[House Report 112-276]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-276

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



 
                  WORKFORCE DEMOCRACY AND FAIRNESS ACT

                                _______
                                

 November 10, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

     Mr. Kline, from the Committee on Education and the Workforce, 
                        submitting the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 3094]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 3094) to amend the National Labor 
Relations Act with respect to representation hearings and the 
timing of elections of labor organizations under that Act, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.
    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Workforce Democracy and Fairness 
Act''.

SEC. 2. TIMING OF ELECTIONS.

  Section 9 of the National Labor Relations Act (29 U.S.C. 159) is 
amended--
          (1) in subsection (b), by striking ``The Board shall decide'' 
        and all that follows through ``Provided, That the'' and 
        inserting: ``In each case, prior to an election, the Board 
        shall determine, in order to assure to employees the fullest 
        freedom in exercising the rights guaranteed by this Act, the 
        unit appropriate for the purposes of collective bargaining. 
        Unless otherwise stated in this Act, and excluding bargaining 
        unit determinations promulgated through rulemaking effective 
        before August 26, 2011, the unit appropriate for purposes of 
        collective bargaining shall consist of employees that share a 
        sufficient community of interest. In determining whether 
        employees share a sufficient community of interest, the Board 
        shall consider (1) similarity of wages, benefits, and working 
        conditions; (2) similarity of skills and training; (3) 
        centrality of management and common supervision; (4) extent of 
        interchange and frequency of contact between employees; (5) 
        integration of the work flow and interrelationship of the 
        production process; (6) the consistency of the unit with the 
        employer's organizational structure; (7) similarity of job 
        functions and work; and (8) the bargaining history in the 
        particular unit and the industry. To avoid the proliferation or 
        fragmentation of bargaining units, employees shall not be 
        excluded from the unit unless the interests of the group sought 
        are sufficiently distinct from those of other employees to 
        warrant the establishment of a separate unit. Whether 
        additional employees should be included in a proposed unit 
        shall be based on whether such additional employees and 
        proposed unit members share a sufficient community of interest, 
        with the sole exception of proposed accretions to an existing 
        unit, in which the inclusion of additional employees shall be 
        based on whether such additional employees and existing unit 
        members share an overwhelming community of interest and the 
        additional employees have little or no separate identity. 
        The''; and
          (2) in subsection (c)(1), in the matter following 
        subparagraph (B)--
                  (A) by inserting ``, but in no circumstances less 
                than 14 calendar days after the filing of the 
                petition'' after ``hearing upon due notice'';
                  (B) by inserting before the last sentence the 
                following: ``An appropriate hearing shall be one that 
                is non-adversarial with the hearing officer charged, in 
                collaboration with the parties, with the responsibility 
                of identifying any relevant and material pre-election 
                issues and thereafter making a full record thereon. 
                Relevant and material pre-election issues shall 
                include, in addition to unit appropriateness, the 
                Board's jurisdiction and any other issue the resolution 
                of which may make an election unnecessary or which may 
                reasonably be expected to impact the election's 
                outcome. Parties may raise independently any relevant 
                and material pre-election issue or assert any relevant 
                and material position at any time prior to the close of 
                the hearing.'';
                  (C) in the last sentence--
                          (i) by inserting ``or consideration of a 
                        request for review of a regional director's 
                        decision and direction of election,'' after 
                        ``record of such hearing''; and
                          (ii) by inserting ``to be conducted as soon 
                        as practicable but not less than 35 calendar 
                        days following the filing of an election 
                        petition'' after ``election by secret ballot''; 
                        and
                  (D) by adding at the end the following: ``Not earlier 
                than 7 days after final determination by the Board of 
                the appropriate bargaining unit, the Board shall 
                acquire from the employer a list of all eligible voters 
                to be made available to all parties, which shall 
                include the employee names, and one additional form of 
                personal employee contact information (such as 
                telephone number, email address or mailing address) 
                chosen by the employee in writing.''.

                                Purpose

    H.R. 3094, the Workforce Democracy and Fairness Act, seeks 
to narrowly preempt the National Labor Relations Board's (NLRB 
or Board) June 22, 2011, rulemaking on election procedures and 
reverse its August 26, 2011 decision in Specialty Healthcare 
and Rehabilitation Center of Mobile, which limits employee free 
choice and employer free speech, and will fracture the 
workforce. This bill will codify the traditional standard for 
determining an appropriate bargaining unit and the traditional 
standard used to challenge a petitioned-for bargaining unit, 
require the Board to rule on challenges to composition of the 
bargaining unit prior to the election, ensure employers have at 
least 14 days to prepare for a pre-election hearing, allow 
parties to raise relevant and material pre-election issues as 
the pre-election hearing record is developed, ensure parties 
may request pre-election Board review of regional director's 
decisions, provide employees with at least 35 days to consider 
whether they wish to be represented by a union, and permit 
employees to choose what personal information is provided to 
the union. The Workforce Democracy and Fairness Act will ensure 
employee free choice, employer free speech, and workforce 
cohesion.

                            Committee Action


Subcommittee hearing highlights concerns about the NLRB's harmful 
        actions

    On February 11, 2011, the Subcommittee on Health, 
Employment, Labor and Pensions held a hearing examining the 
``Emerging Trends at the National Labor Relations Board.'' The 
hearing examined controversial and precedent-changing NLRB 
holdings and invitations for briefs (including Specialty 
Healthcare), the NLRB's December 22, 2010, Notice of Proposed 
Rulemaking mandating employers hang a vague and biased poster 
regarding union rights at work, and new policies issued by 
Acting NLRB General Counsel Lafe Solomon. Witnesses at this 
hearing included Mr. Philip A. Miscimarra, Partner, Morgan, 
Lewis & Bockius LLP, Chicago, Illinois; Mr. Arthur Rosenfeld, 
Former National Labor Relations Board General Counsel, 
Alexandria, Virginia; Mr. G. Roger King, Partner, Jones Day, 
Columbus, Ohio; and Ms. Cynthia Estlund, Professor of Law, New 
York University School of Law, New York, New York.

Full committee hearing investigates NLRB's unprecedented rulemaking

    On July 7, 2011, the Committee on Education and the 
Workforce held a hearing entitled ``Rushing Union Elections: 
Protecting the Interests of Big Labor at the Expense of 
Workers' Free Choice,'' on the NLRB's proposed election 
procedure regulation. Witnesses before the committee agreed 
that the cumulative changes of the proposal would significantly 
hinder an employer's ability to communicate with his or her 
employees and cripple an employee's right to choose whether to 
be represented by a labor organization. Witnesses before the 
panel were The Honorable Peter C. Schaumber, Former NLRB 
Chairman, Washington, D.C.; Mr. Larry Getts, Tube Press 
Technician, Dana Corporation, Garrett, Indiana; Mr. John Carew, 
President, Carew Concrete & Supply Company, Appleton, 
Wisconsin, testifying on behalf of himself and the National 
Ready Mixed Concrete Association; Mr. Michael J. Lotito, 
Attorney, Jackson Lewis LLP, San Francisco, California; and Mr. 
Kenneth Dau-Schmidt, Professor, Indiana University, Maurer 
School of Law, Bloomington, Indiana.

Full committee hearing explores NLRB's decision to disenfranchise 
        employees in union elections

    On September 22, 2011, the Committee on Education and the 
Workforce held a hearing on the ``Culture of Union Favoritism: 
Recent Actions of the National Labor Relations Board.'' At the 
end of August 2011, the NLRB issued a number of biased anti-
worker decisions, including Specialty Healthcare, Lamons 
Gasket, and UGL-UNICCO. Additionally, the Board finalized a 
rule requiring almost every employer to post a vague, union-
biased notice on employee National Labor Relations Act (NLRA) 
rights. The Board's unbridled overreach of authority demanded a 
complete examination by the committee. Witnesses before the 
committee included Mr. Curtis L. Mack, Partner, McGuire Woods 
LLP, Atlanta, Georgia; Ms. Barbara A. Ivey, Employee, Kaiser 
Permanente, Keizer, Oregon; Mr. Arthur J. Martin, Partner, 
Schuchat, Cook & Werner, St. Louis, Missouri; and Mr. G. Roger 
King, Partner, Jones Day, Columbus, Ohio.

Committee introduces legislation

    On October 5, 2011, Chairman Kline introduced H.R. 3094, 
the Workforce Democracy and Fairness Act with 26 cosponsors. 
Recognizing that the NLRB has gone far beyond an adjudicative 
body designed to implement congressional intent under the NLRA, 
legislation was necessary to: (1) reinstate the traditional 
standard for determining which employees make up an appropriate 
bargaining unit; (2) ensure employers are able to participate 
in a fair union election; (3) guarantee workers have the 
ability to make a fully informed decision in a union election; 
and (4) safeguard employee privacy by allowing workers to 
decide the type of personal information provided to a union.

Legislative hearing considers bill in statutory context

    On October 12, 2011, the committee held a legislative 
hearing on H.R. 3094, the ``Workforce Democracy and Fairness 
Act.'' Witnesses testified that the Board had overturned 
decades of precedent to facilitate union organizing at the cost 
of employee free choice and employer free speech. These actions 
could have devastating economic consequences for the country. 
Witnesses included the Honorable Charles Cohen, Senior Counsel, 
Morgan, Lewis and Bockius LLP, and Former Member, National 
Labor Relations Board, Washington, D.C.; Mr. Robert Sullivan, 
President, RG Sullivan Consulting, Westmoreland, New Hampshire, 
testifying on behalf of the Retail Industry Leaders 
Association; Mr. Michael J. Hunter, Partner, Hunter, Carnahan, 
Shoub, Byard and Harshman, Columbus, Ohio; and Mr. Phillip 
Russell, Attorney, Ogletree Deakins, Tampa, Florida.

Committee passes H.R. 3094, Workforce Democracy and Fairness Act

    On October 26, 2011, the Committee on Education and the 
Workforce considered H.R. 3094, the Workforce Democracy and 
Fairness Act. Chairman Kline offered an amendment in the nature 
of a substitute, clarifying that years of labor policies 
affecting the acute health care industry remain in place; 
limiting pre-election issues to those that are relevant and 
material; and reaffirming the Board's responsibility to grant 
or deny requests for review of regional directors' decisions 
before the election. Nine additional amendments were offered 
and debated; however, no additional amendments were adopted. 
The committee favorably reported H.R. 3094 to the House of 
Representatives by a vote of 23-16.

                                Summary

    The Workforce Democracy and Fairness Act, H.R. 3094, would 
codify the traditional standard for determining an appropriate 
bargaining unit and the traditional standard used to challenge 
a petitioned-for bargaining unit, require the Board to rule on 
challenges to composition of the bargaining unit prior to the 
election, ensure employers have at least 14 days to prepare for 
a pre-election hearing, allow parties to raise relevant and 
material pre-election issues as the pre-election hearing record 
is developed, ensure parties may request pre-election Board 
review of a regional director's decisions, provide employees 
with at least 35 days to consider whether they wish to be 
represented by a union, and permit employees to choose what 
personal information is provided to the union.
    The legislation is designed to be a narrow reversal of the 
NLRB's August 26, 2011, decision in Specialty Healthcare and 
Rehabilitation Center of Mobile and preempt the NLRB's June 22, 
2011 proposed election procedures without upsetting any other 
current law. The legislation will ensure cohesion in the 
workplace, employee free choice, and employer free speech.

                            Committee Views

    In 1935, Congress passed the National Labor Relations Act 
(NLRA), guaranteeing the right of most private sector 
employees\1\ to organize and select their own representative. 
Twelve years later, in 1947, Congress passed the most 
significant amendment of the NLRA, the Taft-Hartley Act,\2\ 
abandoning ``the policy of affirmatively encouraging the spread 
of collective bargaining . . . striking a new balance between 
protection of the right to self-organization and various 
opposing claims.''\3\ Among other things, the Taft-Hartley Act 
made clear that employees had the right to refrain from 
participating in union activity,\4\ created new union unfair 
labor practices,\5\ codified employer free speech,\6\ and made 
changes to the determination of bargaining units.\7\
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    \1\The NLRA does not cover all employees and employers in the 
United States. For example, public sector employers (state, local, and 
federal employees), employers covered by the Railway Labor Act 
(airlines and railroads), agricultural labor, and supervisors are not 
covered by the act. 29 U.S.C. Sec. 152(2).
    \2\29 U.S.C. Sec. 141 et seq.
    \3\Archibald Cox, Some Aspects of the Labor Management Relations 
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
    \4\29 U.S.C. Sec. 157.
    \5\Id. Sec. 158.
    \6\Id. Sec. 158(c).
    \7\Id. Sec. 159(d).
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    The NLRA established the National Labor Relations Board 
(NLRB), an independent federal agency, to fulfill two principal 
functions: (1) prevent and remedy employer and union unlawful 
acts (called unfair labor practices or ULPs), and (2) determine 
by secret ballot election whether employees wish to be 
represented by a union. In determining whether employees wish 
to be represented by a union, the NLRA is wholly neutral.\8\
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    \8\NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973).
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               CURRENT REPRESENTATIONAL ELECTION PROCESS

