, 
absolutely.
    Well, this brings us to our hearing this morning, as we 
work to address pressing issues that impact hard-working 
Americans. And I recognize myself for an opening statement.
    Our first subcommittee hearing of the 115th Congress was 
focused on the need to restore balance and fairness to federal 
labor policies. This has long been a priority for House 
Republicans, and today, we are taking the next step in our 
efforts.
    The National Labor Relations Act was signed into law more 
than 80 years ago to protect the rights of workers in union 
elections. Congress understood workers deserve the opportunity 
to make informed decisions on union-related matters and that 
employers deserve a level playing field with labor leaders.
    The NLRA established important protections. It also created 
a neutral arbiter, the National Labor Relations Board, to serve 
as a fair and objective referee over labor disputes. But that 
certainly has not been the NLRB we've come to know, I believe, 
in recent years. Instead, over the last eight years, the Board 
launched an activist agenda aimed at tilting the balance of 
power toward powerful special interests. Unfortunately, it came 
at the expense of the hard-working men and women who keep our 
economy moving.
    Decision after decision by the NLRB restricted the rights 
of workers and employers. Make no mistake: both Republicans and 
Democrats respect the right of workers to join a union. I was a 
union worker. But workers also deserve the right to make a free 
and informed decision in that matter. That means workers should 
have the chance to hear from both sides of the debate, and I 
hope we can all agree workers deserve to make a decision in an 
environment free of threats, coercion, or intimidation.
    However, the NLRB's actions over the years sent a different 
message. For example, in 2015, the Board implemented a rule 
designed to rush employees into union elections. The Board 
dictated that workers should only be afforded as few as 11 days 
to make a decision on whether or not to join a union. That's 
roughly a week and a half to consider all the facts and 
consequences before casting a vote on a personal issue that 
directly impacts on employees' job and paycheck and future.
    Meanwhile, employers were given just seven days to find 
legal counsel and prepare their entire case before the NLRB 
hearing officer. That's nearly impossible for most employers, 
let alone a small-business owner.
    With such a short timeframe, employers hardly have a chance 
to communicate with their employees. But limiting debate and 
stifling employer free speech for the sake of speeding up union 
elections was precisely what the Board had in mind, I believe. 
It's no surprise that union elections have been organized 38 
percent faster since this new rule took effect.
    To make matters worse, the rule jeopardized the privacy of 
workers and their families. The NLRB forced employers to hand 
over the private information of their employees to union 
organizers, including home addresses, phone numbers, email 
addresses, work locations, and work schedules.
    At the same time, workers and employers have been hit with 
a micro-union scheme that empowered union leaders to 
gerrymander the workplace. This new standard has created 
division in workplaces across the country, buried small 
business in red tape, and undermined job creation.
    It's long past time to put an end to these misguided 
policies. That's why I was proud to introduce the Workforce 
Democracy and Fairness Act to restore the rights of workers and 
employers in union elections.
    My colleague, Representative Joe Wilson, has also 
introduced the Employee Privacy Protection Act. This important 
legislation will safeguard the privacy of America's workers and 
give them greater control over their personal information.
    In addition, Dr. Phil Roe introduced the Employee Rights 
Act to ensure workers aren't stuck in unions they no longer 
support. The bill would modernize the union election process, 
require periodic union recertification elections, and give 
workers more control over how their union dues are spent.
    These are all commonsense proposals that will protect the 
rights of workers and restore balance and fairness to the rules 
governing union elections. I hope we can have a thoughtful 
discussion as we review these positive reforms.
    And I will now yield to Ranking Member Sablan for his 
opening remarks.
    [The statement of Chairman Walberg follows:]

   Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    Our first subcommittee hearing of the 115th Congress was focused on 
the need to restore balance and fairness to federal labor policies. 
This has long been a priority for House Republicans, and today, we are 
taking the next step in our efforts.
    The National Labor Relations Act was signed into law more than 80 
years ago to protect the rights of workers in union elections. Congress 
understood workers deserve the opportunity to make fully informed 
decisions on union-related matters, and that employers deserve a level 
playing field with labor leaders.
    The NLRA established important protections. It also created a 
neutral arbiter--the National Labor Relations Board--to serve as a fair 
and objective referee over labor disputes.
    But that's certainly not the NLRB we've come to know in recent 
years. Instead, over the last eight years, the board launched an 
activist agenda aimed at tilting the balance of power toward powerful 
special interests.
    Unfortunately, it came at the expense of the hardworking men and 
women who keep our economy moving. Decision after decision by the NLRB 
restricted the rights of workers and employers.
    Make no mistake; both Republicans and Democrats respect the right 
of workers to join a union. But workers also deserve the right to make 
a free and informed decision in the matter.
    That means workers should have the chance to hear from both sides 
of the debate. And I hope we can all agree workers deserve to make a 
decision in an environment free of threats, coercion, or intimidation.
    However, the NLRB's actions over the years sent a different 
message. For example, in 2015, the board implemented a rule designed to 
rush employees into union elections.
    The board dictated that workers should only be afforded as few as 
11 days to make a decision on whether or not to join a union. That's 
roughly a week and a half to consider all the facts and consequences 
before casting a vote on a personal issue that directly impacts an 
employee's job and paycheck.
    Meanwhile, employers were given just seven days to find legal 
counsel and prepare their entire case before an NLRB hearing officer. 
That's nearly impossible for most employers, let alone a small business 
owner.
    With such a short time frame, employers hardly have a chance to 
communicate with their employees. But limiting debate and stifling 
employer free speech for the sake of speeding up union elections was 
precisely what the board had in mind. It's no surprise that union 
elections have been organized 38 percent faster since this new rule 
took effect.
    To make matters worse, the rule jeopardized the privacy of workers 
and their families. The NLRB forced employers to hand over the private 
information of their employees to union organizers, including home 
addresses, phone numbers, email addresses, work locations, and work 
schedules.
    At the same time, workers and employers have been hit with a micro-
union scheme that empowered union leaders to gerrymander the workplace. 
This new standard has created division in workplaces across the 
country, buried small businesses in red tape, and undermined job 
creation.
    It's long past time to put an end to these misguided policies. 
That's why I was proud to introduce the Workforce Democracy and 
Fairness Act to restore the rights of workers and employers in union 
elections.
    My colleague Representative Joe Wilson has also introduced the 
Employee Privacy Protection Act. This important legislation will 
safeguard the privacy of America's workers and give them greater 
control over their personal information.
    In addition, Dr. Phil Roe introduced the Employee Rights Act to 
ensure workers aren't stuck in unions they no longer support. The bill 
would modernize the union election process, require periodic union-
recertification elections, and give workers more control over how their 
union dues are spent.
    These are all commonsense proposals that will protect the rights of 
workers and restore balance and fairness to the rules governing union 
elections.
                                 ______
                                 
    Mr. Sablan. Thank you, Chairman Walberg, for holding this 
hearing today. I thank and welcome all the witnesses also for 
being here with us today.
    At my first hearing as ranking member of this subcommittee, 
I stated that the purpose of the National Labor Relations Act 
was to strengthen unions as an institution in our economy to 
ensure that wealth is more fairly shared.
    When working Americans are empowered to collectively 
bargain with their employers over wages and conditions of 
employment, productivity gains can be linked to wage growth. 
However, the three bills under consideration today sabotage 
workers' ability to organize and collectively bargain for a 
better life.
    Make no mistake about it, taken together, these bills are 
not just union-busting bills; they're union elimination bills. 
Workers should have a right to a fair union election. In any 
normal election, you have to win a majority of those voting to 
win.
    H.R. 2723 would require the union to win a majority of all 
eligible voters. This means that every person who does not vote 
is counted as a ``no'' vote against a union. And my colleagues 
all know that this is now how our elections work and that many 
of us would not be here if we have to get 50 percent plus one 
of all eligible voters in our elections.
    H.R. 2723 would mandate an election every three years, if 
50 percent of the workforce changed, on whether employees 
should even have the right to have a representative and 
collectively bargain. Workers already have democratic rights 
under union constitutions. They can vote under collective 
bargaining agreements, and under existing law, they can vote to 
decertify the unions if they do not want one.
    This bill would force each local union to misdirect its 
resources to battle for its very existence on a continuing 
basis instead of building a stable collective bargaining 
relationship. So it is fundamentally at odds with the NLRA-
stated purpose to promote collective bargaining.
    Employees have a right to be fully informed in a union 
election, yet both H.R. 2775 and H.R. 2776 would overturn the 
NLRB's election rule that promotes transparency by assuring 
that the union and the employer have the same employee contact 
information.
    H.R. 2776 would provide three major impediments to union 
elections. It would impose a minimum 35-day waiting period just 
to hold an election, even in instances where the employer and 
employees agree to a speedier election; it would delay pre-
election hearings for at least 14 days; and it reverses a rule 
that requires litigation on some issues to occur only after the 
election. The bill would enable frivolous litigation, which is 
often used for the purpose of delay. In fact, employer law 
firms openly encourage companies to engage in pre-election 
litigation as a way to buy time to allow the heat of the 
union's message to chill prior to the election.
    Mr. Chairman, I ask unanimous consent to introduce a 
document from the Jackson Lewis law firm website into the 
record.
    Chairman Walberg. Without objection, and hearing none, it 
will be entered.
    [The information follows:]
    
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]   
    
