[House Report 115-326]
[From the U.S. Government Publishing Office]




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115th Congress     }                                  {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session       }                                  {        115-326
======================================================================



 
                  WORKFORCE DEMOCRACY AND FAIRNESS 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. 2776]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Education and the Workforce, to whom was 
referred the bill (H.R. 2776) to amend the National Labor 
Relations Act with respect to the timing of elections and pre-
election hearings and the identification of pre-election 
issues, 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. PRE-ELECTION HEARINGS.

  Section 9(c)(1) of the National Labor Relations Act (29 U.S.C. 
159(c)(1)) is amended in the matter following subparagraph (B)--
          (1) by inserting ``, but in no circumstances less than 14 
        calendar days after the filing of the petition'' after ``upon 
        due notice'';
          (2) by inserting after ``with respect thereto.'' 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 may reasonably be 
        expected to impact the outcome of the election. Parties may 
        independently raise any relevant and material pre-election 
        issue or assert any relevant and material position at any time 
        prior to the close of the hearing.''; and
          (3) by striking ``and shall certify the results thereof'' and 
        inserting ``to be conducted as soon as practicable but no 
        earlier than 35 calendar days after the filing of an election 
        petition. The Board shall certify the results of the election 
        after it has ruled on each pre-election issue not resolved 
        before the election and any additional issue pertaining to the 
        conduct or results of the election''.

SEC. 3. DETERMINATION OF APPROPRIATE UNITS FOR COLLECTIVE BARGAINING.

  Section 9(b) of the National Labor Relations Act (29 U.S.C. 159(b)) 
is amended--
          (1) by redesignating paragraphs (1) through (3) as 
        subparagraphs (A) through (C), respectively;
          (2) by striking ``The Board shall decide'' and all that 
        follows through ``or subdivision thereof:'' and inserting the 
        following: ``(1) 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 any 
        bargaining unit determination promulgated through rulemaking 
        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--
          ``(A) similarity of wages, benefits, and working conditions;
          ``(B) similarity of skills and training;
          ``(C) centrality of management and common supervision;
          ``(D) extent of interchange and frequency of contact between 
        employees;
          ``(E) integration of the work flow and interrelationship of 
        the production process;
          ``(F) the consistency of the unit with the employer's 
        organizational structure;
          ``(G) similarity of job functions and work; and
          ``(H) the bargaining history in the particular unit and the 
        industry.
To avoid the proliferation or fragmentation of bargaining units, no 
employee shall be excluded from the unit unless the interests of the 
group seeking a separate unit 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 determined 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.''; and
          (3) by striking ``Provided, That the Board'' and inserting 
        the following:
  ``(2) The Board''.

                                Purpose

    The Workforce Democracy and Fairness Act, H.R. 2776, 
reverses the National Labor Relations Board's (NLRB or Board) 
August 26, 2011, decision in Specialty Healthcare and 
Rehabilitation Center of Mobile\1\ (Specialty Healthcare), and 
reverses the NLRB's December 15, 2014, final representation-
case procedures rule\2\ (the ambush election rule). The 
legislation ensures cohesion in the workplace, employee free 
choice, and employer free speech, without upsetting any other 
current law.
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    \1\357 NLRB 934, 940 (2011)
    \2\79 Fed. Reg. at 74308.
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                            Committee Action


                             112TH CONGRESS

Subcommittee Hearing on Concerns about the NLRB's Harmful Actions

    On February 11, 2011, the Subcommittee on Health, 
Employment, Labor, and Pensions (HELP) of the Committee on 
Education and the Workforce (Committee) held a hearing on 
``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 that mandated employers display 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 were 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.

Committee Hearing on NLRB's Unprecedented Rulemaking

    On July 7, 2011, the Committee heard testimony on the 
NLRB's proposed election procedure regulation in a hearing on 
``Rushing Union Elections: Protecting the Interests of Big 
Labor at the Expense of Workers' Free Choice.'' Witnesses 
agreed the cumulative changes in 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 
were the Honorable Peter C. Schaumber, former National Labor 
Relations Board 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.

Committee Hearing on NLRB's Decision to Disenfranchise 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.'' At the end of August 2011, the NLRB 
issued a number of biased, anti-worker decisions, including 
Specialty Healthcare. Additionally, the Board finalized a rule 
requiring almost every employer to post a vague, union-biased 
notice on employee rights under the National Labor Relations 
Act (NLRA). The Board's unbridled overreach of authority 
demanded a complete examination by the Committee. Witnesses 
were 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.

Introduction of H.R. 3094, Workforce Democracy and Fairness Act

    On October 5, 2011, then-Chairman John Kline (R-MN) 
introduced H.R. 3094, the Workforce Democracy and Fairness Act, 
with 26 cosponsors. Recognizing the NLRB had gone far beyond 
its statutorily assigned role as 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 
fully informed decisions in union elections; 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 testified the Board had 
overturned decades of precedent to facilitate union organizing 
at the cost of employee free choice and employer free speech 
and these actions would have devastating economic consequences 
for the country. Witnesses were 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 Passage 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 to clarify that years of labor policies affecting 
the acute health care industry remain in place; limit pre-
election issues to those that are relevant and material; and 
reaffirm the Board's responsibility to grant or deny requests 
for review of regional directors' decisions before an election. 
Nine additional amendments were offered and debated; however, 
no amendments beyond the substitute were adopted. The Committee 
favorably reported the bill, as amended, 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. 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 
Senate failed to act on the bill before the conclusion of the 
112th Congress.

                             113TH CONGRESS

Subcommittee Hearing on Union Organizing

    On September 19, 2013, the HELP Subcommittee held a hearing 
on ``The Future of Union Organizing.'' The hearing reviewed the 
application of Specialty Healthcare and 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, 
Proskauer Rose, 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.'' Witnesses testified the proposed ambush 
election rule\3\ would considerably shorten the time between 
the filing of the petition and the election date and 
substantially limit the opportunity for a full evidentiary 
hearing or Board resolution of contested issues, including 
appropriate bargaining unit, voter eligibility, and election 
misconduct. Witnesses were 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. Sencer, 
Esq., Shareholder, Weinberg, Roger & Rosenfeld P.C., Alameda, 
California; and, Mr. William Messenger, Staff Attorney, 
National Right to Work Legal Defense Foundation, Inc., 
Springfield, Virginia.
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    \3\Representation-Case Procedures, 79 Fed. Reg. 74308, 7318 (Dec. 
15, 2014).
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Introduction of H.R. 4320, Workforce Democracy and Fairness Act

    On March 27, 2014, then-Chairman Kline introduced H.R. 
4320, the Workforce Democracy and Fairness Act, with 20 
cosponsors. The legislation largely mirrored H.R. 3094, the 
Workforce Democracy and Fairness Act, as introduced in the 
112th Congress. Recognizing the NLRB's ambush election rule 
would fundamentally alter representational elections to the 
detriment of employers and employees, provisions were added to 
(1) ensure employers were able to participate in a fair union 
election and (2) guarantee workers had the ability to make a 
fully informed decision in a union election.

Committee Passage of H.R. 4320, Workforce Democracy and Fairness Act

    On April 9, 2014, the Committee considered H.R. 4320, the 
Workforce Democracy and Fairness Act. Chairman Kline offered an 
amendment in the nature of a substitute, making a technical 
change to clarify the legislation applies to representational 
elections. Four additional amendments were offered and debated. 
Rep. Tom Price's (R-GA) amendment codifying the NLRB's 
bargaining unit determination standard prior to Specialty 
Healthcare was adopted by a vote of 21 to 13. The Committee 
favorably reported H.R. 4320, as amended, to the House of 
Representatives by a vote of 21 to 14. The Senate failed to act 
on the bill before the end of the 113th Congress.

