69–006 

115TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 115–326 

WORKFORCE DEMOCRACY AND FAIRNESS ACT 

SEPTEMBER 25, 2017.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Ms. FOXX, 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. 2776] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Education and the Workforce, to whom was 

referred the bill (H.R. 2776) 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 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 

2 

1 357 NLRB 934, 940 (2011) 

2 79 Fed. Reg. at 74308. 

(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, no employee shall 

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’’. 

PURPOSE

The Workforce Democracy and Fairness Act, H.R. 2776, reverses 

the National Labor Relations Board’s (NLRB or Board) August 26, 

2011, decision in Specialty Healthcare and Rehabilitation Center of 

Mobile 1 (Specialty Healthcare), and reverses the NLRB’s December 

15, 2014, final representation-case procedures rule 2 (the ambush 

election rule). The legislation ensures cohesion in the workplace, 

employee free choice, and employer free speech, without upsetting 

any other current law. 

COMMITTEE ACTION

112TH CONGRESS

Subcommittee Hearing on Concerns about the NLRB’s Harmful Actions 

On February 11, 2011, the Subcommittee on Health, Employment, Labor, and Pensions (HELP) of the Committee on Education 

and the Workforce (Committee) held a hearing on ‘‘Emerging 

3 

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 that mandated 

employers display 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. 

Committee Hearing on NLRB’s Unprecedented Rulemaking 

On July 7, 2011, the Committee heard testimony on the NLRB’s 

proposed election procedure regulation in a hearing on ‘‘Rushing 

Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice.’’ Witnesses agreed the cumulative 

changes in 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. 

Committee Hearing on NLRB’s Decision to Disenfranchise Employees in Union Elections 

On September 22, 2011, the Committee 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. Additionally, the Board finalized a rule requiring almost every employer to post a vague, union-biased notice on employee rights under the National Labor Relations Act (NLRA). The 

Board’s unbridled overreach of authority demanded a complete examination by the Committee. Witnesses were Mr. Curtis L. Mack, 

Partner, McGuireWoods 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, then-Chairman John Kline (R–MN) introduced H.R. 3094, the Workforce Democracy and Fairness Act, with 

26 cosponsors. Recognizing the NLRB had gone far beyond its 

statutorily assigned role as an adjudicative body designed to implement congressional intent under the NLRA, legislation was necessary to (1) reinstate the traditional standard for determining 

4 

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 fully informed decisions in union elections; and (4) safeguard employee privacy by allowing workers to decide the type of personal information provided 

to a union. 

Committee Legislative Hearing on H.R. 3094, Workforce Democracy 

and Fairness Act 

On October 12, 2011, the Committee 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 Passage of H.R. 3094, Workforce Democracy and Fairness Act 

On October 26, 2011, the Committee considered H.R. 3094. ThenChairman Kline offered an amendment in the nature of a substitute to clarify that years of labor policies affecting the acute 

health care industry remain in place; limit pre-election issues to 

those that are relevant and material; and reaffirm the Board’s responsibility to grant or deny requests for review of regional directors’ decisions before an election. Nine additional amendments 

were offered and debated; however, no amendments beyond the 

substitute were adopted. The Committee favorably reported the 

bill, as amended, to the House of Representatives by a vote of 23 

to 16. 

House Passage of H.R. 3094, Workforce Democracy and Fairness 

Act 

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 to 188. The Senate 

failed to act on the bill before the conclusion of the 112th Congress. 

113TH CONGRESS

Subcommittee Hearing on Union Organizing 

On September 19, 2013, the HELP Subcommittee held a hearing 

on ‘‘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, Proskauer Rose, WashVerDate Sep 11 2014 05:21 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
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3 Representation-Case Procedures, 79 Fed. Reg. 74308, 7318 (Dec. 15, 2014). 

ington, D.C.; and, Mr. Stefan J. Marculewicz, Shareholder, Littler 

Mendelson, Washington, D.C. 

Committee Hearing on the NLRB’s Proposed Ambush Election Rule 

On March 5, 2014, the Committee held a hearing entitled ‘‘Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule.’’ Witnesses testified the proposed ambush election rule 3

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 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, Esq., 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, then-Chairman Kline introduced H.R. 4320, 

the Workforce Democracy and Fairness Act, with 20 cosponsors. 

The legislation largely mirrored H.R. 3094, the Workforce Democracy and Fairness Act, as introduced in the 112th Congress. Recognizing the NLRB’s ambush election rule would fundamentally alter 

representational elections to the detriment of employers and employees, provisions were added to (1) ensure employers were able 

to participate in a fair union election and (2) guarantee workers 

had the ability to make a fully informed decision in a union election. 

Committee Passage of H.R. 4320, Workforce Democracy and Fairness Act 

On April 9, 2014, the Committee considered H.R. 4320, the Workforce Democracy and Fairness Act. Chairman Kline offered an 

amendment in the nature of a substitute, making a technical 

change to clarify the legislation applies to representational elections. Four additional amendments were offered and debated. Rep. 

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 to 13. The Committee favorably reported 

H.R. 4320, as amended, to the House of Representatives by a vote 

of 21 to 14. The Senate failed to act on the bill before the end of 

the 113th Congress. 

Committee Hearing on Unionization of Student Athletes 

On May 8, 2014, the Committee held a hearing entitled ‘‘Big 

Labor on College Campuses: Examining the Consequences of 

Unionizing Student Athletes.’’ Witnesses testified the recent NLRB 

ruling declaring student athletes to be employees under the NLRA 

risked bringing micro-unions and ambush elections to college and 

university campuses further perpetuating the issues seen in noncollegial settings. Witnesses were the Honorable Ken Starr, PresiVerDate Sep 11 2014 05:21 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00005 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
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dent and Chancellor, Baylor University, Waco, Texas; Mr. Bradford 

L. Livingston, Partner at Seyfarth Shaw LLP, Chicago, Illinois; Mr. 

Andy Schwarz, Partner, OSKR LLC, Emeryville, California; Mr. 

Bernard M. Muir, Director of Athletics, Stanford University, Stanford, California; and, Mr. Patrick C. Eilers, Managing Director, 

Madison Dearborn Partners, Chicago, Illinois. 

Subcommittee Hearing on Recent NLRB Decisions 

On June 24, 2014, the HELP Subcommittee held a hearing on 

‘‘What Should Workers and Employers Expect Next from the National Labor Relations Board?’’ Witnesses testified NLRB actions, 

including decisions restricting employee access to secret ballots, imposing ambush elections, and encouraging micro-unions, had generated uncertainty and confusion for employers, hurting job creation and growth. Witnesses were Mr. Seth H. Borden, Partner, 

McKenna Long & Aldridge LLP, New York, New York; Mr. James 

Coppess, Associate General Counsel, AFL–CIO, Washington, D.C.; 

Mr. G. Roger King, Of Counsel, Jones Day, Columbus, Ohio; and, 

Mr. Andrew F. Puzder, CEO, CKE Restaurants, Carpinteria, California. 

114TH CONGRESS

Subcommittee Legislative Hearing on H.J. Res. 29, Providing for 

Congressional Disapproval of the Ambush Election Rule 

On March 4, 2015, the HELP Subcommittee held a legislative 

hearing entitled ‘‘H.J. Res. 29, Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule 

submitted by the National Labor Relations Board relating to representation case procedures.’’ The Joint Resolution disapproved and 

nullified the rule submitted by the NLRB and published on December 15, 2014. At the hearing, witnesses testified to the urgent need 

for Congress to overturn the NLRB’s ambush election rule, which 

would have negative consequences for workers and families. Witnesses at this hearing were Ms. Brenda Crawford, Registered 

Nurse, Murrieta, California; Mr. Roger King, Senior Labor and Employment Counsel, on behalf of the Retail Industry Leaders Association, Washington, D.C.; Mr. Arnold E. Perl, Member, Glankler 

Brown PLLC, Memphis, Tennessee, and, Mr. Glenn M. Taubman, 

Staff Attorney, National Right to Work Legal Defense and Educational Foundation, Inc., Springfield, Virginia. 

Introduction of H.R. 1768, Workforce Democracy and Fairness Act 

On April 14, 2015, then-Chairman Kline introduced H.R. 1768, 

the Workforce Democracy and Fairness Act, with two cosponsors. 

The text of H.R. 1768 was identical to that of H.R. 4320 as amended by the Committee in April 2014. 

115TH CONGRESS

Subcommittee Hearing on the Need to Restore Balance to the NLRB 

On February 14, 2017, the HELP Subcommittee held a hearing 

entitled ‘‘Restoring Balance and Fairness to the National Labor Relations Board.’’ Witnesses decried the extreme, partisan decisions of 

the NLRB during the Obama administration, including the ambush 

election rule, and stressed the need for a return to a balance beVerDate Sep 11 2014 05:21 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
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tween workers, employers, and unions in the Board’s rulings. Witnesses at this hearing were Ms. Reem Aloul, BrightStar Care of Arlington, Arlington, Virginia, on behalf of the Coalition to Save Local 

Business; Ms. Susan Davis, Partner, Cohen, Weiss and Simon, 

LLP, New York, New York; Mr. Raymond J. LaJeunesse, Jr., Vice 

President, National Right to Work Legal Defense and Education 

Foundation, Springfield, Virginia; and, Mr. Kurt G. Larkin, Partner, Hunton & Williams LLP, Richmond, Virginia. 

Introduction of H.R. 2776, Workforce Democracy and Fairness Act 

On June 6, 2017, HELP Subcommittee Chairman Tim Walberg 

(R–MI) introduced H.R. 2776, the Workforce Democracy and Fairness Act, with six cosponsors. The text of H.R. 2776 is identical to 

the text of H.R. 1768, which was referred to the Committee in April 

2015 but not acted on prior to the conclusion of the 114th Congress. 

