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S. HRG. 114–559 

AMBUSHED: HOW THE NLRB’S NEW ELECTION 

RULE HARMS EMPLOYERS AND EMPLOYEES 

HEARING 

OF THE

COMMITTEE ON HEALTH, EDUCATION, 

LABOR, AND PENSIONS 

UNITED STATES SENATE 

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

ON

EXAMINING THE NATIONAL LABOR RELATIONS BOARD’S (NLRB) NEW 

ELECTION RULE, FOCUSING ON EMPLOYERS AND EMPLOYEES 

FEBRUARY 11, 2015 

Printed for the use of the Committee on Health, Education, Labor, and Pensions 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys/ 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS 

LAMAR ALEXANDER, Tennessee, Chairman 

MICHAEL B. ENZI, Wyoming 

RICHARD BURR, North Carolina 

JOHNNY ISAKSON, Georgia 

RAND PAUL, Kentucky 

SUSAN COLLINS, Maine 

LISA MURKOWSKI, Alaska 

MARK KIRK, Illinois 

TIM SCOTT, South Carolina 

ORRIN G. HATCH, Utah 

PAT ROBERTS, Kansas 

BILL CASSIDY, M.D., Louisiana 

PATTY MURRAY, Washington 

BARBARA A. MIKULSKI, Maryland 

BERNARD SANDERS (I), Vermont 

ROBERT P. CASEY, JR., Pennsylvania 

AL FRANKEN, Minnesota 

MICHAEL F. BENNET, Colorado 

SHELDON WHITEHOUSE, Rhode Island 

TAMMY BALDWIN, Wisconsin 

CHRISTOPHER S. MURPHY, Connecticut 

ELIZABETH WARREN, Massachusetts 

DAVID P. CLEARY, Republican Staff Director 

EVAN SCHATZ, Minority Staff Director 

JOHN RIGHTER, Minority Deputy Staff Director 

(II) 

C O N T E N T S 

STATEMENTS 

WEDNESDAY, FEBRUARY 11, 2015 

Page 

COMMITTEE MEMBERS

Alexander, Hon. Lamar, Chairman, Committee on Health, Education, Labor, 

and Pensions, opening statement ....................................................................... 1 

Murray, Hon. Patty, a U.S. Senator from the State of Washington ................... 3 

Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia ....................... 30 

Franken, Hon. Al, a U.S. Senator from the State of Minnesota .......................... 32 

Scott, Hon. Tim, a U.S. Senator from the State of South Carolina ..................... 34 

Warren, Hon. Elizabeth, a U.S. Senator from the State of Massachusetts ........ 36 

Cassidy, Hon. Bill, a U.S. Senator from the State of Louisiana .......................... 37 

Casey, Hon. Robert P., Jr., a U.S. Senator from the State of Pennsylvania ...... 39 

WITNESSES

Cohen, Charles I., Senior Counsel, Morgan Lewis LLP, Washington, DC ......... 4 

Prepared statement .......................................................................................... 6 

Carter, Mark A., Esq., Partner, Dinsmore & Shohl LLP, Charleston, WV ........ 8 

Prepared statement .......................................................................................... 10 

Milito, Elizabeth, Senior Executive Counsel, National Federation of Independent Business (NFIB), Small Business Legal Center, Washington, DC ... 15 

Prepared statement .......................................................................................... 16 

Sencer, Caren P, Esq., Shareholder, Weinberg, Roger & Rosenfeld P.C., Alameda, CA .............................................................................................................. 19 

Prepared statement .......................................................................................... 21 

ADDITIONAL MATERIAL 

Statements, articles, publications, letters, etc.: 

Senator Collins ................................................................................................. 41 

Society for Human Resource Management (SHRM), letter .......................... 42 

Response to questions of Senator Kirk by: 

Charles I. Cohen ........................................................................................ 43 

Mark A. Carter .......................................................................................... 43 

Elizabeth Milito ......................................................................................... 45 

Response by Caren P. Spencer to questions of: 

Senator Alexander ..................................................................................... 46 

Senator Kirk .............................................................................................. 48 

(III) 

(1) 

AMBUSHED: HOW THE NLRB’S NEW ELECTION 

RULE HARMS EMPLOYERS AND EMPLOYEES 

WEDNESDAY, FEBRUARY 11, 2015 

U.S. SENATE, 

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, 

Washington, DC. 

The committee met, pursuant to notice, at 9:34 a.m., in room 

430, Dirksen Senate Office Building, Hon. Lamar Alexander, chairman of the committee, presiding. 

Present: Senators Alexander, Isakson, Scott, Cassidy, Murray, 

Franken, Warren, and Casey. 

OPENING STATEMENT OF SENATOR ALEXANDER

The CHAIRMAN. The Senate Committee on Health, Education, 

Labor, and Pensions will please come to order. 

This morning we’re having a hearing about the National Labor 

Relations Board’s new rule on union elections. Senator Murray and 

I will each have an opening statement. Then we’ll introduce our 

panel of witnesses. We thank them for coming. After our witness 

testimony, Senators will have 5 minutes for questions. 

Last December, the NLRB issued a final rule that shortened the 

timeline between when pro-union organizers ask an employer for a 

secret ballot election and when that election takes place. I refer to 

this as the ambush election rule because it forces a union election 

before an employer has a chance to figure out what’s going on. 

Even worse, it jeopardizes employees’ privacy by requiring employers to turn over personal information, including email addresses, 

phone numbers, shift hours, and locations to union organizers. For 

that reason, Senator Enzi, Senator McConnell, and I have introduced a resolution of disapproval under the Congressional Review 

Act, which we expect the Senate will act on after the recess. 

Today, more than 95 percent of union elections occur within 56 

days of the petition filing. Under this new rule, elections could take 

place in as few as 11 days. The rule will harm employers and employees alike. Here’s how. 

If you’re an employer who gets ambushed, on day 1 you get a fax 

copy of an election petition that has been filed at your local NLRB 

regional office stating that 30 percent of your employees support a 

union. The union may have been quietly trying to organize for 

months without your knowledge. Your employees have heard only 

the union’s pitch. 

By day 2 or 3, you must publicly post an election notice in your 

workplace and online if you communicate to your employees elecVerDate Nov 24 2008 16:24 Feb 28, 2017 Jkt 000000 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\DOCS\93356.TXT DENISE
2 

tronically. By noon on day 7, you must file with the NLRB what 

is called a Statement of Position. This is a comprehensive written 

document in which an employer sets out legal positions and claims, 

and under the new rule you waive your rights to use any legal arguments not raised in this document. On day 7 you must also 

present the union and the NLRB with a list of prospective voters, 

as well as their job classifications, shifts, and work locations. 

On day 8, a pre-election hearing is held at the regional office and 

an election date is set. By day 10, you must hand the union a list 

of employee names, personal email addresses, personal cell phone 

numbers, and home addresses. Day 11 is the earliest day on which 

an election could be held. Under this new rule a union could postpone an election by 10 days at this point, but the employer has no 

corresponding power. 

Under this new NLRB rule, before the hearing on day 8 an employer will have less than 1 week to figure out what an election petition is, find legal representation, determine legal positions on the 

relevant issues, learn what statements and actions the law permits 

and prohibits, gather information required by the NLRB, communicate with employees about the decision they’re making, and correct any misstatements and falsehoods that employees may be 

hearing from union organizers. Making even the slightest mistake 

in the lead-up to an election can result in the NLRB setting aside 

the results and ordering a re-run election; or worse, the Board 

could require an employer to automatically bargain with the union. 

It is the employees who stand to lose the most under this rule. 

First, because of this ambush, employees will hear only half the 

story about what unionizing will mean for them and their workplace. As the two dissenting members of the NLRB put it, employees will be asked to ‘‘vote now, understand later.’’ 

Second, employees lose their privacy because the rule requires 

employers to hand over employees’ personal email addresses, cell 

phone numbers, shift hours, locations, and job classifications even 

if the employee has said he doesn’t want to be contacted by union 

organizers. 

This rule appears to be a solution in search of a problem. Only 

4.3 percent of union elections occur more than 56 days after the petition filing, and the current median number of days between a filing and an election is just 38 days. These figures are well within 

the NLRB’s own goals for timely elections. Unions won 64 percent 

of elections in 2013. In recent years, the union win rate has been 

going up. 

In a 1959 debate over amendments to the National Labor Relations Act, then Senator John F. Kennedy warned against rushing 

employees into an election saying, 

‘‘There should be at least a 30-day interval between the request for an election and the holding of the election in which 

both parties can present their viewpoints.’’ 

That was Senator Kennedy’s view. 

It’s clear to see the rule is wrong. That’s why we’ve introduced 

the Congressional Review Act resolution. We’ll ask the Senate to 

disapprove the NLRB’s new rule and prohibit it from issuing any 

similar rule. The House will follow a similar process. I hope the full 

Senate will agree. 

3 

Senator Murray. 

OPENING STATEMENT OF SENATOR MURRAY

Senator MURRAY. Well, thank you very much, Mr. Chairman. I 

especially want to thank all of our witnesses who are joining us 

today and taking time out of your lives. 

In Congress, we should really be working on ways to grow the 

economy from the middle out, not the top down. Over the last several decades, the middle class has gotten stuck with a shrinking 

share of America’s prosperity, even as the biggest corporations 

have posted record profits, and even as American productivity has 

increased. 

American workers’ paychecks have stagnated, and many are 

struggling now to make ends meet on rock-bottom wages and poor 

conditions on the job. 

Unfortunately, once again, instead of sticking up for workers, 

some of our Republican colleagues are rushing to the defense of the 

biggest corporations that have an interest in keeping wages low 

and denying workers a voice to improve their workplace. 

When workers want to vote on whether to form a union, they 

aren’t looking for special treatment. They are simply trying to exercise their basic rights. Too often, big corporations use loopholes in 

the current election process to delay a straight up-or-down vote. 

Workers have the right to vote on union representation in elections that are free from unnecessary delays and wasteful stall tactics. Our country should not turn our backs on empowering workers through collective bargaining, especially because that is the 

very thing that helped so many workers climb into the middle 

class. 

As a reminder, by law, workers have the right to join a union so 

they can have a voice in the workplace. Right now, the NLRB’s 

election process is outdated. The NLRB’s new representation rule 

makes important but very modest amendments to guarantee a free 

and fair election process in today’s modern workplace. 

For example, the old election rule is vulnerable to frivolous litigation, which could drag out elections and put workers’ rights on 

hold. The new rule will reduce unnecessary litigation on issues that 

aren’t relevant to the outcome of the election. 

In the past, employers had to send out mail through the post office, which cost time and it cost money. This new rule brings the 

rules into the 21st century by letting employers and unions file 

forms electronically. It will allow the use of more modern forms of 

communication with employees through cell phones and email. 

These changes aren’t just good for workers. They are also good 

for employers by streamlining the election process. Some of my colleagues on the other side of the aisle take great offense to these 

modest changes. Instead of standing up for workers across the 

country who are struggling with stagnant wages, Republicans have 

chosen to challenge these common-sense reforms. 

Let’s be clear: This rule is about reducing unnecessary litigation, 

and using cell phones and email to transmit information in 2015 

is just common sense. 

4 

A worker wanting to have a voice in the workplace is not an ambush. It is their right as guaranteed by the National Labor Relations Act and by the First Amendment of our Constitution. 

Workers having a seat at the bargaining table is critical to America’s middle class. It’s not a coincidence that when more workers 

can stand up for their rights, wages increase, workplaces are safer, 

and access to health care goes up. 

In short, middle-class Americans are better able to share in the 

economic prosperity that they have earned through hard work. 

Instead of attacking workers who want to collectively bargain, I 

hope that our colleagues on the other side of the aisle reconsider 

this approach and work with us to protect workers’ rights and increase wages and grow our Nation’s middle class. 

I do truly hope that Republicans and Democrats can break 

through the gridlock and work together on policies that help to create jobs and expand economic security and generate broad-based 

economic growth for workers and families, not just the wealthiest 

few. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murray. 

I’ll now introduce our witnesses. Senator Murray, would you like 

to introduce Ms. Sencer? 

Senator MURRAY. I think you’re just going to go ahead and do it. 

The CHAIRMAN. OK, I’ll do it. 

Charles Cohen is the Republican member of the NLRB from 1994 

to 1996. Since his service on the Board, he’s worked in private 

practice, specializing in NLRB proceedings. 

Mark Carter is a labor attorney with extensive experience dealing with union organizing, corporate campaigns, and collective bargaining. 

Elizabeth Milito is senior executive counsel with the National 

Federation of Independent Business Small Business Legal Center. 

She frequently consults small businesses dealing with labor issues. 

Ms. Caren Sencer is an attorney with Weinberg, Roger and 

Rosenfeld in Alameda, CA. She regularly practices before the 

NLRB and has participated in more than 100 election hearings 

from which to draw examples for this testimony. 

We welcome the four of you. If each of you would summarize 

your remarks in 5 minutes, we would appreciate it because that 

will give the Senators more time to have a conversation with you. 

STATEMENT OF CHARLES I. COHEN, SENIOR COUNSEL, 

MORGAN LEWIS LLP, WASHINGTON, DC 

Mr. COHEN. Chairman Alexander, Ranking Member Murray, and 

members of the committee, thank you for your invitation to participate in this hearing. I’m honored to appear before you today. 

I am senior counsel in the law firm of Morgan Lewis and 

Bockius, LLP, where I represent employers in many industries 

under the National Labor Relations Act. As you mentioned, Senator Alexander, from 1994 to 1996 I had the privilege of serving as 

a member of the NLRB and was appointed by President Clinton 

and confirmed by the Senate. 

My entire professional career, spanning more than 40 years, has 

been spent working under the NLRB. For the first 8 of those years, 

5 

I worked at the NLRB both at Washington and two regional offices. 

During that time, I personally conducted NLRB elections, served as 

a hearing officer, litigated in the courts of appeal, and performed 

the myriad of other functions of a Board agent, supervisor and deputy regional attorney. 

Apart from my time with the NLRB, the remainder of my professional activity has been spent representing employers in traditional 

labor matters. 

On December 15 of last year, the NLRB published its extensive 

rule, which revises on a wholesale basis the regulations regarding 

union elections. The final rule will, among many things, dramatically shorten the period of time between a union filing an election 

petition with the Board and the actual holding of the election. It 

will also undermine an employer’s ability to mount a lawful, effective information dialog with its employees on whether or not to select union representation. 

The final rule described by the two dissenting NLRB members as 

the Mt. Everest of regulations took 733 pages to print when issued, 

and occupied 200 pages in the Federal Register. 

The final rule is, in my judgment, a transparent attempt to circumvent Congress on the issue of how, if at all, to reform the Nation’s labor laws after the failure of the prior Congress to pass the 

Employee Free Choice Act, legislation supported by the labor movement that would have all but ended secret ballot elections at the 

NLRB in favor of card check recognition. 

The changes that have brought us here today are of a different 

magnitude than anything the NLRB has done in the past. They 

represent no less than an attempt by the NLRB to put its thumb 

on the scale in favor of union representation. 

In virtually every controversial NLRB initiative that I have witnessed in the past, the emphasis has been on enforcing the law 

while plugging opportunities for parties to violate the law or game 

the system. Unlike any of these other initiatives, however, this one 

transparently seeks to deprive law-abiding and non-games playing 

employers of the right to communicate their views under Section 

8(c) of the Act. The entire employer community is presumed to be 

on the wrong side, standing ready to trample the rights of employees. 

The final rule also deprives employees of their right to receive 

key information from all sides in order to be fully informed on how 

and whether to exercise their section 7 rights. 

Some key facts are relevant to the final rule’s background in our 

discussion today. Union density in the private sector has been on 

the decline and is currently below 7 percent of the private sector 

workforce. Whatever the cause, the scope of which is beyond this 

debate, it is obviously distressing to organized labor. 

As virtually every NLRB agent knows, the longer the period of 

time between the filing of an election petition and an election, the 

less likely it is that employees will select a union. This is so whether or not unlawful or objectionable conduct has occurred. 

Over the decades, there have been legislative calls from organized labor to dramatically shorten the period of time from petition 

to election, and the possibility of shortened election periods was 

6 

1 I am not speaking on behalf of Morgan, Lewis & Bockius LLP or any other specific organization, and my testimony should not be attributed to any organization. There is pending litigation 

challenging the implementation of the Final Rule in which I, and the firm, are involved. Chamber of Commerce of the United States, et al. v. National Labor Relations Board, Case No. 1:15- 

cv–00009–ABJ (D.D.C.). However, this testimony reflects my own personal views, although I 

wish to thank David R. Broderdorf for his efforts in helping me prepare this testimony. 2 79 Fed. Reg. 74,308–490 (Dec. 15, 2014). 

3 79 Fed. Reg. at 74,430 (dissent). 

widely discussed during the policy debates surrounding the Employee Free Choice Act. No legislative change has occurred. 

What does the Board come up with in its final rule? It has proffered the gimmick of a hurried and emasculated hearing, contrary 

to the statute; a binding Statement of Position under the threat of 

waiver; offers of proof instead of actual testimony; preclusive rules 

to limit issues; 2 days to submit employee lists with personal email 

and telephone contact information; and other frenetic timelines. 

On top of these problems, the final rule will lead to far fewer 

elections where the parties obtain decisions on voter eligibility and 

supervisory status issues before employees vote. That’s throwing 

many more election campaigns into chaos and confusion. 

This concludes my testimony. I would be happy to answer any 

questions. 

[The prepared statement of Mr. Cohen follows:] 

PREPARED STATEMENT OF CHARLES I. COHEN

Chairman Alexander, Ranking Member Murray, and members of the committee, 

thank you for your invitation to participate in this hearing. I am honored to appear 

before you today. 

By way of introduction, I am Senior Counsel in the law firm of Morgan, Lewis 

& Bockius LLP, where I represent employers in many industries under the National 

Labor Relations Act (NLRA). From 1994 to 1996, I had the privilege of serving as 

a member of the National Labor Relations Board (NLRB or Board), and was appointed by President Clinton and confirmed by the U.S. Senate.1

My entire professional career, spanning more than 40 years, has been spent working under the NLRA. For the first 8 of those years, I worked at the NLRB, both 

in Washington and in two regional offices. During that time, I personally conducted 

NLRB elections, served as a hearing officer, litigated in the Courts of Appeal, and 

performed the myriad of other functions of a Board agent, supervisor, and deputy 

regional attorney. Apart from my time with the NLRB, the remainder of my professional activity has been representing employers in traditional labor matters. 

On December 15, 2014, the NLRB published an extensive Final Rule, which revises on a wholesale basis, the regulations regarding union elections (Final Rule).2

The Final Rule will, among many things, dramatically shorten the period of time 

between a union filing an election petition with the Board and the actual holding 

of the election. It also will undermine an employer’s ability to mount a lawful, effective information dialog with its employees on whether or not to select union representation. The Final Rule, described by the two dissenting NLRB members as the 

‘‘Mount Everest’’ of regulations,3 took 733 pages to print when issued and occupied 

200 pages in the Federal Register. 