    Section 9 of the NLRA broadly lays out the rules under 
which employees exercise their right to select or reject a 
union through a secret ballot.\9\ In general, NLRB rulings, 
regulations, or internal policies establish specific 
representational election procedures.\10\
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    \9\29 U.S.C. Sec. 159.
    \10\76 Fed. Reg. 36812 (June 22, 2011).
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    The representation election process begins when employees, 
an employer, or a labor organization files a petition for an 
investigation and certification of the representatives 
(petition) with the NLRB's regional office.\11\ If filed by 
employees or a labor organization, the petitioner should 
present within 48 hours of filing evidence that 30 percent of 
employees in the proposed bargaining unit support the petition, 
typically through signed and dated authorization cards.\12\
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    \11\National Labor Relations Board Casehandling Manual 
para.11002.2-11002.3.
    \12\Id. para.11003.1 and 11023.1.
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    Upon receipt of the petition, the regional director\13\ 
issues a notice of hearing and serves the following on the 
employer: the petition, a Notice to Employees, a generic notice 
of employees' rights, and a Questionnaire on Commerce, which 
seeks information relevant to the Board's jurisdiction.\14\ 
Additionally, the regional director will ordinarily request a 
list of employees in the petitioned-for unit with their job 
classifications to determine whether 30 percent of employees 
are interested in representation and the employer's position as 
to the appropriateness of the unit described in the 
petition.\15\ To limit delay, if the list is untimely or not 
filed, absent unusual circumstances, the Board will assume the 
number of unit employees estimated is accurate and the 
individuals are among those employed in the unit.\16\
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    \13\While the Board is responsible for conducting secret ballot 
elections, in 1961, it delegated the bulk of its authority over 
election cases to its regional directors. The regional directors: (1) 
decide whether a question concerning representation exists; (2) 
determines the appropriate bargaining unit; (3) directs the election; 
(4) certifies the results of the election; and (5) makes findings and 
issues rulings on objections and challenged ballots.
    \14\Id. para.11009.
    \15\Id. para.11009.1.
    \16\Id. para.11009.2.
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    These official requests by the regional director are 
followed up by telephone consultations, personal meetings, and 
joint conference calls with the parties before the pre-election 
hearing to resolve outstanding issues and secure an election 
agreement.\17\ If parties can agree on representational issues, 
they may enter into one of three types of election agreements: 
the consent election agreement, the stipulated election 
agreement, and the full consent election agreement.\18\ In 
consent agreements, post-election issues are decided by the 
regional director.\19\ In stipulated agreements, they are 
determined by the Board.\20\ In 2010, 92.1 percent of initial 
NLRB representational elections were held pursuant to agreement 
of the parties.\21\
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    \17\Id. para.11012.
    \18\Id. para.11084.
    \19\Id. para.11084.1.
    \20\Id.
    \21\General Counsel Memorandum 11-03, 5 (Jan. 10, 2011).
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    In those rare cases, less than 10 percent, in which parties 
cannot reach an election agreement, a Board agent will hold a 
pre-election hearing to develop record evidence upon which the 
Board may discharge its duties under Section 9 of the NLRA.\22\ 
The hearing is investigatory and non-adversarial.\23\ Parties 
may present evidence on issues including the Board's 
jurisdiction, the existence of any bars to an election, the 
appropriateness of the unit, and eligibility of particular 
employees to vote.\24\ The employer may petition for inclusion 
of additional employees in the bargaining unit by showing that 
the additional employees share a ``sufficient community of 
interest'' with the petitioned-for unit. To expedite the 
process, in general, the hearing is held on consecutive days 
until completion\25\ and issues are limited to pre-election 
issues\26\ that are genuinely in dispute.\27\ Postponement 
requests are granted only under the most compelling 
circumstances.\28\
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    \22\National Labor Relations Board Casehandling Manual para.11181.
    \23\Id.
    \24\76 Fed. Reg. 36812, 36818 (June 22, 2011).
    \25\National Labor Relations Board Casehandling Manual para.11008.
    \26\Excludes issues such as alleged violations of federal statutes, 
the adequacy of the showing of interest, and alleged unfair labor 
practices, unless such matters are material to the issue of whether a 
question concerning representation exists.
    \27\If a party refuses to state its position on an issue and no 
controversy exists, the party may be foreclosed from presenting 
evidence on that issue. Mariah, Inc. 322 NLRB 586 (1996); Bennett 
Industries, 313 NLRB 1363 (1994).
    \28\National Labor Relations Board Casehandling Manual para.11207.
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    In most cases, the regional director issues a decision 
based on the record developed at the pre-election hearing.\29\ 
Within the decision, the Board is statutorily obligated to 
determine the appropriate bargaining unit.\30\ In general, the 
Board applies the ``sufficient community of interest'' standard 
to determine the appropriateness of the bargaining unit. To 
determine whether employees share a sufficient community of 
interest, the Board evaluates a number of factors, including 
whether the employees are organized into a separate department 
and skills and training.\31\ After finding the unit shares a 
sufficient community of interest, the Board proceeds to 
determine whether the interests of the group sought are 
sufficiently distinct from those of other employees to warrant 
the establishment of a separate unit.\32\ In most cases, the 
regional director will either direct an election or dismiss the 
petition. Under these procedures, in 2009, the median time 
between: (1) the notice of hearing and the close of the pre-
election hearing was 13 days, and (2) the close of the pre-
election hearing and the regional director's decision was 19 
days.\33\ In 2010, regional directors issued 185 pre-election 
decisions in contested representations cases in a median of 37 
days.\34\
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    \29\Id. para.11273.
    \30\Allen Health Care Services, 332 NLRB No. 134 (2000).
    \31\Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962); United 
Operations Inc., 338 NLRB No. 18 (2002).
    \32\Seaboard Marine, Ltd., 327 NLRB No. 108 (1999), Brand Precision 
Services, 313 NLRB 657 (1994); Transerv Systems, 311 NLRB 766 (1993).
    \33\Seventy Fourth Annual Report of the National Labor Relations 
Board for the fiscal year ended September 30, 2009, National Labor 
Relations Board, page 152, available at http://www.nlrb.gov/sites/
default/files/documents/119/nlrb2009.pdf.
    \34\General Counsel Memorandum 11-03, 7 (Jan. 10, 2011).
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    Within seven days of the regional director's pre-election 
decision or approval of the election agreement, the employer 
must file the ``Excelsior list'' with the regional 
director.\35\ The list must include the full names and 
addresses of all employees who will vote in the election.\36\ 
The regional director makes the list available to all parties. 
Unless waived, the non-employer parties, including the union(s) 
seeking representation, must have at least 10 days to review 
the list prior to the election.\37\
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    \35\National Labor Relations Board Casehandling Manual para.11312.
    \36\Id. para.11312.
    \37\Id.
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    To ensure uniform and consistent application, parties may 
appeal the regional director's pre-election decision by filing 
a request for review with the Board within 14 days of the 
issuance of the decision.\38\ The Board will grant the request 
if a ``compelling reason'' exists.\39\ To ensure the Board has 
an opportunity to rule on a request for review, the regional 
director ``will normally not schedule an election until a date 
between the 25th and 30th day after the date of the 
decisions.''\40\
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    \38\National Labor Relations Board Casehandling Manual para.11274 
and 11364.5.
    \39\NLRB Rules and Regulations 102.67(c), requests may be granted 
only upon one or more of the following grounds:
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      (1) A substantial question of law or policy is raised 
      because of the absence of or the departure from officially 
      reported Board precedent;
      (2) The regional director's decision on a substantial 
      factual issue is clearly erroneous on the record and such 
      error prejudicially affects the rights of a party;
      (3) The conduct of the hearing or any ruling made in 
      connection with the proceeding has resulted in prejudicial 
      error; or
      (4) Compelling reasons exist for reconsideration of an 
      important Board rule or policy.
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    \40\29 CFR 101.21(d).
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    While complicated, the current Board process has been 
effective in expediting the resolution of questions concerning 
representation while maintaining the rights of both employees 
and employers. For all petitions filed in 2010, the average 
time from the filing of a petition to an election was 31 
days,\41\ and the median time was 38 days.\42\ More than 95 
percent of all initial elections were conducted within 56 days 
of the filing of the election petition.\43\ Acting NLRB General 
Counsel Solomon has described these results as 
``outstanding.''\44\ Unions won almost two-thirds of 
representational elections in calendar year 2010.\45\
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    \41\Notice of Proposed Rulemaking, Representation--Case Procedures, 
76 Fed. Reg. 36812, 77 (June 22, 2011). Available at http://
www.nlrb.gov/sites/default/files/documents/525/2011-15307_pi_2.pdf.
    \42\General Counsel Memorandum 11-03, 7 (Jan. 10, 2011).
    \43\General Counsel Memorandum 11-03 at ``introduction'' (Jan. 10, 
2011).
    \44\Id.
    \45\NLRB Graphs & Data, available at http://www.nlrb.gov/
chartsdata/petitions#chart9tag (last visited on Nov. 2, 2011).
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                 NEW REPRESENTATIONAL ELECTION PROCESS

    Despite the success of the existing election procedures, on 
June 22, 2011, the NLRB proposed significant changes to the 
representational election process that will dramatically 
shorten the time between the filing of the petition and the 
representational election, and limit the opportunity for a full 
evidentiary hearing or Board review on contested issues.\46\ 
Two months later, on August 26, 2011, the NLRB majority, 
overturning decades of precedent, articulated a new standard 
for determining employee bargaining units that will fragment 
the workplace. Taken together, the Board's actions will limit 
employee free choice and employer free speech, and fracture the 
workforce.
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    \46\76 Fed. Reg. 36812, 36831 (June 22, 2011).
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June 22, 2011, Proposed Rulemaking

    According to the Board, it has proposed the new 
representational election process to ``remove unnecessary 
barriers to the fair and expeditious resolution of questions 
concerning representation.''\47\ To achieve these ends, in 
addition to some minor changes, such as electronic filing, the 
Board will replace the Questionnaire on Commerce Information 
with a Statement of Positions, set pre-election hearings to 
begin seven days after the petition is filed, delay voter 
eligibility issues until after the election, eliminate pre-
election Board review, and revise the Excelsior list to require 
employers to provide greater employee information in a shorter 
timeframe.\48\
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    \47\Id. at 36817.
    \48\Id. at 36812.
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    The Questionnaire on Commerce Information, which seeks 
information relevant to the Board's jurisdiction, will be 
replaced by a Statement of Positions. The Statement of 
Positions will solicit the parties' position on the Board's 
jurisdiction; the appropriateness of the petitioned-for unit; 
any proposed exclusions from the petitioned-for unit; the 
existence of any bar to the election; the types, dates, times, 
and locations of the election; and any other issues that a 
party intends to raise at the hearing.\49\ With few exceptions, 
issues that are not raised in the Statement of Position will be 
waived.\50\ The Statement of Positions would be due no later 
than the date of the pre-election hearing, that is, seven days 
from the filing of the petition.\51\ In the Board's opinion, 
these changes will ``assist parties in identifying issues that 
must be resolved at a pre-election hearing and thereby 
facilitate entry into election agreements.''\52\
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    \49\Id. at 36821.
    \50\Id.
    \51\Id.
    \52\76 Fed. Reg. at 36821.
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    Under the proposed rule, resolution of disputes concerning 
the eligibility or inclusion of individual employees that 
represent less than 20 percent of the unit will be resolved, if 
necessary, after the election.\53\ According to the Board, the 
``adoption of a bright-line numerical rule requiring that 
questions concerning the eligibility or inclusion of 
individuals constituting no more than 20 percent of all 
potentially eligible voters be litigated and resolved, if 
necessary, post-election, best serves the interests of the 
parties and employees as well as the public interest in 
efficient administration of the representation case 
process.''\54\
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    \53\76 Fed. Reg. at 36823.
    \54\76 Fed. Reg. at 36825.
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    The proposed rule would eliminate pre-election Board 
review.\55\ All pre-election rulings, if not rendered moot, 
would remain subject to Board review post-election.\56\ 
Regional directors would no longer be required to provide at 
least 25 days between the issuance of the decision and the 
election for Board review.\57\ The Board anticipates ``that the 
proposed amendments would eliminate unnecessary litigation 
concerning issues that may be and often are rendered moot by 
the election results and thereby reduce the expense of 
participating in representation proceedings for the parties as 
well as the government.''\58\
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    \55\Id. at 36826
    \56\Id.
    \57\29 C.F.R. 101.21(d).
    \58\76 Fed. Reg. at 36826.
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    To facilitate communication between unions and employees, 
the Board has proposed adding additional information to the 
``Excelsior list'' and cutting the timeframe for its 
production.\59\ In addition to employee names and addresses, 
the employer must provide unit employee phone numbers, email 
addresses, work locations, shift information, and 
classification.\60\ Absent extraordinary circumstances or party 
agreement, this information must be provided to the union 
within two days of the regional director's decision or approval 
of the election agreement.\61\
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    \59\Id. at 36820.
    \60\Id. at 36820.
    \61\Id. at 36821.
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    On June 22, 2011, the Board majority ``announced its intent 
to provide a more expeditious preelection process and a more 
limited postelection process that tilts heavily against 
employers' rights to engage in legitimate free speech and to 
petition the government for redress.''\62\ The Board's majority 
asserts the proposed rule has been implemented to ``remove 
unnecessary barriers to the fair and expeditious resolution of 
questions concerning representation.''\63\ However, the Board 
has made no ``attempt to identify particular problems in cases 
where the process has failed.''\64\ Based on Member Hayes's 
experience, ``vacancies or partisan shifts in Board membership 
and the inability of the Board itself to deal promptly with 
complex legal and factual issues have delayed final resolution 
far more often than any systematic procedural problems or 
obstructionist legal tactics.''\65\ Former NLRB Chairman Peter 
Schaumber agreed that the election process was not the source 
of delays.\66\ According to Member Hayes, the ``problem'' the 
Board seeks to address with this rule ``is not that the 
representation election process generally takes too long, [i]t 
is that unions are not winning more elections . . . The [Board] 
majority [has] act[ed] in apparent furtherance of the interests 
of a narrow constituency, [unions], and at the great expense of 
undermining public trust in the fairness of Board 
elections.''\67\
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    \62\Id. at 36831.
    \63\Id. at 36817.
    \64\Id.
    \65\Id. at 36831.
    \66\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the House 
Education and the Workforce Committee, 112th Cong., 1st Sess. at 77 
(2011).
    \67\Notice of Proposed Rulemaking, Representation--Case Procedures, 
76 Fed. Reg. 36812, 80 (June 22, 2011), available at http://
www.nlrb.gov/sites/default/files/documents/525/2011-15307_pi_2.pdf.
---------------------------------------------------------------------------