Subcommittee Legislative Hearing on H.R. 2776, H.R. 2775, and 

H.R. 2723 

On June 14, 2017, the HELP Subcommittee held a hearing entitled ‘‘Legislative Reforms to the National Labor Relations Act: H.R. 

2776, Workforce Democracy and Fairness Act; H.R. 2775, Employee 

Privacy Protection Act; and, H.R. 2723, Employee Rights Act.’’ 

Among other topics, witnesses testified about the need for H.R. 

2776 to fix the problems created by the activist-NLRB related to 

the ambush election rule. Witnesses at this hearing were Mr. Seth 

H. Borden, Partner, McGuireWoods LLP, New York, New York; 

Mr. Guerino J. Calemine III, General Counsel, Communications 

Workers of America, Washington D.C.; Ms. Karen Cox, Dixon, Illinois; and, Ms. Nancy McKeague, Senior Vice President and Chief 

of Staff, Michigan Health and Hospital Association, Okemos, Michigan, on behalf of the Society for Human Resource Management. 

SUMMARY

The Workforce Democracy and Fairness Act (1) codifies the traditional standard for determining an appropriate bargaining unit and 

the traditional standard used to challenge a petitioned-for bargaining unit; (2) requires the Board to rule prior to the election on 

challenges to composition of the bargaining unit; (3) ensures employers have at least 14 days to prepare for pre-election hearings; 

(4) allows parties to raise relevant and material pre-election issues 

as pre-election hearing records are developed; (5) provides employees with at least 35 days to consider whether they wish to be represented by a union; and (6) ensures parties may request a postelection Board review of regional directors’ decisions. 

The legislation reverses the NLRB’s August 26, 2011, decision in 

Specialty Healthcare and the NLRB’s ambush election rule. The 

legislation ensures cohesion in the workplace, employee free choice, 

and employer free speech. 

COMMITTEE VIEWS

In 1935, Congress passed the NLRA, guaranteeing the right of 

most private sector employees to organize and select their own repVerDate Sep 11 2014 05:21 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
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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. 

8 Id. § 158. 9 Id. § 158(c). 10 Id. § 159(d). 11 NLRB v. Savair Mfg., 414 U.S. 270, 278 (1973). 12 29 USC § 159. 13 79 Fed. Reg. at 7319. 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. 

resentative.4 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 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

The NLRA established the NLRB as an independent federal 

agency to fulfill two principal functions: (1) prevent and remedy 

employer and union unlawful acts, called unfair labor practices; 

and (2) 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

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, and 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

Previous Representational Election Process 

Prior to the December 2015 ambush election rule, the regional director,16 upon receiving a petition, would issue a notice of hearing 

and serve the following on the employer: the petition, 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 would ordinarily request a list of employees in the petitioned-for unit and their job classifications to determine whether 30 percent of employees were interested in represenVerDate Sep 11 2014 05:21 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
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18 Id. ¶ 11009.1. 19 Id. ¶ 11012. 20 Id. ¶ 11084. (In consent agreements, post-election issues are decided by the regional director. In stipulated agreements, post-election issues are decided by the Board. There are no outstanding issues in full consent election agreements; therefore, no review is necessary.) 21 National Labor Relations Board Casehandling Manual ¶ 11181. 22 Id. 23 79 Fed. Reg. at 7324. 24 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). 25 Id. 26 79 Fed. Reg. at 7325. 27 NLRB, MEDIAN DAYS FROM PETITION TO ELECTION (2017), https://www.nlrb.gov/ 

news-outreach/graphs-data/petitions-and-elections/median-days-petition-election. 28 NLRB, REPRESENTATION PETITIONS (2017), https://www.nlrb.gov/news-outreach/ 

graphs-data/petitions-and-elections/representation-petitions-rc. 

tation and the employer’s position as to the appropriateness of the 

unit described in the petition.18

These official requests by the regional director were then followed up by telephone consultations, meetings, and joint conference 

calls with the parties prior to pre-election hearing to resolve outstanding issues and secure an election agreement.19 If parties 

agreed on representational issues, they could enter into one of 

three types of election agreements: (1) consent election agreement, 

(2) stipulated election agreement, or (3) full consent election agreement.20

In cases where parties could not reach an election agreement, a 

Board agent would conduct a pre-election hearing to develop and 

record evidence upon which the Board could discharge its duties 

under Section 9 of the NLRA.21 The hearing was investigatory and 

non-adversarial.22 Parties could 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.23 The employer could petition for inclusion of 

additional employees in the bargaining unit by showing the additional employees shared a ‘‘sufficient community of interest’’ with 

the petitioned-for unit. 

In most cases, the regional director would 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 preelection hearing was 13 days.24 The median time between the close 

of the pre-election hearing and the regional director’s decision was 

20 days.25

To ensure uniform and consistent application, parties could appeal to the Board the regional director’s pre- and post-election decisions. Unless waived in a pre-election agreement, parties could obtain Board review of the regional director’s disposition of election 

objections and challenges post-election by filing exceptions.26

This previous Board process was effective in expeditiously resolving questions concerning representation while maintaining the 

rights of employees and employers. For all petitions filed in the 

final full year before the new rule went into effect, the median time 

from the filing of a petition to an election was 38 days.27 Additionally, unions won more than two-thirds of representational elections 

in that time period.28

10 

29 79 Fed. Reg. at 7324. 30 Id. 31 Id. at 7328. 32 Id. 33 Id. 34 Id. at 7330. 35 Id. at 7331. 36 Id. at 7333. 

A. The Ambush Election Rule 

In February 2014, in a rare exercise of formal rulemaking, the 

NLRB published a Notice of Proposed Rulemaking, which became 

a final rule on December 15, 2014, and went into effect on April 

14, 2015.29 The rule shortens the length of time in which a union 

representational election can be held to as little as 11 days. The 

rule also requires employers to complete a Statement of Position in 

which the employer must raise all pre-election issues challenging 

the legality of the union’s organizing campaign or forfeit all rights 

to pursue those issues. Additionally, the rule expands the information provided to unions to include employee phone numbers, email 

addresses, and shift times and locations. The rule also delays 

Board review until after the election. Taken together, the rule substantially shortens the time between filing of a petition and the 

election date, and it limits the opportunity for a full evidentiary 

hearing or Board review on contested issues. 

In March 2015, the House and Senate passed a joint resolution 

of disapproval (S.J. Res. 8) of the new rule under the Congressional 

Review Act. The joint resolution was vetoed by President Obama on 

March 31, 2015. 

To speed up the representational election process, the Board’s 

rule: (1) replaced the Questionnaire on Commerce Information with 

a Statement of Position; (2) set pre-election hearings to begin seven 

days after the petition is filed: (3) delayed voter eligibility issues 

until after the election: and (4) made post-election Board review 

discretionary.30

The newly required Statement of Position solicits the parties’ positions 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.31 With few exceptions, issues not raised in the Statement of Position will be 

waived.32 The Statement of Position is due no later than the date 

of the pre-election hearing, that is, seven days from the filing of the 

petition.33

Under the rule, disputes concerning the eligibility or inclusion of 

individual employees that represent less than 20 percent of the 

unit are resolved, if necessary, after the election.34 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.’’ 35

The rule also eliminates pre-election Board review.36 All pre-election rulings not rendered moot remain subject to Board review 

11 

37 Id. 38 29 C.F.R. 101.21(d). 39 Id. at 7337. 40 76 Fed. Reg. at 36833. 41 Id. at 36831. 42 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). 43 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. 44 357 NLRB No. 83 (Aug. 26, 2011). 45Such as employees that make up a job classification, department, or work location. 46 357 NLRB No. 83, 12 (Aug. 26, 2011). 47 Id. at 6. 48 Id. at 12. 49 Id. at 18. 50 Id. at 20. 

post-election.37 Regional directors are no longer required to provide 

at least 25 days between the issuance of the decision and the election to allow Board review.38

The Board’s majority asserted the rule was implemented to ‘‘remove unnecessary barriers to the fair and expeditious resolution of 

questions concerning representation.’’ 39 However, the Board made 

no ‘‘attempt to identify particular problems in cases where the 

process has failed.’’ 40 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.’’ 41 Testifying at a 2011 hearing, Former NLRB Chairman Peter Schaumber agreed the election process was not the 

source of delays.42 As Member 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.’’ 43 It is the Committee’s 

view the Board sought to address a problem that does not exist. 

