[House Report 113-653]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-653
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WORKFORCE DEMOCRACY AND FAIRNESS ACT
_______
December 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. 4320]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and the Workforce, to whom was
referred the bill (H.R. 4320) to amend the National Labor
Relations Act with respect to the timing of elections and pre-
election hearings and the identification of pre-election
issues, having considered the same, report favorably thereon
with an amendment and recommend that the bill as amended do
pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Workforce Democracy and Fairness
Act''.
SEC. 2. PRE-ELECTION HEARINGS.
Section 9(c)(1) of the National Labor Relations Act (29 U.S.C.
159(c)(1)) is amended in the matter following subparagraph (B)--
(1) by inserting ``, but in no circumstances less than 14
calendar days after the filing of the petition'' after ``upon
due notice'';
(2) by inserting after ``with respect thereto.'' the
following: ``An appropriate hearing shall be one that is non-
adversarial with the hearing officer charged, in collaboration
with the parties, with the responsibility of identifying any
relevant and material pre-election issues and thereafter making
a full record thereon. Relevant and material pre-election
issues shall include, in addition to unit appropriateness, the
Board's jurisdiction and any other issue the resolution of
which may make an election unnecessary or which may reasonably
be expected to impact the outcome of the election. Parties may
independently raise any relevant and material pre-election
issue or assert any relevant and material position at any time
prior to the close of the hearing.''; and
(3) by striking ``and shall certify the results thereof'' and
inserting ``to be conducted as soon as practicable but no
earlier than 35 calendar days after the filing of an election
petition. The Board shall certify the results of the election
after it has ruled on each pre-election issue not resolved
before the election and any additional issue pertaining to the
conduct or results of the election''.
SEC. 3. DETERMINATION OF APPROPRIATE UNITS FOR COLLECTIVE BARGAINING.
Section 9(b) of the National Labor Relations Act (29 U.S.C. 159(b))
is amended--
(1) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively;
(2) by striking ``The Board shall decide'' and all that
follows through ``or subdivision thereof:'' and inserting the
following: ``(1) In each case, prior to an election, the Board
shall determine, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act, the
unit appropriate for the purposes of collective bargaining.
Unless otherwise stated in this Act, and excluding any
bargaining unit determination promulgated through rulemaking
before August 26, 2011, the unit appropriate for purposes of
collective bargaining shall consist of employees that share a
sufficient community of interest. In determining whether
employees share a sufficient community of interest, the Board
shall consider--
``(A) similarity of wages, benefits, and working conditions;
``(B) similarity of skills and training;
``(C) centrality of management and common supervision;
``(D) extent of interchange and frequency of contact between
employees;
``(E) integration of the work flow and interrelationship of
the production process;
``(F) the consistency of the unit with the employer's
organizational structure;
``(G) similarity of job functions and work; and
``(H) the bargaining history in the particular unit and the
industry.
To avoid the proliferation or fragmentation of bargaining units,
employees shall not be excluded from the unit unless the interests of
the group seeking a separate unit are sufficiently distinct from those
of other employees to warrant the establishment of a separate unit.
Whether additional employees should be included in a proposed unit
shall be determined based on whether such additional employees and
proposed unit members share a sufficient community of interest, with
the sole exception of proposed accretions to an existing unit, in which
the inclusion of additional employees shall be based on whether such
additional employees and existing unit members share an overwhelming
community of interest and the additional employees have little or no
separate identity.''; and
(3) by striking ``Provided, That the Board'' and inserting
the following:
``(2) The Board''.
COMMITTEE REPORT
Purpose
H.R. 4320, Workforce Democracy and Fairness Act, seeks to
narrowly preempt the National Labor Relations Board's (NLRB or
Board) February 6, 2014, rulemaking on election procedures and
reverse its August 26, 2011, decision in Specialty Healthcare
and Rehabilitation Center of Mobile (Specialty Healthcare),
which limits employee free choice and employer free speech and
will fracture the workforce.\1\ The bill will codify the
traditional standard for determining an appropriate bargaining
unit and the traditional standard used to challenge a
petitioned-for bargaining unit, require the Board to rule prior
to the election on challenges to composition of the bargaining
unit, ensure employers have at least 14 days to prepare for a
pre-election hearing, allow parties to raise relevant and
material pre-election issues as the pre-election hearing record
is developed, provide employees with at least 35 days to
consider whether they wish to be represented by a union, and
ensure parties may request post-election Board review of
regional directors' decisions. The Workforce Democracy and
Fairness Act will ensure employee free choice, employer free
speech, and workforce cohesion.
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\1\357 NLRB No. 83, 12 (Aug. 26, 2011).
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Committee Action
112TH CONGRESS
Subcommittee hearing highlights concerns about the NLRB's harmful
actions
On February 11, 2011, the Subcommittee on Health,
Employment, Labor, and Pensions held a hearing examining the
``Emerging Trends at the National Labor Relations Board.'' The
hearing examined controversial and precedent-changing NLRB
holdings and invitations for briefs (including Specialty
Healthcare), the NLRB's December 22, 2010, Notice of Proposed
Rulemaking mandating employers hang a vague and biased poster
regarding union rights at work, and new policies issued by
Acting NLRB General Counsel Lafe Solomon. Witnesses at this
hearing were Mr. Philip A. Miscimarra, Partner, Morgan, Lewis &
Bockius LLP, Chicago, Illinois; Mr. Arthur Rosenfeld, former
National Labor Relations Board General Counsel, Alexandria,
Virginia; Mr. G. Roger King, Partner, Jones Day, Columbus,
Ohio; and Ms. Cynthia Estlund, Professor of Law, New York
University School of Law, New York, New York.
Full Committee hearing investigates NLRB's unprecedented rulemaking
On July 7, 2011, the Committee on Education and the
Workforce heard testimony on the NLRB's proposed election
procedure regulation in a hearing entitled ``Rushing Union
Elections: Protecting the Interests of Big Labor at the Expense
of Workers' Free Choice.'' Witnesses 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 were the Honorable Peter C.
Schaumber, former National Labor Relations Board Chairman,
Washington, D.C.; Mr. Larry Getts, Tube Press Technician, Dana
Corporation, Garrett, Indiana; Mr. John Carew, President, Carew
Concrete & Supply Company, Appleton, Wisconsin, testifying on
behalf of himself and the National Ready Mixed Concrete
Association; Mr. Michael J. Lotito, Attorney, Jackson Lewis
LLP, San Francisco, California; and Mr. Kenneth Dau-Schmidt,
Professor, Indiana University, Maurer School of Law,
Bloomington, Indiana.
Full Committee hearing explores NLRB's decision to disenfranchise
employees in union elections
On September 22, 2011, the Committee on Education and the
Workforce held a hearing on the ``Culture of Union Favoritism:
Recent Actions of the National Labor Relations Board.'' At the
end of August 2011, the NLRB issued a number of biased, anti-
worker decisions, including Specialty Healthcare, Lamons
Gasket, and UGL-UNICCO. Additionally, the Board finalized a
rule requiring almost every employer to post a vague, union-
biased notice on employee National Labor Relations Act (NLRA)
rights. The Board's unbridled overreach of authority demanded a
complete examination by the committee. Witnesses before the
committee were 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.
Introduction of H.R. 3094, Workforce Democracy and Fairness Act
On October 5, 2011, Chairman John Kline (R-MN) introduced
H.R. 3094, Workforce Democracy and Fairness Act, with 26
cosponsors. Recognizing the NLRB had gone far beyond an
adjudicative body designed to implement congressional intent
under the NLRA, legislation was necessary to (1) reinstate the
traditional standard for determining which employees make up an
appropriate bargaining unit; (2) ensure employers are able to
participate in a fair union election; (3) guarantee workers
have the ability to make a fully informed decision in a union
election; and (4) safeguard employee privacy by allowing
workers to decide the type of personal information provided to
a union.
