49–006 

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
2 

1 357 NLRB No. 83, 12 (Aug. 26, 2011). 

(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— 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 preVerDate Sep 11 2014 22:19 Dec 22, 2014 Jkt 049006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR653.XXX HR653

asabaliauskas on DSK5VPTVN1PROD with HEARING
3 

pare 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. 

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 deVerDate Sep 11 2014 22:19 Dec 22, 2014 Jkt 049006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR653.XXX HR653

asabaliauskas on DSK5VPTVN1PROD with HEARING
4 

cisions, 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. 


asabaliauskas on DSK5VPTVN1PROD with HEARING
5 

2 79 Fed. Reg. 7318. 

3To 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. 

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. 

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) 


asabaliauskas on DSK5VPTVN1PROD with HEARING
6 

4The 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. § 152(2). 5 29 U.S.C. § 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. § 157. 

guarantee workers have the ability to make a fully informed decision in a union 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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
7 

8 Id. § 158. 9 Id. § 158(c). 10 Id. § 159(d). 11 NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973). 12 29 U.S.C. § 159. 13 Notice of Proposed Rulemaking, Representation—Case Procedures, 79 Fed. Reg. 7319 (Feb. 

6, 2014). 14 National Labor Relations Board Casehandling Manual ¶ 11002.2–11002.3. 15 Id. ¶ 11003.1 and 11023.1. 16While 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. ¶ 11009. 18 Id. ¶ 11009.1. 19 Id. ¶ 11009.2. 20 Id. ¶ 11012. 

new union unfair labor practices,8 codified employer free speech,9

and made changes to the determination of bargaining units.10

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

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

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

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
8 

21 Id. ¶ 11084. 22 Id. ¶ 11084.1. 23 Id. 24Percentage of Elections Conducted Pursuant to Election Agreements in FY13, National 

Labor Relations Board, available at http://www.nlrb.gov/news-outreach/graphs-data/petitionsand-elections/percentage-elections-conducted-pursuant-election (last visited Oct. 2, 2014). 25 National Labor Relations Board Casehandling Manual ¶ 11181. 26 Id. 27 79 Fed. Reg. 7324. 28 National Labor Relations Board Casehandling Manual ¶ 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 ¶ 11207. 32 Id. ¶ 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). 35Seaboard Marine, Ltd., 327 NLRB No. 108 (1999), Brand Precision Services, 313 NLRB 657 

(1994); Transerv Systems, 311 NLRB 766 (1993). 

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

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
9 

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). 37General Counsel Memorandum 13–01, 7 (Jan. 11, 2013). 38 National Labor Relations Board Casehandling Manual ¶ 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. 42Median Days from Petition to Election, National Labor Relations Board, available at 

http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petitionelection (last visited Oct. 2, 2014). 43Percentage 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). 44General 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-electionpetitions-closed-fy13 (last visited Oct. 2, 2014). 46 79 Fed. Reg. 7318. 

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

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

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

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—overVerDate Sep 11 2014 22:19 Dec 22, 2014 Jkt 049006 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\HR653.XXX HR653

asabaliauskas on DSK5VPTVN1PROD with HEARING
10 

47 Id. 48 Id. at 7328. 49 Id. 50 Id. 51 Id. at 7330. 52 Id. at 7331. 53 Id. at 7333. 54 Id. 55 29 C.F.R. 101.21(d). 56 Id. at 7337. 57 76 Fed. Reg. at 36833. 

turning 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. 

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

The Statement of Positions will solicit the parties’ position on (1) 

the Board’s jurisdiction; (2) the appropriateness of the petitionedfor 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

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

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
11 

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- 

15307lpil2.pdf. 61 357 NLRB No. 83 (Aug. 26, 2011). 62Such 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. 70 361 NLRB No. 4 (2014). 

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. 

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
12 

71Macy’s at 1. 72 Bullocks, Inc., d/b/a I. Magnin & Co., 119 NLRB 642 (1957). 73Macy’s at 22–23. 74Member Miscimarra dissented and Member Johnson recused himself. 75Macy’s at 19. 76The Neiman Marcus Group, Inc., 361 NLRB No. 11, 3 (2014). 77 29 U.S.C. §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.’’). 78 Chamber of Commerce v. Brown, 554 U.S. 60, 67–68 (2008). 

appropriate unit for collective bargaining.71 Despite past precedent 

that the appropriate unit is a store-wide unit72 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. 

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: 

From one vantage, § 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


asabaliauskas on DSK5VPTVN1PROD with HEARING
13 

79 76 Fed. Reg. 36831 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. 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. 85 Id. 86 Id. 

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 preelection hearing, leaving as little as three days to educate employees and rebut misinformation. 

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

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: 

[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

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
14 

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]. 88 Id. 89 Id. 90 Id. 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. 

of what they told us proved to be false, but it’s fair to say 

we weren’t lacking information from union officials.87

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

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

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
15 

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). 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). 98Fall 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). 

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

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. 

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. 

Fragmentation of the workforce 

The new standard for determining the composition of an appropriate bargaining unit adopted in Specialty Healthcare will allow 


asabaliauskas on DSK5VPTVN1PROD with HEARING
16 

100Specialty Healthcare, 357 NLRB No. 83, 19. 101Sullivan Testimony at 4. 102 Id. 103 Id. 104 Acute care is a branch of secondary health care where a patient receives active but shortterm treatment for a severe injury or episode of illness, an urgent medical condition, or during 

recovery from surgery. 

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. 

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

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

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 suffiVerDate Sep 11 2014 22:19 Dec 22, 2014 Jkt 049006 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\HR653.XXX HR653

asabaliauskas on DSK5VPTVN1PROD with HEARING
17 

105 Cong. Rec. 5361 (1959). 106Median Days from Petition to Election, National Labor Relations Board, available at 

http://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petitionelection (last visited May 28, 2014). 

ciently distinct from those of included employees to warrant the establishment of a separate unit. 

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. 

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. 


asabaliauskas on DSK5VPTVN1PROD with HEARING
18 

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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
19 

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. 


asabaliauskas on DSK5VPTVN1PROD with HEARING
20 


asabaliauskas on DSK5VPTVN1PROD with HEARINGInsert offset folio 21 here HR653.001
21 


asabaliauskas on DSK5VPTVN1PROD with HEARINGInsert offset folio 22 here HR653.002
22 


asabaliauskas on DSK5VPTVN1PROD with HEARINGInsert offset folio 23 here HR653.003
23 


asabaliauskas on DSK5VPTVN1PROD with HEARINGInsert offset folio 24 here HR653.004
24 


asabaliauskas on DSK5VPTVN1PROD with HEARINGInsert offset folio 25 here HR653.005
25 

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. 


asabaliauskas on DSK5VPTVN1PROD with HEARING
26 

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) øThe 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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
27 

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 ø(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 ø(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 ø(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 


asabaliauskas on DSK5VPTVN1PROD with HEARING
28 

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 øand 

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. 

* * * * * * * 


asabaliauskas on DSK5VPTVN1PROD with HEARING
(29) 

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. 


asabaliauskas on DSK5VPTVN1PROD with HEARING
30 

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 measVerDate Sep 11 2014 22:19 Dec 22, 2014 Jkt 049006 PO 00000 Frm 00030 Fmt 6604 Sfmt 6604 E:\HR\OC\HR653.XXX HR653

asabaliauskas on DSK5VPTVN1PROD with HEARING
31 

ures 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. 

Æ 


asabaliauskas on DSK5VPTVN1PROD with HEARING