B. Specialty Healthcare and Rehabilitation Center of Mobile 

On August 26, 2011, in Specialty Healthcare,44 the Board majority articulated a new standard for determining the composition of 

bargaining units. Under this new standard, if the union-proposed 

bargaining unit is made up of a readily identifiable group 45 and 

the Board finds the employees in the group share a ‘‘community of 

interest,’’ the Board will find the proposed unit appropriate.46 Any 

party seeking to enlarge the unit must demonstrate employees in 

the larger unit share an ‘‘overwhelming community of interest’’ 

with those in the petitioned-for unit.47 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.48 While the Specialty Healthcare case 

dealt specifically with non-acute healthcare, the Board decision significantly affects all industries.49 NLRB regional offices ‘‘will have 

little option but to find almost any petitioned-for unit appropriate.’’ 50 In the opinion of former NLRB Region 10 Director Curtis 

Mack, ‘‘a regional director looking at a representation petition 

12 

51 Culture of Union Favoritism: Recent Actions of the National Labor Relations Board: Hearing 

before the H. Comm. on Educ. and the Workforce, 112th Cong. at 13 (2011) (written testimony 

of Curtis Mack). 52 Id. at 19. 53Macy’s Inc, 361 NLRB No. 4 (2014). 54 Id. at 1. 55 Bullocks, Inc., d/b/a I. Magnin & Co., 119 NLRB 642 (1957). 56Macy’s, supra note 53 at 22–3. 57Member Miscimarra dissented and Member Johnson recused himself. 58Macy’s, supra note 53 at 19. 59The Neiman Marcus Group, Inc., 361 NLRB No. 11, 3 (2014). 60 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.’’). 

would be compelled to hold a representation election for any unit 

supported by the union.’’ 51 Under the new standard, it is ‘‘virtually 

impossible for a party opposing th[e] unit to prove that any excluded employees should be included.’’ 52

Under Specialty Healthcare, the NLRB has approved fragmented 

petitioned-for units despite past precedent, and subsequent challenges to the unit have been unsuccessful. For example, on July 22, 

2014, in Macy’s, Inc.,53 the NLRB determined that cosmetics and 

fragrance employees at the Macy’s store in Saugus, Massachusetts, 

are an appropriate unit for collective bargaining.54 Despite past 

precedent that the appropriate unit is a store-wide unit 55 and extensive evidence that all sales associates share a community of interest,56 in the opinion of the Board majority,57 the employer had 

not ‘‘demonstrated that its other selling employees share an overwhelming community of interest with the cosmetics and fragrances 

employees.’’ 58 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 a certain shoes department.59

C. Implications of the New Representation Election Process 

and Specialty Healthcare 

The NLRB’s representational election rule restricts an employer’s 

ability to communicate with his or her employees, cripples an employee’s ability to make an informed decision as to unionization, increases litigation, and decreases election agreements. The August 

26, 2011, Specialty Healthcare decision has fractured workplaces, 

increased labor costs and decreased 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.60 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. 

13 

61 Chamber of Commerce v. Brown, 554 U.S. 60, 67–68 (2008). 62 76 Fed. Reg. 36831. 63 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., at 15 (2011) 

(written testimony of Peter Schaumber). 64 Id. 65 Id. 66 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., at 3 (2011) 

(written testimony of John Carew). 67 Id. 68 Id. 

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).61

The new election procedures effectively eliminate an employer’s 

opportunity to communicate with his or her employees. Under the 

new election procedures, representational elections will be held in 

as little as 11 days.62 An employer could spend the first seven days 

finding legal representation and preparing for the pre-election 

hearing, leaving as little as four days to educate employees and 

rebut misinformation. 

In contrast, a 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, and vacation time with few 

restrictions under the law.63 While employees are likely to receive 

extensive information from the union on the benefits of unionization, they 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 and market competitiveness.64 When the union has garnered sufficient support, it selects 

the date and time for filing the petition.65

At the Committee’s July 7, 2011, hearing entitled ‘‘Rushing 

Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ Free Choice,’’ Mr. 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.66 This was the first time Mr. Carew had heard 

about the organizing drive.67 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, healthcare 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.’’ 68 Mr. Carew was forced to shut 

down temporarily portions of his business to educate supervisors 

14 

69 Id. 70 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., at 2 (2011) 

(written testimony of Larry Getts). 71 Id. 72 Id. 73 Id. 74 Restoring Balance and Fairness to the National Labor Relations Board, Hearing before the 

Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong., at 10 (2017) (written testimony of Raymond J. LaJeunesse) [hereinafter 

LaJeunesse Testimony]. 75Legislative Reforms to the National Labor Relations Act: H.R. 2776, Workforce Democracy 

and Fairness Act; H.R. 2775, Employee Privacy Protection Act; and, H.R. 2723, Employee Rights 

Act: Hearing before the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 

on Educ. and the Workforce, 115th Cong., at 3 (2017) (written testimony of Seth Borden) [hereinafter Borden Testimony]. 

and managers to ensure they did not violate the NLRA and to 

counter misinformation.69

At the same hearing, Mr. 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.70

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.71 His employer had signed a neutrality 

agreement.72 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.73

Mr. Raymond LaJeunesse of the National Right to Work Legal 

Defense Foundation testified at a February 14, 2017 HELP Subcommittee hearing that the shortened timeframe will infringe upon 

workers’ rights: ‘‘[T]he shortened time-frame for representation 

elections has adversely affected the ability of individual employees 

to fully educate themselves about the pros and cons of monopoly 

union representation, and hampered the ability of employees opposed to union representation to organize themselves in opposition 

to unions and timely obtain legal counsel.’’ 74

While testifying before a June 14, 2017, HELP Subcommittee 

legislative hearing on H.R. 2776, labor attorney Mr. Seth H. Borden noted: 

The changes in the 2015 Rule changes were, at best, a 

proposed solution in search of a problem. To the extent 

they were intended simply to increase union success in organizing, they did so by limiting employer free speech 

rights protected by Section 8(c) of the National Labor Relations Act . . . and infringing on the Section 7 rights of employees to refrain from union representation.75

At the same hearing, Ms. Nancy McKeague of the Society for 

Human Resource Management also raised concerns about the ability of employers to properly and legally communicate with their 

employees during a shortened election. She testified: 

15 

76Legislative Reforms to the National Labor Relations Act: H.R. 2776, Workforce Democracy 

and Fairness Act; H.R. 2775, Employee Privacy Protection Act; and, H.R. 2723, Employee Rights 

Act: Hearing before the Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. 

on Educ. and the Workforce, 115th Cong., at 3 (2017) (written testimony of Nancy McKeague) 

[hereinafter McKeague Testimony]. 77 H.R. 3094, The Workforce Democracy and Fairness Act: Legislative Hearing before the H. 

Committee on Educ. and the Workforce, 112th Cong., at 8 (2011) (written testimony of Robert 

Sullivan) [hereinafter Sullivan Testimony]. 78 Id. 79 Id. at 9. 

The ambush election rule significantly impairs small employers’ ability in responding to petitions in an accelerated 

manner and presents significant burdens for large employers with diverse and significant voting units. For example, 

small employers may not have an HR professional on staff 

or access to legal counsel that specializes in labor issues.76

The expedited timeframe for representational elections in the 

NLRB’s 2015 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 Position, 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 rule requires parties to complete a Statement of Position within seven days of receiving the election petition. With few exceptions, failure to state a position precludes a 

party from raising the issue at the pre-election hearing. Mr. Robert 

Sullivan, testifying on behalf of the Retail Industry Leaders Association (RILA) at an October 12, 2011, hearing stated these requirements ‘‘will wreak havoc with small and large employers.’’ 77

Small employers will have access to factual information, but they 

will not have in-house experts to evaluate the legal issues.78 In 

contrast, large employers will have the advantage of having inhouse experts or access to outside experts, but their size will complicate legal issues.79

This situation has been further complicated by the Specialty 

Healthcare decision. At a Committee hearing on March 5, 2014, entitled ‘‘Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule,’’ labor attorney Ms. 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 hearing: 

[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 

16 

80 Culture of Union Favoritism: The Return of the NLRB’s Ambush Election Rule: Hearing before the H. Comm. on Educ. and the Workforce, 113th Cong., (2014). (written testimony of Doreen S. Davis). 81 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., at 44 

(2011). 82 Id. 83 Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers’ 

Free Choice: Hearing before the H. Comm. on Educ. and the Workforce, 112th Cong., at 78–79 

(2011). 

84 Restoring Balance and Fairness to the National Labor Relations Board: Hearing before the 

Subcomm. on Health, Employment, Labor and Pensions of the H. Comm. on Educ. and the Workforce, 115th Cong., at 5 (2017) (written testimony of Kurt Larkin) [hereinafter Larkin Testimony]. 

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.80

With only seven days to prepare the Statement of Position for 

the start of the pre-election hearing, there is little opportunity to 

reach election agreements.81 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.82 Former NLRB Chairman Schaumber stated ‘‘the sum 

total of these rules is you are going to have far fewer pre-election 

agreements.’’ 83 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. 

Furthermore, leaving open questions, such as the composition of 

the bargaining unit, could result in significant problems for employers. At a February 14, 2017, HELP Subcommittee hearing entitled ‘‘Restoring Balance and Fairness to the National Labor Relations Board,’’ attorney Mr. Kurt Larkin of Hunton and Williams, 

LLP testified about this issue: 

[I]f an employer believes an employee in the proposed 

unit is a statutory supervisor, it cannot obtain a determination whether the individual should be excluded from 

the bargaining unit until after the election. This presents 

an obvious conundrum for the employer: it can treat the 

employee as a supervisor during the campaign, and risk 

unfair labor practice liability for doing so, or it can back 

off, and lose the ability to campaign through an individual 

who may well not even be eligible to vote.84

Delaying unit composition issues until after the election could increase the number of elections that must be rerun. Pro-union activity by supervisors may taint the election if employees falsely conclude the employer favors the union or if employees support the 

17 

85Fall River Sav. Bank v. NLRB, 649 F.2d 50, 56 (1st Cir. 1981). 86 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). 87 Borden, supra note 74 at 7. 88Specialty Healthcare, 357 NLRB No. 83, 19. 89Larkin, supra note 84 at 9. 90Sullivan, supra note 77 at 4. 91 Id. 92 Id. 

union out of fear of retaliation.85 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.86 Every 

rerun election and unfair labor practice charge will cost taxpayer 

dollars and increase employer legal costs. 

