[House Report 115-325]
[From the U.S. Government Publishing Office]


115th Congress    }                                      {      Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                      {     115-325

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



 
                    EMPLOYEE PRIVACY PROTECTION ACT

                                _______
                                

 September 25, 2017.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

Ms. Foxx, from the Committee on Education and the Workforce, submitted 
                             the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2775]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce to whom was 
referred the bill (H.R. 2775) to amend the National Labor 
Relations Act to require that lists of employees eligible to 
vote in organizing elections be provided to the National Labor 
Relations Board, 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 ``Employee Privacy Protection Act''.

SEC. 2. LISTS OF EMPLOYEES ELIGIBLE TO VOTE IN ELECTIONS.

  Section 9(c)(1) of the National Labor Relations Act (29 U.S.C. 
159(c)(1)) is amended by adding at the end the following: ``Not earlier 
than 7 days after a final determination by the Board of the appropriate 
bargaining unit, the Board shall acquire from the employer a list of 
all employees eligible to vote in the election to be made available to 
all parties, which shall include the names of the employees, and not 
more than one additional form of personal contact information for the 
employee, (such as a telephone number, an email address, or a mailing 
address) chosen by the employee in writing.''.

                                Purpose

    H.R. 2775, the Employee Privacy Protection Act, protects 
employee privacy, modernizes the voter eligibility list,\1\ and 
empowers workers, while ensuring unions can continue to 
communicate with employees. The legislation ensures labor 
organizations will continue to receive a list of eligible 
voters within seven days of an election agreement or direction 
of an election. However, rather than requiring employers to 
provide each employee's home address, as required under current 
law, the bill provides employees the right to choose the 
contact information provided to the union.
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    \1\The voter eligibility list is a list of employees who are 
presumed to be eligible to cast a vote in a union election.
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                            Committee Action


                             112TH CONGRESS

Committee Hearing on National Labor Relations Board's Unprecedented 
        Rulemaking

    On July 7, 2011, the Committee on Education and the 
Workforce (Committee) held a hearing entitled ``Rushing Union 
Elections: Protecting the Interests of Big Labor at the Expense 
of Workers' Free Choice'' on the National Labor Relations 
Board's (NLRB) June 22, 2011, proposed election procedure 
regulation. The proposal expanded the list of required employee 
contact information (Excelsior list) and reduced the time for 
production. Witnesses before the Committee agreed the proposal 
would have significantly hindered an employer's ability to 
communicate with his or her employees and crippled 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, representing 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.

Committee Hearing on NLRB's Decision to Disfranchise Employees in Union 
        Elections

    On September 22, 2011, the Committee held a hearing on the 
``Culture of Union Favoritism: Recent Actions of the National 
Labor Relations Board.'' In August 2011, the NLRB issued a 
number of biased anti-worker decisions, including Specialty 
Healthcare and Rehabilitation Center of Mobile (Specialty 
Healthcare),\2\ Lamons Gasket Company,\3\ and UGL-UNICCO 
Service Company.\4\ Additionally, the NLRB finalized a rule 
requiring almost every employer to post a vague, union-biased 
notice on employee National Labor Relations Act (NLRA) rights. 
The NLRB's unbridled overreach of authority demanded a complete 
examination by the Committee. Witnesses before the Committee 
included Mr. Curtis L. Mack, Partner, McGuireWoods 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.
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    \2\357 NLRB No. 83 (2011).
    \3\357 NLRB No. 72 (2011).
    \4\357 NLRB No. 76 (2011).
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Introduction of H.R. 3094, Workforce Democracy and Fairness Act

    On October 5, 2011, then-Committee Chairman John Kline (R-
MN) introduced H.R. 3094, the Workforce Democracy and Fairness 
Act, with 26 cosponsors. Recognizing the NLRB had moved far 
beyond an adjudicative body designed to implement congressional 
intent under the NLRA, the legislation sought to (1) reinstate 
the traditional standard for determining which employees 
comprise an appropriate bargaining unit; (2) ensure employers 
can 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.

Committee Legislative Hearing on H.R. 3094, Workforce Democracy and 
        Fairness Act

    On October 12, 2011, the Committee held a legislative 
hearing on H.R. 3094. 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, representing 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 Consideration of H.R. 3094, Workforce Democracy and Fairness 
        Act

    On October 26, 2011, the Committee considered H.R. 3094. 
Then-Chairman Kline offered an amendment in the nature of a 
substitute. 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 to 16.

House Passage of H.R. 3094, Workforce Democracy and Fairness Act

    On November 30, 2011, the House of Representatives 
considered H.R. 3094, as amended by the Committee. Four 
amendments and an amendment in the nature of a substitute were 
offered, but none were adopted. The House passed H.R. 3094 by a 
bipartisan vote of 235 to 188. The bill was not considered by 
the Senate prior to the conclusion of the 112th Congress.

                             113TH CONGRESS

Subcommittee Hearing on Union Organizing

    On September 19, 2013, the Subcommittee on Health, 
Employment, Labor, and Pensions (HELP) held a hearing on ``The 
Future of Union Organizing'' to examine the future of NLRB 
representational elections. Witnesses were Mr. David R. Burton, 
General Counsel, National Small Business Association, 
Washington, D.C.; Mr. Clarence Adams, Field Technician, 
Cablevision, Brooklyn, New York; Mr. Ronald Meisburg, Member of 
the Firm, Proskauer, Washington, D.C.; and Mr. Stefan J. 
Marculewicz, Shareholder, Littler Mendelson, Washington, D.C.

Committee Hearing on the NLRB's Proposed Ambush Election Rule

    On March 5, 2014, the Committee held a hearing entitled 
``Culture of Union Favoritism: The Return of the NLRB's Ambush 
Election Rule.'' Ms. Doreen S. Davis, Partner, Jones Day, New 
York, New York; Mr. Steve Browne, Vice President of Human 
Resources, LaRosa, Cincinnati, Ohio; Ms. Caren P. Spencer, 
Shareholder, Weinberg, Roger & Rosenfeld P.C., Alameda, 
California; and, Mr. William Messenger, Staff Attorney, 
National Right to Work Legal Defense Foundation, Inc., 
Springfield, Virginia, testified before the Committee. The 
witnesses stated the February 6, 2014, proposed ambush election 
rule, like its predecessor, would substantially limit the 
opportunity for a full evidentiary hearing or NLRB resolution 
of contested issues, including voter eligibility.

