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[Senate Hearing 114-559]
[From the U.S. Government Publishing Office]

                                                        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

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                          Washington, DC 20402-0001

          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                  LAMAR ALEXANDER, Tennessee, Chairman

MICHAEL B. ENZI, Wyoming             PATTY MURRAY, Washington
RICHARD BURR, North Carolina         BARBARA A. MIKULSKI, Maryland
JOHNNY ISAKSON, Georgia              BERNARD SANDERS (I), Vermont
RAND PAUL, Kentucky                  ROBERT P. CASEY, JR., Pennsylvania
SUSAN COLLINS, Maine                 AL FRANKEN, Minnesota
LISA MURKOWSKI, Alaska               MICHAEL F. BENNET, Colorado
MARK KIRK, Illinois                  SHELDON WHITEHOUSE, Rhode Island
TIM SCOTT, South Carolina            TAMMY BALDWIN, Wisconsin
ORRIN G. HATCH, Utah                 CHRISTOPHER S. MURPHY, Connecticut
PAT ROBERTS, Kansas                  ELIZABETH WARREN, Massachusetts
BILL CASSIDY, M.D., Louisiana

               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)
 
    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 
electronically. 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.
    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.
    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, 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 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \2\ 79 Fed. Reg. 74,308-490 (Dec. 15, 2014).
    \3\ 79 Fed. Reg. at 74,430 (dissent).
---------------------------------------------------------------------------
    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. 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.
---------------------------------------------------------------------------
    \4\ Dunlop Commission on the Future of Worker-Management Relations, 
Final Report at 41 (Dec. 1, 1994).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ Chamber of Commerce v. Brown, 554 U.S. 60, 67-8 (2008).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \6\ 79 Fed. Reg. at 74,326 n.83.

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

    Employees will, in practice, be asked to ``vote now, understand 
later.'' \8\
---------------------------------------------------------------------------
    \8\ Id. at 74,430 (dissent).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \13\ 79 Fed. Reg. at 74,341-42.
---------------------------------------------------------------------------
    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.
    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.
    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 pre-election 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\
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    \1\ Of 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.
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  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:
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    \2\ 29 U.S.C.  158(c).

        . . .  The expressing of any views, argument or opinion, or the 
        dissemination thereof, whether in written, printed, graphic, or 
        visual form, shall not constitute or be evidence of an unfair 
        labor practice under any of the provisions of this (Act), if 
        such expression contains no threat of reprisal or promise of 
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        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 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.)
---------------------------------------------------------------------------
    \3\ 79 Fed. Reg. at 7377 n. 46.
---------------------------------------------------------------------------
    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.
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    \4\ The 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.
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    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.
    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 non-union 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 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.
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    \5\ This list of employees is commonly called the ``Excelsior'' 
list.
---------------------------------------------------------------------------
    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.
    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.
    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.
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    \1\ http://www.nfib.com/about-nfib/what-is-nfib-/who-nfib-
represents (last visited February 9, 2015).
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    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.
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    \2\ https://www.sba.gov/sites/default/files/FAQ_March_2014_0.pdf 
(last visited February 9, 2015).
    \3\ Id.
    \4\ Id.
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    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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 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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 in-house 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.
    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 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 anti-union 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 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. Sixty-seven 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.
    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 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.
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    \1\ The 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.
---------------------------------------------------------------------------
    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.
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    \2\ Excelsior Underwear, Inc., 156 NLRB 1236 (1966).
---------------------------------------------------------------------------
    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 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 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.
---------------------------------------------------------------------------
    \3\ California Labor Code 1140 et seq.
---------------------------------------------------------------------------
    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.
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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 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 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 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 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 statements 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 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.
    Most significantly for them, it's not really the hearing 
that becomes most significant. Most significant is that week 
for the post-hearing 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.
    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, 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.

                      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 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, everybody 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.

                       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.
    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.]

                          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.
                                ------                                

       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 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, 
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.
---------------------------------------------------------------------------
    \1\ 79 Fed. Reg. 74,308, et seq. (Dec. 15, 2014) (to be codified at 
29 CFR Parts 101,102 and 103).
---------------------------------------------------------------------------
    In its Order implementing the ambush election regulation \2\ the 
NLRB wrote:
---------------------------------------------------------------------------
    \2\ (Id.)

           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\
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    \3\ 79 Fed. Reg. 74,359 (Dec. 15, 2014).
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     Misuse of voter list should not always warrant setting 
aside an election result; \4\
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    \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.)
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     Misuse of voter list should not prohibit a future 
organizing drive targeting the victimized employees by the perpetrating 
Union; \5\
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    \5\ Id.
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     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\
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    \6\ Id.
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     Misuse of the voter list should not always be construed as 
a violation of `` 8(b)(1)'' of the Act; and \7\
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    \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.
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     Unions should not be required to establish and follow 
security protocols to safeguard employees' personal information. \8\
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    \8\ Id.

    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.
---------------------------------------------------------------------------
    \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.
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    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\
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    \10\ http://edworkforce.house.gov/news/document single/aspx? 
Document ID=398591.

          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 scenario 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 support 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 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 contactformation 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.]

                              [all]
```