The Final Rule is a transparent attempt to circumvent Congress on the issue of 

how, if at all, to reform the Nation’s labor laws after the failure of the prior 111th 

Congress to pass the Employee Free Choice Act (EFCA), legislation supported by the 

labor movement that would have all but ended secret ballot elections at the NLRB 

in favor of ‘‘card check’’ recognition. 

I appreciate the difficulty and inherent tensions in working under the NLRA. The 

statute guarantees the right to engage in union activities. It also ensures the right 

to refrain from such activities. These tensions, since the early years of my career, 

have played out in ways that have become much more political, engrained, and contentious. In those beginning years, there tended to be slightly different emphases 

in NLRA interpretation based upon the prism through which the appointees at the 

Board viewed the Act. Over four of the last five presidential administrations, the 

proverbial envelope has been pushed. Appointees, supported by Republicans and 

Democrats alike, bear some measure of responsibility for the increased polarization. 

7 

4Dunlop Commission on the Future of Worker-Management Relations, Final Report at 41 

(Dec. 1, 1994). 5 Chamber of Commerce v. Brown, 554 U.S. 60, 67–8 (2008). 6 79 Fed. Reg. at 74,326 n.83. 

But, the changes that have brought us here today are of a different magnitude. 

They represent no less than an attempt by the NLRB to put its thumb on the scale 

in favor of union representation. 

In virtually every controversial NLRB initiative that I have witnessed in the past, 

the emphasis has been on enforcing the law while plugging opportunities for parties 

to violate the law or game the system. Unlike any of these other initiatives, however, this one transparently seeks to deprive law-abiding and nongames-playing employers of their right to communicate their views under Section 8(c) of the Act. The 

entire employer community is presumed to be on the wrong side standing ready to 

trample the rights of employees. The Final Rule also deprives employees of their 

right to receive key information from all sides in order to be fully informed on how 

and whether to exercise their Section 7 rights. 

Some key facts are relevant to the Final Rule’s background, and our discussion 

today: 

• Union density in the private sector has been on a decline and is currently below 

7 percent of the private sector workforce. Whatever the cause, the scope of which 

is beyond this debate, it is deeply distressing to organized labor. 

• Over the past 20 years, unions have been seeking alternatives to winning secret 

ballot elections, typically through neutrality and card check procedures, often obtained through the pressure of corporate campaigns. 

• As mentioned, unions have unsuccessfully sought legislation, through the Employee Free Choice Act, that would have functionally eliminated secret ballot elections conducted by the Board. 

• As virtually every NLRB agent knows, the longer the period of time between 

the filing of an election petition and an election, the less likely it is that the employees will select a union. This is so whether or not unlawful or objectionable conduct 

has occurred. 

• Over the decades, there have been legislative calls from organized labor to dramatically shorten the period of time from petition to election, and the possibility of 

shortened election periods was widely discussed during the policy debates surrounding the Employee Free Choice Act. No legislative change has occurred. 

At the time I served as a Member of the Board during the Clinton administration, 

there were similar calls for more rapid elections and to change the Board’s procedures following the Dunlop Commission’s Report.4 However, after considering these 

issues, the Board concluded that the requirement of a fulsome pre-election hearing 

prevented the Board from having an unfettered right to accelerate the election process. Angelica Healthcare Services, 315 N.L.R.B. 1320 (1995); Barre National, Inc., 

316 N.L.R.B. 877 (1995). The simple point was that the statute guaranteed an appropriate pre-election hearing. 

What has the Board now come up with in the Final Rule? It has proffered the 

gimmick of a hurried and emasculated hearing, a binding statement of position 

under the threat of waiver, offers of proof instead of actual testimony, preclusive 

rules to limit issues, and frenetic time deadlines that disregard other obligations of 

employers and their counsel, all in an attempt to get to the election as soon as humanly possible and without giving the employer time to communicate with its employees. On top of these problems, the Final Rule will lead to far fewer elections 

where the parties obtain decisions on voter eligibility and supervisory status issues 

before employees vote, thus throwing many more election campaigns into chaos and 

confusion. 

Open and free non-coercive speech and an opportunity to communicate is the law 

in place. As the Supreme Court stated recently, Congress’s overarching ‘‘policy judgment . . . favor[s] uninhibited, robust, and wide-open debate in labor disputes,’’ including the ‘‘freewheeling use of the written and spoken word.’’ 5

In the Final Rule, the Board majority acknowledged the perception of why these 

rules are being promulgated. As the Board said, 

‘‘[m]any comments additionally charge that the Board’s motivation for issuing 

the rule are improper in that the Board seeks to act as an advocate for unions 

(rather than as a neutral overseer of the process), to drive up the rates of union 

representation, and to ‘stack the deck’ against employers in union organizing 

campaigns.’’ 6

8 

7 79 Fed. Reg. at 74,460 (dissent). 

8 Id. at 74,430 (dissent). 9 Id. at 74,449 (dissent). 10 Id. at 74,434 (dissent). 11 Id. at 74,456 (dissent). 12 NLRB, Election Reports, http://www.nlrb.gov/reports-guidance/reports/election-reports 

(last visited Feb. 4, 2015). 13 79 Fed. Reg. at 74,341–42. 

The Board went on to disclaim any such desire. Regardless of the Board’s true 

motivations, this is the result of the Final Rule. The dissenting Board members 

aptly described the outcome: 

‘‘[T]he inescapable impression created by the Final Rule’s overriding emphasis 

on speed is to require employees to vote as quickly as possible—at the time determined exclusively by the petitioning union—at the expense of employees and 

employers who predictably will have insufficient time to understand and address relevant issues.’’ 7

Employees will, in practice, be asked to ‘‘vote now, understand later.’’ 8

In light of all available objective data regarding the Board’s election-related performance, the Final Rule is at best characterized as a ‘‘solution in search of a problem.’’ 9 Most glaringly, the Board did not find the ‘‘problem’’—significant delays, 

characterized as more than 56 days from petition to election—in more than a fraction of all cases. To the contrary, the evidence shows that significant delays occur 

in less than 6 percent of elections.10 The Final Rule is not even targeted to those 

6 percent of elections, but rather rewrites the procedures governing all elections. As 

the dissenting Board members put it, ‘‘[t]hese relatively few cases do not provide 

a rational basis for rewriting the procedures governing all elections.’’ 11 Nor can the 

Board claim that the current process results in unions losing far too many elections, 

as in the past 4 years alone unions have won over 60 percent of elections held.12

This objective data confirms that prior initiatives, although not always welcomed 

by all, have been extremely effective in implementing the policies and purposes of 

the Act. The Final Rule, unfortunately, will add further fuel to a perception that 

the Board is casting its own vote in favor of union representation rather than safeguarding the process by which employees can make this choice for themselves after 

having a reasonable opportunity to get information from all sides. 

Importantly, the Final Rule takes another inappropriate step by mandating that 

employers turn over employee personal telephone and email addresses to unions. 

Even worse, while acknowledging that ‘‘the privacy, identity theft, and other risks 

may be greater than the Board has estimated,’’ the Board nonetheless asserted that 

those ‘‘risks are worth taking.’’ 13 They are not worth taking. 

I wish it did not have to be the case, but my time spent with the Act informs 

me that no public good will come from the Final Rule. There will undoubtedly be 

proposed budget cuts, congressional backlash and increased oversight, such as this 

very hearing, and more politicization of the NLRB. This is neither good nor fair for 

the NLRB as an institution, its staff, or indeed the country. As President Obama 

observed on June 29, 2011: 

‘‘We can’t afford to have labor and management fighting all the time, at a 

time when we’re competing against Germany and China and other countries 

that want to sell goods all around the world.’’ 

This Final Rule by the Board will result not only in increased fights between 

labor and management; it will embroil the U.S. Government in a most unfortunate 

way. 

This concludes my prepared testimony. Thank you again for the invitation to appear today. I would be happy to answer any questions that members of the committee may have. 

The CHAIRMAN. Thank you, Mr. Cohen. 

Mr. Carter. 

STATEMENT OF MARK A. CARTER, ESQ., PARTNER, DINSMORE 

& SHOHL LLP, CHARLESTON, WV 

Mr. CARTER. Well, good morning, Chairman Alexander, Senator 

Murray, and Senators of the committee. On behalf of the U.S. 

Chamber of Commerce, thank you for inviting me to testify on this 

very important and very time-sensitive issue. 

9 

My name is Mark Carter. I’m a partner with the law firm of 

Dinsmore & Shohl in the great State of West Virginia. 

I have practiced law for nearly 29 years, focusing on labor relations, and this ambush regulation is the most dramatic revision to 

that process in that law that I have ever confronted. 

The National Labor Relations Act requires that employers, 

unions and employees have a right to communicate regarding organizing drives. The Supreme Court has recognized that. The Act reflects a policy judgment which suffuses the Act as a whole as favoring uninhibited, robust, and wide-open debate. 

Similarly, the Court has also held that an employer’s free speech 

right to communicate his views to his employees is firmly established and cannot be infringed by a union or the National Labor 

Relations Board. 

The pragmatic impact of the ambush election regulation is that 

it will effectively eliminate the opportunity of an employer to communicate his or her views regarding unionization with employees. 

At least one situation from my career is illustrative of how important it is that employers are able to tell their side of the story. 

In 2011, I represented an employer that was presented with a petition by the NLRB. In the course of the union’s campaign, the employees were told that their dues obligations would be significantly 

less than what the union had reported it charged members on a 

federally mandated form. The employer then published that form, 

which established what the union actually did charge for dues. 

Armed with this information, the employees voted not to be represented by that union. 

I am convinced that the free speech and free exchange of information that took place during that campaign helped those employees make this a very difficult and important decision. 

The ambush regulation shortens the time of an organizing drive 

from about 40 days to as few as 10 days. The fundamental principle behind the regulation is that it is far easier to win a campaign when the other candidate is unaware of the election. The 

companion principle is that if the other candidate is consumed by 

bureaucratic obligations for the period of the campaign, your 

chances of winning the election are nearly assured. 

This scenario is going to confront employers under the Board’s 

ambush regulation. First, the employer receives the petition and 

notice that they have to appear within 8 days, or in 8 days. Next, 

the employer has to find and hire a lawyer who understands labor 

law. Small employers generally don’t know a labor lawyer or have 

ever used one. In my experience, it takes an average of 3 business 

days to find and hire a labor lawyer. If that is a weekend or a holiday, it could be 5 or 6 calendar days. 

The day before the hearing, the employer must present a Statement of Position responding to 13 different areas of inquiry involving factual investigation, legal analysis, the composition of a brief, 

and the preparation of witnesses. If a lawyer fails to raise an issue 

that impacts those 13 areas, then that argument is waived. The 

NLRB has no obligation to consider supplemental argument, and 

all this must occur within 8 days. That simply is not going to happen. 

10 

1Of course, the Board’s ambush election regulation does not occur in a vacuum. Rather, the 

final regulation comes at a time when the Board is pushing various policies to dramatically 

overhaul labor law in favor of their union allies. Chief among these is the Specialty Healthcare 

decision and the potential change in the Board’s joint employer standard. 

What else won’t happen is that the employer will not be able to 

operate their business because they’re going to be consumed with 

filling out this form. More importantly, they will find it extremely 

difficult to communicate with their employees about the organizing 

campaign despite having the statutory right to do so. 

Two days after the direction of an election, the employer must 

provide a listing of all employees and their phone numbers and 

their email address and all of that personal information. That’s a 

major privacy issue. I’ve been involved in litigation involving violence by union officials in an organizing drive. There are good reasons employees do not want that information shared. 

The sum and substance of this regulation is that it makes it 

highly unlikely an employer can obtain legal advice and present 

their mandatory positions within the maximum of 8 days. Simultaneously, it will frustrate or prohibit the employer from operating 

its business and will deny the employer meaningful review of preelection determinations, and it frustrates or prohibits them from 

exercising their right to speak to their employees. 

More onerous is the regulation is damaging to employees. They 

are unlikely to receive any other perspective other than the union’s 

in an organizing campaign. 

That concludes my prepared testimony. 

[The prepared statement of Mr. Carter follows:] 

PREPARED STATEMENT OF MARK A. CARTER, ESQ. 

Good morning Chairman Alexander, Ranking Senator Murray and Senators of 

this committee. On behalf of the U.S. Chamber of Commerce, thank you, for inviting 

me to testify on this very important and time-sensitive topic. The Chamber is the 

world’s largest business federation, representing more than three million businesses 

of all sizes, industry sectors, and geographical regions. 

My name is Mark Carter. I am the Labor Practice Group Chair and a partner 

with the law firm of Dinsmore & Shohl LLP. I have spent most of my career representing employers in labor relations matters. This does not mean I never agree 

with unions. In fact, during my 7-year tenure as a member of the Federal Service 

Impasses Panel during the Administration of President George W. Bush, I frequently voted for unions in matters brought before the Panel. However, because I 

have represented employers in my private practice of law, I have a better ability 

to testify regarding their perspective and posture as it relates to the NLRB’s ‘‘ambush’’ election regulation. 

I have practiced law for nearly 29 years focusing on labor relations law and the 

NLRB’s ambush regulation is, without question, the most dramatic revision to the 

processes surrounding that law I have ever confronted. Mr. Chairman, I have reviewed the very technical changes that this regulation makes to the union election 

process and I conclude that the changes wrongly accelerate the election process to 

the detriment of both employers and employees. But let me cut to the chase here. 

I have been involved in numerous union election campaigns and this regulation will, 

quite simply, stack the deck against employers while depriving employees of information they need to make a rational decision. While the purpose is clouded behind 

numerous technical adjustments to the current process, that will be the end result. 

And unfortunately we know that is indeed the very purpose of this regulation. 

With your permission, Mr. Chairman, I hope to describe for the committee some 

of the challenges which will confront employers in not only complying with the regulation, but more importantly, the insurmountable challenge of exercising their rights 

as created by Congress in the National Labor Relations Act while complying with 

the regulation.1

11 

2 29 U.S.C. § 158(c). 

I. THE NLRB’S AMBUSH REGULATION RESTRICTS EMPLOYERS’ STATUTORY FREE SPEECH

RIGHTS

Before discussing the Board’s ‘‘ambush’’ regulation, at the outset, I believe it is 

important to note that although it is not perfect, the current representation system 

works well. In my experience, I have seen unions win elections and I have seen 

unions lose elections. I have also seen both employers and unions effectively avail 

themselves of the Board’s processes when they thought their rights were violated 

during a union organizing drive. Thus, in my opinion, there is simply no need for 

this regulation; which makes its true purpose—to increase union membership 

rolls—that much more apparent. 

As already noted, the regulation is known in the management community as the 

‘‘ambush election’’ regulation. The NLRB has described the regulation as the ‘‘final 

rule governing representation-case procedures.’’ It has been referred to as the ‘‘ambush election’’ regulation because the regulation reduces the timeframe of a representational organizing campaign by a labor union from approximately 40 days to 

as little as 10 days. The dramatically shorter timeframe is seen by employers as an 

‘‘ambush’’ in that the employer is unprepared for and unable to effectively respond 

to the petition for representation in the very short timeframe mandated by the new 

regulation. 

Though couched in terms of fairness and efficiency, the fundamental principle of 

the ambush election regulation is that it is far easier to win a campaign when the 

other candidate is unaware of the election. A companion principle is that if the other 

candidate is consumed by bureaucratic obligations for the period of the campaign, 

your chances of winning the election are nearly assured. 

The fundamental flaw in these principles for the National Labor Relations Board 

is that they are in direct contravention to the letter and intent of the statute they 

are obligated to enforce. 

Section 8(c) of the National Labor Relations Act 2 states that: 

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), 

if such expression contains no threat of reprisal or promise of benefit. 

The statute clearly anticipates that employers, unions and employees have a right 

to communicate regarding the benefits of, or negative impact resulting from, union 

organizing drives. The U.S. Supreme Court has recognized that § 8(c) of the Act reflects a ‘‘policy judgment, which suffuses the NLRA as a whole, as favoring uninhibited, robust and wide-open debate in labor disputes.’’ Chamber of Commerce v. Brown, 554 US 60, 67–68 (2008). Similarly, our Supreme Court in NLRB v. Gissel 

Packing Co., 395 US 575, 617 (1969) recognized that, 

‘‘An employer’s free speech right to communicate his views to his employees 

is firmly established and cannot be infringed by a union or the National Labor 

Relations Board.’’ 

The pragmatic impact of the ambush election regulation will necessarily infringe 

upon an employer’s free speech right by virtually eliminating the opportunity of an 

employer to communicate his or her views regarding unionization with employees. 

Similarly, the legislative goal of stimulating a full and robust debate amongst employees regarding union representation is stifled, if not eliminated, by engineering 

a process for a representational election where the employee only hears one side of 

the debate—and is deprived of engaging in a full discussion with everyone involved 

in the debate. 

At least one situation from my career representing management is illustrative of 

how vitally important it is that employers are able to tell, and employees are able 

to hear, a side of the story that is not being told by union organizers. In 2011 I 

represented an employer that was presented with a representation petition by the 

NLRB. In the course of the union’s campaign, it had represented to the employees 

that their dues’ obligations would be significantly less than what the union had reported it charged members on a federally mandated form unions are required to file 

with the U.S. Department of Labor. The employer then published the LM–2 form 

filed by the union with the government which established what the union actually 

charged for dues. Armed with this information and other information that was disseminated by both the union and the employer during the campaign the employees 

voted not to be represented by the union. I am convinced that the free exchange 

of information that took place during that campaign helped those employees make 

this very important decision. When unions and employers are able to join in free 

12 

3 79 Fed. Reg. at 7377 n. 46. 

4The scope of issues which a hearing officer would consider at the hearing is not precisely 

defined, in part, because the necessary form the Respondent—or Employer —would be required 

to complete identifying the issues has not been published. The regulation anticipates the publication of a ‘‘Statement of Position’’ form. However, to date, one has not been available. 

and robust debate regarding unionization, the employees are able to learn more and 

are better able to determine whom they believe and whom they discredit. This debate will not happen under the ambush election regulation. 

Indeed, upon the effective date of the ambush election regulation, labor unions 

will be highly encouraged to organize by stealth without any bilateral debate. A 

labor union enjoys a distinct advantage in persuading employees regarding the benefits of union membership without the employer’s knowledge of their effort because 

the employer is then unaware of any reason to communicate its views on the subject 

and is unable to rebut arguments that it is unaware of. The union is thereby in a 

posture to campaign toward an election that the employer is unaware of. In this 

way, the regulation very much mirrors the Employee Free Choice Act, which would 

have limited employers’ abilities to communicate to employees because of its card 

check provision. 

Ultimately, the employer becomes aware that an organizing campaign has been 

underway by the same mechanism existing under the current regulations: the employer will receive a copy of a petition for a representational election, and the election may occur in as little as 10 days after. The employer and employees are then 

at a distinct disadvantage. Moreover, as set forth in detail below, the burdens upon 

the employer from that point will be dramatically more difficult to accomplish at 

every successive step of the process. 

