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H.J. RES. 29, PROVIDING FOR CONGRESSIONAL 

DISAPPROVAL UNDER CHAPTER 8 OF TITLE 5, 

UNITED STATES CODE, OF THE RULE SUBMITTED 

BY THE NATIONAL LABOR RELATIONS 

BOARD RELATING TO REPRESENTATION 

CASE PROCEDURES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HEALTH, 

EMPLOYMENT, LABOR, AND PENSIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, MARCH 4, 2015 

Serial No. 114–4 

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

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

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

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(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

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 Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR, AND PENSIONS 

DAVID P. ROE, Tennessee, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

Buddy Carter, Georgia 

Glenn Grothman, Wisconsin 

Rick Allen, Georgia 

Jared Polis, Colorado, 

Ranking Member 

Joe Courtney, Connecticut 

Mark Pocan, Wisconsin 

Rube ́n Hinojosa, Texas 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Takano, California 

Hakeem S. Jeffries, New York 

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(III) 

C O N T E N T S 

Page 

Hearing held on March 4, 2015 .............................................................................. 1 

Statement of Members: 

Byrne, Hon. Bradley, a Representative in Congress from the State of 

Alabama ......................................................................................................... 1 

Prepared statement of ............................................................................... 3 

Polis, Hon. Jared, Ranking Member, Subcommittee on Health, Employment, Labor, and Pensions ........................................................................... 4 

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

Statement of Witnesses: 

Crawford, Ms. Brenda, Registered Nurse, Murrieta, CA .............................. 104 

Prepared statement of ............................................................................... 106 

King, Mr. Roger, Senior Labor and Employment Counsel, Washington, 

DC .................................................................................................................. 12 

Prepared statement of ............................................................................... 15 

Perl, Mr. Arnold E., Member, Glankler Brown, Memphis, TN ..................... 109 

Prepared statement of ............................................................................... 111 

Taubman, Mr. Glenn M., Staff Attorney, National Right to Work Legal 

Defense and Education Foundation, Inc., Springfield, VA ........................ 23 

Prepared statement of ............................................................................... 25 

Additional Submissions: 

Mr. King: 

Appendix A ................................................................................................ 151 

Exhibit B .................................................................................................... 153 

Exhibit C .................................................................................................... 154 

Appendix D ................................................................................................ 155 

Mr. Polis: ...........................................................................................................

Statement of Administration Policy ......................................................... 5 

Prepared Statement of United Steelworkers International Union ....... 8 

Wilson, Hon. Frederica S., a Representative in Congress from the State 

of Florida: 

Prepared statement of ............................................................................... 161 

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(1) 

H.J. RES. 29, PROVIDING FOR 

CONGRESSIONAL DISAPPROVAL UNDER 

CHAPTER 8 OF TITLE 5, UNITED STATES 

CODE, OF THE RULE SUBMITTED BY THE 

NATIONAL LABOR RELATIONS BOARD 

RELATING TO REPRESENTATION CASE 

PROCEDURES 

Wednesday, March 4, 2015 

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 10:01 a.m., in room 

2175, Rayburn House Office Building, Hon. Bradley Byrne presiding. 

Present: Representatives Foxx, Walberg, Guthrie, Byrne, Carter, 

Grothman, Allen, Polis, Courtney, Pocan, Bonamici, Takano, and 

Scott. 

Staff present: Ed Gilroy, Director of Workforce Policy; Marvin 

Kaplan, Workforce Policy Counsel; Nancy Locke, Chief Clerk; John 

Martin, Professional Staff Member; Zachary McHenry, Legislative 

Assistant; Daniel Murner, Deputy Press Secretary; Brian Newell, 

Communications Director; Krisann Pearce, General Counsel; Molly 

McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa 

Strawcutter, Deputy Clerk; Alexa Turner, Legislative Assistant; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority 

Clerk/Intern and Fellow Coordinator; Austin Barbera, Minority 

Staff Assistant; Amy Cocuzza, Minority Labor Detailee; Denise 

Forte, Minority Staff Director; Melissa Greenberg, Minority Labor 

Policy Associate; Eunice Ikene, Minority Labor Policy Associate; 

Brian Kennedy, Minority General Counsel; Richard Miller, Minority Senior Labor Policy Advisor; Veronique Pluviose, Minority Civil 

Rights Counsel; and Rayna Reid, Minority Labor Policy Counsel. 

Mr. BYRNE. A quorum being present, the Subcommittee on 

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

Good morning. I would like to extend a warm welcome to our 

guests and thank our witnesses for joining us. 

I would also like to note the continued absence of our dear friend, 

colleague, and subcommittee chair, Dr. Phil Roe. And I ask that all 

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2 

my colleagues continue to lift Dr. Roe and his family up in your 

prayers. 

We are here today to discuss House Joint Resolution 29, which 

provides for congressional disapproval under the Congressional Review Act of the National Labor Relation Board’s recently released 

rule that would drastically affect longstanding policies governing 

union elections. 

For those members who served on this committee in previous 

Congresses, our discussion today may elicit a dreadful sense of de ́ja 

vu. That is because for nearly four years the Obama National 

Labor Relations Board has sought to radically alter longstanding 

policies governing union elections. And as the board pursued this 

misguided effort, House Republicans, led by this committee, have 

consistently fought to defend the rights of American workers and 

job creators. 

The stated purpose of the board’s rule is to shorten the time between the filing of a petition for a union election and the election 

date. The board achieves this in a number of troubling ways, such 

as limiting the opportunity for a full and fair hearing of issues that 

may arise during the election proceedings and denying parties an 

opportunity to raise certain contested issues to the board. The 

board’s rule also grants union organizers unprecedented access to 

employees’ personal information. 

These are by no means modest changes, and they go far beyond 

simply modernizing the election process. In truth, the board’s real 

goal is to dramatically tilt the outcome of elections in favor of 

union leaders by ambushing employers and workers without allowing them to fully understand their decision. 

The American people are on the losing end of the board’s extreme 

culture of union favoritism. 

The board’s rule eviscerates the right of employers to speak freely to employees during an organizing campaign. Roughly 70 years 

ago, Congress amended the National Labor Relations Act to ensure 

employers have an opportunity to communicate with employees 

about union representation. 

Congress took this action not only to promote the voices of employers, but also to protect employee choice through a robust debate of important issues. And let’s make sure we understand this: 

this affects employees as much, if not more, than it affects employers. The board is overturning by executive fiat what Congress has 

expressly permitted by law. 

The board’s rule also severely cripples the right of each worker 

to make an informed decision. Deciding whether or not to join a 

union is a deeply personal choice. The outcome of that choice will 

affect workers’ wages, benefits, and other employment concerns for 

years. 

And as the board itself has held in a union environment workers 

can get more, they can get same, or they can get less. That is what 

the National Labor Relations Board has said. So this could affect 

workers in a negative way. 

Workers deserve an opportunity to get the facts and discuss 

these matters with their friends, family members, coworkers, and 

yes, their employers as well. Under this administration, the NaCEWDOCROOM with DISTILLER

3 

tional Labor Relations Board is determined to deny workers this 

fundamental right. 

Finally, adding insult to injury, the board is placing the privacy 

and safety of American workers and their families in jeopardy. 

There is absolutely no reason why union organizers need employees’ phone numbers, e-mail addresses, work schedules, and home 

addresses. Union coercion and intimidation is real, and it is our responsibility to help stop it. 

It is for these reasons this resolution is so urgently needed. In 

the past, Congress has tried offering a legislative response to the 

board’s ambush election rule—one that would ensure workers, employers, and unions continue to enjoy protections that have been in 

place for decades. 

I want to thank Chairman Kline for his continued leadership in 

this area. Unfortunately, our Democratic colleagues in the Senate 

refuse to stand with us. 

However, I am hopeful that with new allies in the Senate and 

the authority vested in Congress through the Congressional Review 

Act we will send to the President a resolution that reins in this activist board and rolls back this destructive regulatory scheme. The 

President will then have to decide whether he stands with big labor 

or with the nation’s workers and job creators. 

I urge the President and every member of Congress to choose the 

latter by supporting H.J. Res. 29. 

With that, I will now recognize the subcommittee’s ranking member, Representative Polis, for his opening remarks. 

Mr. Polis? 

[The statement of Mr. Byrne follows:] 

Prepared Statement of Byrne, Hon. Bradley, a Representative in Congress 

from the State of Alabama 

Good morning. I’d like to extend a warm welcome to our guests and thank our 

witnesses for joining us. I would also like to note the continued absence of our dear 

friend, colleague, and subcommittee chair, Dr. Phil Roe, and I ask all my colleagues 

to continue lifting Dr. Roe and his family up in your prayers. 

We are here today to discuss House Joint Resolution 29, which provides for Congressional disapproval under the Congressional Review Act of the National Labor 

Relations Board’s recently released rule that would drastically affect longstanding 

policies governing union elections. 

For those members who served on the committee in previous congresses, our discussion today may elicit a dreadful sense of deja vu. That’s because for nearly four 

years, the Obama National Labor Relations Board has sought to radically alter longstanding policies governing union elections, and as the Board pursued this misguided effort, House Republicans, led by this committee, have consistently fought 

to defend the rights of America’s workers and job creators. 

The stated purpose of the board’s rule is to shorten the time between the filing 

of a petition for a union election and the election date. The Board achieves this in 

a number of troubling ways, such as limiting the opportunity for a full and fair 

hearing of issues that may arise during the election proceedings and denying parties 

an opportunity to raise certain contested issues to the Board. The Board’s rule also 

grants union organizers unprecedented access to employees’ personal information. 

These are by no means modest changes and they go far beyond simply ‘‘modernizing’’ the election process. In truth, the Board’s real goal is to dramatically tilt the 

outcome of elections in favor of union leaders by ambushing employers and workers 

without allowing them to fully understand their decision. The American people are 

on the losing end of the Board’s extreme culture of union favoritism. 

The Board’s rule eviscerates the right of employers to speak freely to employees 

during an organizing campaign. Roughly 70 years ago, Congress amended the National Labor Relations Act to ensure employers have an opportunity to communicate 

with employees about union representation. Congress took this action not only to 

CEWDOCROOM with DISTILLER

4 

promote the voices of employers, but also to protect employee choice through a robust debate of important issues. The Board is overturning, by executive fiat, what 

Congress has expressly permitted by law. 

The Board’s rule also severely cripples the right of each worker to make an informed decision. Deciding whether or not to join a union is a deeply personal choice. 

The outcome of that choice will affect workers’ wages, benefits, and other employment concerns for years. Workers deserve an opportunity to get the facts and discuss these matters with friends, family members, coworkers, and yes, employers too. 

Under this administration, the National Labor Relations Board is determined to 

deny workers this fundamental right. 

Finally, adding insult to injury, the Board is placing the privacy and safety of 

America’s workers and their families in jeopardy. There is absolutely no reason why 

union organizers need employees’ phone numbers, email addresses, work schedules, 

and home addresses. Union coercion and intimidation is real and it is our responsibility to help stop it. 

It is for these reasons this resolution is so urgently needed. In the past, Congress 

has tried offering a legislative response to the Board’s ambush election rule, one 

that would ensure workers, employers, and unions continue to enjoy protections that 

have been in place for decades. I want to thank Chairman Kline for his continued 

leadership in this area. Unfortunately, our Democrat colleagues in the Senate refused to stand with us. 

However, I am hopeful with new allies in the Senate and the authority vested in 

Congress through the Congressional Review Act, we will send to the president a resolution that reins in this activist board and rolls back this destructive regulatory 

scheme. The president will then have to decide whether he stands with Big Labor, 

or with the nation’s workers and job creators. I urge the president and every member of Congress to choose the latter by supporting H.J. Res. 29. 

With that, I will now recognize the subcommittee’s ranking member, Representative Polis, for his opening remarks. 

Mr. POLIS. Thank you, Mr. Chairman. 

