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CULTURE OF UNION FAVORITISM: THE 

RETURN OF THE NLRB’S AMBUSH 

ELECTION RULE 

HEARING 

BEFORE THE

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

HEARING HELD IN WASHINGTON, DC, MARCH 5, 2014 

Serial No. 113–48 

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 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Tom Price, Georgia 

Kenny Marchant, Texas 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Scott DesJarlais, Tennessee 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Susan W. Brooks, Indiana 

Richard Hudson, North Carolina 

Luke Messer, Indiana 

George Miller, California, 

Senior Democratic Member 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Rush Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

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 

Juliane Sullivan, Staff Director 

Jody Calemine, Minority Staff Director 

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(III) 

C O N T E N T S 

Page 

Hearing held on March 5, 2014 .............................................................................. 1 

Statement of Members: 

Kline, Hon. John, Chairman, Committee on Education and the Workforce 1 

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

Miller, Hon. George, senior Democratic member, Committee on Education 

and the Workforce ......................................................................................... 4 

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

Statement of Witnesses: 

Browne, Steve, Vice President of Human Resources, Larosa’s, Inc., Cincinnati, OH .................................................................................................... 16 

Prepared statement of ............................................................................... 18 

Davis, Doreen S., Partner, Jones Day, New York, NY .................................. 8 

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

Messenger, William, Staff Attorney, National Right to Work Legal Defense Foundation, Inc., Springfield, VA ...................................................... 35 

Prepared statement of ............................................................................... 37 

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

Alameda, California ...................................................................................... 25 

Prepared statement of ............................................................................... 27 

Additional Submissions: 

Mr. Browne’s response to questions submitted for the record ...................... 193 

Holt, Hon. Russ, a Representative in Congress from the State of New 

Jersey: 

Letter dated March 4, 2014 from five Members of the New Jersey 

Congressional Delegation and both U.S. Senators .............................. 169 

Questions submitted for the record ......................................................... 190 

Mr. Messenger: 

Supplemental Testimony of ...................................................................... 141 

Mr. Miller: 

Petition filed by International Union, United Automobile,, Aerospace 

and Agricultural Implement Workers of America (UAW) before 

the National Labor Relations Board (NLRB) ...................................... 58 

Tierney, Hon. John F., a Representative in Congress from the State 

of Massachusetts: 

Amicus Brief .............................................................................................. 123 

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(1) 

CULTURE OF UNION FAVORITISM: 

THE RETURN OF THE NLRB’S AMBUSH 

ELECTION RULE 

Wednesday, March 5, 2014 

U.S. House of Representatives 

Committee on Education and the Workforce 

Washington, D.C. 

The committee met, pursuant to call, at 10:04 a.m., in Room 

2175, Rayburn House Office Building, Hon. John Kline [chairman 

of the committee] presiding. 

Present: Representatives Kline, Wilson of South Carolina, Foxx, 

Roe, Walberg, Guthrie, DesJarlais, Rokita, Bucshon, Brooks, Hudson, Miller, Scott, Tierney, Holt, Davis, Grijalva, Bishop, Loebsack, 

Fudge, Wilson of Florida, Bonamici, and Pocan. 

Staff Present: Janelle Belland, Coalitions and Member Services 

Coordinator; Ed Gilroy, Director of Workforce Policy; Benjamin 

Hoog, Senior Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel; Nancy Locke, Chief Clerk; James Martin, Professional 

Staff Member; Daniel Murner, Press Assistant; Brian Newell, Deputy Communications Director; Krisann Pearce, General Counsel; 

Molly McLaughlin Salmi, Deputy Director of Workforce Policy; 

Alissa Strawcutter, Deputy Clerk; Alexa Turner, Legislative Assistant; Ali Al Falahi, Minority Systems Administrator; Tylease Alli, 

Minority Clerk/Intern and Fellow Coordinator; Jody Calemine, Minority Staff Director; Melissa Greenberg, Minority Staff Assistant; 

Scott Groginsky, Minority Education Policy Advisor; Eunice Ikene, 

Minority Staff Assistant; Brian Kennedy, Minority Senior Counsel; 

Julia Krahe, Minority Communications Director; Brian Levin, Minority Deputy Press Secretary/New Media Coordinator; Leticia 

Mederos, Minority Director of Labor Policy; Richard Miller, Minority Senior Labor Policy Advisor; Megan O’Reilly, Minority General 

Counsel; Michael Zola, Minority Deputy Staff Director; and Mark 

Zuckerman, Minority Senior Economic Advisor. 

Chairman KLINE. A quorum being present, the committee will 

come to order. 

Good morning. I would like to welcome our guests and thank our 

witnesses for being with us. For many of my colleagues, this hearing might evoke a sense of de ́ja` vu. Not too long ago, we debated 

a nearly identical ambush election rule proposed by the National 

Labor Relations Board that would stifle employers’ free speech and 

cripple workers’ free choice. 

CEWDOCROOM with DISTILLER

2 

In 2011, the House passed, with bipartisan support, a bill that 

would have protected the rise of workers, employers, and unions by 

reining in this radical proposal. Unfortunately, as is so often the 

case, Senate Democrats refused to defend our struggling workforce. 

This failure to act gave the Obama Labor Board a green light to 

continue its assault on America’s workplaces. As a result, the 

Board revived its deeply misguided rule in the desperate hope it 

will lead to more union members. 

The ambush election proposal gives employers only seven days to 

find legal counsel and appear before an NLRB regional officer at 

a preelection hearing. During that brief period of time, employers 

will have to identify every possible legal concern or basically forfeit 

the ability to raise additional concerns during the course of the 

hearing. The rule also delays answers to important questions such 

as determining the appropriate bargaining unit and voter eligibility 

until after workers have voted. 

Additionally, the proposed rule jeopardizes worker privacy by delivering to union organizers employees’ names, home and email addresses, work schedules, and other personal information. 

It has been almost three years since this proposal was first introduced, and it is just as bad now as it was back then. The Board 

should have used this time to build public support for changing 

longstanding policies governing union elections. It didn’t. The 

Board should have also used this time to address the roughly 

65,000 comments submitted during the last rulemaking process. It 

didn’t. 

And if our Democratic colleagues truly believe the current system 

is broken, they should have used this time to champion a bill that 

would enact these changes to the legislative process, but they 

didn’t. 

Instead, we are back where we were in 2011, confronting significant changes to labor law imposed through executive fiat without 

the consent of the American people or their elected representatives. 

This is the latest example of how disconnected the President and 

his allies are with the needs of working families. 

In 1959, then Senator John F. Kennedy advocated for a 30-day 

period between the filing of a union election petition and the election. Was Senator Kennedy advocating delay for the sake of delay? 

Of course not. Our 35th President stated that a waiting period is, 

quote, ‘‘an additional safeguard against rushing employees into an 

election where they are unfamiliar with the issues.’’ 

For decades, concerns about rushing employees into an election 

have been shared by a majority of the Board and addressed 

through a fair election process, one that provides workers time to 

consider the facts, hear from their employees, and consult with 

their close friends, family members, and coworkers as they try to 

make a fully informed decision. 

The Obama Board wants to tear down existing safeguards and 

instead impose an ambush election scheme that is meant to empower union bosses by jamming workers and silencing employers. 

The Board’s proposed rule is one more challenge workers and employers will have to face in the midst of this protracted jobs crisis. 

Mort Zuckerman, chairman and editor-in-chief of U.S. News and 

World Report recently wrote, ‘‘A more robust economy, stocked by 

CEWDOCROOM with DISTILLER

3 

growth oriented policies from Washington, would help produce the 

jobs and opportunities that millions of Americans need to climb the 

economic ladder.’’ 

The fundamental problem with the President’s labor agenda is 

this: it has done very little to help put our labor force back to work. 

Instead, it is designed to simply swell the ranks of dues-paying 

union members. Employees have the right to join or not join a 

union. Across the country, they continue to exercise that right. Federal law must ensure a level playing field and ultimately allow 

workers to make their own decisions. 

Next week, Mr. Roe and I will have an opportunity to meet with 

Chairman Pearce to discuss our concerns with his ambush election 

rule. If there are opportunities to work together to streamline the 

election process, like filing documents electronically, we are more 

than eager to help achieve a reasonable goal. However, if he is determined to ram through the regulatory process a rule that will 

harm protections enjoyed by workers, employers, and unions, then 

this committee will do what is necessary and stand by those we are 

elected to serve. 

I will now yield to our distinguished colleague, the senior Democratic member of the committee, Mr. Miller, for his opening remarks. 

[The statement of Chairman Kline follows:] 

Prepared Statement of Hon. John Kline, Chairman, Committee on 

Education and the Workforce 

Good morning. I’d like to welcome our guests and thank our witnesses for being 

with us. For many of my colleagues, this hearing might evoke a sense of deja vu. 

Not too long ago we debated a nearly identical ambush election rule proposed by 

the National Labor Relations Board that would stifle employers’ free speech and 

cripple workers’ free choice. In 2011 the House passed with bipartisan support a bill 

that would have protected the rights of workers, employers, and unions by reining 

in this radical proposal. 

Unfortunately, as is so often the case, the Democrat Senate refused to defend our 

struggling workforce. This failure to act gave the Obama labor board a green light 

to continue its assault on America’s workplaces. As a result, the board revived its 

deeply misguided rule in the desperate hope it will lead to more union members. 

The ambush election proposal gives employers only seven days to find legal counsel and appear before an NLRB regional officer at a pre-election hearing. During 

that brief period of time, employers will have to identify every possible legal concern 

or basically forfeit the ability to raise additional concerns during the course of the 

hearing. The rule also delays answers to important questions such as determining 

the appropriate bargaining unit and voter eligibility, until after workers have voted. 

Additionally, the proposed rule jeopardizes worker privacy by delivering to union organizers employees’ names, home and email addresses, work schedules, and other 

personal information. 

It’s been almost three years since this proposal was first introduced and it is just 

as bad now as it was back then. The board should have used this time to build public support for changing long-standing policies governing union elections. It didn’t. 

The board should have also used this time to address the roughly 65,000 comments 

submitted during the last rulemaking process. It didn’t. And if our democratic colleagues truly believe the current system is broken, they should have used this time 

to champion a bill that would enact these changes through the legislative process. 

But they didn’t. 

Instead, we are back where we were in 2011: Confronting significant changes to 

labor law imposed through executive fiat, without the consent of the American people or their elected representatives. This is the latest example of how disconnected 

the president and his allies are with the needs of working families. 

In 1959 then-Senator John F. Kennedy advocated for a 30-day period between the 

filing of a union election petition and the election. Was Senator Kennedy advocating 

delay for the sake of delay? Of course not. Our 35th president stated that a waiting 

CEWDOCROOM with DISTILLER

4 

period is ‘‘an additional safeguard against rushing employees into an election where 

they are unfamiliar with the issues.’’ 

For decades, concerns about rushing employees into an election have been shared 

by a majority of the board and addressed through a fair election process, one that 

provides workers time to consider the facts, hear from their employers, consult with 

their close friends, family members, and co-workers as they try to make a fully-informed decision. The Obama board wants to tear down existing safeguards and instead impose an ambush election scheme that is meant to empower union bosses 

by jamming workers and silencing employers. 

The board’s proposed rule is one more challenge workers and employers will have 

to face in the midst of this protracted jobs crisis. Mort Zuckerman, chairman and 

editor in chief of U.S. News and World Report, recently wrote, ‘‘A more robust economy, stoked by growth-oriented policies from Washington, would help produce the 

jobs and opportunities that millions of Americans need to climb the economic ladder.’’ 

The fundamental problem with the president’s labor agenda is this: It has done 

very little to help put our labor-force back to work. Instead, it is designed to simply 

swell the ranks of dues-paying union members. Employees have the right to join or 

not join a union; across the country they continue to exercise that right. Federal law 

must ensure a level playing field and ultimately allow workers to make their own 

decisions. 

Next week, Representative Roe and I will have an opportunity to meet with 

Chairman Pearce to discuss our concerns with his ambush election rule. If there are 

opportunities to work together to streamline the election process, like filing documents electronically, we are more than eager to help achieve a reasonable goal. 

However, if he is determined to ram through the regulatory process a rule that will 

harm protections enjoyed by workers, employers, and unions, then this committee 

will do what’s necessary and stand by those we are elected to serve. 

I will now yield to our distinguished colleague, the senior Democratic member of 

the committee, Representative Miller, for his opening remarks. 

Mr. MILLER. Thank you, Mr. Chairman, and good morning. 

Today’s hearing is about the National Labor Relations Board’s 

proposed rule for a fair workplace election process. This modest 

rule is designed to ensure that workers have a fair, modern, and 

standardized process for deciding whether to be represented by a 

union. The current broken process allows bad actors to use litigation to stall union elections for months. These delays give unscrupulous employers time to engage in threats, coercion, and intimidation of workers. 

A 2011 study by the Center on Labor Research and Education 

concluded that, ‘‘the longer the delay between the filing of the petition and the election date, the more likely it is that the NLRB will 

issue complaints charging employers with illegal activity.’’ The rule 

addresses these unwarranted delays in several ways. It provides 

for the electronic filing of petitions and other documents. It requires a more timely delivery of voter lists by an employer. It calls 

for a timely exchange of information regarding the issues in dispute. And it defers time-consuming litigation over some voter eligibility issues that can be resolved post-election if necessary. 

This rule does not, however, change the rather significant imbalance that workers face in an election process. Unions continue to 

have no right to access the workplace and the workers can be limited to campaigning during non-work hours. By contrast, employers 

still can campaign 24 hours a day, seven days a week, throughout 

the workplace. Employers can start campaigning the moment the 

worker is hired without any notice of a union. The employers can 

require workers to attend anti-union meetings and still fire workers who don’t attend. Employers can also force workers to meet 

one-on-one with supervisors about the union. While those and other 

CEWDOCROOM with DISTILLER

5 

imbalances remain, the new NLRB rule will help create a more 

clear, fair and standardized process to ensure that workers’ decisions about whether or not to choose a union is made more freely 

with less manipulation, threats, and intimidation. 

Now the majority has derisively said and wrongly said, it has 

suggested that these NLRB changes would allow for ambush elections. The rule does no such thing. Under the new rule, when a 

union organizes and files a petition, the election can still be weeks 

away. 

I do not want to say that it is an odd thing to complain about 

being ambushed by an election. Only something that is not already 

a democracy complains about being ambushed by a democracy. 

But there are plenty of people out there who are trying to ambush and undermine elections. In fact, we saw an ambush in the 

election just recently in Chattanooga, Tennessee, when Volkswagen 

workers were voting on whether or not to join the United Auto 

Workers. In this case, third parties made public comments on the 

eve and during the vote, clearly sabotaging a fair election for the 

1,300 workers at the Volkswagen plant. These outside parties included both well-funded interest groups and elected officials dead 

set on stopping the workers from joining the union. They were 

angry with Volkswagen because the company was officially neutral 

in the election and refused to interfere with the workers’ choice. 

