[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
LEGISLATIVE REFORMS TO THE NATIONAL
LABOR RELATIONS ACT:
H.R. 2776, WORKFORCE DEMOCRACY AND FAIRNESS ACT;
H.R. 2775, EMPLOYEE PRIVACY PROTECTION ACT;
AND, H.R. 2723, EMPLOYEE RIGHTS ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR, AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
HEARING HELD IN WASHINGTON, DC, JUNE 14, 2017
__________
Serial No. 115-18
__________
Printed for the use of the Committee on Education and the Workforce
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: www.govinfo.gov
or
Committee address: http://edworkforce.house.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
25-712 PDF WASHINGTON : 2019
COMMITTEE ON EDUCATION AND THE WORKFORCE
VIRGINIA FOXX, North Carolina, Chairwoman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Duncan Hunter, California Virginia
David P. Roe, Tennessee Ranking Member
Glenn ``GT'' Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Brett Guthrie, Kentucky Joe Courtney, Connecticut
Todd Rokita, Indiana Marcia L. Fudge, Ohio
Lou Barletta, Pennsylvania Jared Polis, Colorado
Luke Messer, Indiana Gregorio Kilili Camacho Sablan,
Bradley Byrne, Alabama Northern Mariana Islands
David Brat, Virginia Frederica S. Wilson, Florida
Glenn Grothman, Wisconsin Suzanne Bonamici, Oregon
Elise Stefanik, New York Mark Takano, California
Rick W. Allen, Georgia Alma S. Adams, North Carolina
Jason Lewis, Minnesota Mark DeSaulnier, California
Francis Rooney, Florida Donald Norcross, New Jersey
Paul Mitchell, Michigan Lisa Blunt Rochester, Delaware
Tom Garrett, Jr., Virginia Raja Krishnamoorthi, Illinois
Lloyd K. Smucker, Pennsylvania Carol Shea-Porter, New Hampshire
A. Drew Ferguson, IV, Georgia Adriano Espaillat, New York
Ron Estes, Kansas
Brandon Renz, Staff Director
Denise Forte, Minority Staff Director
------
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS
TIM WALBERG, Michigan, Chairman
Joe Wilson, South Carolina Gregorio Kilili Camacho Sablan,
David P. Roe, Tennessee Northern Mariana Islands
Todd Rokita, Indiana Ranking Member
Lou Barletta, Pennsylvania Frederica S. Wilson, Florida
Rick W. Allen, Georgia Donald Norcross, New Jersey
Jason Lewis, Minnesota Lisa Blunt Rochester, Delaware
Francis Rooney, Florida Carol Shea-Porter, New Hampshire
Paul Mitchell, Michigan Adriano Espaillat, New York
Lloyd K. Smucker, Pennsylvania Joe Courtney, Connecticut
A. Drew Ferguson, IV, Georgia Marcia L. Fudge, Ohio
Ron Estes, Kansas Suzanne Bonamici, Oregon
C O N T E N T S
----------
Page
Hearing held on June 14, 2017.................................... 1
Statement of Members:
Sablan, Hon. Gregorio Kilili Camacho, Ranking Member,
Subcommittee on Health, Employment, Labor, and Pensions.... 6
Prepared statement of.................................... 9
Walberg, Hon. Tim, Chairman, Subcommittee on Health,
Employment, Labor, and Pensions............................ 1
Prepared statement of.................................... 5
Statement of Witnesses:
Borden, Mr. Seth H., Partner, McGuirewoods LLP, New York, New
York....................................................... 42
Prepared statement of.................................... 44
Calemine, Mr. Guerino J., III, General Counsel,
Communications Workers of America, Washington, DC.......... 26
Prepared statement of.................................... 28
Cox, Ms. Karen, Dixon, Illinois.............................. 21
Prepared statement of.................................... 23
McKeague, Ms. Nancy, Senior Vice President and Chief of
Staff, Michigan Health and Hospital Association, Okemos,
Michigan................................................... 11
Prepared statement of.................................... 14
Additional Submissions:
Mr. Sablan:
Article: Time Is On Your Side............................ 8
RWDSU, UFCW membership form.............................. 75
Letter dated June 14, 2017, from United Food and
Commercial Workers International Union (UFCW).......... 77
Graph: Percentage of wage and salary workers who were
members of unions, total and private sector, 1983-2016. 80
Press Release: New Illinois Members at Americold Win
First Contract......................................... 82
Letter dated June 13, 2017, from SEIU.................... 86
Chairman Walberg:
Letter dated June 13, 2017, from the National Retail
Federation (NFR)....................................... 89
Letter dated June 14, 2017, from the Retail Industry
Leaders Association (RILA)............................. 90
Letter dated June 13, 2017, from the Associated Builders
and Contractors, Inc. (ABC)............................ 92
Americans for Tax Reform and The Center for Worker
Freedom Support The Employee Rights Act (ERA).......... 93
Prepared statement of Professional Janitorial Service
(PJS).................................................. 94
Heritage Action Supports Rep. Phil Roes's Employee Rights
Act.................................................... 97
Letter dated June 14, 2017, from the Workforce Fairness
Institute.............................................. 99
Letter dated June 14, 2017, from the Workforce Fairness
Institute.............................................. 101
Prepared statement of the Independent Electrical
Contractors............................................ 103
LEGISLATIVE REFORMS TO THE NATIONAL
LABOR RELATIONS ACT:
H.R. 2776, WORKFORCE DEMOCRACY AND
FAIRNESS ACT;
H.R. 2775, EMPLOYEE PRIVACY
PROTECTION ACT; AND,
H.R. 2723, EMPLOYEE RIGHTS ACT
----------
Wednesday, June 14, 2017
House of Representatives,
Subcommittee on Health,
Employment, Labor, and Pensions,
Committee on Education and the Workforce,
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 1:01 p.m., in
Room 2175, Rayburn House Office Building, Hon. Tim Walberg
[chairman of the subcommittee] presiding.
Present: Representatives Walberg, Wilson of South Carolina,
Roe, Allen, Lewis, Mitchell, Smucker, Ferguson, Estes, Sablan,
Norcross, Espaillat, and Courtney.
Also Present: Representatives Foxx and Scott.
Staff Present: Bethany Aronhalt, Press Secretary; Andrew
Banducci, Workforce Policy Counsel; Courtney Butcher, Director
of Member Services and Coalitions; Ed Gilroy, Director of
Workforce Policy; Jessica Goodman, Legislative Assistant;
Callie Harman, Legislative Assistant; Nancy Locke, Chief Clerk;
Geoffrey MacLeay, Professional Staff Member; John Martin,
Professional Staff Member; James Mullen, Director of
Information Technology; Alexis Murray, Professional Staff
Member; Krisann Pearce, General Counsel; Lauren Reddington,
Deputy Press Secretary; Brandon Renz, Staff Director; Joseph
Wheeler, Professional Staff Member; Tylease Alli, Minority
Clerk/Intern, Fellow Coordinator; Kyle deCant, Minority Labor
Policy Counsel; Christine Godinez, Minority Staff Assistant;
Stephanie Lalle, Minority Press Assistant; Kevin McDermott,
Minority Senior Labor Policy Advisor; Richard Miller, Minority
Senior Labor Policy Advisor; Udochi Onwubiko, Minority Labor
Policy Counsel; and Veronique Pluviose, Minority General
Counsel.
Chairman Walberg. A quorum being present, the Subcommittee
on Health, Employment, Labor, and Pensions will come to order.
Before we move into the subject of today's hearing, I want
to start by saying, I wish this morning would have started
differently. Many of us are still processing the tragic events
that have occurred this morning, and I know that our thoughts
and prayers are focused on friends in the hospital at this
moment, including a former staffer of mine, graduate of Adrian
College, Adrian, Michigan, my home county, and a young man who
became like a third son to Sue, my wife, and myself, who is in
surgery at this time and in very grave condition.
It's very hard to imagine that such a tragedy could have
occurred while our colleagues were doing something as simple as
practicing for a charity baseball game before they came to
work. The horrific events of this morning have made us all
pause and give thanks for the brave men and women of the
Capitol Police who serve and protect us all, whether Members of
Congress, whether staff members or visitors to this great
institution of democracy.
As well as giving thanks for a strong Capitol Hill
community, with friends and family who have rallied together in
support of those who have been impacted by the events of this
morning. Members of this Capitol Hill community are here
because they are answering a call, a call to serve the American
people, and the best way we can help those impacted by the
events of this morning is by continuing to serve our fellow
citizens.
Additionally, I want to thank our witnesses, the audience
members, and fellow members of the committee for their
cooperation with the rescheduling of our hearing, which
undoubtedly has caused some disruption of plans.
I will come back to my opening comments following some
other comments that will be made by my colleagues here. But I
would also like to do something, and I just request, with all
due respect, of my colleagues that you would allow me, as a
Christian -- and I certainly respect all faiths, but as a
Christian, I believe in power of prayer. And it's not normal
that we open our committee hearings in prayer, but I would like
to do that this afternoon.
Father, we don't come to You just in a moment of silence.
We come to You as a loving God who hurts when Your created
beings go through challenging, difficult, painful
circumstances, and ultimately circumstances that indicate there
is still evil.
So, today, even before we carry on with the business that
we have been sent here to do, we call upon You to address these
very unique concerns, thinking of the Capitol Police personnel,
Matt Mika, and Steve Scalise, who are all in various processes
of having their wounds, their injuries, the life-threatening
things cared for.
We ask that You would protect them, that You would sustain
them, and that You would heal them, that You'd be with their
families, families who are hurting and worried and concerned,
families who have this impact upon their lives for days, weeks,
maybe years to come. We ask that You would sustain them and,
for the community here in this Capitol, that You would
undertake for needs as well.
Lord, we pray as well that You would restore our country,
that You would heal our divides, that You would bring us
together, and that You'd create a Nation indivisible with
liberty, justice for all. I thank You that You can hear and
answer those prayers. And it's in the name of Jesus I pray.
Amen.
I would now yield to my friend and colleague, the ranking
member, Mr. Sablan, for your comments.
Mr. Sablan. Thank you very much, Chairman Walberg.
I know that words are insufficient at this time, and I can
only imagine how you feel when you found out that Matt, one of
your former staff, was wounded this morning. I was horrified
also when Seth came to pick me up, give me a ride to a meeting
we had that one of our own colleagues, staff and former -- and
Capitol Hill Police officers were in an accident -- were
shooting victims in a practice for tomorrow's game. My heart
goes out to the families. My prayers go out to Steve,
Congressman Scalise, the staff, the Capitol Police, their
families, and all of those affected by this morning's horrible
event.
And just as Speaker Ryan said earlier today, when one is
attacked, we are all attacked. I pray that there's no more such
incidents in the future.
But for you, Mr. Chairman, I know this is also personal,
and I'll keep you in my prayers as well.
I yield back.
Chairman Walberg. I thank the gentleman.
Now, I'd like to recognize the ranking member of the full
committee, Mr. Scott, for any comments on this morning that you
will like to share.
