[House Report 113-583]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-583
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EMPLOYEE PRIVACY PROTECTION ACT
_______
September 9, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Kline, from the Committee on Education and the Workforce, submitted
the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 4321]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 4321) to amend the National Labor
Relations Act to require that lists of employees eligible to
vote in organizing elections be provided to the National Labor
Relations Board, having considered the same, report favorably
thereon with an amendment and recommend that the bill as
amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Employee Privacy Protection Act''.
SEC. 2. LISTS OF EMPLOYEES ELIGIBLE TO VOTE IN ELECTIONS.
Section 9(c)(1) of the National Labor Relations Act (29 U.S.C.
159(c)(1)) is amended by adding at the end the following: ``Not earlier
than 7 days after a final determination by the Board of the appropriate
bargaining unit, the Board shall acquire from the employer a list of
all employees eligible to vote in the election to be made available to
all parties, which shall include the names of the employees, and not
more than one additional form of personal contact information of the
employee, (such as telephone number, email address, or mailing address)
chosen by the employee in writing.''.
COMMITTEE REPORT
Purpose
H.R. 4321, the Employee Privacy Protection Act, protects
employee privacy, modernizes the voter eligibility list, and
empowers workers while ensuring unions can continue to
communicate with employees. The bill ensures labor
organizations will continue to receive a list of eligible
voters within seven days of an election agreement or direction
of an election. However, rather than providing each employee's
home address, the bill modernizes the process by providing
employees the right to choose how they wish to be contacted by
the union. Under the Employee Privacy Protection Act, employees
ultimately will choose what personal information, such as phone
number, e-mail address, or home address, is provided to the
union.
Committee Action
112TH CONGRESS
Full Committee Hearing Investigates NLRB's Unprecedented Rulemaking
On July 7, 2011, the Committee on Education and the
Workforce held a hearing entitled ``Rushing Union Elections:
Protecting the Interests of Big Labor at the Expense of Workers
Free Choice,'' on the National Labor Relations Board's (NLRB)
June 22, 2011, proposed election procedure regulation. The
proposal expanded the information included on the Excelsior
list and reduced the time for production. Witnesses before the
committee agreed the cumulative changes of the proposal would
significantly hinder an employer's ability to communicate with
his or her employees and cripple an employee's right to choose
whether to be represented by a labor organization. Witnesses
before the panel were The Honorable Peter C. Schaumber, Former
NLRB Chairman, Washington, D.C.; Mr. Larry Getts, Tube Press
Technician, Dana Corporation, Garrett, Indiana; Mr. John Carew,
President, Carew Concrete & Supply Company, Appleton,
Wisconsin, representing himself and the National Ready Mixed
Concrete Association; Mr. Michael J. Lotito, Attorney, Jackson
Lewis LLP, San Francisco, California; and Mr. Kenneth Dau-
Schmidt, Professor, Indiana University, Maurer School of Law,
Bloomington, Indiana.
Full Committee Hearing Explores NLRB 's Decision to Disfranchise
Employees in Union Elections
On September 22, 2011, the Committee on Education and the
Workforce held a hearing on the ``Culture of Union Favoritism:
Recent Actions of the National Labor Relations Board.'' At the
end of August 2011, the NLRB issued a number of biased anti-
worker decisions, including Specialty Healthcare and
Rehabilitation Center of Mobile (Specialty Healthcare),\1\
Lamons Gasket Company,\2\ and UGL-UNICCO Service Company.\3\
Additionally, the NLRB finalized a rule requiring almost every
employer to post a vague, union-biased notice on employee
National Labor Relations Act (NLRA) rights. The NLRB's
unbridled overreach of authority demanded a complete
examination by the committee. Witnesses before the committee
included Mr. Curtis L. Mack, Partner, McGuire Woods LLP,
Atlanta, Georgia; Ms. Barbara A. Ivey, Employee, Kaiser
Permanente, Keizer, Oregon; Mr. Arthur J. Martin, Partner,
Schuchat, Cook & Werner, St. Louis, Missouri; and Mr. G. Roger
King, Partner, Jones Day, Columbus, Ohio.
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\1\357 NLRB No. 83 (2011).
\2\357 NLRB No. 72 (2011).
\3\357 NLRB No. 76 (2011).