Specialty Healthcare and Rehabilitation Center of Mobile

    On August 26, 2011, in Specialty Healthcare and 
Rehabilitation Center of Mobile,\68\ the NLRB majority 
articulated a new standard for determining the composition of 
bargaining units. Under the new standard, if the union-proposed 
bargaining unit is made up of a readily identifiable group\69\ 
and the Board finds the employees in the group share a 
community of interest, the Board will find the proposed unit 
appropriate.\70\ Any party seeking to enlarge the unit must 
demonstrate that employees in the larger unit share an 
``overwhelming community of interest'' with those in the 
petitioned-for unit.\71\ The Board will no longer determine 
whether the interests of the group sought are sufficiently 
distinct from those of other employees to warrant the 
establishment of a separate unit.\72\ While the underlying case 
dealt specifically with non-acute health care, the Board 
decision significantly affects all industries.\73\ NLRB 
regional offices ``will have little option but to find almost 
any petitioned-for unit appropriate.''\74\ In the opinion of 
former NLRB region 10 director Curtis Mack, ``a regional 
director looking at a representation petition would be 
compelled to hold a representation election for any unit 
supported by the union.''\75\ Under the new standard, unions 
will organize into units as small as possible and ``it [will 
be] virtually impossible for a party opposing th[e] unit to 
prove that any excluded employees should be included.''\76\
---------------------------------------------------------------------------
    \68\357 NLRB No. 83 (Aug. 26, 2011).
    \69\Such as employees that make up a job classification, 
department, or work locations.
    \70\357 NLRB No. 83, 12 (Aug. 26, 2011).
    \71\Id. at 6.
    \72\Id. at 12.
    \73\Id. at 18.
    \74\Id. at 20.
    \75\Culture of Union Favoritism: Recent Actions of the National 
Labor Relations Board, Hearing before the House Education and the 
Workforce Committee, 112th Cong., 1st Sess. at 13 (2011) (written 
testimony of Curtis Mack) [hereinafter Mack Testimony].
    \76\Id. at 19.
---------------------------------------------------------------------------

      IMPLICATIONS OF THE NEW REPRESENTATIONAL ELECTION PROCEDURE

    The June 22, 2011, NLRB rulemaking will restrict an 
employer's ability to communicate with his or her employees, 
cripple an employee's ability to make an informed decision as 
to unionization, increase litigation and decrease election 
agreements, and encroach on employee privacy. The August 26, 
2011, Specialty Healthcare decision will fracture workplaces, 
increasing labor costs and decreasing employee opportunities.

Limited opportunity for a robust debate and employee free choice

    Congress recognized the value of employer speech and a 
robust debate when it added section 8(c) to the NLRA.\77\ The 
Supreme Court noted Congress's express protection of free 
debate:
---------------------------------------------------------------------------
    \77\29 U.S.C. Sec.  158(c). The expressing of any views, argument, 
or opinion, or the dissemination thereof, whether in written, printed, 
graphic, or visual form, shall not constitute or be evidence of an 
unfair labor practice under any of the provisions of this Act 
[subchapter], if such expression contains no threat of reprisal or 
force of promise of benefit.
---------------------------------------------------------------------------
    From one vantage, Sec. 8(c) ``merely implements the First 
Amendment,'' NLRB v. Gissel Packing Co., 395 U.S. 575, 617, 89 
S.Ct. 1918, 23 L.Ed.2d 547 (1969), in that it responded to 
particular constitutional rulings of the NLRB. See S.Rep. No. 
80-105, pt. 2, pp. 23-24 (1947). But its enactment also 
manifested a ``congressional intent to encourage free debate on 
issues dividing labor and management.'' Linn v. Plant Guard 
Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966). 
It is indicative of how important Congress deemed such ``free 
debate'' that Congress amended the NLRA rather than leaving to 
the courts the task of correcting the NLRB's decisions on a 
case-by-case basis. We have characterized this policy judgment, 
which suffuses the NLRA as a whole, as ``favoring uninhibited, 
robust, and wide-open debate in labor disputes,'' stressing 
that ``freewheeling use of the written and spoken word . . . 
has been expressly fostered by Congress and approved by the 
NLRB.'' Letter Carriers v. Austin, 418 U.S. 264, 272-273, 94 
S.Ct. 2770, 41 L.Ed.2d 745 (1974).\78\
---------------------------------------------------------------------------
    \78\Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008).
---------------------------------------------------------------------------
    While non-coercive, non-threatening employer speech will 
continue to be protected by section 8(c) of the NLRA, the 
proposed election procedures will effectively eliminate an 
employer's opportunity to communicate with its employees. Under 
the proposed election procedures, representational elections 
will be held in as little as 10 days.\79\ The employer will 
spend the first seven days finding legal representation and 
preparing for the pre-election hearing, leaving as little as 
three days to educate employees and rebut misinformation.
---------------------------------------------------------------------------
    \79\76 Fed. Reg. 36831.
---------------------------------------------------------------------------
    In contrast, the union seeking to organize employees will 
have weeks, maybe months, to covertly sell the union's position 
while collecting authorization cards. Unlike the employer, the 
union can promise employees increased wages, benefits, vacation 
time, etc. with few restrictions under the law.\80\ While 
employees are likely to receive extensive information from the 
union on the benefits of unionization, the employee is unlikely 
to receive information from the union on the union's political 
or social agenda, dues, or the effects unionization can have on 
their employer's profitability or market competitiveness.\81\ 
When the union has garnered sufficient support, it selects the 
date and time for filing the petition.\82\
---------------------------------------------------------------------------
    \80\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the Education 
and the Workforce Committee, 112th Cong., 1st Sess. at 15 (2011) 
(written testimony of Peter Schaumber) [hereinafter Schaumber 
Testimony].
    \81\Id.
    \82\Id.
---------------------------------------------------------------------------
    At the House Education and the Workforce Committee's July 
7, 2011, hearing, entitled ``Rushing Union Elections: 
Protecting the Interests of Big Labor at the Expense of 
Workers' Free Choice,'' John Carew, president of Carew Concrete 
and Supply Co., described his experience with a union 
organizing drive and election. In mid-September 1999 during one 
of his company's busiest times of year, the NLRB informed Carew 
Concrete that a union was attempting to organize their entire 
employee base.\83\ This was the first time Mr. Carew had heard 
about the organizing drive.\84\ During the organizing drive at 
Carew Concrete:
---------------------------------------------------------------------------
    \83\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the Education 
and the Workforce Committee, 112th Cong., 1st Sess. at 3 (2011) 
(written testimony of John Carew) [hereinafter Carew Testimony].
    \84\Id.

          [E]mployees would receive mail containing not enough 
        information, misinformation, and misleading information 
        on issues such as striking, health care insurance, 
        wages and pensions. At times employees were 
        inaccurately told they would receive increased wages, 
        similar to cities with higher wages nearly 100 miles 
        away.\85\
---------------------------------------------------------------------------
    \85\Id.

    Mr. Carew was forced to temporarily shut down portions of 
his business to educate supervisors and managers, ensure they 
did not violate the NLRA, and counter misinformation.\86\
---------------------------------------------------------------------------
    \86\Id.
---------------------------------------------------------------------------
    At the same hearing, Larry Getts, an employee of the Dana 
Corporation, described his experience with union organizers:
          [Organizers stated] that our shop would make the same 
        as the workers in the other--much larger--Fort Wayne 
        plant. . .[T]hat did not seem plausible because we were 
        making twelve dollars an hour, and in Fort Wayne they 
        were making twenty-one dollars an hour. Of course, much 
        of what they told us proved to be false, but it's fair 
        to say we weren't lacking information from union 
        officials.\87\
---------------------------------------------------------------------------
    \87\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the Education 
and the Workforce Committee, 112th Cong., 1st Sess. at 2 (2011) 
(written testimony of Larry Getts) [hereinafter Getts Testimony].

    While Mr. Getts stated that he and his fellow employees 
would have appreciated hearing the views of his employer, he 
did not benefit from a robust debate.\88\ His employer had 
signed a neutrality agreement.\89\ Since they were not hearing 
opposing points of view, Mr. Getts took it upon himself to 
research and verify everything they were told.\90\
---------------------------------------------------------------------------
    \88\Id.
    \89\Id.
    \90\Id.
---------------------------------------------------------------------------
    The expedited timeframe for representational elections 
contemplated in the June 22, 2011, rulemaking will effectively 
eliminate employer speech and deprive employees of the right to 
make a fully informed decision on whether to be represented by 
a labor organization.

Increased controversy during representational elections

    The new Statement of Positions, combined with the new 
timeframe for the start of the pre-election hearing and delays 
in unit composition determinations, will increase controversy 
during representational elections and decrease election 
agreements, increasing costs for employers and taxpayers.
    As outlined above, the June 22, 2011, proposed rule will 
require parties to complete a Statement of Positions within 
seven days of receiving the election petition. With few 
exceptions, failure to state a position will preclude a party 
from raising the issue at the pre-election hearing. Robert 
Sullivan, testifying on behalf of the Retail Industry Leaders 
Association (RILA) at the October 12, 2011 hearing, stated that 
these requirements ``will wreak havoc with small and large 
employers.''\91\ Small employers will have access to factual 
information, but they will not have in-house experts to 
evaluate the legal issues.\92\ In contrast, large employers 
will have the advantage of having in-house experts or access to 
outside experts, but their size will complicate legal 
issues.\93\
---------------------------------------------------------------------------
    \91\H.R. 3094, The Workforce Democracy and Fairness Act, Hearing 
before the Committee on Education and the Workforce, 112th Cong., 1st 
Sess. at 8 (2012) (written testimony of Robert Sullivan) [hereinafter 
Sullivan Testimony].
    \92\Id.
    \93\Id. at 9.
---------------------------------------------------------------------------
    With only seven days to prepare the Statement of Positions 
for the start of the pre-election hearing, there is little 
opportunity for election agreements.\94\ To ensure no issues 
are waived, employers will spend their time preserving their 
positions rather than working with the regional director to 
reach a voluntary election agreement.\95\ Former NLRB Chairman 
Schaumber stated that ``the sum total of these rules is you are 
going have far fewer pre-election agreements.\96\ Unable to 
secure election agreements, the NLRB will be forced to hold 
more pre-election hearings on every possible issue in 
controversy, increasing both taxpayer and employer legal costs.
---------------------------------------------------------------------------
    \94\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the Education 
and the Workforce Committee, 112th Cong., 1st Sess. at 44 (2011).
    \95\Id.
    \96\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice, Hearing before the Education 
and the Workforce Committee, 112th Cong., 1st Sess. at 78-79 (2011).
---------------------------------------------------------------------------
    Delaying unit composition issues until after the election 
could increase the number of rerun elections. Pro-union 
activity by supervisors may taint the election if employees 
falsely conclude that the employer favors the union or 
employees support the union out of fear of retaliation.\97\ In 
these cases, the Board may set aside an election. Undoubtedly, 
pro-union activity by supervisors improperly included in the 
bargaining unit will be more common under the proposed rules, 
resulting in more elections being set aside. In cases where the 
character or scope of the bargaining unit changes 
significantly, a number of courts have ordered a new election, 
finding that employees were effectively denied the right to 
make an informed choice in the representational election.\98\ 
Every rerun election and unfair labor practice charge will cost 
taxpayer dollars and increase employer legal costs.
---------------------------------------------------------------------------
    \97\Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st Cir. 1981).
    \98\NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir. 
1985); NLRB v. Beverly Health and Rehabilitation Services, 120 F.3d 262 
(4th Cir. 1977).
---------------------------------------------------------------------------

Encroach on employee privacy

    The inclusion of employee phone numbers and email addresses 
will unnecessarily encroach on employee privacy. Under current 
rules, labor organizations have multiple avenues through which 
they may contact employees to encourage union support. In 
general, employees may solicit support in the workplace during 
non-work time, including breaks and lunch.\99\ Given the fact 
that unions win almost two-thirds of representational 
elections, employee phone numbers and email addresses are not 
essential to secure employee support.
---------------------------------------------------------------------------
    \99\Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
---------------------------------------------------------------------------
    Many, if not all, employees would object to an employer 
providing their phone number and email address to any third 
party. Not surprisingly, Mr. Getts stated that he would object 
to his employer providing his phone number and email address to 
a union.\100\ While not a perfect analogy, the ``Do Not Call'' 
list gives some insight into American sentiment on this issue. 
In 2007, 72 percent of Americans had registered on the ``Do Not 
Call'' list.\101\
---------------------------------------------------------------------------
    \100\Getts Testimony at 2-3.
    \101\2009 Economic Report of the President at 244, White House 
(2009), available at http://georgewbush-whitehouse.archives.gov/cea/
ERP_2009_Ch9.pdf.
---------------------------------------------------------------------------