II. THE INITIAL HEARING AND STATEMENT OF POSITION REQUIREMENTS ARE UNDULY

BURDENSOME

By way of illustration, the following scenario will confront employers under the 

Board’s ‘‘ambush’’ election regulation. It is important to recall in reviewing this testimony that the median number of employees in a bargaining unit petitioning for 

representation before the NLRB from 2004 through 2013 was 23 to 28.3 Employers 

who employ this volume of employees, in my experience, do not retain in-house 

counsel—much less counsel with experience practicing before the NLRB. Indeed, 

most of the employers whom I have served of this relative size were unfamiliar with 

any attorneys who focused on, or merely had experience practicing law before, the 

NLRB. As such, the first task facing an employer who desires to respond appropriately to a representational petition is the task of locating and retaining competent counsel. An ordinary timeframe for that task, in my experience, is approximately 3 business days (if the petition was filed on a Friday and/or holiday weekend 

that could extend the period to 5 or 6 calendar days.) 

Under the final rule, the NLRB will schedule a representational hearing within 

8 calendar days of the date the petition is filed. The day before the hearing the employer must present a Statement of Position articulating, inter alia., all of the possible legal arguments it desires the NLRB to consider regarding the petition.4 This 

Statement of Position is, for all intents and purposes, a legal brief—a combination 

of factual and legal analysis—which is an outrageous requirement to ask of employers, and particularly those small employers who do not have legal counsel. Worse, 

if the employer fails to include a particular argument in the Statement of Position, 

those arguments are waived, meaning that the employer will not be able to 

raise them at the hearing. Clearly, this raises serious due process concerns and 

is another example of how the rule stacks the deck in favor of labor unions. 

There are 13 types of information and/or positions the employer is required to 

gather and present in the 7 days following a petition. A quick review of these 13 

categories demonstrates how incredibly difficult it will be for employers—and particularly small employers—to provide such information to the Board in such a short 

timeframe. They are: 

1. Whether the employer agrees that the NLRB has jurisdiction. This is a 

legal issue that an employer or lawyer unfamiliar with the Act would need to research. 

2. Whether the employer is in ‘‘interstate commerce’’ as defined by the 

Act. 

3. Whether the employer agrees with the proposed bargaining unit. This 

answer requires a legal analysis of the description and the propriety of the types 

of employees [statutory employee or supervisory] who are described. 

13 

4. If not, the basis for the employer’s contention that the unit is not appropriate. This response requires a blended factual and legal argument focused on 

the type of work accomplished by the individuals who work within the described 

unit and a legal basis establishing why certain employees should not be included, 

certain locations should not be included, or why the unit should be expanded to include other employees. 

5. Description of the most similar unit that the employer concedes is appropriate. This response would require the employer to describe a unit of its own 

making that is ‘‘most similar’’ to the unit described by the union and admit that 

the unit is appropriate, again, precluding the employer from challenging the propriety of the forced admission of an ‘‘appropriate’’ unit. 

6. Identify any individuals occupying classifications in the petitioned for 

unit whose eligibility to vote the employer intends to contest and the basis 

for each such contention. To respond to this would be practically impossible in 

a large unit. Employers can object to the inclusion of workers being included in a 

unit for a variety of reasons. They may be supervisors, employed by contractors, professionals, or meet other descriptions. Given the cumulative obligations of the final 

rule, and the absence of a real opportunity to investigate, this burden is unrealistic 

and not likely to be complied with in any but the most modest of proposed units. 

7. Raise any election bar. This response will require legal analysis and factual 

analysis involving previous union representation at the facility or past representational election history. 

8. State the employer’s position concerning the type, dates, times and locations of the election and the eligibility period. This response requires an understanding of what the final unit will be. The unit may involve two or more locations of an employer’s business and where that issue is not resolved, an employer 

will be precluded from making a predictive or useful response. 

9. Describe all other issues the employer intends to raise at the hearing. 

This response requires a comprehensive factual and legal identification of any objection or issue the employer could articulate and if it fails to do so, the issue is 

waived. This aspect of the required position is the single most unrealistic and unjust 

of the requirements of the position statement. 

10. Name, title, address, telephone number, fax number and e-mail address of the individual who will serve as the representative of the employer 

and accept service of all papers for purposes of the representational proceeding. This response will ordinarily require retention of counsel or a representative. 

11. Full names, work locations, shifts and job classification of all individuals in the proposed unit. Beyond being a laborious task (for example, many nonunion represented employees do not have job ‘‘classifications’’) § 102.63(b)(iv) will require the employer to disclose the employees’ telephone numbers, home addresses 

and e-mail addresses. This disclosure subjects employees, at a minimum, to the inconvenience of potentially unwanted and uninvited emails, telephone calls and home 

visits from union organizers. However, given the unsavory history of labor organizing, the risks associated with divulging this personal information are greater. 

12. Full names, work locations, shifts and job classifications of all individuals in the most similar unit the employer concedes is appropriate. As with 

No. 5 above, this section requires the employer to identify and concede the propriety 

of the ‘‘most similar’’ unit to the unit identified by the petitioning union. Not only 

is the concession required, but an identification of the employees, their shifts and 

classifications is required. 

13. The list of names shall be alphabetized and in an electronic format 

approved by the Board’s Executive Director unless the employer certifies 

that it does not possess the capacity to produce the list in the required 

form. 

Cumulatively the obligations recited above are in and of themselves onerous given 

the allotted time for a response; but two specific factors exacerbate the situation. 

First, the Statement of Position must be presented at the representational hearing 

which must occur within 8 calendar days. During this time, the employer would 

have to retain counsel, research and review all of the information mandated, as well 

as prepare witnesses to testify to support its factual allegations. This scenario is untenable. 

The second reason is that during the period it is preparing this information, it 

is presumed that the employer is, of course, simultaneously: (1) continuing to operate its business; and (2) exercising its rights under § 8(c) of the Act to communicate 

with its employees regarding the petition to further the robust and full debate that 

is the goal of the statute. Under the ambush election regulation, the reality is that 

neither is likely to happen. Instead, the employer will be so consumed with 

14 

5This list of employees is commonly called the ‘‘Excelsior’’ list. 

populating the Board’s file regarding the petition that its ability to operate its business and its right to communicate with its employees will be at best frustrated if 

not flatly eliminated by the requirements of the regulation. 

III. THE VOTER ELIGIBILITY LIST RAISES CONCERNS FOR BOTH EMPLOYERS AND

EMPLOYEES

But the employer’s obligations do not end there. Within 2 days of the receipt of 

a direction of election, which should follow the hearing in rapid fashion, the regulation requires the employer to produce a final voter eligibility list. The list, 5 in many 

respects, is anticipated by the Statement of Position, but here the regulation is very 

clear that the list must contain the employees’ home address, telephone number, 

and e-mail address. This information currently is not required to be produced under 

NLRB regulation. This sensitive and personal information must be provided regardless of whether the employee authorizes its production. I have personally been involved in cases in which union officials engaged in violence when they did not get 

what they wanted, so I understand why divulging this sensitive information raises 

serious privacy concerns for employees. 

For employers, the 2-day turnaround time will be very difficult to satisfy. Most 

employers, but especially small employers, do not have large Human Resources department staffs and often rely on one person to perform all HR functions. The task 

of assembling the voter eligibility list will likely fall on the shoulders of this individual who will also likely be occupied performing their daily activities: administering payroll, interviewing job applicants, processing FMLA requests, meeting 

with benefit vendors, etc. And what if this individual is out of town or otherwise 

unavailable during this 2-day period for illness, vacation, a funeral or training? 

Then the employer may be out of luck, and submitting an inaccurate or untimely 

voter eligibility list could be grounds for overturning the election results. 

The regulation also eliminates the 25-day limitation on the scheduling of an election. Currently, the NLRB prohibits the scheduling of an election for at least 25 

days after the issuance of the regional director’s decision and direction of election 

in order to allow time for the Board to review any subsequent appeal. Further, the 

parties may currently seek review of a regional director’s order of an election as of 

right on a variety of legal determinations such as who the eligible voters will be 

and what the proper bargaining unit voting will be. Under the final rule, there is 

no pre-election review as of right and the regional director is free to order an immediate election within his or her discretion as the 25-day period has been removed. 

Theoretically, the regional director could direct the election to take place the day 

after the hearing, or, only 10 days after the petition was filed. The elimination of 

this 25-day period pragmatically eliminates the possibility of an employer campaign, 

to the obvious detriment of employers, but also to the detriment of employees, who 

will only hear one side of the story. 

IV. CONCLUSION

The sum and substance of this regulation is that it: 

(1) Makes it highly unlikely an employer can obtain legal advice to compile and 

present mandatory positions within the maximum 8 days between a representational petition and representational hearing; 

(2) Simultaneously frustrates or prohibits the employer from operating its business while it is gathering and preparing the mandatory statement of position; 

(3) Denies the employer meaningful review of pre-election legal determinations by 

a regional director; and 

(4) Frustrates or prohibits the employer from exercising its § 8(c) rights to communicate with its employees prior to the election. 

However, as onerous as the regulation is to employers, it is most damaging to employees. Employees, seemingly by design, are likely to receive only the union’s perspective in an organizing campaign instead of the full and robust debate of the 

issues anticipated by Congress in creating the Act. They will be compelled to make 

this profoundly important decision on the basis of ‘‘half ’’ of the facts in direct contravention to the purposes and policies behind the law. Moreover, in the process, 

their privacy rights will necessarily become diluted and the risks attendant to that 

status will multiply. The ‘‘level playing field’’ that Congress has sought to preserve 

in the area of labor relations will be abandoned in a plain effort to provide labor 

unions with the upper hand, and this imbalance will be the work product of a regulatory agency without any involvement by Congress itself. 

15 

For the reasons described above, the Chamber opposes the NLRB’s ambush election regulation. Mr. Chairman and members of the committee, we thank you for the 

opportunity to share some of those concerns with you today. Please do not hesitate 

to contact me or the Chamber’s Labor, Immigration, and Employee Benefits Division, if we can be of further assistance in this matter. 

The CHAIRMAN. Thank you, Mr. Carter. 

Ms. Milito. 

STATEMENT OF ELIZABETH MILITO, SENIOR EXECUTIVE 

COUNSEL, NATIONAL FEDERATION OF INDEPENDENT BUSINESS (NFIB) SMALL BUSINESS LEGAL CENTER, WASHINGTON, DC 

Ms. MILITO. Thank you. Good morning, Chairman Alexander and 

Ranking Member Murray and other members of the committee. 

NFIB, the Nation’s largest small business advocacy organization, 

appreciates the opportunity to testify about the impact on small 

businesses of the NLRB’s new union election rule. 

Today, employers in a small business contend with anti-discrimination laws, family medical and other protected leave laws, wage 

and hour laws, privacy laws, workplace safety laws, and labor laws. 

They often struggle to decipher the mysteries of overlapping and 

sometimes even conflicting Federal, State, and local laws. 

The problem is compounded by the fact that small businesses 

generally don’t employ a human resources specialist or attorney, or 

keep an outside counsel on retainer to advise the business owner. 

Imagine, then, the challenge facing America’s small businesses 

when it comes to understanding and complying with labor law. 

Holding a union election in as little as 10 to 14 days makes absolutely no sense unless the goal is to complicate the process and reduce an employee’s chance to make an informed decision. 

During my comments today, I want to emphasize the disadvantage that the small business owners face when it comes to responding to an election petition. 

First, the abbreviated schedule and the new rule will make compliance exceedingly difficult for the small business owner, who will 

likely need to drop all other business duties to meet the NLRB 

deadlines. Without in-house expertise, small firms will need outside help, but finding help will take time. As Mr. Carter noted in 

his testimony, many employers can’t name a single labor attorney. 

In fact, many NFIB members with whom I speak on a daily basis 

can’t give me the name of a single attorney, period, much less a 

competent labor attorney. 

Second, besides finding counsel who can handle the procedural 

and logistical issues associated with drafting and filing a Statement of Position within about 8 days, the employer really needs to 

develop and employ a strategy for communicating the business’ position to its employees. Such communication is exceedingly tricky 

and fraught with landmines to the unskilled spokesperson. I can 

also assure you that the businesses with whom I work do not have 

any sort of anti-union inoculation program in place before an organizing drive starts. That’s why NFIB has developed a guide in responding to a union organizing campaign. Our little handbook is no 

substitute for competent legal advice and learning about exactly 

what an employer can or cannot say during an organizing drive. 

16 

1http://www.nfib.com/about-nfib/what-is-nfib-/who-nfib-represents (last visited February 9, 

2015). 

Communication with employees is a protected right of employers 

under the Act, and NFIB is very concerned that the rule’s short 

timeframe will prevent employers from effectively communicating 

with their employees about the unionization process. 

Finally, NFIB is also very concerned about requiring employers 

to disclose confidential information about employees to union organizers, including phone numbers and personal email addresses. 

Even assuming that the employer has this information, employees 

might have provided their employer with a personal email address, 

unlisted home phone number, or a personal cell phone number for 

emergency contact purposes only. Disclosing this information to a 

union organizer without the employee’s consent would create a 

breach of trust and animosity on the part of employees and undermine employer-employee relations. This is particularly so in a 

small business, where the owner is often responsible for keeping 

personnel records and other sensitive information which the employee deems confidential. 

Today, the union election process takes about 38 days, generally 

enough time for unions to make their case and for employers to 

make theirs, and for employees to have the information they need 

from both sides to make an informed decision. By issuing this ambush election rule twice now, the NLRB has on two occasions failed 

to demonstrate any need for change. The new rule will accomplish 

nothing more than the holding of elections at lightning speed while 

reducing employees’ chances of making informed decisions about 

the issue. For these reasons, NFIB has objected to the rule. 

Thank you for the opportunity to testify here today, and I look 

forward to answering any questions you might have. 

[The prepared statement of Ms. Milito follows:] 

PREPARED STATEMENT OF ELIZABETH MILITO

Dear Chairman Alexander, Ranking Member Murray and members of the committee, thank you for inviting me to testify today regarding the impact on small 

business of the National Labor Relations Board (NLRB) new union election rule. My 

name is Elizabeth Milito and I am senior executive counsel for the National Federation of Independent Business (NFIB) Small Business Legal Center. 

NFIB is the Nation’s leading small business advocacy association, representing 

members in Washington, DC, and all 50 State capitals. Founded in 1943 as a nonprofit, nonpartisan organization, NFIB’s mission is to promote and protect the right 

of its members to own, operate, and grow their businesses. NFIB represents 350,000 

independent business owners who are located throughout the United States and in 

virtually all of the industries potentially affected by these rules and decisions. 

The NFIB Small Business Legal Center is a nonprofit, public interest law firm 

established to provide legal resources and be the voice for small businesses in the 

Nation’s courts through representation on issues of public interest affecting small 

businesses. 

NFIB’s national membership spans the spectrum of business operations, ranging 

from sole proprietor enterprises to firms with hundreds of employees. While there 

is no standard definition of a ‘‘small business,’’ the typical NFIB member employs 

10 people and reports gross sales of about $500,000 a year. Roughly 15 percent of 

NFIB members employ 10–20 people and approximately 28 percent have 10 or more 

employees.1 The NFIB membership is a reflection of American small business, and 

I am here today on their behalf to share a small business perspective with the committee. 

17 

2https://www.sba.gov/sites/default/files/FAQlMarchl2014l0.pdf (last visited February 9, 

2015). 3 Id. 4 Id. 5 Impact of Regulatory Costs on Small Firms, https://www.sba.gov/sites/default/files/The% 

20Impact%20of%20Regulatory%20Costs%20on%20Small%20Firms%20(Full).pdf (last visited 

February 9, 2015). 

Currently, small businesses in this country employ nearly half of all private-sector 

employees.2 Small businesses pay 42 percent of total U.S. private payroll.3 And 

small businesses generated 63 percent of net new jobs over the past 10 years.4

Small businesses are America’s largest private employer. 

Today, small business owners contend with antidiscrimination laws, family, medical and other protected leave laws, wage and hour laws, privacy laws, workplace 

safety laws and labor laws. They often struggle to decipher the mysteries of overlapping, sometimes even conflicting, Federal, State and local laws. These laws and regulations also are expensive; according to the Small Business Administration, workplace compliance costs small business nearly 36 percent more, per employee, than 

it costs large businesses.5

The problem is compounded by the fact that small businesses often cannot afford 

human resources or legal departments to give them advice on the laws. Small business owners work hard to do what is right, but their informal and unstructured nature and more limited financial resources means that they sometimes require greater flexibility in creating policies and solutions. While changes to the Board’s current 

rules on election procedures would affect businesses of all sizes, NFIB is primarily 

concerned about the impact on the country’s smallest employers—those like the typical NFIB member who employs 10 people. When it comes to labor issues, NFIB’s 

constituency is very unique as compared to most businesses represented by other 

trade and business associations: 

• Very few NFIB members have a dedicated human resources professional. 

• Even fewer, if any, NFIB members have a dedicated labor relations expert or 

in-house counsel. 

• Typically all employment and labor matters are the direct responsibility of the 

small business owner. 

Imagine, then, the challenge facing America’s small businesses—the backbone of 

our economy—when it comes to understanding and complying with labor law. Suffice it to say that labor law is particularly difficult for a small business owner to 

understand. The current NLRB is changing the law by reversing precedential decisions, promulgating new rules, and expanding enforcement through increased penalties. And this is not new or unique to the current NLRB; with each new administration comes new direction at the NLRB. Even experienced labor lawyers struggle 

to keep up with an ever-changing legal landscape. It is doubly difficult for small 

business owners to understand the quirks and nuances of labor law, which sometimes can seem illogical and counterintuitive. 

Today I will discuss how the NLRB’s new election rule will impact small businesses. I will attempt to provide insight into how small businesses handle labor 

matters, and highlight some of the differences between how small business owners 

and large corporations operate. 

THE AMBUSH ELECTION RULE

NFIB has 350,000 members across the country. They are honorable and fair employers, and they are troubled, confused, and scared by the decisions and rules coming out of the NLRB. Small businesses around the country cannot understand why 

the NLRB is trying to pass a wish list drawn up by organized labor. As I will discuss more below, few small businesses employ in-house counsel—leaving them to decipher complicated labor laws on their own. Holding a union election in as little as 

14 days makes absolutely no sense unless the goal is to complicate the process and 

reduce an employee’s chance to make an informed decision. 

For this reason, NFIB has stood up for small businesses to challenge the actions 

of the NLRB. The Board’s new ambush election rule will significantly undermine 

an employer’s opportunity to learn of and respond to union organization by reducing 

the so-called ‘‘critical period,’’ from petition filing to election, from the current median of 38 days to as few as 14 days. NFIB objected to the first version of this ambush election rule when it was issued in 2011. The 2011 rule was subsequently 

struck down by a Federal court, which noted the current election process allows 

enough time for unions to make their case and for employers to make theirs, after 

which employees have the information they need to make an informed decision. By 

18 

6 Chris Riddell, ‘‘Union Certification Success Under Voting Versus Card-Check Procedures: 

Evidence from British Columbia, 1978–98’’ 57 ILR Rev. No. 4. (2004), p. 498. 

issuing the identical rule again last year, NLRB completely abandoned its role as 

a neutral arbiter between employer and employee—and instead created a rule that 

makes unionization easier with a devastating cost to America’s job-creators. 

