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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-583

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



 
                    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \11\NLRB v. Savair Mfg, 414 U.S. 270, 278 (1973).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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].

---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \23\Getts Testimony at 2-3.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
     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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \38\Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945).
---------------------------------------------------------------------------
    The ways individuals communicate has changed significantly 
since 1966 when the NLRB created the Excelsior list. At the 
time, traditional mail was 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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                               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.
---------------------------------------------------------------------------
    \43\Notice of Proposed Rulemaking, Representation--Case Procedures, 
79 Fed. Reg. 7318 (Feb. 6, 2014).
---------------------------------------------------------------------------

                      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.