Today we are holding yet another hearing showing the backwards priorities of the majority. The Republicans are using a very 

rare legislative tool, called the Congressional Review Act, to subvert 

a common-sense reform of the National Labor Relations Board election process. 

But once again, like so many things that occur in this chamber, 

this is a process full of sound and fury, but signifying nothing, as 

Shakespeare would say. 

With your permission, I would like to submit to the record a 

statement of administrative policy? 

[The information follows:] 

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5 

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Insert offset folio 1 here 93545.001
6 

Mr. BYRNE. Without objection, so ordered. 

Mr. POLIS. In part, the statement of administrative policy from 

the President says that his senior advisors would recommend that 

he veto the resolution, meaning once again we are here with the 

process, talking about things that are not going to become law, 

that, like the Keystone XL bill that subverted the authority of the 

President to make the final determination with regards to whether 

that should occur, trying to bypass the President, obviously without 

the President’s permission. And there will not be a veto-proof majority in either chamber to undo this, as we saw with the recent 

vote in the Senate—very, very close indeed. 

So again and again, the majority is using words to attack the 

NLRB, holding more than 15 hearings and markups since the Republicans have taken control of Congress. 

The board is charged with protecting workers’ fundamental right 

to band together and exercise their voice in the workplace. Through 

the election process, workers can select representatives to bargain 

for better wages and working conditions. In fact, it is one of the answers to the growing income disparities that we face in our country 

is the ability of workers, as a stakeholder group, to organize and 

negotiate. 

But unfortunately, under the current rules some unscrupulous 

employers have undermined the rights of workers to organize by 

using frivolous litigation to endlessly delay union elections. Last 

year, for example, more than one in 10 elections were still unresolved after 100 days. That is what these rules address—these 

outlier cases that linger on and on. 

And there are examples of elections dragging out for more than 

a year. One example is a Mercedes-Benz dealership in California. 

The workers filed a petition for a union and the employer tried to 

stall at every opportunity, requesting extensions from the hearing, 

requesting extensions for filing the brief, appealing the decision of 

the board. Even after the election the employer continued to stall. 

So this process at this Mercedes-Benz dealership in California 

took 428 days. With this new rule, the process could have been 

shortened into 141 days—hardly an ambush, and much more— 

much preferable to a process that lasts for more than a year to 

both the employees as well as the employer. 

Now, why is delaying elections so bad? There is a direct and 

causal relationship between the length of time it takes to hold an 

election and illegal employer conduct. In other words, bad actors— 

the minority among the business community, but the ones that we 

are concerned with in this rulemaking process—stall the election 

progress so they have more time to illegally interrogate, threaten, 

manipulate, sometimes even fire employees in an attempt to coerce 

them to voting against the union—more than a year, in the case 

of the Mercedes-Benz dealership. 

Brenda Crawford, our witness here today, will share her story of 

exactly her experience. Some employers, like Ms. Crawford’s even 

sent anti-union text messages and e-mails. 

Now, another item that these rules address is that unions 

haven’t had access to the similar information as employers. It is almost like running a competitive election for Congress or state legislature, but the voter file can only be accessed by the Republicans 

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7 

or only accessed by the Democrats, and the other party can’t even 

solicit votes. Clearly, in a competitive election both sides need to 

be treated equally. 

To the extent there is privacy concerns, they need to be addressed equally across both the corporation as well as those seeking to organize. If information like e-mail addresses exist, if one 

side can access them, the other side needs to be able to access 

them. 

Many great employers, the vast majority, allow their employees 

to engage in fair elections, free from threats of unlawful coercion. 

And to be clear, this rule does nothing to affect those elections of 

the vast majority of good actors out there, and many companies 

and employees for whom this process works. 

However, for the bad actors out there this rule is absolutely necessary and imperative. We have a responsibility to protect workers’ 

rights, provide a level playing field for all parties to let employees 

decide how they want to organize. 

This modest, common-sense reform goes a long way in doing 

that. It will standardize practices that are already common through 

many parts of the country. It will allow workers to make their own 

decision without manipulation, threats, intimidation, or indefinite 

delays. 

Now, opponents of this rule have tried to characterize this rule 

as allowing elections on an extremely tight timeline, but the 

timeline those opponents have put forth is impossible under these 

rules. In every case, the employer is fully aware that organizing is 

occurring long before the petition is filed. 

Additionally, the rule in no way abridges employers’ free speech 

rights. Employers can continue to have the ability to talk to mandatory captive audience meetings in the workplace, e-mails, and 

messages, with any access to the contact information that they 

have. It simply allows those organizing to have access to similar information. 

One noteworthy element of using a Congressional Review Act 

challenge is that if it were to be passed, and even if it were signed 

by the President, which this will not be, it would forever prohibit 

the NLRB from enacting a substantially similar rule. So that 

means that all modernizations that we can agree upon, including 

allowing parties to file election documents electronically, as this 

rule does, would be off the table. It is an overly broad mechanism 

to go after a rule. 

Now, critics of this rule do not want a level playing field. They 

want a process that is open to delay and manipulation by bad actors. Rather than letting workers choose for themselves, bad actors 

would prefer to delay or prevent the choice from ever being made. 

Now, instead of wasting time on a hearing on a bill that will not 

become law to hobble an agency that is dedicated to protecting 

workers’ rights, we should be working together to find solutions 

that help Americans, help workers, help our families, help our 

economy thrive. 

Finally, I would like to submit for the record a statement from 

the United Steelworkers International Union opposing the use of 

this congressional review? 

[The information follows:] 

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8 

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Insert offset folio 2 here 93545.002
9 

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Insert offset folio 3 here 93545.003
10 

Mr. BYRNE. Without objection, so ordered. 

Mr. POLIS. Thank you. 

And I look forward to hearing from the witnesses today, and I 

yield back the balance of my time. 

[The statement of Mr. Polis follows:] 

Prepared Statement of Hon. Jared Polis, Ranking Member, Subcommittee 

on Health, Employment, Labor, and Pensions 

Today we are holding yet another hearing that shows the backwards priorities of 

the Majority. The Republicans are using an exceedingly rare legislative tool called 

the Congressional Review Act to reverse a common-sense reform of the National 

Labor Relations Board’s election process. Again and again the majority has attacked 

the work of the NLRB holding more than 15 hearings and mark-ups on the Board 

since they took control. 

The Board is charged with protecting workers’ fundamental right to band together 

and exercise their voice in the workplace. Through the Board’s election process, 

workers can select representatives to bargain for better wages and working conditions. But, under the current rules, some unscrupulous employers can undermine 

these rights by using frivolous litigation to endlessly delay union elections. 

Last year, for example, more than 1 in 10 election cases were still unresolved 

after 100 days. And there are many examples of elections dragging out for more 

than a year. As an example, at a Mercedes Benz dealership in California, the workers filed a petition for a union, and the employer stalled at every opportunity—requesting and receiving an extension for the hearing, requesting and receiving an extension for filing the brief, and appealing the decision to the Board. Even after the 

election, the employer continued to stall; this entire process ended up taking 428 

days. With the new rule, this process could have been shortened to 141 days, which 

is hardly an ambush and much preferable to a process that lasts for more than a 

year. 

Why is delaying elections so bad, you may ask? There is a direct and causal relationship between the length of time it takes to hold an election and illegal employer 

conduct. In other words, bad actors stall the election process so they have more time 

to illegally interrogate, threaten, manipulate, and sometimes even fire their employees to coerce them into voting against the union. Ms. Brenda Crawford, a witness 

here today, will share her story of exactly this experience, which is sadly all too familiar. 

There are also plenty of employers who stall elections in order to engage in legal 

coercion under the guise of ‘‘education.’’ They hold frequent mandatory, captive-audience meetings in order to offer their dire predictions for a unionized workplace. 

Some employers, like Ms. Crawford’s, even send anti-union text messages and 

emails. Unions have no similar access to employees. Right now, organizers only 

have access to employees’ home addresses, while employers have unfettered access. 

Many great employers allow their employees to engage in fair elections, free from 

threats or unlawful coercion. This rule will do little, if anything, to affect those elections. However for those bad actors out there, this rule is absolutely necessary. 

We have a responsibility to protect worker’s rights, and provide a level playing 

field for all parties involved. This modest, common-sense reform goes a long way in 

doing exactly that. It will standardize practices that are already common throughout 

many parts of the country. It seeks to allow workers to make their own decisions 

without manipulation, threats, or intimidation. 

Opponents of the rule have tried to characterize the rule as allowing elections on 

an extremely tight timeline, but the timeline these opponents have put forth is virtually impossible under these rules. Moreover, in essentially every case, the employer is fully aware that organizing is occurring long before the petition is filed. 

To state that employers will be blindsided and have only a few days to ‘‘make their 

case’’ is, at the very least, stretching the truth. 

Additionally, this Rule in no way abridges employers’ free speech rights. Employers will continue to have the ability to subject their workers to mandatory captive 

audience meetings in the workplace and a barrage of emails and messages as they 

have access to their contact information. 

One noteworthy element of using a Congressional Review Act challenge is that, 

if it were to pass and be signed by the President, it would forever prohibit the 

NLRB from enacting a substantially similar rule. So that means that simple modernizations that we can all agree upon—such as allowing parties to file election documents electronically, as this rule does—will be off the table. 

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11 

Critics of this Rule do not want a level playing field, instead preferring a process 

that is open to delay and manipulation. Rather than letting workers choose for 

themselves, bad actors would prefer to delay or prevent the choice from ever being 

made at all. This Rule reduces the opportunity for bad actors to play games with 

the process. 

Instead of wasting a time on a hearing on legislation intending to hobble an agency dedicated to protecting workers’ rights, we should be working together to find solutions that help Americans, their families, and our economy thrive. 

Finally, I would like to submit for the record a statement from the United Steel 

Workers International Union opposing this use of the Congressional Review Act and 

the Statement of Administrative Policy on S.J. Res 8. 

Thank you and I look forward to hearing from the witnesses today. 

Mr. BYRNE. Thank you, Mr. Polis. 

Pursuant to committee rule 7(c), all subcommittee 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 statements, questions 

for the record, and other extraneous material referenced during the 

hearing to be submitted in the official hearing record. 

It is now my pleasure to introduce our distinguished panel of witnesses. 

Mr. Roger King is a Senior Labor and Employment Counsel with 

IRI Consultants and is testifying on behalf of the Retail Industry 

Leaders Association of Washington, D.C. Mr. King represents management in matters arising under the National Labor Relations 

Act. Prior to moving to the private sector, Mr. King served as a professional staff, covering labor issues in the United States Senate. 

Mr. Glenn Taubman is a staff attorney with the National Right 

to Work Legal Defense and Education Foundation, of Springfield, 

Virginia. Mr. Taubman has been with the foundation since 1982. 

Prior to joining National Right to Work, he was a law clerk for 

Judge Warren L. Jones, U.S. Court of Appeals for the 5th and 11th 

Circuits. 

I will now recognize Representative Takano to introduce our next 

witness. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Today I would like to introduce our witness, Brenda Crawford. 

Brenda is a registered nurse who works in labor and delivery just 

outside of my district in Southern California. Actually, she lives 

outside of my district but she actually works in my district at Kaiser, a place I visit. I actually visited the maternity ward. 

And she has been a registered nurse for 27 years, has been employed at Universal Health Systems for the past 21 years. 

Our region suffers from a shortage of primary care providers, 

and it is registered nurses, such as Brenda, who help deliver essential care to the people of the Inland Empire. I look very much forward to hearing her testimony today and I hope my colleagues will 

listen to the perspective she has to offer on the NLRB election process and its impact on our nation’s workers. 

Welcome, Brenda. 

Mr. BYRNE. Thank you, Representative Takano. 

I will now continue with our introductions. 

Mr. Arnold E. Perl is a member with Glankler Brown, of Memphis, Tennessee. Mr. Perl has more than 40 years of experience in 

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12 

tering private practice, Mr. Perl was a National Labor Relations 

Board field attorney in Region 26, a board attorney in the NLRB’s 

division of advice, and a board attorney in the NLRB division of enforcement litigation. 