They were angry that Volkswagen had a long track reported of successfully working with labor unions through joint work councils 

that innovate and reduce company costs. And they were angry that 

a majority of the workers had signed cards saying they wanted the 

UAW to represent them. If the election was free and fair, these 

workers might actually unionize. So these outside parties did what 

Volkswagen refused to do, they made threats. 

Here is what the real ambush looks like: the election was scheduled for three days of voting in February. On the first day of voting, Senator Corker held a press conference and dropped what the 

media called a bombshell. You can see the bombshell on our first 

poster over here to the side. Corker announced, ‘‘I had conversations today and based on those am assured that should workers 

vote against the UAW, Volkswagen will announce in coming weeks 

that it will manufacture the new midsized SUV here.’’ 

Hearing that Senator Corker had promised the workers more 

jobs if they voted against the union and threatened their economic 

security if they voted for the union, Frank Fisher, the chairman 

and CEO of Volkswagen in the United States, tried to set the 

record straight saying, ‘‘There is no connection between the Chattanooga employees’ decision on whether to be represented by a 

union and the decision about where to build the new product for 

the U.S. market.’’ 

Senator Corker could not let that denial stand. He replied that 

Volkswagen’s CEO was speaking from old talking points, implying 

that he had new and secret talking points. 

Other Republican legislators got into the action, too. You can see 

the media headlines on the other posters that illustrate just a few 

of these threats. One says, Bill Watson, a State Senator, says, ‘‘VW 

may lose State help if the UAW is voted in at Chattanooga plant.’’ 

Another reads, ‘‘Tennessee politicians threaten to kill VW incenCEWDOCROOM with DISTILLER

6 

tives if UAW wins election.’’ In other words, if you don’t vote the 

way we want you to vote, we will kill your job. Again, that is what 

real election ambush looks like, especially when it comes just as 

the voting starts. 

You might expect to see this kind of voting intimidation by public 

officials in Russia and China, but not here in the United States. 

I am interested in what today’s witnesses have to say about the 

shameful ambush and how the NLRB proposed rule might make 

our elections fairer and freer. 

I yield back the balance of my time. 

[The statement of Mr. Miller follows:] 

Prepared Statement of Hon. George Miller, Senior Democratic Member, 

Committee on Education and the Workforce 

Good morning, Chairman Kline. 

Today’s hearing is about the National Labor Relations Board’s proposed rule for 

a fairer workplace election process. 

This modest rule is designed to ensure that workers have a fair, modern, and 

standardized process for deciding whether to be represented by a union. 

The current broken process allows bad actors to use litigation to stall union elections for months. These delays give unscrupulous employers time to engage in 

threats, coercion, and intimidation of workers. 

A 2011 study by the Center for Labor Research and Education concluded that, 

‘‘The longer the delay between the filing of the petition and the election date, the 

more likely it is that the NRLB will issue complaints charging employers with illegal activity.’’ 

The rule addresses these unwarranted delays in several ways. 

It provides for the electronic filing of petitions and other documents. 

It requires a more timely delivery of voter lists by the employer. 

It calls for the timely exchange of information regarding issues in dispute. 

And it defers time-consuming litigation over some voter eligibility issues that can 

be resolved post-election, if necessary. 

This rule does not, however, change the rather significant imbalance that workers 

face in the election process. 

Unions continue to have no right to access the workplace and workers can be limited to campaigning during non-work times. 

By contrast, employers can still campaign 24 hours per day, seven days per week, 

throughout the workplace. 

Employers can start campaigning the moment a worker is hired, without notice 

to any union. 

Employers can require workers to attend anti-union meetings and can still fire 

workers who don’t attend. 

Employers can also force workers to meet one-on-one with supervisors about the 

union. 

While those and other imbalances remain, the new NLRB rule will help create 

a more clear, fair, and standardized process to ensure that a worker’s decision about 

whether to choose a union is made more freely, with less manipulation, threats, and 

intimidation. 

Now the majority has derisively—and wrongly—suggested that these NLRB 

changes would allow for ‘‘ambush elections.’’ 

The rule does no such thing. Under the new rule, when a union organizes and 

files a petition, the election can still be weeks away. 

I do want to say that it’s an odd thing to complain of being ambushed by an election. Only something that is not already a democracy complains about being ambushed by democracy. 

But there are plenty of people out there who are trying to ambush and undermine 

union elections. 

In fact, we saw an ambush of an election just recently, in Chattanooga, Tennessee, when Volkswagen workers were voting on whether to join the United Auto 

Workers. 

In this case, third parties made public comments on the eve of—and during—the 

vote, clearly sabotaging a fair election for the 1,300 workers at the Volkswagen 

plant. 

CEWDOCROOM with DISTILLER

7 

These outside parties included both well-funded interest groups and elected officials dead set on stopping the workers from joining the union. 

They were angry with Volkswagen because the company was officially neutral in 

the election. It refused to interfere with the workers’ choice. 

They were angry that Volkswagen had a long track record of successfully working 

with labor unions through joint work councils that innovate and reduce company 

costs. 

They were angry that a majority of the workers had signed cards saying they 

wanted the UAW to represent them. 

If the election were free and fair, these workers might actually unionize. So these 

outside parties did what Volkswagen refused to do. 

They made threats. 

Here’s what a real ambush looks like: 

The election was scheduled for three days of voting in February. 

On the first day of voting, Senator Corker held a press conference and dropped 

what the media called ‘‘a bombshell.’’ 

You can see that bombshell on our first poster. 

‘‘I’ve had conversations today and based on those am assured that should the 

workers vote against the UAW, Volkswagen will announce in the coming weeks that 

it will manufacture its new mid-size SUV here in Chattanooga.’’ 

Hearing that Senator Corker had promised the workers more jobs if they voted 

against the union, and threatened their economic security if they voted for the 

union, Frank Fischer, the chairman and CEO of Volkswagen in the United States, 

tried to set the record straight, saying: ‘‘There is no connection between our Chattanooga employees’ decision about whether to be represented by a union and the decision about where to build a new product for the U.S. market.’’ 

Senator Corker could not let that denial stand. He replied that Volkswagen’s CEO 

was speaking from old talking points, implying that he had the new, secret talking 

points. 

Other Republican legislators got in the action, too. 

You can see the media headlines on the other posters, which illustrate just a few 

of the threats. 

One says, ‘‘Bo Watson [a state senator] Says VW May Lose State Help If The 

UAW Is Voted In At Chattanooga Plant.’’ 

Another reads ‘‘Tenn. politicians threaten to kill VW incentives if UAW wins election.’’ In other words, if you don’t vote the way we want you to vote, we’ll kill your 

job. 

Again, that’s what a real election ambush looks like, especially when it comes just 

as the voting starts. 

You might expect to see this kind of bullying and intimidation of workers by public officials in Russia or China, but not here in the United States. 

I am interested in what today’s witnesses have to say about this shameful ambush, and how the NLRB proposed rule can make our elections fairer and freer. 

Chairman KLINE. I thank the gentleman. Not surprisingly, once 

again, Mr. Miller and I don’t exactly agree. 

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

permitted to submit written statements to be included in the permanent hearing record. 

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. First, we have Ms. Doreen Davis. She is a partner with the 

law firm Jones Day in New York, New York. Mr. Steve Browne is 

vice president of human resources at LaRosa in Cincinnati, Ohio. 

He is testifying on behalf of the Society for Human Resource Management. Ms. Caren Sencer, Esquire, is a shareholder with the law 

firm Weinberg, Roger & Rosenfeld, P.C., in Alameda, California. I 

think that is Alameda, California. And Mr. William Messenger is 

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8 

the staff attorney for the National Right to Work Legal Defense 

Foundation, Inc., in Springfield, Virginia. 

Welcome all. 

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

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, at which point 

I will ask you to please wrap up as expeditiously as you are able. 

After everyone has testified, members will each have five minutes 

to ask questions. While I am loathe to tap the gavel during witness 

testimony, I am less so with my colleagues. 

Again, I thank the witnesses for being here, and I recognize Ms. 

Davis for five minutes. 

STATEMENT OF DOREEN S. DAVIS, PARTNER, JONES DAY, NEW 

YORK, NEW YORK 

Ms. DAVIS. Good morning. Committee Chairman Kline and the 

members of the U.S. House Committee on Education and the Workforce. It is both an honor and a pleasure to appear before the committee as a witness. 

My name is Doreen Davis, and I am a partner in the Jones Day 

law firm. My testimony today should not be construed as legal advice as to any specific facts or circumstances. Further, my testimony is based upon my own personal views and does not necessarily reflect those of Jones Day or its attorneys. 

I have been practicing labor and employment law for over 35 

years, and I work with employer clients located in various parts of 

the country with varying workforce numbers with a focus on traditional labor law matters. My background includes substantial experience practicing before the National Labor Relations Board, where 

I started my career as a field attorney handling representation 

cases. I am a fellow of the College of Labor and Employment Lawyers. I served as the 73rd chancellor of the Philadelphia Bar Association, which is the oldest bar association in the United States, 

and I have received many accolades from legal publications, including the American Lawyer, Chambers USA, U.S. News and World 

Report, the Legal 500 United States. A copy of my CV is provided 

with a written version of my testimony as Attachment A. 

Mr. Chairman, I request that the entirety of my testimony and 

the attachments there to be entered into the record of hearing. 

Chairman KLINE. Without objection. 

Ms. DAVIS. My testimony this morning addresses the recent initiatives undertaken by the NLRB with respect to representation 

case procedures. There are a few points I would like to make orally 

on the record. 

First, the NLRB’s proposed rule ignores the tens of thousands of 

public comments submitted in response to the virtually identical 

rule proposed by the Board in 2011. Instead of taking the public’s 

commentary into account when reproposing changes to the representation case procedures, as the Board did to an extent when it 

revised the 2011 rule in December of 2011, the Board is returning 

to nearly the exact rule proposed in June of 2011. 

CEWDOCROOM with DISTILLER

9 

Despite inclusion in the record of public comments for the newly 

proposed rule, the Board is really doing a disservice to the administrative process by failing to take into consideration any comments 

when making adjustments to those representation case procedures, 

which were submitted in 2011. 

Second, and related to the issue of the Board’s failure to respond 

to a significant public commentary on the 2011 rule, the Board has 

failed to take into account watershed changes that have been made 

related to the area of labor law since 2011. For instance, in 2011, 

the Board issued the landmark decision of Specialty Healthcare, 

which overruled decades of prior law on bargaining unit determinations and allowed the certification of so-called micro-units. The contours of this new doctrine of law remain far from clear, and the 

Board is expected to issue new decisions applying Specialty 

Healthcare in the coming months. 

Moreover, the NLRB’s General Counsel, Richard Griffin, has also 

announced that following these decisions, he will issue further 

guidance for employers and employees on the new standard for bargaining unit determinations. With such significant changes pending on issues directly related to representation case elections, it is 

essential that the Board extend the time for comments on the new 

rules until after the new decisions and the general counsel’s guidance are published. This will allow the public, as well as the Board 

itself, to begin to understand the effect of Specialty Healthcare in 

conjunction with the proposed new representation rule. 

Third, the substance of the rule changes proposed by the Board 

present significant concerns for employers and employees alike 

and, to a large degree, conflicts with the clear language and intent 

of the National Labor Relations Act. Foremost among these is the 

new requirement for a non-petitioning party, generally the employer, to submit a comprehensive statement of position within 

seven days of the election petition, setting forth all possible issues 

presented by the petition. Any issues not raised in this statement 

are forever waived by the employer. 

Such a requirement, rather than streamlining and making more 

efficient the representation process, will almost certainly make 

them more litigious and drawn out. It will also lead to fewer stipulated or consent elections, which have always been the preference 

of the regional offices handling these cases. 

Additional concerns regarding the substance of the Board’s proposed rule, including significant due process concerns, are outlined 

in the written testimony. 

In conclusion, Mr. Chairman, I would be happy to take any questions the committee might have regarding my testimony. 

Chairman KLINE. Thank you. 

[The statement of Ms. Davis follows:] 

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Chairman KLINE. Mr. Browne, you are recognized for five minutes. 

STATEMENT OF STEVE BROWNE, VICE PRESIDENT OF HUMAN 

RESOURCES, LAROSA, CINCINNATI, OHIO, TESTIFYING ON 

BEHALF OF THE SOCIETY FOR HUMAN RESOURCE MANAGEMENT 

Mr. BROWNE. Chairman Kline, Ranking Member Miller, and distinguished members, my name is Steve Browne. I am the executive 

director of Human Resources at LaRosa, Incorporated, and I am 

appearing before you today on behalf of the Society for Human Resource Management, or SHRM, of which I have been a member for 

13 years. 

Thank you for the opportunity to testify today on the NLRB’s 

proposal to change the rules governing representation elections, 

otherwise known as the ambush election rule. This rule will fundamentally and needlessly alter the delicate balance that exists in 

current law which provides an employee the opportunity to make 

an educated and informed decision to form, join, or refrain from 

joining a labor organization. If adopted, the proposed regulation 

would cripple an employee’s opportunity to learn the employer’s 

perspective on the impact of collective bargaining on the workplace. 

Finally, and equally troubling, is that the NLRB is proposing this 

regulation absent any evidence that it is needed. 

Mr. Chairman, allow me to tell you a little bit about my organization. LaRosa is a family owned regional pizzeria change with 16 

pizzerias, a call center, manufacturing commissary, and a corporate 

office. I am proud to say we are celebrating our 60th anniversary 

this year, a rarity in the restaurant industry. We have a long tradition of promoting from within in our company. In fact, all of our 

assistant and general managers started out on the front line. 

LaRosa has been an employer of choice since its founding in 

1954. Our turnover is low because we take care of our team members, who in turn provide our guests with a great experience when 

they purchase our great food. We dedicate a significant amount of 

time and effort to communicating to our team members about important workplace decisions, which requires a great deal of planning and preparation. This is why I share SHRM’s concern with 

the Ambush election rule. 

LaRosa would not be prepared to effectively respond to the organization effort, nor would we be able to inform our 1,200 employees 

adequately about our perspective on the organizing effort prior to 

the election. Considering we have had two years now to educate 

our workforce on the Affordable Care Act, I cannot envision how we 

would possibly educate our team members about an organizing 

drive in 10 days. 

SHRM believes that shortening the time between filing a petition 

and the election will create an imbalance between the rights of employees, employers and labor organizations. This will severely limit 

an employer’s ability to share its perspective with employees about 

the organizing drive, thus creating a distinct disadvantage for employers. 