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H.R. 3094, Workforce Democracy and Fairness Act, Introduced
On October 5, 2011, Chairman John Kline (R-MN) introduced
H.R. 3094, the Workforce Democracy and Fairness Act with 26
cosponsors. Recognizing the NLRB had moved far beyond an
adjudicative body designed to implement congressional intent
under the NLRA, the legislation sought to (1) reinstate the
traditional standard for determining which employees comprise
an appropriate bargaining unit; (2) ensure employers can
participate in a fair union election; (3) guarantee workers
have the ability to make a fully informed decision in a union
election; and (4) safeguard employee privacy by allowing
workers to decide the type of personal information provided to
a union.
Legislative Hearing Considers Bill in Statutory Context
On October 12, 2011, the Committee on Education and the
Workforce held a legislative hearing on H.R. 3094, the
Workforce Democracy and Fairness Act. Witnesses included The
Honorable Charles Cohen, Senior Counsel, Morgan, Lewis and
Bockius LLP, and Former Member, National Labor Relations Board,
Washington, D.C.; Mr. Robert Sullivan, President, RG Sullivan
Consulting, Westmoreland, New Hampshire, representing the
Retail Industry Leaders Association; Mr. Michael J. Hunter,
Partner, Hunter, Carnahan, Shoub, Byard and Harshman, Columbus,
Ohio; and Mr. Phillip Russell, Attorney, Ogletree Deakins,
Tampa, Florida. Witnesses testified the NLRB had overturned
decades of precedent to facilitate union organizing at the cost
of employee free choice and employer free speech.
Committee Passes H.R. 3094, the Workforce Democracy and Fairness Act
On October 26, 2011, the Committee on Education and the
Workforce considered H.R. 3094, the Workforce Democracy and
Fairness Act. Chairman Kline offered an amendment in the nature
of a substitute to clarify that years of labor policies
affecting the acute health care industry remain in place; to
limit pre-election issues to those that are relevant and
material; and to reaffirm the Board's responsibility to grant
or deny requests for review of regional directors' decisions
before the election. Nine additional amendments were offered
and debated; however, no additional amendments were adopted.
The committee favorably reported H.R. 3094 to the House of
Representatives by a vote of 23-16.
House Passes H.R. 3094, the Workforce Democracy and Fairness Act
On November 30, 2011, the House of Representatives
considered H.R. 3094, the Workforce Democracy and Fairness Act.
Four amendments and an amendment in the nature of a substitute
were offered, but none were adopted. The House passed H.R. 3094
by a bipartisan vote of 235-188. The bill was not considered by
the Senate prior to the conclusion of the 112th Congress.
113TH CONGRESS
Subcommittee Hearing Examines Union Organizing
On September 19, 2013, the Subcommittee on Health,
Employment, Labor, and Pensions held a hearing examining ``The
Future of Union Organizing.'' The hearing examined the
application of Specialty Healthcare and the future of NLRB
representational elections. Witnesses were Mr. David R. Burton,
General Counsel, National Small Business Association,
Washington, D.C.; Mr. Clarence Adams, Field Technician,
Cablevision, Brooklyn, New York; Mr. Ronald Meisburg, Member of
the Firm, Proskauer, Washington, D.C.; and Mr. Stefan J.
Marculewicz, Shareholder, Littler Mendelson, Washington, D.C.
Full Committee Hearing Scrutinizes the NLRB's Proposed Ambush Election
Rule
On March 5, 2014, the Committee on Education and the
Workforce held a hearing entitled ``Culture of Union
Favoritism: The Return of the NLRB's Ambush Election Rule.''
The witnesses stated the February 6, 2014, proposed ambush
election rule, like its predecessor, would considerably shorten
the time between the filing of the petition and the election
date as well as substantially limit the opportunity for a full
evidentiary hearing or NLRB resolution of contested issues,
including appropriate bargaining unit, voter eligibility, and
election misconduct. Ms. Doreen S. Davis, Partner, Jones Day,
New York, New York; Mr. Steve Browne, Vice President of Human
Resources, LaRosa, Cincinnati, Ohio; Ms. Caren P. Sencer,
Shareholder, Weinberg, Roger & Rosenfeld P.C., Alameda,
California; and Mr. William Messenger, Staff Attorney, National
Right to Work Legal Defense Foundation, Inc., Springfield,
Virginia, testified before the committee.
H.R. 4321, Employee Privacy Protection Act, Introduced
On March 27, 2014, Congressman Phil Roe (R-TN) introduced
the Excelsior list provision of H.R. 3094 of the 112th
Congress, the Workforce Democracy and Fairness Act, as a
standalone bill, H.R. 4321, the Employee Privacy Protection
Act, with 20 cosponsors. With the NLRB's ambush election rule
undermining employee privacy, the legislation is necessary to
ensure employees can choose what personal information is
provided to a union.