Introduction of H.R. 4321, Employee Privacy Protection Act

    On March 27, 2014, then-HELP Subcommittee Chairman David 
``Phil'' Roe (R-TN) introduced H.R. 4321, the Employee Privacy 
Protection Act, with 20 cosponsors. With the NLRB's ambush 
election rule undermining employee privacy, the legislation was 
necessary to ensure employees could choose what personal 
information was provided to a union.

Committee Consideration of H.R. 4321, Employee Privacy Protection Act

    On April 9, 2014, the Committee considered H.R. 4321. HELP 
Subcommittee Chairman Roe offered an amendment in the nature of 
a substitute to make a technical change to clarify employees 
only have to provide one form of personal contact information. 
Two additional amendments were offered and debated but were not 
adopted. The Committee favorably reported H.R. 4321 to the 
House of Representatives by a vote of 21 to 17.

                             114TH CONGRESS

Subcommittee Legislative Hearing on H.J. Res. 29, Providing for 
        Congressional Disapproval of the NLRB's Ambush Election Rule

    On March 4, 2015, the HELP Subcommittee held a legislative 
hearing entitled ``H.J. Res. 29, Providing for congressional 
disapproval under chapter 8 of title 5, United States Code, of 
the rule submitted by the National Labor Relations Board 
relating to representation case procedures.'' This Joint 
Resolution would have disapproved and nullified the NLRB's 
December 15, 2014, rule relating to representation case 
procedures. Witnesses testified to the urgent need for Congress 
to overturn the NLRB's ambush election rule because of its 
negative consequences for workers and families. Witnesses were 
Ms. Brenda Crawford, Registered Nurse, Murrieta, California; 
Mr. Roger King, Senior Labor and Employment Counsel, testifying 
on behalf of the Retail Industry Leaders Association, 
Washington, D.C.; Mr. Arnold E. Perl, Member, Glankler Brown, 
Memphis, Tennessee; and Mr. Glenn M. Taubman, Staff Attorney, 
National Right to Work Legal Defense and Education Foundation, 
Inc., Springfield, Virginia.

Introduction of H.R. 1767, Employee Privacy Protection Act

    On April 14, 2015, then-HELP Subcommittee Chairman Roe 
introduced H.R. 1767, the Employee Privacy Protection Act, with 
two original cosponsors. The text of H.R. 1767 was identical to 
the text of H.R. 4321 from the 113th Congress.

                             115TH CONGRESS

Subcommittee Hearing on Restoring Balance and Fairness to the NLRB

    On February 14, 2017, the HELP Subcommittee held a hearing 
entitled ``Restoring Balance and Fairness to the National Labor 
Relations Board.'' Witnesses discussed the harmful consequences 
of several NLRB actions, including the ambush election rule, 
which cripples worker free choice. Witnesses were Ms. Reem 
Aloul, BrightStar Care of Arlington, Arlington, Virginia, on 
behalf of the Coalition to Save Local Business; Ms. Susan 
Davis, Partner, Cohen, Weiss, and Simon, LLP, New York, New 
York; Mr. Raymond J. LaJeunesse, Jr., Vice President and Legal 
Director, National Right to Work Legal Defense Foundation, 
Inc., Springfield, Virginia; and, Mr. Kurt G. Larkin, Labor 
Attorney, Hunton & Williams, LLP, Richmond, Virginia.

Introduction of H.R. 2775, Employee Privacy Protection Act

    On June 6, 2017, Rep. Joe Wilson (R-SC) introduced H.R. 
2775, the Employee Privacy Protection Act, with seven 
cosponsors. The text of H.R. 2775 is identical to the text of 
H.R. 1767 from the 114th Congress, which was referred to the 
Committee in April 2015.

Subcommittee Legislative Hearing on H.R. 2776, H.R. 2775, and H.R. 2723

    On June 14, 2017, the HELP Subcommittee held a hearing 
entitled ``Legislative Reforms to the National Labor Relations 
Act: H.R. 2776, Workforce Democracy and Fairness Act; H.R. 
2775, Employee Privacy Protection Act; and H.R. 2723, Employee 
Rights Act.'' Witnesses testified about the need for H.R. 2775 
to fix the increased burden on employers of requiring 
additional employee information to be given to a union with 
little prior notice. Witnesses also testified that H.R. 2775 
would protect workers and provide workers' choice in 
determining what personal information may be shared with a 
union. Witnesses were Mr. Seth H. Borden, Partner, McGuireWoods 
LLP, New York, NY.; Mr. Guerino J. Calemine, III, General 
Counsel, Communications Workers of America, Washington, D.C.; 
Ms. Karen Cox, Dixon, Illinois; and, Ms. Nancy McKeague, Senior 
Vice President and Chief of Staff, Michigan Health and Hospital 
Association, Okemos, Michigan, on behalf of the Society for 
Human Resource Management.

Committee Consideration of H.R. 2775, Employee Privacy Protection Act

    On June 29, 2017, the Committee considered H.R. 2775, the 
Employee Privacy Protection Act. Rep. Wilson offered an 
amendment in the nature of a substitute, making a technical 
change to clarify employees only have to provide one form of 
personal contact information, which was adopted. Additional 
amendments were offered and debated but were not adopted. The 
Committee favorably reported H.R. 2775, as amended, to the 
House of Representatives by a vote of 22 to 16.

                                Summary

    The Employee Privacy Protection Act, H.R. 2775, ensures 
labor organizations will continue to receive a list of eligible 
voters within seven days of an election agreement or direction 
of election. The bill modernizes the process, while providing 
employees the right to choose how they wish to be contacted by 
a union.

