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113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-653

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



 
                  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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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

               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\
---------------------------------------------------------------------------
    \12\29 U.S.C. Sec. 159.
    \13\Notice of Proposed Rulemaking, Representation--Case Procedures, 
79 Fed. Reg. 7319 (Feb. 6, 2014).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\National Labor Relations Board Casehandling Manual para. 
11002.2-11002.3.
    \15\Id. para. 11003.1 and 11023.1.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                 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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \51\Id. at 7330.
    \52\Id. at 7331.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \53\Id. at 7333.
    \54\Id.
    \55\29 C.F.R. 101.21(d).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

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.