Mr. Scott. Thank you, Mr. Chairman, and thank you for the
opportunity to speak briefly about this morning's shooting in
Alexandria.
Like you, I was shocked and saddened to learn of what
happened this morning to our colleagues gathered to practice
for the annual Congressional Baseball Game. Our thoughts and
prayers are with Majority Whip Scalise, Zach Barth, Congressman
Roger Williams' staff, and your former staffer, Matt Mika, now
with Tyson Foods, also, the two Capitol Police officers who
heroically intervened and were shot while responding to this
incident, and, of course, to all of their families. I remain
hopeful that each of the victims will recover.
Mr. Chairman, violence has no role in our political
discourse. While we have disagreements over policies and
sometimes get in heated debates, each of us and our staffs are
motivated by a shared common principle: It is love for our
country and the desire to make the lives of the people we
represent better. I've seen that every day that I've had the
honor and privilege to serve in this Chamber, and I wish the
American people could actually see firsthand the close,
bipartisan friendships that are developed here.
It's my understanding that the Congressional Baseball Game
will go on as planned tomorrow evening. That's great news. This
annual event has always been an opportunity for Democrats and
Republicans to come together for a friendly game of baseball
while raising money for local charities.
This moment of levity in Washington is always needed, but
certainly now more than ever.
So I thank you, Mr. Chairman. I yield back.
Chairman Walberg. I thank the gentleman.
And you're absolutely right, and that's why this hearing is
going on as well. We will not have evil stop us from doing our
business we've been called to do.
And, Bobby, I hope you noticed: I didn't pray for victory
for the Republican side tomorrow. We won last year, but it has
been a long time coming. So we'll see what happens tomorrow
evening. But I think we'll all win by playing the game,
absolutely.
Well, this brings us to our hearing this morning, as we
work to address pressing issues that impact hard-working
Americans. And I recognize myself for an opening statement.
Our first subcommittee hearing of the 115th Congress was
focused on the need to restore balance and fairness to federal
labor policies. This has long been a priority for House
Republicans, and today, we are taking the next step in our
efforts.
The National Labor Relations Act was signed into law more
than 80 years ago to protect the rights of workers in union
elections. Congress understood workers deserve the opportunity
to make informed decisions on union-related matters and that
employers deserve a level playing field with labor leaders.
The NLRA established important protections. It also created
a neutral arbiter, the National Labor Relations Board, to serve
as a fair and objective referee over labor disputes. But that
certainly has not been the NLRB we've come to know, I believe,
in recent years. Instead, over the last eight years, the Board
launched an activist agenda aimed at tilting the balance of
power toward powerful special interests. Unfortunately, it came
at the expense of the hard-working men and women who keep our
economy moving.
Decision after decision by the NLRB restricted the rights
of workers and employers. Make no mistake: both Republicans and
Democrats respect the right of workers to join a union. I was a
union worker. But workers also deserve the right to make a free
and informed decision in that matter. That means workers should
have the chance to hear from both sides of the debate, and I
hope we can all agree workers deserve to make a decision in an
environment free of threats, coercion, or intimidation.
However, the NLRB's actions over the years sent a different
message. For example, in 2015, the Board implemented a rule
designed to rush employees into union elections. The Board
dictated that workers should only be afforded as few as 11 days
to make a decision on whether or not to join a union. That's
roughly a week and a half to consider all the facts and
consequences before casting a vote on a personal issue that
directly impacts on employees' job and paycheck and future.
Meanwhile, employers were given just seven days to find
legal counsel and prepare their entire case before the NLRB
hearing officer. That's nearly impossible for most employers,
let alone a small-business owner.
With such a short timeframe, employers hardly have a chance
to communicate with their employees. But limiting debate and
stifling employer free speech for the sake of speeding up union
elections was precisely what the Board had in mind, I believe.
It's no surprise that union elections have been organized 38
percent faster since this new rule took effect.
To make matters worse, the rule jeopardized the privacy of
workers and their families. The NLRB forced employers to hand
over the private information of their employees to union
organizers, including home addresses, phone numbers, email
addresses, work locations, and work schedules.
At the same time, workers and employers have been hit with
a micro-union scheme that empowered union leaders to
gerrymander the workplace. This new standard has created
division in workplaces across the country, buried small
business in red tape, and undermined job creation.
It's long past time to put an end to these misguided
policies. That's why I was proud to introduce the Workforce
Democracy and Fairness Act to restore the rights of workers and
employers in union elections.
My colleague, Representative Joe Wilson, has also
introduced the Employee Privacy Protection Act. This important
legislation will safeguard the privacy of America's workers and
give them greater control over their personal information.
In addition, Dr. Phil Roe introduced the Employee Rights
Act to ensure workers aren't stuck in unions they no longer
support. The bill would modernize the union election process,
require periodic union recertification elections, and give
workers more control over how their union dues are spent.
These are all commonsense proposals that will protect the
rights of workers and restore balance and fairness to the rules
governing union elections. I hope we can have a thoughtful
discussion as we review these positive reforms.
And I will now yield to Ranking Member Sablan for his
opening remarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on
Health, Employment, Labor and Pensions
Our first subcommittee hearing of the 115th Congress was focused on
the need to restore balance and fairness to federal labor policies.
This has long been a priority for House Republicans, and today, we are
taking the next step in our efforts.
The National Labor Relations Act was signed into law more than 80
years ago to protect the rights of workers in union elections. Congress
understood workers deserve the opportunity to make fully informed
decisions on union-related matters, and that employers deserve a level
playing field with labor leaders.
The NLRA established important protections. It also created a
neutral arbiter--the National Labor Relations Board--to serve as a fair
and objective referee over labor disputes.
But that's certainly not the NLRB we've come to know in recent
years. Instead, over the last eight years, the board launched an
activist agenda aimed at tilting the balance of power toward powerful
special interests.
Unfortunately, it came at the expense of the hardworking men and
women who keep our economy moving. Decision after decision by the NLRB
restricted the rights of workers and employers.
Make no mistake; both Republicans and Democrats respect the right
of workers to join a union. But workers also deserve the right to make
a free and informed decision in the matter.
That means workers should have the chance to hear from both sides
of the debate. And I hope we can all agree workers deserve to make a
decision in an environment free of threats, coercion, or intimidation.
However, the NLRB's actions over the years sent a different
message. For example, in 2015, the board implemented a rule designed to
rush employees into union elections.
The board dictated that workers should only be afforded as few as
11 days to make a decision on whether or not to join a union. That's
roughly a week and a half to consider all the facts and consequences
before casting a vote on a personal issue that directly impacts an
employee's job and paycheck.
Meanwhile, employers were given just seven days to find legal
counsel and prepare their entire case before an NLRB hearing officer.
That's nearly impossible for most employers, let alone a small business
owner.
With such a short time frame, employers hardly have a chance to
communicate with their employees. But limiting debate and stifling
employer free speech for the sake of speeding up union elections was
precisely what the board had in mind. It's no surprise that union
elections have been organized 38 percent faster since this new rule
took effect.
To make matters worse, the rule jeopardized the privacy of workers
and their families. The NLRB forced employers to hand over the private
information of their employees to union organizers, including home
addresses, phone numbers, email addresses, work locations, and work
schedules.
At the same time, workers and employers have been hit with a micro-
union scheme that empowered union leaders to gerrymander the workplace.
This new standard has created division in workplaces across the
country, buried small businesses in red tape, and undermined job
creation.
It's long past time to put an end to these misguided policies.
That's why I was proud to introduce the Workforce Democracy and
Fairness Act to restore the rights of workers and employers in union
elections.
My colleague Representative Joe Wilson has also introduced the
Employee Privacy Protection Act. This important legislation will
safeguard the privacy of America's workers and give them greater
control over their personal information.
In addition, Dr. Phil Roe introduced the Employee Rights Act to
ensure workers aren't stuck in unions they no longer support. The bill
would modernize the union election process, require periodic union-
recertification elections, and give workers more control over how their
union dues are spent.
These are all commonsense proposals that will protect the rights of
workers and restore balance and fairness to the rules governing union
elections.
______
Mr. Sablan. Thank you, Chairman Walberg, for holding this
hearing today. I thank and welcome all the witnesses also for
being here with us today.
At my first hearing as ranking member of this subcommittee,
I stated that the purpose of the National Labor Relations Act
was to strengthen unions as an institution in our economy to
ensure that wealth is more fairly shared.
When working Americans are empowered to collectively
bargain with their employers over wages and conditions of
employment, productivity gains can be linked to wage growth.
However, the three bills under consideration today sabotage
workers' ability to organize and collectively bargain for a
better life.
Make no mistake about it, taken together, these bills are
not just union-busting bills; they're union elimination bills.
Workers should have a right to a fair union election. In any
normal election, you have to win a majority of those voting to
win.
H.R. 2723 would require the union to win a majority of all
eligible voters. This means that every person who does not vote
is counted as a ``no'' vote against a union. And my colleagues
all know that this is now how our elections work and that many
of us would not be here if we have to get 50 percent plus one
of all eligible voters in our elections.
H.R. 2723 would mandate an election every three years, if
50 percent of the workforce changed, on whether employees
should even have the right to have a representative and
collectively bargain. Workers already have democratic rights
under union constitutions. They can vote under collective
bargaining agreements, and under existing law, they can vote to
decertify the unions if they do not want one.
This bill would force each local union to misdirect its
resources to battle for its very existence on a continuing
basis instead of building a stable collective bargaining
relationship. So it is fundamentally at odds with the NLRA-
stated purpose to promote collective bargaining.
Employees have a right to be fully informed in a union
election, yet both H.R. 2775 and H.R. 2776 would overturn the
NLRB's election rule that promotes transparency by assuring
that the union and the employer have the same employee contact
information.
H.R. 2776 would provide three major impediments to union
elections. It would impose a minimum 35-day waiting period just
to hold an election, even in instances where the employer and
employees agree to a speedier election; it would delay pre-
election hearings for at least 14 days; and it reverses a rule
that requires litigation on some issues to occur only after the
election. The bill would enable frivolous litigation, which is
often used for the purpose of delay. In fact, employer law
firms openly encourage companies to engage in pre-election
litigation as a way to buy time to allow the heat of the
union's message to chill prior to the election.
Mr. Chairman, I ask unanimous consent to introduce a
document from the Jackson Lewis law firm website into the
record.
Chairman Walberg. Without objection, and hearing none, it
will be entered.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Sablan. Thank you.
The National Labor Relation Act -- the NLRA seeks to assure
employees the fullest freedom of association and does so by
directing the National Labor Relations Board to determine the
unit appropriate for the purpose of collective bargaining. Yet
this bill directly empowers employers to gerrymander the
bargaining unit by allowing them to add voters who do not share
an overwhelming community of interests with those seeking to
form a union and might have no interest in joining a union.
As we learned in our February 14 subcommittee hearing, the
NLRB's Specialty Healthcare decision ensures the voting unit
cannot be gerrymandered by the employer. Eight -- eight
separate federal circuit courts of appeals have approved this
decision, and not one has overturned it.