We welcome all of our witnesses today, and thank you for being 

here. 

I will now ask our witnesses to stand and to raise your right 

hand. 

[Witnesses sworn.] 

Let the record reflect the witnesses answered in the affirmative. 

You may be seated. 

Before I recognize each of you to provide your testimony, let me 

briefly explain our lighting system. You will each have five minutes 

to present your testimony. 

When you begin, the light in front of you will turn green. When 

one minute is left, the light will turn yellow. When your time is expired, the light will turn red. 

Now, for those of you who have been practicing law, you know 

what that means. When the light turns red—it is usually a judge, 

not a congressman—that means times up. I will ask you to wrap 

up your remarks pretty quickly, so please be prepared when it gets 

red to let me do that. 

After everyone has testified, members of this subcommittee will 

each have five minutes to ask questions of the panel. 

I will now recognize Mr. King to give his five-minute statement. 

TESTIMONY OF MR. ROGER KING, SENIOR LABOR AND EMPLOYMENT COUNSEL, TESTIFYING ON BEHALF OF THE RETAIL INDUSTRY LEADERS ASSOCIATION, WASHINGTON, D.C. 

Mr. KING. Thank you, Mr. Chairman, Ranking Member Polis. 

Thank you again for inviting me to testify before this Subcommittee. 

Before I start, I would like to send my best wishes to Congressman Roe and his wife. I have had the pleasure of working with 

Congressman Roe and I wish him and his spouse the best. 

I am testifying here today on behalf of the Retail Industry Leaders Association, RILA. RILA is a trade association that is made up 

of the largest and most innovative retailers in the country. 

The organization consists of more than 200 retailers, product 

manufacturers, and service suppliers, which together account for 

more than $1.5—and that is trillion—$1.5 trillion in annual sales, 

millions of American jobs, more than 100,000 stores in your districts, manufacturing facilities, and distribution centers domestically and abroad. RILA is pleased to be part of this hearing. 

Mr. Chairman and members of the subcommittee, I want to commend this committee and the House Leadership and the Senate 

Leadership for moving forward the joint resolution with respect to 

the National Labor Relations Board election rule. There are many 

negative aspects to this rule that are being glossed over, and it is 

being characterized as some type of technical adjustment to the 

National Labor Relations Act. Nothing is further from the truth. 

I want to stress eight key points this morning, but particularly 

the first point. 

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The board’s new rule is fundamentally unfair to employees. And 

you are absolutely right, Mr. Chairman, this is also about the employees and employers, and is an unprecedented—I want to underline unprecedented—partisan policy initiative by this regulatory 

agency. 

Mr. Chairman and members of this subcommittee, can you imagine if we had an election process in this country where one party 

or one individual could spend months if not years campaigning, 

unilaterally decide when to start the election process, unilaterally 

decide who gets to vote, and then require a vote within 11 to 14 

days? Can you imagine that process? 

I don’t know of any other process, from a local school election 

right up to federal elections. Even union officers, when they run for 

office, have a minimum period of candidacy and campaigning. 

That is exactly what is happening here. Let’s make no bones 

about it. This is just a raw agency political move. Nothing more, 

nothing less. 

Unions have months, if not years, to campaign. They decide to 

file their petition with the NLRB when they reach the peak of their 

momentum in their campaign, and then have that petition processed, as you mentioned in your remarks, on a very expeditious 

basis today. 

There is no need whatsoever for this legislation. It is fundamentally unfair. 

One additional point I would like to make is that union elections 

have lasting consequences. Once a union is certified in a place of 

employment, essentially that union is there for the life of that business. While employees may come and go in that bargaining unit, 

the unit stays there. 

This is unlike an election process that everybody in this room is 

most familiar with, where you have to stand for reelection every 

two years. The union is immune, essentially, from that type of 

analysis. That has to be emphasized here. 

Number two, the new rule is a legal and procedural landmine for 

both employees and employers, and the due process rights that are 

being trampled here are considerable. This rule was articulated, if 

you want to use that word, in a 733-page document. Small employers in particular are going to have exceedingly difficult time understanding what this process is about. 

As I state in my written testimony, which I would like to have 

submitted for the record, Mr. Chairman, and the appendices, there 

too,—thank you—if filing deadlines are missed, are not met, the 

employer waives all of its rights. We have virtually no hearing anymore under this rule. 

You can’t even file a post-hearing brief. People need to read the 

fine print here. This is procedurally unfair. 

Point four—I am skipping a couple due to the time limitations, 

but point four is particularly, I think, important to this committee. 

The board’s new rule is not consistent with the legislative history 

of the National Labor Relations Act— 

Mr. BYRNE. Wrap up as quickly as you can. 

Mr. KING. Yes. Yes, Mr. Chairman—and I would like to draw the 

committee’s attention to page five of my testimony. 

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In 1959 the Congress considered this very concept of election 

first, hearing later. That concept passed the Senate but ultimately 

was rejected by the Congress. 

Even Senator John F. Kennedy, who was a proponent of the 

‘‘election first, hearing later’’ concept, said there must be a minimum of 30 days between the filing of the petition and the election. 

This committee needs to look at that legislative history and, indeed, look even at their Democrat colleagues at that point in time. 

Thank you very much. 

[The testimony of Mr. King follows:] 

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Mr. BYRNE. Thank you, Mr. King. 

Mr. Taubman? 

TESTIMONY OF MR. GLENN M. TAUBMAN, STAFF ATTORNEY, 

NATIONAL RIGHT TO WORK LEGAL DEFENSE AND EDUCATION FOUNDATION, INC., SPRINGFIELD, VIRGINIA 

Mr. TAUBMAN. Thank you, Mr. Chairman, and distinguished 

committee members. 

Mr. BYRNE. Turn on your microphone. 

Mr. TAUBMAN. Thank you. 

Thank you for the opportunity to appear today. I have been practicing labor and constitutional law for 32 years on behalf of individual employees only at the National Right to Work Legal Foundation. 

I have a unique perspective on the NLRB’s ambush election rule, 

which comes from decades of representing thousands of employees 

subject to the National Labor Relations Act. I have represented employees in countless elections arising under the NLRA, both certification elections, decertification elections, and deauthorization elections. 

I start today with the premise that only employees have rights 

under the National Labor Relations Act. The Act is not about 

unions or employers; it is about employees making free and informed choices. 

Given the centrality of employee free choice, I would like to address two major issues today. 

The first is the way the NLRB’s new ambush election rules skew 

the process to wholly favor unionization while invading employees’ 

privacy and depriving them of their Section 7 rights to choose or 

reject unionization in an informed and thoughtful manner. 

The second issue concerns the way in which the ambush election 

rules continue the odious practice of blocking decertification elections to entrench incumbent unions, while simultaneously speeding 

certification elections. 

The NLRB’s new ambush election rules contain aggressive procedures to help unions win elections and get into power, while hypocritically retaining blocking charges and election bars that make it 

almost impossible for employees to exercise their rights to rid their 

workplace of an unwanted union. 

First, the ambush election rules mandate a serious invasion of 

employees’ privacy. They force employers to disclose to unions employees’ personal, private home or cell phone numbers, personal email addresses, and work schedules, including for employees who 

may well not be in this bargaining unit and who may never be in 

a bargaining unit, including supervisors. The union gets all this information without even knowing whether these employees are in or 

out of the unit. 

Despite employees’ pleas to the board, the board cavalierly 

brushed aside all privacy concerns, creating illusory or toothless 

remedies for union misuse of employees’ personal information. 

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ployee to opt out of the forced disclosure of his or her personal information. 

The board places no real restrictions or safeguards on how 

unions can use or disseminate this information. The only way to 

protect employee privacy is for the NLRB to not compel the disclosure of employee’s private information. 

Indeed, the American public would be appalled if they knew that 

the U.S. Government was forcing disclosure of their personal information to groups like the NRA, or ACORN, or the Sierra Club, but 

the NLRB has issued an edict doing just that for the benefit of a 

few politically active special interest groups called labor unions. 

Secondly, I want to discuss the fact that this ambush election 

rule cuts employees out of the process. Employees have no right to 

intervene in any election that is called, no input into the scheduling of the election, no input into the conduct of the election, no 

input into the scope of the bargaining unit, and no input into their 

own inclusion or exclusion from the unit. They cannot file objections or challenges to a tainted election, and their voices are silenced by these rules. 

For example, many employees may be unaware that a union organizing campaign is even underway in their shop until they are 

notified of an impending election just days away. But if these employees, even a majority of them, seek a delay in the election so 

they can learn more about both sides and the effects of the unionization, the NLRB will deny their request. 

If they ask for clarity as to who will be included in the unit, the 

NLRB will deny their request. If they want time to research the 

union that has targeted their bargaining unit, the NLRB will deny 

the request. 

All of these flaws were pointed out to the NLRB in comments 

that we and others filed, yet the concerns were all ignored and 

brushed aside. This is no way to run a democracy. It is akin to a 

mayoral election in which it is unknown, either before or after the 

election, whether up to 20 percent of the potential voters are inside 

or outside of city limits. 

In conclusion, we urge the committee to vote to override these 

NLRB rules. 

[The testimony of Mr. Taubman follows:] 

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Mr. BYRNE. Thank you, Mr. Taubman. 

Ms. Crawford, five minutes. 

TESTIMONY OF MS. BRENDA CRAWFORD, REGISTERED NURSE, 

MURRIETA, CALIFORNIA 

Ms. CRAWFORD. Good morning, and thank you, Chairman Byrne 

and Ranking Member Polis, for the opportunity to appear at this 

hearing. 

My name is Brenda Crawford. I have been a registered nurse for 

27 years and have worked at Universal Health Services in 

Murrieta, California for the past 21 years. 

I am here today to share mine and some of my colleagues’ views 

in support of the National Labor Relations Board’s final rule on 

representation procedures. I am not representing UHS in any way. 

In 2013, I participated in an organizing drive to form a union 

with my fellow registered nurses. A majority of the RNs signed 

cards supporting the union, and eventually the union filed an election petition. 

All we wanted was to have a fair opportunity to vote on whether 

or not to form a union. However, it became clear to us that the 

NLRB’s election procedures were rife with opportunities for the employer to create delay and uncertainty. 

The company had recently insisted, in another nearly identical 

bargaining unit, on a pre-election hearing to argue that charge 

nurses were supervisors. We knew the company would raise the 

same argument in our case. 

Charge nurses, who help to facilitate the floor operations, made 

up only a small percentage of the bargaining unit we sought. We 

knew that if the hearing was held to determine whether or not the 

charge nurses were supervisors, the resulting litigation would 

delay our chance to vote for weeks. 

The organizing committee had to make a difficult decision. We 

could either go ahead with the hearing and have the election significantly delayed, or we could agree to the company’s position. We 

ultimately conceded the charge nurses so as not to hold up the election any longer than necessary. 

And that was not the only concession we had to make. The union 

had to agree to the election date the company wanted, again, to 

avoid the need for a hearing. 

The NLRB’s final rule will allow the parties to approach elections 

on a more even footing. The new rules give regional directors the 

discretion to defer questions of individual eligibility and inclusion 

for small groups of workers until after the election. 

In our case, that means the charge nurses could have voted challenged ballots and their status would have been resolved only if it 

would have affected the outcome of the election. This removes the 

company’s leverage to force a pre-election hearing to unnecessarily 

litigate these types of small issues and would offer greater protection for the rights of the workers. 

The NLRB’s final rule would also improve the union’s ability to 

communicate with workers in a proposed bargaining unit. From before a petition for election was filed through the date of the election, the company ran a relentless anti-union campaign. The company communicated anti-union messages to us daily on every shift. 

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My fellow nurses and I were taken off patient care constantly to 

attend anti-union meetings. The company would send anti-union emails to the nurses, and even sent an anti-union text message to 

our personal phones when we were off work. 