Committee Hearing on Unionization of Student Athletes

    On May 8, 2014, the Committee held a hearing entitled ``Big 
Labor on College Campuses: Examining the Consequences of 
Unionizing Student Athletes.'' Witnesses testified the recent 
NLRB ruling declaring student athletes to be employees under 
the NLRA risked bringing micro-unions and ambush elections to 
college and university campuses further perpetuating the issues 
seen in non-collegial settings. Witnesses were the Honorable 
Ken Starr, President and Chancellor, Baylor University, Waco, 
Texas; Mr. Bradford L. Livingston, Partner at Seyfarth Shaw 
LLP, Chicago, Illinois; Mr. Andy Schwarz, Partner, OSKR LLC, 
Emeryville, California; Mr. Bernard M. Muir, Director of 
Athletics, Stanford University, Stanford, California; and, Mr. 
Patrick C. Eilers, Managing Director, Madison Dearborn 
Partners, Chicago, Illinois.

Subcommittee Hearing on Recent NLRB Decisions

    On June 24, 2014, the HELP Subcommittee held a hearing on 
``What Should Workers and Employers Expect Next from the 
National Labor Relations Board?'' Witnesses testified NLRB 
actions, including decisions restricting employee access to 
secret ballots, imposing ambush elections, and encouraging 
micro-unions, had generated uncertainty and confusion for 
employers, hurting job creation and growth. Witnesses were Mr. 
Seth H. Borden, Partner, McKenna Long & Aldridge LLP, New York, 
New York; Mr. James Coppess, Associate General Counsel, AFL-
CIO, Washington, D.C.; Mr. G. Roger King, Of Counsel, Jones 
Day, Columbus, Ohio; and, Mr. Andrew F. Puzder, CEO, CKE 
Restaurants, Carpinteria, California.

                             114TH CONGRESS

Subcommittee Legislative Hearing on H.J. Res. 29, Providing for 
        Congressional Disapproval of the 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.'' The Joint 
Resolution disapproved and nullified the rule submitted by the 
NLRB and published on December 15, 2014. At the hearing, 
witnesses testified to the urgent need for Congress to overturn 
the NLRB's ambush election rule, which would have negative 
consequences for workers and families. Witnesses at this 
hearing were Ms. Brenda Crawford, Registered Nurse, Murrieta, 
California; Mr. Roger King, Senior Labor and Employment 
Counsel, on behalf of the Retail Industry Leaders Association, 
Washington, D.C.; Mr. Arnold E. Perl, Member, Glankler Brown 
PLLC, Memphis, Tennessee, and, Mr. Glenn M. Taubman, Staff 
Attorney, National Right to Work Legal Defense and Educational 
Foundation, Inc., Springfield, Virginia.

Introduction of H.R. 1768, Workforce Democracy and Fairness Act

    On April 14, 2015, then-Chairman Kline introduced H.R. 
1768, the Workforce Democracy and Fairness Act, with two 
cosponsors. The text of H.R. 1768 was identical to that of H.R. 
4320 as amended by the Committee in April 2014.

                             115TH CONGRESS

Subcommittee Hearing on the Need to Restore Balance 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 decried the extreme, partisan 
decisions of the NLRB during the Obama administration, 
including the ambush election rule, and stressed the need for a 
return to a balance between workers, employers, and unions in 
the Board's rulings. Witnesses at this hearing 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, National 
Right to Work Legal Defense and Education Foundation, 
Springfield, Virginia; and, Mr. Kurt G. Larkin, Partner, Hunton 
& Williams LLP, Richmond, Virginia.

Introduction of H.R. 2776, Workforce Democracy and Fairness Act

    On June 6, 2017, HELP Subcommittee Chairman Tim Walberg (R-
MI) introduced H.R. 2776, the Workforce Democracy and Fairness 
Act, with six cosponsors. The text of H.R. 2776 is identical to 
the text of H.R. 1768, which was referred to the Committee in 
April 2015 but not acted on prior to the conclusion of the 
114th Congress.

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.'' Among other topics, witnesses testified about the 
need for H.R. 2776 to fix the problems created by the activist-
NLRB related to the ambush election rule. Witnesses at this 
hearing were Mr. Seth H. Borden, Partner, McGuireWoods LLP, New 
York, New York; 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.

                                Summary

    The Workforce Democracy and Fairness Act (1) codifies the 
traditional standard for determining an appropriate bargaining 
unit and the traditional standard used to challenge a 
petitioned-for bargaining unit; (2) requires the Board to rule 
prior to the election on challenges to composition of the 
bargaining unit; (3) ensures employers have at least 14 days to 
prepare for pre-election hearings; (4) allows parties to raise 
relevant and material pre-election issues as pre-election 
hearing records are developed; (5) provides employees with at 
least 35 days to consider whether they wish to be represented 
by a union; and (6) ensures parties may request a post-election 
Board review of regional directors' decisions.
    The legislation reverses the NLRB's August 26, 2011, 
decision in Specialty Healthcare and the NLRB's ambush election 
rule. The legislation ensures cohesion in the workplace, 
employee free choice, and employer free speech.

                            Committee Views

    In 1935, Congress passed the NLRA, guaranteeing the right 
of most private sector employees to organize and select their 
own representative.\4\ In 1947, Congress passed the Taft-
Hartley Act,\5\ the most significant amendment of the NLRA, 
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.''\6\ The Taft-Hartley Act clarified 
employees have the right to refrain from participating in union 
activity,\7\ created new union unfair labor practices,\8\ 
codified employer free speech,\9\ and made changes to the 
determination of bargaining units.\10\
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    \4\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).
    \5\29 U.S.C. Sec. 141 et. seq.
    \6\Archibald Cox, Some Aspects of the Labor Management Relations 
Act of 1947, 61 Harv. L. Rev. 1, 4 (1947).
    \7\29 U.S.C. Sec. 157.
    \8\Id. Sec. 158.
    \9\Id. Sec. 158(c).
    \10\Id. Sec. 159(d).
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    The NLRA established the NLRB as an independent federal 
agency to fulfill two principal functions: (1) prevent and 
remedy employer and union unlawful acts, called unfair labor 
practices; 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.\11\
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    \11\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
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    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.\12\ In general, NLRB rulings, 
regulations, and internal policies establish specific 
representational election procedures.\13\
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    \12\29 USC Sec. 159.
    \13\79 Fed. Reg. at 7319.
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    The representational 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.\14\ 
If a petition is 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.\15\
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    \14\National Labor Relations Board Casehandling Manual 
para.11002.2-11002.3.
    \15\Id. para.11003.1 and 11023.1.
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Previous Representational Election Process