Legislative hearing to consider bill
On October 12, 2011, the Committee on Education and the
Workforce held a legislative hearing on H.R. 3094. Witnesses
testified the Board had overturned decades of precedent to
facilitate union organizing at the cost of employee free choice
and employer free speech and these actions would have
devastating economic consequences for the country. Witnesses
were the Honorable Charles Cohen, Senior Counsel, Morgan, Lewis
and Bockius LLP, and former Member, National Labor Relations
Board, Washington, D.C.; Mr. Robert Sullivan, President, RG
Sullivan Consulting, Westmoreland, New Hampshire, testifying on
behalf of the Retail Industry Leaders Association; Mr. Michael
J. Hunter, Partner, Hunter, Carnahan, Shoub, Byard and
Harshman, Columbus, Ohio; and Mr. Phillip Russell, Attorney,
Ogletree Deakins, Tampa, Florida.
Committee favorably reports H.R. 3094, Workforce Democracy and Fairness
Act
On October 26, 2011, the Committee on Education and the
Workforce considered H.R. 3094. Chairman Kline offered an
amendment in the nature of a substitute, clarifying that years
of labor policies affecting the acute health care industry
remain in place; limiting pre-election issues to those that are
relevant and material; and reaffirming the Board's
responsibility to grant or deny requests for review of regional
directors' decisions before the election. Nine additional
amendments were offered and debated; however, no additional
amendments were adopted. The committee favorably reported the
bill to the House of Representatives by a vote of 23-16.
House passes H.R. 3094
On November 30, 2011, the House of Representatives
considered H.R. 3094. Four amendments and an amendment in the
nature of a substitute were offered, but none were adopted. The
House passed H.R. 3094 by a bipartisan vote of 235-188. The
Senate failed to act on the bill before the conclusion of the
112th Session of 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
``The Future of Union Organizing.'' The hearing reviewed the
application of Specialty Healthcare and the future of NLRB
representational elections. Witnesses were Mr. David R. Burton,
General Counsel, National Small Business Association,
Washington, D.C.; Mr. Clarence Adams, Field Technician,
Cablevision, Brooklyn, New York; Mr. Ronald Meisburg, Member of
the Firm, Proskauer Rose, 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.''
Witnesses testified the proposed ambush election rule,\2\ like
its predecessor, would considerably shorten the time between
the filing of the petition and the election date, and
substantially limit the opportunity for a full evidentiary
hearing or Board resolution of contested issues, including
appropriate bargaining unit, voter eligibility, and election
misconduct. Witnesses at this hearing were Ms. Doreen S. Davis,
Partner, Jones Day, New York, New York; Mr. Steve Browne, Vice
President of Human Resources, LaRosa, Cincinnati, Ohio; Ms.
Caren P. Sencer, Shareholder, Weinberg, Roger & Rosenfeld P.C.,
Alameda, California; and Mr. William Messenger, Staff Attorney,
National Right to Work Legal Defense Foundation, Inc.,
Springfield, Virginia.
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\2\79 Fed. Reg. 7318.
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Introduction of H.R. 4320, Workforce Democracy and Fairness Act
On March 27, 2014, Chairman Kline introduced H.R. 4320,
Workforce Democracy and Fairness Act with 20 cosponsors. The
legislation largely mirrored H.R. 3094, Workforce Democracy and
Fairness Act as introduced in the 112th Congress. Among the
most significant differences, H.R. 4320 does not address the
Board's proposed changes to the ``Excelsior list''\3\ or its
Specialty Healthcare decision. Recognizing that the NLRB's
ambush election rule would fundamentally alter representational
elections to the determent of employers and employees,
legislation was necessary to (1) ensure employers are able to
participate in a fair union election and (2) guarantee workers
have the ability to make a fully informed decision in a union
election.
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\3\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.
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Committee favorably reports H.R. 4320, Workforce Democracy and Fairness
Act
On April 9, 2014, the Committee on Education and the
Workforce considered H.R. 4320. Chairman Kline offered an
amendment in the nature of a substitute, making a technical
change to clarify that the legislation applies to
representational elections. Four additional amendments were
offered and debated. Representative Tom Price's (R-GA)
amendment codifying the NLRB's bargaining unit determination
standard prior to Specialty Healthcare was adopted by a vote of
21-13. The committee favorably reported H.R. 4320 to the House
of Representatives by a vote of 21-14.
Summary
The Workforce Democracy and Fairness Act (H.R. 4320) would
(1) codify the traditional standard for determining an
appropriate bargaining unit and the traditional standard used
to challenge a petitioned-for bargaining unit; (2) require the
Board to rule prior to the election on challenges to
composition of the bargaining unit: (3) ensure employers have
at least 14 days to prepare for a pre-election hearing; (4)
allow parties to raise relevant and material pre-election
issues as the pre-election hearing record is developed; (5)
provide employees with at least 35 days to consider whether
they wish to be represented by a union; and (6) ensure parties
may request post-election Board review of a regional director's
decisions.
The legislation is designed to be a narrow reversal of the
NLRB's August 26, 2011, decision in Specialty Healthcare and
Rehabilitation Center of Mobile and preempt the NLRB's February
6, 2014, proposed election procedures without upsetting any
other current law. The legislation will ensure cohesion in the
workplace, employee free choice, and employer free speech.
Committee Views
In 1935, Congress passed the National Labor Relations Act
(NLRA), guaranteeing the right of most private sector
employees\4\ to organize and select their own representative.
In 1947, Congress passed the Taft-Hartley Act,\5\ the most
significant amendment of the NLRA, abandoning ``the policy of
affirmatively encouraging the spread of collective bargaining .
. . [and] striking a new balance between protection of the
right to self-organization and various opposing claims.''\6\
The Taft-Hartley Act clarified 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 U.S.C. Sec. 152(2).
\5\29 U.S.C. Sec. 141 et seq.
\6\Archibald Cox, Some Aspects of the Labor Management Relations
Act of 1947, 61 Harv. L. Rev. 1, 4 (1947).
\7\29 U.S.C. Sec. 157.
\8\Id. Sec. 158.
\9\Id. Sec. 158(c).
\10\Id. Sec. 159(d).
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The NLRA established the NLRB as an independent federal
agency to fulfill two principal functions: (1) to prevent and
remedy employer and union unlawful acts, called unfair labor
practices or ULPs; and (2) to determine by secret ballot
election whether employees wish to be represented by a union.
In determining whether employees wish to be represented by a
union, the NLRA is wholly neutral.\11\
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\11\NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973).
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CURRENT REPRESENTATIONAL ELECTION PROCESS
Section 9 of the NLRA broadly lays out the rules under
which employees exercise their right to select or reject a
union through a secret ballot.\12\ In general, NLRB rulings,
regulations, or internal policies establish specific
representational election procedures.\13\
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\12\29 U.S.C. Sec. 159.
\13\Notice of Proposed Rulemaking, Representation--Case Procedures,
79 Fed. Reg. 7319 (Feb. 6, 2014).
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The representational election process begins when
employees, an employer, or a labor organization files a
petition for an investigation and certification of the
representatives (petition) with the NLRB's regional office.\14\
If a petition is filed by employees or a labor organization,
the petitioner should present within 48 hours of filing
evidence that 30 percent of employees in the proposed
bargaining unit support the petition, typically through signed
and dated authorization cards.\15\
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\14\National Labor Relations Board Casehandling Manual para.
11002.2-11002.3.
\15\Id. para. 11003.1 and 11023.1.