Committee Passes H.R. 4321, the Employee Privacy Protection Act
On April 9, 2014, the Committee on Education and the
Workforce considered H.R. 4321, the Employee Privacy Protection
Act. Congressman Roe offered an amendment in the nature of a
substitute, making a technical change to clarify that employees
only have to provide one form of personal contact information.
Two additional amendments were offered and debated but they
were not adopted. The committee favorably reported H.R. 4321 to
the House of Representatives by a vote of 21-17.
Summary
The Employee Privacy Protection Act, H.R. 4321, ensures
labor organizations will continue to receive a list of eligible
voters within seven days of an election agreement or direction
of election. The bill modernizes the process while providing
employees the right to choose how they wish to be contacted by
the union.
Committee Views
In 1935, Congress passed the National Labor Relations Act
(NLRA), guaranteeing the right of most private sector
employees\4\ to organize and select their own representative.
In 1947, Congress passed the most significant amendment of the
NLRA, the Taft-Hartley Act,\5\ abandoning ``the policy of
affirmatively encouraging the spread of collective bargaining .
. . [and] striking a new balance between protection of the
right to self-organization and various opposing claims.''\6\
The Taft-Hartley Act clarified that employees have the right to
refrain from participating in union activity,\7\ created new
union unfair labor practices,\8\ codified employer free
speech,\9\ and made changes to the determination of bargaining
units.\10\
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\4\The NLRA does not cover all employees and employers in the
United States. For example, public sector employers (state, local, and
federal employees), employers covered by the Railway Labor Act
(airlines and railroads), agricultural labor, and supervisors are not
covered by the act. 29 USC Sec. 152(2).
\5\29 U.S.C. 141 et seq.
\6\Archibald Cox, Some Aspects of the Labor Management Relations
Act of 1974, 61 Harv. L. Rev. 1, 4 (1947).
\7\29 U.S.C. Sec. 157.
\8\Id. Sec. 158.
\9\Id. Sec. 158(c).
\10\Id Sec. 159(d).
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The NLRA established the NLRB, an independent federal
agency, to fulfill two principal functions: (1) to prevent and
remedy employer and union unlawful acts (called unfair labor
practices or ULPs), and (2) to determine by secret ballot
election whether employees wish to be represented by a union.
In determining whether employees wish to be represented by a
union, the NLRA is wholly neutra1.\11\
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\11\NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973).
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To promote free and informed choice in union elections, in
1966 in Excelsior Underwear Inc., the NLRB created a
requirement that employers must provide a list of all eligible
voters and their home address to the union(s) seeking
representation prior to the election.\12\ This list is commonly
referred to as the Excelsior list. Currently, within seven days
of the regional director's pre-election decision or approval of
the election agreement, the employer must file the Excelsior
list with the regional director.\13\ The regional director
makes the list available to all parties. Unless waived, the
non-employer parties, most commonly the union(s) seeking
representation, must have at least 10 days to review the list
prior to the election.\14\ Under this procedure, unions won
almost two-thirds of representational elections in calendar
year 2013.\15\
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\12\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
\13\National Labor Relations NLRB Casehandling Manualpara.11312
\14\Id.
\15\NLRB Graphs & Data Representation Petitions, available at
http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/
representation-petitions-rc (last visited on Aug. 13, 2014).
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On February 6, 2014, the NLRB issued a proposed rulemaking
that largely mirrors the June 2011 proposed rulemaking on
election procedures. Like its predecessor, the February 6,
2014, proposed rule contemplates adding additional information
to the Excelsior list and cutting the timeframe for its
production.\16\ In addition to employee names and addresses,
the employer must provide unit employees' phone numbers, email
addresses, work locations, shift information, and job
classifications.\17\ Absent extraordinary circumstances or
party agreement, this information must be provided to the union
within two days of the regional director's decision or approval
of the election agreement.\18\
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\16\Notice of Proposed Rulemaking, Representation--Case Procedures,
79 Fed. Reg. 7318, 7360 (Feb. 6, 2014).
\17\Id.
\18\Id.
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Privacy Implications of an Expanded Excelsior List
The inclusion of employee phone numbers and email addresses
on the Excelsior list will further encroach on employee
privacy. Moreover, providing unions with employees' phone
numbers, email addresses, and home addresses puts employees and
their families at greater risk of coercion and intimidation. A
2007 report by the Heritage Foundation stated ``[t]housands of
unfair labor practice cases have been filed against unions
since 2000, including 1,417 for coercive statements, 416 for
violence and assaults, 546 for harassment, and 1,325 for
threatening statements.''\19\
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\19\Sherk, James, The Truth About Improper Firings and Union
Intimidation, The Heritage Foundation (June 20, 2007) (available at
http://www.heritage.org/research/reports/2007/03/the-truth-about-
improper-firings-and-union-intimidation#_ftn9).
