U.S. GOVERNMENT PUBLISHING OFFICE

25–712 PDF WASHINGTON : 2019

LEGISLATIVE REFORMS TO THE NATIONAL 

LABOR RELATIONS ACT: 

H.R. 2776, WORKFORCE DEMOCRACY AND 

FAIRNESS ACT; 

H.R. 2775, EMPLOYEE PRIVACY PROTECTION ACT; 

AND, H.R. 2723, EMPLOYEE RIGHTS ACT 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR, AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, JUNE 14, 2017 

Serial No. 115–18 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: www.govinfo.gov 

or 

Committee address: http://edworkforce.house.gov 

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(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

VIRGINIA FOXX, North Carolina, Chairwoman 

Joe Wilson, South Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn ‘‘GT’’ Thompson, Pennsylvania 

Tim Walberg, Michigan 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Glenn Grothman, Wisconsin 

Elise Stefanik, New York 

Rick W. Allen, Georgia 

Jason Lewis, Minnesota 

Francis Rooney, Florida 

Paul Mitchell, Michigan 

Tom Garrett, Jr., Virginia 

Lloyd K. Smucker, Pennsylvania 

A. Drew Ferguson, IV, Georgia 

Ron Estes, Kansas 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Takano, California 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Donald Norcross, New Jersey 

Lisa Blunt Rochester, Delaware 

Raja Krishnamoorthi, Illinois 

Carol Shea-Porter, New Hampshire 

Adriano Espaillat, New York 

Brandon Renz, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS 

TIM WALBERG, Michigan, Chairman 

Joe Wilson, South Carolina 

David P. Roe, Tennessee 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Rick W. Allen, Georgia 

Jason Lewis, Minnesota 

Francis Rooney, Florida 

Paul Mitchell, Michigan 

Lloyd K. Smucker, Pennsylvania 

A. Drew Ferguson, IV, Georgia 

Ron Estes, Kansas 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Ranking Member 

Frederica S. Wilson, Florida 

Donald Norcross, New Jersey 

Lisa Blunt Rochester, Delaware 

Carol Shea-Porter, New Hampshire 

Adriano Espaillat, New York 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Suzanne Bonamici, Oregon 

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(III) 

C O N T E N T S 

Page 

Hearing held on June 14, 2017 ............................................................................... 1 

Statement of Members: 

Sablan, Hon. Gregorio Kilili Camacho, Ranking Member, Subcommittee 

on Health, Employment, Labor, and Pensions ........................................... 6 

Prepared statement of ............................................................................... 9 

Walberg, Hon. Tim, Chairman, Subcommittee on Health, Employment, 

Labor, and Pensions ..................................................................................... 1 

Prepared statement of ............................................................................... 5 

Statement of Witnesses: 

Borden, Mr. Seth H., Partner, McGuirewoods LLP, New York, New York . 42 

Prepared statement of ............................................................................... 44 

Calemine, Mr. Guerino J., III, General Counsel, Communications Workers of America, Washington, DC .................................................................. 26 

Prepared statement of ............................................................................... 28 

Cox, Ms. Karen, Dixon, Illinois ....................................................................... 21 

Prepared statement of ............................................................................... 23 

McKeague, Ms. Nancy, Senior Vice President and Chief of Staff, Michigan 

Health and Hospital Association, Okemos, Michigan ................................ 11 

Prepared statement of ............................................................................... 14 

Additional Submissions: 

Mr. Sablan: 

Article: Time Is On Your Side .................................................................. 8 

RWDSU, UFCW membership form .......................................................... 75 

Letter dated June 14, 2017, from United Food and Commercial Workers International Union (UFCW) ......................................................... 77 

Graph: Percentage of wage and salary workers who were members 

of unions, total and private sector, 1983-2016 .................................... 80 

Press Release: New Illinois Members at Americold Win First Contract ......................................................................................................... 82 

Letter dated June 13, 2017, from SEIU .................................................. 86 

Chairman Walberg: 

Letter dated June 13, 2017, from the National Retail Federation 

(NFR) ...................................................................................................... 89 

Letter dated June 14, 2017, from the Retail Industry Leaders Association (RILA) ......................................................................................... 90 

Letter dated June 13, 2017, from the Associated Builders and Contractors, Inc. (ABC) ................................................................................ 92 

Americans for Tax Reform and The Center for Worker Freedom 

Support The Employee Rights Act (ERA) ............................................ 93 

Prepared statement of Professional Janitorial Service (PJS) ................ 94 

Heritage Action Supports Rep. Phil Roes’s Employee Rights Act ......... 97 

Letter dated June 14, 2017, from the Workforce Fairness Institute .... 99 

Letter dated June 14, 2017, from the Workforce Fairness Institute .... 101 

Prepared statement of the Independent Electrical Contractors ............ 103 

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(1) 

LEGISLATIVE REFORMS TO THE NATIONAL 

LABOR RELATIONS ACT: 

H.R. 2776, WORKFORCE DEMOCRACY AND 

FAIRNESS ACT; 

H.R. 2775, EMPLOYEE PRIVACY 

PROTECTION ACT; AND, 

H.R. 2723, EMPLOYEE RIGHTS ACT 

Wednesday, June 14, 2017 

House of Representatives, 

Subcommittee on Health, 

Employment, Labor, and Pensions, 

Committee on Education and the Workforce, 

Washington, D.C. 

The subcommittee met, pursuant to call, at 1:01 p.m., in Room 

2175, Rayburn House Office Building, Hon. Tim Walberg [chairman of the subcommittee] presiding. 

Present: Representatives Walberg, Wilson of South Carolina, 

Roe, Allen, Lewis, Mitchell, Smucker, Ferguson, Estes, Sablan, 

Norcross, Espaillat, and Courtney. 

Also Present: Representatives Foxx and Scott. 

Staff Present: Bethany Aronhalt, Press Secretary; Andrew 

Banducci, Workforce Policy Counsel; Courtney Butcher, Director of 

Member Services and Coalitions; Ed Gilroy, Director of Workforce 

Policy; Jessica Goodman, Legislative Assistant; Callie Harman, 

Legislative Assistant; Nancy Locke, Chief Clerk; Geoffrey MacLeay, 

Professional Staff Member; John Martin, Professional Staff Member; James Mullen, Director of Information Technology; Alexis 

Murray, Professional Staff Member; Krisann Pearce, General Counsel; Lauren Reddington, Deputy Press Secretary; Brandon Renz, 

Staff Director; Joseph Wheeler, Professional Staff Member; Tylease 

Alli, Minority Clerk/Intern, Fellow Coordinator; Kyle deCant, Minority Labor Policy Counsel; Christine Godinez, Minority Staff Assistant; Stephanie Lalle, Minority Press Assistant; Kevin 

McDermott, Minority Senior Labor Policy Advisor; Richard Miller, 

Minority Senior Labor Policy Advisor; Udochi Onwubiko, Minority 

Labor Policy Counsel; and Veronique Pluviose, Minority General 

Counsel. 

Chairman WALBERG. A quorum being present, the Subcommittee 

on Health, Employment, Labor, and Pensions will come to order. 

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2 

Before we move into the subject of today’s hearing, I want to 

start by saying, I wish this morning would have started differently. 

Many of us are still processing the tragic events that have occurred 

this morning, and I know that our thoughts and prayers are focused on friends in the hospital at this moment, including a former 

staffer of mine, graduate of Adrian College, Adrian, Michigan, my 

home county, and a young man who became like a third son to Sue, 

my wife, and myself, who is in surgery at this time and in very 

grave condition. 

It’s very hard to imagine that such a tragedy could have occurred 

while our colleagues were doing something as simple as practicing 

for a charity baseball game before they came to work. The horrific 

events of this morning have made us all pause and give thanks for 

the brave men and women of the Capitol Police who serve and protect us all, whether Members of Congress, whether staff members 

or visitors to this great institution of democracy. 

As well as giving thanks for a strong Capitol Hill community, 

with friends and family who have rallied together in support of 

those who have been impacted by the events of this morning. Members of this Capitol Hill community are here because they are answering a call, a call to serve the American people, and the best 

way we can help those impacted by the events of this morning is 

by continuing to serve our fellow citizens. 

Additionally, I want to thank our witnesses, the audience members, and fellow members of the committee for their cooperation 

with the rescheduling of our hearing, which undoubtedly has 

caused some disruption of plans. 

I will come back to my opening comments following some other 

comments that will be made by my colleagues here. But I would 

also like to do something, and I just request, with all due respect, 

of my colleagues that you would allow me, as a Christian -- and 

I certainly respect all faiths, but as a Christian, I believe in power 

of prayer. And it’s not normal that we open our committee hearings 

in prayer, but I would like to do that this afternoon. 

Father, we don’t come to You just in a moment of silence. We 

come to You as a loving God who hurts when Your created beings 

go through challenging, difficult, painful circumstances, and ultimately circumstances that indicate there is still evil. 

So, today, even before we carry on with the business that we 

have been sent here to do, we call upon You to address these very 

unique concerns, thinking of the Capitol Police personnel, Matt 

Mika, and Steve Scalise, who are all in various processes of having 

their wounds, their injuries, the life-threatening things cared for. 

We ask that You would protect them, that You would sustain 

them, and that You would heal them, that You’d be with their families, families who are hurting and worried and concerned, families 

who have this impact upon their lives for days, weeks, maybe years 

to come. We ask that You would sustain them and, for the community here in this Capitol, that You would undertake for needs as 

well. 

Lord, we pray as well that You would restore our country, that 

You would heal our divides, that You would bring us together, and 

that You’d create a Nation indivisible with liberty, justice for all. 

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I thank You that You can hear and answer those prayers. And it’s 

in the name of Jesus I pray. Amen. 

I would now yield to my friend and colleague, the ranking member, Mr. Sablan, for your comments. 

Mr. SABLAN. Thank you very much, Chairman Walberg. 

I know that words are insufficient at this time, and I can only 

imagine how you feel when you found out that Matt, one of your 

former staff, was wounded this morning. I was horrified also when 

Seth came to pick me up, give me a ride to a meeting we had that 

one of our own colleagues, staff and former -- and Capitol Hill Police officers were in an accident -- were shooting victims in a practice for tomorrow’s game. My heart goes out to the families. My 

prayers go out to Steve, Congressman Scalise, the staff, the Capitol 

Police, their families, and all of those affected by this morning’s 

horrible event. 

And just as Speaker Ryan said earlier today, when one is attacked, we are all attacked. I pray that there’s no more such incidents in the future. 

But for you, Mr. Chairman, I know this is also personal, and I’ll 

keep you in my prayers as well. 

I yield back. 

Chairman WALBERG. I thank the gentleman. 

Now, I’d like to recognize the ranking member of the full committee, Mr. Scott, for any comments on this morning that you will 

like to share. 

Mr. SCOTT. Thank you, Mr. Chairman, and thank you for the opportunity to speak briefly about this morning’s shooting in Alexandria. 

Like you, I was shocked and saddened to learn of what happened 

this morning to our colleagues gathered to practice for the annual 

Congressional Baseball Game. Our thoughts and prayers are with 

Majority Whip Scalise, Zach Barth, Congressman Roger Williams’ 

staff, and your former staffer, Matt Mika, now with Tyson Foods, 

also, the two Capitol Police officers who heroically intervened and 

were shot while responding to this incident, and, of course, to all 

of their families. I remain hopeful that each of the victims will recover. 

Mr. Chairman, violence has no role in our political discourse. 

While we have disagreements over policies and sometimes get in 

heated debates, each of us and our staffs are motivated by a shared 

common principle: It is love for our country and the desire to make 

the lives of the people we represent better. I’ve seen that every day 

that I’ve had the honor and privilege to serve in this Chamber, and 

I wish the American people could actually see firsthand the close, 

bipartisan friendships that are developed here. 

It’s my understanding that the Congressional Baseball Game will 

go on as planned tomorrow evening. That’s great news. This annual 

event has always been an opportunity for Democrats and Republicans to come together for a friendly game of baseball while raising 

money for local charities. 

This moment of levity in Washington is always needed, but certainly now more than ever. 

So I thank you, Mr. Chairman. I yield back. 

Chairman WALBERG. I thank the gentleman. 

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4 

And you’re absolutely right, and that’s why this hearing is going 

on as well. We will not have evil stop us from doing our business 

we’ve been called to do. 

And, Bobby, I hope you noticed: I didn’t pray for victory for the 

Republican side tomorrow. We won last year, but it has been a long 

time coming. So we’ll see what happens tomorrow evening. But I 

think we’ll all win by playing the game, absolutely. 

Well, this brings us to our hearing this morning, as we work to 

address pressing issues that impact hard-working Americans. And 

I recognize myself for an opening statement. 

Our first subcommittee hearing of the 115th Congress was focused on the need to restore balance and fairness to federal labor 

policies. This has long been a priority for House Republicans, and 

today, we are taking the next step in our efforts. 

The National Labor Relations Act was signed into law more than 

80 years ago to protect the rights of workers in union elections. 

Congress understood workers deserve the opportunity to make informed decisions on union-related matters and that employers deserve a level playing field with labor leaders. 

The NLRA established important protections. It also created a 

neutral arbiter, the National Labor Relations Board, to serve as a 

fair and objective referee over labor disputes. But that certainly 

has not been the NLRB we’ve come to know, I believe, in recent 

years. Instead, over the last eight years, the Board launched an activist agenda aimed at tilting the balance of power toward powerful 

special interests. Unfortunately, it came at the expense of the hardworking men and women who keep our economy moving. 

Decision after decision by the NLRB restricted the rights of 

workers and employers. Make no mistake: both Republicans and 

Democrats respect the right of workers to join a union. I was a 

union worker. But workers also deserve the right to make a free 

and informed decision in that matter. That means workers should 

have the chance to hear from both sides of the debate, and I hope 

we can all agree workers deserve to make a decision in an environment free of threats, coercion, or intimidation. 

However, the NLRB’s actions over the years sent a different message. For example, in 2015, the Board implemented a rule designed 

to rush employees into union elections. The Board dictated that 

workers should only be afforded as few as 11 days to make a decision on whether or not to join a union. That’s roughly a week and 

a half to consider all the facts and consequences before casting a 

vote on a personal issue that directly impacts on employees’ job 

and paycheck and future. 

Meanwhile, employers were given just seven days to find legal 

counsel and prepare their entire case before the NLRB hearing officer. That’s nearly impossible for most employers, let alone a smallbusiness owner. 

With such a short timeframe, employers hardly have a chance to 

communicate with their employees. But limiting debate and stifling 

employer free speech for the sake of speeding up union elections 

was precisely what the Board had in mind, I believe. It’s no surprise that union elections have been organized 38 percent faster 

since this new rule took effect. 

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5 

To make matters worse, the rule jeopardized the privacy of workers and their families. The NLRB forced employers to hand over 

the private information of their employees to union organizers, including home addresses, phone numbers, email addresses, work locations, and work schedules. 

At the same time, workers and employers have been hit with a 

micro-union scheme that empowered union leaders to gerrymander 

the workplace. This new standard has created division in workplaces across the country, buried small business in red tape, and 

undermined job creation. 

It’s long past time to put an end to these misguided policies. 

That’s why I was proud to introduce the Workforce Democracy and 

Fairness Act to restore the rights of workers and employers in 

union elections. 

My colleague, Representative Joe Wilson, has also introduced the 

Employee Privacy Protection Act. This important legislation will 

safeguard the privacy of America’s workers and give them greater 

control over their personal information. 

In addition, Dr. Phil Roe introduced the Employee Rights Act to 

ensure workers aren’t stuck in unions they no longer support. The 

bill would modernize the union election process, require periodic 

union recertification elections, and give workers more control over 

how their union dues are spent. 

These are all commonsense proposals that will protect the rights 

of workers and restore balance and fairness to the rules governing 

union elections. I hope we can have a thoughtful discussion as we 

review these positive reforms. 

And I will now yield to Ranking Member Sablan for his opening 

remarks. 

[The statement of Chairman Walberg follows:] 

Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on 

Health, Employment, Labor and Pensions 

Our first subcommittee hearing of the 115th Congress was focused on the need 

to restore balance and fairness to federal labor policies. This has long been a priority for House Republicans, and today, we are taking the next step in our efforts. 

The National Labor Relations Act was signed into law more than 80 years ago 

to protect the rights of workers in union elections. Congress understood workers deserve the opportunity to make fully informed decisions on union-related matters, 

and that employers deserve a level playing field with labor leaders. 

The NLRA established important protections. It also created a neutral arbiter— 

the National Labor Relations Board—to serve as a fair and objective referee over 

labor disputes. 

But that’s certainly not the NLRB we’ve come to know in recent years. Instead, 

over the last eight years, the board launched an activist agenda aimed at tilting the 

balance of power toward powerful special interests. 

Unfortunately, it came at the expense of the hardworking men and women who 

keep our economy moving. Decision after decision by the NLRB restricted the rights 

of workers and employers. 

Make no mistake; both Republicans and Democrats respect the right of workers 

to join a union. But workers also deserve the right to make a free and informed 

decision in the matter. 

That means workers should have the chance to hear from both sides of the debate. 

And I hope we can all agree workers deserve to make a decision in an environment 

free of threats, coercion, or intimidation. 

However, the NLRB’s actions over the years sent a different message. For example, in 2015, the board implemented a rule designed to rush employees into union 

elections. 

The board dictated that workers should only be afforded as few as 11 days to 

make a decision on whether or not to join a union. That’s roughly a week and a 

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6 

half to consider all the facts and consequences before casting a vote on a personal 

issue that directly impacts an employee’s job and paycheck. 

Meanwhile, employers were given just seven days to find legal counsel and prepare their entire case before an NLRB hearing officer. That’s nearly impossible for 

most employers, let alone a small business owner. 

With such a short time frame, employers hardly have a chance to communicate 

with their employees. But limiting debate and stifling employer free speech for the 

sake of speeding up union elections was precisely what the board had in mind. It’s 

no surprise that union elections have been organized 38 percent faster since this 

new rule took effect. 

To make matters worse, the rule jeopardized the privacy of workers and their 

families. The NLRB forced employers to hand over the private information of their 

employees to union organizers, including home addresses, phone numbers, email addresses, work locations, and work schedules. 

At the same time, workers and employers have been hit with a micro-union 

scheme that empowered union leaders to gerrymander the workplace. This new 

standard has created division in workplaces across the country, buried small businesses in red tape, and undermined job creation. 

It’s long past time to put an end to these misguided policies. That’s why I was 

proud to introduce the Workforce Democracy and Fairness Act to restore the rights 

of workers and employers in union elections. 

My colleague Representative Joe Wilson has also introduced the Employee Privacy Protection Act. This important legislation will safeguard the privacy of America’s workers and give them greater control over their personal information. 

In addition, Dr. Phil Roe introduced the Employee Rights Act to ensure workers 

aren’t stuck in unions they no longer support. The bill would modernize the union 

election process, require periodic union-recertification elections, and give workers 

more control over how their union dues are spent. 

These are all commonsense proposals that will protect the rights of workers and 

restore balance and fairness to the rules governing union elections. 

Mr. SABLAN. Thank you, Chairman Walberg, for holding this 

hearing today. I thank and welcome all the witnesses also for being 

here with us today. 

At my first hearing as ranking member of this subcommittee, I 

stated that the purpose of the National Labor Relations Act was to 

strengthen unions as an institution in our economy to ensure that 

wealth is more fairly shared. 

When working Americans are empowered to collectively bargain 

with their employers over wages and conditions of employment, 

productivity gains can be linked to wage growth. However, the 

three bills under consideration today sabotage workers’ ability to 

organize and collectively bargain for a better life. 

Make no mistake about it, taken together, these bills are not just 

union-busting bills; they’re union elimination bills. Workers should 

have a right to a fair union election. In any normal election, you 

have to win a majority of those voting to win. 

H.R. 2723 would require the union to win a majority of all eligible voters. This means that every person who does not vote is 

counted as a ‘‘no’’ vote against a union. And my colleagues all know 

that this is now how our elections work and that many of us would 

not be here if we have to get 50 percent plus one of all eligible voters in our elections. 

H.R. 2723 would mandate an election every three years, if 50 

percent of the workforce changed, on whether employees should 

even have the right to have a representative and collectively bargain. Workers already have democratic rights under union constitutions. They can vote under collective bargaining agreements, and 

under existing law, they can vote to decertify the unions if they do 

not want one. 

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7 

This bill would force each local union to misdirect its resources 

to battle for its very existence on a continuing basis instead of 

building a stable collective bargaining relationship. So it is fundamentally at odds with the NLRA-stated purpose to promote collective bargaining. 

Employees have a right to be fully informed in a union election, 

yet both H.R. 2775 and H.R. 2776 would overturn the NLRB’s election rule that promotes transparency by assuring that the union 

and the employer have the same employee contact information. 

H.R. 2776 would provide three major impediments to union elections. It would impose a minimum 35-day waiting period just to 

hold an election, even in instances where the employer and employees agree to a speedier election; it would delay pre-election hearings for at least 14 days; and it reverses a rule that requires litigation on some issues to occur only after the election. The bill would 

enable frivolous litigation, which is often used for the purpose of 

delay. In fact, employer law firms openly encourage companies to 

engage in pre-election litigation as a way to buy time to allow the 

heat of the union’s message to chill prior to the election. 

Mr. Chairman, I ask unanimous consent to introduce a document 

from the Jackson Lewis law firm website into the record. 

Chairman WALBERG. Without objection, and hearing none, it will 

be entered. 

[The information follows:] 

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Jackson Lewis Time Is On Your Side 

After a Labor Board representation election petition is 

filed, the employer must decide: (1) lf it wants to 

participate ln a hearing before the Labor Board regarding 

any voter eligibility issues; or (2) whether it wm simply 

reach a voluntary election agreement about these issues, 

eliminating the need for a hearing. A hearing of some 

length can put valuable time between the union's 

moment of maximum support - when the election petition 

was filed - and the date of the election. During that time, 

an employer can communicate with its employees and 

hope to erode support for the union. In a recent 

campaign among 870 registered nurses at South Shore 

Hospital in Massachusetts (which was represented by 

Jackson Lewis). a 27-day hearing contributed to the five-month period between the filing of 

the petition and the election. According to David Schi!dmeier, a spokesperson for the union, 

"The five-month delay was a killer." 

Hearings do not always work to the employer's advantage, nor are they always available or 

advisable. However, if a hearing !s !egal!y warranted, an employer should consider it an 

opportunity for the heat of the union's message to chill prior to the election. 

http://63.!18.75.7/legalupdates/article.cfm?aid=250[12/7/20118:25:09 PM] 
9 

Mr. SABLAN. Thank you. 

The National Labor Relation Act -- the NLRA seeks to assure 

employees the fullest freedom of association and does so by directing the National Labor Relations Board to determine the unit appropriate for the purpose of collective bargaining. Yet this bill directly empowers employers to gerrymander the bargaining unit by 

allowing them to add voters who do not share an overwhelming 

community of interests with those seeking to form a union and 

might have no interest in joining a union. 

As we learned in our February 14 subcommittee hearing, the 

NLRB’s Specialty Healthcare decision ensures the voting unit cannot be gerrymandered by the employer. Eight -- eight separate federal circuit courts of appeals have approved this decision, and not 

one has overturned it. 

Specialty Healthcare has not led to the parade of horribles 

trumpeted by those who claim that microunits would proliferate 

and create havoc. The median bargaining unit size has remained 

at approximately 26 in the years before and after a Specialty decision. 

But before I close, I ask my colleagues not to be deceived by the 

names given to these union elimination bills. The Employee Rights 

Act takes rights away from employees. The Employee Privacy Protection Act does not protect intrusions of an employee’s privacy 

from their employer. And the Workforce Democracy and Fairness 

Act undermines fair and democratic union elections by allowing unnecessary delay on elections based on gerrymandered voting units. 

This is the 27th hearing that this committee has held on unions 

since my colleagues start -- the Republican majority took over. And 

I hope in the future we can spend nearly that amount of time on 

retirement security, job safety, and other issues more pressing to 

the American people. 

While we may disagree, I want to thank the chairman for allowing regular order on these bills. I also want to thank each of the 

witnesses for taking the time to prepare their testimony and appear here today. And I thank you also for your patience because 

of the delay. 

Finally, I want to recognize a young lady, Nadia Ali, who is here 

today. Nadia is interning in my congressional office this week as 

part of the program with the Girl Scouts of America. 

Welcome, Nadia. 

And I yield back, Mr. Chairman. 

[The statement of Mr. Sablan follows:] 

Prepared Statement of Hon. Gregorio Kilili Camacho Sablan, Ranking 

Member, Subcommittee on Health, Employment, Labor and Pensions 

Thank you Chairman Walberg for holding this hearing today. 

At my first hearing as Ranking Member of this subcommittee I stated that the 

purpose of the National Labor Relations Act was to strengthen unions as an institution in our economy to ensure that wealth is more fairly shared. 

When working Americans are empowered to collectively bargain with their employers over wages and conditions of employment, productivity gains can be linked 

to wage growth. 

However, the three bills under consideration today sabotage workers’ ability to organize and collectively bargain for a better life. Make no mistake about it, taken 

together these bills are not just union busting bills, they are union elimination bills. 

Workers should have a right to a fair union election. In any normal election, you 

have to win a majority of those voting to win. H.R. 2723 would require the union 

EDL-011-D with DISTILLER

10 

to win a majority of all eligible voters. This means that every person who does not 

vote is counted as a ‘‘no’’ vote against the union. 

My colleagues all know that is not how our elections work and that many of us 

would not be here if we had to get 50% + 1 of all eligible voters in our elections. 

H.R. 2723 would mandate an election every three years, if 50% of the workforce 

changed, on whether employees should even have the right to have a representative 

and collectively bargain. Workers already have democratic rights under union constitutions: they can vote on their collective-bargaining agreements, and, under existing law, they can vote to decertify their unions if they do not want one. This bill 

would force each local union to misdirect its resources to battle for its very existence 

on a continuing basis, instead of building a stable collective bargaining relationship. 