The company’s anti-union campaign created a great deal of stress 

among the RNs, whose main concern was patient care. This stress 

was one of the main reasons we decided to concede the charge 

nurses, so that we could get to an election as soon as possible. 

Since the only contact information the company was required 

was home addresses, the union could not communicate with the 

nurses in the same ways the company did. Additionally, the union 

didn’t know shift times or other job information for the nurses who 

work 12-hour shifts. 

Without that information, the union could not know when nurses 

would be home or how to avoid bothering them when they had just 

gotten off shift. For many nurses, 10:00 in the morning is the 

equivalent to 10:00 at night. If we had more information about the 

nurses than just their home addresses, we could have contacted 

them to set up a time to meet with them. 

The NLRB’s rule—final rule expands the information the union 

and organizing committee would receive regarding the workers in 

the unit. If we had this information, we would have had a better 

opportunity to communicate with our fellow nurses and use the 

same means of communication that the company was using. 

The union lost the election. The company was able to manipulate 

the election procedure to delay the election date and communicated 

with the workers in ways the union could not. I am sure that the 

election results did not reflect the RNs’ desire to join together to 

collectively bargain with our employer. 

In closing, I ask that you do not support the Congressional Review Act resolution for disapproval of the NLRB’s final rule on its 

representation procedures. The NLRB’s changes to its election procedures are modest changes, but necessary to ensure its elections 

are free and fair for all workers. 

[The testimony of Ms. Crawford follows:] 

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Mr. BYRNE. Thank you, Ms. Crawford. 

Mr. Perl? 

TESTIMONY OF MR. ARNOLD E. PERL, MEMBER, GLANKLER 

BROWN, LLC, MEMPHIS, TENNESSEE 

Mr. PERL. Well, thank you, Mr. Chairman and Ranking Member 

Polis. 

In private practice I have been very involved with the National 

Labor Relations Act on behalf of many employers in various industries. I served on the most recent NLRB advisory panel during the 

Clinton Administration, at the invitation of Chairman William 

Gould, and during that same period made a presentation to the 

Dunlop Commission on the Future of Worker-Management Relations. 

I have served for over 40 years on the ABA’s Practice and Procedure Committee, and most recently served as the leadoff witness 

before the NLRB’s public meeting on rulemaking for this rulemaking procedure on July 18, 2011, where I appeared on behalf of 

the Tennessee Chamber of Commerce and Industry, and I appeared 

back before the board in 2014 during round two of the rulemaking 

procedures. 

The divided board’s issuance of the final rule, making sweeping 

changes—these aren’t minor changes; these aren’t procedural 

changes only. This blows up the whole system of representation 

elections, and it disregards the overriding goal of American labor 

law for more than 75 years, which has been to resolve representation questions not only quickly, but also fairly, and former Chairman Wilma Liebman stressed that in 2011. 

What we have here is to steamroll elections in the name of 

streamlining the process. And by doing so, the board majority prevents and impedes reasoned and informed choice by employees. 

The board’s reformulation instead reduces the election process, 

as aptly stated by members Miscimarra and Johnson, to vote now 

and understand later. 

Now, freedom of agencies exist to fashion their own procedural 

rules, but the Supreme Court’s emphasize that such rules must be 

consistent with statutory requirements. And as board member 

Hayes stressed in dissenting from the original issuance of the proposed amendments in 2011, by shortening the time from petition 

to election date, the board broadly limits all employers’ speech and 

thereby impermissible trenches upon protections that Congress 

specifically affirmed for the debate of labor issues when it enacted 

Section 8(c) in 1947. 

Concerns about unreasonable delay in a particular case—the socalled outlier cases, the one-off cases—cannot justify blowing up 

the whole system to conduct elections at lightning speed in all instances. As board member Hayes stated in a strongly worded dissent, ‘‘the principle purpose for this radical manipulation of our 

election process is to minimize, or rather, to effectively eviscerate 

an employer’s legitimate opportunity to express its views about collective bargaining.’’ 

The self-professed standard set by Chairman Pearce, that the 

final rule will result in improvements for all parties and represents 

a model of fairness and efficiency for all, ignores the fact that the 

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ambush election rule issued by the board majority is viewed highly 

unfavorably by employers. Just read the voluminous testimony 

given by employers at the two rulemaking procedures before the 

National Labor Relations Board. 

Regrettably, the employer testimony that elevating lightning 

speed over fundamental fairness in representation elections fell on 

deaf ears before the NLRB. The board majority stresses that the 

rule enables the board to more effectively administer the National 

Labor Relations Act by eliminating unnecessary litigation and 

delay. Yet, the board rule actually will cause increased delays and 

increased litigation in ultimately resolving questions of representation. 

And furthermore, the median time today for all elections is 38 

days, and more than 94 percent of all elections occur within 56 

days of the petition’s filing. And these statistics are well within the 

board’s own goals for timely elections. 

So the bottom line is that the board’s longstanding representation process is working today. And unions’ win rate today isn’t just 

40 percent or 50 percent; the union win rate today in 2014 was 63 

percent. So the system works for unions, as well. 

As stated by the two dissenting board members, the new rule is 

a solution in search of a problem. And I think the committee is 

well-advised to continue on with this process to overcome an ambush election rule that is inherently unfair to employers, destructive of free choice of the employees, and really represents a travesty to the National Labor Relation Board procedures in representation elections. 

I have submitted a written statement prior, and I would like it 

to be admitted into the record. 

Mr. BYRNE. Without objection, it will be, Mr. Perl. Thank you. 

Mr. PERL. Thank you. 

[The testimony of Mr. Perl follows:] 

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Mr. BYRNE. We will now proceed to members of the Subcommittee’s questions. 

I will recognize myself to begin for five minutes. 

I completely agree with my colleague with regard to his characterization of employers in America. The vast majority of employers 

in America are good actors, as he said, and I completely agree with 

Mr. Polis about that. But I am concerned that this rule, which I 

gather is designed to get at bad actors, actually will have a substantial negative effect on good actors. 

So, Mr. Perl, let me ask you: Will there be negative effects to the 

good actors out there from this rule? 

Mr. PERL. Well, it absolutely does. And the notion that this rule 

affects only the bad actors and the vast majority of good actors are 

unaffected by the rule, that is just not so. 

This rule applies equally to all employers—good actors and bad 

actors. The reason it is applicable to everybody is because these 

rules set forth a procedure that doesn’t exist today that provides 

a straightjacket for employers once they get notice of a representation filing. 

You know, in many cases, especially for small business, many 

employers aren’t even aware that an organizing campaign exists. 

So now, under the new rule, they get a fax that a petition has been 

filed, and that fax now has set a timetable—an automatic countdown, if you will—for 11 days at least, that, ‘‘Here is what is going 

to happen in the next 11 days.’’ 

And it starts with the employer being required to set forth what 

its position is on the unit. And the unit description here is provided 

by the union. 

As Roger King said, the union gets to choose its time when it 

files the petition and what the unit is going to be in this election. 

And the employer now has to state what its position is and file that 

at least one day before a hearing, which is held in no later than 

eight days. 

And an election process here is going to go from a median time 

of 38 days to as few as 10, 11 days—and most, probably 25 days. 

So who are the losers in this? The losers are not only the employers 

that are going to be denied their ability to engage in free speech, 

but the employees, who have a basic right to make a clear and informed choice. 

Now, I know Ms. Crawford—and I have been with Ms. Crawford 

before. She testified at the National Labor Relation Board hearings. And when she talks about the board providing additional 

ways to get information—the cell phone numbers, the private email addresses of employees, and so forth—the original rule came 

from the Excelsior case, and it provided for names and addresses. 

But in Excelsior, which the board has relied on, the board ignores 

the rationale of Excelsior Underwear, 156 NLRB at 1242. The 

board, in Excelsior, stressed that the opportunity for both sides to 

reach all the employees is basic to a fair and informed election. 

And now you are denying the employer the opportunity to reach 

the employees for a reasonable period of time. 

One is assuming here that all employees work all the same shifts 

every day of the week. It ignores the fact, especially with larger 

employers, that you have rotating shifts. You may not see some 

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employees for six days because they are on a rotating shift schedule— 

Mr. BYRNE. Let me interrupt you just a second, because I want 

to drill in on one point you made. I would like to ask Mr. Taubman 

a question about this. 

The information that this rule would require be provided on personal information on employees—is there any protection that the 

NLRB has afforded to the employees for what happens to that information once it is disclosed? 

Mr. TAUBMAN. What the rule says about protections is illusory 

and nonexistent. There are no protections for the use of this information that the NLRB is going to provide whatsoever, and there 

is no right to opt out. 

I mean, as I said, Congress has all kinds of protections for donot-call lists and whatever. People should be able to protect their 

own information. 

Just because I may give information to my employer doesn’t 

mean that I want the government to mandate that now my information goes to a whole host of political parties and actors against 

my will, and I should be able to control the use and the dissemination of my information, and there is zero protection for that in this 

rule. 

Mr. BYRNE. Thank you, Mr. Taubman. 

My time is up, and I recognize Mr. Polis for your five minutes? 

Mr. POLIS. Thank you, Mr. Chairman. 

Mr. Taubman, you kind of compared this to a, you know, mayoral 

or city council election. But at the same time, you are saying that 

it is somehow not an infringement on privacy what Ms. Crawford 

was subject to. She received texts, phone calls on their personal cell 

phone numbers from anti-union organizers that the company had 

given it to. 

All we are talking about is not private information, not information that an employee has kept private; it is only what the employee has already shared with the company. How can you even 

have a competitive election process if you only allow one side to 

communicate to the voters? 

Mr. TAUBMAN. I think first of all, Congressman, unions have 

ample opportunities to communicate with their voters. They have 

obviously gotten enough signatures of people in the plant. They 

have in-plant organizers, et cetera. That is the first thing. 

The second thing is I would say an employer has a legitimate interest in having contact information for its employees. Maybe 

somebody has to come in— 

Mr. POLIS. Well, reclaiming my time, again, it is up to the employee what they provide to their employer. If it is a personal email address, many—it is entirely up to an employee whether they 

provide that to their employer. Many times there is an official email address at the employer that would be the one used for official 

communications. 

The choice of privacy that the employee has is whether to give 

their personal information to the company, whether to trust the 

company, if you will. The employees are legitimate stakeholders at 

the company, and when there is a competitive election process you 

have to allow both sides to campaign. 

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Ms. Crawford was subject to repeated texts and e-mails from one 

side. They were unable to even get the work schedules to find out 

when people were at home. 

Under existing rules, as you know, they were able to get the addresses of the employees, but they weren’t able to find out when 

those employees were at home, therefore making their at-home visits twice as ineffective as the employer’s home visits, given that the 

employer had those work schedules and was able to, in effect, 

spend half as much doing home visits because they weren’t wasting 

them when the employee wasn’t home. 

To have a fair election for mayor, for city council, you have to 

allow both sides to communicate equally. How can there possibly 

be an election for mayor when one side is not allowed to communicate via text and e-mail and the other side is? 

Mr. TAUBMAN. Well, again, as I said, I think there are ample opportunities to communicate. The union had— 

Mr. POLIS. Reclaiming my time, ample opportunities like mandatory employee meetings that employees have to attend? 

Mr. TAUBMAN. If the union communicates with these people and 

says, ‘‘Please give us your e-mail address,’’ then the people are free 

to give up their e-mail address. If my employer asks me for my contact information so it can contact— 

Mr. POLIS. Reclaiming my time—do you think that the—when 

the employee—do you think that when the employees—if they 

chose to give their personal e-mail address or cell phone to the 

company, do you think they had in mind that the company might 

use it to lobby them against forming a union? 

Mr. TAUBMAN. Well, I would hope that my company wouldn’t 

have in mind that it was going to give my information to the NRA 

or the Sierra Club or ACORN— 

Mr. POLIS. Reclaiming my time, I don’t know what the NRA and 

the Sierra Club have to do with any of this. 