Specialty Healthcare has not led to the parade of horribles
trumpeted by those who claim that microunits would proliferate
and create havoc. The median bargaining unit size has remained
at approximately 26 in the years before and after a Specialty
decision.
But before I close, I ask my colleagues not to be deceived
by the names given to these union elimination bills. The
Employee Rights Act takes rights away from employees. The
Employee Privacy Protection Act does not protect intrusions of
an employee's privacy from their employer. And the Workforce
Democracy and Fairness Act undermines fair and democratic union
elections by allowing unnecessary delay on elections based on
gerrymandered voting units.
This is the 27th hearing that this committee has held on
unions since my colleagues start -- the Republican majority
took over. And I hope in the future we can spend nearly that
amount of time on retirement security, job safety, and other
issues more pressing to the American people.
While we may disagree, I want to thank the chairman for
allowing regular order on these bills. I also want to thank
each of the witnesses for taking the time to prepare their
testimony and appear here today. And I thank you also for your
patience because of the delay.
Finally, I want to recognize a young lady, Nadia Ali, who
is here today. Nadia is interning in my congressional office
this week as part of the program with the Girl Scouts of
America.
Welcome, Nadia.
And I yield back, Mr. Chairman.
[The statement of Mr. Sablan follows:]
Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking
Member, Subcommittee on Health, Employment, Labor and Pensions
Thank you Chairman Walberg for holding this hearing today.
At my first hearing as Ranking Member of this subcommittee I stated
that the purpose of the National Labor Relations Act was to strengthen
unions as an institution in our economy to ensure that wealth is more
fairly shared.
When working Americans are empowered to collectively bargain with
their employers over wages and conditions of employment, productivity
gains can be linked to wage growth.
However, the three bills under consideration today sabotage
workers' ability to organize and collectively bargain for a better
life. Make no mistake about it, taken together these bills are not just
union busting bills, they are union elimination bills.
Workers should have a right to a fair union election. In any normal
election, you have to win a majority of those voting to win. H.R. 2723
would require the union to win a majority of all eligible voters. This
means that every person who does not vote is counted as a ``no'' vote
against the union.
My colleagues all know that is not how our elections work and that
many of us would not be here if we had to get 50% + 1 of all eligible
voters in our elections.
H.R. 2723 would mandate an election every three years, if 50% of
the workforce changed, on whether employees should even have the right
to have a representative and collectively bargain. Workers already have
democratic rights under union constitutions: they can vote on their
collective-bargaining agreements, and, under existing law, they can
vote to decertify their unions if they do not want one. This bill would
force each local union to misdirect its resources to battle for its
very existence on a continuing basis, instead of building a stable
collective bargaining relationship. It is fundamentally at odds with
the NLRA's stated purpose to promote collective bargaining.
Employees have a right to be fully informed in a union election.
Yet both H.R. 2775 and H.R. 2776 would overturn the NLRB's Election
Rule that promotes transparency by assuring that the union and the
employer have the same employee contact information.
H.R. 2776 would provide three major impediments to union elections.
It would impose a minimum 35-day waiting period just to hold an
election, even in instances where the employer and employees agree to a
speedier election. It would delay pre-election hearings for at least 14
days. And, it reverses a rule that requires litigation on some issues
to occur only after the election. The bill would enable frivolous
litigation which is often used for the purpose of delay. In fact,
employer law firms openly encourage companies to engage in pre-election
litigation as a way to buy time to allow ``the heat of the union's
message to chill prior to the election.''
Mr. Chairman, I ask unanimous consent to introduce a document from
the Jackson Lewis law firm website into the record.
The NLRA seeks ``to assure employees the fullest freedom of
association,'' and does so by directing the National Labor Relations
Board to determine ``the unit appropriate for the purposes of
collective bargaining''. Yet this bill directly empowers employers to
gerrymander the bargaining unit, by allowing them to add voters who do
not share an ``overwhelming community of interest'' with those seeking
to form a union and might have no interest in joining a union.
As we learned in our February 14 Subcommittee hearing, the NLRB's
Specialty Healthcare decision ensures the voting unit cannot be
gerrymandered by the employer. Eight separate Federal Circuit Courts of
Appeals have approved this decision, and not one has overturned it.
Specialty Healthcare has not led to the parade of horribles
trumpeted by those who claim that ``micro'' units would proliferate and
create havoc. The median bargaining unit size has remained at
approximately 26 in the years before and after the Specialty decision.
Before I close, I ask my colleagues not to be deceived by the names
given to these union elimination bills. The Employee Rights Act takes
rights away from employees. The Employee Privacy Protection Act does
not protect intrusions of an employee's privacy from their employer.
And the Workforce Democracy and Fairness Act undermines fair and
democratic union elections by allowing unnecessary delay and elections
based on gerrymandered voting units.
This is the 27th hearing that this committee had held on unions
since the Republicans took over the majority. I hope that in the future
we can spend nearly that amount of time on retirement security, job
safety and other issues more pressing to the American people.
While we may disagree, I want to thank the Chairman for following
regular order on these bills. I also want to thank each of the
witnesses for taking the time to prepare their testimony and appear
here today.
Finally, I want to recognize a young lady, Nadia Ali, who is here
today. Nadia is interning in my office this week as part of a program
with the Girl Scouts of America. Welcome Nadia.
I yield back.
______
Chairman Walberg. I thank the gentleman.
And now we've heard the parameters of the issue, and that's
the way it should be.
And, Nadia, welcome.
Pursuant to committee rule 7(c), all members will be
permitted to submit written statements to be included in the
permanent hearing record.
And, without objection, the hearing record will remain open
for 14 days to allow such statements and other extraneous
material referenced during the hearings to be submitted for the
official hearing record.
It's now my pleasure to introduce our distinguished panel
of witnesses. Ms. Nancy McKeague, from my home state of
Michigan, is senior vice president of employer and community
strategies and chief human resources officer for the Michigan
Health & Hospital Association and not a stranger to this panel.
Welcome.
Ms. Karen Cox is a cycle counter handling inventory at an
auto parts storage facility in Dixon, Illinois.
Welcome.
Mr. Jody Calemine is general counsel at the Communications
Workers of America. Additionally, Mr. Calemine is a former
staffer here at the committee for the minority.
Welcome back.
Mr. Seth Borden is a partner at McGuireWoods LLP,
representing management in labor and employment matters.
Welcome.
I'll now ask our witnesses to raise your right hand.
[Witnesses sworn.]
Chairman Walberg. Let the record reflect the witnesses all
answered in the affirmative.
Before I recognize you to provide your testimony, let me
briefly explain our lighting system. Most of you have been
through this before, but it's like the traffic light. When it's
green, keep going in your five minutes of testimony. When it
hits yellow, begin to wrap up. You have a minute remaining. And
when it hits red, don't be like me, just sliding it through,
but finish your thought as quickly as possible. And we'll have
opportunity to ask questions. It will probably bring further
opportunity to finish your statements.
And so now let me recognize our first witness for the first
five minutes of testimony, Ms. McKeague.
STATEMENT OF NANCY MCKEAGUE, SENIOR VICE PRESIDENT AND CHIEF OF
STAFF, MICHIGAN HEALTH & HOSPITAL ASSOCIATION, OKEMOS,
MICHIGAN, TESTIFYING ON BEHALF OF THE SOCIETY FOR HUMAN
RESOURCE MANAGEMENT
Ms. McKeague. Thank you, Mr. Chairman. Good afternoon to
all of you.
And my sympathies to you, your staff members, and those who
protect you for the situation this morning.
Good afternoon, Chairman Walberg, Ranking Member Sablan,
and the members of the committee. It's an honor to be here to
discuss legislative reforms to the National Labor Relations
Act.
I serve as senior vice president and chief of staff for the
Michigan Health & Hospital Association, or MHA, a nonprofit
association advocating for hospitals and the patients they
serve throughout the state of Michigan. And I appear before you
today on behalf of the Society for Human Resource Management,
or SHRM.
Mr. Chairman, SHRM has always supported balanced labor-
management relations and believes an employee's decision on
unionization should be based on relevant and timely information
as well as free choice. Additionally, H.R. professionals have a
responsibility to understand, support, and champion employment-
related actions that are in the best interest of both the
organization and its employees regarding third-party
representation by labor unions.
Unfortunately, the NLRB's ambush rule substantially
shortens the period of time when a representation petition is
filed and when an election is held while severely hampering an
employer's right to exercise free speech during union
organizing campaigns. The rule also cripples the employer's
ability to learn the employer's perspective on the impact of
collective bargaining on the workplace.
Consider, for example, that MHA allows employees up to five
weeks to complete their annual benefit open enrollment, a
friendly, noncontroversial process that requires open dialogue
between the employer and employee so both parties understand
their healthcare elections. During this time, our employees
have access to our providers so they're fully educated on any
potential changes and the impact those changes might have on
them or their family. This engagement provides our employees
assurances that everyone is best interests are served.
Although MHA has never experienced an organizing effort, I
know SHRM members that have, and it's clear to me that a
similar amount of time and focus would be needed to educate
supervisors, staff, and employees about the rights,
requirements, and our perspectives on the organizing drive.
But the ambush rule would greatly diminish the ability of
employers to adequately respond, because it allows for an
election within 11 days of a petition being signed. Now,
contrast this with the ability of unions to prepare for their
entire organizing campaign before it's made public, which
clearly creates an imbalance between the rights of employees,
employers, and labor organization in the pre-election period.
This imbalance is compounded for small employers who may lack
an H.R. professional or access to legal counsel, and for multi-
state employers who may have decentralized operations, making
expedited communication with employees very difficult.
Given these concerns, SHRM appreciates the chairman's
leadership in introducing H.R. 2776, the Workforce Democracy
and Fairness Act to restore fairness to union elections,
providing both employers and employees ample time to review a
union petition.
Now, I want to take a minute to discuss employee privacy
issues associated with the Excelsior List. SHRM is deeply
concerned that the ambush rule requires employers to provide
personal information to union organizers, including home
addresses, home and cell phone numbers, without employees'
consent once a union petition has been signed.
Mr. Chairman, this is abhorrent, and it goes against
everything that H.R. professionals have been trained to do
without providing any safeguards for the information being
shared with union organizers. Therefore, SHRM supports H.R.
2775, the Employee Privacy Protection Act, to address these
privacy concerns and allow employees to choose how they want to
be contacted if a union petition is signed.
Finally, SHRM is concerned with the interplay between the
NLRB Specialty Healthcare decision and the ambush rule. Their
concurrent existence provides labor organizations the ability
to effectively target any industry or subgroup with the union
petition.
As outlined in my written statement, MHA has been advising
hospitals across the state to prepare for this type of micro-
union organizing activity because the success of any hospital
is dependent on the ability of its staff members to work as a
cohesive unit with mutual respect. And this decision threatens
this vital component and empowers union organizers to create
division and discord among professional employees.
In closing, Mr. Chairman, SHRM looks forward to working
with this committee to advance H.R. 2775 and H.R. 2776.