The rule’s expanded requirement for providing personal, confidential information about employers is also very disconcerting. 

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This requirement feels like an invasion of privacy for employees 

and an unnecessary data collection burden on the employers. 

At LaRosa, we don’t collect employees’ personal email addresses 

or unlisted phone numbers, as employees are reluctant to share 

this information. I can only speak for LaRosa, but I surmise this 

would be a similar reaction at many workplaces, that employees 

will be dismayed, if not outright angry, to learn that this type of 

personal information is being shared with a third party without 

consent. And, unfortunately, it does not appear that the rule has 

any safeguards in place to protect employee information from disclosure. 

Equally troubling is the new proposed requirement for the voter 

eligibility lists and employee contact information to be provided to 

the union within two workdays of the direction of election. While 

we update our employee information constantly at LaRosa, I am 

positive there are instances where the information is outdated or 

incorrect, and it may be next to impossible to accurately compile 

this information in two business days. 

Mr. Chairman, the ambush election rule appears to be a solution 

in search of a problem. NLRB data shows that elections are currently held rather expeditiously, on average within 38 days. Therefore, SHRM believes the rule’s reduced timeframe is unnecessary 

because current law provides employees ample time to hear from 

both the union and the employer prior to an election. 

SHRM recognizes the inherent rights of employees to form, join, 

assist, or refrain from joining a labor organization, and these rights 

need to continue to be protected. However, SHRM believes an employee’s decision regarding unionization should be based on relevant and timely information and free choice. 

Mr. Chairman, thank you, again, for allowing me to share 

SHRM’s views on the NLRB’s proposed ambush election rule. 

SHRM believes that this rule is imbalanced and therefore should 

be abandoned. I welcome your questions. 

Chairman KLINE. Thank you. 

[The statement of Mr. Browne follows:] 

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Chairman KLINE. Ms. Sencer, you are recognized. 

STATEMENT OF CAREN P. SENCER, ESQUIRE, SHAREHOLDER, 

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

Ms. SENCER. Chairman Kline, Ranking Member Miller, and 

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

on the importance of updating the NLRB’s procedures to reduce 

gamesmanship, promote efficiency, ensure uniformity among regions and effectuate the National Labor Relations Act’s goal of employee free choice. 

When a union files a petition on behalf of a group of workers 

seeking representation, the statute provides that the workers’ desire to vote for or against representation should be promptly honored. In the absence of an employer’s voluntary recognition, the 

workers also have an opportunity to vote in a timely election. But 

too often employers exploit the current rules and procedures to 

delay the election as long as possible or avoid an election altogether. 

The current rules and procedures favor the parties entering into 

a stipulated election agreement. If the agreed-upon date is within 

42 days from the date the petition was filed, it will generally be 

approved by the regional director. 

Of course, there is nothing wrong with encouraging parties to 

reach an agreement, but this agreement comes at a price. Often the 

employer will force the union to accept concessions, for example, to 

remove or add workers to the unit. It almost always requires agreeing to the 39th, 40th or 41st day for the election. The union agrees 

to these concessions and the dates because the alternative is a 

hearing process which results in an election not being held until a 

minimum of 65 days after the petition was filed. Simply by threatening a hearing, even when there is no genuine dispute, employers 

inject unnecessary delay into the representation process. 

The NLRB’s proposed rules take important steps towards reducing the opportunity for unnecessary delay. The region would have 

the discretion to refuse to open a hearing or to limit areas on which 

evidence can be presented. It would allow some disputes to be resolved if resolution is still necessary after the election. If a hearing 

is held, the streamlined process would result in a more focused, 

prompt hearing, and the record would be closed faster. Once the 

decision and direction of election is issued, the election would be 

held sooner, as the 25 days for pre-election review by the Board 

would no longer be necessary. The employer would retain an opportunity for full review after the election. 

I have been involved in approximately 200 representation cases. 

In one earlier this year, a client filed a petition seeking to represent a unit of one classification of employees working for a subcontractor of the Federal Government. This particular subcontractor has other collective bargaining agreements with the international union covering only the classification in question. The employer asked for an extension of time to hold the representation 

hearing. The parties assured a SIP for the representative. 

The day before the rescheduled hearing, it was clear there would 

be no stipulation because the employer sought to add an additional 

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job classification, doubling the size of the proposed bargaining unit. 

The employer also informed the region it would not be appearing 

at the scheduled hearing. The union still had to appear and provide 

testimony about its labor organization status, the Board’s jurisdiction over the employer and the propriety of the proposed unit, 

which, under Board law, was presumptively appropriate. 

That was February 12th. A direction of election has still not 

issued, and when it does, it is expected to include the mandatory 

25 day waiting period to allow the parties to seek review, notwithstanding the employer’s refusal to participate in the process. The 

employees filed their petition on January 31st. They will be lucky 

if they are able to cast their vote in early April. This is just one 

of many examples of delay for delay’s sake. 

If the proposed rules were in place, it is questionable whether 

the postponement of the representation hearing would have been 

granted. The morning of the hearing upon the employer’s failure to 

appear, the regional director could have issued a direction of election without holding a hearing, as there was no dispute regarding 

the scope of the bargaining unit. The employer would have had two 

days to produce the Excelsior list of employee names and contact 

information. Given the size of the unit, the union would have likely 

waived the right to have this information for a full 10 days. 

If the proposed rules were in place, the election would have already been held. Instead, the employees are prevented from exercising their right to vote. This case, with the employer’s gamesmanship of delaying the initial hearing and then boycotting the hearing 

process, highlights the importance of the NLRB’s proposed election 

rules in improving the election process. 

These rules are not revolutionary or radically different than the 

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

practices already being used and create consistency between the regions. The proposed rules reduce unnecessary delay, simplify the 

procedure and permit the parties to seek Board review after the 

election, at which time the parties know which, if any, prior disputes are still relevant or determinative. This saves time and 

money for employers, unions and the government while promoting 

the Act’s goal of employee free choice. 

Thank you, and I hope my experience with the Board’s procedures is helpful to this committee. 

Chairman KLINE. Thank you. 

[The statement of Ms. Sencer follows:] 

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Chairman KLINE. Mr. Messenger you are recognized for five minutes. 

STATEMENT OF WILLIAM MESSENGER, STAFF ATTORNEY, NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATION, 

INC., SPRINGFIELD, VIRGINIA 

Mr. MESSENGER. Thank you. Chairman Kline, Ranking Member 

Miller, and distinguished representatives. Thank you for the opportunity today to testify on the NLRB’s proposed ambush election 

rule. 

While the proposed rule has many flaws, which are detailed in 

my written statement to the committee, I would like to focus on 

just two in my opening remarks: They diminish the ability of employees to make a free and informed choice as to whether to 

unionize, and they infringe on employee privacy interests. 

First, the very purpose of a board election is to allow employees 

to make a free and informed choice on whether they wish to desire 

to unionize or not unionize. But the primary effect of this rule will 

be to significantly shorten the election period between the filing of 

an election petition and the election itself down to as little as 10 

days. This will necessarily impair the ability of employees to educate themselves about the pros and cons of unionization before 

being forced to take a very important vote. 

The shortened timeframe will also impair the ability of employees opposed to unionization to campaign themselves against the 

union, which is their legal right under the National Labor Relations Act. A union will obviously be fully prepared for an organizing 

campaign before it springs an election on a workplace. Employees, 

however, may be caught flatfooted and unable to counter-organize 

and put out their opposing messages. 

For example, members of this committee are obviously no strangers to election. But imagine if, instead of a regularly scheduled 

election, any rival for your seat could simply spring an election at 

any time if they get a significant number of signatures and that 

election would be conducted in two to three weeks after it is requested. That would not only be unfair to you as candidates in 

being able to get your message out before the vote, but more importantly, it would be unfair to voters, who wouldn’t have enough time 

to hear both sides of the issue before deciding who would represent 

them. That is effectively what the NLRB wants to impose on individual employees. 

And then second, the proposed rule contemplates a serious invasion of employees’ personal privacy. It requires the disclosure to the 

union and thus to the union’s supporters and agents personal email 

addresses, personal phone numbers and the employees’ works 

schedules (i.e., when they get off work and when they go to work), 

and this information is ripe for abuse, both deliberative abuses and 

also unintentional abuses. 

First, of course, this information will be deliberately used by 

unions to contacts individuals who have expressed no interest in 

being solicited by the union or who, for that matter, may be strongly opposed to the union. In fact, that is the very purpose of these 

disclosures, to allow unions to contact individuals who have expressed no interest in talking to the union. And then, after the 

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election is over, nothing requires that the union give the lists back 

to the NLRB nor could it effectively be required. The list is then 

in the union’s hands to be able to be used as they wish, perhaps 

for political purposes or to disseminate to their political allies or for 

any other purpose unrelated to the election. 

But perhaps even worse is the unintentional abuses that could 

happen from these disclosures. The union will necessarily have to 

share this information with its agents and supporters in order to 

use it in an organizing campaign. And then how those individuals 

use it, it can be misused for wrongful purposes. For example, individual union supporters, either with or without the union’s knowledge, could use this information to harass individuals who oppose 

the union, such as late night phone calls or email spam or perhaps 

to simply harass individuals against whom they have a personal 

grudge. 

The disclosures will facilitate property crime because the disclosures will include the individual’s work schedules, and obviously, 

if someone knows when you are at work, they also know when you 

are not at home. And perhaps most obviously of all, these disclosures will facilitate identity theft, which is a growing problem in 

this Nation, because again, the union or any of its supporters who 

can gain obtain access to this information will have enough information to sign individuals up for things. A good example is Patricia 

Pelletier, who CWA officials, in retaliation for attempting to decertify the union, signed her up for hundreds of unwanted magazine 

subscriptions that she then had to go through the process of trying 

to cancel one by one. 

And there is unfortunately no way to stop these abuses from occurring, once the information is given to the union. The NLRB has 

no effective way to police how the union will actually use this information, what safeguards are put on it and how it is disseminated 

for others. And, as mentioned before, once the information is given 

out, it can’t be taken back. The bell cannot be unrung. 

For this reason, the only solution to protect employees’ personal 

privacy is for the NLRB not to require the disclosure of personal 

information to the unions in the first place. 

Thank you for the opportunity to testify today. I move that my 

written statement be included in the record, and I look forward to 

any questions you may have. 

Chairman KLINE. Thank you. 

[The statement of Mr. Messenger follows:] 

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Chairman KLINE. All of your written statements will be included 

in their entirety in the record. Thank you all for your testimony, 

a panel of experts here, and thank you all for paying attention to 

the lights. I am trying to think when last we had a panel like this 

that finished on time. So thank you very much. 

Ms. Davis, in your testimony, you brought up the subject of what 

you call micro-units or micro-unions that was addressed in the Specialty Healthcare decision ruling of the NLRB back in 2011, and in 

that Specialty Healthcare decision, any party seeking to enlarge 

the unit must demonstrate employees in the large unit share, 

quote, ‘‘an overwhelming community of interest.’’ And that is the 

change; it is the ‘‘overwhelming community of interest.’’ 

Again, to you, Ms. Davis, when does the NLRB determine the appropriateness of the bargaining unit? 

Ms. DAVIS. Well, in accordance with current procedures, that 

happens before the election, either through agreement of the parties in a stipulated election agreement or by an election held by a 

hearing officer at the regional office and then a decision issued by 

the regional director prior to the election actually being ordered. 

Chairman KLINE. And so do you see a change or a threat to that 

in the proposed ambush election rule? 

Ms. DAVIS. Absolutely, because there will be no opportunity to 

litigate the appropriate bargaining unit before the election was 

scheduled. All issues under the proposed rules are being left until 

post-election, which would create a number of difficulties in terms 

of the representation case process for employers. Not only the 

breadth of the bargaining unit, which is what we are talking about 

under Specialty Healthcare, which groups will be included or not 

included, but also there are individual eligibility issues that are determined under the current processes before the election takes 

place; whether an individual is eligible to vote, whether that individual is a supervisor or not. It is a very important determination 

that needs to be made in the process because supervisors, under 

the National Labor Relations Act, are agents of the employer, and 

if they break any of the rules, the employer has broken the rules, 

which will lead to an election being overturned and possibly a separate unfair labor process. 

So it is important for certainty of the process that the employer 

knows who is in the voting unit and who isn’t; who is a supervisor 

and who isn’t. The new rules ignore that and are going to make 

a complete mess out of that process. 

Chairman KLINE. So you were suggesting also in your testimony 

that there be an extension to the comment period, as I recall. Could 

you explain the relationship of that suggestion for an extension of 

the comment period to your discussion that you just went through 

very thoughtfully and thoroughly with Specialty Healthcare and 

the definition of supervisors? 

Ms. DAVIS. Yes, sir. There are a number of cases currently pending before the National Labor Relations Board about applying the 

Specialty Healthcare standard, which, as you can tell by its name, 

was a case that involved the health care industry, but now it is 

being applied to the retail sector. 

Two cases that are pending, one involves Macy’s and one is 

Bergdorf Goodman, one of my favorite stores, that happens to do 

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with salespeople, shoe salespeople, and whether or not they are an 

appropriate bargaining unit. For the Board to issue the decisions 

that are pending to give clarity to the breadth of the Specialty 

Healthcare decision, is it going to apply in every industry? Is it 

going to apply across all sorts of workforces? And for the General 

Counsel Griffin, who said he is going to issue specific guidelines regarding Specialty Healthcare, it would be extremely important for 

employers to know that before there are any changes to the representation case rules for the reasons that I outlined, that there is 

not going to be an opportunity to litigate these issues prior to an 

election being ordered. 

Chairman KLINE. Okay. So this is a horse and cart essentially 

issue. 

Ms. DAVIS. It is. 

Chairman KLINE. And your position, your argument is that you 

need to get the clarity on the specialty ruling from the NLRB before you move to the ambush election? 

Ms. DAVIS. Yes, because we need to have the parameters established of that decision and what it is going to mean across the 

board. 

Chairman KLINE. Okay. In a probably a futile effort to set the 

example here, I see my light has turned to yellow, so I will yield 

back and recognize Mr. Miller. 

Mr. MILLER. Thank you, Mr. Chairman. 

And before I begin my questions, I would like to ask unanimous 

consent that the petition filed by UAW before the National Labor 

Relations Board be made part of this hearing. 

Chairman KLINE. Without objection. 

[The information follows:] 

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Mr. MILLER. Thank you. Ms. Sencer, in my opening remarks, I 

referred to statements made by prominent politicians, including 

United States Senator Bob Corker, prior to the recent UAW election at the Volkswagen plant in Chattanooga, Tennessee. Following 

the election, UAW filed a complaint with the NLRB alleging interference by politicians, like Senator Corker, interfered with the representation election in Tennessee. 