    Mr. Sablan. Thank you.
    The National Labor Relation Act -- the NLRA seeks to assure 
employees the fullest freedom of association and does so by 
directing the National Labor Relations Board to determine the 
unit appropriate for the purpose of collective bargaining. Yet 
this bill directly empowers employers to gerrymander the 
bargaining unit by allowing them to add voters who do not share 
an overwhelming community of interests with those seeking to 
form a union and might have no interest in joining a union.
    As we learned in our February 14 subcommittee hearing, the 
NLRB's Specialty Healthcare decision ensures the voting unit 
cannot be gerrymandered by the employer. Eight -- eight 
separate federal circuit courts of appeals have approved this 
decision, and not one has overturned it.
    Specialty Healthcare has not led to the parade of horribles 
trumpeted by those who claim that microunits would proliferate 
and create havoc. The median bargaining unit size has remained 
at approximately 26 in the years before and after a Specialty 
decision.
    But before I close, I ask my colleagues not to be deceived 
by the names given to these union elimination bills. The 
Employee Rights Act takes rights away from employees. The 
Employee Privacy Protection Act does not protect intrusions of 
an employee's privacy from their employer. And the Workforce 
Democracy and Fairness Act undermines fair and democratic union 
elections by allowing unnecessary delay on elections based on 
gerrymandered voting units.
    This is the 27th hearing that this committee has held on 
unions since my colleagues start -- the Republican majority 
took over. And I hope in the future we can spend nearly that 
amount of time on retirement security, job safety, and other 
issues more pressing to the American people.
    While we may disagree, I want to thank the chairman for 
allowing regular order on these bills. I also want to thank 
each of the witnesses for taking the time to prepare their 
testimony and appear here today. And I thank you also for your 
patience because of the delay.
    Finally, I want to recognize a young lady, Nadia Ali, who 
is here today. Nadia is interning in my congressional office 
this week as part of the program with the Girl Scouts of 
America.
    Welcome, Nadia.
    And I yield back, Mr. Chairman.
    [The statement of Mr. Sablan follows:]

  Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking 
     Member, Subcommittee on Health, Employment, Labor and Pensions

    Thank you Chairman Walberg for holding this hearing today.
    At my first hearing as Ranking Member of this subcommittee I stated 
that the purpose of the National Labor Relations Act was to strengthen 
unions as an institution in our economy to ensure that wealth is more 
fairly shared.
    When working Americans are empowered to collectively bargain with 
their employers over wages and conditions of employment, productivity 
gains can be linked to wage growth.
    However, the three bills under consideration today sabotage 
workers' ability to organize and collectively bargain for a better 
life. Make no mistake about it, taken together these bills are not just 
union busting bills, they are union elimination bills.
    Workers should have a right to a fair union election. In any normal 
election, you have to win a majority of those voting to win. H.R. 2723 
would require the union to win a majority of all eligible voters. This 
means that every person who does not vote is counted as a ``no'' vote 
against the union.
    My colleagues all know that is not how our elections work and that 
many of us would not be here if we had to get 50% + 1 of all eligible 
voters in our elections.
    H.R. 2723 would mandate an election every three years, if 50% of 
the workforce changed, on whether employees should even have the right 
to have a representative and collectively bargain. Workers already have 
democratic rights under union constitutions: they can vote on their 
collective-bargaining agreements, and, under existing law, they can 
vote to decertify their unions if they do not want one. This bill would 
force each local union to misdirect its resources to battle for its 
very existence on a continuing basis, instead of building a stable 
collective bargaining relationship. It is fundamentally at odds with 
the NLRA's stated purpose to promote collective bargaining.
    Employees have a right to be fully informed in a union election. 
Yet both H.R. 2775 and H.R. 2776 would overturn the NLRB's Election 
Rule that promotes transparency by assuring that the union and the 
employer have the same employee contact information.
    H.R. 2776 would provide three major impediments to union elections. 
It would impose a minimum 35-day waiting period just to hold an 
election, even in instances where the employer and employees agree to a 
speedier election. It would delay pre-election hearings for at least 14 
days. And, it reverses a rule that requires litigation on some issues 
to occur only after the election. The bill would enable frivolous 
litigation which is often used for the purpose of delay. In fact, 
employer law firms openly encourage companies to engage in pre-election 
litigation as a way to buy time to allow ``the heat of the union's 
message to chill prior to the election.''
    Mr. Chairman, I ask unanimous consent to introduce a document from 
the Jackson Lewis law firm website into the record.
    The NLRA seeks ``to assure employees the fullest freedom of 
association,'' and does so by directing the National Labor Relations 
Board to determine ``the unit appropriate for the purposes of 
collective bargaining''. Yet this bill directly empowers employers to 
gerrymander the bargaining unit, by allowing them to add voters who do 
not share an ``overwhelming community of interest'' with those seeking 
to form a union and might have no interest in joining a union.
    As we learned in our February 14 Subcommittee hearing, the NLRB's 
Specialty Healthcare decision ensures the voting unit cannot be 
gerrymandered by the employer. Eight separate Federal Circuit Courts of 
Appeals have approved this decision, and not one has overturned it.
    Specialty Healthcare has not led to the parade of horribles 
trumpeted by those who claim that ``micro'' units would proliferate and 
create havoc. The median bargaining unit size has remained at 
approximately 26 in the years before and after the Specialty decision.
    Before I close, I ask my colleagues not to be deceived by the names 
given to these union elimination bills. The Employee Rights Act takes 
rights away from employees. The Employee Privacy Protection Act does 
not protect intrusions of an employee's privacy from their employer. 
And the Workforce Democracy and Fairness Act undermines fair and 
democratic union elections by allowing unnecessary delay and elections 
based on gerrymandered voting units.
    This is the 27th hearing that this committee had held on unions 
since the Republicans took over the majority. I hope that in the future 
we can spend nearly that amount of time on retirement security, job 
safety and other issues more pressing to the American people.
    While we may disagree, I want to thank the Chairman for following 
regular order on these bills. I also want to thank each of the 
witnesses for taking the time to prepare their testimony and appear 
here today.
    Finally, I want to recognize a young lady, Nadia Ali, who is here 
today. Nadia is interning in my office this week as part of a program 
with the Girl Scouts of America. Welcome Nadia.
    I yield back.
                                 ______
                                 
    Chairman Walberg. I thank the gentleman.
    And now we've heard the parameters of the issue, and that's 
the way it should be.
    And, Nadia, welcome.
    Pursuant to committee rule 7(c), all members will be 
permitted to submit written statements to be included in the 
permanent hearing record.
    And, without objection, the hearing record will remain open 
for 14 days to allow such statements and other extraneous 
material referenced during the hearings to be submitted for the 
official hearing record.
    It's now my pleasure to introduce our distinguished panel 
of witnesses. Ms. Nancy McKeague, from my home state of 
Michigan, is senior vice president of employer and community 
strategies and chief human resources officer for the Michigan 
Health & Hospital Association and not a stranger to this panel.
    Welcome.
    Ms. Karen Cox is a cycle counter handling inventory at an 
auto parts storage facility in Dixon, Illinois.
    Welcome.
    Mr. Jody Calemine is general counsel at the Communications 
Workers of America. Additionally, Mr. Calemine is a former 
staffer here at the committee for the minority.
    Welcome back.
    Mr. Seth Borden is a partner at McGuireWoods LLP, 
representing management in labor and employment matters. 
Welcome.
    I'll now ask our witnesses to raise your right hand.
    [Witnesses sworn.]
    Chairman Walberg. Let the record reflect the witnesses all 
answered in the affirmative.
    Before I recognize you to provide your testimony, let me 
briefly explain our lighting system. Most of you have been 
through this before, but it's like the traffic light. When it's 
green, keep going in your five minutes of testimony. When it 
hits yellow, begin to wrap up. You have a minute remaining. And 
when it hits red, don't be like me, just sliding it through, 
but finish your thought as quickly as possible. And we'll have 
opportunity to ask questions. It will probably bring further 
opportunity to finish your statements.
    And so now let me recognize our first witness for the first 
five minutes of testimony, Ms. McKeague.

STATEMENT OF NANCY MCKEAGUE, SENIOR VICE PRESIDENT AND CHIEF OF 
    STAFF, MICHIGAN HEALTH & HOSPITAL ASSOCIATION, OKEMOS, 
    MICHIGAN, TESTIFYING ON BEHALF OF THE SOCIETY FOR HUMAN 
                      RESOURCE MANAGEMENT

    Ms. McKeague. Thank you, Mr. Chairman. Good afternoon to 
all of you.
    And my sympathies to you, your staff members, and those who 
protect you for the situation this morning.
    Good afternoon, Chairman Walberg, Ranking Member Sablan, 
and the members of the committee. It's an honor to be here to 
discuss legislative reforms to the National Labor Relations 
Act.
    I serve as senior vice president and chief of staff for the 
Michigan Health & Hospital Association, or MHA, a nonprofit 
association advocating for hospitals and the patients they 
serve throughout the state of Michigan. And I appear before you 
today on behalf of the Society for Human Resource Management, 
or SHRM.
    Mr. Chairman, SHRM has always supported balanced labor-
management relations and believes an employee's decision on 
unionization should be based on relevant and timely information 
as well as free choice. Additionally, H.R. professionals have a 
responsibility to understand, support, and champion employment-
related actions that are in the best interest of both the 
organization and its employees regarding third-party 
representation by labor unions.
    Unfortunately, the NLRB's ambush rule substantially 
shortens the period of time when a representation petition is 
filed and when an election is held while severely hampering an 
employer's right to exercise free speech during union 
organizing campaigns. The rule also cripples the employer's 
ability to learn the employer's perspective on the impact of 
collective bargaining on the workplace.
    Consider, for example, that MHA allows employees up to five 
weeks to complete their annual benefit open enrollment, a 
friendly, noncontroversial process that requires open dialogue 
between the employer and employee so both parties understand 
their healthcare elections. During this time, our employees 
have access to our providers so they're fully educated on any 
potential changes and the impact those changes might have on 
them or their family. This engagement provides our employees 
assurances that everyone is best interests are served.
    Although MHA has never experienced an organizing effort, I 
know SHRM members that have, and it's clear to me that a 
similar amount of time and focus would be needed to educate 
supervisors, staff, and employees about the rights, 
requirements, and our perspectives on the organizing drive.
    But the ambush rule would greatly diminish the ability of 
employers to adequately respond, because it allows for an 
election within 11 days of a petition being signed. Now, 
contrast this with the ability of unions to prepare for their 
entire organizing campaign before it's made public, which 
clearly creates an imbalance between the rights of employees, 
employers, and labor organization in the pre-election period. 
This imbalance is compounded for small employers who may lack 
an H.R. professional or access to legal counsel, and for multi-
state employers who may have decentralized operations, making 
expedited communication with employees very difficult.
    Given these concerns, SHRM appreciates the chairman's 
leadership in introducing H.R. 2776, the Workforce Democracy 
and Fairness Act to restore fairness to union elections, 
providing both employers and employees ample time to review a 
union petition.
    Now, I want to take a minute to discuss employee privacy 
issues associated with the Excelsior List. SHRM is deeply 
concerned that the ambush rule requires employers to provide 
personal information to union organizers, including home 
addresses, home and cell phone numbers, without employees' 
consent once a union petition has been signed.
    Mr. Chairman, this is abhorrent, and it goes against 
everything that H.R. professionals have been trained to do 
without providing any safeguards for the information being 
shared with union organizers. Therefore, SHRM supports H.R. 
2775, the Employee Privacy Protection Act, to address these 
privacy concerns and allow employees to choose how they want to 
be contacted if a union petition is signed.
    Finally, SHRM is concerned with the interplay between the 
NLRB Specialty Healthcare decision and the ambush rule. Their 
concurrent existence provides labor organizations the ability 
to effectively target any industry or subgroup with the union 
petition.
    As outlined in my written statement, MHA has been advising 
hospitals across the state to prepare for this type of micro-
union organizing activity because the success of any hospital 
is dependent on the ability of its staff members to work as a 
cohesive unit with mutual respect. And this decision threatens 
this vital component and empowers union organizers to create 
division and discord among professional employees.
    In closing, Mr. Chairman, SHRM looks forward to working 
with this committee to advance H.R. 2775 and H.R. 2776. 
Importantly, these bills would modernize the election process 
while providing employees the privacy they desire while also 
restoring the delicate balance between the rights of employers, 
employees, and labor organizations.
    Again, thank you for this opportunity, and I look forward 
to your questions.
    [The statement of Ms. McKeague follows:]
    