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Employees clearly face significant and at times unlawful
union pressure.\20\ However, union communications need not be
unfair labor practices or criminal acts to be unwelcome. In
testimony before the committee, Marlene Felter, a medical
records coder at Chapman Medical Center in Orange, California,
and Larry Getts, a Dana Corporation employee in Fort Wayne,
Indiana, described their negative and unwelcome experiences
with union organizers.
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\20\Sherk, James, The Truth About Improper Firings and Union
Intimidation, The Heritage Foundation (June 20, 2007) (available at
http://www.heritage.org/research/reorts/2007/03/the-truth-about-
improper-firings-and-union-intimidation#_ftn9).
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Ms. Felter stated:
From July to November 2011, my co-workers reported that
[Service Employees International Union] operatives were
calling them on their cell phones, coming to their
homes, stalking them, harassing them, and even offering
to buy them meals at restaurants to convince them to
sign union cards.\21\
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\21\Legislative Hearing on H.R. 2346, Secret Ballot Protection Act,
and H.R. 2347, Representation Fairness Restoration Act, Hearing before
the House Health, Employment, Labor, and Pensions Subcommittee, 113th
Cong., 1st Sess. at 2 (2013) (written testimony of Marlene Felter)
[hereinafter Felter Testimony].
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Mr. Getts stated:
On a daily basis[,] my coworkers and I would find UAW
officials waiting in our break room. They'd approach us
during our lunch breaks. They would even follow us to
our vehicles at the end of the day and some of us even
to our homes.\22\
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\22\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 2 (2011)
(written testimony of Larry Getts)[hereinafter Getts Testimony].
Not surprisingly, Mr. Getts stated he would object to his
employer providing his phone number and email address to a
union.\23\
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\23\Getts Testimony at 2-3.
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In a recent Washington Times article, Jennifer Parrish
described her alarming experience with a Service Employees
International Union organizer:
My story starts in the spring of 2006, when a man I'd
never met walked into my Minnesota home and asked for
my signature on what he claimed was a petition asking
the state for health insurance for child care providers
like myself (sic). As it happened, I already had health
insurance, and I didn't feel it was the state's
responsibility to provide it to me.
I repeatedly declined to sign his petition, but this
wasn't enough. The gentleman grew angry, and his
demands became louder and more insistent. His behavior
was alarming, to get him to leave, I promised to sign
his card later if he would return after I had time to
look it over.\24\
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\24\Parrish, Jennifer, A breath of employee freedom, The Washington
Times (Aug. 7, 2014)(available at http://www.washingtontimes.com/news/
2014/aug/7/parrish-a-breath-of-employees-freedom/).
Of equal concern are alleged union misuses of personal
employee information outside an organizing campaign. In fall
2007, 33 AT&T employees at the company's Burlington, North
Carolina, facility resigned from Communication Workers of
America (CWA) membership and ceased paying union dues.\25\ In
apparent retaliation, the CWA Local posted the 33 AT&T
employees' names and social security numbers on a publicly
accessible bulletin board located in a hallway close to the
building entrance stating the employees had resigned from the
union and ceased paying dues.\26\
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\25\AT&T Workers Petition U.S. Supreme Court to Overturn Union
Exemption for Identity Theft Laws, National Right to Work Legal Defense
Foundation, Inc. (July 19, 2012)(available at http://www.nrtw.org/en/
press/2012/07/fisher-supreme-court-appeal-07192012).
\26\Id.
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In 2009, Patricia Pelletier, an employee of the Connecticut
Student Loan Foundation, circulated a petition to decertify the
CWA.\27\ She and her coworkers ultimately voted to decertify
the union.\28\ ``CWA operatives responded by allegedly forging
Pelletier's signature on numerous magazine subscriptions and
consumer product solicitations.''\29\ As a result,
``Pelletier's home was then flooded with hundreds of unwanted
magazines and advertisements. Not only was Pelletier forced to
spend several hours each day canceling individual
subscriptions, she was also billed for thousands of dollars by
unwitting magazine companies, jeopardizing her credit
rating.''\30\ Ultimately, Pelletier filed a lawsuit against the
union that was settled, but ``her name continued to be
circulated through advertiser mailing lists across the
country.''\31\
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\27\Union Settles Lawsuit Alleging Identity Theft in Retaliation
Campaign against Independent Worker, National Right to Work Legal
Defense Foundation, Inc. (May 9, 2009)(available at http://
www.nrtw.org/en/press/2009/05/union-settles-lawsuit-alleging-ident).