Fragmentation of the Workforce 

The Specialty Healthcare standard for determining the composition of an appropriate bargaining unit will allow unions to gerrymander the bargaining unit, encourage incremental organizing of 

units that support unionization, and lead to fragmentation in the 

workplace. In his June 2017 testimony, Mr. Borden summarized 

the new standard as ‘‘a drastic departure from the traditional 

standard employed by the Board for decades.’’ 87

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 supporting the 

union.88 Mr. Larkin stated the new standard has ‘‘the practical effect of allowing unions to seek bargaining units that reflect little 

more than the extent to which they have been successful in recruiting employees who support unionization.’’ 89

As a result, instead of one unit, employers have to bargain with 

multiple units, increasing fragmentation and 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.90

Moreover, this new standard is detrimental to workers. Drawing 

lines between departments limits flexibility and employee opportunities. As explained by Mr. Robert Sullivan during the October 12, 

2011, Committee 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.91 Additionally, opportunities for advancement into management would be limited without cross-training.92 Ms. McKeague noted in her June 2017 testimony before the 

HELP Subcommittee that the Specialty Healthcare standard ‘‘discourages teamwork rather than offering solutions that balance the 

needs of an individual department with the needs of the whole opVerDate Sep 11 2014 07:02 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
18 

93McKeague, supra note 75 at 7. 94LaJeunesse, supra note 76 at 5. 

eration.’’ 93 In February 2017, Mr. LaJeunesse further detailed the 

impact on workers at a HELP Subcommittee hearing. He testified 

that Specialty Healthcare ‘‘wrongfully elevated employees’ right to 

unionize above employees’ equal right to oppose unionization.’’ 94

D. Necessary Legislation To Address NLRB Actions 

Congress is responsible for establishing and revising standards 

in federal labor law. The NLRB’s decision in Specialty Healthcare 

and its ambush election rule will limit employee free choice and 

employer free speech, and fragment the workforce. The Workforce 

Democracy and Fairness Act reverses the NLRB’s August 26, 2011, 

decision in Specialty Healthcare and the ambush election rule 

without upsetting other standards under current law. 

To ensure parties can dispute union-proposed bargaining units, 

the Workforce Democracy and Fairness Act will codify the test used 

prior to 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. 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.’’ 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 also addresses the 

shortcomings of the NLRB’s ambush election rule. More specifically, the Act addresses: 

• 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 

19 

95 105 Cong. Rec. 5361 (1959). 96 NLRB, MEDIAN DAYS FROM PETITION TO ELECTION (2017), https://www.nlrb.gov/ 

news-outreach/graphs-data/petitions-and-elections/median-days-petition-election. 

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.’’ 95 For all 

petitions filed in the last full year before the ambush election 

rule took effect, the median time from the filing of a petition 

to an election was 38 days.96 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 wish 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. 

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 fully informed decisions about 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 ambush election rule. Together, these actions 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 restoring 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. 2776 as offered by HELP 

Subcommittee Chairman Walberg 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 December 14, 2015, final representation-case procedures rule. 

Section 3. Amends the National Labor Relations Act to reverse the holding in Specialty Healthcare. 

20 

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. 2776, the 

Workforce Democracy and Fairness Act, reverses the NLRB’s August 26, 2011, decision in Specialty Healthcare and reverses the 

NLRB’s December 15, 2014, final ambush election rule. 

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. 2776 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. 

21 


Insert offset folio 22 here HR326.001

Date: June 29, 20._1_7 ...... , __ 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: .. ,,.1_e_n_b_lo_c; ___ Bill: H.R. 2776 ·-. Amendment Number: 2 

Sponsor/Amendment: Ms. Wilson- Eliminates mandatory 35-day waiting period prior to an election. 

Name &Sta1e "'' ~0 v~~:;, Nanw & State Ay~ No ..'':' ·---------- ~---!---f-----· 

'vlrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) X 

:vir. WILSON (SC) : X Mrs. DAVIS (CA) X 

:vir. HUNTER (CA) i X Mr. GRIJALVA (AZ) X 

Mr. ROE(TN) X Mr. COURTNEY (CT) I X I 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) X 

Mr. WALBERG (Ml) X I Mr. POLIS (CO) I X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) X 

Mr. ROKITA (IN) X Ms. WILSON (FL) X 

Mr. BARLETTA(PA) X Ms. BONAMIC:f (OR) X 

Mr. MESSER (IN) X Mr. TAKANO (CA) X 

Mr. BYRNE (AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) X Mr. DcSAULNIER (C:A) X 

Mr. GROTH MAN (WI) I X Mr. NORCROSS (NJ) X 

Ms. STEFANIK (NY) X Ms. BLUNT ROCHESTER (DE) X 

Mr. ALLEN (GA) X Mr. KRlSHNAMOORTHI (IL) X 

Mr. LEWIS (MN) X Ms. SHEA-PORTER (NH) I X 

Mr. ROONEY (FL) X Mr. ESPAILLAT (NY) I X 

Mr. MITCHELL (MI) ! X I 

Mr. GARRETT (VA) X 

Mr. SMUCKER (PA) X ---------· 

iv!r. FERGUSON (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X 

TOTALS: Aye: 16 No: 22 Not Voting: 2 

Total: 40 I Quomm: 14 I Report: 21 

(23R-17D) 
22 


Insert offset folio 23 here HR326.002

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 1 en bloc Bill: H.R. 2776 Amendment Number: 3 

Disposition pef':' .. ted~by_avote~f_1_~_yf}~S ~11~~3211ays -~­

Sponsor/Amendment: Mr. Espaillat- Requires pre-election hearing within 8 days. 

Nam~ & S!Jtt: A)e \!o V~::•,:, N.tme & Stat~ 

-"·----

Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) 

Mr. WILSON (SC) X Mrs. DAVIS (CA) 

Mr. HUNTER(CA) I X I Mr. GRIJALVA (AZ) 

Mr. ROE(TN) X Mr. COURTNEY (CT) I 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) 

Mr. WALBERG (MI) X Mr. POLIS (CO) 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) 

Mr. ROKITA (IN) X Ms. WILSON (FL) 

Mr. BARLETTA(PA) X Ms. BONAM!CI (OR) 

Mr. MESSER(lN) i X IMr TAKANO (CA) 

Mr. BYRNE(AL) X Ms. ADAMS (NC) 

Mr. BRAT(VA) I 

X Mr. DcSAULN!ER (CA) 

Mr. GROTIIMAN (WI) X Mr. NORCROSS (NJ) ~· 

Ms. STEFANIK (NY) X Ms. BLUNT ROCHESTER (DE) ---~-

Mr. ALLEN (GA) X Mr. KRJSHNAMOORTHI (IL) 

Mr. LEWIS (MN) X Ms. SHEA-PORTER (Nfl)-------t 

Mr. ROONEY (FL) X Mr. ESP AIL LA T (NY) I 

Mr. MITCHELL (Ml) X 

Mr. GARRETT (VA) X I Mr. SMUCKER (PA) X 

Mr. FERGUSON (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X 

TOTALS: Aye: 16 No: 22 Not Voting: 2 

Total: 40 I Quornm: 14 I Report 21 

(23 R-17 D) 

,,,, N<> l v~::,;, ~ 

X 

X 

X 

X ·--

_')(_ 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 

X 
23 


Insert offset folio 24 here HR326.003

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 1 en bloc Bill: HR2776 Amendment t\umber: _ 5 

Disposition: Defeated~l'.a votE)_CJf _ _16_!'E'il~~ncJ.32 nays _________ _ 

Sponsor/Amendment: Mr. Scott- Strikes language allowing any issue to be raised at pre-election hearing. 

:'>lame &St.;l<: 

---- 1-- Mrs. FOXX (NC) (Chairwoman) 

Mr. WILSON (SC) 

Mr. HUNTER (CA) 

Mr. ROE (TN) 

Mr. THOMPSON (PA) 

Mr. WALBERG (MI) 

Mr. GUTHRIE (KY) 

Mr. ROKlTA (IN) 

Mr. BARLETTA (PA) 

Mr. MESSER (IN) 

Mr. BYRNE (AL) 

Mr. BRAT(VA) I 

I ---------· 

Mr. GROTIIMAN (WI) 

Ms. STEFANIK (NY) 

Mr. ALLEN (GA) 

Mr. LEWIS (MN) 

Mr. ROONEY (FL) 

Mr. MITCHELL (MI) 

Mr. GARRETT (VA) 

Mr. SMUCKER (PA) 

Mr. FERGUSON (GA) I Mr. ESTES (KS) I 

I 

Mrs. HANDEL (Gi\) ------------·-· 

TOTALS: Aye: 16 

·-·-· 

:'-!" ,~,,·,:, :"<.11ne& St<~te •\)'C 

---·--~-.. --~·-

X Mr. SCOTT (VA) (Ranking) X 

X Mrs. DAVIS (CA) X 

X Mr. GRIJALVA (AZ) X 

I X Mr. COURTNEY (CT) I X 

X Ms. FUDGE (OH) X 

X Mr. POLIS (CO) X 

X Mr. SABLAN (MP) 

X Ms. WILSON (FL) X 

X Ms. BONAMICJ (OR) X 

X Mr. TAKANO(CA) X 

' X • Ms. ADAMS (NC) X 

I X Mr. DeSAULNIER (CA) i X I 

I X Mr. NORCROSS (NJ) X 

X Ms. BLUNT ROCHESTER (DE) X 

X I Mr. KRI~HNAMOORTHl (IL) 

I 

X 

X !Ms. SHEA-PORTER (NH) X 

I X Mr. ESP AIL LA T (NY) X 

X 

X i I X 

X 

X I 

I X _______ __j_ __ 

No: 22 Not Voting: 

Total: 40 I Quorum: 14/ Report: 21 

(23R-17D) 

2 

;\[\) i;_ 

X 

,--

I 

I 
24 


Insert offset folio 25 here HR326.004

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 1 en bloc Bill: H.R 2776 Amendment Number: ............ · ... ~ .... . 

Sponsor/Amendment: Ms. Bonamici- Sanctions frivolous matters raised at pre-election hearings and 

appeals. 