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Upon receipt of the petition, the regional director\16\
issues a notice of hearing and serves the following on the
employer: the petition, a Notice to Employees, a generic notice
of employees' rights, and a Questionnaire on Commerce to
receive information relevant to the Board's jurisdiction.\17\
Additionally, the regional director ordinarily will request a
list of employees in the petitioned-for unit and their job
classifications to determine whether 30 percent of employees
are interested in representation and the employer's position as
to the appropriateness of the unit described in the
petition.\18\ To limit delay, if the list is untimely or not
filed, absent unusual circumstances, the Board will assume the
number of unit employees estimated is accurate and the
individuals are among those employed in the unit.\19\
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\16\While the Board is responsible for conducting secret ballot
elections, in 1961 it delegated the bulk of its authority over election
cases to its regional directors. The regional directors: (1) decide
whether a question concerning representation exists; (2) determine the
appropriate bargaining unit; (3) direct the election; (4) certify the
results of the election; and (5) make findings and issue rulings on
objections and challenged ballots.
\17\Id. para. 11009.
\18\Id. para. 11009.1.
\19\Id. para. 11009.2.
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These official requests by the regional director are
followed up by telephone consultations, meetings, and joint
conference calls with the parties before the pre-election
hearing to resolve outstanding issues and secure an election
agreement.\20\ If parties can agree on representational issues,
they may enter into one of three types of election agreements:
the consent election agreement, the stipulated election
agreement, or the full consent election agreement.\21\ In
consent agreements, post-election issues are decided by the
regional director.\22\ In stipulated agreements, post-election
issues are decided by the Board.\23\ In 2013, more than 91
percent of initial NLRB representational elections were held
pursuant to agreement of the parties.\24\
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\20\Id. para. 11012.
\21\Id. para. 11084.
\22\Id. para. 11084.1.
\23\Id.
\24\Percentage of Elections Conducted Pursuant to Election
Agreements in FY13, National Labor Relations Board, available at http:/
/www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/
percentage-elections-conducted-pursuant-election (last visited Oct. 2,
2014).
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In those rare cases (less than 10 percent) in which parties
cannot reach an election agreement, a Board agent will hold a
pre-election hearing to develop and record evidence upon which
the Board may discharge its duties under Section 9 of the
NLRA.\25\ The hearing is investigatory and non-adversarial.\26\
Parties may present evidence on issues including the Board's
jurisdiction, the existence of any bars to an election, the
appropriateness of the unit, and eligibility of particular
employees to vote.\27\ The employer may petition for inclusion
of additional employees in the bargaining unit by showing that
the additional employees share a ``sufficient community of
interest'' with the petitioned-for unit. To expedite the
process, the hearing is held typically on consecutive days
until completion,\28\ and issues are limited to pre-election
issues\29\ that are genuinely in dispute.\30\ Postponement
requests are granted only under the most compelling
circumstances.\31\
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\25\National Labor Relations Board Casehandling Manual para. 11181.
\26\Id.
\27\79 Fed. Reg. 7324.
\28\National Labor Relations Board Casehandling Manual para. 11008.
\29\Excludes issues such as alleged violations of federal statutes,
the adequacy of the showing of interest, and alleged unfair labor
practices, unless such matters are material to the issue of whether a
question concerning representation exists.
\30\If a party refuses to state its position on an issue and no
controversy exists, the party may be foreclosed from presenting
evidence on that issue. Mariah, Inc., 322 NLRB 586 (1996); Bennett
Industries, 313 NLRB 1363 (1994).
\31\National Labor Relations Board Casehandling Manual para. 11207.
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In most cases, the regional director issues a decision
based on the record developed at the pre-election hearing.\32\
Within the decision, the Board is statutorily obligated to
determine the appropriate bargaining unit.\33\ In general, the
Board applies the ``sufficient community of interest'' standard
to determine the appropriateness of the bargaining unit. To
determine whether employees share a sufficient community of
interest, the Board evaluates a number of factors, including
skills, training, and whether the employees are organized into
a separate department.\34\ After finding the unit shares a
sufficient community of interest, the Board proceeds to
determine whether the interests of the group sought are
sufficiently distinct from those of other employees to warrant
the establishment of a separate unit.\35\ In most cases, the
regional director will either direct an election or dismiss the
petition. Under these procedures in 2013, the median time
between the notice of hearing and the close of the pre-election
hearing was 13 days. The median time between the close of the
pre-election hearing and the regional director's decision was
20 days.\36\ In 2012, regional directors issued 169 pre-
election decisions in cases involving contested representations
in a median of 34 days.\37\
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\32\Id. para. 11273.
\33\Allen Health Care Services, 332 NLRB No. 134 (2000); American
Hospital Ass'n. v. NLRB, 499 U.S. 606, 611, and 614 (1991).
\34\Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962); United
Operations Inc., 338 NLRB No. 18 (2002).
\35\Seaboard Marine, Ltd., 327 NLRB No. 108 (1999), Brand Precision
Services, 313 NLRB 657 (1994); Transerv Systems, 311 NLRB 766 (1993).
\36\E-mail from Celine McNicholas, Special Counsel, National Labor
Relations Board, to Marvin Kaplan, Workforce Policy Counsel, House
Education and the Workforce Committee (Mar. 3, 2014, 12:22 EST) (on
file with author).
\37\General Counsel Memorandum 13-01, 7 (Jan. 11, 2013).
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To ensure uniform and consistent application, parties may
appeal the regional director's decisions pre- and post-election
to the Board. Pre-election decisions are appealed by filing a
request for review with the Board within 14 days of the
issuance of the decision.\38\ The Board will grant the request
if specific circumstances exist.\39\ To ensure the Board has an
opportunity to rule on a request for review, the regional
director ``will normally not schedule an election until a date
between the 25th and 30th day after the date of the
decisions.''\40\ Unless waived in a pre-election agreement,
parties may obtain Board review of the regional director's
disposition of election objections and challenges post-election
by filing exceptions.\41\
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\38\National Labor Relations Board Casehandling Manual para. 11274
and 11364.5.
\39\NLRB Rules and Regulations 102.67(c), requests may be granted
only upon one or more of the following grounds:
(1) A substantial question of law or policy is raised because of
the absence of or the departure from officially reported Board
precedent;
(2) The regional director s decision on a substantial factual issue
is clearly erroneous on the record and such error prejudicially affects
the rights of a party;
(3) The conduct of the hearing or any ruling made in connection
with the proceeding has resulted in prejudicial error; or
(4) Compelling reasons exist for reconsideration of an important
Board rule or policy.
\40\29 CFR 101.21(d).
\41\79 Fed. Reg. 7325.
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The current Board process has been effective in
expeditiously resolving questions concerning representation
while maintaining the rights of employees and employers. For
all petitions filed in 2013, the median time from the filing of
a petition to an election was 38 days.\42\ More than 94 percent
of all initial elections were conducted within 56 days of the
filing of the election petition.\43\ Former NLRB general
counsels have described similar results as ``outstanding.''\44\
Additionally, unions won almost two-thirds of representational
elections in calendar year 2013.\45\
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\42\Median Days from Petition to Election, National Labor Relations
Board, available at
http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/
median-days-petition-election (last visited Oct. 2, 2014).
\43\Percentage of Elections Conducted in 56 Days in FY13, National
Labor Relations Board, available at http://www.nlrb.gov/news-outreach/
graphs-data/petitions-and-elections/percentage-elections-conducted-56-
days-fy13 (last visited Oct. 2, 2014).
\44\General Counsel Memorandum 11-03 at ``Introduction'' (Jan. 10,
2011).
\45\NLRB Graphs and Data, Disposition of Election Petitions Closed
in FY13, available at http://www.nlrb.gov/news-outreach/graphs-data/
petitions-and-elections/disposition-election-
petitions-closed-fy13 (last visited Oct. 2, 2014).