\28\Id.
\29\Id.
\30\Id.
\31\Id.
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As these examples illustrate, employees face unwelcome,
even unlawful, union coercion and intimidation, as well as
union misuse of their personally identifiable information.
Providing additional private personal information to unions
will only increase these incidents.
Legislation Is Needed to Address This Unnecessary Encroachment on
Employee Privacy
The Employee Privacy Protection Act will address the
shortcomings of the NLRB's February 6, 2014, proposed changes
to union election procedures by modernizing the Excelsior list
while protecting employee privacy by empowering workers. Seven
days after the regional director's pre-election decision or
approval of the election agreement, employers will be required
to provide a list of eligible employees. The list shall include
employee names and one additional piece of personal contact
information. The additional piece of information, such as a
personal phone number, an email address, or a home address,
will be chosen in writing by employees, thereby ensuring
effective union communication and modernizing the Excelsior
list while protecting employee privacy by allowing employees to
choose how to be contacted by the union.
Privacy Protection
Congress has acted repeatedly to protect personally
identifiable information, extending privacy protections to
credit, electronic communications, education, bank accounts,
cable, video, motor vehicle, health, telecommunications
subscriber, children's online information, and financial
information. The following are examples of federal laws that
include protections for personally identifiable
information:\32\
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\32\E-mail from Gina Stevens, Congressional Research Service
American Law Division, to Marvin Kaplan, Workforce Policy Counsel,
House Education and the Workforce Committee (Aug. 12, 2014, 11:08 EST)
(on file with author).
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The Fair Credit Reporting Act of 1970 (FCRA) sets
forth rights for individuals and responsibilities for consumer
``credit reporting agencies'' in connection with the
preparation and dissemination of personal information in a
consumer report. Under the FCRA, consumer reporting agencies
are prohibited from disclosing consumer reports to anyone who
does not have a permissible purpose.
The Family Educational Rights and Privacy Act of
1974 governs access to and disclosure of educational records to
parents, students, and third parties.
The Right to Financial Privacy Act of 1978
restricts the ability of the federal government to obtain bank
records from financial institutions and sets forth procedures
for the federal government's access to bank customer records.
The Cable Communications Policy Act of 1984 limits
the disclosure of cable television subscriber names, addresses,
and utilization information for mail solicitation purposes.
The Video Privacy Protection Act of 1988 regulates
the treatment of personal information collected in connection
with video sales and rentals.
The Driver's Privacy Protection Act of 1994
regulates the use and disclosure of personal information from
state motor vehicle records.
The Health Insurance Portability and
Accountability Act of 1996 set a deadline of August 1999 for
congressional action on privacy legislation for electronically
transmitted health information and required the secretary of
Health and Human Services to issue final privacy regulations by
February 2000 in the absence of congressional action.
The Communications Act of 1934, as amended by the
Telecommunications Act of 1996, limits the use and disclosure
of customer proprietary network information by
telecommunications service providers and provides a right of
access for individuals.
The Children's Online Privacy Protection Act of
1998 requires parental consent to collect a child's age or
address and requires sites collecting information from children
to disclose how they plan to use the data.
The Gramm-Leach-Bliley Act of 1999 requires
financial institutions to disclose their privacy policies to
their customers. Customers may opt out of sharing personal
information, and the institutions may not share account numbers
with non-affiliated telemarketers and direct marketers.
The Do Not Call Registry, authorized by the bipartisan
Telemarketing and Consumer Fraud and Abuse Prevention Act,
provides insight into American sentiment on this issue. The Do
Not Call Registry gives Americans the opportunity to limit the
telemarketing calls they receive.\33\ Once registered on the Do
Not Call Registry, covered telemarketers must cease calling the
registered number within 31 days.\34\ According to the Federal
Trade Commission, at the end of fiscal year 2012, the Do Not
Call Registry contained 217,568,135 actively registered phone
numbers.\35\ In 2013, the U.S. population was approximately 316
million.\36\ Clearly, the vast majority of Americans would
object to having an employer provide their personal information
to any third party.
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\33\National Do Not Call Registry, Federal Trade Commission,
available at http://www .consumer.ftc.gov, articles/0108-national-do-
not-call-registry (last visited on Aug. 13, 2014).
\34\Id.
\35\FTC Issues FY 2012 National Do Not Call Registry Data Book,
Federal Trade Commission, available at http://www.ftc.gov/news-events/
press-releases/2012/10/ftc-issues-fy-/-2012-
national-do-not-call-registry-data-book (last visited on Aug. 13,
2014).