Fragmentation of the Workforce

    The new standard for determining the composition of an 
appropriate bargaining unit, adopted in Specialty Healthcare, 
will allow unions to gerrymander the bargaining unit, encourage 
incremental organizing of the smallest units possible, and lead 
to fragmentation in the workplace. As noted above, under the 
new standard, regional directors will be compelled to approve 
any unit supported by the union and employer challenges will be 
difficult, if not impossible, permitting unions to limit 
organizing to those employees that support the union.\102\ 
Instead of one unit, employers will be faced with multiple 
small units.
---------------------------------------------------------------------------
    \102\Specialty Healthcare, 357 NLRB No. 83 at 19.
---------------------------------------------------------------------------
    Additionally, fragmentation will increase labor costs. As 
the number of units within a business increases, labor costs 
and the risk of strikes increase. Rather than negotiating once 
every three years, the employer may be forced to negotiate 
collective bargaining agreements every year or multiple times a 
year. Each negotiation includes the possibility of a strike, 
disrupting operations and damaging customer relations.\103\
---------------------------------------------------------------------------
    \103\Sullivan Testimony at 4.
---------------------------------------------------------------------------
    Moreover, this proposal is detrimental to workers. Drawing 
lines between departments limits flexibility and employee 
opportunities. As explained by Robert Sullivan during the 
October 12, 2011, House Education and the Workforce Committee 
hearing, if employees are divided by department, such as 
sporting goods and housewares, employers will not be able to 
move employees between departments in response to changes in 
demand and employees will not be able to pick up shifts in 
other departments.\104\ Additionally, opportunities for 
advancement into management would be limited without cross-
training.\105\
---------------------------------------------------------------------------
    \104\Id.
    \105\Id.
---------------------------------------------------------------------------

  LEGISLATION IS NEEDED TO ADDRESS THE ACTIONS OF THE NATIONAL LABOR 
                            RELATIONS BOARD

    Congress is responsible for establishing and amending as 
necessary our national labor law. The NLRB's decision is 
Specialty Healthcare and Rehabilitation Center of Mobile and 
its June 22, 2011, proposed election procedures will limit 
employee free choice and employer free speech, and fragment the 
workforce. Congressional action is necessary to reverse the 
NLRB's actions. H.R. 3094, the Workforce Democracy and Fairness 
Act, is designed to be a narrow reversal of the NLRB's August 
26, 2011, decision in Specialty Healthcare and Rehabilitation 
Center of Mobile and preempt the NLRB's June 22, 2011, proposed 
election procedures changes, without upsetting any other 
current law.
    To limit proliferation and fragmentation of bargaining 
units, unless otherwise stated in the Act and excluding 
bargaining unit determinations promulgated through rulemaking 
effective prior to August 25, 2011 (acute health care 
facilities), the legislation codifies the test used prior to 
the Board's holding in Specialty. Bargaining units will again 
be made up of employees that share a ``sufficient community of 
interest.'' In determining whether employees share a 
``sufficient community of interest'' the Board will weigh eight 
factors, including similarity of wages, working conditions, and 
skills. The Board will not exclude employees from the unit 
unless the interests of the group sought are sufficiently 
distinct from those of included employees to warrant the 
establishment of a separate unit.
    To ensure parties can dispute union proposed bargaining 
units, the Workforce Democracy and Fairness Act will codify the 
test used prior to Specialty. Any party seeking to enlarge the 
proposed bargaining unit must demonstrate that employees in the 
larger unit share a ``sufficient community of interest'' with 
those in the proposed unit, not an ``overwhelming community of 
interest.'' Taken together these provisions of the Workforce 
Democracy and Fairness Act will limit fragmentation, ensure 
employer flexibility and greater employee opportunities, and 
reduce labor costs.
    The Workforce Democracy and Fairness Act will also address 
the shortcomings of the NLRB's June 22, 2011, proposed changes 
to union election procedures. More specifically, the Act will 
address:

Voter eligibility

    To ensure employees and employers know who will be in their 
bargaining unit and avoid complications on eligibility, i.e. 
whether an employee is a supervisor, the Board shall determine 
the appropriate bargaining unit prior to an election.

Scheduling of pre-election hearing

    The regional director will have discretion as to when the 
pre-election hearing shall begin, but parties will have at 
least 14 days to prepare for the pre-election hearing. 
Employers will have at least 14 days to hire an attorney, 
identify issues, and prepare their case for pre-election 
hearing. Additionally, it gives unions, employers, and the NLRB 
an opportunity to compromise and reach an election agreement.

Identifying issues in dispute

    Allows employers and unions to raise independently any 
relevant and material issue or assert any relevant and material 
position at any time prior to the close of the hearing. 
Employers and unions will be free to raise issues as the 
hearing record develops, ensuring a fair and effective pre-
election hearing. However, to ensure parties do not 
inappropriately delay elections, issues traditionally excluded 
from pre-election hearings, such as the eligibility of 
employees for union membership, may not be raised.

Pre-election Board review

    To ensure uniformity and due process, parties may petition 
the Board for pre-election review of the regional director's 
decision.

Timing of election

    In 2010, the average time from the filing of a petition to 
an election was 31 days, and the median time was 38 days.\106\ 
Under the legislation, the NLRB will conduct an election as 
soon as practicable, but no less than 35 calendar days 
following the filing of an election petition. Employers will 
have time to educate employees and employees will have time to 
effectively judge whether they wished to be represented by a 
union.
---------------------------------------------------------------------------
    \106\Notice of Proposed Rulemaking, Representation-Case Procedures, 
76 FR 36812, 77 (June 22, 2011). Available at http://www.nlrb.gov/
sites/default/files/documents/525/2011-15307_pi_2.pdf.
---------------------------------------------------------------------------

Excelsior list

    Seven days after the final determination by the Board, 
employers will be required to provide a list of eligible 
employees. The list shall include the employee names, and one 
additional piece of personal information. The additional piece 
of information, such as personal phone number, email address, 
or home address, will be chosen in writing by employees. This 
will ensure employees can choose how to be contacted by the 
union and protect employee privacy.
    These provisions of The Workforce Democracy and Fairness 
Act will ensure that employers have adequate time to 
communicate with their employees and employees have the time 
and information necessary to make a fully-informed decision as 
to unionization.

                               Conclusion

    Over the last several months, the NLRB has issued multiple 
decisions and rules intended to unbalance labor relations to 
benefit organized labor. The most significant of these actions 
was the Board's holding in Specialty Healthcare and the June 
22, 2011, proposed rulemaking regarding election procedures. 
Together, these actions will fragment workplaces, increasing 
labor costs and strife, and limit employer free speech and 
employee free choice. The Workforce Democracy and Fairness Act 
will return balance to labor relations by creating a fair 
election process for unions, employers, and employees, 
protecting employer free speech, and ensuring employees have an 
opportunity to make an informed decision as to whether they 
want to be represented by the union.

                      Section-by-Section Analysis

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Chairman 
Kline and reported favorably by the Committee.
    Section 1. Provides that the short title is the ``Workforce 
Democracy and Fairness Act.''
    Section 2. Amends the National Labor Relations Act in order 
to reverse the National Labor Relations Board's decision in 
Specialty Healthcare and Rehabilitation of Mobile and preempt 
its June 22, 2011, proposed changes to representational 
election procedures.
    First, this section outlines the test used to determine the 
appropriate bargaining unit prior to the election. To determine 
whether employees share a sufficient community of interest the 
Board will consider eight factors: (1) similarity of wages, 
benefits, and working conditions; (2) similarity of skills and 
training; (3) centrality of management and common supervision; 
(4) extent of interchange and frequency of contact between 
employees; (5) integration of the work flow and 
interrelationship of the production process; (6) the 
consistency of the unit with the employer's organizational 
structure; (7) similarity of job functions and work; and (8) 
the bargaining history in the particular unit and the industry. 
To avoid the proliferation or fragmentation of bargaining 
units, employees shall not be excluded from the unit unless the 
interests of the group sought are sufficiently distinct from 
those of other employees to warrant the establishment of a 
separate unit.
    Second, it sets dates upon which the pre-election hearing 
may begin and the representational election may be held. 
Parties will have at least 14 days from the date of the filing 
of the petition to prepare for the pre-election hearing. Secret 
ballot elections will be held as soon as practicable, but no 
less than 35 days following the filing of an election petition.
    Third, it lays out certain aspects of the pre-election 
hearing and allows parties to seek pre-election Board review. 
The pre-election hearing shall be non-adversarial. The hearing 
officer is charged with the responsibility of identifying any 
relevant and material pre-election issues and thereafter making 
a full record thereon. The scope of relevant and material pre-
election issues is defined. Finally, it makes clear that 
parties may raise any relevant and material pre-election issue 
at any time prior to the close of the hearing.
    Fourth, this section establishes the composition of and 
timetable upon which the employer must provide a list of 
eligible voters. Seven days after the final determination by 
the Board of the appropriate bargaining unit, the Board shall 
acquire the list of eligible employees from the employer and 
make it available to all parties. The list shall include the 
employee names, and one additional form of personal employee 
contact information (such as telephone number, email address or 
mailing address) chosen by the employee in writing.

                       Explanation of Amendments

    The only amendment adopted, the amendment in the nature of 
a substitute, is explained in the body of this report.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch. H.R. 3094 preempts the National Labor Relations Board's 
rulemaking on election procedures and reverses its decision in 
Specialty Healthcare. H.R. 3094 would have no direct impact on 
the Legislative Branch.

                       Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                           Earmark Statement

    H.R. 3094 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(e), (f), (g) of House rule XXI.

                             Rollcall Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee Report to include for 
each record vote on a motion to report the measure or matter 
and on any amendments offered to the measure or matter the 
total number of votes for and against and the names of the 
Members voting for and against.


         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of House rule XIII, the 
goal of H.R. 3094 is to codify the traditional standard for 
determining an appropriate bargaining unit and the traditional 
standard used to challenge a petitioned-for bargaining unit, 
require the Board to rule on challenges to composition of the 
bargaining unit prior to the election, ensure employers have at 
least 14 days to prepare for a pre-election hearing, allow 
parties to raise relevant and material pre-election issues as 
the pre-election hearing record is developed, ensure parties 
may request pre-election Board review of regional director's 
decisions, provide employees with at least 35 days to consider 
whether they wish to be represented by a union, and permit 
employees to choose what personal information is provided to 
the union. The Committee expects the National Labor Relations 
Board to comply with these provisions and implement the changes 
to the statute in accordance with these stated goals.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

               New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following estimate for H.R. 3094 from the Director of the 
Congressional Budget Office:
                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 27, 2011.
Hon. John Kline,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3094, the 
Workforce Democracy and Fairness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Christina 
Hawley Anthony.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 3094--Workforce Democracy and Fairness Act

    H.R. 3094 would amend the National Labor Relations Act to 
define how the National Labor Relations Board should determine 
a unit for purposes of collective bargaining. In addition, it 
would provide minimum and maximum time frames in which action 
should be taken in response to the filing of petitions.
    CBO estimates that enacting H.R. 3094 would have no 
budgetary effect. Because enacting the bill would not affect 
direct spending or revenues, pay-as-you-go procedures do not 
apply.
    H.R. 3094 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. The estimate was approved by Peter H. Fontaine, 
Assistant Director for Budget Analysis.

                        Committee Cost Estimate

    Clause 3(d)(1) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 3094. 
However, clause 3(d)(2)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

NATIONAL LABOR RELATIONS ACT

           *       *       *       *       *       *       *



                     REPRESENTATIVES AND ELECTIONS

  Sec. 9. (a) * * *
  (b) [The Board shall decide in each case whether, in order to 
assure to employees the fullest freedom in exercising the 
rights guaranteed by this Act, the unit appropriate for the 
purposes of collective bargaining shall be the employer unit, 
craft unit, plant unit, or subdivision thereof: Provided, That 
the] In each case, prior to an election, the Board shall 
determine, in order to assure to employees the fullest freedom 
in exercising the rights guaranteed by this Act, the unit 
appropriate for the purposes of collective bargaining. Unless 
otherwise stated in this Act, and excluding bargaining unit 
determinations promulgated through rulemaking effective before 
August 26, 2011, the unit appropriate for purposes of 
collective bargaining shall consist of employees that share a 
sufficient community of interest. In determining whether 
employees share a sufficient community of interest, the Board 
shall consider (1) similarity of wages, benefits, and working 
conditions; (2) similarity of skills and training; (3) 
centrality of management and common supervision; (4) extent of 
interchange and frequency of contact between employees; (5) 
integration of the work flow and interrelationship of the 
production process; (6) the consistency of the unit with the 
employer's organizational structure; (7) similarity of job 
functions and work; and (8) the bargaining history in the 
particular unit and the industry. To avoid the proliferation or 
fragmentation of bargaining units, employees shall not be 
excluded from the unit unless the interests of the group sought 
are sufficiently distinct from those of other employees to 
warrant the establishment of a separate unit. Whether 
additional employees should be included in a proposed unit 
shall be based on whether such additional employees and 
proposed unit members share a sufficient community of interest, 
with the sole exception of proposed accretions to an existing 
unit, in which the inclusion of additional employees shall be 
based on whether such additional employees and existing unit 
members share an overwhelming community of interest and the 
additional employees have little or no separate identity. The 
Board shall not (1) decide that any unit is appropriate for 
such purposes if such unit includes both professional employees 
and employees who are not professional employees unless a 
majority of such professional employees vote for inclusion in 
such unit; or (2) decide that any craft unit is inappropriate 
for such purposes on the ground that a different unit has been 
established by a prior Board determination, unless a majority 
of the employees in the proposed craft unit vote against 
separate representation or (3) decide that any unit is 
appropriate for such purposes if it includes, together with 
other employees, any individual employed as a guard to enforce 
against employees and other persons rules to protect property 
of the employer or to protect the safety of persons on the 
employer's premises; but no labor organization shall be 
certified as the representative of employees in a bargaining 
unit of guards if such organization admits to membership, or is 
affiliated directly or indirectly with an organization which 
admits to membership, employees other than guards.
  (c)(1) Whenever a petition shall have been filed, in 
accordance with such regulations as may be prescribed by the 
Board--
          (A) * * *