                            Committee Views

    In 1935, Congress passed the NLRA, guaranteeing the right 
of most private sector employees\5\ to organize and select 
their own representative. In 1947, Congress passed the most 
significant amendment to the NLRA, the Taft-Hartley Act\6\ 
(Taft-Hartley), abandoning ``the policy of affirmatively 
encouraging the spread of collective bargaining [and] striking 
a new balance between protection of the right to self-
organization and various opposing claims.''\7\ Taft-Hartley 
clarified employees have the right to refrain from 
participating in union activity,\8\ created new union unfair 
labor practices,\9\ codified employer free speech,\10\ and made 
changes to the determination of bargaining units.\11\
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    \5\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 USC Sec. 152(2).
    \6\29 U.S.C. Sec. 141 et. seq.
    \7\Archibald Cox, Some Aspects of the Labor Management Relations 
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
    \8\29 U.S.C. Sec. 157.
    \9\29 U.S.C. Sec. 158.
    \10\29 U.S.C. Sec. 158(c).
    \11\29 U.S.C. Sec. 159(d).
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    The NLRA established the NLRB, an independent federal 
agency, to fulfill two principal functions: (1) to prevent and 
remedy employer and union unlawful acts (called unfair labor 
practices or ULPs) and (2) to 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.\12\
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    \12\NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973).
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    To promote free and informed choice in union elections, in 
the 1966 Excelsior Underwear Inc. case, the NLRB created a 
requirement that employers must provide a list of all eligible 
voters and their home addresses to the union(s) seeking 
representation prior to the election.\13\ This list is commonly 
referred to as the Excelsior list. Currently, within two 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 (from 1996 through 2014, 
employers had seven days to provide this information).\14\ The 
regional director makes the list available to all parties. 
Unless waived, the non-employer parties, most commonly the 
union(s) seeking representation, must have at least 10 days to 
review the list prior to the election.\15\ Under this procedure 
(including the seven-day timeframe), unions won over two-thirds 
of representational elections in Fiscal Year (FY) 2014.\16\
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    \13\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
    \14\National Labor Relations NLRB Casehandling Manual para. 11312.
    \15\Id.
    \16\NLRB, REPRESENTATION PETITIONS (2017), https://www.nlrb.gov/
news-outreach/graphs-data/petitions-and-elections/representation-
petitions-rc.
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    In February 2014, in a rare exercise of formal rulemaking, 
the NLRB published in the Federal Register a Notice of Proposed 
Rulemaking, which became final on December 15, 2014, and took 
effect on April 14, 2015. This rule adds additional information 
to the Excelsior list and cuts the timeframe for its 
production.\17\ In addition to employee names and addresses, 
the employer now must provide unit employees' phone numbers, 
email addresses, work locations, shift information, and job 
classifications.\18\ 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.\19\ Under this new procedure, unions 
won over 72 percent of representational elections in FY 
2016.\20\
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    \17\79 Fed. Reg. at 7324.
    \18\Id.
    \19\Id.
    \20\NLRB, supra note 15.
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Privacy Implications of an Expanded Excelsior List

    The inclusion of employee phone numbers and email addresses 
on the Excelsior list further encroaches on employee privacy. 
Moreover, providing unions with employees' phone numbers, email 
addresses, and home addresses without consent puts employees 
and their families at risk of coercion and intimidation. The 
NLRB reported that in FY 2010 unions faced a total of 6,338 
unfair labor practice allegations; 80.6 percent of those 
charges were cases where a union attempted to ``restrain or 
coerce employees in the exercise of the rights guaranteed'' by 
the NLRA (Sec. 8(b)(1)).\21\
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    \21\NLRB, TABLE 2: TYPES OF UNFAIR LABOR PRACTICES ALLEGED, FISCAL 
YEAR 2010, https://www.nlrb.gov/sites/default/files/attachments/basic-
page/node-1696/table_2.pdf.
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    The December 2014 rule provides only a vague warning that 
this information should not be misused. It states that employee 
information shall not be used ``for purposes other than the 
representation proceeding, Board proceedings arising from it, 
and related matters.'' Seth Borden, a Partner at McGuireWoods 
LLP, testified at a June 14, 2017, HELP Subcommittee hearing 
that ``despite numerous comments seeking assurances about 
enforcement of this provision, the Board declined to include 
any specific mechanisms to protect against abuse.''\22\
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    \22\Legislative Reforms to the National Labor Relations Act: H.R. 
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy 
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the 
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on 
Educ. and the Workforce, 115th Cong., 12 (2017). (written testimony of 
Seth Borden) [hereinafter Borden].
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    Employees clearly face significant and, at times, unlawful 
union pressure.\23\ However, union communications need not be 
unfair labor practices or criminal acts to be unwelcome. In 
testimony before the HELP Subcommittee witnesses described 
their negative and unwelcome experiences with union organizers.
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    \23\NLRB, supra note 21.
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    In her June 2013 testimony, Ms. Marlene Felter, a medical 
records coder at Chapman Medical Center in Orange, California, 
stated the following:

          From July to November 2011, my co-workers reported 
        that [Service Employees International Union] operatives 
        were calling them on their cell phones, coming to their 
        homes, stalking them, harassing them, and even offering 
        to buy them meals at restaurants to convince them to 
        sign union cards.\24\
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    \24\Legislative Hearing on H.R. 2346, Secret Ballot Protection Act, 
and H.R. 2347, Representation Fairness Restoration Act: Hearing before 
the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 
on Educ. and the Workforce, 113th Cong., 2 (2013) (written testimony of 
Marlene Felter).

    In his June 2011 testimony, Mr. Larry Getts, a Dana 
Corporation employee in Fort Wayne, Indiana, stated the 
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following:

          On a daily basis[,] my coworkers and I would find UAW 
        officials waiting in our break room. They'd approach us 
        during our lunch breaks. They would even follow us to 
        our vehicles at the end of the day and some of us even 
        to our homes.\25\
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    \25\Rushing Union Elections: Protecting the Interests of Big Labor 
at the Expense of Workers' Free Choice: Hearing before the H. Comm. on 
Educ. and the Workforce, 112th Cong., 2 (2011) (written testimony of 
Larry Getts).

    Not surprisingly, Mr. Getts said he would object to his 
employer providing his phone number and email address to a 
union.\26\
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    \26\Id. at 2-3.
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    In a 2014 Washington Times article, Ms. Jennifer Parrish 
described her alarming experience with a Service Employees 
International Union organizer, saying:

          My story starts in the spring of 2006, when a man I'd 
        never met walked into my Minnesota home and asked for 
        my signature on what he claimed was a petition asking 
        the state for health insurance for child care providers 
        like myself (sic). As it happened, I already had health 
        insurance, and I didn't feel it was the state's 
        responsibility to provide it to me.
          I repeatedly declined to sign his petition, but this 
        wasn't enough. The gentleman grew angry, and his 
        demands became louder and more insistent. His behavior 
        was alarming; to get him to leave, I promised to sign 
        his card later if he would return after I had time to 
        look it over.\27\
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    \27\Parrish, Jennifer, A breath of employee freedom, The Washington 
Times (Aug. 7, 2014), http://www.washingtontimes.com/news/2014/aug/7/
parrish-a-breath-of-employee-freedom/.