Importantly, these bills would modernize the election process
while providing employees the privacy they desire while also
restoring the delicate balance between the rights of employers,
employees, and labor organizations.
Again, thank you for this opportunity, and I look forward
to your questions.
[The statement of Ms. McKeague follows:]
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Chairman Walberg. Thank you.
Now I recognize Ms. Cox for your five minutes of testimony.
STATEMENT OF KAREN COX, DIXON, ILLINOIS
Ms. Cox. Chairman Walberg, Ranking Member Sablan, and
members of the committee, thank you for the opportunity to
testify today. My name is Karen Cox. And I'm here today from
Dixon, Illinois, a small town from about two hours west of
Chicago and the boyhood home of former President Reagan.
Today, I work at an auto parts storage facility in Dixon,
but I was previously employed at a cold storage facility in
Rochelle, Illinois. For those of you who have not worked in
cold storage, a typical day involves wearing full-body freezer
gear and using a standup forklift to move pallets into and out
of a storage freezer.
My story begins in the spring of 2012. Rumors started going
around about a union trying to come into our workplace. To be
specific, this was the Retail, Wholesale, and Department Store
Union, or RWDSU. I didn't take it that seriously because my
coworkers and I were pretty content with our jobs.
Soon we learned we were going to have an election. I was
not particularly happy about it, but I thought at least we had
time to educate ourselves and have a fair vote. But then I came
into work 1 day and I was told the union was in and we were not
going to have an election. The company had recognized them
through a process called card check. This bypasses a secret
ballot election, eliminating employees' rights to make a real
choice for or against a union. I had never heard of this
before, and it angered me. To me, it was un-American, and many
of my coworkers agreed.
Several employees had signed cards because they had been
told they would just receive information about the union. They
didn't know that, if the union got enough signatures, 50
percent plus one, the company could recognize them and they
could come in without an election.
I had no experience with labor law and no clue what to do.
After several phone calls to the National Labor Relations
Board, I eventually got in touch with a lawyer from the
National Right to Work Foundation who helped guide me through
the process to remove the union from the workplace, which is
called decertification. It requires collecting signatures from
30 percent of the coworkers in the bargaining unit. I had to do
this on my own, in break areas only, and during nonworking
hours. It was a frustrating process, and I dealt with intense
pressure from the union.
In November 2012, I made the two-hour trip to Peoria and
filed the first petition with the NLRB. On my way back, I got a
phone call from my dad. He told me a rep -- our union rep
contacted him and mentioned something about people losing their
jobs and said that I needed to settle my grievances. My dad
said: Watch your back because that was a threat.
And I was shocked.
After I filed my third petition in June 2013, we were
granted an election. It was held a couple months later in
August. However, since the union had appealed, we were unable
to see the results, and the ballots were locked up until a
decision was made on their appeal. A year later, we were still
waiting on that decision, and the union contract that they
negotiated for us was basically the company handbook. We were
paying dues for something we already had.
After several more months of waiting, in the spring of
2015, the NLRB finally made a decision. They concluded that we
did not deserve the decertification election because, although
the union had a year to bargain and had even scheduled a
contract ratification before I filed the petition that got us
the election, they still had not had enough time to bargain.
The ballots were destroyed, and we will never know the
results. Today, I work at a different storage facility, but my
experiences with the union at my last job will be with me
forever. I am not anti-union, but I believe that all employees
deserve a fair and secret vote on whether or not they want to
join a union.
That's why I support the Employee Rights Act, which
guarantees a secret ballot vote. I want to ensure that other
employees don't find themselves in the situation my coworkers
and I were in: stuck with a union we didn't have a chance to
vote for and that is difficult, if not impossible, to remove
from the workplace.
Thank you for your time today, and I'd be happy to answer
any questions.
[The statement of Ms. Cox follows:]
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Chairman Walberg. Thank you, Ms. Cox, for your testimony.
Mr. Calemine, welcome, and I recognize you for your five
minutes.
STATEMENT OF GUERINO J. CALEMINE, III, GENERAL COUNSEL,
COMMUNICATIONS WORKERS OF AMERICA, WASHINGTON, D.C.
Mr. Calemine. Thank you, Chairman Walberg, Ranking Member
Sablan, and members of the subcommittee. My name is Jody
Calemine. I am general counsel of the Communications Workers of
America. We represent hundreds of thousands of workers in the
private and public sectors across the United States, Puerto
Rico, and Canada. Thank you for the invitation to testify
today.
Before I begin, I too want to express my shock at the
events this morning. On behalf of myself and the Communications
Workers, our thoughts and prayers are with all the victims this
morning. It's a horrific, heartbreaking event that we had
today.
As you said, not long ago, I used to work for the
committee. It feels very funny sitting in front of you instead
of behind you, but it's -- you know, it's great to be back. I
wish it was under different circumstances. I wish it was about
a bill that would bring us all together. I wish it was about a
bill that would bolster workers' rights.
I wish we were here to consider a bill that would allow
workers to freely exercise the full breadth of their bargaining
power, so that they can negotiate a better life for themselves
and their families to share in the wealth that they helped
create in this country.
I wish we were talking about a bill that would allow more
workers to stand up and fight to bring jobs back to the United
States. I wish. I wish.
Instead, the committee is considering three bills that, in
my view, are nothing but bad news for American workers, and so
I must speak out against them. I will try to stay measured
about this.
I worked on the Hill for 11 years, and all that time, I
never saw a bill as extreme and provocative and anti-union,
anti-worker as the Employee Rights Act. Hands down, it is the
most far-reaching assault against workers' organizations that
I've seen introduced in the U.S. Congress in modern times. I,
personally -- I was beside myself when I read it.
Taken together, as they are presented at this hearing,
these bills are a very loud alarm bell. In provision after
provision, an already tilted playing field is tilted even
further against the American worker.
Briefly, here's what they do: The default way that workers
organize a union in the private sector is with an NLRB
election. The bills do their best to rig that election against
workers and their unions. For example, they try to block
workers from communicating with a union before an election.
If an election happens, the bills stuff the ballot box with
anti-union votes by counting every person who doesn't vote as
an anti-union vote. Congressional elections aren't run that
way; if they were, few, if any, Members here probably would
have won their elections.
These bills work hard to delay union certification
elections, to give employers more time to campaign while
creating a new decertification process that can be triggered by
the employer and for which these bills tolerate zero delay.
If you're a worker trying to get a union, these bills make
you wait. If you're an employer trying to destroy a union,
these bills give you the fast track. These bills allow
employers to gerrymander the elections, to pack the voter rolls
with workers who haven't been involved in the organizing drive
and didn't petition for the election, because the employers
hope these workers will be ``no'' votes.
And if workers try to escape this unfair government-run
process by negotiating a voluntary recognition agreement with
their employer, well, these bills won't permit it. They strip
workers of the least conflict-ridden way to win union
representation.
These bills contain at least five different ways to drain
union treasuries with pointless expenses. These bills strip
union members of control of their own unions and outrageously
give that control to employers and nonmembers. These bills seek
to criminalize strikes and do their best to make being a union
member an identity crime.
I would be happy to answer questions about how the bills
accomplish these ends, but I think the more interesting
question is ``why?'' We've seen this across the country, many
assaults against workers' rights to organize and collectively
bargain in statehouses and the courts and here.
But labor unions win workers higher wages, better benefits,
safer working conditions. That's our mission. Labor unions
fought for and helped win things like minimum-wage increases,
health and safety protections, sick leave, family leave, Social
Security, and civil rights, and we do stand in the way of their
repeal.
Labor unions call out unfair trade agreements, and fight
everyday to stop companies from outsourcing jobs overseas and
to bring offshore jobs back home. Workers joining together and
fighting for a better life, that's one of the things that made
America great. Unions fought for and won the American Dream for
millions of Americans over the last century. We are the single
best private sector mechanism for raising workers' wages.
Unions are your fellow Americans. Our membership cuts
across race, gender, and ethnicity, party lines--pulling people
together for a common project to look out for one another. We
have a right to exist. Workers' voices matter to an individual
company, to the economy, and to our democracy. No one can make
America great again without us.
Thank you.
[The statement of Ms. Calemine follows:]
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Chairman Walberg. I thank the gentleman.
And I recognize Mr. Borden for your five minutes of
testimony.
STATEMENT OF SETH H. BORDEN, PARTNER, MCGUIREWOODS LLP, NEW
YORK, NEW YORK
Mr. Borden. Good morning, Chairman Walberg, Ranking Member
Sablan, and distinguished members of the subcommittee. It is a
great honor and privilege to appear before you today.
I want to echo the sentiments of the rest of the panelists
and indeed some of you. My family will keep you all and your
colleagues in our thoughts and prayers as we go forward.
My name is Seth Borden. I'm a partner in the New York
office of the law firm McGuireWoods. I'm not appearing today on
behalf of any clients however, and my testimony does not
necessarily reflect the views of McGuireWoods or any of my
colleagues.
I've been practicing traditional labor and employment law
for 19 years, representing employers of all types and sizes in
a variety of industries across the United States before the
National Labor Relations Board. A copy of my firm bio is
provided with the written version of my testimony.
The Board's final rules, effective April 2015, overhauling
representation election procedures and the Board's 2011
decision in Specialty Healthcare cast aside standards and
procedures that had worked for decades. To turn a phrase, the
Board sought to fix something that wasn't broke in an effort to
facilitate private sector union organizing.
Passage of H.R. 2776, the Workforce Democracy and Fairness
Act, and H.R. 2775, the Employee Privacy Protection Act, will
be a significant step forward to reversing these unnecessary
and misguided policy changes and restoring the proper balance
of rights and interests that had worked sufficiently for most
of the Board's history.
The Board's 2015 rule all but eliminated pre-election
resolution of very significant legal issues, like eligibility
and unit inclusion, deferring litigation until after the
election. In addition, the Board implemented new time targets,
reducing the pre-election period during which employees can
learn and contemplate their decision to as few as 13 days.
These changes limit employer free speech protected by
Section 8(c) of the National Labor Relations Act and infringe
on the section 7 rights of employees to refrain from union
activity. Postponing resolution of important legal issues until
after an election only serves to enhance union electoral
success by leveraging employer uncertainty and risk.
H.R. 2776 would restore the pre-election hearing process.
It will require a hearing absent agreement of the parties,
provide time for the parties to prepare, and allow for the
creation of a complete evidentiary record on all relevant and
material issues expected to impact the outcome of the election.
The Board's 2011 Specialty Healthcare decision announced a
new standard for determining whether a bargaining unit proposed
by a petitioning union is appropriate. It cast aside
presumptions which were the result of decades of practical
experience in case law development and opened the door to so-
called microunit organizing, whereby unions are the ones that
can gerrymander a larger workforce and cherry-pick smaller
units best suited to organizing success.
Potential proliferation of microunits within a single
workplace does not promote but rather threatens industrial
peace and stability. It's all but certain to restrict an
employer's ability to meet operational demands by efficient,
flexible staffing, limit cross training and promotional
opportunities, and lead to higher customer prices and budget
pressures.