Ms. Crawford, could you characterize what kind of texts you got 

from the company with regard to the union formation activity? 

Ms. CRAWFORD. Well, the company at the time was only using 

our cell phones for texting our schedules, so when our schedules 

would be ready or it was time to put in for your schedule they 

would text us. At one time they did send a text over that text messaging system, which was only used for the staffing purposes. They 

did send that text—an anti-union, vote no, and— 

Mr. POLIS. And I am not asking you to quote it verbatim, but approximately what did that say—that text? 

Ms. CRAWFORD. What did it say? 

Mr. POLIS. Approximately. Did it say vote no on something, or 

was it a message about why, or— 

Ms. CRAWFORD. You know what, I don’t— 

Mr. POLIS. Yes. So basically the company lured employees into 

giving them their personal information by saying, ‘‘We will make 

your scheduling more convenient,’’ and then they used that personal information that employees had trusted them with to lobby 

them about how they voted in an election without providing that 

same information to the employees who were trying to organize? 

Ms. CRAWFORD. Correct. 

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Mr. POLIS. And finally, Mr. Perl, you referred to outliers that this 

rule is assigned to address. And certainly, as you mentioned, many 

of the issues are resolved within the mean period—think you said 

36 to 56 days, or something along those lines. 

Fully one in 10 efforts are unresolved after 100 days. At what 

stage does it cease to be an outlier and begin to be a problem for 

an expeditious and fair election? 

Mr. PERL. Well, I think the case that Ms. Crawford talked about 

with the case that goes on for hundreds of days—that is clearly an 

outlier case. Again, the median time for all elections is 38 days. 

Mr. POLIS. And to end my remarks, I don’t think that the—you 

know, the median time is not an issue, it is the one in 10 that are 

over 100 days, including the Mercedes-Benz election of 428 days. 

I yield back the balance of my time. 

Mr. BYRNE. Thank you, Mr. Polis. 

And I should have reminded the witnesses, when we ask your 

questions, it is hard to remember, please punch the button in your 

microphone. I am sorry. It is my fault for not telling you that. 

Okay, we will now call on Mr. Walberg for five minutes. 

Mr. WALBERG. Thank you, Mr. Chairman. And I appreciate having this hearing today. It is only right. 

If we only dealt with issues that were going to pass and be 

signed by the President, nothing would have happened when I 

served in the minority on this same committee, with issues that 

were brought up that the President at that time would not have 

signed. This is our process and we ought to go through it deliberately, especially when we talk about common-sense reforms of 

the NLRB. 

That is an oxymoron, in my point of view. To associate common 

sense with what this NLRB is doing, it just doesn’t cut it. 

Mr. King, under current procedures, once an election is ordered 

employers are required to provide the union with a list of the 

names and addresses of the employees who will be voting. The new 

final rule expands the information required under the so-called Excelsior lists to include available personal telephone numbers and 

available personal e-mail addresses, to be specific. 

In your view, are there any issues that can arise from expanded 

access unions will have to employee personal information? 

Mr. KING. Yes, Congressman Walberg. 

And before I answer that specific question, the questioning about 

the privacy issue—it was proposed by RILA and other organizations to the board to have an opt-in or opt-out procedure, where 

employees could choose whether they wanted this information to be 

furnished. That was wholly disregarded. This board paid no attention to privacy issues whatsoever. 

To answer your specific question, there is no protection whatsoever. A number of organizations proposed there be sanctions, if we 

have to go down this route, for misuse of this personal information. 

Totally disregarded. 

This board has turned a deaf ear on any privacy issue. 

Mr. WALBERG. To the employees? 

Mr. KING. Absolutely. 

Mr. WALBERG. I mean, we are talking about that. It is not an attack on the unions. 

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Mr. KING. Right. It has— 

Mr. WALBERG. They will do what they want to try to gain support that they are losing right now— 

Mr. KING. Right. 

Mr. WALBERG.—including in my home state, with the Employee 

Free Choice Act that has been implemented and the support that 

has been there from employees who want the best opportunity, who 

aren’t asking to be cut out of any decision, but they want to be protected. 

Go on. 

Mr. KING. You are absolutely correct. The employee interests 

here have been trampled all together. There is absolutely no protection for their information—private information that they may or 

may not provide to their employer. 

Further, I would like to add to this discussion. My experience in 

private practice over 45 years is that unions have ample access to 

employee information—in fact, in many cases have more ample private information available to them than the employer. So this suggestion that somehow there is an advantage to the employer just 

doesn’t meet with the facts that are out there. 

Mr. WALBERG. Mr. Perl, in seeking to expedite the election process while shortchanging the pre-election dispute process, do you 

agree that the new rule will increase the likelihood of processing 

errors, such as costly misclassifications of employees? 

Mr. PERL. I believe the new rule impedes really an opportunity 

here for the resolution of the issues with a stipulation being arrived at voluntarily among the parties, with the approval of the regional office, to avoid any kind of lingering disputed issues after 

the election. 

The board rule puts all the disputed issues, basically—kicks the 

can down the road—and decides it after the election. If the union 

wins, then we will have to deal with these issues. 

But the new rule does not allow a reasoned opportunity for an 

employer to discuss with the regional office how to resolve the 

issues raised by a petition. And there are some significant issues. 

The issue that Ms. Crawford pointed out about the supervisory 

status of charge nurses—I mean, that is one of the critical issues 

of voter eligibility that will not get resolved in a pre-election hearing under the new rule. It is a critical issue for resolution. It is not 

some minor issue. 

The board should have learned the lesson—and we cited it in our 

written testimony, your Honor—of ITT Lighting Fixtures. It was a 

1970s case that went up to the 2nd Circuit on two occasions, and 

five years later it ended up on a petition for certiorari by the union. 

The union won an election, but the NLRB regional director, who 

did hold a hearing on the status of some 31 group leaders, whether 

they were supervisors or not—he chose not to resolve it. Let it be 

decided by challenged ballot. 

They were very involved on behalf of the union, so the employer’s 

hands were tied. We couldn’t— 

Mr. WALBERG. Mr. Perl, wrap up as quickly as you can. 

Mr. PERL. And that case illustrates the dangers of the new rule 

in terms of allowing parties to get it resolved on the front end. 

Mr. WALBERG. Thank you, Mr. Chairman. 

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Mr. BYRNE. Thank you. 

The chair now recognizes the ranking member, Mr. Scott, for five 

minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Chairman, workers deserve a fair process that allows them 

to decide whether or not to form a union. The current process has 

been long open to manipulation, delay, and drawn out pre-election 

maneuverings. 

Delays cause unnecessary conflict and disruption. These disruptions damage labor relations and harm productivity. By exercising 

their rights to organize and collectively bargain, American workers 

have helped build a stronger middle class, the backbone of the U.S. 

economy. 

And the current process to hold an election on whether to form 

a union is badly broken and it allows bad actors to use litigation 

to stall elections for months—even more than a year—after the 

workers petition to hold an election. Election delays provide opportunities for unscrupulous employers to engage in threats, coercion, 

and intimidation. 

The delay can be exploited to violate workers’ rights, including 

firing pro-union workers or threatening to close a plant if workers 

vote a certain way. In fact, research indicates that the more successful an employer is in delaying a hearing, the more likely that 

there will be unlawful conduct. 

Let me ask anybody who wants to answer what is the sanction 

right now for unfair labor practice, such as firing an employee? 

Mr. PERL. Well, the sanctions are considerable. It is an unfair 

labor practice. 

Mr. SCOTT. Your microphone. 

Mr. PERL. Excuse me. Thank you. 

The final rule is passed under Section 7 of the National Labor 

Relations Act, which governs representation elections. The outlier 

cases, where there has been discussion about all of the things that 

have taken place by a bad actor, an employer that you referenced 

committing unfair labor practice—that is under Section 8 of the 

National Labor Relations Act. There haven’t been any changes that the board focused on in Section 8. So they took the problems that could arise under Section 8 

and made sweeping changes, blowing up the rules under Section 7. 

Mr. SCOTT. What is the sanction if you— 

Mr. PERL. So the sanctions could be reinstatement with back 

pay. Also, in the cases of significant unfair labor practices, the 

NLRB has gone into federal district court seeking injunctions 

under Section 10(j) of the National Labor Relations Act for immediate reinstatement. 

So there are significant remedies available for serious unfair 

labor practices. 

Mr. SCOTT. The sanction, as you mentioned, is reinstatement 

with back pay minus whatever income they made during the long 

delay. Is that right? 

Mr. PERL. That is. But the board increasingly has sought immediate injunctive relief to reinstate employees with almost no interruption in employment. And where the unfair labor practices have 

a reasonable chance of—for the board prevailing, the courts have 

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granted these injunctions and reinstated employees shortly after 

they were terminated. 

Mr. SCOTT. So there is no real penalty. 

What is the change in the rule, in substantive law as opposed to 

procedural law, that would just speed up the election and avoid the 

delays? 

Mr. PERL. Well, what has happened is that in order to try to 

reach out to the kind of situations that you were alluding to, the 

board blows up the entire representation process, where employers 

have an opportunity to engage in free speech and employees have 

a right to engage in informed free choice. 

And so we are dealing with changing the procedures in Section 

7 to address certain issues that arise under Section 8 of the National Labor Relations Act, and that is a basic problem here. 

The change—rule changes are not minor. They are not modest. 

They are blowing up the whole representation procedures to deal 

with certain outlier cases, and that is what is causing the major 

problem to which employers seriously objected during the NLRB 

procedure. 

Mr. SCOTT.—I haven’t heard the specific change in substantive 

law. 

Mr. KING. Mr. Scott, if I may speak to that—Mr. Chairman, do 

I have a moment? 

Mr. BYRNE. Certainly. 

Mr. KING. They are many-fold. First of all, the hearing itself will 

not occur until after the election. In 1959, this Congress— 

Mr. SCOTT. Well, there are a lot of—but there are a lot of hearings that you are talking about minor issues that do not affect the 

election. Why can’t you go along with the election, form the union, 

and then decide these little frivolous, extraneous issues after the 

election? You are holding up the entire election for these little 

issues that can be done sequentially, one right after the other, and 

you never get an election. 

Mr. KING. Mr. Scott, I know that sounds appealing but it is in 

contradiction— 

Mr. BYRNE. Mr. King, wrap up very quickly. 

Mr. KING. Yes. It is in contradiction to the National Labor Relations Act provision that requires a hearing to be held at all cases. 

In 1959, the Congress looked at that issue and specifically rejected 

election first, hearing after. It is not the law. 

Mr. BYRNE. Thank you, Mr. Scott. 

Chair now recognizes the gentleman from Kentucky, Mr. Guthrie, for five minutes. 

Mr. GUTHRIE. Thank you, Mr. Chairman. 

I am not an attorney. I have had one law school class and it is 

labor law. I actually thought I was signing up for employment law, 

but it was labor law when I showed up. 

I was in a business program. So I know a little bit about this. 

So just the balance of power between management and unions. 

So I guess, Mr. Perl, you are the right guy to ask this question: 

What if the management is egregious, if they conduct in a—during 

the campaign or leading up to the campaign, they deleterious— 

they delay, they are egregious, they create an environment where 

a court could say, ‘‘Well, there is not going to be a fair election?’’ 

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What is the remedy for the union in that case? What could be the 

remedy? 

The Gissel bargaining order, right? What is that? 

The court can order the union representation without a vote, 

right? Isn’t that correct, if management conducts themselves in a 

way that is— 

Mr. PERL. Yes. The Supreme Court ordered that in the famous 

case of Gissel decades ago. Where there are serious unfair labor 

practices, the board has the ability to order the imposition of a 

union on an employer after the employer has either won an election or without an election. 

So there are significant remedies available for those outlier cases 

where an employer has committed serious unfair labor practices, 

and that is under Section 8 of the National Labor Relations Act. 

The rule blows up the process under Section 7 to address certain 

outlier cases, but the impact affects every single employer and 

every single representation petition. 