    On June 14, 2017, at a HELP Subcommittee hearing, Ms. Karen 
Cox testified about her experience attempting to decertify an 
unwanted union and how her privacy was infringed upon as a 
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result. She stated the following:

          In November 2012, I made the two-hour trip to Peoria 
        and filed the first petition with the NLRB. On my way 
        back[,] I got a phone call from my dad. He told me a 
        union rep contacted him and mentioned something about 
        people losing their jobs and said that I needed to 
        settle my grievances. My dad said, `Watch your back, 
        because that was a threat.' I was shocked.\28\
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    \28\Legislative Reforms to the National Labor Relations Act: H.R. 
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy 
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the 
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on 
Educ. and the Workforce, 115th Cong., 2 (2017) (written testimony of 
Karen Cox).

    Of equal concern are alleged union misuses of personal 
employee information outside an organizing campaign. In the 
fall of 2007, 33 AT&T employees at the company's Burlington, 
North Carolina facility resigned from Communication Workers of 
America (CWA) membership and ceased paying union dues.\29\ In 
apparent retaliation, the CWA Local posted the 33 AT&T 
employees' names and social security numbers on a publicly 
accessible bulletin board located in a hallway close to the 
building entrance, stating the employees had resigned from the 
union and ceased paying dues.\30\
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    \29\AT&T Workers Petition U.S. Supreme Court to Overturn Union 
Exemption for Identity Theft Laws, National Right to Work Legal Defense 
Foundation, Inc. (July 19, 2012), http://www.nrtw.org/en/press/2012/07/
fisher-supreme-court-appeal-07192012.
    \30\Id.
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    In 2009, Ms. Patricia Pelletier, an employee of the 
Connecticut Student Loan Foundation, organized an effort to 
decertify the CWA.\31\ In response, CWA representatives 
allegedly forged Pelletier's signature on numerous magazine 
subscriptions and product solicitations.\32\ As a result, 
Pelletier received numerous unwanted pieces of mail. Not only 
was Pelletier forced to spend many hours canceling 
subscriptions, she was also billed for thousands of dollars by 
magazine companies.\33\ Ultimately, Ms. Pelletier filed a 
lawsuit against the union that was settled.\34\
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    \31\Union Settles Lawsuit Alleging Identity Theft in Retaliation 
Campaign against Independent Worker, National Right to Work Legal 
Defense Foundation, Inc. (May 9, 2009), http://www.nrtw.org/en/press/
2009/05/union-settles-lawsuit-alleging-ident.
    \32\Id.
    \33\Id.
    \34\Id.
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    At a June 14, 2017, HELP Subcommittee hearing, Ms. Nancy 
McKeague, Senior Vice President and Chief of Staff of the 
Michigan Health and Hospital Association, testifying on behalf 
of the Society of Human Resource Management, noted that from a 
HR professional's perspective the new requirements were 
``abhorrent.'' She stated, ``If we begin to provide to a third 
party, without employees' consent, personal information such as 
home addresses, home telephone numbers, cell phone numbers, and 
shift schedules, how long do you think the employee will trust 
us with the rest of the employment information we keep?''\35\
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    \35\Legislative Reforms to the National Labor Relations Act: H.R. 
2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee Privacy 
Protection Act; and, H.R. 2723, Employee Rights Act: Hearing before the 
Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on 
Educ. and the Workforce, 115th Cong., 5 (2017) (written testimony of 
Nancy McKeague).
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    Additionally, there is a threat from mishandled or 
unprotected personal data. At the same hearing, Mr. Seth H. 
Borden, Partner at McGuireWoods LLP in New York City, New York, 
testified to the following:

          The more significant risks, however, go far beyond 
        the prospect that a union might intentionally misuse 
        this employee personal contact information. Nowadays, 
        no one is immune from the dangers of data piracy. The 
        risks of falling victim to hacking, `phishing' attacks, 
        and/or identity theft are all increased by the volume 
        of unwanted email or text message engagement directed 
        at employees. Nothing in the rule dictates what 
        measures should be taken to protect this information 
        for example, whether it might be stored on secured 
        networks only, or whether it must be destroyed upon 
        resolution of the petition, etc. The [NLRB] glossed 
        over all these very real concerns.\36\
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    \36\Borden, supra note 22 at 12.

    As these examples illustrate, employees face unwelcome, 
even unlawful, union coercion and intimidation, as well as 
union misuse of their personally identifiable information. 
Providing additional private personal information to unions 
will only increase these incidents.

Necessary Legislation To Address Unnecessary Encroachment on Employee 
        Privacy

    The Employee Privacy Protection Act addresses the 
shortcomings of the NLRB's December 15, 2014, changes to union 
election procedures by modernizing the Excelsior list, while 
protecting employee privacy by empowering workers. Seven days 
after the regional director's pre-election decision or approval 
of the election agreement, employers will be required to 
provide a list of eligible employees. The list shall include 
employee names and one additional piece of personal contact 
information. The additional piece of information, such as a 
phone number, an email address, or a home address, will be 
chosen in writing by employees, thereby ensuring effective 
union communication and modernizing the Excelsior list while 
protecting employee privacy by allowing employees to choose how 
to be contacted by the union.