H.R. 2776 would reverse this misguided policy direction and
restore the Board's traditional community of interest analysis.
It would provide additional stability and mitigate the ability
of future boards to misuse newly announced standards by
expressly incorporating these traditional factors into the body
of the statute. These standards are far more consistent with
the express terms and intent of the NLRA and had effectively
met expectations for decades.
The Board's 2015 rule also forces the employer to turn over
extensive personal employee contact information. Now, within
two days after direction of an election, the employer is now
required to turn over the eligible voters' names and mailing
addresses as well as all available personal email addresses and
all available home and personal cell phone numbers.
These requirements needlessly violate the section 7 rights
of employees to refrain from union activity and the expectation
of privacy employees have when providing personal contact
information to their employers. More importantly, these days,
no one is immune from the risks of hacking, phishing attacks,
and identity theft, all of which increase with the volume of
unwanted email or text messages directed at employees. Finally,
many employers simply do not have all of the required
information in one location or in a single common format for
compiling and emailing in a two-day timeframe.
H.R. 2775 will restore the seven-day timeframe for the
careful compilation and transmittal of employee information to
the Board, which worked sufficiently for nearly 50 years.
Moreover, it would afford employees the choice of which method
of contact each would prefer. This puts the choice of showing
interest and sharing private contact information in the hands
of the employees, where the statute would place it.
For all these reasons, the subcommittee should move
expeditiously to passage of H.R. 2776 and 2775 to fundamentally
correct the unnecessary and misguided direction of the last six
years. I look forward to your questions.
[The statement of Mr. Borden follows:]
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Chairman Walberg. Thank you for your testimony.
Thanks to each of you.
And now, noting that the witnesses pretty well kept to the
time period, I would say the same thing to my colleagues here -
- of course, not the one I'll recognize first, and that's the
chairwoman of the full committee, Mrs. Foxx.
We welcome you for your statements.
Mrs. Foxx. Thank you, Mr. Chairman.
As chair of the full committee, I just want to take a
moment to thank everyone for accommodating our time change
today, especially the witnesses who came from out of town.
As Mr. Walberg noted in his opening comments, this is a
very sad day for this House. I know we're all praying for our
colleagues, Members and staffs and brave Capitol Police,
officers who suffered such a terrible act of violence this
morning.
But I truly believe that the best way we can honor our
friends who are in the hospital or recovering with loved ones
this afternoon is by doing what they would be doing if their
day had not taken such a tragic turn, is by doing what all of
us came here to do, and that's the people's work. So I do want
to thank again everyone, our colleagues on both sides of the
aisle, for being here.
Now, I'd like to ask some questions of our witnesses. And,
again, thanks to all of you for being here today and providing
your valuable testimony and staying within the timeframe.
Ms. McKeague, there's obviously concern among workers that
the ambush election rules require employers to turn over to
unions a number of pieces of personal information, including
workers' home addresses, phone numbers, personal cell numbers,
personal email addresses. This rule also puts employers in a
difficult position.
Can you give some examples of the burdens the 2015 changes
to [Excelsior List] pose for employers? Additionally, what
types of problems arise from needing to provide more
information only two days as opposed to the prior seven-day
standard?
Ms. McKeague. Yes. Thank you very much.
As most of you are probably aware, because you've been in
the position of being on the giving side of that information
stream yourself, we compile a lot of information about our
employees, and it may be in a couple of different databases. So
we have, you know, home addresses, home telephone numbers, cell
phone numbers when they give them to us. We have the same
information about their dependents. We start collecting Social
Security numbers as soon as they're issued on their infants. We
have military records. We have background check information. We
have all sorts of sensitive information, and they're stored in
a variety of different ways.
The problem it creates for me, as an H.R. professional, is
that these employees trust me to keep that information
confidential. Because with the wealth of information I have, I
can become them if I wanted to for purposes of applying for a
credit card, getting a mortgage, doing anything that I
shouldn't do with this. The chief rule I have for our H.R. team
is that to misuse or leave that information out where it's
available to somebody else is a dischargeable offense.
In order to provide the Excelsior List information, I have
to sort out from that what's being asked for on the Excelsior
List. I have to check to make sure that it's accurate, because
if it isn't accurate, I can be fined for that.
Employees don't always update the information with me. For
instance, a lot of my employees now, while I have a landline
listed for them, they no longer use a landline, so I just have
a cell phone. They certainly don't update the cell phone if
they get a secondary cell phone.
So it takes me a while to go back through that to make sure
that it's as complete as it can be. And I only have 110
employees. So I can only imagine what it's like at a larger
enterprise, which is more likely to be the target of an
organizing drive.
Mrs. Foxx. Thank you very much.
Mr. Borden, over the last eight years, the National Labor
Relations Board made a lot of changes under the facade of
helping workers. However, it appears to some of us that these
changes actually hurt those they're intended to protect.
For example, it seems to me the Board should be able to
review the decision of a regional director before union
election takes place. Can you give some examples of why pre-
election board review is essential?
Mr. Borden. I'd love to. I think that this is, in
particular, an area where the Board's 2005 -- 2015 rule, pardon
me, got it exactly wrong. I think that when there are important
questions of unit eligibility, inclusion, important legal
issues that are likely to impact the conduct of the parties in
the weeks leading up to an election and possibly impact the
election itself, it is in everybody's best interest to have
those issues resolved at the outset.
Nobody wants to play an entire game only to find out after
the final buzzer that the rules have been completely changed
and all of a sudden Tom Brady is on the other team and all his
touchdowns count for them instead. No one wants to find out the
rules that they're playing under after the fact.
And I think that the restoration of the pre-election
hearing process here to resolve those issues -- is someone a
supervisor or not? That has very, very serious legal
implications for an employer and the people with whom it can
communicate and how it communicates during an election contest.
Issues of eligibility, voter eligibility, the Labor Board
does a phenomenal job of protecting the secrecy and the privacy
of the ballots cast. But my experience has been that employees
don't want to hear: Oh, your eligibility is being contested so
you can vote in this election, but your ballot may become the
source of litigation after the fact.
That has a chilling and intimidating effect that is
unnecessary if we are able to resolve those issues at the
outset.
Mrs. Foxx. Thank you.
And I just want to say, Ms. Cox, thank you for the courage
you showed and the actions you took and for being here to share
that.
Thank you, Mr. Chairman. I yield back.
Chairman Walberg. I thank the gentlelady.
And I recognize the ranking member, Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman.
Mr. Calemine, Jody, welcome back. It's good to see you
again. Thank you very much for appearing this afternoon, and
thank you for your many years of service to this committee.
Your statement says that, while the three bills under
consideration today are relatively short, they are packed with
malicious intent. You pointed out that the true goal of the
legislation is to weaken or eliminate unions. So, if this bill
is forever enacted, what would become of collective bargaining,
and what would be the effect on income inequality in our
nation?
Mr. Calemine. It's well studied that unions help push wages
up, not just for their own -- the companies that are
unionized--but their competitors then are forced to increase
wages and benefits. A good example would be in the auto
industry: UAW has done a good job of setting standards for
wages, and it has helped push up wages across the industry.
It would, in an immediate sense, as union -- if unions were
eliminated, when we bargain, we bargain higher wages. We have I
think a 27 or so percent difference between what union members
make or what unionized workforces make compared to nonunionized
workforces. It makes a huge difference in terms of -- that
difference is even more dramatic when you look at the wage
differences between union and nonunion workers who are women or
African American or Latino.
It just -- it does -- if we were to -- if these bills were
to become law and organizing were to become next to impossible,
especially under the Employee Rights Act, we would see income
equality, just to get to the bottom line here, exacerbated and
all the social and economic ills that come along with that.
Mr. Sablan. All right. Yeah.
And H.R. 2723, if it becomes law, it would require the
majority of all eligible voters in order to certify the
establishment of a union but would only require a majority of
those actually casting ballots to the decertify a union. So
that means that all nonvoters are ``no'' voters when it comes
to electing a union, and you alluded to saying that some of us
may not be here. I agree with you, my first two elections, I
would not be here.
But is there a double standard that sets out different
tests for certification and decertification elections, or is
this simply what it appears to be, a blueprint to eliminate
unions?
Mr. Calemine. Well, it's absolutely a double standard in
this bill, what the Employee Rights Act does. As you said, if
you are a nonunion workforce trying to become union, to do that
you would need the votes of all eligible voters -- or I'm sorry
-- a majority of all eligible voters to win.
If you're a union shop, going through this automatic
decertification process that has been -- that is introduced in
this new bill, to decertify, you only need a majority of the
votes cast. So it's far harder to win a union, far easier to
eliminate a union.
Mr. Sablan. So, then, if I understand H.R. 2723 correctly,
there's a mandatory requirement for union recertification
elections also every three years if there is a 50 percent
employee turnover since the previous union election. So doesn't
this effectively amount to a decertification process even
though there was no decertification petition filed?
Mr. Calemine. Right. Even though no worker may have wanted
to decertify, there's now this process that causes an election
to happen when the workforce changes by at least -- or, I
guess, one more than 50 percent.
Mr. Sablan. Right.
Mr. Calemine. There's an automatic decertification,
probably triggered by the employer's changes to the workforce.
Mr. Sablan. Right.
And, Jody, you very well know me. I'm from the insular
areas, the territories. In this committee, we're calling the
outlying areas. On Sunday or Saturday, there was an election in
Puerto Rico where 93 percent of those who went to vote voted
aye for statehood, but only 26 or 27 percent of the population
of the registered voter population voted. So is that a majority
of voters? I mean, is that how we would win union elections
also?
Mr. Calemine. Yeah, I don't follow exactly, but it doesn't
sound like it.
Mr. Sablan. All right.
Mr. Chairman, my time is up. Thank you.
Chairman Walberg. I thank the gentleman.
Now I recognize the gentleman from Georgia, Mr. Allen.
Mr. Allen. Thank you, Mr. Chairman.
And thanks to our panel for being here and talking about
this important issue.
Mr. Borden, I'm interested to know about the impact of the
combination of all these Board changes in recent years. For
instance, what is the relationship between Specialty Healthcare
and the NLRB's ambush election rule, and what effects have you
seen since the decision and the rule were handed down?
Mr. Borden. Sorry. I think it's hard to even focus on just
the interchange of those two changes because there were so many
changes during the last five or six years where the Board
changed drastically longstanding principles of law that are
critical to an employer's approach to these issues and critical
to the balance of the employees' unions and the employers'
rights: the joint employer standard, which was overhauled
significantly; the multiemployer bargaining unit cases whereby
third-party employees can be included with the regular full-
time employees of an employer without the consent of all
parties; and even some of the more discrete issues like use of
the employers' equipment for organizing purposes.