    Prior to the December 2015 ambush election rule, the 
regional director,\16\ upon receiving a petition, would issue a 
notice of hearing and serve the following on the employer: the 
petition, a generic notice of employees' rights, and a 
Questionnaire on Commerce to receive information relevant to 
the Board's jurisdiction.\17\ Additionally, the regional 
director would ordinarily request a list of employees in the 
petitioned-for unit and their job classifications to determine 
whether 30 percent of employees were interested in 
representation and the employer's position as to the 
appropriateness of the unit described in the petition.\18\
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    \16\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) determine the 
appropriate bargaining unit; (3) direct the election; (4) certify the 
results of the election; and (5) make findings and issue rulings on 
objections and challenged ballots.
    \17\Id. para.11009.
    \18\Id. para.11009.1.
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    These official requests by the regional director were then 
followed up by telephone consultations, meetings, and joint 
conference calls with the parties prior to pre-election hearing 
to resolve outstanding issues and secure an election 
agreement.\19\ If parties agreed on representational issues, 
they could enter into one of three types of election 
agreements: (1) consent election agreement, (2) stipulated 
election agreement, or (3) full consent election agreement.\20\
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    \19\Id. para.11012.
    \20\Id. para.11084. (In consent agreements, post-election issues 
are decided by the regional director. In stipulated agreements, post-
election issues are decided by the Board. There are no outstanding 
issues in full consent election agreements; therefore, no review is 
necessary.)
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    In cases where parties could not reach an election 
agreement, a Board agent would conduct a pre-election hearing 
to develop and record evidence upon which the Board could 
discharge its duties under Section 9 of the NLRA.\21\ The 
hearing was investigatory and non-adversarial.\22\ Parties 
could 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.\23\ The employer could petition for 
inclusion of additional employees in the bargaining unit by 
showing the additional employees shared a ``sufficient 
community of interest'' with the petitioned-for unit.
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    \21\National Labor Relations Board Casehandling Manual para.11181.
    \22\Id.
    \23\79 Fed. Reg. at 7324.
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    In most cases, the regional director would either direct an 
election or dismiss the petition. Under these procedures in 
2013, the median time between the notice of hearing and the 
close of the pre-election hearing was 13 days.\24\ The median 
time between the close of the pre-election hearing and the 
regional director's decision was 20 days.\25\
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    \24\E-mail from Celine McNicholas, Special Counsel, National Labor 
Relations Board, to Marvin Kaplan, Workforce Policy Counsel, House 
Education and the Workforce Committee (Mar. 3, 2014, 12:22 EST) (on 
file with author).
    \25\Id.
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    To ensure uniform and consistent application, parties could 
appeal to the Board the regional director's pre- and post-
election decisions. Unless waived in a pre-election agreement, 
parties could obtain Board review of the regional director's 
disposition of election objections and challenges post-election 
by filing exceptions.\26\
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    \26\79 Fed. Reg. at 7325.
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    This previous Board process was effective in expeditiously 
resolving questions concerning representation while maintaining 
the rights of employees and employers. For all petitions filed 
in the final full year before the new rule went into effect, 
the median time from the filing of a petition to an election 
was 38 days.\27\ Additionally, unions won more than two-thirds 
of representational elections in that time period.\28\
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    \27\NLRB, MEDIAN DAYS FROM PETITION TO ELECTION (2017), https://
www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-
days-petition-election.
    \28\NLRB, REPRESENTATION PETITIONS (2017), https://www.nlrb.gov/
news-outreach/graphs-data/petitions-and-elections/representation-
petitions-rc.
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            A. The Ambush Election Rule
    In February 2014, in a rare exercise of formal rulemaking, 
the NLRB published a Notice of Proposed Rulemaking, which 
became a final rule on December 15, 2014, and went into effect 
on April 14, 2015.\29\ The rule shortens the length of time in 
which a union representational election can be held to as 
little as 11 days. The rule also requires employers to complete 
a Statement of Position in which the employer must raise all 
pre-election issues challenging the legality of the union's 
organizing campaign or forfeit all rights to pursue those 
issues. Additionally, the rule expands the information provided 
to unions to include employee phone numbers, email addresses, 
and shift times and locations. The rule also delays Board 
review until after the election. Taken together, the rule 
substantially shortens the time between filing of a petition 
and the election date, and it limits the opportunity for a full 
evidentiary hearing or Board review on contested issues.
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    \29\79 Fed. Reg. at 7324.
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    In March 2015, the House and Senate passed a joint 
resolution of disapproval (S.J. Res. 8) of the new rule under 
the Congressional Review Act. The joint resolution was vetoed 
by President Obama on March 31, 2015.
    To speed up the representational election process, the 
Board's rule: (1) replaced the Questionnaire on Commerce 
Information with a Statement of Position; (2) set pre-election 
hearings to begin seven days after the petition is filed: (3) 
delayed voter eligibility issues until after the election: and 
(4) made post-election Board review discretionary.\30\
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    \30\Id.
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    The newly required Statement of Position solicits the 
parties' positions on: (1) the Board's jurisdiction; (2) the 
appropriateness of the petitioned-for unit; (3) any proposed 
exclusions from the petitioned-for unit; (4) the existence of 
any bar to the election; (5) the types, dates, times, and 
locations of the election; and (6) any other issues that a 
party intends to raise at the hearing.\31\ With few exceptions, 
issues not raised in the Statement of Position will be 
waived.\32\ The Statement of Position is due no later than the 
date of the pre-election hearing, that is, seven days from the 
filing of the petition.\33\
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    \31\Id. at 7328.
    \32\Id.
    \33\Id.
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    Under the rule, disputes concerning the eligibility or 
inclusion of individual employees that represent less than 20 
percent of the unit are resolved, if necessary, after the 
election.\34\ 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.''\35\
---------------------------------------------------------------------------
    \34\Id. at 7330.
    \35\Id. at 7331.
---------------------------------------------------------------------------
    The rule also eliminates pre-election Board review.\36\ All 
pre-election rulings not rendered moot remain subject to Board 
review post-election.\37\ Regional directors are no longer 
required to provide at least 25 days between the issuance of 
the decision and the election to allow Board review.\38\
---------------------------------------------------------------------------
    \36\Id. at 7333.
    \37\Id.
    \38\29 C.F.R. 101.21(d).
---------------------------------------------------------------------------
    The Board's majority asserted the rule was implemented to 
``remove unnecessary barriers to the fair and expeditious 
resolution of questions concerning representation.''\39\ 
However, the Board made no ``attempt to identify particular 
problems in cases where the process has failed.''\40\ In the 
opinion of former NRLB Member Brian Hayes, ``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.''\41\ Testifying at a 2011 hearing, Former NLRB 
Chairman Peter Schaumber agreed the election process was not 
the source of delays.\42\ As Member Hayes has also noted, 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.''\43\ It is the Committee's view the Board 
sought to address a problem that does not exist.
---------------------------------------------------------------------------
    \39\Id. at 7337.
    \40\76 Fed. Reg. at 36833.
    \41\Id. at 36831.
    \42\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).
    \43\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.
---------------------------------------------------------------------------
            B. Specialty Healthcare and Rehabilitation Center of Mobile
    On August 26, 2011, in Specialty Healthcare,\44\ the Board 
majority articulated a new standard for determining the 
composition of bargaining units. Under this new standard, if 
the union-proposed bargaining unit is made up of a readily 
identifiable group\45\ and the Board finds the employees in the 
group share a ``community of interest,'' the Board will find 
the proposed unit appropriate.\46\ Any party seeking to enlarge 
the unit must demonstrate employees in the larger unit share an 
``overwhelming community of interest'' with those in the 
petitioned-for unit.\47\ 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.\48\ While the Specialty 
Healthcare case dealt specifically with non-acute healthcare, 
the Board decision significantly affects all industries.\49\ 
NLRB regional offices ``will have little option but to find 
almost any petitioned-for unit appropriate.''\50\ 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.''\51\ Under the new standard, it is 
``virtually impossible for a party opposing th[e] unit to prove 
that any excluded employees should be included.''\52\
---------------------------------------------------------------------------
    \44\357 NLRB No. 83 (Aug. 26, 2011).
    \45\Such as employees that make up a job classification, 
department, or work location.
    \46\357 NLRB No. 83, 12 (Aug. 26, 2011).
    \47\Id. at 6.
    \48\Id. at 12.
    \49\Id. at 18.
    \50\Id. at 20.
    \51\Culture of Union Favoritism: Recent Actions of the National 
Labor Relations Board: Hearing before the H. Comm. on Educ. and the 
Workforce, 112th Cong. at 13 (2011) (written testimony of Curtis Mack).
    \52\Id. at 19.
---------------------------------------------------------------------------
    Under Specialty Healthcare, the NLRB has approved 
fragmented petitioned-for units despite past precedent, and 
subsequent challenges to the unit have been unsuccessful. For 
example, on July 22, 2014, in Macy's, Inc.,\53\ the NLRB 
determined that cosmetics and fragrance employees at the Macy's 
store in Saugus, Massachusetts, are an appropriate unit for 
collective bargaining.\54\ Despite past precedent that the 
appropriate unit is a store-wide unit\55\ and extensive 
evidence that all sales associates share a community of 
interest,\56\ in the opinion of the Board majority,\57\ the 
employer had not ``demonstrated that its other selling 
employees share an overwhelming community of interest with the 
cosmetics and fragrances employees.''\58\ While the NLRB 
rejected a unit consisting of employees in the salon and 
contemporary shoes departments at a Manhattan Bergdorf Goodman 
in The Neiman Marcus Group, Inc., it appears to endorse an even 
smaller unit consisting of only those employees in a certain 
shoes department.\59\
---------------------------------------------------------------------------
    \53\Macy's Inc, 361 NLRB No. 4 (2014).
    \54\Id. at 1.
    \55\Bullocks, Inc., d/b/a I. Magnin & Co., 119 NLRB 642 (1957).
    \56\Macy's, supra note 53 at 22-3.
    \57\Member Miscimarra dissented and Member Johnson recused himself.
    \58\Macy's, supra note 53 at 19.
    \59\The Neiman Marcus Group, Inc., 361 NLRB No. 11, 3 (2014).
---------------------------------------------------------------------------
            C. Implications of the New Representation Election Process 
                    and Specialty Healthcare
    The NLRB's representational election rule restricts an 
employer's ability to communicate with his or her employees, 
cripples an employee's ability to make an informed decision as 
to unionization, increases litigation, and decreases election 
agreements. The August 26, 2011, Specialty Healthcare decision 
has fractured workplaces, increased labor costs and decreased 
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.\60\ The 
Supreme Court noted Congress's express protection of free 
debate:
---------------------------------------------------------------------------
    \60\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 or 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).\61\
---------------------------------------------------------------------------
    \61\Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008).