Privacy Protection

    Congress has acted repeatedly to protect personally 
identifiable information. The following are examples of federal 
laws that include protections for personally identifiable 
information:\37\
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    \37\E-mail from Gina Stevens, Congressional Research Service 
American Law Division, to Marvin Kaplan, former-Workforce Policy 
Counsel, House Education and the Workforce Committee (Aug. 12, 2014, 
11:08 EST) (on file with author).
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           The Fair Credit Reporting Act of 1970 (FCRA) 
        sets forth rights for individuals and responsibilities 
        for consumer ``credit reporting agencies'' in 
        connection with the preparation and dissemination of 
        personal information in a consumer report. Under the 
        FCRA, consumer reporting agencies are prohibited from 
        disclosing consumer reports to anyone who does not have 
        a permissible purpose.
           The Family Educational Rights and Privacy 
        Act of 1974 governs access to and disclosure of 
        educational records to parents, students, and third 
        parties.
           The Right to Financial Privacy Act of 1978 
        restricts the ability of the federal government to 
        obtain bank records from financial institutions and 
        sets forth procedures for the federal government's 
        access to bank customer records.
           The Cable Communications Policy Act of 1984 
        limits the disclosure of cable television subscriber 
        names, addresses, and utilization information for mail 
        solicitation purposes.
           The Video Privacy Protection Act of 1988 
        regulates the treatment of personal information 
        collected in connection with video sales and rentals.
           The Driver's Privacy Protection Act of 1994 
        regulates the use and disclosure of personal 
        information from state motor vehicle records.
           The Health Insurance Portability and 
        Accountability Act of 1996 set a deadline of August 
        1999 for congressional action on privacy legislation 
        for electronically transmitted health information and 
        required the secretary of Health and Human Services to 
        issue final privacy regulations by February 2000 in the 
        absence of congressional action.
           The Communications Act of 1934, as amended 
        by the Telecommunications Act of 1996, limits the use 
        and disclosure of customer proprietary network 
        information by telecommunications service providers and 
        provides a right of access for individuals.
           The Children's Online Privacy Protection Act 
        of 1998 requires parental consent to collect a child's 
        age or address and requires sites collecting 
        information from children to disclose how they plan to 
        use the data.
           The Gramm-Leach-Bliley Act of 1999 requires 
        financial institutions to disclose their privacy 
        policies to their customers. Customers may opt out of 
        sharing personal information, and the institutions may 
        not share account numbers with non-affiliated 
        telemarketers and direct marketers.
    The National Do Not Call Registry, authorized by the 
bipartisan Telemarketing and Consumer Fraud and Abuse 
Prevention Act, provides insight into American sentiment on 
this issue. The National Do Not Call Registry gives Americans 
the opportunity to limit the telemarketing calls they 
receive.\38\ Once registered on the National Do Not Call 
Registry, covered telemarketers must cease calling the 
registered number within 31 days.\39\ According to the Federal 
Trade Commission, at the end of FY 2012 the National Do Not 
Call Registry contained approximately 217 million actively 
registered phone numbers.\40\ In 2012, the U.S. population was 
approximately 314 million,\41\ suggesting the vast majority of 
Americans would object to having an employer provide their 
personal information to any third party.
---------------------------------------------------------------------------
    \38\National Do Not Call Registry, Federal Trade Commission, http:/
/www.consumer.ftc.gov/articles/0108-national-do-not-call-registry (last 
visited Aug. 2, 2017).
    \39\Id.
    \40\FTC Issues FY 2012 National Do Not Call Registry Data Book, 
Federal Trade Commission, http://www.ftc.gov/news-events/press-
releases/2012/10/ftc-issues-fy-2012-national-do-not-call-registry-data-
book (last visited Aug. 2, 2017).
    \41\Annual Estimates of the Resident Population for Selected Age 
Groups by Sex for the United States, States, Counties, and Puerto Rico 
Commonwealth and Municipios: April 1, 2010 to July 1, 2014. United 
States Census Bureau, https://factfinder.census.gov/faces/
tableservices/jsf/pages/productview.xhtml?src=bkmk (last visited on 
Sep. 8, 2017).
---------------------------------------------------------------------------
    Former Rep. John Dingell (D-MI) stated during debate on the 
Do-Not-Call Implementation Act that the ``national [Do Not Call 
Registry] will allow consumers to limit . . . unwanted 
intrusions and once again answer their telephones without 
aggravation.''\42\ Like the National Do Not Call Registry, the 
Employee Privacy Protection Act limits unwanted intrusions. 
However, recognizing the importance of a free and informed 
choice in union elections, the Employee Privacy Protection Act 
does not forbid employers from providing employee information 
to a union. Instead, the Employee Privacy Protection Act 
modernizes the Excelsior list and allows employees to choose 
what personal information is provided to the union.
---------------------------------------------------------------------------
    \42\DO-NOT-CALL IMPLEMENTATION ACT. Congressional Record. February 
12, 2003, 108th Congress, 1st Session .Issue: Vol. 149, No. 26
---------------------------------------------------------------------------

Modernized Union Communication

    Under current rules, labor organizations have multiple 
avenues through which they may contact employees to encourage 
support for the union. In general, employees may solicit 
support in the workplace during non-work time, including breaks 
and lunch.\43\ Given that unions win over two-thirds of 
representational elections, having employee phone numbers and 
email addresses is not essential to secure employee support. 
However, the Employee Privacy Protection Act recognizes that 
the Excelsior list promotes free and informed choice, but it is 
outdated. As such, the Employee Privacy Protection Act codifies 
a modernized Excelsior list that protects employee privacy and 
choice.
---------------------------------------------------------------------------
    \43\Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
---------------------------------------------------------------------------
    The ways individuals communicate has changed significantly 
since 1966 when the NLRB created the Excelsior list. At the 
time, traditional mail was one of the most widely used forms of 
communication.\44\ However, the use of traditional mail has 
declined significantly in recent years. From 2007 to 2016, 
single-piece First-Class Mail volume dropped by approximately 
22.6 billion pieces.\45\ In contrast, the use of email and cell 
phones has risen significantly. According to Statista, there 
are 203.8 million adult email users in the United States.\46\ 
According to Pew Research, as of January 2017 95 percent of 
American adults have a cell phone, 77 percent of which are 
smartphones.\47\ The Employee Privacy Protection Act modernizes 
the Excelsior list to allow employees to provide a personal 
email address or phone number in lieu of a home address. 
However, to ensure employee privacy and choice, the Employee 
Privacy Protection Act leaves it to the individual employee to 
choose which piece of personal information is provided to the 
union.
---------------------------------------------------------------------------
    \44\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
    \45\U.S. Postal Service: A decade of facts and figures, United 
States Postal Service, https://about.usps.com/who-we-are/postal-facts/
decade-of-facts-and-figures.htm (last visited Aug. 2, 2017).
    \46\Number of Adult e-mail users in the United States from 2012 to 
2017 (in millions), Statista, https://www.statista.com/statistics/
253794/number-of-adult-e-mail-users-in-the-united-states/ (last visited 
Aug. 2, 2017).
    \47\Mobile Technology Fact Sheet, Pew Research Center Internet 
Project, http://www.pewinternet.org/fact-sheet/mobile/ (last visited 
Aug. 2, 2017).
---------------------------------------------------------------------------

                               Conclusion

    Over the last several years, the NLRB has issued multiple 
decisions and rules intended to unbalance labor relations to 
benefit organized labor. One of the most significant of these 
recent actions was the NLRB's December 15, 2014, rulemaking 
regarding election procedures. The changes to the Excelsior 
list unnecessarily infringe on employee privacy. The Employee 
Privacy Protection Act protects employee privacy by providing 
employees with the power to choose what personal contact 
information is provided to the union.