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    Chairman Walberg. Thank you.
    Now I recognize Ms. Cox for your five minutes of testimony.

            STATEMENT OF KAREN COX, DIXON, ILLINOIS

    Ms. Cox. Chairman Walberg, Ranking Member Sablan, and 
members of the committee, thank you for the opportunity to 
testify today. My name is Karen Cox. And I'm here today from 
Dixon, Illinois, a small town from about two hours west of 
Chicago and the boyhood home of former President Reagan.
    Today, I work at an auto parts storage facility in Dixon, 
but I was previously employed at a cold storage facility in 
Rochelle, Illinois. For those of you who have not worked in 
cold storage, a typical day involves wearing full-body freezer 
gear and using a standup forklift to move pallets into and out 
of a storage freezer.
    My story begins in the spring of 2012. Rumors started going 
around about a union trying to come into our workplace. To be 
specific, this was the Retail, Wholesale, and Department Store 
Union, or RWDSU. I didn't take it that seriously because my 
coworkers and I were pretty content with our jobs.
    Soon we learned we were going to have an election. I was 
not particularly happy about it, but I thought at least we had 
time to educate ourselves and have a fair vote. But then I came 
into work 1 day and I was told the union was in and we were not 
going to have an election. The company had recognized them 
through a process called card check. This bypasses a secret 
ballot election, eliminating employees' rights to make a real 
choice for or against a union. I had never heard of this 
before, and it angered me. To me, it was un-American, and many 
of my coworkers agreed.
    Several employees had signed cards because they had been 
told they would just receive information about the union. They 
didn't know that, if the union got enough signatures, 50 
percent plus one, the company could recognize them and they 
could come in without an election.
    I had no experience with labor law and no clue what to do. 
After several phone calls to the National Labor Relations 
Board, I eventually got in touch with a lawyer from the 
National Right to Work Foundation who helped guide me through 
the process to remove the union from the workplace, which is 
called decertification. It requires collecting signatures from 
30 percent of the coworkers in the bargaining unit. I had to do 
this on my own, in break areas only, and during nonworking 
hours. It was a frustrating process, and I dealt with intense 
pressure from the union.
    In November 2012, I made the two-hour trip to Peoria and 
filed the first petition with the NLRB. On my way back, I got a 
phone call from my dad. He told me a rep -- our union rep 
contacted him and mentioned something about people losing their 
jobs and said that I needed to settle my grievances. My dad 
said: Watch your back because that was a threat.
    And I was shocked.
    After I filed my third petition in June 2013, we were 
granted an election. It was held a couple months later in 
August. However, since the union had appealed, we were unable 
to see the results, and the ballots were locked up until a 
decision was made on their appeal. A year later, we were still 
waiting on that decision, and the union contract that they 
negotiated for us was basically the company handbook. We were 
paying dues for something we already had.
    After several more months of waiting, in the spring of 
2015, the NLRB finally made a decision. They concluded that we 
did not deserve the decertification election because, although 
the union had a year to bargain and had even scheduled a 
contract ratification before I filed the petition that got us 
the election, they still had not had enough time to bargain.
    The ballots were destroyed, and we will never know the 
results. Today, I work at a different storage facility, but my 
experiences with the union at my last job will be with me 
forever. I am not anti-union, but I believe that all employees 
deserve a fair and secret vote on whether or not they want to 
join a union.
    That's why I support the Employee Rights Act, which 
guarantees a secret ballot vote. I want to ensure that other 
employees don't find themselves in the situation my coworkers 
and I were in: stuck with a union we didn't have a chance to 
vote for and that is difficult, if not impossible, to remove 
from the workplace.
    Thank you for your time today, and I'd be happy to answer 
any questions.
    [The statement of Ms. Cox follows:]
    
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    Chairman Walberg. Thank you, Ms. Cox, for your testimony.
    Mr. Calemine, welcome, and I recognize you for your five 
minutes.

    STATEMENT OF GUERINO J. CALEMINE, III, GENERAL COUNSEL, 
      COMMUNICATIONS WORKERS OF AMERICA, WASHINGTON, D.C.

    Mr. Calemine. Thank you, Chairman Walberg, Ranking Member 
Sablan, and members of the subcommittee. My name is Jody 
Calemine. I am general counsel of the Communications Workers of 
America. We represent hundreds of thousands of workers in the 
private and public sectors across the United States, Puerto 
Rico, and Canada. Thank you for the invitation to testify 
today.
    Before I begin, I too want to express my shock at the 
events this morning. On behalf of myself and the Communications 
Workers, our thoughts and prayers are with all the victims this 
morning. It's a horrific, heartbreaking event that we had 
today.
    As you said, not long ago, I used to work for the 
committee. It feels very funny sitting in front of you instead 
of behind you, but it's -- you know, it's great to be back. I 
wish it was under different circumstances. I wish it was about 
a bill that would bring us all together. I wish it was about a 
bill that would bolster workers' rights.
    I wish we were here to consider a bill that would allow 
workers to freely exercise the full breadth of their bargaining 
power, so that they can negotiate a better life for themselves 
and their families to share in the wealth that they helped 
create in this country.
    I wish we were talking about a bill that would allow more 
workers to stand up and fight to bring jobs back to the United 
States. I wish. I wish.
    Instead, the committee is considering three bills that, in 
my view, are nothing but bad news for American workers, and so 
I must speak out against them. I will try to stay measured 
about this.
    I worked on the Hill for 11 years, and all that time, I 
never saw a bill as extreme and provocative and anti-union, 
anti-worker as the Employee Rights Act. Hands down, it is the 
most far-reaching assault against workers' organizations that 
I've seen introduced in the U.S. Congress in modern times. I, 
personally -- I was beside myself when I read it.
    Taken together, as they are presented at this hearing, 
these bills are a very loud alarm bell. In provision after 
provision, an already tilted playing field is tilted even 
further against the American worker.
    Briefly, here's what they do: The default way that workers 
organize a union in the private sector is with an NLRB 
election. The bills do their best to rig that election against 
workers and their unions. For example, they try to block 
workers from communicating with a union before an election.
    If an election happens, the bills stuff the ballot box with 
anti-union votes by counting every person who doesn't vote as 
an anti-union vote. Congressional elections aren't run that 
way; if they were, few, if any, Members here probably would 
have won their elections.
    These bills work hard to delay union certification 
elections, to give employers more time to campaign while 
creating a new decertification process that can be triggered by 
the employer and for which these bills tolerate zero delay.
    If you're a worker trying to get a union, these bills make 
you wait. If you're an employer trying to destroy a union, 
these bills give you the fast track. These bills allow 
employers to gerrymander the elections, to pack the voter rolls 
with workers who haven't been involved in the organizing drive 
and didn't petition for the election, because the employers 
hope these workers will be ``no'' votes.
    And if workers try to escape this unfair government-run 
process by negotiating a voluntary recognition agreement with 
their employer, well, these bills won't permit it. They strip 
workers of the least conflict-ridden way to win union 
representation.
    These bills contain at least five different ways to drain 
union treasuries with pointless expenses. These bills strip 
union members of control of their own unions and outrageously 
give that control to employers and nonmembers. These bills seek 
to criminalize strikes and do their best to make being a union 
member an identity crime.
    I would be happy to answer questions about how the bills 
accomplish these ends, but I think the more interesting 
question is ``why?'' We've seen this across the country, many 
assaults against workers' rights to organize and collectively 
bargain in statehouses and the courts and here.
    But labor unions win workers higher wages, better benefits, 
safer working conditions. That's our mission. Labor unions 
fought for and helped win things like minimum-wage increases, 
health and safety protections, sick leave, family leave, Social 
Security, and civil rights, and we do stand in the way of their 
repeal.
    Labor unions call out unfair trade agreements, and fight 
everyday to stop companies from outsourcing jobs overseas and 
to bring offshore jobs back home. Workers joining together and 
fighting for a better life, that's one of the things that made 
America great. Unions fought for and won the American Dream for 
millions of Americans over the last century. We are the single 
best private sector mechanism for raising workers' wages.
    Unions are your fellow Americans. Our membership cuts 
across race, gender, and ethnicity, party lines--pulling people 
together for a common project to look out for one another. We 
have a right to exist. Workers' voices matter to an individual 
company, to the economy, and to our democracy. No one can make 
America great again without us.
    Thank you.
    [The statement of Ms. Calemine follows:]
    
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    Chairman Walberg. I thank the gentleman.
    And I recognize Mr. Borden for your five minutes of 
testimony.