Can you speak about the goals of representation elections to provide employees with a free choice whether to join a union, and how 

could comments from politicians from Tennessee have tainted that 

election process? Are there cases where the Board has considered 

the statements by third parties in considering whether or not to 

order new elections? 

Ms. SENCER. There is a whole line of cases about interferences 

before an election. 

Chairman KLINE. Microphone, please. 

Ms. SENCER. Sorry. There is a whole line of cases regarding interference by third parties inside elections, and the goal of the National Labor Relations Board is to have an election, which has laboratory conditions that creates this kind of falsehood that employees are in a bubble and nothing should disturb that bubble. 

Whether or not statements of third parties interfere with that 

bubble is to some degree based on the dissemination, how many 

people hear these statements, and then the nature of the statements themselves. 

General statements of support or nonsupport for unionization are 

generally not seen as to interfere with the right to vote, but threats 

or benefits that can be carried out by the party speaking generally 

are seen to be interference with an election. And when an election 

is interfered with, when the laboratory conditions are disturbed, 

there is a sense that there is fear and coercion when the vote is 

taking place and this results generally in a re-run election. 

Mr. MILLER. Thank you. You mentioned in your statement, I believe, about the length of time, what lengthening that time means 

and what happens in that election process with that lengthening 

of time. 

Ms. SENCER. Sure. The election process under even the proposed 

rule does not have a set period of time in which it is going to happen. There would still in fact be pre-election hearings if necessary 

when the number of people or the amount of classifications in dispute is more than 20 percent of the unit that is being proposed by 

the union. So the idea that we are not going to have any pre-election hearings and we are not going to know the scope of the bargaining unit before the election, I don’t think is accurate under the 

terms of the proposed rule. 

But the statistics show and the studies show that in fact most 

of the most egregious unfair labor practices, which are even a higher standard than objectionable conduct that interferes with the 

election, happens in the days right before the filing of the petition, 

giving rise to the belief that employers know about the petition 

prior to the petition being filed. And there is research that also 

shows and my experience also shows that the longer the time between the petition being filed and the election being held, the more 

likely there will be behavior by the employer that results, not just 

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in objectionable behaviors that could interfere with an election, but 

actually unfair labor practice, not just charges filed by the union, 

but complaints issued by the region, which means that it is not 

that I am saying it or the union is saying it, but the independent 

investigation of the Board agents and field attorneys has shown 

that there is something worth going to trial on because it seems 

that the acts of the employer have interfered with the ability of the 

employees to have a free choice and open vote. 

Mr. MILLER. As I understand it, under the current process, employers can campaign 24 hours a day with their employees. They 

can employ this all throughout the workweek, all throughout the 

time the employee is at the plant. And they have, obviously, access 

to information. They can call them at home. They can ask them to 

come to meetings; even before the petition, they can hold meetings 

about unionization about the workplace, and they have all of that 

access. The suggestion is that somehow now to give expanded information about the employees to the union, that somehow that is an 

absolute abuse of the process. 

Can you comment on that and what your experience has been? 

Ms. SENCER. Sure. Well, since 1966 the Board has required an 

employer provide the union with the home addresses of the employees in the bargaining unit, so the idea that this is some kind of 

new invasion on privacy doesn’t really hold much water. Since 

1966, the rule has been in place that the home addresses have to 

provided. 

Mr. MILLER. Do you know of any improper disclosing of that information? 

Ms. SENCER. I don’t know of any improper disclosing of that information, and it seems to me that a union would have lots of incentives not to disclose that information improperly. This is a 

group of people that they are trying to explain unions to that they 

hope to have as members. It wouldn’t serve any purpose for them 

to disclose that information, just like employers already have that 

information, and we don’t see employers wrongly using that information either. 

Mr. MILLER. Thank you very much. 

I yield back. 

Chairman KLINE. I thank the gentleman. 

Mr. Walberg, you are recognized. 

Mr. WALBERG. Thank you, Mr. Chairman. 

You have given me voice here. I appreciate the panel being here. 

Mr. Messenger, just to make sure I understand it correctly, the 

new proposed rules require employers to turn over to a petitioning 

union an electronic list of all their employees’ telephone numbers, 

email addresses, and a number of other personal pieces of information. Am I correct in understanding that? 

Mr. MESSENGER. Yes. 

Mr. WALBERG. And, Mr. Browne, as I understood from your testimony, you don’t keep most of that list. 

Mr. BROWNE. We don’t keep the electronic side of things and unlisted phone numbers. 

Mr. WALBERG. Unlisted phone—what about email addresses? 

Mr. BROWNE. No, sir, we do not. 

Mr. WALBERG. So those are not there. 

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Mr. BROWNE. No. 

Mr. WALBERG. Ms. Davis, what problems would develop for Mr. 

Browne’s company if they could not hand over an electronic list of 

all of this information to a union requesting it? 

Ms. DAVIS. Elections are automatically overturned if the current 

Excelsior list is not presented in its correct form and at the correct 

time, and the rule would be the same under the proposed rules for 

the new additional information that is required. 

Mr. WALBERG. What if the information isn’t fully accurate, such 

as an email address that was changed recently and never reported 

to the employer? 

Ms. DAVIS. Elections can be overturned on that basis. 

Mr. WALBERG. On that simple basis. 

Ms. DAVIS. Yes. 

Mr. WALBERG. Mr. Messenger, do employees gain any right to 

privacy under these new rules? Any right? 

Mr. MESSENGER. No, they do not. There is nothing in these rules 

that guarantee employees’ personal privacy. There is no option for 

them to opt out the disclosures, not that such an option would even 

be effective given the short time frames. But there are no protections for employee privacy. The union is given the information to 

effectively use as it will in the organizing campaign. 

Mr. WALBERG. No right to privacy. 

Mr. MESSENGER. Yes. 

Mr. WALBERG. Mr. Browne, in your testimony, you say that 

LaRosa has 1,200 employees, most of which work part time. 

Mr. BROWNE. Yes, sir. 

Mr. WALBERG. If election times were significantly shortened, how 

would this impact your ability to communicate with your employees? 

Mr. BROWNE. I think it would be very difficult, Mr. Representative, because we have people who work as short as two hours on 

a Saturday night, and if something was filed in the first part of the 

week, by the time I would get to them, we would be six days into 

the notification. So since our employees work variable work schedules at variable times, it would be hard to get everybody at one 

time. 

Mr. WALBERG. Ms. Davis, what kind of costs are we talking 

about to a small business to incur during this time to deal with the 

proposed rules? 

Ms. DAVIS. Yes, Mr. Representative. Most small businesses do 

not have a labor lawyer at the ready. They may not have ever had 

an occasion to hire a labor lawyer in the past. So, in a short period 

of time here, no more than seven days, they will be required to 

seek and try to obtain counsel, to educate that counsel about their 

business, because don’t forget, under the proposed rules now, the 

statement of position has to be filed no later than seven days, raising every possible issue, or it can be waived. I can tell you, under 

my 35 years, it is challenging under current rules to get up to 

speed— 

Mr. WALBERG. I guess, going with that train, how long does it 

typically take you to develop the information first and ultimately 

then to develop the defense, the case that goes with it? 

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Ms. DAVIS. Well, under the current rules, sometimes we are required to do it as soon as 10 days, but not seven days, and under 

the current rules, we can litigate at the pre-election conference, but 

we still have an opportunity. We haven’t waived necessarily issues 

that weren’t raised in the pre-election conference. Issues can still 

be raised by means of challenging ballots of voters at the election. 

You can still raise an issue about their eligibility to vote. 

Under the new rules, there would be no opportunity to do that, 

unless you had stated it in your statement of position, which is due 

no sooner than—no later than, I am sorry, seven days after the petition is filed. So it is very challenging for small employers. It is 

equally challenging for large employers, because as an outside 

counsel, I have to learn their business, how it operates, which 

group of employees interact with whom, which employees have a 

community of interest with others. Do they have similar wages, 

hours, working conditions, supervision? Is what they do at that 

company related to what another employee does and how? There 

are many things that have to be learned in order to effectively represent an employer in these kinds of proceedings, and that is all 

being very much short-circuited under these proposed rules. 

Mr. WALBERG. Thank you. 

I yield back. 

Chairman KLINE. I thank the gentleman. 

Mr. Scott, you are recognized. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Ms. Sencer, on the law on threatening to move jobs in retaliation 

for legal labor organizing, are there examples where elections have 

been overturned? 

Ms. SENCER. Yes. If an employer were to make the kind of statements that we heard in, for example, in the UAW case here that 

were coming from the politicians, it is quite likely, I don’t want 

to—obviously, you can never 100 percent predict, but quite likely 

the election would be overturned. It is this concept that they call 

the fist inside the velvet glove, where the person who has the control and the ability to make decisions that affect your job, when 

they say something that is either a threat or a benefit, it is taken 

very seriously in interfering with laboratory conditions. 

Mr. SCOTT. And elections have been overturned when that happened? 

Ms. SENCER. Yes. 

Mr. SCOTT. Have elections not been overturned when that happens? 

Ms. SENCER. It depends upon the nature of the statement made, 

the person who is making that statement, and whether or not 

someone higher than that person in the organization has effectively 

disclaimed that statement. In some of those cases, the election has 

not been overturned. But where it is not disclaimed or with someone with a higher level of information or claiming to have a higher 

level of information rebuts the disclaiming, then the disclaimer is 

not efficient, and we are back to the stage where we have the 

threats and intimidation. 

Mr. SCOTT. Exactly how do the new proposed rules change any 

of that? 

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Ms. SENCER. In some degree, they won’t address too much of 

that, other than the timeframe. The studies show and my experience shows that the longer a petition is pending before the election 

is held, the more likely you are to have these types of situations 

where threats are made. In one case that I can think of that had 

been going on for an extended period of time due to pre-election 

litigation, two days before the vote the employer fired one of the 

main union supporters in a very public way on a claim that they 

had been involved in harassing another employee. The video evidence shows there was no such interaction. But at that point, the 

damage had already been done. The election wound up being invalid and, due to situations beyond either the employer or the 

union’s control, was never rerun because the facility was sold. 

Mr. SCOTT. Now, a comment was made about the ability of the 

organizing to contact members of the bargaining unit. Can you 

comment on whether or not technical things, like an email address 

not being correct, could be cause for overturning an election? 

Ms. SENCER. In my experience the Excelsior list that unions currently get with the home addresses, it frequently has inaccuracies. 

When an inaccuracy is found, the union raises it to the region. The 

region raises it to the employer, and the employer has an opportunity to try to cure the list. I have never seen a case that is actually overturned because of poor addresses on the Excelsior list as 

much as I would like to have seen it overturned on that. 

If the employer does not have certain types of information, the 

employer, under the proposed rules, would not be required to gather that information. So if you don’t gather email addresses, the employer would not be required to go solicit email addresses from its 

employees in order to put them on the list. They are only required 

to provide the information that they have. And it is presumed, because the standards required by the Fair Labor Standards Act, 

that every employer already has the home addresses of employees 

and is ready to provide those. 

Mr. SCOTT. How difficult is it to provide, if you have the list, 

other than just run off the list? Is it logistically difficult to provide 

such a list? 

Ms. SENCER. Generally not. Almost every employer of any size 

uses an electronic database to do its payroll at this point anyway. 

If you are producing electronic payrolls, you already have those addresses that are required to be on the pay stub in an electronic format. If you have any size employer, I mean, I cannot imagine actually looking at LaRosa’s with 1,200 employees, that it doesn’t have 

the home addresses and the phone numbers for these variable shift 

employees already in an electronic format that could be pulled and 

submitted to the region. 

Mr. SCOTT. Can you say a word about the privacy of the workers 

when the information is released? 

Ms. SENCER. I am not aware of any cases where the information 

has been released where it has been used for improper purposes. 

I understand that Mr. Messenger believes that he has a case about 

that. The employer has this information already. We do not see the 

employers abusing it because the employees would rightfully be 

upset. The same would be true if the union disclosed that information. But the union doesn’t, because it is in the union’s interest to 

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make sure this information is only used in the appropriate manner, 

because this is a group of people that they are trying to convince 

that they are the right choice for. It doesn’t make any sense to disclose that information, and I am not aware of those types of disclosures ever happening. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Chairman KLINE. I thank the gentleman. 

Dr. DesJarlais, you are recognized. 

Mr. DESJARLAIS. Thank you, Mr. Chairman. 

And thank you to all of our witnesses for appearing here today. 

I appreciate that. 

Recently workers at the Volkswagen plant in Chattanooga, many 

who lived in my neighboring Fourth District, voted against unionizing their workforce. It was encouraging to see a free and robust 

debate concluded by a fair secret ballot election. 

Workers deserve access to a broad spectrum of ideas with which 

to make their decisions whether or not to unionize. Unfortunately, 

under the recently repurposed rules, future debates like these could 

be limited, forcing employees to make incredibly important decisions without the benefit of full accounting of the facts. 

Mr. Messenger, under current law, what can a union do or say 

to employees during an organizing campaign? 

Mr. MESSENGER. Effectively anything that is not a direct threat. 

Board law provides that if a union makes a promise or a threat, 

it is only considered actionable or objectionable if the union can actually carry it out, the threat. And the board has held that if a 

union makes promises about what it is able to do, the union is not 

actually able to do it; it is contingent upon future bargaining. So 

a union is effectively able to promise virtually anything it wants 

or predict any dire consequences that it wants as the result of 

unionization. 

Basically, one of the few things a union can’t do is directly 

threaten an employee, because it could carry that threat out. But 

other than, that the union is generally free to state whatever it 

likes about future consequences of unionization. 

Mr. DESJARLAIS. What resources do employees have to kind of 

separate the facts from the rhetoric? 

Mr. MESSENGER. Only information that they received from other 

parties, their coworkers, for one. But also a very important source 

of information is their employer. And under these rules, the employers have very little time to prepare for a campaign and get out 

information, which is particularly difficult for employers, because 

unlike unions, there is a host of restrictions on what employers can 

say. It is a virtual land mine, or minefield, of things they can say 

wrong that can be considered unfair labor practices or to taint the 

election. So they need to hire labor counsel and all the rest to prepare to be able to get out what information they can. And these 

rules significantly shorten the timeframe for them to be able to do 

that and thus diminish the amount of information that employees 

have available to them. 

Mr. DESJARLAIS. In your experience, do unions routinely provide 

employees they seek to organize information about itself or themselves? 

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Mr. MESSENGER. Only favorable information that presents them 

in a good view. Unions are ultimately campaign organizations, and 

what they do, it is what they do for a living or as a business. So 

they test what they do, and they only present what they think will 

be effective in ultimately getting an employee to sign a card or to 

vote for them. They are under no obligation to provide any other 

information about the downsides of unionization or anything that 

is even fair or balanced. 