Our Nation’s labor law was conceived for the purpose of protecting the free flow 

of commerce by encouraging collective bargaining to avoid disruptions. Under the 

76-year-old National Labor Relations Act (NLRA), bargaining about employees’ 

terms and conditions of employment can only occur between employers and labor 

organizations chosen by employees to be their representatives. The starting point 

for representation is employee choice. Choice is the act of selecting freely following 

consideration of options. Section 8(c) of the NLRA encourages ‘‘free debate on issues 

dividing labor and management.’’ For an employer to engage, it must first become 

aware. As Canadian experience proves covert union campaigning results in significantly higher rates of union representation over an open exchange of views by both 

the union and the employer to inform employees and respond to issues raised.6

In its written comments in both 2011 and 2014, NFIB requested that the Board 

consider small business’ lack of experience, knowledge, and resources to defend their 

interests regarding labor law process and procedures. The Board ignored NFIB’s 

comments and proceeded with its rule. As a result, employee-informed choice and 

due process notice and hearing required by the NLRA’s Section 9 will be compromised, particularly in small businesses that lack labor relations expertise and inhouse legal departments. 

For a small business owner, nothing is a substitute for more time. Small-business 

owners are legally bound to follow, and therefore to know and understand, every 

rule and regulation that impacts them. That includes the differing requirements 

promulgated by every jurisdiction in which they operate. As a practical matter, this 

presumption is fiction. No small-business owner, let alone a reasonably large staff 

of experts, can recognize, understand, and implement the thousands of pages of 

rules that they must obey. Further, this continuing task must be undertaken while 

operating a business well enough to make its continuation worthwhile. 

Despite a legal presumption that is impossible, most small business owners make 

a good faith effort to comply with all regulations and laws. So without in-house expertise, small firms will need outside help but finding help can take time. Because 

of the time it might take to find counsel, it is imperative that small businesses be 

able to request a postponement of the pre-election hearing and maintain the status 

quo with regards to the election timeframe. 

Unfortunately, the abbreviated schedule in the new election rule will make compliance with pre-election procedures—including the labor intensive project of producing a preliminary voter list with detailed information about each voter—exceedingly difficult for the small business owner who will likely need to drop all other 

business duties to meet NLRB deadlines. And the short timeframe will lead to more 

errors in election procedures by all parties and make it more likely that objections 

will be filed and elections set aside. As crafted, the NLRB’s rule deprives employees 

of making an informed choice, strips small businesses of due process, and compromises employee rights as set forth in the NLRA. In contrast, the current union 

election process takes a median of 38 days—generally enough time for unions to 

make their case and for employers to make theirs, and for employees to have the 

information they need to make a fully informed decision. 

The new rule does not properly balance the rights of employees, employers, and 

labor unions in the pre-election period, and the shortened timeframes deprives employers of their due process rights under the Act. For those employers receiving petitions, the new rules would be virtually impossible to navigate without hiring specialized legal counsel on an emergency basis. Between preparation of a Statement 

of Position, dealing with required notice posting and managing the tasks necessary 

to prepare for an election, small entities will be running up significant legal fees 

at an alarming rate. Despite the NLRB’s repeated contention the rule would reduce 

litigation, its lack of clarity, compressed timeframe, and shifting of administrative 

burdens to employers is much more likely to increase litigation and, therefore, expense. 

This short timeframe will also not provide small business owners with adequate 

time in which to obtain legal assistance and lawfully inform their employees of the 

consequences of choosing union representation. Communication with employees is a 

protected right of employers, and NFIB is very concerned that the rule will prevent 

employers from effectively communicating with employees about the unionization 

process. 

19 

NFIB is also very concerned about the new rule requiring employers to disclose 

confidential information about employees to union organizers, including phone numbers and email addresses. Even assuming that the employer has this information, 

employees might have provided their employer with a personal email address, unlisted home phone number, or a personal cell phone number, for emergency-contact 

purposes only. Disclosing this information to a union organizer without the employee’s consent would create a breach of trust and animosity on the part of employees 

and undermine employer-employee relations. This is particularly so in a small business where the owner is often responsible for keeping personnel records and other 

information, which the employee deems confidential. 

NFIB also objected in its written comments to the NLRB’s decision to limit the 

scope of pre-election hearing issues. The new rule will limit the pre-election hearing 

to determine only whether a question concerning representation exists. This means 

that many issues of voter eligibility, including supervisor status, would be deferred 

to post-election procedures. As a result, employees would vote in an election without 

knowing which employees will ultimately make-up the bargaining unit. And some 

employees who vote might be found ineligible to be part of the bargaining unit. For 

small businesses, deferral of issues essentially means waiver and defeat. A small 

business simply cannot afford on-going litigation and legal fees. 

To ensure due process in representation case matters, Congress amended section 

9 requiring the Board to investigate each petition, provide an appropriate hearing 

upon due notice, and decide the unit appropriate. With the Board’s new election 

rule, NFIB believes that employee informed choice and due process notice and hearing required by Section 9 of the NLRA will be compromised, particularly for small 

businesses that lack labor relations expertise and in-house legal departments. 

CONCLUSION

Today, the union election process takes a median of 38 days—generally enough 

time for unions to make their case and for employers to make theirs, and for employees to have the information they need to make a fully informed decision. By 

issuing this ambush election rule twice, the NLRB has, on two occasions now, failed 

to demonstrate any need for change. The new rule will accomplish nothing more 

than the holding of elections at lightning speed, while reducing employees’ chances 

of making informed decisions about the issues. For all these reasons, NFIB has repeatedly objected to the rule and has now challenged the issuance of the rule in 

Federal court. 

NFIB looks forward to working with the committee on this and other workplace 

issues important to small business and thanks the members for their time today. 

The CHAIRMAN. Thank you, Ms. Milito. 

Ms. Sencer. 

STATEMENT OF CAREN P. SENCER, ESQ., SHAREHOLDER, 

WEINBERG, ROGER & ROSENFELD P.C., ALAMEDA, CA 

Ms. SENCER. Chairman Alexander, Ranking Member Murray, 

and members of the committee, thank you for this opportunity to 

testify about the National Labor Relations Board’s rule to streamline and modernize election procedures. 

I have brought exposure to the NLRB representation process and 

have assisted clients in well over 200 representation petitions, with 

direct involvement in 27 petitions in the last year alone. 

The Board’s first and utmost concern should always be the rights 

of workers seeking to use its process. The Board’s efforts to update 

its election procedures to conform to modern technology and existing practice furthers this purpose. 

In my view, the Board’s rules are not radically different than the 

status quo. They reflect an attempt to standardize some of the best 

practices and create consistency among regions. 

The rules reduce unnecessary delay, simplify the procedure, and 

provide more notice of the process while maintaining rights for review. This will save time and money for employers, unions, and the 

20 

government, while promoting the ability of employees to exercise 

their right to vote. 

When an employer does not voluntarily recognize a union, the 

representation process starts with the petition being filed. A hearing is set for somewhere between 7 and 12 days. By requesting an 

extension supported by the thinnest of excuses, the hearing is postponed up to a week. During this time, while the employer is claiming it’s trying to figure out which employees should be in the bargaining unit, the employer’s anti-union campaign continues and 

goes into full swing. It is not uncommon for employers to have antiunion consultants talking to workers within 48 hours of a petition 

being filed. 

Meanwhile, the region is attempting to mediate a stipulated election agreement. A stipulated agreement resolves all or nearly all 

issues without a hearing and, like most mediated resolutions, involves compromise. But because the current hearing process is regularly exploited, the compromising party is almost always the 

union. 

The alternative to the agreement is a hearing, which may take 

a number of days, closing briefs a week later, and another week to 

1 month until the regional director issues a decision and direction 

of election. This is followed by 25 days to seek review. The election 

takes place 65 days or more after the petition was filed. Based on 

this reality, unions often concede to the demands of the employer 

for a unit to be defined in a particular manner, and for the election 

to be held when the employer wants. 

The NLRB’s rules neutralize some of this leverage by eliminating 

opportunities for unnecessary litigation. The new Statement of Position form will focus hearings. A decision would issue faster because post-hearing briefs would be reserved for only complicated 

and novel cases. Briefs are not necessary in the vast majority of 

cases, which raise either a question of supervisory status or community of interest, two areas of settled Board law. The 25-day 

delay for pre-election review would be eliminated, but each party 

would retain the right to file a request for pre-election review or 

could choose to seek review as part of the post-election procedure 

if an issue still needs to be resolved. 

When a petition goes to hearing, the election would be about a 

month later rather than two. The employers call this an ambush, 

but that’s overly dramatic. Some elections would undisputedly be 

held sooner, but not in the 11 days some employers and trade associations have suggested. For that to occur, the petition would have 

to be filed on a day other than a Friday, the regional director 

would have to issue the decision and direction of election the day 

the hearing is held, and the union would have to waive all of the 

10 days it’s entitled to review and utilize the voter eligibility list. 

This series of events is extremely unlikely. 

The employers also claim ambush in completing the Statement 

of Position form as some may not have counsel or other experienced 

staff available to respond. Most employers have some type of counsel and participate in at least one trade organization that can 

quickly put them in touch with labor counsel. 

More importantly in my experience, nearly all employers have 

knowledge of a union organizing campaign prior to the filing of the 

21 

petition. The process should not cede workers’ rights to a prompt 

election because of the employer’s failure to act. 

I’d like to use an example from my practice of how the new rules 

would make a position difference. Last year, a union petitioned for 

a unit of a single job classification. The employer asked to reschedule the representation hearing. The day before the rescheduled 

hearing, it was clear there would be no stipulation as the employer 

sought to double the size of the proposed bargaining unit. The employer informed the region it would not appear at the hearing. The 

union still had to appear and provide testimony about its labor organization status, the Board’s jurisdiction, and the propriety of the 

proposed unit, which was presumptively appropriate. 

The decision and direction of election issued a month later and 

included a 25-day waiting period for potential review, notwithstanding the employer’s refusal to participate in the process. The 

employer then delayed in agreeing to a date for an election. Sixtyseven days passed between the filing of the petition and the election. 

If the rules were in place, the continuance of the hearing would 

likely have been denied. Upon the employer’s failure to appear, the 

regional director could have issued a decision without hearing testimony. The employer would have had 2 days to produce the voter 

eligibility list. If the rules were in place, the election would have 

been held around 46 days after the petition was filed. An employer 

argument that 46 days of an ambush is simply not compelling. 

I would be happy to answer any questions, and I hope my experience with the Board’s procedures is helpful to this committee. 

[The prepared statement of Ms. Sencer follows:] 

PREPARED STATEMENT OF CAREN P. SENCER

Chairman Alexander, Ranking Member Murray, and members of the Committee 

on Health, Education, Labor, and Pensions, thank you for this opportunity to testify 

about the National Labor Relations Board’s rule to streamline and modernize election procedures. 

I am a partner in the law firm of Weinberg, Roger and Rosenfeld based in Alameda, CA. Our firm, small by management standards, is one of the Nation’s largest 

representing unions, working people and their institutions, including trust funds 

and apprenticeship programs. Our client base includes unions representing public 

and private sector, construction, agriculture, service and white collar workers. We 

are proud to represent some of the largest and smallest unions in California, and 

our work extends through most of the western States. 

I have been with the Firm full-time since my 2004 graduation from the University 

of California, Berkeley School of Law. While at Berkeley, I served as the editor in 

chief of the Berkeley Journal of Employment and Labor Law. Prior to law school, 

I earned my Bachelors of Science at the New York School of Industrial and Labor 

Relations at Cornell University. 

In my current work, I have had broad exposure to the NLRB representation process and have assisted clients in over 200 representation petitions with direct involvement in 27 petitions in the past year alone. The petition and Board conducted 

election is the statutory method for recognizing, through a democratic process, the 

existence of a collective bargaining representative. 

The National Labor Relations Act is a recognition that business of our country 

flows more freely, and our economic system works better, when workers have the 

protection of the Act to join together to form unions for their collective good. The 

Act was and remains a response to strikes and other disruptions to commerce. Updating the election procedure rules to conform to modern technology and existing 

practice does not alter the purpose of the Act but rather streamlines procedure and 

furthers the purpose of the Act by providing more and clearer information to workers. 

22 

For the Act to be effective in its goal of protecting workers, the Board must do 

more than adjudicate or attempt to mediate disputes between employers and unions. 

The Board is charged with protecting the rights of employees to organize. Its first 

and utmost concern should always be the rights of workers seeking to use its process to establish, change or disestablish a collective voice in the workplace. That 

process should be easily understood and accessible. If something creates a barrier 

to free choice and self-organization, it should be rejected or modified. 

To put the Board’s new rules in context, let me first explain the basic election 

procedure under the current rules. 

The representation process formally starts by a union filing a request for representation. The request is made in writing, using a provided form, and must be 

accompanied by a showing of interest that the union is authorized by at least 30 

percent of the proposed unit to represent the employees for collective bargaining. 

This seems straightforward, but jockeying for tactical advantage quickly begins. 

The Board operates out of 26 regional offices. Each regional director has the authority and discretion to operate her region as she sees fit. This currently includes 

when the showing of interest must be submitted to process the petition, when to 

set petitions for hearings, when to grant continuances, when and how subpoenas are 

issued, and when to extend filing deadlines. Practitioners are not generally aware 

of these variances between regional practices. 

In most regions, a hearing will be initially scheduled between the 7th and 12th 

day after a petition is filed. Employers request and are routinely granted a continuance of up to a week. If the hearing is held, it may last several days, and the parties 

are given the opportunity to file a closing brief 1 week (or more) later. The record 

is thus closed, at the earliest, approximately 3 weeks after the petition is filed. The 

regional director then issues a Decision and Direction of Election or an order dismissing the petition. 

This generally takes at least 2 weeks but can take significantly longer. The election is directed no earlier than 25 days after the regional director’s decision, in order 

to allow either party an opportunity to seek pre-election review from the Board, 

even though the Board is not required to rule on the request for review prior to conducting the election and these requests are rarely granted. As a result, in cases 

where there is no stipulation and a hearing is held, the election is not held until 

a minimum of 65 days, and often longer, after the petition is filed. 

The current system provides many opportunities for employers to delay the process. This puts enormous pressure on the union to agree to unreasonable demands 

from the employer regarding the composition of the bargaining unit and other 

issues. Under the current system, the employer can force a hearing solely for delay 

purposes to resolve issues not relevant to whether there is a question concerning 

representation requiring an election. This delays an election weeks and sometimes 

months, because the regional director does not have the authority to refuse to take 

evidence in the absence of dispute requiring resolution. By threatening to delay the 

election, the employer will often force the union to accept concessions to remove or 

add workers to an already appropriate unit, to include supervisors in the unit, to 

agree to a disadvantageous election day or other procedures that the employer believes are advantageous. 

In many cases, the parties are able to stipulate to the scope of the bargaining unit 

and to the time and place for the election because of the efforts of the region to 

apply the Board’s goal of an election being held within 42 days of a petition being 

filed. Most employers insist upon the 39th, 40th, or 41st day for an election. The 

union has no choice but to agree to this delayed election because, if the matter goes 

to a hearing without a stipulated election, the hearing will inevitably result in delay 

of the election for at least several weeks beyond the 42nd day. This is true even 

when there is no actual dispute between the parties as to the scope of the appropriate unit. The threat of delay by litigation throughout the petition procedure 

skews the pre-election process. 

The NLRB’s new rules take important steps toward reducing the opportunity for 

unnecessary delay. The regions would be permitted to grant an extension from the 

hearing date, normally scheduled for the 8th day after the petition is filed, only 

under special or extraordinary circumstances. 

The hearing would be focused based on the petition and the responding party’s 

written statements (statement of position form), due the day before, which would 

require: all parties to take a position on the appropriate unit; if there is a dispute 

on the unit description, an explanation of why the alternatively proposed unit is appropriate and the originally proposed unit is not; the appropriate time, place, and 

date for an election; and, confirming basic jurisdictional issues. The only issues to 

be addressed at the hearing would be those that truly present a dispute between 

the parties. And, based on the discretion of the regional director, some issues that 

23 

1The Board has issued several manuals and guides to the representation process which are 

available on its website, to explain both the process as well as substantive approaches to representation issues. 2 Excelsior Underwear, Inc., 156 NLRB 1236 (1966). 

affect only a small percentage of potential voters could be postponed for resolution 

until after the election if the issue is still relevant. The hearing officer, at the direction of the regional director, would solicit offers of proof to determine whether the 

issues in dispute involve factual questions requiring introduction of evidence. 

Written briefs would not be a matter of course but rather would be allowed only 

by special permission, for example, in complex cases. Most cases involve only one 

or two issues, and they are typically the same issues regarding supervisory status 

and community of interest.1 As a result, oral closing arguments would become the 

norm, thus eliminating up to 2 weeks of delay caused by waiting for transcripts and 

subsequent briefs to be filed. Not only would this continue to create a complete 

record, but it would reduce the expense for all parties and allow regional directors 

to start their decisionmaking process sooner. 

The NLRB’s rule also eliminates the requirement of filing a pre-election request 

for review to the Board and instead allows for all appeals to be consolidated into 

a single post-election process. This would allow not only for prompt elections but 

would also allow both parties to retain the full right to request review. This creates 

efficiency by allowing parties to litigate, through the post-election review process, 

only those issues that remain relevant after the election. In contrast, under the current practice, elections are delayed for at least 25 days after a Decision and Direction of Election to allow the parties to seek pre-election review. This would bring 

the Board’s rules in line with most other administrative agencies and courts where 

interlocutory appeals are discouraged. 

Each of these changes to the pre-election procedure will likely reduce the number 

of hearings involving the presentation of evidence since there would need to be an 

actual dispute involving a question of fact for the regional director to receive evidence. The employer’s leverage to push the union into the 42d day for an election 

is restricted in the absence of a true representational dispute. If the only issue between the parties is the appropriate date for an election, the regional director could 

rely on the statement of position form of the employer and the direction in the new 

rules to schedule the election for as soon as practicable and could set the election 

date without taking evidence. This would, of course, take in to consideration the requirement of posting a notice at the job site explaining the election process, time 

for the employer to produce the Excelsior 2 list and time, if not waived, for the union 

to use the list to contact employees away from the work site. 

Eliminating delay serves the purposes of the National Labor Relations Act in promoting employee free choice. Employers will benefit because it will reduce the time 

period during which employees are distracted by the campaign and upcoming election. The new streamlined process will be less expensive for both the employer and 

the union and will be easier and more consistent for the Agency to administer. It 

is difficult to see how anyone is disadvantaged by eliminating unnecessary litigation 

and unnecessary delays before employees can exercise their free choice through the 

democratic election process. 