           *       *       *       *       *       *       *

the Board shall investigate such petition and if it has 
reasonable cause to believe that a question of representation 
affecting commerce exists shall provide for an appropriate 
hearing upon due notice, but in no circumstances less than 14 
calendar days after the filing of the petition. Such hearing 
may be conducted by an officer or employee of the regional 
office, who shall not make any recommendations with respect 
thereto. An appropriate hearing shall be one that is non-
adversarial with the hearing officer charged, in collaboration 
with the parties, with the responsibility of identifying any 
relevant and material pre-election issues and thereafter making 
a full record thereon. Relevant and material pre-election 
issues shall include, in addition to unit appropriateness, the 
Board's jurisdiction and any other issue the resolution of 
which may make an election unnecessary or which may reasonably 
be expected to impact the election's outcome. Parties may raise 
independently any relevant and material pre-election issue or 
assert any relevant and material position at any time prior to 
the close of the hearing. If the Board finds upon the record of 
such hearing or consideration of a request for review of a 
regional director's decision and direction of election, that 
such a question of representation exists, it shall direct an 
election by secret ballot to be conducted as soon as 
practicable but not less than 35 calendar days following the 
filing of an election petition and shall certify the results 
thereof. Not earlier than 7 days after final determination by 
the Board of the appropriate bargaining unit, the Board shall 
acquire from the employer a list of all eligible voters to be 
made available to all parties, which shall include the employee 
names, and one additional form of personal employee contact 
information (such as telephone number, email address or mailing 
address) chosen by the employee in writing.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

 H.R. 3094 IS AN ATTACK ON THE INTERESTS OF AMERICAN WORKERS AND FAILS 
                        TO SOLVE THE JOBS CRISIS

    Committee Democrats strongly oppose and voted unanimously 
to reject the deceptively named ``Workforce Democracy and 
Fairness Act'' (H.R. 3094). This bill is designed to deny 
private-sector workers a right to a free and fair union 
representation election, creates delay for the sake of delay, 
and encourages frivolous litigation. It is more aptly named the 
``Election Prevention Act.''
    H.R. 3094 harms our economy in two fundamental ways. First, 
it ignores the jobs crisis. The recession of 2007 to 2009 has 
been the most severe in this country since the 1930s. After 
adjusting for inflation, gross domestic product declined by 5.1 
percent and the national unemployment rate peaked at 9.5 
percent. While the recession officially ended in June 2009, the 
U.S. economy has experienced a weak recovery. The official 
unemployment rate stands at 9 percent. According to the 
Economic Policy Institute, ``the U.S. is currently 6.6 million 
jobs below where it was when the recession started.''\1\ This 
legislation doesn't do anything to grow the economy. Second, it 
makes a strong and sustained economic recovery less likely. By 
impeding the ability of workers to organize, it depresses 
wages, squeezes the middle class, and undermines consumer 
demand.
---------------------------------------------------------------------------
    \1\Heidi Shierholz, Miserably low job growth, Economic Policy 
Institute (October 7, 2011). Available at: http://www.epi.org/
publication/october-jobs-picture/.
---------------------------------------------------------------------------
    With over 25 million Americans unemployed or underemployed, 
this Committee has yet to consider any jobs bills.\2\ Despite 
proposals under our jurisdiction, the Majority has taken no 
action on teacher jobs, no action on construction jobs, and no 
action on the long-term unemployed since they took office in 
January. The Wall Street Journal has stated ``the main reason 
U.S. companies are reluctant to step up hiring is scant demand 
. . .''\3\ Demand is scarce in part because wages are stagnant. 
The Chief Investment Officer at JP Morgan Chase states ``U.S. 
labor compensation is now at a 50-year low relative to both 
company sales and U.S. GDP.''\4\
---------------------------------------------------------------------------
    \2\Heidi Schierholz, Labor Market in Full Retreat, Economic Policy 
Institute (July 8, 2011).
    \3\Phil Izzo, Dearth of Demand Seen Behind Week Hiring, Wall St. 
Journal (July 19, 2011).
    \4\Harold Meyerson, Corporate America's Chokehold on Wages, 
Washington Post (July 20, 2011).
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    Committee Democrats support measures proposed by the 
American Jobs Act, which would directly tackle the problem of 
lack of demand and build the foundation for sustained growth by 
enacting a National Infrastructure Bank, rehiring 280,000 
teachers, modernizing 35,000 schools, providing tax credits for 
hiring the long term unemployed, offering tax incentives to 
stimulate short term hiring--all as part of an effort to 
rebuild the middle-class for the long term.\5\ Democrats have 
written the Majority requesting a hearing on this bill, which 
was the subject of a September 8, 2011, address by the 
President of the United States to a Joint Session of 
Congress.\6\ To date, no hearings have been scheduled. While 
this pattern of inaction and studied indifference towards the 
needs of the unemployed may benefit the Majority's political 
objectives, it betrays Congress's obligation to help solve the 
nation's #1 problem: jobs.
---------------------------------------------------------------------------
    \5\Fact Sheet: The American Jobs Act, Office of the Press 
Secretary, The White House (September 8, 2011). Available at: http://
www.whitehouse.gov/the-press-office/2011/09/08/fact-sheet-american-
jobs-act.
    \6\Address by the President to a Joint Session of Congress, Office 
of the Press Secretary, The White House (September 8, 2011). Available 
at: http://www.whitehouse.gov/the-press-office/2011/09/08/address-
president-joint-session-congress.
---------------------------------------------------------------------------
    Instead of stimulating demand and incentivizing hiring, 
H.R. 3094 delays union elections in the hopes of discouraging 
workers from organizing. Insofar as H.R. 3094 is an attack on 
labor unions, it is an attack on the strength of our economy. 
Unions help workers achieve higher wages. Between 2004 and 
2007, ``unionized workers'' wages were on average 11.3 percent 
higher than non-union workers with similar characteristics.'' 
More money in consumers' pockets means more money to stimulate 
demand and improve our economy.\7\
---------------------------------------------------------------------------
    \7\David Madland and Karla Walter, Unions Are Good for the American 
Economy, Center for American Progress (February 18, 2009). Available 
at: http://www.americanprogressaction.org/issues/2009/02/
efca_factsheets.html.
---------------------------------------------------------------------------
    Any suggestion that today's massive unemployment is due to 
unions is utterly misplaced, as unions represent only 8 percent 
of the private workforce. The root of the economy's ills are 
directly traceable to a financial crisis brought on by a 
failure to regulate Wall Street, the misdirection of productive 
resources into reckless financial engineering which 
artificially inflated a now-burst housing bubble, and the 
subsequent collapse in the availability of credit to small 
business. The majority's agenda with this special interest 
legislation is evident. It follows in the footsteps of 
legislation (H.R. 2587) which passed the House that will weaken 
workers' bargaining power by allowing employers to outsource 
jobs in retaliation for union activity. In this bill, the 
majority extends its attack on unions by thoroughly undermining 
workers' ability to organize a union and have an election in a 
timely manner. Neither of these bills will create a single job, 
but both will drive down American workers' bargaining and 
purchasing power.

   AN EFFECTIVE NATIONAL LABOR RELATIONS ACT SUPPORTS OUR ECONOMY BY 
   ALLOWING WORKING FAMILIES TO BARGAIN FOR GREATER PURCHASING POWER

    Depreciation of wages, egregious inequality, and excessive 
corporate power which undermined the ability of the average 
worker to make a living wage spurred passage of the National 
Labor Relations Act (NLRA). U.S. Senator Robert F. Wagner, the 
author of the National Labor Relations Act of 1935 (NLRA), 
reviewed economic conditions leading up to the Great Depression 
in a May 15, 1935 speech to the Senate:
          ``By 1929, 200 huge corporations owned one-half of 
        our total corporate wealth. Two years later, 100 
        general industrial corporations out of a total of 
        300,000 controlled one third of the general industrial 
        wealth of the Nation. As a natural corollary, the wage 
        earners' share in the product created by manufacturing 
        has declined steadily for nearly a century. . . .
          Sixteen million families, or 60 percent of the 
        people, had annual incomes below the $2,000 per year 
        necessary for the basic requirements of health and 
        decency. And nearly 20,000,000 families, constituting 
        71 percent of all America, received less than $2,500 a 
        year. At the same time, in the highest income bracket, 
        one-tenth of 1 percent of the families in the United 
        States were earning as much as the 42 percent at the 
        bottom.''\8\
---------------------------------------------------------------------------
    \8\The Wagner Act: Its Origin and Current Significance, Leon H. 
Keyserling, 29 George Washington Law Review 199 (1960-1961).

    The economic conditions of the 1930's mirror many of the 
same conditions today. Now is not the time to impede workers' 
rights under the NLRA. Doing so would hurt our fragile economic 
recovery. As unions have declined, wage growth has declined, 
and income disparities have increased. A recent study from 
Northeastern University found that, between 2009 when the 
economic recovery began and the end of 2010, national income 
rose by $528 billion with $464 billion of that growth going to 
corporate profits and $7 billion to wages and salaries.\9\ 
Better wages mean workers have money to spend on their 
families, which is good for local businesses and good for job 
creation.
---------------------------------------------------------------------------
    \9\Andrew Sum, et al., The ``Jobless and Wageless'' Recovery from 
the Great Recession of 2007-2009: The Magnitude and Sources of Economic 
Growth Through 2011 I and Their Impacts on Workers, Profits, and Stock 
Values, Northeastern University (2011). Available at: http://
www.clms.neu.edu/publication/documents/
Revised_Corporate_Report_May_27th.pdf.
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   THE CURRENT STATE OF NLRB ELECTION PROCEDURES AND PROPOSED CHANGES

   1. THE CURRENT NLRB ELECTION PROCESS ALLOWS FOR UNNECESSARY DELAY

    The current union election procedures allow employers to 
draw out and delay the process in their favor, to the detriment 
of employee interests. During such delays, employers can hold 
captive audience meetings to convey anti-union messages at any 
time during the work day, while unions are shut out of the 
workplace altogether. Election delays further provide employers 
opportunity to engage in threats, coercion, and intimidation of 
voters and introduce unnecessary conflict and disruption into 
the workplace. Such tactics can force workers to wait months or 
years before having an election--in some extreme cases, 
elections have been delayed upwards of 13 years.
    When a group of workers petitions for an election, the NLRB 
regional director determines whether the election is supported 
by at least 30 percent of employees in the bargaining unit. 
Among cases in which this threshold is met, the majority of 
election petitions proceed to a vote with the consent of 
employees and employer. Where there is consent, no pre-election 
hearings are needed. However, when an employer does not consent 
and there are issues in dispute, the NLRB schedules a pre-
election hearing. Employers can currently stall the elections 
process by refusing to consent to the election and requesting a 
pre-election hearing even over frivolous issues.
    Additional election delays are available to employers 
following pre-election hearings. For example, employers can 
request a Board review of a regional director's decision within 
14 days after the pre-election hearing. In these cases, the 
regional director will normally not schedule an election until 
a date between the 25th and 30th day after the date of the 
decision in order to permit the Board to rule on any request 
for review which may be filed. After an election occurs, 
parties can raise objections with the election itself within 
one week after ballots have been counted. If issues of material 
fact exist, the regional director will schedule a post-election 
hearing. A party may then appeal the regional director's 
decision to the full Board. All of these levels of review and 
appeal allow employers opportunity to counter and frustrate 
employees' unionization efforts.
    The many opportunities for delay included in the current 
Board processes invite lawlessness and undermine the integrity 
of the election process. Intentionally dilatory tactics are 
allowed to trump ``employees'' free exercise of their statutory 
right to decide whether to be represented by a union.''\10\
---------------------------------------------------------------------------
    \10\Testimony of Professor Kenneth G. Dau-Schmidt, Hearing before 
the Committee on Education and the Workforce, U.S. House of 
Representatives, July 7, 2011, Serial No. 112-31.
---------------------------------------------------------------------------

   2. THE NLRB'S PROPOSED RULES WOULD STREAMLINE THE ELECTION PROCESS

    The NLRB issued proposed rules on June 21, 2011, designed 
to improve current election procedures. These proposals, which 
are neutral on the subject of unionization, would reduce 
unnecessary litigation and delays, and improve the ability of 
workers to hear from employers and unions alike.\11\ The 
proposed rules would standardize the time frame for parties to 
resolve or litigate issues before and after elections, while 
reducing waste by requiring parties to identify issues and 
describe evidence to be raised at the hearing ahead of time. 
Currently, parties raising objections to the filing of a 
petition do not have to state the issues they intend to raise 
at a hearing before the hearing commences.
---------------------------------------------------------------------------
    \11\Proposed rule was published June 22, 2011 at 76 Federal 
Register 36812.
---------------------------------------------------------------------------
    The NLRB's proposed rules would also remove barriers to the 
election process by allowing for electronic filing of election 
petitions and other documents, and ensure that employees, 
employers and unions receive and exchange timely information to 
understand and participate in the representation case process. 
As part of this effort, employers would be required to provide 
a final voter list in electronic form two days after the 
direction of an election, including voters' telephone numbers 
and e-mail addresses when available.
    Finally, the NLRB's proposed rules would help make the 
election process more fair and less subject to dilatory 
manipulation by deferring litigation of most voter eligibility 
issues until after elections are held, eliminating a 25-30 day 
delay associated with awaiting the Board determination on 
whether it will accept a case for review regarding pre-election 
matters, and consolidating all election-related appeals to the 
Board into a single post-election appeals process.