It is fundamentally at odds with the NLRA’s stated purpose to promote collective 

bargaining. 

Employees have a right to be fully informed in a union election. Yet both H.R. 

2775 and H.R. 2776 would overturn the NLRB’s Election Rule that promotes transparency by assuring that the union and the employer have the same employee contact information. 

H.R. 2776 would provide three major impediments to union elections. It would impose a minimum 35-day waiting period just to hold an election, even in instances 

where the employer and employees agree to a speedier election. It would delay preelection hearings for at least 14 days. And, it reverses a rule that requires litigation 

on some issues to occur only after the election. The bill would enable frivolous litigation which is often used for the purpose of delay. In fact, employer law firms openly 

encourage companies to engage in pre-election litigation as a way to buy time to 

allow ‘‘the heat of the union’s message to chill prior to the election.’’ 

Mr. Chairman, I ask unanimous consent to introduce a document from the Jackson Lewis law firm website into the record. 

The NLRA seeks ‘‘to assure employees the fullest freedom of association,’’ and 

does so by directing the National Labor Relations Board to determine ‘‘the unit appropriate for the purposes of collective bargaining’’. Yet this bill directly empowers 

employers to gerrymander the bargaining unit, by allowing them to add voters who 

do not share an ‘‘overwhelming community of interest’’ with those seeking to form 

a union and might have no interest in joining a union. 

As we learned in our February 14 Subcommittee hearing, the NLRB’s Specialty 

Healthcare decision ensures the voting unit cannot be gerrymandered by the employer. Eight separate Federal Circuit Courts of Appeals have approved this decision, and not one has overturned it. 

Specialty Healthcare has not led to the parade of horribles trumpeted by those 

who claim that ‘‘micro’’ units would proliferate and create havoc. The median bargaining unit size has remained at approximately 26 in the years before and after 

the Specialty decision. 

Before I close, I ask my colleagues not to be deceived by the names given to these 

union elimination bills. The Employee Rights Act takes rights away from employees. 

The Employee Privacy Protection Act does not protect intrusions of an employee’s 

privacy from their employer. And the Workforce Democracy and Fairness Act undermines fair and democratic union elections by allowing unnecessary delay and elections based on gerrymandered voting units. 

This is the 27th hearing that this committee had held on unions since the Republicans took over the majority. I hope that in the future we can spend nearly that 

amount of time on retirement security, job safety and other issues more pressing 

to the American people. 

While we may disagree, I want to thank the Chairman for following regular order 

on these bills. I also want to thank each of the witnesses for taking the time to prepare their testimony and appear here today. 

Finally, I want to recognize a young lady, Nadia Ali, who is here today. Nadia 

is interning in my office this week as part of a program with the Girl Scouts of 

America. Welcome Nadia. 

I yield back. 

Chairman WALBERG. I thank the gentleman. 

And now we’ve heard the parameters of the issue, and that’s the 

way it should be. 

And, Nadia, welcome. 

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11 

Pursuant to committee rule 7(c), all members will be permitted 

to submit written statements to be included in the permanent 

hearing record. 

And, without objection, the hearing record will remain open for 

14 days to allow such statements and other extraneous material 

referenced during the hearings to be submitted for the official hearing record. 

It’s now my pleasure to introduce our distinguished panel of witnesses. Ms. Nancy McKeague, from my home state of Michigan, is 

senior vice president of employer and community strategies and 

chief human resources officer for the Michigan Health & Hospital 

Association and not a stranger to this panel. 

Welcome. 

Ms. Karen Cox is a cycle counter handling inventory at an auto 

parts storage facility in Dixon, Illinois. 

Welcome. 

Mr. Jody Calemine is general counsel at the Communications 

Workers of America. Additionally, Mr. Calemine is a former staffer 

here at the committee for the minority. 

Welcome back. 

Mr. Seth Borden is a partner at McGuireWoods LLP, representing management in labor and employment matters. Welcome. 

I’ll now ask our witnesses to raise your right hand. 

[Witnesses sworn.] 

Chairman WALBERG. Let the record reflect the witnesses all answered in the affirmative. 

Before I recognize you to provide your testimony, let me briefly 

explain our lighting system. Most of you have been through this before, but it’s like the traffic light. When it’s green, keep going in 

your five minutes of testimony. When it hits yellow, begin to wrap 

up. You have a minute remaining. And when it hits red, don’t be 

like me, just sliding it through, but finish your thought as quickly 

as possible. And we’ll have opportunity to ask questions. It will 

probably bring further opportunity to finish your statements. 

And so now let me recognize our first witness for the first five 

minutes of testimony, Ms. McKeague. 

STATEMENT OF NANCY MCKEAGUE, SENIOR VICE PRESIDENT 

AND CHIEF OF STAFF, MICHIGAN HEALTH & HOSPITAL ASSOCIATION, OKEMOS, MICHIGAN, TESTIFYING ON BEHALF 

OF THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT 

Ms. MCKEAGUE. Thank you, Mr. Chairman. Good afternoon to all 

of you. 

And my sympathies to you, your staff members, and those who 

protect you for the situation this morning. 

Good afternoon, Chairman Walberg, Ranking Member Sablan, 

and the members of the committee. It’s an honor to be here to discuss legislative reforms to the National Labor Relations Act. I serve as senior vice president and chief of staff for the Michigan 

Health & Hospital Association, or MHA, a nonprofit association advocating for hospitals and the patients they serve throughout the 

state of Michigan. And I appear before you today on behalf of the 

Society for Human Resource Management, or SHRM. 

EDL-011-D with DISTILLER

12 

Mr. Chairman, SHRM has always supported balanced labor-management relations and believes an employee’s decision on unionization should be based on relevant and timely information as well as 

free choice. Additionally, H.R. professionals have a responsibility to 

understand, support, and champion employment-related actions 

that are in the best interest of both the organization and its employees regarding third-party representation by labor unions. 

Unfortunately, the NLRB’s ambush rule substantially shortens 

the period of time when a representation petition is filed and when 

an election is held while severely hampering an employer’s right to 

exercise free speech during union organizing campaigns. The rule 

also cripples the employer’s ability to learn the employer’s perspective on the impact of collective bargaining on the workplace. 

Consider, for example, that MHA allows employees up to five 

weeks to complete their annual benefit open enrollment, a friendly, 

noncontroversial process that requires open dialogue between the 

employer and employee so both parties understand their healthcare 

elections. During this time, our employees have access to our providers so they’re fully educated on any potential changes and the 

impact those changes might have on them or their family. This engagement provides our employees assurances that everyone is best 

interests are served. 

Although MHA has never experienced an organizing effort, I 

know SHRM members that have, and it’s clear to me that a similar 

amount of time and focus would be needed to educate supervisors, 

staff, and employees about the rights, requirements, and our perspectives on the organizing drive. 

But the ambush rule would greatly diminish the ability of employers to adequately respond, because it allows for an election 

within 11 days of a petition being signed. Now, contrast this with 

the ability of unions to prepare for their entire organizing campaign before it’s made public, which clearly creates an imbalance 

between the rights of employees, employers, and labor organization 

in the pre-election period. This imbalance is compounded for small 

employers who may lack an H.R. professional or access to legal 

counsel, and for multi-state employers who may have decentralized 

operations, making expedited communication with employees very 

difficult. 

Given these concerns, SHRM appreciates the chairman’s leadership in introducing H.R. 2776, the Workforce Democracy and Fairness Act to restore fairness to union elections, providing both employers and employees ample time to review a union petition. 

Now, I want to take a minute to discuss employee privacy issues 

associated with the Excelsior List. SHRM is deeply concerned that 

the ambush rule requires employers to provide personal information to union organizers, including home addresses, home and cell 

phone numbers, without employees’ consent once a union petition 

has been signed. 

Mr. Chairman, this is abhorrent, and it goes against everything 

that H.R. professionals have been trained to do without providing 

any safeguards for the information being shared with union organizers. Therefore, SHRM supports H.R. 2775, the Employee Privacy 

Protection Act, to address these privacy concerns and allow employEDL-011-D with DISTILLER

13 

ees to choose how they want to be contacted if a union petition is 

signed. 

Finally, SHRM is concerned with the interplay between the 

NLRB Specialty Healthcare decision and the ambush rule. Their 

concurrent existence provides labor organizations the ability to effectively target any industry or subgroup with the union petition. 

As outlined in my written statement, MHA has been advising 

hospitals across the state to prepare for this type of micro-union organizing activity because the success of any hospital is dependent 

on the ability of its staff members to work as a cohesive unit with 

mutual respect. And this decision threatens this vital component 

and empowers union organizers to create division and discord 

among professional employees. 

In closing, Mr. Chairman, SHRM looks forward to working with 

this committee to advance H.R. 2775 and H.R. 2776. Importantly, 

these bills would modernize the election process while providing 

employees the privacy they desire while also restoring the delicate 

balance between the rights of employers, employees, and labor organizations. 

Again, thank you for this opportunity, and I look forward to your 

questions. 

[The statement of Ms. McKeague follows:] 

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14 

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STATEMENT OF NANCY MCKEAGUE, SHRM-SCP, SPHR 

SENIOR VICE PRESIDENT & CHIEF OF STAFF 

MICHIGAN HEALTH & HOSPITAL ASSOCIATION 

OKEMOS,MI 

ON BEHALF OF THE 

SOCIETY FOR HUMAN RESOURCE MANAGEMENT 

SUBMITTED TO 

U.S. HOUSE COMMITTEE ON EDUCATION AND THE WORKFORCE, 

SUBCOMMITTEE ON HEALTH, EDUCATION, LABOR & PENSIONS 

HEARING ON 

"LEGISLATIVE REFORMS TO THE NATIONAL LABOR RELATIONS 

ACT: H.R. 2776, WORKFORCE DEMOCRACY AND FAIRNESS ACT; 

H.R. 2775, EMPLOYEE PRIVACY PROTECTION ACT; AND H.R. 

2723, EMPLOYEE RIGHTS ACT" 

}UNE 14,2017 
15 

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Introduction 

Chairman Walberg, Ranking Member Sablan and distinguished members of the Committee, 

my name is Nancy McKeague. I am the Senior Vice President and Chief of Staff at the 

Michigan Health & Hospital Association, based near Lansing, Michigan. I am honored to be 

here today to discuss legislative reforms to the National Labor Relations Act (NLRA), 

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

Privacy Protection Act. 

1 appear before you today on behalf of the Society for Human Resource Management 

(SHRM), of which I am a member. SHRM is the world's largest human resource (HR) 

professional society, and for nearly seven decades the Society has been the leading 

provider of resources serving the needs of HR professionals and advancing the practice of 

human resource management. SHRM represents 285,000 members that are affiliated with 

more than 575 chapters in the United States and subsidiary offices in China, India and 

United Arab Emirates. 

The Michigan Health & Hospital Association (MHA), founded in 1919 as a nonprofit 

association, works to advance the health of individuals and communities. Through our 

leadership and support of hospitals, health systems and the full care continuum, we are 

committed to achieving better care for individuals, better health for populations and lower 

per-capita costs. Our membership includes all community hospitals in the state, which are 

available to assist each of Michigan's nearly 10 million residents 24 hours a day, seven days 

a week. Michigan hospitals consist of various types of health care facilities, including public 

hospitals-owned by city, county, state or federal government-nonpublic hospitals, which 

are individually incorporated or owned and operated by a larger health system. In total, 

MHA has 110 employees, including 82 exempt employees and 28 nonexempt employees. 

MHA has employees in a variety of occupations including lawyers, physicians, allied health 

professionals, and computer and information technology professionals. 

As you know, the National Labor Relations Board (NLRB) implemented the "ambush" 

election rule in 2015, which fundamentally and needlessly altered the delicate balance 

between the rights of employees, employers and labor organizations in the pre-election 

period-a balance that, prior to the rule, provided employees the opportunity to make an 

educated and informed decision to form, join or refrain from joining a labor organization. 

Moreover, the regulation severely hampers an employer's right to exercise free speech 

during union-organizing campaigns and cripples the ability of employees to learn the 

employer's perspective on the impact of collective bargaining on the workplace. Equally 

troubling is the rule's requirement that employers provide unions with additional 

employee information that was not previously required, such as personal phone numbers 

and e-mail addresses, home addresses, work locations, shifts, and job classifications. Thank 

you, Mr. Chairman, for convening to day's hearing to examine these issues and legislative 

solutions to address the negative effects of the rule. 

In my testimony, I will outline SHRM's views on employee rights under federal labor law; 

discuss the impact the rule has had on hospitals across the state of Michigan; highlight 

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employee privacy issues associated with the excelsior list; explain how micro-unions pose a 

unique challenge to the health care industry; and discuss legislative solutions to address 

challenges under the NLRA. 

SHRM Views on Employee Representation 

Enacted in 1935, the NLRA is the principal statute governing collective bargaining activities 

in the private sector. The NLRA was enacted to ensure the right of employees to assemble 

and collectively bargain with employers on matters of workplace welfare, including wages, 

hours, working conditions and benefits. 

SHRM supports balanced labor-management relations and recognizes the inherent rights of 

employees to form, join, assist or refrain from joining a labor organization. Employee rights 

under the NLRA to form, join, assist or refrain from joining a union without threats, 

interrogation, promises of benefits or coercion by employers or unions must be protected. 

SHRM believes an employee's decision on unionization should be based on relevant and 

timely information and free choice, and that representation without a valid majority of 

employee interest is fundamentally wrong. 

Ultimately, SHRM believes that HR professionals have a responsibility to understand, 

support and champion employment-related actions that are in the best interests of their 

organizations and their employees regarding third-party representation by labor unions. 

The Need for H.R. 2775 and H.R. 2776 

As you know, the ambush election rule substantially shortens the period oftime between 

when a representation petition is filed with the NLRB and when an election is held. SHRM 

is concerned that this does not allow adequate time for employees to develop an educated 

and informed decision to form, join or refrain from joining a labor organization. 

SHRM is also particularly concerned about the rule's mandate that employers provide their 

employees' personal phone numbers and e-mail addresses to labor organizations. SHRM 

members tasked with protecting employee privacy and personal information have 

expressed grave concern throughout the rulemaking process about providing this 

information to organized labor and in the time frames required under the rule. 

At MHA, we dedicate a significant amount of time and effort to communicating to our team 

members about important workplace decisions, such as employee benefits, compensation 

and health care. These arc decisions that impact not only our team members but often the 

team members' families as well. For example, MHA communicates health care benefits 

changes to employees by sending letters to employees' homes to ensure that all employees 

are notified of the pending change. This is a relatively easy exercise for MHA given that we 

have only 110 employees and all are in Michigan. For SHRM members at larger, multi-state 

employers, a great deal of planning and preparation goes into this effort. In many 

situations, it requires multiple meetings over multiple days to make sure that those 

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employers can communicate with and educate their employees directly and answer any 

questions employees may have on crucial workplace issues. 

At MHA, our employees value the amount of time they have to make critical decisions 

regarding benefits that not only affect them but their spouses and children as well. For 

example, MHA allows employees up to five weeks to complete their annual benefit open 

enrollment. This is a friendly, noncontroversial process that requires open dialogue 

between the employer and employee so that both understand their health care elections 

for the upcoming year. MHA offers employees the opportunity to talk with our providers so 

that they are fully educated on any potential changes and the impact those changes might 

have on them as an individual or collectively as a family. 

Even though the five weeks is time consuming, our process provides assurances that 

everyone's best interests are served. Although MHA has never experienced an effort to 

organize the workplace, I suspect it would require a similar amount of time and focus from 

our management team to educate our supervisors, staff and employees about the rights, 

requirements and our perspectives on the organizing drive. Knowing this, I struggle to 

envision how we would possibly educate our team members about an organizing drive in 

11 days, which is a permissible amount of time between a union petition filing and a union 

election under the ambush election rule. 

Contrast an employer's experience with a union-organizing effort with that of a union 

preparing to organize. After all, unions can prepare their entire organizing campaign 

before making it public. Unless employers have adequate time to prepare their educational 

materials and to share this information with their employees, employees will not have 

adequate time to learn the employer's perspective on the impact of collective bargaining on 

the workplace. While the precise length of time for the election process varies under the 

ambush election rule, union organizers now can hold an election in as little as 11 days of a 

union petition being signed. This circumstance creates an imbalance between the rights of 

employees, employers and labor organizations in the pre-election period. At the same time, 

the ambush election rule severely impacts an employer's freedom of speech and ability to 

share its perspective with employees about the organizing drive, which creates a distinct 

disadvantage for employers in the organizing process. 

Another major concern for SHRM is that the ambush election rule significantly impairs 

small employers' ability in responding to petitions in an accelerated manner and presents 

significant burdens for large employers with diverse and significant voting units. For 

example, small employers may not have an HR professional on staff or access to legal 

counsel that specializes in labor issues. A large employer, on the other hand, may have a 

geographically dispersed workforce and centralized operations where communicating with 

its employees in such an expedited manner is almost impossible. 

Given these concerns, SHRM believes H.R. 2776, Workforce Democracy and Fairness Act, 

would help restore fairness to union elections by giving both employers and employees 

ample time to review a union petition. Importantly, this legislation ensures that no union 

elections could be held in less than 35 days. 

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SHRM is also deeply concerned that employers are now required to provide personal, 

confidential information about employees when a union petition has been filed. This 

requirement to provide so much confidential information about an employer's employees 

constitutes an invasion of privacy for employees and an unnecessary data collection 

burden on employers. 

Mr. Chairman, one of an HR professional's greatest responsibilities is being trustworthy 

and keeping in confidence employees' personal information and circumstances. In fact, 

failing to do so is grounds for immediate termination at my organization. At MHA, our HR 

professionals collect not only our employees' full names and Social Security numbers but 

those of their spouses and children as well. In addition, MHA collects military records 

(including the D.D. 214), immigration records, medical records, divorce records, education 

transcripts, security or background check information, and occasionally credit reports. 

If we begin to provide to a third party, without employees' consent, personal information 

such as home addresses, home telephone numbers, cell phone numbers, and shift 

schedules, how long do you think the employee will trust us with the rest of the 

employment information we keep? 

This reality is abhorrent and goes against everything that HR professionals have been 

trained to do without providing any safeguards for the information being shared with 

union organizers. In addition, while MHA does collect extensive employee contact data, not 

every employer collects this type of information or can keep the data up-to-date and 

accurate. H.R. 2775 addresses these concerns and provides appropriate levels by allowing 

employees to choose how they would want to be contacted if a union petition was signed. 

Equally challenging is the requirement for the voter eligibility list and employee contact 

information to be provided to the organizing union within two workdays of the Direction of 

Election. Previously, employers had seven workdays to provide this information. While we 

update our employee contact information frequently at MHA, I am positive there are 

instances where the information is outdated or incorrect. I suspect that is true for the bulk 

of employers in the United States. Additionally, for security reasons, employee information 

may be housed in different software programs or databases, meaning it is next to 

impossible in some circumstances to compile this information in two business days let 

alone guarantee its accuracy. 

From the outset, the ambush election rule appeared to be a solution in search of a problem. 

Union density has been declining for decades in America. According to the Bureau of Labor 

Statistics, only 10.7 percent of wage and salary workers in the public and private sectors 

were members of a union in 2016, compared to 20.1 percent in 1983. 1 In 2016, union 

membership declined by 240,000 from 2015 bringing the total number of employees 

belonging to unions to 14.6 million. Even though labor organization leaders have long 

argued that previous laws on union representation favored management and hindered 

1 Bureau of labor Statistics, U,S. Department of labor (2017). https://www,bls.gov/news.release/union2.nrO,htm 

SIPagc 
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employees' ability to organize a union, this data suggests otherwise. The median number of 

days from petition to election decreased from 33 in fiscal year 2015 to 23 in fiscal year 

2016.2 It is clear that other factors have influenced union membership over the last 34 

years. In an attempt to protect union membership, the ambush election rule has severely 

impacted employers' First Amendment rights while limiting the ability of employees to 

make an informed decision as to whether or not to join a union. H.R. 2776 would restore 

fairness to union elections allowing both employers and employees ample time to review a 

union petition under the proposed legislation no union elections could be held in less 

than 35 days. 

Micro-Bargaining Units and MWH 

SHRM believes it is important to raise a serious concern over the interplay between the 

NLRB's decision in NLRB v. Specialty Healthcare and Rehabilitation Center of Mobile 

(Specialty) of Aug. 26, 2011 and the ambush election rule. ln Specialty, the Board 

established a new standard that allows it to deem a unit appropriate unless the employer 

demonstrates that employees in a larger unit share an "overwhelming community of 

interest" with those in the petitioned-for unit. In practice, the Specialty decision allows 

labor organizations to form "micro-bargaining units" and "fragmented units" by permitting 

them to target only subsets of employees who are most likely to support the union. This 

combination of the ambush election rule with the latitude of the Specialty decision 

provides labor organizations the ability to effectively target any industry with a union 

petition. 

In response to this, MHA is advising hospitals and health care systems thoughout the state 

of Michigan to be prepared for mirco-union organizing activity. Specifically, MHA 

recommends that hospitals identify positions that are "similar and constitute a readily 

identifiable group" as well as consider how those positions are "sufficiently distinct" from 

other positions, as prescribed under the Specialty decision. Micro-unions are of particular 

concern to MHA because health care is the ultimate team endeavor, where the needs of the 

patient must come first. If, for example, the nurse practitioners in the cardiac intensive care 

unit are organized but the physician assistants are not (or vice versa) and two of each 

respond to a code blue, it is likely that the physician or charge nurse will violate the 

collective bargaining agreement in some manner during the emergency. This can happen 

when supervisory roles overlap or change, when a medical staff member moves into 

mandatory overtime, or when a medical staff member is called in from another unit, for 

example. Any of these sceneries could result in a deviation from standard work rules under 

the collective bargaining agreement. 

Historically the NLRB has preferred larger "wall-to-wall" bargaining units as a way to 

rationalize the bargaining process and preserve labor peace. The Specialty Hea/thcare 

decision allows unions to sub-divide a workforce into small bargaining units represented 

'National labor Relations Board (2017). Median Days to Elections Graph, Fiscal Year 2007-2016, 

http:lfwww.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election 

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by different unions, each driven by their own self-interest instead of the interest of the 

whole organization. This decision discourages teamwork rather than offering solutions that 

balance the needs of an individual department with the needs of the whole operation. This 

sub-divided situation is terrible for any employer, but is a matter of life or death in a health 

care setting. 

The success of any hospital is dependant on the ability of its staff members to work as a 

cohesive unit with mutal respect. The Specialty decision threatens this vital component and 

empowers union organizers to create division and discord among professional employees. 

In addition to the previous examples, problems may arise where a hospital employee who 

performs cross-functional roles across multiple departments (sub-specialty groups) 

particularly if one such unit has a collective bargaining agreement. In this scenario, it 

becomes inherently difficult for HR professionals to determine how best to classify that 

employee and determine whether he or she has protections under the agreement. In the 

end, HR professionals' attention would be diverted from improving patient care and 

streamlining efficiency. In my opinion, the "overwhelming community of interest" 

language in Specialty is likely why there has been little micro-union activity in the hospital 

setting following the decision. 

Conclusion 

Mr. Chairman, thank you again for holding this hearing to examine needed NLRA reforms to 

address both the ambush election rule and the impact of the Specialty decision. 

SHRM welcomes the introduction of H.R. 2775, Employee Privacy Protection Act and H.R. 

2776, Workforce Democracy and Fairness Act. H.R. 2775 would modernize the election 

process while providing employees the privacy they desire in the 21st century workplace. 

H.R. 2776 would restore the balance between the rights of employees, employers and labor 

organizations in the pre-election period-hopefully resetting the median time from a 

representation petition to an election back to 38 days.3 

SHRM looks forward to working with this Committee as these bills advance through the 

U.S. House of Representatives. I welcome your questions. 

'National Labor Relations Board (201 7). Median Days to Elections Graph, Fiscal Year 2007-2016, 

http:l/www.nlrb.gov/news-outreach/graphs-data/petitions-and-elections/median-days-petition-election 

7j P B 
21 

Chairman WALBERG. Thank you. 

Now I recognize Ms. Cox for your five minutes of testimony. 

STATEMENT OF KAREN COX, DIXON, ILLINOIS 

Ms. COX. Chairman Walberg, Ranking Member Sablan, and 

members of the committee, thank you for the opportunity to testify 

today. My name is Karen Cox. And I’m here today from Dixon, Illinois, a small town from about two hours west of Chicago and the 

boyhood home of former President Reagan. 

Today, I work at an auto parts storage facility in Dixon, but I 

was previously employed at a cold storage facility in Rochelle, Illinois. For those of you who have not worked in cold storage, a typical day involves wearing full-body freezer gear and using a 

standup forklift to move pallets into and out of a storage freezer. 

My story begins in the spring of 2012. Rumors started going 

around about a union trying to come into our workplace. To be specific, this was the Retail, Wholesale, and Department Store Union, 

or RWDSU. I didn’t take it that seriously because my coworkers 

and I were pretty content with our jobs. 

Soon we learned we were going to have an election. I was not 

particularly happy about it, but I thought at least we had time to 

educate ourselves and have a fair vote. But then I came into work 

1 day and I was told the union was in and we were not going to 

have an election. The company had recognized them through a 

process called card check. This bypasses a secret ballot election, 

eliminating employees’ rights to make a real choice for or against 

a union. I had never heard of this before, and it angered me. To 

me, it was un-American, and many of my coworkers agreed. 

Several employees had signed cards because they had been told 

they would just receive information about the union. They didn’t 

know that, if the union got enough signatures, 50 percent plus one, 

the company could recognize them and they could come in without 

an election. 