Mr. DESJARLAIS. Do you find that they would usually disclose 

their constitutions, their bylaws, results of unfair labor practice 

charges, results of negotiations for first contracts, past records with 

other employees, bargaining history or things of that sort? 

Mr. MESSENGER. No, unless the union believes that one of those 

facts that it can cherry-pick out will make it look favorable to the 

employees it is trying to unionize. But it certainly doesn’t fully disclose the pros and cons of unionization, only the pros. 

Mr. DESJARLAIS. Ms. Davis, would you add anything to that? 

Ms. DAVIS. I would certainly agree to that, based on my experience. Normally the responsibility for educating the employees 

about the list of items that you just read off rests with the employer, not with the union. 

Mr. DESJARLAIS. Okay. That is all I have. 

Chairman KLINE. I thank the gentleman. 

Mr. Tierney, you are recognized. 

Mr. TIERNEY. Thank you, Mr. Chairman. 

Mr. Messenger, I would like to read a brief passage to you. I 

quote, ‘‘an appearance of government neutrality is just as necessary 

for free and fair elections as is the appearance of Board neutrality. 

Failure to require it in Board certification elections will open the 

floodgates to interference by Federal, State, and local officials seeking to curry favor with union officials or employers. In order to protect employee free choice and to protect the Board’s exclusive jurisdiction over representational proceedings, it is imperative that the 

Board find objectionable conduct by government officials that can 

be construed as a State action in support of a union.’’ 

Do you agree with that statement? 

Mr. MESSENGER. It depends on its context, and I think I may 

know where that is from. 

Mr. TIERNEY. Well, that is right. And the context was in the very 

amicus brief that you signed on October 26, 2007, urging the National Labor Relations Board to set aside the results of the union 

election conducted at Trump Plaza in March of that same year. 

Mr. Chairman, I ask unanimous consent that the amicus brief to 

which I am referring be entered in the record. 

Chairman KLINE. Without objection. 

[The information follows:] 

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Mr. TIERNEY. And I would also ask that the record reflect that 

Mr. Messenger signed that brief in his capacity with the National 

Right to Work Legal Defense Foundation, which he is representing 

here today. 

Chairman KLINE. Without objection. 

Mr. TIERNEY. Thank you. 

So, Mr. Messenger, in your brief, you will recall that you took 

issue with our former colleague Rob Andrews and his, to quote 

your words in the amicus brief, ‘‘objectionable conduct that destroyed the laboratory conditions for a free and fair election.’’ Is 

that correct? 

Mr. MESSENGER. Yes. But the situation is rather distinguishable. 

Mr. TIERNEY. That is exactly how you put it in that case. I am 

just quoting you on your brief. 

Has the National Right to Work Legal Defense Foundation 

issued any formal statement criticizing Senator Corker’s statement 

and criticizing Senator Corker for using his authority to influence 

the recent UAW Volkswagen union election in Chattanooga? 

Mr. MESSENGER. Not to my knowledge. 

Mr. TIERNEY. Okay. So I am asking you now to explain to us how 

what former Representative Andrews said or did constituted, in 

your words, objectionable conduct, but what Senator Corker said 

doesn’t? 

Mr. MESSENGER. Because what happened in Representative Andrews’ situation is that he took an action that could be construed 

as having legal effect. Mainly two to three days before an election 

at Trump Plaza amongst dealers, he and the UAW conducted a 

ceremony in which he certified that the union was actually the majority of the employees based upon cards. 

Mr. TIERNEY. Now, if I direct you to Senator Corker’s statement, 

he says ‘‘I have had conversations today and, based on those, am 

assured that should the workers vote against the UAW, Volkswagen will announce in the coming weeks that it will manufacture 

its new midsized SUV here in Chattanooga.’’ 

It sounds like he has some pretty official inside information that 

he is imparting and sounds that, as a United States Senator, that 

maybe he has the authority to do something about it, wouldn’t you 

agree? 

Mr. MESSENGER. Not authority to do something about it. Volkswagen will determine where it puts its SUVs. 

Mr. TIERNEY. Let me ask, Ms. Sencer, these statements were 

made really close to the election date itself, correct? 

Ms. SENCER. They were actually made during the course of the 

election. 

Mr. TIERNEY. During the course of the election, and that is why 

the newspapers reported it as a bombshell, right? 

Ms. SENCER. Yes. Probably. 

Mr. TIERNEY. Now, if the CEO of the company had made that 

statement, would it have been an unfair labor practice? 

Ms. SENCER. Yes, and most likely—well, they wouldn’t have to 

show that it was an unfair labor practice. They would only have 

to show that it was objectionable to affect the election. But it most 

likely also would be an unfair labor practice. 

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Mr. TIERNEY. Now, Senator Corker’s statement was refuted by 

Mr. Fisher, the chief executive, right after he said it or close to the 

time he said it? 

Ms. SENCER. Yes. 

Mr. TIERNEY. But, then again, we see Senator Corker purports 

to have better information— 

Ms. SENCER. Yes. 

Mr. TIERNEY.—than the CEO of the corporation. So does that 

then nullify what Mr. Fisher tried to do? 

Ms. SENCER. It is, because Mr. Corker then said that I have new 

talking points as compared to Mr. Fisher’s old talking points. 

Mr. TIERNEY. So, in your estimation, is it likely there could be 

a challenge that there was an unfair labor practice involved here? 

Ms. SENCER. There is likely to be a challenge of that. And that 

is part of the basis from the objections, from what I understand. 

Mr. TIERNEY. And, in your opinion, is that challenge likely to be 

successful? 

Ms. SENCER. As to the objections to the election, I would think 

that it probably will be. 

Mr. TIERNEY. Thank you. 

I have no further questions. Yield back. 

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Chairman KLINE. I thank the gentleman. 

Dr. Roe, you are recognized. 

Mr. ROE. I thank the chairman for recognition. 

Just to clear the record up a little bit, in the Volkswagen vote 

that just occurred a week or so ago, the union had two years of unfettered access to the employees of that company—two years. 

And at the time when Volkswagen was brought to Chattanooga, 

Mayor Corker—he has been in the Senate now the seventh year— 

Mayor Corker—his eighth year, I guess—had a lot to do with that 

company coming there, along with our Democratic Governor, Governor Phil Bredesen, at the time. And what Senator Corker said, 

he has no control whatsoever of what goes on with that as a U.S.— 

if he were the mayor or he were the Governor, that would be one 

thing, but he is not. And I think he exercised his right of free 

speech to say what he thought about that, as people say. 

And we don’t seem to hear President Obama being talked about 

here when he spoke in favor of this union vote policy. 

Look, I think I am going to give a shameless shout-out for one 

of my bills, the Secret Ballot Protection Act, which I think right 

now we need, more than ever we need. 

And I grew up in a union household in Tennessee, a factory 

worker’s son. And I understand that unions have a place, they have 

a right to be there. 

And the NLRB’s job, in my opinion, is to be fair—they are like 

the referees in a ball game. They are supposed to be the ones who 

give both sides a fair hearing. And you have a vigorous debate, and 

then you have an election, and who wins. 

And, look, there is always going to be somebody at the buzzer 

when you get fouled or you think you got fouled in a basketball 

game, that you missed a shot because the referee missed a call. I 

think this was done fairly. The German workers’ council from 

across the ocean spoke up about this. So I think it was a fair election, and we will see how it works out. And if there is another election, so be it, as long as it is a fair and free election. 

I want to ask Mr. Browne, why do you believe employers—and 

I think of my own business with 450 employees. Why do you believe employers need to seek outside counsel? 

Mr. BROWNE. In my situation at LaRosa, I have a very limited 

HR staff: there is myself, a full-time HR manager, and three parttime specialists in payroll, benefits, and recruiting. 

I am very versed on the NLRA because I have been in HR for 

25-plus years, but in the instance of being faced with an organizing 

campaign, I would want to seek outside counsel to make sure that 

we remain objective, that we remain compliant, and that we remain informed on the steps to do things properly. 

Mr. ROE. Yeah, you don’t have, as we don’t have, the expertise 

to deal. We would have to hire counsel— 

Mr. BROWNE. Yes, sir. 

Mr. ROE.—sitting down here. 

Now, a second question. Any of you, Mr. Messenger or anyone 

can take this. What is the average time between the petition and 

the representation election? In other words, what problem are we 

trying to fix? 

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Mr. MESSENGER. The average time based upon the information 

in the proposed rule is 31 days, and the median time is 38. 

Mr. ROE. So the average is—okay. How many cases are delayed, 

and how long? Because that is what we always hear about the exception. And what percent of these elections do the unions actually 

win? 

Mr. MESSENGER. I believe that in 2010 the percentage was 94 

percent of elections actually occurred within the board’s target 

timeframe of 56 days. So only about 5 or 6 percent of elections go 

beyond two months. And, in fact, in most elections, I forget the 

most recent statistics, but unions generally win the elections that 

actually do go to certification a little bit over half the time. 

Mr. ROE. That is the majority of the time. 

And what is usually the source of the delays? 

Mr. MESSENGER. Usually there are two. The first is union blocking charges. That happens a lot in decertification campaigns, where 

employees are trying to get out of union representation. And a common problem is the union will start filing unfair labor practice 

charges which the NLRB will investigate at length before it will 

ever even begin to start the election process. 

And then the second is when the board itself wants to take it 

upon itself to set law in a particular instance. So if the board takes 

an issue presented in an election case, sometimes it could take the 

board a very long time to rule, and so it is the board’s delay, not 

necessarily the procedure. 

Mr. ROE. What recourse does an employer have against a union’s 

false statements or false information? Or is there any recourse? 

Mr. MESSENGER. I will leave that to the employers’ attorney, if 

that is okay. 

Ms. DAVIS. Very little. There is wide latitude in union representation campaigns for union rhetoric and what they can and can’t 

say, the reason being that the labor board has specifically said that 

employees are sophisticated enough to know that unions are going 

to make promises to get elected, and that they realize that even 

though a union will say things, they can’t deliver on anything that 

they promise because they have to get the employer’s agreement. 

On the other hand, the rules for the employer are very strict. 

And I might say, after my 35 years of experience, they are rather 

counterintuitive to businesspeople. And that is why they seek out 

labor counsel, because the things that you would probably naturally think that you could do as a businessowner in the face of a 

union election petition, pretty much everything you would think 

you could do is illegal. But most employers don’t necessarily know 

that. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. Holt? 

Mr. HOLT. Thank you, Mr. Chairman. 

First of all, I would ask unanimous consent to introduce in the 

record a letter from five Members of the New Jersey congressional 

delegation and both U.S. Senators to Chairman Pearce on this matter. 

Chairman KLINE. Without objection. 

[The information follows:] 

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169 

CEWDOCROOM with DISTILLER


Insert offset folio 41 here 86826.041
170 

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Insert offset folio 42 here 86826.042
171 

Mr. HOLT. Thank you. 

You know, as we discuss the details of the election procedures 

and how the NLRB rule would seek to have a more level playing 

field so that employers wouldn’t have an advantage in the vote, I 

think it is important to ask really what this is all about, just not 

get lost in the weeds. 

Mr. Browne, why do you oppose organizing and collective bargaining by the employees? Why do you care so strongly? 

Mr. BROWNE. I don’t think that is where we are at. I think that 

we are trying to say that employees should be educated, and employers and employees should both have a chance— 

Mr. HOLT. Have you invited a union in to organize? 

Mr. BROWNE. No, sir. 

Mr. HOLT. No. So the whole point here is you are trying to make 

it hard for them to organize. Why? Why? Let me ask you that. 

Mr. BROWNE. I think we are trying to make sure people are educated. And if people are educated, they can make an informed decision on either side of the situation. Without education, they can’t 

really do that. 

Mr. HOLT. Come on, let’s not play games. You don’t want it 

unionized. Why? Tell me. 

Mr. BROWNE. I would have to get a written response back to you, 

sir. 

Mr. HOLT. Okay. I wish you would, please. 

Mr. HOLT. Ms. Sencer, in that last line of questioning with Dr. 

Roe, I think you were itching to make a comment. If you would, 

briefly, I would— 

Ms. SENCER. I was. Thank you. 

The problem isn’t in the majority of the elections where we have 

a stipulated election agreement. Most employers play by those 

rules, and everything works out fine. 

In the cases that don’t stipulate, though, the average is 160- 

some-odd days between the time the petition is filed and the time 

that the election is held. And that is simply too long for the employees. And, as a result, during that time period is when we see 

the increase in employer-objectionable conduct that results in unfair labor practice charges and others. 

When we talk about these blocking charges, however, the blocking charges are not the problem. The most recent statistics showed 

that there was only 31 blocking charges filed in the entirety of 

2012. This is not a significant number. 

A blocking charge is always a two-way street. A blocking charge 

only exists because the employer engaged in some activity that the 

union found to be objectionable or questionable. 

And then the practice, once those blocking charges are filed, is 

that most regions, or at least the regions that I am familiar with, 

do a prompt investigation and require the union to give an offer of 

proof. If this is really close to the election, within 48 hours, most 

regions continue to hold the election and simply impound the ballots until such time as the blocking charge is actually fully investigated. 

More often than not, they require full investigation of the blocking charge prior to the election, but they complete that investigation prior to the election itself and it does not postpone the election. 

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Mr. HOLT. Thank you. That is useful information. 

Let’s see, Mr. Browne, you are representing the Society for 

Human Resource Management, is that correct, today? 

Mr. BROWNE. Yes, sir. 

Mr. HOLT. And, Mr. Messenger, you are representing the National Right to Work Legal Defense Foundation; is that correct? 

Mr. MESSENGER. Yes, sir. 

Mr. HOLT. Yeah. 

Mr. Browne, who invited you here today? Specifically, who on the 

committee notified you of the hearing? 

Mr. BROWNE. I was notified by the Society for Human Resource 

Management to come. 

Mr. HOLT. Uh-huh. And how did you learn of the hearing? 

Mr. BROWNE. I was informed through their government advocacy 

group. 

Mr. HOLT. Uh-huh. By whom? 

Mr. BROWNE. By Mike Aitken. 

Mr. HOLT. Okay. And this was—how did Mr. Aitken notify you? 

Mr. BROWNE. I am sorry, sir? 

Mr. HOLT. How did Mr. Aitken notify you? 

Mr. BROWNE. He notified me by email. 

Mr. HOLT. Yeah, by email. Yeah, that is the way it is done these 

days. That is the way we communicate, by email. Sometimes by 

phone. You probably had a phone exchange with the committee 

also. That is the way it is done. 

So there is nothing out of the ordinary that this rule would say 

that in order to have a level playing field so that people could organize to protect their rights—working conditions, wages, safety in 

the workplace, all of those things that we bargain collectively 

about—so that they could have a level playing field to do those 

things, the unions should have the means of communication that 

is normally used for communication. 