                           Section-by-Section

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute offered by Rep. Wilson 
and reported favorably by the Committee.
    Section 1. Provides that the short title is the ``Employee 
Privacy Protection Act.''
    Section 2. Amends the National Labor Relations Act to 
reverse the December 15, 2014, changes to representational 
election procedures by establishing the composition of and 
timetable upon which the employer must provide a list of 
eligible voters. Seven days after the final determination by 
the NLRB of the appropriate bargaining unit, the NLRB 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 amendments, including the amendment in the nature of a 
substitute, are 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. 2775, the Employee Privacy Protection Act, 
protects employee privacy, modernizes the voter eligibility 
list, and empowers workers, while ensuring unions can continue 
to communicate with employees.

                       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. 2775 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of House Rule XXI.

                            Roll Call 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. 2775 are to protect employee privacy, modernize 
the voter eligibility list, and empower workers, while ensuring 
unions can continue to communicate with employees.

                    Duplication of Federal Programs

    No provision of H.R. 2775 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that enacting H.R. 2775 does not 
specifically direct the completion of any specific rule makings 
within the meaning of 5 U.S.C. 551.

  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. 2775 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 24, 2017.
Hon. Virginia Foxx,
Chairwoman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
    Dear Madam Chairwoman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R 2775, the Employee 
Privacy Protection 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,
                                             Mark P. Hadley
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 2775--Employee Privacy Protection Act

    H.R. 2775 would amend the National Labor Relations Act to 
require the National Labor Relations Board wait at least seven 
days after the board has issued its final determination on a 
petition for collective bargaining representation before 
obtaining from an employer a list of employees who are eligible 
to vote in an election for such representation. CBO estimates 
that enacting H.R. 2775 would not affect the federal budget.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting H.R. 2775 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    The bill contains no intergovernmental mandates as defined 
in the Unfunded Mandates Reform Act (UMRA) and would impose no 
costs on state, local, or tribal governments.
    The bill would impose a private-sector mandate as defined 
in UMRA by requiring employers to obtain, in writing, their 
employees' preferred method of being contacted by union 
representatives. The bill would allow employees to choose what 
type of personal contact information (telephone number, email 
address, or mailing address) to share with union organizers 
seeking to establish a union in their workplace. Because 
complying with the mandate would only entail a small change 
relative to current requirements, CBO estimates that the 
aggregate cost of the mandate would fall well below the annual 
threshold established in UMRA for private-sector mandates ($156 
million, in 2017, adjusted annually for inflation).
    The CBO staff contacts for this estimate are Christina 
Hawley Anthony (for federal costs) and Logan Smith (for 
private-sector mandates). The estimate was approved by H. 
Samuel Papenfuss, Deputy 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. 2775. 
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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

         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 (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

NATIONAL LABOR RELATIONS ACT

           *       *       *       *       *       *       *



                     representatives and elections

  Sec. 9. (a) Representatives designated or selected for the 
purposes of collective bargaining by the majority of the 
employees in a unit appropriate for such purposes, shall be the 
exclusive representatives of all the employees in such unit for 
the purposes of collective bargaining in respect to rates of 
pay, wages, hours of employment, or other conditions of 
employment: Provided, That any individual employees or a group 
of employees shall have the right at any time at present 
grievances to their employer and to have such grievances 
adjusted, without the intervention of the bargaining 
representative, as long as the adjustment is not inconsistent 
with the terms of a collective-bargaining contract or agreement 
then in effect: Provided further, That the bargaining 
representative has been given opportunity to be present at such 
adjustment.
  (b) The Board shall decide in each case whether, in order to 
assure to employees the fullest freedom in exercisiong 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 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) by an employee or group of employees or any 
        individual or labor organization acting in their behalf 
        alleging that a substantial number of employees (i) 
        wish to be represented for collective bargaining and 
        that their employer declines to recognize their 
        representative as the representative defined in section 
        9(a), or (ii) assert that the individual or labor 
        organization, which has been certified or is being 
        currently recognized by their employer as the 
        bargaining representative, is no longer a 
        representative as defind in section 9(a); or
          (B) by an employer, alleging that one or more 
        individuals or labor organizations have presented to 
        him a claim to be recognized as the representative 
        defined in section 9(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. Such hearing may be conducted by an 
officer or employee of the regional office, who shall not make 
any recommendations with respect thereto. If the Board finds 
upon the record of such hearing that such a question of 
representation exists, it shall direct an election by secret 
ballot and shall certify the results thereof. Not earlier than 
7 days after a final determination by the Board of the 
appropriate bargaining unit, the Board shall acquire from the 
employer a list of all employees eligible to vote in the 
election to be made available to all parties, which shall 
include the names of the employees, and not more than one 
additional form of personal contact information for the 
employee, (such as a telephone number, an email address, or a 
mailing address) chosen by the employee in writing.
  (2) In determining whether or not a question or 
representation affecting commerce exists, the same regulations 
and rules of decision shall apply irrespective of the identity 
of the persons filing the petition or the kind of relief sought 
and in no case shall the Board deny a labor organization a 
place on the ballot by reason of an order with respect to such 
labor organization or its predecessor not issued in conformity 
with section 10(c).
  (3) No election shall be directed in any bargaining unit or 
any subdivision within which, in the preceding twelve-month 
period, a valid election shall have been held. Employees 
engaged in an economic strike who are not entitled to 
reinstatement shall be eligible to vote under such regulations 
as the Board shall find are consistent with the purposes and 
provisions of this Act in any election conducted within twelve 
months after the commencement of the strike. In any election 
where none of the choices on the ballot receives a majority, a 
run-off shall be conducted, the ballot providing for a 
selection between the two choices receiving the largest and 
second largest number of valid votes cast in the election.
  (4) Nothing in this section shall be construed to prohibit 
the waiving of hearings by stipulation for the purpose of a 
consent election in conformity with regulations and rules of 
decision of the Board.
  (5) In determining whether a unit is appropriate for the 
purposes specified in subsection (b) the extent to which the 
employees have organized shall not be controlling.
  (d) Whenever an order of the Board made pursuant to section 
10(c) is based in whole or in part upon facts certified 
following an investigation pursuant to subsection (c) of this 
section and there is a petition for the enforcement or review 
of such order, such certification and the record of such 
investigatioon shall be included in the transcript of the 
entire record required to be filed under section 10(e) or 
10(f), and thereupon the decree of the court enforcing, 
modifying, or setting aside in whole or in part the order of 
the Board shall be made and entered upon the pleadings, 
testimony, and proceedings set forth in such transcript.
  (e)(1) Upon the filing with the Board, by 30 per centum or 
more of the employees in a bargaining unit covered by an 
agreement between their employer and a labor organization made 
pursuant to section 8(a)(3), of a petition alleging they desire 
that such authority be rescinded, the Board shall take a secret 
ballot of the employees in such unit and certify the results 
thereof to such labor organization and to the employer.
  (2) No election shall be conducted pursuant to this 
subsection in any bargaining unit or any subdivision within 
which, in the preceding twelve-month period, a valid election 
shall have been held.