I had no experience with labor law and no clue what to do. After 

several phone calls to the National Labor Relations Board, I eventually got in touch with a lawyer from the National Right to Work 

Foundation who helped guide me through the process to remove 

the union from the workplace, which is called decertification. It requires collecting signatures from 30 percent of the coworkers in the 

bargaining unit. I had to do this on my own, in break areas only, 

and during nonworking hours. It was a frustrating process, and I 

dealt with intense pressure from the union. 

In November 2012, I made the two-hour trip to Peoria and filed 

the first petition with the NLRB. On my way back, I got a phone 

call from my dad. He told me a rep -- our union rep contacted him 

and mentioned something about people losing their jobs and said 

that I needed to settle my grievances. My dad said: Watch your 

back because that was a threat. 

And I was shocked. 

After I filed my third petition in June 2013, we were granted an 

election. It was held a couple months later in August. However, 

since the union had appealed, we were unable to see the results, 

and the ballots were locked up until a decision was made on their 

appeal. A year later, we were still waiting on that decision, and the 

EDL-011-D with DISTILLER

22 

union contract that they negotiated for us was basically the company handbook. We were paying dues for something we already 

had. 

After several more months of waiting, in the spring of 2015, the 

NLRB finally made a decision. They concluded that we did not deserve the decertification election because, although the union had 

a year to bargain and had even scheduled a contract ratification before I filed the petition that got us the election, they still had not 

had enough time to bargain. 

The ballots were destroyed, and we will never know the results. 

Today, I work at a different storage facility, but my experiences 

with the union at my last job will be with me forever. I am not 

anti-union, but I believe that all employees deserve a fair and secret vote on whether or not they want to join a union. 

That’s why I support the Employee Rights Act, which guarantees 

a secret ballot vote. I want to ensure that other employees don’t 

find themselves in the situation my coworkers and I were in: stuck 

with a union we didn’t have a chance to vote for and that is difficult, if not impossible, to remove from the workplace. 

Thank you for your time today, and I’d be happy to answer any 

questions. 

[The statement of Ms. Cox follows:] 

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TESTIMONY OF KAREN COX 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS 

JUNE 14th, 2017 

Chairmen Walberg, Ranking Member Sablan, and members of the committee, thank 

you for the opportunity to testify today. My name is Karen Cox, and I'm here today from 

Dixon, Illinois, a small town about two hours west of Chicago and the boyhood home of 

former President Reagan. 

Today, I work at an auto parts storage facility in Dixon, but I was previous employed at a 

cold storage facility in Rochelle, Illinois. For those of you who haven't worked in cold 

storage, a typical day involves wearing full body freezer gear and using a stand-up 

forklift to move pallets into and out of a storage freezer. 

My story begins in the spring of 2012. Rumors started going around about a union trying 

to come into our workplace. To be specific, this was the Retail, Wholesale, and 

Department Store Union, or RWDSU. I didn't take it that seriously because my 

coworkers and I were pretty content with our jobs. 

Soon we learned we were going to have an election. I wasn't particularly happy about it, 

but I thought at least we had time to educate ourselves and have a fair vote. But then I 

came into work one day and was told that the union was in and we were not going to 

have an election. The company had recognized them through a process called "card 

check." This bypasses a secret ballot election, eliminating employees' rights to make a 
24 

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real choice for or against a union. I had never heard of this before, and it angered me. 

To me, it was un-American, and many of my coworkers agreed. 

Several employees had signed cards because they had been told they would just 

receive information about the union. They didn't know that if the union got enough 

signatures, 50% plus one, the company could recognize them and they could come in 

without an election. 

I had no experience with labor law and no clue what to do. After several phone calls to 

the National Labor Relations Board, I eventually got in touch with a lawyer from the 

National Right to Work Foundation who helped guide me through the process to remove 

the union from the workplace, which is called decertification. It requires collecting 

signatures from 30% of the coworkers in a bargaining unit. I had to do this on my own, 

in break areas only, and during non-working hours. 

It was a frustrating process and I dealt with intense pressure from the union. In 

November 2012 I made the two-hour trip to Peoria and filed the first petition with the 

NLRB. On my way back I got a phone call from my dad. He told me a union rep 

contacted him and mentioned something about people losing their jobs and said that I 

needed to settle my grievances. My dad said, "Watch your back, because that was a 

threat." I was shocked. 

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After I filed my third petition in June 2013, we were granted an election. It was held a 

couple months later in August However, since the union had appealed, we were unable 

to see the results and the ballots were locked up until a decision was made on their 

appeal. 

A year later, we were still waiting on that decision, and the union "contract" that they 

negotiated for us was basically the company handbook--we were paying dues for 

something we already had. After several more months of waiting, in the spring of 2015, 

the NLRB finally made a decision. They concluded that we did not deserve the 

decertification election because, although the union had a year to bargain and had even 

scheduled a contract ratification before I filed the petition that got us the election, they 

still had not had enough time to bargain. The ballots were destroyed and we will never 

know the results. 

Today I work at a different storage facility, but my experiences with the union at my last 

job will be with me forever. I am not anti-union, but I believe that all employees deserve 

a fair and secret vote on whether or not they want to join a union. That's why I support 

the Employee Rights Act, which guarantees a secret ballot vote. I want to ensure that 

other employees don't find themselves in the situation my coworkers and I were instuck with a union we didn't have a chance to vote for and that is difficult if not 

impossible to remove from the workplace. 

Thank you for your time today. I'd be happy to answer any questions. 

3 
26 

Chairman WALBERG. Thank you, Ms. Cox, for your testimony. 

Mr. Calemine, welcome, and I recognize you for your five minutes. 

STATEMENT OF GUERINO J. CALEMINE, III, GENERAL COUNSEL, COMMUNICATIONS WORKERS OF AMERICA, WASHINGTON, D.C. 

Mr. CALEMINE. Thank you, Chairman Walberg, Ranking Member 

Sablan, and members of the subcommittee. My name is Jody 

Calemine. I am general counsel of the Communications Workers of 

America. We represent hundreds of thousands of workers in the 

private and public sectors across the United States, Puerto Rico, 

and Canada. Thank you for the invitation to testify today. 

Before I begin, I too want to express my shock at the events this 

morning. On behalf of myself and the Communications Workers, 

our thoughts and prayers are with all the victims this morning. It’s 

a horrific, heartbreaking event that we had today. 

As you said, not long ago, I used to work for the committee. It 

feels very funny sitting in front of you instead of behind you, but 

it’s -- you know, it’s great to be back. I wish it was under different 

circumstances. I wish it was about a bill that would bring us all 

together. I wish it was about a bill that would bolster workers’ 

rights. 

I wish we were here to consider a bill that would allow workers 

to freely exercise the full breadth of their bargaining power, so that 

they can negotiate a better life for themselves and their families 

to share in the wealth that they helped create in this country. 

I wish we were talking about a bill that would allow more workers to stand up and fight to bring jobs back to the United States. 

I wish. I wish. 

Instead, the committee is considering three bills that, in my 

view, are nothing but bad news for American workers, and so I 

must speak out against them. I will try to stay measured about 

this. 

I worked on the Hill for 11 years, and all that time, I never saw 

a bill as extreme and provocative and anti-union, anti-worker as 

the Employee Rights Act. Hands down, it is the most far-reaching 

assault against workers’ organizations that I’ve seen introduced in 

the U.S. Congress in modern times. I, personally -- I was beside 

myself when I read it. 

Taken together, as they are presented at this hearing, these bills 

are a very loud alarm bell. In provision after provision, an already 

tilted playing field is tilted even further against the American 

worker. 

Briefly, here’s what they do: The default way that workers organize a union in the private sector is with an NLRB election. The 

bills do their best to rig that election against workers and their 

unions. For example, they try to block workers from communicating with a union before an election. 

If an election happens, the bills stuff the ballot box with antiunion votes by counting every person who doesn’t vote as an antiunion vote. Congressional elections aren’t run that way; if they 

were, few, if any, Members here probably would have won their 

elections. 

EDL-011-D with DISTILLER

27 

These bills work hard to delay union certification elections, to 

give employers more time to campaign while creating a new decertification process that can be triggered by the employer and for 

which these bills tolerate zero delay. 

If you’re a worker trying to get a union, these bills make you 

wait. If you’re an employer trying to destroy a union, these bills 

give you the fast track. These bills allow employers to gerrymander 

the elections, to pack the voter rolls with workers who haven’t been 

involved in the organizing drive and didn’t petition for the election, 

because the employers hope these workers will be ‘‘no’’ votes. 

And if workers try to escape this unfair government-run process 

by negotiating a voluntary recognition agreement with their employer, well, these bills won’t permit it. They strip workers of the 

least conflict-ridden way to win union representation. 

These bills contain at least five different ways to drain union 

treasuries with pointless expenses. These bills strip union members 

of control of their own unions and outrageously give that control to 

employers and nonmembers. These bills seek to criminalize strikes 

and do their best to make being a union member an identity crime. 

I would be happy to answer questions about how the bills accomplish these ends, but I think the more interesting question is 

‘‘why?’’ We’ve seen this across the country, many assaults against 

workers’ rights to organize and collectively bargain in statehouses 

and the courts and here. 

But labor unions win workers higher wages, better benefits, safer 

working conditions. That’s our mission. Labor unions fought for 

and helped win things like minimum-wage increases, health and 

safety protections, sick leave, family leave, Social Security, and 

civil rights, and we do stand in the way of their repeal. 

Labor unions call out unfair trade agreements, and fight everyday to stop companies from outsourcing jobs overseas and to bring 

offshore jobs back home. Workers joining together and fighting for 

a better life, that’s one of the things that made America great. 

Unions fought for and won the American Dream for millions of 

Americans over the last century. We are the single best private sector mechanism for raising workers’ wages. 

Unions are your fellow Americans. Our membership cuts across 

race, gender, and ethnicity, party lines—pulling people together for 

a common project to look out for one another. We have a right to 

exist. Workers’ voices matter to an individual company, to the economy, and to our democracy. No one can make America great again 

without us. 

Thank you. 

[The statement of Ms. Calemine follows:] 

EDL-011-D with DISTILLER

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Before the U.S. House of Representatives Subcommittee on Health, Labor, 

Employment, and Pensions 

Legislative Hearing on H.R. 2776, 2775, and 2723 

June 14, 2017 

Testimony of Guerino J, Calemine, III 

General Counsel, Communications Workers of America 

I appreciate the opportunity to testify at this hearing on three anti-union bills, HR. 2776, 

HR. 2775, and HR. 2723, all with Orwellian titles: the Workforce Democracy and Fairness Act 

(WDFA), the Employee Privacy Protection Act (EPPA), and the Employee Rights Act (ERA), 

respectively. 

I've been asked to analyze these bills for the subcommittee. Deceptively short, these bills 

are chockfull of malicious intent to render elections absurdly undemocratic, strip workers of rights, 

take control of unions away from union members, drain union treasuries, and otherwise destroy 

labor unions. These bills don't reflect sound policy or an attempt at consistent application of rules -

but are a naked political assault on labor unions and nothing more. The subcommittee should reject 

them. 

Here is what the bills do, in nine insidious steps: 

Step One: Block Voter Access to Union Inf01mation 

Two of the bills - EPPA and ERA- seek to make it as difficult as possible for a worker to 

speak with a union organizer before a union certification election. 

A key element of any free and fair election is equal access to voters bythe contending 

parties. Cunent law already fails to provide anything approaching equal access in a representation 

election administered by the National Labor Relations Board (NLRB). Employers may block union 

organizers from accessing the workplace - tl1c one place where all voters congregate. Meanwhile, 

employers have total access to voters in the workplace and may compel voters under threat of 

discipline to attend anti-union captive audience meetings. Current law's attempt at providing a 

modicum of access is the provision of the Excelsor list- a list of voter names, job classifications, 

work locations, shifts, and contact information provided to the union within two days after the 

bargaining unit detennination. 

The authors of EPP A want tl1e union to receive this list of voters as late as possible, to limit 

the union's access to voters ahead of an election. EPPA provides that the voter list may only be 

turned over "not earlier than 7 days after a final determination by the Board of the appropriate 

bargaining unit." This minimum waiting time is not coupled with a maximum waiting time. EPP A 

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does not limit how long the union may be forced to wait for this basic information. TI1e union 

could receive the list of voters the night before the election under EPP A. 

EPP A and ERA would restrict what the list may contain. EPP A provides that the list may 

not provide any more than the voter's name and one form of contact information (telephone, email, 

or mailing address), chosen by the employee in writing. Even if an employee wanted to provide 

more than one way to be contacted, so that they might be sure to obtain information from the union 

before voting, the bill prohibits it. Moreover, since employees make their choice in writing to the 

employer, this procedure is ripe for intimidation and coercion. Supervisors collecting the 

employees' choices may pressure employees into providing the least useful form of contact 

information for the union. 

ERA goes a step further than EPPA in this regard. Under ERA, the list may only include 

employee names and home addresses. Even if an employee wanted to provide an email address or 

telephone number, the bill does not permit it. ERA also allows employees to "elect to be excluded 

from such list by notifying the employer in >vriting." Again, this procedure is ripe for intimidation 

and coercion, ·with supervisors pressuring employees to exclude themselves from the list altogether, 

or workers excluding themselves due to the inherently coercive nature of this process. In that event, 

the union would not !mow the names of the voters, let alone how to contact them before the 

election. 11eanwhile, the employer has had those names all along - and has had constant access to 

those voters in tl1e workplace. 

Th.e point of these provisions is not to ensure a fair election or employee privacy. Both the 

ERA and EPP A couch these provisions as giving employees a choice on what or whether to disclose 

while making sure employees cannot choose freely. First, they cannot choose freely because the 

choices are arbitrarily limited (only home addresses, nothing else, in the case of ERA, or only one 

form of contact and no more, in the case of EPP A), Second, they cannot choose freely because the 

employees must provide their choice to their employer, who controls their working lives and who 

will frown upon the wrong choice or strongly encourage another. Third, they cannot apply those 

same choices toward what information they provide to their employers; nothing in these bills 

prevents employers from requiring their employees to provide them all of their contact information 

as a condition of employment and then using that infom1ation to further the employer's anti-union 

campaign. 

The knife-twisting doesn't stop there. ERA allows employers to pressure voters into 

keeping their existence, let alone their contact information, secret from the union altogether. EPPA 

allows employers to provide the list of voters and contact info1mation to the union as late as 

possible before the election. The point of these provisions is to deprive one party- the union - of 

the opportunity to speak to voters in a timely way- even if the voters want to allow as much 

opporttmityas possible for communications "lvith the union. 

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i Curre~t Law EPPA ERA 

rYes ~Does -- the employer have Yes -Yes 

1 

total access to the voters 

! cvetyday at wotk? 

i 

May the employer require Yes Yes Yes 

voters to attend antiunion captive audience 

meetings? 

~- -- Does the union have the -No No :No 

tight to access the voters i inside the workplace, the l one place they 

L_ I congregate everyday? 

I ~-~~ 

t"-outside of work ~--·--·--~ I How may Outside of work the union i Outs!de of work 

access the voters? I 

! 

1 Is the union guaranteed Yes Yes No 

I to receive a complete list 

I of voter names? 

~----········----- 1 Will the union receive the Yes No No I voters' job classifications, 

work locations and 

r shifts? 

~ the union guaranteed Yes - Yes ~-~-

No 

, to receive some sort of 

1 'contact infonnation for 

each votet? 

May the union receive Yes No No 

mot·e than one form of 

I 

I contact information? I -- What form of conta<:t I I lome address and, if the Only one of rhe following: Home address, unless 

information may the I employer has any of them, Telephone number OR employer obtains written 

union receive, if any? I personal email addresses email address OR mailing requesr from employee to 

and personal cell and address be excluded 

1 telephone numbers. 

I 

Step Two: Stuff Ballot Boxes with No Votes 

The sponsors of ERA set rules for union elections that they wouldn't set for their own 

elections. Under ERA, in a union certification election all non-votes are considered no votes. 

Under current law, the majority of ballots cast detennine the outcome of any election under the 

3 

I 

i 

i 

~ ! 

I 

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National Labor Relations Act (NLRA). Those voters who choose not to cast a ballot simply do not 

count one way or another; they have opted to allow co-workers 'IVTIO cast ballots to decide the 

question of unionization. This should sotmd familiar to members of the Subcommittee, as it is the 

way congressional elections are conducted. 

ERA, however, seeks to stuff the ballot box >~~th no votes. Under ERA, for a union to "Win 

a certification election, it must obtain yes votes from a majority of the employees in the bargaining 

unit, not just the majority of-the employees who cast ballots. 

We don't run political elections this way in the United States. People are free to not cast 

ballots mthout their decision to not vote counting as a vote for one candidate or another. Indeed, if 

the ERA's election rules were applied to congressional elections, none of the original cosponsors of 

this bill would have been elected, per a recent study by the Economic Policy Institute.' None of the 

bill sponsors won a majority of all eligible voters in their congressional districts. Just as such a rule 

would severely hamper the ability of members of this Subcommittee to win elections, the ERA's 

stuff-the-ballot-box provision is designed to severely hamper unions' ability to "Win elections. 

Tellingly, ERA does not apply this rule to its new process for automatic decertification 

elections - employer-triggered elections to get rid of a union. Under that provision, ERA is very 

explicit that anti-union forces do not need a majority of all eligible voters in order to eliminate an 

incumbent union: "If a majority of the votes cast in a valid election reject the continuing 

representation by the labor organization, the Board shall mthdraw the labor organization's 

cettification ... " \Xlhat's good for the goose is not good for the gander because the sponsors of ERA 

are trying to put the law's thumbs on the scale against unions and workers. Fairness and uniformity 

are utterly foreign concepts in this bill. 

~Under ERA, if your shop i Then you need to meet this 1!, In order to... 

1 ! is... i standard ... 

I

, Non-union I .Majority of all eligible voters 

1 

C'.J;rtifya union, triggered by an I 

I 

to vote for the union employee petition ' 

I_U_n_i.on .Majority of just those casting Decertify a union, triggered by 

I 

ba~lots to vote against th~e empb~r's alt.eration of the 

uruon bargammg umt 

______ _j____________ -----------' 

' http://www. ep i.o rg/blog/under-n ew-bills-election-standa rd-un ions-would-never-win -an-electlon-and-n eitherwould-the-bills-cosponsors/ 

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Notice the standard changes depending on whether the election is for a non-union shop to 

become union, or a union shop to become non-union. ERA greases the skids for deunionizing and 

makes the mO\mtain even steeper than it already is for unionizing. 

Step Three: Eliminate ways for workers to form a union and create new ways for 

employers to bust unions 

ERA eliminates a key method by which employees ·win union representation while creating a 

new method just for employers to strip workers of union representation. 

First, ERA prohibits employers from voluntarily recognizing a union based on a showing of 

majority suppcrt from the employees. Voluntary recognition has been pennitted under the l\'LRA 

since its inception. It is the preferred way of organizing because it minimizes the strife of the 

election process, and voluntary recognition usuaUycomes byway of agreements that also require the 

employer to be neutral or provide the union with actual access to the voters in the workplace. In 

these cases, there is no l\lLRB election because an outright majority of the workforee has already 

signed cards seeking recognition of their union and the employer has agreed to recognize. ERA 

does not abide voltmtary recognition because voluntary recognition agreements are the means by 

which the bulk of workers are organized in the workplace today. 

Just to be clear, ERA's prohibition of voluntary recognition is not because secret ballots are 

a sacred principle for ERA ERA does not touch the withdra·wal of recognition doctrine, which is 

the anti-union mirror of voltmtary recognition. Under this doctrine, an employer may 'I'V1thdraw 

recognition from a union without an election if there is a showing that a majority of the employees 

no longer support the union. ERA is fine with this doctrine, even though it does not involve a 

secret ballot election, because it is a way of eliminating a union. 

While blocking workers from voluntary recognition of their tmion, ERA creates new, 

ll!1dcmocratic ways for employers to eliminate a tmion. 

Under ERA, an employer can manipulate its workforee through turnover, expansion, or 

some other alteration, such that the change in the workforce exceeds 50 pereent of the original 

bargaining lll1it size, and trigger an automatic decertification election. This election would happen 

even if not a single employee wants it. It is an election that may be triggered entirely on the 

employer's initiative. 

Interestingly, for all their talk about "ambush elections," the anti-union forees behind this 

bill appreciate speed when it comes to an employer-triggered election. Under this process, speed 

counts. Because of employer alterations, there are brand new workers in the bargaining unit, so 

ERA does not want to give the union workers time to talk to their new brothers and sisters. So a 

petition need not be filed. No hearing is called for. Unfair labor practices cannot staU the election 

date. The election must happen within a maximum 30 day timeframe from the date of the employer's 

alteration of the bargaining tmit when there is no collective bargaining agreement in place. 

Otherwise, in cases where there is a collective bargaining agreement in place, ERA requires the 

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election to happen within a particular 1 0-daywindow (between the 120'h and 11 O'h day prior to 

contract expiration). This entire decertification process happens even if not a single employee wants 

to alter his union representation. The automatic decertification election is an open invitation to 

employers to manipulate their workforces to trigger votes and decertify the union. Again, unlike 

certification elections for new unions, which are designed to be as difficult as possible for the union 

to win, this employer-triggered decertification process requires only a majority of those casting 

ballots to. change the status quo and eliminate the incumbent union. 

Moreover, this new decertification process would undermine the NLRA's emphasis on 

stability in collective bargaining relationships. The process could be triggered by an employer who 

does not even mean to trigger it or sin1ply because of persistently high turnover. Depending on the 

workplace, decertification elections could be happening on a near-constant basis, even though 

neither the employer nor employees want one. They will stop, however, once the anti-union vote 

wins. None of the bills require periodic elections in non-union workplaces to detennine whether 

workers now want a union. 

Step Four: Delay a Union Certification Election When Workers Want One 

Recall that ERA's new employer-triggered method for elections requires elections within a 

maxim11m of 30 days of whenever the employer has changed the composition of the bargaining unit, 

wherever there is no collective bargaining agreement. Do you think these bills would impose a 

maximUlll waiting period when workers trigger an election? Of course not. \X'DF A requires, when 

the workers trigger an election to 'loW union representation, a minimum 35-daywaiting period before 

the election may occur. \Xihen employers trigger the election, the vote must happen fast. 'When 

workers trigger the election, the vote must be stalled. These bills ensure that, when the employer is 

not the party triggering the election, this pre-election time period is long enough for some serious 

employer campaigning. At least one study found that this period between petition and election is 

when employers are most likely to commit unfair labor practices. It's a critical period for 

unionbusting. 

But would a minimum of 35 days always be long enough for the employer to bust the tmion 

drive? If not, there are plenty. of other delays built into the bills. 'While current law aims to hold 

pre-election hearings on petitions within 8 days of the petition filing, both ERA and WDFA require 

a two-week waiting period before a pre-election hearing about the bargaining unit, voter eligibility, 

and other issues. After that initial delay, the bills diverge on their approaches to creating further 

needless delay. Under ERA, after the Regional Director issues his decision, the employer may 

appeal any or all of the decisions to the full National Labor Relations Board, and the Board must 

rule on ail of those appeals before the election may occur. By challenging one employee's eligibility 

to vote in the election - arguing, for example, against all reason that the employee is a supervisorwould provide months of delay for a high-paid unionbuster to kill the organizing drive ahead of the 

election. "lbis massive deby opportunity must be why ERA does not even bother with WDFA's 35-

day minimum waiting period. Meanwhile, under \X'DF A, more delay is built into the pre-election 

hearing itself by requiring the Regional Director and the Board not to just determine an appropriate 

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I 

I 

bargaining unit but the appropriate bargaining unit, a novel concept which will be discussed later in 

this testimony. Incidentally, it appears that under both bills, even if the union and the employer 

agree on every pre-election issue, the govemment must ·waste taxpayer money holding a hearing 

any;vay. (ERA is clearest about this requirement: "No election shall take place ... unless and 

until ... a hearing is conducted before a qualified hearing officer ... ") 

-·~ ···-· I If you're employees petitioning If you're an employer 

. for an election to win-a union ... triggering a· decertification 

election by altering a 

bargaining unit ... 

I Minim= Dcl'y R<qnmd At least 35 days from the date of None. 

, the petition. 

1 

Maximum Delay Permitted No limit. 30 days where there is no 

I 

I 

collective bargaining 

agreement; as little as fewer 

than 10 days where there is a 

collective bargaining 

I agreement, depending on how 

I soon the agreement expires. i 

Step Five: Gerrymander the voting districts. 

One of the most confounding complaints of anti-union forces in recent years i~ their 

concern about a 2011 case called Specialty Hea!thtare.2 ln that case, certified nursing assistants 

(CNAs) filed a petition for a union election at a nursing home. They asked for a bargaining unit of 

just CNAs - all 53 of them. But the operator had other ideas. The operator demanded that 33 

maintenance assistants, cooks, data entry clerks, business office clericals and receptionists be added 

to the bargaining unit. TI1c Board told the operator that it could not pack an otherwise appropriate 

bargaining unit with voters who were not asking for an election tmless the operator could show that 

there is an "overwhelming community of interest" between ail of these workers the employer wants 

to add to the unit and the petitioned-for unit. 'Ihe "overwhelming community of interest" language 

is drawn from a decision of three Republican-nominated judges on the D.C. Circuit Court of 

Appeals.' Seven other federal circuit courtS have upheld the Board's application of Specialty 

' 357 NLRB 934 (2011). 

'Bltw Mart Vegas, LLC v. NLRB, 529 P.3d 417 (D.C. Cir. 2008). 

7 

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Healthmre.' ~Ihese circuit courts have acknowledged that the Board's Speda!ty Healthmre standard is 

not a departure from its precedents, but simply a clarification. Therefore, the Speda!ty Healthcare 

decision is nothing radical, but simply stands for the proposition that an employer cannot displace 

the employees' petitioned-for tmit without showing that the employees it seeks to add to the tmit 

share an overwhelming commtmity of interest with those in the proposed tmit. 