These all cast aside 30, 40, 50 years of precedent and the
manner in which employers were accustomed to doing things. When
you add in the fact that now, on a compressed time framework,
where the employer has only a few days after the filing of a
petition to discover all of the legal issues that they may have
to approach, consider these new legal frameworks, compile all
of the evidence that might be necessary for assessing and
addressing those issues to the Board in the hopes -- in the
hopes -- of getting a hearing to create a record and preserve
issues, and then you couple that with the further complication
of the Specialty Healthcare standard that they'll be forced to
consider and the need to do all of these other things, like
compiling all this data that Ms. McKeague spoke about, in order
to get it to the union within just two days after that
direction of election, it eats significantly into the resources
and the focus that employer has to exercise its free speech
rights for whatever timeframe it might have before that
election.
Mr. Borden. And it makes it harder to comply with all of
the technicalities.
Mr. Allen. Certainly, Ms. Cox, in your testimony, you
brought some examples about some of the issues you've dealt
with. You know, we're talking here today about legislation that
would correct some of these things.
Mr. Borden, you talked about -- let's talk about the
overwhelming community of interest test. When does the Board
use this test in determining bargaining units, Mr. Borden?
Mr. Borden. Well, the answer to that question differs as to
whether you meant before 2011 and the Specialty Healthcare
decision or now. The overwhelming community of interest
language was plucked out of an unrelated standard that the
Board employed in -- traditionally in accretion cases, which is
the standard that's applied when you have an existing
bargaining unit in place represented by a union. And the union
or employees petition for the inclusion of another group of
employees into that existing bargaining union without an
election. And the Board had traditionally looked at that and
said, we'll only allow that to take place if those additional
employees share an overwhelming community of interest with the
already represented employees.
Mr. Allen. Okay.
Mr. Borden. The Specialty Healthcare case, pluck that
language out of context and applied it to the traditional test
that turned the traditional test on its ears to change and add
a significant burden to employers when they wanted to challenge
the handpicked unit that a union petitioned for.
Mr. Allen. Does the Workforce Democracy and Fairness Act
adequately address this issue? Do you believe it?
Mr. Borden. I think it does. I think it does by -- as I
said in my opening comments, by putting the traditional
community of interest factors, the test that had been used for
decades prior to Specialty, expressly into the language of the
statute, it would provide that clarity and that stability, the
inability of a future board to approach this issue unilaterally
and kind of whimsically change the standard.
Mr. Allen. I yield back, Mr. Chairman.
Chairman Walberg. I thank the gentleman.
And I recognize the gentleman from New Jersey, Mr.
Norcross.
Mr. Norcross. Thank you, Chairman. And our thoughts go out
for what happened today, a remarkably sad day.
But I want to start with what the Speaker talked about, and
that is the relationships and working together. You on this
panel know that I worked as a business agent for close to two
decades. I've lived what you're talking about today. And my
hand is extended, and any time you'd like to hear a view from
the opposing side, who have been to the NLRB, who had filed
elections.
But let's look at the facts. It almost seems like we're in
some alternate universe of how bad the employer has it. I'm
going to bring to your attention the percentage of union
workers over the course of the last quarter century. When those
are telling us you have it so bad. We're down to 10 percent,
the union side. You can see it behind you. So all these
horrible rules, yet you're still winning all the elections.
Facts count, and this is what I want to be talking about.
Now, we as a country many years ago decided that people
would have a voice in the workplace, that they would be able to
join unions, have collective bargaining. Well, there's been a
tremendous drop over the course of -- since 1983. And there is
just so much to cover here today, but I want to try to focus in
on a couple of those.
First and foremost, when we talk about access to the
employees, the employer has unlimited access. They have any
number of meetings that they want to put together, there's
captive audiences. It's up to you. And you're suggesting that
you don't even know your own employees. And to say you can't
pull the electronic information out--I think my 12-year-old
grandson could pull that out. This is not burdensome. In fact,
union membership has gone down since you put this rule into
effect. I know the lawyers like it. This creates a lot more
opportunities, but this is just trying to create fairness.
There was a statement made by Ms. Cox that talked about the
employees who had signed the authorization card to receive --
they said they thought they were going to receive union
information. The fact of the matter is that can be used as an
unfair labor practice. And I have one right in front of me that
talks about exactly what it says: I hereby accept membership in
the above-named union, and on my own free will, I hereby
authorize.
So, Mr. Calemine, is there anything in this that you would
say is deceptive?
Mr. Calemine. No, it's very plain language.
Mr. Norcross. It's one that's used universally, because the
card could be thrown out if it's not following the rules,
right?
Mr. Calemine. All cards have language along those lines.
Mr. Norcross. Why do you think we're in this position
today, the ambush rule as they call it? Where's the problem
with that if the elections are still, by majority, being won by
the employer?
Mr. Calemine. Well, I think -- I appreciate the question,
because it allows me to provide more context for what's going
on here. There isn't -- it's not as if when the petition is
filed -- I would be surprised if there's a case out there where
-- or that there are very many cases out there anyway where an
employer did not know workers were trying to organize a union
until that moment that petition was filed.
An organizing drive takes a lot of work and it is very
difficult, because the union does not have access to the
workplace; the employer has total access. So there's a lot of
attempting to get people's attention outside, to meet with
people outside of work. And as Ms. Cox described, when you're a
union supporter trying to organize a union, you're also
confined to nonwork areas, nonwork time when you're in the
workplace. So it's very difficult.
So I don't view this as ambush. I actually -- I think what
happens is when the petition is filed, I think it sends a
signal to the employer, uh-oh, they must now have the votes,
and now is the time to really start campaigning to switch those
people back. So the more time they have after a petition has
been filed, the better off they are. I think there have been
studies showing that that's the time when unfair labor
practices are more likely to be committed in that timeframe. So
I think that's a fine time to turn the election.
Mr. Norcross. Five seconds less on your support bill, but,
again, when we can work together, that's how our country will
grow, not by creating the good guys and the bad guys or the
union and the employer. We really could have a conversation and
work this out.
I yield back.
Chairman Walberg. I thank the gentleman.
And now I recognize the gentleman from Michigan, Mr.
Mitchell.
Mr. Mitchell. Thank you, Mr. Chair.
Ms. Cox, I don't want you to get bored there, especially
all the time you waited. And thank you to all of you for
rearranging your schedules today.
I'm aware of concerns that employees have that sometimes
they don't feel adequately advised what the consequences of
signing a card given to them by union organizers, union
representatives. In your experience, did the union provide you
and your fellow employees with accurate information about what
it meant to sign the card? And what recourse did you have?
Ms. Cox. Many of my coworkers were very upset after they
found out we were not going to have an election, because they
were told, no matter what it said on that card, they were told
that if they signed that card, they would get information about
the union, whether or not they wanted to decide to have a union
or not.
And they did this -- actually, nobody was doing this
petitioning outside of work like I did when I was doing it on
the other side. These people were doing it on work time and
inside the building, during work hours. They weren't supposed
to, but, you know, they were sneaky about it.
Mr. Mitchell. And you didn't think that was quite as
balanced as it should be, I assume?
Ms. Cox. No, I do not. I don't think that's fair at all.
Mr. Mitchell. Let me ask you a question, giving that
information, your personal information as part of the union
organizing drive, the current system has basically any of the
identifying information short of your Social Security number
and your address, all your telephone numbers, all of that is
required to be turned over as part of the organizing drive.
What's your opinion of that?
Ms. Cox. Of the union having my address and everything?
Mr. Mitchell. Address, all your phone numbers, your cell
number, they're entitled to all that, based on the current
rulings.
Ms. Cox. Well, I don't agree with it. I do know that, after
I started petitioning, many of the union reps were visiting
homes and upsetting many of my coworkers, because they came to
their door and tried to persuade them against me.
Mr. Mitchell. Did any of your benefits people come to your
home to talk to you about your health insurance benefit or
anything else?
Ms. Cox. No.
Mr. Mitchell. They didn't. But they're supposed to help you
out as workers. Do you know if any of the union organizers come
to talk to you?
Ms. Cox. No.
Mr. Mitchell. Did the union come to talk to you about what
the contract negotiation should be like? Did they stop in to
see your thoughts on that?
Ms. Cox. No, they did not.
Mr. Mitchell. So they only came by to make sure you signed
the card so they could organize.
Ms. Cox. Exactly.
Mr. Mitchell. Well, so much for being concerned about
representing the employees.
Ms. McKeague, we talked about the distribution of
information with the [Excelsior List.] My company had 650
employees. I'm not -- to be brutally honest with you, I'm not
sure we could ever comply with a two day turnaround with the
information required by that list. More importantly, is there
any other function that you had that requires you turn over a
list to that extent of your employees to some other entity?
Ms. McKeague. The only way I would turn over any of that
other information would be under a court order.
Mr. Mitchell. That would be as a result of some legal
action or a subpoena?
Ms. McKeague. Generally, the only other time I would get a
request for that kind of information without the employee's
consent would be under a pending divorce action or a child
custody dispute.
Mr. Mitchell. But that would only be for one employee,
correct?
Ms. McKeague. That would be one employee, correct.
Mr. Mitchell. One or two, depending on the circumstances.
Right.
Ms. McKeague. Yes.
Mr. Mitchell. But not all of your employees?
Ms. McKeague. No. I've never seen a circumstance where it
would be required for all of my employees.
Mr. Mitchell. And you've never -- other than the union
organizing activity, never seen -- I've never it in my career
other than this. It is the most unique thing I've seen.
Ms. McKeague. Correct. And this is information that all of
us teach our children not to hand out to anybody else because
of the risk.
Mr. Mitchell. As a matter of fact, you're right.
Ms. McKeague. Uh-huh.
Mr. Mitchell. And when we obtain utility service, health
insurance, I can give you a long list, we in fact only provide
specific information we want to provide for contact. We get to
choose. But in this one instance, under the current rulings,
all that information is released.
Ms. McKeague. And that's my objection, is it's done without
the employee's consent.
Mr. Mitchell. And to be direct and honest with you, it's my
objection as well, which is why I support the legislation that
would make this change and will urge us moving forward when it
comes time for markup.
My time has expired. I appreciate everyone being here. Have
a good weekend.
Chairman Walberg. I thank the gentleman.
Now I recognize the ranking member of the full committee,
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman.
Ms. McKeague, you mentioned some problems at the acute
hospitals. So there are special rules for organizing bargaining
units in acute care hospitals?
Ms. McKeague. I'm not a specialist in bargaining. Most of
my hospitals that are organized have very good cooperative,
respectful relationships with their bargaining units. And
assuming that this goes back to the Specialty Healthcare
decision, this is where I will agree with Mr. Calemine about
Specialty Healthcare.
I believe the circuit courts of appeals, it was mentioned
earlier, eight of them agreed with the NLRB on Specialty. I
think that was a very fact-specific case dealing with a
nonacute care facility and the bargaining unit. And I believe
the circuit courts got it right.
My concern on Specialty, which has since been used to deal
with microunits outside of the nonacute care setting, has been
that it could be used, if it isn't corrected, on a go-forward
basis in an acute care setting would be very dangerous.