These new procedures will equally apply to petitions that management can file 

to resolve a dispute about whether the union either initially or continues to represent a group of workers. This is the RM procedure permitted by Board rules. And 

the new procedures will apply to petitions filed by workers who wish to decertify 

an incumbent union. This is the RD procedure. The management community has 

not pointed to any reason why those procedures should not be modernized and 

streamlined. 

The rules are not ground breaking, nor, to be perfectly frank, do they go far 

enough. The rules reflect practices that have been applied in some regions already 

and are not particularly controversial. Most of my practice is in the seven regions 

on the west coast. From my experience, representation hearings are regularly scheduled to be held 7 days after the petition is filed. Under the rules, this would be extended to the 8th day. Petitions are currently accepted by fax as long as the original 

signatures on the showing of interest are received by the regional office within 48 

hours of the submission. Under the new rules, petitions may be filed electronically 

and the original showing of interest would have to be filed simultaneously with the 

petition. 

When there is a dispute over scope of the bargaining unit, but the number of employees in the disputed classifications represents a small percentage of the unit, regional directors regularly approve stipulations for election allowing employees in the 

disputed classifications to vote subject to challenged ballots. The rule would leave 

24 

the discretion with the regional director to approve a stipulated election agreement 

with some disputed classifications or positions but would not set a strict threshold 

and would add the discretion to decline to take evidence pre-election if there is only 

a limited dispute that is not relevant to whether a question of representation exists 

requiring an election and is not likely to affect the outcome of the election. 

The above examples show how the rules simply codify existing best practices. By 

standardizing the regions’ best practices, the new rules promote predictability and 

efficiency and reduce the opportunity to manipulate the procedure. Many employers 

have accepted these practices although they use the threat of litigation to extract 

concessions on the composition of the unit and the date of the election because they 

know the union wants to avoid a lengthy hearing process. It is very likely that, 

under the new rules, unions and employers will continue to stipulate to elections, 

and very few cases will actually go to hearing. The difference is that the discussions 

about what to stipulate to will take place in a context where employers will not 

have multiple opportunities to force delay. This will help to level the playing field. 

I would like to give a few examples from my practice of how the new rules would 

have made a positive difference. 

In the first case, the union petitioned on January 31, 2014, for a small unit that 

included all employees within a distinct job classification. The employer, a subcontractor of the Federal Government, is experienced in labor-management relations 

and had, at the time, six collective bargaining agreements with the international 

union who filed the petition. The employer asked for an extension of time to hold 

the representation hearing—‘‘The parties are sure to stip,’’ said the representative. 

The day before the rescheduled hearing, it was clear that there would be no stipulation because the employer sought to add an additional job classification, doubling 

the size of the proposed bargaining unit. The employer also informed the region that 

it would not be appearing at the hearing scheduled for the following day. The union 

still had to appear and provide testimony about its labor organization status, the 

Board’s jurisdiction over the employer, and the propriety of the proposed unit which, 

under Board law, is a presumptively appropriate unit. That was February 12. The 

Decision and Direction of Election issued on March 11. It included the mandatory 

25 day waiting period to allow the parties to seek review notwithstanding the employer’s refusal to participate in the process. The employer then delayed in agreeing 

to a date for the election. The employees filed their petition on January 31. They 

finally had an opportunity to vote for union representation on April 7. Sixty-seven 

days passed between the filing of the petition and the election even though the employer did not raise any issue in the pre-election hearing. 

If the rules were in place, it is questionable whether the continuance of the hearing would have been granted. If the employer had failed to submit the statement 

of position and failed to appear on the day of the noticed hearing, the regional director could have issued a Decision and Direction of Election without taking evidence. 

The employer would have had 2 days to produce the Excelsior List. Given the size 

of the unit, the union would likely have waived the right to a full 10 days with the 

Excelsior List. If the rules were in place, the election would have been held around 

March 10. Only 46 days would have passed between the filing of the petition and 

the election. The employees would have been able to exercise their right to vote 21 

days earlier. 

As another example, in 2010 a client filed a petition for a unit of approximately 

45 automobile mechanics. Despite well-established Board law that automobile mechanics constitute a traditional craft unit that is presumptively appropriate, the employer insisted on a hearing where it took the position that service writers must also 

be included. The service writers would have constituted more than 20 percent of the 

unit. A hearing was held 2 weeks after the petition was filed. I did an oral closing. 

The employer requested and was provided with an extension to file a post-hearing 

brief. In its brief, the employer abandoned its position that the only appropriate unit 

needed to include the service writers. As a result, there were only 6 positions (representing less than 15 percent of the unit) in dispute. The regional director issued 

a Decision and Direction of Election 2 weeks later. The election was directed in the 

unit for which the union had originally petitioned. The election was set for 26 days 

later. On the 14th day after the Decision and Direction of Election issued, the Employer filed a Request for Review of the Decision of the regional director. 

The election was held 78 days after the petition was filed. The employer filed objections to the election. The hearing on the objections was set for a month later and 

was held over 2 non-consecutive days. The second day was set for the employer to 

produce witnesses who had not been available the first day of the hearing. Those 

witnesses were not produced on the second day and the employer disingenuously 

bought additional delay. The Employer filed a closing brief a week later. One-hundred and sixty-two days after the petition was filed, the Administrative Law Judge 

25 

3 California Labor Code 1140 et seq. 

issued his recommended decision overruling each of the employer’s objections and 

directing the challenged ballots to be counted. The number of ballots to be opened 

and counted was insufficient to affect the outcome of the election. The employer took 

exception to the report of the Administrative Law Judge. The Decision from the 

NLRB was issued 9 months later. Four-hundred and twenty-seven days after the 

petition was filed, the union was certified . 

The rules, in addition to requiring the employer to commit to a position in writing 

regarding the service writers, would have reduced the time it took from the filing 

of the petition until the election. If the employer had retreated from its position regarding the service writers prior to the opening of the hearing, the remaining disputed positions would have likely voted subject to challenge, and the challenges 

would have been resolved through a post-election hearing scheduled for 21 days 

after the tally of ballots. The hearing would have been held on consecutive days— 

not 34 and 44 days later. The Board would have had the discretion to deny review 

of the decision regarding the challenged ballots as it was insubstantial and did not 

raise any issue or general importance. Such discretion would likely have substantially reduced the 9-month delay at the Board. Applying the rules, the time between 

petition and certification would have been reduced to around 141 days. 

As is clear from these examples, the rules will unquestionably reduce the time between the filing of a petition and an election while providing more fairness and certainty to the process. 

Employers complain that the new rules will rush elections and deprive them of 

a full opportunity to give their views on unionization to employees. The timing issue 

is a red herring. I have been involved in elections under the California Agricultural 

Labor Relations Act where, by statute, elections are conducted within 7 days of the 

filing of the election petition.3 That process seems to run smoothly. The employers, 

their representatives and the Agricultural Labor Relation Board have adapted to 

the statutory mandate of elections within 7 days, a provision which has been in 

place since the statute was enacted in 1975. Employers mount full anti-union campaigns, and the persuaders who work in this field have tailored their message to 

the amount of time provided. So too will employers adapt here—although to be 

clear, nothing in the rules suggests that elections will take place anywhere near as 

quickly as under California’s Ag Act. 

Additionally, employers who want to mount an anti-union campaign have plenty 

of opportunity to do so—their opportunity is not limited to the period after the 

union’s petition is filed. In virtually all the cases where clients have filed election 

petitions, the employers have been well aware of the organizing efforts prior to the 

filing. In many cases, employers have already started their overt anti-union campaign. In some cases, they have made a tactical decision, notwithstanding the organizing campaign, to wait to see if a petition is filed. They often wait until the last 

weeks before the election to mount their campaign. 

Many employers have anti-union inoculation programs in place which seek to influence employees from the date of hire and throughout employment on a regular 

basis regardless of whether or not the employer has ever been a target of union organizing. In my experience, virtually every employer is aware of any union organizing effort and can begin its campaign, if it chooses to engage in one, long before 

any petition is ever filed or an election is set. 

Finally, on the timing issue, the employer community generally asserts that its 

First Amendment right would be impeded by a shorter period between the filing of 

petitions and holding elections. There is no First Amendment law that supports the 

idea that employers are allowed, as a constitutional matter, the right to more extensive campaigning. They have had the right to campaign for a union-free workplace 

from the day each worker is hired and the processing of a petition for an election 

doesn’t change that. 

Finally, for the Board’s election procedures to be effective, they must keep pace 

with technology and development. Several of the new changes simply adapt the 

Board’s rules to reflect new technology and forms of communication. Very few businesses operate without computer systems and email. Electronic communication has 

become the norm. While the Federal courts have moved exclusively to electronic filing with electronic signatures, the Board allows electronic filing of only certain documents and, prior to the new rule, had not allowed for electronic filing of petitions 

or showings of interest. Now that can be done electronically. This is hardly radical. 

Since the 1960s, employers have been required to provide the names and home 

addresses of employees in proposed bargaining units to the region under the Excelsior List rule. In the last decade, the list is always typewritten and appears to have 

come from an electronic recordkeeping system. 

26 

4 Recent Board decisions recognize the growing importance of electronic communications. In 

J. Picini Flooring, 356 NLRB No. 9 (2010), the Board required intranet posting of its Order in 

addition to traditional bulletin board posting. In Purple Communications, 361 NLRB No. 126 

(2014), the Board weighed the property right of the employer against the section 7 rights of the 

employees and found employees could use the employer’s email system for mutual aid and protection. 

Since the 1960s, communication and technology has changed. Almost all employers maintain computer systems for processing payroll. Under the Fair Labor Standards Act, the pay stubs provided to employees are required to include the employee’s 

home address. Almost all employees have a cell phone, email address or both. Employers keep this information in electronic files along with home addresses. There 

is no practical reason why the employer should not produce the eligibility list in an 

electronic document and do so directly to the region and the union. In the past year 

alone, I have seen an increasing number of employers have provided eligibility lists 

by email. Modern business and government depends on electronic delivery of information, and this should apply to the voter eligibility list as well.4

Some opponents of the Board’s rules have expressed concern that providing email 

addresses and phone numbers is more intrusive on employee privacy than the current standard of producing home addresses. 

This does not make sense. We choose when to read our emails, when to respond, 

and, most importantly, when to delete. The same is true of phone calls and 

voicemail. I would anticipate that in many cases, the union will use less intrusive 

means to communicate with employees in the bargaining unit once the Excelsior 

List requirement is expanded to require employers to provide available email addresses and phone numbers. Management has pointed to no record of abuse by 

unions of voter eligibility lists. 

In my experience, incomplete addresses or PO Boxes are routinely provided, 

thwarting the purpose of the Excelsior list requirement. With the fissured work 

place and the dispersion of workers, communication at a single work site is less effective. For some groups of employees, including employees who work in multiple 

locations throughout the year, they use only a P.O. Box for mail. However, even if 

seasonal, their employer contacts them to recall them to work using the cell phone 

numbers that are already in the employer’s electronic database. Providing this information is no more intrusive than providing a home address and works in favor of 

employee free choice as it provides meaningful ways to contact employees and provide information. 

In conclusion, these rules are not radically different than the status quo. They reflect an attempt to standardize some of the best practices and create consistency 

across regions. Many of the changes attempt to align the Board procedures to procedures used by other agencies, bring the process into the 21st century and provide 

clear notice. The rules reduce unnecessary delay, simplify the procedure, provide 

more notice to all parties of the process, and permit the parties to seek Board review 

after the election at which time the parties know which, if any, differences over representational issues that may have existed prior to the election remain relevant or 

determinative. This saves time and money for employers, unions and the government, and promotes the ability of employees to exercise their right to vote. 

I would be happy to answer questions, and I hope that my experience with the 

Board’s procedures is helpful to this committee. 

The CHAIRMAN. Thank you very much, Ms. Sencer, and thank 

you for being here. 

Thanks to all the witnesses. 

Now we will have a round of 5-minute questions. 

Ms. Milito, how many businesses does your organization represent? 

Ms. MILITO. We represent 350,000. 

The CHAIRMAN. Is there an average size of those businesses? 

Ms. MILITO. We say our average size of member business is 

around 10 employees or less. 

The CHAIRMAN. Around 10? There’s no small business exemption 

under the National Labor Relations Act, so a 10-employee business 

can be organized by a union, right? 

Ms. MILITO. Yes, absolutely. I would point to the Board’s own 

statistics, too, that show the average bargaining unit size as of 

27 

2013 was about 24 employees. I think units have gotten smaller 

over the last—— 

The CHAIRMAN. You said you represent 350,000 small businesses? 

Ms. MILITO. Three-hundred and fifty-thousand. 

The CHAIRMAN. I’m just trying to imagine 350,000 small businesses around the country, with an average size of 10 employees. 

The picture I get is that they’re all sitting around every day at 

breakfast with their labor lawyer just poised, waiting to be able to 

respond to an election, when the truth is that’s probably the furthest thing from their mind, right? 

Ms. MILITO. They don’t have an attorney. Most of the members 

with whom I speak do not have an attorney. They may have consulted somebody to draw up their articles of incorporation, but they 

don’t have an attorney. 

The CHAIRMAN. How many small businesses of 4, 5, 6, 10, or 12 

employees regularly consult their fax machine? 

Ms. MILITO. Very rarely, unless they’re looking for a timeshare 

or a business—— 

The CHAIRMAN. The notice of an election arrives on day 1, and 

then a whole series of things begin to happen. I mean, first you 

have to go find Mr. Carter, or some lawyer to advise you. If you 

make a mistake—perhaps a statement to an employee that is not 

strictly according to the National Labor Relations Act rules—what 

happens? What’s the penalty for that? 

Ms. MILITO. The consequences are very severe, as we’ve heard 

from the experienced labor practitioners here. I mean, they have to 

get it right. This hearing notice comes out, it’s faxed on a Friday. 

They don’t check their fax machine until maybe Monday. 

I just want to back up there, too, and go back to the fax machine. 

This is legal ramifications, to your point about the seriousness of 

it. For business owners I talk with, too, anything legal related like 

a complaint or a civil procedure, they expect it to come in the mail, 

not through the fax. They’re just not going to be checking the fax, 

and then not knowing what to do with this. 

The CHAIRMAN. Mr. Carter, an employer who is about to be organized needs counsel, right? 

Mr. CARTER. An employer who doesn’t have counsel is in severe 

jeopardy. 

The CHAIRMAN. What could that cost? 

Mr. CARTER. Well, the cost of all that can be tens of thousands 

of dollars. 

The CHAIRMAN. Even for an 8-, 10-, 12-, or 14-person unit? 

Mr. CARTER. Absolutely. It’s a matter of the hours spent by the 

attorney in preparing the materials. The cost will go up, Senator, 

because the amount of work that needs to be done under these regulations, under the new regulation, exceeds the amount of preparation that is currently anticipated. 

The CHAIRMAN. Under the rule, from day one, you get a fax copy 

saying you’ve got an election petition filed, on day 2 or 3 you’ve got 

to publicly post an election notice, and you’ve got to do that correctly, right? 

Mr. CARTER. If you don’t do it correctly and the employees themselves decide not to vote the union in, the union can petition for 

28 

another election and put the employer through that same expense 

again. 

The CHAIRMAN. You’ve got only 1 day to get legal advice before 

you post that notice or you might do it wrong. Is that right? 

Mr. CARTER. Absolutely correct. 

The CHAIRMAN. What’s the reason for this? The median timeframe for an election is 38 days. This reminds me of Western movies about frontier justice and hanging judges. If you could do it in 

8 days, why not do it in 2 days, 12 hours, or 6 hours? If the median 

is 38 days, and more than 95 percent of elections occur within 56 

days, then a little over a month would seem to me to be a fair 

amount of time for both sides to make their point. Under the rule, 

if you get to the 11th day, the union has a right to postpone the 

election but the employer doesn’t. Is that correct? 

Mr. CARTER. It’s even before that. The union can waive the time 

necessary after getting the Excelsior list—the list of employees— 

and that way they can make the election happen more rapidly. 

What is the reason for this? The NLRB had stated that it’s because 

we want to cut out unnecessary delay. The U.S. Chamber of Commerce doesn’t believe that due process is unnecessary. The Senate 

has confronted this issue in the past and has concluded, as Senator 

Kennedy stated in 1959, 30 days is necessary to ensure that we 

don’t rush these people into making this decision. It’s an employee 

right that’s at stake, Senator. 

The CHAIRMAN. Thank you. 

Senator Murray. 

Senator MURRAY. Ms. Sencer, can you respond? I’m confused by 

the fax machine on Friday discussion. Can you clarify that? 

Ms. SENCER. Sure. First of all, if a petition is filed on a Friday 

and the union gives notice to the employer on a Friday, as would 

be required under the rules now where only the region gives notice 

currently, the hearing isn’t scheduled for 8 days because you wind 

up—it’s 8 days from the time the notice is effectively given and you 

don’t count that day. You move over on the weekend. 

You also aren’t doing it necessarily by fax anymore. Prior to filing the petition, there’s a box that the union has to refer to, has 

to answer, which says whether or not notice has been given to the 

employer. In almost virtually every case, notice is given to the employer before the petition is filed with the Board because the employees, as an act of solidarity together, give their request for organization to the employer, who then ignores it. 

Under the new rules, in addition to fax service, email becomes 

an acceptable way to serve, which is something that employees use 

and employers use on a regular basis. It is served with a Notice 

of Procedure which explains how to post the notice that the Federal 

Government is going to require posting with it so that you’re not 

walking into a trap of posting it incorrectly. Those things are taken 

care of by the new documents that will explain the process to the 

employer, a benefit that they do not currently have, and it makes 

it easier for an employer who does not have counsel right away to 

be able to respond in an appropriate manner. 

Senator MURRAY. We’ve heard a lot about this rule permitting a 

quicker process for elections. In fact, that’s what the title of the 

29 

hearing sort of implies. Can you tell me, in your view, is the point 

of this rule speed? 

Ms. SENCER. No. It’s to take out the parts that aren’t necessary. 

Right now there’s a lot of gamesmanship in how this process works. 

There’s a lot of wrangling for position. The employers ask for an 

extension for a hearing date even in a unit of 10 people. In a unit 

of 10 people, the employer pretty much knows who their supervisor 

is. If the unit is requesting all 10 people in a unit of 10 people, 

there are not many legal issues or any legal issues that should 

have to be worked out such that it takes over a week to prepare 

for a hearing, or in fact that it necessarily even requires an attorney. There are many corporations that do these hearings without 

attorneys on a regular basis. 

A week delay before the hearing is set, or even having consistency in when the hearing is set, would reduce unnecessary delay 

that is currently built into the system. A closing brief that has to 

be filed a week after the hearing is held is not necessary in a unit 

of 10 people. The only issue that’s going to come up there, if all of 

your employees are part of it, is one of them is supervisor. There 

are longstanding Board rules and Board regulation as to what defines a supervisor. A closing brief is not necessary. We get rid of 

that week. 