Nevertheless, the ami-union groups have been screaming "micro-units" ever since the 

Board's 20l1 decisicm, That is, they-say that; thanks toSpedaity Health,"at~, tmions would petition to 

represent tiny units of workers, which would be a hassle for the employer to deal with. But would 

unions actually do that? Generally speaking, unions have little incentive to expend their limited 

resources on bargaining for countless "micro-units." Data has borne out that, in 2011, the year that 

"micro-unit" hell was tmleashed by the Board, the median size of bargaining units in NLRB 

elections was 26 employees. In 2016, after five years of Spetia!ty Heat/b,"are, the median size for 

bargaining units was still26 employees. 

So the "micro-tmit" nightmare is not grounded in reality. But was the fear of micro-units 

even genuine? 'Ihink about it. Unionbusters often tell employees that they don't need a tmion 

because they can cut their o·wn great deals with management, without a "third party'' involved. 

Would that not be an extreme version of micro-tmit hell, bargaining with thousands of micro-units 

consisting of one employee each at the same large employer? Yes, of course, it would be. Maybe 

the employer would even favor a single bargaining representative for efficiency's sake, if this 

individualized bm-gaining was a reality in a nonunion workplace. But it's not real. In the non-union 

workplace, very little bargaining, if any, takes place vtith any particular employee. Employees are 

expected to accept whatever the employer deigns to offer them and nothing more. If they don't like 

it, they can quit. 

So what's really behind the attack on Specialty Hea/thcare? The case limited an employer's 

ability to pack the voter rolls with workers who had hitherto no involvement in the union organizing 

drive. After all, workers petitioning for an election are likely to petition for a bargaining tmit 

consisting of workers who share a commtmity of interest from the outset - say, all the assembly line 

workers but not the warehouse workers with whom they rarely interact. It's to the employer's 

advantage, however, to be able to add groups of workers who do not closely share the organizing 

workers' interests and probably have not been involved in the organizing drive. As the \1\i'DFA lays 

out, "employees shall not be excluded from the unit unless the interests of the group seeking a 

separate unit are sufficiently distinct from those of other employees to warrant the establishment of 

4 See Kindred Nursing Ctrs. E., LLC v. NLRB, 727 FJd 552 (6th Cir. 2013) (enforcing the original 

Hea!thcare case); Constellation Brands, U.S. Operations, Inc: v, NLRB, S42 FJd 784 (2d Or. 

2016); NUIB v. f'edEx Fre~~ht, Im:, 832 FJd 432 (3d Or. 2016); Nestle Dreyer's J,~ Cream Co. v. NLRB, 

821 F.3d 489 (4th Cir. 2016);Mary:r, Jn,: tJ. NUW, 824 F.3d 557 (5th Or. 2016); FedExFreight, Ittc. v. 

NLRB, 839 FJd 636 (7th Cir. 2016); FedBx Freight, In,·. v. NUW, 816 FJd 515 (8th Cir. 2016). 

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a separate unit." 'I he WDFA puts the presumption in the voter-packing employer's favor and 

against the desires of the employees who undertook the petition in the first place. Again, this 

preference in favor of the employer is understandable once you accept that unionbusting, not 

employee self-determination, is the animating force behind these bills. 

Incidentally, let's not forget to read these bills as a whole. Thanks to the voter-packing rules 

in these bills, the employer will have added voters to the rolls that had no involvement in the 

organizing drive, did not want to be pa1t of a bargaining unit, and are not part of the-original-unit 

that the organizing employees sought. Thanks to the manipulation of the Excelsior Lists, under 

EPP A, the union may not find out who these voters are until shortly before the election- and 

certainly" not earlier than seven days" after the Board has defined the bargaining unit. And under 

ERA, the union may not find out who some of these voters are ... ever, thanks to supervisors 

pressuring the workers to opt out of the Excelsior list altogether. Great system! 

The WDFA does provide for one instance in which smaller units are favored: when a union 

seeks to accrete additional employees to an existing unionized bargaining unit. The WDFA is very 

clear about this double standard: "Whether additional employees should be included in a proposed 

unit shall be determined based on whether such additional employees and proposed unit members 

share a sufficient community of interest, with the sole exception of proposed accretions to an 

existing unit, in which the inclusion of additional employees shall be based on whether such 

additional employees and existing unit members share an overwhelming corrununity of interest and 

the additional employees have little or no separate identity." In other words, small unionized units 

are bad, and making a small unionized tmit a bigger unionized unit is also bad. 

For anyone who is confused at this point by these bills' efforts to address Specialty Healthcare, 

here's a table to help decipher: 

' Arrangement 

rmcro unit" of all 53 certified nursing 

assistants at a nursing home getting a union 

Desirability for WDFA 

Too small! 

r-once unionized, a "micro-unit"-ofall certified -l>t"o-o'b-;-ig-;1----------------i 

· nursing assistants at a nursing home that seeks tol! 

become a bigger unit 

: 159 million micro units consisting of one I JUst right! 

: employee each, without a union l ___ _j __ ------·----------_1 

Per these bills, no matter what size the bargaining unit is, if it's unionized, it's not the right 

size! 

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Step Six: Play a Gotcha Game so Employers Have Carte Blanche to Undermine 

Elections 

ERA includes new penalty provisions in the NLRA directed at unions. If a union is found 

to have intetfered with, restrained, or coerced employees in the exercise of their Section 7 rights or 

to join a union or refrain from joining a union, the union is liable for wages lost and union dues or 

fees collected unlawfully as well as an unspecified "additional amount as liquidated damages." It's 

unclear what problem this provision seeks to solve .. The. last year for which the NI.RB issued 

statistical data on the types of unfair labor practices filed shows that there were 10 times as many 

formal actions taken for charges filed against employers as against labor organizations. 5 But despite 

the far higher likelihood that an employer commits an unfair labor practice than a labor organization 

does, ERA does not seek liquidated damages from employers. 

ERA also plays a game of gotcha >V'ith unions: Any union "found to have [committed an 

8(b)(l) violation] in connection with the filing of a decertification petition shall be prohibited from 

filing objections to an dection held pursuant to such petition." In other words, once a shop steward 

or union activist makes any mistake during a decertification drive, the employer is given carte 

blanche to render the decertification election as unfair as possible, and the union cannot object to 

the unfair conditions. So the point of this provision is not to ensure a fair election. After all, most 

unfair labor practices are committed by employers - but ERA does not strip employers of their right 

to object to tmfair election conditions simply because the employer itself has committed unfair labor 

practices. A> with all the previous provisions, the point of this penalty provision is to help 

employers eliminate unions. 

Step Seven: Drain Union Treasuries 

ERA cont<ins a number of amendments to the Labor Management and Disclosure Act 

(LMRDA} designed to simply drain union treasuries. 

First, ERA requires all internal union elections - such as for union officers, setting dues, 

authorizing strikes, or ratifying contracts - to be conducted "in the privacy of a voting booth." This 

might sound innocuous to the average person. But here's the problem: any particular local union or 

bargaining unit may have members scattered over very wide geographic areas. Depending on the 

situation, the only feasible, affordable, franchising way to conduct an election is by mail ballot- or 

in some cases via internet or telephonic voting. But the phrase "in the privacy of a voting booth" 

appears to specifically prevent anything other than in-person voting. The end result will be to either 

force unions to conduct elections in multiple physical places at once, with all of the election judges 

and observers present at each polling location, or simply clisenfranchise geographically dispersed 

members. A single bargaining unit may have members scattered in locations v,~th just a couple 

employees across many states. After a few elections, a geographically clispersed local muon or 

5 FY2010 NLRB Annual Report. 

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bargaining unit won't have much resources left to fight for its members, which is the point of this 

provision. 

Second, ERA really does not want an organization of working people to be free to engage in 

their communities the way, say, a business organization would be free to engage in its corrununity. 

In the United States, you can join any organization you want and pay dues however you want and 

expect that the law won't require you to constantly give consent about how those dues are to be 

spent. ButERA tolerates the freedom of association only so much, Under ERA; .if you are a100% 

committed union member and union supporter, enthusiastically paying dues, attending union 

meetings, or even becoming union president, ERA requires you to give consent in writing every year 

for your organization to use your dues for anything "not directly related to the labor organization's 

collective bargaining or contract administration functions." ERA. calls this provision "Right Not to 

Subsidize Union Non" Representational Activities." Now, such a right already exists under current 

law. Under current law, no one is required to join a union or pay union dues. In so"called righHo" 

work states, a nonmember bargaining unit employee does not have to pay a cent to the union, even 

though the union must represent him. And in freedom-of" contract, fair"share states, a nonmember 

bargaining unit employee may be required to pay an agency fee to cover the costs of representing 

him but has the right to object to any portion of that fee paying for anything not "germane" to the 

union's duties as bargaining agent. Under ERA, however, a union member already paying dues 

would be required to give annual consent- after 35 days written notice each year- for the union to 

use any portion of that member's dues (already sitting in the union treasury) for say, a voter 

registration drive or sponsoring a Little League team So this provision does not actually create a 

"Right Not to Subsidize Union Non-Representational Activities," it restricts and burdens the right 

to do so. A.nd while current law allows agency fee objectors to make a "continuing objection" that 

does not have to be renewed each year and permanently restricts his fees from being used for 

anything non" germane to collective bargaining, ERA prohibits the same automatic renewal of a 

member's consent for the union to use his dues for non-germane activities. Obtaining this consent 

annually from every full blown union member in good standing is an expense in and of itself. 

Someone really does not want unions involved in politics or their communities. 

Third, ERA would require unions to conduct, at their own expense, contract ratification 

votes which they may otherwise not have any reason to conduct. Under ERA; if a union wants to 

conduct a strike authorization vote, it must first conduct a ratification vote on any outstanding 

proposed collective bargaining agreement from the employer. T11e union may know- or at least 

have veJ:Y strong reasons to believe - that its members would vote down the particular proposal, 

which is why the strike vote is necessary in the first place; yet ERA would require the pointless 

ratification vote in the privacy of a voting both - for every member and nonmember employee in 

the bargaining unit (more on tl1at later). 

Founh, ERA would not allow this contract ratification vote and the strike authorization vote 

to be conducted bytl1e union- something that unions are very capable of doing. Instead, ERA 

would require the union to contract 1vith a private third party to conduct these elections. Moreover, 

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the employer must agree on who that private third party is, even though the union alone must pay 

for the entire undertaking. Would an employer hellbent on busting the union agree to an affordable 

third party- or one that v,'ill drain the union coffers? There's a business opportunity in ERA for 

starting an overpriced election services company. 

Fifth, ERA apparently creates an obligation for every labor organization to conduct an 

"independentlyvetified annual audit of the labor organi7Ation's financial condition and operations." 

Unions already provide extensive financial reporting, their officers are bound by fiduciary duties, 

their officers must be bonded, and their entire governance is subject to democratic elections. While 

it's obviously a good practice to utilize an independent auditor, not every local union can afford this 

cost. Typically, a local union with extremely limited resources will appoint a finance committee of 

members to conduct an audit of its books. It is not independently verified, but it is the best a small 

union can do. ERA has found yet another way to force a union to spend its resources on something 

other than smartly advancing workers' interests. It is a wonder the bill's authors did not require the 

employer to consent to which auditing company the union may use. 

Step Eight: Take control of the union away from dues-paying union members (so 

maybe they'll stop paying dues) 

Recall that ERA strips Lmion members of their right to freely subsidize their union's 

activities without annual government interference. The flip side of that coin is that ERA gives 

nonmembers new rights over the members' union. 

Under ERA, nonmembers would be granted the same rights as members to vote on contract 

ratifications and strike authorizations. This provision is an entirely new level of free-riding. In a socalled right-to-work state, nonmembers would pay zero for the services of the union and be entitled 

to participate in the union's ultimate decisionmaking. The bill authors know that having a say in 

contract ratification is one of the strongest incentives to join the tmion for some workers. So getting 

that say for free will reduce the chances a particular worker will become a member. 

Furthermore, strikes are a big deaL Members are expected to honor picket lines. Members 

who cross picket lines may be fined. Nonmembers cannot be fined. They can scab without 

consequence. So, imagine a strike authorization vote in which nonmembers join some number of 

members to vote for a strike. The strike is called. The members must honor the picket lines, while 

the nonmembers who forced them to strike may scab. Then, when a possible contract is reached 

and sent out for ratification, the nonmembers can vote to reject the contract, prolonging the strike 

for members while the nonmembers have been collecting a paycheck all along. The nonmembers 

may want the strike to continue to force the company to improve a provision or two, or because 

they are financially benefiting from the overtime during the strilre. After all, it's no skin off the 

nonmembers' back to prolong the strike, as the members are the only ones who must honor the 

picket lines. 

Union members have contributed and obligated themselves in ways which correctly give 

them the exclusive right to vote on contract ratifications and su1ke authorizations. Nonmembers 

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have not earned such a right. This provision undermines the very concept of a union. It is also an 

assault on the constitutionally-protected associational rights of the union members. 

Under ERA, it's not just nonmember employees who obtain inappropriate power over a 

union's internal affairs. The employer is also granted a ridiculous say over the union. As noted 

earlier, a union cannot call a strike authorization vote unless the employer has agreed on what 

private third party will conduct the vote. 111is employer consent requirement would give the 

employer veto power over when and whether a strike-vote happens. The strike is-the ultimate 

economic weapon of a union in collective bargain.ing. The timing of a strike vote is an internal 

strategic decision of the union. ERA would eliminate the union's prerogative on this issue and 

eviscerate the right to strike. 

Step Nine: Create a One-Sided Federal Crime Targeting Union Supporters and Fail 

to Deter Violence by Employers and their Agents 

ERA adds a new criminal provision to the LMRDA: "It shall be unlawful for any person, 

through the use of force or violence, or threat of the use of force or violence, to restrain, coerce, or 

intimidate, or attempt to restrain, coerce, or intimidate any person for the putpose of obtaining from 

any person any right to represent employees or any compensation or other term or condition of 

employment." A. person found guilty of this provision shall be fined up to $100,000 or imprisoned 

up to 10 years or both. 

Let's be cbr about the target of this provision: unions. It is unions that seek the right to 

represent employees or seek tenns or conditions of employment in the course of collective 

bargaining or a strike. Of course, it is old hat to talk of violent union "goons." During a strike, 

however, especially when emotions run highest, unions have strong incentives to maintain 

nonviolence and tamp down any violent-sounding rhetoric. Set aside that violence and threats of 

violence are already illegal and criminally prosecuted under state law. The slightest mistake on the 

picket line \\rill land the union in a county court v.ithin hours, where a judge may enjoin the picket 

lines, rendering the strike ineffective. 

Managers and replacement workers are not covered by this ERA provision. Yet managers 

and replacement workers have been found engaging in violent, physically threatening, or verbally 

threatening behavior near picket lines. In fact, CWAers wear red on Thursdays to commemorate a 

member who was killed on a picket line when a manager's daughter broke through a picket line with 

a car and stmck him. Sometimes this replacement worker or manager behavior is used to bait 

picketers into responding, perhaps in hopes of obtaining an injunction against the picket lines. And 

now this behavior can be used to bait picketers into responding so that strikers will spend 10 years 

in jail. This lopsided provision renders strikers even more vulnerable to violence or threats of 

violence. 

Finally, ERA includes a provision that would apply the Hobbs Act - a federal criminal law 

outlawing extortion- to unions' legitimate objectives. In U.S. v. Enmons, the Supreme Court 

exempted unions pursuing legitimate objectives from the Hobbs Act. It did so for good reason: the 

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Hobbs Act broadly defines extortion as inducing a victim to give up property wrongfully using 

reasonable fear of physical injury or economic harm in a way that actually or potentially affects 

interstate commerce. Consider a strike. It has a legitimate objective: a collective bargaining 

agreement. That collective bargaining agreement, however, may involve the employer paying more 

in wages and benefits to employees than it otherwise would (giving up property). An economic 

strike or threat of an economic strike may be intended to make the employer afraid of economic 

harm, if not experience economic harm. .1\nd a strike is nearly always going to affect interstate 

commerce. But becausdederallaw gives unions the right to strike, the Supreme Court found that 

the use of reasonable fear of economic harm could not be "v.-Tongful" when a union was pursuing 

legitimate objectives. By specifically stating that the lawfulness of a union's objective shall not 

remove or exempt its conduct from the definition of extortion, ERA potentially turns otherwise 

lawful mikes into federal crimes and weakens unions' ability to win higher wages, better benefits, 

and improved working conditions for workers. 

W'hile these three bills are relatively short, they are packed with malicious intent. Their goal 

is to weaken or eliminate unions, full stop. I've attempted to explain the how. The more interesting 

question is: 

Why? 

\Xi11y would anyune want to weaken or eliminate tmions altogether from the American 

landscape? These bills are part and parcel of a coordinated assault by wealthy interests on workers' 

rights around the country, here in Congress, in state houses,and in the courts. Why the attack? 

Is it because unions allow Vlorkers to exercise their real bargaining strength so that they may 

insist on their fair share of the wealth they help create, raising wages, obtaining benefits, protecting 

health and safety? 

Is it because unions are an effective and organized voice for workers' interests in the political 

and legislative realm, winning or helping win rninimtun wage increases, health and safety laws, paid 

leave, civil rights protections, and so on? 

Is it because super wealthy interests have ideological dreams of cutting taxes on the rich, 

eliminating regulatory protections for working people, and eliminating any safety net- and unions 

tend to stand in the way of that dystopia? 

I urge the subcommittee to reject these bills. Thank you for the opportunity to testify. 

14 
42 

Chairman WALBERG. I thank the gentleman. 

And I recognize Mr. Borden for your five minutes of testimony. 

STATEMENT OF SETH H. BORDEN, PARTNER, MCGUIREWOODS 

LLP, NEW YORK, NEW YORK 

Mr. BORDEN. Good morning, Chairman Walberg, Ranking Member Sablan, and distinguished members of the subcommittee. It is 

a great honor and privilege to appear before you today. 

I want to echo the sentiments of the rest of the panelists and indeed some of you. My family will keep you all and your colleagues 

in our thoughts and prayers as we go forward. 

My name is Seth Borden. I’m a partner in the New York office 

of the law firm McGuireWoods. I’m not appearing today on behalf 

of any clients however, and my testimony does not necessarily reflect the views of McGuireWoods or any of my colleagues. 

I’ve been practicing traditional labor and employment law for 19 

years, representing employers of all types and sizes in a variety of 

industries across the United States before the National Labor Relations Board. A copy of my firm bio is provided with the written 

version of my testimony. 

The Board’s final rules, effective April 2015, overhauling representation election procedures and the Board’s 2011 decision in 

Specialty Healthcare cast aside standards and procedures that had 

worked for decades. To turn a phrase, the Board sought to fix 

something that wasn’t broke in an effort to facilitate private sector 

union organizing. 

Passage of H.R. 2776, the Workforce Democracy and Fairness Act, 

and H.R. 2775, the Employee Privacy Protection Act, will be a significant step forward to reversing these unnecessary and misguided 

policy changes and restoring the proper balance of rights and interests that had worked sufficiently for most of the Board’s history. 

The Board’s 2015 rule all but eliminated pre-election resolution 

of very significant legal issues, like eligibility and unit inclusion, 

deferring litigation until after the election. In addition, the Board 

implemented new time targets, reducing the pre-election period 

during which employees can learn and contemplate their decision 

to as few as 13 days. 

These changes limit employer free speech protected by Section 

8(c) of the National Labor Relations Act and infringe on the section 

7 rights of employees to refrain from union activity. Postponing resolution of important legal issues until after an election only serves 

to enhance union electoral success by leveraging employer uncertainty and risk. 

H.R. 2776 would restore the pre-election hearing process. It will 

require a hearing absent agreement of the parties, provide time for 

the parties to prepare, and allow for the creation of a complete evidentiary record on all relevant and material issues expected to impact the outcome of the election. 

The Board’s 2011 Specialty Healthcare decision announced a new 

standard for determining whether a bargaining unit proposed by a 

petitioning union is appropriate. It cast aside presumptions which 

were the result of decades of practical experience in case law development and opened the door to so-called microunit organizing, 

whereby unions are the ones that can gerrymander a larger workEDL-011-D with DISTILLER

43 

force and cherry-pick smaller units best suited to organizing success. 

Potential proliferation of microunits within a single workplace 

does not promote but rather threatens industrial peace and stability. It’s all but certain to restrict an employer’s ability to meet 

operational demands by efficient, flexible staffing, limit cross training and promotional opportunities, and lead to higher customer 

prices and budget pressures. 

H.R. 2776 would reverse this misguided policy direction and restore the Board’s traditional community of interest analysis. It 

would provide additional stability and mitigate the ability of future 

boards to misuse newly announced standards by expressly incorporating these traditional factors into the body of the statute. 

These standards are far more consistent with the express terms 

and intent of the NLRA and had effectively met expectations for 

decades. 

The Board’s 2015 rule also forces the employer to turn over extensive personal employee contact information. Now, within two 

days after direction of an election, the employer is now required to 

turn over the eligible voters’ names and mailing addresses as well 

as all available personal email addresses and all available home 

and personal cell phone numbers. 

These requirements needlessly violate the section 7 rights of employees to refrain from union activity and the expectation of privacy employees have when providing personal contact information 

to their employers. More importantly, these days, no one is immune from the risks of hacking, phishing attacks, and identity 

theft, all of which increase with the volume of unwanted email or 

text messages directed at employees. Finally, many employers simply do not have all of the required information in one location or 

in a single common format for compiling and emailing in a two-day 

timeframe. 

H.R. 2775 will restore the seven-day timeframe for the careful 

compilation and transmittal of employee information to the Board, 

which worked sufficiently for nearly 50 years. Moreover, it would 

afford employees the choice of which method of contact each would 

prefer. This puts the choice of showing interest and sharing private 

contact information in the hands of the employees, where the statute would place it. 

For all these reasons, the subcommittee should move expeditiously to passage of H.R. 2776 and 2775 to fundamentally correct 

the unnecessary and misguided direction of the last six years. I 

look forward to your questions. 

[The statement of Mr. Borden follows:] 

EDL-011-D with DISTILLER

44 

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SETH H. BORDEN, PARTNER, McGUIREWOODS LLP 

STATEMENT TO THE RECORD 

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

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

H.R. 2723, Employee Rights Act." 

U.S. Honse Committee on Education and the Workforce 

Health, Education, Labor & Pensions Subcommittee 

June 14,2017-10:15 a.m. 

Good morning, Chairman Walberg, Ranking Member Sablan and distinguished Members 

of the Subcommittee. It is a great honor and privilege to appear before this Subcommittee as a 

witness. My name is Seth Borden. I am a partner in the New York office of the law firm 

McGuire Woods LLP. 

My testimony today should not be construed as legal advice as to any specific facts or 

circumstances. I am not appearing today on behalf of any clients. My testimony is based on my 

own personal views and does not necessarily reflect those of McGuire Woods or any of my 

individual colleagues there. 
45 

EDL-011-D with DISTILLER


I have been practicing traditional labor and employment law for 19 years. During that 

time, I have represented employers of all types and sizes, in a variety of industries, throughout 

the United States and Puerto Rico before the National Labor Relations Board ("the Board" or 

"NLRB"). In 2010, I authored a chapter regarding new technologies and traditional labor law in 

the Thompson publication Think Before You Click: Strategies for Managing Social Media in the 

Workplace, the first treatise of its kind. Finally, since 2008, my team and I have maintained the 

Labor Relations Today blog, which has received numerous accolades and has been archived by 

the U.S. Library of Congress. A copy of my firm bio is provided with the written version of my 

testimony. 

Mr. Chairman, l request that the entirety of my written testimony, and the attachments 

thereto, be entered into the record of the hearing. 

In December 2014, the National Labor Relations Board announced a Final Rule, 

implemented in April 2015 ("2015 Rule"), effecting a sweeping overhaul of its longstanding 

representation election procedures. These changes were designed purely to facilitate private 

sector union organizing. They followed soon after the Board's decision in Specialty Healthcare, 

357 NLRB 934 (2011), which established new unit definition criteria by which unions have 

sought to organize "micro-units''- smaller, gerrymandered groups of employees within a larger 

workplace. These actions by the Board cast aside standards and procedures that had operated for 

decades without significant complaint. To turn the phrase- the Board here sought to "fix" what 

was never "broke." Passage of H.R. 2776, the Workforce Democracy and Fairness Act; and, 

H.R. 2775, the Employee Privacy Protection Act, would be a significant step toward reversing 

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these unnecessary and misguided policy changes, and restoring the proper balance of rights and 

interests that had worked sufficiently for decades. 

Workforce Democracy and Fairness Act (H.R. 2776) 

A. Restoring Pre-Election Due Process and Free Speech Rights 

The Board's 2015 Rule altering the procedures around elections significantly limits the 

time available to an employer to communicate with its employees in advance of a Board run 

representation election. In its effort to drastically abbreviate the time between the filing of a 

petition and the conduct of an election, the Board all but eliminated pre-election resolution of 

significant eligibility, unit inclusion, and other important legal issues, deferring their litigation 

until after the election. In addition, the Board implemented new time targets, reducing the preelection period during which the employees may learn about and contemplate their decision to as 

few as 13 days, down from a fairly consistent annual median of 38-39 days. 

The changes in the 2015 Rule changes were, at best, a proposed solution in search of a 

problem. To the extent they were intended simply to increase union success in organizing, they 

did so by limiting employer free speech rights protected by Section 8(c) of the National Labor 

Relations Act ("the Act" or "NLRA''), and infringing on the Section 7 rights of employees to 

refrain from union representation. Postponing resolution of important legal issues until after an 

election only serves to enhance union electoral success by allowing them to leverage employer 

uncertainty and risk. Take, for example, the issue of whether an individual or group of 

individuals are "employees'' covered by the NLRA or rather "supervisors" exempted by Section 

2( 11 ). How is an employer to communicate lawfully with these purported supervisors without 

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knowing whether or not the Board will ultimately find them to be covered or exempt? The 

employer's choice is either (a) to decline to communicate with these individuals to the maximum 

extent allowed, and thereby deny these workers, and the workers they supervise, the fullest array 

of information and discourse protected by Section 7 of the Act; or (b) to risk potentially unlawful 

communications with them which could have the consequence of overturning the results of an 

election. It is the lack of certainty at the outset of the process that creates these untenable options 

- all of which create legal exposure for the best-intentioned employers and infringe upon the 

rights of the employees to seek a prompt, conclusive determination on the issue of 

representation. 