,..--------·------·-· 

:-.<ame&State Aye :"lo v~,~,;, N~me & State Aye No 

Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) iX 

Mr. WILSON (SC) I X Mrs. DAVIS (CA) I X i I 

Mr. HUNTER (CA) X Mr. GRIJALVA (AZ) X 

Mr. ROE(TN) X Mr. COURTNEY (CT) X 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) X 

Mr. WALBERG (Ml) X Mr. POLIS (CO) X .... 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) 

Mr. ROKITA (IN) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BON AMICI (OR) X 

Mr. MESSER (IN) X Mr. TAKANO (CA) X 

Mr. BYRNE (AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) X Mr. DcSAULNIER (CA) X 

Mr, GROTHMAN (WI) X Mr. NORCROSS (NJ) X 

Ms, STEFANJK(NY) X Ms. BLUNT ROCHESTER (DE) X I Mr. ALLEN (GA) X IMr KRISJ:JNAMOORTHI (JL) X 

Mr. LEWIS(MN) X !Ms. SHEA-PORTER (NH) X 

Mr. ROONEY (FL) X Mr ESPAJLLAT (NY) X 

Mr. MITCHELL (MI) X 

Mr. GARRETT (VA) X ----· f---- -

Mr. SMUCKER (PA) XI 

Mr. FERGUSON (GA) i xi I 

Mr. ESTES (KS) I X 

Mrs. HANDEL (GA) X 

TOTALS: Aye: 16 No: 22 Not Voting: 2 

Total: 40 I Quorum: 14 I Report: 21 

(23 R-17D) 

·-

vm;,;, 

!---

X 

~-

I 
25 


Insert offset folio 26 here HR326.005

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Amendment Number: 7 

Sponsor/Amendment: Mr. DeSaulnier- Prevents employer gerrymandering of a bargaining unit. . 

-------------

NM:H:&S!Jte ~~.~.;, ;-..;mliC & Sla!c ,,, ~,) ~~.·.·,;, 

Mrs. FOXX (NC) (Chairwoman) X II Mr. SCOTT (VA) (Ranking) X 

Mr. WILSON (SC) I X Mrs. DAVIS (CA) X 

Mr. HUNTER(CA) HGRUACVA(A'I X 

Mr. ROE(TN) COURTNEY (CT) I X 

Mr. THOMPSON (PA) FUDGE (OH) X 

Mr. WALBERG (Ml) X Mr. POLIS (CO) X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) X 

Mr. ROKITA (IN) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BON AMICI (OR) X 

Mr. MESSER (IN) X Mr. TAKANO (CA) X 

Mr. BYRNE(AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) X Mr. DcSAULNJER (CA) X 

Mr. GROTH MAN (WI) X Mr. NORCROSS (NJ) X 

Ms. STEFANIK (NY) X Ms. BLUNT ROCHESTER (DE) I X 

Mr ALLEN (GA) X - ffMr. KRISBNAMOORTHI (IL) i X 

Mr. LEWIS(MN) X IIMs. SHEA-PORTER (Nll) X' 

Mr. ROONEY (FL) I X I Mr. FSPAILLAT (NY) X ·-

Mr. MITCHELL (MI) X 

Mr. GARRETT (VA) X I 

Mr. SMUCKER (PA) X 

Mr. FERGUSON (GA) I X 

Mr. ESTES (KS) X I Mrs. HANDEL (GA) X _]__ '--··'--- --

TOTALS: Aye: 16 No: 22 Not Voting: 2 

Total: 40 I Quomm: 14/ Report: 21 

(23 R- 17 Dl 
26 


Insert offset folio 27 here HR326.006

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: 1 en bloc 

Disposition: Defeatedby<~_vote of 16_yeas and_ 2_2~ay_s 

Sponsor/ Amendment: Mr. Polis - Prohibits captive audience meetings after election is ordered. 

---- Sww :-.l<l v~:':.\, ':'<wne& A)e No V<><;,;, ----- Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) X 

Mr. WILSON (SC) 1 ~DAVJS(C:A) X 

Mr. HUNTER (CA) Mr. GRIJALVA (AZ) X --

Mr. ROE(TN) X Mr. COURTNEY (CT) X 

Mr. THOMPSON (PA) X Ms. FUDGE (01-1) X 

Mr. WALBERG(MI) X Mr. POLIS (CO) X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) X 

Mr. ROKITA (IN) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mr. MESSER (IN) X Mr. TAKANO (CA) X 

Mr. BYRNE (AL) X Ms. ADAMS (NC) X --

Mr. BRAT(VA) X Mr. DcSAULNIER (CA) X 

Mr. GROTHMAN (WI) I X Mr. NORCROSS (NJ) X 

Ms. STEFANIK (NY) i X Ms. BLUNT ROCHESTER (DE) X 

Mr. ALLEN (GA) X IMr KRISHNAMOORTHI (IL) X 

Mr. LEWIS (MN) X IMs. SHEA-PORTER (NH) X 

Mr. ROONEY (FL) X Mr ESPAILLAT (NY) X 

Mr. MITCHELL (Ml) * Mr. GARRETT (VA) 

Mr. SMUCKER (PA) X 

Mr. FERGUSON (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X -·--·-·-·----··-·------

TOTALS: Aye: 16 No: 22 Not Voting: 2 

Total: 40 I Quorum: 14 I Report: 21 

(23R-17D) 
27 


Insert offset folio 28 here HR326.007

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THI~ WORKFORCE RECORD OF COMMITTEE VOTE 

Roll Call: ~--2-···---~- Bill: H.R. 2776 Amendment Nu1nber: 4 

Disposition: ~cJ_opt"dby a\/ol13_<lf_ 22yE;.']i; an_d_16 n~y_s_ 

Sponsor/Amendment: Mr. Thompson- motion to table the appeal of the ruling of the chair on the Courtney 

amendment. 

~.une & >:;!ak -\ye :.lo v~,?.:, NiHnc& S!"te No v~,?,:, - - Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) X 

Mr. WILSON (SC) X Mrs. DAVIS (CA) X ----~---~~·--1-· 

Mr. HUNTER (CA) X Mr. GRIJALVA (AZ) I X 

Mr. ROE(TN) X Mr. COURTNEY (CT) X -· 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) X 

Mr. WALBERG(MI) X Mr. POLIS (CO) I X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) ' X 

Mr. ROKITA(!N) X Ms. WILSON (FL) X 

Mr. BARLETTA (PA) X Ms. BONAM!CI (OR) X 

Mr. MESSER(IN) X Mr. TAKANO (CA) X 

Mr. BYRNE(AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) I X Mr. DeSAULNIER (CA) X 

Mr. GROTHMAN (WI) X I Mr. NO~CROSS (NJ) X 

Ms. STEFANIK (NY) X Ms. BLUNT ROCHESTER (DE) X 

Mr. ALLEN (GA) X 'Mr. KRISIINAMOORTHI (IL) X -

Mr. LEWIS (MN) X Ms. SHEA-PORTER (NH) X 

Mr. ROONEY (FL) X Mr. ESPAILLAT (NY) X 

Mr. MITCHELL (Ml) X 

Mr. GARRETT (VA) X I 

Mr. SMUCKER (PA) X 

Mr. FERGUSON (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X L __ 

TOTALS: Aye: 22 No: 16 Not Voting: 2 

Total: 40 I Quorum: 14 I Report; 21 

123 R- 17 D) 
28 


Insert offset folio 29 here HR326.008

Date: June 29, 2017 

COMMITTEE ON EDUCATION AND THE WORKFORCE RECORD O'F COMMITTEE VOTE 

Roll Call: 3 ___ Bill: _ H.R. 2776 Amendment Number: 

Disposition AdOP!(ld_l)lta_v!)te!)i'__2_2Xea!>_an~_1_6_'1ays ___ -~-----------

Sponsor/Amendment: Mr. Wilson - motion to report the bill to the House with an amendment and with the 

recommendation that the amendment be agreed to, and the bill as amended do pass. 

,_, __ 

Same & St~1~ :-::o v~.:.\,. :>lame&St<ite ;-..r,l v,,,, 

Mrs. FOXX (NC) (Chairwoman) X Mr. SCOTT (VA) (Ranking) X 

Mr. WILSON (SC) X Mrs. DAVIS (CA) X 

Mr. HUNTER(CA) X Mr. GRIJALVA (AZ) X 

Mr. ROE(TN) X Mr. COURTNEY (CT) X 

Mr. THOMPSON (PA) X Ms. FUDGE (OH) X 

Mr. WALBERG(Ml) X Mr. POLIS (CO) X 

Mr. GUTHRIE (KY) X Mr. SABLAN (MP) X 

Mr. ROKJTA (IN) Xj Ms. WILSON (H.) X 

Mr. BARLETTA (PA) X Ms. BONAMICI (OR) X 

Mr. MESSER (IN) xl r. TAKANO(CA) I X ---

Mr. BYRNE(AL) X Ms. ADAMS (NC) X 

Mr. BRAT(VA) X Mr. DcSAULNIER (CA) X 

Mr. GROTilMAN (WI) X I Mr. NORCROSS (NJ) X 

Ms. STEFANIK (NY) X I Ms. BLUNT ROCHESTER (DE) X ··-

Mr. ALLEN (GA) X I Mr. KRISHNAMOORTHI (IL) X 

Mr. LEWIS (MN) X Ms. Sf-lEA-PORTER (NH) X 

Mr. ROONEY (FL) X Mr. ESPAILLAT (NY) X 

Mr. MITCHELL (MI) ~ Mr. GARRETT (VA) X i 

Mr. SMUCKER (PA) X I 

Mr. l'FRGr r~nN (GA) X 

Mr. ESTES (KS) X 

Mrs. HANDEL (GA) X 

TOTALS: Aye: 22 No: 16 Not Voting: 2 

Total: 40 I Quorum: 14 I Report: 21 

(23 R-17D) 
29 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause (3)(c) of House Rule XIII, the goals of 

H.R. 2776 are to ensures cohesion in the workplace, employee free 

choice, and employer free speech. 