          3. HOW AN APPROPRIATE BARGAINING UNIT IS DETERMINED

    Generally, the standard for determining the appropriateness 
of a bargaining unit is whether the employees in the unit share 
a ``community of interest.''\12\ To determine whether there is 
a ``community of interest'' the Board examines a wide host of 
factors. These may include whether the employees:\13\
---------------------------------------------------------------------------
    \12\N.L.R.B. v. J.C. Penney Co., 620 F.2d 718, 719 (9th Cir. 1980).
    \13\United Operations, 338 NLRB 123 (2002).
---------------------------------------------------------------------------
           Are organized into a separate department;
           Have distinct skills and training;
           Have distinct job functions and perform 
        distinct work, including inquiry into the amount and 
        type of job overlap between classifications;
           Are functionally integrated with the 
        employer's other employees;
           Have frequent contact with other employees;
           Interchange with other employees;
           Have distinct terms and conditions of 
        employment; and
           Are separately supervised.
    The Board looks at other factors as well in determining a 
community of interest. These may include common situs, employee 
desires, and the extent of organizing. Currently, the law 
requires the NLRB to determine if there is ``an appropriate'' 
unit, based on the petition of employees and the flexible 
principles outlined above for determining a community of 
interest. Various units are potentially ``appropriate.'' The 
union need only petition for an appropriate unit, not the 
single most appropriate one or even the largest one.

          H.R. 3094 IS A MISGUIDED ASSAULT ON WORKERS' RIGHTS

     1. H.R. 3094 ENABLES EXCESSIVE DELAYS, INVENTIVIZES FRIVOLOUS 
        LITIGATION, AND IMPOSES ARBITARY MINIMUM WAITING PERIODS

Unnecessary election delays while board considers whether or not to 
        grant review
    H.R. 3094 is designed to delay and ultimately prevent union 
elections. It accomplishes this goal by codifying arbitrary 
delays, over-riding proposed NLRB rules which would eliminate 
avoidable delays, incentivizing frivolous litigation, and 
empowering employers to gerrymander bargaining units.
    Currently under the NLRA, an election proceeds with the 
employees' choices registered and ballots impounded while the 
Board decides whether or not to undertake review of the pre-
election hearing. In contrast under H.R. 3094, elections are 
delayed indefinitely until the Board considers whether or not 
to grant such a review. Even after the Board decides to grant 
review of a pre-election hearing, H.R. 3094 mandates delay of 
elections until the Board reaches a final decision on such 
appeal. This is especially troubling given that the average 
delay for an election to be held in this circumstance is 551 
days.
    Lengthy delay in the elections process is especially likely 
to occur under H.R. 3094, given the prospect of the NLRB losing 
a quorum due to gridlock over Presidential nominations to the 
NLRB. The NLRB is prohibited from issuing decisions if it lacks 
a quorum of at least three out of five members.\14\ The NLRB 
had no quorum for 27 months between 2008 and 2010. The loss of 
a quorum is looming again beginning on January 1, 2012, when 
the term of Board Member Craig Becker expires and the NLRB 
faces the prospect of having only two members. The foreseeable 
loss of a quorum in combination with the delays built into H.R. 
3094 for mandatory consideration of requests for review of pre-
election hearings will bring elections to a screeching halt. A 
quorum could be lost even sooner if Republican Board Member 
Brian Hayes honors requests or succumbs to pressure from 
special interests to resign his position in order to 
``incapacitate'' the Board.
---------------------------------------------------------------------------
    \14\In New Process Steel, L.P. v NLRB, 130 S. Ct. 2635 (2010), the 
Supreme Court found the NLRB lacked authority to issue decisions with 
only 2 members.
---------------------------------------------------------------------------
    With a new way to further delay elections, H.R. 3094 
incentivizes employers to file requests for review in 
representation cases without regard to merit. This new 
opportunity will give employers even more time to pressure 
employees. Currently, over 98% of requests for Board review of 
representation cases are deemed meritless. Between 2002 and 
2009, the NLRB granted only 1.3% of these requests for review, 
but there are no sanctions for frivolous appeals. By 
incentivizing requests for review without regards to merit, it 
is likely that the Board's review process will become 
backlogged, resulting in yet further delays of elections.
Open-ended litigation
    H.R. 3094 allows for open-ended litigation by expansively 
allowing nearly any issue to be raised to be litigated at any 
time prior to the close of a hearing. The original H.R. 3094 
bill provided employers the right to raise any issues that 
``may reasonably be expected to impact the election's outcome'' 
at ``any time prior to the close of a hearing.'' The Majority's 
substitute modified the original bill by setting the scope of 
review to ``relevant and material pre-election issues,'' but 
exacerbated the problem by defining ``relevant and material 
pre-election issues'' to include ``any other issue'' reasonably 
expected to impact the election's outcome, effectively defining 
frivolous issues as relevant and material.
    By kicking open the door to a wide array of issues that 
could be litigated, H.R. 3094 allows any workplace issue to 
become the subject of pre-election litigation and issues could 
be raised at any point without notice to the NLRB or the 
opposing party. Employers could raise issues having no bearing 
on whether there is an appropriate bargaining unit in order to 
extend hearings for weeks on end to buy time to chill the 
workers' organizing drive or pressure them from organizing. 
Unions facing decertification campaigns could use the same 
delaying tactics. Any issues even remotely work-related, from 
unfair treatment by supervisors to the accuracy of campaign 
flyers, can be considered ``reasonably expected to impact the 
election's outcome'' and can therefore be raised during a 
hearing. It is foreseeable that the NLRB will be burdened with 
a docket clogged with cases containing irrelevant issues having 
nothing to do with whether to conduct an election or how to 
define a bargaining unit. This will further stall review 
efforts, which in turn will prevent elections from being held 
and favor the interests of employers over those of employees.

   H.R. 3094 Establishes Minimum Waiting Periods To Create Delay for 
                              Delays Sake


35-Day waiting period if there is a pre-election dispute

    H.R. 3094 mandates that an election will always be delayed 
at least 35 days from filing a petition for an election. It is 
a one-size-fits-all mandate which guarantees a minimum 35-day 
delay, even when a hearing is concluded quickly, or the parties 
resolve matters by consent without a hearing. The bill places 
no limits on how long an election may be delayed, such as when 
the employer raises frivolous issues in the pre-election 
hearing process to buy time.
    To justify the 35-day delay, the Majority contends that 
proposed NLRB rules will allow ``ambush'' elections in as few 
as 10 days. There is nothing in the proposed NLRB rule that 
would mandate an election in as few as 10 days. The majority 
references as its authority a dissent by Board Member Brian 
Hayes to the proposed rulemaking, where he states: ``Thus, by 
administrative fiat in lieu of Congressional action, the Board 
will impose organized labor's much sought-after `quickie 
election' option, a procedure under which elections will be 
held in 10 to 21 days from the filing of the petition.''\15\ 
Member Hayes provides no support for the claim that hearings 
could be held in 10 days.
---------------------------------------------------------------------------
    \15\Notice of Proposed Rulemaking, Representation--Case Procedures, 
76 FR 36812, 77 (June 22, 2011). Available at http://www.nlrb.gov/
sites/default/files/documents/525/2011_15307_pi_2.pdf.
---------------------------------------------------------------------------
    A quick review of the process reveals just the opposite. 
First, no contested election can take place until there is 
notice of a hearing which takes 7 days. Second, once a hearing 
is held, it takes the Regional Director 14-21 days to issue a 
decision and direct an election. Another 3 days are needed to 
notice a hearing. This adds up to 24-31 days under the proposed 
NLRB rule. Not 10. Even management side lawyers who support 
this bill seem to agree. Michael Lotito, a lawyer at the 
Jackson Lewis law firm which advises employers, said the lead 
time could be shaved to between 19 and 23 days under the NLRB 
proposal.\16\
---------------------------------------------------------------------------
    \16\Melanie Trottman and Kris Maher, Plan to Ease Way for Unions, 
Wall Street Journal (June 22, 2010) .
---------------------------------------------------------------------------
    The majority contends that setting a minimum of 35 days 
before any election can be held is not unreasonable, because 
the median time between the filing of a petition and election 
has been 37-38 days over the past decade.\17\ However this 
figure is an average that includes both uncontested and 
contested elections, and obscures delays in contested 
elections. A recent U.C. Berkeley study found that workers have 
to wait an average of 124 days where an employer forces a pre-
election hearing.\18\ In the most extreme cases, elections have 
been delayed upwards of 13 years.
---------------------------------------------------------------------------
    \17\Federal Register. Vol. 76, No. 120. Wednesday, June 22, 2011, 
pp. 36814.
    \18\John Logan, Erin Johansson and Ryan Lamare, New Data: NLRB 
Process Fails to Ensure a Fair Vote (Jun. 2011). The median time for a 
contested election is 67 days from the filing of a petition and the 
election, according to NLRB staff.
---------------------------------------------------------------------------

14-Day waiting period before a hearing can be held

    H.R. 3094 delays the pre-election hearing process by 
mandating that no pre-election hearing can take place less than 
14 calendar days after a petition for an election has been 
filed. This legislation is targeted at the NLRB's proposed 
rule, which would have the Regional Director set a pre-election 
hearing 7 days after a hearing notice is served, absent special 
circumstances. Currently, some NLRB regions regularly schedule 
hearings in as few as 7 days, and the NLRB's proposed rule 
normalizes this practice.\19\
---------------------------------------------------------------------------
    \19\Under Croft Metal, Inc. 337 NLRB 688 (2002), the NLRB 
established a rule that ``absent unusual circumstances or clear waiver 
by the parties,'' parties ``receive notice of a hearing not less than 5 
days prior to the hearing, excluding intervening weekends and 
holidays.''
---------------------------------------------------------------------------

7-Day waiting period to provide voter contact list

    H.R. 3094 creates new delays in NLRB procedures set forth 
in its 1966 Excelsior decision,\20\ and makes securing employee 
contact information more onerous. It does this by requiring 
that the union wait at least 7 days for a voter contact list 
after the determination of a bargaining unit by the Board. H.R. 
3094 goes further and limits access to only one of three forms 
of potential contact information--a mailing address, e-mail 
address or telephone number--to be selected by each employee 
and provided to their supervisor.
---------------------------------------------------------------------------
    \20\In Excelsior Underwear, 156 NLRB 1236 (1966), the Board 
considered whether ``a fair and free election [can] be held when the 
union involved lacks the names and addresses of employees eligible to 
vote in that election, and the employer refuses to accede to the 
union's request therefor.
---------------------------------------------------------------------------
    The Majority's goal is to overturn a part of the NLRB's 
proposed election rule issued on June 22, 2011, which requires 
that employers provide the union with the names, home 
addresses, telephone numbers and e-mail within 2 days of the 
NLRB directing an election. The Majority claims it aims to 
protect employee privacy. However, the employer has this 
information already. The Majority is aiming to keep voter 
information from one party--the union--while the other party 
enjoys distinct and overwhelming advantages in access to the 
voters.