  STATEMENT OF SETH H. BORDEN, PARTNER, MCGUIREWOODS LLP, NEW 
                         YORK, NEW YORK

    Mr. Borden. Good morning, Chairman Walberg, Ranking Member 
Sablan, and distinguished members of the subcommittee. It is a 
great honor and privilege to appear before you today.
    I want to echo the sentiments of the rest of the panelists 
and indeed some of you. My family will keep you all and your 
colleagues in our thoughts and prayers as we go forward.
    My name is Seth Borden. I'm a partner in the New York 
office of the law firm McGuireWoods. I'm not appearing today on 
behalf of any clients however, and my testimony does not 
necessarily reflect the views of McGuireWoods or any of my 
colleagues.
    I've been practicing traditional labor and employment law 
for 19 years, representing employers of all types and sizes in 
a variety of industries across the United States before the 
National Labor Relations Board. A copy of my firm bio is 
provided with the written version of my testimony.
    The Board's final rules, effective April 2015, overhauling 
representation election procedures and the Board's 2011 
decision in Specialty Healthcare cast aside standards and 
procedures that had worked for decades. To turn a phrase, the 
Board sought to fix something that wasn't broke in an effort to 
facilitate private sector union organizing.
    Passage of H.R. 2776, the Workforce Democracy and Fairness 
Act, and H.R. 2775, the Employee Privacy Protection Act, will 
be a significant step forward to reversing these unnecessary 
and misguided policy changes and restoring the proper balance 
of rights and interests that had worked sufficiently for most 
of the Board's history.
    The Board's 2015 rule all but eliminated pre-election 
resolution of very significant legal issues, like eligibility 
and unit inclusion, deferring litigation until after the 
election. In addition, the Board implemented new time targets, 
reducing the pre-election period during which employees can 
learn and contemplate their decision to as few as 13 days.
    These changes limit employer free speech protected by 
Section 8(c) of the National Labor Relations Act and infringe 
on the section 7 rights of employees to refrain from union 
activity. Postponing resolution of important legal issues until 
after an election only serves to enhance union electoral 
success by leveraging employer uncertainty and risk.
    H.R. 2776 would restore the pre-election hearing process. 
It will require a hearing absent agreement of the parties, 
provide time for the parties to prepare, and allow for the 
creation of a complete evidentiary record on all relevant and 
material issues expected to impact the outcome of the election.
    The Board's 2011 Specialty Healthcare decision announced a 
new standard for determining whether a bargaining unit proposed 
by a petitioning union is appropriate. It cast aside 
presumptions which were the result of decades of practical 
experience in case law development and opened the door to so-
called microunit organizing, whereby unions are the ones that 
can gerrymander a larger workforce and cherry-pick smaller 
units best suited to organizing success.
    Potential proliferation of microunits within a single 
workplace does not promote but rather threatens industrial 
peace and stability. It's all but certain to restrict an 
employer's ability to meet operational demands by efficient, 
flexible staffing, limit cross training and promotional 
opportunities, and lead to higher customer prices and budget 
pressures.
    H.R. 2776 would reverse this misguided policy direction and 
restore the Board's traditional community of interest analysis. 
It would provide additional stability and mitigate the ability 
of future boards to misuse newly announced standards by 
expressly incorporating these traditional factors into the body 
of the statute. These standards are far more consistent with 
the express terms and intent of the NLRA and had effectively 
met expectations for decades.
    The Board's 2015 rule also forces the employer to turn over 
extensive personal employee contact information. Now, within 
two days after direction of an election, the employer is now 
required to turn over the eligible voters' names and mailing 
addresses as well as all available personal email addresses and 
all available home and personal cell phone numbers.
    These requirements needlessly violate the section 7 rights 
of employees to refrain from union activity and the expectation 
of privacy employees have when providing personal contact 
information to their employers. More importantly, these days, 
no one is immune from the risks of hacking, phishing attacks, 
and identity theft, all of which increase with the volume of 
unwanted email or text messages directed at employees. Finally, 
many employers simply do not have all of the required 
information in one location or in a single common format for 
compiling and emailing in a two-day timeframe.
    H.R. 2775 will restore the seven-day timeframe for the 
careful compilation and transmittal of employee information to 
the Board, which worked sufficiently for nearly 50 years. 
Moreover, it would afford employees the choice of which method 
of contact each would prefer. This puts the choice of showing 
interest and sharing private contact information in the hands 
of the employees, where the statute would place it.
    For all these reasons, the subcommittee should move 
expeditiously to passage of H.R. 2776 and 2775 to fundamentally 
correct the unnecessary and misguided direction of the last six 
years. I look forward to your questions.
    [The statement of Mr. Borden follows:]
    