    The new election procedures effectively eliminate an 
employer's opportunity to communicate with his or her 
employees. Under the new election procedures, representational 
elections will be held in as little as 11 days.\62\ An employer 
could spend the first seven days finding legal representation 
and preparing for the pre-election hearing, leaving as little 
as four days to educate employees and rebut misinformation.
---------------------------------------------------------------------------
    \62\76 Fed. Reg. 36831.
---------------------------------------------------------------------------
    In contrast, a union seeking to organize employees will 
have weeks, maybe years, to covertly lobby employees while 
collecting authorization cards. Unlike the employer, the union 
can promise employees increased wages, benefits, and vacation 
time with few restrictions under the law.\63\ While employees 
are likely to receive extensive information from the union on 
the benefits of unionization, they are 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 and market competitiveness.\64\ When 
the union has garnered sufficient support, it selects the date 
and time for filing the petition.\65\
---------------------------------------------------------------------------
    \63\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., at 15 (2011) (written testimony 
of Peter Schaumber).
    \64\Id.
    \65\Id.
---------------------------------------------------------------------------
    At the Committee's July 7, 2011, hearing entitled ``Rushing 
Union Elections: Protecting the Interests of Big Labor at the 
Expense of Workers' Free Choice,'' Mr. 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 
its entire employee base.\66\ This was the first time Mr. Carew 
had heard about the organizing drive.\67\ Speaking of the 
organizing drive at Carew Concrete, Mr. Carew testified: 
``[E]mployees would receive mail containing not enough 
information, misinformation, and misleading information on 
issues such as striking, healthcare 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.''\68\ Mr. Carew was forced to shut down 
temporarily portions of his business to educate supervisors and 
managers to ensure they did not violate the NLRA and to counter 
misinformation.\69\
---------------------------------------------------------------------------
    \66\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., at 3 (2011) (written testimony of 
John Carew).
    \67\Id.
    \68\Id.
    \69\Id.
---------------------------------------------------------------------------
    At the same hearing, Mr. 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.\70\
---------------------------------------------------------------------------
    \70\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., at 2 (2011) (written testimony of 
Larry Getts).

    While Mr. Getts stated he and his fellow employees would 
have appreciated hearing the views of his employer, he did not 
have access to a robust debate.\71\ His employer had signed a 
neutrality agreement.\72\ Since he and his fellow employees 
were not hearing opposing points of view, Mr. Getts took it 
upon himself to research and verify everything they were 
told.\73\
---------------------------------------------------------------------------
    \71\Id.
    \72\Id.
    \73\Id.
---------------------------------------------------------------------------
    Mr. Raymond LaJeunesse of the National Right to Work Legal 
Defense Foundation testified at a February 14, 2017 HELP 
Subcommittee hearing that the shortened timeframe will infringe 
upon workers' rights: ``[T]he shortened time-frame for 
representation elections has adversely affected the ability of 
individual employees to fully educate themselves about the pros 
and cons of monopoly union representation, and hampered the 
ability of employees opposed to union representation to 
organize themselves in opposition to unions and timely obtain 
legal counsel.''\74\
---------------------------------------------------------------------------
    \74\Restoring Balance and Fairness to the National Labor Relations 
Board, Hearing before the Subcomm. on Health, Employment, Labor and 
Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong., at 10 
(2017) (written testimony of Raymond J. LaJeunesse) [hereinafter 
LaJeunesse Testimony].
---------------------------------------------------------------------------
    While testifying before a June 14, 2017, HELP Subcommittee 
legislative hearing on H.R. 2776, labor attorney Mr. Seth H. 
Borden noted:

          The changes in the 2015 Rule changes were, at best, a 
        proposed solution in search of a problem. To the extent 
        they were intended simply to increase union success in 
        organizing, they did so by limiting employer free 
        speech rights protected by Section 8(c) of the National 
        Labor Relations Act . . . and infringing on the Section 
        7 rights of employees to refrain from union 
        representation.\75\
---------------------------------------------------------------------------
    \75\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., at 3 (2017) (written testimony of 
Seth Borden) [hereinafter Borden Testimony].

    At the same hearing, Ms. Nancy McKeague of the Society for 
Human Resource Management also raised concerns about the 
ability of employers to properly and legally communicate with 
---------------------------------------------------------------------------
their employees during a shortened election. She testified:

          The ambush election rule significantly impairs small 
        employers' ability in responding to petitions in an 
        accelerated manner and presents significant burdens for 
        large employers with diverse and significant voting 
        units. For example, small employers may not have an HR 
        professional on staff or access to legal counsel that 
        specializes in labor issues.\76\
---------------------------------------------------------------------------
    \76\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., at 3 (2017) (written testimony of 
Nancy McKeague) [hereinafter McKeague Testimony].

    The expedited timeframe for representational elections in 
the NLRB's 2015 rule 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 Position, combined with the new 
timeframe for the start of the pre-election hearing and delays 
in unit composition determinations, will increase conflict 
between labor and management during representational elections, 
thereby decreasing the number of election agreements and 
increasing costs for employers and taxpayers.
    As outlined above, the rule requires parties to complete a 
Statement of Position within seven days of receiving the 
election petition. With few exceptions, failure to state a 
position precludes a party from raising the issue at the pre-
election hearing. Mr. Robert Sullivan, testifying on behalf of 
the Retail Industry Leaders Association (RILA) at an October 
12, 2011, hearing stated these requirements ``will wreak havoc 
with small and large employers.''\77\ Small employers will have 
access to factual information, but they will not have in-house 
experts to evaluate the legal issues.\78\ 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.\79\
---------------------------------------------------------------------------
    \77\H.R. 3094, The Workforce Democracy and Fairness Act: 
Legislative Hearing before the H. Committee on Educ. and the Workforce, 
112th Cong., at 8 (2011) (written testimony of Robert Sullivan) 
[hereinafter Sullivan Testimony].
    \78\Id.
    \79\Id. at 9.
---------------------------------------------------------------------------
    This situation has been further complicated by the 
Specialty Healthcare decision. At a Committee hearing on March 
5, 2014, entitled ``Culture of Union Favoritism: The Return of 
the NLRB's Ambush Election Rule,'' labor attorney Ms. Doreen 
Davis highlighted the difficulty of determining whether 
employees share an ``overwhelming community of interest'' and 
questioned whether seven days provided sufficient time to 
prepare for the pre-election hearing:

          [U]nder the current rules, sometimes we are required 
        to [prepare for the pre-election hearing] as soon as 10 
        days [after the petition for election is filed], but 
        not 7 days, and under the current rules, we can 
        litigate at the pre-election conference. . . . We 
        haven't waived issues that weren't raised in the pre-
        election conference. . . . Under the new rules, there 
        would be no opportunity to do that, unless you had 
        stated it in your statement of position, which is due 
        no later than 7 days after the petition is filed. So it 
        is very challenging for small employers. It is equally 
        challenging for large employers, because as an outside 
        counsel, I have to learn their business, how it 
        operates, which group of employees interact with whom, 
        which employees have a community of interest with 
        others. Do they have similar wages, hours, working 
        conditions, supervision? Is what they do at that 
        company related to what another employee does and how? 
        There are many things that have to be learned in order 
        to effectively represent an employer in these kinds of 
        proceedings, and that is all being very much short-
        circuited under these proposed rules.\80\
---------------------------------------------------------------------------
    \80\Culture of Union Favoritism: The Return of the NLRB's Ambush 
Election Rule: Hearing before the H. Comm. on Educ. and the Workforce, 
113th Cong., (2014). (written testimony of Doreen S. Davis).