Mr. Scott. Well, that's why there are special rules in
acute care hospitals. Has your position taken -- speaking of
healthcare, has your position taken a -- has your organization
taken a position on the TrumpCare?
Ms. McKeague. Yes.
Mr. Scott. What is it?
Ms. McKeague. The Michigan Health & Hospital Association
has taken a position. SHRM, which I'm here to testify on behalf
of, has not.
Mr. Scott. And what is that position?
Ms. McKeague. Michigan Health & Hospital Association is
opposed to the Affordable Health Care Act which the President
has proposed.
Mr. Scott. Thank you.
Mr. Borden, you've indicated a need to get everything
straight before the vote. If the subjects of the litigation
would be moot because the number of votes in controversy are
overwhelmed by the margin victory, why shouldn't the vote go
forward?
Mr. Borden. Well, I think there are, as I mentioned
earlier, there are practical consequences and possible real
legal exposure that employers are forced to undertake if they
don't have the certainty of certain issues.
Mr. Scott. Right. But, I mean, you can argue about one or
two votes here, one or two votes there. If the margin of
victory was like hundreds of votes, why would you delay,
through various levels of litigation, the vote to get -- to
figure out whether or not those votes are eligible or not
eligible when all of those questions would be moot if there is
a much larger margin?
Mr. Borden. I think because there are issues beyond simple
inclusion or eligibility of certain voters that pertain to
whether their vote will count or not. The issue of supervisory
involvement is one that I mentioned, is the one that springs
most chiefly to mind.
Mr. Scott. And if you're arguing about a handful of votes
when the margin is hundreds, why would you want to delay a bill
and wait for a final verdict?
Mr. Borden. Because it has nothing do with the handful of
votes. It has do with the fact that if there are 10 or 15
workers who an employer deems to be supervisors, management,
agents of the company, and the union contends are employees,
failure to resolve that issue at the outset has far reaching
consequences. Now, as an employer, I'm forced to make a
decision. I'm forced to either decide I'm not going to talk to
these 15 people, who I earnestly believe to be members of
management during this campaign, deny them the information and
my communications --
Mr. Scott. So if you can find side issues that would be
totally moot, if you could just get to a vote --
Mr. Borden. With due respect, I don't think the supervisory
issue is mooted. And, frankly, it threatens to undermine the
vote.
Mr. Scott. It would be mooted if you're talking about a
handful of supervisors and you're about to lose the election by
hundreds of votes. Why should you be able to delay for months
and even years an election, Mr. Calemine?
Mr. Calemine. Yeah. I was just pointing out -- I think the
question of whether or not somebody is a supervisor or not, if
it's a real problem for the employer, it's been a problem for a
long time, because the organizing drive has been happening for
a long time. You only get to resolve these questions at the
end. And it's at the end of that campaign, that long campaign,
whether the election is about to be delayed or not, on some
level.
I also just wanted to make a point that with respect to all
the information that the NLRB rules allow -- now have employers
provide to unions, these bills do not protect employees'
privacy from their own employers. That is, the employers can
compel employees to give them their email addresses, their
personal email addresses, their personal cell phones, et
cetera, for purposes of use in the campaign. So one side, again
-- and remember that the reason this has become an issue for 50
years getting this [Excelsior List] is that the union is not
permitted to come into the workplace.
It might be a completely different debate if what we were
actually debating was the unions -- to avoid having to talk to
workers outside of the workplace--if unions were entitled to
access to the workplace. That would be -- and in some cases,
that's what happens, employers and unions will reach an
agreement to provide for union access, but unions aren't
entitled to that. So how are unions supposed to talk to the
voters when the employers have the voters captive, essentially,
for captive audience meetings or throughout the workday and
talk to them all the time? There's just -- this is just a
matter of fairness.
Chairman Walberg. The gentleman's time has expired.
Now I recognize the gentleman from South Carolina, the
sponsor of H.R. 2775.
Mr. Wilson of South Carolina. Thank you, Mr. Chairman. And
thank you, Mr. Chairman, for your dedication and leadership for
meeting today and with our thoughts and prayers with
Congressman Steve Scalise, the U.S. Capitol Police, and then
staff members. And I particularly am thinking of different
offices, like the office of Tim and Sue Walberg, that their
office has been directly affected. And it's just so impressive
to have a chairman who will continue on important issues as we
work for the citizens of our country. God bless you. Thank you.
Ms. McKeague, in your experience, are union organizing
campaigns always started by employees or is it instead a result
of a union operative coming in from the outside? Can you
explain the process?
Ms. McKeague. No, they're not always started by employees,
but there has to be a receptive employee for the union to get a
foothold in the organization. So, you know, generally it's a
little bit of both. And my experience tends to come from a
receptive audience within our workforce. And it's generally
more successful when there's been a relationship between an
employee in one of our facilities and somebody from the union
which wants to become recognized in the workplace. That can
come about from a friendship or an existing relationship with
an employer where that employee used to work, but it generally
comes out of a collaborative working relationship or friendship
that they've had someplace else.
Mr. Wilson of South Carolina. I'm grateful. In my home
state of South Carolina we've recently had an organizing
campaign at the Boeing facility in North Charleston, South
Carolina, and it was really outside. And to the credit of the
workers, the results of the most recent vote was 73 percent not
to organize. And it was truly a credit of the workforce, a
credit to the personnel there, such a positive environment. And
we in South Carolina truly benefited. We now have nearly 9,000
people at that facility in North Charleston. And then the
ripple effect for suppliers. Throughout the district, I
represent perturbing for interior for the cable, and so we've
seen a very positive result just recently in my home state.
Ms. Cox, I want to thank you for being here today and
sharing your information. I share your concerns about employee
privacy. You and your father's experience with the threat made
by union representatives shouldn't happen to American workers
or their families. Yet there are numerous articles that cite
similar occurrences.
In a [Washington Times] article, Jennifer Parrish tells of
how a person came to her house uninvited and became
increasingly angry when she refused to sign his petition. The
petition he wanted her to sign was indeed a union authorization
card.
The ambush election rule that we're discussing today
requires employers to provide even more private information to
union representatives than before.
You mentioned your family has been contacted. How did the
union get that information? Given your experience, does
providing even more private information about the employee
increase the possibility of greater coercion or harassment from
paid union organizers?
Ms. Cox. I'm really not sure how they got my dad's -- even
his name, because we don't share the same last name, and I was
not living with my parents. I'm not sure -- he must have done
some research on me beyond my address and name.
Mr. Wilson of South Carolina. Well, again, thank you for
your courage for being here today.
Mr. Borden, thank you for your service. As a fellow
attorney, I particularly appreciate your insight. And as we
have legislation today, I appreciate your endorsement of the
Employee Privacy Protection Act. And can you give any other
reasons why this is so important?
Mr. Borden. I think that beyond the -- beyond just the
problems that the other witnesses have spoken to about turning
this personal contact information over is the manner in which
some regions of the Board have enforced these new requirements.
And what particularly comes to mind is a case coming out of the
Boston region, Danbury Hospital case, where despite the fact
that within this two-day timeframe the employer turned over
every voter name, every voter home address, what had been
required for 50 years, to the union, had turned over phone
numbers and/or email addresses for 94 percent to the bargaining
unit.
So that was far more than any union had gotten in any
election in 50 years from an employer. Because the Board
regional director found that they did not do an extensive
enough search of individual department lists and separate lists
that might be maintained, even perhaps by individual managers,
to see if there were any other available numbers or email
addresses available, he threw out the results of that election.
This enfranchised 390 people that voted against that union.
That is not a reasonable result within the framework of these
new rules.
Mr. Wilson of South Carolina. Well, thank you for your
background very much. Bye-bye.
Chairman Walberg. I thank the gentleman.
And now I recognize the sponsor of H.R. 2723, the chairman
of the Veterans' Affairs Committee and the gentleman from
Tennessee.
Mr. Roe. Thank you, Mr. Chairman.
I'm going to associate my remarks with Mr. Wilson in his
comments about what happened today. And I thank all of you all
for being here.
Mr. Calemine, I thank you for your years of service on the
minority.
I want to get a couple of things in the record, Mr.
Chairman. To start with, one, less than 10 percent of union
members ever voted for a union they currently represent. Number
two, since the ambush -- the so-called ambush election rule
came in, unions were winning, at that time, 68 percent of
representation case elections, contrary to what Mr. Calemine
said. And as fiscal year 2016, the first full year of the rule
when the elections were representation cases, it won 72
percent.
I know as an employer there's no way on this planet I could
get an attorney, a labor attorney in 10 or 11 or 12 days to
represent me. There would be no way I could educate myself. I
am completely disarmed. So I want to get that on the record.
Number three I would like to get on the record is that the
Railway Labor Act covers major airlines and rail employment has
the same absolute majority requirement in election for over 75
years, that's been going on. And to compare that to an election
we have, which is going to get me to the secret ballot
election, is that a Congressman can't deduct anything from your
paycheck. We can't force you to go on strike, and we can't have
you fired if you don't follow the rules. There's a big
difference.
Forty-four years ago, right now, I'm 11 miles south of the
demilitarized zone in Korea, serving in the United States Army.
I put on that uniform and left this country so that you could
have a secret ballot to elect me, the President, and the union
heads. And yet Ms. Cox can't get that if there's a card check.
She can't have the same protections.
And, Ms. Cox, I think that bothers me more than anything,
is that I think we need to have -- this country was founded on
the secret ballot. My wife tells me she voted for me. I don't
know that for a fact because it's a secret election, a secret
ballot. And I think that you as an employee ought to have
exactly the same right. And I cannot understand why anybody at
this dais would not insist that you have that right. While
somebody could check a card and then decide for you belong to
an organization, I don't get that.
And I want to ask you, and you spoke very eloquently about
this, decertification process that you personally went through.
But you took your own time, you traveled in the NLRB office.
And it appeared, all to no avail, two years later they threw
the ballots out. And do you believe that individual employees
are given a voice in the process as you describe in your
testimony or is NLRB more concerned with interest of unions and
employers instead of the employee?
Ms. Cox. I truly believe that the NLRB was very biased and
sided with the union. I mean, I don't know how -- the petition
that I filed that got us the election was filed before -- I'm
sorry -- after they scheduled the ratification. They were done
bargaining. So how can the NLRB tell me now that we didn't
deserve that election because they didn't have enough time to
bargain when they already were done?
Mr. Roe. So why do you think that was?
Ms. Cox. Why do I think --
Mr. Roe. Why do you think the NLRB ruled like they did?
Ms. Cox. I'm really not sure.
Mr. Roe. Do you think that was a fair ruling?
Ms. Cox. No, I don't think that's fair at all.
Mr. Calemine. I can answer.
Mr. Roe. I think another thing that's in the bill that I
have here is secret ballot votes for a strike. I grew up in a
union household. My father worked in the United Rubber Workers
union. And I remember the strikes we went on, that he had to go
on, where our family was deprived of income. Some of them went
as long as 3 months. I mean, I can still remember those. We
would go out and sand floors and do whatever we could to make a
living to feed our family. And eventually his company left the
country. And here's a 50-year-old, after World War II -- 50
years old, a high school education and no job. And so I've seen
where people have lost their job; not have higher wages but no
wages at all.