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NEW REPRESENTATIONAL ELECTION PROCESS
Despite the success of the existing election procedures,
the NLRB re-proposed significant changes to the
representational election process that will dramatically
shorten the time between the filing of the petition and the
representational election and will limit the opportunity for a
full evidentiary hearing or Board review on contested
issues.\46\ In Specialty Healthcare, the NLRB majority--
overturning decades of precedent--articulated a new standard
for determining employee bargaining units that will fragment
the workplace. Taken together, the Board's actions will have
the effect of limiting employee free choice and employer free
speech and fracturing the workforce.
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\46\79 Fed. Reg. 7318.
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February 6, 2014, Proposed Rulemaking
To speed up the representational election process, the
Board's proposal would (1) replace the Questionnaire on
Commerce Information with a Statement of Positions; (2) set
pre-election hearings to begin seven days after the petition is
filed: (3) delay voter eligibility issues until after the
election: and (4) make post-election Board review
discretionary.\47\
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\47\Id.
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The Statement of Positions will solicit the parties'
position on (1) the Board's jurisdiction; (2) the
appropriateness of the petitioned-for unit; (3) any proposed
exclusions from the petitioned-for unit; (4) the existence of
any bar to the election; (5) the types, dates, times, and
locations of the election; and (6) any other issues that a
party intends to raise at the hearing.\48\ With few exceptions,
issues not raised in the Statement of Positions will be
waived.\49\ The Statement of Positions would be due no later
than the date of the pre-election hearing, seven days from the
filing of the petition.\50\
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\48\Id. at 7328.
\49\Id.
\50\Id.
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Under the proposed rule, resolution of disputes concerning
the eligibility or inclusion of individual employees that
represent less than 20 percent of the unit will be resolved if
necessary after the election.\51\ According to the Board, the
``adoption of a bright-line numerical rule requiring that
questions concerning the eligibility or inclusion of
individuals constituting no more than 20 percent of all
potentially eligible voters be litigated and resolved, if
necessary, post-election, best serves the interests of the
parties and employees as well as the public interest in
efficient administration of the representation case
process.''\52\
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\51\Id. at 7330.
\52\Id. at 7331.
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The proposed rule would eliminate pre-election Board
review.\53\ All pre-election rulings if not rendered moot,
would remain subject to Board review post-election.\54\
Regional directors would no longer be required to provide at
least 25 days between the issuance of the decision and the
election for Board review.\55\
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\53\Id. at 7333.
\54\Id.
\55\29 C.F.R. 101.21(d).
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The Board's majority asserts the proposed rule has been
implemented to ``remove unnecessary barriers to the fair and
expeditious resolution of questions concerning
representation.''\56\ However, as was the case in 2011, the
Board has made no ``attempt to identify particular problems in
cases where the process has failed.''\57\ In the opinion of
former NRLB Member Brian Hayes, ``vacancies or partisan shifts
in Board membership and the inability of the Board itself to
deal promptly with complex legal and factual issues have
delayed final resolution far more often than any systematic
procedural problems or obstructionist legal tactics.''\58\
Former NLRB Chairman Peter Schaumber agreed that the election
process was not the source of delays.\59\ As Mr. Hayes has also
noted, the ``problem'' the Board seeks to address with this
rule ``is not that the representation election process
generally takes too long, [i]t is that unions are not winning
more elections. . . . The [Board] majority [has] act[ed] in
apparent furtherance of the interests of a narrow constituency,
[unions], and at the great expense of undermining public trust
in the fairness of Board elections.''\60\ It is the committee's
view the Board is seeking to address a problem that does not
exist.
---------------------------------------------------------------------------
\56\Id. at 7337.
\57\76 Fed. Reg. at 36833.
\58\Id. at 36831.
\59\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the House
Education and the Workforce Committee, 112th Cong., 1st Sess. at 77
(2011).
\60\Notice of Proposed Rulemaking, Representation--Case Procedures,
76 Fed. Reg. 36812, 80 (June 22, 2011), available at http://
www.nlrb.gov/sites/default/files/documents/525/2011-15307_pi_2.pdf.
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Specialty Healthcare and Rehabilitation Center of Mobile
On August 26, 2011, in Specialty Healthcare,\61\ the Board
majority articulated a new standard for determining the
composition of bargaining units. Under the new standard, if the
union-proposed bargaining unit is made up of a readily
identifiable group\62\ and the Board finds the employees in the
group share a community of interest, the Board will find the
proposed unit appropriate.\63\ Any party seeking to enlarge the
unit must demonstrate that employees in the larger unit share
an ``overwhelming community of interest'' with those in the
petitioned-for unit.\64\ The Board will no longer determine
whether the interests of the group sought are sufficiently
distinct from those of other employees to warrant the
establishment of a separate unit.\65\ While the underlying case
dealt specifically with non-acute health care, the Board
decision significantly affects all industries.\66\ NLRB
regional offices ``will have little option but to find almost
any petitioned-for unit appropriate.''\67\ In the opinion of
former NLRB Region 10 Director Curtis Mack, ``a regional
director looking at a representation petition would be
compelled to hold a representation election for any unit
supported by the union.''\68\ Under the new standard, ``it
[will be] virtually impossible for a party opposing th[e] unit
to prove that any excluded employees should be included.''\69\
---------------------------------------------------------------------------
\61\357 NLRB No. 83 (Aug. 26, 2011).
\62\Such as employees that make up a job classification,
department, or work location.
\63\357 NLRB No. 83, 12 (Aug. 26, 2011).
\64\Id. at 6.
\65\Id.at 12.
\66\Id. at 18.
\67\Id. at 20.
\68\Culture of Union Favoritism: Recent Actions of the National
Labor Relations Board, Hearing before the House Education and the
Workforce Committee, 112th Cong., 1st Sess. at 13 (2011) (written
testimony of Curtis Mack) [hereinafter Mack Testimony].
\69\Id. at 19.
---------------------------------------------------------------------------
Under Specialty Healthcare, the NLRB is approving
fragmented petitioned-for units despite past precedent and
challenges to the unit have been unsuccessful. For example, on
July 22, 2014, in Macy's, Inc.,\70\ the NLRB determined that
cosmetics and fragrance employees at the Macy's store in
Saugus, Massachusetts, are an appropriate unit for collective
bargaining.\71\ Despite past precedent that the appropriate
unit is a store-wide unit\72\ and extensive evidence that all
sales associates share a community of interest,\73\ in the
opinion of the Board majority,\74\ the employer had not
``demonstrated that its other selling employees share an
overwhelming community of interest with the cosmetics and
fragrances employees.''\75\ While the NLRB rejected a unit
consisting of employees in the salon and contemporary shoes
departments at a Manhattan Bergdorf Goodman in The Neiman
Marcus Group, Inc., it appears to endorse an even smaller unit
consisting of only those employees in the salon shoes
department.\76\ The Board's new standard is intended to
fragment the workplace for the benefit of union organizing at
the expense of employers and employees.
---------------------------------------------------------------------------
\70\361 NLRB No. 4 (2014).
\71\Macy's at 1.
\72\Bullocks, Inc., d/b/a I. Magnin & Co., 119 NLRB 642 (1957).
\73\Macy's at 22-23.
\74\Member Miscimarra dissented and Member Johnson recused himself.
\75\Macy's at 19.
\76\The Neiman Marcus Group, Inc., 361 NLRB No. 11, 3 (2014).
---------------------------------------------------------------------------
IMPLICATIONS OF THE NEW REPRESENTATIONAL ELECTION PROCESS
The NLRB's February 6, 2014, proposed rule will restrict an
employer's ability to communicate with his or her employees,
cripple an employee's ability to make an informed decision as
to unionization, increase litigation, and decrease election
agreements. The August 26, 2011, Specialty Healthcare decision
will fracture workplaces, increasing labor costs and decreasing
employee opportunities.