DUPLICATION OF FEDERAL PROGRAMS

No provision of H.R. 2776 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. 2776 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. 2776 from 

the Director of the Congressional Budget Office: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, July 21, 2017. 

Hon. VIRGINIA FOXX, Chairwoman, Committee on Education and the Workforce, 

House of Representatives, Washington, DC. 

DEAR MADAM CHAIRWOMAN: The Congressional Budget Office 

has prepared the enclosed cost estimate for H.R. 2776, 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, 

MARK P. HADLEY

(For Keith Hall, Director). 

Enclosure. 

30 

H.R. 2776—Workforce Democracy and Fairness Act 

H.R. 2776 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. 

2776 would not affect the federal budget. 

Enacting the bill would not affect direct spending or revenues; 

therefore, pay-as-you-go procedures do not apply. CBO estimates 

that enacting H.R. 2776 would not increase net direct spending or 

on-budget deficits in any of the four consecutive 10-year periods beginning in 2028. 

The bill contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

The CBO staff contact for this estimate is Christina Hawley Anthony. The estimate was approved by H. Samuel Papenfuss, Deputy 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. 2776. However, clause 

3(d)(2)(B) of that rule provides that this requirement does not 

apply when the Committee has included in its report a timely submitted cost estimate of the bill prepared by the Director of the Congressional Budget Office under section 402 of the Congressional 

Budget Act. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the 

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (new matter is printed in italic 

and existing law in which no change is proposed is shown in 

roman): 

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, 

and existing law in which no change is proposed is shown in 

roman): 

NATIONAL LABOR RELATIONS ACT 

* * * * * * * 

REPRESENTATIVES AND ELECTIONS

SEC. 9. (a) Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in 

a unit appropriate for such purposes, shall be the exclusive repVerDate Sep 11 2014 07:02 Sep 27, 2017 Jkt 069006 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 E:\HR\OC\HR326.XXX HR326
31 

resentatives of all the employees in such unit for the purposes of 

collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any 

individual employees or a group of employees shall have the right 

at any time at present grievances to their employer and to have 

such grievances adjusted, without the intervention of the bargaining representative, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agreement then in effect: Provided further, That the bargaining representative has been given opportunity to be present at such adjustment. 

(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:¿ (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, no 

employee shall 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) øProvided, That the Board¿ 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 

32 

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) by an employee or group of employees or any individual 

or labor organization acting in their behalf alleging that a substantial number of employees (i) wish to be represented for collective bargaining and that their employer declines to recognize their representative as the representative defined in section 9(a), or (ii) assert that the individual or labor organization, 

which has been certified or is being currently recognized by 

their employer as the bargaining representative, is no longer 

a representative as defind in section 9(a); or 

(B) by an employer, alleging that one or more individuals or 

labor organizations have presented to him a claim to be recognized as the representative defined in section 9(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 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. 

(2) In determining whether or not a question or representation 

affecting commerce exists, the same regulations and rules of decision shall apply irrespective of the identity of the persons filing the 

33 

petition or the kind of relief sought and in no case shall the Board 

deny a labor organization a place on the ballot by reason of an 

order with respect to such labor organization or its predecessor not 

issued in conformity with section 10(c). 

(3) No election shall be directed in any bargaining unit or any 

subdivision within which, in the preceding twelve-month period, a 

valid election shall have been held. Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible 

to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in any election 

conducted within twelve months after the commencement of the 

strike. In any election where none of the choices on the ballot receives a majority, a run-off shall be conducted, the ballot providing 

for a selection between the two choices receiving the largest and 

second largest number of valid votes cast in the election. 

(4) Nothing in this section shall be construed to prohibit the 

waiving of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules of decision of the 

Board. 

(5) In determining whether a unit is appropriate for the purposes 

specified in subsection (b) the extent to which the employees have 

organized shall not be controlling. 

(d) Whenever an order of the Board made pursuant to section 

10(c) is based in whole or in part upon facts certified following an 

investigation pursuant to subsection (c) of this section and there is 

a petition for the enforcement or review of such order, such certification and the record of such investigatioon shall be included in the 

transcript of the entire record required to be filed under section 

10(e) or 10(f), and thereupon the decree of the court enforcing, 

modifying, or setting aside in whole or in part the order of the 

Board shall be made and entered upon the pleadings, testimony, 

and proceedings set forth in such transcript. 

(e)(1) Upon the filing with the Board, by 30 per centum or more 

of the employees in a bargaining unit covered by an agreement between their employer and a labor organization made pursuant to 

section 8(a)(3), of a petition alleging they desire that such authority 

be rescinded, the Board shall take a secret ballot of the employees 

in such unit and certify the results thereof to such labor organization and to the employer. 

(2) No election shall be conducted pursuant to this subsection in 

any bargaining unit or any subdivision within which, in the preceding twelve-month period, a valid election shall have been held. 

* * * * * * * 

(34) 

1 Ross Eisenbrey and Colin Gordon, As Unions Decline, Inequality Rises, Economic Policy Institute, June 6, 2012 http://www.epi.org/news/union-membership-declines-inequality-rises/. 2 NO HOLDS BARRED: The Intensification of Employer Opposition to Organizing, Kate 

Bronfenbrenner, Director, Labor Education and Research, Cornell School of Industrial and 

Labor Relations, May 20, 2009 http://www.epi.org/files/page/-/pdf/bp235.pdf. 3 29 U.S.C. § 151. 

4 29 C.F.R. § 102.63(a)(1). 

MINORITY VIEWS 

The deceptively-named ‘‘Workforce Democracy and Fairness Act’’ 

is designed to deny private-sector workers a right to a fair union 

representation election by mandating unnecessary pre-election 

delays, encouraging additional delays through wasteful and frivolous litigation, and empowering employers to gerrymander the bargaining unit selected by the workers in order to dilute the voting 

strength of workers who want to form a union. 

A worker’s right to join a union and collectively bargain is among 

the most effective means to grow the middle class and reduce income inequality.1 The majority has advanced H.R. 2776 at a time 

of soaring income inequality, attributable, in part, to the decline of 

private-sector union membership. This bill specifically targets the 

right to join a union by undermining the union representation election process. Instead of raising wages and empowering employees, 

H.R. 2776 tilts the playing field against workers who want to organize a union. 

The bill was approved with 22 Republicans to 16 Democrats, 

with all Democrats present opposing the bill on a roll call vote. 

H.R. 2776 OVERTURNS KEY PARTS OF THE NLRB’S 2015 ELECTION RULE

BY MANDATING DELAYS

The National Labor Relations Board’s (NLRB) 2015 election rule 

updated union election procedures to increase transparency and reduce wasteful litigation that stalls the election process. Unnecessary procedural delays enable employers to have more time to campaign against the union, and research shows that employers often 

use that time to engage in coercive tactics against workers seeking 

to unionize.2 By streamlining the union election process, the 2015 

election rule best effectuates the stated purpose of the National 

Labor Relations Act (NLRA): to ‘‘encourag[e] the practice and procedure of collective bargaining’’ and ‘‘protect[] the exercise by workers of full freedom of association.’’ 3

Under the 2015 election rule, when a union files a petition for 

a union election, the regional office must schedule a pre-election 

hearing eight days from the date of the petition.4 This rule harmonizes the practices of various regional offices; prior to 2015, the 

regions scheduled hearings using various timelines. The 2015 election rule also narrowed the scope of permissible issues that could 

be litigated in a pre-election hearing to reduce pre-election delays 

35 

5 29 C.F.R. § 102.64(a). 

6 29 C.F.R. § 102.67(b). 

7 Associated Builders & Contractors of Texas, Inc. v. NLRB, 826 F.3d 215 (5th Cir. 2016); affirming 1-15-CV-026, U.S. Dist. LEXIS 78890 (W.D. Tex. June 1, 2015); Chamber of Commerce 

of the United States of America v. NLRB, 118 F. Supp. 3d 171 (D.D.C. 2015). 8 Associated Builders & Contractors of Texas, Inc., 826 F.3d at 229 (5th Cir. 2016). 9 Chamber of Commerce, 118 F. Supp. 3d at 220 (quoting 29 U.S.C. § 156 and plaintiff’s motion 

for summary judgment, respectively). 

and avoid wasteful litigation.5 Before 2015, the employer could insist on litigating any issue of voter eligibility. The pre-election 

hearing now focuses on issues that are necessary to determine 

whether it is appropriate to conduct the election at all. This way, 

litigation regarding individual voters’ eligibility is postponed to 

after the election, when many disputes can be mooted if their outcome is not enough to change the results of the election. Once the 

pre-election disputes are resolved, the NLRB’s 2015 rule requires 

the election to be held as soon as practicable, in order for the elections to be conducted efficiently.6

The NLRB’s election procedures are now settled law: every court 

where the 2015 election rule has been challenged has upheld the 

rule.7 For example, as the Fifth Circuit Court of Appeals held with 

regards to the suit filed by the Associated Builders and Contractors 

(ABC) of Texas: 

[The Board] conducted an exhaustive and lengthy review 

of the issues, evidence, and testimony, responded to contrary arguments, and offered factual and legal support for 

its final conclusions. Because the Board acted rationally 

and in furtherance of its congressional mandate in adopting the rule, the ABC entities’ challenge to the rule as a 

whole fails.8

Similarly, the U.S. District Court for the District of Columbia 

held: 

Congress authorized the Board ‘‘to make, amend, and rescind . . . such rules and regulations as may be necessary 

to carry out the provisions of the NLRA.’’ Plaintiffs complain that ‘‘the hundreds of pages in the Board’s Final 

Rule contain remarkably little logic or sound explanation 

for the sweeping changes made by the Final Rule,’’ but in 

reality, the Board engaged in a comprehensive analysis of 

a multitude of issues relating to the need for and the propriety of the Final Rule, and it directly addressed the commenters’ many concerns, including a number of the arguments plaintiffs raised here.9

The failure of these court challenges to the rule has prompted 

this legislation to overturn the 2015 NLRB election rule. 