    With only seven days to prepare the Statement of Position 
for the start of the pre-election hearing, there is little 
opportunity to reach election agreements.\81\ 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.\82\ Former NLRB 
Chairman Schaumber stated ``the sum total of these rules is you 
are going to have far fewer pre-election agreements.''\83\ 
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.
---------------------------------------------------------------------------
    \81\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., at 44 (2011).
    \82\Id.
    \83\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., at 78-79 (2011).
---------------------------------------------------------------------------
    Furthermore, leaving open questions, such as the 
composition of the bargaining unit, could result in significant 
problems for employers. At a February 14, 2017, HELP 
Subcommittee hearing entitled ``Restoring Balance and Fairness 
to the National Labor Relations Board,'' attorney Mr. Kurt 
Larkin of Hunton and Williams, LLP testified about this issue:

          [I]f an employer believes an employee in the proposed 
        unit is a statutory supervisor, it cannot obtain a 
        determination whether the individual should be excluded 
        from the bargaining unit until after the election. This 
        presents an obvious conundrum for the employer: it can 
        treat the employee as a supervisor during the campaign, 
        and risk unfair labor practice liability for doing so, 
        or it can back off, and lose the ability to campaign 
        through an individual who may well not even be eligible 
        to vote.\84\

    \84\Restoring Balance and Fairness to the National Labor Relations 
Board: Hearing before the Subcomm. on Health, Employment, Labor and 
Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong., at 5 
(2017) (written testimony of Kurt Larkin) [hereinafter Larkin 
Testimony].
---------------------------------------------------------------------------
    Delaying unit composition issues until after the election 
could increase the number of elections that must be rerun. Pro-
union activity by supervisors may taint the election if 
employees falsely conclude the employer favors the union or if 
employees support the union out of fear of retaliation.\85\ 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.\86\ 
Every rerun election and unfair labor practice charge will cost 
taxpayer dollars and increase employer legal costs.
---------------------------------------------------------------------------
    \85\Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st Cir. 1981).
    \86\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).
---------------------------------------------------------------------------
            Fragmentation of the Workforce
    The Specialty Healthcare standard for determining the 
composition of an appropriate bargaining unit will allow unions 
to gerrymander the bargaining unit, encourage incremental 
organizing of units that support unionization, and lead to 
fragmentation in the workplace. In his June 2017 testimony, Mr. 
Borden summarized the new standard as ``a drastic departure 
from the traditional standard employed by the Board for 
decades.''\87\
---------------------------------------------------------------------------
    \87\Borden, supra note 74 at 7.
---------------------------------------------------------------------------
    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 
supporting the union.\88\ Mr. Larkin stated the new standard 
has ``the practical effect of allowing unions to seek 
bargaining units that reflect little more than the extent to 
which they have been successful in recruiting employees who 
support unionization.''\89\
---------------------------------------------------------------------------
    \88\Specialty Healthcare, 357 NLRB No. 83, 19.
    \89\Larkin, supra note 84 at 9.
---------------------------------------------------------------------------
    As a result, instead of one unit, employers have to bargain 
with multiple units, increasing fragmentation and 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.\90\
---------------------------------------------------------------------------
    \90\Sullivan, supra note 77 at 4.
---------------------------------------------------------------------------
    Moreover, this new standard is detrimental to workers. 
Drawing lines between departments limits flexibility and 
employee opportunities. As explained by Mr. Robert Sullivan 
during the October 12, 2011, Committee hearing, if employees 
are divided by department, such as sporting goods divided from 
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.\91\ Additionally, opportunities for advancement 
into management would be limited without cross-training.\92\ 
Ms. McKeague noted in her June 2017 testimony before the HELP 
Subcommittee that the Specialty Healthcare standard 
``discourages teamwork rather than offering solutions that 
balance the needs of an individual department with the needs of 
the whole operation.''\93\ In February 2017, Mr. LaJeunesse 
further detailed the impact on workers at a HELP Subcommittee 
hearing. He testified that Specialty Healthcare ``wrongfully 
elevated employees' right to unionize above employees' equal 
right to oppose unionization.''\94\
---------------------------------------------------------------------------
    \91\Id.
    \92\Id.
    \93\McKeague, supra note 75 at 7.
    \94\LaJeunesse, supra note 76 at 5.
---------------------------------------------------------------------------
            D. Necessary Legislation To Address NLRB Actions
    Congress is responsible for establishing and revising 
standards in federal labor law. The NLRB's decision in 
Specialty Healthcare and its ambush election rule will limit 
employee free choice and employer free speech, and fragment the 
workforce. The Workforce Democracy and Fairness Act reverses 
the NLRB's August 26, 2011, decision in Specialty Healthcare 
and the ambush election rule without upsetting other standards 
under current law.
    To ensure parties can dispute union-proposed bargaining 
units, the Workforce Democracy and Fairness Act will codify the 
test used prior to Specialty Healthcare. Bargaining units will 
again be comprised 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. 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.'' 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 also addresses the 
shortcomings of the NLRB's ambush election rule. More 
specifically, the Act addresses:
           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 the pre-election hearing. The 14 day time period 
        gives unions, employers, and the NLRB an opportunity to 
        compromise and reach an election agreement.
           Identifying Issues in Dispute. Employers and 
        unions will be allowed 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. 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 only be raised after the election.
           Timing of Election. Providing the time 
        necessary for employees to understand the costs and 
        benefits of unionization is essential to free choice. 
        In 1959, then-Senator John F. Kennedy stated during the 
        debate over amendments to the NLRA that at least 30 
        days were required between the petition's filing and 
        the election to ``safeguard against rushing employees 
        into an election where they are unfamiliar with the 
        issues.''\95\ For all petitions filed in the last full 
        year before the ambush election rule took effect, the 
        median time from the filing of a petition to an 
        election was 38 days.\96\ 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 wish to be represented 
        by a union.
---------------------------------------------------------------------------
    \95\105 Cong. Rec. 5361 (1959).
    \96\NLRB, MEDIAN DAYS FROM PETITION TO ELECTION (2017), https://
www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-
days-petition-election.
---------------------------------------------------------------------------
           Post-election Board Review. To ensure 
        uniformity and due process, parties may petition the 
        Board for post-election review of the regional 
        director's decision.
    In sum, the Workforce Democracy and Fairness Act will 
ensure employers have adequate time to communicate with their 
employees and employees have the time and information necessary 
to make fully informed decisions about unionization.

                               Conclusion

    Over the last several years, the NLRB has issued multiple 
decisions and rules intended to unbalance labor relations to 
benefit organized labor. The two most significant examples are 
the Board's holding in Specialty Healthcare and its ambush 
election rule. Together, these actions fragment workplaces, 
increase 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 restoring a fair 
election process for unions, employers, and employees.

                      Section-by-Section Analysis

    The following is a section-by-section analysis of the 
Amendment in the Nature of a Substitute to H.R. 2776 as offered 
by HELP Subcommittee Chairman Walberg 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 to 
        reverse the December 14, 2015, final representation-
        case procedures rule.
          Section 3. Amends the National Labor Relations Act to 
        reverse the holding in Specialty Healthcare.

                       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. 2776, the Workforce Democracy and Fairness Act, 
reverses the NLRB's August 26, 2011, decision in Specialty 
Healthcare and reverses the NLRB's December 15, 2014, final 
ambush election rule.

                       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. 2776 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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

         Statement of General Performance Goals and Objectives

    In accordance with clause (3)(c) of House Rule XIII, the 
goals of H.R. 2776 are to ensures cohesion in the workplace, 
employee free choice, and employer free speech.

                    Duplication of Federal Programs

    No provision of H.R. 2776 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. 2776 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. 2776 from the Director of the 
Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 21, 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. 2776, 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,
                                             Mark P. Hadley
                                        (For Keith Hall, Director).
    Enclosure.