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    Chairman Walberg. Thank you for your testimony.
    Thanks to each of you.
    And now, noting that the witnesses pretty well kept to the 
time period, I would say the same thing to my colleagues here -
- of course, not the one I'll recognize first, and that's the 
chairwoman of the full committee, Mrs. Foxx.
    We welcome you for your statements.
    Mrs. Foxx. Thank you, Mr. Chairman.
    As chair of the full committee, I just want to take a 
moment to thank everyone for accommodating our time change 
today, especially the witnesses who came from out of town.
    As Mr. Walberg noted in his opening comments, this is a 
very sad day for this House. I know we're all praying for our 
colleagues, Members and staffs and brave Capitol Police, 
officers who suffered such a terrible act of violence this 
morning.
    But I truly believe that the best way we can honor our 
friends who are in the hospital or recovering with loved ones 
this afternoon is by doing what they would be doing if their 
day had not taken such a tragic turn, is by doing what all of 
us came here to do, and that's the people's work. So I do want 
to thank again everyone, our colleagues on both sides of the 
aisle, for being here.
    Now, I'd like to ask some questions of our witnesses. And, 
again, thanks to all of you for being here today and providing 
your valuable testimony and staying within the timeframe.
    Ms. McKeague, there's obviously concern among workers that 
the ambush election rules require employers to turn over to 
unions a number of pieces of personal information, including 
workers' home addresses, phone numbers, personal cell numbers, 
personal email addresses. This rule also puts employers in a 
difficult position.
    Can you give some examples of the burdens the 2015 changes 
to [Excelsior List] pose for employers? Additionally, what 
types of problems arise from needing to provide more 
information only two days as opposed to the prior seven-day 
standard?
    Ms. McKeague. Yes. Thank you very much.
    As most of you are probably aware, because you've been in 
the position of being on the giving side of that information 
stream yourself, we compile a lot of information about our 
employees, and it may be in a couple of different databases. So 
we have, you know, home addresses, home telephone numbers, cell 
phone numbers when they give them to us. We have the same 
information about their dependents. We start collecting Social 
Security numbers as soon as they're issued on their infants. We 
have military records. We have background check information. We 
have all sorts of sensitive information, and they're stored in 
a variety of different ways.
    The problem it creates for me, as an H.R. professional, is 
that these employees trust me to keep that information 
confidential. Because with the wealth of information I have, I 
can become them if I wanted to for purposes of applying for a 
credit card, getting a mortgage, doing anything that I 
shouldn't do with this. The chief rule I have for our H.R. team 
is that to misuse or leave that information out where it's 
available to somebody else is a dischargeable offense.
    In order to provide the Excelsior List information, I have 
to sort out from that what's being asked for on the Excelsior 
List. I have to check to make sure that it's accurate, because 
if it isn't accurate, I can be fined for that.
    Employees don't always update the information with me. For 
instance, a lot of my employees now, while I have a landline 
listed for them, they no longer use a landline, so I just have 
a cell phone. They certainly don't update the cell phone if 
they get a secondary cell phone.
    So it takes me a while to go back through that to make sure 
that it's as complete as it can be. And I only have 110 
employees. So I can only imagine what it's like at a larger 
enterprise, which is more likely to be the target of an 
organizing drive.
    Mrs. Foxx. Thank you very much.
    Mr. Borden, over the last eight years, the National Labor 
Relations Board made a lot of changes under the facade of 
helping workers. However, it appears to some of us that these 
changes actually hurt those they're intended to protect.
    For example, it seems to me the Board should be able to 
review the decision of a regional director before union 
election takes place. Can you give some examples of why pre-
election board review is essential?
    Mr. Borden. I'd love to. I think that this is, in 
particular, an area where the Board's 2005 -- 2015 rule, pardon 
me, got it exactly wrong. I think that when there are important 
questions of unit eligibility, inclusion, important legal 
issues that are likely to impact the conduct of the parties in 
the weeks leading up to an election and possibly impact the 
election itself, it is in everybody's best interest to have 
those issues resolved at the outset.
    Nobody wants to play an entire game only to find out after 
the final buzzer that the rules have been completely changed 
and all of a sudden Tom Brady is on the other team and all his 
touchdowns count for them instead. No one wants to find out the 
rules that they're playing under after the fact.
    And I think that the restoration of the pre-election 
hearing process here to resolve those issues -- is someone a 
supervisor or not? That has very, very serious legal 
implications for an employer and the people with whom it can 
communicate and how it communicates during an election contest.
    Issues of eligibility, voter eligibility, the Labor Board 
does a phenomenal job of protecting the secrecy and the privacy 
of the ballots cast. But my experience has been that employees 
don't want to hear: Oh, your eligibility is being contested so 
you can vote in this election, but your ballot may become the 
source of litigation after the fact.
    That has a chilling and intimidating effect that is 
unnecessary if we are able to resolve those issues at the 
outset.
    Mrs. Foxx. Thank you.
    And I just want to say, Ms. Cox, thank you for the courage 
you showed and the actions you took and for being here to share 
that.
    Thank you, Mr. Chairman. I yield back.
    Chairman Walberg. I thank the gentlelady.
    And I recognize the ranking member, Mr. Sablan.
    Mr. Sablan. Thank you very much, Mr. Chairman.
    Mr. Calemine, Jody, welcome back. It's good to see you 
again. Thank you very much for appearing this afternoon, and 
thank you for your many years of service to this committee.
    Your statement says that, while the three bills under 
consideration today are relatively short, they are packed with 
malicious intent. You pointed out that the true goal of the 
legislation is to weaken or eliminate unions. So, if this bill 
is forever enacted, what would become of collective bargaining, 
and what would be the effect on income inequality in our 
nation?
    Mr. Calemine. It's well studied that unions help push wages 
up, not just for their own -- the companies that are 
unionized--but their competitors then are forced to increase 
wages and benefits. A good example would be in the auto 
industry: UAW has done a good job of setting standards for 
wages, and it has helped push up wages across the industry.
    It would, in an immediate sense, as union -- if unions were 
eliminated, when we bargain, we bargain higher wages. We have I 
think a 27 or so percent difference between what union members 
make or what unionized workforces make compared to nonunionized 
workforces. It makes a huge difference in terms of -- that 
difference is even more dramatic when you look at the wage 
differences between union and nonunion workers who are women or 
African American or Latino.
    It just -- it does -- if we were to -- if these bills were 
to become law and organizing were to become next to impossible, 
especially under the Employee Rights Act, we would see income 
equality, just to get to the bottom line here, exacerbated and 
all the social and economic ills that come along with that.
    Mr. Sablan. All right. Yeah.
    And H.R. 2723, if it becomes law, it would require the 
majority of all eligible voters in order to certify the 
establishment of a union but would only require a majority of 
those actually casting ballots to the decertify a union. So 
that means that all nonvoters are ``no'' voters when it comes 
to electing a union, and you alluded to saying that some of us 
may not be here. I agree with you, my first two elections, I 
would not be here.
    But is there a double standard that sets out different 
tests for certification and decertification elections, or is 
this simply what it appears to be, a blueprint to eliminate 
unions?
    Mr. Calemine. Well, it's absolutely a double standard in 
this bill, what the Employee Rights Act does. As you said, if 
you are a nonunion workforce trying to become union, to do that 
you would need the votes of all eligible voters -- or I'm sorry 
-- a majority of all eligible voters to win.
    If you're a union shop, going through this automatic 
decertification process that has been -- that is introduced in 
this new bill, to decertify, you only need a majority of the 
votes cast. So it's far harder to win a union, far easier to 
eliminate a union.
    Mr. Sablan. So, then, if I understand H.R. 2723 correctly, 
there's a mandatory requirement for union recertification 
elections also every three years if there is a 50 percent 
employee turnover since the previous union election. So doesn't 
this effectively amount to a decertification process even 
though there was no decertification petition filed?
    Mr. Calemine. Right. Even though no worker may have wanted 
to decertify, there's now this process that causes an election 
to happen when the workforce changes by at least -- or, I 
guess, one more than 50 percent.
    Mr. Sablan. Right.
    Mr. Calemine. There's an automatic decertification, 
probably triggered by the employer's changes to the workforce.
    Mr. Sablan. Right.
    And, Jody, you very well know me. I'm from the insular 
areas, the territories. In this committee, we're calling the 
outlying areas. On Sunday or Saturday, there was an election in 
Puerto Rico where 93 percent of those who went to vote voted 
aye for statehood, but only 26 or 27 percent of the population 
of the registered voter population voted. So is that a majority 
of voters? I mean, is that how we would win union elections 
also?
    Mr. Calemine. Yeah, I don't follow exactly, but it doesn't 
sound like it.
    Mr. Sablan. All right.
    Mr. Chairman, my time is up. Thank you.
    Chairman Walberg. I thank the gentleman.
    Now I recognize the gentleman from Georgia, Mr. Allen.
    Mr. Allen. Thank you, Mr. Chairman.
    And thanks to our panel for being here and talking about 
this important issue.
    Mr. Borden, I'm interested to know about the impact of the 
combination of all these Board changes in recent years. For 
instance, what is the relationship between Specialty Healthcare 
and the NLRB's ambush election rule, and what effects have you 
seen since the decision and the rule were handed down?
    Mr. Borden. Sorry. I think it's hard to even focus on just 
the interchange of those two changes because there were so many 
changes during the last five or six years where the Board 
changed drastically longstanding principles of law that are 
critical to an employer's approach to these issues and critical 
to the balance of the employees' unions and the employers' 
rights: the joint employer standard, which was overhauled 
significantly; the multiemployer bargaining unit cases whereby 
third-party employees can be included with the regular full-
time employees of an employer without the consent of all 
parties; and even some of the more discrete issues like use of 
the employers' equipment for organizing purposes.
    These all cast aside 30, 40, 50 years of precedent and the 
manner in which employers were accustomed to doing things. When 
you add in the fact that now, on a compressed time framework, 
where the employer has only a few days after the filing of a 
petition to discover all of the legal issues that they may have 
to approach, consider these new legal frameworks, compile all 
of the evidence that might be necessary for assessing and 
addressing those issues to the Board in the hopes -- in the 
hopes -- of getting a hearing to create a record and preserve 
issues, and then you couple that with the further complication 
of the Specialty Healthcare standard that they'll be forced to 
consider and the need to do all of these other things, like 
compiling all this data that Ms. McKeague spoke about, in order 
to get it to the union within just two days after that 
direction of election, it eats significantly into the resources 
and the focus that employer has to exercise its free speech 
rights for whatever timeframe it might have before that 
election.
    Mr. Borden. And it makes it harder to comply with all of 
the technicalities.
    Mr. Allen. Certainly, Ms. Cox, in your testimony, you 
brought some examples about some of the issues you've dealt 
with. You know, we're talking here today about legislation that 
would correct some of these things.
    Mr. Borden, you talked about -- let's talk about the 
overwhelming community of interest test. When does the Board 
use this test in determining bargaining units, Mr. Borden?
    Mr. Borden. Well, the answer to that question differs as to 
whether you meant before 2011 and the Specialty Healthcare 