It also gets rid of the 25 days of review in-between the time a 

decision of direction of election issues and the time that the election can be held, but allows the employer, if there is a problem or 

a concern about the decision of direction of election, to seek review 

of that if it’s still necessary after the election is held. 

Senator MURRAY. Well, I heard Mr. Carter say that elections 

could take place in as little as 10 days, and Ms. Milito said in as 

little as 14. Does the rule set a specific timeframe for when that 

election should occur? 

Ms. SENCER. No. There are only a couple of points that actually 

have timeframes. The first is the setting of the hearing, which is 

for the eighth day, unless there are extraordinary circumstances, 

and then there are extensions and discretion for those extensions. 

The other portion that has a definite time period is if there are objections to an election, they will be heard 21 days after the election 

is held. Other than that, time periods are all flexible under this 

rule. 

Senator MURRAY. OK. It’s my understanding that the final rule 

set an election hearing to begin 8 days after the hearing notice is 

served. Isn’t it true that a number of the Board’s regions, maybe 

even a majority of them, regularly schedule hearings 7 days after 

the election petition is filed, and therefore the rule just actually 

standardizes that existing practice? 

Ms. SENCER. I deal mainly in four regions in California. California has four regions that cover it. In three of them, the standard 

is already 7 days. In the other one, it is 10 days. This really is just 

conforming to the best practice that’s already out there. 

Senator MURRAY. OK. I want to ask you one more question. 

We’ve heard claims that providing employees’ email and phone 

numbers will intrude on workers’ privacy. The Board accepted tens 

of thousands of written comments over the course of 141 days and 

heard over 1,000 transcript pages of oral commentary over 4 days 

30 

of hearing. As far as you know, did any of that voluminous commentary reveal even a single instance of misuse of contact information contained in voter lists in the past 50 years the Board has required that such lists be provided to unions? 

Ms. SENCER. I haven’t seen any commentary to show it, and at 

the public hearings where I was on the panel about the new information, there was not a single concrete example provided of that. 

Currently, home addresses are provided, and unions have every 

reason to keep that information confidential to protect the workers 

that they’re seeking to organize. 

Senator MURRAY. Does the rule contain protections for workers’ 

privacy? 

Ms. SENCER. Yes, because the list is limited in what it can be 

used for, which it currently is not under the Excelsior Underwear 

rule. 

Senator MURRAY. Thank you very much. 

The CHAIRMAN. Thank you, Senator Murray. 

We’ll go to Senator Isakson; after him, Senator Franken. 

STATEMENT OF SENATOR ISAKSON

Senator ISAKSON. Thank you, Mr. Chairman. 

Ms. Sencer, reading from your prepared testimony, it says, 

‘‘The request for representation is made in writing using a 

provided form and must be accompanied by the showing of interest in which the union is authorized by at least 30 percent 

of the proposed unit represented by the employees for collective 

bargaining.’’ 

Is that correct? 

Ms. SENCER. Yes. 

Senator ISAKSON. To file the notice, to file the request, the union 

has to have 30 percent of the number of employees affirmatively 

signing a petition that they want to have this organization take 

place. Is that right? 

Ms. SENCER. Yes, at least, although most unions have an internal guideline that requires them to have 65 percent before they 

even file a petition. But the regulation states 30 percent. 

Senator ISAKSON. My point on this is that’s day 1 when that filing takes place, and the hearing in 8 days is automatic? 

Ms. SENCER. Yes. 

Senator ISAKSON. Is that correct? 

Ms. SENCER. Yes. 

Senator ISAKSON. Is there any requirement of a union to notify 

an employer of an intent to seek 30 percent of the employees to get 

a petition to file for unionization? 

Ms. SENCER. No, there isn’t. 

Senator ISAKSON. In other words, a union wanting to organize a 

business can start in June 1 of a year trying to contact employees 

for the purpose of getting their signatures to go to a filing of a request. They then have 8 days before a hearing. Is that correct? 

Ms. SENCER. That is true, although if we have an average unit 

of 23, we would assume that a supervisor or manager or the owner 

is closely enough involved with their employees that they are going 

to know. In most cases, the employees are making public stateVerDate Nov 24 2008 16:24 Feb 28, 2017 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6601 S:\DOCS\93356.TXT DENISE
31 

ments to their employer prior to the petition being filed and, in 

fact, are making a request for voluntary recognition, which goes 

unheeded, resulting in the use of the NLRB process. 

Senator ISAKSON. Your following sentence after the one I just 

read says the following: ‘‘This seems straightforward, but jockeying 

for tactical advantage quickly begins.’’ 

Ms. SENCER. Yes. 

Senator ISAKSON. I take the inference there that immediately 

upon the company receiving the filing and all of a sudden they realize there’s a movement afoot to organize the company, they immediately use every tactic they can to protract the period of time 

for the vote. Is that right? 

Ms. SENCER. Yes. 

Senator ISAKSON. Well, that average time is now 38 days. Is that 

correct? 

Ms. SENCER. Thirty-eight days for everything to go to an election. 

This rule is really specifically geared to those cases that go to hearing before they go to election. Those cases have a much longer period of time for resolution. 

Senator ISAKSON. OK. Ms. Milito, I should know this, and I 

apologize for not knowing in advance. Is there any small business 

exemption in the proposed rule? 

Ms. MILITO. There is not. 

Senator ISAKSON. So somebody with 10 employees could be affected by the rule? 

Ms. MILITO. Exactly, exactly. 

Senator ISAKSON. An intent to organize a 10-employee company 

could take 2 years to try and find three employees to reach the 30 

percent threshold and then have a 38-day vote in the company once 

the notice is filed. Is that correct? 

Ms. MILITO. That’s correct, yes. 

Senator ISAKSON. The point I would make is, we established a 

long time ago as a country that business needs to treat labor right. 

The labor laws exist today because American business didn’t do a 

very good job during the Industrial Revolution of protecting workers based on their age, their health, or the time they worked, or 

anything else. During the last 100 years, labor law has evolved to 

a pretty fair playing field between labor and management to compete. 

This appears to me to be analogous to the U.S. Senate passing 

a resolution that says any incumbent seeking reelection can only 

file 10 days before the vote. In other words, we shorten the period 

of time that we have to run, we increase the odds of us getting reelected because it takes a lot of time and effort to get up the momentum and the money and the issues necessary to elect a U.S. 

Senator. The American public would be outraged if we tried to manipulate the rules to tilt everything in our favor. 

I would just suggest that it appears to me that this is not a middle-down versus top-down versus middle-up proposal. This is not 

trying to play favorites. This is trying to keep from playing favorites, and 38 days is not an inordinate amount of time for a company to have to make its case if the opposition to the company’s 

case is going to have an unlimited period of time to try to reach 

32 

into those employees to induce 30 percent of them to file for the 

hearing. 

I would just say it is tilting the playing field, and that’s the 

whole issue I see and the reason I appreciate your testimony and 

all of you testifying today. 

The CHAIRMAN. Thank you, Senator Isakson. 

Senator Franken. 

STATEMENT OF SENATOR FRANKEN

Senator FRANKEN. Thank you, Mr. Chairman. 

There’s a lot of talk about 38 days, and I think the Chairman 

said that 56 days is the most for elections. Is that what you said, 

Ms. Milito? You’re nodding. 

Ms. MILITO. Yes, 95 percent of elections occur within 56 days. 

Senator FRANKEN. It’s 95, so it isn’t the most. 

Ms. MILITO. Ninety-five percent of elections occur within 56 days. 

Senator FRANKEN. OK. That’s different, though. Can you give us 

examples of when companies really dragged this stuff out? 

Ms. SENCER. In situations where it really gets dragged out, 

you’re talking about an election being held about 100 days after, 

and that can happen by a postponement of the hearing, followed 

by a request for an extension that’s granted regarding the closing 

brief. We don’t have any control, and nothing in the rule designates 

how long a regional director will take to issue the direction and decision of election, which is something that is uncontrollable by either party. Then we have 25 days for review after. 

In the case that an employer raises a question of review, which 

is a discretionary review for the Board to take at this point, if the 

Board takes that review it can either impound the ballots or postpone the election under the current rules, and in those situations 

you wind up looking at well outside of 56 days. 

Even in the example that I just provided earlier, in a situation 

where the employer did not show up and participate in the process, 

based on how long it took for the regional director to issue the decision, amongst other factors, including the extension and the 25-day 

review period, we’re outside of that 56 days. We’re at 67 days without the employer even participating in the process. 

Senator FRANKEN. It’s your feeling that these rules—when I hear 

the other witnesses talk, it’s like this is a radical departure from 

the way the rules are now, and you seem to have a different view. 

Ms. SENCER. I do. Most cases don’t go to hearing, and these rules 

really affect what happens when you go to hearing. Most cases— 

and by most cases, something like 91 percent have a stipulated 

election agreement. When you have a stipulated election agreement, the internal target is 42 days or less currently. And because 

of that, employers work that toward the outer edge because the 

cost of going to hearing is that you’re outside of 56 days. Most 

unions will agree to something that results in somewhere in that 

38 to 41 days because the stipulated election agreement will be accepted by the region. 

That leaves only about 9 percent of cases that are on the outside 

that actually have a hearing. The ones that go to hearing, it does 

extend the process by a lot of time, and this would cut down the 

number of days for those cases. 

33 

Most significantly for them, it’s not really the hearing that becomes most significant. Most significant is that week for the posthearing brief and the 25-day review period after the decision and 

direction of election issues. 

Senator FRANKEN. Thank you. 

You know, I’m a member of—I’ve been a member of four unions, 

but one of them combined after, SAG. Very helpful to me and to 

the members of those unions. People who are organized who are in 

unions, on average, do a lot better. They tend to get paid more, 

they tend to have better benefits, health care, those kinds of 

things. As we’ve seen, the lower and lower percentage of people 

covered by unions, we’ve also seen—it has coincided with this incredible inequality in income in this country. 

I think there’s a correlation. What the causation is exactly is 

hard to say, but I think there is some causation. 

Mr. Carter, listening to the testimony today, it seems like we’re 

not talking about the same rules because this is so apocalyptic 

coming from you guys. To me, these seem pretty modest, especially 

compared to the way you describe them in your testimony. 

In your testimony you argue that the rule infringes upon employers’ free speech rights by ‘‘virtually eliminating’’ employer opportunities to communicate views against employees forming a union. 

However, you also note that under the NLRA, employers have the 

right to communicate with employees about how they feel about a 

union and collective bargaining, which I think is a good thing because everyone should have a right to express their views about 

what collective bargaining means for workers. In fact, employers 

can and many employers do communicate with employees about 

their concerns about collective bargaining even before they think 

the workers may want to join a union. 

I’m sorry to go over a little, but let me ask this question. Does 

anything in this rule prevent employers from communicating with 

employees from their first day on the job that they, the employers, 

oppose efforts to form a union that would allow workers to collectively bargain for better wages or working conditions? Does anything in this rule prevent employers from requiring that their 

workers attend one-on-one meetings during working hours in order 

to persuade them to vote against joining a union? 

Mr. CARTER. The candid answer, Senator, is there is no prohibition of communicating your feelings regarding the unions. The importance here is the context of the conversation. Most employers in 

my experience, Senator, don’t make a habit of talking about unionization. They don’t go to their employees and say, ‘‘hey, this is how 

I feel about unions.’’ It’s not a common topic in the workplace between a supervisor and an employee. They talk about their business. They talk about their livelihoods and improving them. 

What this regulation does—and it is radical, in my judgment— 

is that in the critical period—and that’s a legal term under the National Labor Relations Board precedent—of an organizing campaign when this is the most pressing issue on an employee’s mind, 

as well as an employer’s, the employer has virtually no effective opportunity to communicate its feelings because it is consumed with 

its bureaucratic obligations to prepare the form and get it ready. 

34 

In terms of gamesmanship, if you file on a Friday before a holiday weekend a petition and it takes you 3 days to find a lawyer, 

that employer is only going to have 2 days to prepare their form. 

The CHAIRMAN. We need to move on to the next Senator. 

Mr. CARTER. OK. 

The CHAIRMAN. Thank you, Senator Franken. 

Senator FRANKEN. Thank you. 

The CHAIRMAN. Senator Scott. 

STATEMENT OF SENATOR SCOTT

Senator SCOTT. Thank you, Mr. Chairman. 

I would tell you that this rule is radical, it is ridiculous, and it 

is oppressive, and it applies to all employers no matter how many 

employees you have. That’s what I meant. No matter how many 

employees you have, this rule applies. If 95 percent of the time 

within 56 days we are able to have an election or not, we’re not 

talking about moving this from an average of 56 days to 50. We’re 

not talking about moving it to 40 or 30 or 20, but to 10. If there’s 

any sense of an ambush as an employer trying to create jobs, help 

families, this rule stands front and center to that point. 

I have a short question but a long narrative, so please bear with 

me, Ms. Milito, as I ask you this question. You’ve highlighted it, 

and Mr. Carter did a pretty good job of articulating the position at 

the beginning as you were going through your opening remarks. 

You were talking about the actual process that an employer goes 

through to try to comply with something that he’s completely unaware of, that she has no clue of the actual process until it is hitting her in the face. 

You highlighted, Ms. Milito, the profound impact that small businesses have on our economy. There’s no question the backbone of 

our economy are small businesses. I am fortunate enough to have 

been one of those small business owners for about 15 years, the 

last 15 years before I was given this wonderful opportunity and 

privilege to serve all Americans in the U.S. Senate. 

When I look at this rule and the testimony offered by many of 

you here today, I am struck with a simple conclusion: The rule 

drastically tilts the playing field in favor of unions and chills both 

the rights of employers and employees. As a small business owner, 

I never faced an attempt to unionize my workplace. It is telling for 

me to imagine what this scenario would have done had I still been 

in business with one of the couple of businesses I was involved 

with. 

I want to make sure that as I walk through the timeframe, that 

this is exactly what you all are talking about. ‘‘You all’’ means ‘‘all 

y’all,’’ which is plural and singular in South Carolina. 

[Laughter.] 

Make sure we understand that. 

The condensed timeframe between the filing of a petition and an 

election to as few as 10 days, with a hearing occurring within 8 

days of the petition, would absolutely feel like an ambush. In other 

words, while I’m out there trying to secure business—I had an insurance business, a real estate business. I flirted with a janitorial 

business but got out of that right before I got started. I’m out there 

looking for business opportunities, trying to hire more employees, 

35 

and at the same time I’m ambushed with this prospect of getting 

something together that I’m completely unfamiliar with in 10 days. 

Is that so far so good? 

Ms. MILITO. Very accurate. 

Senator SCOTT. A small business owner with just a couple of 

dozen employees, 24 employees, and no in-house legal counsel, 

which I would imagine is completely consistent with the folks who 

are members of the NFIB, I would be expected all within a 10-day 

window to do a couple of things. 

No. 1, understand what an election petition is. 

No. 2, find a labor attorney with NLRB expertise and, by the 

way, one that I actually want to work with, which is—no offense, 

by the way—could take a little longer than 3 to 5 days, as you 

talked about in the beginning. Finding one is one thing; having one 

that you can actually work with and gel with, with the most important asset you will ever have as a small business owner, it’s your 

business. 

Most business owners go into business not to figure out tax loopholes or how to discriminate against people. You go into business 

because you have this vision of making a difference, growing a 

business, being a part of the American tapestry, talking about the 

American Dream. Yet you’re going to do these two things and learn 

what can and cannot be communicated to your employees and figure out which employees are actually eligible to vote. 

Then you’re going to submit to unions the names of eligible employees, their addresses, email, cell numbers, work locations, their 

shifts, employee classifications, and ensure all legal arguments are 

raised at this point in time because if you don’t raise them now, 

you can’t raise them later, and any mistakes that you make, any 

single mistakes you make you’re going to be liable for, all in 10 

days. 

Am I wrong at all? 

How does this lead to a fair election for the employees or the employers when it comes to making this large of a decision in such 

a small window? 

Ms. MILITO. It’s not fair. It’s not fair for either side. It’s not the 

way it should be or the way it was intended. 

Senator SCOTT. Mr. Carter, any comments after that? 

The CHAIRMAN. Please go ahead and answer the question. Then 

we’ll go on to the next Senator. 

Mr. CARTER. Senator, you did a wonderful job describing the scenario, and the impact of the ambush election regulation not only 

doesn’t help the situation but it injures employees whom we presume, Congress presumes benefit from hearing all sides of the 

story so they can decide who is telling them the truth and who 

isn’t, and then they can cast their fate and exercise their right. 

Senator SCOTT. Thank you, sir. 

Thank you all. 

The CHAIRMAN. Thank you, Senator Scott. 

Senator Warren. 

Senator WARREN. Thank you, Mr. Chairman. 

36 

STATEMENT OF SENATOR WARREN

Congress requires the NLRB to oversee workplace elections so 

that workers can vote on whether they want to be represented by 

a union. According to NLRB data, more than 90 percent of the time 

this works just fine. Employees and employers agree about the 

process, and an election is held. 

In the roughly 10 percent of the cases, I think it’s actually 9 percent of the cases where the employer has some issue with the details of the vote, the rules on how to resolve these concerns have 

turned into a mess. Over time, a hodge-podge of different rules for 

resolving these disputes emerged in each of the country’s 26 NLRB 

regions. 

Now, to fix this, the NLRB has finalized one national regulation 

that draws on historic best practices and sets out clear procedures 

for pre-election issues and for conducting these elections. In other 

words, the NLRB is trying to make dispute resolution more efficient and more consistent throughout the country. 

Some employers who simply oppose union votes altogether are 

lobbying against the new rules. 

I just want to ask, Ms. Sencer, in the roughly 10 percent of cases 

where employers contest union elections, is there anything in the 

new rule that would stop an employer from having its concerns 

heard? 

Ms. SENCER. No. The Statement of Position form allows for each 

issue to be put out there. There is still a hearing process. There 

is still a right to review. So everything that needs to be resolved 

will still be resolved. 

Senator WARREN. OK. It seems like most employers, 90 percent 

or 91 percent, who don’t contest elections, in those cases the employers who simply want their legitimate concerns heard if there’s 

a dispute, they’re not going to be affected in any way by this. The 

90 percent that never contest and those who just want to make 

sure their concerns get heard, they’re not going to be affected by 

this. 

For the others who are complaining so loudly, this doesn’t seem 

to be about fairness. It seems to be about taking advantage of inefficiency and delay. According to a 2001 study from the Berkeley 

Center for Labor Research and Education, long delays correspond 

with higher rates of labor law violations. The study points out that 

delay gives anti-union employers more time to break the law by retaliating against union organizers and intimidating workers into 

giving up, and evidently delay works. Nearly a third of the time, 

employees who file petitions and request an election never actually 

get it. 

Ms. Sencer, is this finding consistent with your experience as a 

lawyer who works in election cases? Have you seen a correlation 

between delaying tactics and worker intimidation? 