H.R. 2776--Workforce Democracy and Fairness Act

    H.R. 2776 would amend the National Labor Relations Act to 
require the National Labor Relations Board to delay, for at 
least 14 days after a petition is filed, hearings on petitions 
by employees or employers for representation in collective 
bargaining. The bill also would set certain requirements for 
pre-election hearings. In addition, secret ballot elections 
could be held no earlier than 35 days after an election 
petition is filed. CBO estimates that enacting H.R. 2776 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. 2776 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 or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Christina Hawley 
Anthony. 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. 2776. 
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 (existing law 
proposed to be omitted is enclosed in black brackets, 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:] (1) 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 any bargaining unit determination 
promulgated through rulemaking 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--
          (A) similarity of wages, benefits, and working 
        conditions;
          (B) similarity of skills and training;
          (C) centrality of management and common supervision;
          (D) extent of interchange and frequency of contact 
        between employees;
          (E) integration of the work flow and 
        interrelationship of the production process;
          (F) the consistency of the unit with the employer's 
        organizational structure;
          (G) similarity of job functions and work; and
          (H) the bargaining history in the particular unit and 
        the industry.
To avoid the proliferation or fragmentation of bargaining 
units, no employee shall be excluded from the unit unless the 
interests of the group seeking a separate unit 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 determined 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.
          (2) [Provided, That the Board] The Board shall not 
        [(1)] (A) 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)] (B) 
        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)] (C) 
        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, 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 may reasonably be 
expected to impact the outcome of the election. Parties may 
independently raise 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 that such a question of representation 
exists, it shall direct an election by secret ballot [and shall 
certify the results thereof] to be conducted as soon as 
practicable but no earlier than 35 calendar days after the 
filing of an election petition. The Board shall certify the 
results of the election after it has ruled on each pre-election 
issue not resolved before the election and any additional issue 
pertaining to the conduct or results of the election.
  (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

    The deceptively-named ``Workforce Democracy and Fairness 
Act'' is designed to deny private-sector workers a right to a 
fair union representation election by mandating unnecessary 
pre-election delays, encouraging additional delays through 
wasteful and frivolous litigation, and empowering employers to 
gerrymander the bargaining unit selected by the workers in 
order to dilute the voting strength of workers who want to form 
a union.
    A worker's right to join a union and collectively bargain 
is among the most effective means to grow the middle class and 
reduce income inequality.\1\ The majority has advanced H.R. 
2776 at a time of soaring income inequality, attributable, in 
part, to the decline of private-sector union membership. This 
bill specifically targets the right to join a union by 
undermining the union representation election process. Instead 
of raising wages and empowering employees, H.R. 2776 tilts the 
playing field against workers who want to organize a union.
---------------------------------------------------------------------------
    \1\Ross Eisenbrey and Colin Gordon, As Unions Decline, Inequality 
Rises, Economic Policy Institute, June 6, 2012 http://www.epi.org/news/
union-membership-declines-inequality-rises/.
---------------------------------------------------------------------------
    The bill was approved with 22 Republicans to 16 Democrats, 
with all Democrats present opposing the bill on a roll call 
vote.

   H.R. 2776 OVERTURNS KEY PARTS OF THE NLRB'S 2015 ELECTION RULE BY 
                            MANDATING DELAYS

    The National Labor Relations Board's (NLRB) 2015 election 
rule updated union election procedures to increase transparency 
and reduce wasteful litigation that stalls the election 
process. Unnecessary procedural delays enable employers to have 
more time to campaign against the union, and research shows 
that employers often use that time to engage in coercive 
tactics against workers seeking to unionize.\2\ By streamlining 
the union election process, the 2015 election rule best 
effectuates the stated purpose of the National Labor Relations 
Act (NLRA): to ``encourag[e] the practice and procedure of 
collective bargaining'' and ``protect[] the exercise by workers 
of full freedom of association.''\3\
---------------------------------------------------------------------------
    \2\NO HOLDS BARRED: The Intensification of Employer Opposition to 
Organizing, Kate Bronfenbrenner, Director, Labor Education and 
Research, Cornell School of Industrial and Labor Relations, May 20, 
2009 http://www.epi.org/files/page/-/pdf/bp235.pdf.
    \3\29 U.S.C. Sec. 151.
---------------------------------------------------------------------------
    Under the 2015 election rule, when a union files a petition 
for a union election, the regional office must schedule a pre-
election hearing eight days from the date of the petition.\4\ 
This rule harmonizes the practices of various regional offices; 
prior to 2015, the regions scheduled hearings using various 
timelines. The 2015 election rule also narrowed the scope of 
permissible issues that could be litigated in a pre-election 
hearing to reduce pre-election delays and avoid wasteful 
litigation.\5\ Before 2015, the employer could insist on 
litigating any issue of voter eligibility. The pre-election 
hearing now focuses on issues that are necessary to determine 
whether it is appropriate to conduct the election at all. This 
way, litigation regarding individual voters' eligibility is 
postponed to after the election, when many disputes can be 
mooted if their outcome is not enough to change the results of 
the election. Once the pre-election disputes are resolved, the 
NLRB's 2015 rule requires the election to be held as soon as 
practicable, in order for the elections to be conducted 
efficiently.\6\
---------------------------------------------------------------------------
    \4\29 C.F.R. Sec. 102.63(a)(1).
    \5\29 C.F.R. Sec. 102.64(a).
    \6\29 C.F.R. Sec. 102.67(b).
---------------------------------------------------------------------------
    The NLRB's election procedures are now settled law: every 
court where the 2015 election rule has been challenged has 
upheld the rule.\7\ For example, as the Fifth Circuit Court of 
Appeals held with regards to the suit filed by the Associated 
Builders and Contractors (ABC) of Texas:
---------------------------------------------------------------------------
    \7\Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 
F.3d 215 (5th Cir. 2016); affirming 1-15-CV-026, U.S. Dist. LEXIS 78890 
(W.D. Tex. June 1, 2015); Chamber of Commerce of the United States of 
America v. NLRB, 118 F. Supp. 3d 171 (D.D.C. 2015).

          [The Board] conducted an exhaustive and lengthy 
        review of the issues, evidence, and testimony, 
        responded to contrary arguments, and offered factual 
        and legal support for its final conclusions. Because 
        the Board acted rationally and in furtherance of its 
        congressional mandate in adopting the rule, the ABC 
        entities' challenge to the rule as a whole fails.\8\
---------------------------------------------------------------------------
    \8\Associated Builders & Contractors of Texas, Inc., 826 F.3d at 
229 (5th Cir. 2016).

    Similarly, the U.S. District Court for the District of 
---------------------------------------------------------------------------
Columbia held:

          Congress authorized the Board ``to make, amend, and 
        rescind . . . such rules and regulations as may be 
        necessary to carry out the provisions of the NLRA.'' 
        Plaintiffs complain that ``the hundreds of pages in the 
        Board's Final Rule contain remarkably little logic or 
        sound explanation for the sweeping changes made by the 
        Final Rule,'' but in reality, the Board engaged in a 
        comprehensive analysis of a multitude of issues 
        relating to the need for and the propriety of the Final 
        Rule, and it directly addressed the commenters' many 
        concerns, including a number of the arguments 
        plaintiffs raised here.\9\
---------------------------------------------------------------------------
    \9\Chamber of Commerce, 118 F. Supp. 3d at 220 (quoting 29 U.S.C. 
Sec. 156 and plaintiff's motion for summary judgment, respectively).