H.R. 2776 targets the 2015 election rule by replacing the 8-day 

deadline for pre-election hearings with a 14-day delay before the 

hearing. It would also prohibit the NLRB from holding any union 

election sooner than 35 days after the filing of a petition for an 

election, even if there are no pre-election matters in dispute. This 

undermines the parties’ free choice: in over 90 percent of union 

elections, the parties themselves agreed to when the election would 

36 

10Percentage of Elections Conducted Pursuant to Election Agreements in FY16, NLRB 

https://www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/percentage-electionsconducted-pursuant-election (last accessed Jul. 7, 2017). 11 Address of Chairwoman Virginia Foxx at U.S. House of Representatives Committee on Education and the Workforce Markup (June 29, 2017) https://edworkforce.house.gov/calendar/ 

eventsingle.aspx?EventID=401796. 12 Chamber of Commerce, 118 F. Supp. 3d at 189. 13 Chamber of Commerce, 118 F. Supp. 3d at 189. 

occur and who is eligible to vote.10 During the hearing, the Majority did not articulate any reason to interfere in these agreements 

by forcing unnecessary delay. 

Committee Republicans at the June 29, 2017 markup echoed 

anti-union business groups in describing the NLRB’s 2015 election 

rule as an ‘‘ambush election rule . . . designed to rush employees 

into union elections.’’ 11 Indeed, when the D.C. District Court considered the Chamber of Commerce’s challenge to the rule, it noted 

that the Chamber ‘‘rel[ied] heavily on the repetition of disparaging 

labels, referring to the Final rule as the ‘ambush’ or ‘quickie’ election rule.’’ 12 The court found that ‘‘[t]his tendency to speak in 

broad terms’’ ignored how, ‘‘when one descends to the level of the 

particular, the provisions at issue are not quite as described. On 

its face, the Final Rule does not necessarily lead to the outcomes 

to which plaintiffs object . . . .’’ 13 By replacing the NLRB’s common sense 2015 election rule with mandatory delays, H.R. 2776 

serves no useful purpose other than to buy employers more time 

to chill employee support for a union. 

H.R. 2776 OVERTURNS PARTS OF THE NLRB ELECTION RULE THAT

STREAMLINES THE HEARING PROCESS AND CREATES OPPORTUNITIES

FOR WASTEFUL LITIGATION AND AMBUSH HEARINGS

H.R. 2776 expands the issues that parties can litigate prior to 

the election. Where the 2015 election rule reduced wasteful litigation by delaying issues that could be mooted by the election’s outcome, H.R. 2776 now allows parties to raise any pre-election issue 

that ‘‘may reasonably be expected to impact the outcome of the 

election.’’ This provision allows employers to raise issues that have 

no bearing on whether there is an appropriate bargaining unit. 

Thus, it grants employers the ability to extend hearings for weeks 

on end to buy time to chill the workers’ organizing drive or pressure them from organizing. This is not a one-sided concern: unions 

facing decertification campaigns could use the same delaying tactics. Any issues even remotely work-related, from unfair treatment 

by supervisors to the accuracy of campaign flyers, can be considered reasonably expected to impact the election’s outcome’’ and 

therefore be raised during a hearing. It is foreseeable that the 

NLRB will be burdened with a docket clogged with cases containing irrelevant issues having nothing to do with whether to conduct an election, or how to define an appropriate bargaining unit. 

This will further stall review efforts, which in turn will prevent 

elections from being held. 

H.R. 2776 also allows ambush hearings by allowing parties ‘‘to 

raise any issue or assert any position at any time prior to the close 

of the hearing.’’ The NLRB’s 2015 election rules require parties to 

declare all of the issues to be litigated at the outset of a hearing, 

37 

14 29 C.F.R. § 102.63(b). 15Specialty Healthcare, 357 NLRB 934 (2011), enforced sub nom Kindred Nursing Centers 

East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). 16Other factors can include ‘‘whether the employees are organized into a separate department; 

have distinct skills and training; have distinct job functions and perform distinct work, including 

inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; [and] 

interchange with other employees.’’ Specialty Healthcare, 357 NLRB at 942 (quoting United Operations, Inc., 338 NLRB 123, 123 (2002)). 17Specialty Healthcare, 357 NLRB at 944. 18 Id. at 940. 

as is commonly done in civil litigation, to assure orderly proceedings.14 H.R. 2776 overturns that rule. 

H.R. 2776 UNDERMINES EMPLOYEES’ RIGHT TO FULL FREEDOM OF AS- SOCIATION BY EMPOWERING EMPLOYERS TO GERRYMANDER THE

COMPOSITION OF THE BARGAINING UNIT

H.R. 2776 establishes an entirely new regime that would give 

employers, instead of employees, the dominant voice in determining 

who should be included and who should be excluded in a bargaining unit. The bill allows employers to dilute the percentage of 

employees interested in forming a union by expanding the pool of 

eligible voters with employees who have expressed no interest in 

joining a union. Employer gerrymandering rigs the NLRB’s election 

process and makes it much harder for employees to win a union. 

After a union files its petition for an election, including signatures demonstrating a showing of interest of at least 30 percent of 

the employees, the NLRB applies its traditional two-step process to 

resolve disputes regarding whether the bargaining unit that the 

union petitioned for is appropriate.15

• First, the NLRB determines whether the unit is a readily 

identifiable group sharing a ‘‘community of interest’’ using factors such as similarity of wages, hours, terms and conditions 

of employment, and supervision.16

• Second, assuming the unit shares a ‘‘community of interest,’’ if the employer contends additional employees should be 

added to the unit, then the NLRB looks at whether the employees in the unit share an ‘‘overwhelming community of interest’’ such that there ‘‘is no legitimate basis upon which to 

exclude certain employees from it.’’ 17

Various units are potentially appropriate for collective bargaining. The union need only petition for an appropriate unit, not 

the single most appropriate unit, or even the largest one.18

The bill undermines this traditional analysis by lowering the 

standard the employer needs to meet in order for employees to be 

added to the unit. H.R. 2776 allows an employer to override the 

union’s petitioned-for unit and require that employees be added if 

they can be shown to also share a community of interest, but without regard to whether this is how the workers chose to freely associate. This change could head off an election by diluting the percentage of employees interested in forming a union to below the 30 

percent threshold required for a showing of interest. Even if an 

election occurs, the ballot box will be stuffed with votes from workers who had no interest in forming a union at the outset, but were 

added to the voter pool to advance the employer’s efforts to defeat 

the union. This bill shifts the burden of proof on employees to jusVerDate Sep 11 2014 01:06 Sep 28, 2017 Jkt 069006 PO 00000 Frm 00037 Fmt 6604 Sfmt 6604 E:\HR\OC\HR326.XXX HR326
38 

19Median Size of Bargaining Units in Elections, NLRB https://nlrb.gov/news-outreach/ 

graphs-data/petitions-and-elections/median-size-bargaining-units-elections (last accessed Jul. 8, 

2017). 20 Blue Man Vegas, LLC v. NLRB, 529 F.3d 417 (D.C. Cir. 2008). 21Macy’s, Inc. v. NLRB, 824 F.3d 557, 567 (5th Cir. 2016) (internal citation omitted); see also 

Rhino Northwest, LLC v. NLRB, Case Nos. 16-1089, 16-1115, 2017 U.S. App. LEXIS 14884 (D.C. 

Cir. Aug. 11, 2017) (‘‘Throughout, the Board’s approach has remained fundamentally the same 

. . . We thus join seven of our sister circuits in concluding that Specialty Healthcare worked 

no departure from prior Board decisions.’’) (internal citations omitted); Constellation Brands, 

Inc. v. NLRB, 842 F.3d 784, 792 (2d Cir. 2016) (the standard is ‘‘consistent with earlier Board 

precedents’’); FedEx Freight, Inc. v. NLRB, 839 F.3 636, 639 (7th Cir. 2016) (the standard is 

‘‘not the invention of the Specialty Healthcare case’’); NLRB v. FedEx Freight, Inc., 832 F.3d 432, 

442 (3d Cir. 2016) (‘‘The Board’s citation to and approval of the D.C. Circuit’s understanding 

of Board precedent was not the adoption of new law’’); Nestle Dreyer’s Ice Cream Co. v. NLRB, 

821 F.3d 489, 500 (4th Cir. 2016) (‘‘[T]he Board clarified—rather than overhauled—its unit-determination analysis.’’); FedEx Freight, Inc. v. NLRB, 816 F.3d 515, 523 (8th Cir. 2016) (‘‘The 

precedents relied on by the Board in Specialty Healthcare make clear that the Board does not 

look at the proposed unit in isolation.’’), reh’g and reh’g en banc denied (May 26, 2016); Kindred 

Nursing Centers East, LLC, 727 F.3d 552, 561 (6th Cir. 2013) (‘‘The Board has used the overtify why the employer cannot simply dilute a proposed bargaining 

unit with workers who had no interest in organizing. 

The practical impact of this bill is that employers will find it 

much easier to gerrymander bargaining units to determine who can 

vote in a union election—presumably to either prevent an election 

or reduce the union’s chances of victory. 