Ms. SENCER. Yes, and it’s not necessarily even intentional. This 

rule doesn’t change anything about what people can say to each 

other. Those rules are dealt with separately and go through the 

case law. The longer that your line supervisors or your lower level 

supervisors, who are not engaged in the discussions with labor 

counsel, are going to be interacting with employees prior to the 

37 

election, the more likely they are going to say something that runs 

afoul of the rules, and that’s just based on the nature of the conversations that happen on an everyday basis. 

Senator WARREN. Well, thank you. You know, I’m sure that employers who want to fight to keep their workers out of a union prefer a broken, inefficient system that they can manipulate to try to 

block workers from organizing. The NLRB does not answer to 

them. Congress has directed the NLRB to make sure that election 

disputes can be solved fairly between employers and employees, 

and I think that’s exactly what the NLRB is doing with this rule. 

Thank you. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Warren. 

Senator Cassidy. 

STATEMENT OF SENATOR CASSIDY

Senator CASSIDY. Mr. Cohen, Senator Warren just characterized 

this as a broken system, and yet you point out that unions are winning an increasing percentage of the elections. That seems incompatible with a broken, fixed, unfair system. What are your 

thoughts? 

Mr. COHEN. I think you are exactly right, Senator. The system 

is not a broken system. The unions have been prevailing. If I might 

add, these proposed rules will change all elections. They are not 

geared to the 5 to 10 percent of the cases that go to hearing. 

Senator CASSIDY. Now, can I pause you there for a second? 

Mr. COHEN. Sure. 

Senator CASSIDY. Ms. Sencer suggests this is best practices. She’s 

out in California, which I will note is one of the most anti-business 

States there is, with a hollowing-out middle class. If it’s best practices in California, would you, No. 1, agree with that? Or, No. 2, 

if you do, then why don’t we? And if not, why not? 

Mr. COHEN. I would not agree with the assertion. The General 

Counsel of the NLRB runs the regional offices. There are standards 

which are largely uniform. Are there individual variations in particular cases or if somebody comes up with a reason why they need 

a 3-day extension of time? But the standards are the same. The regional directors are evaluated based on their compliance with nationwide standards. I think that is not the case. 

If I might, two of the points that have been made in terms of the 

need to help the middle class and the need to stop abuse of employers by giving them a campaign period of time because they will 

commit violations, the NLRB has specifically said that neither of 

those issues have anything to do with the 733 pages of new regulations. The NLRB states that it is all about economy and efficiency, 

none of the goals that have been alluded to by numerous Senators 

here. 

Senator CASSIDY. Again and just to repeat that, the main rationale that we’ve been given is not the rationale used by NLRB to justify this. 

Mr. COHEN. That’s correct. 

Senator CASSIDY. Ms. Sencer, I keep on thinking of that poor gal. 

She’s got a business with 10 employees. She’s not a member. It 

wasn’t in your written remarks, but you mentioned—listen, everyVerDate Nov 24 2008 16:24 Feb 28, 2017 Jkt 000000 PO 00000 Frm 00041 Fmt 6633 Sfmt 6601 S:\DOCS\93356.TXT DENISE
38 

body belongs to a trade association, or many do, so they can call 

and get an attorney. 

I can imagine a woman, she’s got a Subway, she’s got three of 

them, and she’s busting her rear, and she’s got 15 employees, five 

of them are related, and those five decide that they want to 

unionize. She’s not a member of—she should be, of NFIB, but she’s 

not. 

I could also imagine that the union would decide to call the election maybe right when she had to meet with the Federal regulator 

to see if she’s got all of her forms right for—you name it—the Affordable Care Act. Or maybe when she’s about to buy another business. They know she’s up to her elbows in this, and that’s when 

they come at her. 

Would that not be a wise strategy for a union if they wished to, 

as Mr. Cohen says, tie them up in frenetic activity? 

Ms. SENCER. Well, presuming that the union knew when she was 

going to deal with her Federal regulators, and presuming that the 

union knew when she was going to be purchasing another business. 

Senator CASSIDY. Small business. That could happen. 

Ms. SENCER. It could happen. In real terms, it’s not a question 

about what’s most convenient for her as an owner. The question is 

what is it that the majority of the employees in that workplace are 

interested in—— 

Senator CASSIDY. Knowing that the convenience of the owners 

are short shrift in this answer, maybe her convenience is important 

for the business to survive. Has that thought occurred? 

Ms. SENCER. In general, employees don’t like to do anything that 

jeopardizes their own future employment. They are aware of that, 

as well. 

Senator CASSIDY. I know of examples of businesses that shut 

down because they were organized. I can cite you examples. There’s 

a dairy in Baton Rouge, LA, a hulk of a building which no longer 

exists because it was organized. I know that for a fact. Your face 

looks quizzical. I can show you the building. 

Ms. SENCER. It’s not a question of the building. It’s a question 

of how you can so clearly draw that causation, because most unions 

do not enter into a contract with an employer that’s going to result 

in—— 

Senator CASSIDY. Causal. Temporal. Reported in the paper. 

Again, do you agree it would be a nice strategy? If they did actually know when she was about to open another franchise, that this 

is the one we kind of want to go after because, again, her elbows 

are up to that, and now she has to respond to this? Knowing that 

it’s not for her convenience, but still it seems like a great strategy. 

We’re out of time, but I’m just saying I agree with Mr. Scott. It 

seems like we have a balance, it seems like it’s tilting, and it seems 

like the convenience of that small business woman should be considered if her convenience means her ability to keep her business 

going. 

I yield back. 

The CHAIRMAN. Thank you, Senator Cassidy. 

Senator Casey. 

39 

STATEMENT OF SENATOR CASEY

Senator CASEY. Mr. Chairman, thank you very much. 

I want to thank our witnesses for being here. 

We have some very strong disagreements, so there’s no reason to 

not State that. 

I’ve heard a number of words over and over again. I’ve heard the 

title of the hearing. I think the Chairman and I would disagree 

about the first word of the title of the hearing. You might want to 

read that definition later. 

What I haven’t heard a lot about here is voting. This Act is supposed to lead to a process where employees vote. They have the 

right to make a determination for themselves. 

When this law was passed, now 80 years ago, the findings that 

undergirded that statute are pretty significant to remind ourselves. 

I’ll just read one part. 

‘‘Experience has proved that protection by law of the right of 

employees to organize and bargain collectively safeguards commerce from injury—safeguards commerce from injury—impairment or interruption, and promotes the flow of commerce by 

removing certain recognized sources of industrial strife and unrest.’’ 

And it goes on from there. 

It also talks about the impairment of commerce when unions 

don’t do the right thing. 

That’s what this Act is all about. When barriers are erected in 

front of employees to organize or collectively bargain, it makes it 

very difficult to be consistent with that statute. 

I believe that we should be doing everything we can to make sure 

that employees have the right to get all the information they need 

and make an informed decision. 

Ms. Sencer, when I look at not just your testimony but some of 

the elements of what this rule is all about, this new policy, reducing unnecessary litigation, making the system more efficient, making it less expensive for both sides, speeding it up, I thought folks 

who supported businesses wanted to move things along and be efficient. 

I’d ask you just a couple of questions here. One is if what you 

have asserted and what’s been asserted here as the reasons for promoting and implementing this new policy, that employees will be 

less distracted, that the process will work better, why do you think 

there’s the kind of opposition to this proposal that I would argue 

and I think you would argue modernizes and streamlines the 

NLRB election process? 

Ms. SENCER. I really think it’s because people don’t like to share 

power, and people, owners are concerned that in the event their 

employees have a true right to vote in a prompt election where 

they have made their own decisions, that they are afraid that they 

will have to share their power. 

Senator CASEY. One of the concerns I have is that there seems 

to be a real hostility to modern forms of communication—email, 

telephone numbers, information like that that you would think that 

both sides would want to have the benefit of. 

40 

The notion here that—and it’s why I have a disagreement with 

the first word of the title of the hearing. I even looked it up. The 

first word in this hearing is defined as ‘‘surprise attack by people 

lying in wait in a concealed position.’’ I hardly think that the possibility, the prospect of an election in a workplace is the equivalent 

to someone being in a concealed position and surprising someone 

by an act of violence or something else. That’s really a stretch. 

I hope we can continue to debate this and have legitimate disagreement. What I can’t understand is the basic hostility to getting 

more information in front of people. 

In my own experience—and this is anecdotal; it’s not a study or 

a specific set of data. In my experience in the health care context 

in Pennsylvania, in a couple of instances, not all but in a couple 

of instances where folks at hospitals were trying to organize, they 

would hire a law firm which was a union buster. I’m not asserting 

that law firms here are, but in that context the conclusion I 

reached was that that law firm was hired simply to bust the union. 

I know that’s strong language. I know people don’t like that, but 

if we can disagree about my phrase before the word ‘‘union’’ or 

after the word ‘‘union,’’ then we can probably have a legitimate disagreement about the title of the hearing. 

Thanks, Mr. Chairman. 

The CHAIRMAN. I want to thank the witnesses for excellent testimony and for joining us today, and the Senators for participating. 

Senator Murray, do you have any closing remarks? 

Senator MURRAY. I just want to thank all of our Senators who 

participated, and our panelists too, for your insight into this. 

I hope at the end of the day that we all agree that when workers 

want to vote to join a union, that the election process should be fair 

and transparent. I know we have a disagreement on this issue, and 

I’m sure we’ll hear more about it, but I hope at the end of the day 

that we remember our role is to make sure that workers have a 

voice in that process. 

Thank you, Mr. Chairman. 

The CHAIRMAN. Thank you, Senator Murray. 

I listened carefully to Senator Casey’s definition of the first word 

in the title. I think it’s pretty accurate. The rule forces a union 

election before an employer has a chance to figure out what’s going 

on. 

We have differences of opinion. We’ll have a chance to continue 

that on the floor of the Senate, when we’ll ask the Senate to disapprove the NLRB’s new rule and prohibit the Board from issuing 

any similar rule, which will come after the congressional recess. 

The hearing record will remain open for 10 days. Members may 

submit additional information and questions for the record within 

that time if they would like. 

All of us thank the witnesses for their time and for coming here 

today. 

The committee will stand adjourned. 

[Additional Material follows.] 

41 

ADDITIONAL MATERIAL 

PREPARED STATEMENT OF SENATOR COLLINS

Thank you, Chairman Alexander and Ranking Member Murray, 

for holding this hearing on the National Labor Relations Board’s 

(NLRB) so-called ‘‘ambush election’’ rule. In the 112th Congress, I 

was an original cosponsor of a joint resolution that disapproved of 

a nearly identical rule issued by the NLRB. 

On December 15, 2014, the NLRB published new regulations 

—which will become effective on April 14, 2015—significantly limiting the time for holding union representation elections. This 

change would result in employees making the critical decision 

about whether or not to form a union in as little as 10 days. The 

rule also requires employers to disclose personal employee contact 

information to possible union representation, which raises real privacy concerns. 

Back in 1959, then-Senator John F. Kennedy explained that ‘‘the 

30-day waiting period [before a union election] is an additional 

safeguard against rushing employees into an election where they 

are unfamiliar with the issues . . . there should be at least a 30- 

day interval between the request for an election and the holding of 

the election’’ to provide ‘‘at least 30 days in which both parties can 

present their viewpoints.’’ I agree with our former President and 

Senator. An expedited timeframe would limit the opportunity of 

employers to express their views and leave employees with insufficient information to make an informed decision. 

According to the fiscal year 2014 NLRB Performance and Accountability Report, union representation elections were held in a 

median of 38 days. That is already below the NLRB’s stated target 

to hold 95 percent of its elections within 56 days. Therefore, this 

begs the question of why yet another regulation is even necessary. 

Our Nation’s job creators, the engines of any lasting economic 

growth, have been saying for some time that the lack of jobs is 

largely due to a climate of uncertainty, most notably the uncertainty and costs created by new Federal regulations. 

According to the National Federation of Independent Business, 

the National Association of Manufacturers, and the U.S. Chamber 

of Commerce, this ambush election rule will negatively affect employers and employees, and small businesses in particular. Small 

business owners often lack the resources and legal expertise to 

navigate and understand complex labor processes within such a 

short timeframe. In our current economy, it is critical that we do 

everything possible to advance policies that promote U.S. economic 

and job growth. I fear this rule will do the opposite. 

The NLRB’s goal should be to ensure fair elections and a level 

playing field for all. Again, Mr. Chairman, thank you for calling 

this hearing. 

42 

SOCETY FOR HUMAN RESOURCE MANAGEMENT (SHRM), 

ALEXANDRIA, VA 22374-3499, 

FEBRUARY 10, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

Hon. PATTY MURRAY, Ranking Member, 

Senate Health, Education, Labor, and Pensions Committee, 

428 Dirksen Senate Office Building, 

Washington, DC 20510. 

DEAR CHAIRMAN ALEXANDER AND RANKING MEMBER MURRAY: The Society for 

Human Resource Management, the U.S. Chamber of Commerce, the Coalition for 

a Democratic Workplace, the National Association of Manufacturers, and the National Retail Federation thank you and the other distinguished members of the Senate Health, Education, Labor, and Pensions (HELP) Committee for holding today’s 

full committee hearing on how the National Labor Relations Board’s (NLRB) recent 

‘‘ambush’’ elections rule will harm both employers and employees. 

As organizations representing workplaces across the country and across industries, we believe the ‘‘ambush’’ rule violates the National Labor Relations Act, the 

Administrative Procedure Act, and the Free Speech Clause of the Constitution of the 

United States. We have joined together to file a lawsuit in U.S. District Court for 

the District of Columbia challenging the rule, and asking the court to vacate and 

set aside the rule. We respectfully request that our attached complaint, motion for 

summary judgment, and memorandum of points and authorities in support of that 

motion be entered for the record. 

Sincerely, 

Society for Human Resource Management, 

U.S. Chamber of Commerce, 

Coalition for a Democratic Workplace, 

National Association of Manufacturers, 

National Retail Federation. 

Attachment 

SOCETY FOR HUMAN RESOURCE MANAGEMENT (SHRM), 

ALEXANDRIA, VA 22374-3499, 

FEBRUARY 10, 2015. 

Hon. LAMAR ALEXANDER, Chairman, 

U.S. Senate, 

Committee on Health, Education, Labor, and Pensions, 

428 Dirksen Senate Office Building, 

Washington, DC. 20510. 

DEAR CHAIRMAN ALEXANDER: On behalf of the Society for Human Resource Management (SHRM) and more than 275,000 HR professionals, I am writing to express 

strong support for S.J. Res 8, a joint resolution of disapproval that would block the 

National Labor Relations Board’s (NLRB) representation election rule. SHRM greatly appreciates your leadership on this important issue and commends you for convening a hearing on ‘‘Ambushed: How the NLRB’s New Election Rule Harms Employers & Employees.’’ 

The representation election rule is commonly referred to as the ‘‘ambush’’ election 

rule because of its focus on speeding up the union election process at the expense 

of employees and employers who will have insufficient time to understand and address the relevant issues about the impact of unionization. SHRM has long supported the fundamental right, guaranteed by the National Labor Relations Act 

(NLRA), of every employee to make an informed, private choice about whether or 

not to join a union. While estimates vary, elections could occur in as little as 11 

days after the employer is notified of an election petition. In addition, the rule severely limits an employer’s ability to challenge aspects of the process prior to the 

election thereby promoting speed of elections over all other goals and requirements 

of the NLRA. At issue is the opportunity for a full and informed debate before an 

election is held. 

SHRM is particularly concerned about the rule’s mandate that employers provide 

their employees’ personal phone numbers and email addresses to labor organizations. HR professionals, who are tasked with protecting employee privacy and personal information, have expressed grave concern throughout the rulemaking process 

about providing this information to organized labor. 

In addition, the boards of 96 SHRM State councils and chapters lent their names 

in support of SHRM’s comments. Over 4,600 individual SHRM members submitted 

43 

their own comments cautioning the NLRB about the impact this proposal would 

have on fair representation elections. Unfortunately, in issuing its final rule, the 

Board did not make substantial changes based on concerns identified by SHRM and 

other stakeholders. 

Given SHRM’s serious and pervasive concerns with this rule, the Society was 

compelled to file a lawsuit challenging the NLRB ambush election rulemaking—notable in that it is only the third time SHRM has challenged a Federal rule in court. 

SHRM’s lawsuit, filed in the U.S. District Court for the District of Columbia, asks 

the court to deem the rule unlawful and set it aside because it violates the NLRA 

and the Administrative Procedure Act, as well as the First and Fifth Amendments 

of the Constitution of the United States. 

As you know, the Congressional Review Act (CRA) establishes procedures for the 

Congress to disapprove of Federal agency rules by enacting a joint resolution of disapproval. It is critically important for Congress to quickly pass a joint resolution of 

disapproval under the CRA so this damaging rule cannot take effect. There is also 

precedent for Congress successfully using the CRA’s procedures to nullify Federal 

rules—OSHA’s ergonomics rule was blocked in 2001. 

Again, thank you for sponsoring this important joint resolution of disapproval. 

SHRM strongly recommends its swift passage. 

Sincerely, 

MICHAEL P. AITKEN, 

Vice President, Government Affairs. 

RESPONSE TO QUESTIONS OF SENATOR KIRK BY CHARLES I. COHEN

Question 1. This new rule issued by the NLRB specifically limits the ability for 

employers and employees to determine the bargaining unit in question prior to a 

Union election. What happens if there is a dispute over the members of the bargaining unit and the Union wins the election? How would an employee who cast a 

contended ballot be treated? 

Answer 1. Assuming the Union wins the vote tally, the new rule will limit the 

ability of an employer to obtain a regional director or Board determination on contested employees prior to the Union being certified as the bargaining representative. 

Specifically, under the new rule, the regional director will only entertain and resolve 

post-election disputes over voter eligibility and bargaining unit inclusion if the number of disputed ballots is great enough to affect the election outcome. 79 Fed. Reg. 

74, 391, 74,393, 74,413 (Dec. 15, 2014). In other words, if the number of disputed 

individuals is sufficiently small so that their votes would not alter the outcome, the 

regional director will decline to address their status and instead issue a certification 

to the Union and require the employer to recognize and bargain thereafter. 

The Board has stated in the new rule that an employer has only two possible 

post-election avenues to have unresolved voter eligibility and bargaining unit inclusion issues addressed, including: (1) mutual agreement with the Union as part of 

the first contract bargaining or (2) a unit clarification (‘‘UC’’) petition filed after negotiations begin, which can be resolved by a regional director, subject to discretionary review by the Board. 

Question 2. Is there precedent for this lack of clarity in the establishment of a 

bargaining unit? 

Answer 2. Although under existing rules it is possible for a bargaining unit to be 

certified with voter eligibility and inclusion issues left unresolved, the new rule will 

lead to a significant increase in the number of bargaining units that are not clearly 

defined following a union election victory. In this regard, the new rule’s expansion 

of uncertain bargaining units post-election is unprecedented, as under prior procedures, the Board was required to take evidence on voter eligibility and bargaining 

unit inclusion disputes before the election, and in most cases regional directors rendered a decision on those matters prior to an election, subject to potential Board 

review. Now such disputes, in the vast majority of cases, will be wholly deferred for 

evidence-taking and decisionmaking purposes, until after the election, and resolved 

only if the number of disputed ballots is sufficient to affect the election outcome. 