Limited opportunity for a robust debate and employee free choice
Congress recognized the value of employer speech and a
robust debate when it added section 8(c) to the NLRA.\77\ The
Supreme Court noted Congress's express protection of free
debate:
---------------------------------------------------------------------------
\77\29 U.S.C. Sec. 158(c)(``The expressing of any views, argument,
or opinion, or the dissemination thereof, whether in written, printed,
graphic, or visual form, shall not constitute or be evidence of an
unfair labor practice under any of the provisions of this Act
[subchapter], if such expression contains no threat of reprisal or
force or promise of benefit.'').
From one vantage, Sec. 8(c) ``merely implements the
First Amendment,'' NLRB v. Gissel Packing Co., 395 U.S.
575, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), in that
it responded to particular constitutional rulings of
the NLRB. See S.Rep. No. 80-105, pt. 2, pp. 23-24
(1947). But its enactment also manifested a
``congressional intent to encourage free debate on
issues dividing labor and management.'' Linn v. Plant
Guard Workers, 383 U.S. 53, 62, 86 S.Ct. 657, 15
L.Ed.2d 582 (1966). It is indicative of how important
Congress deemed such ``free debate'' that Congress
amended the NLRA rather than leaving to the courts the
task of correcting the NLRB's decisions on a case-by-
case basis. We have characterized this policy judgment,
which suffuses the NLRA as a whole, as ``favoring
uninhibited, robust, and wide-open debate in labor
disputes,'' stressing that ``freewheeling use of the
written and spoken word . . . has been expressly
fostered by Congress and approved by the NLRB.'' Letter
Carriers v. Austin, 418 U.S. 264, 272-273, 94 S.Ct.
2770, 41 L.Ed.2d 745 (1974).\78\
---------------------------------------------------------------------------
\78\Chamber of Commerce v. Brown, 554 U.S. 60, 67-68 (2008).
The proposed election procedures will effectively eliminate
an employer's opportunity to communicate with its employees.
Under the proposed election procedures, representational
elections will be held in as little as 10 days.\79\ The
employer will spend the first seven days finding legal
representation and preparing for the pre-election hearing,
leaving as little as three days to educate employees and rebut
misinformation.
---------------------------------------------------------------------------
\79\76 Fed. Reg. 36831
---------------------------------------------------------------------------
In contrast, the union seeking to organize employees will
have weeks, maybe years, to covertly lobby employees while
collecting authorization cards. Unlike the employer, the union
can promise employees increased wages, benefits, vacation time,
etc., with few restrictions under the law.\80\ While employees
are likely to receive extensive information from the union on
the benefits of unionization, employees are unlikely to receive
information from the union on the union's political or social
agenda, dues, or the effects unionization can have on their
employer's profitability or market competitiveness.\81\ When
the union has garnered sufficient support, it selects the date
and time for filing the petition.\82\
---------------------------------------------------------------------------
\80\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 15 (2011)
(written testimony of Peter Schaumber) [hereinafter Schaumber
Testimony].
\81\Id.
\82\Id.
---------------------------------------------------------------------------
At the Committee on Education and the Workforce's July 7,
2011, hearing entitled ``Rushing Union Elections: Protecting
the Interests of Big Labor at the Expense of Workers' Free
Choice,'' John Carew, president of Carew Concrete and Supply
Co., described his experience with a union organizing drive and
election. In mid-September 1999 during one of his company's
busiest times of year, the NLRB informed Carew Concrete that a
union was attempting to organize its entire employee base.\83\
This was the first time Mr. Carew had heard about the
organizing drive.\84\ Speaking of the organizing drive at Carew
Concrete, Mr. Carew testified:
---------------------------------------------------------------------------
\83\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 3 (2011)
(written testimony of John Carew)[hereinafter Carew Testimony]
\84\Id.
[E]mployees would receive mail containing not enough
information, misinformation, and misleading information
on issues such as striking, health care insurance,
wages and pensions. At times employees were
inaccurately told they would receive increased wages,
similar to cities with higher wages nearly 100 miles
away.\85\
---------------------------------------------------------------------------
\85\Id.
Mr. Carew was forced to temporarily shut down portions of his
business to educate supervisors and managers to ensure they did
not violate the NLRA and to counter misinformation.\86\
---------------------------------------------------------------------------
\86\Id.
---------------------------------------------------------------------------
At the same hearing, Larry Getts, an employee of the Dana
Corporation, described his experience with union organizers:
[Organizers stated] that our shop would make the same
as the workers in the other--much larger--Fort Wayne
plant. . . . [T]hat did not seem plausible because we
were making twelve dollars an hour, and in Fort Wayne
they were making twenty-one dollars an hour. Of course,
much of what they told us proved to be false, but it's
fair to say we weren't lacking information from union
officials.\87\
---------------------------------------------------------------------------
\87\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 2 (2011)
(written testimony of Larry Getts) [hereinafter Getts Testimony].
While Mr. Getts stated he and his fellow employees would have
appreciated hearing the views of his employer, he did not have
access to a robust debate.\88\ His employer had signed a
neutrality agreement.\89\ Since he and his fellow employees
were not hearing opposing points of view, Mr. Getts took it
upon himself to research and verify everything they were
told.\90\
---------------------------------------------------------------------------
\88\Id.
\89\Id.
\90\Id.
---------------------------------------------------------------------------
The expedited timeframe for representational elections
contemplated in the NLRB's February 6, 2014, proposed rule will
effectively eliminate employer speech and deprive employees of
the right to make a fully informed decision on whether to be
represented by a labor organization.
Increased controversy during representational elections
The new Statement of Positions, combined with the new
timeframe for the start of the pre-election hearing and delays
in unit composition determinations, will increase conflict
between labor and management during representational elections,
thereby decreasing the number of election agreements and
increasing costs for employers and taxpayers.
As outlined above, the proposed rule will require parties
to complete a Statement of Positions within seven days of
receiving the election petition. With few exceptions, failure
to state a position will preclude a party from raising the
issue at the pre-election hearing. Robert Sullivan, testifying
on behalf of the Retail Industry Leaders Association (RILA) at
the October 12, 2011, hearing, stated that these requirements
``will wreak havoc with small and large employers.''\91\ Small
employers will have access to factual information, but they
will not have in-house experts to evaluate the legal
issues.\92\ In contrast, large employers will have the
advantage of having in-house experts or access to outside
experts, but their size will complicate legal issues.\93\
---------------------------------------------------------------------------
\91\H.R. 3094, The Workforce Democracy and Fairness Act, Hearing
before the Committee on Education and the Workforce, 112th Cong., 1st
Sess. at 8 (2012) (written testimony of Robert Sullivan) [hereinafter
Sullivan Testimony].
\92\Id.
\93\Id. at 9.
---------------------------------------------------------------------------
This situation has been further complicated by the
Specialty Healthcare decision. At the Committee on Education
and the Workforce's March 19, 2014, hearing entitled ``Culture
of Union Favoritism: The Return of the NLRB's Ambush Election
Rule,'' labor attorney Doreen Davis highlighted the difficulty
of determining whether employees share an ``overwhelming
community of interest'' and questioned whether seven days
provided sufficient time to prepare for the pre-election:
[U]nder the current rules, sometimes we are required
to [prepare for the pre-election hearing] as soon as 10
days [after the petition for election is filed], but
not 7 days, and under the current rules, we can
litigate at the pre-election conference. . . . We
haven't waived issues that weren't raised in the pre-
election conference. . . . Under the new rules, there
would be no opportunity to do that, unless you had
stated it in your statement of position, which is due
[] no later than 7 days after the petition is filed. So
it is very challenging for small employers. It is
equally challenging for large employers, because as an
outside counsel, I have to learn their business, how it
operates, which group of employees interact with whom,
which employees have a community of interest with
others. Do they have similar wages, hours, working
conditions, supervision? Is what they do at that
company related to what another employee does and how?