And I presume, Mr. Messenger, you were also notified of this 

hearing by either phone or email? 

Mr. MESSENGER. Yes, email. 

Mr. HOLT. Yes. Yes. Thank you. 

No further questions. 

Chairman KLINE. The gentleman’s time has expired. 

Ms. Brooks, you are recognized. 

Mrs. BROOKS. Thank you, Mr. Chairman. 

And thank you all for come here today. 

I am going to direct my questions really to the attorneys. As an 

attorney, I have great concerns about the seven day window. And 

having not practiced in your space of labor law, I certainly know 

that any labor lawyers I have ever called for anything are often on 

the road, you are often in negotiations, you are often in court. And 

so to have that short of a window to assist a new client I think 

would be extremely difficult. 

And so I am going to start with you, Ms. Davis. And I am curious, following the petition of an election, how much contact do you 

have with your clients—or how much contact do you and your clients have with the regional director? And can you talk with us 

about the importance of that process and the types of issues that 

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you address and/or try to resolve in working with the regional director? 

Ms. DAVIS. I have a case pending right now. A petition was just 

filed last week, and it is in the Cleveland region of the NLRB. And 

while I am not dealing with the regional director directly, I am 

dealing with the field attorney who is handling the case. And I 

have had no fewer than five phone calls over the past three days 

trying to pinpoint—he is trying to pinpoint with me what, if any, 

issues we might be raising in the hearing. And I am still exploring 

with my client whether or not there are any issues, what the appropriate bargaining unit is. This case happens to be a little bit 

complicated because there is another case that affects it. And so we 

have quite a bit of at least conversation by phone with the regional 

office before the actual preelection hearing. 

And you are absolutely right about the timeframe now. It is very 

challenging, as I am sure Ms. Sencer can tell you as well. We don’t 

sit around waiting for the petitions to be filed. We don’t control the 

timing of the filing of the petitions. And oftentimes our schedules 

are booked up in the next week, as you might imagine, with other 

appointments and commitments that we have to make. 

Mrs. BROOKS. Because you typically don’t work with one client 

at a time. 

Ms. DAVIS. Oh, no. 

Mrs. BROOKS. Is that correct? 

Ms. DAVIS. We do not. Many, many different clients at the same 

time. 

Mrs. BROOKS. And how often do these negotiations that you are 

having with the regional director lead to compromise or resolve 

issues? 

Ms. DAVIS. Most of the time. In my experience, again, of 35 

years, I would say at least 85 percent of all representation cases 

I have handled—and it has been over 300, at least—have resulted 

in a stipulated election agreement. 

Mrs. BROOKS. And how will this new seven day timetable affect 

those stipulated agreements? 

Ms. DAVIS. I think it is going to have a very detrimental effect. 

There is going to be a reluctance to enter into a stipulated election 

agreement, first of all, under the proposed rules, something that we 

haven’t touched on yet. 

But under the new rules, stipulated election agreements, the 

final decisions on what happens do not automatically go to the 

labor board. They have discretion whether or not to take those 

issues. Under the current practice, stipulated election agreements, 

the labor board absolutely has the final word and determination; 

it is not discretionary. That alone is going to discourage stipulated 

election agreements. 

And the requirements from statement of position and the waiver 

of those issues I think is going to make—I know I am going to be 

very reluctant to advise my clients to enter into stipulated election 

agreements in that short of a timeframe when we are not sure 

what all the issues are, and that, you know, we are going to waive 

them if we don’t raise them. 

Mrs. BROOKS. Based on the 300 cases that you have worked on 

under the current rules, what is the average length of time that 

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you would say that you need, as a good attorney, to flesh out the 

issues, develop the case, and develop your position statements? 

Ms. DAVIS. I would say at least 10 days to two weeks. That is 

a minimum. 

Mrs. BROOKS. How many associates do you have working with 

you? 

Ms. DAVIS. Well, if you count all the associates in all of our offices, it would be many. But in my office in New York, I have about 

four or five associates who work with me closely. 

Mrs. BROOKS. And you need to supervise those individuals, as 

well. 

Ms. DAVIS. Absolutely. 

Mrs. BROOKS. I have nothing further at this time. 

Chairman KLINE. I thank the gentlelady. 

And, Ms. Davis, you are recognized. 

Mrs. DAVIS of California. Thank you, Mr. Chairman. 

Going back to some of the issues that have already been raised, 

and one of them was the concern that employers can certainly 

speak out against unionization at any time. I think it was raised 

that, in fact—you know, the time limit. 

Is that correct, I mean, that employers can do that, can speak 

out against unionization at any time? 

Ms. SENCER. Many employers actually start inoculation to unionization efforts at the time of hiring, when it is considered that employees are most vulnerable to those types of comments. They run 

constant campaigns, ‘‘Come to management first. We don’t want 

any third party involved in our relationship.’’ And those happen regardless of whether or not there is any union organizing campaign 

in place. 

Mrs. DAVIS of California. Thank you. 

Mr. Messenger, could you clarify for me whether or not it is true 

or false that a worker can be fired for refusing to attend the meeting that is held by the employer that offers the employer’s perspective on unionization? Can an employer be fired for that? 

Mr. MESSENGER. An employee? 

Mrs. DAVIS of California. Yes, employee. I am sorry. Yes. 

Mr. MESSENGER. Yes, I believe employers can require their employees attend meetings on work time to discuss work issues, 

which can include unionization. 

Mrs. DAVIS of California. And if they aren’t able to be there, if 

they don’t show up for whatever reason, they could be fired? 

Mr. MESSENGER. They could. I mean, it is part of a shift meeting. 

So if the employer says, there is a shift meeting at 2 o’clock, everyone is required to attend, employees can’t say, I don’t feel like it. 

Mrs. DAVIS of California. Yeah. That sounds like quite a bit of 

access. 

Ms. Sencer, what do you see in terms of that requirement? 

Ms. SENCER. Well, we call that the captive-audience meeting. 

And we would like to eliminate them, but that is not what this rule 

does. This rule doesn’t eliminate the captive-audience meeting. It 

allows the employer continued access to the employees, as they are 

under current status quo, throughout the entirety of the election 

period. 

Mrs. DAVIS of California. Yeah. And that doesn’t change? 

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Ms. SENCER. That doesn’t change. 

Mrs. DAVIS of California. Uh-huh. Okay. Thank you. 

Could you also, Ms. Sencer, talk about the seven day window? 

And where did that come from in the proposed rule? 

Ms. SENCER. There is actually a board decision that was issued 

by a Republican-majority board that says it should be, I believe, 

five days or something of that nature. 

In my practice, the regions that I deal with, most of the regions 

on the west coast, but specifically I will talk to 20, 32, 21, and 31, 

which are the four regions that cover California, we are regularly 

scheduled for a hearing within seven days of the petition being 

filed as part of the status quo. 

The seven day rule inside the proposed rules is really just a bestpractice standardization process, where that is the process that we 

have been using. And, in fact, Jones Day attorneys on the other 

side regularly appear within those seven days to have those hearings when a hearing is necessary. 

But like Ms. Davis, my experience is that it does lead to stipulated election agreements because the parties have the pressure of 

a hearing sitting on them. The regions use that pressure of the 

seven days to get to the hearing to help the parties reach an agreement on a stipulated election agreement. 

Mrs. DAVIS of California. Uh-huh. So any idea why you did have 

members that you mentioned that were pushing for the five days? 

They obviously thought that was sufficient. 

Ms. SENCER. They obviously thought that was sufficient. Seven 

days, I guess, is seen as a little more humane. 

Mrs. DAVIS of California. Yeah. 

I think what we are trying to talk about here is leveling the playing field. And so sometimes some of the changes that are being proposed by this rule actually can serve employers equally. Can you 

describe a few of those? 

Ms. SENCER. The union employee will be in the same position as 

the employer when it comes to this. And so, in a decertification petition or a petition to remove a due status, they would be under the 

same rules of requiring to take positions within seven days and 

having a hearing or a stipulated agreement within seven days. 

And, in fact, the pressure placed on a union in that situation is 

stronger than the pressure placed on the employer, because when 

we are in a decertification situation, there isn’t really a dispute 

about the scope of the bargaining unit. You are going to use the 

bargaining unit as it is described in the collective bargaining agreement. And there isn’t a whole lot of room, there isn’t a reason to 

have a hearing, most of the time, other than to discuss the time 

and date of the election, which if the union refused to agree, under 

the proposed rules the region would just set without a hearing. And 

that would balance that part out. 

Mrs. DAVIS of California. Yeah. Okay. Well, thank you very 

much. I think my time is about to expire. 

I yield back. 

Chairman KLINE. I thank the gentlelady. 

Mr. Guthrie, you are recognized. 

Mr. GUTHRIE. Thank you, Mr. Chairman. 

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I appreciate the witnesses for being here. I appreciate your testimony today. 

I have a question, I think, to Mr. Browne. You were asked about 

how you were communicated with about this meeting, and you— 

I think we established it was via email— 

Mr. BROWNE. Yes, sir. 

Mr. GUTHRIE.—which a lot of us either email or text now more 

than we do other things. So my question is, the Society of Human 

Resources Management contacted you? 

Mr. BROWNE. Yeah. 

Mr. GUTHRIE. How did they get your email address? Were you 

compelled to provide that to them? 

Mr. BROWNE. No, sir. I have allowed them to have my email address. I am part of their activity with advocacy, so that we already 

had that agreement, that I knew that they could email me. 

Mr. GUTHRIE. So your personal information was given to them by 

choice? 

Mr. BROWNE. Yes, sir. 

Mr. GUTHRIE. In the rule that is on the Excelsior list, it says, 

‘‘Under the proposed regulation, employers would be required to 

provide an expanded Excelsior list, including each employee’s 

name, address, phone number, email address, work location, shift 

information, and classification to the union within two days of the 

petition for the election.’’ 

In your experience, I mean, how do small employers keep those 

records? And do you have any concerns about providing your employees’ personal information to any third party? I am not talking 

just union, but any third party. 

Mr. BROWNE. We do get information when people come on board 

as new hires. And am I concerned that it gets shared outside of us 

to any party? Yes, I am. We have a good relationship with our employees, and they expect us to take care of them, and that includes 

their personal information. So for it to be given out to somebody 

without consent would be a concern. 

Mr. GUTHRIE. Do you think your employees would object to their 

information being shared without their permission? 

Mr. BROWNE. Yes, I think so. 

Mr. GUTHRIE. I mean, knowing your employees, you would do 

that, as well? 

Mr. BROWNE. Yes, sir. 

Mr. GUTHRIE. Well, thank you. 

That is my question, Mr. Chairman, and I yield back. 

Chairman KLINE. I thank the gentleman. 

Mr. Grijalva, you are recognized. 

Mr. GRIJALVA. Thank you, Mr. Chairman. 

Ms. Sencer, let me go to the point that Ms. Davis was making 

about the seven days. The California Agricultural Labor Relations 

Act stipulates that elections are conducted in seven days of the filing of an election petition. Share with us your experience in that 

process, because we do have an example. 

Ms. SENCER. Sure. In California, the agricultural workers are allowed to organize under the California Agricultural Labor Relations Act. It is a group of workers that is not protected by the National Labor Relations Act. 

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Under the procedures used at the Ag Board, the petition gets 

filed and the election is held within seven days. During those seven 

days, first, the employer has an obligation to provide all of the 

names and contact information of the bargaining unit employees, 

including actual residences. One of the things that we see on the 

NLRB Excelsior list currently is P.O. boxes, but, actually, under 

the Ag Act, they are required to give an actual street address 

where a person resides. And during that seven days, the union has 

access to the employer’s facility. And the union goes on to the employer’s property and is part of a campaign, and the employer is 

running its anti-campaign at the same time, and it seems to work 

out just fine. 

Most employers can run an anti-campaign, if they so choose, 

within seven days because there is a whole field of labor management consultants and management lawyers whose job it is to run 

anti-campaigns in short periods of time. And under the Ag Act, we 

have not seen much problem with an actual election being held 

within seven days. 

Mr. GRIJALVA. Thank you. 

Let me follow up with another question, if I may. As part of the 

discussion by both the witnesses and members of the committee, I 

think it was commented that you have to paint a good picture, the 

union has to paint a good picture, so that their information is 

about a good picture, much like politicians do when they are contacting voters and tell them only the good stuff about themselves. 

And then another comment was made, but it is left to the people 

that are voting because they should be sophisticated enough to 

know the difference and to make the right decision. 

I ask you that because, in the balance question that was brought 

up, this proposed change would skew the balance, according to the 

three other witnesses, in a very unfair way toward employers. My 

question is, as we take a snapshot of as it is now, what are those 

prerogatives that employers have that employees don’t have with 

regards to being able to unionize or to ask for an election at a 

point? 

Ms. SENCER. In the status quo, the employer has unfettered access and can make its anti-union campaign as an ongoing process 

regardless of whether or not there is actually a union-organizing 

campaign in place. This rule doesn’t change any of that; that still 

allows the employer to do so. 

The union does generally paint itself in its most positive view. 

Most people do when going out to meet someone. They introduce 

themselves— 

Mr. GRIJALVA. Nobody on this dais does that, so that is a shock 

to us. 

Ms. SENCER. But the same is true of employers. When I go to 

interview for a job, the employer doesn’t tell me about the lawsuits 

that have been filed against it; it doesn’t tell me about the disputes 

it has had in employee relations. It puts out the best information 

that they have. They say, it is a great place to work and everyone 

is happy here. It is up to me, as the individual interviewing for 

that job, to see what I can find if I want to dig deeper to determine 

if there is anything negative about that employer and whether or 

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not that makes a difference in my decision to work for the employer. 

And the same is somewhat true in the union situation, although, 

if you go back to Mr. Holt’s question as to why are you against 

unionization, if the employer stays neutral because it has no view 

on it, that is just fine also. And the employees are sophisticated 

enough to make a decision— 

Mr. GRIJALVA. And in the case of Chattanooga, the employer was 

staying neutral, Volkswagen. 

Ms. SENCER. Yes. 

Mr. GRIJALVA. And the anti-union propaganda and campaign was 

from the outside. The company itself had not hired the teams of 

people to come in there and try to bust an election. They came from 

the outside. It came from a Senator, it came from a State Senator. 

And that is where the complaint will be coming from. Am I— 

Ms. SENCER. Yes, that is where the objection comes from. There 

were members inside the plant who were against having a union, 

and they were speaking freely—individuals inside the plant, who 

are part of the proposed bargaining unit, who are against unionization, and they were speaking freely. And that conduct is not objectionable in the slightest. This was the outside conduct that was 

really interfering with the election. 

Mr. GRIJALVA. As a practitioner in labor law and in labor relations, there is a whole industry that promotes itself as, ‘‘I can stop 

this from happening to your place.’’ Can you tell us a little bit 

about that industry, how big it is and how rich it is? 