\36\USA QuickFacts, United States Census Bureau, available at
http://quickfacts.census.gov/efd/states/00000.html (last visited on
Aug. 13, 2014).
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Representative John Dingell (D-MI), the longest serving
member of Congress, stated during debate on the Do-Not-Call
Implementation Act that the ``national do-not-call registry
will allow consumers to limit . . . unwanted intrusions and
once again answer their telephones without aggravation.''\37\
Like the Do Not Call Registry, the Employee Privacy Protection
Act will limit unwanted intrusions. However, recognizing the
importance of a free and informed choice in union elections,
the Employee Privacy Protection Act does not forbid employers
from providing employee information to a union. Instead, the
Employee Privacy Protection Act modernizes the Excelsior list
and allows employees to choose what personal information is
provided to the union.
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\37\Do-Not-CallImplementationAct,capitolwords, available at http://
capitolwords.org/date/2003/02/12/H407-3_do-not-call-implemenation-act/
(last visited on Aug. 15, 2014).
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Modernize Union Communication
Under current rules, labor organizations have multiple
avenues through which they may contact employees to encourage
support for the union. In general, employees may solicit
support in the workplace during non-work time, including breaks
and lunch.\38\ Given unions win almost two-thirds of
representational elections, having employee phone numbers and
email addresses is not essential to secure employee support.
However, the Employee Privacy Protection Act recognizes the
Excelsior list promotes free and informed choice but is
outdated. As such, the Employee Privacy Protection Act codifies
a modernized Excelsior list that protects employee privacy and
choice.
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\38\Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
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The ways individuals communicate has changed significantly
since 1966 when the NLRB created the Excelsior list. At the
time, traditional mail was probably one of the most widely used
forms of communication.\39\ However, the use of traditional
mail has declined significantly. From 2006 to 2012, single-
piece First-Class Mail volume dropped by almost 19 billion
pieces.\40\ In contrast, the use of email and cellular phones
has risen significantly. eMarketer projected there would be
over 216 million U.S. email users in 2013, approximately two
out three people in the U.S.\41\ According to Pew Research, as
of January 2014, 90 percent of American adults have a cell
phone.\42\ The Employee Privacy Protection Act modernizes the
Excelsior list to allow employees to provide a personal email
address or phone number in lieu of a home address. However, to
ensure employee privacy and choice, the Employee Privacy
Protection Act leaves it to the individual employee to choose
which piece of personal information is provided to the union.
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\39\Excelsior Underwear Inc., 156 NLRB 1236 (1966).
\40\U.S. Postal Service Mail Processing Network Exceeds What is
Needed for Declining Mail Volume, United States Government
Accountability Office (April 2012) (available at http://www.gao.gov/
assets/600/590081.pdf).
\41\EMAIL USAGE, Powerprodirect, available at http://
www.powerprodirect.com/statistics (last visited on Aug. 13, 2014).
\42\Mobile Technology Fact Sheet, Pew Research Internet Project,
available at http://www.pewinternet.org/factsheets/mobile-technology-
fact-sheet/ (last visited on Aug. 13, 2014).
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Conclusion
Over the last several years, the NLRB has issued multiple
decisions and rules intended to unbalance labor relations to
benefit organized labor. The most significant of these recent
actions was the NLRB's February 6, 2014, re-proposed rulemaking
regarding election procedures.\43\ The proposed changes to the
Excelsior list unnecessarily infringe on employee privacy. The
Employee Privacy Protection Act protects employee privacy by
providing employees with the power to choose what personal
contact information is provided to the union.
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\43\Notice of Proposed Rulemaking, Representation--Case Procedures,
79 Fed. Reg. 7318 (Feb. 6, 2014).
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Section-by-Section Analysis
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute offered by Congressman
Roe and reported favorably by the committee.
Section 1. Provides that the short title is the ``Employee
Privacy Protection Act.''
Section 2. Amends the National Labor Relations Act to
preempt the NLRB's February 6, 2014, proposed changes to
representational election procedures by establishing the
composition of and timetable upon which the employer must
provide a list of eligible voters. Seven days after the final
determination by the NLRB of the appropriate bargaining unit,
the NLRB shall acquire the list of eligible employees from the
employer and make it available to all parties. The list shall
include the employee names and one additional form of personal
employee contact information, such as telephone number, email
address, or mailing address, chosen by the employee in writing.
Explanation of Amendments
The amendments, including the amendment in the nature of a
substitute, are explained in the body of this report.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. H.R. 4321 protects employee privacy, modernizes the
voter eligibility list, and empowers workers while ensuring
unions can continue to communicate with employees.
Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
Earmark Statement
H.R. 4321 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of House Rule XXI.
Roll Call Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee Report to include for
each record vote on a motion to report the measure or matter
and on any amendments offered to the measure or matter the
total number of votes for and against and the names of the
Members voting for and against.
Statement of General Performance Goals and Objectives
In accordance with clause (3)(c) of House Rule XIII, the
goals of H.R. 4321 are to protect employee privacy, modernize
the voter eligibility list, and empower workers while ensuring
unions can continue to communicate with employees.
Duplication of Federal Programs
No provision of H.R. 4321 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The committee estimates that enacting H.R. 4321 does not
specifically direct the completion of any specific rule makings
within the meaning of 5 U.S.C. 551.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the committee's oversight findings and recommendations are
reflected in the body of this report.
New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause 3(c)(3) of rule XIII of the Rules of
the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the committee has received
the following estimate for H.R. 4321 from the Director of the
Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 16, 2014.
Hon. John Kline,
Chairman, Committee on Education and the Workforce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4321, the Employee
Privacy Protection Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely,
Robert A. Sunshine
(For Douglas W. Elmendorf, Director).
Enclosure.
H.R. 4321--Employee Privacy Protection Act
H.R. 4321 would amend the National Labor Relations Act to
require the National Labor Relations Board to wait at least
seven days after the board has issued its final determination
on the petition for collective bargaining representation before
obtaining from an employer a list of employees who are eligible
to vote in an election for such representation. That list could
include not more than one form of personal contact information,
chosen by the employee in writing. CBO estimates that enacting
H.R. 4321 would not affect the federal budget.
Enacting H.R. 4321 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
The bill contains no intergovernmental mandates as defined
in the Unfunded Mandates Reform Act (UMRA) and would not affect
the budgets of state, local, or tribal governments.
The bill would impose a private-sector mandate as defined
in UMRA by requiring employers to obtain, in writing, their
employees' preferred method of being contacted by union
representatives. The bill would allow employees to choose what
type of personal contact information (telephone number, email
address, or mailing address) to share with union organizers
seeking to establish a union in their workplace. Because
complying with the mandate would be a small change relative to
current requirements, CBO expects that the cost of the mandate
would fall below the annual threshold established in UMRA for
private-sector mandates ($152 million, in 2014, adjusted
annually for inflation).
The CBO staff contacts for this estimate are Christina
Hawley Anthony (for federal costs) and Chung Hyun Kim (for the
private-sector effects). This estimate was approved by Peter H.
Fontaine, Assistant Director for Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 4321.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
NATIONAL LABOR RELATIONS ACT
* * * * * * *
representatives and elections
Sec. 9. (a) * * *
* * * * * * *
(c)(1) Whenever a petition shall have been filed, in
accordance with such regulations as may be prescribed by the
Board--
(A) * * *
* * * * * * *
the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate
hearing upon due notice. Such hearing may be conducted by an
officer or employee of the regional office, who shall not make
any recommendations with respect thereto. If the Board finds
upon the record of such hearing that such a question of
representation exists, it shall direct an election by secret
ballot and shall certify the results thereof. Not earlier than
7 days after a final determination by the Board of the
appropriate bargaining unit, the Board shall acquire from the
employer a list of all employees eligible to vote in the
election to be made available to all parties, which shall
include the names of the employees, and not more than one
additional form of personal contact information of the
employee, (such as telephone number, email address, or mailing
address) chosen by the employee in writing.
* * * * * * *
MINORITY VIEWS
H.R. 4321 ATTACKS THE RIGHTS OF WORKERS AND FAILS TO ADDRESS THE URGENT
NEED TO INCREASE THE MINIMUM WAGE AND ADDRESS WORKPLACE WAGE
DISCRIMINATION
Committee Democrats oppose and voted unanimously against
H.R. 4321, the ``Employee Privacy Protection Act.'' H.R. 4321
would delay NLRB elections by prohibiting the circulation of
the voter list to unions for at least 7 days after a final
determination by the Board of the appropriate bargaining unit.
By contrast, the proposed Board rule would require circulation
of the voter list directly to unions (rather than to the Board
first, thus saving time) electronically after 2 days, and does
not require Board review of the bargaining unit until after the
election. The bill also limits additional contact information
provided to unions beyond home addresses to either email or
telephone numbers, as opposed to the proposed Board rule which
allows unions access to both. In sum, the bill substantially
disadvantages the fair choice of employees by allowing the
employers access to emails, calls, and captive audience
meetings, while at the same time limiting union's access to
additional contact through the ``voluntary'' selection of the
employee, and mandating substantial delays in providing voter
lists. By not allowing unions to contact workers, H.R. 4321
prevents the creation of the level playing field the National
Labor Relations Act is intended to produce in a representation
election.