There are many things that have to be learned in order
to effectively represent an employer in these kinds of
proceedings, and that is all being very much short-
circuited under these proposed rules.\94\
---------------------------------------------------------------------------
\94\Culture of Union Favoritism: The Return of the NLRB's Ambush
Election Rule, Hearing before the House Education and the Workforce
Committee, 113th Cong., 2nd Sess. (2014).
With only seven days to prepare the Statement of Positions
for the start of the pre-election hearing, there is little
opportunity for election agreements.\95\ To ensure no issues
are waived, employers will spend their time preserving their
positions rather than working with the regional director to
reach a voluntary election agreement.\96\ Former NLRB Chairman
Schaumber stated that ``the sum total of these rules is you are
going to have far fewer pre-election agreements.''\97\ Unable
to secure election agreements, the NLRB will be forced to hold
more pre-election hearings on every possible issue in
controversy, increasing both taxpayer and employer legal costs.
---------------------------------------------------------------------------
\95\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 44 (2011).
\96\Id.
\97\Rushing Union Elections: Protecting the Interests of Big Labor
at the Expense of Workers' Free Choice, Hearing before the Education
and the Workforce Committee, 112th Cong., 1st Sess. at 78-79 (2011).
---------------------------------------------------------------------------
Delaying unit composition issues until after the election
could increase the number of rerun elections. Pro-union
activity by supervisors may taint the election if employees
falsely conclude that the employer favors the union or if
employees support the union out of fear of retaliation.\98\ In
these cases, the Board may set aside an election. Undoubtedly,
pro-union activity by supervisors improperly included in the
bargaining unit will be more common under the proposed rules,
resulting in more elections being set aside. In cases where the
character or scope of the bargaining unit changes
significantly, a number of courts have ordered a new election,
finding that employees were effectively denied the right to
make an informed choice in the representational election.\99\
Every rerun election and unfair labor practice charge will cost
taxpayer dollars and increase employer legal costs.
---------------------------------------------------------------------------
\98\Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st Cir. 1981).
\99\NLRB v. Lorimar Productions, Inc., 771 F.2d 1294 (9th Cir.
1985); NLRB v. Beverly Health and Rehabilitation Services, 120 F.3d 262
(4th Cir. 1977).
---------------------------------------------------------------------------
Fragmentation of the workforce
The new standard for determining the composition of an
appropriate bargaining unit adopted in Specialty Healthcare
will allow unions to gerrymander the bargaining unit, encourage
incremental organizing of units that support unionization, and
lead to fragmentation in the workplace. As noted above, under
the new standard, regional directors will be compelled to
approve any unit supported by the union, and employer
challenges will be difficult, if not impossible, permitting
unions to limit organizing to those employees that support the
union.\100\ Instead of one unit, employers will have to bargain
with multiple units.
---------------------------------------------------------------------------
\100\Specialty Healthcare, 357 NLRB No. 83, 19.
---------------------------------------------------------------------------
Fragmentation will increase labor costs. As the number of
units within a business increases, labor costs and the risk of
strikes increase. Rather than negotiating once every three
years, the employer may be forced to negotiate collective
bargaining agreements every year or multiple times a year. Each
negotiation includes the possibility of a strike, disrupting
operations and damaging customer relations.\101\
---------------------------------------------------------------------------
\101\Sullivan Testimony at 4.
---------------------------------------------------------------------------
Moreover, this new standard is detrimental to workers.
Drawing lines between departments limits flexibility and
employee opportunities. As explained by Robert Sullivan during
the October 12, 2011, Committee on Education and the Workforce
hearing, if employees are divided by department, such as
sporting goods divided from housewares, employers will not be
able to move employees between departments in response to
changes in demand, and employees will not be able to pick up
shifts in other departments.\102\ Additionally, opportunities
for advancement into management would be limited without cross-
training.\103\
---------------------------------------------------------------------------
\102\Id.
\103\Id.
---------------------------------------------------------------------------
LEGISLATION IS NEEDED TO ADDRESS THE ACTIONS OF THE NATIONAL LABOR
RELATIONS BOARD
Congress is responsible for establishing and revising, as
necessary, standards in federal labor law. The NLRB's decision
in Specialty Healthcare and its February 6, 2014, proposed
election procedures will limit employee free choice and
employer free speech and fragment the workforce. The Workforce
Democracy and Fairness Act is a narrow reversal of the NLRB's
August 26, 2011, decision in Specialty Healthcare and preempts
the NLRB's February 6, 2014, proposed rule governing election
procedures, without upsetting other standards under current
law.
To limit proliferation and fragmentation of bargaining
units, unless otherwise stated in the Act and excluding
bargaining unit determinations promulgated through rulemaking
effective prior to August 25, 2011 (acute health care
facilities),\104\ the legislation codifies the test used prior
to the Board's holding in Specialty Healthcare. Bargaining
units will again be comprised of employees that share a
``sufficient community of interest.'' In determining whether
employees share a ``sufficient community of interest,'' the
Board will weigh eight factors, including similarity of wages,
working conditions, and skills. The Board will not exclude
employees from the unit unless the interests of the group
sought are sufficiently distinct from those of included
employees to warrant the establishment of a separate unit.
---------------------------------------------------------------------------
\104\Acute care is a branch of secondary health care where a
patient receives active but short-term treatment for a severe injury or
episode of illness, an urgent medical condition, or during recovery
from surgery.
---------------------------------------------------------------------------
To ensure parties can dispute union-proposed bargaining
units, the Workforce Democracy and Fairness Act will codify the
test used prior to Specialty Healthcare. Any party seeking to
enlarge the proposed bargaining unit must demonstrate that
employees in the larger unit share a ``sufficient community of
interest'' with those in the proposed unit, not an
``overwhelming community of interest.'' Taken together, these
provisions of the Workforce Democracy and Fairness Act will
limit fragmentation, ensure employer flexibility and greater
employee opportunities, and reduce labor costs.
The Workforce Democracy and Fairness Act will also address
the shortcomings of the NLRB's proposed rule that changes union
election procedures. More specifically, the Act will address:
Voter Eligibility. To ensure employees and employers know
who will be in their bargaining unit and avoid complications on
eligibility, i.e., whether an employee is a supervisor, the
Board shall determine the appropriate bargaining unit prior to
an election.
Scheduling of Pre-Election Hearing. The regional director
will have discretion as to when the pre-election hearing shall
begin, but parties will have at least 14 days to prepare for
the pre-election hearing. Employers will have at least 14 days
to hire an attorney, identify issues, and prepare their case
for the pre-election hearing. The 14-day time period gives
unions, employers, and the NLRB an opportunity to compromise
and reach an election agreement.
Identifying Issues in Dispute. Employers and unions will be
allowed to raise independently any relevant and material issue
or assert any relevant and material position at any time prior
to the close of the hearing. Employers and unions will be free
to raise issues as the hearing record develops, ensuring a fair
and effective pre-election hearing. To ensure parties do not
inappropriately delay elections, issues traditionally excluded
from pre-election hearings, such as the eligibility of
employees for union membership, may only be raised after the
election.
Timing of Election. Providing the time necessary for
employees to understand the costs and benefits of unionization
is essential to free choice. In 1959, then-Senator John F.
Kennedy stated during the debate over amendments to the NLRA
that at least 30 days were required between the petition's
filing and the election to ``safeguard against rushing
employees into an election where they are unfamiliar with the
issues.''\105\ For all petitions filed in 2013, the median time
from the filing of a petition to an election was 39 days.\106\
Under the legislation, the NLRB will conduct an election as
soon as practicable, but no less than 35 calendar days
following the filing of an election petition. Employers will
have time to educate employees, and employees will have time to
effectively judge whether they wished to be represented by a
union.