decision or now. The overwhelming community of interest 
language was plucked out of an unrelated standard that the 
Board employed in -- traditionally in accretion cases, which is 
the standard that's applied when you have an existing 
bargaining unit in place represented by a union. And the union 
or employees petition for the inclusion of another group of 
employees into that existing bargaining union without an 
election. And the Board had traditionally looked at that and 
said, we'll only allow that to take place if those additional 
employees share an overwhelming community of interest with the 
already represented employees.
    Mr. Allen. Okay.
    Mr. Borden. The Specialty Healthcare case, pluck that 
language out of context and applied it to the traditional test 
that turned the traditional test on its ears to change and add 
a significant burden to employers when they wanted to challenge 
the handpicked unit that a union petitioned for.
    Mr. Allen. Does the Workforce Democracy and Fairness Act 
adequately address this issue? Do you believe it?
    Mr. Borden. I think it does. I think it does by -- as I 
said in my opening comments, by putting the traditional 
community of interest factors, the test that had been used for 
decades prior to Specialty, expressly into the language of the 
statute, it would provide that clarity and that stability, the 
inability of a future board to approach this issue unilaterally 
and kind of whimsically change the standard.
    Mr. Allen. I yield back, Mr. Chairman.
    Chairman Walberg. I thank the gentleman.
    And I recognize the gentleman from New Jersey, Mr. 
Norcross.
    Mr. Norcross. Thank you, Chairman. And our thoughts go out 
for what happened today, a remarkably sad day.
    But I want to start with what the Speaker talked about, and 
that is the relationships and working together. You on this 
panel know that I worked as a business agent for close to two 
decades. I've lived what you're talking about today. And my 
hand is extended, and any time you'd like to hear a view from 
the opposing side, who have been to the NLRB, who had filed 
elections.
    But let's look at the facts. It almost seems like we're in 
some alternate universe of how bad the employer has it. I'm 
going to bring to your attention the percentage of union 
workers over the course of the last quarter century. When those 
are telling us you have it so bad. We're down to 10 percent, 
the union side. You can see it behind you. So all these 
horrible rules, yet you're still winning all the elections. 
Facts count, and this is what I want to be talking about.
    Now, we as a country many years ago decided that people 
would have a voice in the workplace, that they would be able to 
join unions, have collective bargaining. Well, there's been a 
tremendous drop over the course of -- since 1983. And there is 
just so much to cover here today, but I want to try to focus in 
on a couple of those.
    First and foremost, when we talk about access to the 
employees, the employer has unlimited access. They have any 
number of meetings that they want to put together, there's 
captive audiences. It's up to you. And you're suggesting that 
you don't even know your own employees. And to say you can't 
pull the electronic information out--I think my 12-year-old 
grandson could pull that out. This is not burdensome. In fact, 
union membership has gone down since you put this rule into 
effect. I know the lawyers like it. This creates a lot more 
opportunities, but this is just trying to create fairness.
    There was a statement made by Ms. Cox that talked about the 
employees who had signed the authorization card to receive -- 
they said they thought they were going to receive union 
information. The fact of the matter is that can be used as an 
unfair labor practice. And I have one right in front of me that 
talks about exactly what it says: I hereby accept membership in 
the above-named union, and on my own free will, I hereby 
authorize.
    So, Mr. Calemine, is there anything in this that you would 
say is deceptive?
    Mr. Calemine. No, it's very plain language.
    Mr. Norcross. It's one that's used universally, because the 
card could be thrown out if it's not following the rules, 
right?
    Mr. Calemine. All cards have language along those lines.
    Mr. Norcross. Why do you think we're in this position 
today, the ambush rule as they call it? Where's the problem 
with that if the elections are still, by majority, being won by 
the employer?
    Mr. Calemine. Well, I think -- I appreciate the question, 
because it allows me to provide more context for what's going 
on here. There isn't -- it's not as if when the petition is 
filed -- I would be surprised if there's a case out there where 
-- or that there are very many cases out there anyway where an 
employer did not know workers were trying to organize a union 
until that moment that petition was filed.
    An organizing drive takes a lot of work and it is very 
difficult, because the union does not have access to the 
workplace; the employer has total access. So there's a lot of 
attempting to get people's attention outside, to meet with 
people outside of work. And as Ms. Cox described, when you're a 
union supporter trying to organize a union, you're also 
confined to nonwork areas, nonwork time when you're in the 
workplace. So it's very difficult.
    So I don't view this as ambush. I actually -- I think what 
happens is when the petition is filed, I think it sends a 
signal to the employer, uh-oh, they must now have the votes, 
and now is the time to really start campaigning to switch those 
people back. So the more time they have after a petition has 
been filed, the better off they are. I think there have been 
studies showing that that's the time when unfair labor 
practices are more likely to be committed in that timeframe. So 
I think that's a fine time to turn the election.
    Mr. Norcross. Five seconds less on your support bill, but, 
again, when we can work together, that's how our country will 
grow, not by creating the good guys and the bad guys or the 
union and the employer. We really could have a conversation and 
work this out.
    I yield back.
    Chairman Walberg. I thank the gentleman.
    And now I recognize the gentleman from Michigan, Mr. 
Mitchell.
    Mr. Mitchell. Thank you, Mr. Chair.
    Ms. Cox, I don't want you to get bored there, especially 
all the time you waited. And thank you to all of you for 
rearranging your schedules today.
    I'm aware of concerns that employees have that sometimes 
they don't feel adequately advised what the consequences of 
signing a card given to them by union organizers, union 
representatives. In your experience, did the union provide you 
and your fellow employees with accurate information about what 
it meant to sign the card? And what recourse did you have?
    Ms. Cox. Many of my coworkers were very upset after they 
found out we were not going to have an election, because they 
were told, no matter what it said on that card, they were told 
that if they signed that card, they would get information about 
the union, whether or not they wanted to decide to have a union 
or not.
    And they did this -- actually, nobody was doing this 
petitioning outside of work like I did when I was doing it on 
the other side. These people were doing it on work time and 
inside the building, during work hours. They weren't supposed 
to, but, you know, they were sneaky about it.
    Mr. Mitchell. And you didn't think that was quite as 
balanced as it should be, I assume?
    Ms. Cox. No, I do not. I don't think that's fair at all.
    Mr. Mitchell. Let me ask you a question, giving that 
information, your personal information as part of the union 
organizing drive, the current system has basically any of the 
identifying information short of your Social Security number 
and your address, all your telephone numbers, all of that is 
required to be turned over as part of the organizing drive. 
What's your opinion of that?
    Ms. Cox. Of the union having my address and everything?
    Mr. Mitchell. Address, all your phone numbers, your cell 
number, they're entitled to all that, based on the current 
rulings.
    Ms. Cox. Well, I don't agree with it. I do know that, after 
I started petitioning, many of the union reps were visiting 
homes and upsetting many of my coworkers, because they came to 
their door and tried to persuade them against me.
    Mr. Mitchell. Did any of your benefits people come to your 
home to talk to you about your health insurance benefit or 
anything else?
    Ms. Cox. No.
    Mr. Mitchell. They didn't. But they're supposed to help you 
out as workers. Do you know if any of the union organizers come 
to talk to you?
    Ms. Cox. No.
    Mr. Mitchell. Did the union come to talk to you about what 
the contract negotiation should be like? Did they stop in to 
see your thoughts on that?
    Ms. Cox. No, they did not.
    Mr. Mitchell. So they only came by to make sure you signed 
the card so they could organize.
    Ms. Cox. Exactly.
    Mr. Mitchell. Well, so much for being concerned about 
representing the employees.
    Ms. McKeague, we talked about the distribution of 
information with the [Excelsior List.] My company had 650 
employees. I'm not -- to be brutally honest with you, I'm not 
sure we could ever comply with a two day turnaround with the 
information required by that list. More importantly, is there 
any other function that you had that requires you turn over a 
list to that extent of your employees to some other entity?
    Ms. McKeague. The only way I would turn over any of that 
other information would be under a court order.
    Mr. Mitchell. That would be as a result of some legal 
action or a subpoena?
    Ms. McKeague. Generally, the only other time I would get a 
request for that kind of information without the employee's 
consent would be under a pending divorce action or a child 
custody dispute.
    Mr. Mitchell. But that would only be for one employee, 
correct?
    Ms. McKeague. That would be one employee, correct.
    Mr. Mitchell. One or two, depending on the circumstances. 
Right.
    Ms. McKeague. Yes.
    Mr. Mitchell. But not all of your employees?
    Ms. McKeague. No. I've never seen a circumstance where it 
would be required for all of my employees.
    Mr. Mitchell. And you've never -- other than the union 
organizing activity, never seen -- I've never it in my career 
other than this. It is the most unique thing I've seen.
    Ms. McKeague. Correct. And this is information that all of 
us teach our children not to hand out to anybody else because 
of the risk.
    Mr. Mitchell. As a matter of fact, you're right.
    Ms. McKeague. Uh-huh.
    Mr. Mitchell. And when we obtain utility service, health 
insurance, I can give you a long list, we in fact only provide 
specific information we want to provide for contact. We get to 
choose. But in this one instance, under the current rulings, 
all that information is released.
    Ms. McKeague. And that's my objection, is it's done without 
the employee's consent.
    Mr. Mitchell. And to be direct and honest with you, it's my 
objection as well, which is why I support the legislation that 
would make this change and will urge us moving forward when it 
comes time for markup.
    My time has expired. I appreciate everyone being here. Have 
a good weekend.
    Chairman Walberg. I thank the gentleman.
    Now I recognize the ranking member of the full committee, 
Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Ms. McKeague, you mentioned some problems at the acute 
hospitals. So there are special rules for organizing bargaining 
units in acute care hospitals?
    Ms. McKeague. I'm not a specialist in bargaining. Most of 
my hospitals that are organized have very good cooperative, 
respectful relationships with their bargaining units. And 
assuming that this goes back to the Specialty Healthcare 
decision, this is where I will agree with Mr. Calemine about 
Specialty Healthcare.
    I believe the circuit courts of appeals, it was mentioned 
earlier, eight of them agreed with the NLRB on Specialty. I 
think that was a very fact-specific case dealing with a 
nonacute care facility and the bargaining unit. And I believe 
the circuit courts got it right.
    My concern on Specialty, which has since been used to deal 
with microunits outside of the nonacute care setting, has been 
that it could be used, if it isn't corrected, on a go-forward 
basis in an acute care setting would be very dangerous.
    Mr. Scott. Well, that's why there are special rules in 
acute care hospitals. Has your position taken -- speaking of 
healthcare, has your position taken a -- has your organization 
taken a position on the TrumpCare?
    Ms. McKeague. Yes.
    Mr. Scott. What is it?
    Ms. McKeague. The Michigan Health & Hospital Association 
has taken a position. SHRM, which I'm here to testify on behalf 
of, has not.
    Mr. Scott. And what is that position?
    Ms. McKeague. Michigan Health & Hospital Association is 
opposed to the Affordable Health Care Act which the President 
has proposed.
    Mr. Scott. Thank you.
    Mr. Borden, you've indicated a need to get everything 
straight before the vote. If the subjects of the litigation 
would be moot because the number of votes in controversy are 
overwhelmed by the margin victory, why shouldn't the vote go 
forward?
    Mr. Borden. Well, I think there are, as I mentioned 