And, Ms. Cox, I think your testimony is incredibly
compelling to me, when you didn't want this, you weren't
afforded the rights that I think any employee ought to be
afforded.
Ms. Cox. Thank you.
Mr. Roe. Mr. Borden, do you have any comments on that?
Mr. Borden. I do not, other than to say that the Labor
Board does usually do a phenomenal job of trying to protect the
secrecy and the privacy of the ballots in those elections.
Mr. Roe. Why would they have thrown them away?
Mr. Borden. I think it's one of the things, frankly, that
the Labor Board does best.
Mr. Roe. I yield back, Mr. Chairman. Thank you.
Chairman Walberg. I thank the gentleman.
And now I recognize myself for five minutes of questioning.
Ms. McKeague, the ambush election rule is especially
difficult for smaller employees -- employers. Excuse me. Are
smaller employers particularly affected by the timetable of an
ambush rule?
Ms. McKeague. Yes, in my opinion, they are. Most small
employers don't have an HR staff, certainly not a professional
staff in most cases. And as was just noticed -- mentioned, they
certainly don't have a retained legal counsel that specializes
in labor law. And in order to hire outside counsel, even if you
were able to hire somebody in that first day or so, they have
to do a conflict check in order to take you as a client, that
of course means checking you against everybody else.
Chairman Walberg. How long would that take?
Ms. McKeague. A minimum of -- a minimum of 72 hours,
depending on the size of the firm.
Chairman Walberg. You're talking of seven days potentially
that you have, right, to get this accomplished? Taking out
those 72 hours?
Ms. McKeague. Yeah, taking out the 72 hours, because you
can't go over the facts of the case with them, the lawyer,
until you know that they don't have a conflict. So you're in a
holding pattern until they can get that conflict checked done.
So you've lost three days before you can even sit down with
outside counsel and go over it. So you can start to do some
background work within your place of business, but if you don't
have the internal expertise to do that, you're dead in the
water for three days before you can even start to get up and
running. So as the gentleman noticed, yeah, you are already
past your two day period.
Chairman Walberg. Even for the employer with best interests
to make sure that a fair disclosure is given out there and an
employee of his or her business understands very clearly it is
almost impossible, especially for the small employer, to do the
due diligence, to care for their employees, as well as their
own setting to keep the jobs.
Ms. McKeague. I would say for an employer of fewer than 50
employees, impossible. For an employer of 100 or fewer, still a
very close call.
Chairman Walberg. It's tough. Thank you.
Mr. Borden, the Obama NLRB sought to tilt the playing
field, as we discussed, under the guise of helping employees
like Ms. Cox in the direction of unions. In your experience,
when do employers become aware of union organizing drives?
Mr. Borden. I would say that there's been a -- that I've
seen a varied experience there, to be candid. I think there are
some employers, as Mr. Calemine suggests, that are aware ahead
of time, that have the heads-up. But just as much, I have seen
that more savvy union organizers make a concerted effort to
stay below ground for as long as they possibly can and to use
as much time, weeks, months, or years prior to filing a
petition, prior to alerting the employer to what's going on to
organize a group of employees that are going to drive the
organizing effort.
Chairman Walberg. And the ambush rule has made it even more
challenging?
Mr. Borden. Well, it's made it more challenging in the
sense that, regardless of how much time ahead of the filing of
the petition the union has been working quietly, the amount of
time that the employer has after the filing of that petition
has been significantly reduced.
Chairman Walberg. Ms. Cox, thank you for sharing firsthand
experience that you've gone through, you've walked through and
had a memorable, to say the least, testimony to share for this
committee today. It's the most important perspective, I
believe, to consider, how it actually works in relationship
with the employee.
In your experience, are the interests of employees and
interests of unions always the same?
Ms. Cox. I'm not sure what you mean.
Chairman Walberg. Looking at how this came about in your
life, was the interest of the employee and the interest of the
employer the same, and especially in its impact upon you?
Ms. Cox. The interest of -- like my interest as an employee
compared to my employer?
Chairman Walberg. Employer, correct.
Ms. Cox. I believe there's a difference, for sure. I mean,
with the employer, it's a business thing.
Chairman Walberg. Would it be safer to say -- I didn't want
to make a trick question out of that. But would it be safer to
say that the interest of employers, employees, and unions are
all different?
Ms. Cox. Yes.
Chairman Walberg. And so all ought to be considered?
Ms. Cox. Yes.
Chairman Walberg. In a timely fashion.
Ms. Cox. I agree.
Chairman Walberg. Hopefully brings about the best results.
Ms. Cox. Yes.
Chairman Walberg. I see my time has expired. I appreciate
the answers. I appreciate the witnesses and the chance to
respond to questions, but we've come to the end of the hearing.
This is, as was mentioned earlier, an appreciation for
regular order. This is what we wanted to do. We want the
subcommittee to work and address it first. I'm sure there will
be other discussions that go on. I know that's the interest of
the chairman of this full committee on Education and Workforce,
to make sure that we deal with a very timely and important
issue, relative to employers, employees, and unions in a way
that isn't just a pass of the hand, but we look at it and hear
testimony.
And so now I would turn and ask the ranking member if you
have any closing remarks to make.
Mr. Sablan. Yes, Mr. Chairman. And I want to thank the
witnesses again for their testimony.
As I noted at the outset, the right to collective
bargaining is to keep ensuring a fair economy. Numerous studies
show that income inequality has skyrocketed as union density
has dropped. Today, private sector union members have just a
little over 6 percent, and the legislation before us today is
aimed at the extinction of private sector unions as we know
them. Today, we have learned that the three bills under
discussion are designed to sabotage any notion of a fair union
election process.
H.R. 2723, the so-called Employee Rights Act, rigged union
elections by counting every eligible employee who did not vote
as having voted no against union representation.
H.R. 27 -- and if I may note at this time, and with huge --
I have huge respect for the distinguished gentleman and my
chairman of the Veterans' Affairs Committee, the gentleman from
Tennessee. I think he maybe has incorrectly claimed that the
labor -- Railway Labor Act currently uses the ERA's rule,
making nonvoters vote against the union. I think the rule was
amended in 2010 to require a bare majority of votes and not
voters, like he stated.
H.R. 2775, the so-called voter Democracy and Fairness Act,
prohibits unions from having the same access to employees'
contact information as the employer during the election
process, thus preventing employees from being informed about
union representation. And as one of the witnesses stated, that
although she didn't fill the form, she thought, and many
employees thought, that filling out the form, and which is
written in both English and Spanish, was to provide
information. But it actually hereby also says that, I hereby
accept membership in the above-named union of my own free will,
and hereby authorize it to act for me as a collective
bargaining agency in all matters pertaining to wages, hours,
and conditions of employment. And this is a union of the
Retail, Wholesale, and Department Store Union, district
council, UFCW.
And I'd like to insert this for the record, if I may, Mr.
Chairman.
Chairman Walberg. Without objection, and hearing none, it
will be inserted.
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Mr. Sablan. And H.R. 2776, the so-called Employee Privacy
Protection Act, mandates arbitrary waiting periods that delay
elections and empower employers to gerrymander the voting
composition of bargaining unions by adding employees who have
expressed no interest in joining the union. So instead of
relentlessly attacking voters' rights and retaliating against
employees who want a union, the committee should be focusing on
efforts to strengthen workers' rights to organize, raise the
minimum wage, and provide paid sick days.
I'd like to ask also unanimous consent, Mr. Chairman, to
insert for the record a letter from the United Food and
Commercial Workers Union, and the Retail, Wholesale, and
Department Store Union District Council. If no objection, Mr.
Chairman?
Chairman Walberg. Without objection, it will be inserted.
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Mr. Sablan. I would also like to ask unanimous consent that
the graph used by Congressman Norcross be inserted in the
record.
Chairman Walberg. Without objection, it will be inserted.
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Mr. Sablan. I also would like to ask unanimous consent that
a press release from the New Illinois Members at Americold Win
First Contract. I would like a letter from -- a press statement
from RWDSU, the union, which won a five-year collective
bargaining agreement of Americold in Illinois, because that
document explains the union won better pay, scheduling,
improvements, and a better -- and a stronger grievance process.
And these gains would not have been possible had her coworkers
followed the lead of Ms. Cox and the National Right To Work
Committee and decertified.
Chairman Walberg. Hearing no objection, that will be
inserted as well.
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Mr. Sablan. And finally, I would like to enter for the
record -- I ask unanimous consent to enter for the record a
letter from Mary Kay Henry on behalf of the 2 million members
of SEIU opposing the three bills before us today. She notes
these bills will lead to complete subversion of their
elections.
Chairman Walberg. Hearing no objection, that will be
inserted.
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Mr. Sablan. And, Mr. Chairman, despite that we may have
disagreements, again, I am very grateful that you're following
over regular order.
I want to thank witnesses; we may have disagreements, but I
think those disagreements are honest, and I respect that you
took the time to prepare and come today. I apologize for the
delay, it was unavoidable.
And I yield the balance of my time.
Chairman Walberg. I thank the gentleman.
And I too want to thank the witnesses. You've added value
to our discussions, and we know where to find you if we need
any further information as well on either side of the issue.
Let me just state very clearly for the record that this is
not an attempt to eliminate unions, not at all. And sometimes
it's classified as an either/or. That isn't the case.
From my own experience, and subsequent to my time working
at U.S. Steel South Works number two electric furnace, right
down on the borders of Lake Michigan, unions have had some
extremely positive impacts. And going back to the steel mills
now and seeing the difference in some of the working conditions
that I just took for granted, I'm, frankly, worried about it.
It's changed.
And there has been positive impact, I know, as a result of
union efforts for their workers. But seeing the graph that was
brought by Mr. Norcross earlier on, I would contend that
there's also a rationale there that says that unions and the
impact, the positive impact they've had, may indeed have had an
interesting impact of workers seeing them work themselves out
of their job. The benefits that have been achieved, and now
saying, tell you what, like Ms. Cox, I would at least like to
know how it's going to be better for me than what I have right
now. And if indeed that justifies the union dues that will be
taken out and also how those dues will be used relative to
political efforts, et cetera.
And I think that's what the three bills we're looking at
today are going toward in saying let them make their choices
with the fullest information possible, as fairly as possible
from both sides, not rushed, not jammed through. And the people
that are truly interested are the ones who will make the
decisions on what comes forward. That's all we're asking.
And this indeed is regular order in the process of
discussion. So we'll continue it on, we'll see where it takes
us from here. The bottom line, we want to make sure that
everything we do here promotes more safer, more secure and
increased number of opportunities of choice for employees to
have with employers as well. And so we'll continue looking at
this. I want to again say thank you.
With no further issues to come before the subcommittee
today, I call this meeting adjourned.
[Additional submissions by Chairman Walberg follow:]
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[Whereupon, at 2:48 p.m., the subcommittee was adjourned.]