---------------------------------------------------------------------------
\105\Cong. Rec. 5361 (1959).
\106\Median Days from Petition to Election, National Labor
Relations Board, available at
http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/
median-days-petition-election (last visited May 28, 2014).
---------------------------------------------------------------------------
Post-election Board Review. To ensure uniformity and due
process, parties may petition the Board for post-election
review of the regional director's decision.
In sum, the Workforce Democracy and Fairness Act will
ensure employers have adequate time to communicate with their
employees and employees have the time and information necessary
to make a fully-informed decision as to unionization.
Conclusion
Over the last several years, the NLRB has issued multiple
decisions and rules intended to unbalance labor relations to
benefit organized labor. The two most significant examples are
the Board's holding in Specialty Healthcare and its February 6,
2014, proposed rule regarding election procedures. Together,
these actions will fragment workplaces, increase labor costs
and strife, and limit employer free speech and employee free
choice. The Workforce Democracy and Fairness Act will return
balance to labor relations by creating a fair election process
for unions, employers, and employees.
Section-by-Section Analysis
The following is a section-by-section analysis of the
Amendment in the Nature of a Substitute to H.R. 4320 as offered
by Chairman Kline and reported favorably by the committee.
Section 1. Provides that the short title is the ``Workforce
Democracy and Fairness Act.''
Section 2. Amends the National Labor Relations Act to
reverse the National Labor Relations Board's decision in
Specialty Healthcare and Rehabilitation of Mobile and preempt
its February 6, 2014, proposed changes to representational
election procedures.
First, this section outlines the test used to determine the
appropriate bargaining unit prior to the election. To determine
whether employees share a sufficient community of interest, the
Board will consider eight factors: (1) similarity of wages,
benefits, and working conditions; (2) similarity of skills and
training; (3) centrality of management and common supervision;
(4) extent of interchange and frequency of contact between
employees; (5) integration of the work flow and
interrelationship of the production process; (6) the
consistency of the unit with the employer's organizational
structure; (7) similarity of job functions and work; and (8)
the bargaining history in the particular unit and the industry.
To avoid the proliferation or fragmentation of bargaining
units, employees shall not be excluded from the unit unless the
interests of the group sought are sufficiently distinct from
those of other employees to warrant the establishment of a
separate unit.
Second, this section sets the number of days from the
filing of the petition upon which the pre-election hearing may
begin and the representational election may be held. Parties
will have at least 14 days from the date of the filing of the
petition to prepare for the pre-election hearing. Secret ballot
elections will be held as soon as practicable, but no less than
35 days following the filing of an election petition.
Third, this section lays out certain aspects of the pre-
election hearing. The pre-election hearing shall be non-
adversarial. The hearing officer is charged with the
responsibility of identifying any relevant and material pre-
election issues and thereafter making a full record thereon.
The scope of relevant and material pre-election issues is
defined. Finally, it makes clear that parties may raise any
relevant and material pre-election issue at any time prior to
the close of the hearing.
Fourth, this section guarantees an opportunity for Board
review of representational election issues while ensuring that
elections are not delayed. The Board must continue to rule on
each pre-election issue not resolved before the election and
any additional issue pertaining to the conduct or results of
the election. However, to avoid election delay, such review
shall occur after the election.
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. 4320 will ensure employee free choice, employer
free speech, and workforce cohesion.
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. 4320 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. 4320 are to ensure employee free choice, employer
free speech, and workforce cohesion.
Duplication of Federal Programs
No provision of H.R. 4320 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. 4320 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. 4320 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. 4320, the
Workforce Democracy and Fairness Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley Anthony.
Sincerely.
Robert A. Sunshine
(For Douglas W. Elmendorf, Director).
Enclosure.
H.R. 4320--Workforce Democracy and Fairness Act
H.R. 4320 would amend the National Labor Relations Act to
require the National Labor Relations Board to delay, for at
least 14 days after a petition is filed, hearings on petitions
by employees or employers for representation in collective
bargaining. The bill also would set certain requirements for
pre-election hearings. In addition, secret ballot elections
could be held no earlier than 35 days after an election
petition is filed. CBO estimates that enacting H.R. 4320 would
not affect the federal budget.
Enacting H.R. 4320 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
The bill contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Christina Hawley
Anthony. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
Committee Cost Estimate
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 4320.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
NATIONAL LABOR RELATIONS ACT
* * * * * * *
representatives and elections
Sec. 9. (a) * * *
(b) [The Board shall decide in each case whether, in order to
assure to employees the fullest freedom in exercisiong the
rights guaranteed by this Act, the unit appropriate for the
purposes of collective bargaining shall be the employer unit,
craft unit, plant unit, or subdivision thereof: Provided, That
the Board] (1) In each case, prior to an election, the Board
shall determine, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act, the
unit appropriate for the purposes of collective bargaining.
Unless otherwise stated in this Act, and excluding any
bargaining unit determination promulgated through rulemaking
before August 26, 2011, the unit appropriate for purposes of
collective bargaining shall consist of employees that share a
sufficient community of interest. In determining whether
employees share a sufficient community of interest, the Board
shall consider-- In each case, prior to an election, the Board
shall determine, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act, the
unit appropriate for the purposes of collective bargaining.
Unless otherwise stated in this Act, and excluding any
bargaining unit determination promulgated through rulemaking
before August 26, 2011, the unit appropriate for purposes of
collective bargaining shall consist of employees that share a
sufficient community of interest. In determining whether
employees share a sufficient community of interest, the Board
shall consider--
(A) similarity of wages, benefits, and working
conditions;
(B) similarity of skills and training;
(C) centrality of management and common supervision;
(D) extent of interchange and frequency of contact
between employees;
(E) integration of the work flow and
interrelationship of the production process;
(F) the consistency of the unit with the employer's
organizational structure;
(G) similarity of job functions and work; and
(H) the bargaining history in the particular unit and
the industry.
To avoid the proliferation or fragmentation of bargaining
units, employees shall not be excluded from the unit unless the
interests of the group seeking a separate unit are sufficiently
distinct from those of other employees to warrant the
establishment of a separate unit. Whether additional employees
should be included in a proposed unit shall be determined based
on whether such additional employees and proposed unit members
share a sufficient community of interest, with the sole
exception of proposed accretions to an existing unit, in which
the inclusion of additional employees shall be based on whether
such additional employees and existing unit members share an
overwhelming community of interest and the additional employees
have little or no separate identity.
(2) The Board shall not [(1)] (A) decide that any unit is
appropriate for such purposes if such unit includes both
professional employees and employees who are not professional
employees unless a majority of such professional employees vote
for inclusion in such unit; or [(2)] (B) decide that any craft
unit is inappropriate for such purposes on the ground that a
different unit has been established by a prior Board
determination, unless a majority of the employees in the
proposed craft unit vote against separate representation or
[(3)] (C) decide that any unit is appropriate for such purposes
if it includes, together with other employees, any individual
employed as a guard to enforce against employees and other
persons rules to protect property of the employer or to protect
the safety of persons on the employer's premises; but no labor
organization shall be certified as the representative of
employees in a bargaining unit of guards if such organization
admits to membership, or is affiliated directly or indirectly
with an organization which admits to membership, employees
other than guards.