Section 2 of the Workforce Democracy and Fairness Act would restore the pre-election 

hearing process. This would allow a robust opportunity for early resolution of issues with the 

potential to impact the election process. This bill would, among other things, require a hearing 

absent agreement of the parties; provide at least 14 days following the filing of the petition to 

prepare; and, allow for the creation of a complete evidentiary record on any relevant and material 

pre-election issues which might reasonably be expected to impact the outcome of the election. 

This 14 day time period should be sufficient to permit employers particularly small businesses 

who may not enjoy the luxury of counsel with subject-matter expertise - to obtain the proper 

representation and guidance; to properly explore whatever pressing legal issues may exist; and, 

to present those issues and all relevant evidentiary support at a hearing aimed at resolving any 

that might impact the parties' conduct during the time period up to and including the election. 

Moreover, it would require a period of at least 35 days between the filing of the petition 

and the holding of the election. All parties can benefit from an efficient determination process, 

without unnecessary delay. But the rights of employees to seek union representation and the 

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equal rights of employees to refrain from such representation must be properly balanced. For 

decades the Board ensured that employees had sufficient time to make this important decision in 

a fully informed manner. This bill's 35-day minimum provision will not ensure the same 

timeframe that worked suitably for decades prior to April 2015, but it goes a long way to 

restoring the appropriate balance between all interests involved. 

B. Enhancing Stability and Certainty in Unit Composition 

Another effort to facilitate union organizing, the Board's Specialty Healthcare decision, 

357 NLRB 934 (20 ll), announced new standards for determining whether the bargaining unit 

proposed by a petitioning union is appropriate. This Board decision casually cast aside 

presumptions which were the result of decades of practical experience and ease law 

development, and opened the door to so-called "micro-unit" organizing, whereby unions can 

gerrymander a large workforce and cherry-pick small units best suited to organizing success. 

Section 9(b) of the NLRA provides that 

[t]he Board shall decide in each case whether, in order to assure to 

employees the fullest freedom in exercising the rights guaranteed 

by this subchapter, the unit appropriate for purposes of collectivebargaining shall be the employer unit, craft unit, plant unit, or 

subdivision thereof. 

29 U.S.C. § 159 (b). 

For decades prior to 2011, the Board satisfied this statutory obligation by analyzing a 

number of factors to determine whether the employees in a petitioned-for unit shared a sufficient 

"community of interest" to make their representation in a single bargaining unit reasonable and 

effective. The factors that the Board generally considered in unit determinations included: 

whether the employees are organized into a separate department; 

have distinct skills and training; have distinct job functions and 

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perform distinct work, including inquiry into the amount and type 

of job overlap between classifications; are functionally integrated 

with the Employer's other employees; have frequent contact with 

other employees; interchange with other employees; have distinct 

terms and conditions of employment; and are separately 

supervised. 

Specialty Healthcare, 357 NLRB at 942, quoting United Operations, Inc., 338 NLRB 123 

(2002). In 1989, the Board engaged in formal rulemaking to set forth an industry-specific 

exception to this traditional approach, and promulgated specific rules for the determination of 

appropriate units in acute care hospitals. See 29 CFR § 1 03.30; American Hospital Ass 'n v. 

NLRB, 499 U.S. 606 (1991). Following implementation of this rule, the Board sought in Park 

Manor Care Center, 305 NLRB 872 (1991), to clarify and differentiate its standards for 

determining units in non-acute health care facilities. The decision added a few industry-specific 

factors to be considered, in addition to the traditional community of interest factors, when 

considering units in these facilities. 305 NLRB at 877. 

Specialty Healthcare involved just such a non-acute care facility. The employer 

challenged the bargaining unit proposed by the union, and.before the Board, the employer simply 

argued that the Regional Director had failed to properly apply the Park Manor standard. Both 

parties - the employer and the union agreed that Park Manor standard was the controlling 

principle in the case. Specialty Healthcare, 356 NLRB 289, 292-294 (2010). (Hayes, B., 

dissenting). Nevertheless, the Board unilaterally sought briefing on whether or not Park Manor 

should be overruled in connection with unit determinations in non-acute healthcare facilities. !d. 

at 289. 

The resulting decision discarded entirely the Park Manor analysis for determining units 

in non-acute healthcare facilities, and announced a new standard: where the employees in the 

petitioned-for unit are a readily identifiable group who share a community of interest, they 

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constitute a statutorily appropriate unit unless it can be demonstrated that other excluded 

employees share an "overwhelming community of interest" with the petitioned-for group. 

Specialty lfealthcare, 357 NLRB at 947. 

This new standard reflects a drastic departure from the traditional standard employed by 

the Board for decades. In 2010, the Board itself explained its historical approach thus: 

the Board's inquiry "never addresses, solely and in isolation, the 

question whether the employees in the unit sought have interests in 

common with one another. Numerous groups of employees fairly 

can be said to possess employment conditions or interests 'in 

common.' Our inquiry-though perhaps not articulated in every 

case-necessarily proceeds to a further determination whether the 

interests of the group sought are sufficiently distinct from those of 

other employees to warrant the establishment of a separate unit." 

Wheeling Island Gaming, Inc., 355 N.L.R.B. 637, at n.2 (2010) quoting Newton-Wellesley 

Hospital, 250 NLRB 409,411-412 (1980). See also, Swift & Co., 129 N.L.R.B. 1391 (1961); 

US. Steel Corp., 192 N.L.R.B. 58 (1971); Publix Super Markets, Inc., 343 N.L.R.B. 1023 

(2004); Casino Aztar, 349 N.L.R.B. 603 (2007). 

Yet just one year later, without any explanation of a compelling need, in a case where 

neither party requested or argued for it, the Board announced a new standard under which any 

"readily identifiable group" proposed by the petitioning union will be deemed appropriate unless 

the employer satisfies a new significant burden- proving there is an "overwhelming community 

of interest" between that group and any excluded employees. Specialty lfealthcare, 357 NLRB at 

947 (emphasis supplied). 

This course of conduct would be troubling and problematic in itself, had the Board 

genuinely sought to limit the impact of its decision. The conclusion of the Specialty Healthcare 

projected limited effect: 

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I d. 

(I) We overrule one decision, Park Manor, which had created a 

unique test for unit determinations in nonacute health care facilities 

(the "pragmatic or empirical community of interests" test). 

(2) We hold that the traditional community of interest test-to 

which we adhere-will apply as the starting point for unit 

determinations in all cases not governed by the Board's Health 

Care Rule (including cases formerly controlled by Park Manor) 

An August 30, 2011 NLRB press release entitled "Board issues decision on appropriate 

units in non-acute health care facilities," likewise sought to convince observers that the impact of 

the decision was limited to one particular type of operation in one particular industry: 

In a decision made public today, the National Labor Relations 

Board has adopted a new approach for determining what 

constitutes an appropriate bargaining unit in health care facilities 

other than acute care hospitals (which are covered by the Board's 

Health Care Rule). 

In addition, the Board clarified the criteria used in cases where a 

party argues that a proposed bargaining unit is inappropriate 

because it excludes certain employees. The Board did not create 

new criteria (or determining appropriate bargaining units outside 

of health care facilities. 

NLRB Press Release, August 30, 2011, https://www.nlrb.gov/news-outreach/news-story/boardissues-decision-appropriate-units-non-acute-health-care-facilities, last accessed June 11, 2017 

(emphasis supplied). 

These proclamations were inaccurate at best. Since issuance of the Specialty Healthcare 

decision, the National Labor Relations Board has applied the new standard in a wide variety of 

industrial settings beyond non-acute healthcare facilities. See, e.g., First Aviation Services -

Teterboro, NLRB Case No. 22-RC-061300 (private aviation services); Odwalla, Inc., 357 NLRB 

1608 (2011) (beverage manufacturing); T-Mobile USA, Inc., NLRB Case No. 29-RC-012063 

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(telecommunications); DTG Operations, 357 NLRB 2122 (2011) (car rental); Bread of Life, LLC 

dba Panera Bread, NLRB Case No. 07-RC-072022 (bakery); Nestle Dreyer's Ice Cream, NLRB 

Case No. 31-RC-066625 (ice cream manufacturing); Volkswagen Group of America, Inc., Case 

No. 10-RC-162530 (auto manufacturing); Constellation Brands, U.S. Operations, Inc., dlb/a 

Woodbridge Winery, NLRB Case No. 32-RC-135779 (winery); Northrop Grumman Systems 

Corp., NLRB Case No. 31-RC-136471 (military equipment); see also, U.S. Chamber of 

Commerce, Trouble With The Truth: Specialty Healthcare and the Spread of Micro-Unions 

(October 31, 2016). In a fairly well-known case challenging the application of Specialty 

Healthcare outside the non-acute healthcare industry, the retailer Macy's is challenging the 

Board's approval of a micro-unit consisting only of the 41 cosmetic and fragrance salespersons 

working at a store in Saugus, Massachusetts, and excluding over a hundred other salespersons 

working in the various other departments throughout the store. 361 NLRB No.4 (2014). In its 

decision, the Board expressly confirmed that Specialty Healthcare would indeed trump the 

longstanding retail industry presumption in favor of store-wide bargaining units. !d. at 16. 

The proliferation of micro-units within a workplace threaten the very thing the National 

Labor Relations Act is intended to promote industrial peace and stability. In the dissent from 

the Court's denial of Macy's petition for a rehearing en bane, Judge Jolly of the Fitih Circuit 

Court of Appeals explained: 

Peaee and stability are weakened by the balkanization of 

bargaining units in a single, coordinated workplace. NLRB v. R. C. 

Can Co., 328 F.2d 974, 978-79 (5th Cir. 1964). In this case, the 

NLRB sacrificed considerations of promoting labor peace by using 

a rationale that approved a small, carved-out bargaining unit that 

contains no real limiting principle in future cases. For example, 

nothing in the NLRB's rationale prevents a dozen micro-units 

within a retail store's salesforce-all fraught with mini-bargaining 

at multiple times and the possibility of disputes and mini-strikes 

occurring continually over the working year. One is led to assume, 

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as the amici suggest, that three bowtie salesman would be an 

appropriate bargaining unit if they sold bowties at a separate 

counter from other merchandise. So much for promoting labor 

peace and stability. 

lvfacy's Inc. v. Nat'/ Labor Relations Bd., No. 15-60022, 2016, at *2 (5th Cir., November 18, 

2016)(Jolly, J., dissenting). 

Moreover, the presence of multiple distinct bargaining units within a single facility is all 

but certain to greatly limit an employer's ability to meet operational demands via efficient, 

flexible stalling. Contract provisions limiting performance of so-called "unit work'' by non-unit 

personnel are commonplace in collective-bargaining, and tend to limit cross-training, utilization, 

scheduling flexibility and promotional opportunities. In turn. these additional inefficiencies and 

inflexibility will lead to higher customer prices and budgetary pressures before factoring in the 

additional economic cost of more complex bargaining, grievance resolution, management 

training and legal assistance. 

Section 3 of the Workforce Democracy and Fairness Act would reverse the misguided 

policy direction of the Board's 2011 Specialty Healthcare decision, by restoring the Board's 

traditional standards for determining whether a unit is appropriate for bargaining. This bill would 

provide additional stability and mitigate the ability of future Boards to abuse newly announced 

standards by expressly incorporating the "community of interest" factors into the body of the 

statute. Finally, it would avoid "proliferation or fragmentation of bargaining units" by restoring 

the traditional principle of ensuring employees are not excluded from a unit unless their interests 

are "sufficiently distinct" to warrant a separate unit. These standards are far more consistent 

with the express terms and intent of the National Labor Relations Act and effectively met 

expectations for decades. 

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Employee Privacy Protection Act (H.R. 2775) 

The Board's 2015 Rule also forces the employer to turn over personal employee contact 

information, placing employee privacy at risk. For nearly five decades, employers were subject 

to the same set of post-petition obligations to provide the petitioning union with employee 

contact information. Excelsior Undenvear, 156 NLRB 1236 (1966). Within seven (7) days after 

the Direction of Election, the employer was obligated to provide the Board with a list of all 

eligible voters, including for each a home address to allow for union outreach to the voters. The 

April 2015 rule changes shrank the employer's response time to just two days, required the 

employer to send the required employee contact information directly to the union, and expanded 

exponentially the amount of information the employer is forced to turn over - to include all 

"available personal email addresses, and available home and personal cell telephone 

numbers." 29 CFR §102.67(1) (emphasis supplied). 

These rule changes needlessly upset a delicate balance of employee rights during union 

organizing efforts which had been working for nearly fifty years. An oft-cited quote by Justice 

Brandeis proclaims that the "right to be let alone" is "the most comprehensive of rights and the 

right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) 

(Brandeis, J., dissenting). More specifically, Section 7 of the NLRA protects not only the right of 

each employee "to form, join, or assist labor organizations, [and] to bargain collectively through 

representatives of their own choosing," but also the right of each employee "to refrain from any 

or all of such activities .... " 29 U.S.C. §157. For almost fifty years, the Board struck a particular 

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balance between these important employee privacy and Section 7 rights. And notably, during the 

rulemaking process which gave rise to the 2015 overhaul, the Board failed to cite any evidence 

that the longstanding Excelsior list requirement was not working. 

Employees who provide alternative contact information to their employers do so for 

specific, discrete operational reasons - e.g., to receive information about scheduling changes, 

emergency contact messages, etc. They do so with some expectation that their employer will 

hold such information for these specific, discrete operational reasons and not to publicize, sell 

or share the information with outside organizations for other purposes. 

More importantly, these new eligibility list requirements have put employee privacy at 

risk. The Board's final rule included the vague and tepid warning: 

[P]arties shall not use the list for purposes other than the 

representation proceeding, Board proceedings arising from it, and 

related matters. 

29 CFR § 1 02.67(1). But despite numerous comments seeking assurances about enforcement of 

this provision, the Board declined to include any specific mechanisms to protect against abuse. 

The more significant risks, however, go far beyond the prospect that a union might intentionally 

misuse this employee personal contact information. Nowadays, no one is immune from the 

dangers of data piracy. The risks of falling victim to hacking, ''phishing" attacks, and/or identity 

theft are all increased by the volume of unwanted email or text message engagement directed at 

employees. Nothing in the rule dictates what measures should be taken to protect this 

information for example, whether it might be stored on secured networks only, or whether it 

must be destroyed upon resolution of the petition, etc. The Board glossed over all these very real 

concerns. In sum, it acknowledged there were employee privacy risks exacerbated by the new 

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rules, but simply concluded that the increased ability of unions to communicate their campaign 

message to the employees outweighed the risks to individual employees. 

Compressing the time within which an employer has to assemble and transmit all of this 

employee contact information from seven (7) to two (2) days has unnecessarily complicated the 

early stages of the election process. Many employers simply do not have all of the required 

information in one centralized location, or in a single common format for simply compiling and 

e-mailing. Dedicated legal and/or human resources staff- to the extent an employer has it-- will 

likely have been heavily occupied with the other important practical and legal considerations, 

some described above, required on a compressed timetable by the 2015 Rule. 

The most significant problems with this new standard are perhaps illustrated by the 

Regional Director's Decision and Direction of Second Election in the Danbury Hospital case, 

NLRB Case No. 01-RC-153086 (October 16, 2015). On June 19,2015, the Board conducted an 

election among a unit of 866 eligible voters. The tally of ballots showed that 346 employees 

voted for union representation, while 390 employees voted against. The union filed objections, 

blaming its election loss, in part, on the employer's failure to provide a "complete voter list," 

pursuant to the new rules. The undisputed facts were that the employer provided a complete list 

of names and home mailing addresses by running a report from its Human Resources database. 

This list, to the extent accurate, would have satisfied the Excelsior list requirements in effect 

during tens of thousands of representation proceedings from 1966 until April 2015. 

The list also contained telephone numbers, either home or cell, for approximately 94% of 

the eligible voters, and whatever e-mail addresses were in the database. The employer thus 

provided significantly more opportunity for union outreach than was customary for almost 50 

years. Yet, the Regional Director sustained this objection, discarding the employees vote against 

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union representation and order.ing a re-run election, because the employer did not show that it 

made a diligent enough search of additional contact lists maintained by each separate 

department, the hiring office's recruiting system, and even perhaps, individual teams and 

managers, to determine if there were any additional employee telephone numbers or personal email addresses not turned over to the union. In demanding this level of scrutiny of an employer, 

the Regional Director expressly rejected the employer's protest that obtaining additional e-mail 

addresses from the hiring system would have required sorting through 36,000 records - to 

possibly locate some additional information for some of the 866 eligible voters. This 

interpretation of the Voter List requirements thoroughly undermines the Board's pronouncement 

upon implementation that "assembling the information should not be a particularly timeconsuming task." 79 Fed. Reg. 74308, 74354 (Dec. 15, 2014). By requiring this extreme level of 

evaluation, search and compilation of data in a 48 hour period -- and invalidating election results 

for the employer's failure to find and then turn over every single stone in search of a stray e-mail 

address -- the new rules are serving as a vehicle to impede, not protect, the Section 7 rights of 

employees. 

The Employee Privacy Protection Act would restore the seven (7) day time frame for the 

careful compilation and transmittal of this information directly to the National Labor Relations 

Board -- which procedure worked sufficiently for nearly fifty years. Moreover, it would afford 

employees the choice of which single method of contact each would prefer for receipt of union 

campaign communications. This puts the choice of showing interest and sharing personal and 

private contact information - of choosing to engage or to refrain 

employees, where the statute properly places it. 

14 

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CONCLUSION 

For all the reasons set forth above, the Subcommittee should move expeditiously to 

passage of H.R. 2776 and, H.R. 2775, to fundamentally correct the unnecessary and misguided 

direction undertaken by the Board in this area during the past six (6) years. 

15 
59 

Chairman WALBERG. Thank you for your testimony. 

Thanks to each of you. 

And now, noting that the witnesses pretty well kept to the time 

period, I would say the same thing to my colleagues here -- of 

course, not the one I’ll recognize first, and that’s the chairwoman 

of the full committee, Mrs. Foxx. 

We welcome you for your statements. 

Mrs. FOXX. Thank you, Mr. Chairman. 

As chair of the full committee, I just want to take a moment to 

thank everyone for accommodating our time change today, especially the witnesses who came from out of town. 

As Mr. Walberg noted in his opening comments, this is a very 

sad day for this House. I know we’re all praying for our colleagues, 

Members and staffs and brave Capitol Police, officers who suffered 

such a terrible act of violence this morning. 

But I truly believe that the best way we can honor our friends 

who are in the hospital or recovering with loved ones this afternoon 

is by doing what they would be doing if their day had not taken 

such a tragic turn, is by doing what all of us came here to do, and 

that’s the people’s work. So I do want to thank again everyone, our 

colleagues on both sides of the aisle, for being here. 

Now, I’d like to ask some questions of our witnesses. And, again, 

thanks to all of you for being here today and providing your valuable testimony and staying within the timeframe. 

Ms. McKeague, there’s obviously concern among workers that the 

ambush election rules require employers to turn over to unions a 

number of pieces of personal information, including workers’ home 

addresses, phone numbers, personal cell numbers, personal email 

addresses. This rule also puts employers in a difficult position. 

Can you give some examples of the burdens the 2015 changes to 

[Excelsior List] pose for employers? Additionally, what types of 

problems arise from needing to provide more information only two 

days as opposed to the prior seven-day standard? 

Ms. MCKEAGUE. Yes. Thank you very much. 

As most of you are probably aware, because you’ve been in the 

position of being on the giving side of that information stream 

yourself, we compile a lot of information about our employees, and 

it may be in a couple of different databases. So we have, you know, 

home addresses, home telephone numbers, cell phone numbers 

when they give them to us. We have the same information about 

their dependents. We start collecting Social Security numbers as 

soon as they’re issued on their infants. We have military records. 

We have background check information. We have all sorts of sensitive information, and they’re stored in a variety of different ways. 

The problem it creates for me, as an H.R. professional, is that 

these employees trust me to keep that information confidential. Because with the wealth of information I have, I can become them if 

I wanted to for purposes of applying for a credit card, getting a 

mortgage, doing anything that I shouldn’t do with this. The chief 

rule I have for our H.R. team is that to misuse or leave that information out where it’s available to somebody else is a dischargeable 

offense. 

In order to provide the Excelsior List information, I have to sort 

out from that what’s being asked for on the Excelsior List. I have 

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60 

to check to make sure that it’s accurate, because if it isn’t accurate, 

I can be fined for that. 

Employees don’t always update the information with me. For instance, a lot of my employees now, while I have a landline listed 

for them, they no longer use a landline, so I just have a cell phone. 

They certainly don’t update the cell phone if they get a secondary 

cell phone. 

So it takes me a while to go back through that to make sure that 

it’s as complete as it can be. And I only have 110 employees. So 

I can only imagine what it’s like at a larger enterprise, which is 

more likely to be the target of an organizing drive. 

Mrs. FOXX. Thank you very much. 

Mr. Borden, over the last eight years, the National Labor Relations Board made a lot of changes under the facade of helping 

workers. However, it appears to some of us that these changes actually hurt those they’re intended to protect. 

For example, it seems to me the Board should be able to review 

the decision of a regional director before union election takes place. 

Can you give some examples of why pre-election board review is essential? 

Mr. BORDEN. I’d love to. I think that this is, in particular, an 

area where the Board’s 2005 -- 2015 rule, pardon me, got it exactly 

wrong. I think that when there are important questions of unit eligibility, inclusion, important legal issues that are likely to impact 

the conduct of the parties in the weeks leading up to an election 

and possibly impact the election itself, it is in everybody’s best interest to have those issues resolved at the outset. 

Nobody wants to play an entire game only to find out after the 

final buzzer that the rules have been completely changed and all 

of a sudden Tom Brady is on the other team and all his touchdowns count for them instead. No one wants to find out the rules 

that they’re playing under after the fact. 

And I think that the restoration of the pre-election hearing process here to resolve those issues -- is someone a supervisor or not? 

That has very, very serious legal implications for an employer and 

the people with whom it can communicate and how it communicates during an election contest. 

Issues of eligibility, voter eligibility, the Labor Board does a phenomenal job of protecting the secrecy and the privacy of the ballots 

cast. But my experience has been that employees don’t want to 

hear: Oh, your eligibility is being contested so you can vote in this 

election, but your ballot may become the source of litigation after 

the fact. 

That has a chilling and intimidating effect that is unnecessary 

if we are able to resolve those issues at the outset. 

Mrs. FOXX. Thank you. 

And I just want to say, Ms. Cox, thank you for the courage you 

showed and the actions you took and for being here to share that. 

Thank you, Mr. Chairman. I yield back. 

Chairman WALBERG. I thank the gentlelady. 

And I recognize the ranking member, Mr. Sablan. 

Mr. SABLAN. Thank you very much, Mr. Chairman. 

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61 

Mr. Calemine, Jody, welcome back. It’s good to see you again. 

Thank you very much for appearing this afternoon, and thank you 

for your many years of service to this committee. 

Your statement says that, while the three bills under consideration today are relatively short, they are packed with malicious intent. You pointed out that the true goal of the legislation is to 

weaken or eliminate unions. So, if this bill is forever enacted, what 

would become of collective bargaining, and what would be the effect 

on income inequality in our nation? 

Mr. CALEMINE. It’s well studied that unions help push wages up, 

not just for their own -- the companies that are unionized—but 

their competitors then are forced to increase wages and benefits. A 

good example would be in the auto industry: UAW has done a good 

job of setting standards for wages, and it has helped push up wages 

across the industry. 

It would, in an immediate sense, as union -- if unions were eliminated, when we bargain, we bargain higher wages. We have I think 

a 27 or so percent difference between what union members make 

or what unionized workforces make compared to nonunionized 

workforces. It makes a huge difference in terms of -- that difference 

is even more dramatic when you look at the wage differences between union and nonunion workers who are women or African 

American or Latino. 

It just -- it does -- if we were to -- if these bills were to become 

law and organizing were to become next to impossible, especially 

under the Employee Rights Act, we would see income equality, just 

to get to the bottom line here, exacerbated and all the social and 

economic ills that come along with that. 

Mr. SABLAN. All right. Yeah. 

And H.R. 2723, if it becomes law, it would require the majority 

of all eligible voters in order to certify the establishment of a union 

but would only require a majority of those actually casting ballots 

to the decertify a union. So that means that all nonvoters are ‘‘no’’ 

voters when it comes to electing a union, and you alluded to saying 

that some of us may not be here. I agree with you, my first two 

elections, I would not be here. 

But is there a double standard that sets out different tests for 

certification and decertification elections, or is this simply what it 

appears to be, a blueprint to eliminate unions? 

Mr. CALEMINE. Well, it’s absolutely a double standard in this bill, 

what the Employee Rights Act does. As you said, if you are a nonunion workforce trying to become union, to do that you would need 

the votes of all eligible voters -- or I’m sorry -- a majority of all eligible voters to win. 

If you’re a union shop, going through this automatic decertification process that has been -- that is introduced in this new bill, to 

decertify, you only need a majority of the votes cast. So it’s far 

harder to win a union, far easier to eliminate a union. 

Mr. SABLAN. So, then, if I understand H.R. 2723 correctly, there’s 

a mandatory requirement for union recertification elections also 

every three years if there is a 50 percent employee turnover since 

the previous union election. So doesn’t this effectively amount to a 

decertification process even though there was no decertification petition filed? 