RESPONSE TO QUESTION OF SENATOR KIRK BY MARK A. CARTER

Question. Under the NLRB rule, employers are required to furnish employee 

names, personal telephone numbers, personal email address, job classification, shift 

times, in addition to mailing address within 2 days following direction of election. 

These so-called ‘‘Excelsior lists’’ are required without significant direction on how 

the Union may use the contact information following the election. What, if anything, 

44 

1 79 Fed. Reg. 74,308, et seq. (Dec. 15, 2014) (to be codified at 29 CFR Parts 101,102 and 103). 2 (Id.) 3 79 Fed. Reg. 74,359 (Dec. 15, 2014). 

4 Id. The NLRB did not conclusively rule out the potential that misuse of the voter list could 

result in the setting aside of an election but plainly indicated that a distinct—and unidentified— 

remedy was more appropriate. ‘‘At the same time, the fact that misuse of the list could not warrant setting aside the results of an election does not mean that the misuse should be remedied 

in a manner appropriate to the circumstances;’’ (Id.) 5 Id. 6 Id. 7 Id. Again, the NLRB recognized that misuse of the information ‘‘may be a violation of Section 

8(a)(1) or 8(b)(a) [sic]’’ However, the Agency also wrote the same conduct may be ‘‘objectionable.’’ 

In the final analysis the NLRB offers little or no guidance as to whether the misuse of the voter 

list is remediable at all. 8 Id. 

would prohibit a Union from selling this private contact information to third parties? 

Answer. While the final regulation of the National Labor Relations Board 1 would 

prohibit the use of Excelsior Lists for purposes other than matters ‘‘related’’ to a 

representation proceeding, the NLRB has expressly chosen not to identify any 

meaningful enforcement mechanism for that direction. 

In its Order implementing the ambush election regulation 2 the NLRB wrote: 

. . . even when the voter information is disclosed to the non-employer parties 

in a particular case, such parties will not be able to use it for whatever purpose 

they desire. Rather, they will only be allowed to use employee contact information for limited purposes. As discussed below, the final rule provides that ‘‘parties shall not use the list for purposes other than the representation proceeding, 

Board proceedings arising from it, and related matters.’’ Thus, employees need 

not fear that their contact information once disclosed, will be shared with or sold 

to entities having nothing to do with the representation proceeding. And should 

such misuse of the list occur, the Board will provide an appropriate remedy, as 

discussed further below. 

79 Fed. Reg. 74,344 (Dec. 15, 2014) (emphasis supplied) 

However, employees should be concerned for a variety of reasons. 

First, the ‘‘appropriate remedy’’ the NLRB references that would punish misuse 

of their contact information is expressly not identified by the NLRB. In the section 

of the Order implementing the final rule dealing with ‘‘Restriction and Remedies for 

Misuse of the Voter List,’’ the Board recognizes that, 

. . . it goes without saying that non-employer parties would run afoul of the 

restriction if, for example, they sold the list to telemarketers, gave it to a political campaign or used the list to harass, coerce or rob employees. 

79 Fed. Reg. 74,358 (Dec. 15, 2014) 

However, while strictly warning ‘‘non-employers’’ (aka Unions) that the practice 

is prohibited, and repeatedly announcing its authority to fashion an ‘‘appropriate 

remedy,’’ the NLRB avoids the obligation to identify what an appropriate remedy 

is. 

. . . the Board has concluded that it would not be appropriate at this time to 

specify a remedy, or set of remedies, that would be appropriate in all situations. 

79 Fed. Reg. 74,359 (Dec. 15, 2014) 

As such, the agency has expressly identified a right and failed to identify a corresponding remedy. Beyond that, the NLRB goes on to identify several scenarios 

where it does not deem circumstances appropriate to announce that specific remedies are available. 

• Union misuse of voter list after an election by selling it to telemarketers should 

not warrant setting aside an election result; 3

• Misuse of voter list should not always warrant setting aside an election result; 4

• Misuse of voter list should not prohibit a future organizing drive targeting the 

victimized employees by the perpetrating Union; 5

• Misuse of voter list should not always result in injunctive proceedings by the 

General Counsel to prohibit the continuation of the violation of the prohibited misuse of information by a Union;. 6

• Misuse of the voter list should not always be construed as a violation of 

‘‘§ 8(b)(1)’’ of the Act; and 7

• Unions should not be required to establish and follow security protocols to safeguard employees’ personal information. 8

45 

9 It is noteworthy that in an interpretive memorandum from the General Counsel of the NLRB 

issued on April 6, 2015 (GC-Memorandum 15–06) the chief attorney for the agency writes that 

‘‘(a) party may decide to raise allegations of misuse by filing objections to the election or an unfair labor practice charge.’’ (Id. at p. 36) However, as the NLRB Order opines that misuse of 

the voter list will not always warrant setting aside an election result or constitute a violation 

of § 8(b)(1) the utility of such an allegation is highly questionable, if not absent. 10http://edworkforce.house.gov/news/document single/aspx? Document ID=398591. 

Far from deterring unions desiring to, inter alia., sell employees’ personal contact 

information to telemarketers, among other abuses of that sensitive information, the 

NLRB both declines to identify one single remedial measure that should consistently 

be utilized to address misuse, and, provides an extensive list of misuse of the employees’ information for which it would take no remedial action.9 The prohibitions 

authored by the NLRB could easily be interpreted as endorsements of the misuse 

of employees’ personal information. 

This is particularly concerning given the propensity of labor unions to misuse employee information in the past. On March 19, 2015 the Education and The Workforce Committee of the U.S. House of Representatives issued a press release reciting 

several examples of union misuse of personal information of employees. 10

In 2006 Jennifer Parrish was visited by a stranger asking her to sign a union 

authorization card at her home. She repeatedly declined to sign the card at 

which point the stranger became angry. To get him to leave she agreed to sign; 

When a Patricia Pelletier and her co-workers decertified the union representing them, union operatives responded by allegedly forging her signature 

on numerous magazine subscriptions and consumer product solicitations. She 

was billed thousands of dollars by magazines jeopardizing her credit rating; 

When 33 AT&T union members resigned from their union and ceased paying 

dues, the union posted their names and social security numbers on a publicly 

accessible bulletin board stating that the employees had resigned from the 

union and ceased paying dues. 

Now, the agency charged with policing the misuse of such personal information 

is vastly expanding its proliferation and is identifying no consistent remedial measures to insure the security of that information. 

In sum, while the NLRB has announced that non-employer parties to representation proceedings—or unions—are prohibited from misuse of this sensitive information by selling it to telemarketers, that agency has failed to identify any consistent 

remedial measure to enforce that prohibition. Moreover, the agency has identified 

an extensive listing of scenarios where unions would not be held accountable as a 

result of engaging in the misconduct that they assert is prohibited. The agency has 

identified a right with no assured remedies. 

Thank you for the opportunity to address the committee on this important issue 

for workers in our Nation. I am happy to supplement this response at your invitation. 

RESPONSE TO QUESTIONS OF SENATOR KIRK BY ELIZABETH MILITO

Question 1. The NLRB has required that Unions send the filed petition to the employer via fax. This is not only a nearly 200-year-old mode of communication, but 

also a potentially unreliable one. What impact on election preparation will this requirement have on small businesses? Particularly those companies founded since 

the invention of more instantaneous and reliable methods of communication that 

may not rely on fax machines in their normal operations. 

Answer 1. Today’s fast-paced work environment, which depends on the use of 

computers, cell and smart phones makes fax machines increasingly outdated and 

unnecessary in the business environment. Email, including PDF transmission of 

documents, has become the preferred method of communication with small business 

owners who contact me for information. Moreover, fax machines can fail and since 

they are rarely used, it might be days before an employee or the business owner 

notices that a machine has run out of paper or that the cartridge is out of ink. In 

addition, documents transmitted via fax may not be as safe and secure as the sender and/or recipient would like. For this reason, I find business owners prefer to have 

documents emailed since this form of communication better ensures that documents 

are received by the intended recipient and do not end up in the wrong hands or sitting on the fax machine or an employee’s desk unread. 

Question 2. Given that the option to send both an email and a fax as notice of 

the petition being filed lies with the Union, the employer could be intentionally left 

in the dark if they do not have immediate access to a fax machine. Under what sceVerDate Nov 24 2008 16:24 Feb 28, 2017 Jkt 000000 PO 00000 Frm 00049 Fmt 6633 Sfmt 6621 S:\DOCS\93356.TXT DENISE
46 

nario would the Union be likely to send both an email and a fax, when it is neither 

mandated, nor in their interests to do so? 

Answer 2. Since time is of the essence in responding to a petition, it would most 

certainly work to the Union’s advantage to give the employer as little amount of 

time as possible to respond. By sending the petition by fax, without email transmission, the Union better ensures that the employer will be delayed in learning 

about the filing of a petition. The shift in the last 10 years toward e-commerce 

means that fax machines are not routinely checked in the office and a transmission 

might sit for days unnoticed whereas an email is likely to be read much sooner. 

RESPONSE BY CAREN P. SENCER TO QUESTIONS OF SENATOR ALEXANDER AND

SENATOR KIRK

SENATOR ALEXANDER

Question 1. On Monday, February 9, 2015, NLRB Chairman Pearce issued a statement in which he said ‘‘it is undeniable that modernizing and streamlining the 

[union election] process is far overdue.’’ Given the statistics we heard during the 

hearing—that the timeframes for more than 95 percent of union elections surpass 

the NLRB’s own goals, and that unions are winning 64 percent of union elections— 

do you find Chairman Pearce’s statement accurate? 

Answer 1. I believe that Chairman Pearce’s statement is correct. The percentage 

of elections that Unions are winning is irrelevant to whether the procedure is working as efficiently as it could or should be for all parties. 

The internal guideline to conduct elections within 42 days was adopted in 1997 

by the General Counsel’s office. The goal was set within the confines of the existing 

regulations and then current technology. It was clear that elections could be conducted in significantly less time but 42 days was set as a goal because it was believed to be achievable. Now, unnecessary delay and gamesmanship can be further 

reduced. Thus, the statistic that 95 percent of elections are held within the NLRB’s 

own goal is misleading because that goal took into consideration inefficient rules, 

obsolete technology, and then permissible delay tactics. 

Question 2a. In your testimony, you claim —as the NLRB did in its final rule announcement—that the rule would expedite the union representation process. Are 

you at all concerned that rushing through elections and not addressing important 

issues up front may lead new, longer delays in first contract negotiations? 

Could the rule actually make the overall process longer by increasing the number 

of cases that must be litigated in court? (For example, ‘‘refusal to bargain’’ cases.)

Answer 2a. I do not believe that the final rules will result in ‘‘rushing through 

elections.’’ Additionally, in my experience, the discourse prior to an election does not 

address the issues that are later addressed in contract negotiations. Much employer 

campaigning has to do with matters unrelated to the workplace issues that need fixing in negotiations. Much employer discourse consists of union bashing, promises of 

change and entreaties for ‘‘one more chance’’ to make things right without a union. 

Completing the election process faster will result in employers being encouraged to 

get down to contract negotiations sooner where workplace issues can be discussed 

and resolved. It is unlikely that a shorter period between filing a petition and certification would have an impact on the average time until a first contract is reached. 

The issues that are resolved through the election procedure have to do with the 

scope of the unit to be represented, not the ultimate bargaining positions of the parties. 

Question 2b. One tenant of the Employee Free Choice Act was to have an outside 

arbitrator impose all terms of a labor agreement on the parties if they failed to 

reach an agreement in 90 days. Is this an idea that you support? Please explain. 

Answer 2b. Although the Employee Free Choice Act is outside the scope of my 

testimony, I’m happy to respond to this question. An arbitrator’s imposition of terms 

of a first collective bargaining agreement is a provision of the California Agricultural Labor Relations Act. In that procedure, the arbitrator, who always must be 

an ‘‘outsider’’ to be impartial, reviews the final proposals made by both parties and 

the background information which supports them, including bargaining history, 

wage rates in the area, and the relative size of the employer to others in the industry in the geographic area, and can impose a first contract when the parties are unable to reach agreement. Frequently, the use of a mediator or arbitrator in any contract negotiation results in an agreement that both parties support. The analysis 

is the same in negotiations for a first contract. Anything that helps parties reach 

a resolution which both find acceptable should be encouraged. The threat of an imposed contract keeps both parties on track for good faith negotiations. I would supVerDate Nov 24 2008 16:24 Feb 28, 2017 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 S:\DOCS\93356.TXT DENISE
47 

port some form of first contract arbitration as part of a package of labor law reform 

to modernize the National Labor Relations Act. It has worked in California under 

our Agricultural Labor Relations Act and there is no reason it would not work at 

the Federal level. 

Question 3. Under the new NLRB rule, an employee could be forced to vote on 

whether to form a union without knowing which fellow employees would be a part 

of the bargaining unit. As many as 20 percent of the proposed bargaining unit may 

be contested—but the NLRB would still force an election. Are you concerned about 

situations where an employee’s ‘‘yes’’ or ‘‘no’’ depends on which other employees 

would be cast in the group? (For example, cashiers may not want to bargain with 

loading dock employees because they have different priorities.) 

Answer 3. First, a point of clarification: the 20 percent rule referenced in Senator 

Alexander’s question was taken out prior to the final rule. However, the final rule 

does provide discretion for the regional director to allow some percentage, that she 

finds reasonable in the given specific case, to vote by a challenge ballot procedure. 

While employees have some choice in designing their unit, that choice has always 

been limited by the National Labor Relations Act which requires the unit to share 

a community of interest. That long standing rule has served to create bargaining 

units in various industries that make sense for employees, employer and unions. 

I am not aware of any situation in which a group of employees have said, ‘‘I don’t 

want to be in the unit if that other group of employees is too’’ and the union has 

not petitioned for them separately to ensure that their interests are kept separate. 

In addition, in larger groups that include multiple classifications when it comes to 

having their interests heard, each has an opportunity to be heard at the bargaining 

table and have their views represented. 

Question 4. In your testimony, you State that there is ‘‘no record of abuse by 

unions of voter eligibility lists,’’ but are there examples of unions misusing employees’ personal information in other contexts? (For example, as retaliation for rescinding union membership or for filing decertification petitions.) 

Should employees have the ability to ‘‘opt-out’’ of having their contact information 

sent to union organizers’ Please explain. 

Answer 4. I have no direct or indirect knowledge regarding any cases of unions 

misusing employee’s personal information in any context. I have never heard of it 

happening. The union is a voluntary organization. If employees, either at a specific 

employer or other employers in the industry or the area, knew that the union was 

misusing confidential or private information, the union would be punished in the 

market place by people refusing to affiliate with it. The union has no incentive to 

misuse employee information as it results in harm to its credibility with the very 

people it is looking to serve. In my experience unions keep information about members and others strictly confidential for these reasons. 

There should not be any process to opt-out of having contact information sent. The 

goal of the Excelsior rule is to provide each individual employee an opportunity to 

receive all available information so they may make an informed choice. One of the 

original goals of that rule was to make the election process work better so that both 

sides would have a list of eligible voters to assure that only eligible voters would 

cast votes. Without that list, it was difficult to achieve that goal since neither party 

nor the NLRB knew who was eligible. Having all employees on the Excelsior list 

streamlines the process for all parties as each knows who is designated to vote. 

In addition, in the event there was an opt-out process, unless that process was 

completely overseen by the National Labor Relations Board, thus adding work for 

its already stretched staff and further delaying the election procedure, the employer 

would know which employees opted-out. The employer would have the opportunity 

to coerce employees to opt-out, and could use the choice of employees to opt-out as 

a way to survey the bargaining unit. This polling regarding employee’s union sympathies would violate Federal law. 

As was stated at the hearing, the National Labor Relations Act does not exempt 

small employers based on the number of employees, as most labor and employment 

statutes do. 

Question 5a. Should the NLRA be brought into line with other labor and employment statutes in this way? 

Answer 5a. It is unclear what other labor and employment statutes are referred 

to in the question. Title VII of the Civil Rights Act of 1964 and the Americans with 

Disabilities Act apply to employers of 15 employees or more. The FLSA applies regardless of the number of employees if the commerce threshold is met ($500,000 in 

sales per year) or the employer is engaged in interstate commerce. In some States, 

like California, the thresholds are even lower with either no exemption based on the 

48 

size of the employer for general employment law and five employees for anti-discrimination laws. 

Although unions sometimes petition for units smaller than 5 or 15, these employees are generally part of a larger organization. For example, there may be eight mechanics at a garage where a fleet of school buses is housed. Although the unit of 

mechanics is small, the employer may have over 50 employees. This is not a small 

employer and would be subject to all labor and employment laws. All employees are 

entitled to the protection of the NLRA as long as they are in a bargaining unit larger than one and certain jurisdictional standards are met. In this way, the NLRB’s 

refusal to take jurisdiction over any petition seeking only one employee or over an 

employer with low annual revenue is a de facto exemption for small employers. The 

right to engage in collective action should not be limited because of the size of the 

employer that you work for. 

Question 5b. Do you agree that the burdens of this rule will fall most heavily on 

small employers that are unfamiliar with labor law? 

Answer 5b. In my experience, unions are not organizing small employers. The continual repetition of the impact of this rule on small employers is just a red herring. 

If an employer is small, the burdens are small. For example, producing an Excelsior 

list, providing the names of contact information of members in the sought for bargaining unit, is an easy task if there are only eight individuals in the bargaining 

unit and is, in fact, a more difficult task when you have a larger employer with a 

larger unit of employees involved. While it is true that larger employers are more 

likely to have in-house resources or counsel on retainer or individuals inside their 

organization that are likely to be addressing these types of issues, it is not a significant burden for an employer with eight employees to pull from its electronic system 

or to simply type out the contact information of those eight individuals. 

SENATOR KIRK

Question. Under the NLRB rule, employers are required to furnish employee 

names, personal telephone numbers, personal email address, job classification, shift 

times, in addition to mailing address within 2 days following direction of election. 

These so-called ‘‘Excelsior lists’’ are required without significant direction on how 

the Union may use the contact information following the election. What, if anything, 

would prohibit a Union from selling this private contact formation third parties? 

Answer. This question is similar to question 4 from Senator Alexander and results 

in the same response. Any union that sold its private information to a third party 

would wind up unable to organize any future workers and would likely feel push 

back from its current and existing membership. There is no incentive for a union 

to do this. Even in the event that a union is not successful in organizing a group 

of employees, they would have no incentive to sell the information because it would 

ruin their ability to organize these employees at any other point in time. And you 

can be sure that if a union did sell contact information, management would make 

an issue out of it in future campaigns. The requirement to produce an eligibility list 

has existed for decades and I have represented hundreds of unions that have received such a list. None of those unions have misused the list in any way. It just 

has never happened. 

[Whereupon, at 10:48 a.m., the hearing was adjourned.] 

Æ