This provision has been advanced by employer interests under 

the guise of overturning the NLRB’s 2011 Specialty Healthcare 

decision, which clarified the NLRB’s traditional two-step analysis. 

Committee Republicans inaccurately contend that this decision created a new standard for determining an appropriate bargaining 

unit that creates ‘‘micro-units’’ and allows unions to gerrymander 

bargaining units. Alarmist warnings of a proliferation of ‘‘microunits’’ have not materialized, as the median bargaining unit size 

approved by the NLRB has remained unchanged since the 2011 decision. 

Fiscal Year 

Median Bargaining Unit Size 

Approved by NLRB (Source: 

NLRB) 

FY 2007 ................................................................................................................................................ 24 

FY 2008 ................................................................................................................................................ 26 

FY 2009 ................................................................................................................................................ 24 

FY 2010 ................................................................................................................................................ 27 

FY 2011 ................................................................................................................................................ 26 

FY 2012 ................................................................................................................................................ 28 

FY 2013 ................................................................................................................................................ 24 

FY 2014 ................................................................................................................................................ 26 

FY 2015 ................................................................................................................................................ 25 

FY 2016 ................................................................................................................................................ 26 

As the chart illustrates, the median bargaining unit size was 26 

three years before the Specialty Healthcare was decided, it was 26 

when the decision was issued in 2011, and it was unchanged at 26 

in 2016, five years later.19

The NLRB’s traditional two-step analysis is not new: Specialty 

Healthcare, which was affirmed by the Sixth Circuit Court of Appeals, only clarified the NLRB’s existing standard. The D.C. Circuit 

previously articulated the same test and noted the Board’s decadeslong precedent using that test.20 Eight separate Courts of Appeals 

have subsequently considered Specialty Healthcare and held that 

the NLRB merely ‘‘laid out the traditional standard,’’ 21 and, on 

39 

whelming-community-of-interest standard before, so its adoption in Specialty Healthcare is not 

new.’’). 22 See Macy’s Inc. v. NLRB, No. 16-1016, U.S. Sup (June 19, 2017). 

June 19, 2017, the U.S. Supreme Court declined to hear a case 

challenging the two-prong test outlined above involving a Macy’s 

department store.22

The Majority’s allegations that the Specialty Healthcare decision 

enables ‘‘union gerrymandering’’ of a bargaining unit are also unfounded. Section 9(c)(5) of the NLRA specifically states that ‘‘the 

extent to which the employees have organized shall not be controlling’’ when determining ‘‘whether a unit is appropriate.’’ Union gerrymandering is therefore prohibited, and Specialty Healthcare complements Section 9(c)(5) by precluding employer gerrymandering. 

H.R. 2776 disrupts settled law by allowing employers to rig union 

elections in their own favor. 

H.R. 2776 thus undermines the very right to organize a union by 

replacing the ‘‘overwhelming community of interest’’ standard and 

requiring that any additional employees with a mere community of 

interest be added to the voting pool upon the request of the employer. By attacking the NLRB’s traditional standard and creating 

a controversy where none exists, Committee Republicans hope to 

use this as an opening to rewrite the National Labor Relations Act 

to de-unionize the economy. 

COMMITTEE DEMOCRATS OFFER AMENDMENTS TO H.R. 2776 

Democrats offered the following amendments to H.R. 2776 at the 

June 29, 2017 markup: 

Amendment 1—To eliminate the 35-day waiting period for an election 

In order to prevent needless delays in conducting elections, Representative Frederica S. Wilson proposed an amendment to strike 

the text that requires an election to be delayed for at least 35 days 

from the date the petition was filed when a party contests a preelection issue. This amendment would restore the current NLRB 

election rule so an election would be conducted as soon as practicable following the pre-election hearing (consistent with the requirement that a notice of election is posted for three days prior 

to the election). While H.R. 2776 prescribes minimum delays, there 

is no provision in the bill to limit the time that an election can be 

delayed. 

This amendment was rejected 16–22. 

Amendment 2—To replace the 14-day waiting period for a pre-election hearing with an 8-day deadline 

In order to prevent needless delays in conducting elections, Representative Adriano Espaillat proposed an amendment to require a 

pre-election hearing to be held 8 days after the date the petition 

was filed, replacing text requiring that a pre-election hearing be 

delayed for at least 14 days from the date of the petition. This 

amendment would codify the current NLRB election rule that went 

into effect in April 2015. H.R. 2776 allows open-ended delays in 

40 

holding pre-election hearings, while also prescribing a longer minimum time period before pre-election hearings can be held. 

This amendment was rejected 16–22. 

Amendment 3—To prevent employers from withdrawing recognition 

of a union without an election 

In order to promote workforce democracy and fairness, as the bill 

purports, Representative Joe Courtney proposed an amendment to 

prohibit employers from withdrawing recognition of the union that 

was originally certified through an election without first conducting 

a decertification election. Under current law, if an employer can 

present objective evidence that a union has lost majority support 

during a period when the union’s decertification is not barred, then 

the employer can unilaterally withdraw recognition of the union 

without an election. However, if a union campaigning for representation presents objective evidence that it has majority support, the 

employer can require an election before being required to recognize 

the union. This amendment rectifies that double-standard, by requiring an election before an employer can unilaterally withdraw 

recognition. 

This amendment was ruled non-germane. The appeal of the ruling was tabled on a vote of 22–16. 

Amendment 4—To strike language allowing open-ended litigation in 

pre-election hearings 

In order to ensure that pre-election hearings are focused on resolving genuine disputes, Ranking Member Bobby Scott proposed 

an amendment striking the text that authorizes parties to raise 

‘‘any other issue which . . . may reasonably be expected to impact 

the outcome of the election.’’ Pre-election hearings are for setting 

election ground rules such as defining the appropriate bargaining 

unit, or resolving issues that eliminate the need for an election. 

They are not for concocting litigation over ‘‘any other issue’’ that 

could impact the election’s outcome, which could range from disputes over the accuracy of campaign literature to alleged unfair 

labor practices by either party. 

The amendment was rejected 16–22. 

Amendment 5—To sanction frivolous and vexatious filings 

In order to deter frivolous filings, Representative Suzanne 

Bonamici proposed an amendment to provide the NLRB with the 

authority to impose sanctions on any party for presenting a frivolous or vexatious filing during any stage of a representation proceeding. Potential sanctions included reimbursement of the opposing party’s attorney fees and costs, using criteria in Rule 11 of Federal Rules of Civil Procedure. In addition, if the Board determines 

that a party presented a frivolous filing for purposes of delaying an 

election, the Board shall direct an election in not less than 7 days 

after such determination. The NLRB has no sanction procedures 

with regards to representation proceedings. 

The amendment was rejected 16–22. 

41 

Amendment 6—To prevent employers from gerrymandering the bargaining unit 

Representative Mark DeSaulnier proposed an amendment to 

strike text that would allow employers to gerrymander bargaining 

units as a way to impact the outcome of union elections. The 

amendment reinstated the traditional requirement that an employer can only succeed in adding employees to the proposed bargaining unit if the additional employees shared an ‘‘overwhelming 

community of interest’’ with the other employees. This bill hinders 

employees’ right to join a union by empowering employers to cram 

the pool of eligible voters with employees who have expressed no 

interest in joining a union. In addressing this problem, the amendment restores the current law as expressed in the NLRB’s Specialty 

Healthcare decision. 

This amendment was rejected 16–22. 

Amendment 7—To prohibit captive audience meetings after an election is ordered 

To prevent coercion and intimidation by employers during the 

election process, Representatives Donald Norcross and Jared Polis 

proposed an amendment to prohibit captive audience meetings between the date an election is ordered and the time of election. 

Should an employer violate this provision, the election can be invalidated and a new election ordered upon the filing of valid objections. The amendment provided an exception where there is an explicit written agreement between the employer and a union. 

Captive audience meetings are compulsory listening sessions that 

are conducted by employers on an employee’s paid time and are 

used to propagandize against the union seeking recognition. Current law only prohibits captive audience meetings in the 24 hours 

prior to an election. Under current law, employees who refuse to 

participate or object to any portion of the presentation can be legally fired by their employer. Unions are not provided equal time 

at these meetings, nor do they have any right to enter the employer’s worksite to provide information. This amendment helps to level 

the playing field, and it will help ensure that employees can exercise their choice untainted by attendance at forced meetings. The 

amendment does not restrict the employer’s ability to hold voluntary and unpaid meetings with employees, which are the same 

terms on which unions campaign. 

This amendment was rejected 16–22. 

Amendment 8—To substitute the text of the bill with the Raise the 

Wage Act 

Representative Mark Takano offered an amendment to replace 

the bill with the Raise the Wage Act (H.R. 15). This amendment 

raises the federal minimum wage to $15 an hour by 2024. H.R. 

2776 does nothing to grow the economy or expand the middle class. 

By impeding the ability of workers to organize, it depresses wages 

and creates a more insecure labor market. During this time of skyrocketing inequality, this Committee should be focused on empowering workers and raising wages. 

The amendment was ruled non-germane, and the appeal of the 

ruling was tabled. 

42 

ROBERT C. ‘‘BOBBY’’ SCOTT. Ranking Member. 

SUSAN A. DAVIS. RAU ́ L M. GRIJALVA. JOE COURTNEY. MARCIA L. FUDGE. JARED POLIS. GREGORIO KILILI CAMACHO

SABLAN. FREDERICA S. WILSON. SUZANNE BONAMICI. MARK TAKANO. 

ALMA S. ADAMS. 

MARK DESAULNIER. 

DONALD NORCROSS. 

LISA BLUNT ROCHESTER. 

RAJA KRISHNAMOORTHI. 

CAROL SHEA-PORTER. ADRIANO ESPAILLAT. 

Æ