Ms. SENCER. It is huge. 

The employers have the right to hire them, obviously. In my 

field, in California, as soon as my client tells me who the antiunion consultant is, the union-buster or persuader who is going to 

come in is, we can tell you just about down to the word the message that they are going to put out. It is an anti-union campaign 

in a box, so to speak. 

And they have lots of people who work for them. They come 

straight on site. They start having one-on-one meetings with employees inside the facility, with a supervisor from the site, along 

with the consultant who is being brought in from the outside. They 

come right in, they sit down, they have one-on-one meetings, they 

have three-person meetings, they have captive-audience meetings. 

And this all happens very quickly. Generally, before we have 

even signed the stipulated election agreement from the date that 

a petition is filed, we will see those people on site. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. Rokita. 

Mr. ROKITA. I thank the chairman for the time. 

I thank the witnesses. My apologies for not getting to hear your 

testimony in person. I was at a, frankly, at a Budget Committee 

meeting. ’Tis the season in Washington. But I did try to read some 

of your testimony and had some questions regarding that. 

Before I get to that, though, I was wondering if Mr. Messenger 

or Mr. Browne would want to respond at all to the response made 

to the last question. 

Mr. Messenger, anything to add or detract from what was said? 

Is anything illegal about what—I heard the term ‘‘rich’’ being used. 

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I don’t know what that implied, or if the ‘‘union-busters’’ were acting illegally or something? Is that what you understood? 

Mr. MESSENGER. No, in fact, you know, the persuader industry 

exists because the NLRB rules are so tight on employers of a landmine field of all the things they can and can’t say, that they are 

forced to hire professionals who know exactly what to say, as Ms. 

Sencer said, down to the letter, because anything else could be construed to be an unfair labor practice or objectionable. 

So it is simply a way to get out opposing information within the 

strict letter of the law. 

Mr. ROKITA. Absolutely. Thank you. 

Mr. Browne, anything there? No? Okay. Just want to be fair. 

Mrs. Davis, in Ms. Sencer’s testimony, if I read it right, she 

states, ‘‘In cases where there is no stipulation and a hearing is 

held, the election is not held until a minimum of 65 days and often 

longer after the petition is filed.’’ However, I also saw that most recent NLRB data indicates that 94 percent of election are held within 56 days of the petition. 

So, in your experience, is Ms. Sencer’s estimate accurate? And 

why are there delays? 

Ms. DAVIS. Well, in my experience, even with a hearing, usually 

an election is held no later than eight weeks after the petition has 

been filed. There are going to be outliers that affect the statistics, 

you know, when you get to the median and the average. But, normally, and I advise clients of this, that without a hearing, with a 

stipulated election agreement, the election is going to be in six 

weeks; with a hearing, it is probably going to be in eight weeks. 

So there is maybe a two week differential. 

And the reason why there is sometimes a two week differential 

for a hearing to be held is because very important bargaining unit 

issues and individual eligibility issues are being determined in that 

hearing process prior to the election so that the employer, the employees, and the union know who is actually eligible to vote and 

who can vote. 

As I said earlier in my testimony, that determination is extremely important when it comes to who is a supervisor and who 

isn’t. Because supervisory conduct binds the employer. And when 

it is not known whether, in fact, an individual is a supervisor or 

not, that person can break the rules, bind the employer, and lead 

to a rerun election. 

So those issues are very important and should be determined 

prior to the election being held. The rules will not allow that unless 

the issue affects more than 20 percent of the bargaining unit. 

Mr. ROKITA. How? Deficiency, unfairness in these rules? 

Ms. DAVIS. I don’t think that it is going to lead to any more efficiencies. I think what may— 

Mr. ROKITA. I meant to say deficiencies, sorry, and unfairness in 

these rules as currently written. Is that what you are saying? 

Ms. DAVIS. Yes. Yes. 

And under the proposed rules, it is my position that it may lead 

to quicker elections, maybe, but it is not going to lead to quicker 

collective bargaining or collective bargaining agreements. Because 

issues are now going to be deferred until after the election. And 

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until those issues are resolved, the union is not going to be certified 

and there is going to be no obligation to bargain. 

So a lot of the concerns that we heard about some years back 

when there were discussions of the Employee Free Choice Act about 

how long it takes to get a first contract negotiated, those issues are 

going to be exacerbated by these rules, in my opinion, because the 

collective bargaining is going to be delayed because there is not 

going to be—these issues aren’t going to be decided and there is not 

going to be a certification. 

That also puts a tremendous burden on employers, as Ms. Sencer 

testified earlier about the laboratory conditions or the ‘‘bubble,’’ I 

believe she called it. It would require the employer to maintain 

those conditions all during that time. 

Mr. ROKITA. Thank you. 

Switching back to Mr. Messenger, again, referring to Mrs. 

Sencer’s testimony, she states, ‘‘In virtually all the cases where clients have filed election petitions, the employers had been aware of 

the organizing efforts prior to the filing.’’ 

In your experience, then, do the employers always know an organizing effort is under way prior to the petition? And is it important 

for employers to know? 

Mr. MESSENGER. Employees often don’t know or, at the very 

least, they don’t know the imminence. 

So, for example, especially in a large facility, the union only 

needs 30 percent of the unit to sign a petition in order to get an 

election. If you are in a hospital on the second shift, you might not 

know what is going on the first shift. 

And, even more importantly, you don’t know the actual timeframe. So you might hear through the grapevine that someone was 

visited by a union organizer. What does that mean? Is there going 

to be an election tomorrow? Is there going to be an election next 

year? It is uncertain. So there is really no notice beforehand of exactly what is coming. 

Chairman KLINE. The gentleman’s time has expired. 

Mr. Bishop? 

Mr. BISHOP. Thank you, Mr. Chairman. 

I thank the panel for being here. 

I kind of want to pick up on where Representative Holt was 

going, which is the big picture of why—why there seems to be such 

great determination to thwart efforts to organize. And I want to 

put three facts on the table. 

The first is we have been measuring these two statistics I am 

about to cite since World War II. Corporate profits as a percentage 

of the economy are higher than they have ever been. At the same 

time, total payroll compensation—that is to say, the total amount 

of money people make—is lower than it has ever been. That is fact 

one. 

Fact two: Seventy percent of our economy is rooted in consumer 

spending. And most economists tell us that the reason that our 

economy is struggling is that there is slack in the economy, there 

is insufficient demand in the economy, people aren’t spending 

enough money. 

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And, thirdly, the share of unionization in the private sector workforce is at 6.7 percent—6.7 percent—the lowest it has been in 100 

years. 

And so my question is—my question is, do any of you—and I am 

going to start with you, Mr. Messenger—do you think these statistics are completely unrelated, totally coincidental that the proportion of our workforce that is unionized is lower than it has been 

in 100 years but also total payroll compensation as a share of the 

economy is lower than it has ever been? Is that totally a coincidence? Or could there possibly be some causal relationship there? 

I am going to ask you, Mr. Messenger, and, Mr. Browne, I am 

going to ask you. But I also have another question, so I am going 

to ask you to answer quickly. 

Mr. MESSENGER. Thank you. 

I am not an economist, so I can’t speak directly as to cause and 

effect as to those issues. However, it does sort of appear to me, as 

an economic layman, that increasing unionization is not a way to 

increase the competitiveness of American businesses, especially 

those that have to compete with those overseas. 

Mr. BISHOP. But hear me. Total corporate profits as a percentage 

of the economy are higher than they have ever been. So that 

sounds to me like our corporations are doing pretty well in terms 

of competition, no? 

Mr. MESSENGER. Again, I can’t speak to, you know, the economics of exactly how that works. But what I can tell you is that, to 

the extent the argument is that the government should therefore 

lean in favor of unionization and impose that upon employees— 

Mr. BISHOP. Nope. 

Mr. MESSENGER.—because supposedly that is in the best interest— 

Mr. BISHOP. Nope. But that is not what the government is saying. What the government is saying is, let’s have an election process that is free, fair, open, and, in the words of Mr. Browne, 

achieves the delicate balance that presumably still exists. 

Mr. MESSENGER. I don’t see how the conclusion flows from the 

premise. The premise is there is not enough unionization, therefore— 

Mr. BISHOP. All right, I am asking you. Union workers make 

more than non-union workers in the main, correct? 

Mr. MESSENGER. I don’t know. I can supplement testimony to 

that. But I can tell you that most of the States that are economically growing are right-to-work States with low levels of unionization. 

Mr. BISHOP. Mr. Browne? 

Mr. BROWNE. Similarly to Mr. Messenger, I don’t think I can 

really comment as to how the economics of things works, whether 

it would be directly correlated. So it would be hard for me to comment. 

Mr. BISHOP. It seems to me, if we have an economy that is 70 

percent rooted in consumer spending and our economy is struggling 

because there is slack demand, it seems to me that what we want 

to do is create an environment in which people who live paycheck 

to paycheck have slightly larger paychecks so that they can spend 

more. And it seems to me that the efforts that at least Mr. MesCEWDOCROOM with DISTILLER

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senger’s organization is actively engaged in going in the exact opposite direction. 

Let me move to one more thing. You used the term ‘‘delicate balance’’ that currently exists. Under current law, union organizers 

cannot even go onto the property of a workplace unless they are invited. Yet Mr. Messenger just testified that an employee can be 

fired for failing to attend a captive-audience meeting in which the 

detriments of unionization are presented. 

Does that fall under anyone’s reasonable definition of a delicate 

balance? 

Mr. Messenger? 

Mr. MESSENGER. I would say it does, because the important thing 

here, it is the employer’s property and it is their paid work time. 

So it is their property, it is what they are paying the individuals 

to do. So, as any other private citizen, they should be able to do 

what— 

Mr. BISHOP. All the cards rest with the employer. You are telling 

us how difficult it is for the employer, yet you are also saying that 

the employer can conduct captive-audience meetings and do so with 

impunity, and yet the organizers have no access to the workplace 

at all, and that is fine, that falls under the heading of a delicate 

balance? 

Chairman KLINE. The gentleman’s time has expired. 

Dr. Bucshon? 

Mr. BISHOP. Thanks, Mr. Chairman. 

Mr. BUCSHON. Thank you, Mr. Chairman. 

Ms. Sencer must think this is funny, but I certainly don’t. This 

is a serious hearing. 

Ms. Sencer, do you believe in the First Amendment? 

Ms. SENCER. Absolutely. 

Mr. BUCSHON. Does that apply to everyone? 

Ms. SENCER. Absolutely. 

Mr. BUCSHON. As you are aware, the President of the United 

States came out and—publicly came out in favor of unionization of 

the plant in Tennessee. But since that doesn’t disagree with what 

you agree with, I guess other members of the government can’t 

voice their First Amendment rights. 

Ms. Davis, a question to you. 

Ms. SENCER. Do I get to answer that? 

Chairman KLINE. It is his time. 

Mr. BUCSHON. It is my time. 

Chairman KLINE. Dr. Bucshon’s time. 

Mr. BUCSHON. Ms. Davis, Ms. Sencer said that employers can 

campaign constantly. Is there a limitation on captive-audience 

speeches? 

Ms. DAVIS. Yes. Captive-audience speeches cannot be held 48 

hours before the election. 

Mr. BUCSHON. And does reducing the time between petition and 

election affect this at all? 

Ms. DAVIS. Affect the number of— 

Mr. BUCSHON. Yeah, affect the time. 

Ms. DAVIS. Absolutely, because it is still 48 hours, and it is a 

short time period. So it is going to definitely shorten the amount 

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of time the employer has to have captive-audience meetings if the 

employer so chooses to have them. 

Mr. BUCSHON. Thank you. 

Mr. Messenger, in Ms. Sencer’s testimony, she states that providing employee phone numbers and email addresses is no more intrusive than providing a home address. Certainly, providing an employee’s home address is intrusive. 

In your experience, do unions visit employees’ homes and call 

their phones during an organizing drive? 

Mr. MESSENGER. Yes, if they do have the telephone numbers, 

which usually they would only get under an organizing agreement 

because they can’t get it under current board procedures. But, yes, 

they absolutely visit employees’ homes, sometimes repeatedly, to either convince them to not oppose the union or to support the union, 

yes. 

Mr. BUCSHON. By the way, I just wanted to say that my dad is 

a retired United Mine Worker, and I have a great deal of respect 

for the workers’ rights to organize and collectively bargain as long 

as there is a fair playing field. I wanted to say that. I forgot to say 

that at the beginning. 

How have employees described the interactions, Mr. Messenger? 

You have these interactions at their homes. Does anybody talk 

about that? 

Mr. MESSENGER. Yes. In my experience, I think the main thing 

that comes away, from my experience, is it is persistent. A lot of 

times they say, ‘‘I’m not interested, go away,’’ and the union comes 

back anyways. 

As far as the actual interaction, it varies. Sometimes it is the soft 

sell. It is the college student that says, just sign this just to show 

that—so the union knows that I visited here. It is actually a union 

authorization card. Other times it is a more intimidating visit of 

several large men, you know, saying, we want you to support the 

union. It just varies upon the circumstance and what the union believes will be most effective. 

Mr. BUCSHON. Okay. Thank you. 

Chairman, I yield back. 

Chairman KLINE. I thank the gentleman. 

Mr. Loebsack? 

Mr. LOEBSACK. Thank you, Mr. Chair. 

This really has been a pretty good hearing. It has been very informative, and I appreciate all the witnesses who have been here. 

I have a few questions, but I first want to go back to what Mr. 

Bishop said and add to his three data points. I don’t have all the 

specifics, but I do know that our workforce has become ever more 

productive. So add that to the other arguments that were made by 

Mr. Bishop. We have a more productive workforce than we have 

had really ever, I think. And over the course of the last few decades, we have seen that increase that much more. 

That leads me to believe, certainly, that our workers deserve to 

have a better deal. There is no question about it. If they are going 

to do more and they are going to produce more, then I think they 

do deserve a better deal. And I think that is where unions come 

in. I think unions can provide a better deal for those workers. 

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And I like the idea of a delicate balance, because that is something that is really important. Of course we have to take into account the employer’s concerns. Of course we have to take into account the employee’s concerns. There is no question about that. 

I have some concerns about this whole timeframe issue that we 

have been talking about here—six weeks, eight weeks, whatever, 

for an election. I don’t know if folks here are aware of the fact that 

the 2010 election in Great Britain was one month long—one month 

long—a national election in a first-world country, in a European 

country. Think about that. And here we are arguing about whether 

this ought to be six weeks or eight weeks or whatever the case may 

be. 

I am a little bit—I guess it is sort of the Iowan in me, I kind 

of wonder, well, how long should this be for all the arguments to 

get out, for both sides to make their arguments and make sure 

they have access to the folks they are trying to influence? I don’t 

really know how long that should be. 