    The failure of these court challenges to the rule has 
prompted this legislation to overturn the 2015 NLRB election 
rule.
    H.R. 2776 targets the 2015 election rule by replacing the 
8-day deadline for pre-election hearings with a 14-day delay 
before the hearing. It would also prohibit the NLRB from 
holding any union election sooner than 35 days after the filing 
of a petition for an election, even if there are no pre-
election matters in dispute. This undermines the parties' free 
choice: in over 90 percent of union elections, the parties 
themselves agreed to when the election would occur and who is 
eligible to vote.\10\ During the hearing, the Majority did not 
articulate any reason to interfere in these agreements by 
forcing unnecessary delay.
---------------------------------------------------------------------------
    \10\Percentage of Elections Conducted Pursuant to Election 
Agreements in FY16, NLRB https://www.nlrb.gov/news-outreach/graphs-
data/petitions-and-elections/percentage-elections-conducted-pursuant-
election (last accessed Jul. 7, 2017).
---------------------------------------------------------------------------
    Committee Republicans at the June 29, 2017 markup echoed 
anti-union business groups in describing the NLRB's 2015 
election rule as an ``ambush election rule .  .  . designed to 
rush employees into union elections.''\11\ Indeed, when the 
D.C. District Court considered the Chamber of Commerce's 
challenge to the rule, it noted that the Chamber ``rel[ied] 
heavily on the repetition of disparaging labels, referring to 
the Final rule as the `ambush' or `quickie' election 
rule.''\12\ The court found that ``[t]his tendency to speak in 
broad terms'' ignored how, ``when one descends to the level of 
the particular, the provisions at issue are not quite as 
described. On its face, the Final Rule does not necessarily 
lead to the outcomes to which plaintiffs object .  .  . .''\13\ 
By replacing the NLRB's common sense 2015 election rule with 
mandatory delays, H.R. 2776 serves no useful purpose other than 
to buy employers more time to chill employee support for a 
union.
---------------------------------------------------------------------------
    \11\Address of Chairwoman Virginia Foxx at U.S. House of 
Representatives Committee on Education and the Workforce Markup (June 
29, 2017) https://edworkforce.house.gov/calendar/
eventsingle.aspx?EventID=401796.
    \12\Chamber of Commerce, 118 F. Supp. 3d at 189.
    \13\Chamber of Commerce, 118 F. Supp. 3d at 189.
---------------------------------------------------------------------------

 H.R. 2776 OVERTURNS PARTS OF THE NLRB ELECTION RULE THAT STREAMLINES 
 THE HEARING PROCESS AND CREATES OPPORTUNITIES FOR WASTEFUL LITIGATION 
                          AND AMBUSH HEARINGS

    H.R. 2776 expands the issues that parties can litigate 
prior to the election. Where the 2015 election rule reduced 
wasteful litigation by delaying issues that could be mooted by 
the election's outcome, H.R. 2776 now allows parties to raise 
any pre-election issue that ``may reasonably be expected to 
impact the outcome of the election.'' This provision allows 
employers to raise issues that have no bearing on whether there 
is an appropriate bargaining unit. Thus, it grants employers 
the ability to extend hearings for weeks on end to buy time to 
chill the workers' organizing drive or pressure them from 
organizing. This is not a one-sided concern: 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 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 an 
appropriate bargaining unit. This will further stall review 
efforts, which in turn will prevent elections from being held.
    H.R. 2776 also 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's 2015 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.\14\ H.R. 2776 
overturns that rule.
---------------------------------------------------------------------------
    \14\29 C.F.R. Sec. 102.63(b).
---------------------------------------------------------------------------

H.R. 2776 UNDERMINES EMPLOYEES' RIGHT TO FULL FREEDOM OF ASSOCIATION BY 
 EMPOWERING EMPLOYERS TO GERRYMANDER THE COMPOSITION OF THE BARGAINING 
                                  UNIT

    H.R. 2776 establishes an entirely new regime that would 
give employers, instead of employees, the dominant voice in 
determining who should be included and who should be excluded 
in a bargaining unit. The bill allows employers to dilute the 
percentage of employees interested in forming a union by 
expanding the pool of eligible voters with employees who have 
expressed no interest in joining a union. Employer 
gerrymandering rigs the NLRB's election process and makes it 
much harder for employees to win a union.
      After a union files its petition for an election, 
including signatures demonstrating a showing of interest of at 
least 30 percent of the employees, the NLRB applies its 
traditional two-step process to resolve disputes regarding 
whether the bargaining unit that the union petitioned for is 
appropriate.\15\
---------------------------------------------------------------------------
    \15\Specialty Healthcare, 357 NLRB 934 (2011), enforced sub nom 
Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 
2013).
---------------------------------------------------------------------------
           First, the NLRB determines whether the unit 
        is a readily identifiable group sharing a ``community 
        of interest'' using factors such as similarity of 
        wages, hours, terms and conditions of employment, and 
        supervision.\16\
---------------------------------------------------------------------------
    \16\Other factors can include ``whether the employees 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; [and] interchange with other 
employees.'' Specialty Healthcare, 357 NLRB at 942 (quoting United 
Operations, Inc., 338 NLRB 123, 123 (2002)).
---------------------------------------------------------------------------
           Second, assuming the unit shares a 
        ``community of interest,'' if the employer contends 
        additional employees should be added to the unit, then 
        the NLRB looks at whether the employees in the unit 
        share an ``overwhelming community of interest'' such 
        that there ``is no legitimate basis upon which to 
        exclude certain employees from it.''\17\
---------------------------------------------------------------------------
    \17\Specialty Healthcare, 357 NLRB at 944.
---------------------------------------------------------------------------
    Various units are potentially appropriate for collective 
bargaining. The union need only petition for an appropriate 
unit, not the single most appropriate unit, or even the largest 
one.\18\
---------------------------------------------------------------------------
    \18\Id. at 940.
---------------------------------------------------------------------------
    The bill undermines this traditional analysis by lowering 
the standard the employer needs to meet in order for employees 
to be added to the unit. H.R. 2776 allows an employer to 
override the union's petitioned-for unit and require that 
employees be added if they can be shown to also share a 
community of interest, but without regard to whether this is 
how the workers chose to freely associate. This change could 
head off an election by diluting the percentage of employees 
interested in forming a union to below the 30 percent threshold 
required for a showing of interest. Even if an election occurs, 
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 on employees to 
justify why the employer cannot simply dilute a proposed 
bargaining unit with workers who had no interest in organizing.
    The practical impact of this bill is that employers will 
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 union's chances of 
victory.
    This provision has been advanced by employer interests 
under the guise of overturning the NLRB's 2011   Specialty 
Healthcare decision, which clarified the NLRB's traditional 
two-step analysis. Committee Republicans inaccurately contend 
that this decision created a new standard for determining an 
appropriate bargaining unit that creates ``micro-units'' and 
allows unions to gerrymander bargaining units. Alarmist 
warnings of a proliferation of ``micro-units'' have not 
materialized, as the median bargaining unit size approved by 
the NLRB has remained unchanged since the 2011 decision.

------------------------------------------------------------------------
                                                 Median Bargaining Unit
                  Fiscal Year                     Size Approved by NLRB
                                                     (Source: NLRB)
------------------------------------------------------------------------
FY 2007.......................................                       24
FY 2008.......................................                       26
FY 2009.......................................                       24
FY 2010.......................................                       27
FY 2011.......................................                       26
FY 2012.......................................                       28
FY 2013.......................................                       24
FY 2014.......................................                       26
FY 2015.......................................                       25
FY 2016.......................................                       26
------------------------------------------------------------------------