           *       *       *       *       *       *       *


                             MINORITY VIEWS

    This bill overturns the National Labor Relations Board's 
(NLRB) 2015 election rule that levels the playing field by 
ensuring that a union has access to the same employee contact 
information as the employer prior to a union representation 
election. The bill tilts the playing field against workers' 
efforts to unionize by unfairly restricting employee contact 
information that an employer must provide to a union after the 
NLRB orders a union representation election, and then by 
imposing needless delays in providing such contact information. 
The bill was approved and reported out of the Committee with 22 
Republicans voting ``aye'' and all 16 Democrats present 
opposing H.R. 2775.
Background
    Since the NLRB's Excelsior Underwear decision\1\ over 60 
years ago, the NLRB has required the employer to provide a list 
of employee names and home addresses prior to a representation 
election. The ``Excelsior list'' had to be provided to the NLRB 
within 7 days of the direction of an election by the NLRB, 
which, in turn, provided the list to the union. The reason for 
this mandate was to address the problem where only one side--
the employer--had the opportunity to communicate by mail with 
all workers prior to the election, and the union did not have 
an equivalent ability to respond. The employer, unlike the 
union, is also free to contact employees one-on-one in the 
workplace, and can lawfully require employees to attend captive 
audience meetings on the worksite where they must listen to the 
employer's views regarding unionization. Given the employer's 
advantages in contacting employees during a union election, the 
Excelsior list attempts to level the playing field.
---------------------------------------------------------------------------
    \1\156 NLRB 1236 (1966).
---------------------------------------------------------------------------
    In 2015, the NLRB's election rule updated the requirements 
for the Excelsior list to better effectuate the list's purpose. 
The NLRB's current rule requires the employer to provide the 
list directly to the union in electronic form within 2 days of 
the ordering of an election.\2\ Further, the contents of the 
list now must include, in addition to the employees' names and 
home addresses, their work locations, shifts, job 
classifications, available personal email addresses, and 
available home and cell phone numbers.
---------------------------------------------------------------------------
    \2\29 C.F.R. Sec. 102.62(d).
---------------------------------------------------------------------------
Impact of the Legislation
    H.R. 2775 does not simply reverse the NLRB's 2015 rule 
governing the Excelsior list, it undermines the list's purpose. 
The bill does not replace the 2-day deadline with the 7-day 
deadline that existed prior to the rule. Instead, it mandates a 
minimum 7-day waiting period before the employer can submit the 
list to the NLRB, with no maximum timeframe for submission. The 
bill ``does not limit how long the union may be forced to wait 
for this basic information. The union could receive the list of 
voters the night before the election under EPPA,'' according to 
the testimony of Jody Calemine, General Counsel of the 
Communications Workers of America, before a June 14, 2017 
legislative hearing on H.R. 2775.\3\ Adding further delay, the 
bill requires the employer to send the list to the NLRB, rather 
than directly to the union.
---------------------------------------------------------------------------
    \3\Testimony of Guerino J. Calemine, III, Before the U.S. House of 
Representatives Subcommittee on Health, Labor, Employment, and Pensions 
(June 14, 2017) https://edworkforce.house.gov/uploadedfiles/calemine_-
_testimony.pdf.
---------------------------------------------------------------------------
    This bill goes even further by limiting the amount of 
information that the employer must include in the list. Under 
H.R. 2775, the employer only must include the employee's name 
and one of three forms of contact information--a mailing 
address, email address, or telephone number--to be selected by 
each employee and provided to his or her supervisor. This 
procedure invites intimidation, where employers can pressure 
their workers to provide outdated contact information.
    In undermining the effectiveness of the Excelsior list, 
H.R. 2775 unnecessarily interferes with settled law. The NLRB's 
2015 election rule, which governs the Excelsior list, has been 
upheld in every court where the rule has been challenged.\4\
---------------------------------------------------------------------------
    \4\Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 
F.3d 215 (5th Cir. 2016); Chamber of Commerce of the United States of 
America v. NLRB, 118 F. Supp. 3d 171 (D.C. Cir. 2015).
---------------------------------------------------------------------------
Republican Arguments Regarding Employee Privacy Are Hypothetical and 
        Are Not Supported by Evidence
    Committee Republicans contend that the new NLRB rule 
``jeopardizes the privacy of workers'' because unions will 
abuse this contact information. They rely upon anecdotes that 
have not been substantiated by NLRB complaints or proceedings.
    To assess the merits of this contention, the NLRB was asked 
whether there have been any unfair labor practice charges or 
cases adjudicated regarding the improper use of Excelsior list 
contact information by a union, or complaints filed about 
improper contact with eligible voters during a union election 
campaign using information provided through the Excelsior list. 
If such cases exist, the NLRB was asked how many of these cases 
have there been since April 2015 when the NLRB election rule 
went into effect.
    The NLRB's response: There are no such cases.\5\
---------------------------------------------------------------------------
    \5\Email communications to the Education and Workforce Committee 
Democratic staff from the NLRB, July 6, 2017.
---------------------------------------------------------------------------
    This is unsurprising since the NLRB rule states that 
``[t]he parties shall not use the list for purposes other than 
the representation proceeding, Board proceedings arising from 
it, and related matters.''\6\
---------------------------------------------------------------------------
    \6\29 CFR 102.62(d)
---------------------------------------------------------------------------
    Given the absolute lack of evidence, it appears that this 
legislation is a solution in search of a problem, and is 
nothing more than a pretext to undermine the ability of workers 
to band together and attempt to bargain with their employers to 
improve the employees' wellbeing.