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62 

Mr. CALEMINE. Right. Even though no worker may have wanted 

to decertify, there’s now this process that causes an election to happen when the workforce changes by at least -- or, I guess, one more 

than 50 percent. 

Mr. SABLAN. Right. 

Mr. CALEMINE. There’s an automatic decertification, probably 

triggered by the employer’s changes to the workforce. 

Mr. SABLAN. Right. 

And, Jody, you very well know me. I’m from the insular areas, 

the territories. In this committee, we’re calling the outlying areas. 

On Sunday or Saturday, there was an election in Puerto Rico 

where 93 percent of those who went to vote voted aye for statehood, 

but only 26 or 27 percent of the population of the registered voter 

population voted. So is that a majority of voters? I mean, is that 

how we would win union elections also? 

Mr. CALEMINE. Yeah, I don’t follow exactly, but it doesn’t sound 

like it. 

Mr. SABLAN. All right. 

Mr. Chairman, my time is up. Thank you. 

Chairman WALBERG. I thank the gentleman. 

Now I recognize the gentleman from Georgia, Mr. Allen. 

Mr. ALLEN. Thank you, Mr. Chairman. 

And thanks to our panel for being here and talking about this 

important issue. 

Mr. Borden, I’m interested to know about the impact of the combination of all these Board changes in recent years. For instance, 

what is the relationship between Specialty Healthcare and the 

NLRB’s ambush election rule, and what effects have you seen since 

the decision and the rule were handed down? 

Mr. BORDEN. Sorry. I think it’s hard to even focus on just the 

interchange of those two changes because there were so many 

changes during the last five or six years where the Board changed 

drastically longstanding principles of law that are critical to an employer’s approach to these issues and critical to the balance of the 

employees’ unions and the employers’ rights: the joint employer 

standard, which was overhauled significantly; the multiemployer 

bargaining unit cases whereby third-party employees can be included with the regular full-time employees of an employer without 

the consent of all parties; and even some of the more discrete 

issues like use of the employers’ equipment for organizing purposes. 

These all cast aside 30, 40, 50 years of precedent and the manner 

in which employers were accustomed to doing things. When you 

add in the fact that now, on a compressed time framework, where 

the employer has only a few days after the filing of a petition to 

discover all of the legal issues that they may have to approach, consider these new legal frameworks, compile all of the evidence that 

might be necessary for assessing and addressing those issues to the 

Board in the hopes -- in the hopes -- of getting a hearing to create 

a record and preserve issues, and then you couple that with the 

further complication of the Specialty Healthcare standard that 

they’ll be forced to consider and the need to do all of these other 

things, like compiling all this data that Ms. McKeague spoke about, 

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63 

tion of election, it eats significantly into the resources and the focus 

that employer has to exercise its free speech rights for whatever 

timeframe it might have before that election. 

Mr. BORDEN. And it makes it harder to comply with all of the 

technicalities. 

Mr. ALLEN. Certainly, Ms. Cox, in your testimony, you brought 

some examples about some of the issues you’ve dealt with. You 

know, we’re talking here today about legislation that would correct 

some of these things. 

Mr. Borden, you talked about -- let’s talk about the overwhelming community of interest test. When does the Board use 

this test in determining bargaining units, Mr. Borden? 

Mr. BORDEN. Well, the answer to that question differs as to 

whether you meant before 2011 and the Specialty Healthcare decision or now. The overwhelming community of interest language 

was plucked out of an unrelated standard that the Board employed 

in -- traditionally in accretion cases, which is the standard that’s 

applied when you have an existing bargaining unit in place represented by a union. And the union or employees petition for the 

inclusion of another group of employees into that existing bargaining union without an election. And the Board had traditionally 

looked at that and said, we’ll only allow that to take place if those 

additional employees share an overwhelming community of interest 

with the already represented employees. 

Mr. ALLEN. Okay. 

Mr. BORDEN. The Specialty Healthcare case, pluck that language 

out of context and applied it to the traditional test that turned the 

traditional test on its ears to change and add a significant burden 

to employers when they wanted to challenge the handpicked unit 

that a union petitioned for. 

Mr. ALLEN. Does the Workforce Democracy and Fairness Act adequately address this issue? Do you believe it? 

Mr. BORDEN. I think it does. I think it does by -- as I said in my 

opening comments, by putting the traditional community of interest factors, the test that had been used for decades prior to Specialty, expressly into the language of the statute, it would provide 

that clarity and that stability, the inability of a future board to approach this issue unilaterally and kind of whimsically change the 

standard. 

Mr. ALLEN. I yield back, Mr. Chairman. 

Chairman WALBERG. I thank the gentleman. 

And I recognize the gentleman from New Jersey, Mr. Norcross. 

Mr. NORCROSS. Thank you, Chairman. And our thoughts go out 

for what happened today, a remarkably sad day. 

But I want to start with what the Speaker talked about, and that 

is the relationships and working together. You on this panel know 

that I worked as a business agent for close to two decades. I’ve 

lived what you’re talking about today. And my hand is extended, 

and any time you’d like to hear a view from the opposing side, who 

have been to the NLRB, who had filed elections. 

But let’s look at the facts. It almost seems like we’re in some alternate universe of how bad the employer has it. I’m going to bring 

to your attention the percentage of union workers over the course 

of the last quarter century. When those are telling us you have it 

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64 

so bad. We’re down to 10 percent, the union side. You can see it 

behind you. So all these horrible rules, yet you’re still winning all 

the elections. Facts count, and this is what I want to be talking 

about. 

Now, we as a country many years ago decided that people would 

have a voice in the workplace, that they would be able to join 

unions, have collective bargaining. Well, there’s been a tremendous 

drop over the course of -- since 1983. And there is just so much to 

cover here today, but I want to try to focus in on a couple of those. 

First and foremost, when we talk about access to the employees, 

the employer has unlimited access. They have any number of meetings that they want to put together, there’s captive audiences. It’s 

up to you. And you’re suggesting that you don’t even know your 

own employees. And to say you can’t pull the electronic information 

out—I think my 12-year-old grandson could pull that out. This is 

not burdensome. In fact, union membership has gone down since 

you put this rule into effect. I know the lawyers like it. This creates 

a lot more opportunities, but this is just trying to create fairness. 

There was a statement made by Ms. Cox that talked about the 

employees who had signed the authorization card to receive -- they 

said they thought they were going to receive union information. 

The fact of the matter is that can be used as an unfair labor practice. And I have one right in front of me that talks about exactly 

what it says: I hereby accept membership in the above-named 

union, and on my own free will, I hereby authorize. 

So, Mr. Calemine, is there anything in this that you would say 

is deceptive? 

Mr. CALEMINE. No, it’s very plain language. 

Mr. NORCROSS. It’s one that’s used universally, because the card 

could be thrown out if it’s not following the rules, right? 

Mr. CALEMINE. All cards have language along those lines. 

Mr. NORCROSS. Why do you think we’re in this position today, 

the ambush rule as they call it? Where’s the problem with that if 

the elections are still, by majority, being won by the employer? 

Mr. CALEMINE. Well, I think -- I appreciate the question, because 

it allows me to provide more context for what’s going on here. 

There isn’t -- it’s not as if when the petition is filed -- I would be 

surprised if there’s a case out there where -- or that there are very 

many cases out there anyway where an employer did not know 

workers were trying to organize a union until that moment that petition was filed. 

An organizing drive takes a lot of work and it is very difficult, 

because the union does not have access to the workplace; the employer has total access. So there’s a lot of attempting to get people’s 

attention outside, to meet with people outside of work. And as Ms. 

Cox described, when you’re a union supporter trying to organize a 

union, you’re also confined to nonwork areas, nonwork time when 

you’re in the workplace. So it’s very difficult. 

So I don’t view this as ambush. I actually -- I think what happens is when the petition is filed, I think it sends a signal to the 

employer, uh-oh, they must now have the votes, and now is the 

time to really start campaigning to switch those people back. So 

the more time they have after a petition has been filed, the better 

off they are. I think there have been studies showing that that’s 

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the time when unfair labor practices are more likely to be committed in that timeframe. So I think that’s a fine time to turn the 

election. 

Mr. NORCROSS. Five seconds less on your support bill, but, again, 

when we can work together, that’s how our country will grow, not 

by creating the good guys and the bad guys or the union and the 

employer. We really could have a conversation and work this out. 

I yield back. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize the gentleman from Michigan, Mr. Mitchell. 

Mr. MITCHELL. Thank you, Mr. Chair. 

Ms. Cox, I don’t want you to get bored there, especially all the 

time you waited. And thank you to all of you for rearranging your 

schedules today. 

I’m aware of concerns that employees have that sometimes they 

don’t feel adequately advised what the consequences of signing a 

card given to them by union organizers, union representatives. In 

your experience, did the union provide you and your fellow employees with accurate information about what it meant to sign the 

card? And what recourse did you have? 

Ms. COX. Many of my coworkers were very upset after they found 

out we were not going to have an election, because they were told, 

no matter what it said on that card, they were told that if they 

signed that card, they would get information about the union, 

whether or not they wanted to decide to have a union or not. 

And they did this -- actually, nobody was doing this petitioning 

outside of work like I did when I was doing it on the other side. 

These people were doing it on work time and inside the building, 

during work hours. They weren’t supposed to, but, you know, they 

were sneaky about it. 

Mr. MITCHELL. And you didn’t think that was quite as balanced 

as it should be, I assume? 

Ms. COX. No, I do not. I don’t think that’s fair at all. 

Mr. MITCHELL. Let me ask you a question, giving that information, your personal information as part of the union organizing 

drive, the current system has basically any of the identifying information short of your Social Security number and your address, all 

your telephone numbers, all of that is required to be turned over 

as part of the organizing drive. What’s your opinion of that? 

Ms. COX. Of the union having my address and everything? 

Mr. MITCHELL. Address, all your phone numbers, your cell number, they’re entitled to all that, based on the current rulings. 

Ms. COX. Well, I don’t agree with it. I do know that, after I started petitioning, many of the union reps were visiting homes and upsetting many of my coworkers, because they came to their door and 

tried to persuade them against me. 

Mr. MITCHELL. Did any of your benefits people come to your 

home to talk to you about your health insurance benefit or anything else? 

Ms. COX. No. 

Mr. MITCHELL. They didn’t. But they’re supposed to help you out 

as workers. Do you know if any of the union organizers come to 

talk to you? 

Ms. COX. No. 

EDL-011-D with DISTILLER

66 

Mr. MITCHELL. Did the union come to talk to you about what the 

contract negotiation should be like? Did they stop in to see your 

thoughts on that? 

Ms. COX. No, they did not. 

Mr. MITCHELL. So they only came by to make sure you signed the 

card so they could organize. 

Ms. COX. Exactly. 

Mr. MITCHELL. Well, so much for being concerned about representing the employees. 

Ms. McKeague, we talked about the distribution of information 

with the [Excelsior List.] My company had 650 employees. I’m not 

-- to be brutally honest with you, I’m not sure we could ever comply 

with a two day turnaround with the information required by that 

list. More importantly, is there any other function that you had 

that requires you turn over a list to that extent of your employees 

to some other entity? 

Ms. MCKEAGUE. The only way I would turn over any of that 

other information would be under a court order. 

Mr. MITCHELL. That would be as a result of some legal action or 

a subpoena? 

Ms. MCKEAGUE. Generally, the only other time I would get a request for that kind of information without the employee’s consent 

would be under a pending divorce action or a child custody dispute. 

Mr. MITCHELL. But that would only be for one employee, correct? 

Ms. MCKEAGUE. That would be one employee, correct. 

Mr. MITCHELL. One or two, depending on the circumstances. 

Right. 

Ms. MCKEAGUE. Yes. 

Mr. MITCHELL. But not all of your employees? 

Ms. MCKEAGUE. No. I’ve never seen a circumstance where it 

would be required for all of my employees. 

Mr. MITCHELL. And you’ve never -- other than the union organizing activity, never seen -- I’ve never it in my career other than 

this. It is the most unique thing I’ve seen. 

Ms. MCKEAGUE. Correct. And this is information that all of us 

teach our children not to hand out to anybody else because of the 

risk. 

Mr. MITCHELL. As a matter of fact, you’re right. 

Ms. MCKEAGUE. Uh-huh. 

Mr. MITCHELL. And when we obtain utility service, health insurance, I can give you a long list, we in fact only provide specific information we want to provide for contact. We get to choose. But in 

this one instance, under the current rulings, all that information 

is released. 

Ms. MCKEAGUE. And that’s my objection, is it’s done without the 

employee’s consent. 

Mr. MITCHELL. And to be direct and honest with you, it’s my objection as well, which is why I support the legislation that would 

make this change and will urge us moving forward when it comes 

time for markup. 

My time has expired. I appreciate everyone being here. Have a 

good weekend. 

Chairman WALBERG. I thank the gentleman. 

EDL-011-D with DISTILLER

67 

Now I recognize the ranking member of the full committee, Mr. 

Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Ms. McKeague, you mentioned some problems at the acute hospitals. So there are special rules for organizing bargaining units in 

acute care hospitals? 

Ms. MCKEAGUE. I’m not a specialist in bargaining. Most of my 

hospitals that are organized have very good cooperative, respectful 

relationships with their bargaining units. And assuming that this 

goes back to the Specialty Healthcare decision, this is where I will 

agree with Mr. Calemine about Specialty Healthcare. 

I believe the circuit courts of appeals, it was mentioned earlier, 

eight of them agreed with the NLRB on Specialty. I think that was 

a very fact-specific case dealing with a nonacute care facility and 

the bargaining unit. And I believe the circuit courts got it right. 

My concern on Specialty, which has since been used to deal with 

microunits outside of the nonacute care setting, has been that it 

could be used, if it isn’t corrected, on a go-forward basis in an acute 

care setting would be very dangerous. 

Mr. SCOTT. Well, that’s why there are special rules in acute care 

hospitals. Has your position taken -- speaking of healthcare, has 

your position taken a -- has your organization taken a position on 

the TrumpCare? 

Ms. MCKEAGUE. Yes. 

Mr. SCOTT. What is it? 

Ms. MCKEAGUE. The Michigan Health & Hospital Association 

has taken a position. SHRM, which I’m here to testify on behalf of, 

has not. 

Mr. SCOTT. And what is that position? 

Ms. MCKEAGUE. Michigan Health & Hospital Association is opposed to the Affordable Health Care Act which the President has 

proposed. 

Mr. SCOTT. Thank you. 

Mr. Borden, you’ve indicated a need to get everything straight 

before the vote. If the subjects of the litigation would be moot because the number of votes in controversy are overwhelmed by the 

margin victory, why shouldn’t the vote go forward? 

Mr. BORDEN. Well, I think there are, as I mentioned earlier, 

there are practical consequences and possible real legal exposure 

that employers are forced to undertake if they don’t have the certainty of certain issues. 

Mr. SCOTT. Right. But, I mean, you can argue about one or two 

votes here, one or two votes there. If the margin of victory was like 

hundreds of votes, why would you delay, through various levels of 

litigation, the vote to get -- to figure out whether or not those votes 

are eligible or not eligible when all of those questions would be 

moot if there is a much larger margin? 

Mr. BORDEN. I think because there are issues beyond simple inclusion or eligibility of certain voters that pertain to whether their 

vote will count or not. The issue of supervisory involvement is one 

that I mentioned, is the one that springs most chiefly to mind. 

Mr. SCOTT. And if you’re arguing about a handful of votes when 

the margin is hundreds, why would you want to delay a bill and 

wait for a final verdict? 

EDL-011-D with DISTILLER

68 

Mr. BORDEN. Because it has nothing do with the handful of 

votes. It has do with the fact that if there are 10 or 15 workers 

who an employer deems to be supervisors, management, agents of 

the company, and the union contends are employees, failure to resolve that issue at the outset has far reaching consequences. Now, 

as an employer, I’m forced to make a decision. I’m forced to either 

decide I’m not going to talk to these 15 people, who I earnestly believe to be members of management during this campaign, deny 

them the information and my communications -- 

Mr. SCOTT. So if you can find side issues that would be totally 

moot, if you could just get to a vote -- 

Mr. BORDEN. With due respect, I don’t think the supervisory 

issue is mooted. And, frankly, it threatens to undermine the vote. 

Mr. SCOTT. It would be mooted if you’re talking about a handful 

of supervisors and you’re about to lose the election by hundreds of 

votes. Why should you be able to delay for months and even years 

an election, Mr. Calemine? 

Mr. CALEMINE. Yeah. I was just pointing out -- I think the question of whether or not somebody is a supervisor or not, if it’s a real 

problem for the employer, it’s been a problem for a long time, because the organizing drive has been happening for a long time. You 

only get to resolve these questions at the end. And it’s at the end 

of that campaign, that long campaign, whether the election is about 

to be delayed or not, on some level. 

I also just wanted to make a point that with respect to all the 

information that the NLRB rules allow -- now have employers provide to unions, these bills do not protect employees’ privacy from 

their own employers. That is, the employers can compel employees 

to give them their email addresses, their personal email addresses, 

their personal cell phones, et cetera, for purposes of use in the campaign. So one side, again -- and remember that the reason this has 

become an issue for 50 years getting this [Excelsior List] is that the 

union is not permitted to come into the workplace. 

It might be a completely different debate if what we were actually debating was the unions -- to avoid having to talk to workers 

outside of the workplace—if unions were entitled to access to the 

workplace. That would be -- and in some cases, that’s what happens, employers and unions will reach an agreement to provide for 

union access, but unions aren’t entitled to that. So how are unions 

supposed to talk to the voters when the employers have the voters 

captive, essentially, for captive audience meetings or throughout 

the workday and talk to them all the time? There’s just -- this is 

just a matter of fairness. 

Chairman WALBERG. The gentleman’s time has expired. 

Now I recognize the gentleman from South Carolina, the sponsor 

of H.R. 2775. 

Mr. WILSON of South Carolina. Thank you, Mr. Chairman. And 

thank you, Mr. Chairman, for your dedication and leadership for 

meeting today and with our thoughts and prayers with Congressman Steve Scalise, the U.S. Capitol Police, and then staff members. 

And I particularly am thinking of different offices, like the office 

of Tim and Sue Walberg, that their office has been directly affected. And it’s just so impressive to have a chairman who will conEDL-011-D with DISTILLER

69 

tinue on important issues as we work for the citizens of our country. God bless you. Thank you. 

Ms. McKeague, in your experience, are union organizing campaigns always started by employees or is it instead a result of a 

union operative coming in from the outside? Can you explain the 

process? 

Ms. MCKEAGUE. No, they’re not always started by employees, but 

there has to be a receptive employee for the union to get a foothold 

in the organization. So, you know, generally it’s a little bit of both. 

And my experience tends to come from a receptive audience within 

our workforce. And it’s generally more successful when there’s been 

a relationship between an employee in one of our facilities and 

somebody from the union which wants to become recognized in the 

workplace. That can come about from a friendship or an existing 

relationship with an employer where that employee used to work, 

but it generally comes out of a collaborative working relationship 

or friendship that they’ve had someplace else. 

Mr. WILSON of South Carolina. I’m grateful. In my home state of 

South Carolina we’ve recently had an organizing campaign at the 

Boeing facility in North Charleston, South Carolina, and it was 

really outside. And to the credit of the workers, the results of the 

most recent vote was 73 percent not to organize. And it was truly 

a credit of the workforce, a credit to the personnel there, such a 

positive environment. And we in South Carolina truly benefited. 

We now have nearly 9,000 people at that facility in North Charleston. And then the ripple effect for suppliers. Throughout the district, I represent perturbing for interior for the cable, and so we’ve 

seen a very positive result just recently in my home state. 

Ms. Cox, I want to thank you for being here today and sharing 

your information. I share your concerns about employee privacy. 

You and your father’s experience with the threat made by union 

representatives shouldn’t happen to American workers or their 

families. Yet there are numerous articles that cite similar occurrences. 

In a [Washington Times] article, Jennifer Parrish tells of how a 

person came to her house uninvited and became increasingly angry 

when she refused to sign his petition. The petition he wanted her 

to sign was indeed a union authorization card. 

The ambush election rule that we’re discussing today requires 

employers to provide even more private information to union representatives than before. 

You mentioned your family has been contacted. How did the 

union get that information? Given your experience, does providing 

even more private information about the employee increase the 

possibility of greater coercion or harassment from paid union organizers? 

Ms. COX. I’m really not sure how they got my dad’s -- even his 

name, because we don’t share the same last name, and I was not 

living with my parents. I’m not sure -- he must have done some research on me beyond my address and name. 

Mr. WILSON of South Carolina. Well, again, thank you for your 

courage for being here today. 

Mr. Borden, thank you for your service. As a fellow attorney, I 

particularly appreciate your insight. And as we have legislation 

EDL-011-D with DISTILLER

70 

today, I appreciate your endorsement of the Employee Privacy Protection Act. And can you give any other reasons why this is so important? 

Mr. BORDEN. I think that beyond the -- beyond just the problems 

that the other witnesses have spoken to about turning this personal contact information over is the manner in which some regions of the Board have enforced these new requirements. And 

what particularly comes to mind is a case coming out of the Boston 

region, Danbury Hospital case, where despite the fact that within 

this two-day timeframe the employer turned over every voter 

name, every voter home address, what had been required for 50 

years, to the union, had turned over phone numbers and/or email 

addresses for 94 percent to the bargaining unit. 

So that was far more than any union had gotten in any election 

in 50 years from an employer. Because the Board regional director 

found that they did not do an extensive enough search of individual 

department lists and separate lists that might be maintained, even 

perhaps by individual managers, to see if there were any other 

available numbers or email addresses available, he threw out the 

results of that election. This enfranchised 390 people that voted 

against that union. That is not a reasonable result within the 

framework of these new rules. 

Mr. WILSON of South Carolina. Well, thank you for your background very much. Bye-bye. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize the sponsor of H.R. 2723, the chairman of 

the Veterans’ Affairs Committee and the gentleman from Tennessee. 

Mr. ROE. Thank you, Mr. Chairman. 

I’m going to associate my remarks with Mr. Wilson in his comments about what happened today. And I thank all of you all for 

being here. 

Mr. Calemine, I thank you for your years of service on the minority. 

I want to get a couple of things in the record, Mr. Chairman. To 

start with, one, less than 10 percent of union members ever voted 

for a union they currently represent. Number two, since the ambush -- the so-called ambush election rule came in, unions were 

winning, at that time, 68 percent of representation case elections, 

contrary to what Mr. Calemine said. And as fiscal year 2016, the 

first full year of the rule when the elections were representation 

cases, it won 72 percent. 

I know as an employer there’s no way on this planet I could get 

an attorney, a labor attorney in 10 or 11 or 12 days to represent 

me. There would be no way I could educate myself. I am completely 

disarmed. So I want to get that on the record. 

Number three I would like to get on the record is that the Railway Labor Act covers major airlines and rail employment has the 

same absolute majority requirement in election for over 75 years, 

that’s been going on. And to compare that to an election we have, 

which is going to get me to the secret ballot election, is that a Congressman can’t deduct anything from your paycheck. We can’t force 

you to go on strike, and we can’t have you fired if you don’t follow 

the rules. There’s a big difference. 

EDL-011-D with DISTILLER

71 

Forty-four years ago, right now, I’m 11 miles south of the demilitarized zone in Korea, serving in the United States Army. I put on 

that uniform and left this country so that you could have a secret 

ballot to elect me, the President, and the union heads. And yet Ms. 

Cox can’t get that if there’s a card check. She can’t have the same 

protections. 

And, Ms. Cox, I think that bothers me more than anything, is 

that I think we need to have -- this country was founded on the 

secret ballot. My wife tells me she voted for me. I don’t know that 

for a fact because it’s a secret election, a secret ballot. And I think 

that you as an employee ought to have exactly the same right. And 

I cannot understand why anybody at this dais would not insist that 

you have that right. While somebody could check a card and then 

decide for you belong to an organization, I don’t get that. 

And I want to ask you, and you spoke very eloquently about this, 

decertification process that you personally went through. But you 

took your own time, you traveled in the NLRB office. And it appeared, all to no avail, two years later they threw the ballots out. 

And do you believe that individual employees are given a voice in 

the process as you describe in your testimony or is NLRB more concerned with interest of unions and employers instead of the employee? 

Ms. COX. I truly believe that the NLRB was very biased and 

sided with the union. I mean, I don’t know how -- the petition that 

I filed that got us the election was filed before -- I’m sorry -- after 

they scheduled the ratification. They were done bargaining. So how 

can the NLRB tell me now that we didn’t deserve that election because they didn’t have enough time to bargain when they already 

were done? 

Mr. ROE. So why do you think that was? 

Ms. COX. Why do I think -- 

Mr. ROE. Why do you think the NLRB ruled like they did? 

Ms. COX. I’m really not sure. 

Mr. ROE. Do you think that was a fair ruling? 

Ms. COX. No, I don’t think that’s fair at all. 

Mr. CALEMINE. I can answer. 

Mr. ROE. I think another thing that’s in the bill that I have here 

is secret ballot votes for a strike. I grew up in a union household. 

My father worked in the United Rubber Workers union. And I remember the strikes we went on, that he had to go on, where our 

family was deprived of income. Some of them went as long as 3 

months. I mean, I can still remember those. We would go out and 

sand floors and do whatever we could to make a living to feed our 

family. And eventually his company left the country. And here’s a 

50-year-old, after World War II -- 50 years old, a high school education and no job. And so I’ve seen where people have lost their job; 

not have higher wages but no wages at all. 

And, Ms. Cox, I think your testimony is incredibly compelling to 

me, when you didn’t want this, you weren’t afforded the rights that 

I think any employee ought to be afforded. 

Ms. COX. Thank you. 

Mr. ROE. Mr. Borden, do you have any comments on that? 