    As the chart illustrates, the median bargaining unit size 
was 26 three years before the Specialty Healthcare was decided, 
it was 26 when the decision was issued in 2011, and it was 
unchanged at 26 in 2016, five years later.\19\
---------------------------------------------------------------------------
    \19\Median Size of Bargaining Units in Elections, NLRB https://
nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-size-
bargaining-units-elections (last accessed Jul. 8, 2017).
---------------------------------------------------------------------------
    The NLRB's traditional two-step analysis is not new: 
Specialty Healthcare, which was affirmed by the Sixth Circuit 
Court of Appeals, only clarified the NLRB's existing standard. 
The D.C. Circuit previously articulated the same test and noted 
the Board's decades-long precedent using that test.\20\ Eight 
separate Courts of Appeals have subsequently considered 
Specialty Healthcare and held that the NLRB merely ``laid out 
the traditional standard,''\21\ and, on June 19, 2017, the U.S. 
Supreme Court declined to hear a case challenging the two-prong 
test outlined above involving a Macy's department store.\22\
---------------------------------------------------------------------------
    \20\Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008).
    \21\Macy's, Inc. v. NLRB, 824 F.3d 557, 567 (5th Cir. 2016) 
(internal citation omitted); see also Rhino Northwest, LLC v. NLRB, 
Case Nos. 16-1089, 16-1115, 2017 U.S. App. LEXIS 14884 (D.C. Cir. Aug. 
11, 2017) (``Throughout, the Board's approach has remained 
fundamentally the same . . . We thus join seven of our sister circuits 
in concluding that Specialty Healthcare worked no departure from prior 
Board decisions.'') (internal citations omitted); Constellation Brands, 
Inc. v. NLRB, 842 F.3d 784, 792 (2d Cir. 2016) (the standard is 
``consistent with earlier Board precedents''); FedEx Freight, Inc. v. 
NLRB, 839 F.3 636, 639 (7th Cir. 2016) (the standard is ``not the 
invention of the Specialty Healthcare case''); NLRB v. FedEx Freight, 
Inc., 832 F.3d 432, 442 (3d Cir. 2016) (``The Board's citation to and 
approval of the D.C. Circuit's understanding of Board precedent was not 
the adoption of new law''); Nestle Dreyer's Ice Cream Co. v. NLRB, 821 
F.3d 489, 500 (4th Cir. 2016) (``[T]he Board clarified--rather than 
overhauled--its unit-determination analysis.''); FedEx Freight, Inc. v. 
NLRB, 816 F.3d 515, 523 (8th Cir. 2016) (``The precedents relied on by 
the Board in Specialty Healthcare make clear that the Board does not 
look at the proposed unit in isolation.''), reh'g and reh'g en banc 
denied (May 26, 2016); Kindred Nursing Centers East, LLC, 727 F.3d 552, 
561 (6th Cir. 2013) (``The Board has used the overwhelming-community-
of-interest standard before, so its adoption in Specialty Healthcare is 
not new.'').
    \22\ See Macy's Inc. v. NLRB, No. 16-1016, U.S. Sup (June 19, 
2017).
---------------------------------------------------------------------------
    The Majority's allegations that the Specialty Healthcare 
decision enables ``union gerrymandering'' of a bargaining unit 
are also unfounded. Section 9(c)(5) of the NLRA specifically 
states that ``the extent to which the employees have organized 
shall not be controlling'' when determining ``whether a unit is 
appropriate.'' Union gerrymandering is therefore prohibited, 
and Specialty Healthcare complements Section 9(c)(5) by 
precluding employer gerrymandering. H.R. 2776 disrupts settled 
law by allowing employers to rig union elections in their own 
favor.
    H.R. 2776 thus undermines the very right to organize a 
union by replacing the ``overwhelming community of interest'' 
standard and requiring that any additional employees with a 
mere community of interest be added to the voting pool upon the 
request of the employer. By attacking the NLRB's traditional 
standard and creating a controversy where none exists, 
Committee Republicans hope to use this as an opening to rewrite 
the National Labor Relations Act to de-unionize the economy.

           Committee Democrats Offer Amendments to H.R. 2776

    Democrats offered the following amendments to H.R. 2776 at 
the June 29, 2017 markup:
Amendment 1--To eliminate the 35-day waiting period for an election
    In order to prevent needless delays in conducting 
elections, Representative Frederica S. Wilson proposed an 
amendment to strike the text that requires an election to be 
delayed for at least 35 days from the date the petition was 
filed when a party contests a pre-election issue. This 
amendment would restore the current NLRB election rule so an 
election would be conducted as soon as practicable following 
the pre-election hearing (consistent with the requirement that 
a notice of election is posted for three days prior to the 
election). While H.R. 2776 prescribes minimum delays, there is 
no provision in the bill to limit the time that an election can 
be delayed.
    This amendment was rejected 16-22.
Amendment 2--To replace the 14-day waiting period for a pre-election 
        hearing with an 8-day deadline
    In order to prevent needless delays in conducting 
elections, Representative Adriano Espaillat proposed an 
amendment to require a pre-election hearing to be held 8 days 
after the date the petition was filed, replacing text requiring 
that a pre-election hearing be delayed for at least 14 days 
from the date of the petition. This amendment would codify the 
current NLRB election rule that went into effect in April 2015. 
H.R. 2776 allows open-ended delays in holding pre-election 
hearings, while also prescribing a longer minimum time period 
before pre-election hearings can be held.
    This amendment was rejected 16-22.
Amendment 3--To prevent employers from withdrawing recognition of a 
        union without an election
    In order to promote workforce democracy and fairness, as 
the bill purports, Representative Joe Courtney proposed an 
amendment to prohibit employers from withdrawing recognition of 
the union that was originally certified through an election 
without first conducting a decertification election. Under 
current law, if an employer can present objective evidence that 
a union has lost majority support during a period when the 
union's decertification is not barred, then the employer can 
unilaterally withdraw recognition of the union without an 
election. However, if a union campaigning for representation 
presents objective evidence that it has majority support, the 
employer can require an election before being required to 
recognize the union. This amendment rectifies that double-
standard, by requiring an election before an employer can 
unilaterally withdraw recognition.
    This amendment was ruled non-germane. The appeal of the 
ruling was tabled on a vote of 22-16.
Amendment 4--To strike language allowing open-ended litigation in pre-
        election hearings
    In order to ensure that pre-election hearings are focused 
on resolving genuine disputes, Ranking Member Bobby Scott 
proposed an amendment striking the text that authorizes parties 
to raise ``any other issue which . . . may reasonably be 
expected to impact the outcome of the election.'' Pre-election 
hearings are for setting election ground rules such as defining 
the appropriate bargaining unit, or resolving issues that 
eliminate the need for an election. They are not for concocting 
litigation over ``any other issue'' that could impact the 
election's outcome, which could range from disputes over the 
accuracy of campaign literature to alleged unfair labor 
practices by either party.
    The amendment was rejected 16-22.
Amendment 5--To sanction frivolous and vexatious filings
    In order to deter frivolous filings, Representative Suzanne 
Bonamici proposed an amendment to provide the NLRB with the 
authority to impose sanctions on any party for presenting a 
frivolous or vexatious filing during any stage of a 
representation proceeding. Potential sanctions included 
reimbursement of the opposing party's 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 amendment was rejected 16-22.
Amendment 6--To prevent employers from gerrymandering the bargaining 
        unit
    Representative Mark DeSaulnier proposed an amendment to 
strike text that would allow employers to gerrymander 
bargaining units as a way to impact the outcome of union 
elections. The amendment reinstated the traditional requirement 
that an employer can only succeed in adding employees to the 
proposed bargaining unit if the additional employees shared an 
``overwhelming community of interest'' with the other 
employees. This bill hinders employees' right to join a union 
by empowering employers to cram the pool of eligible voters 
with employees who have expressed no interest in joining a 
union. In addressing this problem, the amendment restores the 
current law as expressed in the NLRB's Specialty Healthcare 
decision.
    This amendment was rejected 16-22.
Amendment 7--To prohibit captive audience meetings after an election is 
        ordered
    To prevent coercion and intimidation by employers during 
the election process, Representatives Donald Norcross and Jared 
Polis 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 a union.
    Captive audience meetings are compulsory listening sessions 
that are conducted by employers on an employee's paid time and 
are used to propagandize against the union seeking recognition. 
Current law only prohibits captive audience meetings in the 24 
hours prior to an election. Under current law, employees who 
refuse to participate or object to any portion of the 
presentation 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. 
This amendment helps to level the playing field, and it will 
help ensure that employees can exercise their choice untainted 
by attendance at forced meetings. The amendment does not 
restrict the employer's ability to hold voluntary and unpaid 
meetings with employees, which are the same terms on which 
unions campaign.
    This amendment was rejected 16-22.
Amendment 8--To substitute the text of the bill with the Raise the Wage 
        Act
    Representative Mark Takano offered an amendment to replace 
the bill with the Raise the Wage Act (H.R. 15). This amendment 
raises the federal minimum wage to $15 an hour by 2024. H.R. 
2776 does nothing to grow the economy or expand the middle 
class. By impeding the ability of workers to organize, it 
depresses wages and creates a more insecure labor market. 
During this time of skyrocketing inequality, this Committee 
should be focused on empowering workers and raising wages.
    The amendment was ruled non-germane, and the appeal of the 
ruling was tabled.
                                   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]