     COMMITTEE DEMOCRATS OFFER AMENDMENTS TO FIX FLAWS IN H.R. 2775

    Democrats offered the following amendments to H.R. 2775 at 
the June 29, 2017 markup:

 AMENDMENT 1--TO AMEND THE TIMING AND CONTENT OF THE VOTER INFORMATION 
                                  LIST

    In order to ensure that employee contact information is 
provided to unions in a timely manner and to assure adequate 
modes of communication, Ranking Member Bobby Scott offered an 
amendment to codify the NLRB's 2015 election rule. This 
amendment requires employers to provide the union with the 
Excelsior list of eligible voters within 2 days of the 
direction of an election, instead of setting a minimum 7-day 
waiting period to provide the list to the NLRB (and not 
directly to the union) provided in the bill. The amendment 
ensures that the employer provides the employee's name, mailing 
address, phone number, or email if available. This amendment 
assures unions have access to all modes of contact information, 
in addition to work locations, shifts, and job classifications.
    The amendment was rejected 16-22, with all present 
Committee Democrats voting for the amendment.

   AMENDMENT 2--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS THAT 
           REQUIRE ACCESS TO EMPLOYEES' SOCIAL MEDIA ACCOUNTS

    In order to ensure that the Employee Privacy Protection Act 
improves employee privacy, Representative Jared Polis offered 
an amendment that would limit application of the bill to 
employers who adopt policies barring management from requiring 
employees' email and social media names, user names, and 
passwords. Currently, federal law does not protect employees 
from employers requiring such disclosures. Although 25 states 
have enacted some protections for employees, they vary greatly 
across the states.\7\ The amendment, unlike the bill text, 
actually protects the employee privacy that the bill's title 
purports to protect.
---------------------------------------------------------------------------
    \7\See, e.g. Utah Code Sec. 34-48-102 (prohibits employers from 
requiring employees to provide passwords); N.H. Rev. Stat. Sec. 275:74 
(prohibits employers from requiring passwords, requiring employees to 
add themselves to a list of contacts, or to change privacy settings of 
social media accounts). See generally State Social Media Privacy Laws, 
National Conference of State Legislatures http://www.ncsl.org/research/
telecommunications-and-information-technology/state-laws-prohibiting-
access-to-social-media-usernames-and-passwords.aspx (May 5, 2017).
---------------------------------------------------------------------------
    The amendment was rejected 16-22, with all present 
Committee Democrats voting for the amendment.

 AMENDMENT 3--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS ENGAGING 
           IN GPS TRACKING OF EMPLOYEES DURING NON-WORK HOURS

    In order to ensure that the Employee Privacy Protection Act 
actually improves employee privacy, Representative Carol Shea-
Porter offered an amendment that would limit application of the 
bill to employers who adopt policies that prohibit management 
from installing and activating GPS tracking through employer-
provided cellular phones, unless the employee provides written 
consent. Although employers may have reason to track employees 
during working hours, such tracking of employees during their 
personal time is an unwarranted violation of employees' privacy 
without any legitimate business purposes. No federal law 
currently protects employee privacy from GPS tracking by their 
employers outside working hours.
    The amendment was rejected 16-22, with all present 
Committee Democrats voting for the amendment.

AMENDMENT 4--PROTECTING EMPLOYEE PRIVACY REGARDING EMPLOYERS CONDUCTING 
       VIDEO SURVEILLANCE IN EMPLOYEE BATHROOMS AND LOCKER ROOMS

    In order to ensure that the Employee Privacy Protection Act 
actually improves employee privacy, Representative Alma Adams 
offered an amendment that would limit application of the bill 
to employers who prohibit management from conducting video 
surveillance of employees in designated private areas, such as 
bathrooms and locker rooms. Although at least six states have 
codified this principle, most jurisdictions allow this 
surveillance and no federal protections exist.\8\
---------------------------------------------------------------------------
    \8\See Cal. Lab. Code Sec. 435; Conn. Gen. Stat. Sec. 31-48b; Del. 
Code tit. 11, Sec. 1335; N.Y. Lab. Law Sec. 203-c; R.I. Gen. Laws 
Sec. 28-6.12-1; W. Va. Code Sec. 21-3-20.
---------------------------------------------------------------------------
    The amendment was rejected 17-21, with all present 
Committee Democrats and one Republican voting for the 
amendment.

AMENDMENT 5--TO SUBSTITUTE THE TEXT OF THE BILL WITH THE GIVING WORKERS 
                            A FAIR SHOT ACT

    Representative Polis offered an amendment to replace the 
bill with the Giving Workers a Fair Shot Act (H.R. 2275). This 
amendment promotes collective bargaining by authorizing 
mandatory arbitration for a first contract following an 
election if the parties cannot reach agreement after a 
reasonable period of time. It also prohibits federal 
contractors from seeking reimbursement for union avoidance 
activity, and prohibits the CEO and Chairman of a publically 
traded company from being the same person. The bill also 
establishes monetary sanctions for violations of the NLRA, and 
strengthens the enforcement of the Occupational Safety and 
Health Act, the Fair Labor Standards Act, the Federal Mine 
Safety and Health Act, and the Migrant and Seasonal 
Agricultural Worker Protection Act.
    The amendment was ruled non-germane. The appeal of the 
ruling was tabled on a vote of 22-16, with all present 
Committee Democrats voting for the amendment.

                                   Robert C. ``Bobby'' Scott,
                                           Ranking Member.
                                   Susan A. Davis.
                                   Raul M. Grijalva.
                                   Joe Courtney.
                                   Marcia L. Fudge.
                                   Jared Polis.
                                   Gregorio Kilili Camacho Sablan.
                                   Frederica S. Wilson.
                                   Suzanne Bonamici.
                                   Mark Takano.
                                   Alma S. Adams.
                                   Mark DeSaulnier.
                                   Donald Norcross.
                                   Lisa Blunt Rochester.
                                   Raja Krishnamoorthi.
                                   Carol Shea-Porter.
                                   Adriano Espaillat.

                                  [all]