This bill attempts to undermine the National Labor
Relations Board's (NLRB) proposed rules while doing nothing to
help workers fight for fair wages in the workplace. The NLRB
recently proposed commonsense rules to modernize the
representation election process by standardizing best practices
and reducing frivolous litigation and delay. H.R. 4321 is an
effort to preempt improvements put forth in the proposed rule.
COMMITTEE DEMOCRATS OFFER AMENDMENTS TO H.R. 4321 TO HELP WORKERS
ACCESS FAIR PAY
H.R. 4321 is also misguided because it neglects the real
life problems workers face in today's workplace. In response,
the Committee Democrats offered amendments to increase the
minimum wage and boost protections against wage discrimination.
Representative Pocan introduced an amendment that would
strike the text of H.R. 4321 and replace it with the Fair
Minimum Wage Act (H.R. 1010). The bill provides a long overdue
increase in the minimum wage to $10.10 from $7.25 and increases
the tipped wage from $2.13 to 70 percent of the minimum wage.
It also indexes the minimum wage to inflation. No one should
work full time and live in poverty, but currently, someone
working full-time, year-round, earning minimum wage makes just
$14,500, almost $4,000 below the poverty line for a parent with
two children. Fifty-five percent of workers making minimum wage
work full time and 88 percent are adults 20 years old or older.
These workers bring home 50 percent of their family's total
income on average. Moreover, two-thirds of minimum wage workers
are women. An increase in the minimum wage to $10.10 would
raise the pay of at least 25 million workers across the
nation--4.7 million of whom are mothers--and lift between 1
million and 4.5 million Americans out of poverty. Increasing
the minimum wage to $10.10 is not only good for workers and
their families, but also for the economy as whole. This raise
in the wage floor would generate a total of $35 billion in
increased compensation for working families, $22 billion in
economic activity for businesses, and create 85,000 new jobs.
The amendment was ruled non-germane. Representative Pocan
appealed the ruling of the chair and the vote to table the
appeal the ruling of the chair on the amendment was adopted 17-
21.
Representative Courtney and Representative Wilson
introduced an amendment that would strike the text of H.R. 4321
and replace it with The Paycheck Fairness Act (H.R. 377). The
Paycheck Fairness Act closes loopholes that provide employers
with a means to avoid responsibility for discriminatory pay.
Gender-based wage discrimination remains a serious problem with
women only making 77 cents for every dollar earned by a man
according to the U.S. Census Bureau. The Institute of Women's
Policy Research estimated that the disparity in pay will cost
women between $400,000 and $2 million in lost wages over a
lifetime harming families and the economy. Additionally,
because the gap in pay affects pension benefit calculations and
Social Security many women will be less secure in retirement
than if they had not been subject to pay discrimination. The
Paycheck Fairness Act allows women to sue for compensatory and
punitive damages, which puts gender-based discrimination
sanctions on equal footing with other forms of wage
discrimination. The Paycheck Fairness Act also sets high
standards for accountability in court for employers, modernizes
the law by allowing workers to make pay comparisons for the
same job with the same employer at different worksites in the
same county, and prohibits employers from retaliating against
employees who discuss or disclose pay information with
coworkers--the primary way in which unequal pay is discovered.
The amendment was ruled non-germane. Representative
Courtney appealed the ruling of the chair and the vote to table
the appeal of the ruling of the Chair on the amendment was
adopted 21-17.
CONCLUSION
H.R. 4321 is a misguided attempt to prevent commonsense
reforms to the representation election process because its
effect will be to delay and ultimately prevent union elections.
This does nothing to improve conditions for workers who are
struggling in this country and instead, weakens the
representation election process
that protects workers' rights. Committee Democrats are united
in opposition to H.R. 4321 and will continue to fight for the
rights of workers and families.
George Miller.
Ruben Hinojosa.
John F. Tierney.
Susan A. Davis.
Timothy H. Bishop.
Joe Courtney.
Jared Polis.
Frederica S. Wilson.
Mark Pocan.
Robert C. ``Bobby'' Scott.
Carolyn McCarthy.
Rush Holt.
Raul M. Grijalva.
David Loebsack.
Marcia L. Fudge.
Gregorio Kilili Camacho Sablan.
Suzanne Bonamici.
Mark Takano.