Mr. GUTHRIE. Right. So there is a process for people to get fair 

representation if the board rules the employer to be unfair. 

The other thing about communications, and that is one that I 

think is probably the most significant part of all of this. There are 

a lot of issues, but the communications. 

And it seems to be implied by people today that if I give my information to someone, then all of a sudden that becomes available 

to the third party. And I think I have every expectation that if you 

are going to work for someone and be an employer you have to 

communicate, but I don’t think that—and I think it is a bad precedent to say—‘‘Well, just because I have given that information to 

this employer then third parties have the right to that information.’’ That information should be private. 

My one experience in law school—that law class, I would say— 

is that if you go through all the cases, there is a tension between 

access to workers, access to the job site, free speech for the employers, property rights for the employers, and how you kind of make 

all this work. And I came to the conclusion that if management 

practices within a business is so egregious that a union drive is organic—that is, employees working for that business—they have access to each other. 

They sit in the break room together. They can share information. 

You can walk around with a clipboard and say, ‘‘I need your e-mail 

because the way management is treating us, we are going to go out 

and work for an organization—we are going to find an organization 

to represent us.’’ 

That is all readily available because employees are on the job site 

together. And there is—usually when there is a union drive there 

are a few, handful, or several employees—and they are protected 

by the law. Once somebody starts an organization drive they can’t 

be fired. If they are, you have the remedies that you went through. 

So access to workers in a union drive, if it is the workers driving 

the drive, is readily available on site, at work, everywhere they 

meet. 

Mr. PERL. You know, it is hard to justify blowing up the whole 

representation process on the claim that unions are being deprived 

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of essential information. That doesn’t explain the fact that unions 

are winning 63 percent of all elections. 

Mr. GUTHRIE. Well, my point is if the unions are—if the drive is 

being driven by the workers, they have access to the information. 

Mr. PERL. They absolutely have— 

Mr. GUTHRIE. If there is an outside party trying to convince a set 

of workers that management is not treating them well then we can 

do it better. 

I think there should be a high standard for that to happen, because it does change the dynamic of the workplace. And there are 

some places that absolutely need third party representation. You 

could point to places where management does earn the situation of 

a third party representation, or the workers deserve to have that. 

So the whole case of not having access to workers—if the workers 

want to unionize, they absolutely have access to each other. 

Mr. KING. Mr. Guthrie, I may, just on your privacy point—every 

time that you or I or anyone in this room furnishes information to 

our bank, to our credit card company, there is a privacy statement 

that flows back to us. We have an opportunity to opt in, opt out, 

or restrict the use of that information. 

Nowhere is that contained in this rule. That approach was specifically rejected by the board. 

Mr. GUTHRIE. Well, the implication, as some people have said, 

basically is that once you submit your information then you lose 

that expectation, and I think that is not any—you said banks. We 

give our information quite a bit. 

When we had the hearing on—another hearing on this it was basically—somebody asked, ‘‘How did you know to come here today?’’ 

My e-mail address—by e-mail. 

But the answer to that was, ‘‘You submitted your e-mail for us 

to contact you.’’ And so I think that privacy is very important, and 

workers have the ability to organize in a way if they feel like that 

it is an internal—and organic to the business and not some outside 

party coming in—and should have that right. 

Mr. BYRNE. Thank you. 

The chair now recognizes the gentleman from California, Mr. 

Takano, for five minutes. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Earlier the Excelsior case was mentioned, which set forth the 

longstanding precedent on providing unions with contact information. The case was clearly about creating a level playing field for 

unions and workers who are trying to exercise their right to free 

association. 

Let me read you a little bit from the Excelsior case and—I can’t 

seem to find it on here. You can find the—I want to get the Excelsior case excerpt—get that for me, please. The phone just switched 

off on me. 

Anyway, well, communication has changed a great deal since 

then and we have the Internet and the e-mail. Clearly communication—well, here is the section. 

It says any—‘‘as one thoughtful commenter has said, since the 

opportunity for both sides to reach all the employees is basic to a 

fair and informed election, the reasons for requiring disclosure 

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seem just as strong as those leading to similar requirements under 

other provisions of the law.’’ 

Well, communications has changed quite a great deal since then 

and we have the Internet and e-mail. Clearly communication has 

not been fair. Ms. Crawford can attest to that. 

Ms. Crawford, can you tell us a little more about how your employer contacted you? 

Ms. CRAWFORD. Yes. The employer had contact with us every 

day, every shift. They contacted us, of course, when we were a captive audience—when we were at work. 

We were forced to—or made to go to meetings, being taken away 

from our patient care to go to attend informational meetings that 

were one-sided information. We also, of course, had our work emails, where we received anti-union messages and information. 

And then, like I said, our cell phones. We were texted, and actually attached to that text is our personal e-mail, so we got the same 

e-mail. But they had access to us. 

Mr. TAKANO. So, Ms. Crawford, the union organizers did not 

have the same ability to communicate with employees, did they? 

Ms. CRAWFORD. No. Not at all. The only information we had was 

address and where they worked. We didn’t know what shift they 

worked; we didn’t know any way to contact them except mail or 

going to their home. 

Mr. TAKANO. So this, I mean, that doesn’t seem like a fair election to me. The employer was able to contact you, they knew your 

shifts, they were able to contact you at the right times, and they 

were able to send you continuous—there was no limit on the messaging they were able to provide to you—the anti-union messaging. 

Ms. CRAWFORD. Right. They had constant contact with us. 

Mr. TAKANO. You know, the majority has characterized this new 

rule, which would allow union organizers to have the same sort of 

access and the ability to communicate with employees, as the ambush rule. I would think that is a very specious way to characterize 

this new rule. I mean, the ambush rule? Really? 

It is just a matter—I would call it the fairness rule. They are trying to give the organizers fair access to the ability to communicate 

with employees while the employer was able to do this unfettered. 

You know, I am just amazed at the misuse of the English language. I am a former English teacher. I mean, my sophomores 

would be able to detect this Orwellian use of the English language. 

Mr. Perl, you know, in your testimony you assert: By shortening 

the time from petition to election date the board broadly limits all 

employer free speech. Isn’t it true that the employer can relay their 

views on collective bargaining to their employees at any time, including when they are hired and at any point in their tenure with 

the company? Isn’t that true they can do that? 

Mr. PERL. Well, the employer has an opportunity to talk about 

a union— 

Mr. TAKANO. So the answer is yes. Thank you. 

Isn’t it true that employers can mandate that their employees go 

to presentations—mandate their employees go to presentations, as 

Ms. Crawford stated, that relay the employer perspective on unionization and collective bargaining but unions are not afforded the 

same process because they can’t communicate with them? I mean, 

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not on the same level. I mean, the employer has all this access to 

their— 

Mr. BYRNE. The five minutes is up. Please wrap up your answer 

very quickly, Mr. Perl. 

Mr. PERL. In terms of onboarding employees, the employers typically aren’t spending the time of onboarding to talk about unions. 

They are talking about the competitive needs of business today, 

and what the culture of the company is, and about how we have 

to work together pursuing common visions and common goals— 

Mr. TAKANO. We know that we are talking about in the context 

of an election. 

Mr. PERL.—to achieve the business. 

So what has happened in so many cases is that a union has 

spent weeks preparing for an organizing campaign, and the reason 

it is aptly dubbed ‘‘ambush elections’’ is because in many cases the 

employer is not even aware of the organizing attempt. Unions— 

Mr. BYRNE. With that, we are really going to have to cut off. We 

are way over the five minutes. 

Mr. TAKANO. Thank you, Mr. Chairman. 

Mr. BYRNE. Thank you, Mr. Takano. 

The chair now recognizes the gentleman from Georgia, Mr. Allen. 

Mr. ALLEN. Thank you, Mr. Chairman. 

And I have listened with quite a great amount of interest in the 

testimony here this morning. My experience has been the business 

world for 37 years. I founded a company 37 years ago. 

Prior to that, my experience working in the business world in 

construction was with a union company, and so I understand that 

side of the business as well. In fact, as the secretary of the local 

contractors’ association I actually negotiated union agreements 

with the unions that were represented in our industry. 

So I am quite knowledgeable about the pros and cons of the 

union versus the non-union. 

I will say that as the owner of a company, we do have company 

meetings. And, you know, some folks don’t like them. But I can’t 

help that. 

I mean, you know, part of the process of establishing a vision for 

a business is to communicate that vision properly, and you have 

these meetings so that you kind of understand everybody’s role, 

and where the company is going, and how the company is doing. 

So, you know, it is possible that these meetings could be construed to be anti-union. I don’t know. 

Mr. King, what is your experience with that? I mean, as far as 

in your representation of businesses that—where companies have 

meetings, I mean, is automatic testimony that these—oh my goodness, these are anti-union meetings? 

Mr. KING. Congressman Allen, absolutely not. Yes, there may be 

some content in those meetings regarding the negative aspects of 

unionization, but the worker today is far more educated than what 

the worker was many years ago—access to information through the 

Internet, through many other sources. 

If anyone is here today to suggest that an employer can just 

brainwash an employee and threaten or coerce an employee to just 

vote for the union in one of these meetings, they are not in touch 

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with reality. In fact, I have seen it backfire when some employers 

go too far. 

And on the remedy question, we have discussed the legal remedies. The remedy, frankly, for an employer that has a scorched 

earth campaign and fires employees and treats employees poorly— 

they are going to lose that election. The union is going to use that 

against them every time. 

So it is a practical matter. The practical deterrent is you don’t 

do that. You just don’t do it. 

But these meetings, to answer your specific question, no, there 

is no magic in these meetings. And frankly, some employers turn 

employees off in these meetings. 

Mr. ALLEN. Thank you. 

Yes, sir? 

Mr. TAUBMAN. Mr. Allen, I would also like to add, in response 

to some of this about unequal access, since I do a lot of election 

cases—certifications, decertifications, what have you—I have seen 

in more and more campaigns today websites set up where a group 

of employees will set up a website. So once they set up a website 

and the word is out, ‘‘Hey, if you want information about our campaign you can sign up, you can voluntarily give us your information,’’ it is out there. 

I see websites in campaigns now constantly. But those employees 

have the option of voluntarily logging in and giving their e-mail information. 

Mr. ALLEN. And while I have got you, under the final rule, employers would be required to provide an expanded Excelsior list, including each employee’s name, address, phone number, and e-mail 

address, within two days of an election order. In your experience, 

do unions visit employees’ homes, call their phones during an organizing drive, or have employees described these interactions? 

Mr. TAUBMAN. Absolutely. There are many complaints of home 

visits—unwanted home visits, union people parking themselves 

outside of people’s homes, abusive things like that. So there is plenty of access that union officials have and use. 

Mr. ALLEN. Thank you. 

Mr. Perl, in your opinion, what is the NLRB up to here? I mean, 

you said 38 days and now they want to take it to 11. What exactly 

is going on? 

Mr. PERL. Well, I think we have to look at this in the context 

of what has happened in the last five to 10 years. It started in Congress with the Employee Free Choice Act, or EFCA, where the 

unions were seeking to gain representation with no elections at all. 

Congress refused to pass that desired legislation that labor was 

seeking to get passed. 

So what is the bailout? This really is a bailout for organized 

labor. 

Mr. ALLEN. Okay. 

Mr. PERL. And what it provides is a greater opportunity to be 

even more successful in union organizing by totally blowing up the 

representation procedure at the expense of employer free speech 

and employee free choice. 

Mr. ALLEN. Thank you, Mr. Perl. 

I yield back. I have no time left. 

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Mr. BYRNE. Thank you, Mr. Allen. 

The chair now recognizes the gentleman from Wisconsin, Mr. 

Pocan, for five minutes. 

Mr. POCAN. Thank you, Mr. Chairman. 