(c)(1) Whenever a petition shall have been filed, in
accordance with such regulations as may be prescribed by the
Board--
(A) * * *
* * * * * * *
the Board shall investigate such petition and if it has
reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate
hearing upon due notice, but in no circumstances less than 14
calendar days after the filing of the petition. Such hearing
may be conducted by an officer or employee of the regional
office, who shall not make any recommendations with respect
thereto. An appropriate hearing shall be one that is non-
adversarial with the hearing officer charged, in collaboration
with the parties, with the responsibility of identifying any
relevant and material pre-election issues and thereafter making
a full record thereon. Relevant and material pre-election
issues shall include, in addition to unit appropriateness, the
Board's jurisdiction and any other issue the resolution of
which may make an election unnecessary or which may reasonably
be expected to impact the outcome of the election. Parties may
independently raise any relevant and material pre-election
issue or assert any relevant and material position at any time
prior to the close of the hearing. If the Board finds upon the
record of such hearing that such a question of representation
exists, it shall direct an election by secret ballot [and shall
certify the results thereof] to be conducted as soon as
practicable but no earlier than 35 calendar days after the
filing of an election petition. The Board shall certify the
results of the election after it has ruled on each pre-election
issue not resolved before the election and any additional issue
pertaining to the conduct or results of the election.
* * * * * * *
MINORITY VIEWS
H.R. 4320 ATTACKS THE RIGHTS OF WORKERS AND FAILS TO ADDRESS THE URGENT
NEED TO PROTECT WORKERS FROM DISCRIMINATION BASED ON SEXUAL ORIENTATION
OR GENDER IDENTITY AND PROTECT AMERICAN MINERS AT WORK
Committee Democrats oppose and voted unanimously against
H.R. 4320, the ``Workforce Democracy and Fairness Act,'' which
mandates delays in the National Labor Relations Board (NLRB)
process by stating that no election may occur sooner than 35
days after the filing of a petition. However, there is no limit
on how long an election may be delayed. By contrast, the
Board's proposed rule would eliminate the automatic 25-30 day
delay, and instead allow disputes to be resolved post-election.
The bill also requires a 14 day delay prior to a hearing, which
is twice the minimum mandated by the Republican-controlled
board in 2002. In contrast, the proposed NLRB rule requires a
hearing to begin 7 days after the hearing notice is served. The
bill also requires all election-related issues to be resolved
by the Board prior to an election, which would promote and
reward litigation and frivolous claims by management seeking to
prevent representation elections.
H.R. 4320 is a misguided attempt to prevent reasonable
reforms to the representation election process. It will create
delay and as a result, prevent representation elections. This
bill does nothing to improve the lives of struggling workers,
but instead, it impedes workers' access to the election
representation process that protects workers' rights. Committee
Democrats are united in opposition to H.R. 4320 and will
continue to fight for the rights of workers and their families.
REPUBLICAN AMENDMENT TO H.R. 4320
Representative Price offered an amendment to H.R. 4320 on
the determination of appropriate units for collective
bargaining. This amendment was offered in response to the
August 2011 Specialty Healthcare decision, which dealt with a
demand by a nursing home operator to add maintenance
assistants, cooks, data entry clerks, business office
clericals, and receptionists to a union petition of certified
nursing assistants. The Board held that the employer had the
burden of showing that there is an ``overwhelming community of
interest'' between the employees the employer wishes to add and
the bargaining unit. The Majority has expressed concerns that
this decision will give rise to ``micro-bargaining units'' that
are easier to organize and difficult for employers to manage.
However, these concerns are unfounded as there has not been any
appreciable impact on the size of bargaining units. Senior
Democratic Member Miller offered a second degree amendment to
this amendment discussed below.
COMMITTEE DEMOCRATS OFFER AMENDMENTS TO H.R. 4320 TO PREVENT WORKPLACE
DISCRIMINATION AND PROMOTE SAFE WORKING CONDITIONS IN OUR NATION'S
MINES
H.R. 4320 is misguided not only because it creates
unnecessary delays and prevents workers from accessing the
election representation process, but also because it neglects
the real problems workers face. In response, the Democrats
offered H.R. 1373, the ``Robert C. Byrd Mine Safety Protection
Act of 2013,'' and H.R. 1755, the ``Employment Non-
Discrimination Act of 2013'' (ENDA), as amendments to H.R.
4320. These Democratic substitutes address discrimination based
on sexual orientation and gender identity and miners' health
and safety concerns in the workplace.
Senior Democratic Member Miller also offered a second
degree amendment to strike the text of Representative Price's
amendment and replace it with language that would prevent H.R.
4320 from taking place until the Bureau of Labor Statistics'
Occupational Employment Statistics Survey showed that the
minimum wage was at least $10.10 an hour. This amendment would
effectively prevent H.R. 4320 from being enacted until the
minimum wage reaches $10.10. Workers in this country continue
to struggle to get by without adequate minimum wage
protections. A $10.10 minimum wage would provide a fair wage
for working Americans and stimulate consumer demand and our
economy.
The second degree amendment failed 12-20.
Representative Polis introduced an amendment that would
strike the text of H.R. 4320 and replace it with the text of
H.R. 1755, the ``Employment Non-Discrimination Act of 2013''
(ENDA). ENDA would prohibit discrimination in hiring and
employment on the basis of sexual orientation or gender
identity by employers with at least 15 employees. Twenty one
states and the District of Columbia have passed laws
prohibiting employment discrimination based on sexual
orientation, and 17 states and D.C. also prohibit
discrimination based on gender identity. This legislation has
202 cosponsors in the House, and the Senate voted 64 to 32 to
pass their version of ENDA. Despite widespread support on this
issue, the Majority in the House has failed to take action on
this important civil rights bill.
The amendment was ruled non-germane. Representative Polis
appealed the ruling of the chair, and the vote to table the
appeal the ruling of the chair was adopted 15-20.
Senior Democratic Member Miller introduced an amendment
that would replace the text of H.R. 4320 with H.R. 1373, the
``Robert C. Byrd Mine Safety Protection Act,'' which provides
comprehensive reforms that will help protect the lives and
well-being of American miners. The investigation of the Upper
Big Branch mine explosion on April 5, 2010--the deadliest U.S.
coal mine disaster in almost 40 years--revealed weaknesses in
our laws protecting miners, and this bill was introduced in
response. H.R. 1373 would update our nation's mine health and
safety laws by giving MSHA the ability to effectively protect
miners' lives, hold mine operators accountable for putting
their workers in unnecessary danger, and strengthen
whistleblower protections for miners who speak out about unsafe
conditions. This amendment includes measures that would
increase the consequences for operators who intimidate miners
to discourage them from stopping unsafe work or reporting
hazards to MSHA, protect miners if MSHA temporarily closes a
mine due to safety hazards by ensuring miners can receive pay
for up to 60 days, and deters mine operators from providing
advanced notice of inspections, which allows them to hide
violations and hazards from enforcement personnel. While H.R.
4320 weakens the ability of workers to advocate for better
working conditions by making it harder for workers to choose to
form a union, this legislation would work to improve the health
and safety of miners on the job.
The amendment was ruled non-germane. Senior Democratic
Member Miller appealed the ruling of the chair, and the vote to
table the appeal of the ruling of the chair on the amendment
was adopted 12-20.
CONCLUSION
H.R. 4320 blocks commonsense reforms that would streamline
and modernize the current election representation process by
creating unnecessary delay. This legislation does nothing to
better workers' lives, but instead hinders their ability to
access the election representation process and exercise their
right of freedom of association. Committee Democrats are united
in opposition to H.R. 4320 and will continue to fight for the
rights of workers and their families.
George Miller.
Joe Courtney.
John F. Tierney.
Timothy H. Bishop.
Robert C. ``Bobby'' Scott.
Jared Polis.
David Loebsack.
Marcia L. Fudge.
Raul M. Grijalva.
Rush Holt.
Ruben Hinojosa.
Carolyn McCarthy.
Mark Pocan.
Susan A. Davis.
Mark Takano.
Suzanne Bonamici.
Frederica S. Wilson.