earlier, there are practical consequences and possible real 
legal exposure that employers are forced to undertake if they 
don't have the certainty of certain issues.
    Mr. Scott. Right. But, I mean, you can argue about one or 
two votes here, one or two votes there. If the margin of 
victory was like hundreds of votes, why would you delay, 
through various levels of litigation, the vote to get -- to 
figure out whether or not those votes are eligible or not 
eligible when all of those questions would be moot if there is 
a much larger margin?
    Mr. Borden. I think because there are issues beyond simple 
inclusion or eligibility of certain voters that pertain to 
whether their vote will count or not. The issue of supervisory 
involvement is one that I mentioned, is the one that springs 
most chiefly to mind.
    Mr. Scott. And if you're arguing about a handful of votes 
when the margin is hundreds, why would you want to delay a bill 
and wait for a final verdict?
    Mr. Borden. Because it has nothing do with the handful of 
votes. It has do with the fact that if there are 10 or 15 
workers who an employer deems to be supervisors, management, 
agents of the company, and the union contends are employees, 
failure to resolve that issue at the outset has far reaching 
consequences. Now, as an employer, I'm forced to make a 
decision. I'm forced to either decide I'm not going to talk to 
these 15 people, who I earnestly believe to be members of 
management during this campaign, deny them the information and 
my communications --
    Mr. Scott. So if you can find side issues that would be 
totally moot, if you could just get to a vote --
    Mr. Borden. With due respect, I don't think the supervisory 
issue is mooted. And, frankly, it threatens to undermine the 
vote.
    Mr. Scott. It would be mooted if you're talking about a 
handful of supervisors and you're about to lose the election by 
hundreds of votes. Why should you be able to delay for months 
and even years an election, Mr. Calemine?
    Mr. Calemine. Yeah. I was just pointing out -- I think the 
question of whether or not somebody is a supervisor or not, if 
it's a real problem for the employer, it's been a problem for a 
long time, because the organizing drive has been happening for 
a long time. You only get to resolve these questions at the 
end. And it's at the end of that campaign, that long campaign, 
whether the election is about to be delayed or not, on some 
level.
    I also just wanted to make a point that with respect to all 
the information that the NLRB rules allow -- now have employers 
provide to unions, these bills do not protect employees' 
privacy from their own employers. That is, the employers can 
compel employees to give them their email addresses, their 
personal email addresses, their personal cell phones, et 
cetera, for purposes of use in the campaign. So one side, again 
-- and remember that the reason this has become an issue for 50 
years getting this [Excelsior List] is that the union is not 
permitted to come into the workplace.
    It might be a completely different debate if what we were 
actually debating was the unions -- to avoid having to talk to 
workers outside of the workplace--if unions were entitled to 
access to the workplace. That would be -- and in some cases, 
that's what happens, employers and unions will reach an 
agreement to provide for union access, but unions aren't 
entitled to that. So how are unions supposed to talk to the 
voters when the employers have the voters captive, essentially, 
for captive audience meetings or throughout the workday and 
talk to them all the time? There's just -- this is just a 
matter of fairness.
    Chairman Walberg. The gentleman's time has expired.
    Now I recognize the gentleman from South Carolina, the 
sponsor of H.R. 2775.
    Mr. Wilson of South Carolina. Thank you, Mr. Chairman. And 
thank you, Mr. Chairman, for your dedication and leadership for 
meeting today and with our thoughts and prayers with 
Congressman Steve Scalise, the U.S. Capitol Police, and then 
staff members. And I particularly am thinking of different 
offices, like the office of Tim and Sue Walberg, that their 
office has been directly affected. And it's just so impressive 
to have a chairman who will continue on important issues as we 
work for the citizens of our country. God bless you. Thank you.
    Ms. McKeague, in your experience, are union organizing 
campaigns always started by employees or is it instead a result 
of a union operative coming in from the outside? Can you 
explain the process?
    Ms. McKeague. No, they're not always started by employees, 
but there has to be a receptive employee for the union to get a 
foothold in the organization. So, you know, generally it's a 
little bit of both. And my experience tends to come from a 
receptive audience within our workforce. And it's generally 
more successful when there's been a relationship between an 
employee in one of our facilities and somebody from the union 
which wants to become recognized in the workplace. That can 
come about from a friendship or an existing relationship with 
an employer where that employee used to work, but it generally 
comes out of a collaborative working relationship or friendship 
that they've had someplace else.
    Mr. Wilson of South Carolina. I'm grateful. In my home 
state of South Carolina we've recently had an organizing 
campaign at the Boeing facility in North Charleston, South 
Carolina, and it was really outside. And to the credit of the 
workers, the results of the most recent vote was 73 percent not 
to organize. And it was truly a credit of the workforce, a 
credit to the personnel there, such a positive environment. And 
we in South Carolina truly benefited. We now have nearly 9,000 
people at that facility in North Charleston. And then the 
ripple effect for suppliers. Throughout the district, I 
represent perturbing for interior for the cable, and so we've 
seen a very positive result just recently in my home state.
    Ms. Cox, I want to thank you for being here today and 
sharing your information. I share your concerns about employee 
privacy. You and your father's experience with the threat made 
by union representatives shouldn't happen to American workers 
or their families. Yet there are numerous articles that cite 
similar occurrences.
    In a [Washington Times] article, Jennifer Parrish tells of 
how a person came to her house uninvited and became 
increasingly angry when she refused to sign his petition. The 
petition he wanted her to sign was indeed a union authorization 
card.
    The ambush election rule that we're discussing today 
requires employers to provide even more private information to 
union representatives than before.
    You mentioned your family has been contacted. How did the 
union get that information? Given your experience, does 
providing even more private information about the employee 
increase the possibility of greater coercion or harassment from 
paid union organizers?
    Ms. Cox. I'm really not sure how they got my dad's -- even 
his name, because we don't share the same last name, and I was 
not living with my parents. I'm not sure -- he must have done 
some research on me beyond my address and name.
    Mr. Wilson of South Carolina. Well, again, thank you for 
your courage for being here today.
    Mr. Borden, thank you for your service. As a fellow 
attorney, I particularly appreciate your insight. And as we 
have legislation today, I appreciate your endorsement of the 
Employee Privacy Protection Act. And can you give any other 
reasons why this is so important?
    Mr. Borden. I think that beyond the -- beyond just the 
problems that the other witnesses have spoken to about turning 
this personal contact information over is the manner in which 
some regions of the Board have enforced these new requirements. 
And what particularly comes to mind is a case coming out of the 
Boston region, Danbury Hospital case, where despite the fact 
that within this two-day timeframe the employer turned over 
every voter name, every voter home address, what had been 
required for 50 years, to the union, had turned over phone 
numbers and/or email addresses for 94 percent to the bargaining 
unit.
    So that was far more than any union had gotten in any 
election in 50 years from an employer. Because the Board 
regional director found that they did not do an extensive 
enough search of individual department lists and separate lists 
that might be maintained, even perhaps by individual managers, 
to see if there were any other available numbers or email 
addresses available, he threw out the results of that election. 
This enfranchised 390 people that voted against that union. 
That is not a reasonable result within the framework of these 
new rules.
    Mr. Wilson of South Carolina. Well, thank you for your 
background very much. Bye-bye.
    Chairman Walberg. I thank the gentleman.
    And now I recognize the sponsor of H.R. 2723, the chairman 
of the Veterans' Affairs Committee and the gentleman from 
Tennessee.
    Mr. Roe. Thank you, Mr. Chairman.
    I'm going to associate my remarks with Mr. Wilson in his 
comments about what happened today. And I thank all of you all 
for being here.
    Mr. Calemine, I thank you for your years of service on the 
minority.
    I want to get a couple of things in the record, Mr. 
Chairman. To start with, one, less than 10 percent of union 
members ever voted for a union they currently represent. Number 
two, since the ambush -- the so-called ambush election rule 
came in, unions were winning, at that time, 68 percent of 
representation case elections, contrary to what Mr. Calemine 
said. And as fiscal year 2016, the first full year of the rule 
when the elections were representation cases, it won 72 
percent.
    I know as an employer there's no way on this planet I could 
get an attorney, a labor attorney in 10 or 11 or 12 days to 
represent me. There would be no way I could educate myself. I 
am completely disarmed. So I want to get that on the record.
    Number three I would like to get on the record is that the 
Railway Labor Act covers major airlines and rail employment has 
the same absolute majority requirement in election for over 75 
years, that's been going on. And to compare that to an election 
we have, which is going to get me to the secret ballot 
election, is that a Congressman can't deduct anything from your 
paycheck. We can't force you to go on strike, and we can't have 
you fired if you don't follow the rules. There's a big 
difference.
    Forty-four years ago, right now, I'm 11 miles south of the 
demilitarized zone in Korea, serving in the United States Army. 
I put on that uniform and left this country so that you could 
have a secret ballot to elect me, the President, and the union 
heads. And yet Ms. Cox can't get that if there's a card check. 
She can't have the same protections.
    And, Ms. Cox, I think that bothers me more than anything, 
is that I think we need to have -- this country was founded on 
the secret ballot. My wife tells me she voted for me. I don't 
know that for a fact because it's a secret election, a secret 
ballot. And I think that you as an employee ought to have 
exactly the same right. And I cannot understand why anybody at 
this dais would not insist that you have that right. While 
somebody could check a card and then decide for you belong to 
an organization, I don't get that.
    And I want to ask you, and you spoke very eloquently about 
this, decertification process that you personally went through. 
But you took your own time, you traveled in the NLRB office. 
And it appeared, all to no avail, two years later they threw 
the ballots out. And do you believe that individual employees 
are given a voice in the process as you describe in your 
testimony or is NLRB more concerned with interest of unions and 
employers instead of the employee?
    Ms. Cox. I truly believe that the NLRB was very biased and 
sided with the union. I mean, I don't know how -- the petition 
that I filed that got us the election was filed before -- I'm 
sorry -- after they scheduled the ratification. They were done 
bargaining. So how can the NLRB tell me now that we didn't 
deserve that election because they didn't have enough time to 
bargain when they already were done?
    Mr. Roe. So why do you think that was?
    Ms. Cox. Why do I think --
    Mr. Roe. Why do you think the NLRB ruled like they did?
    Ms. Cox. I'm really not sure.
    Mr. Roe. Do you think that was a fair ruling?
    Ms. Cox. No, I don't think that's fair at all.
    Mr. Calemine. I can answer.
    Mr. Roe. I think another thing that's in the bill that I 
have here is secret ballot votes for a strike. I grew up in a 
union household. My father worked in the United Rubber Workers 
union. And I remember the strikes we went on, that he had to go 
on, where our family was deprived of income. Some of them went 
as long as 3 months. I mean, I can still remember those. We 
would go out and sand floors and do whatever we could to make a 
living to feed our family. And eventually his company left the 
country. And here's a 50-year-old, after World War II -- 50 
years old, a high school education and no job. And so I've seen 
where people have lost their job; not have higher wages but no 
wages at all.
    And, Ms. Cox, I think your testimony is incredibly 
compelling to me, when you didn't want this, you weren't 
afforded the rights that I think any employee ought to be 