And let me just start off right off the bat, like I did at the last 

hearing, saying we have lawyered up well again today, but it would 

be nice to have business owners, who have some issues with this 

before us. Because usually when you bring lawyers that means you 

have got a problem, and it would be nice, like we have done before, 

joint employer rules—had some business owners. We brought an 

employee telling about their experiences. I just want to reiterate 

that point. I think it would be useful. 

Let’s talk about what this rule really is, all right? It is doing two 

things. 

One, it is modernizing how we communicate. You know, you keep 

referring to cases from 1979, when we didn’t have e-mails and we 

didn’t have cell phones. This is just bringing us into an era that 

we are, 2015. 

And secondly, it is kind of dealing with the bad actors. And let’s 

face it, if you are a good actor this rule is not going to affect you 

negatively. This myth of this 10 or 11-day election is much like the 

myth of the Loch Ness Monster or Bigfoot. Some people believe in 

it but, you know, most of us don’t, and we have opinions on those 

who do. 

So that is the reality of where we are at. 

Let’s just talk about the communication side of it, all right? I am 

a small business owner. I have been for 28 years. 

I have that employee basically a third of the day when they are 

working for me during their working days—if you think about it, 

half of the day that they are actually awake, because hopefully 

they are getting about eight hours of sleep. I have a lot of access 

points to that employee. 

Now, it is being said that, you know, there are all these great 

concerns over privacy. 

Let me start, Mr. King, with a quick question: Do you think it 

is all right to give the address of an employee to the union? 

Mr. KING. I question that. I don’t believe in the Loch Ness Monster either. 

Mr. POCAN. Well, that is all right, but if you could answer this 

question, because my time is really short, I would appreciate it. 

And I am glad to know that. 

Mr. KING. There is certain basic information both parties should 

have. 

Mr. POCAN. Right. But the address, just real specifically. Yes or 

no? Do you think it is okay to— 

Mr. KING. I think it is questionable. I think it is a considerable 

invasion of the privacy of— 

Mr. POCAN. Mr. Taubman, how about the same question about 

an address? 

Mr. TAUBMAN. I think your employees should have the opportunity to opt out if they don’t want their personal— 

Mr. POCAN. So is that a yes or a no? Real people use yes or no; 

lawyers don’t. Yes or no? 

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Mr. TAUBMAN. So the question is, does—can you repeat the question then? 

Mr. POCAN. Do you think it is okay to give the address of an employee to the union that is trying to organize? 

Mr. TAUBMAN. I think if the employee— 

Mr. POCAN. Boy, this is the longest yes or no, Mr. Chairman. 

Yes or no? 

Mr. TAUBMAN. I can’t answer that question yes or no because I 

think if the— 

Mr. POCAN. Okay. Well, see, here is the bottom line: I think it 

is far more intrusive to have someone at your door. There is the 

famous line, ‘‘Look, I know where you live.’’ No one says, ‘‘Look, I 

know your e-mail.’’ 

I mean, ‘‘Look, I know where you live,’’ is a little stronger. So the 

fact that now we are adding more modern ways to communicate, 

things like e-mails and phone numbers, just is a logical extension. 

So let me talk about a couple things that T–Mobile did recently 

with their employees, all right, just to give you an idea on their 

union communication workers. Someone wore a t-shirt to work and 

talked about union activities. They were fired. 

Now, you said very strong, there are rules that you can’t fire. But 

we all know what that really means. And in this case, we saw exactly what they did. 

The NLRB hearing in February of 24, local managers admitted 

they created unwritten policies which they used as excuses to fire 

him. No one is going to say, ‘‘We are firing you because you are 

organizing a union.’’ They are going to come up with something 

else. 

So is getting potentially fired from your job stronger than receiving an e-mail? 

Okay. I will take silence as an answer that no. 

How about when you have to, from day one, attend meetings 

about not joining a union. Is that stronger than receiving an email? 

All right. I will take your silence again—that is great. How about 

spying— 

Mr. POCAN. Let me just—I have got to go through the list—spying on employees? 

Mr. KING. Pardon me. 

Mr. POCAN. Is it more intrusive to be spied on by the company 

than to receive an e-mail? 

Mr. TAUBMAN. I would like to answer— 

Mr. POCAN. Field that one? Sure, Mr. Taubman. Thank you. 

Mr. TAUBMAN. I will field all of these, because I am not here to 

defend employers and employer conduct. I don’t represent employers and I never have. 

I represent employees who report to me that they feel harassed 

and abused by getting home visits from union organizers— 

Mr. POCAN. But my question was—let’s go back to my question 

that you said you were going to answer, all right? I mean, I know 

you are a lawyer, okay? It is tough. You have just got to kind of 

forget those law school years of not answering and just try to be 

the person you are and answer the question, all right? So go ahead 

and— 

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Mr. KING. I will give you a direct answer. 

Mr. POCAN. Thank you. 

Mr. KING. You can send e-mails, as you know, Congressman— 

hundreds in a period of minutes. You can send texts—hundreds of 

texts—in a period of minutes— 

Mr. POCAN. But, you know, if they send 100 e-mails to me I know 

exactly what is going to happen. Either it is going in my spam folder or I am going to get pissed I got a 100 e-mails in a row. So they 

are not going to do that. 

So again, it is back to Loch Ness Monster and Bigfoot. 

Let me just try again. You have mandatory meetings over and 

over. Let’s face it: The employers have plenty of access. 

It is a red herring to put this out there that somehow this is 

overly intrusive since the employer already has all of these ways 

to contact someone. That is the reality. 

And let me just close with this, Mr. Chairman. 

You guys who really believe—if you really, really believe an election can happen in 10 or 11 days and how—we know it is very, 

very rare, but how wrong that is, in the state of Wisconsin, with 

less than two weeks notice they announce a right-to-work law that 

they are voting on. If you really believe in your convictions that is 

too short of a timeline, please—I will get you, if you would like, the 

address of our governor and our legislative leaders. Could you tell 

them how terrible it is that they are forcing that in such a quick 

time? I would appreciate it. 

I yield back my time, Mr. Chairman. 

Mr. BYRNE. Gentleman yields back. 

The chair recognizes the gentlewoman from North Carolina, Dr. 

Foxx. 

Ms. FOXX. Thank you, Mr. Chairman. 

Mr. Taubman, in your experience, do unions routinely provide 

employees they seek to organize information about themselves? For 

example, do unions disclose their constitutions; bylaws; results of 

unfair labor practice charges; results of negotiations for first contracts; past records with other employers; bargaining history; and 

demands that could include grossly underfunded, defined benefit, 

multiemployer pension plans; past records of civil or criminal violations and misconduct; and their record toward members ordering 

union fines and member discipline? 

Mr. TAUBMAN. Congresswoman, I can assure you that no union 

discloses any of that kind of information to any employee. They are 

oftentimes voting in the dark. 

If they can get any of that information about the union that covets them, they are very lucky. And they need that information to 

make an informed decision. 

And I would just like to quickly add, when employees in a shop 

seek to decertify a union, they don’t get Excelsior lists; they have 

to go out and try to communicate with their fellow employees. So 

they are not given equal access in trying to rid themselves of an 

unwanted union. 

Ms. FOXX. I am sorry my colleague left before he heard the answer to that question. 

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Mr. Perl, in Ms. Crawford’s testimony she describes the inclusion 

of charge nurses in the bargaining unit as a small issue. The issue 

there was whether they were employees or supervisors. 

Is this a small issue, Mr. Perl, and what are the possible problems with misidentifying a supervisor as an employee? Could the 

election be thrown out? Does the NLRB’s ambush election rule 

solve this problem or make it worse? 

I know I have given you lots of questions. I can come back if you 

need— 

Mr. PERL. Well, no, your question is very clear, and it is very 

pertinent. 

The case I cited in the written testimony, the ITT Lighting Fixtures case, I personally handled that case, and it took five years 

all because a regional director, which held a hearing, had refused 

to resolve the status of 31 working group leaders, whose supervisory status was challenged by the company. 

And their pro-union activities influenced the outcome of the election, the employer filed objections to the election, and then there 

were multiple hearings, proceedings before the NLRB, it went to 

the United States Circuit Court of Appeals for the 2nd Circuit 

twice, and ended up five years after the petition was filed with a 

petition for certiorari being denied by the court. The election was 

vacated and the union was not certified. 

This procedure here makes that the new normal, because the 

issue of supervisory status, which perhaps in most cases is the 

most vital voter eligibility issue that exists, will not be resolved by 

the NLRB. They won’t even hold a hearing now under the new 

rules. 

It is not a minor issue. It is a major source of dispute, often between employers and employees, and it needs to be resolved in preelection hearings before the election is held. Otherwise the employer doesn’t know how to deal with these people. 

The employer is entitled to the allegiance of its management 

team. If you don’t know and have the assurance that these supervisors are on—are certified by the NLRB as supervisors and you 

can safely communicate, talk with them, ask them to do things, you 

run the risk of unfair labor practices if you do that. You do it at 

your peril. 

And when some of the congressmen are talking about unfair 

labor practices and bad actors, by refusing to resolve the status of 

supervisors, we are running the risk of creating a situation that is 

fraught with peril and potentially creating unfair labor practices, 

which creates unnecessary litigation for employers, as well as for 

the National Labor Relations Board. 

Ms. FOXX. Thank you, Mr. Perl. 

I do want to add one quick thing, Mr. Chairman. And again, I 

am sorry my colleague from California has left when he talks about 

Orwellian language. 

I would like to point out on this same subject that our friends 

introduced a bill called the Free Choice Act, related to imposing 

unions on employees. And if you want to talk about Orwellian language, I can match title for title any of them they want to talk 

about. 

Thank you, Mr. Chair. 

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Mr. BYRNE. The gentlewoman yields back. 

The chair now recognizes the gentlewoman from Oregon, Ms. 

Bonamici, for five minutes. 

Ms. BONAMICI. Thank you very much, Mr. Chairman. 

And thank you, to our witnesses, for being here. 

I think it is a fascinating discussion. We are talking about a rule 

that was passed through a lengthy rulemaking process that is designed to streamline, modernize, and make more efficient, and reduce litigation in elections—that my colleagues are actually opposing this. It is a little bit baffling. 

And I also want to mention the process. The NLRB went through 

a lengthy—quite lengthy—public process in implementing this rule 

with, I understand, thousands of comments under the Administrative Procedure Act. Now, I know we are here under the Congressional Review Act. This is a fairly new experience for me because, frankly, it doesn’t 

come up that often. 

I don’t know what the standard is under the Congressional Review Act, but in light of the steps that are needed to get through 

the rulemaking process under the Administrative Procedures Act, I 

submit that they should be high—very high. 

And in fact, according to the Congressional Research Service, 

there has only been one rule that has been overturned since the 

Congressional Review Act passed in 1996. So this should be a very 

high standard. 

And as we know, there has already been a veto threat issued. 

There is a process, and it was followed by the NLRB. 

I want to say, Mr. Chairman, I am glad to serve on this committee and this subcommittee for many reasons, and among them 

is the role that this committee can play in protecting the rights of 

our hardworking constituents. 

The National Labor Relations Act is intended to promote workers’ rights and prevent employers from mistreating their employees, and the ability of workers to collectively bargain is what led 

to the rapid expansion of the middle class in America. And we in 

Congress need to continue to discuss how we can strengthen our 

economy and keep it on track, and we need to focus on supporting 

our workers. 

I also want to mention that I was proud to—when I was in the 

Oregon legislature—to support and work on the Worker Freedom 

Act. Oregon is one of the states that has actually banned captive 

audience meetings. 

Now, I wanted to mention also that this union election process 

should allow for fair consideration of union representation by all 

employees without undue employer influence, and the new rules 

from the NLRB are designed to serve that process. 

And I wanted to ask you, Ms. Crawford—first of all, thank you 

for coming and explaining what happened in your situation. Your 

story is compelling and it is important that we hear from you. And, 

as my colleague from Wisconsin mentioned, we should be hearing 

from other employers. 