     2. H.R. 3094 ALLOWS EMPLOYERS TO GERRYMANDER BARGAINING UNITS

    The bill establishes an entirely new regime which gives 
employers, instead of employees, the dominant voice in 
determining who should be included in an ``appropriate'' 
bargaining unit. This bill does this in several ways.
    The bill makes it harder to trigger an election. It does so 
by empowering employers to cram the pool of eligible voters 
with employees who had expressed no interest in joining a 
union, as a way to dilute the percentage of employees 
interested in forming a union below the 30% threshold required 
for a showing of interest, and thus head off an election.
    H.R. 3094 also favors employer efforts to stuff the ballot 
box with ``no'' votes. If an election occurs under the bill, 
the ballot box will be stuffed with votes from workers who had 
no interest in forming a union at the outset, but were added to 
the voter pool to advance the employer's efforts to defeat the 
union.
    This bill shifts the burden of proof to employees to 
justify why the employer cannot simply dilute a proposed 
bargaining unit with workers who had no interest in organizing. 
This approach jettisons 75 years of Supreme Court and NLRB 
precedent in determining an appropriate bargaining unit.
    The practical impact of this bill is that employers are 
going to find it much easier to gerrymander bargaining units to 
determine who can vote in a union election (presumably to 
either prevent an election or reduce the chances of a union 
victory).
    This bill also overturns the NLRB's recent Specialty 
Healthcare decision,\21\ and the many appeals court decisions 
upon which it is based, The question before the NLRB in the 
Specialty Healthcare case was a demand by a nursing home 
operator to add 33 maintenance assistants, cooks, data entry 
clerks, business office clericals, and receptionists to a 
petitioned-for unit of 53 certified nursing assistants (CNAs). 
The CNAs had specialized training, mandatory certification, 
worked 3 shifts, and had distinct supervision, uniforms, pay 
rates, primary duties, and work areas. However, the other non-
professional employees only worked 2 shifts, had different pay 
rates, did not require specialized training and certification, 
and did not interact with patients. Based on these facts, the 
regional director concluded that the petitioned-for unit of 
CNAs shared a ``community of interest,'' and excluded the other 
non-professional employees from the unit.
---------------------------------------------------------------------------
    \21\Specialty Healthcare of Mobile, 357 NLRB 83 (2011).
---------------------------------------------------------------------------
    The full Board's Specialty Healthcare decision upheld the 
traditional principles of unit determination and longstanding 
court precedent. It requires that if an employer wants to add 
employees to a bargaining unit, the employer has the burden of 
showing that there is an ``overwhelming community of interest'' 
between the employees they want to add and those in the 
petitioned-for bargaining unit.
    The NLRB adopted well-established federal court precedents 
regarding unit determination, including Blue Man Vegas, a case 
where the D.C. Circuit Court of Appeals addressed the question 
of what standard should be applied when an employer contends 
that the smallest appropriate unit contains employees who are 
not in the petitioned-for unit. In this case, the employer 
argued that the NLRB erred in finding that a bargaining unit of 
stage hands proposed by the Union was ``appropriate,'' even 
though it excluded certain technicians who dealt with 
musicians. In an opinion authored by Judge Douglas Ginsburg, a 
well regarded conservative jurist, the Court stated:
          A unit is truly inappropriate if, for example, there 
        is no legitimate basis upon which to exclude certain 
        employees from it. That the excluded employees share a 
        community of interest with the included employees does 
        not, however, mean there may be no legitimate basis 
        upon which to exclude them; that follows apodictically 
        from the proposition that there may be more than one 
        appropriate bargaining unit. If, however, the excluded 
        employees share an overwhelming community of interest 
        with the included employees, then there is no 
        legitimate basis upon which to exclude them from the 
        bargaining unit.\22\
---------------------------------------------------------------------------
    \22\Blue Man Vegas LLC v. NLRB, 529 F.3d 417, 421 (D.C. Cir. 2008). 
This decision echoes the views of the 7th Circuit Court of Appeals: 
``[I]t is not enough for the employer to suggest a more appropriate 
unit; it must show that the Board's unit is clearly inappropriate.'' 
Dunbar Armored, Inc. v. NLRB, 186 F.3d 844, 847 (7th Cir. 1999).

    The majority argues that the Specialty decision will lead 
to the Board approving ``micro'' bargaining units that would be 
uneconomic and disruptive to employers. However, no evidence 
was presented at the October 12 legislative hearing to support 
this contention. Moreover, micro units have not been 
proliferating since Blue Man Vegas; the size of the average new 
bargaining unit has remained steady over the past decade at 
about 23-29 employees. The bargaining unit of CNAs at the 
Specialty Healthcare facility contained 53 employees, which 
comprised over 50% of the workforce and is twice the average 
size of all new bargaining units under NLRB elections over the 
past decade (average was 23-26 employees). This decision did 
not create a micro unit.
    The Majority also alleges that the Specialty Healthcare 
decision will effectively mandate that the NLRB must accept a 
union's petitioned-for unit. This already is expressly 
outlawed. Section 9[c][5] of the NLRA states: ``the extent to 
which employees have organized shall not be controlling'' in 
determining whether a bargaining unit ``is appropriate.'' With 
that law on the books, as it has been for decades, the Majority 
must have another reason for enacting provisions to address a 
concern that the law already explicitly and robustly addresses.
    Ironically, no objections were raised about an alleged 
culture of union favoritism at the D.C. Circuit Court of 
Appeals when Blue Man Vegas was decided; however, this charge 
was leveled when the current NLRB adopted this case in the 
Specialty decision. The only policy change forged by the 
Specialty Healthcare decision is that the traditional community 
of interest test will be applied to non-acute health care 
facilities, instead of an obsolete hybrid model set forth in 
the Board's 1991 Park Manor decision, which had adopted a 
special test for bargaining unit determinations just for 
nursing homes, rehabilitation centers, and other non-acute 
health care facilities.
    The Majority misreads the Specialty Healthcare decision to 
accomplish things it does not, and having done so, it 
opportunistically advances radical changes to the NLRA to cure 
an illusory problem as part of its agenda to weaken the ability 
of unions to organize.

         3. THE FORGOTTEN JOBS CRISIS: WHAT H.R. 3094 NEGLECTS

    The primary reason H.R. 3094 is misguided is because of 
what it neglects, namely, the jobs crisis. In an August 29, 
2011 memo to House Republicans, Majority Leader Cantor wrote of 
a ``regulatory relief agenda'' and cited the proposed NLRB 
elections rule on a list of the ``Top 10 Job-Destroying 
Regulations.''\23\ The memo crystallizes the Majority's 
economic thinking that ``job-killing regulations'' are the 
principle force holding back economic recovery, and to justify 
their attack on labor unions, as well as consumer and 
environmental protections.
---------------------------------------------------------------------------
    \23\Eric Cantor, Memo On Upcoming Jobs Agenda, (August 29, 2011). 
Available at: http://majorityleader.gov/blog/2011/08/memo-on-upcoming-
jobs-agenda.html.
---------------------------------------------------------------------------
    The Republicans have moved 15 bills, most of which roll 
back labor, consumer protection or environmental regulations. 
Non partisan economists, such as Macroeconomic Advisors point 
out that: ``Regulation does not prevent the economy from 
achieving full employment. After all, the economy wasn't that 
much less regulated in 2007 when the unemployment rate was 
4.5%, half of today's reading.''\24\ The New York Times 
reported that ``economists at private-sector forecasting firms 
agreed'' with President Obama that Republican proposals would 
not help the economy in the short term.\25\ Mark Zandi, chief 
economist at Moody's Analytics said that the Republican 
proposals ``won't mean much for the economy and job market in 
the next year'' and stressed that ``it is vital for Congress 
and the administration to provide some near-term support to the 
economy.''\26\
---------------------------------------------------------------------------
    \24\Macroeconomic Advisors, (October 21, 2011), Available at: 
http://macroadvisers.blogspot.com/2011/10/man-up-ajobsa-vs-
jobstga.html.
    \25\Jackie Calmes, Making Case for Jobs Bill, Obama Cites Europe's 
Woes, New York Times, (October 6, 2011).
    \26\Id.
---------------------------------------------------------------------------
    According to the Bureau of Labor Statistics (BLS), which 
tracks mass layoffs, the percentage of employers who have 
singled out ``government regulation/intervention'' as the cause 
for firings since 2008 has been approximately 0.2% while the 
percentage blaming lack of demand has been between 29 and 39%. 
The table below presents the bureau's data.

                             PERCENT OF MASS LAYOFFS CAUSED BY GOVERNMENT REGULATION
----------------------------------------------------------------------------------------------------------------
                                                                                                      2011/First
                      Reason for layoff                           2008         2009         2010         half
----------------------------------------------------------------------------------------------------------------
Government regulation.......................................        5,505        4,854        2,971        1,119
Percentage of layoffs.......................................          0.4          0.2          0.2          0.2
Lack of demand..............................................      516,919      824,834      384,565      144,746
Percentage..................................................         34.1         39.1         30.6         29.7
                                                             ---------------------------------------------------
    Total private nonfarm separations.......................    1,516,978    2,108,202    1,257,134     486,482
----------------------------------------------------------------------------------------------------------------
Source: Bureau of Labor Statistics, Mass Layoff Statistics.

    As the chart above illustrates, the number of mass layoffs 
nationwide attributed by some employers to government 
regulation is minuscule and this cause of job loss is not 
getting worse during the Obama administration. Lack of demand 
for business products and services is vastly more important. 
These results are buttressed by surveys. During June and July, 
Small Business Majority asked 1,257 small-business owners to 
name the two biggest problems they face. Only 13 percent listed 
government regulation as one of them. Almost half said their 
biggest problem was uncertainty about the future course of the 
economy--another way of saying a lack of customers and 
sales.\27\
---------------------------------------------------------------------------
    \27\Misreprentations, Regulations and Jobs, Bruce Bartlett, New 
York Times Economix Blog (Oct. 4, 2011).
---------------------------------------------------------------------------
    By contrast, Democrats have offered a plan that would 
actually create jobs, and deals with the very real problems 
facing everyday Americans. Committee Democrats recently 
conducted an E-Forum and released a report detailing the 
personal accounts and recommendations of over 700 workers 
affected by the economic crisis. For example:
     Katharine from Saint Simons Island, GA wrote: ``I 
am a certified teacher who has been out of work since 6/2010. 
Absolutely no one is hiring. I've even gotten to the point 
where I apply for anything if it is full time.''
     Michaeline from Crest Hill, IL wrote about her 
son--``an operating engineer [who] has not been called to work 
for two years while our streets and roads are getting dangerous 
with all the cracks and holes. Isn't it time we put America 
back to work?''
    The ``American Jobs Act'' (AJA) speaks directly to these 
concerns. It is estimated that the American Jobs Act would 
``give a significant boost to GDP and employment over the near-
term,'' increasing GDP by 1.3% by the end of 2012 and 
increasing employment by 1.3 million by the end of 2012.\28\ 
The AJA ``would help avoid a return to a recession by 
maintaining growth and pushing down the unemployment rate next 
year, according to economists surveyed by Bloomberg News.''\29\
---------------------------------------------------------------------------
    \28\Macroeconomic Advisers Blog Entry, American Jobs Act: A 
Significant Boost to GDP and Employment (September 8, 2011). Available 
at: http://macroadvisers.blogspot.com/2011/09/american-jobs-act-
significant-boost-to.html.
    \29\Timothy R. Homan, Obama Jobs Plan Prevents 2012 Recession in 
Survey of Economists, Bloomberg (September 28, 2011). Available at: 
http://www.bloomberg.com/news/2011-09-28/obama-jobs-plan-prevents-2012-
recession-in-survey-of-economists.html.
---------------------------------------------------------------------------
    Committee Republicans have chosen to take up Committee time 
with H.R. 3094 instead of legislation to improve the lot of 
millions of unemployed Americans. Rep. Andrews summarized this 
disconnect at the Committee's October 26 markup:
          ``[F]or the record, because I think we have 
        consistently said this all day, the context of this 
        discussion again strikes me as almost bizarre that . . 
        . tomorrow will be the day a lot of Americans have 
        their homes foreclosed on and lose their home, tomorrow 
        will be the day a lot of people get their last 
        unemployment check, tomorrow will be the day a lot of 
        businesses close shop for the last time because they 
        can't survive, and we are arguing about how many days 
        there ought to be between a union petition being filed 
        and election. I just don't think that that is the 
        argument that the country needs.''\30\
---------------------------------------------------------------------------
    \30\Statement of the Hon. Robert Andrews, Committee Markup 
Transcript, October 26, 2011, p. 123.

    Instead of working to grow and strengthen the middle class, 
Washington Republicans have been working overtime to take away 
those rights that made this nation great. They have used their 
majority to attack the National Labor Relations Board, the 
agency that enforces private-sector workers' rights, nearly 50 
times. In comparison, the Majority has brought a grand total of 
zero immediate, direct job creation bills to the floor.

     COMMITTEE DEMOCRATS OFFER AMENDMENTS TO FIX FLAWS IN H.R. 3094

    Democrats offered the following amendments to the Amendment 
in the Nature of a Substitute to H.R. 3094 which was introduced 
by Chairman Kline as the base text at the beginning of the 
markup (for purposes of the discussion below, that substitute 
is designated as Amendment 1.)

    Amendment 2.--Amends the Substitute To Restore the Traditional 
     Community of Interest Criteria for Determining an Appropriate 
                            Bargaining Unit

    Representative Carolyn McCarthy proposed an amendment to 
delete text in the substitute that would have allowed employers 
to gerrymander bargaining units as a way to impact the outcome 
of union elections. The amendment reinstated the ``traditional 
community of interest'' test for determining an appropriate 
bargaining unit that has been in place for 75 years.
    This bill empowers employers to dictate with whom employees 
may associate for purposes of representation, by creating a 
presumption that employers are free to add employees to a 
petitioned-for bargaining unit, unless employees who want to 
form a union can show that these additional employees would 
belong in a completely separate bargaining unit because they 
have a ``separate and distinct'' community of interests from 
the group petitioning for the union.
    This bill overturns current law, which requires only that 
there be an appropriate unit which meets the traditional 
``community of interest'' test, not the largest, or what the 
employer thinks might be the most appropriate unit. 
Historically, Board's precedent has approved the smallest 
appropriate unit which meets the community of interest test.
    This bill introduces concepts utterly foreign to the 
precedents established over the 75 years that the NLRA has been 
the law of the land. It is fundamentally undemocratic, because 
it completely overrides the initiative of the employees who 
petitioned for a specific bargaining unit, which the NLRB has 
historically considered, and empowers employers to determine 
who is allowed to vote in union elections as a way to defeat 
employee free choice. As noted during markup, this bill ``is 
irrational [and] it is reactionary in response to the Specialty 
Healthcare''.\31\
---------------------------------------------------------------------------
    \31\Statement of the Hon. Lynn Woolsey, Committee Markup 
Transcript, October 26, 2011, p.49.
---------------------------------------------------------------------------
    The amendment preserved current law, and prevented employer 
gerrymandering of bargaining units. The amendment was rejected 
16-22.

 Amendment 3.--Strikes Language in the Substitute Allowing Open-Ended 
                  Litigation in Pre-Election Hearings.