afforded.
    Ms. Cox. Thank you.
    Mr. Roe. Mr. Borden, do you have any comments on that?
    Mr. Borden. I do not, other than to say that the Labor 
Board does usually do a phenomenal job of trying to protect the 
secrecy and the privacy of the ballots in those elections.
    Mr. Roe. Why would they have thrown them away?
    Mr. Borden. I think it's one of the things, frankly, that 
the Labor Board does best.
    Mr. Roe. I yield back, Mr. Chairman. Thank you.
    Chairman Walberg. I thank the gentleman.
    And now I recognize myself for five minutes of questioning.
    Ms. McKeague, the ambush election rule is especially 
difficult for smaller employees -- employers. Excuse me. Are 
smaller employers particularly affected by the timetable of an 
ambush rule?
    Ms. McKeague. Yes, in my opinion, they are. Most small 
employers don't have an HR staff, certainly not a professional 
staff in most cases. And as was just noticed -- mentioned, they 
certainly don't have a retained legal counsel that specializes 
in labor law. And in order to hire outside counsel, even if you 
were able to hire somebody in that first day or so, they have 
to do a conflict check in order to take you as a client, that 
of course means checking you against everybody else.
    Chairman Walberg. How long would that take?
    Ms. McKeague. A minimum of -- a minimum of 72 hours, 
depending on the size of the firm.
    Chairman Walberg. You're talking of seven days potentially 
that you have, right, to get this accomplished? Taking out 
those 72 hours?
    Ms. McKeague. Yeah, taking out the 72 hours, because you 
can't go over the facts of the case with them, the lawyer, 
until you know that they don't have a conflict. So you're in a 
holding pattern until they can get that conflict checked done. 
So you've lost three days before you can even sit down with 
outside counsel and go over it. So you can start to do some 
background work within your place of business, but if you don't 
have the internal expertise to do that, you're dead in the 
water for three days before you can even start to get up and 
running. So as the gentleman noticed, yeah, you are already 
past your two day period.
    Chairman Walberg. Even for the employer with best interests 
to make sure that a fair disclosure is given out there and an 
employee of his or her business understands very clearly it is 
almost impossible, especially for the small employer, to do the 
due diligence, to care for their employees, as well as their 
own setting to keep the jobs.
    Ms. McKeague. I would say for an employer of fewer than 50 
employees, impossible. For an employer of 100 or fewer, still a 
very close call.
    Chairman Walberg. It's tough. Thank you.
    Mr. Borden, the Obama NLRB sought to tilt the playing 
field, as we discussed, under the guise of helping employees 
like Ms. Cox in the direction of unions. In your experience, 
when do employers become aware of union organizing drives?
    Mr. Borden. I would say that there's been a -- that I've 
seen a varied experience there, to be candid. I think there are 
some employers, as Mr. Calemine suggests, that are aware ahead 
of time, that have the heads-up. But just as much, I have seen 
that more savvy union organizers make a concerted effort to 
stay below ground for as long as they possibly can and to use 
as much time, weeks, months, or years prior to filing a 
petition, prior to alerting the employer to what's going on to 
organize a group of employees that are going to drive the 
organizing effort.
    Chairman Walberg. And the ambush rule has made it even more 
challenging?
    Mr. Borden. Well, it's made it more challenging in the 
sense that, regardless of how much time ahead of the filing of 
the petition the union has been working quietly, the amount of 
time that the employer has after the filing of that petition 
has been significantly reduced.
    Chairman Walberg. Ms. Cox, thank you for sharing firsthand 
experience that you've gone through, you've walked through and 
had a memorable, to say the least, testimony to share for this 
committee today. It's the most important perspective, I 
believe, to consider, how it actually works in relationship 
with the employee.
    In your experience, are the interests of employees and 
interests of unions always the same?
    Ms. Cox. I'm not sure what you mean.
    Chairman Walberg. Looking at how this came about in your 
life, was the interest of the employee and the interest of the 
employer the same, and especially in its impact upon you?
    Ms. Cox. The interest of -- like my interest as an employee 
compared to my employer?
    Chairman Walberg. Employer, correct.
    Ms. Cox. I believe there's a difference, for sure. I mean, 
with the employer, it's a business thing.
    Chairman Walberg. Would it be safer to say -- I didn't want 
to make a trick question out of that. But would it be safer to 
say that the interest of employers, employees, and unions are 
all different?
    Ms. Cox. Yes.
    Chairman Walberg. And so all ought to be considered?
    Ms. Cox. Yes.
    Chairman Walberg. In a timely fashion.
    Ms. Cox. I agree.
    Chairman Walberg. Hopefully brings about the best results.
    Ms. Cox. Yes.
    Chairman Walberg. I see my time has expired. I appreciate 
the answers. I appreciate the witnesses and the chance to 
respond to questions, but we've come to the end of the hearing.
    This is, as was mentioned earlier, an appreciation for 
regular order. This is what we wanted to do. We want the 
subcommittee to work and address it first. I'm sure there will 
be other discussions that go on. I know that's the interest of 
the chairman of this full committee on Education and Workforce, 
to make sure that we deal with a very timely and important 
issue, relative to employers, employees, and unions in a way 
that isn't just a pass of the hand, but we look at it and hear 
testimony.
    And so now I would turn and ask the ranking member if you 
have any closing remarks to make.
    Mr. Sablan. Yes, Mr. Chairman. And I want to thank the 
witnesses again for their testimony.
    As I noted at the outset, the right to collective 
bargaining is to keep ensuring a fair economy. Numerous studies 
show that income inequality has skyrocketed as union density 
has dropped. Today, private sector union members have just a 
little over 6 percent, and the legislation before us today is 
aimed at the extinction of private sector unions as we know 
them. Today, we have learned that the three bills under 
discussion are designed to sabotage any notion of a fair union 
election process.
    H.R. 2723, the so-called Employee Rights Act, rigged union 
elections by counting every eligible employee who did not vote 
as having voted no against union representation.
    H.R. 27 -- and if I may note at this time, and with huge -- 
I have huge respect for the distinguished gentleman and my 
chairman of the Veterans' Affairs Committee, the gentleman from 
Tennessee. I think he maybe has incorrectly claimed that the 
labor -- Railway Labor Act currently uses the ERA's rule, 
making nonvoters vote against the union. I think the rule was 
amended in 2010 to require a bare majority of votes and not 
voters, like he stated.
    H.R. 2775, the so-called voter Democracy and Fairness Act, 
prohibits unions from having the same access to employees' 
contact information as the employer during the election 
process, thus preventing employees from being informed about 
union representation. And as one of the witnesses stated, that 
although she didn't fill the form, she thought, and many 
employees thought, that filling out the form, and which is 
written in both English and Spanish, was to provide 
information. But it actually hereby also says that, I hereby 
accept membership in the above-named union of my own free will, 
and hereby authorize it to act for me as a collective 
bargaining agency in all matters pertaining to wages, hours, 
and conditions of employment. And this is a union of the 
Retail, Wholesale, and Department Store Union, district 
council, UFCW.
    And I'd like to insert this for the record, if I may, Mr. 
Chairman.
    Chairman Walberg. Without objection, and hearing none, it 
will be inserted.
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    Mr. Sablan. And H.R. 2776, the so-called Employee Privacy 
Protection Act, mandates arbitrary waiting periods that delay 
elections and empower employers to gerrymander the voting 
composition of bargaining unions by adding employees who have 
expressed no interest in joining the union. So instead of 
relentlessly attacking voters' rights and retaliating against 
employees who want a union, the committee should be focusing on 
efforts to strengthen workers' rights to organize, raise the 
minimum wage, and provide paid sick days.
    I'd like to ask also unanimous consent, Mr. Chairman, to 
insert for the record a letter from the United Food and 
Commercial Workers Union, and the Retail, Wholesale, and 
Department Store Union District Council. If no objection, Mr. 
Chairman?
    Chairman Walberg. Without objection, it will be inserted.
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    Mr. Sablan. I would also like to ask unanimous consent that 
the graph used by Congressman Norcross be inserted in the 
record.
    Chairman Walberg. Without objection, it will be inserted.
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    Mr. Sablan. I also would like to ask unanimous consent that 
a press release from the New Illinois Members at Americold Win 
First Contract. I would like a letter from -- a press statement 
from RWDSU, the union, which won a five-year collective 
bargaining agreement of Americold in Illinois, because that 
document explains the union won better pay, scheduling, 
improvements, and a better -- and a stronger grievance process. 
And these gains would not have been possible had her coworkers 
followed the lead of Ms. Cox and the National Right To Work 
Committee and decertified.
    Chairman Walberg. Hearing no objection, that will be 
inserted as well.
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    Mr. Sablan. And finally, I would like to enter for the 
record -- I ask unanimous consent to enter for the record a 
letter from Mary Kay Henry on behalf of the 2 million members 
of SEIU opposing the three bills before us today. She notes 
these bills will lead to complete subversion of their 
elections.
    Chairman Walberg. Hearing no objection, that will be 
inserted.
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    Mr. Sablan. And, Mr. Chairman, despite that we may have 
disagreements, again, I am very grateful that you're following 
over regular order.
    I want to thank witnesses; we may have disagreements, but I 
think those disagreements are honest, and I respect that you 
took the time to prepare and come today. I apologize for the 
delay, it was unavoidable.
    And I yield the balance of my time.
    Chairman Walberg. I thank the gentleman.
    And I too want to thank the witnesses. You've added value 
to our discussions, and we know where to find you if we need 
any further information as well on either side of the issue.
    Let me just state very clearly for the record that this is 
not an attempt to eliminate unions, not at all. And sometimes 
it's classified as an either/or. That isn't the case.
    From my own experience, and subsequent to my time working 
at U.S. Steel South Works number two electric furnace, right 
down on the borders of Lake Michigan, unions have had some 
extremely positive impacts. And going back to the steel mills 
now and seeing the difference in some of the working conditions 
that I just took for granted, I'm, frankly, worried about it. 
It's changed.
    And there has been positive impact, I know, as a result of 
union efforts for their workers. But seeing the graph that was 
brought by Mr. Norcross earlier on, I would contend that 
there's also a rationale there that says that unions and the 
impact, the positive impact they've had, may indeed have had an 
interesting impact of workers seeing them work themselves out 
of their job. The benefits that have been achieved, and now 
saying, tell you what, like Ms. Cox, I would at least like to 
know how it's going to be better for me than what I have right 
now. And if indeed that justifies the union dues that will be 
taken out and also how those dues will be used relative to 
political efforts, et cetera.
    And I think that's what the three bills we're looking at 
today are going toward in saying let them make their choices 
with the fullest information possible, as fairly as possible 
from both sides, not rushed, not jammed through. And the people 
that are truly interested are the ones who will make the 
decisions on what comes forward. That's all we're asking.
    And this indeed is regular order in the process of 
discussion. So we'll continue it on, we'll see where it takes 
us from here. The bottom line, we want to make sure that 
everything we do here promotes more safer, more secure and 
increased number of opportunities of choice for employees to 
have with employers as well. And so we'll continue looking at 
this. I want to again say thank you.
    With no further issues to come before the subcommittee 
today, I call this meeting adjourned.
    [Additional submissions by Chairman Walberg follow:]
    
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    [Whereupon, at 2:48 p.m., the subcommittee was adjourned.]