Now, you describe a month-and-a-half delay from the time you 

filed your petition to the time your employer set a date. But given 

that the issue of charge nurses in your unit employee had already 

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been resolved, what reason did your employer provide for delaying 

the election? 

Ms. CRAWFORD. As far as I know, it was just the date that they 

set that they wanted to have the election on, so we conceded and 

agreed to go along with that. 

Ms. BONAMICI. So you are basically saying there was no good reason provided for delaying that. 

Ms. CRAWFORD. No. 

Ms. BONAMICI. So you describe your employer’s relentless antiunion campaign. Was the union or those employees—who was advocating for union membership? 

Were they able to match that campaign with a pro-collective bargaining campaign? Were they able to match that relentless antiunion campaign in getting those messages across? 

Ms. CRAWFORD. No. We tried, like I said, but the only information we had were home addresses. Even at work I tried passing— 

giving out fliers, getting information on my break time in the break 

room, which we don’t always get breaks. 

And that information that is given that I had put in those rooms 

were—I would put it out, it would get thrown away, I would put 

it out, it would get thrown away. So it was very difficult to get out 

information. 

Ms. BONAMICI. For you to communicate. 

Now, there was a comment made earlier today—I believe it was 

Mr. King who said that unions campaign for a long time and employers don’t. 

And I wonder, Mr. King, are you contending that employers really don’t know that their employees are attempting to unionize? 

Mr. KING. Congresswoman, that is true in many cases, particularly for small employers. But put that aside. We have had this 

back-and-forth on elementary fairness. 

It is true, employers communicate prior to the filing of the petition to the election. Unions do campaign for months, if not years. 

But this misses the whole point. 

Similar to general elections, the electorate—the people that 

vote—don’t really concentrate, often, on the issues at hand until 

shortly before the election. What we are saying here is there ought 

to be a minimum period of time for intelligent, thoughtful dialogue 

and debate, reasoned discussion, between the filing of the petition 

and the election. 

Ms. BONAMICI. Understood. I am going to reclaim my time and 

ask one more question before my time expires. 

And, Ms. Crawford, you know, for 50 years employers have had 

to provide employees’ home addresses. Don’t you agree that receiving an e-mail is less intrusive than having somebody knocking on 

your door? 

Mr. BYRNE. Very quickly, Ms. Crawford. 

Ms. CRAWFORD. Yes. Yes. I feel— 

Ms. BONAMICI. Thank you. And I have—my time is expired. 

Thank you, Mr. Chair. 

Mr. BYRNE. The gentlewoman yields back. 

The chair recognizes the gentleman from Wisconsin, Mr. 

Grothman, for five minutes. 

Mr. GROTHMAN. My question is for Mr. Taubman. 

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What is the average time right now between a petition and the 

representation election? 

Mr. TAUBMAN. I think those numbers are something like 40 days, 

under current law—40, 50 days, something like that, which seems 

wholly reasonable in any election, whether it is a certification or 

even a decertification. 

Mr. GROTHMAN. They give us more than 40 days when we run. 

About how many cases are delayed and how long? 

Mr. TAUBMAN. I really can’t speak to those numbers. 

I can tell you, as I pointed at in my testimony, since I have many 

clients who try to do decertifications, which you would think should 

be dealt with fairly and equally under the National Labor Relations Act. The decertifications are constantly blocked by union unfair labor practice charges. They go on for months and years, and 

some of that is in my written testimony. 

And when we asked the NLRB as part of this rule to just apply 

the rules across the board—whatever they were going to be, apply 

them across the board for certifications and decertifications—we 

were told, ‘‘No. Forget about it.’’ 

Mr. KING. Congressman, if I may, to answer your question, by 

the NLRB’s own standards, less than 6 percent of the elections 

have any type of delay associated with them. But that is not the 

issue here. That is not the issue. That is a red herring issue at 

best. 

Mr. GROTHMAN. Okay. 

Again, for Mr. Taubman, in your experience, does knowing the 

identity of the employees during the campaign have any effect on 

the way the employees vote—knowing the identity of the employees? 

Mr. TAUBMAN. I don’t believe so. 

Mr. GROTHMAN. Okay. 

One final question for Mr. Perl: In your experience, both as an 

NLRB employee and as an attorney representing employers before 

the NLRB, following the petition, what kind of contact do employers and their representatives have with the regional director? 

Mr. PERL. Well, employers, after the filing of a petition, would 

be communicating with members of the regional director’s staff to 

work out the time, date, and place for the election. And sometimes 

those discussions are consummated in several days; sometimes it 

is eight, nine days. 

But then that stipulation for certification agreement avoids a 

hearing, and it contributes to the fact that the median time for all 

elections held involving the National Labor Relations Board today 

is 38 days. And by any time target of the NLRB, the NLRB elections are timely held, by the board’s own statistics. 

Mr. GROTHMAN. How often do meetings like that lead to compromise in voluntary election agreements? 

Mr. PERL. Well, compromises take place by discussions among 

the parties. 

Now, there are some cases where a compromise cannot be 

reached. The case that Ms. Crawford cited involving the supervisory status of charge nurses—sometimes that is a litigable issue, 

and if it is not resolved pre-election and the charge nurses, for example, would vote, and if they are supervisors or not supervisors 

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that could affect the results of the election and involve years of litigation before a union would be certified or not certified. 

So some issues must be litigated prior to the election. Many 

issues get resolved through voluntary compromises in the regional 

office with the regional director and his or her staff. 

Mr. GROTHMAN. One final question: What— 

Mr. BYRNE. You have time. 

Mr. GROTHMAN.—what recourse does an employer have against 

a false statement a union makes or false information they give? 

Mr. PERL. Well, the law doesn’t outlaw false statements by labor 

organizations. There is no truth in lending law that is applicable 

to union statements. 

The only way the employer can overcome that is with an ability 

for it to communicate what the true facts are to the workforce, and 

that is one of the reasons, Congressman, you point out, that an employer needs ample time to overcome any misrepresentations, and 

that takes some reasonable period of time and not an accelerated 

period of time that is provided in the new rules. 

Mr. GROTHMAN. Just subjectively, do you think there are false 

statements made by unions in these elections? 

Mr. PERL. Well, anyone who has gone through an election understands that there is an opportunity on both sides to dispute the 

representations made by the other side. And unions have been 

doing this during their entire organizing campaign before it even 

files a petition. The only time the employer really can address the 

vital issues, as Mr. King suggested, when people are focused on the 

issues involved in the election, is after a petition is filed. 

The litmus test demonstrating— 

Mr. BYRNE. Please wrap up quickly. 

Mr. PERL.—that the most critical time between the petition and 

the election is the NLRB’s own rules on what is the objectionable 

period that you could file objections to the election. It is not prior 

to the election; it is after a petition is filed and before the election 

is held. That is the critical period, and that is the period we are 

saying an employer needs reasonable time to communicate with its 

employees. 

Mr. GROTHMAN. Thanks so much. 

Mr. BYRNE. The gentleman’s time is expired. 

I think we have come to the end of questions from members. 

I want to thank each and every one of you for your excellent testimony today, for your time to be here, for your patience with the 

committee and its members. 

Mr. Polis, do you have any closing remarks? 

Mr. POLIS. Thank you, Mr. Chairman. 

I want to thank our witnesses for spending their time with us 

in this hearing this morning. The story of Ms. Crawford is really 

a powerful testimony and a story that we remember as an example 

of one of the hundreds, if not thousands, of examples where employers have illegitimately used the current rules to their advantage, using the threat of a difficult process and indefinite delays to 

extract concessions from workers, often successfully delaying elections to the point of detriment for workers, using the personal information of workers against the workers’ efforts to form a union. 

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The relationship between the length of time it takes to hold an 

election and the illegal employer conduct is considerable, and the 

one in 10 cases where it takes more than 100 days to reach an election are far more than just mere outliers. 

After having taken into account the thousands of comments on 

all sides of the issue, the NLRB has released a reasonable, common-sense rule that will reduce frivolous litigation, save resources 

and taxpayer dollars, standardize the election process, crack down 

on manipulation and threats, provide more predictability for both 

companies and employees, and promote a level playing field. A 

level playing field is all that workers ask for to improve the quality 

of our communities and the economy. 

I yield back the balance of my time. 

Mr. BYRNE. Gentleman yields back. 

Let me sum up what I think we have heard today, very important testimony on a very significant issue. 

Mr. Perl said that the present rule of the National Labor Relations Board blows up the whole system of elections. I couldn’t agree 

more. 

This system has been in place for 70 years. I took labor law in 

law school in 1979. I have been practicing law using this law for 

half the time of its existence. 

And lawyers and both sides, unions and management on both 

sides, have lived with this system successfully—each side doesn’t 

always get to win; that is not the nature—for 70 years. And it has 

worked. It has worked for unions, obviously. They are winning over 

60 percent of their elections, so that is a pretty good win-loss 

record in this environment. 

And to solve what problem? What problem are we trying to solve 

here? 

Yes, there are going to be outlier issues, and Ms. Crawford gave 

really good testimony about a case that is truly an outlier. And we 

have outliers in legal proceedings. That happens. 

But in only 6 percent of the cases, according to the NLRB’s own 

data, do elections go more than 56 days. And in most cases, in the 

median cases, it is 38 days. 

Now, when we run for office the time between when we have 

qualifying in and when people actually vote for congressmen is a 

lot longer than 38 days, because we believe our voters, before they 

elect us, should have the time to listen to us and think about who 

they want to be their representative, and it creates the representative democracy we have today. 

So I have got to say, this is a dramatic change in the law for 

nothing, except to create problems for employers and employees. 

And let me focus the employees in the second point. This is an 

employee decision. It is not the union’s decision, and it is not management’s decision. 

It is the employees’ decision. They are the ones that go in that 

little voting booth an NLRB agent sets up and marks the ballot— 

that paper ballot they give them, yes or no. 

And that is a hard decision for them to make. They make it 

themselves, but also in talking with other employees and with their 

families because their families could be very definitely affected by 

this decision. 

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If a union takes employees out on strike, the employer has the 

right to cease paying that employee and providing benefits like 

health insurance, and that involves the family. And to give the employees the time to sit down with their fellow employees and their 

family members and say, ‘‘Is this a good decision for us—for me 

and my family’’ seems to me to be pretty fundamental if you care 

about employees. 

Now, if you don’t care about employees, if this is all about something else, then you wouldn’t be concerned about that. 

But I think we on this committee should be concerned about employees. And if you are concerned about employees, there ought to 

be time for these employees to make this decision. 

And the last point, the third point, that is perhaps the most disturbing, is what this rule is doing to the privacy of the American 

worker. 

You know, I don’t have too many of my constituents that come 

up to me and say, ‘‘Well, I really would like to have a shortened 

time for union election.’’ But I have plenty of people come up to me 

and say, ‘‘I am worried about the way my private information is 

accessed by people in a lot of different ways.’’ 

Now, employers have to get certain pieces of information from 

their employees. Sometimes it is because what we require them to 

get, and sometimes it is necessary. You have got to make sure you 

have information for providing health insurance, et cetera. 

And that information is kept, I will tell you, in most H.R. directors’ offices, kept in a locked cabinet with severe rules about who 

has access to it and what can happen with that information. And 

now we are going to tell employers that they have to divulge that 

information to an outside entity with no protections to the employee. 

I think that runs very counter to what we should be doing to protect the working people of America. And if they were here to be 

able to be heard—and, Ms. Crawford, I appreciate you being here— 

if we had more of them here I think we would hear a lot of concerns from them about that. 

So, I appreciate your testimony today. I appreciate the questions 

that came from the members. I think we have fleshed out this 

issue very well. 

I look forward to the action that will be taken on this matter. 

And at this point, this hearing is adjourned. 

[Additional submissions by Mr. King follow:] 

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[Additional submission by Ms. Wilson follows:] 

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[Whereupon, at 11:46 a.m., the Subcommittee was adjourned.] 

Æ 

CEWDOCROOM with DISTILLER