    In order to ensure that pre-election hearings are focused 
on resolving genuine disputes, Representative John Tierney 
proposed an amendment striking the text in the substitute which 
authorizes parties to raise ``any other issue . . . reasonably 
expected to impact the election's outcome.'' Pre-election 
hearings are for setting election ground rules--such as 
defining the appropriate bargaining unit, or resolving issues 
that may eliminate the need for an election. They are not for 
concocting litigation over ``any other issue'' that could 
impact the election's outcome.
    The substitute allows ambush hearings by allowing parties 
``to raise any issue or assert any position at any time prior 
to the close of the hearing.'' The NLRB proposed election rules 
require parties to declare all of the issues to be litigated at 
the outset of a hearing, as is commonly done in civil 
litigation, to assure orderly proceedings. H.R. 3094 seeks to 
overturn that proposal. The substitute amended the base text of 
H.R. 3094 to provide that matters to be covered in pre-election 
hearings are limited to those which are ``relevant and 
material.'' On its face, that would be an appropriate 
limitation. However, the substitute defines ``relevant and 
material pre-election issues'' to include ``any other issue . . 
. which may reasonably be expected to impact the election's 
outcome.'' This will require hearing officers to broaden the 
scope of pre-election hearings to matters far beyond what is 
allowed today, and enable meritless litigation contrived solely 
for purposes of delaying elections.
    The amendment was rejected 16-22.

   Amendment 4.--Amends the Substitute To Provide Assistance for the 
   Modernization, Renovation, and Repair of Elementary and Secondary 
                            School Buildings

    Representative Susan Davis offered an amendment which would 
have invested $25 billion to provide assistance for the 
modernization, renovation, and repair of elementary and 
secondary school buildings in public school districts across 
America in order to support the achievement of improved 
educational outcomes in those schools.
    The amendment would modernize 35,000 American schools, 
while dealing with the nation's economic woes by creating 
hundreds of thousands of jobs for construction workers, 
engineers, maintenance staff, and electrical workers.
    The American Society of Civil Engineers (ASCE) awarded the 
United States a `D' for the condition of its public school 
infrastructure. The average public school building in the 
United States is over 40 years old, and many are much older. 
Critical repairs and renovation projects are desperately needed 
now. Not only could Congress have made a long-term investment 
in our nation's long-term economic prosperity by investing in 
education, but it could have put unemployed workers on the job 
now.
    Representative Phil Roe raised a point of order that the 
amendment was not germane, which was sustained by Chairman 
Kline. Representative Robert Andrews appealed the ruling, but 
was denied an opportunity to speak on the appeal. 
Representative Roe then moved to table the appeal, which was 
sustained 23-17. This vote cut off any future consideration of 
the Davis measure.

Amendment 5.--To Amend the Timing and Content of Voter Information List

    In order to ensure that employee contact information is 
provided to unions in a timely manner and to assure adequate 
modes for communication, Representative Dale Kildee offered an 
amendment to reduce the waiting period for employers to provide 
the union with the Excelsior list of eligible voters within 2 
days of the direction of an election, instead of 7 days 
provided in the bill. The amendment cures another defect in the 
legislation which limits employee contact information to only a 
mailing address, or a phone number, or an e-mail, but not all 
three. This amendment assures unions have access to all three 
modes of contact information, if they are available. The 
amendment adopts the approach in the NLRB's proposed rule to 
modernize election procedures.
    The Majority's bill is intended to override the NLRB's 
proposed rule to modernize provision of voter contact 
information.
    The purpose of the Excelsior rule is to ensure that all 
voters have access to information to make an informed and 
reasoned choice. Employers use all three modes of 
communications to reach employees to convey their views about 
unionization. At a minimum, there is no reason unions should 
not have access to the same contact information as employers, 
if the goal is to assure that employees are able to make a 
fully informed and reasoned decision. Multiple modes of 
communications are appropriate to assure timely contact, 
especially when there are Excelsior lists with a substantial 
number of errors in one mode of contact, such as home address.
    The Majority opposes the amendment on the grounds that 
allowing unions to have information that would allow them 
access to employees outside the workplace would violate 
employee privacy rights. The NLRB's Excelsior decision rejected 
the time worn argument that employees would be subjected to 
harassment and coercion by allowing the union to contact 
employees at home, especially since, unlike employers, unions 
have no right to contact voters in the workplace. Whether 
employees can be contacted within 7 days or 2 days of the 
direction of an election has no bearing on privacy 
considerations. Likewise, providing e-mail or phone information 
is no different than information used by political campaigns, 
including the Majority's, to contact voters before an election.
    The amendment was rejected 16-22.

Amendment 6.--Amends the Substitute To Direct NLRB To Issue a Rule for 
                    the Conduct of Electronic Voting

    In order to modernize union election practices, 
Representative Lynn Woolsey offered an amendment directing the 
NLRB to issue an interim rule allowing electronic voting in 
NLRB-supervised representation elections and to implement the 
necessary infrastructure to provide for secure, tamperproof 
electronic balloting which fully protects the privacy of 
employees. Under this amendment, the NLRB would provide for a 
secure online or telephonic voting process, whereby employees 
could vote away from their workplace in the privacy of their 
home and where voting may be most convenient. The amendment 
required vote security and integrity safeguards.
    Under current NLRB procedures, elections usually take place 
on company property using paper ballots, and in cases where the 
workforce is widely dispersed, elections take place by mail-in 
ballot. Electronic ballots are commonly used in union 
representation elections conducted by other federal agencies. 
The National Mediation Board (NMB), which regulates union 
elections under the Railway Labor Act (covering airline and 
railroad industries), and the Federal Labor Relations Authority 
which oversees most federal employee unions, already use 
electronic voting. Last February, the Federal Labor Relations 
Authority used e-voting in an election for employees of the 
U.S. Department of Navy.
    Almost all publicly traded companies allow shareholders to 
conduct elections for corporate board members and ratification 
of auditors via electronic voting.
    The Majority objected that this provision would leave 
employees open to coercion, intimidation and fraud, and unions 
could subject employees to ``intense pressure'' to cast 
electronic ballots in their homes.\32\ This problem has not 
arisen in the NMB and FLRA supervised secret ballot elections.
---------------------------------------------------------------------------
    \32\Statement of the Hon. Todd Rokita, Committee Markup Transcript, 
October 26, 2011, pp. 108-109.
---------------------------------------------------------------------------
    The amendment was rejected 15-22.

   Amendment 7.--Amends the Substitute To Prohibit Captive Audience 
                 Meetings After an Election Is Ordered

    To prevent coercion and intimidation by employers during 
the election process, Representative Robert Andrews proposed an 
amendment to prohibit captive audience meetings between the 
date an election is ordered and the time of election. Should an 
employer violate this provision, the election can be 
invalidated and a new election ordered upon the filing of valid 
objections. The amendment provided an exception where there is 
an explicit written agreement between the employer and union.
    Captive audience meetings are compulsory meetings held by 
employers and are conducted on an employee's paid time to 
dissuade or pressure employees against unionizing. Under 
current law, employees who refuse to attend or speak out at the 
meeting without permission can be legally fired by their 
employer. Unions are not provided equal time at these meetings, 
nor do they have any right to enter the employer's worksite to 
provide information.
    Such forced meetings have been found by the NLRB to be 
intimidating and tend to destroy freedom of choice. Since 1953, 
the NLRB has prohibited employer captive audience meetings in 
the 24-hour period immediately preceding an election because: 
(1) the use of company time for pre-election speeches and (2) 
the delivery of such speeches . . . tend to destroy freedom of 
choice and establish an atmosphere in which a free election 
cannot be held.\33\ The amendment extends this existing rule to 
cover the period beginning on the date that the NLRB orders the 
election, instead of a mere 24 hours before the election.
---------------------------------------------------------------------------
    \33\Peerless Plywood Company, 107 NLRB 427 (1953).
---------------------------------------------------------------------------
    This amendment simply ensures that employers campaign using 
similar ground rules as unions, and will help ensure that 
employees have a fully informed choice untainted by attendance 
at forced meetings. The amendment does not restrict the 
employer's ability to hold voluntary and unpaid meetings with 
employees--these are the same terms on which unions are already 
forced to campaign.
    The amendment was rejected 16-23.

 Amendment 8.--Amends the Substitute and Adds a Provision to Sanction 
                    Frivolous and Vexatious Filings

    In order to deter frivolous filings, Representative Tim 
Bishop proposed an amendment to provide the Board with the 
authority to impose sanctions on a party for presenting a 
frivolous or vexatious filing during any stage of a 
representation proceeding. Potential sanctions included 
reimbursement of attorney fees and costs, using criteria in 
Rule 11 of Federal Rules of Civil Procedure. In addition, if 
the Board determines that a party presented a frivolous filing 
for purposes of delaying an election, the Board shall direct an 
election in not less than 7 days after such determination. The 
NLRB has no sanction procedures with regards to representation 
proceedings.
    The Majority opposed the amendment. They contended that the 
amendment would allow unions to game the system by making 
frivolous filings to force the NLRB to trigger an election 
within 7 days. However, the amendment text explicitly states:

          ``If at any time the Board determines that a party 
        has raised a frivolous matter or presented a frivolous 
        filing for purposes of delaying an election, the Board 
        shall immediately direct that an election be conducted 
        not less than 7 days after such determination.''
    Under the text of the amendment, if the Board simply found 
that a union presented a frivolous filing it would not trigger 
a certification election. The Board would also have to 
determine that the frivolous filing was for ``purposes of 
delay.'' Since unions would, in general, have no interest in 
delaying a certification election, the Board would not find 
that this type of misconduct was for ``purposes of delay.''
    This provision is worded in a neutral manner to sanction 
frivolous litigation by any party. Thus, if a union presented a 
frivolous filing for purposes of delaying a decertification 
election, the same sanctions would apply to the union, 
including the direction of an election not less than 7 days 
after such determination.
    The amendment was rejected 16-23.

  Amendment 9.--Amends the Substitute and Strikes the Requirement for 
 Mandatory Consideration of All Pre-Election Appeals Prior to Ordering 
                  an Election and Restores Current Law

    To ensure that requests for Board review of pre-election 
hearings are not used as a means to delay elections, 
Representative Robert Andrews proposed an amendment to strike a 
provision that will prevent elections until after the Board 
considers whether or not to grant a review.
    Under the NLRA, an election currently goes forward while 
the Board decides whether or not it will undertake a review, 
and, if granted, while such review is underway. In these cases, 
the employee's choice is registered and the ballots are then 
impounded to preserve that choice until there is Board 
determination.
    Under the language in the substitute, the election would be 
held-up until the NLRB considered whether to grant or deny the 
request for review. These delays could be brief, or they could 
last years. In fact, under this language, elections could come 
to a screeching halt if there is no quorum at the NLRB to make 
decisions on whether or not to grant a review. The amendment 
removes unnecessary delay and restores the process to where it 
has been for the past 75 years.
    The amendment was rejected 16-23.

 Amendment 10.--Amends the Substitute and Eliminates the Mandatory 35 
                   Day Waiting Period for an Election

    In order to prevent needless delays in conducting 
elections, Representative Robert Andrews proposed an amendment 
to strike the text which requires that an election must be 
delayed for at least 35 days from the date the petition was 
filed. This amendment would restore current law. While the 
Majority wants to prescribe minimum delays, there is no 
provision in H.R. 3904 to limit the time that an election can 
be delayed.
    The deletion of the 14 words in this amendment would ensure 
that an election would be conducted as soon as practicable 
following the pre-election hearing, consistent with the facts 
determined by the Regional Director.
    By setting a floor that an election will always be held at 
least 35 days from the filing of a petition, H.R. 3094 imposes 
delay for delays sake, even if an election could practically be 
scheduled before 35 days from the filing of a petition. A 
witness testified at the Committee's October 12 hearing on this 
bill that:
          ``This [35 day delay] would apply even where the 
        union and employer are willing to stipulate to an 
        earlier date. Other than facilitating an employer in 
        ramping up an anti-union campaign, it does not appear 
        to have any meaningful purpose.''\34\
---------------------------------------------------------------------------
    \34\ Testimony of Michael Hunter, Esq, before the Committee on 
Education and the Workforce, U.S. House of Representatives, October 12, 
2011.

    This amendment was rejected 16-23.

                               CONCLUSION

    H.R. 3094 should be called the ``Election Prevention Act'' 
because its effect will be to delay and ultimately prevent 
union elections. This special interest bill is a misguided 
effort to divert the committee's attention away from creating 
jobs and focus on weakening laws that protect workers' rights, 
at a time when 25 million Americans are unemployed or 
underemployed. Undermining workers' rights will further weaken 
an already struggling economy by resulting in depressed wages 
and reduced consumer demand--the primary reason that U.S. 
companies are reluctant to hire new employees.\35\ Committee 
Democrats are united in opposition to H.R. 3094 and will 
continue to fight for the rights of workers and middle class 
families.
---------------------------------------------------------------------------
    \35\ Phil Izzo, Dearth of Demand Seen Behind Weak Hiring, Wall 
Street Journal (Jul. 19, 2011).

                                   George Miller.
                                   Dale E. Kildee.
                                   Robert E. Andrews.
                                   Lynn C. Woolsey.
                                   Carolyn McCarthy.
                                   Dennis J. Kucinich.
                                   Susan A. Davis.
                                   Timothy H. Bishop.
                                   Mazie K. Hirono.
                                   Donald M. Payne.
                                   Robert C. Scott.
                                   Ruben Hinojosa.
                                   John F. Tierney.
                                   Rush D. Holt.
                                   Raul M. Grijalva.
                                   Dave Loebsack.
                                   Jason Altmire.

                                  