EDL-011-D with DISTILLER

72 

Mr. BORDEN. I do not, other than to say that the Labor Board 

does usually do a phenomenal job of trying to protect the secrecy 

and the privacy of the ballots in those elections. 

Mr. ROE. Why would they have thrown them away? 

Mr. BORDEN. I think it’s one of the things, frankly, that the 

Labor Board does best. 

Mr. ROE. I yield back, Mr. Chairman. Thank you. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize myself for five minutes of questioning. 

Ms. McKeague, the ambush election rule is especially difficult for 

smaller employees -- employers. Excuse me. Are smaller employers 

particularly affected by the timetable of an ambush rule? 

Ms. MCKEAGUE. Yes, in my opinion, they are. Most small employers don’t have an HR staff, certainly not a professional staff in 

most cases. And as was just noticed -- mentioned, they certainly 

don’t have a retained legal counsel that specializes in labor law. 

And in order to hire outside counsel, even if you were able to hire 

somebody in that first day or so, they have to do a conflict check 

in order to take you as a client, that of course means checking you 

against everybody else. 

Chairman WALBERG. How long would that take? 

Ms. MCKEAGUE. A minimum of -- a minimum of 72 hours, depending on the size of the firm. 

Chairman WALBERG. You’re talking of seven days potentially 

that you have, right, to get this accomplished? Taking out those 72 

hours? 

Ms. MCKEAGUE. Yeah, taking out the 72 hours, because you can’t 

go over the facts of the case with them, the lawyer, until you know 

that they don’t have a conflict. So you’re in a holding pattern until 

they can get that conflict checked done. So you’ve lost three days 

before you can even sit down with outside counsel and go over it. 

So you can start to do some background work within your place of 

business, but if you don’t have the internal expertise to do that, 

you’re dead in the water for three days before you can even start 

to get up and running. So as the gentleman noticed, yeah, you are 

already past your two day period. 

Chairman WALBERG. Even for the employer with best interests 

to make sure that a fair disclosure is given out there and an employee of his or her business understands very clearly it is almost 

impossible, especially for the small employer, to do the due diligence, to care for their employees, as well as their own setting to 

keep the jobs. 

Ms. MCKEAGUE. I would say for an employer of fewer than 50 

employees, impossible. For an employer of 100 or fewer, still a very 

close call. 

Chairman WALBERG. It’s tough. Thank you. 

Mr. Borden, the Obama NLRB sought to tilt the playing field, as 

we discussed, under the guise of helping employees like Ms. Cox 

in the direction of unions. In your experience, when do employers 

become aware of union organizing drives? 

Mr. BORDEN. I would say that there’s been a -- that I’ve seen a 

varied experience there, to be candid. I think there are some employers, as Mr. Calemine suggests, that are aware ahead of time, 

that have the heads-up. But just as much, I have seen that more 

EDL-011-D with DISTILLER

73 

savvy union organizers make a concerted effort to stay below 

ground for as long as they possibly can and to use as much time, 

weeks, months, or years prior to filing a petition, prior to alerting 

the employer to what’s going on to organize a group of employees 

that are going to drive the organizing effort. 

Chairman WALBERG. And the ambush rule has made it even 

more challenging? 

Mr. BORDEN. Well, it’s made it more challenging in the sense 

that, regardless of how much time ahead of the filing of the petition the union has been working quietly, the amount of time that 

the employer has after the filing of that petition has been significantly reduced. 

Chairman WALBERG. Ms. Cox, thank you for sharing firsthand 

experience that you’ve gone through, you’ve walked through and 

had a memorable, to say the least, testimony to share for this committee today. It’s the most important perspective, I believe, to consider, how it actually works in relationship with the employee. 

In your experience, are the interests of employees and interests 

of unions always the same? 

Ms. COX. I’m not sure what you mean. 

Chairman WALBERG. Looking at how this came about in your 

life, was the interest of the employee and the interest of the employer the same, and especially in its impact upon you? 

Ms. COX. The interest of -- like my interest as an employee compared to my employer? 

Chairman WALBERG. Employer, correct. 

Ms. COX. I believe there’s a difference, for sure. I mean, with the 

employer, it’s a business thing. 

Chairman WALBERG. Would it be safer to say -- I didn’t want to 

make a trick question out of that. But would it be safer to say that 

the interest of employers, employees, and unions are all different? 

Ms. COX. Yes. 

Chairman WALBERG. And so all ought to be considered? 

Ms. COX. Yes. 

Chairman WALBERG. In a timely fashion. 

Ms. COX. I agree. 

Chairman WALBERG. Hopefully brings about the best results. 

Ms. COX. Yes. 

Chairman WALBERG. I see my time has expired. I appreciate the 

answers. I appreciate the witnesses and the chance to respond to 

questions, but we’ve come to the end of the hearing. 

This is, as was mentioned earlier, an appreciation for regular 

order. This is what we wanted to do. We want the subcommittee 

to work and address it first. I’m sure there will be other discussions that go on. I know that’s the interest of the chairman of this 

full committee on Education and Workforce, to make sure that we 

deal with a very timely and important issue, relative to employers, 

employees, and unions in a way that isn’t just a pass of the hand, 

but we look at it and hear testimony. 

And so now I would turn and ask the ranking member if you 

have any closing remarks to make. 

Mr. SABLAN. Yes, Mr. Chairman. And I want to thank the witnesses again for their testimony. 

EDL-011-D with DISTILLER

74 

As I noted at the outset, the right to collective bargaining is to 

keep ensuring a fair economy. Numerous studies show that income 

inequality has skyrocketed as union density has dropped. Today, 

private sector union members have just a little over 6 percent, and 

the legislation before us today is aimed at the extinction of private 

sector unions as we know them. Today, we have learned that the 

three bills under discussion are designed to sabotage any notion of 

a fair union election process. 

H.R. 2723, the so-called Employee Rights Act, rigged union elections by counting every eligible employee who did not vote as having voted no against union representation. 

H.R. 27 -- and if I may note at this time, and with huge -- I have 

huge respect for the distinguished gentleman and my chairman of 

the Veterans’ Affairs Committee, the gentleman from Tennessee. I 

think he maybe has incorrectly claimed that the labor -- Railway 

Labor Act currently uses the ERA’s rule, making nonvoters vote 

against the union. I think the rule was amended in 2010 to require 

a bare majority of votes and not voters, like he stated. 

H.R. 2775, the so-called voter Democracy and Fairness Act, prohibits unions from having the same access to employees’ contact information as the employer during the election process, thus preventing employees from being informed about union representation. 

And as one of the witnesses stated, that although she didn’t fill the 

form, she thought, and many employees thought, that filling out 

the form, and which is written in both English and Spanish, was 

to provide information. But it actually hereby also says that, I 

hereby accept membership in the above-named union of my own 

free will, and hereby authorize it to act for me as a collective bargaining agency in all matters pertaining to wages, hours, and conditions of employment. And this is a union of the Retail, Wholesale, 

and Department Store Union, district council, UFCW. 

And I’d like to insert this for the record, if I may, Mr. Chairman. 

Chairman WALBERG. Without objection, and hearing none, it will 

be inserted. 

[The information follows:] 

EDL-011-D with DISTILLER

75 

EDL-011-D with DISTILLER


RWDSU 

UFCW 

370 Seventh Avenue, Suite 501, New York, NY 10001 

(212) 684-5300 

OFFICIAL AUTHORIZATION 

Name (Print)--------------

E-mail Cell 

Address Phone ________ _ 

Apt. __ _ City State Zip--------

Where Employed 

Class of Work----------- Dept. __ _ Shift __ _ 

I hereby accept membership in the above named Union, and of my own free will, 

and hereby authorize it to act for me as a Collective Bargaining Agency in all matters 

pertaining to wages, hours and conditions of employment. I have read this form carefully, 

and have entered into it of my own volition. No promise or representation whatsoever 

has been made to induce me to sign this form. 

DATE _________ __ SIGNATURE 

RWDSU 

UFCW 

370 Seventh Avenue, Suite 501, New York, NY !0001 

(212) 684-5300 

AUTORIZACION OFICIAL 

Nombre (imprima) --------

Correo electr6nico ------------

Direcci6n ------·-----------

Celular _______ _ 

Telefono ______ _ 

Apto.____ Ciudad _______ _ Estado Zona Postal ____ _ 

Lugar donde trabajo 

Clase de trabajo Departamento ___ Hora __ _ 

Por medio de la presentc y por decision propia acepto ser miembro del sindicato arriba 

citado, y lo autorizo a representarme como agente negociador colectivo en todo lo 

relacionado con salaries, horas o condiciones de trabajo. He leido este formulario 

cuidadosamente y he aceptado el mismo por voluntad propia. No se me ha hecho 

pro mesa o representaci6n alguna para persuadirme a firmar el mismo. 

FECHA FIRJv1A 

.,..., 
76 

Mr. SABLAN. And H.R. 2776, the so-called Employee Privacy Protection Act, mandates arbitrary waiting periods that delay elections 

and empower employers to gerrymander the voting composition of 

bargaining unions by adding employees who have expressed no interest in joining the union. So instead of relentlessly attacking voters’ rights and retaliating against employees who want a union, the 

committee should be focusing on efforts to strengthen workers’ 

rights to organize, raise the minimum wage, and provide paid sick 

days. 

I’d like to ask also unanimous consent, Mr. Chairman, to insert 

for the record a letter from the United Food and Commercial Workers Union, and the Retail, Wholesale, and Department Store Union 

District Council. If no objection, Mr. Chairman? 

Chairman WALBERG. Without objection, it will be inserted. 

[The information follows:] 

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77 

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Honorable Tim Walberg 

Education and the Workforce 

June 14, 2017 

Subcommittee on Health, Education, Labor, and Pensions 

U.S. House of Representatives 

2176 Rayburn House Office Building 

Washington DC 20515 

Honorable Gregorio Kilili Camacho Sablan 

Education and the Workforce 

Subcommittee on Health, Education, Labor, and Pensions 

U.S. House of Representatives 

2101 Rayburn House Office Building 

Washington DC 20515 

Dear Chairman Walberg and Ranking Mernber Camacho Sablan: 

On behalf of the United Food and Commercial Workers International Union 

(UFCW) and the Retail, Wholesale and Department Store Union District Council of the 

UFCW (RWDSU), we would like to respond to the written testimony of former Americold 

Logistics employee Karen Cox on the "Employee Rights Act," H.R. 2723. 

RWDSU organized after the merger between Versacold Logistics and 

Americold Logistics took place when employees stood together because they wanted a 

better life for themselves and their families. The union negotiated an increase in wages 

across the board; additional vacation time; they also addressed a seniority issue between 

the two facilities; a grievance procedure was put in place; and they handled a health care 

provider issue. 

There are clear procedures put in place by the National Labor Relations Act 

(NLRA) which are followed closely by our union when we organize a workplace. For 

example, Ms. Cox testified about being "angered" that the company had recognized the 

union through a process called "card check" and that an election did not occur. However, 

RWDSU followed correct procedures. A majority of her co-workers signed authorization 

cards that clearly stated that they wanted an organized union to represent them. RWDSU 

does not force or coerce anyone to sign these cards and additional information was 

available for those who requested it 

Anthony M. Perrone, International President 

Esther R. LOpez, International Secretary~ Treasurer 

United Food & Commercial Workers International Union, AFL-C10, CLC 

1775 K Street, NW • Washington DC 20006-1598 

·-· Office (202) 223-3111 • Fax (202) 466-1562 • www.ufcw.org 
78 

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Honorable Tim Walberg June 13,2017 

Honorable Gregorio Kilili Camacho Sablan 

-2-

There are also procedures put in place by the NLRA that protect employees. A 

member can always withdraw membership and, in fact, Ms. Cox chose not to be a member of 

the union. Ms. Cox was paying beck fees, which means her dues were only going towards 

representational activities. A member can choose to decertify the union and, in fact, Ms. Cox 

went through the decertification process but her efforts were unsuccessful. 

We are proud to represent more than 1.3 million Americans, including the 

employees at Americold Logistics. We have done everything from assist employees with 

individual matters to negotiate contracts that improve working conditions for everyone. While it 

is disappointing to hear that one person had a negative experience, we strongly believe that a 

majority of the hard-working men and women at Americold Logistics are proud to be members 

of our union family. 

Thank you for your time. 

Anthony M. Perrone 

UFCW International President 

Sincerely, 

Stuart H. Appelbaum 

Executive Vice President 

President, RWDSU District Council 
79 

Mr. SABLAN. I would also like to ask unanimous consent that the 

graph used by Congressman Norcross be inserted in the record. 

Chairman WALBERG. Without objection, it will be inserted. 

[The information follows:] 

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Percentage of wage and workers who were members of total 

and orivate sector, 1983-2016 

25% 

20% 

15% 10% 

5% 

1983 1986 1989 1992 

Cl !ck legend w 

U.S, Bureau 

- Total, all wage and salary workers 

Private-sector workers 

1995 1998 2001 2004 2007 2010 2013 20

to 
81 

Mr. SABLAN. I also would like to ask unanimous consent that a 

press release from the New Illinois Members at Americold Win 

First Contract. I would like a letter from -- a press statement from 

RWDSU, the union, which won a five-year collective bargaining 

agreement of Americold in Illinois, because that document explains 

the union won better pay, scheduling, improvements, and a better 

-- and a stronger grievance process. And these gains would not 

have been possible had her coworkers followed the lead of Ms. Cox 

and the National Right To Work Committee and decertified. 

Chairman WALBERG. Hearing no objection, that will be inserted 

as well. 

[The information follows:] 

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~ews' New lllmms Members at Amencold Wm fn:;t Contract I RWDSL! 

NEWS 

RWDSU news from across North America 

New Illinois Members at 

Americold Win First Contract 

Americold Logistics workers in Rochelle, Illinois, are celebrating after reaching an 

agreement on a new five-year contract. The ratified agreement includes wage 

increases over the next five years with lump sum bonuses plus a $300 signing 

bonus, along with a strong grievance procedure and a new absentee policy. 

The 111 workers at two Rochelle facilities joined RWDSU Local 578 to address a 

number of issues, and are excited about the changes a union contract will bring. 

"We are elated," said Daniel Williams, president of the RWDSU Local 578. "We 

f1!c :i:CiiU$crs,kdccant/Ocsktop/;-.;cws%20"";,,20Ncw%?:01!lmOJs%20McmbcJS%1Dat%20Americold%20Wm%20First%10Contract%20_'%20RWDSU html[6/14120!7 9.05.05 AM] 
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News I ~ew lllmms Members at Amcnco!d Wm First Contract 1 RWDSU 

won because we all stood together. Standing shoulder to shoulder with our 

community, Americold workers together won a great contract." 

Americo!d is a leader in temperature-controlled warehousing and logistics to the 

food industry, offering the most comprehensive warehousing, transportation, and 

logistics solutions in the world. Based in Atlanta, Americold owns and operates 

over 182 temperature-controlled warehouses in the United States, Australia, New 

Zealand, China, Argentina, and Canada. 

"We're proud of the work we do for Americold," said Ron McBride, a steward and 

worker at the Americold Drive facility. "With negotiations behind us, our union can 

remain focused on building a secure, stable future for our members, their families 

and our community. 

The new contract, effective June 30, 2013, marks the first contract for Americold 

workers who have long complained of a taxing and confusing scheduling system 

with five different shifts and lack of health insurance benefits. 

"We are extremely happy to have the RWDSU behind us," said Ken Dougherty, a 

steward at the Caron Road facility. "Other area employers are closing or cutting 

back, but as RWDSU members, we were able to negotiate wage increases and 

benefit improvements." 

"When we launched the Americold organizing campaign 16 months ago, very few 

people thought it would be such a great success," said Dennis Williams, Senior 

Business Representative for the RWiDSU Central States Council. "We congratulate 

the workers at Americold on their victories, and we know this contract will become 

a great beginning for this industry in Illinois." 

RWDSU Local 578 also represents workers at the Del Monte Foods Distribution 

Center also in Rochelle, Illinois. 

MEDIA PRESS 

Media Relations 

News 

RWDSU Press 

RWDSU Record 

NEWS 

RWDSU Meets 

With Allies At UNI Commerce Global Conference 

fi!c"i 11Ci 1lJsers/kdecanl!Dcsktop/News%20 .. %20New%20!11inms%20Membtrs%20at%20Americold%20Win%20First%20Contracl%20_%20RWDSli html[6i14/10!7 9.05.05 AM] 
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Nc»s, New 1111!101~ lvkrnb<:!$ m Amcn~old Wm Fmt Conlr<'K1: RWDSU 
85 

Mr. SABLAN. And finally, I would like to enter for the record -- 

I ask unanimous consent to enter for the record a letter from Mary 

Kay Henry on behalf of the 2 million members of SEIU opposing 

the three bills before us today. She notes these bills will lead to 

complete subversion of their elections. 

Chairman WALBERG. Hearing no objection, that will be inserted. 

[The information follows:] 

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Stronger Together 

M'\RY KAY HENRY 

lnternanonal PresJdent 

GERRY HUDSON 

lnternanonn! Secretary-Treasurer 

NEAL BISNO 

Executwe VICe Pres/(:fent 

LUISA BLUE 

Execunve VKe PreSident 

HEATHER CONROY 

hecuuve V1ce Pres1dent 

SCOTT COURTNEY 

ExecutNe Vice PresKk'nt 

LESUE FRANE 

Exa:LJ!M' Vitc President 

VAlARIE LONG 

ExccutJVeVicePresldent 

ROCIOsAf.NZ 

Executwe Vice President 

SEIMCE EMPLOYEES 

INTERNATIONAL UNION 

CT\A( CLC 

1800 Massftchusetts Ave , NW 

Washington, DC 20036 

202.730.7000 

wv.w SEIU org 

June 13,2017 

Dear Representative: 

On behalf of the two million members of the Service Employees International Union 

(SEIU), I am writing to express our strong opposition to three deceptively named bills being 

considered by the House Education & Workforce Subcommittee on Health, Employment, 

Labor and Pensions: H.R. 2723, the "Employee Rights Act"; H.R. 2776, the "Workforce 

Democracy and Fairness Act"; and H.R. 2775. the 11Employee Privacy Protection Act. 11 Each 

bill is an absolute attack on working families and designed to severely limit the ability of 

workers to organize in an effort to limit their voice in the workplace. 

H.R. 2723- "Employee Rights Act" 

H.R. 2723 does anything but protect employees who are exercising their rights under the 

National labor Relations Act (NLRA) to organize. The most extreme element of this 

legislation is its complete subversion of fair elections by requiring unions to win a majority 

of eligible voters. instead of current law where the union must win a majority of those who 

vote in the election. This would mean that every nonwvoter is counted as a Hno" vote. This 

change to union elections makes no sense. as union elections are modeled after the U.S. 

election system where the majority of the participating vote wins the election. There is no 

reason to create an entirely new and unprecedented procedure of voting, especially one that 

would only target workers and the union they wish to join. The bill would also prohibit 

employers from voluntarily recognizing a union and mandates Board elections even when 

there is mutual agreement between the parties. There is no intent behind this change to 

current law other than to totally and completely undermine the ability of working people to 

organize. 

The bill would create new rules for union elections with the sole purpose of preventing 

union representation. The legislation would require a new union election every three years at 

workplaces where more than 50 percent of current employees didn't vote in the original 

cettification election, effectively requiring a union to be in constant election mode. High 

turnover workforces would be especially susceptible to decertification, meaning that the 

union would have to spend more time on elections than on its core functions of 

representation, bargaining, workforce training, etc. of the workers in that profession. Current 

law allows for workers to oust their union through a decertification election if only 30 

percent of workers file a petition for an election after contract expiration. There is already a 

process for workers to expel a union if they wish, but as previously stated, the bill is 

designed to weaken the power of workers. not enhance it. 

H.R. 2776- '•Workforce Democracy and Fairness Act" 

H.R. 2776 does the exact opposite of its misleading title, and would erode democracy in the 

workplace and eliminate fairness by giving employers the ability to delay elections and 

gerrymander the voting composition of bargaining units. The legislation would eliminate any 

"fairness" in the workplace by imposing arbitrary waiting periods on union elections. The 

35-day delay prior to an election and 14-day delay prior to a pre-election hearing would give 

unscrupulous employers more time to use any means, be they legal or illegal, to pressure 

employees into abandoning their mission to organize into a union. There is no reason or 
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Page 2 

June 13, 2017 

justification for these delays, only to weaken employees' power in the workplace and decrease fairness. 

Furthermore, the legislation would encourage employers to stall union election with frivolous litigation, which 

would backlog the National Labor Relations Board (NLRB) by requiring it to rule on all pre- and post-election 

disputes before a union is certified. The provision could cause workers to wait months or years in order to have an 

election. Make no mistake: this legislation is a deliberate attack on the ability of workers to organize and combine 

their collective power in the workplace. 

And yet the bill is made even worse by allowing employers to gerrymander the bargaining unit against unions. 

Under this legislation, employers could expand the pool of eligible voters to employees who expressed no interest 

in joining a union in an effort to undermine the election for the workers who have expressed interest in organizing 

into a union. Combined with H.R. 2723 the employer could expand the pool of voters to employees who have no 

interest in even voting in the election, giving the employer the direct ability to rig an election against workers. 

There is no democracy and fairness present in this legislation, only deception and impairment of workers' ability 

to organize. 

H.R. 2775- "Emoloyee Prjvacy Protection Act" 

H.R. 2775 does not protect employee privacy and simply tips the scale in the workforce further against workers 

who want to organize. The bill would prohibit unions from having access to the same employee contact 

information as the employer for the purpose of communicating during the union election campaign. Information 

available to the union would be only the employee's name and one form of contact information. Currently, the 

NLRB's election rule requires the employer to share the home addresses, available personal email addresses, and 

available home and personal cell telephone numbers. To be clear, this information is available only for the 

purposes of the representation proceeding and not for other matters. This creates an imbalance in the election 

proceedings that puts workers who want to make an informed decision at a disadvantage before they vote in the 

proceedings, and gives the employers far too much leverage to be able to berate or misinform workers who want 

to exercise free choice. Adding insult to injury, the bill micromanages the means and process by which unions get 

the list of workers of the determined bargaining unit in order to communicate with them during the election. 

These provisions combined greatly weaken the organizing capacity of workers and are designed to delay or 

obstruct a union's ability to communicate with workers and inform them of their rights under the NLRA during an 

election. 

Conclusion 

These bills under consideration at the hearing claim to protect the rights of workers under the NLRA when in fact 

they would diminish their rights and remove many essential rules to ensure fairness when workers organize. The 

ability to have a voice in the workplace has been a cornerstone of the American middle class, and these bills 

would erode that promise. We strongly urge you to oppose the bills in this hearing and in any other proceeding 

before the Congress. If you have any questions, please reach out to John Gray atjnhn.gray@seiu.org or (202)-

730-7669. 

Sincerely, 

MKH:JG:jf 

opeiu#2 

afl-cio, clc 

) 
88 

Mr. SABLAN. And, Mr. Chairman, despite that we may have disagreements, again, I am very grateful that you’re following over 

regular order. 

I want to thank witnesses; we may have disagreements, but I 

think those disagreements are honest, and I respect that you took 

the time to prepare and come today. I apologize for the delay, it 

was unavoidable. 

And I yield the balance of my time. 

Chairman WALBERG. I thank the gentleman. 

And I too want to thank the witnesses. You’ve added value to our 

discussions, and we know where to find you if we need any further 

information as well on either side of the issue. 

Let me just state very clearly for the record that this is not an 

attempt to eliminate unions, not at all. And sometimes it’s classified as an either/or. That isn’t the case. 

From my own experience, and subsequent to my time working at 

U.S. Steel South Works number two electric furnace, right down on 

the borders of Lake Michigan, unions have had some extremely 

positive impacts. And going back to the steel mills now and seeing 

the difference in some of the working conditions that I just took for 

granted, I’m, frankly, worried about it. It’s changed. 

And there has been positive impact, I know, as a result of union 

efforts for their workers. But seeing the graph that was brought by 

Mr. Norcross earlier on, I would contend that there’s also a rationale there that says that unions and the impact, the positive impact 

they’ve had, may indeed have had an interesting impact of workers 

seeing them work themselves out of their job. The benefits that 

have been achieved, and now saying, tell you what, like Ms. Cox, 

I would at least like to know how it’s going to be better for me than 

what I have right now. And if indeed that justifies the union dues 

that will be taken out and also how those dues will be used relative 

to political efforts, et cetera. 

And I think that’s what the three bills we’re looking at today are 

going toward in saying let them make their choices with the fullest 

information possible, as fairly as possible from both sides, not 

rushed, not jammed through. And the people that are truly interested are the ones who will make the decisions on what comes forward. That’s all we’re asking. 

And this indeed is regular order in the process of discussion. So 

we’ll continue it on, we’ll see where it takes us from here. The bottom line, we want to make sure that everything we do here promotes more safer, more secure and increased number of opportunities of choice for employees to have with employers as well. And 

so we’ll continue looking at this. I want to again say thank you. 

With no further issues to come before the subcommittee today, 

I call this meeting adjourned. 

[Additional submissions by Chairman Walberg follow:] 

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June 13,2017 

The Honorable Tim Walberg 

Chainnan 

Committee on Education and the Workforce 

Subcommittee on Health, Employment, Labor 

and Pensions 

U.S. !louse of Representatives 

Washinb'lon, DC 20515 

Dear Chairman Walberg and Representative Wilson: 

The Honorable Joe Wilson 

Committee on Education and the Workforce 

Subcommittee on Health, Employment, Labor 

and Pensions 

U.S. House of Representatives 

Washington, DC 20515 

I write to share the National Retail Federation's (NRF) strong support for the Workforce Democracy 

and Fairness Act (I·I.R. 2776) and the Employee Privacy Protection Act (H.R. 2775). Reining in the 

unprecedented activism at the National Labor Relations Board (NLRB) over the past eight years is a top 

priority for retailers, and we appreciate your attention to these important issues. 