But I want to ask you, Mr. Messenger, in an ideal world, how 

long should that election take? How long should it be? 

Mr. MESSENGER. I don’t know if I have a number, you know, to 

pull out. But I do know in the 1959 amendments 30 days was suggested, and I believe that was ultimately not accepted because it 

was considered to be too short. 

Mr. LOEBSACK. Right. 

Mr. MESSENGER. But that was a number put out there in 1959 

in those amendments. 

Mr. LOEBSACK. But it has not been 30 days. Right, Ms. Sencer? 

What are the numbers again? 

Ms. SENCER. Well, I mean, I dispute the idea that with a hearing 

you actually get there in eight weeks. I just want to kind of clarify 

that point first. 

When a petition is filed and a hearing is held, when a notice of 

the hearing goes out for a seven day hearing and the employee requests and is granted a week extension, you are already at 14 days. 

Mr. LOEBSACK. All right. 

Ms. SENCER. You then have the hearing itself. The employer and 

the union, if the union so chooses to do it, have an opportunity to 

file a post-hearing brief. That is another week. You are already at 

21 days. 

Then the regional director has to issue a decision and direction 

of election. That usually takes about two to three weeks. You can 

see how this is growing. 

Mr. LOEBSACK. Uh-huh. 

Ms. SENCER. Now we are up to 42 days. 

Mr. LOEBSACK. Right. 

Ms. SENCER. And when they do issue that decision and direction 

of election, it allows for 25 days for review to be held by the board 

prior to the election being scheduled. So the election will be scheduled, but it will be scheduled for the 26th or the 30th day out. 

So, at that point, you are over two months. You are well over two 

months even in your best-case scenario, where the regional director 

issues the decision promptly and the employer does not take the 

appeal and the hearing only takes one day and the employer does 

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not request and is granted additional time above the seven days to 

file their post-hearing brief. It is too long. 

It would be great if we could get to 30 days. Personally, I would 

like to see it be less. But guaranteeing that elections were held in 

30 days, as compared to 56, which is the current average that they 

talk about, would be a significant improvement for the workers 

who, during that period of time while the petition is pending before 

the election is held, are subject to, as the statistics show, increasing amounts of unfair labor practices. 

Mr. LOEBSACK. All right. 

Mr. Messenger, I have a basic question about the process we are 

talking about here. Do you believe in the legitimacy of the process? 

Mr. MESSENGER. Of the current board procedures? 

Mr. LOEBSACK. Right, of the National Labor Relations Act and 

the NLRB and just having elections for unions in the first place? 

Do you believe in the legitimacy of it? 

Mr. MESSENGER. No. I believe that each individual should be free 

to choose whether or not they wish to support a union, that exclusive union representation shouldn’t be imposed on any individual. 

Even if 90 percent of their coworkers wish to support a union, that 

is no justification for forcing the union on the dissenting 10 percent. 

Mr. LOEBSACK. I appreciate that. Thank you for your forthrightness. 

Thank you all. 

And I yield back. Thank you. 

Chairman KLINE. I thank the gentleman. 

Ms. Bonamici, recognized. 

Ms. BONAMICI. Thank you, Mr. Chairman. 

And to our witnesses, thank you. This has been an interesting 

hearing. And this is an important issue for the committee to consider because it is really, at a basic level, about good jobs for our 

constituents, growing the economy, and, as others have mentioned, 

really looking at the decline of the middle class. 

And the National Labor Relations Act is intended to protect 

workers’ rights to organize and to collectively bargain and to make 

sure that employers are treating employees fairly through that 

process. And I want to reflect a little bit about the history. 

I actually grew up, even though I represent a great district in the 

State of Oregon, which is now my home State for many years, I 

grew up just outside of Detroit. My grandfather worked at Ford 

Motor Company both before and after the UAW. 

And when we really look at what happened, when, you know, 

people were beaten and punched and kicked, I think we have come 

a long way since those days. But when we reflect on that history 

and the need to really protect the process for workers, it is important to remember how far we have come but also how important 

it is. 

As we now in Congress look for ways to get the economy back 

on track and our country back to work, we should be asking how 

we can support our workers’ rights to choose a union, and not erode 

those rights. And it is about finding that right balance. 

So, in your testimony, Ms. Sencer, you state that employers are 

aware of union-organizing efforts before a petition is filed. I know 

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that you also suggest that some employers have these anti-union 

inoculation programs in place. I wonder if you could expand on 

those a little bit. How are they aware? Talk a little bit about some 

of the anti-union inoculation programs. 

And I also want to mention briefly that, my home State of Oregon, the legislature actually banned captive-audience meetings. 

That was challenged in the courts and upheld at the State level. 

So some States are taking action. 

So please expand. 

Ms. SENCER. The employers generally know because employees 

talk and employers listen. So every meeting that a union holds in 

an organizing campaign, they presume that at least one person in 

that room is actually going to go back and tell their manager that 

they were involved in the meeting. 

You see it through social media, where people are friends on 

Facebook with a supervisor and they posted that they have been 

to a meeting and are learning about a union. You see it where a 

group of people who don’t usually have lunch together will go out 

and have lunch at a restaurant across the street. A manager will 

do a walk by that restaurant and determine, oh, they are meeting 

with someone we don’t know and there is a union sticker there. 

The employers just gain knowledge by watching their workforce, 

and they generally notice well before a petition is filed. And that 

is when the anti-campaign starts. You know that is when the anticampaign starts and that the employer has knowledge because the 

statistics all show and experience plays out that some of the worst 

unfair labor practices happen in an attempt to get the petition not 

to be filed. 

If you fire a leader right before the petition is going to be filed, 

the union does not file—or expected to be filed, the union generally 

doesn’t file the petition right then. The support isn’t there because 

the workers are scared. They have seen what happens to an employee who speaks out or is looking to speak out in favor of unionization. 

The anti-campaigns that the employer runs walk the line of what 

is acceptable conduct and acceptable speech. They can’t make 

threats—they can’t make explicit threats or provide explicit benefits once the petition is filed. But there has been definitely more 

than one occasion where in the period right before the petition is 

filed an employer grants a wage increase. 

Ms. BONAMICI. Thank you. 

And, earlier, Ms. Davis said under the new rules there wouldn’t 

be an opportunity to litigate bargaining unit issues before an election. Do you agree with that? 

Ms. SENCER. I don’t. The limitation on the prehearing election 

would be dependent upon the size of the dispute that is in question. If it doesn’t affect more than 20 percent, you wouldn’t do it 

in advance. If it affects less than 20 percent, the employees who 

were involved would vote subject to a challenge ballot procedure, 

and that would then be resolved after the election if those are determinative. 

And when it comes to the supervisory issue, which can be kind 

of tricky sometimes—it is not always immediately clear—both sides 

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run the same risk of using those employees as part of the organizing campaign. 

If the union uses someone to solicit cards from other employees 

who is later found to be a supervisor, then the entirety of the election is tainted, just the same way that if the employer uses someone who is later found to be not a supervisor or is a supervisor in 

part of the unit, they would also taint the election. 

Ms. BONAMICI. Thank you. 

And, quickly, we have heard about the more than 65,000 comments that were submitted, and there is a suggestion that those 

weren’t considered. Is there any reason to believe—I assume that 

the comments were not all one-sided. Is there any reason to believe 

that the NLRB did not consider the comments in formulating this 

rule? 

Ms. SENCER. There is no reason to presume that they have not 

been considered or will be considered. Since we are still in the proposed rulemaking stage, a final rule hasn’t been issued yet. 

Ms. BONAMICI. And from the others—I still have a few seconds— 

is there any reason to believe that the NLRB is not considering the 

comments? 

Mr. MESSENGER. I would say because they issued the exact same 

rule again. They proposed this rule in 2011; there were 60,000- 

some comments. And then this year, just two weeks ago, three 

weeks ago, they issued the exact same rule verbatim. They didn’t 

take any of the comments into consideration. They just said, here 

it is again. 

And so I think that indicates that they didn’t consider those comments, and it is questionable whether they will consider them now. 

Ms. BONAMICI. Thank you. 

And I see my time has expired. 

Chairman KLINE. The gentlelady’s time has expired. 

Ms. BONAMICI. Thank you, Mr. Chairman. 

Chairman KLINE. Mr. Pocan? 

Mr. POCAN. Sure. Thank you, Mr. Chairman. I appreciate the 

chance to have a hearing about the NLRB and elections. 

And I come from a fairly, I think, unique perspective, is that I 

am a small-business owner of a specialty printing firm who is a 

union shop. So I come from a little bit of management and understand the labor perspective. 

And, you know, I am glad that we get a chance to talk about, 

I think, what happened three weeks ago in Tennessee, which was 

really a travesty. The fact that the only Volkswagen plants that 

don’t have these worker counsels or unions are in Russia, China, 

and Chattanooga should be a bit of concern to begin with. But the 

fact that the company was in general supportive, but it was outside 

players who came in. 

And I would like to pick up a little bit from where Mr. Tierney 

was, if I could, Mr. Messenger, with you, is, on the amicus that you 

filed, specifically, I guess, against a member on this committee, but 

you say, ‘‘Employers could enlist a mayor to inform employees that 

union representation will result in the loss of their employer’s contracts within the city. The various manners in which politicians 

could use the cloak of government authority to mislead employees 

to vote for or against union representation is endless.’’ 

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And I just, again, want you to take a look at that quote from 

Senator Corker. And, you know, just in the spirit of, I guess, intellectual honesty, isn’t it imperative that the board find objectionable 

conduct by government officials that can be constructed as official 

action to effect an election, isn’t that what the Senator is doing? 

Mr. MESSENGER. No. What happened in Trump Plaza is that representatives were— 

Mr. POCAN. No , I didn’t ask you about Trump Plaza. What I am 

asking you about is Senator Corker’s statement. 

So from what you just said about someone coming and trying to 

influence an election or elect a government official using that cloak 

of authority, you don’t see a cloak of authority in a U.S. Senator 

from the State saying that they are about to get another line of 

SUVs if they don’t certify the union? And even though the company 

said that is not true, they said the company had old talking points, 

you don’t find that to be in the spirit of your filing? 

Mr. MESSENGER. No, because, if anything, Senator Corker’s 

statement disclaimed an earlier statement by a member of Volkswagen management, actually, a board of directors, part of IG 

Metall, which is the German union, which suggested they wouldn’t 

get additional work without a workers’ council. 

Mr. POCAN. So you are not answering the question again. You 

are a lawyer; I am not. So let’s try answering the question the way, 

you know, I would. 

You don’t find that statement at all—in the spirit of what you 

said in your brief, you don’t find that is what that person is doing 

right there; Senator Corker is trying to influence the question with 

that statement? A yes-or-no answer. It is pretty simple. 

Mr. MESSENGER. Was he trying to influence the election? 

Mr. POCAN. Yeah. 

Mr. MESSENGER. He may have been trying to put out information 

about it. Would I find that— 

Mr. POCAN. Okay, so you don’t want to answer that. 

Let me try a different person, State Senator Bo Watson. State 

Senator Bo Watson said, ‘‘The members of the Tennessee Senate 

will not view unionization in the best interest of Tennessee. It will 

be exponentially more challenging for the legislature to approve future subsidies.’’ So now he is threatening subsidies. 

Was Senator Bo Watson in the spirit, intellectual honesty, in the 

spirit of your briefing, in violation? 

Mr. MESSENGER. No. 

Mr. POCAN. No. 

Mr. MESSENGER. Because he was not trying to impersonate an official board process. 

Mr. POCAN. So the fact that he is on the Commerce and Labor 

Committee doesn’t change your opinion. 

Mr. MESSENGER. No. And, actually— 

Mr. POCAN. And the fact that he is on the Ways and Means Committee that affects the finances of the State doesn’t change your 

opinion. 

Mr. MESSENGER. There is no question about who he is, but 

what— 

Mr. POCAN. Well, how about the fact that he is the president pro 

tem of the Senate? This is a guy who pulls strings and can get 

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things done. And when he says, you are going to lose this, you 

didn’t see that as undue influence in the spirit of your briefing? 

Mr. MESSENGER. I do not. And I request the permission to— 

Mr. POCAN. All right. I appreciate that. 

Mr. MESSENGER.—file a supplemental briefing on this to try to 

clarify this legal issue, because I don’t know if I will be getting an 

opportunity to fully express why it is distinguishable as a legal 

matter. 

Mr. POCAN. Yes. I just think, you know, it seems like there may 

be a little bit of intellectual honesty issues in what I read in your 

very words, and I see in the statement from Senator Corker and 

from the State Senator, Senator Watson, and yet you don’t seem 

to have a problem. 

Mr. MESSENGER. I— 

Mr. POCAN. You know, my perspective, I guess, as an employer— 

let me just take the broader on this. You know, I have basically all 

the face cards, and most have big numbers, in a poker game as an 

employer when it comes to an election like this. Right? I have the 

ability to hire someone, to fire someone, to give someone a pay 

raise, to promote them or not, to set their hours. So the fact that— 

and what the NLRB is doing is trying to make sure we have as 

equal a playing field when it comes to these elections. 

So, you know, you brought up some of the concerns about trying 

to share this data. I guess, a question for Ms. Sencer. One would 

be, can an employer currently use an email to contact an employee 

about the election? 

Ms. SENCER. Absolutely. 

Mr. POCAN. And can they use a telephone to do the same? 

Ms. SENCER. Absolutely. 

Mr. POCAN. So really this is about evening the playing field between what the employer can do to contact and what the union can 

do to contact? 

Ms. SENCER. Yes. And it is not unusual, actually, for an employer 

to include an insert in a pay statement with their wages that gives 

a message about anti-union— 

Mr. POCAN. Okay. 

And just really quickly in the remaining seconds I have, do you 

think the statements by Senator Corker and Senator Watson are 

in violation and should cause a new election by the NLRB? 

Ms. SENCER. I do think that they are probably going to be found 

to be objectionable, resulting in a rerun election, yes. 

Mr. POCAN. Thank you. 

Chairman KLINE. The gentleman’s time has expired. 

I want to certainly thank the witnesses and yield time to Mr. 

Miller for any closing remarks he may have. 

Mr. MILLER. I have no further remarks. I thank the witnesses 

very much for their participation today. 

Chairman KLINE. I thank the gentleman. 

I also want to thank the witnesses. Very expert testimony. I appreciate your forbearance sometimes and your willingness to engage in the debate and the discussion. We appreciate your time. 

There being no further business, the committee stands adjourned. 

[Questions submitted for the record and their responses follow:] 

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[Mr. Browne’s response to questions submitted for the record follows:] 

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[Whereupon, at 12:02 p.m., the committee was adjourned.] 

Æ 

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