NRF is the world's largest retail trade association, representing discount and department stores, home 

goods and specialty stores, Main Street merchants, grocers, wholesalers, chain restaurants and Internet 

retailers from the United States and more than 45 countries. Retail is the nation's largest private sector 

employer, supporting one in four U.S. jobs- 42 million working Americans. Contributing $2.6 trillion to 

annual GOP, retail is a daily barometer for the nation's economy. 

Retailers applaud your efforts to reverse the harmful and unnecessary changes made by the NLRB in 

its unprecedented ambush elections rule and Specialty Healthcare decision. H.R. 2776 would codiry an 

election system that has worked well for decades and restore balance in the process governing union 

organizing. Specifically, H.R. 2776 would require a minimum of35 days before a union election can be held 

to ensure employees have an opportunity to hear from both sides and make an informed decision. It also 

would ensure employers are able to participate in a fair election process by providing employers with at least 

14 days to prepare their case to present before an NLRB election officer. In addition, the legislation would 

restore the traditional standard tor detennining bargaining units, providing relief from the Board's 

unprecedented sanctioning of disruptive micro-unions. 

H.R. 2775 would provide employees with greater control over the personal information that is 

provided to union organizers~ which was significantly expanded under the NLRB's ambush elections rule. 

Employers would be given seven days to provide employee names as required by law, but it would leave the 

question of what other one piece of information is provided up to the discretion of individual employees. 

Both bills are critical to ensuring employee and employer rights are protected and restoring balance 

in the election process. We look forward to working with you to advance H.R. 2776 and H.R. 2775 in the 

House. 

Sincerely, 

~~- Senior Vice President 

Government Relations 

cc: Members of the House Education and the Workforce Committee 

12DO 
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June 14, 2017 

The Honorable Tim Walberg 

Chairman 

Subcommittee on Health, Employment, labor and Pensions 

Committee on Education and the Workforce 

2436 Rayburn HOB 

Washington, O,C. 20515 

The Honorable Gregorio Kilili Camacho Sablan 

Ranking Member 

Subcommittee on Health, Employment, Labor and Pensions 

Committee on Education and the Workforce 

2411 Rayburn HOB 

Washington, DC 20515 

Chairman Walberg and Ranking Member Sablan, 

1700 North MoOfJ;> Stn~E't, Slut"' 2250. Arlmgton< VA 22209 

Thank you for holding a legislative hearing on H.R. 2776, Workforce Democracy and Fairness Act and 

H.R. 2775, the Employee Privacy Protection Act. Both bills represent needed reforms to the National 

Labor Relations Act. 

By way of background, the Retail Industry Leaders Association (RILA) is the trade association of the 

world's largest and most innovative retail companies. RILA members include more than 200 retailers, 

product manufacturers, and service suppliers, which together account for more than $LS trillion in 

annual sales, millions of American jobs, and more than 100,000 stores, manufacturing facilities, and 

distribution centers domestically and abroad. 

As R!LA members are leaders in the workforce arena, we offer countless ways for employees just 

stepping into the workforce to learn new skills. Workforce training and flexibility is the hallmark of the 

industry, and one of the ways in which retail employees learn the ropes is by cross-training in different 

departments. learning new ski!l-sets leads to upward mobility but bad policy is threatening that 

opportunity. Unfortunately, due to policies adopted by the Obama Administration and its National 

Labor Relations Board, like the decision in Specialty Heafthcare and the ambush election rule, 

opportunities for employees to move through the ranks have been stifled through the NLRB's top-down 

regulatory approach. 

Specifically, the NLRB upended years of established law in favor of allowing micro-bargaining unitssmall units of an entire store to organize without the consent of the majority of workers at a 

company. This misguided decision allows unions to gerrymander a workplace to establish micro-unions, 

creating unnecessary divisions within the workforce, undermining staff flexibility and impeding retailers' 

ability to meet the expectations of their customers. In addition, the Board's ambush election rule 

shortened election time for elections reducing preparation by employers to present vital information to 

their employees. The rule also required the employer give sensitive employee contact information to 

union organizers- potentially infringing on employees' privacy rights and exposing them to harassment 
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and intimidation. Taken together, these actions by the Board severely limit both employer flexibility to 

operate effectively, as well as opportunities for growth for the workforce. 

For these reasons, RILA strongly supports H.R. 2776, Workforce Democracy and Fairness Act and H.R. 

2775, the Employee Privacy Protection Act, which will restore commonsense policies that support 

growth, innovation and opportunity in the retail industry. 

Sincerely, 

Evan Armstrong 

Vice President, Government Affairs 
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Anociatod Builder$ Btld C .. ullractorll, Inc. 

June 14,2017 

The Honorable Tim Walberg 

Chairman 

U.S. House Subcommittee on 

Health, Employment, Labor, and Pensions 

U.S. House of Representatives 

Dear Representatives Walberg and Sablan: 

The Honorable Gregorio Kilili Camacho Sablan 

Ranking Member 

U.S. House Subcommittee on 

Health, Employment, Labor, and Pensions 

U.S. House of Representatives 

On behalf of Associated Builders and Contractors (ABC), a national construction industry trade 

association with 70 chapters representing more than 2!,000 members, I am writing to express our support 

for H.R. 2776, the Workforce Democracy and Fairness Act, and H.R. 2775, the Employee Privacy 

Protection Act; both of which would undo the harmful changes made by the National Labor Relations 

Board (NLRB) concerning union representation. We thank the Subcommittee on Health, Employment, 

Labor and Pensions tor calling a hearing on how to reform and improve the National Labor Relations Act. 

H.R. 2776 would give employees an appropriate amount of time to make an informed decision on 

whether to vote for union representation by allowing them at least 35 days between the filing of a petition 

and a vote. It would also ensure employers have the ability to access counsel by providing them with at 

least 14 days to prepare their case before an NLRB election officer. In addition, the bill would take the 

important step of reinstating the longstanding standard of a bargaining unit which was radically altered by 

the NLRB under its decision in Specialty Healthcare. 

Under Specialty Healthcare, the Board opened the door for the fonnation of "micro-unions," or small, 

fractured bargaining units. Because of rigid union job classifications, these new units would prevent 

workers from cross-training and developing workplace skills to further their careers. 

H.R. 2775 prevents unions from accessing sensitive and private data from employees and allows workers 

to determine which personal information can be shared. This allows employees to make an informed 

decision without coercion or pressure from a union. 

We thank Subcommittee Chairman Tim Walberg (R-MN) and Rep. Joe Wilson (R-SC) for introducing 

H.R. 2776 and H.R. 2775, respectively. We encourage Congress to move these bills swiftly to protect 

workers and restore balance in labor and employment policies. 

s~ 

Kristen Swearingen 

Vice President of Legislative & Political Affairs 

440 F1rst St N.W., Suite 200 • Washington, D.C. 20001 • 202.595.1505. www.abc.org 
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Americans for Tax Reform and The Center for Worker Freedom 

Support The Employee Rights Act (ERA) 

Rep. Phil Roe (R-Tenn.) has introduced the Employee Rights Act (H.R. 272·3), important legislation 

that would protect workers from union abuses and ensure fair representation in the workplace. 

The ERA would include important revisions to current labor law, including: 

1) Guaranteeing a secret-ballot vote in unionization elections 

2) Requiring unions to regularly run for re-certification 

3) Forbidding union bosses from spending dues on anything besides collective bargaining without 

the express consent of the worker 

Americans for Tax Reform (ATR) president Grover Norquist praised the ERA, saying in a 

statement: "For too long union bosses have been allowed to bully and intimidate people into voting 

for unionization. Secret-ballot elections will help ensure union elections are actually free and fair." 

"These reforms arc long overdue," agreed Matt Patterson, executive director of the Center for Worker 

Freedom (CWF). "Fewer than 10 percent of union members ever had a say in 

that representation. Making unions go regularly before their members and earn their vote will make 

their leadership more honest and less political." 

"This is not an 'anti-union' bill," assured Patterson. "But it is an anti-bullying bill, in that the power 

of union bosses to stalk and intimidate would be greatly curtailed. If unions win an election, fine, but 

let them do it fair and square." 

The full text of the ERA can be read here" 

••• ATR and CWF applaud this legislation, and urge all Representatives to support it. ••• 

The Center for Worker Freedom is a special project of Americans for Tax Reform 

### 

For more information contact 

Olivia Grady 
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Testimony of Brent Southwell, CEO, PJS Houston 

before the U.S. House Subcommittee on 

Health, Employment, Labor and Pensions 

June 14, 2017 

Chairman Walberg and Members of the Subcommittee: 

2303 Nance Street 

Houston, TX 77020 

office: 713.850.0287 

fax: 713.963.9420 

www.pjs.com 

Thank you for the opportunity to testify in support of legislation to amend our federal 

labor laws. I am the CEO of Professional Janitorial Service Houston, Inc. (PJS). My 

testimony is offered to give members of the subcommittee a business perspective on 

this important issue. 

PJS has been the target of a decades-long assault by the Service Employees 

International Union (SEIU), a union sent to Texas from Washington, DC to destroy our 

business because we would not allow the union to speak for our employees without a 

secret ballot election as prescribed by the National Labor Relations Act. PJS has 

continued to grow despite every effort by the federal government to aid the union, and 

despite any effort by the government to act impartially toward PJS, or even to consider 

my company's impeccable reputation with its employees. 

PJS has been forced to fight a corrupt national union, multiple federal agencies that 

positioned themselves as tools for the union, and an Administration that used unilateral 

regulatory changes and high-level directives to target my company. In any other 

context, the actions taken against my company for rnore than a decade by national 

labor unions and my own federal government would constitute unlawful conspiracy, and 

would certainly result in major civil and criminal penalties. Even in the face of 

tremendous and sometimes outrageous protections provided to unions under the 

National Labor Relations Act, PJS won a disparagement lawsuit against the SEIU this 

year in which we were awarded a $5.3 million judgment for the damage it caused trying 

to drive us out of business. 

I. THE PROBLEM 

Employer-employee relations have evolved. The Wagner Act of 1935 was intended to 

protect employees in a different time who faced conditions that are only rarely found in 

any significant American business today. Modern-day employers must invest as much 

into retaining and developing employees in tight labor markets as they invest in any 

other part of their operations. The fact that businesses must operate under a national 

law that allows outside organizations to interfere in their relationships and operations 

has always been odd, a problem addressed only marginally by the Taft-Hartley Act of 

1947. The fact that the same law allows these organizations to impose themselves on 
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employees in the absence of secret ballot elections is worse than odd-it is an affront to 

personal liberty. The time to modernize the NLRA is a generation overdue. 

II. SOLUTIONS 

Legislation before the subcommittee will improve some of the most important problems 

of the NLRA. Most importantly, a provision would prevent so-called "ambush elections," 

a new privilege granted to unions by the U.S. Department of Labor to prevent employers 

and employees who don't want unions from prevailing in union elections. Another 

provision will reverse new regulations that divide employee groups into micro units for 

purposes of organizing under the NLRA, and another will prevent new rules that compel 

employers to violate their employees' privacy rights by handing over their personal 

information to unions that will almost certainly harass them at their homes. I support 

these provisions as proper responses to overreach by the DOL and the National Labor 

Relations Board, and as minimally required action by Congress to restore integrity to 

our federal agencies. 

I also support efforts by the subcommittee to eliminate once and for all the "walk 

around" rule that was created unilaterally by the Occupational Safety and Health 

Administration (OSHA) for one purpose, which was to help the SEIU attack companies 

that resist its threats and coercion. To understand how corrupt our employment 

agencies have become, I encourage members of the subcommittee to look more closely 

at this issue, including to demand all records and communications that went into this 

new regulatory effort. You will find the perfect example of the worst of government. 

Specifically, OSHA and the DOL established this regulatory "reinterpretation" to target 

my company. When PJS worked with the National Federation of Independent Business 

and the Pacific Legal Foundation to sue OSHA over this rule, we discovered that the 

new program had only been used against us. Given that our lawsuit resulted in a 

settlement whereby OSHA has agreed to drop the new rule, my understanding is that 

no other company in the nation was ordered-as PJS was-to allow union organizers 

who were disparaging the company into its works paces under color of official federal 

government business. 

Additionally, I encourage the subcommittee to go further in its overall reforms. For 

example, are you aware that the NLRB is forcing companies like PJS to eliminate 

mediation clauses in their employment agreements as a condition for the agency to 

dismiss unfair labor practice (ULP) charges? This is despite federal appellate court 

rulings that prevent this action by the agency. This practice, which continues under the 

nose of Congress, creates a fool-proof strategy for unions where they can file ULP 

claims without merit for the sole purpose of positioning the NLRB to interfere with 

private employment contracts. This abuse must be eliminated. 

Ill. LARGER REFORM 

Business owners across the country are turning their attention to broader reforms that 

are needed to reign in abuses by unions, and to terminate corrupt collaborations 
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between unions and government. As a result, I encourage Congress to look at a large 

and growing problem that has a simple and elegant solution. 

Because unions are failing to attract members, they are resorting to another strategy. 

This entails using private arrangements with government agencies to create permanent 

revenue streams for the unions from the paychecks of government employees. The 

revenues are then used to fund private sector campaigns-outside the limits of the 

NLRA-to collude with employers who will turn over their employees without elections, 

and to destroy employers who won't. 

In my case, the SEIU used funds from the paychecks of city employees in Houston to 

fund its attack on PJS. The union joined with AFSCME to form a joint venture in 

Houston called "HOPE" (or Houston Organization of Public Employees), and then 

convinced the city to collect dues for them through payroll deductions. The SEIU then 

used the funds to open an office in Houston from which they now run campaigns 

against local businesses. This includes pressure on restaurants and small businesses 

to pay a $15 minimum wage, and boycotts and other actions intended to damage local 

employers. 

This is how the SEIU has maintained an assault against PJS for more than a decade. 

The SEIU filed frivolous lawsuits against PJS, retained a public relations firm to spread 

false claims about us, and retained lobbyists in Austin to defend these actions with state 

legislators. It has also engaged elected officials-some who are serving in this 

institution-to sign letters to my customers that encourage them to terminate their 

contracts with PJS and give them to companies favored by the unions. Finally, the 

union filed baseless charges against PJS with OSHA and the NLRB to ensure federal 

assistance in the harassment campaign against us, including to claim we are being 

"investigated" by government. 

Here is somethiQgje£!i~lators must understand: Business leader~.ilcross America 

~H~11e they h<l\1~-b~.D.EQ!'lDdo_O_e,d _l:>y lawrml!s.§lr1UlD9.ar~Jef!JQ_figh_ti]g§!in~t thes_e. 

!J!]i<Jnl:ll:>u~es on their own. 

But there is an easy way to end this abuse. Whether or not this subcommittee has 

jurisdiction over public sector unions, every member can encourage President Trump to 

take executive action to reverse President Kennedy's Executive Order 10988 (1962), 

which provides authorization for federal agencies to withhold dues for public sector 

unions from federal employee paychecks. 

IV. CONCLUSION 

Your efforts today give hope to responsible employers that federal employment laws 

can be reformed to meet the demands of our modern economy, and to protect the rights 

of employees from union abuse. On behalf of the nation's large independent employers 

who value their employees, we appreciate your commitment to these issues. 

-#-
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Heritage Action Supports Rep. Phil Roe's Employee Rights Act 

This month, Rep. Phil Roc (R-Tenn.) introduced the Employee Rights Act (H.R. 2723). This 

legislation would protect workers from union pressure by putting power in the hands of 

employees and making union leaders more accountable to their members. As the Heritage 

Foundation notes, if union bosses "were angels, such changes would be unnecessary" but "since 

they are not" new protections are necessary. 

Heritage explains the legislation would guarantee employees the rights to: 

Vote privately in a secret ballot election before forming a union; 

Opt out of having their personal contact information provided to a union during an 

organizing drive; 

Hear from employers at least 40 days prior to voting in a union election; 

Vote in a secret ballot election before accepting a contract or going on strike; 

Vote regularly on re-electing their union; 

Decide whether their union can spend their dues on matters unrelated to collective 

bargaining; and, 

Be free from union interference or extortion in exercising their legal rights. 

Workers should not be pressured or coerced by unions or union bosses to take actions that 

undermine their rights. Protecting the voting rights of employees is essential: 

"Under general union representation, employees relinquish their individual negotiating 

authority to a union. The union becomes the sole representative of the employees in negotiations 

with their employer. Unionized employers must negotiate employment terms with the union and 

the union alone. They may not bargain with individual workers." 

Though the purpose of unions is ostensibly to protect workers, they often fail to do so because 

they are motivated by the "institutional objectives" of expanding in size, income and influence. 

They want "contracts that protect their institutional powers.'' When the interests of unions come 

in conflict with the interests of workers, unions often make decisions that benefit them rather 

than employees. In an effort to expand power and influence, unions discourage secret ballot 

elections or work to eliminate them altogether; this results in the loss of privacy benefits for 

workers. Unions can also call for a strike without first consulting workers. 

Workers deserve a say in decisions that put their jobs at risk. The Employee Rights Act would 

amend this by requiring a secret ballot vote before a union can call a strike. Furthermore, the bill 

would solidify paycheck protection provisions, provide a mechanism for union re-certification, 

and finally criminalize union threats under federal law. 

David W. Kreutzer, Ph.D., Senior Research Fellow in Labor Markets and Trade in the Institute 

for Economic Freedom and Opportunity at The Heritage Foundation, issued this statement: 

"All union members deserve the protection of secret ballots and reasonable choice over who 

represents them. Ninety-four percent of union members are represented by unions for whom they 
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never voted. Let the dues-payers decide whether their union is an effective advocate for them or 

not. Competent, worker-focused union leadership has nothing to fear from members 'freedom to 

choose." 

The Employee Rights Act would solve many problems workers face today, including problems 

enshrined in current labor law. The bill would help restore a balance of power in the workplace 

from unions to workers and help ensure labor unions best serve the interest of employees, not 

union bosses. 

***Heritage Action supports the legislation, encourages Representatives to support it, and 

reserves the right to key vote in the future.*** 
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June 14,2017 

The Honorable Virginia Foxx 

Chairwoman 

Committee on Education and the Workforce 

U.S. House 

Washington, DC 20515 

The Honorable Robert C. Scott 

Ranking Member 

Committee on Education and the Workforce 

U.S. House 

Washington, DC 20515 

Re: Employee Privacy Protection Act (H.R. 2775), Workforce Democracy and Fairness Act 

(H.R. 2776), Representation Fairness Restoration Act (H.R. 2629) and Employee Rights Act 

(H.R. 2723) 

Dear Chairman, Ranking Member & Members of the U.S. House Committee on Education and 

the Workforce, 

On behalf of the Workforce Fairness Institute (WFI), an organization devoted to educating 

workers, their employers, employees and citizens about issues affecting the workplace, we write 

today in strong support of two recently introduced pieces of legislation: Employee Privacy 

Protection Act (H.R. 2775) and Workforce Democracy and Fairness Act (H.R. 2776). 

The Employer Privacy Protection Act assures worker privacy is protected, which has been put at 

risk by the Obama-era National Labor Relations Board (NLRB). We are very pleased that H.R. 

2775 would enact safeguards for employees so that their personal information cannot be used 

improperly by union organizers. 

As it stands now, labor organizers have access to far too much employee information, such as 

workers' names, phone numbers, email addresses, home addresses, and work schedules and 

locations. By allowing employees the ability to detern1ine which contact information is shared 

by their employer and their preferred method of communication, this legislation will once again 

give workers the power over their personal information. 

Further, the Workforce Democracy and Fairness Act would roll back the NLRB's decision in 

2015 to codify ambush elections, which unnecessarily expedites labor elections affording 

workers as few as II days to determine whether to support or oppose a collective bargaining 

unit. 
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By protecting workers' rights and setting the minimum time for labor elections at a reasonable 

35 days, employees will have sufficient time to ask questions and receive answers concerning the 

union election process. Additionally, employers are provided 14 days to prepare their case to an 

NLRB election representative, which also gives them the necessary time to appropriately engage 

concerning workplace organizing efforts. 

H.R. 2776 also addresses the NLRB's ruling in Specialty Healthcare, an egregious decision 

handed down in 20 II that allowed for the formation of so-called micro-unions. Micro-unions 

are disruptive to workplaces and make it harder for employers to run their businesses, while 

allowing labor organizers to place immense pressure on workers. 

For the record, the Workforce Fairness Institute would also like to raise the importance of several 

additional pieces of legislation, including the Representation Fairness Restoration Act and 

Employee Rights Act. 

Specifically, the Representation Fairness Restoration Act would overturn the aforementioned 

micro-union decision requiring labor organizers to win elections with a majority of the 

workforce voting in favor of fonning a collective bargaining unit. Union organizers should not 

be allowed to hand-pick and sort sub-groups of employees more favorable to representation. 

These allowances do not benefit workers and certainly don't benefit our nation's job creators. 

The legislation discussed in this correspondence are necessary to give power back to workers 

after eight years of unilateral actions by an activist and biased NLRB working on behalf of Big 

Labor. The scales in America's workplaces have been grossly tipped in favor of union bosses, 

and against America's workers and business owners. 

We strongly support the Employee Privacy Protection Act and Workforce Democracy and 

Fairness Act, and urge each bill receive a prompt vote from the members of the U.S. House 

Committee on Education and the Workforce. 

Sincerely, 

Heather Greenaway 

Workforce Fairness Institute 

#It# 
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Please see the below letter issued today by the Workforce Fairness Institute (WFI): 

June 14,2017 

The Honorable Virginia Foxx 

Chairwoman 

Committee on Education and the Workforce 

U.S. House 

Washington, DC 20515 

The Honorable Robert C. Scott 

Ranking Member 

Committee on Education and the Workforce 

U.S. House 

Washington, DC 205 J 5 

Re: Employee Privacy Protection Act (H.R. 2775), Workforce Democracy and Fairness Act 

(H.R. 2776), Representation Fairness Restoration Act (H.R. 2629) and Employee Rights Act 

(H.R. 2723) 

Dear Chairman, Ranking Member & Members of the U.S. House Committee on Education and 

the Workforce, 

On behalf of the Workforce Fairness Institute (WFI), an organization devoted to educating 

workers, their employers, employees and citizens about issues affecting the workplace, we write 

today in strong support of two recently introduced pieces of legislation: Employee Privacy 

Protection Act (H.R. 2775) and Workforce Democracy and Fairness Act (H.R. 2776). 

The Employer Privacy Protection Act assures worker privacy is protected, which has been put at 

risk by the Obama-era National Labor Relations Board (NLRB). We are very pleased that H.R. 

2775 would enact safeguards for employees so that their personal information cannot be used 

improperly by union organizers. 

As it stands now, labor organizers have access to far too much employee information, such as 

workers' names, phone numbers, email addresses, home addresses, and work schedules and 

locations. By allowing employees the ability to determine which contact information is shared 

by their employer and their preferred method of communication, this legislation will once again 

give workers the power over their personal information. 

Further, the Workforce Democracy and Fairness Act would roll back the NLRB's decision in 

2015 to codify ambush elections, which unnecessarily expedites labor elections affording 
102 

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workers as few as II days to detcnnine whether to support or oppose a collective bargaining 

unit. 

By protecting workers' rights and setting the minimum time for labor elections at a reasonable 

35 days, employees will have sufficient time to ask questions and receive answers concerning the 

union election process. Additionally, employers are provided 14 days to prepare their case to an 

NLRB election representative, which also gives them the necessary time to appropriately engage 

concerning workplace organizing efforts. 

H.R. 2776 also addresses the NLRB' s ruling in Specialty Healthcare, an egregious decision 

handed down in 20 II that allowed for the fonnation of so-called micro-unions. Micro-unions 

are disruptive to workplaces and make it harder for employers to run their businesses, while 

allowing labor organizers to place immense pressure on workers. 

For the record, the Workforce Fairness Institute would also like to raise the importance of several 

additional pieces of legislation, including !he Representation Fairness Restoration Act and 

Employee Rights Act. 

Specifically, the Representation Fairness Restoration Act would overturn the aforementioned 

micro-union decision requiring labor organizers to win elections with a majority of the 

workforce voting in favor of forming a collective bargaining unit. Union organizers should not 

be allowed to hand-pick and sort sub-groups of employees more favorable to 

representation. These allowances do not benefit workers and certainly don't benefit our nation's 

job creators. 

The legislation discussed in this correspondence are necessary to give power back to workers 

after eight years of unilateral actions by an activist and biased NLRB working on behalf of Big 

Labor. The scales in America's workplaces have been grossly tipped in favor of union bosses, 

and against America's workers and business owners. 

We strongly support the Employee Privacy Protection Act and Workforce Democracy and 

Fairness Act, and urge each bill receive a prompt vote from the members of the U.S. House 

Committee on Education and the Workforce. 

Sincerely, 

Heather Greenaway 

Workforce Fairness Institute 

### 

The Workforce Fairness Institute is an organi=ation committed to educating voters, employers, employees and 

citi::ens about issues qffecting the workplace. To learn more, please visit: http:·: H'll'lF.lrorkt!Jrce(oirness.com. 

To schedule an interview with a Workforce Fairness Institute representative, please contact 

Rvan Williams at (202) 677-7060. 
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Statement 

of the 

Independent Electrical Contractors 

Before the 

Subcommittee on Health, Employment, Labor, and Pensions 

United States House of Representatives 

Hearing on 

"Legislative Reforms to the National Labor Relations Act: H.R. 2776, 

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

Protection Act; and, H.R. 2723, Employee Rights Act." 

Washington, DC 

June 14, 2017 

lndcpendt•nt Electrical 

Contractors 

t Independent Electrical Contractors 

4401 Ford Avenue, Suite 1100 

Alexandria. VA 22302 

Ph 703,549.7351 • 800A56A324 • fx 703549 7448 

. www.lec1.org 
104 

[Whereupon, at 2:48 p.m., the subcommittee was adjourned.] 

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